Exhibit 10.44


 


MULTIFAMILY LOAN AND
SECURITY AGREEMENT (NON-RECOURSE)


 


BY AND BETWEEN


 


BELL BR WATERFORD CROSSING
JV, LLC, a Delaware limited liability company


 


AND


 


CWCAPITAL LLC, a
Massachusetts limited liability company


 


DATED AS OF


 


April 4, 2012


 


FannieMae.


 




    	 



    	 



    

 


TABLE OF CONTENTS


 


	ARTICLE 1- DEFINITIONS; SUMMARY OF MORTGAGE LOAN TERMS	1
	 	 	 	 
	SECTION 1.01	DEFINED TERMS	1
	SECTION 1.02	SCHEDULES, EXHIBITS AND ATTACHMENTS INCORPORATED	1
	 	 	 	 
	ARTICLE 2 - GENERAL MORTGAGE LOAN TERMS	2
	 	 	 	 
	SECTION 2.01	MORTGAGE LOAN ORIGINATION AND SECURITY	2
	(a)	Making of Mortgage Loan	2
	(b)	Security for Mortgage Loan	2
	(c)	Protective Advances	2
	SECTION 2.02	PAYMENTS ON MORTGAGE LOAN	2
	(a)	Debt Service Payments	2
	(b)	Capitalization of Accrued But Unpaid Interest	3
	(c)	Late Charges	3
	(d)	Default Rate	4
	(e)	Address for Payments	5
	(f)	Application of Payments	5
	SECTION 2.03	LOCKOUT/PREPAYMENT	6
	(a)	Prepayment; Prepayment Lockout; Prepayment Premium	6
	(b)	Voluntary Prepayment in Full	6
	(c)	Acceleration of Mortgage Loan	7
	(d)	Application of Collateral	7
	(e)	Casualty and Condemnation	7
	(f)	No Effect on Payment Obligations	7
	(g)	Loss Resulting from Prepayment	8
	 	 	 
	ARTICLE 3 - PERSONAL LIABILITY	8
	 	 	 	 
	SECTION 3.01	NON-RECOURSE MORTGAGE LOAN; EXCEPTIONS	8
	SECTION 3.02	PERSONAL LIABILITY OF BORROWER (EXCEPTIONS TO NON-RECOURSE PROVISION)	8
	(a)	Personal Liability Based on Lender's Loss	8
	(b)	Full Personal Liability for Mortgage Loan	9
	SECTION 3.03	PERSONAL LIABILITY FOR INDEMNITY OBLIGATIONS	10
	SECTION 3.04	LENDER'S RIGHT TO FOREGO RIGHTS AGAINST MORTGAGED PROPERTY	10
	 	 	 	 
	ARTICLE 4 - BORROWER STATUS	11
	 	 	 	 
	SECTION 4.01	REPRESENTATIONS AND WARRANTIES	11
	(a)	Due Organization and Qualification	11
	(b)	Location	11
	(c)	Power and Authority	11
	(d)	Due Authorization	11
	(e)	Valid and Binding Obligations	12
	(f)	Effect of Mortgage Loan on Borrower's Financial Condition	12
	(g)	Economic Sanctions, Anti-Money Laundering and Anti-Corruption	12
	(h)	Borrower Single Asset Status	13
	(i)	No Bankruptcies or Judgments	14
	G)	No Litigation	14
	(k)	Payment of Taxes, Assessments and Other Charges	14



 






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	(l)	Not a Foreign Person	15
	(m)	BRISA	15
	(n)	Default Under Other Obligations	15
	(o)	Prohibited Person	16
	SECTION 4.02	COVENANTS	16
	(a)	Maintenance of Existence; Organizational Documents	16
	(b)	Anti-Money Laundering, Anti-Corruption and Economic Sanctions	16
	(c)	Payment of Taxes, Assessments and Other Charges	17
	(d)	Borrower Single Asset Status	17
	(e)	ERISA	18
	(f)	Notice of Litigation or Insolvency	19
	(g)	Payment of Costs, Fees, and Expenses	19
	 	 	 
	ARTICLE 5 - THE MORTGAGE LOAN	20
	 	 	 	 
	SECTION 5.01	REPRESENTATIONS AND WARRANTIES	20
	(a)	Receipt and Review of Loan Documents	20
	(b)	No Default	20
	SECTION 5.02	COVENANTS	20
	(a)	Ratification of Covenants; Estoppels; Certifications	20
	(b)	Further Assurances	21
	(c)	Sale of Mortgage Loan	21
	(d)	Limitations on Further Acts of Borrower	22
	(e)	Financing Statements; Record Searches	22
	 	 	 
	ARTICLE 6 - PROPERTY USE, PRESERVATION AND MAINTENANCE	23
	 	 	 	 
	SECTION 6.01	REPRESENTATIONS AND WARRANTIES	23
	(a)	Compliance with Law; Permits and Licenses	23
	(b)	Property Characteristics	23
	(c)	Property Ownership	24
	SECTION 6.02	COVENANTS	24
	(a)	Use of Property	24
	(b)	Property Maintenance	24
	(c)	Property Preservation	26
	(d)	Property Inspections	26
	(e)	Compliance with Laws	27
	SECTION 6.03	MORTGAGE LOAN ADMINISTRATION MATTERS REGARDING THE PROPERTY	27
	(a)	Property Management	27
	(b)	Subordination of Fees to Affiliated Property Managers	28
	(c)	Physical Needs Assessment.	28
	 	 	 
	ARTICLE 7 - LEASES AND RENTS	28
	 	 	 	 
	SECTION 7.01	REPRESENTATIONS AND WARRANTIES	28
	(a)	Prior Assignment of Rents	28
	(b)	Prepaid Rents	28
	SECTION 7.02	COVENANTS	29
	(a)	Leases	29
	(b)	Commercial Leases	29
	(c)	Payment of Rents	30
	(d)	Assignment of Rents	31



 






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	(e)	Further Assignments of Leases and Rents	31
	(f)	Options to Purchase by Tenants	31
	SECTION 7.03	MORTGAGE LOAN ADMINISTRATION REGARDING LEASES AND RENTS	31
	(a)	Material Commercial Lease Requirements	31
	(b)	Residential Lease Requirements	32
	 	 	 
	ARTICLE 8 - BOOKS AND RECORDS; FINANCIAL REPORTING	32
	 	 	 	 
	SECTION 8.01	REPRESENTATIONS AND WARRANTIES	32
	(a)	Financial Information	32
	(b)	No Change in Facts or Circumstances	32
	SECTION 8.02	COVENANTS	33
	(a)	Obligation to Maintain Accurate Books and Records	33
	(b)	Items to Furnish to Lender	33
	(c)	Delivery of Books and Records	35
	SECTION 8.03	MORTGAGE LOAN ADMINISTRATION MATTERS REGARDING BOOKS AND RECORDS AND FINANCIAL REPORTING	35
	(a)	Right to Audit Books and Records	35
	(b)	Credit Reports; Credit Score	35
	 	 	 
	ARTICLE 9 - INSURANCE	35
	 	 	 	 
	SECTION 9.01	REPRESENTATIONS AND WARRANTIES	35
	(a)	Compliance with Insurance Requirements	36
	(b)	Property Condition	36
	SECTION 9.02	COVENANTS	36
	(a)	Insurance Requirements	36
	(b)	Delivery of Policies, Renewals, Notices and Proceeds	36
	SECTION 9.03	MORTGAGE LOAN ADMINISTRATION MATTERS REGARDING INSURANCE	37
	(a)	Lender's Ongoing Insurance Requirements	37
	(b)	Application of Proceeds on Event of Loss	38
	(c)	Payment Obligations Unaffected	40
	(d)	Foreclosure Sale	40
	(e)	Appointment of Lender as Attorney-In-Fact	40
	 	 	 
	ARTICLE 10 - CONDEMNATION	41
	 	 	 	 
	SECTION 10.01	REPRESENTATIONS AND WARRANTIES	41
	(a)	Prior Condemnation Action	41
	(b)	Pending Condemnation Actions	41
	SECTION 10.02	COVENANTS	41
	(a)	Notice of Condemnation	41
	(b)	Condemnation Proceeds	41
	SECTION 10.03	MORTGAGE LOAN ADMINISTRATION MATTERS REGARDING CONDEMNATION	41
	(a)	Application of Condemnation Awards	41
	(b)	Payment Obligations Unaffected	42
	(c)	Appointment of Lender as Attorney-In-Fact	42
	(d)	Preservation of Mortgaged Property	42
	 	 	 
	ARTICLE 11- LIENS, TRANSFERS AND ASSUMPTIONS	42
	 	 	 	 
	SECTION 11.01	REPRESENTATIONS AND WARRANTIES	42
	(a)	No Labor or Materialmen's Claims	42



 






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	(b)	No Other Interests	43
	SECTION 11.02	COVENANTS	43
	(a)	Liens; Encumbrances	43
	(b)	Transfers	43
	SECTION 11.03	MORTGAGE LOAN ADMINISTRATION MATTERS REGARDING LIENS, TRANSFERS AND ASSUMPTIONS	46
	(a)	Assumption of Mortgage Loan	46
	(b)	Transfers to Key Principal-Owned Affiliates or Guarantor-Owned Affiliates	47
	(c)	Estate Planning	47
	(d)	Termination or Revocation of Trust	48
	(e)	Death of Key Principal or Guarantor	48
	(f)	Bankruptcy of Guarantor	50
	(g)	Further Conditions to Transfers and Assumption	51
	(h)	Transfers	52
	 	 	 
	ARTICLE 12 - IMPOSITIONS	55
	 	 	 	 
	SECTION 12.01	REPRESENTATIONS AND WARRANTIES	55
	(a)	Payment of Taxes, Assessments and Other Charges. ,	55
	SECTION 12.02	COVENANTS	55
	(a)	Imposition Deposits, Taxes, and Other Charges	55
	SECTION 12.03	MORTGAGE LOAN ADMINISTRATION MATTERS REGARDING IMPOSITIONS	56
	(a)	Maintenance of Records by Lender	56
	(b)	Imposition Accounts	56
	(c)	Payment of Impositions; Sufficiency of Imposition Deposits	57
	(d)	Imposition Deposits Upon Event of Default	57
	(e)	Contesting Impositions	57
	(f)	Release to Borrower	58
	 	 	 
	ARTICLE 13 - REPLACEMENT RESERVE AND REPAIRS	58
	 	 	 	 
	SECTION 13.01	COVENANTS	58
	(a)	Initial Deposits to Replacement Reserve Account and Repairs Escrow Account.	58
	(b)	Monthly Replacement Reserve Deposits	58
	(c)	Payment for Replacements and Repairs	58
	(d)	Assignment of Contracts for Replacements and Repairs	59
	(e)	Indemnification	59
	(f)	Amendments to Loan Documents	59
	(g)	Administrative Fees and Expenses	59
	SECTION 13.02	MORTGAGE LOAN ADMINISTRATION MATTERS REGARDING RESERVES	60
	(a)	Accounts, Deposits, and Disbursements	60
	(b)	Approvals of Contracts; Assignment of Claims	66
	(c)	Delays and Workmanship	66
	(d)	Appointment of Lender as Attorney-In-Fact	67
	(e)	No Lender Obligation	67
	(f)	No Lender Warranty	67
	 	 	 
	ARTICLE 14 - DEFAULTS/REMEDIBS	68
	 	 	 	 
	SECTION 14.01	EVENTS OF DEFAULT	68
	(a)	Automatic Events of Default.	68
	(b)	Events of Default Subject to a Specified Cure Period	69



 






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	(c)	Events of Default Subject to Extended Cure Period	69
	SECTION 14.02	REMEDIES	70
	(a)	Acceleration; Foreclosure	70
	(b)	Loss of Right to Receive Replacement Reserve Disbursements and Repairs Disbursements.	70
	(c)	Remedies Cumulative	71
	SECTION 14.03	ADDITIONAL LENDER RIGHTS; FORBEARANCE	71
	(a)	No Effect Upon Obligations	71
	(b)	No Waiver of Rights or Remedies	72
	(c)	Appointment of Lender as Attorney-in-Fact	72
	SECTION 14.04	WAIYER OF MARSHALING	74
	 	 	 	 
	ARTICLE 15 - MISCELLANEOUS	74
	 	 	 	 
	SECTION 15.0l	GOVERNING LAW; CONSENT TO JURISDICTION AND VENUE	74
	(a)	Governing Law	74
	(b)	Venue	75
	SECTION 15.02	NOTICE	75
	(a)	Process of Serving Notice	75
	(b)	Change of Address	75
	(c)	Default Method of Notice	76
	(d)	Receipt of Notices	76
	SECTION 15.03	SUCCESSORS AND ASSIGNS BOUND; SALE OF MORTGAGE LOAN	76
	(a)	Binding Agreement.	76
	(b)	Sale of Mortgage Loan; Change of Servicer	76
	SECTION 15.04	COUNTERPARTS	76
	SECTION 15.05	JOINT AND SEVERAL (OR SOLIDARY) LIABILITY	76
	SECTION 15.06	RELATIONSHIP OF PARTIES; NO THIRD PARTY BENEFICIARY	76
	(a)	Solely Creditor and Debtor	76
	(b)	No Third Party Beneficiaries	77
	SECTION 15.07	SEVERABILITY; ENTIRE AGREEMENT; AMENDMENTS	77
	SECTION 15.08	CONSTRUCTION	77
	SECTION 15.09	MORTGAGE LOAN SERVICING	78
	SECTION 15.10	DISCLOSURE OF INFORMATION	78
	SECTION 15.11	WAIVER; CONFLICT	79
	SECTION 15.12	[INTENTIONALLY DELETED.]	79
	SECTION 15.13	SUBROGATION	79
	SECTION 15.14	COUNTING OF DAYS	79
	SECTION 15.15	REVIVAL AND REINSTATEMENT OF INDEBTEDNESS	79
	SECTION 15.16	TIME IS OF THE ESSENCE	79
	SECTION 15.17	FINAL AGREEMENT	80
	SECTION 15.18	WAIVER OF TRIAL BY JURY	80


 




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SCHEDULES &
EXHIBITS


 


	Schedules	 	 	 	 
	Schedule 1	 	Definitions Schedule (required) Summary	 	Form 6101.FR
	Schedule 2	 	of Loan Terms (required)	 	Form 6102.FR
	 	 	Schedule 2 Addendum -Replacement Reserve Waived	 	Form 6102.04
	Schedule 3	 	Interest Rate Type Provisions (required)	 	Form 6103.FR
	Schedule 4	 	Prepayment Premium Schedule (required)	 	Form 6104.01
	Schedule 5	 	Required Replacement Schedule (required)	 	Form 6001.NR
	Schedule 6	 	Required Repair Schedule (required)	 	Form 6001.NR
	Schedule 7	 	Exceptions to Representations and Warranties Schedule (required)	 	Form 6001.NR
	 	 	 	 	 
	Exhibits	 	 	 	 
	Exhibit 1	 	Modifications to Loan Agreement (Replacement Reserve-Deposits Partially or Fully Waived)	 	Form 6220
	Exhibit 2	 	Modifications to Loan Agreement -Waiver of Imposition Deposits	 	Form 6228


 




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MULTIFAMILY LOAN AND
SECURITY AGREEMENT


(Non-Recourse)


 


This
MULTIFAMILY LOAN AND SECURITY AGREEMENT (as amended, restated, replaced, supplemented or otherwise modified from time to time,
the "Loan Agreement") is made as of the Effective Date (as hereinafter defined) by and between BELL BR WATERFORD
CROSSING JV, LLC, a Delaware limited liability company ("Borrower"), and CWCAPITAL LLC, a Massachusetts
limited liability company ("Lender").


 


RECITALS:


 


WHEREAS,
Borrower desires to obtain the Mortgage Loan (as hereinafter defined) from Lender to be secured by the Mortgaged Property (as hereinafter
defined); and


 


WHEREAS,
Lender is willing to make the Mortgage Loan on the terms and conditions contained in this Loan Agreement and in the other Loan
Documents (as hereinafter defined);


 


NOW,
THEREFORE, in consideration of the making of the Mortgage Loan by Lender and other good and valuable consideration, the receipt
and adequacy of which are hereby conclusively acknowledged, the parties hereby covenant, agree, represent and warrant as follows:


 


AGREEMENTS:


 


ARTICLE 1- DEFINITIONS;
SUMMARY OF MORTGAGE LOAN TERMS


 


Section 1.01         Defined
Terms.


 


Capitalized
terms not otherwise defined in the body of this Loan Agreement shall have the meanings set forth in the Definitions Schedule attached
as Schedule 1 to this Loan Agreement.


 


Section 1.02         Schedules,
Exhibits and Attachments Incorporated.


 


The
schedules, exhibits and any other addenda or attachments are incorporated fully into this Loan Agreement by this reference and
each constitutes a substantive part of this Loan Agreement.


 




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ARTICLE 2 GENERAL MORTGAGE
LOAN TERMS


 


Section 2.01         Mortgage
Loan Origination and Security.


 


(a)          Making
of Mortgage Loan.


 


On
the Effective Date and subject to the terms and conditions of this Loan Agreement and the other Loan Documents, Lender hereby makes
the Mortgage Loan to Borrower and Borrower hereby accepts the Mortgage Loan from Lender. Borrower covenants and agrees that it
shall:


 


(1)         pay
the Indebtedness, including the Prepayment Premium, if any (whether in connection with any voluntary prepayment or in connection
with an acceleration by Lender of the Indebtedness), in accordance with the terms of this Loan Agreement and the other Loan Documents;
and


 


(2)         perform,
observe and comply with this Loan Agreement and all other provisions of the other Loan Documents.


 


(b)          Security
for Mortgage Loan.


 


The
Mortgage Loan is made pursuant to this Loan Agreement, is evidenced by the Note and is secured by the Security Instrument, this
Loan Agreement and the other Loan Documents that are expressly stated to be security for the Mortgage Loan.


 


(c)          Protective
Advances.


 


As
provided in the Security Instrument, Lender may take such actions or disburse such funds as Lender reasonably deems necessary to
perform the obligations of Borrower under this Loan Agreement and the other Loan Documents and to protect Lender's interest in
the Mortgaged Property.


 


Section 2.02         Payments
on Mortgage Loan.


 


(a)          Debt
Service Payments.


 


(1)         Short
Month Interest.


 


If
the Effective Date is any day other than the first day of the month, interest for the period beginning on the Effective Date and
ending on and including the last day of the month in which the Effective Date occurs shall be payable by Borrower on the Effective
Date.


 




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(2)         Interest
Accrual and Computation.


 


Except
as provided in Section 2.02(a)(l), interest shall be paid in arrears. Interest shall accrue as provided in the Schedule of Interest
Rate Type Provisions and shall be computed in accordance with the Interest Accrual Method. If the Interest Accrual Method is "Actual/360,"
Borrower acknowledges and agrees that the amount allocated to interest for each month will vary depending on the actual number
of calendar days during such month.


 


(3)         Monthly
Debt Service Payments.


 


Consecutive
monthly debt service installments (comprised of either interest only or principal and interest, depending on the Amortization Type),
each in the amount of the applicable Monthly Debt Service Payment, shall be due and payable on the First Payment Date, and on each
Payment Date thereafter until the Maturity Date at which time all Indebtedness shall be due. Any regularly scheduled Monthly Debt
Service Payment that is received by Lender before the applicable Payment Date shall be deemed to have been received on such Payment
Date solely for the purpose of calculating interest due.


 


(4)         Payment
at Maturity.


 


The
unpaid principal balance of the Mortgage Loan, any Accrued Interest thereon and all other Indebtedness shall be due and payable
on the Maturity Date.


 


(5)         Interest
Rate Type.


 


See
the Schedule of Interest Rate Type Provisions for additional provisions, if any, specific to the Interest Rate Type.


 


(b)          Capitalization
of Accrued But Unpaid Interest.


 


Any
accrued and unpaid interest on the Mortgage Loan remaining past due for thirty (30) days or more may, at Lender's election, be
added to and become part of the unpaid principal balance of the Mortgage Loan.


 


(c)          Late
Charges.


 


(1)         If
any Monthly Debt Service Payment due hereunder is not received by Lender within ten (10) days (or fifteen (15) days for any Mortgaged
Property located in Mississippi or North Carolina to comply with applicable law) after the applicable Payment Date, or any amount
payable under this Loan Agreement (other than the payment due on the Maturity Date for repayment of the Mortgage Loan in full)
or any other Loan Document is not received by Lender within ten (10) days (or fifteen (15) days for any Mortgaged Property located
in Mississippi or North Carolina to comply with applicable law)
after the date such amount is due, inclusive of the date on which such amount is due, Borrower
shall pay to Lender, immediately without demand by Lender, the Late Charge.


 




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The Late Charge is payable in addition
to, and not in lieu of, any interest payable at the Default Rate pursuant to Section 2.02(d).


 


(2)         Borrower
acknowledges and agrees that:


 


(A)         its
failure to make timely payments will cause Lender to incur additional expenses in servicing and processing the Mortgage Loan;


 


(B)         it
is extremely difficult and impractical to determine those additional expenses; and


 


(C)         Lender
is entitled to be compensated for such additional expenses;


 


(D)         the
Late Charge represents a fair and reasonable estimate, taking into account all circumstances existing on the date hereof, of the
additional expenses Lender will incur by reason of any such late payment.


 


(d)          Default
Rate.


 


(1)         Default
interest shall be paid as follows:


 


(A)         If
any amount due on the Mortgage Loan (other than amounts due on the Maturity Date) remains past due for thirty (30) days or more,
interest on such unpaid amount(s) shall accrue from the date payment is due at the Default Rate and shall be payable upon demand
by Lender.


 


(B)         If
any principal, Accrued Interest or other Indebtedness due on the Mortgage Loan is not paid in full on the Maturity Date, then interest
shall accrue at the Default Rate on all such unpaid amounts from the Maturity Date until fully paid and shall be payable upon demand
by Lender.


 


Absent a demand
by Lender, any such amounts shall be payable by Borrower in the same manner as provided for the payment of Monthly Debt Service
Payments. To the extent permitted by applicable law, interest shall also accrue at the Default Rate on any judgment obtained by
Lender against Borrower in connection with the Mortgage Loan.


 


(2)         Borrower
acknowledges and agrees that:


 


(A)         its
failure to make timely payments will cause Lender to incur additional expenses in servicing and processing the Mortgage Loan; and


 




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(B)         in
connection with any failure to timely pay all amounts due in respect of the Mortgage Loan on the Maturity Date, or during the time
that any Monthly Debt Service Payment or other payment due on the Mortgage Loan is delinquent for more than thirty (30) days:


 


(i)          Lender's
risk of nonpayment of the Mortgage Loan will be materially increased;


 


(ii)         Lender's
ability to meet its other obligations and to take advantage of other investment opportunities will be adversely impacted;


 


(iii)        Lender
will incur additional costs and expenses arising from its loss of the use of the amounts due;


 


(iv)        it
is extremely difficult and impractical to determine such additional costs and expenses;


 


(v)         Lender
is entitled to be compensated for such additional risks, costs and expenses; and


 


(vi)
      the increase from the Interest Rate to the Default Rate represents a fair and reasonable estimate of the additional risks,
costs and expenses Lender will incur by reason of Borrower's delinquent payment and the additional compensation Lender is entitled
to receive for the increased risks of nonpayment associated with a delinquency on the Mortgage Loan (taking into account all circumstances
existing on the Effective Date).


 


(e)          Address
for Payments.


 


All
payments due pursuant to the Loan Documents shall be payable at Lender's Payment Address, or such other place and in such manner
as may be designated from time to time by written notice to Borrower by Lender.


 


(f)          Application
of Payments.


 


If
at any time Lender receives, from Borrower or otherwise, any amount in respect of the Indebtedness that is less than all amounts
due and payable at such time, then Lender may apply such payment to amounts then due and payable in any manner and in any order
determined by Lender or hold in suspense and not apply such amount at Lender's election. Neither Lender's acceptance of an amount
that is less than all amounts then due and payable, nor Lender's application of, or suspension of the application of, such payment,
shall constitute or be deemed to constitute either a waiver of the unpaid amounts or an accord and satisfaction. Notwithstanding
the application of any such amount to the Indebtedness, Borrower's obligations under this Loan Agreement and the other Loan Documents
shall remain unchanged.


 




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Section 2.03        Lockout/Prepayment.


 


(a)          Prepayment;
Prepayment Lockout; Prepayment Premium.


 


(1)          Borrower
shall not make a voluntary full or partial prepayment on the Mortgage Loan during any Prepayment Lockout Period nor shall Borrower
make a voluntary partial prepayment at any time. Except as expressly provided in this Loan Agreement (including as provided in
the Prepayment Premium Schedule), a Prepayment Premium calculated in accordance with the Prepayment Premium Schedule shall be payable
in connection with any prepayment of the Mortgage Loan.


 


(2)          If
a Prepayment Lockout Period applies to the Mortgage Loan, and during such Prepayment Lockout Period Lender accelerates the unpaid
principal balance of the Mortgage Loan or otherwise applies collateral held by Lender to the repayment of any portion of the unpaid
principal balance of the Mortgage Loan, the Prepayment Premium shall be due and payable and equal to the amount obtained by multiplying
the percentage indicated (if at all) in the Prepayment Premium Schedule by the amount of principal being prepaid at the time of
such acceleration or application.


 


(b)          Voluntary
Prepayment in Full.


 


At any time after the expiration
of any Prepayment Lockout Period, Borrower may voluntarily prepay the Mortgage Loan in full on a Permitted Prepayment Date so long
as:


 


(1)          Borrower
delivers to Lender a Prepayment Notice specifying the Intended Prepayment Date not more than sixty (60) days, but not less than
thirty (30) days (if given via U.S. Postal Service) or twenty (20) days (if given via facsimile, e-mail or overnight courier) prior
to such Intended Prepayment Date; and


 


(2)          Borrower
pays to Lender an amount equal to the sum of:


 


(A)         the
entire unpaid principal balance of the Mortgage Loan; plus


 


(B)         all
Accrued Interest (calculated through the last day of the month in which the prepayment occurs); plus


 


(C)         the
Prepayment Premium; plus


 


(D)         all
other Indebtedness.


 




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In connection
with any such voluntary prepayment, Borrower acknowledges and agrees that interest shall always be calculated and paid through
the last day of the month in which the prepayment occurs (even if the Permitted Prepayment Date for such month is not the last
day of such month, or if Lender approves prepayment on an Intended Prepayment Date that is not a Permitted Prepayment Date). Borrower
further acknowledges that Lender is not required to accept a voluntary prepayment of the Mortgage Loan on any day other than a
Permitted Prepayment Date. However, if Lender does approve an Intended Prepayment Date that
is not a Permitted Prepayment Date and accepts a prepayment on such Intended Prepayment Date, such prepayment shall be deemed to
be received on the immediately following Permitted Prepayment Date. If Borrower fails to prepay the Mortgage Loan on the Intended
Prepayment Date for any reason (including on any Intended Prepayment Date that is not a Permitted Prepayment Date but is approved
by Lender) and such failure continues for five (5) Business Days or longer, or into the following month (if sooner), Lender may
recalculate the payoff amount. Borrower shall immediately pay to Lender any additional amounts required by any such recalculation.


 


(c)          Acceleration
of Mortgage Loan.


 


Upon acceleration of the
Mortgage Loan, Borrower shall pay to Lender:


 


(I)         the
entire unpaid principal balance of the Mortgage Loan;


 


(2)        all
Accrued Interest (calculated through the last day of the month in which the acceleration occurs);


 


(3)        the
Prepayment Premium; and


 


(4)        all
other Indebtedness.


 


(d)          Application
of Collateral.


 


Any
application by Lender of any collateral or other security to the repayment of all or any portion of the unpaid principal balance
of the Mortgage Loan prior to the Maturity Date in accordance with the Loan Documents shall be deemed to be a prepayment by Borrower.
Any such prepayment shall require the payment to Lender by Borrower of the Prepayment Premium calculated on the amount being prepaid
in accordance with this Loan Agreement.


 


(e)          Casualty
and Condemnation.


 


Notwithstanding
any provision of this Loan Agreement to the contrary, no Prepayment Premium shall be payable with respect to any prepayment occurring
as a result of the application of any insurance proceeds or condemnation award in accordance with this Loan Agreement.


 


(f)          No
Effect on Payment Obligations.


 


Unless
otherwise expressly provided in this Loan Agreement, any prepayment required by any Loan Document of less than the entire unpaid
principal balance of the Mortgage Loan shall not extend or postpone the due date of any subsequent Monthly Debt Service Payments,
Monthly Replacement Reserve Deposit, or other payment, or change the amount of any such payments or deposits.


 




    	7



    	 



    

 


(g)          Loss
Resulting from Prepayment.


 


Borrower acknowledges and agrees that:


 


(1)         any
prepayment of the unpaid principal balance of the Mortgage Loan, whether voluntary or involuntary, or resulting from a default
by Borrower, will result in Lender's incurring loss, including reinvestment loss, additional risk, expense and frustration or impairment
of Lender's ability to meet its commitments to third parties;


 


(2)         it
is extremely difficult and impractical to ascertain the extent of such losses, risks and damages;


 


(3)         the
formula for calculating the Prepayment Premium represents a reasonable estimate of the losses, risks and damages Lender will incur
as a result of a prepayment; and


 


(4)         the
provisions regarding the Prepayment Premium contained in this Loan Agreement are a material part of the consideration for the Mortgage
Loan, and that the terms of the Mortgage Loan are in other respects more favorable to Borrower as a result of Borrower's voluntary
agreement to such prepayment provisions.


 


ARTICLE 3 - PERSONAL
LIABILITY


 


Section 3.01        Non-Recourse
Mortgage Loan; Exceptions.


 


Except
as otherwise provided in this Article 3 or in any other Loan Document, none of Borrower, or any director, officer or employee of
Borrower, shall have personal liability under this Loan Agreement or any other Loan Document for the repayment of the Indebtedness
or for the performance of any other obligations of Borrower under the Loan Documents, and Lender's only recourse for the satisfaction
of such Indebtedness and the performance of such obligations shall be Lender's exercise of its rights and remedies with respect
to the Mortgaged Property and any other collateral held ·by
Lender as security for the Indebtedness. This limitation on Borrower's liability shall not limit or impair Lender's enforcement
of its rights against any Guarantor under any Loan Document.


 


Section 3.02        Personal
Liability of Borrower (Exceptions to Non-Recourse Provision).


 


(a)          Personal
Liability Based on Lender's Loss.


 


Borrower
shall be personally liable to Lender for the repayment of the portion of the Indebtedness equal to any loss or damage suffered
by Lender as a result of:


 


(1)         failure
to pay to Lender upon demand after an Event of Default, all Rents to which Lender is entitled under the Loan Documents and the
amount of all security deposits collected by Borrower from tenants;


 




    	8



    	 



    

 


(2)         failure
to maintain all insurance policies required by the Loan Documents;


 


(3)         failure
to apply all insurance proceeds and any condemnation award as required by the Loan Documents;


 


(4)         failure
to comply with any provision of this Loan Agreement or any other Loan Document relating to the delivery of books and records, statements,
schedules and reports, provided, that such failure to comply has continued for a period of ten (10) days after written notice of
such failure by Lender to Borrower or Guarantor;


 


(5)         failure
to apply Rents to the ordinary and necessary expenses of owning and operating the Mortgaged Property (other than property management
fees that are not currently payable pursuant to the terms of any collateral assignment of property management agreement required
by Lender), and to Debt Service Amounts, except that Borrower will not be personally liable with respect to Rents that are distributed
in any calendar year if Borrower has paid all ordinary and necessary expenses of owning and operating the Mortgaged Property and
Debt Service Amounts for the calendar year that such Rents are attributable; or


 


(6)         waste
or abandonment of the Mortgaged Property; or


 


(7)         grossly
negligent or reckless unintentional material misrepresentation or omission by Borrower, Guarantor, Key Principal, or any officer,
director, partner, member, or shareholder of Borrower, Guarantor, or Key Principal in connection with on-going financial or other
reporting, or any request for action or consent by Lender.


 


provided, however,
Borrower shall not have personal liability under clauses (1), (3), or (5) above to the extent that Borrower lacks the legal right
to direct the disbursement of the applicable funds due to an involuntary Bankruptcy Event that occurs without the consent, encouragement
or active participation of Guarantor, Key Principal or Borrower Affiliate.


 


(b)          Full
Personal Liability for Mortgage Loan.


 


Borrower
shall be personally liable to Lender for the repayment of all of the Indebtedness, and the Mortgage Loan shall be fully recourse
to Borrower, upon the occurrence of any of the following:


 


(1)         failure
by Borrower to comply with the single-asset entity requirements of Section 4.02(d) this Loan Agreement;


 


(2)         a
Transfer (other than a conveyance of the Mortgaged Property at a Foreclosure Event pursuant to the Security Instrument and this
Loan Agreement) that is not permitted under this Loan Agreement or any other Loan Document;


 




    	9



    	 



    

 


(3)         the
occurrence of any Bankruptcy Event (other than an acknowledgement in writing as described in clause (b) of the definition of "Bankruptcy
Event" or the appointment of a receiver, liquidator, custodian, sequestrator, trustee, or similar officer made at the request
of Lender); provided, however, in the event of an involuntary Bankruptcy Event, Borrower shall only be personally liable
if such involuntary Bankruptcy Event occurs with the consent, encouragement or active participation of Borrower, Guarantor, Key
Principal or any Borrower Affiliate;


 


(4)         fraud,
written material misrepresentation or material om1ss1on by Borrower, Guarantor, Key Principal, or any officer, director, partner,
member, or shareholder of Borrower, Guarantor, or Key Principal in connection with any application for or creation of the Indebtedness;
or


 


(5)         fraud,
written intentional material misrepresentation or intentional material omission by Borrower, Guarantor, Key Principal, or any officer,
director, partner, member, or shareholder of Borrower, Guarantor, or Key Principal in connection with on-going financial or other
reporting, or any request for action or consent by Lender.


 


Section 3.03         Personal
Liability for Indemnity Obligations.


 


Borrower
shall be personally and fully liable to Lender for Borrower's indemnity obligations under Section 13.01(e), the Environmental Indemnity
Agreement and any other indemnity provided by Borrower under any other Loan Document. Borrower's liability for such indemnity obligations
shall not be limited by the amount of the Indebtedness, the repayment of the Indebtedness, or otherwise. Subject to any liability
under Article 3 of the Guaranty or any other Loan Documents executed by any such party, Lender agrees that the satisfaction for
such indemnity obligations shall be limited to the assets of Borrower, and Lender shall not seek to recover any deficiency from
any entities or natural persons who are (1) general partners, managers or members of Borrower, or (2) general or limited partners,
managers, members, officers, directors or shareholders of an entity that directly or indirectly owns any interests in Borrower.


 


Section 3.04         Lender's
Right to Forego Rights Against Mortgaged Property.


 


To
the extent that Borrower has personal liability under this Loan Agreement or any other Loan Document, Lender may exercise its rights
against Borrower personally to the fullest extent permitted by applicable law without regard to whether Lender has exercised any
rights against the Mortgaged Property, the UCC Collateral or any other security, or pursued any rights against any Guarantor, or
pursued any other rights available to Lender under this Loan Agreement, any other Loan Document or applicable law. For purposes
of this Section 3.04 only, the term "Mortgaged Property" shall not include any funds that have been applied by Borrower
as required or permitted by this Loan Agreement prior to the occurrence of an Event of Default, or that Borrower was unable to
apply as required or permitted by this Loan Agreement because of a Bankruptcy Event. To the fullest extent permitted by applicable
law, in any action to enforce Borrower's personal liability under this Article 3, Borrower waives any right to set off the value
of the Mortgaged Property against such personal liability.


 




    	10



    	 



    

 


ARTICLE 4 - BORROWER
STATUS


 


Section 4.01        Representations
and Warranties.


 


The
representations and warranties made by Borrower to Lender in this Section 4.01 are made as of the Effective Date, and are true
and correct as of the Effective Date except as disclosed on the Exceptions to Representations and Warranties Schedule.


 


(a)          Due
Organization and Qualification.


 


Borrower
is validly existing and qualified to transact business and is in good standing in the state in which it is formed or organized,
the Property Jurisdiction and in each other jurisdiction that qualification or good standing is required according to applicable
law to conduct its business with respect to the Mortgaged Property and where the failure to be so qualified or in good standing
would adversely affect Borrower's operation of the Mortgaged Property or the validity, enforceability or the ability of Borrower
to perform its obligations under this Loan Agreement or any other Loan Document.


 


(b)          Location.


 


Borrower's
General Business Address is Borrower's principal place of business and principal office.


 


(c)          Power
and Authority.


 


Borrower
has the requisite power and authority:


 


(1)         to
own the Mortgaged Property and to carry on its business as now conducted and as contemplated to be conducted in connection with
the performance of its obligations under this Loan Agreement and under the other Loan Documents to which it is a party; and


 


(2)         to
execute and deliver this Loan Agreement and the other Loan Documents to which it is a party, and to carry out the transactions
contemplated by this Loan Agreement and the other Loan Documents to which it is a party.


 


(d)          Due
Authorization.


 


The
execution, delivery and performance of this Loan Agreement and the other Loan Documents to which it is a party have been duly authorized
by all necessary action and proceedings by or on behalf of Borrower, and no further approvals or filings of any kind, including
any approval of or filing with any Governmental Authority, are required by or on behalf of Borrower as a condition to the valid
execution, delivery and performance by Borrower of this Loan Agreement or any of the other Loan Documents to which it is a party,
except filings required to perfect and maintain the liens to be granted under the Loan Documents and routine filings to maintain
good standing and its existence.


 




    	11



    	 



    

 


(e)          Valid
and Binding Obligations.


 


This
Loan Agreement and the other Loan Documents to which it is a party have been duly executed and delivered by Borrower and constitute
the legal, valid and binding obligations of Borrower, enforceable against Borrower in accordance with their respective terms, except
as such enforceability may be limited by applicable Insolvency Laws or by the exercise of discretion by any court.


 


(f)          Effect
of Mortgage Loan on Borrower's Financial Condition.


 


Borrower
is not presently Insolvent and the Mortgage Loan will not render Borrower Insolvent. Borrower has sufficient working capital, including
proceeds from the Mortgage Loan, cash flow from the Mortgaged Property, or other sources, not only to adequately maintain the Mortgaged
Property, but also to pay all of Borrower's day-to-day debts as they are incurred in the ordinary course of business, such as trade
payables.


 


(g)          Economic
Sanctions, Anti-Money Laundering and Anti-Corruption.


 


(1)         None
of Borrower, any Guarantor or any Key Principal, or any Principal, nor to Borrower's knowledge, its general partners, managing
members, managers (if non-member managed), or any Person owning a Controlling Interest in any of them is in
violation of:


 


(A)         any
applicable anti-money laundering laws, including those contained in the Bank Secrecy Act; and


 


(B)         any
applicable anti-drug trafficking, anti-terrorism, or anti- corruption laws, civil or criminal.


 


(2)         None
of Borrower, any Guarantor, any Key Principal, or any Principal, nor to Borrower's knowledge, its general partners, managing members,
managers (if non- member managed), or any Person owning a Controlling Interest in any of them is a Person:


 


(A)         that
is charged with, or has reason to believe that he, she or it is under investigation for, any violation of any such laws;


 


(B)         that
has been convicted of any violation of, has been subject to civil penalties pursuant to, or had any of its property seized or forfeited
under, any such laws;


 


(C)         with
whom any United States Person, any entity organized under the laws of the United States or its constituent states or territories,
or any entity, regardless of where organized, having its principal place of business within the United States or any of its territories,
is prohibited from transacting business of the type contemplated by this Loan Agreement and
the other Loan Documents under any other applicable law; or


 




    	12



    	 



    

 


(D)         [Intentionally
Deleted].


 


(3)         None
of Borrower, any Guarantor, any Key Principal, nor to Borrower's knowledge, its general partners, managing members, managers (if
non-member managed), or any Person owning a Controlling Interest in any of them is in violation of any obligation to maintain appropriate
internal controls as required by the governing laws of the jurisdiction of such Person as are necessary to ensure compliance with
the economic sanctions, anti-money laundering, and anti-corruption laws of the United States and the jurisdiction where the Person
resides, is domiciled or has its principal place of business.


 


(4)         Borrower,
Guarantor and Key Principal are in compliance with all applicable economic sanctions laws administered by OFAC, the United States
Department of State, or the United States Department of Commerce.


 


(h)         Borrower
Single Asset Status.


 


Borrower:


 


(1)         does
not own any real property, personal property or assets other than the Mortgaged Property;


 


(2)         does
not own, operate or participate in any business other than the management and operation of the Mortgaged Property;


 


(3)         has
no material financial obligation under any indenture, mortgage, deed of trust, deed to secure debt, loan agreement or other agreement
or instrument to which Borrower is a party or by which Borrower or the Mortgaged Property is otherwise bound, other than unsecured
obligations incurred in the ordinary course of the operation of the Mortgaged Property and obligations under the Loan Documents,
obligations secured by the Mortgaged Property to the extent permitted by the Loan Documents, and any ground lease approved in writing
by Lender;


 


(4)         has
accurately maintained its financial statements, accounting records and other partnership, real estate investment trust, limited
liability company or corporate documents, as the case may be, separate from those of any other Person;


 


(5)         has
not commingled its assets or funds with those of any other Person unless such assets or funds can be segregated and identified;


 


(6)         has
been adequately capitalized in light of its contemplated business operations;


 




    	13



    	 



    

 


(7)         has
not assumed, guaranteed or become obligated for the liabilities of any other Person (except in connection with the Mortgage Loan
or the endorsement of negotiable instruments in the ordinary course of business) or held out its credit as being available to satisfy
the obligations of any other Person; and


 


(8)         has
not entered into, and was not a party to, any transaction with any Borrower Affiliate, except in the ordinary course of business
and on terms which are no more favorable to any such Borrower Affiliate than would be obtained in a comparable arm's length transaction
with an unrelated third party.


 


(i)          No
Bankruptcies or Judgments.


 


None
of Borrower, any Guarantor, any Key Principal, or any Principal, nor to Borrower's knowledge, its general partners, managing members,
managers (if non-member managed), or any Person owning a Controlling Interest in any of them is currently:


 


(1)         the
subject of or a party to any completed or pending bankruptcy, reorganization, including any receivership or other insolvency proceeding;


 


(2)         preparing
or intending to be the subject of a Bankruptcy Event; or


 


(3)         the
subject of any judgment unsatisfied of record or docketed in any court; or


 


(4)         Insolvent.


 


(j)          No
Litigation.


 


There
are no actions, suits or proceedings at law or in equity by or before any Governmental Authority now pending or, to Borrower's
knowledge, threatened against or affecting Borrower, any Guarantor, any Key Principal, any Principal or the Mortgaged Property.


 


(k)          Payment
of Taxes, Assessments and Other Charges.


 


Borrower
confirms that:


 


(1)         it
has filed all federal, state, county and municipal tax returns and reports required to have been filed by Borrower;


 


(2)         it
has paid all taxes, governmental charges and assessments due and payable with respect to the returns and reports described in Section
4.0l(k)(l) above (or it has obtained permitted extensions for payment of the same and is in compliance with such extensions);


 


(3)         there
is no controversy or objection pending, or to the knowledge of Borrower, threatened in respect of any tax returns of Borrower;
and


 




    	14



    	 



    

 


(4)         it
has made, to the extent required by applicable law or generally accepted accounting principles, adequate reserves on its books
and records for all taxes payable by Borrower that have accrued but which are not yet due and payable.


 


(l)          Not
a Foreign Person.


 


Borrower
is not a "foreign person" within the meaning of Section 1445(f)(3) of the Internal Revenue Code.         ·


 


(m)        ERISA.


 


Borrower
acknowledges that:


 


(1)         it
has no Employee Benefit Plan and does not maintain or sponsor an Employee Benefit Plan intended to meet the requirements of a "qualified
plan" under Section 401(a) of the Internal Revenue Code;


 


(2)         it
does not maintain, sponsor or contribute to any Employee Benefit Plan that is subject to Title IV of ERISA or Section 412 of the
Internal Revenue Code;


 


(3)         it
has not engaged in a non-exempt ''prohibited transaction" described in Section 406 of BRISA or Section 4975 of the Internal
Revenue Code that could result in an assessment of a civil penalty under Section 502(i) of BRISA or excise tax under Section 4975
of the Internal Revenue Code and none of the assets of Borrower constitute "plan assets" (within the meaning of Department
of Labor Regulation Section 2510.3-101) of any Employee Benefit Plan subject to Title I of ERISA;


 


(4)         it
has not incurred any "withdrawal liability'' and no "reportable event" has occurred (as such terms are described
in Title IV of BRISA) with respect to any such Employee Benefit Plan, unless approved by the appropriate Governmental Authority;


 


(5)         none
of Borrower, any general partner, manager (if non-member managed), or managing member of Borrower, or any Guarantor, Principal,
or Key Principal, or any person under common control with Borrower, is or ever has been obligated to contribute to any ''multiemployer
plan" (as defined in Section 3(37) of BRISA; and


 


(6)         it
has no unpaid obligations or liabilities that have not been discharged arising under BRISA of a character which if unpaid or unperformed
might result in the imposition of a Lien against any of its properties or assets, including satisfaction of any plan funding requirements.


 


(n)          Default
Under Other Obligations.


 


(1)         The
execution, delivery and performance of the obligations imposed on Borrower under this Loan Agreement and the Loan Documents to
which it is a party will not cause Borrower to be in default under the provisions of any agreement, judgment or order to which
Borrower is a party or by which such Borrower is bound.


 




    	15



    	 



    

 


(2)         None
of Borrower, any general partner, manager (if non-member managed) or managing member of Borrower, or any Guarantor, Principal or
Key Principal is in default under any obligation to Lender.


 


(o)          Prohibited
Person.


 


None
of Borrower, any Guarantor, or any Key Principal or any Principal, nor to Borrower's knowledge, its general partners, managing
members, managers (if non-member managed) or any Person owning a Controlling Interest in any of them is a Prohibited Person.


 


Section 4.02        Covenants.


 


(a)          Maintenance
of Existence; Organizational Documents.


 


Borrower
shall maintain its existence, its entity status, franchises, rights and privileges under the laws of the state of its formation
or organization (as applicable). Borrower shall continue to be duly qualified and in good standing to transact business in each
jurisdiction that qualification or standing is required according to applicable law to conduct its business with respect to the
Mortgaged Property and where the failure to do so would adversely affect Borrower's operation of the Mortgaged Property or the
validity, enforceability or the ability of Borrower to perform its obligations under this Loan Agreement or any other Loan Document.
Borrower shall not make any material change to its organizational documents, including changes relating to control of, or the ability
to oversee management and day-to-day operations of, Borrower, without Lender's prior written consent.


 


(b)          Anti-Money
Laundering, Anti-Corruption and Economic Sanctions.


 


(1)         Borrower
shall at all times remain, and shall cause its general partners, managing members and managers (if non-member managed), and any
Guarantor, Key Principal, Principal, and any Person owning a Controlling Interest in any of them to remain, in compliance with:


 


(A)         any
applicable anti-money laundering laws, including those contained in the Bank Secrecy Act; and


 


(B)         any
applicable anti-drug trafficking, anti-terrorism, or anti-corruption laws, civil or criminal.


 


(2)         At
no time shall Borrower, or its general partners, managing members, managers (if non-member managed), any Guarantor, Key Principal,
Principal, or any Person owning a Controlling Interest in any of them, be a Person:


 




    	16



    	 



    

 


(A)         that
is charged with, or has reason to believe that he, she or it is under investigation for, any violation of any such laws;


 


(B)         that
has been convicted of any violation of, has been subject to civil penalties pursuant to, or had any of its property seized or forfeited
under, any such laws;


 


(C)         with
whom any United States Person, any entity organized under the laws of the United States or its constituent states or territories,
or any entity, regardless of where organized, having its principal place of business within the United States or any of its territories,
is prohibited from transacting business of the type contemplated by this Loan Agreement and the other Loan Documents under any
other applicable law; or


 


(D)         [Intentionally
Deleted].


 


(3)         At
no time shall Borrower, its general partners, managing members, managers, non-member managers, any Guarantor, Key Principal, Principal
and any Person owning a Controlling Interest in any of them, be a Person in violation of any obligation to maintain appropriate
internal controls as required by the governing laws of the jurisdiction of such Person as are necessary to ensure compliance with
the economic sanctions, anti-money laundering, and anti-corruption laws of the United States and the jurisdiction where the Person
resides, is domiciled or has its principal place of business.


 


(4)         Borrower
shall at all times remain, and shall cause Guarantor and Key Principal to remain, in compliance with any applicable economic sanctions
laws administered by OFAC, the United States Department of State, or the United States Department of Commerce.


 


(c)          Payment
of Taxes, Assessments and Other Charges.


 


Borrower
shall file all federal, state, county and municipal tax returns and reports required to be filed by Borrower and shall pay, before
any fine, penalty, interest or cost may be added thereto, all taxes payable with respect to such returns and reports.


 


(d)          Borrower
Single Asset Status.


 


Until
the Indebtedness is fully paid, Borrower:


 


(1)         shall
not acquire any real property, personal property or assets other than the Mortgaged Property;


 


(2)         shall
not own, operate or participate in any business other than the management and operation of the Mortgaged Property;


 




    	17



    	 



    

 


(3)         shall
not commingle its assets or funds with those of any other Person unless such assets or funds can be segregated and identified;


 


(4)         shall
accurately maintain its financial statements, accounting records and other partnership, real estate investment trust, limited liability
company or corporate documents, as the case may be, separate from those of any other Person;


 


(5)         shall
not assume, guaranty or become obligated for, the liabilities of any other Person (except in connection with the Mortgage Loan
or the endorsement of negotiable instruments in the ordinary course of business) or hold out its credit as being available to satisfy
the obligations of any other Person; or


 


(6)         shall
not enter into, or become a party to, any transaction with any Borrower Affiliate, except in the ordinary course of business and
on terms which are no more favorable to any such Borrower Affiliate than would be obtained in a comparable arm's length transaction
with an unrelated third party.


 


(e)          ERISA.


 


Borrower
acknowledges that:


 


(1)         it
shall not maintain or sponsor an Employee Benefit Plan or fail to comply with the requirements of a "qualified plan"
under Section 401(a) of the Internal Revenue Code;


 


(2)         it
shall not maintain, sponsor or contribute to any Employee Benefit Plan that is subject to Title IV of BRISA or Section 412 of the
Internal Revenue Code;


 


(3)         it
shall not engage in a non-exempt "prohibited transaction" described in Section 406 of BRISA or Section 4975 of the Internal
Revenue Code that could result in an assessment of a civil penalty under Section 502(i) of BRISA or excise tax under Section 4975
of the Internal Revenue Code, and none of the assets of Borrower shall constitute "plan assets" (within the meaning of
Department of Labor Regulation Section 2510.3-101) of any Employee Benefit Plan subject to Title I of BRISA;


 


(4)         it
shall not incur any ''withdrawal liability" or trigger a "reportable event" (as such terms are described in Title
IV of BRISA) with respect to any such Employee Benefit Plan, unless approved by the appropriate Governmental Authority;


 


(5)         none
of Borrower, any general partner, manager, managing member or Principal of Borrower, or any Guarantor or Key Principal, or any
person under common control with Borrower, shall withdraw from any Employee Benefit Plan that is a "multiemployer plan"
(as defined in Section 3(37) of BRISA); and


 




    	18



    	 



    

 


(6)         it
shall not incur any liabilities under BRISA that if unpaid or unperformed might result in the imposition of a Lien against any
of its properties or assets, including satisfaction of any plan funding requirements.


 


(f)          Notice
of Litigation or Insolvency.


 


Borrower
shall give immediate written notice to Lender of any claims, actions, suits or proceedings at law or in equity (including any insolvency,
bankruptcy or receivership proceeding) by or before any Governmental Authority pending or, to Borrower's knowledge, threatened
against or affecting Borrower, any Guarantor, any Key Principal, any Principal or the Mortgaged Property, which claims, actions,
suits or proceedings, if adversely determined would reasonably be expected to materially adversely affect the financial condition
or business of Borrower, any Guarantor, any Key Principal or any Principal or the condition or ownership of the Mortgaged Property
(including any claims, actions, suits or proceedings regarding fair housing, anti-discrimination, or equal opportunity, which shall
always be deemed material).


 


(g)          Payment
of Costs, Fees, and Expenses.


 


In
addition to the payments specified in this Loan Agreement, Borrower shall pay, on demand, all of Lender's out-of-pocket fees, costs,
charges or expenses (including the reasonable fees and expenses of attorneys, accountants, and other experts) incurred by Lender
in connection with:


 


(1)         any
amendment to, or consent, or waiver required under this Loan Agreement or any of the Loan Documents (whether or not any such amendments,
consents, or waivers are entered into);


 


(2)         defending
or participating in any litigation arising from actions by third parties and brought against or involving Lender with respect to:


 


(A)         the
Mortgaged Property;


 


(B)         any
event, act, condition, or circumstance in connection with the Mortgaged Property; or


 


(C)         the
relationship between Lender, Borrower, Key Principal and Guarantor in connection with this Loan Agreement or any of the transactions
contemplated by this Loan Agreement;


 


(3)         the
administration or enforcement of, or preservation of rights or remedies under, this Loan Agreement or any other Loan Documents
including or in connection with any litigation or appeals, any Foreclosure Event or other disposition of any collateral granted
pursuant to the Loan Documents;


 


(4)         any
Bankruptcy Event or Guarantor Bankruptcy Event;


 




    	19



    	 



    

 


(5)         any
disclosure documents, including fees payable to any rating agencies, including the reasonable fees and expenses of Lender's attorneys
and accountants.


 


ARTICLE 5 - THE MORTGAGE
LOAN


 


Section 5.01        Representations
and Warranties.


 


The
representations and warranties made by Borrower to Lender in this Section 5.01 are made as of the Effective Date, and are true
and correct as of the Effective Date except as disclosed on the Exceptions to Representations and Warranties Schedule.


 


(a)          Receipt
and Review of Loan Documents.


 


Borrower
has received and reviewed this Loan Agreement and all of the other Loan Documents.


 


(b)          No
Default.


 


Borrower
has no knowledge that an Event of Default exists under any of the Loan Documents. The execution, delivery and performance of the
obligations imposed on Borrower under the Loan Documents will not cause Borrower to be in default under the provisions of any agreement,
judgment or order to which Borrower is a party or by which Borrower is bound.


 


Section 5.02        Covenants.


 


(a)          Ratification
of Covenants; Estoppels; Certifications.


 


Borrower
shall:


 


(1)         promptly
notify Lender in writing upon any violation of any covenant set forth in any Loan Document; provided, however, any
such notice by Borrower shall not relieve Borrower of, or result in a waiver of, any obligation under this Loan Agreement or any
other Loan Document; and


 


(2)         within
ten (10) days after a request from Lender, provide a written statement, signed and acknowledged by Borrower, certifying to Lender
or any person designated by Lender, as of the date of such statement:


 


(A)         that
the Loan Documents are unmodified and in full force and effect (or, if there have been modifications, that the Loan Documents are
in full force and effect as modified and setting forth such modifications);


 


(B)         the
unpaid principal balance of the Mortgage Loan;


 


(C)         the
date to which interest on the Mortgage Loan has been paid;


 




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(D)         that
Borrower is not in default in paying the Indebtedness or in performing
or observing any of the covenants or agreements contained in this Loan Agreement or any of the other Loan Documents (or, if Borrower
is in default, describing such default in reasonable detail);


 


(E)         whether
or not there are then existing any setoffs or defenses known to Borrower against the enforcement of any right or remedy of Lender
under the Loan Documents; and


 


(F)         any
additional facts requested by Lender.


 


(b)          Further
Assurances.


 


(1)         Other
Documents As Lender May Require.


 


Borrower
shall execute, acknowledge and deliver within ten (10) days of the request, at its cost and expense, all further acts, deeds, conveyances,
assignments, financing statements, transfers and assurances as Lender may reasonably require from time to time in order to better
assure, grant and convey to Lender the rights intended to be granted, now or in the future, to Lender under this Loan Agreement
and the other Loan Documents.


 


(2)         Corrective
Actions.


 


Borrower
shall provide, or cause to be provided, to Lender within ten (10) days of the request, at Borrower's cost and expense, such further
documentation or information deemed necessary or appropriate by Lender in the exercise of its rights under the related commitment
letter between Borrower and Lender or to correct patent mistakes in the Loan Documents, the Title Policy or the funding of the
Mortgage Loan.


 


(c)          Sale
of Mortgage Loan.


 


Borrower
shall:


 


(1)         do
anything necessary to comply with the reasonable requirements of Lender or any Investor of the Mortgage Loan or provide, or cause
to be provided, to Lender or any Investor of the Mortgage Loan within ten (10) days of the request, at Borrower's cost and expense,
such further documentation or information reasonably required by Lender or Investor, in order to enable:


 


(A)         Lender
to sell the Mortgage Loan to such Investor;


 


(B)         Lender
to obtain a refund of any commitment fee from any such Investor; or


 


(C)         any
such Investor to further sell or securitize the Mortgage Loan;


 




    	21



    	 



    

 


(2)         ratify
and affirm in writing the representations and warranties set forth in any Loan Document as of such date specified by Lender modified
as necessary to reflect changes that have occurred subsequent to the Effective Date;


 


(3)         confirm
that Borrower is not in default in paying the Indebtedness or, to its knowledge, in performing or observing any of the covenants
or agreements contained in this Loan Agreement or any of the other Loan Documents (or, if Borrower is in default, describing such
default in reasonable detail); and


 


(4)         execute
and deliver to Lender and/or any Investor such other documentation, including any amendments, corrections, deletions or additions
to this Loan Agreement or other Loan Document(s) as is reasonably required by Lender or such Investor.


 


(d)          Limitations
on Further Acts of Borrower.


 


Nothing
in Section 5.02(b)(2) or Section 5.02(c) shall require Borrower to do any further act that has the effect of:


 


(1)         changing
the economic terms of the Mortgage Loan set forth in the related commitment letter between Borrower and Lender; or


 


(2)         imposing
on Borrower greater personal liability under the Loan Documents than that set forth in the related commitment letter between Borrower
and Lender.


 


(e)          Financing
Statements; Record Searches.


 


(1)         Borrower
shall pay all filing costs and all costs and expenses associated with any filing or recording of:


 


(A)         any
financing statements, including all continuation statements, termination statements and amendments or any other filings related
to security interests in or liens on collateral; and


 


(B)         any
record searches for financing statements that Lender may reasonably require.


 


(2)         Borrower
hereby authorizes Lender to file any financing statements, continuation statements, termination statements and amendments as Lender
may require in order to protect and preserve Lender's lien priority and security interest in the Mortgaged Property (and to the
extent Lender has filed any such financing statements, continuation statements or amendments prior to the Effective Date, such
filings by Lender are hereby authorized and ratified by Borrower).


 




    	22



    	 



    

 


ARTICLE 6 - PROPERTY
USE, PRESERVATION AND MAINTENANCE


 


Section 6.01         Representations
and Warranties.


 


The
representations and warranties made by Borrower to Lender in this Section 6.01 are made as of the Effective Date, and are true
and correct as of the Effective Date except as disclosed on the Exceptions to Representations and Warranties Schedule.


 


(a)          Compliance
with Law; Permits and Licenses.


 


(1)         To
Borrower's knowledge, all improvements to the Land and the use of the Mortgaged Property comply with all applicable laws, ordinances,
statutes, rules and regulations, including all applicable statutes, rules and regulations pertaining to requirements for equal
opportunity, anti-discrimination, fair housing and environmental protection.


 


(2)         To
Borrower's knowledge, there is no evidence of any illegal activities on the Mortgaged Property.


 


(3)         To
Borrower's knowledge, no permits or approvals from any Governmental Authority, other than those previously obtained and furnished
to Lender, are necessary for the commencement and completion of the Repairs or Replacements, as applicable.


 


(4)         To
Borrower's knowledge, all required permits, licenses and certificates to comply with all zoning and land use statutes, laws, ordinances,
rules and regulations, and all applicable health, fire, safety and building codes, and for the lawful use and operation of the
Mortgaged Property, including certificates of occupancy, apartment licenses or the equivalent, have been obtained and are in
full force and effect.


 


(5)         No
portion of the Mortgaged Property has been purchased with the proceeds of any illegal activity.


 


(b)          Property
Characteristics.


 


(1)         The
Mortgaged Property contains not less than:


 


(A)         the
Property Square Footage;


 


(B)         the
Total Parking Spaces; and


 


(C)         the
Total Residential Units.


 


(2)         No
part of the Land is included or assessed under or as part of another tax lot or parcel, and no part of any other property is included
or assessed under or as part of the tax lot or parcels for the Land.


 




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(c)          Property
Ownership.


 


Borrower
is sole owner of the Mortgaged Property.


 


Section 6.02        Covenants


 


(a)          Use
of Property.


 


From
and after the Effective Date, Borrower shall not, unless required by applicable law or Governmental Authority:


 


(1)         allow
changes in the use of all or any part of the Mortgaged Property;


 


(2)         convert
any individual dwelling units or common areas to commercial use;


 


(3)         initiate
or acquiesce in a change in the zoning classification of the Land;


 


(4)         establish
any condominium or cooperative regime with respect to the Mortgaged Property; or


 


(5)         subdivide
the Land.


 


(b)          Property
Maintenance.


 


Borrower
shall:


 


(1)         pay
the expenses of operating, managing, maintaining and repairing the Mortgaged Property (including insurance premiums, utilities,
Repairs and Replacements) before the last date upon which each such payment may be made without
any penalty or interest charge being added;


 


(2)         keep
the Mortgaged Property in good repair and marketable condition (including the replacement of Personalty and Fixtures with items
of equal or better function and quality) and subject to Section 9.03(b) restore or repair promptly, in a good and workmanlike manner,
with reasonable wear and tear excepted, any damaged part of the Mortgaged Property to the equivalent of its original condition
or condition immediately prior to the damage (if improved after the Effective Date) or such other condition as Lender may approve
in writing, whether or not insurance proceeds are or any condemnation award is available to cover any costs of such restoration
or repair;


 


(3)         commence
all Required Repairs, Additional Lender Repairs and Additional Lender Replacements as follows:


 


(A)         with
respect to any Required Repairs, promptly following the Effective Date (subject to weather conditions or Force Majeure Delays,
if applicable), in accordance with the timelines set forth on the Required Repair Schedule,
or if no timelines are provided, as soon as practical following the Effective Date;


 




    	24



    	 



    

 


(B)         with
respect to Additional Lender Repairs, in the event that Lender determines that Additional Lender Repairs are necessary from time
to time or pursuant to Section 6.03(c), promptly following Lender's notice of such Additional Lender Repairs (subject to weather
conditions or Force Majeure Delays, if applicable), commence any such Additional Lender Repairs in accordance with Lender's timelines,
or if no timelines are provided, as soon as practical;


 


(C)         with
respect to Additional Lender Replacements, in the event that Lender determines that Additional Lender Replacements are necessary
from time to time or pursuant to Section 6.03(c), promptly following Lender's notice of such Additional Lender Replacements (subject
to weather conditions or Force Majeure Delays, if applicable), commence any such Additional Lender Replacements in accordance with
Lender's timelines, or if no timelines are provided, as soon as practical;


 


(4)         make,
construct, install, diligently perform and complete all Replacements and Repairs:


 


(A)         in
a good and workmanlike manner as soon as practicable following the commencement thereof (subject to weather conditions or Force
Majeure Delays, if applicable), free and clear of any Liens, including mechanics' or materialmen's liens and encumbrances (except
for Permitted Encumbrances);


 


(B)         in
accordance with all applicable laws, ordinances, rules and regulations of any Governmental Authority including applicable building
codes, special use permits and environmental regulations;


 


(C)         in
accordance with all applicable insurance requirements; and


 


(D)         within
all timeframes required by Lender, and Borrower acknowledges that it shall be an Event of Default if Borrower abandons or ceases
work on any Repair at any time prior to the completion of the Repairs for a period of longer than twenty (20) days (except when
such cessation results from causes beyond the control of Borrower and Borrower is diligently pursuing the reinstitution of such
work, provided however any such abandonment or cessation shall not in
any event allow the Repair to be completed after the Completion Period); and


 


(5)         subject
to the terms of Section 6.03(a) provide for professional management of the Mortgaged Property by a residential rental property
manager satisfactory to Lender under a contract approved by Lender in writing;


 




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(6)         give
notice to Lender of, and, unless otherwise directed in writing by Lender, appear in and defend any action or proceeding purporting
to affect the Mortgaged Property, Lender's security for the Mortgage Loan or Lender's rights under this Loan Agreement; and


 


(7)         upon
Lender's request, submit to Lender any contracts or work orders described in Section 13.02(b).


 


(c)          Property
Preservation.


 


Borrower
shall:


 


(1)         not
commit waste, or abandon or permit impairment or deterioration (reasonable wear and tear excepted) of the Mortgaged Property;


 


(2)         subject
to the provisions of Article 9, and except as otherwise permitted herein in connection with Repairs and Replacements, not remove,
demolish or alter the Mortgaged Property or any part of the Mortgaged Property (or permit any tenant or any other person to do
the same) except in connection with the replacement of tangible Personalty or Fixtures (provided such Personalty and Fixtures are
replaced with items of equal or better function and quality);


 


(3)         not
engage in or knowingly permit, and shall take appropriate measures to prevent and abate or cease and desist, any illegal activities
at the Mortgaged Property that could endanger tenants or visitors, result in damage to the Mortgaged Property, result in forfeiture
of the Land or otherwise materially impair the lien created by the Security Instrument or Lender's interest in the Mortgaged Property;


 


(4)         not
permit any condition to exist on the Mortgaged Property that would invalidate any part of any insurance coverage required by this
Loan Agreement; or


 


(5)         not
subject the Mortgaged Property to any voluntary, elective or non- compulsory tax lien or assessment (or opt in to any voluntary,
elective or non-compulsory special tax district or similar regime).


 


(d)          Property
Inspections. 


 


Borrower
shall:


 


(1)         permit
Lender, its agents, representatives and designees to enter upon and inspect the Mortgaged Property (including in connection with
any replacement, repair or environmental inspections}, and shall cooperate and provide access to all areas of the Mortgaged Property
(subject to the rights of tenants under the Leases and applicable laws) during normal business hours or at such other reasonable
time upon reasonable notice, and at any time during the continuance of an Event of Default or when exigent circumstances exist;
and


 




    	26



    	 



    

 


(2)         pay
for reasonable costs or expenses incurred by Lender or its agents in connection with any such inspections.


 


(e)          Compliance
with Laws.


 


Borrower
shall:


 


(1)         comply
with all laws, ordinances, statutes, rules and regulations of any Governmental Authority and all recorded lawful covenants and
agreements relating to or affecting the Mortgaged Property, including all laws, ordinances, statutes, rules and regulations and
covenants pertaining to construction of improvements on the Land, fair housing and requirements for equal opportunity, anti-discrimination,
environmental protection and Leases;


 


(2)         maintain
all required permits, licenses and certificates necessary to comply with all zoning and land use statutes, laws, ordinances, rules
and regulations, and all applicable health, fire, safety and building codes and for the lawful use and operation of the Mortgaged
Property, including certificates of occupancy, apartment licenses or the equivalent;


 


(3)         comply
with all applicable laws that pertain to the maintenance and disposition of tenant security deposits;


 


(4)         at
all times maintain records sufficient to demonstrate compliance with the provisions of this Section 6.02(e); and


 


(5)         promptly
after receipt of written notification thereof, provide Lender copies of any building code or zoning violation from any Governmental
Authority with respect to the Mortgaged Property.


 


Section 6.03        Mortgage
Loan Administration Matters Regarding the Property.


 


(a)          Property
Management.


 


From
and after the Effective Date, each property manager and each property management agreement must be approved by Lender. If, in connection
with the making of the Mortgage Loan, or at any later date, Lender waives in writing the requirement that Borrower enter into a
written contract for management of the Mortgaged Property, and Borrower later elects to enter into a written contract or change
the management of the Mortgaged Property, such new property manager or the property management agreement must be approved by Lender.
As a condition to any approval by Lender, Lender may require that Borrower and such new property manager enter into a collateral
assignment of the property management agreement on a form approved by Lender.


 




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(b)          Subordination
of Fees to Affiliated Property Managers.


 


Any
Property Manager that is a Borrower Affiliate to whom fees are payable for the management of the Mortgaged Property must enter
into a collateral agreement with Lender, in a form approved by Lender, providing for subordination of those fees and such other
provisions as Lender may require.


 


(c)          Physical
Needs Assessment.


 


If,
in connection with any inspection of the Mortgaged Property, Lender determines that the condition of the Mortgaged Property has
deteriorated (reasonable wear and tear excepted) since the Effective Date, Lender may obtain, at Borrower's expense, a physical
needs assessment of the Mortgaged Property. Lender's right to obtain a physical needs assessment pursuant to this Section 6.03(c)
shall be in addition to any other rights available to Lender under this Loan Agreement in connection with any such deterioration.
Any such inspection or physical needs assessment may result in Lender requiring Additional Lender Repairs or Additional Lender
Replacements as further described in Section 13.02(a)(9)(B).


 


ARTICLE 7 - LEASES AND
RENTS


 


Section 7.01         Representations
and Warranties.


 


The
representations and warranties made by Borrower to Lender in this Section 7.01 are made as of the Effective Date, and are true
and correct as of the Effective Date except as disclosed on the Exceptions to Representations and Warranties Schedule.


 


(a)          Prior
Assignment of Rents. 


 


Borrower
has not executed any:


 


(1)         prior
assignment of Rents (other than an assignment of Rents securing prior indebtedness that has been paid off and discharged or will
be paid off and discharged with the proceeds of the Mortgage Loan); or


 


(2)         instrument
which would prevent Lender from exercising its rights under this Loan Agreement or the Security Instrument.


 


(b)          Prepaid
Rents.


 


Borrower
has not accepted, and does not expect to receive prepayment of, any Rents for more than two (2) months prior to the due dates of
such Rents (except for collection of security deposits and other customary prepaid fees collected under the Leases).


 




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Section 7.02        Covenants.


 


(a)          Leases.


 


Borrower
shall:


 


(1)         comply
with and observe Borrower's obligations under all Leases, including Borrower's obligations pertaining to the maintenance and disposition
of tenant security deposits;


 


(2)         surrender
possession of the Mortgaged Property, including all Leases and all security deposits and prepaid Rents, immediately upon appointment
of a receiver or Lender's entry upon and taking of possession and control of the Mortgaged Property, as applicable; and


 


(3)         promptly
provide Lender a copy of any non-Residential Lease at the time such Lease is executed (subject to Lender's consent rights for Material
Commercial Leases in Section 7.02(b)), and, upon Lender's request, promptly provide Lender a copy of any Residential Lease then
in effect.


 


(b)          Commercial
Leases.


 


(1)         With
respect to Material Commercial Leases, Borrower shall not:


 


(A)         enter
into any Material Commercial Lease except with the prior written consent of Lender and Lender's written approval of such Material
Commercial Lease, provided that Lender's consent shall not be unreasonably withheld, conditioned, or delayed for any Material Commercial
Lease, or for any amendments or modifications thereto, for ancillary retail within the Improvements not exceeding 10% of the Mortgaged
Property's effective gross income or total rentable square footage (whichever is lower), so long as such lease does not reduce
the number or size of residential units at the Mortgaged Property and such lease otherwise complies with all other requirements
of this Article 7; or


 


(B)         modify
the terms of, extend or terminate any Material Commercial Lease (including any Material Commercial Lease in existence on the Effective
Date) without the prior written consent of Lender.


 


(2)         With
respect to any non-Material Commercial Lease, Borrower shall not:


 


(A)         enter
into any non-Material Commercial Lease that materially alters the use and type of operation of the premises subject to the Lease
in effect as of the Effective Date, reduces the number or size of residential units at the Mortgaged Property or causes such non-Material
Commercial Lease to be deemed a Material Commercial Lease; or


 




    	29



    	 



    

 


(B)         modify
the terms of any non-Material Commercial Lease (including any non-Material Commercial Lease in existence on the Effective Date)
in any way that materially alters the use and type of operation of the premises subject to such non-Material Commercial Lease in
effect as of the Effective Date, reduces the number or size of residential units at the Mortgaged Property or causes such non-Material
Commercial Lease to be deemed a Material Commercial Lease.


 


(3)         With
respect to any Material Commercial Lease or non-Material Commercial Lease, Borrower shall cause the applicable tenant to provide
within ten (10) days of the request, a certificate of estoppel, or if not provided by tenant within such ten (10) day period, Borrower
shall provide such certificate of estoppel, certifying:


 


(A)         that
such Material Commercial Lease or non-Material Commercial Lease is unmodified and in full force and effect (or if there have been
modifications, that such Material Commercial Lease or non-Material Commercial Lease is in full force and effect as modified and
stating the modifications);


 


(B)         the
term of the Lease including any extensions thereto;


 


(C)         the
dates to which the Rent and any other charges hereunder have been paid by tenant;


 


(D)         the
amount of any security deposit delivered to Borrower as landlord;


 


(E)         to
the certificate of estoppel provider's knowledge (if provided by tenant, to the tenant's actual knowledge), whether or not Borrower
is in default (or whether any event or condition exists which, with the passage of time, would constitute an event of default)
under such Lease;


 


(F)         the
address to which notices to tenant should be sent; and


 


(G)         any
other information as may be reasonably required by Lender.


 


(c)          Payment
of Rents.


 


Borrower
shall:


 


(1)         pay
to Lender upon demand all Rents after the occurrence of an Event of Default and during the continuance thereof;


 


(2)         shall
cooperate with Lender's efforts in connection with the assignment of Rents set forth in the Security Instrument; and


 




    	30



    	 



    

 


(3)         not
accept Rent under any Lease (whether residential or non-residential) for more than two (2) months in advance (except for collection
of security deposits and other customary prepaid fees collected under the Leases).


 


(d)          Assignment
of Rents.


 


Borrower
shall not:


 


(1)         perform
any acts and shall not execute any instrument that would prevent Lender from exercising its rights under the assignment of Rents
granted in the Security Instrument or in any other Loan Document; or


 


(2)         interfere
with Lender's collection of such Rents.


 


(e)          Further
Assignments of Leases and Rents.


 


Borrower
shall execute and deliver any further assignments of Leases and Rents as Lender may require; provided, however, that Borrower shall
not be required to do anything that has the effect of (i) changing the essential economic terms of the Mortgage Loan set forth
in the commitment letter or (b) imposing on Borrower greater personal liability under the Loan Documents than set forth in the
commitment letter.


 


(f)          Options
to Purchase by Tenants.


 


No
Lease (whether a Residential Lease or a non-Residential Lease) shall contain an option to purchase, right of first refusal or right
of first offer, except as required by applicable law.


 


Section
7.03         Mortgage Loan Administration Regarding Leases and Rents.


 


(a)          Material
Commercial Lease Requirements.


 


Each
Material Commercial Lease, including any renewal or extension of any Material Commercial Lease in existence as of the Effective
Date, shall provide, directly or pursuant to a subordination, non-disturbance and attornment agreement approved by Lender, that:


 


(1)         the
tenant shall, upon written notice from Lender after the occurrence of an Event of Default and during the continuance thereof, pay
all Rents payable under such Lease to Lender;


 


(2)         such
Lease is subordinate to the lien of the Security Instrument;


 


(3)         the
tenant shall attorn to Lender and any purchaser at a Foreclosure Event (such attornment to be self-executing and effective upon
acquisition of title to the Mortgaged Property by any purchaser at a Foreclosure Event or by Lender in any manner);


 




    	31



    	 



    

 


(4)         the
tenant agrees to execute such further evidences of attornment as Lender or any purchaser at a Foreclosure Event may from time to
time request; and


 


(5)
such Lease shall not terminate as a result of a Foreclosure Event unless Lender or any other purchaser at such Foreclosure Event,
but subject to the terms of the subordination, non-disturbance and attornment agreement, affirmatively elects to terminate such
Lease.


 


(b)          Residential
Lease Requirements.


 


All
Residential Leases shall be:


 


(1)         on
forms approved by Lender; and


 


(2)         for
initial lease terms of not less than six (6) months and not more than twenty-four (24) months (however, if customary in the applicable
market, Residential Leases with terms of less than six (6) months may be permitted with Lender's prior written consent).


 


ARTICLE 8 - BOOKS AND
RECORDS; FINANCIAL REPORTING


 


Section 8.01         Representations
and Warranties.


 


The
representations and warranties made by Borrower to Lender in this Section 8.01 are made as of the Effective Date, and are true
and correct as of the Effective Date except as disclosed on the Exceptions to Representations and Warranties Schedule.


 


(a)          Financial
Information.


 


All
financial statements and data, including statements of cash flow and income and operating expenses, that have been delivered to
Lender in respect of the Mortgaged Property:


 


(1)         are
true, complete and correct in all material respects; and


 


(2)         accurately
represent the financial condition of the Mortgaged Property as of such date.


 


(b)          No
Change in Facts or Circumstances.


 


All
information in the Loan Application and in all financial statements, rent rolls, reports, certificates and other documents submitted
in connection with the Loan Application are complete and accurate in all material respects. There has been no material adverse
change in any fact or circumstance that would make any such information incomplete or inaccurate.


 




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Section 8.02         Covenants.


 


(a)          Obligation
to Maintain Accurate Books and Records.


 


Borrower
shall keep and maintain at all times at the Mortgaged Property or the property management agent's offices or Borrower's General
Business Address and, upon Lender's request, shall make available at the Land:


 


(1)         complete
and accurate books of account and records (including copies of supporting bills and invoices) adequate to reflect correctly the
operation of the Mortgaged Property; and


 


(2)         copies
of all written contracts, Leases and other instruments that affect Borrower or the Mortgaged Property.


 


(b)          Items
to Furnish to Lender.


 


Borrower
shall furnish to Lender the following, certified as true, complete and accurate by an individual having authority to bind Borrower
(or Guarantor, as applicable), in such form and with such detail as Lender reasonably requires:


 


(1)         within
forty-five (45) days after the end of each first, second and third calendar quarter, a statement of income and expenses for Borrower
on a year-to-date basis as of the end of each calendar quarter;


 


(2)         within
one hundred twenty (120) days after the end of each calendar year:


 


(A)         a
statement of income and expenses for Borrower and Guarantor for such calendar year;


 


(B)         a
statement of cash flows of Borrower and Guarantor for such calendar year;


 


(C)         when
requested by Lender, balance sheet(s) showing all assets and liabilities of Borrower and Guarantor as of the end of such calendar
year; and


 


(D)         a
written certification ratifying and affirming that:


 


(i)          Borrower
has taken no action in violation of Section 4.02(d) regarding its single asset status;


 


(ii)         Borrower
has received no notice of any building code violation, or if Borrower has received such notice, evidence of remediation;


 




    	33



    	 



    

 


(iii)        Borrower
has made no application for rezoning nor received any notice that the Mortgaged Property has been or is being rezoned; and


 


(iv)        Borrower
has taken no action and has no knowledge of any action that would violate the provisions of Section 1l.02(b)(l)(F) regarding liens
encumbering the Mortgaged Property;


 


(E)         an
accounting of all security deposits held pursuant to all Leases, including the name of the institution (if any) and the names and
identification numbers of the accounts (if any) in which such security deposits are held and the name of the person to contact
at such financial institution, along with any authority or release necessary for Lender to access information regarding such accounts;
and


 


(F)
a statement that identifies all owners of any interest in Borrower and the interest held by each, and if Borrower is a corporation,
the names of all officers and directors of Borrower, and if Borrower is a limited liability company, the names of all managers
who are not members.


 


(3)         within
forty-five (45) days after the end of each first, second and third calendar quarter and within one hundred twenty (120) days after
the end of each calendar year, and at any other time upon Lender's request, a rent schedule for the Mortgaged Property showing
the name of each tenant and for each tenant, the space occupied, the lease expiration date, the rent payable for the current month,
the date through which rent has been paid and any related information requested by Lender; and


 


(4)         upon
Lender's request (but, absent an Event of Default, no more frequently than once in any six (6) month period):


 


(A)         any
item described in Section 8.02(b)(l) or Section 8.02(b)(2) for Borrower, certified as true, complete and accurate by an individual
having authority to bind Borrower;


 


(B)         a
property management or leasing report for the Mortgaged Property, showing the number of rental applications received from tenants
or prospective tenants and deposits received from tenants or prospective tenants, and any other information requested by Lender;
and


 


(C)         a
statement of income and expenses for Borrower's operation of the Mortgaged Property on a year-to-date basis as of the end of each
month for such period as requested by Lender, which statement shall be delivered within thirty (30) days after the end of such
month requested by Lender.


 




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(c)          Delivery
of Books and Records.


 


If
an Event of Default has occurred and is continuing, Borrower shall deliver to Lender, upon written demand, all books and records
relating to the Mortgaged Property or its operation.


 


Section 8.03        Mortgage
Loan Administration Matters Regarding Books and Records and Financial Reporting.


 


(a)          Right
to Audit Books and Records.


 


In
the event (i) Borrower fails to provide in a timely manner the statements, schedules and reports required by Section 8.02 and,
thereafter, fails to provide such statements, schedules and reports within ten (10) days after receipt from Lender of written notice
of its intent to cause an audit to be made of Borrower's books and records in order to obtain such statements, schedules and reports
or (ii) statements, schedules and reports submitted to Lender by Borrower are not full, complete and accurate in all material respects
as determined by Lender, Lender may require that any or all of the statements, schedules and reports of Borrower or the Mortgaged
Property be audited, at Borrower's expense, by independent certified public accountants acceptable to Lender; provided that such
requirement shall be limited to not more than once per Borrower's fiscal year so long as no Event of Default has occurred (or any
event which, with the giving of notice or the passage of time, or both, would constitute an Event of Default has occurred and is
continuing). If Borrower fails, in a timely manner, to provide any such required audited materials, Lender shall have the right,
at Borrower's expense, to have such materials audited by independent certified public accountants selected by Lender. All related
costs and expenses of Lender shall become immediately due and payable within ten (10) Business Days after demand therefor.


 


(b)          Credit
Reports; Credit Score.


 


No
more often than once in any twelve (12) month period, Lender is authorized to obtain a credit report (if applicable) on Borrower
or any Guarantor or any Key Principal, the cost of which report shall be paid by Borrower, Guarantor, and Key Principal. Lender
is authorized to obtain a Credit Score (if applicable) for Borrower, any Guarantor or any Key Principal at any time' at Lender's
expense.


 


ARTICLE 9 - INSURANCE


 


Section 9.01         Representations
and Warranties.


 


The
representations and warranties made by Borrower to Lender in this Section 9.01 are made as of the Effective Date, and are true
and correct as of the Effective Date except as disclosed on the Exceptions to Representations and Warranties Schedule.


 




    	35



    	 



    

 


(a)          Compliance
with Insurance Requirements.


 


Borrower
is in compliance with Lender's insurance requirements (or has obtained a written waiver from Lender for any non-compliant coverage)
and has timely paid all premiums on all required insurance policies.


 


(b)          Property
Condition.


 


(1)         The
Mortgaged Property has not been damaged by fire, water, wind or other cause of loss; or


 


(2)         if
previously damaged, any previous damage to the Mortgaged Property has been repaired and the Mortgaged Property has been fully restored.


 


Section 9.02        Covenants.


 


(a)          Insurance
Requirements.


 


(1)         As
required by Lender and applicable law, and as may be modified from time to time, Borrower shall:


 


(A)         keep
the Improvements insured at all times against any hazards, which insurance shall include coverage against loss by fire and allied
perils, general boiler and machinery coverage, business income coverage and flood (if any of the Improvements are located in an
area identified by the Federal Emergency Management Agency (or any successor) as an area having special flood hazards and to the
extent flood insurance is available in that area), and may include sinkhole insurance, mine subsidence insurance, earthquake insurance,
terrorism insurance (to the extent the same can be obtained at commercially reasonable rates as determined by Lender) and, if the
Mortgaged Property does not conform to applicable building, zoning or land use laws, ordinance and law coverage;


 


(B)         maintain
at all times commercial general liability insurance, workmen's compensation insurance and such other liability, errors and omissions
and fidelity insurance coverage; and


 


(C)         maintain
workmen's compensation insurance, builder's risk and public liability insurance, and other insurance in connection with completing
the Repairs or Replacements, as applicable.


 


(b)          Delivery
of Policies, Renewals, Notices and Proceeds.


 


Borrower
shall:


 




    	36



    	 



    

 


(1)         cause
all insurance policies required by Lender which can be endorsed with standard non-contributing, non-reporting mortgagee clauses
making loss payable to Lender (or Lender's assigns) to be so endorsed;


 


(2)         promptly
deliver to Lender a copy of all renewal and other notices received by Borrower with respect to the policies and all receipts for
paid premiums;


 


(3)         deliver
evidence, in form and content acceptable to Lender, that each existing insurance policy has been renewed not less than thirty (30)
days (or ten (10) days in the event the provisions of Section 12.02(b) are in effect) prior to the applicable expiration date and
(if such evidence is other than an original or duplicate original of a renewal policy) deliver the original or duplicate original
of each renewal policy in form and content acceptable to Lender within ninety (90) days after the applicable expiration date of
the original insurance policy;


 


(4)         provide
immediate written notice to the insurance company and to Lender of any event of loss;


 


(5)         execute
such further evidence of assignment of any insurance proceeds under any insurance policy required in accordance with this Article
9; and


 


(6)         provide
immediate written notice to Lender of Borrower's receipt of any insurance proceeds under any insurance policy required by Section
9.02(a)(l )(A) above and, if requested by Lender, deliver to Lender all of such proceeds received by Borrower to be applied by
Lender in accordance with this Article 9.


 


Section 9.03         Mortgage
Loan Administration Matters Regarding Insurance


 


(a)          Lender's
Ongoing Insurance Requirements.


 


Borrower
acknowledges that Lender's insurance requirements may change from time to time. All insurance policies and renewals of insurance
policies required by this Loan Agreement shall be:


 


(1)         in
the form and with the terms required by Lender;


 


(2)         in
such amounts, with such maximum deductibles and for such periods required by Lender; and


 


(3)         issued
by insurance companies satisfactory to Lender.


 




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BORROWER
ACKNOWLEDGES THAT ANY FAILURE TO COMPLY WITH INSURANCE PROVISIONS SHALL PERMIT LENDER TO PURCHASE SUCH INSURANCE AT BORROWER'S
COST. SUCH INSURANCE MAY, BUT NEED NOT, PROTECT BORROWER'S INTERESTS. THE COVERAGE THAT LENDER PURCHASES MAY NOT PAY ANY CLAIM
THAT BORROWER MAKES OR ANY CLAIM THAT IS MADE AGAINST BORROWER IN CONNECTION WITH THE MORTGAGED PROPERTY. IF LENDER PURCHASES INSURANCE
FOR THE MORTGAGED PROPERTY, BORROWER WILL BE RESPONSIBLE FOR THE COSTS OF THAT INSURANCE, INCLUDING INTEREST AT THE DEFAULT RATE
AND ANY OTHER CHARGES LENDER MAY IMPOSE IN CONNECTION WITH THE PLACEMENT OF THE INSURANCE UNTIL THE EFFECTIVE DATE OF THE CANCELLATION
OR THE EXPIRATION OF THE INSURANCE. THE COSTS OF THE INSURANCE SHALL BE ADDED TO BORROWER'S TOTAL OUTSTANDING BALANCE OR OBLIGATION
AND SHALL CONSTITUTE ADDITIONAL INDEBTEDNESS. THE COSTS OF THE INSURANCE MAY BE MORE THAN THE COST OF INSURANCE BORROWER MAY BE
ABLE TO OBTAIN ON ITS OWN. BORROWER MAY LATER CANCEL ANY INSURANCE PURCHASED BY LENDER, BUT ONLY AFTER PROVIDING EVIDENCE THAT
BORROWER HAS OBTAINED INSURANCE AS REQUIRED BY THIS LOAN AGREEMENT AND THE OTHER LOAN DOCUMENTS.


 


(b)          Application
of Proceeds on Event of Loss.


 


(1)         Upon
an event of loss, Lender may, at Lender's option:


 


(A)         hold
such proceeds to be applied to reimburse Borrower for the cost of Restoration (in accordance with Lender's then-current policies
relating to the restoration of casualty damage on similar multifamily residential properties); or


 


(B)         apply
such proceeds to the payment of the Indebtedness, whether or not then due; provided, however, Lender shall not apply
insurance proceeds to the payment of the Indebtedness and shall permit Restoration pursuant to Section 9.03(b)(l) if all of the
following conditions are met:


 


(i)          no
Event of Default has occurred and is continuing (or any event which, with the giving of notice or the passage of time, or both,
would constitute an Event of Default has occurred and is continuing);


 


(ii)         Lender
determines that the combination of insurance proceeds and amounts provided by Borrower will be sufficient funds to complete the
Restoration;


 


(iii)        Lender
determines that the net operating income generated by the Mortgaged Property after completion of the Restoration will be sufficient
to support a debt service coverage ratio not less than the debt service coverage ratio immediately prior to the event of loss,
but in no event less than 1.0x (the debt service coverage ratio shall be calculated on a thirty (30) year amortizing basis in all
events and shall include all operating costs and other expenses, Imposition Deposits, deposits to Collateral Accounts and Mortgage
Loan repayment obligations);


 




    	38



    	 



    

 


(iv)        Lender
determines that the Restoration will be completed before the earlier of (x) one (1) year before the stated Maturity Date or
(y) one (1) year after the date of the loss or casualty; and


 


(v)         Borrower
provides Lender, upon request, evidence of the availability during and after the Restoration of the insurance required to be maintained
by Borrower pursuant to this Loan Agreement.


 


After the completion
of Restoration in accordance with the above requirements, as determined by Lender, the balance, if any, of such proceeds shall
be returned to Borrower.


 


(2)         Notwithstanding
the foregoing, if any loss is estimated to be in an amount equal to or less than $100,000, Lender shall not exercise its rights
and remedies as power-of-attorney herein and shall allow Borrower to make proof of loss, to adjust and compromise any claims under
policies of property damage insurance, to appear in and prosecute any action arising from such policies of property damage insurance,
and to collect and receive the proceeds of property damage insurance; provided, that each of the following conditions shall
be satisfied:


 


(A)         Borrower
shall immediately notify Lender of the casualty giving rise to the claim;


 


(B)         no
Event of Default has occurred (or any event which, with the giving of notice or the passage of time, or both, would constitute
an Event of Default has occurred and is continuing);


 


(C)         the
Restoration will be completed before the earlier of (i) one (1) year before the stated Maturity Date or (ii) one (1) year after
the date of the loss or casualty;


 


(D)         there
will be sufficient funds to complete the Restoration;


 


(E)         all
proceeds of property damage insurance shall be issued in the form of joint checks to Borrower and Lender;


 


(F)         all
proceeds of property damage insurance shall be applied to the Restoration;


 


(G)         Borrower
shall deliver to Lender evidence satisfactory to Lender of completion of the Restoration and obtainment of all lien releases;


 


(H)         Borrower
shall have complied to Lender's satisfaction with the foregoing requirements on any prior claims subject to this provision, if
any; and


 




    	39



    	 



    

 


(I)         Lender
shall have the right to inspect the Mortgaged Property (subject to the rights of tenants under the Leases and applicable law).


 


(3)         If
Lender elects to apply insurance proceeds to the Indebtedness in accordance with the terms of this Loan Agreement, Borrower shall
not be obligated to restore or repair the Mortgaged Property. Rather, Borrower shall restrict access to the damaged portion of
the Mortgaged Property and, at its expense and regardless of whether such costs are covered by insurance, clean up any debris resulting
from the casualty event, and, if required or otherwise permitted by Lender, demolish or raze any remaining part of the damaged
Mortgaged Property to the extent necessary to keep and maintain the Mortgaged Property in a safe, habitable and marketable condition.
Nothing in this Section 9.03(b) shall affect any of Lender's remedial rights against Borrower in connection with a breach by Borrower
of any of its obligations under this Loan Agreement or under any Loan Document, including any failure to timely pay Monthly Debt
Service Payments or maintain the insurance coverage(s) required by this Loan Agreement.


 


(c)          Payment
Obligations Unaffected.


 


The
application of any insurance proceeds to the Indebtedness shall not extend or postpone the Maturity Date or the due date or the
full payment of any Monthly Debt Service Payment, Monthly Replacement Reserve Deposit, any other installments referred to in this
Loan Agreement or in any other Loan Document. Notwithstanding the foregoing, if Lender applies insurance proceeds to the Indebtedness
in connection with a casualty of less than the entire Mortgaged Property, and after such application of proceeds the debt service
coverage ratio (as determined by Lender) is less than 1.25x based on the then-applicable Monthly Debt Service Payment and the anticipated
on-going net operating income of the Mortgaged Property after such casualty event, then Lender may, at its discretion, permit an
adjustment to the Monthly Debt Service Payments that become due and owing thereafter, based on Lender's then-current underwriting
requirements. In no event shall the preceding sentence obligate Lender to make any adjustment to the Monthly Debt Service Payments.


 


(d)          Foreclosure
Sale.


 


If
the Mortgaged Property is transferred pursuant to a Foreclosure Event or Lender otherwise acquires title to the Mortgaged Property,
Borrower acknowledges that Lender shall automatically succeed to all rights of Borrower in and to any insurance policies and unearned
insurance premiums applicable to the Mortgaged Property and in and to the proceeds resulting from any damage to the Mortgaged Property
prior to such Foreclosure Event or such acquisition.


 


(e)          Appointment
of Lender as Attorney-In-Fact.


 


Borrower
hereby authorizes and appoints Lender as attorney-in-fact pursuant to Section 14.03(c).


 




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ARTICLE 10 - CONDEMNATION


 


Section 10.01       Representations
and Warranties.


 


The
representations and warranties made by Borrower to Lender in this Section 10.01 are made as of the Effective Date, and are true
and correct as of the Effective Date except as disclosed on the Exceptions to Representations and Warranties Schedule.


 


(a)          Prior
Condemnation Action.


 


No
part of the Mortgaged Property has been taken in connection with a Condemnation Action.


 


(b)          Pending
Condemnation Actions.


 


No
Condemnation Action is pending nor, to Borrower's knowledge, is threatened for the partial or total condemnation or taking of the
Mortgaged Property.


 


Section 10.02      Covenants.


 


(a)          Notice
of Condemnation.


 


Borrower
shall:


 


(1)         promptly
notify Lender of any Condemnation Action;


 


(2)         appear
in and prosecute or defend, at its own cost and expense, any action or proceeding relating to any Condemnation Action, including
any defense of Lender's interest in the Mortgaged Property tendered to Borrower by Lender, unless otherwise directed by Lender
in writing; and


 


(3)         execute
such further evidence of assignment of any condemnation award in connection with a Condemnation Action as Lender may require.


 


(b)          Condemnation
Proceeds.


 


Borrower
shall pay to Lender all awards or proceeds of a Condemnation Action promptly upon receipt.


 


Section 10. 03     Mortgage
Loan Administration Matters Regarding Condemnation.


 


(a)          Application
of Condemnation Awards.


 


Lender
may apply any awards or proceeds of a Condemnation Action, after the deduction of Lender's expenses incurred in the collection
of such amounts, to:


 


(1)         the
restoration or repair of the Mortgaged Property; or


 




    	41



    	 



    

 


(2)         Borrower.
the payment of the Indebtedness, with the balance, if any, paid to


 


(b)          Payment
Obligations Unaffected.


 


The
application of any awards or proceeds of a Condemnation Action to the Indebtedness shall not extend or postpone the due date or
the full payment of any Monthly Debt Service Payment, Monthly Replacement Reserve Deposit, any other installments referred to in
this Loan Agreement or in any other Loan Document, or the Maturity Date.


 


(c)          Appointment
of Lender as Attorney-In-Fact.


 


Borrower
hereby authorizes and appoints Lender as attorney-in-fact pursuant to Section 14.03(c).


 


(d)          Preservation
of Mortgaged Property.


 


If
a Condemnation Action results in or from damage to the Mortgaged Property and Lender elects to apply the proceeds or awards from
such Condemnation Action to the Indebtedness in accordance with the terms of this Loan Agreement, Borrower shall not be obligated
to restore or repair the Mortgaged Property. Rather, Borrower shall restrict access to any portion of the Mortgaged Property which
has been damaged or destroyed in connection with such Condemnation Action and, at Borrower's expense and regardless of whether
such costs are covered by insurance, clean up any debris resulting in or from the Condemnation Action, and, if required by any
Governmental Authority or otherwise permitted by Lender, demolish or raze any remaining part of the damaged Mortgaged Property
to the extent necessary to keep and maintain the Mortgaged Property in a safe, habitable and marketable condition. Nothing in this
Section 10.03(d) shall affect any of Lender's remedial rights against Borrower in connection with a breach by Borrower of any of
its obligations under this Loan Agreement or under any Loan Document, including any failure to timely pay Monthly Debt Service
Payments or maintain the insurance coverage(s) required by this Loan Agreement.


 


ARTICLE 11. LIENS, TRANSFERS
AND ASSUMPTIONS


 


Section 11. 01     Representations
and Warranties.


 


The
representations and warranties made by Borrower to Lender in this Section 11.01 are made as of the Effective Date, and are true
and correct as of the Effective Date except as disclosed on the Exceptions to Representations and Warranties Schedule.


 


(a)          No
Labor or Materialmen's Claims.


 


All
parties furnishing labor and materials have been paid in full (or will be paid when due in the ordinary course of business) and
there are no mechanics' or materialmen's liens or claims outstanding for work, labor or materials affecting the Mortgaged Property,
whether prior to, equal with or subordinate to the lien of the Security Instrument.


 




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(b)          No
Other Interests.


 


No
Person:


 


(1)         other
than Borrower has any possessory ownership or interest in the Mortgaged Property or right to occupy the same except under and pursuant
to the provisions of existing Leases, the material terms of all such Leases having been previously disclosed to Lender;


 


(2)         has
an option, right of first refusal, or right of first offer (except as required by applicable law) to purchase the Mortgaged Property,
or any interest in the Mortgaged Property, except as may be disclosed to and approved in writing by Lender.


 


Section 11.02      Covenants.


 


(a)          Liens;
Encumbrances.


 


Other
than Permitted Encumbrances and the lien of the Security Instrument and this Loan Agreement, Borrower shall not permit the grant,
creation or existence of any Lien, whether voluntary, involuntary or by operation of law, on all or any portion of the Mortgaged
Property (including any voluntary, elective or non-compulsory tax lien or assessment pursuant to a voluntary, elective or non-compulsory
special tax district or similar regime).


 


(b)          Transfers.


 


(1)         Mortgaged
Property.


 


Borrower
shall not Transfer, or cause or permit a Transfer of, all or any part of the Mortgaged Property (including any interest in the
Mortgaged Property) other than:


 


(A)         a
Transfer to which Lender has consented in writing;


 


(B)         the
grant of a Residential Lease for a term of two (2) years or less and not containing an option to purchase or right of first refusal
(except as required by applicable law);


 


(C)         the
grant of a non-Material Commercial Lease provided the use and type of operation of such space is unchanged from the use and type
of operation in effect as of the Effective Date and the number and size of residential units at the Mortgaged Property are not
reduced;


 


(D)         a
Transfer of obsolete or worn out Personalty or Fixtures that are contemporaneously replaced by items of equal or better function
and quality which are free of Liens (other than those created by the Loan Documents);


 


	Multifamily Loan and Security Agreement	Form 6001.NR	 
	(Non-Recourse)	(Modified -Bell]	 


 




    	43



    	 



    

 


(E)         the
grant of an easement, servitude or restrictive covenant to which Lender has consented, and Borrower has paid to Lender, upon demand,
all costs and expenses incurred by Lender in connection with reviewing Borrower's request; provided that Borrower shall be permitted
to grant a utility easement serving the Mortgaged Property to a publicly operated utility where (i) such easement is between Borrower
and the utility, (ii) the granting of such easement does not materially affect Borrower's access to the Mortgaged Property or the
use of any easements or amenities which benefit the Mortgaged Property, (iii) the granting of such easement does not result in
the loss of the use of any units, and (iv) the consideration paid to Borrower (which consideration may be retained by Borrower
as provided in the following sentence) is less than $50,000, provided that Borrower shall provide Lender with copies of the utility
easement and evidence satisfactory to Lender that subsections (i) through (iv) have been met. So long as no Event of Default exists,
Borrower may retain any compensation received from the easement holder for its own account (provided such consideration is less
than $50,000) so long as Borrower promptly repairs any damage covered by such easement; or


 


(F)         notwithstanding
Section 11.02(a), the creation of any tax lien, municipal lien, utility lien, mechanics' lien, materialmen's lien, or judgment
lien against the Mortgaged Property if bonded off, released of record or otherwise remedied to Lender's satisfaction within sixty
(60) days after the earlier of the date Borrower has actual notice or constructive notice of the existence of such lien.


 


(2)         Interests
in Borrower and/or Key Principal and/or Guarantor.


 


Other
than a Transfer to which Lender has consented in writing, Borrower shall not Transfer, or cause or permit to be Transferred:


 


(A)         a
direct or indirect Controlling Interest in Borrower, Key Principal or Guarantor (if applicable);


 


(B)         more
than forty-nine percent (49%) of any Key Principal's or Guarantor's direct or indirect ownership interests in Borrower that existed
on the Effective Date (individually or on an aggregate basis);


 


(C)         the
economic benefits or rights to cash flows attributable to any ownership interests in Borrower, Key Principal or Guarantor (if applicable)
separate from the Transfer of the underlying ownership interests if the Transfer of the underlying ownership interest is prohibited
by this Loan Agreement; or


 


(D)         a
Transfer to a new key principal or new guarantor (if such new key principal or guarantor is an entity) which entity has an organizational
existence termination date that ends before the Maturity Date.


 




    	44



    	 



    

 


(3)         Entity
Conversion.


 


(A)         Borrower
shall not change its name, change its jurisdiction or organization, or cause or permit a conversion of Borrower from one type of
entity into another type of entity if such conversion results in either:


 


(i)          a
Transfer of a Controlling Interest; or


 


(ii)         a
change in any assets, liabilities, legal rights or obligations of Borrower (or of Key Principal, Guarantor or any general partner,
manager (if non-member managed) or managing member of Borrower, as applicable), by operation of law or otherwise.


 


(B)         Notwithstanding
the foregoing, Borrower may convert from one type of legal entity into another type of legal entity for tax or other structuring
purposes, provided:


 


(i)          the
provisions of Section 11.02(b)(2) are satisfied;


 


(ii)         Borrower
provides Lender with at least ten (10) days prior written notice of such conversion;


 


(iii)        Borrower
provides Lender any certificates evidencing such conversion filed with the appropriate Secretary of State within ten (10) days
after filing such certificates;


 


(iv)        Borrower
provides Lender new certificates of good standing for such entity at least five (5) days prior to such conversion;


 


(v)         Lender
reserves the right to file UCC-3 amendments where necessary reflecting the conversion;


 


(vi)        if
required by Lender, Borrower executes an amendment to this Loan Agreement documenting the conversion; and


 


(vii)       Borrower
shall provide Lender with confirmation from the title company (via electronic mail or letter) that nothing is needed in the land
records (of the appropriate Property Jurisdiction) at such time to evidence such conversion, and no endorsements to the Title Policy
are necessary to maintain Lender's coverage; or if any endorsements are necessary, Borrower shall provide such endorsements at
Borrower's cost.


 




    	45



    	 



    

 


Section 11.03       Mortgage
Loan Administration Matters Regarding Liens, Transfers and Assumptions 


 


(a)          Assumption
of Mortgage Loan.


 


Lender
shall consent to a Transfer of the Mortgaged Property to and an assumption of the Mortgage Loan by a new borrower if each of the
following conditions is satisfied prior to the Transfer:


 


(1)         Borrower
has submitted to Lender all information required by Lender to make the determination required by this Section 11.03(a);


 


(2)         no
Event of Default then exists;


 


(3)         Lender
determines that:


 


(A)         the
proposed new borrower, new key principal and any other new guarantor fully satisfy all of Lender's then-applicable borrower, key
principal or guarantor eligibility, credit, management and other loan underwriting standards (including any standards with respect
to previous relationships between Lender and the proposed new borrower, new key principal and new guarantor and the organization
of the new borrower, new key principal and new guarantor (if applicable));


 


(B)         none
of the proposed new borrower, new key principal and any new guarantor, or any owners of the proposed new borrower, new key principal
and any new guarantor, are a Prohibited Person; and


 


(C)         none
of the proposed new borrower, new key principal and any new guarantor (if any of such are entities) shall have an organizational
existence termination date that ends before the Maturity Date;


 


(4)         Lender
determines that the Mortgaged Property satisfies all of Lender's then-applicable loan underwriting standards, including physical
condition, occupancy and net operating income;


 


(5)         the
proposed new borrower has executed an assumption agreement acceptable to Lender that, among other things, requires the proposed
new borrower to assume and perform all obligations of Borrower (or any other transferor), and that may require that the new borrower
comply with any provisions of any Loan Document which previously may have been waived by Lender for Borrower, subject to the terms
of Section 11.03(g);


 


(6)         if
a guaranty was executed in connection with the Mortgage Loan, one or more individuals or entities acceptable to Lender as new guarantors
have executed and delivered to Lender:


 




    	46



    	 



    

 


(A)         an
assumption agreement acceptable to Lender that requires the new guarantor to assume and perform all obligations of Guarantor wider
any Guaranty given in connection with the Mortgage Loan; or


 


(B)         a
substitute Non-Recourse Guaranty and other substitute guaranty in a form acceptable to Lender;


 


(7)         Lender
has reviewed and approved the Transfer documents; and


 


(8)         Lender
has received the fees described in Section l 1.03(g).


 


(b)          Transfers
to Key Principal-Owned Affiliates or Guarantor-Owned Affiliates.


 


(1)         Transfers
of direct or indirect ownership interests in Borrower that are not otherwise permitted by this Loan Agreement but in which Key
Principal or Guarantor, or an entity in which Key Principal or Guarantor, as applicable, owns a Controlling Interest, is the transferee
shall be consented to by Lender if such Transfer satisfies the applicable requirements of Section l 1.03(a), other than Section
11.03(a)(5).


 


(2)         Transfers
of direct or indirect interests in Borrower held by a Key Principal or Guarantor to other Key Principals or Guarantors, as applicable,
shall be consented to by Lender if such Transfer satisfies the following conditions:


 


(A)         the
Transfer does not cause a change in the management and control of Borrower; and


 


(B)         the
transferor Key Principal or Guarantor maintains the same right and ability to manage and control Borrower as existed prior to the
Transfer.


 


If the conditions set forth
in this Section 11.03(b) are satisfied, the Transfer Fee shall be waived provided Borrower shall pay the Review Fee and out-of-pocket
costs set forth in Section 1l.03(g).


 


(c)          Estate
Planning.


 


Notwithstanding
the provisions of Section 11.02(b)(2), so long as (1) the Transfer does not cause a change in the management and control of Borrower
and (2) the transferor Key Principal or Guarantor, as applicable, maintains the same right and ability to manage and control Borrower
as existed prior to the Transfer, Lender shall consent to Transfers of direct or indirect ownership interests in Borrower held
by a Key Principal or Guarantor to, and Transfers of direct or indirect ownership interests, in an entity Key Principal or entity
Guarantor to:


 


(A)         Immediate
Family Members of such Key Principal or Guarantor;


 




    	47



    	 



    

 


(B)
United States domiciled trusts established for the benefit of the transferor Key Principal or transferor Guarantor, or Immediate
Family Members of the transferor Key Principal or the transferor Guarantor; or


 


(C)
partnerships or limited liability companies of which the partners or members, respectively, are all Immediate Family Members of
such Key Principal or Guarantor.


 


If the conditions set forth
in this Section 1l.03(c) are satisfied, the Transfer Fee shall be waived provided Borrower shall pay the Review Fee and out-of-pocket
costs set forth in Section 1l.03(g).


 


(d)          Termination
or Revocation of Trust.


 


If
any of Borrower, Guarantor or Key Principal is a trust, or if a Controlling Interest would be Transferred due to the termination
or revocation of a trust, the termination or revocation of such trust is an unpermitted Transfer; provided that the termination
or revocation of the trust due to the death of an individual trustor shall not be considered an unpermitted Transfer so long as:


 


(1)         Lender
is notified within thirty (30) days of the death; and


 


(2)         such
Borrower, Guarantor, Key Principal or other Person, as applicable, is replaced with an individual or entity acceptable to Lender,
in accordance with the provisions of Section l l.03(a) within ninety (90) days of the date of the death causing the termination
or revocation.


 


If the conditions set forth
in this Section 11.03(d) are satisfied, the Transfer Fee shall be waived; provided Borrower shall pay the Review Fee and out-of-pocket
costs set forth in Section 11.03(g).


 


(e)          Death
of Key Principal or Guarantor.


 


(1)         If
Key Principal or Guarantor is a natural person, or if a Controlling Interest would be Transferred due to the termination or revocation
of a trust, Borrower must notify Lender in writing within ninety (90) days in the event of such death. Unless waived in writing
by Lender, the deceased shall be replaced by an individual or entity within one hundred eighty (180) days, subject to Borrower's
satisfaction of the following conditions:


 


(A)         Borrower
has submitted to Lender all information required by Lender to make the determination required by this Section 11.03(e);


 


(B)         Lender
determines that:


 




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(i)          the
proposed new key principal and any other new guarantor (or Person controlling such new key principal or new guarantor) fully satisfies
all of Lender's then-applicable key principal or guarantor eligibility, credit, management and other loan underwriting standards
(including any standards with respect to previous relationships between Lender and the proposed new key principal and new guarantor
(or Person controlling such new key principal or new guarantor) and the organization of the new key principal and new guarantor
(if applicable));


 


(ii)         none
of the proposed new key principal or any new guarantor, or any owners of the proposed new key principal or any new guarantor, is
a Prohibited Person; and


 


(iii)        none
of the proposed new key principal or any new guarantor (if any of such are entities) shall have an organizational existence termination
date that ends before the Maturity Date;


 


(C)         if
applicable, one or more individuals or entities acceptable to Lender as new guarantors have executed and delivered to Lender:


 


(i)          an
assumption agreement acceptable to Lender that requires the new guarantor to assume and perform all obligations of Guarantor under
any Guaranty given in connection with the Mortgage Loan; or


 


(ii)         a
substitute Non-Recourse Guaranty and other substitute guaranty in a form acceptable to Lender.


 


(2)         In
the event a replacement Key Principal, Guarantor or other Person is required by Lender due to the death described in this Section
11.03(e), and such replacement has not occurred within such period, the period for replacement may be extended by Lender to a date
not more than one (1) year from the date of Key Principal's or Guarantor's death; however, Lender may require as a condition to
any such extension that:


 


(A)         the
then-current property manager be replaced with a property manager reasonably acceptable to Lender (or if a property manager has
not been previously engaged, a property manager reasonably acceptable to Lender be engaged); or


 


(B)         a
lockbox or cash management arrangement (with the property manager) reasonably acceptable to Lender during such extended replacement
period be instituted.


 


If the conditions set forth
in this Section 11.03(e) are satisfied, the Transfer Fee shall be waived, provided Borrower shall pay the Review Fee and out-of-pocket
costs set forth in Section 11.03(g).


 




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(f)          Bankruptcy
of Guarantor.


 


(1)         Upon
the occurrence of any Guarantor Bankruptcy Event, unless waived in writing by Lender, the applicable Guarantor shall be replaced
by an individual or entity within ninety (90) days of such Guarantor Bankruptcy Event, subject to Borrower's satisfaction of the
following conditions:


 


(A)         Borrower
has submitted to Lender all information required by Lender to make the determination required by this Section 11.03(f);


 


(B)         Lender
determines that


 


(i)          the
proposed new guarantor fully satisfies all of Lender's then-applicable guarantor eligibility, credit, management and other loan
underwriting standards (including any standards with respect to previous relationships between Lender and the proposed new guarantor
and the organization of the new guarantor (if applicable));


 


(ii)         no
new guarantor is a Prohibited Person; and


 


(iii)        no
new guarantor (if any of such are entities) shall have an organizational existence termination date that ends before the Maturity
Date;


 


(C)         one
or more individuals or entities acceptable to Lender as new guarantors have executed and delivered to Lender:


 


(i)          an
assumption agreement acceptable to Lender that requires the new guarantor to assume and perform all obligations of Guarantor under
any Guaranty given in connection with the Mortgage Loan; or


 


(ii)         a
substitute Non-Recourse Guaranty and other substitute guaranty in a form acceptable to Lender.


 


(2)         In
the event a replacement Guarantor is required by Lender due to the Guarantor Bankruptcy Event described in this Section 11.03(f),
and such replacement has not occurred within such period, the period for replacement may be extended by Lender in its discretion;
however, Lender may require as a condition to any such extension that:


 


(A)         the
then-current property manager be replaced with a property manager reasonably acceptable to Lender (or if a property manager has
not been previously engaged, a property manager reasonably acceptable to Lender be engaged); or


 




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(B)         a
lockbox or cash management arrangement (with the property manager) reasonably acceptable to Lender during such extended replacement
period be instituted.


 


If the conditions set forth
in this Section 11.03(f) are satisfied, the Transfer Fee shall be waived, provided Borrower shall pay the Review Fee and out-of-pocket
costs set forth in Section 1l.03(g).


 


(g)          Further
Conditions to Transfers and Assumption.


 


(1)         In
connection with any Transfer of the Mortgaged Property, or an ownership interest in Borrower, Key Principal or Guarantor for which
Lender's approval is required under this Loan Agreement, Lender may, as a condition to any such approval, require:


 


(A)         additional
collateral, guaranties or other credit support to mitigate any risks concerning the proposed transferee or the performance or condition
of the Mortgaged Property;


 


(B)         amendment
of the Loan Documents to delete or modify any specially negotiated terms or provisions previously granted for the exclusive benefit
of original Borrower, Key Principal or Guarantor and to restore the original provisions of the standard Fannie Mae form multifamily
loan documents, to the extent such provisions were previously modified; or


 


(C)         a
modification to the amounts required to be deposited into the Reserve/Escrow Account pursuant to the terms of Section l 3.02(a)(3)(B).


 


(2)         In
connection with any request by Borrower for consent to a Transfer, Borrower shall pay to Lender upon demand:


 


(A)         the
Transfer Fee (to the extent charged by Lender);


 


(B)         the
Review Fee (regardless of whether Lender approves or denies such request);


 


(C)         all
of Lender's out-of-pocket costs (including reasonable attorneys' fees) incurred in reviewing the Transfer request, to the extent
such costs exceed the Review Fee; and


 


(3)         Borrower
shall provide Lender written notice of all Transfers whether or not such Transfers are permitted under this Loan Agreement or approved
by Lender no later than ten (10) days prior to the date of the Transfer, provided that Borrower shall not be required to provide
notice of Transfers of Residential Leases, of the replacement of Fixtures or Personalty performed pursuant to the terms of the
Loan Documents or Transfers that are not otherwise expressly subject to advance written notice
from Borrower to Lender under this Article 11.


 




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(h)          Transfers.


 


Notwithstanding
anything in Section 11.02(b)
of the Loan Agreement to the contrary
and in addition to,
and without limiting, any Transfer that would otherwise be permitted under
Section 11.02(b) of the
Loan Agreement, the occurrence of the following shall not
constitute an Event of Default under the Loan Agreement
and shall be permitted without payment
of the Transfer Fee:


 


(1)         Pursuant
to the terms of Borrower's Limited Liability Company I Joint
Venture Agreement dated as of March 29, 2012, a Transfer ("Buy Sell Transfer") of the interests in Borrower between (i)
BR Waterford JV Member LLC ("Bluerock Member") and (ii) Bell HNW Nashville Portfolio, LLC and/or Bell Partners Inc. (together,
the "Bell Member) (by purchase of the ownership interest and replacement of a manager of Borrower), provided that:


 


(A)         Borrower
has submitted to Lender all information required by Lender to make the determination required by this Section;


 


(B)         No
Event of Default has occurred, and no event which, with the giving of notice or the passage of time, or both, would constitute
an Event of Default has occurred and is continuing; provided, however, if the Buy Sell Transfer would cure the Event of Default,
the Buy Sell Transfer must occur within 60 days after all conditions in this Section have been met to Lender's satisfaction;


 


(C)         In
the event that Bluerock Member is the transferee, (1) Bluerock Special Opportunity + Income Fund, LLC and Bluerock Special Opportunity
+ Income Fund II, LLC (together, the "Bluerock Guarantors")
and Bluerock Real Estate, LLC (the "Bluerock Key Principal") shall each reaffirm their respective status as a Key Principal
or Guarantor, as applicable, and Lender will release Bell Partners, Inc. and Bell HNW Nashville Portfolio, LLC (together, the "Bell
Guarantors") from all of their obligations under the Guaranty, provided, however, that Bell Guarantors are not released from
any liability pursuant to the provisions of the Guaranty relating to the Environmental Indemnity Agreement for any liability that
relates to the period prior to the date of the Buy Sell Transfer, regardless of when such environmental hazard is discovered, (2)
Lender determines that the Bluerock Guarantors and the Bluerock Key Principal satisfy all of Lender's then-applicable key principal
or guarantor eligibility, credit management and other loan underwriting standards and (3) Lender determines that the Mortgaged
Property satisfies all of the Lender's then applicable loan underwriting standards, including physical condition, occupancy and
net operating income;


 




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(D)         In
the event that Bell Member is the transferee, Bell Guarantors and Steven D. Bell (the "Bell Key Principal") shall each
reaffirm their respective status as a Key Principal or Guarantor, as applicable, and Lender will release Bluerock Guarantors from
all of their obligations under the Guaranty, provided, however, that Bluerock Guarantors are not released from any liability pursuant
to the provisions of the Guaranty relating to the Environmental Indemnity Agreement for any liability that relates to the period
prior to the date of the Buy Sell Transfer, regardless of when such environmental hazard is discovered;


 


(E)         No
transferee is a Prohibited Person;


 


(F)         Lender
has reviewed and approved the Buy Sell Transfer documents and received organizational charts reflecting the structure of Borrower
prior to and after the Buy Sell Transfer and copies of the then-current organizational documents of Borrower, including any amendments;


 


(G)         Borrower
provides Lender with at least 10 days prior written notice of the proposed Buy Sell Transfer and pays the Review Fee in conjunction
with the delivery of such prior written notice;


 


(H)         Borrower
pays or reimburses Lender, upon demand, for all of Lender's out-of-pocket costs (including reasonable attorneys' fees) incurred
in reviewing the Buy Sell Transfer request, to the extent such costs exceed the Review Fee; and


 


(I)         Lender
receives confirmation acceptable to Lender that Section 4.02(d) continues to be satisfied;


 


(2)         a
Transfer of any direct or indirect interest in Borrower held by an entity owned or controlled by any Guarantor or Key Principal
to one or more of such Guarantor's or Key Principal's Affiliates ("Affiliate Transfer") provided that:


 


(A)         Borrower
has submitted to Lender all information required by Lender to make the determination required by this Section;


 


(B)         No
Event of Default has occurred, and no event which, with the giving of notice or the passage of time, or both, would constitute
an Event of Default has occurred and is continuing;


 


(C)         Lender
determines, in Lender's Discretion, that the Affiliate meets Lender's eligibility, credit, management and other standards;


 


(D)         Following
the Affiliate Transfer, control and management of the day-to-day operations of Borrower continue to be held by Bluerock Real Estate,
LLC and/or Bell Partners Inc;


 




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(E)         Borrower
delivers to Lender for each transferee with an interest of 25% or more a certification that (a) he/she has not been convicted of
fraud or a crime involving moral turpitude (or if an entity, then no principal of such entity has been convicted of fraud or a
crime involving moral turpitude), and (b) he/she/it has not been involved in a bankruptcy or reorganization within the ten years
preceding the Notice to Lender;


 


(F)         Each
transferee with an interest of 25% or more meets all of the requirements for a Principal set forth in this Loan Agreement;


 


(G)         No
transferee is a Prohibited Person;


 


(H)         Lender
has reviewed and approved the Affiliate Transfer documents and received organizational charts reflecting the structure of Borrower
prior to and after the Affiliate Transfer and copies of the then-current organizational documents of Borrower, including any amendments;


 


(I)
Borrower provides Lender with at least 10 days prior written notice of the proposed Affiliate Transfer and pays the Review
Fee in conjunction with the delivery of such prior written notice;


 


(J)         Borrower
pays or reimburses Lender, upon demand, for all of Lender's out-of-pocket costs (including reasonable attorneys' fees) incurred
in reviewing the Affiliate Transfer request, to the extent such costs exceed the Review Fee; and


 


(K)         Lender
receives confirmation acceptable to Lender that Section 4.02(d) continues to be satisfied;


 


As used in this
Section 11.03(h)(2) only "Affiliate" means, as to each Guarantor or Key Principal respectively:


 


(A)         any
entity that directly or indirectly owns, controls or holds with power to vote, twenty percent (20%) or more of the outstanding
voting securities of the Guarantor or Key Principal;


 


(B)         any
entity in which the Guarantor or Key Principal directly or indirectly owns, controls or holds with the power to
vote, twenty percent (20%) or more of the outstanding voting securities of the entity; or


 


(C)         any
entity controlled by or under common control with, or which controls the Guarantor or Key Principal (the term "control"
for these purposes means the ability, whether by the ownership of shares or other equity interests, by contract or otherwise, to
elect a majority of the directors of a corporation, to make management decisions on behalf of, or independently to select the managing
partner of, a partnership, or otherwise to have the power independently to remove and then
select a majority of those individuals exercising managerial authority over an entity, and control shall be conclusively presumed
in the case of the ownership of fifty percent (50%) or more of the equity interests).


 




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ARTICLE 12 - IMPOSITIONS


 


Section 12.01      Representations
and Warranties.


 


The
representations and warranties made by Borrower to Lender in this Section 12.01 are made as of the Effective Date, and are true
and correct as of the Effective Date except as disclosed on the Exceptions to Representations and Warranties Schedule.


 


(a)          Payment
of Taxes, Assessments and Other Charges.


 


Borrower
has:


 


(1)         paid
(or with the approval of Lender, established an escrow fund sufficient to pay when due and payable) all amounts and charges relating
to the Mortgaged Property that have become due and payable, including Impositions, leasehold payments and ground rents;


 


(2)         paid
all Taxes for the Mortgaged Property that have become due pursuant to any notice of assessment received by Borrower and any and
all taxes that have become due against Borrower;


 


(3)         no
knowledge of any basis for any additional assessments;


 


(4)         no
knowledge of any presently pending special assessments against all or any part of the Mortgaged Property, or any presently pending
special assessments against Borrower; and


 


(5)         not
received any written notice of any contemplated special assessment against the Mortgaged Property, or any contemplated special
assessment against Borrower.


 


Section 12.02      Covenants.


 


(a)          Imposition
Deposits, Taxes, and Other Charges.


 


Borrower
shall:


 


(1)         deposit
the Imposition Deposits with Lender on each Payment Date (or on another day designated in writing by Lender) in amount sufficient,
in Lender's discretion, to enable Lender to pay each Imposition before the last date upon which such payment may be made without
any penalty or interest charge being added, plus an amount equal to no more than one-sixth
(1/6) (or the amount permitted by applicable law) of the Impositions for the trailing twelve (12) months (calculated based on the
aggregate annual Imposition costs divided by twelve (12) and multiplied by two (2));


 




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(2)         deposit
with Lender, within ten (10) days after notice from Lender (subject to applicable law), such additional amounts estimated by Lender
to be reasonably necessary to cure any deficiency in the amount of the Imposition Deposits held for payment of a specific Imposition;


 


(3)         unless
otherwise paid by Lender in accordance with Section 12.03(c), pay, or cause to be paid, all Impositions, leasehold payments, ground
rents and Borrower taxes when due and before the addition of any interest, fine, penalty or cost for nonpayment;


 


(4)         promptly
deliver to Lender a copy of all notices of, and invoices for, Impositions, and, if Borrower pays any Imposition directly, Borrower
shall promptly furnish to Lender receipts evidencing such payments; and


 


(5)         promptly
deliver to Lender a copy of all notices of any special assessments and contemplated special assessments against the Mortgaged Property
or Borrower.


 


Section 12.03      Mortgage
Loan Administration Matters Regarding Impositions.


 


(a)          Maintenance of Records by Lender.


 


Lender
shall maintain records of the monthly and aggregate Imposition Deposits held by Lender for the purpose of paying Taxes, insurance
premiums and each other obligation of Borrower for which Imposition Deposits are required.


 


(b)          Imposition Accounts.


 


All
Imposition Deposits shall be held in an institution (which may be Lender, if Lender is such an institution) whose deposits or accounts
are insured or guaranteed by a federal agency and which accounts meet the standards for custodial accounts as required by Lender
from time to time. Lender shall not be obligated to open additional accounts, or deposit Imposition Deposits in additional institutions,
when the amount of the Imposition Deposits exceeds the maximum amount of the federal deposit insurance or guaranty. No interest,
earnings or profits on the Imposition Deposits shall be paid to Borrower unless applicable law so requires. Imposition Deposits
shall not be trust funds, nor shall they operate to reduce the Indebtedness, unless applied by Lender for that purpose in accordance
with this Loan Agreement. For the purposes of 9-104(a)(3) of the UCC, Lender is the owner of the Imposition Deposits and shall
be deemed a "customer" with sole control of the account holding the Imposition Deposits.


 






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(c)          Payment
of Impositions; Sufficiency of Imposition Deposits.


 


Lender
may pay an Imposition according to any bill, statement or estimate from the appropriate public office or insurance company without
inquiring into the accuracy of the bill, statement or estimate or into the validity of the
Imposition. Imposition Deposits shall be required to be used by Lender to pay Taxes, insurance premiums and any other individual
Imposition only if:


 


(1)         no
Event of Default exists;


 


(2)         Borrower
has timely delivered to Lender all applicable bills or premium notices that it has received; and


 


(3)         sufficient
Imposition Deposits are held by Lender for each Imposition at the time such Imposition becomes due and payable.


 


Lender
shall have no liability to Borrower for failing to pay any Imposition if any of the conditions are not satisfied. If
at any time the amount of the Imposition Deposits held for payment of a specific Imposition exceeds the amount reasonably
deemed necessary by Lender to be held in connection with such Imposition, the excess may be credited against future installments
of Imposition Deposits for such Imposition.


 


(d)          Imposition
Deposits Upon Event of Default.


 


If
an Event of Default has occurred and is continuing, Lender may apply any Imposition Deposits, in such amount and in such order
as Lender determines, to pay any Impositions or as a credit against the Indebtedness.


 


(e)          Contesting
Impositions.


 


Other
than insurance premiums, Borrower may contest, at its expense, by appropriate legal proceedings, the amount or validity of any
Imposition if:


 


(1)         Borrower
notifies Lender of the commencement or expected commencement of such proceedings;


 


(2)         Lender
determines that the Mortgaged Property is not in danger of being sold or forfeited;


 


(3)         Borrower
deposits with Lender (or the applicable Governmental Authority if required by applicable law) reserves sufficient to pay the contested
Imposition, if required by Lender (or the applicable Governmental Authority);


 


(4)         Borrower
furnishes whatever additional security is required in the proceedings or is reasonably requested by Lender; and


 


(5)         Borrower
commences, and at all times thereafter diligently prosecutes, such contest in good faith until a final determination is made by
the applicable Governmental Authority.


 




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(f)          Release
to Borrower.


 


Upon
payment in full of all sums secured by the Security Instrument and this Loan Agreement and release by Lender of the lien of the
Security Instrument, Lender shall disburse to Borrower the balance of any Imposition Deposits then on deposit with Lender.


 


ARTICLE 13 - REPLACEMENT
RESERVE AND REPAIRS


 


Section 13.01      Covenants.


 


(a)          Initial
Deposits to Replacement Reserve Account and Repairs Escrow Account.


 


On
the Effective Date, Borrower shall pay to Lender:


 


(1)         the
Initial Replacement Reserve Deposit for deposit into the Replacement Reserve Account; and


 


(2)         the
Repairs Escrow Deposit for deposit into the Repairs Escrow Account.


 


(b)          Monthly
Replacement Reserve Deposits.


 


Borrower
shall deposit the applicable Monthly Replacement Reserve Deposit into the Replacement Reserve Account on each Payment Date.


 


(c)          Payment
for Replacements and Repairs.


 


Borrower
shall:


 


(1)         pay
all invoices for the Replacements and Repairs, regardless of whether funds on deposit in the Replacement Reserve Account or the
Repairs Escrow Account, as applicable, are sufficient, prior to any request for disbursement from the Replacement Reserve Account
or the Repairs Escrow Account, as applicable (unless Lender has agreed to issue joint checks in connection with a particular Replacement
or Repair);


 


(2)         pay
all applicable fees and charges of any Governmental Authority on account of the Replacements and Repairs, as applicable; and


 


(3)         provide
evidence satisfactory to Lender of completion of the Replacements and any Required Repairs (within the Completion Period or within
such other period or by such other date set forth in the Required Repair Schedule and any Borrower Requested Repairs and Additional
Lender Repairs (by the date specified by Lender for any such Borrower Requested Repairs or Additional Lender Repairs)).


 




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(d)          Assignment
of Contracts for Replacements and Repairs.


 


Borrower
shall assign to Lender any contract or subcontract for Replacements or Repairs, upon Lender's request, on a form of assignment
approved by Lender.


 


(e)          Indemnification.


 


Borrower
shall indemnify and hold Lender harmless from and against any and all actions, suits, claims, demands, liabilities, losses, damages,
obligations and costs or expenses, including litigation costs and reasonable attorneys' fees, arising from or in any way connected
with the performance of the Replacements or Repairs or investment of the Reserve/Escrow Account Funds.


 


(f)          Amendments
to Loan Documents.


 


Borrower
shall execute and/or deliver to Lender, upon request, an amendment to this Loan Agreement, the Security Instrument, any other Loan
Document and/or the original financing statement necessary or desirable to perfect Lender's lien upon any portion of the Mortgaged
Property for which Reserve/Escrow Account Funds were expended.


 


(g)          Administrative
Fees and Expenses.


 


Borrower
shall pay to Lender:


 


(1)         by
the date specified in the applicable invoice, the Repairs Escrow Account Administrative Fee and the Replacement Reserve Account
Administration Fee for Lender's services in administering the Repairs Escrow Account and Replacement Reserve Account and investing
the funds on deposit in the Repairs Escrow Account and the Replacement Reserve Account, respectively;


 


(2)         upon
demand, a reasonable inspection fee, not exceeding the Maximum Inspection Fee, for each inspection of the Mortgaged Property by
Lender in connection with a Repair or Replacement, plus all other reasonable costs and out-of-pocket expenses relating to such
inspections; and


 


(3)         upon
demand, all reasonable fees charged by any engineer, architect, inspector or other person inspecting the Mortgaged Property on
behalf of Lender for each inspection of the Mortgaged Property in connection with a Repair or Replacement, plus all other reasonable
costs and out-of-pocket expenses relating to such inspections.


 




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Section 13.02      Mortgage
Loan Administration Matters Regarding Reserves.


 


(a)          Accounts,
Deposits, and Disbursements.


 


(1)         Custodial
Accounts.


 


(A)         The
Replacement Reserve Account shall be an interest-bearing account that meets the standards for custodial accounts as required by
Lender from time to time. Lender shall not be responsible for any losses resulting from the investment of the Replacement Reserve
Deposits or for obtaining any specific level or percentage of earnings on such investment. All interest earned on the Replacement
Reserve Deposits shall be added to and become part of the Replacement Reserve Account; provided, however, if applicable
law requires, and so long as no Event of Default exists under any of the Loan Documents, Lender shall pay to Borrower the interest
earned on the Replacement Reserve Account not less frequently than the Replacement Reserve Account Interest Disbursement Frequency.
In no event shall Lender be obligated to disburse funds from the Reserve/Escrow Account if an Event of Default exists.


 


(B)         Lender
shall not be obligated to deposit the Repairs Escrow Deposits into an interest-bearing account.


 


(2)         Disbursements
by Lender Only.


 


Only
Lender or a designated representative of Lender may make disbursements from the Replacement Reserve Account and the Repairs Escrow
Account. Except as provided in Section 13.02(a)(8), disbursements shall only be made upon Borrower request and after satisfaction
of all conditions for disbursement.


 


(3)         Adjustment
of Deposits.


 


(A)         Mortgage
Loan Terms Exceeding Ten (10) Years.


 


If
the Loan Term exceeds ten (10) years, a physical needs assessment shall be ordered by Lender for the Mortgaged Property at the
expense of Borrower (which expense may be paid out of the Replacement Reserve Account if excess funds are available). The physical
needs assessment shall be performed no earlier than the sixth (6th) month and no later than the ninth (9th) month of the tenth
(10th) Loan Year (and of the twentieth (20th) Loan Year if the Loan Term exceeds twenty (20) years). After review of the physical
needs assessment, the amount of the Monthly Replacement Reserve Deposit may be adjusted by Lender for the remaining Loan Term by
written notice to Borrower so that the Monthly Replacement Reserve Deposits are sufficient to fund the Replacements as and when
required and/or the amount to be held in the Repairs Escrow Account may be adjusted by Lender so that the Repairs Escrow Deposit
is sufficient to fund the Repairs as and when required.


 




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(B)         Transfers.


 


In
connection with any Transfer of the Mortgaged Property, or any Transfer of an ownership interest in Borrower, Guarantor or Key
Principal which requires Lender's consent, Lender may review the amounts on deposit, if any, in the Replacement Reserve Account
or the Repairs Escrow Account, the amount of the Monthly Replacement Reserve Deposit and the likely repairs and replacements required
by the Mortgaged Property, and the related contingencies which may arise during the remaining Loan Term. Based upon that review,
Lender may require an additional deposit to the Replacement Reserve Account or the Repairs Escrow Account, or an increase in the
amount of the Monthly Replacement Reserve Deposit as a condition to Lender's consent to such Transfer. In all events, the transferee
shall be required to assume Borrower's duties and obligations under this Loan Agreement.


 


(4)         Insufficient
Funds.


 


Lender
may, upon thirty (30) days prior written notice to Borrower, require an additional deposit(s) to the Replacement Reserve Account
or Repairs Escrow Account, or an increase in the amount of the Monthly Replacement Reserve Deposit, if Lender determines that the
amounts on deposit in either the Replacement Reserve Account or the Repairs Escrow Account are not sufficient to cover the costs
for Required Repairs or Required Replacements or, pursuant to the terms of Section 13.02(a)(9), not sufficient to cover the costs
for Borrower Requested Repairs, Additional Lender Repairs, Borrower Requested Replacements or Additional Lender Replacements. Borrower's
agreement to complete the Replacements or Repairs as required by this Loan Agreement shall not be affected by the insufficiency
of any balance in the Replacement Reserve Account or the Repairs Escrow Account, as applicable.


 


(5)         Disbursements
for Replacements and Repairs.


 


(A)         Disbursement
requests may only be made after completion of the applicable Replacements and only to reimburse Borrower for the actual approved
costs of the Replacements. Lender shall not disburse from the Replacement Reserve Account the costs of routine maintenance to the
Mortgaged Property or for costs which are to be reimbursed from the Repairs Escrow Account or any similar account. Disbursement
from the Replacement Reserve Account and the Repairs Escrow Account shall not be made more frequently than the Maximum Replacement
Reserve Disbursement Interval. Other than in connection with a final request for disbursement, disbursements from the Replacement
Reserve Account shall not be less than the Minimum Replacement Reserve Disbursement Amount.


 




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(B)         Disbursement
requests may only be made after completion of the applicable Repairs and only to reimburse Borrower for the actual cost of the
Repairs, up to the Maximum Repair Cost. Lender shall not disburse any amounts which would cause the funds remaining in
the Repairs Escrow Account after any disbursement (other than with respect to the final disbursement) to be less than the
Maximum Repair Cost of the then-current estimated cost of completing all remaining Repairs. Lender shall not disburse from the
Repairs Escrow Account the costs of routine maintenance to the Mortgaged Property or for costs which are to be reimbursed from
the Replacement Reserve Account or any similar account. Disbursement from the Repairs Escrow Account shall not be made more frequently
than the Maximum Repair Disbursement Interval. Other than in connection with a final request for disbursement, disbursements from
the Repairs Escrow Account shall not be less than the Minimum Repairs Disbursement Amount.


 


(6)         Disbursement
Requests.


 


Each
request by Borrower for disbursement from the Replacement Reserve Account or the Repairs Escrow Account must be in writing, must
specify the Replacement or Repair for which reimbursement is requested (provided that for any Borrower Requested Replacements,
Borrower Requested Repairs, Additional Lender Replacements and Additional Lender Repairs, Lender shall have approved the use of
the Reserve/Escrow Account Funds for such replacements or repairs pursuant to the terms of Section 13.02(a)(9)), and must:


 


(A)         if
applicable, specify the quantity and price of the items or materials purchased, grouped by type or category;


 


(B)         if
applicable, specify the cost of all contracted labor or other services involved in
the Replacement or Repair for which such request for disbursement is made;


 


(C)         if
applicable, include copies of invoices for all items or materials purchased and all contracted labor or services provided;


 


(D)         include
evidence of payment of such Replacement or Repair satisfactory to Lender (unless Lender has agreed to issue joint checks in connection
with a particular Repair or Replacement as provided in this Loan Agreement); and


 


(E)         contain
a certification by Borrower that the Repair or Replacement has been completed lien free and in a good and workmanlike manner, in
accordance with any plans and specifications previously approved by Lender (if applicable) and in compliance with all applicable
laws, ordinances, rules and regulations of any Governmental Authority having jurisdiction over the Mortgaged Property, and otherwise
in accordance with the provisions of this Loan Agreement.


 




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(7)         Conditions
to Disbursement.


 


Lender
may require any or all of the following at the expense of Borrower as a condition to disbursement of funds from the Replacement
Reserve Account or the Repairs Escrow Account (provided that for any Borrower Requested Replacements, Borrower Requested Repairs,
Additional Lender Replacements and Additional Lender Repairs, Lender shall have approved the use of the Reserve/Escrow Account
Funds for such replacements or repairs pursuant to the terms of Section 13.02(a)(9)):


 


(A)         an
inspection by Lender of the Mortgaged Property and the applicable Replacement or Repair (subject to the rights of tenants under
the Leases and applicable law);


 


(B)         an
inspection (subject to the rights of tenants under the Leases and applicable law) or certificate of completion by an appropriate
independent qualified professional (such as an architect, engineer or property inspector, depending on the nature of the Repair
or Replacement) selected by Lender;


 


(C)         either:


 


(i)          a
search of title to the Mortgaged Property effective to the date of disbursement; or


 


(ii)         a
"date-down" endorsement to Lender's Title Policy extending the effective date of such policy to the date of disbursement,
and showing no Liens other than Permitted Encumbrances (or liens which Borrower is diligently contesting in good faith that have
been bonded off to the satisfaction of Lender); and


 


(D)         an
acknowledgement of payment, waiver of claims and release of lien for work performed and materials supplied from each contractor,
subcontractor or materialman in accordance with the requirements of applicable law and covering all work performed and materials
supplied (including equipment and fixtures) for the Mortgaged Property by that contractor, subcontractor or materialman through
the date covered by the disbursement request (or, in the event that payment to such contractor, subcontractor or materialman is
to be made by a joint check, the release of lien shall be effective through the date covered by the previous disbursement).


 


(8)         Joint
Checks for Periodic Disbursements.


 


Lender
may issue joint checks, payable to Borrower and the applicable supplier, materialman, mechanic, contractor, subcontractor or other
similar party, if:


 


(A)         the
cost of the Replacement or Repair exceeds the Replacement Threshold or the Repair Threshold, as applicable, and the contractor
performing such Replacement or Repair requires periodic payments pursuant to the terms of the applicable written contract;


 






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(B)         the
contract for such Repair or Replacement requires payment upon completion of the applicable portion of the work;


 


(C)         Borrower
makes the disbursement request after completion of the applicable portion of the work required to be completed under such contract;


 


(D)         the
materials for which the request for disbursement has been made are on site at the Mortgaged Property and are properly secured or
installed;


 


(E)         Lender
determines that the remaining funds in the Replacement Reserve Account designated for such Replacement, or in the Repairs Escrow
Account designated for such Repair, as applicable, are sufficient to complete the Replacement or Repair;


 


(F)         each
supplier, materialman, mechanic, contractor, subcontractor or other similar party receiving payments shall have provided, if requested
by Lender, a waiver of liens with respect to amounts which have been previously paid to them; and


 


(G)         all
other conditions for disbursement have been satisfied.


 


(9)         Replacements
and Repairs Other than Required Replacements and/or Required Repairs.


 


(A)         Borrower
Requested Replacements and Borrower Requested Repairs.


 


In
the event Borrower requests a disbursement from the Replacement Reserve Account or the Repairs Escrow Account to reimburse Borrower
for any Borrower Requested Replacement or Borrower Requested Repair, any related disbursement request must also contain support
for why Lender should allow such disbursement. Lender may make disbursements for Borrower Requested Replacements or Borrower Requested
Repairs if Lender determines that:


 


(i)          they
are of the type intended to be covered by the Replacement Reserve Account or the Repairs Escrow Account, as applicable;


 


(ii)         the
costs are reasonable;


 




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(iii)        the
amount of funds in the Replacement Reserve Account or Repairs Escrow Account, as applicable, is sufficient to pay such costs and
the then-current estimated cost of completing all remaining Required Replacements or Required
Repairs (at the Maximum Repair Cost), as applicable, and any other Borrower Requested Replacements, Borrower Requested Repairs,
Additional Lender Replacements or Additional Lender Repairs that have been previously approved by Lender; and


 


(iv)        all
conditions for disbursement from the Replacement Reserve Account or Repairs Escrow Account, as applicable, have been satisfied.


 


Nothing in this
Loan Agreement shall limit Lender's right to require an additional deposit to the Replacement Reserve Account or an increase to
the Monthly Replacement Reserve Deposit in connection with any such Borrower Requested Replacements, or an additional deposit to
the Repairs Escrow Account for any such Borrower Requested Repairs.


 


(B)         Additional
Lender Replacements and Additional Lender Repairs.


 


Lender
may require, as set forth in Section 6.02(b)(3), Section 6.03(c), or otherwise from time to time as permitted by the Loan Documents,
upon written notice to Borrower, that Borrower make Additional Lender Replacements or Additional Lender Repairs. Lender may make
disbursements from the Replacement Reserve Account for Additional Lender Replacements or from the Repairs Escrow Account for Additional
Lender Repairs, as applicable, if Lender determines that:


 


(i)          the
costs are reasonable;


 


(ii)         the
amount of funds in the Replacement Reserve Account or the Repairs Escrow Account, as applicable, is sufficient to pay such costs
and the then-current estimated cost of completing all remaining Required Replacements or Required Repairs (at the Maximum Repair
Cost), as applicable, and any other Borrower Requested Replacements, Borrower Requested Repairs, Additional Lender Replacements
or Additional Lender Repairs that have been previously approved by Lender; and


 


(iii)
all conditions for disbursement from the Replacement Reserve Account or Repairs Escrow Account, as applicable, have been
satisfied.


 


Nothing
in this Loan Agreement shall limit Lender's right to require an additional deposit to the Replacement Reserve Account or an increase
to the Monthly Replacement Reserve Deposit for any such Additional Lender Replacements or an additional deposit to the Repairs
Escrow Account for any such Additional Lender Repair.


 




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(10)        Excess
Costs.


 


In
the event any Replacement or Repair exceeds the approved cost set forth on the Required Replacement Schedule for Replacements,
or the Maximum Repair Cost for Repairs, Borrower may submit a disbursement request to reimburse Borrower for such excess cost.
The disbursement request must contain support for why Lender should allow such disbursement. Lender may make disbursements from
the Replacement Reserve Account or the Repairs Escrow Account, as applicable, if:


 


(A)         the
excess cost is reasonable;


 


(B)         the
amount of funds in the Replacement Reserve Account or the Repairs Escrow Account, as applicable, is sufficient to pay such excess
cost and the then-current estimated cost of completing all remaining Replacements and Repairs at the Maximum Repair Cost; and


 


(C)         all
conditions for disbursement from the Replacement Reserve Account or the Repairs Escrow Account have been satisfied.


 


(11)        Final
Disbursements.


 


Upon
completion of all Repairs in accordance with this Loan Agreement and so long as no Event of Default has occurred and is continuing,
Lender shall disburse to Borrower any amounts then remaining in the Repairs Escrow Account. Upon payment in full of the Indebtedness
and release by Lender of the lien of the Security Instrument, Lender shall disburse to Borrower any and all amounts then remaining
in the Replacement Reserve Account and the Repairs Escrow Account (if not previously released).


 


(b)          Approvals
of Contracts; Assignment of Claims.


 


Lender
retains the right to approve all contracts or work orders with materialmen, mechanics, suppliers, subcontractors, contractors or
other parties providing labor or materials in connection with the Replacements or Repairs. Notwithstanding Borrower's assignment
(in the Security Instrument) of its rights and claims against all persons or entities supplying labor or materials in connection
with the Replacement or Repairs, Lender will not pursue any such right or claim unless an Event of Default has occurred and is
continuing or as otherwise provided in Section 14.03(c).


 


(c)          Delays
and Workmanship.


 


If
Lender determines that any work for any Replacement or Repair has not timely commenced, has not been timely performed in a workmanlike
manner, or has not been timely completed in a workmanlike manner, Lender may, without notice to Borrower:


 




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(1)         withhold
disbursements from the Replacement Reserve Account or Repairs Escrow Account for such unsatisfactory Replacement or Repair, as
applicable;


 


(2)         proceed
under existing contracts or contract with third parties to make or complete such Replacement or Repair;


 


(3)         apply
the funds in the Replacement Reserve Account or Repairs Escrow Account toward the labor and materials necessary to make or complete
such Replacement or Repair, as applicable; or


 


(4)         exercise
any and all other remedies available to Lender under this Loan Agreement or any other Loan Document, including any remedies otherwise
available upon an Event of Default pursuant to the terms of Section 14.02.


 


To facilitate Lender's
completion or making of such Replacements or Repairs, Lender shall have the right to enter onto the Mortgaged Property and perform
any and all work and labor necessary to make or complete the Replacements or Repairs and employ watchmen to protect the Mortgaged
Property from damage. All funds so expended by Lender shall be deemed to have been advanced to Borrower, shall be part of the Indebtedness
and shall be secured by the Security Instrument and this Loan Agreement.


 


(d)          Appointment
of Lender as Attorney-In-Fact.


 


Borrower
hereby authorizes and appoints Lender as attorney-in-fact pursuant to Section 14.03(c).


 


(e)          No
Lender Obligation. 


 


Nothing
in this Loan Agreement shall:


 


(1)         Repairs;
make Lender responsible for making or completing the Replacements or


 


(2)         require
Lender to expend funds, whether from the Replacement Reserve Account, the Repairs Escrow Account or otherwise, to make or complete
any Replacement or Repair;


 


(3)         obligate
Lender to proceed with the Replacements or Repairs; or


 


(4)         obligate
Lender to demand from Borrower additional sums to make or complete any Replacement or Repair.


 


(f)          No
Lender Warranty.


 


Lender's
approval of any plans for any Replacement or Repair, release of funds from the Replacement Reserve Account or Repairs Escrow Account,
inspection of the Mortgaged


 




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Property
by Lender or its agents, representatives or designees, or other acknowledgment of completion of any Replacement or Repair in a
manner satisfactory to Lender shall not be deemed an acknowledgment or warranty to any person that the Replacement or Repair has
been completed in accordance with applicable building, zoning or other codes, ordinances, statutes, laws, regulations or requirements
of any governmental agency, such responsibility being at all times exclusively that of Borrower.


 


ARTICLE 14 - DEFAULTS/REMEDIES


 


Section 14.01       Events
of Default.


 


The
occurrence of any one or more of the following in this Section 14.01 shall constitute an Event of Default under this Loan Agreement.


 


(a)          Automatic
Events of Default.


 


The
following shall constitute automatic Events of Default:


 


(1)         any
failure by Borrower to pay or deposit when due any amount required by the Note, this Loan Agreement or any other Loan Document;


 


(2)         any
failure by Borrower to maintain the insurance coverage required by any Loan Document;


 


(3)         any
failure by Borrower to comply with the provisions of Section 4.02(d) relating to its single asset status;


 


(4)         any
warranty, representation, certificate or statement of Borrower, Guarantor or Key Principal in this Loan Agreement or any of the
other Loan Documents shall be false, inaccurate or misleading in any material respect when made;


 


(5)         fraud,
gross negligence, willful misconduct or material misrepresentation or material omission by Borrower, or any of its officers, directors,
trustees, partners, members or managers, or any Guarantor, Key Principal or Principal or any of their employees, officers, directors,
trustees, partners, members or managers in connection with:


 


(A)         the
application for, or creation of, the Indebtedness;


 


(B)         any
financial statement, rent roll or other report or information provided to Lender during the term of the Mortgage Loan;


 


(C)         any
request for Lender's consent to any proposed action, including a request for disbursement of Reserve/Escrow Account Funds or Collateral
Account Funds;


 




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(6)         the
occurrence of any Transfer not permitted by the Loan Documents;


 


(7)         the
occurrence of a Bankruptcy Event;


 


(8)         the
commencement of a forfeiture action or proceeding, whether civil or criminal, which, in Lender's reasonable judgment, could result
in a forfeiture of the Mortgaged Property or otherwise materially impair the lien created by this Loan Agreement or the Security
Instrument or Lender's interest in the Mortgaged Property;


 


(9)         if
Borrower, Guarantor or Key Principal is a trust, or if a Controlling Interest would be Transferred due to the termination or revocation
of a trust, the termination or revocation of such trust, except as set forth in Section 11.03(d);


 


(10)        any
failure by Borrower to complete any Repair related to fire, life or safety issues in accordance with the terms of this Loan Agreement
within the Completion Period (or such other date set forth on the Required Repair Schedule or otherwise required by Lender in writing
for such Repair); and


 


(11)        any
exercise by the holder of any other debt instrument secured by a mortgage, deed of trust or deed to secure debt on the Mortgaged
Property of a right to declare all amounts due under that debt instrument immediately due and payable.


 


(b)          Events
of Default Subject to a Specified Cure Period.


 


The
following shall constitute an Event of Default subject to the cure period set forth in the Loan Documents:


 


(1)         if
Key Principal or Guarantor is a natural person, the death of such individual, unless requirements of Section 11.03(e) are met;


 


(2)         the
occurrence of a Guarantor Bankruptcy Event, unless requirements of Section 11.03(f) are met;


 


(3)         any
failure by Borrower, Key Principal or Guarantor to comply with the provisions of Section 5.02(b) and Section 5.02(c); and


 


(4)         any
failure by Borrower to perform any obligation under this Loan Agreement or any Loan Document that is subject to a specified notice
and cure period, which failure continues beyond such specified notice and cure period as set forth herein or in the applicable
Loan Document.


 


(c)          Events
of Default Subject to Extended Cure Period.


 


The
following shall constitute an Event of Default subject to the cure period set forth below:


 




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(1)
Any failure by Borrower to perform any of its obligations under this Loan Agreement or any Loan Document (other than those specified
in Section 14.0l(a) or Section 14.0l(b) above) as and when required, which failure continues for a period of thirty (30) days after
notice of such failure by Lender to Borrower, provided, however, such period may be extended for up to an additional thirty (30)
days if Borrower, in the discretion of Lender, is diligently pursuing a cure of such; provided, further, however, no such
notice, grace period or extension shall apply if, in Lender's discretion, immediate exercise by Lender of a right or remedy under
this Loan Agreement or any Loan Document is required to avoid harm to Lender or impairment of the Mortgage Loan (including the
Loan Documents), the Mortgaged Property or any other security given for the Mortgage Loan.


 


Section 14.02       Remedies.


 


(a)          Acceleration;
Foreclosure.


 


Upon
the occurrence and during the continuance of an Event of Default, the entire unpaid principal balance of the Mortgage Loan, any
Accrued Interest, interest accruing at the Default Rate, the Prepayment Premium (if applicable), and all other Indebtedness shall
at once become due and payable, at the option of Lender, without any prior notice to Borrower, unless applicable law requires otherwise
(and in such case, after any required notice has been given). Lender may exercise this option to accelerate regardless of any prior
forbearance. In addition, Lender shall have all rights and remedies afforded to it hereunder and under the other Loan Documents,
including, foreclosure on and/or the power of sale of the Mortgaged Property, as provided in the Security Instrument, and any rights
and remedies available to it at law or in equity (subject to Borrower's statutory rights of reinstatement, if any, prior to a Foreclosure
Event). Any proceeds of a foreclosure or other sale under this Loan Agreement or any other Loan Document may be held and applied
by Lender as additional collateral for the Indebtedness pursuant to this Loan Agreement. Notwithstanding the foregoing, the occurrence
of any Bankruptcy Event shall automatically accelerate the Mortgage Loan and all obligations and Indebtedness shall be immediately
due and payable without notice or further action by Lender.


 


(b)          Loss
of Right to Receive Replacement Reserve Disbursements and Repairs Disbursements.


 


Upon
the occurrence and during the continuance of an Event of Default under this Loan Agreement, Borrower shall immediately lose all
of its rights to receive disbursements from the Reserve/Escrow Accounts and any Collateral Accounts. During the continuance of
any such Event of Default, Lender may use the Reserve/Escrow Account Funds and any Collateral Account Funds (or any portion thereof)
for any purpose, including: ·


 


(1)         repayment
of the Indebtedness, including principal prepayments and the Prepayment Premium applicable to such full or partial prepayment,
as applicable (however, such application of funds shall not cure or be deemed to cure any Event of Default);


 




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(2)         reimbursement
of Lender for all losses and expenses (including reasonable legal fees) suffered or incurred by Lender as a result of such Event
of Default;


 


(3)         completion
of the Replacement or Repair or for any other replacement or repair to the Mortgaged Property; and


 


(4)         payment
of any amount expended in exercising (and the exercise of) all rights and remedies available to Lender at law or in equity or under
this Loan Agreement or under any of the other Loan Documents.


 


Nothing in this Loan Agreement
shall obligate Lender to apply all or any portion of the Reserve/Escrow Account Funds or Collateral Account Funds on account of
any Event of Default by Borrower or to repayment of the Indebtedness or in any specific order of priority.


 


(c)          Remedies
Cumulative.


 


Each
right and remedy provided in this Loan Agreement is distinct from all other rights or remedies under this Loan Agreement or any
other Loan Document or afforded by applicable law, and each shall be cumulative and may be exercised concurrently, independently
or successively, in any order. Lender shall not be required to demonstrate any actual impairment of its security or any increased
risk of default in order to exercise any of its remedies with respect to an Event of Default.


 


Section 14.03       Additional
Lender Rights; Forbearance.


 


(a)          No
Effect Upon Obligations.


 


Lender
may, but shall not be obligated to, agree with Borrower, from time to time, and without giving notice to, or obtaining the consent
of, or having any effect upon the obligations of, any Guarantor, Key Principal or other third party obligor, to take any of the
following actions:


 


(1)         the
time for payment of the principal of or interest on the Indebtedness may be extended or the Indebtedness may be renewed in whole
or in part;


 


(2)         the
rate of interest on or period of amortization of the Mortgage Loan or the amount of the Monthly Debt Service Payments payable under
the Loan Documents may be modified;


 


(3)         the
time for Borrower's performance of or compliance with any covenant or agreement contained in any Loan Document, whether presently
existing or hereinafter entered into, may be extended or such performance or compliance may be waived;


 


(4)         the
maturity of the Indebtedness may be accelerated as provided in the Loan Documents;


 




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(5)         any
or all payments due under the Loan Agreement or any other Loan Document may be reduced;


 


(6)         any
Loan Document may be modified or amended by Lender and Borrower in any respect, including an increase in the principal amount of
the Mortgage Loan;


 


(7)         any
amounts under this Loan Agreement or any other Loan Document may be released;


 


(8)         any
security for the Indebtedness may be modified, exchanged, released, surrendered or otherwise dealt with or additional security
may be pledged or mortgaged for the Indebtedness;


 


(9)         the
payment of the Indebtedness or any security for the Indebtedness, or both, may be subordinated to the right to payment or the security,
or both, of any other present or future creditor of Borrower;


 


(10)        any
payments made by Borrower to Lender may be applied to the Indebtedness in such priority as Lender may determine in its discretion;
or


 


(11)        any
other terms of the Loan Documents may be modified.


 


(b)          No
Waiver of Rights or Remedies.


 


Any
waiver of an Event of Default or forbearance by Lender in exercising any right or remedy under this Loan Agreement or any other
Loan Document or otherwise afforded by applicable law, shall not be a waiver of any other Event of Default or preclude the exercise
or failure to exercise of any other right or remedy. The acceptance by Lender of payment of all or any part of the Indebtedness
after the due date of such payment, or in an amount which is less than the required payment, shall not be a waiver of Lender's
right to require prompt payment when due of all other payments on account of the Indebtedness or to exercise any remedies for any
failure to make prompt payment. Enforcement by Lender of any security for the Indebtedness shall not constitute an election by
Lender of remedies so as to preclude the exercise or failure to exercise of any other right available to Lender. Lender's receipt
of any c9ndemnation awards or insurance proceeds shall not operate to cure or waive any Event of Default.


 


(c)          Appointment
of Lender as Attorney-in-Fact.


 


Borrower
hereby irrevocably makes, constitutes and appoints Lender (and any officer of Lender or any Person designated by Lender for that
purpose) as Borrower's true and lawful proxy and attorney-in-fact (and agent-in-fact) in Borrower's name, place and stead, with
full power of substitution, to:


 




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(1)         use
any of the funds in the Replacement Reserve Account or Repairs Escrow Account for the purpose of making or completing the Replacements
or Repairs;


 


(2)         make
such additions, changes and corrections to the Replacements or Repairs as shall be necessary or desirable to complete the Replacements
or Repairs;


 


(3)         employ
such contractors, subcontractors, agents, architects and inspectors as shall be required for such purposes;


 


(4)         pay,
settle or compromise all bills and claims for materials and work performed in connection with the Replacements or Repairs, or as
may be necessary or desirable for the completion of the Replacements or Repairs, or for clearance of title;


 


(5)         adjust
and compromise any claims under any and all policies of insurance required pursuant to this Loan Agreement and any other Loan Document;


 


(6)         appear
in and prosecute any action arising from any insurance policies;


 


(7)         collect
and receive the proceeds of insurance, and to deduct from such proceeds Lender's expenses incurred in the collection of such proceeds;


 


(8)         commence,
appear in and prosecute, in Lender's or Borrower's name, any action
or proceeding relating to any condemnation;


 


(9)         settle
or compromise any claim in connection with any condemnation;


 


(10)        execute
all applications and certificates in the name of Borrower which may be required by any of the contract documents;


 


(11)        prosecute
and defend all actions or proceedings in connection with the Mortgaged Property or the rehabilitation and repair of the Mortgaged
Property;


 


(12)        take
such actions as are permitted in this Loan Agreement and any other Loan Documents;


 


(13)        execute
such financing statements and other documents and to do such other acts as Lender may require to perfect and preserve Lender's
security interest in, and to enforce such interests in, the collateral; and


 


(14)        carry
out any remedy provided for in this Loan Agreement and any other Loan Documents, including endorsing Borrower's name to checks,
drafts, instruments and other items of payment and proceeds of the collateral, executing change of address forms with the postmaster
of the United States Post Office serving the address of Borrower, changing the address of Borrower to that of Lender, opening all
envelopes addressed to Borrower and applying any payments contained therein to the Indebtedness.


 




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Borrower hereby
acknowledges that the constitution and appointment of such proxy and attorney-in-fact are coupled with an interest and are irrevocable
and shall not be affected by the disability or incompetence of Borrower. Borrower specifically acknowledges and agrees that this
power of attorney granted to Lender may be assigned by Lender to Lender's successors or assigns as holder of the Note (and the
Mortgage Loan). However, the foregoing shall not require Lender to incur any expense or take any action. Borrower hereby ratifies
and confirms all that such attorney-in-fact may do or cause to be done by virtue of any provision of this Loan Agreement and any
other Loan Documents.


 


Notwithstanding
the foregoing provisions, Lender shall not (except to the extent otherwise expressly provided in this Agreement) exercise its rights
as set forth in this Section 14.03(c) unless: (w) an Event of Default has occurred and is continuing, (x) an event which, with
the giving of notice or the passage of time, or both, would constitute an Event of Default has occurred and is continuing, or (y)
Lender determines, in its discretion, that exigent circumstances exist or that such exercise is necessary or prudent in order to
protect and preserve the Mortgaged Property, or Lender's lien priority and security interest in the Mortgaged Property.


 


Section 14.04         Waiver
of Marshaling.


 


Notwithstanding
the existence of any other security interests in the Mortgaged Property held by Lender or by any other party, Lender shall have
the right to determine the order in which any or all of the Mortgaged Property shall be subjected to the remedies provided in this
Loan Agreement, any other Loan Document or applicable law. Lender shall have the right to determine the order in which all or any
part of the Indebtedness is satisfied from the proceeds realized upon the exercise of such remedies. Borrower and any party who
now or in the future acquires a security interest in the Mortgaged Property and who has actual or constructive notice of this Loan
Agreement waives any and all right to require the marshaling of assets or to require that any of the Mortgaged Property be sold
in the inverse order of alienation or that any of the Mortgaged Property be sold in parcels or as an entirety in connection with
the exercise of any of the remedies permitted by applicable law or provided in this Loan Agreement or any other Loan Documents.


 


ARTICLE 15-MISCELLANEOUS


 


Section 15.01       Governing
Law; Consent to Jurisdiction and Venue.


 


(a)          Governing
Law.


 


This
Loan Agreement and any other Loan Document which does not itself expressly identify the law that is to apply to it, shall be governed
by the laws of the Property Jurisdiction without regard to the application of choice of law principles.


 




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(b)          Venue.


 


Any
controversy arising under or in relation to this Loan Agreement or any other Loan Document shall be litigated exclusively in the
Property Jurisdiction without regard to conflicts of laws principles. The state and federal courts and authorities with jurisdiction
in the Property Jurisdiction shall have exclusive jurisdiction over all controversies which shall arise under or in relation to
this Loan Agreement or any other Loan Document. Borrower irrevocably consents to service, jurisdiction, and venue of such courts
for any such litigation and waives any other venue to which it might be entitled by virtue of domicile, habitual residence or otherwise.


 


Section 15.02       Notice.


 


(a)          Process
of Serving Notice.


 


Except
as otherwise set forth herein or in any other Loan Document, all Notices under this Loan Agreement and any other Loan Document
shall be:


 


(1)         in
writing and shall be:


 


(A)         delivered,
in person;


 


(B)         mailed,
postage prepaid, either by registered or certified delivery, return receipt requested;


 


(C)         sent
by overnight courier; or


 


(D)         sent
by electronic mail with originals to follow by overnight courier;


 


(2)         addressed
to the intended recipient at Borrower's Notice Address and Lender's Notice Address, as applicable; and


 


(3)         deemed
given on the earlier to occur of:


 


(A)         the
date when the Notice is received by the addressee; or


 


(B)          if the recipient refuses or rejects delivery, the date on which the Notice is so refused or rejected, as conclusively established
by the records of the United States Postal Service or such express courier service.


 


(b)          Change
of Address.


 


Any
party to this Loan Agreement may change the address to which Notices intended for it are to be directed by means of Notice given
to the other parties identified on the Summary of Loan Terms in accordance with this Section 15.02.


 




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(c)          Default
Method of Notice.


 


Any
required Notice under this Loan Agreement or any other Loan Document which does not specify how Notices are to be given shall be
given in accordance with this Section 15.02.


 


(d)          Receipt
of Notices.


 


Neither
Borrower nor Lender shall refuse or reject delivery of any Notice given in accordance with this Loan Agreement. Each party is required
to acknowledge, in writing, the receipt of any Notice upon request by the other party.


 


Section 15.03      Successors
and Assigns Bound; Sale of Mortgage Loan.


 


(a)          Binding
Agreement.


 


This
Loan Agreement shall bind, and the rights granted by this Loan Agreement shall inure to, the successors and assigns of Lender and
the permitted successors and assigns of Borrower. However, a Transfer not permitted by this Loan Agreement shall be an Event of
Default and shall be void ab initio.


 


(b)          Sale
of Mortgage Loan; Change of Servicer.


 


Nothing
in this Loan Agreement shall limit Lender's (including its successors and assigns) right to sell or transfer the Mortgage Loan
or any interest in the Mortgage Loan. The Mortgage Loan or a partial interest in the Mortgage Loan (together with this Loan Agreement
and the other Loan Documents) may be sold one (1) or more times without prior notice to Borrower. A sale may result in a change
of the Loan Servicer.


 


Section 15.04       Counterparts.


 


This
Loan Agreement may be executed in any number of counterparts with the same effect as if the parties hereto had signed the same
document and all such counterparts shall be construed together and shall constitute one (1) instrument.


 


Section 15.05       Joint
and Several (or Solidary) Liability.


 


If
more than one Person signs this Loan Agreement as Borrower, the obligations of such Persons shall be joint and several (solidary
instead for purposes of Louisiana law).


 


Section 15.06       Relationship
of Parties; No Third Party Beneficiary.


 


(a)          Solely
Creditor and Debtor.


 


The
relationship between Lender and Borrower shall be solely that of creditor and debtor, respectively, and nothing contained in this
Loan Agreement shall create any other relationship between Lender and Borrower. Nothing contained in this Loan Agreement shall
constitute Lender as a joint venturer, partner or agent of Borrower, or render Lender liable
for any debts, obligations, acts, omissions, representations or contracts of Borrower.


 




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(b)          No
Third Party Beneficiaries.


 


No
creditor of any party to this Loan Agreement and no other person shall be a third party beneficiary of this Loan Agreement or any
other Loan Document or any account created or contemplated under this Loan Agreement or any other Loan Document. Nothing contained
in this Loan Agreement shall be deemed or construed to create an obligation on the part of Lender to any third party nor shall
any third party have a right to enforce against Lender any right that Borrower may have under this Loan Agreement. Without limiting
the foregoing:


 


(1)         any
Servicing Arrangement between Lender and any Loan Servicer shall constitute a contractual obligation of such Loan Servicer that
is independent of the obligation of Borrower for the payment of the Indebtedness;


 


(2)         Borrower
shall not be a third party beneficiary of any Servicing Arrangement; and


 


(3)         no
payment by the Loan Servicer under any Servicing Arrangement will reduce the amount of the Indebtedness.


 


Section 15.07       Severability;
Entire Agreement; Amendments.


 


The
invalidity or unenforceability of any provision of this Loan Agreement or any other Loan Document shall not affect the validity
or enforceability of any other provision of this Loan Agreement or of any other Loan Document, all of which shall remain in full
force and effect, including the Guaranty. This Loan Agreement contains the complete and entire agreement among the parties as to
the matters covered, rights granted and the obligations assumed in this
Loan Agreement. This Loan Agreement may not be amended or modified except by written agreement signed by the parties hereto.


 


Section 15.08       Construction.


 


(a)          The
captions and headings of the sections of this Loan Agreement and the Loan Documents are for convenience only and shall be disregarded
in construing this Loan Agreement and the Loan Documents.


 


(b)          Any
reference in this Loan Agreement to an "Exhibit" or "Schedule" or a "Section" or an "Article"
shall, unless otherwise explicitly provided, be construed as referring, respectively, to an exhibit or schedule attached to this
Loan Agreement or to a Section or Article of this Loan Agreement.


 


(c)          Any
reference in this Loan Agreement to a statute or regulation shall be construed as referring to that statute or regulation as amended
from time to time.


 




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(d)          Use
of the singular in this Loan Agreement includes the plural and use of the plural includes the singular.


 


(e)          As
used in this Loan Agreement, the term "including" means "including, but not limited to" or "including,
without limitation," and is for example only and not a limitation.


 


(f)          Whenever Borrower's knowledge is implicated in this Loan Agreement or the phrase ''to Borrower's knowledge" or a similar phrase
is used in this Loan Agreement, Borrower's knowledge or such phrase(s) shall be interpreted to mean to the best of Borrower's knowledge
after reasonable and diligent inquiry and investigation.


 


(g)          Unless otherwise provided in this Loan Agreement, if Lender's approval, designation, determination, selection, estimate, action
or decision is required, permitted or contemplated hereunder, such approval, designation, determination, selection, estimate, action
or decision shall be made in Lender's sole and absolute discretion.


 


(h)          All
references in this Loan Agreement to a separate instrument or agreement shall include such instrument or agreement as the same
may be amended or supplemented from time to time pursuant to the applicable provisions thereof.


 


(i)          "Lender
may" shall mean at Lender's discretion, but shall not be an obligation.


 


Section 15.09         Mortgage
Loan Servicing.


 


All
actions regarding the servicing of the Mortgage Loan, including the collection of payments, the giving and receipt of notice, inspections
of the Mortgaged Property, inspections of books and records, and the granting of consents and approvals, may be taken by the Loan
Servicer unless Borrower receives notice to the contrary. If Borrower receives conflicting notices regarding the identity of the
Loan Servicer or any other subject, any such notice from Lender shall govern. The Loan Servicer may change from time to time (whether
related or unrelated to a sale of the Mortgage Loan). If there is a change of the Loan Servicer, Borrower will be given notice
of the change.


 


Section 15.10         Disclosure
of Information.


 


Lender
may furnish information regarding Borrower, Key Principal or Guarantor or the Mortgaged Property to third parties with an existing
or prospective interest in the servicing, enforcement, evaluation, performance, purchase or securitization of the Mortgage Loan,
including trustees, master servicers, special servicers, rating agencies and organizations maintaining databases on the underwriting
and performance of multifamily mortgage loans. Borrower irrevocably waives any and all rights it may have under applicable law
to prohibit such disclosure, including any right of privacy.


 




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Section 15.11         Waiver;
Conflict.


 


No
specific waiver of any of the terms of this Loan Agreement shall be considered as a general waiver. If any provision of this Loan
Agreement is in conflict with any provision of any other Loan Document, the provision contained in this Loan Agreement shall control.


 


Section 15.12         [Intentionally
Deleted.]


 


Section 15.13         Subrogation.


 


If,
and to the extent that, the proceeds of the Mortgage Loan are used to pay, satisfy or discharge any obligation of Borrower for
the payment of money that is secured by a pre-existing mortgage, deed of trust or other lien encumbering the Mortgaged Property,
such Mortgage Loan proceeds shall be deemed to have been advanced by Lender at Borrower's request, and Lender shall automatically,
and without further action on its part, be subrogated to the rights, including lien priority, of the owner or holder of the obligation
secured by such prior lien, whether or not such prior lien is released.


 


Section 15.14         Counting
of Days.


 


Except
where otherwise specifically provided, any reference in this Loan Agreement to a period of "days" means calendar days,
not Business Days. If the date on which Borrower is required to perform an obligation under this Loan Agreement is not a Business
Day, Borrower shall be required to perform such obligation by the Business Day immediately preceding such date; provided,
however, in respect of any Payment Date, or if the Maturity Date is other than a Business Day, Borrower shall be obligated
to make such payment by the Business Day immediately following such date.


 


Section 15.15         Revival
and Reinstatement of Indebtedness.


 


If
the payment of all or any part of the Indebtedness by Borrower, Key Principal or any Guarantor or the transfer to Lender of any
collateral or other property should for any reason subsequently be declared to be void or voidable under any state or federal law
relating to creditors' rights, including provisions of the Insolvency Laws relating to a Voidable Transfer, and if Lender is required
to repay or restore, in whole or in part, any such Voidable Transfer, or elects to do so upon the advice of its counsel, then the
amount of such Voidable Transfer or the amount of such Voidable Transfer that Lender is required or elects to repay or restore,
including all reasonable costs, expenses and attorneys' fees incurred by Lender in connection therewith, and the Indebtedness shall
automatically shall be revived, reinstated and restored by such amount and shall exist as though such Voidable Transfer had never
been made.


 


Section 15.16         Time
is of the Essence.


 


Borrower
agrees that, with respect to each and every obligation and covenant contained in this Loan Agreement and the other Loan Documents,
time is of the essence.


 




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Section 15.17         Final
Agreement.


 


THIS
LOAN AGREEMENT ALONG WITH ALL OF THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO THE
SUBJECT MATTER HEREOF AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS. THERE ARE
NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. All prior or contemporaneous agreements, understandings, representations and
statements, oral or written, are merged into this Loan Agreement and the other Loan Documents. This Loan Agreement, the other Loan
Documents and any of their provisions may not be waived, modified, amended, discharged or terminated except by an agreement in
writing signed by the party against which the enforcement of the waiver, modification, amendment, discharge or termination is sought,
and then only to the extent set forth in that agreement.


 


Section 15.18         WAIVER
OF TRIAL BY JURY.


 


TO
THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH OF BORROWER AND LENDER (A) COVENANTS AND AGREES NOT TO ELECT A TRIAL BY JURY
WITH RESPECT TO ANY ISSUE ARISING OUT OF THIS LOAN AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR THE RELATIONSHIP BETWEEN THE PARTIES
AS BORROWER AND LENDER, THAT IS TRIABLE OF RIGHT BY A JURY AND (B) WAIVES ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO SUCH ISSUE
TO THE EXTENT THAT ANY SUCH RIGHT EXISTS NOW OR IN THE FUTURE. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS SEPARATELY GIVEN BY EACH
PARTY, KNOWINGLY AND VOLUNTARILY WITH THE BENEFIT OF COMPETENT LEGAL COUNSEL.


 


IN
WITNESS WHEREOF, Borrower and Lender have signed and delivered this Loan Agreement under seal (where applicable) or have caused
this Loan Agreement to be signed and delivered under seal (where applicable) by their duly authorized representatives. Where applicable
law so provides, Borrower and Lender intend that this Loan Agreement shall be deemed to be signed and delivered as a sealed instrument.


 


[Remainder of Page Intentionally
Blank]


 




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	 	BORROWER:
	 	 	 	 
	 	BELL BR WATERFORD CROSSING JV, LLC,
	 	 	a Delaware limited liability company
	 	 	 	 
	 	By:  	Bell Partners Inc., a North Carolina corporation,
	 	 	its Co-Manager
	 	 	 
	 	 	By:  	/s/ Steven D. Bell
	 	 	 	Name: Steven D. Bell
	 	 	 	Title:  CEO


 




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	 	LENDER:
	 	 
	 	CWCAPITAL LLC, a Massachusetts limited liability company
	 	 	 
	 	By: 	/s/ Paul A. Sherrington
	 	 	Paul A. Sherrington
	 	 	Managing Director


 




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SCHEDULE 1


TO MULTIFAMILY LOAN
AND SECURITY AGREEMENT


 


Definitions Schedule


(Interest Rate Type -
Fixed Rate)


 


Capitalized
terms used in the Loan Agreement have the meanings given to such terms in this Definitions Schedule.


 


"Accrued Interest"
means unpaid interest, if any, on the Mortgage Loan that has not been added to the unpaid principal balance of the Mortgage Loan
pursuant to Section 2.02(b) (Capitalization of Accrued But Unpaid Interest) of the Loan Agreement.


 


"Additional Lender
Repairs" means repairs of the type listed on the Required Repair Schedule but not otherwise identified thereon that are
determined advisable by Lender to keep the Mortgaged Property in good order and repair and in good marketable condition or to prevent
deterioration of the Mortgaged Property.


 


"Additional Lender
Replacements" means replacements of the type listed on the Required Replacement Schedule but not otherwise identified
thereon that are determined advisable by Lender to keep the Mortgaged Property in good order and repair and in good marketable
condition or to prevent deterioration of the Mortgaged Property.


 


"Amortization Period"
has the meaning set forth in the Summary of Loan Terms.


 


"Amortization Type" has the meaning set forth in the Summary
of Loan Terms.


 


"Bank Secrecy Act"
means the Bank Secrecy Act of 1970, as amended (e.g., 31 U.S.C. Sections 5311-5330).


 


"Bankruptcy Event"
means any one or more of the following:


 


(a)          the
commencement, filing or continuation of a voluntary case or proceeding under one or more of the Insolvency Laws by Borrower;


 


(b)          the
acknowledgment in writing by Borrower (other than to Lender in connection with a workout) that it is unable to pay its debts generally
as they mature;


 


(c)          the
making of a general assignment for the benefit of creditors by Borrower;


 


(d)          the
commencement, filing or continuation of an involuntary case or proceeding wider one or more Insolvency Laws against Borrower; or


 




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(e)          the
appointment of a receiver, liquidator, custodian, sequestrator, trustee or other similar officer who exercises control over Borrower
or any substantial part of the assets of Borrower; provided, however, that any proceeding or
case under (d) or (e) above shall not be a Bankruptcy Event until the ninetieth (90th) day after filing (if not earlier dismissed)
so long as such proceeding or case occurred without the consent, encouragement or active participation of Borrower, Guarantor,
Key Principal, Principal or any Borrower Affiliate (in which event such case or proceeding shall be a Bankruptcy Event immediately).


 


"Borrower"
means, individually (and jointly and severally (solidarily instead for purposes of Louisiana law) if more than one), the entity
(or entities) identified as "Borrower" in the first paragraph of the Loan Agreement.


 


"Borrower Affiliate"
means, as to Borrower, Guarantor or Key Principal:


 


(a)          any
entity that directly or indirectly owns, controls or holds with power to vote, twenty percent (20%) or more of the outstanding
voting securities of Borrower, Guarantor or Key Principal;


 


(b)          any
entity in which Borrower, Guarantor or Key Principal directly or indirectly owns, controls or holds with the power to vote, twenty
percent (20%) or more of the outstanding voting securities of such entity;


 


(c)          any
entity controlled by or under common control with, or which controls Borrower, Guarantor or Key Principal (the term "control"
for these purposes means the ability, whether by the ownership of shares or other equity interests, by contract or otherwise, to
elect a majority of the directors of a corporation, to make management decisions on behalf of, or independently to select the managing
partner of, a partnership, or otherwise to have the power independently to remove and then select a majority of those individuals
exercising managerial authority over an entity, and control shall be conclusively presumed in the case of the ownership of fifty
percent (50%) or more of the equity interests);


 


(d)          any
partner, manager, member or shareholder of Borrower, Guarantor or Key Principal; or


 


(e)          any
other individual that is related (to the third degree of consanguinity) by blood or marriage to Borrower, Guarantor or Key Principal.


 


"Borrower Requested
Repairs" means repairs not listed on the Required Repair Schedule requested by Borrower to be reimbursed from the Repairs
Escrow Account.


 


"Borrower Requested
Replacements" means replacements not listed on the Required Replacement Schedule requested by Borrower to be reimbursed
from the Replacement Reserve Account.


 


"Borrower's General
Business Address" has the meaning set forth in the Summary of Loan Terms.


 


"Borrower's Notice
Address" has the meaning set forth in the Summary of Loan Terms.


 




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"Business Day"
means any day other than Saturday, Sunday or any other day on which Lender is not open for business.


 


"Collateral Account
Funds" means, collectively, the funds on deposit in any or all of the Collateral Accounts, including the Reserve/Escrow
Account Funds.


 


"Collateral Accounts"
means any account designated as such by Lender pursuant to a Collateral Agreement or as established pursuant to this Loan Agreement,
including the Reserve/Escrow Account.


 


"Collateral Agreement"
means any separate agreement between Borrower and Lender for the establishment of any other fund, reserve or account.


 


"Completion Period"
has the meaning set forth in the Summary of Loan Terms.


 


"Condemnation Action" has the meaning set forth in the
Security Instrument.


 


"Controlling Interest" means:


 


(a)          with
respect to any entity, the following:


 


(1)         if
such entity is a general partnership or a joint venture, fifty-one percent (51%) of all general partnership or joint venture interests
in such entity;


 


(2)         if
such entity is a limited partnership:


 


(A)         any
general partnership interest; or


 


(B)         fifty-one
percent (51%) of all limited partnership interests in such entity;


 


(3)         if
such entity is a limited liability company or a limited liability partnership:


 


(A)         fifty-one
percent (51%) of all membership or other ownership interests in such entity;


 


(B)         the
amount of membership or ownership interests sufficient to have the power to appoint or change any manager; or


 


(C)         the
interest of any manager;


 


(4)         if
such entity is a corporation (other than a Publicly-Held Corporation) with only one class of voting stock, fifty-one percent (51%)
of voting stock in such corporation;


 




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(5)         if
such entity is a corporation (other than a Publicly-Held Corporation) with more than one class of voting stock, the amount of shares
of voting stock sufficient to have the power to elect the majority of directors of such corporation;


 


(6)         if
such entity is a trust (other than a land trust or a Publicly-Held Trust), the trustee of such trust or the ability to remove,
appoint or substitute the trustee of such trust (unless the trustee of such trust after such removal, appointment or substitution
is a trustee identified in the trust agreement approved by Lender); or


 


(b)          the
power or right in any agreement (including provisions contained in the organizational and/or governing documents of Borrower, Guarantor
or Key Principal) to control or otherwise limit or modify, directly or indirectly, the management and operations of Borrower, Guarantor
or Key Principal, including the power to:


 


(1)         cause
a change in or replacement of the Person that controls the management and operations of Borrower, Guarantor or Key Principal; or


 


(2)         limit
or otherwise modify the extent of such Person's control over the management and operations of Borrower, Guarantor or Key Principal.


 


"Credit Score"
means a numerical value or a categorization derived from a statistical tool or modeling system used to measure credit risk and
predict the likelihood of certain credit behaviors, including default.


 


"Debt Service Amounts"
means the Monthly Debt Service Payments and all other amounts payable under the Loan Agreement, the Note, the Security Instrument
or any other Loan Document.


 


"Default Rate"
means an interest rate equal to the lesser of:


 


(a)          the
sum of the Interest Rate plus four (4) percentage points; or


 


(b)          the
maximum interest rate which may be collected from Borrower under applicable law.


 


"Definitions Schedule"
means this Schedule 1 (Definitions Schedule) to the Loan Agreement.


 


"Effective Date" has the meaning set
forth in the Summary of Loan Terms.


 


"Employee Benefit
Plan" has the meaning as defined in Section 3(3) of ERISA.


 


"Enforcement Costs" has the meaning set forth
in the Security Instrument.


 


"Environmental
Indemnity Agreement" means that certain Environmental Indemnity Agreement dated as of the Effective Date made by Borrower
to and for the benefit of Lender, as the same may be amended, restated, replaced, supplemented,
or otherwise modified from time to time.


 




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"Environmental
Laws" has the meaning set forth in the Environmental Indemnity Agreement.


 


"ERISA"
means the Employee Retirement Income Security Act of 1974, as amended.


 


"Event of Default''
means the occurrence of any event listed in Section 14.01 (Events of Default) of the Loan Agreement.


 


"Exceptions to
Representations and Warranties" means the exceptions to Borrower's representations and warranties set forth on Schedule
7 (Exceptions to Representations and Warranties Schedule) to the Loan Agreement.


 


"First Payment
Date" has the meaning set forth in the Summary of Loan Terms.


 


"First Principal
and Interest Payment Date" has the meaning set forth in the Summary of Loan Terms, if applicable.


 


"Fixed Rate"
has the meaning set forth in the Summary of Loan Terms.


 


"Fixtures"
has the meaning set forth in the Security Instrument.


 


"Force Majeure
Delays" means acts of God (natural disasters), acts of war, labor disturbance (including strikes or lockouts), governmental
action (including the revocation or refusal to grant licenses or permits, where such revocation or refusal is not due to the fault
of Borrower), unavoidable casualties or any other substantially similar causes beyond the control of Borrower, and of which Borrower
shall have notified Lender in writing within ten (10) days after occurrence.


 


"Foreclosure Event"
means:


 


(a)          foreclosure
under the Security Instrument;


 


(b)          any
other exercise by Lender of rights and remedies (whether under the Security Instrument or under applicable law, including Insolvency
Laws) as holder of the Mortgage Loan and/or the Security Instrument, as a result of which Lender (or its designee or nominee) or
a third party purchaser becomes owner of the Mortgaged Property;


 


(c)          delivery
by Borrower to Lender (or its designee or nominee) of a deed or other conveyance of Borrower's interest in the Mortgaged Property
in lieu of any of the foregoing; or


 


(d)          in
Louisiana, any dation en paiement.


 




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"Governmental
Authority" means any board, commission, department or body of any municipal, county, state or federal governmental unit,
or any subdivision of any of them, that has or acquires jurisdiction over Borrower or the Mortgaged Property or the use,
operation or improvement of the Mortgaged Property.


 


"Guarantor"
means any guarantor of the Indebtedness or any other obligation of Borrower under any Loan Document.


 


"Guarantor Bankruptcy
Event" means any one or more of the following:


 


(a)          the
commencement, filing or continuation of a voluntary case or proceeding under one or more of the Insolvency Laws by Guarantor;


 


(b)          the
acknowledgment in writing by Guarantor (other than to Lender in connection with a workout) that it is unable to pay its debts generally
as they mature;


 


(c)          the
making of a general assignment for the benefit of creditors by Guarantor;


 


(d)          the
commencement, filing or continuation of an involuntary case or proceeding under one or more Insolvency Laws against Guarantor;
or


 


(e)          the
appointment of a receiver, liquidator, custodian, sequestrator, trustee or other similar officer who exercises control over Guarantor
or any substantial part of the assets of Guarantor, as applicable;


 


provided, however, that
any proceeding or case under (d) or (e) above shall not be a Guarantor Bankruptcy Event until the ninetieth (90th) day after filing
(if not earlier dismissed) so long as such proceeding or case occurred without the consent, encouragement or active participation
of Borrower, Guarantor, Key Principal, Principal, or any Borrower Affiliate (in which event such case or proceeding shall be a
Guarantor Bankruptcy Event immediately).


 


"Guarantor's General
Business Address" has the meaning set forth in the Summary of Loan Terms.


 


"Guarantor's Notice
Address" has the meaning set forth in the Summary of Loan Terms.


 


"Guaranty"
means, individually and collectively, any Payment Guaranty, Non-Recourse Guaranty or other guaranty executed by Guarantor in connection
with the Mortgage Loan.


 


"Immediate Family
Members" means a child, grandchild, spouse, sibling, or parent, each of whom must have obtained a legal age of majority.


 


"Imposition Deposits"
has the meaning set forth in the Security Instrument.


 


"Impositions" has the meaning set forth in the Security
Instrument.


 


"Improvements"
has the meaning set forth in the Security Instrument.


 


"Indebtedness" has the meaning set forth in the Security Instrument.


 




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"Initial
Replacement Reserve Deposit” has the meaning set forth in the Summary of Loan Terms.


 


"Insolvency
Laws" means the United States Bankruptcy Code, 11 U.S.C. Section 101, et seq., together with any other federal or state
law affecting debtor and creditor rights or relating to the bankruptcy, insolvency, reorganization, arrangement, moratorium, readjustment
of debt, dissolution, liquidation or similar laws, proceedings, or equitable principles affecting the enforcement of creditors'
rights, as amended from time to time.


 


"Insolvent"
means:


 


(a)          that
the sum total of all of a specified Person's liabilities (whether secured or unsecured, contingent or fixed, or liquidated or unliquidated)
is in excess of the value of such Person's non-exempt assets, i.e., all of the assets of such Person that are available to satisfy
claims of creditors; or


 


(b)          such
Person's inability to pay its debts as they become due.


 


"Intended
Prepayment Date" means the date upon which Borrower intends to make a prepayment on
the Mortgage Loan, as set forth in the Prepayment Notice.


 


"Interest
Accrual Method" has the meaning set forth in the Summary of Loan Terms.


 


"Interest
Only Term" has the meaning set forth in the Summary of Loan Terms.


 


"Interest Rate"
means the Fixed Rate.


 


"Interest Rate
Type" has the meaning set forth in the Summary of Loan Terms.


 


"Internal Revenue
Code" means the Internal Revenue Code of 1986, as amended.


 


"Investor"
means any Person to whom Lender intends to sell, transfer, deliver or assign the Mortgage Loan in the secondary mortgage market.


 


"Key Principal"
means, collectively:


 


(a)          the
natural person(s) or entity that controls and manages Borrower that Lender determines is critical to the successful operation and
management of Borrower and the Mortgaged Property, as identified as such in the Summary of Loan Terms; or


 


(b)          any
natural person or entity who becomes a Key Principal after the date of the Loan Agreement and is identified as such in an assumption
agreement, or another amendment or supplement to the Loan Agreement.


 


"Key Principal's
General Business Address" has the meaning set forth in the Summary of Loan Terms.


 




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"Key
Principal' s Notice Address" has the meaning set forth in the Summary of Loan Terms.


 


"Land"
means the land described in Exhibit A to the Security Instrument.


 


"Last
Interest Only Payment Date" has the meaning set forth in the Summary of Loan Terms,
if applicable.


 


"Late
Charge" means an amount equal to the delinquent amount then due under the Loan Documents
multiplied by five percent (5%).


 


"Leases"
has the meaning set forth in the Security Instrument.


 


"Lender"
means the entity identified as "Lender" in the first paragraph of the Loan Agreement and its transferees, successors
and assigns, or any subsequent holder of the Note.


 


"Lender's
General Business Address" has the meaning set forth in the Summary of Loan Terms.


 


"Lender's Notice
Address" has the meaning set forth in the Summary of Loan Terms.


 


"Lender's Payment Address" has the meaning
set forth in the Summary of Loan Terms.


 


"Lien" has the meaning set forth in the Security Instrument.


 


"Loan
Agreement" means the Multifamily Loan and Security Agreement dated as of the Effective
Date executed by and between Borrower and Lender to which this Definitions Schedule is attached, as the same may be amended, restated,
replaced, supplemented or otherwise modified from time to time.


 


"Loan
Amount" has the meaning set forth in the Summary of Loan Terms.


 


"Loan
Application" means the application for the Mortgage Loan submitted by Borrower to
Lender.


 


"Loan
Documents" means the Note, the Loan Agreement, the Security Instrument, the Environmental
Indemnity Agreement, the Guaranty, all guaranties, all indemnity agreements, all Collateral Agreements, all O&M Programs, and
any other documents now or in the future executed by Borrower, Guarantor, Key Principal, any guarantor or any other person in connection
with the Mortgage Loan, as such documents may be amended, restated, replaced, supplemented or otherwise modified from time to time.


 


"Loan
Servicer" means the entity that from time to time is designated by Lender to collect
payments and deposits and receive notices under the Note, the Loan Agreement, the Security Instrument and any other Loan Document,
and otherwise to service the Mortgage Loan for the benefit of Lender. Unless Borrower receives notice to the contrary, the Loan
Servicer shall be the Lender originally named on the Summary of Loan Terms.


 




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"Loan
Term'' has the meaning set forth in the Summary of Loan Terms.


 


"Loan
Year" has the meaning set forth in the Summary of Loan Terms.


 


"Material
Commercial Lease" means any non-Residential Lease, including any master lease (which
term "master lease" shall include any master lease to a single corporate tenant), other than:


 


(a)          a
non-Residential Lease that comprises less than five percent (5%) of total gross income of the Mortgaged Property on an annualized
basis, so long as the lease is not a cell tower lease or a solar (power) lease;


 


(b)          a
cable television lease, so long as the lessee is not a Borrower Affiliate, Key Principal or Guarantor;


 


(c)          garage
spaces or storage units leased pursuant to any Residential Lease; or


 


(d)          a
laundry lease, so long as:


 


(1)         the
lessee is not a Borrower Affiliate, Key Principal or Guarantor;


 


(2)         the
rent payable is not below-market (as determined by Lender); and


 


(3)         such
laundry lease is terminable for cause by lessor.


 


"Maturity Date"
has the meaning set forth in the Summary of Loan Terms.


 


"Maximum
Inspection Fee" has the meaning set forth in the Summary of Loan Terms.


 


"Maximum
Repair Cost" shall be the amount(s) set forth in the Required Repair Schedule, if


any.


 


"Maximum
Repair Disbursement Interval" has the meaning set forth in the Summary of Loan Terms.


 


"Maximum
Replacement Reserve Disbursement Interval" has the meaning set forth in the Summary
of Loan Terms.


 


"Minimum
Repairs Disbursement Amount" has the meaning set forth in the Summary of Loan Terms.


 


"Minimum
Replacement Reserve Disbursement Amount" has the meaning set forth in the Summary
of Loan Terms.


 


"Monthly
Debt Service Payment" has the meaning set forth in the Summary of Loan Terms.


 




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"Monthly
Replacement Reserve Deposit" has the meaning set forth in the Summary of Loan Terms.


,'


"Mortgage
Loan" means the mortgage loan made by Lender to Borrower in
the principal amount of the Note made pursuant to the Loan Agreement, evidenced by the Note and secured by the Loan Documents
that are expressly stated to be security for the Mortgage Loan.


 


"Mortgaged
Property" has the meaning set forth in the Security Instrument.


 


"Multifamily
Project" has the meaning set forth in the Summary of Loan Terms.


 


"Multifamily
Project Address" has the meaning set forth in the Summary of Loan Terms.


 


"Non-Recourse
Guaranty" means, if applicable, that certain Guaranty of Non-Recourse Obligations
of even date herewith executed by Guarantor to and for the benefit of Lender, as the same may be amended, restated, replaced, supplemented
or otherwise modified from time to time.


 


"Note"
means that certain Multifamily Note of even date herewith in the original principal amount of the stated Loan Amount made by Borrower
in favor of Lender, and all schedules, riders, allonges and addenda attached thereto, as the same may be amended, restated, replaced,
supplemented or otherwise modified from time to time.


 


"Notice"
means any notices, requests, demands or other communications.


 


"O&M
Program" has the meaning set forth in the Environmental Indemnity Agreement.


 


"OFAC"
means the United States Treasury Department, Office of Foreign Assets Control, and any successor thereto.


 


"Payment Date"
means the First Payment Date and the first day of each month thereafter until the Mortgage Loan is fully paid.


 


"Payment Guaranty"
means, if applicable, that certain Guaranty (Payment) of even date herewith executed by Guarantor to and for the benefit of Lender,
as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.


 


"Permitted Encumbrance"
has the meaning set forth in the Security Instrument.


 


"Permitted Prepayment
Date" means the last Business Day of a calendar month.


 


"Person"
means an individual, an estate, a trust, a corporation, a partnership, a limited liability company or any other organization or
entity (whether governmental or private).


 


"Personalty"
has the meaning set forth in the Security Instrument.


 


"Prepayment Lockout
Period" has the meaning set forth in the Summary of Loan Terms.


 




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"Prepayment Notice"
means the written notice that Borrower is required to provide to Lender in accordance with Section 2.03 (Lockout/Prepayment) of
the Loan Agreement in order to make a prepayment on the Mortgage Loan, which shall include, at a minimum, the Intended Prepayment
Date.


 


"Prepayment Premium"
means the amount payable by Borrower in connection with a prepayment of the Mortgage Loan, as provided in Section 2.03 (Lockout/Prepayment)
of the Loan Agreement and calculated in accordance with the Prepayment Premium Schedule.


 


"Prepayment Premium
Period End Date" or "Yield Maintenance Period End Date" has the meaning set forth in the Summary
of Loan Terms.


 


"Prepayment Premium
Period Term" or "Yield Maintenance Period Term" has the meaning set forth in the Summary of Loan
Terms.


 


"Prepayment Premium
Schedule" means that certain Schedule 4 (Prepayment Premium) to the Loan Agreement.


 


"Principal''
means any Person owning at least a twenty-five percent (25%) interest (direct or indirect) in Borrower, Guarantor or Key Principal.


 


"Prohibited Person"
means:


 


(a)          any
Person with whom Lender or Fannie Mae is prohibited from doing business pursuant to any law, rule, regulation, judicial proceeding
or administrative directive; or


 


(b)          any
Person identified on the United States Department of Housing and Urban Development's "Limited Denial of Participation, HUD
Funding Disqualifications and Voluntary Abstentions List," or on the General Services Administration's "Excluded Parties
List System,'' each of which may be amended from time to time, and any successor or replacement thereof; or


 


(c)          any
Person that is determined by Fannie Mae to pose an unacceptable credit risk due to the aggregate amount of debt of such Person
owned or held by Fannie Mae; or


 


(d)          any
Person that has caused any unsatisfactory experience of a material nature with Fannie Mae or Lender, such as a default, fraud,
intentional misrepresentation, litigation, arbitration or other similar act.


 


"Property Jurisdiction"
has the meaning set forth in the Security Instrument.


 


"Property Square
Footage" has the meaning set forth in the Summary of Loan Terms.


 


"Publicly-Held
Corporation" means a corporation, the outstanding voting stock of which is registered under Sections 12(b) or 12(g) of
the Securities Exchange Act of 1934, as amended.


 




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"Publicly-Held
Trust" means a real estate investment trust the outstanding voting shares or beneficial interests of which are registered
under Sections 12(b) or 12(g) of the Securities Exchange Act of 1934, as amended.


 


"Rents"
has the meaning set forth in the Security Instrument.


 


"Repair Threshold"
has the meaning set forth in the Summary of Loan Terms.


 


"Repairs"
means, individually and collectively, the Required Repairs, Borrower Requested Repairs, and Additional Lender Repairs.


 


"Repairs Escrow
Account" means the account established by Lender into which the Repairs Escrow Deposit is deposited to fund the Repairs.


 


"Repairs Escrow
Account Administrative Fee" has the meaning set forth in the Summary of Loan Terms.


 


"Repairs Escrow
Deposit" has the meaning set forth in the Summary of Loan Terms.


 


"Replacement Reserve
Account" means the account established by Lender into which the Replacement Reserve Deposits are deposited to fund the
Replacements.


 


"Replacement Reserve
Account Administration Fee" has the meaning set forth in the Summary of Loan Terms.


 


"Replacement Reserve
Account Interest Disbursement Frequency" has the meaning set forth in the Summary of Loan Terms.


 


"Replacement Reserve
Deposits" means the Initial Replacement Reserve Deposit, Monthly Replacement Reserve Deposits and any other deposits to
the Replacement Reserve Account required by the Loan Agreement.


 


"Replacement Threshold''
has the meaning set forth in the Summary of Loan Terms.


 


"Replacements"
means, individually and collectively, the Required Replacements, Borrower Requested Replacements and Additional Lender Replacements.


 


"Required Repair
Schedule" means that certain Schedule 6 (Required Repairs) to the Loan Agreement.


 


"Required Repairs"
means those items listed on the Required Repair Schedule.


 


"Required Replacement
Schedule" means that certain Schedule 5 (Required Replacements) to the Loan Agreement.


 


"Required Replacements"
means those items listed on the Required Replacement Schedule.


 




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"Reserve/Escrow
Account Funds" means, collectively, the funds on deposit in the Reserve/Escrow Accounts.


 


"Reserve/Escrow
Accounts" means, together, the Replacement Reserve Account and the Repairs Escrow Account.


 


"Residential Lease''
means a leasehold interest in an individual dwelling unit and shall not include any master lease.


 


"Restoration"
means restoring and repairing the Mortgaged Property to the equivalent of its original economic and physical condition or to a
condition approved by Lender following a casualty.


 


"Review Fee"
means the non-refundable fee of Three Thousand Dollars ($3,000) payable to Lender in connection with a Transfer for which Lender's
consent is required (including any assumption of the Mortgage Loan).


 


"Schedule of Interest
Rate Type Provisions" means that certain Schedule 3 (Schedule of Interest Rate Type Provisions) to the Loan Agreement.


 


"Security Instrument"
means that certain multifamily mortgage, deed to secure debt or deed of trust executed and delivered by Borrower as security for
the Mortgage Loan and encumbering the Mortgaged Property, including all riders or schedules attached thereto, as the same may be
amended, restated, replaced, supplemented or otherwise modified from time to time.


 


"Servicing Arrangement"
means any arrangement between Lender and the Loan Servicer for loss sharing or interim advancement of funds.


 


"Summary of Loan
Terms" means that certain Schedule 2 (Summary of Loan Terms) to the Loan Agreement.


 


''Taxes" has
the meaning set forth in the Security Instrument.


 


"Title Policy"
means the mortgagee's loan policy of title insurance issued in connection with the Mortgage Loan and insuring the lien of the Security
Instrument as set forth therein, as approved by Lender.


 


''Total Parking Spaces"
has the meaning set forth in the Summary of Loan Terms.


 


"Total Residential
Units" has the meaning set forth in the Summary of Loan Terms.


 


"Transfer"
means:


 


(a)          a
sale, assignment, transfer or other disposition (whether voluntary, involuntary, or by operation of law);·


 




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(b)          a
granting, pledging, creating or attachment of a lien, encumbrance or security interest (whether voluntary, involuntary, or by operation
of law);


 


(c)          an
issuance or other creation of a direct or indirect ownership interest;


 


(d)          a
withdrawal, retirement, removal or involuntary resignation of any owner or manager of a legal entity; or


 


(e)          a
merger, consolidation, dissolution or liquidation of a legal entity.


 


"Transfer Fee"
means a fee equal to one percent (1%) of the unpaid principal balance of the Mortgage Loan payable to Lender in connection with
a Transfer of the Mortgaged Property or of an ownership interest in Borrower, Guarantor or Key Principal for which Lender's consent
is required (including in connection with an assumption of the Mortgage Loan).


 


"UCC"
has the meaning set forth in the Security Instrument.


 


"UCC Collateral"
has the meaning set forth in the Security Instrument.


 


"Voidable Transfer"
means any fraudulent conveyance, preference or other voidable or recoverable payment of money or transfer of property.


 


"Yield Maintenance
Period End Date" or "Prepayment Premium Period End Date" has the meaning set forth in the Summary
of Loan Terms.


 


"Yield Maintenance
Period Term" or "Prepayment Premium Period Term" has the meaning set forth in the Summary of Loan
Terms.


 




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	 	 	/s/ SDB
	 	 	Borrower Initials


 




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SCBEDULE 2


TO MULTIFAMILY LOAN
AND SECURITY AGREEMENT


 


Summary of Loan Terms


(Interest Rate Type -
Fixed Rate)


 


I.           General
Party and Multifamily Project information


 


	Borrower	 	
        BELL BR WATERFORD CROSSING JV, LLC, a

        Delaware limited liability company

	 	 	 
	Lender	 	CWCAPITAL LLC, a Massachusetts limited liability company
	 	 	 
	Key Principal	 	
        Bell Partners Inc.

        Bell HNW Nashville Portfolio, LLC

        Blue Rock Special Opportunity + Income Fund,
        LLC

        Blue Rock Special Opportunity + Income Fund II, LLC

        Steven D. Bell

        Bluerock Real Estate, LLC

	 	 	 
	Guarantor	 	
        Bell Partners Inc.

        Bell HNW Nashville Portfolio, LLC

        Blue Rock Special Opportunity + Income Fund,
        LLC

        Blue Rock Special Opportunity + Income Fund II, LLC

	 	 	 
	Multifamily Project	 	Grove at Waterford Crossing
	 	 	 
	 	 	ADDRESSES
	 	 	 
	Borrower's General Business Address	 	
        c/o Bell Partners Inc.

        300 North Green Street, Suite 1000

        Greensboro, NC 27401

	 	 	 
	Borrower's Notice Address	 	
        c/o Bell Partners Inc.

        300 North Green Street, Suite 1000

        Greensboro, NC 27401

         

        with a copy to:

         

        c/o Bluerock Real Estate L.L.C.

        70 East Fifth Street, 9th Floor

        New York, New York 10022

        Attention :
        Jordan Ruddy

	 	 	 
	Multifamily Project Address	 	
        101 Spadeleaf Boulevard

        Hendersonville, TN 37075

	 	 	 
	Multifamily Project County	 	Sumner County


 




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	Key Principal' s General Business Address	 	
        300 North Green Street,
        Suite 1000

        Greensboro, NC 27401

	 	 	 
	Key Principal' s Notice Address	 	
        300 North Green Street,
        Suite 1000

        Greensboro, NC 27401

	 	 	 
	Guarantor' s General Business Address	 	
        300 North Green Street,
        Suite 1000

        Greensboro, NC 27401

	 	 	 
	Guarantor's Notice Address	 	
        300 North Green Street,
        Suite 1000

        Greensboro, NC 27401

	 	 	 
	Lender's General Business Address	 	
        One Charles River Place

        63 Kendrick Street

        Needham, Massachusetts
        02494

	 	 	 
	Lender's Notice Address	 	
        One Charles River Place

        63 Kendrick Street

        Needham, Massachusetts
        02494

	 	 	 
	Lender 's Payment Address	 	
        One Charles River Place

        63 Kendrick Street

        Needham, Massachusetts
        02494



 


II.          Multifamily
Project Information


 


	Property Square Footage	 	13.29 acres
	 	 	 
	Total Parking Spaces	 	450
	 	 	 
	Total Residential Units	 	252


 


III.         Mortgage
Loan Information


 


	Amortization Period	 	360 months
	 	 	 
	Amortization Type	 	
        


 ̈         Amortizing


 ̈         Full
Term Interest Only



x        Partial
Interest Only






        

	 	 	 
	Effective Date	 	As of April 4, 2012


 




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	First Payment Date	 	June 1, 2012
	 	 	 
	First Principal and Interest Payment Date	 	The first day of June, 2015.
	 	 	 
	Fixed Rate	 	3.59%
	 	 	 
	Interest Accrual Method	 	
        


 ̈
30/360 (computed on the basis of a three hundred sixty
(360) ay year consisting of twelve (12) thirty (30) day months).


or


 


x
Actual/360 (computed on the basis of a three
hundred sixty (360)
day year and the actual number of calendar days during
the applicable month, calculated by multiplying
the unpaid principal balance of the Mortgage Loan by the Interest
Rate, dividing
the product by three hundred sixty (360), and multiplying the quotient
obtained by the actual number of days elapsed in the applicable month).






	 	 	 
	Interest Only Term	 	36 months
	 	 	 
	Interest Rate	 	The Fixed Rate
	 	 	 
	Interest Rate Type	 	Fixed Rate
	 	 	 
	Last Interest Only Payment Date	 	The first day of May, 2015.
	 	 	 
	Loan Amount	 	$20,100,000.00
	 	 	 
	Loan Term	 	84 months
	 	 	 
	Loan Year	 	The period beginning on the Effective Date and ending on the last clay of April, 2013, and each successive twelve (12) month period thereafter.


 




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	Maturity Date	 	May 1, 2019, or any earlier date on which the unpaid principal balance of the Mortgage Loan becomes due and payable by acceleration or otherwise.
	 	 	 
	Monthly Debt Service Payment	 	
        For Partial Interest Only (Actual/360):

         

        (i)           $62,136.92
        for the First Payment Date;

         

        (ii)          for
        each Payment Date thereafter through and including the Last Interest Only Payment Date:

         

        (a)          $56,123.67
        if the prior month was a 28- day month;

         

        (b)          $58,128.09
        if the prior month was a 29- day month;

         

        (c)          $60,132.50
        if the prior month was a 30- day month; and

         

        (d)          $62,136.92
        if the prior month was a 31- day month; and

         

        (iii)          $91,270.81
        for the First Principal and Interest Payment Date and each Payment Date thereafter until the Mortgage Loan is fully paid.

	 	 	 
	Prepayment Lockout Period	 	0 years from the Effective Date


 


IV.          YIELD
MAINtenance/ Prepayment Premium information


 


	
        Yield Maintenance Period End Date

         

        or

         

        Prepayment Premium Period End Date
	The Last day of October, 2018.


 






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        Yield Maintenance Period Term

         

        or

         

        Prepayment Premium Period Term
	78 months 


 


V.Preserve Information


 


	Completion Period	 	Within N/A after the Effective Date or as otherwise shown on the Required Repair Schedule.
	 	 	 
	Initial Replacement Reserve Deposit	 	$0
	 	 	 
	Maximum Inspection Fee	 	$1,500.00
	 	 	 
	Maximum Repair Disbursement Interval	 	One time per calendar month
	 	 	 
	Maximum Replacement Reserve Disbursement Interval	 	One time per calendar quarter
	 	 	 
	Minimum Repairs Disbursement Amount	 	$1,500.00
	 	 	 
	Minimum Replacement Reserve Disbursement Amount	 	$1,500.00
	 	 	 
	Monthly Replacement Reserve Deposit	 	$4,200.00
	 	 	 
	Repair Threshold	 	$25,000.00
	 	 	 
	Repairs Escrow Account Administrative Fee	 	$250.00, payable one time
	 	 	 
	Repairs Escrow Deposit	 	$N/A
	 	 	 
	Replacement Reserve Account Administration Fee	 	$250.00, payable annually
	 	 	 
	Replacement Reserve Account Interest Disbursement Frequency	 	Quarterly
	 	 	 
	Replacement Threshold 	 	$25,000.00


 




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	 	 	/s/ SDB
	 	 	Borrower Initials


 




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MODIFICATIONS TO MULTIFAMILY
LOAN AND SECURITY AGREEMENT


 


ADDENDA TO SCHEDULE 2
-SCHEDULE OF LOAN TERMS


(Replacement Reserve
Deposits -Deposits Partially or Fully Waived)


 


	
        Reduced Monthly Replacement

        Reserve Deposit
	$ 0


 




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	 	 	/s/ SDB
	 	 	Borrower Initials


 




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SCHEDULE 3


TO MULTIFAMILY LOAN
AND SECURITY AGREEMENT


 


Schedule of Interest
Rate Type Provisions


(Fixed Rate)


 


		1.	Defined Terms.



 


Capitalized
terms not otherwise defined in this Schedule have the meanings given to such terms in the Definitions Schedule to the Loan Agreement.


 


		2.	Interest Accrual.



 


Except
as otherwise provided in the Loan Agreement, interest shall accrue at the Interest Rate until fully paid.


 




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	 	 	/s/ SDB
	 	 	Borrower Initials


 




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SCHEDULE 4


TO MULTIFAMILY LOAN
AND SECURITY AGREEMENT


 


Prepayment Premium Schedule


(Standard Yield Maintenance
-Fixed Rate)


 


1.          Defined
Terms.


 


All
capitalized terms used but not defined in this Prepayment Premium Schedule shall have the meanings assigned to them in the Loan
Agreement.


 


2.          Prepayment
Premium.


 


Any
Prepayment Premium payable under Section 2.03 (Lockout/Prepayment) of the Loan Agreement shall be computed as follows:


 


(a)          If
the prepayment is made at any time after the Effective Date and before the Yield Maintenance Period End Date, the Prepayment Premium
shall be the greater of:


 


(1)         one
percent (1%) of the amount of principal being prepaid; or


 


(2)         the
product obtained by multiplying:


 


(A)         the
amount of principal being prepaid,


 


by


 


(B)         the
difference obtained by subtracting from the Fixed
Rate on the Mortgage
Loan, the Yield Rate (as defined below) on the twenty-fifth
(25th) Business Day preceding (i) the Intended Prepayment
Date, or (ii) the date Lender accelerates the Mortgage
Loan or otherwise accepts a prepayment
pursuant to Section 2.03(d) (Application of Collateral)
of the Loan Agreement,


 


by


 


(C)         the
present value factor calculated using the following formula:


 


	 	1
- (1 + r)-n/12	 
	 	r	 


 


[r =         Yield Rate


 


n
=        the number of months remaining between (i)
either of the following:
(x) in the case of a voluntary prepayment, the last
day of the month in which
the prepayment is made, or (y) in any other case, the date on
which Lender accelerates the unpaid principal balance of
the Mortgage Loan and (ii) the Yield Maintenance Period End Date.


 




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For
purposes of this clause (ii), the "Yield Rate" means the yield calculated by
interpolating the yields for the immediately shorter and longer term U.S. "Treasury
constant maturities" (as reported in the Federal Reserve
Statistical Release H.15 Selected Interest Rates (the "Fed Release") under the heading "U.S. government
securities") closest to the remaining term of the
Yield Maintenance Period Term, as follows (rounded to three
(3) decimal places):


 





 


a
=         the yield for the longer U.S. Treasury constant maturity


b
=         the yield for the shorter U.S. Treasury constant maturity


x
=         the term of the longer U.S. Treasury constant maturity


y
=         the term of the shorter U.S. Treasury constant maturity


z
=         "n" (as defined in the present value factor calculation above) divided by twelve (12).


 


Notwithstanding
any provision to the contrary, if "z" equals a
term reported under the U.S. "Treasury constant
maturities" subheading in the Fed Release, the yield
for such term shall be used, and interpolation shall not be necessary. If
publication of the Fed Release is discontinued by the Federal Reserve Board, Lender shall determine
the Yield Rate from another source selected by Lender. Any determination of the Yield Rate by Lender will be binding absent manifest
error.]


 


(b)          If
the prepayment is made on or after the Yield Maintenance Period End Date but before the last calendar day of the fourth (4th) month
prior to the month in which the Maturity Date occurs, the Prepayment Premium shall be one percent (1%) of the amount of principal
being prepaid.


 


(c)          Notwithstanding
the provisions of Section 2.03 (Lockout/Prepayment) of
the Loan Agreement, no Prepayment Premium shall be payable
with respect to any prepayment made on or after the last calendar
day of the fourth (4th) month prior to
the month in which
the Maturity Date occurs.


 




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	 	 	/s/ SDB
	 	 	Borrower Initials


 




    	110



    	 



    

 


SCHEDULE 5 TO


MULTIFAMILY LOAN AND
SECURITY AGREEMENT


 


Required Replacement
Schedule


 


(Grove at Waterford Crossing
Apartments)


 


		•	Structural Repairs



		•	Siding Repairs



		•	Roofing



		•	HVAC Systems



		•	Parking Lot Resurfacing/Sealing



		•	Exterior Painting



		•	All other repair/replacement items (other than normal maintenance
items) approved in writing by Lender (in accordance with Section 13.02(a)(9)(A) of this Agreement) which are capital in nature
and similar to those items specified above (including items necessary in order to keep the Property in good order and repair and
in a good marketable condition or to prevent deterioration).



 




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	 	 	/s/ SDB
	 	 	Borrower Initials


 




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SCHEDULE 6 TO


MULTIFAMILY LOAN AND
SECURITY AGREEMENT


 


Required Repair Schedule


 


NONE


 




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	 	 	/s/ SDB
	 	 	Borrower Initials


 




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SCHEDULE 7 TO


MULTIFAMILY LOAN AND
SECURITY AGREEMENT


 


Exceptions to Representations
and Warranties Schedule


 


NONE


 




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	 	 	/s/ SDB
	 	 	Borrower Initials


 




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EXHIBIT 1


 


MODIFICATIONS TO MULTIFAMILY
LOAN AND SECURITY AGREEMENT


(Replacement Reserve
-Deposits Partially or Fully Waived)


 


The
foregoing Loan Agreement is hereby modified as follows:


 


1.          Capitalized
terms used and not specifically defined herein have the meanings given to such terms in the Loan Agreement.


 


2.          The
Definitions Schedule is hereby amended by adding the following new definition in the appropriate alphabetical order:


 


"Reduced
Monthly Replacement Reserve Deposit" has the meaning set forth in the Summary of Loan Terms.


 


3.          Section
13.01(b) (Covenants - Monthly Replacement Reserve Deposits) of the Loan Agreement is hereby amended by adding the following provisions
to the end thereof:


 


(1)         Deposit.
Partial or Full Waiver of Monthly Replacement Reserve


 


Notwithstanding
the foregoing or anything in this Loan Agreement to the
contrary, on the Effective Date, Lender has agreed to partially reduce,
defer or fully waive Borrower's obligation to make full Monthly Replacement
Reserve Deposits. Subject to the provisions of Section
13.01(b)(2) (Reinstatement of Monthly Replacement Reserve
Deposit), Borrower shall deposit the applicable Reduced
Monthly Replacement Reserve Deposit into the Replacement
Reserve Account on each Payment Date.


 


(2)         Reinstatement
of Monthly Replacement Reserve Deposit.


 


In
the event that (A) at any time during the Loan Term, Lender determines that the Mortgaged Property is not being maintained in accordance
with the requirements set forth in the Loan Documents, or (B) a default or Event of Default otherwise occurs under any of the Loan
Documents, then, upon the earlier of the (i) the date specified by Lender in written notice given to Borrower by Lender, or (ii)
the first day of the first calendar month after a default or Event of Default under the Loan Documents, Borrower shall commence
paying the full Monthly Replacement Reserve Deposits throughout the remaining Loan Term.


 




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	 	 	/s/ SDB
	 	 	Borrower Initials


 




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EXHIBIT 2


 


MODIFICATIONS TO MULTIFAMILY
LOAN AND SECURITY AGREEMENT


(Waiver of Imposition
Deposits)


 


The foregoing Loan Agreement
is hereby modified as follows:


 


		1.	Capitalized terms used and not specifically defined herein
have the meanings given to such terms in the Loan Agreement.



 


		2.	The Definitions Schedule is hereby amended by adding
the following new definition in the appropriate alphabetical order:



 


"Insurance
Impositions" means the premiums for maintaining all Required Insurance Coverage.


 


"Required
Insurance Coverage" means the insurance coverage required pursuant to Article 9 (Insurance) of the Loan Agreement and
under any other Loan Document.


 


		3.	Section 12.02 (Imposition Deposits, Truces, and Other
Charges -Covenants) of the Loan Agreement is hereby amended by adding the following provisions to the end thereof:



 


(b)          Conditional
Waiver of Collection of Imposition Deposits.


 


(1)         Notwithstanding
anything contained in this Section 12.02 (Imposition
Deposits, Truces, and Other Charges - Covenants) to the
contrary, Lender hereby agrees to waive the collection
of Imposition Deposits for Insurance
Impositions, provided, that:


 


(A)         Borrower
pays such Insurance Impositions directly to the carrier
or agent ten (10) days prior
to expiration or as necessary to prevent
the Required Insurance Coverage from lapsing due to non-payment
of premiums;


 


(B)         Borrower
provides Lender with proof of payment acceptable
to Lender of all Insurance
Impositions within five (5) days of the date such
Insurance Impositions are paid, and


 


(C)         Borrower
causes its insurance agent
to provide the Lender such certifications regarding
the Required Insurance Coverage as Lender may request from time to time evidencing that the Insurance Impositions have
been paid in a timely manner and that all of the Required Insurance
Coverage is in full
force and effect.


 


(2)         Lender
reserves the right to require Borrower to deposit the Imposition Deposits with
Lender on each Payment Date for Insurance Impositions in
accordance with this Section 12.02 (Imposition
Deposits, Truces, and Other Charges - Covenants) upon:


 




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(A)         Borrower's
failure to pay Insurance Impositions or to provide Lender
with proof of payment of
Insurance Impositions as required in this Section 12.02(b) (Conditional
Waiver of Collection of Imposition Deposits);


 


(B)         Borrower's
failure to maintain insurance coverage in accordance with the requirements of Article 9 (Insurance);


 


(C)         the
occurrence of any Transfer which is not permitted by the Loan Documents, or any Transfer which requires Lender's consent; or


 


(D)         the
occurrence of a default
under any of the other terms, conditions and covenants set forth
in this Loan Agreement or any of the other Loan Documents.


 


(4)         Except
as specifically provided in this Section 12.02(b) (Conditional Waiver of Collection
of Imposition Deposits), the provisions of Article 9 (Insurance) shall
remain in full force and effect.


 




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	 	 	/s/ SDB
	 	 	Borrower Initials


 




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