Exhibit 10.49


 





 



 


LOAN AGREEMENT


 


Dated as of November 10, 2016


 


By and Among


 


50 MURRAY STREET ACQUISITION LLC,


as Borrower


 


And


 


DEUTSCHE BANK AG, NEW YORK BRANCH,

and any other lending institutions which may from time to time become a party hereto

as Lenders,


 


And


 


DEUTSCHE BANK AG, NEW YORK BRANCH,

as Agent


 





 



 




     


     


    

 


TABLE OF CONTENTS


 


	 	 	Page
	 	 	 
	Article 1 DEFINITIONS; PRINCIPLES OF CONSTRUCTION	1
	Section 1.1	Specific Definitions	1
	Section 1.2	Index of Other Definitions	26
	Section 1.3	Principles of Construction	29
	 	 	 
	Article 2 THE LOAN	29
	Section 2.1	The Loan	29
	2.1.1	Agreement to Lend and Borrow	29
	2.1.2	Single Disbursement to Borrower	29
	2.1.3	The Note	29
	2.1.4	Use of Proceeds	29
	Section 2.2	Interest Rate	29
	2.2.1	Interest Rate	29
	2.2.2	Default Rate	30
	2.2.3	Interest Calculation	30
	2.2.4	Usury Savings	31
	2.2.5	Breakage Indemnity	31
	Section 2.3	Loan Payments	31
	2.3.1	Payments	31
	2.3.2	Payments Generally	31
	2.3.3	Payment on Maturity Date	32
	2.3.4	Late Payment Charge	32
	2.3.5	Method and Place of Payment	32
	2.3.6	Forwarding of Payments by Agent	32
	2.3.7	Ratable Shares/Pro Rata Treatment of Payments	32
	Section 2.4	Prepayments	33
	2.4.1	Prepayments	33
	2.4.2	Voluntary Prepayments	33
	2.4.3	Mandatory Prepayments	33
	2.4.4	Prepayments After Default	33
	2.4.5	Prepayment/Repayment Conditions	34
	Section 2.5	Release Upon Payment in Full	35
	2.5.1	Release of Properties	35
	2.5.2	Assignment of Mortgage Lien	35
	Section 2.6	Interest Rate Cap Agreement	35
	2.6.1	Interest Rate Cap Agreement	35
	2.6.2	Pledge and Collateral Assignment	35
	2.6.3	Covenants	36
	2.6.4	Powers of Borrower Prior to an Event of Default	37
	2.6.5	Representations and Warranties	37
	2.6.6	Payments	38
	2.6.7	Remedies	38
	2.6.8	Sales of Rate Cap Collateral	40


 




     i


     


    

 


	2.6.9  	Public Sales Not Possible	41
	2.6.10	Receipt of Sale Proceeds	41
	2.6.11	Replacement Interest Rate Cap Agreement	41
	Section 2.7	Extension Options	41
	2.7.1	Extension Options	41
	2.7.2	Extension Documentation	43
	Section 2.8	Spread Maintenance Premium	43
	Section 2.9	Regulatory Change; Taxes	43
	2.9.1	Increased Costs	43
	2.9.2	Special Taxes	44
	2.9.3	Other Taxes	44
	2.9.4	Withholding Taxes	44
	Section 2.10	Defaulting Lender	44
	 	 	 
	Article 3 REPRESENTATIONS AND WARRANTIES	45
	Section 3.1	Borrower Representations	45
	3.1.1	Organization; Special Purpose	45
	3.1.2	Proceedings; Enforceability	45
	3.1.3	No Conflicts	45
	3.1.4	Litigation	45
	3.1.5	Agreements	46
	3.1.6	Consents	46
	3.1.7	Properties; Title	46
	3.1.8	ERISA; No Plan Assets	47
	3.1.9	Compliance	48
	3.1.10	Financial Information	48
	3.1.11	Easements; Utilities and Public Access	49
	3.1.12	Assignment of Leases	49
	3.1.13	Insurance	49
	3.1.14	Flood Zone	49
	3.1.15	Physical Condition	49
	3.1.16	Boundaries	49
	3.1.17	Leases	50
	3.1.18	Tax Filings	51
	3.1.19	No Fraudulent Transfer	51
	3.1.20	Federal Reserve Regulations	52
	3.1.21	Organizational Chart	52
	3.1.22	Organizational Status	52
	3.1.23	Bank Holding Company	52
	3.1.24	No Casualty	52
	3.1.25	Purchase Options	52
	3.1.26	FIRPTA	52
	3.1.27	Investment Company Act	52
	3.1.28	Fiscal Year	52
	3.1.29	Other Debt	52
	3.1.30	Contracts	52
	3.1.31	Full and Accurate Disclosure	53


 




     ii


     


    

 


	3.1.32	Other Obligations and Liabilities	53
	3.1.33	Intellectual Property/Websites	53
	3.1.34	Operations Agreements	53
	3.1.35	Illegal Activity	53
	3.1.36	Residential Tax Benefits	53
	Section 3.2	Survival of Representations	54
	 	 	 
	Article 4 BORROWER COVENANTS	54
	Section 4.1	Payment and Performance of Obligations	54
	Section 4.2	Due on Sale and Encumbrance; Transfers of Interests	54
	Section 4.3	Liens	55
	Section 4.4	Special Purpose	55
	Section 4.5	Existence; Compliance with Legal Requirements	55
	Section 4.6	Taxes and Other Charges	56
	Section 4.7	Litigation	56
	Section 4.8	Title to the Properties	56
	Section 4.9	Financial Reporting	56
	4.9.1	Generally	56
	4.9.2	Quarterly Reports	57
	4.9.3	Annual Reports	58
	4.9.4	Other Reports	58
	4.9.5	Annual Budget	59
	4.9.6	Extraordinary Operating Expenses	59
	4.9.7	Breach	60
	Section 4.10	Access to Properties	60
	Section 4.11	Leases	60
	4.11.1	Generally	60
	4.11.2	Approvals	60
	4.11.3	Covenants	62
	4.11.4	Security Deposits	63
	Section 4.12	Repairs; Maintenance and Compliance; Alterations	63
	4.12.1	Repairs; Maintenance and Compliance	63
	4.12.2	Alterations	64
	Section 4.13	Approval of Major Contracts	65
	Section 4.14	Property Management	66
	4.14.1	Management Agreement	66
	4.14.2	Prohibition Against Termination or Modification	66
	4.14.3	Replacement of Manager	66
	Section 4.15	Performance by Borrower; Compliance with Agreements	67
	Section 4.16	Licenses; Intellectual Property; Website	67
	4.16.1	Licenses	67
	4.16.2	Intellectual Property	67
	4.16.3	Website	67
	Section 4.17	Further Assurances	67
	Section 4.18	Estoppel Statement	68
	Section 4.19	Notice of Default	69
	Section 4.20	Cooperate in Legal Proceedings	69


 




     iii


     


    

 


	Section 4.21	Indebtedness	69
	Section 4.22	Business and Operations	69
	Section 4.23	Dissolution	69
	Section 4.24	Debt Cancellation	70
	Section 4.25	Affiliate Transactions	70
	Section 4.26	No Joint Assessment	70
	Section 4.27	Principal Place of Business	70
	Section 4.28	Change of Name, Identity or Structure	70
	Section 4.29	Costs and Expenses	71
	Section 4.30	Indemnity	72
	Section 4.31	ERISA	72
	Section 4.32	Patriot Act Compliance	73
	Section 4.33	Residential Tax Benefits	74
	 	 	 
	Article 5 INSURANCE, CASUALTY AND CONDEMNATION	75
	Section 5.1	Insurance	75
	5.1.1	Insurance Policies	75
	5.1.2	Insurance Company	80
	Section 5.2	Casualty	81
	Section 5.3	Condemnation	82
	Section 5.4	Restoration	82
	 	 	 
	Article 6 CASH MANAGEMENT AND RESERVE FUNDS	88
	Section 6.1	Cash Management Arrangements	88
	Section 6.2	Required Repairs	88
	Section 6.3	Tax Funds	88
	6.3.1	Deposits of Tax Funds	88
	6.3.2	Release of Tax Funds	88
	Section 6.4	Insurance Funds	89
	6.4.1	Deposits of Insurance Funds	89
	6.4.2	Release of Insurance Funds	89
	6.4.3	Acceptable Blanket Policy	89
	Section 6.5	Capital Expenditure Funds	89
	6.5.1	Deposits of Capital Expenditure Funds	89
	6.5.2	Release of Capital Expenditure Funds	90
	Section 6.6	Rollover Funds	90
	6.6.1	Deposits of Rollover Funds	90
	6.6.2	Release of Rollover Funds	91
	Section 6.7	Casualty and Condemnation Account	92
	Section 6.8	Cash Collateral Funds	92
	Section 6.9	Property Cash Flow Allocation	92
	6.9.1	Order of Priority of Funds in Deposit Account	92
	6.9.2	Failure to Make Payments	93
	6.9.3	Application After Event of Default	93
	Section 6.10	Security Interest in Reserve Funds	94


 




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	Article 7 PERMITTED TRANSFERS	94
	Section 7.1	Permitted Transfer of the Entire Properties	94
	Section 7.2	Permitted Transfers	97
	Section 7.3	Cost and Expenses; Searches; Copies	100
	 	 	 
	Article 8 DEFAULTS	101
	Section 8.1	Events of Default	101
	Section 8.2	Remedies	104
	8.2.1	Acceleration	104
	8.2.2	Remedies Cumulative	104
	8.2.3	Severance	105
	8.2.4	Agent’s Right to Perform	105
	 	 	 
	Article 9 SALE AND SECURITIZATION OF MORTGAGE	106
	Section 9.1	Sale of Mortgage and Securitization	106
	Section 9.2	Securitization Indemnification	109
	Section 9.3	Severance	112
	9.3.1	Severance Documentation	112
	9.3.2	Intentionally Omitted	113
	9.3.3	Cooperation; Execution; Delivery	113
	Section 9.4	Costs and Expenses	113
	 	 	 
	Article 10 MISCELLANEOUS	114
	Section 10.1	Exculpation	114
	Section 10.2	Survival; Successors and Assigns	117
	Section 10.3	Agent’s Discretion; Rating Agency Review Waiver	117
	Section 10.4	Governing Law	118
	Section 10.5	Modification, Waiver in Writing	119
	Section 10.6	Notices	119
	Section 10.7	Waiver of Trial by Jury	121
	Section 10.8	Headings, Schedules and Exhibits	121
	Section 10.9	Severability	121
	Section 10.10	Preferences	121
	Section 10.11	Waiver of Notice	121
	Section 10.12	Remedies of Borrower	122
	Section 10.13	Offsets, Counterclaims and Defenses	122
	Section 10.14	No Joint Venture or Partnership; No Third Party Beneficiaries	122
	Section 10.15	Publicity	122
	Section 10.16	Waiver of Marshalling of Assets	123
	Section 10.17	Certain Waivers	123
	Section 10.18	Conflict; Construction of Documents; Reliance	123
	Section 10.19	Brokers and Financial Advisors	123
	Section 10.20	Prior Agreements	124
	Section 10.21	Servicer	124
	Section 10.22	Joint and Several Liability	124
	Section 10.23	Creation of Security Interest	124
	Section 10.24	Taxes	125


 




     v


     


    

 


	Section 10.25	Counterparts	125
	Section 10.26	Set-Off	125
	Section 10.27	Modification, Waiver in Writing; Approvals	125
	Section 10.28	Assignments and Participations	128
	Section 10.29	Acknowledgement and Consent to Bail-In of EEA Financial Institutions	130
	 	 	 
	Article 11 AGENT	131
	Section 11.1	Appointment and Authorization	131
	Section 11.2	Delegation of Duties	132
	Section 11.3	Exculpatory Provisions	133
	Section 11.4	Reliance by Agent	133
	Section 11.5	Notice of Default	133
	Section 11.6	Non-Reliance on Agent and Other Lenders	134
	Section 11.7	Indemnification	134
	Section 11.8	Agent in its Individual Capacity	134
	Section 11.9	Successor Agent	135
	Section 11.10	Administrative Agent Advances	135
	Section 11.11	Ratable Share	136
	Section 11.12	Letters of Credit	136
	Section 11.13	Modifications to Article 11	136


 




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Schedules and Exhibits


 


	Schedules:
	 	 	 
	Schedule I	-	Rent Rolls
	Schedule II	-	Required Repairs
	Schedule III	-	Organization of Borrower
	Schedule IV	-	Exceptions to Representations and Warranties
	Schedule V	-	Definition of Special Purpose Bankruptcy Remote Entity
	Schedule VI	-	Intellectual Property/Websites
	Schedule VII	-	Allocated Loan Amounts
	Schedule VIII	-	Form of Tenant Estoppel Certificate
	Schedule IX	-	Ratable Share
	Schedule X	-	Form of Assignment and Acceptance
	 	 	 
	Exhibits:
	 	 	 
	Exhibit A	-	Secondary Market Transaction Information


 




     vii


     


    

 


LOAN AGREEMENT


 


THIS LOAN
AGREEMENT, dated as of November 10, 2016 (as amended, restated, replaced, supplemented or otherwise modified from
time to time, this “Agreement”), by and among DEUTSCHE BANK AG, NEW YORK BRANCH, a branch of
Deutsche Bank AG, a German Bank, authorized by the New York Department of Financial Services, having an address at 60 Wall
Street, 10th Floor, New York, New York 10005 (collectively, together with its successors and permitted assigns hereunder,
including any Assignee (as defined herein) hereunder and such other co-lenders as may exist from time to time, each a
“Lender” and collectively, the “Lenders”), DEUTSCHE BANK AG, NEW YORK
BRANCH, a branch of Deutsche Bank AG, a German Bank, authorized by the New York Department of Financial Services
(“DB”), having an address at 60 Wall Street, New York, New York 10005, as administrative agent
(including any of its successors and assigns, “Agent”) for itself and the other Lenders party
hereto from time to time, and 50 MURRAY STREET ACQUISITION LLC a Delaware limited liability company, having an address
at c/o Clipper Equity LLC, 46-11 12th Avenue, Suite 1L, Brooklyn, New York 11219 (together with its permitted
successors and assigns, “Borrower”).


 


All capitalized terms used
herein shall have the respective meanings set forth in Article 1 hereof.


 


WITNESSETH:


 


WHEREAS, Borrower
desires to obtain the Loan from Lenders; and


 


WHEREAS, Lenders
are willing to make the Loan to Borrower, subject to and in accordance with the terms and conditions of this Agreement and the
other Loan Documents.


 


NOW, THEREFORE,
in consideration of the covenants set forth in this Agreement, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto hereby agree, represent and warrant as follows:


 


Article
1


 


DEFINITIONS;
PRINCIPLES OF CONSTRUCTION


 


Section
1.1           Specific Definitions. 


 


For all purposes of this
Agreement, except as otherwise expressly provided:


 


“Acceptable
Accounting Method” shall mean either (a) GAAP, (b) Federal income tax basis of accounting or (c) with respect to
Guarantor, a Guarantor Acceptable Accounting Method (as defined in the Guaranty), in each case consistently applied with respect
to the applicable financial statements and reporting required under the Loan Documents.


 


“Acknowledgment”
shall mean the Acknowledgment, dated on or about the date hereof made by Counterparty, or as applicable, Approved Counterparty.


 


“Adjusted Actual
Vacancy Rate” shall mean, as of any date of calculation, an assumed vacancy rate, expressed as a percentage and calculated
as (i) annualized market rents (as determined by Agent in its reasonable discretion) for units that are vacant as of such calculation
date over (ii) GPR.


 




     


     


    

 


“Affiliate”
shall mean, as to any Person, any other Person that (i) owns directly or indirectly ten percent (10%) or more of all equity
interests in such Person, and/or (ii) is in Control of, is Controlled by or is under common ownership or Control with such
Person, and/or (iii) is a director or officer of such Person or of an Affiliate of such Person, and/or (iv) is the spouse,
issue or parent of such Person or of an Affiliate of such Person.


 


“Allocated
Loan Amount” shall mean, with respect to each Property, the amount set forth with respect to such Property on Schedule
VII.


 


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


 


“Alteration
Threshold” shall mean, with respect to each Property, two percent (2%) of the Outstanding Principal Balance.


 


“Annual Budget”
shall mean the operating and capital budget for the Property owned by Borrower setting forth, on a month-by-month basis, in reasonable
detail, each line item of Borrower’s good faith estimate of anticipated operating income, operating expenses and Capital
Expenditures for the applicable Fiscal Year.


 


“Appraised
Value” shall mean the fair market value of the Properties reflected in an appraisal paid for by Borrower that is
(i) dated not more than ninety (90) days prior to the date of calculation, (ii) signed by a qualified, independent MAI
appraiser selected or approved by Agent, (iii) addressed to Agent and Lenders and their successors and assigns, (iv) made
in compliance with the requirements of the Uniform Standard of Professional Appraisal Practice, or any successor thereto, and Title
XI of the Federal Institutions Reform, Recovery, and Enforcement Act of 1989 and the regulations promulgated thereunder, and (v) otherwise
reasonably satisfactory to Agent in all material respects.


 


“Approved Capital
Expenditures” shall mean Capital Expenditures incurred by Borrower and are either (i) included in the Approved
Annual Budget (subject to a variance of up to five percent (5%) in the aggregate) or (ii) approved by Agent, which approval
shall not be unreasonably withheld or delayed.


 


“Approved Counterparty”
shall mean a bank or other financial institution which has and maintains (i) a long-term unsecured debt rating of “A-”
or higher by S&P and (ii) a long-term unsecured debt rating of not less than “A3” by Moody’s; provided
however, that SMBC Capital Markets, Inc. (with an Acceptable SMBC Credit Support Party as its credit support party)
will be an Acceptable Counterparty so long as the rating of its credit support party (provided such credit support party shall
be an Acceptable SMBC Credit Support Party) is not downgraded, withdrawn or qualified by S&P or Moody’s from the long
and short term ratings issued by such rating agencies below the lesser of the above rating (as applicable) or its ratings as of
the date hereof. As used herein, an “Acceptable SMBC Credit Support Party” shall mean (x) Sumitomo Mitsui
Banking Corporation or a replacement guarantor that meets the foregoing rating requirements and provides a guaranty on a form approved
by Agent/Lender and (y) provided any such credit support party guaranty guaranties all current and future obligations under the
Interest Rate Cap Agreement or Replacement Interest Rate Cap Agreement, as applicable.


 




    2


     


    

 


“Approved Leasing
Expenses” shall mean actual out-of-pocket expenses incurred by Borrower in leasing commercial space at the Properties
pursuant to commercial Leases entered into in accordance with the Loan Documents, including brokerage commissions and tenant improvements,
which expenses (i) are (A) specifically approved by Agent in connection with approving the applicable commercial Lease,
(B) incurred in the ordinary course of business and on market terms and conditions in connection with commercial Leases which
do not require Agent’s approval under the Loan Documents, and Agent shall have received (and approved, if applicable) a budget
for such tenant improvement costs and a schedule of leasing commission payments payable in connection therewith, or (C) otherwise
approved by Agent, which approval shall not be unreasonably withheld or delayed, and (ii) are substantiated by executed Lease
documents and brokerage agreements.


 


“Approved Replacement
Guarantor” shall mean one or more Persons that satisfy the conditions set forth in clauses (x) and (y) of the definition
of “Qualified Transferee” and whose identity, experience, financial condition and creditworthiness, including net worth
and liquidity, is reasonably acceptable to Agent, for which Agent has received a Rating Agency Confirmation from each applicable
Rating Agency and who Controls Borrower (or any Transferee Borrower) or owns a direct or indirect interest in Borrower (or any
Transferee Borrower). If two or more Approved Replacement Guarantors are delivering replacement guaranties and replacement environmental
indemnities to Agent (on behalf of Lenders), then (i) only one such Approved Replacement Guarantor must Control Borrower (or
Transferee Borrower), directly or indirectly (provided that each such Approved Replacement Guarantor must own a direct or indirect
interest in Borrower (or Transferee Borrower)) and (ii) the obligations of all Approved Replacement Guarantors shall be joint
and several.


 


“Assignment
of Agreements” shall mean that certain Assignment of Agreements, Licenses, Permits and Contracts, dated as of the
date hereof, from Borrower, as assignor, to Agent (on behalf of Lenders), as assignee.


 


“Assignment
of Leases” shall mean that certain first priority Assignment of Leases and Rents, dated as of the date hereof and
executed and delivered by Borrower, as assignor, to Agent (on behalf of Lenders), as assignee.


 


“Assignment
of Management Agreement” shall mean that certain Assignment of Management Agreement and Subordination of Management
Fees dated as of the date hereof among Borrower, Clipper Manager and Agent (on behalf of Lenders).


 


“Assumed Note
Rate” shall mean an interest rate equal to the sum of 1% plus the Spread plus the LIBOR Floor.


 


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


 


“Bankruptcy
Code” shall mean Title 11 of the United States Code entitled “Bankruptcy”, as 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.


 




    3


     


    

 


“Borrower’s
Knowledge” shall mean the actual knowledge of (i) David Bistricer, (ii) Sam Levinson or (iii) such Person
or Persons who is primarily responsible for the ownership, operation or acquisition of any Property or who is reasonably likely
to be familiar with the subject matter qualified by such phrase; and in each case, after conducting such due diligence in connection
with the Properties, the Borrower, the borrowing of the Loan and the representations that are qualified in this Agreement as being
made to “Borrower’s Knowledge” as is customary for Borrower in connection with the acquisition of similar properties
to the Properties.


 


“Borrower Provided
Third Party Report” shall mean any statement, report or document provided to Agent by or on behalf of Borrower by
a party who is not an Affiliate of Borrower.


 


“Business Day”
shall mean any day other than a Saturday, a Sunday or a legal holiday on which national banks are not open for general business
in (i) the State of New York, (ii) the state where the corporate trust office of the Trustee is located, or (iii) the
state where the servicing offices of the Servicer are located.


 


“Calculation
Date” shall mean the last day of each calendar quarter during the Term.


 


“Capital Expenditures”
for any period shall mean amounts expended for replacements and alterations to any Property (excluding tenant improvements) and
required to be capitalized according to GAAP.


 


“Cash Management
Agreement” shall mean that certain Deposit Account Agreement of even date herewith among Agent (on behalf of Lenders),
Borrower, Clipper Manager and Wells Fargo Bank, National Association.


 


“Clearing Account
Agreement” shall mean that certain Deposit Account Control Agreement dated the date hereof by and among Borrower,
Agent (on behalf of Lenders) and Wells Fargo Bank, National Association.


 


“Clipper Management
Agreement” shall mean that certain Management Agreement, dated as of November 8, 2016, by and between Borrower and
Clipper Manager, pursuant to which Clipper Manager provides management and other services with respect to the Properties.


 


“Clipper Manager”
shall mean Clipper Realty L.P., a Delaware limited partnership.


 


“Closing Date”
shall mean the date of the funding of the Loan.


 


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


 


“Collection
Period” shall mean, with respect to any Monthly Payment Date, the period of days from and including the immediately
preceding Monthly Payment Date to and including the date immediately prior to such Monthly Payment Date.


 


“Combined
Debt Service” shall mean, with respect to any particular period, the scheduled principal (if any) and interest
payments due under (i) the Note and (ii) the Current Mezzanine Note, due in such period.


 




    4


     


    

 


“Combined
Debt Yield” shall mean, for any date of calculation by Agent, the percentage obtained by dividing (i) the
Underwritten Net Cash Flow as of such date by (ii) the sum of the Outstanding Principal Balance as of such date and the outstanding
principal amount of the Current Mezzanine Loan as of such date.


 


“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 Property, or any interest therein or right accruing thereto,
including any right of access thereto or any change of grade affecting any Property or any part thereof.


 


“Control”
shall mean, with respect to any Person, the possession, directly or indirectly, of the power to direct or cause the direction of
the management and policies of such Person, through the ownership of voting securities, by contract or otherwise, and the terms
Controlled, Controlling and Common Control shall have correlative meanings.


 


“Counterparty”
shall mean, (i) with respect to the Interest Rate Cap Agreement, SMBC Capital Markets, Inc. and (ii) with respect to any Replacement Interest
Rate Cap Agreement, any Approved Counterparty thereunder.


 


“Current Mezzanine
Lender Payment Instruction” shall mean a notice, which notice may be in the form of the monthly payment invoice sent
to Current Mezzanine Loan Borrower, setting forth the Monthly Current Mezzanine Debt Service Payment and with respect to the initial
notice or if there is any change from the initial notice or any prior notice, (i) the Current Mezzanine Loan Account and (ii) wire
instructions for such payment.


 


“Current Mezzanine
Loan” shall mean that certain mezzanine loan in the principal amount of $75,000,000 made on the date hereof by Current
Mezzanine Loan Lender to Current Mezzanine Loan Borrower, and evidenced and secured by the Current Mezzanine Loan Documents.


 


“Current Mezzanine
Loan Account” shall mean the “Deposit Account” as defined in the Current Mezzanine Loan Agreement.


 


“Current Mezzanine
Loan Borrower” shall mean 50 Murray Mezz LLC, a Delaware limited liability company.


 


“Current Mezzanine
Loan Default” shall mean an “Event of Default” under the Current Mezzanine Loan and as defined in the
Current Mezzanine Loan Documents and Lender may conclusively rely on any notice from Current Mezzanine Loan Lender of such Current
Mezzanine Loan Default without any inquiry into the validity thereof.


 


“Current Mezzanine
Loan Default Revocation Notice” shall mean a notice from Current Mezzanine Loan Lender, with respect to the Current
Mezzanine Loan (upon which Lender may conclusively rely without any inquiry into the validity thereof) that a Current Mezzanine
Loan Default under the Current Mezzanine Loan of which Lender was previously notified has either been cured or waived.


 




    5


     


    

 


“Current Mezzanine
Loan Documents” shall mean (i) the First Mezzanine Loan Agreement (the “Current Mezzanine Loan Agreement”)
between Current Mezzanine Loan Lender and Current Mezzanine Loan Borrower, (ii) the First Mezzanine Promissory Note (the “Current
Mezzanine Note”) in the original principal amount of the Current Mezzanine Loan made by Current Mezzanine Loan Borrower
and payable to Current Mezzanine Loan Lender, (iii) the First Mezzanine Pledge and Security Agreement made by Current Mezzanine
Loan Borrower in favor of Current Mezzanine Loan Lender, (iv) each UCC Financing Statement executed by Current Mezzanine Loan Borrower
in favor of Current Mezzanine Loan Lender in connection with the foregoing and (v) any other “Loan Document”, as defined
in the Current Mezzanine Loan Agreement, as each of the foregoing may be modified, amended and restated from time to time in accordance
with the terms and provisions of the Intercreditor Agreement.


 


“Current Mezzanine
Loan Lender” shall mean 50 Murray Mezz Funding LLC, a Delaware limited liability company, in its capacity as the
holder of the Current Mezzanine Loan and any subsequent holder of the Current Mezzanine Loan to whom the Current Mezzanine Loan
has been assigned or transferred pursuant to the terms of the Intercreditor Agreement.


 


“Current Mezzanine
Payment Account” shall mean an account into which Deposit Bank shall deposit from the Deposit Account the amounts
required to be deposited pursuant to Section 6.9.1(x) hereof or Section 6.9.1(xi)(B)(2) hereof, as applicable.


 


“Debt”
shall mean the Outstanding Principal Balance together with all interest accrued and unpaid thereon and all other sums (including
the Spread Maintenance Premium) due to Lenders from time to time in respect of the Loan under the Note, this Agreement, the Mortgage,
the Environmental Indemnity or any other Loan Document.


 


“Debt Service”
shall mean, with respect to any particular period, the scheduled principal (if any) and interest payments due under the Note in
such period.


 


“Debt Service
Coverage Ratio” shall mean, a ratio, as reasonably determined by Agent in which:


 


(a)          the
numerator is the Underwritten Net Cash Flow; and


 


(b)          the
denominator is the aggregate of (i) annual interest payment due under the Note assuming an interest rate equal to the Strike
Price plus the Spread, and (ii) annual interest payment due under the Current Mezzanine Note assuming an interest rate equal
to the Strike Price plus the Spread (as such terms are defined in the Current Mezzanine Note).


 


“Debt Yield”
shall mean, for any date of calculation by Agent, the percentage obtained by dividing (i) the Underwritten Net Cash Flow as
of such date by (ii) the sum of the Outstanding Principal Balance as of such date.


 


“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 constitute an Event of Default.


 


“Default Rate”
shall mean, with respect to the Loan, a rate per annum equal to the lesser of (i) the Maximum Legal Rate or (ii) four
percent (4%) above the Interest Rate.


 




    6


     


    

 


“Defaulting
Lender” means, subject to Section 2.10 of this Agreement, any Lender that (a) has failed to (i) fund
all or any portion of the Loan required to be funded by it under the Loan Documents within one (1) Business Day of the date when
such amount was required to be funded thereunder unless such Lender notifies Agent and Borrower in writing that such failure is
the result of one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default,
shall be specifically identified in such writing) having not been then satisfied, or (ii) pay to Agent any other amount required
to be paid by it under the Loan Documents within two Business Days of the date when due, (b) has notified Borrower or the
Agent in writing that it does not intend to comply with its funding obligations under this Agreement, or has made a public statement
to that effect (unless such writing or public statement relates to such Lender’s obligation to fund the Loan hereunder and
states that such position is based on a condition precedent to funding (which condition precedent, together with any applicable
default, shall be specifically identified in such writing or public statement) not being satisfied at such time), (c) has
failed, within three Business Days after written request by Agent or Borrower, to confirm in writing to Agent and Borrower that
it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting
Lender pursuant to this clause (c) upon receipt of such written confirmation by the applicable Agent and Borrower), or (d) has,
or has a direct or indirect parent company that has, (i) become the subject of a proceeding under the Bankruptcy Code of the
United States of America, any other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium,
rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable
jurisdictions from time to time in effect, or (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; 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. Any determination by Agent that a Lender is a Defaulting
Lender under clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be
deemed to be a Defaulting Lender (subject to Section 2.10) upon delivery of written notice of such determination to
Borrower and each Lender.


 


“Deposit Account”
shall mean an Eligible Account at the Deposit Bank.


 


“Deposit Bank”
shall mean the bank or banks selected by Agent to maintain the Deposit Account. Agent may in its sole discretion change the Deposit
Bank from time to time.


 


“Eligibility
Requirements” shall mean, with respect to any Person, that such Person (A) has total assets (in name or under
management) in excess of $600,000,000 and (except with respect to a pension advisory firm or similar fiduciary) capital/statutory
surplus or shareholder’s equity of at least $250,000,000, in each case excluding the Property and (B) is regularly engaged
in the business of owning, operating or investing in commercial real estate properties.


 




    7


     


    

 


“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 (or subaccounts thereof) 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 (or subaccounts
thereof) maintained with the corporate trust department of a federal depository institution or state chartered depository institution
subject to regulations regarding fiduciary funds on deposit similar to Title 12 of the Code of Federal Regulations §9.10(b),
having in either case corporate trust powers, acting in its fiduciary capacity, and a combined capital and surplus of at least
$50,000,000, subject to supervision or examination by federal and state authorities and having a long-term unsecured debt rating
of “BBB-” or higher by S&P and “A2” or higher by Moody’s and a short-term unsecured debt rating
of “A-1” or higher by S&P and “P-1” or higher by Moody’s. An Eligible Account will not be evidenced
by a certificate of deposit, passbook or other instrument.


 


“Eligible Institution”
shall mean either (a) Wells Fargo Bank, National Association or (b) 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 Moody’s and “F1” by Fitch (and the long term unsecured debt obligations of such
depository institution are rated at least “A” by Fitch) in the case of accounts in which funds are held for thirty
(30) days or less or, in the case of accounts in which funds are held for more than thirty (30) days, the long term unsecured debt
obligations of which are rated at least (i) “A” by S&P, (ii) “A” by Fitch (and the short
term deposits or short term unsecured debt obligations or commercial paper of such depository institution are rated no less than
“F1” by Fitch), and (iii) “A2” by Moody’s, or in the case of Letters of Credit, the long term
unsecured debt obligations of which are rated at least (i) “A+” by S&P, (ii) “A+” by Fitch
(and the short term deposits or short term unsecured debt obligations or commercial paper of such depository institution are rated
no less than “F1” by Fitch) and (iii) “A1” by Moody’s; provided, however, for purposes of the
Deposit Bank, the definition of Eligible Institution shall have the meaning set forth in the Cash Management Agreement.


 


“Equinox Litigation”
shall mean that certain litigation entitled Equinox Tribeca, Inc. v. 50 Murray Street Acquisition, LLC, as successor in interest
to Lionshead 110 Development, LLC, filed under index no. 650689/2016 in the Supreme Court of the State of New York, County of New
York and any other counterclaim, claim, action, lawsuit or proceeding based on the facts and circumstances contained therein.


 


“Environmental
Indemnity” shall mean that certain Environmental Indemnity Agreement dated as of the date hereof executed by Borrower
and Guarantor in connection with the Loan for the benefit of Agent (for itself and on behalf of Lenders).


 


“ERISA Affiliate”
shall mean any trade or business (whether or not incorporated) which is a member of the same controlled group of corporations or
group of trades or businesses under common control with Borrower or, in the case of a Guarantor who is an entity, the Guarantor
is treated as a single employer together with Borrower or, in the case of a Guarantor who is an entity, the Guarantor under Sections
414(b), (c), (m) or (o) of the Code or Section 4001(b)(1) of ERISA.


 




    8


     


    

 


“ERISA Event”
shall mean (i) the failure on the part of Borrower, Guarantor, or any ERISA Affiliate to make any required contribution to
a Multiemployer Plan when due; (ii) a determination that any Multiemployer Plan (other than the Multiemployer Plan to which
contributions are required under the Union Contract) is, or is expected to be, in “critical” or “endangered”
status under Section 432 of the Code or Section 305 of ERISA; (iii) the imposition of liability on Borrower or Guarantor,
or any ERISA Affiliates pursuant to Section 4062(e) or 4069 of ERISA or by reason of the application of Section 4212(c) of ERISA
or as a result of contract or indemnification relating to any Plan or Multiemployer Plan; (iv) the withdrawal of Borrower, Guarantor,
or any ERISA Affiliates in a complete or partial withdrawal (within the meaning of Sections 4203 and 4205 of ERISA) from any Multiemployer
Plan or the receipt by Borrower, Guarantor, or any ERISA Affiliates of notice from any Multiemployer Plan that it is in reorganization
or insolvency pursuant to Section 4241 or 4245 of ERISA, or that it intends to terminate or has terminated under Section 4041A
or 4042 of ERISA; (v) the occurrence of a non-exempt “prohibited transaction” (within the meaning of Section 4975 of
the Code or Section 406 of ERISA, respectively) with respect to any Plan which could reasonably be expected to result in liability
to Borrower or Guarantor; (vi) there is any investigation or review by any governmental agency, or action, suit, proceeding
or arbitration concerning any matter with respect to any Employee Benefit Plan; or (vii) the assertion of a material claim (other
than routine claims for benefits) against any Plan or the assets thereof, or against Borrower, Guarantor, or any ERISA Affiliates
in connection with any Multiemployer Plan or Plan.


 


“Employee Benefit
Plan” shall mean any employee benefit plan within the meaning of section 3(3) of ERISA maintained by Borrower, Guarantor,
or any ERISA Affiliate or to which Borrower, Guarantor, or any ERISA Affiliate makes contributions or with respect to which any
of them has any liability.


 


“Extension
Fee” shall mean a non-refundable fee equal to (i) 0.25% of the Outstanding Principal Balance in connection with Borrower’s
exercise of the Second Extension Option and payable prior to the First Extended Maturity Date and (ii) 0.25% of the Outstanding
Principal Balance in connection with Borrower’s exercise of the Third Extension Option and payable prior to the Second Extended
Maturity Date.


 


“Extension
Option” shall mean the First Extension Option, the Second Extension Option, or the Third Extension Option, as applicable.


 


“Extension
Strike Price” shall mean the lower of (i) 3.50% and (ii) a strike price, determined by Agent following the
exercise by Borrower of any Extension Option, equal to such annual interest rate as shall result in the Debt Service Coverage Ratio
being not less than 1.05:1.00.


 


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


 


“Fitch”
shall mean Fitch, Inc.


 


“GAAP”
shall mean generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board
and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards
Board (or agencies with similar functions of comparable stature and authority within the accounting profession), or in such other
statements by such entity as may be in general use by significant segments of the U.S. accounting profession.


 




    9


     


    

 


“Governmental
Authority” shall mean any court, board, agency, department, committee, commission, central bank, office or authority
of any nature whatsoever (including any political subdivision or instrumentality thereof) for any governmental or quasi-governmental
unit (whether federal, state, commonwealth, county, district, municipal, city, parish, provincial or otherwise) (whether of the
government of the United States or any other nation) now or hereafter in existence (including any supra-national bodies such as
the European Union or the European Central Bank and any intergovernmental organizations such as the United Nations).


 


“GPR”
shall mean the sum of (i) annualized actual in place rents under bona fide residential Leases at the Properties and (ii) annualized
market rents (as determined by Agent in its reasonable discretion) for units that are vacant as of the applicable date of calculation.


 


“Gross Revenue”
shall mean all revenue derived from the ownership and operation of the Properties from whatever source, including Rents and any
Insurance Proceeds (whether or not Agent elects to treat any such Insurance Proceeds as business or rental interruption Insurance
Proceeds pursuant to Section 5.4(f) hereof).


 


“Guarantor”
shall mean, individually or collectively as the context requires, David Bistricer, an individual, Trapeze Inc., Clipper Realty,
Inc. or any other Person that now or hereafter guarantees the obligations of Borrower under any Loan Document.


 


“Guarantor
Financial Covenants” shall mean those covenants set forth in Section 5.2 of the Guaranty.


 


“Guaranty”
shall mean that certain Guaranty of Recourse Obligations of even date herewith from Guarantor for the benefit of Agent (for itself
and on behalf of Lenders).


 


“Indebtedness”
shall mean, for any Person, without duplication: (i) all indebtedness of such Person for borrowed money, for amounts drawn
under a letter of credit, or for the deferred purchase price of property for which such Person or its assets is liable, (ii) all
unfunded amounts under a loan agreement, letter of credit, or other credit facility for which such Person would be liable if such
amounts were advanced thereunder, (iii) all amounts required to be paid by such Person as a guaranteed payment to partners
or a preferred or special dividend, including any mandatory redemption of shares or interests, (iv) all indebtedness guaranteed
by such Person, directly or indirectly, (v) all obligations under leases that constitute capital leases for which such Person
is liable, (vi) all obligations of such Person under interest rate swaps, caps, floors, collars and other interest hedge agreements,
in each case for which such Person is liable or its assets are liable, whether such Person (or its assets) is liable contingently
or otherwise, as obligor, guarantor or otherwise, or in respect of which obligations such Person otherwise assures a creditor against
loss, (vii) all obligations under any PACE loans and (viii) any other contractual obligation for the payment of money which are
not settled within thirty (30) days.


 


“Independent”
shall mean, when used with respect to any Person, a Person who: (i) does not have any direct financial interest or any material
indirect financial interest in Borrower or in any Affiliate of Borrower, (ii) is not connected with Borrower or any Affiliate
of Borrower as an officer, employee, promoter, underwriter, trustee, partner, member, manager, creditor, director, supplier, customer
or person performing similar functions and (iii) is not a member of the immediate family of a Person defined in (i) or
(ii) above.


 




    10


     


    

 


“Independent
Accountant” shall mean (i) a firm of nationally recognized, certified public accountants which is Independent
and which is selected by Borrower and reasonably acceptable to Agent, (ii) such other certified public accountant(s) selected
by Borrower, which is Independent and reasonably acceptable to Agent, or (iii) Mayer Rispler & Co. or BDO Seidman, LLP (provided
that Agent reserves the right to disapprove Meyer Rispler & Co. or BDO Seidman, LLP as an approved Independent Accountant and
to require a replacement Independent Accountant if Meyer Rispler & Co. or BDO Seidman, LLP are not preparing the requisite
financial statements substantially in accordance with the provisions contained herein).


 


“Insolvency
Opinion” shall mean that certain bankruptcy non-consolidation opinion letter dated the date hereof delivered by Backenroth
Frankel & Krinsky LLP in connection with the Loan.


 


“Intercreditor
Agreement” means the intercreditor agreement between Lender, as senior lender, and Current Mezzanine Loan Lender,
as mezzanine lender, dated as of the date of origination of the Current Mezzanine Loan, as the same may be amended, restated, supplemented
or otherwise modified from time to time.


 


“Interest Determination
Date” shall mean, (A) with respect to the Initial Interest Period, the date that is two (2) Business Days before
the Closing Date and (B) with respect to any other Interest Period, the date which is two (2) Business Days prior to the fifteenth
(15th) day of each calendar month; provided, however, that at the option of Agent in connection with a Securitization,
an additional Interest Determination Date shall occur on the date which is two (2) Business Days prior to the closing date of the
Securitization (which shall adjust the Interest Rate for the remainder of the then-current Interest Period). When used with respect
to an Interest Determination Date, Business Day shall mean any day on which banks are open for dealing in foreign currency and
exchange in London.


 


“Interest Rate”
shall mean, with respect to each Interest Period, an interest rate per annum equal to (i) for a LIBOR Loan, the sum of (a) the
greater of LIBOR, determined as of the Interest Determination Date immediately preceding the commencement of such Interest Period
and the LIBOR Floor, plus (b) the Spread (or, when applicable pursuant to this Agreement or any other Loan Document, the Default
Rate); and (ii) for a Prime Loan, the sum of (a) the greater of the Prime Rate and the Prime Rate Floor, plus (b) the Prime Rate
Spread (or, when applicable pursuant to this Agreement or any other Loan Document, the applicable Default Rate).


 


“Interest Rate
Cap Agreement” shall mean the Confirmation and Agreement (together with the confirmation and schedules relating thereto),
dated on or about the date hereof between the Counterparty and Borrower and collaterally assigned to Agent (on behalf of Lenders)
pursuant to this Agreement. After delivery of a Replacement Interest Rate Cap Agreement to Agent (on behalf of Lenders), the term
Interest Rate Cap Agreement shall be deemed to mean such Replacement Interest Rate Cap Agreement. The Interest Rate Cap Agreement
shall be governed by the laws of the State of New York and shall contain each of the following:


 


(a)          the
notional amount of the Interest Rate Cap Agreement shall be equal to the maximum principal amount of the Loan;


 




    11


     


    

 


(b)          the
remaining term of the Interest Rate Cap Agreement shall at all times extend through the end of the Interest Period in which the
Maturity Date occurs as extended from time to time pursuant to this Agreement and the Loan Documents;


 


(c)          the
Interest Rate Cap Agreement shall be issued by the Counterparty to Borrower and shall be pledged to Agent (on behalf of Lenders)
by Borrower in accordance with this Agreement;


 


(d)          the
Counterparty under the Interest Rate Cap Agreement shall be obligated to make a stream of payments, directly to the Clearing Account
(whether or not an Event of Default has occurred) from time to time equal to the product of (i) the notional amount of such Interest
Rate Cap Agreement multiplied by (ii) the excess, if any, of LIBOR (including any upward rounding under the definition of LIBOR)
over the Strike Price and shall provide that such payment shall be made on a monthly basis in each case not later than (after giving
effect to and assuming the passage of any cure period afforded to such Counterparty under the Interest Rate Cap Agreement, which
cure period shall not in any event be more than three Business Days) each Monthly Payment Date;


 


(e)          the
Counterparty under the Interest Rate Cap Agreement shall execute and deliver the Acknowledgment; and


 


(f)          the
Interest Rate Cap Agreement shall impose no material obligation on the beneficiary thereof (after payment of the acquisition cost)
and shall be in all material respects satisfactory in form and substance to Agent in its reasonable determination and shall satisfy
applicable Rating Agency standards and requirements, including, without limitation, provisions satisfying Rating Agencies standards,
requirements and criteria (i) that incorporate representations by the Counterparty that no withholding taxes shall apply to payments
by the Counterparty, and provide for “gross up” payments by the Counterparty for any withholding tax, (ii) whereby
the Counterparty agrees not to file or join in the filing of any petition against Borrower under the Bankruptcy Code or any other
Federal or state bankruptcy or insolvency law, and (iii) that incorporate, if the Interest Rate Cap Agreement contemplates collateral
posting by the Counterparty, a credit support annex setting forth the mechanics for collateral to be calculated and posted that
are consistent with Rating Agency standards, requirements and criteria.


 


“Key Principal(s)”
shall mean, David Bistricer, Trapeze Inc. and Clipper Realty Inc.


 


“Lease”
shall mean any lease, sublease or sub-sublease, letting, license, concession or other agreement (whether written or oral and whether
now or hereafter in effect) pursuant to which any Person is granted a possessory interest in, or right to use or occupy, all or
any portion of any space in a Property, and every modification, amendment or other agreement (whether written or oral and whether
now or hereafter in effect) relating to such lease, sublease, sub-sublease or other agreement entered into in connection with such
lease, sublease, sub-sublease or other agreement, and every guarantee of the performance and observance of the covenants, conditions
and agreements to be performed and observed by the other party thereto, whether before or after the filing by or against Borrower
of any petition for relief under the Bankruptcy Code.


 




    12


     


    

 


“Legal Requirements”
shall mean all federal, state, county, municipal and other governmental statutes, laws, rules, orders, regulations, ordinances,
judgments, decrees and injunctions of Governmental Authorities affecting the Loan, any Secondary Market Transaction with respect
to the Loan, Borrower or any 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, including, without limitation, the Securities Act, the Exchange Act, Regulation
AB, the rules and regulations promulgated pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act, zoning and
land use laws, the Americans with Disabilities Act of 1990, and all permits, licenses and authorizations and regulations relating
thereto, and all covenants, agreements, restrictions and encumbrances contained in any instruments, either of record or known to
Borrower, at any time in force affecting any Property or any part thereof, including any which may (i) require repairs, modifications
or alterations in or to any Property or any part thereof, or (ii) in any way limit the use and enjoyment thereof.


 


“Letter of
Credit” shall mean an irrevocable, unconditional, transferable (without payment of any transfer fee), clean sight
draft letter of credit acceptable to Agent and the Rating Agencies (either an evergreen letter of credit or one which does not
expire until at least thirty (30) Business Days after the Stated Maturity Date) in favor of Agent (on behalf of Lenders) and entitling
Agent to draw thereon in New York, New York, issued by a domestic Eligible Institution or the U.S. agency or branch of a foreign
Eligible Institution. If at any time the bank issuing any such Letter of Credit shall cease to be an Eligible Institution, Agent
shall have the right immediately to draw down the same in full and hold the proceeds of such draw in accordance with the applicable
provisions hereof.


 


“LIBOR”
shall mean, with respect to each Interest Period and each Interest Determination Date, the rate per annum (rounded upwards, if
necessary, to the nearest 1/1,000 of 1%) calculated by the Agent as set forth below:


 


(a)          The
rate for deposits in U.S. Dollars for a one-month period that appears on Reuters Screen LIBOR01 Page (or its equivalent) as of
11:00 a.m., London time, on such Interest Determination Date.


 


(b)          If
such rate does not appear on Reuters Screen LIBOR01 Page (or its equivalent) as of 11:00 a.m., London time, on the applicable Interest
Determination Date, the Agent shall request the principal London office of any four major reference banks in the London interbank
market selected by the Agent to provide such reference bank’s offered quotation to prime banks in the London interbank market
for deposits in United States dollars for a one-month period as of 11:00 a.m., London time, on such Interest Determination Date
in a principal amount of not less than $1,000,000 that is representative for a single transaction in the relevant market at the
relevant time. If at least two such offered quotations are so provided, LIBOR shall be the arithmetic mean of such quotations.
If fewer than two such quotations are so provided, the Agent shall request any three major banks in New York City selected by the
Agent to provide such bank’s rates for loans in U.S. Dollars to leading European banks for a one-month period as of 11:00
a.m., New York City time, on such Interest Determination Date in a principal amount not less than $1,000,000 that is representative
for a single transaction in the relevant market at the relevant time, and if at least two such rates are so provided, LIBOR shall
be the arithmetic mean of such rates.


 




    13


     


    

 


In no event shall LIBOR be less than zero.


 


“LIBOR Floor”
shall mean 0.00%.


 


“LIBOR Loan”
shall mean the Loan at such time as interest thereon accrues at a rate of interest based upon LIBOR.


 


“Lien”
shall mean any mortgage, deed of trust, lien (statutory or otherwise), pledge, hypothecation, easement, restrictive covenant, preference,
assignment, security interest, or any other encumbrance, charge or transfer of, or any agreement to enter into or create any of
the foregoing, on or affecting all or any portion of any Property or any interest therein, or any direct or indirect interest in
Borrower, including 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 in the original principal amount of Three Hundred Thirty Five Million and No/100 Dollars ($335,000,000.00)
made by Lenders to Borrower pursuant to this Agreement.


 


“Loan Documents”
shall mean, collectively, this Agreement, the Note, the Mortgage, the Assignment of Leases, the Cash Management Agreement, the
Clearing Account Agreement, the Assignment of Agreements, the Environmental Indemnity, the Assignment of Management Agreement,
the Guaranty and any other documents, agreements and instruments now or hereafter evidencing, securing or delivered to Agent (on
behalf of Lenders) and Lenders in connection with the Loan, as the same may be (and each of the foregoing defined terms shall refer
to such documents as they may be) amended, restated, replaced, supplemented or otherwise modified from time to time.


 


“Loan to Value
Ratio” shall mean the ratio, as of a particular date, in which the numerator is equal to the aggregate of the Outstanding
Principal Balance of the Loan and the denominator is equal to the Appraised Value of the Properties remaining subject to the Lien
of the Loan Documents, as determined by Agent in its sole discretion.


 


“Low Debt Yield
Period” shall commence if, as of any Calculation Date, (i) the Debt Yield is less than 5.25% or (ii) the Combined
Debt Yield is less than 4.30% and shall end if the Properties have achieved a Debt Yield of at least 5.45% and a Combined Debt
Yield of at least 4.50% for two consecutive Calculation Dates.


 


“Major Contract”
shall mean (i) any management agreement, (ii) any brokerage or leasing agreement; provided, however, a brokerage or leasing
agreement shall not be considered a Major Contract if it is (A) with a nationally or regionally recognized brokerage or leasing
company and (B) cancelable on thirty (30) days or less notice without requiring the payment of termination fees or payments of
any kind (other than paying amounts due through the date of cancellation) and without any so-called “tail” liability
for leases entered into more than six (6) months after such cancelation or termination, (iii) the Union Contract, (iv) any
cleaning, maintenance, service or other contract or agreement of any kind (other than Leases) of a material nature (materiality
for these purposes shall mean, contracts which (1) extend beyond one year (unless cancelable on thirty (30) days or less notice
without requiring the payment of termination fees or payments of any kind (other than paying amounts due through the date of cancellation)
and (2) have annual gross payment obligations of at least $500,000), in either case relating to the ownership, leasing, management,
use, operation, maintenance, repair or restoration of the Property, whether written or oral, or (v) management, brokerage, leasing,
cleaning, maintenance, service or other contract or agreement of any kind (other than Leases) that is between Borrower and an Affiliate
of Borrower.


 




    14


     


    

 


“Major Lease”
shall mean (a) with respect to non-residential Leases, any Lease which, either individually, or when taken together with any other
commercial Lease with the same Tenant or its Affiliates, and assuming the exercise of all expansion rights and all preferential
rights to lease additional space contained in such commercial Lease, (i) covers more than 15,000 rentable square feet, (ii) contains
an option or other preferential right to purchase all or any portion of any Property, (iii) is with an Affiliate of Borrower
as Tenant, except for Permitted Affiliate Residential Leases, or (iv) is entered into during the continuance of an Event of
Default or other Trigger Period, and (b) with respect to residential Leases which, either individually, or when taken together
with any other Lease with the same Tenant or its Affiliates, and assuming the exercise of all expansion rights and all preferential
rights to lease additional space contained in such residential Lease, (i) covers more than fifty (50) apartment units or (ii) contains
an option or other preferential right to purchase all or any portion of any Property.


 


“Management
Agreement” shall mean the Clipper Management Agreement or any replacement management agreement entered into by and
between Borrower and Manager in accordance with the terms of the Loan Documents, in each case, pursuant to which the Manager is
to provide management and other services with respect to a Property or the Properties.


 


“Manager”
shall mean (i) Clipper Manager or (ii) any other manager engaged in accordance with the terms and conditions of the Loan Documents.


 


“Material Adverse
Effect” shall mean the occurrence or existence of a condition or event which would (i) have a material adverse
effect on (A) the value of a Property, (B) the financial condition of Borrower, (C) the ability of Guarantor to
maintain a Net Worth (as defined in the Guaranty) of not less than the Net Worth Threshold (as defined in the Guaranty), (D) the
Underwritten Net Cash Flow or (E) the ability of Borrower or Guarantor to pay any amounts under the Loan Documents as they
become due, (ii) prevent Borrower or Guarantor from performing their respective material obligations under this Agreement
or any of the other Loan Documents, and/or (iii) prevent or materially impede or limit Agent’s or any Lender’s
ability to exercise its rights and remedies provided by the Loan Documents.


 


“Material Alteration”
shall mean any alteration affecting structural elements of the Improvements, utility or HVAC system contained in any Improvements
or the exterior of any Property, the cost of which exceeds the Alteration Threshold; provided, however, that in no event shall
(i) any Required Repairs, (ii) any tenant improvement work performed pursuant to any Lease existing on the date hereof
or entered into hereafter in accordance with the provisions of this Agreement, or (iii) alterations performed as part of a
Restoration, constitute a Material Alteration.


 




    15


     


    

 


“Maturity Date”
shall mean the Stated Maturity Date, provided that (a) in the event of the exercise by Borrower of the First Extension Option pursuant
to Section 2.7, the Maturity Date shall be the First Extended Maturity Date, (b) in the event of the exercise by Borrower
of the Second Extension Option pursuant to Section 2.7, the Maturity Date shall be the Second Extended Maturity Date, and
(c) in the event of the exercise by Borrower of the Third Extension Option pursuant to Section 2.7, the Maturity Date shall
be the Third Extended Maturity Date, or such earlier date on which the final payment of principal of the Note becomes due and payable
as herein or therein provided, whether at the 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 Governmental Authority whose laws are held by any court of competent jurisdiction to govern the
interest rate provisions of the Loan.


 


“Monthly Current
Mezzanine Debt Service Payment” shall mean, as to each Monthly Payment Date, the amount payable by Current Mezzanine
Loan Borrower on each such Monthly Payment Date pursuant to the Current Mezzanine Loan Documents (determined on the basis of the
Spread under the Current Mezzanine Loan Note plus the then applicable Strike Price or Extension Strike Price under the Current
Mezzanine Loan Note, provided, however, if the Strike Price exceeds LIBOR, then such scheduled payment of interest shall be calculated
based on the LIBOR instead of the Strike Price).


 


“Monthly Operating
Expense Budgeted Amount” shall mean the monthly amount set forth in the Approved Annual Budget for operating expenses
for the calendar month in which such Monthly Payment Date occurs; provided that management fees payable to Manager as part of the
Monthly Operating Expense Budgeted Amount shall not exceed 3% of Rents (the “Management Fee Cap”).


 


“Monthly Payment
Date” shall mean the ninth (9th) day of every calendar month occurring during the Term. The first Monthly
Payment Date shall be December 9, 2016.


 


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


 


“Mortgage”
shall mean the Consolidated, Amended and Restated Mortgage, Assignment of Leases and Rents and Security Agreement, dated as of
the date hereof and executed and delivered by Borrower; delivered as security for the Loan and encumbering the Properties owned
by Borrower, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.


 


“Multiemployer
Plan” shall mean a “multiemployer plan” (as defined in Section 3(37) or Section 4001(a)(3) of ERISA)
subject to Title IV of ERISA, (i) to which Borrower, Guarantor, or any of their ERISA Affiliates is making or accruing or has (or
has had) an obligation to make or accrue contributions, or (ii) with respect to which Borrower, Guarantor, or any of their ERISA
Affiliates could be subjected to any liability whether under Title IV of ERISA or by contract or agreement or otherwise.


 


“NRSRO”
shall mean any credit rating agency that has elected to be treated as a nationally recognized statistical rating organization for
purposes of Section 15E of the Exchange Act, without regard to whether or not such credit rating agency has been engaged by Agent
or its designees in connection with, or in anticipation of, a Securitization.


 






    16


     


    

 


“Obligations”
shall mean, collectively, Borrower’s obligations for the payment of the Debt and the performance of the Other Obligations.





 


“Officer’s
Certificate” shall mean a certificate delivered to Agent by Borrower which is signed by an authorized senior officer
of Borrower or an Affiliate.


 


“Operating
Expenses” shall mean, for any period, without duplication, all expenses actually paid or payable by Borrower during
such period in connection with the operation, management, maintenance, repair and use of the Properties, determined on an accrual
basis, and, except to the extent otherwise provided in this definition, in accordance with an Acceptable Accounting Method. Operating
Expenses specifically shall include (i) all expenses incurred for the period in question based on quarterly financial statements
delivered to Agent in accordance with Section 4.9.2 hereof, (ii) all payments required to be made pursuant to
any Operations Agreements, (iii) property management fees in an amount equal to the greater of two percent (2.0%) of Operating
Income and the management fees actually paid under the Management Agreement, (iv) administrative, payroll, security and general
expenses for the Properties, (v) the cost of utilities, inventories and fixed asset supplies consumed in the operation of
the Properties, (vi) a reasonable reserve for uncollectible accounts, (vii) costs and fees of Independent professionals
(including, without limitation, legal, accounting, consultants and other professional expenses), technical consultants, operational
experts (including quality assurance inspectors) or other third parties retained to perform services required or permitted hereunder,
(viii) association dues, (ix) computer processing charges, (x) operational equipment and other lease payments as reasonably
approved by Agent, (xi) Taxes and Other Charges (other than income taxes or Other Charges in the nature of income taxes) and insurance
premiums and (xii) all underwritten reserves required by Agent hereunder (without duplication of actual reserves collected). Notwithstanding
the foregoing, Operating Expenses shall not include (1) depreciation or amortization, (2) income taxes or Other Charges
in the nature of income taxes, (3) any expenses (including legal, accounting and other professional fees, expenses and disbursements)
incurred in connection with the making of the Loan or the sale, exchange, transfer, financing or refinancing of all or any portion
of the Properties or in connection with the recovery of Insurance Proceeds or Awards which are applied to prepay the Note, (4) Capital
Expenditures, (5) debt service and (6) any item of expense which would otherwise be considered within Operating Expenses pursuant
to the provisions above but is paid directly by any Tenant.


 


“Operating
Income” shall mean, for any period, all income of Borrower during such period from the use, ownership or operation
of the Properties, including:


 


(a)          all
amounts payable to Borrower by any Person as Rent and other amounts under Leases or other agreements relating to any Property;


 


(b)          business
interruption insurance proceeds allocable to the applicable reporting period; and


 


(c)          all
other amounts which in accordance with an Acceptable Accounting Method, are included in Borrower’s annual financial statements
as operating income attributable to the Properties.


 




    17


     


    

 


Notwithstanding the foregoing,
Operating Income shall not include (a) any Insurance Proceeds (other than business interruption and/or rental loss insurance
proceeds and only to the extent allocable to the applicable reporting period), (b) any proceeds resulting from the Transfer
of all or any portion of any Property, (c) any Rent attributable to a Lease prior to the date in which the Tenant thereunder
has taken occupancy or in which the actual payment of rent is required to commence thereunder, (d) any item of income otherwise
included in Operating Income but paid directly by any Tenant to a Person other than Borrower as an offset or deduction against
Rent payable by such Tenant, provided such item of income is for payment of an item of expense (such as payments for utilities
paid directly to a utility company) and such expense is otherwise excluded from the definition of Operating Expenses pursuant to
clause “(7)” of the definition thereof, (e) security deposits received from Tenants until forfeited
or applied, (f) any Lease Termination Payments and (g) any Rents paid by or on behalf of any Tenant under a Lease which is the
subject of any proceeding or action relating to its bankruptcy, reorganization or other arrangement pursuant to federal bankruptcy
law or any similar federal or state law or which has been adjudicated a bankrupt or insolvent unless such Lease has been assumed
by the trustee in such proceeding or action. Operating Income shall be calculated on the accrual basis of accounting and, except
to the extent otherwise provided in this definition, in accordance with an Acceptable Accounting Method.


 


“Operations
Agreements” shall mean any covenants, restrictions, easements, declarations or agreements of record relating to the
construction, operation or use of any Property, together with all amendments, modifications or supplements thereto.


 


“Other Charges”
shall mean all ground rents, maintenance charges, impositions other than Taxes and any other charges, including vault charges and
license fees for the use of vaults, chutes and similar areas adjoining any Property, now or hereafter levied or assessed or imposed
against any Property or any part thereof.


 


“Other Obligations”
shall mean (a) the performance of all obligations of Borrower contained herein; (b) the performance of each obligation
of Borrower contained in any other Loan Document; and (c) the performance of each obligation of Borrower contained in any
renewal, extension, amendment, modification, consolidation, change of, or substitution or replacement for, all or any part of this
Agreement, the Note or any other Loan Document.


 


“Outstanding
Principal Balance” shall mean, as of any date, the outstanding principal balance of the Loan.


 


“PACE Loan”
shall mean (x) any “Property-Assessed Clean Energy loan” or (y) any other indebtedness, without regard to the name
given to such indebtedness, which is (i) incurred for improvements to the Property for the purpose of increasing energy efficiency,
increasing use of renewable energy sources, resource conservation, or a combination of the foregoing, and (ii) repaid through multi-year
assessments against the Property.


 


“Patriot Act”
shall mean the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act
(USA PATRIOT ACT) of 2001, as the same was restored and amended by Uniting and Strengthening America by Fulfilling Rights and Ensuring
Effective Discipline Over Monitoring Act (USA FREEDOM Act) of 2015 and as the same may be further amended, extended, replaced or
otherwise modified from time to time, and any corresponding provisions of future laws.


 




    18


     


    

 


“Permitted
Encumbrances” shall mean, collectively, (i) the Liens and security interests created by the Loan Documents, (ii)
all encumbrances and other matters disclosed in the Title Insurance Policies, (iii) Liens, if any, for Taxes or Other Charges imposed
by any Governmental Authority not yet due or delinquent, or that are being contested in accordance with Section 4.3 hereof,
(iv) any workers’, mechanics’, judicial or other similar Liens on a Property provided that any such Lien is bonded,
discharged, or insured over pursuant to an endorsement to the Title Insurance Policy reasonably acceptable to Agent, within thirty
(30) days after Borrower first receives written notice of such Lien, (v) such other title and survey exceptions as Agent has approved
or may approve in writing in Agent’s reasonable discretion, (vi) the Current Mezzanine Loan Liens, (vii) customary utility
easements which do not impair the value of the Property and (viii) such other liens as are expressly permitted under the provisions
of the Loan Documents.


 


“Person”
shall mean any individual, corporation, partnership, limited liability company, joint venture, estate, trust, unincorporated association,
any other entity, any Governmental Authority and any fiduciary acting in such capacity on behalf of any of the foregoing.


 


“Physical Conditions
Report” shall mean, collectively, those certain Property Condition Reports, prepared by CBRE (Project Nos. PC61029310-101
and PC61029310-102) and dated as of October 19, 2016.


 


“Plan”
shall mean a plan as defined in Section 3(3) of ERISA subject to Title IV of ERISA other than a Multiemployer Plan, (i) maintained
or sponsored by Borrower, Guarantor, or any of their ERISA Affiliates or (ii) with respect to which Borrower, Guarantor, or any
of their ERISA Affiliates could be subjected to any liability whether under Title IV of ERISA or by contract or agreement or otherwise.


 


“Prepayment
Notice” shall mean a prior revocable written notice to Agent specifying the proposed Business Day on which a prepayment
of the Debt is intended to be made pursuant to Section 2.4 hereof, which date shall be no earlier than ten (10) days
after the date of such Prepayment Notice and no later than sixty (60) days after the date of such Prepayment Notice, provided that,
upon giving of at least three (3) Business Days’ prior notice to Agent, Borrower may revoke such Prepayment Notice or change
the intended date of such prepayment to any Business Day specified in such notice to Agent; provided, further, that if Borrower
delivers a Prepayment Notice and revokes such notice, Borrower shall reimburse Agent and Lenders for all out-of-pocket costs and
expenses incurred by Agent and Lenders with respect to the actions taken as a result of such revoked Prepayment Notice (including
reasonable attorneys fees).


 


“Prime Rate”
shall mean the rate of interest published in The Wall Street Journal from time to time as the “Prime Rate”.
If more than one “Prime Rate” is published in The Wall Street Journal for a day, the average of such “Prime
Rates” will be used, and such average will be rounded up to the nearest 1/100th of one percent (0.01%). If The Wall Street
Journal ceases to publish the “Prime Rate,” Agent will 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 Agent will select a comparable interest rate index.


 




    19


     


    

 


“Prime Rate
Floor” shall mean, in connection with any conversion of the Loan from a LIBOR Loan to a Prime Rate Loan, the difference
between (a) the sum of the LIBOR Floor plus the Spread, minus (b) the Prime Rate Spread; provided, however, that if such difference
is a negative number, then the Prime Rate Floor shall be zero.


 


“Prime Rate
Loan” shall mean the Loan at such time as interest thereon accrues at a rate of interest based upon the Prime Rate.


 


“Prime Rate
Spread” shall mean, in connection with any conversion of the Loan from a LIBOR Loan to a Prime Rate Loan, the difference
(expressed as the number of basis points) between (a) the sum of (i) LIBOR, determined as of the Interest Determination Date for
which LIBOR was last available, plus (ii) the Spread, minus (b) the Prime Rate as of such Interest Determination Date; provided,
however, that if such difference is a negative number, then the Prime Rate Spread shall be zero.


 


“Properties”
shall mean, collectively, the parcels of real property and Improvements now or hereafter erected or installed thereon and all personal
property owned by Borrower and encumbered by the Mortgage; together with all rights pertaining to such real property and Improvements,
and all other collateral for the Loan as more particularly described in the granting clause of the Mortgage. The Properties are
located at 50 Murray Street (aka 110-120 Church Street), New York, New York (the “110 Church Property”)
and 53 Park Place, New York, New York (the “53 Park Place Property”).


 


“Public Vehicle”
shall mean a Person whose securities are listed and traded on the New York Stock Exchange or another nationally recognized stock
exchange 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.


 


“Qualified
Lender” shall mean (x) DB or any Affiliate of DB or (y) any Person other than a natural Person that is any of the
following, provided that any such Person shall at all times satisfy the Eligibility Requirements and is not a Defaulting
Lender:


 


		(a)	a commercial 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 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 Person that is engaged in the business of commercial
real estate banking and that is: (1) an Affiliate of Lender, or (2) a Person of which a Lender is a subsidiary;



 


		(d)	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;



 




    20


     


    

 


		(e)	a fund (other than a mutual fund) which regularly invests
in or makes commercial real estate loans; or



 


		(f)	the trustee, administrator or receiver (or their respective
nominees, collateral agents or collateral trustees) of, a mortgage pool securing covered mortgage bonds issued by an eligible
German bank (Pfandbriefbanken) or by any other Person otherwise permitted to issue covered mortgage bonds (Hypothekenpfandbriefe)
under German bond law (Pfandbriefgesetz 2005, as the same may be amended or modified.



 


provided, however,
that “Qualified Lender” shall not include: (i) Borrower, (ii) the constituent members of Borrower or Guarantor,
and (iii) any Defaulting Lender (so long as such Lender remains a Defaulting Lender).


 


“Qualified
Manager” shall mean (i) Clipper Manager, (ii) Clipper Equity LLC or (iii) a Manager approved by Agent in Agent’s
sole discretion.


 


“Qualified
Transferee” shall mean a transferee for whom, prior to the Transfer, Agent shall have received: (x) evidence that
the proposed transferee (1) has never been indicted or convicted of, or pled guilty or no contest to, a felony, (2) has never been
indicted or convicted of, or pled guilty or no contest to, a Patriot Act Offense and is not on any Government List, (3) has never
been the subject of a voluntary or involuntary (to the extent the same has not been discharged) bankruptcy proceeding and (4) has
no material outstanding judgments against such proposed transferee and (y) if the proposed transferee will obtain Control of or
obtain a direct or indirect interest of 10% or more in Borrower as a result of such proposed transfer, a credit check against such
proposed transferee that is reasonably acceptable to Agent.


 


“Ratable Share”,
“Ratable” or “ratably” shall mean, with respect to any Lender, its share of
the Loan based on the proportion of the Outstanding Principal Balance advanced or held by such Lender to the total outstanding
principal amount of the Loan. The Ratable Share of each Lender on the date of this Agreement after giving effect to the funding
of the Loan on the Closing Date is set forth on Schedule IX attached hereto and made a part hereof.


 


“Rating Agencies”
shall mean any nationally-recognized statistical rating organization (e.g. Standard & Poor’s Ratings Services, Moody’s
Investor Service, Inc., Fitch, Inc., DBRS, Inc. or any successor thereto) that has been or will be engaged by Agent or its designees
in connection with, or in anticipation of, a Securitization; provided, that following a Securitization, it shall refer to
the Rating Agencies that actually rated the Securities.


 


“Rating Agency
Confirmation” shall mean a written affirmation from each of the Rating Agencies that the credit rating of the Securities
by such Rating Agency immediately prior to the occurrence of the event with respect to which such Rating Agency Confirmation is
sought will not be qualified, downgraded or withdrawn as a result of the occurrence of such event, which affirmation may be granted
or withheld in such Rating Agency’s sole and absolute discretion.


 


“Regulation
AB” shall mean Regulation AB under the Securities Act and the Exchange Act, as such Regulation may be amended from
time to time.


 




    21


     


    

 


“Regulatory
Change” shall mean, at any time hereafter, (i) any change in any Legal Requirement (including by repeal, amendment
or otherwise) or in the interpretation or application thereof by any central bank or other Governmental Authority or (ii) any new
or revised request, guidance or directive issued by any central bank or other Governmental Authority and applicable to the Agent
and Lenders.


 


“Related Loan”
shall mean a loan to an Affiliate of Borrower or Guarantor or secured by a Related Property, that is included in a Securitization
with the Loan, and any other loan that is cross-collateralized with the Loan.


 


“Related Property”
shall mean a parcel of real property, together with improvements thereon and personal property related thereto, that is “related”
within the meaning of the definition of Significant Obligor, to any Property.


 


“REMIC Trust”
shall mean a “real estate mortgage investment conduit” within the meaning of Section 860D of the Code that holds
the Note.


 


“Rent Regulation
Laws” shall mean the Emergency Tenant Protection Act of 1974, New York City Rent Stabilization Law (Chapter 4, Title
26 of the New York City Administrative Code, the New York City Rent Stabilization Code (Chapter VIII, Subtitle S, Title 9 of the
New York City Rules and Regulations), the New York City Rent and Eviction Regulations (Subchapter B, Chapter VII, Subtitle S, Title
9 of the New York City Rules and Regulations, any Legal Requirement applicable to residential rent overcharges or rent rollbacks,
harassment or mistreatment of residential tenants, any other law, rule, statute or regulation that imposes limitations on, or otherwise
regulates, rent that may be charged to residential tenants or obligations on the part of landlords to renew residential leases,
and any regulations promulgated thereunder, as each of the foregoing may have been or may hereafter be amended or replaced from
time to time.


 


“Rents”
shall mean all rents, rent equivalents, “additional rent” (i.e. pass-throughs for operating expenses, real estate tax
escalations and/or real estate tax pass-throughs, payments by Tenants on account of electrical consumption, porters’ wage
escalations, condenser water charges and tap-in fees, freight elevator and HVAC overtime charges, charges for excessive rubbish
removal and other sundry charges), moneys payable as damages (including payments by reason of the rejection of a Lease in a bankruptcy
proceeding) or in lieu of rent or rent equivalents, royalties (including all oil and gas or other mineral royalties and bonuses),
income, fees, receivables, receipts, revenues, deposits (including security, utility and other deposits), accounts, cash, issues,
profits, charges for services rendered, and other payment and consideration of whatever form or nature received by or paid to or
for the account of or benefit of Borrower, Manager (excluding management fees paid to Manager) or any of their respective agents
or employees from any and all sources arising from or attributable to each Property, including all receivables, customer obligations,
installment payment obligations and other obligations now existing or hereafter arising or created out of the lease, sublease,
license, concession or other grant of the right of the use and occupancy of each Property or rendering of services by Borrower,
Manager or any of their respective agents or employees and Insurance Proceeds, if any, from business interruption or other loss
of income insurance, but only to the extent such Insurance Proceeds are treated as business or rental interruption Insurance Proceeds
pursuant to Section 5.4(f) hereof.


 




    22


     


    

 


“Repayment
Date” shall mean the date of a prepayment of the Loan pursuant to the provisions of Section 2.4 hereof.


 


“Replacement
Interest Rate Cap Agreement” shall mean an interest rate cap agreement from an Approved Counterparty with terms that
are the same in all material respects as the terms of the Interest Rate Cap Agreement except that the same shall be effective as
of (i) in connection with a replacement pursuant to Section 2.6.3(c) following a downgrade, withdrawal or qualification
of the long-term unsecured debt rating of the Counterparty, the date required in Section 2.6 or (ii) in connection with
a replacement (or extension of the then-existing Interest Rate Cap Agreement) in connection with an extension of the Maturity Date
pursuant to Section 2.7, the date required in Section 2.7; provided that to the extent any such interest rate cap
agreement does not meet the foregoing requirements, a Replacement Interest Rate Cap Agreement shall be such interest rate cap agreement
approved in writing by Agent, and if the Loan or any portion thereof is included in a Securitization, each of the Rating Agencies
with respect thereto.


 


“Reserve Funds”
shall mean, collectively, all funds deposited by Borrower with Agent or Deposit Bank pursuant to Article 6 of this Agreement,
including, but not limited to, the Capital Expenditure Funds, the Insurance Funds, the Tax Funds, the Casualty and Condemnation
Funds, the Cash Collateral Funds and the Rollover Funds.


 


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


 


“Restoration
DSCR” shall mean, as of any date of determination, the ratio of (a) the Underwritten Net Cash Flow of the Properties,
based on Rents in place (annualized and including rental loss insurance proceeds) and expenses on a pro forma basis (and therefore
exclusive of expenses relating to such Restoration), to (b) an amount equal to the annual Debt Service.


 


“S&P”
shall mean Standard & Poor’s Ratings Group, a division of the McGraw-Hill Companies.


 


“Significant
Obligor” shall have the meaning set forth in Item 1101(k) of Regulation AB under the Securities Act.


 


“Special Taxes”
shall mean any and all present or future taxes, levies, imposts, deductions, charges or withholdings, or any liabilities with respect
thereto, including those arising after the Closing Date as a result of the adoption of or any change in law, treaty, rule, regulation,
guideline or determination of a Governmental Authority or any change in the interpretation or application thereof by a Governmental
Authority but excluding, in the case of Agent and Lenders, such taxes (including income taxes, franchise taxes and branch profit
taxes) as are imposed on or measured by Agent’s and Lenders’ net income by the United States of America or any Governmental
Authority of the jurisdiction under the laws under which Agent and any Lender is organized or maintains a lending office.


 


“Spread”
shall mean three hundred and five basis points 3.05037% per annum.


 




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“Spread Maintenance
Date” shall mean November 9, 2017, which is the first anniversary of the Closing Date.


 


“Spread Maintenance
Premium” with respect to any payment or prepayment of principal (or acceleration of the Loan) on or prior to
the Spread Maintenance Date, an amount equal to the product of the following: (A) the amount of such prepayment (or the amount
of principal so accelerated), multiplied by (B) the Spread, multiplied by (C) a fraction (expressed as a percentage) having
a numerator equal to the number of months difference between the Monthly Payment Date immediately succeeding the Spread Maintenance
Date and the date such prepayment occurs (or the last day of the Interest Period through which interest has been paid by Borrower) and
a denominator equal to twelve (12).


 


“State”
shall mean New York.


 


“Stated Maturity
Date” shall mean November 9, 2018, as the same may be extended pursuant to Section 2.7 hereof.


 


“Strike Price”
shall mean 2.00% per annum.


 


“Survey”
shall mean a survey of each Property prepared by a surveyor licensed in the State and satisfactory to Agent and the company or
companies issuing the Title Insurance Policies, and containing a certification of such surveyor satisfactory to Agent.


 


“Taxes”
shall mean (i) all real estate taxes, assessments, water rates or sewer rents (collectively, “Real Estate Taxes”)
and (ii) personal property taxes, in each case now or hereafter levied or assessed or imposed against the Property or part thereof,
together with all interest and penalties thereon. In no event shall any PACE Loan be considered a Tax for purposes of this Agreement.


 


“Tenant”
shall mean any Person obligated by contract or otherwise to pay monies (including a percentage of gross income, revenue or profits)
under any Lease now or hereafter affecting all or any part of a Property.


 


“Term”
shall mean the entire term of this Agreement, which shall expire upon repayment in full of the Debt.


 


“Title Insurance
Policies” shall mean ALTA mortgagee title insurance policies in the form reasonably acceptable to Agent issued with
respect to each Property and insuring the Lien of the Mortgage.


 


“Trigger Period”
shall commence upon (i) the occurrence of an Event of Default, (ii) the commencement of a Low Debt Yield Period or (iii) the occurrence
of a Current Mezzanine Loan Default; and shall end if, (A) with respect to a Trigger Period continuing pursuant to clause (i),
the Event of Default commencing the Trigger Period has been cured and such cure has been accepted by Agent (and no other Event
of Default is then continuing) or (B) with respect to a Trigger Period continuing due to clause (ii), the Low Debt Yield
Period has ended pursuant to the terms hereof or (C) with respect to a Trigger Period continuing due to clause (iii), receipt by
Agent of a Current Mezzanine Loan Default Revocation Notice.


 




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“TRIPRA”
shall mean the Terrorism Risk Insurance Program Reauthorization Act of 2015 or any replacement, reauthorization or extension thereof.


 


“Trustee”
shall mean any trustee holding the Loan in a Securitization.


 


“UCC”
or “Uniform Commercial Code” shall mean the Uniform Commercial Code as in effect in the State (with respect
to fixtures), the State of New York or the state in which any of the Cash Management Accounts are located, as the case may be.


 


“Underwritten
Net Cash Flow” shall mean, as of the end of any calendar quarter for which Underwritten Net Cash Flow is determined
(or ending at such other date for which Underwritten Net Cash Flow is determined), the excess of:


 


(a) the sum of: (1) annualized
actual in place base rents and monthly recoveries received by Borrower under bona fide non-residential Leases at the Properties
with Tenants in occupancy, open for business and paying full, unabated rent as of the date of such calculation, and actual percentage
rents received by Borrower under such Leases for the twelve (12) months preceding such calculation; plus (2) the GPR; plus
(3) actual net cash flow receipts received by Borrower from sources at the Properties (except as described in foregoing clauses
(1) and (2)) to the extent such receipts are recurring in nature and properly included as Operating Income for such twelve month
calculation period over 


 


(b) for the twelve (12)
month period preceding the month in which such Underwritten Net Cash Flow is calculated, the sum of Operating Expenses over such
twelve (12) month period, in each case adjusted to reflect Agent’s reasonable determination of: (i) with respect to the non-residential
portion of the Property, a vacancy factor equal to the greater of (A) the actual vacancy rate at the Properties (excluding the
area consisting of residential space), and (B) 3% of the rentable area of commercial space at the Properties; (ii) with respect
to the residential portion of the Property, a vacancy factor equal to the greater of (A) the Adjusted Actual Vacancy Rate at the
Properties, as determined by Agent, and (B) 3% of GPR; (iii) subtraction of (A) an imputed capital improvement requirement amount
equal to $0.20 per rentable square foot of commercial space at the Properties per annum (regardless of whether a reserve therefor
is required hereunder or the amount of such reserve) and (B) $373 per residential apartment at the Properties per annum; (iv) exclusion
of amounts representing non-recurring items; and (v) amounts received from (A) commercial Tenants not currently in occupancy and
not paying full, unabated rent, (B) Tenants affiliated with Borrower or Guarantor, (C) commercial Tenants in default or in bankruptcy
and (D) commercial Tenants under month-to-month Leases or Leases expiring within the forthcoming ninety (90) days. Agent’s
calculation of Underwritten Net Cash Flow shall be final absent manifest error.


 


“Union Contract”
shall mean that certain 2014 Apartment Building Agreement between Realty Advisory Board on Labor Relations Incorporated and Service
Employees International Union, Local 32BJ (“Local 32BJ”), effective April 21, 2014 to April 20, 2018.


 


“U.S. Obligations”
shall mean securities evidencing an obligation to timely pay principal and/or interest in a full and timely manner that are (i) direct
obligations of the United States of America for the payment of which its full faith and credit is pledged, and (ii) not subject
to prepayment, call or early redemption.


 




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Section
1.2           Index of Other Definitions. 
The following terms are defined in the sections or Loan Documents as indicated below:


 


“421-g Tax Benefits” - 3.1.36


“Acceptable SMBC Credit Support Party” - 1.1
(Definition of “Approved Counterparty”)


“Accounts” - 6.1


“Act” - Schedule V


“Acceptable Blanket Policy” - 5.1.1(c)


“Administrative Agent Advances” – 11.10(a)


“Agreement” - Introductory Paragraph


“Applicable Taxes” - 10.24


“Approved Annual Budget” - 4.9.5

“Approved Extraordinary Operating Expense” - 4.9.6


“Approved Monthly BI Expenses” - 5.4(f)


“Assignee” – 10.28


“Assignment and Acceptance” – 10.28(a)


“Available Cash” - 6.9.1


“Bail-In Action” – 10.29


“Bail-In Legislation” – 10.29


“Borrower” - Introductory Paragraph


“Borrower Provided Information” - 9.2


“Borrower’s Recourse Liabilities” - 10.1


“Breakage Costs” - 2.2.5


“Capital Expenditure Account” - 6.5.1


“Capital Expenditure Funds” - 6.5.1


“Cash Collateral Account” - 6.8


“Cash Collateral Funds” - 6.8


“Cash Management Accounts” - 6.10


“Casualty” - 5.2


“Casualty and Condemnation Account” - 6.7


“Casualty and Condemnation Funds” - 6.7


“Casualty Consultant” - 5.4(b)(iii)


“Casualty Retainage” - 5.4(b)(iv)


“Cause” - Schedule V


“Clearing Account” - 6.1


“Clearing Bank” - 6.1


“Committee” - Schedule V


“Condemnation Proceeds” - 5.4(b)


“Contributing Employer” – 4.31(e)


“Counterparty Opinion” - 2.6.3


“DB” - Introductory Paragraph


“Debt Service Account” - Cash Management Agreement


“Decision Notice” – 10.27(e)


“DHCR” – 4.33


“Disclosure Document” - 9.2(a)


 




    26


     


    

 


“Easements” - 3.1.11


“EEA Financial Institution” – 10.29


“EEA Member Country” – 10.29


“EEA Resolution Authority” – 10.29


“Embargoed Person” - 4.32(c)


“Equipment” - Mortgage


“ERISA” - 4.31


“EU Bail-In Legislation Schedule” – 10.29


“Event of Default” - 8.1


“Exchange Act” - 9.2(a)


“Exchange Act Filing” - 9.1(d)


“Extraordinary Operating Expense” - 4.9.6


“Final Order” – 4.33


“First Extended Maturity Date” - 2.7.1


“First Extension Notice” - 2.7.1


“First Extension Option” - 2.7.1


“Government Lists” - 4.32(b)


“Improvements” - Mortgage


“Increased Costs” - 2.9.1


“Indemnified Liabilities” - 4.30


“Independent Director” - Schedule V


“Independent Manager” - Schedule V


“Initial Interest Period” - 2.3.1


“Insurance Account” - 6.4.1


“Insurance Funds” - 6.4.1


“Insurance Premiums” - 5.1.1(b)


“Insurance Proceeds” - 5.4(b)


“Intellectual Property” - 3.1.33


“Interest Period” - 2.3.2


“Interest Shortfall” - 2.4.5


“Key Principal Estate” - 7.2(g)(v)


“Lease Termination Payments” - 6.6.1(b)(i)


“Lender” - Introductory Paragraph


“Lender Group” - 9.2(b)


“Liabilities” - 9.2(b)


“Licenses” - 3.1.9


“Nationally Recognized Service Company” - Schedule
V


“Net Proceeds” - 5.4(b)


“Net Proceeds Deficiency” - 5.4(b)(vi)


“Note” - 2.1.3


“Notice” - 10.6


“OECD” – 1.1 (Definition of “Qualified
Lender”)


“OFAC” - 4.32(b)


“Other Taxes” - 2.9.3


“Participant Register” – 10.28(e)


“Patriot Act Offense” - 4.32(b)


“Permitted Affiliate Residential Leases” - 4.11.1


“Permitted Equipment Financing” - 4.21





 




    27


     


    

 


“Permitted Indebtedness” - 4.21


“Permitted Investments” - Cash Management Agreement


“Permitted Transfer” - 7.2


“PML” - 5.1.1(a)


“Policies” - 5.1.1(b)


“Qualified Carrier” - 5.1.1(i)


“Radius” - 5.1.1(a)


“Rate Cap Collateral” - 2.6.2


“Register” – 10.28(d)


“Required Records” - 4.9.7


“Required Repairs” - 6.2.1


“Review Waiver” - 10.3(b)


“Rollover Account” - 6.6.1(b)


“Rollover Funds” - 6.6.1(a)


“RPTL” - 3.1.36         


“RPTL Tax Benefit Law” - 3.1.36


“Second Extended Maturity Date” - 2.7.1


“Second Extension Notice” - 2.7.1


“Second Extension Option” - 2.7.1


“Secondary Market Transaction” - 9.1(a)


“Securities” - 9.1(a)


“Securities Act” - 9.2(a)


“Securitization” - 9.1(a)


“Servicer” - 10.21


“Servicing Agreement” - 10.21


“Sole Member” - Schedule V


“Special Member” - Schedule V


“Special Purpose Bankruptcy Remote Entity” -
Schedule V


“Specific SPE Covenants” - 10.1


“Springing Recourse Event” - 10.1


“Succeeding Interest Period” - 2.4.5


“Tax Account” - 6.3.1


“Tax Funds” - 6.3.1


“Terrorism Premium Cap” - 5.1.1(e)


“Third Extended Maturity Date” - 2.7.1


“Third Extension Notice” - 2.7.1


“Third Extension Option” - 2.7.1


“Transfer” - 4.2


“Transfer and Assumption” - 7.1


“Transferee Borrower” - 7.1


“Underwriter Group” - 9.2(b)


“Updated Information” - 9.1(b)(i)


“Write-Down and Conversion Powers” – 10.29


 




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Section
1.3           Principles of Construction. 
All references to sections and schedules are to sections and schedules in or to this Agreement unless otherwise specified. Unless
otherwise specified, the words “hereof,” “herein” and “hereunder” and words of similar import
when used in this Agreement or any other Loan Document shall refer to this Agreement or such other Loan Document as a whole and
not to any particular provision hereof or thereof. When used in this Agreement or any other Loan Document, the word “including”
shall mean “including but not limited to”. 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
2


 


THE
LOAN


 


Section
2.1           The Loan. 


 


2.1.1        Agreement
to Lend and Borrow. Subject to and upon the terms and conditions set forth herein, Lenders shall make the Loan to Borrower
and Borrower shall accept the Loan from Lenders on the Closing Date.


 


2.1.2        Single
Disbursement to Borrower.  Borrower shall receive only one borrowing hereunder in respect of the Loan and any amount borrowed
and repaid hereunder in respect of the Loan may not be reborrowed.


 


2.1.3        The
Note.  The Loan shall be evidenced by that certain Consolidated, Amended and Restated Promissory Note of even date herewith,
in the stated principal amount of Three Hundred Thirty Five Million and No/100 Dollars ($335,000,000.00) executed by Borrower and
payable to the order of Lenders in evidence of the Loan (as the same may hereafter be amended, supplemented, restated, increased,
extended or consolidated from time to time, the “Note”) and shall be repaid in accordance with the terms
of this Agreement, the Note and the other Loan Documents.


 


2.1.4        Use
of Proceeds.  Borrower shall use proceeds of the Loan (together with the Current Mezzanine Loan) to (i) pay and discharge
any existing loans relating to the Property, (ii) pay all past-due Taxes, Insurance Premiums and Other Charges, if any, in
respect of the Properties, (iii) make deposits of the Reserve Funds, (iv) pay costs and expenses incurred in connection
with the closing of the Loan and the Current Mezzanine Loan, and (v) to the extent any proceeds remain after satisfying clauses
(i) through (iv) above, for such lawful purpose as Borrower shall designate.


 


Section
2.2           Interest Rate. 


 


2.2.1       Interest
Rate. 


 


(a)          Interest
on the Outstanding Principal Balance shall accrue throughout the Term at the Interest Rate.


 


(b)          Subject
to the terms and conditions hereof, the Loan shall be a LIBOR Loan. In the event that Agent shall have determined (which determination
shall be conclusive and binding upon Borrower absent manifest error) that by reason of circumstances affecting the interbank Eurodollar
market, adequate and reasonable means do not exist for ascertaining LIBOR, then Agent shall forthwith give notice by telephone
of such determination, confirmed in writing, to Borrower at least one (1) day prior to the next succeeding Interest Determination
Date. If such notice is given, the Loan shall be converted, as of the first day of the next succeeding Interest Period, to a Prime
Rate Loan. Notwithstanding any provision of this Agreement to the contrary, in no event shall Borrower have the right to convert
a LIBOR Loan to a Prime Rate Loan.


 




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(c)          If,
pursuant to the terms hereof, the Loan has been converted to a Prime Rate Loan and Agent shall determine (which determination shall
be conclusive and binding upon Borrower absent manifest error) that the event(s) or circumstance(s) which resulted in such conversion
shall no longer be applicable, Agent shall give notice by telephone of such determination, confirmed in writing, to Borrower at
least one (1) day prior to the next succeeding Interest Determination Date. If such notice is given, the Loan shall be converted,
as of the first day of the next succeeding Interest Period, to a LIBOR Loan. Notwithstanding any provision of this Agreement to
the contrary, in no event shall Borrower have the right to convert a Prime Rate Loan to a LIBOR Loan.


 


(d)          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 maintain a LIBOR Loan as contemplated hereunder, (i) the obligation of such Lender hereunder
to make or maintain a LIBOR Loan or to convert a Prime Rate Loan to a LIBOR Loan shall be canceled forthwith and (ii) any outstanding
LIBOR Loan shall be converted automatically to a Prime Rate Loan on the first day of the next succeeding Interest Period, or upon
such earlier date as may be required by law. Borrower hereby agrees to promptly pay to such Lender, upon demand, any additional
amounts necessary to compensate such Lender for any costs incurred by such Lender in making any conversion in accordance with
this Agreement, including without limitation, any interest or fees payable by such Lender to lenders of funds obtained by it in
order to make or maintain the LIBOR Loan hereunder. Such Lender’s notice of such costs, as certified to Borrower, shall
be conclusive absent manifest error.


 


2.2.2        Default
Rate.  In the event that, and for so long as, any Event of Default shall have occurred and be continuing, the Outstanding
Principal Balance and, to the extent not prohibited by applicable law, all other portions of the Debt, shall accrue interest at
the Default Rate, calculated from the date such payment was due or such Default shall have occurred without regard to any grace
or cure periods contained herein. Interest at the Default Rate shall be paid immediately upon demand, which demand may be made
as frequently as Agent shall elect, to the extent not prohibited by applicable law.


 


2.2.3        Interest
Calculation.  Interest on the Outstanding Principal Balance shall be calculated by multiplying (A) the actual number
of days elapsed in the period for which the calculation is being made by (B) a daily rate based on a three hundred sixty (360)
day year (that is, the Interest Rate expressed as an annual rate divided by 360) by (C) the Outstanding Principal Balance.
The accrual period for calculating interest due on each Monthly Payment Date shall be the Interest Period in which such Monthly
Payment Date occurs.


 




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2.2.4        Usury
Savings.  This Agreement and the other Loan Documents are subject to the express condition that at no time shall Borrower
be required to pay interest on the Outstanding Principal Balance at a rate which could subject Agent or any 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 Outstanding Principal Balance at a rate in
excess of the Maximum Legal Rate, the Interest Rate 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 Agent or any 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 from time to time in effect and applicable to the Loan for so long as the Loan is outstanding.


 


2.2.5        Breakage
Indemnity. Borrower shall indemnify Agent for its own account or for the account of the applicable Lender(s) (as the case
may be) against any loss or expense which Agent or any Lender may actually sustain or incur in liquidating or redeploying deposits
from third parties acquired to effect or maintain the Loan or any part thereof as a consequence of (i) any payment or prepayment
of the Loan or any portion thereof made on a date other than a Monthly Payment Date and (ii) any default in payment or prepayment
of the Outstanding Principal Balance or any part thereof or interest accrued thereon, as and when due and payable (at the date
thereof or otherwise, and whether by acceleration or otherwise) (collectively, “Breakage Costs”). Agent
shall deliver to Borrower a statement for any such sums which it (or any Lender) is entitled to receive pursuant to this Section 2.2.5,
which statement shall be binding and conclusive absent manifest error. Borrower’s obligations under this Section 2.2.5
are in addition to Borrower’s obligations to pay any Spread Maintenance Premium applicable to a payment or prepayment of
the Loan.


 


Section
2.3           Loan Payments. 


 


2.3.1        Payments.
 On the date hereof, Borrower shall pay interest on the unpaid Outstanding Principal Balance from the date hereof through and
including November 14, 2016 (the “Initial Interest Period”). On December 9, 2016 and each Monthly
Payment Date thereafter during the Term, Borrower shall pay interest on the unpaid Outstanding Principal Balance accruing through
the last day of the Interest Period in which such Monthly Payment Date occurs. Borrower shall also pay to Agent all amounts required
in respect of Reserve Funds as set forth in Article 6 hereof.


 


2.3.2        Payments
Generally.  After the Initial Interest Period, each interest accrual period thereafter (each, an “Interest
Period”) shall commence on the fifteenth (15th) calendar day of a calendar month and ending on (and including)
the fourteenth (14th) calendar day of the following calendar month; provided, that in the event that the Agent elects
to reset LIBOR as provided in the definition of the term “Interest Determination Date” (i) the Interest Period then
in effect shall end on (and include) the calendar day prior to the Securitization Date and (ii) a new Interest Period shall commence
on the Securitization Date and shall end on (and include) the next fourteenth (14th) day of a calendar month to occur.
For purposes of making payments hereunder, but not for purposes of calculating interest accrual 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. Agent
shall have the right from time to time, in its sole discretion, upon not less than ten (10) days prior written notice to Borrower,
to change the Monthly Payment Date to a different calendar day and, if requested by Agent, Borrower shall promptly execute an amendment
to this Agreement to evidence such change; provided, however, that if Agent shall have elected to change the Monthly Payment Date
as aforesaid, Agent shall have the option, but not the obligation, to adjust the Interest Period and the Interest Determination
Date accordingly. All amounts due pursuant to this Agreement and the other Loan Documents shall be payable without setoff, counterclaim,
defense or any other deduction whatsoever.


 




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2.3.3       Payment
on Maturity Date.  Borrower shall pay to Agent on the Maturity Date the Outstanding Principal Balance, all accrued and
unpaid interest and all other amounts due hereunder and under the Note, the Mortgage and the other Loan Documents.


 


2.3.4       Late
Payment Charge.  If any principal, interest or any other sum due under the Loan Documents (other than the Outstanding Principal
Balance due and payable on the Maturity Date) is not paid by Borrower on the date on which it is due, Borrower shall pay to Agent
upon demand an amount equal to the lesser of four percent (4%) of such unpaid sum or the maximum amount permitted by applicable
law in order to defray the expense incurred by Agent in handling and processing such delinquent payment and to compensate Lenders
for the loss of the use of such delinquent payment. Any such amount shall be secured by the Mortgage and the other Loan Documents
to the extent permitted by law.


 


2.3.5       Method
and Place of Payment.


 


(a)          Except
as otherwise specifically provided herein or any other Loan Document, all payments and prepayments under this Agreement and the
Note shall be made to Agent not later than 3:00 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 Agent’s office or at such other place as Agent shall from
time to time designate, and any funds received by Agent after such time shall, for all purposes hereof, be deemed to have been
paid on the next succeeding Business Day.


 


(b)          Whenever
any payment to be made hereunder or under any other Loan Document shall be stated to be due on a day which is not a Business Day,
the due date thereof shall be the immediately preceding Business Day.


 


(c)          All
payments required to be made by Borrower hereunder or under the Note or the other Loan Documents shall be made irrespective of,
and without deduction for, any setoff, claim or counterclaim and shall be made irrespective of any defense thereto.


 


2.3.6       Forwarding
of Payments by Agent. Except as otherwise agreed by Agent and Lender, each payment received by Agent under this Agreement
or the Note for the account of any Lender shall be paid by Agent promptly to such Lender, in immediately available funds, for the
Loan or other portion of the Debt in respect of which such payment is made.


 


2.3.7       Ratable
Shares/Pro Rata Treatment of Payments. Except to the extent otherwise provided herein: (a) the Loan shall be
allocated Ratably among the Lenders according to the amounts of their Ratable Share; (b) each payment or prepayment of principal
of the Loan by Borrower (including those made from Net Proceeds) shall be made Ratably for the account of the Lender; (c) each
payment of interest on the Loan by Borrower shall be made for the Ratable account of Lender and (d) all losses, costs and
expenses suffered by the Agent and/or the Lenders relating to the Loan, in each case, shall be allocated by Agent pro rata
among the Lenders in accordance with their respective Ratable Shares.


 




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Section
2.4           Prepayments. 


 


2.4.1       Prepayments.
 Except as otherwise provided herein, Borrower shall not have the right to prepay the Loan in whole or in part prior to the
Stated Maturity Date.


 


2.4.2       Voluntary
Prepayments. Borrower shall have the right, only on a Business Day, to prepay the Outstanding Principal Balance in whole,
but not in part (except for partial prepayments pursuant to clauses (b) and/or (f) of Section 2.7.1) upon satisfaction of
the following conditions:


 


(a)          Borrower
shall deliver to Agent a Prepayment Notice; and


 


(b)          Borrower
shall comply with the provisions set forth in Section 2.4.5; provided that if such prepayment is made on or after the
Spread Maintenance Date, such prepayment shall be without any prepayment penalties set forth in clause (iv) of Section 2.4.5(a).


 


2.4.3       Mandatory
Prepayments.  If Agent is not obligated to make Net Proceeds available to Borrower for Restoration and determines not to
make any such Net Proceeds available to Borrower for Restoration, on the next occurring Monthly Payment Date following the date
on which (a) Agent actually receives any Net Proceeds, and (b) Agent has determined that such Net Proceeds shall be applied
against the Debt, Borrower shall prepay, or authorize Agent to apply Net Proceeds as a prepayment of, the Debt in an amount equal
to one hundred percent (100%) of such Net Proceeds. Except during an Event of Default, such Net Proceeds shall be applied by Agent
as follows in the following order of priority: First, to any other amounts (other than principal and interest) then due
and payable under the Loan Documents, including any costs and expenses of Agent and Lenders in connection with such prepayment);
Second; accrued and unpaid interest at the Interest Rate; and Third, to the Outstanding Principal Balance. Notwithstanding
anything herein to the contrary, so long as no Event of Default is continuing, no Spread Maintenance Premium or any other prepayment
premium, penalty or fee shall be due in connection with any prepayment made pursuant to this Section 2.4.3. In no event
shall any Spread Maintenance Premium be due in connection with any prepayment with Net Proceeds or pursuant to Section 5.4(c) made
after the Spread Maintenance Date. Any partial principal prepayment under this Section 2.4.3 shall be applied to the
last payments of principal due under the Loan.


 


2.4.4       Prepayments
After Default. If, during the continuance of an Event of Default, payment of all or any part of the Debt is tendered by
Borrower and accepted by Agent or is otherwise recovered by Agent (including through application of any Reserve Funds), such tender
or recovery shall be deemed to be a voluntary prepayment by Borrower in violation of the prohibition against prepayment set forth
in Section 2.4.1 hereof, and Borrower shall pay, as part of the Debt, all of: (i) all accrued interest calculated at the
Interest Rate on the amount of principal being prepaid through and including the date of such prepayment together with an amount
equal to the interest that would have accrued at the Interest Rate on the amount of principal being prepaid through the end of
the Interest Period in which such prepayment occurs, notwithstanding that such Interest Period extends beyond the date of prepayment,
(ii) the Interest Shortfall, if applicable, with respect to the amount prepaid; (iii) Breakage Costs, if any, without
duplication of any sums paid pursuant to the preceding clauses (i) and (ii), and (iv) an amount equal to the Spread Maintenance
Premium (if made before the Spread Maintenance Date).


 




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2.4.5       Prepayment/Repayment
Conditions. 


 


(a)          On
the date on which a prepayment, voluntary or mandatory, is made under the Note or as required under this Agreement, which date
must be a Business Day, Borrower shall pay to Agent:


 


(i)          all
accrued and unpaid interest calculated at the Interest Rate on the amount of principal being prepaid through and including the
Repayment Date together with an amount equal to the interest that would have accrued at the Interest Rate on the amount of principal
being prepaid through the end of the Interest Period in which such prepayment occurs, notwithstanding that such Interest Period
extends beyond the date of prepayment;


 


(ii)         if
such prepayment is made during the period from and including the first day after a Monthly Payment Date through and including the
last day of the Interest Period in which such Monthly Payment Date occurs, all interest on the principal amount being prepaid which
would have accrued from the first day of the Interest Period immediately following the Interest Period in which the prepayment
occurs (the “Succeeding Interest Period”) through and including the end of the Succeeding Interest Period,
calculated at (A) the Interest Rate if such prepayment occurs on or after the Interest Determination Date for the Succeeding
Interest Period or (B) the Assumed Note Rate if such prepayment occurs before the Interest Determination Date for the Succeeding
Interest Period (the “Interest Shortfall”);


 


(iii)        Breakage
Costs, if any, without duplication of any sums paid pursuant to the preceding clauses (i) and (ii);


 


(iv)        the
Spread Maintenance Premium applicable thereto (if such prepayment occurs on or prior to the Spread Maintenance Date); and


 


(v)         all
other sums, then due under the Note, this Agreement, the Mortgage, and the other Loan Documents.


 


(b)          If
the Interest Shortfall was calculated based upon the Assumed Note Rate, upon determination of LIBOR on the Interest Determination
Date for the Succeeding Interest Period, (i) if the Interest Rate for such Succeeding Interest Period is less than the Assumed
Note Rate, Agent shall promptly refund to Borrower the amount of the Interest Shortfall paid, calculated at a rate equal to the
difference between the Assumed Note Rate and the Interest Rate for such Interest Period, or (ii) if the Interest Rate is greater
than the Assumed Note Rate, Borrower shall promptly (and in no event later than the ninth (9th) day of the following month) pay
Agent the amount of such additional Interest Shortfall calculated at a rate equal to the amount by which Interest Rate exceeds
the Assumed Note Rate.


 


(c)          Without
duplication of any amounts paid by Borrower pursuant to the foregoing clause (a), Borrower shall pay all reasonable costs
and expenses of Agent and Lenders incurred in connection with the repayment or prepayment (including without limitation, any costs
and expenses associated with a release of the Lien of the Mortgage as set forth in Section 2.5 below and reasonable
attorneys’ fees and expenses).


 




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Section
2.5           Release Upon Payment in Full.


 


2.5.1        Release
of Properties. Agent shall, upon the written request and at the expense of Borrower, upon payment in full of the Debt in
accordance with the terms and provisions of the Loan Documents, release the Lien of the Mortgage. Agent shall deliver to Borrower
on the Repayment Date a release of Lien (and related Loan Documents) executed by Agent. Such release shall be in a form appropriate
in the jurisdiction in which the Property is located and contain standard provisions protecting the rights of the releasing lender.
Borrower shall pay all costs, taxes and expenses associated with the release of the Lien of the Mortgage, including Agent’s
reasonable attorneys’ fees.


 


2.5.2        Assignment
of Mortgage Lien. Notwithstanding anything to the contrary in this Article 2, upon the request of Borrower, and in lieu
of releasing the Lien of the Mortgage, Agent shall take the actions with respect to the Mortgage in accordance with, and subject
to, the terms and conditions set forth in Section 15.01(f) of the Mortgage.


 


Section
2.6           Interest Rate Cap Agreement.


 


2.6.1        Interest
Rate Cap Agreement. Prior to or contemporaneously with the Closing Date, Borrower shall have obtained, and thereafter maintain
in effect, the Interest Rate Cap Agreement, which shall have a term expiring no earlier than the last day of the Interest Period
in which the Stated Maturity Date occurs and have a notional amount which shall not at any time be less than the Outstanding Principal
Balance. The Interest Rate Cap Agreement shall have a strike rate equal to the Strike Price.


 


2.6.2        Pledge
and Collateral Assignment.  As security for the full and punctual payment and performance of the Obligations when due (whether
upon stated maturity, by acceleration, early termination or otherwise), Borrower, as pledgor, hereby pledges, assigns, hypothecates,
transfers and delivers to Agent (on behalf of Lenders) as collateral and hereby grant to Agent (on behalf of Lenders) a continuing
first priority lien on and security interest in, to and under all of the following whether now owned or hereafter acquired and
whether now existing or hereafter arising (the “Rate Cap Collateral”): all of the right, title and interest
of Borrower in and to (i) the Interest Rate Cap Agreement; (ii) all payments, distributions, disbursements or proceeds
due, owing, payable or required to be delivered to Borrower in respect of the Interest Rate Cap Agreement or arising out of the
Interest Rate Cap Agreement, whether as contractual obligations, damages or otherwise; and (iii) all of Borrower’s claims,
rights, powers, privileges, authority, options, security interests, liens and remedies, if any, under or arising out of the Interest
Rate Cap Agreement, in each case including all accessions and additions to, substitutions for and replacements, products and proceeds
of any or all of the foregoing.


 




    35


     


    

 


2.6.3       Covenants.


 


(a)          Borrower
shall comply in all material respects with all of its obligations under the terms and provisions of the Interest Rate Cap Agreement.
All amounts paid by the Counterparty under the Interest Rate Cap Agreement to Borrower or Agent shall be deposited immediately
into the Clearing Account pursuant to Section 6.1. Subject to the terms hereof, provided no Event of Default has occurred
and is continuing, Borrower shall be entitled to exercise all rights, powers and privileges of Borrower under, and to control the
prosecution of all claims with respect to, the Interest Rate Cap Agreement and the other Rate Cap Collateral. Borrower shall take
all actions reasonably requested by Agent to enforce Borrower’s rights under the Interest Rate Cap Agreement in the event
of a default by the Counterparty thereunder and shall not waive, amend or otherwise modify any of its rights thereunder in any
material respect.


 


(b)          Borrower
shall in all material respects defend Agent’s and Lenders’ right, title and interest in and to the Rate Cap Collateral
pledged by Borrower pursuant hereto or in which it has granted a security interest pursuant hereto against the claims and demands
of all other Persons, except those claiming by, through or under Agent (on behalf of Lenders).


 


(c)          In
the event of any downgrade, withdrawal or qualification of the rating of the Counterparty such that it ceases to qualify as an
“Approved Counterparty”, Borrower shall replace the Interest Rate Cap Agreement with a Replacement Interest Rate Cap
Agreement not later than ten (10) Business Days following receipt of notice from Agent, Servicer or any other Person of such downgrade,
withdrawal or qualification.


 


(d)          In
the event that Borrower fails to purchase and deliver to Agent the Interest Rate Cap Agreement as and when required hereunder,
Agent may purchase the Interest Rate Cap Agreement and the out-of-pocket cost incurred by Agent in purchasing the Interest Rate
Cap Agreement shall be paid by Borrower to Agent with interest thereon at the Default Rate from the date such cost was incurred
by Agent until such cost is paid by Borrower to Agent.


 


(e)          Borrower
shall not sell, assign, or otherwise dispose of, or mortgage, pledge or grant a security interest in, any of the Rate Cap Collateral
or any interest therein, and any sale, assignment, mortgage, pledge or security interest whatsoever made in violation of this covenant
shall be a nullity and of no force and effect, and upon demand of Agent, shall forthwith be cancelled or satisfied by an appropriate
instrument in writing.


 


(f)          Borrower
shall not (i) without the prior written consent of Agent, which consent shall not be unreasonably withheld, modify, amend
or supplement the terms of the Interest Rate Cap Agreement, (ii) without the prior written consent of Agent, which consent
shall not be unreasonably withheld, except in accordance with the terms of the Interest Rate Cap Agreement, cause the termination
of the Interest Rate Cap Agreement prior to its stated maturity date, (iii) without the prior written consent of Agent, which
consent shall not be unreasonably withheld, except as aforesaid, waive or release any obligation of the Counterparty (or any successor
or substitute party to the Interest Rate Cap Agreement) under the Interest Rate Cap Agreement, (iv) without the prior written consent
of Agent, which consent shall not be unreasonably withheld, consent or agree to any act or omission to act on the part of the Counterparty
(or any successor or substitute party to the Interest Rate Cap Agreement) which, without such consent or agreement, would constitute
a default under the Interest Rate Cap Agreement, (v) fail to exercise promptly and diligently each and every material right which
it may have under the Interest Rate Cap Agreement, (vi) take or intentionally omit to take any action or intentionally suffer
or permit any action to be omitted or taken, the taking or omission of which would result in any right of offset against sums payable
under the Interest Rate Cap Agreement or any defense by the Counterparty (or any successor or substitute party to the Interest
Rate Cap Agreement) to payment or (vii) fail to give prompt notice to Agent of any notice of default given by or to Borrower
under or with respect to the Interest Rate Cap Agreement, together with a complete copy of such notice. If Borrower shall have
received written notice that the Securitization shall have occurred, no consent by Agent provided for in this Section 2.6.3
(f) shall be given by Agent unless Agent shall have received a Rating Agency Confirmation.


 




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(g)          In
connection with an Interest Rate Cap Agreement, within ten (10) days after execution of the Interest Rate Cap Agreement, Borrower
shall obtain and deliver to Agent an opinion of counsel from counsel (which counsel may be in-house counsel for the Counterparty)
for the Counterparty upon which Agent and its successors and assigns may rely (the “Counterparty Opinion”),
under New York law and, if the Counterparty is a non-U.S. entity, the applicable foreign law, which shall provide in relevant part,
that: (i) the Counterparty is duly organized, validly existing, and in good standing under the laws of its jurisdiction of
incorporation and has the organizational power and authority to execute and deliver, and to perform its obligations under, the
Interest Rate Cap Agreement; (ii) the execution and delivery of the Interest Rate Cap Agreement by the Counterparty, and any
other agreement which the 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 Counterparty
of the Interest Rate Cap Agreement, and any other agreement which the 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 Cap Agreement, and any other agreement
which the Counterparty has executed and delivered pursuant thereto, has been duly executed and delivered by the Counterparty and
constitutes the legal, valid and binding obligation of the Counterparty, enforceable against the 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).


 


2.6.4       Powers
of Borrower Prior to an Event of Default. Subject to the provisions of Section 2.6.3(a), provided no Event of Default
has occurred and is continuing, Borrower shall be entitled to exercise all rights, powers and privileges of Borrower under, and
to control the prosecution of all claims with respect to, the Interest Rate Cap Agreement and the other Rate Cap Collateral.


 


2.6.5       Representations
and Warranties. Borrower hereby covenants with, and represents and warrants to, Agent and Lenders as follows:


 


(a)          The
Interest Rate Cap Agreement constitutes the legal, valid and binding obligation of Borrower, enforceable against Borrower in accordance
with its 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).


 




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(b)          The
Rate Cap Collateral is free and clear of all claims or security interests of every nature whatsoever, except such as are created
pursuant to this Agreement and the other Loan Documents, and Borrower has the right to pledge and grant a security interest in
the same as herein provided without the consent of any other Person other than any such consent that has been obtained and is in
full force and effect.


 


(c)          The
Rate Cap Collateral has been duly and validly pledged hereunder. All consents and approvals required to be obtained by Borrower
for the consummation of the transactions contemplated by this Agreement have been obtained.


 


(d)          Giving
effect to the aforesaid grant and assignment to Agent (on behalf of Lenders), Agent (on behalf of Lenders) has, as of the date
of this Agreement, and as to Rate Cap Collateral acquired from time to time after such date, shall have, a valid, and upon proper
filing, perfected and continuing first priority lien upon and security interest in the Rate Cap Collateral; provided that no representation
or warranty is made with respect to the perfected status of the security interest of Agent (on behalf of Lenders) in the proceeds
of Rate Cap Collateral consisting of “cash proceeds” or “non-cash proceeds” as defined in the UCC except
if, and to the extent, the provisions of Section 9-306 of the UCC shall be complied with.


 


(e)          Except
for financing statements filed or to be filed in favor of Agent (on behalf of Lenders) as secured party, there are no financing
statements under the UCC covering any or all of the Rate Cap Collateral and Borrower shall not, without the prior written consent
of Agent, until payment in full of all of the Obligations, execute and file in any public office, any enforceable financing statement
or statements covering any or all of the Rate Cap Collateral, except financing statements filed or to be filed in favor of Agent
(on behalf of Lenders) as secured party.


 


2.6.6       Payments.
If Borrower at any time shall be entitled to receive any payments with respect to the Interest Rate Cap Agreement, such amounts
shall, immediately upon becoming payable to Borrower, be deposited by Counterparty into the Clearing Account.


 


2.6.7       Remedies.
Subject to the provisions of the Interest Rate Cap Agreement, if an Event of Default shall occur and then be continuing:


 


(a)          Agent,
without obligation to resort to any other security, right or remedy granted under any other agreement or instrument, shall have
the right to, in addition to all rights, powers and remedies of a secured party pursuant to the UCC, at any time and from time
to time, sell, resell, assign and deliver, in its sole discretion, any or all of the Rate Cap Collateral (in one or more parcels
and at the same or different times) and all right, title and interest, claim and demand therein and right of redemption thereof,
at public or private sale, for cash, upon credit or for future delivery, and in connection therewith Agent may grant options and
may impose reasonable conditions such as requiring any purchaser to represent that any “securities” constituting any
part of the Rate Cap Collateral are being purchased for investment only, Borrower hereby waiving and releasing any and all equity
or right of redemption to the fullest extent permitted by the UCC or applicable law. If all or any of the Rate Cap Collateral is
sold by Agent upon credit or for future delivery, Agent shall not be liable for the failure of the purchaser to purchase or pay
for the same and, in the event of any such failure, Agent may resell such Rate Cap Collateral. It is expressly agreed that Agent
may exercise its rights with respect to less than all of the Rate Cap Collateral, leaving unexercised its rights with respect to
the remainder of the Rate Cap Collateral, provided, however, that such partial exercise shall in no way restrict or jeopardize
Agent’s right to exercise its rights with respect to all or any other portion of the Rate Cap Collateral at a later time
or times.


 




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(b)          Agent
may exercise, either by itself or by its nominee or designee, in the name of Borrower, all of Agent’s (on behalf of Lenders)
rights, powers and remedies in respect of the Rate Cap Collateral, hereunder and under law.


 


(c)          Borrower
hereby irrevocably, in the name of Borrower or otherwise, authorizes and empowers Agent and assigns and transfers unto Agent, and
constitutes and appoints Agent its true and lawful attorney-in-fact, and as its agent, irrevocably, with full power of substitution
for Borrower and in the name of Borrower, (i) to exercise and enforce every right, power, remedy, authority, option and privilege
of Borrower under the Interest Rate Cap Agreement, including any power to subordinate or modify the Interest Rate Cap Agreement
(but not, unless an Event of Default exists and is continuing, the right to terminate or cancel the Interest Rate Cap Agreement),
or to give any notices, or to take any action resulting in such subordination, termination, cancellation or modification and (ii) in
order to more fully vest in Agent the rights and remedies provided for herein, to exercise all of the rights, remedies and powers
granted to Agent in this Agreement, and Borrower further authorizes and empowers Agent, as Borrower’s attorney-in-fact, and
as its agent, irrevocably, with full power of substitution for Borrower and in the name of Borrower, to give any authorization,
to furnish any information, to make any demands, to execute any instruments and to take any and all other action on behalf of and
in the name of Borrower which in the opinion of Agent may be necessary or appropriate to be given, furnished, made, exercised or
taken under the Interest Rate Cap Agreement, in order to comply therewith, to perform the conditions thereof or to prevent or remedy
any default by Borrower thereunder or to enforce any of the rights of Borrower thereunder. These powers-of-attorney are irrevocable
and coupled with an interest, and any similar or dissimilar powers heretofore given by Borrower in respect of the Rate Cap Collateral
to any other Person are hereby revoked.


 


(d)          Agent
may, without notice to, or assent by, Borrower or any other Person (to the extent permitted by law), but without affecting any
of the Obligations, in the name of Borrower or in the name of Agent, notify the Counterparty, or if applicable, any other counterparty
to the Interest Rate Cap Agreement, to make payment and performance directly to Agent; extend the time of payment and performance
of, compromise or settle for cash, credit or otherwise, and upon any terms and conditions, any obligations owing to Borrower, or
claims of Borrower, under the Interest Rate Cap Agreement; file any claims, commence, maintain or discontinue any actions, suits
or other proceedings deemed by Agent necessary or advisable for the purpose of collecting upon or enforcing the Interest Rate Cap
Agreement; and execute any instrument and do all other things deemed necessary and proper by Agent to protect and preserve and
realize upon the Rate Cap Collateral and the other rights contemplated hereby.


 


(e)          Pursuant
to the powers-of-attorney provided for above, Agent may take any action and exercise and execute any instrument which it may deem
necessary or advisable to accomplish the purposes hereof; provided, however, that Agent shall not be permitted to take any action
pursuant to said power-of-attorney that would conflict with any limitation on Agent’s rights with respect to the Rate Cap
Collateral. Without limiting the generality of the foregoing, Agent, after the occurrence and during the continuance of an Event
of Default, shall have the right and power to receive, endorse and collect all checks and other orders for the payment of money
made payable to Borrower representing: (i) any payment of obligations owed pursuant to the Interest Rate Cap Agreement, (ii) interest
accruing on any of the Rate Cap Collateral or (iii) any other payment or distribution payable in respect of the Rate Cap Collateral
or any part thereof, and for and in the name, place and stead of Borrower, to execute endorsements, assignments or other instruments
of conveyance or transfer in respect of any property which is or may become a part of the Rate Cap Collateral hereunder.


 




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(f)          Agent
may exercise all of the rights and remedies of a secured party under the UCC.


 


(g)          Without
limiting any other provision of this Agreement or any of Borrower’s rights hereunder, and without waiving or releasing Borrower
from any obligation or default hereunder, Agent shall have the right, but not the obligation, to perform any act or take any appropriate
action, as it, in its reasonable judgment, may deem necessary to protect the security of this Agreement, to cure such Event of
Default or to cause any term, covenant, condition or obligation required under this Agreement or the Interest Rate Cap Agreement
to be performed or observed by Borrower to be promptly performed or observed on behalf of Borrower. All amounts advanced by, or
on behalf of, Agent in exercising its rights under this Section 2.6.7(g) (including, but not limited to, reasonable legal
expenses and disbursements incurred in connection therewith), together with interest thereon at the Default Rate from the date
of each such advance, shall be payable by Borrower to Agent upon demand and shall be secured by this Agreement.


 


2.6.8        Sales
of Rate Cap Collateral. Following the occurrence and during the continuance of an Event of Default, no demand, advertisement
or notice, all of which are, to the fullest extent permitted by law, hereby expressly waived by Borrower, shall be required in
connection with any sale or other disposition of all or any part of the Rate Cap Collateral, except that Agent shall give Borrower
at least thirty (30) Business Days’ prior written notice of the time and place of any public sale or of the time when and
the place where any private sale or other disposition is to be made, which notice Borrower hereby agrees is reasonable, all other
demands, advertisements and notices being hereby waived. To the extent permitted by law, Agent shall not be obligated to make any
sale of the Rate Cap Collateral if it shall determine not to do so, regardless of the fact that notice of sale may have been given,
and Agent may without notice or publication adjourn any public or private sale, and such sale may, without further notice, be made
at the time and place to which the same was so adjourned. Upon each private sale of the Rate Cap Collateral of a type customarily
sold in a recognized market and upon each public sale, unless prohibited by any applicable statute which cannot be waived, Agent
(or its nominee or designee) may purchase any or all of the Rate Cap Collateral being sold, free and discharged from any trusts,
claims, equity or right of redemption of Borrower, all of which are hereby waived and released to the extent permitted by law,
and may make payment therefor by credit against any of the Obligations in lieu of cash or any other obligations. In the case of
all sales of the Rate Cap Collateral, public or private, Borrower shall pay all reasonable costs and expenses of every kind for
sale or delivery, including brokers’ and attorneys’ fees and disbursements and any tax imposed thereon. However, the
proceeds of sale of Rate Cap Collateral shall be available to cover such costs and expenses, and, after deducting such costs and
expenses from the proceeds of sale, Agent shall apply any residue to the payment of the Obligations in the order of priority as
set forth in this Agreement.


 




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2.6.9        Public
Sales Not Possible. Borrower acknowledges that the terms of the Interest Rate Cap Agreement may prohibit public sales,
that the Rate Cap Collateral may not be of the type appropriately sold at public sales, and that such sales may be prohibited by
law. In light of these considerations, Borrower agrees that private sales of the Rate Cap Collateral shall not be deemed to have
been made in a commercially unreasonably manner by mere virtue of having been made privately.


 


2.6.10      Receipt
of Sale Proceeds. Following the occurrence and during the continuance of an Event of Default, upon any sale of the Rate
Cap Collateral by Agent hereunder (whether by virtue of the power of sale herein granted, pursuant to judicial process or otherwise),
the receipt by Agent or the officer making the sale or the proceeds of such sale shall be a sufficient discharge to the purchaser
or purchasers of the Rate Cap Collateral so sold, and such purchaser or purchasers shall not be obligated to see to the application
of any part of the purchase money paid over to Agent or such officer or be answerable in any way for the misapplication or non-application
thereof.


 


2.6.11      Replacement
Interest Rate Cap Agreement. If, in connection with Borrower’s exercise of any Extension Option pursuant to Section
2.7 hereof, Borrower delivers a Replacement Interest Rate Cap Agreement, all the provisions of this Section 2.6 applicable
to the Interest Rate Cap Agreement delivered on the Closing Date shall be applicable to the Replacement Interest Rate Cap Agreement.


 


Section
2.7           Extension Options.


 


2.7.1        Extension
Options. Subject to the provisions of this Section 2.7, Borrower shall have the option (the “First Extension
Option”), by irrevocable written notice (the “First Extension Notice”) delivered to Agent
no later than thirty (30) days prior to the Stated Maturity Date, to extend the Maturity Date to November 9, 2019 (the “First
Extended Maturity Date”). In the event Borrower shall have exercised the First Extension Option, Borrower shall have
the option (the “Second Extension Option”), by irrevocable written notice (the “Second Extension
Notice”) delivered to Agent no later than thirty (30) days prior to the First Extended Maturity Date, to extend the
First Extended Maturity Date to November 9, 2020 (the “Second Extended Maturity Date”). In the event
Borrower shall have exercised the Second Extension Option, Borrower shall have the option (the “Third Extension Option”),
by irrevocable written notice (the “Third Extension Notice”) delivered to Agent no later than thirty
(30) days prior to the Second Extended Maturity Date, to extend the Second Extended Maturity Date to November 9, 2021 (the “Third
Extended Maturity Date”). Borrower’s right to so extend the Maturity Date shall be subject to the satisfaction
of the following conditions precedent prior to each extension hereunder:


 


(a)          
(i) no Event of Default shall have occurred and be continuing on the date Borrower delivers the First Extension Notice, the
Second Extension Notice or the Third Extension Notice, as applicable, and (ii) no Event of Default shall have occurred and
be continuing on the Stated Maturity Date, the First Extended Maturity Date and the Second Extended Maturity Date, as applicable;


 




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(b)          Borrower
shall (i) obtain and deliver to Agent not later than one (1) Business Day prior to the first day of the term of the Loan as
extended, one or more Replacement Interest Rate Cap Agreements from an Approved Counterparty, in a notional amount equal to the
Outstanding Principal Balance, which Replacement Interest Rate Cap Agreement(s) shall be (A) effective for the period commencing
on the day immediately following the then applicable Maturity Date (prior to giving effect to the applicable Extension Option)
and ending on the last day of the Interest Period in which the applicable extended Maturity Date occurs, (B) have a strike price
equal to the Extension Strike Price; provided, Borrower shall be permitted to prepay, on a pro rata basis, a portion of the Loan
(subject to and in accordance with Section 2.4.2) in an amount that maximizes the Extension Strike Price, and (C) otherwise
on the same terms set forth in Section 2.6 and (ii) execute and deliver an Acknowledgement with respect to each such
Replacement Interest Rate Cap Agreement;


 


(c)          Borrower
shall deliver a Counterparty Opinion with respect to the Replacement Interest Rate Cap Agreement and the related Acknowledgment;


 


(d)          all
amounts due and payable by Borrower and any other Person pursuant to this Agreement or the other Loan Documents as of the Stated
Maturity Date, the First Extended Maturity Date or the Second Extended Maturity Date, as applicable, and all out-of-pocket costs
and expenses of Agent and Lenders, including reasonable fees and expenses of Agent’s and Lender’s counsel, in connection
with the Loan and/or the applicable extension of the Term shall have been paid in full;


 


(e)          on
the First Extended Maturity Date and the Second Extended Maturity Date, Borrower shall pay to Agent the applicable Extension Fee;


 


(f)          the
Properties shall have achieved, on the date Borrower delivers the First Extension Notice, the Second Extension Notice or the Third
Extension Notice, as applicable, and on the Stated Maturity Date, the First Extended Maturity Date and the Second Extended Maturity
Date, respectively, a Debt Yield of no less than 6.50%; provided, however, if the Properties do not satisfy the foregoing Debt
Yield requirements provided in this Section 2.7.1(f), Borrower shall be permitted to prepay a portion of the Loan (subject
to and in accordance with Section 2.4.2) in an amount that would be sufficient such that the Debt Yield test set forth above
shall be satisfied;


 


(g)          after
giving effect to any partial prepayments of the Loan under clause (f) of this Section 2.7.1, the Properties shall have achieved,
on the date Borrower delivers the First Extension Notice, the Second Extension Notice or the Third Extension Notice, as applicable,
and on the Stated Maturity Date, the First Extended Maturity Date and the Second Extended Maturity Date, respectively, a Combined
Debt Yield of no less than 5.30%; provided, however, if the Properties do not satisfy the foregoing Combined Debt Yield requirements
provided in this Section 2.7.1(g), Current Mezzanine Borrower shall be permitted to prepay a portion of the Current Mezzanine
Loan (subject to and in accordance with Section 2.4.2 of the Current Mezzanine Loan Agreement) in an amount that would be
sufficient such that the Combined Debt Yield test set forth above shall be satisfied; and


 


(h)          Current
Mezzanine Borrower shall have (i) timely exercised the extension option to extend the Current Mezzanine Loan, and (ii) been
entitled pursuant to the terms of the Current Mezzanine Loan Documents to exercise such extension option and (iii) paid any
extension fee required pursuant to the terms of the Current Mezzanine Note.


 




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If Borrower is unable to satisfy all of
the foregoing conditions within the applicable time frames for each, Agent shall have no obligation to extend or further extend
(as applicable) the Stated Maturity Date hereunder.


 


2.7.2      Extension
Documentation. As soon as practicable following an extension of the Maturity Date pursuant to this Section 2.7,
Borrower shall, if requested by Agent, execute and deliver an amendment of and/or restatement of the Note and shall, if requested
by Agent, enter into such amendments to the related Loan Documents as may be reasonably required to evidence the extension of
the Maturity Date as provided in this Section 2.7; provided, however, that no failure by Borrower to enter into any such
amendments and/or restatements shall affect the rights or obligations of Borrower or Agent with respect to the extension of the
Maturity Date, and no such amendments shall materially increase the obligations or decrease the rights of Borrower or Guarantor
under the Loan Documents.


 


Section 2.8          Spread
Maintenance Premium. Except as otherwise expressly provided herein, upon any repayment or prepayment of the Loan (including
in connection with an acceleration of the Loan) made on or prior to the Spread Maintenance Date, Borrower shall pay to Agent on
the date of such repayment or prepayment (or acceleration of the Loan) the Spread Maintenance Premium applicable thereto. All
Spread Maintenance Premium payments hereunder shall be deemed to be earned by Lenders upon the funding of the Loan.


 


Section 2.9           Regulatory
Change; Taxes.


 


2.9.1      Increased
Costs. If as a result of any Regulatory Change or compliance of any Lender therewith, the basis of taxation of payments
to any Lender or any company Controlling any Lender of the principal of or interest on the Loan is changed or any Lender or the
company Controlling any Lender shall be subject to (i) any tax, duty, charge or withholding of any kind with respect to this
Agreement (excluding federal taxation of the overall net income of such Lender or the company Controlling such Lender); or (ii) any
reserve, special deposit or similar requirements relating to any extensions of credit or other assets of, or any deposits with
or other liabilities, of any Lender or any company Controlling any Lender is imposed, modified or deemed applicable; or (iii) any
other condition affecting loans to borrowers subject to LIBOR-based interest rates is imposed on any Lender or any company Controlling
any Lender and such Lender reasonably determines that, by reason thereof, the cost to such Lender or any company Controlling such
Lender of making, maintaining or extending the Loan to Borrower is increased, or any amount receivable by such Lender or any company
Controlling such Lender hereunder in respect of any portion of the Loan to Borrower is reduced, in each case by an amount deemed
by such Lender in good faith to be material (such increases in cost and reductions in amounts receivable being herein called “Increased
Costs”), then such Lender shall provide notice thereof to Borrower and Borrower agrees that it will pay to such
Lender within five (5) days after such Lender’s written request such additional amount or amounts as will compensate such
Lender or any company Controlling such Lender for such Increased Costs to the extent such Lender reasonably determines that such
Increased Costs are allocable to the Loan. If any Lender requests compensation under this Section 2.9.1, such Lender shall,
if requested by notice by Borrower to such Lender, furnish to Borrower a statement setting forth the basis for requesting such
compensation and the method for determining the amount thereof.


 




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2.9.2      Special
Taxes. Borrower shall make all payments hereunder free and clear of and without deduction for Special Taxes. If Borrower
shall be required by law to deduct any Special Taxes from or in respect of any sum payable hereunder or under any other Loan Document
to Agent, (i) the sum payable shall be increased as may be necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section 2.9.2) each Lender receives an amount equal to the
sum it would have received had no such deductions been made, (ii) Borrower shall make such deductions, and (iii) Borrower
shall pay the full amount deducted to the relevant Governmental Authority in accordance with applicable law.


 


2.9.3      Other
Taxes. In addition, Borrower agrees to pay any present or future stamp or documentary taxes or other excise or property
taxes, charges, or similar levies which arise from any payment made hereunder, or from the execution, delivery or registration
of, or otherwise with respect to, this Agreement, the other Loan Documents, or the Loan (hereinafter referred to as “Other
Taxes”).


 


2.9.4      Withholding
Taxes. At Borrower’s reasonable request and to the extent reasonably necessary to establish that the holder of the
Loan is exempt from the withholding of Applicable Taxes under the Code, Agent shall provide Borrower with United States Revenue
Service Forms 424, 1001, W-8, W-9, W-8BEN, W-8IM4, W-8ECI and/or such other forms or documents as may be applicable to establish
the extent, if any, to which a payment to Agent or Lender is exempt from withholding or deduction of such taxes.  For the
purposes hereof, “Applicable Taxes” shall mean any and all present or future taxes, levies, imposts,
deductions, charges or withholdings imposed by the United States, and all liabilities with respect thereto, excluding taxes imposed
on Agent’s or Lender’s income or gross receipts, and franchise taxes imposed on Agent or Lender by the law or regulation
of the United States. Borrower has the right to withhold taxes from payments with respect any Obligations to the extent required
by any applicable Governmental Authority.


 


Section 2.10         Defaulting
Lender.


 


(a)          Notwithstanding
anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such
Lender is no longer a Defaulting Lender, to the extent permitted by applicable law, such Defaulting Lender shall be deemed not
to be a “Lender” for purposes of any modification, waiver or consent with respect to any provision of the Loan Documents
that requires the approval of the Lenders.


 


(b)          If
a Lender is no longer a Defaulting Lender, 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 its Ratable Share of the Loan funded by other Lenders or take such other actions as the Agent may determine to be necessary
to cause the Loan to be held pro rata by the Lenders in accordance with their Ratable Share. Upon satisfaction of the conditions
set forth in the preceding sentence, including those set forth in Agent’s notice, the applicable 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 Lender 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 Lender’s having been a Defaulting Lender.


 




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(c)          The
Agent, or a Qualified Lender shall have the right (but not the obligation) to purchase from any Defaulting Lender, and each Defaulting
Lender shall, upon such request, sell and assign to the Agent or such Qualified Lender, all of the Defaulting Lender’s outstanding
Ratable Share of the Loan. Such sale shall be consummated promptly after Agent has arranged for a purchase by the Agent or a Qualified
Lender pursuant to an Assignment and Acceptance, and at a price equal to the outstanding principal balance of the Defaulting Lender’s
Ratable Share of the Loan, plus accrued interest, without premium or discount.


 


Article
3


 


REPRESENTATIONS AND WARRANTIES


 


Section 3.1           Borrower
Representations. Borrower represents and warrants as of the Closing Date that, except to the extent (if any) disclosed
on Schedule IV hereto with reference to a specific subsection of this Section 3.1:


 


3.1.1      Organization;
Special Purpose. Borrower is duly organized, validly existing and in good standing with full power and authority to own
its assets and conduct its business, and is duly qualified and in good standing in the jurisdiction in which the Properties are
located and in which the ownership or lease of its property or the conduct of its business requires such qualification, and Borrower
has taken all necessary limited liability company action to authorize the execution, delivery and performance of this Agreement
and the other Loan Documents by it, and has the limited liability company power and authority to execute, deliver and perform
under this Agreement, the other Loan Documents and all the transactions contemplated hereby. Borrower is a Special Purpose Bankruptcy
Remote Entity.


 


3.1.2      Proceedings;
Enforceability. This Agreement and the other Loan Documents have been duly authorized, executed and delivered by Borrower
and constitute a legal, valid and binding obligation of Borrower, enforceable against Borrower in accordance with their respective
terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting
the enforcement of creditors’ rights generally, and by general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law). The Loan Documents 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, and none of Borrower or Guarantor have asserted
any right of rescission, set-off, counterclaim or defense with respect thereto.


 


3.1.3      No
Conflicts. The execution and delivery of this Agreement and the other Loan Documents by Borrower and the performance of
its Obligations hereunder and thereunder will not conflict with any provision of any law or regulation to which Borrower is subject,
or conflict with, result in a breach of, or constitute a default under, any of the terms, conditions or provisions of Borrower’s
organizational documents or any agreement or instrument to which Borrower is a party or by which it is bound, or any order or
decree applicable to Borrower, or result in the creation or imposition of any Lien on Borrower’s assets or property (other
than pursuant to the Loan Documents).


 


3.1.4      Litigation.
There is no action, suit, proceeding or investigation pending or, to Borrower’s Knowledge, threatened in writing against
Borrower, Guarantor, the Manager or any Property in any court or by or before any other Governmental Authority which, if adversely
determined, could reasonably likely result in a Material Adverse Effect.


 




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3.1.5       Agreements.
Borrower is not a party to any agreement or instrument or subject to any restriction which might materially and adversely affect
Borrower or any Property, or Borrower’s business, properties or assets, operations or financial condition. Borrower is not
in default with respect to any order or decree of any court or any order, regulation or demand of any Governmental Authority,
which default might have consequences that would materially and adversely affect the financial condition or operations of Borrower
or its properties or might have consequences that would materially and adversely affect its performance hereunder. Borrower is
not in default in any material respect in the performance, observance or fulfillment of any of the obligations, covenants or conditions
contained in any Permitted Encumbrance or any other agreement or instrument to which it is a party or by which it or any Property
is bound.


 


3.1.6       Consents.
No consent, approval, authorization or order of any court or Governmental Authority is required for the execution, delivery and
performance by Borrower of, or compliance by Borrower with, this Agreement or the other Loan Documents or the consummation of
the transactions contemplated hereby, other than those which have been obtained by Borrower.


 


3.1.7       Properties;
Title.


 


(a)          Borrower
has insurable fee simple title to the real property comprising part of the Properties and good title to the balance of the Properties
owned by it, free and clear of all Liens whatsoever except the Permitted Encumbrances. The Mortgage, when properly recorded in
the appropriate records, together with any Uniform Commercial Code financing statements required to be filed in connection therewith,
when properly filed in the appropriate records, will create (i) valid, first priority, perfected Liens on Borrower’s
interest in the Properties, subject only to Permitted Encumbrances, and (ii) perfected security interests in and to, and perfected
collateral assignments of, all personalty (including the Leases), to the extent that a security interest therein may be perfected
by the filing of a financing statement in accordance with the UCC, all in accordance with the terms thereof, in each case subject
only to the Permitted Encumbrances. Except as disclosed to Agent in writing, there are no mechanics’, materialman’s
or other similar Liens or claims which have been filed for work, labor or materials affecting any Property which are or may be
Liens prior to, or equal or coordinate with, the Lien of the Mortgage. None of the Permitted Encumbrances, individually or in the
aggregate, could likely result in a Material Adverse Effect.


 


(b)          All
transfer taxes, deed stamps, intangible taxes or other amounts in the nature of transfer taxes required to be paid under applicable
Legal Requirements in connection with the transfer of the Properties to Borrower have been paid or are being paid simultaneously
herewith. All mortgage, mortgage recording, stamp, intangible or other similar tax required to be paid under applicable Legal Requirements
in connection with the execution, delivery, recordation, filing, registration, perfection or enforcement of any of the Loan Documents,
including the Mortgage, have been paid or are being paid simultaneously herewith. All taxes and governmental assessments due and
owing in respect of the Properties have been paid, or an escrow of funds in an amount sufficient to cover such payments has been
established hereunder or are insured against by the Title Insurance Policies.


 




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(c)          Each
Property is comprised of one (1) or more parcels which constitute separate tax lots and do not constitute a portion of any
other tax lot not a part of such Property.


 


(d)          No
Condemnation or other proceeding has been commenced or, to Borrower’s Knowledge, is contemplated with respect to all or any
portion of any Property or for the relocation of roadways providing access to such Property.


 


(e)          To
Borrower’s Knowledge, there are no pending or proposed special or other assessments for public improvements or otherwise
affecting any Property, nor are there any contemplated improvements to such Property that may result in such special or other assessments.


 


3.1.8       ERISA;
No Plan Assets. As of the date hereof and throughout the Term (i) none of Borrower or Guarantor are themselves an
“employee benefit plan,” as defined in Section 3(3) of ERISA or a “plan” within the meaning of Section
4975 of the Code, (ii) none of the assets of Borrower or Guarantor constitutes or will constitute “plan assets”
of one or more such plans within the meaning of 29 C.F.R. Section 2510.3-101 as modified in operation by Section 3(42) of
ERISA, (iii) Borrower and Guarantor are not and will not be a “governmental plan” within the meaning of Section 3(32)
of ERISA, and (iv) transactions by or with Borrower or Guarantor are not and will not be subject to state statutes regulating
investment of, and fiduciary obligations with respect to, governmental plans. Borrower has not engaged in any transaction in connection
with any Plan that could subject Borrower to either a material civil penalty assessed pursuant to the provisions of Section 502
of ERISA or a material tax imposed under the provisions of Section 4975 of the Code. As of the date hereof, neither the Borrower
nor, in the case of a Guarantor who is an entity, the Guarantor, nor any ERISA Affiliate maintains, sponsors or contributes to
or has any obligations with respect to a Plan or has maintained or sponsored or contributed to or had any obligations with respect
to any Plan for the six plan year period prior to the date hereof. Borrower is in compliance in all material respects with the
applicable provisions of ERISA and the provisions of the Code relating to Employee Benefit Plans and the regulations and published
interpretations thereunder and there are no material claims pending with respect to any such plan; (ii) no ERISA Event has
occurred in the six-year period prior to the date on which this representation is made or deemed made or is reasonably expected
to occur and (iii) all material amounts required by applicable law with respect to, or by the terms of, any retiree welfare
benefit arrangement maintained by Borrower or to which Borrower has an obligation to contribute have been accrued in accordance
with Statement of Financial Accounting Standards No. 106. There would be no material liability (contingent or otherwise) of Borrower
and any ERISA Affiliates with respect to the complete or partial withdrawal from all Multiemployer Plans if such a withdrawal
were to occur as of the date hereof. All employees employed at the Properties are the employees of Borrower, and, except for the
Union Contract, neither Borrower nor any ERISA Affiliates has any obligation or liability with respect to any collective bargaining
agreement or plans thereunder. Borrower and, with respect to the Properties, Manager (1) are not involved in or been threatened
in writing with any work stoppage, labor strike, slowdown or lockout labor dispute, material grievance or litigation relating
to labor matters involving any employees at the Properties, including, without limitation, claims relating to a violation of any
federal, state or local labor, safety or employment laws (domestic or foreign) and/or charges of unfair labor practices or discrimination
complaints, (2) have not engaged in any unfair labor practices within the meaning of the National Labor Relations Act or similar
law, and (3) are in compliance with, and not liable for non-compliance of any party with respect to, applicable labor and employment
laws including wage-hour laws, tax withholding and other relevant laws relating to employees and independent contractors.


 




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3.1.9      Compliance.
Except as set forth in the zoning reports delivered to Agent in connection with closing of the Loan and the municipal searches
received by Agent, Borrower and each Property (including, but not limited to the Improvements) and the use thereof comply in all
material respects with all applicable Legal Requirements, including parking, building and zoning and land use laws, ordinances,
regulations and codes (it being understood that all representations and warranties as to environmental Legal Requirements are
as set forth in the Environmental Indemnity, and as to RPTL Tax Benefit Law are as set forth in Section 3.1.36 hereof).
Borrower is not in default or violation of any order, writ, injunction, decree or demand of any Governmental Authority, the violation
of which might materially adversely affect the condition financial condition or business of Borrower. Borrower has not committed
any act which may give any Governmental Authority the right to cause Borrower to forfeit the Properties or any part thereof or
any monies paid in performance of Borrower’s Obligations under any of the Loan Documents. Each Property is used exclusively
for multi-family residential, commercial and other appurtenant and related uses. Except as set forth in the zoning reports delivered
to Agent in connection with closing of the Loan, in the event that all or any part of the Improvements are destroyed or damaged,
said Improvements can be legally reconstructed to their condition prior to such damage or destruction, and thereafter exist for
the same use without violating any zoning or other ordinances applicable thereto and without the necessity of obtaining any variances
or special permits. No legal proceedings are pending or, to Borrower’s Knowledge, threatened in writing with respect to
the zoning of any Property. Neither the zoning nor any other right to construct, use or operate any Property is in any way dependent
upon or related to any property other than such Property. All certifications, permits, licenses and approvals, including without
limitation, certificates of completion and occupancy permits (either temporary or permanent) required of Borrower for the legal
use, occupancy and operation of the Properties for their current uses (collectively, the “Licenses”),
have been obtained and are in full force and effect. The use being made of each Property is in conformity in all material respects
with the certificate(s) of occupancy issued for such Property and all other material restrictions, covenants and conditions affecting
such Property.


 


3.1.10    Financial
Information. All financial data, including the statements of cash flow and income and operating expense with respect to
the Borrower, the Guarantor and the Properties that have been delivered to Agent in connection with the Loan (i) are true,
complete and correct in all material respects, (ii) accurately represent the financial condition of the Properties as of
the date of such reports, and (iii) have been prepared in accordance with an Acceptable Accounting Method throughout the
periods covered, except as disclosed therein. Borrower has no 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 any Property or the operation thereof, except as referred to or reflected in said
financial statements. Since the date of the financial statements, there has been no material adverse change in the financial condition,
operations or business of Borrower or any Property from that set forth in said financial statements.


 




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3.1.11    Easements;
Utilities and Public Access. To Borrower’s Knowledge, all easements, cross easements, licenses, air rights and rights-of-way
or other similar property interests (collectively, “Easements”), if any, necessary for the full utilization
of the Improvements for their intended purposes have been obtained, are described in the Title Insurance Policies and are in full
force and effect without default thereunder. Each Property has rights of access to public ways and is served by water, sewer,
sanitary sewer and storm drain facilities adequate to service such Property for its intended uses. All public utilities necessary
or convenient to the full use and enjoyment of each Property are, to Borrower’s Knowledge, located in the public right-of-way
abutting such Property, and, to Borrower’s Knowledge, all such utilities are connected so as to serve such Property without
passing over other property absent a valid irrevocable easement. All roads necessary for the use of each Property for its current
purpose have been completed and dedicated to public use and accepted by all Governmental Authorities.


 


3.1.12    Assignment
of Leases. The Assignment of Leases creates valid assignments of, or valid security interests in, certain rights under
the Leases, subject only to a license granted to Borrower to exercise certain rights and to perform certain obligations of the
lessor under the Leases, including the right to operate the Properties. No Person other than Agent and Lenders has any interest
in or assignment of the Leases or any portion of the Rents due and payable or to become due and payable thereunder.


 


3.1.13    Insurance.
Borrower has obtained and has delivered to Agent certificates of insurance evidencing the issuance of all of the Policies, with
all premiums prepaid thereunder, reflecting the insurance coverages, amounts and other requirements set forth in this Agreement.
No claims have been made under any of the Policies, and, to Borrower’s Knowledge, no Person, including Borrower, has done,
by act or omission, anything which would impair the coverage of any of the Policies.


 


3.1.14    Flood
Zone. No Improvements are located in an area identified by the Federal Emergency Management Agency as a special flood
hazard area, or, if so located the flood insurance required pursuant to Section 5.1.1(a) hereof is in full force and
effect with respect to such Property.


 


3.1.15    Physical
Condition. Except as may be expressly set forth in the Physical Conditions Reports, to Borrower’s Knowledge, each
Property, including all buildings, 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, are in good condition, order and repair in all material respects; there exists no structural
or other material defects or damages in any 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 Property, or any part thereof, which would materially
and adversely affect the insurability of the same or cause the imposition of extraordinary premiums or charges thereon or any
termination or threatened termination of any policy of insurance or bond.


 


3.1.16    Boundaries.
Except as set forth in the Title Insurance Policies, to Borrower’s Knowledge all of the Improvements which were included
in determining the appraised value of each Property lie wholly within the boundaries and building restriction lines of such Property,
and no improvements on adjoining properties encroach upon any Property, and no easements or other encumbrances affecting any Property
encroach upon any of the Improvements, so as to affect the value or marketability of such Property, except those which are set
forth on the Survey of such Property and insured against by the Title Insurance Policy for such Property.


 




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3.1.17    Leases.


 


(a)          The
rent rolls attached hereto as Schedule I are true, complete and correct and no Property is subject to any Leases
other than the Leases described in Schedule I. Borrower is the owner and lessor of landlord’s interest
in the Leases. No Person has any possessory interest in any Property or right to occupy the same except under and pursuant to the
provisions of the Leases.


 


(b)          With
respect to residential Leases, except as set forth on the rent rolls attached hereto as Schedule I: (i) the
Leases are in full force and effect and there are no material defaults thereunder by either party beyond any applicable notice
or cure period, and, to Borrower’s Knowledge, except for certain rent arrearages that have been disclosed to Agent as of
the date of this Agreement, there are no conditions that, with the passage of time or the giving of notice, or both, would constitute
defaults thereunder, (ii) the copies of the Leases delivered to Agent are true and complete, and, to Borrower’s Knowledge,
there are no oral agreements with respect thereto, (iii) no Rent (including security deposits but not including last month’s
rent) has been paid more than one (1) month in advance of its due date, (iv) any payments, free rent, partial rent, rebate
of rent or other payments, credits, allowances or abatements required to be given by Borrower to any Tenant has already been received
by such Tenant, (v) Borrower has delivered to Agent a true, correct and complete list of all security deposits made by Tenants
at any Property which have not been applied (including accrued interest thereon), all of which are held by Borrower in accordance
with the terms of the applicable Lease and applicable Legal Requirements, (vi) to Borrower’s Knowledge, each Tenant
under a Major Lease is free from bankruptcy or reorganization proceedings, and (vii) there are no brokerage fees or commissions
due and payable in connection with the leasing of space at any Property, except as has been previously disclosed to Agent in writing,
and no such fees or commissions will become due and payable in the future in connection with the Leases, including by reason of
any extension of such Lease or expansion of the space leased thereunder, except as has previously been disclosed to Agent in writing.


 


(c)          With
respect to non-residential Leases, except as set forth on the rent rolls attached hereto as Schedule I: (i) the
Leases are in full force and effect and there are no defaults thereunder by either party beyond any applicable notice or cure period,
and there are no conditions that, with the passage of time or the giving of notice, or both, would constitute defaults thereunder,
(ii) the copies of the Leases delivered to Agent are true and complete, and there are no oral agreements with respect thereto,
(iii) no Rent (including security deposits) has been paid more than one (1) month in advance of its due date, (iv) all
work to be performed by Borrower under any Lease has been performed as required and has been accepted by the applicable Tenant,
(v) any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given
by Borrower to any Tenant has already been received by such Tenant, (vi) the Tenants under the Leases have accepted possession
of and are in occupancy of all of their respective demised Property and have commenced the payment of full, unabated rent under
the Leases, (vii) Borrower has delivered to Agent a true, correct and complete list of all security deposits made by Tenants
at any Property which have not been applied (including accrued interest thereon), all of which are held by Borrower in accordance
with the terms of the applicable Lease and applicable Legal Requirements, (viii) each Tenant under a Major Lease is free from
bankruptcy or reorganization proceedings, (ix) no Tenant under any Lease (or any sublease) is an Affiliate of Borrower, (x) the
Tenants under the Leases are open for business and paying full, unabated rent and no Tenant has informed Borrower in writing that
it intends to discontinue its business at its premises, (xi) there are no brokerage fees or commissions due and payable in
connection with the leasing of space at any Property, except as has been previously disclosed to Agent in writing, and no such
fees or commissions will become due and payable in the future in connection with the Leases, including by reason of any extension
of such Lease or expansion of the space leased thereunder, except as has previously been disclosed to Agent in writing, (xii) no
Tenant under any Lease has any right or option for additional space in the Improvements and (xiii) to Borrower’s Knowledge,
no Tenant has assigned its Lease or sublet all or any portion of the premises demised thereby, and no such Tenant holds its leased
premises under assignment or sublease, nor does anyone except such Tenant and its employees occupy such leased premises. There
has been no prior sale, transfer or assignment, hypothecation or pledge of any Lease or of the Rents received therein which is
still in effect.


 




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(d)          No
Tenant under any Lease has a right or option pursuant to such Lease to purchase all or any part of the leased premises or the building
of which the leased premises are a part.


 


3.1.18     Tax
Filings. To the extent required, Borrower has filed (or has obtained effective extensions for filing) all federal, state,
commonwealth, district and local tax returns required to be filed and has paid or made adequate provision for the payment of all
federal, state, commonwealth, district and local taxes, charges and assessments payable by Borrower. Borrower’s tax returns
(if any) properly reflect the income and taxes of Borrower for the periods covered thereby, subject only to reasonable adjustments
required by the Internal Revenue Service or other applicable tax authority upon audit.


 


3.1.19     No
Fraudulent Transfer. Borrower has not entered into the transaction or any Loan Document with the actual intent to hinder,
delay, or defraud any creditor, and Borrower has received reasonably equivalent value in exchange for its Obligations under the
Loan Documents. After giving effect to the Loan, the fair saleable value of Borrower’s assets exceeds and will, immediately
following the making of the Loan, exceed Borrower’s total liabilities, including subordinated, unliquidated, disputed and
contingent liabilities; (ii) the fair saleable value of Borrower’s assets is, and immediately following the making
of the Loan, will be, greater than Borrower’s probable liabilities, including the maximum amount of its contingent liabilities
on its debts as such debts become absolute and matured; (iii) Borrower’s assets do not and, immediately following the
making of the Loan will not, constitute unreasonably small capital to carry out its business as conducted or as proposed to be
conducted; and (iv) Borrower does not intend to, and does not believe that it will, incur Indebtedness and liabilities (including
contingent liabilities and other commitments) beyond its ability to pay such Indebtedness 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 the obligations
of Borrower). No petition in bankruptcy has been filed against Borrower or any constituent Person of Borrower, and neither Borrower
or any constituent Person of Borrower has ever made an assignment for the benefit of creditors or taken advantage of any insolvency
act for the benefit of debtors. Neither Borrower or any constituent Persons of Borrower are 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 Borrower’s
assets or properties, and Borrower does not have Borrower’s Knowledge of any constituent Person contemplating the filing
of any such petition against it or such constituent Persons.


 




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3.1.20    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.


 


3.1.21    Organizational
Chart. The organizational chart attached as Schedule III, relating to Borrower and certain Affiliates and
other parties, is true, complete and correct on and as of the date hereof. No Person other than those Persons shown on Schedule
III have any ownership interest in, or right of control, directly or indirectly, in Borrower.


 


3.1.22    Organizational
Status. Borrower’s exact legal name, organizational type (e.g., corporation, limited liability company) and the
jurisdiction in which Borrower is organized are set forth on the organizational chart attached hereto as Schedule III.
Borrower’s Tax I.D. number is 47-2418604 and Organizational I.D. number is 5647853.


 


3.1.23    Bank
Holding Company. Borrower is not a “bank holding company” or a direct or indirect subsidiary of a “bank
holding company” as defined in the Bank Holding Company Act of 1956, as amended, and Regulation Y thereunder of the Board
of Governors of the Federal Reserve System.


 


3.1.24    No
Casualty. No Improvements at any Property have suffered a material casualty or damage which has not been fully repaired
and the cost thereof fully paid.


 


3.1.25    Purchase
Options. No Property or any part thereof is subject to any purchase options, rights of first refusal, rights of first
offer or other similar rights in favor of third parties.


 


3.1.26    FIRPTA.
Borrower is not a “foreign person” within the meaning of Sections 1445 or 7701 of the Code.


 


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


 


3.1.28    Fiscal
Year. Each fiscal year of Borrower commences on January 1.


 


3.1.29   Other
Debt. There is no indebtedness with respect to any Property or any excess cash flow or any residual interest therein,
whether secured or unsecured, other than Permitted Encumbrances and Permitted Indebtedness.


 


3.1.30    Contracts.


 


(a)          Borrower
has not entered into, nor is bound by, any Major Contract which continues in existence, except those previously disclosed in writing
to Agent.


 




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(b)          Each
of the Major Contracts is in full force and effect, there are no monetary or other material defaults by Borrower thereunder and,
to Borrower’s Knowledge, there are no monetary or other material defaults thereunder by any other party thereto. None of
Borrower, Manager or any other Person acting on Borrower’s behalf has given or received any notice of default under any of
the Major Contracts that remains uncured or in dispute.


 


(c)          Borrower
has delivered true, correct and complete copies of the Major Contracts (including all amendments and supplements thereto) to Agent.


 


(d)          No
Major Contract has as a party an Affiliate of Borrower. All fees and other compensation for services previously performed under
the Management Agreements have been paid in full.


 


3.1.31    Full
and Accurate Disclosure. No statement of fact made by Borrower in this Agreement or in any of the other Loan Documents
contains any untrue statement of a material fact or omits to state any material fact necessary to make statements contained herein
or therein not misleading in light of the circumstances under which they were made. There is no material fact presently known
to Borrower which has not been disclosed to Agent which materially adversely affects, or as far as Borrower can foresee, might
materially adversely affect, any Property or the business, operations or condition (financial or otherwise) of Borrower.


 


3.1.32    Other
Obligations and Liabilities. Borrower has no liabilities or other obligations that arose or accrued prior to the date
hereof that, either individually or in the aggregate, could have a Material Adverse Effect. Borrower has no known contingent liabilities
(other than the ongoing litigation relating to 421-g Tax Benefits at the Property, which, if adversely decided, would not have
a Material Adverse Effect).


 


3.1.33    Intellectual
Property/Websites. Other than as set forth on Schedule VI, neither Borrower nor any Affiliate (i) has
or holds any tradenames, trademarks, servicemarks, logos, copyrights, patents or other intellectual property (collectively, “Intellectual
Property”) with respect to any Property or the use or operations thereof or (ii) is the registered holder of
any website with respect to such Property (other than Tenant websites).


 


3.1.34    Operations
Agreements. To Borrower’s Knowledge, (i) each Operations Agreement is in full force and effect, (ii) Borrower
is not in default thereunder, and, (iii) there are no conditions which, with the passage of time or the giving of notice,
or both, would constitute a default thereunder.


 


3.1.35    Illegal
Activity. No portion of any Property has been or will be purchased in the future, in each case by Borrower or any Affiliate
of Borrower, with proceeds of any illegal activity.


 


3.1.36    Residential
Tax Benefits. The Property is receiving real estate tax benefits (the “421-g Tax Benefits”)
pursuant to Real Property Tax Law (the “RPTL”) § 421-g (the “RPTL Tax Benefit Law”).
The “Exemption” for the 110 Church Property expired June 30, 2015 and the 110 Church Property is currently receiving
an “Abatement”, which ends June 30, 2017. The “Abatement” for the 53 Park Place Property expired June
30, 2015. The 421-g Tax Benefits for the 110 Church Property is currently subject to a phase-out such that Borrower will be paying
real estate taxes without any 421-g Tax Benefits on July 1, 2017 with respect to such Property.


 




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Section 3.2          Survival
of Representations. The representations and warranties set forth in Section 3.1 and elsewhere in this Agreement
and the other Loan Documents shall (i) survive until the Obligations have been paid and performed in full and (ii) be
deemed to have been relied upon by Agent and Lenders notwithstanding any investigation heretofore or hereafter made by Lender
or on its behalf.


 


Article
4



BORROWER COVENANTS


 


Until the end of the
Term, Borrower hereby covenants and agrees with Agent and Lenders that:


 


Section 4.1         Payment
and Performance of Obligations. Borrower shall pay and otherwise perform the Obligations in accordance with the terms
of this Agreement and the other Loan Documents.


 


Section 4.2          Due
on Sale and Encumbrance; Transfers of Interests. Borrower acknowledges that Agent and Lenders have examined and relied
on the experience of Borrower and its stockholders, general partners and members, 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 Property owned by Borrower 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 Agent and Lenders 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, Agent can recover the Debt by a sale of the Properties. Therefore, without the prior written consent of Agent,
but, in each instance, subject to the provisions of Article 7, neither Borrower nor any other Person having a direct or
indirect ownership or beneficial interest in Borrower shall sell, convey, mortgage, grant, bargain, encumber, pledge, assign or
transfer any Property or any part thereof, or any interest, direct or indirect, in Borrower, whether voluntarily or involuntarily
or enter into or subject the Property to a PACE Loan (a “Transfer”). A Transfer within the meaning of
this Section 4.2 shall be deemed to include (i) an installment sales agreement wherein Borrower agrees to sell
a Property or any part thereof for a price to be paid in installments; (ii) an agreement by Borrower for the leasing of all
or a substantial part of a Property for any purpose other than the 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 Borrower, Guarantor or any general partner, managing member or controlling shareholder of Borrower
or Guarantor is a corporation, the voluntary or involuntary sale, conveyance or transfer of such corporation’s stock (or
the stock of any corporation directly or indirectly controlling such corporation by operation of law or otherwise) or the creation
or issuance of new stock; (iv) if Borrower, Guarantor or any general partner, managing member or controlling shareholder
of Borrower or Guarantor is a limited or general partnership, joint venture or limited liability company, the change, removal,
resignation or addition of a general partner, managing partner, limited partner, joint venturer or member or the transfer of the
partnership interest of any general partner, managing partner or limited partner or the transfer of the interest of any joint
venturer or member; and (v) any pledge, hypothecation, assignment, transfer or other encumbrance of any direct or indirect ownership
interest in Borrower.


 




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Section
4.3           Liens. Borrower shall not create, incur, assume or
permit to exist any Lien on any direct or indirect interest in Borrower or any portion of any Property, except for the
Permitted Encumbrances. After prior notice to Agent, Borrower, at its own expense, may contest by appropriate legal
proceeding, conducted in good faith and with due diligence, the amount or validity of any Liens, provided that (i) no
Event of Default has occurred and remains uncured; (ii) such proceeding shall be permitted under and be conducted in
accordance with all applicable statutes, laws and ordinances; (iii) neither the applicable Property nor any part thereof
or interest therein will be in imminent danger of being sold, forfeited, terminated, canceled or lost; (iv) Borrower shall
promptly upon final determination thereof pay the amount of any such Liens, together with all costs, interest and
penalties which may be payable in connection therewith; (v) to insure the payment of such Liens, Borrower shall deliver to
Agent either (A) cash, or other security as may be reasonably acceptable to Agent, in an amount not to exceed one hundred ten
percent (110%) of the contested amount or (B) a payment and performance bond in an amount equal to one hundred percent (100%)
of the contested amount from a surety acceptable to Agent in its reasonable discretion, (vi) failure to pay such Liens
will not subject Agent to any civil or criminal liability, (vii) such contest shall not affect the ownership, use or
occupancy of the applicable Property, and (viii) Borrower shall, upon request by Agent, give Agent prompt notice of the
status of such proceedings and/or confirmation of the continuing satisfaction of the conditions set forth in clauses (i)
through (vii) of this Section 4.3. Agent may pay over any such cash or other security held by Agent to the
claimant entitled thereto at any time when, in the reasonable judgment of Agent, the entitlement of such claimant is
established or the applicable Property (or any part thereof or interest therein) shall be in imminent danger of being sold,
forfeited, terminated, cancelled or lost or there shall be any imminent danger of the Lien of the Mortgage secured by such
Property being primed by any related Lien.


 


Section
4.4           Special Purpose. Without in any way limiting the
provisions of this Article 4, Borrower shall at all times be a Special Purpose Bankruptcy Remote Entity. Borrower
shall not directly or indirectly make any change, amendment or modification to its organizational documents, or otherwise
take any action which could result in Borrower not being a Special Purpose Bankruptcy Remote Entity.


 


Section
4.5           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
and all rights, licenses, permits, franchises and all applicable governmental authorizations necessary for the operation of
the Properties and comply in all material respects with all Legal Requirements applicable to it and the Properties (it being
understood that, with respect to RPTL Tax Benefits Law and Rent Regulation Laws, compliance with Section 4.33 shall
constitute compliance with Legal Requirements hereunder).


 




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Section 4.6          Taxes
and Other Charges. Borrower shall pay all Taxes and Other Charges now or hereafter levied, assessed or imposed as the
same become due and payable, and shall furnish to Agent receipts for the payment of the Taxes and the Other Charges prior to the
date the same shall become delinquent (provided, however, that Borrower need not pay Taxes directly nor furnish such receipts
for payment of Taxes to the extent that funds to pay for such Taxes have been deposited into the Tax Account pursuant to Section 6.3).
Borrower shall not permit or suffer, and shall promptly discharge, any Lien or charge against any Property with respect to Taxes
and Other Charges, and shall promptly pay for all utility services provided to such Property. After prior notice to Agent, Borrower,
at its own expense, may contest by appropriate legal proceeding, conducted in good faith and with due diligence, the amount or
validity of any Taxes or Other Charges, provided that (i) no Event of Default has occurred and remains uncured; (ii) such
proceeding shall be permitted under and be conducted in accordance with all applicable statutes, laws and ordinances; (iii) no
Property or any part thereof or interest therein will be in imminent danger of being sold, forfeited, terminated, canceled or
lost; (iv) 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; (v) such proceeding shall suspend the
collection of the contested Taxes or Other Charges from the applicable Property; (vi) Borrower shall deposit with Agent cash,
or other security as may be reasonably requested by Agent, in an amount not to exceed one hundred ten percent (110%) of the contested
amount, to insure the payment of any such Taxes or Other Charges, together with all interest and penalties thereon, provided that
no such cash or other security shall be required in the amount of such Taxes or Other Charges if Agent reasonably determines that
there are sufficient funds in the Tax Account for payment of such Taxes or Other Charges and any interest or penalties that may
accrue thereon, (vii) failure to pay such Taxes or Other Charges will not subject Agent or any Lenders to any civil or criminal
liability, (viii) such contest shall not affect the ownership, use or occupancy of the applicable Property, and (ix) Borrower
shall, upon reasonable request by Agent, give Agent prompt notice of the status of such proceedings and/or confirmation of the
continuing satisfaction of the conditions set forth in clauses (i) through (viii) of this Section 4.6. Agent
may pay over any such cash or other security held by Agent to the claimant entitled thereto at any time when, in the judgment
of Agent, the entitlement of such claimant is established or the applicable Property (or any part thereof or interest therein)
shall be in imminent danger of being sold, forfeited, terminated cancelled or lost or there shall be any imminent danger of the
Lien of the Mortgage secured by such Property being primed by any related Lien.


 


Section 4.7         Litigation.
Borrower shall give prompt notice to Agent of any litigation or governmental proceedings pending or threatened in writing against
any Property, Borrower, Manager (solely with respect to a Property) or Guarantor which, if adversely determined, would likely
have a Material Adverse Effect.


 


Section 4.8          Title
to the Properties. Borrower shall warrant and defend (a) its title to the Properties and every part thereof, subject
only to Permitted Encumbrances and (b) the validity and priority of the Lien of the Mortgage, the Assignment of Leases and
this Agreement on the Properties, subject only to Permitted Encumbrances, in each case against the claims of all Persons whomsoever.
Borrower shall reimburse Agent and Lenders for any losses, out-of-pocket costs, damages or out-of-pocket expenses (including reasonable
attorneys’ fees and court costs) incurred by Agent or any Lenders if an interest in any Property, other than as permitted
hereunder, is claimed by another Person, other than a Person claiming by, through or under Agent (on behalf of Lenders).


 


Section 4.9           Financial
Reporting.


 


4.9.1      Generally.
Borrower shall keep and maintain or will cause to be kept and maintained proper and accurate books and records, in accordance
with an Acceptable Accounting Method, and, to the extent required under Section 9.1 hereof, the requirements of Regulation
AB, reflecting the financial affairs of Borrower and all items of income and expense in connection with the operation of the Properties.
Agent shall have the right from time to time during normal business hours upon two (2) days’ prior notice (which may be
given orally) to Borrower to examine such books and records at the office of Borrower or other Person maintaining such books and
records and to make such copies or extracts thereof as Agent shall reasonably require. After an Event of Default, Borrower shall
pay any out-of-pocket costs incurred by Agent to examine such books, records and accounts, as Agent shall determine to be necessary
or appropriate in the protection of Agent’s and Lenders’ interests.


 




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4.9.2      Quarterly
Reports. Not later than forty-five (45) days following the end of each fiscal quarter (or each calendar month prior to
a Securitization of the Loan), Borrower shall deliver to Agent:


 


(i)          unaudited
financial statements, internally prepared in accordance with an Acceptable Accounting Method including a balance sheet and profit
and loss statement as of the end of such quarter (or month) and for the corresponding quarter (or month) of the previous year,
and a statement of revenues and expenses for such quarter (or month) and the year to date, and a comparison of the year to date
results with the Annual Budget for such period and the Fiscal Year. Such statements for each quarter (or month) shall be accompanied
by an Officer’s Certificate certifying to the best of the signer’s knowledge, (A) that such statements fairly
represent the financial condition and results of operations of Borrower and (B) that as of the date of such Officer’s
Certificate, no Event of Default exists under this Agreement, the Note or any other Loan Document or, if so, specifying the nature
and status of each such Event of Default and the action then being taken by Borrower or proposed to be taken to remedy such Event
of Default. Such financial statements shall contain such other information as shall be reasonably requested by Agent for purposes
of calculations to be made by Agent pursuant to the terms hereof.


 


(ii)         a
true, correct and complete rent roll for the Properties, dated as of the last month of such fiscal quarter (or month), showing
the percentage of gross leasable area of the Properties, if any, leased as of the last day of the preceding calendar quarter (or
month), the current annual rent for the Properties, the expiration date of each Lease, whether, with respect to any non-residential
Lease or Major Lease, to Borrower’s Knowledge any portion of the Properties has been sublet, and if it has, the name of the
subtenant, and such rent roll shall be accompanied by an Officer’s Certificate certifying that such rent roll is true, correct
and complete in all material respects as of its date and stating whether Borrower, within the past three (3) months, has issued
a notice of default with respect to any non-residential Lease or Major Lease which has not been cured and the nature of such default.


 


Notwithstanding
anything to the contrary above, Borrower may deliver such reports on a consolidated basis, provided that (i) appropriate notation
shall be made on such consolidated reports to indicate the separateness of Borrower and to indicate that Borrower’s assets
and credit are not available to satisfy the debts and other obligations of any other Person, and (ii) such assets shall be
listed on Borrower’s own separate balance sheet; and (3) Borrower will file its own tax returns (to the extent Borrower is
required to file any tax returns) and will not file a consolidated federal income tax return with any other Person.


 




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4.9.3      Annual
Reports. Borrower shall deliver to Agent:


 


(i)          Not
later than eighty-five (85) days after the end of each Fiscal Year of Borrower’s operations, unaudited financial statements,
internally prepared in accordance with an Acceptable Accounting Method, covering the Properties, including a balance sheet as of
the end of such year, a statement of revenues and expenses for such year and the fourth quarter thereof, and stating in comparative
form the figures for the previous Fiscal Year and the Annual Budget for such Fiscal Year, as well as the supplemental schedule
of net income or loss presenting the net income or loss for the Properties and occupancy statistics for the Properties. Such annual
financial statements shall be accompanied by an Officer’s Certificate in the form required pursuant to Section 4.9.2(i)
above;


 


(ii)         Not
later than one hundred twenty (120) days after the end of each Fiscal Year of Borrower’s operations, audited financial statements
certified by an Independent Accountant in accordance with an Acceptable Accounting Method, and, to the extent required under Section
9.1 hereof, the requirements of Regulation AB, covering the Properties, including a balance sheet as of the end of such year,
a statement of revenues and expenses for such year and the fourth quarter thereof, and stating in comparative form the figures
for the previous Fiscal Year and the Annual Budget for such Fiscal Year, as well as the supplemental schedule of net income or
loss presenting the net income or loss for such Property and occupancy statistics for such Property. Such annual financial statements
shall be in the form of an annual combined balance sheet of Borrower (and no other entities), together with the related combined
statements of operations, members’ capital and cash flows, including a combined balance sheet and statement of income for
the Properties on a combined basis and shall be accompanied by an Officer’s Certificate in the form required pursuant to
Section 4.9.2(i) above; and


 


(iii)        Not
later than ninety (90) days after the end of each Fiscal Year of Borrower’s operations, a consolidated annual summary of
any and all Capital Expenditures made at the Properties during the prior twelve (12) month period.


 


4.9.4      Other
Reports.


 


(a)          Borrower
shall, within ten (10) Business Days after request by Agent or, if all or part of the Loan is being or has been included in a Securitization,
by the Rating Agencies, furnish or cause to be furnished to Agent and, if applicable, the Rating Agencies, in such manner and in
such detail as may be reasonably requested by Agent or the Rating Agencies, such reasonable additional information as may be reasonably
requested with respect to the Properties.


 


(b)          Borrower
shall submit to Agent the financial data and financial statements required, and within the time periods required, under clauses
(f) and (g) of Section 9.1, if and when available.


 




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4.9.5       Annual
Budget.


 


(a)          Borrower
shall submit to Agent by November 15 of each year the Annual Budget relating to each Property for the succeeding Fiscal Year, or
the Borrower at its option shall submit by such date such Annual Budget for all the Properties in the aggregate. Agent shall have
the right to approve each Annual Budget (which approval shall not be unreasonably withheld so long as no Event of Default is continuing).
Annual Budgets approved by Agent shall hereinafter be referred to as an “Approved Annual Budget”. Until
such time that any Annual Budget has been approved by Agent, the prior Approved Annual Budget shall apply for all purposes hereunder
(with such adjustments as reasonably determined by Agent to reflect actual increases in Taxes, Insurance Premiums and utilities
expenses). Neither Borrower nor Manager shall change or modify the Annual Budget that has been approved by Agent without the prior
written consent of Agent.


 


(b)          Notwithstanding
anything to the contrary contained in this Section 4.9.5, provided no Event of Default is continuing, whenever Agent’s
approval or consent is required pursuant to the provisions of this Section 4.9.5, Agent’s approval or consent, as
the case may be, shall be deemed given if:


 


(i)          the
first correspondence from Borrower to Agent requesting such approval or consent is in an envelope marked “PRIORITY”
and contains a bold-faced, conspicuous (in a font size that is not less than fourteen (14)) legend at the top of the first page
thereof stating that “FIRST NOTICE: THIS IS A REQUEST FOR CONSENT UNDER THE LOAN BY DEUTSCHE BANK AG, NEW YORK
BRANCH, AS AGENT, TO 50 MURRAY STREET ACQUISITION LLC. FAILURE TO RESPOND TO THIS REQUEST WITHIN FIFTEEN (15) BUSINESS DAYS MAY
RESULT IN THE REQUEST BEING DEEMED GRANTED”, and is accompanied by the information and documents required above, and
any other information reasonably requested by Agent in writing prior to the expiration of such fifteen (15) Business Day period
in order to adequately review the same has been delivered; and


 


(ii)          if
Agent fails to respond or to deny such request for approval in writing within the first ten (10) Business Days of such fifteen
(15) Business Day period, a second notice requesting approval is delivered to Agent from Borrower in an envelope marked “PRIORITY”
containing a bold-faced, conspicuous (in a font size that is not less than fourteen (14)) legend at the top of the first page thereof
stating that “SECOND AND FINAL NOTICE: THIS IS A REQUEST FOR CONSENT UNDER THE LOAN BY DEUTSCHE BANK AG,
NEW YORK BRANCH, AS AGENT, TO 50 MURRAY STREET ACQUISITION LLC. IF YOU FAIL TO PROVIDE A SUBSTANTIVE RESPONSE (E.G., APPROVAL,
DENIAL OR REQUEST FOR CLARIFICATION OR MORE INFORMATION) TO THIS REQUEST FOR APPROVAL IN WRITING WITHIN FIVE (5) BUSINESS DAYS,
YOUR APPROVAL SHALL BE DEEMED GIVEN” and Agent fails to provide a substantive response to such request for approval within
such five (5) Business Day period.


 


4.9.6      Extraordinary
Operating Expenses. In the event that Borrower incurs an extraordinary operating expense not set forth in the Approved
Annual Budget relating to the Properties (each an “Extraordinary Operating Expense”), then Borrower
shall promptly deliver to Agent a reasonably detailed explanation of such proposed Extraordinary Operating Expense for Agent’s
approval. Any Extraordinary Operating Expense approved by Agent is referred to herein as an “Approved Extraordinary
Operating Expense”. Any Funds distributed to Borrower for the payment of Approved Extraordinary Operating Expenses
pursuant to Section 6.9.1 shall be used by Borrower only to pay for such Approved Extraordinary Operating Expenses or reimburse
Borrower for such Approved Extraordinary Operating Expenses, as applicable.


 




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4.9.7      Breach.
If Borrower fails to provide to Agent or its designee any of the financial statements, certificates, reports or information (the
“Required Records”) required by this Section 4.9 within thirty (30) days after the date upon
which such Required Record is due, Agent shall have the option, upon fifteen (15) days’ notice to Borrower, to gain access
to Borrower’s books and records and prepare or have prepared at Borrower’s expense, any Required Records not delivered
by Borrower.


 


Section 4.10        Access
to Properties. Subject to the rights of Tenants under Leases, Borrower shall permit agents, representatives, consultants
and employees of Agent to perform non-invasive inspections at the Properties or any part thereof during normal business hours
upon reasonable advance notice (which may be given orally).


 


Section 4.11        Leases.


 


4.11.1    Generally.
Upon request, Borrower shall furnish Agent with executed copies of all Leases then in effect. All renewals of Leases and all proposed
leases shall provide for rental rates and terms reasonably comparable to existing local market rates and shall be arm’s
length transactions with bona fide, independent third-party Tenants, provided, however, Borrower may enter into up to five (5)
new Leases or renewal Leases with Affiliates of Borrower or of Guarantor or with an on-site property manager provided that each
such new Lease or renewal Lease is on terms reasonably comparable to existing local market rates (“Permitted Affiliate
Residential Leases”). Within ten (10) days after the execution of a non-residential Lease or any renewals, amendments
or modification of a non-residential Lease, Borrower shall deliver to Agent a copy thereof, together with Borrower’s certification
that such commercial Lease (or such renewal, amendment or modification) was entered into in accordance with the terms of this
Agreement.


 


4.11.2    Approvals.


 


(a)          With
respect to residential Leases:


 


(i)          Subject
to Section 4.11.2(e) below, Borrower shall not enter into a proposed Major Lease or a proposed renewal, extension or modification
of an existing Major Lease without the prior written consent of Agent, which consent shall not be unreasonably withheld.


 


(ii)         Provided
that no Event of Default is continuing, renewals, amendments and modifications of existing Leases and proposed leases, shall not
be subject to the prior approval of Agent provided (i) the proposed lease would not be a Major Lease or the existing Lease
as amended or modified or the renewal Lease would not be a Major Lease and (ii) the Lease as amended or modified or the renewal
Lease or series of leases or proposed lease or series of leases: (A) shall be written substantially in accordance with the standard
form of residential Lease which shall have been approved by Agent, (B) shall provide for net effective rental rates reasonably
comparable to existing local market rates or as required pursuant to applicable Legal Requirements, (C) shall not contain
any option to purchase, any right of first refusal to purchase, any right to terminate (except in the event of the destruction
or condemnation of substantially all of the applicable Property), any requirement for a non-disturbance or recognition agreement,
or any other provision which might adversely affect the rights of Agent or any Lender under the Loan Documents in any material
respect, and (D) shall have a term (together with all extensions and renewal options) of not less than six (6) months nor more
than two (2) years; provided, however, with respect to any month-to-month holdover Lease, such Lease may be permitted to holdover
for a total aggregate period of up to four (4) months without the prior approval of Agent. Upon Agent’s request, which, unless
an Event of Default is continuing, Agent may make no more than three times in any twelve (12)-month period, Borrower shall deliver
to Agent copies of all Leases which are entered into pursuant to the preceding sentence and which have not been previously delivered
to Agent together with Borrower’s certification that it has satisfied all of the conditions of the preceding sentence within
fifteen (15) days after Agent’s request for a copy of such Lease.


 




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(b)          With
respect to non-residential Leases, any Lease and any renewals, amendments or modification of a Lease (provided such Lease or Lease
renewal, amendment or modification is not a Major Lease or a renewal, amendment or modification to a Major Lease, unless such renewal,
amendment or modification is made unilaterally in accordance with an express provision of such Lease) that meets the following
requirements may be entered into by Borrower without Agent’s prior consent: (i) provides for economic terms, including
rental rates, reasonably comparable to existing local market rates for similar properties and is otherwise on commercially reasonable
terms, (ii) has a term (together with all extension and renewal options) of not less than three (3) years or more than
ten (10) years, (iii) unless a subordination, non-disturbance and attornment agreement is delivered pursuant to this Section
4.11.2, provides that such Lease is subordinate to the Mortgage and Assignment of Leases and that the Tenant thereunder will
attorn to Agent and any purchaser at a foreclosure sale, provided, with respect to Major Leases, such subordination and attornment
may be conditioned upon receipt of a signed subordination, non-disturbance and attornment agreement from Agent on Agent’s
standard form (with such changes approved by Agent) or such other form reasonably acceptable to Agent (and such subordination,
non-disturbance and attornment agreement shall be at Borrower’s sole cost and expense), (iv) is with Tenants that are creditworthy,
in the reasonable business judgment of Borrower, (v) is not with an Affiliate of Borrower or Guarantor, and (vi) does not
contain any option to purchase, any right of first refusal to purchase, any right to terminate (except if such termination right
is triggered by the destruction or condemnation of substantially all of the Property, or the failure to complete tenant improvements
within the proscribed time period) or any other terms which would have a Material Adverse Effect. All other non-residential Leases
(including Major Leases) and all renewals, amendments and modifications thereof executed after the date hereof shall be subject
to Agent’s prior approval, such approval, so long as there is no Event of Default continuing, shall not be unreasonably withheld
or delayed.


 


(c)          Borrower
shall not permit or consent to any assignment or sublease of any Major Lease without Agent’s prior written approval (other
than assignments or subleases expressly permitted under any Major Lease pursuant to a unilateral right of the Tenant thereunder
not requiring the consent of Borrower), which approval shall not be unreasonably withheld. Agent, at Borrower’s sole cost
and expense, shall execute and deliver its standard form of subordination, non-disturbance and attornment agreement to Tenants
under any future Major Lease approved by Agent upon request, with such commercially reasonable changes as may be requested by such
Tenants and which are acceptable to Agent in Agent’s reasonable discretion.


 




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(d)          Borrower
shall have the right, without the consent or approval of Agent, to terminate or accept a surrender of any Lease that is not a Major
Lease so long as such termination or surrender is (A) (i) by reason of a tenant default and (ii) in a commercially reasonable
manner to preserve and protect the applicable Property or (B) with respect to residential Leases that are not with Affiliates of
Borrower or Guarantor, provided that no Trigger Period is then continuing, (i) the aggregate amount of Leases being terminated
without the consent or approval of Agent for the trailing twelve (12) month period shall be no more than twenty (20) units, (ii) such
termination is in the reasonable business judgment of Borrower and (iii) such termination or surrender would not result in
a Low Debt Yield Period.


 


(e)          Notwithstanding
anything to the contrary contained in this Section 4.11.2 or in clauses (ii) and (v) of Section 4.11.3, provided
no Event of Default is continuing, whenever Agent’s approval or consent is required pursuant to the provisions of this Section
4.11.2, Agent’s approval or consent, as the case may be, shall be deemed given if:


 


(i)          the
first correspondence from Borrower to Agent requesting such approval or consent is in an envelope marked “PRIORITY”
and contains a bold-faced, conspicuous (in a font size that is not less than fourteen (14)) legend at the top of the first page
thereof stating that “FIRST NOTICE: THIS IS A REQUEST FOR CONSENT UNDER THE LOAN BY DEUTSCHE BANK AG, NEW YORK
BRANCH, AS AGENT, TO 50 MURRAY STREET ACQUISITION LLC. FAILURE TO RESPOND TO THIS REQUEST WITHIN FIFTEEN (15) BUSINESS DAYS MAY
RESULT IN THE REQUEST BEING DEEMED GRANTED”, and is accompanied by the information and documents required above, and
any other information reasonably requested by Agent in writing prior to the expiration of such fifteen (15) Business Day period
in order to adequately review the same has been delivered; and


 


(ii)         if
Agent fails to respond or to deny such request for approval in writing within the first ten (10) Business Days of such fifteen
(15) Business Day period, a second notice requesting approval is delivered to Agent from Borrower in an envelope marked “PRIORITY”
containing a bold-faced, conspicuous (in a font size that is not less than fourteen (14)) legend at the top of the first page thereof
stating that “SECOND AND FINAL NOTICE: THIS IS A REQUEST FOR CONSENT UNDER THE LOAN BY DEUTSCHE BANK AG,
NEW YORK BRANCH, AS AGENT, TO 50 MURRAY STREET ACQUISITION LLC. IF YOU FAIL TO PROVIDE A SUBSTANTIVE RESPONSE (E.G., APPROVAL,
DENIAL OR REQUEST FOR CLARIFICATION OR MORE INFORMATION) TO THIS REQUEST FOR APPROVAL IN WRITING WITHIN FIVE (5) BUSINESS DAYS,
YOUR APPROVAL SHALL BE DEEMED GIVEN” and Agent fails to provide a substantive response to such request for approval within
such five (5) Business Day period.


 


4.11.3    Covenants.
Borrower (i) shall observe and perform the obligations imposed upon the lessor under the Leases in all material respects
and in a commercially reasonable manner; (ii) shall enforce the terms, covenants and conditions contained in the Leases upon
the part of the Tenants thereunder to be observed or performed in a commercially reasonable manner, provided, however, Borrower
shall not terminate or accept a surrender of a Major Lease without Agent’s prior approval, which approval shall not be unreasonably
withheld; (iii) shall not collect any of the Rents more than one (1) month in advance (other than security deposits
and the payment of the last month’s rent under residential Leases); (iv) shall not execute any assignment of lessor’s
interest in the Leases or the Rents (except as contemplated by the Loan Documents); and (v) unless otherwise permitted in
accordance with Section 4.11.2(a), (b), (c) or (d), other than with respect to residential Leases in the ordinary course
of business, shall not alter, modify or change any Lease so as to change the amount of or payment date for rent, change the expiration
date, grant any option for additional space or term, materially reduce the obligations of the Tenant or increase the obligations
of the lessor without Agent’s prior approval, which approval shall not be unreasonably withheld. Borrower shall promptly
send copies to Agent of all written notices of material default which Borrower shall receive under the Leases.


 




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4.11.4    Security
Deposits. All security deposits of Tenants, whether held in cash or any other form, shall be held in compliance with all
Legal Requirements, and shall not be commingled with any other funds of Borrower. During the continuance of an Event of Default,
Borrower shall, within five (5) Business Days of Agent’s request, if permitted by applicable Legal Requirements, cause all
such security deposits (and any interest theretofore earned thereon) to be transferred into the Deposit Account (which shall then
be held by Deposit Bank in a separate Account), which shall be held by Deposit Bank subject to the terms of the Leases. With respect
to commercial Leases or residential Major Leases, any bond or other instrument which Borrower is permitted to hold in lieu of
cash security deposits under any applicable Legal Requirements (i) shall be maintained in full force and effect in the full
amount of such deposits unless replaced by cash deposits as herein above described, (ii) shall be issued by an institution
reasonably satisfactory to Agent, (iii) shall, if permitted pursuant to any Legal Requirements, name Agent as payee or mortgagee
thereunder (or at Agent’s option, be fully assignable to Agent), and (iv) shall in all respects comply with any applicable
Legal Requirements and otherwise be reasonably acceptable to Agent. Borrower shall, upon request (which, unless an Event of Default
is continuing, shall not be required to be given more than twice in any twelve (12)-month period), provide Agent with evidence
reasonably acceptable to Agent of Borrower’s compliance with the foregoing.


 


Section 4.12        Repairs;
Maintenance and Compliance; Alterations.


 


4.12.1    Repairs;
Maintenance and Compliance. Borrower shall at all times maintain, preserve and protect all franchises and trade names,
and Borrower shall cause the Properties to be maintained in a good and safe condition and repair and shall not remove, demolish
or alter the Improvements or Equipment (except for alterations performed in accordance with Section 4.12.2 below and
normal replacement of Equipment with Equipment of equivalent value and functionality). Borrower shall promptly comply with all
Legal Requirements and promptly cure properly any violation of a Legal Requirement (it being understood that, with respect to
RPTL Tax Benefits Law and Rent Regulation Laws, compliance with Section 4.33 shall constitute compliance with Legal Requirements
hereunder). After prior notice to Agent, Borrower, at its own expense, may contest by appropriate legal proceeding, promptly initiated
and conducted in good faith and with due diligence, the need to cure any such violation of Legal Requirements, provided that (i) no
Event of Default has occurred and is continuing; (ii) such proceeding shall be permitted under and be conducted in accordance
with all applicable statutes, laws and ordinances; (iii) neither the applicable Property nor any part thereof or interest
therein will be in imminent danger of being sold, forfeited, terminated, canceled or lost; (iv) Borrower shall promptly upon final
determination thereof complete such cure, together with all costs, interest and penalties which may be payable in connection therewith;
(v) as may reasonably be requested by Agent, Borrower shall deliver to Agent either (A) cash, or other security as may be reasonably
acceptable to Agent, in an amount equal to one hundred ten percent (110%) of the costs necessary to cure such violation or (B)
a payment and performance bond in an amount equal to one hundred percent (100%) of the costs necessary to cure such violation
from a surety acceptable to Agent in its reasonable discretion, (vi) failure to cure such violation will not subject Agent
or any Lender to any civil or criminal liability, (vii) such contest shall not affect the ownership, use or occupancy of
the applicable Property, and (viii) Borrower shall, upon request by Agent, give Agent prompt notice of the status of such
proceedings and/or confirmation of the continuing satisfaction of the conditions set forth in clauses (i) through (vii)
of this Section 4.12.1. Agent may pay over any such cash or other security held by Agent to cure such violation at
any time when, in the reasonable judgment of Agent, the validity of the violation is established or the applicable Property (or
any part thereof or interest therein) shall be in imminent danger of being sold, forfeited, terminated, cancelled or lost or there
shall be any imminent danger of the Lien of the Mortgage secured by such Property being primed by due to such violation. Borrower
shall notify Agent in writing within two (2) Business Days after Borrower first receives notice of any such non-compliance. Borrower
shall promptly repair, replace or rebuild any part of any Property that becomes damaged, worn or dilapidated and shall complete
and pay for any Improvements at any time in the process of construction or repair.


 




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4.12.2    Alterations.


 


(a)          Borrower
may, without Agent’s consent, perform alterations to the Improvements and Equipment which (i) do not constitute a Material
Alteration, (ii) do not adversely affect Borrower’s financial condition or the value or net operating income of such
Property and (iii) are in the ordinary course of Borrower’s business. Borrower shall not perform any Material Alteration
without Agent’s prior written consent. Agent may, as a condition to giving its consent to a Material Alteration, require
that Borrower delivers to Agent security for payment of the cost of such Material Alteration and as additional security for Borrower’s
Obligations under the Loan Documents, which security may be any of the following: (i) cash, (ii) a Letter of Credit,
(iii) U.S. Obligations, (iv) other securities acceptable to Agent, provided that Agent shall have received a Rating Agency
Confirmation as to the form and issuer of same, or (v) a completion bond. Such security shall be in an amount equal to the
excess of the total unpaid amounts incurred and to be incurred with respect to such alterations to the Improvements (other than
such amounts to be paid or reimbursed by Tenants under the Leases) over the Alteration Threshold for such Property, and Agent may
apply such security from time to time at the option of Agent to pay for such alterations. Agent hereby consents to the Required
Repairs. Upon substantial completion of any Material Alteration, Borrower shall provide evidence satisfactory to Agent that (i) the
Material Alteration was constructed in accordance with applicable Legal Requirements, (ii) all contractors, subcontractors,
materialmen and professionals who provided work, materials or services in connection with the Material Alteration have been paid
in full and have delivered unconditional releases of liens, and (iii) all material licenses and permits necessary for the
use, operation and occupancy (which may be temporary or permanent) of the Material Alteration (other than those which depend on
the performance of tenant improvement work) have been issued. If Borrower has provided cash security, as provided above, such cash
shall be released by Agent to fund such Material Alterations, and if Borrower has provided non-cash security, as provided above,
except to the extent applied by Agent to fund such Material Alterations, Agent shall release and return such security upon Borrower’s
satisfaction of the requirements of the preceding sentence.


 




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(b)          Notwithstanding
anything to the contrary contained in this Section 4.12.2, provided no Event of Default is continuing, whenever Agent’s
approval or consent is required pursuant to the provisions of this Section 4.12.2, Agent’s approval or consent, as
the case may be, shall be deemed given if:


 


(i)          the
first correspondence from Borrower to Agent requesting such approval or consent is in an envelope marked “PRIORITY”
and contains a bold-faced, conspicuous (in a font size that is not less than fourteen (14)) legend at the top of the first page
thereof stating that “FIRST NOTICE (MATERIAL ALTERATION): THIS IS A REQUEST FOR CONSENT (MATERIAL ALTERATION) UNDER
THE LOAN BY DEUTSCHE BANK AG, NEW YORK BRANCH, AS AGENT, TO 50 MURRAY STREET ACQUISITION LLC. FAILURE TO RESPOND TO THIS REQUEST
WITHIN THIRTY (30) BUSINESS DAYS MAY RESULT IN THE REQUEST BEING DEEMED GRANTED”, and is accompanied by the information
and documents required above, and any other information reasonably requested by Agent in writing prior to the expiration of such
thirty (30) Business Day period in order to adequately review the same has been delivered;


 


(ii)         if
Agent fails to respond or to deny such request for approval in writing within the first twenty (20) Business Days of such thirty
(30) Business Day period, a second notice requesting approval is delivered to Agent from Borrower in an envelope marked “PRIORITY”
containing a bold-faced, conspicuous (in a font size that is not less than fourteen (14)) legend at the top of the first page thereof
stating that “SECOND AND FINAL NOTICE (MATERIAL ALTERATION): THIS IS A REQUEST FOR CONSENT (MATERIAL ALTERATION)
UNDER THE LOAN BY DEUTSCHE BANK AG, NEW YORK BRANCH, AS AGENT, TO 50 MURRAY STREET ACQUISITION LLC. IF YOU FAIL TO PROVIDE A SUBSTANTIVE
RESPONSE (E.G., APPROVAL, DENIAL OR REQUEST FOR CLARIFICATION OR MORE INFORMATION) TO THIS REQUEST FOR APPROVAL IN WRITING WITHIN
TEN (10) BUSINESS DAYS, YOUR APPROVAL SHALL BE DEEMED GIVEN” and Agent fails to provide a substantive response to such
request for approval within such ten (10) Business Day period; and


 


(iii)        Borrower
shall have delivered such security for the payment of the cost of such Material Alteration and as additional security for Borrower’s
Obligations under the Loan Documents as required in accordance with clause (a) of this Section 4.12.2.


 


Section 4.13        Approval
of Major Contracts. Borrower shall be required to obtain Agent’s prior written approval of any and all Major Contracts
affecting any Property, which approval shall not be unreasonably withheld. Borrower and, with respect to the Properties, Manager
shall comply with all applicable labor and employment laws relating to employees and independent contractors and with the Union
Contract, and shall make all payments provided for under the Union Contract when due.


 




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Section 4.14        Property
Management.


 


4.14.1    Management
Agreement. Borrower shall (i) cause Manager to manage the Property owned by it in accordance with a Management
Agreement, (ii) diligently perform and observe in all material respects all of the terms, covenants and conditions of such
Management Agreement on the part of Borrower to be performed and observed, (iii) promptly notify Agent of any material default
under such Management Agreement of which it has knowledge and deliver a copy of any default notice sent to Manager, (iv) promptly
deliver to Agent a copy of each financial statement, business plan, capital expenditures plan, report and estimate received by
it under such Management Agreement, and (v) promptly enforce the performance and observance of all of the material covenants
required to be performed and observed by Manager under its Management Agreement in a commercially reasonable manner. If Borrower
shall default in the performance or observance of any material term, covenant or condition of its Management Agreement on the
part of Borrower to be performed or observed beyond the expiration of any applicable grace or cure period, then, without limiting
Agent’s other rights or remedies under this Agreement or the other Loan Documents, and without waiving or releasing Borrower
from any of its Obligations hereunder or under its Management Agreement, Agent shall have the right, but shall be under no obligation,
to pay any sums and to perform any act as may be appropriate to cause all the material terms, covenants and conditions of such
Management Agreement on the part of Borrower to be performed or observed.


 


4.14.2    Prohibition
Against Termination or Modification. Borrower shall not (i) surrender, terminate, cancel, modify, renew or
extend its Management Agreement, (ii) enter into any other agreement relating to the management or operation of the Property
owned by it with Manager or any other Person, (iii) consent to the assignment by the Manager of its interest under any Management
Agreement, or (iv) waive or release any of its rights and remedies under any Management Agreement, in each case without the
express consent of Agent, which consent shall not be unreasonably withheld; provided, however, with respect to a new property
manager such consent may be conditioned upon Borrower delivering a Rating Agency Confirmation from each applicable rating agency
as to such new property manager and management agreement. Notwithstanding the foregoing, however, provided no Event of Default
is continuing, the approval of Agent and the Rating Agencies shall not be required with respect to the appointment of a Qualified
Manager. If at any time Agent consents to the appointment of a new property manager or a Qualified Manager is appointed, such
new property manager (including a Qualified Manager) and Borrower shall, as a condition of Agent’s consent, execute (i) a
management agreement in form and substance reasonably acceptable to Agent, (ii) a subordination of management agreement in
a form reasonably acceptable to Agent and (iii) deliver an updated Insolvency Opinion if such manager is an Affiliate of Borrower,
Guarantor or Key Principal.


 


4.14.3    Replacement
of Manager. Agent shall have the right to require Borrower to replace the Manager with (x) a Qualified Manager selected
by Borrower or (y) another property manager chosen by Borrower and approved by Agent (provided, that such approval may be conditioned
upon Borrower delivering a Rating Agency Confirmation as to such new property manager and management agreement) upon the occurrence
of any one or more of the following events: (i) at any time following the occurrence and during the continuance of an Event
of Default, (ii) if Manager shall be in material default under any Management Agreement beyond any applicable notice and
cure period, (iii) if Manager shall become insolvent or a debtor in any bankruptcy or insolvency proceeding, or (iv) if
at any time the Manager has engaged in gross negligence, fraud, willful misconduct or misappropriation of funds.


 




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Section 4.15        Performance
by Borrower; Compliance with Agreements.


 


(a)          Borrower
shall in a timely manner and in all material respects observe, perform and fulfill each and every covenant, term and provision
of each Loan Document executed and delivered by, or applicable to, Borrower, and shall not enter into or otherwise suffer or permit
any amendment, waiver, supplement, termination or other modification of any Loan Document executed and delivered by, or applicable
to, Borrower without the prior consent of Agent.


 


(b)          Borrower
shall at all times comply in all material respects with all Operations Agreements. Borrower agrees that without the prior written
consent of Agent, which consent shall not be unreasonably withheld, Borrower will not amend, modify or terminate any of the Operations
Agreements.


 


Section 4.16        Licenses;
Intellectual Property; Website.


 


4.16.1    Licenses.
Borrower shall keep and maintain all Licenses necessary for the operation of the Properties as a multifamily residential facility
and commercial property. Borrower shall not transfer any Licenses required for the operation of Properties.


 


4.16.2    Intellectual
Property. Borrower shall keep and maintain all Intellectual Property relating to the use or operation of the Properties
and all Intellectual Property shall be held by and (if applicable) registered in the name of Borrower. Borrower shall not Transfer
or let lapse any Intellectual Property without Agent’s prior consent, which consent shall not be unreasonably withheld.


 


4.16.3    Website.
Any website with respect to any Property (other than Tenant websites) shall be maintained by or on behalf of the Borrower that
owns such Property and any such website shall be registered in the name of Borrower within ten (10) Business Days after the Closing
Date, or such additional time as necessary provided that Borrower is using commercially reasonable efforts to register such website
in Borrower’s name. Borrower shall not Transfer any such website without Agent’s prior consent, which consent shall
not be unreasonably withheld.


 


Section 4.17        Further
Assurances. Borrower shall, at Borrower’s sole cost and expense:


 


(a)          furnish
to Agent all instruments, documents, boundary surveys, footing or foundation surveys, certificates, plans and specifications, appraisals,
title and other insurance reports and agreements, 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 Agent in connection
therewith;


 


(b)          cure
any defects in the execution and delivery of the Loan Documents and execute and deliver, or cause to be executed and delivered,
to Agent such documents, instruments, certificates, assignments and other writings, and do such other acts reasonably necessary
or desirable, to correct any omissions in the Loan Documents, to evidence, preserve and/or protect the collateral at any time securing
or intended to secure the Obligations, as Agent may reasonably require;


 




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(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 Agent may reasonably require from time to time.
Notwithstanding the foregoing, in no event shall Borrower be required to take any action pursuant to this Section 4.17 that
materially increases the obligations or decreases the rights of Borrower or Guarantor under the Loan Documents unless such action
is to cure a defect or correct any omission, such that the action provides Agent with the benefit of its bargain under this Agreement
or the other Loan Documents; and


 


(d)          do,
execute, acknowledge and deliver all and every such further acts, deeds, conveyances, deeds of trust, mortgages, assignments, notices
of assignments, transfers and assurances (which shall be in form and substance reasonably acceptable to Agent) as Agent shall,
from time to time, reasonably require, for the better assuring, conveying, assigning, transferring, and confirming unto Agent the
property and rights mortgaged, deeded, granted, bargained, sold, conveyed, confirmed, pledged, assigned, warranted and transferred
or intended now or hereafter so to be, or which Borrower may be or may hereafter become bound to convey or assign to Agent, or
for carrying out the intention or facilitating the performance of the terms of the Mortgage or for filing, registering or recording
the Mortgage, or for complying with all Legal Requirements in all material respects. Borrower, if reasonably requested by Agent,
will execute and deliver, and hereby authorizes Agent, following ten (10) days notice to Borrower and Borrower’s failure
to comply within such ten (10) day period, to execute in the name of Borrower or without the signature of Borrower to the extent
Agent may lawfully do so, one or more financing statements to evidence more effectively the security interest of Agent (on behalf
of Lenders) in any Property. Upon the occurrence and during the continuance of an Event of Default, Borrower grants to Agent an
irrevocable power of attorney coupled with an interest for the purpose of exercising and perfecting any and all rights and remedies
available to Agent at law and in equity, including, without limitation, such rights and remedies available to Agent pursuant to
this Section 4.17.


 


Section 4.18        Estoppel
Statement.


 


(a)          After
request by Agent, Borrower shall within ten (10) Business Days furnish Agent with a statement, duly acknowledged and certified,
stating (i) the Outstanding Principal Balance of the Note, (ii) the Interest Rate, (iii) the date installments of
interest and/or principal were last paid, (iv) any offsets or defenses to the payment and performance of the Obligations,
if any, which are within Borrower’s Knowledge as of the date of such statement and (v) that this Agreement and the other
Loan Documents have not been modified or if modified, giving particulars of such modification. Except during the continuance of
an Event of Default or prior to the full Securitization of the Loan, Borrower shall not be required to provide such statement more
than twice in any twelve (12)-month period.


 


(b)          Borrower
shall use commercially reasonable efforts to obtain and deliver to Agent, as promptly as possible following Agent’s request,
an estoppel certificate from each Tenant under any Lease (provided that Borrower shall only be required to use commercially reasonable
efforts to obtain an estoppel certificate from any Tenant not required to provide an estoppel certificate under its Lease) in the
form of Schedule VIII attached hereto or in such other form reasonably acceptable to Agent; provided, that Borrower
shall not be required to obtain and deliver such certificates more frequently than three (3) times in any calendar year.


 




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(c)          Borrower
shall use commercially reasonable efforts to obtain and deliver to Agent, upon request, estoppel certificates from each party under
any Operations Agreement, in form and substance reasonably satisfactory to Agent; provided, that Borrower shall not be required
to deliver such certificates more than three (3) times during the Term and not more frequently than once per calendar year
(or twice during any calendar year in which a Securitization occurs).


 


Section 4.19        Notice
of Default. Borrower shall promptly advise Agent of the occurrence of any Event of Default of which Borrower has knowledge.


 


Section 4.20        Cooperate
in Legal Proceedings. Borrower shall cooperate in a commercially reasonable manner with Agent with respect to any proceedings
before any court, board or other Governmental Authority which may in any way affect the rights of Agent or any Lender hereunder
or any rights obtained by Agent or any Lender under any of the other Loan Documents and, in connection therewith, permit Agent,
at its election, to participate in any such proceedings.


 


Section 4.21        Indebtedness.
Borrower shall not directly or indirectly create, incur or assume any indebtedness other than (i) the Debt and (ii) unsecured
trade payables incurred in the ordinary course of business relating to the ownership and operation of the Properties and (iii) Permitted
Equipment Financing (hereinafter defined), which in the case of such unsecured trade payables and Permitted Equipment Financing
(A) are not evidenced by a note, (B) do not exceed, at any time, a maximum aggregate amount of three percent (3%) of the Allocated
Loan Amount of the Property to which such unsecured trade payable or Permitted Equipment Financing relates or of the original
amount of the Loan and (C) are paid within sixty (60) days of the date incurred (collectively, “Permitted Indebtedness”).
As used herein, “Permitted Equipment Financing” means equipment financing that is (i) entered into
in the ordinary course of Borrower’s business, (ii) for equipment related to the ownership and operation of any Property
whose removal would not materially damage or impair the value of such Property, and (iii) which is secured only by the financed
equipment.


 


Section 4.22        Business
and Operations. Borrower will continue to engage in the businesses presently conducted by it in all material respects
as and to the extent the same are reasonably necessary in Borrower’s commercially reasonable judgment for the ownership,
maintenance, management and operation of the Properties. 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.


 


Section 4.23        Dissolution.
Borrower shall not (i) engage in any dissolution, liquidation or consolidation or merger with or into any other business
entity, (ii) engage in any business activity not related to the ownership and operation of the Property, (iii) transfer,
lease or sell, in one transaction or any combination of transactions, all or substantially all of the property or assets of Borrower
except to the extent expressly permitted by the Loan Documents, or (iv) cause, permit or suffer Borrower to (A) dissolve,
wind up or liquidate or take any action, or omit to take any action, as a result of which Borrower would be dissolved, wound up
or liquidated in whole or in part, or (B) amend, modify, waive or terminate the certificate of formation or operating agreement
of Borrower, in each case without obtaining the prior consent of Agent.


 




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Section 4.24        Debt
Cancellation. Borrower shall not cancel or otherwise forgive or release any claim or debt (other than the termination
of Leases in accordance herewith or any claim or debt less than or equal to $50,000, but no more than $150,000 in the aggregate
per any twelve (12) month period) owed to Borrower by any Person, except for adequate consideration and in the ordinary course
of Borrower’s business.


 


Section 4.25        Affiliate
Transactions. Other than with respect to the Clipper Management Agreement, Borrower shall not enter into, or be a party
to, any transaction with an Affiliate of Borrower or any of the partners, members or shareholders, as applicable, of Borrower
except in the ordinary course of business and on terms which are no less favorable to Borrower or such Affiliate than would be
obtained in a comparable arm’s-length transaction with an unrelated third party.


 


Section 4.26        No
Joint Assessment. Borrower shall not suffer, permit or initiate the joint assessment of any Property (i) with any
other real property constituting a tax lot separate from such Property, and (ii) with any portion of such 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 Property.


 


Section 4.27        Principal
Place of Business. Borrower shall not change its principal place of business from the address set forth on the first page
of this Agreement without first giving Agent thirty (30) days prior written notice.


 


Section 4.28        Change
of Name, Identity or Structure. Borrower shall not change its name, identity (including its trade name or names) or, except
as permitted by Article 7 hereof, convert from its current organizational structure without notifying Agent of such change
in writing at least thirty (30) days prior to the effective date of such change and without first obtaining the prior written
consent of Agent; provided, however, that Borrower shall at all times be a Delaware limited liability company or a Delaware limited
partnership. Borrower shall deliver to Agent, prior to or contemporaneously with the effective date of any such change, any financing
statement or financing statement change required by Agent to establish or maintain the validity, perfection and priority of the
security interest granted herein. At the request of Agent, Borrower shall execute a certificate in form satisfactory to Agent
listing the trade names under which Borrower intends to operate the Properties, and representing and warranting that Borrower
does business under no other trade name with respect to the Properties.


 




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Section 4.29        Costs
and Expenses.


 


(a)          Except
as otherwise expressed herein or in any of the other Loan Documents, Borrower shall pay or, if Borrower fails to pay, reimburse
Agent and Lenders upon receipt of notice from Agent, for all out-of-pocket costs and expenses (including reasonable attorneys’
fees and disbursements) incurred by Agent and Lenders in connection with (i) Borrower’s ongoing performance of and compliance
with Borrower’s 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 confirming compliance with environmental and insurance requirements (except
to the extent expressly set forth in Section 10.21(a) hereof); (ii) Agent’s and Lenders’ ongoing performance
of and compliance with all 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 (except to the extent expressly set forth in Section 10.21(a) hereof);
(iii) the negotiation, preparation, execution and delivery of any consents, amendments, waivers or other modifications to
this Agreement and the other Loan Documents and any other documents or matters requested by Borrower; (iv) filing and recording
of any Loan Documents; (v) title insurance, surveys, inspections and appraisals that Agent is authorized to obtain by the
terms of the Loan Documents; (vi) the creation, perfection or protection of Agent’s and Lenders’ Liens in the
Properties and the Accounts (including out-of-pocket fees and expenses for title and lien searches, intangibles taxes, personal
property taxes, mortgage recording taxes, due diligence expenses, travel expenses, accounting firm fees, costs of appraisals, environmental
reports and Agent’s Consultant, surveys and engineering reports); (vii) enforcing or preserving any rights in response
to third party claims or the prosecuting or defending of any action or proceeding or other litigation, in each case against, under
or affecting Borrower, the Loan Documents, any Property, or any other security given for the Loan; (viii) fees charged by
Servicer (except to the extent expressly set forth in Section 10.21) or, if a Securitization has occurred, the Rating
Agencies in connection with the Loan or any modification thereof; and (ix) enforcing any Obligations of or collecting any
payments due from Borrower under this Agreement, the other Loan Documents or with respect to any Property 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 (including actual fees and expenses for title and lien searches, intangible taxes,
personal property taxes, mortgage recording taxes, due diligence expenses, travel expenses, accounting firm fees, costs of appraisals,
environmental reports and Agent’s Consultant, surveys and engineering reports); 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 Agent.


 


(b)          In
addition, in connection with any Rating Agency Confirmation, Review Waiver or other Rating Agency consent, approval or review requested
or required hereunder (other than the initial review of the Loan by the Rating Agencies in connection with a Securitization), Borrower
shall pay all of the actual costs and expenses of Agent, Lenders, Servicer and each Rating Agency in connection therewith, and,
if applicable, shall pay any actual fees imposed by any Rating Agency in connection therewith.


 


(c)          Any
costs and expenses due and payable by Borrower hereunder which are not paid by Borrower within ten (10) days after demand may be
paid from any amounts in the Deposit Account, with notice thereof to Borrower. The obligations and liabilities of Borrower under
this Section 4.29 shall (i) become part of the Obligations, (ii) be secured by the Loan Documents and (iii) survive
the Term and the exercise by Agent of any of its rights or remedies under the Loan Documents, including the acquisition of the
Properties by foreclosure or a conveyance in lieu of foreclosure.


 




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Section 4.30       Indemnity.
Borrower shall indemnify, defend and hold harmless Agent and Lenders from and against any and all actual liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements of any kind or nature whatsoever
(including the reasonable fees and disbursements of counsel for Agent and Lenders in connection with any investigative, administrative
or judicial proceeding commenced or threatened, whether or not Agent and/or any Lender shall be designated a party thereto), that
may be imposed on, incurred by, or asserted against Agent or any Lender in any manner 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; (ii) the use or intended use of the proceeds of the Loan; (iii) the Borrower Provided Information;
(iv) ownership of the Mortgage, the Property or any interest therein, or receipt of any Rents (including due to any Increased
Costs, Special Taxes or Other Taxes but excluding due to compliance with bank regulatory requirements or similar Lender compliance);
(v) any accident, injury to or death of persons or loss of or damage to property occurring in, on or about any Property or
on the adjoining sidewalks, curbs, adjacent property or adjacent parking areas, streets or ways; (vi) any use, nonuse or
condition in, on or about any Property or on adjoining sidewalks, curbs, adjacent property or adjacent parking areas, streets
or ways; (vii) performance of any labor or services or the furnishing of any materials or other property in respect of any
Property; (viii) any failure of any Property to comply with any Legal Requirement (it being understood that with respect
to environmental Legal Requirements, the Environmental Indemnity shall govern); (ix) any claim by brokers, finders or similar
persons claiming to be entitled to a commission in connection with any Lease or other transaction involving any Property or any
part thereof, or any liability asserted against Agent or any Lender with respect thereto; and (x) the claims of any lessee
of any portion of any Property or any Person acting through or under any lessee or otherwise arising under or as a consequence
of any Lease (collectively, the “Indemnified Liabilities”); provided, however, that Borrower shall not
have any obligation to Agent and Lenders hereunder to the extent that such Indemnified Liabilities arise from the gross negligence,
illegal acts, fraud or willful misconduct of Agent and/or any Lender, as applicable. 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 Agent and Lenders.


 


Section 4.31        ERISA.


 


(a)          Borrower
shall not engage in any transaction which would cause any obligation, or action taken or to be taken, hereunder (or the exercise
by Agent, any Lender or any assignee of any of its rights under the Note, this Agreement or the other Loan Documents) to be a non-exempt
(under a statutory or administrative class exemption) prohibited transaction under the Employee Retirement Income Security Act
of 1974, as amended (“ERISA”) or Section 4975 of the Code.


 


(b)          Borrower
shall not permit the assets of Borrower to become “plan assets,” within the meaning of 29 C.F.R. 2510.3-101, as modified
in application by Section 3(42) of ERISA.


 


(c)          Borrower
shall deliver to Agent such certifications or other evidence from time to time throughout the Term, as reasonably requested by
Agent, that (A) Borrower and Guarantor are not an “employee benefit plan” as defined in Section 3(3) of ERISA,
which is subject to Title I of ERISA, or a “governmental plan” within the meaning of Section 3(32) of ERISA; (B) Borrower
and Guarantor are not subject to state statutes regulating investments and fiduciary obligations with respect to governmental plans;
and (C) the assets of Borrower and Guarantor do not constitute “plan assets” within the meaning of 29 C.F.R §2510.3-101
as modified in application by Section 3(42) of ERISA of any “benefit plan investor” as defined in Section 3(42) of
ERISA.


 




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(d)          Borrower
and Guarantor shall not (i) sponsor or contribute to, or permit any ERISA Affiliate to sponsor or contribute to, any Plan;
(ii) engage, or permit any ERISA Affiliate to engage, in any non-exempt prohibited transaction described in Section 406 of
ERISA or 4975 of the Code; (iii) fail to make any contribution or payment to any Multiemployer Plan which it or any ERISA
Affiliate may be required to make under any agreement relating to such Multiemployer Plan, or any law pertaining thereto; (iv)
incur, or permit any ERISA Affiliate to incur, any liability whether under ERISA or by contract or agreement or otherwise in connection
with a complete or partial withdrawal, as such terms are defined in Part I of Subtitle E of Title IV of ERISA, from any Multiemployer
Plan or (v) permit any ERISA Event to occur other than any such events or conditions that existed and were disclosed to Agent as
of the date hereof.


 


(e)          With
respect to each Multiemployer Plan for which Borrower or any ERISA Affiliate has an obligation to make contributions or other liability,
within the meaning of Section 101(l) of ERISA (a “Contributing Employer”), upon request by Agent in writing,
and no more frequently than once in a twelve (12) month period, Borrower shall request, or cause to be requested, in accordance
with Section 101(1)(1) of ERISA, that the plan sponsor or administrator of the applicable Multiemployer Plan provide an estimate
of the amount of the Contributing Employer’s withdrawal liability under Title IV of ERISA if the Contributing Employer were
to have completely withdrawn from the applicable Multiemployer Plan on the last day of the plan year preceding the date of the
request, and shall provide such information to Agent within 10 days after the receipt from the plan sponsor or administrator of
the applicable Multiemployer Plan.


 


Section 4.32        Patriot
Act Compliance.


 


(a)          Borrower
will use its good faith and commercially reasonable efforts to comply with the Patriot Act and all applicable requirements of Governmental
Authorities having jurisdiction over Borrower and/or the Properties, including those relating to money laundering and terrorism.
Agent shall have the right to audit Borrower’s compliance with the Patriot Act and all applicable requirements of Governmental
Authorities having jurisdiction over Borrower and/or the Properties, including those relating to money laundering and terrorism.
In the event that Borrower fails to comply with the Patriot Act or any such requirements of Governmental Authorities, then Agent
may, at its option, cause Borrower to comply therewith and any and all costs and expenses incurred by Agent and any Lender in connection
therewith shall be secured by the Mortgage and the other Loan Documents and shall be immediately due and payable.


 


(b)          Neither
Borrower nor any owner of a direct or indirect interest in Borrower (i) is listed on any Government Lists, (ii) is a
person who has been determined by competent authority to be subject to the prohibitions contained in Presidential Executive Order
No. 13224 (Sept. 23, 2001) or any other similar prohibitions contained in the rules and regulations of OFAC or in any enabling
legislation or other Presidential Executive Orders in respect thereof, (iii) has been previously indicted for or convicted
of any felony involving a crime or crimes of moral turpitude or for any Patriot Act Offense, or (iv) to Borrower’s Knowledge,
is currently under investigation by any Governmental Authority for alleged criminal activity. For purposes hereof, the term “Patriot
Act Offense” means any violation of the criminal laws of the United States of America or of any of the several states,
or that would be a criminal violation if committed within the jurisdiction of the United States of America or any of the several
states, relating to terrorism or the laundering of monetary instruments, including any offense under (A) the criminal laws
against terrorism; (B) the criminal laws against money laundering, (C) the Bank Secrecy Act, as amended, (D) the
Money Laundering Control Act of 1986, as amended, or (E) the Patriot Act. “Patriot Act Offense”
also includes the crimes of conspiracy to commit, or aiding and abetting another to commit, a Patriot Act Offense. For purposes
hereof, the term “Government Lists” means (1) the Specially Designated Nationals and Blocked Persons
Lists maintained by the Office of Foreign Assets Control (“OFAC”), (2) any other list of terrorists,
terrorist organizations or narcotics traffickers maintained pursuant to any of the Rules and Regulations of OFAC that Agent notified
Borrower in writing is now included in “Government Lists”, or (3) any similar lists maintained by
the United States Department of State, the United States Department of Commerce or any other Governmental Authority or pursuant
to any Executive Order of the President of the United States of America that Agent notified Borrower in writing is now included
in “Government Lists”.


 




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(c)          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, Key Principals or Guarantor shall constitute property of, or shall be beneficially
owned, directly or indirectly, by any Person subject to trade restrictions under United States law, including, but not limited
to, the International Emergency Economic Powers Act, 50 U.S.C. §§ 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, with the result that the investment in
Borrower, Key Principals or Guarantor, as applicable (whether directly or indirectly), would be prohibited by law (each, an “Embargoed
Person”), or the Loan made by Lenders would be in violation of law, (b) no Embargoed Person shall have any interest
of any nature whatsoever in Borrower, Key Principals or Guarantor, as applicable, with the result that the investment in Borrower,
Key Principals or Guarantor, as applicable (whether directly or indirectly), would be prohibited by law or the Loan would be in
violation of law, and (c) none of the funds of Borrower, Key Principals or Guarantor, as applicable, shall be derived from
any unlawful activity with the result that the investment in Borrower, Key Principals or Guarantor, as applicable (whether directly
or indirectly), would be prohibited by law or the Loan would be in violation of law.


 


Section 4.33        Residential
Tax Benefits.


 


(a)         
If a court of competent jurisdiction or administrative agency issues a binding determination to the effect that the Rent Regulations
Laws have been breached, and Borrower shall have exhausted and/or waived any right to further appeal such determination (provided
that, the time period in which Borrower may appeal such determination shall not exceed eighteen (18) months from the date of such
binding determination), including, but not limited to, any Petition for Administrative Review and/or any proceeding brought pursuant
to Civil Practice Law and Rules Article 78, thereby rendering such determination final and non-appealable (the “Final
Order”), then Borrower shall: (i) comply with such Final Order’s direction as to the RPTL Tax Benefit Law compliance
and any further direction that such Rents be registered with the New York State Division of Housing and Community Renewal (“DHCR”),
and (ii) comply with the Rent Regulation Laws, the RPTL Tax Benefits Law and the regulations issued under each of the foregoing
(including the prevailing wage requirements, if applicable) until the expiration 421-g Tax Benefits or any other date as ordered
by a court or administrative agency of competent jurisdiction. Borrower shall promptly respond to and defend against any notice
of revocation of the 421-g Tax Benefits received from any Governmental Authority, and promptly after the receipt of any such notice,
Borrower shall send a copy of the same to Agent.


 




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(b)          Borrower
shall at all times maintain as business records (i) copies of any and all contracts, invoices and canceled checks (front and back)
which establish the scope of any apartment improvements, and which substantiate any resulting rent increases based on the installation
of apartment improvements and (ii) proof of service and filing of any residential apartment DHCR rent registrations made by or
on behalf of Borrower.


 


Article
5



INSURANCE, CASUALTY AND CONDEMNATION


 


Section 5.1           Insurance.


 


5.1.1       Insurance
Policies.


 


(a)          Borrower,
at its sole cost and expense, shall obtain and maintain during the entire Term, or cause to be maintained, insurance policies for
Borrower and each of the Properties, providing at least the following coverages:


 


(i)          Property
insurance against loss or damage by fire, any type of wind (including named storms), lightning and such other perils as are included
in a standard “special form” or an “all-risk” policy, and against loss or damage by all other risks and
hazards covered by a standard extended coverage insurance policy, with no exclusion for damage or destruction caused by the acts
of “Terrorists” (or, subject to Section 5.1.1(i) below, standalone coverage with respect thereto) riot and civil
commotion, vandalism, malicious mischief, burglary and theft (A) in an amount equal to one hundred percent (100%) of the “Full
Replacement Cost” of such Property, which for purposes of this Agreement shall mean actual replacement value (exclusive
of costs of excavations, foundations, underground utilities and footings) with a waiver of depreciation; (B) to be written
on a no coinsurance form or containing an agreed amount endorsement with respect to the Improvements and personal property at such
Property waiving all co-insurance provisions; and (C) containing “Ordinance or Law Coverage” if
any of the Improvements or the use of such Property shall at any time constitute legal non-conforming structures or uses, and compensating
for loss to the undamaged portion of the building (with a limit equal to replacement cost), the cost of demolition and the increased
costs of construction, each in amounts as required by Agent. In addition, Borrower shall obtain: (y) if any portion of the Improvements
or Personal Property is currently or at any time in the future located in a federally designated special flood hazard area (“SFHA”),
flood hazard insurance for all such Improvements and/or Personal Property located in the SFHA in an amount equal to the (1) 
maximum amount of building and, if applicable, contents 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 plus (2) such
additional coverage as Agent shall require; If none of the Improvements is so identified, such flood hazard insurance shall be
no less than $10,000,00 and (z) earthquake insurance in amounts and in form and substance satisfactory to Agent (provided
that Agent shall not require earthquake insurance unless such Property is located in an area with a high degree of seismic activity
and a Probable Maximum Loss (“PML”) or Scenario Expected Loss (“SEL”) of greater than 20%),
provided that the insurance pursuant to clauses (y) and (z) hereof shall be on terms consistent with the comprehensive all
risk insurance policy required under this subsection (i); If none of the Improvements is so identified, such Earthquake
hazard insurance shall be no less than $10,000,000;


 




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(ii)         commercial
general liability insurance, including coverages against claims for personal injury, bodily injury, death or property damage occurring
upon, in or about such Property, such insurance (A) to be on the so-called “occurrence” form and containing minimum
limits per occurrence of One Million and No/100 Dollars ($1,000,000.00), with a combined limit per policy year, excluding umbrella
coverage, of not less than Two Million and No/100 Dollars ($2,000,000.00); (B) to continue at not less than the aforesaid
limit until required to be changed by Agent by reason of changed economic conditions making such protection inadequate; and (C) to
cover at least the following hazards: (1) such premises and operations; (2) products and completed operations on an “if
any” basis; (3) independent contractors; and (4) contractual liability for all insured contracts to the extent
the same is available;


 


(iii)        rental
loss and/or business income interruption insurance (A) with loss payable to Lender; (B) covering all risks required to
be covered by the insurance provided for in subsection (i) above, subsection (vi) below and Section 5.1.1(h)
below; (C) covering the entire period of restoration of the Property and 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 twelve
(12) months from the date that such 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; and (D) in an amount equal to one hundred percent (100%) of the
projected Gross Revenue from such Property (less non-continuing expenses) for a period of twenty four (24) months from the date
that such Property is repaired or replaced and operations are resumed. The amount of such business income insurance shall be determined
prior to the date hereof and at least once each year thereafter based on Borrower’s reasonable estimate of the Gross Revenue
from such Property (less non-continuing expenses) for the succeeding twenty four (24) month period. All proceeds payable to Agent
pursuant to this subsection shall be held by Agent and shall be applied to the Obligations secured by the Loan Documents from
time to time due and payable hereunder and under the Note; provided, however, that nothing herein contained shall be deemed to
relieve Borrower of its Obligations to pay the Debt on the respective dates of payment provided for in the Note and the other Loan
Documents except to the extent such amounts are actually paid out of the proceeds of such business income insurance;


 


(iv)        at
all times during which structural construction, repairs or alterations are being made with respect to the Improvements, and only
if such property or liability coverage forms do not otherwise apply, (A) commercial general liability and umbrella liability
insurance covering claims related to the construction, repairs, or alterations being made which are not covered by or under the
terms or provisions of the commercial general liability and umbrella liability insurance policy required herein in this Section
5.1.1(a); (B) Borrower shall cause its construction manager (CM) or General Contractor (GC) and shall have the CM/GC cause
its contractors and sub-contractors (TRADES) to maintain similar coverage to that which is provided in Sections 5.1.1(ii) and
5.1.1(vii). Such policies shall (i) maintain limits of liability as follows: (a) $50,000,000 commercial liability and automobile
liability for CM/GC and $5,000,000 for Trades (b) $500,000 employers liability and (C) the insurance provided for in subsection (i) above
written in a so-called builder’s risk completed value form (1) on a non-reporting basis, (2) against all risks
insured against pursuant to subsection (i) above, (3) including permission to occupy such Property, and (4) with
an agreed amount endorsement waiving co-insurance provisions;


 




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(v)         workers’
compensation, subject to the statutory limits of the state in which such Property is located, and employer’s liability insurance
with limits which are required from time to time by Agent in respect of any work or operations on or about such Property, or in
connection with such Property or its operation (if applicable);


 


(vi)        comprehensive
boiler and machinery/equipment breakdown insurance, if applicable, in amounts as shall be reasonably required by Agent on terms
consistent with the commercial property insurance policy required under subsection (i) above;


 


(vii)       umbrella
liability insurance in addition to primary coverage in an amount not less than one hundred million dollars ($100,000,000) per occurrence
on terms consistent with the commercial general liability insurance policy required under subsection (ii) above
and subsection (viii) below;


 


(viii)      motor
vehicle liability coverage for all owned and non-owned vehicles, including rented and leased vehicles containing minimum limits
per occurrence, including umbrella coverage, with limits which are reasonably required from time to time by Agent;


 


(ix)         intentionally
omitted;


 


(x)          insurance
against employee dishonesty with respect to any employee of Borrower in an amount not less than one (1) month of Gross Revenue
from the Properties and with a deductible not greater than Twenty Five Thousand and No/100 Dollars ($25,000.00); and


 


(xi)         upon
sixty (60) days’ notice, such other reasonable insurance and in such reasonable amounts as Agent from time to time may reasonably
request against such other insurable hazards which at the time are commonly insured against for properties similar to such Property
located in or around the region in which such Property is located.


 


(b)          All
insurance provided for in Section 5.1.1(a) shall be obtained under valid and enforceable policies (collectively, the
“Policies” or in the singular, the “Policy”) and shall be subject to the reasonable
approval of Agent as to form and substance, including insurance companies, amounts, deductibles, loss payees and insureds. Not
less than ten (10) days prior to the expiration dates of the Policies theretofore furnished to Agent, certificates of insurance
evidencing the Policies (and, upon the written request of Agent, and within thirty (30) days following such request, copies of
such Policies) accompanied by evidence reasonably satisfactory to Agent of payment of the premiums then due thereunder (the “Insurance
Premiums”), shall be delivered by Borrower to Agent.


 




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(c)          Any
blanket insurance Policy shall otherwise provide the same protection as would a separate Policy insuring only the Properties in
compliance with the provisions of Section 5.1.1(a) (any such blanket policy, an “Acceptable Blanket Policy”).
Borrower shall provide schedule of locations and values for all properties insured under blanket insurance Policy, for review by
Lender.


 


(d)          All
Policies of insurance provided for or contemplated by Section 5.1.1(a), , shall name Borrower as a named insured and,
with respect to the Policies of liability insurance, except for the Policies referenced in Section 5.1.1 (a)(v) and (viii),
shall name Agent (on behalf of Lenders) and its successors and/or assigns as additional insured, as its interests may appear, and
in the case of Policies of property insurance, including but not limited to special form/all risk, boiler and machinery, terrorism,
windstorm, flood and earthquake insurance, shall contain a standard non-contributing mortgagee clause in favor of Agent (on behalf
of Lenders) providing that the loss thereunder shall be payable to Agent unless below the threshold for Borrower to handle such
claim without Agent intervention as provided in Section 5.2 below. Additionally, if Borrower obtains property insurance
coverage in addition to or in excess of that required by Section 5.1.1(a)(i), then such insurance policies shall also
contain a standard non-contributing mortgagee clause in favor of Agent (on behalf of Lenders) providing that the loss thereunder
shall be payable to Agent.


 


(e)          All
Policies of insurance provided for in Section 5.1.1(a) shall:


 


(i)          with
respect to the Policies of property insurance, contain clauses or endorsements to the effect that, (1) 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 foreclosure or similar action shall in any
way affect the validity or enforceability of the insurance insofar as Agent is concerned (2) the Policies shall not be cancelled
without at least 30 days’ written notice to Lender, except ten (10) days’ notice for non-payment of premium and (3)
the issuer(s) of the Policies shall give written notice to Lender if the issuers elect not to renew the Policies prior to its expiration;


 


(ii)         with
respect to all Policies of liability insurance, if obtainable by Borrower using commercially reasonable efforts, contain clauses
or endorsements to the effect that, (1) the Policy shall not be canceled without at least thirty (30) days’ written notice
to Agent and any other party named therein as an additional insured (other than in the case of non-payment in which case only ten
days prior notice, or the shortest time allowed by applicable Legal Requirement (whichever is longer), will be required) and shall
not be materially changed (other than to increase the coverage provided thereby) without such a thirty (30) day notice and (2)
the issuers thereof shall give notice to Lender if the issuers elect not to renew such Policies prior to its expiration. If the
issuers cannot or will not provide notice, the Borrower shall be obligated to provide such notice; and


 


(iii)        not
contain any clause or provision that would make either Agent nor any Lender liable for any Insurance Premiums thereon or subject
to any assessments thereunder (except, prior to an Event of Default, to the extent of any Insurance Funds then on deposit in the
Insurance Account); and


 




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(f)    
      If at any time Agent is not in receipt of written evidence that all insurance required
hereunder is in full force and effect, Agent shall have the right, without notice to Borrower, to take such action as Agent
deems necessary to protect its interest in the applicable Property, including the obtaining of such insurance coverage
consistent with the terms of Section 5.1.1(a) as Agent in its reasonable discretion deems appropriate and all premiums
incurred by Agent in connection with such action or in obtaining such insurance and keeping it in effect shall be paid by
Borrower to Agent upon demand and until paid shall be secured by the Mortgage and shall bear interest at the Default Rate;
provided, however, that the foregoing shall not apply in the event that the amounts required to pay any applicable Insurance
Premiums have been deposited into the Insurance Account pursuant to Section 6.4 hereof.


 


(g)          In
the event of foreclosure of the Mortgage or other transfer of title to the Properties in extinguishment in whole or in part of
the Obligations, all right, title and interest of Borrower in and to the Policies that are not blanket Policies then in force concerning
the Properties and all proceeds payable thereunder shall thereupon vest in the purchaser at such foreclosure or Agent or other
transferee in the event of such other transfer of title.


 


(h)          The
property insurance, commercial general liability, umbrella liability insurance and rental loss and/or business interruption insurance
required under Sections 5.1.1(a)(i), (ii), (iii) and (vii) above shall cover perils of terrorism and acts of terrorism
(or at least not specifically exclude same) and Borrower shall maintain property insurance, commercial general liability, umbrella
liability insurance and rental loss and/or business interruption insurance for loss resulting from perils and acts of terrorism
on terms (including amounts) consistent with those required under Sections 5.1.1(a)(i), (ii), (iii) and (vii) above
(or at least not specifically excluding same) at all times during the term of the Loan. For so long as the Terrorism Risk Insurance
Program Reauthorization Act of 2015 or subsequent statute, reauthorization, extension thereof (“TRIPRA”) is in effect
and continues to cover both foreign and domestic acts, Lender shall accept terrorism insurance with coverage against acts which
are “certified” within the meaning of TRIPRA.


 




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(i)    
      Notwithstanding anything in subsection (a)(i) or (h) above to the contrary,
Borrower shall be required to obtain and maintain coverage in its property insurance Policy (or by a separate Policy) against
loss or damage by terrorist acts in an amount equal to 100% of the “Full Replacement Cost” of the Properties plus
the rental loss and/or business interruption coverage under subsection (a)(iii) above; provided that such coverage is
available. In the event that such coverage with respect to terrorist acts is not included as part of the “all
risk” property policy required by subsection (a)(i) above, Borrower shall, nevertheless be required to
obtain coverage for terrorism (as standalone coverage) in an amount equal to 100% of the “Full Replacement Cost”
of such Property plus the rental loss and/or business interruption coverage under subsection (a)(iii) above;
provided that such coverage is available. Borrower shall obtain the coverage required under this clause (i) from
a carrier which otherwise satisfies the rating criteria specified in Section 5.1.2 below (a “Qualified
Carrier”) or in the event that such coverage is not available from a Qualified Carrier, Borrower shall obtain
such coverage from the highest rated insurance company providing such coverage. To the extent that insurance pursuant to this Section
5.1.1(i) is maintained pursuant to a blanket policy, if such blanket policy covers more than one property within a one
thousand foot radius of the Property (the “Radius”), the limits of any such policy shall be
adequate to maintain the coverage set forth in this Section 5.1.1(i) for the Property and all other locations combined
within the Radius that are covered by such blanket policy calculated on a total insured value basis, to the extent such
coverage is commercially available. Notwithstanding the foregoing, , in the event TRIPRA is no longer in effect, Borrower
shall be required to carry terrorism insurance throughout the term of the Loan as required herein this clause (i), but in
such event Borrower shall not be required to pay any Insurance Premiums solely with respect to such terrorism coverage in
excess of the Terrorism Premium Cap (hereinafter defined) and, if the cost of such terrorism coverage exceeds the Terrorism
Premium Cap, Borrower shall purchase the maximum amount of terrorism coverage available with funds equal to the Terrorism
Premium Cap; provided that if the Insurance Premiums payable with respect to such terrorism coverage exceeds the Terrorism
Premium Cap, Agent may, at its option (1) purchase such stand-alone terrorism Policy, with Borrower paying such portion
of the Insurance Premiums with respect thereto equal to the Terrorism Premium Cap and the Agent paying such portion of the
Insurance Premiums in excess of the Terrorism Premium Cap or (2) modify the deductible amounts, policy limits and
other required policy terms to reduce the Insurance Premiums payable with respect to such stand-alone terrorism Policy to the
Terrorism Premium Cap. As used herein, “Terrorism Premium Cap” means an amount equal to two
times the amount of the insurance premium that is payable in respect of the property and business interruption/rental loss
insurance required under the Loan Documents (without giving effect to the cost of terrorism and earthquake components of such
Property and business interruption/rental loss insurance) at the time that such terrorism coverage is excluded from the
applicable Policy.


 


5.1.2      Insurance
Company. All Policies required pursuant to Section 5.1.1, (i) shall be issued by companies authorized
or licensed to do business in the state where the Properties are located, with (1) a financial strength and claims paying ability
rating of (x) “A” or better by S&P and, (y) “A2” or better by Moody’s, to the extent Moody’s
rates the insurance company and rates the Securities; provided, however for multi-layered policies, (A) if four (4) or fewer
insurance companies issue the Policies, then at least 75% of the insurance coverage represented by the Policies must be provided
by insurance companies with a rating of “A” or better by S&P and “A2” or better by Moody’s,
to the extent Moody’s rates the insurance company and rates the Securities, with no carrier below “BBB” by S&P
and “Baa2” or better by Moody’s, to the extent Moody’s rates the insurance company and rates Securities,
or (B) if five (5) or more insurance companies issue the Policies, then at least sixty percent (60%) of the insurance coverage
represented by the Policies must be provided by insurance companies with a rating of “A” or better by S&P and
“A2” or better by Moody’s, to the extent Moody’s rates the insurance company and rates the Securities,
with no carrier below “BBB” by S&P and “Baa2” or better by Moody’s, to the extent Moody’s
rates the insurance company and rates the Securities, and (2) a rating of A:X or better in the current Best’s Insurance
Reports; (ii)  shall, with respect to all property insurance policies and rental loss and/or business interruption insurance
policies, contain a Standard Mortgagee Clause/Lender’s Loss Payable Endorsement, or their equivalents, naming Agent (on
behalf of Lenders) as the person to whom all payments made by such insurance company shall be paid; (iii) shall contain a
waiver of subrogation against Agent; (iv) shall contain such provisions as Agent deems reasonably necessary or desirable
to protect its interest including endorsements providing (A) that neither Borrower, Agent, Lender nor any other party shall
be a co-insurer under said Policies, and (B)  for a deductible per loss of an amount not more than that which is customarily
maintained by prudent owners of properties with a standard of operation and maintenance comparable to and in the general vicinity
of such Property, but in no event in excess of an amount reasonably acceptable to Agent; and (v) shall be reasonably satisfactory
in form and substance to Agent and shall be reasonably approved by Agent as to amounts, form, risk coverage, deductibles, loss
payees and insureds. In addition to the insurance coverages described in Section 5.1.1 above, Borrower shall obtain
such other insurance as may from time to time be reasonably required by Agent in order to protect its interests and which covers
risks that are commonly insured for properties similar to the Properties located in or around the region in which the Properties
are located. Certified copies of the Policies shall be delivered to Agent at the address below (or to such other address or Person
as Agent shall designate from time to time by notice to Borrower) on the date hereof with respect to the current Policies and
within thirty (30) days after the effective date thereof with respect to all renewal Policies:


 




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DEUTSCHE BANK AG, NEW YORK BRANCH,
AS AGENT, its successors and/or assigns as their interest may appear

60 Wall Street, 10th Floor

New York, NY 10005

Attn: Karen Bernsohn


 


Borrower shall pay the Insurance Premiums
annually in advance as the same become due and payable and shall furnish to Agent evidence of the renewal of each of the Policies
with receipts for the payment of the Insurance Premiums or other evidence of such payment reasonably satisfactory to Agent (provided,
however, that Borrower shall not be required to pay such Insurance Premiums or furnish such evidence of payment to Agent in the
event that the amounts required to pay such Insurance Premiums have been deposited into the Insurance Account pursuant to Section 6.4
hereof). Within thirty (30) days after request by Agent, Borrower shall obtain such increases in the amounts of coverage required
hereunder as may be reasonably requested by Agent, taking into consideration changes in the value of money over time, changes in
liability laws, and changes in prudent customs and practices.


 


Section 5.2          Casualty.
If any Property shall be damaged or destroyed, in whole or in part, by fire or other casualty (a “Casualty”),
Borrower shall give prompt notice thereof to Agent. Following the occurrence of a Casualty, Borrower, regardless of whether insurance
proceeds are available, shall promptly proceed to restore, repair, replace or rebuild the affected Property in accordance with
Legal Requirements to be of at least equal value and of substantially the same character as prior to such damage or destruction.
Agent may, but shall not be obligated to make proof of loss if not made promptly by Borrower. In addition, Agent may participate
in any settlement discussions with any insurance companies (and shall approve any final settlement) (i) if an Event of Default
is continuing or (ii) with respect to any Casualty in which the Net Proceeds or the costs of completing the Restoration are
equal to or greater than, with respect to the affected Property, two percent (2%) of the Allocated Loan Amount for such Property,
and Borrower shall deliver to Agent all instruments required by Agent to permit such participation. Except as set forth in the
foregoing sentence, any Insurance Proceeds in connection with any Casualty (whether or not Agent elects to settle and adjust the
claim or Borrower settles such claim) shall be due and payable solely to Agent and held by Agent in accordance with the terms
of this Agreement. In the event Borrower or any party other than Agent is a payee on any check representing Insurance Proceeds
with respect to any Casualty, Borrower shall immediately endorse, and cause all such third parties to endorse, such check payable
to the order of Agent (on behalf of Lenders). Borrower hereby irrevocably appoints Agent as its attorney-in-fact, coupled with
an interest, to endorse any such check payable to the order of Agent (on behalf of Lenders). Borrower hereby releases Agent and
Lenders from any and all liability with respect to the settlement and adjustment by Agent of any claims in respect of any Casualty,
except to the extent such liability arises as a result of the gross negligence or willful misconduct of Agent or any Lender.


 




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Section 5.3          Condemnation.
Borrower shall promptly give Agent notice of the actual or threatened in writing commencement of any proceeding for the Condemnation
of all or any portion of any Property and shall deliver to Agent copies of any and all papers served in connection with such proceedings.
Agent may participate in any such proceedings, and Borrower shall from time to time deliver to Agent all instruments requested
by it to permit such participation. Borrower shall, at its expense, diligently prosecute any such proceedings, and shall consult
with 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 Agent, after the deduction of expenses of collection, to the reduction or discharge
of the Debt. 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. If any Property or any portion thereof
is taken by a condemning authority, Borrower shall promptly commence and diligently prosecute the Restoration of such Property
and otherwise comply with the provisions of Section 5.4, whether or not an Award is available to pay the costs of
such Restoration. If such Property is sold, through foreclosure or otherwise, prior to the receipt by Agent of the Award, 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.


 


Section 5.4           Restoration.
The following provisions shall apply in connection with the Restoration:


 


(a)          If
the Net Proceeds shall be less than, with respect to the affected Property, two percent (2%) of the Allocated Loan Amount for such
Property, and provided no Event of Default is continuing, the Net Proceeds will be disbursed by Agent to Borrower upon receipt,
provided that all of the conditions set forth in Section 5.4(b)(i) are met and Borrower delivers to Agent a written
undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the
terms of this Agreement.


 


(b)          If
the Net Proceeds are equal to or greater than, with respect to the affected Property, two percent (2%) of the Allocated Loan Amount
for such Property, the Net Proceeds will be held by Agent and Agent shall make the Net Proceeds available for the Restoration in
accordance with the provisions of this Section 5.4. The term “Net Proceeds” shall mean: (i) the
net amount of all insurance proceeds received by Agent pursuant to Section 5.1.1 (a)(i), (iii), (iv), and (vi) and
Section 5.1.1(h) as a result of such damage or destruction, after deduction of its reasonable costs and expenses (including,
but not limited to, reasonable counsel fees), if any, in collecting same (“Insurance Proceeds”), or (ii) the
net amount of the Award, after deduction of its reasonable costs and expenses (including, but not limited to, reasonable counsel
fees), if any, in collecting same (“Condemnation Proceeds”), whichever the case may be.


 




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(i)          The
Net Proceeds shall be made available to Borrower for Restoration upon the determination of Agent, in its reasonable discretion,
that the following conditions are met:


 


(A)         no
Event of Default shall have occurred and be continuing;


 


(B)         (1)
in the event the Net Proceeds are Insurance Proceeds, less than thirty-five percent (35%) of the total floor area of the Improvements
on the affected 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, less than ten percent (10%) of the total floor areas of the Improvements on such Property
has been damaged, destroyed or rendered unusable as a result of such Condemnation;


 


(C)         Leases
demising in the aggregate a percentage amount equal to or greater than sixty-five percent (65%) of the total rentable space in
the affected Property which has been demised under executed and delivered Leases in effect as of the date of the occurrence of
such Casualty or Condemnation, whichever the case may be, shall remain in full force and effect during and after the completion
of the Restoration without abatement of rent beyond the time required for Restoration, notwithstanding the occurrence of any such
Casualty or Condemnation, whichever the case may be, and will make all necessary repairs and restorations thereto that are not
being made by Borrower as part of the Restoration at its sole cost and expense;


 


(D)         Borrower
shall commence (which, for the purposes hereof, includes the pursuit of building permits and/or starting the design or architectural
phase and/or commencing construction) the Restoration as soon as reasonably practicable (but in no event later than ninety (90)
days after such Casualty or Condemnation, whichever the case may be, occurs) and shall diligently pursue the same to satisfactory
completion;


 


(E)         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 affected 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 5.1.1(a)(iii),
if applicable, or (3) by other funds of Borrower;


 


(F)         Agent
shall be reasonably satisfied that the Restoration will be completed on or before the earliest to occur of (1) the date three
(3) months prior to the then current Stated Maturity Date, (2) the earliest date required for such completion under the terms
of any applicable Major Lease, (3) such time as may be required under applicable Legal Requirements or (4) one (1) month
prior to the expiration of the insurance coverage referred to in Section 5.1.1(a)(iii);


 




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(G)         the
affected Property and the use thereof after the Restoration will be in material compliance with and permitted under all applicable
Legal Requirements;


 


(H)         the
Restoration shall be done and completed by Borrower in an expeditious and diligent fashion and in compliance with all applicable
Legal Requirements in all material respects;


 


(I)         such
Casualty or Condemnation, as applicable, does not result in the permanent loss of access to the affected Property or the related
Improvements;


 


(J)         the
Restoration DSCR, after giving effect to the Restoration, shall be equal to or greater than 1.64 to 1.00;


 


(K)         the
Loan to Value Ratio after giving effect to the Restoration, shall be equal to or less than 73%;


 


(L)         Borrower
shall deliver, or cause to be delivered, to Agent a signed detailed budget approved in writing by Borrower’s architect or
engineer or cost consultant stating the entire cost of completing the Restoration, which budget shall be reasonably acceptable
to Agent; and


 


(M)         the
Net Proceeds together with any cash or cash equivalent deposited by Borrower with Agent are sufficient in Agent’s reasonable
discretion to cover the cost of the Restoration.


 


(ii)         The
Net Proceeds shall be held by Agent in the Casualty and Condemnation Account and, until disbursed in accordance with the provisions
of this Section 5.4(b), shall constitute additional security for the Debt and the Obligations under the Loan Documents.
The Net Proceeds shall be disbursed by Agent to, or as directed by, Borrower from time to time during the course of the Restoration,
upon receipt of evidence reasonably satisfactory to 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 affected Property which have not
either been fully bonded to the reasonable satisfaction of Agent and discharged of record or in the alternative fully insured to
the reasonable satisfaction of Agent by the title company issuing the Title Insurance Policy for the affected Property.


 


(iii)        All
plans and specifications required in connection with the Restoration shall be subject to the prior reasonable approval of Agent
and an independent consulting engineer selected by Agent (the “Casualty Consultant”). 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 the reasonable approval of Agent and the Casualty Consultant. All out-of-pocket costs
and expenses incurred by Agent and any Lender in connection with recovering, holding and advancing the Net Proceeds for the Restoration
including, without limitation, reasonable attorneys’ fees and disbursements and the Casualty Consultant’s reasonable
fees and disbursements, shall be paid by Borrower.


 




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(iv)        In
no event shall 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, less the Casualty
Retainage. The term “Casualty Retainage” shall mean, as to each contractor, subcontractor or materialman
engaged in the Restoration, an amount equal to 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 completed. The Casualty Retainage shall in
no event, and notwithstanding anything to the contrary set forth above in this Section 5.4(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 Agent that the Restoration has been completed in accordance with
the provisions of this Section 5.4(b) and that all approvals necessary for the re-occupancy and use of the affected
Property have been obtained from all appropriate Governmental Authorities, and Agent receives evidence reasonably satisfactory
to 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 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 (i) the Casualty Consultant certifies to Agent that such
contractor, subcontractor or materialman has satisfactorily completed all work and has supplied all materials in accordance with
the provisions of such contractor’s, subcontractor’s or materialman’s contract, (ii) the contractor, subcontractor
or materialman delivers the lien waivers and evidence of payment in full of all sums due to the contractor, subcontractor or materialman
as may be reasonably requested by Agent or by the title company issuing the Title Insurance Policy for the affected Property, and
(iii) Agent receives an endorsement to the Title Insurance Policy for the affected Property insuring the continued priority
of the Lien of the Mortgage and evidence of payment of any premium payable for such endorsement. If required by 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)         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 Agent in consultation with
the Casualty Consultant, be sufficient to pay in full the balance of the costs which are reasonably estimated by the Casualty Consultant
to be incurred in connection with the completion of the Restoration, Borrower shall deposit the deficiency (the “Net
Proceeds Deficiency”) with Agent (for deposit into the Casualty and Condemnation Account) before any further disbursement
of the Net Proceeds shall be made. The Net Proceeds Deficiency deposited with Agent shall be deposited by Agent into the Casualty
and Condemnation Account and shall be disbursed 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 pursuant to this Section 5.4(b) shall constitute
additional security for the 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 Agent after
the Casualty Consultant certifies to Agent that the Restoration has been completed in accordance with the provisions of this Section 5.4(b),
and the receipt by Agent of evidence reasonably satisfactory to Agent that all costs incurred in connection with the Restoration
have been paid in full, shall be applied by Agent on the next Payment Date in accordance with Section 6.9.1, provided no
Event of Default shall have occurred and shall be continuing.


 


(c)          Notwithstanding
anything to the contrary set forth in this Agreement, including the provisions of this Section 5.4, if the Loan is included
in a REMIC Trust and, immediately following a release of any portion of the Lien of the Mortgage following a Casualty or Condemnation
(but taking into account any proposed Restoration of the remaining Property), the ratio of the unpaid principal balance of the
Loan to the value of the remaining Property is greater than 125% (such value to be determined, in Agent’s sole discretion,
by any commercially reasonable method permitted to a REMIC Trust; and which shall exclude the value of personal property or going
concern value, if any), the Outstanding Principal Balance must be paid down by an amount equal to the least of the following amounts:
(i) the net Award (after payment of Agent’s and Lenders’ costs and expenses and any other fees and expenses that
have been approved by Agent) or the net Insurance Proceeds (after payment of Agent’s and Lenders’ costs and expenses
and any other fees and expenses that have been approved by Agent), as the case may be, or (ii) a “qualified amount”
as that term is defined in the IRS Revenue Procedure 2010-30, as the same may be amended, replaced, supplemented or modified from
time to time, unless Agent receives an opinion of counsel that if such amount is not paid, the applicable Securitization will not
fail to maintain its status as a REMIC Trust as a result of the related release of such portion of the Lien of the Mortgage. If
and to the extent the preceding sentence applies, only such amount of the net Award or net Insurance Proceeds (as applicable),
if any, in excess of the amount required to pay down the principal balance of the Loan may be released for purposes of Restoration
or released to Borrower as otherwise expressly provided in this Section 5.4.


 


(d)          All
Net Proceeds not required (i) to be made available for the Restoration or (ii) to be returned to Borrower as excess Net
Proceeds pursuant to Section 5.4(b)(vii) may be retained and applied by Agent in accordance with Section 2.4.3
hereof toward the payment of the Debt whether or not then due and payable in such order, priority and proportions as Agent in its
sole discretion shall deem proper, or, at the discretion of Agent, the same may be paid, either in whole or in part, to Borrower
for such purposes as Agent shall approve, in its discretion. Additionally, prior to the Spread Maintenance Date if an Event of
Default is continuing, then Borrower shall pay to Agent, with respect to any payment of the Debt pursuant to this Section 5.4(d),
an additional amount equal to the Spread Maintenance Premium; provided, however, that if an Event of Default is not continuing,
then no Spread Maintenance Premium shall be payable.


 




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(e)          In
the event of foreclosure of the Mortgage, or other transfer of title to any 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
Property and all proceeds payable thereunder shall thereupon vest in the purchaser at such foreclosure or Agent or other transferee
in the event of such other transfer of title.


 


(f)   
       Notwithstanding anything to the contrary contained herein, if in connection with a
Casualty, any insurance company makes a payment under a property or business or rental interruption insurance Policy that
Borrower proposes be treated as business or rental interruption insurance, then, notwithstanding any designation (or lack of
designation) by the insurance company as to the purpose of such payment, as between Agent and Borrower, such payment shall
not be treated as business or rental interruption Insurance Proceeds unless Borrower (i) has demonstrated to
Agent’s satisfaction that the remaining Net Proceeds that have been received from the property insurance companies are
sufficient to pay 100% of the cost of the Restoration or, if such Net Proceeds are to be applied to repay the Obligations in
accordance with the terms hereof, that such remaining Net Proceeds will be sufficient to satisfy the Obligations in full
or (ii) to the extent Borrower is not able to satisfy Agent as to the sufficiency of the remaining funds to pay 100% of
the Restoration or to satisfy the Obligations in full prior to distribution of Net Proceeds, Borrower has agreed to fund any
shortfall from funds other than from Gross Revenues or borrowed funds and has provided such security as Agent may require to
insure payment of such shortfalls. To the extent any payment under a property or business or rental interruption insurance
Policy is treated as business or rental interruption insurance in accordance with this paragraph (f), such funds shall be
deposited into the Casualty and Condemnation Account. Provided that no Event of Default then exists, Insurance Proceeds
treated as business or rental interruption insurance in accordance with this paragraph (f) (to the extent of available funds)
shall be (A) first applied by Agent, on each Monthly Payment Date, to pay for Combined Debt Service, deposits of Reserve
Funds and payments of Monthly Operating Expense Budgeted Amount and Approved Extraordinary Operating Expenses actually
incurred (collectively, the “Approved Monthly BI Expenses”) for such month pursuant to, and in the
priorities set forth in, Section 6.9.1, and (B) second, to the extent that Agent determines that the amount of
business or rental interruption Insurance Proceeds then remaining in the Casualty and Condemnation Account is sufficient to
pay for all future Approved Monthly BI Expenses through the completion of the subject Restoration, disbursed by Agent to
Borrower in an aggregate amount under this clause (B) not to exceed the Approved Monthly BI Expenses actually incurred
by Borrower from the date of the applicable Casualty to the date of the first installment of business or rental
interruption Insurance Proceeds advanced by the applicable insurance company (as evidenced by supporting documentation by
Borrower that is reasonably acceptable to Agent). Provided no Trigger Period then exists, all remaining business or rental
interruption insurance proceeds shall be disbursed to Borrower upon the completion of the subject Restoration and the
recommencement of full unabated rent being paid by the Tenants under the Leases required to remain in place pursuant to Section
5.4(b)(i)(C).


 




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Article
6


 


CASH
MANAGEMENT AND RESERVE FUNDS


 


Section 6.1          Cash
Management Arrangements. Borrower shall cause all Rents (other than security deposits of Tenants, which shall be held
in accordance with Section 4.11.4) relating to its Property to be transmitted directly by non-residential Tenants
of such Property into a trust account (the “Clearing Account”) established and maintained by Borrower
at an Eligible Institution selected by Borrower and reasonably approved by Agent (the “Clearing Bank”)
as more fully described in the Clearing Account Agreement. Without in any way limiting the foregoing, with respect to all Gross
Revenues received by Borrower or Manager, including all Rents from residential Tenants of the Properties, (i) such amounts
shall be deemed to be collateral for the Obligations and shall be held in trust for the benefit, and as the property, of Agent
(on behalf of Lenders), (ii) such amounts shall not be commingled with any other funds or property of Borrower or Manager,
and (iii) Borrower or Manager shall deposit or cause to be deposited such amounts in the Clearing Account within two (2) Business
Days of receipt (other than security deposits of Tenants, which shall be held in accordance with Section 4.11.4). Funds
deposited into the Clearing Account shall be swept by the Clearing Bank on a daily basis into the Deposit Account and applied
and disbursed in accordance with this Agreement. Funds in the Deposit Account that are invested shall be invested in Permitted
Investments, as more particularly set forth and defined in the Cash Management Agreement. Agent may also establish subaccounts
of the Deposit Account which shall at all times be Eligible Accounts (and may be ledger or book entry accounts and not actual
accounts) (such subaccounts are referred to herein as “Accounts”). The Deposit Account and all other
Accounts will be under the sole control and dominion of Agent, and Borrower shall not have any right of withdrawal therefrom.
Borrower shall pay for all expenses of opening and maintaining all of the above accounts.


 


Section 6.2          Required
Repairs. Borrower shall perform the repairs and other work at the Properties as set forth on Schedule II
(such repairs and other work hereinafter referred to as “Required Repairs”) and shall complete each
of the Required Repairs on or before the respective deadline for each repair as set forth on Schedule II.


 


Section 6.3          Tax
Funds.


 


6.3.1      Deposits
of Tax Funds. Borrower shall deposit with Agent on each Monthly Payment Date, an amount equal to one-twelfth of the Real
Estate Taxes that Agent estimates will be payable during the next ensuing twelve (12) months (initially, $777,797), in order to
accumulate sufficient funds to pay all such Real Estate Taxes at least thirty (30) days prior to their respective due dates, which
amounts shall be transferred into an Account (the “Tax Account”). Amounts deposited from time to time
into the Tax Account pursuant to this Section 6.3.1 are referred to herein as the “Tax Funds”.
If at any time Agent reasonably determines that the Tax Funds will not be sufficient to pay the Real Estate Taxes, Agent shall
notify Borrower of such determination and the monthly deposits for Taxes shall be increased by the amount that Agent estimates
is sufficient to make up the deficiency at least ten (10) days prior to the respective due dates for the Real Estate Taxes; provided,
that if Borrower receives notice of any deficiency after the date that is ten (10) days prior to the date that Real Estate Taxes
are due, Borrower will deposit with or on behalf of Agent such amount within one (1) Business Day after its receipt of such notice.


 


6.3.2      Release
of Tax Funds. Provided no Event of Default shall exist and remain uncured, Agent shall apply or cause to be applied Tax
Funds in the Tax Account to payments of Real Estate Taxes. In making any payment relating to Real Estate Taxes, Agent may do so
according to any bill, statement or estimate procured from the appropriate public office (with respect to Real Estate Taxes) 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 the amount of the Tax Funds shall exceed the amounts due for Real Estate Taxes and provided
that no Trigger Period exists, Agent shall, at Borrower’s option, return any excess to Borrower or credit such excess against
future payments to be made to the Tax Funds. Any Tax Funds remaining in the Tax Account after the Obligations have been paid in
full shall be applied by Agent on the next Payment Date in accordance with Section 6.9.1.


 




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Section 6.4           Insurance
Funds.


 


6.4.1      Deposits
of Insurance Funds. Borrower shall deposit with or on behalf of Agent (i) on the Closing Date, an amount equal to $410,399.38
and (ii) on each Monthly Payment Date, an amount equal to one-twelfth of the Insurance Premiums that Agent estimates will
be payable for the renewal of the coverage afforded by the Policies upon the expiration thereof (initially $34,199.95) in order
to accumulate sufficient funds to pay all such Insurance Premiums at least thirty (30) days prior to the expiration of the Policies,
which amounts shall be transferred into an Account established at Deposit Bank to hold such funds (the “Insurance
Account”). Amounts deposited from time to time into the Insurance Account pursuant to this Section 6.4.1
are referred to herein as the “Insurance Funds”. If at any time Agent reasonably determines that
the Insurance Funds will not be sufficient to pay the Insurance Premiums, Agent shall notify Borrower of such determination and
the monthly deposits for Insurance Premiums shall be increased by the amount that Agent estimates is sufficient to make up the
deficiency at least thirty (30) days prior to expiration of the Policies.


 


6.4.2      Release
of Insurance Funds. Provided no Event of Default shall exist and remain uncured, Agent shall apply or cause to be applied
Insurance Funds in the Insurance Account to the timely payment of Insurance Premiums, provided Borrower shall furnish Agent with
all bills, invoices and statements for the Insurance Premiums for which such funds are required at least ten (10) Business Days
prior to the date on which such charges first become payable. In making any payment relating to Insurance Premiums, Agent may
do so according to any bill, statement or estimate procured from the insurer or its agent, without inquiry into the accuracy of
such bill, statement or estimate. If the amount of the Insurance Funds shall exceed the amounts due for Insurance Premiums, Agent
shall, in its sole discretion, return any excess to Borrower or credit such excess against future payments to be made to the Insurance
Funds. Any Insurance Funds remaining in the Insurance Account after the Obligations have been paid in full shall be applied by
Agent on the next Payment Date in accordance with Section 6.9.1.


 


6.4.3      Acceptable
Blanket Policy. Notwithstanding anything to the contrary contained in Section 6.4.1, in the event that an Acceptable
Blanket Policy is in effect with respect to all of the Policies required pursuant to Section 5.1, deposits into the
Insurance Account required for Insurance Premiums pursuant to Section 6.4.1 above shall be suspended to the extent that
Insurance Premiums relate to such Acceptable Blanket Policy.


 


Section 6.5          Capital
Expenditure Funds.


 


6.5.1      Deposits
of Capital Expenditure Funds. Borrower shall deposit with or on behalf of Agent (i) on the Closing Date, an amount equal
to $69,053 (which funds shall have been advanced by Current Mezzanine Lender to Current Mezzanine Borrower and then contributed
to Borrower from Current Mezzanine Borrower as a capital contribution) and (ii) on each Monthly Payment Date, the amount
of $16,550.00, for annual Capital Expenditures, which amounts shall be transferred into an Account (the “Capital Expenditure
Account”). Amounts deposited from time to time into the Capital Expenditure Account pursuant to this Section 6.5.1
are referred to herein as the “Capital Expenditure Funds”.


 




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6.5.2      Release
of Capital Expenditure Funds. Provided no Event of Default is continuing, Agent shall disburse or cause to be disbursed
Capital Expenditure Funds to Borrower out of the Capital Expenditure Account for payment for, or for reimbursement of Borrower
for its advance of, Capital Expenditures, within ten (10) days after the delivery by Borrower to Agent of a request therefor (but
not more often than once per month), in increments of at least $10,000 (or a lesser amount if the total amount in the Capital
Expenditure Account is less than $10,000, in which case only one disbursement of the amount remaining in the account shall be
made) provided that: (i) such disbursement is for an Approved Capital Expenditure; (ii) the request for disbursement
is accompanied by (A) an Officer’s Certificate from Borrower (1) stating that the items to be funded or reimbursed
by the requested disbursement are Approved Capital Expenditures, and a description thereof, (2) stating that all Approved
Capital Expenditures to be funded or reimbursed by the requested disbursement have been completed or completed to the extent of
the requested disbursement (other than with respect to deposits necessary or required as a down-payment to initiate an Approved
Capital Expenditure), in a good and workmanlike manner and in accordance with all applicable Legal Requirements, (3) stating
that the Approved Capital Expenditures (or the relevant portions thereof) to be funded or reimbursed from the disbursement in
question have not been the subject of a previous disbursement, (4) stating that all previous disbursements of Capital Expenditure
Funds have been used to pay or reimburse the previously identified Approved Capital Expenditures, and (5) stating that all
outstanding trade payables (other than those to be paid from the requested disbursement, those constituting Permitted Indebtedness
or other requested disbursements then pending) have been paid in full, (B) a copy of any license, permit or other approval
required by any Governmental Authority in connection with the Approved Capital Expenditures to be funded or reimbursed from such
disbursement and not previously delivered to Agent, (C) if the amount of such Approved Capital Expenditures to be funded
exceeds $100,000 in the aggregate, copies of appropriate lien waivers, conditional lien waivers, or other evidence of payment
satisfactory to Agent, (D) if the cost of such Approved Capital Expenditures to be funded exceeds $100,000 in the aggregate,
at Agent’s option, a title search for the applicable Property indicating that such Property is free from all Liens, claims
and other encumbrances not previously approved by Agent, and (E) such other evidence as Agent shall reasonably request to demonstrate
that the Approved Capital Expenditures to be funded by the requested disbursement have been completed and are paid for or will
be paid upon such disbursement to Borrower (or the portion thereof as to which such request for disbursement has been submitted
has been completed and is paid for (other than any retention amount which is not a part of such disbursement request) or will
be paid upon such disbursement to Borrower) and (iii) if such disbursement request is for $50,000 or more, Agent shall have
(if it desires) verified (by an inspection conducted at Borrower’s expense to the extent of Agent’s out-of-pocket
costs and expenses of conducting such inspection) performance of the work associated with such Approved Capital Expenditure. Any
such inspection shall be conducted in accordance with Section 4.10.


 


Section 6.6          Rollover
Funds.


 


6.6.1      Deposits
of Rollover Funds. 


 


(a)          Amounts
deposited from time to time into the Rollover Account pursuant to this Section 6.6.1 are referred to herein as the
“Rollover Funds”.


 




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(b)          The
following items shall be deposited into an Account (the “Rollover Account”) and held as Rollover Funds
and shall be disbursed and released as set forth in Section 6.6.2 below, and Borrower shall advise Agent at the time
of receipt thereof of the nature of such receipt so that Agent shall have sufficient time to instruct the Deposit Bank to deposit
and hold such amounts in the Rollover Account pursuant to the Cash Management Agreement:


 


(i)          All
sums paid with respect to (A) a modification of any commercial Lease or otherwise paid in connection with Borrower taking
any action under any commercial Lease (e.g., granting a consent) or waiving any provision thereof, (B) any settlement of claims
of Borrower against third parties in connection with any commercial Lease, (C) any rejection, termination, surrender or cancellation
of any commercial Lease (including in any bankruptcy case) or any lease buy-out or surrender payment from any Tenant under a commercial
Lease (including any payment relating to unamortized tenant improvements and/or leasing commissions and/or application of any security
deposits) (collectively, “Lease Termination Payments”), and (D) any sum received from any commercial
Tenant to obtain a consent to an assignment or sublet or otherwise, or any holdover rents or use and occupancy fees from any commercial
Tenant or former commercial Tenant (to the extent not being paid for use and occupancy or holdover rent); provided, however, Borrower
may retain its reasonable out-of-pocket costs and expenses incurred in connection with items (A) through (D) above; and


 


(ii)         Any
other extraordinary event pursuant to which Borrower receives payments or income (in whatever form) derived from or generated by
the use, ownership or operation of the Properties not otherwise covered by this Agreement or the Cash Management Agreement.


 


6.6.2      Release
of Rollover Funds. Provided no Event of Default is continuing, Agent shall disburse or cause to be disbursed Rollover
Funds to Borrower out of the Rollover Account for the direct payment of, or for reimbursement of Borrower for its advance of,
amounts to be funded from Rollover Funds, within ten (10) days after the delivery by Borrower to Agent of a request therefor (but
not more often than once per month), in increments of at least $10,000 provided that: (i) such disbursement is for an Approved
Leasing Expense; (ii) the request for disbursement is accompanied by (A) an Officer’s Certificate from Borrower
(1) stating that the items to be funded or reimbursed by the requested disbursement are Approved Leasing Expenses, and a
description thereof, (2) stating that any tenant improvements at the applicable Property to be funded by the requested disbursement
or the relevant portion thereof as to which such request for funds relates (other than with respect to deposits necessary or required
as a down-payment to initiate a tenant improvement) have been completed in a good and workmanlike manner and in accordance with
all applicable Legal Requirements, (3) stating that the Approved Leasing Expenses (or the relevant portions thereof) to be
funded or reimbursed from the disbursement in question have not been the subject of a previous disbursement, (4) stating
that all previous disbursements of Rollover Funds have been used to pay or reimburse the previously identified Approved Leasing
Expenses, and (5) stating that all outstanding trade payables (other than those to be paid from the requested disbursement,
those constituting Permitted Indebtedness or other requested disbursements then pending) have been paid in full, (B) a copy
of any license, permit or other approval by any Governmental Authority required in connection with any tenant improvements to
be funded or reimbursed from such disbursement and not previously delivered to Agent, (C) if the amount of such Rollover
Funds to be funded exceeds $100,000 in the aggregate, copies of appropriate lien waivers, conditional lien waivers or other evidence
of payment satisfactory to Agent, (D) if the amount of such Rollover Funds to be funded exceeds $100,000 in the aggregate,
at Agent’s option, a title search for the applicable Property indicating that such Property is free from all Liens, claims
and other encumbrances not previously approved by Agent, (E) if requested by Agent, with respect to disbursements from the Rollover
Account for tenant improvement costs, a current Tenant estoppel certificate in form and substance reasonably acceptable to Agent,
and (F) such other evidence as Agent shall reasonably request to demonstrate that the Approved Leasing Expenses to be funded by
the requested disbursement have been completed and are paid for or will be paid upon such disbursement to Borrower (or the portion
thereof as to which such request for disbursement has been submitted has been completed and is paid for (other than any retention
amount which is not a part of such disbursement request) or will be paid upon such disbursement to Borrower).


 




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Section 6.7          Casualty
and Condemnation Account. Borrower shall pay, or cause to be paid, to Agent all Insurance Proceeds or Awards due to any
Casualty or Condemnation in accordance with the provisions of Sections 5.2 and 5.3 (but subject to Section 5.4(a)),
which amounts shall be transferred into an Account (the “Casualty and Condemnation Account”). Amounts
deposited from time to time into the Casualty and Condemnation Account pursuant to this Section 6.7 are referred to herein
as the “Casualty and Condemnation Funds”. All Casualty and Condemnation Funds shall be held, disbursed
and/or applied in accordance with the provisions of Section 5.4 hereof.


 


Section 6.8          Cash
Collateral Funds. If a Trigger Period shall be continuing, all Available Cash shall be paid to Agent, which amounts shall
be transferred by Agent into an Account (the “Cash Collateral Account”) to be held by Agent as cash
collateral for the Debt. Amounts on deposit from time to time in the Cash Collateral Account pursuant to this Section 6.8
are referred to as the “Cash Collateral Funds”. Any Cash Collateral Funds on deposit in the Cash Collateral
Account not previously disbursed or applied shall, upon the termination of such Trigger Period, be added to the Rents disbursed
on the next Monthly Payment Date pursuant to Section 6.9.1.  Notwithstanding the foregoing, Agent shall have the right,
but not the obligation, at any time during the continuance of an Event of Default, in its sole and absolute discretion to apply
any and all Cash Collateral Funds then on deposit in the Cash Collateral Account to the Debt or Obligations, in such order and
in such manner as Agent shall elect in its sole and absolute discretion, including to make a prepayment of principal (together
with, if such Event of Default occurred on or prior to the Spread Maintenance Date, the applicable Spread Maintenance Premium,
if any, applicable thereto) or any other amounts due hereunder.


 


Section 6.9          Property
Cash Flow Allocation.


 


6.9.1      Order
of Priority of Funds in Deposit Account. On each Monthly Payment Date during the Term, except during the continuance of
an Event of Default, all funds deposited into the Deposit Account during the immediately preceding Collection Period shall be
applied on such Monthly Payment Date in the following order of priority:


 


(i)          First,
to the Tax Account, to make the required payments of Tax Funds as required under Section 6.3;


 


(ii)         Second,
to the Insurance Account, to make any required payments of Insurance Funds as required under Section 6.4;


 




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(iii)        Third,
to Agent, funds sufficient to pay the interest due on such Monthly Payment Date;


 


(iv)        Fourth,
to the Capital Expenditure Account, to make the required payments of Capital Expenditure Funds as required under Section 6.5;


 


(v)         Fifth,
to the Rollover Account, to make the required payments of Rollover Funds as required under Section 6.6;


 


(vi)        Sixth,
to Agent, of any other amounts then due and payable under the Loan Documents;


 


(vii)       Seventh,
to Borrower if a Trigger Period is continuing, funds in an amount equal to the Monthly Operating Expense Budgeted Amount;


 


(viii)      Eighth,
to Borrower if a Trigger Period is continuing, payments for Approved Extraordinary Operating Expenses, if any;


 


(ix)         Intentionally
omitted;


 


(x)          Ninth,
to the Current Mezzanine Payment Account, funds in an amount equal to the Monthly Current Mezzanine Debt Service Payment due and
owing on such Monthly Payment Date, plus any additional amount (other than principal payments) due and owing under the Current
Mezzanine Loan, in accordance with the Current Mezzanine Lender Payment Instruction with respect to such Monthly Payment Date;
and


 


(xi)         Lastly
all amounts remaining after payment of the amounts set forth in clauses (i) through (x) above (the “Available
Cash”):


 


(A)         during
a Trigger Period, to the Cash Collateral Account to be held or disbursed in accordance with Section 6.8; or


 


(B)         If
no Trigger Period is continuing, to Borrower.


 


6.9.2      Failure
to Make Payments. The failure of Borrower to make all of the payments required under clauses (i) through (vi)
of Section 6.9.1 in full on each Monthly Payment Date shall constitute an Event of Default under this Agreement;
provided, however, if adequate funds are available in the Deposit Account for such payments, and Borrower is not otherwise in
Default hereunder, the failure by the Deposit Bank to allocate such funds into the appropriate Accounts shall not constitute an
Event of Default.


 


6.9.3      Application
After Event of Default. Notwithstanding anything to the contrary contained in this Article 6, upon the occurrence
and during the continuance of an Event of Default, Agent, at its option, may apply any Gross Revenue then in the possession of
Agent, Servicer or Deposit Bank (including any Reserve Funds on deposit in any Cash Management Account) to the payment of the
Debt in such order, proportion and priority as Agent may determine in its sole and absolute discretion. Agent’s right to
withdraw and apply any of the foregoing funds shall be in addition to all other rights and remedies provided to Agent under the
Loan Documents.


 




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Section 6.10        Security
Interest in Reserve Funds. As security for payment of the Debt and the performance by Borrower of all other terms, conditions
and provisions of the Loan Documents, Borrower hereby pledges and assigns to Agent and Lenders, and grants to Agent and Lenders
a security interest in, all Borrower’s right, title and interest in and to all Gross Revenue and in and to all payments
to or monies held in the Clearing Account, the Deposit Account and Accounts created pursuant to this Agreement (collectively,
the “Cash Management Accounts”). Borrower hereby grants to Agent and Lenders a continuing security interest
in, and agrees to hold in trust for the benefit of Agent and Lenders, all Rents in its possession prior to the (i) payment
of such Gross Revenue to Agent or (ii) deposit of such Gross Revenue into the Deposit Account. Borrower shall not, without
obtaining the prior written consent of Agent, further pledge, assign or grant any security interest in any Cash Management Account,
or permit any Lien to attach thereto, or any levy to be made thereon, or any UCC Financing Statements, except those naming Agent
(on behalf of Lender) as the secured party, to be filed with respect thereto. This Agreement is, among other things, intended
by the parties to be a security agreement for purposes of the UCC. Upon the occurrence and during the continuance of an Event
of Default, Agent may apply any sums in any Cash Management Account in any order and in any manner as Agent shall elect in Agent’s
discretion without seeking the appointment of a receiver and without adversely affecting the rights of Agent to foreclose the
Lien of the Mortgage or exercise its other rights under the Loan Documents. Cash Management Accounts shall not constitute trust
funds and may be commingled with other monies held by Agent. Provided no Event of Default exists, all interest which accrues on
the funds in any Account (other than the Tax Account and the Insurance Account) shall accrue for the benefit of Borrower and shall
be taxable to Borrower and shall be added to and disbursed in the same manner and under the same conditions as the principal sum
on which said interest accrued. Upon repayment in full of the Debt, all remaining funds in the Accounts, if any, shall be promptly
disbursed to Borrower.


 


Article
7



PERMITTED TRANSFERS


 


Section 7.1          Permitted
Transfer of the Entire Properties.


 


(a)          Notwithstanding
the provisions of Section 4.2, Borrower shall have, following the earlier of six (6) months after the Closing Date and a
Securitization of the Loan, the right to convey the Properties to a new borrower (the “Transferee Borrower”),
and have Transferee Borrower assume all of Borrower’s obligations under the Loan Documents, and have replacement guarantors
and indemnitors replace the guarantor and indemnitors with respect to all of the obligations of the indemnitors and guarantor of
the Loan Documents from and after the date of such transfer (collectively, a “Transfer and Assumption”),
subject to the terms and full satisfaction of all of the conditions precedent set forth in Section 7.1(b).


 


(b)          A
Transfer and Assumption shall be subject to the following conditions:


 


(i)          Borrower
has provided Agent with not less than sixty (60) days prior written notice, which notice shall contain sufficient detail to enable
Agent to determine that the Transferee Borrower complies with the requirements set forth herein;


 


(ii)         no
Event of Default has occurred and is continuing;


 




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(iii)        Transferee
Borrower shall be a Special Purpose Bankruptcy Remote Entity in accordance with Section 4.4 and Schedule V;


 


(iv)        Transferee
Borrower shall be Controlled by a Person who (x) is a Qualified Transferee with a minimum ownership interest in the Transferee
Borrower reasonably acceptable to Agent and (y) whose identity, experience, financial condition and creditworthiness, including
net worth and liquidity, is acceptable to Agent in Agent’s sole discretion;


 


(v)         the
Properties shall be managed by a Qualified Manager or by a property manager reasonably acceptable to Agent;


 


(vi)        Transferee
Borrower shall have executed and delivered to Agent an assumption agreement in form and substance reasonably acceptable to Agent;


 


(vii)       each
replacement guarantor and indemnitor is an Approved Replacement Guarantor;


 


(viii)      each
Approved Replacement Guarantor shall deliver to Agent a guaranty of recourse obligations (in the same form as the guaranty of recourse
obligations delivered to Agent (on behalf of Lenders) by Guarantor on the date hereof) and an environmental indemnity agreement
(in the same form as the environmental indemnity agreement delivered to Agent (on behalf of Lenders) by Guarantor on the date hereof),
pursuant to which, in each case, the Approved Replacement Guarantor(s) agree(s) to be liable under each such guaranty of recourse
obligations from and after the date of such Transfer and Assumption and under such environmental indemnity agreement (whereupon
the previous guarantor shall be released from any further liability under the guaranty of recourse obligations and environmental
indemnity agreement for acts that arise from and after the date of such Transfer and Assumption and such Approved Replacement Guarantor(s)
shall be the “Guarantor” for all purposes set forth in this Agreement);


 


(ix)         Transferee
Borrower shall submit to Agent true, correct and complete copies of all documents reasonably requested by Agent concerning the
organization and existence of Transferee Borrower and each Approved Replacement Guarantor;


 


(x)          satisfactory
Patriot Act, OFAC and similar searches shall have been received by Agent with respect to (A) each Approved Replacement Guarantor,
(B) Transferee Borrower, (C) any Person that Controls Transferee Borrower or owns an equity interest in Borrower which equals or
exceeds ten percent (10%) and (D) any other Person reasonably required by Agent in order for Agent to fulfill its then-current
Patriot Act compliance guidelines;


 


(xi)         following
the securitization of the Loan, Agent shall have received a Rating Agency Confirmation from each of the applicable Rating Agencies
(if required pursuant to a Pooling and Servicing Agreement entered into in connection with the Securitization of the Loan);


 




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(xii)        counsel
to Transferee Borrower and each Approved Replacement Guarantor(s) shall deliver to Agent opinions in form and substance reasonably
satisfactory to Agent as to such matters as Agent shall require, which may include opinions as to substantially the same matters
as were required in connection with the origination of the Loan (including a new substantive non-consolidation opinion);


 


(xiii)       Borrower
shall cause to be delivered to Agent, an endorsement (relating to the change in the identity of the vestee and execution and delivery
of the Transfer and Assumption documents) to each Title Insurance Policy in form and substance acceptable to Agent, in Agent’s
reasonable discretion; 


 


(xiv)      Transferee
Borrower and/or Borrower, as the case may be, shall deliver to Agent, upon such conveyance, a transfer fee equal to (A) $250,000
for the first Transfer and Assumption or (B) 0.5% of the Outstanding Principal Balance for each subsequent Transfer and Assumption;


 


(xv)       the
proposed Transfer and Assumption shall not constitute or cause a default under the Current Mezzanine Loan;


 


(xvi)      intentionally
omitted;


 


(xvii)     there
shall be a simultaneous “Transfer and Assumption” (as such term is defined in the Current Mezzanine Loan Agreement)
pursuant to and in accordance with terms and provisions set forth in the Current Mezzanine Loan Agreement;


 


(xviii)    intentionally
omitted;


 


(xix)       if
the Interest Rate Cap Agreement shall have terminated as a result of such Transfer and Assumption, Borrower or the Transferee Borrower
shall (i) obtain and deliver to Agent not later than one (1) Business Day prior to the first day of the Transfer and Assumption,
one or more Replacement Interest Rate Cap Agreements from an Approved Counterparty, in a notional amount equal to the Outstanding
Principal Balance, which Replacement Interest Rate Cap Agreement(s) shall be (A) effective for the period commencing on the day
immediately following the Transfer and Assumption and ending on the last day of the Interest Period in which the Maturity Date
occurs, (B) have a strike price equal to the Strike Price (or the Extension Strike Price, if applicable), and (C) otherwise be
on the same terms as are set forth in Section 2.6 and (ii) execute and deliver an Acknowledgement with respect to each such
Replacement Interest Rate Cap Agreement;


 


(xx)        Borrower
or the Transferee Borrower shall deliver a Counterparty Opinion with respect to the Replacement Interest Rate Cap Agreement and
the related Acknowledgment within ten (10) days after the closing of such Transfer and Assumption;


 


(xxi)       Borrower
or the Transferee Borrower shall pay all of Agent’s and Lenders’ reasonable out-of-pocket costs and expenses in connection
with the Transfer and Assumption. Agent may, as a condition to evaluating any requested consent to a transfer, require that Borrower
posts a cash deposit with Agent in an amount equal to Agent’s and Lenders’ anticipated costs and expenses in evaluating
any such request for consent; and


 




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(xxii)      Borrower
shall have otherwise received Agent’s written consent to such Transfer and Assumption which consent may be withheld in Agent’s
sole discretion (provided, however, such consent shall, after the Securitization of the entire Loan, not be unreasonably withheld;
provided, further, that such consent may be conditioned upon Borrower delivering a Rating Agency Confirmation to Agent as to such
Transfer and Assumption).


 


(c)          Notwithstanding
anything to the contrary set forth in this Agreement, upon the closing of a Transfer and Assumption, Agent shall release Borrower
from all obligations under the Loan Documents.


 


(d)          It
shall not be a Default or an Event of Default hereunder if a Transfer and Assumption to which Agent has consented does not close
for any reason whatsoever.


 


Section 7.2          Permitted
Transfers. Notwithstanding anything to the contrary
contained in Section 4.2 or in any Loan Document, the following Transfers (herein, the “Permitted Transfers”)
shall be permitted hereunder:


 


(a)          a
Lease entered into in accordance with the Loan Documents;


 


(b)          a
Permitted Encumbrance;


 


(c)          the
transfer of publicly traded shares on a nationally or internationally recognized stock exchange in any indirect equity owner of
Borrower;


 


(d)          a
Transfer of any direct or indirect interest in Borrower related to or in connection with the estate planning of such transferor
to (1) an immediate family member of such interest holder (or to partnerships or limited liability companies Controlled solely
by one or more of such family members) or (2) a trust established for the benefit of such immediate family member, provided that:


 


(i)          Borrower
shall provide to Agent thirty (30) days prior written notice thereof;


 


(ii)         such
Transfer shall not otherwise result in a change of Control of Borrower or change of the day to day management and operations of
the Properties;


 


(iii)        Borrower
shall continue to be a Special Purpose Bankruptcy Remote Entity;


 


(iv)        if
such Transfer would cause the transferee, together with its Affiliates, to increase its direct or indirect interest in Borrower
to an amount which equals or exceeds ten percent (10%), such transferee shall be a Qualified Transferee;


 




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(v)         if
such Transfer shall cause the transferee together with its Affiliates to acquire or to increase its direct or indirect interest
in Borrower to an amount which equals or exceeds forty-nine percent (49%), to the extent that Agent reasonably determines that
the pairings in the most recently delivered non-consolidation opinion with respect to the Loan no longer apply, Borrower shall
deliver to Agent a non-consolidation opinion in form and substance reasonably satisfactory to Agent and satisfactory to the applicable
Rating Agencies;


 


(e)          the
Transfer of direct and/or indirect interests in Borrower to Current Mezzanine Loan Lender or its designee in accordance with the
terms and provisions of the Intercreditor Agreement;


 


(f)   
       intentionally omitted;


 


(g)          a
Transfer of any direct or indirect interest in Borrower that occurs by devise or bequest or by operation of law upon the death
or legal incapacity of a natural person that was the holder of such interest, provided that:


 


(i)          Borrower
shall give Agent notice of such Transfer together with copies of all instruments effecting such Transfer not less than thirty (30)
days after the date of such Transfer;


 


(ii)         Borrower
shall continue to be a Special Purpose Bankruptcy Remote Entity;


 


(iii)        the
Properties shall continue to be managed by a Qualified Manager or by a property manager reasonably acceptable to Agent and acceptable
to the applicable Rating Agencies;


 


(iv)         if
such Transfer would cause the transferee, together with its Affiliates, to increase its direct or indirect interest in Borrower
to an amount which equals or exceeds ten percent (10%), such transferee shall be a Qualified Transferee;


 


(v)         if
such Transfer results in a change of Control of Borrower to a Person other than (A) David Bistricer (directly or indirectly)
or (B) the estate of David Bistricer (during the pendency of the settlement by the estate of David Bistricer and if such Transfer
occurs as a result of the death of David Bistricer) (the “Key Principal Estate”); (x) if such Transfer
occurs prior to the occurrence of a Securitization, such Transfer is approved by Agent in writing within 30 days after any
such Transfer, which approval shall not be unreasonably withheld or (y) from and after a Securitization, Borrower shall deliver
a Rating Agency Confirmation from each applicable Rating Agency within sixty (60) days after any such Transfer (or such longer
time as may reasonably be necessary for Borrower to obtain the Rating Agency Confirmations, provided Borrower is diligently pursuing
same); and


 


(vi)        if
such Transfer shall cause (x) a change of Control of Borrower or (y) the transferee together with its Affiliates to acquire or
to increase its direct or indirect interest in Borrower to an amount which equals or exceeds forty-nine percent (49%), then, to
the extent that Agent reasonably determines that the pairings in the most recently delivered non-consolidation opinion with respect
to the Loan no longer apply, Borrower shall deliver to Agent a non-consolidation opinion in form and substance reasonably satisfactory
to Agent and the applicable Rating Agencies within thirty (30) days of Agent’s request for such non-consolidation opinion;


 




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(h)          provided
that no Event of Default shall then exist, one or more Transfers of any direct or indirect interest in Borrower shall be permitted
without Agent’s consent provided that:


 


(i)          no
such Transfer shall (x) cause the transferee (other than Key Principal), together with its Affiliates, to increase its direct
or indirect interest in Borrower to an amount which equals or exceeds forty-nine percent (49%) or (y) result in a change in Control
of Borrower;


 


(ii)         Borrower
shall continue to be a Special Purpose Bankruptcy Remote Entity;


 


(iii)        if
such Transfer would cause the transferee, together with its Affiliates, to increase its direct or indirect interest in Borrower
to an amount which equals or exceeds ten percent (10%), (x) such transferee is a Qualified Transferee and (y) Borrower shall
provide to Agent thirty (30) days prior written notice thereof;


 


(iv)        after
giving effect to such Transfer, (x) David Bistricer shall continue to Control the day to day operations of Borrower, (y) the Key
Principals collectively shall continue to own at least twenty-nine percent (29%) of all equity interests (direct or indirect) of
Borrower and (z) David Bistricer shall continue to own at least nine percent (9%) of all equity interests (direct or indirect)
of Borrower; and


 


(v)         the
Properties shall continue to be managed by a Qualified Manager or by a property manager reasonably acceptable to Agent and acceptable
to the applicable Rating Agencies;


 


(i)      
    a Condemnation.


 


(j)       
   a Transfer and Assumption; and/or


 


(k)          the
Transfer of interests in a Public Vehicle during the period from the formation of such Public Vehicle until the Public Vehicle
becomes publicly-listed on the New York Stock Exchange or another nationally recognized stock exchange shall be permitted hereunder.


 


For purposes of clause (d) above, “immediate
family member” shall mean a sibling, family trust, parent, spouse, child (or step-child), grandchild or other lineal descendant
of the interest holder.


 




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Notwithstanding anything to the contrary
contained in this Section 7.2, if, as a result of any Permitted Transfer, Guarantor no longer Controls Borrower and owns
any direct or indirect interest in Borrower (or if there were two or more Guarantors immediately prior to such Permitted Transfer,
no Guarantor any longer Controls Borrower or any such Guarantor no longer has a direct or indirect interest in Borrower), it shall
also be a condition hereunder that one or more Approved Replacement Guarantors shall execute and deliver a guaranty of recourse
obligations (in the same form as the guaranty of recourse obligations delivered to Agent (on behalf of Lenders) by Guarantor on
the date hereof) and an environmental indemnity agreement (in the same form as the environmental indemnity agreement delivered
to Agent (on behalf of Lenders) by Guarantor on the date hereof) on or prior to the date of such Permitted Transfer (or, in the
case of a Permitted Transfer described in clause (g), within thirty (30) days after the date of such Permitted Transfer),
pursuant to which, in each case, the Approved Replacement Guarantor(s) agree(s) to be liable under each such guaranty of recourse
obligations from and after the date of such Permitted Transfer and under such environmental indemnity agreement (whereupon the
previous guarantor shall be released from any further liability under the guaranty of recourse obligations and environmental indemnity
agreement from acts that arise from and after the date of such Permitted Transfer and such Approved Replacement Guarantor(s) shall
be the “Guarantor” for all purposes set forth in this Agreement; provided, however, that the previous guarantors shall
have the burden of proof with respect to any events or acts that such guarantors allege to have occurred after the date of any
such release in accordance with the terms hereof and the replacement guarantors shall have the burden of proof with respect to
any events or acts that such replacement guarantors allege to have occurred prior to the date such guarantors became replacement
guarantors hereunder); provided, further, in connection with a Permitted Transfer as set forth in clauses (e) and (f) above, previous
guarantor shall not be released and shall remain liable with respect to clause (xi) of Section 10.1 hereof and the Guaranteed
Obligations (as defined in the Guaranty) set forth in clause (iii) of the definition of such term).


 


Section 7.3          Cost
and Expenses; Searches; Copies.


 


(a)          Borrower
shall pay all out-of-pocket costs and expenses of Agent and Lenders in connection with any Transfer, whether or not such Transfer
is deemed to be a Permitted Transfer, including, without limitation, all reasonable fees and expenses of Agent’s and Lenders’
counsel, and the reasonable cost of any required counsel opinions related to REMIC or other securitization or tax issues and any
Rating Agency fees.


 


(b)          Borrower
shall provide Agent with copies of all organizational documents (if any) relating to any Permitted Transfer.


 


(c)          In
connection with any Permitted Transfer, to the extent a transferee shall own ten percent (10%) or more of the direct or indirect
ownership interests in Borrower immediately following such transfer (provided such transferee owned less than ten percent (10%)
of the direct or indirect ownership interests in Borrower as of the Closing Date), Borrower shall deliver (and Borrower shall be
responsible for any reasonable out of pocket costs and expenses in connection therewith), customary searches reasonably requested
by Agent in writing (including credit, judgment, lien, litigation, bankruptcy, criminal and watch list) reasonably acceptable to
Agent with respect to such transferee.


 




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Article
8



DEFAULTS


 


Section 8.1          Events
of Default. Each of the following events shall constitute an event of default hereunder (an “Event of Default”):


 


(i)          if
(A) the Obligations are not paid in full on the Maturity Date, (B) any regularly scheduled monthly payment of interest,
and, if applicable, principal due under the Note is not paid in full on the applicable Monthly Payment Date (unless Agent shall
have failed to make such payment in accordance with Section 6.9.1 hereof), (C) any prepayment of principal due under
this Agreement or the Note is not paid when due, (D) the Spread Maintenance Premium is not paid when due, or (E) unless
Agent shall have failed to make such deposit in accordance with Section 6.9.1 hereof, any deposit to the Reserve Funds is
not made on the required deposit date therefor;


 


(ii)         if
any other amount payable pursuant to this Agreement, the Note or any other Loan Document (other than as set forth in the foregoing
clause (i)) is not paid in full when due and payable in accordance with the provisions of the applicable Loan Document,
with such failure continuing for ten (10) Business Days after Agent delivers written notice thereof to Borrower (unless Agent shall
have failed to make such payment in accordance with Section 6.9.1 hereof);


 


(iii)        if
any of the Taxes or Other Charges are not paid prior to delinquency, subject to the right of Borrower to contest such Taxes and
Other Charges as provided in Section 4.6 hereof (provided that it shall not be an Event of Default if such past due Taxes
are Real Estate Taxes and there are sufficient funds in the Tax Account to pay such amounts when due, no other Event of Default
is then continuing and Agent or Servicer fails to make such payment in violation of this Agreement);


 


(iv)        if
the Policies are not (A) delivered to Agent within ten (10) days of Agent’s written request and (B) kept in full
force and effect, each in accordance with the terms and conditions hereof;


 


(v)         a
Transfer other than a Permitted Transfer occurs;


 


(vi)        if
any certification, representation or warranty made by Borrower or Guarantor herein or in any other Loan Document, or in any report,
certificate, financial statement or other instrument, agreement or document furnished to Agent shall have been false or misleading
in any material respect as of the date such representation or warranty was made (provided, however, as to (A) any such false or
misleading certification, representation or warranty which was not known to Borrower to be false or misleading when made or submitted
to Agent, and the condition causing such certification, representation or warranty to be false or misleading is susceptible of
being cured, the same shall not be an Event of Default hereunder unless Borrower fails within thirty (30) days following written
notice thereof to Borrower to undertake and complete all action necessary to either cure the same or make such certification, representation
or warranty true and correct in all material respects as and when made or (B) a Default under this clause (vi) that is due to a
breach in a representation caused by an adverse ruling after the Closing Date with respect to Rent Regulation Law, such breach
shall be deemed cured if Borrower complies with such adverse ruling);


 


(vii)       if
Borrower or Guarantor shall make an assignment for the benefit of creditors;


 




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(viii)      if
a receiver, liquidator or trustee shall be appointed for Borrower or Guarantor or if Borrower or Guarantor shall be adjudicated
a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or
any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Guarantor, or if
any proceeding for the dissolution or liquidation of Borrower or Guarantor shall be instituted, or if Borrower is substantively
consolidated with any other Person; provided, however, if such appointment, adjudication, petition, proceeding or consolidation
was involuntary and not consented to by Borrower or Guarantor, upon the same not being discharged, stayed or dismissed within sixty
(60) days following its filing;


 


(ix)         if
Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein
in contravention of the Loan Documents;


 


(x)          if
any of the factual assumptions contained in the Insolvency Opinion, or in any other non-consolidation opinion delivered to Agent
in connection with the Loan, or in any other non-consolidation opinion delivered subsequent to the closing of the Loan, is or shall
become untrue in any material respect (provided, however, that such untruth shall not constitute an Event of Default if within
ten (10) days after request by Agent, Borrower shall cause counsel reasonably acceptable to Agent (provided that the counsel that
delivered the Insolvency Opinion in connection with the closing of the Loan shall be deemed reasonably acceptable to Agent) to
deliver a new non-consolidation opinion to the effect that the failure of such factual assumption to be true shall not in any material
manner impair, negate or amend the opinions rendered in the Insolvency Opinion (or such other non-consolidation opinion most recently
delivered to Agent) in any material respect, which opinion shall be acceptable to Agent in its reasonable discretion and, in connection
with or following a Securitization, acceptable to the Rating Agencies);


 


(xi)         a
breach of the covenants set forth in Section 4.31 hereof;


 


(xii)        a
breach of the covenants set forth in Sections 4.4, or 4.23 hereof, provided, however, that such breach shall not
constitute an Event of Default if (A) such breach was inadvertent, immaterial and non-recurring, (B) if such breach is curable,
Borrower shall promptly cure such breach within ten (10) days of notice from Agent and (C) within ten (10) days after request by
Agent, Borrower shall cause counsel to deliver a new non-consolidation opinion to the effect that the breach shall not in any material
manner impair, negate or amend the opinions rendered in the Insolvency Opinion (or such other non-consolidation opinion most recently
delivered to Agent) in any material respect, which opinion shall be acceptable to Agent in its reasonable discretion and, in connection
with or following a Securitization, acceptable to the Rating Agencies);


 


(xiii)       if
Borrower shall be in default beyond any applicable grace or cure period under any mortgage or security agreement (except Permitted
Equipment Financing) covering any part of any Property whether it be superior, pari passu or junior in Lien to the Mortgage;


 


(xiv)      subject
to Borrower’s right to contest set forth in Section 4.3 of this Agreement, if any Property becomes subject to any
mechanic’s, materialman’s or other Lien (and such Lien is not removed within five (5) days) except a Permitted Encumbrance
or a Lien for Taxes not then due and payable;


 




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(xv)       the
alteration, improvement, demolition or removal of any material portion of the Improvements without the prior consent of Agent,
other than in accordance with this Agreement and the Leases at the Properties entered into in accordance with the Loan Documents;


 


(xvi)      if,
without Agent’s prior written consent, which consent shall not have been unreasonably withheld, (i) a Management Agreement
is terminated by Borrower (other than as expressly permitted in this Agreement), (ii) there is a material change in a Management
Agreement, or (iii) if there shall be a material default by Borrower under any Management Agreement beyond any applicable
notice or grace period, provided that, such material default shall not constitute an Event of Default if, prior to the termination
of the Management Agreement, Borrower enters into a new Management Agreement with a Replacement Manager in accordance with Section
4.14 of this Agreement;


 


(xvii)     if
Borrower or any Person owning a direct or indirect ownership interest (other than an indirect interest in Borrower of less than
ten percent (10%) with no ability to Control) in Borrower shall be convicted of a Patriot Act Offense by a court of competent jurisdiction;


 


(xviii)    a
breach of any representation, warranty or covenant contained in Section 3.1.18 hereof that has a Material Adverse Effect;


 


(xix)       if
Borrower breaches any covenant contained in Section 4.9 hereof and such breach continues for ten (10) days;


 


(xx)        if
there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such Loan Documents,
whether as to Borrower, Guarantor or the Properties, or if any other such event shall occur or condition shall exist, if the effect
of such event or condition is to accelerate the maturity of any portion of the Obligations or to permit Agent to accelerate the
maturity of all or any portion of the Obligations;


 


(xxi)       if
Borrower fails to obtain or maintain an Interest Rate Cap Agreement or replacement thereof in accordance with Section 2.6
and/or Section 2.7 hereof;


 


(xxii)      Guarantor
breaches any of the Guarantor Financial Covenants; or


 


(xxiii)     if
Borrower or Guarantor shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement or
any other Loan Document not specified in subsections (i) to (xxii) above, and such Default shall continue for ten (10) days
after notice to Borrower from 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 notice to Borrower from Agent in the case of any other such Default; provided, however, that if such non-monetary
Default is susceptible of cure but cannot reasonably be cured within such 30-day period, and provided further that Borrower and/or
Guarantor shall have commenced to cure such Default within such 30-day period shall and thereafter diligently and expeditiously
proceed to cure the same, such 30-day period shall be extended for such time as is reasonably necessary for Borrower and/or Guarantor
in the exercise of due diligence to cure such Default, such additional period not to exceed ninety (90) days.


 




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Section 8.2          Remedies.


 


8.2.1      Acceleration.
Upon the occurrence of an Event of Default (other than an Event of Default described in clauses (vii), (viii)
or (ix) of Section 8.1 above) and at any time thereafter, Agent may, in addition to any other rights or remedies
available to Agent and Lenders pursuant to this Agreement and the other Loan Documents or at law or in equity, take such action,
without notice or demand (and Borrower hereby expressly waives any such notice or demand), that Agent deems advisable to protect
and enforce its and Lenders’ rights against Borrower and in and to the Properties, including declaring the Obligations to
be immediately due and payable, and Agent may enforce or avail itself of any or all rights or remedies provided in the Loan Documents
against Borrower and the Properties, including all rights or remedies available at law or in equity; and upon any Event of Default
described in clauses (vii), (viii) or (ix) of Section 8.1 above, the Obligations of Borrower
hereunder and under the other Loan Documents shall immediately and automatically become due and payable in full, 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.


 


8.2.2      Remedies
Cumulative. During the continuance of an Event of Default, all or any one or more of the rights, powers, privileges
and other remedies available to Agent and Lenders 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 Agent at any time and from time to time,
whether or not all or any of the Obligations shall be declared due and payable, and whether or not 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 the Properties. The rights, powers and remedies of Agent under this Agreement shall be cumulative and not exclusive
of any other right, power or remedy which Agent and Lenders may have against Borrower pursuant to this Agreement or the other
Loan Documents, or existing at law or in equity or otherwise. Agent’s and Lenders’ rights, powers and remedies may
be pursued independently, singly, successively, together or otherwise, at such time and in such order as Agent may determine in
its sole discretion, to the fullest extent permitted by law, without impairing or otherwise affecting the other rights and remedies
of Agent and Lenders permitted by law or contract or as set forth herein or in the other Loan Documents or by equity. Without
limiting the generality of the foregoing, if an Event of Default is continuing (i) neither Agent nor any Lender shall be
subject to any “one action” or “election of remedies” law or rule, and (ii) all Liens and other rights,
remedies or privileges provided to Agent and Lenders shall remain in full force and effect until Agent and Lenders have exhausted
all of their remedies against the Properties and the Mortgage has been foreclosed, sold and/or otherwise realized upon in satisfaction
of the Obligations or the Obligations have been paid in full. 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.


 




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8.2.3      Severance.


 


(a)          During
the continuance of an Event of Default, Agent shall have the right from time to time to partially foreclose the Mortgage in any
manner and for any amounts secured by the Mortgage then due and payable as determined by Agent in its sole discretion, including
the following circumstances: (i) in the event Borrower defaults beyond any applicable grace or cure period in the payment
of one or more scheduled payments of principal and interest, Agent may foreclose the Mortgage to recover such delinquent payments,
or (ii) in the event Agent elects to accelerate less than the entire Outstanding Principal Balance, Agent may foreclose the
Mortgage to recover so much of the principal balance of the Loan as Agent may accelerate and such other sums secured by the Mortgage
as Agent may elect. Notwithstanding one or more partial foreclosures, each Property shall remain subject to a Mortgage to secure
payment of the sums secured by the Mortgage and not previously recovered.


 


(b)          During
the continuance of an Event of Default, Agent shall have the right from time to time to sever the Note and the other Loan Documents
into one or more separate note, mortgages and other security documents in such denominations as Agent shall determine in its sole
discretion for purposes of evidencing and enforcing its rights and remedies provided hereunder. Borrower shall execute and deliver
to Agent from time to time, promptly after the request of Agent, a severance agreement and such other documents as Agent shall
request in order to effect the severance described in the preceding sentence, all in form and substance reasonably satisfactory
to Agent. Borrower hereby absolutely and irrevocably appoints Agent as its true and lawful attorney, coupled with an interest,
in its name and stead to make and execute all documents necessary or desirable to effect the aforesaid severance, Borrower ratifying
all that its said attorney shall do by virtue thereof; provided, however, Agent shall not make or execute any such documents under
such power until three (3) days after notice has been given to Borrower by Agent of Agent’s intent to exercise its rights
under such power.


 


(c)          During
the continuance of an Event of Default, any amounts recovered from the Properties or any other collateral for the Loan after an
Event of Default may be applied by Agent toward the payment of any interest and/or principal of the Loan and/or any other amounts
due under the Loan Documents, in such order, priority and proportions as Agent in its sole discretion shall determine.


 


8.2.4      Agent’s
Right to Perform. If Borrower fails to perform any covenant or obligation contained herein and such failure shall continue
for a period of five (5) Business Days after Borrower’s receipt of written notice thereof from Agent, without in any way
limiting Agent’s right to exercise any of its rights, powers or remedies as provided hereunder, or under any of the other
Loan Documents, Agent may, but shall have no obligation to, perform, or cause the performance of, any covenant or obligation,
and all costs, expenses, liabilities, penalties and fines of Agent incurred or paid in connection therewith shall be payable by
Borrower to Agent upon demand and if not paid shall be added to the Obligations (and to the extent permitted under applicable
laws, secured by the Mortgage and the other Loan Documents) and shall bear interest thereafter at the Default Rate. Notwithstanding
the foregoing, Agent shall have no obligation to send notice to Borrower of any such failure.


 




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Article
9



SALE AND SECURITIZATION OF MORTGAGE


 


Section 9.1          Sale
of Mortgage and Securitization.


 


Subject to Section 9.4
hereof:


 


(a)          Agent
and Lenders shall have the right (i) to sell or otherwise transfer the Loan or any portion thereof as a whole loan, (ii) to
sell participation interests in the Loan, or (iii) to securitize the Loan or any portion thereof in a single asset securitization
or a pooled loan securitization. (The transactions referred to in clauses (i), (ii) and (iii) are
each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in
clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates,
notes or other securities issued in connection with a Secondary Market Transaction are hereinafter referred to as “Securities”).
At Agent’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.


 


(b)          If
requested by Agent, Borrower shall reasonably cooperate with Agent and assist Agent in satisfying the market standards to which
Agent customarily adheres or which may be required in the marketplace, by prospective investors, the Rating Agencies, applicable
Legal Requirements and/or otherwise in the marketplace in connection with any Secondary Market Transactions, including to:


 


(i)          (A)
provide updated financial and other information with respect to each Property, the business operated at each Property, Borrower
and the Manager, including, without limitation, the information set forth on Exhibit A attached hereto, (B) provide
updated budgets and rent rolls (including itemized percentage of floor area occupied and percentage of aggregate base rent for
each Tenant) relating to each Property, and (C) provide updated appraisals, market studies, environmental reviews and reports
(Phase I’s and, if appropriate, Phase II’s), property condition reports and other due diligence investigations of each
Property (the “Updated Information”), together, if customary, with appropriate verification of the Updated
Information through letters of auditors or opinions of counsel reasonably acceptable to Agent and the Rating Agencies;


 


(ii)         provide
opinions of counsel, which may be relied upon by Agent, trustee in any Securitization, underwriters, NRSROs and their respective
counsel, agents and representatives, as to non-consolidation, fraudulent conveyance and true sale or any other opinion customary
in Secondary Market Transactions or reasonably required by the Rating Agencies with respect to each Property, the Loan Documents,
and Borrower and its Affiliates, which counsel and opinions shall be reasonably acceptable to Agent and the Rating Agencies;


 


(iii)        provide
updated, as of the closing date of any Secondary Market Transaction, representations and warranties made in the Loan Documents
and such additional representations and warranties as the Rating Agencies may require; and


 




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(iv)        (A)
review any Disclosure Document or any interim draft thereof furnished by Agent to Borrower with respect to information contained
therein that was furnished to Agent by or on behalf of Borrower in connection with the preparation of such Disclosure Document
or in connection with the underwriting or closing of the Loan, including financial statements of Borrower and Guarantor, operating
statements and rent rolls with respect to the Properties, and (B) within three (3) Business Days following Borrower’s receipt
thereof, provide to Agent in writing any revisions to such Disclosure Document or interim draft thereof necessary or advisable
to insure that such reviewed information does not contain any untrue statement of a material fact or omit to state any material
fact necessary to make statements contained therein not misleading.


 


(c)          If,
at the time a Disclosure Document is being prepared for a Securitization, Agent reasonably expects that Borrower alone or Borrower
and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract
or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related
Properties collectively, will be a Significant Obligor, Borrower shall furnish to Agent upon request the following financial information:


 


(i)          if
Agent expects that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization,
may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans
included or expected to be included in the Securitization, net operating income for each Property and the Related Properties for
the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated
as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements
and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or


 


(ii)         if
Agent expects that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization,
may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included
in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be
limited to, a balance sheet with respect to the entity that Agent determines to be a Significant Obligor for the two most recent
Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income
and statements of cash flows with respect to each Property for the three most recent Fiscal Years and applicable interim periods,
meeting the requirements of Rule 3-02 of Regulation S-X (or if Agent determines that the Properties are the Significant Obligor
and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute
a business and not real estate under Regulation S-X or other legal requirements) were acquired from an unaffiliated third party
and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14
of Regulation S-X)).


 




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(d)          Further,
if requested by Agent, Borrower shall, promptly upon Agent’s request, furnish to Agent financial data or financial statements
meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Agent, for any Tenant under any Lease
at any Property if, in connection with a Securitization, Agent expects there to be, as of the cutoff date for such Securitization,
a concentration with respect to such Tenant or group of Affiliated Tenants under any Lease within all of the mortgage loans included
or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants under any Lease would constitute
a Significant Obligor. Borrower shall furnish to Agent, in connection with the preparation of the Disclosure Documents and on an
ongoing basis, financial data and/or financial statements with respect to such Tenants under any Lease meeting the requirements
of Item 1112(b)(1) or (2) of Regulation AB, as specified by Agent, but only for so long as such entity or entities are a Significant
Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange
Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required
to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.


 


(e)          If
Agent reasonably determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties
alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Agent, on
an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation
AB, as specified by Agent, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act
Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available”
to holders of the Securities under Regulation AB or applicable Legal Requirements.


 


(f)      
    Any financial data or financial statements provided pursuant to this Section 9.1 shall be
furnished to Agent within the following time periods:


 


(i)          with
respect to information requested in connection with the preparation of Disclosure Documents for a Securitization, within ten (10)
Business Days after notice from Agent; and


 


(ii)         with
respect to ongoing information required under Section 9.1(d) and (e) above, (1) not later than thirty (30) days after
the end of each fiscal quarter of Borrower and (2) not later than seventy-five (75) days after the end of each Fiscal Year of Borrower.


 


(g)          If
requested by Agent, Borrower shall provide Agent, promptly, and in any event within five (5) Business Days following Agent’s
request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Agent
shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment,
modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably
requested by the Agent.


 


(h)          If
requested by Agent, whether in connection with a Securitization or at any time thereafter during which the Loan and any Related
Loans are included in a Securitization, but not more than three times within any twelve (12) month period, Borrower shall provide
Agent, within five (5) days after Agent’s request, a list of Tenants (including all affiliates of such Tenants) that in the
aggregate of all the Properties (1) occupy 10% or more (but less than 20%) of the total floor area of the improvements or represent
10% or more (but less than 20%) of aggregate base rent, and (2) occupy 20% or more of the total floor area of the improvements
or represent 20% or more of aggregate base rent.


 




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(i)     
     All financial statements provided by Borrower pursuant to this Section 9.1(c), (d), (e)
or (f) shall be prepared in accordance with GAAP, and shall meet the requirements of Regulation S-K or Regulation S-X,
as applicable, Regulation AB, and other applicable Legal Requirements. All financial statements relating to a Fiscal Year
shall be audited by Independent Accountants in accordance with generally accepted auditing standards, Regulation S-X or
Regulation S-K, as applicable, Regulation AB, and all other applicable Legal Requirements, shall be accompanied by the
manually executed report of the Independent Accountants thereon, which report shall meet the requirements of Regulation S-K
or Regulation S-X, as applicable, Regulation AB, and all other applicable Legal Requirements, and shall be further
accompanied by a manually executed written consent of the Independent Accountants, in form and substance reasonably
acceptable to Agent, to the inclusion of such financial statements in any Disclosure Document and any Exchange Act Filing and
to the use of the name of such Independent Accountants and the reference to such Independent Accountants as
“experts” in any Disclosure Document and Exchange Act Filing (or comparable information is required to
otherwise be available to holders of the Securities under Regulation AB or applicable Legal Requirements), all of which shall
be provided at the same time as the related financial statements are required to be provided. All other financial statements
shall be certified by the chief financial officer or other authorized representative (whose function is similar to that of a
chief financial officer) of Borrower, which certification shall state that such financial statements meet the requirements
set forth in the first sentence of this paragraph.


 


(j)          In
connection with any Secondary Market Transaction, Agent shall have the right, and Borrower hereby authorizes Agent, to disclose
any and all information in Agent’s possession regarding Borrower, Guarantor, any Manager, any Property and/or the Loan in
any Disclosure Document, in any promotional or marketing materials that are prepared by or on behalf of Agent in connection with
such Secondary Market Transaction or in connection with any oral or written presentation made by or on behalf of Agent, including
without limitation, to any actual or potential investors and any Rating Agencies and other NRSROs.


 


(k)          Agent
shall provide Borrower with prior written notice if Regulation S-K, Regulation S-X or Regulation AB is applicable pursuant to a
Securitization.


 


Section 9.2          Securitization
Indemnification.


 


(a)          Borrower
understands that information provided to Agent by Borrower and its agents, counsel and representatives relating to Borrower, Guarantor,
their respective constituent owners, and the Properties (such information, whether provided pursuant to Section 9.1 above
or otherwise in connection with the Loan, collectively, the “Borrower Provided Information”; which “Borrower
Provided Information” shall be deemed not to include (i) an untrue statement of any material fact contained in the Borrower
Provided Third Party Report, except to the extent Borrower or Guarantor had actual knowledge at the time Borrower or Guarantor
provided the Borrower Provided Third Party Report that the Borrower Provided Third Party Report contained such untrue statement
of material fact and Borrower failed to alert Agent to same, or (ii) an omission of a material fact in the Borrower Provided
Third Party Report (which omission shall be deemed material if such fact should have been included in the Borrower Provided Third
Party Report in order to make the statements, in light of the circumstances under which they were made, not misleading), except
to the extent Borrower or Guarantor had actual knowledge at the time Borrower or Guarantor provided the Borrower Provided Third
Party Report that the Borrower Provided Third Party Report reflected such omission and Borrower failed to alert Agent to same)
may be included in preliminary and final disclosure documents in connection with any Secondary Market Transaction, including a
Securitization, including an offering circular, a prospectus, prospectus supplement, private placement memorandum or other offering
document (each, a “Disclosure Document”) and may also be included in filings with the Securities and
Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the
Securities and Exchange Act of 1934, as amended (the “Exchange Act”), and may be made available to investors
or prospective investors in the Securities, investment banking firms, NRSROs, accounting firms, law firms and other third-party
advisory and service providers relating to any Secondary Market Transaction, including a Securitization. Borrower also understands
that the findings and conclusions of any third-party due diligence report obtained by the Agent, the Issuer or the Securitization
placement agent or underwriter may be made publicly available if required, and in the manner prescribed, by Section 15E(s)(4)(A)
of the Exchange Act and any rules promulgated thereunder.


 




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(b)          Borrower
hereby agrees to indemnify Agent (and for purposes of this Section 9.2, Agent shall include the initial agent, initial lenders,
their successors and assigns, and their respective officers and directors) and each Person who controls the Agent within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Lender Group”),
the issuer of the Securities (the “Issuer” and for purposes of this Section 9.2, Issuer shall
include its officers, director and each Person who controls the Issuer within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act), and any placement agent or underwriter with respect to the Securitization, each of their respective
officers and directors and each Person who controls the placement agent or underwriter within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any actual
losses, claims, damages or liabilities (collectively, the “Liabilities”) to which Agent, Lenders, the
Lender Group, the Issuer or the Underwriter Group may become subject insofar as the Liabilities arise out of, or are based upon,
(A) any untrue statement or alleged untrue statement of any material fact contained in the Borrower Provided Information,
(B) the omission or alleged omission to state therein a material fact required to be stated in the Borrower Provided Information
or necessary in order to make the statements in the Borrower Provided Information, in light of the circumstances under which they
were made, not misleading, or (C) a breach of the representations and warranties made by Borrower in Section 3.1.31 of this
Agreement (Full and Accurate Disclosure); except, in each case, that (I) Borrower’s obligation to indemnify for any
Liabilities that arise in connection with a Disclosure Document that derives in part from information contained in Borrower Provided
Information and in part from information either prepared by the Lender Group, the Issuer, the Underwriter Group or any other Person
shall be limited to any untrue statement or omission of material fact contained in Borrower Provided Information known to Borrower
that results directly from the Borrower Provided Information (or omission from the Borrower Provided Information) and (II) Borrower
shall have no responsibility for (w) any statements contained in any Disclosure Document to which Borrower or its authorized representative
have objected to (or requested changes to) in writing to Agent or that were derived from Borrower Provided Third Party Reports,
(x) numbers which have been submitted by Borrower and adjusted by any Indemnified Person from those submitted by Borrower, to the
extent of such adjustment, (y) third party reports, such as environmental and physical condition reports that do not constitute
Borrower Provided Third Party Reports, and (z) any financial projections. Borrower also agrees to reimburse Agent, Lenders, the
Lender Group, the Issuer and/or the Underwriter Group for any actual legal or other expenses reasonably incurred by Agent, Lenders,
the Lender Group, the Issuer and/or the Underwriter Group in connection with investigating or defending the Liabilities. Borrower’s
liability under this paragraph will be limited to Liability that arises out of, or is based upon, an untrue statement or omission
made in reliance upon, and in conformity with, information furnished to Agent by or on behalf of Borrower in connection with the
preparation of the Disclosure Document or in connection with the underwriting or closing of the Loan, including financial statements
of Borrower, operating statements and rent rolls with respect to the Properties. This indemnification provision will be in addition
to any liability which Borrower may otherwise have. Borrower acknowledges and agrees that any Person that is included in the Lender
Group, the Issuer and/or the Underwriter Group that is not a direct party to this Agreement shall be deemed to be a third-party
beneficiary to this Agreement with respect to this Section 9.2(b).


 




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(c)          In
connection with any Exchange Act Filing or other reports containing comparable information that is required to be made “available”
to holders of the Securities under Regulation AB or applicable Legal Requirements, Borrower agrees to (i) indemnify Agent, Lenders,
the Lender Group, the Issuer and the Underwriter Group for Liabilities to which Agent, Lenders, the Lender Group, the Issuer and/or
the Underwriter Group may become subject insofar as the Liabilities arise out of, or are based upon, an alleged untrue statement
or alleged omission or an untrue statement or omission made in reliance upon, and in conformity with, Borrower Provided Information
furnished to Agent by or on behalf of Borrower in connection with the preparation of the Disclosure Document or in connection with
the underwriting or closing of the Loan, including financial statements of Borrower, operating statements and rent rolls with respect
to any Property, and (ii) reimburse Agent, Lenders, the Lender Group, the Issuer and/or the Underwriter Group for any actual
legal or other expenses reasonably incurred by Agent, Lenders, the Lender Group, the Issuer and/or the Underwriter Group in connection
with defending or investigating the Liabilities.


 


(d)          Promptly
after receipt by an indemnified party under this Section 9.2 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 9.2, notify
the indemnifying party in writing of the commencement thereof, but the omission to so notify the indemnifying party will not relieve
the indemnifying party from any liability which the indemnifying party may have to any indemnified party hereunder except to the
extent that failure to notify causes prejudice to the indemnifying party. In the event that any action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled, jointly with
any other indemnifying party, to participate therein and, to the extent that it (or they) may elect by written notice delivered
to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof
with counsel reasonably satisfactory to such indemnified party. After notice from the indemnifying party to such indemnified party
pursuant to the immediately preceding sentence of this Section 9.2(d), such indemnifying party shall not pay for any
legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable
costs of investigation; provided, however, if the defendants in any such action include both the indemnified party and the indemnifying
party and the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other
indemnified parties that are different from or additional to those available to the indemnifying party, the indemnified party or
parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense
of such action on behalf of such indemnified party at the cost of the indemnifying party. The indemnifying party shall not be liable
for the expenses of more than one separate counsel unless an indemnified party shall have reasonably concluded that there may be
legal defenses available to it that are different from or additional to those available to any other indemnified party. Without
the prior written consent of Agent (which consent shall not be unreasonably withheld or delayed), no indemnifying party shall settle
or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect
of which indemnification may be sought hereunder (whether or not any indemnified party is an actual or potential party to such
claim, action, suit or proceeding) unless the indemnifying party shall have given Agent reasonable prior written notice thereof
and shall have obtained an unconditional release of each indemnified party hereunder from all liability arising out of such claim,
action, suit or proceedings, and such settlement requires no statement as to, or an admission of, fault, culpability or a failure
to act, by or on behalf of the Indemnified Party.


 




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(e)          In
order to provide for just and equitable contribution in circumstances in which the indemnity agreement provided for in Section 9.2(b)
or (c) is for any reason held to be unenforceable as to an indemnified party in respect of any Liabilities (or action in respect
thereof) referred to therein which would otherwise be indemnifiable under Section 9.2(b) or (c), the indemnifying
party shall contribute to the amount paid or payable by the indemnified party as a result of such Liabilities (or action in respect
thereof); provided, however, that no Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
In determining the amount of contribution to which the respective parties are entitled, the following factors shall be considered:
(i) the Issuer’s and Borrower’s relative knowledge and access to information concerning the matter with respect
to which the claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any
other equitable considerations appropriate in the circumstances. Agent and Borrower hereby agree that it would not be equitable
if the amount of such contribution were determined by pro rata or per capita allocation. In no event shall Borrower be required
to indemnify an indemnified party with respect to any matter to the extent arising from the gross negligence or willful misconduct
of an indemnified party.


 


(f)          The
liabilities and obligations of both Borrower and Agent under this Section 9.2 shall survive the termination of this
Agreement and the satisfaction and discharge of the Debt.


 


Section 9.3          Severance.
Subject to Section 9.4 hereof:


 


9.3.1      Severance
Documentation. Agent, without in any way limiting Agent’s other rights hereunder, in its sole and absolute discretion,
shall have the right, at any time (whether prior to or after any sale, participation or Securitization of all or any portion of
the Loan), to require Borrower (at no material cost to Borrower) to execute and deliver “component” notes and/or modify
the Loan in order to create one or more senior and subordinate notes (i.e., an A/B or A/B/C structure) and/or one or more additional
components of the Note or Notes), reduce the number of components of the Note or Notes, revise the interest rate for each component,
reallocate the principal balances of the Notes and/or the components, increase or decrease the monthly debt service payments for
each component or eliminate the component structure and/or the multiple note structure of the Loan (including the elimination
of the related allocations of principal and interest payments), provided that (a) the Outstanding Principal Balance of all components
immediately after the effective date of such modification equals the Outstanding Principal Balance immediately prior to such modification
and the weighted average of the interest rates for all components immediately after the effective date of such modification equals
the interest rate of the original Note immediately prior to such modification, (b) the obligations of Borrower shall not be materially
increased hereby and (c) such “component” notes and/or senior and subordinate notes shall be structured such that
permitted prepayments (other than prepayments made in connection with a Casualty or Condemnation) shall not, provided no Event
of Default is then continuing, result in any “rate creep”. At Agent’s election, each note comprising the Loan
may be subject to one or more Securitizations. Agent shall have the right to modify the Note and/or Notes and any components in
accordance with this Section 9.3 and, provided that such modification shall comply with the terms of this Section 9.3,
it shall become immediately effective.


 




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9.3.2      Intentionally
Omitted. 


 


9.3.3      Cooperation;
Execution; Delivery. Borrower shall reasonably cooperate with all reasonable requests of Agent in connection
with this Section 9.3. If requested by Agent, Borrower shall promptly execute and deliver such documents as shall be reasonably
required by Agent and requested by any Rating Agency in connection with any modification pursuant to this Section 9.3,
all in form and substance reasonably satisfactory to Agent and Borrower and satisfactory to any applicable Rating Agency, including,
the severance of security documents. In the event Borrower fails to execute and deliver such documents to Agent within five (5)
Business Days following such request by Agent, Borrower hereby absolutely and irrevocably appoints Agent as its true and lawful
attorney, coupled with an interest, in its name and stead to make and execute all documents necessary or desirable to effect such
transactions, Borrower hereby ratifying all that such attorney shall do by virtue thereof. It shall be an Event of Default under
this Agreement, the Note, the Mortgage and the other Loan Documents if Borrower fails to comply with any of the terms, covenants
or conditions of this Section 9.3 after expiration of ten (10) Business Days after notice thereof.


 


Section 9.4          Costs
and Expenses. Notwithstanding anything to the contrary contained in this Article 9, Borrower shall not be required
to incur any material costs or expenses in the performance of its obligations under Sections 9.1(a) or (b) above or Section
9.3 above (including the reasonable fees and expenses of Borrower’s accountants, consultants and counsel) in excess
of $10,000.


 




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Article
10



MISCELLANEOUS


 


Section 10.1        Exculpation.
Subject to the qualifications below, Agent shall not enforce the liability and obligation of Borrower to perform and observe the
Obligations contained in the Note, this Agreement, the Mortgage or the other Loan Documents by any action or proceeding wherein
a money judgment shall be sought against Borrower, except that Agent may bring a foreclosure action, an action for specific performance
or any other appropriate action or proceeding to enable Lender to enforce and realize upon its (and the Lenders’) interest
under the Note, this Agreement, the Mortgage and the other Loan Documents, or in all or any of the Properties, the Gross Revenues
or any other collateral given to Agent (on behalf of Lenders) 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 Borrower’s interest in the Properties, in the Gross Revenues and in any other collateral given to Agent (on behalf
of Lenders), and Agent (on behalf of Lenders), by accepting the Note, this Agreement, the Mortgage and the other Loan Documents,
shall not sue for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under or by reason
of or under or in connection with the Note, this Agreement, the Mortgage or the other Loan Documents. The provisions of this Section 10.1
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 Agent to name Borrower as a party defendant in any action or suit for foreclosure
and sale under the Mortgage; (c) affect the validity or enforceability of any of the Loan Documents or any guaranty made
in connection with the Loan or any of the rights and remedies of Agent and Lenders thereunder; (d) impair the right of Agent
to obtain the appointment of a receiver; (e) impair the enforcement of the Assignment of Leases; (f) impair the enforcement
of the Environmental Indemnity; (g) constitute a prohibition against Agent to seek a deficiency judgment against Borrower
in order to fully realize the security granted by the Mortgage or to commence any other appropriate action or proceeding in order
for Agent to exercise its remedies against all or any of the Properties; or (h) constitute a waiver of the right of Agent to enforce
the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any loss, damage (excluding punitive
damages except in the case of punitive damages paid by Agent or any Lender to a third party where such damages do not directly
arise as a result of the acts of Agent), cost, expense, liability, claim or other obligation actually incurred by Agent or any
Lender (including reasonable attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following
(all such liability and obligation of Borrower for any or all of the following being referred to herein as “Borrower’s
Recourse Liabilities”):


 


(i)          fraud,
willful misconduct, intentional misrepresentation of a material fact known to Borrower or Guarantor or failure to disclose a material
fact known to Borrower or Guarantor by or on behalf of Borrower, Guarantor, any Affiliate of Borrower or Guarantor, including by
reason of any claim under the Racketeer Influenced and Corrupt Organizations Act (RICO);


 


(ii)         the
breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity, subject to the terms
and provisions of the Environmental Indemnity;


 


(iii)        wrongful
removal or destruction of any portion of any Property or damage to any Property caused by willful misconduct or gross negligence
of Borrower, Guarantor or their respective Affiliates;


 


(iv)        any
physical waste of any of the Properties by Borrower, Guarantor or their respective Affiliates;


 


(v)         the
forfeiture by Borrower of any Property, or any portion thereof, because of the conduct or purported conduct of criminal activity
by Borrower or Guarantor or any of their respective agents or representatives in connection therewith;


 




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(vi)        the
misappropriation or conversion by or on behalf of Borrower of (A) any Insurance Proceeds paid by reason of any loss, damage
or destruction to any Property, (B) any Awards or other amounts received in connection with the Condemnation of all or a portion
of any Property, or (C) any Gross Revenues (including Rents, Insurance Proceeds, security deposits, advance deposits or any
other deposits and Lease Termination Payments) or (D) any other funds due under the Loan Documents, including, in connection with
any of the foregoing, by reason of failure to comply with Section 6.1 hereof or breach of the Clearing Account Agreement
or the Cash Management Agreement;


 


(vii)       failure
to pay charges for labor or materials or other charges (other than Taxes) that can create Liens on any portion of any Property,
other than (i) charges incurred by or on behalf of Agent or a receiver put in place by Agent, subject to Permitted Encumbrances
or (ii) charges that relate to a period from and after a foreclosure of the Loan or a conveyance in lieu of foreclosure of the
Loan, unless such charges were incurred by Borrower, Guarantor or an Affiliate of Borrower or Guarantor;


 


(viii)      the
failure to pay Taxes or transfer taxes, other than those Taxes or transfer taxes that relate to a period from and after a foreclosure
of the Loan or a conveyance in lieu of foreclosure of the Loan; unless (x) Rents received during the tax period in question are
insufficient to pay all of Borrower’s current and/or past due liabilities (including such Taxes) with respect to the Properties
or (y) funds to pay such Taxes were, at the time in question, available in the Tax Account and Agent failed to pay (or make such
Tax Funds available to pay) such Taxes;


 


(ix)         failure
to obtain and maintain the fully paid for Policies in accordance with Section 5.1.1 hereof, other than the failure
to obtain or maintain Policies that relate to a period from and after a foreclosure of the Loan or a conveyance in lieu of foreclosure
of the Loan; unless (x) Rents received during the period in question are insufficient to pay all of Borrower’s current and/or
past due liabilities (including such Policies) with respect to the Properties or (y) funds to pay such Insurance Premiums were,
at the time in question, available in the Insurance Account and Agent failed to pay (or make such Insurance Funds available to
pay) such Insurance Premiums;


 


(x)          Borrower’s
indemnification of Agent set forth in Section 9.2 hereof;


 


(xi)         any
(A) actual or alleged violation or breach of any applicable Rent Regulation Laws (including any actual or alleged overcharges in,
or rollback to, rent payable by any current or former Tenant) and/or (B) any breach of the covenants set forth in Section 4.33
hereof;


 


(xii)        a
breach of the covenants set forth in Section 4.4 hereof (other than those breaches covered by clause (i) of the Springing
Recourse Events below, and breaches of the covenants set forth in clauses (f) and (i) in the definition of “Special
Purpose Bankruptcy Remote Entity” attached hereto as Schedule V);


 


(xiii)       any
cost or expense incurred by Agent or any Lender in connection with the enforcement of its rights and remedies hereunder or under
any other Loan Document; and/or


 




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(xiv)      any
losses, damages, costs, expenses, liabilities, claims or other obligations imposed upon or incurred by or asserted against Agent
or any Lender arising out of or in any way relating to the Equinox Litigation.


 


Notwithstanding anything
to the contrary in this Agreement or any of the other Loan Documents, (A) neither Agent nor any Lender shall be deemed to
have waived any right which Agent or any 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 Obligations or to require that all collateral shall continue to
secure all of the Obligations owing to Lender in accordance with the Loan Documents, and (B) the Obligations shall be fully
recourse to Borrower in the event that any of the following occur (each, a “Springing Recourse Event”):
(1) either (x) a breach of the covenant set forth in Section 4.4 hereof or a breach by Current Mezzanine Borrower of
the “special purpose entity” covenants contained in the Current Mezzanine Loan Documents, in each case with respect
to clause (d) of the definition of Special Purpose Bankruptcy Remote Entity (or the equivalent with respect to the Current Mezzanine
Loan Documents), that results in the substantive consolidation of the assets and liabilities of Borrower or Current Mezzanine Borrower
with any other Person as a result of such breach, or (y) a breach of the covenants set forth in Section 4.4 hereof with
respect to clauses (a), (b), (l) and (n) of the definition of Special Purpose Bankruptcy Remote Entity (“Specific SPE
Covenants”) or a breach by Current Mezzanine Borrower of the “special purpose entity” covenants contained
in the Current Mezzanine Loan Documents relating to the Specific SPE Covenants, (2) Borrower fails to obtain Agent’s
prior consent to any subordinate financing secured by any Property or other voluntary Lien encumbering any Property (to the extent
Agent consent is required pursuant to this Agreement); (3) Borrower fails to obtain Agent’s prior consent to any Transfer
of any Property or any interest therein or any Transfer of any direct or indirect interest in Borrower, in either case as required
by the Mortgage or this Agreement other than a Permitted Transfer; (4) Borrower files a voluntary petition under the Bankruptcy
Code or any other Federal or state bankruptcy or insolvency law; (5) Borrower is substantively consolidated with any other Person
or Current Mezzanine Borrower is substantively consolidated with another Person; unless such consolidation was involuntary
and not consented to by Borrower, Current Mezzanine Borrower or any Guarantor and is discharged, stayed or dismissed within thirty
(30) days following the occurrence of such consolidation; (6) the filing of an involuntary petition against Borrower or Current
Mezzanine Borrower under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any other Person in
which Borrower or Current Mezzanine Borrower colludes with or otherwise assists such Person, and/or Borrower and/or Current Mezzanine
Borrower solicits or causes to be solicited petitioning creditors for any involuntary petition against Borrower or Current Mezzanine
Borrower by any Person; (7) Borrower or Current Mezzanine Borrower files 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 or any other Federal
or state bankruptcy or insolvency law; (8) Borrower or any Affiliate, officer, director or representative which controls Borrower
consents to, or acquiesces in, or joins in (other than at Agent’s express written request), an application for the appointment
of a custodian, receiver, trustee or examiner for Borrower or any portion of the Properties; (9) Borrower makes an assignment for
the benefit of creditors or admits, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they
become due which admission is used as evidence of Borrower’s insolvency in connection with an involuntary petition filed
against Borrower under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by a Person other than Agent
(provided, that if Borrower admits in writing to Agent, any Lender or any servicer of the Loan that (A) Borrower cannot pay expenses
of operating the Property, (B) Borrower cannot pay amounts due under the Loan or (C) Borrower cannot refinance the Loan on the
Maturity Date, and Borrower does not make any other admission in writing other than those described in clauses (A) - (C), such
admission shall not constitute Borrower’s “admitting in writing its insolvency or inability to pay its debts as they
become due”); or (10) if any Guarantor (or any Person comprising any Guarantor), Borrower or any Affiliate of Borrower, in
connection with any enforcement action or exercise or assertion of any right or remedy by or on behalf of Agent or any Lender under
or in connection with the Guaranty, the Note, the Mortgage or any other Loan Document, seeks a defense, judicial intervention or
injunctive or other equitable relief of any kind, or asserts in a pleading filed in connection with a judicial proceeding any defense
against Agent or any Lender or any right in connection with any security for the Loan, except for defenses and counterclaims raised
in good faith.


 




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Section 10.2        Survival;
Successors and Assigns. This Agreement and all covenants, agreements, representations and warranties made herein and in
the certificates delivered pursuant hereto shall survive the making by Lenders of the Loan and the execution and delivery to Lenders
of the Note, and shall continue in full force and effect so long as all or any of the Obligations are 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 Borrower, shall inure to the benefit of the legal representatives,
successors and assigns of Agent and Lenders.


 


Section 10.3        Agent’s
Discretion; Rating Agency Review Waiver.


 


(a)          Whenever
pursuant to this Agreement Agent exercises any right given to it to approve or disapprove any matter, or any arrangement or term
is to be satisfactory to Agent, the decision of Agent to approve or disapprove such matter 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 Agent and shall be final and conclusive. Prior to a Securitization, whenever pursuant to this Agreement the Rating Agencies
are given any right to approve or disapprove any matter, or any arrangement or term is to be satisfactory to the Rating Agencies,
the decision of Agent to approve or disapprove such matter or to decide whether arrangements or terms are satisfactory or not satisfactory,
based upon Agent’s determination of Rating Agency criteria, shall be substituted therefor.


 


(b)          Whenever,
pursuant to this Agreement or any other Loan Documents, a Rating Agency Confirmation is required from each applicable Rating Agency,
in the event that any applicable Rating Agency “declines review”, “waives review” or otherwise indicates
in writing or otherwise to Agent’s or Servicer’s satisfaction that no Rating Agency Confirmation will or needs to be
issued with respect to the matter in question (each, a “Review Waiver”), then the Rating Agency Confirmation
requirement shall be deemed to be satisfied with respect to such matter. It is expressly agreed and understood, however, that receipt
of a Review Waiver (i) from any one Rating Agency shall not be binding or apply with respect to any other Rating Agency and
(ii) with respect to one matter shall not apply or be deemed to apply to any subsequent matter for which Rating Agency Confirmation
is required.


 




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(c)          Prior
to a Securitization or in the event that there is a Review Waiver, if Agent does not have a separate and independent approval right
with respect to the matter in question, then the term Rating Agency Confirmation shall be deemed instead to require the prior written
consent of Agent.


 


Section 10.4        Governing
Law.


 


(a)          THIS
AGREEMENT WAS NEGOTIATED IN THE STATE OF NEW YORK, AND MADE BY AGENT AND LENDERS AND ACCEPTED BY BORROWER IN THE STATE OF NEW YORK,
AND THE PROCEEDS OF THE NOTE 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 AND THE OBLIGATIONS
ARISING HEREUNDER 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 (WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS) 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, COMMONWEALTH OR DISTRICT, AS APPLICABLE, IN WHICH THE PROPERTIES LOCATED, IT BEING UNDERSTOOD THAT, TO THE FULLEST EXTENT
PERMITTED BY THE LAW OF SUCH STATE, COMMONWEALTH OR DISTRICT, AS APPLICABLE, 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 AND THE NOTE, AND THIS AGREEMENT AND THE NOTE 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.


 




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(b)          ANY
LEGAL SUIT, ACTION OR PROCEEDING AGAINST AGENT, ANY LENDER OR BORROWER ARISING OUT OF OR RELATING TO THIS AGREEMENT MAY AT 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, AGENT AND EACH LENDER 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, AGENT AND EACH LENDER HEREBY
IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY SUCH COURT IN ANY SUIT, ACTION OR PROCEEDING. BORROWER AGREES THAT SERVICE
OF PROCESS UPON BORROWER AT THE ADDRESS FOR BORROWER SET FORTH HEREIN 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. BORROWER (I) SHALL GIVE PROMPT NOTICE TO AGENT OF ANY CHANGE IN THE ADDRESS
FOR BORROWER SET FORTH HEREIN, (II) MAY AT ANY TIME AND FROM TIME TO TIME DESIGNATE AN AUTHORIZED AGENT WITH AN OFFICE IN
BROOKLYN, NEW YORK OR NEW YORK, NEW YORK (WHICH AGENT AND OFFICE SHALL BE DESIGNATED AS THE PERSON AND ADDRESS FOR SERVICE OF PROCESS),
AND (III) SHALL PROMPTLY DESIGNATE AN AUTHORIZED AGENT IF BORROWER CEASES TO HAVE AN OFFICE IN NEW YORK, NEW YORK. NOTHING
CONTAINED HEREIN SHALL AFFECT THE RIGHT OF AGENT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS
OR OTHERWISE PROCEED AGAINST BORROWER IN ANY OTHER JURISDICTION WHERE COLLATERAL IS LOCATED.


 


Section 10.5        Modification,
Waiver in Writing. No modification, amendment, extension, discharge, termination or waiver of any provision of
this Agreement 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 or parties 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. Neither any failure nor any delay on the part of Agent in insisting upon strict performance of
any term, condition, covenant or agreement, or exercising any right, power, remedy or privilege hereunder or under any other Loan
Document, 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 or any other Loan Document, Agent shall not be deemed to
have waived any right either to require prompt payment when due of all other amounts due under this Agreement or the other Loan
Documents, or to declare a default for failure to effect prompt payment of any such other amount. Agent shall have the right to
waive or reduce any time periods that Agent is entitled to under the Loan Documents in its sole and absolute discretion.


 


Section 10.6        Notices.
All notices, demands, requests, consents, approvals or other communications (any of the foregoing, a “Notice”)
required, permitted or desired to be given hereunder shall be in writing and shall be sent by facsimile (with answer back acknowledged)
or by registered or certified mail, postage prepaid, return receipt requested, or delivered by hand or by reputable overnight
courier, addressed to the party to be so notified at its address hereinafter set forth, or to such other address as such party
may hereafter specify in accordance with the provisions of this Section 10.6. Any Notice shall be deemed to have been
received: (a) three (3) days after the date such Notice is mailed, (b) on the date of sending by facsimile if sent
during business hours on a Business Day (otherwise on the next Business Day), (c) on the date of delivery by hand if delivered
during business hours on a Business Day (otherwise on the next Business Day), and (d) on the next Business Day if sent by
an overnight commercial courier, in each case addressed to the parties as follows:


 




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	If to Agent:	Deutsche Bank AG, New York Branch
	 	60 Wall Street
	 	New York, New York 10005
	 	Attention:  David Goodman and Nick Manolas
	 	Facsimile No.  (212) 797-4489
	 	 
	with a copy to:	Kaye Scholer LLP
	 	250 W. 55th Street
	 	New York, New York  10019-9710
	 	Attention:  Jeannie Bionda, Esq.
	 	Facsimile No. (212) 836-6534
	 	 
	If to Lender:	Deutsche Bank AG, New York Branch
	 	60 Wall Street
	 	New York, New York 10005
	 	Attention:  David Goodman and Nick Manolas
	 	Facsimile No.  (212) 797-4489
	 	 
	and to:	Deutsche Bank AG, New York Branch
	 	60 Wall Street, 10th Floor
	 	New York, New York  10005
	 	Attention:  General Counsel
	 	Facsimile No.  (646) 736-5721 
	 	 
	with a copy to:	Kaye Scholer LLP
	 	250 W. 55th Street
	 	New York, New York  10019-9710
	 	Attention:  Jeannie Bionda, Esq.
	 	Facsimile No. (212) 836-6534
	 	 
	with a copy to:	Hanover Street Capital
	 	48 Wall Street, 14th Floor
	 	New York NY 10005
	 	Attention:  Amy Sinensky 
	 	Facsimile No.: (212) 380-9396
	 	 
	If to Borrower:	c/o Clipper Equity LLC
	 	46-11 12th Avenue, Suite 1L
	 	Brooklyn, New York 11219
	 	Attention:  David Bistricer
	 	Facsimile No. (718) 438-1290
	 	 
	with a copy to:	Sukenik, Segal & Graff, P.C. 
	 	450 Seventh Avenue, 42nd Floor
	 	New York, New York 10123
	 	Attention: Josh Graff, Esq.
	 	Facsimile No. (212) 779-8095


 




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Any party may change the address to which
any such Notice is to be delivered by furnishing ten (10) days written notice of such change to the other parties in accordance
with the provisions of this Section 10.6. Notices shall be deemed to have been given on the date as set forth above,
even if there is an inability to actually deliver any such Notice because of a changed address of which no Notice was given, or
there is a rejection or refusal to accept any Notice offered for delivery. Notice for any party may be given by its respective
counsel. Additionally, Notice from Agent may also be given by Servicer and Agent hereby acknowledges and agrees that Borrower shall
be entitled to rely on any Notice given by Servicer as if it had been sent by Agent.


 


Section 10.7        Waiver
of Trial by Jury. BORROWER, AGENT AND EACH LENDER HEREBY AGREE 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 BORROWER, AGENT AND EACH LENDER AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE
AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. EACH PARTY IS HEREBY AUTHORIZED TO FILE A COPY
OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER.


 


Section 10.8        Headings,
Schedules and Exhibits. 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. The Schedules and Exhibits
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 10.9        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.
Agent 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. To the extent Borrower makes a payment or payments to Agent, 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 Agent.


 


Section 10.11     Waiver
of Notice. Borrower shall not be entitled to any notices of any nature whatsoever from Agent except with respect
to matters for which this Agreement or the other Loan Documents specifically and expressly provide for the giving of notice by
Agent 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 Agent 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 Agent to Borrower.


 




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Section 10.12     Remedies
of Borrower. In the event that a claim or adjudication is made that Agent or its agents have acted unreasonably
or unreasonably delayed acting in any case where, by law or under this Agreement or the other Loan Documents, Agent or such agent,
as the case may be, has an obligation to act reasonably or promptly, neither Agent nor its agents shall be liable for any monetary
damages and Borrower’s sole remedy shall be limited to commencing an action seeking injunctive relief or declaratory judgment.
Any action or proceeding to determine whether Agent has acted reasonably shall be determined by an action seeking declaratory
judgment.


 


Section 10.13     Offsets,
Counterclaims and Defenses. Any assignee of Agent’s or any Lender’s interest in and to this Agreement
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 one or more 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 10.14      No
Joint Venture or Partnership; No Third Party Beneficiaries.


 


(a)          Borrower
and Agent (on behalf of Lenders) 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, Agent and/or any Lender or to grant Agent and/or any Lender any interest in the Properties
other than that of mortgagee, beneficiary or lender.


 


(a)          The
Loan Documents are solely for the benefit of Agent (on behalf of Lenders) and Borrower (and the Lender Group, the Issuer and the
Underwriter Group with respect to Section 9.2(b)) and nothing contained in any Loan Document shall be deemed to confer upon
anyone other than the Agent, Lenders and Borrower any right to insist upon or to enforce the performance or observance of any of
the obligations contained therein.


 


Section 10.15      Publicity.
All news releases, publicity or advertising by either party through any media intended to reach the general public which refers
to the Loan Documents or the financing evidenced by the Loan Documents, to Agent, Lenders, the Affiliate of any Lender that acts
as the issuer with respect to a Securitization or any of their other Affiliates (x) shall be prohibited prior to the final Securitization
of the Loan and (y) after the final Securitization of the Loan, shall be subject to the prior written approval of the other party;
provided, however, that the foregoing shall not prohibit (a) Agent from issuing customary “tombstone” advertisements
with respect to the Loan, and (b) any customary disclosure by Agent or its Affiliates related to or arising out of a Securitization
or Secondary Market Transaction involving the Loan.


 




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Section 10.16     Waiver
of Marshalling of Assets. 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 Borrower, Borrower’s members or partners, as applicable, and others
with interests in Borrower, and of any Property, and shall not 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 Agent (on behalf of Lenders) under the Loan Documents to a sale of
any Property for the collection of the Obligations without any prior or different resort for collection, or of the right of Agent
(on behalf of Lenders) to the payment of the Obligations out of the net proceeds of any Property in preference to every other
claimant whatsoever.


 


Section 10.17    Certain
Waivers. Borrower hereby waives the right to assert a counterclaim, other than a compulsory counterclaim, in any
action or proceeding brought against it by Agent, any Lender or their agents or otherwise to offset any obligations to make the
payments required by the Loan Documents. No failure by Agent to perform any of its obligations hereunder shall be a valid defense
to, or result in any offset against, any payments which Borrower is obligated to make under any of the Loan Documents. Without
limiting any of the other provisions contained herein, Borrower hereby unconditionally and irrevocably waives, to the maximum
extent not prohibited by applicable law, any rights it may have to claim or recover against Agent or any Lender in any legal action
or proceeding any special, exemplary, punitive or consequential damages.


 


Section
10.18    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 Agent, any Lender or any parent, subsidiary or affiliate of Agent or any Lender. Agent
shall not 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 Agent 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 Agent’s exercise
of any such rights or remedies. Borrower acknowledges that Agent engages 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.


 


Section 10.19     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. Borrower shall indemnify,
defend and hold Agent and each Lender harmless from and against any and all claims, liabilities, costs and expenses of any kind
(including Agent’s and each Lender’s reasonable attorneys’ fees and expenses) in any way relating to or arising
out of a claim by any Person that such Person acted on behalf of Borrower, Agent or any Lender (unless it is determined that such
Person is alleged to be owed solely due to engagement by or through Agent or any Lender) in connection with the transactions contemplated
herein. The provisions of this Section 10.19 shall survive the expiration and termination of this Agreement and the
payment of the Obligations.


 




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Section 10.20     Prior
Agreements. This Agreement and the other Loan Documents contain the entire agreement of the parties hereto and thereto
and their respective affiliates in respect of the transactions contemplated hereby and thereby, and all prior agreements among
or between such parties, including any confidentiality agreements or any similar agreements between or among any such parties,
whether oral or written, are superseded by the terms of this Agreement and the other Loan Documents.


 


Section 10.21      Servicer.


 


(a)          At
the option of Agent, the Loan may be serviced by a servicer or special servicer (the “Servicer”) selected
by Agent and Agent may delegate all or any portion of its responsibilities under this Agreement and the other Loan Documents to
the Servicer pursuant to a servicing agreement (the “Servicing Agreement”) between Agent and Servicer.
Borrower shall not be responsible for any set-up fees or any other initial costs relating to or arising under the Servicing Agreement.
Borrower shall not be responsible for payment of any monthly or annual master servicing fee due to the Servicer under the Servicing
Agreement.


 


(b)          Other
than as set forth in Section 10.21(a) above, Borrower shall pay all of the fees and expenses of the Servicer and any reasonable
third-party fees and expenses in connection with the Loan, including any prepayments, releases of any Property, approvals under
the Loan Documents, requested by Borrower, other requests under the Loan, assumption of Borrower’s obligations or modification
of the Loan, as well as any fees and expenses in connection with the special servicing or work-out of the Loan or enforcement of
the Loan Documents, including special servicing fees, operating or trust advisor fees (if the Loan is a specially serviced loan
or in connection with a workout), work-out fees, liquidation fees, attorneys’ fees and expenses and other fees and expenses
in connection with the modification or restructuring of the Loan.


 


Section 10.22     Joint
and Several Liability. Borrower shall be jointly and severally liable for payment of the Debt and performance of all other
obligations of Borrower (or any of them) under this Agreement or any other Loan Document.


 


Section 10.23     Creation
of Security Interest. Notwithstanding any other provision set forth in this Agreement, the Note, the Mortgage or any of
the other Loan Documents, Agent may at any time create a security interest in all or any portion of its rights under this Agreement,
the Note, the Mortgage and any other Loan Document (including the advances owing to it) in favor of any Federal Reserve Bank in
accordance with Regulation A of the Board of Governors of the Federal Reserve System.


 




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Section 10.24     Taxes.
Any and all payments by Borrower hereunder and under the other Loan Documents shall be made free and clear of and without deduction
for any and all present or future taxes, levies, imposts, deductions, charges or withholdings, and all liabilities with respect
thereto, excluding taxes imposed on Agent’s or any Lender’s income, and franchise taxes imposed on Agent or any Lender
by the law or regulation of any Governmental Authority (all such non-excluded taxes, levies, imposts, deductions, charges, withholdings
and liabilities being hereinafter referred to in this Section 10.24 as “Applicable Taxes”).
If Borrower shall be required by law to deduct any Applicable Taxes from or in respect of any sum payable hereunder to Agent (on
behalf of Lender), the following shall apply: (i) the sum payable shall be increased as may be necessary so that after making
all required deductions (including deductions applicable to additional sums payable under this Section 10.24), such
Lender receives an amount equal to the sum it would have received had no such deductions been made, (ii) Borrower shall make
such deductions and (iii) Borrower shall pay the full amount deducted to the relevant taxation authority or other authority
in accordance with applicable law. Payments pursuant to this Section 10.24 shall be made within ten (10) days after
the date Agent makes written demand therefor.


 


Section 10.25     Counterparts.
This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be an original,
but all of which shall together constitute one and the same instrument.


 


Section 10.26     Set-Off.
In addition to any rights and remedies of Agent and Lenders provided by this Agreement and by law, Agent shall have the right
in its sole discretion, without prior notice to Borrower, any such notice being expressly waived by Borrower to the extent permitted
by applicable law, upon any amount becoming due and payable by Borrower hereunder (whether at the stated maturity, by acceleration
or otherwise), to set-off and appropriate and apply against such amount any and all deposits (general or special, time or demand,
provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct
or indirect, absolute or contingent, matured or unmatured, at any time held or owing by Agent, any Lender or any Affiliate thereof
to or for the credit or the account of Borrower; provided however, Agent may only exercise such right during the continuance of
an Event of Default. Agent agrees promptly to notify Borrower after any such set-off and application made by Agent; provided that
the failure to give such notice shall not affect the validity of such set-off and application.


 


Section 10.27      Modification,
Waiver in Writing; Approvals. 


 


(a)          Subject
to the additional requirements of Section 10.27(c) through (i), no modification, amendment, extension, discharge,
termination or waiver of any provision of this Agreement or of any other Loan Document shall be effective unless the same shall
be in a writing signed by Agent and, in the case of modifications and amendments, Borrower, and then such waiver or consent shall
be effective only in the specific instance, and for the purpose for which given. Neither any failure nor any delay on the part
of 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 any other Loan Document, 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
or any other Loan Document, neither Agent nor any Lender shall be deemed to have waived any right either to require prompt payment
when due of all other amounts due under this Agreement or the other Loan Documents, or to declare a default for failure to effect
prompt payment of any such other amount. Agent shall have the right to waive or reduce any time periods that Lenders and/or Agent
is entitled to under the Loan Documents in its sole and absolute discretion.


 




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(b)          Subject
to Section 10.27(c) through (i) hereof, Agent may make, give or take any consent, approval, waiver, amendment,
decision, or other action pursuant to the Loan Documents without the approval of any Lender. Notwithstanding the preceding sentence,
Agent shall have the right to (i) request instructions from Lenders with respect to any approval, consent, waiver, decision
or other action or (ii) in its sole and absolute discretion, rely upon such instructions (or refrain from taking any action
in the absence thereof) in performing its duties hereunder, and any action taken or failure to act pursuant thereto shall be binding
on all Lenders. With respect to any action or other matter arising in connection with an Event of Default, to the extent the Lenders
have consented to the exercise of rights and remedies by the Agent on their behalf or with the deemed consent or approval of the
Lenders, Agent shall be permitted to take any related action (or refrain from taking any action) to enforce and carry out such
rights and remedies of Agent and Lenders under the Loan Documents on account of such Event of Default. Notwithstanding anything
to the contrary contained herein, Agent may refrain from doing anything (including disclosing any information) which might, in
its good faith determination, constitute a breach of any law or expose Agent to any civil or criminal liability. Wherever this
Agreement specifies a minimum period of notice to be given to Agent, Agent may, in its discretion, accept a shorter notice period.


 


(c)          Borrower
hereby acknowledges and agrees that notwithstanding the fact that the Loan may be serviced by Servicer, prior to a Securitization
of the entire Loan, all requests for approval and consents hereunder and in every instance in which Lenders’ consent or approval
is required, all copies of documents, reports, requests and other delivery obligations of Borrower and Guarantor required hereunder
shall be delivered by Borrower or Guarantor, as applicable, to Agent.


 


(d)          In
the event a decision with respect to any action affecting the Loan (a “Decision”) is required to be made,
Agent shall promptly so notify each Lender (each such notice, a “Decision Notice”). The Decision Notice
shall (i) set forth Agent’s recommendation as to the proposed course of action or decision with respect to such Decision,
(ii) include all information in Agent’s possession that Agent reasonably believes is necessary for Lenders to make a
decision and (iii) ask for the approval of Lenders with respect to such course of action or decision and (iv) set forth
the specific date by which Lenders’ approval or disapproval of the action or decision recommended in the Decision Notice
must be given. In the event Agent does not receive from any Lender written approval or disapproval of the action or decision recommended
in the Decision Notice within ten (10) Business Days (or by such shorter period as may be requested by Borrower or Agent in accordance
with the Loan Documents or is otherwise required by the terms of the Loan Documents or by Agent if Agent in good faith reasonably
believes a more prompt response is necessary or appropriate and such shorter period is set forth in the Decision Notice, but which
shall in no event be fewer than three (3) Business Days from the date of delivery of the Decision Notice) of the date on which
Agent has delivered such Decision Notice to the Lenders, then Agent shall send such Lender a second reminder notice. Each second
reminder notice shall, at the top of such notice, set forth a legend in all caps and bolded text as follows: “THIS IS A REMINDER
NOTICE RELATING TO AN ACTION OR DECISION CONCERNING THE LOAN WITH RESPECT TO 53 PARK PLACE AND 110 CHURCH STREET IN NEW YORK, NEW
YORK, RECOMMENDED BY AGENT IN THAT CERTAIN NOTICE DATED AS OF [_______]. IF AGENT DOES NOT RECEIVE A WRITTEN APPROVAL OR DISAPPROVAL
FROM THE ADDRESSEE OF SUCH ACTION OR DECISION WITHIN TWO (2) BUSINESS DAYS AFTER THE DATE HEREOF, WHICH DATE IS [_______], SUCH
ADDRESSEE SHALL BE DEEMED TO HAVE APPROVED SUCH ACTION OR DECISION.” If Agent does not receive from any Lender written approval
or disapproval of the action or decision recommended in the original Decision Notice within two (2) Business Days after the second
reminder notice, such Lender shall be deemed to have approved the action or decision proposed therein.


 




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(e)          Agent
may, at any time, and must, if requested to do so by the Lenders, convene a meeting of Lenders.


 


(f)       
   The Lenders shall have the right to cause a vote to be taken with respect to any Decision. Upon the taking
of such vote and the obtaining of approval or disapproval of the Lenders, the Agent shall then be required to act, or not to
act, in accordance with such Lender approval or disapproval.


 


(g)          In
the event that the Lenders approve the commencement of a foreclosure or other exercise of remedies, Agent shall declare the outstanding
principal balance of the Loan, all interest thereon and all other amounts payable under the Loan Documents to be immediately due
and payable and shall promptly commence and complete such foreclosure or other exercise of remedies; provided that such action
is not stayed by any bankruptcy or insolvency proceeding or any other injunction or court order. If, after commencing such foreclosure,
Agent is directed to cease such action or to take another course of action by the Lenders under the terms of this Agreement, Agent
shall follow such direction. In the event that the Lenders have not approved the commencement of a foreclosure or other exercise
of remedies within the initial ninety (90) days following the occurrence of an Event of Default, then Agent shall be permitted,
without the consent of the Lenders to exercise any remedy available at law or equity including, without limitation, to (i) accelerate
the Loan, (ii) commence and diligently pursue a foreclosure proceeding and/or (iii) exercise such other remedies as are
appropriate.


 


(h)          No
modification of any provision of the Loan Documents, or consent to any departure by Borrower therefrom, shall modify any provision
of the Loan Documents relating to the Agent without the written consent of the Agent and Borrower.


 


(i)          Agent
shall have the right to provide, in a separate agreement between Agent and certain Lenders, that only the consent of a certain
percentage of Lenders shall be required with respect to certain Decisions.


 




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Section 10.28      Assignments
and Participations.


 


(a)          Subject
to Section 10.28(a)(ii) below, at the assignor Lender’s sole cost and provided that the economic and other
terms of the Loan shall remain the same for Borrower and Guarantor, with the prior consent of Agent, which consent not to be unreasonably
withheld, conditioned or delayed, any Lender may at any time assign and delegate to one or more Qualified Lenders (each an “Assignee”)
all or any part of such Lender’s rights and obligations under this Agreement (including all or a portion of its Ratable Share
of the Loan at the time owing to it) and the other Obligations held by such Lender hereunder; provided, however,
that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to
an Assignee until (i) written notice of such assignment, together with payment instructions, addresses and related information
with respect to the Assignee, shall have been given to Borrower and Agent by such Lender and the Assignee and such assignment shall
have been recorded in the Register in accordance with Section 10.28(a)(ii), (ii) such Lender and its Assignee
shall have delivered to Borrower and Agent an assignment and acceptance agreement in the form attached hereto as Schedule
X (or such other form as may be modified by Agent, an “Assignment and Acceptance”) with such
changes thereto as are reasonably acceptable to Agent with respect to such assignment, sale, negotiation, pledge, hypothecation
or other transfer and are in compliance with this Section 10.28, and (iii) the Assignee has paid to the Agent a processing
fee in the amount of Three Thousand Five Hundred and No/100 Dollars ($3,500.00). Notwithstanding the foregoing, no written consent
of Agent shall be required (i) in connection with any assignment and delegation by a Lender to an Affiliate of such Lender
or to another Lender or its Affiliate or (ii) in connection with any Securitization. During the continuance of an Event of
Default any Lender may assign and delegate to any Person, regardless of whether such Person is a Qualified Lender. Any assignment
and delegation pursuant to this Section 10.28(a)(i) shall be at Lender’s sole cost and shall not subject Borrower
or Guarantor to any cost or increased liability under the terms of the Loan Documents. For so long as Deutsche Bank AG, New York
Branch is a Lender under the Loan, DB, or an Affiliate thereof shall continue to act as Agent. Nothing contained in this Section 10.28(a)
shall be deemed to restrict a Lender’s right to sell a participation of up to 100% of its interest; provided, however,
that a participation of 100% of Deutsche Bank AG, New York Branch’s interest in the Loan shall not relieve DB or its Affiliates,
of its obligation to remain Agent hereunder.


 


(i)          From
and after the date that Agent notifies the assignor Lender and Borrower that it has received an executed Assignment and Acceptance
Agreement and payment of the above-referenced processing fee: (A) the Assignee thereunder shall be a party hereto and, to
the extent that rights and obligations hereunder and under the other Loan Documents have been assigned to it pursuant to such Assignment
and Acceptance Agreement, shall have the rights and obligations of a Lender under the Loan Documents, (B) the assignor Lender
shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it and assumed
by the Assignee pursuant to such Assignment and Acceptance Agreement, relinquish its rights and be released from its obligations
under the Loan Documents (but shall be entitled to indemnification as otherwise provided in this Agreement with respect to any
events occurring prior to the assignment) and (C) this Agreement shall be deemed to be amended to the extent, but only to
the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Ratable Share of each Lender
resulting therefrom.


 


(ii)         Borrower,
Agent and Lender shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the corresponding
Ratable Share of the Loan listed therein for all purposes hereof, and no assignment or transfer of any such Ratable Share of the
Loan shall be effective, in each case, unless and until receipt by Agent of a fully executed Assignment and Acceptance Agreement
effecting the assignment or transfer thereof, together with the required forms and certificates regarding tax matters and any fees
payable in connection with such assignment, in each case, as provided in Section 10.28(a). Each assignment shall be
recorded in the Register promptly following receipt by Agent of the fully executed Assignment and Acceptance Agreement and all
other necessary documents and approvals, prompt notice thereof shall be provided to Borrower and a copy of such Assignment and
Acceptance Agreement shall be maintained, as applicable. Any request, authority or consent of any Person who, at the time of making
such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding absent
manifest error on any subsequent holder, assignee or transferee of the corresponding portion of the Loan.


 




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(b)          Within
ten (10) Business Days after its receipt of an executed Assignment and Acceptance Agreement and notice by the Agent that it has
received payment of the processing fee (which notice shall also be sent by the Agent to each Lender), Borrower shall, if requested
by the Assignee, execute and deliver to Agent, new Notes (in substantially the same form and substance as the original notes) evidencing
such Assignee’s portion of the Loan, provided that the applicable original notes are returned to Borrower.


 


(c)          If
any assignee, participant or other transferee of the Loan or any portion thereof or interest therein requests in writing, at such
assignee’s, participants or other transferee’s sole cost, Borrower shall deliver to such Person updated opinions of
Borrower’s and Guarantor’s New York counsel with respect to the enforceability, due authorization and due execution
of any new Loan Documents entered into in connection with the related assignment, participation or transfer, which opinions shall
be in substantially the same form as the opinions delivered as of the Closing Date, and dated as of such date as the updated opinions
are delivered, as modified as required to properly render such updated opinions on such date and updated, and shall be addressed,
for purposes of reliance thereon, to such assignee, participant or transferee, as applicable.


 


(d)          Upon
assignment, all references to the assignor Lender in this Agreement and in any Loan Document shall be deemed to refer to such Assignee
or successor in interest and such Assignee or successor in interest shall thereafter stand in the place of such assignor Lender
in all respects. Notwithstanding anything to the contrary in the preceding sentence, Borrower agrees that each participant shall
be entitled to the benefits of Section 2.9 to the same extent as if it were Lender and had acquired its interest by
assignment; provided that such participant shall not be entitled to receive any greater payment under Section 2.9,
with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such
entitlement to receive a greater payment results from a change in law that occurs after the participant acquired the applicable
participation. Agent, acting solely for this purpose as an agent of Borrower, shall maintain at one of its offices in the United
States of America a copy of each assignment delivered to it and a register for the recordation of the names and addresses of Lenders
and each of Lenders’ assignees and the principal amount (and stated interest) on the Loan owing to Lenders and each of Lenders’
assignees pursuant to the terms hereof from time to time (the “Register”). The entries in the Register
shall be conclusive absent manifest error, and Borrower, Lender and Agent shall treat each Person whose name is recorded in the
Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement. The Register shall be available
for inspection by Borrower and Lenders, at any reasonable time and from time to time upon reasonable prior notice. If a Lender
sells a participation, such Lender shall, acting solely for this purpose as an agent of Borrower, maintain a register on which
it enters the name and address of each participant and the principal amount (and stated interest) of each participant’s interest
in the Loan or other obligations under the Loan Documents (the “Participant Register”); provided
that such Lender shall not have any obligation to disclose all or any portion of the Participant Register (including the identity
of any participant or any information relating to a participant’s interest in the Loan or its other obligations under any
Loan Document) to any Person except to the extent that such disclosure is necessary to establish that the Loan or other obligation
is in registered form under Section 5f.103-1(c) of the U.S. Department of Treasury regulations. The entries in the Participant
Register shall be conclusive absent manifest error, and Lenders shall treat each Person whose name is recorded in the Participant
Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.


 




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(e)          Borrower
acknowledges and agrees that Agent and each Lender may provide to any actual or proposed Assignee originals or copies of this Agreement,
any other Loan Documents and any other documents, instruments, certificates, opinions, insurance policies, financial statements
and other information, letters of credit, reports, requisitions and other materials and information at any time submitted by or
on behalf of Borrower, Guarantor or other Persons and/or received by Agent or any Lender in connection with the Loan, provided
that with respect to materials from Guarantor not otherwise required to be delivered by Guarantor under the Guaranty, any such
proposed Assignee agrees to keep all such materials and information confidential.


 


Section 10.29      Acknowledgement
and Consent to Bail-In of EEA Financial Institutions.


 


(a)          Notwithstanding
anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among the respective parties
thereto, each party hereto acknowledges that any liability of any EEA 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 an EEA 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 an EEA Resolution Authority to any such liabilities arising hereunder which
may be payable to it by any party hereto that is an EEA 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 EEA 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 any EEA Resolution
Authority.


 




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(b)          As
used in this Section 10.27 the following terms have the following meanings ascribed thereto: (i) “Bail-In Action”
means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability
of an EEA Financial Institution; (ii)“Bail-In Legislation” means, 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 for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule; (iii) “EEA
Financial Institution” means (x) any credit institution or investment firm established in any EEA Member Country
which is subject to the supervision of an EEA Resolution Authority; (y) any entity established in an EEA Member Country which is
a parent of an institution described in clause (x) of this definition, or (x) any financial institution established in an EEA Member
Country which is a subsidiary of an institution described in clauses (x) or (y) of this definition and is subject to consolidated
supervision with its parent; (iv) “EEA Member Country” means any of the member states of the European
Union, Iceland, Liechtenstein, and Norway or any other member state of the European Economic Area; (v) “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; (vi)
“EU 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; and (vii) “Write-Down and Conversion Powers”
means, 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 EU Bail-In Legislation Schedule.


 


Article
11


 


AGENT


 


Section 11.1        Appointment
and Authorization.


 


(a)          Each
Lender hereby irrevocably designates and appoints Agent as the administrative agent of such Lender under this Agreement and the
other Loan Documents, and each such Lender irrevocably authorizes Agent, as the administrative agent for such Lender, to take such
action on its behalf and in Agent’s designated capacity under the provisions of this Agreement and the other Loan Documents
and to exercise such powers and perform such duties as are expressly delegated to Agent by the terms of this Agreement and the
other Loan Documents, together with such other powers as are reasonably incidental thereto and Borrower shall be entitled to rely
on any decision, action or notice given to or by Agent and Agent’s sole decision-making authority with respect to all matters
related to “Lender” with respect to the Loan Documents without any further notice to or consent from any other Lender.
Notwithstanding any provision to the contrary elsewhere in this Agreement and the other Loan Documents, Agent shall not have any
duties or responsibilities, except those expressly set forth herein or therein, or any fiduciary relationship with any Lender,
and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or
any other Loan Document or otherwise exist against Agent.


 




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(b)          Subject
to Section 10.28, no individual Lender or group of Lenders shall have any right to modify or waive, or consent to the
departure of any party from any provision of any Loan Document, or secure or enforce the Obligations. All such rights, on behalf
of Agent or any Lender or Lenders, shall be held and exercised solely by and at the option of Agent for the Ratable benefit of
Lenders. Except as expressly otherwise provided in this Agreement or the other Loan Documents, Agent shall have and may use its
sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from
taking any actions on behalf of Lenders which Agent is expressly entitled to exercise or take under this Agreement or the other
Loan Documents, including (i) the determination if and to what extent matters or items subject to Agent’s satisfaction
are acceptable or otherwise within its discretion, (ii) the making of Administrative Agent Advances, and (iii) the exercise
of remedies under this Agreement or any other Loan Document, and any action so taken or not taken shall be deemed consented to
by Lenders.


 


(c)          In
case of the pendency of any bankruptcy, receivership, insolvency, liquidation, reorganization, arrangement, adjustment, composition
or other judicial proceeding relative to Borrower, no individual Lender or group of Lenders shall have the right, and Agent (irrespective
of whether the principal of the Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective
of whether Agent shall have made any demand on Borrower) shall to the extent given such rights under the Loan Documents, be exclusively
entitled and empowered on behalf of itself and Lenders, by intervention in such proceeding or otherwise:


 


(i)          to
file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loan and all other
Obligations that are then owing and unpaid and to file such other documents as may be necessary or advisable in order to have the
claims of Lenders and Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of Lender
and Agent and their respective counsel and all other amounts, in each case, due Lender and Agent hereunder allowed in such judicial
proceeding;


 


(ii)         to
collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same pursuant
to the Loan Documents; and


 


(iii)        any
custodian, receiver, assignee, trustee, liquidator, conservator, sequestrator or other similar official in any such judicial proceeding
is hereby authorized by each Lender to make such payments to Agent and, in the event that Agent shall consent to the making of
such payments directly to Lender, to pay to Agent any amount due for the reasonable compensation, expenses, disbursements and advances
of Agent and its counsel, and any other amounts, in each case, due Agent hereunder. Nothing contained herein shall be deemed to
authorize Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement,
adjustment or composition affecting the Obligations or the rights of Lender except as approved by the Lenders or to authorize Agent
to vote in respect of the claims of Lenders except as approved by the Lenders in any such proceeding.


 


Section 11.2       Delegation
of Duties. Agent may execute any of its duties under this Agreement and the other Loan Documents by or through agents
or attorneys in fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. Agent shall
not be responsible for the negligence or misconduct of any agents or attorneys-in fact selected by it with reasonable care.


 




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Section 11.3       Exculpatory
Provisions. Neither Agent nor any of its officers, directors, employees, agents, attorneys in fact or affiliates shall
be (i) liable to any Lender or Borrower or Guarantor for any action lawfully taken or omitted to be taken by it or such Person
or Persons under or in connection with this Agreement or any other Loan Document (except to the extent that any of the foregoing
are found by a final and nonappealable decision of a court of competent jurisdiction to have resulted from its or such Person
or Persons’ own gross negligence or willful misconduct) or (ii) responsible in any manner to any Lender for any recitals,
statements, representations or warranties made by Borrower or Guarantor or any officer thereof contained in any Loan Document
or in any certificate, report, statement or other document referred to or provided for in, or received by Agent under or in connection
with, this Agreement or any other Loan Document or for the value, validity, effectiveness, genuineness, enforceability or sufficiency
of this Agreement or any other Loan Document or for any failure of Borrower or Guarantor to perform its obligations thereunder.
Agent shall not be under any obligation to any Lender to ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of, this Agreement or any other Loan Document, or to inspect the properties, books
or records of Borrower.


 


Section 11.4        Reliance
by Agent. Agent shall be entitled to rely, and shall be fully protected in relying, upon any instrument, writing, resolution,
notice, consent, certificate, affidavit, letter, telecopy, telex or teletype message, statement, order or other document or conversation
believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons and upon advice
and statements of legal counsel (including, without limitation, counsel to Borrower and/or Guarantor), independent accountants
and other experts selected by Agent. Agent may deem and treat the payee of any Note as the owner thereof for all purposes unless
such Note shall have been transferred in accordance with this Agreement and all actions required in connection with such transfer
shall have been taken. Agent shall be fully justified in failing or refusing to take any action under this Agreement or any other
Loan Document unless it shall first receive such advice or concurrence of one hundred percent (100%) of Lenders (or any other
instructing group of Lenders specified by this Agreement or by a separate agreement between Agent and any Lenders) as it deems
appropriate or it shall first be indemnified to its satisfaction by Lenders against any and all liability and expense that may
be incurred by it by reason of taking or continuing to take any such action. Agent shall in all cases be fully protected in acting,
or in refraining from acting, under this Agreement and the other Loan Documents in accordance with a request of one hundred percent
(100%) of Lenders (or any other instructing group of Lenders specified by this Agreement or by a separate agreement between Agent
and any Lenders), and such request and any action taken or failure to act pursuant thereto shall be binding upon all Lenders and
all future holders of all or any interest in the Loan.


 


Section 11.5        Notice
of Default. Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default
under the Loan Documents unless Agent shall have received notice from a Lender or Borrower, describing such Default or Event of
Default and stating that such notice is a “notice of default”. In the event that Agent shall receive such a notice,
Agent shall promptly give notice thereof to Lenders. Agent shall take such action with respect to such Default or Event of Default
as shall be reasonably directed by the Lenders (or any other instructing group of Lenders specified by this Agreement or by a
separate agreement between Agent and any Lenders); provided that unless and until Agent shall have received such directions, Agent
may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event
of Default as it shall deem advisable in the best interests of Lenders.


 




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Section 11.6       Non-Reliance
on Agent and Other Lenders. Each Lender expressly acknowledges that neither Agent nor any of its respective officers,
directors, employees, agents, attorneys in fact or affiliates have made any representations or warranties to it and that no act
by Agent hereafter taken, including any review of the affairs of Borrower or any affiliate of Borrower, shall be deemed to constitute
any representation or warranty by Agent to Lender. Each Lender represents to Agent that it has, independently and without reliance
upon Agent or any other Lender, and based on such documents and information as it has deemed appropriate, made its own appraisal
of any investigation into the business, operations, property, financial and other condition and creditworthiness of Borrower and
its Affiliates and made its own decision to make its Ratable Share of the Loan hereunder and enter into this Agreement. Each Lender
also represents that it will, independently and without reliance upon Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking
or not taking action under this Agreement and the other Loan Documents, and to make such investigation as it deems necessary to
inform itself as to the business, operations, property, financial and other condition and creditworthiness of Borrower and its
Affiliates. Except for notices, reports and other documents expressly required to be furnished to the Lender by Agent hereunder,
Agent shall not have any duty or responsibility to provide Lender with any credit or other information concerning the business,
operations, property, condition (financial or otherwise), prospects or creditworthiness of Borrower or any Affiliate of Borrower
that may come into the possession of Agent or any of its officers, directors, employees, agents, attorneys-in-fact or affiliates.


 


Section 11.7       Indemnification.
Lenders agree to indemnify Agent in its capacity as such (to the extent not reimbursed by Borrower and without limiting any obligation
of Borrower to do so pursuant to the Loan Documents), ratably according to their respective Ratable Share on the date on which
indemnification is sought under this Section (or, if indemnification is sought after the date upon which the Loan shall have been
paid in full, ratably in accordance with such Ratable Share immediately prior to such date), for, and to save Agent harmless from
and against, any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind whatsoever that may at any time (including, without limitation, at any time following the payment of the Loan) be
imposed on, incurred by or asserted against Agent in any way relating to or arising out of, the Loan, this Agreement, any of the
other Loan Documents or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby
or thereby or any action taken or omitted by Agent under or in connection with any of the foregoing; provided that no Lender shall
be liable for the payment of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements that are found by a final and nonappealable decision of a court of competent jurisdiction to
have resulted from Agent’s gross negligence or willful misconduct. The agreements in this Section shall survive the payment
of the Debt and the termination of this Agreement.


 


Section 11.8        Agent
in its Individual Capacity. Agent and its Affiliates may make loans to, accept deposits from and generally engage in any
kind of business with Borrower or any Affiliate of Borrower as though Agent were not administrative agent hereunder. With respect
to the Ratable Share of the Loan made or held by it at any time, Agent shall have the same rights and powers under this Agreement
and the other Loan Documents as any Lender and may exercise the same as though it were not the Agent, and the terms “Lender”
and “Lenders” shall include Agent in its individual capacity.


 




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Section 11.9       Successor
Agent. Agent may resign as administrative agent under this Agreement and the other Loan Documents upon thirty (30) days’
notice to Lenders and Borrower; provided, that for so long as Deutsche Bank AG, New York Branch is a Lender hereunder, DB, or
an Affiliate thereof, shall be the Agent hereunder. The Lenders (which for the purposes thereof, shall not include the pro rata
interest of the Lender then serving as Agent) may, upon reasonable written notice to Agent and Borrower, elect to remove Agent
if it is determined in a final, non-appealable judgment by a court of competent jurisdiction that Agent has engaged in gross negligence
or willful misconduct. If Agent shall resign as administrative agent under this Agreement and the other Loan Documents or if the
Lenders shall elect to remove Agent for cause as aforesaid, then, subject to the following sentence, the Lenders shall appoint
from among the Lenders (or an Affiliate of any Lender) a successor Agent (with the consent of such successor Agent and notice
to Borrower) for Lender, whereupon such successor Agent shall succeed to the rights, powers and duties of Agent, and the term
“Agent” shall mean such successor Agent effective upon such appointment, consent and notice, and Agent’s rights,
powers and duties as Agent shall be terminated, without any other or further act or deed on the part of such former Agent or any
of the parties to this Agreement or any holders of the Loan. If no successor Agent has accepted appointment as administrative
agent by the date that is thirty (30) days following a retiring Agent’s notice of resignation, the retiring Agent’s
resignation shall nevertheless thereupon become effective, and the Lenders shall assume and perform all of the duties of Agent
hereunder until such time, if any, as the Lenders, appoint a successor Agent as provided for above. After any retiring Agent’s
resignation hereunder as Agent or removal for cause as aforesaid upon the election of the Lenders, the provisions of the Loan
Documents shall continue to inure to its benefit as to any actions taken or omitted to be taken by it while it was Agent under
the Loan Documents.


 


Section 11.10      Administrative
Agent Advances.


 


(a)          Agent is authorized, from time to time, in Agent’s sole discretion to expend funds to the extent permitted by the Loan Documents,
on behalf of Lender (“Administrative Agent Advances”), when Agent deems necessary or desirable to preserve
or protect the Properties or any portion thereof (including those with respect to property taxes, insurance premiums, and other
costs, fees and expenses with respect to operation, leasing, management, improvements, maintenance, repair, sale and disposition)
(A) subject to Section 8.2, during the continuance of an Event of Default, and (B)  after acquisition of all or
a portion of any Property by foreclosure or other exercise of remedies hereunder.


 


(b)         Administrative
Agent Advances shall constitute obligatory advances of Lender under this Agreement, shall be repayable by Lenders on demand and
shall be Obligations that are secured by the Properties, and if unpaid by Lenders, as set forth below, shall bear interest at the
rate applicable to such amount under the Loan. Agent shall notify each Lender in writing of each Administrative Agent Advance.
Upon receipt of notice from Agent of its making of an Administrative Agent Advance, each Lender shall make the amount of such Lender’s
Ratable Share of the outstanding principal amount of the Administrative Agent Advance available to Agent, in same day funds in
lawful money of the United States of America, to such account of Agent as Agent may designate on the first Business Day after Agent
provides Lender with notice of the making of such Administrative Agent Advance.


 




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Section 11.11    Ratable
Share. (i) The liabilities of Lenders shall be several and not joint, (ii) no Lender shall be responsible for
the obligations of any other Lender, and (iii) each Lender shall be liable to Borrower only for its respective Ratable Share
of the Loan. Notwithstanding anything to the contrary herein, all indemnities by Borrower and obligations for costs, expenses,
damages or advances set forth herein shall run to and benefit each Lender in accordance with its Ratable Share.


 


Section 11.12    Letters
of Credit. Each Lender agrees that, prior to the Securitization of the entire Loan, (i) any Letter of Credit delivered
to Lenders in accordance with the terms of this Agreement shall name DB as the sole beneficiary thereunder for the benefit of
the Lenders, and (ii) each authorizes DB to, and DB hereby agrees to, act as its agent with regard to the servicing and administration
of all such Letters of Credit, and in the event DB draws upon any such Letter of Credit, each Lender authorizes DB to, and DB
hereby agrees to, deposit the proceeds into the Cash Management Account (or into one or more of the Accounts) in the manner set
forth herein.  Upon the Securitization of the entire Loan, each Lender authorizes DB to, and DB hereby agrees to, assign
to the Trustee all of DB’s and Lenders’ right, title and interest in and to each Letter of Credit issued in accordance
with the terms of this Agreement that is then in DB’s and Lenders’ possession, whereupon without any further action
by any of the Lenders, DB shall be released from any and all liability relating in any way to such Letter(s) of Credit.


 


Section 11.13    Modifications
to Article 11. Borrower, Agent and Lenders acknowledge and agree that the provisions of this Article 11 solely govern
the relationship among the Lenders and Agent and do not alter or otherwise modify the provisions of this Agreement applicable
to Borrower or otherwise apply to Borrower. The provisions of this Article 11 may be modified without Borrower’s consent
so long as such modifications do not alter any of Borrower’ rights or obligations under this Agreement or any of the other
Loan Documents or otherwise alter the economic terms of the Loan or the Loan Documents in any manner (provided, however
that Borrower shall be given notice of any such modification).


 


[No
Further Text On This Page]


 




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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.


 


	 	AGENT:
	 	 
	 	DEUTSCHE BANK AG, NEW YORK BRANCH, a branch of Deutsche Bank AG, a German Bank, individually and as Agent for one or more Lenders
	 	 	 
	 	By:	/s/ David Goodman
	 	 	Name: David Goodman
	 	 	Title: Director 
	 	 	 
	 	By:	/s/  Lisa Paterson 
	 	 	Name: Lisa Paterson 
	 	 	Title: Director 
	 	 
	 	LENDERS:
	 	 
	 	DEUTSCHE BANK AG, NEW YORK BRANCH, a branch of Deutsche Bank AG, a German Bank
	 	 	 
	 	By:	/s/  David Goodman
	 	 	Name:  David Goodman
	 	 	Title: Director
	 	 	 
	 	By:	 /s/ Lisa Paterson 
	 	 	Name:  Lisa Paterson 
	 	 	Title: Director


 


[signatures continue on following page]


 




     


     


    

  


	 	BORROWER:
	 	 
	 	50 MURRAY STREET ACQUISITION LLC,
	 	a Delaware limited liability company
	 	 	 
	 	By:	/s/ David Bistricer
	 	 	Name:	David Bistricer
	 	 	Title:	Authorized Signatory