LOAN AGREEMENT

Exhibit 10.1

LOAN AGREEMENT

Dated as of June 28, 2024

Among

THE ENTITIES IDENTIFIED ON EXHIBIT A ATTACHED HERETO,

collectively, as Borrower,

and

XXXXX FARGO BANK, NATIONAL ASSOCIATION,

XXXXXX XXXXXXX MORTGAGE CAPITAL HOLDINGS LLC,

SOCIÉTÉ GÉNÉRALE FINANCIAL CORPORATION,

BANK OF MONTREAL,

JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,

BARCLAYS BANK PLC,

XXXXXXX XXXXX BANK USA,

BANK OF AMERICA, N.A.,

DEUTSCHE BANK AG, NEW YORK BRANCH, and

THE LENDERS FROM TIME TO TIME PARTY HERETO

collectively, as Lender

and

XXXXX FARGO BANK, NATIONAL ASSOCIATION,

as Administrative Agent

and

XXXXX FARGO SECURITIES, LLC,

as Sole Bookrunner

and

XXXXX FARGO SECURITIES, LLC, XXXXXX XXXXXXX MORTGAGE CAPITAL HOLDINGS LLC, SOCIÉTÉ GÉNÉRALE, BMO CAPITAL MARKETS CORP., JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, BARCLAYS BANK PLC, XXXXXXX XXXXX BANK USA, BANK OF AMERICA, N.A., AND DEUTSCHE BANK SECURITIES INC.,

as Joint Lead Arrangers

and

BANK OF MONTREAL and XXXXXXX XXXXX BANK USA, as Co-Syndication Agents

TABLE OF CONTENTS

				Page

ARTICLE I	DEFINITIONS; PRINCIPLES OF CONSTRUCTION			2

	Section	1.1	Definitions	2
	Section	1.2	Principles of Construction	64

ARTICLE II	GENERAL TERMS			64

	Section	2.1	Loan Commitment; Disbursement to Borrower	64
		2.1.1	Agreement to Lend and Borrow	64
		2.1.2	No Reborrowings	64
		2.1.3	Intentionally Omitted	64
		2.1.4	The Note, Mortgages and Loan Documents	64
		2.1.5	Use of Proceeds	64
		2.1.6	Components of the Loan	65
	Section	2.2	Interest Rate	65
		2.2.1	Interest Rate	65
		2.2.2	Interest Calculation	66
		2.2.3	Default Rate	66
		2.2.4	Usury Savings	66
		2.2.5	Determination of Interest Rate	66
		2.2.6	Additional Costs	70
		2.2.7	Interest Rate Protection Agreement	70
	Section	2.3	Loan Payment	74
		2.3.1	Monthly Debt Service Payments	74
		2.3.2	Payments Generally	74
		2.3.3	Payment on Maturity Date	75
		2.3.4	Late Payment Charge	75
		2.3.5	Method and Place of Payment	75
	Section	2.4	Prepayments	75
		2.4.1	Voluntary Prepayments	75
		2.4.2	Mandatory Prepayments	77
		2.4.3	Prepayments After Default	78
		2.4.4	Application of Interest and Prepayments to Components	78
	Section	2.5	Reallocation of Allocated Loan Amounts	78
	Section	2.6	Release of Properties	78
		2.6.1	Release of Individual Property	79
		2.6.2	Releases of Release Parcels/Rights	82
		2.6.3	Release on Payment in Full	85
		2.6.4	Release of Reserve Funds	85
		2.6.5	Assignments of Mortgages	85

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	Section	2.7	Lockbox Account/Cash Management	85
		2.7.1	Lockbox Account	85
		2.7.2	Cash Management Account	87
		2.7.3	Payments Received under the Cash Management Agreement	87
		2.7.4	Distributions to Mezzanine Borrower	88
	Section	2.8	Extension of the Initial Maturity Date	88
	Section	2.9	Withholding Taxes	89

ARTICLE III	INTENTIONALLY OMITTED			93

ARTICLE IV	REPRESENTATIONS AND WARRANTIES			93

	Section	4.1	Borrower Representations	93
		4.1.1	Organization	93
		4.1.2	Proceedings	93
		4.1.3	No Conflicts	94
		4.1.4	Litigation	94
		4.1.5	Agreements	94
		4.1.6	Title	95
		4.1.7	Solvency	95
		4.1.8	Intentionally Omitted	95
		4.1.9	No Plan Assets	96
		4.1.10	Compliance	96
		4.1.11	Financial Information	96
		4.1.12	Condemnation	97
		4.1.13	Federal Reserve Regulations	97
		4.1.14	Utilities and Public Access	97
		4.1.15	Not a Foreign Person	97
		4.1.16	Separate Lots	97
		4.1.17	Assessments	97
		4.1.18	Enforceability	97
		4.1.19	No Prior Collateral Assignment	98
		4.1.20	Insurance	98
		4.1.21	Use of Property	98
		4.1.22	Certificate of Occupancy; Licenses	98
		4.1.23	Flood Zone	98
		4.1.24	Physical Condition	99
		4.1.25	Boundaries	99
		4.1.26	Leases	99
		4.1.27	Survey	100
		4.1.28	Principal Place of Business; State of Organization	100
		4.1.29	Filing and Recording Taxes	100
		4.1.30	Special Purpose Entity/Separateness	100

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(continued)

		4.1.31	Management Agreement	106
		4.1.32	Illegal Activity	106
		4.1.33	No Change in Facts or Circumstances; Disclosure	106
		4.1.34	Investment Company Act	106
		4.1.35	Embargoed Person	107
		4.1.36	Cash Management Account	107
		4.1.37	Reciprocal Easement Agreement	108
		4.1.38	Equipment, Fixtures and Personal Property	108
		4.1.39	Full and Accurate Disclosure	108
		4.1.40	Underwriting Representations	108
		4.1.41	Intentionally Omitted.	109
		4.1.42	Condominium	109
	Section	4.2	Survival of Representations	109
	Section	4.3	ERISA Representations of Lender	109

ARTICLE V	BORROWER COVENANTS			110

	Section	5.1	Affirmative Covenants	110
		5.1.1	Existence; Compliance with Legal Requirements	110
		5.1.2	Taxes and Other Charges	111
		5.1.3	Litigation	112
		5.1.4	Access to Properties	112
		5.1.5	Notice of Default	112
		5.1.6	Cooperate in Legal Proceedings	112
		5.1.7	Perform Loan Documents	112
		5.1.8	Award and Insurance Benefits	112
		5.1.9	Further Assurances	113
		5.1.10	Supplemental Mortgage Affidavits	113
		5.1.11	Financial Reporting	114
		5.1.12	Business and Operations	118
		5.1.13	Title to the Properties	118
		5.1.14	Costs of Enforcement	118
		5.1.15	Estoppel Statement	118
		5.1.16	Loan Proceeds	118
		5.1.17	Intentionally Omitted	119
		5.1.18	Intentionally Omitted	119
		5.1.19	Intentionally Omitted	119
		5.1.20	Leasing Matters	119

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		5.1.21	Alterations	120
		5.1.22	Operation of Property	122
		5.1.23	PILOT Lease.	122
		5.1.24	Intentionally Omitted	126
		5.1.25	Updated Appraisals	126
		5.1.26	Principal Place of Business, State of Organization	126
		5.1.27	Embargoed Person	126
		5.1.28	Special Purpose Entity/Separateness	127
		5.1.29	Access Laws	127
		5.1.30	Required Repairs	128
		5.1.1	Fremont Ground Lease.	128
		5.1.2	Condominium. Borrower covenants and agrees that:	128
	Section	5.2	Negative Covenants	128
		5.2.1	Operation of Property	128
		5.2.2	Liens; Utility and Other Easements	128
		5.2.3	Dissolution; Amendment of Organizational Documents	130
		5.2.4	Change in Business	130
		5.2.5	Debt Cancellation	130
		5.2.6	Zoning	131
		5.2.7	No Joint Assessment	131
		5.2.8	Principal Place of Business and Organization	131
		5.2.9	Intentionally Omitted	132
		5.2.10	Transfers	132
		5.2.11	Indebtedness. Borrower shall not incur any Indebtedness other than Permitted Debt.	137
		5.2.12	REA	137
		5.2.13	ERISA Matters	137
		5.2.14	Leasing Matters	137

ARTICLE VI	INSURANCE; CASUALTY; CONDEMNATION			138

	Section	6.1	Insurance.	138
	Section	6.2	Casualty	143
	Section	6.3	Condemnation	144
	Section	6.4	Restoration	144

ARTICLE VII	RESERVE FUNDS			150

	Section	7.1	Intentionally Omitted.	150
	Section	7.2	Tax and Insurance Reserve Funds	150
		7.2.1	Tax and Insurance Reserve Funds	150
	Section	7.3	Intentionally Omitted	151
	Section	7.4	Replacement Reserve Account.	151
		7.4.1	Deposits to Replacement Reserve Fund	151
		7.4.2	Withdrawals from Replacement Reserve Fund	151

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(continued)

	Section	7.5	Excess Cash Flow Reserve Fund.	152
		7.5.1	Deposits to Excess Cash Flow Reserve Fund	152
		7.5.2	Release of Excess Cash Flow Reserve Fund	152
	Section	7.6	Rate Cap Reserve Funds	154
	Section	7.7	Intentionally Omitted	155
	Section	7.8	Intentionally Omitted.	155
	Section	7.9	Intentionally Omitted	155
	Section	7.10	Letter of Credit	155
	Section	7.11	Reserve Accounts Generally	156
	Section	7.12	Distributions to Mezzanine Lenders.	157

ARTICLE VIII	DEFAULTS			158

	Section	8.1	Event of Default	158
	Section	8.2	Remedies	162
	Section	8.3	Remedies Cumulative; Waivers	164
	Section	8.4	Simultaneous Foreclosure	164

ARTICLE IX	SPECIAL PROVISIONS			164

	Section	9.1	Syndication.	164
		9.1.1	Sale of Notes and Securitization	166
		9.1.2	Splitting the Loan; Uncross of Properties	166
		9.1.3	Intentionally Omitted	166
		9.1.4	Syndication Costs	166
		9.1.5	Participations	167
		9.1.6	Assignments.	167
		9.1.7	Intentionally Omitted.	168
		9.1.8	Central Bank Pledges	168
	Section	9.2	Exculpation.	168
	Section	9.3	Matters Concerning Manager	171
	Section	9.4	Administrative Agent Fee	171

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(continued)

ARTICLE X	MISCELLANEOUS			171

	Section	10.1	Survival	171
	Section	10.2	Lender’s Discretion	171
	Section	10.3	Governing Law	172
	Section	10.4	Modification, Waiver in Writing	173
	Section	10.5	Delay Not a Waiver	173
	Section	10.6	Notices	173
	Section	10.7	Trial by Jury	174
	Section	10.8	Headings	174
	Section	10.9	Severability	174
	Section	10.10	Preferences	174
	Section	10.11	Waiver of Notice	174
	Section	10.12	Remedies of Borrower	175
	Section	10.13	Expenses; Indemnity.	175
	Section	10.14	Schedules Incorporated	176
	Section	10.15	Offsets, Counterclaims and Defenses	176
	Section	10.16	No Joint Venture or Partnership; No Third Party Beneficiaries	176
	Section	10.17	Publicity	176
	Section	10.18	Cross-Collateralization; Waiver of Marshalling of Assets	177
	Section	10.19	Waiver of Counterclaim	177
	Section	10.20	Conflict; Construction of Documents; Reliance	177
	Section	10.21	Brokers and Financial Advisors	178
	Section	10.22	Prior Agreements; Notice to Borrower	178
	Section	10.23	Joint and Several Liability	178
	Section	10.24	Register	178
	Section	10.25	Certain Additional Rights of Lender (VCOC)	179
	Section	10.26	Discounted Payoff	179
	Section	10.27	Use of Borrower Provided Information	180
	Section	10.28	Borrower Affiliate Lender	181
	Section	10.29	TRS Transfer	182
	Section	10.30	Approvals and Consents	183
	Section	10.31	Acknowledgement and Consent to Bail-In of Affected Financial Institutions	186
	Section	10.32	Pre-Negotiation Agreement	186
	Section	10.33	Intentionally Omitted	187
	Section	10.34	Acknowledgment Regarding Any Supported QFCs.	187
	Section	10.35	Funds Transfer Disbursements.	188
	Section	10.36	Counterparts; Electronic Signatures	189

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(continued)

ARTICLE XI	ADMINISTRATIVE AGENT AND CO-LENDER PROVISIONS			189

	Section	11.1	Appointment and Authorization	189
	Section	11.2	Xxxxx Fargo Bank, National Association as Lender	190
	Section	11.3	Collateral Matters; Protective Advances.	190
	Section	11.4	Post Foreclosure Plans.	191
	Section	11.5	Approvals of Lenders.	191
	Section	11.6	Notice of Events of Default.	192
	Section	11.7	Administrative Agent’s Reliance.	192
	Section	11.8	Indemnification of Administrative Agent.	192
	Section	11.9	Lender Credit Decision, Etc.	193
	Section	11.10	Successor Administrative Agent.	193
	Section	11.11	No Set Offs.	194
	Section	11.12	Defaulting Lenders.	194
	Section	11.13	Titled Agents.	195
	Section	11.14	Allocation of Proceeds.	196
	Section	11.15	Electronic Delivery of Certain Information.	196
	Section	11.16	Possession of Documents.	197
	Section	11.17	Standard of Care.	197
	Section	11.18	Distribution of Payments.	197
	Section	11.19	Erroneous Payments.	197

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(continued)

SCHEDULES AND EXHIBITS

Schedule 1.1(a)	–	Allocated Loan Amounts
Schedule 1.1(b)	–	Existing Management Agreement
Schedule 1.1(c)	–	Intentionally Omitted
Schedule 1.1(d)	–	Preapproved Alterations
Schedule 1.1(e)	–	Intentionally Omitted
Schedule 1.1(f)	–	Aggregate Square Footage
Schedule 1.1(g)	–	Condominium Documents
Schedule 1.1(h)	–	Intentionally Omitted
Schedule 1.1(i)	–	Intentionally Omitted
Schedule 1.1(j)	–	Reciprocal Easement Agreements
Schedule 1.1(k)	–	Net Operating Income Calculation
Schedule 1.1(l)	–	Intentionally Omitted
Schedule 1.1(m)	–	Property
Schedule 1.1(n)	–	Permitted Encumbrances
Schedule 1.1(o)	–	Intentionally Omitted
Schedule 1.1(p)	–	Intentionally Omitted
Schedule 1.1(q)	–	Previously-Owned Property
Schedule 1.1(r)	–	Previously-Owned Property Borrower
Schedule 2.6.2	–	Pre-Identified Release Parcels
Schedule 2.9	–	Section 2.9 Certificate
Schedule 4.1.1	–	Organizational Chart of Borrower
Schedule 4.1.4	–	Litigation
Schedule 4.1.5	–	Agreements
Schedule 4.1.6	–	Title
Schedule 4.1.12	–	Condemnations
Schedule 4.1.16	–	Combined Lots
Schedule 4.1.17	–	Assessments
Schedule 4.1.22	–	Zoning Issues
Schedule 4.1.26(a)	–	Leases
Schedule 4.1.26(b)	–	Rent Roll Discrepancies
Schedule 4.1.26(c)	–	Intentionally Omitted
Schedule 4.1.26(d)	–	Prepaid Rent
Schedule 4.1.26(e)	–	Outstanding Landlord Work
Schedule 4.1.26(f)	–	Rights of First Refusal or Similar Rights
Schedule 4.1.26(g)	–	Tenant Termination Rights
Schedule 4.1.28	–	Borrower Principal Place of Business
Schedule 4.1.30	–	Special Purpose Entity/Separateness
Schedule 4.1.31	–	Management Agreements
Schedule 4.1.33	–	No Change in Facts or Circumstances; Disclosure
Schedule 4.1.38	–	Equipment, Fixtures and Personal Property
Schedule 4.1.40	–	Underwriting Representations

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Schedule 5.1.30	–	Required Repairs
Schedule 5.1.31	–	Intentionally Omitted
Schedule 5.2.10	–	REIT Election
Schedule 5.2.14	–	Leasing Matters
Schedule 7.7.1	–	Reserved
Schedule 7.7.2	–	Reserved
Schedule 10.35	-	Disbursement Instruction Agreement

Exhibit A	–	Borrower
Exhibit B	–	Form of Subordination, Non-Disturbance and Attornment Agreement
Exhibit C	–	Form of Excess Cash Flow Guaranty
Exhibit D	–	Intentionally Omitted
Exhibit E	–	Intentionally Omitted
Exhibit F	–	Intentionally Omitted
Exhibit G	–	Form of Debt Yield Trigger Cure Guaranty
Exhibit H	–	Form of Rate Cap Reserve Guaranty
Exhibit I	–	Form of Pre-Negotiation Agreement

LOAN AGREEMENT

THIS LOAN AGREEMENT, dated as of June 28, 2024 (as amended, restated, replaced, supplemented or otherwise modified from time to time, this “Agreement”), between XXXXX FARGO BANK, NATIONAL ASSOCIATION, a national banking association, having an address at c/o Commercial Real Estate, 00 Xxxxxx Xxxxx, 000 Xxxx 00^xx Xxxxxx, Xxxxx 00, Xxx Xxxx, Xxx Xxxx 00000 (“Xxxxx”), XXXXXX XXXXXXX MORTGAGE CAPITAL HOLDINGS LLC, a New York limited liability company, having an address at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (“MS”), SOCIÉTÉ GÉNÉRALE FINANCIAL CORPORATION, a Delaware corporation, having an address at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (“SG”), BANK OF MONTREAL, a Canadian Chartered Bank acting through its Chicago Branch, having an address at c/o BMO Capital Markets Corp., 000 Xxxx 00^xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (“BMO”), JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, a national banking, having an address at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (“JPM”), BARCLAYS BANK PLC, a public limited company registered in England and Wales, having an address at 000 0xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (“Barclays”), XXXXXXX XXXXX BANK USA, a New York State-Chartered Bank, having an address at 0000 Xxxx Xxxxxx, 00xx Xxxxx, Xxxxxx, Xxxxx 00000(“GS”), BANK OF AMERICA, N.A., a national banking association, having an address at 000 Xxxxx Xxxxx Xxxxxx, XX0-000-00-00, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 (“BofA”), and DEUTSCHE BANK AG, NEW YORK BRANCH, having an address at 0 Xxxxxxxx Xxxxxx, 00^xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (“DBNY”, and together with Xxxxx, MS, SG, BMO, JPM, Barclays, GS, BofA, and their respective successors and/or assigns, collectively, the “Lender”), XXXXX FARGO BANK, NATIONAL ASSOCIATION, as agent for Lender (together with its successors and assigns, “Administrative Agent”), XXXXX FARGO SECURITIES, LLC, as Sole Bookrunner (in such capacity, the “Sole Bookrunner”), XXXXX FARGO SECURITIES, LLC, XXXXXX XXXXXXX MORTGAGE CAPITAL HOLDINGS LLC, SOCIÉTÉ GÉNÉRALE, BMO CAPITAL MARKETS CORP., JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, BARCLAYS BANK PLC, XXXXXXX XXXXX BANK USA, BANK OF AMERICA, N.A., AND DEUTSCHE BANK SECURITIES INC., as Joint Lead Arrangers (in such capacity, collectively, the “Joint Lead Arrangers”), BANK OF MONTREAL and XXXXXXX XXXXX BANK USA, as Co-Syndication Agents (in such capacity, collectively, the “Co-Syndication Agents”) and THE ENTITIES IDENTIFIED ON EXHIBIT A ATTACHED HERETO AS BORROWER (each an “Individual Borrower” and collectively and/or individually as the context may require, “Borrower”), each having its principal place of business at c/o Blackstone Real Estate Advisors, L.P., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, with respect to those certain Properties set forth on Schedule 1.1(m) attached hereto.

W I T N E S S E T H:

WHEREAS, Xxxxxxxx desires to obtain the Loan (as hereinafter defined) from Lender; and

WHEREAS, Xxxxxx is willing to make the Loan to Borrower, subject to and in accordance with the terms of this Agreement and the other Loan Documents (as hereinafter defined).

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

ARTICLE I

DEFINITIONS; PRINCIPLES OF CONSTRUCTION

Section

1.1 Definitions. For all purposes of this Agreement, except as otherwise expressly required or unless the context clearly indicates a contrary intent:

“40% Gap” shall have the meaning set forth in Section 6.1(b) hereof.

“40% Standard” shall have the meaning set forth in Section 6.1(b) hereof.

“Acceptable Blanket Policy” shall have the meaning set forth in Section 6.1(b) hereof.

“Acceptable Counterparty” shall mean a counterparty to the Interest Rate Protection Agreement (or the guarantor of such counterparty’s obligations) that until the expiration of the applicable Interest Rate Protection Agreement has and shall maintain, (i) a long-term senior unsecured debt or counterparty rating of at least A3 from Moody’s or (ii) a long-term senior unsecured debt or counterparty rating of at least A- by S&P. Notwithstanding anything to the contrary, (i) U.S. Bank, N.A. shall qualify as an Acceptable Counterparty, (ii) Xxxxx Fargo Bank, National Association shall qualify as an Acceptable Counterparty and (iii) SMBC Capital Markets, Inc. shall qualify as an Acceptable Counterparty subject to providing, if such entity does not itself satisfy the foregoing credit requirements, a guaranty on SMBC’s then-customary form from an affiliate satisfying the foregoing credit ratings requirements.

“Access Laws” shall have the meaning set forth in the definition of “Legal Requirements”.

“Additional Administrative Agent Decision” shall have the meaning set forth in Section 10.30(a) hereof.

“Additional Insolvency Opinion” shall have the meaning set forth in Section 4.1.30(d) hereof.

“Additional Insolvency Opinion Condition” shall mean that the aggregate amounts guaranteed pursuant to all Ancillary Guaranties, any Deductible Guaranties, and any Letters of Credit provided by any Insolvency Opinion Affiliate (or any Affiliate thereof that is also an Insolvency Opinion Affiliate), is in an aggregate amount equal to or greater than fifteen percent (15%) of the Outstanding Loan Amount.

“Additional Interest” shall have the meaning set forth in Section 2.4.1(a) hereof.

“Administrative Agent” shall have the meaning set forth in the introductory paragraph hereof, together with its successors and permitted assigns.

“Administrative Agent Decisions” shall have the meaning set forth in Section 10.30(a) hereof.

“Affected Financial Institution” shall mean (a) any EEA Financial Institution or (b) any UK Financial Institution.

“Affected Properties” shall have the meaning set forth in Section 9.1.2(b) hereof.

“Affiliate” shall mean, as to any Person, any other Person that, directly or indirectly, is in Control of, is Controlled by or is under common Control with such Person or is a director or officer of such Person or of an affiliate of such Person.

“Affiliate Lender” shall have the meaning set forth in Section 10.28 hereof.

“Affiliate Management Fee Subordination Condition” shall have the meaning set forth in the definition of “Capped Actual Management Fee Condition.”

“Affiliate Manager” shall mean any Manager in which Xxxxxxxx, SPE Constituent Entity or Guarantor Controls or has, directly or indirectly, fifty percent (50%) or more of the legal, beneficial or economic interest therein.

“Aggregate Material Adverse Effect” shall mean any event or condition that has a material adverse effect on (a) the use, operation, or value of the Properties taken as a whole, (b) the business, profits, operations or financial condition of Borrower (including, without limitation, Net Operating Income) taken as a whole, (c) the enforceability, validity, perfection or priority of the lien of the Mortgages or the other Loan Documents, in each case, taken as a whole or (d) the ability of Borrowers, as a whole, to repay the principal and interest of the Loan as it becomes due or to satisfy any of Borrowers’ other material obligations under the Loan Documents.

“Aggregate Square Footage” shall mean the aggregate rentable square footage in any of the improvements at the Properties (excluding the rentable square footage of each Release Property that shall have been released from the Lien of the related Mortgage pursuant to Section 2.6 prior to the date of determination). As of the Closing Date, the Aggregate Square Footage of each Individual Property is as set forth on Schedule 1.1(f) hereof.

“Agreement” shall have the meaning set forth in the introductory paragraph hereto.

“AI REIT” shall mean Apartment Income REIT, L.P., a Delaware limited partnership.

“Allocated Loan Amount” shall mean, with respect to each Individual Property, the amount set forth on Schedule 1.1(a) hereof (as may be reduced or reallocated from time to time pursuant to the terms and conditions hereof). For the avoidance of doubt, no portion of the Loan shall be allocated to any of the Release Parcels/Rights.

“ALTA” shall mean American Land Title Association, or any successor thereto.

“Alterations” shall have the meaning set forth in Section 5.1.21(a) hereof.

“Alterations Deposit” shall have the meaning set forth in Section 5.1.21(b) hereof.

“Alterations Guarantor” shall mean any of (i) Guarantor, (ii) one or more Replacement Sponsor Guarantors, (iii) one or more Replacement Affiliate Guarantors, or (iv) from and after a substitution in accordance with the terms hereof and of the Alterations Guaranty, any Replacement Guarantor.

“Alterations Guaranty” shall have the meaning set forth in Section 5.1.21(b) hereof.

“Alterations Guaranty Assumption” shall have the meaning set forth in Section 5.2.10(d)(i) hereof.

“Alterations Threshold Amount” shall mean five percent (5%) of the sum of the original principal amount of the Loan and the original principal amount of the Mezzanine Loan (if any).

“Alternate Index Rate” shall mean with respect to any Benchmark Transition Event the sum of: (a) the alternate benchmark rate that has been selected by Administrative Agent (after consultation with Borrower) giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body at such time or (ii) any evolving or then-prevailing market convention for determining a rate of interest as a replacement for the then-current Benchmark for U.S. dollar-denominated stand-alone floating rate balance sheet loans with sponsors similar to Sponsor at such time and (b) the Alternate Rate Spread Adjustment, provided, that, in no event shall the Alternate Index Rate for any Interest Period be deemed to be less than zero.

“Alternate Rate” shall mean, with respect to each Interest Period, the per annum rate of interest of the Alternate Index Rate determined as of the applicable Determination Date plus the Spread.

“Alternate Rate Loan” shall mean the Loan at such time as interest thereon accrues at a per annum rate of interest equal to the Alternate Rate for each Note.

“Alternate Rate Spread Adjustment” shall mean, with respect to any replacement of the then-current Benchmark with an Unadjusted Alternate Index Rate, the spread adjustment, or method for calculating or determining such spread adjustment (which may be a positive or negative value or zero) that has been selected by Administrative Agent giving due consideration to (a) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of the then-current Benchmark with the applicable Unadjusted Alternate Index Rate by the Relevant Governmental Body or (b) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of the then-current Benchmark with the applicable Unadjusted Alternate Index Rate for U.S. dollar-denominated floating rate balance sheet loans at such time with sponsors similar to Blackstone Sponsor.

“Alternate Release Price” shall have the meaning set forth in Section 2.6.1 hereof.

“Alternate Strike Price” shall mean a strike price chosen by Borrower in its sole discretion which is greater than the Strike Price and with respect to which the Alternate Strike Price Condition has been satisfied.

“Alternate Strike Price Condition” shall mean that Borrower has either (i) deposited in the Rate Cap Reserve Account, (ii) delivered a Letter of Credit, and/or (iii) delivered a Rate Cap Reserve Guaranty to Administrative Agent, in accordance with the terms and conditions of this Agreement, in each case, in an amount equal to, or with respect to the delivery of a Rate Cap Reserve Guaranty, guaranteeing the payment of an amount equal to, the applicable Rate Cap Reserve Amount (or permitted portion thereof pursuant to the Loan Documents).

“Ancillary Guarantor” shall mean, individually or collectively, as the context requires, Alterations Guarantor, Excess Cash Flow Guarantor, Rate Cap Reserve Guarantor and Debt Yield Trigger Cure Guarantor (in each case, only to the extent such entity has delivered the applicable Ancillary Guaranty in accordance with the terms of this Agreement and such Ancillary Guaranty has not terminated pursuant to its terms).

“Ancillary Guaranty” shall mean, individually or collectively, as the context requires, (a) the Alterations Guaranty, (b) the Excess Cash Flow Guaranty, (c) the Rate Cap Reserve Guaranty, (d) the Debt Yield Trigger Cure Guaranty, and (e) any Deductible Guaranty (in each case, only to the extent delivered in accordance with the terms of this Agreement).

“Annual Budget” shall mean the operating budget, including all planned Capital Expenditures, for the Properties prepared by or on behalf of Borrower in accordance with Section 5.1.11(f) hereof for the annual budgeting period.

“Annual Financial Statements” shall have the meaning set forth in Section 5.1.11(b) hereof.

“Applicable Public Records” shall have the meaning set forth in Section 9.2(b) hereof.

“Applicable Similar Law” shall have the meaning set forth in Section 4.1.9 hereof.

“Applicable Strike Price” shall mean (a) for purposes of calculating the Debt Service Coverage Ratio in connection with determination of a new Extension Strike Price, the new Extension Strike Price and (b) for all other purposes, the then-current existing Strike Price.

“Applicable Index Rate” shall mean, (I) Term SOFR, (II) the Unadjusted Alternate Index Rate if the Loan is an Alternate Rate Loan, or (III) the Prime Index Rate if the Loan is a Prime Rate Loan.

“Approval Standards” shall have the meaning set forth in Section 10.30(e) hereof.

“Approved Accounting Principles” shall mean (a) GAAP or (b) such other consistently applied accounting basis that is acceptable to Administrative Agent.

“Approved Alterations” shall have the meaning set forth in Section 5.1.21(a) hereof.

“Approved Annual Budget” shall have the meaning set forth in Section 5.1.11(f) hereof.

“Approved Borrower Sub” shall have the meaning set forth in Section 5.2.10(f) hereof.

“Approved Control Party” shall mean (x) one or more entities comprising any Approved Sponsor Entity, (y) following a Permitted Assumption, the Permitted Assumption Party(ies) or (z) following a Public Sale, the applicable Public Vehicle.

“Approved Drop Downs” shall have the meaning set forth in Section 5.2.10(f) hereof.

“Approved Policy” or “Approved Policies” shall have the meaning set forth in the Escrow Agreement, provided that, as it relates to the Approved Policies for the Escrowed Mortgages, such Approved Policy shall not contain any additional exceptions of record that did not exist in the form of the pro forma policy approved by Administrative Agent as of the Closing Date other than Permitted Interim Encumbrances or as otherwise approved by Administrative Agent in its sole discretion.

“Approved Sponsor Entity” shall mean any entity comprising Initial Sponsor and/or any Blackstone Fund Entity.

“Assignment of Interest Rate Protection Agreement” shall have the meaning set forth in Section 2.2.7(a) hereof.

“Assignment of Management Agreement” shall mean those certain Assignments of Management Agreement and Subordination of Management Fees, dated as of the Closing Date, among Administrative Agent, the applicable Borrower and the applicable Manager, as manager, as each of the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Audit Date” shall have the meaning set forth in Section 5.1.11(b) hereof.

“Award” shall mean any compensation paid by any Governmental Authority to Borrower or any of its Affiliates in connection with a Condemnation with respect to all or any part of any Individual Property.

“Bail-In Action” shall mean the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.

“Bail‑In Legislation” shall mean (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation, rule or requirement for such EEA Member Country from time to time which is described in the EEA Bail‑In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).

“Bankruptcy Action” shall mean with respect to any Person (a) such Person filing a voluntary petition under the Bankruptcy Code; (b) the filing of an involuntary petition against such Person under the Bankruptcy Code, or soliciting or causing to be solicited petitioning creditors for any involuntary petition against such Person under the Bankruptcy Code; (c) such Person filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it, by any other Person under the Bankruptcy Code; (d) such Person consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for such Person or any portion of any Individual Property; or (e) such Person making an assignment for the benefit of creditors. A Bankruptcy Action shall automatically cease upon a Bankruptcy Action Cure to the extent such Bankruptcy Action is eligible to be cured in accordance with the definition of “Bankruptcy Action Cure”.

“Bankruptcy Action Cure” shall mean, in the event of an involuntary Bankruptcy Action that was not consented to by Borrower or any SPE Constituent Entity, such Bankruptcy Action being discharged, stayed or dismissed within ninety (90) days of the filing thereof.

“Bankruptcy Code” shall mean Title 11 of the United States Code, 11 U.S.C. Sec. 101, et seq., as the same may be amended from time to time, and any successor statute or statutes and all rules and regulations from time to time promulgated thereunder, and any comparable foreign laws relating to bankruptcy, insolvency or creditors’ rights or any other Federal, state or foreign bankruptcy or insolvency law.

“Base Fee” shall have the meaning set forth in the definition of “Capped Actual Management Fee Condition.”

“Benchmark” shall mean (i) initially, the Term SOFR Reference Rate for a one-month tenor; and (ii) on and after the conversion to an Alternate Index Rate pursuant to Section 2.2.5 hereof, the Alternate Index Rate determined in accordance with the terms and conditions hereof.

“Benchmark Replacement Date” shall mean the earliest to occur of the following events with respect to the then-current Benchmark:

(1) in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date of the public statement or publication of information referenced therein and (b) the date on which the administrator of the Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide the Benchmark (or such component thereof); and

(2) in the case of clause (3) of the definition of “Benchmark Transition Event,” the first date on which such Benchmark (or the published component used in the calculation thereof) has been determined and announced by or on behalf of the administrator of such Benchmark (or such component thereof) or the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be non-representative or non-compliant with or non-aligned with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks; provided that such non-representativeness, non-compliance or non-alignment will be determined by reference to the most recent statement or publication referenced in such clause (3) and even if any available tenor of such Benchmark (or such component thereof) continues to be provided on such date.

“Benchmark Transition Event” shall mean the occurrence of one or more of the following events with respect to the then-current Benchmark:

(1) a public statement or publication of information by or on behalf of the administrator of the Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide the Benchmark (or such component thereof), permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide the Benchmark (or such component thereof);

(2) a public statement or publication of information by the regulatory supervisor for the administrator of the Benchmark (or the published component used in the calculation thereof), the central bank for the currency of the Benchmark, an insolvency official with jurisdiction over the administrator for the Benchmark (or such component), a resolution authority with jurisdiction over the administrator for the Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for the Benchmark (or such component), which states that the administrator of the Benchmark (or such component) has ceased or will cease to provide the Benchmark (or such component) permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide the Benchmark (or such component); or

(3) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) or the regulatory supervisor for the administrator of such Benchmark (or such component thereof) announcing that the Benchmark (or such component thereof) is not, or as of a specified future date will not be, representative or in compliance with or aligned with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks.

“Benchmark Unavailability Period” shall mean unless and until an Alternate Index Rate is implemented with respect to the then-current Benchmark pursuant to Section 2.2.5(d) (rather than pursuant to Section 2.2.5(b)), each Interest Period (if any) for which Administrative Agent determines that (a) adequate and reasonable means do not exist for ascertaining the Applicable Index Rate (including, if the Benchmark is the Term SOFR Reference Rate, that Term SOFR cannot be determined in accordance with the definition thereof) or (b) that it is unlawful to use the then-current Benchmark to determine the applicable Interest Rate for any Interest Period.

“Blackstone Fund Entity” shall mean, individually or collectively, as the context requires, any entity comprising (i) intentionally omitted, (ii) Blackstone Real Estate Partners VIII L.P., and any parallel vehicles or alternative investment vehicles comprising such fund (including Blackstone Real Estate Partners VIII NQ L.P.) and any co-investment or managed vehicles Controlled by or under common Control with any of the foregoing entities (“BREP VIII”), (iii) Blackstone Real Estate Partners IX L.P., Blackstone Real Estate Partners IX.TE.1 L.P., Blackstone Real Estate Partners IX.TE.2 L.P., Blackstone Real Estate Partners IX.TE.3 L.P., Blackstone Real Estate Partners IX.F (AV-1) L.P., and any parallel vehicles, partnerships or alternative investment vehicles comprising the real estate investment fund commonly known as Blackstone Real Estate Partners IX (including Blackstone Real Estate Partners IX NQ L.P.) and any co-investment or managed vehicles Controlled by or under common Control with the foregoing entities (“BREP IX”), (iv) Blackstone Real Estate Partners X L.P., and any parallel vehicles or alternative investment vehicles comprising such fund (including Blackstone Real Estate Partners X NQ L.P.) and any co-investment or managed vehicles Controlled by or under common Control with any of the foregoing entities (“BREP X”), (v) Blackstone Real Estate Income Trust, Inc. or any successor thereto, (vi) XXXXX Operating Partnership L.P. or any successor thereto (“XXXXX”), (vii) Blackstone Property Partners Lower Fund 1 L.P. and Blackstone Property Partners Lower Fund 2 L.P. or any successor thereto, and any parallel vehicles or alternative investment vehicles comprising the real estate investment fund commonly known as Blackstone Property Partners and any co-investment or managed vehicles Controlled thereby or under common Control with any of the foregoing entities (collectively, “BPP”), (viii) any entity comprising any real estate investment fund commonly known as a Blackstone Real Estate Partners fund (including, without limitation, BREP VIII, BREP IX or BREP X), and any parallel vehicles or alternative investment vehicles comprising such fund and any co-investment or managed vehicles Controlled by or under common Control with any of the foregoing entities (each such fund, a “BREP Fund”), or (ix) any entity comprising any other real estate investment fund sponsored by Blackstone Inc. (or any successor thereto) and any parallel vehicles or alternative investment vehicles comprising such fund and any co-investment or managed vehicles Controlled by or under common Control with any of the foregoing entities (each, an “Other Blackstone Fund”).

“Borrower” shall have the meaning set forth in the introductory paragraph hereto, together with each such Person’s successors and permitted assigns.

“Borrower DY Deficiency Reserve” shall have the meaning set forth in Section 2.6.1(a)(v) hereof.

“Borrower Interest Rate Cap Party” shall mean the Representative Borrower or any other Individual Borrower selected by Borrower and party to any Interest Rate Protection Agreement or Replacement Interest Rate Protection Agreement, as may be in effect from time to time, in accordance with the terms hereof.

“Borrower Reporting Update” shall have the meaning set forth in Section 5.1.11(m) hereof.

“Breakage Costs” shall have the meaning set forth in Section 2.2.5(h) hereof.

“Budget Submission Date” shall have the meaning set forth in Section 5.1.11(f) hereof.

“Business Day” shall mean any day other than a Saturday, Sunday or any other day on which any of the following are not open for business: (i) national banks in New York, New York, (ii) the New York Stock Exchange, (iii) the Federal Reserve Bank of New York or (iv) provided that Borrower shall have received written notice thereof (which written notice, in the case of any determination of any Payment Date or the date upon which any other payment hereunder is required to be made pursuant to Section 2.3.2 shall have been delivered to Borrower not less than thirty (30) days prior to such date), the principal place of business of the Cash Management Bank, the Lockbox Bank or the financial institution that maintains any Reserve Account.

“Cap Account” shall mean the Lockbox Account, as further described on Schedule II of the Assignment of Interest Rate Protection Agreement.

“Capital Expenditures” shall mean, for any period, the amount expended for items capitalized under Approved Accounting Principles (including expenditures for building improvements, replacements or major repairs, leasing commissions and tenant improvements).

“Capped Actual Management Fee Condition” shall mean satisfaction of each of the following: (i) Manager is an Affiliate of Borrower (and no third-party sub-management agreement has been entered into), (ii) no Cash Sweep Event (including resulting from an Event of Default) is then continuing and (iii) all amounts payable to such Manager pursuant to the applicable Management Agreement which exceeds two and one-half percent (2.5%) of Gross Income from Operations (the “Base Fee”) with respect to any Individual Property shall be paid to such Manager only from available cash flow from the operation of such Individual Property after payment to Lender of Debt Service (including Mezzanine Debt Service) and payment of all other Priority Waterfall Payments (this clause (iii), the “Affiliate Management Fee Subordination Condition”).

“Cash Management Account” shall have the meaning set forth in Section 2.7.2 hereof.

“Cash Management Agreement” shall mean the Closing Date Cash Management Agreement or any Replacement Cash Management Agreement, as applicable, in each case, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Cash Management Bank” shall mean Xxxxx Fargo Bank, National Association, a national association, or any Replacement Cash Management Bank.

“Cash Sweep Cure Date” shall mean the first date following the occurrence of a Cash Sweep Event on which (i) with respect to a Cash Sweep Event caused by a Debt Yield Trigger Event, a Debt Yield Trigger Event Cure has taken place, (ii) with respect to a Cash Sweep Event caused by an Event of Default, no Event of Default is continuing, (iii) with respect to a Cash Sweep Event caused by a Mezzanine Loan Default, no Mezzanine Loan Default is continuing, or (iv) with respect to a Cash Sweep Event as a result of a Bankruptcy Action of Borrower, a Bankruptcy Action Cure has occurred.

“Cash Sweep Event” shall mean the occurrence of: (a) an Event of Default; (b) a Mezzanine Loan Default; (c) any Bankruptcy Action of Borrower; or (d) a Debt Yield Trigger Event.

“Cash Sweep Period” shall mean the period commencing on the occurrence of a Cash Sweep Event and terminating on the Cash Sweep Cure Date.

“Cash Sweep Period Instructions” shall have the meaning set forth in Section 2.7.1(c) hereof.

“Casualty” shall have the meaning set forth in Section 6.2 hereof.

“Casualty Consultant” shall have the meaning set forth in Section 6.4(b)(iii) hereof.

“Casualty Retainage” shall have the meaning set forth in Section 6.4(b)(iv) hereof.

“Casualty/Condemnation Prepayment” shall have the meaning set forth in Section 6.4(f) hereof.

“Casualty/Condemnation Threshold Amount” shall mean, with respect to any Individual Property, the greater of (x) ten percent (10%) of the sum of the Allocated Loan Amount of such Individual Property, and, if applicable, the allocated loan amount for such Individual Property under any Mezzanine Loan and (y) five percent (5%) of the sum of the Outstanding Loan Amount and, if applicable, the Outstanding Mezzanine Loan Amount.

“Central Bank Pledge” shall have the meaning set forth in Section 9.1.8 hereof.

“Certificate of Rent Roll” shall mean a Certificate of Rent Roll, dated as of the Closing Date, certifying and attaching a rent roll for each Individual Property, which rent roll shall not be dated any earlier than the month prior to the Closing Date.

“Closing Date” shall mean the date of this Agreement.

“Closing Date Cash Management Agreement” shall mean that certain Cash Management Agreement, dated as of the Closing Date, by and among Borrower and Administrative Agent, as the same may be subsequently joined to or assumed by Cash Management Bank.

“Closing Date Debt Yield” shall mean 8.51%.

“Closing Date Deductible Guaranty” shall mean that certain Deductible Guaranty dated as of the Closing Date and executed and delivered by Guarantor in connection with the Loan to and for the benefit of Administrative Agent, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Closing Date Lockbox Agreement” shall mean, that certain Deposit Account Control Agreement, dated as of the Closing Date, among Borrower, Administrative Agent and Lockbox Bank, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Code” shall mean the Internal Revenue Code of 1986, as amended, as it may be further amended from time to time, and applicable U.S. Department of Treasury regulations issued pursuant thereto in temporary or final form.

“Collateral” shall mean any real or personal property securing any of the Debt or any other obligation of a Loan Party or in respect of any Loan Document to which it is a party and all other property subject to a Lien created by a Loan Document.

“Collective Group” shall mean, collectively, each Borrower and each SPE Constituent Entity.

“Commitment” shall mean, as to each Lender, its Pro Rata Share of the Loan, as such amount may be reduced or adjusted from time to time in accordance with this Agreement.

“Common Charges” shall mean all fees, dues, charges and assessments, whether annual, monthly, regular, special or otherwise payable by Borrower under the Condominium Documents, but excluding Section 2.9 Taxes and without duplication of Taxes, Other Charges and Insurance Premiums.

“Competitor” shall mean any direct competitor of Guarantor, Sponsor, Blackstone Inc. or any of their respective Affiliates that is primarily engaged in the business of owning or operating commercial real estate in the ordinary course; provided that Affiliates of such competitors that are regularly engaged in the business of commercial real estate lending, including Affiliates of such competitors who regularly purchase commercial real estate debt securities, shall not be “Competitors.”

“Component” shall have the meaning set forth in Section 2.1.6 hereof.

“Component Spread” shall have the meaning set forth in Section 2.1.6 hereof.

“Componentization Event” shall mean any syndication of the Loan involving an A/B or senior/subordinate structure. For the avoidance of doubt, (a) no Componentization Event shall occur without the consent of Borrower, which consent may be granted or withheld in Borrower’s reasonable discretion and (b) a Componentization Event shall be applicable only to the Loan and not any Mezzanine Loan (or give additional rights to Administrative Agent or Lenders to create a Mezzanine Loan).

“Componentization Notice” shall have the meaning set forth in Section 2.1.6 hereof.

“Condemnation” shall mean a temporary or permanent taking by any Governmental Authority as the result or in lieu or in anticipation of the exercise of the right of condemnation or eminent domain, of all or any part of any Individual Property, or any interest therein or right accruing thereto, including any right of access thereto or any change of grade affecting such Individual Property or any part thereof.

“Condemnation Proceeds” shall have the meaning set forth in Section 6.4(b) hereof.

“Condominium” shall mean, collectively, the condominium regimes created pursuant to the Condominium Documents.

“Condominium Documents” shall mean the documents set forth on Schedule 1.1(g) attached hereto with respect to each Condominium, as each of the same may be amended, restated, replaced or otherwise modified from time to time in accordance with the terms and conditions of this Agreement.

“Condominium Law” shall mean, with respect to each Condominium, all applicable local, state and federal laws, rules and regulations related to the establishment, maintenance and governance of condominiums in the applicable State(s) where such Condominium is located.

“Confidential Information” shall have the meaning set forth in Section 10.32 hereof.

“Conforming Changes” shall mean, with respect to the use, administration, adoption or implementation of any Alternate Index Rate, any technical, administrative or operational changes (including changes to the definition of “Business Day,” “Determination Date”, “Interest Period,” and “U.S. Government Securities Business Day,” preceding and succeeding business day conventions and other administrative or operational matters, timing and frequency of determining rates and other administrative matters, but expressly excluding changes to the frequency of making payments of interest) that Administrative Agent determines (after consultation with Borrower) are necessary to reflect the adoption and implementation of such Alternate Index Rate in a manner consistent with market practice for U.S. dollar-denominated floating rate balance sheet loans at such time with sponsors similar to Sponsor (or, if Administrative Agent decides (after consultation with Borrower) that adoption of any portion of such market practice is not administratively feasible or if Administrative Agent determines that no market practice for the administration of any such rate exists, in such other manner of administration as Administrative Agent decides (after consultation with Xxxxxxxx) is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents); provided, in each case, in no event shall Conforming Changes (a) result in an increase to (x) the number of days between the Payment Date and the end of the applicable Interest Period or (y) the Interest Rate in effect immediately prior to the adoption of such Conforming Changes other than a change due to the Alternate Rate Spread Adjustment or (b) amend the Payment Date.

“Consent Request Date” shall have the meaning set forth in Section 10.30(f) hereof.

“Consumer Price Index” shall mean the All Items Consumer Price Index for all Urban Consumers (CPI-U) for the US City Average, 1982-84=100, as published by the United States Department of Labor, Bureau of Labor Statistics or any substitute index hereafter adopted by the Department of Labor.

“Contribution Agreement” shall mean that certain Contribution Agreement, dated as of the Closing Date, by and among each Borrower and Administrative Agent, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Control” shall mean the possession, directly or indirectly, of the power to direct or cause the direction of management, policies or activities of a Person, whether through ownership of voting securities, by contract or otherwise; provided that customary major decision rights of holders of direct or indirect interests in Borrower shall not constitute “Control” by such holders nor shall such major decision rights negate “Control” by the party that is subject to such major decision rights. “Controlled” and “Controlling” shall have correlative meanings.

“Controlling Interest Transfer” shall have the meaning set forth in Section 5.2.10(e) hereof.

“Converted Interest Rate Protection Agreement” shall have the meaning set forth in Section 2.2.7(g)(i) hereof.

“Debt” shall mean the Outstanding Loan Amount, together with all interest accrued and unpaid thereon, and all other sums due to Administrative Agent and Lender in respect of the Loan under the Note, this Agreement, the Mortgages and the other Loan Documents.

“Debt Service” shall mean, with respect to any particular period of time, the scheduled interest payments due under this Agreement and the Note.

“Debt Service Coverage Ratio” shall mean a ratio in which (a) the numerator is the Net Operating Income and (b) the denominator is the aggregate amount of Debt Service and Mezzanine Debt Service that would be payable pursuant to this Agreement and, if there is a Mezzanine Loan outstanding at such time, the Mezzanine Loan Agreement during the twelve (12) month period following the date of calculation calculated using (A) with respect to the Loan, (i) the Outstanding Loan Amount as of the applicable date of determination and (ii) an Interest Rate calculated based on the sum of (x) (I) the Weighted Average Spread, if the Loan is a SOFR Loan, (II) the Prime Rate Spread, if the Loan is a Prime Rate Loan and (III) the Weighted Average Spread plus the Alternate Rate Spread Adjustment, if the Loan is an Alternate Rate Loan, as applicable and (y) the Applicable Strike Price and (B) with respect to the Mezzanine Loan, if any, (i) the Outstanding Mezzanine Loan Amount as of the applicable date of determination and (ii) an Interest Rate (as defined in the Mezzanine Loan Agreement) calculated based on the sum of (x)(I) the Spread (as defined in the Mezzanine Loan Agreement, if the Mezzanine Loan is a SOFR Loan (as defined in the Mezzanine Loan Agreement)), (II) the Prime Rate Spread (as defined in the Mezzanine Loan Agreement), if the Mezzanine Loan is a Prime Rate Loan (as defined in the Mezzanine Loan Agreement) and (III) the Spread (as defined in the Mezzanine Loan Agreement) plus the Alternate Rate Spread Adjustment (as defined in the Mezzanine Loan Agreement), if the Mezzanine Loan is an Alternate Rate Loan (as defined in the Mezzanine Loan Agreement), as applicable, and (y) the Applicable Strike Price (as defined in the Mezzanine Loan Agreement).

“Debt Yield” shall mean, as of any date of determination, a fraction (a) the numerator of which is the Net Operating Income calculated as of such date and (b) the denominator of which is the aggregate of (x) the then Outstanding Loan Amount as of such date and (y) if there is a Mezzanine Loan outstanding at such time, the then Outstanding Mezzanine Loan Amount as of such date (provided, that if there is a Mezzanine Loan outstanding and such Mezzanine Loan has been the subject of a Discounted Payoff, then the Outstanding Mezzanine Loan Amount shall be deemed reduced by the amount of such Mezzanine Loan retired in connection with the related Discounted Payoff).

“Debt Yield Cure Collateral” shall have the meaning set forth in the definition of “Debt Yield Trigger Event Cure”.

“Debt Yield Deficiency” shall mean the amount by which the then Outstanding Loan Amount and the then Outstanding Mezzanine Loan Amount, in the aggregate, need to be reduced in order for the Release Debt Yield to equal or be greater than the Closing Date Debt Yield.

“Debt Yield Determination Date” shall mean the date of Xxxxxxxx’s delivery to Administrative Agent of the quarterly financial reporting set forth in Section 5.1.11(e) hereof (or if Borrower shall fail to deliver to Administrative Agent such financial reporting set forth in Section 5.1.11(e) hereof by the deadlines set forth in Section 5.1.11(e) hereof, such date as selected by Administrative Agent to reflect such period as would have been covered in the quarterly financial reporting set forth in Section 5.1.11(e) if the same was delivered by the deadlines set forth in Section 5.1.11(e) hereof).

“Debt Yield Threshold” shall mean six and one-quarter percent (6.25%).

“Debt Yield Trigger Cure Guarantor” shall mean any of (i) Guarantor, (ii) one or more Replacement Sponsor Guarantor(s) or (iii) one or more Replacement Affiliate Guarantors.

“Debt Yield Trigger Cure Guaranty Assumption” shall have the meaning set forth in Section 5.2.10(d)(i) hereof.

“Debt Yield Trigger Cure Guaranty” shall have the meaning ascribed to such term in the definition of “Debt Yield Trigger Event Cure” pursuant to Section 1.1 hereof.

“Debt Yield Trigger Cure Prepayment Amount” shall mean the aggregate amount of the Loan and the Mezzanine Loans that if partially prepaid would result in a Debt Yield equal to the Debt Yield Threshold.

“Debt Yield Trigger Event” shall mean that, as of any Debt Yield Determination Date, the Debt Yield for the two (2) consecutive calendar quarters immediately preceding such Debt Yield Determination Date is less than the Debt Xxxxx Xxxxxxxxx.

“Debt Yield Trigger Event Cure” shall mean the occurrence of any of the following: (i) the Debt Yield, as determined as of the first day of each of any two (2) consecutive calendar quarters following the occurrence of the applicable Debt Yield Trigger Event is no less than the Debt Yield Threshold, (ii) Borrower prepays the Loan in an amount equal to Lender’s Allocation of the Debt Yield Trigger Cure Prepayment Amount and, if a Mezzanine Loan is outstanding, the Mezzanine Borrower prepays the Mezzanine Loan in an amount equal to Lender’s Allocation (as defined in the Mezzanine Loan Agreement) of the Debt Yield Trigger Cure Prepayment Amount (provided that in the event of a prepayment pursuant to this clause (ii), the Debt Yield Trigger Period shall cease upon such prepayment without any obligation to wait two (2) consecutive calendar quarters), (iii) Debt Yield Trigger Cure Guarantor delivers to Administrative Agent a guarantee in form and substance of the Debt Yield Trigger Cure Guaranty attached as Exhibit G hereto or otherwise reasonably acceptable to Administrative Agent (the “Debt Yield Trigger Cure Guaranty”) which Debt Yield Trigger Cure Guaranty shall (1) be in an amount equal to Lender’s Allocation of the Debt Yield Trigger Cure Prepayment Amount and (2) if the Additional Insolvency Opinion Condition is satisfied, then Borrower shall deliver an Additional Insolvency Opinion reasonably acceptable to Administrative Agent, which takes into account such Debt Yield Trigger Cure Guaranty, and, if a Mezzanine Loan is outstanding, Debt Yield Trigger Cure Guarantor shall deliver to the Mezzanine Lender a guarantee in form and substance as the form attached to the Mezzanine Loan Agreement or as otherwise reasonably acceptable to such Mezzanine Lender (the “Mezzanine Debt Yield Trigger Cure Guaranty”) which Mezzanine Debt Yield Trigger Cure Guaranty shall (1) be in an amount equal to Lender’s Allocation (as defined in the Mezzanine Loan Agreement) of the Debt Yield Trigger Cure Prepayment Amount and (2) if the Additional Insolvency Opinion Condition (as defined in the Mezzanine Loan Agreement) is satisfied, then Mezzanine Borrower shall deliver an Additional Insolvency Opinion (as defined in such Mezzanine Loan Agreement) reasonably acceptable to Mezzanine Lender, which takes into account such Mezzanine Debt Yield Trigger Cure Guaranty, and such Debt Yield Trigger Cure Guaranty shall be terminated by Administrative Agent and, if a Mezzanine Loan is outstanding, such Mezzanine Debt Yield Trigger Cure Guaranty shall be terminated by the Mezzanine Lender upon the earlier of (x) the occurrence of a Debt Yield Trigger Event Cure pursuant to clause (i) or (ii) above or (iv) below (provided that no other Cash Sweep Period is then in effect), and (y) with respect to the portion guaranteed by Guarantor to Administrative Agent or Mezzanine Lender, the repayment of the Debt or the Mezzanine Loan Debt, as applicable, in full, or (iv) Borrower delivers to Administrative Agent cash and/or a Letter of Credit in an amount equal to Lender’s Allocation of the Debt Yield Trigger Cure Prepayment Amount (the “Debt Yield Cure Collateral”) and Mezzanine Borrower delivers to the Mezzanine Lender cash and/or a Letter of Credit in an amount equal to Lender’s Allocation (as defined in the Mezzanine Loan Agreement) the Debt Yield Trigger Cure Prepayment Amount (the “Mezzanine Debt Yield Cure Collateral”), which such Debt Yield Cure Collateral shall be held by Administrative Agent in escrow as additional collateral for the Loan (and shall be held by the Mezzanine Lender in escrow as additional collateral for the Mezzanine Loan) and shall be returned to Borrower by Administrative Agent and be returned to the Mezzanine Borrower by the Mezzanine Lender upon the earlier of (x) the occurrence of a Debt Yield Trigger Event Cure pursuant to clause (i), (ii) or (iii) above (provided that no other Cash Sweep Period is then in effect), and (y) with respect to the portion held by Administrative Agent or Mezzanine Lender, the repayment of the Debt or the Mezzanine Loan Debt, as applicable, in full. For the avoidance of doubt, (1) the Debt Yield Cure Collateral shall not be applied by Administrative Agent for the benefit of Lenders and the Debt Yield Trigger Cure Guaranty shall not be drawn on by Administrative Agent to satisfy any portion of the Debt other than during the continuance of a Priority Payment Cessation Event and (2) the Mezzanine Debt Yield Cure Collateral shall not be applied by Mezzanine Lender and any Mezzanine Debt Yield Trigger Cure Guaranty shall not be drawn on by Mezzanine Lender to satisfy any portion of the Mezzanine Loan Debt other than during the continuance of a Priority Payment Cessation Event (as defined in the Mezzanine Loan Agreement). In the event the Debt Yield Trigger Event Cure is achieved by delivery of the Debt Yield Cure Collateral or the Debt Yield Trigger Cure Guaranty to Administrative Agent and delivery of the Mezzanine Debt Yield Cure Collateral or the Mezzanine Debt Yield Trigger Cure Guaranty to Mezzanine Lender in accordance with the terms hereof, the applicable Debt Yield Trigger Period shall cease upon delivery of (y) such Debt Yield Cure Collateral to Administrative Agent and such Mezzanine Debt Yield Cure Collateral to the Mezzanine Lender or (z) such Debt Yield Trigger Cure Guaranty to Administrative Agent and such Mezzanine Debt Yield Trigger Cure Guaranty to the Mezzanine Lender, without any obligation to wait two (2) consecutive calendar quarters. In addition, Borrower may elect, in its sole discretion, to cause the occurrence of any Debt Yield Trigger Event Cure to avoid a Cash Sweep Period from occurring.

“Debt Yield Trigger Period” shall mean the period from the date of the occurrence of a Debt Yield Trigger Event until the date that a Debt Yield Trigger Event Cure occurs in respect of such Debt Yield Trigger Event.

“Deductible Guaranty” shall have the meaning set forth in Section 6.1(a)(i) hereof. For the avoidance of doubt, the Closing Date Deductible Guaranty constitutes a Deductible Guaranty hereunder.

“Deemed Approval Requirements” means, with respect to a request by Borrower for Administrative Agent’s or Xxxxxx’s approval or consent, that:

(i) if the first correspondence from Borrower to Administrative Agent or Lender, as applicable, requesting such approval or consent contains a bold-faced, conspicuous legend at the top of the first page thereof stating “FIRST NOTICE: THIS IS A REQUEST FOR CONSENT UNDER THE PROJECT ASTRO PORTFOLIO LOAN. FAILURE TO RESPOND TO THIS REQUEST WITHIN 10 BUSINESS DAYS MAY RESULT IN THE REQUEST BEING DEEMED GRANTED,” and is accompanied by such information and documents as is reasonably required for Administrative Agent or Lender, as applicable, to adequately evaluate such request and as reasonably requested by Administrative Agent or Lender, as applicable, in writing prior to the expiration of such ten (10) Business Day period, and

(ii) if Administrative Agent or Lender, as applicable, fails to grant or withhold its approval to such request within such ten (10) Business Day period, a second notice requesting approval is delivered to Administrative Agent or Lender, as applicable, from Borrower containing a bold-faced, conspicuous legend at the top of the first page thereof stating that “SECOND AND FINAL NOTICE: THIS IS A REQUEST FOR CONSENT UNDER THE PROJECT ASTRO PORTFOLIO LOAN. FAILURE TO RESPOND TO THIS REQUEST IN WRITING WITHIN 5 BUSINESS DAYS WILL RESULT IN YOUR APPROVAL BEING DEEMED GRANTED,” and is accompanied by such information and documents as is reasonably required for Administrative Agent, or Lender, as applicable, to adequately evaluate such request and as reasonably requested by Administrative Agent or Lender, as applicable, in writing prior to the expiration of such five (5) Business Day period, and if Administrative Agent or Lender, as applicable, fails to grant or withhold its approval to such request (or denies such request without stating the grounds for such denial in reasonable detail) prior to the expiration of such five (5) Business Day period.

“Default” shall mean the occurrence of any event hereunder or under any other Loan Document which, but for the giving of notice or passage of time, or both, would be an Event of Default.

“Default Rate” shall mean, with respect to any Note (or Component, if applicable), a rate per annum equal to the lesser of (a) the Maximum Legal Rate and (b) three percent (3%) above the Interest Rate otherwise applicable to each Note (or Component, if applicable).

“Default Release” shall have the meaning set forth in Section 2.6.1(c) hereof.

“Defaulting Lender” shall mean, subject to Section 11.12(d), any Lender that (a) has failed to pay to Administrative Agent or any Lender any other amount required to be paid by it hereunder within two (2) Business Days of the date when due or (b) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity, (ii) become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow, or disaffirm any contracts or agreements made with such Lender or (iii) become an Embargoed Person. Any determination by Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) or (b) above, and of the effective date of such status, shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 11.12(d)) as of the date established therefor by Administrative Agent in a written notice of such determination, which shall be delivered by Administrative Agent to Borrower and each Lender promptly following such determination.

“Determination Date” shall mean, with respect to any Interest Period, (x) if the Loan is a SOFR Loan, the Periodic Term SOFR Determination Day for such Interest Period, (y) if the Loan is a Prime Rate Loan, the date that is two (2) Business Days prior to the commencement date of such Interest Period and (z) if the Loan is an Alternate Rate Loan, the date and time determined by Administrative Agent (after consultation with Borrower) in accordance with the definition of “Conforming Changes”.

“Disbursement Instruction Agreement” shall have the meaning set forth in Section 10.35 hereof.

“Discounted Payoff” shall have the meaning set forth in Section 10.26(a) hereof.

“Division” shall mean, as to any Person, such Person dividing and/or otherwise engaging in and/or becoming subject to, in each case, any division pursuant to, or as permitted by, Sec. 18-217 of the Delaware Limited Liability Company Act.

“DY Guaranty Amount” shall have the meaning assigned thereto in Section 5.2.10(d)(i) hereof.

“EEA Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.

“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.

“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.

“EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

“Eligibility Requirements” means, with respect to any Person, that such Person together with its Affiliates (i) is regularly engaged in the business of making, originating or owning commercial mortgage or mezzanine real estate loans or interests in such commercial mortgage and/or mezzanine real estate loans and holds at least $500,000,000 of such commercial real estate loans (and/or interest therein), (ii) is not an Embargoed Person and has never been convicted of, or pled guilty or no contest to, any unlawful activity, including money laundering, terrorism or terrorism activities, (iii) has not been party to any bankruptcy proceedings, voluntary or involuntary, made an assignment for the benefit of creditors or taken advantage of any insolvency act, or any act for the benefit of debtors or the subject of any material governmental or regulatory investigation which resulted in a final, non-appealable conviction for criminal activity involving moral turpitude or a civil proceeding in which such Person has been found liable in a final non-appealable judgment for attempting to hinder, delay or defraud creditors, each within seven (7) years prior to the date of determination and (iv) if such Person is not a bank or an insurance company, has no material then outstanding and unpaid judgments against such Person.

“Eligible Account” shall mean a separate and identifiable account from all other funds held by the holding institution that is either (i) an account or accounts maintained with a federal or state-chartered depository institution or trust company which complies with the definition of Eligible Institution or (ii) a segregated trust account or accounts maintained with a federal or state chartered depository institution or trust company acting in its fiduciary capacity which, in the case of a state chartered depository institution or trust company, is subject to regulations substantially similar to 12 C.F.R. Sec. 9.10(b), having in either case a combined capital and surplus of at least $50,000,000.00 and subject to supervision or examination by federal and state authority, as applicable. An Eligible Account will not be evidenced by a certificate of deposit, passbook or other instrument.

“Eligible Assignee” shall mean (A) during the continuance of an Event of Default, any Person (provided that Borrower’s consent (which may be given or withheld in Borrower’s sole and absolute discretion) shall be required with respect to (X) prior to any Priority Payment Cessation Event, a Competitor or an Embargoed Person or (Y) during the continuance of a Priority Payment Cessation Event, an Embargoed Person)) and (B) so long as no Event of Default has occurred and is continuing, any Person (other than a natural person) that is any of the following, provided that any such Person shall at the time it acquires an interest in the Loan satisfy the Eligibility Requirements: (a) a commercial bank or investment bank organized under the laws of the United States, or any state thereof which regularly invests in or makes commercial real estate loans; (b) a commercial bank or investment bank organized under the laws of any other country that is a member of the Organization for Economic Cooperation and Development (the “OECD”), or a political subdivision of any such country which regularly invests in or makes commercial real estate loans (provided that such bank is acting through a branch or agency located in the country in which it is organized or another country which is also a member of the OECD); (c) a commercial bank organized under the laws of the People’s Republic of China (or Taiwan); (d) a Person that is engaged in the business of commercial real estate banking and that is: (1) an Affiliate of a Lender, or (2) a Person of which a Lender is a subsidiary; (e) an insurance company, mutual fund or other financial institution organized under the laws of the United States, any state thereof, any other country which is a member of the OECD or a political subdivision of any such country which regularly invests in or makes commercial real estate loans; (f) a fund (other than a mutual fund) which regularly invests in or makes commercial real estate loans; (g) any Lender, or (h) such other Person reasonably approved by Borrower. Notwithstanding the foregoing, “Eligible Assignee” shall not include (w) any Lender that is a Defaulting Lender, (x) any Competitor (other than during the continuance of an Event of Default if a Priority Payment Cessation Event has occurred), (y) an Embargoed Person, or (z) Borrower or its Affiliates, except to the extent permitted by, and subject to, Section 10.28. Notwithstanding anything to the contrary contained herein, if any proposed transferee of the Loan is not an Eligible Assignee, Xxxxxxxx’s consent (which may be given or withheld in Borrower’s sole and absolute discretion) to such transferee shall be required.

“Eligible Institution” shall mean either (a) a depository institution or trust company insured by the Federal Deposit Insurance Corporation, the short-term unsecured debt obligations or commercial paper of which are rated at least “A‑1+” by S&P, “P‑1” by Xxxxx’x and “F‑1+” by Fitch in the case of accounts in which funds are held for thirty (30) days or less (or, in the case of Letters of Credit and accounts in which funds are held for more than thirty (30) days, the long-term unsecured debt obligations of which are rated at least “AA-” by Fitch and S&P and “Aa3” by Xxxxx’x), or (b) in its capacity as Cash Management Bank or Lockbox Bank, Bank of America, N.A., KeyBank National Association, JPMorgan Chase Bank, N.A., Xxxxx Fargo Bank, National Association, Capital One, N.A., PNC Bank, N.A. or U.S. Bank, N.A. or such other financial institution reasonably acceptable to Administrative Agent, provided, that, in each case the applicable ratings of such entity are not reduced below the lower of (i) the ratings set forth in subsection (a) hereof and (ii) such entity’s ratings in effect as of the Closing Date.

“Embargoed Person” shall mean any Person, entity or government targeted by trade restrictions under U.S. law, including, but not limited to, The USA PATRIOT Act (including the anti‑terrorism provisions thereof), the International Emergency Economic Powers Act, 50 U.S.C. Sec.Sec. 1701, et seq., The Trading with the Enemy Act, 50 U.S.C. App. 1 et seq., and any Executive Orders or regulations promulgated thereunder including those related to Specially Designated Nationals and Specially Designated Global Terrorists, or targeted by any economic sanctions regime administered or enforced by Canada or the European Union, with the result that the investment in Borrower, any SPE Constituent Entity, Guarantor or Sponsor, as applicable (whether directly or indirectly), is prohibited by law or the Loan is in violation of law.

“Environmental Indemnity” shall mean that certain Environmental Indemnity Agreement, dated as of the Closing Date, executed by Xxxxxxxx in connection with the Loan for the benefit of Administrative Agent, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Equipment” shall have the meaning set forth in the granting clause of the related Mortgage with respect to each Individual Property.

“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated thereunder.

“Erroneous Payment” shall have the meaning set forth in Section 11.19 hereof.

“Erroneous Payment Assignment” shall have the meaning set forth in Section 11.19 hereof.

“Erroneous Payment Deficiency” shall have the meaning set forth in Section 11.19 hereof.

“Escrow Agreement” shall mean that certain Escrow Agreement dated as of June 26, 2024, entered into between Administrative Agent, Borrower, Title Company and the Escrow Agent named therein, as the same may be amended, restated, replaced, supplemented or modified from time to time.

“Escrow Break Date” shall have the meaning set forth in the Escrow Agreement.

“Escrowed Assets” shall mean each of the Individual Properties listed on Exhibit D attached hereto.

“Escrowed Mortgages” shall have the meaning set forth in the Escrow Agreement.

“Event of Default” shall have the meaning set forth in Section 8.1 hereof.

“Excess Cash Flow” shall mean all funds outstanding in the Cash Management Account (in excess of any required minimum balance) after payment or disbursement of all amounts which are required to be paid or disbursed pursuant to Sections 3(a) through (i) of the Cash Management Agreement.

“Excess Cash Flow Deposit Cap” shall have the meaning set forth in Section 7.5.1 hereof.

“Excess Cash Flow Guarantor” shall mean any of (i) Guarantor, (ii) one or more Replacement Sponsor Guarantors or (iii) one or more Replacement Affiliate Guarantors.

“Excess Cash Flow Guaranty” shall mean an Excess Cash Flow Guaranty entered into by an Excess Cash Flow Guarantor for the benefit of Administrative Agent in the form of the Excess Cash Flow Guaranty attached hereto as Exhibit C and entered into in accordance with Section 7.5.2(c) hereof, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Excess Cash Flow Guaranty Assumption” shall have the meaning set forth in Section 5.2.10(d)(i) hereof.

“Excess Cash Flow Reserve Account” shall have the meaning set forth in Section 7.5.1 hereof.

“Excess Cash Flow Reserve Funds” shall have the meaning set forth in Section 7.5.1 hereof.

“Excess Net Proceeds” shall have the meaning set forth in Section 6.4(b)(vii) hereof.

“Exchange Act” shall have the meaning set forth in Section 9.1.1(m) hereof.

“Excluded Entity” shall mean any entity comprising Initial Sponsor or any other Approved Sponsor Entity or any direct or indirect legal or beneficial owner (including, without limitation, any shareholder partner, member and/or non‑member manager) of any entity comprising Initial Sponsor or any other Approved Sponsor Entity.

“Excluded Lease” shall mean (a) any leases for solar panels or solar facilities, storage, rooftop equipment or parking and (b) ordinary course (i) space license agreements for telecommunications equipment and antennas, (ii) agreements for catering, business or similar special events or functions at any of the Properties, (iii) de minimis billboard leases, and (iv) leases for management offices.

“Excluded Taxes” shall mean any of the following Section 2.9 Taxes imposed on or with respect to a recipient: (a) Section 2.9 Taxes that are imposed on a recipient’s overall net income (and franchise Section 2.9 Taxes imposed in lieu thereof or in addition thereto), or by the jurisdiction under the laws of which such recipient is organized or in which the principal office is located or, in the case of any Lender, in which its applicable lending office is located or as a result of a present or former connection between the recipient and the jurisdiction imposing such tax (unless such Section 2.9 Taxes are imposed solely as a result of the recipient having executed, delivered or performed its obligations or received payments under, or enforced, this Agreement or any of the other Loan Documents), (b) Section 2.9 Taxes that are branch profits taxes imposed by the United States or any other jurisdiction described in clause (a) above, (c) in the case of a Lender, any U.S. federal Section 2.9 Taxes resulting from any applicable law in effect on the date Lender becomes a party to this Agreement (or designates a new lending office), except to the extent that such Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office (or assignment), to receive additional amounts from any Loan Party with respect to such Section 2.9 Taxes pursuant to Section 2.9(a), (d) any Section 2.9 Taxes attributable to Xxxxxx’s (or other relevant recipient’s) failure to comply with Section 2.9(e) and (e) any Section 2.9 Taxes imposed pursuant to FATCA.

“Existing Management Agreement” shall mean those certain Property Management Agreements set forth on Schedule 1.1(b) attached hereto, pursuant to which Existing Manager is to provide management, parking and other services (as applicable) with respect to the Properties.

“Existing Manager” shall mean, collectively, each manager that is party to an Existing Management Agreement.

“Exiting Guarantor” shall have the meaning set forth in Section 5.2.10(d)(i) hereof.

“Extended Maturity Date” shall have the meaning set forth in Section 2.8 hereof.

“Extension Option” shall have the meaning set forth in Section 2.8 hereof.

“Extension Strike Price” shall have the meaning set forth in the definition of “Strike Price” hereof.

“Extension Term” shall have the meaning set forth in Section 2.8 hereof.

“Extraordinary Expense” shall have the meaning set forth in Section 5.1.11(f) hereof.

“Face Amount” shall mean the actual principal amount of the Mezzanine Loan (or portion thereof), if any, being retired pursuant to a Discounted Payoff.

“FATCA” shall mean Sections 1471 through 1474 of the Code, as of the Closing Date (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Code.

“Federal Funds Rate” shall mean, for any day, a fluctuating interest rate per annum equal to the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/1000 of 1%) charged to Administrative Agent on such day on such transactions as determined by Administrative Agent.

“Federal Reserve Bank of New York’s Website” shall mean the website of the Federal Reserve Bank of New York at xxxx://xxx.xxxxxxxxxx.xxx, or any successor source.

“Fiscal Year” shall mean each twelve (12) month period commencing on January 1 and ending on December 31 during each year of the term of the Loan.

“Fitch” shall mean Fitch, Inc.

“Fixtures” shall have the meaning set forth in the granting clause of the related Mortgage with respect to each Individual Property.

“Force Majeure” shall mean any event, circumstance or condition beyond the reasonable control of Borrower, including without limitation, strikes, labor disputes, acts of God, the elements, governmental restrictions, regulations or controls, enemy action, civil commotion, fire, casualty, accidents, disease, pandemic, epidemic, quarantine, mechanical breakdowns or shortages of, or inability to obtain, labor, utilities or materials, in each case which prevents, hinders or delays Borrower’s ability to perform its obligations hereunder.

“Foreclosure” shall have the meaning set forth in Section 9.2(a)(vi) hereof.

“Free Excess Cash Flow” shall mean, as of any date of determination during a Cash Sweep Period, all Excess Cash Flow that is (x) in an amount greater than the Excess Cash Flow Deposit Cap or (y) guaranteed pursuant to the Excess Cash Flow Guaranty.

“Fremont Ground Lease” shall mean that certain Ground Lease Agreement, dated as of September 11, 2018, between Fremont Ground Lessor (f/k/a AIMCO Xxxxxxxxxx 3A Lessor, LLC) and Fremont Ground Lessee (f/k/a AIMCO Xxxxxxxxxx 3A Lessee LLC).

“Fremont Ground Lease Modification” shall have the meaning set forth in Section 5.1.31 hereof.

“Fremont Ground Lessee” shall mean AIR Xxxxxxxxxx 3A Lessee LLC, a Delaware limited liability company.

“Fremont Ground Lessor” shall mean AIR Xxxxxxxxxx 3A Lessor LLC, a Delaware limited liability company.

“Fremont Individual Property” shall mean the Individual Property located at 00000 Xxxx 00^xx Xxxxxx, Xxxxxx, XX 00000.

“GAAP” shall mean generally accepted accounting principles in the United States of America as of the date of the applicable financial report.

“Governmental Authority” shall mean any court, board, agency, commission, office or other authority of any nature whatsoever for any governmental unit (foreign, federal, state, county, district, municipal, city or otherwise) whether now or hereafter in existence having jurisdiction over, as applicable, Borrower, Guarantor, any Property (and any operations conducted thereat), Administrative Agent, Lender and/or the Loan.

“Grantor Trust” shall mean a grantor trust as defined in subpart E, part I of subchapter J of the Code.

“Gross Income from Operations” shall mean, for any date of determination, all revenue derived from the ownership and operation of the Properties from whatever source, including, without limitation, (a) total annualized base rent in place as of such date of determination based on executed Leases (net of concessions for multifamily residential Tenants), including (i) executed commercial Leases with in-place Tenants based on the current rent roll, (ii) executed residential Leases (A) with in-place Tenants based on the current rent roll and (B) future lease term commencement dates, provided that, (x) such future lease commencement date is scheduled to occur within twelve (12) months of the date of determination, (y) the applicable Tenant has no ability to terminate the Lease prior to its commencement and (z) rents from any in-place Tenant of the same space has not been included pursuant to the foregoing (ii)(A) for the same portion of the applicable calculation period, and (iii) any contractual rent increases within the twelve (12) calendar months following such date of determination (provided, however, notwithstanding the foregoing, to the extent a unit is preleased and included in this calculation pursuant to the foregoing (ii)(B), the rent in connection therewith to be utilized in connection the calculation of “Gross Income from Operations” shall be the current in-place rent for such unit), but excluding any Tenants in base rent monetary default in excess of ninety (90) days or commercial Tenants in bankruptcy that have not assumed the related Lease(s), (b) tenant reimbursements, percentage and overage rent, and ancillary income (e.g. parking, tenant services, signage, etc.) received from the Properties during the twelve (12) month period immediately preceding such date of determination to the extent such expenses and/or reimbursements are provided for pursuant to the applicable Lease and (c) ancillary income (including, without limitation, parking, tenant services and signage) received during the twelve (12) month period immediately preceding such date of determination (without duplication of any amounts set forth in clauses (a) and (b) above), but excluding (solely for purposes of calculating Net Operating Income) one-time extraordinary income or non-recurring income; provided, that Gross Income from Operations shall be adjusted to include reimbursements for Taxes or Insurance Premiums on account of the Tax and Insurance Adjustment solely to the extent such reimbursements are payable to Borrower by Tenants pursuant to the applicable Leases.

“Guaranteed Excess Cash Flow” shall have the meaning set forth in the Excess Cash Flow Guaranty.

“Guarantor” shall mean, individually or collectively, as the context may require, (a) Initial Guarantor or (b) from and after a substitution in accordance with the terms hereof and of the Guaranty, as applicable, any Replacement Sponsor Guarantor, any Replacement Affiliate Guarantor and/or any Replacement Guarantor.

“Guarantor Bankruptcy Event” shall have the meaning assigned thereto in Section 8.1(a)(ix) hereof.

“Guarantor Default” shall have the meaning assigned thereto in Section 8.1(a)(xvi) hereof.

“Guarantor Misrepresentation” shall have the meaning assigned thereto in Section 8.1(a)(vi) hereof.

“Guaranty” shall mean that certain Guaranty Agreement, dated as of the Closing Date and executed and delivered by Guarantor in connection with the Loan to and for the benefit of Administrative Agent, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Guaranty Assumption” means, with respect to the Guaranty or any Ancillary Guaranty (i)(x) a Replacement Sponsor Guarantor and/or a Replacement Affiliate Guarantor executes a replacement guaranty substantially in the form of the Guaranty or Ancillary Guaranty being replaced or otherwise in a form reasonably satisfactory to Administrative Agent or (y) a Guarantor or Ancillary Guarantor that is not an Exiting Guarantor is, or agrees to become, liable pursuant to the Guaranty or such Ancillary Guaranty, as applicable, for all Guaranteed Obligations (as defined in the Guaranty or applicable Ancillary Guaranty executed by the Exiting Guarantor) of the Exiting Guarantor occurring from and after such Transfer or (ii) Borrower delivers a replacement guaranty substantially in the form of the Guaranty or Ancillary Guaranty being replaced or otherwise in a form reasonably satisfactory to Administrative Agent, from (x) with respect to the Guaranty or any Alterations Guaranty, a Replacement Guarantor that Controls Borrower, or is under common Control with Borrower (or if in connection with a Public Sale, a Qualified Public Company) or (y) with respect to any Excess Cash Flow Guaranty, the Debt Yield Trigger Cure Guaranty, Deductible Guaranty or Rate Cap Reserve Guaranty, a Replacement Sponsor Guarantor and/or Replacement Affiliate Guarantor, in each case, which replacement guaranty shall include all liability for all such acts under the Guaranty or applicable Ancillary Guaranty for which Exiting Guarantor was so released. In connection with any Guaranty Assumption, Borrower shall deliver to Administrative Agent (A) the organizational documents of the applicable Replacement Guarantor, (B) resolutions authorizing such Replacement Guarantor to enter into either the assumption of the Guaranty or Ancillary Guaranty, as applicable, or the replacement guaranty referenced above and (C) an enforceability and due execution opinion covering the enforceability of such assumption of the Guaranty or Ancillary Guaranty, as applicable, or such replacement guaranty in the same form and substance as the enforceability opinion delivered to Administrative Agent on the Closing Date (or in such other form as reasonably approved by Administrative Agent); provided, however, if a Blackstone Fund Entity or any other Approved Sponsor Entity is the Replacement Guarantor, Borrower shall not be required to deliver the organizational documents referenced in clause (A) above.

“Guarantor Release” shall have the meaning assigned thereto in Section 5.2.10(d)(i) hereof.

“Guaranty Release Conditions” shall have the meaning assigned thereto in Section 5.2.10(d)(i) hereof.

“Immaterial Transfer/Release” shall have the meaning set forth in Section 5.2.2(b) hereof.

“Improvements” shall have the meaning set forth in the granting clause of the related Mortgage with respect to each Individual Property.

“Indebtedness” of a Person, at a particular date, means the sum (without duplication) at such date of (a) all indebtedness of such Person (including, without limitation, amounts for borrowed money and indebtedness in the form of mezzanine debt and preferred equity); (b) obligations evidenced by bonds, debentures, notes, or other similar instruments; (c) obligations for the deferred purchase price of property or services (including trade obligations); (d) the face amount of the obligations under letters of credit; (e) obligations under acceptance facilities; (f) all guaranties, endorsements (other than for collection or deposit in the ordinary course of business) and other contingent obligations to purchase, to provide funds for payment, to supply funds, to invest in any Person or entity, or otherwise to assure a creditor against loss; and (g) obligations secured by any Liens, whether or not the obligations have been assumed, provided that “Indebtedness” described in this clause (g) shall not include any Permitted Encumbrances.

“Indemnified Liabilities” shall have the meaning set forth in Section 10.13(b) hereof.

“Indemnified Parties” shall mean (a) Administrative Agent, (b) Lender, (c) each Person who Controls (within the meaning of Section 15 of the Exchange Act) any Person described in any of the foregoing clauses, (d) any Person who is or will have been involved in the origination of the Loan, (e) any Person who is or will have been involved in the servicing of the Loan, (f) any Person in whose name the Liens created by the Mortgages are or will be recorded, (g) any Person who holds or acquires or has held or acquired a full or partial interest in the Loan (including, but not limited to, custodians, trustees and other fiduciaries who hold or have held a full or partial interest in the Loan evidenced for the benefit of third parties), (h) any Person who holds or acquires a participation or other full or partial interest in the Loan, (i) any successors by merger, consolidation or acquisition of all or a substantial portion of Lender’s assets and business and (j) the respective officers, directors, shareholders, partners, employees, agents, representatives, Affiliates, participants, successors and assigns of any Person described in any of the foregoing clauses.

“Independent Director” or “Independent Manager” or “Independent Trustee” means a natural person who has prior experience as an independent director, independent manager, independent trustee or independent member who is provided by CT Corporation, Corporation Service Company, National Registered Agents, Inc., Wilmington Trust Company, Xxxxxxx Management Company, Lord Securities Corporation or, if none of those companies is then providing professional independent directors or independent managers, another nationally-recognized company reasonably approved by Administrative Agent that provides professional independent directors or independent managers and other corporate services in the ordinary course of its business and is not an Affiliate of Borrower or any SPE Constituent Entity, and which natural person is duly appointed as an Independent Director or Independent Manager or Independent Trustee, as applicable, and is not, and has never been, and will not while serving as an Independent Director or Independent Manager or Independent Trustee, as applicable, be, any of the following:

(a) a member, partner, equityholder, beneficial owner, manager, director, trustee, officer or employee of Borrower, any SPE Constituent Entity or any of their respective Affiliates (other than as an Independent Director or Independent Manager or Independent Trustee of (i) Borrower or any SPE Constituent Entity or (ii) any Affiliate of Borrower or any SPE Constituent Entity that does not own a direct or indirect ownership interest in the Borrower or SPE Constituent Entity and that is required by a creditor to be a “single purpose bankruptcy remote entity”, provided that (A) such Independent Director or Independent Manager or Independent Trustee is employed by a company that routinely provides professional independent directors or managers in the ordinary course of its business and (B) the fees that such Independent Director or Independent Manager or Independent Trustee earns from serving as an Independent Director or Independent Manager or Independent Trustee of Borrower, each SPE Constituent Entity and any Affiliate of Borrower or any SPE Constituent Entity in any given calendar year constitute, in the aggregate, less than five percent (5%) of the annual income of such Independent Director or Independent Manager or Independent Trustee for that calendar year);

(b) a creditor, supplier or service provider (including provider of professional services) to Borrower, any SPE Constituent Entity, or any of their respective Affiliates (other than a nationally-recognized company that routinely provides professional independent directors or independent managers or independent trustees and other corporate services to Borrower, any SPE Constituent Entity or any of their respective Affiliates in the ordinary course of its business);

(d) a Person that Controls any Person referenced in any of the foregoing clauses (a), (b) or (c).

For purposes of this definition, a “single purpose bankruptcy remote entity” is an entity whose organizational documents contain restrictions on its activities and impose requirements intended to preserve such entity’s separateness that are substantially similar to the provisions of the definition of “Special Purpose Entity” below.

“Index Rate Conversion” shall have the meaning set forth in Section 2.2.7(g) hereof.

“Individual Borrower” shall have the meaning set forth in the introductory paragraph hereto, together with each such Person’s successors and permitted assigns.

“Individual Management Fee Cap” shall have the meaning set forth in Section 4.1.31 hereof.

“Individual Material Adverse Effect” shall mean in respect of an Individual Property, any event or condition that has a material adverse effect on (a) the use, operation, or value of the Individual Property, (b) the business, profits, operations or financial condition of the applicable Borrower, (c) the enforceability, validity, perfection or priority of the lien of the Mortgage or the other Loan Documents, or (d) the ability of the applicable Individual Borrower to satisfy any of its material obligations under the Loan Documents applicable to such Individual Borrower.

“Individual Property” shall mean each parcel or parcels of real property listed on Schedule 1.1(a), the Improvements thereon and all personal property owned by an Individual Borrower (or leased pursuant to the Fremont Ground Lease or a PILOT Lease) and encumbered by a Mortgage, together with all rights pertaining to such property and Improvements, as more particularly described in the granting clauses of each such Mortgage and referred to therein as the “Property”. For the avoidance of doubt, “Property” and “Individual Property” shall not include any personal property owned by a Person which is not Borrower.

“Initial Guarantor” shall mean AI REIT.

“Initial Maturity Date” shall mean June 26, 2026.

“Initial Sponsor” shall mean initially, individually or collectively as the context requires, (a) BREP X, and (b) upon or following a Permitted Assumption, Transfer or assignment to another Blackstone Fund Entity, the applicable Blackstone Fund Entity and any parallel partnerships or alternative investment vehicles comprising the related Blackstone Fund Entity and any co-investment or managed vehicles Controlled by or under common Control with the foregoing entities.

“Initial Strike Price” shall have the meaning set forth in the definition of “Strike Price” hereof.

“Insolvency Opinion” shall mean that certain non-consolidation opinion letter dated as of the Closing Date delivered by Xxxxxx Xxxxxx LLC in connection with the Loan.

“Insolvency Opinion Affiliate” shall mean any Person that (i) directly or indirectly, Controls Borrower or (ii) directly or indirectly owns more than forty-nine percent (49%) of the beneficial interests in Borrower.

“Insurance Premiums” shall have the meaning set forth in Section 6.1(b) hereof.

“Insurance Proceeds” shall have the meaning set forth in Section 6.4(b) hereof.

“Insurance Reserve Funds” shall have the meaning set forth in Section 7.2.1 hereof.

“Interest Period” shall mean, with respect to each Note (or each Component, if applicable), (a) the period commencing on (and including) the date of funding the Loan (which the parties agree is June 26, 2024) and ending on (and including) July 14, 2024 and (b) thereafter, the period commencing on (and including) the fifteenth (15^th) day of each calendar month during the term of the Loan and ending on (and including) the fourteenth (14^th) day of the following calendar month. Each Interest Period as set forth in clause (b) above shall be a full month and shall not be shortened by reason of any payment of the Loan prior to the expiration of such Interest Period.

“Interest Rate” shall mean the rate at which the Outstanding Loan Amount bears interest from time to time in accordance with Section 2.2 hereof.

“Interest Rate Protection Agreement” shall mean, collectively, one or more interest rate protection agreements (together with the confirmation and schedules relating thereto), between an Acceptable Counterparty and Borrower obtained by one or more Individual Borrowers as and when permitted or required pursuant to Section 2.2.7 hereof. After delivery of a Replacement Interest Rate Protection Agreement to Administrative Agent, the term “Interest Rate Protection Agreement” shall be deemed to mean such Replacement Interest Rate Protection Agreement and such Replacement Interest Rate Protection Agreement shall be subject to all requirements applicable to the Interest Rate Protection Agreement.

“KBRA” shall mean Xxxxx Bond Rating Agency, LLC.

“KYC Searches” shall mean, with respect to any Person, customary and satisfactory “know your customer” compliance screening searches of such Person consisting of a search and evaluation of (x) OFAC sanctions and other government-required sanctions lists, (y) negative news screening of such Person associated with material derogatory information that could reasonably result in anti-money laundering risk to Lender related to terrorist or other financial crimes and (z) such customary statutes and other customary information reasonably required by Lender to confirm that such Person is not an Embargoed Person.

“Lease” shall mean (a) any lease, sublease or subsublease, letting, license, concession or other agreement (whether written or oral and whether now or hereafter in effect) pursuant to which any Tenant is granted a possessory interest in, or right to use or occupy all or any portion of any space in any Individual Property entered into by or on behalf of Borrower but excluding (i) the Excluded Leases, (ii) the Fremont Ground Lease, (iii) any PILOT Lease and (iv) Permitted Equipment Leases, (b) every modification, amendment or other supplemental or side agreement relating to the agreements described in clause (a) above, and (c) every guarantee of the performance and observance of the covenants, conditions and agreements to be performed and observed by the other party thereto with respect to the agreements described in clause (a) above. For the avoidance of doubt, in no event shall the Excluded Leases, the Fremont Ground Lease, any PILOT Lease, or Permitted Equipment Leases constitute a Lease.

“Lease and Tenant Information” shall mean information regarding the Leases and the occupancy of or payment of rent by the Tenants pursuant to such Leases (including, without limitation, any Tenant communication that may impact occupancy or payment of rent (other than an estoppel certificate delivered by such Tenant for the benefit of Lender)).

“Legal Requirements” shall mean, with respect to each Individual Property, all federal, state, county, municipal and other governmental statutes, laws, rules, orders, regulations, ordinances, judgments, decrees and injunctions of Governmental Authorities (including, but not limited to, the Americans With Disabilities Act of 1990, the Fair Housing Amendments Act of 1988, and all federal, state and local laws and ordinances related to handicapped access, and all rules, regulations and orders issued pursuant thereto (“Access Laws”)) affecting such Individual Property or any part thereof, or the construction, use, alteration or operation thereof, or any part thereof, whether now or hereafter enacted and in force, and all permits, licenses and authorizations and regulations relating thereto, at any time in force affecting Borrower, such Individual Property or any part thereof, including, without limitation, any which may (a) require repairs, modifications or Alterations in or to such Individual Property or any part thereof, or (b) in any way limit the use and enjoyment thereof.

“Lender” shall have the meaning set forth in the introductory paragraph hereto.

“Lender Documents” shall mean any agreement among Lender, the Mezzanine Lender and/or any participant or any fractional owner of a beneficial interest in the Loan or the Mezzanine Loan relating to the administration of the Loan, the Mezzanine Loan, the Loan Documents or the Mezzanine Loan Documents, including without limitation any intercreditor agreements, co-lender agreements, trust and servicing agreements, pooling and servicing agreements and participation agreements.

“Lender’s Allocation” shall mean a fraction, expressed as a percentage as of the date of determination, the numerator of which is the Outstanding Loan Amount and the denominator of which is the aggregate of the Outstanding Loan Amount and, if any, the Outstanding Mezzanine Loan Amount.

“Letter of Credit” shall mean an irrevocable, unconditional, transferable, clean sight draft letter of credit having an initial term of not less than one (1) year, in favor of Administrative Agent and entitling Administrative Agent to draw thereon in New York, New York, based solely on a statement that Administrative Agent has the right to draw thereon executed by an officer or authorized signatory of Administrative Agent. A Letter of Credit must be issued by an Eligible Institution.

“Liability Percentage” shall mean, (x) prior to a Several Liability Event, one hundred percent (100%) and (y) during the continuance of a Several Liability Event, the “Liability Percentage” (as defined in the Guaranty or Ancillary Guaranty, as applicable) of the applicable Guarantor or Ancillary Guarantor. In no instance shall the Liability Percentage of all entities comprising a Guarantor or Ancillary Guarantor be permitted to be, in the aggregate, less than (or greater than) one hundred percent (100%).

“Licenses” shall have the meaning set forth in Section 4.1.22 hereof.

“Lien” shall mean, with respect to each Individual Property, any mortgage, deed of trust, deed to secure debt, indemnity deed of trust, lien, pledge, hypothecation, assignment, security interest, or any other encumbrance, charge or transfer of, on or affecting Borrower, the related Individual Property, any portion thereof or any interest therein, including, without limitation, any conditional sale or other title retention agreement, any financing lease having substantially the same economic effect as any of the foregoing, the filing of any financing statement, and mechanic’s, materialmen’s and other similar liens and encumbrances.

“Loan” shall mean the loan made by Xxxxxx to Borrower pursuant to this Agreement and evidenced and secured by the Note and the other Loan Documents.

“Loan Documents” shall mean, collectively, this Agreement, the Note, the Mortgages, the Guaranty, the Environmental Indemnity, the Assignment of Management Agreement, the Closing Date Lockbox Agreement, the Cash Management Agreement, the Contribution Agreement, the Pledge Agreement, the Escrow Agreement, the Post-Closing Obligations Letter, the Assignment of Interest Rate Protection Agreement, the Excess Cash Flow Guaranty, the Alterations Guaranty, any PILOT Bond Pledge Agreement, the Debt Yield Trigger Cure Guaranty, the Deductible Guaranty and the Rate Cap Reserve Guaranty, in each instance, if applicable and all other documents executed and/or delivered in favor of Administrative Agent or Lender in connection with the Loan, as each of the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Loan Party” shall mean Borrower, any SPE Constituent Entity and Guarantor.

“Loan Split Documents” shall have the meaning set forth in Section 9.1.2(b) hereof.

“Loan Splitting” shall have the meaning set forth in Section 9.1.2(a) hereof.

“Lockbox Account” shall have the meaning set forth in Section 2.7.1 hereof.

“Lockbox Agreement” shall mean the Closing Date Lockbox Agreement or any Replacement Lockbox Agreement, as applicable, in each case, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Lockbox Bank” shall mean Xxxxx Fargo Bank, National Association or any Replacement Lockbox Bank.

“Lockbox Consolidation” shall have the meaning set forth in Section 2.7.1(g) hereof.

“Losses” shall mean any actual liabilities, losses, damages, obligations, fees, interest, penalties and actual out-of-pocket costs and expenses (including reasonable attorneys’ fees); provided that Losses shall not include (i) special, consequential, exemplary or punitive damages and/or lost profits and diminution in value claims, except to the extent Administrative Agent or Lender is required in a final judgment to pay the same to a third party (without duplication) and (ii) any of the forgoing to the extent resulting from the gross negligence, illegal acts, fraud or willful misconduct of the Person otherwise entitled to indemnification or recourse for such Losses.

“Low Debt Yield Release Amount” shall have the meaning set forth in Section 2.6.1(a)(v) hereof.

“Management Agreement” shall mean the Existing Management Agreement or, if the context requires, a Replacement Management Agreement pursuant to which a Qualified Manager is managing one or more of the Individual Properties (including, any parking lot, parking garage, parking facility or parking area, as applicable) in accordance with the terms and provisions of this Agreement.

“Management Default Election Notice” shall have the meaning set forth in Section 8.1(a)(xiv) hereof.

“Manager” shall mean Existing Manager or, if the context requires, a Qualified Manager who is managing one or more of the Individual Properties (including, any parking lot, parking garage, parking facility or parking area, as applicable) in accordance with the terms and provisions of this Agreement pursuant to a Replacement Management Agreement.

“Material Action” shall have the meaning set forth in paragraph (xii) of the definition of “Special Purpose Entity” below.

“Maturity Date” shall mean the Initial Maturity Date or, following an exercise by Borrower of one (1) or more of the Extension Options described in Section 2.8 hereof, the Extended Maturity Date, or such other date on which the final payment of principal of the Note becomes due and payable as therein or herein provided, whether at such stated maturity date, by declaration of acceleration, or otherwise.

“Maximum Legal Rate” shall mean the maximum nonusurious interest rate, if any, that at any time or from time to time may be contracted for, taken, reserved, charged or received on the indebtedness evidenced by the Note and as provided for herein or the other Loan Documents, under the laws of such state or states whose laws are held by any court of competent jurisdiction to govern the interest rate provisions of the Loan.

“Mezzanine Borrower” shall mean the borrower of a Mezzanine Loan, if any.

“Mezzanine Borrower DY Deficiency Reserve” shall have the meaning set forth in Section 2.6.1(a)(v) hereof.

“Mezzanine Debt Service” shall mean, with respect to any particular period of time, interest payments then due under the Mezzanine Loan.

“Mezzanine Debt Yield Cure Collateral” shall have the meaning ascribed to such term in the definition of “Debt Yield Trigger Event Cure” hereof.

“Mezzanine Debt Yield Trigger Cure Guaranty” shall have the meaning ascribed to such term in the definition of “Debt Yield Trigger Event Cure” hereof.

“Mezzanine Lender” shall mean the holder of a Mezzanine Loan, if any, together with their respective successors and assigns.

“Mezzanine Loan” shall mean any mezzanine loan permitted or approved by Administrative Agent pursuant to the terms hereof; provided that any loan secured by pledges in any Restricted Pledge Party pursuant to the terms of Section 5.2.10(d) hereof shall not be considered a Mezzanine Loan hereunder.

“Mezzanine Loan Agreement” shall mean the loan agreement evidencing a Mezzanine Loan between Mezzanine Borrower and Mezzanine Lender, as each of the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Mezzanine Loan Default” shall mean, if applicable, an “Event of Default” under any Mezzanine Loan Documents.

“Mezzanine Loan Documents” shall mean the loan documents evidencing a Mezzanine Loan, if any, as each of the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Mezzanine Mandatory Prepayment Amount” shall mean the “Mandatory Prepayment Amount” as such term is defined in the Mezzanine Loan Agreement.

“Mezzanine Release Amount” shall mean, if applicable, the “Release Amount” as defined in the Mezzanine Loan Agreement.

“Minimum Disbursement Amount” shall mean Twenty‑Five Thousand and No/100 Dollars ($25,000.00).

“Monthly Debt Service Payment Amount” shall mean, on each Payment Date, the amount of interest which accrues on each Note (or each Component, if applicable) of the Loan for the related Interest Period.

“Monthly Rate Cap Reserve Amount” shall mean, with respect to any Interest Period, an amount equal to the product of (a) the Strike Price Delta for the initial term of the Loan (or the related Extension Term, if applicable), (b) the Outstanding Loan Amount, and (c) the quotient of (i) the number of days in such Interest Period for which the calculation is being determined and (ii) 360, as the same shall be reasonably calculated by Administrative Agent.

“Monthly Rate Cap Reserve Reduction Amount” shall mean an amount equal to (x) the Rate Cap Reserve Amount Cash Share multiplied by (y) the Rate Cap Reserve Amount divided by (z) the number of Interest Periods for which an Interest Rate Protection Agreement was purchased at an Alternate Strike Price.

“Monthly Strike Price Differential Amount” shall mean, with respect to any Interest Period, an amount equal to the product of (a) the Applicable Index Rate) for the applicable Interest Period less the Applicable Strike Price, (b) the Outstanding Loan Amount and (c) the quotient of (i) the number of days in such Interest Period for which the calculation is being determined and (ii) 360, as the same shall be reasonably calculated by Administrative Agent.

“Moody’s” shall mean Xxxxx’x Investors Service, Inc.

“Mortgage” shall mean, with respect to each Individual Property, that certain Mortgage/Deed of Trust/Deed to Secure Debt, Assignment of Leases and Rents, Fixture Filing and Security Agreement, dated as of the Closing Date, executed and delivered by the applicable Borrower to Administrative Agent (or to the Trustee defined therein for the benefit of Administrative Agent, as applicable) as security for the Loan and encumbering an Individual Property, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Mortgage Mandatory Prepayment Amount” shall have the meaning set forth in Section 2.4.2(a) hereof.

“Net Operating Income” shall mean, for any date of determination, the amount obtained by subtracting (i) Operating Expenses for the previous twelve (12) month period from (ii) Gross Income from Operations. For reference purposes, a sample calculation of Net Operating Income (including a sample calculation of the assumed management fee) is attached as Schedule 1.1(k) to this Agreement.

“Net Proceeds” shall have the meaning set forth in Section 6.4(b) hereof.

“Net Proceeds Deficiency” shall have the meaning set forth in Section 6.4(b)(vi) hereof.

“Net Proceeds Prepayment” shall have the meaning set forth in Section 6.4(e) hereof.

“Net Sales Proceeds” shall mean one hundred percent (100%) of the gross proceeds from the sale of an Individual Property to be received by or on behalf of the applicable Individual Borrower in respect of such sale, less and except: any reasonable and customary brokerage fees and sales commissions payable to third parties, transfer, stamp and/or intangible taxes, reasonable, customary and market closing costs and any other reasonable and customary third party costs and expenses actually incurred by such Borrower in connection with such sale, as evidenced by a settlement statement or customary invoice.

“Net Worth” shall have the meaning set forth in the Guaranty.

“Net Worth Threshold” shall mean $500,000,000.

“New Lockbox Account” shall have the meaning set forth in Section 2.7.1(h) hereof.

“New Note” shall have the meaning set forth in Section 9.1.2(b) hereof.

“New Note Amount” shall have the meaning set forth in Section 9.1.2(b) hereof.

“New TRS Borrower” shall have the meaning set forth in Section 10.29 hereof.

“Non-Conforming Policy” shall have the meaning set forth in Section 6.1(h) hereof.

“Non-Consenting Lender” shall have the meaning set forth in Section 10.30(f) hereof.

“Non-Disturbance Agreement” shall have the meaning set forth in Section 5.1.20 hereof.

“Non-Excluded Taxes” shall mean (a) Section 2.9 Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any Loan Party under any Loan Document, and (b) to the extent not otherwise described in clause (a), Other Taxes.

“Non-Pledged Account” shall have the meaning set forth in Section 2.7.1(c) hereof.

“Non-Recourse Assumption” shall have the meaning set forth in Section 5.2.10(d)(i) hereof.

“Non-U.S. Lender” shall have the meaning set forth in Section 2.9(e)(i) hereof.

“Note” shall mean, individually or collectively, as the context may require, Note A-1, Note A-2, Note A-3, Note A-4, Note A-5, Note A-6, Note A-7, Note A-8 and Note A-9.

“Note A-1” shall mean that certain Promissory Note A-1 of even date herewith in the principal amount of Five Hundred Twenty-Five Million and 00/100 Dollars ($525,000,000.00), made by Borrower in favor of Xxxxx, as the same may be amended, restated, replaced, supplemented, split or otherwise modified from time to time.

“Note A-2” shall mean that certain Promissory Note A-2 of even date herewith in the principal amount of Two Hundred Fifty Million and 00/100 Dollars ($250,000,000.00), made by Borrower in favor of MS, as the same may be amended, restated, replaced, supplemented, split or otherwise modified from time to time.

“Note A-3” shall mean that certain Promissory Note A-3 of even date herewith in the principal amount of One Hundred Fifty Million and 00/100 Dollars ($150,000,000.00), made by Borrower in favor of SG, as the same may be amended, restated, replaced, supplemented, split or otherwise modified from time to time.

“Note A-4” shall mean that certain Promissory Note A-4 of even date herewith in the principal amount of Three Hundred Eighty-Seven Million Five Hundred Thousand and 00/100 Dollars ($387,500,000.00), made by Borrower in favor of BMO, as the same may be amended, restated, replaced, supplemented, split or otherwise modified from time to time.

“Note A-5” shall mean that certain Promissory Note A-5 of even date herewith in the principal amount of Three Hundred Million and 00/100 Dollars ($300,000,000.00), made by Borrower in favor of JPM, as the same may be amended, restated, replaced, supplemented, split or otherwise modified from time to time.

“Note A-6” shall mean that certain Promissory Note A-6 of even date herewith in the principal amount of Two Hundred Fifty Million and 00/100 Dollars ($250,000,000.00), made by Borrower in favor of Barclays, as the same may be amended, restated, replaced, supplemented, split or otherwise modified from time to time.

“Note A-7” shall mean that certain Promissory Note A-7 of even date herewith in the principal amount of Three Hundred Eighty-Seven Million Five Hundred Thousand and 00/100 Dollars ($387,500,000.00),, made by Borrower in favor of GS, as the same may be amended, restated, replaced, supplemented, split or otherwise modified from time to time.

“Note A-8” shall mean that certain Promissory Note A-8 of even date herewith in the principal amount of Two Hundred Fifty Million and 00/100 Dollars ($250,000,000.00), made by Borrower in favor of BofA, as the same may be amended, restated, replaced, supplemented, split or otherwise modified from time to time.

“Note A-9” shall mean that certain Promissory Note A-9 of even date herewith in the principal amount of One Hundred Fifty Million and 00/100 Dollars ($150,000,000.00), made by Borrower in favor of DBNY, as the same may be amended, restated, replaced, supplemented, split or otherwise modified from time to time.

“Notional Amount Reduction” shall have the meaning set forth in Section 2.2.7(b) hereof.

“Officer’s Certificate” shall mean a certificate delivered to Administrative Agent for the benefit of Lender by Borrower which is signed by an authorized officer of Borrower or the general partner or the managing member or sole member of Borrower, as applicable.

“Operating Expenses” shall mean, without duplication, as of any date of determination, all ordinary costs and expenses of Borrower with respect to the operation, management, maintenance, repair and use of the Properties, Taxes and Insurance Premiums for the twelve (12) month period immediately preceding the date of determination; adjusted to reflect an assumed management fee equal to the greater of (x) two percent (2.0%) of Gross Income from Operations and (y) the actual management fee provided pursuant to the Management Agreement (or if there is a sub-management agreement in place, the sub-management agreement); provided, however, at the election of Borrower (which election may be changed at any time upon written notice to Administrative Agent) (the “Management Fee Cap Election”), if the Capped Actual Management Fee Condition has been satisfied with respect to any Property, for purposes of calculating Net Operating Income only with respect to such Property following the Closing Date, the actual management fees for such Property shall equal the lesser of (A) the actual management fee provided pursuant to the Management Agreements with respect to such Property (or if there is a sub-management agreement in place, the sub-management agreement) and (B) the Base Fee; provided, further, however, that such expenses shall not include (i) non-cash items (other than expenses that are due and payable but not yet paid), (ii) interest, principal or any other sums due and owing with respect to the Loan or the Mezzanine Loan, (iii) deposits into reserve accounts required to be maintained pursuant to the Loan Documents or the Mezzanine Loan Documents, (iv) income taxes or other taxes in the nature of income taxes, (v) extraordinary expenses, extraordinary losses or non-recurring expenses, (vi) Capital Expenditures or capital reserves, (vii) leasing commissions (including any in-house leasing commissions incurred by Initial Sponsor or its Affiliates), (viii) intentionally omitted or (ix) without duplication of any amounts set forth in (i) through (viii) hereof, expenses that are subject to reimbursement by any third party or under any insurance policy; provided, further, that the foregoing shall be adjusted as of the applicable date of determination (A) for any known changes in Taxes or Insurance Premiums that will take effect during the succeeding twelve (12) months following the applicable date of determination (the “Tax and Insurance Adjustment”), and (B) to include Capital Expenditures at an assumed rate of Two Hundred Fifty and No/100 Dollars ($250.00) per residential unit at the Properties.

“Organizational Documents” means as to any Person, the certificate of organization or certificate of formation and operating agreement or limited liability company agreement with respect to a limited liability company, the certificate of limited partnership and limited partnership agreement with respect to a limited partnership, or any other organizational or governing documents of such Person.

“Other Blackstone Fund” shall have the meaning set forth in the definition of “Blackstone Fund Entity”.

“Other Charges” shall mean all ground rents, maintenance charges, Condominium association fees (if any), impositions other than Taxes (or other Section 2.9 Taxes), amounts due under any PILOT Lease (excluding any payments which do not require any out-of-pocket expense to be incurred by Borrower, including, without limitation, payments which are made by book entry), and any other charges, including, without limitation, vault charges and license fees for the use of vaults, chutes and similar areas adjoining any Individual Property, now or hereafter levied or assessed or imposed against such Individual Property or any part thereof.

“Other Obligations” shall have the meaning as respectively set forth in the Mortgages.

“Other Taxes” shall have the meaning set forth in Section 2.9(b) hereof.

“Otherwise Rated Insurers” shall have the meaning set forth in Section 6.1(b) hereof.

“Outstanding Loan Amount” shall mean, as of any date of determination, the sum of (i) the original principal amount of the Loan, less (ii) the amount of the Loan which has been prepaid or repaid by Borrower as of such date in accordance with the terms of this Agreement.

“Outstanding Mezzanine Loan Amount” shall mean, as of any date of determination, (i) the amount of any Mezzanine Loan, less (ii) the amount of the Mezzanine Loan which has been prepaid or repaid by the Mezzanine Borrower as of such date in accordance with the terms of the Mezzanine Loan Agreement.

“Overnight Rate” shall mean, for any day, the greater of (a) the Federal Funds Rate and (b) an overnight rate determined by Administrative Agent in accordance with banking industry rules on interbank compensation.

“PACE Debt” means any amounts owed in respect of energy retrofit lending programs, commonly known as “PACE Loans”. For avoidance of doubt, PACE Debt is not Permitted Debt and Liens securing PACE Debt are not Permitted Encumbrances.

“Payment Date” shall mean, with respect to any Note (or any Component, if applicable) the ninth (9^th) day of each calendar month during the term of the Loan, until and including the Maturity Date. The parties hereto acknowledge that the first Payment Date shall be August 9, 2024.

“Payment Recipient” shall have the meaning set forth in Section 11.18 hereof.

“Periodic Term SOFR Determination Day” shall have the meaning set forth in the definition of “Term SOFR.”

“Permitted Adjustment Event” shall mean (i) any mandatory prepayment of the Loan under Section 2.4.2 in connection with a Casualty or Condemnation, (ii) any application of principal during the continuance of an Event of Default or (iii) if a Mezzanine Loan is outstanding, a voluntary prepayment of principal of the Mezzanine Loan (or any components of the Mezzanine Loan) on a reverse sequential basis without a corresponding prepayment of the Loan in accordance with the terms and conditions hereof.

“Permitted Assumption” shall have the meaning set forth in Section 5.2.10(e) hereof.

“Permitted Assumption Party” shall mean (x) one or more Qualified Transferees and/or Person(s) Controlled by a Qualified Transferee, which Qualified Transferee has been approved by (i) Administrative Agent and (ii) Lenders holding in the aggregate not less than eighty percent (80%) of the Outstanding Loan Amount (including, any amounts held by Administrative Agent, as a Lender but excluding from such calculation any amounts held by a Defaulting Lender), such approval, in each instance, not to be unreasonably withheld, conditioned, or delayed and/or (y) any entity comprising Sponsor and/or any other Approved Sponsor Entity.

“Permitted Assumption Party Approval” shall mean an approval pursuant to clause (x) of the definition of Permitted Assumption Party; provided that a Permitted Assumption Party Approval shall be deemed granted if the Deemed Approval Requirements have been satisfied with respect thereto.

“Permitted Debt” shall mean, collectively, (a) the Note and the other obligations, indebtedness and liabilities specifically provided for in any Loan Document and secured by the Mortgages and the other Loan Documents, (b) obligations under Leases and the Fremont Ground Lease existing on the Closing Date and any amendments thereto entered into in accordance with the terms and conditions of this Agreement and obligations under other Leases which are entered into in accordance with the terms and conditions of this Agreement, (c) trade payables, Permitted Equipment Leases or other similar arrangements incurred in the ordinary course of Borrower’s business, not secured by Liens on any one or more Individual Properties (other than Liens being properly contested in accordance with the provisions of this Agreement), provided that such trade payables, Permitted Equipment Leases and other similar arrangements (i) do not, in the aggregate, exceed at any one time five percent (5%) of the original principal balance of the Loan and, if any Mezzanine Loan is then outstanding, the original principal balance of the Mezzanine Loan, (ii) are normal and reasonable under the circumstances, (iii) are payable by or on behalf of Borrower for or in respect of the operation of such Individual Property in the ordinary course of the operation of Borrower’s business or the routine administration of such Borrower’s business, (iv) are paid within sixty (60) days following the later of (A) the date on which such amount is incurred or (B) the date invoiced, and (v) are not evidenced by a note, (d) Taxes and Other Charges not yet delinquent or being contested in good faith in accordance with the terms and conditions hereof, (e) Insurance Premiums not yet delinquent, (f) Capital Expenditures incurred in accordance with the Loan Documents, (g) utility charges (including payments under power purchase contracts) and/or other property charges not yet delinquent or being contested in good faith in accordance with the terms and conditions hereof, provided, such charges and payments do not subject the Individual Property to PACE Debt or otherwise result in an unpermitted monetary Lien against the Individual Property, (h) Permitted Encumbrances, (i) Permitted POP Obligations, (j) obligations under any PILOT Lease and (k) customary and ordinary course indemnification of Manager in connection with the operation of the Properties. Nothing contained herein shall be deemed to require Borrower to pay any trade payable, so long as Borrower is in good faith at its own expense, and by proper legal proceedings, diligently contesting the validity, amount or application thereof, provided that in each case, at the time of the commencement of any such action or proceeding, and during the pendency of such action or proceeding (w) no Event of Default shall exist and be continuing hereunder, (x) no Individual Property nor any part thereof or interest therein will be in imminent danger of being sold, forfeited, or lost, (y) Borrower shall furnish such security as may be required in the proceeding, or as may be reasonably requested by Administrative Agent, to insure the payment of any amounts contested, together with all interest and penalties thereon to the extent that the aggregate amount at issue exceeds $12,000,000 (excluding any amounts required to be paid directly by Tenants) (provided, (A) in no event shall Borrower be required to furnish any such security in connection with any such contest to the extent the amounts at issue are actually paid by Borrower prior to delinquency (including if such payment is made under protest) and Borrower delivers to Administrative Agent receipts for payment or other evidence reasonably satisfactory to Administrative Agent that such amounts are actually paid by Borrower prior to delinquency (including if such payment is made under protest)) and (B) in no event shall the security requested by Administrative Agent be in an amount greater than one hundred percent (100%) of such excess amount that is reasonably expected by Administrative Agent to be payable in the event such contest is unsuccessful (including all reasonable out-of-pocket costs and expenses), and (z) such contest operates to suspend collection or enforcement, as the case may be, of the contested amount (or Borrower pays the same under protest). For the avoidance of doubt, nothing herein shall prohibit any direct or indirect owner of Borrower from incurring indebtedness not secured by the collateral for the Loan.

“Permitted Encumbrances” shall mean, with respect to an Individual Property, collectively, (a) the Liens and security interests created by the Loan Documents, (b) all Liens, encumbrances and other matters disclosed in the applicable Title Insurance Policy relating to such Individual Property or any part thereof (including Liens disclosed in the title commitment for which Administrative Agent has either received affirmative coverage or for which the title insurance company has received adequate protections to remove such items as exceptions in the Title Insurance Policy and such item was so removed), (c) Liens, if any, for Section 2.9 Taxes, Taxes and Other Charges imposed by any Governmental Authority not yet delinquent or that are being contested in accordance with the terms hereof, (d) such other title and survey exceptions as Administrative Agent has approved or may approve in writing in Administrative Agent’s sole discretion, (e) all easements, reciprocal easements, rights-of-way, restrictions and other similar non-monetary encumbrances recorded against and affecting such Individual Property and that do not have, or could not reasonably be expected to have an Individual Material Adverse Effect, (f) rights of Tenants, as Tenants only, and rights of tenants under Excluded Leases, along with such rights of first refusal, rights of first offer and tenant options which are granted to tenants under Leases and Excluded Leases existing as of the date hereof or under Leases entered into following the date hereof in accordance with Section 5.1.20 hereof, (g) any easements, rights of way, restrictions and other similar non-monetary encumbrances recorded against and affecting such Individual Property as a result of any Release Parcel/Rights in accordance with Section 2.6.2, if applicable, (h) mechanics’, materialmens’ or similar Liens in each case only if such Liens are discharged or bonded over within sixty (60) days of their filings or that are being contested in accordance with the terms hereof or do not materially and adversely affect the value or use of such Individual Property or Borrower’s ability to repay the Loan, (i) Liens related to Permitted Equipment Leases that satisfy the conditions set forth in the definition of “Permitted Debt”, (j) all easements, rights-of-way and other non-monetary encumbrances, if any, created by or resulting from or reasonably necessary to complete any Approved Alterations or any Immaterial Transfer/Release, (k) all easements, rights-of-way, restrictions and other similar non-monetary encumbrances created or resulting from any Transfer or grant in accordance with Section 5.2.2(b) hereof, (l) deed restrictions and other agreements permitted under Section 5.2.6 hereof, (m) encumbrances contemplated to be created as described on Schedule 1.1(n) attached hereto, and (n) obligations pursuant to the Fremont Ground Lease and any PILOT Lease.

“Permitted Equipment Lease” shall mean a lease or financing that is (a) entered into on arms-length terms and conditions in the ordinary course of Borrower’s business, (b) related to Personal Property which will be (i) used in connection with the operation and maintenance of the Property in the ordinary course of Borrower’s business and (ii) readily replaceable without material interference or interruption to the operation of the applicable Individual Property and (c) in the case of a financing, secured only by the financed equipment or Personal Property.

“Permitted Equipment Transfer” shall mean removal or other Transfer by Borrower of Equipment, Fixtures and/or Personal Property that is either being replaced or that is no longer necessary in connection with the operation of the applicable Individual Property, provided that such removal or other Transfer will not (i) materially adversely affect the value of such Individual Property, (ii) materially adversely impair the utility of such Individual Property or (iii) result in a reduction or abatement of, or right of offset against, the Rents under any Lease in respect of such Individual Property.

“Permitted Interim Encumbrances” shall mean (a) all Liens, encumbrances, and other matters that are disclosed in the Approved Policies, (b) such other title and survey exceptions as Administrative Agent has approved or may approve in writing in Administrative Agent’s sole discretion, and (c) Immaterial Transfer/Releases.

“Permitted Investments” shall mean any one or more of the following obligations or securities acquired at a purchase price of not greater than par, including those issued by Cash Management Bank or its Affiliates, payable on demand or having a maturity date not later than the Business Day immediately prior to the first Payment Date following the date of acquiring such investment and meeting one of the appropriate standards set forth below:

(a) the following obligations of, or the following obligations directly and unconditionally guaranteed as to principal and interest by, the U.S. government or any agency or instrumentality thereof, when such obligations are backed by the full faith and credit of the United States of America and have maturities not in excess of one year:

(i) U.S. Treasury obligations (all direct or fully guaranteed obligations);

(ii) U.S. Department of Housing and Urban Development public housing agency bonds (previously referred to as local authority bonds);

(iii) Federal Housing Administration debentures;

(iv) Government National Mortgage Association (GNMA) guaranteed mortgage-bank securities or participation certificates;

(v) RefCorp debt obligations; and

(vi) SBA-guaranteed participation certificates and guaranteed pool certificates;

(b) federal funds, unsecured certificates of deposit, time deposits, banker’s acceptances, and repurchase agreements having maturities of not more than 90 days of any commercial bank organized under the laws of the United States of America or any state thereof or the District of Columbia, the short-term debt obligations of which are rated (a) “A-1+” (or the equivalent) by S&P and, if it has a term in excess of three months, the long-term debt obligations of which are rated “AAA” (or the equivalent) by S&P, and that (1) is at least “adequately capitalized” (as defined in the regulations of its primary Federal banking regulator) and (2) has Tier 1 capital (as defined in such regulations) of not less than $1,000,000,000, (b) in one of the following Xxxxx’x rating categories: (1) for maturities less than one month, a long-term rating of “A2” or a short-term rating of “P-1”, (2) for maturities between one and three months, a long-term rating of “A1” and a short-term rating of “P-1”, (3) for maturities between three months to six months, a long-term rating of “Aa3” and a short-term rating of “P-1” and (4) for maturities over six months, a long-term rating of “Aaa” and a short-term rating of “P-1”, and (c) in one of the following Fitch rating categories: (1) for maturities less than three months, a long term rating of “A” and a short term rating of “F-1” and (2) for maturities greater than three months, a long-term rating of “AA-” and a short term rating of “F-1+”;

(d) commercial paper rated (a) “A–1+” (or the equivalent) by S&P and having a maturity of not more than 90 days, (b) in one of the following Xxxxx’x rating categories: (i) for maturities less than one month, a long-term rating of “A2” or a short-term rating of “P-1”, (ii) for maturities between one and three months, a long-term rating of “A1” and a short-term rating of “P-1”, (iii) for maturities between three months to six months, a long-term rating of “Aa3” and a short-term rating of “P-1” and (iv) for maturities over six months, a long-term rating of “Aaa” and a short-term rating of “P-1” and (c) in one of the following Fitch rating categories: (1) for maturities less than three months, a long term rating of “A” and a short term rating of “F-1” and (2) for maturities greater than three months, a long-term rating of “AA-” and a short term rating of “F-1+”.

Notwithstanding the foregoing, “Permitted Investments” (i) shall exclude any security with the S&P’s “r” symbol (or any other Rating Agency’s corresponding symbol) attached to the rating (indicating high volatility or dramatic fluctuations in their expected returns because of market risk), as well as any mortgage-backed securities and any security of the type commonly known as “strips”; (ii) shall be limited to those instruments that have a predetermined fixed dollar of principal due at maturity that cannot vary or change; (iii) shall only include instruments that qualify as “cash flow investments” (within the meaning of Section 860G(a)(6) of the Code); and (iv) shall exclude any investment where the right to receive principal and interest derived from the underlying investment provides a yield to maturity in excess of 120% of the yield to maturity at par of such underlying investment. Interest may either be fixed or variable, and any variable interest must be tied to a single interest rate index plus a single fixed spread (if any), and move proportionately with that index. No investment shall be made which requires a payment above par for an obligation if the obligation may be prepaid at the option of the issuer thereof prior to its maturity. All investments shall mature or be redeemable upon the option of the holder thereof on or prior to the earlier of (x) three months from the date of their purchase and (y) the Business Day preceding the day before the date such amounts are required to be applied hereunder.

“Permitted PILOT Arrangement” shall have the meaning set forth in Section 5.1.23(a).

“Permitted POP Obligations” shall have the meaning set forth in Section 4.1.30(j).

“Permitted Transfer” shall mean any of the following: (a) any transfer, directly as a result of the death of a natural person, of stock, membership interests, partnership interests or other ownership interests previously held by the decedent in question to the Person or Persons lawfully entitled thereto, provided if such decedent Controlled Borrower, then any such Person or Persons succeeding to Control shall have the same expertise and experience in owning the Properties as the decedent, (b) any transfer, directly as a result of the legal incapacity of a natural person, of stock, membership interests, partnership interests or other ownership interests previously held by such natural person to the Person or Persons lawfully entitled thereto, provided if such incapacitated Person Controlled Borrower, then any such Person or Persons succeeding to Control shall have the same expertise and experience in owning the Properties as the incapacitated Person prior to such incapacity, (c) any Transfer of any interest in an Affiliate Manager if such Transfer does not otherwise result in a Transfer of an interest in Borrower that is not permitted hereunder, (d) any Transfer permitted without the consent of Administrative Agent pursuant to the provisions of Section 5.2.2(b), Section 5.2.10 or Section 10.29, (e) any Lease of space in any of the Improvements to Tenants in accordance with (or that is not restricted by) the provisions of Section 5.1.20, (f) any Permitted Equipment Transfer, (g) Permitted Encumbrances, (h) the release of any Property or portion thereof (or an Unencumbered Borrower) in connection with a release in accordance with Section 2.4.2, Section 2.6 or Section 6.4, (i) (I), if applicable, any direct or indirect pledge (or any Transfer occurring upon the foreclosure of, or other remedial action with respect to, the same or delivery of an assignment in lieu of foreclosure in respect of the same) by the Mezzanine Borrower to the Mezzanine Lender of the direct or indirect ownership interests in Borrower, any SPE Constituent Entity, Mezzanine Borrower and/or any SPE Constituent Entity (as defined under the Mezzanine Loan Agreement) and other collateral pursuant to the Mezzanine Loan Agreement and/or (II) if applicable, any exercise of rights and remedies by a Mezzanine Lender under the Mezzanine Loan Documents in accordance with Section 5.2.10, (j) Transfers of direct (but only so long as there is no Mezzanine Loan then outstanding) or indirect interests in or Control of Borrower (including Transfers of direct interests in the Mezzanine Borrower) or any SPE Constituent Entity by and among the entities comprising Initial Sponsor or any Approved Sponsor Entity and/or their respective Affiliates and respective Affiliated subsidiaries from time to time or Transfers of direct or indirect interests in any entity comprising Initial Sponsor or any Approved Sponsor Entity and their respective Affiliates, (k) any Sale or Pledge of an Excluded Entity, (l) any issuance or Transfer of Publicly Traded Shares in a Public Vehicle or of any direct or indirect equity interest of any Person whose only equity interest in Borrower consists of Publicly Traded Shares in a Public Vehicle, (m) an Immaterial Transfer/Release, (n) intentionally omitted, (o) the acquisition by Borrower of fee title to a PILOT Property in accordance with the terms and conditions of the PILOT Lease, (p) any Transfer resulting from any exercise by Lender of its rights and remedies under the Loan Documents, (q) any Transfer or exchange of units or other interests in any Public Vehicle, (r) any transfer as a result of a Foreclosure, (s) any termination or other collapse or similar “winding up” of the Fremont Ground Lease pursuant to a Fremont Ground Lease Modification and (t) any Condemnation.

“Permitted Uses” shall have the meaning set forth in Section 4.1.22 hereof.

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

“Personal Property” shall have the meaning set forth in the applicable granting clause of the related Mortgage with respect to each Individual Property.

“Pfandbrief Pledge” shall have the meaning set forth in Section 9.1.8 hereof.

“PILOT Bond” means, individually and/or collectively, any bonds or similar instruments issued in connection with any Permitted PILOT Arrangement.

“PILOT Documents” shall mean (a) any PILOT Bond, (b) any PILOT Lease, and (c) any PILOT Bond Pledge Agreement.

“PILOT Bond Pledge Agreement” shall have the meaning set forth in Section 5.1.23(a) hereof.

“PILOT Lease” means, a lease entered into in accordance with Section 5.1.23(a) hereof in connection with a Permitted PILOT Arrangement.

“PILOT Leasehold Mortgage” shall have the meaning set forth in Section 5.1.23(a)(iii) hereof.

“PILOT Lessee” shall have the meaning set forth in Section 5.1.23(a).

“PILOT Lessor” means the lessor under the applicable PILOT Lease.

“PILOT Property” shall mean, individually and/or collectively as the context requires, any Individual Property at which a PILOT Lease is put in place in connection with a Permitted PILOT Arrangement.

“Plan Assets” shall have the meaning set forth in Section 4.1.9 hereof.

“Pledge Agreement” shall mean that certain Pledge and Security Agreement dated as of the hereof given by AI REIT, CIP18 Flagler Village LLC and Xxxxxx Xxxxxx Apartments, L.P., collectively as pledgor, to Administrative Agent, as agent and pledgee, as the same may be amended, restated, replaced, supplemented, split or otherwise modified from time to time.

“Pledge Foreclosure” shall have the meaning set forth in Section 5.2.10(d) hereof.

“PLL Policy” or “PLL Policies” shall have the meaning set forth in Section 6.1(a)(x) hereof.

“PLL Policy Limit” shall have the meaning set forth in Section 6.1(a)(x) hereof.

“Policies” shall have the meaning set forth in Section 6.1(b) hereof.

“Policy” shall have the meaning set forth in Section 6.1(b) hereof.

“Portfolio PML Reports” shall have the meaning set forth in Section 6.1(c) hereof.

“Post-Closing Obligations Letter” shall mean that certain Post-Closing Obligations Agreement dated as of the date hereof made by Borrower in favor of Administrative Agent.

“Post-Foreclosure Plan” shall have the meaning set forth in Section 11.4 hereof.

“Pre-Identified Release Parcels” shall mean those certain pre-identified release parcels set forth on Schedule 2.6.2 hereof.

“Pre-Public Sale Cap” shall have the meaning set forth in the definition of “Required REIT Distributions.”

“Preapproved Alterations” shall mean the Alterations more particularly described on Schedule 1.1(d) hereto.

“Prepayment Notice” shall have the meaning set forth in Section 2.4.1(a) hereof.

“Previously-Owned Property” shall mean the individual properties set forth on Schedule 1.1(q).

“Previously-Owned Property Borrower” shall mean the Individual Borrowers set forth on Schedule 1.1(r).

“Prime Index Rate” shall mean, with respect to each Interest Period, the annual rate of interest published in The Wall Street Journal from time to time as the “Prime Rate” for the U.S. on the related Determination Date. If The Wall Street Journal ceases to publish the “Prime Rate,” the Administrative Agent shall select an equivalent publication that publishes such “Prime Rate,” and if such “Prime Rates” are no longer generally published or are limited, regulated or administered by a governmental or quasi-governmental body, then Administrative Agent shall select a comparable interest rate index. Notwithstanding the foregoing, in no event shall the Prime Index Rate be less than zero percent.

“Prime Rate” shall mean, with respect to each Interest Period, the per annum rate of interest equal to the Prime Index Rate plus the Prime Rate Spread for each Note (or each Component, if applicable); provided, however, that such rate shall not be less than the Spread for each Note (or each Component, if applicable).

“Prime Rate Loan” shall mean the Loan at such time as interest thereon accrues at a rate of interest equal to the Prime Rate for each Note (or each Component, if applicable).

“Prime Rate Spread” shall mean, with respect to each Note, the difference (expressed as the number of basis points) between (a) the Term SOFR Reference Rate (or the Unadjusted Alternate Index Rate, as applicable) plus the Spread for such Note on the date Term SOFR Reference Rate (or the Unadjusted Alternate Index Rate, as applicable) was last applicable to the Loan and (b) the Prime Index Rate on the date that Term SOFR Reference Rate (or the Unadjusted Alternate Index Rate, as applicable) was last applicable to the Loan.

“Priority Payment Cessation Event” shall mean (a) the acceleration of the Loan during the continuance of an Event of Default, (b) the initiation of (x) judicial or nonjudicial foreclosure proceedings, (y) proceedings for appointment of a receiver or (z) similar remedies permitted by this Agreement or the other Loan Documents relating to all or a material portion of the applicable Individual Property, and/or (c) the imposition of a stay, an injunction or a similar judicially imposed device that has the effect of preventing Administrative Agent from exercising its remedies under this Agreement or the other Loan Documents.

“Priority Waterfall Payments” shall mean the payments described in Sections 3(a) through (d) of the Cash Management Agreement of Taxes, Other Charges and Insurance Premiums and the fees and expenses of the Cash Management Bank under the Cash Management Agreement.

“Pro Rata Share” shall mean, as to any Lender, the ratio, expressed as a percentage of (a) the sum of the unpaid principal amount of the Loan owing to such Lender as of such date to (b) the Outstanding Loan Amount.

“Properties” shall mean, collectively, each and every Individual Property which is subject to the terms of this Agreement.

“Protective Advance” shall mean all sums expended by Administrative Agent, that are determined by Administrative Agent to be reasonably necessary or appropriate to expend, after Borrower fails to do so when required: (a) to protect the validity, enforceability, perfection or priority of the Liens in any of the Collateral and the instruments evidencing the Debt; (b) to prevent the value of any Collateral from being materially diminished (assuming the lack of such a payment within the necessary time frame could potentially cause such Collateral to lose value); or (c) to protect any of the Collateral from being materially damaged, impaired, mismanaged or taken, including any amounts expended in connection therewith in accordance with Section 11.3.

“Provided Information” shall mean any and all financial and other information (including any updates thereto) provided at any time by, or on behalf of, Borrower, SPE Constituent Entity, Guarantor, Mezzanine Borrower, Sponsor and/or Manager (if the Manager is an Affiliate Manager).

“Public Sale” shall mean (a) the Sale or Pledge in one or a series of transactions, of all or a portion of the direct or indirect legal or beneficial interests in Borrower and Mezzanine Borrower to a Qualified Public Company, or (b) the Sale or Pledge in one or a series of transactions, through which any direct or indirect owner of a legal or beneficial interest in Borrower and, to the extent a Mezzanine Loan is outstanding, Mezzanine Borrower, becomes, or is merged with or into, a Qualified Public Company. For the avoidance of doubt, any provisions of this Agreement relating to a “Public Sale” shall not apply to an Excluded Entity.

“Public Vehicle” shall mean a Person whose securities are approved for listing on (i) the New York Stock Exchange, AMEX, NASDAQ, or another nationally recognized securities exchange or (ii) the Toronto Stock Exchange, the Frankfurt Stock Exchange, the London Stock Exchange, Euronext, the Luxembourg Stock Exchange, the Hong Kong Stock Exchange, the Shanghai Stock Exchange, the Tokyo Stock Exchange or the Korea Exchange (KRX), and shall include a majority owned subsidiary of any such Person or any operating partnership through which such Person conducts all or substantially all of its business.

“Publicly Traded Shares” shall mean securities that are approved for listing on (i) the New York Stock Exchange, AMEX, NASDAQ, or another nationally recognized securities exchange or (ii) the Toronto Stock Exchange, the Frankfurt Stock Exchange, the London Stock Exchange, Euronext, the Luxembourg Stock Exchange, the Hong Kong Stock Exchange, the Shanghai Stock Exchange, the Tokyo Stock Exchange or the Korea Exchange (KRX).

“Purchaser” shall have the meaning set forth in Section 4.3(b) hereof.

“Qualified Manager” shall mean (a) any Existing Manager, Beam, Bell Partners, BH Management, Olympus, PAC, Rangewater, Security Properties, APM, Avanti, Xxxxxx Xxxxxx, Dayrise, GoldOller, Greystar, Holland, MG, Peak, Waterton, Westcorp, ConAm, Xxxxxxx & Wakefield, XX Xxxx, AIR, Livcor, Avenue 5, Brookfield, CityView, Cortland, FPI, Oxford, Lincoln Properties, Pinnacle, Alliance, Xxxx Xxxxxx, Westdale, Bridge, and Davlyn, (b) any Person that is an Affiliate of Sponsor or a Blackstone Fund Entity, (c)(i) a Qualified Transferee following a Permitted Assumption in accordance with the terms and conditions of Section 5.2.10(e) hereof, or an Affiliate thereof or (ii) a Qualified Public Company following a Public Sale in accordance with the terms and conditions of Section 5.2.10(d)(ii) hereof, or an Affiliate thereof, (d) a reputable and experienced real estate management organization possessing experience in managing during the five (5) years immediately preceding such management company’s engagement as a Manager with respect to the Properties at least ten (10) multi-family housing properties with no less than two thousand five hundred (2,500) units in the aggregate at such time, and which is not then the subject of a Bankruptcy Action or (II) a management organization otherwise reasonably acceptable to Administrative Agent, and (e) any Person Controlled by or under common Control with any management company set forth in subclause (a) through (d).

“Qualified Public Company” shall mean a Public Vehicle with a market capitalization equal to or exceeding $500,000,000.00 as of the date of the Public Sale.

“Qualified Transferee” shall mean a Person (or series of Persons under common Control) (a) (I) that is a Qualified Public Company, (II) has an aggregate Net Worth as of the date of the Public Sale or Permitted Assumption, as applicable, equal to, or in excess of, the Net Worth Threshold or (III) has been approved by Administrative Agent, such approval not to be unreasonably withheld, conditioned or delayed, (b) that has not been party to any bankruptcy proceedings, voluntary or involuntary, made an assignment for the benefit of creditors or taken advantage of any insolvency act, or any act for the benefit of debtors or the subject of any material governmental or regulatory investigation which resulted in a final, non-appealable conviction for criminal activity involving moral turpitude or a civil proceeding in which such Person has been found liable in a final non-appealable judgment for attempting to hinder, delay or defraud creditors, each within seven (7) years prior to the date of the proposed Transfer, and (c) is able to remake the applicable representations set forth in Section 4.1.35 hereof and is able to comply with the applicable covenants set forth in Section 5.1.27 hereof.

“Radius” shall have the meaning set forth in Section 6.1(b) hereof.

“Rate Cap Guaranty Assumption” shall have the meaning set forth in Section 5.2.10(d)(i) hereof.

“Rate Cap Reserve Account” shall have the meaning set forth in Section 7.6.

“Rate Cap Reserve Amount” shall mean an amount, determined as of the date that the Rate Cap Reserve Funds are deposited in the Rate Cap Reserve Account in accordance with the terms and conditions of this Agreement, equal to the interest that would accrue on the then Outstanding Loan Amount during the initial term or applicable Extension Term, as applicable, if the interest rate were equal to the Strike Price Delta, based on a 360 day year and the actual number of days elapsed, all as reasonably calculated by Administrative Agent.

“Rate Cap Reserve Amount Cash Share” shall mean a fraction, expressed as a percentage, in which (i) the numerator of which is the amount of cash initially deposited in the Rate Cap Reserve Account and (ii) the denominator is the Rate Cap Reserve Amount.

“Rate Cap Reserve Fund” shall have the meaning set forth in Section 7.6.

“Rate Cap Reserve Guarantor” shall mean any of (i) Guarantor, (ii) one or more Replacement Sponsor Guarantor(s) and/or (iii) one or more Replacement Affiliate Guarantors.

“Rate Cap Reserve Guaranty” shall have the meaning set forth in Section 7.6 hereof.

“Rating Agencies” shall mean each of S&P, Moody’s, Fitch, KBRA, DBRS Morningstar or any other nationally recognized statistical rating organization that has been approved by Administrative Agent.

“REA” or “Reciprocal Easement Agreement” shall mean the reciprocal easement agreements or similar agreements affecting any Individual Property or portion thereof and set forth on Schedule 1.1(j).

“REA Default Election Notice” shall have the meaning set forth in Section 8.1(a)(xv) hereof.

“Recourse Party” shall have the meaning set forth in Section 9.2(a)(i).

“Register” shall have the meaning set forth in Section 10.24 hereof.

“REIT” shall have the meaning set forth in Section 5.2.10(h) hereof.

“REIT Election” shall have the meaning set forth in Section 5.2.10(h) hereof.

“REIT Restructuring” shall have the meaning set forth in Schedule 5.2.10 hereof.

“Related Parties” shall have the meaning set forth in Section 10.32 hereof.

“Release Amount” shall mean, for an Individual Property or a Release Parcel/Rights, the lesser of:

(a) the Debt; or

(b) an amount equal to the Allocated Loan Amount for such Individual Property set forth on Schedule 1.1(a) (as adjusted in accordance with this Agreement, if applicable) multiplied by (1) one hundred and five percent (105%) until such time that the Outstanding Loan Amount has been reduced to $1,855,000,000.00 and (2) thereafter, one hundred and ten percent (110%).

“Release Debt Yield” shall have the meaning set forth in Section 2.6.1(a)(v) hereof.

“Release Default” shall have the meaning set forth in Section 2.6.1(c) hereof.

“Release Parcel/Rights” shall have the meaning set forth in Section 2.6.2 hereof.

“Release Property” shall have the meaning set forth in Section 2.6.1(a) hereof.

“Relevant Governmental Body” means the Federal Reserve Board and/or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board and/or the Federal Reserve Bank of New York or any successor thereto.

“Rents” shall mean, with respect to each Individual Property, all rents (including, without limitation, percentage rents), rent equivalents, moneys payable as damages or in lieu of rent or rent equivalents, any fees, payments or other compensation from any Tenant relating to or in exchange for the termination of such Tenant’s Lease, any Excluded Lease, royalties (including, without limitation, all oil and gas or other mineral royalties and bonuses), income, receivables, receipts, revenues, deposits (including, without limitation, security, utility and other deposits), accounts, cash, issues, profits, charges for services rendered, all other amounts payable as rent under any Lease, any Excluded Lease, or other agreement relating to such Individual Property, including, without limitation, charges for electricity, oil, gas, water, steam, heat, ventilation, air-conditioning and any other energy, telecommunication, telephone, utility or similar items or time use charges, HVAC equipment charges, sprinkler charges, escalation charges, license fees, maintenance fees, charges for Taxes, operating expenses or other reimbursables payable to Borrower (or to Manager for the account of Borrower) under any Lease, any Excluded Lease, and other consideration of whatever form or nature received by or paid to or for the account of or benefit of Borrower or its agents or employees from any and all sources arising from or attributable to the Individual Property, and proceeds, if any, from business interruption or other loss of income or rental insurance. Notwithstanding the foregoing, in no event shall any payment made by Borrower under a PILOT Lease or payments made between Borrowers pursuant to the Fremont Ground Lease be considered Rent.

“Replacements” shall have the meaning set forth in Section 7.4.1 hereof.

“Replacement Affiliate Guarantor” shall mean individually or collectively as the context may require, one or more Affiliate(s) of any entity comprising a Blackstone Fund Entity (other than a Replacement Sponsor Guarantor).

“Replacement Cash Management Agreement” shall mean any cash management agreement entered into by and among Borrower, Lender and a Replacement Cash Management Bank, provided that such cash management agreement is in form and substance substantially similar to the Closing Date Cash Management Agreement or is otherwise in form and substance reasonably acceptable to Administrative Agent and Borrower.

“Replacement Cash Management Bank” shall mean any successor to Cash Management Bank that is an Eligible Institution and either (a) assumes the obligations of the Cash Management Bank being replaced under the then-existing Cash Management Agreement or (b) executes and delivers a Replacement Cash Management Agreement, in each case, acting in such Person’s capacity as Cash Management Bank under the Replacement Cash Management Agreement.

“Replacement Guarantor” shall mean one or more of any of (1) a Replacement Sponsor Guarantor, (2) Replacement Affiliate Guarantor, (3) a substitute guarantor which as of the date of determination (x) has (i) a Net Worth equal to, or in excess of, the Net Worth Threshold multiplied by the Liability Percentage of such Person or (ii) a market capitalization equal to or exceeding the Net Worth Threshold multiplied by the Liability Percentage of such Person and (y) satisfies the requirements of a Qualified Transferee other than clause (a) of the definition thereof or (4) one or more substitute guarantors reasonably acceptable to Administrative Agent, as applicable. In the event that a Several Liability Event has occurred and is continuing, the liability of such Replacement Guarantor shall be several and not joint.

“Replacement Interest Rate Protection Agreement” shall mean, collectively, one or more interest rate protection agreements from an Acceptable Counterparty with a strike price no greater than the Strike Price (or, if the Alternate Strike Price Condition has been satisfied, the Alternate Strike Price) and on other terms substantially similar to the Interest Rate Protection Agreement (or as otherwise reasonably acceptable to Administrative Agent) except that the same shall be effective as of the date required in Section 2.2.7(c) or (x) if such interest rate protection agreement is delivered in connection with an extension of the Maturity Date pursuant to Section 2.8 shall meet the requirements set forth in Section 2.8(c) and (y) if such interest rate protection agreement is delivered in connection with an Index Rate Conversion, shall meet the requirements set forth in Section 2.2.7(h).

“Replacement Lockbox Agreement” shall mean any lockbox agreement entered into by and among Borrower, Manager, Administrative Agent and a Replacement Lockbox Bank, provided that such lockbox agreement is in form and substance substantially similar to the Closing Date Lockbox Agreement delivered on the Closing Date, as applicable, or is otherwise in form and substance reasonably acceptable to Administrative Agent.

“Replacement Lockbox Bank” shall mean any successor to the Lockbox Bank that is an Eligible Institution which maintains and holds the Lockbox Account and either (a) assumes the obligations of the Lockbox Bank being replaced under the then-existing Lockbox Agreement or (b) executes and delivers a Replacement Lockbox Agreement, in each case, acting in such Person’s capacity as Lockbox Bank under the Replacement Lockbox Agreement.

“Replacement Management Agreement” shall mean, collectively, (a) any of (i) a management agreement with a Qualified Manager substantially in the same form and substance as the Management Agreement, (ii) a management agreement with a Qualified Manager, entered into on an arm’s length basis and on commercially reasonable terms or (iii) a management agreement with a Qualified Manager, which management agreement shall be reasonably acceptable to Administrative Agent in form and substance, and (b) an assignment of management agreement and subordination of management fees substantially in the form delivered to Administrative Agent in connection with the closing of the Loan (or of such other form and substance reasonably acceptable to Administrative Agent) (a “Replacement Management Subordination”), in each case, executed and delivered to Administrative Agent by Xxxxxxxx and such Qualified Manager at Borrower’s expense.

“Replacement Reserve Account” shall have the meaning set forth in Section 7.4.1 hereof.

“Replacement Reserve Cap” shall mean an amount equal to twelve (12) multiplied by the Replacement Reserve Monthly Deposit.

“Replacement Reserve Funds” shall have the meaning set forth in Section 7.4.1 hereof.

“Replacement Reserve Monthly Deposit” shall mean, for each date of determination, one twelfth (1/12) of the amount equal to the product of (a) the number of residential units at the Properties subject to the Lien of the Mortgage as of such date of determination and (b) $250.

“Replacement Sponsor Guarantor” shall mean, individually or collectively as the context may require, one or more of the entities comprising a Blackstone Fund Entity, which, for the avoidance of doubt, shall not be required to satisfy any minimum Net Worth or liquidity requirement. In the event that a Several Liability Event has occurred and is continuing, the liability of such Replacement Sponsor Guarantor shall be several and not joint.

“Reporting Entity” shall have the meaning set forth in Section 5.1.11(c) hereof.

“Representative Borrower” shall have the meaning set forth in Section 10.6(b) hereof.

“Repurchase” shall have the meaning set forth in Section 9.1.2(d) hereof.

“Required Ownership Interest” shall mean (i) for so long as one or more Approved Sponsor Entities individually or collectively Controls Borrower and Mezzanine Borrower (including, without limitation, through a Qualified Public Company), not less than five percent (5%) of the ultimate direct or indirect interests in Borrower and any Mezzanine Borrower, or (ii) in the event that an Approved Sponsor Entity does not individually or collectively Control Borrower and any Mezzanine Borrower, not less than twenty percent (20%) of the ultimate direct or indirect interests in Borrower and the Mezzanine Borrower.

“Required PLL Period” shall have the meaning set forth in Section 6.1(a)(x) hereof.

“Required REIT Distributions” shall mean an amount equal to (a) the minimum amount required to be distributed by a Borrower in cash (as opposed to equity) such that distributions received by the Person that is a REIT following a REIT Restructuring and/or each direct and/or indirect owner of the Borrower that is a REIT, with respect to any taxable year, equals the amount of the dividend such REIT must distribute in cash (as opposed to equity) to qualify or maintain its status as a REIT and to avoid any U.S. federal or state income Taxes imposed under Sections 857(b)(1) and 857(b)(3) of the Code (or similar provisions of state or local law) and any excise taxes imposed under Section 4981 of the Code or (b) the necessary amount to redeem any preferred shareholders of any Person described in clause (a); provided, however, the amount of Required REIT Distributions made in any year shall not exceed the greater of (x) $250,000 per annum and (y) when aggregated with all prior distributions made pursuant to this definition of “Required REIT Distributions”, ten percent (10%) of the aggregate of all deposits made into the Excess Cash Flow Reserve Account through any date of determination (the “Pre-Public Sale Cap”) and (2) after a Public Sale to a Qualified Public Company, the amount of Required REIT Distributions made in any year shall not exceed the greater of (x) the Pre-Public Sale Cap and (y) the amount of Required REIT Distributions that would be permitted to be made pursuant to clause (a) of this definition assuming Borrower itself were a REIT, that such REIT’s assets were limited to the assets of Borrower, and that such REIT’s income was limited to Borrower’s net taxable income or the net taxable income of Borrower’s owner for U.S. federal income tax (or state or local income tax, as applicable) purposes that is attributable to its interest in Borrower.

“Required Repairs” shall have the meaning set forth in Section 5.1.30 hereof.

“Required Strike Price” shall mean (a) for the period from the Closing Date through and including the Initial Maturity Date, the Initial Strike Price and (b) for any Extension Term, the Extension Strike Price.

“Required Title Policy” or “Required Title Policies” shall have the meaning set forth in the Escrow Agreement, provided that, as it relates to Required Title Policies for the Escrowed Mortgages, such Required Title Policy shall not contain any additional exceptions of record that did not exist in the form of the pro forma policy approved by Administrative Agent as of the Closing Date other than Permitted Interim Encumbrances or as otherwise approved by Administrative Agent in its sole discretion.

“Reserve Accounts” shall mean, collectively, the Tax and Insurance Reserve Account, the Replacement Reserve Account, the Excess Cash Flow Reserve Account, the Rate Cap Reserve Account, and any other escrow account established pursuant to the Loan Documents.

“Reserve Funds” shall mean, collectively, the Tax Reserve Funds, the Insurance Reserve Funds, the Replacement Reserve Funds, the Excess Cash Flow Reserve Funds, the Rate Cap Reserve Funds, and any funds deposited into any other Reserve Account.

“Reserve Release Threshold” shall mean Ten Million and No/100 Dollars ($10,000,000.00).

“Reserved Excess Cash Flow” shall have the meaning set forth in Section 7.5.1 hereof.

“Resolution Authority” shall mean an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.

“Restoration” shall mean the repair and restoration of an Individual Property after a Casualty or Condemnation as nearly as possible to the condition the Individual Property was in immediately prior to such Casualty or Condemnation, with such Alterations as may be reasonably approved by Administrative Agent.

“Restricted Party” shall mean collectively, (a) Borrower, any Mezzanine Borrower and each SPE Constituent Entity and (b) any shareholder, partner, member, non-member manager, any direct or indirect legal or beneficial owner of, Borrower, any Mezzanine Borrower any SPE Constituent Entity, or any non-member manager; provided that an Excluded Entity (and any Person owning a direct or indirect interest in any Excluded Entity) shall not be a Restricted Party and with respect to clause (b), excluding any shareholders or owners of stock or equity interest (including depositary shares) that are publicly traded on any nationally or internationally recognized stock exchange or any accommodation shareholders of preferred shares (including depositary shares) in any REITs in the Borrowers’ ownership structure for REIT compliance purposes, in each case, that are not Affiliates of Borrower or any Mezzanine Borrower. For the avoidance of doubt, notwithstanding anything to the contrary contained in this Agreement, no notice to, or consent of Administrative Agent or Lender shall be required in connection with any Sale or Pledge of direct or indirect interests in any Excluded Entity.

“Restricted Pledge Party” shall mean, collectively, Borrower, any Mezzanine Borrower any SPE Constituent Entity or any other direct or indirect equity holder in Borrower up to, but not including, the first direct or indirect equity holder of Borrower that has substantial assets other than its indirect interest in the Properties, provided, that no Excluded Entity (or any Person owning a direct or indirect interest in any Excluded Entity) shall be a Restricted Pledge Party.

“S&P” shall mean S&P Global Ratings, acting through Standard & Poor’s Financial Services LLC.

“Sale or Pledge” shall mean a voluntary or involuntary sale, conveyance, assignment, transfer, encumbrance, pledge, grant of option to purchase or other transfer or disposal of a legal or beneficial interest, whether direct or indirect.

“Section 2.9 Certificate” shall have the meaning set forth in Section 2.9(e)(i)(C) hereof.

“Section 2.9 Taxes” shall have the meaning set forth in Section 2.9(a) hereof.

“Secured Party” or “Secured Parties” shall mean, individually and collectively, (a) Administrative Agent, (b) each Lender, (c) the beneficiaries of each indemnification obligation undertaken by any Loan Party under any Loan Document and (d) the permitted successors and assigns of each of the foregoing; all of the foregoing, respectively, as applicable at any time and as the context may suggest, permit, or require.

“Several Liability Event” shall mean that (x) Replacement Sponsor Guarantors comprising more than one Blackstone Fund Entity that are part of separate Guarantor Groups (as defined in the Guaranty) become the Guarantor or any Ancillary Guarantor or (y) Replacement Affiliate Guarantors owned by more than one Blackstone Fund Entity that are part of separate Guarantor Groups (as defined in the Guaranty) become the Guarantor or any Ancillary Guarantor.

“Severed Loan Documents” shall have the meaning set forth in Section 8.2(c) hereof.

“SF Condition” shall have the meaning set forth in Section 5.1.11(b) hereof.

“Single Borrower Documents” shall have the meaning set forth in Section 2.6.1(f) hereof.

“SOFR” shall mean a rate equal to the secured overnight financing rate as administered by the SOFR Administrator.

“SOFR Administrator” shall mean the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).

“SOFR Loan” shall mean the Loan at such time as interest thereon accrues at a rate of interest equal to the SOFR Rate.

“SOFR Rate” shall mean the sum of (i) Term SOFR applicable to such Interest Period and (ii) the Spread for each Note (or each Component, if applicable).

“SPE Constituent Entity” shall mean the Special Purpose Entity that is the general partner of Borrower or of another SPE Constituent Entity, if such Borrower or SPE Constituent Entity is a limited partnership, or the managing member of Borrower, if Borrower is a limited liability company not organized under the laws of the State of Delaware.

“Special Purpose Entity” shall mean a limited partnership or limited liability company that, at all times on and after the Closing Date, has complied with and shall at all times comply with the following requirements:

(i) is and shall be organized solely for the purpose of (A) in the case of Xxxxxxxx, acquiring, developing, redeveloping, owning, holding, selling, leasing, ground leasing, transferring, exchanging, managing, renovating, improving, financing, refinancing and operating the Properties or its Individual Property (or any portion thereof), entering into and performing its obligations under the Fremont Ground Lease (in the case of the Fremont Ground Lessee and the Fremont Ground Lessor), entering into and performing its obligations under a PILOT Lease (in the case of a PILOT Xxxxxx), entering into and performing its obligations under the Loan Documents with Administrative Agent and Lender, refinancing the Properties in connection with a permitted repayment of the Loan and transacting any lawful business that is incident, necessary and appropriate to accomplish the foregoing and (B) in the case of an SPE Constituent Entity, acting as a general partner of either (1) the limited partnership that owns any one or more Individual Properties or (2) another SPE Constituent Entity, or a member of either (1) the limited liability company that owns any one or more Individual Properties or (2) another SPE Constituent Entity and transacting lawful business that is incident, necessary and appropriate to accomplish the foregoing;

(ii) shall not engage in any business unrelated to the activities set forth in clause (i) of this definition;

(iii) shall not own any real property other than, in the case of Borrower, any one or more Individual Properties;

(iv) does not have and shall not have any assets other than (A) in the case of Borrower, its interest in one or more Individual Properties and personal property necessary or incidental to its interest in and operation of such Individual Property or Individual Properties and (B) in the case of an SPE Constituent Entity, its direct or indirect partnership interest in the limited partnership that owns any one or more Individual Properties, or its direct or indirect member interest in the limited liability company that owns any one or more Individual Properties and, in each case, personal property necessary or incidental to its ownership of such interests;

(v) shall not engage in, seek, consent to or permit (A) to the fullest extent permitted by law, any dissolution, winding up, liquidation, consolidation, Division or merger, (B) any sale or other transfer of all or substantially all of its assets or any sale of assets outside the ordinary course of its business other than in connection with a sale of any Individual Property in accordance with the terms of this Agreement, except as permitted by the Loan Documents, or (C) in the case of an SPE Constituent Entity, any transfer of its partnership interest or member interest in Borrower or another SPE Constituent Entity, except as permitted by the Loan Documents;

(vi) shall not cause, consent to or permit any amendment of its articles of organization, certificate of formation, certificate of limited partnership or other formation document or its limited partnership agreement or operating agreement or limited liability company agreement (as applicable) with respect to the matters set forth in this definition or matters as to which such formation document expressly requires prior written consent of Administrative Agent, in each case without the prior written consent of Administrative Agent;

(vii) if such entity is a limited partnership, shall be either a Delaware entity or an entity formed in the United States outside of the State of Delaware, and has and shall have, in each instance, at least one general partner and has and shall have, in each instance, as its only general partners, SPE Constituent Entities each of which (A) is a single-member Delaware limited liability company, (B) has two (2) Independent Directors or Independent Managers, and (C) holds a direct interest as general partner in the limited partnership of not less than one-tenth of one percent (0.1%);

(viii) intentionally omitted;

(ix) intentionally omitted;

(x) intentionally omitted;

(xi) if such entity is a limited liability company, (A) is and shall be a Delaware limited liability company (or is and shall be a limited liability company formed in the United States outside of the State of Delaware with a managing member that is an SPE Constituent Entity), (B) has and shall have (or, in the case of a limited liability company formed in the United States outside of the State of Delaware, has a managing member that is a SPE Constituent Entity that has and shall have) at least two (2) Independent Directors or Independent Managers, (C) shall not take any Material Action and shall not cause or permit the members or managers of such limited liability company to take any Material Action, either with respect to itself or, if the limited liability company is an SPE Constituent Entity, with respect to itself or Borrower or another SPE Constituent Entity, as applicable, in each case unless two (2) Independent Directors or Independent Managers then serving as managers of the limited liability company shall have given their prior written consent to such action, and (D) has and shall have two (2) natural persons who are not members of the limited liability company, that have signed its limited liability company agreement and that, under the terms of such limited liability company agreement become a member of the limited liability company immediately prior to the withdrawal or dissolution of the last remaining member of the limited liability company;

(xii) shall not (and, if such entity is (a) a limited liability company, has and shall have a limited liability agreement or an operating agreement, as applicable or (b) a limited partnership, has a limited partnership agreement that, in each case, provide that such entity shall not) (I) to the fullest extent permitted by law, dissolve, merge, be subject to a Division, liquidate, consolidate; (II) sell all or substantially all of its assets; (III) except for amendments entered into prior to the date hereof, amend its organizational documents with respect to the matters set forth in this definition without the prior written consent of Administrative Agent; or (IV) without the affirmative vote of two (2) Independent Directors or Independent Managers of itself or the consent of an SPE Constituent Entity that is a direct or indirect member or general partner in it: (A) file or consent to the filing of any bankruptcy, insolvency or reorganization case or proceeding, institute any proceedings under any applicable insolvency law or otherwise seek relief under any laws relating to the relief from debts or the protection of debtors generally, file a voluntary or any other bankruptcy or insolvency petition or otherwise institute insolvency proceedings; (B) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for the entity or a substantial portion of its property; (C) make an assignment for the benefit of the creditors of the entity; or (D) take any action in furtherance of any of the foregoing (actions described in clauses (A) through (D), collectively, the “Material Actions”);

(xiii) intends to remain solvent and pay its debts and liabilities (including a fairly-allocated portion of any personnel and overhead expenses that it shares with any Affiliate) from its assets as the same shall become due, and intends to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations (in each case, to the extent there exists sufficient cash flow from the operations of the Property to do so; provided, however, that the foregoing shall not require any shareholder, owner, partner or member of such entity, as applicable, to make additional capital contributions to such entity);

(xiv) shall not fail to correct any known misunderstanding regarding the separate identity of such entity;

(xv) except (i) with respect to prior financings that have been repaid or otherwise discharged or that will be repaid or discharged as of the closing of the Loan and (ii) as contemplated by the Loan Documents with respect to any other Borrower or any SPE Constituent Entity, shall maintain books of account, books and records separate from those of any other Person and, to the extent that it is required to file tax returns under applicable law, shall file its own tax returns, except to the extent that it is required by law to file consolidated tax returns or is a disregarded entity for tax purposes;

(xvi) intentionally omitted;

(xvii) except (i) with respect to prior financings that have been repaid or otherwise discharged or that will be repaid or discharged as of the closing of the Loan, (ii) as contemplated by the Loan Documents with respect to each Borrower or each SPE Constituent Entity, and (iii) as contemplated by the Assignment of Interest Rate Protection Agreement, shall not commingle its funds or assets with those of any other Person and shall not participate in any cash management system with any other Person;

(xviii) shall hold its assets in its own name;

(xix) shall hold itself out, identify itself and conduct its business as a separate and distinct entity under its own name or in a name franchised or licensed to it by an entity other than its Affiliate, except for business conducted on behalf of itself by another Person under a business management services agreement that is on commercially-reasonable terms, so long as the manager, or equivalent thereof, under such business management services agreement holds itself out as its agent;

(xx) except with respect to prior financings that have been repaid or otherwise discharged or that will be repaid or discharged as of the closing of the Loan, (A) shall maintain its financial statements, accounting records and other entity documents separate from those of any other Person; (B) shall show, in its financial statements, its asset and liabilities separate and apart from those of any other Person; and (C) shall not permit its assets to be listed as assets on the financial statement of any of its Affiliates except as required by Approved Accounting Principles; provided, however, that, any such consolidated financial statement contains a note indicating that the Special Purpose Entity’s separate assets and credit are not available to pay the debts of such Affiliate and that the Special Purpose Entity’s liabilities do not constitute obligations of the consolidated entity except as provided herein with respect to each other Borrower or any SPE Constituent Entity;

(xxi) except (i) with respect to prior financings that have been repaid or otherwise discharged or that will be repaid or discharged as of the closing of the Loan and (ii) with respect to each other Borrower or any SPE Constituent Entity as contemplated by the Loan Documents, shall pay its own liabilities and expenses, including the salaries of its own employees, if any, out of its own funds and assets, provided there is sufficient cash flow to do so, and shall maintain a sufficient number of employees in light of its contemplated business operations provided there exists sufficient cash flow from the operations of the Property to do so;

(xxii) shall observe all partnership or limited liability company formalities, as applicable, that are necessary to maintain its separate existence;

(xxiii) (I) in the case of Borrower, shall have no Indebtedness other than (A) the Loan, (B) Permitted Debt, (C) as may be required pursuant to the Fremont Ground Lease, (D) such other liabilities that are permitted pursuant to this Agreement or as otherwise imposed by law and (E) with respect to prior financings that have been repaid or otherwise discharged or that will be repaid or discharged as of the closing of the Loan, provided, however this covenant shall not require any shareholder, owner, partner or member of Borrower to make additional capital contributions to Borrower and (II) in the case of an SPE Constituent Entity shall have no Indebtedness other than (A) liabilities of such SPE Constituent Entity as a general partner of a limited partnership, in its capacity as such and (B) liabilities incurred in the ordinary course of business relating to the ownership and operation of the Special Purpose Entity in which it holds an interest in and routine administration of the Special Purpose Entity in which it holds an interest in, provided that (x) the outstanding liabilities at any time shall not exceed $25,000.00 (provided, however, this restriction shall not apply to liabilities incurred by such SPE Constituent Entity as a general partner of a limited partnership, in its capacity as such) and (y) such liabilities are normal and reasonable under the circumstances; and (C) with respect to prior financings that have been repaid or otherwise discharged or that will be repaid or discharged as of the closing of the Loan; provided, however, that this covenant shall not require any shareholder, owner partner or member of an SPE Constituent Entity to make additional capital contributions to any such entity;

(xxiv) shall not assume or guarantee or become obligated for the debts of any other Person, and shall not hold out itself or its credit or assets as being available to satisfy the obligations of any other Person (or any division or part of any other Person), in each case, except (i) as contemplated by the Loan Documents with respect to each other Borrower, (ii) in the case of an SPE Constituent Entity that is a general partner of a Borrower, in its capacity as such, (iii) as otherwise imposed by law and (iv) other than with respect to prior financings that have been repaid or otherwise discharged as of the closing of the Loan;

(xxv) shall not acquire obligations or securities of its partners, members or shareholders or any other Affiliate except with respect to each SPE Constituent Entity, such SPE Constituent Entity’s general partner interest or member interest and, in the case of an SPE Constituent Entity that is a general partner, obligations with respect to the Borrower in which it owns an interest;

(xxvi) shall allocate fairly and reasonably any overhead expenses that are shared with any of its Affiliates or any guarantor of any of their respective obligations, or any Affiliate of any of the foregoing, including, but not limited to, paying for shared office space and for services performed by any employee of an Affiliate;

(xxvii) shall maintain and use separate stationery, invoices and checks bearing its name and not bearing the name of any other entity unless such entity is clearly designated as being the Special Purpose Entity’s agent;

(xxviii) except (i) as contemplated by the Loan Documents with respect to each other Borrower and (ii) other than with respect to prior financings that have been repaid or otherwise discharged or that will be repaid or discharged as of the closing of the Loan, shall not pledge its assets to secure the obligations of any other Person;

(xxix) intentionally omitted;

(xxx) shall maintain its assets in such a manner that it shall not be costly or difficult to segregate, ascertain or identify its individual assets from those of any other Person (or division or part of any other Person);

(xxxi) shall not make loans to any Person and shall not hold evidence of indebtedness issued by any other Person (other than (A) cash and (B) investment-grade securities issued by an entity that is not an Affiliate of or subject to common ownership with such entity) except as is contemplated in the Loan Documents;

(xxxii) shall not identify its partners, members or shareholders, or any Affiliate of any of them, as a division or part of it;

(xxxiii) except, (i) with respect to each Individual Borrower and each SPE Constituent Entity, as contemplated under the Loan Documents and (ii) for capital contributions and distributions permitted under the terms of its organizational documents, shall not enter into or be a party to, any transaction with any of its partners, members, shareholders or Affiliates except in the ordinary course of its business and in each case on terms which are intrinsically fair, commercially reasonable and are comparable to those of an arm’s-length transaction with an unrelated third party;

(xxxiv) shall not have any obligation to, and shall not indemnify its partners, officers, directors or members, as the case may be, in each case unless such an obligation or indemnification is fully subordinated to the Debt and shall not constitute a claim against it in the event that its cash flow is insufficient to pay the Debt;

(xxxv) intentionally omitted;

(xxxvi) shall not have any of its obligations guaranteed by any Affiliate except (i) with respect to prior financings that have been repaid or otherwise discharged or that will be repaid or discharged as of the closing of the Loan, (ii) as provided by the Loan Documents with respect to each other Borrower or any SPE Constituent Entity, with respect to the Lockbox Agreement, and with respect to the Guaranty and each Ancillary Guaranty, and (iii) certain guarantees required pursuant to the terms of any Leases with respect to the landlord’s obligations for tenant improvements under such Leases in the ordinary course of business and which are provided to, or are for the benefit of, the Tenant under the applicable Lease (the “TI Guarantees”); provided, that in the event that Borrower elects to deliver a TI Guaranty, if the Additional Insolvency Opinion Condition is satisfied, then Borrower shall deliver an Additional Insolvency Opinion acceptable to Administrative Agent which takes into account such TI Guaranty;

(xxxvii) shall not form, acquire or hold any subsidiary, other than in connection with any Approved Drop Down, an Approved Borrower Sub or as expressly permitted in this Agreement, except, in the case of an SPE Constituent Entity, the Borrower or another SPE Constituent Entity in which it owns an interest;

(xxxviii) shall comply with all of the terms and provisions contained in its organizational documents;

(xxxix) except with respect to prior financings that have been repaid or otherwise discharged or that will be repaid or discharged as of the closing of the Loan, shall maintain its bank accounts separate from those of any other Person and shall not permit any Affiliate independent access to its bank accounts (other than Existing Manager, acting in its capacity as agent pursuant to the Management Agreement, or any other Manager that is under common Control with Existing Manager or Guarantor), except as otherwise contemplated by the Loan Documents with respect to each Borrower;

(xl) is, and shall continue to be duly formed, validly existing, and in good standing in the state of its formation and duly qualified in all other jurisdictions where it is required to be qualified in order to do business;

(xli) has no material contingent or actual obligations, other than, (A) in the case of Borrower, material contingent or actual obligations related to the Individual Property or Individual Properties owned by it and Permitted POP Obligations (or obligations relating to a Previously Owned Property that are covered by insurance or subject to reimbursement by a third party) and (B) in the case of an SPE Constituent Entity, material contingent or actual obligations related to its ownership of the applicable Special Purpose Entity; and

(xlii) if treated as a “disregarded entity” for tax purposes, does not have and shall not have any obligation to reimburse its equityholders or any of their Affiliates for any taxes that such equityholders or any of their Affiliates may incur as a result of any profits or losses of such entity.

“Split Loan” shall have the meaning set forth in Section 9.1.2(a) hereof.

“Splitting Documentation” shall have the meaning set forth in Section 9.1.2(a) hereof.

“Sponsor” shall mean (a) initially, Initial Sponsor, (b) following a Permitted Assumption, the applicable Permitted Assumption Parties or (c) following a Public Sale, the applicable Public Vehicle.

“Spread” shall mean, the following amount, as the same may be reallocated pursuant to, and in accordance with the restrictions and limitations contained in Sections 2.1.6 and 9.1.2:

(i) initially, 2.00% per annum;

(ii) upon the commencement of the first Extension Term, 2.25% per annum until the first Extended Maturity Date;

(iii) upon the commencement of the second Extension Term, 2.50% per annum; and

(iv) following the bifurcation of the Note into multiple Components pursuant to Section 2.1.6, (x) with respect to each Component, its Component Spread, and (y) with respect to the Loan as a whole, the weighted average of the Component Spreads of the Components at the time of determination.

“State” shall mean, with respect to an Individual Property, the State or Commonwealth in which such Individual Property or any part thereof is located.

“Standard of Care” shall have the meaning set forth in Section 11.17 hereof.

“Strike Price” shall mean (a) for the period from the Closing Date through and including the Initial Maturity Date, a rate no greater than 5.50% (the “Initial Strike Price”); (b) as of the commencement date for any Extension Term, a rate equal to the greater of (i) the Initial Strike Price and (ii) the rate that yields a per annum interest rate that would result in the Debt Service Coverage Ratio (calculated using the Spread for the relevant Extension Term for which the related Interest Rate Protection Agreement is being purchased) being no less than 1.10:1.00 the “Extension Strike Price”) and (c) if elected by Borrower in its sole discretion, a rate that is lower than the Required Strike Price. Notwithstanding the foregoing, Borrower shall be permitted, in its sole discretion, to purchase an Interest Rate Protection Agreement during the Extension Term, at a Strike Price lower than the Extension Strike Price.

“Strike Price Delta” shall mean the difference between (a) the Alternate Strike Price and (b) the Required Strike Price.

“Substitute Interest Rate Protection Agreement” shall have the meaning set forth in Section 2.2.7(h) hereof.

“Survey” shall mean a survey of the Individual Property in question prepared by a surveyor licensed in the State in which such Individual Property is located and satisfactory to Administrative Agent and the company or companies issuing the applicable Title Insurance Policy relating to such Individual Property or any part thereof, and containing a certification of such surveyor satisfactory to Administrative Agent.

“Syndication” shall have the meaning set forth in Section 9.1.1(a) hereof.

“Tax and Insurance Adjustment” shall have the meaning set forth in the definition of “Operating Expenses” hereof.

“Tax and Insurance Reserve Account” shall have the meaning set forth in Section 7.2.1 hereof.

“Tax and Insurance Reserve Funds” shall have the meaning set forth in Section 7.2.1 hereof.

“Tax Bill” shall have the meaning set forth in Section 7.2.1 hereof.

“Tax Reserve Funds” shall have the meaning set forth in Section 7.2.1 hereof.

“Taxes” shall mean all real estate and personal property taxes, assessments, water rates or sewer rents, now or hereafter levied or assessed or imposed against any Individual Property or part thereof.

“TC Cap” shall have the meaning set forth in Section 6.1(a)(ix) hereof.

“Tenant” shall mean any Person with a possessory right to all or any part of an Individual Property pursuant to a Lease.

“Term SOFR” shall mean, with respect to each Interest Period, the Term SOFR Reference Rate rounded to the nearest 1/1000^th of one percent (1.0%) for a one-month period on the day (such day, the “Periodic Term SOFR Determination Day”) that is two (2) U.S. Government Securities Business Days prior to the first day of such Interest Period, as such rate is published by the Term SOFR Administrator; provided, that if as of 5:00 p.m. (New York City time) on any Periodic Term SOFR Determination Day the Term SOFR Reference Rate for a one-month period has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for a one-month period as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for a one-month period was published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to such Periodic Term SOFR Determination Day. Notwithstanding the foregoing, in no event will Term SOFR be deemed to be less than zero percent (0%).

“Term SOFR Administrator” shall mean CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by Administrative Agent in its reasonable discretion).

“Term SOFR Reference Rate” shall mean the one-month forward-looking term rate based on SOFR, currently identified on the CME Group’s website at xxxxx://xxx.xxxxxxxx.xxx/xxxxxx-xxxx/xxx-xxxxx-xxxxxxxxx-xxxxxxxxxxxxxx/xxxx-xxxx.xxxx or any successor source.

“Title Company” shall mean, individually or collectively, Xxxxxxx Title Insurance Company, First American Title Insurance Company, Chicago Title Insurance Company and Old Republic National Title Insurance Company.

“Title Insurance Policy” shall mean, with respect to each Individual Property, an ALTA mortgagee title insurance policy in a form reasonably acceptable to Administrative Agent (or, if an Individual Property is in a State which does not permit the issuance of such ALTA policy, such form as shall be permitted in such State and reasonably acceptable to Administrative Agent) issued with respect to such Individual Property and insuring the Lien of the Mortgage encumbering such Individual Property.

“Title Policy Issuance Date” shall have the meaning set forth in the Escrow Agreement.

“Transfer” shall have the meaning set forth in Section 5.2.10(b) hereof.

“Transferee” shall have the meaning set forth in Section 5.2.10(e) hereof.

“TRIPRA” shall have the meaning set forth in Section 6.1(a)(ix) hereof.

“U.S. Obligations” shall mean non‑redeemable securities evidencing an obligation to timely pay principal and/or interest in a full and timely manner that are direct obligations of the United States of America for the payment of which its full faith and credit is pledged.

“UCC” or “Uniform Commercial Code” shall mean, unless otherwise set forth herein, the Uniform Commercial Code as in effect in the applicable State in which an Individual Property is located.

“UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.

“UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.

“Unadjusted Alternate Index Rate” means the Alternate Index Rate excluding the Alternate Rate Spread Adjustment.

“Unanimous Decisions” shall have the meaning set forth in Section 10.30(c) hereof.

“Undeveloped Land” shall have the meaning set forth in Section 2.6.2 hereof.

“Unencumbered Borrower” shall have the meaning set forth in Section 2.6.1(f) hereof.

“U.S. Government Securities Business Day” shall mean any day except for (a) a Saturday, (b) a Sunday, or (c) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.

“Weighted Average Spread” shall mean the weighted average of the Spreads for each Note (or each Component, if applicable), weighted on the basis of their respective principal balances.

“Xxxxx” shall have the meaning set forth in the introductory paragraph hereto.

“Write‑Down and Conversion Powers” means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EEA Bail-In Legislation Schedule and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.

“Zoning Reports” shall mean those certain planning and zoning reports provided to Administrative Agent and Lender in connection with the origination of the Loan.

Section

1.2 Principles of Construction. All references to Sections and schedules are to Sections and schedules in or to this Agreement unless otherwise specified. All uses of the word “including” shall mean “including, without limitation” unless the context shall indicate otherwise. Unless otherwise specified, the words “hereof”, “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. Unless otherwise specified, all meanings attributed to defined terms herein shall be equally applicable to both the singular and plural forms of the terms so defined.

ARTICLE II

GENERAL TERMS

Section

2.1 Loan Commitment; Disbursement to Borrower

2.1.1

Agreement to Lend and Borrow. Subject to and upon the terms and conditions set forth herein, Xxxxxx hereby agrees to make, and Xxxxxxxx hereby agrees to accept, the Loan on the Closing Date.

2.1.2

No Reborrowings. Any amount borrowed and repaid hereunder in respect of the Loan may not be re-borrowed. Xxxxxxxx acknowledges and agrees that the Loan was fully funded as of the Closing Date.

2.1.3

Intentionally Omitted.

2.1.4

The Note, Mortgages and Loan Documents. The Loan shall be evidenced by the Note and secured by the Mortgages and the other Loan Documents.

2.1.5

Use of Proceeds. Borrower used the proceeds of the Loan to (a) to acquire or recapitalize the recent acquisitions of the Properties (including a distribution of Loan proceeds to its parent(s) in order to pay the merger consideration in connection with the acquisition of the indirect parent of Borrowers, (b) pay carrying costs with respect to the Properties, (c) make deposits (if any) into the Reserve Funds on the Closing Date in the amounts provided herein, if any, (d) pay costs and expenses incurred in connection with the closing of the Loan, the operation of the Properties and other transaction costs, (e) make distributions to any direct or indirect equity holders in Borrower, (f) fund any working capital requirements of the Properties, and (g) to the extent any proceeds of the Loan remain after satisfying clauses (a) through (f), to fund such other general purposes as Borrower shall determine in its sole discretion.

2.1.6

Components of the Loan. In connection with any Componentization Event permitted hereunder (on one or more occasions), upon written notice (which may be delivered via email) from Administrative Agent to Borrower (a “Componentization Notice”), the Note will be deemed to have been subdivided into multiple components (“Components”). Each Component shall have such notional balance as Administrative Agent shall specify in the Componentization Notice and an interest rate equal to the sum of (i) such amount as Administrative Agent shall specify in such Componentization Notice (a “Component Spread”) plus (ii) Term SOFR; provided that the sum of the principal balances of all Components shall equal the then-current outstanding principal amount of the Loan, and the Weighted Average Spread for all Components shall initially equal the then-applicable percentage set forth in clauses (i)-(iii) of the definition of “Spread”, as the same may have increased following a prior Componentization Event due to a Permitted Adjustment Event. Borrower shall be treated as the obligor with respect to each of the Components, and Borrower acknowledges that each Component may be individually beneficially owned by a separate Person. The Components need not be represented by separate physical Notes, but if requested by Administrative Agent in writing, each Component shall be represented by a separate physical Note (each, a “Replacement Note”), in which case Borrowers shall execute and return to Lender each such Replacement Note, in the same form as the Note executed and delivered on the Closing Date, promptly following Xxxxxxxx’s receipt of an execution copy thereof and upon return of any Note which evidences the indebtedness secured by such Replacement Note (which may be accomplished through mutually acceptable escrow arrangements). Notwithstanding anything to the contrary contained herein, any reallocation or creation of any Components pursuant to this Section (i) shall not increase (x) any monetary obligation of Borrower or Guarantor, or (y) any other obligation or liability of Borrower under the Loan Documents in any respect or (z) any other obligation or liability of Guarantor in any respect, (ii) shall not change the dates of the Interest Period, the Maturity Date or the Payment Date (except as may be permitted pursuant to the definitions thereof), (iii) shall not affect the time periods during which Borrower or Guarantor is permitted to perform any obligations under the Loan Documents, (iv) shall not require amortization of the Loan and (v) shall not decrease any of Borrower’s or Guarantor’s rights or remedies under the Loan Documents in any respect.

Section

2.2 Interest Rate.

2.2.1

Interest Rate. Except as herein provided with respect to interest accruing at the Default Rate, subject to Section 2.2.4, interest on each Note (or each Component, if applicable) outstanding from time to time shall, subject to Section 2.2.5, accrue at the SOFR Rate from (and including) the Closing Date until (and including) the Maturity Date. Borrower shall pay to Administrative Agent, for the account of each Lender, on each Payment Date the interest accrued on the Outstanding Loan Amount for the related Interest Period.

2.2.2

Interest Calculation. Interest on the outstanding principal balance of each Note (or each Component, if applicable) of the Loan shall be calculated by multiplying (a) the actual number of days elapsed in the relevant Interest Period for which such calculation is being made by (b) a daily rate based on the Interest Rate applicable to such Note (or Component, if applicable) and a three hundred sixty (360) day year by (c) the Outstanding Loan Amount.

2.2.3

Default Rate. In the event that, and for so long as, any Event of Default shall have occurred and be continuing, the Outstanding Loan Amount and, to the extent permitted by law, all accrued and unpaid interest in respect of the Loan and any other amounts due pursuant to the Loan Documents, shall accrue interest at the Default Rate, calculated from the date such payment was due without regard to any grace or cure periods contained herein. Interest at the Default Rate shall be computed from the occurrence of the Event of Default until (i) in the event of an Event of Default that is non‑monetary in nature, the cure of such Event of Default by Borrower or (ii) in the event of an Event of Default that is monetary in nature, the actual receipt and collection of the Debt (or that portion thereof that is then due). This Section 2.2.3 shall not be construed as an agreement or privilege to extend the date of the payment of the Debt, nor as a waiver of any other right or remedy accruing to Administrative Agent and Lender by reason of the occurrence of any Event of Default, and each of Administrative Agent and Lender retains its rights under the Note and this Agreement to accelerate and to continue to demand payment of the Debt during the continuance of any Event of Default.

2.2.4

Usury Savings. This Agreement, the Note and the other Loan Documents are subject to the express condition that at no time shall Borrower be obligated or required to pay interest on the principal balance of the Loan at a rate which could subject Lender to either civil or criminal liability as a result of being in excess of the Maximum Legal Rate. If, by the terms of this Agreement or the other Loan Documents, Borrower is at any time required or obligated to pay interest on the principal balance due hereunder at a rate in excess of the Maximum Legal Rate, the Interest Rate or the Default Rate, as the case may be, shall be deemed to be immediately reduced to the Maximum Legal Rate and all previous payments in excess of the Maximum Legal Rate shall be deemed to have been payments in reduction of principal and not on account of the interest due hereunder. All sums paid or agreed to be paid to Lender for the use, forbearance, or detention of the sums due under the Loan, shall, to the extent permitted by applicable law, be amortized, prorated, allocated, and spread throughout the full stated term of the Loan until payment in full so that the rate or amount of interest on account of the Loan does not exceed the Maximum Legal Rate of interest from time to time in effect and applicable to the Loan for so long as the Loan is outstanding.

2.2.5

Determination of Interest Rate.

(a)

Interest Rate. The Interest Rate with respect to each Note of the Loan shall be: (A) the SOFR Rate with respect to the applicable Interest Period if the Loan is a SOFR Loan, (B) the Alternate Rate with respect to the applicable Interest Period if the Loan is an Alternate Rate Loan or (C) the Prime Rate with respect to the applicable Interest Period if the Loan is a Prime Rate Loan, in each case determined by Administrative Agent as of the Determination Date.

(b)

Benchmark Unavailability Period. During a Benchmark Unavailability Period, following Xxxxxxxx’s receipt of notice of the commencement of such Benchmark Unavailability Period, the component of the Interest Rate based on Term SOFR (or the then-current Benchmark if the Loan is then an Alternate Rate Loan) shall be replaced, as of the first day of the next succeeding Interest Period and for the remainder of such Benchmark Unavailability Period, with the Prime Index Rate and the Loan shall be converted to a Prime Rate Loan bearing interest based on the Prime Rate in effect on each applicable Determination Date.

(c)

Subject to the terms and conditions hereof, the Loan shall be either a SOFR Loan, a Prime Rate Loan or an Alternate Rate Loan, as applicable, and Borrower shall pay interest on the Outstanding Loan Amount at the SOFR Rate, the Prime Rate or at the Alternate Rate, as applicable, for the applicable Interest Period. Each determination by Administrative Agent of the Interest Rate shall be conclusive and binding for all purposes, absent manifest error.

(d)

Effect of a Benchmark Transition Event.

(i)

Notwithstanding anything to the contrary herein or in any other Loan Document, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred prior to the Periodic Term SOFR Determination Day (or if the Benchmark is not the Term SOFR Reference Rate, the Determination Date) for any Interest Period, the Alternate Index Rate will replace the then current Benchmark for all purposes hereunder or under any Loan Document in respect of such determination and all determinations on all subsequent Periodic Term SOFR Determination Days (or if the Benchmark is not the Term SOFR Reference Rate, the Determination Dates) (without any amendment to, or further action or consent of any other party to, this Agreement) so long as the Administrative Agent has not received, by such time, written notice of objection to such Alternate Index Rate from two-thirds (2/3^rds) of Lenders (determined by principal amount of the Loan held by such Lender(s)).

(ii)

In connection with the use, administration, adoption, or implementation of an Alternate Index Rate, Administrative Agent will have the right to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of the Borrower or any other party to this Agreement or any other Loan Document.

(iii)

Administrative Agent will promptly notify Borrower and each Lender of (i) any Benchmark Replacement Date, (ii) the implementation of any Alternate Index Rate, (iii) the effectiveness of any Conforming Changes, and/or (iv) any Benchmark Unavailability Period. Any determination, decision or election that is made by Administrative Agent pursuant to and in accordance with this Section, including any determination with respect to a rate or adjustment or of the occurrence or nonoccurrence of a Benchmark Replacement Date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error.

(iv)

Notwithstanding any provision of this Agreement to the contrary, in no event shall Borrower have the right to convert (i) a SOFR Loan to a Prime Rate Loan or an Alternate Rate Loan, (ii) a Prime Rate Loan to a SOFR Loan or an Alternate Rate Loan or (iii) an Alternate Rate Loan to a SOFR Loan or a Prime Rate Loan.

(e)

If the adoption of any requirement of law or any change therein or in the interpretation or application thereof, shall hereafter make it unlawful for any Lender to make or maintain a SOFR Loan or Alternate Rate Loan as contemplated hereunder, (i) the obligation of Lender hereunder to make a SOFR Loan or Alternate Rate Loan or to convert a Prime Rate Loan to a SOFR Loan or an Alternate Rate Loan shall be canceled forthwith and (ii) any outstanding SOFR Loan or Alternate Rate Loan shall be converted automatically to a Prime Rate Loan on the first day of the next succeeding Interest Period or within such earlier period as required by law. Xxxxxxxx hereby agrees promptly to pay Lender, upon demand, any additional amounts necessary to compensate Lender for any costs incurred by Lender in making any conversion in accordance with this Agreement, including, without limitation, any interest or fees actually payable by Lender to lenders of funds obtained by it in order to make or maintain the SOFR Loan hereunder. Xxxxxx’s notice of such costs, as certified to Borrower, shall be conclusive absent manifest error.

(f)

In the event that any change in any requirement of law or in the interpretation or application thereof, or compliance by any Lender with any request or directive (whether or not having the force of law) hereafter issued from any central bank or other Governmental Authority:

(i)

shall hereafter impose, modify or hold applicable any reserve, special deposit, compulsory loan or similar requirement against assets held by, or deposits or other liabilities in or for the account of, advances or loans by, or other credit extended by, or any other acquisition of funds by, any office of any Lender which is not otherwise included in the determination of the Applicable Index Rate hereunder;

(ii)

shall hereafter have the effect of reducing the rate of return on any Lender’s capital (other than as a result of Section 2.9 Taxes) as a consequence of its obligations hereunder to a level below that which Xxxxxx could have achieved under the Loan Documents but for such adoption, change or compliance (taking into consideration Lender’s policies with respect to capital adequacy) by any amount deemed by Lender to be material;

(iii)

shall hereafter subject any Lender to any Section 2.9 Taxes (other than Non-Excluded Taxes and Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or

(iv)

shall hereafter impose on any Lender any other condition (other than Section 2.9 Taxes) and the result of any of the foregoing is to increase the cost to Lender of making, renewing or maintaining loans or extensions of credit or to reduce any amount receivable hereunder;

then, in any such case, Borrower shall promptly pay Lender, upon demand, any additional amounts necessary to compensate Lender for such additional cost or reduced amount receivable which Lender deems to be material as determined by Lender in its reasonable discretion. If Xxxxxx becomes entitled to claim any additional amounts pursuant to this Section 2.2.5(f), Lender shall provide Borrower with not less than thirty (30) days written notice specifying in reasonable detail the event by reason of which it has become so entitled and the additional amount required to fully compensate Lender for such additional cost or reduced amount. A certificate as to any additional costs or amounts payable pursuant to the foregoing sentence submitted by Lender to Borrower shall be conclusive in the absence of manifest error. Subject to Section 2.2.5(h) hereof, this provision shall survive payment of the Note and the satisfaction of all other obligations of Borrower under this Agreement and the Loan Documents.

(g)

Lender shall not be entitled to claim compensation pursuant to this Section 2.2.5 for any increased cost or reduction in amounts received or receivable hereunder, or any reduced rate of return, which was incurred or which accrued prior to the earlier of (i) ninety (90) days before the date Lender notified Borrower of the change in law or other circumstance on which such claim for compensation is based and delivered to Borrower a written statement setting forth in reasonable detail the basis for the calculation of the additional amounts owed to Lender under this Section 2.2.5, which statement shall be conclusive and binding on all parties absent manifest error, and (ii) any earlier date provided Xxxxxx notified Borrower of such change in law or circumstance and delivered the written statement referenced in clause (i) within ninety (90) days after Xxxxxx received written notice of such change in law or circumstance.

(h)

Xxxxxxxx agrees to indemnify Administrative Agent and Lender and to hold Administrative Agent and Lender harmless from any actual out-of-pocket loss or expense which Administrative Agent and/or Lender sustains or incurs as a consequence of (i) any default by Borrower in payment of the principal of or interest on a SOFR Loan or Alternate Rate Loan, including, without limitation, any such loss or expense arising from interest or fees payable by Lender to third-party lenders of funds obtained by it in order to maintain a SOFR Loan or Alternate Rate Loan hereunder, (ii) any prepayment (whether voluntary or mandatory) of the SOFR Loan or Alternate Rate Loan on a day that (A) is not a Payment Date or (B) is a Payment Date if Borrower did not give the prior written notice of such prepayment required pursuant to the terms of this Agreement, including, without limitation, such loss or expense arising from interest or fees payable by Lender to third-party lenders of funds obtained by it in order to maintain the SOFR Loan or Alternate Rate Loan hereunder and (iii) the conversion pursuant to the terms hereof of the SOFR Loan to a Prime Rate Loan or an Alternate Rate Loan on a date other than the Payment Date, including, without limitation, such loss or expenses arising from interest or fees payable by Lender to third-party lenders of funds obtained by it in order to maintain a SOFR Loan or Alternate Rate Loan hereunder (the amounts referred to in clauses (i), (ii) and (iii) are herein referred to collectively as the “Breakage Costs”), subject to Section 2.4.1 and Section 2.4.4; provided, however, (x) in no event shall Breakage Costs with respect to any instance of the foregoing exceed the interest that would be payable on the Loan through the end of the then-current Interest Period, (y) Borrower shall not indemnify Administrative Agent and Lender from any loss or expense arising from Administrative Agent’s or Lender’s willful misconduct or gross negligence and (z) Breakage Costs with respect to any instance of the foregoing shall only be payable to Lender if such Breakage Costs arise from interest or fees payable by Xxxxxx to third-party lenders of funds obtained by it in order to maintain a SOFR Loan hereunder. This provision shall survive payment of the Note in full and the satisfaction of all other obligations of Borrower under this Agreement and the other Loan Documents.

(i)

If any Lender claims compensation pursuant to this Section 2.2.5 for any increased cost or reduction in amounts received or receivable hereunder, or any reduced rate of return (a “Claiming Lender”), then Borrower, upon three (3) Business Days’ written notice to Administrative Agent and such Claiming Lender (the “Claim Date”) may, at its sole expense and effort require such Claiming Lender to assign and delegate all of its interests, rights and obligations under this Agreement and the Loan Documents to an Eligible Assignee, or another lender identified by Borrower and approved by Administrative Agent that shall assume such obligations and such Claiming Lender shall promptly execute and deliver an assignment agreement evidencing the same; provided that (i) as of such Claim Date, no Event of Default shall have occurred and be continuing, (ii) such Claiming Lender shall have received from the assignee Lender or Borrower payment of an amount equal to the portion of the Outstanding Loan Amount owed to such Claiming Lender as of the date such Claiming Lender is replaced, together with accrued and unpaid interest thereon, and any other amounts due and payable to the Claiming Lender hereunder and under the other Loan Documents in respect of its interest in the Loan had the Loan been repaid in full at such time, including Breakage Costs and (iii) such assignment does not conflict with applicable law.

2.2.6

Additional Costs. Lender will use reasonable efforts (consistent with legal and regulatory restrictions) to maintain the availability of the SOFR Loan or Alternate Rate Loan, as applicable, and to avoid or reduce any increased or additional costs payable by Borrower under Section 2.2.5(f), including, if requested by Xxxxxxxx, a transfer or assignment of the Loan to a branch, office or Affiliate of Lender in another jurisdiction, or a redesignation of its lending office with respect to the Loan, in order to maintain the availability of the SOFR Loan or Alternate Rate Loan, as applicable, or to avoid or reduce such increased or additional costs, provided that the transfer or assignment or redesignation (a) would not result in any additional costs, expenses or risk to Lender that are not reimbursed by Xxxxxxxx and (b) would not be disadvantageous in any other respect to Lender as determined by Lender in its reasonable discretion.

2.2.7

Interest Rate Protection Agreement.

(a)

On or prior to September 26, 2024, Borrower Interest Rate Cap Party shall enter into an Interest Rate Protection Agreement with a strike price no greater than the Initial Strike Price or, if the Alternate Strike Price Condition has been satisfied, the Alternate Strike Price. The Interest Rate Protection Agreement (i) shall at all times be in a form and substance reasonably acceptable to Administrative Agent with respect to such matters not otherwise set forth in this Agreement, (ii) shall at all times be with an Acceptable Counterparty, (iii) shall direct such Acceptable Counterparty to deposit directly into the Cap Account, or during the continuance of an Event of Default, as directed by Administrative Agent, any amounts due Borrower Interest Rate Cap Party under such Interest Rate Protection Agreement so long as any portion of the Debt exists, provided that the Debt shall be deemed to exist if the Properties are transferred by judicial or non‑judicial foreclosure or deed‑in‑lieu thereof, (iv) shall be for a term through the end of the then-applicable Maturity Date of the Loan and (v) shall at all times have a notional amount equal to (or at Borrower’s sole discretion, greater than) the then Outstanding Loan Amount and shall at all times provide for the Applicable Strike Price or, if the Alternate Strike Price Condition has been satisfied, the Alternate Strike Price. Borrower Interest Rate Cap Party shall collaterally assign to Administrative Agent, for the benefit of Lender, pursuant to the Collateral Assignment of Interest Rate Cap Agreement (the “Assignment of Interest Rate Protection Agreement”), all of its right, title and interest to receive any and all payments under the Interest Rate Protection Agreement, and shall deliver to Administrative Agent an executed counterpart of such Interest Rate Protection Agreement (which shall, by its terms, authorize the assignment to Administrative Agent and require that payments be deposited directly into the Cap Account) and shall notify the Acceptable Counterparty of such assignment.

(b)

Borrower Interest Rate Cap Party shall comply with all of its obligations under the terms and provisions of the Interest Rate Protection Agreement. All amounts paid by the Acceptable Counterparty under the Interest Rate Protection Agreement to Borrower Interest Rate Cap Party or Administrative Agent shall be directly deposited in the Cap Account, or during the continuance of an Event of Default, as directed by Administrative Agent. Borrower Interest Rate Cap Party shall take all actions reasonably requested by Administrative Agent to enforce Administrative Agent’s rights under the Interest Rate Protection Agreement in the event of a default by the Acceptable Counterparty. Borrower Interest Rate Cap Party shall not waive, amend or otherwise modify any of Borrower Interest Rate Cap Party’s rights thereunder without Administrative Agent’s prior written consent; provided, however, Borrower Interest Rate Cap Party may agree to amend an Interest Rate Protection Agreement without first obtaining Administrative Agent’s consent, solely for the purpose of reducing the notional amount under such Interest Rate Protection Agreement, provided that the notional amount, after giving effect to such amendment, is at least equal to the then Outstanding Loan Amount (a “Notional Amount Reduction”), and any payment that is owing to Borrower Interest Rate Cap Party by such Acceptable Counterparty in connection with a Notional Amount Reduction shall not be considered a part of Administrative Agent’s collateral. Administrative Agent shall, at the request of Xxxxxxxx, direct the Counterparty to permit a Notional Amount Reduction to the extent required by a Counterparty, and otherwise reasonably cooperate with Borrower, at Borrower’s sole cost and expense, in order to effectuate a Notional Amount Reduction.

(c)

In the event that the counterparty to the Interest Rate Protection Agreement (or the guarantor of such counterparty’s obligations, if any) is no longer an Acceptable Counterparty (whether as a result of downgrade, withdrawal or qualification of the rating of such counterparty (or the guarantor of such counterparty’s obligations, if any)), Borrower Interest Rate Cap Party shall replace or cause the cap provider to replace the Interest Rate Protection Agreement with a Replacement Interest Rate Protection Agreement not later than the period of time provided for in such Interest Rate Protection Agreement following such downgrade, withdrawal or qualification (not to exceed ten (10) Business Days), provided, Borrower Interest Rate Cap Party shall not be required to replace the Interest Rate Protection Agreement with a Replacement Interest Rate Protection Agreement so long as within ten (10) Business Days of such downgrade, withdrawal or qualification, the Acceptable Counterparty under the Interest Rate Protection Agreement either (x) provides a guaranty of its obligations from a guarantor that is an Acceptable Counterparty pursuant to such terms as are reasonably acceptable to Administrative Agent or (y) posts collateral pursuant to a credit support annex that was executed on the effective date of the Interest Rate Protection Agreement, which credit support annex is reasonably acceptable to the Administrative Agent.

(d)

In the event that Borrower Interest Rate Cap Party fails to purchase and deliver to Administrative Agent the Interest Rate Protection Agreement or fails to maintain the Interest Rate Protection Agreement in accordance with the terms and provisions of this Agreement, Administrative Agent may on behalf of the Lenders purchase the Interest Rate Protection Agreement and the cost incurred by Administrative Agent in purchasing such Interest Rate Protection Agreement shall be paid by Borrower to Administrative Agent with interest thereon at the Default Rate from the date such cost was incurred by Administrative Agent until such cost is reimbursed by Xxxxxxxx to Administrative Agent.

(e)

In connection with the Interest Rate Protection Agreement, if requested by Administrative Agent, Borrower Interest Rate Cap Party shall obtain and deliver to Administrative Agent within fifteen (15) Business Days following (x) the Closing Date or (y) the later of (A) the first day of any applicable Extension Term or (B) Borrower’s entrance into an Interest Rate Protection Agreement in accordance with Section 2.8 hereof, as applicable (i) a resolution/consent, as applicable, of the Acceptable Counterparty authorizing the delivery of the Interest Rate Protection Agreement reasonably acceptable to Administrative Agent, and (ii) an opinion (which may be in pdf form) from counsel (which counsel may be in‑house counsel for the Acceptable Counterparty and otherwise on such Acceptable Counterparty’s then-customary form) for the Acceptable Counterparty (upon which Administrative Agent may rely) which shall provide, in relevant part, that:

(i)

the Acceptable Counterparty is validly existing, and in good standing under the laws of its jurisdiction of incorporation or formation and has the organizational power and authority to execute and deliver, and to perform its obligations under, the Interest Rate Protection Agreement;

(ii)

the execution and delivery of the Interest Rate Protection Agreement by the Acceptable Counterparty, and any other agreement which the Acceptable Counterparty has executed and delivered pursuant thereto, and the performance of its obligations thereunder have been and remain duly authorized by all necessary action and do not contravene any provision of its certificate of incorporation or by‑laws (or equivalent organizational documents) or any law, regulation or contractual restriction binding on or affecting it or its property;

(iii)

all consents, authorizations and approvals required for the execution and delivery by the Acceptable Counterparty of the Interest Rate Protection Agreement, and any other agreement which the Acceptable Counterparty has executed and delivered pursuant thereto, and the performance of its obligations thereunder have been obtained and remain in full force and effect, all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with any governmental authority or regulatory body is required for such execution, delivery or performance; and

(iv)

the Interest Rate Protection Agreement, and any other agreement which the Acceptable Counterparty has executed and delivered pursuant thereto, has been duly executed and delivered by the Acceptable Counterparty and constitutes the legal, valid and binding obligation of the Acceptable Counterparty, enforceable against the Acceptable Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).

(f)

At such time as the Loan is repaid in full, all of Administrative Agent’s right, title and interest in and to the Interest Rate Protection Agreement shall automatically terminate and Administrative Agent shall execute and deliver such documents as may be required to evidence Administrative Agent’s release of the Interest Rate Protection Agreement and to notify Acceptable Counterparty of such release.

(g)

Notwithstanding anything to the contrary contained in this Section 2.2.7 or elsewhere in this Agreement, if, at any time, the Loan is converted from (I) a SOFR Loan to either a Prime Rate Loan or an Alternate Rate Loan, (II) a Prime Rate Loan to an Alternate Rate Loan or (III) an Alternate Rate Loan to an Alternate Rate Loan based on a different Alternate Index Rate in accordance with Section 2.2.5 hereof (each, a “Index Rate Conversion”), then:

(i)

within thirty (30) days after such Index Rate Conversion, Borrower Interest Rate Cap Party shall either (A) enter into, make all payments under, and satisfy all conditions precedent to the effectiveness of, a Substitute Interest Rate Protection Agreement (and in connection therewith, but not prior to Borrower Interest Rate Cap Party taking all the actions described in this clause (i), Borrower Interest Rate Cap Party shall have the right to terminate any then-existing Interest Rate Protection Agreement) or (B) cause the then-existing Interest Rate Protection Agreement to be modified such that such then-existing Interest Rate Protection Agreement satisfies the requirements of a Substitute Interest Rate Protection Agreement as set forth below in the definition thereof (a “Converted Interest Rate Protection Agreement”); and

(ii)

on or after such Index Rate Conversion (provided Lender has not converted the Loan back to a SOFR Loan in accordance with Section 2.2.5(c) hereof), in lieu of satisfying the condition described in Section 2.8(c) with respect to any outstanding Extension Term, Borrower Interest Rate Cap Party shall instead enter into, make all payments under, and satisfy all conditions precedent to the effectiveness of a Substitute Interest Rate Protection Agreement on or prior to the first day of such Extension Term.

(h)

As used herein, “Substitute Interest Rate Protection Agreement” shall mean an interest rate protection agreement between an Acceptable Counterparty and Borrower Interest Rate Cap Party, obtained by Borrower Interest Rate Cap Party and collaterally assigned to Administrative Agent pursuant to this Agreement and shall contain each of the following:

(i)

a term expiring no earlier than the then-applicable Maturity Date;

(ii)

the notional amount of the Substitute Interest Rate Protection Agreement shall be equal to (or at Borrower’s sole discretion, greater than) the then Outstanding Loan Amount;

(iii)

it provides that the only obligation of Borrower Interest Rate Cap Party thereunder is the making of a single payment to the Acceptable Counterparty thereunder upon the execution and delivery thereof;

(iv)

it provides to Administrative Agent and Borrower Interest Rate Cap Party (as determined by Administrative Agent in its sole but good faith discretion) for the term of the Substitute Interest Rate Protection Agreement, a hedge against rising interest rates that is no less beneficial to Borrower Interest Rate Cap Party and Administrative Agent than (A) in the case of clause 2.2.7(g)(i) above, that which was provided by the Interest Rate Protection Agreement being replaced by the Substitute Interest Rate Protection Agreement and (B) in the case of clause 2.2.7(g)(ii) above, that which was intended to be provided by the Interest Rate Protection Agreement that, but for the operation of this Section 2.2.7(h), would have been required to have been delivered by Borrower Interest Rate Cap Party pursuant to Section 2.8(c) hereof as a condition to the requested Extension Term; and

(v)

without limiting any of the provisions of the preceding clauses (i) through (iv) above, it satisfies all of the requirements set forth in clauses (i) through (iii) of Section 2.2.7(a) hereof.

From and after the date of any Index Rate Conversion, all references to “Interest Rate Protection Agreement” and “Replacement Interest Rate Protection Agreement” herein (other than in the definition of “Interest Rate Protection Agreement”, the definition of “Replacement Interest Rate Protection Agreement” and as referenced in the first sentence of Section 2.2.7(a) hereof) shall be deemed to refer or relate, as applicable, to a Substitute Interest Rate Protection Agreement or a Converted Interest Rate Protection Agreement, as the case may be.

Notwithstanding anything to the contrary set forth in this Section 2.2.7, Borrower shall not be required to obtain a Substitute Interest Rate Protection Agreement or Converted Interest Rate Protection Agreement, as applicable, during any period when the Loan is outstanding as a Prime Rate Loan, if such a Substitute Interest Rate Protection Agreement or Converted Interest Rate Protection Agreement, as the case may be, is (1) not then commercially available at commercially reasonable rates and (2) not required for commercial mortgage loans similar to the Loan. If Borrower is not required to obtain a Substitute Interest Rate Protection Agreement or Converted Interest Rate Protection Agreement pursuant to the terms of this Section 2.2.7, then Xxxxxxxx and Administrative Agent shall work together to find a mutually agreeable alternative to a Substitute Interest Rate Protection Agreement or Converted Interest Rate Protection Agreement that would afford Administrative Agent for the benefit of Lender substantially equivalent protection from increases in the interest rate.

Section

2.3 Loan Payment.

2.3.1

Monthly Debt Service Payments. Borrower shall pay to Administrative Agent for the benefit of Lender (a) on the Closing Date, an amount equal to interest only on the Outstanding Loan Amount for the initial Interest Period and (b) on the Payment Date occurring in August, 2024, and on each Payment Date thereafter up to and including the Maturity Date, the Monthly Debt Service Payment Amount.

2.3.2

Payments Generally. The first Interest Period hereunder shall commence on and include June 26, 2024 and shall end on and include July 14, 2024. Thereafter during the term of the Loan, each Interest Period shall commence on the fifteenth (15^th) day of the calendar month preceding the calendar month in which the related Payment Date occurs and shall end on and include the fourteenth (14^th) day of the calendar month in which the related Payment Date occurs. For purposes of making payments hereunder, but not for purposes of calculating Interest Periods, if the day on which such payment is due is not a Business Day, then amounts due on such date shall be due on the immediately preceding Business Day and with respect to payments of principal of the Loan due on the Maturity Date, interest shall be payable at the Interest Rate or the Default Rate, as the case may be, through and including the Maturity Date. All amounts due pursuant to this Agreement and the other Loan Documents shall be payable without setoff, counterclaim, defense or any other deduction whatsoever unless required by applicable law. All payments of principal and interest shall be applied to Note A-1, Note A-2, Note A-3, Note A-4, Note A-5, Note A-6, Note A-7, Note A-8 and Note A-9 on a pro rata and pari passu basis, subject to Section 11.12 hereof.

2.3.3

Payment on Maturity Date. Borrower shall pay to Administrative Agent, for the benefit of Xxxxxx, on the Maturity Date the Outstanding Loan Amount, all accrued and unpaid interest and all other amounts due hereunder and under the Note, the Mortgages and the other Loan Documents.

2.3.4

Late Payment Charge. If any principal, interest or any other sums due under the Loan Documents (excluding the balloon payment due on the Maturity Date) are not paid by Borrower on or before the date on which it is due, Borrower shall pay to Administrative Agent, for the benefit of Lender, upon demand an amount equal to the lesser of three percent (3%) of such unpaid sum and the Maximum Legal Rate in order to defray the expense incurred by Administrative Agent and/or Lender in handling and processing such delinquent payment and to compensate Lender for the loss of the use of such delinquent payment. Any such amount shall be secured by the Mortgages and the other Loan Documents to the extent permitted by applicable law.

2.3.5

Method and Place of Payment. Except as otherwise specifically provided herein, all payments and prepayments under this Agreement and the Note shall be made to Administrative Agent not later than 1:00 p.m., New York City time, on the date when due and shall be made in lawful money of the United States of America in immediately available funds at Administrative Agent’s office or as otherwise directed by Administrative Agent, and any funds received by Administrative Agent after such time shall, for all purposes hereof, be deemed to have been paid on the next succeeding Business Day.

Section

2.4 Prepayments.

2.4.1

Voluntary Prepayments.

(a)

Borrower may, at its option, prepay the Debt in full or in part at any time and from time to time; provided, that, (i) Borrower gives Administrative Agent not less than five (5) days prior written notice (which notice shall be revocable and subject to modification) (a “Prepayment Notice”) of the amount of the Loan that Borrower intends to prepay and the intended date of prepayment; (ii) intentionally omitted; and (iii) Borrower pays to Administrative Agent for the account of Lender, in addition to the portion of the Outstanding Loan Amount to be prepaid, (A) all interest which would have accrued on the amount of the Debt to be prepaid through and including the date on which such prepayment is made (all such interest payable under this clause (A), the “Additional Interest”); and (B) (I) all other sums due and payable under this Agreement, the Note, and the other Loan Documents, including, but not limited to the actual Breakage Costs (if any and provided that if such prepayment includes the payment of interest which would have accrued through and including the end of the Interest Period in which such prepayment occurs, no Breakage Costs shall be payable to Administrative Agent for the account of Lender) and (II) all of Administrative Agent’s and Lender’s reasonable, out-of-pocket costs and expenses (including reasonable actually incurred attorneys’ fees and disbursements) actually incurred by Administrative Agent and/or Lender in connection with such prepayment or in connection with a rescinded or extended Prepayment Notice. Notwithstanding anything to the contrary contained in this Section 2.4.1(a), Borrower may rescind a Prepayment Notice upon delivery of written notice to Administrative Agent on or prior to the date specified for prepayment in the Prepayment Notice; provided Borrower shall be responsible for the reasonable, out-of-pocket costs and expenses actually incurred by Administrative Agent in connection with the rescission of such Prepayment Notice, including any applicable actual Breakage Costs and reasonable actually incurred attorneys’ fees. For the avoidance of doubt, there shall be no spread maintenance premium, penalty, fee or other premium in connection with any prepayment of the Loan payable by Borrower.

(b)

In the event of any release of a portion of an Individual Property that is not (x) a full Individual Property release subject to Section 2.6.1 hereof or (y) a release of any Release Parcel/Rights subject to Section 2.6.2 hereof, Administrative Agent agrees that consent to such release shall not be conditioned upon a prepayment of the Loan in excess of the lesser of (x) Lender’s Allocation of one hundred percent (100%) of the Net Sales Proceeds derived from the sale of such portion of such Individual Property or (y) the agreed upon release amount for the release of such portion of the Individual Property.

(c)

Upon receipt by Administrative Agent of any (i) voluntary prepayment of the Loan permitted pursuant to the terms of this Agreement, (ii) prepayments of the Loan made in connection with a release of any Individual Property or Release Parcel/Rights (if any) from the Lien of the Mortgage in excess of the Allocated Loan Amount of the applicable Individual Property or Release Parcel/Rights (if any), or (iii) prepayments of the Loan made in connection with the terms and conditions of Section 2.4.2 hereof in excess of the Allocated Loan Amount of the applicable Individual Property or Release Parcel/Rights (if any), in each case the Allocated Loan Amount for each Individual Property or Release Parcel/Rights (if any) which is then subject to the Lien of the Mortgages shall be reduced on a pro rata basis by the amount of such excess.

(d)

Subject to the following sentence, if a Mezzanine Loan is outstanding, the Mezzanine Loan may not be voluntarily prepaid in whole or in part unless there is a simultaneous pro rata prepayment of the Loan and the Mezzanine Loan. Notwithstanding the foregoing and for so long as no Event of Default has occurred and is continuing, at the option of Borrower and/or Mezzanine Borrower, any voluntary prepayments may be applied by Mezzanine Borrower to the Mezzanine Loan in reverse sequential order (i.e., first, to the Mezzanine Loan until the Mezzanine Loan is paid in full) in accordance with the Mezzanine Loan Documents, without any obligation of Borrower to make a corresponding prepayment of the Loan; provided that the foregoing shall not apply to (i) prepayments made to achieve a Debt Yield Trigger Event Cure, which shall be made concurrently with a pro rata prepayment of the Loan (which portion of which prepayment applicable to the Loan shall be applied in accordance with Section 2.4.4 hereof) and the Mezzanine Loan, (ii) prepayments made from Excess Cash Flow Reserve Funds, which shall be made concurrently with a pro rata prepayment of the Loan under this Agreement and the Mezzanine Loan under the Mezzanine Loan Agreement (provided however, if such prepayments are in an amount in excess of the amount necessary to achieve a Debt Yield Trigger Event Cure and a Cash Sweep Event has not otherwise occurred and is not continuing, then such prepayments in excess of the amount necessary to achieve such Debt Yield Trigger Event Cure may be applied by a Mezzanine Borrower to the Mezzanine Loan in reverse sequential order) and (iii) prepayments in connection with a release of any Property from the Lien of the Mortgage (which portion of such prepayment applicable to the Loan shall be applied in accordance with Section 2.4.4 hereof). Provided no Event of Default is continuing, nothing herein or in any other Loan Document shall prohibit Mezzanine Borrower from prepaying at a discount all or any portion of the Mezzanine Loan subject to and in accordance with Section 10.26 hereof.

2.4.2

Mandatory Prepayments.

(a)

On the next occurring Payment Date following the date on which Administrative Agent shall receive any Net Proceeds Prepayment that Administrative Agent is entitled to apply in accordance with this Section 2.4.2 and not otherwise make available or deliver to Borrower pursuant to Section 6.4, Borrower shall prepay or authorize Administrative Agent to apply, for the account of Lender, such Net Proceeds Prepayment as a prepayment of all or a portion of the Outstanding Loan Amount in an amount equal to the aggregate of (1) the Net Proceeds Prepayment up to an amount equal to the Release Amount for the affected Individual Property, (2) intentionally omitted and (3) the actual reasonable costs of Administrative Agent and/or Lender in connection with such prepayment to the extent such amounts are not paid to Lender in accordance with Article VI hereof, excluding any Breakage Costs (collectively, the “Mortgage Mandatory Prepayment Amount”). Amounts paid to or applied by Administrative Agent, for the account of Lender, as a Mortgage Mandatory Prepayment Amount shall first be applied to amounts required to be paid by Borrower to Lender pursuant to clause (3) above and then to the amounts set forth in clauses (1) and (2) on a pro rata and pari passu basis, in each case subject to Section 11.12 hereof. Except during the continuance of an Event of Default, any Net Proceeds Prepayment in excess of the Mortgage Mandatory Prepayment Amount applied pursuant to this Section 2.4.2 shall be applied as follows: (A) first, to the Mezzanine Lender, in an amount equal to the Mezzanine Mandatory Prepayment Amount, to be applied in accordance with the Mezzanine Loan Documents and (B) lastly, to Borrower. During the continuance of an Event of Default, Administrative Agent may apply, for the account of Lender, such Net Proceeds Prepayment to the Debt (until paid in full) in any order or priority as Administrative Agent may determine in its sole discretion. No spread maintenance premium or other premium or penalty shall be due in connection with any prepayment made pursuant to this Section 2.4.2. The Release Amount for the Individual Property with respect to which such Net Proceeds Prepayment was applied shall be reduced by an amount equal to the principal portion of such prepayment applied to the Loan; provided, that, nothing herein shall be construed to reduce the aggregate Release Amount for any other Individual Property required to be paid to Administrative Agent for the account of Lender prior to obtaining a release of the applicable Individual Property. Administrative Agent shall provide to Borrower, upon ten (10) days’ prior notice, (i) a release of the Individual Property if (A) at any time the Release Amount is reduced to zero, together with such additional documents and instruments evidencing or confirming the release as the Borrower shall reasonably request, or (B) Administrative Agent is required to deliver such release pursuant to a court order issued in connection with a Condemnation or (ii) a release of the portion of an Individual Property that is subject to a Condemnation.

(b)

As provided in Section 6.4(f) hereof, each Casualty/Condemnation Prepayment tendered by Borrower to Administrative Agent, for the account of Lender, in accordance with said Section 6.4(f) shall be in the amount of the Release Amount in respect of the applicable Individual Property. No spread maintenance premium or other penalty or premium shall be due in connection with any such Casualty/Condemnation Prepayment.

(c)

In connection with any release under this Section 2.4.2, in the event that such release would result in an Individual Borrower being an Unencumbered Borrower (but subject at all times to the penultimate sentence of Section 2.6.1(f)), such Unencumbered Borrower shall automatically be released by Administrative Agent and Lender from the obligations of the Loan Documents in accordance with Section 2.6.1(f), except with respect to those obligations and liabilities which expressly survive the repayment of the Loan pursuant to any Loan Document. Administrative Agent agrees to deliver (i) a UCC-3 financing statement termination or amendment releasing Xxxxxx’s security interest in the collateral pledged to Administrative Agent relating to each Unencumbered Borrower, and (ii) instruments executed by Administrative Agent reasonably necessary to evidence the release or cancellation of each Unencumbered Borrower from its obligations under the Loan Documents. All reasonable costs and expenses incurred by Administrative Agent in connection with such release shall be paid by Borrower.

2.4.3

Prepayments After Default. If payment of all or any part of the Debt (other than payment of the Monthly Debt Service Payment Amount then due and payable) is tendered by Borrower or otherwise recovered by Administrative Agent, for the account of Lender, (including through application of any Reserve Funds) during the continuance of an Event of Default, such tender or recovery shall be made on the next occurring Payment Date together with the Monthly Debt Service Payment Amount then due and payable and shall, subject to Section 2.6.1(c), be deemed a voluntary prepayment by Borrower pursuant to Section 2.4.1(a) hereof.

2.4.4

Application of Interest and Prepayments to Components. Provided no Event of Default has occurred and is continuing, payments of principal and interest shall be applied by Administrative Agent, subject to Section 11.12 hereof, on a pro rata and pari passu basis in accordance with the then-outstanding principal balance of the Notes; provided, however, so long as no Event of Default has occurred and is continuing any voluntary prepayment of the principal of the Loan made pursuant to Section 2.4 hereof and/or Section 2.6.1 hereof shall be applied, subject to Section 11.12 hereof, to each Note on a pro rata and pari passu basis. Notwithstanding the foregoing, as between Lender and Xxxxxxxx, during the continuance of any Event of Default, any payment of principal and interest from whatever source which is made in accordance with this Agreement may be applied by Lender among the Notes, as applicable, in Xxxxxx’s sole discretion; provided that as between Administrative Agent and the Lenders, Section 11.14 shall govern such application.

Section

2.5 Reallocation of Allocated Loan Amounts. Following the Closing Date and for so long as no Event of Default has occurred and is continuing, Borrower at its sole option and sole cost and expense, may elect to have Administrative Agent order a new FIRREA appraisal (or an update to the existing appraisal) of any Individual Properties then secured by the Mortgages conducted by an independent MAI appraiser and conforming to all regulatory requirements, indicating the value of such Individual Properties which are then secured by the Mortgages. Upon receipt of such appraisals (or updates to existing appraisals), at Borrower’s request, Administrative Agent shall use reasonable efforts to agree with Borrower, in their reasonable discretion, to reallocate the then outstanding Allocated Loan Amounts related to such Individual Properties based on the “as-is” values of such Individual Properties (inclusive of any portfolio premium) identified in such appraisals (or updates to such appraisals) so long as after giving effect to such reallocation the aggregate Allocated Loan Amounts with respect to the Loan shall be equal to such aggregate amounts immediately prior to such reallocation. In connection with any such reallocation contemplated by this Section 2.5, in no event shall Administrative Agent require (i) an amendment to any Mortgage other than for an Individual Property for which such reallocation results in the amount secured by such Mortgage being less than the aggregate Allocated Loan Amount for the applicable Individual Properties secured by such Mortgage after giving effect to such reallocation or (ii) a bring-down or upsizing of the Title Insurance Policy for an Individual Property unless such reallocation results in the amount of coverage under the applicable Title Insurance Policy (including, without limitation, pursuant to any aggregation or tie-in endorsements) for such Individual Property being less than the reallocated Allocated Loan Amount for such Individual Property (or, if such Individual Property is incapable of being tied in with other Individual Properties, less than 125% of the re-allocated Allocated Loan Amount for such Individual Property).

Section

2.6 Release of Properties. Except as set forth in Section 2.4.2 or this Section 2.6, no repayment or prepayment of all or any portion of the Loan shall cause, give rise to a right to require, or otherwise result in, the release of any Lien of any Mortgage on any Individual Property. For the avoidance of doubt, any prepayment of the Loan in connection with a Condemnation or Casualty, and the related release of any Lien of any Mortgage on such Property in connection with such Condemnation or Casualty, if applicable, shall be governed solely by Section 2.4.2, Section 6.3 and Section 6.4 hereof.

2.6.1

Release of Individual Property. (a) At any time Borrower may obtain the release of an Individual Property from the Lien of the Mortgage thereon and related Loan Documents (each such Individual Property, a “Release Property”) and the release of Borrower’s obligations under the Loan Documents with respect to such Release Property (other than those expressly stated to survive), upon the satisfaction of each of the following conditions:

(i)

Borrower shall deliver notice to Administrative Agent of the proposed release of such Release Property;

(ii)

no Event of Default shall be continuing on the date that the Release Property is released from the Lien of the Mortgage thereon other than as expressly permitted below;

(iii)

Borrower shall have paid to Administrative Agent for the account of Lender the applicable Release Amount;

(iv)

Borrower shall submit to Administrative Agent, not less than ten (10) days prior to the date of such release, a release of Lien (and the related Loan Documents) (or an assignment of Lien and a release of the related Loan Documents) for such Release Property for execution by Administrative Agent. Such release shall be in a form appropriate in each jurisdiction in which such Release Property is located and that would be reasonably satisfactory to a prudent lender. In addition, Borrower shall provide all documentation Administrative Agent reasonably requires to be delivered by Borrower in connection with such release, together with an Officer’s Certificate certifying that such documentation (A) will effect such release in accordance with the terms of this Agreement, and (B) will not impair or otherwise adversely affect the Liens, security interests and other rights of Administrative Agent or Lender under the Loan Documents not being released (or as to the parties to the Loan Documents and Individual Properties subject to the Loan Documents not being released);

(v)

After giving effect to such release, the Debt Yield as of the Debt Yield Determination Date immediately preceding the date of such release (the “Release Debt Yield”) is greater than or equal to the Closing Date Debt Yield; provided, however, that in order to satisfy the Debt Yield requirement set forth in this clause (v), either (x) Borrower may make a prepayment of a portion of the Loan in accordance with Section 2.4.1 hereof in an amount equal to Lender’s Allocation of the Debt Yield Deficiency and, to the extent any Mezzanine Loan is outstanding, Mezzanine Borrower may make a prepayment of a portion of the Mezzanine Loan in accordance with the applicable section of the Mezzanine Loan Agreement in an amount equal to Lender’s Allocation (as defined in the Mezzanine Loan Agreement) of the Debt Yield Deficiency or (y) Borrower may deposit cash with Administrative Agent, for the benefit of Lender, to be held in a Reserve Account as cash collateral for the Loan in accordance with this Agreement in an amount equal to Lender’s Allocation of the Debt Yield Deficiency (the “Borrower DY Deficiency Reserve”) and, if a Mezzanine Loan is outstanding, Mezzanine Borrower may deposit cash with Mezzanine Lender to be held in a reserve account as cash collateral for the Mezzanine Loan in accordance with the Mezzanine Loan Agreement in an amount equal to Lender’s Allocation (as defined in the Mezzanine Loan Agreement) of the Debt Yield Deficiency (the “Mezzanine Borrower DY Deficiency Reserve”); provided, further that in the event the foregoing Debt Yield requirement set forth in this clause (v) is not satisfied and the release of the Release Property is in connection with an arms-length transaction to a third-party Person which is not an Affiliate of Borrower, Borrower shall be permitted to release such Release Property from the Lien of the Mortgage and the related Loan Documents upon the payment to Administrative Agent for the account of Lender of an amount (the “Low Debt Yield Release Amount”) equal to the lesser of (I) Lender’s Allocation of one hundred percent (100%) of the Net Sales Proceeds derived from the sale of the Release Property and (II) the greater of (x) the applicable Release Amount for the Release Property and (y) an amount necessary to, after giving effect to such release, satisfy the Debt Yield requirement set forth in this clause (v) (the lesser of (I) and (II), the “Alternate Release Price”). For the purpose of calculating the Debt Yield for this Section 2.6.1 only, (A) Borrower may elect to deliver a Letter of Credit to Administrative Agent as additional collateral for the Loan to be counted against the Outstanding Loan Amount on a dollar for dollar basis in the calculation of the Debt Yield and (B) if the release is scheduled to occur before the first Debt Yield Determination Date occurring hereunder, the Debt Yield shall be deemed to equal the Closing Date Debt Yield. The Debt Yield Deficiency (if any) shall be calculated on a quarterly basis on each Debt Yield Determination Date and on such other date as may be requested by Borrower. If, as of any such date, the amounts on deposit in (i) the Borrower DY Deficiency Reserve exceed Xxxxxx’s Allocation of the then current Debt Yield Deficiency, or (ii) the Mezzanine Borrower DY Deficiency Reserve exceed Lender’s Allocation (as defined in the Mezzanine Loan) of the then current Debt Yield Deficiency, the amount of such excess shall be distributed to the Borrower and Mezzanine Borrower, respectively. For the avoidance of doubt, (1) amounts on deposit in the Borrower DY Deficiency Reserve shall not be applied by Administrative Agent for the account of Lender to satisfy any portion of the Debt other than during the continuance of an Event of Default, and (2) amounts on deposit in the Mezzanine Borrower DY Deficiency Reserve shall not be applied by Mezzanine Lender to satisfy any portion of the Mezzanine Loan other than during the continuance of a Mezzanine Loan Default. Upon request from Administrative Agent, Xxxxxxxx shall deliver to Administrative Agent Borrower’s calculation of the applicable Release Amount, the Release Debt Yield, and, if applicable, the Low Debt Yield Release Amount and Net Sales Proceeds;

(vi)

Borrower shall have paid or reimbursed Administrative Agent for all reasonable out‑of‑pocket costs and expenses actually incurred by Administrative Agent (including, without limitation, reasonable actually incurred attorneys’ fees and disbursements; provided such attorneys’ fees shall not exceed (x) $5,000.00 in the aggregate with respect to the coordinated release (simultaneously or on or about the same date) of between one (1) and four (4) Individual Properties and (y) $10,000.00 in the aggregate with respect to the coordinated release (simultaneously or on or about the same date) of five (5) or more Individual Properties) and Borrower shall have paid all third-party fees, costs and expenses actually incurred in connection with any such release, including but not limited to, (A) the current and customary fee being assessed by such Administrative Agent to effect such release, which fee shall not exceed (x) $2,000.00 in the aggregate with respect to the coordinated release (simultaneously or on or about the same date) of between one (1) and four (4) Individual Properties and (y) $10,000.00 in the aggregate with respect to the coordinated release (simultaneously or on or about the same date) of five (5) or more Individual Properties; and (B) any other charges incurred in connection with the release of any Liens, including the payment of all recording charges, filing fees, taxes or other similar expenses incurred in the reasonable judgment of the Administrative Agent in order to effectuate the release;

(vii)

If any Mezzanine Loan is then outstanding, concurrently with the payment of the Release Amount (or, if applicable, the Alternate Release Price), the Mezzanine Borrower shall make a partial prepayment of the Mezzanine Loan equal to the Mezzanine Release Amount (or, if applicable, the Alternate Release Price (as defined in the Mezzanine Loan Agreement)) applicable to such Individual Property, together with any related interest, fees, prepayment premiums or other amounts payable as set forth in the applicable section of the Mezzanine Loan Agreement in connection with such prepayment;

(viii)

Intentionally omitted;

(ix)

Subsequent to such release, each Individual Borrower and each SPE Constituent Entity shall continue to be a Special Purpose Entity pursuant to, and in accordance with, Section 4.1.30 hereof; and

(x)

In connection with the release of an Individual Property only in accordance with this Section 2.6.1, to the extent that Borrower has used disbursements from the Excess Cash Flow Reserve Account pursuant to Section 7.5.2(a) (as opposed to a disbursement from the Excess Cash Flow Reserve Account (x) of amounts in excess of the Excess Cash Flow Deposit Cap, (y) in connection with Borrower delivering an Excess Cash Flow Guaranty or (z) following the termination of a Cash Sweep Period) to fund any Alterations on or to any Undeveloped Land or any Pre-Identified Release Parcel, such Undeveloped Land or Pre-Identified Release Parcel shall be simultaneously released with such related Individual Property adjacent or immediately proximate to such Undeveloped Land or Pre-Identified Release Parcel;

(b)

Intentionally omitted.

(c)

Notwithstanding anything to the contrary contained herein, Borrower shall have the right to cause the release of any Individual Property in order to cure a Default, Event of Default, Default (as defined in the Mezzanine Loan Agreement) or Mezzanine Loan Default (each, a “Release Default”) related to an Individual Property provided that (i) either (x) prior to releasing such Individual Property, Borrower demonstrates to Administrative Agent that, to the extent such Release Default is curable, it has in good faith pursued a cure of such Release Default (which efforts shall not require any capital contributions to be made to Borrower or Mezzanine Borrower (if any) or include any obligations of Borrower, Mezzanine Borrower (if any) or Guarantor to use any operating income or Rents from any Property other than the Individual Property that is the subject of the Release Default to effectuate such cure), or (y) such Release Default related to an environmental condition at the Individual Property and (ii) such Release Default was not caused by (or at the direction of) Borrower or an Affiliate thereof in bad faith to circumvent the requirements of this Section 2.6.1 (a “Default Release”). In connection with any Default Release, Borrower shall be required to satisfy the conditions set forth in this Section 2.6.1, except that (I) Borrower shall not be required to satisfy the condition set forth in Section 2.6.1(a)(ii) to the extent any such Release Default relates to the Individual Property that is the subject of the Default Release and (II) Borrower shall not be required to satisfy the condition set forth in Section 2.6.1(a)(v) and provided, further, that with respect to any transfer of the Individual Property related to such Default Release to an Affiliate of Borrower, Borrower provides an Additional Insolvency Opinion addressing such transfer to an Affiliate. Any prepayment of the Loan in connection with a Default Release shall be deemed a voluntary prepayment, and shall be subject to satisfaction of the conditions set forth in Section 2.4.1(a) (other than the requirement to provide ten (10) days prior written notice).

(d)

Intentionally Omitted.

(e)

Intentionally Omitted.

(f)

In connection with any release or cancellation under this Section 2.6, in the event that such release would result in the release of all Individual Properties owned by an Individual Borrower (each an “Unencumbered Borrower”), such Unencumbered Borrower shall be automatically released (provided so long as there is only one (1) Borrower hereunder, that the Debt has been paid in full) by Administrative Agent and Lender from the obligations of the Loan Documents, except with respect to those obligations and liabilities which expressly survive the repayment of the Loan pursuant to any Loan Document and shall no longer be a Borrower for the purposes of this Agreement, in each case, without the need for further action or the execution of any documents. In connection with a release or cancellation of each Unencumbered Borrower, Administrative Agent agrees to deliver (i) a UCC-3 financing statement termination or amendment releasing Administrative Agent’s security interest in the collateral pledged to Administrative Agent relating to each Unencumbered Borrower and (ii) instruments executed by Administrative Agent and Lender, as applicable, reasonably necessary to evidence the release or cancellation of each Unencumbered Borrower from its obligations under the Loan Documents. Without limiting the foregoing, in the event that (i) an Unencumbered Borrower is the sole counterparty to the Interest Rate Protection Agreement and/or the Assignment of Interest Rate Protection Agreement or (ii) the Cash Management Account are in the name of an Unencumbered Borrower (clauses (i) and (ii), the “Single Borrower Documents”), the release of such Unencumbered Borrower shall additionally be conditioned upon Administrative Agent’s receipt of evidence reasonably acceptable to Administrative Agent that a remaining Borrower shall have assumed all of the obligations of such Unencumbered Borrower under the Single Borrower Documents. All reasonable costs and expenses incurred by Administrative Agent and/or Lender in connection with such release shall be paid by Borrower.

(g)

Intentionally omitted.

(h)

Any Release Default or Event of Default continuing hereunder with respect to an Individual Property will be deemed cured and no longer continuing upon the release of such Individual Property in accordance with the terms of this Section 2.6.1.

2.6.2

Releases of Release Parcels/Rights. Each of Administrative Agent and Xxxxxx agrees that, upon the request of Xxxxxxxx, Borrower may obtain the release of (v) unimproved non-income producing land located at an Individual Property whether or not located on the same parcel as the improved portion of such Individual Property (including all undeveloped non-income producing land adjacent to the buildings located at the Properties), (w) land which does not generate material income and such income was not taken into account for purposes of the appraisals obtained in connection with the closing of the Loan (clauses (v) and (w), the “Undeveloped Land”), (x) any air rights, development rights, mineral rights or water rights relating to an Individual Property which are not necessary for the operation of the Individual Property (y) any land in which the value thereof and income generated thereby was not taken into account for purposes of the appraisals obtained in connection with the closing of the Loan and/or (z) the Pre-Identified Release Parcels (each a “Release Parcel/Rights”) so long as (1) such Release Parcel/Rights is not required to remain part of the collateral at the applicable Individual Property pursuant to the terms of any Leases at such Individual Property and (2) such Release Parcel/Rights is not necessary for use as parking (pursuant to Leases or applicable Legal Requirements or any material covenants, agreements, restrictions and encumbrances contained in any instrument of record) or access, ingress/egress and/or storage at such Individual Property (whether or not required pursuant to the terms of any applicable Leases) (unless, solely with respect to this clause (2), such Individual Property related to such Release Parcel/Rights can be reconfigured at de minimis cost, to provide for substitute parking, to the extent required pursuant to Leases or applicable Legal Requirements or any material covenants, agreements, restrictions and encumbrances contained in any instrument of record, access, ingress/egress and/or storage provided on the unimproved non-income producing land which is proposed to be released on such Individual Property remaining as collateral after giving effect to a release in accordance with the terms and conditions of this Section 2.6.2) and the release of Borrower’s obligations under the Loan Documents with respect to each such Release Parcel/Rights that are released from time to time as herein provided (other than those expressly stated to survive) without any requirements to pay any portion of any Allocated Loan Amount, Release Amount, prepayment fee, spread maintenance premium or otherwise upon the satisfaction of each of the following conditions (but not any other conditions):

(a)

Borrower shall deliver notice to Administrative Agent of the proposed release of such Release Parcel/Rights, which notice shall include the name of the proposed transferee, and no Event of Default shall be continuing on the date that the Release Parcel/Rights is released from the Lien of the Mortgage thereon;

(b)

Borrower shall submit to Administrative Agent, not less than ten (10) days prior to the date of such release, a release of Lien (and related Loan Documents) for such Release Parcel/Rights for execution by Administrative Agent. Such release shall be in a form reasonably satisfactory to a prudent lender and appropriate in each jurisdiction in which the Release Parcel/Rights in question is located;

(c)

If the Release Parcel/Rights is not already a legally subdivided parcel, then, to the extent applicable, as of or prior to the transfer and release of the Release Parcel/Rights in question, (i) each applicable municipal authority exercising jurisdiction over such Release Parcel/Rights shall have approved a lot-split ordinance or other applicable action under local law dividing the Release Parcel/Rights from the remainder of the affected Individual Property, which shall trigger issuance of a separate tax identification number for the Release Parcel/Rights in question (with the result that, upon the transfer and release of the Release Parcel/Rights in question, no part of the remaining affected Individual Property shall be part of a tax lot or zoning lot which includes any portion of such Release Parcel/Rights) or (ii) an application has been made under local law to the appropriate Governmental Authority for approval of a lot-split ordinance or other application action and for a separate tax identification number for the Release Parcel/Rights and the transferee and transferor Borrower shall have otherwise entered into a property tax allocation agreement which has the same economic effect of a tax lot subdivision, provided, that Lender shall reasonably cooperate with Borrower in obtaining the foregoing;

(d)

If the Release Parcel/Rights is not already a legally subdivided parcel, then, to the extent applicable, all Legal Requirements applicable to the Release Parcel/Rights in question necessary to accomplish the lot split shall have been fulfilled (other than those Legal Requirements that are required to be satisfied after the lot split) in all material respects, and all necessary variances, if any, shall have been obtained, and Borrower shall have delivered to Administrative Agent either (i) letters or other evidence from the appropriate municipal authorities confirming such compliance with laws or (ii) a zoning report, legal opinion or other evidence confirming such compliance with laws, in each case in substance reasonably satisfactory to Administrative Agent (provided that in each case with respect to Legal Requirements that are required to be satisfied after the lot split, Borrower shall deliver an Officer’s Certificate certifying that Borrower shall comply with such applicable Legal Requirements), provided, that Administrative Agent shall reasonably cooperate with Borrower in obtaining the foregoing;

(e)

If the Release Parcel/Rights is not already a legally subdivided parcel, as a result of the lot split, then, to the extent applicable, the remaining Individual Property (after the release of the Release Parcel/Rights in question from such Individual Property) with all easements appurtenant and other Permitted Encumbrances thereto will not be in violation of any PILOT Lease, and then applicable Legal Requirements or any material covenants, agreements, restrictions and encumbrances contained in any instrument of record and all necessary variances, if any, shall have been obtained and evidence thereof has been delivered to Administrative Agent which in form and substance is appropriate for the jurisdiction in which the applicable Release Parcel/Rights is located;

(f)

If reasonably necessary, appropriate reciprocal easement agreements for the benefit and burden of the remaining Individual Property and the Release Parcel/Rights in question regarding the use of common facilities of such parcels, including, but not limited to, roadways, parking areas, utilities and community facilities, in a form and substance that would be reasonably acceptable to an ordinary prudent lender and which easements will not materially adversely affect the remaining Individual Property, shall be declared and recorded, and the remaining Individual Property and the applicable Release Parcel/Rights shall be in compliance with all applicable covenants under all easements and property agreements contained in the Permitted Encumbrances for the Individual Property;

(g)

Subsequent to such release, each Individual Borrower and each SPE Constituent Entity shall continue to be a Special Purpose Entity pursuant to and in accordance with Section 4.1.30 hereof, provided that Borrower shall not be required to deliver a “bring-down” of the Insolvency Opinion or delivery of an Additional Insolvency Opinion;

(h)

Borrower shall have delivered an Officer’s Certificate to the effect that (i), to such officer’s knowledge after diligent inquiry, the conditions in subsections (a)-(g) hereof have occurred or shall occur concurrently with the transfer and release of the applicable Release Parcel/Rights, (ii) the release of the applicable Release Parcel/Rights will not impair or otherwise adversely affect the Liens, security interests and other rights of Administrative Agent or Lender under the Loan Documents other than the release of the same as to the applicable Release Parcel/Rights (and, to the extent applicable, if the Release Parcel/Rights are not already a legally subdivided parcel and there are Legal Requirements that are required to be satisfied after the lot split, that Borrower shall comply with such applicable Legal Requirements in all material respects) and (iii) Borrower has not used any disbursements from the Excess Cash Flow Reserve Account pursuant to Section 7.5.2(a) (as opposed to a disbursement from the Excess Cash Flow Reserve Account (x) of amounts in excess of the Excess Cash Flow Deposit Cap, (y) in connection with Borrower delivering an Excess Cash Flow Guaranty or (z) following the termination of a Cash Sweep Period) to fund Alterations on such Release Parcel/Rights;

(i)

Borrower shall have executed and delivered such other documents and instruments that are reasonably requested by Administrative Agent and typical for similar transactions;

(j)

If the Release Parcel/Rights is not already a legally subdivided parcel, then to the extent that any adjacent parcels to the Release Parcel/Rights (to the extent applicable) shall remain collateral for the Loan and the same were not separately described in the Survey delivered in connection with the closing of the Loan, Borrower shall have delivered a new Survey with legal descriptions for such remaining parcels that are collateral for the Loan;

(k)

If reasonably requested by Administrative Agent, Borrower shall have delivered to Administrative Agent an endorsement or comfort letter with regard to the Title Insurance Policy (to the extent available in the applicable state) solely with respect to the Individual Property being affected by the release of the Release Parcel/Rights that (i) insures the priority of the Mortgage is not affected, and (ii) to the extent commercially available at commercially reasonable rates in the applicable state, insures the rights and benefits of any new or amended reciprocal easement agreement affecting the Individual Property;

(l)

Administrative Agent shall have received reimbursement of all Administrative Agent’s reasonable out-of-pocket costs and expenses, reasonable counsel fees, expenses and disbursements actually incurred in connection with the release of the Release Parcel/Rights from the Lien of the related Mortgage and the review and approval of the documents and information required to be delivered in connection therewith. In addition, Xxxxxxxx shall have paid all third-party fees, costs and expenses incurred in connection with the release of the applicable Release Parcel/Rights, including but not limited to, any other charges incurred in connection with the release of any Liens, including the payment of all recording charges, filing fees, taxes or other similar expenses incurred in the reasonable judgment of Administrative Agent in order to effectuate the release;

(m)

Intentionally omitted; and

(n)

Borrower shall simultaneously with the release of the Release Parcel/Rights transfer title to (or ownership of) the Release Parcel/Rights to a Person other than Borrower.

Notwithstanding anything to the contrary in this Section 2.6.2 and for the avoidance of doubt, the provisions of this Section 2.6.2 shall not apply to the release of any Release Parcel/Rights that are being released in connection with the release of an Individual Property to which such Release Parcel/Rights is associated; provided, that for purposes of Section 2.6.1(e), the defined term Release Property shall be deemed to include such Release Parcel/Rights, in addition to the related Individual Property.

2.6.3

Release on Payment in Full. Upon payment in full of the Debt in accordance with the terms and provisions of the Note and this Agreement and the other Loan Documents, Administrative Agent shall, upon the written request and at the sole cost and expense (including Administrative Agent’s reasonable actually incurred attorneys’ fees and disbursements) of Borrower, release the Lien of the Mortgage and the other Loan Documents (except those that expressly survive such release) on each Individual Property, in each case not theretofore released.

2.6.4

Release of Reserve Funds. In connection with a release of a Release Property pursuant to this Agreement, Administrative Agent will return to Borrower (or, at Borrower’s election, credit against the amount of any prepayment required to be made by Borrower in connection with such release) a portion of the Reserve Funds (or permit Borrower to deposit reduced replacement Letters of Credit in lieu of any Letters of Credit delivered to Administrative Agent in lieu of such Reserve Funds in accordance with Section 7.10) equal to the amount (or reduced by the amount for a Letter of Credit), as determined by Administrative Agent in its reasonable discretion, that is allocable to such Release Property, but only to the extent the remaining amount in the applicable Reserve Accounts or the amount of such Letters of Credit with respect to all Individual Properties remaining subject to the Loan Documents are at least equal to the estimated amounts that Administrative Agent determines in its reasonable discretion is necessary to satisfy the current obligations for which such Reserve Accounts were established or Letters of Credit were deposited. Following the release of a Release Property in accordance with this Agreement, Administrative Agent shall adjust the other amounts thereafter required to be deposited by Borrower into the Reserve Accounts to reflect amounts required solely for the remaining Individual Properties after giving effect to such release.

2.6.5

Assignments of Mortgages. Upon the request of Borrower in connection with the release of any Release Property or in connection with a release pursuant to the provisions of this Agreement, Administrative Agent and Lender agree to cooperate, at Borrower’s sole cost and expense (including Administrative Agent and Xxxxxx’s reasonable actual out-of-pocket attorneys’ fees and disbursements), to provide an assignment of the Mortgage and/or assignment or partial assignment of the Note (which shall be executed and delivered by the applicable Lender) with respect to such Release Property without representation or warranty (other than that it is the holder of such Mortgage and/or Note and such Mortgage and/or Note is not presently assigned, pledged or otherwise encumbered) and without recourse in lieu of the release.

Section

2.7 Lockbox Account/Cash Management.

2.7.1

Lockbox Account. Borrower has established and, during the term of the Loan, shall maintain one or more segregated Eligible Accounts (collectively, the “Lockbox Account”) with Lockbox Bank titled as set forth in the applicable Lockbox Agreement and, which Lockbox Account is in trust for the Administrative Agent and shall be under the sole dominion and control of Administrative Agent to the extent set forth in the Lockbox Agreement. Borrower hereby grants to Administrative Agent for the benefit of Lenders a security interest in the Lockbox Account and all deposits at any time contained therein and the proceeds thereof and will take all actions necessary to maintain in favor of Administrative Agent a perfected security interest in the Lockbox Account, including, without limitation, filing UCC‑1 financing statements and continuations thereof. Such financing statements may describe as the collateral covered thereby “all assets of the debtor, whether now owned or hereafter acquired” or words to that effect. Administrative Agent shall have the sole right to make withdrawals from the Lockbox Account in accordance with and subject to the Lockbox Agreement. All costs and expenses of establishing and maintaining the Lockbox Account shall be paid by Xxxxxxxx. All monies now or hereafter deposited into the Lockbox Account shall be deemed additional security for the Debt.

(b)

Borrower shall, and shall cause Manager on behalf of Xxxxxxxx, respectively, to, deposit all amounts received by Borrower or Manager constituting Rents (other than security deposits unless and until the same are forfeited by the applicable Tenant) from the Properties into the Lockbox Account within five (5) Business Days after receipt thereof. For the avoidance of doubt, (x) Borrower shall not be required to cause or direct Tenants to deposit Rents directly into the Lockbox Account and (y) (A) capital contributions of the owners of Borrower and (B) payment of Required REIT Distributions during an Event of Default from equity or sources other than Excess Cash Flow and/or the Properties shall not constitute Rents.

(c)

Borrower has obtained from Lockbox Bank its agreement to transfer to the Cash Management Account upon notice from Lender to Lockbox Bank of a Cash Sweep Period (the “Cash Sweep Period Instructions”), all amounts on deposit in the Lockbox Account (other than a reasonable peg balance and the reasonable fees of the Lockbox Bank as more particularly described in the Lockbox Agreement) in accordance with the Cash Sweep Period Instructions, which Cash Sweep Period Instructions may require up to two (2) transfers per week to the Cash Management Account. Upon a Cash Sweep Cure Date, Administrative Agent shall, within three (3) Business Days, provide notice to the Lockbox Bank that the Cash Sweep Period Instructions are no longer in effect and that all amounts on deposit in the Lockbox Account shall be transferred by the Lockbox Bank to an account designated by Borrower (together with any other account of Borrower (other than the Lockbox Account) each, a “Non-Pledged Account”). In the event a Cash Sweep Period is not in effect, all amounts on deposit in the Lockbox Account shall be transferred by the applicable Lockbox Bank to one or more Non-Pledged Accounts. Notwithstanding anything to the contrary contained herein, any amounts contained in the Non-Pledged Accounts shall not be collateral for the Loan or subject to any restrictions or limitations set forth in the Loan Documents.

(d)

During the continuance of an Event of Default, Administrative Agent may, in addition to any and all other rights and remedies available to Administrative Agent, apply any sums then present in the Lockbox Account to the payment of the Debt in such order and priority as Administrative Agent shall determine in its sole discretion; provided, however, unless a Priority Payment Cessation Event has occurred and is continuing, the Administrative Agent shall continue to make Priority Waterfall Payments to the extent of funds available therefore in the Lockbox Account.

(e)

Borrower shall not further pledge, assign or grant any security interest in the Lockbox Account or the monies deposited therein or permit any Lien to attach thereto, or any levy to be made thereon, or any UCC-1 financing statement, except those naming Administrative Agent as the secured party, to be filed with respect thereto.

(f)

Borrower shall indemnify Administrative Agent and hold Administrative Agent harmless from and against any and all Losses arising from or in any way connected with the Lockbox Account and/or the Lockbox Agreement (unless arising from the gross negligence or willful misconduct of Administrative Agent) or the performance of the obligations for which the Lockbox Account was established.

(g)

Notwithstanding anything to the contrary in this Agreement or the other Loan Documents and so long as a Cash Sweep Period does not then exist, Borrower shall be permitted, without the consent of Administrative Agent, but with not less than ten (10) Business Days’ prior notice to, Lender, to close any individual Lockbox Account (provided that such notice period may be shortened or such notice period may be provided concurrently in the event the Lockbox Bank ceases to be an Eligible Institution (or Borrower reasonably believes such cessation is reasonably likely to occur)) (collectively, a “Lockbox Consolidation”). Administrative Agent shall, at the request of Xxxxxxxx, direct the Lockbox Bank to terminate the Lockbox Agreement in connection with a Lockbox Consolidation with respect to the applicable Lockbox Account to the extent required by Lockbox Bank, and otherwise reasonably cooperate with Borrower (at Borrower’s sole cost and expense) in order to effectuate any Lockbox Consolidation.

(h)

Notwithstanding anything to the contrary contained herein, Borrower shall have the right, without the consent of Lender, to establish and maintain during the term of the Loan one or more additional Lockbox Accounts with one or more Lockbox Banks (each such new Lockbox Account, a “New Lockbox Account”) provided that each such New Lockbox Accounts satisfy the requirements of this Section 2.7.1. Upon the establishment of a New Lockbox Account, such New Lockbox Account shall be considered a Lockbox Account pursuant to the terms of this Agreement.

2.7.2

Cash Management Account. (a) Upon the occurrence and during the continuance of a Cash Sweep Period, Representative Xxxxxxxx shall establish and maintain a segregated Eligible Account (the “Cash Management Account”) to be held by Cash Management Bank in trust and for the benefit of Administrative Agent for the benefit of Lenders, which Cash Management Account shall be under the sole dominion and control of Administrative Agent. The Cash Management Account shall be titled “AIR Mezzo, LLC as Borrower fbo Xxxxx Fargo Bank, National Association”. Representative Xxxxxxxx hereby grants to Administrative Agent for the benefit of Lender a security interest in the Cash Management Account and all deposits at any time contained therein and the proceeds thereof and will take all actions necessary to maintain in favor of Administrative Agent a perfected security interest in the Cash Management Account, including, without limitation, filing UCC-1 financing statements and continuations thereof upon Administrative Agent’s request therefor. Such financing statements may describe as the collateral covered thereby “all assets of the debtor, whether now owned or hereafter acquired” or words to that effect. Borrower will not in any way alter or modify the Cash Management Account without the prior written consent of Administrative Agent, and Xxxxxxxx will notify Administrative Agent of the account number of the Cash Management Account. Administrative Agent shall have the sole right to make withdrawals from the Cash Management Account and all costs and expenses for establishing and maintaining the Cash Management Account shall be paid by Xxxxxxxx.

(b)

Funds on deposit in the Lockbox Account shall not be commingled with other monies held by Borrower, Manager or Lockbox Bank.

(c)

During the continuance of an Event of Default, all funds on deposit in the Cash Management Account shall be applied by Administrative Agent to the payment of the Debt and/or for any other purpose for which such funds may be applied by Administrative Agent pursuant to the provisions of any Loan Document, in such order and priority as Administrative Agent shall determine, in its sole discretion, provided, however, the Administrative Agent shall continue to make Priority Waterfall Payments to the extent of funds available therefore in the Cash Management Account so long as no Priority Payment Cessation Event has occurred and is continuing.

(d)

The insufficiency of funds on deposit in the Cash Management Account shall not relieve Borrower from the obligation to make any payments, as and when due pursuant to this Agreement and the other Loan Documents, and such obligations shall be separate and independent, and not conditioned on any event or circumstance whatsoever.

(e)

Xxxxxxxx hereby agrees to cooperate with Administrative Agent in connection with any amendment to the Cash Management Agreement that Administrative Agent deems necessary for the purpose of establishing additional sub-accounts in connection with any payments otherwise required under this Agreement and the other Loan Documents.

(f)

Notwithstanding anything contained herein or in the other Loan Documents to the contrary, Administrative Agent agrees that, notwithstanding the existence of an Event of Default, prior to a Priority Payment Cessation Event, Administrative Agent shall apply amounts on deposit in the Cash Management Account to payment of the Priority Waterfall Payments. Any amounts remaining in the Cash Management Account after payment of the Priority Waterfall Payments shall be deposited in the Excess Cash Flow Reserve Account and applied in accordance with Section 7.5 hereof.

2.7.3

Payments Received under the Cash Management Agreement. Notwithstanding anything to the contrary contained in this Agreement or the other Loan Documents, and provided no Event of Default has occurred and is continuing, Borrower’s obligations with respect to the payment of the Monthly Debt Service Payment Amount and amounts required to be deposited into the Reserve Accounts, if any, shall be deemed satisfied to the extent sufficient amounts are deposited in the Cash Management Account to satisfy such obligations pursuant to this Agreement and the Cash Management Agreement on the dates that each such payment is required, regardless of whether any of such amounts are so applied by Administrative Agent.

2.7.4

Distributions to Mezzanine Borrower. For so long as a Mezzanine Loan is outstanding, all transfers of funds on deposit in the Cash Management Account to or for the benefit of the Mezzanine Lender, pursuant to this Agreement, the Cash Management Agreement or any of the other Loan Documents or Mezzanine Loan Documents are intended by Borrower, the Mezzanine Borrower and the Mezzanine Lender to constitute, and shall constitute, distributions from Borrower to the Mezzanine Borrower and from one Mezzanine Borrower to another Mezzanine Borrower, as applicable. No provision of the Loan Documents or the Mezzanine Loan Documents shall create a debtor-creditor relationship between Borrower and any Mezzanine Lender.

Section

2.8 Extension of the Initial Maturity Date. Borrower shall have the option to extend the Initial Maturity Date of the Loan for two (2) successive terms (each such option, an “Extension Option” and each such successive term, an “Extension Term”) of one (1) year each (the Initial Maturity Date following the exercise of each such option is hereinafter the “Extended Maturity Date”) upon satisfaction of the following terms and conditions:

(a)

no Event of Default shall have occurred and be continuing at the commencement of the applicable Extension Term;

(b)

Borrower shall provide Administrative Agent with written revocable notice of its election to extend the Maturity Date as aforesaid not later than ten (10) Business Days and not earlier than one hundred twenty (120) days prior to the then applicable Maturity Date (provided that if Borrower shall subsequently revoke such notice, Borrower shall be responsible for Administrative Agent’s reasonable, out-of-pocket costs and expenses incurred in connection with processing and documenting the applicable Extension Option);

(c)

if required pursuant to the terms of Section 2.2.7 hereof, Borrower shall obtain and deliver to Administrative Agent on or prior to the first day of each Extension Term, one or more Interest Rate Protection Agreements, which shall be an Interest Rate Protection Agreement from an Acceptable Counterparty in a notional amount at least equal to the then Outstanding Loan Amount as of the commencement of such Extension Term, which Interest Rate Protection Agreement shall have a strike price based on the Applicable Index Rate equal to the Required Strike Price (or, if the Alternate Strike Price Condition has been satisfied, the Alternate Strike Price) and be effective commencing not later than the first date of such Extension Term (or, if the maturity date of the then-current Interest Rate Protection Agreement is a later date, such later date) and shall have a maturity date not earlier than the applicable Extended Maturity Date after giving effect to the option then being exercised; and

(d)

if a Mezzanine Loan is then outstanding, the Mezzanine Loan shall have been repaid or extended (or will be contemporaneously extended) through a date not earlier than the applicable Extended Maturity Date.

Borrower acknowledges and agrees that in the event Xxxxxxxx delivers a notice exercising an Extension Option (which notice shall be revocable by Xxxxxxxx), Borrower shall reimburse Administrative Agent, if any, for reasonable third party costs and expenses actually incurred in connection with processing and documenting the Extension Option, including, without limitation, reasonable attorneys’ fees and expenses actually incurred (provided (i) such reimbursement shall not be a condition precedent to the effectiveness of the exercise of the applicable Extension Option and may be made by Borrower following the exercise of such Extension Option and (ii) such attorneys’ fees and expenses shall not exceed $2,500), regardless of whether the Extension Option is successfully exercised or not. Notwithstanding anything to the contrary herein, Borrower shall not be required to execute any extension letters, extension agreements or other similar documentation in order to exercise an Extension Option or as a condition to the effectiveness of the extension of the Maturity Date and in no event may Administrative Agent or any Lender charge a fee in connection with the Borrower’s exercise of any Extension Option.

Section

2.9 Withholding Taxes.

(a)

Any and all payments by or on account of any obligation of any Loan Party in respect of this Agreement or any other Loan Document to which any Loan Party is a party shall be made free and clear of, and without deduction or withholding for or on account of, any and all present or future taxes, levies, imposts, deductions, charges or withholdings, and any penalties, interest and additions to tax with respect thereto, whether now or hereafter imposed, levied, collected, withheld or assessed by any taxation authority or other Governmental Authority (collectively, “Section 2.9 Taxes”), unless required under any applicable law. If any Loan Party shall be required under any applicable law to deduct or withhold any Section 2.9 Taxes from or in respect of any sum payable under or in respect of this Agreement or any of the other Loan Documents to a Lender, (i) such Loan Party shall make all such deductions and withholdings in respect of Section 2.9 Taxes, (ii) such Loan Party shall pay the full amount deducted or withheld in respect of Section 2.9 Taxes to the relevant taxation authority or other Governmental Authority in accordance with the applicable law, and (iii) if such Section 2.9 Taxes are Non-Excluded Taxes, the sum payable by such Loan Party shall be increased as may be necessary so that after such Loan Party has made all required deductions and withholdings (including deductions and withholdings applicable to additional sums payable under this Section 2.9) the applicable Lender, as the case may be, receives an amount equal to the sum it would have received had no such deductions or withholdings been made in respect of Non-Excluded Taxes.

(b)

In addition, Borrower hereby agrees to timely pay any present or future stamp, recording, documentary, excise, intangible, property or similar taxes, charges or levies that arise from any payment made under this Agreement or any other Loan Document or from the execution, delivery or registration of, any performance under, or otherwise with respect to, this Agreement, the Notes or any other Loan Document, other than Excluded Taxes or taxes or charges imposed with respect to an assignment by a Lender or resulting from a Lender’s funding of any Loan with plan assets subject to ERISA, Section 4975 of the Code or any Applicable Similar Law (collectively, “Other Taxes”) to the relevant taxing authority or other Governmental Authority in accordance with applicable law.

(c)

Each Loan Party hereby agrees to indemnify each Lender for, and to hold it harmless against, the full amount of Non-Excluded Taxes paid or payable by such Lender in connection with this Agreement or any other Loan Document and any reasonable expenses arising therefrom or with respect thereto, without duplication of any amounts paid by any Loan Party under Section 2.9(a). The indemnity by any Loan Party provided for in this Section 2.9(c) shall apply and be made whether or not the Non-Excluded Taxes for which indemnification hereunder is sought have been correctly or legally asserted. Amounts payable by any Loan Party under the indemnity set forth in this Section 2.9(c) shall be paid within ten (10) days from the date on which the applicable Lender makes written demand therefor. Such written demand shall be conclusive of the amount so paid or payable absent manifest error.

(d)

As soon as practical after the date of any payment of Non-Excluded Taxes to a taxing authority or other Governmental Authority, any Loan Party (or any Person making such payment on behalf of any Loan Party) shall furnish to the applicable Lender, the original or a certified copy of the original official receipt issued by such taxing authority or other Governmental Authority evidencing payment thereof, or other evidence of such payment reasonably satisfactory to such Lender.

(e)

If any Lender is entitled to an exemption from, or reduction of, any applicable withholding tax with respect to any payments under any Loan Document, such Lender shall deliver to the relevant Loan Party, at the time or times prescribed by applicable law or reasonably requested by the applicable Loan Party, such properly completed and executed documentation prescribed by applicable law and reasonably requested by any Loan Party as will permit such payments to be made without, or at a reduced rate of, withholding. In addition, such Lender, if reasonably requested by any Loan Party, shall deliver such other documentation prescribed by law or reasonably requested by any Loan Party as will enable any Loan Party to determine whether or not such Lender is subject to any withholding (including backup withholding) or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Sections 2.9(e)(i) through (iii)) shall not be required if in such Xxxxxx’s judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense (or, in the case of a change in a law, any incremental material unreimbursed cost or expense) or would materially prejudice the legal or commercial position of such Lender. Upon the reasonable request of any Loan Party, such Lender shall update any form or certification previously delivered pursuant to this Section 2.9(e). If any form or certification previously delivered pursuant to this Section expires or becomes obsolete or inaccurate in any respect, each Lender shall promptly (and in any event within ten (10) days after such expiration, obsolescence or inaccuracy) notify the applicable Loan Party in writing of such expiration, obsolescence or inaccuracy and update the form or certification if it is legally eligible to do so. Without limiting the generality of the foregoing:

(i)

Each Lender (including for avoidance of doubt any participant, assignee or successor) that is not a “United States person” within the meaning of Section 7701(a)(30) of the Code (“Non-U.S. Lender”) shall, if it is legally eligible to do so, deliver or cause to be delivered to the relevant Loan Party the following properly completed and duly executed documents:

(A)

in the case of a Non-U.S. Lender claiming the benefits of an income tax treaty to which the United States is a party, (x) with respect to payments of interest under any Loan Document, a complete and executed U.S. Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable (or any successor forms thereto), establishing an exemption from, or reduction of, U.S. federal withholding tax pursuant to the “interest” article of an applicable tax treaty, including all appropriate attachments or (y) with respect to any other applicable payments under any Loan Document, a complete and executed U.S. Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable (or any successor forms thereto), establishing an exemption from, or reduction of, U.S. federal withholding tax pursuant to the “business profits” or “other income” article of such tax treaty; or

(B)

a complete and executed U.S. Internal Revenue Service Form W-8ECI (or any successor form thereto); or

(C)

in the case of a Non-U.S. Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code both, (x) a complete and executed U.S. Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable (or any successor form thereto) and (y) a certificate substantially in the form of Schedule 2.9 (a “Section 2.9 Certificate”) to the effect that Non-U.S. Lender is not (a) a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (b) a “10 percent shareholder” of any Loan Party within the meaning of Section 881(c)(3)(B) of the Code (c) a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code or (d) conducting a trade or business in the United States with which the relevant interest payments are effectively connected; or

(D)

in the case of a Non-U.S. Lender that is not the beneficial owner of payments made under any Loan Document (including a partnership, an entity disregarded for U.S. federal income tax purposes, or a participating Lender), (x) a complete and executed U.S. Internal Revenue Service Form W-8IMY (or any successor form thereto) (including all required documents and attachments) on behalf of itself and (y) with respect to each of its beneficial owners and the beneficial owners of such beneficial owners looking through chains of owners to individuals or entities that are not flow-through entities (such as corporations) for U.S. federal income tax purposes (all such owners, a “beneficial owner”), the documents that would be required by these clauses (A), (B), (C), and (D) or Section 2.9(e)(ii) with respect to each such beneficial owner if such beneficial owner were a Lender, provided, however, that no such documents will be required with respect to a beneficial owner to the extent the actual Lender is determined to be in compliance with the requirements for certification on behalf of its beneficial owner as may be provided in applicable U.S. Treasury regulations, or the requirements of this clause (D) are otherwise determined to be unnecessary, all such determinations under this clause (D) to be made in the sole discretion of Loan Party; provided further, that if the Non-U.S. Lender is a partnership and one or more of its partners are claiming the exemption for portfolio interest under Section 881(c) of the Code, such Lender may provide a Section 2.9 Certificate on behalf of such partners; or

(E)

any other form prescribed by law as a basis for claiming exemption from, or a reduction of, U.S. federal withholding tax together with such supplementary documentation necessary to enable any Loan Party to determine the amount of tax (if any) required by law to be withheld.

(ii)

If a Lender (including for avoidance of doubt any participant, assignee or successor) is a “United States person” within the meaning of Section 7701(a)(30) of the Code shall, and if it is legally eligible to do so, such Lender shall deliver or cause to be delivered to any applicable Loan Party a properly completed and duly executed U.S. Internal Revenue Service Form W-9 (or any successor forms thereto) certifying that such Lender is exempt from U.S. federal backup withholding tax.

(iii)

If a payment made to any Lender under any Loan Document would be subject to U.S. federal withholding tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to any applicable Loan Party, at the time or times prescribed by law and at such time or times reasonably requested by Loan Party, such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by Loan Party as may be necessary for Loan Party to comply with its obligations under FATCA, to determine that such Lender has or has not complied with such Xxxxxx’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this Section 2.9(e)(iii), “FATCA” shall include any amendments made to FATCA after the Closing Date.

(f)

Each Lender hereby agrees that, upon the occurrence of any circumstances entitling a Lender to additional amounts pursuant to this Section 2.9, such Lender, at the request of Loan Party, shall use reasonable efforts (consistent with its internal policy and legal and regulatory restrictions), to designate a different applicable lending office for the funding or booking of its Loan hereunder, if, in the reasonable judgment of such Lender, such designation (i) would eliminate or reduce amounts payable pursuant to Section 2.9 in the future, and (ii) would not subject such Lender to any material unreimbursed cost or expense and would not otherwise be materially disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation.

(g)

If any Lender is entitled to additional compensation (x) under any of the foregoing provisions of this Section 2.9 and shall have failed to designate a different applicable lending office as provided in subsection (f) of this Section 2.9, or (y) pursuant to the terms of Section 2.2.5(f) or (g), then, so long as no Event of Default shall have occurred and be continuing, the applicable Loan Party may cause such Lender to (and, if the Loan Party so demands, such Lender shall) assign all of its rights and obligations under this Agreement to one or more other Persons identified by the Loan Party and reasonably acceptable to the Administrative Agent provided that (i) such Lender shall have received payment of an amount equal to the outstanding principal of its Loan, accrued interest thereon, accrued fees and all other amounts payable to such Lender hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other amounts) and (ii) in the case of any such assignment resulting from a claim for additional compensation pursuant to clauses (x) and/or (y) above, such assignment will result in a reduction in such compensation or payments; provided further, that if, upon such demand by the applicable Loan Party, such Lender elects to waive its request for additional compensation pursuant to this Section 2.9 or pursuant to Sections 2.2.5(f) or (g), as applicable, the demand by the Loan Party for such Lender to so assign all of its rights and obligations under this Agreement shall thereupon be deemed withdrawn. Nothing in subsection (f) of this Section 2.9 or this Section 2.9(g) shall affect or postpone any of the rights of Lender or any of the obligations of any Loan Party under any of the foregoing provisions of this Section 2.9 in any manner. A Lender shall not be required to make any such assignment and delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling Borrower to require such assignment and delegation cease to apply.

(h)

If a Lender determines that it has received a refund of any Non-Excluded Taxes as to which it has been indemnified by a Loan Party or with respect to which a Loan Party has paid additional amounts pursuant to this Section 2.9, it shall pay over such refund to such Loan Party (but only to the extent of indemnity payments made, or additional amounts paid, by such Loan Party under this Section 2.9 with respect to the Non-Excluded Taxes giving rise to such refund), net of all out-of-pocket expenses of such Lender and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided, that such Loan Party, upon the request of such Xxxxxx, agrees to repay the amount paid over to such Loan Party to such Lender in the event such Lender is required to repay such refund to such Governmental Authority. This paragraph shall not be construed to require such Lender to make available its tax returns (or any other information relating to its taxes which it deems confidential) to any Loan Party or any other Person.

ARTICLE III

INTENTIONALLY OMITTED

ARTICLE IV

REPRESENTATIONS AND WARRANTIES

Section

4.1 Borrower Representations. Borrower represents and warrants as of the Closing Date, except with respect to any representations or warranty that is made as of a specific date, in which case it shall be as of such date, that:

4.1.1

Organization. Each Borrower and each SPE Constituent Entity has been duly organized and is validly existing and is in good standing with requisite power and authority to own or lease the applicable Individual Property and/or to transact the businesses in which it is now engaged. Each Borrower is duly qualified to do business and is in good standing in each jurisdiction where it is required to be so qualified in connection with its properties, businesses and operations. Each Borrower and each SPE Constituent Entity possesses all material rights, licenses, permits and authorizations, governmental or otherwise, necessary to entitle it to own or lease the applicable Individual Property and/or to transact the businesses in which it is now engaged, except to the extent the failure to possess such rights, licenses and permits would not reasonably be expected to materially and adversely affect Borrower or any Individual Property. Except as otherwise set forth in subsection (i) of the definition of “Special Purpose Entity”, the sole business of each Individual Borrower is the ownership, management, leasing and operation of the related Property. The ownership interests in Borrower are as set forth on the organizational chart attached hereto as Schedule 4.1.1.

4.1.2

Proceedings. Xxxxxxxx has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party. This Agreement and the other Loan Documents to which it is a party have been duly executed and delivered by or on behalf of Borrower and constitute legal, valid and binding obligations of Borrower enforceable against Borrower in accordance with their respective terms, subject only to applicable bankruptcy, insolvency and similar laws affecting rights of creditors generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).

4.1.3

No Conflicts. The execution, delivery and performance of this Agreement and the other Loan Documents by Borrower will not in any material respect conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any Lien (other than pursuant to the Loan Documents) upon any of the property or assets of Borrower pursuant to the terms of any indenture, mortgage, deed of trust, deed to secure debt, loan agreement, partnership agreement, management agreement or other material agreement or instrument to which Borrower is a party or, to Borrower’s knowledge, to which any of Borrower’s property or assets are subject (unless consents from all applicable parties thereto have been obtained), nor will such action result in any material violation of the provisions of any statute or any order, rule or regulation of any Governmental Authority having jurisdiction over Borrower or any of Borrower’s properties or assets, and any consent, approval, authorization, order, registration or qualification of or with any such Governmental Authority required for the execution, delivery and performance by Borrower of this Agreement or any other Loan Documents has been obtained and is in full force and effect.

4.1.4

Litigation. Except as set forth on Schedule 4.1.4, there are no actions, suits or proceedings at law or in equity by or before any Governmental Authority or other agency pending or, to Borrower’s knowledge, threatened against or affecting Borrower, any SPE Constituent Entity or any Individual Property, which actions, suits or proceedings, if determined against Borrower, any SPE Constituent Entity or any Individual Property, which would, in each case, reasonably be expected to have an Individual Material Adverse Effect on any Individual Property or an Aggregate Material Adverse Effect. Except as set forth on Schedule 4.1.4, there are no actions, suits or proceedings at law or in equity by or before any Governmental Authority or other agency that resulted in a final judgment against any Borrower or Guarantor that affects any Individual Property that has not been paid in full, or that otherwise materially impairs Guarantor’s ability to fulfill its obligations under the Guaranty.

4.1.5

Agreements. Borrower has no material financial obligation under any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which Borrower is a party or by which Borrower or the Properties is otherwise bound, other than (a) obligations incurred in the ordinary course of the operation of the Properties as permitted pursuant to clause (xxiii) of the definition of “Special Purpose Entity” set forth in Section 1.1 hereof and (b) Permitted Debt or obligations under the Loan Documents. Other than with respect to the Fremont Ground Lease, any PILOT Lease, Management Agreements, Leases, broker commissions and similar agreements relating to Leases, contracts relating to Alterations that are permitted without Xxxxxx’s consent pursuant to the terms hereof and the other Loan Documents and any documents disclosed in the Title Insurance Policies, and other than as set forth on Schedule 4.1.5, all agreements or other instruments to which Borrower is a party or, to Xxxxxxxx’s knowledge, to which the Individual Properties are subject, would not reasonably be expected to have an Aggregate Material Adverse Effect.

4.1.6

Title. Borrower has (a) good and insurable fee simple title to the real property comprising part of each Individual Property, and (b) good title to the balance of such Individual Property, and, as of the Closing Date, such title is free and clear of all Liens whatsoever except the Permitted Encumbrances, such other Liens as are permitted pursuant to the Loan Documents and the Liens created by the Loan Documents. The Permitted Encumbrances in the aggregate are not reasonably expected to have an Individual Material Adverse Effect on any Individual Property or an Aggregate Material Adverse Effect. Each Mortgage, when properly recorded in the appropriate records, together with any Uniform Commercial Code financing statements required to be filed in connection therewith, has or will create (a) a valid, perfected first-priority lien on the applicable Individual Property, which is subject only to Permitted Encumbrances and (b) perfected security interests in and to, and perfected collateral assignments of, all personalty (including the Leases) to the extent a security interest may be perfected therein by the recording of the Mortgage or the filing of a financing statement under the Uniform Commercial Code, all in accordance with the terms thereof, in each case, subject only to any applicable Permitted Encumbrances. Except for Permitted Encumbrances or as set forth in Schedule 4.1.6 or in the Title Insurance Policies, to Xxxxxxxx’s knowledge, there are no claims for payment for work, labor or materials affecting the Properties which are or might become a Lien prior to, or of equal priority with, the Liens created by the Loan Documents, and as to which Administrative Agent has not otherwise received affirmative insurance in the applicable Title Insurance Policy (in form and substance satisfactory to Administrative Agent in all respects) or for which the Title Company has received adequate protections to remove such items as exceptions in the Title Insurance Policy and such item was so removed.

4.1.7

Solvency. Xxxxxxxx has (a) not entered into the transaction contemplated by this Agreement nor executed any Loan Document with the actual intent to hinder, delay or defraud any creditor, and (b) received reasonably equivalent value in exchange for its obligations under the Loan Documents. After giving effect to the Loan (i) the fair saleable value of Borrower’s assets exceeds Borrower’s total liabilities, including, without limitation, subordinated, unliquidated, disputed and contingent liabilities, (ii) the fair saleable value of Borrower’s assets is greater than Borrower’s probable liabilities, including the maximum amount of its contingent liabilities on its debts as such debts become absolute and matured, and (iii) Borrower’s assets do not constitute unreasonably small capital to carry out its business as conducted or as proposed to be conducted. Borrower does not intend to, and does not believe that it will, incur debt and liabilities (including contingent liabilities and other commitments) beyond its ability to pay such debt and liabilities as they mature (taking into account the timing and amounts of cash to be received by Borrower and the amounts to be payable on or in respect of obligations of Borrower). No petition in bankruptcy has been filed against Borrower, any SPE Constituent Entity or Guarantor in the last seven (7) years, and none of Borrower, any SPE Constituent Entity or Guarantor has, in the last seven (7) years, made an assignment for the benefit of creditors or taken advantage of any insolvency act for the benefit of debtors. None of Borrower, any SPE Constituent Entity or Guarantor is contemplating either the filing of a petition by it under any state or federal bankruptcy or insolvency laws or the liquidation of all or a major portion of such Person’s assets or property, and to Borrower’s knowledge no Person is contemplating the filing of any such petition against it or against any SPE Constituent Entity or Guarantor.

4.1.8

Intentionally Omitted.

4.1.9

No Plan Assets. Except as would not, individually or in the aggregate result in an Aggregate Material Adverse Effect, neither Borrower nor Guarantor sponsors or, is obligated to contribute to, an “employee benefit plan,” as defined in Section 3(3) of ERISA, subject to Title IV of ERISA or Section 412 of the Code. Neither Borrower nor Guarantor is itself an “employee benefit plan” subject to Title I of ERISA or Section 4975 of the Code, and none of the assets of Borrower or Guarantor constitutes “plan assets” of one or more such plans within the meaning of 29 C.F.R. Section 2510.3-101 as modified by Section 3(42) of ERISA, as amended from time to time (“Plan Assets”) and none of the assets of Borrower or Guarantor will constitute Plan Assets if such condition could subject the Lender to any tax or penalty under Section 4975 of the Code or Section 502(i) of ERISA. In addition, (a) neither Borrower nor Guarantor is a “governmental plan” within the meaning of Section 3(32) of ERISA, and (b) based upon and subject to the Lender’s and Purchaser’s representation and covenant in Section 4.3(a) and Section 4.3(b) (as such representation and covenant relate to Applicable Similar Law), transactions by or with Borrower or Guarantor are not, and will not be during the term of the Loan, subject to any state or other statute which is substantially similar to the prohibited transaction provisions of Section 406 of ERISA or Section 4975 of the Code (“Applicable Similar Law”) applicable to Borrower or Guarantor and which prohibit or otherwise restrict the transactions contemplated by this Agreement, including but not limited to the exercise by Administrative Agent or any Lender of any of its rights under the Loan Documents.

4.1.10

Compliance. Except as set forth in the Zoning Reports and property condition reports delivered in connection with the origination of the Loan for each Individual Property delivered to Administrative Agent on or before the Closing Date or on Schedule 4.1.22, Borrower and the Properties (including the respective use thereof) comply in all material respects with all applicable Legal Requirements, including, without limitation, building and zoning ordinances and codes and parking requirements and ratios, except where the failure to comply with such Legal Requirements would not have, or reasonably be expected to have, an Individual Material Adverse Effect on any Individual Property. Borrower is not in default or violation of any order, writ, injunction, decree or demand of any Governmental Authority which default or violation would have, or be reasonably expected to have an Individual Material Adverse Effect on any Individual Property or an Aggregate Material Adverse Effect. There has not been committed by Borrower or, to Xxxxxxxx’s knowledge, by any other Person in occupancy of or involved with the operation or use of the Properties any act or omission affording the federal government or any other Governmental Authority the right of forfeiture as against any Individual Property or any part thereof or any monies paid in performance of Borrower’s obligations under any of the Loan Documents.

4.1.11

Financial Information. All financial data (including, without limitation, the statements of cash flow and income and operating expense) that have been delivered to Administrative Agent by or at the direction of Borrower or its Affiliates in connection with the Loan as of the date delivered (a) were true, complete and correct in all material respects (or, to the extent that any such financial data was incorrect in any material respect as of the date delivered, the same have been corrected by financial data subsequently delivered to Administrative Agent prior to the Closing Date), (b) accurately represented the financial condition of Borrower and the Properties, as applicable, in all material respects, as of the date of such reports, and (c) to the extent prepared or audited by an independent certified public accounting firm and described therein as having been prepared in accordance with Approved Accounting Principles, were prepared in accordance with Approved Accounting Principles throughout the periods covered, except as disclosed therein. The foregoing representation shall not apply to any such financial data that constitutes projections, provided that Borrower represents and warrants that such projections were made in good faith and that Borrower has no reason to believe that such projections are materially inaccurate. Except as set forth in such financial data and except for Permitted Encumbrances and Permitted Debt, none of Borrower or Guarantor have any contingent liabilities, liabilities for taxes, unusual forward or long-term commitments or unrealized or anticipated losses from any unfavorable commitments that are known to Borrower and reasonably likely to have a materially adverse effect on Borrower or any Individual Property or the current operation thereof for its then existing use (except as referred to or reflected in said financial statements) or, with respect to Guarantor, would materially impair Guarantor’s ability to fulfill its obligations under the Guaranty. Since the date of such financial statements to and including the Closing Date, there has been no material adverse change in the financial condition, operation or business of Borrower from that set forth in said financial statements.

4.1.12

Condemnation. Except as set forth on Schedule 4.1.12, no Condemnation or other similar proceeding has been commenced or, to Xxxxxxxx’s knowledge, threatened in writing or, to Xxxxxxxx’s knowledge, is contemplated by a Governmental Authority with respect to all or any portion of any Individual Property or for the relocation of roadways providing access to any Individual Property other than to the extent that the same would not be reasonably expected to have an Individual Material Adverse Effect on the Individual Property affected thereby.

4.1.13

Federal Reserve Regulations. No part of the proceeds of the Loan will be used for the purpose of purchasing or acquiring any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System or for any other purpose which would be inconsistent with such Regulation U or any other Regulations of such Board of Governors, or for any purposes prohibited by Legal Requirements or by the terms and conditions of this Agreement or the other Loan Documents.

4.1.14

Utilities and Public Access. Except as set forth in the Title Insurance Policies, the Surveys of the Properties or if the same do not, in the aggregate in respect of the Individual Property affected thereby, have an Individual Material Adverse Effect on such Individual Property or an Aggregate Material Adverse Effect, (i) each Individual Property has rights of access to public ways and is served by water, sewer, sanitary sewer and storm drain facilities adequate to service such Individual Property for its respective intended uses, (ii) all public utilities necessary or convenient to the full use and enjoyment of each Individual Property are located either in the public right-of-way abutting such Individual Property (which are connected so as to serve such Individual Property without passing over other property) or in recorded easements serving such Individual Property and such easements are set forth in and insured by the applicable Title Insurance Policy and (iii) all roads necessary for the use of each Individual Property for their respective purposes have been completed and dedicated to public use and accepted by all Governmental Authorities.

4.1.15

Not a Foreign Person. Borrower (or if such entity is a disregarded entity for U.S. federal income tax purposes, such entity’s beneficial owner) is not a “foreign person” within the meaning of Section 1445(f)(3) of the Code.

4.1.16

Separate Lots. Except as set forth on Schedule 4.1.16 or in the Title Insurance Policies, each Individual Property is comprised of one (1) or more parcels which constitute a separate tax lot or lots and does not constitute a portion of any other tax lot not a part of such Individual Property.

4.1.17

Assessments. Except as set forth on Schedule 4.1.17 or in the Title Insurance Policies, to Xxxxxxxx’s knowledge, there are no pending or, to Xxxxxxxx’s knowledge, proposed special or other assessments for public improvements or otherwise affecting any Individual Property, nor are there any contemplated improvements to any Individual Property that may result in such special or other assessments, except to the extent, in each case, such assessments could not reasonably be expected to have an Individual Material Adverse Effect on such Individual Property.

4.1.18

Enforceability. The Loan Documents to which Borrower or Guarantor are a party are enforceable by Administrative Agent and Lender (or any subsequent holder thereof) in accordance with their respective terms, subject to principles of equity and bankruptcy, insolvency and other laws generally applicable to creditors’ rights and the enforcement of debtors’ obligations. The Loan Documents to which Borrower or Guarantor are a party are not subject to any right of rescission, set off, counterclaim or defense by Borrower or Guarantor, including the defense of usury, nor would the operation of any of the terms of the Loan Documents, or the exercise of any right thereunder, render the Loan Documents unenforceable (subject to principles of equity and bankruptcy, insolvency and other laws generally affecting creditors’ rights and the enforcement of debtors’ obligations), and none of Borrower, any Affiliate Manager, Guarantor, or, to Xxxxxxxx’s knowledge, any other Manager has asserted any right of rescission, set off, counterclaim or defense with respect thereto.

4.1.19

No Prior Collateral Assignment. There are no prior collateral assignments of the Leases or any portion of the Rents due and payable or to become due and payable which are presently outstanding (except for the assignment of Leases and Rents given to Administrative Agent on the Closing Date).

4.1.20

Insurance. Borrower has obtained and has delivered to Administrative Agent certificates evidencing all Policies, which certificates reflect the insurance coverages, amounts and other requirements set forth in this Agreement. No claims have been made that are pending, outstanding or otherwise remain unsatisfied under any Policies that, if denied, would be reasonably expected to have an Individual Material Adverse Effect with respect to any Individual Property or an Aggregate Material Adverse Effect. None of Borrower, Affiliate Manager or Guarantor, nor to Xxxxxxxx’s knowledge, any other Person, has done, by act or omission, anything which would impair the coverage of any of the Policies.

4.1.21

Use of Property. Each Individual Property is used exclusively for (i) multi-family or residential housing or ancillary purposes (including commercial or retail) and other appurtenant and related uses, (ii) in a manner consistent with the use of such Individual Property as of the Closing Date, as applicable, or (iii) any other uses permitted by applicable law so long as the primary use of such Individual Property remains consistent with the uses contemplated in clauses (i) and (ii) herein and any ancillary uses and services (collectively, the “Permitted Uses”).

4.1.22

Certificate of Occupancy; Licenses. Except as set forth on Schedule 4.1.22 or disclosed in the Zoning Reports, all certifications, permits, licenses and approvals, including without limitation, certificates of completion and occupancy permits, required for the legal use, occupancy and operation of each Individual Property for the Permitted Uses and required to be maintained by the owner of an Individual Property (collectively, the “Licenses”), have been obtained and are in full force and effect except to the extent the failure to have such Licenses would not have individually or in the aggregate an Individual Material Adverse Effect on such Individual Property. Borrower shall keep and maintain all Licenses necessary for the operation of each Individual Property for the Permitted Uses, to the extent the failure to not have such Licenses would have an Individual Material Adverse Effect on such Individual Property. Except as set forth on Schedule 4.1.22 attached hereto or disclosed in the Zoning Reports, the use being made of each Individual Property is in conformity in all material respects with the certificate of occupancy issued for such Individual Property (if any).

4.1.23

Flood Zone. Except as set forth in the Surveys or the flood determination obtained by Administrative Agent, none of the Improvements on any Individual Property are located in an area as identified by the Federal Emergency Management Agency as an area having special flood hazards, or, if so located, the flood insurance required pursuant to Section 6.1(a)(i) is in full force and effect with respect to each such Individual Property.

4.1.24

Physical Condition. Except if the same would not, in the aggregate in respect of the Individual Property affected thereby, have an Individual Material Adverse Effect or Aggregate Material Adverse Effect, and except as disclosed in the engineering reports or physical condition reports commissioned by or delivered to Administrative Agent in connection with the origination of the Loan, to Borrower’s knowledge (i) each Individual Property, including, without limitation, all Improvements, parking facilities, sidewalks, storm drainage systems, roofs, plumbing systems, HVAC systems, fire protection systems, electrical systems, equipment, elevators, exterior sidings and doors, landscaping, irrigation systems and all structural components, is in good condition, order and repair in all material respects as of such date; and (ii) there exists no structural or other material defects or damages in any Individual Property, whether latent or otherwise, and Borrower has not received notice from any insurance company or bonding company of any defects or inadequacies in any Individual Property, or any part thereof, which have not been remedied and would adversely affect the insurability of the same or cause the imposition of extraordinary premiums or charges thereon or of any termination or threatened termination of any policy of insurance or bond.

4.1.25

Boundaries. Except as depicted on the Surveys of the Properties delivered to Administrative Agent: (i) all of the Improvements which were included in determining the appraised value of each Individual Property lie wholly within the boundaries and building restriction lines of such Individual Property, (ii) no improvements on adjoining properties encroach upon such Individual Property, and (iii) no easements or other encumbrances upon the applicable Individual Property encroach upon any of the Improvements, so as to materially affect the value or marketability of the applicable Individual Property except those which are insured against by the applicable Title Insurance Policy.

4.1.26

Leases. Except as set forth on Schedule 4.1.26(a), as of the date of the rent roll, no Individual Property is subject to any Leases other than the Leases in respect of such Individual Property with Tenants that are described in the Certificate of Rent Roll and certain third-party access agreements, Excluded Leases and except for subtenants under subleases entered into by Tenants at an Individual Property. To Borrower’s knowledge, except (i) as otherwise disclosed on the Certificate of Rent Roll, (ii) as set forth on Schedule 4.1.26(b), and (iii) for discrepancies which, either individually or in the aggregate would not have an Individual Material Adverse Effect in respect of any Individual Property nor have an Aggregate Material Adverse Effect, the rent roll attached to the Certificate of Rent Roll is true, complete and accurate in all respects as of the date of such rent roll. In respect of each Individual Property, (i) Borrower is the owner and lessor of landlord’s interest in the Leases in respect to such Individual Property and (ii) to Borrower’s knowledge, no Person has any possessory interest in such Individual Property or right to occupy the same, in each case, which was granted by or on behalf of Borrower, except under and pursuant to the provisions of the Leases or any Permitted Encumbrances and except for certain third-party access agreements, Excluded Leases and except for subtenants under subleases entered into by Tenants at an Individual Property. To Borrower’s knowledge, except (i) as otherwise disclosed on the Certificate of Rent Roll and (ii) as set forth in the tenant estoppels delivered to Administrative Agent on or prior to the Closing Date (if any), as of the date of the rent roll described in the Certificate of Rent Roll, the Leases were in full force and effect. Except (1) as set forth in the tenant estoppels delivered by Borrower to Administrative Agent on or prior to the Closing Date (if any), in the Certificate of Rent Roll or on Schedule 4.1.26(c) and (2) if the same, either individually or in the aggregate, would not have an Individual Material Adverse Effect in respect of any Individual Property nor have an Aggregate Material Adverse Effect, (a) all security deposits are held in accordance with applicable law, (b) except as set forth in the Certificate of Rent Roll or on Schedule 4.1.26(d) hereto, to Xxxxxxxx’s knowledge, no Rent had been paid by any Tenant at any Individual Property more than one (1) month in advance of its due date, and (c) except as otherwise disclosed on Schedule 4.1.26(e) hereto, all tenant improvements, leasing commissions and landlord work under commercial Leases (other than amendments, modifications or renewals) that are to be performed or funded by Borrower within 12 months following the Closing Date, have been or will be performed or funded as required under the applicable Lease and, with respect to such tenant improvements and landlord work, have been accepted by the applicable Tenant (to the extent such work has been performed). Except as otherwise disclosed on Schedule 4.1.26(f) hereto, no Tenant has a right or option or right of first refusal pursuant to its Lease, Excluded Lease or otherwise to purchase all or any part of the Individual Property to which such Lease or Excluded Lease relates. Except if the same, either individually or in the aggregate, would not have an Individual Material Adverse Effect in respect of any Individual Property nor have an Aggregate Material Adverse Effect, and except as set forth on Schedule 4.1.26(g) hereto or as set forth in the tenant estoppels delivered to Administrative Agent on or prior to the Closing Date, no Tenant under any commercial Lease has a right or option pursuant to such commercial Lease or otherwise to terminate such commercial Lease prior to the scheduled expiration date thereof, other than any such right or option that is conditional upon the occurrence of certain events or circumstances. Borrower has not, directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise, assigned, transferred, encumbered, hypothecated, pledged or granted a security interest in any of the Leases or its interest therein, other than (i) with respect to prior financings that have been repaid or otherwise discharged or that will be repaid or discharged as of the closing of the Loan or (ii) pursuant to the Loan Documents.

4.1.27

Survey. Except for matters shown in the Title Insurance Policies, to Xxxxxxxx’s knowledge, the Survey for each Individual Property delivered to Administrative Agent in connection with the origination of the Loan does not fail to reflect any material adverse matter affecting such Individual Property or the title thereto, except to the extent the same would not reasonably be expected to have an Individual Material Adverse Effect.

4.1.28

Principal Place of Business; State of Organization. Schedule 4.1.28 sets forth the address of each Individual Borrower’s principal place of business as of the Closing Date. Xxxxxxxx is organized under the laws of the state of organization as set forth on Schedule 4.1.28.

4.1.29

Filing and Recording Taxes. All mortgage, mortgage recording, stamp, intangible or other similar taxes required to be paid by any Person under applicable Legal Requirements in effect on the Closing Date in connection with the execution, delivery, recordation, filing, registration or perfection of any of the Loan Documents, including, without limitation, the Mortgages, have been paid (or sufficient funds have been escrowed with the Title Company for such payment), and, under current Legal Requirements, the Mortgages are enforceable in accordance with their respective terms by Administrative Agent (or any subsequent holder thereof), subject to principles of equity and bankruptcy, insolvency and other laws generally applicable to creditors’ rights and the enforcement of debtors’ obligations.

4.1.30

Special Purpose Entity/Separateness. Borrower and each SPE Constituent Entity is a Special Purpose Entity, except as set forth on Schedule 4.1.30.

(b)

The representations and warranties set forth in Section 4.1.30(a) shall survive for so long as any amount remains payable to Administrative Agent and/or Lender under this Agreement or any other Loan Document.

(c)

Any amendment or amendment and 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 factual assumptions made in the Insolvency Opinion delivered on the Closing Date, including, but not limited to, any exhibits attached thereto, are true and correct in all material respects as of the Closing Date and any factual 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, shall be true and correct, in all material respects, as of the date of such Additional Insolvency Opinion. Borrower and each SPE Constituent Entity have complied, in all material respects, with all of the stated facts and factual assumptions made with respect to Borrower and each SPE Constituent Entity in the Insolvency Opinion. Borrower and each SPE Constituent Entity intends to comply, in all material respects, with all of the stated facts and factual assumptions made with respect to Borrower, as applicable, in any Additional Insolvency Opinion. Each entity other than Borrower and each SPE Constituent Entity with respect to which a factual assumption is made or a fact stated in the Insolvency Opinion and, in connection with any Additional Insolvency Opinion, will be made, have complied or intends to comply, in all material respects, with all of the factual assumptions made and facts stated with respect to it in the Insolvency Opinion and any such Additional Insolvency Opinion.

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(e)

Each assignment or transfer of limited liability company or partnership interests in Borrower and each SPE Constituent Entity by all prior members or partners of such Person to such Person’s successor member, partner or their sole member, as the case may be, and the admission of such Person’s successor member or applicable sole member, as the case may be, as a member of such Person or successor partner as a limited partner or general partner of such Person, as the case may be, were accomplished in accordance with, and were permitted by, the applicable limited liability company agreement or limited partnership agreement governing the affairs of such Person at the time of such assignment or transfer and admission, and following each such assignment and admission, such Borrower or SPE Constituent Entity was continued without dissolution; there have been at all times since the formation of each Borrower and SPE Constituent Entity at least one member or one general partner and one limited partner, as applicable, of each Borrower and SPE Constituent Entity.

(f)

Any payments made pursuant to the Loan Documents to or for the benefit of any Borrower or Mezzanine Borrower shall constitute distributions to or at the discretion of the applicable equity owner of such entity.

(g)

Borrower has no judgments or Liens of any nature against it except for Section 2.9 Tax liens not yet delinquent and the Permitted Encumbrances.

(h)

Xxxxxxxx has provided Administrative Agent with complete financial statements that reflected a fair and accurate view, in all material respects, of the entity’s financial conditions as of the date set forth therein in all material respects.

(i)

With respect to each Borrower and SPE Constituent Entity, (i) such Borrower or SPE Constituent Entity is and always has been duly formed, validly existing and in good standing in the State in which it was formed and in any other jurisdictions where it is qualified to do business; (ii) such Borrower or SPE Constituent Entity is in compliance with all laws, regulations and orders applicable to such Borrower or SPE Constituent Entity in all material respects and had received all material permits necessary for such Borrower or SPE Constituent Entity to operate, unless a failure to comply with or possess the same would not materially and adversely affect the condition, financial or otherwise, of such Borrower or SPE Constituent Entity; (iii) subject to Section 4.1.4 hereof, as of the Closing Date, no Borrower or SPE Constituent Entity was aware of any pending or threatened litigation involving such Borrower or SPE Constituent Entity that, if adversely determined, would be reasonably likely to materially adversely affect the condition (financial or otherwise) of such Borrower or SPE Constituent Entity, or the condition or ownership of the property owned by such Borrower; (iv) such Borrower or SPE Constituent Entity is not involved in any dispute with any taxing authority, other than any contesting of taxes in accordance with the terms and conditions of this Agreement; (v) such Borrower has paid or has caused to be paid all real estate taxes that are due and payable with respect to its applicable Individual Property other than any such taxes which are not yet delinquent or were being contested in accordance with the terms and conditions of this Agreement; (vi) such Borrower has never owned any real property other than its applicable Individual Property and, with respect to any Previously Owned Property Borrower, the related Previously Owned Property, and such SPE Constituent Entity has never owned any real property; (vii) such Borrower or SPE Constituent Entity is not, nor has it ever been party to any lawsuit, arbitration, summons or legal proceeding that, if adversely determined, would reasonably be expected to have an Individual Material Adverse Effect on the condition (financial or otherwise) of such Borrower or SPE Constituent Entity or the condition or ownership of the property owned by such Borrower or SPE Constituent Entity; and (viii) except as set forth in the environmental reports delivered to Administrative Agent for each Individual Property in connection with the closing of the Loan, the most recent Phase One environmental audit for each Individual Property recommends no action.

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(j)

Each Borrower and SPE Constituent Entity has no material contingent or actual obligations related to the Previously-Owned Property except (i) to the extent such obligations are (x) covered by insurance for a period not less than two (2) years following the sale of such Previously-Owned Property, or (y) subject to reimbursement from a third-party or (ii) Permitted Encumbrances (collectively, “Permitted POP Obligations”).

(k)

Except as set forth in Section 4.1.30(m) hereof or the Permitted POP Obligations, Borrower has no material contingent or actual obligations not related to the Property and each SPE Constituent Entity has no material contingent or actual obligations not related to its partnership interest or limited liability company interest in the applicable Borrower.

(l)

The Organizational Documents for each Borrower and SPE Constituent Entity that is a Delaware limited liability company provide and shall at all times during the term of the Loan provide that except for duties to such Borrower and SPE Constituent Entity as set forth in the Organizational Documents (including duties to the member and such Borrower and SPE Constituent Entity’s creditors solely to the extent of their respective economic interests in such Borrower and such SPE Constituent Entity, but excluding (i) all other interests of the member, (ii) the interests of other Affiliates of Borrower and such SPE Constituent Entity, and (iii) the interests of any group of Affiliates of which Borrower and such SPE Constituent Entity is a part), the Independent Directors or Independent Managers shall not have any fiduciary duties to the member, any officer or any other Person bound by the applicable Borrower’s and/or SPE Constituent Entity’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 SPE Constituent Entity that is a Delaware limited liability company provide and shall at all times during the term of the Loan provide that to the fullest extent permitted by law, including Section 18-1101(e) of the Delaware Limited Liability Company Act, an Independent Director or Independent Manager shall not be liable to Borrower, the member or any other Person bound by the applicable Borrower’s and/or SPE Constituent Entity’s Organizational Documents for breach of contract or breach of duties (including fiduciary duties), unless the Independent Director or Independent Manager acted in bad faith or engaged in willful misconduct. The Organizational Documents for each Borrower and SPE Constituent Entity that is a Delaware limited liability company provide that all right, power and authority of the Independent Directors or Independent Managers shall be limited to the extent necessary to exercise those rights and perform those duties specifically set forth in the applicable Loan Party’s Organizational Documents. The Organizational Documents for each Borrower and SPE Constituent Entity that is a Delaware limited liability company provide that notwithstanding any other provision of the applicable Borrower’s and/or SPE Constituent Entity’s Organizational Documents to the contrary, each Independent Director or Independent Manager, in its capacity as an Independent Director or Independent Manager, as applicable, may only act, vote or otherwise participate in those matters referred to in Section 9(j)(iii) of the applicable Borrower’s and SPE Constituent Entity’s Organizational Documents or as otherwise specifically required by the applicable Organizational Documents, and such Independent Director’s or Independent Manager’s, as applicable, act, vote or other participation shall not be required for the validity of any action taken by the board of directors of such Borrower unless, pursuant to the provisions of Section 9(j)(iii) of the applicable Borrower’s and SPE Constituent Entity’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 or Independent Manager. The Organizational Documents of each Borrower and each SPE Constituent Entity that is not a Delaware limited liability company contain terms and provisions similar to the terms and provisions set forth in this subclause (l) to the extent permitted by applicable law.

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(m)

Except as set forth on Schedule 4.1.30, each Borrower and each SPE Constituent Entity hereby represents with respect to itself that from the date of such Borrower’s formation to the date hereof:

(i)

its business has been limited solely to (A) in the case of Xxxxxxxx, acquiring, developing, owning, holding, selling, leasing, transferring, exchanging, managing, renovating, improving, financing, refinancing and operating and managing the Properties, its Previously Owned Property (if any) or its Individual Property, entering into financings and refinancings of the Property and any Previously Owned Property, and transacting any and all lawful business that was incident, necessary or appropriate to accomplish the foregoing and (B) in the case of a SPE Constituent Entity, acting as a general partner of a limited partnership Borrower or as a member of a limited liability company Borrower and transaction lawful business that is incident, necessary and appropriate to accomplish the foregoing;

(ii)

reserved;

(iii)

it has never owned any real property other than, in the case of Borrower, the Property or its Individual Property or Previously Owned Property (if any) and it has not engaged in any business other than as set forth in clause (i) above;

(iv)

other than (A) capital contributions and distributions permitted under the terms of its organizational documents and (B) the Fremont Ground Lease, 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, 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, and except as may have been permitted pursuant to the terms of any prior financings and which agreements are no longer in effect as of the date hereof;

(v)

it has not (a) made any loans 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, in each case 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)

except with respect to any matters that have been duly resolved as of the date hereof, it has observed or caused to be observed all organizational formalities that are necessary to preserve and keep in full force and effect its existence and rights (charter and statutory);

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(viii)

except with respect to prior financings that have been repaid or otherwise discharged, it has maintained all of its books, records, financial statements and bank accounts separate from those of any other Person and Borrower’s and SPE Constituent Entity’s assets have not been listed as assets on the financial statement of any other Person, unless (a) the financial statements of such other Person contained an appropriate notation indicating the separateness of Borrower or SPE Constituent Entity from such Person and indicating that Borrower’s or SPE Constituent Entity’s assets and credit were not available to satisfy the debts and other obligations of such Person and (b) such assets were also listed on the Borrower’s or SPE Constituent Entity’s own balance sheet. Each of Borrower and SPE Constituent Entity, to the extent applicable, has filed its own tax returns (except to the extent that it has been a disregarded entity not required to file tax returns under applicable law). Each of Borrower and SPE Constituent Entity, to the extent applicable, has maintained its books, records, resolutions and agreements as official records;

(ix)

except for business conducted on behalf of itself by another Person under a business management services agreement that is on commercially-reasonable terms, so long as the manager, or equivalent thereof, under such business management services agreement holds itself out as its agent, 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 any stationery, invoices and checks maintained or utilized by Borrower and SPE Constituent Entity have been separate;

(x)

it has not commingled its assets with those of any other Person, other than co-borrowers under prior loans that have been repaid in full, and has held all of its assets in its own name;

(xi)

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, other than co-borrowers or guarantors under prior financings that have been repaid or otherwise discharged or as otherwise imposed by law;

(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 with respect to prior financings that have been repaid or otherwise discharged and Permitted Encumbrances, 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 of any other Person other than with respect to loans secured by the Property and no such security interest, lien, pledge or other encumbrance remains outstanding;

(xiv)

it has maintained adequate capital in light of its contemplated business operations;

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(xv)

it has maintained a sufficient number of employees (if any) in light of its contemplated business operations and has paid the salaries of its own employees (if any) from its own funds;

(xvi)

it has not owned any subsidiary or any equity interest in any other Person, except, the case of SPE Constituent Entity, the applicable Borrower;

(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 other than cash and investment grade securities issued by an entity that is not an Affiliate of or subject to common ownership with such 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 has never been party to any material lawsuit, arbitration, summons, or legal proceeding that resulted in a monetary judgment against it that has not been paid in full to the extent required pursuant to such judgment;

(xxi)

it has no material contingent or actual obligations not related to (A) in the case of Borrower, the Properties and/or its Individual Property and/or Previously Owned Property (if any) and (B) in the case of SPE Constituent Entity, its partnership interest or limited liability company interest in the applicable Borrower;

(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)

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, and other than in connection with the Loan, it has not had any of its obligations guaranteed by an Affiliate except for TI Guarantees;

(xxiv)

none of the Tenants holding leasehold interests with respect to the Properties or its Individual Property is Affiliated with Borrower;

(xxv)

except as set forth in the Title Insurance Policy, has no judgments or liens of any nature against it except for tax liens not yet delinquent;

(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; and

(xxviii)

except as set forth in the Title Insurance Policy, has paid all taxes which it owes except as permitted pursuant to this Agreement.

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(n)

(i) that any amendment or restatement of Xxxxxxxx’s organizational documents has been 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, and (ii) that at all times since the formation of the Borrower there has been at least one member of the Borrower and that the Borrower was not dissolved prior to the entering into of the Borrower’s current limited liability agreement.

4.1.31

Management Agreement. Each Management Agreement is in full force and effect and there is no default thereunder by Affiliate Manager or, to Xxxxxxxx’s knowledge, any other Manager party thereto and, to Xxxxxxxx’s knowledge, no event has occurred that, with the passage of time and/or the giving of notice would constitute a default thereunder. Each Management Agreement was entered into on commercially reasonable terms. Except as set forth on Schedule 4.1.31, no base management fee under any Management Agreement exceeds, with respect to each Individual Property, the greater of (i) three and one-half percent (3.5%) of the Gross Income from Operations attributable to such Individual Property, or (ii) such other amount in excess of three and one-half percent (3.5%) of the Gross Income from Operations attributable to such Individual Property, so long as, solely with respect to this clause (ii), the aggregate base management fees under all Management Agreements for all Properties that are then subject to the Lien of the Mortgages does not exceed three and one-half percent (3.5%) of Gross Income from Operations (such greater fee, the “Individual Management Fee Cap”), provided that in any instance that the Manager is an Affiliate Manager and a Management Fee Cap Election has been made, any such management fees shall be subject to the Affiliate Management Fee Subordination Condition. For the avoidance of doubt, in no event shall any management fees in excess of the Base Fee (or actual, if lower) be payable to an Affiliated Manager during a Cash Sweep Period. In no instance shall Borrower pass-through any management fees to any Tenant in excess of the amount permitted under the related Lease.

4.1.32

Illegal Activity. No portion of any Individual Property has been or will be purchased by Borrower with proceeds of any illegal activity.

4.1.33

No Change in Facts or Circumstances; Disclosure. Except as set forth on Schedule 4.1.33, all information (after giving effect to any supplements to such information submitted to Administrative Agent) submitted by and on behalf of Xxxxxxxx, Guarantor and Affiliate Manager to Administrative Agent and in all financial statements, reports, certificates and other documents submitted in connection with the Loan or in satisfaction of the terms thereof and all statements of fact made by Borrower, Guarantor and Affiliate Manager in this Agreement or in any other Loan Document, in each case, are true, complete and correct in all material respects (or to the extent any such data was incorrect in any material respect when delivered, the same was corrected by information subsequently delivered to Administrative Agent on or prior to the Closing Date). The foregoing representation shall not apply to any such financial information that constitutes projections, provided that Borrower represents and warrants that it has no reason to believe that such projections are materially inaccurate. Except as set forth on Schedule 4.1.33 (after giving effect to any supplements to such information submitted to Administrative Agent), there has been no material adverse change in any condition, fact, circumstance or event that would make any such information inaccurate, incomplete or otherwise misleading in any material respect or that otherwise has or would be reasonably likely to have an Individual Material Adverse Effect with respect to any Individual Property or an Aggregate Material Adverse Effect. Borrower has disclosed to Administrative Agent all material facts known to Borrower and has not failed to disclose any material fact known to Borrower that could have caused any Provided Information or could cause any representation or warranty made herein to be materially misleading.

4.1.34

Investment Company Act. Borrower is not (a) an “investment company” within the meaning of the Investment Company Act of 1940, as amended; or (b) subject to any other federal or state law or regulation which purports to restrict or regulate its ability to borrow money.

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4.1.35

Embargoed Person. None of the funds or other assets of Borrower constitute property of, or are beneficially owned, directly or, to the best of Borrower’s knowledge, indirectly, by any Embargoed Person. None of the funds or other assets of Guarantor constitute property of, or are beneficially owned, to the best of Borrower’s knowledge directly or indirectly, by any Embargoed Person. No Embargoed Person has any interest of any nature whatsoever in Borrower or Guarantor, as applicable, with the result that the investment in Borrower or Guarantor, as applicable (whether directly or, to the best of Borrower’s knowledge, indirectly), is prohibited by law or the Loan is in violation of law, and none of the funds of Borrower or Guarantor, as applicable, have been derived from any unlawful activity with the result that the investment in Borrower or Guarantor, as applicable (whether directly or indirectly), is prohibited by law or the Loan is in violation of law.

4.1.36

Cash Management Account.

(a)

This Agreement, together with the other Loan Documents, creates a valid and continuing security interest (as defined in the Uniform Commercial Code of the State of New York) in each Lockbox Account and the Cash Management Account (to the extent the Cash Management Account is open as of the Closing Date) in favor of Administrative Agent, for the benefit of Lender, which security interest is prior to all other Liens, other than Permitted Encumbrances, and is enforceable as such against creditors of and purchasers from Borrower. Other than (i) with respect to prior financings that have been repaid or otherwise discharged or that will be repaid or discharged as of the closing of the Loan, (ii) in connection with the Loan Documents or (iii) Permitted Encumbrances, Borrower has not sold, pledged, transferred or otherwise conveyed any Lockbox Account or the Cash Management Account;

(b)

Each Lockbox Account and Cash Management Account (to the extent that the Cash Management Account is open as of the Closing Date) constitutes a “deposit account” within the meaning of the Uniform Commercial Code as in effect in the State of New York;

(c)

Pursuant and subject to the terms hereof and the other applicable Loan Documents, the Lockbox Bank and Cash Management Bank have agreed to comply with all instructions originated by Administrative Agent, without further consent by Xxxxxxxx, directing disposition of the Lockbox Account and the Cash Management Account, to the extent open, and all sums at any time held, deposited or invested therein, together with any interest or other earnings thereon, and all proceeds thereof (including proceeds of sales and other dispositions), whether accounts, general intangibles, chattel paper, deposit accounts, instruments, documents or securities, and Xxxxxxxx has not consented to the Lockbox Bank or Cash Management Bank complying with instructions with respect to each Lockbox Account and Cash Management Account from any Person other than Administrative Agent;

(d)

Each Lockbox Account is not in the name of any Person other than Xxxxxxxx, as pledgor or Administrative Agent, as pledgee and the Cash Management Account (to the extent the Cash Management Account is open as of the Closing Date) is not in the name of any Person other than Borrower, as pledgor and Administrative Agent, as pledgee; and

(e)

None of the Rents from the Properties are deposited by or on behalf of Borrower into any “deposit accounts” or “securities accounts” which are subject to a security interest in favor of third parties, other than pursuant to the Loan Documents.

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4.1.37

Reciprocal Easement Agreement. To Borrower’s knowledge, each Reciprocal Easement Agreement is in full force and effect. Except as set forth in REA estoppels delivered to Administrative Agent on or prior to the Closing Date, (i) neither the applicable Borrower, nor, to Borrower’s knowledge, any other party to the Reciprocal Easement Agreement, is in default under any of the material provisions thereof (except for violations or defaults that have been cured or that have not resulted, or would not reasonably be expected to result, individually or in the aggregate, in an Individual Material Adverse Effect) and (ii) Borrower has not delivered a written notice to any party under a Reciprocal Easement Agreement that it is in default thereunder (other than notices relating to defaults that have been cured by such party) and no such party to a Reciprocal Easement Agreement is in monetary or, to Borrower’s knowledge, material non-monetary default under such Reciprocal Easement Agreement (except for defaults that do not have, or would not reasonably be expected to result in, individually or in the aggregate, an Individual Material Adverse Effect on the applicable Individual Property).

4.1.38

Equipment, Fixtures and Personal Property. Except as set forth on Schedule 4.1.38, Borrower is the owner of all of the Equipment, Fixtures and Personal Property located on or at each Individual Property, other than any such Equipment, Fixtures and Personal Property which are owned by Tenants or other third parties or which has been leased by Borrower as permitted under the terms of this Agreement under any Leases. All of the Equipment, Fixtures and Personal Property were sufficient to operate each Individual Property in the manner required hereunder and in the manner in which it is currently operated.

4.1.39

Full and Accurate Disclosure. No statement of fact made by Xxxxxxxx in this Agreement, the other Loan Documents, or any written statement or document furnished by or on behalf of Borrower in connection with the Loan or pursuant to the terms of this Agreement or any other Loan Document contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements contained herein or therein not misleading in light of the circumstances under which they were made. There is no material fact known to Borrower which has not been disclosed to Administrative Agent and which could reasonably be expected to have an Individual Material Adverse Effect, or which could reasonably be expected to materially and adversely affect the business, operations or condition (financial or otherwise) of Borrower or SPE Constituent Entity, or materially impair Guarantor’s ability to fulfill its obligations under the Guaranty.

4.1.40

Underwriting Representations. Except as set forth on Schedule 4.1.40 or as disclosed in writing to Administrative Agent prior to the Closing Date, Borrower hereby represents that it:

(a)

has no judgments or liens of any nature against it except for Permitted Encumbrances and tax liens not yet delinquent;

(b)

is not involved in any dispute with any taxing authorities (other than, for the avoidance of doubt, appeals of real property taxes in accordance with the terms of this Agreement);

(c)

is not, nor has it ever been, a party to any lawsuit, arbitration, summons, or legal proceeding that was still pending (other than those that are covered by insurance and which would not reasonably be expected to have an Individual Material Adverse Effect, an Aggregate Material Adverse Effect or, with respect to Guarantor, materially impair Guarantor’s ability to perform its obligations under the Guaranty) or that resulted in a final judgment against it or its assets or properties that had not been paid in full; and

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(d)

each amendment and restatement of Xxxxxxxx’s organizational documents, if any, has been accomplished in accordance with, and was permitted by, the relevant provisions of said documents prior to such amendment or restatement from time to time.

4.1.41

Intentionally Omitted.

4.1.42

Condominium. Each of the Condominium Documents is (a) to Borrower’s knowledge, in full force and effect and (b) have not been amended, restated or otherwise modified in any material respect. As of the date hereof, Xxxxxxxx has received no written notice of default under the Condominium Documents and, to the best of the Borrower’s knowledge, there are no defaults by any other party under the Condominium Documents, in each case that would be reasonably expected to have an Aggregate Material Adverse Effect or Individual Material Adverse Effect. All charges, fees, assessments and reserves, if any, payable by Borrower under the Condominium Documents (whether annual, monthly, regular, special or otherwise) have been paid to the extent they are due and payable as of the date hereof. Borrower has no knowledge of any pending assessments which have been called for in writing to which Borrower would be subject under the Condominium Documents.

Section

4.2 Survival of Representations. Xxxxxxxx agrees that all of the representations and warranties of Borrower set forth in Section 4.1 hereof and elsewhere in this Agreement and in the other Loan Documents shall survive for so long as any amount remains owing to Administrative Agent and/or Lender under this Agreement or any of the other Loan Documents by Xxxxxxxx (provided, however, such representations and warranties shall not be deemed remade as of any date after the Closing Date). All representations, warranties, covenants and agreements made in this Agreement or in the other Loan Documents by Borrower shall be deemed to have been relied upon by Administrative Agent and Lender notwithstanding any investigation heretofore or hereafter made by Administrative Agent and Lender or on its behalf.

Section

4.3 ERISA Representations of Lender. Lender represents, warrants and covenants that:

(a)

As of the Closing Date and for so long as Lender is holder of all or part of the Loan (i) no portion of the assets used by Lender to fund any portion of the Loan constitutes Plan Assets (unless Lender is relying on an applicable prohibited transaction exemption, the conditions for exemptive relief which are and continue to be satisfied in connection with the transactions contemplated under the Loan Documents), (ii) Lender is not a “governmental plan” within the meaning of Section 3(32) of ERISA, and (iii) the making of the Loan by Xxxxxx and the exercise of Xxxxxx’s rights under the Loan Documents is not in violation of any Applicable Similar Law.

(b)

With respect to transfers of an interest in the Loan by Xxxxxx to a third party (a “Purchaser”), Lender shall for the benefit of Borrower:

(i)

obtain from such Purchaser (A) a representation essentially the same as the representation set forth in paragraph (a) of this Section 4.3 (but substituting the term “Purchaser” for the term “Lender” therein) or (B) a representation providing reasonable assurance that the transfer of the interest in the Loan and the holding by Purchaser of such interest for so long as Purchaser holds such interest are exempt from or otherwise not prohibited under Section 406 of ERISA, Section 4975 of the Internal Revenue Code and Applicable Similar Law; or

(ii)

transfer such interest through the sale of the Loan to a trust or other entity which would issue securities structured in such manner as would not result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code and Applicable Similar Law.

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ARTICLE V

BORROWER COVENANTS

Section

5.1 Affirmative Covenants. From the Closing Date and until payment and performance in full of all obligations of Borrower under the Loan Documents or the earlier release or assignment of the Liens of the Mortgages encumbering the Properties (and all related obligations) in accordance with the terms of this Agreement and the other Loan Documents, Borrower hereby covenants and agrees with Administrative Agent and Lender that:

5.1.1

Existence; Compliance with Legal Requirements. Borrower shall do or cause to be done all things necessary to preserve, renew and keep in full force and effect its existence, rights, licenses, permits and franchises and comply in all material respects with all Legal Requirements applicable to Borrower and the Properties (and the respective use thereof), including, without limitation, building and zoning ordinances and codes and certificates of occupancy. There shall never be committed by Xxxxxxxx and Xxxxxxxx shall not permit any other Person in occupancy of or involved with the operation or use of the Properties to commit any act or omission affording the federal government or any state or local government the right of forfeiture against any Individual Property or any part thereof or any monies paid in performance of Borrower’s obligations under any of the Loan Documents. Borrower hereby covenants and agrees not to commit, permit or suffer to exist any act or omission affording such right of forfeiture. Borrower shall at all times maintain, preserve and protect all franchises and trade names and preserve all the remainder of its property used or useful in the conduct of its business and shall keep the Properties in good working order and repair (normal wear and tear excepted), and from time to time make, or cause to be made, all reasonably necessary repairs, renewals, replacements, betterments and improvements thereto, all as more fully provided in the Loan Documents. Borrower shall keep the Properties insured at all times by financially sound and reputable insurers, to such extent and against such risks, and maintain liability and such other insurance, as is more fully provided in this Agreement. After prior written notice to Administrative Agent (which notice shall not be required in connection with clause (z) below), Borrower, at Borrower’s own expense, may contest by appropriate legal proceeding promptly initiated and conducted in good faith and with due diligence, (x) the validity of any Legal Requirement, (y) the applicability of any Legal Requirement to Borrower or any Individual Property or (z) any alleged violation of any Legal Requirement, provided that, with respect to the foregoing clauses (x) and (y), (a) no Event of Default has occurred and remains uncured; (b) such proceeding shall be permitted under and be conducted in accordance with the provisions of any instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances; (c) no Individual Property nor any part thereof or interest therein will be in imminent danger of being sold, forfeited, terminated, cancelled or lost; (d) Borrower shall promptly upon final determination thereof comply with any such Legal Requirement determined to be valid or applicable or cure any violation of any Legal Requirement; (e) such proceeding shall suspend the enforcement of the contested Legal Requirement against Borrower and any Individual Property; and (f) to the extent that the aggregate amount reasonably determined to cause Borrower’s compliance with such Legal Requirement exceeds $12,000,000 (excluding any amounts required to be paid directly by Tenants), Borrower shall furnish such security as may be required in the proceeding, or as may be reasonably requested by Administrative Agent for the benefit of Lender (provided, in no event shall the security requested by Administrative Agent be in an amount greater than one hundred percent (100%) of the maximum amount reasonably expected by Administrative Agent to be payable in the event such contest is unsuccessful), to insure compliance with such Legal Requirement, together with all interest and penalties payable in connection therewith. Administrative Agent for the benefit of Lender may apply any such security, as necessary to cause compliance with such Legal Requirement at any time when, in the reasonable judgment of Administrative Agent, the validity, applicability or violation of such Legal Requirement is finally established or any Individual Property (or any part thereof or interest therein) shall be in imminent danger of being sold, forfeited, terminated, cancelled or lost.

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5.1.2

Taxes and Other Charges. Subject to Section 7.2 hereof and any PILOT Documents, except as otherwise provided in this Section 5.1.2, Borrower shall pay or cause to be paid all Taxes and Other Charges now or hereafter levied or assessed or imposed against the Properties or any part thereof prior to delinquency; provided, the foregoing obligation to pay Taxes directly with respect to the Properties shall be deemed satisfied for so long as Borrower is making deposits into the Tax and Insurance Reserve Account and complies with the terms and provisions of Section 7.2. Except as otherwise provided in this Section 5.1.2, Borrower shall, not later than ten (10) Business Days after receipt of a written request from Administrative Agent, deliver to Administrative Agent receipts for payment or other evidence reasonably satisfactory to Administrative Agent that all Taxes and Other Charges that are due and payable at such time have been duly paid by Borrower prior to delinquency (provided, however, that Administrative Agent shall have no right to deliver such written request to Borrower during any period that such Taxes and Other Charges are being paid by Administrative Agent pursuant to Section 7.2 hereof). Except as provided in the following sentence, Borrower shall not suffer and shall promptly cause to be paid and discharged any Lien (other than a Permitted Encumbrance) or charge whatsoever which may be or become a Lien or charge against the Properties, and shall promptly pay for all utility services provided to the Properties (other than any such utilities which are, pursuant to the terms of any Lease, required to be paid by the Tenant thereunder directly to the applicable service provider). After prior written notice to Administrative Agent (except with respect to Taxes or Other Charges not yet delinquent, for which no notice is required), Borrower, at Borrower’s own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Taxes or Other Charges, provided that (a) no Event of Default has occurred and remains uncured; (b) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances; (c) no Individual Property nor any part thereof or interest therein will be in imminent danger of being sold, forfeited, terminated, cancelled or lost; (d) Borrower shall promptly upon final determination thereof pay the amount of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (e) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the applicable Individual Property (or Borrower pays the same under protest); and (f) to the extent that the aggregate amount at issue exceeds $12,000,000 (excluding any amounts required to be paid directly by Tenants or held by Administrative Agent in the Tax and Insurance Reserve Account for Taxes) and a Cash Sweep Period shall then be in effect, Borrower shall furnish such security as may be reasonably required in the proceeding, or as may be reasonably requested by Administrative Agent (provided, in no event shall the security requested by Administrative Agent be in an amount greater than one hundred percent (100%) of the maximum amount of such excess that is reasonably expected by Administrative Agent to be payable in the event such contest is unsuccessful), to insure the payment of any such Taxes or Other Charges, together with all interest and penalties thereon. Administrative Agent may pay over any such cash deposit or part thereof held by Administrative Agent to the claimant entitled thereto at any time when, in the judgment of Administrative Agent, the entitlement of such claimant is established or any Individual Property (or part thereof or interest therein) shall be in imminent danger of being sold, forfeited, terminated, cancelled or lost or there shall be any danger of the Lien of the related Mortgage being primed by any related Lien. Notwithstanding anything to the contrary, the provisions of this Section 5.1.2 shall not apply with respect to any contest of Taxes or Other Charges to the extent such Taxes or Other Charges are actually paid by Borrower prior to delinquency (including if such payment is made under protest) and Borrower delivers to Administrative Agent receipts for payment or other evidence reasonably satisfactory to Administrative Agent that such Taxes or Other Charges are actually paid by Borrower prior to delinquency (including if such payment is made under protest).

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5.1.3

Litigation. Borrower shall give prompt written notice to Administrative Agent of any litigation or governmental proceedings pending or threatened in writing against Borrower, any SPE Constituent Entity or any Individual Property which might materially adversely affect the condition of Borrower, any SPE Constituent Entity (financial or otherwise) or business of any Individual Property.

5.1.4

Access to Properties. Subject to the rights of Tenants, during the continuance of an Event of Default, Borrower shall permit agents, representatives and employees of Administrative Agent and each Lender to inspect the Properties or any part thereof at reasonable hours upon reasonable advance notice. Except during the continuance of an Event of Default, Administrative Agent’s and each Xxxxxx’s access to the Properties pursuant to any other terms of the Loan Documents, may be reasonably conditioned by Xxxxxxxx in order to comply with the written policies of Tenants of the applicable Individual Property.

5.1.5

Notice of Default. Borrower shall promptly advise Administrative Agent of any material adverse change in the condition of Borrower or any SPE Constituent Entity, financial or otherwise, or of the occurrence of any Event of Default of which Borrower has knowledge.

5.1.6

Cooperate in Legal Proceedings. Borrower shall cooperate fully, in a commercially reasonable manner, with Administrative Agent and Xxxxxx with respect to any proceedings before any court, board or other Governmental Authority which may in any way materially and adversely affect the rights of Administrative Agent or Lender hereunder or any rights obtained by Administrative Agent or Lender under any of the other Loan Documents and, in connection therewith, permit Administrative Agent and Lender, at its election, to participate in any such proceedings.

5.1.7

Perform Loan Documents. Borrower shall, in a timely manner, observe, perform and satisfy all the terms, provisions, covenants and conditions of the Loan Documents executed and delivered by, or applicable to, Borrower, and in accordance with and to the extent required under such Loan Documents.

5.1.8

Award and Insurance Benefits. Borrower shall cooperate with Administrative Agent in obtaining for Administrative Agent for the benefit of Lender, in accordance with the relevant provisions of this Agreement, the benefits of any Awards or Insurance Proceeds lawfully or equitably payable in connection with any Individual Property, and Administrative Agent shall be reimbursed for any reasonable, actual, out-of-pocket expenses incurred in connection therewith (including reasonable actually incurred attorneys’ fees and disbursements, and the payment by Borrower of the reasonable expense of an appraisal on behalf of Administrative Agent and Xxxxxx in case of Casualty or Condemnation affecting any Individual Property or any part thereof) out of such Award or Insurance Proceeds.

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5.1.9

Further Assurances. Borrower shall, at Xxxxxxxx’s sole cost and expense:

(a)

upon written request, furnish to Administrative Agent all instruments, documents, boundary surveys, footing or foundation surveys, certificates, plans and specifications, appraisals, title and other insurance reports and agreements, in each case to the extent in Borrower’s possession, and each and every other document, certificate, agreement and instrument required to be furnished by Borrower pursuant to the terms of the Loan Documents or which are reasonably requested by Administrative Agent in connection therewith, provided that the foregoing shall not require Borrower to obtain updated appraisals after the Closing Date unless specifically required by the terms of this Agreement;

(b)

execute and deliver to Administrative Agent such documents, instruments, certificates, assignments and other writings, and do such other acts reasonably necessary, to evidence, preserve and/or protect the collateral at any time securing or intended to secure the obligations of Borrower under the Loan Documents, as Administrative Agent may reasonably require; and

(c)

do and execute all and such further lawful and reasonable acts, conveyances and assurances for the better and more effective carrying out of the intents and purposes of this Agreement and the other Loan Documents, as Administrative Agent shall reasonably require from time to time;

provided, with respect to each of the foregoing clauses (a), (b) and (c), in no event shall any document, instrument, certificate, assignment or other writing furnished to Administrative Agent, or any act, conveyance or assurance given, pursuant to this Section 5.1.9 increase any obligations of Borrower or Guarantor or diminish any rights of Borrower or Guarantor beyond those intended by this Agreement and the other Loan Documents.

5.1.10

Supplemental Mortgage Affidavits. Borrower represents that it has paid all state, county and municipal recording and all other taxes imposed upon the execution and recordation of the Mortgages (or sufficient funds have been escrowed with the Title Company for such payment). If at any time during the continuance of an Event of Default Administrative Agent reasonably determines, based on applicable law, that Administrative Agent for the benefit of Lender is not being afforded the maximum amount of security available from any one or more of the Properties as a direct or indirect result of applicable recording, stamp and like taxes not having been paid upon the execution and recordation of any Mortgage, Xxxxxxxx agrees that Borrower will execute, acknowledge and deliver to Administrative Agent, promptly upon Administrative Agent’s request, supplemental affidavits increasing the amount of the Debt attributable to any such Individual Property (as set forth as the Allocated Loan Amount on Schedule 1.1(a) annexed hereto) for which all applicable taxes have been paid to an amount determined by Administrative Agent to be equal to the lesser of (a) the greater of the fair market value of the applicable Individual Property (i) as of the Closing Date and (ii) as of the date such supplemental affidavits are to be delivered to Administrative Agent, and (b) the amount of the Debt attributable to any such Individual Property (as set forth as the Allocated Loan Amount on Schedule 1.1(a) annexed hereto), and Borrower shall, on demand, pay any additional taxes.

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5.1.11

Financial Reporting.

(a)

Borrower will keep and maintain or will cause to be kept and maintained on a Fiscal Year basis, in accordance with the requirements for a Special Purpose Entity set forth herein and Approved Accounting Principles, proper and accurate books, records and accounts reflecting all of the financial affairs of Borrower and all items of income and expense in connection with the operation on an individual basis of the Properties. Administrative Agent and Lender shall have the right from time to time at all times during normal business hours upon reasonable notice (and, in any event, not more than twice in any calendar year (unless an Event of Default shall have occurred and be continuing, in which case no such restriction shall apply)) to examine such books, records and accounts at the office of Borrower or any other Person maintaining such books, records and accounts and to make such copies or extracts thereof as Administrative Agent and Lender shall desire. During the continuance of an Event of Default, Borrower shall pay any reasonable costs and expenses incurred by Administrative Agent to examine Xxxxxxxx’s accounting records with respect to the Properties, as Administrative Agent shall reasonably determine to be necessary or appropriate in the protection of Xxxxxx’s interest.

(b)

Borrower will furnish to Administrative Agent annually, within one hundred twenty (120) days following the end of each Fiscal Year commencing with the 2025 Fiscal Year financial statements, a complete copy of Borrower’s (or, at Borrower’s election, any direct or indirect owner of Borrower that owns no significant assets other than such ownership interest and the ownership of any intermediate holding companies that own no assets other than such ownership interest in Borrower (the “Reporting Entity”)) unaudited annual financial statements prepared in accordance with Approved Accounting Principles (the “Annual Financial Statements”). Such Annual Financial Statements shall set forth the financial condition and the results of operations for the Reporting Entity (on a combined basis) for such Fiscal Year, and shall include, but not be limited to, Net Operating Income, Gross Income from Operations and Operating Expenses. The Annual Financial Statements shall be accompanied by (i) intentionally omitted, (ii) a current rent roll for each Individual Property, (iii) if reasonably requested by Administrative Agent, a schedule detailing the Debt Yield calculation as of each Debt Yield Determination Date as of the last day of such Fiscal Year for the Properties on a combined basis and (iv) an Officer’s Certificate certifying (1) such Annual Financial Statements presents fairly the consolidated financial condition and the results of operations of the Reporting Entity in all material respects, (2) that Annual Financial Statements have been prepared in accordance with Approved Accounting Principles, and (3) whether, as of the date thereof, to the applicable officer’s knowledge, there exists an event or circumstance which constitutes an Event of Default under the Loan Documents executed and delivered by, or applicable to, Borrower, and if such officer has knowledge that an Event of Default exists, the nature thereof, the period of time it has existed and the action then being taken to remedy the same.

(c)

Intentionally omitted.

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(d)

Prior to any private or public securitizations of rated or unrated single-class or multi-class securities of the entire Loan permitted pursuant to the terms hereof (any such transaction, a “Securitization”), provided that Lender has the intent to effectuate a Securitization or is actively pursuing the Securitization of the Loan, if reasonably requested by Lender in connection with Xxxxxx’s efforts to effectuate a Securitization and provided that such request is not for a period in excess of six (6) months (in the aggregate during the term of the Loan), Borrower will furnish, or cause to be furnished, to Administrative Agent on or before sixty (60) days after the end of each calendar quarter following the date of such written request (other than the calendar quarter that ends concurrently with the end of the calendar year), (A) an operating statement in respect of such calendar quarter and a trailing twelve (12) month operating statement (on a combined basis with respect to the Properties, but excluding any periods prior to the Closing Date), noting Net Operating Income, Gross Income from Operations, Operating Expenses and for informational purposes only (and not for purposes of determining whether a Debt Yield Trigger Event has occurred), a schedule detailing the Debt Yield calculation for the Properties on a combined basis and containing a comparison of (I) in respect of the operating statement for such calendar quarter, the same calendar quarter in the immediately preceding calendar year, (II) intentionally omitted, and (III) upon Administrative Agent’s request, other information reasonably necessary and sufficient to fairly represent in all material respects the financial position and results of operation of the Properties (on a combined basis) during such calendar quarter and (B) a rent roll for the subject period for each Individual Property. Each such quarterly report shall be prepared on an accrual basis accompanied by an Officer’s Certificate stating that the items provided are true, correct, accurate, and complete in all material respects and fairly present the financial condition and results of the operations of Borrower and the Properties on a combined basis for the applicable period as well as, where applicable, the financial condition and results of operations of each Individual Property, for the applicable calendar quarter. The reports and statements provided by Borrower pursuant to this Section 5.1.11(d) may be prepared in accordance with the accounting standards otherwise utilized by Borrower on a consistent basis for interim financial reporting and need not be prepared in accordance with Approved Accounting Principles.

(e)

Borrower will furnish, or cause to be furnished, to Administrative Agent, on or before sixty (60) days after the end of each calendar quarter (other than a calendar quarter ending concurrently with the end of a Fiscal Year, in which case Section 5.1.11(b) shall apply) commencing with the calendar quarter ending on September 30, 2024 the following items, accompanied by an Officer’s Certificate stating that such items are true, correct, accurate, and complete in all material respects and fairly present the financial condition and results of the operations of Borrower and the Properties on a combined basis for the applicable period as well as, where applicable, the financial condition and results of operations of each Individual Property (subject to normal year-end adjustments) as applicable: (i) a rent roll for the subject period for each Individual Property, (ii) quarterly and trailing twelve (12) month operating statements prepared for each calendar quarter on an accrual basis, noting Net Operating Income, Gross Income from Operations and Operating Expenses for the Properties (on a combined basis but excluding any period prior to the Closing Date), and, upon Administrative Agent’s request, other information reasonably necessary and sufficient to fairly represent in all material respects the financial position and results of operation of the Properties (on a combined basis but excluding any period prior to the Closing Date) during such calendar quarter; and (iii) a calculation reflecting the Debt Yield as determined with respect to each Debt Yield Determination Date during the immediately preceding twelve (12) month period.

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(f)

For each annual budgeting period following the partial annual budgeting period commencing on the Closing Date, Borrower shall submit to Administrative Agent an Annual Budget not later than sixty (60) days after the end of Borrower’s Fiscal Year (the “Budget Submission Date”). In respect of the partial annual budgeting period commencing on the Closing Date, Xxxxxxxx has submitted the existing Annual Budget to Administrative Agent on or prior to the Closing Date. The Annual Budget shall be for informational purposes only, provided that, during any Cash Sweep Period, any new Annual Budget shall be subject to Administrative Agent’s written approval (but only to the extent Borrower has approval rights under the Management Agreement) if a Cash Sweep Cure Date in respect of such Cash Sweep Period does not occur prior to the Budget Submission Date (each such Annual Budget, an “Approved Annual Budget”), which approval shall not be unreasonably withheld or conditioned and shall be, provided no Event of Default has occurred and is continuing, deemed granted if the Deemed Approval Requirements have been satisfied with respect thereto. For the avoidance of doubt, the Annual Budget in effect as of the commencement of a Cash Sweep Period will be deemed approved and will not require any additional consent or approval from Administrative Agent. In the event that Administrative Agent timely disapproves a proposed Annual Budget in accordance with the foregoing, Administrative Agent shall promptly deliver to Borrower a reasonably detailed description of such objections and Borrower shall promptly revise such Annual Budget and resubmit the same to Administrative Agent (and each such resubmittal shall be subject to the provisions of this Section 5.1.11(f) as if the applicable proposed Annual Budget were being submitted to Administrative Agent for its initial review of the same (provided, that it is acknowledged that any resubmitted Annual Budget pursuant to this sentence shall not be subject to the time frames required in the first sentence of this Section 5.1.11(f)) and shall be, provided, no Event of Default has occurred and is continuing, deemed approved by Administrative Agent if the applicable Deemed Approval Requirements have been satisfied with respect to such resubmitted Annual Budget). Borrower shall promptly revise each proposed Annual Budget and resubmit the same to Administrative Agent in accordance with the foregoing until Administrative Agent approves the proposed Annual Budget or the Deemed Approval Requirements are satisfied. Until such time that Administrative Agent approves (or is deemed to approve) a proposed Annual Budget, the most recently Approved Annual Budget shall apply; provided that, (i) each line item of such Approved Annual Budget shall be increased by an amount equal to the percentage increase in the Consumer Price Index for the immediately preceding year (other than the line items in respect of (x) Taxes, Insurance Premiums, association fees and other expenses, including without limitation utilities expenses and Other Charges, which line items shall be adjusted to reflect actual increases in such expenses, (y) variable operating expenses that are directly related to increased revenues at the Properties, which line items shall reflect the actual expenses therefor and (z) life safety or emergency repairs, which Borrower shall be permitted to make any without the consent of Administrative Agent, subject to Section 5.1.21 hereof). Subject to the provisions of Section 5.1.21, in the event that, during any Cash Sweep Period, Xxxxxxxx proposes to incur an extraordinary operating expense or capital expense that is not consistent with the Approved Annual Budget and does not relate to an Approved Alteration (each an “Extraordinary Expense”), Borrower shall promptly deliver to Administrative Agent a reasonably detailed explanation of such proposed Extraordinary Expense for Administrative Agent’s approval, such approval not to be unreasonably withheld, conditioned or delayed.

(g)

Notwithstanding anything to the contrary contained in this Section 5.1.11, Net Operating Income, Gross Income from Operations, Operating Expenses, Debt Yield calculation, or any other metric defined by the terms of this Agreement, and to be included financial statements delivered to Administrative Agent pursuant hereto, shall not be required to be prepared in accordance with Approved Accounting Principles.

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(h)

Intentionally Omitted.

(i)

Borrower will cause Guarantor to furnish to Administrative Agent annually, within one hundred twenty (120) days following the end of each Fiscal Year of Guarantor, Guarantor’s (or, at Guarantor’s election, any 100% direct or indirect owner of Guarantor that owns no assets other than such ownership interest and the ownership of any intermediate holding companies that owns no assets other than such ownership interest in Guarantor) either (at Guarantor’s election) audited or unaudited financial statements prepared in accordance with Approved Accounting Principles and certified by Guarantor, which shall include an annual balance sheet and profit and loss statement of Guarantor (or, at Guarantor’s election, any 100% direct or indirect owner of Guarantor that owns no assets other than such ownership interest and the ownership of any intermediate holding companies that owns no assets other than such ownership interest in Guarantor). Notwithstanding the foregoing, if any Replacement Sponsor Guarantor is the Guarantor, then this Section 5.1.11(i) shall not apply.

(j)

If an Excess Cash Flow Guaranty is delivered to Administrative Agent pursuant to Section 7.5.2(c) of this Agreement, Borrower shall furnish to Administrative Agent, within fifteen (15) Business Days after the end of each calendar month in which the Excess Cash Flow Guaranty remains in effect, an Officer’s Certificate certifying to the amount of Guaranteed Excess Cash Flow as of such date, together with any back-up information with respect to the amount of Guaranteed Excess Cash Flow as may be reasonably requested by Administrative Agent.

(k)

Any reports, statements or other information required to be delivered under this Agreement shall be delivered in electronic form, provided that Borrower may elect to provide the same also in paper form and/or on a data storage device.

(l)

Except as expressly set forth in this Agreement and the other Loan Documents, neither Xxxxxxxx, nor Guarantor shall have any obligation to furnish to Administrative Agent or its agents or representatives any additional reports, statements or information with respect to the operation of the Properties or the financial affairs of Borrower or Guarantor or any Affiliate Manager.

(m)

Notwithstanding anything to the contrary, at any time, Borrower shall have the right, but not the obligation, to provide to Administrative Agent updates, supplements, amendments or revisions to all or any portion of the reporting required under this to Section 5.1.11 and any other information relating to the Properties, the Borrower or the performance of the Properties (each, a “Borrower Reporting Update”).

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5.1.12

Business and Operations. Borrower will continue to engage in the businesses presently conducted by it or the Permitted Uses as and to the extent the same are necessary for the ownership, maintenance, management, leasing and operation of the Properties, and it being understood and agreed that a temporary closure or minimization of operations at the Properties as a result of a Force Majeure event shall not be deemed a breach of this covenant. Borrower will qualify to do business and will remain in good standing under the laws of each jurisdiction as and to the extent the same are required for the ownership, maintenance, management and operation of the Properties. Borrower shall, at all times during the term of the Loan, continue to own or lease (or Manager, as agent for Borrower, in accordance with the Management Agreement, shall lease) all Equipment, Fixtures and Personal Property which are necessary to operate the Properties in accordance with the Permitted Uses, provided that the foregoing shall not be deemed to prohibit or restrict any Permitted Equipment Transfer.

5.1.13

Title to the Properties. Borrower will warrant and defend (a) the title to each Individual Property and every part thereof, subject only to Liens permitted hereunder (including Permitted Encumbrances) and (b) the validity and priority of the Liens of the Mortgages on the Properties, subject only to Liens permitted hereunder (including Permitted Encumbrances), in each case against the claims of all Persons whomsoever. Xxxxxxxx shall reimburse Administrative Agent and Xxxxxx for any Losses incurred by Administrative Agent or Lender if an interest in any Individual Property, other than as permitted hereunder, is claimed by another Person.

5.1.14

Costs of Enforcement. In the event (a) that any Mortgage encumbering one or more Individual Properties is foreclosed in whole or in part or that such Mortgage is put into the hands of an attorney for collection, suit, action or foreclosure, (b) of the foreclosure of any mortgage prior to or subsequent to the Mortgage encumbering any Individual Property in which proceeding Administrative Agent and/or Lender is made a party, or (c) of the bankruptcy, insolvency, rehabilitation or other similar proceeding in respect of Borrower, Guarantor or any of their respective constituent Persons or an assignment by Xxxxxxxx, Guarantor or any of their respective constituent Persons for the benefit of its creditors, Borrower, and their successors or assigns, shall be chargeable with and agree to pay all costs of collection and defense, including reasonable actually incurred attorneys’ fees, costs and expenses, incurred by Administrative Agent and/or Lender in connection therewith (but excluding regular servicing fees) and in connection with any appellate proceeding or post‑judgment action involved therein, together with all required service or use taxes and interest at the Default Rate.

5.1.15

Estoppel Statement. After written request by Administrative Agent, Borrower shall within fifteen (15) days furnish Administrative Agent with a statement, duly acknowledged and certified, setting forth (i) the original principal amount of the Loan, (ii) the unpaid principal amount of the Loan, (iii) the Interest Rate of the Loan, (iv) the date installments of interest and/or principal were last paid, (v) any offsets or defenses to the payment of the Debt, if any, claimed by Xxxxxxxx, and (vi) that the Note, this Agreement, the Mortgages and the other Loan Documents are valid, legal and binding obligations and have not been modified or if modified, giving particulars of such modification; provided, however, Borrower shall not be required to provide such statement more often than two (2) times in any calendar year.

5.1.16

Loan Proceeds. Borrower shall use the proceeds of the Loan received by it on the Closing Date only for the purposes set forth in Section 2.1.5 hereof.

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5.1.17

Intentionally Omitted.

5.1.18

Intentionally Omitted.

5.1.19

Intentionally Omitted.

5.1.20

Leasing Matters.

(a)

Notwithstanding anything to the contrary set forth herein, Administrative Agent’s consent shall not be required in connection with (i) any residential Lease (including any amendment, modification or termination thereof), (ii) any commercial Lease (including any amendment, modification or termination thereof), (iii) intentionally omitted, (iv) any renewals, expansions or extensions of any commercial Lease, (v) Leases that constitute a license to use immaterial portions of an Individual Property solely for storage and/or parking purposes, and (vi) any Excluded Lease. Upon request, Xxxxxxxx shall furnish Administrative Agent with executed copies of such Leases as are identified by Administrative Agent (including all Leases, if requested by Administrative Agent, provided that Borrower shall not be required to deliver copies of all Leases more frequently than one (1) time in any calendar year). All Leases with Affiliates (other than Leases to an Affiliate Manager for space used in connection with the property management of property belonging to Borrower or its Affiliates) or renewals thereof (other than contractual renewal options set forth in an existing Lease) shall be on commercially reasonable terms, shall not contain any terms which would have any materially adverse effect on Lender’s or Administrative Agent’s rights under the Loan Documents or the value of the applicable Individual Property and shall be on terms which are substantially similar to those available in an arm’s length transaction with an unrelated party. All Leases executed after the Closing Date shall provide that they are subordinate to the Mortgage encumbering the applicable Individual Property and, with respect to commercial Leases only, that the Tenant under such Lease agrees to attorn to Administrative Agent or any purchaser at a sale by foreclosure or power of sale (provided, such Leases may provide that the foregoing is conditioned upon the delivery by Administrative Agent of a subordination, attornment and non-disturbance agreement). Administrative Agent, at the request of Xxxxxxxx and at Borrower’s sole cost and expense, shall enter into a subordination, attornment and non-disturbance agreement with any Tenant entering into a commercial Lease after the Closing Date in the form required under the applicable commercial Lease so long as such form is on commercially reasonable terms, or if no such specific form is required, the form attached hereto as Exhibit B or in such other form that is reasonably satisfactory to Administrative Agent and such Tenant (provided in each case that Administrative Agent shall agree to modifications reasonably required by the applicable Tenant, and on commercially reasonable terms, including, but not limited to, modifications to reflect an obligation on behalf of Administrative Agent to release any casualty or condemnation proceeds in connection with any restoration required pursuant to a Lease) (a “Non-Disturbance Agreement”) (other than a Lease to (x) a Tenant which is a Controlled subsidiary of Sponsor, so long as Sponsor Controls Borrower or (y) if Sponsor does not Control Borrower, an Affiliate of Borrower) after the Closing Date. In addition, with respect to a request by a Tenant under a commercial Lease, a statement that following a foreclosure by Administrative Agent, Administrative Agent shall be subject to any offset, rent abatement or self-help rights which such Tenant may be entitled to assert against the prior landlord pursuant to the terms of the applicable Lease or required by law shall be deemed a commercially reasonable term for purposes of this Section 5.1.20(a), and Administrative Agent may not condition its approval or delivery of any Non-Disturbance Agreement, including with respect to any such offset, rent abatement or self-help rights, upon the receipt of any reserves, any free rent, tenant improvements or leasing commissions guaranty, Letters of Credit or any increases to the amounts guaranteed by any such guaranty, if any, or covered by any Letter of Credit previously delivered with respect to any free rent, tenant improvements or leasing commissions. Administrative Agent shall promptly respond, at Xxxxxxxx’s sole cost and expense, to any request by a Tenant under a commercial Lease for an amendment to an existing Non-Disturbance Agreement. All actual and reasonable, out‑of‑pocket costs and expenses of Administrative Agent in connection with the negotiation, preparation, execution and delivery by Administrative Agent of any Non-Disturbance Agreement, including, without limitation, reasonable actually incurred attorneys’ fees and disbursements (provided such attorneys’ fees and expenses in connection with any Non-Disturbance Agreement and/or any review of any Lease related to such Non-Disturbance Agreement shall not exceed $5,000.00 in the aggregate) shall be paid by Borrower.

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(b)

Borrower shall, subject to Force Majeure, (i) observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner (which may include rent deferrals and abatements) and (ii) except as otherwise provided in Section 5.2.5 and Section 5.2.14, enforce the terms, covenants and conditions contained in the Leases upon the part of the Tenant thereunder to be observed or performed in a commercially reasonable manner and in a manner not to impair the value of the Individual Property involved.

(c)

At any time that Administrative Agent’s approval is required under this Section 5.1.20, provided no Event of Default is continuing, Administrative Agent’s approval shall be deemed granted if the Deemed Approval Requirements have been satisfied with respect thereto.

5.1.21

Alterations.

(a)

Borrower shall obtain Administrative Agent’s prior written consent to any alterations or improvements to (or demolitions of) any Improvements (“Alterations”), including tenant improvements, which consent shall not be unreasonably withheld, conditioned, or delayed except with respect to Alterations that would reasonably be expected to result in an Individual Material Adverse Effect on the applicable Individual Property. Notwithstanding the foregoing, Administrative Agent’s consent shall not be required in connection with any (i) repairs based on life safety or emergency conditions or which are required to comply with applicable Legal Requirements, (ii) Preapproved Alterations, (iii) non-structural or decorative work performed in the ordinary course of Xxxxxxxx’s business, (iv) Alterations, the then remaining cost of which to complete, when taken in the aggregate with the then remaining cost to complete all other Alterations then ongoing that would otherwise require Administrative Agent’s prior written consent under this Section 5.1.21 (other than Alterations described in the other subsections of this sentence), is less than the Alterations Threshold Amount; (v) Alterations made pursuant to an Approved Annual Budget; (vi) Alterations with respect to any existing Lease as of the Closing Date or any Lease entered into in accordance with the terms and conditions of Section 5.1.20; (vii) Alterations and repairs arising out of a Casualty or Condemnation in accordance with the terms and conditions hereof; (viii) the Required Repairs, (ix) any installation or any other addition of antenna or solar panels or solar facilities at any Individual Property, (x) any repairs required by the Loan Documents, (xi) unit renovations, (xii) amenity upgrades, (xiii) Alterations made by a Tenant under a commercial Lease or (xiv) any Alterations made on or to any Undeveloped Land or any Pre-Identified Release Parcel (clauses (i) through (xiv), the “Approved Alterations”). At any time that Administrative Agent’s approval is required under this Section 5.1.21(a), provided no Event of Default is continuing, Administrative Agent’s approval shall be deemed granted if the Deemed Approval Requirements have been satisfied with respect thereto.

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(b)

If the total unpaid amounts due and payable with respect to Alterations requiring Administrative Agent’s prior written consent at the Properties in the aggregate (other than such amounts (x) to be paid or reimbursed by Tenants under the Leases, (y) to be paid in respect of Approved Alterations with respect to such Properties and (z) on deposit in the Reserve Accounts and which are permitted to be used for such Alterations in accordance with this Agreement) shall at any time exceed the Alterations Threshold Amount, Borrower shall promptly deliver to Administrative Agent as security for the payment of such excess amounts and as additional security for Borrower’s obligations under the Loan Documents any of the following with respect to such Alteration exceeding the Alterations Threshold Amount (as applicable, the “Alterations Deposit”): (I) cash, (II) U.S. Obligations, (III) other securities having a rating reasonably acceptable to Administrative Agent, (IV) a completion and performance bond or an irrevocable Letter of Credit (payable on sight draft only) issued by a financial institution having a rating by S&P of not less than “A‑1+” if the term of such bond or Letter of Credit is no longer than three (3) months or, if such term is in excess of three (3) months, issued by a financial institution having a rating that is reasonably acceptable to Administrative Agent or (V) a guaranty executed by Alterations Guarantor in favor of Administrative Agent for benefit of Xxxxxx in a form reasonably acceptable to Administrative Agent (an “Alterations Guaranty”); provided, that in the event that Borrower elects to deliver an Alterations Guaranty pursuant to this Section 5.1.21(b), if the Additional Insolvency Opinion Condition is satisfied, then Borrower shall deliver an Additional Insolvency Opinion reasonably acceptable to Administrative Agent which takes into account such Alterations Guaranty. Each such Alterations Deposit shall be (A) in an aggregate amount equal to the excess of the total unpaid amounts with respect to the applicable Alterations on the applicable Individual Property (other than such amounts (x) to be paid or reimbursed by Tenants under the Leases, (y) to be paid in respect of Approved Alterations with respect to such Properties and (z) on deposit in the Reserve Accounts and which are permitted to be used for such Alterations in accordance with this Agreement) over the Alterations Threshold Amount and (B) disbursed or released, as applicable, from time to time by Administrative Agent to Borrower for completion of the Alterations at the applicable Individual Property upon the satisfaction of the following conditions: (1) Borrower shall submit a request for payment to Administrative Agent at least ten (10) days prior to the date on which Borrower requests that such payment be made, which request for payment shall specify the Alterations for which payment is requested, (2) on the date such payment is to be made, no Event of Default shall be continuing, and (3) such request shall be accompanied by an Officer’s Certificate (x) stating that the applicable portion of the Alterations at the applicable Individual Property to be funded by the requested disbursement have been completed in good and workmanlike manner and in accordance with all applicable Legal Requirements, in all material respects, such Officer’s Certificate to be accompanied by copies of invoices paid (or to be paid) in excess of $250,000 and any material licenses, permits or other approvals by any Governmental Authority required in connection with the applicable portion of the Alterations, (y) identifying each contractor to be paid by Borrower that supplied materials or labor in connection with the applicable portion of the Alterations to be funded by the requested disbursement and (z) stating that each such contractor has been paid or will be paid the amounts then due and payable to such contractor in connection with the funds to be disbursed. Each Alterations Deposit shall (if held in cash) be held by Administrative Agent in an interest-bearing account and, until disbursed or released in accordance with the provisions of this Section 5.1.21(b), shall constitute additional security for the Debt and other obligations under the Loan Documents. Upon the completion of the Alterations in respect of which any Alteration Deposit is being held, Administrative Agent shall promptly return to Borrower any remaining portion of the Alterations Deposit upon the request of Borrower, provided that (1) on the date such disbursement is to be made, no Event of Default shall be continuing and (2) such request shall be accompanied by an Officer’s Certificate stating that the Alterations have been fully completed in good and workmanlike manner and in accordance with all applicable Legal Requirements, in all material respects, such Officer’s Certificate to be accompanied by copies of paid invoices or copies of invoices to be paid, as applicable, in each case, with respect to any invoices in excess of $250,000 and any material licenses, permits or other approvals by any Governmental Authority required in connection with Alterations and stating that each contractor providing services in connection with the Alterations has been paid in full or will have been paid in full upon such disbursement, in each case, to the extent not received by Administrative Agent in connection with prior disbursement requests.

(c)

Notwithstanding anything to the contrary herein, so long as funded out of cash flow of an Individual Property or equity contributions of Borrower, any obligations incurred by Borrower in connection with Approved Alterations shall not be deemed to be Indebtedness hereunder.

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5.1.22

Operation of Property.

(a)

Borrower shall cause the Properties to be operated, in all material respects, in accordance with the Management Agreement. In the event that the Management Agreement expires or is terminated (without limiting any obligation of Borrower to obtain Administrative Agent’s consent to any termination or modification of the Management Agreement in accordance with the terms and provisions of this Agreement), Borrower shall promptly enter into a Replacement Management Agreement with Manager or another Qualified Manager, as applicable.

(b)

Borrower shall: (i) promptly perform and/or observe, in all material respects, all of the covenants and agreements required to be performed and observed by it under the Management Agreement and do all things reasonably necessary (using its prudent business judgment) to preserve and to keep unimpaired its material rights thereunder; (ii) promptly notify Administrative Agent of any material default under the Management Agreement of which it is aware; and (iii) enforce the performance and observance in all material respects of all of the covenants and agreements required to be performed and/or observed by Manager under the Management Agreement, in a commercially reasonable manner.

5.1.23

PILOT Lease.

(a)

Any Individual Borrower (in its capacity as lessee under the applicable PILOT Lease in accordance herewith, the “PILOT Lessee”) shall have the right, without the consent of Administrative Agent, to enter into a PILOT Lease with respect to the entirety of such fee interest to provide the applicable PILOT Property with the benefit of an arrangement for payments of lieu of taxes (any such arrangement, a “Permitted PILOT Arrangement”), subject to the following terms and conditions:

(i)

At the time the PILOT Lease is entered into, no Event of Default has occurred and is continuing;

(ii)

The form of PILOT Lease shall be (x) substantially in the form of a PILOT Lease previously approved by Administrative Agent or (y) subject to Administrative Agent’s reasonable approval;

(iii)

The PILOT Lessee shall enter into a leasehold Mortgage (each, a “PILOT Leasehold Mortgage”) for the benefit of Administrative Agent for the benefit of Lender encumbering its leasehold interest under the applicable PILOT Lease (which Mortgage shall also encumber the applicable PILOT Lessee’s fee interest in any property or collateral of the applicable PILOT Lessee that was not deeded to the applicable PILOT Lessor and/or is not subject to the applicable PILOT Lease), which PILOT Leasehold Mortgage shall be (x) substantially in the form of a PILOT Leasehold Mortgage previously approved by Administrative Agent (with such modifications as are reasonably required for compliance with applicable law and/or local recording requirements) or (y) such other form of leasehold Mortgage as shall be reasonably acceptable to Administrative Agent;

(iv)

If customarily provided (in Borrower’s reasonable determination) by the applicable PILOT Lessor or expressly provided for in the PILOT Lease, the proposed PILOT Lessor shall enter into a fee Mortgage or a joinder to the PILOT Leasehold Mortgage encumbering the PILOT Lessor’s fee interest under the PILOT Lease (each a “PILOT Lessor Mortgage”), the form of which shall (x) substantially in the form of a PILOT Lessor Mortgage previously approved by Administrative Agent (with such modifications as are reasonably required for compliance with applicable law and/or local recording requirements) or (y) subject to Administrative Agent’s reasonable approval;

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(v)

If the Permitted PILOT Arrangement includes a bond financing, the form of any PILOT Bonds shall be (x) substantially in the form of a PILOT Bonds previously approved by Administrative Agent or (y) subject to Administrative Agent’s reasonable approval;

(vi)

If the Permitted PILOT Arrangement includes a bond financing, all PILOT Bonds issued in connection with a Permitted PILOT Arrangement shall be held at all times by the applicable PILOT Lessee and shall be pledged to Administrative Agent for the benefit of Lender pursuant to a pledge agreement (a “PILOT Bond Pledge Agreement”), which proposed PILOT Bond Pledge Agreement shall be (x) substantially in the form of a PILOT Bond Pledge Agreement previously approved by Administrative Agent or (y) subject to Administrative Agent’s reasonable approval;

(vii)

The applicable PILOT Lessee shall provide to Lender (1) a Title Insurance Policy in form and substance reasonably acceptable to Administrative Agent (or an endorsement to the Title Insurance Policy for such PILOT Property delivered to Administrative Agent on the Closing Date in form reasonably acceptable to Administrative Agent) in the amount of the Allocated Loan Amount for the applicable PILOT Property (provided such Title Insurance Policy shall be deemed reasonably acceptable to the extent (x) it contains endorsements substantially similar to those contained in Title Insurance Policy for such PILOT Property delivered to Administrative Agent on the Closing Date (to the extent such endorsements are applicable to such PILOT Property) and (y) does not contain any title exceptions which (i) are not Permitted Encumbrances, (ii) were not contained in Title Insurance Policy for such PILOT Property delivered to Administrative Agent on the Closing Date or (iii) are unrelated to the PILOT Documents) and (2) a legal opinion from Borrower’s counsel in the state where the PILOT Property is located and resolutions of Borrower with respect to the PILOT Leasehold Mortgage, in each case, in substantially the form delivered with respect to the Mortgage for the PILOT Property on the Closing Date (or such other forms as reasonably approved by Administrative Agent); and

(viii)

Borrower shall pay any and all actual and reasonable out of pocket costs actually incurred in connection with this clause (a) (including, without limitation, Administrative Agent’s reasonable counsel fees and disbursements and all recording fees, title insurance premiums and mortgage and intangible taxes).

Notwithstanding anything to the contrary contained in this Agreement or the other Loan Documents, at any time, a PILOT Lessee shall be permitted, without the consent of Administrative Agent, to redeem, terminate or cancel any PILOT Lease and the related PILOT Documents in connection with the acquisition of the fee interest held by the applicable PILOT Lessor in accordance with the terms of the PILOT Lease and the Loan Documents.

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(b)

Except in connection with a PILOT Xxxxxx’s acquisition of fee title to the fee estate held by a PILOT Lessor in accordance with the terms hereof, such PILOT Lessee shall not, without the prior written consent of Administrative Agent, which consent shall not be unreasonably delayed or withheld, surrender the leasehold estate created by the applicable PILOT Lease or terminate or cancel such PILOT Lease or modify, change, supplement, alter or amend such PILOT Lease, in writing in any material respect. Any termination, cancellation, modification, change, supplement, alteration or amendment of any PILOT Document in any material respect without the prior written consent of Administrative Agent (to the extent required by this Section 5.1.23) shall be void ab initio and of no force and effect; provided, notwithstanding anything to the contrary herein, Administrative Agent’s consent shall not be required in order for Borrower to assign and/or transfer any PILOT Documents to any transferee which acquires a PILOT Property in connection with a Permitted Assumption or an Approved Drop Down (provided that such transferee provides Administrative Agent for the benefit of Lender collateral with respect to the applicable PILOT Documents that is substantially similar to the collateral provided by the related Borrower to Administrative Agent for the benefit of Xxxxxx as of the Closing Date).

(c)

If a PILOT Lessee shall default in the performance or observance of any material term, covenant or condition of the applicable PILOT Lease on the part of such PILOT Lessee to be performed or observed beyond all applicable cure and/or notice periods, then, without limiting the generality of the applicable Mortgage, this Agreement and the other Loan Documents, and without waiving or releasing such PILOT Lessee from any of its obligations hereunder, Administrative Agent shall have the right (upon written notice to such PILOT Lessee and provided that Borrower shall not have notified Administrative Agent or does not notify Administrative Agent within ten (10) Business Days of receipt of such request of Administrative Agent, that (i) such default has been cured (and provides Administrative Agent with reasonably satisfactory evidence of the same), (ii) Borrower intends to release the applicable PILOT Property in accordance with Section 2.6.1, or (iii) Borrower intends to acquire fee title to the fee estate held by a PILOT Lessor in accordance with the terms hereof and the terms of the applicable PILOT Lease) but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the material terms, covenants and conditions of the applicable PILOT Lease on the part of such PILOT Lessee to be performed or observed on behalf of such PILOT Lessee, to the end that the rights of such PILOT Xxxxxx in, to and under the applicable PILOT Lease shall be kept unimpaired as a result thereof and free from default. If Administrative Agent shall make any payment or perform any act or take action in accordance with the preceding sentence, Administrative Agent will notify such PILOT Xxxxxx of the making of any such payment, the performance of any such act or the taking of any such action. In any such event, Administrative Agent and any Person designated as Administrative Agent’s agent by Administrative Agent shall have, and are hereby granted, subject to the rights of the applicable PILOT Lessor and the rights of Tenants, the right to enter upon the applicable PILOT Property at any reasonable time, on reasonable written notice and from time to time for the purpose of taking any such action. Administrative Agent may pay and expend such sums of money as Administrative Agent reasonably deems necessary for any such purpose and upon so doing shall be subrogated to any and all rights of such PILOT Xxxxxx. All costs and expenses incurred by Administrative Agent to cure or attempt to cure any such default shall be paid by the applicable PILOT Lessee to Administrative Agent, within five (5) Business Days after demand, together with interest thereon from the day of such payment at the Interest Rate. If payment is not made within such five (5) Business Day period, such PILOT Lessee shall pay interest thereon from the day such payment is due at the Default Rate. Unless prohibited by applicable Legal Requirements, all sums so paid and expended by Administrative Agent and the interest thereon shall be secured by the legal operation and effect of the applicable Mortgage.

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(d)

If a PILOT Lessor shall deliver to Administrative Agent a copy of any notice of default under any PILOT Lease sent by such PILOT Lessor to the applicable PILOT Lessee, such notice shall constitute full protection to Administrative Agent for any action taken or omitted to be taken by Administrative Agent in accordance with this Section 5.1.23, in good faith, in reliance thereon. Except with respect to the Mortgage, such PILOT Lessee will not subordinate or consent to the subordination of the applicable PILOT Lease to any mortgage, security deed, lease or other interest on or in such PILOT Xxxxxx’s interest in all or any part of any fee interest in the applicable PILOT Property, unless, in each such case, the written consent of Administrative Agent shall have been first had and obtained.

(e)

In connection with any purchase of the fee interest in any PILOT Property pursuant to the applicable PILOT Lease, such PILOT Lessee shall (i) pay all amounts due under the applicable PILOT Lease, including, without limitation, rent payments and attorneys’ fees, and (ii) request, and use diligent efforts to obtain a quitclaim deed and bill of sale, such that, upon such expiration or termination of the applicable PILOT Lease, such quitclaim deed in favor of such PILOT Lessee shall be recorded in the land records simultaneously therewith. In connection with the acquisition of the fee interest in the applicable PILOT Property by such PILOT Xxxxxx, upon the written request of such PILOT Xxxxxx, Administrative Agent agrees to promptly provide a release of all Liens relating to the applicable PILOT Lease.

(f)

When a PILOT Xxxxxx becomes the owner of fee title to the applicable PILOT Property upon termination of the PILOT Lease or otherwise, the lien of the applicable Mortgage shall spread to cover such fee title. If reasonably requested by Administrative Agent, such PILOT Xxxxxx agrees, at its sole cost, including without limitation Administrative Agent’s reasonable actually incurred attorneys’ fees, to (i) execute all documents reasonably necessary to subject the fee title to the applicable PILOT Property to the lien of the Mortgage; (ii) to the extent the Title Insurance Policy did not the insure the same as of the Closing Date, provide to Administrative Agent a title insurance policy insuring that the lien of the Mortgage is a first lien on such fee title (or an endorsement to the Title Insurance Policies) and (iii) solely to the extent a new Loan Document is delivered pursuant to clause (i), deliver a due authority, execution and enforceability opinion reasonably acceptable to Administrative Agent with respect to such Loan Document.

(g)

Each PILOT Lessee shall: (i) subject to Section 5.1.23(a), pay all sums required to be paid by such PILOT Lessee under and pursuant to the applicable PILOT Lease, as and when such payment is payable, (ii) perform and observe all of the terms, covenants and conditions of the applicable PILOT Lease on the part of such PILOT Lessee to be performed and observed in all material respects and (iii) promptly notify Administrative Agent of the receipt by any PILOT Lessee of any written notice claiming the occurrence of any default under any PILOT Lease and promptly upon receipt thereof, each PILOT Lessee shall deliver to Administrative Agent a copy of any such written notice (and such notice shall constitute full protection to Administrative Agent for any action taken or omitted to be taken by Administrative Agent, in good faith, in reliance thereon and in accordance with this Section 5.1.23) and (iv) enforce all of the obligations of each other party under the applicable PILOT Lease in a commercially reasonable manner and in a manner not to impair the value of the Individual Property involved. Notwithstanding anything to the contrary contained herein, Administrative Agent acknowledges that all payments under any PILOT Bond may be made by Borrower via ledger or book entry only.

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5.1.24

Intentionally Omitted.

5.1.25

Updated Appraisals. During the continuance of an Event of Default, Administrative Agent may commission (or Administrative Agent may request that Borrower commission directly) an updated appraisal of one or more of the Properties then remaining subject to the Lien of a Mortgage. Borrower shall pay directly or promptly reimburse Administrative Agent for, as applicable, the reasonable and actual out-of-pocket costs and expenses of obtaining all such updated appraisals.

5.1.26

Principal Place of Business, State of Organization. Upon Administrative Agent’s request, Borrower shall, at Borrower’s sole cost and expense, execute and deliver additional financing statements (which financing statements may describe as the collateral covered thereby “all assets of the debtor, whether now owned or hereafter acquired” or words to that effect), security agreements and other instruments which may be necessary to effectively evidence or perfect Administrative Agent’s security interest in each Individual Property as a result of any change in its principal place of business or place of organization. Borrower shall cause its principal place of business and chief executive office, and the place where Xxxxxxxx keeps its books and records, including recorded data of any kind or nature, regardless of the medium or recording, including software, writings, plans, specifications and schematics, to continue to be the address of Borrower set forth at the introductory paragraph of this Agreement (unless Borrower notifies Administrative Agent in writing at least thirty (30) days prior to the date of such change). Borrower shall promptly notify Administrative Agent of any change in its organizational identification number. If any Borrower does not now have an organizational identification number and later obtains one, such Borrower promptly shall notify Administrative Agent of such organizational identification number. Borrower shall at all times remain (x) a single member Delaware limited liability company, or (y) a Delaware limited partnership with two partners, (1) one limited partner and (2) one general partner that is a single-member Delaware limited liability company that is wholly owned by the limited partner.

5.1.27

Embargoed Person. Borrower shall perform reasonable due diligence to insure that at all times throughout the term of the Loan, including after giving effect to any Transfers permitted pursuant to the Loan Documents, (a) none of the funds or other assets of Borrower, any SPE Constituent Entity and Guarantor shall constitute property of, or are beneficially owned, directly or indirectly, by any Embargoed Person, with the result that the investment in Borrower, any SPE Constituent Entity or Guarantor, as applicable (whether directly or indirectly), is prohibited by law or the Loan is in violation of law; (b) no Embargoed Person shall have any interest of any nature whatsoever in Borrower, any SPE Constituent Entity or Guarantor, as applicable, with the result that the investment in Borrower, any SPE Constituent Entity or Guarantor, as applicable (whether directly or indirectly), is prohibited by law or the Loan is in violation of law; and (c) none of the funds of Borrower, any SPE Constituent Entity or Guarantor, as applicable, shall be derived from, or are the proceeds of, any unlawful activity, including money laundering, terrorism or terrorism activities, with the result that the investment in Borrower, any SPE Constituent Entity or Guarantor, as applicable (whether directly or indirectly), is prohibited by law or the Loan is in violation of law, or may cause any Individual Property to be subject to forfeiture or seizure.

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5.1.28

Special Purpose Entity/Separateness. (a) Borrower shall not engage in any business other than (i) as set forth in clause (i) of the definition of “Special Purpose Entity”, (ii) entering into financing and refinancing of the Properties as permitted by this Agreement and (iii) transacting any and all lawful business that is incident, necessary and appropriate to accomplish the foregoing. No SPE Constituent Entity shall engage in any business other than (i) acting as general partner of the limited partnership that owns, any one or more Individual Properties or acting as a member of the limited liability company that owns any one or more Individual Properties, as applicable and (ii) transacting any and all lawful business that is incident, necessary and appropriate to accomplish the foregoing.

(b)

Borrower shall not have any Indebtedness other than as set forth in clause (xxiii)(I) of the definition of “Special Purpose Entity”; provided, however, that this covenant shall not require any shareholder, owner, partner or member of Borrower to make capital contributions or loans to Borrower. Each SPE Constituent Entity shall have no Indebtedness other than (i) liabilities of such SPE Constituent Entity as a general partner and/or limited partner of a limited partnership including, with respect to the Previously-Owned Property Borrower, the Previously-Owned Property, in the capacity as such and (ii) liabilities incurred in the ordinary course of business relating to the ownership and operation of the Borrower in which it holds an interest in and routine administration of the Borrower in which it holds an interest in, provided that (x) the outstanding liabilities at any time shall not exceed $25,000.00 and (y) such liabilities are normal and reasonable under the circumstances; provided, however, that this covenant shall not require any shareholder, owner, partner or member of an SPE Constituent Entity to make capital contributions or loans to any such entity. Without limiting the foregoing, Borrower shall not incur any PACE Debt without the prior written consent of Administrative Agent in its sole discretion.

(c)

Neither Borrower nor any SPE Constituent Entity shall assume or guaranty or become obligated for the debts of any Person, pledge its assets for the benefit of any other Person, or hold out its credit as being available to satisfy the obligations of any other Person (other than with respect to any Borrower, another Borrower).

(d)

Borrower and each SPE Constituent Entity shall each be and continue to be a Special Purpose Entity.

(e)

Borrower and each SPE Constituent Entity will comply with all of the stated facts and assumptions made with respect to Borrower and each SPE Constituent Entity in the Insolvency Opinion. Borrower and each SPE Constituent Entity will comply with all of the stated facts and assumptions made with respect to Borrower in any Additional Insolvency Opinion. Each entity other than Borrower and each SPE Constituent Entity with respect to which an assumption is made or a fact stated in the Insolvency Opinion and any Additional Insolvency Opinion will comply with all of the assumptions made and facts 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, it shall provide an updated certification regarding compliance with the facts and assumptions made therein.

(f)

Borrower shall provide Administrative Agent with five (5) Business Days’ prior written notice prior to the removal of an Independent Director or Independent Manager of Borrower or any SPE Constituent Entity and Borrower shall not remove any such Independent Director or Independent Manager without Cause (as defined in the organizational documents of Borrower or such SPE Constituent Entity, as applicable).

5.1.29

Access Laws. Borrower covenants and agrees to give prompt notice to Administrative Agent of the receipt by Borrower of any material violations or written allegations of alleged material violations of any Access Laws and of the commencement of any governmental or judicial proceedings or investigations which relate to compliance with any such Access Laws.

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5.1.30

Required Repairs. Borrower shall use commercially reasonable efforts to perform (or cause the performance of) the immediate repairs at the Properties as set forth on Schedule 5.1.30 (the “Required Repairs”). Upon Administrative Agent’s request, Borrower shall provide evidence reasonably acceptable to Administrative Agent of the completion of such Required Repairs, provided, that in no event shall Borrower be required to provide evidence of completion for any repair the estimated cost of which is less than $20,000 (as set forth in the applicable Property Condition Report).

5.1.31

Fremont Ground Lease. Notwithstanding anything to the contrary in this Agreement or the other Loan Documents (including, without limitation, the other provisions of this Article V), Borrower may, without the consent of (or notice to) Lender amend, modify, supplement and/or terminate the Fremont Ground Lease (each, a “Fremont Ground Lease Modification”).

5.1.32

Condominium. Borrower covenants and agrees that:

(a)

it will comply (or vote to cause the Condominium to comply) in all material respects with all of the terms, covenants and conditions on its part to be complied with, pursuant to the Condominium Documents and any rules and regulations that may be adopted for any Condominium, as applicable, as the same shall be in force and effect from time to time except for violations or defaults that would not reasonably be expected to result in an Aggregate Material Adverse Effect or Individual Material Adverse Effect; and

(b)

it will not, without the prior written consent of the Agent, except as expressly permitted pursuant to this Agreement, take any action to terminate any Condominium or withdraw any Condominium from the applicable Condominium Law.

Section

5.2 Negative Covenants. From the Closing Date until payment and performance in full of all obligations of Borrower under the Loan Documents or the earlier release of the Lien of the Mortgages in accordance with the terms of this Agreement and the other Loan Documents, Borrower covenants and agrees with Administrative Agent and Xxxxxx that it will not do, directly or indirectly, any of the following:

5.2.1

Operation of Property. Borrower shall not, without Administrative Agent’s prior written consent (which consent shall not be unreasonably withheld) and except with respect to an Individual Property in connection with the release of such Individual Property in accordance with this Agreement: (i) surrender, terminate or cancel the Management Agreement; provided, that Borrower may, without Administrative Agent’s consent, replace the Manager so long as (A) the replacement manager is a Qualified Manager pursuant to a Replacement Management Agreement (provided that, in the event that such Qualified Manager is an Affiliate of Borrower or Guarantor, at the written request of Administrative Agent, Borrower shall deliver an acceptable Additional Insolvency Opinion covering such Qualified Manager if such Qualified Manager was not covered by the Insolvency Opinion) or (B) the proposed replacement manager is a Person that is under common Control with Existing Manager; (ii) reduce or consent to the reduction of the term of the Management Agreement; (iii) increase or consent to the increase of the amount of any charges under the Management Agreement in a manner that would reasonably be expected to have an Individual Material Adverse Effect, (iv) otherwise modify, change, supplement, alter or amend, or waive or release any of its rights and remedies under, the Management Agreement in a manner that would reasonably be expected to have an Individual Material Adverse Effect or (v) enter into an agreement or amendment that provides that the base management fee under any Management Agreement exceeds, with respect to each Individual Property, the greater of (x) three and one-half percent (3.5%) of the Gross Income from Operations attributable to such Individual Property or (y) the Individual Management Fee Cap. Notwithstanding anything to the contrary contained in the Loan Documents if (A) elected by Xxxxxxxx (and subject to Xxxxxxxx’s right to revoke or rescind such election by notice to Administrative Agent) and (B) the Capped Actual Management Fee Condition shall have been satisfied, such base management fee shall be subject to the Affiliate Management Fee Subordination Condition. In no instance shall Borrower pass-through any management fees to any Tenant in excess of the amount permitted under the related Lease. Notwithstanding anything to the contrary contained in the Loan Documents, Borrower may, without consent of Administrative Agent, modify, change, supplement, alter, amend or grant a waiver under a Management Agreement to the extent the Management Agreement after giving effect to such modification, change, supplement, alteration, amendment, waiver, or modification, as applicable, would qualify as a Replacement Management Agreement.

5.2.2

Liens; Utility and Other Easements. (a) Borrower shall not create, incur, assume or suffer to exist any Lien on any portion of any Individual Property or permit any such action to be taken, except Permitted Encumbrances.

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(b)

Notwithstanding anything to the contrary herein, Borrower may, without the consent of Administrative Agent, (i) Transfer immaterial portions of any one or more Individual Properties, including, without limitation, to Governmental Authorities for dedication or public use or in connection with a Condemnation proceeding, or to third parties for private use as roadways or for access, parking, ingress or egress, or (ii) grant (or release existing) easements, restrictions, covenants, reservations and rights of way in the ordinary course of business (or otherwise in connection with a Condemnation proceeding) including, without limitation, for use, access, parking, uses consistent with the Permitted Use, water and sewer lines, telephone and telegraph lines, gas or electric lines, telecommunications leases, fiberoptic lines and other utilities, provided that no such grant, conveyance or encumbrance shall materially impair the utility and operation of the affected Individual Property or have an Individual Material Adverse Effect on such Individual Property (an “Immaterial Transfer/Release”). In connection with any Immaterial Transfer/Release, if requested by Xxxxxxxx, Administrative Agent shall execute and deliver any instrument necessary or reasonably appropriate and in the form reasonably acceptable to the Administrative Agent evidencing its consent to such Immaterial Transfer/Release (and, in the case of any such Transfer as described in the preceding subclause (i), a release of such portion of the Individual Property from the Lien of the applicable Mortgage and, in the case of any easement, covenant, reservation or right-of-way as described in the preceding subclause (ii), the subordination of the Lien of the Mortgage encumbering the affected Individual Property to such easement, covenant, reservation or right-of-way) upon receipt by Administrative Agent of (and without satisfaction of any other condition):

(A)

ten (10) days’ prior written notice thereof;

(B)

a copy of the easement, covenant, reservation, right of way or other transfer document;

(C)

an Officer’s Certificate stating (I) with respect to any Transfer as described in the preceding subclause (i) above, the consideration, if any, being paid for the Transfer and (II) that such Transfer, easement, covenant, reservation or right of way does not have an Individual Material Adverse Effect on the applicable Individual Property; and

(D)

reimbursement of all of Administrative Agent’s reasonable, out-of-pocket third party costs and expenses incurred in connection with such grant, conveyance or encumbrance (and such consent, release of Lien or instrument of subordination), including reasonable attorneys’ fee and expenses.

(c)

If Borrower shall receive any consideration in connection with an Immaterial Transfer/Release, Borrower shall have the right to use any such consideration in connection with any Alterations performed in connection with such Immaterial Transfer/Release, provided that, to the extent any such consideration is not used in connection with such Alterations (or any such consideration exceeds the amount required to perform such Alterations), Borrower shall promptly deposit the consideration or such excess amount, as the case may be, into the Lockbox Account.

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5.2.3

Dissolution; Amendment of Organizational Documents. Borrower shall not, without obtaining the consent of Administrative Agent (a) engage in any dissolution, liquidation, Division, consolidation or merger with or into any other business entity, (b) engage in any business activity not related to the ownership, development, improvement, leasing, financing, management, maintenance and operation of the Properties, except as set forth in subsection (i) of the definition of “Special Purpose Entity” or the Permitted Uses, (c) transfer, lease or sell, in one transaction or any combination of transactions, all or substantially all of the properties or assets of Borrower except to the extent permitted by the Loan Documents, (d) modify, amend, waive or terminate its organizational documents if such modification or amendment (1) affects any of the “Special Purpose Provisions”, as defined in the related organizational documents, (2) affects any provision or definition on which any opinion of counsel delivered to Administrative Agent in connection with the Loan is based (or any assumption contained in such opinion of counsel) or (3) would reasonably be expected to result in an Aggregate Material Adverse Effect or Individual Material Adverse Effect or its qualification and good standing in any jurisdiction or change its state of organization from Delaware to any other state or (e) cause or permit any SPE Constituent Entity to (i) dissolve, wind up or liquidate or take any action, or omit to take an action, as a result of which such SPE Constituent Entity would be dissolved, wound up or liquidated in whole or in part, or (ii) amend, modify, waive or terminate the organizational documents of such SPE Constituent Entity if such modification or amendment (1) affects any of the “Special Purpose Provisions”, as defined in the related organizational documents, (2) affects any provision or definition on which any opinion of counsel delivered to Administrative Agent in connection with the Loan is based (or any assumption contained in such opinion of counsel) or (3) would reasonably be expected to result in an Aggregate Material Adverse Effect or Individual Material Adverse Effect, in each case, without obtaining the prior written consent of Administrative Agent or Lender or Administrative Agent’s or Xxxxxx’s designee.

5.2.4

Change in Business. Borrower shall not enter into any line of business other than as set forth in clause (i) of the definition of “Special Purpose Entity” (and any ancillary business related to such activities), or make any material change in the scope or nature of its business objectives, purposes or operations if such change would cause the use of the applicable Individual Property to no longer be a Permitted Use, or undertake or participate in activities other than the continuance of its present business or the Permitted Uses. Nothing contained in this Section 5.2.4 shall be deemed to apply to any Transfers, and for the avoidance of doubt, the rights of Borrower to effectuate Transfers is governed solely by Section 5.2.10 hereof.

5.2.5

Debt Cancellation. Borrower shall not cancel or otherwise forgive or release any claim or debt (other than termination of Leases in accordance with Section 5.2.14 hereof or, provided that no Event of Default is then continuing, forgiveness in the ordinary course of Xxxxxxxx’s business of Rent in arrears or in connection with a settlement with a Tenant under a Lease) owed to Borrower by any Person, except for adequate consideration and in the ordinary course of Xxxxxxxx’s business.

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5.2.6

Zoning. Except as would not have an Individual Material Adverse Effect on an Individual Property or as permitted in connection with the release of any Release Parcel/Rights in accordance with the terms and conditions of Section 2.6.2 hereof, Borrower shall not initiate or consent to any zoning reclassification of any portion of any Individual Property or seek any variance under any existing zoning ordinance or use or permit the use of any portion of any Individual Property, in each case, if such action would be reasonably likely to result in an Individual Material Adverse Effect with respect to the applicable Individual Property, without the prior written consent of Administrative Agent. Administrative Agent shall use commercially reasonable efforts to respond within fifteen (15) Business Days to any request for consent from Borrower under this Section 5.2.6, provided, however, if Administrative Agent shall fail to use such commercially reasonable efforts and/or shall fail to so respond within such fifteen (15) Business Day period, in no instance shall the same be deemed to constitute Administrative Agent’s consent to such request. Notwithstanding the provisions of this Section 5.2.6 or Section 2.6.2, Borrower shall have the right without consent of Administrative Agent to submit to any Governmental Authority an application for subdivision or lot split and to consummate such subdivision or lot split with respect to any Individual Property in anticipation of the release of any Release Parcel/Rights so long as, (i) Borrower shall not take any action that would reasonably be expected to result in the Individual Property which will remain collateral for the Loan becoming a non-conforming use under applicable Legal Requirements and (ii) any release of any Release Parcel/Rights shall be conditioned on Borrower’s compliance with Section 2.6.2 and Section 2.6.1(e). Notwithstanding anything in the contrary herein, Borrower may, without consent from or notice to Administrative Agent, enter into deed restrictions and agreements restricting the use of an Individual Property to its current use if and to the extent required by applicable Legal Requirements, provided that such restrictions and agreements are not reasonably expected to result an Individual Material Adverse Effect on the applicable Individual Property. Notwithstanding anything to the contrary, this Section 5.2.6 shall not restrict any commencement of any zoning discussions, procedures or proceedings with respect to the use of any Individual Property, provided that such action does not result in a change to the use of such Individual Property or any zoning reclassification with respect to such Individual Property, in each case, that would result in such Individual Property no longer being operated as a Permitted Use for so long as it is collateral for the Loan.

5.2.7

No Joint Assessment. Borrower shall not suffer, permit or initiate the joint assessment of any Individual Property (a) with any other real property constituting a tax lot separate from such Individual Property and (b) which constitutes real property with any portion of such Individual Property which may be deemed to constitute personal property, or any other procedure whereby the Lien of any taxes which may be levied against such personal property shall be assessed or levied or charged to such real property portion of such Individual Property.

5.2.8

Principal Place of Business and Organization. Borrower shall not change (or permit any other Person to change) its name, identity (including its trade name or names), place of organization or formation (as set forth in Section 4.1.28 hereof) or form of entity unless Xxxxxxxx shall have first notified Administrative Agent in writing of such change at least thirty (30) days prior to the effective date of such change, and shall have first taken all action required by Administrative Agent for the purpose of perfecting or protecting the lien and security interests of Administrative Agent pursuant to this Agreement, and the other Loan Documents and, in the case of a change in Borrower’s form of entity, without first obtaining the prior written consent of Administrative Agent, which consent may be given or denied in Administrative Agent’s sole discretion. Borrower shall not change (or permit any Person to change) the place of its organization without the consent of Administrative Agent, which consent shall not be unreasonably withheld.

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5.2.9

Intentionally Omitted.

5.2.10

Transfers. (a) Borrower acknowledges that Administrative Agent and Lender have examined and relied on the experience of Borrower and its stockholders, general partners, members and (if Borrower is a trust) beneficial owners, as applicable, and principals of Borrower in owning and operating properties such as the Properties in agreeing to make the Loan, and will continue to rely on Borrower’s ownership of the Properties as a means of maintaining the value of the Properties as security for repayment of the Debt and the performance of the Other Obligations. Borrower acknowledges that Administrative Agent and Lender have a valid interest in maintaining the value of the Properties so as to ensure that, should Borrower default in the repayment of the Debt or the performance of the Other Obligations, Administrative Agent on behalf of Xxxxxx can recover the Debt by a sale of the Properties.

(b)

Except (i) to the extent otherwise set forth in this Section 5.2.10, (ii) with respect to the release of one or more Individual Properties or any portion thereof (and related collateral) in accordance with this Agreement and (iii) to the extent such Transfer constitutes a Permitted Transfer or Permitted Debt, without the prior written consent of Lender, Borrower shall not and shall not permit any Restricted Party to do any of the following (collectively, a “Transfer”): (x) sell, convey, mortgage, grant, bargain, encumber, pledge, assign, grant purchase options with respect to, or otherwise transfer or dispose of (directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise, and whether or not for consideration or of record) any Individual Property or any part thereof or any legal or beneficial interest therein, (y) permit a Sale or Pledge of an interest in any Restricted Party or (z) Borrower entering into, or causing the Property to be subject to, any PACE Debt. Any Transfer made without Xxxxxx’s prior written consent (to the extent that such consent is required pursuant to this Section 5.2.10) shall be null and void.

(c)

A Transfer shall include, but not be limited to, (i) an installment sales agreement wherein Borrower agrees to sell an Individual Property or any part thereof for a price to be paid in installments; (ii) an agreement by Borrower leasing all or substantially all of an Individual Property to a third party for other than actual occupancy by a space Tenant thereunder or a sale, assignment or other transfer of, or the grant of a security interest in, Borrower’s right, title and interest in and to any Leases or any Rents; (iii) if a Restricted Party is a corporation, any Division, merger, consolidation or Sale or Pledge of such corporation’s stock or the creation or issuance of new stock; (iv) if a Restricted Party is a limited or general partnership, any Division, merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the partnership interest of any general partner or any profits or proceeds relating to such partnership interest, or the Sale or Pledge of limited partnership interests or any profits or proceeds relating to such limited partnership interest or the creation or issuance of new limited partnership interests; (v) if a Restricted Party is a limited liability company, any Division, merger or consolidation or the change, removal, resignation or addition of a member or a non‑member manager (other than an Independent Director or Independent Manager that is a springing member in accordance with the terms and conditions hereof) or the Sale or Pledge of the membership interest of a member (other than an Independent Director or Independent Manager that is a springing member in accordance with the terms and conditions hereof) or any profits or proceeds relating to such membership interest, or the Sale or Pledge of membership interests or the creation or issuance of new membership interests; or (vi) if a Restricted Party is a trust or nominee trust, any merger, consolidation or the Sale or Pledge of the legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests.

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(d)

Notwithstanding the provisions of this Section 5.2.10 the following Transfers shall not require any notice to Administrative Agent or Lender (unless Borrower is required to deliver any Additional Insolvency Opinion or satisfy any “know your customer” compliance screening as expressly required below) or the consent of Administrative Agent or Lender or the payment of any transfer fee:

(i)

The Sale or Pledge, in one or a series of Transfers, of the direct or indirect equity interests in Borrower or direct or indirect interests in any Restricted Party; provided, that, (A) after giving effect to such Sale or Pledge (and in the case of a Sale or Pledge that is a pledge for security purposes otherwise permitted hereunder, any subsequent foreclosure thereon (other than a Pledge Foreclosure)), one or more Approved Control Party(ies) (x) shall individually or collectively, directly or indirectly, own the applicable Required Ownership Interest, and (y) shall individually or collectively, directly or indirectly, Control Borrower and Mezzanine Borrower, (B) intentionally omitted, (C) intentionally omitted, (D) no Individual Borrower or SPE Constituent Entity shall fail to be a Special Purpose Entity by reason of such Sale or Pledge, (E) for so long as the Loan or any Mezzanine Loan shall remain outstanding (I) no pledge of any direct interests in any Restricted Pledge Party shall be permitted (other than pledges securing the Loan or the Mezzanine Loan), except that a pledge of the direct ownership interests in any Restricted Pledge Party (other than pledges of the direct ownership interests in Borrower (or, if any Mezzanine Loan is outstanding, any Mezzanine Borrower)) shall be permitted if such pledge directly or indirectly secures indebtedness that is also directly or indirectly secured by substantial assets other than the Properties and (II) no Restricted Pledge Party shall issue preferred equity that is substantially similar to mezzanine debt (such as preferred equity which has a fixed maturity date, pledged ownership interests as security and rights of the equity holder to demand repayment of its investment on such maturity date) and (F) with respect to any transferee that, as a result of such Transfer, will hold a twenty percent (20%) or greater direct or indirect interest in, or Control, Borrower (and such transferee owned less than twenty percent (20%) of the direct or indirect interest in Borrower or did not Control Borrower immediately prior to such Transfer), Lender shall receive notice of such transfer (provided, however, the failure to provide such notice shall not constitute an Event of Default) and each Lender shall receive KYC Searches with respect to such transferee. Notwithstanding anything to the contrary contained in the Loan Documents, no notice to or consent of Lender shall be required in connection with (i) any foreclosure of any pledge of an indirect equity interest in Borrower or (ii) the exercise of remedies or acquisition of Control by a provider of preferred equity or debt to an indirect owner of Borrower, in each case, that is permitted by this Agreement (a “Pledge Foreclosure”) that may or may not result in a change of Control of Borrower and no assumption fee shall be payable in connection therewith; provided that (x) the foreclosing party or the party acquiring Control of Borrower or exercising remedies is an Eligible Assignee that is able to remake the applicable representations set forth in Section 4.1.35 and is able to comply with Borrowers’ covenants set forth in Section 5.1.27 and (y) Lender shall receive notice of such transfer (provided, however, the failure to provide such notice shall not constitute an Event of Default) and shall have the right to receive the KYC Searches with respect to any Person that holds a twenty percent (20%) or greater direct or indirect interest in, or Controls, Borrower following such Pledge Foreclosure (and such transferee owned less than twenty percent (20%) of the direct or indirect interest in Borrower or did not Control Borrower immediately prior to such Pledge Foreclosure). If after giving effect to any such sale, more than forty-nine percent (49%) in the aggregate of direct or indirect interests in Borrower and/or any SPE Constituent Entity are owned by any Person and its Affiliates that owned less than forty-nine percent (49%) direct or indirect interest in Borrower and/or such SPE Constituent Entity, as applicable, as of the Closing Date, Borrower shall deliver to Administrative Agent an Additional Insolvency Opinion reasonably acceptable to Administrative Agent. Notwithstanding anything to the contrary contained in this Agreement, (x) no notice to, or consent of, Lender shall be required in connection with any Sale or Pledge of direct or indirect interests in any Excluded Entity or by and among any Excluded Entity and (y) subject to sub-clause (I) above, no Restricted Pledge Party (other than Borrower or Mezzanine Borrower) shall be restricted from any Sale or Pledge of its direct or indirect assets; provided such direct or indirect assets are not encumbered (or required to be encumbered) by the Loan or the Mezzanine Loan. In connection with a Controlling Interest Transfer or any other Transfer (including, for the avoidance of doubt, without limitation, a Pledge Foreclosure), the result of which is that Guarantor or any Ancillary Guarantor, as applicable, no longer owns a direct or indirect interest in or is no longer an Affiliate of Borrower (individually or collectively as the context requires, the “Exiting Guarantor”), Exiting Guarantor shall be released as a guarantor under the (I) Guaranty for any acts occurring from and after such Transfer; provided that a Guaranty Assumption occurs with respect to the Guaranty (the “Non-Recourse Assumption”), (II) Rate Cap Reserve Guaranty (if any) provided that (x) Borrower shall pay to Administrative Agent, for the benefit of Lender, an amount equal to all amounts guaranteed under the Rate Cap Reserve Guaranty as of such date which amounts shall be deposited by Administrative Agent into the Rate Cap Reserve Account or (y) a Guaranty Assumption occurs with respect to the Rate Cap Reserve Guaranty (the “Rate Cap Guaranty Assumption”), (III) Alterations Guaranty (if any), provided that (x) Borrower shall pay to Administrative Agent, for the benefit of Lender, an amount equal to all amounts guaranteed under the Alterations Guaranty as of such date which amounts shall be held by Administrative Agent as the Alterations Deposit or (y) a Guaranty Assumption occurs with respect to the Alterations Guaranty (the “Alterations Guaranty Assumption”), (IV) Excess Cash Flow Guaranty (if any), provided that (x) Borrower shall pay to Administrative Agent, for the benefit of Lender, an amount equal to all amounts guaranteed under the Excess Cash Flow Guaranty as of such date which amounts shall be deposited by Administrative Agent into the Excess Cash Flow Reserve Account or (y) a Guaranty Assumption occurs with respect to the Excess Cash Flow Guaranty (the “Excess Cash Flow Guaranty Assumption”) and (V) Debt Yield Trigger Cure Guaranty (if any), provided that, at the election of Borrower, (v) Borrower shall pay to Administrative Agent, for the benefit of Lender, an amount equal to all amounts guaranteed under the Debt Yield Trigger Cure Guaranty as of such date (the “DY Guaranty Amount”) to be applied as a prepayment of the Loan, (w) Borrower shall pay to Administrative Agent, for the benefit of Lender, an amount equal to the DY Guaranty Amount to be held by Administrative Agent as Debt Yield Cure Collateral in accordance with the definition thereof, (x) Borrower delivers to Administrative Agent a Letter of Credit in an amount equal to the DY Guaranty Amount to be held by Lender as Debt Yield Cure Collateral in accordance with the definition thereof, (y) Borrower shall pay to Administrative Agent, for the benefit of Lender, an amount equal to the DY Guaranty Amount which shall be deposited by Administrative Agent into the Cash Management Account at which point a Debt Yield Trigger Event shall be deemed to exist until a Debt Yield Trigger Event Cure has taken place or (z) a Guaranty Assumption occurs with respect to the Debt Yield Trigger Cure Guaranty (the “Debt Yield Trigger Cure Guaranty Assumption”), with the conditions set forth in clauses (I) through (V) above shall be referred to herein as the “Guaranty Release Conditions”, and the release of the applicable Guarantor or Ancillary Guarantor shall be referred to herein as the “Guarantor Release”. Each Guarantor Release shall be effective automatically upon satisfaction of the applicable Guaranty Release Conditions, but Administrative Agent agrees to provide written evidence thereof, at Xxxxxxxx’s sole cost and expense, if the same is reasonably requested by Xxxxxxxx.

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(ii)

A Public Sale; provided that (A) if after giving effect to any such Public Sale, more than forty-nine percent (49%) in the aggregate of the direct or indirect interests in Borrower and/or any SPE Constituent Entity are owned by any Person and its Affiliates that owned less than forty-nine percent (49%) of the direct or indirect interest in Borrower and/or such SPE Constituent Entity, as applicable, as of the Closing Date, Borrower shall deliver to Administrative Agent an Additional Insolvency Opinion reasonably acceptable to Administrative Agent, (B) Borrower and any SPE Constituent Entity shall not fail to be a Special Purpose Entity by reason of such Public Sale and (C) with respect to any transferee that, as a result of such transfer, will hold a twenty percent (20%) or greater direct or indirect interest in, or Control, Borrower (and such transferee owned less than twenty percent (20%) of the direct or indirect interest in Borrower or did not Control Borrower immediately prior to such Public Sale), Lender shall receive KYC Searches with respect to such transferee. Upon completion of any such Public Sale subject to and in accordance with the provisions of this Section 5.2.10(d)(ii), Borrower shall have the right to cause the Non-Recourse Assumption, the Rate Cap Guaranty Assumption, the Alterations Guaranty Assumption, the Excess Cash Flow Guaranty Assumption and/or the Debt Yield Trigger Cure Guaranty Assumption and each Guarantor Release shall be effective automatically upon satisfaction of the applicable Guaranty Release Conditions and Administrative Agent agrees to provide written evidence of such Guarantor Release if the same is reasonably requested by Xxxxxxxx. Following any Transfer in accordance with this Section 5.2.10(d)(ii), the Qualified Public Company shall be deemed to be an Excluded Entity. For purposes of clarity, the provisions of Section 5.2.3 and this Section 5.2.10 shall not restrict the Qualified Public Company or Public Vehicle (or any direct or indirect owner of the Qualified Public Company or Public Vehicle, but excluding any Borrower, any Mezzanine Borrower or any SPE Constituent Entity) from effectuating a restructuring and such Qualified Public Company or Public Vehicle (or any direct or indirect owner of the Qualified Public Company or Public Vehicle, but excluding any Borrower, any Mezzanine Borrower or any SPE Constituent Entity) shall be permitted to effectuate a restructuring, including amending or modifying its organizational documents, intercompany commercial arrangements or governance including any amendments or modifications reasonably determined by such Qualified Public Company or Public Vehicle to be required to satisfy stock exchange, quotation system listing or trading requirements.

(iii)

A pledge made by Mezzanine Borrower to secure the Mezzanine Loan in accordance with the related Mezzanine Loan Documents or any Foreclosure thereof and/or exercise of rights and/or remedies under the Mezzanine Loan Documents.

(iv)

Permitted Transfers.

(e)

In addition to Xxxxxxxx’s other rights expressly permitted under this Section 5.2.10, (i) a Transfer of all of the Properties to a new borrower or borrowers (“Transferee”), or (ii) a Transfer of Controlling interests in the Mezzanine Borrower or, if no Mezzanine Loan is then outstanding, Borrower (a “Controlling Interest Transfer”), and in each instance provided that the same do not otherwise constitute a Permitted Transfer or are otherwise permitted by Section 5.2.10(d) shall each be permitted without Lender’s consent other than as expressly provided in the definition of “Permitted Assumption Party” set forth herein (each, a “Permitted Assumption”); provided, (x) no Permitted Assumption shall occur until the one hundred twenty (120) days after the Closing Date, (y) that Administrative Agent receives thirty (30) days’ prior written notice of such Permitted Assumption and (z) no Event of Default has occurred and is continuing at the time the Permitted Assumption is consummated. In connection with any Permitted Assumption pursuant to this Section 5.2.10(e), Borrower shall be required to satisfy the following:

(i)

Borrower shall pay Administrative Agent, for the benefit of Lender, a fee equal to Lender’s Allocation of Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) at the time such Permitted Assumption is consummated; provided that such fee shall not be payable (x) if such Permitted Assumption is to any entity comprising an Approved Sponsor Entity, to any Affiliate of an Approved Sponsor Entity, or any other entity directly or indirectly Controlled by any entity comprising an Approved Sponsor Entity or (y) if following such Permitted Assumption, one or more Approved Sponsor Entities will, individually or collectively with a Qualified Transferee, Control Borrower;

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(ii)

Borrower shall pay any and all reasonable out of pocket costs incurred by Administrative Agent and Lender in connection with such Permitted Assumption (including, without limitation, Administrative Agent’s and Xxxxxx’s reasonable counsel fees and disbursements and all recording fees, title insurance premiums and mortgage and intangible taxes);

(iii)

After giving effect to the Permitted Assumption, one or more Permitted Assumption Parties must, individually or collectively, (x) own, directly or indirectly, the applicable Required Ownership Interest, and (y) Control Borrower or Transferee;

(iv)

With respect to a Transfer of the Properties, if applicable, Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner reasonably satisfactory to Administrative Agent in all material respects, including, without limitation, by entering into an assumption agreement in form and substance satisfactory to Administrative Agent;

(v)

After giving effect to the Permitted Assumption, Transferee and Transferee’s SPE Constituent Entities or, in the case of a Controlling Interest Transfer, Borrower and each SPE Constituent Entity must be able to make all of the representations set forth in Sections 4.1.30 and 4.1.35, and perform all of the covenants set forth in Sections 5.1.27 and 5.1.28 of this Agreement, no Event of Default shall otherwise occur as a result of such Transfer, and Transferee and Transferee’s SPE Constituent Entities shall deliver (A) all organizational documentation reasonably requested by Administrative Agent and Lender, which shall be reasonably satisfactory to Administrative Agent and Lender, and (B) all certificates and agreements necessary to evidence the Permitted Assumption and any due formation, execution enforceability legal opinions reasonably required by Administrative Agent;

(vi)

Intentionally omitted;

(vii)

If the Permitted Assumption is accomplished by a deed or conveyance of the Properties, rather than an assignment of all of Guarantor’s or a Restricted Party’s interest in Borrower, Borrower shall deliver, at its sole cost and expense, an endorsement to each Title Insurance Policy, as modified by the assumption agreement, confirming the Lien of the Mortgages as a valid first lien on all of the Properties and naming the Transferee as owner of all of the Properties, which endorsements shall insure that, as of the date of the recording of the assumption agreement, the applicable Individual Property shall not be subject to any additional exceptions or Liens other than those contained in the applicable Title Insurance Policy issued on the Closing Date and the Permitted Encumbrances;

(viii)

Each Individual Property shall be managed by Qualified Manager (and, if the Qualified Manager managing any one or more Individual Properties prior to the Transfer is being replaced, the replacement Qualified Manager shall manage such Individual Properties pursuant to a Replacement Management Agreement);

(ix)

Borrower or Transferee, at its sole cost and expense, shall deliver to Administrative Agent an Additional Insolvency Opinion in respect of such Transfer in form and substance reasonably satisfactory to Administrative Agent which opinion may be relied upon by Administrative Agent with respect to the proposed Transfer;

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(x)

Lender shall receive KYC Searches with respect to any Person that will as of the date of the Permitted Assumption hold a twenty percent (20%) or greater direct or indirect interest in, or Control, the Transferee or, in the case of a Controlling Interest Transfer, Borrower (and such Person owned less than twenty percent (20%) of the direct or indirect interest in Borrower or did not Control Borrower immediately prior to such Permitted Assumption); and

(xi)

To the extent a Mezzanine Loan is outstanding, Mezzanine Borrower shall have complied with the requirements of Section 5.2.10(e) of the Mezzanine Loan Agreement.

Immediately upon the consummation of a Permitted Assumption pursuant to this Section 5.2.10(e), then (I) each Borrower (other than with respect to a Controlling Interest Transfer) shall be released from all liability under this Agreement, the Note, the Mortgages, the Guaranty and the other Loan Documents accruing from and after the date of such Permitted Assumption and (II) each Guarantor Release shall be effective automatically upon the satisfaction of the applicable Guaranty Release Conditions (and Administrative Agent agrees to provide written notice thereof if the same is reasonably requested by Borrower).

(f)

Notwithstanding anything in the Loan Documents to the contrary, in addition to Xxxxxxxx’s other rights expressly permitted under this Section 5.2.10, Borrower shall be permitted, without Administrative Agent’s or Lender’s consent or the payment of any fee, to Transfer one or more of the Properties to a newly-formed borrower or borrowers, each of which shall be a direct or indirect subsidiary of Borrower (an “Approved Borrower Sub”), provided that (i) Administrative Agent receives ten (10) Business Days’ prior written notice of such Transfer to an Approved Borrower Sub (an “Approved Drop Down”), (ii) no Event of Default has occurred and is continuing at the time of the Approved Drop Down, (iii) the Approved Borrower Sub provides Lender collateral that is substantially similar to the collateral provided by the related Borrower to Lender as of the date immediately prior to such Approved Drop Down, and (iv) the conditions set forth in Section 5.2.10(e)(ii), (iv), (v), (vii), (viii), (ix) and (xi) are satisfied.

(g)

Neither Administrative Agent nor Lender shall be required to demonstrate any actual impairment of its security or any increased risk of default hereunder in order to declare the Debt immediately due and payable upon the consummation of a purported Transfer that results in an Event of Default pursuant to the terms of this Section 5.2.10. This provision shall apply to every Transfer that results in an Event of Default pursuant to the terms of Section 5.2.10 regardless of whether voluntary or not, or whether or not Administrative Agent or any Lender has consented to any previous Transfer.

(h)

In the event that (A) any direct or indirect owner of Borrower, including in connection with a Public Sale or (B) a corporation or other Person that is or elects to be a real estate investment trust (the “REIT”) for federal income tax purposes (a “REIT Election”) owns or acquires (pursuant to a Transfer that is permitted pursuant to this Section 5.2.10 and which is made in accordance with and otherwise satisfies the applicable terms and conditions set forth herein) all or a portion of the equity interests in Borrower, Borrower shall have the right to permit a REIT Restructuring in accordance with and subject to satisfaction of, the terms and conditions set forth on Schedule 5.2.10.

(i)

Notwithstanding anything to the contrary contained in the Loan Documents, at any time, without the consent of Administrative Agent or Lender and without any requirement that the same occur in connection with a Transfer of ownership interests in Borrower, Borrower shall have the right to cause the Non-Recourse Assumption, the Rate Cap Guaranty Assumption, the Alterations Guaranty Assumption, the Excess Cash Flow Guaranty Assumption and/or the Debt Yield Trigger Cure Guaranty Assumption.

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Notwithstanding anything to the contrary contained in this Agreement, with respect to any KYC Searches required by the terms of this Section 5.2.10, (i) each Lender agrees to use diligent and commercially reasonable efforts to complete such KYC Searches within fifteen (15) days after such Lender receives the requested information necessary to conduct such KYC Searches and (ii) the requirement of Borrower to deliver KYC Searches shall not be applicable with respect to any acquisition of ownership interests or Control by any entity comprising Initial Sponsor, any Blackstone Fund Entity or any entity Controlled by a Blackstone Fund Entity.

5.2.11

Indebtedness. Borrower shall not incur any Indebtedness other than Permitted Debt.

5.2.12

REA. Xxxxxxxx agrees that without the prior consent of Administrative Agent, Xxxxxxxx shall not execute modifications to any REA if such modifications are reasonably expected to have an Individual Material Adverse Effect on the affected Individual Property. Without limiting the generality of the foregoing, Borrower shall not, without the prior written consent of Administrative Agent, take (and hereby assigns to Administrative Agent for the benefit of Lenders) any right it may have to take) any action to terminate, surrender, or accept any termination or surrender of, any REA. Borrower shall pay all charges and other sums to be paid by Xxxxxxxx pursuant to the terms of any REA as the same shall become due and payable and prior to the expiration of any applicable grace period therein provided. Borrower shall comply, in all material respects, with all of the terms, covenants and conditions on Xxxxxxxx’s part to be complied with pursuant to terms of any REA. Borrower shall take all actions as may be necessary from time to time to preserve and maintain the REAs in accordance with applicable laws, rules and regulations. Borrower shall enforce, in a commercially reasonable manner, the obligations to be performed by the parties to the REA (other than Borrower). Borrower shall promptly furnish to Administrative Agent any notice of default delivered to Borrower in connection with any REA by any party to any such REA or any third party. Borrower shall not assign (other than to Administrative Agent for the benefit of Lender) or encumber its rights under any REA (other than pursuant to any Permitted Encumbrance).

5.2.13

ERISA Matters. Except as would not reasonably be expected to result in a Material Adverse Effect, neither Borrower nor Guarantor will, during the term of the Loan, be obligated to contribute to an “employee benefit plan” as defined in Section 3(3) of ERISA subject to Title IV of ERISA or Section 412 of the Code.

5.2.14

Leasing Matters. Except as set forth on Schedule 5.2.14, Borrower shall not without Administrative Agent’s written consent, not to be unreasonably withheld, conditioned or delayed; (i) collect any of the Rents more than one (1) month in advance (other than (x) security deposits and estimated additional rent amounts on account of operating expenses, tax and other escalations or pass‑throughs and (y) full or partial Rent prepayments for a term not exceeding more than one (1) year for up to five percent (5%) of the units at any Individual Property), or (ii) execute any other collateral assignments of lessor’s interest in the Leases, Excluded Leases, or the Rents (except as contemplated by the Loan Documents).

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ARTICLE VI

INSURANCE; CASUALTY; CONDEMNATION

Section

6.1 Insurance.

(a)

Borrower shall obtain and maintain, or cause to be maintained, insurance for Borrower and the Properties providing at least the following coverages:

(i)

comprehensive “all risk” or special causes of loss form insurance, as is available in the insurance market as of the closing date, including, but not limited to, any type of windstorm or hail (including named storm) on the Improvements and the Personal Property, (A) in an amount equal to one hundred percent (100%) of the “Full Replacement Cost”, which for purposes of this Agreement shall mean actual replacement value (exclusive of costs of excavations, foundations, underground utilities and footings); (B) containing an agreed amount endorsement with respect to the Improvements and Personal Property waiving all co-insurance provisions or to be written on a no co-insurance form; (C) providing for no deductible in excess of $250,000 for all such insurance coverage; provided, however, with respect to terrorism, providing for a deductible not to exceed $500,000 and with respect to flood, windstorm and earthquake coverage, providing for a deductible not to exceed five percent (5%) of the total insurable value of the applicable Individual Property, except that to the extent Guarantor provides a guaranty acceptable to Administrative Agent for the difference (such guaranty, a “Deductible Guaranty”) and if the Additional Insolvency Opinion Condition is satisfied Borrower delivers an Additional Insolvency Opinion reasonably acceptable to Administrative Agent which takes into account such Deductible Guaranty, then such deductible may be up to fifteen percent (15%) of the total insurable value of the Property, subject in each case to a $1,000,000 minimum; provided further that (1) Borrower may utilize a $3,000,000 aggregate deductible subject to a $250,000 per occurrence deductible and a $250,000 maintenance deductible following the exhaustion of the aggregate and (2) the aggregate does not apply to any losses arising from wind/named windstorm, earthquake or flood and (D) if any of the Improvements on any Individual Property or the use of any Individual Property shall at any time constitute legal non-conforming structures or uses, coverage for loss due to operation of law and coverage for demolition costs and coverage for increased costs of construction in amounts reasonably acceptable to Administrative Agent. For the avoidance of doubt, the Closing Date Deductible Guaranty is delivered in satisfaction of the requirements of Section 6.1(a)(i)(C) hereof, and as of the Closing Date, Borrower is in compliance with such requirements and Administrative Agent has waived the Maximum Windstorm Deductible (as defined in the Closing Date Deductible Guaranty). In addition, Borrower shall obtain: (x) if any portion of the Improvements is currently or at any time in the future located in a federally designated “special flood hazard area”, flood hazard insurance in an amount equal to the maximum amount of such insurance available under the National Flood Insurance Act of 1968, the Flood Disaster Protection Act of 1973 or the National Flood Insurance Reform Act of 1994, as each may be amended (collectively, the “Flood Laws”), plus excess amounts as Administrative Agent shall reasonably require; provided, further that Borrower may obtain the flood coverage required hereunder from a private insurer (to the extent permitted under the Flood Laws) or from federally-backed flood insurance available under the National Flood Insurance Program; (y) earthquake insurance for any Property located in seismic zone 3 or 4 with a probable maximum loss greater than 20% and (z) storm surge and mudslide insurance in an amount reasonably acceptable to Administrative Agent; provided that the insurance pursuant to subclauses (x), (y) and (z) hereof shall be on terms consistent with the comprehensive all risk insurance policy required under this subsection (i)and provided further that the insurance amounts for the coverages set forth in subclause (y) hereof shall not be less than the 250 year annual aggregate probable maximum loss as indicated in a portfolio seismic risk analysis, including the Properties located in seismic zone 3 or 4, covered by such earthquake limit, with a separate assessment for California to the extent there is a separate sublimit for California under the Policy (such analysis to be approved by Administrative Agent and secured by the applicable Borrower utilizing a third-party engineering firm qualified to perform such seismic risk analysis using the most current RMS software, or its equivalent, to include consideration of loss amplification, at the expense of the applicable Individual Borrower). Notwithstanding the above, Lender, at Borrower’s expense, shall obtain flood certificates annually for the Property;

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(ii)

business income or rental loss insurance, written for a period of at least eighteen (18) months after the date of the Casualty or on an Actual Loss Sustained Basis (A) with loss payable to Administrative Agent for the benefit of Lender; (B) covering all risks required to be covered by the insurance provided for in subsections (i), (iii), (iv), (ix) and (x) of this Section 6.1(a); (C) in an amount equal to one hundred percent (100%) of the projected gross revenues (less noncontinuing expenses) from the operation of the Properties (as reduced to reflect expenses not incurred during a period of Restoration) for eighteen (18) months; and (D) containing an extended period of indemnity endorsement which provides that after the physical loss to the Improvements and Personal Property has been repaired, the continued loss of income will be insured until such income either returns to the same level it was at prior to the loss, or the expiration of six (6) months from the date that the applicable Individual Property is repaired or replaced and operations are resumed, whichever first occurs, and notwithstanding that the policy may expire prior to the end of such period. The amount of such business income or rental loss insurance shall be determined prior to the Closing Date and at least once each year thereafter based on Borrower’s reasonable estimate of the gross revenues (less noncontinuing expenses) from each Individual Property for the succeeding twelve (12) month period. Notwithstanding the provisions of Section 2.7.1 hereof, all proceeds payable to Administrative Agent for the benefit of Lender pursuant to this subsection shall be held by Administrative Agent and shall be applied in Administrative Agent’s and Xxxxxx’s sole discretion to (I) the obligations secured by the Loan Documents from time to time due and payable hereunder and under the Note or (II) Operating Expenses approved by Administrative Agent in its sole discretion; provided, however, that nothing herein contained shall be deemed to relieve Borrower of its obligations to pay the obligations secured by the Loan Documents on the respective dates of payment provided for in this Agreement and the other Loan Documents except to the extent such amounts are actually paid out of the proceeds of such business income insurance;

(iii)

at all times during which structural construction, repairs or Alterations are being made with respect to the Improvements, and only if each of the Individual Property coverage form and the liability insurance coverage form does not otherwise apply, (A) commercial general liability insurance, covering claims not covered by or under the terms or provisions of the above mentioned commercial general liability insurance policy and (B) the insurance provided for in subsection (i) above written in a so-called builder’s risk completed value form including coverage for all insurable hard and soft costs of construction (1) on a non-reporting basis, (2) against all risks insured against pursuant to subsections (i), (i), (iv) and (x) of this Section 6.1(a), (3) including permission to occupy such Individual Property and (4) with an agreed amount endorsement waiving co-insurance provisions. In addition, Borrower shall cause the general contractor, architect and engineer to obtain and maintain commercial general liability, umbrella and excess liability, workers’ compensation and automobile liability with limits, terms and conditions acceptable to Administrative Agent;

(iv)

if applicable, comprehensive boiler and machinery/equipment breakdown insurance, in amounts as shall be reasonably required by Administrative Agent on terms consistent with the commercial property insurance policy required under subsection (i) above;

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(v)

commercial general liability insurance, including terrorism, against claims for personal injury, bodily injury, death or property damage occurring upon, in or about any Individual Property, such insurance (A) to be on the so-called “occurrence” form with a combined limit of not less than Two Million and No/100 Dollars ($2,000,000.00) in the aggregate per location and One Million and No/100 Dollars ($1,000,000.00) per occurrence with a self-insured retention of $750,000.00; (B) to continue at not less than the aforesaid limit until required to be changed by Administrative Agent in writing by reason of changed economic conditions making such protection inadequate and (C) to cover at least the following hazards: (1) premises and operations; (2) products and completed operations on an “if any” basis; (3) independent contractors; (4) contractual liability for all insured contracts;

(vi)

if applicable, motor vehicle / automobile liability coverage for all owned and non-owned vehicles, including rented and leased vehicles containing minimum limits per occurrence of One Million and No/100 Dollars ($1,000,000.00);

(vii)

if applicable, worker’s compensation subject to the worker’s compensation laws of the applicable state, and employer’s liability in amounts reasonably acceptable to Administrative Agent;

(viii)

umbrella and excess liability insurance in an amount not less than One Hundred Million and No/100 Dollars ($100,000,000.00) per occurrence and in the aggregate on terms consistent with the commercial general liability insurance policy required under subsection (v) above;

(ix)

the insurance required under Section 6.1(a)(i), (i), (v) and (viii) above shall cover perils of terrorism and acts of terrorism (or at least not specifically exclude same) and Borrower shall maintain insurance for loss resulting from perils and acts of terrorism on terms (including amounts and deductibles) consistent with those required under Section 6.1(a)(i), (i), (v) and (viii) above at all times during the term of the Loan. For so long as Terrorism Risk Insurance Program Reauthorization Act of 2019 or a similar or subsequent statute (“TRIPRA”) is in effect and continues to cover both foreign and domestic acts, Administrative Agent shall accept terrorism insurance with coverage against acts which are “certified” within the meaning of TRIPRA. Notwithstanding anything to the contrary herein, if (A) TRIPRA is not in effect, (B) TRIPRA is modified which results in a material increase in terrorism insurance premiums, or (C) there is a disruption in the terrorism insurance marketplace as the result of a terrorism event which results in a material increase in terrorism insurance premiums, then provided that terrorism insurance is commercially available, Borrower shall be required to carry terrorism insurance throughout the term of the Loan as required by the first sentence of this subclause (ix); provided, however, if any of the events in clauses (A) through (C) occurs, then Borrower shall not be required to pay annual premiums in excess of the TC Cap (defined below) in order to obtain the required terrorism insurance (but Borrower shall be obligated to purchase the maximum amount of terrorism insurance available with funds equal to the TC Cap). As used above, “TC Cap” shall mean an amount equal to two (2) times the then-current property insurance premium that is payable at such time in respect of the property, business interruption/rental loss and liability insurance required hereunder (without giving effect to the cost of the terrorism, flood, earthquake and windstorm components of such casualty and business interruption/rental loss insurance at the time that any terrorism insurance is excluded from any Policy). Notwithstanding the foregoing insurance company rating requirements set forth in Section 6.1(b), as long as TRIPRA is in effect providing the Applicable Federal Backstop Percentage (as defined below) of terrorism coverage, Borrower may obtain terrorism coverage as required by this Section 6.1(a) written by Gryphon Core, LLC, through one of its protected cells, a captive insurer, provided the following conditions are met and continue to be satisfied: (1) Gryphon Core, LLC and its protected cell(s) are and remain a licensed captive insurance company which is authorized to issue an insurance policy affording coverage to the Sponsor, and is operating in good standing within the applicable captive domicile and in compliance with all applicable state and federal laws, and (2) Borrower shall obtain reinsurance with a cut through endorsement acceptable to Administrative Agent from an insurance company meeting the foregoing rating requirements for the remaining portion of such coverage not subject to the Applicable Federal Backstop Percentage. As used herein, the “Applicable Federal Backstop Percentage” shall mean the then applicable federal share of compensation for insured losses of an insurer under TRIPRA;

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(x)

Environmental Liability Insurance Policy covering the Properties scheduled thereon for pollution remediation and legal liability resulting from existing and new pollution events (such policy, the “PLL Policy”), with limits of Fifteen Million Dollars ($15,000,000) per incident and Twenty-Five Million Dollars ($25,000,000) in the aggregate with a deductible or self-insured retention of no more than Fifty Thousand Dollars ($50,000) per incident. Such PLL Policy shall be for term of at least two (2) years past the latest possible extended Maturity Date (the “Required PLL Period”); provided, however, Borrower may obtain such PLL Policies for less than the Required PLL Period, so long as at least ten (10) Business Days prior to the expiration thereof, Borrower renews, replaces or extends such PLL Policies for a term not less than the Required PLL Period. Notwithstanding anything to the contrary in the Loan Documents, in the event Borrower fails to renew, replace or extend the PLL Policies for a term not less than the Required PLL Period, such failure should not be a Default or Event of Default, provided, however the terms of Section 9.2(a)(vii) shall apply. In the event the limits which are in place on any of the PLL Policies as of the Closing Date are eroded by fifty percent (50%) or more due to claims, Borrower shall reinstate the available environmental coverage limits within sixty (60) days to the limits in place as of the Closing Date. Solely with respect to coverage for the Properties, such PLL Policies (i) shall name the Lender(s) as an additional named insured with an automatic right of assignment to one designated lender party in the event of default throughout the policy term(s); (ii) in the event the policy is cancelled by the insurers, a copy of such cancellation notice shall also be mailed to Administrative Agent; (iii) shall not be cancelled or materially modified where such modification would put the insurance out of compliance with this section herein by Borrower without prior written consent from Administrative Agent; and (iv) shall, throughout the policy term, include the same coverages, terms, conditions and endorsements as the PLL Policies approved on the Closing Date;

(xi)

intentionally omitted; and

(xii)

upon sixty (60) days’ written notice, such other reasonable insurance, including, but not limited to, sinkhole or land subsidence insurance, and in such reasonable amounts as Administrative Agent from time to time may reasonably request against such other insurable hazards which at the time are commonly insured against for property similar to the Individual Property located in or around the region in which such Individual Property is located.

(b)

All insurance provided for in Section 6.1(a) hereof, shall be obtained under valid and enforceable policies (collectively, the “Policies” or in the singular, the “Policy”), and shall satisfy the requirements set forth herein. The Policies shall be issued by financially sound and responsible insurance companies authorized to do business in the State and having a rating of “A-” or better by S&P; provided, however, that if Borrower elects to have its insurance coverage provided by a syndicate of insurers, then, if such syndicate consists of five (5) or more members, (A) with respect to sixty percent (60%) of such insurance coverage (or seventy-five percent (75%) if such syndicate consists of four (4) or fewer members), Borrower shall use commercially reasonable efforts to have such insurance provided by insurance companies having a claims paying ability rating of “A-” or better by S&P and (B) with respect to the remaining forty percent (40%) of the insurance coverage (or the remaining twenty-five percent (25%) if such syndicate consists of four (4) or fewer members), Borrower shall use commercially reasonable efforts to have such insurance provided by insurance companies having a claims paying ability rating of “BBB+” or better by S&P (the “40% Standard”); provided, if after using commercially reasonable efforts, Borrower is unable to obtain any or all of such forty percent (40%) of insurance coverage from insurance companies meeting the 40% Standard (the amount of such insurance Borrower is unable to obtain, the “40% Gap”), the 40% Gap shall be provided by insurance companies having a claims paying ability rating of “A-:VIII” or better in the current Best’s Insurance Reports. Provided further, Borrower shall be permitted to maintain a portion of the insurance coverage required hereunder with insurance companies which do not meet the foregoing requirements (“Otherwise Rated Insurers”) in their current participation amounts and positions within the syndicate provided that if the current AM Best rating of any such Otherwise Rated Insurer is withdrawn or downgraded below the date hereof, Borrower shall replace any Otherwise Rated Insurer with an insurance company meeting the rating requirements set forth hereinabove. Notwithstanding anything to the contrary, Borrower shall be permitted without Administrative Agent’s consent to replace any insurer under a policy required hereunder so long as the new insurer satisfies the ratings requirements set forth herein and such replacement policies and insurers otherwise satisfy the requirements set forth in Section 6.1(a) through Section 6.1(e) hereof. Borrower shall deliver to Administrative Agent (1) upon the expiration dates of the Policies theretofore furnished to Administrative Agent, certificates of insurance evidencing the Policies and (2) within five (5) Business Days of Administrative Agent’s request, any other documentation evidencing the Policies (including without limitation certified copies of the Policies or binders if the Policies have not yet been issued) and of the payment of the premiums then due thereunder (the “Insurance Premiums”) as may be reasonably requested by Administrative Agent from time to time.

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(c)

Any blanket insurance Policy shall be subject to Administrative Agent’s prior approval (such approval not to be unreasonably withheld) and shall provide the same protection as would a separate Policy insuring only each Individual Property in compliance with the provisions of Section 6.1(a) hereof (any such blanket policy, an “Acceptable Blanket Policy”), subject to review and approval by Administrative Agent based on the (i) schedule of locations and values, and (ii) the Portfolio PML Reports for catastrophic perils (the “Portfolio PML Reports”), both to be provided on an annual basis and such other documentation required by Administrative Agent. Further, to the extent the Policies are maintained pursuant to an Acceptable Blanket Policy that covers more than one location within a one thousand (1,000) foot radius of the Property (the “Radius”), the limits of such Acceptable Blanket Policy must be sufficient to maintain property and terrorism coverage as set forth in this Section 6.1 for the Property and any and all other locations combined within the Radius that are covered by such Acceptable Blanket Policy calculated on a total insured value basis.

(d)

All Policies of insurance provided for or contemplated by Section 6.1(a) shall name Xxxxxxxx as a named insured and, in the case of liability coverages (other than the PLL Policy, as to which Administrative Agent for the benefit of Lender is the named insured), shall name Administrative Agent, for the benefit of Lender, as the additional insured on a form acceptable to Administrative Agent, as its interests may appear, and all property insurance Policies described in Section 6.1(a) shall name Administrative Agent, for the benefit of Xxxxxx, as a mortgagee and lender loss payee (which mortgagee and loss payee rights shall remain expressly subject to the terms and conditions of Section 6.4(a)), and shall contain a standard non‑contributing mortgagee clause in favor of Administrative Agent providing that the loss thereunder shall be payable to Administrative Agent and guaranteeing thirty (30) days’ notice of cancellation to Administrative Agent except ten (10) days’ notice for non-payment of premium.

(e)

Each Policy shall contain clauses or endorsements to the effect that:

(i)

no act or negligence of Borrower, or anyone acting for Borrower, or of any Tenant or other occupant, or failure to comply with the provisions of any Policy, which might otherwise result in a forfeiture of the insurance or any part thereof, or exercise of Administrative Agent’s and Xxxxxx’s rights or remedies hereunder or any other Loan Document, shall in any way affect the validity or enforceability of the insurance insofar as Administrative Agent or Lender is concerned;

(ii)

such Policy shall not be canceled without at least thirty (30) days written notice to Administrative Agent and any other party named therein as an additional insured or, if issuer will not or cannot provide the notices required herein, Borrower shall be obligated to provide such notice;

(iii)

the issuer thereof shall give ten (10) days’ written notice to Administrative Agent if the issuers of such Policy elect not to renew the Policy prior to its expiration or, if issuer will not or cannot provide the notices required herein, Borrower shall be obligated to provide such notice; and

(iv)

Neither Administrative Agent nor Lender shall be liable for any Insurance Premiums thereon or subject to any assessments thereunder.

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(f)

Borrower shall deliver to Administrative Agent, within ten (10) days of Administrative Agent’s written request, certificates of insurance and Portfolio PML Reports, in a form acceptable to the Administrative Agent, setting forth the particulars as to all Policies required hereunder, that all premiums due thereon have been paid and that the same are in full force and effect. Upon the expiration date of each of the Policies required hereunder, Xxxxxxxx shall deliver to Administrative Agent a certificate of insurance, evidencing renewal of coverage as required herein or binders of all such renewal Policies, if available, and Portfolio PML Reports provided that if the forgoing are not available as of such date, then Borrower shall deliver to Administrative Agent upon the expiration date of each of the Policies required hereunder, evidence reasonably satisfactory to Administrative Agent that the coverages required herein shall have been timely renewed, and shall promptly deliver to Administrative Agent such certificates and/or binders once they are available. Within thirty (30) days of written request by the Administrative Agent, Xxxxxxxx shall provide declaration pages of all Policies required hereunder. Administrative Agent shall not be deemed by reason of the custody of any Policies, certificates or binders or copies thereof to have knowledge of the contents thereof. If Borrower fails to maintain any Policy as required pursuant to this Section 6.1, Administrative Agent may, at its option, obtain such Policy using such carriers and agencies as Administrative Agent shall elect from year to year (until Borrower shall have obtained such Policy in accordance with this Section 6.1) and pay the premiums therefor, and Borrower shall reimburse Administrative Agent on demand for any premium so paid, with interest thereon at the Default Rate from the time such premiums are paid by Administrative Agent until the same are reimbursed by Xxxxxxxx, and the amount so owing to Administrative Agent shall constitute a portion of the Debt. The insurance obtained by Administrative Agent pursuant to the foregoing may, but need not, protect Xxxxxxxx’s interest, and the same may not pay any claim that Borrower makes or any claim that is made against Borrower in connection with any Individual Property.

(g)

In the event of foreclosure of any Mortgage or other transfer of title to any Individual Property in extinguishment in whole or in part of the Debt, all right, title and interest of Xxxxxxxx in and to the Policies then in force concerning such Individual Property and all proceeds payable thereunder with respect to such Individual Property shall thereupon vest in the purchaser of such foreclosure or Administrative Agent or other transferee in the event of such other transfer of title.

Section

6.2 Casualty. If an Individual Property shall be damaged or destroyed, in whole or in part, by fire or other casualty (a “Casualty”) and the cost to restore the Individual Property is reasonably expected to exceed $250,000, Borrower shall (x) solely if the cost to restore the Individual Property is reasonably expected to exceed the Casualty/Condemnation Threshold Amount, give prompt written notice of such damage to Administrative Agent and (y) promptly commence and diligently prosecute the completion of the Restoration of the Individual Property pursuant to Section 6.4 hereof as nearly as possible to the condition the Individual Property was in immediately prior to such Casualty, with such Alterations as may be reasonably approved by Administrative Agent (to the extent approval thereof is required pursuant to Section 5.1.21) and otherwise in accordance with Section 6.4 hereof. Borrower shall pay all costs of such Restoration whether or not such costs are covered by insurance. Administrative Agent may, but shall not be obligated to, make proof of loss if not made promptly by Borrower. In addition, Administrative Agent may participate in any settlement discussions with any insurance companies with respect to any Casualty in which the Net Proceeds or the costs of completing the Restoration are equal to or greater than the Casualty/Condemnation Threshold Amount, and Borrower shall deliver to Administrative Agent all instruments reasonably required by Administrative Agent to permit such participation.

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Section

6.3 Condemnation. Borrower shall, other than with respect to (x) any proposed or threatened Condemnation which (i) results or would reasonably be expected to result in an Award that is less than Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) and (ii) does not and would not be reasonably expected to have an Individual Material Adverse Effect with respect to the applicable Individual Property or (y) an immaterial temporary taking, promptly give Administrative Agent notice of any actual or threatened commencement of any proceeding for the Condemnation (other than an immaterial or temporary taking) of any Individual Property of which Borrower has knowledge and shall deliver to Administrative Agent copies of any and all papers served in connection with such proceedings. Administrative Agent may participate in any such proceedings that relate to a Condemnation of a material portion of an Individual Property, and Borrower shall from time to time deliver to Administrative Agent all instruments reasonably requested by it to permit such participation. Borrower shall, at its expense, diligently prosecute any such proceedings, and in the case of such proceedings that relate to a Condemnation of a material portion of an Individual Property, shall consult with Administrative Agent, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through Condemnation or otherwise (including, but not limited to, any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower shall continue to pay the Debt at the time and in the manner provided for its payment in the Note and in this Agreement and the Debt shall not be reduced until any Award shall have been actually received and applied by Administrative Agent, after the deduction of out-of-pocket expenses of collection, to the reduction or discharge of the Debt. Administrative Agent shall not be limited to the interest paid on the Award by the condemning authority but shall be entitled to receive out of the Award interest at the rate or rates provided herein or in the Note. Subject to Section 6.4(a), if any Individual Property or any portion thereof is taken by a condemning authority, (a) if Restoration of such Individual Property would be deemed feasible by a prudent lender acting reasonably based upon the nature of the Condemnation, Borrower shall promptly commence and diligently prosecute the Restoration of the applicable Individual Property pursuant to Section 6.4 hereof and otherwise comply with the provisions of Section 6.4 hereof; provided, that, Borrower shall not be obligated to pursue completion of the Restoration if Administrative Agent is obligated to disburse Net Proceeds pursuant to Section 6.4 hereof with respect thereto (and Borrower has satisfied all applicable conditions to such disbursement) and Administrative Agent fails to disburse such proceeds and (b) if Restoration of such Individual Property is not considered feasible by a prudent lender acting reasonably based upon the nature of the Condemnation, then Administrative Agent shall apply the Net Proceeds of such Condemnation to the principal of the Loan in accordance with Section 2.4.2 hereof. If any Individual Property is sold, through foreclosure or otherwise through the exercise of other remedies available to Administrative Agent under the Loan Documents, prior to the receipt by Administrative Agent, for the benefit of Lender, of the Award, Administrative Agent shall have the right, whether or not a deficiency judgment on the Note shall have been sought, recovered or denied, to receive the Award, or a portion thereof sufficient to pay the Debt, which amount shall be applied toward payment of the Debt (and any remaining amount shall be remitted by Administrative Agent to Borrower).

Section

6.4 Restoration. The following provisions shall apply in connection with the Restoration of any Individual Property:

(a)

If the Net Proceeds shall be less than the Casualty/Condemnation Threshold Amount and the estimated costs of completing the Restoration shall be less than the Casualty/Condemnation Threshold Amount, the Net Proceeds (i) if the same are paid by the insurance company or the condemnation authority directly to Borrower may be retained by Borrower or (ii) if the same are paid by the insurance company or the condemnation authority to Administrative Agent, will be disbursed by Administrative Agent to Borrower upon receipt, provided that, in each case, no Event of Default shall have occurred and be continuing at the time of the disbursement and, provided further that, with respect to subclause (ii) above, and to the extent the Net Proceeds exceeds $250,000, Borrower delivers to Administrative Agent an Officer’s Certificate to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of Section 6.4(b)(i)(D), (E), (G) and (H); except that, with respect to any Casualty or Condemnation of a non-income producing portion of an Individual Property that is not (x) necessary for the Permitted Uses at the Individual Property impacted by such Casualty or Condemnation prior to such Casualty or Condemnation or (y) required for such Individual Property to comply with Legal Requirements in all material respects (in each case, unless such Individual Property can be reconfigured to provide for Permitted Uses or to comply with Legal Requirements in all material respects, as applicable, without (A) incurring any material cost and (B) materially disrupting the operation of Permitted Uses at the Individual Property following the Casualty or Condemnation), for which the Net Proceeds are less than the Casualty/Condemnation Threshold Amount and the estimated costs of completing the Restoration are less than the Casualty/Condemnation Threshold Amount, Borrower shall have no obligation to pursue completion of the Restoration of such Individual Property, provided that any Net Proceeds received by Borrower in connection with such Condemnation are deposited into the Lockbox Account to be disbursed in accordance with the terms of this Agreement.

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(b)

If the Net Proceeds are equal to or greater than the Casualty/Condemnation Threshold Amount or the costs of completing the Restoration is equal to or greater than the Casualty/Condemnation Threshold Amount, the Net Proceeds will be held by Administrative Agent and Administrative Agent shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.4. The term “Net Proceeds” for purposes of this Section 6.4 shall mean: (i) the net amount of all insurance proceeds received by Administrative Agent pursuant to Section 6.1(a)(i), Section 6.1(a)(ix) and Section 6.1(a)(x) as a result of such damage or destruction, after deduction of Administrative Agent’s and Borrower’s reasonable costs and expenses (including, but not limited to, reasonable counsel fees), if any, in collecting same (“Insurance Proceeds”) provided, that such costs and expenses of Borrower shall only be reimbursed if Administrative Agent is reasonably certain that there will be sufficient Net Proceeds to complete the Restoration (it being understood that to the extent Net Proceeds are not being made available for Restoration, the foregoing provision shall not apply, or if such Net Proceeds exceed the Release Amount for the applicable Individual Property, the foregoing proviso shall not apply as to the excess Net Proceeds above such Release Amount), or (ii) the net amount of the Award, after deduction of Administrative Agent’s and Xxxxxxxx’s reasonable costs and expenses (including, but not limited to, reasonable counsel fees), if any, in collecting same (“Condemnation Proceeds”), provided, that such costs and expenses of Borrower shall only be reimbursed if Administrative Agent is reasonably certain that there will be sufficient Net Proceeds to complete the Restoration (it being understood that to the extent Net Proceeds are not being made available for Restoration, the foregoing provision shall not apply, or if such Net Proceeds exceed the Release Amount for the applicable Individual Property, the foregoing proviso shall not apply as to the excess Net Proceeds above such Release Amount), whichever the case may be.

(i)

The Net Proceeds shall be made available to Borrower for Restoration (1) if required pursuant to the terms of a Non-Disturbance Agreement entered into with a Tenant with the approval of Administrative Agent or satisfaction of the conditions set forth below but subject to Section 6.4(f) or (2) upon the satisfaction of the following conditions:

(A)

no Event of Default shall have occurred and be continuing as of the date the Net Proceeds are to be made available to Borrower;

(B)

(1) in the event the Net Proceeds are Insurance Proceeds, less than thirty percent (30%) of the Aggregate Square Footage of the Improvements on the Individual Property has been damaged, destroyed or rendered unusable as a result of such Casualty or (2) in the event the Net Proceeds are Condemnation Proceeds, (w) subject to Section 6.4(a), less than thirty percent (30%) of the land constituting the Individual Property is taken, (x) such land is located along the perimeter or periphery of the Individual Property, (y) no portion of the Improvements is located on such land and (z) the Individual Property continues to comply in all material respects with all Legal Requirements applicable thereto, including, without limitation, building and zoning ordinances and codes and certificates of occupancy;

(C)

Leases demising in the aggregate a percentage amount equal to or greater than fifty-one percent (51%) of the total rentable space in such Individual Property under executed and delivered Leases in effect as of the date of the occurrence of such Casualty or Condemnation shall remain in full force and effect during and after the completion of the Restoration (other than Leases that expire by their terms), notwithstanding the occurrence of any such Casualty or Condemnation, whichever the case may be, and Borrower and/or Tenant, as applicable under the respective Lease, will make all necessary repairs and restorations thereto at their sole cost and expense;

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(D)

Borrower shall, subject to Force Majeure and any delay caused by Administrative Agent’s failure to approve the Restoration budget required by Section 6.4(b)(i)(J) hereof, commence the Restoration as soon as reasonably practicable (but, provided a Force Majeure delay has not occurred, in no event later than one hundred twenty (120) days after such Casualty or Condemnation, whichever the case may be, occurs; provided, that such one hundred twenty (120) day period shall be extended until up to one hundred eighty (180) days after the occurrence of the Casualty or Condemnation if Borrower is working in good faith to commence the Restoration) and shall diligently pursue the same to satisfactory completion in compliance with all applicable Legal Requirements in any material respect; provided that for the purposes of this clause the filing of an application for a building permit for the Restoration work shall be deemed to be commencement of the Restoration provided Borrower promptly commences work thereafter and diligently proceeds to the completion of such Restoration;

(E)

Administrative Agent shall be reasonably satisfied that any operating deficits, including all scheduled payments of principal and interest under the Note, which will be incurred with respect to the Individual Property as a result of the occurrence of any such Casualty or Condemnation, whichever the case may be, will be covered out of (1) the Net Proceeds, (2) the insurance coverage referred to in Section 6.1(a)(i) hereof, if applicable, (3) any unabated rent payable under Leases with respect to the applicable Individual Property, or (4) by other funds of Borrower (including cash flows of the Properties and any Excess Cash Flow Reserve Funds permitted to be disbursed to Borrower to pay such costs and expenses pursuant to Section 7.5.2 hereof);

(F)

Administrative Agent shall be reasonably satisfied that, subject to Force Majeure and any delay caused by Administrative Agent’s failure to approve the Restoration budget required by Section 6.4(b)(i)(J) hereof, the Restoration will be completed on or before the earliest to occur of (1) six (6) months prior to the Maturity Date (after assuming the exercise of all remaining Extension Options), (2) intentionally omitted, (3) such time as may be required under all applicable Legal Requirements in order to repair and restore the affected Individual Property as nearly as possible to the condition it was in immediately prior to such Casualty or Condemnation, as applicable, or (4) the expiration of the insurance coverage referred to in Section 6.1(a)(i) hereof;

(G)

the Individual Property and the use thereof after the Restoration will be in compliance in all material respects with and permitted under all applicable Legal Requirements (including, as a legal non-conforming use);

(H)

such Casualty or Condemnation, as applicable, does not result in a permanent loss of access to the Individual Property or the related Improvements;

(I)

the Net Operating Income with respect to the applicable Individual Property after giving effect to the Restoration, and calculated on a pro forma “as stabilized” basis, shall be equal to or greater than seventy-five percent (75%) of the Net Operating Income with respect to such Individual Property as of the Closing Date;

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(J)

Borrower shall deliver, or cause to be delivered, to Administrative Agent a detailed budget approved in writing by Xxxxxxxx’s architect or engineer stating the estimated cost of completing the Restoration, which budget shall be subject to Administrative Agent’s approval in the same manner as each Annual Budget is to be approved by Administrative Agent during the continuance of a Cash Sweep Period as provided in Section 5.1.11(f), provided that, for purposes of clarity, all “deemed approval” provisions shall apply with respect to any Administrative Agent approval of the Restoration budget; and

(K)

the Net Proceeds together with any cash or cash equivalent deposited by Borrower with Administrative Agent for the benefit of Lender, Letter of Credit delivered to Administrative Agent for the benefit of Lender and any Excess Cash Flow Reserve Funds permitted to be disbursed to Borrower to pay such costs and expenses pursuant to Section 7.5.2 hereof are sufficient in Administrative Agent’s reasonable discretion to cover the cost of the Restoration.

(ii)

The Net Proceeds shall be held by Administrative Agent in an interest-bearing Eligible Account and, until disbursed in accordance with the provisions of this Section 6.4(b), shall constitute additional security for the Debt and the Other Obligations. The Net Proceeds shall be disbursed by Administrative Agent to, or as directed by, Borrower from time to time during the course of the Restoration, upon receipt of evidence reasonably satisfactory to Administrative Agent that (A) all materials installed and work and labor performed (except to the extent that they are to be paid for out of the requested disbursement) in connection with the Restoration have been paid for in full, and (B) there exist no notices of pendency, stop orders, mechanic’s or materialman’s liens or notices of intention to file same, or any other liens or encumbrances of any nature whatsoever on the applicable Individual Property arising out of the Restoration which have not either been fully bonded to the reasonable satisfaction of Administrative Agent and discharged of record or in the alternative fully insured to the reasonable satisfaction of Administrative Agent by the Title Company.

(iii)

All plans and specifications required in connection with the Restoration shall be subject to prior review and acceptance in all respects by Administrative Agent and by an independent consulting engineer selected by Administrative Agent (the “Casualty Consultant”). Administrative Agent shall have the use of the plans and specifications and all permits, licenses and approvals required or obtained in connection with the Restoration. The identity of the contractors, subcontractors and materialmen engaged in the Restoration, as well as the contracts under which they have been engaged, shall be subject to prior review and reasonable approval by Administrative Agent and the Casualty Consultant. All actual, reasonable out-of-pocket costs and expenses incurred by Administrative Agent in connection with making the Net Proceeds available for the Restoration including, without limitation, reasonable counsel fees and disbursements and the Casualty Consultant’s fees, shall be paid by Borrower. At any time that Administrative Agent’s approval is required under this clause (iii), provided no Event of Default is continuing, Administrative Agent’s approval shall be deemed granted if the Deemed Approval Requirements have been satisfied with respect thereto.

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(iv)

In no event shall Administrative Agent be obligated to make disbursements of the Net Proceeds in excess of an amount equal to the costs actually incurred from time to time for work in place as part of the Restoration, as certified by the Casualty Consultant, minus the Casualty Retainage. The term “Casualty Retainage” shall mean an amount equal to (i) ten percent (10%) of the costs actually incurred for work in place as part of the Restoration, as certified by the Casualty Consultant, until the Restoration has been fifty percent (50%) completed and (ii) thereafter, five percent (5%) of the costs actually incurred for work in place as part of the Restoration, as certified by the Casualty Consultant, until the Restoration has been completed. The Casualty Retainage shall in no event, and notwithstanding anything to the contrary set forth above in this Section 6.4(b), be less than the amount actually held back by Borrower from contractors, subcontractors and materialmen engaged in the Restoration. The Casualty Retainage shall not be released until the Casualty Consultant certifies to Administrative Agent that the Restoration has been completed in accordance with the provisions of this Section 6.4(b) and that all approvals necessary for the re-occupancy and use of the Individual Property have been obtained from all appropriate governmental and quasi-governmental authorities, and Administrative Agent receives evidence satisfactory to Administrative Agent that the costs of the Restoration have been paid in full or will be paid in full out of the Casualty Retainage; provided, however, that Administrative Agent will release the portion of the Casualty Retainage being held with respect to any contractor, subcontractor or materialman engaged in the Restoration as of the date upon which the Casualty Consultant certifies to Administrative Agent that the contractor, subcontractor or materialman has satisfactorily completed all work and has supplied all materials in accordance with the provisions of the contractor’s, subcontractor’s or materialman’s contract, the contractor, subcontractor or materialman delivers the lien waivers (except that lien waivers from subcontractors who have performed work in the amount of $250,000 or less shall not be required) and evidence of payment in full of all sums due to the contractor, subcontractor or materialman as may be reasonably requested by Administrative Agent or by the Title Company, and Administrative Agent receives an endorsement to such Title Insurance Policy insuring the continued priority of the Lien of the related Mortgage and evidence of payment of any premium payable for such endorsement. If reasonably required by Administrative Agent, the release of any such portion of the Casualty Retainage shall be approved by the surety company, if any, which has issued a payment or performance bond with respect to the contractor, subcontractor or materialman.

(v)

Administrative Agent shall not be obligated to make disbursements of the Net Proceeds more frequently than once every calendar month.

(vi)

If at any time the Net Proceeds or the undisbursed balance thereof shall not, in the reasonable opinion of Administrative Agent in consultation with the Casualty Consultant, be sufficient to pay in full the balance of the costs which are estimated by the Casualty Consultant to be incurred in connection with the completion of the Restoration, Borrower shall, before any further disbursement of the Net Proceeds is made either (A) deposit the deficiency (the “Net Proceeds Deficiency”) with Administrative Agent for the benefit of Lender or (B) deliver a Letter of Credit in an amount equal to the Net Proceeds Deficiency. The Net Proceeds Deficiency deposited with Administrative Agent for the benefit of Lender, or a Letter of Credit delivered to Administrative Agent for the benefit of Lender, shall be held by Administrative Agent and shall be disbursed, or drawn upon, as applicable, for costs actually incurred in connection with the Restoration on the same conditions applicable to the disbursement of the Net Proceeds, and until so disbursed, or drawn upon, as applicable, pursuant to this Section 6.4(b) shall constitute additional security for the Debt and the Other Obligations.

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(vii)

The excess, if any, of the Net Proceeds and the remaining balance, if any, of the Net Proceeds Deficiency deposited with Administrative Agent for the benefit of Lender after the Casualty Consultant certifies to Administrative Agent that the Restoration has been completed in accordance with the provisions of this Section 6.4(b) (the “Excess Net Proceeds”) and Administrative Agent has received evidence reasonably satisfactory to Administrative Agent that all costs incurred in connection with the Restoration have been paid in full, shall be (A) if a Cash Sweep Period is then in effect, deposited in the Cash Management Account and applied in accordance with the Cash Management Agreement (or, at any time that a Cash Sweep Period is not in effect, remitted by Administrative Agent to Borrower and applied or distributed by Borrower subject to its compliance with the terms of this Agreement) or (B) if such Excess Net Proceeds are the result of a Condemnation, or if Borrower shall otherwise elect or if an Event of Default shall have occurred and shall be continuing at the time that Excess Net Proceeds become available, applied as a Net Proceeds Prepayment.

(c)

In the event of foreclosure of the Mortgage with respect to an Individual Property, or other transfer of title to an Individual Property in extinguishment in whole or in part of the Debt all right, title and interest of Borrower in and to the Policies that are not blanket Policies then in force concerning such Individual Property and all proceeds payable thereunder shall thereupon vest in the purchaser at such foreclosure or Administrative Agent or other transferee in the event of such other transfer of title.

(d)

Intentionally Omitted.

(e)

Administrative Agent shall, with reasonable promptness following any Casualty or Condemnation, notify Borrower whether or not Net Proceeds are required to be made available to Borrower for a Restoration pursuant to this Section 6.4 (or, if the same are not required to be made available to Borrower for Restoration pursuant to this Section 6.4, whether Administrative Agent will nevertheless make the same available, which election Administrative Agent may make in its sole discretion). All Net Proceeds and the Net Proceeds Deficiency not required to be made available for a Restoration pursuant to this Section 6.4 and any Excess Net Proceeds required to be applied in accordance with subclause (B) of Section 6.4(b)(vii) hereof (as applicable, a “Net Proceeds Prepayment”) shall be applied by Lender to the payment of the Debt in accordance with Section 2.4.2 hereof.

(f)

In addition to the foregoing, in connection with any Casualty or Condemnation, if (i) such Casualty or Condemnation shall be equal to or greater than twenty-five percent (25%) of the Aggregate Square Footage of the applicable Individual Property or (ii) the Net Proceeds are equal to or greater than the Casualty/Condemnation Threshold Amount and after Borrower shall have used commercially reasonable efforts to satisfy each of the conditions set forth in Section 6.4(b)(i) Borrower is unable to satisfy all such conditions (which shall not require any capital contributions to be made to Borrower or include any obligations of Borrower, Mezzanine Borrower or Guarantor to use any operating income or Rents from any Property other than the Individual Property that is the subject of such Casualty or Condemnation) and Administrative Agent does not disburse the Net Proceeds to Borrower for Restoration, then Borrower shall have the right (but not the obligation), regardless of any restrictions contained in Section 2.4.1 hereof, to prepay the Release Amount of the applicable Individual Property (a “Casualty/Condemnation Prepayment”) utilizing the Net Proceeds (together with other funds of the Borrower if such Net Proceeds are less than the Release Amount) and obtain the release of the applicable Individual Property from the Lien of the Mortgage thereon and related Loan Documents, provided that (A) Borrower shall have satisfied the requirements of Section 2.6.1(a)(i), (iv), (vi), (viii) and (ix), and Section 2.6.1(e) hereof (if applicable), (B) Borrower shall make the Casualty/Condemnation Prepayment on or before the second Payment Date occurring following the date the Net Proceeds shall be made available to Borrower for such intended Casualty/Condemnation Prepayment and (C) Borrower pays to Administrative Agent for the account of Lender, concurrently with making such Casualty/Condemnation Prepayment, the amounts required pursuant to Section 2.4.2(b) hereof. Notwithstanding anything in Section 6.2 or Section 6.3 to the contrary, Borrower shall not have any obligation to commence Restoration of an Individual Property upon delivery of the written notice required pursuant to Section 2.6.1(a)(i) hereof unless Borrower shall subsequently fail to pay to Administrative Agent the amounts required to be paid pursuant to Section 2.4.2(b) hereof. For the avoidance of doubt, no spread maintenance premium or other premium or penalty or charge shall be due with respect to a Casualty/Condemnation Prepayment.

149

(g)

Notwithstanding anything to the contrary contained in the Loan Documents with respect to the disbursement of Insurance Proceeds or Condemnation Proceeds in respect of any PILOT Property, the express provisions set forth in any PILOT Lease shall govern; provided, however, to the extent the compliance by Borrower with the terms and conditions of this Section 6.4 do not create a default under the terms and provisions of any PILOT Lease, as applicable, Borrower shall comply with the terms and provisions of this Section 6.4; provided, further, that Borrower shall not grant its consent, approval or waiver with respect to any disbursement of Insurance Proceeds or Condemnation Proceeds in respect of any PILOT Property if such disbursement would violate the terms and provisions of this Section 6.4 as may be requested or required in connection with the terms and provisions of such PILOT Lease, without first obtaining the written consent, approval, or waiver of Administrative Agent. Administrative Agent shall respond to any request for consent subject to the standards for consent set forth in any PILOT Lease; provided that any request for consent or approval shall either be sent (A) by the PILOT Lessor simultaneously to Administrative Agent or (B) by Borrower promptly following Xxxxxxxx’s receipt of such request for consent or approval from the PILOT Lessor.

ARTICLE VII

RESERVE FUNDS

Section

7.1 Intentionally Omitted.

Section

7.2 Tax and Insurance Reserve Funds.

7.2.1

Tax and Insurance Reserve Funds. During the continuance of any Cash Sweep Period, Borrower shall pay or cause to be paid to Administrative Agent, on each Payment Date, (A) one-twelfth (1/12) of the Taxes that Administrative Agent reasonably estimates will be payable during the next ensuing twelve (12) months (exclusive of any Taxes payable by Tenants under Leases in effect on the date hereof or which are entered into after the date hereof in accordance with this Agreement), in each case, in order to accumulate with Administrative Agent sufficient funds to pay all such Taxes at least thirty (30) days prior to their respective due dates (the “Tax Reserve Funds”) and (B) one-twelfth (1/12) of the Insurance Premiums that Administrative Agent reasonably estimates will be payable for the renewal of the coverage afforded by the Policies upon the expiration thereof in order to accumulate with Administrative Agent sufficient funds to pay all such Insurance Premiums at least thirty (30) days prior to the expiration of the Policies (the “Insurance Reserve Funds,” and collectively with the Tax Reserve Funds, the “Tax and Insurance Reserve Funds”), provided, that so long as no Event of Default is continuing, to the extent any of the insurance required to be maintained by Borrower under this Agreement or any other Loan Document is effected under one or more blanket insurance policies reasonably acceptable to Administrative Agent (which blanket insurance policy insures significant other real property not subject to the Lien of the Mortgage and owned, directly or indirectly, by Guarantor, Sponsor, a Permitted Assumption Party or an Affiliate of the foregoing, in an amount reasonably acceptable to Administrative Agent), Borrower shall not be required to make deposits to the Insurance Reserve Funds with respect to the Insurance Premiums applicable to such blanket policy. The account in which the Tax and Insurance Reserve Funds are held shall hereinafter be referred to as the “Tax and Insurance Reserve Account”. Administrative Agent will apply any Insurance Reserve Funds on deposit in the Tax and Insurance Reserve Account to payments of Insurance Premiums and will apply any Tax Reserve Funds on deposit in the Tax and Insurance Reserve Account to payments of Taxes, in each case, on or prior to the date such payments are due and, upon written request, shall provide to Borrower evidence of such payment; provided that if sufficient amounts are on deposit in the Tax and Insurance Reserve Account and Borrower continues to be an Affiliate of an Approved Sponsor Entity or a Public Vehicle, Administrative Agent shall within five (5) Business Days after receipt of Xxxxxxxx’s written request, release to Borrower the Tax Reserve Funds to timely pay all Taxes payable by Xxxxxxxx, or to reimburse Borrower for Taxes actually paid by Borrower so long Borrower’s written request is submitted prior to Administrative Agent having already paid such Taxes. Any such request for disbursement shall include an Officer’s Certificate setting forth the tax payments and jurisdictions in which such payments will be made by such disbursement. Upon the written request of Administrative Agent, Xxxxxxxx shall deliver to Administrative Agent receipts for payment or other evidence reasonably satisfactory to Administrative Agent that such Taxes have been paid. In making any payment from the Tax and Insurance Reserve Account, Administrative Agent may do so according to any bill, statement or estimate procured from the appropriate public office (each, a “Tax Bill”) (with respect to Taxes) or insurer or agent (with respect to Insurance Premiums), without inquiry into the accuracy of such bill, statement or estimate or into the validity of any tax, assessment, sale, forfeiture, tax lien or title or claim thereof. If at any time during which Borrower is required to make payments of Tax and Insurance Reserve Funds pursuant to this Section 7.2.1, the amount on deposit in the Tax and Insurance Reserve Account shall exceed the amounts due for Taxes and/or Insurance Premiums, as applicable, Administrative Agent shall, in its sole discretion, either (1) return any excess to Borrower or (2) credit such excess against future payments required to be made by Borrower to the Tax and Insurance Reserve Account pursuant to the provisions of this Section 7.2.1. If at the time that Borrower ceases to have an obligation to deposit Tax and Insurance Reserve Funds into the Tax and Insurance Reserve Account pursuant to this Section 7.2.1, there shall remain any amount on deposit in the Tax and Insurance Reserve Account, Administrative Agent shall promptly upon receipt of the written request of Xxxxxxxx, return such remaining amount to Borrower. If, at any time during which Borrower is required to make payments of Tax and Insurance Reserve Funds pursuant to this Section 7.2.1, Administrative Agent reasonably determines that the amount on deposit in the Tax and Insurance Reserve Account is not or will not be sufficient to pay Taxes and Insurance Premiums, as applicable, by the required payment dates set forth above in this Section 7.2.1, Administrative Agent shall notify Borrower in writing of such determination and, commencing with the first Payment Date following the date of Xxxxxxxx’s receipt of such written notice, Borrower shall increase its monthly payments to Administrative Agent by the amount that Administrative Agent reasonably estimates is sufficient to fund the deficiency. Any Tax and Insurance Reserve Funds remaining on deposit in the Tax and Insurance Reserve Account after the Debt has been paid in full shall be paid to Borrower. Upon the occurrence of a Cash Sweep Cure Date and provided that a Cash Sweep Period shall not then otherwise exist, amounts in the Tax and Insurance Reserve Account shall be released to Borrower on the next Payment Date.

150

Section

7.3 Intentionally Omitted.

Section

7.4 Replacement Reserve Account.

7.4.1

Deposits to Replacement Reserve Fund. During the continuance of any Cash Sweep Period, on each Payment Date, if and to the extent the amount then on deposit in the Replacement Reserve Account is less than the Replacement Reserve Cap, Borrower shall pay to Administrative Agent the Replacement Reserve Monthly Deposit (or such lesser amount which would cause the amounts on deposit in the Replacement Reserve Account to equal the Replacement Reserve Cap), if any, which amounts shall be held by Administrative Agent in accordance with Section 7.11 hereof and disbursed to Borrower in accordance with Section 7.4.2 in respect of the costs reasonably estimated by Administrative Agent in its sole discretion to be due for replacements, and repairs required to be made to the Properties during the calendar year (collectively, the “Replacements”). Amounts so deposited shall hereinafter be referred to as the “Replacement Reserve Fund” and the account in which such amounts are held shall hereinafter be referred to as the “Replacement Reserve Account”. Any amount held in the Replacement Reserve Account and allocated for an Individual Property shall be retained by Administrative Agent and credited toward the future Replacement Reserve Monthly Deposits required by Administrative Agent hereunder in the event such Individual Property is released from the Lien of the related Mortgage in accordance with Section 2.6 hereof. Upon a Cash Sweep Cure Date and provided that a Cash Sweep Period shall not then otherwise exist, amounts in the Replacement Reserve Account shall be released to Borrower on the next Payment Date.

7.4.2

Withdrawals from Replacement Reserve Fund. Administrative Agent shall disburse to Borrower the Replacement Reserve Funds (or any portion thereof) upon satisfaction by Borrower of each of the following conditions: (i) Borrower shall submit a request for payment to Administrative Agent at least ten (10) days prior to the date on which Borrower requests such payment be made, which request for payment shall specify the Replacements for which payment is requested and that such request is not duplicative of any request made for disbursement from the Excess Cash Flow Reserve Fund in accordance with the terms and conditions hereof; (ii) on the date such payment is to be made, no Event of Default shall be continuing; (iii) such request shall be accompanied by (A) an Officer’s Certificate (1) stating that all Replacements at the applicable Individual Property to be funded by the requested disbursement have been (or will be) completed in good and workmanlike manner and in accordance with all applicable Legal Requirements in all material respects, such certificate to be accompanied by a copy, of any material license, permit or other approval by any Governmental Authority required in connection with the tenant improvements, (2) identifying each Person to be paid by Borrower that supplied materials or labor in connection with the tenant improvements to be funded by the requested disbursement, and (3) stating that each such Person to be paid by Borrower has been paid or will have been paid the amounts then due and payable to such Person in connection with the funds to be disbursed; (iv) with respect to any request for payment relating to Replacements in excess of the Reserve Release Threshold, such request is accompanied by (X) lien waivers (except that lien waivers from subcontractors who have performed work in the amount of $250,000 or less shall not be required) or other evidence of payment reasonably satisfactory to Administrative Agent and (Y) at Administrative Agent’s option, a title search for the applicable Individual Property indicating that such Individual Property is free from all Liens not previously approved by Administrative Agent (other than Permitted Encumbrances); (v) intentionally omitted; and (vi) such request is accompanied by such other evidence as Administrative Agent shall reasonably request that the Replacements at the applicable Individual Property to be funded by the requested disbursement have been completed and are paid for or will be paid upon such disbursement to Borrower. Administrative Agent shall not be required to make disbursements from the Replacement Reserve Account with respect to the Properties (i) more than twice in each calendar month and (ii) unless such requested disbursement is in an amount greater than the Minimum Disbursement Amount (or a lesser amount if the total amount on deposit in the Replacement Reserve Account on the date of the requested disbursement is less than the Minimum Disbursement Amount), in which case only one disbursement of the amount remaining in the Replacement Reserve Account shall be made. Any Replacement Reserve Funds remaining on deposit in the Replacement Reserve Account after the Debt has been paid in full shall be paid to Borrower.

151

Section

7.5 Excess Cash Flow Reserve Fund.

7.5.1

Deposits to Excess Cash Flow Reserve Fund. During the continuance of any Cash Sweep Period, all Excess Cash Flow shall be held by Administrative Agent as additional security for the Loan, all as more particularly provided in the Cash Management Agreement; provided, notwithstanding anything in the Loan Documents to the contrary herein, (i) the amount of Excess Cash Flow required to be held in the Cash Management Account pursuant to this Section 7.5.1 and Section 3(j) of the Cash Management Agreement shall in no event exceed the Debt Yield Trigger Cure Prepayment Amount (such cap, the “Excess Cash Flow Deposit Cap” and the amount reserved in the Excess Cash Flow Reserve Account, the “Reserved Excess Cash Flow”); provided, that the amount of the Excess Cash Flow Deposit Cap shall be recalculated on a quarterly basis on each Debt Yield Determination Date and (ii) Administrative Agent shall disburse any Free Excess Cash Flow to an account designated by Borrower and such Free Excess Cash Flow shall not be additional security for the Loan or otherwise subject to any restrictions or limitations set forth in the Loan Documents. The Reserved Excess Cash Flow so held by Administrative Agent shall be hereinafter referred to as the “Excess Cash Flow Reserve Funds” and the account in which such amounts are held shall hereinafter be referred to as the “Excess Cash Flow Reserve Account”.

7.5.2

Release of Excess Cash Flow Reserve Fund.

(a)

So long as no Event of Default has occurred and is continuing, Borrower will have access to the Excess Cash Flow Reserve Account and Excess Cash Flow Reserve Funds shall be disbursed by Administrative Agent to Borrower within three (3) Business Days of Borrower’s written request to pay for cost and expenses in connection with the ownership, management and/or operation of the Properties, including, without limitation for (i) payment of shortfalls in the payment of Debt Service and/or Mezzanine Debt Service; (ii) payment of shortfalls in the required deposits into the Reserve Accounts (in each case, to the extent required in this Agreement and the Cash Management Agreement); (iii) at Borrower’s option, principal prepayments of the Loan and the Mezzanine Loan, if any; (iv) at Borrower’s option, prepayments of the Loan and Mezzanine Loan which are required to satisfy any Debt Yield test hereunder or under the Mezzanine Loan Agreement (which prepayment shall be applied pro rata between the Loan and the Mezzanine Loan (which portion of such prepayment applicable to the Loan shall be applied to the Notes in accordance with Section 2.4.4 hereof)); (v) payment of any Operating Expenses (including any Capital Expenditures); (vi) payment of management fees due and payable under the Management Agreement; (vii) payment of emergency repairs and/or life-safety items, including any such repairs or items which are Capital Expenditures, Administrative Agent hereby acknowledging that it shall endeavor to fund such requests within one (1) Business Day of request by Borrower, provided further that any failure to fund such request within one (1) Business Day shall in no event create any liability for Administrative Agent hereunder; (viii) payment of tenant improvement costs, tenant allowances, tenant relocation costs, tenant reimbursements, tenant inducement payments and leasing commission obligations or other expenditures required under Leases entered into in accordance with the terms of Section 5.1.20 hereof or existing as of the Closing Date; (ix) costs associated with Interest Rate Protection Agreements with respect to the Loan or a Mezzanine Loan (if any), including Replacement Interest Rate Protection Agreements, Substitute Interest Rate Protection Agreements and Converted Interest Rate Protection Agreements; (x) vacant space preparation costs and marketing costs with respect to potential leasing at the Properties; (xi) payment of any shortfall of Net Proceeds with respect to the costs and expenses of Restoration of an Individual Property after a Casualty or Condemnation incurred by, or on behalf of, the Borrower in connection therewith; (xii) payment of any fees and costs payable pursuant to the Loan Documents or the Mezzanine Lender pursuant to the Mezzanine Loan Documents, including costs to extend the PLL Policy; (xiii) legal, audit and accounting costs (including actual costs incurred by Sponsor (directly or indirectly) and its service providers for back office accounting and for costs associated with the Properties or Borrower), provided, that such funds shall not be used for the legal fees incurred in connection with the enforcement of Borrower’s or any Affiliates of Borrower’s rights pursuant to the Loan Documents or Mezzanine Borrower’s rights under the Mezzanine Loan Documents, respectively; (xiv) any Required REIT Distributions; (xv) Approved Alterations or Required Repairs; (xvi) costs and expenses payable pursuant to any PILOT Lease; (xvii) rent or other costs or expenses payable pursuant to any PILOT Lease (other than payments that are made by book entry and do not require any out-of-pocket expenses to be incurred by Borrower); (xviii) payment of condominium common charges, association fees or other expenses and charges of condominiums (if any) to the extent not paid as association fees out of the Lockbox Account; (xix) intentionally omitted, (xx) any corporate overhead reasonably allocated by Sponsor to the Properties and (xxi) such other items as may be approved in writing by the Administrative Agent, as determined in Administrative Agent’s reasonable discretion provided that, for purposes of clarity, no Mezzanine Lender shall be able to approve items for disbursement from the Excess Cash Flow Reserve Account pursuant to this clause (xxi).

152

(b)

Any Excess Cash Flow Reserve Funds remaining on deposit in the Excess Cash Flow Reserve Account upon a Cash Sweep Cure Date or the date Borrower delivers an Excess Cash Flow Guaranty pursuant to Section 7.5.2(c) hereof shall be paid (i) provided a Cash Sweep Period under a Mezzanine Loan (if any) is then continuing or any amounts are then due and payable to Mezzanine Lender, to the Mezzanine Lender to be held by Mezzanine Lender pursuant to the Mezzanine Loan Agreement for the purposes described therein, or (ii) if no Mezzanine Loan is then outstanding or if there does not then exist a Cash Sweep Period under the Mezzanine Loan and all amounts due and payable to the Mezzanine Lender have been paid, to Borrower. Any Excess Cash Flow Reserve Funds remaining on deposit in the Excess Cash Flow Reserve Account after the Debt and all amounts due to Administrative Agent and Lender have been paid in full shall be paid to (y) to the most senior Mezzanine Lender to be held by such Mezzanine Lender pursuant to the related Mezzanine Loan Agreement for the same purposes as those described therein or (z) if the Mezzanine Loans are no longer outstanding, Borrower.

(c)

In lieu of Cash Management Bank depositing all Reserved Excess Cash Flow into the Excess Cash Flow Reserve Account in accordance with Section 7.5 hereof and Section 3(j) of the Cash Management Agreement and for so long as no Event of Default has occurred and is continuing, Borrower shall have the right to cause Excess Cash Flow Guarantor to deliver to Administrative Agent, for the benefit of Lender, the Excess Cash Flow Guaranty, provided, that as a condition precedent to the delivery of such Excess Cash Flow Guaranty to Administrative Agent, for the benefit of Lender, (i) Borrower shall deliver to Administrative Agent, at Borrower’s sole cost and expense, a legal opinion that the Excess Cash Flow Guaranty has been duly authorized, executed and delivered by Excess Cash Flow Guarantor, and that the Excess Cash Flow Guaranty is valid, binding and enforceable against Excess Cash Flow Guarantor in accordance with its terms, which opinions shall be in form and substance substantially similar to the opinions delivered by Xxxxxxxx’s counsel upon the closing of the Loan with respect to validity, authority, execution and enforceability, and which may be relied upon by Administrative Agent and (ii) if the Additional Insolvency Opinion Condition is satisfied, then Borrower shall deliver an Additional Insolvency Opinion reasonably acceptable to Administrative Agent, which takes into account such Excess Cash Flow Guaranty. In no instance shall Borrower be entitled to request, nor shall Administrative Agent be obligated to disburse, Reserved Excess Cash Flow to Borrower pursuant to this Section 7.5.2(c) in lieu of depositing the same into the Excess Cash Flow Reserve Account if (I) an Event of Default has occurred and is continuing, (II) such Reserved Excess Cash Flow is not guaranteed pursuant to the Excess Cash Flow Guaranty, and/or (III) such disbursement of such amounts would cause the Additional Insolvency Opinion Condition to be satisfied unless Borrower shall provide an Additional Insolvency Opinion in form and substance reasonably acceptable to Administrative Agent. For the avoidance of doubt, during the continuance of a Cash Sweep Period, (x) any Reserved Excess Cash Flow that is in excess of the amount of Excess Cash Flow guaranteed pursuant to the Excess Cash Flow Guaranty shall be deposited into the Excess Cash Flow Reserve Account and (y) all Free Excess Cash Flow shall be disbursed to a Non-Pledged Account designated by Borrower.

153

Section

7.6 Rate Cap Reserve Funds. In the event that Borrower elects, in its sole and absolute discretion, to satisfy the Alternate Strike Price Condition, Borrower shall either (i) deposit cash in the Rate Cap Reserve Account, (ii) deliver a Letter of Credit and/or (iii) cause Rate Cap Reserve Guarantor to deliver a guaranty in the form attached hereto as Exhibit H (the “Rate Cap Reserve Guaranty”), in an aggregate amount equal to the applicable Rate Cap Reserve Amount (provided, that, in the event the Additional Insolvency Opinion Condition is satisfied as a result of the delivery of the Rate Cap Reserve Guaranty and/or a Letter of Credit, Administrative Agent has received an Additional Insolvency Opinion reasonably acceptable to Administrative Agent with respect to the same), in each case, which shall be held for disbursement pursuant to this Section 7.6. Amounts so deposited in cash to the Rate Cap Reserve Account shall hereinafter be referred to as Borrower’s “Rate Cap Reserve Funds”, and the account in which such Rate Cap Reserve Funds are held shall be referred to as Borrower’s “Rate Cap Reserve Account”. Provided no Event of Default is then continuing, and provided that the balance of the Rate Cap Reserve Account (together with all amounts guaranteed under the Rate Cap Reserve Guaranty, if any) is greater than zero, all Rate Cap Reserve Funds shall be applied on each Payment Date as follows: (a) with respect to any Interest Period in which the Applicable Index Rate as of the related Determination Date is less than the Required Strike Price, the Monthly Rate Cap Reserve Reduction Amount shall be distributed to Borrower; (b) with respect to any Interest Period in which the Applicable Index Rate as of the related Determination Date is greater than or equal to the Alternate Strike Price, (x) the Monthly Rate Cap Reserve Amount shall be held by Administrative Agent and shall be applied by Administrative Agent to the Debt Service that is due and payable on the Payment Date related to such Interest Period and (y) an amount equal to the Monthly Rate Cap Reserve Reduction Amount minus the amount retained by Administrative Agent pursuant to clause (x) above shall be distributed to Borrower; and (c) with respect to any Interest Period in which the Applicable Index Rate as of the related Determination Date is greater than or equal to the Required Strike Price, but less than the Alternate Strike Price, (x) an amount equal to the Monthly Strike Price Differential Amount shall be held by Administrative Agent and shall be applied by Administrative Agent to the payment of the Debt Service that is due and payable on the Payment Date related to such Interest Period and (y) an amount equal to the Monthly Rate Cap Reserve Reduction Amount minus the amount retained by Administrative Agent pursuant to clause (x) above shall be distributed to Borrower. Any amount remaining in the Rate Cap Reserve Account after the Debt has been paid in full shall be paid to Borrower. In the event that a Letter of Credit is delivered pursuant to this Section 7.6, the ability of the Administrative Agent to draw on such Letter of Credit shall be correspondingly reduced on a pro rata basis by any distributions made to Borrower from the Rate Cap Reserve Funds pursuant to this Section 7.6. So long as no Priority Payment Cessation Event has occurred, notwithstanding the foregoing or anything contained herein to the contrary, (i) in no event shall Administrative Agent apply any portion of the Rate Cap Reserve Amount to the payment of any Debt Service owed due to Term SOFR exceeding the Alternate Strike Price and (ii) the Rate Cap Reserve Amount shall be treated as if the same were an Interest Rate Protection Agreement under the Loan Documents. So long as a Priority Payment Cessation Event has not occurred, upon the earliest of (i) Borrower’s entrance into an Interest Rate Protection Agreement in connection with an Extension Option pursuant to Section 2.8 hereof, (ii) Borrower’s entrance into an Interest Rate Protection Agreement or Replacement Interest Rate Protection Agreement in accordance with the terms hereof with a Strike Price equal to the Required Strike Price and (iii) the repayment of the Loan in full, (x) all amounts outstanding in cash in the Rate Cap Reserve Account with respect to the Interest Rate Protection Agreement so replaced or extended shall (1) so long as no Cash Sweep Period has occurred and is continuing, be disbursed to Borrower and (2) to the extent a Cash Sweep Period has occurred and is continuing, be deposited by Administrative Agent into the Cash Management Account and (y) any Letter of Credit and/or Rate Cap Reserve Guaranty with respect to the Interest Rate Protection Agreement so replaced or extended shall be returned to Borrower or released, as applicable. In addition to the foregoing, (A) each Letter of Credit delivered with respect to the Alternate Strike Price Condition shall be released upon Borrower’s deposit of cash in the Rate Cap Reserve Account and/or Rate Cap Reserve Guarantor’s delivery of a Rate Cap Reserve Guaranty in an aggregate amount equal to the then‑current Rate Cap Reserve Amount, (B) each Rate Cap Reserve Guaranty shall be released upon Borrower’s delivery of a Letter of Credit and/or Borrower’s deposit of cash in the Rate Cap Reserve Account in an aggregate amount equal to the then-current Rate Cap Reserve Amount and (C) all amounts on deposit in the Rate Cap Reserve Account shall be disbursed as set forth in clause (x) above upon Borrower’s delivery of a Letter of Credit and/or a Rate Cap Reserve Guaranty in an aggregate amount equal to the then-current Rate Cap Reserve Amount.

154

Section

7.7 Intentionally Omitted.

Section

7.8 Intentionally Omitted.

Section

7.9 Intentionally Omitted.

Section

7.10 Letter of Credit.

(a)

In addition to or in lieu of making the payments to the Replacement Reserve Account as set forth in Section 7.4.1 or the Rate Cap Reserve Account as set forth in Section 7.6.1, Borrower may from time to time deliver to Administrative Agent, for the benefit of Xxxxxx, a Letter of Credit in accordance with the provisions of this Section 7.10. Any Letter of Credit from time to time delivered in lieu of payments to the Replacement Reserve Account or the Rate Cap Reserve Account shall be for not less than the amount of deposits required to be made by Borrower to such Replacement Reserve Account or the Rate Cap Reserve Account for the twelve (12) calendar months following the date such Letter of Credit is delivered to Administrative Agent in the Replacement Reserve Account or the Rate Cap Reserve Account (the “Reserve Cap Period”). If during the term of any Letter of Credit delivered by Borrower pursuant to this Section 7.10, the amount of deposits required to be made by Borrower to the Replacement Reserve Account or the Rate Cap Reserve Account for the Reserve Cap Period following such date shall increase to an amount exceeding the amount of such Letter of Credit, Borrower shall, at its option (A) deliver to Administrative Agent an amendment to such Letter of Credit or a replacement Letter of Credit which shall be in an amount not less than the aggregate amount of such deposits required to be made during the Reserve Cap Period or (B) make such excess deposits required to be made in the amounts and frequency set forth in Section 7.4.1 or Section 7.6.1. In no event shall Borrower be an account party to, or have or incur any reimbursement obligations in connection with, any Letter of Credit.

(b)

Borrower shall give Administrative Agent no less than ten (10) days’ revocable notice of Xxxxxxxx’s election to deliver a Letter of Credit on account of the Replacement Reserve Account or the Rate Cap Reserve Account and Borrower shall pay to Administrative Agent all of Administrative Agent’s reasonable out-of-pocket costs and expenses in connection therewith, if any. Borrower shall not be entitled to draw from any such Letter of Credit. Borrower may replace any Letter of Credit delivered on account of the Replacement Reserve Account or Rate Cap Reserve Account, as applicable, with a cash deposit to the Replacement Reserve Account or Rate Cap Reserve Account pursuant to Section 7.4 or Section 7.6, as applicable. Prior to the return of such a Letter of Credit, Borrower shall deposit an amount equal to the amount that would be on deposit in the Replacement Reserve Account or Rate Cap Reserve Account (excluding any interest that may have accrued) if such Letter of Credit had not been delivered.

(c)

Each Letter of Credit delivered under this Agreement shall be additional security for the payment of the Debt. During the continuance of an Event of Default, Administrative Agent, on behalf of Lender, shall have the right, at its option, to draw on any Letter of Credit and to apply all or any part thereof to the payment of the items for which such Letter of Credit was established or to apply each such Letter of Credit to payment of the Debt in such order, proportion or priority as Administrative Agent may determine, provided, however, notwithstanding anything to the contrary contained in the Loan Documents, Administrative Agent shall not draw on any Letter of Credit delivered to satisfy the Alternate Strike Price Condition (other than in accordance with Section 7.6) unless and until the earlier to occur of (x) an Event of Default continuing with respect to Borrower’s failure to pay the Monthly Debt Service Payment Amount or (y) a Priority Payment Cessation Event.

155

(d)

In addition to any other right Administrative Agent may have to draw upon a Letter of Credit pursuant to the terms and conditions of this Agreement, Administrative Agent shall have the additional rights to draw in full any Letter of Credit: (i) with respect to any evergreen Letter of Credit, if Administrative Agent has received a notice from the issuing bank that the Letter of Credit will not be renewed and a substitute Letter of Credit is not provided at least twenty (20) days prior to the date on which the outstanding Letter of Credit is scheduled to expire; (ii) with respect to any Letter of Credit with a stated expiration date, if a substitute Letter of Credit is not provided at least twenty (20) days prior to the date on which the outstanding Letter of Credit is scheduled to expire; (iii) upon receipt of notice from the issuing bank that the Letter of Credit will be terminated (except if the termination of such Letter of Credit is permitted pursuant to the terms and conditions of this Agreement or a substitute Letter of Credit is provided); or (iv) if Administrative Agent has received notice that the bank issuing the Letter of Credit shall cease to be an Eligible Institution (except, in each case, Administrative Agent shall not have the right to draw in full any Letter of Credit delivered on account of the Replacement Reserve Account or Rate Cap Reserve Account, as applicable, if Borrower shall deposit an amount equal to the amount that would be on deposit in the Replacement Reserve Account or Rate Cap Reserve Account, as applicable (excluding any interest that may have accrued) if such Letter of Credit had not been delivered); provided, however, that in the event Administrative Agent receives any notice referred to in subclause (iv) hereof and Administrative Agent, in its reasonable discretion, determines that the security intended to be provided to Administrative Agent, for the benefit of Lender, by the related Letter of Credit is not thereby materially jeopardized, Borrower shall have ten (10) Business Days following receipt of notice from Administrative Agent in which to deliver to Administrative Agent a replacement Letter of Credit issued by an Eligible Institution; provided, further, that in the event Administrative Agent draws on any Letter of Credit upon the happening of an event specified in subclause (i), (ii), (iii) or (iv) above (but specifically excluding any draw related to the occurrence of an Event of Default), Administrative Agent shall return to Borrower the funds so drawn in the event Borrower provides Administrative Agent with a replacement Letter of Credit issued by an Eligible Institution within thirty (30) days following such draw. Notwithstanding anything to the contrary contained in the above, Administrative Agent is not obligated to draw any Letter of Credit upon the happening of an event specified in subclause (i), (ii), (iii) or (iv) above and shall not be liable for any losses sustained by Borrower due to the insolvency of the bank issuing the Letter of Credit if Administrative Agent has not drawn the Letter of Credit.

(e)

In the event that Xxxxxxxx elects to deliver a Letter of Credit pursuant to this Section 7.10 for which an Insolvency Opinion Affiliate provides collateral, and if as a result of the delivery of such Letter of Credit, the Additional Insolvency Opinion Condition is satisfied, then Borrower shall deliver an Additional Insolvency Opinion reasonably acceptable to Administrative Agent which takes into account such Letters of Credit.

Section

7.11 Reserve Accounts Generally.

(a)

Borrower grants to Administrative Agent, for the benefit of Xxxxxx, a perfected security interest in each of the Reserve Accounts and any and all monies now or hereafter deposited in each Reserve Account as additional security for payment of the Debt. Until expended, released or applied in accordance herewith, the Reserve Accounts shall constitute additional security for the Debt.

(b)

Subject to making Priority Waterfall Payments to the extent of funds available therefore in the Reserve Accounts prior to the occurrence of a Priority Payment Cessation Event, during the continuance of an Event of Default, Administrative Agent may, in addition to any and all other rights and remedies available to Administrative Agent, apply any sums then present in any or all of the Reserve Accounts to the payment of the Debt in any order in Administrative Agent’s and Lender’s sole discretion; provided, however, notwithstanding anything to the contrary contained in the Loan Documents, Administrative Agent shall not apply any amounts in the Rate Cap Reserve Fund (other than in accordance with Section 7.6) unless and until the earlier to occur of (x) an Event of Default continuing with respect to Xxxxxxxx’s failure to pay the Monthly Debt Service Payment Amount or (y) a Priority Payment Cessation Event.

156

(c)

All interest or other earnings on Reserve Funds shall be added to and become a part of such Reserve Funds and shall be disbursed in the same manner as other monies deposited in the applicable Reserve Account. The Reserve Funds shall be held in an Eligible Account and shall bear interest at a money market rate selected by Administrative Agent, provided that Borrower shall have the right to direct Administrative Agent to invest sums on deposit in the Eligible Account in Permitted Investments if (a) such investments are then regularly offered by Administrative Agent for accounts of this size, category and type, (b) such investments are permitted by applicable Legal Requirements, (c) the maturity date of the Permitted Investment is not later than the date on which the applicable Reserve Funds are required for payment of an obligation for which the applicable Reserve Account was created, and (d) no Event of Default shall have occurred and be continuing. Borrower shall be responsible for payment of any federal, state or local income or other tax applicable to the interest earned on the Reserve Funds credited or paid to Borrower, provided that, so long as no Event of Default is continuing, such taxes may be paid from the applicable Reserve Funds. No other investments of the sums on deposit in the Reserve Accounts shall be permitted except as set forth in this Section 7.11(c). All interest on Reserve Funds (i) shall be added to and become a part of such Reserve Fund, (ii) shall accrue to the benefit of Borrower and (iii) shall be disbursed in the same manner as other monies deposited in such Reserve Fund. Such costs shall be deducted from the income or earnings on such investment, if any, and to the extent such income or earnings shall not be sufficient to pay such costs, such costs shall be paid by Borrower promptly on demand by Administrative Agent.

(d)

Administrative Agent shall hold each Reserve Account in trust and for the benefit of Lender and Borrower as provided in the Loan Documents, and each Reserve Account shall be under the sole dominion and control of Administrative Agent. Administrative Agent shall have the sole right to make withdrawals from each Reserve Account.

(e)

Lender and Administrative Agent shall not be liable for any loss sustained on the investment of any funds constituting the Reserve Funds provided such Reserve Funds are held in an Eligible Account and invested only in Permitted Investments in accordance with the terms of the Loan Documents. Borrower shall indemnify Lender and Administrative Agent and hold Lender and Administrative Agent harmless from and against any and all Losses arising from or in any way connected with the Reserve Accounts or the performance of the obligations for which the Reserve Accounts were established. Borrower shall assign to Administrative Agent all rights and claims Borrower may have against all persons or entities supplying labor, materials or other services which are to be paid from or secured by the Reserve Accounts; provided, however, that Administrative Agent may not pursue any such right or claim unless an Event of Default is continuing.

Section

7.12 Distributions to Mezzanine Lenders.

(a)

Notwithstanding anything to the contrary contained herein, any amount remaining in the Reserve Funds after the Debt has been paid in full shall be returned (A) if any portion of the Mezzanine Loan Debt is then outstanding, to Mezzanine Lender to be held by the Mezzanine Lender pursuant to the Mezzanine Loan Agreement for the purposes described therein and (B) if no portion of the Mezzanine Loan Debt is then outstanding, to Borrower.

(b)

Notwithstanding anything to the contrary contained herein, any portions of the Reserve Funds that are to be paid, returned or delivered to Mezzanine Lender shall be in the case paid, returned or delivered to the Mezzanine Lender, deemed to be disbursed to the Mezzanine Borrower for payment to the Mezzanine Lender.

157

ARTICLE VIII

DEFAULTS

Section

8.1 Event of Default. Each of the following events shall constitute an event of default hereunder (an “Event of Default”):

(i)

if (A) any Monthly Debt Service Payment Amount is not paid on or before the date when due, (B) the Debt is not paid in full on the Maturity Date, or (C) intentionally omitted or (D) any other portion of the Debt not specified in the foregoing subclause (A), subclause (B) or subclause (C) is not paid on or prior to the date when the same is due with such failure continuing for five (5) Business Days after Administrative Agent delivers written notice thereof to Borrower, (provided, it shall not be an Event of Default if there are sufficient funds in the Cash Management Account or the Excess Cash Flow Reserve Account to pay any such amounts prior to the date upon which such payment becomes delinquent and Administrative Agent is required to use such amounts for the payment of such amount hereunder and Administrative Agent fails to make such payment in accordance with the Loan Documents);

(ii)

if any of the (A) real property Taxes are not paid when the same become delinquent, subject to Borrower’s rights to contest same as provided herein (provided, it shall not be an Event of Default if there are sufficient funds in the Tax and Insurance Reserve Account to pay such Taxes prior to the date upon which such payment becomes delinquent and Administrative Agent is required to use such amounts for the payment of such Taxes hereunder and Administrative Agent fails to make such payment in accordance with the Loan Documents) or (B) material Other Charges are not paid on or prior to the date when the same become delinquent with such failure continuing for five (5) Business Days after Administrative Agent delivers written notice thereof to Borrower;

(iii)

if the Policies are not kept in full force and effect to the extent required by, and subject to, Section 6.1 hereof; provided, it shall not be an Event of Default if there are sufficient funds in the Tax and Insurance Reserve Account or the Excess Cash Flow Reserve Account to pay for such Policies and Administrative Agent is required to use such amounts for the payment of such Policies hereunder and Administrative Agent fails to make such payment in accordance with the Loan Documents;

(iv)

if Xxxxxxxx shall fail to deliver to Administrative Agent certificates of insurance evidencing the Policies and such other documentation as reasonably requested by Administrative Agent in respect of the Policies within the applicable time periods set forth in Section 6.1(b). hereof and such failure is not cured within ten (10) Business Days of receipt of notice from Administrative Agent to Borrower; provided, it shall not be an Event of Default if Borrower is unable to deliver such certificates of insurance and/or other documentation as a result of (1) the Policies no longer being in effect, (2) there are or were sufficient funds in the Tax and Insurance Reserve Account or the Excess Cash Flow Reserve Account to pay for such Policies and (3) Administrative Agent is required to use such amounts for the payment of such Policies hereunder and Administrative Agent fails to make such payment in accordance with the Loan Documents;

158

(v)

if any Transfer is consummated in violation of the provisions of Section 5.2.10 hereof; provided, however, that if such violation arises solely from a failure to provide any required notice or information (other than KYC Searches) pursuant to the applicable provisions of the Loan Documents with respect to a Transfer that is otherwise permitted in accordance with the terms of this Agreement (including, without limitation, a Permitted Transfer), then, without limiting clause (xiv) below, such violation shall not constitute an Event of Default pursuant to this clause (v);

(vi)

if any representation or warranty made by Borrower herein or by Borrower or Guarantor in any other Loan Document, or in any certificate or other instrument or agreement made by Borrower or Guarantor in favor of Administrative Agent and/or Lender in connection with the Loan shall have been false or misleading in any material adverse respect as of the date the representation or warranty was made, provided (x) that if such untrue representation or warranty is susceptible of being cured or corrected, Borrower or Guarantor, as applicable, shall have the right to cure such representation or warranty within thirty (30) days of receipt of notice from Administrative Agent to Borrower and (y) with respect to any representation or warranty made by Guarantor which shall have been false or misleading in any material adverse respect as of the date the representation or warranty was made (a “Guarantor Misrepresentation”), it shall not be an Event of Default under this Section 8.1(a)(vi) if any other Guarantor and/or one or more Replacement Sponsor Guarantors, Replacement Affiliate Guarantors and/or Replacement Guarantors shall have assumed or otherwise agreed to become liable for all of the liabilities and obligations of the Guarantor who made such Guarantor Misrepresentation under the Loan Documents executed by such Guarantor, in each instance, in accordance with the terms hereunder and the terms of the Guaranty and such other Guarantor, Replacement Sponsor Guarantor, Replacement Affiliate Guarantor or Replacement Guarantor is able to make the representation or warranty that was the subject of the Guarantor Misrepresentation;

(vii)

if Borrower or any SPE Constituent Entity shall make an assignment for the benefit of creditors;

(viii)

if a receiver, liquidator or trustee shall be appointed for Borrower or any SPE Constituent Entity or if Borrower or any SPE Constituent Entity shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to the Bankruptcy Code shall be filed by or against or consented to by Borrower or any SPE Constituent Entity, or if any proceeding for the dissolution or liquidation of Borrower or any SPE Constituent Entity shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by Borrower or any SPE Constituent Entity it shall only be an Event of Default upon the same not being discharged, stayed or dismissed within ninety (90) days;

(ix)

only upon the declaration by Administrative Agent that the same constitutes an Event of Default (which declaration may be made by Administrative Agent in its sole discretion) if (A) any Guarantor shall make an assignment for the benefit of creditors or if, (B) a receiver, liquidator or trustee shall be appointed for any Guarantor or if any Guarantor shall be adjudicated a bankrupt or insolvent, or if (C) any petition for bankruptcy, reorganization or arrangement pursuant to the Bankruptcy Code shall be filed by or against or consented to by any Guarantor, or if (D) any proceeding for the dissolution or liquidation of any Guarantor shall be instituted (a “Guarantor Bankruptcy Event”); provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) days; and provided, further, it shall not be an Event of Default under this Section 8.1(a)(ix) if any other Guarantor and/or any one or more Replacement Sponsor Guarantors, Replacement Affiliate Guarantors and/or Replacement Guarantors shall have assumed or otherwise agreed to become liable for all of the liabilities and obligations of the Guarantor subject to such Guarantor Bankruptcy Event under the Loan Documents executed by such Guarantor, in each instance, in accordance with the terms hereunder, and the terms of the Guaranty;

159

(x)

if Borrower or Guarantor voluntarily assigns in writing its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in violation of the Loan Documents, provided, it shall not be an Event of Default under this Section 8.1(a)(x) if with respect to such an assignment by Guarantor, any other Guarantor and/or any one or more Replacement Sponsor Guarantors, Replacement Affiliate Guarantors and/or Replacement Guarantors shall have assumed or otherwise agreed to become liable for all of the liabilities and obligations of the Guarantor subject to such assignment under the Loan Documents executed by such Guarantor, in each instance, in accordance with the terms hereunder, and the terms of the Guaranty;

(xi)

if Borrower breaches any covenant contained in Section 5.1.28 hereof, provided, however, that any such breach shall not constitute an Event of Default (A) if such breach is inadvertent and non-recurring, (B) if such breach is curable, if Borrower shall promptly cure such breach within thirty (30) days after Borrower obtains knowledge of such breach, and (C) upon the written request of Administrative Agent, if Borrower promptly delivers to Administrative Agent an Additional Insolvency Opinion or a modification of the Insolvency Opinion to the effect that such breach shall not alter the conclusions set forth in the opinions rendered in the Insolvency Opinion, which opinion or modification and the counsel delivering such opinion and modification shall be acceptable to Administrative Agent in its sole discretion;

(xii)

with respect to any term, covenant or provision set forth herein or in any other Loan Document which specifically contains a notice requirement or grace period, if Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period, provided, however, if such provision does not specifically provide that Borrower’s default under such term, covenant or condition beyond such notice requirement and/or grace period constitutes an immediate Event of Default, clause (xvi) of this Section 8.1(a) shall apply;

(xiii)

if any of the factual assumptions related to Borrower contained in the Insolvency Opinion delivered to Administrative Agent in connection with the Loan, or in any Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect, provided, however, that any such breach shall not constitute an Event of Default (A) (i) if such breach is inadvertent and nonrecurring or (ii) if such breach is curable, if Borrower shall promptly cure such breach within thirty (30) days after Borrower obtains knowledge of such breach, and (B) upon the written request of Administrative Agent, if Borrower promptly delivers to Administrative Agent an Additional Insolvency Opinion or a modification of the Insolvency Opinion to the effect that such breach shall not alter the conclusions set forth in the opinions rendered in the Insolvency Opinion, which opinion or modification and the counsel delivering such opinion and modification shall be acceptable to Administrative Agent in its sole discretion;

160

(xiv)

if a material default by Borrower has occurred and continues beyond any applicable notice or cure period under the Management Agreement (or any Replacement Management Agreement) that permits the Manager thereunder to terminate or cancel the Management Agreement (or any Replacement Management Agreement) or the term of the Management Agreement (or any Replacement Management Agreement) expires and Administrative Agent delivers a written notice of Event of Default in connection therewith to Borrower (a “Management Default Election Notice”) (unless, within forty-five (45) days after receipt of such Management Default Election Notice, (I) Borrower and a new Qualified Manager enter into a Replacement Management Agreement in accordance with Section 5.1.22, (II) Xxxxxxxx has elected to release the applicable Individual Property released in accordance with Section 2.6.1(c) hereof and releases the Individual Property in accordance with the provisions thereof or (III) the applicable Manager waives such material default);

(xv)

if a material default by Borrower has occurred and continues beyond any applicable notice or cure period under any REA that permits any other party to such REA to enforce the REA against Borrower in a manner that is reasonably expected to have an Individual Material Adverse Effect with respect to any Individual Property or an Aggregate Material Adverse Effect, and Administrative Agent delivers a written notice of Event of Default in connection therewith to Borrower (a “REA Default Election Notice”) (unless, within forty-five (45) days after receipt of such REA Default Election Notice, (I) Borrower has cured such material default under the REA, (II) Borrower has elected to release the applicable Individual Property released in accordance with Section 2.6.1(c) hereof and releases the Individual Property in accordance with the provisions thereof or (III) the applicable counterparty waives such material default);

(xvi)

if Borrower continues to be in Default under any of the other terms, covenants or conditions of this Agreement or the other Loan Documents not specified in clauses (i) to (xv) above or (xvii) to (xix) below, and such Default shall continue for ten (10) days (or such longer period as expressly provided for in this Agreement or in the Loan Documents) after written notice to Borrower from Administrative Agent, in the case of any such Default which can be cured by the payment of a sum of money, or for thirty (30) days after written notice to Borrower from Administrative Agent in the case of any other Default; provided, however, that if such non‑monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed ninety (90) days; provided, with respect to any such default hereunder or under any of the other Loan Documents which is caused solely by actions or omissions of Guarantor (a “Guarantor Default”), it shall not be an Event of Default under this Section 8.1(a)(xvii) if any other Guarantor and/or any one or more Replacement Sponsor Guarantors, Replacement Affiliate Guarantors and/or Replacement Guarantors shall have assumed or otherwise agreed to become liable for all of the liabilities and obligations of the Guarantor who caused such Guarantor Default hereunder or under the Loan Documents executed by such Guarantor, in each instance, in accordance with the terms hereunder and the terms of the Guaranty;

(xvii)

if Borrower shall fail to obtain and/or maintain the Interest Rate Protection Agreement or Replacement Interest Rate Protection Agreement, as applicable, as required pursuant to Section 2.2.7 hereof;

(xviii)

Borrower fails to cause the Title Company to issue the Required Title Policies on the Title Policy Issuance Date or Borrower fails to cause the Title Company to record the Escrowed Mortgages in the Applicable Public Records on the Escrow Break Date; provided, that, it shall not be an Event of Default hereunder if Xxxxxxxx has elected to release the applicable Individual Property for which the Required Title Policy has not been issued, or the applicable Individual Property for which the related Escrowed Mortgage has not been recorded in the Applicable Public Records, in accordance with Section 2.6.1(c) hereof and releases the Individual Property in accordance with the provisions thereof; and

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(xix)

if the leasehold estate created by any PILOT Lease shall be surrendered or any PILOT Lease shall be terminated or cancelled for any reason or circumstance in violation of this Agreement (except if, in connection with such surrender or termination, Borrower acquires the fee estate from the applicable PILOT Lessor in accordance with the terms of the PILOT Lease), provided, however, that prior to declaring an Event of Default under this clause (xix), Administrative Agent shall permit PILOT Lessee, at any time within sixty (60) days of receipt by PILOT Xxxxxx of a notice from PILOT Lessor of such surrender, termination or cancellation, to (i) cause a Default Release with respect to the applicable PILOT Property and (ii) acquire fee title to the fee estate held by PILOT Lessor in accordance with the terms hereof and the terms of the PILOT Lease (if applicable) hereof.

(b)

During the continuance of an Event of Default (other than an Event of Default described in clauses (vii), (viii), or (x) above), in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Administrative Agent may take such action, without notice or demand, that Administrative Agent deems advisable to protect and enforce its rights against Borrower and in and to all or any Individual Property, including, without limitation, declaring the Debt to be immediately due and payable, and Administrative Agent may enforce or avail itself of any or all rights or remedies provided in the Loan Documents against Borrower and any or all of the Properties, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vii), (viii) or (x) above, the Debt and the Other Obligations shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstanding.

Section

8.2 Remedies. (a) During the continuance of an Event of Default, all or any one or more of the rights, powers, privileges and other remedies available to Administrative Agent and Lender against Borrower under this Agreement or any of the other Loan Documents executed and delivered by, or applicable to, Borrower or at law or in equity may be exercised by Administrative Agent and Lender at any time and from time to time, to the extent permitted by applicable law, whether or not all or any of the Debt shall be declared due and payable, and whether or not Administrative Agent shall have commenced any foreclosure proceeding or other action for the enforcement of its rights and remedies under any of the Loan Documents with respect to all or any part of any Individual Property. Any such actions taken by Administrative Agent and/or Lender shall be cumulative and concurrent and may be pursued independently, singularly, successively, together or otherwise, at such time and in such order as Administrative Agent and/or Lender may determine in its sole discretion, to the fullest extent permitted by law, without impairing or otherwise affecting the other rights and remedies of Lender permitted by law, equity or contract or as set forth herein or in the other Loan Documents. Without limiting the generality of the foregoing, Xxxxxxxx agrees that if an Event of Default is continuing (i) neither Administrative Agent nor Xxxxxx is subject to any “one action” or “election of remedies” law or rule, and (ii) all liens and other rights, remedies or privileges provided to Administrative Agent shall remain in full force and effect until Administrative Agent has exhausted all of its remedies against the Properties and the Mortgages have been foreclosed, sold and/or otherwise realized upon in satisfaction of the Debt or the Debt has been paid in full.

162

(b)

With respect to Borrower and the Properties, nothing contained herein or in any other Loan Document shall be construed as requiring Administrative Agent to resort to any Individual Property for the satisfaction of any of the Debt in any preference or priority to any other Individual Property, and Administrative Agent may seek satisfaction out of all of the Properties or any part thereof, in its absolute discretion in respect of the Debt. In addition, during the continuance of an Event of Default, Administrative Agent shall have the right from time to time to partially foreclose any or all of the Mortgages in any manner and for any amounts secured by the Mortgages then due and payable as determined by Administrative Agent in its sole discretion. During the continuance of any Event of Default pursuant to clause (i) of Section 8.1 or any other monetary Event of Default, Administrative Agent may foreclose any or all of the Mortgages to recover the applicable delinquent payments. If, pursuant to its rights set forth in Section 8.1(b), Administrative Agent elects to accelerate less than the entire Outstanding Loan Amount, during the continuance of an Event of Default, Administrative Agent may foreclose any or all of the Mortgages to recover so much of the principal balance of the Loan as Administrative Agent may accelerate and such other portions of the Debt as Administrative Agent may elect. Notwithstanding any partial foreclosures, the Properties shall remain subject to the Mortgages to secure payment of sums secured by the Mortgages and not previously recovered.

(c)

During the continuance of an Event of Default, Administrative Agent upon approval from each Lender, shall have the right from time to time to sever the Note and the other Loan Documents into one or more separate notes, mortgages and other security documents (the “Severed Loan Documents”) in such denominations as Administrative Agent, upon the approval of each Lender, shall determine in its sole discretion for purposes of evidencing and enforcing its rights and remedies provided hereunder. Borrower shall execute and deliver to Administrative Agent from time to time, promptly after the request of Administrative Agent, a severance agreement and such other documents as Administrative Agent shall request in order to effect the severance described in the preceding sentence, all in form and substance reasonably satisfactory to Administrative Agent. Borrower hereby absolutely and irrevocably appoints Administrative Agent as its true and lawful attorney, coupled with an interest, in its name and stead to, during the continuance of an Event of Default, execute the Severed Loan Documents (Borrower ratifying all that its said attorney shall do by virtue thereof); provided, however, that Administrative Agent shall not make or execute any such Severed Loan Documents under such power until the expiration of three (3) days after written notice has been given to Borrower by Administrative Agent of Administrative Agent’s intent to exercise its rights under the aforesaid power. Borrower shall be obligated to pay any costs or expenses incurred in connection with the preparation, execution, recording or filing of the Severed Loan Documents. The Severed Loan Documents shall not contain any representations, warranties or covenants not contained in the Loan Documents, and any such representations and warranties contained in the Severed Loan Documents will be given by Borrower only as of the Closing Date.

(d)

Any amounts recovered by Administrative Agent for the benefit of Lender in connection with the exercise of its remedies under this Section 8.2 may be applied by Administrative Agent toward the payment of Debt in such order and priority as Administrative Agent shall determine in its sole and absolute discretion.

(e)

Upon the occurrence of an Event of Default, without in any way limiting Administrative Agent’s right to exercise any of its rights, powers or remedies as otherwise provided hereunder or under any of the other Loan Documents, Administrative Agent may instruct the Title Company to record the Escrowed Mortgages in accordance with the terms and provisions of the Escrow Agreement and Borrower shall promptly deliver any and all reasonable and customary documentation and other items required by the Title Company for (i) the effectiveness and enforceability of the Escrowed Mortgages, and/or (ii) to cause the Escrowed Mortgages to be recorded in the Applicable Public Records, Borrower hereby agreeing that it shall cooperate with the Title Company in order to accomplish the same as required pursuant to the terms of the Escrow Agreement.

(f)

As used in this Section 8.2, a “foreclosure” shall include, without limitation, any sale by power of sale.

163

Section

8.3 Remedies Cumulative; Waivers. The rights, powers and remedies of Administrative Agent and Lender under this Agreement shall be cumulative and not exclusive of any other right, power or remedy which Administrative Agent and Lender may have against Borrower pursuant to this Agreement or the other Loan Documents, or existing at law or in equity or otherwise. Administrative Agent’s and Xxxxxx’s rights, powers and remedies may be pursued singularly, concurrently or otherwise, at such time and in such order as Administrative Agent and Lender may determine in their sole discretion. No delay or omission to exercise any remedy, right or power accruing upon an Event of Default shall impair any such remedy, right or power or shall be construed as a waiver thereof, but any such remedy, right or power may be exercised from time to time and as often as may be deemed expedient. A waiver of one Default or Event of Default with respect to Borrower shall not be construed to be a waiver of any subsequent Default or Event of Default by Borrower or to impair any remedy, right or power consequent thereon.

Section

8.4 Simultaneous Foreclosure. Notwithstanding anything herein to the contrary, in no event shall Administrative Agent foreclose (whether judicially, by power of sale or otherwise) on or exercise any other rights or remedies with respect to any one or more of the PILOT Documents in any manner, or have any right or power to do any one or more of the foregoing, without also and simultaneously therewith foreclosing (whether judicially, by power of sale or otherwise) and exercising all other rights and remedies with respect to Borrower’s rights and interests under any PILOT Lease, so that the rights and interests under the PILOT Documents are not separated from the interest of the lessee or tenant under any PILOT Lease in connection with, due to or as a result of any such foreclosure or exercise of remedies by or for the benefit of Administrative Agent.

ARTICLE IX

SPECIAL PROVISIONS

Section

9.1 Syndication.

9.1.1

Sale of Notes and Securitization. (a) Each of Borrower and Lender acknowledge and agree that Lender may, sell or otherwise transfer the Loan as a whole loan or sell or otherwise transfer or syndicate, securitize, or sell participations in, all or any portion of the Loan and the Loan Documents, except that any such sale, transfer, syndication, securitize, or participation (the transactions referred to in the foregoing clause are each herein referred to as a “Syndication”) shall only be to an Eligible Assignee, provided, that, (i) prior to a Permitted Assumption where a Person which is not a Permitted Assumption Party pursuant to clause (y) of the definition thereof assumes the Loan in accordance with Section 5.2.10 hereof, any Syndication of the Loan shall require the prior consent of the Borrower, which consent (A) prior to the eighteen (18) month anniversary of the Closing Date, may be given or withheld in Borrower’s sole and absolute discretion and (B) thereafter, shall not be unreasonably withheld, conditioned or delayed and (ii) from and after a Permitted Assumption where a Person which is a Permitted Assumption Party pursuant to clause (x) of the definition thereof assumes the Loan in accordance with Section 5.2.10 hereof, Lender shall have the right to conduct a Syndication, in whole or in part, without Xxxxxxxx’s prior consent to an Eligible Assignee or such other Person approved by Borrower. For the avoidance of doubt, under no circumstances shall Borrower be responsible for any costs or expenses incurred by any transferee of the Loan in connection with any Syndication, whether such costs are incurred before or after the Closing.

164

(b)

Borrower covenants and agrees that, in connection with a Syndication permitted under Section 9.1.1(a) and upon Administrative Agent’s or Xxxxxx’s request, Borrower shall (at Administrative Agent’s or Xxxxxx’s sole cost and expense, except for Borrower’s legal fees (except as set forth in Section 9.1.4 hereto)) reasonably cooperate with Administrative Agent or Lender to (i) deliver one or more new notes substantially in the form of the Note to replace an original note or modify the original note and other loan documents, as reasonably required, to reflect additional components of the Loan or allocate spread or principal among any new or existing components in Lender’s sole discretion, provided, (1) such new or modified notes shall equal the Outstanding Loan Amount immediately prior to the creation thereof, (2) such loans, participations, components or notes shall at all times have a weighted average spread equal to the Weighted Average Spread (except in connection with a Permitted Adjustment Event), (3) no amortization of principal of the Loan will be required, (4) such new or modified notes shall not change the stated maturity of the Loan(s), (5) such new or modified notes shall not change any other economic or other material terms of the Loan (including the ability of Borrower and/or Mezzanine Borrower to elect to have a voluntary prepayment applied to the Mezzanine Loan (or any component of the Mezzanine Loan) on a reverse sequential basis without a corresponding payment of the Loan in accordance with the terms and conditions hereof), (6) such new or modified notes shall not decrease any of the periods during with Borrower or Guarantor is permitted to perform its obligations under the Loan Documents, and (7) there shall be no modifications to the Loan Documents (including any decrease of rights or increase of obligations of Borrower or Guarantor under the Loan Documents) except to reflect the creation of such new or modified notes and such new or modified notes shall be in substantially the same form of the Note, and (ii) reasonably cooperate with Administrative Agent to modify the Cash Management Agreement to reflect such new notes components; and further provided, that none of the foregoing actions shall have a material adverse effect on Borrower, Guarantor, Sponsor or affect any of the rights or obligations of Borrower, Guarantor or Sponsor under the Loan Documents in any materially adverse respect.

(c)

In connection with the Syndication of all or a portion of the Loan, or any Lender’s underwriting of the Loan, but without limiting any Lender’s ability to consummate any of the foregoing, Lender shall use commercially reasonable efforts to minimize site visits for each Individual Property for the benefit of any Lender, appraisers, rating agencies and any other third parties who request site visits in connection with the performance of due diligence or completion of third party reports in connection with the Loan, including, without limitation, using commercially reasonable efforts to coordinate one combined site visit for each Individual Property for all Lenders. Any site visits shall be subject to reasonable prior notice to Borrower and any applicable requirements or limitations (i) under the Leases applicable to each Individual Property, and (ii) imposed by state, local or other governmental authorities or the current property manager in connection with any government-mandated restrictions.

(d)

Administrative Agent shall promptly provide written notice to Borrower of any assignment, syndication or participation of the Loan or sale of all or any portion of the Loan but the failure to so notify shall not be a default by Administrative Agent or Lender hereunder.

165

9.1.2

Splitting the Loan; Uncross of Properties. (a) Without limitation to Section 9.1.1(b) hereof, Administrative Agent and Xxxxxxxx agree that the Loan may be split and severed into additional loans with the consent of each Lender and, other than during the continuance of an Event of Default, Borrower (any such splitting and severing, a “Loan Splitting” and any such severed and split loan, a “Split Loan”). Upon the written request of Administrative Agent in connection with any Loan Splitting, Borrower shall deliver to Administrative Agent, at Xxxxxx’s expense, (i) the Loan Split Documents, (ii) updates of the opinions of counsel delivered on the Closing Date with respect to due authorization, execution and non-consolidation, (iii) endorsements and/or updates to the Title Insurance Policies, and (iv) such other certificates, instruments and documentation as Administrative Agent may reasonably determine are necessary or appropriate to effect the Loan Splitting (the items described in subclauses (i) through (iv) collectively hereinafter shall be referred to as the “Splitting Documentation”), which Splitting Documentation shall be in form and substance reasonably acceptable to Administrative Agent (subject to Section 9.1.2(b) hereof) and Borrower.

(b)

In furtherance of any Loan Splitting permitted hereunder, Administrative Agent shall have the right to elect to (i) sever or divide the Note and the other Loan Documents in order to allocate the Split Loan to the applicable Individual Properties (the “Affected Properties”) and to evidence the same with a new note having an original principal amount equal to the New Note Amount (the “New Note”) and other necessary loan documents (such loan documents, collectively with the New Note and the Note and other Loan Documents, as severed and divided, the “Loan Split Documents”), (ii) segregate the applicable portion of each of the Reserve Accounts relating to the Affected Properties and (iii) take such additional action as is reasonably necessary to effect the Loan Splitting; provided, that (A) the Loan Split Documents, together with the Loan Documents secured by the remaining Individual Properties, shall not (1) modify (w) the initial weighted average interest rate payable under the Note (except in connection with a Permitted Adjustment Event), (x) the stated maturity of the Note, (y) the aggregate amortization of principal of the Note, or (z) any other material term of the Loan, as any of the foregoing existed prior to the Loan Splitting, (2) decrease the time periods during which Borrower or Guarantor is permitted to perform its obligations under the Loan Documents, or (3) otherwise modify any provisions of the Loan Documents or the Loan Split Documents other than to effectuate such Loan Splitting and as otherwise necessary to accurately reflect the Loan Split Documents, (B) the Loan Split Documents shall be substantially in the form of the applicable Loan Documents and (C) the Loan Split Documents shall not decrease the rights, or increase the obligations, of Borrower or Guarantor under the Loan Documents. The Loan Split Documents may, at Administrative Agent’s option, contain provisions that cross-default and/or cross-collateralize the Split Loan with the Loan and/or one or more other Split Loans. Upon a Loan Splitting, the principal amount of the Loan shall be reduced by an amount equal to the aggregate Allocated Loan Amounts of the Affected Properties (the “New Note Amount”), and the original principal amount of the Split Loan, as evidenced by the New Note, shall be equal to the New Note Amount.

(c)

Upon the written request of Administrative Agent in connection with any Loan Splitting permitted hereunder, Xxxxxxxx shall deliver to Lender evidence that would be reasonably satisfactory to a prudent lender that the Special Purpose Entity nature and bankruptcy remoteness of Borrower following such Loan Splitting have not been adversely affected and are in accordance with the terms and provisions of this Agreement (which evidence may include a “bring-down” of the Insolvency Opinion or delivery of an Additional Insolvency Opinion, if the same would be reasonably required by a prudent lender in such circumstances).

9.1.3

Intentionally Omitted.

9.1.4

Syndication Costs. All reasonable out-of-pocket third-party costs and expenses incurred by Xxxxxxxx and Guarantor in connection with Xxxxxxxx’s and Guarantor’s compliance with requests made under this Section 9.1.4 (including any documentary stamp, intangible or other mortgage taxes) incurred in connection with a Loan Splitting and/or Syndication of the Loan shall be paid by Lenders including any AUP costs incurred before or after the Closing Date; provided, that Borrower and Guarantor shall be responsible for the payment of all of Borrower’s and Guarantor’s respective attorneys’ fees and expenses with respect thereto. Notwithstanding the foregoing, from and after the Closing Date, Lender shall be responsible for attorneys’ fees and expenses incurred by Borrower and Guarantor in connection with a Loan Splitting or bifurcation of the Loan into one or more mezzanine loans or the creation of an A/B or senior/subordinate note structure. For the avoidance of doubt and notwithstanding anything contrary contained in this Agreement or the Loan Documents, neither Administrative Agent nor Xxxxxx shall have the right to bifurcate the Loan into one or more mezzanine loans or a senior/subordinate note structure without Borrower’s consent.

166

9.1.5

Participations. Subject to and without limiting Section 9.1.1(a), any Lender may, at Xxxxxx’s cost and without subjecting Borrower to any additional cost or additional liability (other than de minimis cost), grant to an affiliate of such Lender, or any Eligible Assignee (each a “Participant”) participating interests (each, a “Participation”) in the Debt owing to such Lender. Except as otherwise expressly stated herein, (i) so long as no Priority Payment Cessation Event has occurred, a Participation shall be in an amount at least equal to $50,000,000 (or such lesser amount approved by Borrower in Borrower’s sole discretion), (ii) no Participant shall have any rights or benefits under this Agreement or any other Loan Document and (iii) in the event any such grant of a participating interest is to a Person that is not an Eligible Assignee, such grant shall require the prior written consent of Administrative Agent and, so long as no Event of Default then exists, Borrower (provided that, if such Person is a Competitor, Borrower’s consent shall be required in all events unless a Priority Payment Cessation Event has occurred and such consent may be given or withheld in Borrower’s sole and absolute discretion). In the event of any such grant by a Lender of a participating interest to a Participant, such Xxxxxx shall remain responsible for the performance of its obligations hereunder, and Xxxxxxxx and Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Xxxxxx’s rights and obligations under this Agreement. Any agreement pursuant to which any Lender may grant such a Participation shall provide that (x) such Lender shall retain sole control and decision rights with respect to all matters in respect of which such Lender has a consent and/or approval right under the Loan Documents and (y) such Lender shall retain the sole right and responsibility to enforce the obligations of Borrower hereunder including the right to approve any amendment, modification or waiver of any provision of this Agreement, provided that such Lender may agree with the Participant that it will not, without the consent of the Participant, agree to (A) increase such Lender’s Commitment, (B) extend the date fixed for the payment of principal on the Loan or portions thereof owing to such Lender, or (C) reduce the rate at which interest is payable thereon.

9.1.6

Assignments. In connection with any assignment of all or any portion of a Lender’s interest in the Loan permitted by Section 9.1.1 (the party to which such interest is assigned, an “Assignee”) (i) so long as no Priority Payment Cessation Event has occurred, any partial assignment shall be in an amount at least equal to $50,000,000 (or such lesser amount approved by Borrower in Borrower’s sole discretion) and after giving effect to such partial assignment the assigning Lender retains a Note having an aggregate outstanding principal balance of at least $50,000,000 (or such lesser amount approved by Borrower in Borrower’s sole discretion, provided, that, to the extent the Borrower approves such lesser amount, any assignee Lender shall not have any approval rights as a Lender hereunder (including, without limitation, with respect to any approval of a Permitted Assumption Party), except to the extent such Lender is a Joint Lead Arranger hereunder (which Joint Lead Arrangers, for the avoidance of doubt, shall retain their approval rights hereunder regardless of the amount of the Loan held by a Joint Lead Arranger at any point in time), (ii) any partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under the Loan Documents, (iii) each such assignment shall be effected by means of an Assignment and Assumption Agreement and (iv) Administrative Agent is given not less than ten (10) Business Days prior written notice of such assignment. Upon execution and delivery of such Assignment and Assumption Agreement and payment by such Assignee to such transferor Lender of an amount equal to the purchase price agreed between such transferor Lender and such Assignee, such Assignee shall be deemed to be a Lender party to this Agreement and shall have all the rights and obligations of a Lender with respect to the Loan as set forth in such Assignment and Assumption Agreement, and the transferor Lender shall be released from its obligations hereunder to a corresponding extent, and no further consent or action by any party shall be required. Upon the consummation of any assignment pursuant to Section 9.1.1 and this Section 9.1.6, the transferor Xxxxxx, if requested by a Lender, Administrative Agent and Borrower shall make appropriate arrangements so the new Notes are issued to the Assignee (upon return or evidence of cancellation of the Notes being replaced) and such transferor Lender, as appropriate. In connection with any such assignment, the transferor Lender shall pay to Administrative Agent an administrative fee for processing such assignment in the amount of $5,000.00. Anything in this Section 9.1.6 to the contrary notwithstanding, no Lender may assign or participate any interest in any Loan held by it hereunder to Borrower or any of its respective Affiliates except in accordance with the terms and provisions of Section 10.28 hereof.

167

9.1.7

Intentionally Omitted.

9.1.8

Central Bank Pledges. In addition to the assignments and participations permitted under the foregoing provisions of Sections 9.1.5 and 9.1.6, and without the need to comply with any of the formal or procedural requirements of Section 9.1.6, any Lender may at any time assign or pledge all or any portion of its rights under this Agreement and any other Loan Document (including, without limitation, the advances owing to it) to (i) any Federal Reserve Bank, any Federal Home Loan Bank or the central reserve bank or similar authority of any country to secure any obligation of Lender to such bank or similar authority (a “Central Bank Pledge”) or (ii) the trustee, administrator or receiver (or their respective nominees, collateral agents or collateral trustees) of a mortgage pool securing covered mortgage bonds issued by a German mortgage bank, or any other Person permitted to issue covered mortgage bonds, under German Pfandbrief legislation, as such legislation may be amended and in effect from time to time, or any substitute or successor legislation (a “Pfandbrief Pledge”); provided that in each case, no such assignment or pledge shall release such Lender from its obligations hereunder except as provided in the following sentence. In the event that the interest of Lender that is assigned in connection with a Central Bank Pledge is foreclosed upon and transferred to the pledgee thereof, Lender shall have no further liability hereunder with respect to the interest that was the subject of such transfer and the assignee/pledgee shall become the Lender with respect to such interest. Lender shall not be required to notify Borrower of any Central Bank Pledge or Pfandbrief Pledge.

Section

9.2 Exculpation.

(a)

Subject to the qualifications below, Administrative Agent, on behalf of Lender, shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Mortgages or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Administrative Agent, on behalf of Lender, may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Administrative Agent to enforce and realize upon Xxxxxx’s interest under the Note, this Agreement, the Mortgages and the other Loan Documents, or in the Properties, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Xxxxxxxx’s interest in the Properties, in the Rents and in any other collateral given to Administrative Agent, on behalf of Xxxxxx, pursuant to the Loan Documents, and Administrative Agent and Lender, by accepting the Note, this Agreement, the Mortgages and the other Loan Documents, agrees that it shall not sue for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Mortgages or the other Loan Documents. The provisions of this Section shall not, however, (A) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (B) impair the right of Administrative Agent, on behalf of Xxxxxx, to name Borrower as a party defendant in any action or suit for foreclosure and sale under any of the Mortgages; (C) affect the validity or enforceability of the Guaranty or the Environmental Indemnity or any of the rights and remedies of Administrative Agent and Lender thereunder; (D) impair the right of Administrative Agent, on behalf of Xxxxxx, to obtain the appointment of a receiver; (E) impair the enforcement of the collateral assignment of leases and rents contained in the Mortgage; (F) constitute a prohibition against Administrative Agent, on behalf of Lender, to seek a deficiency judgment against Borrower in order to fully realize the security granted by each of the Mortgages or to commence any other appropriate action or proceeding in order for Administrative Agent to exercise its remedies against all of the Properties; or (G) constitute a waiver of the right of Administrative Agent and Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any Losses to the extent actually incurred by Administrative Agent or Lender and arising out of or in connection with the following:

(i)

fraud or material and willful misrepresentation by Borrower or any SPE Constituent Entity, Guarantor or any of their respective Affiliates that are Controlled by Guarantor (each, a “Recourse Party”) in connection with the Loan;

168

(ii)

willful misconduct of any Recourse Party which results in physical damage or waste to the Property (provided, there shall be no liability for any physical damage or waste to the extent caused by (x) a failure to pay expenses due to insufficient funds having been generated from the Property for Borrower’s business operations or (y) if reserve funds held by Administrative Agent and specifically allocated for such amount or Excess Cash Flow Reserve Funds permitted to be used for such purpose under this Agreement have not been made available to Borrower by Administrative Agent to pay such outstanding amounts and Borrower fails to pay such outstanding amounts);

(iii)

other than in connection with Approved Alterations, including, without limitation, after a Casualty or Condemnation, the intentional and wrongful removal or disposal by or on behalf of any Recourse Party of any portion of any Individual Property in violation of the Loan Documents during the continuance of an Event of Default;

(iv)

the misappropriation or conversion by any Recourse Party of any of the following in violation of the Loan Documents (A) any Insurance Proceeds received by any Recourse Party with respect to the Property paid by reason of any Casualty or proceeds of the PLL Policy in connection with the Property, (B) any Awards or other amounts received by any Recourse Party with respect to the Property from a Governmental Authority in connection with a Condemnation, (C) any Rents received by any Recourse Party with respect to the Property during the continuance of an Event of Default, or (D) any Rents received by any Recourse Party with respect to the Property paid more than one (1) month in advance, provided that, in no event will it be deemed misappropriation by a Recourse Party to the extent any of the foregoing are applied to pay costs and expenses incurred in connection with the ownership, operation or management of the Properties in accordance with the terms of this Agreement or applied to pay other obligations required to be paid pursuant to the Loan Documents, or otherwise delivered to Administrative Agent;

(v)

a material breach by Borrower or any SPE Constituent Entity or material failure by Borrower or any SPE Constituent Entity to comply with the covenants set forth in Section 5.1.28(b) hereof (provided, however that (1) there shall be no liability hereunder (x) for trade payables or other operational debt incurred in the ordinary course of business or as may otherwise be permitted in accordance with this Agreement or for the failure to pay such trade payables or operational debt as a result of insufficient funds having been generated from the Property or (y) if reserve funds held by Administrative Agent and specifically allocated for such amount or Excess Cash Flow Reserve Funds permitted to be used for such purpose under this Agreement have not been made available to Borrower by Administrative Agent to pay such outstanding amounts, and (2) the foregoing shall not require Borrower’s equityholders, Guarantor or Sponsor to make any additional capital contributions to Borrower);

169

(vi)

except as permitted by the Loan Documents, if Borrower voluntarily encumbers any Individual Property by any Lien securing indebtedness for borrowed money (other than (i) a Permitted Encumbrance or (ii) a Lien arising out of indebtedness that was Permitted Debt when incurred but which subsequently became prohibited because of a failure to repay the same as required by this Agreement solely as the result of insufficient funds having been generated by the Property) without Administrative Agent’s prior written consent; or if Borrower, any SPE Constituent Entity, Guarantor or any of their respective Affiliates fail to obtain Administrative Agent’s prior written consent to any voluntary Transfer of title to an Individual Property (or any material portion thereof constituting real property) or any direct or indirect interest in Borrower in any case in which such consent is required to be obtained pursuant to Section 5.2.10 hereof, provided, however, that if such violation or breach arises solely from a failure to provide any required notice or information pursuant to the applicable provisions of the Loan Documents with respect to a Transfer that is otherwise permitted in accordance with the terms of this Agreement (including, without limitation, a Permitted Transfer), there shall be no liability hereunder. For the avoidance of doubt, a Transfer resulting from the exercise of Administrative Agent’s or Lender’s rights under the Loan Documents, Mezzanine Lender’s rights under the Mezzanine Loan Documents, the consummation of any remedial or enforcement action by the Administrative Agent or Lender or the holder of the Mezzanine Loan of the collateral for the Loan or the Mezzanine Loan, including, without limitation, any foreclosure, power of sale, deed-in-lieu or assignment-in-lieu of foreclosure and the exercise of any rights of Lender under the Mortgages or Mezzanine Lender under any mezzanine pledge agreement, including, without limitation, the appointment of a receiver, custodian, trustee or examiner by Xxxxxx or Xxxxxxxxx Xxxxxx, any right to vote any pledged securities or any right to replace officers and directors of any Person (collectively, a “Foreclosure”), shall not be a Transfer in violation of Section 5.2.10 hereof;

(vii)

subject to a cap equal to the PLL Policy Limit, to the extent that Borrower obtains PLL Policies that do not run through the Required PLL Period and Borrower fails to renew, replace or extend such PLL Policy through the Required PLL Period as required under Section 6.1(a)(x), any liability pursuant to Section 4 (other than Section 4(a)(l)) of the Environmental Indemnity) that first arises after the expiration of such PLL Policy and that would have otherwise been covered by the PLL Policy had it been renewed, replaced or extended through the Required PLL Period, except, in each case, to the extent such loss is caused by or results from the gross negligence or willful misconduct of the Administrative Agent or Lender; or

(viii)

any Individual Property being encumbered by any Lien that is not set forth in the Approved Policy therefor until the effective date of the related Required Title Policy issued by the Title Insurance Company for the benefit of the Administrative Agent as the insured, other than any Permitted Interim Encumbrances.

(b)

Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (A) Administrative Agent and Lender shall not be deemed to have waived any right which Administrative Agent and Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Debt secured by the Mortgages or to require that all collateral shall continue to secure all of the Debt owing to Administrative Agent and Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event of: (i) Borrower or any SPE Constituent Entity filing a voluntary petition under the Bankruptcy Code (other than at the request or direction of Lender); (ii) the filing by any Person (other than Administrative Agent) of an involuntary petition against Borrower or any SPE Constituent Entity under the Bankruptcy Code in which any Recourse Party affirmatively colludes in writing with the petitioning Person (other than Administrative Agent) filing such involuntary petition against Borrower or any SPE Constituent Entity; (iii) any Recourse Party filing an answer consenting to or otherwise joining in any involuntary petition filed against Borrower or any SPE Constituent Entity, by any other Person under the Bankruptcy Code (other than Administrative Agent); (iv) any Recourse Party consenting in writing to or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower or any SPE Constituent Entity, any Individual Property (or any portion thereof) other than with the prior written consent of Administrative Agent; provided, that with respect to the foregoing clauses (iii) and (iv), there shall be no liability for (x) failing to file an objection to any such filing or (y) providing a response in any such proceeding if such response is required by applicable law, rule or court order; (v) Borrower failing to have fee simple title to the real property described in the legal description of the Approved Policy for each Individual Property as of the Title Policy Issuance Date for such Individual Property (each, a “Failed Title Property”), provided, that, for purposes of the foregoing, the Borrower’s liability shall not exceed, with respect to any such Failed Title Property, the Allocated Loan Amount therefor, or (vi) in the event that the Escrowed Mortgages are not actually recorded in the appropriate recorder’s office of the county where the related Escrowed Asset is located (the “Applicable Public Records”) as of July 26, 2024, in the event of any filing under the Bankruptcy Code which occurs prior to the date that is ninety-one (91) days after the Escrowed Mortgages are recorded in the Applicable Public Records which results in the lien of an Escrowed Mortgage granted to Administrative Agent being voided as a preference under the Bankruptcy Code, provided, that, for purposes of the foregoing, the Borrower’s liability shall not exceed, with respect to each avoided Escrowed Mortgage lien, the Allocated Loan Amount of the related Individual Property which is the subject of such avoided Escrowed Mortgage.

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Section

9.3 Matters Concerning Manager. If (a) an Event of Default occurs and is continuing or (b) a Bankruptcy Action with respect to Manager has occurred and is continuing (and Borrower has not otherwise replaced the Manager), then, in the case of any of the foregoing, Borrower shall, at the request of Administrative Agent (such request being made no less than thirty (30) days in advance if there is an Event of Default continuing), terminate the Management Agreement and replace the Manager with a Qualified Manager (other than the Existing Manager that is subject to the Bankruptcy Action or any Person that is under common Control with the Existing Manager that is subject to the Bankruptcy Action) pursuant to a Replacement Management Agreement, it being understood and agreed that the base management fee for such Qualified Manager shall not exceed then-prevailing market rates (and in no event shall such base management fee exceed, with respect to each Individual Property, the greater of (x) three and one-half percent (3.5%) of the Gross Income from Operations attributable to such Individual Property to which such Replacement Management Agreement relates, or (y) the Individual Management Fee Cap).

Section

9.4 Administrative Agent Fee. On the Closing Date and thereafter on each anniversary thereof until the Loan is repaid in full (and provided that the Administrative Agent as of the Closing Date or its Affiliate is the Administrative Agent), Borrower shall pay to Administrative Agent an administrative fee equal to $25,000.00 per annum within five (5) Business Days of written demand from Administrative Agent. For the avoidance of doubt, such fee is solely for the account of Administrative Agent.

ARTICLE X

MISCELLANEOUS

Section

10.1 Survival. This Agreement and all covenants, agreements, representations and warranties made herein and in the certificates delivered pursuant hereto shall survive the making by Lender of the Loan and the execution and delivery to Lender of the Note, and shall continue in full force and effect so long as all or any of the Debt is outstanding and unpaid unless a longer period is expressly set forth herein or in the other Loan Documents. Whenever in this Agreement any of the parties hereto is referred to, such reference shall be deemed to include the legal representatives, successors and assigns of such party. All covenants, promises and agreements in this Agreement, by or on behalf of Xxxxxxxx, shall inure to the benefit of the legal representatives, successors and assigns of Administrative Agent and each Lender.

Section

10.2 Lender’s Discretion. Subject to Section 10.30, whenever pursuant to this Agreement, Administrative Agent exercises any right given to it to approve or disapprove, or any arrangement or term is to be satisfactory to Administrative Agent, the decision of Administrative Agent to approve or disapprove or to decide whether arrangements or terms are satisfactory or not satisfactory shall (except as is otherwise specifically herein provided) be in the sole discretion of Administrative Agent and shall be final and conclusive other than to the extent expressly set forth in this Agreement or the Loan Documents. Whenever this Agreement expressly provides that Administrative Agent is required to be reasonable in its determination of whether or not to consent to or approve a certain matter, such provisions shall also be deemed to require that Administrative Agent not unreasonably delay or condition such consent or approval.

171

Section

10.3 Governing Law. (a) THIS AGREEMENT WAS NEGOTIATED IN THE STATE OF NEW YORK, THE LOAN WAS MADE BY LENDER AND ACCEPTED BY BORROWER IN THE STATE OF NEW YORK, AND THE PROCEEDS OF THE LOAN DELIVERED PURSUANT HERETO WERE DISBURSED FROM THE STATE OF NEW YORK, WHICH STATE THE PARTIES AGREE HAS A SUBSTANTIAL RELATIONSHIP TO THE PARTIES AND TO THE UNDERLYING TRANSACTION EMBODIED HEREBY, AND IN ALL RESPECTS, INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS AGREEMENT, THE NOTE AND THE OTHER LOAN DOCUMENTS AND THE OBLIGATIONS ARISING HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE AND ANY APPLICABLE LAW OF THE UNITED STATES OF AMERICA, EXCEPT THAT AT ALL TIMES THE PROVISIONS FOR THE CREATION, PERFECTION, AND ENFORCEMENT OF THE LIENS AND SECURITY INTERESTS CREATED PURSUANT HERETO AND PURSUANT TO THE OTHER LOAN DOCUMENTS SHALL BE GOVERNED BY AND CONSTRUED ACCORDING TO THE LAW OF THE STATE IN WHICH THE APPLICABLE INDIVIDUAL PROPERTY IS LOCATED (OTHER THAN WITH RESPECT TO THE CREATION, PERFECTION, PRIORITY, ENFORCEMENT AND FORECLOSURE OF THE SECURITY INTERESTS IN (I) THE LOCKBOX ACCOUNT, (II) THE CASH MANAGEMENT AGREEMENT, AND (III) THE CAP COLLATERAL (AS DEFINED IN THE INTEREST RATE PROTECTION AGREEMENT), WHICH, IN EACH CASE, SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK), IT BEING UNDERSTOOD THAT, TO THE FULLEST EXTENT PERMITTED BY THE LAW OF SUCH STATE, THE LAW OF THE STATE OF NEW YORK SHALL GOVERN THE CONSTRUCTION, VALIDITY AND ENFORCEABILITY OF ALL LOAN DOCUMENTS AND ALL OF THE OBLIGATIONS ARISING HEREUNDER OR THEREUNDER. TO THE FULLEST EXTENT PERMITTED BY LAW, BORROWER HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY CLAIM TO ASSERT THAT THE LAW OF ANY OTHER JURISDICTION GOVERNS THIS AGREEMENT, THE NOTE AND THE OTHER LOAN DOCUMENTS, AND THIS AGREEMENT, THE NOTE AND THE OTHER LOAN DOCUMENTS SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK PURSUANT TO SECTION 5‑1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.

(b)

ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST ADMINISTRATIVE AGENT, LENDER, OR BORROWER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS MAY AT ADMINISTRATIVE AGENT’S OPTION BE INSTITUTED IN ANY FEDERAL OR STATE COURT IN THE CITY OF NEW YORK, COUNTY OF NEW YORK, PURSUANT TO SECTION 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW AND BORROWER WAIVES ANY OBJECTIONS WHICH IT MAY NOW OR HEREAFTER HAVE BASED ON VENUE AND/OR FORUM NON CONVENIENS OF ANY SUCH SUIT, ACTION OR PROCEEDING, AND BORROWER HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT IN ANY SUIT, ACTION OR PROCEEDING. BORROWER DOES HEREBY DESIGNATE AND APPOINT:

c/o Blackstone Real Estate Advisors, L.P.

000 Xxxx Xxxxxx

New York, New York 10154

AS ITS AUTHORIZED AGENT TO ACCEPT AND ACKNOWLEDGE ON ITS BEHALF SERVICE OF ANY AND ALL PROCESS WHICH MAY BE SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY FEDERAL OR STATE COURT IN NEW YORK, NEW YORK, AND AGREES THAT SERVICE OF PROCESS UPON SAID AGENT AT SAID ADDRESS AND WRITTEN NOTICE OF SAID SERVICE MAILED OR DELIVERED TO BORROWER IN THE MANNER PROVIDED HEREIN SHALL BE DEEMED IN EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON BORROWER IN ANY SUCH SUIT, ACTION OR PROCEEDING IN THE STATE OF NEW YORK. XXXXXXXX (I) SHALL GIVE PROMPT NOTICE TO ADMINISTRATIVE AGENT OF ANY CHANGED ADDRESS OF ITS AUTHORIZED AGENT HEREUNDER, (II) MAY AT ANY TIME AND FROM TIME TO TIME DESIGNATE A SUBSTITUTE AUTHORIZED AGENT WITH AN OFFICE IN NEW YORK, NEW YORK (WHICH SUBSTITUTE AGENT AND OFFICE SHALL BE DESIGNATED AS THE PERSON AND ADDRESS FOR SERVICE OF PROCESS), AND (III) SHALL PROMPTLY DESIGNATE SUCH A SUBSTITUTE IF ITS AUTHORIZED AGENT CEASES TO HAVE AN OFFICE IN NEW YORK, NEW YORK OR IS DISSOLVED WITHOUT LEAVING A SUCCESSOR.

172

Section

10.4 Modification, Waiver in Writing. No modification, amendment, extension, discharge, termination or waiver of any provision of this Agreement, or of the Note, or of any other Loan Document, nor consent to any departure by Borrower therefrom, shall in any event be effective unless the same shall be in a writing signed by the party against whom enforcement is sought, and then such waiver or consent shall be effective only in the specific instance, and for the purpose, for which given. Except as otherwise expressly provided herein, no notice to, or demand on Borrower, shall entitle Borrower to any other or future notice or demand in the same, similar or other circumstances.

Section

10.5 Delay Not a Waiver. Neither any failure nor any delay on the part of Administrative Agent or any Lender in insisting upon strict performance of any term, condition, covenant or agreement, or exercising any right, power, remedy or privilege hereunder, or under the Note or under any other Loan Document, or any other instrument given as security therefor, shall operate as or constitute a waiver thereof, nor shall a single or partial exercise thereof preclude any other future exercise, or the exercise of any other right, power, remedy or privilege. In particular, and not by way of limitation, by accepting payment after the due date of any amount payable under this Agreement, the Note or any other Loan Document, neither Administrative Agent nor Lender shall be deemed to have waived any right either to require prompt payment when due of all other amounts due under this Agreement, the Note or the other Loan Documents, or to declare a default for failure to effect prompt payment of any such other amount.

Section

10.6 Notices.

(a)

All notices, consents, approvals and requests required or permitted hereunder or under any other Loan Document shall be given in writing and shall be effective for all purposes if (a) hand delivered, (b) sent by certified or registered United States mail, postage prepaid, return receipt requested, (c) sent by expedited prepaid delivery service, either commercial or United States Postal Service, with proof of attempted delivery or (d) sent by electronic mail (provided that, (x) in connection with any notice sent pursuant to clauses (a) through (c) above, a copy of such notice shall also be delivered by electronic mail as set forth in clause (d), and (y) if sent by electronic mail such delivery must be accompanied or followed by a delivery method specified in clauses (a) through (c) hereof, addressed as follows (or at such other address and Person as shall be designated from time to time by any party hereto, as the case may be, in a written notice to the other parties hereto in the manner provided for in this Section 10.6)):

If to Administrative Agent:

Xxxxx Fargo Bank, National Association

30 Xxxxxx Yards

000 Xxxx 00^xx Xxxxxx, Xxxxx 00

New York, New York 10001

Attention: Xxxxx Xxx

Email: xxxxx.xxx@xxxxxxxxxx.xxx

with a copy to:

Cadwalader, Xxxxxxxxxx & Xxxx LLP

000 Xxxxx Xxxxx Xxxxxx

Charlotte, North Carolina 28202

Attention: Xxxxx X. Xxxxxxxxxxx

Facsimile No.: 000-000-0000

If to Borrowers:

c/o Blackstone Real Estate Advisors, L.P.

000 Xxxx Xxxxxx

New York, New York 10154

Attention: Capital Markets Group

Email: xxxxxxxxxxxxxx@xxxxxxxxxx.xxx

With a copy to:

c/o Blackstone Real Estate Advisors, L.P.

000 Xxxx Xxxxxx

New York, New York 10154

Attention: General Counsel

Email: xxxxxxxxxxxxxxxxx@xxxxxxxxxx.xxx

With a copy to:

Xxxxxxx Xxxxxxx & Xxxxxxxx, LLP

000 Xxxxxxxxx Xxxxxx

New York, New York 10017

Attention: Xxxxxxx Xxxxxxx

Email: xxxxxxx.xxxxxxx@xxxxxx.xxx

173

A notice shall be deemed to have been given: (i) in the case of hand delivery, when delivered; (ii) in the case of registered or certified mail, when delivered or upon the first attempted delivery on a Business Day; (iii) in the case of expedited prepaid delivery service, when delivered or upon the first attempted delivery on a Business Day; and (iv) in the case of electronic mail, upon satisfaction of the foregoing clauses (i) through (iii), as applicable, with respect to such delivery method which accompanied such email.

(b)

Borrower hereby appoints AIR Mezzo, LLC (the “Representative Xxxxxxxx”) to serve as agent on behalf of all Individual Borrowers to receive any notices required to be delivered to any or all of the Individual Borrowers hereunder or under the other Loan Documents and to be the sole party authorized to deliver notices on behalf of the Individual Borrowers hereunder. Any notice delivered to the Representative Borrower shall be deemed to have been delivered to all Individual Borrowers, and any notice received from the Representative Borrower shall be deemed to have been received from all Individual Borrowers. The Individual Borrowers shall be entitled from time to time to appoint a replacement Representative Borrower by written notice delivered to Administrative Agent and signed by both the new Representative Borrower and the Representative Xxxxxxxx being so replaced.

Section

10.7 Trial by Jury. XXXXXXXX HEREBY AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THE LOAN DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY XXXXXXXX AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. ADMINISTRATIVE AGENT OR LENDER (AS APPLICABLE) IS HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY XXXXXXXX.

Section

10.8 Headings. The Article and/or Section headings and the Table of Contents in this Agreement are included herein for convenience of reference only and shall not constitute a part of this Agreement for any other purpose.

Section

10.9 Severability. Wherever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.

Section

10.10 Preferences. Administrative Agent and Lender shall have the continuing and exclusive right to apply or reverse and reapply any and all payments by Borrower to any portion of the obligations of Borrower hereunder in accordance with the Loan Documents. To the extent Borrower makes a payment or payments to Administrative Agent or any Lender, which payment or proceeds or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid to a trustee, receiver or any other party under any bankruptcy law, state or federal law, common law or equitable cause, then, to the extent of such payment or proceeds received, the obligations hereunder or part thereof intended to be satisfied shall be revived and continue in full force and effect, as if such payment or proceeds had not been received by Administrative Agent or such Lender.

Section

10.11 Waiver of Notice. Borrower shall not be entitled to any notices of any nature whatsoever from Administrative Agent or Lender except with respect to matters for which this Agreement or the other Loan Documents specifically and expressly provide for the giving of notice by Administrative Agent or any Lender to Borrower and except with respect to matters for which Borrower is not, pursuant to applicable Legal Requirements, permitted to waive the giving of notice. Borrower hereby expressly waives the right to receive any notice from Administrative Agent or any Lender with respect to any matter for which this Agreement or the other Loan Documents do not specifically and expressly provide for the giving of notice by Administrative Agent or any Lender to Borrower.

174

Section

10.12 Remedies of Borrower. In the event that a claim or adjudication is made that Administrative Agent, any Lender or their agents have acted unreasonably or unreasonably delayed acting in any case where by law or under this Agreement or the other Loan Documents, Administrative Agent, Lender or such agent, as the case may be, has an obligation to act reasonably or promptly, Borrower agrees that neither Administrative Agent, nor Lender nor their respective agents shall be liable for any monetary damages, and Xxxxxxxx’s sole remedies shall be limited to commencing an action seeking injunctive relief or declaratory judgment. The parties hereto agree that any action or proceeding to determine whether Administrative Agent or any Xxxxxx has acted reasonably shall be determined by an action seeking declaratory judgment.

Section

10.13 Expenses; Indemnity.

(a)

Other than as expressly provided in this Agreement or any other Loan Document, Borrower covenants and agrees to pay or, if Xxxxxxxx fails to pay, to reimburse, Administrative Agent and/or Lender within five (5) Business Days following Xxxxxxxx’s receipt of written notice to Borrower from Administrative Agent for all reasonable out-of-pocket costs and expenses (including reasonable actually incurred attorneys’ fees, disbursements and expenses) actually incurred by Administrative Agent and/or Lender in connection with (i) the preparation, negotiation, execution and delivery of this Agreement and the other Loan Documents and the consummation of the transactions contemplated hereby and thereby and all the costs of furnishing all opinions by counsel for Borrower required under this Agreement or the other Loan Documents with respect to the Properties; (ii) Borrower’s ongoing performance of and compliance with Borrower’s respective agreements and covenants contained in this Agreement and the other Loan Documents on its part to be performed or complied with after the Closing Date, including, without limitation, confirming compliance with environmental and insurance requirements; (iii) Administrative Agent’s and Lender’s ongoing performance and compliance with all agreements and conditions contained in this Agreement and the other Loan Documents on its part to be performed or complied with after the Closing Date; (iv) the negotiation, preparation, execution, delivery and administration of any consents, amendments, waivers or other modifications to this Agreement and the other Loan Documents and any other documents or matters requested by Xxxxxxxx, Administrative Agent or Lender; (v) securing Borrower’s compliance with any requests made pursuant to the provisions of this Agreement; (vi) the filing and recording fees and expenses, the premiums and other costs and expenses associated with the Title Insurance Policy and reasonable fees and expenses of counsel for providing to Administrative Agent all required legal opinions, and other similar expenses incurred in creating and perfecting the Liens in favor of Administrative Agent for the benefit of Lender pursuant to this Agreement and the other Loan Documents; (vii) enforcing or preserving any rights, either in response to third-party claims or in prosecuting or defending any action or proceeding or other litigation, in each case against, under or affecting Borrower, this Agreement, the other Loan Documents, the Properties or any other security given for the Loan; and (viii) enforcing any obligations of or collecting any payments due from Borrower or Guarantor under this Agreement, the other Loan Documents or with respect to the Properties or in connection with any refinancing or restructuring of the credit arrangements provided under this Agreement in the nature of a “work‑out” or of any insolvency or bankruptcy proceedings; provided, however, that Borrower shall not be liable for the payment of any such costs and expenses to the extent the same arise by reason of the gross negligence, illegal acts, fraud or willful misconduct of Administrative Agent, Lender or any Indemnified Party; provided, further, that Borrower shall not be liable for the payment of any such costs and expenses to the extent the same arise by reason of any Administrative Agent or Lender requests with respect to the Loan Agreement. During the continuance of an Event of Default, any cost and expenses due and payable to Administrative Agent may be paid from any amounts in the Lockbox Account or the Cash Management Account, as applicable. Notwithstanding anything to the contrary contained herein or in the Loan Documents, in connection with the closing of the Loan, Borrower shall not be liable on the Closing Date or thereafter for (i) the AUP, (ii) third party underwriting costs of any Lender (other than those incurred by Xxxxx), (iii) costs associated with consultants reviewing third party reports (including, but not limited to, Phase One environmental reports, property condition reports, seismic reports or appraisals) for any Lender, except for those expenses incurred by Xxxxx, and (iv) costs associated with entity searches ordered by or on behalf of any Lender (other than those ordered by or on behalf of Xxxxx).

(b)

Borrower shall indemnify, defend and hold harmless the Indemnified Parties from and against any and all other Losses that may be imposed on, incurred by, or asserted against any Indemnified Party in any manner (whether or not arising from a third-party claim) relating to or arising out of (i) any breach by Borrower of its obligations under, or any material misrepresentation by Borrower contained in, this Agreement or the other Loan Documents (including, without limitation, any material misstatement or omission in any report, certificate, financial statement or other instrument, agreement or document or other materials or information furnished by or on behalf of Borrower pursuant to this Agreement or any other Loan Document), or (ii) the use or intended use of the proceeds of the Loan (collectively, the “Indemnified Liabilities”); provided, however, that Borrower shall not have any obligation to any Indemnified Party hereunder to the extent that such Indemnified Liabilities arise from the gross negligence, illegal acts, fraud or willful misconduct of such Indemnified Party. To the extent that the undertaking to indemnify, defend and hold harmless set forth in the preceding sentence may be unenforceable because it violates any law or public policy, Borrower shall pay the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all Indemnified Liabilities incurred by the Indemnified Parties. Paragraph (b) of this Section shall not apply with respect to Section 2.9 Taxes other than any Section 2.9 Taxes that represent losses, claims, damages, etc. arising from any non-Section 2.9 Tax claim.

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Section

10.14 Schedules Incorporated. The Schedules annexed hereto are hereby incorporated herein as a part of this Agreement with the same effect as if set forth in the body hereof.

Section

10.15 Offsets, Counterclaims and Defenses. Any assignee of Xxxxxx’s interest in and to this Agreement, the Note and the other Loan Documents shall take the same free and clear of all offsets, counterclaims or defenses which are unrelated to such documents which Borrower may otherwise have against any assignor of such documents, and no such unrelated counterclaim or defense shall be interposed or asserted by Borrower in any action or proceeding brought by any such assignee upon such documents and any such right to interpose or assert any such unrelated offset, counterclaim or defense in any such action or proceeding is hereby expressly waived by Borrower.

Section

10.16 No Joint Venture or Partnership; No Third Party Beneficiaries.

(a)

Xxxxxxxx, Administrative Agent and Xxxxxx intend that the relationships created hereunder and under the other Loan Documents be solely that of borrower and lender. Nothing herein or therein is intended to create a joint venture, partnership, tenancy‑in‑common, or joint tenancy relationship between Borrower, Administrative Agent and Lender nor to grant Administrative Agent or any Lender any interest in the Properties other than that of mortgagee, beneficiary or lender.

(b)

This Agreement and the other Loan Documents are solely for the benefit of Administrative Agent, Xxxxxx and Borrower and nothing contained in this Agreement or the other Loan Documents shall be deemed to confer upon anyone other than Administrative Agent, Xxxxxx and Borrower any right to insist upon or to enforce the performance or observance of any of the obligations contained herein or therein. All conditions to the obligations of Lender to make the Loan hereunder are imposed solely and exclusively for the benefit of Lender and no other Person shall have standing to require satisfaction of such conditions (other than Administrative Agent) in accordance with their terms or be entitled to assume that Xxxxxx will refuse to make the Loan in the absence of strict compliance with any or all thereof and no other Person shall under any circumstances be deemed to be a beneficiary of such conditions, any or all of which may be freely waived in whole or in part by Lender if, in Xxxxxx’s sole discretion, Xxxxxx deems it advisable or desirable to do so.

Section 10.17 Publicity. All news releases, publicity or advertising by Borrower or its Affiliates through any media intended to reach the general public which refers to the Loan Documents or the financing evidenced by the Loan Documents, to Lender, to Administrative Agent, or to any of its Affiliates shall be subject to the prior written approval of Lender in its sole discretion (but subject to the Deemed Approval Requirements); provided, this Section 10.17 shall not restrict Borrower or its Affiliates from disclosing any information relating to the foregoing in connection with any investor communication, statutory reporting requirements or other Legal Requirements applicable to Borrower or its Affiliates.

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10.18 Cross-Collateralization; Waiver of Marshalling of Assets. (a) Borrower acknowledges that Xxxxxx has made the Loan to Borrower upon the security of its collective interest in the Properties and in reliance upon the aggregate of the Properties taken together being of greater value as collateral security than the sum of each Individual Property taken separately. Subject to Section 9.1.2, Borrower agrees that the Mortgages are and will be cross-collateralized and cross-defaulted with each other so that (i) upon the occurrence of any Event of Default, an event of default shall be deemed to have occurred under each of the Mortgages regardless of whether the event constituting such Event of Default related to any particular Individual Property; (ii) each Mortgage shall constitute security for the Note as if a single blanket lien were placed on all of the Properties as security for the Note; and (iii) such cross-collateralization shall in no event be deemed to constitute a fraudulent conveyance.

(b)

To the fullest extent permitted by law, Borrower, for itself and its successors and assigns, waives all rights to a marshalling of the assets of Xxxxxxxx, Xxxxxxxx’s partners and others with interests in Borrower, and of the Properties, or to a sale in inverse order of alienation in the event of foreclosure of any Mortgage, and agrees not to assert any right under any laws pertaining to the marshalling of assets, the sale in inverse order of alienation, homestead exemption, the administration of estates of decedents, or any other matters whatsoever to defeat, reduce or affect the right of Administrative Agent or Lender under the Loan Documents to a sale of the Properties for the collection of the Debt without any prior or different resort for collection or of the right of Administrative Agent, on behalf of Xxxxxx, to the payment of the Debt out of the net proceeds of the Properties in preference to every other claimant whatsoever. In addition, Xxxxxxxx, for itself and its successors and assigns, waives in the event of foreclosure of any or all of the Mortgages, any equitable right otherwise available to Borrower which would require the separate sale of the Properties or require Administrative Agent to exhaust its remedies against any Individual Property or any combination of the Properties before proceeding against any other Individual Property or combination of Properties; and further in the event of such foreclosure Borrower does hereby expressly consent to and authorize, at the option of Administrative Agent, the foreclosure and sale either separately or together of any combination of the Properties.

Section

10.19 Waiver of Counterclaim. Borrower hereby waives the right to assert a counterclaim, other than a compulsory counterclaim, in any action or proceeding brought against it by Administrative Agent, Lender or their agents.

Section

10.20 Conflict; Construction of Documents; Reliance. In the event of any conflict between the provisions of this Agreement and any of the other Loan Documents, the provisions of this Agreement shall control. The parties hereto acknowledge that they were represented by competent counsel in connection with the negotiation, drafting and execution of the Loan Documents and that such Loan Documents shall not be subject to the principle of construing their meaning against the party which drafted same. Borrower acknowledges that, with respect to the Loan, Borrower shall rely solely on its own judgment and advisors in entering into the Loan without relying in any manner on any statements, representations or recommendations of Administrative Agent or Lender or any parent, subsidiary or Affiliate of Administrative Agent or Lender. Neither Administrative Agent nor Lender shall be subject to any limitation whatsoever in the exercise of any rights or remedies available to it under any of the Loan Documents or any other agreements or instruments which govern the Loan by virtue of the ownership by it or any parent, subsidiary or Affiliate of Administrative Agent or Lender of any equity interest any of them may acquire in Borrower, and Borrower hereby irrevocably waives the right to raise any defense or take any action on the basis of the foregoing with respect to Administrative Agent’s or Xxxxxx’s exercise of any such rights or remedies. Xxxxxxxx acknowledges that Administrative Agent and Xxxxxxx engage in the business of real estate financings and other real estate transactions and investments which may be viewed as adverse to or competitive with the business of Borrower or its Affiliates.

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Section

10.21 Brokers and Financial Advisors. Borrower hereby represents that it has dealt with no financial advisors, brokers, underwriters, placement agents, agents or finders in connection with the transactions contemplated by this Agreement. Xxxxxxxx hereby agrees to indemnify, defend and hold Administrative Agent and Xxxxxx harmless from and against any and all Losses in any way relating to or arising from a claim by any Person that such Person acted on behalf of Xxxxxxxx, Administrative Agent or any Lender in connection with the transactions contemplated herein. The provisions of this Section 10.21 shall survive the expiration and termination of this Agreement and the payment of the Debt.

Section

10.22 Prior Agreements; Notice to Borrower. Borrower is hereby notified that this Agreement and the other Loan Documents contain the entire agreement of the parties hereto and thereto in respect of the transactions contemplated hereby and thereby, and all prior agreements among or between such parties, whether oral or written, are superseded by the terms of this Agreement and the other Loan Documents. This Agreement and the other Loan Documents may not be contradicted by evidence of prior, contemporaneous or subsequent oral agreements of the parties hereto or thereto.

Section

10.23 Joint and Several Liability. If Borrower consists of more than one (1) Person the obligations and liabilities of each Person comprising Borrower shall be joint and several. The parties hereto acknowledge that the defined term “Borrower” (as well as the defined term “Collective Group”) has been defined to collectively include each Borrower (and in the case of the Collective Group, defined to collectively include each Borrower and each SPE Constituent Entity). It is the intent of the parties hereto in determining whether there has occurred an event which (i) constitutes a Default or Event of Default or (ii) creates recourse obligations under Section 9.2 hereof, that any such event with respect to any Borrower (or, where applicable, with respect to any single member of the Collective Group) shall be deemed to be such a Default, Event of Default or event creating recourse obligations under Section 9.2 hereof, as applicable, with respect to every Borrower and that every Borrower need not have been involved with the event causing the same in order for such event to be deemed such a Default, Event of Default or event creating recourse obligations under Section 9.2 hereof, as applicable, with respect to every Borrower (and likewise, where applicable, that each member of the Collective Group need not have been involved with such event for the same to be deemed such a Default, Event of Default or event creating recourse obligations under Section 9.2 hereof, as applicable).

Section

10.24 Register. Administrative Agent (or in the case of participants, the applicable Lender), as non-fiduciary agent of Xxxxxxxx, shall maintain a record within the meaning of U.S. Treasury Regulation 5f.103-1(c) that identifies each owner (including successors, assignees and participants) of an interest in the Loan, including the name and address of the owner, and each owner’s rights to principal and stated interest (the “Register”) and shall record all transfers of an interest in the Loan, including each assignment and participation, in the Register. Administrative Agent (or in the case of participants, the applicable Lender) as a non-fiduciary agent of Xxxxxxxx, shall approve transfers of interests in the Loan (including assignments and participations) and will update the Register to reflect the transfer. Notwithstanding anything in this Agreement to the contrary, the entries in the Register shall be conclusive absent manifest error, and the Borrower, the Lenders and the Administrative Agent may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender (or participant) hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. No transfer is effective until the transferee (or participant) is reflected as such on the Register pursuant to this Section 10.24. The parties intend for the Loan to be in registered form for tax purposes and to the extent of any conflict with this Section 10.24, this Section 10.24 shall be construed in accordance with that intent.

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Section

10.25 Certain Additional Rights of Lender (VCOC). Notwithstanding anything to the contrary contained in this Agreement, to the extent Lender or any Person who Controls Lender is a “venture capital operating company” within the meaning of 29 C.F.R. Section 2510.3-101, Lender shall have:

(a)

upon not less than fifteen (15) Business Days’ prior written notice to Xxxxxxxx, the right to request and to hold a meeting at mutually agreeable times, and not more than four (4) times during any calendar year to consult with an officer of Borrower that is familiar with the financial condition of each Borrower and the operation of the Individual Properties and is otherwise reasonably acceptable to Lender regarding such significant business activities and business and financial developments of Borrower as are specified by Xxxxxx in writing in the request for such meeting; provided, however, that such consultations shall not include discussions of environmental compliance programs or disposal of hazardous substances and provided further that neither the Borrower nor its designated representative shall be under any obligation to follow or implement any advice or recommendations of the Lender. The rights of the Lender provided in this Agreement are expressly limited to consultation, and shall not include any other rights or obligations, including without limitation, any right or obligation to supervise or conduct any aspect of the Borrower’s business or operations; and

(b)

the right, in accordance with the terms of Section 5.1.11(a) of this Agreement, to examine the books and records of Borrower at any reasonable times upon reasonable notice, provided that any such examination shall be conducted so as not to unreasonably interfere with the business of Borrower or any Tenants or other occupants of any Individual Property.

The rights described above in this Section 10.25 may be exercised by Xxxxxx on behalf of any Person which Controls Lender. The Lender and each such Person agrees to hold in confidence any confidential information provided to or learned by the Lender or the Person or its designated representative in connection with the rights under this Agreement; provided that nothing herein shall prevent any Lender from disclosing any such information (a) to any loan participant, provided that such participants use such information solely in connection with their ownership of their interest in the Loan, (b) subject to an agreement to comply with the provisions of this Section 10.25, to any prospective participant or transferee of an interest in the Loan, (c) to its employees, directors, agents, attorneys, accountants and other professional advisors or those of any of its Affiliates, (d) upon the request or demand of any Governmental Authority or as may otherwise be required pursuant to any Legal Requirement, (e) if requested or required to do so in connection with any litigation or similar proceeding, (f) that has been publicly disclosed, or (g) in connection with the exercise of any remedy hereunder or under any other Loan Document.

Section

10.26 Discounted Payoff.

(a)

Notwithstanding anything to the contrary contained in this Agreement or any Lender Documents and without any obligation on the part of Borrower, or any other Loan Party or Mezzanine Borrower to make, or any Lender or any Mezzanine Lender to accept, a Discounted Payoff under this Agreement or the applicable Mezzanine Loan Agreement, Mezzanine Borrower and its respective Affiliates shall be permitted to prepay at a discount all or any portion of a Mezzanine Loan (including any participations) (a “Discounted Payoff”); provided that, no Event of Default is continuing (solely under the Loan and not the applicable Mezzanine Loan) and, provided, further, that the Mezzanine Lender (or any individual co-lender or participant) receiving such Discounted Payoff has consented to such prepayment. Notwithstanding anything to the contrary contained in this Agreement or any Lender Documents, any prepayments made by Mezzanine Borrower or its Affiliates in connection with a Discounted Payoff shall be applied solely to reduce such portion of the Mezzanine Loan held by the Mezzanine Lender or participant in the Mezzanine Loan by an amount equal to the Face Amount of such Discounted Payoff. For purposes of calculating Debt Yield, any portion of the Mezzanine Loan deemed outstanding after giving effect to such Discounted Payoff shall be reduced by the Face Amount of the Mezzanine Loan retired in connection with such Discounted Payoff.

179

(b)

Each of Borrower and the other Loan Parties acknowledges and agrees that any Discounted Payoff of a Mezzanine Loan shall in no event be characterized by Borrower or any other Loan Party as a purchase of an interest in such Mezzanine Loan.

(c)

Lender acknowledges that nothing contained in any Lender Documents or any other intercreditor, co-lender or participation arrangements among the Lender and/or the Mezzanine Lender shall restrict Discounted Payoffs of all or any portion of a Mezzanine Loan (or any participation thereof) and any Lender Documents or any other intercreditor, co-lender or participation agreements shall permit Discounted Payoffs of any Mezzanine Loan (in whole or part) without requiring the consent of Lender or Mezzanine Lender (or participants) and in the event of any conflict between such Lender Documents or other intercreditor, co-lender or participation arrangements and this Section 10.26, then this Section 10.26 shall govern and control.

(d)

Following any Discounted Payoff, the then existing Release Amount (as defined in the applicable Mezzanine Loan) for each Individual Property with respect to such Mezzanine Loan shall be reduced by a percentage expressed as a fraction (x) the numerator of which is the Face Amount of the Mezzanine Loan that is being retired and (y) the denominator of which is the Face Amount of such Mezzanine Loan as of the date immediately prior to such Discounted Payoff.

Section

10.27 Use of Borrower Provided Information. Lender agrees to (i) use all Provided Information solely for purposes of its ownership of its interest in the Loan and shall not use such information obtained in its capacity as lender in a manner to compete with Borrower in the business of the ownership and operation of properties similar to the Properties and (ii) keep confidential all Provided Information that is designated by Borrower or Borrower’s Affiliates as confidential; provided that nothing herein shall prevent any Lender from disclosing any such information (a) to any loan participant, provided that such participants use such information solely in connection with their ownership of their interest in the Loan, (b) subject to an agreement to comply with the provisions of this Section 10.27, to any prospective participant or transferee of an interest in the Loan, (c) to its employees, directors, agents, attorneys, accountants and other professional advisors or those of any of its Affiliates, (d) upon the request or demand of any Governmental Authority or as may otherwise be required pursuant to any Legal Requirement, (e) if requested or required to do so in connection with any litigation or similar proceeding, (f) that has been publicly disclosed, (g) in connection with the exercise of any remedy hereunder or under any other Loan Document or (h) to the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers with respect to the Loan (but solely to the extent such information is required).

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Section

10.28 Borrower Affiliate Lender. Each of Administrative Agent and Xxxxxx agrees that the Lender Documents to which it is a party shall not (a) prohibit or restrict Affiliates of Borrower from purchasing or otherwise acquiring and owning any direct or indirect interest in the Loan and/or any Mezzanine Loan (in such capacity, an “Affiliate Lender”), or (b) create any additional conditions to any such acquisition or ownership, provided, however, that the Lender Documents may include restrictions on the exercise of the rights and remedies by such Affiliate Lender (but not the exercise of rights and remedies by any Lender that is not an Affiliate Lender) including, without limitation, (i) restrictions on any such Affiliate Lender having the right to, or exercising, directly or indirectly, any control, decision-making power, voting rights, notice and cure rights, or other rights that would otherwise benefit a holder by virtue of its ownership or control of any interest with respect to the Loan and/or any Mezzanine Loan, (ii) restrictions on any such Affiliate Lender’s approval and consent rights under any intercreditor agreement, (iii) restrictions on the making of protective advances, (iv) restrictions on such Affiliate Lender from making or bringing any claim, in its capacity as a holder of any direct or indirect interest in the Loan and/or any Mezzanine Loan, against Lender, any Mezzanine Lender or any agent of Lender and/or any Mezzanine Lender with respect to the duties and obligations of such Person in servicing the Loan and/or any Mezzanine Loan to a specified standard under the Lender Documents and (v) accessing any electronic platform for distribution of material information, provided that such Affiliate Lender shall be entitled to receive notices of fundings and prepayments and other administrative notices in respect of its interest in the Loan; provided further, (x) if an Affiliate Lender acquires an interest in the Loan and/or any Mezzanine Loan, such Affiliate Lender shall retain approval or consent rights under the Lender Documents or the Loan or any Mezzanine Loan, respectively, with respect to any action which would disproportionally and adversely affect the interests in the Loan and/or any Mezzanine Loan, as applicable, held by Affiliate Lenders in an economic manner which is (A) different than the effect of any such action on holders of interests in the Loan or any Mezzanine Loan, as applicable, of the same class or priority (if such holder is not an Affiliate Lender), or (B) more adverse than if such interests were held by a Person who/that is not an Affiliate Lender, and (y) notwithstanding anything to the contrary contained herein, the Lender Documents will restrict such Affiliate Lenders from (1) except as provided in clause (x) above, exercising (whether directly, or indirectly through co-lender decision rights, voting rights or otherwise through co-lenders) any consent, approval, consultation, purchase or notice and cure rights under the Loan Documents, Mezzanine Loan Documents or any intercreditor agreement, (2) voting on or participating in any enforcement action commenced or consummated by the unaffiliated holders of the Loan or the Mezzanine Loan, as applicable, (3) accessing any electronic platform for distribution of materials or information related to or in contemplation of workouts, enforcement actions or any decisions to be made during the existence of an Event of Default, and/or (4) making or bringing (or participating in, other than as a passive participant in or recipient of its pro rata benefits of) any claim or action against the Administrative Agent, in its role as such, any Joint Lead Arranger, in such role, or any Lender, or Mezzanine Lender or receiving advice from counsel or other advisors to the Administrative Agent, any Joint Lead Arranger, any other Lenders or Mezzanine Lender or challenging the attorney client privilege of their respective counsel, other than a claim against any Lender, Xxxxxxxxx Xxxxxx, or Administrative Agent that such Person(s) breached a provision of any applicable agreement (e.g., a co-lender agreement or an intercreditor agreement) to the extent such Affiliate Lender was a beneficiary of such provision (the limitations on the rights of an Affiliate Lender pursuant to this clause (x) and (y), the “Restricted Affiliate Lender Rights”). For the avoidance of doubt, (A) the Restricted Affiliate Lender Rights shall not apply to any document governing the rights of holders of securities in a public or private rated securitization of the Loan, (B) the rights and remedies of holders of any portion of the Loan that are unaffiliated with the Borrower shall not be impaired or limited, and (C) the Lender Documents shall not restrict Affiliate Lenders that acquire an interest in the Loan and/or any Mezzanine Loan from (1) collecting any default interest, late payment charges or other fees and expenses in connection with the Loan or any Mezzanine Loan, as applicable, (2) contributing its Pro Rata Share of any cure payment, protective advance or purchase price in the event that the unaffiliated holder(s) of the Loan or any Mezzanine Loan elect to exercise any cure rights, protective advance rights or purchase options, (3) being a passive participant or recipient of its pro rata benefits of any enforcement action commenced or consummated by the unaffiliated holder(s) of the Loan or any Mezzanine Loan, as applicable (for the avoidance of doubt, any Affiliate Lender’s entry into any agreement as a Lender or Mezzanine Lender in order to receive the benefits as a passive participant or recipient, as applicable, shall not be deemed in violation of this clause (3)), (4) being party to any modification of the Loan that is initiated or consented to by the unaffiliated holder(s) of the Loan or any Mezzanine Loan, as applicable, (5) accessing any electronic platform for distribution of materials or information (excluding materials or information related to or in contemplation of workouts, enforcement actions or any decisions to be made during the existence of an Event of Default) or (6) transferring all or any portion of its interest in the Loan (or any interest therein) or any Mezzanine Loan in accordance with the terms of the applicable Lender Documents otherwise applicable to unaffiliated holders of the Loan or Mezzanine Loan, as applicable. For the avoidance of doubt, the rights and remedies of holders of any portion of the Loan and/or any Mezzanine Loan that are unaffiliated with Borrower shall not be impaired or limited. In the event of any conflict between the Lender Documents and this Section 10.28, then the provisions of this Section 10.28 shall govern and control.

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10.29 TRS Transfer. At Borrower’s option, without Administrative Agent’s or Lender’s consent, Borrower may cause an Individual Property to be transferred to a newly formed subsidiary of Sponsor (as applicable, a “New TRS Borrower”) provided that the following conditions are satisfied:

(a)

No Event of Default shall have occurred and be continuing;

(b)

The New TRS Borrower shall have organizational documents in a form reasonably approved by Administrative Agent and Borrower and New TRS Borrower shall otherwise comply with the provisions of Section 4.1.30 and Section 5.2.10 hereof;

(c)

The New TRS Borrower shall execute and deliver such documents reasonably requested by Administrative Agent to evidence that the New TRS Borrower shall be bound to the Loan Documents as a Borrower thereunder;

(d)

The Borrower shall deliver to Administrative Agent an Additional Insolvency Opinion reasonably acceptable to Administrative Agent from Xxxxxxxx’s counsel with respect to the New TRS Borrower, resolutions authorizing such New TRS Borrower to enter into the documents referenced in Section 10.29(c) and an enforceability and execution opinion covering the enforceability of such documents referenced in Section 10.29(c) in the same form and substance as the enforceability opinion delivered to Administrative Agent on the Closing Date;

(e)

The New TRS Borrower shall have the same direct and indirect ownership as the Borrower; and

(f)

Borrower shall reimburse Administrative Agent for any actual costs and expenses it reasonably incurs arising from the transactions contemplated by this Section (including, without limitation, reasonable actually incurred attorneys’ fees and expenses).

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Section

10.30 Approvals and Consents.

(a)

Administrative Agent Decisions. Notwithstanding anything to the contrary contained in this Agreement, but subject to the first sentence of this Section 10.30 and Section 10.30(c) hereof, any consent or approval required or permitted by this Agreement or in any Loan Document to be given by Lender with respect to (i) administrative functions with respect to the Loan, including all determinations relating to the distribution of funds, including, without limitation, the distribution of funds to Borrower from the Reserve Accounts held by Xxxxxx (subject to compliance with the terms and conditions set forth in Article VII hereof); (ii) all insurance matters including settlement of Casualty and Condemnation proceeds and determinations regarding restoration and release of proceeds pursuant to Section 6.4 hereof and any changes to insurance requirements that are not otherwise contemplated under the Loan Documents; (iii) confirmation (or determinations) of economic calculations under the Loan Documents (including the Debt Yield and Debt Service Coverage Ratio); (iv) Additional Administrative Agent Decisions; (v) property level consent and approvals (or deemed approvals) including approvals of easements, zoning matters, subordination non-disturbance agreements and reciprocal easement agreements, condominium matters, property managers and property management agreements (including Replacement Management Subordinations); (vi) budget approvals for any life safety or health matters during the continuance of an Event of Default; (vii) waiver of any non-monetary Event of Default under the Loan, (viii) consent and approvals (or deemed approvals) under Section 5.1.23 or with respect to any PILOT Documents or any Permitted PILOT Arrangement; (ix) review and confirmation of the satisfaction of the conditions to the release of any Release Parcel/Rights or any Immaterial Transfer/Release; (x) review and confirmation of any Replacement Guarantor pursuant to clause (3) of the definition thereof and review and confirmation of a Person’s satisfaction of the requirements set forth herein for a Replacement Guarantor or Qualified Public Company and review and confirmation of the qualifications of a Qualified Transferee that is not a Qualified Public Company (but, subject to Section 5.2.10(d)(i)(F), Section 5.2.10(d)(ii)(C) and Section 5.2.10(e)(x), the “know your customer” requirements of each Lender must be satisfied); (xi) the waiver or granting of any extensions with respect to deadlines set forth in the Loan Documents regarding financial reporting or Required Repairs; (xii) approvals of Extraordinary Expenses or other budget approvals during the continuance of a Cash Sweep Period (provided that so long as no Event of Default has occurred and is continuing, no approvals shall be required for non-budgeted expenditures relating to life safety or health matters); (xiii) Alterations other than Approved Alterations, for which Xxxxxx’s approval is required under Section 5.1.21(a); (xiv) termination of the Management Agreement or replacement of Manager with any Person pursuant to clause (c)(II) of the definition of Qualified Manager; (xv) consent to or waiver of any non-monetary encumbrance of any Individual Property which is not permitted pursuant to the terms and conditions of the Loan Documents; (xvi) leasing matters related to Leases for which Administrative Agent’s or Lender’s approval is required pursuant to Section 5.1.20 hereof and (xvii) approvals of the Approved Annual Budget during the continuance of a Cash Sweep Period, for which Lender’s approval is required under Section 5.1.11(b) hereof (collectively, the “Administrative Agent Decisions”) may be given or may be waived with the written consent of Administrative Agent only and without the consultation, consent or approval of any of the other Lenders or any Mezzanine Lender. At any time that Administrative Agent’s approval is required under this Section 10.30(a), provided no Event of Default is continuing, Administrative Agent’s approval shall be deemed granted if the Deemed Approval Requirements have been satisfied with respect thereto. Any consent or approval required or permitted by this Agreement or the other Loan Documents that is not (A) an Administrative Agent Decision pursuant to this Section 10.30(a) or (B) a Unanimous Decision pursuant to Section 10.30(c) (each such consent or approval, an “Additional Administrative Agent Decision”) may be given or waived with the written consent of the Administrative Agent, only and without consultation, consent or approval of any other Lenders or any Mezzanine Lender.

183

(b)

Intentionally Omitted.

(c)

Unanimous Decisions. Notwithstanding the foregoing, any consent or approval required or permitted by this Agreement or in any Loan Document to be given by Lender to (i) increase the commitment of any Lender; (ii) change the principal of, or Spread that has accrued or that will be charged on the Outstanding Loan Amount; (iii) reduce the amount of any fees payable to Lender in any material respect; (iv) postpone any date fixed for any payment of principal or, or interest on, the Loan (including, the Maturity Date) or for the payment of fees or any other obligations of Borrower or Guarantor; (v) change any Lender’s Pro Rata Share; (vi) amend the sections of the Loan Agreement governing waivers under and amendments to the Loan Documents; (vii) release any Guarantor of its obligations under the Loan Documents in any material respect except as permitted by the Loan Documents; (viii) consent to any Transfer that is prohibited by the Loan Documents without consent and which is not an Administrative Agent Decision or an Additional Administrative Agent Decision (it being agreed that with respect to any Transfer to a Qualified Public Company or Transfer to a Qualified Transferee, any determinations to be made under this Agreement relating to the satisfaction of the “Qualified Public Company” and/or “Qualified Transferee” requirements hereunder shall be governed by Section 10.30(a)); (ix) waive any monetary Event of Default; (x) decide not to accelerate the Loan during the continuance of an Event of Default; (xi) consent to or waiver of any further monetary encumbrance of the Property or pledge of the direct or indirect interest in Borrower, in each case, to the extent not otherwise expressly permitted by the Loan Documents or permitted with the approval of the Administrative Agent only pursuant to Section 10.30(a) hereof and the approval of the Administrative Agent has been obtained; (xii) enter into any agreement providing for the subordination of the Loan to any other interest which would constitute a Lien against the Property (provided, however, that approval of the Administrative Agent only (and not the unanimous approval of the applicable Lenders) shall be required for subordination of the Mortgage to a non-monetary encumbrance pursuant to Section 10.30(a) hereof); (xiii) grant any material concession or waiver under the terms of the Escrow Agreement, including, without limitation, any decision to (A) not record the Escrowed Mortgages encumbering the Escrowed Assets by the Escrow Break Date or (B) waive a Required Title Policy on the Title Policy Issuance Date; or (xiv) amend this Section 10.30 or any other co-lender provision in this Agreement or the other Loan Documents (the “Unanimous Decisions”) may only be given or waived, with the written consent of Administrative Agent at the written direction of all Lenders.

(d)

Replacement Administrative Agent. There shall be an Administrative Agent for the Loan at all times when the Loan is held by more than one Lender, Xxxxx or an affiliate thereof that owns a portion of the Loan shall be the Administrative Agent, provided that at any time (i) neither Xxxxx nor any affiliate thereof owns a portion of the Loan, (ii) during the continuance of an Event of Default with respect to which Administrative Agent has provided written notice thereof to Borrower, (iii) Xxxxx has been replaced as Administrative Agent in accordance with the Lender Documents or (iv) following a default by the Administrative Agent of its obligations under this Agreement or any Lender Documents, the Administrative Agent may resign or be replaced with a single Lender that is either then the sole Lender or is a Lender that (A) has otherwise been designated as the replacement Administrative Agent under the Lender Documents and (B) except in the case of clause (ii) above, is an Eligible Assignee and has been approved by Borrower in its reasonable discretion. Upon the appointment of any successor Administrative Agent hereunder, such successor Administrative Agent shall succeed to and become the Administrative Agent hereunder and any further resignation or replacement of any successor Administrative Agent shall be subject to the terms and conditions of this Section 10.30(d). Notwithstanding the foregoing, Xxxxxxxx acknowledges and agrees that if the Loan is sold by Xxxxx such that the Loan is held by a single Lender, then automatically, and without any further action by Xxxxx or such Lender, all references to Administrative Agent hereunder shall be deemed to refer to such single Lender that holds the Loan.

184

(e)

Lenders. The Lender Documents shall, at all times, provide for the approval standards set forth in this Section 10.30 (the “Approval Standards”) and in the event of any conflict between any Lender Documents or any co-lender arrangement and this Section 10.30, then this Section 10.30 shall govern and control. Except as otherwise provided herein, at all times when the Loan is held by more than one Lender, Borrower shall have no obligation to recognize or deal directly with any Lender. Borrower may direct all notices, financial reporting, and requests for consent or approvals and any other relayed documentation or information to Administrative Agent and may conclusively rely upon the actions of Administrative Agent to bind the Lenders, notwithstanding that any particular action in question may, pursuant to this Agreement or any Lender Document, be subject to the consent or approval of some or all of the Lenders in accordance with this Section 10.30 in accordance with the Approval Standards. The Lenders, including Administrative Agent, and each of their affiliates may accept deposits from, lend money to, act as trustee under indentures of, and generally engage in any kind of business with Borrower (subject to the terms hereof) or any affiliate of Borrower, or any Person who may do business with or own securities in Borrower or any affiliate of Borrower, all as if they were not serving in such capacities hereunder and without any duty to account therefor to each other.

(f)

Non-Consenting Lenders. If any Lender declines to consent to any amendment, waiver or consent that shall have been requested in a writing by Borrower to Administrative Agent, which amendment, waiver or consent is a Unanimous Decision or a Permitted Assumption Party Approval (a “Non-Consenting Lender”) and such amendment, waiver or consent is not approved (i.e., all other Lenders have consented to such amendment, waiver or consent and such consent is insufficient in accordance with this Agreement to approve such amendment, waiver or consent), then Borrower, upon three (3) Business Days’ written notice to Administrative Agent and such Non-Consenting Lender (the “Consent Request Date”) may, at its sole expense and effort require such Non-Consenting Lender to assign and delegate all of its interests, rights and obligations under this Agreement and the Loan Documents to an Eligible Assignee, or another lender identified by Borrower and reasonably approved by Administrative Agent that shall assume such obligations and such Non-Consenting Lender shall promptly execute and deliver an assignment agreement evidencing the same; provided that (i) as of such Consent Request Date, no Event of Default shall have occurred and be continuing other than an Event of Default which results solely from the subject matter of the amendment, waiver or consent that such Non-Consenting Lender disapproved, (ii) such Non-Consenting Lender shall have received from the assignee Lender or Borrower payment of an amount equal to the portion of the Outstanding Loan Amount owed to such Non-Consenting Lender as of the date such Non-Consenting Lender is replaced, together with accrued and unpaid interest thereon, and any other amounts due and payable to the Non-Consenting Lender hereunder and under the other Loan Documents in respect of its interest in the Loan had the Loan been repaid in full at such time, including Breakage Costs, (iii) such assignment does not conflict with applicable law and (iv) such assignee Lender consents to the proposed amendment, waiver or consent on account of which Borrower shall have exercised its rights pursuant to this paragraph. A Non-Consenting Lender shall not be required to make any such assignment and delegation if prior thereto, such Non-Consenting Lender consents to the applicable amendment, waiver or consent. Each Non-Consenting Lender required to make such assignment shall promptly execute and deliver an assignment and acceptance with the applicable Replacement Lender. Such Replacement Lender shall thereafter be a “Lender” for all purposes hereunder.

(g)

Each Lender hereby designates and appoints the Administrative Agent, as its respective agent with respect to each Lockbox Account, as applicable, and each Lender hereby authorizes the Administrative Agent to take any actions on its behalf under the provisions of the Lockbox Agreements. Each Lender hereby authorizes the Administrative Agent to execute, deliver and perform the Lockbox Agreements on its behalf, and the Administrative Agent acknowledges and agrees to take any such action on behalf of the Lender under such the Lockbox Agreements.

(h)

Controlling Note. Lender acknowledges that nothing contained in any Lender Document or any other intercreditor or co-lender arrangement among Lender and/or Mezzanine Lender shall provide for more than one controlling Note at any one time.

185

Section

10.31 Acknowledgement and Consent to Bail-In of Affected Financial Institutions. Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Affected Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the Write-Down and Conversion Powers of the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:

(i)

the application of any Write-Down and Conversion Powers by the applicable Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an Affected Financial Institution; and

(ii)

the effects of any Bail-In Action on any such liability, including, if applicable:

(A)

a reduction in full or in part or cancellation of any such liability;

(B)

a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or

(C)

the variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of the applicable Resolution Authority.

Section

10.32 Pre-Negotiation Agreement. Notwithstanding anything to the contrary contained in the Loan Documents or the Lender Documents, in connection with any request, modification or other negotiation relating to the Loan between Borrower and any Lender (or any agent thereof), Lender acknowledges and agrees that any pre-negotiation agreement or similar agreement to the extent required by such Lender (or agent thereof) or requested by Borrower shall be in the form attached here to as Exhibit I. Notwithstanding anything to the contrary contained in the Lender Documents, to the extent that a Mezzanine Lender (if any) or its affiliates, partners, members, officers, directors, employees, legal counsel, co-lenders, participants, agents (including administrative agents), servicers, special servicers, insurers, existing financing sources, investors, accountants, regulators, or financial or other professional advisors (including, without limitation, appraisers and brokers), rating agencies, trustees, depositors, certificate administrators, controlling class representatives, certificateholders, operating advisors and bondholders (collectively, “Related Parties”) discloses to Lender, or Xxxxxx’s Related Parties, any communications, discussions or negotiations relating to possible compromises, modifications, waivers, consents or deferrals of certain terms of the Loan Documents and/or the Mezzanine Loan Documents, but only to the extent such communications, discussions or negotiations are not otherwise specifically required to be disclosed to Lender pursuant to the requirements of the Loan Documents or Lender Documents (“Confidential Information”), such Confidential Information shall constitute settlement negotiations, and therefore, (i) may not be used for any other purpose (including, without limitation, proof of admissions of liability or for other evidentiary purposes) and (ii) shall be inadmissible for all purposes and shall not be subject to discovery in any judicial or similar proceeding.

186

Section

10.33 Intentionally Omitted.

Section

10.34 Acknowledgment Regarding Any Supported QFCs.

To the extent that the Loan Documents provide support, through a guarantee or otherwise, for any agreement or instrument that is a QFC (such support, “QFC Credit Support” and each such QFC a “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United States):

(a)

In the event a Covered Party that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.

(b)

As used in this Section 10.34, the following terms have the following meanings:

(i)

“BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.

(ii)

“Covered Party” means any of the following:

(A)

a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. Sec. 252.82(b);

(B)

a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. Sec. 47.3(b); or

(C)

a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. Sec. 382.2(b).

(iii)

“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. Sec.Sec. 252.81, 47.2 or 382.1, as applicable.

(iv)

“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).

187

Section

10.35 Funds Transfer Disbursements.

(a)

Generally. Borrower hereby authorizes Administrative Agent to disburse the proceeds of the Loan made by the Lenders or any of their Affiliates pursuant to the Loan Documents as requested by an authorized representative of Borrower to any of the accounts designated in the Disbursement Instruction Agreement in the form attached hereto as Schedule 10.35 or such other form as Administrative Agent may reasonably require from time to time and which is consistent with the other terms and conditions of this Agreement (the “Disbursement Instruction Agreement”). Borrower hereby authorizes Administrative Agent to disburse proceeds of the Loan made by Xxxxxxx and the Reserve Accounts in accordance with the terms of the Loan Documents and the Disbursement Instruction Agreement. Xxxxxxxx agrees to be bound by any transfer request: (i) authorized or transmitted by Borrower or (ii) made in Borrower’s name and accepted by Administrative Agent in good faith and in compliance with these transfer instructions, even if not properly authorized by Borrower. Xxxxxxxx further agrees and acknowledges that Administrative Agent may rely solely on any bank routing number or identifying bank account number or name provided by Borrower to effect a wire of funds transfer even if the information provided by Xxxxxxxx identifies a different bank or account holder than named by Xxxxxxxx. Administrative Agent is not obligated or required in any way to take any actions to detect errors in information provided by Borrower. If Administrative Agent takes any actions in an attempt to detect errors in the transmission or content of transfer or requests or takes any actions in an attempt to detect unauthorized funds transfer requests, Xxxxxxxx agrees that no matter how many times Administrative Agent takes these actions Administrative Agent will not in any situation be liable for failing to take or correctly perform these actions in the future and such actions shall not become any part of the transfer disbursement procedures authorized under this provision, the Loan Documents, or any agreement between Administrative Agent and Borrower. Xxxxxxxx agrees to notify Administrative Agent of any errors in the transfer of any funds or of any unauthorized or improperly authorized transfer requests within fourteen (14) days after Administrative Agent’s confirmation to Borrower of such transfer.

(b)

Funds Transfer. Administrative Agent will, in its sole discretion, determine the funds transfer system and the means by which each transfer will be made. Administrative Agent may delay or refuse to accept a funds transfer request if the transfer would: (i) violate the terms of this authorization; (ii) require use of a bank unacceptable to Administrative Agent or any Lender or prohibited by any Governmental Authority; (iii) cause Administrative Agent or any Lender to violate any Federal Reserve or other regulatory risk control program or guideline; or (iv) otherwise cause Administrative Agent or any Lender to violate any applicable Laws or regulation.

(c)

Limitation of Liability. With respect to any disbursement of the proceeds of the Loan, neither Administrative Agent nor any Lender shall be liable to Borrower or any other parties for (i) errors, acts or failures to act of others, including other entities, banks, communications carriers or clearinghouses, through which Borrower’s transfers may be made or information received or transmitted, and no such entity shall be deemed an agent of Administrative Agent or any Lender, (ii) any loss, liability or delay caused by fires, earthquakes, wars, civil disturbances, power surges or failures, acts of government, labor disputes, failures in communications networks, legal constraints or other events beyond Administrative Agent’s or any Lender’s control, or (iii) any special, consequential, indirect or punitive damages, whether or not (x) any claim for these damages is based on tort or contract or (y) Administrative Agent, any Lender or Borrower knew or should have known the likelihood of these damages in any situation. Neither Administrative Agent nor any Lender makes any representations or warranties other than those expressly made in this Agreement.

188

Section

10.36 Counterparts; Electronic Signatures. This Agreement may be executed in counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same instrument, and the words “executed,” “signed,” “signature,” and words of like import as used above and elsewhere in this Agreement or in any other certificate, agreement or document related to this transaction shall include, in addition to manually executed signatures, images of manually executed signatures transmitted by facsimile or other electronic format (including, without limitation, “pdf”, “tif” or “jpg”) and other electronic signatures (including, without limitation, any electronic sound, symbol, or process, attached to or logically associated with a contract or other record and executed or adopted by a person with the intent to sign the record). The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act and any other applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code.

ARTICLE XI

ADMINISTRATIVE AGENT AND CO-LENDER PROVISIONS

Section

11.1 Appointment and Authorization. Each Lender hereby irrevocably appoints and authorizes Administrative Agent to take such action as contractual representative on such Xxxxxx’s behalf and to exercise such powers under this Agreement and the other Loan Documents as are specifically delegated to Lender by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. Not in limitation of the foregoing, each Lender authorizes and directs Administrative Agent to enter into the Loan Documents for the benefit of Lenders. Nothing herein shall be construed to deem Administrative Agent a trustee or fiduciary for any Lender or to impose on Administrative Agent duties or obligations other than those expressly provided for herein. Without limiting the generality of the foregoing, the use of the terms “Agent”, “Administrative Agent”, “agent” and similar terms in the Loan Documents with reference to Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any Applicable Law. Instead, use of such terms is merely a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. Administrative Agent shall deliver (i) to each Lender, promptly upon receipt thereof by Administrative Agent, copies of (a) each of the financial statements, certificates, notices and other documents delivered to Administrative Agent pursuant to the terms and provisions of Section 5.1.11 that Borrower is not otherwise required to deliver directly to each Lender, (b) any notices of any lapse of any insurance policies required to be maintained hereunder, (c) any notices of any Bankruptcy Actions commenced by or against Borrower, and (d) any certificates, notices, and other documents delivered to Administrative Agent by Xxxxxxxxx Lender; and (ii) to any Lender, upon the request of such Lender, a copy (or, where appropriate, an original) of any document, instrument, agreement, certificate or notice furnished to Administrative Agent by Borrower, any Loan Party or any other Affiliate of Borrower, pursuant to this Agreement or any other Loan Document not already delivered to such Lender pursuant to the terms of this Agreement or any such other Loan Document. As to any matters not expressly provided for by the Loan Documents (including enforcement or collection of any of the Debt), Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Lenders, and such instructions shall be binding upon all Lenders and all holders of any of the Debt, provided that, notwithstanding anything in this Agreement to the contrary, Administrative Agent shall not be required to take any action which exposes Administrative Agent to personal liability or which is contrary to this Agreement or any other Loan Document or applicable Legal Requirements. Not in limitation of the foregoing, Administrative Agent may exercise any right or remedy it or Lenders may have under any Loan Document upon the occurrence of a Default or an Event of Default unless the Lenders have directed Administrative Agent otherwise to the extent the Lenders are permitted to do so herein. Without limiting the foregoing, no Lender shall have any right of action whatsoever against Administrative Agent as a result of Administrative Agent acting or refraining from acting under this Agreement or any of the other Loan Documents in accordance with the instructions of the applicable Lenders. In no event shall any of the foregoing or any other limitations, exceptions, qualifications and exclusions set forth herein or in the Loan Documents relieve Administrative Agent from complying at all times with the provisions of Section 11.11 hereof, and notwithstanding anything to the contrary contained in this Agreement, the other Loan Documents or the Lender Documents, Administrative Agent hereby agrees to perform its duties under this Agreement, the other Loan Documents and the Lender Documents in accordance with the Standard of Care, provided that, nothing herein shall be construed to deem Administrative Agent a trustee or fiduciary for any Lender or to impose on Administrative Agent duties or obligations other than those expressly provided for herein.

189

Section

11.2 Xxxxx Fargo Bank, National Association as Lender. Xxxxx Fargo Bank, National Association, as a Lender, shall have the same rights and powers under this Agreement and any other Loan Document as any other Lender and may exercise the same as though Xxxxx Fargo Bank, National Association were not Administrative Agent; and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated, include Xxxxx Fargo Bank, National Association in each case in its individual capacity. With respect to other transactions or matters unrelated to the Loan, Xxxxx Fargo Bank, National Association and its Affiliates may each accept deposits from, maintain deposits or credit balances for, invest in, lend money to, act as trustee under indentures of, serve as financial advisor to, and generally engage in any kind of business with any Loan Party or any other Affiliate thereof as if it were any other bank and without any duty to account therefore to the other Lenders. Further, Administrative Agent and any Affiliate may accept fees and other consideration from Borrower or any of their Affiliates for services in connection with this Agreement or otherwise pursuant to the terms and provisions of the Loan Documents or otherwise with notice of the same to the Lenders. Lenders acknowledge that, pursuant to such activities, with respect to other transactions or matters unrelated to the Loan, Xxxxx Fargo Bank, National Association and its Affiliates may receive information regarding any Loan Party and other Affiliates (including information that may be subject to confidentiality obligations in favor of such Person) and acknowledge that Administrative Agent shall be under no obligation to provide such information to them.

Section

11.3 Collateral Matters; Protective Advances.

(a)

Each Lender hereby authorizes Administrative Agent, without the necessity of any notice to or further consent from any Lender, from time to time prior to an Event of Default, to take any action with respect to any Collateral or Loan Documents which may be necessary to perfect and maintain perfected the Liens upon the Collateral granted pursuant to any of the Loan Documents.

(b)

Lenders hereby authorize Administrative Agent, at its option and in its discretion, to release any Lien granted to or held by Administrative Agent upon any Collateral (i) upon the indefeasible payment and satisfaction in full of all of the Debt; (ii) as expressly permitted by, but only in accordance with, the terms of the applicable Loan Document, including, without limitation, pursuant to the terms and provisions of Section 2.6; or (iii) if approved, authorized or ratified in writing by Lenders in accordance with Section 10.30 hereof. Upon request by Administrative Agent at any time, Xxxxxxx will confirm in writing Administrative Agent’s authority to release particular types or items of Collateral pursuant to this Section 11.3.

(c)

Upon any sale or transfer of Collateral which is expressly permitted pursuant to the terms of this Agreement, and upon at least five (5) Business Days’ prior written request by Xxxxxxxx, Administrative Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary to evidence the release of the Liens granted to Administrative Agent for its benefit and the benefit of Lenders herein or pursuant hereto upon the Collateral that was sold or transferred, provided that (i) Administrative Agent shall not be required to execute any such document on terms which, in Administrative Agent’s opinion, would expose Administrative Agent to liability or create any obligation or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Debt or any Liens upon (or obligations of Borrower or Guarantor in respect of) all interests retained by the Loan Parties, including the proceeds of such sale or transfer to the extent Lender is permitted to retain same herein, all of which shall continue to constitute part of the Collateral. In the event of any sale or transfer of Collateral, or any foreclosure with respect to any of the Collateral, Administrative Agent shall be authorized to deduct all of the expenses reasonably and actually incurred by Administrative Agent from the proceeds of any such sale, transfer or foreclosure.

(d)

Administrative Agent shall have no obligation whatsoever to Lenders or to any other person to assure that the Collateral exists or is owned by Borrower or is cared for, protected or insured or that the liens granted to Administrative Agent herein or pursuant hereto have been properly or sufficiently or lawfully created, perfected, protected or enforced or are entitled to any particular priority, or to exercise or to continue exercising at all or in any manner or under any duty of care, disclosure or fidelity any of the rights, authorities and powers granted or available to Administrative Agent in this Section 11.3 or in any of the Loan Documents, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, Administrative Agent may act in any manner it may deem appropriate, in its sole discretion, and that Administrative Agent shall have no duty or liability whatsoever to Lenders except (i) to act in accordance with the Standard of Care and (ii) to the extent resulting from its gross negligence or willful misconduct as determined by a court of competent jurisdiction in a final, non-appealable judgment.

190

(e)

Administrative Agent may make, and shall be reimbursed by Xxxxxxx (in accordance with their Pro Rata Shares) to the extent not reimbursed by Xxxxxxxx for, Protective Advances (to the extent the same represents actual out-of-pocket expenses of Administrative Agent) during any one calendar year with respect to the Property that is Collateral up to the sum of (i) amounts expended to pay real estate taxes, assessments and governmental charges or levies imposed upon the Property; (ii) amounts expended to pay insurance premiums for policies of insurance related to the Property; and (iii) $2,000,000. Protective Advances in excess of said sum during any calendar year for the Property shall require the consent of the Lenders. Xxxxxxxx agrees to pay on demand all Protective Advances. So long as no Event of Default has occurred and is continuing, Administrative Agent agrees to give Xxxxxxxx and each Lender prior written notice of any Protective Advance to be made by Administrative Agent.

Section 11.4 Post Foreclosure Plans. If all or any portion of the Collateral is acquired by Administrative Agent as a result of a foreclosure or the acceptance of a deed or assignment in lieu of foreclosure, or is retained in satisfaction of all or any part of the Debt, the title to any such Collateral, or any portion thereof, shall be held in the name of Administrative Agent or a nominee or subsidiary of Administrative Agent, as administrative agent, for the ratable benefit of all Lenders. Administrative Agent shall prepare a recommended course of action for such Collateral (a “Post-Foreclosure Plan”), which shall be subject to the approval of the Lenders. In accordance with the approved Post-Foreclosure Plan, Administrative Agent shall manage, operate, repair, administer, complete, construct, restore or otherwise deal with the Collateral acquired, and shall administer all transactions relating thereto, including employing a management agent, leasing agent and other agents, contractors and employees, including agents for the sale of such Collateral, and the collecting of rents and other sums from such Collateral and paying the expenses of such Collateral. Actions taken by Administrative Agent with respect to the Collateral, which are not specifically provided for in the approved Post-Foreclosure Plan or reasonably incidental thereto, shall require the written consent of the Lenders by way of supplement to such Post-Foreclosure Plan. Upon demand therefor from time to time, each Lender will contribute its share (based on its Pro Rata Share) of all reasonable costs and expenses incurred by Administrative Agent pursuant to the approved Post-Foreclosure Plan in connection with the construction, operation, management, maintenance, leasing and sale of such Collateral. In addition, Administrative Agent shall render or cause to be rendered to each Lender, on a monthly basis, an income and expense statement for such Collateral together with accompanying rent rolls for such Collateral, and each Lender shall promptly contribute its share (based on its Pro Rata Share) of any operating loss for such Collateral, and such other expenses and operating reserves as Administrative Agent shall deem reasonably necessary pursuant to and in accordance with the approved Post-Foreclosure Plan. To the extent there is net operating income from such Collateral, Administrative Agent shall, in accordance with the approved Post-Foreclosure Plan, determine the amount and timing of distributions to Lenders. All such distributions shall be made to Lenders in accordance with their respective Pro Rata Shares. Lenders acknowledge and agree that if title to any Collateral is obtained by Administrative Agent or its nominee, such Collateral will not be held as a permanent investment but will be liquidated and the proceeds of such liquidation will be distributed in accordance with the Lender Documents as soon as possible. Administrative Agent shall undertake to sell such Collateral, at such price and upon such terms and conditions as the Lenders reasonably shall determine to be most advantageous to Lenders. Any purchase money mortgage or deed of trust taken in connection with the disposition of such Collateral in accordance with the immediately preceding sentence shall name Administrative Agent, as administrative agent for Xxxxxxx, as the beneficiary or mortgagee. In such case, Administrative Agent and Xxxxxxx shall enter into an agreement with respect to such purchase money mortgage or deed of trust defining the rights of Xxxxxxx in the same Pro Rata Shares as provided hereunder, which agreement shall be in all material respects similar to this Article XI insofar as the same is appropriate or applicable.

Section

11.5 Approvals of Lenders. All communications from Administrative Agent to any Lender requesting such Lender’s determination, consent, approval or disapproval (a) shall be given in the form of a written notice to such Lender, (b) shall be accompanied by a description of the matter or issue as to which such determination, approval, consent or disapproval is requested, or shall advise such Lender where information, if any, regarding such matter or issue may be inspected, or shall otherwise describe the matter or issue to be resolved, (c) shall include, if reasonably requested by such Lender and to the extent not previously provided to such Lender, written materials and a summary of all oral information provided to Administrative Agent by Xxxxxxxx in respect of the matter or issue to be resolved, and (d) shall include Administrative Agent’s recommended course of action or determination in respect thereof. Unless a Lender shall give written notice to Administrative Agent that it specifically objects to the recommendation or determination of Administrative Agent (together with a reasonable written explanation of the reasons behind such objection) within ten (10) Business Days and such Lender does not so object within five (5) Business Days from the date Lender receives a second written request for approval from Administrative Agent (or such lesser or greater periods as may be specifically required under the express terms of the Loan Documents) of receipt of such communication, such Lender shall be deemed to have conclusively approved of or consented to such recommendation or determination. Notwithstanding anything in this Article XI or elsewhere in this Agreement or any other Loan Document to the contrary, including any other provision containing “notwithstanding anything to the contrary” or other similar language, Borrower may rely on any consent, approval, or any other determination made by Administrative Agent, as though such consent, approval, or other determination was made by any Lender or Lenders required to grant such consent or approval or make such determination under the Loan Documents, in each case, without having to obtain any such consent, approval or other determination from any Lender or Lenders.

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11.6 Notice of Events of Default. Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of a Default or Event of Default unless (i) Administrative Agent has actual knowledge of such Default or Event of Default in its role as Lender or (ii) has received notice from a Lender or Borrower referring to this Agreement, describing with reasonable specificity such Default or Event of Default and stating that such notice is a “notice of default”. If any Lender (excluding Lender which is also serving as Administrative Agent) becomes aware of any Default or Event of Default, it shall promptly send to Administrative Agent such a “notice of default”. Further, if Administrative Agent receives such a “notice of default”, Administrative Agent shall give prompt notice thereof to Lenders.

Section

11.7 Administrative Agent’s Reliance. Notwithstanding any other provisions of this Agreement or any other Loan Documents, neither Administrative Agent nor any of its directors, officers, agents, employees or counsel shall be liable to any Lender for any action taken or not taken by it under or in connection with this Agreement or any other Loan Document, except for its or their own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable judgment) in connection with its duties expressly set forth herein or therein. Without limiting the generality of the foregoing, Administrative Agent may consult with legal counsel (including its own counsel or counsel for the Loan Parties or any of their Affiliates), independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts. Neither Administrative Agent nor any of its directors, officers, agents, employees or counsel: (a) makes any warranty or representation to any Lender nor shall be responsible to any Lender for any statement, warranty or representation made or deemed made by the Loan Parties or any other Person in or in connection with this Agreement or any other Loan Document; (b) shall have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement or any other Loan Document or the satisfaction of any conditions precedent under this Agreement or any Loan Document on the part of Borrower or other Persons or inspect the property, books or records of Borrower or any other Person; (c) shall be responsible to any Lender for the due execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document, any other instrument or document furnished pursuant thereto or any Collateral covered thereby or the perfection or priority of any Lien in favor of Administrative Agent on behalf of Lenders in any such Collateral; (d) shall have any liability to the Lenders in respect of any recitals, statements, certifications, representations or warranties contained in any of the Loan Documents or any other document, instrument, agreement, certificate or statement delivered in connection therewith; and (e) shall incur any liability under or in respect of this Agreement or any other Loan Document by acting upon any notice, consent, certificate or other instrument or writing (which may be by telephone, facsimile or electronic mail) believed by it to be genuine and signed, sent or given by the proper party or parties. Administrative Agent may execute any of its duties under the Loan Documents by or through agents, employees or attorneys-in-fact and shall not be responsible to the Lenders for the negligence or misconduct of any agent or attorney-in-fact that it selects in the absence of gross negligence or willful misconduct as determined by a court of competent jurisdiction in a final, non-appealable judgment. For the avoidance of doubt, this Section 11.7 shall not impair the rights of Borrower or Guarantor under this Agreement or the other Loan Documents.

Section

11.8 Indemnification of Administrative Agent. Regardless of whether the transactions contemplated by this Agreement and the other Loan Documents are consummated, each Lender agrees to indemnify Administrative Agent (to the extent not reimbursed by Xxxxxxxx and without limiting the obligation of Borrower to do so) pro rata in accordance with such Xxxxxx’s respective Pro Rata Share, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may at any time be imposed on, incurred by, or asserted against Administrative Agent (in its capacity as Administrative Agent but not as a “Lender”) in any way relating to or arising out of the Loan Documents, any transaction contemplated hereby or thereby or any action taken or omitted by Administrative Agent under the Loan Documents (collectively, “Indemnifiable Amounts”), provided that no Lender shall be liable for any portion of such Indemnifiable Amounts to the extent resulting from Administrative Agent’s gross negligence or willful misconduct as determined by a court of competent jurisdiction in a final, non-appealable judgment, provided, further that no action taken in accordance with the directions of the Lenders shall be deemed to constitute gross negligence or willful misconduct for purposes of this Section 11.8. Without limiting the generality of the foregoing, each Xxxxxx agrees to reimburse Administrative Agent (to the extent not reimbursed by Xxxxxxxx and without limiting the obligation of Borrower to do so) promptly upon demand for its share (based on its Pro Rata Share) of any out of pocket expenses (including the reasonable fees and expenses of the counsel to Administrative Agent) incurred by Administrative Agent in connection with the administration or enforcement (whether through negotiations, legal proceedings, or otherwise) of, or legal advice with respect to the rights or responsibilities of the parties under, the Loan Documents, any suit or action brought by Administrative Agent to enforce the terms of the Loan Documents and/or collect any Debt, any workout, forbearance or modification of the Loan Documents or Debt, any “lender liability” suit or claim brought against Administrative Agent and/or Lenders, and any claim or suit brought against Administrative Agent and/or Lenders arising under any Environmental Laws, provided that no Lender shall be liable for any portion of such costs to the extent resulting from Administrative Agent’s gross negligence or willful misconduct as determined by a court of competent jurisdiction in a final, non-appealable judgment. Such out of pocket expenses (including counsel fees) shall be advanced by Xxxxxxx on the request of Administrative Agent notwithstanding any claim or assertion that Administrative Agent is not entitled to indemnification hereunder upon receipt of an undertaking by Administrative Agent that Administrative Agent will reimburse Lenders if it is actually and finally determined by a court of competent jurisdiction that Administrative Agent is not so entitled to indemnification. The agreements in this Section 11.8 shall survive the payment of the Loan and all other amounts payable hereunder or under the other Loan Documents and the termination of this Agreement. If Borrower shall reimburse Administrative Agent for any Indemnifiable Amount following payment by any Lender to Administrative Agent in respect of such Indemnifiable Amount pursuant to this Section 11.8, Administrative Agent shall share such reimbursement on a ratable basis with each Lender making any such payment.

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11.9 Lender Credit Decision, Etc. Each of Lenders expressly acknowledges and agrees that neither Administrative Agent nor any of its officers, directors, employees, agents, counsel, attorneys in fact or other affiliates has made any representations or warranties to such Lender and that no act by Administrative Agent hereafter taken, including any review of the affairs of the Loan Parties or any of their Affiliates, shall be deemed to constitute any such representation or warranty by Administrative Agent to any Lender. Each of Lenders acknowledges that it has, independently and without reliance upon Administrative Agent, any other Lender or counsel to Administrative Agent, or any of their respective officers, directors, employees, agents or counsel, and based on the financial statements of Borrower, the other Loan Parties and other Affiliates, and inquiries of such Persons, its independent due diligence of the business and affairs of Borrower, the other Loan Parties and other Persons, its review of the Loan Documents, the legal opinions required to be delivered to it hereunder, the advice of its own counsel and such other documents and information as it has deemed appropriate, made its own credit and legal analysis and decision to enter into this Agreement and the transactions contemplated hereby. Each of Lenders also acknowledges that it will, independently and without reliance upon Administrative Agent, any other Lender or counsel to Administrative Agent or any of their respective officers, directors, employees and agents, and based on such review, advice, documents and information as it shall deem appropriate at the time, continue to make its own decisions in taking or not taking action under the Loan Documents. Administrative Agent shall not be required to keep itself informed as to the performance or observance by the Loan Parties of the Loan Documents or any other document referred to or provided for therein or to inspect the properties or books of, or make any other investigation of, the Loan Parties or any of their Affiliates. Except for notices, reports and other documents and information expressly required to be furnished to Lenders by Administrative Agent under this Agreement or any of the other Loan Documents, Administrative Agent shall have no duty or responsibility to provide any Lender with any credit or other information concerning the business, operations, property, financial and other condition or creditworthiness of the Loan Parties or any other Affiliate thereof which may come into possession of Administrative Agent or any of its officers, directors, employees, agents, attorneys in fact or other Affiliates. Each of Lenders acknowledges that Administrative Agent’s legal counsel in connection with the transactions contemplated by this Agreement is only acting as counsel to Administrative Agent and is not acting as counsel to any Lender.

Section

11.10 Successor Administrative Agent. For so long as an Event of Default of which Administrative Agent has given written notice to Xxxxxxxx has not occurred, Xxxxx Fargo Bank, National Association agrees to remain Administrative Agent hereunder for the term of the Loan, unless removed by the Lenders in accordance with the terms hereof. During the continuance of an Event of Default of which Administrative Agent has given written notice to Xxxxxxxx, Administrative Agent may resign at any time as Administrative Agent under the Loan Documents by giving thirty (30) days’ written notice thereof to Xxxxxxx and Xxxxxxxx. Upon any such resignation, the Lenders shall have the right to appoint a successor Administrative Agent which appointment shall, provided no Event of Default then exists, be subject to Borrower’s approval, which approval shall not be unreasonably withheld or delayed (except that Borrower shall, in all events, be deemed to have approved each Lender and any of its affiliates as a successor Administrative Agent). If no successor Administrative Agent shall have been so appointed in accordance with the immediately preceding sentence, and shall have accepted such appointment, within thirty (30) days after the current Administrative Agent’s giving of notice of resignation, then the current Administrative Agent may, on behalf of Xxxxxxx, appoint a successor Administrative Agent, which shall be a Lender, if any Lender shall be willing to serve and otherwise shall be an Eligible Assignee. Upon the acceptance of any appointment as Administrative Agent hereunder by a successor Administrative Agent, such successor Administrative Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the current Administrative Agent, and the current Administrative Agent shall be discharged from its duties and obligations under the Loan Documents. After any Administrative Agent’s resignation hereunder as Administrative Agent, the provisions of this Article XI shall continue to inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent under the Loan Documents. Further, any successor Administrative Agent hereunder shall be subject to the same provisions for resignation and removal as the initial Administrative Agent hereunder. Notwithstanding anything contained herein to the contrary, Administrative Agent may assign its rights and duties under the Loan Documents to any of its Affiliates by giving Xxxxxxxx and each Lender prior written notice. Upon the occurrence of any of the following, the Lenders (excluding the Lender acting as, or Affiliated with, Administrative Agent hereunder from the determination of the applicable Lenders) may, by delivering written notice to Administrative Agent, remove Administrative Agent from its role as administrative agent for the Lenders, without affecting Administrative Agent’s rights or obligations as a Lender, and appoint a successor Administrative Agent: Administrative Agent commits gross negligence or willful misconduct as determined by a court of competent jurisdiction in a final, non-appealable judgment.

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11.11 No Set Offs. Each Lender hereby acknowledges that the exercise by any Lender of offset, set-off, banker's lien or similar rights against any deposit account or other property or asset of Borrower, whether or not located in California, could result under certain laws in significant impairment of the ability of all Lenders to recover any further amounts in respect of the Loan. Therefore, each Lender agrees not to charge or offset any amount owed to it by Borrower against any of the accounts, property or assets of Borrower or any of its affiliates held by such Lender without the prior written approval of Administrative Agent and two-thirds (2/3^rds) of the Lenders (determined by principal amount of the Loan held by such Xxxxxx(s).

Section

11.12 Defaulting Lenders.

(a)

If for any reason any Lender becomes a Defaulting Lender, then, in addition to the rights and remedies that may be available to Administrative Agent or Borrower under this Agreement or applicable law, such Defaulting Lender’s right to participate in the administration of the Loan, this Agreement and the other Loan Documents, including, without limitation, any right to vote in respect of, to consent to or to direct any action or inaction of Administrative Agent or requested by Borrower or to be taken into account in the calculation of the number of Lenders required to approve a matter or unanimous consent of Lenders, including the requirements of a Permitted Assumption Party Approval, as applicable, shall be suspended for such long as such Lender is a Defaulting Lender. If for any reason a Lender fails to make timely payment to Administrative Agent of any amount required to be paid to Administrative Agent hereunder (without giving effect to any notice or cure periods), in addition to other rights and remedies which Administrative Agent or Borrower may have under the immediately preceding provisions or otherwise, Administrative Agent shall be entitled (i) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Default Rate, (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document and (iii) to bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received by Administrative Agent in respect of a Defaulting Lender’s Commitment shall not be paid to such Defaulting Lender and shall be held by Administrative Agent and paid to such Defaulting Lender upon the Defaulting Xxxxxx’s curing of its default. Furthermore, a Defaulting Lender shall indemnify and hold harmless Borrower, Administrative Agent and each of the other Lenders from any claim, loss, or costs incurred by Borrower, Administrative Agent and/or the other Lenders as a result of a Defaulting Lender’s failure to comply with the requirements of this Agreement, including, without limitation, any and all additional losses, damages, costs and expenses (including, without limitation, attorneys’ fees) incurred by Xxxxxxxx, Administrative Agent and any Lender as a result of and/or in connection with (i) any enforcement action brought by Borrower or Administrative Agent against a Defaulting Lender and (ii) any action brought against Borrower or Administrative Agent and/or Lenders. The indemnification provided in this Section 11.12 survive any termination of this Agreement.

(b)

Any Lender who is not a Defaulting Lender shall have the right, but not the obligation, in its sole discretion, to acquire by assignment all of a Defaulting Xxxxxx’s Commitment. Any Lender desiring to exercise such right shall give written notice thereof to Administrative Agent and Borrower no sooner than two (2) Business Days and not later than five (5) Business Days after such Defaulting Lender became a Defaulting Lender. If more than one Lender exercises such right, then each such Lender shall have the right to acquire an amount of such Defaulting Lender’s Commitment in an amount equal to the proportion thereof such Xxxxxx’s Commitment bears to the Commitments of all Lenders exercising such right. If after such fifth (5^th) Business Day, Xxxxxxx have not elected to acquire all of such Defaulting Lender’s Commitment, then Borrower may, by giving written notice thereof to Administrative Agent, such Defaulting Lender and the other Lenders, demand that such Defaulting Lender assign its Commitment to an Eligible Assignee subject to and in accordance with the provisions of Section 9.1.6 above for the purchase price provided for below, whereupon such Defaulting Lender shall no longer be a party hereto or have any right or obligation whatsoever to initiate any such replacement or to assist in finding an Eligible Assignee. Upon any such assignment, the Defaulting Xxxxxx’s interest in such Commitment and its rights hereunder (but not its liability in respect thereof or under the Loan Documents to the extent the same relate to the period prior to the effective date of the purchase) shall terminate on the date of purchase, and the Defaulting Lender shall promptly execute all documents reasonably requested to surrender and transfer such interest to the purchaser or assignee thereof, including an appropriate Assignment and Assumption Agreement and, notwithstanding Section 9.1.6, such Defaulting Lender shall pay to Administrative Agent an assignment fee in the amount of $10,000. The purchase price for the Commitment of a Defaulting Lender shall be equal to the amount of the principal balance of the Loan outstanding and owed by Borrower to the Defaulting Lender together with any other amounts owed to the Defaulting Lender in respect of its Loan as of the date when such Xxxxxx became a Defaulting Lender. Prior to payment of such purchase price to a Defaulting Lender, Administrative Agent shall apply against such purchase price any amounts retained by Administrative Agent pursuant to the last sentence of the immediately preceding clause (a).

194

(c)

Any payment of principal, interest, fees or other amounts received by Administrative Agent for the account of a Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to this Article XI or otherwise) or received by Administrative Agent from a Defaulting Lender shall be applied at such time or times as may be determined by Administrative Agent as follows: (i) first, to the payment of any amounts owing by such Defaulting Lender to Administrative Agent hereunder; (ii) second, to the payment of any amounts owing to the Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; (iii) third, so long as no Default or Event of Default exists, to the payment of any amounts owing to Borrower as a result of any judgment of a court of competent jurisdiction obtained by Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and (iv) fourth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender pursuant to this subsection shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.

(d)

If Borrower and Administrative Agent agree in writing that a Lender is no longer a Defaulting Lender, Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein, that Lender will, to the extent applicable, purchase at par that portion of outstanding advances of the other Lenders or take such other actions as Administrative Agent may determine to be necessary to cause the Commitments to be held on a pro rata basis by the Lenders in accordance with their Pro Rata Shares, whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of Borrower while that Xxxxxx was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Xxxxxx’s having been a Defaulting Lender.

Section

11.13 Titled Agents. Joint Lead Arrangers, Sole Bookrunner and Co-Syndication Agents (herein, a “Titled Agent”) in their capacity as Joint Lead Arrangers, Sole Bookrunner and Co-Syndication Agents, assume no responsibility or obligation hereunder, including for servicing, enforcement or collection of the Loan, nor any duties as an agent hereunder for Lender. The titles given to the Titled Agent are solely honorific and imply no fiduciary responsibility on the part of the Titled Agent to Administrative Agent, any Lender, any other Titled Agent, Borrower or any other Loan Party and the use of such titles does not impose on the Titled Agent any duties or obligations greater than those of any other Lender or entitle the Titled Agent to any rights other than those to which any other Lender is entitled.

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11.14 Allocation of Proceeds. If an Event of Default exists and maturity of any of the Debt and the Other Obligations has been accelerated or the Maturity Date has occurred, all payments received by Administrative Agent under any of the Loan Documents, in respect of any principal of or interest on the Debt and the Other Obligations or any other amounts payable by Borrower hereunder or thereunder, shall be applied in the following order and priority:

(a)

First, to amounts due to Administrative Agent and Lenders in respect of expenses due under Section 10.13 until paid in full, and then fees;

(b)

Second, to amounts due to Administrative Agent and Xxxxxxx in respect of Protective Advances;

(c)

Third, to payments of interest on the Loan to be applied for the ratable benefit of Lenders, in such order as Lenders may determine in their sole discretion;

(d)

Fourth, to payments of principal of the Loan to be applied for the ratable benefit of Lenders in such order as Lenders may determine in their sole discretion;

(e)

Fifth, to amounts due to Administrative Agent and Lenders pursuant to any indemnifications pursuant to Section 10.13 or Section 11.8;

(f)

Sixth, to payments of all other amounts due under any of the Loan Documents, if any, to be applied for the ratable benefit of Lenders; and

(g)

Lastly, any amount remaining after application as provided above, shall be paid to whomever else may be legally entitled thereto.

Section

11.15 Electronic Delivery of Certain Information. If requested by Administrative Agent, documents required to be delivered by Borrower pursuant to the Loan Documents shall be delivered, in addition to the method set forth in Section 10.6 above, by electronic communication and delivery, including the Internet, e-mail or intranet websites to which Administrative Agent and each Lender have access (including a commercial, third-party website such as xxx.Xxxxx.xxx xxxx://xxx.Xxxxx.xxx or xxx.xxxxxxxx.xxx or a website sponsored or hosted by Administrative Agent), provided that no Lender has notified Administrative Agent that it cannot or does not want to receive electronic communications. Administrative Agent may, in its discretion, agree to accept notices and other communications to it hereunder by electronic delivery pursuant to procedures approved by it for all or particular notices or communications. Documents or notices delivered electronically by Xxxxxxxx may be posted by Administrative Agent on a commercial website and Administrative Agent shall notify each Lender of said posting and shall provide a link thereto. It being understood that the posting of said documents shall constitute notice and delivery of such documents to Lenders by Administrative Agent as required hereunder and delivery shall be deemed properly given pursuant to Section 10.6 as of the date of said posting by Administrative Agent. Unless otherwise requested by Administrative Agent, Borrower shall not be required to provide paper copies of any reports or other materials submitted to Administrative Agent pursuant to Section 5.1.11 or in connection with any requests for disbursements from Reserve Funds. Except for the Officer’s Certificate, Administrative Agent shall have no obligation to maintain paper copies of the documents delivered electronically and, in any event, shall have no responsibility to monitor compliance by Borrower with any such request for delivery. Each Lender shall be solely responsible for requesting delivery to it of paper copies and maintaining its paper or electronic documents. Documents required to be delivered by Borrower may be delivered electronically to a website provided for such purpose by Administrative Agent pursuant to the procedures provided to Borrower by Administrative Agent.

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11.16 Possession of Documents. Each Lender shall maintain possession of its own Note. Administrative Agent shall hold all other Loan Documents and related documents in its possession and maintain separate records and accounts with respect to the Loan, reflecting the interests of Lenders in the Loan, and shall permit Lenders (other than any Defaulting Lender) and their representatives access at all reasonable times during normal business hours to inspect such Loan Documents, related documents, records and accounts.

Section 11.17 Standard of Care. Administrative Agent will administer and service the Loan and each Note in accordance with the same care, skill, prudence and diligence with which Administrative Agent would use in the administration of the Loan or REO Property, as applicable, including, without limitation, the obligation of Administrative Agent to perform its services under this Agreement while acting in the best interest of and for the benefit of the Lenders taken as a whole: (a) in accordance with (i) applicable Legal Requirements and (ii) the terms and provisions of the Loan Documents and the Lender Documents; (b) giving due regard to best market practices, in the same manner and with the same care with which Administrative Agent generally administers similar mortgage loans with similar mortgagors, or manages real estate owned properties comparable to the Property, as applicable, held in its own portfolio; and (c) without regard to any relationship that Administrative Agent (or any of its Affiliates) may have with Xxxxxxxx, Guarantor or any other indemnitor or other obligor under the Loan or any Affiliates of any thereof, or with any other party to the Loan Documents, the Lender Documents or their respective Affiliates (the “Standard of Care”).

Section

11.18 Distribution of Payments. Subject to Section 11.12 and Section 11.14 hereof, payments actually received by Administrative Agent for the account of Lenders shall be paid by Administrative Agent to the Lenders promptly after receipt thereof by Administrative Agent, but in any event within two (2) Business Days, provided that Administrative Agent shall pay to Lenders interest thereon, at the lesser of (i) the Federal Funds Rate and (ii) the rate of interest applicable to the Loan, from the Business Day following receipt of such funds by Administrative Agent until such funds are paid in immediately available funds to Lenders. For the avoidance of doubt, Borrower shall have no liability and there shall be no Event of Default resulting from Administrative Agent’s breach of this Section 11.18.

Section

11.19 Erroneous Payments.

(a)

Each Lender (and each participant of any of the foregoing, by its acceptance of a participation) hereby severally agrees that if (i) Administrative Agent notifies (which such notice shall be conclusive absent manifest error) such Lender or any other Secured Party (or any Affiliate of a Lender or a Secured Party) or any other Person that has received funds from Administrative Agent or any of its Affiliates, either for its own account or on behalf of a Lender or other Secured Party (each such recipient, a “Payment Recipient”) that Administrative Agent has determined in its sole discretion that any funds received by such Payment Recipient were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Payment Recipient) or (ii) any Payment Recipient receives any payment from Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment, prepayment or repayment sent by Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, as applicable, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, as applicable, or (z) that such Payment Recipient otherwise becomes aware was transmitted or received in error or by mistake (in whole or in part) then, in each case, an error in payment shall be presumed to have been made (any such amounts specified in clauses (i) or (ii) of this clause (a), whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise; individually and collectively, an “Erroneous Payment”), then, in each case, such Payment Recipient is deemed to have knowledge of such error at the time of its receipt of such Erroneous Payment; provided that nothing in this Section shall require Administrative Agent to provide any of the notices specified in clauses (i) or (ii) above. Each Payment Recipient agrees that it shall not assert any right or claim to any Erroneous Payment, and hereby waives any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by Administrative Agent for the return of any Erroneous Payments, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine.

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(b)

Without limiting the immediately preceding clause (a), each Payment Recipient agrees that, in the case of clause (ii) of clause (a) above, it shall promptly notify Administrative Agent in writing of such occurrence.

(c)

In the case of either clause (i) or (ii) of clause (a) above, such Erroneous Payment shall at all times remain the property of Administrative Agent and shall be segregated by the Payment Recipient and held in trust for the benefit of Administrative Agent, and upon demand from Administrative Agent such Payment Recipient shall (or, shall cause any Person who received any portion of an Erroneous Payment on its behalf to), promptly, but in all events no later than two Business Days thereafter, return to Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds and in the currency so received, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to Administrative Agent at the Overnight Rate.

(d)

In the event that an Erroneous Payment (or portion thereof) is not recovered by Administrative Agent for any reason, after demand therefor by Administrative Agent in accordance with clause (c), from any Lender that is a Payment Recipient or an Affiliate of a Payment Recipient (such unrecovered amount as to such Lender, an “Erroneous Payment Return Deficiency”), then at the sole discretion of Administrative Agent and upon Administrative Agent’s written notice to such Lender (i) such Lender shall be deemed to have made a cashless assignment of a portion of its Loan in the amount of such portion to Administrative Agent or, at the option of Administrative Agent, Administrative Agent’s applicable lending affiliate, in an amount that is equal to the Erroneous Payment Return Deficiency (or such lesser amount as Administrative Agent may specify) (such assignment of the Loan, the “Erroneous Payment Deficiency Assignment”) plus any accrued and unpaid interest on such assigned amount, without further consent or approval of any party hereto and without any payment by Administrative Agent or its applicable lending affiliate as the assignee of such Erroneous Payment Deficiency Assignment. Without limitation of its rights hereunder, Administrative Agent may cancel any Erroneous Payment Deficiency Assignment at any time by written notice to the applicable assigning Lender and upon such revocation the portion of the Loan assigned pursuant to such Erroneous Payment Deficiency Assignment shall be reassigned to such Lender without any requirement for payment or other consideration. The parties hereto acknowledge and agree that (1) any assignment contemplated in this Section 11.19 shall be made without any requirement for any payment or other consideration paid by the applicable assignee or received by the assignor, (2) the provisions of this Section 11.19 shall govern in the event of any conflict with the terms and conditions of Section 9.1 and (3) Administrative Agent may reflect such assignments in the Register without further consent or action by any other Person.

(e)

Each Lender (and each participant of any of the foregoing, by its acceptance of a participation) hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Payment Recipient that has received such Erroneous Payment (or portion thereof) for any reason, Administrative Agent (1) shall be subrogated to all the rights of such Payment Recipient with respect to such amount and (2) is authorized to set off, net and apply any and all amounts at any time owing to such Payment Recipient under any Loan Document, or otherwise payable or distributable by Administrative Agent to such Payment Recipient from any source, against any amount due to Administrative Agent under this Section 11.19 or under the indemnification provisions of this Agreement, (y) the receipt of an Erroneous Payment by a Payment Recipient shall not for the purpose of this Agreement be treated as a payment, prepayment, repayment, discharge or other satisfaction of the Debt and the Other Obligations owed by Borrower or any other Loan Party, except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by Administrative Agent from Borrower or any other Loan Party for the purpose of making a payment on the Debt and the Other Obligations and (z) to the extent that an Erroneous Payment was in any way or at any time credited as payment or satisfaction of the Debt and the Other Obligations, the Debt and the Other Obligations or any part thereof that were so credited, and all rights of the Payment Recipient, as the case may be, shall be reinstated and continue in full force and effect as if such payment or satisfaction had never been received.

(f)

Each party’s obligations under this Section 11.19 shall survive the resignation or replacement of Administrative Agent or any transfer of right or obligations by, or the replacement of, a Lender or the repayment, satisfaction or discharge of the Debt and the Other Obligations (or any portion thereof) under any Loan Document.

Nothing in this Section 11.19 will constitute a waiver or release of any claim of any party hereunder arising from any Payment Recipient’s receipt of an Erroneous Payment.

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198

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their duly authorized representatives, all as of the day and year first above written.

BORROWER:

0000 X XXXXXXXX, LLC,

AIR 000 XXXXX XXXXXX, LLC,

AIR 00 XXXXXX XXXXXX, LLC,

AIR BEACH, LLC,

AIR EASTPOINTE, LLC,

AIR XXXXXXXXXX 3A LESSEE, LLC,

AIR XXXXXXXXXX 3A LESSOR, LLC,

AIR XXXXX SQUARE APARTMENTS, LLC,

AIR MADERA VISTA, LLC,

AIR MEZZO, LLC,

AIR NORTH ANDOVER, L.L.C.,

AIR TREMONT, LLC,

AIR WATERWAYS VILLAGE, LLC,

AIR/BLUFFS, L.L.C.,

CAPITAL CRESCENT TRAIL, LLC,

CITY CENTER ON 7TH LESSOR, LLC,

FLAGLER VILLAGE OWNER, LLC,

LA HILLCRESTE APARTMENTS LLC,

LA PARK LA BREA C LLC,

MCZ/CENTRUM FLAMINGO II, L.L.C.,

NORTH PARK AVENUE, LLC,

RESERVE AT COCONUT POINT, LLC

SOUTHGATE TOWERS, LLC,

XXXXXXX PLACE CONDOS LLC,

XXXXXXX PLACE INVESTMENTS, LLC,

XXXXXXX PLACE HOLDINGS, LLC,

VILLAGES AT OLDE TOWNE, LLC,

VILLAGES AT SUNNYBROOK, LLC,

each a Delaware limited liability company

By:

/s/ Xxxxx Xxx

Name:

Xxxxx Xxx

Title: Managing Director and Vice President

AIR/BRANDYWINE, L.P., a Delaware limited partnership

By:

AIR Brandywine GP, LLC, a Delaware limited liability company, its general partner

By: /s/ Xxxxx Xxx

Name: Xxxxx Xxx

Title: Managing Director and Vice

President

AIR PROPERTIES FINANCE PARTNERSHIP, L.P., a Delaware limited partnership

By:

AIR Properties Finance GP, LLC, a Delaware limited liability company, its general partner

By: /s/ Xxxxx Xxx

Name: Xxxxx Xxx

Title: Managing Director and Vice

President

XXXXX XXXXXXX PARK LIMITED PARTNERSHIP, a California limited partnership

By:

LA Broadcast Center GP, LLC, a Delaware limited liability company, its general partner

By: /s/ Xxxxx Xxx

Name: Xxxxx Xxx

Title: Managing Director and Vice

President

AIR SCOTCHOLLOW APARTMENTS, L.P., a Delaware limited partnership

By:

AIR Scotchollow Apartments GP, LLC, a Delaware limited liability company, its general partner

By: /s/ Xxxxx Xxx

Name: Xxxxx Xxx

Title: Managing Director and Vice

President

AIR PROSPECT 400, L.P., a Delaware limited partnership

By:

AIR Prospect 400 GP, LLC, a Delaware limited liability company, its general partner

By: /s/ Xxxxx Xxx

Name: Xxxxx Xxx

Title: Managing Director and Vice

President

LA LAKES LP, a Delaware limited partnership

By:

LA Lakes GP, LLC, a Delaware limited liability company, its general partner

By: /s/ Xxxxx Xxx

Name: Xxxxx Xxx

Title: Managing Director and Vice

President

ADMINISTRATIVE AGENT:

XXXXX FARGO BANK, NATIONAL ASSOCIATION, a national banking association

By:

By: /s/ Xxxxxx Xxx

Name: Xxxxxx Xxx

Title: Executive Director

LENDER:

XXXXX FARGO BANK, NATIONAL ASSOCIATION, a national banking association

By:

/s/ Xxxxxx Xxx

Name:

Xxxxxx Xxx

Title:

Executive Director

SOCIÉTÉ GÉNÉRALE FINANCIAL CORPORATION, a Delaware Corporation

By:

/s/ Xxxxx Xxxxxx

Name:

Xxxxx Xxxxxx

Title:

Vice President

XXXXXXX XXXXX BANK USA, a New York State-Chartered Bank

By:

/s/ Xxxxxxxxx Xxxxxxxxxxx

Name:

Xxxxxxxxx Xxxxxxxxxxx

Title:

Authorized Person

BANK OF AMERICA, N.A., a national banking association

By:

/s/ Xxxxxx Xxxxxx

Name:

Xxxxxx Xxxxxx

Title:

Managing Director

XX XXXXXX XXXXX BANK, NATIONAL ASSOCIATION, a banking association chartered under the laws of the United States of America

By:

/s/ Xxxxxxx Xxxx

Name:

Xxxxxxx Xxxx

Title:

Authorized Signatory

XXXXXX XXXXXXX MORTGAGE CAPITAL HOLDINGS LLC, a New York limited liability company

By:

/s/ Xxxxxxx Xxxxx

Name:

Xxxxxxx Xxxxx

Title:

Vice President

BARCLAYS BANK PLC, a public limited company registered in England and Wales

By:

/s/ Xxxx Xxxxxx

Name:

Xxxx Xxxxxx

Title:

Authorized Signatory

DEUTSCHE BANK AG, NEW YORK BRANCH

By:

/s/ Xxxxxxx X Xxxx

Name:

Xxxxxxx X Xxxx

Title:

Managing Director

By:

/s/ Xxxxx Xxxxxx

Name:

Xxxxx Xxxxxx

Title:

Director

BANK OF MONTREAL, a Canadian Chartered Bank acting through its Chicago Branch

By:

/s/ Xxxxxxx Xxx Xxxxxxxx

Name:

Xxxxxxx Xxx Xxxxxxxx

Title:

Director

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LOAN AGREEMENT

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