Exhibit 10.312


 





CONSTRUCTION LOAN AND SECURITY AGREEMENT



 


AMONG


 


CB OWNER, LLC, a Delaware limited
liability company, as Borrower


 


AND


 


THE FINANCIAL INSTITUTIONS PARTY HERETO


AND THEIR ASSIGNEES,


as Lenders


 


AND


 


THE PRIVATEBANK AND TRUST COMPANY,


an Illinois state chartered bank,


as Administrative Agent on behalf of Lenders


 


 


 




     


     

    

 


Table
of Contents


 


	 	 	Page
	 	 	 
	SECTION 1.  RECITALS	1
	 	 
	SECTION 2.  DEFINITIONS	1
	 	 
	SECTION 3.  LOAN TERMS	18
	 	 	 
	3.1.	Commitments, Loans and Notes	18
	3.2.	Interest Rates, Late Charges	20
	3.3.	Payments	22
	3.4.	Prepayments	22
	3.5.	Extension of Maturity Date	23
	3.6.	Payments, Fees and Other General Provisions	26
	3.7.	Defaulting Lenders	29
	3.8.	Taxes	30
	3.9.	Yield Protection, etc	32
	 	 	 
	SECTION 4.  CONDITIONS TO LOAN OPENING DATE	35
	 	 	 
	4.1.	The Loan Documents	36
	4.2.	Survey	36
	4.3.	Insurance	36
	4.4.	Title Policy	36
	4.5.	Title Documents	37
	4.6.	Recorded Documents	37
	4.7.	Searches	37
	4.8.	Opinions	37
	4.9.	Geotechnical Reports	38
	4.10.	Flood Hazards	38
	4.11.	Organizational Documents	38
	4.12.	Environmental Report	38
	4.13.	No Material Adverse Occurrences	38
	4.14.	Appraisal	38
	4.15.	Leases	39
	4.16.	Budget	39
	4.17.	Guarantor Financial Statements	39
	4.18.	Required Equity	39
	4.19.	Rate Management Agreement	39
	4.20.	Commitment	39
	4.21.	Construction Schedule	39
	4.22.	Intentionally deleted	39
	4.23.	Material Subcontracts	39
	4.24.	Utilities	39
	4.25.	Property Management Contract	39
	4.26.	Intentionally Omitted	39
	4.27.	Plans and Specifications	39
	4.28.	Site Plan	39
	4.29.	Development Agreement	40
	4.30.	Bonding	40
	4.31.	Consents	40



 






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	4.32.	Contracts	40
	4.33.	Subcontracts	40
	 	 	 
	SECTION 5.  DISBURSEMENT OF THE LOAN	40
	 	 	 
	5.1.	Conditions Precedent in General	40
	5.2.	Amount of Disbursements; Retainage	42
	5.3.	Certifications, Representations and Warranties	42
	5.4.	Costs	43
	5.5.	Release of Retainage	43
	5.6.	Interest Reserve	45
	 	 	 
	SECTION 6.  REPRESENTATIONS AND WARRANTIES	45
	 	 	 
	6.1.	Organization of Parties	46
	6.2.	Title	46
	6.3.	Improvements	46
	6.4.	Validity and Enforceability of Documents	46
	6.5.	Litigation and Liens	46
	6.6.	Utilities; Authorities	47
	6.7.	Solvency	47
	6.8.	Financial Statements	47
	6.9.	Compliance with Laws	47
	6.10.	Event of Default	48
	6.11.	Leases	48
	6.12.	Construction, Architectural and Engineering Contracts and Subcontracts, etc	48
	6.13.	Budget	48
	6.14.	No Defects	48
	6.15.	Additional Agreements	49
	 	 	 
	SECTION 7.  BORROWER’S COVENANTS; SECURITY INTERESTS	49
	 	 	 
	7.1.	Compliance with Laws	49
	7.2.	Inspection	49
	7.3.	Appraisal	50
	7.4.	Liens	50
	7.5.	Concerning the Premises	51
	7.6.	Financial Statements; Reports	51
	7.7.	Affirmation of Representations and Warranties	52
	7.8.	Taxes and Assessments	52
	7.9.	Proceedings Affecting Property	53
	7.10.	Disposal and Encumbrance of Property	53
	7.11.	Insurance	53
	7.12.	Performance of Obligations; Notice of Default	54
	7.13.	Restrictions Affecting Obligors	54
	7.14.	Use of Receipts Bank; Accounts; Limitation on Distributions	54
	7.15.	Additional Documents	55
	7.16.	Ineligible Securities	55
	7.17.	OFAC	55
	7.18.	Loan Expenses	56




    ii 


     

    

 


	7.19.	Management	56
	7.20.	Single Asset Entity	56
	7.21.	No Debt	57
	7.22.	Use of Loan Advances	57
	7.23.	Financial Covenants	57
	7.24.	Approved Leases	58
	7.25.	Manner of Construction	58
	7.26.	Certificate of Completion	58
	7.27.	Change Orders	59
	7.28.	Material Subcontracts	59
	7.29.	Budget	59
	7.30.	Loan In Balance	60
	7.31.	Development Fee	60
	7.32.	Collateral Assignment of Plans, Permits and Contracts	60
	7.33.	Take-Out Commitments	60
	7.34.	Transfer of Ownership Interests	60
	 	 	 
	SECTION 8.  EVENTS OF DEFAULT	60
	 	 
	SECTION 9.  REMEDIES	64
	 	 
	SECTION 10.  ADMINISTRATIVE AGENT	65
	 	 
	10.1.	Authorization and Action	65
	10.2.	Administrative Agent’s Reliance, Etc	66
	10.3.	Notice of Defaults	66
	10.4.	Administrative Agent as Lender	67
	10.5.	Approvals of Lenders	67
	10.6.	Lender Credit Decision, Etc	68
	10.7.	Indemnification of Administrative Agent by Lenders	68
	10.8.	Successor Administrative Agent	69
	10.9.	Other Loans by Lenders to Borrower	69
	10.10.	Request for Administrative Agent Action	70
	10.11.	Assignments/Participations	70
	10.12.	Approval by Lenders	72
	10.13.	Post Foreclosure Plans	74
	 	 	 
	SECTION 11.  MISCELLANEOUS	75
	 	 	 
	11.1.	Additional Indebtedness	75
	11.2.	Additional Acts	75
	11.3.	Loan Agreement Governs	75
	11.4.	Amendment; Waiver; Approval	76
	11.5.	Notice	76
	11.6.	Successors and Assigns of Borrower	77
	11.7.	Confidentiality	77
	11.8.	Governing Law	78
	11.9.	Indemnity by Borrower	78
	11.10.	Administrative Agent’s Representatives	79
	11.11.	Rules of Construction	79



 






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	11.12.	Headings	79
	11.13.	No Partnership or Joint Venture	79
	11.14.	Time is of the Essence	79
	11.15.	Invalid Provisions	80
	11.16.	Acts by Lenders	80
	11.17.	Offset	80
	11.18.	Binding Provisions	80
	11.19.	Counterparts	80
	11.20.	No Third Party Beneficiary	80
	11.21.	Publicity	80
	11.22.	JURISDICTION AND VENUE	81
	11.23.	JURY WAIVER	81
	11.24.	Additional Provisions	81


 


	Exhibits	 	 
	Exhibit A	-	Legal Description
	Exhibit B	-	Form of Note
	Exhibit C	-	Permitted Exceptions
	Exhibit D	-	Budget
	Exhibit E	-	Form of Assignment and Acceptance
	Exhibit F	-	Form of Disbursement Request
	Exhibit G	-	Required Insurance
	Exhibit H	-	Compliance Certificate Form for Borrower
	Exhibit I	-	Additional Provisions



 



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CONSTRUCTION LOAN AGREEMENT


 


This Construction
Loan Agreement (this “Agreement”) is dated as of December 16, 2015, by and among CB OWNER, LLC,
a Delaware limited liability company (“Borrower”), each of the financial institutions identified on Schedule 1
hereto and their successors and assigns (collectively, the “Lenders” and individually, a “Lender”)
and THE PRIVATEBANK AND TRUST COMPANY, an Illinois state chartered bank, and its successors and assigns (in such capacity
“Administrative Agent”), as administrative agent for the Lenders in accordance with the terms of Section
10 hereof.


 


SECTION
1.

RECITALS


 


1.1           Borrower
is, or on the Loan Opening Date will be, the fee owner of the Land (these and all other capitalized terms used in this Section
1 and not otherwise defined shall have the meanings ascribed thereto in Section 2 below).


 


1.2           Borrower
has requested that the Lenders make a construction loan to Borrower in the aggregate, maximum principal amount of THIRTY EIGHT
MILLION ONE HUNDRED THIRTY THOUSAND AND NO/100 DOLLARS ($38,130,000.00) to pay a portion of the amounts needed to finance the Project
Costs associated with the Project. The Lenders have agreed to make the Loans subject to the terms and conditions set forth herein.


 


1.3           In
consideration of the mutual agreements set forth herein and for other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, Borrower, the Lenders, and Administrative Agent agree as follows:


 


SECTION
2.

DEFINITIONS


 


As used in this Agreement, the following
terms shall have the following meanings:


 


“Additional
Costs” has the meaning ascribed to such term in Section 3.9(a)(i) of this Agreement.


 


“Adjusted
LIBOR Rate” shall mean, for any Interest Period for any LIBOR Rate Loan, a rate per annum equal to two and one-half percent
(2.50%) plus the LIBOR Rate for such Interest Period.


 


“Affected
Lender” has the meaning ascribed to such term in Section 3.9(e) of this Agreement.


 


“Affiliate”
shall mean any Person directly or indirectly controlling or controlled by, or under direct or indirect common control with, another
Person. A Person shall be deemed to control another Person for the purposes of this definition if such first Person possesses,
directly or indirectly, the power to direct, or cause the direction of, the management and policies of the second Person, whether
through the ownership of voting securities, common directors, trustees or officers, by contract or otherwise.


 




     


     

    

  


“Applicable
Laws” shall mean all laws, statutes, ordinances, rules, regulations, judgments, decrees or orders of any state, federal
or local government or agency which are applicable to the Obligors and/or the Project.


 


“Approved
Manager” shall mean the Property Manager or any other reputable and creditworthy property manager, subject to the prior
approval of Administrative Agent (not to be unreasonably withheld), with a portfolio of properties comparable to the Property under
active management.


 


“Architect”
shall mean Poole and Poole Architecture, who has performed or shall perform architectural services with respect to the construction
of the Improvements.


 


“Architect’s
Consent” shall mean that certain Architect’s Consent, Certificate and Agreement made by Architect in favor of Administrative
Agent for the benefit of the Lenders.


 


“Architectural
Contract” shall mean that certain contract dated April 22, 2015 between Borrower and the Architect regarding the architectural
services performed or to be performed by the Architect in connection with the construction of the Improvements, which is in form
and substance reasonably acceptable to Administrative Agent.


 


“Assignee” has the meaning
assigned to such term in Section 10.11(c) of this Agreement.


 


“Assignment
and Acceptance Agreement” shall mean an Assignment and Acceptance Agreement among a Lender, an Assignee and Administrative
Agent, substantially in the form set forth as Exhibit E.


 


“Assignment
of Leases and Rents” shall mean that certain Assignment of Leases, Rents and Profits dated as of even date herewith from
Borrower to Administrative Agent for the benefit of the Lenders, as the same may be amended, restated, modified or supplemented
and in effect from time to time.


 


“Assignment
of Management Agreement” shall mean that certain Assignment of Management Agreement to be executed post-closing by Borrower
to Administrative Agent for the benefit of the Lenders, and consented to by the Property Manager, as the same may be amended, restated,
modified or supplemented and in effect from time to time.


 


“Available
Proceeds” shall mean the sum of (A) the undisbursed proceeds from the Loans (net of any unpaid accrued interest on the
Loans) allocated to each line item in the Budget (including any reserve specifically set aside for such line item) plus (B) the
aggregate amount of all amounts deposited by Borrower pursuant to Section 3.4(c), plus (C) upon the completion of construction
of the Project, any rental payment, inclusive of any additional rent, late fees and accrued late payment interest and any other
sums received by and for the benefit of Borrower in relation or pursuant to any Lease or other agreement affecting the Project.


 




    2 


     

    

  


“Bankruptcy
Proceeding” has the meaning ascribed to such term in Section 8(f)(i) of this Agreement.


 


“Base Rate”
shall mean the Prime Rate.


 


“Base Rate
Loan” shall mean any portion of the outstanding principal amount of the Loans that is bearing interest at the Base Rate.


 


“BSA”
has the meaning ascribed to such term in Section 7.17 of this Agreement.


 


“Budget”
shall mean the detailed budget of all costs to be incurred in connection with the Work, including both hard costs and soft costs,
as set forth on Exhibit D attached hereto and made a part hereof, as the same may be amended, restated or modified or supplemented
from time to time, as provided herein.


 


“Business
Day” shall mean a day of the week (but not a Saturday, Sunday or holiday) on which the Chicago, Illinois offices of Administrative
Agent are open to the public for carrying on substantially all of Administrative Agent’s business functions, provided, however,
that when used in the definition of Interest Period or Interest Rate Determination Date, or when otherwise used in connection with
a rate determination, borrowing or payment in respect of a LIBOR Rate Loan, the term “Business Day” shall also exclude
any day on which banks in London, England are not open for dealings in deposits of Dollars in the London interbank market. Unless
specifically referenced in this Agreement as a Business Day, all references to “days” shall be to calendar days.


 


“Calculation
Period” shall mean, for purposes of the Debt Service Coverage Ratio, the three (3) month period immediately prior to
the relevant Determination Date; provided, for purposes of the calculation of all Operating Expenses other than real estate taxes
and insurance premiums (which shall be calculated for the period following the Determination Date on an annualized basis off of
the most recently received tax statement and insurance premium invoice, respectively), the Calculation Period shall mean the twelve
(12) month period immediately prior to the relevant Determination Date.


 


“Collateral”
shall mean all of the property (including all personal, real, tangible and intangible property) in which the Loan Documents grant
Administrative Agent, for the benefit of Lenders, a security interest.


 


“Commitment”
shall mean, as to each Lender, such Lender’s obligation to make Loans pursuant to Section 3.1 in the amount set forth
for such Lender on Schedule 1 attached hereto as such Lender’s Commitment or as set forth in the applicable Assignment
and Acceptance Agreement, or as appropriate to reflect any assignments to or by such Lender effected in accordance with Section
10.11.


 


“Commitment
Percentage” shall mean, as to each Lender, the ratio, expressed as a percentage, of (a) the amount of such Lender’s
Commitment to (b) the aggregate amount of the Commitments of all Lenders hereunder; provided, however, that if at the time of determination
the Commitments have terminated or been reduced to zero (0), the “Commitment Percentage” of each Lender shall be the
Commitment Percentage of such Lender in effect immediately prior to such termination or reduction.


 




    3 


     

    

  


“Complete,”
“Completion” or similar phrases, when referring to the Project, shall mean completion of the Work in accordance
with this Agreement in addition to any other requirements that may specifically be required in this Agreement.


 


“Compliance
Certificate” shall mean a certificate in the form of Exhibit H.


 


“Construction
Commencement Date” shall mean October 26, 2015.


 


“Construction
Completion Date” shall mean November 30, 2017.


 


“Construction
Contract” shall mean that certain GC GMP Contract dated as of October 5, 2015 between Borrower and the Contractor regarding
the general contracting services to be performed in connection with the construction of the Improvements, as the same may be amended,
restated, modified or supplemented and in effect from time to time, in accordance with the terms and requirements set forth in
this Agreement.


 


“Construction Schedule”
shall mean a reasonably detailed project development and construction schedule specifying all of the projected start and completion
dates (or delivery dates) for each component of the development of the Project remaining to be completed, including each separate
component of performance of the Work and each license, permit or other public or private approval.


 


“Consultant”
shall mean an independent third party architect or engineer selected by Administrative Agent, which consultant shall not be an
employee of Administrative Agent or any of Administrative Agent’s Affiliates and which shall not be engaged by Administrative
Agent on a contingency fee basis.


 


“Contingency”
means the “Contingency” or equivalent line item in the Budget.


 


“Continue,”
“Continuation” and “Continued” each shall mean the continuation of a LIBOR Loan from one
Interest Period to another Interest Period pursuant to Section 3.2(h) of this Agreement.


 


“Contractor”
shall mean Summit Contracting Group, Inc., who shall perform general contracting services with respect to the construction of the
Improvements.


 


“Contractor’s
Consent” shall mean that certain Contractor’s Consent, Certificate and Agreement made by Contractor in favor of
Administrative Agent for the benefit of the Lenders.


 


“Convert,”
“Conversion” and “Converted” each shall mean the conversion of a Loan of one Type into a
Loan of another Type.


 


“Cure Period”
has the meaning ascribed to such term in Section 8(b) of this Agreement.


 




    4 


     

    

  


“Debt Service”
shall mean an amount equal to the payments of principal and interest that would have been payable under a hypothetical loan
during the Calculation Period, assuming (i) an initial loan balance equal to the sum of the Principal Balance at the inception
of the Calculation Period plus any unfunded Commitment for the Loans, (ii) an interest rate equal to the Notional Interest Rate,
and (iii) amortization of the sum of the Principal Balance over a thirty (30) year amortization period.


 


“Debt Service
Coverage Ratio” shall mean the ratio, as determined by Administrative Agent, of Net Operating Income to Debt Service.


 


“Declarations”
shall mean any documents containing covenants, conditions, restrictions, easements, operating agreements or the like, which benefit
or burden the Property, or both, whether or not recorded.


 


“Defaulting
Lender” has the meaning ascribed to such term in Section 3.7(a) of this Agreement.


 


“Default Notice”
has the meaning ascribed to such term in Section 3.7(b) of this Agreement.


 


“Default Rate”
shall mean the lesser of (a) five percent (5.0%) per annum plus the greater of (i) the Base Rate and (ii) the Adjusted LIBOR
Rate and (b) the maximum rate provided by Applicable Law.


 


“Determination
Date” shall mean each of December 31, 2017, June 30, 2018, the date of the First Extension Request, quarterly after the
Initial Maturity Date, the date of the Second Extension Request and quarterly after the Second Extended Maturity Date, as applicable;
provided, that all such dates are subject to a day for day extension (not to exceed thirty (30) days) in the event of any occurrence
of Force Majeure.


 


“Developer”
shall mean CDP Developer I, LLC, a Georgia limited liability company, who shall perform certain development services with respect
to the construction of the Improvements.


 


“Development
Fee” shall mean the fee paid to the Developer for performance of the development services with respect to the construction
of the Improvements, as set forth in the Budget. The Development Fee shall be paid to Developer in twenty-two (22) equal monthly
installment payments and as further described in this Agreement and the Budget.


 


“Eligible
Assignee” shall mean any Person who is: (i) currently a Lender; (ii) a commercial bank, trust company, insurance company,
investment bank or pension fund organized under the laws of the United States of America, or any state thereof, and having total
assets in excess of Two Hundred Fifty Million Dollars ($250,000,000.00); (iii) a savings and loan association or savings bank organized
under the laws of the United States of America, or any state thereof, and having a tangible net worth of at least Five Hundred
Million Dollars ($500,000,000.00); or (iv) a commercial bank organized under the laws of any other country which is a member of
the Organization for Economic Cooperation and Development, or a political subdivision of any such country, and having total assets
in excess of Ten Billion Dollars ($10,000,000,000.00), provided that such bank is acting through a branch or agency located in
the United States of America.


 




    5 


     

    

  


“Engineer”
shall mean J. Lancaster Associates, Inc., who shall perform certain engineering services with respect to the construction of the
Improvements.


 


“Engineer’s
Consent” shall mean that certain Engineer’s Consent, Certificate and Agreement made by Engineer in favor of Administrative
Agent for the benefit of the Lenders.


 


“Engineering
Contract” shall mean that certain contract between Owner and Engineer dated as of December 31, 2014 between Borrower
and the Engineer regarding the engineering services to be performed in connection with the construction of the Improvements.


 


“Environmental
Laws” shall mean any and all applicable Laws, Federal, state, regional, county or local statutes, rules, regulations
or ordinances, orders or any judicial or administrative decrees or decisions or common law, whether now existing or hereinafter
enacted, promulgated or issued, with respect to human health or the environment, any Hazardous Materials, drinking water, groundwater,
wetlands, landfills, open dumps, storage tanks, underground storage tanks, solid waste, waste water, storm water run-off, waste
emissions or wells. Without limiting the generality of the foregoing, the term “Environmental Law” shall mean and include,
without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C. Section 9601 et
seq.), the Resource Conservation and Recovery Act of 1976 (42 U.S.C. §6901 et seq.), the Federal Water Pollution Control Act
(33 U.S.C. §1251 et seq.), and the Clean Air Act (42 U.S.C. §7401 et seq.), and any applicable state law derived from
or implementing the federal laws recited above, in effect as of the date of this Agreement or as amended in the future.


 


“Equity Requirements”
shall mean an equity investment by Borrower in the Project of at least Twelve Million Seven Hundred Ninety Thousand and No/100
Dollars ($12,790,000.00). For purposes of calculating the amount of the equity investment, Land and Improvements held by Borrower
shall be valued at the cost to Borrower of such Land and Improvements unless otherwise approved by Administrative Agent in writing.


 


“Event of
Default” has the meaning ascribed to such term in Section 8 of this Agreement.


 


“Extended
Maturity Date” means the First Extended Maturity Date or the Second Extended Maturity Date, as applicable.


 


“Federal Funds
Rate” shall mean for any day, a fluctuating interest rate equal for each day during such period to the weighted average
of the rates on overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers,
as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations for such day
on such transactions received by Administrative Agent from three federal funds brokers of recognized standing selected by Administrative
Agent. Administrative Agent’s determination of such rate shall be binding and conclusive absent manifest error.


 




    6 


     

    

 


“Fee Letter”
shall mean that separate fee letter dated as of even date herewith by and between Borrower and Administrative Agent.


 


“First Extended
Maturity Date” shall mean December 16, 2019.


 


“First Extension
Option” has the meaning ascribed to such term in Section 3.5(a) of this Agreement.


 


“First Extension
Request” has the meaning ascribed to such term in Section 3.5(a)(i) of this Agreement.


 


“Force Majeure”
shall mean any event, documented to Administrative Agent’s reasonable satisfaction, beyond the reasonable control of Borrower,
including, without limitation, acts of God, war, riots, civil insurrections, hurricanes, tornados, floods, other weather events
beyond normal conditions as determined by NOAA, earthquakes, epidemics or plagues, acts or campaigns of terrorism or sabotage,
unusually significant interruptions to domestic or international transportation, trade restrictions, labor strikes, changes after
the date hereof in governmental prohibitions or regulations, and/or any other unforeseeable circumstances beyond the reasonable
control of Borrower. Without limiting matters that do not constitute Force Majeure events, the following shall not be Force Majeure
events: (i) lack of funds or financial resources, or (ii) inability to obtain any governmental licenses, approvals or permits unless
due to changes after the date hereof in governmental prohibitions, laws, rules, regulations, or ordinances.


 


“Gross Revenues”
shall mean all rental income (including minimum rent, additional rent, escalation and pass-through payments but excluding tenant
security deposits) and any other income projected to be received by Borrower from ownership and operation of the Project during
the Calculation Period under Leases that have been executed and approved by Administrative Agent (or which, in accordance with
the terms set forth in this Agreement, do not require Administrative Agent’s approval) and are in effect as of the relevant
Determination Date.


 


“Guarantor”
shall mean, individually and collectively, Robert Meyer, Mark Mechlowitz, Jorge Sardinas, Robert Fishel, ALSAR Limited Partnership,
a Nevada limited partnership and to the extent applicable and/or required by Administrative Agent, any Replacement Guarantor (as
hereinafter defined), jointly and severally.


 


“Guaranty”
shall mean, collectively, those certain Guaranties of Payment and Guaranties of Completion each dated as of even date herewith
from each Guarantor in favor of Administrative Agent for the benefit of the Lenders, as the same may be amended, restated, modified
or supplemented and in effect from time to time.


 





“Hazardous
Materials” shall mean any hazardous substance or any pollutant or contaminant defined as such in, or for purposes of,
any federal, state or local statute, law, ordinance, code, rule, regulation, order or decree, in each case as now or hereafter
in force and effect; asbestos or any substance or compound containing asbestos; polychlorinated biphenyls or any substance or compound
containing any polychlorinated biphenyl; petroleum and petroleum products; pesticides; and any other hazardous, toxic or dangerous
waste, substance or material but excluding materials customarily used in the construction and maintenance of buildings, and cleaning
materials, office products and other materials customarily used in the operation of properties such as the Property, provided that,
in each case, such materials are stored, handled, used and disposed of in compliance with applicable laws and regulations and are
individually and in the aggregate not in such quantities as may result in contamination of the Property or any part thereof.


 






    7 


     

    

 


“Improvements”
shall mean all structures, all paving, lighting, landscaping, utility lines and equipment and all other site improvements and all
other improvements to be constructed on the Land in accordance with the Plans and Specifications.


 


“In Balance”
shall mean that, as of any date of determination, as determined in Administrative Agent’s sole and absolute discretion: (1)
the Available Proceeds are sufficient to pay (i) the unpaid costs and expenses that will be incurred to complete all Project items
and all operating expenses to be incurred in connection with the Project, and (ii) all Project Costs remaining unpaid and all operating,
management and other expenses of the Project, (2) the costs and expenses to complete each line item in the Budget do not exceed
the Available Proceeds allocated therefor and (3) the remaining Contingency as a percentage of the remaining Budget is at least
as great as such percentage was on the Loan Opening Date.


 


“Indemnifiable
Amounts” has the meaning ascribed to such term in Section 10.7 of this Agreement.


 


“Indemnified
Party” has the meaning ascribed to such term in Section 11.9 of this Agreement.


 


“Indemnity
Agreement” shall mean that certain Environmental Indemnity Agreement dated as of even date herewith by Borrower and Guarantors
in favor of Administrative Agent for the benefit of the Lenders, as the same may be amended, restated, modified or supplemented
and in effect from time to time.


 


“Initial Advance”
shall mean the first draw or disbursement made from the proceeds of the Loans.


 


“Initial Maturity
Date” shall mean December 16, 2018.


 


“Interest
Period” shall mean a period of one (1) month provided that:


 


(a)          if
any Interest Period would otherwise end on a day that is not a Business Day, such Interest Period shall be extended to the following
Business Day unless the result of such extension would be to carry such Interest Period into another calendar month, in which event
such Interest Period shall end on the preceding Business Day; and


 


(b)          any
Interest Period that begins on a day for which there is no numerically corresponding day in the calendar month at the end of such
Interest Period shall end on the last Business Day of the calendar month at the end of such Interest Period.





 


“Interest Rate” shall
mean the Adjusted LIBOR Rate, unless Converted to the Base Rate pursuant to Section 3.9(a)(ii) or Section 3.9(b).


 






    8 


     

    

 


“Interest
Rate Determination Date” shall mean, for the initial disbursement of the Loans, the date of such disbursement, and for
all other purposes, the second (2nd) Business Day prior to the proposed commencement of a LIBOR Rate Loan or a Base
Rate Loan or the Continuation of a LIBOR Rate Loan or the Conversion of a LIBOR Rate Loan to a Base Rate Loan.


 


“Interest
Reserve” shall have the meaning ascribed to such term in Section 5.6 of this Agreement.


 


“Land”
shall mean the tract or tracts of land located in the City of Atlanta, Fulton County, Georgia 30324, commonly known as 2740 Cheshire
Bridge Road, NE and legally described in Exhibit A attached hereto.


 


“Lease”
or “Leases” shall have the meanings ascribed to such terms in the Mortgage.


 


“Lending Office”
means, for each Lender and for each Type of Loan, the office of such Lender specified as such on its signature page hereto or in
the applicable Assignment and Acceptance Agreement, or such other office of such Lender as such Lender may notify Administrative
Agent in writing from time to time.


 


“LIBOR Rate”
shall mean, on the Interest Rate Determination Date thereof, a variable rate of interest equal to, at Administrative Agent’s
election (i) the rate described as the “London Interbank Offered Rate” for the applicable Interest Period in the Money
Rates section of The Wall Street Journal, or (ii) the rate of interest determined by Administrative Agent in accordance with its
usual procedures (which determination shall be conclusive absent manifest error) to be the London interbank offered rate for U.S.
Dollars for the applicable Interest Period based upon the information presented on Bloomberg, L.P., page “BBAM”, or
such other page as may replace page BBAM on that service (the “Libor Index Page”), as of 11:00 a.m. (London time) on
the day of determination of such LIBOR Rate. If the Libor Index Page or The Wall Street Journal ceases to provide such quotes,
a comparable replacement, as determined by Administrative Agent, may be used by Administrative Agent. If on any date of determination
(a) more than one “London Interbank Offered Rate” for the applicable Interest Period is published in The Wall Street
Journal, or (b) more than one London interbank offered rate for the applicable Interest Period appears on the Libor Index Page,
the highest of such rates will be the rate used for such day. Administrative Agent’s determination of the LIBOR Rate shall
be conclusive, absent manifest error and shall remain fixed during such Interest Period.


 


“LIBOR Rate Loan” shall
mean each portion of the outstanding Principal Balance of the Loans that is bearing interest at an applicable Adjusted LIBOR Rate.


 


“Loan”
or “Loans” shall mean the loans from Lenders to Borrower in an amount not to exceed Thirty Eight Million One
Hundred Thirty Thousand and No/100 Dollars ($38,130,000.00) in the aggregate, which are to be disbursed pursuant to this Agreement
and which loans shall otherwise be governed by the provisions hereof.


 





“Loan Advance”
shall mean a disbursement of all or any portion of the Loans.


 






    9 


     

    

 


“Loan Documents”
shall mean this Agreement, the Mortgage, the Notes, the Assignment of Leases and Rents, the Assignment of Management Agreement,
the Pledge Agreement, the Indemnity Agreement, the Guaranty, the Rate Management Agreement, if any, the Fee Letter, the UCC-1 financing
statements to be filed against Borrower, the UCC-1 fixture filing to be recorded against the Real Property and every other document
now or hereafter evidencing, securing or otherwise executed in conjunction with the Loans, together with all amendments, restatements,
supplements and modifications thereof.


 


“Loan Expenses”
shall mean, collectively, the expenses, charges, costs (including both hard costs and soft costs) and fees relating to the making,
administration, negotiation, documentation or any other aspect of the Loans or relating to the performance of the Work, including,
without limitation, Administrative Agent’s and Lenders’ reasonable attorneys’ fees and costs actually incurred
at standard hourly rates (without regard to any statutory attorneys' fees provisions) in connection with the negotiation, documentation
and enforcement of the Loans, the fees of the Consultant, all recording fees and charges, title insurance charges and premiums,
escrow fees, fees of insurance consultants, costs of surveys and of other bonds required by the Title Company in connection with
clearing title to the Real Property or the issuance of title reports, binders, policies and the like, and all other costs, expenses,
charges and fees referred to in or necessitated by the terms of this Agreement or any of the other Loan Documents.


 


“Loan Opening
Date” shall mean the date of this Agreement.


 


“Material
Adverse Occurrence” shall mean an occurrence of any nature (including any adverse determination in any litigation, arbitration
or governmental investigation or proceeding) which materially adversely affects the financial condition or operations of Borrower
and/or any Guarantor, with respect to the Project such that the Borrower and/or any Guarantor (as applicable) no longer meets any
material requirement or threshold used by Administrative Agent in underwriting the Loan, or materially impairs the ability of Borrower
and/or any Guarantor to perform its obligations under the Loan Documents or the ability of Administrative Agent or any Lender to
enforce its rights or remedies under the Loan Documents.


 


“Material
Subcontract” shall mean those certain contacts for subcontractor work by and between Borrower or Contractor and the following
entities: (i) Eagle Excavating, (ii) Earth Tech, (iii) Atlanta Precast, (iv) Arango, (v) Roswell, (vi) Sunshine State, (vii) JR
Hobbs, (viii) FLSA, and (ix) Power Design.


 


“Maturity
Date” shall mean the Initial Maturity Date or the Extended Maturity Date, as applicable and as they may be earlier terminated
or extended in accordance with the terms of this Agreement.


 


“Mortgage”
shall mean the Deed to Secure Debt, Security Agreement, Assignment of Leases and Rents and Fixture Filing encumbering the Property
dated as of even date herewith by Borrower for the benefit of Administrative Agent for the benefit of the Lenders to secure the
Loans, as the same may be amended, restated, modified or supplemented and in effect from time to time.


 




    10 


     

    

  


“Net Operating
Income” shall mean all Gross Revenues minus all Operating Expenses.


 


“Non-Consenting Lender”
has the meaning ascribed to such term in Section 10.12(g) of this Agreement.


 


“Note”
or “Notes” shall mean the Promissory Note or Promissory Notes evidencing the Loans to Borrower payable to the
order of each Lender in the maximum principal amount of such Lender’s Commitment, as the same may be amended, restated, modified
or supplemented and in effect from time to time.


 


“Notional
Interest Rate” shall mean a rate of interest equal to the greatest of (i) the interest rate of six percent (6.0%)
per annum and (ii) the aggregate per annum rate equal to the Treasury Rate plus two and one-half percent (2.5%) and (iii)
the actual rate of interest accruing on the Loans as of the Determination Date taking into account any interest rate risk management
agreement that exists).


 


“Obligations”
means, individually and collectively: (a) the aggregate Principal Balance of, and all accrued and unpaid interest on, all Loans;
(b) all Rate Management Obligations; and (c) all other indebtedness, liabilities, obligations, covenants and duties of Borrower
and the other Obligors owing to Administrative Agent or any Lender of every kind, nature and description, under or in respect of
this Agreement or any of the other Loan Documents, including, without limitation, the fees and indemnification obligations, whether
direct or indirect, absolute or contingent, due or not due, contractual or tortious, liquidated or unliquidated, and whether or
not evidenced by any promissory note.


 


“Obligors”
shall mean any Person now or hereafter primarily or secondarily obligated to pay all or any part of the Obligations, including,
without limitation, Borrower and the Guarantors.


 


“OFAC”
has the meaning ascribed to such term in Section 7.17 of this Agreement.


 


“Operating
Expenses” shall mean the greater of (i) the estimated annual expenses with respect to the operation or the ownership
of the Property as set forth in the most current appraisal of the Property in Administrative Agent’s possession, and (ii)
all actual expenditures of all kinds for the applicable Calculation Period (excluding any extraordinary non-recurring expenses),
borne by Borrower without actual reimbursement, calculated on an annualized basis, made with respect to the operation or the ownership
of the Property in the normal course of business determined on an accrual basis consistent with industry standards for such period
(as determined by GAAP including, but not limited to, as applicable, expenditures for taxes (assuming the full assessment of the
Property as provided and confirmed by the applicable taxing authorities, provided however, such assumption shall not include any
abatement of the taxes on the Improvements during the term of the Loans), insurance, repairs, replacements, maintenance, tenant
improvements, leasing commissions, management fees (such management fees to be in an amount equal to the greater of (a) the actual
fees due under the Property Management Contract (or any replacement thereof as approved by Administrative Agent) and (b) three
percent (3%) per annum), salaries, advertising expenses, professional fees, wages and utility costs, amounts payable with respect
to the Property under or with respect to any title exceptions reasonably permitted by Administrative Agent and reserves for repairs
and replacements and for capital expenditures (such reserves for capital expenditures to be in an amount equal to Two Hundred Fifty
and No/100 Dollars ($250.00) per unit per annum) and reasonable additions thereto; but expressly excluding: (a) any debt service
on the Notes, (b) expenditures made out of reserves previously created; and (c) non-cash charges, specifically including depreciation.
Notwithstanding the foregoing, if at the time of any determination of Operating Expenses under this Agreement, the expenses cited
in the appraisal referred to in part (i) of this definition are greater than the expenses referenced in part (ii) of this definition,
Administrative Agent shall consider in good faith and acting with reasonable discretion whether to approve and utilize such expenses
in determining the Operating Expenses.


 






    11 


     

    

 


“Owner” has the meaning
ascribed to such term in Section 7.14(d) of this Agreement.


 


“Participant”
has the meaning ascribed to such term in Section 10.11(b) of this Agreement.


 


“Permitted
Exceptions” shall mean the exceptions to the title of the Real Property listed on Exhibit C attached hereto
and all Leases of the Property (approved by Administrative Agent if such approval is required) hereafter executed in accordance
with the terms of the Loan Documents.


 


“Permitted
Transfers” means the following so long as (i) the original guaranties signed by each party comprising Guarantor remain
in full force and effect (unless replaced by a Replacement Guarantor in accordance with this Agreement) and (ii) management of
the Project (including, without limitation, management of the construction of the Project if construction has not been completed)
remains reasonably satisfactory to the Administrative Agent:


 


(c)          a
Transfer by devise or descent or by operation of law upon the death of an individual member, partner or shareholder of any Person
that is an indirect legal or beneficial owner of Borrower;


 


(d)          a
Transfer of the membership interests in BR/CDP CB Venture LLC (“Venture”), the sole manager of Borrower and
a beneficiary of the BR/CDP Cheshire Bridge Trust (the “Trust”), the sole member of Borrower, by BR Cheshire Member,
LLC (“BR Member”) to CB Developer LLC, a Georgia limited liability company (the “CDP Member”);


 


(e)          as
long as the Control Condition remains satisfied after the Transfer, any Transfer of direct or indirect ownership interests in CDP
Member or in any entity which owns, directly or indirectly, any ownership interests in CDP Member or any such owner of any direct
or indirect ownership interests in CDP Member;


 


(f)          a
Transfer of interests in BR Member by Bluerock Special Opportunity + Income Fund III, LLC, (together with any permitted successor
or assign, the “Existing Member”) or a direct or indirect interest in an Existing Member to another Existing
Member or to Affiliates of BR Member, further provided after such Transfer (i) the BR Member continues to be Controlled, directly
or indirectly, by Bluerock Real Estate, L.L.C. and/or BR REIT; (ii) BR Member continues to be a member of Venture and Venture continues
to be both the sole manager of CB Owner, LLC and a beneficiary of the Trust and (iii) the Trust continues to be the sole member
of Borrower;


 






    12 


     

    

 


(g)          a
Transfer of direct or indirect interests in BR Member by (1) the admission of Bluerock Residential Growth REIT, Inc (“BR
REIT”), Bluerock Residential Holdings, LP (“BR Operating Partnership”) or an Affiliate directly or
indirectly owned and controlled by BR REIT or BR Operating Partnership as a preferred equity member of BR Member holding typical
preferred equity rights in BR Member as the owners of BR Member approve, including but not limited to, the right to a preferred
return with respect to the other members of BR Member, consent rights over certain major decisions of BR Member, additional management
control over BR Member in the event of a default under the preferred equity terms, and the right to dilute the ownership and other
rights of the other members of BR Member in connection with any failure to comply with the preferred equity terms (and the associated
modification of the limited liability company agreement of BR Member in order to reflect such terms), (2) the conversion of such
preferred equity membership interest, anticipated to occur within six (6) months before or after the stabilization of the Property,
into a common membership interest in, and management control over, BR Member by the preferred equity party (and the associated
modification of the limited liability company agreement of BR Member to reflect such terms), and (3) the redemption by the BR Member
of the preferred equity party’s preferred equity membership interest in accordance with the terms of Article X of the Bluerock
Member’s operating agreement; provided after such Transfer (i) Administrative Agent receives written notice of, and an organizational
chart reflecting, the new structure; (ii) BR Member continues to be a member of Venture and Venture continues to be both the sole
manager of Borrower and a beneficiary of the Trust; (iii) the Trust continues to be the sole member of the Borrower; and (iv) the
parties exercising Control of Borrower, including without limitation principals of the Guarantors, continue to maintain substantially
the same degree of Control, directly or indirectly, over Borrower as they did on the date of this Agreement;


 


(h)          a
Transfer (including any issuance or redemption) of non-controlling membership interests, corporate stock, partnership interests
or other ownership interests in any direct or indirect owner of the BR Member, including the Existing Members and, following a
Transfer pursuant to subsection (e) above, BR REIT and/or BR Operating Partnership (or an Affiliate directly or indirectly owned
or controlled by BR REIT or BR Operating Partnership (the “Affected Entity”), provided after such Transfer (i)
the Affected Entity continues to be Controlled by the same Person or Persons that Controlled the Affected Entity prior to such
Transfers; (ii) BR Member continues to be a member of Venture and Venture continues to be both the sole manager of Borrower and
a beneficiary of the Trust; (iii) the Trust continues to be the sole member of Borrower; and (iv) the parties exercising Control
of Borrower continue to maintain substantially the same degree of Control, directly or indirectly, over Borrower as they did on
the date of this Agreement;


 


(i)          any
Transfers, issuances or redemptions of direct or indirect ownership interests in CDP Member so long as following such Transfer:
(1) the Control Condition is satisfied, (2) CDP Member continues to be Controlled by Catalyst Development Partners II, LLC and
(3) no less than 51% of the ownership interests in Catalyst Development Partners II, LLC continue to be owned directly or indirectly
by Robert Meyer, Mark Mechlowitz, Jorge Sardinas or Robert Fishal.


 






    13 


     

    

 


(j)          a
transfer of direct or indirect interests in BR Member in conjunction with a sale of a majority (or all) of the outstanding shares
(or partnership interests) of BR REIT or BR Operating Partnership, or a merger, combination or “roll-up” of BR REIT
(or its operating partnership) into a partnership, limited liability company or other entity or participation in an UPREIT, DOWNREIT
or similar transaction with a real estate investment trust or other entity (any of the foregoing hereinafter referred to as a “REIT
Sale”), where the succeeding entity has a net worth and liquidity no less than the greater of (a) $200,000,000 and $25,000,000,
or (b) that of BR REIT or BR Operating Partnership, its operating partnership, as the case may be, have on the date of the transfer
and is engaged in the business of owning and operating commercial real estate properties.;


 


(k)          a
transfer of membership interests in Venture by the CDP Member to the BR Member (and the corresponding transfer of the tenant in
common/beneficial trust interests of Commander Habersham, LLC and Duke of Lexington, LLC to the BR Member); provided, however,
that notwithstanding anything to the contrary contained herein, any Transfer of membership interests in Venture by CDP Member to
BR Member pursuant to the buy/sell provisions in the operating agreement of Venture or any other Transfer that results in CDP Member
no longer being a Manager of Venture and neither the CDP Member nor any principals of the Guarantors exercising substantially the
same degree of Control, directly or indirectly, over Venture as they exercised on the date of this Agreement, shall be subject
to the prior written approval of Administrative Agent in Administrative Agent’s sole but reasonable discretion; and


 


(l)          a
transfer of the tenant in common/beneficial trust interests held by Commander Habersham, LLC and Duke of Lexington, LLC to one
another or to Venture, whether pursuant to the exercise of remedies under the Tenant in Common Documents or otherwise.


 


For purposes hereof
“Control Condition” will mean that the current guarantors will continue to exercise substantially the same degree of
control over the Borrower and Venture as they do at Closing or if the BR REIT has become a Replacement Guarantor, the BR REIT continues
to exercise substantially the same degree of control over the Borrower and Venture as it does at the time that it became the Replacement
Guarantor .


 


“Person”
shall mean any individual, firm, corporation, business enterprise, trust, association, joint venture, partnership, governmental
body or other entity, whether acting in an individual, fiduciary or other capacity.


 


“Personal
Property” shall have the meaning ascribed to such term in the Mortgage.


 


“Plans and
Specifications” shall mean, collectively, the architectural and engineering plans and specifications relating to the
Work, or any portion thereof, all of which must be acceptable to Administrative Agent in its sole but reasonable discretion.


 


“Post-Foreclosure
Plan” shall have the meaning ascribed to such term in Section 10.13.


 


“Prime Rate”
shall mean an annual rate of interest equal to the prime rate as announced from time to time by Administrative Agent or its parent
(which is not necessarily the lowest rate charged to any customer), adjusted and changing immediately when and as said prime rate
changes.


 






    14 


     

    

 


“Principal
Balance” shall mean the unpaid principal balance of the Loans outstanding from time to time.


 


“Principal
Office” shall mean 120 S. LaSalle Street, Chicago, Illinois 60603.


 


“Project”
shall mean a multi-family development with 282 Class “A” apartment units and related Improvements to be developed in
accordance with the terms of this Agreement.


 


“Project Costs”
shall mean all costs required to complete the Project, including, without limitation, each of the following items, but only to
the extent specifically set forth in the Budget and only to the extent specifically required to complete the Project:


 


(a)          The
actual hard costs of completing construction of the Improvements, including demolition and environmental remediation costs, if
any;


 


(b)          The
actual costs of acquiring the Land and acquiring and installing the Personal Property;


 


(c)          Premiums
for title, casualty, liability and other insurance required by Administrative Agent;


 


(d)          The
cost of recording and filing the applicable Loan Documents;


 


(e)          Real
estate taxes and other assessments which Borrower is obligated to pay during the term of the Loans;


 


(f)          Interest,
fees and similar charges payable by Borrower to Administrative Agent or any Lender hereunder or under the Notes or any of the other
Loan Documents;


 


(g)          Legal
and other closing costs;


 


(h)          Architectural
and consulting fees;


 


(i)          The
Development Fee (paid over twenty-two (22) months in equal monthly installments);


 


(j)          Such
other soft costs as may be set forth in the Budget or as may be hereafter approved in writing by Administrative Agent; and


 


(k)          All
other Loan Expenses.


 








“Property”
shall mean the Real Property and the Personal Property (whether before or after completion of the Work) and all other tangible
and intangible assets benefitting or otherwise appertaining to the Project, including, without limitation, all of the collateral
for the Loans described in the Loan Documents.


 


“Property
Management Contract” shall mean that certain Management Agreement to be executed post-closing by and between Borrower
and the Property Manager, as amended, restated, modified or supplemented in accordance with the terms of this Agreement.


 






    15 


     

    

 


“Property
Manager” shall mean Greystar Real Estate Partners LLC, who shall serve as the property manager for the Property in connection
with the terms of the Property Management Contract.


 


“Purchase
Notice” has the meaning ascribed to such term in Section 3.7(b) of this Agreement.


 


“Purchasing
Party” has the meaning ascribed to such term in Section 10.12(g) of this Agreement.


 


“Rate Management
Agreement” shall mean any agreement, device or arrangement providing for payments which are related to fluctuations of
interest rates, exchange rates, forward rates, or equity prices, including, but not limited to dollar-denominated or cross-currency
interest rate exchange agreements, forward currency exchange agreements, interest rate cap or collar protection agreements, forward
rate currency or interest rate options, puts and warrants, and any agreement pertaining to equity derivative transactions (e.g.,
equity or equity index swaps, options, caps, floors, collars and forwards), including, without limitation, any ISDA Master Agreement
between Borrower and Administrative Agent or any Affiliate of Administrative Agent, and any schedules, confirmations and documents
and other confirming evidence between the parties confirming transactions thereunder, all whether now existing or hereafter arising,
and in each case as the same may be amended, restated, modified or supplemented and in effect from time to time.


 


“Rate Management
Obligations” shall mean any and all obligations of Borrower to Administrative Agent or any Affiliate of Administrative
Agent, whether absolute, contingent or otherwise and howsoever and whensoever (whether now or hereafter) created, arising, evidenced
or acquired (including all renewals, extensions and modifications thereof and substitutions therefore), under or in connection
with (i) any and all Rate Management Agreements, and (ii) any and all cancellations, buy-backs, reversals, terminations or assignments
of any Rate Management Agreement.


 


“Real Property”
shall mean the Land, the Improvements and all easements and appurtenants thereto.


 


“Register”
has the meaning ascribed to such term in Section 10.11(d) of this Agreement.


 


“Regulatory
Change” shall mean, with respect to any Lender, any change in Applicable Law effective after the date hereof (including
without limitation, Regulation D of the Board of Governors of the Federal Reserve System) or the adoption or making after such
date of any interpretation, directive or request applying to a class of banks, including such Lender, of or under any Applicable
Law (whether or not having the force of law and whether or not failure to comply therewith would be unlawful) by any Governmental
Authority or monetary authority charged with the interpretation or administration thereof or compliance by any Lender with any
request or directive regarding capital adequacy.


 


“Requisite
Lenders” shall mean, as of any date, Lenders whose aggregate Commitment Percentage equals or exceeds sixty-six and two
thirds of one percent (66-2/3%) (excluding Defaulting Lenders who, accordingly, are not entitled to vote), or if the Commitments
(or any part thereof) are no longer in effect, Lenders holding at least sixty-six and two thirds of one percent (66-2/3%) of
the aggregate outstanding principal amount of the Loans (excluding Defaulting Lenders who, accordingly, are not entitled to vote).


 






    16 


     

    

 


“Replacement
Guarantor” shall mean any Person who becomes a Guarantor in accordance with this Agreement and replaces one or more of
the original Guarantors.


 


“Reserves”
shall mean the reserves described in Section 3.1(b) of this Agreement.


 


“Retainage”
shall mean the portion of each Loan Advance retained by Administrative Agent in accordance with Section 5.2 of this Agreement.


 


“Second Extended
Maturity Date” shall mean December 16, 2020.


 


“Second Extension
Option” has the meaning ascribed to such term in Section 3.5(b) of this Agreement.


 


“Second Extension
Request” has the meaning ascribed to such term in Section 3.5(b)(i) of this Agreement.


 


“Signing Entity”
shall mean any entity (other than Borrower itself) that appears in the signature block of Borrower in any Loan Document, if
any.


 


“State”
shall mean the state in which the Real Property is located.


 


“Subcontractor”
shall mean any person or entity having a contract with Contractor or any Subcontractor for the construction, equipping or supplying
by such Subcontractor of any portion of the Project.


 


“Subcontracts”
shall mean all subcontracts now or hereafter entered into by the Contractor or Borrower for the construction of any of the Improvements
or the installation of any of the Personal Property or the performance of any other aspect of the Work, together with all sub-subcontracts,
material or equipment purchase orders, equipment leases and other agreements entered into by the Contractor, any Subcontractor
or any other party supplying labor or materials in connection with the Work.


 


“Survey”
shall mean the plat of survey of the Real Property as described in Section 4.2 of this Agreement.


 


“Taking”
has the meaning ascribed to such term in Section 10.10 of this Agreement.


 


“Taxes”
has the meaning ascribed to such term in Section 3.8 of this Agreement.


 


“Tenant”
shall mean each tenant hereafter occupying space at the Real Property pursuant to a Lease.


 


“Title Company”
shall mean Calloway Title and Escrow, LLC as agent for First American Title Insurance Company.


 






    17 


     

    

 


“Title Policy”
shall mean the title insurance policy described in Section 4.4 of this Agreement.


 


“Treasury
Rate” shall mean the yield (converted as necessary to an annual interest rate) on the United States Treasury Security
(as hereinafter defined) having a maturity date closest to ten (10) years from the Determination Date as displayed in the Bloomberg
Financial Markets system at approximately 8:00 a.m. Chicago, Illinois time on the second (2nd) Business Day preceding the Determination
Date, provided, however, if the Bloomberg Financial Markets system is no longer available, Administrative Agent, in its sole discretion,
shall designate another daily financial or governmental news service or publication of national circulation to be used to determine
such yield and/or such spread. As used herein “United States Treasury Security” shall mean any actively traded United
States Treasury bond, bill or note, and if more than one issue of United States Treasury Security is scheduled to mature on or
about ten (10) years from the Determination Date then to the extent possible, the United States Treasury Security maturing closest
and prior to the tenth (10th) anniversary of the Determination Date will be chosen as the basis of the yield.


 


“Type”
shall mean with respect to any Loan, refers to whether such Loan is a LIBOR Rate Loan or Base Rate Loan.


 


“Unmatured
Default” shall mean an event or circumstance that with the giving of notice, the passage of time, or both, would constitute
an Event of Default: provided no Unmatured Default shall prohibit Borrower from exercising any rights hereunder, realizing any
benefits hereunder or obtaining or realizing any threshold or benchmark set forth in the Loan Documents if the event or circumstance
that constitutes the Unmatured Default is cured within the applicable cure period. By way of example, an Unmatured Default shall
not prohibit or impede (i) Borrower’s ability to extend the term of the Loan pursuant to Section 3.5 hereof, or (ii)
the reduction of the Principal Cap pursuant to the terms of any Guaranty if the event or circumstance that constitutes the Unmatured
Default is cured within the applicable cure period.


 


“Work”
shall mean the performance of all work to be performed and the supplying of all materials to be supplied in connection with the
building, furnishing, fixturing and equipping of the Project, all in accordance with the provisions of this Agreement and with
the Plans and Specifications, the Budget and the other documentation approved by Administrative Agent and as necessary to receive
a final certificate of occupancy from the appropriate governing municipality.


 






    18 


     

    

 


SECTION
3.

LOAN TERMS


 


3.1.         Commitments,
Loans and Notes.


 


(a)          Generally.
Subject to the terms and conditions hereof, each Lender severally and not jointly agrees to make Loans to Borrower in an aggregate
principal amount at any one time outstanding up to, but not exceeding, the amount of such Lender’s Commitment less
such Lender’s Commitment Percentage of the Reserves; provided that, the Lenders shall not be required to disburse any Loan
Advances at any time that the Loan is not In Balance or if the requested disbursement would cause the Loan to not be In Balance.
Borrower shall request and Lenders shall be required to make, subject to the terms and conditions provided herein, disbursements
of the Loan not more frequently than once each calendar month, except as otherwise reasonably approved by Administrative Agent.
Administrative Agent, on account of the Lenders, may at any time take such action as it deems appropriate to verify that the conditions
precedent to each disbursement have been satisfied, including, without limitation, verification of any amounts due under the Construction
Contract or any Subcontract. Borrower agrees to cooperate with Administrative Agent in any such action. If in the course of any
such verification, any amount shown on any contract or Subcontract entered into for the performance of any portion of the Work,
or any application for payment, sworn statement or waiver of lien is subject to a possible discrepancy, Borrower shall resolve
such discrepancy to Administrative Agent’s reasonable satisfaction prior to any disbursements being made. Borrower hereby
requests and authorizes Administrative Agent to make Loan Advances directly to itself or the Lenders, as applicable, for payment
and reimbursement of all Loan Expenses incurred by the Lenders and Administrative Agent in connection with the Loans.


 


(b)          Reserves.
In addition to any reserves for specific line items that are already established in the Budget, Administrative Agent, on behalf
of the Lenders, may establish and set aside out of the undisbursed proceeds of the Loans, reserves (collectively, the “Reserves”)
in such amounts as may be reasonably estimated by Administrative Agent from time to time to provide for payment of the items of
any Project Cost as the same may accrue or become payable prior to the repayment in full of the Loan. Except as may be approved
in advance by Administrative Agent (which approval shall not be unreasonably withheld, conditioned or delayed), amounts set aside
as Reserves shall not be available for disbursement to Borrower for any purpose other than payment of the item or group of items
for which the Reserve was established. Based upon the facts then available to Administrative Agent, Administrative Agent may adjust
and reallocate the amount of any Reserve from time to time upon delivery of prior written notice to Borrower. Items for which Reserves
may be established shall include, but not be limited to, (i) Loan Expenses, (ii) interest on the Loans, (iii) real estate taxes
and assessments, (iv) premiums on insurance policies and bonds (if any) required to be furnished by Borrower hereunder, (v) leasing
commissions and tenant improvements, if applicable, and (vi) contingencies. The reasonable determination of the amount of the Reserves
by Administrative Agent from time to time, and the reasonable estimates made by Administrative Agent from time to time in connection
therewith, shall be controlling; provided that the calculations of such determinations and estimates shall be provided to Borrower
upon request therefor. Interest shall not accrue on the Reserves until same are disbursed. Provided that no Unmatured Default or
Event of Default has occurred and is continuing under this Agreement or any of the other Loan Documents, Administrative Agent shall
disburse the Reserves for the purposes and uses thereof, by paying the items for which the Reserves were set aside, or by reimbursing
Borrower for having paid the same upon production of satisfactory evidence of such payments.


 


(c)          Notes.
The Loans made by each Lender shall be evidenced by certain Promissory Notes of Borrower, each substantially in the form of Exhibit B
hereto, with appropriate insertions therein as to payee, date and principal amount, payable to the order of such Lender. The date,
amount and type of each advance and payment or prepayment of principal with respect thereto, each Continuation thereof, and, in
the case of LIBOR Rate Loans, the length of each Interest Period with respect thereto, shall be recorded by each Lender on its
books and (at the discretion of each Lender) endorsed by each Lender on the schedules annexed to and constituting a part of its
Note. Each such recordation, to the extent consistent with the reasonable determination of Administrative Agent, shall constitute
prima facie evidence of the accuracy of the information so recorded in the absence of manifest error. The Note of each Lender shall
(i) be dated the date hereof or, if a Lender’s interest is hereafter assigned, the effective date of such assignment,
(ii) be stated to mature on the Maturity Date, and (iii) provide for the payment of principal and interest in accordance
with Section 3.3 hereof.


 






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(d)          Commitments
Several. The failure of any Lender to make a requested Loan on any date shall not relieve any other Lender of its obligation
(if any) to make a Loan on such date, but no Lender shall be responsible for the failure of any other Lender to make any Loan to
be made by such other Lender.


 


(e)          Fees.
Administrative Agent has fully earned a non-refundable loan fee in the amount set forth in the Fee Letter and certain construction
administrative fees as set forth in the Fee Letter.


 


(f)          Replacement
Guarantors. Borrower's Obligations hereunder are guaranteed by the Guarantors pursuant to the Guaranty. Any provision of this
Agreement or any other Loan Document to the contrary notwithstanding, in the event of death or incapacity of any Guarantor, no
Event of Default shall be deemed to have occurred provided, that (i) management of the Project (including, without limitation,
management of the construction of the Project if construction has not been completed) remains satisfactory to Administrative Agent
and (ii) a Replacement Guarantor satisfactory to Administrative Agent in its sole discretion executes a Guaranty in substantially
the same form as the Guaranty signed by the deceased or incapacitated Guarantor. Bluerock Residential Growth REIT, Inc. shall be
deemed an acceptable Replacement Guarantor for part (ii) above as long as it can demonstrate to Administrative Agent’s reasonable
satisfaction that its publicly reported liquidity is in excess of $15,000,000.00 and it is not in default under any material agreement,
indenture or instrument to which it is a party or by which it is bound.


 


3.2.         Interest
Rates, Late Charges.


 


(a)          Interest
Rate. Borrower promises to pay to Administrative Agent, for the account of each Lender, interest on the unpaid principal amount
of each Loan made by such Lender for the period from and including the date of the making of such Loan, to (but excluding) the
date such Loan shall be paid in full, at the Adjusted LIBOR Rate for such Loan for the Interest Period therefore, subject to Section
3.2(b), Section 3.9(a), Section 3.9(a), and Section 3.9(b) hereof.


 


(b)          Default
Rate. Upon the occurrence of an Event of Default under this Agreement or any of the other Loan Documents and thereafter until
such Event of Default is cured (to the satisfaction of Administrative Agent), and after the Maturity Date or following the acceleration
of the maturity of the Loans, Administrative Agent, at its option, may, if permitted under Applicable Law, increase the rate of
interest on the Principal Balance and any other amounts then owing by Borrower to Administrative Agent or Lenders to the Default
Rate until paid in full.


 






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(c)          Late
Charge. If any payment under this Agreement or any other Loan Document is not made within five (5) days after such payment
is due (except for any principal payment due on the Maturity Date), and such failure of timely payment is not caused (in whole
or in part) by any wrongful act, wrongful failure or wrongful delay by Administrative Agent or any Lender, then, in addition to
the payment of the amount so due, Borrower shall pay to Administrative Agent for the account of Lenders a “late charge”
equal to five percent (5.0%) of the amount of that payment. This late charge may be assessed without notice, shall be immediately
due and payable and shall be in addition to all other rights and remedies available to Administrative Agent. Borrower agrees that
the damages to be sustained by the Lenders for the detriment caused by any late payment are extremely difficult and impractical
to ascertain, and that the amount of five cents ($0.05) for each one dollar due is a reasonable estimate of such damages, does
not constitute interest, and is not a penalty.


 


(d)          Number
of Interest Periods. N/A


 


(e)          Minimum
Amounts for Borrowings. N/A


 


(f)          Computations.
Unless otherwise expressly set forth herein, any accrued interest on any Loan, any fees or any other Obligations due hereunder
shall be computed on the basis of a year of three hundred sixty (360) days and the actual number of days elapsed.


 


(g)          Initial
Interest Period. The Interest Period shall be a one-month Interest Period.


 


(h)          Continuation.
Each LIBOR Rate Loan will automatically, on the last day of the current Interest Period therefor, continue as a LIBOR Rate Loan
with a one-month Interest Period.


 


(i)          Usury.
In no event shall the amount of interest due or payable on the Loans or other Obligations exceed the maximum rate of interest allowed
by Applicable Law and, if any such payment is paid by Borrower or received by any Lender, then such excess sum shall be credited
as a payment of principal, unless Borrower shall notify the respective Lender in writing that Borrower elects to have such excess
sum returned to it forthwith. It is the express intent of the parties hereto that Borrower not pay and the Lenders not receive,
directly or indirectly, in any manner whatsoever, interest in excess of that which may be lawfully paid by Borrower under Applicable
Law. Borrower agrees to the effective rate of interest provided herein plus any additional rate of interest resulting from any
other charges in the nature of interest paid or to be paid by Borrower in connection with the Notes or this Agreement.


 





(j)          Agreement
Regarding Interest and Charges. The parties hereto hereby agree and stipulate that the only charge imposed upon Borrower for
the use of money in connection with this Agreement is and shall be the interest specifically described in Section 3.2(a)
and Section 3.3(a). Notwithstanding the foregoing, the parties hereto further agree and stipulate that all agency fees,
syndication fees, arrangement fees, amendment fees, up-front fees, commitment fees, facility fees, unused fee, exit fees, closing
fees, letter of credit fees, underwriting fees, default charges, late charges, funding or “breakage” charges, increased
cost charges, reasonable attorneys’ fees and costs actually incurred at standard hourly rates (without regard to any statutory
attorneys' fees provisions) and reimbursement for costs and expenses paid by Administrative Agent or any Lender to third parties
or for damages incurred by Administrative Agent or any Lender, or any other similar amounts are charges made to compensate Administrative
Agent or any such Lender for underwriting or administrative services and costs or losses performed or incurred, and to be performed
or incurred, by Administrative Agent and the Lenders in connection with this Agreement and shall under no circumstances be deemed
to be charges for the use of money. Any use by Borrower of certificates of deposit issued by any Lender or other accounts maintained
with any Lender has been and shall be voluntary on the part of Borrower. All charges other than charges for the use of money shall
be fully earned and nonrefundable when due.


 






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3.3.         Payments.


 


(a)          Payments
of Interest. Commencing January 1, 2016 and on the first (1st) day of each calendar month thereafter, Borrower shall
pay accrued interest on each Loan in arrears. In addition, upon the payment, prepayment or Continuation of such Loan, Borrower
shall pay accrued interest on the principal amount so paid, prepaid, or Continued. Interest payable at the Default Rate shall be
payable from time to time on demand, in accordance with the provisions of Section 3.2(b). Promptly after the determination of any
interest rate provided for herein or any change therein, Administrative Agent shall give notice thereof to the Lenders to which
such interest is payable and to Borrower. All determinations of an Interest Rate hereunder, made by Administrative Agent in accordance
with the applicable provisions of this Agreement, shall be conclusive and binding on the Lenders and Borrower for all purposes,
absent manifest error.


 


(b)          Principal
Payments. In addition to the interest payments required to be made pursuant to Section 3.3(a) above, in the event
Borrower elects to extend the Initial Maturity Date pursuant to Section 3.5 below, Borrower shall make monthly payments
of principal, each of which shall equal the principal portion of the payment for the applicable month that would be due based upon
an amortization of the full committed Loan amount over a period of thirty (30) years using an assumed interest rate of six percent
(6%) per annum. For clarification, if Borrower exercises the “First Extension Option” as provided in Section 3.5 below,
the monthly principal payments that shall be due during such extension shall be the first twelve (12) payments from said amortization
schedule and, if Borrower exercises the “Second Extension Option” as provided in Section 3.5 below, the monthly principal
payments that shall be due during such extension will be the principal portion of the thirteenth (13th) through the
twenty-fourth (24th) payments from said amortization schedule.


 


(c)          Repayment
of Loans. Borrower shall repay the entire outstanding principal amount of, and all accrued but unpaid interest on, the Loans,
together with all other amounts then outstanding under this Agreement on the Maturity Date (as the same may be extended pursuant
to Section 3.5, hereunder).





 


3.4.         Prepayments.


 


(a)          Optional.
Subject to Section 3.9(d) and except for any Rate Management Obligations, if applicable, Borrower may prepay in whole or in part
any Loan at any time without premium or penalty. Borrower shall give Administrative Agent at least ten (10) days prior written
notice of the prepayment of any Loan. Prepayments shall be accompanied by the payment of all accrued interest on the amount so
prepaid and, in the case of prepayments of each LIBOR Rate Loan, by the amounts set forth in Section 3.9(a)(i) and
Section 3.9(d), if applicable.


 






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(b)          Mandatory.
If at any time the aggregate principal amount of all outstanding Loans, exceeds the amount of the total Commitment in effect at
such time, Borrower shall immediately pay to Administrative Agent for the accounts of the Lenders the amount of such excess. Such
payment shall be applied by Administrative Agent to pay all amounts of principal outstanding on the Loans. If Borrower is required
to pay any outstanding LIBOR Rate Loans by reason of this Section 3.4(b) prior to the end of the applicable Interest Period therefor,
Borrower shall pay all amounts due under Section 3.9(d).


 


(c)          Out
of Balance Payments. If Administrative Agent deems the Project to not be In Balance, Borrower shall, within five (5) Business
Days after written request by Administrative Agent, deposit into an account maintained by Administrative Agent (and hereby pledged
to Administrative Agent for the benefit of the Lenders as additional security for the Loans) an amount equal to the amount Administrative
Agent in its sole discretion determines is required in order for the Loan to be In Balance; provided that if the Work has been
completed, Borrower shall prepay the Loan by such amount rather than make such deposit. The sums thus deposited (but not the sums
prepaid, if applicable, per the proviso in the preceding sentence) with Administrative Agent will be disbursed by Administrative
Agent to complete the Work prior to any further disbursement of Loan proceeds. No interest shall be payable to Borrower on the
amounts so deposited pursuant to this subparagraph.


 


3.5.         Extension
of Maturity Date.


 


(a)          First
Extension Option. Borrower shall have the option (the “First Extension Option”) to extend the Initial Maturity
Date to the First Extended Maturity Date upon satisfaction of the following conditions precedent which must be satisfied prior
to the Initial Maturity Date:


 


(i)          Extension
Request. Borrower shall deliver written notice of such request (the “First Extension Request”) to Administrative
Agent not later than the date which is sixty (60) days prior to the Initial Maturity Date;


 


(ii)         Payment
of the Extension Fee. Borrower shall pay to Administrative Agent an extension fee for such extension in the amount of Ninety-Five
Thousand Three Hundred Twenty-Five and No/100 Dollars ($95,325.00);


 


(iii)        No
Default. On the date the First Extension Request is submitted and on the Initial Maturity Date, there shall exist no Unmatured
Default or Event of Default;





 


(iv)        DSCR.
As of the date of the First Extension Request, the Project has achieved a Debt Service Coverage Ratio of not less than 1.15 to
1.0;


 


(v)         Loan
to Value. The aggregate Commitment of the Lenders shall not exceed seventy percent (70%) loan-to-value ratio on an “as-is”
basis as determined by Administrative Agent based upon an appraisal satisfactory to Administrative Agent, at Borrower’s cost
(which appraisal shall be a then current appraisal, at Borrower’s cost, if required by Administrative Agent);


 






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(vi)        Completion
of Project. At the time of the First Extension Request, (i) the lien-free full completion of the Work and the construction
of the Improvements shall have been completed in a manner acceptable to Administrative Agent acting in good faith, in accordance
with the Loan Documents and the Construction Schedule, and substantially in accordance with the Plans and Specifications; and (ii)
a final certificate of occupancy with respect to the Project shall have been issued by the applicable governmental authority. For
the purposes of this provision, the completion of the Work and the construction of the Improvements shall be deemed to occur only
at such time as Administrative Agent has received the following: (A) a certificate of completion from the Architect attesting to
final completion of the Work, (B) a certificate of occupancy for the Project, and (C) construction date-down and interim mechanics’
lien endorsements to the Title Policy.


 


(vii)       Compliance
Certificate; Financial Statements. Borrower shall have delivered to Administrative Agent (i) a Compliance Certificate executed
by Borrower which shall be certified by Borrower as fairly and accurately presenting the information contained therein, (ii) compliance
certificates in such form and content as may be reasonably required by Administrative Agent from each of the parties that comprise
Guarantor as required under the Loan Agreement to confirm their collective compliance with the liquidity and net worth covenants
in Section 11 of the Guaranty and (iii) current financial statements regarding Borrower and each Guarantor (dated not earlier than
thirty (30) days prior to the First Extension Request) and all other financial statements and other information as may be required
under the Loan Documents regarding Borrower, each Guarantor and the Property, and there shall not have occurred, in the reasonable
opinion of Administrative Agent, any Material Adverse Occurrence or any event or condition which materially adversely affects the
financial condition or operations of the Property or any material adverse change in any other state of facts submitted to Administrative
Agent or any of the Lenders in connection with the Loan Documents, from that which existed on the date of this Agreement;


 


(viii)      Costs
and Expenses. Whether or not the extension becomes effective, Borrower shall pay all actual out-of-pocket costs and expenses
incurred by Administrative Agent and the Lenders in connection with the proposed extension (pre- and post-closing), including,
without limitation, appraisal fees, environmental audit and legal fees; all such costs and expenses incurred up to the time of
Administrative Agent’s written agreement to the extension shall be due and payable prior to Administrative Agent’s
execution of that agreement (or if the proposed extension does not become effective, then upon demand by Administrative Agent),
and any future failure to pay such amounts shall constitute an Event of Default under the Loan Documents ;





 


(ix)         Regulatory
Requirements. All applicable regulatory requirements, including appraisal requirements, shall have been satisfied with respect
to the extension; and


 






    24 


     

    

 


(x)          Additional
Documents; Searches. Not later than the Initial Maturity Date, (A) the extension shall have been consented to and documented
to Administrative Agent’s reasonable satisfaction by Borrower, each Guarantor, Administrative Agent, and all other parties
deemed reasonably necessary by Administrative Agent; (B) Administrative Agent shall have been provided with such information
as Administrative Agent shall reasonably require to confirm that the parties comprising Guarantor collectively have minimum liquidity
of at least Ten Million and No/100 Dollars ($10,000,000.00) and minimum net worth of at least Twenty Million and No/100 Dollars
($20,000,000.00); and (C) Administrative Agent shall have been provided with updated title report and judgment and lien searches,
and appropriate title insurance endorsements shall have been issued as reasonably required by Administrative Agent.


 


(b)          Second
Extension Option. Borrower shall have the option (the “Second Extension Option”) to extend the first Extended
Maturity Date to the Second Extended Maturity Date upon satisfaction of the following conditions precedent which must be satisfied
prior to the First Extended Maturity Date:


 


(i)          Extension
Request. Borrower shall deliver written notice of such request (the “Second Extension Request”) to Administrative
Agent not later than the date which is sixty (60) days prior to the First Extended Maturity Date;


 


(ii)         Payment
of the Extension Fee. Borrower shall pay to Administrative Agent an extension fee for such extension, in the amount Ninety-Five
Thousand Three Hundred Twenty-Five and No/100 Dollars ($95,325.00);


 


(iii)        No
Default. On the date the Second Extension Request is submitted and on the First Extended Maturity Date, there shall exist no
Unmatured Default or Event of Default;


 


(iv)        DSCR.
The Project has achieved (as of the date of the Second Extension Request) a Debt Service Coverage Ratio of not less than 1.25 to
1.0;


 


(v)         Loan
to Value. The aggregate Commitment of the Lenders shall not exceed seventy percent (70%) loan-to-value ratio on an “as
stabilized” basis as determined by Administrative Agent based upon an appraisal reasonably satisfactory to Administrative
Agent, at Borrower’s cost (which appraisal shall be a then current appraisal, at Borrower’s cost, if required by Administrative
Agent);


 


(vi)        Compliance
Certificate; Financial Statements. Borrower shall have delivered to Administrative Agent (i) a Compliance Certificate executed
by Borrower which shall be certified by Borrower as fairly and accurately presenting the information contained therein, (ii) compliance
certificates in such form and content as may be reasonably required by Administrative Agent from each of the parties that comprise
Guarantor as required under the Loan Agreement to confirm their collective compliance with the liquidity and net worth covenants
in Section 11 of the Guaranty and (iii) current financial statements regarding Borrower and each Guarantor (dated not earlier than
thirty (30) days prior to the Second Extension Request) and all other financial statements and other information as may be required
under the Loan Documents regarding Borrower, each Guarantor and the Property, and there shall not have occurred, in the reasonable
opinion of Administrative Agent, any Material Adverse Occurrence or any event or condition which materially adversely affects the
financial condition or operations of the Property or any material adverse change in any other state of facts submitted to Administrative
Agent or any of the Lenders in connection with the Loan Documents, from that which existed on the date of this Agreement;


 






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(vii)       Costs
and Expenses. Whether or not the extension becomes effective, Borrower shall pay all actual out-of-pocket costs and expenses
incurred by Administrative Agent and the Lenders in connection with the proposed extension (pre- and post-closing), including,
without limitation, appraisal fees, environmental audit and legal fees; all such costs and expenses incurred up to the time of
Administrative Agent’s written agreement to the extension shall be due and payable prior to Administrative Agent’s
execution of that agreement (or if the proposed extension does not become effective, then upon demand by Administrative Agent),
and any future failure to pay such amounts shall constitute an Event of Default under the Loan Documents ;


 


(viii)      Regulatory
Requirements. All applicable regulatory requirements, including appraisal requirements, shall have been satisfied with respect
to the extension; and


 


(ix)         Additional
Documents; Searches. Not later than the First Extended Maturity Date, (A) the extension shall have been consented to and documented
to Administrative Agent’s reasonable satisfaction by Borrower, each Guarantor, Administrative Agent, and all other parties
deemed reasonably necessary by Administrative Agent; (B) Administrative Agent shall have been provided with such information
as Administrative Agent shall reasonably require to confirm that the parties comprising Guarantor collectively have minimum liquidity
of at least Ten Million and No/100 Dollars ($10,000,000.00) and minimum net worth of at least Twenty Million and No/100 Dollars
($20,000,000.00); and (C) Administrative Agent shall have been provided with an updated title report and judgment and lien searches,
and appropriate title insurance endorsements shall have been issued as reasonably required by Administrative Agent.


 


(x)          First
Extension. Borrower shall have extended the Initial Maturity Date to the First Extended Maturity Date in accordance with the
terms and provisions of Section 3.5(a) above.


 






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3.6.         Payments,
Fees and Other General Provisions.





 


(a)          Payments
by Borrower. Except to the extent otherwise provided herein, all payments of principal, interest and other amounts to be made
by Borrower under this Agreement or any other Loan Document shall be made in Dollars, in immediately available funds, without deduction,
set-off or counterclaim, to Administrative Agent at its Principal Office, not later than 2:00 p.m. on the date on which such payment
shall become due (each such payment made after such time on such due date to be deemed to have been made on the next succeeding
Business Day). Subject to Section 3.6(b) and Section 3.6(d), Administrative Agent on behalf of the Lenders, may (but shall not
be obligated to) debit the amount of any such payment which is not made by such time from any special or general deposit account
of Borrower with Administrative Agent. Borrower shall, at the time of making each payment under this Agreement or any Note, specify
to Administrative Agent the amounts payable by Borrower hereunder to which such payment is to be applied. Each payment received
by Administrative Agent for the account of a Lender under this Agreement or any Note shall be paid to such Lender as provided by
separate wiring instructions from such Lender no later than one (1) Business Day after receipt. If Administrative Agent fails to
pay such amount to a Lender as provided in the previous sentence, Administrative Agent shall pay interest on such amount until
paid at a rate per annum equal to the Federal Funds Rate from time to time in effect. If the due date of any payment under this
Agreement or any other Loan Document would otherwise fall on a day which is not a Business Day such date shall be extended to the
next succeeding Business Day and interest shall be payable for the period of such extension. If a court of competent jurisdiction
shall adjudge that any amount received and distributed by Administrative Agent is to be repaid, each Person to whom any such distribution
shall have been made shall either repay to Administrative Agent its proportionate share of the amount so adjudged to be repaid
or shall pay over the same in such manner and to such Persons as shall be determined by such court.


 


(b)          Pro
Rata Treatment. Except to the extent otherwise provided herein: (i) each borrowing from the Lenders under Section 3.1
shall be made from the Lenders, (ii) each payment of the fees under Section 3.1(e) shall be made for the account of
the Lenders, pro rata according to the amounts of their respective Commitments; (iii) each payment or prepayment of principal of
Loans by Borrower shall be made for the account of the Lenders pro rata in accordance with the respective unpaid principal amounts
of the Loans held by them, provided that if immediately prior to giving effect to any such payment in respect of any Loans the
outstanding principal amount of the Loans shall not be held by the Lenders pro rata in accordance with their respective Commitments
in effect at the time such Loans were made, then such payment shall be applied to the Loans in such manner as shall result, as
nearly as is practicable, in the outstanding principal amount of the Loans being held by the Lenders pro rata in accordance with
their respective Commitments; (iv) each payment of interest on Loans by Borrower shall be made for the account of the Lenders pro
rata in accordance with the amount of interest on such Loans then due and payable to the respective Lenders; (v) the making and
Continuation of Loans of a particular Type (other than Conversions provided for by Section 3.9(f)) shall be made pro rata
among the Lenders according to the amounts of their respective Commitments (in the case of making of Loans) or their respective
Loans (in the case of Continuations of Loans) and the then current Interest Period for each Lender’s portion of each Loan
of such Type shall be coterminous; and (vi) the Lenders’ participation in, and payment obligations in respect of, Loans under
Section 3.1, shall be in accordance with their respective Commitments. All payments of principal, interest, fees and other
amounts in respect of the Loans shall be for the account of the Lenders.


 




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(c)          Advances
by Administrative Agent. Unless Administrative Agent shall have been notified by any Lender prior to the specified date of
borrowing that such Lender does not intend to make available to Administrative Agent the Loan to be made by such Lender on such
date, Administrative Agent may assume that such Lender will make the proceeds of such Loan available to Administrative Agent on
the date of the requested borrowing and Administrative Agent may (but shall not be obligated to), in reliance upon such assumption,
make available to Borrower the amount of such Loan to be provided by such Lender and such Lender shall be liable to Administrative
Agent for the amount of such advance. Notwithstanding the preceding sentence, if Administrative Agent elects to make available
to Borrower the amount of such Loan to be provided by such Lender before Administrative Agent has received the funds to
be provided by such Lender, Administrative Agent agrees not to do so without Borrower’s consent. If, with Borrower’s
consent, Administrative Agent makes available to Borrower the amount of such Loan to be provided by such Lender before Administrative
Agent has received the funds to be provided by such Lender and then such Lender does not pay such corresponding amount upon Administrative
Agent’s demand therefor, Administrative Agent will promptly notify Borrower, and Borrower shall promptly pay such corresponding
amount to Administrative Agent. Administrative Agent shall also be entitled to recover from the Lender or Borrower, as the case
may be, interest on such corresponding amount in respect of each day from the date such corresponding amount was made available
by Administrative Agent to Borrower to the date such corresponding amount is recovered by Administrative Agent at a per annum rate
equal to (i) from Borrower at the applicable rate for such Loan as provided in Section 3.2 or (ii) from a Lender at the
Federal Funds Rate. Subject to the terms of this Agreement, Borrower does not waive any claim that it may have against a Defaulting
Lender. For clarification, the requirement in this Section 3.6(c) for Borrower’s consent in no way affects, reduces or impairs
a Lender’s liability to Administrative Agent if, as permitted by this Section 3.6(c), Administrative Agent makes available
to Borrower the amount of a Loan to be provided by such Lender even if Administrative Agent does so without Borrower’s consent.


 


(d)          Sharing
of Payments, Etc. If a Lender shall obtain payment of any principal of, or interest on, any Loan made by it to Borrower under
this Agreement, or shall obtain payment on any other Obligation owing by Borrower through the exercise of any right of set-off,
banker’s lien or counterclaim or similar right or otherwise or through voluntary prepayments directly to a Lender or other
payments made by Borrower to a Lender not in accordance with the terms of this Agreement and such payment should be distributed
to some or all of the Lenders pro rata in accordance with Section 3.6, such Lender shall promptly purchase from the other
applicable Lenders participations in (or, if and to the extent specified by such Lender, direct interests in) the Loans made by
such other Lenders or other Obligations owed to such other Lenders in such amounts, and make such other adjustments from time to
time as shall be equitable, to the end that all the applicable Lenders shall share the benefit of such payment (net of any reasonable
expenses which may be incurred by such Lender in obtaining or preserving such benefit) pro rata in accordance with Section 3.6.
To such end, all the applicable Lenders shall make appropriate adjustments among themselves (by the resale of participations sold
or otherwise) if such payment is rescinded or must otherwise be restored. Borrower agrees that any Lender so purchasing a participation
(or direct interest) in the Loans or other Obligations owed to such other Lenders may exercise all rights of set-off, banker’s
lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans
in the amount of such participation. Nothing contained herein shall require any Lender to exercise any such right or shall affect
the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other indebtedness
or obligation of Borrower.


 


(e)          Several
Obligations. No Lender shall be responsible for the failure of any other Lender to make a Loan or to perform any other obligation
to be made or performed by such other Lender hereunder, and the failure of any Lender to make a Loan or to perform any other obligation
to be made or performed by it hereunder shall not relieve the obligation of any other Lender to make any Loan or to perform any
other obligation to be made or performed by such other Lender.


 






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3.7.         Defaulting
Lenders.


 


(a)          Generally.
If for any reason any Lender (a “Defaulting Lender”) shall fail or refuse to perform any of its obligations
under this Agreement or any other Loan Document to which it is a party within the time period specified for performance of such
obligation or, if no time period is specified, if such failure or refusal continues for a period of two (2) Business Days after
notice from Administrative Agent, then, in addition to the rights and remedies that may be available to Administrative Agent, Borrower
or Lenders under this Agreement or Applicable Law, such Defaulting Lender’s right to participate in the administration of
the Loans, this Agreement and the other Loan Documents, including without limitation, any right to vote in respect of, to consent
to or to direct any action or inaction of Administrative Agent or to be taken into account in the calculation of all of the Lenders
or the Requisite Lenders, shall be suspended during the pendency of such failure or refusal. If a Lender is a Defaulting Lender
because it has failed to make timely payment to Administrative Agent of any amount required to be paid to Administrative Agent
hereunder, in addition to the other rights and remedies which Administrative Agent, Borrower or Lenders may have under the immediately
preceding provisions or otherwise, Administrative Agent shall be entitled (i) to collect interest from such Defaulting Lender on
such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at
the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest,
any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document, and (iii) to bring an
action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and any related
interest. Any amounts received by Administrative Agent in respect of a Defaulting Lender’s Loans shall not be paid to such
Defaulting Lender and shall be held uninvested by Administrative Agent and either applied against the purchase price of such Loans
under Section 3.7(b) or paid to such Defaulting Lender upon the Defaulting Lender’s curing of its default.


 





 






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(b)          Purchase
or Cancellation of Defaulting Lender’s Commitment. Promptly after any Lender becomes a Defaulting Lender, Administrative
Agent shall deliver notice (“Default Notice”) of same to the other Lenders and Borrower. Any Lender who is not
a Defaulting Lender shall have the right, but not the obligation, in its sole discretion, to acquire all of a Defaulting Lender’s
Commitment as set forth in this Section 3.7(b). Any Lender desiring to exercise such right shall give written notice (“Purchase
Notice”) thereof to Administrative Agent, such Defaulting Lender, the other Lenders and Borrower no sooner than two (2)
Business Days and not later than fifteen (15) Business Days after Lenders receive the Default Notice and Defaulting Lender shall
have an additional two (2) Business Days after receipt of the Purchase Notice to cure its default prior to Lender exercising such
purchase right. If more than one Lender exercises such right resulting in greater funds than are necessary, the amount funded by
each such Lender shall be reduced if necessary such that each purchasing Lender’s amount funded is in proportion to the Commitments
of the other Lenders exercising such right (calculated without regard to the Commitments of the Defaulting Lender and any other
Lender who has not elected to fund). If after such fifteenth (15th) Business Day, the Lenders have not elected to purchase all
of the Commitment of such Defaulting Lender and Defaulting Lender has not cured its default, then Borrower may, by giving written
notice thereof to Administrative Agent, such Defaulting Lender and the other Lenders, either (i) demand that such Defaulting Lender
assign its Commitment to an Eligible Assignee approved by Administrative Agent (such approval not to be unreasonably withheld or
delayed) subject to and in accordance with the provisions of Section 10.11(c) for the purchase price provided for below or (ii)
terminate the Commitment of such Defaulting Lender, whereupon such Defaulting Lender shall no longer be a party hereto or have
any rights or obligations hereunder or under any of the other Loan Documents (except as expressly provided in this Section 3.7(b))
provided that Defaulting Lender shall have an additional two (2) Business Days after receipt of such termination notice from Borrower
to cure its default. Administrative Agent shall provide commercially reasonable assistance to Borrower in finding an Eligible Assignee,
but Administrative Agent shall not be in default hereunder or have any liability to Borrower or otherwise if an Eligible Assignee
is not located, and neither Administrative Agent nor any Lender shall have any obligation whatsoever to fund any portion of the
terminated commitment. Upon any such purchase or assignment, the Defaulting Lender’s interest in the Loans and its rights
hereunder (but not its liability in respect thereof or under the Loan Documents or this Agreement to the extent the same relate
to the period prior to the effective date of the purchase) shall terminate on the date of purchase, and the Defaulting Lender shall
promptly execute all documents reasonably requested to surrender and transfer such interest to the purchaser or assignee thereof,
including an appropriate Assignment and Acceptance Agreement and, notwithstanding Section 10.11(c), shall pay to Administrative
Agent an assignment fee in the amount of Three Thousand Five Hundred Dollars ($3,500.00). The purchase price for the Commitment
of a Defaulting Lender shall be equal to the amount of the Principal Balance of the Loans outstanding and owed by Borrower to the
Defaulting Lender. Prior to payment of such purchase price to a Defaulting Lender, Administrative Agent shall (i) be entitled to
retain any amount from the purchase price that is due Administrative Agent from such Defaulting Lender hereunder and (ii) apply
against such purchase price (as a credit to the purchaser) any amounts retained by Administrative Agent that Administrative Agent
shall pay to such Defaulting Lender upon the closing of the purchase. The Defaulting Lender shall be entitled to receive amounts
owed to it by Borrower under the Loan Documents which accrued prior to the date of the default by the Defaulting Lender, to the
extent the same are received by Administrative Agent from or on behalf of Borrower. There shall be no recourse against any Lender
or Administrative Agent for the payment of such sums except to the extent of the receipt of payments from any other party or in
respect of the Loans.


 


3.8.         Taxes.


 


(a)          Taxes
Generally. All payments by Borrower of principal of, and interest on, the Loans shall be made free and clear of and without
deduction for any present or future excise, stamp or other taxes, fees, duties, levies, imposts, charges, deductions, withholdings
or other charges of any nature whatsoever imposed by any taxing authority, but excluding (x) franchise taxes, and (y) any taxes
imposed on or measured by any Lender’s assets, net income, receipts or branch profits (such non-excluded items being collectively
called “Taxes”). If any withholding or deduction from any payment to be made by Borrower hereunder is required
in respect of any Taxes pursuant to any Applicable Law, then Borrower will:


 






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(i) pay directly
to the relevant Governmental Authority the full amount required to be so withheld or deducted;


 


(ii) promptly
forward to Administrative Agent an official receipt or other documentation satisfactory to Administrative Agent evidencing such
payment to such Governmental Authority, upon receipt of request therefor; and


 


(iii) pay to
Administrative Agent for its account or the account of the applicable Lender, as the case may be, such additional amount or amounts
as is necessary to ensure that the net amount actually received by Administrative Agent or such Lender will equal the full amount
that Administrative Agent or such Lender would have received had no such withholding or deduction been required.


 


(b)          Tax
Indemnification. If Borrower fails to pay any Taxes when due to the appropriate Governmental Authority or fails to remit to Administrative
Agent, for its account or the account of the respective Lender, as the case may be, the required receipts or other required documentary
evidence, Borrower shall indemnify Administrative Agent and the Lenders for any incremental Taxes, interest or penalties that may
become payable by Administrative Agent or any Lender as a result of any such failure. For purposes of this Section 3.8(b), a distribution
hereunder by Administrative Agent or any Lender to or for the account of any Lender shall be deemed a payment by Borrower.


 


(c)          Tax
Forms. Prior to the date that any Lender or Participant organized under the laws of a jurisdiction outside the United States
of America becomes a party hereto, such Person shall deliver to Borrower and Administrative Agent (but only so long as such Lender
or Participant is or remains lawfully able to do so) such certificates, documents or other evidence, as required by the Internal
Revenue Code or Treasury Regulations issued pursuant thereto, properly completed, currently effective and duly executed by such
Lender or Participant indicating whether payments to it hereunder and under the Notes are (i) not subject to United States Federal
backup withholding tax or (ii) not subject to United States Federal withholding tax under the Internal Revenue Code because
such payment is either effectively connected with the conduct by such Lender or Participant of a trade or business in the United
States or totally exempt from United States Federal withholding tax by reason of the application of the provisions of a treaty
to which the United States is a party or such Lender is otherwise wholly exempt; provided that nothing herein (including, without
limitation, the failure or inability to provide any of such certificates, documents or other evidence) shall relieve Borrower of
its obligations under this Section 3.8. In addition, any such Lender or Participant shall deliver to Borrower and Administrative
Agent (but only so long as such Lender or Participant is or remains lawfully able to do so) further copies of any such certificate,
document or other evidence on or before the date that any such certificate, document or other evidence expires or becomes obsolete.


 




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3.9.         Yield
Protection, etc.


 


(a)          Additional
Costs; Capital Adequacy.


 


(i)          Additional
Costs. Borrower shall promptly pay to Administrative Agent for the account of a Lender from time to time such amounts as such
Lender may reasonably and in good faith determine to be necessary to reimburse such Lender for any costs incurred by such Lender
that are not reasonably attributable to any act or failure on the part of Administrative Agent or any Lender and that it reasonably
and in good faith determines are attributable to its making or maintaining of any LIBOR Rate Loans or its obligation to make any
LIBOR Rate Loans hereunder, any reduction in any amount receivable by such Lender under this Agreement or any of the other Loan
Documents in respect of any of such Loans or such obligation or the maintenance by such Lender of capital in respect of its Loans
or its Commitment (such increases in costs and reductions in amounts receivable being herein called “Additional Costs”),
resulting from any Regulatory Change that: (i) materially changes the basis of taxation of any amounts payable to such Lender under
this Agreement or any of the other Loan Documents in respect of any of such Loans or its Commitment (other than taxes which are
excluded from the definition of Taxes pursuant to the first sentence of Section 3.8(a)); or (ii) imposes or modifies
any reserve, special deposit or similar requirements (other than Regulation D of the Board of Governors of the Federal Reserve
System or other reserve requirement to the extent utilized in the determination of the Adjusted LIBOR Rate for such Loan) relating
to-any extensions of credit or other assets of, or any deposits with or other liabilities of, such Lender, or any commitment of
such Lender (including, without limitation, the Commitments of such Lender hereunder); or (iii) has or would have the effect of
reducing the rate of return on capital of such Lender to a level below that which such Lender could have achieved but for such
Regulatory Change (taking into consideration such Lender’s policies with respect to capital adequacy).


 


(ii)         Lender’s
Suspension of LIBOR Rate Loans. Without limiting the effect of the provisions of Section 3.8(a), if, by reason of any
Regulatory Change, any Lender either (i) incurs Additional Costs based on or measured by the excess above a specified level of
the amount of a category of deposits or other liabilities of such Lender that includes deposits by reference to which the interest
rate on LIBOR Rate Loans is determined as provided in this Agreement or a category of extensions of credit or other assets of such
Lender that includes LIBOR Rate Loans or (ii) becomes subject to restrictions on the amount of such a category of liabilities or
assets that it may hold, then, if such Lender so elects by notice to Borrower (with a copy to Administrative Agent), the obligation
of such Lender to make or Continue LIBOR Rate Loans hereunder shall be suspended until such Regulatory Change ceases to be in effect
(in which case the provisions of Section 3.9(f) shall apply).


 


(iii)        Notification
and Determination of Additional Costs. Each of Administrative Agent and each Lender agrees to notify Borrower of any event
occurring after the date of this Agreement entitling Administrative Agent or such Lender to reimbursements under any of the preceding
subsections of this Section 3.9(a) as promptly as practicable; provided, however, the failure of Administrative Agent or
any Lender to give such notice shall not release Borrower from any of its obligations hereunder; provided, however, that notwithstanding
the foregoing provisions of this Section 3.9(a)(iii), Administrative Agent or a Lender, as the case may be, shall not be
entitled to reimbursement for any such amount relating to any period ending more than six (6) months prior to the date that Administrative
Agent or such Lender, as applicable, first notifies Borrower in writing thereof. Administrative Agent and or such Lender agrees
to furnish to Borrower a certificate setting forth the basis and amount of each request by Administrative Agent or such Lender
for reimbursement under this Section 3.9(a)(iii). Absent manifest error, determinations by Administrative Agent or any Lender
of the effect of any Regulatory Change shall be conclusive, provided that such determinations are made on a reasonable basis and
in good faith.


 






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(b)          Suspension
of LIBOR Rate Loans. Anything herein to the contrary notwithstanding, if, on or prior to the determination of any Adjusted
LIBOR Rate for any Interest Period:


 


(i)          Administrative
Agent reasonably determines (which determination shall be conclusive) that by reason of circumstances affecting the relevant market,
adequate and reasonable means do not exist for ascertaining the Adjusted LIBOR Rate for such Interest Period, or


 


(ii)         Administrative
Agent reasonably determines (which determination shall be conclusive) that the Adjusted LIBOR Rate as determined by Administrative
Agent will not adequately and fairly reflect the cost to the Lenders of making or maintaining LIBOR Rate Loans for such Interest
Period;


 


then Administrative Agent shall give Borrower
and each Lender prompt notice thereof and, so long as such condition remains in effect, the Lenders shall be under no obligation
to, and shall not, make additional LIBOR Rate Loans or Continue LIBOR Rate Loans and Borrower shall, on the last day of each current
Interest Period for each outstanding LIBOR Rate Loan, either repay such Loan or Convert such Loan into a Base Rate Loan.


 


(c)          Illegality.
Notwithstanding any other provision of this Agreement, if it becomes unlawful for any Lender to honor its obligation to make or
maintain LIBOR Rate Loans hereunder, then such Lender shall promptly notify Borrower thereof (with a copy to Administrative Agent)
and such Lender’s obligation to make or Continue Loans of any other Type into, LIBOR Rate Loans shall be suspended until
such time as such Lender may again make and maintain LIBOR Rate Loans (in which case the provisions of Section 3.9(f) shall
be applicable).


 


(d)          Compensation.
Borrower shall pay to Administrative Agent for the account of each Lender, upon the request of such Lender through Administrative
Agent, such amount or amounts as shall be sufficient (in the reasonable opinion of such Lender) to reimburse it for any loss, cost
or expense, that is not reasonably attributable to any act or failure on the part of Administrative Agent or any Lender, that such
Lender has incurred and reasonably and in good faith determines is attributable to:


 





(i)          any
payment or prepayment (whether mandatory or optional) of a LIBOR Rate Loan, or Conversion of a LIBOR Rate Loan, made by such Lender
for any reason (including, without limitation, acceleration) on a date other than the last day of the Interest Period for such
Loan; or


 






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(ii)         any
failure by Borrower for any reason, not reasonably attributable to any act or failure on the part of Administrative Agent or any
Lender (including, without limitation, the failure of any of the applicable conditions precedent specified in Section 5.1 to
be satisfied), to borrow a LIBOR Rate Loan from such Lender on the date for such borrowing, or Continue a LIBOR Rate Loan on the
requested date of such Continuation.


 


Upon Borrower’s request,
any Lender requesting reimbursement under this Section 3.9(d) shall provide Borrower with a statement setting forth the
basis for requesting such reimbursement and the method for determining the amount thereof along with written evidence in support
thereof. Each Lender may use any reasonable averaging and attribution methods generally applied by such Lender, and absent manifest
error, determinations by any Lender in any such statement shall be conclusive, provided that such determinations are made on a
reasonable basis and in good faith.


 


(e)          Affected
Lenders. If (i) a Lender requests reimbursement pursuant to Section 3.8 or Section 3.9(a), and the Requisite
Lenders are not also doing the same, or (ii) the obligation of any Lender to make LIBOR Rate Loans or to Continue LIBOR Rate
Loans shall be suspended pursuant to Section 3.9(a)(ii) or Section 3.9(c), but the obligation of the Requisite Lenders
shall not have been suspended under such Sections, then, so long as there does not then exist any Unmatured Default or Event of
Default, Borrower, within thirty (30) days of such request for reimbursement or suspension, as applicable, may either (x) demand
that each Lender consent to the assignment of the Loans of such Lender (the “Affected Lender”) to an Eligible
Assignee, and upon such demand the Affected Lender shall promptly, assign its Commitments to an Eligible Assignee subject to and
in accordance with the provisions of Section 10.11(c)10.11(b) for a purchase price equal to the aggregate principal balance
of Loans then owing to the Affected Lender plus any accrued but unpaid interest thereon and accrued but unpaid fees owing to the
Affected Lender, or (y) pay to the Affected Lender the aggregate principal balance of Loans then owing to the Affected Lender plus
any accrued but unpaid interest thereon and accrued but unpaid fees owing to the Affected Lender, whereupon the Affected Lender
shall no longer be a party hereto or have any rights or obligations hereunder or under any of the other Loan Documents. Each of
Administrative Agent and the Affected Lender shall reasonably cooperate in effectuating the replacement of such Affected Lender
under this Section 3.9(e) but at no time shall Administrative Agent, such Affected Lender nor any other Lender be obligated
in any way whatsoever to initiate any such replacement or to assist in finding an Eligible Assignee. The exercise by Borrower of
its rights under this Section 3.9(e)3.9(e) shall be at Borrower’s sole cost and expense and at no cost or expense
to Administrative Agent, the Affected Lender or any of the other Lenders. The terms of this Section 3.9(e) shall not in
any way limit Borrower’s obligation to pay to any Affected Lender reimbursement owing to such Affected Lender pursuant to
Section 3.8, Section 3.9(a) or Section 3.9(d).


 


(f)          Treatment
of Affected Loans. If the obligation of any Lender to make LIBOR Rate Loans or to Continue LIBOR Rate Loans shall be suspended
pursuant to Section 3.9(a)(ii), Section 3.9(b) or Section 3.9(b), then such Lender’s LIBOR Rate Loans
shall be automatically Converted into Base Rate Loans on the last day(s) of the then current Interest Period(s) for LIBOR Rate
Loans (or, in the case of a Conversion required by Section 3.9(a)(ii) or Section 3.9(b), on such earlier date as
such Lender may specify to Borrower with a copy to Administrative Agent) and, unless and until such Lender gives notice as provided
below that the circumstances specified in Section 3.9(a) or Section 3.9(b) that gave rise to such Conversion
no longer exist:


 






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(i)          to
the extent that such Lender’s LIBOR Rate Loans have been so Converted, all payments and prepayments of principal that would
otherwise be applied to such Lender’s LIBOR Rate Loans shall be applied instead to its Base Rate Loans; and


 


(ii)         all
Loans that would otherwise be made or Continued by such Lender as LIBOR Rate Loans shall be made or Continued instead as Base Rate
Loans.


 


If such Lender gives notice to
Borrower (with a copy to Administrative Agent) that the circumstances specified in Section 3.9(a) or Section 3.9(b)
that gave rise to the Conversion of such Lender’s LIBOR Rate Loans pursuant to this Section 3.9(f) no longer exist
(which such Lender agrees to do promptly upon such circumstances ceasing to exist) at a time when LIBOR Rate Loans made by other
Lenders are outstanding, then such Lender’s Loans that are Base Rate Loans shall be automatically Converted, on the first
day(s) of the next succeeding Interest Period(s) for such outstanding LIBOR Rate Loans, to the extent necessary so that, after
giving effect thereto, all Loans held by the Lenders holding LIBOR Rate Loans and by such Lender are held pro rata (as to principal
amounts, Types and Interest Periods) in accordance with their respective Commitments.


 


(g)          Change
of Lending Office. Each Lender agrees that it shall designate an alternate Lending Office with respect to any of its Loans
affected by the matters or circumstances described in Section 3.8, Section 3.9(a) or Section 3.9(c) to reduce the liability of
Borrower or avoid the results provided thereunder, so long as such designation is not materially disadvantageous to such Lender
as determined by such Lender in its sole but reasonable discretion, except that such Lender shall have no obligation to designate
a Lending Office located in the United States of America.


 


(h)          Assumptions
Concerning Funding of LIBOR Rate Loans. Calculation of all amounts payable to a Lender under this Section 3 shall be
made as though such Lender had actually funded LIBOR Rate Loans through the purchase of deposits in the relevant market bearing
interest at the rate applicable to such LIBOR Rate Loans in an amount equal to the amount of the LIBOR Rate Loans and having a
maturity comparable to the relevant Interest Period; provided, however, that each Lender may fund each of its LIBOR Rate Loans
in any manner it sees fit (so long as such manner is in accordance with Applicable Law and this Agreement) and the foregoing assumption
shall be used only for calculation of amounts payable under this Section 3.


 


SECTION
4.

CONDITIONS TO LOAN OPENING DATE


 


Prior to the Loan Opening
Date, Borrower shall execute and/or deliver to Administrative Agent the following documents and other items required to be executed
and/or delivered by Borrower, and shall cause to be executed and/or delivered to Administrative Agent the following documents and
other items required to be executed and/or delivered by others, all of which documents and other items shall contain such provisions
as shall be required to conform to this Agreement and otherwise shall be satisfactory in form and substance to Administrative Agent:


 






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4.1.          The
Loan Documents. The Loan Documents.


 


4.2.          Survey.
A plat of survey (“Survey”) of the Real Property made by a land surveyor licensed in the State, showing:


 


(a)          the
proposed location of all foundations, driveways, parking areas, number of parking spaces, fences and other improvements on the
Land including the Project;


 


(b)          the
location (and recording numbers, to the extent recorded) of all visible or recorded easements (including appurtenant easements),
water courses, drains, sewers, public and private roads (including the names and widths thereof and recording numbers for the dedications
thereof), other rights of way, and curb cuts, if any, within, adjacent to or serving the Real Property or to which the Real Property
is subject, and the proposed location of any such easements to be granted; that the same are, and after construction of the Project
and granting of easements will be, unobstructed; and that all portions of the Project will have access to dedicated public roads;


 


(c)          the
location of the servient estate of any easements, if the Land is the dominant estate thereunder;


 


(d)          the
common street address of the Real Property and the dimensions, boundaries and acreage or square footage of the Land;


 


(e)          that
there are no encroachments onto the Land from improvements located on adjoining property;


 


(f)          the
location and course of all utility lines;


 


(g)          if
the Real Property comprises more than one parcel, interior lines and other data sufficient to insure contiguity; and


 


(h)          such
additional information which may be required by Administrative Agent or the Title Company.


 


The Survey shall be
made in accordance with (i) the 2011 survey standards of the American Land Title Association and American Congress on Surveying
and Mapping including items 1, 2, 3, 4, 6(b), 7(a) and (b), 8, 9, 11(a) and (b), of Table A thereof and (ii) the
laws of the State. To the extent that there is any conflict or inconsistency among the Survey standards described above, the more
restrictive standard shall apply. The Survey shall be dated not more than sixty (60) days prior to the date of this Agreement,
and shall bear a proper certificate by the surveyor, which certificate shall recite compliance with the laws and standards enumerated
above, shall include the legal description of the Land and shall run in favor of Borrower, Administrative Agent on behalf of the
Lenders, and the Title Company.











 


4.3.          Insurance.
The certificates of insurance and the policies of insurance as provided in Exhibit G of this Agreement.


 


4.4.          Title
Policy. An ALTA 2006 Loan Policy of Title Insurance (the “Title Policy”) issued by the Title Company in
the full amount of the Notes insuring that the Mortgage will be a first priority lien upon the fee simple title to the Real Property
to the extent of advances of the Loan made by Lenders from time to time under this Agreement, subject to no liens, claims, exceptions
or encumbrances except the Permitted Exceptions and containing the following endorsements:


 






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(a)          Modified
ALTA Broad Form 3.1-06 Zoning Endorsement (in the form modified for construction loans), including coverage for parking and for
loading docks and bays and deleting the marketability limitation, based upon the completion of the Project in accordance with the
Plans and Specifications;


 


(b)          Modified
Comprehensive Endorsement (Endorsement 9.3-06) (in form modified for construction loans);


 


(c)          Access
Endorsement (ALTA Endorsement 17-06);


 


(d)          Survey
Endorsement;


 


(e)          Tax
Parcel Endorsement (ALTA Endorsement 18-06 or 18.1-06 as applicable);


 


(f)          Contiguity
Endorsement, if applicable (ALTA Endorsement 19-06);


 


(g)          Utility
Facilities Endorsement;


 


(h)          Usury
Endorsement;


 


(i)          Full
mechanics lien coverage;


 


(j)          First
Loss Endorsement;


 


(k)          Pending
Disbursement (Future Advance) Endorsement (ALTA Endorsement 14-06); and


 


(l)          Such
additional endorsements as may be reasonably required by Administrative Agent based upon its review of the Title Policy and Survey.


 


4.5.          Title
Documents. Copies of such documents, if any, as Borrower has provided the Title Company in connection with the issuance and
underwriting of the Title Policy.


 


4.6.          Recorded
Documents. Copies of all recorded documents described in the Title Policy.


 


4.7.          Searches.
Current Uniform Commercial Code, federal and state tax lien and judgment searches, pending suit and litigation searches and bankruptcy
court filings searches covering Borrower and Guarantors and disclosing no matters objectionable to Administrative Agent.


 


4.8.          Opinions.
Opinion letters from legal counsel for Borrower and Guarantors (which counsel must be reasonably approved by Administrative Agent
with respect to the issuance of such opinion), opining to the authority of said parties to execute, deliver and perform their respective
obligations under the Loan Documents, to the validity and binding effect and enforceability of the Loan Documents and to such other
matters as Administrative Agent and its counsel shall reasonably require.


 






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4.9.          Geotechnical
Reports. A soil test report prepared by a licensed soil engineer reasonably approved by Administrative Agent and otherwise
reasonably satisfactory in all respects to Administrative Agent containing, among other things, boring logs and the locations of
all borings and confirming that no condition exists with respect to the Land which would cause subsidence of any portion of the
Land and showing that no state of facts exists which would adversely affect the completion of the Work in accordance with the Plans
and Specifications or would require any costs with respect thereto not otherwise provided for in the Budget.


 


4.10.         Flood
Hazards. Evidence that (a) no portion of the Real Property is located in an area designated by the Secretary of Housing and
Urban Development as having special flood hazards, or if any portion of the Real Property is so located, evidence that flood insurance
is in effect; and (b) no portion of the Real Property is located in a federally, state or locally designated wetland or other type
of government protected area.


 


4.11.         Organizational
Documents. Certified copies of (a) Borrower’s, each Guarantor’s and each Signing Entity (if applicable) certificate
of formation or articles of organization, including all amendments thereto; (b) the limited liability company agreement of Borrower,
each Guarantor and each Signing Entity (if applicable), including all amendments thereto; and (c) such documents as Administrative
Agent deems reasonably appropriate evidencing the authority of Borrower, Guarantor and each Signing Entity (if applicable) to borrow
the proceeds of the Loan and execute and deliver this Agreement and the other Loan Documents.


 


4.12.         Environmental
Report. Evidence that the environmental condition of the Property is, and the environmental condition of the Land upon completion
will be satisfactory to Administrative Agent. Such evidence shall include, but shall not be limited to, a Phase I Environmental
Audit certified to Borrower and Administrative Agent, for the benefit of the Lenders, setting forth an asbestos evaluation and
other environmental investigations of the Property and the areas surrounding the Property and information regarding the Property’s
acceptance into the Georgia Brownfields program and any “no further action” letters issued with respect to the Property.
Such testing and investigation shall be performed by an environmental professional reasonably acceptable to Administrative Agent
in a manner satisfactory to Administrative Agent.


 


4.13.         No
Material Adverse Occurrences. Evidence that, as of the date of the Loan Opening, there has been no Material Adverse Occurrence
and there has been no material adverse change in the financial or other projections for the Project, the physical condition of
the Property since the date of the most recent financial statements or projections delivered to Administrative Agent or the most
recent inspections of the condition of the Property made by the Consultant, as the case may be.


 


4.14.         Appraisal.
An MAI appraisal satisfactory to Administrative Agent prepared in accordance with the requirements of FIRREA by a licensed or certified
appraiser acceptable to Administrative Agent showing an appraised value of the Property sufficient to satisfy a seventy percent
(70%) loan-to-value ratio on an “as stabilized” basis of the Property.


 






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4.15.         Leases.
A certified copy of a form Lease for the Property in form and substance reasonably acceptable to Administrative Agent.


 


4.16.         Budget.
The Budget, including a proposed monthly draw schedule.


 


4.17.         Guarantor
Financial Statements. Personal financial statements of each Guarantor on Administrative Agent’s standard form or another
form acceptable to Administrative Agent that shall include a detailed real estate schedule, cash flow statement and a schedule
of contingent liabilities, certified by the applicable Guarantor as fairly and accurately presenting the information contained
therein.


 


4.18.         Required
Equity. Borrower has demonstrated that it has or has already invested in the Project all funds reasonably necessary to satisfy
the Equity Requirements.


 


4.19.         Rate
Management Agreement. If applicable, a fully executed copy of a Rate Management Agreement which contains terms and is in a
form which is satisfactory to Administrative Agent.


 


4.20.         Commitment.
Evidence that in no event shall the maximum aggregate Commitment of the Lenders exceed the lesser of (i) Thirty Eight Million One
Hundred Thirty Thousand and No/100 Dollars ($38,130,000.00); (ii) a seventy percent (70%) loan-to-value ratio on an “as stabilized”
basis based upon an appraisal satisfactory to Administrative Agent; or (iii) a seventy-five percent (75%) loan-to-cost ratio based
upon the Project Costs set forth in the Budget.


 


4.21.         Construction
Schedule. The Construction Schedule.


 


4.22.         Intentionally
deleted.


 


4.23.         Material
Subcontracts. At Administrative Agent’s request, copies of all Material Subcontracts.


 


4.24.         Utilities.
Reasonable evidence that all major utility services for the Project are available at the Real Property.


 


4.25.         Property
Management Contract. A copy of the Property Management Contract for the Property.


 


4.26.         Intentionally
Omitted.


 








4.27.         Plans
and Specifications. Copies of the Plans and Specifications, which have been approved by Borrower and Administrative Agent and
approved and stamped by the appropriate governmental authorities, including detailed descriptions (with drawings and specifications).


 


4.28.         Site
Plan. A copy of the site plan, in form and substance satisfactory to Administrative Agent, showing the proposed location of
the Improvements.


 






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4.29.         Development
Agreement. A copy of the Development Agreement for the Property.


 


4.30.         Bonding.
Reasonable evidence of the issuance of any payment or performance bonds requested by Administrative Agent, any governmental body
or other person related to the Project.


 


4.31.         Consents.
The Architect’s Consent, the Engineer’s Consent, and the Contractor’s Consent.


 


4.32.         Contracts.
Copies of the Construction Contract, the Engineering Contract and the Architectural Contract.


 


4.33.         Subcontracts.
Reasonable evidence that at least eighty-five percent (85%) of the subcontracts to be performed under the Construction Contract
have been fully executed; provided, however, that instead of this Section 4.33 being a requirement to be satisfied prior to the
Loan Opening Date, this Section 4.33 must be satisfied before Borrower may request a Loan Advance.


 


SECTION
5.

DISBURSEMENT OF THE LOAN


 


5.1.          Conditions
Precedent in General. In addition to the other conditions set forth herein, the obligation of Lenders to make the Initial Advance
and each subsequent Loan Advance under this Agreement shall be conditioned upon and subject to the payment to Administrative Agent
of all loan fees then owing from Borrower to Administrative Agent and Lenders and to satisfaction of all of the following conditions:


 


(a)          All
representations and warranties contained in this Agreement and in the other Loan Documents shall be true in all material respects
on and as of the date of such Loan Advance.


 


(b)          Borrower
shall have performed all of its obligations under all Loan Documents which are required to be performed on or prior to the date
of such Loan Advance.


 


(c)          The
cash portion of the Equity Requirement shall have been disbursed (or if the Loan Advance is the Initial Advance, shall be disbursed
simultaneously with such Initial Advance).


 


(d)          Both
before and after giving effect to the Loan Advance, the Loan is In Balance.





 


(e)          There
shall have been no Material Adverse Occurrence to Borrower or any Guarantor since the Loan Opening Date, as reasonably determined
by Administrative Agent.


 


(f)          No
Event of Default shall have occurred that has not been waived in writing by the Requisite Lenders (or all Lenders if so required
by Section 10.12(d)), and no Unmatured Default shall then exist.


 






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(g)          No
litigation or proceedings are pending (including proceedings under Title 11 of the United States Code) against Borrower, any Guarantor,
or the Project, which litigation or proceedings, in the reasonable judgment of Administrative Agent, could constitute a Material
Adverse Occurrence.


 


(h)          Borrower
shall have delivered to Administrative Agent a request for disbursement in the form attached hereto as Exhibit F not more
than ten (10) days prior to the requested Loan Advance, specifying in detail the amount and mode of each Loan Advance and accompanied
by the following, all in form and substance satisfactory to Administrative Agent:


 


(i)          An
owner’s sworn statement and disbursement request;


 


(ii)         An
application for payment and sworn Contractor’s statement from Contractor, and a statement of a duly authorized officer of
Contractor that all items of construction cost have been incorporated into the Project in accordance with the Plans and Specifications,
together with waivers of lien with respect to the current disbursement and all previous disbursements from the Contractor and all
Subcontractors and materialmen to whom payment is to be made, as are required by the Title Company as a condition to issuing the
mechanic’s lien endorsement described in Section 5.1(j);


 


(iii)        Invoices
for all soft costs which are the subject of the Loan Advance;


 


(iv)        A
certificate of the Architect on a form reasonably satisfactory to Administrative Agent;


 


(v)         Building
and other applicable permits issued by the appropriate governmental bodies for all Work for which a Loan Advance is requested;


 


(vi)        An
updated schedule of all Leases entered into by Borrower; and


 


(vii)       Such
other documents, assignments, certificates and opinions as are reasonably required by the Title Company, or as may be reasonably
required by Administrative Agent.


 


(i)          An
inspection report of the Consultant certifying the percentages of completion of the components of the Work and setting forth the
amount authorized for disbursement and such other matters as Administrative Agent may reasonably require (including compliance
with the Plans and Specifications and the Construction Schedule).


 


(j)          Administrative
Agent shall be satisfied as to the continuing accuracy of the Budget.


 


(k)          Upon
the disbursement of the Loan Advance, an endorsement to the Title Policy shall be issued by the Title Company, updating the same
to the date of such Loan Advance and increasing the amount of coverage (including mechanics lien coverage) thereunder to the Principal
Balance (taking into account the then current Loan Advance), and insuring the lien of the Mortgage to be superior to all defects
in title other than the Permitted Exceptions and other exceptions approved by Administrative Agent in writing after the Loan opening.
No Loan Advance shall be made until Borrower furnishes Administrative Agent with a mechanic’s lien endorsement for such Loan
Advance.


 






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(l)          If
such Loan Advance is to be made in whole or in part for materials purchased by Borrower but not yet installed or incorporated into
the Project, (i) Administrative Agent shall be reasonably satisfied with the conditions under which such materials are purchased
and stored, (ii) the materials involved shall have been delivered to the Land or stored with a bonded warehouseman, with satisfactory
evidence of security, insurance both during storage and transit and suitable storage, (iii) a copy of a bill of sale or other evidence
of title in Borrower, together with a copy of UCC searches against Borrower and the warehouseman, if applicable, indicating no
liens or claims which may affect such materials shall have been delivered to Administrative Agent and (iv) Borrower shall have
provided Administrative Agent, any architect and any applicable governmental agency or testing authority having jurisdiction over
the Project with access to inspect, test or otherwise examine such stored and unincorporated materials.


 


(m)          If
requested by Administrative Agent, within thirty (30) days subsequent to the completion of the foundation of the Project, the Survey
shall be updated to show the location of such foundation, that such foundation is within all applicable lot, side, rear and set-back
lines; and that there are no encroachments by the improvements over easements or adjoining property.


 


(n)          If
requested by Administrative Agent, within thirty (30) days subsequent to the completion of the exterior walls and roof of the Project,
the Survey shall be updated to show the Building “as built” and to show the location of all utilities and any additional
easements or other matters of record affecting the Project.


 


5.2.          Amount
of Disbursements; Retainage. Subject to the other conditions and limitations set forth herein, the amount of each disbursement
shall be the amount requested by Borrower; provided, however, that (a) Administrative Agent, on behalf of the Lenders, shall have
the right to retain ten percent (10%) of each item of Project Costs pertaining to materials and labor (as delineated and described
in the Construction Contract), until the Project is fifty percent (50%) complete after which there shall no further Retainage shall
be retained. This Retainage shall be disbursed in accordance with the provisions of Section 5.5, and (b) in no event shall
Lenders be obligated to disburse for any item an amount in excess of the amount allocated for such item pursuant to the Budget,
including any Reserve set aside specifically for such item as provided in Section 3.1(b).


 


5.3.          Certifications,
Representations and Warranties. Each request for a Loan Advance by Borrower shall constitute (a) Borrower’s certification
that the representations and warranties contained in Section 6 below are true and correct in all material respects as of
the date of such request, (b) Borrower’s certification that Borrower is in compliance with the conditions contained in this
Section 5, and (c) Borrower’s representation and warranty to Administrative Agent, with respect to the Work, materials
and other items for which payment is requested that (i) such Work and materials for which Loan proceeds were previously disbursed
have been incorporated into the Project (or otherwise satisfy the terms and conditions of Section 5.1(l) hereof), free
and clear of liens, claims and encumbrances, (ii) the value thereof is as estimated therein, (iii) such Work and materials substantially
conform to the Plans and Specifications, this Agreement and all Applicable Laws, and (iv) the requisitioned value of such Work
and materials and the amounts of all other items of cost for which payment is requested by Borrower have theretofore been in fact
paid for in cash by Borrower or the same are then due and owing by Borrower and will in fact be paid in cash by Borrower within
ten (10) days after Borrower’s receipt of the requested Loan Advance. Neither review nor approval by Administrative Agent
of requests for disbursement or any information contained therein or any other information provided to Administrative Agent in
accordance with the other provisions of this Section 5 shall constitute the acceptance or approval by Administrative Agent
of any portion of the Work.


 






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5.4.          Costs.
For purposes of this Agreement (a) the cost of labor and material (except stored and unincorporated materials) furnished for the
Work shall be deemed to be incurred by Borrower when the labor and material have been incorporated into the Project and the payment
therefor is due and payable, (b) the cost of stored and unincorporated materials shall be deemed to be incurred by Borrower when
such materials are purchased by Borrower, (c) the cost of services (other than labor included in the Work) shall be deemed to be
incurred by Borrower when the services are actually rendered and the payment therefor is due and payable, (d) real estate taxes,
interest and insurance premiums shall be deemed to be incurred by Borrower when such items become due and payable, and (e) any
other costs shall be deemed to be incurred by Borrower when the payment therefor is due and payable, but not before the value to
be received in return for such cost has been received by Borrower.


 


(a)          Method
and Application of Disbursements. Loan Advances shall be made through the Title Company, and Borrower will cause the Contractor
to comply with the requirements of the Title Company in order to enable said escrowee to issue to Administrative Agent a “date
down” endorsement to the Title Policy, make disbursements and obtain necessary sworn statements and waivers of lien, provided,
however, that Administrative Agent, in its sole discretion, may make payments of Project Costs directly to Borrower or upon the
occurrence and continuation of an Unmatured Default or an Event of Default, to the person or entity Administrative Agent determines
is entitled to payment or jointly to Borrower and such person or entity. Once the Loan Advance is funded to the Title Company or
to the person or entity Administrative Agent determines is entitled to payment, such Loan Advance shall be deemed to have been
funded to Borrower.


 


(b)          Notwithstanding
the foregoing, neither Administrative Agent nor any Lender shall be responsible, liable or obligated to the Contractor, Subcontractors,
suppliers, materialmen, laborers, architects, engineers, or any other parties, for services or work performed, or for goods delivered
by them or any of them, in and upon the Land or employed directly or indirectly in the performance of the Work, or for any debts
or claims whatsoever accruing in favor of any such parties and against Borrower or others, or against the Project. It is expressly
understood and agreed that Borrower is not and shall not be an agent of Administrative Agent or any Lender for any purpose whatsoever.
Without limiting the generality of the foregoing, advances made at Administrative Agent’s option, directly to the Contractor,
any Subcontractor or supplier of labor or materials, or any other party, shall not be deemed a recognition by Administrative Agent
of any third party beneficiary status of any such Person or entity.


 




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5.5.          Release
of Retainage. Retainage(s) shall be released as follows:


 


(a)          Retainage
on any Subcontract shall be released within thirty (30) days after such Subcontract has been fully performed and the following
conditions have been satisfied:


 


(i)          Borrower
has delivered final and unconditional waivers of lien from the Subcontractor whose individual Subcontract has been fully performed
to the Title Company with copies to Administrative Agent;


 


(ii)         All
conditions precedent to disbursement of Loan Advances as set forth in Section 5.1 have been fully satisfied; and


 


(ii)         Administrative
Agent has received a certificate in writing signed by a duly authorized officer of Contractor and the Architect certifying that
the Work provided for in the Subcontract has been fully and satisfactorily completed in accordance with the Plans and Specifications,
and in compliance with all Applicable Laws, and the Consultant has approved all such Work.


 


(b)          Ninety
percent (90%) of the Retainage then being held shall be released to the Contractor within thirty (30) days after the following
conditions have been satisfied:


 


(i)          All
conditions precedent to disbursement of Loan Advances as set forth in Section 5.1 have been fully satisfied; and


 


(ii)         Administrative
Agent has received a certificate in writing signed by a duly authorized officer of Contractor and the Architect certifying that
the Work provided for in the Subcontract has been substantially and satisfactorily completed in accordance with the Plans and Specifications,
and in compliance with all Applicable Laws, and the Consultant has approved all such Work.


 


(c)          Final
disbursement of Retainages to the Contractor not previously released shall be made upon satisfaction of the following conditions
in addition to satisfaction of the other conditions set forth in Section 5.1:


 


(i)          Borrower
has delivered to Administrative Agent (A) a certificate in writing signed by a duly authorized officer of the Contractor certifying
that all obligations of the Contractor under the Construction Contract and all obligations of the Subcontractors under the Subcontracts
have been fully performed, and (B) a certificate signed by the Architect certifying that the construction of the Work has been
completed in all respects in accordance with the Plans and Specifications and the use and occupancy of the Project is permitted
under all Applicable Laws;


 


(ii)         Borrower
has delivered to Administrative Agent all applicable licenses or permits necessary for the use of the Project, including without
limitation, a final, unconditional certificate of occupancy for the Project (or a local equivalent, if applicable);


 


(iii)        Borrower
has delivered to Administrative Agent certificates of fire and extended coverage insurance as herein required (or, if requested
by Administrative Agent, copies of such policies), and if any Tenants are in occupancy and if requested by Administrative Agent,
rent loss insurance in form and substance reasonably satisfactory to Administrative Agent, with Administrative Agent named as mortgagee
and as an additional insured party and loss payee;


 






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(iv)        The
Title Company is unconditionally prepared to issue its final updated date down endorsement to the Title Policy covering the Principal
Balance of the Loan, subject only to the Permitted Exceptions and other exceptions approved by Administrative Agent in writing,
and including full coverage against all mechanics’ liens and such other endorsements as are required by Administrative Agent;


 


(v)         Borrower
has delivered to the Title Company and Administrative Agent final and unconditional waivers of lien from the Contractor and all
Subcontractors and materialmen who have supplied labor or material in connection with the Work and who have not previously submitted
such final waivers; and


 


(vi)        Borrower
has delivered to Administrative Agent a final Survey of the Project locating the completed Project, satisfying the terms of Section
4.2 hereof.


 


5.6.          Interest
Reserve. An aggregate amount equal to Six Hundred Thirty-Eight Thousand Five Hundred Forty-Nine and No/100 Dollars ($638,549.00)
exists as a line item in the Budget for the payment of interest under the Loan (the “Interest Reserve”). If
Borrower provides Administrative Agent with evidence reasonably satisfactory to Administrative Agent that the cash proceeds available
to Borrower from the Project are in an amount which is insufficient to make the payment of interest on the Principal Balance on
the next interest payment date, together with such other information as Administrative Agent may reasonably require, Administrative
Agent agrees to make Loan Advances from the Interest Reserve on the next monthly interest payment date to itself directly for such
applicable interest payment. Borrower acknowledges and agrees that Administrative Agent shall have no obligation to disburse funds
from the Interest Reserve if there exists an Unmatured Default or an Event of Default or there are sufficient cash proceeds available
to Borrower from the Project to make the payment of interest on the Principal Balance. If the amounts contained in the Interest
Reserve are insufficient to pay interest on the Loans thereafter to become due, as estimated by Administrative Agent in its sole,
but reasonable discretion, Borrower shall, within five (5) Business Days after receipt of written notice, deposit with Administrative
Agent sufficient funds (as determined by Administrative Agent) so as to maintain an adequate Interest Reserve.


 


SECTION
6.

REPRESENTATIONS AND WARRANTIES


 


In order to induce
Administrative Agent and the Lenders to execute this Agreement and to make the Loan, Borrower represents and warrants to Administrative
Agent and the Lenders as follows:


 






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6.1.          Organization
of Parties. Borrower and each Signing Entity are duly organized, validly existing and in good standing under the laws of its
respective state of organization, have all necessary power and authority to carry on its present business, and have full right,
power and authority to enter into and deliver the Loan Documents to which it is party, and to perform and consummate the transactions
contemplated hereby and thereby. The direct and indirect ownership of Borrower is as shown on Schedule 6.1, as the same
may be modified or supplemented from time to time in accordance with this Agreement. The organizational documents of Borrower and
each Signing Entity, copies of which have been furnished to Administrative Agent, are in effect, unamended, and are the true, correct
and complete documents relating to each such entity’s creation and governance.


 


6.2.          Title.
Borrower owns good and marketable fee simple title to the Real Property and the Personal Property. To the actual knowledge of Borrower,
the Real Property and the Personal Property are owned free and clear of all liens, claims and encumbrances, except the Permitted
Exceptions.


 


6.3.          Improvements.
Subject to the terms and conditions contained in this Agreement, Borrower intends to improve the Land with the Improvements. The
Work will be performed in accordance with the provisions of the Plans and Specifications and the Budget and all of the other requirements
of this Agreement.


 


6.4.          Validity
and Enforceability of Documents. 


 


(a)          Each
of the Loan Documents, has been duly authorized, executed and delivered by Borrower, Guarantor, as applicable, and are valid and
binding upon the parties thereto enforceable in accordance with the respective provisions thereof, subject only to applicable bankruptcy,
reorganization, insolvency, moratorium and other similar laws affecting the enforcement of creditor’s rights. Execution,
delivery and performance of the Loan Documents do not and will not contravene, conflict with, violate or constitute a default under
the certificate of formation, the operating agreement or any other organizational documents of Borrower and Guarantor or any other
Signing Entity, or any agreement, indenture or instrument to which Borrower or any Guarantor or any other Signing Entity is a party
or is bound or which is binding upon or applicable to the Project or any portion thereof. To the actual knowledge of Borrower,
execution, delivery and performance of the Loan Documents do not and will not contravene, conflict with, violate or constitute
a default under any Applicable Law.


 


(b)          To
the actual knowledge of Borrower, all plans, contracts, budgets, agreements, surveys, consents, waivers, documents and writings
of every kind or character relating to the transactions contemplated hereby delivered to Administrative Agent, whether pursuant
to the provisions of this Agreement or otherwise, are or will at the time of delivery be valid and enforceable and in all respects
what they purport to be, and to the extent that any such writing shall impose any obligation or duty on Borrower or Guarantor or
shall constitute a waiver of any rights which Borrower or Guarantor might otherwise have, such writing shall be valid and enforceable
against Borrower or Guarantor in accordance with its terms.


 





6.5.          Litigation
and Liens. To the actual knowledge of Borrower, there is not any condition, event or circumstance existing, or any litigation,
arbitration, governmental or administrative proceeding, action, examination, claims or demand pending or threatened affecting Borrower,
any Guarantor or the Project, or involving the validity or enforceability of the Loan Documents or involving any risk of a judgment
or liability which, if satisfied, would result in a Material Adverse Occurrence. To the actual knowledge of Borrower, there is
no Uniform Commercial Code financing statement on file that names Borrower or Guarantor as debtor and covers any of the Collateral
and there is no judgment or tax lien outstanding against Borrower or Guarantor.


 






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6.6.          Utilities;
Authorities. To the actual knowledge of Borrower, all utilities necessary for the use, operation and occupancy of the Project
(including, without limitation, water, storm sewer, sanitary sewer and drainage, electric, gas and telephone facilities) are available
at the Land, and all requirements for the use of such utilities have been fulfilled. To the actual knowledge of Borrower, all building,
zoning, safety, disabled persons, health, fire, water district, sewerage and environmental protection agency permits and other
licenses and permits which are required by any governmental authority for construction of the Improvements, and the use, occupancy
and operation of the Project in accordance with the Plans and Specifications have been obtained by or furnished to Borrower and
are in full force and effect.


 


6.7.          Solvency.
Each Obligor is solvent and able to pay such Obligor’s debts as such debts become due, and has capital sufficient to carry
on such Obligor’s present business transactions. To the actual knowledge of Borrower, the value of each Obligor’s property,
at a fair valuation, is greater than the sum of such Obligor’s debts. No Obligor is bankrupt or insolvent, nor has any Obligor
made an assignment for the benefit of such Obligor’s creditors, nor has there been a trustee or receiver appointed for the
benefit of such Obligor’s creditors, nor has there been any bankruptcy, reorganization or insolvency proceedings instituted
by or against any Obligor, nor will any Obligor be rendered insolvent by such Obligor’s execution, delivery or performance
of the Loan Documents or by the transactions contemplated thereunder.


 


6.8.          Financial
Statements. All financial statements submitted to Administrative Agent relating to Borrower, the Guarantor and the Project
are true, complete and correct in all material respects, and have been prepared in accordance with generally accepted accounting
principles or other accounting standards approved by Administrative Agent consistently applied and fairly present the financial
condition of the Person to which they pertain and the other information therein described and do not contain any untrue statement
of a material fact or omit to state a fact material to the financial statement submitted or this Agreement. No Material Adverse
Occurrence has occurred in the financial condition of Borrower, any Guarantor or the Project and no material increase in the contingent
liabilities of Borrower or Guarantor has occurred, in each case, since the dates of each such financial statement.


 


6.9.          Compliance
with Laws. To the actual knowledge of Borrower, upon completion of the Work in accordance with the Plans and Specifications,
the Project and the use, occupancy and operation thereof for their intended purposes will not violate any Applicable Laws, any
contractual arrangements with third parties, or any covenants, conditions, easements, rights of way or restrictions of record affecting
the Project. Neither Borrower nor any agent thereof has received any written notice alleging any such violation, which violation
has not previously been cured. To the actual knowledge of Borrower, upon completion of the Work in accordance with the Plans and
Specifications, the Project will be in full compliance and conformity with all zoning requirements, including without limitation,
those relating to setbacks, height, parking, floor area ratio, fire lanes and percentage of land coverage, and will not be a non-conforming
or special use. No right to any off-site facilities will be necessary to insure compliance by the Project with all Applicable Laws.


 






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6.10.        Event
of Default. To the actual knowledge of Borrower, no Unmatured Default or Event of Default exists.


 


6.11.        Leases.
Borrower has not entered into any and, to the actual knowledge of Borrower, there are no Leases for use or occupancy of any part
of the Property.


 


6.12.        Construction,
Architectural and Engineering Contracts and Subcontracts, etc.


 


(a)          Construction
Contract. Pursuant to the Construction Contract, the Contractor will construct the Improvements. The Construction Contract
is in full force and effect, unamended, and to the actual knowledge of Borrower, no default exists thereunder by any party thereto.
In the event of any conflict between the terms of the Construction Contract, any Subcontracts and this Agreement or any other Loan
Document, Borrower shall abide by and shall use its best efforts to cause the Contractor to act in accordance with the provisions
of the Loan Documents.


 


(b)          Architectural
Contract. Pursuant to the Architectural Contract, the Architect has agreed to perform architectural services in connection
with the design and construction of the Improvements. The Architectural Contract is in full force and effect, unamended, and to
the actual knowledge of Borrower, no default exists thereunder by any party thereto.


 


(c)          Engineering
Contract. Pursuant to the Engineering Contract, the Engineer has agreed to perform engineering services in connection with
the design and construction of the Improvements. The Engineering Contract is in full force and effect, unamended, and to the actual
knowledge of Borrower, no default exists thereunder by any party thereto.


 


(d)          Subcontracts.
Borrower has delivered to Administrative Agent true, complete and correct copies of all Material Subcontracts that have been entered
into prior to the date hereof, if any. The Material Subcontracts that have been entered into prior to the date hereof are in full
force and effect, unamended, and to the actual knowledge of Borrower, no default exists thereunder by any party thereto.


 


(e)          Plans
and Specifications. To the actual knowledge of Borrower, Borrower has delivered to Administrative Agent true, complete and
correct copies of the Plans and Specifications.


 


(f)          Construction
Schedule. To the actual knowledge of Borrower, the Construction Schedule is realistic and can be adhered to in completing the
Project in accordance with the Plans and Specifications.


 


6.13.         Budget.
The Budget is a true, correct and complete budget with respect to all the estimated costs of the Work (including both hard costs
and soft costs associated therewith) and indicates a total development cost of $50,920,000.00.


 


6.14.         No
Defects. To the actual knowledge of Borrower, there are no defects in the design or construction of the Project which would
result in a Material Adverse Occurrence or materially adversely affect the value, safety or intended use of the Project.


 






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6.15.         Additional
Agreements. Borrower has not entered into any and, to the actual knowledge of Borrower, there are no, management, leasing,
development or other agreements in existence that affect the Project, other than the Construction Contract, the Subcontracts, the
Property Management Contract, the Development Agreement, or those described in the schedule of Permitted Exceptions or as previously
delivered to Administrative Agent.


 


All representations
and warranties which have been made by Borrower in this Agreement or the other Loan Documents shall be true in all material respects
at the time of each Loan Advance, and in the event of any material breach, misrepresentation or omission, Lenders shall have the
absolute right to terminate their obligations under this Agreement (without any obligation to refund any loan or other fees previously
paid), and upon demand by Administrative Agent, Borrower shall reimburse Lenders for the Loan Expenses; provided, however, that
such a false or misleading misrepresentation shall not constitute an Event of Default (and Lenders shall not have the right to
terminate, as aforesaid) if Administrative Agent determines in its reasonable discretion that the same is susceptible to being
cured and then is secured by Borrower in such a way as to make the original representation true and not misleading within thirty
(30) days after receipt of notice from Administrative Agent identifying such misrepresentation.


 


SECTION
7.

BORROWER’S COVENANTS; SECURITY INTERESTS


 


7.1.          Compliance
with Laws. Borrower shall comply or cause compliance with all Applicable Laws, including without limitation, laws governing
the construction, development, use and operation of the Project and ERISA. Reasonable evidence of such compliance shall be submitted
to Administrative Agent on request.


 


7.2.          Inspection.
Upon reasonable prior written or oral notice (which shall not be required in the event of an emergency), and subject to the rights
of tenants under any then effective Leases, Borrower shall permit inspection of the Property by Administrative Agent, the Consultant
and any other agent or designee of Administrative Agent; provided, that no such inspection or entry upon the Property shall unreasonably
interfere with or disrupt the activities then occurring on the Property in any manner. In addition, upon reasonable prior written
or oral notice (which notice shall not be required in the event of an emergency. Borrower shall permit Administrative Agent and/or
its agents and designees access to and the right to inspect, audit and copy all books, records, contracts and other documents and
information relating to Borrower, any Guarantor or the Property. All such books, records and accounts of operations relating to
the Property shall be kept in accordance with sound accounting practices consistently applied. Borrower shall promptly respond
to any inquiry from Administrative Agent for information with respect to the Property, which information may be verified by Administrative
Agent at Borrower's expense; provided, however, that Lenders shall at all times be entitled to rely upon any statements or representations
made by Borrower or any agent thereof. If Administrative Agent or the Consultant determine in their sole, but reasonable discretion
that any Work does not materially conform with the requirements of this Agreement or the Plans and Specifications, Administrative
Agent shall have the right to require, and Borrower shall promptly perform, or cause to be performed, the necessary corrective
work for the Work to materially conform to the Plans and Specifications or this Agreement, as applicable. Borrower acknowledges
and agrees that any and all inspections of the Work made by Administrative Agent, on behalf of the Lenders, the Consultant or their
respective agents, employees and/or designees shall be solely for Administrative Agent’s own information and shall not be
deemed to have been made for or on account of Borrower or any other party, and neither Administrative Agent nor any Lender shall
have any liability or responsibility relating in any way whatsoever to the construction of the Project, including, but not limited
to, the Work thereon, the material or labor supplied in connection therewith, and any errors, inconsistencies or other defects
in the Plans and Specifications.


 




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7.3.          Appraisal.
Borrower acknowledges and agrees that Administrative Agent may obtain from time to time an appraisal of all or any part of the
Property prepared in accordance with written instructions from Administrative Agent by a third-party appraiser engaged directly
by Administrative Agent. Subject to the requirements of Section 7.2, above, Borrower shall permit access to the Property in connection
with any appraisal and shall otherwise reasonably cooperate with any such third-party appraiser. The cost of any such appraisal
shall be borne by Borrower (i) if such appraisal is obtained per Section 3.5(a)(v), (ii) if such appraisal is the first appraisal
since the Loan Opening Date (other than a previous appraisal obtained per Section 3.5(a)(v)), and (iii) in all events if Administrative
Agent obtains such appraisal after the occurrence of an Event of Default. The cost of any such appraisal shall be otherwise borne
by Administrative Agent. Any appraisal costs for which Borrower is responsible (as aforesaid) shall be due and payable by Borrower
on demand and shall constitute an Obligation hereunder. Administrative Agent shall provide a copy of such appraisal to each Lender
upon receipt. Administrative Agent shall also provide a copy of any such appraisal to Borrower if Borrower pays the cost of the
appraisal.


 


7.4.          Liens.


 


(a)          Borrower
shall keep fee simple title to the Project and shall not create, incur, assume or suffer to exist any mortgage, pledge or other
lien claims or encumbrances against the Project, any Real Property or any Personal Property or against any funds due Contractor
or Subcontractor, other than (i) those under the Loan Documents, (ii) Leases permitted under the Loan Documents, (iii) liens for
real estate taxes and special assessments that are not delinquent, (iv) mechanics and materialmen’s liens which Borrower
in good faith contests so long as Borrower in fact contests such mechanics or materialmen’s liens by appropriate legal proceedings
diligently prosecuted, and then only if Borrower shall furnish to the Title Company such security or indemnity as the Title Company
requires to induce the Title Company to issue an endorsement to the Title Policy insuring over the exception created by such lien,
and provided further, that Lenders shall not be required to make any further disbursements of the Loan until any mechanics’
lien claims have been so insured against by the Title Company.


 


(b)          With
respect to the matters set forth in Section 7.4(a) above, if Borrower shall (i) fail promptly to discharge any asserted liens or
claims filed of record, or (ii) fail promptly to contest liens or claims filed of record or to give security or indemnity in the
manner provided in Section 7.4(a) above, or (iii) having commenced to contest the same, and having given such security or indemnity,
fail to prosecute such contest with reasonable diligence, or to maintain such indemnity or security so required by the Title Company
for its full amount, or (iv) upon adverse conclusion of any such contest, fail promptly to cause any judgment or decree to be satisfied
and lien to be released, then Administrative Agent may, but shall not be required to, procure the release and discharge of any
such claim and any judgment or decree thereon upon delivery of prior written notice to Borrower and, further, may, in its sole
discretion, effect any settlement or compromise of the same, or may furnish such security or indemnity to the Title Company, and
any amounts so expended by Administrative Agent, including premiums paid or security furnished in connection with the issuance
of any surety company bonds, shall be deemed to constitute disbursements of the proceeds of the Loan hereunder and shall bear interest
from the date so disbursed until paid at the Default Rate. In settling, compromising or discharging any claims for lien, Administrative
Agent shall not be required to inquire into the validity or amount of any such claim.


 




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7.5.          Concerning
the Premises.


 


(a)          Borrower
shall at all times duly perform and observe all of the terms, provisions, conditions and agreements on its part to be performed
and observed under the Declarations, and shall not suffer or permit any default or event or default on the part of Borrower to
exist thereunder, and shall not agree or consent to, or suffer or permit, any modification, amendment or termination thereof without
the prior written consent of Administrative Agent. Borrower shall promptly furnish to Administrative Agent copies of all notices
of default and other material documents and communications sent or received by Borrower under or relating to any Declaration.


 


(b)          Borrower
shall maintain, preserve and keep the Property in good repair, working order and condition and shall from time to time make all
necessary repairs, renewals, replacements, additions and betterments thereto so that at all times the Property and the Improvements
shall be fully preserved and maintained.


 


(c)          Borrower
shall not allow any Hazardous Materials to be stored, located, discharged, possessed, managed, processed or otherwise handled on
the Property in violation of any Environmental Laws, and shall comply with all Environmental Laws applicable to the Property.


 


(d)          Borrower
shall cause the Property to be taxed as one or more separate tax parcels which do not include any property other than the Property.


 


(e)          Borrower
shall ensure that under applicable law, the Property may be mortgaged, conveyed and otherwise dealt with as a separate legal parcel.


 


7.6.          Financial
Statements; Reports. Borrower shall deliver or cause to be delivered to Administrative Agent each month, a detailed report
showing the progress of the Work. In addition to such progress reports and any other financial statements required to be delivered
to Administrative Agent pursuant to the provisions of any of the other Loan Documents, Borrower will furnish the following to Administrative
Agent:


 


(a)          after
the Construction Completion Date, within one hundred twenty (120) days after the end of each fiscal year (or more frequently upon
receipt of written request from Administrative Agent), (i) financial statements of Borrower on a form reasonably acceptable to
Administrative Agent, containing income and expense statements and a balance sheet, and (ii) the personal financial statement of
each Guarantor on Administrative Agent’s standard form or another form reasonably acceptable to Administrative Agent that
shall include a detailed real estate schedule, cash flow statement and a schedule of contingent liabilities, certified by the applicable
Guarantor as fairly and accurately presenting the information contained therein. The financial statements shall be certified by
Borrower as fairly and accurately presenting the information contained therein. 


 




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(b)          By
February 15, 2018 and August 15, 2018, an executed Compliance Certificate from Borrower which shall be certified by Borrower as
fairly and accurately presenting the information contained therein.


 


(c)          Starting
with August 15, 2016, by February 15 and August 15 of each year, compliance certificates with respect to each Guarantor’s
net worth and liquidity in such form and content as may be reasonably required by Administrative Agent together with copies of
statements demonstrating the unencumbered liquid assets of each Guarantor, all of which shall be certified by the particular Guarantor
as fairly and accurately presenting the information contained therein.


 


(d)          Within
thirty (30) days after the filing thereof (but not later than May 15 unless proper extension requests have been filed and copies
of such extensions have been delivered to Administrative Agent by May 15, in which case this May 15 date shall automatically be
changed to November 30), copies of the federal and state income tax returns for each Obligor, together with all supporting schedules.


 


(e)          After
a certificate of occupancy has been issued for the Project, within fifteen (15) days after the end of each calendar quarter, (i)
a rent roll covering all Leases which shall be certified by Borrower as fairly and accurately presenting the information contained
herein, and (ii) a quarterly leasing report for the Project in a form acceptable to Administrative Agent and certified by Borrower
as fairly and accurately presenting the information contained therein.


 


(f)          In
addition to such the foregoing and any other financial statements required to be delivered to Administrative Agent pursuant to
the provisions of any of the other Loan Documents, Borrower will, upon receipt (on each occasion) of written request from Administrative
Agent furnish to Administrative Agent such information and reports, financial and otherwise, concerning each Obligor, the performance
of the Work and the operation of the Project as Administrative Agent reasonably requires from time to time,


 


7.7.          Affirmation
of Representations and Warranties. Borrower agrees that all representations and warranties of Borrower contained in Section
6 hereof shall remain true in all material respects at all times until the Loan is repaid in full.


 


7.8.          Taxes
and Assessments. Borrower shall pay when due and before any penalty attaches all general taxes and all special taxes, special
assessments, water charges, drainage and sewer charges and all other charges of any kind whatsoever, ordinary or extraordinary,
which may be levied, assessed, imposed or charged on or against it or on the Property, and shall, upon written request, exhibit
to Administrative Agent official receipts evidencing such payments; provided, that so long as in Administrative Agent’s sole
but reasonable discretion Administrative Agent’s interest in the Collateral is not jeopardized, Borrower may, in good faith,
protest and/or contest any such taxes, assessments or charges in accordance with the procedures established for such protest and/or
contest pursuant to Applicable Law, during which time the foregoing requirement shall be abated with respect to the taxes, assessments
and/or charges being protested and/or contested, and no Event of Default shall then exist. As a condition to the right to protest
and/or contest any such taxes, assessments or charges, Administrative Agent may require Borrower to post security therefor as determined
by Administrative Agent.


 




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7.9.          Proceedings
Affecting Property. If any proceedings are filed seeking to enjoin or otherwise prevent or declare invalid or unlawful the
construction, occupancy, use, maintenance or operation of the Project, or any portion thereof, Borrower shall cause such proceedings
to be contested in good faith, in a manner satisfactory to Administrative Agent and in the event of an adverse ruling or decision,
prosecute all allowable appeals therefrom, and shall, without limiting the generality of the foregoing, resist the entry or seek
the stay of any temporary or permanent injunction that may be entered, and use its best efforts to bring about a favorable and
speedy disposition of all such proceedings. All such proceedings, including without limitation, all of Administrative Agent’s
reasonable and actual costs, and fees and disbursements of Administrative Agent’s counsel in connection with any such proceedings,
whether or not Administrative Agent is a party thereto, shall be at Borrower’s expense. To the extent that Administrative
Agent incurs any such expenses, including reasonable attorneys’ fees and costs actually incurred at standard hourly rates
(without regard to any statutory attorneys' fees provisions) and fees and charges for court costs actually incurred, bonds and
the like, Borrower shall reimburse Administrative Agent for such expenses and the amount due Administrative Agent shall bear interest
from the date so incurred by Administrative Agent until repaid to Administrative Agent at the Default Rate and shall be payable
to Administrative Agent on demand. The foregoing provisions of this Section 7.9 shall not limit or affect the provisions
of Section 8(h) below.


 


7.10.         Disposal
and Encumbrance of Property. Borrower shall not, without Administrative Agent’s prior written consent(unless such consent
is not required, as expressly provided in the Loan Documents), suffer, permit or enter into any agreement for any sale, lease,
transfer, or in any way encumber or dispose of or grant or suffer any security or other assignment (collateral or otherwise) of
or in all or any portion of the Project. Any consent given by Administrative Agent or any waiver of default under this Section 7.10,
shall not constitute a consent to, or waiver of any right, remedy or power of Administrative Agent under any subsequent default
hereunder.


 


7.11.         Insurance.
Borrower shall, at its expense, during the term of this Agreement, procure and keep in force, or cause to be kept in force, the
insurance coverages described in Exhibit G attached to this Agreement and conforming to the insurance requirements
contained in the Mortgage. In addition, all insurance shall be in form, content and amounts approved by Administrative Agent and
written by an insurance company or companies licensed to do business in the State and domiciled in the United States or a governmental
agency or instrumentality approved by Administrative Agent. The policies for such insurance shall have attached thereto standard
mortgagee clauses in favor of and permitting Administrative Agent to collect any and all proceeds payable thereunder and shall
include a thirty (30) day (except for nonpayment of premium, in which case, a ten (10) day) notice of cancellation clause
in favor of Administrative Agent. All policies or certificates of insurance shall be delivered to and held by Administrative Agent
as further security for the payment of obligations arising under the Loan Documents, with evidence of renewal coverage delivered
to Administrative Agent at least thirty (30) days before the expiration date of any policy.


 




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7.12.         Performance
of Obligations; Notice of Default. Borrower shall promptly and fully perform and comply in all respects with the obligations,
terms, agreements, provisions and requirements of this Agreement and the other Loan Documents and will not permit to occur any
default or breach hereunder or thereunder. Borrower shall promptly give to Administrative Agent notice of the occurrence of any
Unmatured Default or of any event that would constitute a Material Adverse Occurrence.


 


7.13.         Restrictions
Affecting Obligors. Borrower covenants and agrees that, without the prior written consent of Administrative Agent, which consent
shall not be unreasonably withheld, there shall not occur any amendment or modification of the articles of organization establishing
any Obligor. At all times prior to the repayment of the Loans, (a) Borrower shall not enter into any contract or agreement
for the provision of services or otherwise with respect to the Project with any member or manager or Affiliate of Borrower unless
such contract or agreement is an arms-length, market rate agreement and is cancelable upon thirty (30) days written notice from
any owner of the Project; and (b) no Obligor shall be dissolved or its existence terminated and each Obligor shall remain in good
standing.


 


7.14.         Use
of Receipts Bank; Accounts; Limitation on Distributions.


 


(a)          Borrower
shall cause all rents and other income and receipts realized and received by Borrower, if any, from and in connection with the
Project to be used for the purpose of paying the actual costs and expenses incurred by Borrower in connection with the ownership,
operation, management and repair of the Project, including without limitation, operating expenses, real estate taxes, insurance
premiums and interest on the Loans.


 


(b)          Borrower
shall maintain all of its bank accounts at The PrivateBank and Trust Company, and shall maintain all of its cash and investments
on deposit in deposit accounts at The PrivateBank and Trust Company.


 


(c)          Borrower
shall deposit all Gross Revenues promptly upon receipt thereof, into a bank account or accounts maintained by Borrower at The PrivateBank
and Trust Company. As additional security for the payment and performance of all of the obligations of Borrower under this Agreement
and the other Loan Documents, Borrower hereby pledges and assigns to Administrative Agent, and grants to Administrative Agent a
first lien on and a first priority security interest in, the Gross Revenues, all of Borrower’s present and future Accounts
(as defined in the Code), and the proceeds of all of the foregoing.


 




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(d)          Borrower
shall apply all Gross Revenues first to pay all Operating Expenses and amounts due to Administrative Agent and Lenders under the
Notes and pursuant to the Loan Documents. Neither Gross Revenues nor any other funds or other property of Borrower: (i) shall be
used to make, directly or indirectly, any “Distributions” (as defined below), Borrower acknowledging
that no withdrawal of capital including internally generated capital, may be made at any time while the Loan is outstanding; (ii)
shall be applied to the payment of any obligations, debts or expenses of any Affiliate not set forth on the Budget; and (iii) shall
be disbursed or used for any other purpose without the prior written approval of Administrative Agent. For such purposes, the term
“Distribution” means (A) any distribution of money or property for compensation (and not reimbursement)
to any owner of a direct or indirect interest in Borrower (each an “Owner”) or to any Affiliate of any
Owner, (B) any loan or advance to any Owner or to any Affiliate of any Owner, (C) any payment of principal or interest on any indebtedness
due to any Owner or to any Affiliate of any Owner, and (D) any payment of any fees or other compensation (and not reimbursement)
to any Owner or to any Affiliate of any Owner; provided, however, that notwithstanding the foregoing, the following are specifically
excluded from the foregoing definition and shall not, under any circumstances, be considered a Distribution under this Agreement
or any other Loan Document: (y) distribution by any Owner of any other funds of such Owner that do not constitute Borrower funds,
and (z) reallocations of any unused Contingencies or remaining line item amounts (as set forth in the Budget) in accordance with
this Agreement. Notwithstanding the foregoing, if (i) the rules that were issued by the OCC, FDIC and Federal Reserve Board for
High Volatility Commercial Real Estate (“HVCRE”) and which apply to the Loan and are in effect as the
date hereof are revised or clarified to permit distributions of capital generated by the Project without the Loan being classified
as an HVCRE loan, (ii) the Project has been completed as provided in Section 3.5(a)(vi), and (iii) Borrower demonstrates
to Administrative Agent’s reasonable satisfaction that the Project has achieved a Debt Service Coverage Ratio of at least
1.25 to 1.0, so long as no Unmatured Default or Event of Default exists, distributions of capital generated by the Project will
be permitted to the extent permitted by such revised or clarified HVCRE requirements without causing the Loan to be classified
as a HVCRE loan.


 


7.15.         Additional
Documents. Borrower shall not execute or record any document pertaining to, affecting or running with all or any portion of
the Property, including, without limitation, any condominium declaration or plat, without the prior written approval of Administrative
Agent of the form and substance of such documents, which approval shall not be unreasonably withheld, conditioned or delayed. This
Agreement is intended to be a security agreement under the Code for the purpose of creating the security interests provided for
herein. Borrower shall execute and deliver such additional security agreements and other documents as the Administrative Agent
shall from time to time reasonably request in order to create and perfect such security interests.


 


7.16.         Ineligible
Securities. Borrower shall not use any portion of any Loan Advance or Loans made hereunder to be used directly or indirectly
to purchase ineligible securities, as defined by applicable regulations of the Federal Reserve Board.


 


7.17.         OFAC.
Borrower shall (a) ensure that no Person or entity that owns a controlling interest in or otherwise controls Borrower is or shall
be listed on the Specially Designated Nationals and Blocked Person List or other similar lists maintained by the Office of Foreign
Assets Control (“OFAC”), the Department of the Treasury or included in any Executive Orders, (b) not
use or permit the use of any proceeds of the Loans to violate any of the foreign asset control regulations of OFAC or any enabling
statute or Executive Order relating thereto, and (c) comply with all applicable Bank Secrecy Act (“BSA”)
laws and regulations, as amended.


 




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7.18.         Loan
Expenses. Borrower agrees to pay all of the Loan Expenses as required by and
in accordance with the applicable provisions of this Agreement. Any Loan Expenses paid by Administrative Agent and/or the Lenders
shall bear interest commencing on the date demand for repayment thereof is made by Administrative Agent and/or the Lenders until
repaid to Administrative Agent, for the benefit of the Lenders, at the Default Rate and shall be paid by Borrower upon demand or
may be paid by Lenders at any time by disbursement of proceeds of the Loans. Any Loan Expenses paid by Administrative Agent and/or
the Lenders shall be reimbursed to Administrative Agent and/or the Lenders by Borrower regardless of whether there shall be any
disbursements of the Loans.


 


7.19.         Management.
Borrower at all times shall provide for the competent and responsible management and operation of the Property. At all times, Borrower
shall cause the Property to be managed by an Approved Manager. All management and brokerage contracts affecting the Property shall
be terminable upon thirty (30) days’ written notice without penalty or charge (except for unpaid accrued management and brokerage
fees). All management and brokerage contracts and any amendment, extension or substitution thereof must be approved in writing
by Administrative Agent prior to the execution of the same, which approval shall not be unreasonably withheld, conditioned or delayed.
In the event that Administrative Agent grants such consent, Borrower shall cause the manager or broker under any agreement to enter
into an agreement with Administrative Agent, reasonably acceptable in form and substance to Administrative Agent, pursuant to which
said manager or broker subordinates its liens for unpaid fees to the liens of the Mortgage and the other Loan Documents.


 


7.20.         Single
Asset Entity. Borrower shall not hold or acquire, directly or indirectly, any ownership interest (legal or equitable) in any
real or personal property other than the Property and/or relating thereto, or become a shareholder of or a member or partner in
any entity which acquires any property other than the Property, until such time as the Obligations have been fully repaid. The
organizational documents of Borrower shall limit its purpose to the acquisition, operation, management and disposition of the Property
and/or matters relating thereto, shall adopt the covenants contained in this Section 7.20, and such purposes shall not be
amended without the prior written consent of Administrative Agent, which consent shall not be unreasonably withheld, conditioned
or delayed. Borrower shall:


 


(a)          Maintain
its assets, accounts, books, records, financial statements, stationery, invoices, and checks separate from and not commingled with
any of those of any other person or entity;


 


(b)          Conduct
its own business in its own name, pay its own liabilities out of its own funds, allocate fairly and reasonably any overhead for
shared employees and office space, and to maintain an arm’s length relationship with its Affiliates;


 


(c)          Hold
itself out as a separate entity, correct any known misunderstanding regarding its separate identity, maintain adequate capital
in light of its contemplated business operations, (provided, nothing herein shall require any Owner to make additional Capital
Contributions to Borrower following the Loan opening, but even though nothing herein requires any Owners to make additional Capital
Contributions to Borrowers, this provision does not relieve the Borrower from its obligations to keep the Loan In Balance) and
observe all organizational formalities;


 




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(d)          Not
guarantee or become obligated for the debts of any other entity or person or hold out its credits as being available to satisfy
the obligations of others, including not acquiring obligations or securities of its partners, members or shareholders, except in
connection with the Loans;


 


(e)          Not
pledge its assets for the benefit of any other entity or person or make any loans or advances to any person or entity, except in
connection with the Loans;


 


(f)          Not
enter into any contract or agreement with any Affiliate, except upon terms and conditions that are intrinsically fair and substantially
similar to those that would be available on an arms-length basis with third parties other than any Affiliate;


 


(g)          Not,
and shall not permit any constituent party of Borrower to seek the dissolution or winding up, in whole or in part, of Borrower
and/or such constituent party of Borrower, nor merge with or be consolidated into any other entity; and


 


(h)          Maintain
its assets in such a manner that it will not be unreasonably costly or difficult to segregate, ascertain or identify its individual
assets from those of any constituent party of Borrower, any Affiliate, Guarantor or any other person.


 


7.21.         No
Debt. Except for the Obligations, Borrower shall not incur or become liable for any indebtedness other than customary trade
payables paid within sixty (60) days after they are incurred.


 


7.22.         Use
of Loan Advances. Borrower covenants and agrees that all Loan Advances to be made hereunder by Lenders shall be used solely
for the payment (or reimbursement to others for payment) of the bills for the labor and materials used in the performance of the
Work for which such Loan Advances were requested by Borrower, and for the payment of the other items of Project Cost for which
such Loan Advances were requested by Borrower (no Project Cost shall include expenses relating to any development, construction,
operating or other cost attributable to any project other than the Project specifically described in this Agreement), and for no
other purpose whatsoever; however, nothing herein shall impose upon Administrative Agent or any Lender any obligation whatsoever
to see to the proper application of any such monies by Borrower. Whenever so requested by Administrative Agent, Borrower shall
promptly furnish Administrative Agent written evidence reasonably satisfactory to Administrative Agent that all monies theretofore
advanced by the Lenders pursuant to this Agreement have actually been or will be paid or applied in payment of the cost of performance
of the Work and in payment of the other items of Project Cost for which such funds were advanced by the Lenders, and until such
evidence is produced, at the option of Administrative Agent, no future or additional payments or Loan Advances need be made hereunder.


 


7.23.         Financial
Covenants. The Debt Service Coverage Ratio must be (i) at least 1.00 to 1.00 on December 31, 2017, (ii) at least 1.10 to 1.00
on June 30, 2018, (iii) provided that the First Extension Option is exercised, at least 1.15 to 1.00 on the date of the First Extension
Request and quarterly after the Initial Maturity Date, and (iv) provided that the Second Extension Option is exercised, at least
1.25 to 1.00 on the date of the Second Extension Request and quarterly after the First Extended Maturity Date provided, that all
such dates are subject to a day for day extension (not to exceed thirty (30) days) in the event of any occurrence of Force Majeure.
Without limiting any other provisions of this Agreement, Borrower shall promptly provide Administrative Agent with such information
as Administrative Agent may request to calculate the Debt Service Coverage Ratios described in this Section 7.23.


 




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7.24.         Approved
Leases. Borrower shall not enter into any tenant lease of non-residential space in the Improvements unless approved in writing
by Administrative Agent. Borrower shall not enter into any tenant lease of residential space in the Improvements with a tenant
leasing more than five (5) units in the Project unless approved in writing by Administrative Agent. Except as provided in the preceding
sentence, Borrower may enter into tenant leases of residential space in the Improvements without Administrative Agent’s approval
so long as such leases are on Borrower's standard form of tenant lease without any material adverse changes. Borrower’s standard
form of tenant lease for residential space, and any revisions thereto, must have the prior written approval of Administrative Agent,
which approval shall not be unreasonably withheld, conditioned or delayed. Borrower shall, throughout the term of this Agreement,
pay all reasonable costs incurred by Administrative Agent in connection with Administrative Agent’s review and approval of
tenant leases and each guarantee thereof (if any), including reasonable attorneys’ fees and costs actually incurred at standard
hourly rates (without regard to any statutory attorneys' fees provisions); provided, however, that Administrative Agent shall use
good faith discretion with regard to incurring such review costs in order to minimize the same.


 


7.25.         Manner
of Construction. Borrower shall, at its sole cost and expense, cause the construction of the Project to be diligently and expeditiously
carried out, in a good and workmanlike manner, in accordance with the Plans and Specifications and all Applicable Laws. All materials,
fixtures, equipment or articles used in the renovation, construction or equipping of the Project shall materially comply with the
Plans and Specifications. Without limiting the generality of the foregoing, Borrower will use best efforts to commence construction
of the Project on or prior to the Construction Commencement Date and use best efforts to cause construction to continue without
interruption until completion in accordance with the Construction Schedule, and to be completed in accordance with the Plans and
Specifications and Applicable Laws prior to the Construction Completion Date. Construction of the Project shall not be deemed to
be complete until the Architect has certified that all space located within the Project can be used and occupied in accordance
with all Applicable Laws and a final, unconditional certificate of occupancy (or local equivalent) has been issued therefor. Borrower
shall forthwith upon completion of the Improvements and each portion thereof cause the same to be inspected by each applicable
governmental authority, shall cause to be corrected any defects and deficiencies which may be disclosed by any such inspection
and shall cause to be duly issued all occupancy certificates and other licenses, permits and authorizations necessary for the operation
and occupancy of the Improvements and each portion thereof; and in any event, Borrower shall use best efforts to do and perform,
or cause to be done and performed, all of the foregoing acts and things and cause to be issued and executed all such occupancy
permits, licenses and authorizations on or before the Construction Completion Date, including without limitation, correcting any
defect in the Improvements demanded by an governmental authority.


 


7.26.         Certificate
of Completion. Within fifteen (15) days after the Project is completed, Borrower shall deliver to Administrative Agent a certificate
of the Architect stating that the Project has been completed in accordance with the Plans and Specifications and all Applicable
Laws.


 




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7.27.         Change
Orders. Borrower shall not, without the prior written approval of Administrative Agent, make or permit any modification of
the Plans and Specifications, or amend or modify the Construction Contract or Architectural Contract or enter into any change orders
or additional contracts for the performance of any portion of the Work; provided, however, Borrower shall have the right to enter
into one or more change orders without Administrative Agent’s consent, so long as (a) no Event of Default or Unmatured Default
exists under this Agreement or any of the other Loan Documents, (b) the change order does not individually result in a change in
the cost of constructing the Project of more than Fifty Thousand Dollars ($50,000.00) after allocation of any and all Contingency
and reallocated line-item amounts, (c) the change order does not, together with all other change orders, result in a change in
the cost of constructing the Project of more than Three Hundred Thousand Dollars ($300,000.00), (d) the change order does not affect
any structural portion of the Project, the overall appearance of the Project or the use or operation of the Project in any materially
adverse respect, and (e) any increased cost resulting from the change order is paid for from the contingency line item in the Budget
or any additional funds deposited by Borrower with Administrative Agent (in accordance with Section 3.4(c) hereof).
In any event, Borrower shall deliver to Administrative Agent copies of all such change orders not requiring Administrative Agent’s
prior approval, together with all related documentation, no later than ten (10) days after the execution thereof.


 


7.28.         Material
Subcontracts. If requested by Administrative Agent, within ten (10) days after being executed, Borrower shall deliver to Administrative
Agent a copy of each Material Subcontract entered into by the Contractor. Borrower shall not enter any contract or subcontract
that shall cause the Loan to not be In Balance.


 


7.29.         Budget.
Except as provided hereinbelow, Borrower shall not amend the Budget without Administrative Agent’s prior written consent,
which consent shall not be unreasonably withheld, conditioned or delayed. Borrower shall not reallocate any line items within the
Budget unless Borrower can demonstrate to Administrative Agent’s satisfaction that sufficient funds remain (i) in the line
item from which the amount is to be reallocated to pay all Project Costs which may be paid from that line item and (ii) in the
Budget to complete the Work in accordance with the Plans and Specifications. If any funds are to be reallocated, unless otherwise
approved in writing by Administrative Agent, which approval shall not be unreasonably withheld, conditioned or delayed, such funds
from a hard cost line item may only be reallocated to another hard cost line item and such funds from a soft cost line item may
only be reallocated to another soft cost line item; provided, however, in no event may funds be reallocated to or from the Interest
Reserve or reallocated to the Developer Fee without Administrative Agent’s prior written consent. For the avoidance of doubt,
notwithstanding any provision of this Agreement to the contrary but only so long as the Loan is In Balance, Borrower may, in its
sole and absolute discretion and without obtaining prior approval of Administrative Agent or any Lender, reallocate any and all
remaining Contingency amounts and unused line item amounts (as set forth in the Budget); provided, that the dedicated Project Cost
associated with any such line item amounts (as set forth in the Budget) has been fully satisfied and provided further that in no
event may such funds be reallocated to the Interest Reserve or reallocated to the Developer Fee without Administrative Agent’s
prior written consent.


 




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7.30.         Loan
In Balance. Borrower shall maintain the Loan In Balance at all times.


 


7.31.         Development
Fee. Borrower shall pay the Development Fee to the Developer in twenty-two (22) equal monthly installments commencing November,
2015. Borrower shall not disburse the Development Fee in excess of the amount set forth in the Budget to the Developer and may
not pay or disburse any Development Fee to the Developer at any time that an Event of Default or any Unmatured Default exists.


 


7.32.         Collateral
Assignment of Plans, Permits and Contracts. As additional security for the payment and performance of all of the Obligations,
Borrower hereby pledges and assigns to Administrative Agent, and grants to Administrative Agent a first lien on and a first priority
security interest in, (a) all present and future Plans and Specifications for the construction of the Improvements; (b) all present
and future applications, permits, licenses and approvals between Borrower and others, or given or to be given to Borrower by governmental
authorities, relating to the Improvements, together with all of Borrower’s rights, options and privileges thereunder; and
(c) all present and future architectural, engineering and construction contracts relating to Improvements.


 


7.33.         Take-Out
Commitments. Borrower shall at all times duly perform and observe all of the terms, provisions, conditions and agreements on
its part to be performed and observed under any present or future commitment for permanent or take-out financing for the Property
and the Improvements, and under any multi-party agreement entered into in connection with such a commitment, and shall not suffer
or permit any default or event of default to exist under any such commitment or multi-party agreement, and shall not agree or consent
to, or suffer or permit, any termination, modification or amendment of any such commitment. As additional security for the payment
and performance of all of the obligations of Borrower under this Agreement and the other Loan Documents, Borrower hereby pledges
and assigns to Administrative Agent for the benefit of the Lenders, and grants to Administrative Agent a first lien on and a first
priority security interest in, all such present and future commitments for permanent or take-out financing for the Property and
the Improvements and all loan proceeds payable under all such commitments.


 


7.34.         Transfer
of Ownership Interests. There shall be no transfer or assignment of any ownership interest in Borrower or transfer or assignment
of any ownership interest in any entity that directly or indirectly owns an ownership interest in Borrower; provided, however,
that the foregoing restriction shall not apply to any Permitted Transfer (and the occurrence of same shall not constitute an Event
of Default).


 


SECTION
8.

EVENTS OF DEFAULT


 


The occurrence of any
one or more of the following shall constitute an “Event of Default”:


 


(a)          Failure
by Borrower or any other Obligor to make: (i) any payment of principal or interest hereunder or under the Notes within five (5)
Business Days of the date when due, or (ii) any other payment under the Loan Documents within five (5) Business Days of the date
when due or, if no date is stated, five (5) Business Days after Borrower's receipt of written demand from Administrative Agent
(or such shorter period as may be expressly provided for herein or therein);


 




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(b)          Failure
by Borrower to perform or cause to be performed any other obligation or observe any other condition, covenant, term, agreement
or provision required to be performed or observed by Borrower contained in this Agreement or in any other Loan Document and not
specifically referred to elsewhere in this Section 8; provided, however, that if such failure by its nature can be cured,
then so long as the continued operation and safety of the Project, and the priority, validity and enforceability of the liens created
by this Agreement, the Mortgage or any of the other Loan Documents and the value of the Property is not impaired, threatened or
jeopardized, then Borrower shall have a period (“Cure Period”) of thirty (30) days after Borrower obtains actual
knowledge of such failure, or receives written notice of such failure, whichever first occurs, in which to cure the same and an
Event of Default shall not be deemed to exist during the Cure Period (provided, however, such period shall be limited to ten (10)
days if such failure can be cured by the payment of money); provided, however, that (i) if the subject failure cannot reasonably
be cured within the Cure Period or has not been cured within the Cure Period but is reasonably capable of cure and Borrower has
commenced the cure within the initial thirty (30) day period, and (ii) Borrower continues to use good faith efforts to cure such
failure, the Cure Period shall be extended for a reasonable amount of time (not to exceed an additional thirty (30) days) in order
to allow Borrower a bona fide opportunity to cure such failure, during which time an Event of Default shall not be deemed to exist
or to have occurred.


 


(c)          The
existence of any material inaccuracy or untruth in any representation or warranty contained in this Agreement or any other Loan
Documents, or of any statement or certification as to facts delivered to Administrative Agent by or on behalf of Borrower or the
Guarantor, provided, however, that any such material inaccuracy or untruth shall not constitute an Event of Default if Administrative
Agent determines in its reasonable discretion that the same is susceptible to being cured and then is secured by Borrower in such
a way as to make the original representation or warranty true and not misleading within thirty (30) days after receipt of notice
from Administrative Agent identifying such material inaccuracy or untruth.


 


(d)          A
Material Adverse Occurrence;


 


(e)          Intentionally
Omitted;


 


(f)          Borrower,
any Guarantor or any successors or permitted assigns of it, shall:


 


(i)          file
a voluntary petition in bankruptcy or an arrangement or reorganization under any federal or state bankruptcy, insolvency or debtor
relief law or statute (hereinafter referred to as a “Bankruptcy Proceeding”);


 


(ii)         file
any answer in any Bankruptcy Proceeding or any other action or proceeding admitting insolvency or inability to pay his, her or
its debts;


 


(iii)        fail
to oppose, or fail to obtain a vacation or stay of, any involuntary Bankruptcy Proceeding within sixty (60) days after the filing
thereof;


 




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(iv)        solicit
or cause to be solicited petitioning creditors for any involuntary Bankruptcy Proceeding against Borrower or any Guarantor;


 


(v)         be
granted a decree or order for relief, or be adjudicated a bankrupt or declared insolvent in any Bankruptcy Proceeding, whether
voluntary or involuntary;


 


(vi)        have
a trustee or receiver appointed for or have any court take jurisdiction of its property, or the major part thereof, or all of any
portion of the Property, in any voluntary or involuntary proceeding for the purpose of reorganization, arrangement, dissolution
or liquidation, and, with respect to an involuntary proceeding only, such trustee or receiver is not discharged or such jurisdiction
is not relinquished, vacated or stayed on appeal or otherwise, within sixty (60) days after the commencement thereof;


 


(vii)       make
an assignment for the benefit of creditors;


 


(viii)      consent
to any appointment of a receiver or trustee or liquidator of all of its property, or the major part thereof, or all or any portion
of the Property; or


 


(ix)         have
an attachment or execution levied with respect to, or other judicial seizure be effected for, all or substantially all of its assets
or all or any portion of the Property, or the placing of any attachment, levy of execution, charging order, or other judicial seizure
on the interest of the parent of Borrower; provided, however, with respect to any of the matters described in clauses (i) through
(ix) that are applicable to any Guarantor, such matters shall not constitute an Event of Default if a Replacement Guarantor acceptable
to Administrative Agent executes a Guaranty in substantially the same form as the Guaranty signed by the Guarantor being replaced
within fifteen (15) days after notice of such action is provided to Borrower. For purposes hereof, Bluerock Residential Growth
REIT, Inc. shall be deemed an acceptable Replacement Guarantor as long as it can demonstrate to Administrative Agent’s reasonable
satisfaction that its publicly reported liquidity is in excess of $15,000,000.00 and it is not in default under any material agreement,
indenture or instrument to which it is a party or by which it is bound.


 


(g)          Any
sale, transfer, lease, assignment, conveyance, financing, lien, encumbrance or other transaction made in violation of Section
7.10 or Section 7.14 above or the Mortgage;


 


(h)          The
entry of any order enjoining or otherwise preventing or declaring invalid or unlawful the construction, occupancy, maintenance,
operation or use of the Project, or any portion thereof, in the manner required by the terms of this Agreement, or of any proceedings
which could or might affect the validity or priority of the lien of the Mortgage or any of the other security for the Loan, or
which could result in a Material Adverse Occurrence;


 


(i)          The
occurrence of the death or legal incompetency of any individual Guarantor (but subject to the curative provisions set forth in
Section 3.1(f));


 


(j)          The
actual filing of any condemnation or administrative proceeding or litigation against the Project or any casualty thereto which
materially impairs the completion of the Work prior to the applicable date required therefor or the full utilization of the Project
once completed;


 




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(k)          The
assignment or attempted assignment of this Agreement by Borrower without Administrative Agent’s prior written consent;


 


(l)          The
filing of formal charges under any federal, state or local law, statute or ordinance for which Borrower’s forfeiture of all
or any portion of the Project is a potential penalty;


 


(m)          The
dissolution of Borrower or any Guarantor without the interests of the same in and to the Project first having been assigned to
a permitted assignee (as reasonably approved by Administrative Agent); provided, however, with respect to any of the matters described
in this clause (m) that are applicable to any Guarantor, such matters shall not constitute an Event of Default if a Replacement
Guarantor acceptable to Administrative Agent executes a Guaranty in substantially the same form as the Guaranty signed by the Guarantor
being replaced within fifteen (15) days after notice of such action is provided to Borrower. For purposes hereof, Bluerock Residential
Growth REIT, Inc. shall be deemed an acceptable Replacement Guarantor as long as it can demonstrate to Administrative Agent’s
reasonable satisfaction that its publicly reported liquidity is in excess of $15,000,000.00 and it is not in default under any
material agreement, indenture or instrument to which it is a party or by which it is bound.


 


(n)          Except
as permitted under Section 7.34 of this Agreement, or as otherwise reasonably approved by Administrative Agent, (i) any
ownership interest in Borrower shall be transferred or assigned, or any security interest or other lien or encumbrance shall be
created in or on any ownership interest in Borrower or in or on the proceeds of or distribution rights with respect to any such
ownership interest; or (ii) any ownership interest in any entity that directly or indirectly owns an ownership interest in Borrower
shall be transferred or assigned, or any security interest or other lien or encumbrance shall be created in or on any ownership
interest in any such entity or in or on the proceeds of or distribution rights with respect to any ownership interest in any such
entity; or


 


(o)          The
occurrence of an “Event of Default” or a default (after expiration of any notice or cure period, if any) under any
of the other Loan Documents. For the avoidance of doubt, in the event of any inconsistency between the parameters of an "Event
of Default" or any notice and cure period under any other Loan Document and an Event of Default or any notice and cure period
hereunder, the parameters hereunder shall control.


 


(p)          Except
in the event of a Force Majeure, a discontinuance of the construction of the Work for a period of twenty (20) consecutive days
(unless otherwise approved by Administrative Agent), or any material failure to adhere to the Construction Schedule, the result
of which may be, in Administrative Agent’s sole judgment, that the Work will not be substantially completed prior to the
Construction Completion Date;


 


(q)          Intentionally
Omitted.


 


(r)          Failure
by Borrower to deposit with Administrative Agent or invest in the Project in the manner permitted herein funds required to maintain
the Loan In Balance within the time and in the manner set forth in Section 3.4(c) or provide the funds required to maintain
the Interest Reserve within the time and manner set forth in Section 5.6;


 




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(s)          The
termination of the Construction Contract without Administrative Agent’s prior written consent, which shall not be unreasonably
withheld, conditioned or delayed;


 


(t)          Borrower
intentionally causes or knowingly permits any of the Work to be performed in a manner which is materially contrary to the Plans
and Specifications or any provisions of this Agreement or the other Loan Documents;


 


SECTION
9.

REMEDIES


 


Upon the occurrence
of any Event of Default and so long as the Event of Default remains uncured, Administrative Agent for the benefit of the Lenders,
in addition to availing itself of any remedies conferred upon it at law or in equity and by the terms of the Notes, the Mortgage
and the other Loan Documents, may pursue any one or more of the following remedies first, concurrently or successively with each
other and with any other available remedies, it being the intent hereof that none of such remedies shall be to the exclusion of
any others:


 


(a)          Take
possession of the Project and complete the Work and do anything necessary or desirable in Administrative Agent’s sole judgment
to fulfill the obligations of Borrower hereunder, including, without limitation, either the right to avail itself of and procure
performance of the Construction Contract, any Subcontracts or any other contract entered into for the performance of all or any
portion of the Work (or any substitute therefor), or to let new or additional contracts with the same Contractor or Subcontractors
or others, and to employ watchmen to protect the Project from injury. Without limiting the generality of the foregoing and for
the purposes aforesaid, Borrower hereby appoints and constitutes Administrative Agent its lawful attorney-in-fact with full power
of substitution (i) to complete the Work in the name of Borrower; (ii) to use portions of the Loans or other funds which may be
reserved, escrowed or set aside for any purposes hereunder at any time to complete the Work; (iii) to make changes in the Plans
and Specifications which shall be reasonably necessary or reasonably desirable to complete the Work; (iv) to retain or employ new
general contractors, subcontractors, architects, engineers and inspectors as shall be required for such purposes; (v) to pay, settle
or compromise all existing bills and claims, which may be liens or security interests or to avoid such bills and claims becoming
liens or security interests against the Project, or as may be necessary or desirable for the completion of the Work or for the
clearance of title; (vi) to execute all applications and certificates in the name of Borrower which may be required by any of the
Loan Documents; (vii) to prosecute and defend all actions or proceedings in connection with the Work; (viii) to take such action
and require such performance as it deems necessary under any of the bonds to be furnished pursuant to the provisions hereof and
to make settlements and compromises with the surety or sureties thereunder, and in connection therewith, to execute instruments
of release and satisfaction; it being understood that the foregoing power of attorney is coupled with an interest and cannot be
revoked. All sums expended by Administrative Agent pursuant to this Section 9 shall be deemed to have been paid to Borrower
and secured by the Mortgage and the other Loan Documents, and shall bear interest at the Default Rate until repaid to Administrative
Agent.


 




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(b)          Make
any protective advance Administrative Agent deems necessary to (i) preserve, maintain, repair, restore or rebuild any Improvements,
(ii) preserve the lien of the Mortgage or the priority thereof, or (iii) enforce this Agreement, the Mortgage and the other Loan
Documents. All sums expended by Administrative Agent pursuant to this Section 9(b) shall be deemed to have been paid to
Borrower and secured by the Mortgage and the other Loan Documents, and shall bear interest at the Default Rate until repaid to
Administrative Agent.


 


(c)          Withhold
further disbursements of proceeds of the Loans and terminate the Commitments.


 


(d)          Declare
the unpaid indebtedness evidenced by the Notes to be immediately due and payable.


 


(e)          Apply
the balance of any deposits made with Administrative Agent toward the repayment of the Loans.


 


SECTION
10.

ADMINISTRATIVE AGENT


 


10.1.          Authorization
and Action. Each Lender hereby appoints and authorizes Administrative Agent to take such action as contractual representative
on such Lender’s behalf and to exercise such powers under this Agreement, the other Loan Documents and a Post-Foreclosure
Plan as are specifically delegated to Administrative Agent by the terms hereof and thereof, together with such powers as are reasonably
incidental thereto. Not in limitation of the foregoing, each Lender authorizes and directs Administrative Agent to enter into the
Loan Documents for the benefit of the Lenders and to exercise the remedies as herein provided. Each Lender hereby agrees that,
except as otherwise set forth herein, any action taken by the Requisite Lenders in accordance with the provisions of this Agreement
or the Loan Documents, and the exercise by the Requisite Lenders of the powers set forth herein or therein, together with such
other powers as are reasonably incidental thereto, shall be authorized and binding upon all of the Lenders. Nothing herein (including
the use of the term “Administrative Agent”) shall be construed to deem Administrative Agent a trustee or fiduciary
for any Lender nor to impose on Administrative Agent duties or obligations other than those expressly provided for herein. At the
request of a Lender, Administrative Agent will forward to such Lender copies or, where appropriate, originals of the documents
delivered to Administrative Agent pursuant to this Agreement or the other Loan Documents. Administrative Agent will also furnish
to any Lender, upon the request of such Lender, a copy of any certificate or notice furnished to Administrative Agent by Borrower
or any other Affiliate of Borrower, pursuant to this Agreement or any other Loan Document not already delivered to such Lender
pursuant to the terms of this Agreement or any such other Loan Document. As to any matters not expressly provided for by the Loan
Documents (including, without limitation, enforcement or collection of any of the Loans) or in a Post-Foreclosure Plan, Administrative
Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting
(and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders (or all of
the Lenders if explicitly required under any other provision of this Agreement), and such instructions shall be binding upon all
Lenders and all holders of any of the Loans; provided, however, that, notwithstanding anything in this Agreement or in a Post-Foreclosure
Plan to the contrary, Administrative Agent shall not be required to take any action which exposes Administrative Agent to personal
liability or which is contrary to this Agreement, any other Loan Document, Applicable Law or a Post-Foreclosure Plan. Borrower
may rely on written amendments or waivers executed by Administrative Agent or acts taken by Administrative Agent as being authorized
by the Lenders or the Requisite Lenders, as applicable, to the extent Administrative Agent does not advise Borrower that it has
not obtained such authorization from the Lenders or the Requisite Lenders, as applicable.


 




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10.2.          Administrative
Agent’s Reliance, Etc. Notwithstanding any other provisions of this Agreement or any other Loan Documents, neither Administrative
Agent nor any of its directors, officers, agents, employees or counsel shall be liable to any of the Lenders for any action taken
or omitted to be taken by it or them under or in connection with this Agreement or a Post-Foreclosure Plan, except for its or their
own gross negligence or willful misconduct as determined by a final nonappealable judgment of a court of competent jurisdiction.
Without limiting the generality of the foregoing, Administrative Agent: (a) may treat the payee of any Note as the holder thereof
until Administrative Agent receives written notice of the assignment or transfer thereof signed by such payee and in form satisfactory
to Administrative Agent; (b) may consult with legal counsel (including its own counsel or counsel for Borrower), independent public
accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith
by it in accordance with the advice of such counsel, accountants or experts; (c) makes no warranty or representation to any Lender
or any other Person and shall not be responsible to any Lender or any other Person for any statements, warranties or representations
made by any Person in or in connection with this Agreement, any other Loan Document or a Post-Foreclosure Plan; (d) shall not have
any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of any of
this Agreement, any other Loan Document or a Post-Foreclosure Plan or the satisfaction of any conditions precedent under this Agreement,
any Loan Document or a Post-Foreclosure Plan on the part of Borrower or other Persons or inspect the property, books or records
of Borrower or any other Person; (e) shall not be responsible to any Lender for the due execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Agreement or any other Loan Document, any other instrument or document furnished pursuant
thereto or any collateral covered thereby or the perfection or priority of any Lien in favor of Administrative Agent on behalf
of the Lenders in any such collateral; and (f) shall incur no liability under or in respect of this Agreement, any other Loan Document
or a Post-Foreclosure Plan by acting upon any notice, consent, certificate or other instrument or writing (which may be by telephone
or telecopy) believed by it to be genuine and signed, sent or given by the proper party or parties.


 


10.3.          Notice
of Defaults. Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of an Unmatured
Default or Event of Default, except with respect to defaults in the payment of principal, interest and fees required to be paid
to Administrative Agent for the account of the Lenders, unless Administrative Agent has received written notice from a Lender or
Borrower referring to this Agreement, describing with reasonable specificity such Unmatured Default or Event of Default and stating
that such notice is a “notice of default.” If any Lender (excluding the Lender which is also serving as Administrative
Agent) becomes aware of any Unmatured Default or Event of Default, it shall promptly send to Administrative Agent such a “notice
of default.” Further, if Administrative Agent receives such a “notice of default,” Administrative Agent shall
give prompt notice thereof to the Lenders. Administrative Agent shall take such action with respect to such Event of Default as
may be requested by the Lenders in accordance with this Section 10.3; provided that unless and until Administrative Agent
has received any such request, Administrative Agent may (but shall not be obligated to) take such action, or refrain from taking
such action, with respect to such Event of Default as it shall deem advisable or in the best interest of the Lenders.


 




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10.4.          Administrative
Agent as Lender. Administrative Agent, as a Lender, shall have the same rights and powers under this Agreement, any other Loan
Document and a Post-Foreclosure Plan as any other Lender and may exercise the same as though it were not Administrative Agent;
and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated, include Administrative
Agent in each case in its individual capacity. Administrative Agent and its Affiliates may each accept deposits from, maintain
deposits or credit balances for, invest in, lend money to, act as trustee under indentures of, serve as financial advisor to, and
generally engage in any kind of business with, Borrower or any other Affiliate thereof as if it were any other bank and without
any duty to account therefor to the other Lenders. Further, Administrative Agent and any Affiliate may accept fees and other consideration
from Borrower for services in connection with this Agreement and otherwise without having to account for the same to the other
Lenders.


 


10.5.          Approvals
of Lenders. All communications from Administrative Agent to any Lender requesting such Lender’s determination, consent,
approval or disapproval (a) shall be given in the form of a written notice to such Lender, (b) shall be accompanied by a description
of the matter or issue as to which such determination, approval, consent or disapproval is requested, or shall advise such Lender
where information, if any, regarding such matter or issue may be inspected, or shall otherwise describe the matter or issue to
be resolved, (c) shall include, if reasonably requested by such Lender and to the extent not previously provided to such Lender,
written materials and a summary of all oral information provided to Administrative Agent by Borrower in respect of the matter or
issue to be resolved, and (d) shall include Administrative Agent’s recommended course of action or determination in respect
thereof. Each Lender shall reply promptly, but in any event within ten (10) days (or such lesser or greater period as may be specifically
required under the Loan Documents or a Post-Foreclosure Plan) of receipt of such communication. Except as otherwise provided in
this Agreement and except with respect to items requiring the unanimous consent or approval of the Lenders pursuant to Section
10.12, unless a Lender shall give written notice to Administrative Agent that it specifically objects to the recommendation
or determination of Administrative Agent (together with a written explanation of the reasons behind such objection) within the
applicable time period for reply, such Lender shall be deemed to have conclusively approved of or consented to such recommendation
or determination.


 




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10.6.          Lender
Credit Decision, Etc. Each Lender expressly acknowledges and agrees that neither Administrative Agent nor any of its officers,
directors, employees, agents, counsel, attorneys-in-fact or other Affiliates has made any representations or warranties as to the
financial condition, operations, creditworthiness, solvency or other information concerning the business or affairs of Borrower
or any other Person or any Property to such Lender and that no act by Administrative Agent hereafter taken, including any review
of the affairs of Borrower, shall be deemed to constitute any such representation or warranty by Administrative Agent to any Lender.
Each Lender acknowledges that it has, independently and without reliance upon Administrative Agent, any other Lender or counsel
to Administrative Agent, or any of their respective officers, directors, employees and agents, and based on the financial statements
of Borrower or any other Affiliate thereof, and inquiries of such Persons, its independent due diligence of the business and affairs
of Borrower and other Persons and the Property, its review of the Loan Documents, a Post-Foreclosure Plan (if and when prepared)
the legal opinions required to be delivered to it hereunder, the advice of its own counsel and such other documents and information
as it has deemed appropriate, made its own credit and legal analysis and decision to enter into this Agreement and the transaction
contemplated hereby. Each Lender also acknowledges that it will, independently and without reliance upon Administrative Agent,
any other Lender or counsel to Administrative Agent or any of their respective officers, directors, employees and agents, and based
on such review, advice, documents and information as it shall deem appropriate at the time, continue to make its own decisions
in taking or not taking action under the Loan Documents and a Post-Foreclosure Plan. Except for notices, reports and other documents
and information expressly required to be furnished to the Lenders by Administrative Agent under this Agreement, any of the other
Loan Documents or a Post-Foreclosure Plan, Administrative Agent shall have no duty or responsibility to provide any Lender with
any credit or other information concerning the business, operations, property, financial and other condition or creditworthiness
of Borrower or any other Affiliate thereof which may come into possession of Administrative Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or other Affiliates. Each Lender acknowledges that Administrative Agent’s legal counsel
in connection with the transactions contemplated by this Agreement or a Post-Foreclosure Plan is only acting as counsel to Administrative
Agent and is not acting as counsel to such Lender.


 


10.7.          Indemnification
of Administrative Agent by Lenders. Each Lender agrees to indemnify Administrative Agent (to the extent not reimbursed by Borrower
and without limiting the obligation of Borrower to do so, if any) pro rata in accordance with such Lender’s respective Commitment
Percentage, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever which may at any time be imposed on, incurred by, or asserted against
Administrative Agent (in its capacity as Administrative Agent but not as a Lender) in any way relating to or arising out of the
Loan Documents, a Post-Foreclosure Plan, any transaction contemplated hereby or thereby or any action taken or omitted by Administrative
Agent under the Loan Documents (collectively, “Indemnifiable Amounts”); provided, however, that no Lender shall
be liable for any portion of such Indemnifiable Amounts to the extent resulting from Administrative Agent’s gross negligence
or willful misconduct as determined by a final nonappealable judgment of a court of competent jurisdiction or if Administrative
Agent fails to follow the written direction of the Requisite Lenders, unless such failure is pursuant to the reasonable advice
of counsel of which the Lenders have received notice. Without limiting the generality of the foregoing but subject to the preceding
provision, each Lender agrees to reimburse Administrative Agent (to the extent not reimbursed by Borrower and without limiting
the obligation of Borrower to do so, if any) promptly upon demand for its ratable share of any out-of-pocket expenses (including
reasonable counsel fees of the counsel(s) of Administrative Agent’s own choosing) incurred by Administrative Agent in connection
with the preparation, negotiation, execution, administration or enforcement of, or legal advice with respect to the rights or responsibilities
of the parties under, the Loan Documents, a Post-Foreclosure Plan, any suit or action brought by Administrative Agent to enforce
the terms of the Loan Documents and/or collect any Loans, any “lender liability” suit or claim brought against Administrative
Agent and/or the Lenders, and any claim or suit brought against Administrative Agent and/or the Lenders arising under any Environmental
Laws. Such out-of-pocket expenses (including counsel fees) shall be advanced by the Lenders on the request of Administrative Agent
notwithstanding any claim or assertion that Administrative Agent is not entitled to indemnification hereunder upon receipt of an
undertaking by Administrative Agent that Administrative Agent will reimburse the Lenders if it is actually and finally determined
by a court of competent jurisdiction that Administrative Agent is not so entitled to indemnification. The agreements in this Section
10.7 shall not limit the terms of Section 3.7 and shall survive the payment of the Loans and all other amounts
payable hereunder or under the other Loan Documents and the termination of this Agreement. If Borrower shall reimburse Administrative
Agent for any Indemnifiable Amount following payment by any Lender to Administrative Agent in respect of such Indemnifiable Amount
pursuant to this Section 10.7, Administrative Agent shall share such reimbursement on a ratable basis with each Lender making
any such payment.


 




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10.8.          Successor
Administrative Agent. On ten (10) Business Days prior written notice to Lenders and Borrower, Administrative Agent may resign
at any time as Administrative Agent under the Loan Documents by giving written notice thereof to the Lenders and Borrower. Upon
any such resignation, the Requisite Lenders shall have the right to appoint a successor Administrative Agent, which shall be a
Lender, if any Lender shall be willing to serve, and otherwise shall be a commercial bank having total combined assets of at least
Five Billion Dollars ($5,000,000,000). If no successor Administrative Agent shall have been so appointed in accordance with the
immediately preceding sentence, and shall have accepted such appointment, within thirty (30) days after the resigning Administrative
Agent’s giving of notice of resignation, then the resigning Administrative Agent may, on behalf of the Lenders, appoint a
successor Administrative Agent, which shall be a Lender, if any Lender shall be willing to serve, and otherwise shall be a commercial
bank having total combined assets of at least Five Billion Dollars ($5,000,000,000). Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor Administrative Agent, such successor Administrative Agent, shall thereupon succeed
to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations under the Loan Documents as Administrative Agent. If
no successor agent has accepted appointment as Administrative Agent by the date which is forty-five (45) days following a retiring
Administrative Agent’s notice of resignation, the retiring Administrative Agent’s resignation shall nevertheless thereupon
become effective and the Lenders shall perform all of the duties of Administrative Agent hereunder until such time, if any, as
the Requisite Lenders appoint a successor agent as provided for above. After any Administrative Agent’s resignation hereunder
as Administrative Agent, the provisions of this Section 10.8 and all provisions of this Agreement relating to Loans shall
continue to inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent under the
Loan Documents. Upon any change in Administrative Agent under this Agreement, the resigning Administrative Agent shall execute
such assignments of and amendments to the Loan Documents as may be necessary to substitute the successor Administrative Agent for
the resigning Administrative Agent. 


 


10.9.          Other
Loans by Lenders to Borrower. The Lenders agree that one or more of them may now or hereafter have other loans to Borrower
or one or more Affiliates of Borrower which are not subject to this Agreement. The Lenders agree that the Lender(s) which may have
such other loan(s) to Borrower and such Affiliates may collect payments on such loan(s) and may secure such loan(s) (so long as
such loan does not itself expressly violate this Agreement). Further, the Lenders agree that the Lender(s) which may have such
other loan(s) to Borrower and such Affiliates shall have no obligation to attempt to collect payments under the Loans in preference
and priority over the collection and/or enforcement of such other loan(s).


 




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10.10.         Request
for Administrative Agent Action. Administrative Agent and the Lenders acknowledge that in the ordinary course of business of
Borrower, (a) the Property may be subject to a condemnation or eminent domain proceeding (a “Taking”), (b) Borrower
may desire to enter into easements or other agreements affecting the Real Property, or (c) take other actions or enter into other
agreements in the ordinary course of business which similarly require the consent, approval or agreement of Administrative Agent.
In connection with the foregoing, the Lenders hereby expressly authorize Administrative Agent to (x) execute, releases of liens
in connection with any Taking or after repayment of the Loans, (y) execute consents or subordinations in form and substance satisfactory
to Administrative Agent in connection with any easements or agreements affecting the Real Property, or (z) execute consents, approvals,
or other agreements in form and substance satisfactory to Administrative Agent in connection with such other actions or agreements
as may be necessary in the ordinary course of Borrower’s business.


 


10.11.         Assignments/Participations.


 


(a)          Any
Lender may make, carry or transfer Loans at, to or for the account of any of its branch offices or the office of an Affiliate of
such Lender except to the extent such transfer would result in increased costs to Borrower.


 


(b)          Any
Lender may at any time grant to one or more banks or other financial institutions (each a “Participant”) participating
interests in its Commitment or the Obligations owing to such Lender; provided, however, (i) any such participating interest must
be for a constant and not a varying percentage interest, (ii) no Lender may grant a participating interest in its Commitment, or
if any of the Commitments have been terminated, the aggregate outstanding principal balance of Notes held by it, in an amount less
than Five Million Dollars ($5,000,000.00) or integral multiples of One Million Dollars ($1,000,000.00) in excess thereof, and (iii)
after giving effect to any such participation by a Lender, the amount of its Commitment, or if any of the Commitments have been
terminated, the aggregate outstanding principal balance of Notes held by it, in which it has not granted any participating interests
must be equal to Five Million Dollars ($5,000,000.00) and integral multiples of One Million Dollars ($1,000,000.00) in excess thereof.
No Participant shall have any rights or benefits under this Agreement or any other Loan Document. In the event of any such grant
by Lender of a participating interest to a Participant, such Lender shall remain responsible for the performance of its obligations
hereunder, and Borrower and Administrative Agent shall continue to deal solely and directly with such Lender in connection with
such Lender’s rights and obligations under this Agreement. Any agreement pursuant to which any Lender may grant such a participating
interest shall provide that such Lender shall retain the sole right and responsibility to enforce the obligations of Borrower hereunder
including, without limitation, the right to approve any amendment, modification or waiver of any provision of this Agreement; provided,
however, such Lender may agree with the Participant that it will not, without the consent of the Participant, agree to (i) except
as otherwise permitted in this Agreement, increase or extend the term or extend the time or waive any requirement for the reduction
of termination of, such Lender’s Commitment, (ii) extend the date fixed for the payment of principal of or interest on the
Loans or portions thereof owing to such Lender, (iii) reduce the amount of any such payment of principal, or (iv) reduce the rate
at which interest is payable thereon. An assignment or other transfer which is not permitted by Section 10.11(c) below shall
be given effect for purposes of this Agreement only to the extent of a participating interest granted in accordance with this Section
10.11(b). The selling Lender shall notify Administrative Agent and Borrower of the sale of any participation hereunder and,
if requested by Administrative Agent, certify to Administrative Agent that such participation is permitted hereunder.


 




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(c)          Any
Lender may with the prior written consent of Administrative Agent (which consent shall not be unreasonably withheld or delayed),
assign to one or more Eligible Assignees (each an “Assignee”) all or a portion of its Commitment and its other
rights and obligations under this Agreement and the Notes; provided, however, (i) any partial assignment of a Commitment shall
be in an amount at least equal to Five Million Dollars ($5,000,000.00) and integral multiples of One Million Dollars ($1,000,000.00)
in excess thereof and after giving effect to such partial assignment the assigning Lender retains a portion of the Commitment so
assigned, or if any of the Commitments have been terminated, holds Notes having an aggregate outstanding principal balance, of
at least Five Million Dollars ($5,000,000.00) and integral multiples of One Million Dollars ($1,000,000.00) in excess thereof (provided,
however, the conditions set forth in this Section 10.11(c) (i) shall not apply to any full assignment by any Lender of its
Commitment); and (ii) each such assignment shall be effected by means of an Assignment and Acceptance Agreement. Upon execution
and delivery of such instrument and payment by such Assignee to such transferor Lender of an amount equal to the purchase price
agreed between such transferor Lender and such Assignee, such Assignee shall be deemed to be a Lender party to this Agreement as
of the effective date of the Assignment and Acceptance Agreement and shall have all the rights and obligations of a Lender with
a Commitment as set forth in such Assignment and Acceptance Agreement, and the transferor Lender shall be released from its obligations
hereunder to a corresponding extent, and no further consent or action by any party shall be required. Upon the consummation of
any assignment pursuant to this Section 10.11(c), the transferor Lender, Administrative Agent and Borrower shall make appropriate
arrangements so that new Notes are issued to the Assignee and such transferor Lender, as appropriate. In connection with any such
assignment, the transferor Lender shall pay to Administrative Agent an administrative fee for processing such assignment in the
amount of Three Thousand Five Hundred Dollars ($3,500.00).


 


(d)          Administrative
Agent shall maintain at the Principal Office a copy of each Assignment and Acceptance Agreement delivered to and accepted by it
and register for the recordation of the names and addresses of the Lenders and the Commitment of each Lender from time to time
(the “Register”). Administrative Agent shall give each Lender and Borrower notice of the assignment by any Lender
of its rights as contemplated by this Section 10.11(d). Borrower, Administrative Agent and the Lenders may treat each Person
whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register and copies of each
Assignment and Acceptance Agreement shall be available for inspection by Borrower or any Lender at any reasonable time and from
time to time upon reasonable prior notice to Administrative Agent. Upon its receipt of an Assignment and Acceptance Agreement executed
by an assigning Lender, together with each Note subject to such assignment, Administrative Agent shall, if such Assignment and
Acceptance Agreement has been completed and if Administrative Agent receives the administrative fee described in Section 10.11(c)
above, (i) accept such Assignment and Acceptance Agreement, (ii) record the information contained therein in the Register
and (iii) give prompt notice thereof to Borrower.


 




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(e)          In
addition to the assignments and participations permitted under the foregoing provisions of this Section 10.11(e), any Lender
may assign and pledge all or any portion of its Loans and its Note to any Federal Reserve Bank as collateral security pursuant
to Regulation A and any Operating Circular issued by such Federal Reserve Bank, and such Loans and Notes shall be fully transferable
as provided therein. No such assignment shall release the assigning Lender from its obligations hereunder.


 


(f)          A
Lender may furnish any information concerning Borrower, any other Obligor or any of their respective Affiliates in the possession
of such Lender from time to time to Assignees and Participants (including prospective Assignees and Participants) subject to compliance
with Section 11.7.


 


(g)          Anything
in this Section 10.11 to the contrary notwithstanding, no Lender may assign or participate any interest in any Loan held
by it hereunder to Borrower, any other Obligor or any of their respective Affiliates.


 


(h)          Each
Lender agrees that, without the prior written consent of Borrower and Administrative Agent, it will not make any assignment hereunder
in any manner or under any circumstances that would require registration or qualification of, or filings in respect of, any Loan
or Note under the Securities Act or any other securities laws of the United States of America or of any other jurisdiction.


 


(i)          Notwithstanding
anything to the contrary contained herein, if at any time Administrative Agent assigns all of its Commitment and interest in the
Loan pursuant to this Section 10.11, Administrative Agent may, upon thirty (30) days’ notice to Borrower and the Lenders,
resign as the Administrative Agent. In the event of any such resignation as the Administrative Agent, Lenders shall be entitled
to appoint from among the Lenders a successor Administrative Agent hereunder; provided, however, that no failure
by Lenders to appoint any such successor shall affect the resignation of Administrative Agent as the Administrative Agent.


 


10.12.         Approval
by Lenders.


 


(a)          Upon
the termination or reduction to zero (0) of all of the Commitments and payment and satisfaction in full of all of the Obligations
hereunder and under the other Loan Documents, Lenders hereby expressly authorize Administrative Agent to release any liens arising
under the Loan Documents.


 


(b)          Administrative
Agent and the Lenders acknowledge that, in the ordinary course of Borrower’s construction, ownership, maintenance and operation
of the Property, Borrower may request Administrative Agent’s consent or approval to enter into customary easements and other
customary agreements or to take other actions in the ordinary course of Borrower’s business operations. Provided such Borrower
requests are in each instance consistent and compatible with the Project, and subject in each instance to the restrictions and
limitations set forth in this Section 10.12 (or any other provision of the Loan Documents which expressly requires the consent
of the Requisite Lenders or the Lenders), Lenders hereby expressly authorize Administrative Agent to consent to and approve (or
to condition consent or approval or to deny) such requests in form and substance satisfactory to Administrative Agent.


 




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(c)          Unless
the consent of all of the Lenders is required pursuant to Section 10.12(d) (or any other provision of the Loan Documents
which expressly requires the consent of all of the Lenders), Requisite Lenders shall have the right to amend the terms of the Loan
Documents, and to consent to and approve Borrower requests that Lenders have not otherwise expressly authorized Administrative
Agent to consent to and approve, in each instance by a writing signed by the Requisite Lenders or Administrative Agent at the written
direction of all of the Requisite Lenders.


 


(d)          Notwithstanding
anything to the contrary in any of the Loan Documents, no amendment, waiver, consent or approval shall, unless in writing and signed
by all of the Lenders or Administrative Agent at the written direction of all of the Lenders, do any of the following: (i) extend
or increase the Commitments (or any component thereof) of the Lenders or subject the Lenders to any additional obligations; (ii) reduce
or forgive the amount of any fees, costs or expenses payable under any Loan Document; (iii) postpone any date fixed for any
payment of any principal of, or interest on, any Loans or any other Obligations; (iv) modify the definition of the term “Requisite
Lenders;” (v) release or limit any Guarantor from its obligation under the Guaranty; (vi) reduce or forgive the
principal amount of any Loan or the rate of interest thereon; (vii) modify any prorata sharing of payments to be received
by any Lender hereunder; (viii) extend Maturity Date (other than in accordance with Section 3.5); (ix) modify
this Section 10.12; or (x) except as provided in Section 10.10 and the first sentence of Section 10.12(a),
release any Collateral.


 


(e)          Further,
no amendment, waiver or consent unless in writing and signed by Administrative Agent, in addition to the Lenders required hereinabove
to take such action, shall affect the rights or duties of Administrative Agent under this Agreement or any of the other Loan Documents.


 


(f)          No
waiver shall extend to or affect any obligation not expressly waived or impair any right consequent thereon and any amendment,
waiver, consent or approval shall be effective only in the specific instance and for the specific purpose set forth therein. No
course of dealing or delay or omission on the part of Administrative Agent or any Lender in exercising any right shall operate
as a waiver thereof or otherwise be prejudicial thereto. Except as otherwise explicitly provided for herein or in any other Loan
Document, no notice to or demand upon Borrower shall entitle Borrower to any other or further notice or demand in similar or other
circumstances.


 




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(g)          If,
in connection with any proposed amendment, modification, waiver, approval or termination requiring the consent of all Lenders,
the consent of the Requisite Lenders is obtained, but the consent of other Lenders whose consent is required is not obtained (any
such Lender whose consent is not obtained being referred to as a “Non-Consenting Lender”), then, so long as
Administrative Agent is not a Non-Consenting Lender, Administrative Agent and/or a Person or Persons reasonably acceptable to Administrative
Agent shall have the right to purchase (such purchaser, a “Purchasing Party”) from such Non-Consenting Lenders,
and such Non-Consenting Lenders agree that they shall, upon Administrative Agent’s request, sell and assign to the Purchasing
Party, all of the Loans of such Non-Consenting Lenders for an amount equal to the principal balance of all such Loans held by such
Non-Consenting Lenders and all accrued interest, fees, expenses and other amounts then due with respect thereto through the date
of sale, such purchase and sale to be consummated pursuant to an executed Assignment and Acceptance Agreement. If there is more
than one Purchasing Party resulting in greater funds than are necessary, the amount funded by each such Purchasing Party shall
be reduced if necessary, so that each Purchasing Party’s amount funded is in proportion to the Commitments of all of the
Purchasing Lenders exercising its right to purchase the Non-Consenting Lenders’ Loan (calculated without regard to the Commitment
of the Non-Consenting Lender and any other Lender who has not elected to fund).


 


10.13.         Post
Foreclosure Plans. If all or any portion of the Collateral is acquired by Administrative Agent as a result of a foreclosure
or the acceptance of a deed or assignment in lieu of foreclosure, or is retained in satisfaction of all or any part of the Obligations
under the Loan Documents, the title to any such Collateral, or any portion thereof, shall be held in the name of Administrative
Agent or a nominee or Affiliate of Administrative Agent, as agent, for the ratable benefit of all Lenders in accordance with their
respective Commitment Percentage. Administrative Agent and all Lenders hereby expressly waive and relinquish any right of partition
with respect to any Collateral so acquired. After any Collateral is acquired, Administrative Agent may appoint and retain one or
more Persons experienced in the management, leasing, sale and/or dispositions of similar properties. After consulting with the
Person(s), if any, Administrative Agent shall prepare a recommended course of action for such Collateral (a “Post-Foreclosure
Plan”), which shall be subject to the approval of the Requisite Lenders. In accordance with the approved Post-Foreclosure
Plan, Administrative Agent shall manage, operate, repair, administer, complete, construct, restore or otherwise deal with the Collateral
acquired, and shall administer all transactions relating thereto, including, without limitation, employing a management agent,
leasing agent and other agents, contractors and employees, including agents for the sale of such Collateral, and the collecting
of rents and other sums from such Collateral and paying the expenses of such Collateral. Actions taken by Administrative Agent
with respect to the Collateral, which are not specifically provided for in the approved Post-Foreclosure Plan or reasonably incidental
thereto, shall require the written consent of the Requisite Lenders by way of supplement to such Post-Foreclosure Plan.


 


(a)          Upon
demand therefor from time to time, each Lender will within two (2) Business Days after request, contribute its share (based on
its Commitment Percentage) of all reasonable costs and expenses incurred by Administrative Agent pursuant to the approved Post-Foreclosure
Plan in connection with the construction, operation, management, maintenance, leasing and sale of such Collateral. In addition,
Administrative Agent shall render or cause to be rendered to each Lender, on a monthly basis, an income and expense statement for
such Collateral, and each Lender shall promptly contribute its Commitment Percentage of any operating loss for such Collateral,
and such other expenses and operating reserves as Administrative Agent shall deem reasonably necessary pursuant to and in accordance
with the approved Post-Foreclosure Plan. To the extent there is net operating income from such Collateral, Administrative Agent
shall, in accordance with the approved Post-Foreclosure Plan, determine the amount and timing of distributions to Lenders. All
such distributions shall be made to Lenders in accordance with their respective Commitment Percentage.


 




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(b)          Lenders
acknowledge and agree that if title to any Collateral is obtained by Administrative Agent or its nominee, such Collateral will
not be held as a permanent investment but will be liquidated as soon as practicable. Administrative Agent shall undertake to sell
such Collateral, at such price and upon such terms and conditions as the Required Lenders reasonably shall determine to be most
advantageous to Lenders. Any purchase money mortgage or deed of trust taken in connection with the disposition of such Collateral
in accordance with the immediately preceding sentence shall name Administrative Agent, as agent for the Lenders, as the beneficiary
or mortgagee. In such case, Administrative Agent and Lenders shall enter into an agreement with respect to such purchase money
mortgage or deed of trust defining the rights of Lenders in the same Commitment Percentage as provided hereunder, which agreement
shall be in all material respects similar to this Article insofar as the same is appropriate or applicable.


 


SECTION
11.

MISCELLANEOUS


 


11.1.          Additional
Indebtedness. If any advances or payments made by Lenders pursuant to this Agreement or any other Loan Document, together with
disbursements of the Loans, shall exceed the aggregate face amount of the Notes, all such advances and payments shall constitute
additional indebtedness secured by the Mortgage and all other security for the Loans, and shall bear interest at the applicable
interest rate from the date advanced until paid. Additionally, if an Event of Default shall occur, so long as such Event of Default
remains uncured, Administrative Agent may, but shall not be obligated to, take any and all actions to cure such default, and all
amounts expended in so doing, all Loan Expenses and all other amounts paid or advanced by Administrative Agent and/or the Lenders
pursuant to the Loan Documents, and all other amounts advanced by Administrative Agent in connection with the performance of the
Work or preserving any security for the Loans, shall constitute additional advances of the Loans, shall be secured by the Mortgage
and all other security for the Loans, and shall bear interest at the Default Rate from the date advanced until paid.


 


11.2.          Additional
Acts. Borrower shall, upon request, execute and deliver such further instruments and documents and do such further acts and
things as may be reasonably required to provide to Administrative Agent the evidence of and security for the Loan contemplated
by this Agreement provided, however, that, the foregoing notwithstanding, the Borrower shall not be required to do any further
act that has the effect of (a) changing the economic terms of the Loan, as set forth in the Loan Documents, or (b) imposing upon
Borrower or any Guarantor greater liability than as set forth and described in the Loan Documents.


 


11.3.          Loan
Agreement Governs. In the event of any conflict between any provision of this Agreement and any provision of any other Loan
Document, the provision of this Agreement shall govern; provided, however, that the provisions of all of the Loan Documents shall
be construed as an integrated set of provisions governing the Loan and, accordingly, shall be interpreted and construed liberally
to give the maximum validity, enforceability and effect to all of such provisions to the extent practical.


 




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11.4.          Amendment;
Waiver; Approval. This Agreement shall not be amended, modified or supplemented without the written agreement of Borrower,
Administrative Agent and Lenders at the time of such amendment, modification or supplement. No waiver of any provision of this
Agreement or any of the other Loan Documents shall be effective unless set forth in writing signed by the party making such waiver,
and any such waiver shall be effective only to the extent therein set forth. Failure by Administrative Agent to insist upon full
and prompt performance of any provisions of this Agreement or any of the other Loan Documents, or to take action in the event of
any breach of any such provision or upon the occurrence of any Event of Default, shall not constitute a waiver of any rights of
Administrative Agent and/or Lenders, and Administrative Agent and/or Lenders may at any time thereafter exercise all available
rights and remedies with respect to such breach or Event of Default. Receipt by Administrative Agent of any instrument or document
shall not constitute or be deemed to be an approval thereof. Any approvals required under any of the other Loan Documents must
be in writing, signed by Administrative Agent and directed to Borrower.


 


11.5.          Notice.
All notices or other written communications hereunder shall be deemed to have been properly given (a) upon delivery, if delivered
in person, (b) one (1) Business Day after having been deposited for overnight delivery with any reputable overnight courier
service, (c) three (3) Business Days after having been deposited in any post office or mail depository regularly maintained
by the U.S. Postal Service and sent by registered or certified mail, postage prepaid, return receipt requested; or (d) upon confirmed
receipt, if delivered by facsimile or electronic mail, addressed to the addresses set forth below in this Section 11.5 or
as such party may from time to time designate by written notice to the other parties. Any party by notice to the others in the
manner provided herein may designate additional or different addresses for subsequent notices or communications:


 


	
        
	To Administrative Agent:	 	The PrivateBank and Trust Company
	 	 	 	120 S. LaSalle Street
	 	 	 	Chicago, Illinois  60603
	 	 	 	Attn:  Commercial Real Estate
	 	 	 	 
	 	 	 	And
	 	 	 	 
	 	 	 	The PrivateBank and Trust Company
	 	 	 	Atlanta Financial Center
	 	 	 	3343 Peachtree Road
	 	 	 	Atlanta, Georgia  30326
	 	 	 	Attn: Brad Barton
	 	 	 	Email: BBarton@theprivatebank.com
	 	 	 	 
	 	With a copy to:	 	Miller & Martin PLLC
	 	 	 	1180 West Peachtree Street NW
	 	 	 	Suite 2100
	 	 	 	Atlanta, Georgia  30309
	 	 	 	Attn: Charles A. Brake, Jr., Esq.
	 	 	 	Fax:  404-962-6347
	 	 	 	Email: charlie.brake@millermartin.com


 




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	 	To Borrower:	 	CB Owner, LLC
	 	 	 	c/o Catalyst Development Partners
	 	 	 	880 Glenwood Avenue, Suite H
	 	 	 	Atlanta, Georgia 30316
	 	 	 	Attn: Mr. Rob Meyer
	 	 	 	Fax:  404-890-5681
	 	 	 	Email: Robm@catalystdp.com
	 	 	 	 
	 	  and:	 	c/o Bluerock Real Estate, L.L.C.
	 	 	 	712 Fifth Avenue, 9th Floor
	 	 	 	New York, NY  10019
	 	 	 	Attn:  Jordan Ruddy and Michael Konig, Esq.
	 	 	 	Fax: 646-278-4220
	 	 	 	Email: jruddy@bluerockre.com;  
	 	 	 	 mkonig@bluerockre.com
	 	 	 	 
	 	With a copy to:	 	Nelson Mullins Riley & Scarborough LLP
	 	 	 	201 17th Street NW, Suite 1700
	 	 	 	Atlanta, Georgia  30363
	 	 	 	Attn: Eric R. Wilensky, Esq.
	 	 	 	Fax:  404-322-6050
	 	 	 	Email: eric.wilensky@nelsonmullins.com


 


11.6.          Successors
and Assigns of Borrower. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, except that Borrower may not assign or otherwise transfer any of its rights or obligations
under this Agreement without the prior written consent of all Lenders and any such assignment or other transfer to which all of
the Lenders have not to consented shall be null and void.


 


11.7.          Confidentiality.
Except as otherwise provided by Applicable Law, Administrative Agent and each Lender shall utilize all non-public information obtained
pursuant to the requirements of this Agreement which has been identified as confidential or proprietary by Borrower in accordance
with its customary procedure for handling confidential information of this nature to prevent improper disclosure (including disclosure
to competitors of Borrower) and in accordance with safe and sound banking practices but in any event may make disclosure: (a) to
any of their respective Affiliates (provided they shall be obligated to keep such information confidential in accordance with the
terms of this Section 11.7); (b) as reasonably requested by any bona fide Assignee, Participant or other transferee in connection
with the contemplated transfer of any Commitment or participations therein as permitted hereunder (provided they shall be obligated
to keep such information confidential in accordance with the terms of this Section 11.7); (c) as required or requested by
any Governmental Authority or representative thereof or pursuant to legal process or in connection with any legal proceedings;
(d) to Administrative Agent’s or such Lender’s independent auditors and other professional advisors (provided they
shall be obligated to maintain the confidential nature of the information); (e) after the happening and during the continuance
of an Event of Default, to any other Person, in connection with the exercise by Administrative Agent or the Lenders of rights hereunder
or under any of the other Loan Documents (provided they shall be obligated to maintain the confidential nature of the information);
and (f) to the extent such information (i) becomes publicly available other than as a result of a breach of this Section 11.7
or (ii) becomes available to Administrative Agent or any Lender on a non-confidential basis from a source other than Borrower,
any other Obligor, or any of their respective subsidiaries or any of their respective Affiliates.


 




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11.8.          Governing
Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Georgia.


 


11.9.          Indemnity
by Borrower. To the fullest extent permitted by law, Borrower agrees to defend (with counsel reasonably satisfactory to Administrative
Agent), protect, indemnify and hold harmless Lenders and Administrative Agent, any parent corporation, affiliated corporation or
subsidiary of Administrative Agent and the Lenders and Administrative Agent, and each of their respective officers, directors,
employees, attorneys and agents (each, an “Indemnified Party”) from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, claims, costs and expenses of any kind or nature (including, without limitation,
the disbursements and the reasonable fees of counsel for each Indemnified Party thereto, which shall also include, without limitation,
reasonable attorneys’ fees and costs actually incurred at standard hourly rates (without regard to any statutory attorneys'
fees provisions), which may be imposed on, incurred by, or asserted against, any Indemnified Party (whether direct, indirect or
consequential and whether based on any federal, state or local laws or regulations, including, without limitation, securities,
environmental laws and commercial laws and regulations, under common law or in equity, or based on contract or otherwise) in any
manner relating to or arising out of this Agreement or any of the Loan Documents, or any act, event or transaction related or attendant
thereto, the preparation, execution and delivery of this Agreement, the Notes and the Loan Documents, the making or issuance and
management of the Loans, the use or intended use of the proceeds of the Loans and the enforcement of Lenders’ rights and
remedies under this Agreement, the Notes, the Loan Documents, any other instruments and documents delivered hereunder or thereunder;
provided, however, that Borrower shall not have any obligation hereunder to any Indemnified Party with respect to matters caused
by or resulting from the willful misconduct or gross negligence of any such Indemnified Party. To the extent that the undertaking
to indemnify set forth in the preceding sentence may be unenforceable because it violates any law or public policy, Borrower shall
satisfy such undertaking to the maximum extent permitted by Applicable Law. Any liability, obligation, loss, damage, penalty, cost
or expense covered by this indemnity shall be paid to such Indemnified Party within five (5) Business Days of written demand, and
failing prompt payment, together with interest thereon at the Default Rate from the date incurred by such Indemnified Party until
paid by Borrower, shall be added to the obligations of Borrower evidenced by the Notes and secured by the collateral securing the
Loans. This indemnity is not intended to excuse Administrative Agent and the Lenders from performing hereunder. The provisions
of this Section 11.9 shall survive the closing of the Loans, the satisfaction and payment of the Notes and any cancellation
of this Loan Agreement. Borrower shall also pay, and hold Administrative Agent and the Lenders harmless from, any and all claims
of any brokers, finders or agents claiming a bona fide right to any fees in connection with arranging the Loans as a result of
any action by or agreement with Borrower. Notwithstanding the foregoing, Borrower shall have no obligation to indemnify (i) Administrative
Agent with respect to Administrative Agent’s failure to disclose information (as required herein) to the Lenders in connection
with any syndication of the Loan or Administrative Agent's failure to comply with its duties and obligations set forth herein or
in the other Loan Documents, or (ii) any Lender with respect to its or another Lender’s failure to comply with its duties
and obligations set forth herein or in the other Loan Documents.


 




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11.10.         Administrative
Agent’s Representatives. Administrative Agent, at Borrower’s expense, shall have the right to engage personnel
in connection with the negotiation, documentation, administration and servicing of the Loans, including without limitation, the
Consultant, to (i) review and approve the Plans and Specifications, (ii) review and approve Borrower’s Budget, (iii)
conduct inspections of the Work and report on the progress of construction thereof, (iv) review and approve all change orders,
(v) review and approve applications for disbursements and accompanying documents, (vi) issue reports and certificates to Administrative
Agent, (vii) inspect the structural, mechanical, electrical, plumbing, HVAC and roof systems constituting the Work, (viii) determine
whether the Work has been completed in accordance with the Plans and Specifications, and (ix) provide other services as requested
by Lender, and Borrower shall fully cooperate with the Consultant and other personnel in all reasonable respects in connection
therewith, subject to the provisions of this Agreement. Notwithstanding anything contained in this Agreement to the contrary, all
inspections of the Work made by Administrative Agent, the Consultant or their respective agents, employees and designees shall
be solely for Administrative Agent’s own information and shall not be deemed to have been made for or on account of Borrower
or any other party. Except for any liability or responsibility resulting from the gross negligence, willful misconduct or failure
of Administrative Agent or any Lender to comply with the provisions of this Agreement or any other Loan Document, Borrower hereby
specifically relieves Administrative Agent and/or the Lenders of any and all liability or responsibility relating in any way whatsoever
to the construction of the Project, including but not limited to, the Work, the material or labor supplied in connection therewith,
and any errors, inconsistencies or other defects in the Project or the Plans and Specifications.


 


11.11.         Rules
of Construction. Borrower, Administrative Agent and the Lenders, and their respective legal counsel, have participated in the
drafting of this Agreement, and accordingly the general rule of construction to the effect that any ambiguities in a contract are
to be resolved against the party drafting the contract shall not be employed in the construction and interpretation of this Agreement.


 


11.12.         Headings.
The titles and headings of the sections and paragraphs of this Agreement have been inserted as a matter of convenience of reference
only and shall not control or affect the meaning or construction of any of the terms or provisions of this Agreement.


 


11.13.         No
Partnership or Joint Venture. Lenders and Administrative Agent, by executing and performing this Agreement shall not become
a partner or joint venturer with Borrower or any of its associates or Affiliates and all inspections of the Property herein provided
for are for the sole benefit of Lenders and Administrative Agent.


 


11.14.         Time
is of the Essence. Time is of the essence of the payment of all amounts due Administrative Agent and Lenders under the Loan
Documents and performance and observance by Borrower, Administrative Agent and Lenders of each covenant, agreement, provision and
term of this Agreement and the other Loan Documents.


 




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11.15.         Invalid
Provisions. In the event that any provision of this Agreement is deemed to be invalid by reason of the operation of law, or
by reason of the interpretation placed thereon by any administrative agency or any court, Borrower and Administrative Agent shall
negotiate an equitable adjustment in the provisions of the same in order to effect, to the maximum extent permitted by law, the
purpose of this Agreement and the validity and enforceability of the remaining provisions, or portions or applications thereof,
shall not be affected thereby and shall remain in full force and effect.


 


11.16.         Acts
by Lenders. Notwithstanding anything herein contained to the contrary, Lenders will not be required to make any disbursement
or perform any other act under this Agreement if, as a result thereof, Lenders will violate any law, statute, ordinance, rule,
regulation or judicial decision applicable thereto.


 


11.17.         Offset.
Without limitation of any other right or remedy of Administrative Agent hereunder or provided by law, any indebtedness relating
to the Property or its operation and now or hereafter owing to Borrower by Administrative Agent (including, without limitation,
any amounts on deposit in any demand, time, savings, passbook or like account maintained by Borrower with Administrative Agent)
may be offset and applied by Administrative Agent hereunder, or under the Notes, the Mortgage or any of the other Loan Documents.


 


11.18.         Binding
Provisions. The covenants, warranties, agreements, obligations, liabilities and responsibilities of Borrower, Administrative
Agent and Lenders under this Agreement shall be binding upon and enforceable against such party and their respective legal representatives,
administrators, successors and permitted assigns.


 


11.19.         Counterparts.
This Agreement may be executed in counterparts, and all said counterparts when taken together shall constitute one and the same
Agreement.


 


11.20.         No
Third Party Beneficiary. This Agreement is only for the benefit of the parties hereto and their permitted successors and assigns.
No other Person or entity shall be entitled to rely on any matter set forth herein without the prior written consent of such parties.


 


11.21.         Publicity.
Subject to compliance with Applicable Laws, Administrative Agent reserves the right to publicize the making of the Loan in any
manner it deems appropriate. So long as the Loans are outstanding, Borrower will identify the Lenders as Borrower’s lenders
on any sign for the Project erected by Borrower.


 




    80 


     

    

 


11.22.         JURISDICTION
AND VENUE. BORROWER HEREBY AGREES THAT ALL ACTIONS OR PROCEEDINGS INITIATED BY BORROWER AND ARISING DIRECTLY OR INDIRECTLY
OUT OF THIS AGREEMENT SHALL BE LITIGATED IN THE CIRCUIT COURT OF FULTON COUNTY, GEORGIA, OR THE UNITED STATES DISTRICT COURT FOR
THE NORTHERN DISTRICT OF GEORGIA OR, IF ADMINISTRATIVE AGENT INITIATES SUCH ACTION, ANY COURT IN WHICH ADMINISTRATIVE AGENT SHALL
INITIATE SUCH ACTION AND WHICH HAS JURISDICTION. BORROWER HEREBY EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION
IN ANY ACTION OR PROCEEDING COMMENCED BY ADMINISTRATIVE AGENT IN ANY OF SUCH COURTS. BORROWER WAIVES ANY CLAIM THAT ATLANTA, GEORGIA
OR THE NORTHERN DISTRICT OF GEORGIA IS AN INCONVENIENT FORUM OR AN IMPROPER FORUM BASED ON LACK OF VENUE. SHOULD BORROWER, AFTER
BEING SO SERVED, FAIL TO APPEAR OR ANSWER TO ANY SUMMONS, COMPLAINT, PROCESS OR PAPERS SO SERVED WITHIN THE NUMBER OF DAYS PRESCRIBED
BY LAW AFTER THE MAILING THEREOF, BORROWER SHALL BE DEEMED IN DEFAULT AND AN ORDER AND/OR JUDGMENT MAY BE ENTERED BY ADMINISTRATIVE
AGENT AGAINST BORROWER AS DEMANDED OR PRAYED FOR IN SUCH SUMMONS, COMPLAINT, PROCESS OR PAPERS. THE EXCLUSIVE CHOICE OF FORUM FOR
BORROWER SET FORTH IN THIS SECTION 11.22 SHALL NOT BE DEEMED TO PRECLUDE THE ENFORCEMENT BY ADMINISTRATIVE AGENT OF ANY
JUDGMENT OBTAINED IN ANY OTHER FORUM OR THE TAKING BY ADMINISTRATIVE AGENT OF ANY ACTION TO ENFORCE THE SAME IN ANY OTHER APPROPRIATE
JURISDICTION, AND BORROWER HEREBY WAIVES THE RIGHT, IF ANY, TO COLLATERALLY ATTACK ANY SUCH JUDGMENT OR ACTION.


 


11.23.         JURY
WAIVER.   BORROWER, ADMINISTRATIVE AGENT AND LENDERS HEREBY VOLUNTARILY, KNOWINGLY, IRREVOCABLY AND UNCONDITIONALLY WAIVE
ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) BETWEEN OR AMONG
BORROWERS, ADMINISTRATIVE AGENT AND LENDERS ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT, OR
ANY RELATIONSHIP BETWEEN BORROWER, ADMINISTRATIVE AGENT AND LENDERS. THIS PROVISION IS A MATERIAL INDUCEMENT TO LENDERS TO PROVIDE
THE LOAN DESCRIBED HEREIN AND IN THE OTHER LOAN DOCUMENTS.


 


11.24.         Additional
Provisions.    See Exhibit I for additional provisions to this Agreement.


 


[Signatures on following pages]


 




    81 


     

    

 


IN WITNESS WHEREOF, the undersigned have
executed this Agreement as of the date first above written.


 


	 	BORROWER: 
	 	 
	 	CB OWNER, LLC, a Delaware limited liability company
	 	 	 	 
	 	 	 	 
	 	By:	/s/ Robert Myer	(SEAL)
	 	Name:	Robert Myer	 
	 	Title:	President	 


 


[SIGNATURES CONTINUED ON FOLLOWING PAGE]


 


Signature Page – Construction Loan
and Security Agreement


 




     


     


    

 


 


	 	ADMINISTRATIVE AGENT:
	 	 
	 	THE PRIVATEBANK AND TRUST COMPANY, an Illinois state chartered bank
	 	 	 	 
	 	By:	/s/ Brad Barton  	(SEAL)
	 	Name:	Brad Barton	 
	 	Title:	Managing Director	 
	 	 	 	 
	 	LENDER:	 	 
	 	 	 	 
	 	THE PRIVATEBANK AND TRUST COMPANY, an Illinois state chartered bank
	 	 	 	 
	 	By:	/s/ Brad Barton  	(SEAL)
	 	Name:	Brad Barton	 
	 	Title:	Managing Director	 


 


Signature Page – Construction Loan
and Security Agreement


 




     


     


    

 


SCHEDULE 1


 


COMMITMENT AMOUNT/PERCENTAGE


 


	Bank	 	Commitment Amount	 	 	Commitment Percentage	 
	 	 	 	 	 	 	 	 	 
	The PrivateBank and Trust Company 
120 S. LaSalle Street 
Chicago, Illinois 60603 
Attn: Commercial Real Estate 
	 	$	38,130,000.00	 	 	 	100	%



 


Signature Page – Construction Loan
and Security Agreement


 




     


     


    

 


Schedule of Exhibits


 


	 	A	-	Legal Description
	 	 	 	 
	 	B	-	Form of Note
	 	 	 	 
	 	C	-	Permitted Exceptions
	 	 	 	 
	 	D	-	Budget
	 	 	 	 
	 	E	-	Form of Assignment and Acceptance Agreement
	 	 	 	 
	 	F	-	Form of Disbursement Request
	 	 	 	 
	 	G	-	Required Insurance
	 	 	 	 
	 	H	-	Compliance Certificate Form for Borrower
	 	 	 	 
	 	I	-	Additional Provisions


 


Signature Page – Construction Loan
and Security Agreement


 


 




     


     


    

 


EXHIBIT A


 


Legal Description


 


All that tract of land lying or being Land Lot 6, 17th District,
Fulton County and the City of Atlanta, Georgia, and being more particularly described as follows:


 


BEGINNING at a 1/2 inch re-bar found at the intersection of
the southerly right of way of Interstate 85, a variable width right of way, and the westerly right of way of Cheshire Bridge Road,
also a variable width right of way; THEN leaving the right of way of Interstate 85, proceed the following courses along the said
westerly right of way of Cheshire Bridge Road: South 55 degrees 38 minutes 44 seconds East for 30.92 feet to a 1/2 inch re-bar
found; THEN South 06 degrees 51 minutes 23 seconds East for 248.74 feet to a nail found; THEN South 28 degrees 07 minutes 38 seconds
East for 42.38 feet to a 1/2 inch re-bar found; THEN South 67 degrees 28 minutes 12 seconds West for 145.43 feet to a 1/2 inch
re-bar found; THEN South 00 degrees 42 minutes 52 seconds West for 123.24 feet to a 1/2 inch re-bar found; THEN North 88 degrees
37 minutes 53 seconds West for 43.35 feet to a 1/2 inch re-bar found; THEN South 09 degrees 34 minutes 54 seconds East for 86.90
feet to a 1/2 inch re-bar found; THEN North 89 degrees 25 minutes 02 seconds West for 172.15 feet to a 1/2 inch open top pipe found;
THEN North 25 degrees 59 minutes 36 seconds West for 95.01 feet to a point; THEN North 26 degrees 42 minutes 06 seconds West for
470.00 feet to a point on the southerly variable right of way of Interstate 85; THEN continue the following courses along said
southerly right of way of Interstate 85; North 82 degrees 57 minutes 58 seconds East for 105.01 feet to a 1/2 inch re-bar found;
THEN North 79 degrees 50 minutes 07 seconds East for 257.68 feet to a point; THEN North 89 degrees 59 minutes 21 seconds East for
156.66 feet to a 1/2 inch re-bar found at the POINT OF BEGINNING.


 


Said property contains 4.877 acres more or less on that certain
Survey for Catalyst Development Partners; fidelity National Title Insurance Company; Bluerock Real Estate, LLC; CB Owner, LLC,
as Trustee under the BR/CDP Cheshire Bridge Trust Agreement dated May 29, 2015; and The Private Bank dated March 12, 2015, last
revised November 20, 2015 by Bentley-Cranton Group, bearing the seal and certification of Douglas R. Bentley, GRLS No. 2535, said
survey being incorporated herein by this reference.


 




    	 	Exhibit A-1	 



     


    

 


EXHIBIT B


 


Form of Note


 


PROMISSORY NOTE


 


	$_______	Date: _______ ___, 20___




 


THIS PROMISSORY
NOTE, (the “Note”) is made in Atlanta, Georgia as of ______ ___, 20___ by _____________________ ,
a ________ _______________ (“Borrower”) for the benefit of [The PrivateBank and Trust Company, an Illinois
state chartered bank] (“Lender”), in the original principal amount of _____________ ___/100 Dollars ($_______),
as provided herein and as provided in that certain Construction Loan and Security Agreement (the “Loan Agreement”)
dated as of even date herewith by and among Borrower, The PrivateBank and Trust Company (“Administrative Agent”)
and the other financial institutions identified therein.


 


Borrower promises to
pay to the order of Lender at the principal office of Administrative Agent in Chicago, Illinois, on or before the Maturity Date
(as defined in the Loan Agreement), the lesser of (i) _____________ and ___/100 Dollars ($_______), or (ii) the aggregate principal
amount of all Loans made to Borrower by the Lender under and pursuant to the Loan Agreement. Capitalized words and phrases not
otherwise defined herein shall have the meanings assigned thereto in the Loan Agreement.


 


Borrower further promises
to pay interest on the unpaid principal amount of all Loans outstanding from time to time, at the rate(s) and at the time(s) set
forth in the Loan Agreement. The outstanding principal amount of all Loans shall be repaid by Borrower on the Maturity Date, unless
payable sooner pursuant to the provisions of the Loan Agreement. Payments of both principal and interest are to be made in lawful
money of the United States of America.


 


This Note evidences
indebtedness incurred under, and is subject to the terms and provisions of, the Loan Agreement, to which Loan Agreement reference
is hereby made for a statement of the terms and provisions under which this Note may or must be paid prior to the Maturity Date,
or pursuant to which the Maturity Date may be accelerated. The holder of this Note is entitled to all of the benefits and security
provided for in the Loan Agreement.


 


Except for such notices
as may be expressly required under the Loan Documents, Borrower waives presentment, demand, notice, protest, and all other demands,
or notices, in connection with the delivery, acceptance, performance, default, or enforcement of this Note, and assents to any
extension or postponement of the time of payment or any other indulgence. No failure to exercise, and no delay in exercising, any
rights under any of the Loan Documents by Administrative Agent or any holder of this Note shall operate as a waiver of such rights.


 


This Note shall be
governed and construed in accordance with the laws of the State of Georgia applicable to contracts made and to be performed entirely
within such State.


 




    	 	Exhibit B-1	 



     

    

 


IN WITNESS WHEREOF, Borrower has executed
this Promissory Note as of the date set forth above.


 


	 	BORROWER:
	 	 	 
	 	 	,
	 	a	 
	 	 	 
	 	By:	 
	 	Name:	 
	 	Title:	 


 




    	 	Exhibit B-2	 



     

    

 


EXHIBIT C


 


Permitted Exceptions


 




    	 	Exhibit C-1	 



     

    

 


EXHIBIT D


 


Budget





 





	BREAKOUT OF USES	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 
	TOTAL USES:	 	 	 	 	per Unit	 	 	per SF	 
	Purchase Price	 	$	5,971,688	 	 	$	21,176	 	 	$	24.22	 
	Doc Stamps	 	 	147,500	 	 	 	523	 	 	 	0.60	 
	Project Feasibility Co	 	 	46,796	 	 	 	166	 	 	 	0.19	 
	Design Costs	 	 	814,500	 	 	 	2,888	 	 	 	3.30	 
	Legal Costs	 	 	390,000	 	 	 	1,383	 	 	 	1.58	 
	Real Estate Taxes	 	 	465,422	 	 	 	1,650	 	 	 	1.89	 
	Insurance Costs	 	 	220,000	 	 	 	780	 	 	 	0.89	 
	Financing Costs	 	 	969,221	 	 	 	3,437	 	 	 	3.93	 
	Government Costs	 	 	752,947	 	 	 	2,670	 	 	 	3.05	 
	Misc. Direct Costs	 	 	79,000	 	 	 	280	 	 	 	0.32	 
	Construction Costs	 	 	35,669,173	 	 	 	126,486	 	 	 	144.68	 
	FF&E Costs	 	 	630,000	 	 	 	2,234	 	 	 	2.56	 
	Interest Reserve	 	 	638,549	 	 	 	2,264	 	 	 	2.59	 
	Operating Deficit Reserve	 	 	370,759	 	 	 	1,315	 	 	 	1.50	 
	Capitalized Development Fee	 	 	1,531,650	 	 	 	5,431	 	 	 	6.21	 
	Contingency	 	 	1,563,595	 	 	 	5,545	 	 	 	6.34	 
	I-Banking Fee	 	 	509,200	 	 	 	1,806	 	 	 	2.07	 
	Marketing Costs	 	 	150,000	 	 	 	532	 	 	 	0.61	 
	Total Uses	 	$	50,920,000	 	 	$	180,567	 	 	$	206.54	 








 




    	 	Exhibit D-1	 



     

    

 


EXHIBIT E


 


Form of Assignment and Acceptance


 


ASSIGNMENT AND ACCEPTANCE


 


Reference is made to
the Construction Loan and Security Agreement dated as of _______ ___, 20___ (as the same may be amended, modified or supplemented
from time to time in accordance with its terms, the “Loan Agreement”) among (i) _________________________________
(the “Borrower”), (ii) the several banks and financial institutions from time to time parties to the Loan
Agreement (collectively, the “Lenders”) and (iii) The PrivateBank and Trust Company, an Illinois state
chartered bank, as agent for the Lenders (in such capacity the “Administrative Agent”). Terms defined in the
Loan Agreement are used herein with the same meaning. This Assignment and Acceptance, between the Assignor (as identified on Schedule 1
hereto) and the Assignee (as identified on Schedule 1 hereto) is dated as of the Effective Date (as specified on Schedule 1
hereto, the “Effective Date”).


 


The Assignor hereby
irrevocably sells and assigns to the Assignee without recourse to the Assignor, and the Assignee hereby irrevocably purchases and
assumes from the Assignor, without recourse to the Assignor, as of the Effective Date, the interest (the “Assigned Interest”)
in and to the Assignor’s rights and obligations under the Loan Agreement with respect to the credit facility contained in
the Loan Agreement (the “Assigned Facility”), in a principal amount and percentage of the credit facility as
set forth in Schedule 1.


 


The Assignor (a) makes
no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made
in or in connection with the Loan Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value
of the Loan Agreement, any other Loan Document or any other instrument or document furnished pursuant thereto, other than that
it has not created any adverse claim upon the interest being assigned by it hereunder and that such interest is free and clear
of any adverse claim; (b) makes no representation or warranty and assumes no responsibility with respect to the financial
condition of Borrower or the performance or observance by Borrower of any of its obligations under the Loan Agreement or any other
Loan Document or any other instrument or document furnished pursuant hereto or thereto; and (c) has delivered a copy of the
Note held by it evidencing the Assigned Facility and requests that Administrative Agent exchange such Note for a new Note payable
to the Assignor (if the Assignor has retained any interest in the Assigned Facility) and a new Note payable to the Assignee in
the respective amounts which reflect the assignment being made hereby (and after giving effect to any other assignments which have
become effective on the Effective Date).


 




    	 	Exhibit E-1	 



     

    

 


The Assignee (a) represents
and warrants that it is legally authorized to enter into this Assignment and Acceptance; (b) confirms that it has received
a copy of the Loan Documents, together with copies of the financial statements delivered pursuant thereto and such other documents
and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and Acceptance;
(c) agrees that it will, independently and without reliance upon the Assignor, Administrative Agent or any other person which
has become a Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under the Loan Agreement; (d) appoints and authorizes Administrative Agent
to take such action as agent on its behalf and to exercise such powers under the Loan Agreement as are delegated to Administrative
Agent by the terms thereof, together with such powers as are incidental thereto; and (e) agrees that it will be bound by the
provisions of the Loan Agreement and will perform in accordance with its terms all the obligations which by the terms of the Loan
Agreement are required to be performed by it as a Lender including, if it is organized under the laws of a jurisdiction outside
the United States, its obligation pursuant to Section 3.8(c) of the Loan Agreement to deliver the forms prescribed by the
Internal Revenue Service of the United States certifying as to the Assignee’s exemption from United States withholding taxes
with respect to all payments to be made to the Assignee under the Loan Agreement, or such other documents as are necessary to indicate
that all such payments are subject to such tax at a rate reduced by an applicable tax treaty.


 


This Assignment and
Acceptance is conditioned upon the acceptance of Administrative Agent pursuant to the Loan Agreement. The execution of this Assignment
and Acceptance by Administrative Agent is evidence of this consent.


 


From and after the
Effective Date, Administrative Agent shall make all payments in respect of the Assigned Interest (including payments of principal,
interest, fees and other amounts) to the Assignee whether such amounts have accrued prior to the Effective Date or accrue subsequent
to the Effective Date. The Assignor and the Assignee shall make all appropriate adjustments in payments by Administrative Agent
for the period prior to the Effective Date or with respect to the making of this Assignment directly between themselves.


 


From and after the
Effective Date (a) the Assignee shall be a party to the Loan Agreement and, with respect to the Assigned Interest, have the
rights and obligations of a Lender thereunder and under the other Loan Documents and shall be bound by the provisions thereof,
and (b) the Assignor shall, with respect to the Assigned Interest, relinquish its rights and be released from its obligations
under the Loan Agreement.


 


This Assignment and
Acceptance shall be governed by and construed in accordance with the laws of the State of Georgia.


 




    	 	Exhibit E-2	 



     

    

 


IN WITNESS WHEREOF,
the parties hereto have caused this Assignment and Acceptance to be executed by their respective duly authorized officers.


 


	 	ASSIGNOR:
	 	 	 	 
	 	 	 	 
	 	 	 	 
	 	By:	 	 
	 	 	Name:	 
	 	 	Title:	 
	 	 	 	 
	 	ASSIGNEE:	 
	 	 		 
	 	 	 	 
	 	By:	 	 
	 	 	Name:	 
	 	 	Title:	 
	 	 	 	 
	 	ACCEPTED BY ADMINISTRATIVE AGENT
	 	 
	 	THE PRIVATEBANK AND TRUST COMPANY, as Administrative Agent
	 	 	 	 
	 	By:	 	 
	 	 	Name:	 
	 	 	Title:	 


 




    	 	Exhibit E-3	 



     

    

 


SCHEDULE 1


TO


ASSIGNMENT AND ACCEPTANCE


 


	NAME OF ASSIGNOR:	 
	 	 
	NAME OF ASSIGNEE:	 


 


	EFFECTIVE DATE OF ASSIGNMENT:	 


 


	PRINCIPAL AMOUNT ASSIGNED	 	ASSIGNEE’S PRO RATA SHARE
	(ASSIGNEE’S COMMITMENT):	 	IN LOAN
	 	 	 
	$	 	%


 




    	 	Exhibit E-4	 



     

    

 


EXHIBIT F


 


FORM OF DISBURSEMENT REQUEST


 


[BORROWER’S LETTERHEAD]


 


DRAW REQUEST NO. _________


 


	TO:  	The PrivateBank and Trust Company (“Administrative Agent”)


 


	LOAN NO.	 	 	DATE	 	 


 


	PROJECT	 	 
	 	 	 
	LOCATION	 	 
	 	 	 
	BORROWER	 	 
	 	 	 
	 	 	 


 


	FOR PERIOD ENDING	 	 


 


In accordance with the Construction Loan
and Security Agreement in the amount of $________________ dated _________________, among Borrower, Administrative Agent and the
Lenders as defined therein, Borrower requests that $________________________ be advanced from Loan proceeds. The proceeds should
be credited to the account of ___________________________________________________________________________ Account No. ___________________,
at _________________________________________.


 


	1.	CURRENT DRAW REQUEST FOR HARD COSTS	 	$
	 	 	 	 
	2.	CURRENT DRAW REQUEST FOR SOFT COSTS	 	$
	 	 	 	 
	3.	TOTAL DRAW REQUEST	 	$


 


	AUTHORIZED SIGNER:	 	 	 
	 	 	Dated:	 


 




    	 	Exhibit F-1	 



     


    

 


EXHIBIT G


 


Required Insurance


 


 


 


BORROWER'S INSURANCE REQUIREMENTS


 


General Information


 


1. All insurance policies referred to herein shall be in form
and substance acceptable to The PrivateBank.


 


2. The PrivateBank must receive evidence / certificates of insurance
at least ten (10) business days prior to closing. Original policies must be provided to The PrivateBank as soon as they are available
from insurers. Certified copies should be available within 60 to 90 days.


 


3. Proof of coverage must be on the following forms:


Commercial Property:  ACORD 28 (2003/10) - EVIDENCE OF COMMERCIAL
PROPERTY INSURANCE form.


Personal Property:       ACORD 27 (2003/10) EVIDENCE OF PERSONAL PROPERTY
INSURANCE form.


Liability Insurance:       Must be written on ACORD 25S or its equivalent.


 


4. All property policies shall contain a standard mortgage clause
in favor of The PrivateBank and shall provide for a thirty (30) day written notice to The PrivateBank of any material change or
cancellation. Certificates with disclaimers will NOT be accepted.


 


5. The borrower must be the named insured. TBD


 


6. Commercial / Personal Property & Builders Risk certificates
must show The PrivateBank as Mortgagee and or Lender's Loss Payee as follows:


The PrivateBank and Trust Company


Its Successors and/ or Assigns


P.O. Box 5034


Troy, MI 48007-5034


 


(The PrivateBank may be shown as "Mortgagee and or Lender's
Loss Payee As Their Interests May Appear" until the insurance agent receives release of interest from the prior lender. At
that time, the insurance policies will need to be endorsed to show The PrivateBank as Mortgagee and or Lender's Loss Payee.


 


7. The property address must be identified as the insured property.


TBD


2740 Cheshire Bridge Road


Atlanta, GA 30324


 


8. All insurance companies must have the following ratings from
AM Best's Rating Guide:


Policy Rating A


Financial Rating VIII


9. The insurance documentation must be signed by an authorized
representative.


 


Specific Requirement s


 


1. If the property policy is a blanket policy or limit, The
PrivateBank must receive a schedule of the amount allocated to the property/rents or the amounts allocated to the property must
be indicated on the certificate.


 




    	 	Exhibit G-1	 



     

    

 


2. Coverage must be on an "all risk" (Special Perils),
100% replacement cost basis without deduction for foundations and footings, and WITHOUT co-insurance. The co-insurance must be
waived or an Agreed Amount endorsement must be included and either "No Co-insurance" or "A greed Amount" ust
be indicated on the certificate.


 


3. Ordinance or Law coverage providing for demolition and increased
cost of construction, must be provided and indicated on the certificate.


 


4. Other coverages such as earthquake, boiler and machinery
(which includes the mechanics of the building, such as elevators), and flood will be required when these risks are present.


 


5. Rent Loss or Business Income coverage shall be in an amount
equal to 100% of the projected annual rents or revenue with a minimum period of indemnity of 12 months, or such greater period
as The PrivateBank may require. This coverage needs to be written on a Gross Rental Income, Gross Profits or Extended Period of
Indemnity form, not on an actual loss sustained basis which may terminate as soon as the premises are tenantable or operational.


 


6. The PrivateBank and TBD must be named as Additional Insured
for all general liability coverage, with a minimum limit of $2,000,000 for any one occurrence.


 


Additional Requirements – Construction Loans


 


1. Coverage must be All Risk Builders Risk Course of Construction,
including earthquake and flood when these risks are present. The Builders Risk insurance amount must cover at least 100% of hard
costs and not less than 25% of recurring soft costs.


 


2. Under the Evidence of Property form - The builders risk coverage
should make the following statement: "The General Contractor (name) and all subcontractors of any tier are named insured with
respect to builders' risk."


 


3. Rent coverage must be 100% of the anticipated annual rents
(assuming full occupancy) written on a delayed income basis. The policy shall allow for partial or full occupancy.


 


4. Coverage should also include permission to occupy clause.


 


ARCHITECT'S & ENGINEER'S INSURANCE REQUIREMENTS


 


General Information


 


1. All insurance policies referred to herein shall be in form
and substance acceptable to The PrivateBank.


 


2. The PrivateBank must receive evidence / certificates of insurance
at least ten (10) business days prior to closing. Original policies must be provided to The PrivateBank as soon as they are available
from insurers. Certified copies should be available within 60 to 90 days.


 


3. Liability insurance must be written on ACORD 25S or its equivalent.


 


4. The property address must be identified as the insured property.


TBD


2740 Cheshire Bridge Road


Atlanta, GA 30324


 


5. All insurance companies must have the following ratings from
AM Best's Rating Guide:


Policy Rating - A


Financial Rating - VIII


6. The insurance documentation must be signed by an authorized
representative.


 


Specific Requirements


 


1. Errors and Omission (professional liability) insurance is
required in the minimum amount of $3,000,000.


 


GENERAL CONTRACTOR'S INSURANCE REQUIREMENTS


 


General Information


 


1. All insurance policies referred to herein shall be in form
and substance acceptable to The PrivateBank.


 




    	 	Exhibit G-2	 



     

    

 


2. The PrivateBank must receive evidence / certificates of insurance
at least ten (10) business days prior to closing. Original policies must be provided to The PrivateBank as soon as they are available
from insurers. Certified copies should be available within 60 to 90 days.


 


3. Liability insurance must be written on ACORD 25S or its equivalent.


 


4. All property policies shall contain a standard mortgage clause
in favor of The PrivateBank and shall provide for a thirty (30) day written notice to The PrivateBank of any material change or


cancellation. Certificates with disclaimers will NOT be accepted.


 


5. The borrower must be named additional insured. TBD


 


6. Certificate holder must be: The PrivateBank and Trust Company,
Its Successors and/ or Assigns, P.O. Box 5034, Troy, MI 48007-5034.


 


7. The property address must be identified as the insured property.


TBD


2740 Cheshire Bridge Road


Atlanta, GA 30324


 


8. All insurance companies must have the following ratings from
AM Best's Rating Guide:


Policy Rating - A


Financial Rating - VIII


9. The insurance documentation must be signed by an authorized
representative.


Specific Requirements


 


1. The PrivateBank and TBD must be named as Additional Insured
as Additional Insured for general liability with a minimum limit of $2,000,000 for any one occurrence.


2. Contractor's Workers Compensation is required including the
"all states" endorsement, covering all employees working on the site.


 




    	 	Exhibit G-3	 



     

    

 


EXHIBIT H


 


Compliance Certificate Form for Borrower


 


Borrower:                           CB Owner, LLC, a Delaware limited liability
company


 


	Project Name:	   	



 


	Determination Date:	 
	 	 
	 	 
	 	 
	Calculation Period (for Gross Revenues, 3 months prior to the Determination Date, then annualized; for Operating Expenses, 12 months following the Determination Date):	 
	 	 
	 	 
	 	 
	 	 


 


Borrower hereby certifies, with respect
to the referenced Project, that (i) Borrower and the Project are in compliance with all requirements of the Loan Documents and
(ii) the information set forth below is true and correct as of the Determination Date.


 


	STATEMENT OF DEBT


 


	Debt Service: 	 	 
	 	 	 
	Debt Amount: 	 	 


 


	GROSS REVENUES


 


Gross Revenues:_________________


 


	OPERATING EXPENSES


 


Real estate taxes: _______________


Insurance: _______________


Maintenance: _______________


Management Fee: _______________


Replacement Reserve: _______________


Other Miscellaneous: _______________


 


Total Operating Expenses: _______________


 




    	 	Exhibit H-1	 



     

    

 


	DSCR CALCULATION


 


Net Operating Income (Gross Revenues less Operating Expenses):
_______________


Debt Service: _______________


DSCR (Net Operating Income / Debt Service):_______________


 


	Date: 	 	BORROWER: 
	 	 	 
	 	 	CB OWNER, LLC, a Delaware limited liability company
	 	 	 	 	 
	 	 	By:	 	(SEAL)
	 	 	Name:	 	 
	 	 	Title: 	 	 


 




    	 	Exhibit H-2	 



     

    

 


EXHIBIT I


 


I-1.      
Post-Closing Items.  Borrower agrees to the following: 


 


1.        
Borrower must satisfy Section 4.33 of this Agreement before Borrower may request any Loan Advances.   


 


2.        
Borrower must deliver to Administrative Agent payment and performance bonds for each Material Subcontract. Administrative Agent
reserves the right not to fund the portion of a requested Loan Advance to be used to pay the subcontractor under a Major Subcontract
until Administrative Agent has received a payment and performance bond satisfactory to Administrative Agent for that Material Subcontract.


 


3.          Borrower
must deliver to Administrative Agent evidence of builder’s risk insurance and worker’s compensation insurance before
Borrower may request any Loan Advances to pay for the costs of any vertical Improvements. For the avoidance of doubt, vertical
Improvements shall not include work related to or associated with any of the following: site work, grading, site walls, utility
installation and related work, offsite parking garage fabrication, foundations and foundation walls.


 


All of the foregoing items must be in a
form and content acceptable to Administrative Agent in its sole discretion and, where determined necessary or desirable by Lender,
approved by the Consultant.  Borrower shall reimburse Administrative Agent for any expenses (including, without limitation,
reasonable legal fees and expenses actually incurred) Administrative Agent incurs with respect to the review and approval of the
foregoing items.  Borrower agrees to pay such expenses within fifteen (15) days after receipt of a statement for such expenses. 
If Borrower has not paid such expenses within the fifteen (15) day period, Administrative Agent is authorized to disburse the expenses
from the Loan and reduce the available Loan proceeds by the amount disbursed.


 




    		Exhibit I