Form 8-K
8-K — INNOVATIVE INDUSTRIAL PROPERTIES INC
Accession: 0001104659-26-112568
Filed: 2026-10-01
Period: 2026-09-28
CIK: 0001677576
SIC: 6500 (REAL ESTATE)
Item: Entry into a Material Definitive Agreement
Item: Regulation FD Disclosure
Item: Financial Statements and Exhibits
Documents
8-K — tm2626535d1_8k.htm (Primary)
EX-10.1 — EXHIBIT 10.1 (tm2626535d1_ex10-1.htm)
EX-10.2 — EXHIBIT 10.2 (tm2626535d1_ex10-2.htm)
EX-10.3 — EXHIBIT 10.3 (tm2626535d1_ex10-3.htm)
EX-10.4 — EXHIBIT 10.4 (tm2626535d1_ex10-4.htm)
EX-99.1 — EXHIBIT 99.1 (tm2626535d1_ex99-1.htm)
EX-99.2 — EXHIBIT 99.2 (tm2626535d1_ex99-2.htm)
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UNITED STATES
SECURITIES AND
EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to
Section 13 or 15(d)
of the Securities
Exchange Act of 1934
Date of
Report (Date of earliest event reported): September 28, 2026
Innovative Industrial
Properties, Inc.
(Exact name
of registrant as specified in its charter)
Maryland
001-37949
81-2963381
(State
or Other Jurisdiction
of
Incorporation)
(Commission
File
No.)
(I.R.S.
Employer
Identification
No.)
1389 Center
Drive, Suite 200
Park City, Utah
84098
(Address of
principal executive offices, including zip code)
Registrant’s
telephone number, including area code: (858) 997-3332
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any
of the following provisions (see General Instruction A.2. below):
¨
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨
Pre-commencement communications pursuant
to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
¨
Pre-commencement communications pursuant to Rule 13e-4(c) under
the Exchange Act (17 CFR 240.13e-4(c))
Indicate
by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405
of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company
¨
If an emerging growth company, indicate by check mark if the
registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards
provided pursuant to Section 13(a) of the Exchange Act. ¨
Securities Registered pursuant to Section 12(b) of the Act:
Title of each class
Trading Symbol(s)
Name of each exchange on which registered
Common Stock, par value $0.001 per share
IIPR
New York Stock Exchange
Series A Preferred Stock, par value $0.001 per share
IIPR-PA
New York Stock Exchange
Item 1.01 Entry into a Material Definitive Agreement.
Sixth Amendment to Amended and Restated Mezzanine Loan Agreement
On September 28, 2026 (the “Closing Date”),
Innovative Industrial Properties, Inc. (the “Company”) through IIP Life Science Investments II LLC (“IIP Life
Science II”), a wholly owned subsidiary of IIP Operating Partnership, LP, the Company’s operating partnership, entered
into the Sixth Amendment (the “Sixth Amendment”) to Amended and Restated Mezzanine Loan and Security Agreement, dated
as of September 30, 2025 (as previously amended, the “Loan Agreement”), by and among IQHQ-Alewife Holdings, LLC, a
Delaware limited liability company (the “Borrower”), the administrative agent thereunder (the “Administrative
Agent”), IIP Life Science II, as a lender, and the existing mezzanine lender party thereto, which, together with certain agreements
entered into in connection therewith, collectively sets forth the terms and conditions of the transactions pursuant to which the parties
have agreed to:
· increase the maximum principal amount of the mezzanine loan under the Loan Agreement (the “Loan”) by $267.0 million
(the “Loan Increase”), bringing the total maximum principal amount of the Loan to $400.0 million, with IIP Life Science
II providing up to $245.0 million under a new Mezzanine Promissory Note B (“Note B”) and the existing mezzanine lender
providing up to $22.0 million under a new Mezzanine Promissory Note C (“Note C”); and
· enter into related agreements, including the Co-Lender Agreement, the Right of First Offer for Purchase or Finance
of Alewife Park Center (the “ROFO”), and an amendment to an intercreditor agreement.
The Borrower is a wholly owned subsidiary of IQHQ,
LP, a Delaware limited partnership, which is the operating partnership of IQHQ, Inc., a Maryland corporation (“IQHQ”).
On the Closing Date, IIP Life Science II funded
an initial advance under Note B (the “September Loan Advance”) in an aggregate amount of approximately $111.0 million,
the proceeds of which were used to repay in full the Borrower’s existing $85.0 million bridge loan, together with accrued interest,
fees, minimum return payment and other amounts due thereunder. A portion of the Note B and Note C Loan Increase proceeds were also used
to pay closing fees, costs and expenses, including origination and underwriting fees paid to each increasing lender. Note C was also used
to fund the payment of an extension fee to the existing mezzanine lender to extend the maturity date of the Loan Agreement from February
2027 to February 2028. Subject to the terms and conditions of the Loan Agreement, the remaining unfunded amounts under Note B and Note
C are available for debt service, and fees, costs and expenses, and the remaining unfunded amounts under Note B may, subject to satisfaction
or waiver of conditions precedent set forth in the Loan Agreement, including requirements relating to construction budgets, draw requests,
and the absence of defaults, be used to fund tenant improvement work, landlord work and campus amenity, outdoor and infrastructure work
related to certain leases by Lila Sciences, Inc. of premises at Alewife Park, a master-planned, transit-oriented life science campus located
on approximately 27 acres in West Cambridge, Massachusetts (the “Alewife Park Property”).
The Loan is secured by a pledge of the Borrower’s
limited liability company interests in IQHQ-Alewife Member, LLC and a pledge by IQHQ-Alewife Member, LLC of its limited liability company
interests in IQHQ-Alewife, LLC (the “Mortgage Borrower”), the fee owner of the Alewife Park Property. The Loan also
receives the benefit of a completion guaranty, an environmental guaranty and a guaranty of recourse obligations by IQHQ, LP.
The Loan bears interest at a rate per annum equal
to the Applicable Rate (defined below) and is calculated by multiplying the daily interest rate based on the Applicable Rate, or the default
rate if applicable, by the aggregate principal amount of the Loan and the senior mortgage loan, and then subtracting the amount of interest
actually paid by Borrower on the senior mortgage loan for the applicable period. The Applicable Rate is a per annum rate equal to the
greater of (a) 14% per annum and (b) the applicable interest rate benchmark, which is initially the one-month Term Secured Overnight Financing
Rate, plus a spread of 9.0% per annum, and which may be converted by the Administrative Agent to an alternate floating rate index or the
prime rate publicly announced by JPMorgan Chase Bank, National Association, in each case plus an adjusted spread (the “Applicable
Rate”), each as more fully described in the Loan Agreement.
The maturity date of the
Loan has been extended to February 9, 2028, pursuant to the exercise of the first extension option under the Loan Agreement, with a second
one year extension option available to the Borrower subject to the satisfaction or waiver of certain conditions set forth in the Loan
Agreement, including the extension of the maturity date of the senior mortgage loan (currently February 2027, subject to extension on
the terms and conditions therein).
The foregoing description
of the Sixth Amendment is not complete and is qualified in its entirety by reference to the full text of the Sixth Amendment, a copy of
which is filed as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated herein by reference.
Amended and Restated Mezzanine Loan and
Security Agreement
The following
description of the Loan Agreement is provided because the Loan Agreement is the underlying agreement amended by the Sixth Amendment,
and its terms are incorporated into the Sixth Amendment, to which IIP Life Science II is a party. As a result of the Sixth
Amendment, IIP Life Science II’s rights and obligations as a lender with respect to the Loan are governed by the terms of the
Loan Agreement, as amended by the Sixth Amendment. The Company did not enter into the Loan Agreement as a separate transaction. As
originally executed, the Loan Agreement amended and restated the Mezzanine Loan and Security Agreement, dated as of January 26,
2024, pursuant to which the lenders made a loan to the Borrower in the maximum principal amount of $218.0 million. Pursuant to the
Loan Agreement, that loan was bifurcated into a senior mortgage loan in the maximum principal amount of $85.0 million and the Loan,
in an original maximum principal amount of $133.0 million with an initial maturity date of February 9, 2027. The Loan Agreement was
subsequently amended by a First Amendment dated March 31, 2026, a Second Amendment dated April 16, 2026, a Third Amendment dated
April 24, 2026, a Fourth Amendment dated May 1, 2026, and a Fifth Amendment dated May 15, 2026.
The Loan Agreement, as amended by the Sixth Amendment, provides
for a mezzanine construction loan facility to fund, among other things, the construction and development of the Alewife Park Property,
including certain tenant improvement work, landlord work and campus amenity, outdoor and infrastructure work related to certain leases
by Lila Sciences, Inc. of premises at the Alewife Park Property. Interest is calculated on a 360-day year basis on the outstanding principal
balance of the Loan plus the outstanding principal balance of the senior mortgage loan, less interest actually paid on the senior mortgage
loan and is payable monthly. The Loan is nonrecourse to the Borrower, subject to customary recourse carve-outs and guaranties provided
by IQHQ, LP, including a guaranty of recourse obligations, an environmental guaranty and a completion guaranty.
The Loan Agreement, as amended by the Sixth Amendment, contains customary representations,
warranties, affirmative and negative covenants and events of default, including special purpose entity covenants, covenants relating to
construction milestones, insurance, transfers of interests, key person requirements, and compliance with the senior mortgage loan documents.
The Loan Agreement also grants the lenders a right of first negotiation with respect to new construction loan financing for the Alewife
Park Property, and as a condition to the Loan Increase, IQHQ and certain of its affiliates executed and delivered the Right of First Offer
Agreement described below.
The Loan Agreement is subject to an intercreditor
agreement with the senior lenders under the senior mortgage loan for the Alewife Park Property (collectively, the “Senior Lenders”),
which was amended in connection with the Sixth Amendment to add IIP Life Science II as a party. The intercreditor agreement, as amended,
limits, among other things, the amount of additional mezzanine debt and extensions of maturity, and subordinates certain mezzanine enforcement
rights to those of the Senior Lenders.
The foregoing
description of the Loan Agreement is not complete and is qualified in its entirety by reference to the full text of the Loan
Agreement, a copy of which is filed as Exhibit 10.2 to this Current Report on Form 8-K and is incorporated herein by reference. The
Loan Agreement is filed because its terms are incorporated into, and should be read together with, the Sixth Amendment, which is
filed as Exhibit 10.1.
Co-Lender Agreement
In connection with the Sixth
Amendment, on the Closing Date, the Administrative Agent, the existing mezzanine lender and IIP Life Science II entered into a Co-Lender
Agreement (the “Co-Lender Agreement”) establishing the relative rights, benefits, obligations and priorities of the
noteholders with respect to the Loan.
Under the Co-Lender Agreement,
the existing mezzanine lender serves as the Directing Mezzanine Lender (as defined in the Co-Lender Agreement) and is authorized to act
on behalf of the noteholders with respect to the Loan, subject to specified consent requirements. Certain key actions, including the purchase
of the Senior Loan, the replacement of the Senior Lenders, the cure of defaults under the Senior Loan, and the making or authorization
of advances under Note B, require the prior written consent of IIP Life Science II. In addition, IIP Life Science II may direct the Administrative
Agent’s exercise of certain rights under the intercreditor agreement, including cure, purchase and replacement rights, as reasonably
necessary to preserve the REIT mezzanine loan safe harbor or its qualification as a REIT.
Certain material actions
under the Co-Lender Agreement require the unanimous consent of all noteholders, including modifications to the maturity date, releases
of collateral or guarantor liability, acceleration of the Loan, exercise of remedies under the pledge agreements, amendments to the intercreditor
agreement, and approval of new or modified leases. No waiver of any condition to an advance under Note B may be granted without the prior
written consent of IIP Life Science II.
Under the Co-Lender Agreement
governing the Loan, the Company also has the option, but not the obligation, to purchase all or a portion of the existing mezzanine lender's
notes (aggregating up to approximately $155 million in maximum principal amount) at a price equal to the outstanding principal balance
plus accrued interest, fees, and other amounts, including the selling noteholder’s share of certain minimum return amounts and exit
fees whether or not then due and payable by the Borrower. Any such purchase would be subject to conditions set forth in the Co-Lender
Agreement, including limitations necessary to preserve the Company’s qualification as a REIT.
The foregoing description
of the Co-Lender Agreement is not complete and is qualified in its entirety by reference to the full text of the Co-Lender Agreement,
a copy of which is filed as Exhibit 10.3 to this Current Report on Form 8-K and is incorporated herein by reference.
Right of First Offer for Purchase or Finance of Alewife Park Center
As a condition to the Loan
Increase, on the Closing Date, IIP Life Science II entered into the ROFO with the Mortgage Borrower, IQHQ and certain of its affiliates
named therein, which grants IIP Life Science II a right of first offer to purchase, finance or refinance the Alewife Park Property.
The ROFO includes a right
of first offer in favor of IIP Life Science II to purchase the Alewife Park Property or interests in it in connection with a proposed
sale, and a right of first offer to provide financing or refinancing for the Alewife Park Property, in each case within a specified period.
Pursuant to the Loan
Agreement, IIP Life Science II’s right of first offer does not become effective until the total amount funded under Note B
equals or exceeds $155,000,000, including the payoff of the Borrower’s indebtedness at closing, advances to fund the fees,
costs and expenses of IIP Life Science II and interest as it accrues (the “ROFO
Effective Date”). Until then, the mezzanine lenders’ right of first negotiation for new construction loan
financing for the Alewife Park Property, as granted under the Loan Agreement, remains in effect. From and after the ROFO Effective
Date, that right of first negotiation in the Loan Agreement is subordinated to IIP Life Science II’s ROFO rights. Any exercise
of the ROFO, and any sale, financing, refinancing or transfer of the Alewife Park Property, remains subject to any lender consent or
approval required under the Loan Agreement.
The foregoing description
of the ROFO is not complete and is qualified in its entirety by reference to the full text of the ROFO, a copy of which is filed as Exhibit
10.4 to this Current Report on Form 8-K and is incorporated herein by reference.
Item 7.01 Regulation FD
Disclosure.
On October 1, 2026,
the Company issued a press release announcing the closing of its mezzanine loan investment in connection with the Sixth Amendment. A copy
of the press release is furnished as Exhibit 99.1 hereto.
On October 1, 2026, the Company
posted an investor presentation on its website located at www.innovativeindustrialproperties.com. A copy of the investor presentation
is attached hereto as Exhibit 99.2 and is incorporated by reference herein.
The information in this Item
7.01, including Exhibits 99.1 and 99.2 furnished herewith, shall not be deemed “filed” for purposes of Section 18 of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities of that section, nor
shall it be deemed incorporated by reference in any filing under the Securities Act of 1933, as amended, or the Exchange Act, whether
made before or after the date hereof, regardless of any general incorporation language in such filing.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
Exhibit
Description of Exhibit
10.1*
Sixth Amendment to Amended and Restated Mezzanine Loan and Security Agreement, dated as of September 28, 2026, by and among IQHQ-Alewife Holdings, LLC, as borrower, NREF OP IV REIT SUB, LLC, as administrative agent, IIP Life Science Investments II LLC, as a lender, and NREF OP IV SUBHOLDCO, LLC, as a lender.
10.2*
Amended and Restated Mezzanine Loan and Security Agreement, dated as of September 30, 2025, by and among IQHQ-Alewife Holdings, LLC, as borrower, NREF OP IV REIT SUB, LLC, as administrative agent, NREF OP IV SUBHOLDCO, LLC, as the initial lender, and the lenders from time to time party thereto (as amended through the Fifth Amendment to Amended and Restated Mezzanine Loan and Security Agreement, dated as of May 15, 2026).
10.3*
Co-Lender Agreement, dated as of September 28, 2026, by and among NREF OP IV REIT SUB, LLC, as administrative agent, NREF OP IV SUBHOLDCO, LLC, as the Initial A-1 Noteholder and Initial A-3 Noteholder, and IIP Life Science Investments II LLC, as the Initial A-2 Noteholder.
10.4*
Side Letter Regarding Right of First Offer for Alewife Park, dated as of September 28, 2026, by and among IIP Life Science Investments II LLC, IQHQ, LP, IQHQ, Inc., IQHQ Holdings, LP, IQHQ-Alewife, LLC, IQHQ-Alewife Member, LLC, and IQHQ-Alewife Holdings, LLC.
99.1
Press release dated October 1, 2026.
99.2
Innovative Industrial Properties, Inc. investor presentation, dated
October 1, 2026.
104
Cover Page Interactive Data File (embedded within the XBRL document).
*Certain schedules and exhibits omitted pursuant to Item
601(a)(5) of Regulation S-K. The Company agrees to furnish supplementally a copy of any omitted schedule or exhibit to the SEC upon request.
Forward-Looking Statements
This Current Report on Form 8-K contains statements
that the Company believes to be “forward-looking statements” within the meaning of the safe harbor provisions of the Private
Securities Litigation Reform Act of 1995. All statements other than historical facts are forward-looking statements. When used in this
report, words such as the Company “expects,” “intends,” “plans,” “estimates,” “anticipates,”
“believes” or “should” or the negative thereof or similar terminology are generally intended to identify forward-looking
statements, and they include, but are not limited to, statements regarding the expected benefits or impact of the transactions described
in this report, including the Sixth Amendment, the Co-Lender Agreement, and the ROFO; the Company’s ability to fund future advances
under Note B and anticipated funding sources; the anticipated use of proceeds from the Loan Increase; the Company’s ability to realize
the anticipated benefits of the ROFO; and the Borrower’s ability to satisfy its obligations under the Loan. These forward-looking
statements are based on current expectations and are subject to risks and uncertainties that could cause actual results to differ materially
from those expressed in, or implied by, such statements. Factors that could cause results to differ from those projected or assumed in
any forward-looking statement include, but are not limited to, the risk factors discussed in the Company’s most recent Annual Report
on Form 10-K for the year ended December 31, 2025, as updated by the Company’s subsequent reports filed with the SEC. Investors
should not place undue reliance upon forward-looking statements. The Company disclaims any obligation to update or revise any forward-looking
statements, whether as a result of new information, future events or otherwise.
SIGNATURES
Pursuant to the requirements of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Date: October 1, 2026
INNOVATIVE INDUSTRIAL PROPERTIES, INC.
By:
/s/ David Smith
Name:
David Smith
Title:
Chief Financial Officer
EX-10.1 — EXHIBIT 10.1
EX-10.1
Filename: tm2626535d1_ex10-1.htm · Sequence: 2
Exhibit 10.1
Execution
Version
SIXTH AMENDMENT TO AMENDED AND RESTATED
MEZZANINE LOAN AND SECURITY AGREEMENT
This
SIXTH AMENDMENT TO AMENDED AND RESTATED MEZZANINE LOAN AND SECURITY AGREEMENT (the “Loan Increase Amendment”
or this “Amendment”) is executed as of September 28, 2026 by IQHQ-ALEWIFE HOLDINGS, LLC,
a Delaware limited liability company (“Borrower”), and NREF OP IV REIT SUB, LLC, a Delaware limited liability
company (together with its successors and assigns, “Administrative Agent”), and the undersigned Lenders.
RECITALS:
A. Borrower,
Administrative Agent and NREF OP IV SUBHOLDCO, LLC, a Delaware limited liability company, entered into that certain Amended and Restated
Mezzanine Loan and Security Agreement dated as of September 30, 2025, that certain First Amendment to Amended and Restated Mezzanine
Loan and Security Agreement dated as of March 31, 2026, that certain Second Amendment to Amended and Restated Mezzanine Loan and
Security Agreement dated as of April 16, 2026, that certain Third Amendment to Amended and Restated Mezzanine Loan and Security Agreement
dated as of April 24, 2026, that certain Fourth Amendment to Amended and Restated Mezzanine Loan and Security Agreement dated as
of May 1, 2026, and that certain Fifth Amendment to Amended and Restated Mezzanine Loan and Security Agreement dated as of May 15,
2026 (as so amended, and as the same may be amended, supplemented or otherwise modified from time to time, the “Agreement”),
whereby Lenders made a loan (the “Initial Loan”) to Borrower in the maximum amount of ONE HUNDRED THIRTY-THREE
MILLION and 00/100 Dollars ($133,000,000.00) (plus an additional B Loan described below) for the purposes as set forth in the Agreement.
The parties acknowledge and agree that the signature page to each of the Amendments to the Agreement contains a scrivener’s
error in that each signature page erroneously lists NREF OP IV REIT SUB, LLC, a Delaware limited liability company, as the Lender.
The Initial Lender under the Agreement is NREF OP IV SUBHOLDCO, LLC, a Delaware limited liability company. By its execution of this Amendment,
NREF OP IV SUBHOLDCO, LLC, a Delaware limited liability company, the Initial Lender under the Agreement, hereby ratifies and affirms each
Amendment to the Agreement. Capitalized terms used but not otherwise defined herein shall have the respective meanings given thereto
in the Agreement.
B. In
connection with the Initial Loan, the Guarantor executed and delivered the Guaranties (as defined in the Agreement).
C. Borrower,
Administrative Agent and the Lenders acknowledge and agree that the B Loan, as advanced pursuant to and in accordance with the terms set
forth in the First Amendment to Amended and Restated Mezzanine Loan and Security Agreement dated as of March 31, 2026, has been paid
off in full.
D. Borrower
entered into that certain Bridge Loan and Security Agreement dated as of May 22, 2026 (as amended from time to time, the “Bridge
Loan Agreement”), by and among Borrower, NREF OP IV SUBHOLDCO, LLC, a Delaware limited liability company, and NEW WAVE MEZZ
IV, LLC, a Delaware limited liability company (the “Bridge Loan Lenders”), and NREF OP IV REIT SUB, LLC, a Delaware
limited liability company, as Administrative Agent, pursuant to which the Bridge Loan Lenders made a loan to Borrower in the maximum principal
sum of Eighty-Five Million and No/100ths ($85,000,000.00) (the “Bridge Loan”).
E. The
Borrower has requested that the Lenders increase the Loan by the maximum principal amount of $267,000,000 (the “Loan Increase”).
The Lenders are willing to increase the Loan pursuant to, and in accordance with, the terms of this Amendment. Concurrently herewith,
Borrower is executing and delivering to Administrative Agent on behalf of the Lenders (1) that certain Mezzanine Promissory Note
B in the maximum principal amount of $245,000,000.00 made by Borrower in favor of IIP LIFE SCIENCE INVESTMENTS II LLC, a Delaware limited
liability company, and (2) that certain Mezzanine Promissory Note C in the maximum principal amount of $22,000,000.00 made by Borrower
in favor of NREF OP IV SUBHOLDCO, LLC, a Delaware limited liability company.
NOW, THEREFORE, for good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, Borrower, Administrative Agent and the Lenders agree as follows:
1. New
Defined Terms. The following new definitions are hereby added to Section 1.1 of the Agreement in appropriate alphabetical
order, to read in their entirety as follows:
“IIP” means
IIP Life Science Investments II LLC, Innovative Industrial Properties, Inc. and any of their direct or indirect subsidiaries.
“IIP Lender”
means (a) the Loan Increase Note B Lender, (b) IIP, and (c) any other Person that holds, directly or by participation,
all or any part of Note B or that is IIP, together with their successors and assigns.
“IIP Lender Obligations”
means all Debt and all other obligations, indebtedness and liabilities of Borrower under the Agreement and the other Loan Documents that
are evidenced by, or arise in respect of, Note B, provided, however, that, notwithstanding the foregoing or anything in the Loan Documents
to the contrary, the IIP Lender Obligations shall not include, and expressly exclude, any obligations, indebtedness or liabilities under
or in respect of the Carry Guaranty, all of which shall constitute Non-IIP Lender Obligations, as more particularly set forth in Section 19(f) of
the Loan Increase Amendment.
“Lila”
means Lila Sciences, Inc., a Delaware corporation.
“Lila Lease”
means, collectively, (i) that certain Lease dated as of September 19, 2025 by and between Mortgage Borrower, as Landlord, and
Lila, as Tenant, for premises located within the three story building located at 5 Alewife Park, Cambridge Massachusetts as amended by
that certain First Amendment to Lease, dated as of August 11, 2026, as the same may be further amended, restated, supplemented or
otherwise modified from time to time, and (ii) that certain Amended and Restated Lease, dated as of August ___, 2026, by and
between Mortgage Borrower, as landlord, and Lila, as tenant, for premises located within the four-story building located at 1 Alewife
Park, Cambridge, Massachusetts, as the same may be further amended, restated, supplemented or otherwise modified from time to time.
SIXTH AMENDMENT TO MEZZANINE LOAN AGREEMENT
-2-
“Loan Increase”
means Two Hundred Sixty-Seven Million and 00/100 Dollars ($267,000,000.00).
“Loan Increase Amendment”
means the Sixth Amendment to Amended and Restated Mezzanine Loan and Security Agreement dated as of September __, 2026 by and among
the NREF OP IV SUBHOLDCO, LLC, as the Initial Lender and the Loan Increase Note C Lender, the Loan Increase Note B Lender, the Agent and
the Borrower.
“Loan Increase Closing
Fees” is defined in Section 3(d) of the Loan Increase Amendment.
“Loan Increase Effective
Date” means the date on which all of the conditions set forth in Section 4 of the Loan Increase Amendment are satisfied
or waived in writing by the Agent and the Lenders.
“Loan
Increase Lenders” means, collectively, the Loan Increase Note B Lender and the Loan Increase Note C Lender.
“Loan Increase MRP
Amount” means the product of (i) 1.175 and (ii) the Loan Increase.
“Loan
Increase Note B Lender” means IIP LIFE SCIENCE INVESTMENTS II LLC, a Delaware limited liability company, and its successors
and assigns.
“Loan
Increase Note C Lender” means NREF OP IV SUBHOLDCO, LLC, a Delaware limited liability company, and its successors and
assigns.
“Maturity Extension
Debt Yield (Aggregate)” means, solely for purposes of Section 2.5(b)(vi), the quotient (expressed as a percentage)
obtained by dividing (a) Underwritten NOI as of December 31, 2027 by (b) the sum of (i) the outstanding principal
amount of the Loan as of December 31, 2027 and (ii) the outstanding principal amount of the Mortgage Loan as of December 31,
2027. For purposes of this definition, Underwritten NOI shall be determined based on the rent roll as of December 31, 2027, and Underwritten
Operating Income shall include the annualized contractual base rent payable under each Lease then in effect with a Tenant in occupancy
of its premises, notwithstanding clause (iii) of the definition of “Operating Income” and any rent abatement or free
rent period under such Lease. Administrative Agent’s calculation of the Maturity Extension Debt Yield (Aggregate), and all component
calculations, shall be conclusive and binding on Borrower absent manifest error. For the avoidance of doubt, the Maturity Extension Debt
Yield (Aggregate) is a separate and distinct measure from the Debt Yield (Aggregate), is used solely for purposes of Section 2.5(b)(vi),
and neither this definition nor the Loan Increase Amendment modifies the definition of Debt Yield (Aggregate) or its application under
any other provision of the Agreement or any other Loan Document.
“Mezzanine Loan Safe
Harbor” means the safe harbor for mezzanine loans set forth in Revenue Procedure 2003-65 (and any successor, supplementary or
amplifying guidance, including Revenue Procedure 2011-16, as modified by Revenue Procedure 2014-51).
“Non-IIP Lender”
means any Lender that is not an IIP Lender.
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“Non-IIP Lender Obligations”
means all Debt and all other obligations, indebtedness and liabilities of Borrower under the Agreement and the other Loan Documents, other
than the IIP Lender Obligations.
“Note A”
means that certain Mezzanine Promissory Note dated as of September 30, 2025 in the maximum amount of $133,000,000 made by Borrower
in favor of NREF OP IV SUBHOLDCO, LLC, a Delaware limited liability company, as the same may be amended, replaced, supplemented or otherwise
modified from time to time.
“Note B”
means that certain Mezzanine Promissory Note B dated as of the Loan Increase Effective Date in the maximum principal amount of $245,000,000.00
made by Borrower in favor of the Loan Increase Note B Lender, as the same may be amended, replaced, supplemented or otherwise modified
from time to time.
“Note C”
means that certain Mezzanine Promissory Note C dated as of the Loan Increase Effective Date in the maximum principal amount of $22,000,000.00
made by Borrower in favor of the Loan Increase Note C Lender, as the same may be amended, replaced, supplemented or otherwise modified
from time to time.
2. Revised
Defined Terms. The following definitions in the Agreement are hereby amended as follows:
“Applicable Rate”
means the greater of (A) fourteen percent (14%) per annum, and (B)(i) the SOFR Rate for so long as the Loan is a SOFR Rate Loan,
(ii) the Alternate Rate for so long as the Loan is an Alternate Rate Loan or (iii) the Prime Rate for so long as the Loan is
a Prime Rate Loan.
“Architect of Record”
is hereby amended by adding the following new clause at the end thereof: “, and (iv) with respect to the TI Component, each
Architect engaged by (or on behalf of) Mortgage Borrower with respect to the TI Component, as identified on Schedule VII, together
with any successor, replacement or additional Architect engaged by (or on behalf of) Mortgage Borrower with respect thereto, in each case,
subject to the requirements set forth in Section 5.8.12.”
“Budget”
is hereby amended by deleting the last sentence thereof in its entirety and inserting in lieu thereof the following: “The Budget
prepared by, or on behalf of, Borrower for the construction and development of the Required Improvements described in clause (iii) of
the definition thereof, as the same may be adjusted due to changes or reallocations made in accordance with Section 2.24 or
Section 5.8.3 of this Agreement, which Budget has been approved by Administrative Agent and the Lenders as of the Loan Increase
Effective Date, attached to the Loan Increase Amendment and inserted in lieu of Exhibit D to the Agreement pursuant to Section 3
of the Loan Increase Amendment.”
“Component”
means, individually and/or collectively, as the context may require, (i) the Conversion Component, (ii) the Construction Component
and (iii) the TI Component, which Components collectively constitute the entirety of the Required Improvements.
“Component Substantial
Completion” is hereby amended by adding the following new clause at the end thereof: “, or (d) with respect to the
TI Component, the occurrence of each of the conditions set forth in clauses (a)(i), (a)(iii) and (a)(iv) above with respect
to the Required Improvements comprising the TI Component, together with the issuance of a permanent or temporary certificate of occupancy
(or the equivalent customarily issued by the applicable Governmental Authorities) for the premises demised under the Lila Lease to the
extent required by applicable Legal Requirements; provided, however, that the dates by which the foregoing conditions must be satisfied
with respect to any portion of the TI Component shall be extended on a day-for-day basis to the extent of any delays attributable to Tenant
Change Requests, Tenant Delays, or events of Force Majeure (each as defined in the applicable Lila Lease), so that completion deadlines
under this Agreement align with the delivery requirements under the applicable Lila Lease.”
SIXTH AMENDMENT TO MEZZANINE LOAN AGREEMENT
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“Debt”
is hereby amended to delete all references to “B Note”.
“Default Rate”
means, with respect to the Loan, a rate per annum equal to the lesser of (a) the Applicable Rate plus five percent (5%) per annum
and (b) the Maximum Legal Rate, all of which shall be payable currently.
“Exit Fee”
means an amount equal to 1.0% of the amount of the Loan that is being or is required to be repaid, due and payable from time to time upon
the earlier to occur of repayment or prepayment of any portion of the Principal Amount in accordance with the terms of this Agreement
or when due (including on the Maturity Date).
“Extension LC”
is hereby amended by deleting the last sentence thereof in its entirety and inserting in lieu thereof the following: “Each Extension
LC shall be in an amount that, if applied to the outstanding principal balance of the Loan on the first day of the Extension Term with
respect to which it is delivered pursuant to (i) Section 2.5(b)(iv), would result in satisfaction of the applicable As-Stabilized
Loan-to-Value Ratio (Aggregate), As-Stabilized Loan-to-Value Ratio (Mortgage Only), As-Is Loan-to-Value Ratio (Aggregate) and/or As-Is
Loan-to-Value Ratio (Mortgage Only) requirement for the Extension Term as to which it is delivered and (ii) Section 2.5(b)(vi),
would result in satisfaction of (A) with respect to the First Extension Option, the applicable Debt-Service Coverage Ratio (Aggregate)
and Debt-Service Coverage Ratio (Mortgage Only) requirements and (B) with respect to the Second Extension Option, the Maturity Extension
Debt Yield (Aggregate) requirement, in each case for the Extension Term as to which it is delivered, as applicable.” All references
in Section 2.5(e) and Section 2.5(f) of the Agreement to the conditions specified in Section 2.5(b)(vi) shall
be deemed to refer to such conditions as amended pursuant to Section 3(h) of this Amendment.
“First Extended Maturity Date”
means February 9, 2028.
“General Contractor”
is hereby amended by adding the following new clause at the end thereof: “and (III), with respect to the TI Component, each general
contractor engaged by (or on behalf of) Mortgage Borrower with respect to the TI Component, as identified on Schedule III, and
any successor or additional general contractor engaged by (or on behalf of) Mortgage Borrower with respect to such portion of the Project,
subject to the requirements of Section 5.8.”
“General Contractor
Agreement” is hereby amended by adding the following new clause at the end thereof: “; and (C) with respect to the
TI Component, (i) each agreement between Mortgage Borrower and a General Contractor with respect to the TI Component, as identified
on Schedule III, together with (a) any GMP Agreement between Mortgage Borrower and such General Contractor, (b) any other
documentation executed by and between Mortgage Borrower and such General Contractor evidencing or relating to the guaranteed maximum price
thereunder and (c) any guaranty of such General Contractor’s obligations under such General Contractor Agreement provided by
any Person, and (ii) any general contractor or other agreement which may be entered into by (or on behalf of) Mortgage Borrower with
any successor or additional or other General Contractor with respect to the TI Component, subject to the requirements of Section 5.8,
as each of the foregoing in (i) and (ii) may be amended, replaced, supplemented or otherwise modified from time to time in accordance
with the terms hereof.”
SIXTH AMENDMENT TO MEZZANINE LOAN AGREEMENT
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“Key
Persons” means Jamie Graff, John Bonanno, Jonathan Praw, Preston Puryear, Matt McGraner, and Ryan McDonald; and in the event
that fewer than two such Key Persons are officers and/or executive chairmen of IQHQ Inc. or IQHQ Inc. ceases to directly or indirectly
Control Borrower, such Pre-Approved Officers who are reasonably approved by Administrative Agent that are officers and/or executive
chairmen of IQHQ Inc. or such other Affiliate of Borrower that directly or indirectly Controls Borrower.
“Loan”
is hereby amended to mean loans made under the Agreement.
“Loan Amount”
is hereby amended to delete all references to the “B Note”.
“Loan Documents”
is hereby amended to delete all references to the “B Note”.
“Maximum Legal Rate”
is hereby amended to delete all references to the “B Note”.
“Maximum Loan Amount”
means Four Hundred Million and 00/100 Dollars ($400,000,000.00).
“MRP Amount”
means the product of (i) 1.30 and (ii) $133,000,000 plus the Maximum Mortgage Loan Amount.
“Note”
means Note A, Note B, Note C and any additional promissory note(s) made by Borrower in favor of a Lender, as the same may be amended,
replaced, supplemented or otherwise modified from time to time.
“Permitted
Indebtedness” is hereby amended to delete all references to the “B Note”.
“Plans and Specifications”
is hereby amended by deleting the last sentence thereof in its entirety and inserting in lieu thereof the following: “The term ‘Plans
and Specifications’ shall include (a) the plans and specifications for the construction of the Required Improvements described
in clauses (ii) and (iii) of the definition thereof (including, without limitation, any plans and specifications relating to
Building Four and Building Five to the extent the work shown thereon constitutes Required Improvements), as the same may be amended, supplemented
or otherwise modified pursuant to the terms of Section 5.8.6, and (b) all Change Orders applicable thereto, whether or
not the approval of Administrative Agent is required therefor; provided, however, that the inclusion of any Change Order in the Plans
and Specifications shall not constitute the approval thereof by Administrative Agent and shall not limit or waive any requirement for
the approval of, or the delivery to Administrative Agent of, such Change Order under Section 5.8.6, Section 5.8.7
or Section 5.8.12 of the Agreement.”
SIXTH AMENDMENT TO MEZZANINE LOAN AGREEMENT
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“Required Improvements”
means (i) the following work on the Land in substantial accordance with the Plans and Specifications, the Zoning Documents, the Special
Permit and all applicable Legal Requirements: (A) the conversion and renovation of Building One together with the Building One Amenities
(the “Building One Component”), (B) the conversion and renovation of Building Two together with the Building Two
Amenities (the “Building Two Component”; and together with the Building One Component, the “Conversion Component”),
(C) the construction to a warm shell of Building Three totaling approximately 191,815 net rentable square feet of office and laboratory
space (the “Construction Component”), (ii) the additional work with respect to Building Four, Building Five, a
parking garage and other site improvements more particularly described on Schedule XX, in each case in accordance with all applicable
Legal Requirements, and (iii) the tenant improvement work, landlord work and campus amenity, outdoor and infrastructure work identified
on the Initial Budget attached hereto and made a part hereof as Exhibit D which are to be constructed on the Land by Mortgage
Borrower in substantial accordance with (a) the Plans and Specifications relating thereto as approved by Administrative Agent and
the Lenders (which plans and specifications shall constitute Plans and Specifications for all purposes under the Agreement and the Loan
Documents), (b) the Zoning Documents, the Special Permit and all applicable Legal Requirements, and (c) the Lila Lease (collectively,
the items in clause (iii), the “TI Component”).
The
terms “B Loan,” “B Note,” “B
Note Exit Fee,” “B Note Maturity Date,” “B Note Origination Fee,” “B
Note SOFR Rate,” and “B Note Spread” are hereby deleted in their entirety.
3. Additional
Terms of the Loan Increase. Notwithstanding anything contained in the Agreement and the Loan Documents to the contrary, the parties
acknowledge and agree to the following terms and conditions:
a. It
shall be a condition to the Loan Increase and the Loan Increase Effective Date that Borrower use a portion of the proceeds of the Loan
to fully and indefeasibly repay (and obtain the release of) on such date the Bridge Loan, and Lenders hereby consent to the use of the
proceeds of the Loan for this purpose. On the Loan Increase Effective Date, and subject to the terms and conditions of the Agreement and
the Loan Documents, the Loan Increase Note B Lender will Advance from the Loan under Note B an amount requested by Borrower and certified
by Borrower that such amount is sufficient to fully repay the Bridge Loan (the “September Loan Advance”), including,
without limitation, interest, costs and charges (including, without limitation, the MRP Amount (as defined in the Bridge Loan Agreement))
as more particularly set forth in the Bridge Loan Agreement, all as more fully described in the payoff letter. Borrower shall use these
funds solely for the payoff of the Bridge Loan pursuant to and in accordance with the Bridge Loan Agreement and shall, within five (5) Business
Days after the Loan Increase Effective Date, deliver to Administrative Agent evidence reasonably satisfactory to Administrative Agent
and the Lenders that the Bridge Loan has been paid in full and that all liens, pledges, security interests and other encumbrances securing
the Bridge Loan have been released and terminated effective upon such repayment.
SIXTH AMENDMENT TO MEZZANINE LOAN AGREEMENT
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b. An
Origination Fee equal to 0.50% of the Loan Increase shall be due and payable by Borrower to Administrative Agent, for the account of the
Loan Increase Lenders pro rata based upon the face principal amount of Note B and Note C, as applicable, compared to the total Loan Increase,
upon execution of this Amendment, and shall be fully earned on such date.
c. An
Underwriting Fee equal to 0.50% of the Loan Increase shall be due and payable by Borrower to Administrative Agent, for the account of
the Loan Increase Lenders pro rata based upon the face principal amount of Note B and Note C, as applicable, compared to the total Loan
Increase, upon execution of this Amendment, and shall be fully earned on such date.
d. Section 2.1.4
of the Agreement is hereby amended by adding the following text at the end thereof:
“In addition, the Loan Increase
may be used (I) to make one or more equity contributions to Mortgage Borrower, which Mortgage Borrower shall use to fund the Required
Improvements set forth in clause (iii) of the definition thereof, as set forth in the Budget, the Loan Documents and the Mortgage
Loan Documents, (II) to pay the Initial Lender the Extension Fee for the First Extension Option, and (III) to pay the fees,
costs and expenses of Borrower, including the Origination Fee, the Underwriting Fee, and the fees, costs and expenses of Administrative
Agent and Lenders (including reasonable attorneys’ fees) (collectively, the “Loan Increase Closing Fees”). Notwithstanding
anything in the Agreement to the contrary, (a) the Extension Fee shall be funded as a draw from Note C; and (b) the Loan Increase
Closing Fees due to each Loan Increase Lender shall be funded as draws against the applicable Loan Increase Lenders’ Note pro rata
based on their funding of the Loan Increase, including the fees, costs and expenses of counsel and other professionals retained by Administrative
Agent or any Lender that are included in the Loan Increase Closing Fees, except that the Origination Fee and the Underwriting Fee shall
be funded as draws against such Lender’s Note rather than pro rata. For the avoidance of doubt, the reasonable fees, costs and expenses
of counsel or other professionals retained by any Lender in connection with the Loan after the Loan Increase Effective Date shall be paid
by Borrower or, at such Lender’s election, as an Advance against such Lender’s Note.”
e. A
new Section 2.1.6 of the Agreement is hereby inserted as if fully set forth therein:
“2.1.6 Additional
Interest (Loan Increase). If the sum (such sum, the “Required Loan Increase Payments”) of (i) the total amount
of regular monthly interest calculated based on the Applicable Rate accrued on the principal amount of the Loan Increase (specifically
excluding (A) interest on any protective advances or other similar amounts funded by Administrative Agent, or any Lender and added
to the principal amount of the Loan, (B) interest paid on the Loan Increase at the Default Rate in excess of interest paid on the
Loan Increase at the Applicable Rate, (C) any Late Payment Charge in connection with the Loan, (D) any processing, underwriting,
structuring or other fees paid to Administrative Agent or Lenders in connection with the Loan, and (E) the Exit Fee payable in connection
with the Loan), from the Loan Increase Effective Date to the earlier of (x) the Maturity Date (which, as of the Loan Increase Effective
Date, is the First Extended Maturity Date, and as the same may be further extended pursuant to Section 2.5(b)) and (y) the
date on which Borrower prepays the Debt in full (such earlier date, the “Applicable Date”), plus (ii) the Origination
Fee paid to the Loan Increase Lenders in connection with the Loan Increase, plus (iii) any Extension Fee (not including the Extension
Fee for the First Extension Option paid on the Loan Increase Effective Date) paid in connection with the Loan Increase, plus (iv) the
Loan Increase, shall be less than the Loan Increase MRP Amount, then, on the Applicable Date, Borrower shall pay to Administrative Agent,
for the account of the Loan Increase Lenders pro rata based upon the face principal amount of Note B and Note C, as additional interest
under the Loan, the amount of the difference between the Loan Increase MRP Amount and the Required Loan Increase Payments (such difference,
the “Loan Increase Additional Interest”). It is acknowledged and agreed that (1) the Loan Increase Additional
Interest shall be deemed earned on the Loan Increase Effective Date, (2) the Loan Increase Additional Interest shall constitute Debt
hereunder and under the other Loan Documents for all purposes, and (3) the Loan Increase Additional Interest shall be due and payable
on the Applicable Date (and, for the avoidance of doubt, shall not be payable before the Applicable Date, including upon any partial prepayment
of the Debt (including, without limitation, any Extension Prepayment)).”
SIXTH AMENDMENT TO MEZZANINE LOAN AGREEMENT
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f. The
parties acknowledge and agree that, effective as of the Loan Increase Effective Date, Borrower has exercised its First Extension Option
under Section 2.5(b) of the Agreement to extend the Initial Maturity Date to the First Extended Maturity Date, and Agent
and Lenders acknowledge and agree that all conditions to such exercise contained in Section 2.5(b) of the Agreement have
been satisfied or waived, provided that Borrower shall pay the Extension Fee for the exercise of the First Extension Option to Initial
Lender on or before the Loan Increase Effective Date. Notwithstanding the foregoing, on or before February 28, 2027, Borrower shall
be required to fund the Tax Reserve Amount under Section 16.1(a)(iii) of the Agreement, the Insurance Reserve Amount
under Section 16.2(a)(iii) of the Agreement, the Debt Service Reserve Amount under Section 16.3(a)(iii) of
the Agreement, and the Operating Expense Reserve Amount under Section 16.4(a)(iii) of the Agreement, provided, however,
that (1) Administrative Agent’s good faith estimate of Operating Income which will be available to Borrower during the First
Extension Option may be applied to offset the amounts required to be deposited for the Tax Reserve Amount, the Insurance Reserve Amount,
and the Operating Expense Reserve Amount; and (2) if, on February 28, 2027, there are sufficient unfunded Loan proceeds to pay
Debt Service for the Loan and the Mortgage Loan due and owing during the First Extension Term, Borrower shall not be required to fund
the Debt Service Reserve Amount (provided, however, that such Loan proceeds shall thereafter be reserved for the payment of Debt Service).
Borrower shall retain its right to exercise its Second Extension Option pursuant to and in accordance with the provisions and requirements
of the Agreement, including, without limitation, the provisions of Section 2.5(b), as amended hereby.
g. Section 2.5(b) of
the Agreement is hereby amended as follows: (1) the requirement to deliver a First Extension Notice and the timing requirements applicable
thereto are waived, and Borrower’s exercise of the First Extension Option pursuant to Section 3(f) above shall
be irrevocable; (2) clause (ii)(B) is hereby amended to require, with respect to the Second Extension Option, evidence satisfactory
to Administrative Agent that Completion of the Conversion Component and the Construction Component, and Component Substantial Completion
of the TI Component, shall have occurred, in each case subject to Borrower’s right to contest Liens in accordance with Section 7.3
of the Agreement; (3) clause (viii) is hereby amended to provide that the Extension Fee payable in connection with the Second
Extension Option shall be paid to Administrative Agent for the account of the Lenders pro rata based upon the outstanding principal amount
of each Note; and (4) the provisos set forth in Section 3(f) above permitting Administrative Agent’s good
faith estimate of Operating Income, and sufficient unfunded Loan proceeds, to be applied in lieu of funding the applicable Reserve Amounts
shall apply to the Second Extension Option in the same manner as they apply to the First Extension Option.
SIXTH AMENDMENT TO MEZZANINE LOAN AGREEMENT
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h. Section 2.5(b) of
the Agreement is hereby amended, solely with respect to the Second Extension Option, as follows: (1) in clause (iv), the maximum
As-Is Loan-to-Value Ratio (Aggregate) applicable to the Second Extension Option is increased from sixty percent (60%) to seventy-five
percent (75%); and (2) clause (vi) is amended and restated to read as follows: “(vi) the Maturity Extension Debt
Yield (Aggregate) shall be not less than six and three-quarters percent (6.75%); provided that, if such requirement is not satisfied,
Borrower may satisfy the same by (x) prepaying a portion of the Loan, or causing Mortgage Borrower to prepay a portion of the Mortgage
Loan, in an amount sufficient to cause such requirement to be satisfied (any such prepayment constituting an Extension Prepayment), or
(y) causing Mortgage Borrower to deliver to Administrative Agent an Extension LC or Extension Collateral in an amount that, if applied
to the outstanding principal balance of the Loan, would cause such requirement to be satisfied.”
i. Section 2.5(d) of
the Agreement is hereby amended to provide that, the First Extension Option having been exercised as of the Loan Increase Effective Date,
no Unfunded Loan Amount shall be required to be Advanced into the Loan Advance Reserve Account on the Initial Maturity Date, and the undrawn
portion of the Loan Increase shall remain available to be Advanced in accordance with the Budget and the applicable conditions precedent
set forth in this Amendment and the Agreement.
j. Section 2.22(e) of
the Agreement is hereby amended by the addition of the following text as the last sentence. “Notwithstanding anything to the contrary
in the Agreement, (1) Advances to pay interest on the Mortgage Loan shall be funded, pro rata, by the Loan Increase Lenders based
on their pro rata loan amounts, (2) Advances to pay interest on Note B shall be funded from Note B; and (3) Advances to pay
interest on Note A and Note C shall be funded from Note C.”
k. Subject
to Section 2.22(e), and except for protective advances, all Advances of the proceeds of the Loan (other than the September Loan
Advance and the Loan Increase Closing Fees) shall be made upon satisfaction of the terms and conditions precedent set forth in the Agreement
including Section 2.30 of the Agreement, and, if applicable (and in addition to the conditions set forth in Section 2.30),
upon satisfaction of the conditions set forth in Section 2.31, and Section 2.32, except to the extent that Administrative
Agent may elect to waive any such conditions precedent in its sole and absolute discretion; provided, however, that any waiver of a condition
precedent to an Advance to be made by Loan Increase Note B Lender shall require the consent of the Loan Increase Note B Lender.
SIXTH AMENDMENT TO MEZZANINE LOAN AGREEMENT
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l. Section 5.9
of the Agreement is hereby amended by inserting the words “and/or executive chairmen” after the words “shall remain
as officers”, such that at all times during the term of the Loan at least two (2) of the Key Persons shall remain as officers
and/or executive chairmen of IQHQ Inc. or such other Affiliate of Borrower that directly or indirectly Controls Borrower in compliance
with the Agreement.
m. Section 12.8
of the Agreement is hereby amended by inserting in clause (x) of the first sentence the words “the Loan Increase Note B Lender
or” after the word “appoint.”
n. Section 17.1(a)(xxiii) of
the Agreement is hereby deleted in its entirety and replaced with “Reserved.”
o. Lender
Expenses. Notwithstanding anything in the Agreement or the other Loan Documents to the contrary, (i) the actual and reasonable
out-of-pocket fees, costs and expenses of counsel and other professionals retained by Administrative Agent and the Lenders in connection
with the Loan, the Loan Increase, this Amendment and the transactions contemplated hereby that are due and payable on or as of the Loan
Increase Effective Date shall constitute Loan Increase Closing Fees, shall be paid by Borrower on the Loan Increase Effective Date and
shall be funded as draws against the Loan Increase Lenders’ Notes pro rata based upon their respective funding of the Loan Increase,
and not solely against the Note of the Lender whose counsel or other professional incurred the same, and (ii) from and after the
Loan Increase Effective Date, the actual and reasonable out-of-pocket fees, costs and expenses of counsel or other professionals retained
by any Lender in connection with the Loan shall be paid by Borrower or, at such Lender’s election, as an Advance against such Lender’s
Note.
p. Notwithstanding
the satisfaction or waiver of the condition set forth in Section 2.5(b)(ii)(A) or anything in this Amendment or the Agreement
to the contrary, Borrower shall cause Component Substantial Completion of the Conversion Component (including the Building Two Amenities)
to occur on or before December 31, 2026, which date shall be extended on a day-by-day basis to the extent of any delays attributable
to Tenant Change Requests, Tenant Delays, or events of Force Majeure (each as defined in the applicable Lila Lease), and the failure to
do so shall constitute an Event of Default.
q. The
following exhibits and schedules attached to the Agreement are hereby deleted in their entirety and the replacement exhibits and schedules
attached hereto and made a part hereof shall be inserted in lieu thereof:
i. Exhibit D: Initial Budget
ii. Schedule II: Commitment Amounts
iii. Schedule III: List of Construction Agreements and Construction Permits
iv. Schedule IV: List of Sub-Contractors
v. Schedule VII: List of Design Professionals
vi. Schedule XII: Organization Chart
vii. Schedule XIV: Unpaid Amounts
SIXTH AMENDMENT TO MEZZANINE LOAN AGREEMENT
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All references, representations,
warranties, covenants and other provisions in the Agreement and the other Loan Documents that refer to, incorporate or are based upon
any of the exhibits or schedules being replaced pursuant to Section 3(q) of this Amendment shall be deemed to refer to,
incorporate and be based upon such replacement exhibits and schedules, as applicable, as of the later of (i) the Loan Increase Effective
Date or (ii) the date of any Advance, as the context may require.
r. From
and after the date hereof, IIP Life Science Investments II LLC and its successors and assigns is a “Lender” and the “Loan
Increase Note B Lender” under the Agreement.
s. Construction
Agreements; Consents and Related Deliverables. Within thirty (30) days after the Loan Increase Effective Date, Borrower shall deliver,
or cause Mortgage Borrower to deliver, to Administrative Agent a true, correct and complete copy of each Construction Agreement, and each
amendment, change order, supplement or other modification thereto, entered into after September 30, 2025, to the extent not previously
delivered to Administrative Agent. With respect to each Construction Agreement entered into prior to the Loan Increase Effective Date
(to the extent not previously delivered) and each Construction Agreement entered into after the Loan Increase Effective Date, Borrower
shall use, and shall cause Mortgage Borrower to use, commercially reasonable efforts to obtain and deliver to Administrative Agent, as
soon as reasonably practicable following the execution thereof, in each case to the extent reasonably requested by Administrative Agent
or otherwise required under the Loan Documents or the Mortgage Loan Documents: (i) the Construction Permits and Plans and Specifications
relating to the work thereunder; (ii) Consent of General Contractor, and any other consent to collateral assignment, collateral
assignment or subordination of lien rights from the applicable contractor, subcontractor, architect, engineer, design professional or
other Work Provider requested by Administrative Agent; (iii) lien waivers in the forms required under the Agreement; (iv) evidence
of payment and performance bonds, subguard coverage or other completion assurance required under the Loan Documents; and (v) a reliance
letter in favor of Administrative Agent and the Lenders from each applicable Design Professional and third-party consultant. Notwithstanding
anything in the Agreement to the contrary, the deliveries described in this clause with respect to any Construction Agreement shall in
all events be made on or prior to the date of any Draw Request for an Advance (other than the September Loan Advance, the Advance
of the Loan Increase Closing Fees, and any Advances to cover Debt Service under the Loan or the Mortgage Loan) that includes, in whole
or in part, funds to be applied to any payment to or for the benefit of the applicable contractor, subcontractor, architect, engineer,
design professional or other Work Provider, or to any work performed or to be performed under such Construction Agreement, and satisfaction
of this requirement shall be a condition precedent to such Advance. The requirements of this clause apply to each such Person engaged
with respect to the Project at any time, whether before or after the Loan Increase Effective Date, and neither the making of the September Loan
Advance nor Administrative Agent’s election not to require any such deliverable as a condition to the Loan Increase Effective Date
shall constitute a waiver of the right to require the same as a condition to any subsequent Advance. For the avoidance of doubt, the obligations
of Borrower under this Section 3(s) supplement, and do not limit, replace or reduce, Borrower’s obligations under
Section 5.4.1 (Contingent Assignment of Subcontracts), Section 5.8.11 (General Contractor Agreement) and Section 5.8.12
(Changes in Material Construction Agreements) of the Agreement, and nothing in this Section 3(s) shall be construed to
relieve Borrower of any obligation to deliver any consent, collateral assignment or subordination prior to, or concurrently with, the
execution of the applicable agreement to the extent required thereunder.
SIXTH AMENDMENT TO MEZZANINE LOAN AGREEMENT
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t. Leases;
Subordinations and Estoppels. Borrower shall deliver, or cause Mortgage Borrower to deliver, to Administrative Agent a true, correct
and complete copy of each Lease (and each amendment, restatement, supplement or other modification of any Lease) hereafter entered into
by Mortgage Borrower with respect to Building 2, Building 3, Building 4 or any other portion of the Property, including any Lease hereafter
entered into between Mortgage Borrower and Lila (including any Lease with respect to Building 3), promptly following the execution thereof.
Once approved in accordance with the Loan Documents, any Lease hereafter entered into between Mortgage Borrower and Lila (including any
Lease with respect to Building 3) shall, upon execution, constitute a Lila Lease for all purposes under the Agreement and the Loan Documents.
With respect to each such Lease, Borrower shall use, and shall cause Mortgage Borrower to use, commercially reasonable efforts to obtain
and deliver to Administrative Agent, as soon as reasonably practicable following the Loan Increase Effective Date or, if later, the execution
of such Lease, (i) a subordination, non-disturbance and attornment agreement executed by the applicable tenant, substantially in
the form attached to the Agreement as Exhibit C or in such other commercially reasonable form as the parties thereto may agree,
and (ii) a tenant estoppel certificate from the applicable tenant in the form required or contemplated by such Lease or in such other
commercially reasonable form as Administrative Agent may reasonably request. Notwithstanding anything in the Agreement to the contrary,
the deliveries described in clauses (i) and (ii) above with respect to any Lease shall in all events be made on or prior to
the date of any Draw Request for an Advance (other than the September Loan Advance, the Advance of the Loan Increase Closing Fees,
and any Advances to cover Debt Service under the Loan or the Mortgage Loan) that includes, in whole or in part, funds to be applied to
any tenant improvement allowance, landlord work or other payment to or for the benefit of the tenant under such Lease, or to any work
or improvements within the premises demised thereunder, and satisfaction of this requirement shall be a condition precedent to such Advance.
u. Deemed
Approval; Lila Lease and Major Lease Approvals. Notwithstanding Section 5.1.25(a) or Section 19.31 of
the Agreement or anything in this Amendment to the contrary: (i) Administrative Agent shall deliver to each Lender a copy of each
request for approval or consent submitted by Borrower or Mortgage Borrower under Section 5.1.25 of the Agreement (including
any request relating to any Lila Lease or any other Major Lease, or any amendment, modification, termination or assignment thereof), together
with all materials delivered therewith, within five (5) Business Days after Administrative Agent’s receipt thereof; and (ii) Section 19.31
of the Agreement is hereby amended by (1) changing the reference to “ten (10) Business Days” in the 10th
line of said Section 19.31 to “fifteen (15) Business Days,” and the reference to “ten (10) Business
Day period” in the 19th line of said Section 19.31 to “fifteen (15) Business Day period”; and
(2) changing the reference to “five (5) Business Days” in the third to the last line of said Section 19.31
to “ten (10) Business Days,” and the reference to “five (5) Business Day period” in the last line of
said Section 19.31 to “ten (10) Business Day period.”
SIXTH AMENDMENT TO MEZZANINE LOAN AGREEMENT
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v. Loan
Increase Note B Lender Right of First Offer. Concurrently herewith, the Loan Increase Note B Lender or an affiliate of the Loan Increase
Note B Lender is entering into an agreement with Mortgage Borrower (the “ROFO Agreement”) granting the Loan
Increase Note B Lender or such affiliate a right to purchase, finance or refinance all or any portion of the Property upon the terms and
conditions set forth in such agreement, and, subject to the terms and conditions of this Section 3(v), Borrower hereby consents
to, and acknowledges and agrees to the execution, delivery and performance of, such agreement. From and after the date on which the Loan
Increase Note B Lender has fully advanced One Hundred Fifty-Five Million and 00/100 Dollars ($155,000,000.00) under Note B (the “ROFO
Effective Date”), the Lenders’ Right of First Negotiation under Section 19.32 of the Agreement shall be
subordinated to the rights granted to the Loan Increase Note B Lender or its affiliates under the ROFO Agreement. For purposes of determining
whether the ROFO Effective Date has occurred, the aggregate amount funded by the Loan Increase Note B Lender under Note B shall include,
without limitation, (i) the September Loan Advance, (ii) all Loan Increase Closing Fees funded as draws against Note B
(including the Origination Fee, the Underwriting Fee and all fees, costs and expenses of counsel and other professionals), (iii) all
Advances funded from Note B to pay interest or other Debt Service under the Loan or the Mortgage Loan, (iv) all protective advances
and other similar amounts funded by the Loan Increase Note B Lender and added to the principal amount of Note B, and (v) all other
Advances and other amounts funded or advanced under or against Note B, in each case whether or not disbursed to or for the account of
Borrower or Mortgage Borrower. Prior to the ROFO Effective Date, the rights granted to the Loan Increase Note B Lender or its affiliates
under the ROFO Agreement shall not be effective, and Section 19.32 of the Agreement shall remain in full force and effect
in accordance with its terms. It is acknowledged and agreed that, prior to the ROFO Effective Date, except as expressly provided in this
Section 3(v) or in the Loan Documents to the contrary, any Lender may negotiate, offer, bid for, or execute any sale,
finance, refinance or transfer of the Property at any time. Any exercise by the Loan Increase Note B Lender or its affiliate of any rights
under the ROFO Agreement and/or any sale, finance, refinance or transfer of the Property or any portion thereof by Borrower or Mortgage
Borrower shall be subject to the prior consent or approval of the Lenders (including the Initial Lender and the Loan Increase Note C Lender
but not Administrative Agent in such party’s capacity as Administrative Agent) to the extent such consent or approval is required
under the Loan Documents, and no waiver or impairment of any such consent or approval rights shall be deemed to have occurred by reason
of this Amendment, the Loan Increase, the amendment to the Intercreditor Agreement executed concurrently herewith and/or the ROFO Agreement.
w. Notwithstanding
anything to the contrary in the Loan Documents, the parties acknowledge and agree that amounts advanced by Loan Increase Note B Lender
pursuant to a draw request on the Loan Increase Effective Date may be funded prior to the completion of the Administrative Agent’s
and/or Loan Increase Note B Lender’s construction consultant’s final review and may thereafter be allocated or reallocated
among the various Project costs, line items, requirements and other uses contemplated by the Loan Documents, as reasonably determined
by the Administrative Agent and/or Loan Increase Note B Lender following such review. The funding of any such amounts shall not constitute
the Administrative Agent’s or Loan Increase Note B Lender’s approval or acceptance of any particular cost, work item, completion
status or allocation. To the extent the Administrative Agent or Loan Increase Note B Lender or its construction consultant subsequently
determines that any Project cost, requirement or line item has not been satisfactorily completed, funded or otherwise resolved, Administrative
Agent and/or Loan Increase Note B Lender may allocate or reallocate the various Project costs, requirements and line items in the Loan
Increase Note B Lender’s sole discretion, and in the event following such allocation or reallocation there remains a deficiency
in any such Project cost, requirement or line item, Borrower shall promptly fund to the Project from equity such amounts as are reasonably
necessary to cure any such deficiency.
SIXTH AMENDMENT TO MEZZANINE LOAN AGREEMENT
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4. Conditions
to Amendment. This Amendment and the agreements of Lenders described herein will not be effective unless and until all of the following
have occurred or have been satisfied:
a. Borrower
shall have delivered to Agent and Lenders a payoff letter from the Bridge Loan Lenders in form and substance satisfactory to Agent and
the Lenders.
b. Administrative
Agent and the Lenders shall have received a fully executed copy of this Amendment.
c. Borrower
shall have paid Administrative Agent, for the account of the Loan Increase Lenders, the Origination Fee and Underwriting Fee due and payable
under Sections 3(b) and 3(c) above.
d. Borrower
shall have paid the Administrative Agent, for the account of the Initial Lender, the Extension Fee for the First Extension Option.
e. The
consent to this Amendment by the Guarantor by execution of the rider to this Amendment and the reaffirmation by Guarantor of the guarantees.
f. The
payment by Borrower of Administrative Agent’s and the Lenders’ fees and expenses arising in connection with the preparation
and delivery of this Amendment and any documents, agreements or instruments referred to herein, including without limitation, the reasonable
fees and expenses of the consultants, attorneys or other professionals retained by Lenders or Administrative Agent in connection with
the negotiation and preparation of this Amendment, all of which shall constitute Loan Increase Closing Fees and shall be funded pro rata
in accordance with Section 3(d) above.
g. All
representations and warranties of the Borrower contained in the Loan Increase Amendment, the Agreement and the Loan Documents shall be
true and correct in all material respects at and as of the date hereof as though then made, except for such representations and warranties
as by their terms expressly speak as of an earlier date, in which case such representations and warranties shall be true and correct in
all material respects as of such earlier date, and except to the extent that such representation or warranty contains a materiality or
similar qualifier, in which event, such representation or warranty that is so qualified shall be true and correct.
h. No
Default or Event of Default shall have occurred and be continuing under the Loan Documents.
i. Administrative
Agent and the Lenders shall have received such other amendments to Loan Documents and other documents, instruments and agreements as they
shall reasonably request in connection with the Loan Increase, including, without limitation, (i) fully executed amendments to the
Pledge Agreements, the Guaranties and the Environmental Indemnity Agreement, (ii) the final Budget, Plans and Specifications, construction
contracts, permits and schedules relating to the Required Improvements, (iii) all required organizational documents, and (iv) evidence
of any required UCC filings, title endorsements and other perfection deliverables. Notwithstanding the foregoing, (i) within fifteen
(15) days after the Loan Increase Effective Date, Borrower shall deliver to Administrative Agent such legal opinions as may be reasonably
required by Administrative Agent in connection with the Loan Increase, including, without limitation, opinions that under New York law,
the Loan Documents (as amended by the amendments entered into on the Loan Increase Effective Date) are enforceable against Borrower, Guarantor
and Pledgors, that the Lender’s interest in the Collateral has been perfected, that the Borrower, Guarantor and each Pledgor have
been duly formed, are in good standing under DE law, and have duly authorized and executed Note B, Note C, and the amendments to the Loan
Documents executed on the Loan Effective Date, and such other matters as may be reasonably requested in connection therewith; and (ii) within
thirty (30) days after the Loan Increase Effective Date, Borrower shall deliver, or cause Mortgage Borrower to deliver, to Administrative
Agent a replacement or supplemental Interest Rate Cap Agreement reflecting the Loan, as increased by the Loan Increase, in form and substance
reasonably acceptable to Administrative Agent and the Lenders.
SIXTH AMENDMENT TO MEZZANINE LOAN AGREEMENT
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j. Approval
by Mortgage Lenders of the Loan Increase and this Amendment, and receipt by Administrative Agent and the Lenders of evidence satisfactory
to them that any required amendment to the Intercreditor Agreement has been duly executed and is in full force and effect, together with
such other matters as the Administrative Agent and the Lenders require.
k. The
Loan Increase Note B Lender shall have received a satisfactory right of first offer agreement from Mortgage Borrower giving the Loan Increase
Note B Lender a right to purchase, finance or refinance all or any portion of the Property on the terms and conditions of such agreement.
Notwithstanding the foregoing, the parties acknowledge and agree that any sale, finance or refinance of the Property shall be subject
to the approval of the Initial Lender and the Loan Increase Note C Lender in accordance with the terms and provisions contained in the
Agreement.
5. Representations
and Warranties. Borrower hereby represents and warrants to the Administrative Agent and Lenders as follows:
a. All
representations and warranties set forth in the Agreement and the other Loan Documents are true, correct and complete in all material
respects as of the date of this Amendment as though then made, except for such representations and warranties as by their terms expressly
speak as of an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of
such earlier date, and except to the extent that such representation or warranty contains a materiality or similar qualifier, in which
event, such representation or warranty that is so qualified shall be true and correct.
b. Each
of the Required Improvements described in clauses (i) and (ii) of the definition thereof (as amended in the Loan Increase Amendment)
has been completed in accordance with the Loan Documents, all Plans and Specifications, Zoning Documents, the Special Permit and all applicable
Legal Requirements.
SIXTH AMENDMENT TO MEZZANINE LOAN AGREEMENT
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c. No
event has occurred and is continuing, and no condition exists, which constitutes or which after notice or lapse of time, or both, would
constitute a Default or Event of Default under the Loan Documents.
d. The
Lila Lease is in full force and effect and the Lila Lease represents the entire agreement between the parties as to Building 1 and Building
5. Lila has not sent Mortgage Borrower written notice of any default under the Lila Lease, and, to the best of Borrower’s knowledge,
no event has occurred which, with notice or lapse of time or both, would result in a default by Mortgage Borrower under the Lila Lease.
To Borrower’s actual knowledge, no event has occurred which authorizes or, with the giving of notice or the passage of time or both,
will authorize Lila to terminate the Lila Lease. To Borrower’s actual knowledge, as of the date hereof, Lila and Mortgage Borrower
have complied with all of their respective obligations under the Lila Lease.
e. The
execution and delivery by Borrower of this Amendment and all other documents, instruments, and agreements executed in connection with
this Amendment and the performance by it of the transactions herein contemplated (i) are and will be within its powers, (ii) have
been authorized by all necessary organizational action, and (iii) are not and will not be in contravention of any order of any court
or other agency of government, of law or any other indenture, agreement or undertaking to which Borrower is a party or by which the property
of Borrower is bound, or be in conflict with, result in a breach of, or constitute (with due notice and/or lapse of time) a default under
any such indenture, agreement or undertaking or result in the imposition of any lien, charge or encumbrance of any nature on any of the
properties of Borrower.
f. This
Amendment and all other documents, instruments and agreements executed in connection with this Amendment and any assignment, instrument,
document, or agreement executed and delivered in connection herewith, are valid, binding and enforceable in accordance with its respective
terms.
6. Reaffirmation.
Except as expressly modified hereby, all of the terms, covenants and conditions of the Loan Documents remain unmodified and in full force
and effect and are hereby ratified and confirmed by Borrower. Any waiver of the requirements of the Loan with respect to the specific
matters set forth herein does not constitute a waiver of such requirements for future matters.
7. Conforming
Agreements. It is the intention of the parties to this Amendment that this Amendment shall be deemed to form a part of the Loan Documents,
and it shall constitute a Loan Document as referred to herein and therein. Any breach of the representations, warranties, covenants and
agreements set forth in this Amendment shall constitute an Event of Default to the extent provided in the Agreement. Except as otherwise
specifically provided in this Amendment, the rights, powers, authorities, remedies, interests and benefits conferred upon Lenders by and
as provided in this Amendment are intended to supplement, and be in addition to (and shall not in any way replace, supersede, amend, limit
or restrict), the rights, powers, authorities, remedies, interests, and benefits conferred by the Loan Documents.
SIXTH AMENDMENT TO MEZZANINE LOAN AGREEMENT
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8. Borrower
and Guarantor Release.
a. In
consideration of the accommodations being made available by Lenders to or for the benefit of Borrower and Guarantor under this Amendment,
Borrower and Guarantors, for themselves and their respective agents, employees, members, successors and assigns, do hereby unconditionally
remise, release and discharge Lenders and their employees, agents, representatives, officers, and their respective successors and assigns
(the “Released Parties”) of and from any and all claims, counterclaims, demands, actions and causes of action
of any nature whatsoever, whether at law or in equity, arising out of or relating to any of the Loan Documents, any acts or omissions
of any Released Party in connection therewith, the transactions described in this Amendment, which any of them, now has or hereafter can
or may have against any of the Released Parties, from the beginning of the world to the date hereof.
b. Borrower
and Guarantor hereby waive the provisions of any applicable laws restricting the release of claims which the releasing parties do not
know or suspect to exist at the time of release, which, if known, would have materially affected the decision to agree to these releases.
In this connection, Borrower and Guarantor hereby agree, represent and warrant to the Lenders that they realize and acknowledge that factual
matters now unknown may have given or may hereafter give rise to causes of action, claims, demands, debts, controversies, damages, costs,
losses and expenses which are presently unknown, unanticipated and unsuspected, and Borrower and Guarantor further agree, represent and
warrant that the releases provided herein have been negotiated and agreed upon in light of that realization and that Borrower and Guarantor
nevertheless hereby intend to release, discharge and acquit the parties set forth hereinabove from any such unknown causes of action,
claims, demands, debts, controversies, damages, costs, losses and expenses which are in any manner set forth in or related to the Loan
or the Loan Increase and all dealings in connection therewith. In making this waiver, Borrower and Guarantor understand and acknowledge
that they may hereafter discover facts in addition to or different from those that are currently known or believed to be true with respect
to the subject matter of this release, but agree that they have taken that possibility into account in accepting the Loan Increase and
that, notwithstanding the discovery or existence of any such additional or different facts, as to which Borrower and Guarantor expressly
assume the risk, they fully, finally and forever settle and release any and all claims released hereunder, known or unknown, suspected
or unsuspected, which now exist, or heretofore existed, and without regard to the subsequent discovery or existence of such additional
or different facts.
c. Borrower
and Guarantor hereby acknowledge that they have not relied upon any representation of any kind made by the Lenders or any affiliate of
the Lenders in making the foregoing release.
d. Borrower
and Guarantor represent and warrant to the Lenders that they have not heretofore assigned or transferred, or purported to assign or to
transfer, to any person or entity any matter released by such party hereunder or any portion thereof or interest therein, and each Borrower
and Guarantor agrees to indemnify, protect, defend and hold each of the Lenders harmless from and against any and all claims based on
or arising out of any such assignment or transfer or purported assignment or transfer by such party.
9. Ratification
and Reaffirmation. Except as modified by this Amendment, each of the Loan Documents and the respective obligations, indebtedness
and liabilities of the Borrower and Guarantors thereunder are hereby ratified, reaffirmed and confirmed by the Borrower and Guarantors.
Each Guarantor hereby acknowledges and consents to the foregoing amendments to the Agreement and all of the other Loan Documents. Each
Guarantor hereby ratifies, confirms, reaffirms and covenants that the Guaranty is validly existing and binding against Guarantors. Each
Guarantor hereby reaffirms and restates, as of the date hereof, all covenants, representations and warranties set forth in the Guaranty.
SIXTH AMENDMENT TO MEZZANINE LOAN AGREEMENT
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10. Obligations
Remain in Full Force and Effect. The obligations of Borrower under the Loan Documents shall, except as expressly modified herein,
remain in full force and effect, and shall not be released, impaired, diminished or in any other way modified or amended as a result of
the execution and delivery of this Amendment or by the agreements and undertakings of the parties contained herein. Borrower hereby ratifies
and confirms each of the Loan Documents to which it is a party and the rights granted thereunder in favor of Lenders.
11. No
Waiver. Except as otherwise specifically provided in this Amendment, Lenders’ execution of or performance under this Amendment
does not (and it shall not be construed so as to) waive, relinquish, restrict or limit in any way any of the rights, remedies, claims
or causes of action that Lenders have or may have under or with respect to the Loan Documents, or applicable law (all of which are expressly
reserved) regardless of whether any of the foregoing relate to or arise out of acts, omissions, events or transactions occurring before
or after the date hereof. Except as otherwise specifically provided in this Amendment, Lenders hereby expressly reserve all rights to
take any and all actions, and exercise any and all remedies, authorized under any Loan Document or at law or in equity as a result of
or with respect to the occurrence and continuance of any defaults, violations or events of default that have or may have heretofore occurred
thereunder and any defaults, violations or events of default that may hereafter occur or exist thereunder. Nothing contained herein,
and no action taken by Lenders pursuant hereto or as provided herein, shall be deemed to be a waiver of any of such defaults, violations
or events of default.
12. Governing
Law. This Amendment shall be governed in accordance with the terms and provisions of Section 19.3 of the Agreement.
13. Counterparts.
This Amendment may be executed and delivered (including by DocuSign or similar electronic transmission) in any number of counterparts,
each of which shall be an original, but all of which shall, together, constitute one and the same instrument.
14. Entire
Agreement. This Amendment together with the Agreement and the other Loan Documents contains all of the agreements of the parties hereto
with respect to the matters contained herein and therein and all prior or contemporaneous agreements or understandings, oral or written,
pertaining to any such matters are merged herein and shall not be effective for any purpose.
15. Successors
and Assigns. This Amendment shall inure to the benefit of and shall be binding on the parties hereto and their respective successors
and permitted assigns.
16. Accommodations.
These amendments are one-time accommodations to Borrower and shall not be construed to grant any further accommodations to Borrower or
any other amendments or modifications or constitute a course of conduct in granting future accommodations, consents or approvals.
SIXTH AMENDMENT TO MEZZANINE LOAN AGREEMENT
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17. Exculpation.
Article XVIII of the Agreement is hereby incorporated herein by reference.
18. Tax
Representation. Borrower represents, warrants and covenants that (i) each of Borrower, IQHQ-Alewife Member, LLC (the “Issuer”)
and IQHQ-ALEWIFE, LLC (the “Mortgage Borrower”) is, and shall remain at all times while the Loan is outstanding, either
a partnership or an entity disregarded as separate from its owner for U.S. federal income tax purposes, and none has made or shall make
an election under Treasury Regulations Section 301.7701-3 to be treated as an association taxable as a corporation; and (ii) the
Mortgage Borrower is the owner of the Property.
19. REIT
Mezzanine Loan Safe Harbor. The parties acknowledge that one or more Lenders is, or is directly or indirectly owned by, a REIT, and
that each such Lender intends that the Loan qualify for the Mezzanine Loan Safe Harbor. In furtherance thereof, and notwithstanding anything
in the Agreement or the other Loan Documents to the contrary:
a. The
parties acknowledge and agree that (i) the Loan is nonrecourse to Borrower except for the recourse obligations expressly set forth
in the Loan Documents including, without limitation, the Guaranties and the Environmental Indemnity; provided, however, that, as more
particularly set forth in Section 19(f), the Carry Guaranty does not guarantee, apply to, secure or otherwise constitute or
create recourse for any IIP Lender Obligations, and guarantees solely the Non-IIP Lender Obligations; (ii) the Loan is secured solely
by the Collateral described in the Pledge Agreements, consisting of the pledged limited liability company interests and the proceeds thereof,
and, solely with respect to the Non-IIP Lender Obligations, the Hypothec (it being acknowledged and agreed, as more particularly set forth
in Section 19(e), that the Hypothec does not secure the IIP Lender Obligations and that no IIP Lender has, holds or is entitled
to the benefit of the Hypothec or any security interest or other lien in respect of the property charged by the Hypothec); (iii) Administrative
Agent, for the benefit of the Lenders, holds a first priority security interest in the Collateral pledged under the Pledge Agreements;
and (iv) in no event shall Administrative Agent or any Lender have, hold or be granted any mortgage, deed of trust, hypothec, lien
on, security interest in, or direct or indirect ownership interest in, the Property (other than, solely in the case of the Non-IIP Lenders,
the property charged pursuant to the Hypothec) or any other real property owned by the Mortgage Borrower, other than indirectly through
succession to the pledged limited liability company interests upon an exercise of remedies against the Collateral in accordance with Section 20.
b. Borrower
represents and warrants that, as of the Loan Increase Effective Date, (i) at least eighty-five percent (85%) of the value of the
assets of the Mortgage Borrower consists of real property (within the meaning of Section 856 of the Code), and (ii) the fair
market value of the Property (as reduced by the amount of any senior liens or liabilities, including the Mortgage Loan) is at least equal
to the outstanding principal amount of the Loan (as increased by the Loan Increase). Borrower shall, upon request, deliver to Administrative
Agent such information and certifications as any Lender reasonably requires to confirm continued compliance with the foregoing. Borrower
covenants that on each “testing date” (as such term is defined in the Mezzanine Loan Safe Harbor) while the Loan is outstanding,
at least eighty-five percent (85%) of the value of the assets of the Mortgage Borrower shall consist of real property (within the meaning
of Section 856 of the Code).
SIXTH AMENDMENT TO MEZZANINE LOAN AGREEMENT
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c. Upon
any sale, conveyance, transfer or other disposition of all or any portion of the Property (or any direct or indirect interest therein)
by the Mortgage Borrower, other than as expressly permitted under the Loan Documents, the entire Debt shall, at Administrative Agent’s
election, become immediately due and payable.
d. Interest
and all other amounts payable under the Loan Documents constitute solely compensation for the use or forbearance of money, and no such
amount is determined, in whole or in part, by reference to the income or profits of any Person (other than, if and to the extent applicable,
an amount based on a fixed percentage of receipts or sales).
e. Notwithstanding
anything to the contrary in the Hypothec (including, for greater certainty, the provisions of section 8.7 (Paramountcy) thereof),
the Agreement or any other Loan Document, the parties acknowledge and agree that: (i) the “Secured Obligations” secured
by the Hypothec, and the obligations for the payment and performance of which the Administrative Agent (in its capacity as hypothecary
representative under the Hypothec) holds and may enforce the Hypothec, exclude, and the Hypothec does not secure, any IIP Lender Obligations,
including any Debt or other obligations evidenced by or arising in respect of Note B; (ii) the Hypothec secures solely the Non-IIP
Lender Obligations and is held by the Administrative Agent (in its capacity as hypothecary representative under the Hypothec) solely for
the benefit of the Non-IIP Lenders; (iii) no IIP Lender shall have, hold, or be entitled to the benefit of the Hypothec, or any security
interest or other lien under or in respect of the Hypothec or the property charged thereby, and no proceeds of such charged property shall
be applied to or on account of any IIP Lender Obligations; and (iv) promptly following the Loan Increase Effective Date, the Administrative
Agent and the Lenders shall, and Borrower shall cause Mortgage Borrower, as grantor under the Hypothec to execute, deliver and record
such amendments to the Hypothec and such other instruments as any IIP Lender may reasonably request to evidence and give effect to the
foregoing. For the avoidance of doubt, this Section 19(e) (i) shall control over any conflicting provision of the
Hypothec (including the definition of “Secured Obligations” therein), the Agreement and the other Loan Documents as to the
Hypothec, and (ii) does not constitute a novation of any obligation secured by the Hypothec or a replacement of the Hypothec, and
it does not affect the validity, rank or opposability of the Hypothec with respect to the Non-IIP Lender Obligations, all of which are
hereby expressly reserved.
f. Notwithstanding
anything to the contrary in the Carry Guaranty, the Agreement or any other Loan Document, the parties acknowledge and agree that: (i) the
Carry Guaranty guarantees solely the Non-IIP Lender Obligations and does not guarantee, apply to, secure or otherwise constitute or create
recourse for any IIP Lender Obligations, including any Debt or other obligations evidenced by or arising in respect of Note B; (ii) no
IIP Lender is or shall be a beneficiary of, or entitled to enforce, direct or receive any payment or other benefit under, the Carry Guaranty,
and no amount paid or payable under the Carry Guaranty shall be applied to or on account of any IIP Lender Obligations; (iii) nothing
in the Carry Guaranty shall be construed to render any IIP Lender Obligation recourse to Borrower or Guarantor; and (iv) nothing
in this Section 19(f) shall reduce, impair, release or otherwise affect the obligations of Guarantor under the Carry
Guaranty with respect to the Non-IIP Lender Obligations, all of which remain in full force and effect in accordance with their terms.
For the avoidance of doubt, this Section 19(f) shall control over any conflicting provision of the Carry Guaranty, the
Agreement and the other Loan Documents as to the Carry Guaranty.
SIXTH AMENDMENT TO MEZZANINE LOAN AGREEMENT
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20. Exercise
of Remedies; Preservation of Safe Harbor and REIT Status. Notwithstanding anything to the contrary in the Agreement or any other Loan
Document:
a. Upon
the occurrence and during the continuance of an Event of Default, the rights and remedies of Administrative Agent and the Lenders shall
be exercised solely against (i) the Collateral (including the pledged limited liability company interests) as a secured party under
the Uniform Commercial Code and the Pledge Agreements, and (ii) the property charged pursuant to the Hypothec, and neither Administrative
Agent nor any Lender shall have any right to foreclose upon, take title to, or otherwise realize directly upon the Property (other than,
solely in the case of the Non-IIP Lenders, the property charged pursuant to the Hypothec as such actions may be taken outside of those
related to this Loan).
b. Upon
foreclosure or other exercise of remedies against the Collateral, Administrative Agent, the applicable Lender, or their designee shall
succeed to the pledged limited liability company interests and thereby replace Borrower as the member of the applicable entity. To the
extent any such entity is a partnership, the other partners of such partnership shall be deemed to have agreed not to unreasonably oppose
or withhold consent to the admission of Administrative Agent, such Lender or their designee as a substitute partner.
c. To
the extent permitted by the Co-Lender Agreement, the IIP Lender shall have the right to request, provided such request does not unreasonably
prejudice the other Lenders, to direct, structure, defer, decline, or modify the exercise of any remedy with respect to that portion of
the Loan held by the IIP Lender (including any foreclosure upon or retention of the Collateral, exercise of voting or consent rights,
or receipt of distributions) to the extent that the IIP Lender reasonably determines that such exercise, or its manner or timing, could
cause the IIP Lender (or any direct or indirect owner thereof that is a REIT) to fail to satisfy the Mezzanine Loan Safe Harbor or any
requirement applicable to a REIT under Sections 856 through 860 of the Code, including by causing title to the Collateral (or, upon any
subsequent realization, the Property) to be taken and held by a taxable REIT subsidiary, a qualified REIT subsidiary, or another qualified
transferee designated by the IIP Lender. No such direction, deferral, modification or forbearance shall constitute a waiver of any Default
or Event of Default or of any right or remedy under the Loan Documents; provided that any such deferral or forbearance by the IIP Lender
shall be without prejudice to Borrower and shall not extend, toll or otherwise modify any cure or performance period applicable to Borrower
under the Loan Documents. Notwithstanding the foregoing, in no event shall the Administrative Agent be required to act (or fail to act)
in any way which it determines, in its reasonable discretion, may be detrimental to the rights and remedies of the other Lenders under
the Loan Documents.
21. Additional
Requirements. Notwithstanding anything in the Agreement or the other Loan Documents to the contrary:
a. Administrative
Agent and each Lender shall reasonably cooperate with any Lender to structure the Loan, any exercise of remedies, and any acquisition,
holding or disposition of the Collateral or the Property so as to preserve the Mezzanine Loan Safe Harbor, including permitting the use
of a taxable REIT subsidiary, qualified REIT subsidiary, servicer or independent contractor (within the meaning of Section 856(d)(3) of
the Code) to hold or operate any real property acquired through an exercise of remedies.
SIXTH AMENDMENT TO MEZZANINE LOAN AGREEMENT
-22-
b. Any
Lender may assign, participate or otherwise transfer all or any portion of its Note, its Loan and its interest in the Loan Documents to
the extent such Lender reasonably determines necessary or advisable to preserve its status as a REIT or to comply with the Mezzanine Loan
Safe Harbor or Sections 856 through 860 of the Code, subject to and in accordance with the applicable transfer provisions of the Agreement,
the Co-Lender Agreement and the Intercreditor Agreement.
c. Borrower
shall not take, and shall cause the Issuer and the Mortgage Borrower not to take, any action that would cause the Issuer or the Mortgage
Borrower to be treated as an association, or as a publicly traded partnership, taxable as a corporation for U.S. federal income tax purposes,
and shall promptly furnish to Administrative Agent and any Lender such financial and other information as such Lender reasonably requests
to determine or confirm compliance with the REIT asset and income tests and the Mezzanine Loan Safe Harbor.
d. To
the extent any provision of the Loan Documents would, if enforced as written, cause the Loan to fail the Mezzanine Loan Safe Harbor, such
provision shall be applied and enforced only in the manner, and to the extent, that preserves the Mezzanine Loan Safe Harbor, and the
provisions of this Section 21 and Sections 18, 19 and 20 above (the “REIT Compliance Provisions”)
shall control over any conflicting provision of the Loan Documents as to the Loan; provided, that no application or enforcement of the
REIT Compliance Provisions shall, without Borrower’s consent, (i) increase the principal amount of, or the interest rate or
other amounts payable by Borrower under, the Loan, (ii) shorten the Maturity Date or the term of the Loan, or (iii) impose any
material out-of-pocket cost or expense on Borrower for which the requesting IIP Lender does not reimburse Borrower; provided further,
that a failure to satisfy the Mezzanine Loan Safe Harbor shall not, in itself, constitute a Default or Event of Default under the Agreement
for so long as the affected IIP Lender has received a reasoned written opinion of tax counsel to the effect that the Loan should be treated
as a “real estate asset” within the meaning of Section 856(c)(5)(B) of the Code notwithstanding such failure; provided
that the foregoing shall not relieve Borrower of any of its representations, warranties, covenants or cooperation obligations under the
REIT Compliance Provisions.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
SIXTH AMENDMENT TO MEZZANINE LOAN AGREEMENT
-23-
IN WITNESS WHEREOF, this Amendment has been executed
as of the day and year first above written.
ADMINISTRATIVE AGENT:
NREF OP IV REIT SUB, LLC,
a Delaware limited liability company
By:
/s/ Paul A. Richards
Name:
Paul Richards
Title:
Authorized Signatory
LENDERS:
NREF OP IV SUBHOLDCO, LLC,
a Delaware limited liability company
By:
/s/ Paul A. Richards
Name:
Paul Richards
Title:
Authorized Signatory
IIP LIFE SCIENCE INVESTMENTS
II LLC
a Delaware limited liability company
By:
/s/ David Smith
Name:
David Smith
Title:
Chief Financial Officer and Treasurer
BORROWER:
IQHQ-ALEWIFE HOLDINGS, LLC,
a Delaware limited liability company
By:
/s/ Preston Puryear
Name:
Preston Puryear
Title:
Authorized Signatory
CONSENT
AND REAFFIRMATION
The
undersigned hereby (a) consents to this Amendment and to the transactions contemplated thereby, even if no such consent is in fact
required; (b) reaffirms its representations and warranties (subject to the Representation Remaking Qualifications) covenants, liabilities,
obligations and agreements under each of the Loan Documents to which it is a party, with the same force and effect as if each were separately
stated herein and made as of the date hereof, as may be modified, amended or affected by this Amendment and (c) joins in the releases
in Section 8 hereof as if separately signed by Guarantor.
GUARANTOR:
IQHQ, LP,
a Delaware limited partnership
By:
IQHQ GP, LLC,
a Delaware limited liability company,
its general partner
By:
/s/ Preston Puryear
Name: Preston Puryear
Title: Authorized Signatory
The following schedules and exhibits were omitted pursuant to Item
601(a)(5) of Regulation S-K. The Company agrees to furnish supplementally a copy of any omitted schedule or exhibit to the SEC upon request.
Exhibit D – Initial Budget
Schedule III – List of Construction Agreements and Construction
Permits
Schedule IV – List of Sub-Contractors
Schedule VII – List of Design Professionals
Schedule XII – Organizational Chart
Schedule XIV – Unpaid Amounts
EX-10.2 — EXHIBIT 10.2
EX-10.2
Filename: tm2626535d1_ex10-2.htm · Sequence: 3
Exhibit 10.2
AMENDED AND RESTATED MEZZANINE LOAN AND SECURITY
AGREEMENT
Dated as of September 30, 2025
among
IQHQ-ALEWIFE HOLDINGS, LLC,
as Borrower,
and
NREF OP IV SUBHOLDCO, LLC
as the Initial Lender,
NREF OP IV REIT SUB, LLC,
as Administrative Agent for the Lenders,
AND THE LENDERS FROM TIME-TO-TIME PARTY HERETO
TABLE OF CONTENTS
Page
I.
DEFINITIONS; PRINCIPLES OF CONSTRUCTION
2
1.1
Definitions
2
1.2
Principles of Construction
65
II.
GENERAL TERMS
66
2.1
Loan Amounts and Disbursement to Borrower
66
2.2
Commitments to Lend
68
2.3
Advances
68
2.4
Notice to Lenders and Funding of Advances
69
2.5
Term and Extension Option
69
2.6
Interest Rate
75
2.7
Interest Calculation
76
2.8
General Provisions as to Payments
76
2.9
Default Interest
77
2.10
Application of Payments
77
2.11
Late Payment Charge
78
2.12
Usury Savings
78
2.13
Prepayments
78
2.14
Application of Prepayments
80
2.15
Intentionally Omitted
81
2.16
Release of Collateral
81
2.17
Taxes
81
2.18
Designations of Different Lending Office
85
2.19
Increased Costs
86
2.20
Costs and Advances
88
2.21
Use of Advances
88
2.22
Loan Borrowing Procedures
89
2.23
Advances for Stored Materials
91
2.24
Budget Reallocations; Cost Savings; Contingency
93
2.25
Balancing and Deficiency
95
2.26
Direct Advances
98
2.27
Intentionally Omitted
98
2.28
Partial Advances
98
2.29
Retainage
98
2.30
Conditions Precedent to Advances
99
2.31
Conditions Precedent to Final Advance under a General Contractor Agreement
103
2.32
Conditions Precedent to Final Advance
105
2.33
Interest Rate Cap Agreement
106
2.34
Imprest Account
109
III.
CASH MANAGEMENT
109
3.1
Cash Management under the Mortgage Loan
109
i
3.2
Cash Management
110
3.3
Collateral
110
IV.
REPRESENTATIONS AND WARRANTIES
116
4.1
Borrower General Representations
116
4.2
Construction and Project Representations
130
4.3
Intentionally Omitted
132
4.4
Survival of Representations
133
V.
BORROWER COVENANTS
133
5.1
General Covenants
133
5.2
TRS Option
147
5.3
Zoning and Entitlements
147
5.4
Property Operating Agreements
149
5.5
Further Assurances
152
5.6
Costs of Enforcement
153
5.7
High Volatility Commercial Real Estate
153
5.8
Construction Related Covenants
153
5.9
Key Persons
165
5.10
Continuing Lien
165
VI.
INSURANCE; CASUALTY; CONDEMNATION; RESTORATION
166
6.1
Insurance under the Mortgage Loan
166
6.2
Insurance Requirements prior to Substantial Completion
166
6.3
Insurance Requirements following Component Substantial Completion or during any Construction Pause
168
6.4
Condemnation and Insurance Proceeds
173
VII.
IMPOSITIONS, OTHER CHARGES, LIENS AND OTHER ITEMS
179
7.1
Borrower to Pay Impositions and Other Charges
179
7.2
No Liens
180
7.3
Contest
180
VIII.
TRANSFERS, INDEBTEDNESS AND SUBORDINATE LIENS
181
8.1
Restrictions on Transfers
181
8.2
Sale of Equipment
181
8.3
Immaterial Easements
181
8.4
Indebtedness
182
8.5
Certain Transfers
182
IX.
SPECIAL PURPOSE PROVISIONS
185
9.1
Single Purpose Entity/Separateness
185
X.
MAINTENANCE OF PROPERTY; ALTERATIONS
193
10.1
Maintenance of Property
193
10.2
Conditions to Alteration
193
XI.
BOOKS AND RECORDS, FINANCIAL STATEMENTS, REPORTS AND OTHER INFORMATION
194
ii
11.1
Books and Records
194
11.2
Financial Statements
194
XII.
THE ADMINISTRATIVE AGENT
197
12.1
Appointment and Authorization
197
12.2
Administrative Agent and Affiliates
197
12.3
Action by Administrative Agent
197
12.4
Consultation with Experts
197
12.5
Liability of Administrative Agent
197
12.6
Indemnification
198
12.7
Credit Decision
198
12.8
Successor Administrative Agent
198
12.9
Copies of Notices
191
12.10
Borrower’s Rights
191
12.11
Agency Provisions regarding Intercreditor Agreement
191
XIII.
INTENTIONALLY OMITTED
200
XIV.
LOAN BIFURCATION
200
14.1
Component Note; New Mezzanine Loan
200
14.2
Intentionally Omitted
201
14.3
Cooperation
201
14.4
Disclosure Indemnification
202
XV.
ASSIGNMENTS AND PARTICIPATIONS
203
15.1
Assignment and Assumption
203
15.2
Effect of Assignment and Assumption
203
15.3
Consent
204
15.4
Register
204
15.5
Substitute Notes
205
15.6
Participations
205
15.7
Disclosure of Information
206
15.8
Security Interest in Favor of Federal Reserve Bank
206
15.9
Mortgage Loan; Intercreditor Agreement
206
15.10
Defaulting Lender
207
15.11
Costs and Expenses
211
15.12
Prohibited Transferee
211
XVI.
RESERVE ACCOUNTS
211
16.1
Tax Reserve Funds
211
16.2
Insurance Reserve Funds
212
16.3
Debt Service Reserve Funds
213
16.4
Intentionally Omitted
214
16.5
Operating Expense Reserve Funds
214
16.6
Intentionally Omitted
214
16.7
Excess Cash Flow Funds
215
16.8
Use of Loan Advances
215
iii
16.9
Costs and Expenses
215
XVII.
DEFAULTS
215
17.1
Event of Default
215
17.2
Remedies
223
17.3
Remedies Cumulative; Waivers
224
17.4
Costs of Collection
225
17.5
Construction Related Remedies
225
17.6
Right to Cure Defaults
226
17.7
Direct Disbursement and Application by Administrative Agent
227
XVIII.
EXCULPATION
228
18.1
Exculpation
228
18.2
Carveouts From Non-Recourse Limitations
231
18.3
Survival
234
XIX.
MISCELLANEOUS
235
19.1
Survival
235
19.2
Administrative Agent’s Discretion
235
19.3
GOVERNING LAW
235
19.4
Modification, Waiver in Writing
237
19.5
Delay Not a Waiver
237
19.6
Notices
237
19.7
TRIAL BY JURY
239
19.8
Headings
239
19.9
Severability
239
19.10
Preferences
239
19.11
Waiver of Notice
240
19.12
Expenses; Indemnity
240
19.13
Remedies of Borrower
242
19.14
Incorporation
242
19.15
Offsets, Counterclaims and Defenses
242
19.16
Liability of Assignees of Administrative Agent
242
19.17
No Joint Venture or Partnership; No Third Party Beneficiaries
242
19.18
Publicity
243
19.19
Waiver of Marshaling of Assets
244
19.20
Waiver of Counterclaim and other Actions
244
19.21
Conflict; Construction of Documents; Reliance
244
19.22
Brokers and Financial Advisors
245
19.23
Prior Agreements
245
19.24
Counterparts
245
19.25
Limitation of Liability
245
19.26
Retention of Servicer
246
19.27
Acknowledgement and Consent to Bail-In of Affected Financial Institutions
246
19.28
Joint and Several Liability
246
19.29
Replacement Documents
246
iv
19.30
Co-Agents; Lead Managers
247
19.31
Deemed Approval
247
19.32
Right of First Negotiation
248
19.33
Tax Indemnity
248
XX.
MORTGAGE LOAN
249
20.1
Intentionally Omitted
249
20.2
Compliance With Mortgage Loan Documents
249
20.3
Intentionally Omitted
249
20.4
Mortgage Loan Defaults
249
20.5
No Amendments to Mortgage Loan Documents
250
20.6
Acquisition of Mortgage Loan
251
20.7
Mortgage Loan Intercreditor Agreement
251
20.8
Independent Approval Rights
252
20.9
Discussions with Mortgage Administrative Agent and Other Third Parties
252
*The following Exhibits and Schedules were
omitted pursuant to Item 601(a)(5) of Regulation S-K. The Company agrees to furnish supplementally a copy of any
omitted schedule or exhibit to the SEC upon request.
EXHIBITS:
Exhibit A
Legal Description of the Property
Exhibit B
Intentionally Omitted
Exhibit C
Form of SNDA
Exhibit D
Initial Budget
Exhibit E
Intentionally Omitted
Exhibit F-1
Tax Compliance Certificate (Foreign Lenders That Are Not Partnerships)
Exhibit F-2
Tax Compliance Certificate (Foreign Participants That Are Not Partnerships)
Exhibit F-3
Tax Compliance Certificate (Foreign Participants That Are Partnerships)
Exhibit F-4
Tax Compliance Certificate (Foreign Lenders That Are Partnerships)
Exhibit G-1
Form of Request for Advance
Exhibit G-2
Form of Anticipated Cost Report
Exhibit G-3
Form of Project Cost Report
Exhibit H-1
Form of Lien Waiver (Trade Contractor)
Exhibit H-2
Form of Lien Waiver (General Contractor)
Exhibit H-3
Form of Final Lien Waiver
SCHEDULES:
Schedule I
Authorized Representatives
Schedule II
Commitment Amounts
Schedule III
List of Construction Agreements and Construction Permits
Schedule IV
List of Sub-Contractors
Schedule V
List of Zoning Documents
Schedule VI
List of Property Operating Agreements
Schedule VII
List of Design Professionals
Schedule VIII
REAs
v
Schedule IX
Prohibited Transferees
Schedule X
Notional Amounts
Schedule XI
Minimum Leasing Criteria
Schedule XII
Organizational Chart
Schedule XIII
List of Service Contracts
Schedule XIV
Unpaid Amounts
Schedule XV
Special Permit
Schedule XVI
Enabling Work
Schedule XVII
Existing Leases
Schedule XIX
Mortgage Loan Conditions
Schedule XX
Cold Shell Description
vi
This AMENDED AND RESTATED
MEZZANINE LOAN AND SECURITY AGREEMENT is dated as of September 30, 2025 (as the same may be amended, supplemented or otherwise
modified from time to time, this “Agreement”) by and among IQHQ-ALEWIFE HOLDINGS, LLC, a Delaware limited liability
company (the “Borrower”), NREF OP IV SUBHOLDCO, LLC, a Delaware limited liability company, as the Initial Lender (as
defined herein), NREF OP IV REIT SUB, LLC, a Delaware limited liability company, as Administrative Agent (as defined herein), and the
Lenders (as defined herein) from time to time party hereto.
RECITALS:
WHEREAS, Borrower is
the sole member of IQHQ-ALEWIFE MEMBER, LLC, a Delaware limited liability company (“Sole Member”), which is the sole
member of IQHQ-ALEWIFE, LLC, a Delaware limited liability company (the “Mortgage Borrower”);
WHEREAS, Mortgage Borrower
is the fee owner of (i) the parcel of real property commonly known as Alewife Park, located in the City of Cambridge, County of Middlesex,
State of Massachusetts, such ownership interest being comprised of a fee simple interest in the parcels of land described in Exhibit A
attached hereto (collectively, the “Land”), and (ii) title to the Improvements (as defined herein) located thereon;
WHEREAS, in addition
to the Land, Mortgage Borrower is a party to those certain Zoning Documents (as hereinafter defined) pursuant to which Mortgage Borrower
is entitled to the benefit of certain development rights (collectively, the “Development Rights”) as more particularly
set forth therein;
WHEREAS, pursuant to
that certain Mezzanine Loan and Security Agreement (as amended, the “Original Mezzanine Loan Agreement”), dated as
of January 26, 2024 (the “Original Closing Date”), the Lenders made a loan to Borrower in the maximum principal
sum of $218,000,000 (the “Original Loan”), which Original Loan is evidenced that certain Mezzanine Promissory Note,
dated as of the Original Closing Date, made by Borrower in favor of Secured Party (the “Original Note”);
WHEREAS, Article XIV
of the Original Mezzanine Loan Agreement grants to Administrative Agent and the Lenders the right to bifurcate the Original Loan into
two (2) or more loans. Administrative Agent and Lenders desire to exercise their right to bifurcate the Original Loan into a senior
mortgage loan and a subordinate mezzanine loan.
WHEREAS, concurrently
herewith, Borrower, Administrative Agent, and Lenders are entering into that certain Note Splitter Agreement dated as of the date hereof
(the “Note Splitter Agreement”), pursuant to which the Original Loan is being bifurcated in accordance with Article XIV
of the Original Mezzanine Loan Agreement and the terms thereunder into two (2) separate loans, a senior mortgage loan in the maximum
principal sum of $85,000,000 (the “Mortgage Loan”) and a mezzanine loan in the maximum principal sum of $133,000,000
(the “Loan”), and the Original Note is being split into two (2) promissory notes as follows: (a) that certain
Senior Promissory Note evidencing Borrower’s obligation to pay the maximum principal sum of $85,000,000 (the “Mortgage
Note”) and (b) that certain Mezzanine Promissory Note evidencing Borrower’s obligation to pay the maximum principal
sum of $133,000,000 (the “Note”, together with the Mortgage Note, collectively, the “Replacement Notes”).
1
WHEREAS, the parties
desire to enter into this Agreement to, among other things, govern the terms of the Loan, which is evidenced by the Note in the aggregate
principal amount of the Loan and is to be secured by the lien of the Pledge Agreements (as hereinafter defined) and other security documents
as set forth herein. The parties desire that this Agreement shall constitute an amendment and restatement in its entirety of the Original
Mezzanine Loan Agreement.
WHEREAS, subject to
and in accordance with the applicable terms and conditions set forth in this Agreement, the Note Splitter Agreement, and the other Loan
Documents, Lenders are agreeing to make Advances (as defined herein) to fund the cost of the construction of the Required Improvements
(as hereinafter defined).
NOW, THEREFORE, in
consideration of the mutual promises and agreements contained herein and for other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereto hereby covenant, agree, represent and warrant as follows:
I. DEFINITIONS;
PRINCIPLES OF CONSTRUCTION.
1.1 Definitions.
For all purposes of this Agreement, except as otherwise expressly required or unless the context clearly indicates a contrary intent:
“Acceptable Counterparty”
means a counterparty to the Interest Rate Cap Agreement (or the guarantor of such counterparty’s obligations) that (a) has
and shall maintain, until the expiration of the applicable Interest Rate Cap Agreement (i)(x) a long-term unsecured debt rating of
not less than “A-” by S&P and a short-term senior unsecured debt rating of at least “A-2” from S&P or
(y) if such counterparty has no short-term debt rating, a long-term senior unsecured debt rating of at least “A” from
S&P, (ii)(x) a long-term unsecured debt rating of not less than “A3” from Moody’s and a short-term senior unsecured
debt rating of not less than “P2” from Moody’s or (y) if such counterparty has no short-term debt rating, a long-term
senior unsecured debt rating of at least “A2” from Moody’s, and (iii) if such Person is rated by Fitch, a long-term
unsecured debt rating of at least “A-” by Fitch (and not on Rating Watch Negative) and a short-term unsecured debt rating
of at least “F2” by Fitch (and not on Rating Watch Negative), or (b) is otherwise acceptable to Administrative Agent.
“Access Laws”
has the meaning set forth in Section 5.1.5(a).
“Account Collateral”
has the meaning set forth in Section 3.2.2(a).
“Account Establishment
Date” means the earlier to occur of (i) Component Substantial Completion of any Component or (ii) the commencement
of any Lease.
“Account Holdbacks”
has the meaning set forth in Section 3.2.1(b).
“Acquiescing”
means, with respect to any event or action, (a) taking affirmative steps to support or facilitate such event or action, or (b) failing
to take steps to prevent such event or action, where the Person failing to take such steps had the ability under Legal Requirements to
act in a different manner (including, without limitation, if the event or action to which such Person Acquiesced was subject to “major
decisions” consent or approval right of such Person under organizational documents to which such person is a party and such Person
did not exercise such consent or approval right). The terms “Acquiesce”, “Acquiesces” and “Acquiesced”
shall have correlative meanings.
2
“Act” has
the meaning set forth in Section 9.1.1(f).
“Additional Disclosure
Conditions” means, with respect to any additional information requested by Administrative Agent not otherwise required to be
delivered to Administrative Agent pursuant to any other provisions of this Agreement or the other Loan Documents, (x) such additional
information is within Borrower’s, Borrower’s Affiliates’ and/or Guarantor’s possession or control or is reasonably
available to Borrower, Borrower’s Affiliates or Guarantor (as applicable) at no additional material cost (unless paid by Administrative
Agent) and (y) no such additional information shall include items that Borrower or Guarantor reasonably determine: (i) to be
subject to any confidentiality requirements with third parties that prohibit such disclosure to Administrative Agent, or (ii) are
attorney client privileged or constitute attorney work product. It is hereby agreed that nothing in this definition of Additional Disclosure
Conditions shall in any way alter, modify, or limit Borrower’s or Guarantor’s obligations to provide information or documentation
that is expressly required to be provided pursuant to the terms this Agreement or any of the other Loan Documents.
“Additional Interest”
has the meaning set forth in Section 2.1.5.
“Administrative Agent”
means NREF OP IV REIT Sub, LLC, a Delaware limited liability company, in its capacity as Administrative Agent for the Lenders hereunder,
and its permitted successors and assigns in such capacity.
“Advance”
or “Loan Advance” means the advance of any portion of the Loan Amount pursuant to the provisions of this Agreement.
“Advance Conditions”
means, collectively, all of the conditions for the disbursement of any Advance as set forth in Sections 2.20 to 2.32 (inclusive)
of this Agreement.
“Advance Date”
means the date on which Lenders disburse any Advance to Borrower pursuant to this Agreement.
“Affected Financial
Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affiliate”
means, with respect to any specified Person, any other Person Controlling or Controlled by or under Common Control with, or any general
partner or managing member in, such specified Person.
“Affiliate Manager”
means IQHQ Property Management, LP, a Delaware limited partnership.
3
“Affiliate Management
Agreement” means that certain Property Management Agreement dated as of December 31, 2024, between Mortgage Borrower and
Affiliate Manager, as the same may be amended, replaced, supplemented or otherwise modified from time to time in accordance with the terms
hereof
“Affiliate Service
Provider” means Construction Manager, Affiliate Manager or any Leasing Agent that is an Affiliate of Borrower, Mortgage Borrower
or Guarantor.
“Affiliated Property
Operating Agreements” means, individually and/or collectively, as the context may require, the Construction Management Agreement,
the Affiliate Management Agreement (as either of the same may hereafter be amended, restated, replaced, supplemented or otherwise modified
in accordance with the provisions thereof) and any other Property Operating Agreement entered into by Mortgage Borrower with an Affiliate
of any Borrower Party with the approval of Administrative Agent in accordance with Section 5.4.
“Agreement”
has the meaning set forth in the introductory first paragraph hereof
“ALTA”
means American Land Title Association, or any successor thereto.
“Alteration”
has the meaning set forth in Section 10.2.
“Alternate Rate”
means, with respect to each Interest Period, the per annum rate of interest of the Alternate Rate Index determined as of the Determination
Date immediately preceding the commencement of such Interest Period plus the Alternate Rate Spread; provided that in no
event will the Alternate Rate be less than the Minimum Rate.
“Alternate Rate Index”
means a floating rate index determined by Administrative Agent in its sole good faith discretion (a) that is commonly accepted by
market participants in commercial real estate loans as an alternative to the Term SOFR Rate Index and (b) that is publicly recognized
by the International Swaps and Derivatives Association (ISDA) as an alternative to the Term SOFR Rate Index; provided that in no
event will the Alternate Rate Index.
“Alternate Rate Loan”
means the Loan at such time as interest thereon accrues at a rate of interest based upon the Alternate Rate.
“Alternate Rate Spread”
means, in connection with any conversion of the Loan from (A) a SOFR Rate Loan to an Alternate Rate Loan, the difference (expressed
as the number of basis points) of (a) the Term SOFR Rate Index as of the Determination Date for which the Term SOFR Rate Index was
last applicable to the Loan plus the Spread minus (b) the Alternate Rate Index as of such Determination Date, or (B) a
Prime Rate Loan to an Alternate Rate Loan, the difference (expressed as the number of basis points) of (a) the Prime Rate Index as
of the Determination Date for which the Prime Rate Index was last applicable to the Loan plus the Prime Rate Spread minus
(b) the Alternate Rate Index as of such Determination Date; provided, however, that in either such case, if such difference
is a negative number, then the Alternate Rate Spread shall be zero.
“Annual Operating
Budget” means, collectively, each operating budget for the Property or any Component thereof to be prepared by Mortgage Borrower
or any Manager, on Mortgage Borrower’s behalf, pursuant to the applicable Management Agreement, for each fiscal year following Component
Substantial Completion and setting forth, in reasonable detail, Mortgage Borrower’s and/or Manager’s good faith estimates
of operating income, operating expenses, management fees and any capital expenditures.
4
“Applicable Date”
has the meaning set forth in Section 2.1.5.
“Applicable Interest
Rate Loan” means the Loan at such time as the interest thereon accrues at a rate of interest based on the Applicable Rate.
“Applicable Rate”
means the greater of (A) fourteen percent (14%) per annum, and (B)(i) the SOFR Rate for so long as the Loan is a SOFR Rate Loan,
(ii) the Alternate Rate for so long as the Loan is an Alternate Rate Loan or (iii) the Prime Rate for so long as the Loan is
a Prime Rate Loan.
“Application Documents”
means the Application Documents identified and listed in the Special Permit.
“Appraisal”
means a written statement setting forth an opinion of the market value of the Property that (i) has been independently and impartially
prepared by an appraiser directly engaged by Administrative Agent, (ii) complies with all applicable federal and state laws and regulations
dealing with appraisals or valuations of real property, including the minimum appraisal standards for national banks promulgated by the
Comptroller of the Currency pursuant to Title XI of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, as amended
(FIRREA), (iii) has been prepared on as “as-is” or “as-completed” basis, as applicable, (iv) has been
prepared not more than sixty (60) days prior to the relevant date and (v) has been reviewed as to form and content and approved by
Administrative Agent, in its reasonable discretion.
“Approved Accounting
Method” means GAAP, income tax basis accounting or such other accounting method as may be reasonably acceptable to Administrative
Agent, in each case consistently applied.
“Approved Bank”
means (i) JPM, (ii) Wells Fargo Bank, N.A., so long as it is an Eligible Institution, (iii) Citizens Bank, except following
a downgrade of its rating by S&P below BBB or Moody’s below Baa with a negative watch for long term credit ratings, or a withdrawal
or qualification of any such rating, (iv) NexBank or (v) any bank or financial institution reasonably acceptable to Administrative
Agent.
“Approved Equipment
Financing” means leases, equipment financings or other similar instruments entered into with respect to the Property in connection
with the lease, purchase, acquisition or replacement of Equipment at the Property that, in each case, (i) is entered into on an arms’-length
basis and on commercially reasonable terms and conditions with an unrelated third party in the ordinary course of Mortgage Borrower’s
business, (ii) is secured by security agreements in favor of the provider thereof encumbering only the equipment financed, (iii) is
evidenced by instruments and documents reasonably acceptable to Administrative Agent, and (iv) when taken together with all other
Approved Equipment Financings, the Indebtedness evidenced thereby does not exceed $1,000,000 at any time outstanding. For purposes of
determining Indebtedness in respect of Approved Equipment Financing, Indebtedness shall refer to the outstanding principal balance
of the Approved Equipment Financing.
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“Approved Imprest
Amount” has the meaning set forth in Section 2.34(a).
“Architect”
means, individually and/or collectively, as the context may require, (i) each Architect of Record and (ii) each Design Architect,
together with any successor or additional architects engaged by (or on behalf of) Mortgage Borrower, in each case, subject to the requirements
set forth in Section 5.8.12.
“Architect Agreement”
means, individually and/or collectively, as the context may require, (i) that certain Architectural Design and Construction Administration
Services Agreement dated April 1, 2022 between Mortgage Borrower and Studio Troika, (ii) that certain Services Agreement dated
as of October 24, 2022 between Mortgage Borrower and SGA, (iii) that certain Standard form of Agreement between Owner and Architect,
dated as of October 3, 2022 between Mortgage Borrower and Gensler, (iv) the other agreements with the Design Architects set
forth on Schedule VII attached hereto, and (v) any agreement with an Architect for architectural services which may be entered
into by or on behalf of Mortgage Borrower in each case subject to the requirements of Section 5.8.12, together with any other
agreement which relates to the design of the Required Improvements and provides for architectural services in connection with the design
of the Required Improvements which may be entered into by or on behalf of Mortgage Borrower with any successor, additional or replacement
Architect subject to the requirements of Section 5.8.12, in each case as the same may be amended, replaced, supplemented or
otherwise modified from time to time in accordance with the terms hereof
“Architect Consent”
means a Mezzanine Architect Consent and Agreement executed and delivered by the applicable Architect in favor of Secured Party, in form
and substance reasonably approved by Administrative Agent.
“Architect of Record”
means, individually and/or collectively, as the context may require, (i) with respect to the Building One Component, Studio Troika
Inc. (“Studio Troika”), together with any successor, replacement or additional Architect engaged by (or on behalf of)
Mortgage Borrower with respect thereto, (ii) with respect to the portion of the Building One Component consisting of the Marketing
Suite - Building 28, Spagnolo Gisness & Associates, Inc., a Massachusetts corporation (“SGA”) and
(iii) with respect to the remainder of the Project, M. Arthur Gensler Jr. & Associates, Inc. (“Gensler”),
together with any successor, replacement or additional Architect engaged by (or on behalf of) Mortgage Borrower with respect thereto,
in each case, subject to the requirements set forth in Section 5.8.12.
“As-Completed Appraised
Value” means the “as completed” value of the Project, as determined by Administrative Agent based upon its review
of an Appraisal.
“As-Is Appraised
Value” means the “as-is” value of the Project, as determined by Administrative Agent based on its review of an Appraisal.
“As-Is Loan-to-Value
Ratio (Aggregate)” means as of the date of its calculation, the ratio of (i) the sum of (w) the outstanding principal
amount of the Loan, (x) the amount of any unfunded Loan proceeds available to Borrower under this Agreement, (y) the outstanding
principal amount of the Mortgage Loan, and (z) the amount of any unfunded Mortgage Loan proceeds available to Mortgage Borrower under
the Mortgage Loan Agreement, to (ii) the As-Is Appraised Value.
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“As-Is Loan-to-Value
Ratio (Mortgage Only)” means as of the date of its calculation, the ratio of (i) the sum of (x) the outstanding principal
amount of the Mortgage Loan and (y) the amount of any unfunded Mortgage Loan proceeds available to Mortgage Borrower under the Mortgage
Loan Agreement, to (ii) the As-Is Appraised Value.
“As-Stabilized Appraised
Value” means the “as-stabilized” value of the Project, as determined by Administrative Agent based on its review
of an Appraisal.
“As-Stabilized Loan-to-Value
Ratio (Aggregate)” means as of the date of its calculation, the ratio of (a) the sum of (x) the outstanding principal
amount of the Loan as of the date of such calculation, and (y) the outstanding principal amount of the Mortgage Loan as of the date
of such calculation, to (b) the As-Stabilized Appraised Value.
“Assignment and Assumption”
means an assignment and assumption entered into by a Lender and an assignee, accepted by Administrative Agent in accordance with Article XV.
“Assignment of Interest
Rate Cap Agreement” means that certain Mezzanine Collateral Assignment of Interest Rate Protection Agreement, dated as of the
Original Closing Date between Borrower and Secured Party and acknowledged by the Acceptable Counterparty, as the same may be amended,
replaced, supplemented or otherwise modified from time to time in accordance with the terms thereof, including, without limitation, any
assignment of interest rate cap agreement delivered in connection with any Replacement Interest Rate Cap Agreement or Substitute Interest
Rate Cap Agreement, as applicable.
“Authorized Representative”
means any Person designated on Schedule I attached hereto as the same may be updated and revised by Borrower upon prior written
notice to Administrative Agent from time to time.
“Bail-In Action”
means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected
Financial Institution.
“Bail-In Legislation”
means, (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament
and of the Council of the European Union, the implementing law, regulation, rule or requirement for such EEA Member Country from
time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of
the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United
Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other
than through liquidation, administration or other insolvency proceedings).
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“Bankruptcy Action”
means with respect to any Person (a) such Person filing a voluntary petition under the Bankruptcy Code or any other federal or state
bankruptcy or insolvency law; (b) the filing of an involuntary petition against such Person under the Bankruptcy Code or any other
federal or state bankruptcy or insolvency law, or soliciting or causing to be solicited petitioning creditors for any involuntary petition
(including, without limitation, seeking reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief)
against such Person; (c) such Person filing an answer consenting to or otherwise knowingly Acquiescing in or joining in any involuntary
petition filed against it, by any other Person under the Bankruptcy Code or any other federal or state bankruptcy or insolvency law, or
soliciting or causing to be solicited petitioning creditors for any involuntary petition from any Person; (d) such Person consenting
to or knowingly Acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, assignee, sequestrator
(or similar official), liquidator, or examiner for such Person or any portion of the Property or Collateral; (e) intentionally omitted,
(f) under the provisions of any other law for the relief or aid of debtors, an action taken by any court of competent jurisdiction
that allows such court to assume custody or Control of a Person or of the whole or any substantial part of its property or assets; or
(g) such Person making an assignment for the benefit of creditors, or admitting in writing in any legal proceeding, its insolvency
or inability to pay its debts as they become due (unless (i) failure to make such admission is a violation of applicable law or (ii) is
in connection with a workout or settlement with Administrative Agent, or in response to a discovery request where such response would
be true and such Person is advised by legal counsel that such Person is required to provide such response pursuant to Legal Requirements).
“Bankruptcy Code”
means Title 11 of the United States Code, 11 U.S.C. §101, et seq., as amended from time to time, and any successor statute
or statutes and all rules and regulations from time to time promulgated thereunder, and any comparable foreign laws relating to bankruptcy,
insolvency or creditors’ rights or any other Federal, state, local or foreign bankruptcy or insolvency law.
“Bankruptcy Event”
has the meaning set forth in Section 17.1(a)(vii).
“Bond”
means a payment bond and a performance bond (i) in the form of AIA Document A312, or in such other form as may be reasonably acceptable
to Administrative Agent, (ii) with dual obligee riders that name Administrative Agent as a co-obligee with Mortgage Borrower, and
(iii) issued by a surety reasonably satisfactory to Administrative Agent.
“Borrower”
has the meaning set forth in the first paragraph of this Agreement.
“Borrower Party”
means each of Borrower, Mortgage Borrower, Sole Member, Guarantor, any Affiliate Service Provider and each Affiliate of any of the foregoing.
“Borrowing”
means a borrowing hereunder consisting of the aggregation of Advances of one or more Lenders to be made to Borrower pursuant to Article II
on a single date.
“Breakage Costs”
has the meaning set forth in Section 2.6(e) hereof.
“Broad Affiliate”
means, with respect to any Person, any other Person which (i) is an Affiliate of such Person, (ii) is a director or officer
of such Person, (iii) owns (directly or indirectly) 10% or more of the equity interests in such Person or (iv) is a sibling,
family trust, parent, spouse, child (or step-child), grandchild or other lineal descendant of such Person; provided, however,
in no event shall Administrative Agent or any Lender be deemed a Broad Affiliate of Borrower.
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“Budget”
means the project construction and development budget prepared by, or on behalf of, Borrower for the construction and development of the
Project, as the same may be adjusted due to changes or reallocations made in accordance with Section 2.24 or Section 5.8.3
of this Agreement, and which budget, in any event (i) sets forth Borrower’s estimates for budgeted construction and development
categories of all items of costs and expenses to be incurred or payable with respect to the foregoing, (ii) includes all costs estimated
to be incurred in connection with and relating to the ownership and operation of the Project until the Stated Maturity Date, and (iii) specifies
whether each such item constitutes a Hard Cost or a Soft Cost. The Budget approved by Administrative Agent as of the Closing Date is attached
hereto as Exhibit D.
“Building”
shall mean any one of Building One, Building Two and Building Three.
“Building One”
means the real property and improvements located at 1R-3R Alewife Brook Parkway, Cambridge, Massachusetts.
“Building One Component”
has the meaning set forth in the definition of Required Improvements.
“Building One Amenities”
means the amenities and features of the Project with respect to Building One that are either required by the Special Permit or elected
to be completed by Mortgage Borrower and which are referenced in the Zoning Documents.
“Building One Mullion
Replacement” means the mullion replacement work in Building One, if any, for which the reasonable approvals of Administrative
Agent contemplated under Section 5.8.27 hereof have been obtained.
“Building Two”
means the real property and improvements located at 36-64, 53-59, 65-85, 91-99 and 115 Whittemore Avenue, Cambridge, Massachusetts.
“Building Two Component”
has the meaning set forth in the definition of Required Improvements.
“Building Two Amenities”
means the amenities and features of the Project with respect to Building Two that are either required by the Special Permit or elected
to be completed by Mortgage Borrower and which are referenced in the Zoning Documents.
“Building Three”
means the Building to be constructed as part of the Construction Component designated on the Plans and Specifications as “Building
3”.
“Building Four”
means the Building to be constructed as part of the Construction Component designated on the Plans and Specifications as “Building
4”.
“Building Five”
means the Building to be constructed as part of the Construction Component designated on the Plans and Specifications as “Building
5”.
“Business Day”
means any day except a Saturday, Sunday or other day on which commercial banks in New York, New York or Cambridge, Massachusetts are authorized
by law to close.
“Calendar Quarter
Period” means each successive three (3) calendar month period occurring during a Fiscal Year (i.e., January through
and including March, April through and including June, July through and including September, and October through and including
December, respectively).
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“Carry Guaranty”
means that certain Mezzanine Guaranty of Carrying Costs, dated as of the Original Closing Date, made by Guarantor in favor of Secured
Party, as amended by that certain Amendment to Mezzanine Guaranty of Carrying Costs dated as of the Closing Date, as the same may be further
amended, replaced, supplemented or otherwise modified from time to time.
“Cash”
means the legal tender of the United States of America, in immediately available funds.
“Cash Management
Account” has the meaning set forth in Section 3.2.1(a).
“Cash Management
Agreement” means a cash management agreement entered into among Administrative Agent, Cash Management Bank, Borrower and Mortgage
Borrower pursuant to Article III in form and substance reasonably acceptable to Administrative Agent, as the same may be amended,
replaced, supplemented or otherwise modified from time to time.
“Cash Management
Bank” has the meaning set forth in Section 3.2.1(a).
“Cash Sweep Event”
shall mean the occurrence of: (a) an Event of Default; (b) any Bankruptcy Action of Borrower or Mortgage Borrower; (c) Substantial
Completion not yet having occurred; or (d) a Debt-Service Trigger Event. A Cash Sweep Event shall exist from and after the date hereof
by reason of the events described in the foregoing clauses (c) and (d) until the occurrence of a Cash Sweep Event
Cure pursuant to clauses (c) and (a), respectively, of the definition of such term, subject, in all events to the occurrence
of any new Cash Sweep Event.
“Cash Sweep Event
Cure” shall mean (a) if the Cash Sweep Event is caused solely by the occurrence of a Debt-Service Trigger Event, the achievement
of a Debt-Service Cure, (b) if the Cash Sweep Event is caused by an Event of Default, the acceptance by Administrative Agent of a
cure of such Event of Default (which cure Administrative Agent is not obligated to accept and may reject or accept in its sole and absolute
discretion), or (c) if the Cash Sweep Event is caused by not having achieved Substantial Completion, the achievement of Substantial
Completion; provided, however, that, such Cash Sweep Event Cure set forth in this definition shall be subject to the following
conditions, (i) no Event of Default shall have occurred and be continuing under this Agreement or any of the other Loan Documents,
and (ii) Borrower shall have paid all of Administrative Agent’s actual out-of-pocket expenses incurred in connection with such
Cash Sweep Event Cure, including, reasonable attorney’s fees and expenses. In no event shall Borrower be entitled to cure a Cash
Sweep Event caused by a Bankruptcy Action of Borrower or Mortgage Borrower.
“Cash Sweep Period”
shall mean each period commencing on the occurrence of a Cash Sweep Event and continuing until the earlier of (a) the Payment Date
next occurring following the related Cash Sweep Event Cure, or (b) until payment in full of all principal and interest on the Loan
and all other amounts payable under the Loan Documents in accordance with the terms and provisions of the Loan Documents.
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“Casualty”
means any casualty, damage, destruction or injury, by fire or otherwise, to all or any portion of the Property.
“Casualty Amount”
means $2,000,000.00.
“Casualty Consultant”
has the meaning set forth in Section 6.4.6(c).
“Casualty Retainage”
has the meaning set forth in Section 6.4.6(c).
“Cause”
means, with respect to an Independent Director, (i) any acts or omissions by such Independent Director that constitute systematic,
persistent or willful disregard of such Independent Director’s duties, (ii) such Independent Director has been indicted or
convicted for any crime or crimes of moral turpitude or dishonesty or for any violation of any Legal Requirements, (iii) such Independent
Director no longer satisfies the definition of Independent Director or is no longer able to fulfill its obligations as Independent Director,
(iv) the fees charged for the services of such Independent Director are materially in excess of the fees charged by the other providers
of Independent Directors listed in the definition of “Independent Director”, as determined by Borrower in its reasonable discretion,
or (v) any other reason for which the prior written consent of Administrative Agent shall have been obtained.
“Certification Date”
means January 1 and July 1 of each year.
“Change in Law”
means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule,
regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation
or application thereof by any Governmental Authority, (c) adjustments to the Regulation D reserve requirements (including, without
limitation, all basic, marginal, emergency, supplemental, special or other reserves and taking into account any transitional adjustments
or other scheduled changes in reserve requirements) announced by the Board of Governors of the Federal Reserve, (d) the making or
issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority, or (e) the
Loan being classified as an HVCRE exposure; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank
Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith
and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee
on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant
to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued (regardless
of whether currently in force and effect).
“Change Order”
means any amendment, supplement, change or other modification (of whatever nature or form) to (1) the Plans and Specifications, (2) the
Budget or (3) any Construction Agreement that would result in an amendment, supplement, change or other modification to the Plans
and Specifications and/or the Budget.
“Clearing Account”
has the meaning set forth in Section 3.2.1(a).
“Clearing Account
Agreement” means any account and control agreement or other similar agreement entered into among Administrative Agent, Borrower,
Mortgage Borrower and Clearing Account Bank pursuant to Article III in form and substance reasonably acceptable to Administrative
Agent, as the same may be amended, replaced, supplemented or otherwise modified from time to time.
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“Clearing Account
Bank” has the meaning set forth in Section 3.2.1(a).
“Closing Date”
means the date hereof.
[“Closing Date Minimum
Equity Requirement” means the direct and indirect owners in Borrower and Mortgage Borrower, in the aggregate, have invested
at least the greater of (i) $360,000,000 of cash equity in the Project as determined by Administrative Agent (inclusive of sums paid
for the acquisition of the Property) and (ii) an amount equal to fifteen percent (15%) of the As-Completed Appraised Value.]
“C/O Requirement
Trigger” means, with respect to an individual Building, either (a) Spec Suite Substantial Completion of all Spec Suites
in such Building as reasonably approved by Administrative Agent under Section 5.8.27 or (b) execution by Mortgage Borrower
and a prospective tenant of a letter of intent for a Lease in such Building.
“Code”
means the Internal Revenue Code of 1986, as amended.
“Collateral”
has the meaning set forth in the Pledge Agreements.
“Cold Shell Description”
means the description of the Construction Improvements set forth on Schedule XX attached hereto and made a part hereof.
“Collateral Accounts”
means, collectively, the Clearing Account, the Cash Management Account, the Reserve Accounts, the Deficiency Account, the Loan Advance
Reserve Account, and all other accounts now or hereafter pledged to Administrative Agent and/or Lenders pursuant to this Agreement, or
any other Loan Document (including, without limitation, pursuant to any documents hereafter executed and delivered by Borrower in connection
with the Loan).
“Commercially Reasonable
Efforts” means, with respect to Borrower, Mortgage Borrower or Guarantor, as applicable, the diligent use of all commercially
reasonable efforts in good faith and with reasonable continuity taking into account the interests of Secured Party, including, if commercially
reasonable, the commencement and prosecution of litigation or other enforcement of Borrower’s, Mortgage Borrower’s and/or
Guarantor’s rights under applicable agreements, at law or in equity. The use of commercially reasonable efforts shall require Borrower,
Mortgage Borrower’s and Guarantor to disregard the interests of its Affiliates (to the extent permitted by applicable Legal Requirements).
Borrower’s, Mortgage Borrower’s or Guarantor’s lack of funds to pay for usual and customary reasonable legal and other
costs and expenses related to Borrower’s, Mortgage Borrower’s or Guarantor’s efforts to perform shall not excuse Borrower,
Mortgage Borrower or Guarantor from fully pursuing such efforts.
“Commitment”
means, with respect to each Lender the maximum amount of the Loan committed to be loaned by such Lender pursuant to the Loan Documents,
as set forth on Schedule II attached hereto (as such amount may be modified from time to time pursuant to the terms hereof) or
as set forth in any Assignment and Assumption.
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“Communications”
has the meaning set forth in Section 19.6(c).
“Completion”,
“Completed” and “Complete” each means, with respect to the Project, (i) Substantial Completion
shall have occurred, (ii) all Punchlist Items with respect thereto have been fully completed and (iii) final lien waivers substantially
in form and substance of Exhibit H-1 (or, with respect to the General Contractor, Exhibit H-2) hereto from all
contractors who performed work in connection with the Required Improvements have been received by Administrative Agent and the Construction
Consultant.
“Completion Guaranty”
means that certain Mezzanine Completion Guaranty, dated as of the Original Closing Date, made by Guarantor in favor of Secured Party,
as amended by that certain First Amendment to Mezzanine Completion Guaranty dated as of November 18, 2024 and that certain Second
Amendment to Mezzanine Completion Guaranty dated as of the Closing Date, as the same may be further amended, replaced, supplemented or
otherwise modified from time to time.
“Component”
means, individually and/or collectively, as the context may require, (i) the Conversion Component, (ii) the Construction Component,
(iii) intentionally omitted and (iv) intentionally omitted, which Components collectively constitute the entirety of the Required
Improvements.
“Component Substantial
Completion” means, (a) with respect to the Conversion Component, the occurrence of each of the following, as determined
by Administrative Agent in its sole but good faith discretion:
(i) the
development, construction and equipping of the Required Improvements comprising such Component shall have been one hundred percent (100%)
completed substantially in accordance with the applicable Plans and Specifications, subject to completion of any Punchlist Items with
respect thereto, and in accordance with the Loan Documents, all Construction Permits applicable thereto and Legal Requirements in all
material respects;
(ii) intentionally
omitted;
(iii) Administrative
Agent has received a certificate from Architect that the Required Improvements have been completed substantially in accordance with the
Plans and Specifications, and Construction Consultant has concluded in its reasonable discretion that such certificate is accurate in
form and substance; and
(iv) final
(or otherwise unconditional) lien waivers substantially in form and substance of Exhibit H-1 (or, with respect to the General
Contractor, Exhibit H-2) hereto from all contractors who performed work (excluding Punchlist Items and Retainage that, as
of the date of Substantial Completion, are actually being withheld in accordance with the terms of the Loan Documents and except with
respect to disputed amounts that have been fully bonded to the reasonable satisfaction of Administrative Agent) in connection with the
Required Improvements comprising such Component have been received by Administrative Agent and the Construction Consultant, or other arrangements
have been made which are satisfactory to Administrative Agent and Construction Consultant with respect thereto.
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or (b) with respect to the Construction
Component,
(i) the
development, construction and equipping of the Required Improvements comprising such Component shall have been one hundred percent (100%)
completed substantially in accordance with the portion of applicable Plans and Specifications described in the Cold Shell Description,
subject to completion of any Punchlist Items with respect thereto, and in accordance with the Loan Documents, all Construction Permits
applicable thereto and Legal Requirements in all material respects; and
(ii) final
(or otherwise unconditional) lien waivers substantially in form and substance of Exhibit H-1 (or, with respect to the General
Contractor, Exhibit H-2) hereto from all contractors who performed work (excluding Punchlist Items and Retainage that, as
of the date of Substantial Completion, are actually being withheld in accordance with the terms of the Loan Documents and except with
respect to disputed amounts that have been fully bonded to the reasonable satisfaction of Administrative Agent) in connection with the
Required Improvements comprising such Component have been received by Administrative Agent and the Construction Consultant, or other arrangements
have been made which are satisfactory to Administrative Agent and Construction Consultant with respect thereto.
or (c) with respect to the Required
Improvements other than the Conversion Component and the Construction Component:
(i) the
development, construction and equipping of the Required Improvements comprising such Component shall have been one hundred percent (100%)
substantially completed, subject to completion of any Punchlist Items with respect thereto, and in accordance with the Loan Documents,
all Construction Permits applicable thereto and Legal Requirements in all material respects; and
(ii) final
(or otherwise unconditional) lien waivers substantially in form and substance of Exhibit H-1 (or, with respect to the General
Contractor, Exhibit H-2) hereto from all contractors who performed work (excluding Punchlist Items and Retainage that, as
of the date of Substantial Completion, are actually being withheld in accordance with the terms of the Loan Documents and except with
respect to disputed amounts that have been fully bonded to the reasonable satisfaction of Administrative Agent) in connection with the
Required Improvements comprising such Component have been received by Administrative Agent and the Construction Consultant, or other arrangements
have been made which are satisfactory to Administrative Agent and Construction Consultant with respect thereto.
“Connection Income
Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise
Taxes or branch profits Taxes.
“Consent of Construction
Management Agreement” means that certain Consent of Construction Manager and Subordination of Construction Management Fees,
dated as of January 1, 2025, executed and delivered by Borrower, Mortgage Borrower, Guarantor and Construction Manager to Secured
Party, as the same may be amended, replaced, supplemented or otherwise modified from time to time in accordance with the terms thereof
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“Consent of General
Contractor Agreement” means individually or collectively, as the context may require, (i) that certain Consent of General
Contractor and Subordination of General Contractor Fees, dated as of the Original Closing Date, executed and delivered by Borrower, Mortgage
Borrower and Wise Construction Corporation to Secured Party, as the same may be amended, replaced, supplemented or otherwise modified
from time to time in accordance with the terms thereof and (ii) that certain Consent of General Contractor and Subordination of General
Contractor Fees, dated as of the Closing Date, executed and delivered by Borrower, Mortgage Borrower and Tishman Construction Corporation
of Massachusetts d/b/a Aecom Tishman to Secured Party, as the same may be amended, replaced, supplemented or otherwise modified from time
to time in accordance with the terms thereof
“Consent of Leasing
Agency Agreement” means that certain Consent of Leasing Agent and Subordination of Leasing Fees, dated as of the Original Closing
Date, executed and delivered by Borrower, Mortgage Borrower and Colliers International New England, LLC to Secured Party, as the same
may be amended, replaced, supplemented or otherwise modified from time to time in accordance with the terms thereof
“Consent of Management
Agreement” means, individually or collectively, as the context may require, (i) that certain Consent of Manager and Subordination
of Management Fees, dated as of the Original Closing Date, executed and delivered by Borrower, Mortgage Borrower and Manager to Secured
Party, as the same may be amended, replaced, supplemented or otherwise modified from time to time in accordance with the terms thereof
and (ii) that certain Consent of Manager and Subordination of Management Fees, dated as of January 1, 2025, executed and delivered
by Borrower, Mortgage Borrower and Affiliate Manager to Secured Party, as the same may be amended, replaced, supplemented or otherwise
modified from time to time in accordance with the terms thereof.
“Consent of Parking
Management Agreement” means a Consent of Parking Manager and Subordination of Parking Management Fees, to be executed and delivered
by Borrower, Mortgage Borrower and each parking manager or operator approved by Administrative Agent to Secured Party in form and substance
reasonably approved by Administrative Agent, as the same may be amended, replaced, supplemented or otherwise modified from time to time
in accordance with the terms thereof.
“Consent of Project
Management Agreement” means individually or collectively, as the context may require, (i) that certain Consent of Project
Manager and Subordination of Project Management Fees, dated as of the Original Closing Date, executed and delivered by Borrower, Mortgage
Borrower and the CBRE, Inc. to Secured Party, as the same may be amended, replaced, supplemented or otherwise modified from time
to time in accordance with the terms thereof and (ii) that that certain Consent of Project Manager and Subordination of Project Management
Fees, dated as of the Original Closing Date, executed and delivered by Borrower, Mortgage Borrower and Leggat McCall Properties LLC to
Secured Party, as the same may be amended, replaced, supplemented or otherwise modified from time to time in accordance with the terms
thereof
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“Consent of Property
Operating Agreement” means, individually and/or collectively, as the context may require, (i) with respect to any Construction
Management Agreement, a Consent of Construction Management Agreement, (ii) with respect to any Project Management Agreement, a Consent
of Project Management Agreement, (iii) with respect to any Management Agreement, a Consent of Management Agreement, (iv) with
respect to any Leasing Agency Agreement, a Consent of Leasing Agency Agreement and (v) with respect to any Parking Management Agreement,
a Consent of Parking Management Agreement.
“Construction Agreement”
means, individually and/or collectively, as the context may require, any contract between Mortgage Borrower, an Affiliate of Mortgage
Borrower, Architect, Engineer or General Contractor and any other Work Provider, in each case relating to the construction of the Required
Improvements, as each of the same may be amended, replaced, supplemented or otherwise modified from time to time in accordance with the
terms of the Loan Documents, including, without limitation, each Construction Management Agreement, each Project Management Agreement,
each Architect Agreement, each Engineer Agreement, each agreement with any other Design Professional, the General Contractor Agreement
and any other Trade Contract.
“Construction Component”
has the meaning set forth in the definition of Required Improvements.
“Construction Consultant”
means Marx Okubo or such other Person as may be designated and engaged by Administrative Agent, from time to time, as construction consultant
to advise, consult and render reports to Administrative Agent and Lenders concerning the status of the development and construction of
the Required Improvements, which Person shall be unaffiliated with Administrative Agent and the Lenders. Administrative Agent agrees that
so long as there is no Event of Default continuing, the Construction Consultant shall always be the same Person designed and engaged to
be the “Construction Consultant” as defined in the Mezzanine Loan Agreement.
“Construction Consultant
Fee Cap” means $12,500 per month.
“Construction Management
Agreement” means that certain Property Management Agreement dated as of December 31, 2024, as the same may be amended,
replaced, supplemented or otherwise modified from time to time in accordance with the terms hereof
“Construction Manager”
means IQHQ Construction Management, LP, a Delaware limited partnership.
“Construction Permits”
means, individually and/or collectively, as the context may require, all authorizations, consents and approvals, licenses and permits
given or issued by Governmental Authorities (including, without limitation, the Cambridge Inspectional Services Department and, if applicable,
the Massachusetts Office of Public Safety and Inspections) which are required for the construction and development of the Required Improvements
in accordance with all Legal Requirements and the Plans and Specifications, and for the performance and observance of all obligations
and agreements of Borrower contained herein (or of Mortgage Borrower contained in the Mortgage Loan Documents) or in the other Loan Documents
relating to the development and construction of the Required Improvements.
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“Construction Schedule”
means a projected schedule for the progress of the development and construction of the Required Improvements setting forth (i) the
monthly projected Advances of the Loan throughout the construction period and (ii) a construction progress schedule reflecting, among
other things, the anticipated dates of completion of and the timing of disbursements of incremental amounts of various subcategories of
the Budget, all in such form and containing such details as Administrative Agent shall require in its reasonable discretion, and which
shall include, without limitation, a trade by trade breakdown of the estimated periods of commencement and completion of the specific
work to be completed in connection with the completion of the Required Improvements substantially in accordance with the Plans and Specifications,
and in compliance with all Legal Requirements.
“Construction Update
Qualification” means that to the extent updates, amendments and/or modifications of any of the following are required or appropriate
to conform such items to the scope of the Required Improvements, and representations, warranties and/or covenants contained herein and/or
in the other Loan Documents are deemed modified or waived, as appropriate, to take into account that such updates, amendments and/or modifications
have not been implemented, for any period prior to the first Subsequent Advance: Construction Management Agreement, each Project Management
Agreement, each Architect Agreement, each Engineer Agreement, each agreement with any other Design Professional, the General Contractor
Agreement and any other Trade Contract, Construction Permits, Construction Schedule, Plans and Specifications, Budget.
“Contractor Lien”
means, with respect to any Trade Contractor, the inchoate Lien of such Trade Contractor under the Trade Contract to which such Trade Contractor
is a party in accordance with applicable Legal Requirements, provided that each “Contractor Lien” expressly
excludes any actual Lien recorded by or on behalf of any Trade Contractor against the Property.
“Control”
means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of the business
and affairs of a Person, whether through ownership of beneficial interests, voting securities, by contract or otherwise, and the terms
“Controlled”, “Controlling” and “Common Control” shall have correlative meanings
(it being acknowledged that a Person shall not be deemed to lack Control of another Person if certain decisions are subject to “major
decisions” consent or approval rights of limited partners, shareholders or members, as applicable).
“Conversion Component”
has the meaning set forth in the definition of Required Improvements.
“Cost Savings”
means and shall be determined as follows and provided that, in each case, such Cost Savings does not result in a diminishment or
reduction in the quality, scope or functionality, other than to a de minimis extent in the reasonable determination of Administrative
Agent, of the Required Improvements: (a) in the event that the specific work which is the subject of a Line Item (other than any
Line Item for Debt Service and Mortgage Debt Service, if any) shall be reasonably determined by Administrative Agent to have been completed
without the expenditure of the entire amount allocated in the Budget to such Line Item, and all Design Professionals, Trade Contractors,
subcontractors and other Persons have been paid in full for work performed and materials provided with respect to the construction and
development of the Required Improvements which is the subject of such Line Item, the difference between the amount of such Line Item in
the Budget and the amount so expended for such Line Item shall be deemed to be a Cost Saving or (b) the amount of cost savings for
any Line Item, if any, that Borrower otherwise demonstrates to the reasonable satisfaction of Administrative Agent.
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“Costs”
means, collectively, all hard and soft costs and expenses required or incurred for Completion (whether or not set forth in the Budget),
including, without limitation, all costs to pay Debt Service and operating expenses and Mortgage Debt Service (if any); provided,
however, in no event shall Costs include the payment of any return on any invested capital by Borrower or Mortgage Borrower or
any direct or indirect owner of Borrower or Mortgage Borrower.
“Customer In Good
Standing” means a Person, which, at the time such Person becomes a Lender or Eligible Acquisition Entity pursuant to the terms
of this Agreement and within the immediately preceding seven (7) years (i) is not and has not been (nor any Affiliate of such
Person is or has been) the subject of (1) a bankruptcy, insolvency, reorganization relating to insolvency or other relief for debtors
or relief of debtors proceeding, or (2) a workout or restructuring on account of its obligations and liabilities to Administrative
Agent, any Lender and/or an Affiliate thereof and that has not been resolved to the satisfaction, in its sole discretion, of Administrative
Agent or such Lender, as applicable; (ii) has not (nor any Affiliate of such Person has) otherwise commenced, or been a participant
in, any legal or other adversarial proceeding (including pursuant to a counterclaim or cross-claim) actually brought by such Person (or
such person’s Affiliate) against Administrative Agent, any Lender, and/or such Affiliate thereof, (iii) has (and such Person’s
Affiliate has) otherwise paid and performed all of its obligations and liabilities to Administrative Agent and/or any of its Affiliates
in accordance with the respective terms thereof or otherwise as approved by Administrative Agent and/or such Affiliate, and (iv) as
to which Administrative Agent, any Lender, and/or any Affiliate thereof has not commenced an adversarial legal proceeding against such
Person (or any Affiliate thereof).
“Cut-Off Date”
has the meaning set forth in Section 6.4.4.
“Data Room”
means any secure online data room to be established by Administrative Agent with respect to the Loan.
“Debt”
means, collectively, the indebtedness, monetary liabilities and obligations set forth in the following clauses (a) through
(d): (a) payment of the indebtedness evidenced by the Note plus all interest and all fees, including, without limitation,
the Additional Interest (if any), the Exit Fee and any Breakage Costs payable thereunder, (b) payment of all liabilities and obligations
contained in the Pledge Agreements and the Mortgage and any extensions, renewals or modifications thereof, (c) payment of all liabilities
and obligations of Borrower contained in each of the other Loan Documents; and (d) without limiting the foregoing, payment of all
indebtedness, liabilities, and amounts from time to time incurred by any Secured Party with respect to which Borrower has any reimbursement,
payment or indemnification obligation pursuant to and in accordance with the terms and conditions of the Loan Documents, even if the aggregate
amount of the monetary obligation outstanding at any one time exceeds the face amount of the Note.
“Debt Service”
means, with respect to any particular period of time, scheduled interest payments under the Loan Documents.
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“Debt-Service Coverage
Ratio (Aggregate)” means, as of the last day of the calendar quarter immediately preceding the applicable date of determination,
the ratio of (a) the Underwritten NOI for the twelve (12) month period ending with the last day of such calendar quarter to (b) the
annual interest payments payable during such period under the Loan Documents and the Mortgage Loan Documents, using as the applicable
rate of interest for the purpose of such interest calculation with respect to the Loan, the then Applicable Rate, and with respect to
the Mortgage Loan, the then Applicable Rate (as such term is defined in the Mortgage Loan Documents).
“Debt-Service Coverage
Ratio (Mortgage Only)” means, as of the last day of the calendar quarter immediately preceding the applicable date of determination,
the ratio of (a) the Underwritten NOI for the twelve (12) month period ending with the last day of such calendar quarter to (b) the
annual interest payments payable during such period under the Loan Documents, using as the applicable rate of interest for the purpose
of such interest calculation the then interest rate under the Mortgage Loan.
“Debt-Service Cure”
means (a) no Event of Default shall be continuing and (b) the achievement of (i) a Debt-Service Coverage Ratio (Aggregate)
of at least 1.15:1.00 and (ii) a Debt-Service Coverage Ratio (Mortgage Only), if applicable, of at least 1.73:1.00, for the two (2) consecutive
calendar quarters immediately preceding the date of determination based upon the trailing twelve (12) month period immediately preceding
such date of determination.
“Debt Service Disbursement
Amount” means with respect to a Payment Date collectively, (A) funds sufficient to pay the Debt Service due on such Payment
Date, (B) funds sufficient to pay any interest accruing at the Default Rate and Late Payment Charges, if any, with respect to the
Loan, and (C) any administrative agency fees due on the then applicable Payment Date, after giving credit for the following amounts:
(x) Loan proceeds and Mortgage Loan proceeds then available under this Agreement and the Mortgage Loan Agreement, as applicable,
for the payment of Debt Service, (y) Deficiency Collateral then available under this Agreement for the payment of Debt Service, and
(z) amounts then on deposit in the Debt Service Reserve Account.
“Debt Service Reserve
Account” has the meaning set forth in Section 3.2.1(e)(iii).
“Debt Service Reserve
Amount” means, as of the date of determination, an amount determined by Administrative Agent in its sole good faith discretion
to be sufficient to pay the aggregate Debt Service due and payable during the applicable Extension Term, taking into consideration the
actual or underwritten cash flow from Rents and other Operating Income, less (i) the amount on deposit in the Debt Service
Reserve Account, and (ii) the amount of funds deposited into the Loan Advance Reserve Account under Section 2.5(d) into
and applied to the Debt Service Reserve Account in connection with the exercise of an Extension Option, in each case, as of the applicable
Maturity Date.
“Debt Service Reserve
Funds” has the meaning set forth in Section 16.3(a).
“Debt-Service Trigger
Event” means (i) a Debt-Service Coverage Ratio (Aggregate) of less than 1.15:1.00 or (ii) a Debt-Service Coverage
Ratio (Mortgage Only), if applicable, of less than 1.73:1.00, in either case, on any date of determination for the calendar quarter immediately
preceding the date of such determination, based upon the trailing twelve (12) month period immediately preceding such date of determination,
as determined by Administrative Agent.
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“Debt-Service Trigger
Period” means the period commencing on the occurrence of a Debt-Service Trigger Event and continuing until the occurrence of
a Debt-Service Cure.
“Debt-Service Trigger
Period Prepayment” has the meaning set forth in Section 2.13.3.
“Debt Yield (Aggregate)”
means, as of the last day of the calendar month immediately preceding the applicable date of determination, the quotient (expressed as
a percentage) obtained by dividing (a) Underwritten NOI as of such date by (b) the sum of (i) the sum of (A) the outstanding
principal amount of the Loan as of the date of such calculation plus (B) any remaining unfunded principal amount of the Loan for
which Commitments have not been terminated in accordance with Section 2.5(d), and (ii) the sum of (A) the outstanding
principal amount of the Mortgage Loan plus (B) any remaining unfunded principal amount of the Mortgage Loan for which commitments
under the Mortgage Loan have not been terminated. Administrative Agent’s calculation of the Debt Yield (Aggregate), and all component
calculations, shall be conclusive and binding on Borrower absent manifest error.
“Default”
means the occurrence of any event hereunder or under any other Loan Document which, but for the giving of notice or passage of time, or
both, would be an Event of Default.
“Default Rate”
means, with respect to the Loan, a rate per annum equal to the lesser of (a) the sum of the Applicable Rate, plus five percent (5%)
per annum and (b) the Maximum Legal Rate, all of which shall be payable currently.
“Defaulting Lender”
means any Lender that (a) has failed, within two (2) Business Days of the date required to be funded or paid, to (i) fund
any portion of its Commitment, or (ii) pay over to any Secured Party any other amount required to be paid by it; (b) has notified
Borrower or Administrative Agent in writing, or has made a public statement, to the effect that it does not intend or expect to comply
with any of its funding obligations under the Loan Agreement or generally under other agreements in which it commits to extend credit;
(c) has failed, within three (3) Business Days after request by Administrative Agent, acting in good faith, to provide a certification
in writing from an authorized officer of such Lender that it will comply with its obligations to fund under the Loan Documents; provided
that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c), upon Administrative Agent’s receipt of
such certification in form and substance satisfactory to Administrative Agent; (d) has, or has a direct or indirect parent company
that has, become the subject of a Bail-In Action; (e) has become the subject of a Bankruptcy Action; or (f) is a Prohibited
Transferee at the time such Lender acquires its interest in the Loan, provided no Event of Default is then continuing.
“Deficiency”
has the meaning set forth in Section 2.25(c).
“Deficiency Account”
has the meaning set forth in Section 2.25(e).
“Deficiency Collateral”
has the meaning set forth in Section 2.25(d)(iii).
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“Deficiency Waiver
Amount” means an amount equal to the amount that was required to be funded by the applicable Defaulting Lender or any Mortgage
Defaulting Lender, as applicable, with respect to the applicable Advance.
“Deficiency Waiver
Conditions” means, (i) as a condition precedent to the applicable Advance, Borrower has caused Mortgage Borrower to deposit
with Administrative Agent or the Mortgage Administrative Agent the Deficiency Waiver Amount on the applicable Advance Date and (ii) Borrower
shall be diligently proceeding to replace such Defaulting Lender or Mortgage Defaulting Lender, as applicable, pursuant to the terms of
Section 15.10(e)(ii) of this Agreement or the Mortgage Loan Agreement.
“Deficiency Waiver
Period” means, with respect to each Lender or any Mortgage Lender, as applicable, the period commencing on the date that such
Defaulting Lender or any Mortgage Defaulting Lender, as applicable, provides notice to Borrower or Mortgage Borrower, as applicable, that
such Defaulting Lender or any Mortgage Defaulting Lender, as applicable, first fails to fund an Advance or any Mortgage Loan Advance,
as applicable, as and when required pursuant to this Agreement or any Mortgage Loan Agreement, as applicable, and ending on the date that
is ninety (90) days after the date of such failure.
“Design Architect”
means each design architect engaged by (or on behalf of) Mortgage Borrower with respect to the Project or any Component and set forth
on Schedule VII hereto, together with any successor, replacement or additional Architect engaged by (or on behalf of) Mortgage
Borrower to serve in such capacity.
“Design Professionals”
means, individually and/or collectively, as the context may require, all architects, engineers, consultants and similar professionals
engaged by or on behalf of Mortgage Borrower, any Affiliate of Mortgage Borrower, Architect, Engineer or General Contractor in connection
with the design of the Project or any Component, including without limitation, each Architect and each Engineer.
“Designated Eligible
Assignee” has the meaning set forth in Section 2.18(b)(ii).
“Determination Date”
means, with respect to any determination of the Applicable Rate applicable to an Interest Period, the date that is two (2) U.S. Government
Securities Business Days preceding the first day of the applicable Interest Period.
“Development Rights”
has the meaning set forth in the Recitals.
“Disclosure Documents”
has the meaning set forth in Section 14.3.1.
“Draw Request”
has the meaning set forth in Section 2.22(a).
“EEA Financial Institution”
means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of
an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in
clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary
of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision
with its parent.
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“EEA Member Country”
means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority”
means any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including
any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Electing Lender”
has the meaning set forth in Section 15.10(c).
“Electronic System”
means any electronic system, including e-mail, e-fax, Intralinks, ClearPar®, Debt Domain, Syndtrak and any other Internet or
extranet-based site, whether such electronic system is owned, operated or hosted by Administrative Agent or any other Person, providing
for access to data protected by passcodes or other security system.
“Eligibility Requirements”
means, with respect to any Person, (i) that such Person has total assets located in the United States of America in excess of the
greater of (a) $500,000,000 and (b) an amount equal to three (3) times the remaining unfunded Commitment of the applicable
Person as of the applicable date of determination after giving effect to an assignment of an interest in the Loan to such Person, (ii) that
such Person has either (a) capital/statutory surplus or shareholders’ equity of at least the greater of (I) $250,000,000
or (II) an amount equal to two (2) times the remaining unfunded Commitment of the applicable Person as of the applicable date
of determination after giving effect to an assignment of an interest in the Loan to such Person, or (b) market capitalization of
at least the greater of (I) $250,000,000, and (II) an amount equal to two (2) times the remaining unfunded Commitment of
the applicable Person as of the applicable date of determination after giving effect to an assignment of an interest in the Loan to such
Person and (iii) such Person is regularly engaged in the business of making or owning (or, in the case of a pension advisory firm,
asset manager, registered investment advisor or manager or similar fiduciary, regularly engaged in managing investments in) commercial
real estate construction loans similar in size and nature to the Loan (including mezzanine construction loans to direct or indirect owners
of commercial properties, which loans are secured by pledges of direct or indirect ownership interests in the owners of such commercial
properties) or developing and operating commercial properties similar in size and nature to the Property.
“Eligible Account”
means a separate and identifiable account from all other funds held by the holding institution that is either (a) an account or accounts
(or subaccounts thereof) maintained with a federal or state-chartered depository institution or trust company which complies with the
definition of Eligible Institution or (b) a segregated trust account or accounts (or subaccounts thereof) maintained with a federal
or state chartered depository institution or trust company acting in its fiduciary capacity that has a Moody’s rating of at least
“Baa2” and which, in the case of a state chartered depository institution or trust company, is subject to regulations substantially
similar to 12 C.F.R. §9.10(b), having in either case a combined capital and surplus of at least $100,000,000.00 and subject to supervision
or examination by federal and state authority. An Eligible Account shall not be evidenced by a certificate of deposit, passbook or other
instrument.
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“Eligible Acquisition
Entity” means a Person that (a) is not a Prohibited Person, (b) is a Customer in Good Standing and (c) (i) whose
securities are approved for listing on (x) the New York Stock Exchange, AMEX, NASDAQ or any other nationally recognized securities
exchange, or (y) the Toronto Stock Exchange, the Frankfurt Stock Exchange, the London Stock Exchange, Euronext, the Tokyo Stock Exchange
or the Korea Exchange (KRX), and shall include a majority owned subsidiary of any such Person or any operating partnership through which
such Person conducts all or substantially all of its business and has a market capitalization equal to or exceeding $5,000,000,000.00
as of the date of the applicable Transfer, (ii) only if a Transfer pursuant to Section 8.5.1(e) has not yet occurred,
has an aggregate Net Worth (as defined in the Recourse Guaranty) as of the date of the applicable Transfer equal to, or in excess of $3,000,000,000.00
or (iii) has been approved by Administrative Agent.
“Eligible Assignee”
means: (a) any Lender or any Affiliate of any Lender, or (b) one or more of the following:
(i) a
real estate investment trust, bank, saving and loan association, investment bank, insurance company, trust company, commercial credit
corporation, pension plan, pension fund or pension advisory firm, mutual fund, government entity or plan, provided that any such
Person referred to in this clause (i) satisfies the Eligibility Requirements;
(ii) an
investment company, money management firm or “qualified institutional buyer” within the meaning of Rule 144A under the
Securities Act of 1933, as amended, or an institutional “accredited investor” within the meaning of Regulation D under the
Securities Act of 1933, as amended, provided that any such Person referred to in this clause (ii) satisfies the Eligibility
Requirements;
(iii) an
institution substantially similar to any of the entities described in clause (b)(i), (b)(ii) or b(v) that
satisfies the Eligibility Requirements;
(iv) any
entity Controlling, Controlled by or under common Control with any of the entities described in clause (a), or clause (b)(i),
(b)(ii), (b)(iii) or (b)(v) of this definition that satisfies the Eligibility Requirements or whose obligations
are guaranteed pursuant to a guaranty in form and substance reasonably satisfactory to Administrative Agent (x) that is executed
and delivered by an Affiliate of such Person that satisfies the Eligibility Requirements and (y) under which each of (A) Administrative
Agent, (B) each Lender other than such Person, (C) Borrower and (D) Guarantor are an intended third party beneficiary;
or
(v) an
investment fund, limited liability company, limited partnership or general partnership (a “Permitted Investment Fund”)
where a nationally-recognized manager of investment funds investing in debt or equity interests relating to commercial real estate or
an entity that is otherwise an Eligible Assignee under clauses (b)(i), (ii), (iii) or (iv) of this
definition investing through a fund with committed capital of at least $500,000,000 acts as the general partner, managing member or fund
manager and at least 50% of the equity interests in such Permitted Investment Fund are owned, directly or indirectly, by one or more of
the following: an Eligible Assignee, an institutional “accredited investor” within the meaning of Regulation D promulgated
under the Securities Act of 1933, as amended, and/or a “qualified institutional buyer” or both within the meaning of Rule 144A
promulgated under the Securities Exchange Act of 1934, as amended, provided such institutional “accredited investors”
or “qualified institutional buyers” that are used to satisfy the 50% test set forth in this clause (v) satisfy
the financial tests in clause (i) of the definition of Eligibility Requirements;
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Notwithstanding the foregoing,
unless consented to by Administrative Agent in writing in its sole discretion, no Person shall be (or deemed to be) an Eligible Assignee
unless such Person is (i) not a Prohibited Person and (ii) a Customer in Good Standing.
“Eligible Institution”
means (a) a depository institution or trust company insured by the Federal Deposit Insurance Corporation, (i) the short term
unsecured debt obligations or commercial paper of which are rated at least “A-1+” by S&P and “P-1” by Moody’s
(or equivalent ratings) from two (2) of the Rating Agencies in the case of accounts in which funds are held for thirty (30) days
or less and (ii) the senior unsecured debt obligations of which are rated at least “A+” by S&P and “Aa3”
by Moody’s (or equivalent ratings) from two (2) of the Rating Agencies in the case of accounts in which funds are held for
more than thirty (30) days or (b) such other depository institution otherwise approved by Administrative Agent from time to time.
“Emergency Order”
means any amendment, supplement or other modification to any Construction Agreement and/or the Plans and Specifications or any departure
therefrom made by General Contractor which are required in the case of an emergency and which in the interest of expediency, General Contractor
determines should be made without obtaining the prior written consent of Mortgage Borrower, in each case, which may be made by General
Contractor without Mortgage Borrower’s approval pursuant to the General Contractor Agreement.
“Employer”
has the meaning set forth in Section 5.1.29(c).
“Engineer”
means each engineer with respect to the Project, or any Component, on the date hereof and set forth on Schedule VII hereto, together
with any successor or additional engineers engaged by (or on behalf of) Mortgage Borrower to perform any structural, mechanical, electrical
and/or soil engineering services with respect to all or any portion of the Project.
“Engineer Agreement”
means, individually and/or collectively as the context may require, (i) each engineering agreement in effect on the date hereof and
set forth on Schedule III hereto and (ii) any agreement entered into by (or on behalf of) Mortgage Borrower with an Engineer
after the date hereof with respect to the Project, or any Component, which provides for engineering services in connection with the construction
of the Required Improvements, subject to the requirements of Section 5.8.12, as the same may be amended, replaced, supplemented
or otherwise modified from time to time in accordance with the terms hereof.
“Engineer Consent”
means an Engineer’s Consent and Agreement executed and delivered by each Engineer in favor of Secured Party, in form and substance
reasonably approved by Administrative Agent.
“Environmental Indemnity”
means that certain Mezzanine Environmental Indemnity Agreement, dated as of the Original Closing Date, made by Borrower and Guarantor
in favor of Secured Party, as amended by that certain Amendment to Mezzanine Environmental Indemnity Agreement dated as of the Closing
Date, as the same may be amended, replaced, supplemented or otherwise modified from time to time.
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“Equipment”
means all “equipment,” as such term is defined in Article 9 of the Uniform Commercial Code, now owned or hereafter acquired
by Mortgage Borrower, which is used at or in connection with the Improvements or the Land or is located thereon or therein (including,
but not limited to, all machinery, equipment, furnishings, and electronic data-processing and other office equipment now owned or hereafter
acquired by Mortgage Borrower and any and all additions, substitutions and replacements of any of the foregoing), together with all attachments,
components, parts, equipment and accessories installed thereon or affixed thereto.
“Equity Collateral
Enforcement Action” has the meaning set forth in Section 18.2(w).
“Equity Collateral
Transfer Date” has the meaning set forth in Section 18.2(w).
“Equity Maintenance
Requirement” means a prohibition on Borrower making any (i) dividend or other distribution (whether in cash, securities
or other property) with respect to any equity interests in Borrower or any subsidiary, (ii) payment (whether in cash, securities
or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation
or termination of any such equity interests in Borrower or any subsidiary or any option, warrant or other right to acquire any such equity
interests in Borrower or any subsidiary, or (iii) return or refund (or other disbursement) of any equity of Borrower in the Property,
including, without limitation, any equity internally generated by the Property or the development thereof (any of the foregoing a “Restricted
Payment”); provided, that any distribution of excess funds transferred to the Mortgage Borrower Operating Account pursuant
to Section 3.2.1(b) shall not be considered a Restricted Payment or violation of the Equity Maintenance Requirement.
“ERISA”
means the United States Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated
and the rulings issued thereunder.
“ERISA Affiliate”
means any trade or business (regardless of whether incorporated) that is a member of the same controlled group of corporations or group
of trades or businesses under common control with Borrower, Mortgage Borrower or Guarantor, or is treated as a single employer together
with Borrower, Mortgage Borrower or Guarantor, under Section 414 of the Code or Title IV of ERISA.
“ESA” has
the meaning set forth in Section 4.1.44(e).
“Escrowed Public
Access Improvements” has the meaning set forth in Section 5.3(k).
“Estimated Cost of
Construction” has the meaning set forth in Section 2.25(c).
“EU Bail-In Legislation
Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in
effect from time to time.
“Event of Default”
has the meaning set forth in Section 17.1(a).
“Excess Cash Flow
Funds” has the meaning set forth in Section 16.7(a).
“Excess Cash Flow
Funds Account” has the meaning set forth in Section 3.2.1(e)(vi).
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“Excluded Liabilities”
means any consequential, punitive, special, exemplary or other indirect damages unless any third party makes any claim or demand upon
Administrative Agent or Lender for damages on account of consequential, punitive, special or other indirect damages and any expenses and
liabilities caused by the gross negligence, fraud or willful misconduct of Administrative Agent, Lenders and/or their respective Affiliates.
“Excluded Taxes”
means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a
Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each
case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case
of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or
(ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable
to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the
date on which (i) such Lender acquires such interest in the Loan or Commitment or (ii) such Lender changes its lending office,
except in each case to the extent that, pursuant to Section 2.17, amounts with respect to such Taxes were payable either to
such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its
lending office, (c) Taxes attributable to such Recipient’s failure to comply with Section 2.17.6, and (d) any
withholding Taxes imposed under FATCA.
“Exculpated Parties”
has the meaning set forth in Section 18.1.
“Excusable Delay”
means any delay or number of delays due to conditions beyond the reasonable control of Borrower, Mortgage Borrower and/or their respective
Affiliates (in each case, so long as Borrower and/or Mortgage Borrower uses Commercially Reasonable Efforts to mitigate the effect thereof),
including, without limitation, strikes, stays, judgments, orders, decrees, labor disputes, governmental restrictions, acts of God, the
elements, enemy action, cyber attack, terrorism, civil commotion, fire, casualty, accidents, pandemics or epidemics generally affecting
the municipality in which the Property is located that first arise (or materially worsen) after the Closing Date, shortages of, or inability
to obtain, labor, utilities or material; provided, however, that (i) any lack of funds in and of itself shall not be
deemed to be a condition beyond the reasonable control of Borrower and/or Mortgage Borrower and (ii) any failure by any contractor
or sub-contractor to perform its obligations under any contractor or sub-contractor agreement in and of itself shall not be deemed to
be a condition beyond the reasonable control of Borrower and/or Mortgage Borrower (unless due to the bankruptcy or insolvency of such
contractor or sub-contractor); provided that in no event shall Excusable Delay exceed one hundred twenty (120) days in the aggregate;
provided, further, that, Borrower acknowledges that, as of the Closing Date, no Excusable Delay exists as a result of the
COVID-19 pandemic (it being agreed that in the event there is a material adverse change that results in shelter-in-place orders, moratoria
or unavailability of materials directly as a result of COVID-19, such events shall constitute Excusable Delay).
“Existing Leasing
Agency Agreement” has the meaning set forth in the definition of the term “Leasing Agency Agreement”.
“Existing Trade Contracts”
means, individually and/or collectively, as the context may require, the Trade Contracts in effect on the Closing Date, as more particularly
described on Schedule III.
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“Exit Fee”
means an amount equal to 0.50% of the amount of the Loan that is being or is required to be repaid, due and payable from time to time
upon the earlier to occur of repayment or prepayment of any portion of the Principal Amount in accordance with the terms of this Agreement
or when due (including on the Maturity Date).
“Extension Cash Collateral”
means cash in an amount that, if applied to the outstanding principal balance of the Loan on the first day of the Extension Term with
respect to which it is delivered pursuant to (i) Section 2.5(b)(iv), would result in satisfaction of the applicable As-Stabilized
Loan-to-Value Ratio (Aggregate) and/or As-Is Loan-to-Value Ratio (Aggregate) requirement for the Extension Term as to which it is delivered
and (ii) Section 2.5(b)(vi), would result in satisfaction of the applicable Debt-Service Coverage Ratio (Aggregate) requirements
for the Extension Term as to which it is delivered, as applicable.
“Extension Fee”
means an amount equal to thirty-five hundredths of one percent (0.35%) of the sum of (A) outstanding principal amount of the Loan
as of the applicable Maturity Date plus (B) any remaining unfunded principal amount of the Loan for which Commitments have not been
terminated in accordance with Section 2.5(d) as of the applicable Maturity Date.
“Extension LC”
means an irrevocable, auto-renewing, unconditional, transferable, clean sight draft standby letter of credit in an amount as required
hereunder having an initial term of not less than one (1) year and with automatic renewals for one (1) year periods, for which
Borrower shall not have any reimbursement obligation and which is not secured by the Property or any other property pledged to secure
the Loan, in favor of Administrative Agent, or, at Administrative Agent’s option, its designee, and entitling Administrative Agent
or its designee to draw thereon in New York, New York based on a statement that Administrative Agent or its designee has the right to
draw thereon executed by an officer or authorized signatory of Administrative Agent or its designee, and issued by a domestic Approved
Bank or the U.S. agency or branch of a foreign Approved Bank. Each Extension LC shall be in an amount that, if applied to the outstanding
principal balance of the Loan on the first day of the Extension Term with respect to which it is delivered pursuant to (i) Section 2.5(b)(iv),
would result in satisfaction of the applicable As-Stabilized Loan-to-Value Ratio (Aggregate), As-Stabilized Loan-to-Value Ratio (Mortgage
Only), As-is Loan-to-Value Ratio (Aggregate) and/or As-is Loan-to-Value Ratio (Mortgage Only) requirement for the Extension Term as to
which it is delivered and (ii) Section 2.5(b)(vi), would result in satisfaction of the applicable Debt-Service Coverage
Ratio (Aggregate) and Debt-Service Coverage Ratio (Mortgage Only) requirements for the Extension Term as to which it is delivered, as
applicable.
“Extension Option”
means the First Extension Option and/or the Second Extension Option, as applicable.
“Extension Prepayment”
means a repayment of a portion of the Loan pursuant to Section 2.5(b)(iv) and/or Section 2.5(b)(vi).
“Extension Term”
means, individually and/or collectively, as the context may require, the First Extension Term and the Second Extension Term.
27
“FATCA”
means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively
comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any
agreements entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices
adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections
of the Code.
“FinCEN”
has the meaning set forth in Section 2.5(b)(xx).
“FF&E”
means fixtures, furnishings, equipment, furniture, and other items of tangible personal property now or hereafter located in or on the
Property or the Improvements or used in connection with the use, occupancy, operation and maintenance of all or any part of the Property,
including, without limitation, appliances, machinery, equipment, signs, artwork, furnishings and equipment, and specialized equipment
for kitchens, laundries, bars, restaurant, public rooms, health and recreational facilities, all partitions, screens, awnings, shades,
blinds, floor coverings, hall and lobby equipment, heating, lighting, plumbing, ventilating, refrigerating, incinerating, elevators, escalators,
air conditioning and communication plants or systems with appurtenant fixtures, vacuum cleaning systems, call or beeper systems, security
systems, sprinkler systems and other fire prevention and extinguishing apparatus and materials, and all equipment, manual, mechanical
or motorized, for the construction, maintenance, repair and cleaning of, parking areas, walks, underground ways, truck ways, driveways,
common areas, roadways, highways and streets.
“Field Order”
means any non-material amendment, supplement or other modification to any Construction Agreement and/or the Plans and Specifications or
any departure therefrom made by General Contractor by issuance of a written field order pursuant to the General Contractor Agreement in
order to resolve conflicts in such Construction Agreement, the Plans and Specifications and/or the Budget or to avoid conflicts between
different Trade Contractors, in each case, which may be made by General Contractor without Mortgage Borrower’s approval pursuant
to the General Contractor Agreement.
“Financial Covenants”
has the meaning set forth in the Guarantees.
“Financial Crime”
means money laundering, terrorist financing, bribery, corruption, tax evasion, embezzlement, financial fraud (including, without limitation,
bank fraud, securities fraud (including insider trading), market manipulation, mail and/or wire fraud), evasion of economic or trade sanctions,
the unlawful expropriation, confiscation or conversion of assets and/or property, and/or violations of any laws, statutes, codes, regulations
or requirements relating to such matters that are now or from time to time in force.
“First Extension
Notice” has the meaning set forth in Section 2.5(b).
“First Extension
Option” has the meaning set forth in Section 2.5(b).
“First Extension
Term” has the meaning set forth in Section 2.5(b).
“Fiscal Year”
means each twelve (12) month period commencing on January 1 and ending on December 31 during each year or the portion of any
such twelve (12) month period in the event that such a twelve (12)-month period occurs partially before or after, and partially during,
the term of the Loan.
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“Fitch”
means Fitch, Inc.
“Foreign Lender”
means a Lender that is not a U.S. Person.
“Full Replacement
Cost” has the meaning set forth in Section 6.3(a).
“Future Commitment”
has the meaning set forth in Section 15.10(d).
“GAAP”
means the generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board and
the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board (or
agencies with similar functions of comparable stature and authority within the accounting profession), or in such other statements by
such entity as may be in general use by significant segments of the U.S. accounting profession, to the extent such principles are applicable
to the facts and circumstances on the date of determination.
“General Contractor”
means, (I) with respect to the Building One Component, Wise Construction Corporation, a Massachusetts corporation, and any successor
or additional general contractor engaged by (or on behalf of) Mortgage Borrower with respect to such portion of the Project, subject to
the requirements of Section 5.8 and (II) with respect to the remainder of the Project, Tishman Construction Corporation
of Massachusetts d/b/a Aecom Tishman, a Massachusetts corporation, and any successor or additional general contractor engaged by (or on
behalf of) Mortgage Borrower with respect to such portion of the Project, subject to the requirements of Section 5.8.
“General Contractor
Agreement” means (A) with respect to the General Contractor for the Building One Component, (i) that certain Standard
Form of Agreement between Mortgage Borrower and such General Contractor, dated as of August 29, 2022, consisting of modified
versions of AIA Document A102-2007 and AIA Document A201-2007, between Mortgage Borrower and such General Contractor, together with (a) that
certain GMP Agreement, dated as of September 16, 2022, between Mortgage Borrower and such General Contractor, (b) that certain
GMP Agreement, dated as of October 5, 2022, between Borrower and General Contractor, (c) that certain GMP Agreement, dated as
of September 19, 2024, between Mortgage Borrower and such General Contractor, (d) that certain GMP Agreement, dated as of September 23,
2024, between Mortgage Borrower and such General Contractor, (e) any other documentation executed by and between Mortgage Borrower
and such General Contractor evidencing or relating to the guaranteed maximum price thereunder and (f) any guaranty of such General
Contractor’s obligations under such General Contractor Agreement provided by any Person, and (ii) any general contractor or
other agreement which may be entered into by (or on behalf of) Mortgage Borrower with any successor or additional or other General Contractor
with respect to the Building One Component, subject to the requirements of Section 5.8, as each of the foregoing in (i) and
(ii) may be amended, replaced, supplemented or otherwise modified from time to time in accordance with the terms hereof; (B) with
respect to the General Contractor for the remainder of the Project, (i) that certain Standard Form of Agreement between Mortgage
Borrower and such General Contractor, dated as of October 14, 2022, consisting of modified versions of AIA Document A102-2007 and
AIA Document A201-2007, between Mortgage Borrower and such General Contractor for the remainder of the Project, together with (a) that
certain GMP Agreement dated as of January 5, 2023, and that certain First Amendment to Construction Contract dated as of June 26,
2024 by and between Tishman Construction Corporation of Massachusetts d/b/a AECOM Tishman and Mortgage Borrower, (b) any other documentation
executed by and between Mortgage Borrower and such General Contractor evidencing or relating to the guaranteed maximum price thereunder
and (c) any guaranty of such General Contractor’s obligations under such General Contractor Agreement provided by any Person
and (ii) any general contractor or other agreement which may be entered into by (or on behalf of) Mortgage Borrower with any successor
or additional or other General Contractor with respect to all or any portion of the Project, subject to the requirements of Section 5.8,
as each of the foregoing in (i) and (ii) may be amended, replaced, supplemented or otherwise modified from time to time in accordance
with the terms hereof.
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“Gensler”
has the meaning set forth in the definition of “Architect of Record”.
“Government List”
means, collectively, each of (i) the Specially Designated Nationals and Blocked Persons Lists maintained by OFAC, (ii) any other
list of terrorists, terrorist organizations or narcotics traffickers maintained pursuant to any of the Rules and Regulations of OFAC,
and (iii) any similar lists maintained by the United States Department of State, the United States Department of Commerce, any other
United States Governmental Authority or pursuant to any Executive Order, or by the United Nations Security Council, the European Union,
any European Union member state, His Majesty’s Treasury of the United Kingdom, or other relevant sanctions authority.
“Governmental Authority”
means any court, board, agency, commission, office or other authority of any nature whatsoever for any governmental unit (foreign, federal,
state, county, district, municipal, city or otherwise) whether now or hereafter in existence.
“Gross-Up Payment”
has the meaning set forth in Section 2.19.
“Guarantees”
means, collectively, the Recourse Guaranty, the Completion Guaranty, the Carry Guaranty, and any other guaranty or indemnity delivered
in connection with the Loan from time to time.
“Guarantor”
means IQHQ, LP, a Delaware limited partnership.
“Hard Costs”
means, individually and/or collectively, as the context may require, all costs and expenses set forth in the Budget which are denominated
in the Budget as “Hard Costs”.
“Hazardous Substances”
has the meaning set forth in the Environmental Indemnity.
“HVCRE”
means High Volatility Commercial Real Estate pursuant to the Basel III regulations.
“Hypothec”
means that certain deed of hypothec entered into on December 18, 2024 by the Mortgage Borrower in favor of the Administrative Agent,
in its capacity as hypothecary representative for the benefit of Secured Party, together with any required warehouseman’s waivers
and consents obtained from Industrie Canatal Inc., a storage company, executed in connection therewith, as the same may be amended, replaced,
supplemented or otherwise modified from time to time, and which deed of hypothec grants Administrative Agent, in such capacity, a security
interest under the laws of the Province of Quebec in and to certain materials stored in such Province..
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“Indemnified Tax
Party” has the meaning set forth in Section 19.33.
“Impositions”
means all Taxes (including all ad valorem, sales (including those imposed on lease rentals), use, single business, gross receipts, value
added, intangible transaction, privilege or license or similar Taxes but excluding Excluded Taxes, income or similar Taxes in the nature
of income Taxes), governmental assessments (including all assessments for public improvements or benefits, whether or not commenced or
completed prior to the date hereof and whether or not commenced or completed within the term of this Agreement), water, sewer or other
rents and charges, excises, levies, fees (including license, permit, inspection, authorization and similar fees), and all other governmental
charges, in each case whether general or special, ordinary or extraordinary, or foreseen or unforeseen, of every character in respect
of the Collateral, the Property and/or any Rents (including all interest and penalties thereon), which at any time prior to, during or
in respect of the term hereof may be assessed or imposed on or in respect of or be a Lien upon (a) Borrower and/or Mortgage Borrower,
(b) the Property, the Collateral or any other collateral delivered or pledged to Administrative Agent in connection with the Loan,
or any part thereof, or any Rents therefrom or any estate, right, title or interest therein, or (c) any occupancy, operation, use
or possession of, or sales from, or activity conducted on, or in connection with the Property or the leasing or use of all or any part
thereof. Nothing contained in this Agreement shall be construed to require Borrower and/or Mortgage Borrower to pay any tax, assessment,
levy or charge imposed on (i) any Tenant occupying any portion of the Property, or (ii) any third party manager of the Property,
including any Manager.
“Imprest Account”
has the meaning set forth in Section 2.34(a).
“Imprest Funds”
has the meaning set forth in Section 2.34(b).
“Improvements”
means all buildings, foundations, structures, fixtures, additions, enlargements, extensions, modifications, repairs, replacements and
improvements of every kind or nature now or hereafter erected or located on the Land.
“Indebtedness”
means, with respect to any Person at any time (and without duplication), (a) indebtedness or liability of such Person for borrowed
money whether or not evidenced by bonds, debentures, notes or other instruments or services (including, without limitation, indebtedness
in the form of mezzanine debt or preferred equity), or for the deferred purchase price of property (including trade obligations); (b) obligations
of such Person as lessee under leases which should have been or should be, in accordance with the Approved Accounting Method, recorded
as capital leases; (c) current liabilities of such Person in respect of unfunded vested benefits under plans covered by Title IV
of ERISA; (d) obligations issued for, or liabilities incurred on the account of, such Person; (e) obligations or liabilities
of such Person arising under letters of credit, credit facilities or other acceptance facilities; (f) obligations of such Person
under any guarantees or other agreement to become secondarily liable for any obligation of any other Person, endorsements (other than
for collection or deposit in the ordinary course of business) and other contingent obligations to purchase, to provide funds for payment,
to supply funds to invest in any Person or otherwise to assure a creditor against loss; (g) obligations of such Person secured by
any Lien on any property of such Person, whether or not the obligations have been assumed by such Person (other than Permitted Encumbrances);
(h) obligations under PACE Loans; or (i) obligations of such Person under any interest rate or currency exchange agreement.
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“Indemnified Parties”
has the meaning set forth in Section 19.12(b).
“Indemnified Persons”
has the meaning set forth in Section 14.4.
“Indemnified Taxes”
means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of
Borrower under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.
“Independent”
means, when used with respect to any Person, a Person who (i) does not have any direct financial interest or any material indirect
financial interest in any Borrower Party, (ii) is not connected with any Borrower Party, as an officer, employee, promoter, underwriter,
trustee, partner, member, manager, creditor, director, supplier, customer or person performing similar functions, and (iii) is not
a member of the immediate family of a Person defined in clause (i) or (ii) above.
“Independent Accountant”
means (i) any so-called “big four” accounting firm or (ii) another firm of nationally recognized, certified public
accountants which is Independent and which is selected by Borrower and reasonably acceptable to Administrative Agent.
“Independent Architect”
means an architect, engineer or construction consultant selected by Mortgage Borrower which is Independent, licensed to practice in the
State and has at least five (5) years of architectural experience and which is acceptable to Administrative Agent.
“Independent Director”
has the meaning set forth in Section 9.1.1(a).
“Information”
has the meaning set forth in Section 19.18.
“Initial Advance”
means the first Advance to be made pursuant to this Agreement, anticipated to be in the amount of $21,290,000.00.
“Initial Lender”
means NREF OP IV SUBHOLDCO, LLC, a Delaware limited liability company, as the initial Lender hereunder.
“Initial Maturity
Date” means February 9, 2027.
“Insurance Disbursement
Amount” means an amount equal to one-twelfth (1/12th) of the Insurance Premiums that Administrative Agent estimates
in good faith will be payable for the renewal of the coverage afforded by the insurance policies required to be maintained pursuant to
Article VI of this Agreement upon the expiration thereof in order to accumulate sufficient funds to pay all such Insurance
Premiums at least thirty (30) days prior to the expiration of the policies after giving credit for the following amounts: (x) Loan
proceeds and any Mortgage Loan proceeds then available under this Agreement and the Mortgage Loan Agreement, as applicable, for the payment
of Insurance Premiums, (y) Deficiency Collateral then available under this Agreement for the payment of Insurance Premiums, and (z) amounts
then on deposit in the Insurance Reserve Account.
32
“Insurance Premiums”
shall have the meaning set forth in Section 6.3.5(a).
“Insurance Requirements”
means, individually and/or collectively, as the context may require, (i) the requirements of Section 6.2 together with
all material terms of any insurance policy required thereunder, and (ii) all material regulations and then-current standards applicable
to or affecting the Property or any part thereof or any use or condition thereof, which may, at any time, be recommended by the Board
of Fire Underwriters, if any, having jurisdiction over the Property, or such other body exercising similar functions.
“Insurance Reserve
Account” has the meaning set forth in Section 3.2.1(e)(ii).
“Insurance Reserve
Amount” means, as of the date of determination, an amount determined by Administrative Agent in its sole good faith discretion
to be sufficient to pay the aggregate Insurance Premiums due and payable by Borrower during the applicable Extension Term, taking into
consideration the actual or underwritten cash flow from Rents and other Operating Income, less (i) the amount then on deposit in
the Insurance Reserve Account and (ii) the amount of any funds deposited under Section 2.5(d) into the Loan Advance
Reserve Account and allocated for the payment of Insurance Premiums.
“Insurance Reserve
Funds” has the meaning set forth in Section 16.3(a).
“Intellectual Property”
shall have the meaning set forth in Section 4.1.42(a).
“Intercreditor Agreement”
means, individually and/or collectively, as the context may require, any intercreditor agreement entered into between Administrative Agent,
for the benefit of the Lenders, and Mortgage Administrative Agent, for the benefit of the Mortgage Lenders, as each of the same may be
amended, replaced, supplemented or otherwise modified from time to time in accordance with the terms thereof.
“Interest Period”
means with respect to any Payment Date, the period commencing on and including the ninth (9th) day of the calendar month during
which the preceding Payment Date occurs and terminating on the eighth (8th) day of the calendar month in which such Payment
Date occurs.
“Interest Rate Cap
Agreement” means, individually and/or collectively, as the context may require, one or more interest rate protection agreements
(together with the master agreement, confirmation and schedules relating thereto) acceptable to Administrative Agent, between an Acceptable
Counterparty and Borrower obtained by Borrower as and when required pursuant to Section 2.33 hereof After delivery of a Replacement
Interest Rate Cap Agreement or a Substitute Interest Rate Cap Agreement to Administrative Agent, the term “Interest Rate Cap Agreement”
shall be deemed to include such Replacement Interest Rate Cap Agreement or Substitute Interest Rate Cap Agreement and such Replacement
Interest Rate Cap Agreement or Substitute Interest Rate Cap Agreement shall be subject to all requirements applicable to the Interest
Rate Cap Agreement.
33
“IPO” means
either (a) the Transfer (or series of Transfers) (but not a pledge, collateral assignment, lien, charge, encumbrance, hypothecation,
security interest or other security device) of all or substantially all of the direct or indirect interests in Borrower to a Public Vehicle
or (b) an event through which the owner(s) of all or any portion of the direct or indirect legal or beneficial interests in
Borrower becomes or is merged with or into a Public Vehicle, in each case in connection with an initial public offering on the New York
Stock Exchange, NASDAQ or any other nationally recognized securities exchanges.
“IPO Conditions”
means, (i) such Transfer or merger, as applicable, takes place immediately prior to or contemporaneously with the initial public
offering, (ii) satisfaction of the conditions set forth in Section 8.5.2(g), (h), (i), (k) and
(l), (iii) Borrower gives Administrative Agent at least thirty (30) days prior written notice of the transaction, (iv) Guarantor
continues to (a) own not less than twenty-five percent (25%) of the direct or indirect interests in Borrower, Sole Member and Mortgage
Borrower, (b) Control Borrower, Sole Member and Mortgage Borrower and (c) satisfy the Financial Covenants, (v) Borrower
shall deliver to Administrative Agent the redacted organizational documents of such applicable Public Vehicle and updated organizational
chart as required pursuant to Section 8.5.2, (vi) Borrower shall deliver to Administrative Agent such legal opinions
reasonably required by Administrative Agent with respect to the Loan Documents substantially on the terms of the opinion delivered in
connection with the closing of the Loan on the Closing Date, (vii) Borrower shall pay Administrative Agent’s reasonable out-of-pocket
costs and expenses (including reasonable out-of-pocket attorney’s fees) actually incurred in connection therewith and (viii) if
required by Administrative Agent, Guarantor shall deliver a ratification of the Recourse Guaranty, Completion Guaranty, Carry Guaranty
and Environmental Indemnity.
“IQHQ, Inc.”
means IQHQ, Inc., a Maryland corporation.
“IQHQ Parties”
means Guarantor and any Affiliates of Guarantor.
“JPM” means
JPMorgan Chase Bank, National Association, and its successors and assigns in such capacity.
“Key Persons”
means Stephen Rosetta, Tracy Murphy, John Bonanno, Ryan Shannon, Jonathan Praw, and, if and when any such individual becomes an officer
of IQHQ Inc., Jamie Graff and/or Preston Puryear; and in the event that fewer than two such Key Persons are officers of IQHQ Inc. or IQHQ
Inc. ceases to directly or indirectly Control Borrower, such Pre-Approved Officers who are reasonably approved by Administrative Agent
that are officers of IQHQ Inc. or such other Affiliate of Borrower that directly or indirectly Controls Borrower.
“Labor Agreement”
has the meaning set forth in Section 4.1.34.
“Labor Liability”
has the meaning set forth in Section 5.8.24(a).
“Land”
has the meaning set forth in the Recitals.
34
“Late Payment Charge”
shall have the meaning set forth in Section 2.11.
“Lease”
means any lease, sublease or sub-sublease, letting, license, concession or other agreement (whether written or oral and whether now or
hereafter in effect) pursuant to which any Person is granted a possessory interest in, or right to use or occupy all or any portion of
any space in the Property, including (without limitation) every modification, amendment or other agreement relating to such lease, sublease,
sub-sublease, or other agreement entered into in connection with such lease, sublease, sub-sublease, or other agreement and every guarantee
of the performance and observance of the covenants, conditions and agreements to be performed and observed by the other party thereto,
whether before or after the filing by or against Mortgage Borrower of any petition for relief under the Bankruptcy Code. Notwithstanding
the foregoing, in no event shall the term “Lease” include any subleases or sub-sublease, except solely to the extent of Mortgage
Borrower’s interest, if any, thereunder.
“Leasing Agency Agreement”
means (i) that certain Leasing Services Agreement dated as of June 14, 2021, by and between Mortgage Borrower and Colliers International
New England, LLC (the “Existing Leasing Agency Agreement”) and (ii) any future agreement for leasing agency services
or other similar arrangements with respect to the Property which may be entered into by or on behalf of Mortgage Borrower with any Qualified
Leasing Agent subject to the requirements of Section 5.4, as the same may be amended, replaced, supplemented or otherwise
modified from time to time in accordance with the terms hereof.
“Leasing Agent”
means any Qualified Leasing Agent engaged by (or on behalf of) Mortgage Borrower in connection with leasing services for all or any portion
of the Property.
“Legal Requirements”
means, individually and/or collectively, as the context may require, present and future laws, statutes, codes, ordinances, consents, approvals,
certifications, orders, judgments, decrees, injunctions, rules, regulations and requirements, and irrespective of the nature of the work
to be done, of every Governmental Authority (including, without limitation, environmental laws and all covenants, restrictions and conditions
now or hereafter of record) which may be applicable to (i) Borrower, Mortgage Borrower, Sole Member or with respect to its obligations
under the Loan Documents, Guarantor, (ii) all or any portion of the Property, including the Improvements, the Required Improvements
and/or the Equipment thereon, (iii) any portion of the Collateral, (iv) the performance and completion of the obligations and
agreements of Borrower or Mortgage Borrower contained herein or in the other Loan Documents, including (without limitation), the development
and construction of the Required Improvements, (v) the use, manner of use, occupancy, possession, operation, maintenance, alteration,
repair or reconstruction of all or any portion of the Property thereon including, without limitation, building and zoning codes and any
required variances, and ordinances and laws relating to handicapped accessibility, (vi) all requirements of each Construction Permit,
and (vii) all requirements of each Operating Permit.
“Lender”
or, collectively, “Lenders” means each Person listed on the signature pages hereof, each permitted assignee which
becomes a Lender pursuant to Section 15.1, and their respective successors.
“Lender Transfer”
has the meaning set forth in Section 15.1.
35
“Lender’s Increased
Costs Threshold” means an amount equal to 1.00% of the aggregate Commitment of the Lender requesting payment of amounts from
Borrower pursuant to Section 2.17, Section 2.19(a) or Section 2.19(b) of this Agreement.
“Liabilities”
has the meaning set forth in Section 14.4.
“License”
or “Licenses” has the meaning set forth in Section 4.1.43.
“Liquidation Event”
has the meaning set forth in Section 2.13.2.
“Lien”
means any mortgage, deed of trust, lien, pledge, hypothecation, collateral assignment, security interest, PACE Loan or any other encumbrance
or charge on or affecting Mortgage Borrower, Borrower, Sole Member, the Property or the Collateral (in any case, any portion thereof or
any direct interest therein), including, without limitation, any conditional sale or other title retention agreement, any financing lease
having substantially the same economic effect as any of the foregoing, the filing of any financing statement, and mechanic’s, materialmen’s
and other similar liens and encumbrances.
“Line Item”
means a line item of cost or expense set forth in the Budget as the same may be adjusted in compliance with Section 2.24.
“Loan”
has the meaning set forth in the Recitals.
“Loan Advance Funds”
means any and all funds that are deposited into the Loan Advance Reserve Account in accordance with Section 2.22(f).
“Loan Advance Reserve
Account” has the meaning set forth in Section 2.5(d).
“Loan Amount”
means that portion of the Loan advanced pursuant to this Agreement in a maximum principal amount not to exceed the Maximum Loan Amount
and evidenced by the Note.
“Loan Documents”
means, individually and/or collectively, as the context may require, this Agreement, the Note, the Pledge Agreements, the Hypothec, the
Recourse Guaranty, the Completion Guaranty, the Carry Guaranty, the Environmental Indemnity, the Consent of General Contractor Agreement,
the Consent of Construction Management Agreement, the Consent of Parking Management Agreement, each Consent of Project Management Agreement,
each Consent of Management Agreement, the Consent of Leasing Agency Agreement, each Architect Consent, each Engineer Consent, each Major
Trade Contractor Consent, the Assignment of Interest Rate Cap Agreement, together with all other agreements, certificates or other documents
now or hereafter evidencing, guaranteeing, securing or otherwise executed and/or delivered by Mortgage Borrower, Borrower, Sole Member,
Guarantor or any of their respective Affiliates for the benefit of Secured Party in connection with the Loan, as the same may be amended,
replaced, supplemented, or otherwise modified from time to time.
“Losses”
has the meaning set forth in Section 19.12(b).
“Major Lease”
means any Lease that (i) is a Lease of space for at least 50,000 rentable square feet (in the aggregate with other Lease with the
applicable Tenant or its Affiliates), (ii) any Lease with an Affiliate of Mortgage Borrower and (iii) any Lease which does not
meet the Minimum Leasing Criteria.
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“Major Milestones”
means the fulfillment of the following milestones for the Project as determined by Administrative Agent in its sole and good faith discretion:
(i) Component Substantial Completion for the Conversion Component shall have occurred no later than the Outside Conversion Component
Substantial Completion Date, subject to Excusable Delay; (ii) intentionally omitted; (iii) intentionally omitted; (iv) Completion
shall have occurred no later than the Outside Construction Completion Date, subject to Excusable Delay.
“Major Trade Contract”
means (i) the Trade Contracts identified on Schedule III hereto and (ii) any Trade Contract entered into directly with
Mortgage Borrower or an Affiliate of Mortgage Borrower (as opposed to the General Contractor) and having a contract or purchase price,
as the case may be, whether initially or thereafter by virtue of any Change Order or Change Orders, equal to or in excess of Five Million
Dollars ($5,000,000); provided that, for purposes of this definition, multiple Trade Contracts with a single contractor or supplier,
or any Affiliate thereof, as the case may be, shall be deemed to constitute a single Trade Contract for the purposes of determining whether
the same constitutes a Major Trade Contract hereunder.
“Major Trade Contractor”
means any contractor or supplier, as the case may be, under a Major Trade Contract.
“Major Trade Contractor
Consent” means a Major Trade Contractor Consent and Agreement executed and delivered by the applicable Major Trade Contractor
in favor of Secured Party, in form and substance reasonably approved by Administrative Agent.
“Management Agreement”
means (i) that certain Management Agreement dated as of July 17, 2020, by and among Mortgage Borrower, IQHQ REIT Advisors
and CBRE, Inc., as amended by First Amendment to the Alewife Park Property Management Agreement dated as of December 9, 2022
by and between Mortgage Borrower and CBRE, Inc., (ii) the Affiliate Management Agreement and (iii) any other management
services agreement with respect to the Property which may be entered into by or on behalf of Mortgage Borrower with any Qualified Manager
subject to the requirements of Section 5.4, in each case, pursuant to which the applicable Manager is to provide management
and other services with respect to the Property from and after any Component Substantial Completion, as each of the foregoing in (i),
(ii) and (iii) may be amended, replaced, supplemented or otherwise modified from time to time in accordance with the terms hereof
“Manager”
means, individually and/or collectively, as the context may require, (i) CBRE, Inc., (ii) Affiliate Manager and (iii) any
additional or replacement Qualified Manager engaged by (or on behalf of) Mortgage Borrower for management services with respect to all
or any portion of the Property.
“Mandatory Prepayment”
has the meaning set forth in Section 2.13.2.
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“Material Adverse
Effect” means (x) any action, inaction or omission by or at the direction of Borrower, Mortgage Borrower, Sole Member or
Guarantor or any Affiliate thereof or (y) any event, circumstance, fact, development, occurrence or condition directly and actually
affecting the Property and/or the Collateral taken as a whole (in each case, other than general market conditions and market forces) that
has had or is reasonably likely to have a material adverse effect on (i) the value of the Property or the Collateral, in either case,
taken as a whole, (ii) the business, profits, operations or financial condition of Borrower and/or Mortgage Borrower taken as a whole,
(iii) the ability of Borrower or Mortgage Borrower to achieve the Major Milestones within the time periods set forth in the definition
thereof, (iv) the ability of Borrower to perform and satisfy when due or required any of Borrower’s obligations under this
Agreement or any of the other Loan Documents, in all material respects, pursuant to the terms hereof or thereof, as applicable, (v) the
ability of Mortgage Borrower to perform and satisfy when due or required any of Mortgage Borrower’s obligations under the Mortgage
Loan Agreement or any of the other Mortgage Loan Documents pursuant to the terms thereof, as applicable, (vi) the ability of Guarantor
to perform and satisfy when due or required any of Guarantor’s obligations under each of the applicable Loan Documents, in all material
respects, to which it is a party (including, without limitation, Guarantor’s ability to satisfy Guarantor’s Financial Covenants),
or (vii) the enforceability or validity of any of the Loan Documents or the perfection or priority of any Liens created under any
of the Loan Documents.
“Material Adverse
Effect (Advance)” means, (x) any action, inaction or omission by or at the direction of Borrower, Mortgage Borrower, Sole
Member or Guarantor or any Affiliate thereof or (y) any event, circumstance, fact, development, occurrence or condition directly
and actually affecting the Property and/or the Collateral taken as a whole (in each case, other than general market conditions and market
forces) that has had or is reasonably likely to have a material adverse effect on (i) the ability of Borrower or Mortgage Borrower
to achieve the Major Milestones within the time periods set forth in the definition thereof, and (ii) the ability of Borrower or
Mortgage Borrower, as applicable, to perform and satisfy when due or required any of, as applicable, Borrower’s obligations under
this Agreement or any of the other Loan Documents or Mortgage Borrower’s obligations under the Mortgage Loan Documents, in all material
respects, pursuant to the terms hereof or thereof, as applicable, in each case, with respect to the Completion of the Required Improvements
and/or the operation of the Property; in each case such that it would be unlikely, in Administrative Agent’s reasonable determination,
for the Completion of the Required Improvements to occur on or prior to the date upon which such Major Milestone is required to be satisfied
under the terms and conditions of this Agreement, the other Loan Documents and the Mortgage Loan Documents.
“Material Adverse
Effect (Extension)” means any event, circumstance, fact, development, occurrence or condition that has had or is reasonably
likely to have a material adverse effect on (i) the ability of Borrower or Mortgage Borrower to achieve the Major Milestones within
the time periods set forth in the definition thereof, (ii) the ability of Borrower or Mortgage Borrower, as applicable, to perform
and satisfy when due or required any of, as applicable, Borrower’s material obligations under this Agreement or any of the other
Loan Documents pursuant to the terms hereof or thereof, as applicable, or Mortgage Borrower’s material obligations under the Mortgage
Loan Documents, pursuant to the terms thereof, (iii) the ability of Guarantor to satisfy Guarantor’s Financial Covenants, or
(iv) the enforceability, validity, perfection or priority of the liens of the Pledge Agreements or the Mortgage; such that, in the
case of clauses (i) or (ii) only, it would be unlikely, in Administrative Agent’s reasonable determination,
for the Completion of the Required Improvements to occur on or prior to the date upon which such Major Milestone is required to be satisfied
under the terms and conditions of this Agreement and the other Loan Documents.
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“Material Alteration”
means any Alteration following the occurrence of Component Substantial Completion which, when aggregated with all related Alterations
(other than decorative work such as painting, wall papering and carpeting and the replacement of fixtures, furnishings and equipment to
the extent being of a routine and recurring nature and performed in the ordinary course of business) constituting a single project, (i) is
structural in nature, or (ii) involves an estimated cost exceeding $10,000,000.00 (the “Material Alteration Threshold”)
with respect to such Alteration or related Alterations (including the Alteration in question) then being undertaken at the Property.
“Material Alteration
Threshold” has the meaning set forth in the definition of Material Alteration.
“Material Change
Order” means any Change Order unless each of the following are satisfied:
(i) such
Change Order, individually or in the aggregate, will not decrease (A) the aggregate net saleable or rentable square feet comprising
the Conversion Component by more than three and one half percent (3.5%) as compared to the net saleable or rentable square feet comprising
the Conversion Component in the Plans and Specifications approved by Administrative Agent as of the Closing Date or (B) the aggregate
net saleable or rentable square feet comprising the Construction Component by more than three and one half percent (3.5%) as compared
to the net saleable or rentable square feet comprising the Construction Component in the Plans and Specifications approved by Administrative
Agent as of the Closing Date;
(ii) intentionally
omitted;
(iii) such
Change Order will not materially and adversely change the layout of the Required Improvements (except the layout of any tenant improvements
that a Tenant is performing in accordance with a Lease approved by Administrative Agent in accordance with the terms of this Agreement
or permitted in accordance with the terms of this Agreement without such approval, to be extent Borrower has no right to approve such
layout under such Lease);
(iv) such
Change Order will not involve the use of materials, furniture, fixtures and equipment that will not be at least equivalent to or better,
in all material respects, than the materials, furniture, fixtures and equipment originally specified in or required by the Plans and Specifications;
(v) such
Change Order does not result in an increase or decrease in the cost of Required Improvements of greater than Three Million Dollars ($3,000,000)
with respect to a single item, or Twenty Million Dollars ($20,000,000) with respect to the aggregate cost of all such change orders not
previously approved by Administrative Agent at any given time; provided that any increased cost of any change order shall not affect
Borrower’s or Mortgage Borrower’s obligation to cause Completion of the Project and pay all costs thereof and any such increased
costs shall be considered in calculating any Deficiency pursuant to the terms of the Loan Documents;
(vi) such
Change Order will not or is not reasonably expected to cause a Milestone Non-Compliance Event;
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(vii) such
Change Order will not or is not reasonably expected to result in a Deficiency that is not cured by the deposit of Deficiency Collateral
in accordance with the terms of the Loan Documents; and
(viii) such
Change Order shall not result in a violation of applicable Legal Requirements, any Management Agreement or any Lease.
Notwithstanding the foregoing
or anything to the contrary set forth herein, a reallocation and/or application of contingency pursuant to Section 2.24 hereof
shall not constitute a Material Change Order hereunder.
“Material Construction
Agreement” means (i) any Material Trade Contract, (ii) any agreement between Mortgage Borrower, an Affiliate of Mortgage
Borrower, Architect, Engineer or General Contractor with a Material Design Professional, (iii) the Project Management Agreement and
(iv) the Construction Management Agreement.
“Material Construction
Agreement Modification” has the meaning set forth in Section 5.8.12(a).
“Material Design
Professionals” means, individually and/or collectively, as the context may require, (i) any Architect and (ii) any
Engineer that is, or is providing services in the nature of, a structural engineer, MEP engineer, civil engineer, geotechnical engineer
and environmental engineer.
“Material Service
Contract” means any Service Contract that (a) has a term of more than one year (unless terminable by Mortgage Borrower
upon ninety (90) days’ or less notice), (b) together with all other such agreements, contracts, instruments, documents, licenses
or other written obligations under this definition, requires the payment of a termination fee by Mortgage Borrower in excess of $100,000
in the aggregate, or (c) provides for annual payments thereunder by Mortgage Borrower which exceed $1,000,000, provided, that,
for purposes of this definition, multiple such agreements, contracts, instruments, documents, licenses or other written obligations with
a single counterparty, or any Affiliate thereof, as the case may be, shall be deemed to constitute a single such agreement, contract,
instrument, document, license or other written obligation for the purposes of determining whether the same constitutes a Material Service
Contract hereunder.
“Material Trade Contract”
means any Trade Contract with a Material Trade Contractor.
“Material Trade Contractor”
means each of the following (i) any General Contractor, (ii) any Major Trade Contractor, and (iii) any Trade Contractor
with whom a General Contractor has a direct agreement under which the aggregate contract price, whether initially or thereafter by virtue
of any Change Order or Change Orders, is equal to or in excess of Two Million Dollars ($2,000,000) (provided that, for purposes
of this definition, multiple agreements with a single Trade Contractor, or any Affiliate thereof, as the case may be, shall be deemed
to constitute a single agreement for the purposes of determining whether the same constitutes a Material Trade Contract hereunder).
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“Maturity Date”
means, as applicable, (A) the Stated Maturity Date or (B) such earlier date on which the final payment of the Principal Amount
and the Additional Interest becomes due and payable as provided in this Agreement by declaration of acceleration or otherwise.
“Maximum Legal Rate”
means the maximum non-usurious interest rate, if any, that at any time or from time to time may be contracted for, taken, reserved, charged
or received on the indebtedness evidenced by the Note and as provided for herein or the other Loan Documents, under the laws of the State
of New York.
“Maximum Loan Amount”
means One Hundred Forty Three Million and 00/100 Dollars ($143,000,000.00).
“Member”
has the meaning set forth in Section 9.1.1(d).
“Milestone Non-Compliance
Event” means that any Major Milestone has not been timely satisfied as provided in the definition of “Major Milestones”.
“Minimum Equity Requirement”
means direct and indirect owners in Borrower and Mortgage Borrower, in the aggregate, have invested and will maintain at least the greater
of (i) the sum of (x) $360,000,000 of cash equity in the Project as determined by Administrative Agent (inclusive of sums paid
for the acquisition of the Property) and (y) $910,000,000 of imputed market value of the Project, as determined by Administrative
Agent), and (ii) taking into account Mortgage Borrower’s cash basis in the Project, cash or unencumbered readily marketable
assets, as approved by Administrative Agent, equal to at least fifteen percent (15%) of the As-Completed Appraised Value of the Project
as determined in good faith by the Administrative Agent as of the Closing Date.
“Minimum Hold/Control
Requirements” has the meaning set forth in Section 8.5.1(g).
“Minimum Leasing
Criteria” means the Minimum Leasing Criteria to be set forth on Schedule XI hereto as reasonably agreed to by Borrower
and Administrative Agent on or before the date thirty (30) days after the Closing Date.
“Minimum Rate”
means fourteen percent (14.00%) per annum.
“Monetary Default”
means a Default that can be cured with the payment of money.
“Moody’s”
means Moody’s Investors Service, Inc., together with its successors.
“Mortgage Administrative
Agent” means the administrative agent under the Mortgage Loan Agreement, and its successors and assigns in such capacity.
“Mortgage Borrower”
has the meaning set forth in the Recitals.
“Mortgage Borrower
Operating Account” has the meaning set forth in Section 3.2.1(b).
“Mortgage Debt”
means the debt under the Mortgage Loan Agreement.
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“Mortgage Debt Service”
means the debt service under the Mortgage Loan Agreement.
“Mortgage Lenders”
means, individually and/or collectively, as the context may require, any of the mortgage lenders under the Mortgage Loan.
“Mortgage Loan”
has the meaning set forth in the Recitals.
“Mortgage Loan Agreement”
means the Senior Loan Agreement dated as of the date hereof governing the Mortgage Loan, as the same may be amended, restated, replaced,
supplemented or otherwise modified in accordance with the provisions thereof
“Mortgage Loan Amount”
means that portion of the Mortgage Loan advanced pursuant to the Mortgage Loan Documents in a maximum principal amount not to exceed the
Mortgage Maximum Loan Amount and evidenced by the Mortgage Note.
“Mortgage Loan Documents”
means the documents, agreements and instruments governing, securing or evidencing the Mortgage Loan.
“Mortgage Loan Event
of Default” means an event of default under the Mortgage Loan or any default and the lapse of any notice, grace or cure period
thereunder.
“Mortgage Loan Restoration
Provisions” has the meaning set forth in Section 6.4.2(a).
“Mortgage Note”
means that certain promissory note or notes evidencing the Mortgage Loan.
“Mortgage Obligations”
means the obligations under the Mortgage Loan.
“Mortgage Reserve
Accounts” means any reserve accounts under the Mortgage Loan.
“MRP Amount”
the product of (i) 1.30 and (ii) the Maximum Loan Amount plus the Maximum Mortgage Loan Amount.
“Multiemployer Plan”
means a “multiemployer plan” as defined in Section 3(37) of ERISA.
“Net Liquidation
Proceeds” means, with respect to any Liquidation Event, all amounts paid to or received by or on behalf of Mortgage Borrower
or Borrower in connection with such Liquidation Event, including without limitation, proceeds of any sale, refinancing or other disposition
or liquidation, less (i) Administrative Agent’s, Lender’s, Mortgage Administrative Agent’s and/or Mortgage Lender’s
reasonable costs incurred in connection with the recovery thereof, (ii) the costs incurred by Mortgage Borrower in connection with
a Restoration of all or any portion of the Property made in accordance with the Mortgage Loan Documents, (iii) amounts required or
permitted to be deducted therefrom, and amounts paid and/or payable, pursuant to the Mortgage Loan Documents to Mortgage Administrative
Agent and Mortgage Lenders, (iv) in the case of a foreclosure sale, disposition or transfer of the Property in connection with a
realization thereof following an Event of Default under the Mortgage Loan, such reasonable and customary costs and expenses of sale or
other disposition (including reasonable attorneys’ fees and brokerage commissions), (y) in the case of a foreclosure sale,
such costs and expense incurred by Mortgage Administrative Agent and Mortgage Lenders under any of the Mortgage Loan Documents as such
Persons shall be entitled to receive reimbursement for under the terms of the Mortgage Loan Documents, (vi) in the case of a refinancing
of the Mortgage Loan, such costs and expenses (including reasonable attorneys’ fees) of such refinancing as shall be reasonably
approved by Mortgage Administrative Agent, and (vii) the amount of any prepayments required pursuant to the Loan Documents and/or
the Mortgage Loan Documents, in connection with any such Liquidation Event.
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“Net Proceeds”
means the net amount of all Proceeds after payment of any reasonable out-of-pocket expenses incurred by Administrative Agent, any Lender,
Mortgage Administrative Agent or any Mortgage Lender in connection with the collection thereof plus interest thereon at the Default Rate
(from the date advanced through the date of reimbursement) to the extent the same are not paid within ten (10) Business Days after
written request for reimbursement by Administrative Agent.
“Net Proceeds Deficiency”
has the meaning set forth in Section 6.4.6(e).
“New Construction
Loan” has the meaning set forth in Section 19.32.
“Note”
means one or more promissory note(s) made by Borrower in favor of a Lender, as the same may be amended, replaced, supplemented or
otherwise modified from time to time.
“Notice”
has the meaning set forth in Section 19.6(a).
“Notice to Proceed”
has the meaning set forth in Section 19.32.
“Obligations”
means, individually and/or collectively, as the context may require, Borrower’s obligation for the payment of the Debt and the performance
of the Other Obligations.
“OFAC”
means the Office of Foreign Assets Control or, if the context requires, any successor Governmental Authority.
“Officer’s
Certificate” means a certificate executed by an authorized signatory of Borrower that is familiar with the financial condition
of Borrower, the status of the Project and the operation of the Property.
“Off-Site Storage
Location” has the meaning set forth in Section 2.23(b).
“Off-Site Stored
Materials” has the meaning set forth in Section 2.23(b).
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“Off-Site Stored
Materials Conditions” means: (i) such materials are in accordance with the Plans and Specifications; (ii) intentionally
omitted; (iii) the bills of sale and contracts under which such materials are being provided shall be in form and substance reasonably
satisfactory to Administrative Agent and Construction Consultant; (iv) such materials are insured against casualty, loss and theft
in a manner satisfactory to Administrative Agent and Administrative Agent is named as a named insured and loss payee on such insurance
policy with respect to said materials; provided that, if at the time of the applicable Request for Advance the “Builder’s
Risk” insurance policy approved by Administrative Agent as of the Closing Date remains in effect and continues to satisfy the conditions
set forth in Article VI, the insurance coverage requirement set forth in this clause (iv) shall be deemed satisfied;
(v) Mortgage Borrower either owns or will own, after the payment of the bills and invoices therefor (which payment in full shall
occur promptly after the disbursement of the Advance for such materials), such materials free and clear of all liens and encumbrances
of any nature whatsoever (other than Permitted Encumbrances that are not Specified Permitted Encumbrances), which ownership shall be established
contemporaneously with or promptly after such disbursement by evidence reasonably satisfactory to Administrative Agent; (vi) the
aggregate amount of such disbursements of the Loan and Mortgage Loan for such materials shall in no event at any time exceed the actual
costs incurred by Mortgage Borrower for such materials as verified by Construction Consultant; (vii) if reasonably required by Administrative
Agent, Borrower executes and delivers to Administrative Agent such additional security documents as Administrative Agent shall deem reasonably
necessary to create and perfect a first lien in such materials as additional security for the payment of the Loan; (viii) if reasonably
required by Administrative Agent, Architect or Construction Consultant shall certify that it has inspected said materials and they are
in the condition required under the applicable Trade Contracts and in accordance with the Plans and Specifications; (ix) Borrower
is in compliance with the terms and conditions of Section 2.23(d); (x) Administrative Agent reasonably anticipates that
such materials will be incorporated into the Improvements within one hundred eighty (180) days of the applicable Advance (except (x) materials
to be incorporated into the exterior facade of any building may be stored for up to twenty (20) months, (y) EV chargers may be stored
may be stored for up to fourteen (14) months and (z) steel may be stored for up to eight (8) months).
“On-Site Stored Materials”
has the meaning set forth in Section 2.23(a).
“On-Site Stored Materials
Conditions” means: (i) such materials are in accordance with the Plans and Specifications; (ii) such materials are
securely stored on site at the Real Property, and properly inventoried, and clearly stenciled or otherwise marked to indicate that they
are the property of Mortgage Borrower; (iii) the bills of sale and contracts under which such materials are being provided shall
be in form and substance reasonably satisfactory to Administrative Agent and Construction Consultant; (iv) such materials are insured
against casualty, loss and theft in a manner reasonably satisfactory to Administrative Agent and Administrative Agent is named as a named
insured and loss payee on such insurance policy with respect to said materials; provided that, if at the time of the applicable
Request for Advance the “Builder’s Risk” insurance policy approved by Administrative Agent as of the Closing Date remains
in effect and continues to satisfy the conditions set forth in Article VI, the insurance coverage requirement set forth in
this clause (iv) shall be deemed satisfied; (v) Mortgage Borrower either owns or will own, after the payment of the bills
and invoices therefor (which payment in full shall occur promptly after the disbursement of the Advance for such materials), such materials
free and clear of all liens and encumbrances of any nature whatsoever (other than Permitted Encumbrances that are not Specified Permitted
Encumbrances), which ownership shall be established contemporaneously with or promptly after such disbursement by evidence reasonably
satisfactory to Administrative Agent; (vi) the aggregate amount of such disbursements of the Loan and the Mortgage Loan for such
materials shall in no event at any time exceed the actual costs incurred by Mortgage Borrower for such materials as verified by Construction
Consultant; (vii) if reasonably required by Administrative Agent, Borrower executes and delivers to Administrative Agent such additional
security documents as Administrative Agent shall deem reasonably necessary to create and perfect a first lien in such materials as additional
security for the payment of the Loan; (viii) if reasonably required by Administrative Agent, Architect or Construction Consultant
shall certify that it has inspected said materials and they are in the condition required under the applicable Trade Contracts and in
accordance with the Plans and Specifications; (ix) Borrower is in compliance with the terms and conditions of Section 2.23(d);
(x) Administrative Agent reasonably anticipates that such materials will be incorporated into the Improvements within one hundred
eighty (180) days of the applicable Advance (except (x) materials to be incorporated into the exterior facade of any building may
be stored for up to twenty (20) months, (y) EV chargers may be stored may be stored for up to fourteen (14) months and (z) steel
may be stored for up to eight (8) months).
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“Open Violation”
has the meaning set forth in Section 2.5(b)(xvi).
“Operating Expense
Disbursement Amount” means an amount equal to one-twelfth (1/12th) of the Operating Expenses that Administrative
Agent estimates in good faith will be payable during the next ensuing twelve (12) months after giving credit for the following amounts:
(x) Loan proceeds and Mortgage Loan proceeds then available under this Agreement and the Mortgage Loan Agreement, as applicable,
for the payment of such operating expenses, (y) Deficiency Collateral then available under this Agreement for the payment of such
operating expenses, and (z) amounts then on deposit in the Operating Expense Reserve Account.
“Operating Expense
Reserve Account” has the meaning set forth in Section 3.2.1(e)(v).
“Operating Expense
Reserve Amount” means, as of the date of determination, an amount determined by Administrative Agent in its sole good faith
discretion to be sufficient to pay the aggregate Operating Expenses (other than Debt Service, Mortgage Debt Service, Insurance Premiums, Impositions
and Other Charges) due and payable during the applicable Extension Term, taking into consideration (a) the actual or underwritten
cash flow from Rents and other Operating Income, less (b)(i) the amount on deposit in the Operating Expense Reserve Account,
and (ii) the amount of any funds deposited into the Loan Advance Reserve Account under Section 2.5(d) and applied
to the Operating Expense Reserve Account in connection with the exercise of an Extension Option, in each case, as of the applicable Maturity
Date.
“Operating Expense
Reserve Funds” has the meaning set forth in Section 16.5(a).
“Operating Expenses”
means, for any period, without duplication, all expenses actually paid or payable by Mortgage Borrower during such period in connection
with the operation, management, maintenance, repair and use of the Property, determined on an accrual basis, and, except to the extent
otherwise provided in this definition, in accordance with the Approved Accounting Method. Operating Expenses specifically shall include,
without duplication, only to the extent actually paid by or on behalf of Mortgage Borrower or payable by Mortgage Borrower (i) all
expenses incurred in such period in question based on quarterly financial statements delivered to Administrative Agent in accordance with
Article XI, (ii) property management fees in an amount equal to the greater of (x) the actual property management
fees incurred by Mortgage Borrower pursuant to all Management Agreements and (y) an amount equal to three percent (3%) of annual
operating income, (iii) administrative, payroll, security and general expenses for (or allocable to) the Property paid by Mortgage
Borrower, (iv) the cost of utilities, inventories and fixed asset supplies consumed in the operation of the Property, (v) costs
and fees of independent professionals (including, without limitation, legal, accounting, consultants and other professional expenses),
technical consultants, operational experts (including quality assurance inspectors) or other third parties retained to perform services
required or permitted hereunder, (vi) cost of attendance by employees at training and manpower development programs, (vii) association
dues, if any, (viii) computer processing charges, (ix) operational equipment and other lease payments as reasonably approved
by Administrative Agent, (x) taxes and other Impositions, other than income taxes or other Impositions in the nature of income taxes,
and insurance premiums, (xi) expenses, telephone expenses, and credit card commissions, and (xii) all underwritten reserves
required by Administrative Agent hereunder (without duplication of amounts paid from such reserves). Notwithstanding the foregoing, Operating
Expenses shall not include (1) depreciation or amortization or other non-cash charges, (2) income taxes or other Impositions
in the nature of income taxes, (3) any expenses (including legal, accounting and other professional fees, expenses and disbursements)
incurred in connection with the making of the Loan or the sale, exchange, transfer, financing or refinancing of all or any portion of
the Property or in connection with the recovery of Proceeds which are applied to prepay the Note, (4) any expenses which in accordance
with the Approved Accounting Method should be capitalized, (5) Debt Service or Mortgage Debt Service, (6) expenditures for FF&E,
and (7) any item of expense which would otherwise be considered within Operating Expenses pursuant to the provisions above but is
paid directly by any Tenant.
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“Operating Income”
means, for any period, all income of Mortgage Borrower during such period from the use, ownership or operation of the Property as follows:
(a) all
amounts paid to Mortgage Borrower by any Person as Rents and other amounts under Leases, license agreements, occupancy agreements, concession
agreements or other agreements relating to the Property;
(b) business
interruption insurance proceeds received and allocable to the applicable reporting period; and
(c) all
other amounts which in accordance with the Approved Accounting Method are included in Mortgage Borrower’s annual financial statements
as operating income attributable to the Property.
Notwithstanding the foregoing,
Operating Income shall not include (i) any Proceeds (other than business interruption insurance proceeds and only to the extent allocable
to the applicable reporting period), (ii) any proceeds resulting from the Transfer of all or any portion of the Property, (iii) any
Rents attributable to a Lease prior to the date in which the Tenant thereunder has taken occupancy or in which the actual payment of rent
(without offset or abatement) is required to commence thereunder (except for (x) Tenants under Leases with rent abatements not to
exceed twelve (12) months and (y) Qualified Credit Tenants), (iv) any Rents (1) from month-to-month Tenants, (2) from
Tenants not in occupancy of their premises, (3) Tenants that have not renewed their Lease pursuant to the terms thereof, (4) Tenants
that have delivered a termination notice to a Borrower Party, or (5) Tenants that are included in a Bankruptcy Action unless such
Lease has been specifically assumed or affirmed (and not been rejected) under such Bankruptcy Action, (v) any item of income otherwise
included in Operating Income but paid directly by any Tenant to a Person other than Mortgage Borrower as an offset or deduction against
Rents payable by such Tenant, provided such item of income is for payment of an item of expense (such as payments for utilities
paid directly to a utility company) and such expense is otherwise excluded from the definition of Operating Expenses pursuant to clause
“(7)” of the definition thereof, and (vi) security deposits received from Tenants until forfeited or applied. Operating
Income shall be calculated on the cash basis of accounting and, except to the extent otherwise provided in this definition, in accordance
with the Approved Accounting Method.
46
“Operating Permits”
means, individually and/or collectively, as the context may require, all authorizations, consents and approvals given by, and licenses
and permits issued by, Governmental Authorities which are required for the ownership, use and occupancy of the Property in accordance
with all Legal Requirements, and for the performance and observance of all obligations and agreements of Borrower contained herein or
in the other Loan Documents (or of Mortgage Borrower contained in the Mortgage Loan Documents) that relate to the ownership, use and occupancy
of the Property, including (without limitation) the ownership, use and occupancy of the Required Improvements following Substantial Completion
of the same (or any Component thereof following its applicable Component Substantial Completion).
“Ordinary Course
Litigation” means litigation (i) in which the amount in controversary is less than $1,000,000, (ii) that is landlord-tenant
litigation commenced by Mortgage Borrower (in its capacity as landlord) with respect to any actual or alleged tenant default under any
Lease (so long as Borrower has previously provided, or has previously caused Mortgage Borrower to provide, to Administrative Agent a copy
of the default notice sent to the applicable Tenant in connection with such litigation), and/or (ii) that constitutes ordinary course
“slip and fall” litigation that is, or is reasonably expected to be, covered by insurance and has not been denied in writing
by Mortgage Borrower’s insurance company.
“Organizational Chart”
has the meaning set forth in Section 4.1.1.
“Organizational Documents”
means, as to any Person, the organizational or governing documents of such Person, including the certificate of incorporation and by-laws
with respect to a corporation; the certificate of formation or organization and operating agreement with respect to a limited liability
company; and the certificate of limited partnership and partnership agreement with respect to a limited partnership.
“Original Closing
Date” has the meaning set forth in the Recitals.
“Original Loan”
has the meaning set forth in the Recitals.
“Original Mezzanine
Loan Agreement” has the meaning set forth in the Recitals.
“Original Note”
has the meaning set forth in the Recitals.
“Other Charges”
means maintenance charges, impositions other than Impositions, and any other charges, including, without limitation, vault charges and
license fees for the use of vaults, chutes and similar areas adjoining the Property, now or hereafter levied or assessed or imposed against
the Property or any part thereof by any Governmental Authority, provided that Other Charges shall not include Taxes and/or those
required to be paid by any tenant pursuant to its respective Lease.
47
“Other Connection
Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient
and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party
to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction
pursuant to or enforced any Loan Document, or sold or assigned an interest in the Loan or any Loan Document).
“Other Obligations”
means, collectively, Borrower’s obligations for the performance of all covenants, conditions, liabilities and obligations of Borrower
contained in this Agreement and the other Loan Documents.
“Other Taxes”
means all present or future stamp, court or documentary, intangible, recording, filing, registration or similar Taxes that arise from
any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a
security interest under, or the Liens created or secured under, or otherwise with respect to, any Loan Document, except any such Taxes
that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.18).
“Outgoing Lender”
has the meaning set forth in Section 2.18(b)(ii).
“Outside Construction
Completion Date” means, with respect to all portions of the Project, October 15, 2025.
“Outside Conversion
Component Substantial Completion Date” means (a) with respect to paragraphs (a)(i) and (a)(iii) of
the definition of Component Substantial Completion, January 18, 2025; and (b) with respect to paragraph (a)(iv) of
the definition of Component Substantial Completion, March 18, 2025.
“Owner’s Title
Policy” means that certain Owner’s Policy of Title Insurance issued by Title Company in favor of Mortgage Borrower and
dated as of the Original Closing Date.
“Ownership Threshold”
means, with respect to U.S. Persons, twenty percent (20%), and with respect to non-U.S. Persons, ten percent (10%); provided, however,
that (x) (a) if there occurs after the Closing Date a Change in Law that requires Administrative Agent to reduce its equity
ownership percentage threshold below, with respect to U.S. Persons, twenty percent (20%), and with respect to non-U.S. Persons, ten percent
(10%), or (b) if after the Closing Date Administrative Agent reduces its equity ownership percentage threshold below, with respect
to U.S. Persons, twenty percent (20%), and with respect to non-U.S. Persons, ten percent (10%) generally for its loans and borrowers that
are similar in nature, size, type and amount to the Loan and Borrower, and (y) if Administrative Agent notifies Borrower in writing
of such reduced equity ownership percentage threshold in writing, then from and the date on which Administrative Agent delivers to Borrower
such written notice, the “Ownership Threshold” for purposes of this Agreement shall be such reduced equity ownership percentage
threshold set forth in such written notice.
“PACE Loan”
means (x) any “Property-Assessed Clean Energy loan” or (y) any other indebtedness, without regard to the name given
to such indebtedness, which is (i) incurred for improvements to the Property for the purpose of increasing energy efficiency, increasing
use of renewable energy sources, resource conservation, or a combination of the foregoing, and (ii) repaid through multi-year assessments
against the Property.
48
“Parking Management
Agreement” means any agreement for parking management services or other similar arrangements which may be entered into by or
on behalf of Mortgage Borrower with any Parking Manager subject to the requirements of Section 5.4, as the same may be amended,
replaced, supplemented or otherwise modified from time to time in accordance with the terms hereof.
“Parking Manager”
means, any third-party Qualified Parking Manager engaged by (or on behalf of) Mortgage Borrower for management services with respect to
all or any portion of the parking for the Improvements.
“Participant Register”
has the meaning specified in Section 15.6.
“Patriot Act”
means, individually and/or collectively, as the context may require, all laws relating to terrorism or money laundering, including Executive
Order No. 13224 on Terrorist Financing (effective September 24, 2001) and the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Public Law 107 56), as the same was restored and amended by
Uniting and Strengthening America by Fulfilling Rights and Ensuring Effective Discipline Over Monitoring Act (USA FREEDOM Act) of 2015
and, as the same may be amended, replaced, supplemented or otherwise modified from time to time.
“Patriot Act Offense”
means (i) any violation of the laws of the United States of America or of any of the several states, or any act or omission that
would constitute a violation of such laws if committed within the jurisdiction of the United States of America or any of the several states,
relating to terrorism or money laundering, including any offense under (a) the laws against terrorism; (b) the laws against
money laundering, (c) the Bank Secrecy Act, as amended, (d) the Money Laundering Control Act of 1986, as amended, or (e) the
Patriot Act, or (ii) the conspiracy to commit, or aiding and abetting another to commit, any violation of any such laws.
“Payment Date”
means the ninth (9th) day of each calendar month; provided, however, that Administrative Agent shall have the
right to change the Payment Date to any other day of a calendar month selected by Administrative Agent, in its sole and absolute discretion
upon at least ten (10) Business Days’ prior notice to Borrower (in which event such change shall then be deemed effective)
and, if requested by Administrative Agent, Borrower shall promptly execute an amendment to this Agreement to evidence such change; provided
that if Administrative Agent shall have elected to change the Payment Date as aforesaid, the Interest Period may be adjusted accordingly.
“Permanent Financing”
means the Loan from and after the date on which, in the sole good faith determination of Administrative Agent, Restricted Payments can
be made without the Loan being classified as an HVCRE exposure.
“Permitted Activities”
has the meaning set forth in Section 9.1(b).
49
“Permitted Encumbrances”
means, (I) with respect to the Collateral, the Liens and security interests created by the Loan Documents and (II) with respect
to the Property individually and/or collectively, as the context may require, (a) the Liens and security interests created or permitted
by this Agreement and the Mortgage Loan Documents, (b) all Liens, encumbrances and other matters disclosed in the Title Policy, (c) Liens,
if any, for Impositions not yet delinquent, (d) Liens for Impositions that are being contested in good faith by appropriate proceedings
diligently conducted in accordance with Section 7.3, (e) statutory Liens of carriers or warehousemen incurred in the
ordinary course of business and, if and to the extent the same are in dispute, are being contested in good faith in accordance with the
terms of Sections 7.2 and 7.3, (f) mechanics, materialmen and other similar Liens arising by operation of law, which
are either (x) Contractor Liens or (y) (1) incurred in the ordinary course of business, including, without limitation,
during the development and construction of the Project, (2) for sums which are being contested in good faith in accordance with Sections
7.2 and 7.3, and (3) in any event, have been discharged of record by bonding or otherwise within forty-five (45) days
following the filing of such Lien, (g) intentionally omitted, (h) equipment leases or pledges that are the subject of Approved
Equipment Financing, (i) immaterial Transfers and grants of easements, restrictions, covenants, reservations and rights of way in
the ordinary course of business, which, in each case, are (A) permitted by the terms of Section 8.3 and (B) entered
into in compliance in all material respects with the terms of Section 8.3, (j) rights of existing or future Tenants pursuant
to Leases approved by Administrative Agent in accordance herewith or which are otherwise permitted hereunder without the approval of Administrative
Agent, (k) intentionally omitted, (1) bankers’ liens, rights of setoff and other similar liens which are subject and subordinate
to the Loan existing solely with respect to cash and other investments on deposit in one or more accounts maintained by or on behalf of
Borrower, in each case granted in the ordinary course of business in favor of the bank or banks with which such accounts are maintained,
solely securing amounts owing to such bank with respect to cash management and operating account arrangements and (m) such other
title and survey exceptions as Administrative Agent has approved or may approve in writing in Administrative Agent’s sole discretion.
“Permitted Indebtedness”
means, (I) with respect to Mortgage Borrower, individually and/or collectively, as the context may require, (a) the Mortgage
Note and the other obligations, indebtedness and liabilities specifically provided for in the Mortgage Loan Document and secured by the
Mortgage Loan Agreement and/or the other Mortgage Loan Documents, (b) until Completion of the Project, amounts to be incurred pursuant
to the Construction Agreements to which Mortgage Borrower is a party, (c) following Substantial Completion, unsecured trade payables
(not including any Construction Agreements) and operational debt not evidenced by a note and in an aggregate amount not exceeding three
percent (3%) of the outstanding principal balance of the Loan and the Mortgage Loan at any given time; provided that any Indebtedness
incurred pursuant to this clause (c) shall be (x) outstanding not more than sixty (60) days and (y) incurred in
the ordinary course of business and on an arm’s length basis on commercially reasonable terms and conditions, and (d) Approved
Equipment Financing, and (II) with respect to Borrower, the Note and the other obligations, indebtedness and liabilities specifically
provided for in any Loan Document and secured by this Agreement and/or the other Loan Documents. Notwithstanding anything set forth herein,
in no event shall Borrower be permitted under this provision to enter into a note (other than the Note and the Mortgage Note) or other
instrument for borrowed money.
50
“Permitted Non-Controlling
Equity Pledge” means a pledge to any commercial lending institution of any indirect legal and beneficial interest in Borrower
in connection with a corporate line of credit or corporate credit facility involving indirect interests in multiple properties or Persons,
provided that (i) such pledged interests do not represent a Controlling indirect interest in Borrower, Sole Member or Mortgage
Borrower, (ii) the payment of the obligations under such corporate line of credit or credit facility is not dependent solely or primarily
from cash flow from the Property and (iii) such pledge, upon foreclosure thereof, would not result in a violation of the applicable
Minimum Hold/Control Requirements.
“Person”
means any individual, corporation, partnership, joint venture, limited liability company, estate, trust, unincorporated association, any
federal, state, county or municipal government or any bureau, department or agency thereof and any fiduciary acting in such capacity on
behalf of any of the foregoing.
“Personal Property”
means all furniture, furnishings, objects of art, machinery, goods, tools, supplies, appliances, general intangibles, contract rights,
chattel paper, inventory accounts (including, without limitation, the Collateral Accounts and any funds in such Collateral Accounts from
time to time), accounts receivable, franchises, licenses, certificates and permits, and all other personal property of any kind or character
whatsoever (as defined in and subject to the provisions of the Uniform Commercial Code), other than fixtures, which are now or hereafter
owned by Mortgage Borrower and which are located within or about the Land and the Improvements, together with all accessories, replacements
and substitutions thereto or therefor and the proceeds thereof
“Plan”
means an (i) employee benefit plan as defined in Section 3(3) of ERISA, and (ii) which is subject to Title IV of ERISA
or Section 302 of ERISA or Section 412 of the Code.
“Plans and Specifications”
means, individually and/or collectively, as the context may require, (a) the plans and specifications for the construction of the
Required Improvements, (which shall include, without limitation, a description of the materials, equipment and fixtures necessary for
the construction of the Required Improvements, together with any other architectural, structural, foundation and elevator plans and specifications
prepared by Architects and/or Engineers and incorporated in the plans and specifications by the Architect, any mechanical, electrical,
plumbing and fire protection plans and specifications prepared by any Person retained or to be retained by Mortgage Borrower, Architect,
Engineer or General Contractor), as limited, in the case of the Construction Improvements, to the Cold Shell Description unless otherwise
elected by Mortgage Borrower, (A) as approved by Administrative Agent and Construction Consultant on the date hereof, on or prior
to the date construction, as the case may be, is commenced and (B) as the same may be amended, supplemented or otherwise modified
pursuant to the terms of Section 5.8.6, and (b) all Change Orders applicable thereto, provided that such Change
Orders have been approved by Administrative Agent to the extent required hereunder. “Plans and Specifications” do not include
plans and specifications related solely to Building 4 or Building 5.
“Pledge Agreement
(Mortgage Borrower)” means that certain Pledge and Security Agreement, dated as of the Original Closing Date, by Sole Member
in favor of Administrative Agent for the benefit of Lenders, pledging the equity interests in Mortgage Borrower, as amended by that certain
Amendment to Pledge Agreement (Mortgage Borrower) dated as of the Closing Date, as the same may be further amended, restated, replaced,
supplemented or otherwise modified in accordance with the provisions thereof.
51
“Pledge Agreement
(Sole Member)” means that certain Mezzanine Pledge and Security Agreement, dated as of the Original Closing Date, by Borrower
in favor of Administrative Agent for the benefit of Lenders, pledging the equity interest in Sole Member, as amended by that certain Amendment
to Mezzanine Pledge and Security Agreement dated as of the Closing Date, as the same may be further amended, restated, replaced, supplemented
or otherwise modified in accordance with the provisions thereof
“Pledge Agreements”
means, collectively, the Pledge Agreement (Mortgage Borrower) and Pledge Agreement (Sole Member).
“Pledged Company
Interests” shall have the meaning ascribed to such term in the Pledge Agreements.
“Pre-Approved Officer”
shall mean, in connection with, and concurrently with the replacement of a Key Person, an individual appointed that (i) replaces
an existing Key Person, (ii) is an officer of an IQHQ Party that directly or indirectly Controls Borrower, Sole Member, Mortgage
Borrower and Guarantor, and (iii) is actively involved in the day-to-day operation of the Property or Borrower, Sole Member, Mortgage
Borrower and Guarantor.
“Prefabrication Deposits”
has the meaning set forth in Section 2.23(c).
“Prepayment Failure”
has the meaning set forth in Section 2.13.1(a).
“Prime Rate”
means a fluctuating rate per annum equal to the Prime Rate Index plus the Prime Rate Spread; provided, however in no event
shall the Prime Rate be deemed to be less than the Minimum Rate.
“Prime Rate Index”
means the annual rate of interest publicly announced by JPMorgan Chase Bank, National Association, in New York, New York, as its base
rate, as such rate shall change from time to time. If JPMorgan Chase Bank, National Association, ceases to announce a base rate, Prime
Rate Index shall mean the rate of interest published in The Wall Street Journal from time to time as the “Prime Rate.” If
The Wall Street Journal ceases to publish the “Prime Rate,” the Lender shall select an equivalent publication that publishes
such “Prime Rate,” and if such “Prime Rates” are no longer generally published or are limited, regulated or administered
by a governmental or quasi-governmental body, then Lender shall select a comparable interest rate index.
“Prime Rate Loan”
means the Loan at such time as interest thereon accrues at a rate of interest based upon the Prime Rate.
“Prime Rate Spread”
means, in connection with the conversion of the Loan from a SOFR Rate Loan to a Prime Rate Loan, the difference (expressed as the number
of basis points) of (a) the Term SOFR Rate Index as of the Determination Date for which the Term SOFR Rate Index was last applicable
to the Loan plus the Spread minus (b) the Prime Rate as of such Determination Date; provided, however, that
if such difference is a negative number, the Prime Rate Spread shall be zero.
52
“Principal Amount”
means, as of the date of determination, the aggregate outstanding principal amount of the Loan.
“Proceeds”
has the meaning set forth in Section 6.4.3.
“Pro Forma”
means the pro forma mortgagee title insurance policy approved by Administrative Agent in connection with the closing of the Loan.
“Prohibited Person”
means any Person: (i) listed in the Annex to, or is otherwise subject to the prohibitions of, Executive Order No. 13224 on Terrorist
Financing, effective September 24, 2001, and relating to Blocking Property and Prohibiting Transactions With Persons Who Commit,
Threaten to Commit, or Support Terrorism or any other similar prohibitions contained in the rules and regulations of OFAC or in any
enabling legislation or other Executive Orders; (ii) that is owned or controlled by, or acting for or on behalf of, any Person that
is listed in the Annex to, or is otherwise subject to the prohibitions of, Executive Order No. 13224; (iii) with whom Lender
is prohibited from dealing or otherwise engaging in any transaction by any terrorism or money laundering law, including Executive Order
No. 13224; (iv) who commits, threatens, conspires to commit or supports “terrorism” as defined in Executive Order
No. 13224; (v) that is named as a “specially designated national and blocked person” on the most current list published
by OFAC at its official web site or at any replacement web site or other replacement official publication of such list; (vi) that
is subject to trade restrictions under United States law, including, without limitation, the Patriot Act, the International Emergency
Economic Powers Act, 50 U.S.C. §§ 1701 et seq., The Trading with the Enemy Act, 50 U.S.C. App. 1 et seq., and any Executive
Orders or regulations promulgated thereunder including those related to Specially Designated Nationals and Specially Designated Global
Terrorists; (vii) that is listed on any Government List; (viii) that has been previously convicted of any felony involving a
crime or crimes of moral turpitude or for any Patriot Act Offense; (ix) that is currently under public investigation by any Governmental
Authority for any alleged felony involving a Financial Crime; (x) that is operating, organized or resident in a Sanctioned Country;
(xi) that is otherwise the subject or target of Sanctions; or (xii) who is an Affiliate of any Person that is described by or
that satisfies any of clauses (i) through (x) above.
“Prohibited Transferee”
means any Person listed on Schedule IX, attached hereto.
“Project”
means, collectively, the construction, development and Completion of the Required Improvements substantially in accordance with the Plans
and Specifications and in accordance, in all material respects, with the other applicable requirements of the Loan Documents.
“Project Documents”
means, individually and/or collectively, as the context may require, the Construction Agreements, the Zoning Documents, the REAs, the
Material Service Contracts, and any Property Operating Agreements, as the same may be amended, restated, replaced, supplemented or otherwise
modified in accordance with the provisions thereof.
“Project Manager”
means (i) with respect to the Conversion Component, CBRE, Inc, a Delaware corporation, (ii) with respect to the Construction
Component [and Parking Component], Leggat McCall Properties LLC, a Massachusetts limited liability company, and (iii) any successor
or additional project manager engaged by (or on behalf of) Mortgage Borrower with respect to any portion of the Project, subject to the
requirements of Section 5.4.
53
“Project Management
Agreement” means (A) with respect to the Project Manager for the Conversion Component, (i) that certain Agreement
for Project Management Services dated as of October 21, 2021, by and between Mortgage Borrower and such Project Manager, as amended
by that certain Change Order dated as of May 3, 2022 and (ii) any other project management or similar agreement which may be
entered into by (or on behalf of) Mortgage Borrower with any successor or additional or other Project Manager with respect to the Conversion
Component, subject to the requirements of Section 5.4, and (B) with respect to the Project Manager for the Construction
Component, (i) that certain Agreement for Project Management Services dated as of March 9, 2022, by and between Mortgage Borrower
and such Project Manager and (ii) any other project management or similar agreement which may be entered into by (or on behalf of)
Mortgage Borrower with any successor or additional or other Project Manager with respect to the Construction Component, subject to the
requirements of Section 5.4, as each of the foregoing in (i) and (ii) may be amended, replaced, supplemented or
otherwise modified from time to time in accordance with the terms hereof.
“Property”
means, collectively, the Land, Improvements, Equipment, Personal Property, Leases, Rents, Collateral Accounts, fixtures, and all
easements, rights-of-way or use, rights, strips and gores of land, streets, ways, alleys, passages, sewer rights, water, water courses,
water rights and powers, air rights and development rights, and all estates, rights, titles, interests, privileges, liberties, servitudes,
tenements, hereditaments and appurtenances of any nature whatsoever, in any way now or hereafter belonging, relating or pertaining to
the Land.
“Property Operating
Agreements” means, individually and/or collectively, as the context may require, any Construction Management Agreement, any
Project Management Agreement, any Management Agreement, any Parking Management Agreement and any Leasing Agency Agreement, as the same
may be amended, restated, replaced, supplemented or otherwise modified in accordance with the provisions thereof.
“Public Access Improvements”
has the meaning set forth in Section 5.3(k).
“Public Vehicle”
means a Person (i) that owns, directly or indirectly, substantially all of the assets held directly or indirectly by IQHQ, Inc.,
immediately prior to any IPO, including without limitation, all of IQHQ Inc.’s interests in Guarantor, Mortgage Borrower, Sole Member,
Borrower, the Property and the Collateral, and (ii) whose securities are listed and traded on the New York Stock Exchange, NASDAQ
or any other nationally recognized securities exchange, and shall include a majority owned subsidiary of any such Person or any majority
owned operating partnership of any such Person, through which such Person conducts all or substantially all of its business.
“Punchlist Items”
means, individually and/or collectively, as the context may require, minor or insubstantial details of construction, decoration, mechanical
adjustment or installation the non-completion of which does not prevent the use, occupancy or operation of any Component for its intended
purposes and does not prevent or delay the satisfaction of any conditions to deliver demised space to any tenant pursuant to any Lease.
54
“Qualified Construction
Manager” means an independent, third-party construction manager reasonably approved by Administrative Agent in advance in writing.
“Qualified Credit
Tenant” shall mean a Tenant (i) with a credit rating by S&P of -BBB or better that is not on a negative watch for long
term credit ratings and (ii) that has entered into a Major Lease with Mortgage Borrower in accordance with the terms of this Agreement;
provided Administrative Agent has determined that Mortgage Borrower is reasonably likely to deliver possession of the premises
demised pursuant to such Major Lease to the such Tenant on or prior to the date required pursuant to the terms of such Major Lease and
Mortgage Borrower does not otherwise have any right to terminate such Major Lease (other than upon the occurrence of a casualty or condemnation).
“Qualified Leasing
Agent” means a reputable, experienced nationally recognized leasing agent reasonably approved by Administrative Agent.
“Qualified Manager”
means (i) any Affiliate of IQHQ, Inc., (ii) CBRE, (iii) Colliers, (iv) Cushman & Wakefield, (v) Jones
Lang LaSalle, (vi) Lincoln Properties, (vii) Transwestern, (viii) a reputable and experienced property management organization
having at least five (5) years’ experience in the management of properties similar in location, size, class, use, operation
and value as the Property or (ix) any other Person as Administrative Agent shall approve in advance in writing, which approval shall
not be unreasonably withheld, conditioned or delayed.
“Qualified Operator”
means, individually and/or collectively, as the context may require, Qualified Construction Manager, Qualified Project Manager, Qualified
Leasing Agent, Qualified Manager or Qualified Parking Manager.
“Qualified Parking
Manager” means a reputable and experienced parking manager reasonably approved by Administrative Agent.
“Qualified Project
Manager” means an independent, third party, reputable and experienced project manager reasonably approved by Administrative
Agent in advance in writing.
“Rate Conversion”
means conversion of the Loan to an Alternate Rate Loan or Prime Rate Loan.
“Rating Agency”
means, individually and/or collectively, as the context may require, S&P, Moody’s, Fitch or any other nationally-recognized
statistical rating agency selected by Administrative Agent.
“REA” means,
individually and/or collectively, as the context may require, each reciprocal easement, covenant, condition and restriction agreement
or similar agreement affecting the Property as more particularly described on Schedule VIII and any future reciprocal easement
or similar agreement affecting the Property entered into in accordance with the applicable terms and conditions hereof.
55
“Real Property”
means, collectively, the Land, the Improvements and all fixtures now or hereafter owned by Mortgage Borrower.
“Recipient”
means (a) Administrative Agent and (b) any Lender, as applicable.
“Recourse Guaranty”
means that certain Mezzanine Guaranty of Recourse Obligations of Borrower, dated as of the Original Closing Date, by Guarantor in favor
of Secured Party, as amended by that certain Amendment to Mezzanine Guaranty of Recourse Obligations of Borrower dated as of the Closing
Date, as the same may be further amended, replaced, supplemented or otherwise modified from time to time.
“Register”
has the meaning set forth in Section 15.4.
“Registry”
means the official records, recorder’s office of Middlesex County, Massachusetts.
“REIT”
has the meaning set forth in Section 5.2.
“Rents”
means all rents, rent equivalents, moneys payable as damages or in lieu of rent or rent equivalents, cash, income, receivables, additional
rents, revenues, receipts, deposits (including, without limitation, security, utility and other deposits), issues, royalties and profits
(including all oil and gas or other mineral royalties and bonuses), charges for services rendered, Proceeds, if any, from business interruption
or other loss of income insurance and any and all payment and consideration of whatever form or nature received by or paid to or for the
account of or benefit of Mortgage Borrower or its agents or employees from any and all sources arising from or attributable to the Property
whether paid or accruing before or after the filing by or against Mortgage Borrower of any petition for relief under the Bankruptcy Code.
“Replacement Interest
Rate Cap Agreement” means, individually and/or collectively, as the context may require, one or more interest rate protection
agreements, acceptable to Administrative Agent, from an Acceptable Counterparty with terms that are the same, in all material respects,
as the terms of the Interest Rate Cap Agreement except that the same shall be effective as of the date required under this Agreement.
After delivery of a Replacement Interest Rate Cap Agreement to Administrative Agent as permitted hereunder, Borrower shall deliver an
Assignment of Interest Rate Cap Agreement with respect to such Replacement Interest Rate Cap Agreement in form and substance substantially
similar to the Assignment of Interest Rate Cap Agreement delivered on the Closing Date, together with legal opinions of counsel to the
counterparty and Borrower as reasonably required by Administrative Agent and Lender.
“Replacement Notice”
has the meaning set forth in Section 2.18(b)(ii).
“Representation Remaking
Qualifications” has the meaning set forth in Section 2.30(b).
“Request for Advance”
has the meaning set forth in Section 2.22(b)(i).
56
“Required Improvements”
means (i) the following work on the Land in substantial accordance with the Plans and Specifications, the Zoning Documents, the Special
Permit and all applicable Legal Requirements: (A) the conversion and renovation of Building One together with the Building One Amenities
(the “Building One Component”), (B) the conversion and renovation of Building Two together with the Building Two
Amenities (the “Building Two Component”; and together with the Building One Component, the “Conversion Component”),
(C) the construction to a warm shell of Building Three totaling approximately 191,815 net rentable square feet of office and laboratory
space (the “Construction Component”) and (ii) the additional work with respect to Building Four, Building Five,
a parking garage and other site improvements more particularly described on Schedule XX, in each case in accordance with all applicable
Legal Requirements.
“Required Loan Payments”
has the meaning set forth in Section 2.1.5.
“Required Sub-Contracts”
means, individually and/or collectively, as the context may require, a true, correct and complete copy (as certified by Borrower) of signed
and effective Trade Contracts (excluding the General Contractor Agreement) that (i) to the extent that such consent is required hereunder,
are in form and substance reasonably acceptable to Administrative Agent and the Construction Consultant, and (ii) include a Bond
(or, at Administrative Agent’s option, are covered by sub-guard or subcontractor default insurance) by insurers reasonably acceptable
to Administrative Agent to the extent required by this Agreement.
“Reserve Accounts”
means, the Debt Service Reserve Account, Tax Reserve Account, Insurance Reserve Account, the Operating Expenses Reserve Account,
the Loan Advance Reserve Account, the Deficiency Account, the Excess Cash Flow Funds Account and Imprest Account, each as defined herein.
“Reserve Amount”
means each of the Debt Service Reserve Amount, the Insurance Reserve Amount, the Operating Expense Reserve Amount and the Tax Reserve
Amount.
“Resolution Authority”
means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Restoration”
has the meaning set forth in Section 6.4.5.
“Restricted Payment”
has the meaning set forth in the definition of Equity Maintenance Requirement.
“Retainage”
means, subject to Section 2.29, the greater of (a) the actual amount to be held back from a Trade Contractor pursuant
to its Trade Contract and (b) ten percent (10%) of the actual amount payable to such Trade Contractor pursuant to its Trade Contract.
“S&P”
means Standard & Poor’s Ratings Services, a division of The McGraw Hill Companies, Inc.
“Sanctioned Country”
means, at any time, a country, region or territory which is itself the subject or target of any Sanctions.
“Sanctions”
means all economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S.
government, including those administered by OFAC or the U.S. Department of State, or (b) the United Nations Security Council, the
European Union, any European Union member state, or His Majesty’s Treasury of the United Kingdom or other relevant sanctions authority.
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“Second Extension
Notice” has the meaning set forth in Section 2.5(b).
“Second Extension
Option” has the meaning set forth in Section 2.5(b).
“Second Extension
Term” has the meaning set forth in Section 2.5(b).
“Secured Party”
means, collectively, Administrative Agent and Lenders.
“Service Contract”
means any agreements to which Mortgage Borrower is a party or bound (other than any Construction Agreement, Property Operating Agreement
or Lease) which relate to the ownership, management, development, use, operation, leasing, maintenance, repair or improvement of the Property
(or any portion thereof).
“Servicer”
means NREF OP IV REIT SUB, LLC (together with its successors and any assigns who are Affiliates) and any other Person selected by Administrative
Agent to act as servicer hereunder with such powers as are specifically delegated to Servicer by Administrative Agent, whether pursuant
to the terms of this Agreement the Clearing Account Agreement, the Cash Management Agreement, together with such other powers as are incidental
thereto.
“SFHA”
has the meaning set forth in Section 6.2(a).
“SGA” has
the meaning set forth in the definition of “Architect of Record”.
“Single Purpose Entity”
means a Person, other than an individual, which meets the requirements of Article IX.
“SOFR”
means a rate equal to the secured overnight financing rate as administered by the SOFR Administrator.
“SOFR Administrator”
means the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).
“SOFR Rate”
means a fluctuating rate per annum equal to the Term SOFR Rate Index plus the Spread; provided, however, in no event shall
the SOFR Rate be deemed to be less than the Minimum Rate.
“SOFR Rate Loan”
means the Loan at such time as interest thereon accrues at a rate of interest based upon SOFR Rate.
“Soft Costs”
means, collectively, all costs and expenses set forth in the Budget which are denominated in the Budget as “Soft Costs”.
“Sole Member”
has the meaning set forth in the Recitals.
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“Spec Suite Substantial
Completion” means with respect to a Spec Suite:
(i) the
development, construction and equipping of the Spec Suite shall have been one hundred percent (100%) completed substantially in accordance
with the applicable Plans and Specifications, subject to completion of any Punchlist Items with respect thereto, and in accordance with
the Loan Documents, all Construction Permits applicable thereto and Legal Requirements in all material respects;
(ii) Administrative
Agent has received a certificate from Architect that such Spec Suite has been completed substantially in accordance with the Plans
and Specifications, and Construction Consultant has concluded in its reasonable discretion that such certificate is accurate in form and
substance; and
(iii) final
(or otherwise unconditional) lien waivers substantially in form and substance of Exhibit H-1 (or, with respect to the General
Contractor, Exhibit H-2) hereto from all contractors who performed work (excluding Punchlist Items and Retainage that, as
of the date of Spec Suite Substantial Completion, are actually being withheld in accordance with the terms of the Loan Documents
and except with respect to disputed amounts that have been fully bonded to the reasonable satisfaction of Administrative Agent) in connection
with the Spec Suite have been received by Administrative Agent and the Construction Consultant, or other arrangements have been made
which are satisfactory to Administrative Agent and Construction Consultant with respect thereto.
“Spec Suites”
means the work of constructing speculative tenant improvements in certain office suites in the Required Improvements, if any, for which
the reasonable approvals of Administrative Agent contemplated under Section 5.8.27 hereof have been obtained.
“Special Advance”
has the meaning set forth in Section 15.10(c).
“Special Member”
has the meaning set forth in Section 9.1.1(d).
“Special Permit”
means that certain Planning Board Decision in Planning Board Case No. 387, issued on August 16, 2022 by the Planning Board of
the City of Cambridge, Massachusetts, a copy of which is attached hereto as Schedule XV.
“Specified Permitted
Encumbrances” means Permitted Encumbrances for (i) Liens for Impositions, (ii) statutory Liens of carriers or warehousemen
or (iii) mechanics, materialmen and other similar Liens arising by operation of law.
“Specified Priority
Payments” means, collectively, any Extension Prepayment and any Debt-Service Trigger Period Prepayments in Section 2.13.3(c).
“Spread”
means for each Interest Period through (and including) the last Interest Period of the Stated Maturity Date, nine percent (9.0%).
“State”
means the state in which the Property or any part thereof is located.
“Stated Maturity
Date” means the Initial Maturity Date, as such date may be extended pursuant to Section 2.5(b).
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“Strike Price”
means five and one-half percent (5.50%).
“Studio Troika”
has the meaning set forth in the definition of “Architect of Record”.
“Subsequent Advance”
has the meaning set forth in Section 2.30.
“Substantial Completion”
means the occurrence of Component Substantial Completion with respect to all Components.
“Substitute Interest
Rate Cap Agreement” means an interest rate cap agreement between an Acceptable Counterparty and Borrower, obtained by Borrower
and collaterally assigned to Secured Party pursuant to an Assignment of Interest Rate Cap Agreement (or substantially similar collateral
assignment) and shall contain each of the following:
(i) a
term expiring no earlier than, in the case of Section 2.33(e)(i), the end of the Interest Period in which the Maturity Date
occurs and, in the case of Section 2.33(e)(ii), the end of the Interest Period in which the last day of the requested Extension
Term occurs;
(ii) the
notional amount of the Substitute Interest Rate Cap Agreement shall be equal to or greater than the then Principal Amount;
(iii) it
provides that the only monetary and material obligation of Borrower thereunder is the making of a single payment to the Acceptable Counterparty
thereunder upon the execution and delivery thereof and there are no other conditions to the effectiveness of such Substitute Interest
Rate Cap Agreement;
(iv) it
provides to Secured Party and Borrower (as determined by Administrative Agent in its sole but good faith discretion), for the term of
the Substitute Interest Rate Cap Agreement, a protection against rising interest rates that is no less beneficial to Borrower and Secured
Party than (A) in the case of Section 2.33(e)(i), that which was provided by the Interest Rate Cap Agreement being replaced
by the Substitute Interest Rate Cap Agreement and (B) in the case of Section 2.33(e)(ii), that which was intended to
be provided by the Interest Rate Cap Agreement that, but for the operation of Section 2.33(e), would have been required to
have been delivered by Borrower pursuant to Section 2.5(b)(ix) as a condition to the requested Extension Term; and
(v) without
limiting any of the provisions of the preceding clauses (i) through (iv) above, it satisfies all of the requirements
set forth in Section 2.33(d).
From and after the date of
any Rate Conversion, all references to “Interest Rate Cap Agreement” and “Replacement Interest Rate Cap Agreement”
herein (other than in the definition of “Interest Rate Cap Agreement” and the definition of “Replacement Interest
Rate Cap Agreement”) shall be deemed to refer or relate, as applicable, to a Substitute Interest Rate Cap Agreement. Notwithstanding
the foregoing, Administrative Agent acknowledges and agrees that Borrower shall have the right, in lieu of delivering a new Substitute
Interest Rate Cap Agreement to satisfy the foregoing, to modify the then existing Interest Rate Cap Agreement so that it satisfies the
conditions set forth in clauses (i) – (v) of this definition of “Substitute Interest Rate Cap Agreement”.
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“Survey”
means a current land survey for the Property, certified to the Title Company and Administrative Agent and its successors and assigns,
in form and substance reasonably satisfactory to Administrative Agent and prepared by a professional and properly licensed land surveyor
reasonably satisfactory to Administrative Agent in accordance with the most current Minimum Standard Detail Requirements for ALTA/ACSM
Land Title Surveys or other reasonable and customary standards for similar land in Cambridge, Massachusetts, together with the surveyor’s
seal affixed thereto and bearing a certification from the surveyor in form and substance reasonably acceptable to Administrative Agent.
“Taking”
means a temporary or permanent taking by any Governmental Authority as the result or in lieu or in anticipation of the exercise of the
right of condemnation or eminent domain, of all or any part of the Property, or any interest therein or right accruing thereto, including
any right of access thereto or any change of grade affecting the Property or any part thereof
“Taxes”
means all present or future taxes, excises, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments,
fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Tax Disbursement
Amount” means an amount equal to one-twelfth (1/12th) of the Impositions and Other Charges that Administrative Agent
estimates will be payable during the next ensuing twelve (12) months in order to accumulate sufficient funds to pay all such Impositions
and Other Charges at least thirty (30) days prior to their respective due dates after giving credit for the following amounts: (x) Loan
proceeds and any Mortgage Loan proceeds then available under this Agreement and the Mortgage Loan Agreement, as applicable, for the payment
of such Impositions and Other Charges, (y) Deficiency Collateral then available under this Agreement for the payment of such Impositions
and Other Charges, and (z) amounts then on deposit in the Tax Reserve Account.
“Tax Reserve Account”
has the meaning set forth in Section 3.2.1(e)(i).
“Tax Reserve Amount”
means, as of the date of determination, an amount determined by Administrative Agent in its sole good faith discretion to be sufficient
to pay the aggregate Impositions and Other Charges due and payable for the applicable Extension Term, taking into consideration the actual
or underwritten cash flow from Rents and other Operating Income, less (i) the amount then on deposit in the Tax Reserve Account and
(ii) the amount of any funds deposited under Section 2.5(d) of this Agreement and the Mortgage Loan Agreement into
the Loan Advance Reserve Account and allocated for the payment of Impositions and Other Charges.
“Tax Reserve Funds”
has the meaning set forth in Section 16.1(a).
“Tenant”
means any Person leasing, subleasing, licensing or otherwise using or occupying, or entitled to use or occupy, any portion of the Property
pursuant to a Lease, but excluding Mortgage Borrower, Manager or any of their Affiliates and the respective employees, agents and assigns
of the foregoing.
“Tenant Direction
Letter” has the meaning set forth in Section 3.2.1(a).
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“Term SOFR Administrator”
means CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Rate Index selected by Administrative
Agent in its reasonable discretion).
“Term SOFR Rate Index”
means the Term SOFR Reference Rate for a tenor of one month on the Determination Date (expressed as a percentage per annum and rounded
up to the next nearest 1/1000 of 1%), as such rate is published by the Term SOFR Administrator; provided, however, that
if as of 5:00 p.m. (New York City time) on any Determination Date the Term SOFR Reference Rate for a tenor of one month has not been
published by the Term SOFR Administrator, then the Term SOFR Rate Index will be the Term SOFR Reference Rate for such tenor as published
by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate
for such tenor was published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is
not more than three (3) U.S. Government Securities Business Days prior to such Determination Date.
“Term SOFR Reference
Rate” means the forward-looking term rate based on SOFR.
“Title Company”
means the title company or companies issuing the Title Policy.
“Title Continuation”
means a written notice of title continuation or endorsement to the Title Policy indicating that (i) since the later of the Closing
Date or the last preceding Advance under this Agreement, there has been no change in the state of title to the Property other than the
Permitted Encumbrances that are not Specified Permitted Encumbrances, and (ii) no survey exceptions exist that were not previously
approved in writing by Administrative Agent, or otherwise permitted hereunder, as provided herein, which notice of title continuation
or endorsements shall contain no exception for inchoate mechanic’s liens and shall have the effect of continuing such Title Policy
to the date of such Advance and increasing the coverage of the Title Policy by an amount equal to the Advance then being made if such
Title Policy does not by its terms provide for such an increase.
“Title Policy”
means an ALTA mortgagee title insurance policy in a form acceptable to Administrative Agent (or, if the Property is in a State which does
not permit the issuance of such ALTA policy, such form as shall be permitted in such State and acceptable to Administrative Agent) issued
by Title Company with respect to the Property and insuring the Lien of the Mortgage, together with such endorsements and affirmative coverages
as Administrative Agent may reasonably require.
“Total Loss”
means (i) a casualty, damage or destruction of the Property the cost of restoration of which (calculated in accordance with the provisions
of Article VI would exceed twenty percent (20%) of the reasonably estimated fair market value of the Property (before such
casualty), or (ii) a permanent Taking of fifteen percent (15%) or more of the gross area of the Property or so much of the Property,
in either case, such that it would be impracticable, in Administrative Agent’s discretion, even after restoration, to operate the
Property as an economically viable whole.
“Trade Contract”
means any agreement, contract or purchase order (excluding each Architect Agreement, each Engineer Agreement and any other agreements
pertaining solely to professional services from other Design Professionals) entered into with any Trade Contractor, pursuant to which
such Trade Contractor agrees to provide labor, materials, equipment and/or services in connection with the construction of the Required
Improvements.
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“Trade Contractor”
means any Person that is a contractor, sub-contractor, supplier or provider of labor, materials, equipment and/or services in connection
with the construction of the Required Improvements, as the case may be, under a Trade Contract (including, for the avoidance of doubt,
the General Contractor).
“Transfer”
means any direct or indirect sale, assignment, conveyance, mortgage, transfer, pledge, hypothecation, encumbrance, lien or other disposition
of any legal or beneficial interest (including, without limitation, any interest in profits or proceeds related to any ownership interest)
or entering into any agreement with respect to the foregoing, by any means whatsoever whether voluntary, involuntary, by operation of
law or otherwise, or where used as a verb, means to directly or indirectly sell, assign, convey, mortgage, transfer, pledge, hypothecate,
encumber, lien, enter into a PACE Loan, grant a security interest in, exchange or otherwise dispose of any legal or beneficial interest
or grant any option or warrant with respect thereto, or any allocation of Borrower’s assets among newly divided limited liability
companies pursuant to a “plan of division” under the Delaware Limited Liability Company Act.
“TRIPRA”
has the meaning set forth in Section 6.2(e).
“TRS Requests”
has the meaning set forth in Section 5.2.
“UCC” or
“Uniform Commercial Code” means the Uniform Commercial Code as in effect in the State.
“UCC Policy”
means, with respect to the Collateral, a UCC title insurance policy or policies issued by the UCC Policy Provider, providing coverage
in an amount equal to the Loan Amount and in the form and substance acceptable to Administrative Agent, issued with respect to the Collateral
and insuring the lien of the Pledge Agreements encumbering the Collateral.
“UCC Policy Provider”
means the title insurance company or companies issuing the UCC Policy.
“UK Financial Institution”
means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended form time to time) promulgated by the United Kingdom
Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated
by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates
of such credit institutions or investment firms.
“UK Resolution Authority”
means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
“Underwritten NOI”
means Underwritten Operating Income less Underwritten Operating Expenses. Underwritten NOI (including determination of items that do,
and do not, qualify as Operating Income or Operating Expenses) shall be calculated by Administrative Agent in good faith and shall be
final absent manifest error.
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“Underwritten Operating
Expenses” means the greater of (a) actual Operating Expenses for the trailing twelve (12) month period ending on the last
day of the calendar month immediately preceding the applicable date of determination, as determined by Administrative Agent and (b) Operating
Expenses with respect to such trailing twelve (12) month period as set forth in the Budget.
“Underwritten Operating
Income” means projected annualized Operating Income based on the most recent rent roll and such other information as is required
to be delivered by Borrower pursuant to Section 11.2, provided, however, with respect to any percentage rent
payable under a Lease, such percentage rent shall only be included in Underwritten Operating Income to the extent (x) received or
owed for the trailing twelve (12) month period ending on the last day of the calendar month immediately preceding the applicable date
of determination, and (y) recurring and sustainable, as determined by Administrative Agent. Administrative Agent’s calculation
of Underwritten Operating Income shall be conclusive and binding on Borrower absent manifest error.
“Unfunded Loan Amount”
has the meaning set forth in Section 2.5(d).
“United States”
means the United States of America, including the States and the District of Columbia, but excluding its territories and possessions.
“U.S. Government
Obligations” means (i) direct full faith and credit obligations of the United States of America that are not subject to
prepayment, call or early redemption or (ii) other “government securities” within the meaning of Section 2(a)(16)
of the Investment Company Act of 1940, as amended. Any such obligation must be limited to instruments that have a predetermined fixed
dollar amount of principal due at maturity that cannot vary or change. If any such obligation is rated by S&P, it shall not have
an “r” highlighter affixed to its rating. Interest must be fixed or tied to a single interest rate index plus a single fixed
spread (if any), and move proportionately with said index. U.S. Government Obligations include, but are not limited to: U.S. Treasury
direct or fully guaranteed obligations, Farmers Home Administration certificates of beneficial ownership, General Services Administration
participation certificates, U.S. Maritime Administration guaranteed Title XI financing, Small Business Administration guaranteed participation
certificates or guaranteed pool certificates, U.S. Department of Housing and Urban Development local authority bonds, and Washington
Metropolitan Area Transit Authority guaranteed transit bonds. In no event shall any such obligation have a maturity in excess of 365
days.
“U.S. Government
Securities Business Day” means any day except for a Saturday, a Sunday or a day on which the Securities Industry and Financial
Markets Association, or any successor thereto, recommends that the fixed income departments of its members be closed for the entire day
for purposes of trading in United States government securities.
“U.S. Person”
means any Person that is a “United States person” as defined in Section 7701(a)(30) of the Code.
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“U.S. Tax Compliance
Certificate” has the meaning assigned to such term in paragraph Section 2.17.6(b)(iii).
“Waived Reserve
Accounts” has the meaning set forth in Section 3.1.2.
“Waived Reserve
Account Provisions” has the meaning set forth in Section 3.1.2.
“Waived Restoration
Provisions” has the meaning set forth in Section 6.4.2.
“Work Provider”
means any General Contractor, Architect, Engineer, other Design Professional, Trade Contractor or other Person performing work or services
in connection with the development, construction and/or equipping of the Project or any part thereof.
“Withdrawal Liability”
has the meaning given to such term under Part I of Subtitle E of Title IV of ERISA.
“Withholding Agent”
means Borrower and Administrative Agent.
“Write-Down and
Conversion Powers” means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such
EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and
conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of
the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any
UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into
shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect
as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In
Legislation that are related to or ancillary to any of those powers.
“Zoning Documents”
means, collectively, the agreements set forth in Schedule V and any other documents relating to Mortgage Borrower’s right
to utilize and enjoy the Development Rights and any other development rights appurtenant, or otherwise relating to, the Property, as
the same may be amended, restated, replaced, supplemented or otherwise modified from time to time in accordance with the terms hereof.
1.2 Principles
of Construction.
All references to sections
and schedules are to sections and schedules in or to this Agreement unless otherwise specified. All accounting terms not specifically
defined herein shall be construed in accordance with the Approved Accounting Method. When used herein, the term “financial statements”
shall include the notes and schedules thereto. Unless otherwise specified herein or therein, all terms defined in this Agreement shall
have the definitions given them in this Agreement when used in any other Loan Document or in any certificate or other document made or
delivered pursuant thereto. All uses of the word “including” shall mean “including, without limitation” unless
the context shall indicate otherwise. Unless otherwise specified, the words “hereof’, “herein” and “hereunder”
and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision
of this Agreement. Unless otherwise specified, all meanings attributed to defined terms herein shall be equally applicable to both the
singular and plural forms of the terms so defined. The words “to Borrower’s knowledge”, “to the knowledge of
Borrower” or to the “actual knowledge of Borrower” (or words of similar meaning) shall mean “to the knowledge
Borrower and its Affiliates”. The words “Borrower shall”, “Borrower shall cause” or “Borrower shall
not permit” (or words of similar meaning) shall mean (if applicable) “Borrower shall and shall cause Mortgage Borrower to”
or “Borrower shall not permit and shall not allow Mortgage Borrower to permit”, as the case may be, to so act or not to so
act, as applicable.
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With respect to references
made herein to the Mortgage Loan Documents (including without limitation terms defined by cross-reference to the Mortgage Loan Documents),
such references shall refer to the Mortgage Loan Documents as in effect on the Closing Date (and any such defined terms shall have the
definitions set forth in the Mortgage Loan Documents as of the Closing Date) and no amendments, restatements, replacements, supplements,
waivers or other modifications to or of the Mortgage Loan Documents shall have the effect of changing such references (including without
limitation any such definitions) for the purposes of this Agreement unless expressly provided otherwise herein or consented to in writing
by Administrative Agent.
Notwithstanding anything
stated herein to the contrary, any provisions in this Agreement cross-referencing or incorporating by reference provisions of the Mortgage
Loan Documents shall be effective notwithstanding the termination of the Mortgage Loan Documents by payment in full of the Mortgage Loan
or otherwise unless expressly provided otherwise herein or consented to in writing by Administrative Agent.
To the extent that any terms,
provisions or definitions of the Mortgage Loan Documents that are incorporated herein by reference are incorporated into the Mortgage
Loan Documents by reference to any other document or instrument, such terms, provisions or definitions that are incorporated herein by
reference shall at all times be deemed to incorporate each such term, provision and definition of the applicable other document or instrument
as the same is set forth in such other document or instrument as of the Closing Date, without regard to any amendments, restatements,
supplements, waivers or other modifications to or of such other document or instrument occurring after the Closing Date unless expressly
provided otherwise herein or consented to in writing by Administrative Agent.
II. GENERAL
TERMS.
2.1 Loan
Amounts and Disbursement to Borrower.
2.1.1 Maximum
Loan Amount. Subject to the conditions and upon the terms herein provided, and subject specifically to the restrictions set forth
in the remainder of this Section 2.1.1, Lenders hereby agree to lend to Borrower, and Borrower agrees to borrow from Lenders,
in installments, the Loan, in a maximum principal amount not to exceed the Maximum Loan Amount or such lesser amount as shall then be
available pursuant to the terms of this Agreement. The Loan shall be repaid with interest, costs and charges as more particularly set
forth in this Agreement, the Note, the Pledge Agreements, the Mortgage and the other Loan Documents. Principal amounts of the Loan which
are repaid for any reason may not be reborrowed.
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2.1.2 Loan
Advances.
(a) Intentionally
Omitted.
(b) Loan
Advances.
(i) In
the event that Borrower shall have satisfied (or Administrative Agent shall have waived in writing in Administrative Agent’s sole
discretion) the applicable Advance Conditions pursuant to and in accordance with the terms and conditions set forth in this Agreement,
then Lenders shall make Advances in the aggregate principal amount not to exceed the Maximum Loan Amount on or about the dates proposed
by Borrower in the Draw Requests.
(ii) Intentionally
Omitted.
(iii) Upon
the disbursement of any Advance, Borrower agrees to borrow such Advance from Lenders upon the terms of the Note, this Agreement, and
the other Loan Documents. Other than the disbursement of any other Advances made on the Advance Dates pursuant to this Agreement, Lenders
shall have no obligation to loan any other funds in respect of the Loan or the Project.
2.1.3 The
Note, Pledge Agreements and Loan Documents.
(a) The
Loan shall be evidenced by the Note and secured by the Pledge Agreements and the other Loan Documents.
(b) Each
Note shall be payable to the applicable Lender for the account of its applicable lending office in an amount equal to each such Lender’s
Commitment.
(c) Upon
receipt of each Note, Administrative Agent shall forward such Note to the applicable Lender. Each Lender shall record the date, amount,
type and maturity of each Loan made by it and the date and amount of each payment of principal made by Borrower with respect thereto,
and may, if such Lender so elects in connection with any transfer or enforcement of its Note, endorse on the schedule forming a part
thereof appropriate notations to evidence the foregoing information with respect to each such Loan then outstanding; provided
that the failure of any Lender to make any such recordation or endorsement shall not affect the obligations of Borrower hereunder or
under the Note. Each Lender is hereby irrevocably authorized by Borrower to so endorse its Note and to attach to and make a part of its
Note a continuation of any such schedule as and when required. In the event of any conflict between this Section 2.1.3 and
the provisions set forth in Section 15.4 and Section 15.6 relating to the Register and Participant Register,
respectively, the provisions set forth in Section 15.4 and Section 15.6 shall control.
2.1.4 Use
of Proceeds. Borrower shall use the proceeds of the Loan (i) to pay costs and expenses incurred in connection with the closing
of the Loan, as approved by Administrative Agent, and (ii) to make an equity contribution to Mortgage Borrower, which Mortgage Borrower
shall use (together with the proceeds of the Mortgage Loan) to pay for Costs set forth in the Budget or as otherwise expressly permitted
under the Loan Documents and the Mortgage Loan Documents, and only for the purposes and in the manner set forth in this Agreement and
the Mortgage Loan Agreement.
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2.1.5 Additional
Interest. If the sum (such sum, the “Required Loan Payments”) of (i) the total amount of regular monthly
interest calculated based on the Applicable Rate accrued on the principal amount of the Loan and the Mortgage Loan (specifically excluding
(A) interest on any protective advances or other similar amounts funded by Administrative Agent, Mortgage Administrative Agent,
any Lender or any Mortgage Lender and added to the principal amount of the Loan or the Mortgage Loan, (B) interest paid on the
Loan or the Mortgage Loan at the Default Rate in excess of interest paid on the Loan or the Mortgage Loan at the Applicable Rate, (C) any
Late Payment Charge in connection with the Loan or the Mortgage Loan, (D) any processing, underwriting, structuring or other fees
paid to Administrative Agent, Mortgage Administrative Agent, Lenders or Mortgage Lenders in connection with the Loan or the Mortgage
Loan, and (E) the Exit Fee in connection with the Loan and the Mortgage Loan), from the Original Closing Date to the earlier of
(x) the Stated Maturity Date and (y) the date on which Borrower prepays the Debt and the Mortgage Debt in full (such earlier
date, the “Applicable Date”), plus (ii) any origination fee paid to Administrative Agent, Mortgage Administrative
Agent, Lenders or Mortgage Lenders in connection with the Loan or the Mortgage Loan, plus (iii) any Extension Fee paid in connection
with the Loan or the Mortgage Loan, plus (iv) the Maximum Loan Amount and the Maximum Mortgage Loan Amount, shall be less than
the MRP Amount then, on the Applicable Date, Borrower shall pay to Administrative Agent, as additional interest under the Loan, the amount
of the difference between the MRP Amount and the Required Loan Payments (such difference, the “Additional Interest”).
It is acknowledged and agreed that (1) the Additional Interest shall be deemed earned on the date hereof, (2) the Additional
Interest shall constitute Debt hereunder and under the other Loan Documents for all purposes, and (3) the Additional Interest shall
be due and payable on the Applicable Date (and, for the avoidance of doubt, shall not be payable before the Applicable Date, including
upon any partial prepayment of the Debt (including, without limitation, any Extension Prepayment)).
2.2 Commitments
to Lend. Each Lender severally agrees, on the terms and conditions set forth in this Agreement, to make the Advances of the Loan
to Borrower pursuant to this Agreement from time to time prior to the Maturity Date in amounts such that the aggregate principal amount
of the Advances of the Loan made by such Lender at any one time shall not exceed the amount of its Commitment hereunder. Each Borrowing
under this Section 2.2 shall be made from the several Lenders ratably in proportion to their respective Commitments.
2.3 Advances.
Provided that no Monetary Default, material non-monetary Default or Event of Default has occurred and is continuing (other than
a Monetary Default, material non-monetary Default or Event of Default which would be cured solely as a result of the making of the Advance
which Borrower is requesting) and Borrower is in compliance with all of the terms and conditions relating to Advances hereunder, the
Lenders shall, through Administrative Agent, within ten (10) Business Days of Borrower’s compliance with such terms and conditions
relating to Advances hereunder, make Advances to Borrower pursuant to and in accordance with the further terms of this Article II.
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2.4 Notice
to Lenders and Funding of Advances.
(a) Upon
receipt of a Draw Request, Administrative Agent shall promptly notify each Lender of the contents of any Draw Requests it receives and
of such Lender’s share of such Borrowing and such Draw Request shall not thereafter be revocable by Borrower.
(b) Not
later than 11:00 A.M. (New York City time) on the date of each Borrowing, each Lender shall make available its share of such Borrowing,
in federal funds immediately available in New York City, to Administrative Agent at its address referred to in Section 19.6.
(c) Unless
Administrative Agent shall have received notice from a Lender prior to the date of any Advance that such Lender will not make available
to Administrative Agent such Lender’s share of such Advance, Administrative Agent may assume that such Lender has made such share
available to Administrative Agent on the date of such Advance in accordance with Section 2.4(b) and Administrative Agent
may, in reliance on such assumption, make available to Borrower on such date a corresponding amount. If and to the extent that such Lender
shall not have so made such share available to Administrative Agent, such Lender agrees to repay to Administrative Agent forthwith on
demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to Borrower
until the date such amount is repaid to Administrative Agent, at a rate per annum equal to fifteen percent (15%) per annum. If such Lender
shall repay to Administrative Agent such corresponding amount, the principal of such amount so repaid shall constitute such Lender’s
Loan included in such Advance for purposes of this Agreement.
(d) Notwithstanding
the foregoing and any other provision of this Agreement, the Initial Advance shall be funded one hundred percent (100%) by NREF OP IV
REIT Sub, LLC. With the next Subsequent Advances, the Lenders shall fund such portion of the Subsequent Advance in the amounts necessary
to cause the outstanding Loan Advances to be aligned with each Lender’s Commitment.
2.5 Term
and Extension Option.
(a) Term.
The term of the Loan shall terminate and expire on the Maturity Date. If any amounts payable under the Loan Documents are outstanding
on the Maturity Date, the same shall be due and payable (together with accrued interest thereon) in full on the Maturity Date, and Borrower
shall repay the same in full;
(b) Extension
Option. Subject to the provisions of this Section 2.5(b), (i) Borrower shall have the option (the “First
Extension Option”), by revocable written notice (the “First Extension Notice”) delivered to Administrative
Agent no later than thirty (30) days prior to, but not more than one hundred twenty (120) days prior to, the Initial Maturity Date, to
extend the Initial Maturity Date for a period of twelve (12) months (the “First Extension Term”) to the First Extended
Maturity Date and (ii) Borrower shall have the option (the “Second Extension Option”), by revocable written notice
(the “Second Extension Notice”; together with the First Extension Notice, the “Extension Notice”)
delivered to Administrative Agent no later than thirty (30) days prior to, but not more than one hundred twenty (120) days prior to,
the First Extended Maturity Date, to extend the First Extended Maturity Date for a period of twelve (12) months (the “Second
Extension Term”) to the Second Extended Maturity Date; provided that if Borrower subsequently revokes either such notice,
Borrower shall be responsible for Administrative Agent’s and any Lender’s out-of-pocket costs and expenses actually incurred
in connection with the same. Borrower’s right to so extend the Initial Maturity Date and First Extended Maturity Date, as applicable,
shall be subject to the satisfaction (or waiver in Administrative Agent’s sole discretion) of the following conditions precedent
prior to the commencement of the Extension Term:
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(i) no
Monetary Default, material non-monetary Default or Event of Default shall have occurred and be continuing on the date Borrower delivers
the Extension Notice, and no Monetary Default, material non-monetary Default or Event of Default shall have occurred and be continuing
on the Initial Maturity Date (as to the First Extension Option) or the First Extended Maturity Date (as to the Second Extension Option);
(ii) With
respect to (A) the First Extension Option, Borrower shall deliver evidence satisfactory to Administrative Agent, acting in good
faith, that Component Substantial Completion of the Conversion Component shall have occurred, provided that Borrower may contest
Liens in an aggregate amount of up to $500,000 in accordance with Section 7.3, and (B) the Second Extension Option,
Borrower shall deliver evidence satisfactory to Administrative Agent that Completion of the remainder of the Required Improvements shall
have occurred, provided that Borrower may contest Liens in an aggregate amount of up to $500,000 in accordance with Section 7.3;
(iii) No
Deficiency shall exist on the Initial Maturity Date (as to the First Extension Option) or the First Extended Maturity Date (as to the
Second Extension Option) (or Borrower shall have otherwise deposited Deficiency Collateral in respect of any Deficiency in accordance
with Section 2.25 hereof (but, in any event, on or prior to the Initial Maturity Date (as to the First Extension Option)
or the First Extended Maturity Date (as to the Second Extension Option)));
(iv) Borrower
shall have delivered to Administrative Agent evidence acceptable to Administrative Agent (which evidence shall include a new Appraisal
obtained by Administrative Agent, at Borrower’s sole cost and expense no sooner than sixty (60) days prior to the Initial Maturity
Date (with respect to the First Extension Option) or the First Extended Maturity Date (with respect to the Second Extension Option)),
acting in good faith, that, as of (A) the Initial Maturity Date (with respect to the First Extension Option), the As-Stabilized
Loan-to-Value Ratio (Aggregate) does not exceed sixty percent (60%), and (B) the First Extended Maturity Date (with respect to the
Second Extension Option), the As-Is Loan-to-Value Ratio (Aggregate) does not exceed sixty percent (60%); provided that Borrower
shall have the right to either (x) prepay any portion of the Mortgage Loan or the Loan in an amount necessary to satisfy the applicable
foregoing loan-to-value ratio requirement, or (y) cause Mortgage Borrower to deliver an “Extension LC” or “Extension
Collateral” in accordance with Section 2.5(b)(iv) of this Agreement.
(v) intentionally
omitted;
(vi) the
Property shall have achieved (A) a Debt-Service Coverage Ratio (Aggregate) of not less than 0.67:1.00, in the two (2) consecutive
quarters immediately prior to the Initial Maturity Date (with respect to the First Extension Option) and (B) a Debt-Service Coverage
Ratio (Aggregate) of not less than 0.90:1.00, in the two (2) consecutive quarters immediately prior to the First Extended Maturity
Date (with respect to the Second Extension Option); provided that Borrower shall have the right to either (x) prepay a portion
of Mortgage Loan or the Loan in an amount necessary to satisfy the applicable foregoing debt service coverage ratio requirement or (y) cause
Mortgage Borrower to deliver an “Extension LC” or “Extension Collateral” in accordance with Section 2.5(b)(vi).
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(vii) intentionally
omitted;
(viii) on
or prior to the Initial Maturity Date (with respect to the First Extension Option) and the First Extended Maturity Date (with respect
to the Second Extension Option), Borrower shall have paid to Administrative Agent the non-refundable Extension Fee;
(ix) on
or prior to the applicable Maturity Date, Borrower shall obtain and deliver to Administrative Agent (A) a Replacement Interest Rate
Cap Agreement, in a notional amount equal to the outstanding principal balance of the Loan (taking into account the anticipated Advance
pursuant to Section 2.5(d)), which Replacement Interest Rate Cap Agreement shall be effective commencing on the first day
of the Extension Term and shall have a term extending through and including the end of the Interest Period in which the applicable Extended
Maturity Date falls and (B) an assignment of interest rate cap agreement with respect to such Replacement Interest Rate Cap Agreement
in form and substance substantially similar to the Assignment of Interest Rate Cap Agreement delivered on the Closing Date, together
with customary legal opinions of counsel to the counterparty as reasonably required by Administrative Agent and Lender;
(x) if
Administrative Agent shall have determined that the Improvements or any part thereof are or will be located within a one hundred year
flood plain or other area identified by Administrative Agent as having high or moderate risk of flooding or identified as a special flood
hazard area as defined by the Federal Emergency Management Agency, a flood notification form signed by Mortgage Borrower and evidence
that the flood insurance required by Section 6.2 is in place for the Improvements and contents, if applicable, all in form,
substance and amount satisfactory to Administrative Agent and the Lenders;
(xi) on
the Initial Maturity Date (with respect to the First Extension Option) and on the First Extended Maturity Date (with respect to the Second
Extension Option), Borrower shall have cause Mortgage Borrower to have deposited with Administrative Agent each Reserve Amount in the
applicable Reserve Account in accordance with the terms of this Agreement and shall have otherwise complied with all requirements of
Article XVI; provided, however, to the extent that (A) all or a portion of the Unfunded Loan Amount, if
any, is specifically allocated for Line Items in the Budget or is otherwise available to be used for such purpose, to the extent permitted
hereunder, as determined by Administrative Agent, acting in good faith, (B) Borrower has elected to access such Unfunded Loan Amount
during the Extension Term and (C) Borrower has satisfied the applicable Advance Conditions, then Lenders shall Advance such undisbursed
Loan proceeds as of the Initial Maturity Date into the applicable Reserve Account in accordance with Section 2.5(d), in which
case the applicable Reserve Amount required to be deposited by Mortgage Borrower into the applicable Reserve Account shall be reduced
by the amount of the Unfunded Loan Amount actually deposited in the applicable Reserve Account;
(xii) intentionally
omitted;
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(xiii) Administrative
Agent shall have received evidence reasonably satisfactory to Administrative Agent that Mortgage Borrower shall have satisfied all requirements
set forth in the Mortgage Loan Documents for the extension of the Mortgage Loan (or that Mortgage Administrative Agent has waived any
requirement that has not been satisfied), and the Mortgage Loan shall be simultaneously extended for the same period as the Loan;
(xiv) Administrative
Agent shall have determined in good faith that no Material Adverse Effect (Extension) shall exist as of the Initial Maturity Date (with
respect to the First Extension Option) and the First Extended Maturity Date (with respect to the Second Extension Option) with respect
to the Property and/or the Collateral;
(xv) Administrative
Agent shall have received satisfactory evidence that the Minimum Equity Requirement remains satisfied, which evidence may be in the form
of an Officer’s Certificate, in form and substance reasonably acceptable to Administrative Agent;
(xvi) neither
Borrower not Mortgage Borrower shall have received any written notice of any material open building code violation (each, an “Open
Violation”) or, if Borrower or Mortgage Borrower have received any such notice, any such Open Violation shall either (A) be
reasonably acceptable to Administrative Agent or (B) both (x) not reasonably likely to result in a Material Adverse Effect
(as reasonably determined by Administrative Agent) and (y) be an Open Violation that Borrower and/or Mortgage Borrower is challenging,
contesting or effecting cure of by appropriate proceedings in accordance with the terms and conditions of this Agreement and with reasonable
diligence and continuity
(xvii) Intentionally
omitted;
(xviii) Intentionally
omitted;
(xix) on
the Initial Maturity Date (with respect to the First Extension Option) and the First Extended Maturity Date (with respect to the Second
Extension Option), Borrower shall deliver an Officer’s Certificate which confirms and certifies that all representations and warranties
contained in the Loan Documents are true and correct in all material respects (except to the extent such representation or warranty contains
a materiality or similar qualifier, in which event, such representation or warranty that is so qualified shall be true and correct) as
if made on and as of the Initial Maturity Date (with respect to the First Extension Option) and the First Extended Maturity Date (with
respect to the Second Extension Option), except (x) to the extent such representations and warranties are made expressly with respect
to a specific date, and (y) for any changes in facts or circumstances occurring since the Closing Date that do not constitute a
Default or Event of Default or were not caused by the occurrence of a Default or Event of Default and, in any event, do not result in
a Material Adverse Effect;
(xx) to
the extent the same is required under applicable United States Department of the Treasury Financial Crimes Enforcement Network (“FinCEN”)
requirements, Borrower shall have delivered to Administrative Agent (i) any and all documentation and/or other evidence (including
organizational charts) of the identity of the “beneficial owner(s)” (as such term is defined by FinCEN) of Borrower, Sole
Member, Mortgage Borrower and Guarantor and the authorized representative of Borrower, Sole Member, Mortgage Borrower and Guarantor,
which information and level of detail shall be limited to the extent necessary to comply with FinCen, and otherwise as may be required
to comply with any requirements of any orders now or hereafter issued by FinCEN and (ii) a sworn certificate or affidavit confirming
the identity of all persons with authority to bind Borrower, Sole Member, Mortgage Borrower or Guarantor; and
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(xxi) Administrative
Agent shall have received payment for any and all out-of-pocket costs and expenses payable with respect to Borrower exercising the Extension
Option, including, but not limited to, the costs and expenses of the Construction Consultant and Servicer relating to the Loan, and all
reasonable out-of-pocket fees, costs and expenses of outside legal counsel relating to the Loan.
(c) Extension
Documentation. In connection with any extension of the Maturity Date pursuant to this Section 2.5, Borrower shall, if
reasonably requested by Administrative Agent, execute and deliver an amendment or restatement of the Note and shall, if reasonably requested
by Administrative Agent, enter into such other amendments or modifications to the related Loan Documents as may be necessary or appropriate
to evidence the extension of the Maturity Date as provided in this Section 2.5; provided, that, in no event shall
any such amendment or modification in and of itself increase the obligations or liabilities, or decrease the rights, of Borrower or Guarantor
under the Loan Documents, in each case, other than to a de minimis extent.
(d) Unfunded
Loan Proceeds. If (x) any Loan proceeds have not been Advanced (such unadvanced amounts hereinafter, the “Unfunded
Loan Amount”) on or prior to the Initial Maturity Date, (y) Borrower has elected to exercise the First Extension Option
in accordance with the terms and conditions of Section 2.5(b) hereof and (z) Borrower has elected to access the
qualifying portion of such Unfunded Loan Amount pursuant to Section 2.5(b)(xi) and this Section 2.5(d),
so long as no Event of Default has occurred and is continuing, Administrative Agent shall direct the Lenders to Advance all or such applicable
portion of the Unfunded Loan Amount (less the sum of (i) the amount of any Loan proceeds Advanced into the Reserve Accounts on the
Initial Maturity Date pursuant to Section 2.5(b)(xi) and (ii) any accrued interest owed as of the Initial Maturity
Date) into a segregated account (the “Loan Advance Reserve Account”) established by Administrative Agent in its own
name with a bank of its choosing that is an Eligible Institution. The written notice required to be delivered to Administrative Agent
in accordance with the foregoing shall specify the amount of the Unfunded Loan Amount to be Advanced into the Loan Advance Reserve Account,
provided that, as a condition to such Advance, the conditions precedent to an Advance set forth in Sections 2.30(a), (b),
(c), (d), (e), (y) and (bb) shall be satisfied. Funds in the Loan Advance Reserve Account shall
be held and disbursed in accordance with this Agreement (including, without limitation, the Advance Conditions), and subject to the terms
of, Section 2.22(f). With respect to such portion of the Unfunded Loan Amount that is not funded into the Loan Advance Reserve
Account in accordance with this Section 2.5(d), the Commitment shall terminate on the Initial Maturity Date. Administrative
Agent and the Lenders shall be released from all obligations under this Agreement and the other Loan Documents with respect to such terminated
portion of the Commitment. Without limiting the foregoing, prior to the Initial Maturity Date, so long as no Event of Default is then
continuing, Borrower may elect to terminate all or any portion of the outstanding Commitments with respect to any Unfunded Loan Amount
provided no Deficiency exists and, in Administrative Agent’s sole good faith determination, no Deficiency would occur as a result
of the termination of such Commitments.
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(e) Extension
LC. Administrative Agent shall have the additional rights to draw in full any Extension LC and apply the same toward prepayment of
a portion of the Loan: (I) if Administrative Agent has received a notice from the issuing bank that such Extension LC will not be
renewed and a substitute Extension LC is not provided at least ten (10) days prior to the date on which the applicable outstanding
Extension LC is scheduled to expire; (II) if Administrative Agent has not received a notice from the issuing bank that it has renewed
such Extension LC at least ten (10) days prior to the date on which such Extension LC is scheduled to expire and a substitute Extension
LC is not provided at least ten (10) days prior to the date on which the applicable outstanding Extension LC is scheduled to expire;
(III) upon receipt of notice from the issuing bank that such Extension LC will be terminated (except if Administrative Agent has
received a substitute Extension LC no later than ten (10) days prior to such termination); (IV) if the bank issuing the Extension
LC shall cease to be an Approved Bank and Borrower has not substituted an Extension LC from an Approved Bank within ten (10) Business
Days after notice thereof from Administrative Agent; (V) if the bank issuing the Extension LC shall fail to, upon Administrative
Agent’s satisfaction of the reasonable and customary requirements of such issuing bank, (1) issue a replacement Extension
LC in the event the original Extension LC has been lost, stolen and/or destroyed, or (2) consent to the transfer of the Extension
LC to any Person designated by Administrative Agent; and/or (VI) at any time from and after the occurrence and during the continuance
of an Event of Default. Notwithstanding anything to the contrary contained in the above, Administrative Agent is not obligated to draw
any Extension LC upon the happening of an event specified in (I), (II), (III), (IV), (V) or (VI) above. In the event that Borrower
delivered to Administrative Agent an Extension LC in connection with Borrower’s satisfaction of the conditions specified in Section 2.5(b)(iv) the
same Extension LC may satisfy the conditions specified in Section 2.5(b)(vi), and vis a versa; provided the amount
of such Extension LC shall always equal the greater of the two such requirements. If Borrower has delivered an Extension LC in connection
with satisfaction of the conditions necessary to effectuate the First Extension Term and Borrower satisfies the conditions necessary
to effectuate the Second Extension Term without regard to such Extension LC, then, provided there is no Event of Default then
continuing, such Extension LC shall be returned to Borrower no later than ten (10) Business Days following the commencement of the
Second Extension Term.
(f) Extension
Cash Collateral. All Extension Cash Collateral shall be held by Administrative Agent as additional collateral for the Loan and, following
the occurrence and during the continuance of an Event of Default, may be applied to the payment of the Debt in Administrative Agent’s
sole and absolute discretion. In the event that Borrower delivered to Administrative Agent Extension Cash Collateral in connection with
Borrower’s satisfaction of the conditions specified in Section 2.5(b)(iv) the same Extension Cash Collateral may
satisfy the conditions specified in Section 2.5(b)(vi), and vis a versa; provided the amount of such Extension Cash
Collateral shall always equal the greater of the two such requirements. If Borrower has delivered Extension Cash Collateral in connection
with satisfaction of the conditions necessary to effectuate the First Extension Term and Borrower satisfies the conditions necessary
to effectuate the Second Extension Term without regard to such Extension Cash Collateral, then, provided there is no Event of
Default then continuing, such Extension Cash Collateral shall be returned to Borrower no later than ten (10) Business Days following
the commencement of the Second Extension Term.
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2.6 Interest
Rate.
(a) Subject
to the terms and conditions of this Section 2.6 and Section 2.9, the Loan shall bear interest at the Applicable
Rate calculated as set forth in Section 2.7 below. The Applicable Rate applicable to an Interest Period shall be determined
by Administrative Agent as set forth herein.
(b) In
the event that Administrative Agent shall have determined in its sole but good faith discretion that the Term SOFR Rate Index cannot
be determined as provided in the definition of Term SOFR Rate Index as set forth herein or Administrative Agent shall have reasonably
determined that the Term SOFR Rate Index has been succeeded by an Alternate Rate Index (and Administrative Agent has generally made such
determination with respect to similarly situated borrowers with similar loans), then Administrative Agent shall forthwith give notice
thereof by telephone of such fact, confirmed in writing, to Borrower at least one (1) Business Day prior to the Determination Date.
If such notice is given, the Loan shall be converted, from and after the first day of the next succeeding Interest Period, (i) to
an Alternate Rate Loan bearing interest based on the Alternate Rate in effect on the related Determination Date provided that
(1) Administrative Agent has determined in its sole but good faith discretion that the Term SOFR Rate Index has been succeeded by
the Alternate Rate Index and (2) Administrative Agent has received evidence satisfactory to Administrative Agent that conversion
to an Alternate Rate Loan does not violate ERISA or (ii) at Administrative Agent’s option (if Administrative Agent has generally
elected such option with respect to similarly situated borrowers with similar loans), to a Prime Rate Loan bearing interest based on
the Prime Rate in effect on the related Determination Date. Notwithstanding any provision of this Agreement to the contrary, in no event
shall (x) Borrower have the right to convert (i) a SOFR Rate Loan to a Prime Rate Loan or an Alternate Rate Loan, (ii) an
Alternate Rate Loan to a SOFR Rate Loan or a Prime Rate Loan, or (iii) a Prime Rate Loan to a SOFR Rate Loan or an Alternate Rate
Loan, and (y) the Prime Rate be less than the Minimum Rate or the Alternate Rate be less than the Minimum Rate.
(c) If,
pursuant to the terms of Section 2.6(b) above, the Loan has been converted to a Prime Rate Loan but thereafter either
(i) the Term SOFR Rate Index can again be determined as provided in the definition of Term SOFR Rate Index as set forth herein or
(ii) Administrative Agent has determined in good faith (which determination shall be conclusive and binding upon Borrower absent
manifest error) that the Term SOFR Rate Index has been succeeded by an Alternate Rate Index and the conditions set forth in Section 2.6(b) above
are satisfied, Administrative Agent may give written notice thereof to Borrower and convert a Prime Rate Loan to a SOFR Rate Loan or
to an Alternate Rate Loan, as applicable, by delivering to Borrower written notice of such conversion no later than 2:00 p.m. (New
York City time), five (5) Business Days prior to the next succeeding Determination Date. If such notice is given, the Loan shall
be converted, from and after the first day of the next succeeding Interest Period, to a SOFR Rate Loan or an Alternate Rate Loan, as
applicable, bearing interest based on the Term SOFR Rate Index or the Alternate Rate Index, as applicable, in effect on the related Determination
Date.
(d) If
any requirement of law or any change therein or in the interpretation or application thereof, shall hereafter make it unlawful for Lenders
to make or maintain a SOFR Rate Loan or an Alternate Rate Loan as contemplated hereunder, (i) the obligation of Lenders hereunder
to make a SOFR Rate Loan or an Alternate Rate Loan or to convert a Prime Rate Loan to a SOFR Rate Loan or an Alternate Rate Loan shall
be canceled forthwith and (ii) any outstanding SOFR Rate Loan or Alternate Rate Loan shall be converted automatically to a Prime
Rate Loan on the first day of the next succeeding Interest Period or within such earlier period as required by law.
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(e) Borrower
agrees to indemnify Administrative Agent and each Lender and to hold Administrative Agent and each Lender harmless from any Losses (but
expressly excluding Excluded Liabilities) which Administrative Agent or any Lender sustains or incurs as a consequence of (i) any
default by Borrower in payment of the principal of or interest on an Applicable Interest Rate Loan, including, without limitation, any
such loss or expense arising from interest or fees payable by Administrative Agent or any Lender to lenders of funds obtained by it in
order to maintain an Applicable Interest Rate Loan hereunder, (ii) any prepayment (whether voluntary or mandatory) of the Applicable
Interest Rate Loan on a day that (A) is not a Payment Date or (B) is a Payment Date if Borrower did not give the prior written
notice of such prepayment required pursuant to the terms of this Agreement, including, without limitation, such loss or expense arising
from interest or fees payable by Administrative Agent or any Lender to lenders of funds obtained by it in order to maintain the Applicable
Interest Rate Loan hereunder and (iii) the conversion pursuant to the terms of this Section 2.6, including, without
limitation, such loss or expenses arising from interest or fees payable by Administrative Agent or any Lender to lenders of funds obtained
by it in order to maintain an Applicable Interest Rate Loan hereunder (the amounts referred to in clauses (i), (ii) and
(iii) are herein referred to collectively as the “Breakage Costs”). Lender’s notice of such costs,
as certified to Borrower, shall be conclusive absent manifest error. This provision shall survive payment of the Note in full and the
satisfaction of all other obligations of Borrower under this Agreement and the other Loan Documents.
2.7 Interest
Calculation. Interest on the Principal Amount shall be calculated by (i) multiplying (a) the actual number of days in the
period for which the calculation is being made by (b) a daily rate based on a three hundred sixty (360) day year (that is, the Applicable
Rate or the Default Rate, as then applicable, expressed as an annual rate divided by 360) by (c) the Principal Amount plus the outstanding
principal balance of the Mortgage Loan, and then (ii) subtracting the amount of interest actually paid by Borrower on the Mortgage
Loan for the period for which the calculation is being made.
2.8 General
Provisions as to Payments.
2.8.1 Borrower
shall pay to Administrative Agent (for the benefit of Lenders) on each Payment Date up to and including the Maturity Date, interest on
the Principal Amount at the Applicable Rate, payable in arrears, which payments shall be applied first to interest due for the related
Interest Period at the Applicable Rate, as applicable, for such related Interest Period and then to the Principal Amount due in accordance
with this Agreement, and lastly, to any other amounts due and unpaid pursuant to the Loan Documents hereto.
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2.8.2 Borrower
shall make each payment of principal of, and interest on, the Loan and of fees hereunder, not later than 1:00 p.m. (New York City
time) on the date when due, in Federal or other funds immediately available in New York City, to Administrative Agent at the office of
Administrative Agent at the address set forth on the signature page of this Agreement, and any funds received by Administrative
Agent or any Lender after such time shall, for all purposes hereof, be deemed to have been paid on the next succeeding Business Day.
Subject to the provisions of Section 2.17, all amounts due hereunder shall be payable, without any counterclaim, setoff or
deduction whatsoever, to Administrative Agent at the office of Administrative Agent at the address set forth on the signature page of
this Agreement, or at such other place as Administrative Agent may from time to time designate in writing. Administrative Agent shall
distribute to each Lender its ratable share of each such payment received by Administrative Agent for the account of Lenders within two
(2) Business Days of Administrative Agent’s receipt thereof. Whenever any payment of principal of, or interest on, the Principal
Amount or of fees shall be due on a day which is not a Business Day, the date for payment thereof shall be the immediately succeeding
Business Day. If the date for any payment of principal is extended by operation of law or otherwise, interest thereon shall be payable
for such extended time.
2.8.3 Borrower
shall pay to Administrative Agent (for the benefit of Lenders) on the Maturity Date the Principal Amount, all accrued and unpaid interest
(including any interest applicable to the Maturity Date itself) and all other amounts due hereunder and under the Note, the Pledge Agreements,
the Mortgage and the other Loan Documents.
2.8.4 Borrower
irrevocably and unconditionally acknowledges and agrees that any Specified Priority Payments may, at any time or from time to time, result
in an increase in the weighted average interest rate of the Loan and the Mortgage Loan; and there shall be no reduction, or deemed reduction,
of the Applicable Rate (including, without limitation, any spread component thereof) as a result of any Specified Priority Payment.
2.9 Default
Interest. Upon the occurrence and during the continuance of an Event of Default, and from and after the Maturity Date, if the entire
Principal Amount is not repaid as of the Maturity Date, interest on the outstanding principal balance of the Loan and, to the extent
permitted by law, overdue interest and other amounts due in respect of the Loan shall accrue at the Default Rate calculated from the
date such payment was due without regard to any grace or cure periods contained herein. Interest at the Default Rate shall be computed
from the occurrence of the Event of Default until the actual receipt and collection of the Debt (or that portion thereof that is then
due). To the extent permitted by applicable law, interest at the Default Rate shall be added to the Debt, shall itself accrue interest
at the same rate as the Loan and shall be secured by the Pledge Agreements and the Mortgage. This Section 2.9 shall not be
construed as an agreement or privilege to extend the date of the payment of the Debt, nor as a waiver of any other right or remedy accruing
to Administrative Agent by reason of the occurrence of any Event of Default; and Administrative Agent retains its rights hereunder to
accelerate and to continue to demand payment of the Debt upon the happening of any Event of Default.
2.10 Application
of Payments. All amounts advanced by Administrative Agent and/or Lenders pursuant to the applicable provisions of the Loan Documents
together with any interest thereon at the Applicable Rate or at the Default Rate or other charges as provided therein, shall be due and
payable hereunder as provided in the Loan Documents. In the event any such advance or charge is not so repaid by Borrower, Administrative
Agent may, at its option, first apply any payments received hereunder to repay such advances, together with any interest thereon, or
other charges, fees, expenses and obligations as provided in the Loan Documents, and the balance, if any, shall be applied in payment
of any installment of interest or principal then due and payable.
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2.11 Late
Payment Charge. If any principal, interest or any other sum due under the Loan Documents (other than the Principal Amount due and
payable on the Maturity Date) is not paid by Borrower on or prior to the date on which it becomes due (except if such amount is to be
paid from an Advance that any Lender fails to fund, or from a Reserve that Administrative Agent fails to disburse, when obligated to
do so hereunder), Borrower shall pay to Administrative Agent (for the benefit of Lenders) within ten (10) Business Days after receipt
of written demand an amount equal to four percent (4.0%) of such unpaid sum (the “Late Payment Charge”) in order to
defray the expense incurred by Lenders in handling and processing such delinquent payment and to compensate Lenders for the loss of the
use of such delinquent payment. Any such amount shall be secured by this Agreement, the Pledge Agreements, the Mortgage and the other
Loan Documents to the extent permitted by applicable law.
2.12 Usury
Savings. This Agreement, the Note and the other Loan Documents are subject to the express condition that at no time shall Borrower
be obligated or required to pay interest on the Principal Amount at a rate which could subject Administrative Agent and/or Lenders to
either civil or criminal liability as a result of being in excess of the Maximum Legal Rate. If, by the terms of this Agreement or the
other Loan Documents, Borrower is at any time required or obligated to pay interest on the Principal Amount at a rate in excess of the
Maximum Legal Rate, then the Applicable Rate or the Default Rate, as the case may be, shall be deemed to be immediately reduced to the
Maximum Legal Rate and all previous payments in excess of the Maximum Legal Rate shall be deemed to have been payments in reduction of
principal and not on account of the interest due under the Note. All sums paid or agreed to be paid to Administrative Agent for the use,
forbearance, or detention of the sums due under the Loan, shall, to the extent permitted by applicable law, be amortized, prorated, allocated,
and spread throughout the full stated term of the Loan until payment in full so that the rate or amount of interest on account of the
Loan does not exceed the Maximum Legal Rate of interest from time to time in effect and applicable to the Loan for so long as the Loan
is outstanding.
2.13 Prepayments.
2.13.1 Optional
Prepayments.
(a) Borrower
may prepay the Loan in whole (or in part), provided that (i) Borrower gives Administrative Agent not less than thirty (30)
and not more than ninety (90) days’ prior written notice that Borrower intends to prepay (the “Prepayment Notice”)
(provided that, Borrower shall have the right to revoke such Prepayment Notice no later than 12:00 P.M. New York City time
of the date of the prepayment set forth in such Prepayment Notice); [(ii) Borrower is simultaneously prepaying the entire Mortgage
Loan,] and (iii) Borrower pays Administrative Agent, in addition to the Principal Amount to be prepaid, (A) all sums due and
payable under this Agreement, the Note, and the other Loan Documents, including, but not limited to, accrued and unpaid interest at the
Applicable Rate through the last day of the applicable Interest Period, Breakage Costs and all of Administrative Agent’s out-of-pocket
costs and expenses (including reasonable out-of-pocket attorney’s fees and disbursements) actually incurred by Administrative Agent
in connection with such prepayment, (B) the portion of the Exit Fee payable in respect of such prepayment (calculated on the Principal
Amount to be prepaid under this Loan Agreement), and (C) the Additional Interest. If a Prepayment Notice is given by Borrower to
Administrative Agent pursuant to this Section 2.13, the outstanding principal amount of the Loan and all other sums required
hereunder shall be due and payable no later than the proposed prepayment date set forth in the Prepayment Notice (unless Borrower revokes
such notice in accordance with the terms of this Section 2.13.1(a)). Borrower hereby agrees that, in the event Borrower delivers
a Prepayment Notice and (i) revokes such Prepayment Notice as set forth in this Section 2.13 and/or (ii) fails
to prepay the Loan in accordance with the Prepayment Notice and the terms of this Section 2.13.1(a) (a “Prepayment
Failure”), Borrower shall pay to Administrative Agent, within ten (10) Business Days after receipt of demand, all actual
out-of-pocket costs, expenses and losses suffered by Administrative Agent and each Lender with respect to such Prepayment Failure. Any
prepayment under this Section 2.13 shall be applied by Administrative Agent in accordance with Section 2.14.
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(b) Priority
Payments. Borrower may cause Mortgage Borrower to prepay a portion of the Mortgage Loan in connection with one or more Extension
Prepayments or Debt-Service Trigger Period Prepayments pursuant to, and in accordance with, the terms and conditions set forth in this
Agreement, the Mortgage Loan Agreement, the other Loan Documents and the other Mortgage Loan Documents.
2.13.2 Mandatory
Prepayments. In the event of (i) a Total Loss, (ii) a Transfer of all or a portion of the Property or the Collateral in
violation of the terms of this Agreement or the Mortgage Loan Agreement, (iii) any refinancing of the Mortgage Loan, or (iv) the
receipt by Mortgage Borrower of any proceeds realized under the Owner’s Title Policy after application of such proceeds by Mortgage
Borrower to cure any title defect and repay the Mortgage Loan in full (each, a “Liquidation Event”), Borrower shall
cause the related Net Liquidation Proceeds to be paid directly to Administrative Agent (a “Mandatory Prepayment”).
On each next occurring Payment Date following the date on which Administrative Agent actually receives a distribution of Net Liquidation
Proceeds, Borrower shall be deemed to have prepaid the outstanding principal balance of the Loan in an amount equal to one hundred percent
(100%) of such Net Liquidation Proceeds (and Administrative Agent shall make such Mandatory Prepayment on behalf of Borrower from the
Net Liquidation Proceeds). Once Borrower has knowledge that a Liquidation Event has occurred, Borrower shall, or shall cause Mortgage
Borrower, to promptly deliver written notice of such Liquidation Event to Administrative Agent. Borrower shall be deemed to have knowledge
of (i) a sale (other than a foreclosure sale) of all or any portion of the Property on the date on which an unconditional contract
for sale for such sale is entered into by (or on behalf of) Mortgage Borrower, and a foreclosure sale, on the date notice of such foreclosure
sale is received by Borrower or Mortgage Borrower or any Affiliate of the foregoing, and (ii) a refinancing, on the date on which
a commitment for such refinancing has been entered into by (or on behalf of ) Borrower or Mortgage Borrower. The provisions of this Section 2.13.2
shall not be construed to contravene in any manner the restrictions and other provisions regarding refinancing of the Mortgage Loan or
the Transfer of the Property set forth in this Agreement, the other Loan Documents and the Mortgage Loan Documents.
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2.13.3 Prepayments
After Event of Default.
(a) Intentionally
Omitted.
(b) Subject
to Section 2.13.2(a) above, if (A) during the continuance of an Event of Default or (B) following the acceleration
of all or any portion of the Debt, (x) payment of all or any part of the Debt is tendered by Borrower (voluntarily or involuntarily),
a purchaser at foreclosure, or any other Person (which such payment shall be deemed an attempt to circumvent the prohibition against
prepayment set forth in subclause (A) above), (y) Administrative Agent or any Lender obtains a recovery of all or a
portion of the Debt (through an exercise of remedies hereunder or under the other Loan Documents or otherwise), or (z) the Debt
is deemed satisfied (in whole or in part) through an exercise of remedies hereunder or under the other Loan Documents or at law, then
notwithstanding anything to the contrary contained herein or in any other Loan Document, (1) the Principal Amount, all accrued and
unpaid interest, the Exit Fee, the Additional Interest, Breakage Costs, and all other amounts payable under the Loan Documents shall
be deemed due and payable hereunder, (2) all sums tendered to, or received by, Administrative Agent shall be applied to the Debt
in such order and priority as may be determined by Administrative Agent in its sole discretion and (3) the receipt or application
of any such sums shall in no event constitute a waiver of any of Administrative Agent’s and Lenders’ rights and remedies
with respect to any such Event of Default, unless resulting in the indefeasible satisfaction of the Debt in full.
(c) Prepayments
During Debt-Service Trigger Period. Notwithstanding anything to the contrary contained herein, at any time that a Debt-Service Trigger
Period exists, Borrower shall have the right, so long as no Event of Default has occurred and is continuing, to deliver a Prepayment
Notice (provided, that Borrower shall have the right to revoke or postpone such Prepayment Notice no later than 12:00 p.m. New
York City time of the date of the prepayment set forth in such Prepayment Notice) and thereafter prepay a portion of the Loan sufficient
to cause a Debt-Service Cure to be achieved as of the subsequent date of determination with respect thereto (such prepayment, a “Debt-Service
Trigger Period Prepayment”); provided, that, in connection with such prepayment, Borrower shall pay to Administrative
Agent the portion of the Exit Fee payable in respect of such prepayment, any Breakage Costs (if applicable), and all of Administrative
Agent’s out-of-pocket costs and expenses (including reasonable out-of-pocket attorney’s fees and disbursements) incurred
by Administrative Agent in connection with such prepayment and all other amounts required pursuant to Section 2.13.1.
2.14 Application
of Prepayments.
2.14.1 Generally.
(a) Notwithstanding
anything to the contrary, subject to the terms of Section 2.13.3, during the continuance of an Event of Default, all prepayments
and repayments shall be allocated and applied in Administrative Agent’s sole and absolute discretion.
(b) Subject
to paragraph (a) above, all prepayments and repayments allocable to the Loan under this Section 2.14 shall be applied
in the following order of priority: (a) first, to accrued but unpaid interest on the Loan until the same is paid in full, and then
to the balance of the Loan until the Principal Amount (together with the applicable portion of the Exit Fee hereunder) and any other
amounts due and payable hereunder are paid in full; (b) second, to the Additional Interest (in the case of a prepayment or repayment
of the Loan in full); (c) third, to any Breakage Costs, and (d) fourth, to any other amounts due and payable hereunder.
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2.14.2 Intentionally
Omitted.
2.15 Intentionally
Omitted.
2.16 Release
of Collateral. (a) If Borrower has elected to prepay the entire Debt and the requirements of Section 2.13, Section 2.14
and this Section 2.16 have been satisfied, all of the Collateral shall be released from the Lien of the Pledge Agreements.
In the event that a restrictive covenant was recorded against the Property in accordance with Section 2.16 of the Senior
Loan Agreement, (i) the restrictive covenant shall automatically terminate upon the payment in full of the entire Debt, and (ii) Administrative
Agent shall reasonably cooperate with Borrower, at Borrower’s request and at Borrower’s sole cost and expense, to release
the restrictive covenant upon payment in full of the entire Debt.
(a) In
connection with the release of the Pledge Agreements and the Mortgage, Borrower shall submit to Administrative Agent, not less than five
(5) Business Days prior to the date of repayment, a release of Lien (and related Loan Documents) for the Collateral and the Property
for execution by Administrative Agent and Lenders. Such release shall be in a form appropriate in the jurisdiction of the Borrower and/or
in which the Property is located, as applicable, and that would be satisfactory to a prudent lender and in the case of a release of the
Property, contains standard provisions, if any, protecting the rights of the releasing lender. In addition, Borrower shall provide all
other documentation that Administrative Agent or any Lender reasonably requires to be delivered by Borrower in connection with such release.
Borrower shall reimburse Administrative Agent, each Lender and Servicer for any out-of-pocket costs and expenses Administrative Agent,
each Lender and Servicer actually incur arising from such release (including reasonable out-of-pocket attorneys’ fees and expenses)
and Borrower shall pay, in connection with such release, (i) all recording charges, filing fees, taxes or other expenses payable
in connection therewith, and (ii) to any Servicer, the current fee being assessed by such Servicer to effect such release.
2.17 Taxes.
2.17.1 Any
and all payments by or on account of any obligation of Borrower under any Loan Document shall be made without deduction or withholding
for any Taxes, except as required by applicable law. If any applicable law (as determined in the good faith discretion of an applicable
Withholding Agent) requires the deduction or withholding of any Tax from any such payment by a Withholding Agent, then the applicable
Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to
the relevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax, then the sum payable by
Borrower shall be increased as necessary so that after such deduction or withholding for Indemnified Taxes has been made (including such
deductions and withholdings for Indemnified Taxes applicable to additional sums payable under this Section 2.17) the applicable
Recipient receives an amount equal to the sum it would have received had no such deduction or withholding for Indemnified Taxes been
made.
2.17.2 Borrower
shall timely pay to the relevant Governmental Authority in accordance with applicable law, or at the option of Administrative Agent timely
reimburse it for the payment of, any Other Taxes.
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2.17.3 Borrower
shall indemnify each Recipient, within ten (10) Business Days after receipt of written demand therefor, for the full amount of any
Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 2.17)
payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable out-of-pocket
expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted
by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to Borrower by a Lender
(with a copy to Administrative Agent), or by Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent
manifest error.
2.17.4 Each
Lender shall severally indemnify Administrative Agent, within ten (10) Business Days after receipt of written demand therefor, for
(i) any Indemnified Taxes attributable to such Lender (but only to the extent that Borrower has not already indemnified Administrative
Agent for such Indemnified Taxes and without limiting the obligation of Borrower to do so), (ii) any Taxes attributable to such
Lender’s failure to comply with the provisions of Section 15.6 relating to the maintenance of a Participant Register
and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by Administrative Agent in connection
with any Loan Document, and any reasonable out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Taxes
were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment
or liability delivered to any Lender by Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes
Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable
by Administrative Agent to Lender from any other source against any amount due to Administrative Agent under this Section 2.17.4.
2.17.5 As
soon as practicable after any payment of Taxes by Borrower to a Governmental Authority pursuant to this Section 2.17, Borrower
shall deliver to Administrative Agent a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a
copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to Administrative Agent.
2.17.6 Any
Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall
deliver to Borrower and Administrative Agent, at the time or times reasonably requested by Borrower or Administrative Agent, such properly
completed and executed documentation reasonably requested by Borrower or Administrative Agent as will permit such payments to be made
without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by Borrower or Administrative
Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by Borrower or Administrative Agent
as will enable Borrower or Administrative Agent to determine whether or not such Lender is subject to backup withholding or information
reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission
of such documentation (other than such documentation set forth in Section 2.17.6(a), (b) and (d) below)
shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender
to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender. Without limiting
the generality of the foregoing,
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(a) any
Lender that is a U.S. Person shall deliver to Borrower and Administrative Agent on or prior to the date on which such Lender becomes
a Lender under this Agreement (and from time to time thereafter upon the reasonable request of Borrower or Administrative Agent), executed
copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax;
(b) any
Foreign Lender shall, to the extent it is legally entitled to do so, deliver to Borrower and Administrative Agent (in such number of
copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement
(and from time to time thereafter upon the reasonable request of Borrower or Administrative Agent), whichever of the following is applicable:
(i) in
the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect
to payments of interest under any Loan Document, executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, establishing
an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and
(y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN or IRS Form W-8BEN-E,
as applicable, establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits”
or “other income” article of such tax treaty;
(ii) executed
copies of IRS Form W-8ECI;
(iii) in
the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code,
(x) an executed copy of a certificate substantially in the form of Exhibit F-1 to the effect that such Foreign Lender
is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder”
of Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described
in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed copies of
IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable; or
(iv) to
the extent a Foreign Lender is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS
Form W-8BEN, IRS Form W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit F-2
or Exhibit F-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided
that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio
interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit F-4
on behalf of each such direct and indirect partner;
(c) any
Foreign Lender shall, to the extent it is legally entitled to do so, deliver to Borrower and Administrative Agent (in such number of
copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement
(and from time to time thereafter upon the reasonable request of Borrower or Administrative Agent), executed copies of any other form
prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together
with such supplementary documentation as may be prescribed by applicable law to permit Borrower or Administrative Agent to determine
the withholding or deduction required to be made;
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(d) if
a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were
to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of
the Code, as applicable), such Lender shall deliver to Borrower and Administrative Agent at the time or times prescribed by law and at
such time or times reasonably requested by Borrower or Administrative Agent such documentation prescribed by applicable law (including
as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by Borrower or
Administrative Agent as may be necessary for Borrower and Administrative Agent to comply with their obligations under FATCA and to determine
that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from
such payment. Solely for purposes of this clause (d), “FATCA” shall include any amendments made to FATCA after the
date of this Agreement;
(e) Each
Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it
shall update such form or certification or promptly notify Borrower and Administrative Agent in writing of its legal inability to do
so; and
(f) Administrative
Agent shall deliver an IRS Form W-9 on or prior to the date of this Agreement. Any successor Administrative Agent shall deliver
an IRS Form W-9 or IRS Form W-8, as applicable, on or prior to the date on which such successor Administrative Agent becomes
the Administrative Agent under this Agreement.
2.17.7 If
any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been
indemnified pursuant to this Section 2.17 (including by the payment of additional amounts pursuant to this Section 2.17),
it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section 2.17
with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party
and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying
party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this Section 2.17.7
(plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party
is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this Section 2.17.7,
in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this Section 2.17.7
the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have
been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and
the indemnification payments or additional amounts with respect to such Tax had never been paid. This Section 2.17 shall
not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that
it deems confidential) to the indemnifying party or any other Person.
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2.17.8 Each
party’s obligations under this Section 2.17 shall survive the resignation or replacement of Administrative Agent or
any assignment of rights by, or the replacement of, a Lender and the repayment, satisfaction or discharge of all obligations under any
Loan Document.
2.17.9 The
parties hereto agree that the Additional Interest shall be treated as interest for U.S. federal tax purposes, unless otherwise required
by law.
2.18 Designations
of Different Lending Office.
(a) Designation
of a Different Lending Office. If any Lender requests compensation under Section 2.19, or requires Borrower to pay any
Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.17,
then such Lender shall (at the request of Borrower) use reasonable efforts to designate a different lending office for funding or booking
its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment
of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.17
or 2.19, as the case may be, in the future, and (ii) would not subject such Lender to any unreimbursed cost or expense and
would not otherwise be disadvantageous to such Lender. Borrower hereby agrees to pay all reasonable costs and expenses actually incurred
by any Lender in connection with any such designation or assignment.
(b) Replacement
of Lenders.
(i) If
Borrower is required to pay any amounts pursuant to Section 2.19(a) or Section 2.19(b) and the amount
in question is equal to or less than the applicable Lender’s Increased Costs Threshold, then Borrower shall pay all such amounts
in accordance with Section 2.19(a) or Section 2.19(b), as applicable.
(ii) If
Borrower is required to pay any amounts pursuant to Section 2.17, Section 2.19(a) or Section 2.19(b) and
the amount in question is in excess of the applicable Lender’s Increased Costs Threshold, then Borrower shall pay all such amounts
in accordance with Section 2.17, Section 2.19(a) or Section 2.19(b), as applicable. Notwithstanding
the foregoing, and without limiting in any manner Borrower’s obligation to timely make all payments required pursuant to this Section 2.18,
if no Event of Default is then continuing, within thirty (30) days after Borrower is notified by Administrative Agent or any Lender of
any amounts due from Borrower pursuant to Section 2.17, Section 2.19(a) or Section 2.19(b) in
an amount that exceeds the applicable Lender’s Increased Costs Threshold, Borrower may provide a notice (a “Replacement
Notice”) to Administrative Agent and such Lender that Borrower desires to identify and obtain a commitment to lend from an
Eligible Assignee. If Borrower so delivers a Replacement Notice and no Lender elects to acquire the Outgoing Lender’s (defined
below) interest in the Loan within ten (10) Business Days of receipt of the Replacement Notice, then, Borrower shall have a period
of ninety (90) days after the expiration of such ten (10) Business Day period (so long as such date does not extend beyond the Maturity
Date) to identify and obtain a commitment to lend from an Eligible Assignee, which such Eligible Assignee shall be acceptable to Administrative
Agent in its reasonable discretion (a “Designated Eligible Assignee”). If Borrower is unable to obtain a commitment
to lend from a Designated Eligible Assignee within such period, Borrower’s right to replace such Lender shall be deemed irrevocably
waived. However, if Borrower shall obtain a commitment to lend from a Designated Eligible Assignee, such Lender (an “Outgoing
Lender”) shall enter into such documentation as shall be required by Administrative Agent in order for such Outgoing Lender
to assign its right, title and interest in and to the Loan to such Designated Eligible Assignee. The Outgoing Lender shall assign its
Note (if any) to such Designated Eligible Assignee and thereafter, such Designated Eligible Assignee shall be a Lender hereunder for
all purposes; provided however, that Borrower shall pay all reasonable out-of-pocket costs and expenses incurred by Administrative
Agent and Lenders in connection with such assignment, including, without limitation, fees and expenses of outside counsel.
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2.19 Increased
Costs.
(a) Increased
Costs Generally. If any Change in Law or compliance by Administrative Agent or any Lender with any request or directive (whether
or not having the force of law) hereafter issued from any central bank or other Governmental Authority shall hereafter:
(i) impose,
modify or hold applicable any reserve, special deposit, compulsory loan or similar requirement against assets held by, or deposits or
other liabilities in or for the account of, advances or loans by, or other credit extended by, or any other acquisition of funds by,
any office of Lender which is not otherwise included in the determination of the Applicable Rate hereunder;
(ii) have
the effect of reducing the rate of return on any Lender’s capital as a consequence of its obligations hereunder to a level below
that which Lender could have achieved but for such adoption, change or compliance (taking into consideration such Lender’s policies
with respect to capital adequacy) by any amount reasonably deemed by such Lender to be material, provided that the foregoing shall
not apply in respect of Taxes;
(iii) subject
any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of
the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments,
or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or
(iv) impose
on Lender any other condition (other than in respect of Taxes) and the result of any of the foregoing is to increase the cost to Lender
of making, renewing or maintaining loans or extensions of credit or to reduce any amount receivable hereunder;
then, in any such case, Borrower shall promptly
pay Administrative Agent, upon demand, any additional amounts necessary to compensate any Lender for such additional cost or reduced
amount receivable which any Lender deems to be material as reasonably determined (a “Gross-Up Payment”) by such Lender.
If any Lender becomes entitled to claim any additional amounts pursuant to this Section 2.19, then Borrower shall pay such
additional amounts with thirty (30) days following Administrative Agent’s written notice to Borrower specifying in reasonable detail
the event by reason of which it has become so entitled and the additional amount required to fully compensate such Lender for such additional
cost or reduced amount. In the event Borrower is required to make a Gross-Up Payment in excess of $2,000,000 and Borrower has not delivered
a Replacement Notice in accordance with Section 2.18(b)(ii), then Borrower shall have the right during the time period set
forth in such written notice, which time period shall not be less than thirty (30) days, to prepay the portion of the Loan in respect
of the Lender that requires a Gross-Up Payment, provided, that, in connection with such prepayment of the Loan, such Lender’s
Commitment is terminated and Borrower pays the applicable Lender, in addition to the outstanding principal amount of the Loan to be prepaid,
(A) all interest which would have accrued on the amount of the Loan to be paid through and including the date of such prepayment;
(B) all other sums due and payable under this Agreement, the Note, and the other Loan Documents, including, but not limited to,
Breakage Costs (if any), the Gross-Up Payment, and all of such Lender’s costs and expenses (including reasonable attorney’s
fees and disbursements) incurred by such Lender in connection with this Section 2.19(a); and (C) to the extent the Loan
is then being prepaid in full, the Additional Interest (if any). A certificate as to any additional costs or amounts payable pursuant
to the foregoing sentence submitted by Administrative Agent or any Lender to Borrower shall be conclusive in the absence of manifest
error. This provision shall survive payment of the Note and the satisfaction of all other obligations of Borrower under this Agreement
and the Loan Documents.
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(b) Capital
Requirements. If any Lender determines that any Change in Law affecting such Lender or any lending office of such Lender or such
Lender’s holding company, if any, regarding capital or liquidity requirements, has or would have the effect of reducing the rate
of return on such Lender’s capital or on the capital of such Lender’s holding company, if any, as a consequence of this Agreement,
the Commitments of such Lender or the loans made by such Lender to a level below that which such Lender or such Lender’s holding
company could have achieved but for such Change in Law (taking into consideration such Lender’s policies and the policies of such
Lender’s holding company with respect to capital adequacy), then from time to time Borrower will pay to such Lender such additional
amount or amounts as will compensate such Lender or such Lender’s holding company for any such reduction suffered.
(c) Certificates
for Reimbursement. A certificate of a Lender setting forth the amount or amounts necessary to compensate such Lender or its holding
company, as the case may be, as specified in Section 2.19(a) or (b) and delivered to Borrower, shall be
conclusive absent manifest error. Borrower shall pay such Lender the amount shown as due on any such certificate within ten (10) days
after receipt thereof.
(d) Delay
in Requests. Failure or delay on the part of any Lender to demand compensation pursuant to this Section 2.19 shall not
constitute a waiver of such Lender’s right to demand such compensation; provided that Borrower shall not be required to
compensate a Lender pursuant to this Section 2.19 for any increased costs incurred or reductions suffered more than one hundred
eighty (180) days prior to the date that such Lender notifies Borrower of the Change in Law giving rise to such increased costs or reductions,
and of such Lender’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased
costs or reductions is retroactive, then the thirty (30) day notice period referred to above shall be extended to include the period
of retroactive effect thereof).
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2.20 Costs
and Advances.
(a) Subject
to the other provisions of this Agreement, all Costs shall be paid from (i) first, disbursements of Loan Advances made by
Lenders pursuant to this Agreement and (ii) second from cash equity.
(b) Advances
shall be made upon satisfaction of the conditions precedent set forth in Section 2.30, and, if applicable (and in addition
to the conditions set forth in Section 2.30), upon satisfaction of the conditions set forth in Section 2.31,
and Section 2.32, except to the extent that Administrative Agent may elect to waive any such conditions precedent in its
sole and absolute discretion. No Advance shall be used to pay any return on any invested capital by Borrower or any direct or indirect
owners of Borrower or Mortgage Borrower. The making of an Advance shall not constitute Administrative Agent or Lenders’ approval
or acceptance of the construction theretofore completed. All conditions precedent to the obligation of Lenders to make Advances are imposed
solely for the benefit of Administrative Agent and Lenders and no other party may require satisfaction of any such condition precedent
or be entitled to assume that Lenders will refuse to make the Loan or any Advance in the absence of strict compliance with such conditions
precedent. Any or all requirements of this Agreement may be waived by Administrative Agent in its sole and absolute discretion, in whole
or in part, at any time and any such waiver shall not be deemed a modification of this Agreement.
(c) Nothing
in this Agreement shall (i) make Administrative Agent or Lenders responsible for making or completing any Required Improvements;
(ii) obligate Administrative Agent or Lenders to commence or proceed with any Required Improvements; (iii) require Administrative
Agent or Lenders to expend or release funds other than Advances on the terms and conditions set forth in this Agreement to complete any
Required Improvements; or (iv) obligate Administrative Agent or Lenders to demand from Borrower additional sums to perform or complete
any Required Improvements.
(d) Lenders
shall not be required to make any Advance in an aggregate amount that is less than $500,000.
2.21 Use
of Advances. Each Advance made to Borrower shall be (x) received and contributed to Mortgage Borrower, held and used by Mortgage
Borrower to pay for Hard Costs and Soft Costs specified within the Budget or as otherwise expressly permitted under this Agreement, as
the case may be, which were specified on the Draw Request for such Advance and in accordance with the Budget or as otherwise expressly
permitted under this Agreement or (y) received, held and used by Borrower for the payment of Debt Service in accordance with the
terms hereof. Notwithstanding anything to the contrary contained herein, the proceeds of the First Advance may be held and used by Borrower
to reimburse its direct and/or indirect members for documented costs and expenses agreed to by Administrative Agent in its sole discretion
incurred in connection with the construction of the Required Improvements.
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2.22 Loan
Borrowing Procedures.
(a) Draw
Requests. Borrower shall submit to Administrative Agent and Construction Consultant a draw request (a “Draw Request”)
substantially in the form required pursuant to Section 2.22(b), not less than ten (10) Business Days prior to the proposed
Advance Date, and, in any event, no more frequently than once in each calendar month. It is expressly acknowledged that the foregoing
time period shall not commence unless and until Administrative Agent shall have received a full Draw Request together with all accompanying
documents required hereunder. Each Draw Request shall specify the Hard Costs and Soft Costs to be paid from the proceeds of the requested
Advance. Such Draw Request shall specify the amount of any Retainage previously withheld and which has then become payable by Mortgage
Borrower and shall also include a request for any disbursements from the Deficiency Account and/or Loan Advance Reserve Account that
Mortgage Borrower may desire, with supporting documentation describing in reasonable detail the basis for any such disbursements. All
Draw Requests shall have been approved by Administrative Agent and, with respect to Hard Costs, recommended for payment by Construction
Consultant.
(b) Required
Documentation. Each Draw Request submitted hereunder shall include the following:
(i) a
requisition letter in the form attached hereto as Exhibit G-1 (each such letter, a “Request for Advance”),
which shall be executed by an Authorized Representative of Borrower;
(ii) a
duly executed, completed and itemized Application and Certificate for Payment in the form of AIA Document No. G702 (including AIA
Form G703 as an attachment thereto), or similar form reasonably approved by Administrative Agent, containing the executed certification
from Architect with respect to the General Contractor’s AIA Form G702 and G703 and the General Contractor (or the applicable
Trade Contractor who will be paid with respect to Trade Contracts, if applicable) as to the accuracy of the same, together with all invoices
relating to all items of cost covered thereby and further accompanied by a cost breakdown showing the cost of work on, and the cost of
materials incorporated into, the Required Improvements to the date of the requisition. The cost breakdown shall also show the percentage
of completion of each Line Item on the Budget. All such applications for payment shall also show all Trade Contractors by name and trade,
the total amount of each Trade Contract, the amount theretofore paid to each Trade Contractor as of the date of such application, and
the amount to be paid from the proceeds of the disbursement in question to each Trade Contractor;
(iii) in
connection with any Advance in respect of which all or portions thereof shall be applied to the final payment to a Trade Contractor,
a duly executed, completed and itemized Contractor’s Affidavit of Payment of Debt and Claim in the form of AIA Document No. G706
from each Trade Contractor;
(iv) each
of the following to the extent applicable: (A) a duly executed lien waiver substantially in the form and substance of Exhibit H-1
hereof from each Trade Contractor (other than the General Contractor), in each case, for work performed and goods, labor and materials
supplied for which payment thereof is requested in such Request for Advance, (B) a duly executed lien waiver substantially in the
form and substance of Exhibit H-2 hereof from the General Contractor for work performed and goods, labor and materials supplied
for which payment thereof is requested in such Request for Advance, and (C) with respect to any request for final payment from a
Trade Contractor, duly executed lien waivers substantially in the form and substance of Exhibit H-3 from such Trade Contractor,
for work performed and goods, labor and materials supplied for which payment thereof is requested in such Request for Advance;
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(v) to
the extent an applicable lien waiver was not provided in accordance with clause (iv)(A) above, except with respect to the
Initial Advance hereunder, evidence of payment (in form and substance reasonably acceptable to Administrative Agent) from each Work Provider
indicating that such Work Provider has been paid in full (less Retainage, if applicable) for all work performed and for goods, labor
and materials supplied for which payment was requested in the immediately preceding Advance;
(vi) a
list of all amendments, supplements or other modifications to the Plans and Specifications, any Construction Agreements and any Construction
Permits not previously delivered to Administrative Agent and Construction Consultant and delivery of a true and complete copy of each
such amendment, supplement or other modification via the Data Room;
(vii) current
requisitions for payment from (A) all Material Trade Contractors, and (B) to the extent the same are delivered to the General
Contractor, any subcontractors;
(viii) a
list of (A) all Trade Contracts and (B) any other Trade Contracts that have been provided to Borrower or Mortgage Borrower
by the General Contractor or of which Borrower is aware, in each case, executed since the date of the then last preceding Advance, and
delivery of a true and complete copy of each such Trade Contract via the Data Room prior to the date of such Draw Request (to the extent
not previously provided);
(ix) a
list of all Change Orders that have not yet been submitted to Administrative Agent on the date of such Draw Request, together with a
statement by Borrower that copies of the same have been submitted to Construction Consultant prior to the date of such Draw Request,
together with a list of any Change Orders then to date and a list of all pending or contemplated Change Orders (including pending or
contemplated Change Orders that Trade Contractors have alleged to General Contractor); and
(x) evidence
reasonably satisfactory to Administrative Agent that the full amount of the portion of the proceeds of the then last preceding Advance
have been paid out in full to the Persons with respect to whom such Advance was made and otherwise in accordance with this Agreement.
(c) Conditions
Precedent. Administrative Agent and Lenders shall not be obligated to make any disbursement of the Loan unless Administrative Agent
is reasonably satisfied that the applicable conditions precedent to the making of such disbursement, as set forth in Sections 2.20,
2.21, 2.22, 2.23, 2.25, 2.29, 2.30, 2.31, 2.32, and 2.33, as applicable,
of this Agreement, have been satisfied, and remain satisfied as of the applicable Advance Date, by Borrower (or waived in writing by
Administrative Agent in its sole discretion).
(d) One
Advance Per Month. Administrative Agent and Lenders shall have no obligation to make Advances more often than once in each calendar
month, except that Administrative Agent, in its sole discretion, shall have the right but not the obligation, to make and to require
Lenders to make additional advances per month for the purpose of making payments of the nature referred to in Section 2.22(e) and
Section 2.26.
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(e) Advances
to Pay Interest and Expenses. Subject to the remaining provisions of this Section 2.22(e), Borrower hereby irrevocably
requests that Administrative Agent and Lenders make an Advance on each Payment Date to pay interest due hereunder at such time and (so
long as (i) no Event of Default is then continuing, (ii) the Minimum Equity Requirement has been satisfied, (iii) intentionally
omitted, (iv) intentionally omitted, and (v) amounts remaining to be advanced hereunder and under the Mortgage Loan Agreement
that have not been allocated to other Costs are sufficient to make such payment) Lenders shall make an Advance on each Payment Date to
pay interest due hereunder at such time. Without limiting the foregoing, Administrative Agent shall at all times have the right (but
not the obligation), by its own action, upon five (5) Business Days’ prior written notice to Borrower, to make Advances for
the purpose of paying any servicing fee payable to Servicer and required to be paid by Borrower pursuant to the terms of this Agreement,
any fees payable to Administrative Agent and/or Lenders and any other sums then due and payable to Administrative Agent and/or Lenders
with respect to the Loan pursuant to this Agreement. Promptly following each such payment, or upon a written request from Borrower, Administrative
Agent or Servicer shall send to Borrower a statement indicating the interest or other payment made in connection with any such Advance.
Borrower shall have the right to terminate any automatic Advances with respect to interest payments by delivering written notice of same
to Administrative Agent at least five (5) Business Days prior to a Payment Date. Notwithstanding anything to the contrary contained
in this Agreement or in any of the other Loan Documents, during the continuance of an Event of Default, Administrative Agent shall have
the right, but not the obligation, to make Advances to pay interest, expenses, reimbursables and other amounts due and payable under
the Loan Documents.
(f) Loan
Advance Reserve Account. All funds that are deposited with Administrative Agent pursuant to Section 2.5(d) shall
be held in the Loan Advance Reserve Account. Subject to Borrower’s compliance with the terms and conditions relating to Advances
for the payment or reimbursement of Hard Costs and Soft Costs, as applicable, hereunder, Administrative Agent shall disburse the Loan
Advance Funds to Borrower pursuant to Sections 2.20, 2.22, 2.24, 2.30, 2.31, 2.32 and 2.33,
as applicable, to pay Hard Costs and Soft Costs.
2.23 Advances
for Stored Materials. Administrative Agent and Lenders shall in no event or under any circumstances have any obligation to make any
disbursement of the Loan for or with respect to materials, equipment, machinery, or other personal property not yet incorporated into
the Required Improvements, unless the following conditions are satisfied:
(a) On-Site
Stored Materials. Administrative Agent and Lenders shall make Advances of the Loan in accordance with this Agreement to pay for Hard
Costs actually incurred by Mortgage Borrower for materials not yet incorporated into the Improvements but stored on site at the Real
Property, which materials are required in connection with the construction of the Required Improvements (“On-Site Stored Materials”),
provided that the On-Site Stored Materials Conditions are satisfied. The aggregate amount of all amounts paid (whether comprised
of Loan Advances, Mortgage Loan Advances and/or any other funds paid by or on behalf of Borrower or Mortgage Borrower) with respect to
deposits for On-Site Stored Materials outstanding at any time shall in no event exceed Five Million and 00/100 Dollars ($5,000,000).
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(b) Off-Site
Stored Materials. Administrative Agent and Lenders shall in no event or under any circumstances have any obligation to make any disbursement
of the Loan for or with respect to materials which are stored other than on the Real Property (“Off-Site Stored Materials”)
unless (A) the Off-Site Stored Materials Conditions are satisfied, (B) the conditions contained in Section 2.23(d) below
are satisfied with respect to such Off-Site Stored Materials and (C) all such Off-Site Stored Materials covered by an Advance hereunder
are (i) safely and suitably stored at one or more locations reasonably approved by Administrative Agent, other than on the Real
Property, (ii) conspicuously marked to show that they are the subject of a security interest by Administrative Agent (or other arrangements
reasonably satisfactory to Administrative Agent with respect thereto are made), (iii) not moved except in connection with delivery
of such materials to the Real Property or to another storage location that conforms with the requirements of this Section 2.23(b);
and (iv) effectively segregated (to the extent reasonably possible) from all other materials of whatever kind located at the off-site
location in question; and (B) Borrower is in compliance with the terms and conditions of Section 2.23(d). The aggregate
amount of all amounts paid (whether comprised of Loan Advances, Mortgage Loan Advances and/or any other funds paid by or on behalf of
Borrower or Mortgage Borrower) with respect to deposits for Off-Site Stored Materials outstanding at any time shall in no event exceed
the lesser of (i) Thirty Million Dollars ($30,000,000) and (ii) the amount covered by Mortgage Borrower’s insurance.
Notwithstanding anything to the contrary, from and after July 1, 2024, any costs for storage of Off-Site Stored Materials shall
be paid solely using additional equity contributions and not Loan Advances. In addition, Mortgage Borrower shall not use funds, whether
comprised of Loan Advances, Mortgage Loan Advances and/or any other funds paid by or on behalf of Borrower or Mortgage Borrower to pay
for Off-Site Stored Materials unless such Off-Site Stored Materials are or will be stored at the locations described in on Schedule
XXI, as may be updated by Borrower from time to time. Borrower shall not allow Mortgage Borrower to store any Off-Site Stored Materials
at any location which is not on Schedule XXI without at least ten (10) Business Days’ prior notice with an update to
Schedule XXI and execution of such documents and instruments reasonably required by Administrative Agent to create or perfect
Lenders’ security interests in the Off-Site Stored Materials at such location (any such location, an “Off-Site Storage
Location”).
(c) Prefabrication
Deposits. Lenders shall from time to time make disbursements of the Loan in accordance with the terms of this Agreement to pay for
deposits (collectively, “Prefabrication Deposits”) that Mortgage Borrower is required to post towards materials not
yet fully fabricated (not ready for installation at the Property or incorporation in the Required Improvements) and other materials that
are required in connection with the construction and equipping of the Required Improvements but for which title has not yet passed to
Mortgage Borrower and, accordingly, a perfected security interest cannot be given to Administrative Agent, provided that, the
aggregate of all amounts paid (whether comprised of Loan Advances, Mortgage Loan Advances and/or any other funds paid by or on behalf
of Borrower or Mortgage Borrower) with respect to Prefabrication Deposits outstanding at any time shall in no event exceed Fifteen Million
and 00/100 Dollars ($15,000,000).
(d) All
Stored Materials. The aggregate amount paid in respect of stored materials described in the foregoing provisions of this Section 2.23
that are not incorporated into the Required Improvements (in each case, whether paid from Loan Advances, Mortgage Loan Advances or other
funds paid by or on behalf of Borrower or Mortgage Borrower), whether or not such materials are stored at the Project and including FF&E,
shall not exceed at any one time the lesser of (i) Seventy-Fifty Million and 00/100 Dollars ($75,000,000) (it being understood that
once such stored materials are incorporated into the Required Improvements, the cost thereof shall not be applied to the limit described
in this Section 2.23(d)) and (ii) the amount covered by Mortgage Borrower’s insurance. For avoidance of doubt,
the foregoing limitation does not override the individual limits in Sections 2.23(a), (b) or (c), which must
still be satisfied.
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2.24 Budget
Reallocations; Cost Savings; Contingency.
(a) General.
Borrower may only cause or permit Mortgage Borrower to modify the Budget in accordance with each of clause (b) of this Section 2.24
and Section 5.8.3 of this Agreement.
(b) Borrower
shall have the right, in its reasonable discretion, to cause or permit Mortgage Borrower to revise the Budget from time to time to reallocate
amounts allocated to any Line Item in the Budget from such line item to any other Line Item in the Budget, or to any cost incurred or
reasonably anticipated by Mortgage Borrower to be incurred in connection with the construction of the Required Improvements for which
there is no Line Item in the Budget, if, and to the extent, that:
(i) the
source of such reallocation is (A) contingency line item amounts or (B) Cost Savings demonstrated to the reasonable satisfaction
of Administrative Agent;
(ii) the
reallocation does not include reallocating amounts from any portion of the Line Items for interest, fees and other expenses payable to
Administrative Agent or Lenders hereunder or from any portion of the Line Items for Impositions, Other Charges, Insurance Premiums;
(iii) Administrative
Agent is advised in writing of the Line Item reallocation;
(iv) the
Budget is not, and may not reasonably be expected to be, increased as a result or consequence of any such reallocation (unless such increase
has otherwise been approved under Section 5.8.3);
(v) other
than with respect to reallocations of contingency line item amounts, no one reallocation exceeds $5,000,000.00 and aggregate reallocations
do not exceed $25,000,000, unless Borrower has received the prior written consent of Administrative Agent with respect thereto, not to
be unreasonably withheld, conditioned or delayed;
(vi) the
“Hard Costs contingency” (or equivalent) Line Item may only be utilized to cover overruns among Line Items for Hard Costs;
(vii) the
“Soft Costs contingency” (or equivalent) Line Item may only be utilized to cover overruns among Line Items for Soft Costs
or Hard Costs;
(viii) intentionally
omitted;
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(ix) such
reallocation is permitted under the other Loan Documents and the Mortgage Loan Documents;
(x) with
respect to reallocations of contingency Line Item amounts:
a. at all times until the Loan is indefeasibly
repaid in full: (1) the aggregate amount of the contingency Line Items shall remain
equal to or greater than five percent (5%) of the then-remaining Costs to be incurred through
Completion, (2) the “Hard Costs contingency” Line Item shall remain equal
to or greater than five percent (5%) of the then-remaining Hard Costs to be incurred through
Completion, (3) the “Soft Costs contingency” Line Item shall remain equal
to or greater than five percent (5%) of the then-remaining Soft Costs to be incurred through
Completion, and (4) the “general contingency” Line Item shall remain equal
to or greater than five percent (5%) of the then-remaining Hard Costs to be incurred through
Completion;
b. (1) no reallocation shall increase a
Budget Line Item by more than fifteen percent (15%) of the initial amount budgeted therefor;
and (2) the total amount of contingency used, expressed as a percentage of the total
contingency available in the Budget, shall not exceed the amount equal to one hundred percent
(100%) of the percentage of completion of the Required Improvements as of the date of such
reallocation.
(xi) Borrower
shall have provided to Administrative Agent Required Sub-Contracts representing not less than seventy percent (70%) of the Hard Costs
to be paid under the General Contractor Agreements for the Required Improvements including all subcontractors with a contract price in
excess of five percent (5%) of the Budget;
(xii) such
reallocation is permitted under the Mortgage Loan Documents; and
(xiii) Borrower
complies with the other terms and conditions of this Section 2.24.
(c) If
the conditions for reallocating Line Items in the Budget as set forth in this Section 2.24 are not met, Borrower may not
cause or permit Mortgage Borrower to reallocate Loan funds allocated to any Line Item in the Budget from such Line Item to any other
Line Item without first obtaining the consent of Administrative Agent, not to be unreasonably withheld, conditioned or delayed. Notwithstanding
anything contained in this Agreement or in any other Loan Document, prior to Completion, there may be no reallocation of costs pursuant
to clause (b) of this Section 2.24 between the Hard Costs and the Soft Costs other than a reallocation of Cost
Savings from Line Items for Soft Costs to Line Items for Hard Costs and contingency.
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(d) In
the event the conditions for reallocating Line Items for “contingency” in the Budget as set forth above are not met or satisfied,
Borrower may only permit Mortgage Borrower to reallocate amounts allocated to the Line Items for “Contingency” in the Budget
after obtaining the consent of Administrative Agent not to be unreasonably withheld, conditioned or delayed.
2.25 Balancing
and Deficiency.
(a) Borrower
shall furnish, or cause to be furnished, to Administrative Agent on or before thirty (30) days after the end of each calendar month a
construction progress statement (which statement may be included in a Draw Request or a separate report from Borrower to Administrative
Agent hereunder) containing the following items: (i) a reconciliation by Borrower of the progress of the construction of the Required
Improvements in accordance with the Construction Schedule and a projection of such progress through to Completion of the Required Improvements
and (ii) a reconciliation by Borrower of the actual Hard Costs and Soft Costs in accordance with the Budget showing the percentage
of completion of each Line Item in the Budget together with a projection of such Hard Costs and Soft Costs through to Completion of the
Required Improvements.
(b) Lenders
will not be required to make Advances pursuant to the provisions of this Agreement or any of the other Loan Documents for more than the
amount of any Line Item in the Budget, unless amounts from other Line Items have previously been reallocated in accordance with Section 2.24
hereof, or any of the actions set forth in Section 2.25(e) below are taken.
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(c) Deficiency.
(i) A
“Deficiency” means, at any given time (whether prior to the Initial Advance or at any time thereafter), and from time
to time, the amount by which (i) the sum of the following, without duplication, (A) the balance of the Loan yet to be advanced
by Lenders pursuant to this Agreement (in each case, determined after deducting the allocated amount of any Defaulting Lender’s
Commitment), in each case, only to the extent such unadvanced amounts are permitted pursuant to the Loan Documents to be applied to the
applicable Costs, plus (B) the amount of any Loan Advance Funds then held by Administrative Agent, plus (C) the
amount of Deficiency Collateral then held by Administrative Agent, plus (D) provided there is no Mortgage Loan Event of Default
under the Mortgage Loan Agreement, the balance of the Mortgage Loan yet to be advanced (determined after deducting the allocated amount
of any “Defaulting Lender’s Commitment” (as defined in the Mortgage Loan Agreement)), only to the extent such
advanced amounts are permitted pursuant to the Mortgage Loan Documents to be applied to the applicable Costs and Administrative Agent
reasonably determines that such amounts will be available, plus (E) amounts then held by Mortgage Administrative Agent in
Mortgage Reserve Accounts (if any), only to the extent the funds in such Mortgage Reserve Accounts are permitted to be applied to the
applicable Costs and Mortgage Administrative Agent’s access to such funds is not prevented by Legal Requirements, injunction or
other court order, or as a result of any action, inaction or omission by Borrower, Mortgage Borrower, Sole Member, any Borrower Party
and/or Guarantor), plus (F) prior to Substantial Completion, provided there is no Event of Default, the amount of
any Net Proceeds actually received by Administrative Agent or the Mortgage Administrative Agent to the extent such Net Proceeds were
paid on account of, or otherwise with respect to, Costs, and Mortgage Borrower is otherwise entitled to receive such Net Proceeds, plus
(G) Administrative Agent’s good faith estimate of Operating Income which will be available to be applied to the payment of
Costs during the applicable calculation period, is less than (ii) the Estimated Cost of Construction. The “Estimated Cost
of Construction” means a good faith estimate made from time to time by Administrative Agent (which may be in consultation with
Construction Consultant) of the actual remaining sum which will be required (x) to cause Completion and to pay all unpaid Costs
in connection therewith, in each case, through the estimated date of Completion and (y) to pay all carrying costs and operating
expenses of the Property through the Stated Maturity Date (including the payment of, without duplication, Impositions, Other Charges,
Taxes, Insurance Premiums, reimbursement obligations actually incurred by Mortgage Borrower under any Lease as a result of Mortgage
Borrower’s failure to timely deliver the applicable premises as and when required thereunder, all other operating expenses payable
by Mortgage Borrower or its Affiliates, all amounts payable by Mortgage Borrower or its Affiliates pursuant to Project Documents, interest
on the Loan and the Mortgage Loan, (unless (i) interest due in respect of the Loan or the Mortgage Loan is reserved for with Lender
or Mortgage Lender, as applicable, in an amount not less than the aggregate amount of interest that will be due and payable thereon and/or
(ii) Lender or any such Mortgage Lender is obligated to make advances of the Loan or Mortgage Loan, as applicable, directly to itself
for interest due and payable under the Loan or Mortgage Loan, as applicable) for the then-remaining term thereof)). The Estimated Cost
of Construction shall take into account (1) Trade Contracts (including, without limitation, the General Contractor Agreement) that
have been fully bought-out as of such time, and (2) with respect to Hard Costs arising under Line Items for which Trade Contracts
have not been fully bought-out as of such time, the Hard Costs that, in Administrative Agent’s sole good faith determination (following
reasonable good faith consultation with the Construction Consultant), would be payable under such Trade Contracts if such Trade Contracts
were fully bought-out as of such time, and (3) all costs and expenses of construction to be paid by Borrower under this Agreement
and Mortgage Borrower under the Mortgage Loan Agreement, with such allowances for reserves and contingencies as Administrative Agent
shall deem appropriate (but not greater than the required reserves and contingencies hereunder and under the Mortgage Loan Documents)
and shall take into account any permitted reallocations of Cost Savings and “contingency” in accordance with the terms of
this Agreement. Lenders further agree that the additional construction costs for construction of Building One Spec Suites and Building
One Mullion Replacement and Building Three beyond a cold shell to a warm shell and the storage costs for Off-Site Stored Materials described
in Section 2.23(b) will not be included by Lenders in the Estimated Costs of Construction under this Section 2.25(c)(i) so
long as Borrower pays for such additional costs using additional equity contributions within sixty (60) days after such additional costs
are incurred, subject to contest rights under Section 7.3 of the Loan Agreement.
(ii) Notwithstanding
anything to the contrary, if and to the extent that a Deficiency exists solely as a result of a Defaulting Lender failing to fund any
portion of its Commitment for Advances as and when required pursuant to the terms of this Agreement, then, notwithstanding anything to
the contrary in this Section 2.25, a Deficiency shall be deemed not to exist solely as a result of such failure during the
Deficiency Waiver Period so long as the Deficiency Waiver Conditions are satisfied. If, upon the expiration of the Deficiency Waiver
Period, the Defaulting Lender has not cured such default or been replaced in accordance with the terms of Section 15.10(e)(ii),
then a Deficiency shall be deemed to exist to the extent of the entire remaining unfunded Commitment of the Defaulting Lender.
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(d) In
the event that Administrative Agent shall determine that there exists any Deficiency, Administrative Agent shall deliver written notice
of such determination to Borrower (along with backup documentation thereof) and thereafter Lenders will not be obligated to make any
Advances under this Agreement or any of the other Loan Documents unless, within ten (10) Business Days after receipt of such notice
of determination, Borrower shall take any one (1) or more of the following actions:
(i) establish
in Administrative Agent’s sole good faith discretion that contrary to Administrative Agent’s prior determination, either
(A) no Deficiency then exists or (B) the Deficiency is in an amount that is smaller than Administrative Agent’s prior
determination, in which case under this clause (B), Borrower shall take any one (1) or more of the actions set forth in the
following provisions of this Section 2.25(d) in respect of such smaller amount;
(ii) cause
Mortgage Borrower to reallocate amounts from Cost Savings and/or any Line Item designated as ‘contingency’ pursuant to Section 2.24
(in conjunction with any other actions taken by Borrower under this Section 2.25(d)) hereof such that the aggregate sum of
the Deficiency is reduced to zero;
(iii) cause
Mortgage Borrower to deposit Cash (“Deficiency Collateral”) with Administrative Agent as provided in Section 2.25(e) in
an aggregate amount such that (in conjunction with any other actions taken by Borrower under this Section 2.25(d)) the aggregate
sum of the Deficiency is reduced to zero; or
(iv) make
(or cause Mortgage Borrower to make) one or more payments on account of Hard Costs and/or Soft Costs in the aggregate amount such that
(in conjunction with other actions taken under this Section 2.25(d)) the aggregate amount of the Deficiency is reduced to
zero.
(e) Deficiency
Collateral shall be held in a segregated account (the “Deficiency Account”) established by Administrative Agent in
its own name with an Eligible Institution of Administrative Agent’s choosing, into which Administrative Agent shall deposit all
Deficiency Collateral paid by Borrower pursuant to this Agreement. Deficiency Collateral shall be advanced to pay Costs prior to the
disbursement of any further Advances or Loan Advance Funds but, in each case, only after Administrative Agent shall have determined that
Borrower has satisfied the Minimum Equity Requirement. In the event that, as of any date following the deposit of any Deficiency Collateral,
Borrower establishes, to Administrative Agent’s reasonable satisfaction, that, due to a change in circumstances or the taking of
one or more actions permitted under Section 2.25(d) or otherwise in the Loan Documents (and, for the purposes of this
sentence, not taking into account such Deficiency Collateral in the determination of whether a Deficiency exists), a Deficiency no longer
exists, then, Administrative Agent shall disburse to Borrower, within thirty (30) days following the date on which Administrative Agent
makes such determination, provided that no Monetary Default, material non-monetary Default or Event of Default shall then exist,
the amount of such Deficiency Collateral that remains on deposit in the Deficiency Account that (i) has not been applied in accordance
with Section 2.25(e) and/or the other provisions of this Agreement and (ii) as to which Administrative Agent’s
access is not prevented by Legal Requirements, injunction or other court order or otherwise.
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2.26 Direct
Advances. Administrative Agent shall have the right (but no obligation), upon at least five (5) days’ prior written notice
to Borrower, to make any or all Advances requested by Borrower, directly or through the Title Company to any Work Provider to whom payment
is due, including, without limitation, Lender’s counsel, Servicer and Lender’s Construction Consultant to pay their respective
fees and expenses, and any other agent of Administrative Agent to pay its fees and expenses incurred in connection with the Required
Improvements which Mortgage Borrower is obligated hereunder to pay. Subject to the execution and delivery of an escrow letter which shall
be reasonably acceptable to Administrative Agent, such direct Advances may be made through the Title Company, by depositing in a bank
account to be designated by Administrative Agent which may be controlled by either General Contractor, a Trade Contractor or by such
other Person, in each case individually or jointly with Administrative Agent, as Administrative Agent may elect. Such direct Advances
also may be made by wire transfer or check payable to the Person to whom an Advance is to be made. The execution of this Agreement by
Borrower shall, and hereby does, constitute an irrevocable direction and authorization to so disburse the Advances as set forth above.
No further direction or authorization from Borrower shall be necessary or required for such direct Advances and all such Advances shall
satisfy pro tanto the obligations of Administrative Agent and Lenders hereunder and shall be secured by the applicable Loan Documents
as fully as if made directly to Borrower, regardless of the disposition thereof by any Work Provider.
2.27 Intentionally
Omitted.
2.28 Partial
Advances. If any or all conditions precedent to making an Advance have not been satisfied on the date requested for such Advance,
Administrative Agent and Lenders may, at their option, waive so many of such conditions precedent as Administrative Agent and Lenders
may elect. Administrative Agent and Lenders may, however, without waiving any of its rights or remedies, disburse that portion, if any,
of the requested Advance for which all of the conditions precedent have been satisfied or waived.
2.29 Retainage.
The amount of Loan proceeds disbursed on account of any Advance or portion thereof allocable to any Hard Costs shall be reduced by the
Retainage, if any, applicable to such Hard Costs. The portion of any Retainage that relates to work or materials supplied by any Trade
Contractor in connection with the Required Improvements will, upon request, be disbursed to Borrower subject to satisfaction (or waiver
by Administrative Agent in its sole discretion) of the following conditions:
(a) No
Monetary Default, material non-monetary Default or Event of Default has occurred and is continuing and all other conditions to a disbursement
of Loan proceeds under this Agreement are then satisfied;
(b) after
fifty percent (50%) of the work required under the applicable Trade Contract has been completed in compliance with such Trade Contract
and the Plans and Specifications, as certified by the applicable Architect of Record and confirmed by the Construction Consultant, subject
to Legal Requirements. Mortgage Borrower shall not be obligated to withhold any additional Retainage with respect to the remaining fifty
percent (50%) of such work, but shall retain the initial Retainage until Completion of such work including any applicable Punchlist Items
(it being acknowledged and agreed that at no time until final completion of the work under the applicable Trade Contract shall the Retainage
with respect thereto, in each case, be less than five percent (5%));
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(c) after
all work has been completed under the applicable Trade Contract (including all applicable Punchlist Items) in compliance in all material
respects with such Trade Contract and in substantial conformity with the Plans and Specifications, as certified by the applicable Architect
of Record and confirmed by the Construction Consultant, the remaining Retainage held with respect thereto shall be released provided
that (i) such contractor will be paid in full for its work upon the release of the Retainage, (ii) such contractor executes
and delivers a final lien waiver in substantially the form of Exhibit H-3 evidencing that such contractor has been paid in
full for all work performed and/or materials supplied and the “Balance Due-Final Payment” is $0, and (iii) the
applicable Architect of Record shall have approved the work completed by such Trade Contractor, as certified in writing by such Architect
of Record to Administrative Agent; and
(d) such
Retainage is actually payable pursuant to the applicable Trade Contract.
2.30 Conditions
Precedent to Advances. Lenders shall not be obligated to make the Initial Advance or any Advance subsequent to the Initial Advance
(each such subsequent Advance, a “Subsequent Advance”), unless the following conditions are satisfied to the level
of discretion as set forth in the applicable clauses below (or, if no such level of discretion is prescribed, in Administrative Agent’s
sole but good faith discretion), except to the extent Administrative Agent shall elect (which election may be made without written or
express notice of such election) to waive any such conditions in its sole and absolute discretion, provided, however, that
the following items are not required to be final as of the date of the Initial Advance so long as Borrower is diligently working to revise
such items to reflect the scope of the Required Improvements and such items are finalized to Administrative Agent’s reasonable
satisfaction by the first Subsequent Advance: Section 2.30(d), (g), (k), (m), (n), (o),
(p), (t), (u), (w), and (x):
(a) Minimum
Equity Requirement. Administrative Agent shall have received evidence reasonably satisfactory to Administrative Agent that the Minimum
Equity Requirement continues to be satisfied.
(b) Representations
and Warranties. On the date of such Advance, the representations and warranties made by (i) Borrower in this Agreement and in
any other Loan Documents, (ii) Sole Member in the Pledge Agreement (Sole Member) or in any other Loan Documents; (iii) Mortgage
Borrower in any Loan Documents to which it is a party; and (iv) Guarantor in the Guarantees, the Environmental Indemnity and in
any other Loan Documents to which it is a party shall be true and correct in all material respects (except to the extent that such representation
or warranty contains a materiality or similar qualifier, in which event, such representation or warranty that is so qualified shall be
true and correct) on and as of the date of such Advance with the same effect as if made on and as of such date, except (x) to the
extent such representations and warranties are made expressly with respect to a specific date, and (y) for any changes in facts
or circumstances occurring since the Closing Date that do not (i) constitute a Default or Event of Default or were not caused by
the occurrence of a Default or Event of Default or (ii) result in a Material Adverse Effect (the “Representation Remaking
Qualifications”).
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(c) No
Default No Material Adverse Effect (Advance). On the date of such Advance no Monetary Default, material non-monetary Default or Event
of Default hereunder, or Material Adverse Effect (Advance) shall have occurred and be continuing.
(d) Trade
Contractor Buyout. Mortgage Borrower shall have obtained signed and effective Trade Contracts (excluding the General Contractor Agreement)
representing not less than seventy percent (70%) of the Hard Costs to be paid under the General Contractor Agreements with respect to
the Conversion Component and Construction Component.
(e) Pledge
Agreements. The Pledge Agreement (Sole Member) shall constitute a valid and enforceable lien on the equity interests in the Sole
Member, in favor of Secured Party, free and clear of all liens except for Permitted Encumbrances. The Pledge Agreement (Mortgage Borrower)
shall constitute a valid and enforceable lien on the equity interests in the Mortgage Borrower, in favor of Secured Party, free and clear
of all liens except for Permitted Encumbrances.
(f) Milestones.
On the date of such Advance, no event shall have occurred that would reasonably be expected to result in Mortgage Borrower being unable
to achieve any Major Milestone within the time period applicable to such Major Milestone, as determined by Administrative Agent in its
reasonable discretion.
(g) Consents.
Each Material Design Professional which is an Architect or Engineer and the General Contractor and each Major Trade Contractor (other
than the General Contractor), as applicable, shall have delivered an Architect Consent, the Consent of General Contractor Agreement,
and Engineer Consent, or a Major Trade Contractor Consent, as applicable.
(h) Notices.
Prior to the Initial Advance, all notices required by any Governmental Authority or by any applicable Legal Requirements or any Construction
Agreement to be filed prior to commencement of the construction of the Required Improvements shall have been filed.
(i) Draw
Request. Administrative Agent shall have received a complete executed Draw Request for such Advance in accordance with the requirements
of Section 2.22, together with all required attachments and deliveries relating thereto.
(j) Standard
Form of Trade Contracts. With respect to the Initial Advance, Administrative Agent shall have received copies of each standard
form of Trade Contract to be used by the General Contractor, which standard form shall be approved by Administrative Agent in its reasonable
discretion, and with respect to each Subsequent Advance (to the extent not previously delivered to Administrative Agent), copies of each
new or modified standard form of Trade Contract to be used by the General Contractor since the date of the preceding Draw Request, which
standard form shall be approved by Administrative Agent in its reasonable discretion.
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(k) Construction
Consultant Certificate. Administrative Agent shall have received accompanied with each Draw Request relating to Hard Costs, a certificate
or report of Construction Consultant based upon a site observation of the Property made by Construction Consultant not more than twenty
(20) days prior to the date of such Advance, in which Construction Consultant shall in substance (and, in each case, in its reasonable
opinion) (i) verify that the portion of the Required Improvements completed as of the date of such site observation have been completed
substantially in accordance with all Legal Requirements and the Plans and Specifications; and (ii) state its estimate of (1) the
percentages of the construction of the Required Improvements completed as of the date of such site observation on the basis of work in
place as part of the Required Improvements and the Budget, (2) the Hard Costs actually incurred for work in place as part of the
Required Improvements as of the date of such site observation, (3) the sum necessary to complete construction of the Required Improvements
in accordance with the Plans and Specifications, (4) that Component Substantial Completion of the Conversion Component can be achieved
on or before the Outside Conversion Component Substantial Completion Date (in each case, taking into account Construction Consultant’s
determination of actual or potential accelerated progress that may be achieved by Borrower thereafter), and (5) that in its opinion
there exists no Deficiency (or, if there exists any Deficiency, Deficiency Collateral has been deposited or provided, or other assurances
given as per Section 2.25, in an amount equal to such Deficiency as required pursuant to Section 2.25).
(l) Construction.
All Required Improvements (or completed phases thereof) shall have been constructed in compliance, in all material respects, with all
Legal Requirements and substantially in accordance with any applicable Plans and Specifications.
(m) Construction
Agreements. Administrative Agent shall have received a list of all Construction Agreements in effect on the date of the applicable
Draw Request, and (to the extent not previously delivered to Administrative Agent) copies of any new or modified Construction Agreements
entered into in accordance with the terms hereof (which may be delivered and made available via the Data Room); provided that,
with respect to such new or modified Construction Agreements entered into by General Contractor, such copies shall only be required to
the extent that Borrower is entitled to receive such copies pursuant to the General Contractor Agreement.
(n) Payment
and Performance Bonds; Sub-Guard Insurance. Borrower shall cause Mortgage Borrower, at Administrative Agent’s election, either
(i) payment and performance Bonds, in form and substance reasonably satisfactory to Administrative Agent and issued by sureties
reasonably satisfactory to Administrative Agent to be maintained with respect to the obligations of each Trade Contractor; and/or (ii) a
sub-guard insurance policy in form and substance reasonably acceptable to Administrative Agent to be maintained with respect to the obligations
of each Trade Contractor. The Bonds shall be in an amount not less than the full contract price for each such Trade Contract required
to be bonded pursuant to this Section 2.30(n). Notwithstanding the foregoing, Borrower shall not be obligated to satisfy
the terms of this Section 2.30(n) for Trade Contractors performing work at the Project solely with respect to the Building
One Component.
(o) Plans
and Specifications. Administrative Agent shall have received and approved in accordance with Section 5.8.6 hereto any
additions, amendments, supplements or other modifications to any applicable Plans and Specifications to the extent that approval thereof
is required hereunder. Administrative Agent shall have received a list identifying the Plans and Specifications and any and all amendments
made thereto.
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(p) Budget.
Administrative Agent shall have received and, to the extent required by Section 5.8.3, approved any amendments, supplements
or other modifications to the Budget, which Budget shall be certified by an Officer’s Certificate.
(q) Construction
Permits. Administrative Agent shall have received (i) a list of all Construction Permits then in effect and required under Legal
Requirements for the then applicable stage of construction of the Project (provided that any Construction Permit remaining to
be obtained is administrative in nature and not discretionary) and (ii) evidence reasonably satisfactory to Administrative Agent
that all Construction Permits, to the extent then required, have been obtained.
(r) Real
Estate Taxes. Subject to Borrower’s right to contest the same in accordance with the express terms of this Agreement, Administrative
Agent shall have received evidence reasonably satisfactory to Administrative Agent that Mortgage Borrower has paid all real property
taxes on, and assessments of, the Property which would be delinquent if not paid, and, if delinquent, all penalties and interest thereon.
(s) Transaction
Costs; Payment of Fees. Borrower shall have paid or reimbursed (or will pay or reimburse simultaneously with such Advance) Administrative
Agent for all title insurance premiums, mortgage recording taxes and fees, recording and filing fees, costs of environmental reports,
appraisals and other reports, the fees and costs of Administrative Agent’s counsel, then-payable fees and expenses of the Construction
Consultant, and all other reasonable out-of-pocket costs and expenses of Administrative Agent relating to the Loan.
(t) Required
Sub-Contracts. With respect to each Advance (to the extent not previously delivered to Administrative Agent), each new or modified
Required Sub-Contract (which may be delivered and made available via the Data Room), in each case together with any amendments, modifications
or supplements thereto executed since the date of the preceding Draw Request.
(u) General
Contractor Agreement. Mortgage Borrower shall have entered into one or more effective General Contractor Agreements with General
Contractors for 100% of the Required Improvements, which agreements shall be in form and substance acceptable to Administrative Agent
and include a guaranteed maximum price reasonably acceptable to Administrative Agent and a certificate undertaking to continue to perform
on Administrative Agent’s behalf provided that General Contractor is paid for ongoing work.
(v) Proceedings.
There shall be no governmental actions, proceedings or investigations pending or threatened in writing (evidencing an intent to sue or
to commence such a proceeding or investigation) against or filed by Borrower or Mortgage Borrower which is reasonably likely to have
a Material Adverse Effect.
(w) Anticipated
Cost Report and Project Cost Report. Administrative Agent shall have received (i) an anticipated cost report in the form attached
hereto as Exhibit G-2, which indicates the Costs anticipated to complete the construction of the Required Improvements, after
giving effect to Costs incurred during the previous month and projected Costs and (ii) a project cost report in the form attached
hereto as Exhibit G-3, each of which shall be reasonably acceptable to Administrative Agent.
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(x) Construction
Schedule. Administrative Agent shall have received a copy of the Construction Schedule, and if and to the extent the Construction
Schedule is updated and issued following the Initial Advance, Administrative Agent shall have received a copy of the updated Construction
Schedule.
(y) Title
Continuation. Administrative Agent shall have received a Title Continuation with respect to the Mortgage, dated the date of the requested
Advance.
(z) Insurance.
To the extent not previously delivered, Administrative Agent shall have received certified policies, valid certificates of insurance
or other acceptable evidence with respect to the policies of insurance required hereunder reasonably satisfactory to Administrative Agent
and evidence of the payment of all Insurance Premiums currently due and payable for the existing policy period.
(aa) Intentionally
Omitted.
(bb) Intentionally
Omitted.
(cc) Intentionally
Omitted.
(dd) Intentionally
Omitted.
(ee) Intentionally
Omitted.
(ff) No
Liens. The Property shall be free from all Liens (other than Permitted Encumbrances).
(gg) Miscellaneous.
Administrative Agent shall have received all reasonable and customary documents, reports, certificates, affidavits and other information,
in form and substance reasonably satisfactory to Administrative Agent or Construction Consultant, as each may reasonably require to evidence
compliance by Borrower with all of the provisions of this Section 2.30.
2.31 Conditions
Precedent to Final Advance under a General Contractor Agreement. Lenders shall not be obligated to make an Advance with respect to
the final payment to be made to any General Contractor under a General Contractor Agreement, unless in addition to the conditions set
forth in Section 2.30, the following conditions are satisfied to the level of discretion as set forth in the applicable clauses
below (or, if no such level of discretion is prescribed, in Administrative Agent’s sole and absolute but good faith), except to
the extent Administrative Agent shall elect (which election may be made without written or express notice of such election) to waive
any such conditions in its sole and absolute discretion:
(a) Approval
by Construction Consultant. Administrative Agent and Construction Consultant shall have received evidence reasonably acceptable to
them, or otherwise be reasonably satisfied, that Component Substantial Completion of all Components included in such applicable General
Contractor Agreement has occurred.
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(b) Certificates
of Architect. With respect to the Conversion Component or the Construction Component, Administrative Agent shall have received a
certificate of completion with respect to the work under the General Contractor Agreement certified by the Architect and reasonably confirmed
by Construction Consultant which confirms that Component Substantial Completion or Completion, as the case may be, has occurred substantially
in accordance with the Plans and Specifications in all material respects and in accordance with all Legal Requirements in all material
respects, including all Punchlist items with respect thereto.
(c) Final
Lien Waivers and Release/Evidence of Payment. Administrative Agent shall have received from Borrower (i) duly executed final
lien waivers substantially in the form and substance of Exhibit H-3 from General Contractor and any other Trade Contractors
for work performed and goods, labor and materials supplied for which payment thereof is requested from such Advance (which lien waivers
shall be conditioned only upon receipt of amounts to be included in the final disbursement and amounts for any Punchlist Items and Retainage
that, as of the date of Component Substantial Completion or Substantial Completion, as the case may be, are actually being withheld)
or the statutory period(s) within which valid mechanic’s liens, materialmen’s liens, lien affidavits and/or stop notices
may be recorded and/or served shall have expired, excluding any such parties whose lien rights or liens have been bonded over in a manner
(and with a bond provider) reasonably satisfactory to Administrative Agent, and (ii) evidence of payment from each Trade Contractor
with whom the General Contractor has a direct agreement indicating that such Trade Contractor has been paid in full for all work performed
and for goods, labor and materials supplied for which payment was requested in the immediately preceding Advance, in each case, in form
and substance reasonably acceptable to Administrative Agent.
(d) Certificate
of Substantial Completion. With respect to the Conversion Component or the Construction Component, Administrative Agent shall have
received completed AIA Forms G704 (Certificate of Substantial Completion) from Architect as to all Components included in such applicable
General Contractor Agreement (and not merely a portion of any such Component).
(e) Legal
Requirements. With respect to the Conversion Component or the Construction Component, Borrower shall have furnished to Administrative
Agent evidence reasonably satisfactory to Administrative Agent that the Improvements are in substantial compliance with the Plans and
Specifications and in compliance with all applicable Legal Requirements, in all material respects, including, but not limited to, zoning
regulations and building restrictions, environmental requirements, occupational safety and health requirements and similar Legal Requirements.
(f) Certificates
of Occupancy; Permits. If the C/O Requirement Trigger has occurred with respect to a Building comprising a portion of the Conversion
Component or the Construction Component, as applicable, Administrative Agent shall have received either a permanent certificate of occupancy
or a temporary certificate of occupancy (or, if not applicable, the equivalent of a certificate of occupancy that is customarily issued
by the applicable Governmental Authorities or the written acceptance by the City of Cambridge of Required Improvements that constitute
public amenities) for each Building in such Component covered by the applicable General Contractor Agreement as to which the C/O Requirement
Trigger has occurred, together with and all Operating Permits and other permits, licenses and approvals from all applicable Governmental
Authorities required for the use and operation of each Building in such Component as to which the C/O Requirement Trigger has occurred.
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(g) Violations.
Borrower shall have furnished to Administrative Agent a certificate from Borrower, certifying that (i) no written notices from any
Governmental Authority of any claimed material violations of applicable Legal Requirements arising from the construction of the Improvements
or operation of the Property were served upon Borrower, Mortgage Borrower, or, to Borrower’s or Mortgage Borrower’s actual
knowledge, the General Contractor or any subcontractor or their respective agents or representatives, except those that have been cured
in all material respects (unless Borrower or Mortgage Borrower is contesting such violation in good faith in accordance with Section 7.3)
and (ii) Borrower is not aware of any circumstances which could give rise to the issuance of any such notice of claimed violation.
(h) FF&E.
With respect to the Conversion Component or the Construction Component, all furnishings, fixtures and equipment, all inventory and all
other property contemplated under the Budget and the Plans and Specifications to be incorporated into or installed on the portion of
the Property included within the Components covered by the applicable General Contractor Agreement, subject to completion of Punchlist
Items, shall have been incorporated or installed free and clear of all liens and security interests, other than the liens of Approved
Equipment Financings and other Permitted Encumbrances.
(i) UCC.
Borrower shall have furnished to Administrative Agent current searches of all UCC financing statements filed in the applicable jurisdictions
against Borrower, as debtor, showing that no UCC financing statements are filed or recorded against Borrower in which the collateral
is described as personal property or fixtures located on the Property or used in connection with the Property, except UCC financing statements
filed in connection with the Loan and other Permitted Encumbrances.
2.32 Conditions
Precedent to Final Advance. Lenders shall not be obligated to make the final Advance, unless in addition to the conditions set forth
in Section 2.30 and Section 2.31, the following conditions are satisfied to the level of discretion as set forth
in the applicable clauses below (or, if no such level of discretion is prescribed, in Administrative Agent’s sole and but good
faith discretion), except to the extent Administrative Agent shall elect (which election may be made without written or express notice
of such election) to waive any such conditions in its sole and absolute discretion:
(a) Evidence
of Payment. Administrative Agent shall have received from Borrower (i) evidence of payment (which shall be reasonably acceptable
to Administrative Agent) from each Trade Contractor indicating that such Trade Contractor has been paid in full for all work performed
and for goods, labor and materials supplied for which payment was requested in the immediately preceding Advance, and (ii) with
respect to the Conversion Component or the Construction Component, to the extent not previously delivered pursuant to Section 2.31(b),
completed AIA Forms G704 (Certificate of Substantial Completion) from Architect as to the Project (and not merely a portion of the Project)
indicating no items remaining to be completed or corrected.
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(b) Certificates
of Architect. With respect to the Conversion Component or the Construction Component, to the extent not previously delivered to Administrative
Agent pursuant to Section 2.31, Administrative Agent shall have received a certificate of Completion for the Project certified
by Architect and confirmed by Construction Consultant which confirms that Completion has occurred (i) substantially in accordance
with the Plans and Specifications and (ii) in accordance with all Legal Requirements, in all material respects, including all Punchlist
Items with respect thereto.
(c) FF&E.
With respect to the Conversion Component or the Construction Component, all furnishings, fixtures and equipment, all inventory and all
other property contemplated under the Budget and the Plans and Specifications to be incorporated into or installed on the portion of
the Property included within the Components covered by the applicable General Contractor Agreement shall have been incorporated or installed
free and clear of all liens and security interests, other than the liens of Approved Equipment Financings and other Permitted Encumbrances.
2.33 Interest
Rate Cap Agreement.
(a) On
or before the Closing Date, Borrower shall enter into an Interest Rate Cap Agreement which (i) shall at all times be in form and
substance reasonably acceptable to Administrative Agent, (ii) shall at all times be with an Acceptable Counterparty, (iii) shall
direct such Acceptable Counterparty to deposit directly into an account selected by Administrative Agent any amounts due Borrower under
such Interest Rate Cap Agreement so long as any portion of the Debt exists, provided that the Debt shall be deemed to exist even
if the Property is transferred by judicial or non-judicial foreclosure or deed-in-lieu thereof and/or the Collateral is transferred by
judicial or non-judicial foreclosure or assignment-in-lieu thereof, (iv) shall have a notional amount equal to the amounts set forth
on Schedule X hereto for a period equal to the initial term of the Loan; provided, that (A) Secured Party shall not
be required to make any Advance that would cause the Principal Amount of the Loan [plus the outstanding principal balance of the Mortgage
Loan] to exceed the then-notional amount of the Interest Rate Cap Agreement and (B) if at any time during the initial term of the
Loan the Principal Amount [plus the outstanding principal balance of the Mortgage Loan] exceeds the notional amount of the Interest Rate
Cap Agreement, Borrower shall, within five (5) Business Days, deliver to Administrative Agent a Replacement Interest Rate Cap Agreement
with a notional amount equal to the difference between (x) the Principal Amount of the Loan (including any then requested Advance)
[and the outstanding principal balance of the Mortgage Loan] and (y) the application notional amount of the Interest Rate Cap Agreement
then in place, (v) shall be governed by the laws of the State of New York and (vi) shall at all times have a strike price that
is no greater than the Strike Price. Borrower shall collaterally assign to Secured Party, pursuant to the Assignment of Interest Rate
Cap Agreement, all of its right, title and interest to receive any and all payments under the Interest Rate Cap Agreement, and shall
deliver to Administrative Agent an executed counterpart of such Interest Rate Cap Agreement (which shall, by its terms, authorize the
assignment to Administrative Agent and require that payments be deposited directly into an account selected by Administrative Agent)
and shall notify the Acceptable Counterparty of such assignment.
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(b) Borrower
shall comply in all material respects with all of its obligations under the terms and provisions of the Interest Rate Cap Agreement.
All amounts paid by the Acceptable Counterparty under the Interest Rate Cap Agreement to Borrower or Administrative Agent shall be deposited
immediately into an account as specified by Administrative Agent. Borrower shall take all actions reasonably requested by Administrative
Agent to enforce Secured Party’s rights under the Interest Rate Cap Agreement in the event of a default by the Acceptable Counterparty
and shall not waive, amend or otherwise modify any of its rights thereunder.
(c) In
the event of any downgrade, withdrawal or qualification of the rating of the Acceptable Counterparty by any Rating Agency (or similar)
from the minimum counterparty ratings required pursuant to the definition of “Acceptable Counterparty” herein, Borrower
shall replace the Interest Rate Cap Agreement with a Replacement Interest Rate Cap Agreement, not later than fifteen (15) Business Days
following receipt of notice from Administrative Agent of such downgrade, withdrawal or qualification.
(d) In
the event that Borrower fails to purchase and deliver to Administrative Agent the Interest Rate Cap Agreement or fails to maintain the
Interest Rate Cap Agreement in accordance with the terms and provisions of this Agreement, Administrative Agent may purchase the Interest
Rate Cap Agreement (or a Replacement Interest Rate Cap Agreement, as applicable), and the out-of-pocket cost incurred by Administrative
Agent in purchasing such Interest Rate Cap Agreement shall be paid by Borrower to Administrative Agent with interest thereon at the Default
Rate from the date such cost was incurred by Administrative Agent until such cost is reimbursed by Borrower to Administrative Agent.
(e) In
connection with the Interest Rate Cap Agreement, Borrower shall obtain and deliver to Administrative Agent (x) a resolution/consent,
as applicable, of the Acceptable Counterparty authorizing the delivery of the Interest Rate Cap Agreement reasonably acceptable to Administrative
Agent, (y) with respect to Borrower, legal opinions reasonably acceptable in form and substance to Administrative Agent, certificates,
consents and/or resolutions, customary searches and acknowledgments and other information and documentation as may be reasonably requested
by Administrative Agent and (z) with respect to the Acceptable Counterparty, an opinion from counsel (which counsel may be in-house
counsel for the Acceptable Counterparty) for the Acceptable Counterparty (upon which Administrative Agent, the Lenders and their respective
successors and assigns may rely) which opinion with respect to the Acceptable Counterparty shall provide, in relevant part, that:
(i) the
Acceptable Counterparty is duly organized, validly existing, and in good standing under the laws of its jurisdiction of incorporation
or formation and has the organizational power and authority to execute and deliver, and to perform its obligations under, the Interest
Rate Cap Agreement;
(ii) the
execution and delivery of the Interest Rate Cap Agreement by the Acceptable Counterparty, and any other agreement which the Acceptable
Counterparty has executed and delivered pursuant thereto, and the performance of its obligations thereunder have been and remain duly
authorized by all necessary action and do not contravene any provision of its certificate of incorporation or by-laws (or equivalent
organizational documents) or any law, regulation or contractual restriction binding on or affecting it or its property;
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(iii) all
consents, authorizations and approvals required for the execution and delivery by the Acceptable Counterparty of the Interest Rate Cap
Agreement, and any other agreement which the Acceptable Counterparty has executed and delivered pursuant thereto, and the performance
of its obligations thereunder have been obtained and remain in full force and effect, all conditions thereof have been duly complied
with, and no other action by, and no notice to or filing with any governmental authority or regulatory body is required for such execution,
delivery or performance; and
(iv) the
Interest Rate Cap Agreement, and any other agreement which the Acceptable Counterparty has executed and delivered pursuant thereto, has
been duly executed and delivered by the Acceptable Counterparty and constitutes the legal, valid and binding obligation of the Acceptable
Counterparty, enforceable against the Acceptable Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency
and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless
of whether enforcement is sought in a proceeding in equity or at law).
(f) In
the event the Loan is converted to an Alternate Rate Loan or to a Prime Rate Loan, as applicable, in accordance with the terms of Section 2.6
above:
(i) within
fifteen (15) Business Days of such conversion, either (A Borrower shall deliver to Administrative Agent a (1) a Substitute Interest
Rate Cap Agreement and (2) an assignment of interest rate cap agreement with respect to such Substitute Interest Rate Cap Agreement
in form and substance substantially similar to the Assignment of Interest Rate Cap Agreement delivered on the Closing Date, together
with legal opinions of counsel to the counterparty and Borrower as reasonably required by Administrative Agent and Lender, or (B) if
Lender determines (which determination will be based on market customs and/or proposals of industry associations) that an Substitute
Interest Rate Cap Agreement is not an appropriate instrument to properly hedge the variable rate risk attributable to the Alternate Rate
Index or the Prime Rate Index, as applicable, or if a Substitute Interest Rate Cap Agreement is not generally commercially available
from an Acceptable Counterparty, Borrower shall purchase such other hedging product as reasonably determined by Administrative Agent;
(ii) immediately
and automatically upon such election, the references to “Interest Rate Cap Agreement” and “Replacement Interest
Rate Cap Agreement” and related provisions in this Agreement (including, without limitation, requirements to purchase the same
pursuant to the provisions set forth in this Section 2.33(f) and the other Loan Documents shall be deemed modified by
terms specified by Administrative Agent to account for the Applicable Rate and the Substitute Interest Rate Cap Agreement or the alternative
hedging product reasonably determined by Administrative Agent pursuant to the preceding clause (i), as applicable; and
(iii) in
the event the Loan was converted to an Alternate Rate Loan or a Prime Rate Loan, but then is converted back to SOFR Rate Loan, then the
requirements of Section 2.33 with respect to an Interest Rate Cap Agreement shall again apply.
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2.34 Imprest
Account.
(a) From
time to time Borrower may request an Advance in an amount determined by Borrower in the aggregate amount not to exceed $1,000,000 (the
“Approved Imprest Amount”) in accordance with the terms of this Section 2.34, which amount shall be disbursed
by Administrative Agent directly into an account established and maintained by Administrative Agent (or its Servicer) (the “Imprest
Account”).
(b) All
funds held in the Imprest Account from time to time shall be referred to herein as the “Imprest Funds”. Provided
that no Event of Default has occurred and is continuing, and subject to Borrower’s satisfaction of the Advance Conditions (other
than Sections 2.30(y) and 2.30(cc)), Borrower shall be permitted from time to time, to request disbursements of the
Imprest Funds for application solely towards the payment of Hard Costs. Borrower shall provide an accounting to Administrative Agent
for any disbursement from the Imprest Account in connection with, and as a condition precedent to, the immediately succeeding Advance
to be made pursuant to the terms of this Agreement, as if such disbursement was a portion of such immediately succeeding Advance.
(c) Subject
to Borrower’s satisfaction of the Advance Conditions (other than Sections 2.30(y) and 2.30(cc)), and following
Administrative Agent’s acceptance of Borrower’s accounting with respect to any prior disbursement of Imprest Funds in accordance
with the terms of this Section 2.34, Borrower shall be permitted to request, via Draw Request, the replenishment of the Imprest
Account by an aggregate amount not to exceed the Approved Imprest Amount. Upon the application of the Imprest Funds to any Line Item
for Hard Costs, the amount of any Loan proceeds that Borrower shall be permitted to request hereunder shall be reduced on a dollar for
dollar basis by the amount of Imprest Funds applied to such Line Item.
III. CASH
MANAGEMENT.
3.1 Cash
Management under the Mortgage Loan.
3.1.1 Mortgage
Reserve Accounts. Administrative Agent, Borrower and Mortgage Borrower acknowledge and agree that, so long as the cash management
provisions of the Mortgage Loan are substantially similar to the provisions of this Article III, Borrower and Mortgage Borrower
shall be relieved from their obligations under this Article III. Borrower shall cause Mortgage Borrower to maintain each
of the Mortgage Reserve Accounts required pursuant to the terms of the Mortgage Loan Agreement, and in each case, to perform and comply
with all the terms and provisions relating to the foregoing. Borrower shall not permit Mortgage Borrower to further pledge, assign or
grant any security interest in the Mortgage Reserve Accounts or permit any Lien or other encumbrance to attach thereto, or any levy to
be made thereon, or any financing statements to be filed in connection therewith, other than those in favor of Mortgage Administrative
Agent and Permitted Encumbrances and/or, without Mortgage Administrative Agent’s prior consent, amend, restate, replace and/or
otherwise modify the same. If requested by Administrative Agent, Borrower will promptly provide evidence reasonably acceptable to Administrative
Agent of its compliance with the foregoing.
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3.1.2 Establishment
of Accounts. Notwithstanding anything to the contrary contained in this Agreement, if at any time and for any reason the accounts
established pursuant to the Mortgage Loan Agreement are no longer being maintained and/or the Mortgage Reserve Accounts cease to exist
or are reduced, waived or modified in any material respect (in each case, including, without limitation, due to any waiver, amendment
or refinance) (such accounts, the “Waived Reserve Accounts,” and such provisions, the “Waived Reserve Accounts
Provisions”), to the extent permitted to do so pursuant to the Mortgage Loan Documents, Borrower shall promptly (i) notify
Administrative Agent of the same and thereafter Borrower shall be required to comply with the provisions of this Article III,
and (ii) remit to Administrative Agent (and shall cause Mortgage Borrower to remit to Administrative Agent) any funds remaining
in the Waived Reserve Accounts that are available to Borrower or Mortgage Borrower. In the event that Mortgage Administrative Agent subsequently
reinstates all or any Waived Reserve Accounts, then Administrative Agent shall cooperate to transfer the Reserve Accounts established
pursuant to this Article III to Mortgage Administrative Agent, and Borrower shall no longer be required to deposit funds
into such Reserve Accounts until such time as any such Reserve Accounts are subsequently reinstated in accordance with the terms hereof.
3.2 Cash
Management.
3.2.1 Establishment
of Accounts.
(a) On
or prior to the Account Establishment Date, Borrower shall cause Mortgage Borrower to establish in the name of Mortgage Borrower (and,
for the avoidance of doubt, not in the name of any Tenant or any Manager) for the benefit of Administrative Agent, as secured party,
(i) a clearing account (the “Clearing Account”) with a financial institutional reasonably approved by Administrative
Agent (the “Clearing Account Bank”), and (ii) a cash management account (the “Cash Management Account”)
with a financial institution reasonably approved by Administrative Agent (the “Cash Management Bank”). The Clearing
Account and the Cash Management Account and each sub-account of any such account and the funds deposited therein shall serve as additional
security for the Loan. Borrower shall cause Mortgage Borrower to deliver (or cause Manager to deliver) a tenant direction letter (“Tenant
Direction Letter”) to all Tenants under Leases in place as of the Account Establishment Date within one (1) Business Day
after the Account Establishment Date and shall send a copy of each Tenant Direction Letter sent as provided above (together with evidence
that the same has been sent) to Administrative Agent. With respect to all Leases that are entered into with respect to the Property following
the Account Establishment Date, Borrower shall cause Mortgage Borrower deliver (or cause Manager to deliver) a Tenant Direction Letter
to all such tenants simultaneously with the execution of such Leases and shall promptly deliver to Administrative Agent evidence that
the same has been sent to the applicable Tenant. Without the consent of Administrative Agent, Borrower shall cause Mortgage Borrower
not (and shall not cause or permit any Person to) terminate, amend, revoke or modify any Tenant Direction Letter in any manner whatsoever,
or direct any tenant to pay any amount that is due and payable to Mortgage Borrower to any account other than as provided in the related
Tenant Direction Letter.
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(b) The
Clearing Account Agreement and the Cash Management Agreement shall govern the collection, holding and disbursement of Rents and any other
income from the Property during the term of the Loan. So long as a Cash Sweep Period has not occurred, all funds in the Clearing Account
(less the reasonable fees of Clearing Account Bank payable pursuant to the Clearing Account Agreement and any minimum balance required,
which minimum balance shall be approved by Administrative Agent (collectively, “Account Holdbacks”)) shall be disbursed
on a daily basis to an account designated by Mortgage Borrower (the “Mortgage Borrower Operating Account”), and at
any time that a Cash Sweep Period exists, Clearing Account Bank on a daily basis shall transfer all collected and available funds as
determined by Clearing Account Bank’s then current funds availability schedule received in the Clearing Account (less the Account
Holdbacks) to the Cash Management Account. Pursuant to the Clearing Account Agreement, Borrower shall cause Mortgage Borrower to irrevocably
instruct and authorize Clearing Account Bank to disregard any and all orders for withdrawal from the Clearing Account made by, or at
the direction of, Mortgage Borrower at any time that Administrative Agent has notified Clearing Account Bank that a Cash Sweep Period
exists, other than to transfer all amounts on deposit in the Clearing Account, on a daily basis, to the Cash Management Account.
(c) Borrower
agrees that, (i) prior to the payment in full of the Debt, the terms and conditions of the Clearing Account Agreement and the Cash
Management Agreement shall not be amended or modified without the prior written consent of Administrative Agent, and (ii) the Clearing
Account Agreement and Cash Management Agreement shall be in form and substance acceptable to Administrative Agent, it being acknowledged
that (i) in no event shall Administrative Agent have any obligation to approve any form of account control and/or Clearing Account
agreement that contains an indemnity by Administrative Agent or the Lenders in favor of the Clearing Account Bank thereunder and (ii) if,
and to the extent, permitted by the Cash Management Bank, the Cash Management Agreement shall provide for funds deposited in the Cash
Management Account to be invested in approved investments and for the incomes thereon to be added to the balance held in the Cash Management
Account.
(d) In
recognition of Administrative Agent’s security interest in the funds deposited into the Clearing Account and the Cash Management
Account, Borrower shall cause Mortgage Borrower to identify the Clearing Account and the Cash Management Account with the name of Administrative
Agent, as secured party. The Clearing Account shall be named as follows: “IQHQ-Alewife, LLC f/b/o NREF OP IV REIT Sub, LLC, a Delaware
limited liability company, as Administrative Agent, as secured party, Clearing Account”) and the Cash Management Account shall
be named as follows: “IQHQ-Alewife, LLC f/b/o NREF OP IV REIT Sub, LLC, a Delaware limited liability company, as Administrative
Agent, as secured party, Cash Management Account”).
(e) On
or prior to the Account Establishment Date, Borrower shall cause Mortgage Borrower to establish the following sub-accounts of the Cash
Management Account, which (i) may be ledger or book entry sub-accounts and need not be actual sub-accounts, (ii) shall each
be linked to the Cash Management Account, (iii) shall each be a “securities account” pursuant to Article 8 of the
UCC, and (iv) shall each be an Eligible Account to which certain funds shall be allocated and from which disbursements shall be
made pursuant to the terms of this Agreement:
(i) a
sub-account for Tax Reserve Funds, as more fully set forth in Section 16.1 with the designation of “Tax Reserve Account”
(the “Tax Reserve Account”);
(ii) a
sub-account for Insurance Reserve Funds, as more fully set forth in Section 16.3 with the designation “Insurance Reserve
Account” (the “Insurance Reserve Account”);
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(iii) a
sub-account for Debt Service Reserve Funds, as more fully set forth in Section 16.3 with the designation of “Debt Service
Reserve Account” (the “Debt Service Reserve Account”);
(iv) Intentionally
Omitted;
(v) a
sub-account for Operating Expense Reserve Funds, as more fully set forth in Section 16.5 with the designation of “Operating
Expense Reserve Account” (the “Operating Expense Reserve Account”); and
(vi) a
sub-account for Excess Cash Flow Funds, as more fully set forth in Section 16.7 with the designation of “Excess Cash
Flow Funds Account” (the “Excess Cash Flow Funds Account”).
(f) Except
as expressly set forth below, following the Account Establishment Date, at any time that a Cash Sweep Period is continuing, all funds
in the Cash Management Account shall be held in the Excess Cash Flow Funds Account as additional collateral for the Loan and applied
by Administrative Agent in accordance with Section 16.7; provided, that at any time that a Debt-Service Trigger Period
is continuing, on each Payment Date all funds deposited into the Cash Management Account shall be applied on such Payment Date in the
following order of priority:
(i) To
the Tax Reserve Account in an amount equal to the Tax Disbursement Amount;
(ii) Then,
to the Insurance Reserve Account in an amount equal to the Insurance Disbursement Amount;
(iii) Then,
to the Debt Service Reserve Account in an amount equal to the Debt Service Disbursement Amount;
(iv) Then,
to the Operating Expense Reserve Account in an amount equal to the Operating Expense Disbursement Amount;
(v) Intentionally
Omitted; and
(vi) Then,
all amounts remaining in the Cash Management Account after deposits for the items above, to the Excess Cash Flow Fund Account.
3.2.2 Pledge
of Account Collateral.
(a) To
secure the full and punctual payment and performance of the Obligations, by execution of a rider to this Agreement and by execution of
the Mortgage, Mortgage Borrower collaterally assigns, grants a security interest in and pledges to Administrative Agent, to the extent
not prohibited by applicable law, a first priority continuing security interest in and to the following property of Mortgage Borrower,
whether now owned or existing or hereafter acquired or arising and regardless of where located (all of the same, collectively, the “Account
Collateral”):
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(i) the
Collateral Accounts and all cash, checks, drafts, securities entitlements, certificates, instruments and other property, including, without
limitation, all deposits and/or wire transfers from time to time deposited or held in, credited to or made to Collateral Accounts;
(ii) all
interest, dividends, cash, instruments, securities entitlements and other property from time to time received, receivable or otherwise
payable in respect of, or in exchange for, any or all of the foregoing or purchased with funds from the Collateral Accounts; and
(iii) to
the extent not covered by clauses (i) or (ii) above, all proceeds (as defined under the UCC) of any or all of
the foregoing.
(b) In
addition to the rights and remedies herein set forth, Administrative Agent shall have all of the rights and remedies with respect to
the Account Collateral available to a secured party at law or in equity, including, without limitation, the rights of a secured party
under the UCC, as if such rights and remedies were fully set forth herein. This Agreement shall constitute a security agreement for purposes
of the Uniform Commercial Code and other applicable law.
3.2.3 Maintenance
of Collateral Accounts.
(a) Borrower
agrees that the Clearing Account shall be maintained (i) as a “deposit account” (as such term is defined in Section 9-102(a)(29)
of the UCC), (ii) in such a manner that Administrative Agent shall have control (within the meaning of Section 9-104(a)(2) of
the UCC) over the Clearing Account, and (iii) such that neither Borrower nor any person other than Administrative Agent shall have
any right of withdrawal from the Clearing Account and, except as provided herein, no Account Collateral shall be released to Borrower
or any person other than Administrative Agent from the Clearing Account. Without limiting Borrower’s obligations under the immediately
preceding sentence, Mortgage Borrower shall only establish and maintain the Clearing Account with a financial institution that has executed
an agreement substantially in the form of the Clearing Account Agreement or in such other form reasonably acceptable to Administrative
Agent.
(b) Borrower
agrees that each of the Cash Management Account, the Reserve Accounts and the sub-accounts of the Cash Management Account and the Reserve
Accounts shall be maintained (i) as a “securities account” (as such term is defined in Section 8-501(a) of
the UCC), (ii) in such a manner that Administrative Agent shall have control (within the meaning of Section 8-106(d)(2) of
the UCC) over the Cash Management Account, the Reserve Accounts and the sub-accounts, (iii) such that neither Borrower nor any Person
other than Administrative Agent shall have any right of withdrawal from the Cash Management Account, the Reserve Accounts or the sub-accounts
and, except as provided herein, no Account Collateral shall be released to Borrower from the Cash Management Account, the Reserve Accounts
or the sub-accounts, (iv) in such a manner that Cash Management Bank shall agree to treat all property credited to the Cash Management
Account, the Reserve Accounts or the sub-accounts as “financial assets”, and (v) such that all securities or other property
underlying any financial assets credited to the Cash Management Account, the Reserve Accounts or the sub-accounts shall be registered
in the name of Cash Management Bank, indorsed to Cash Management Bank or in blank or credited to another securities account maintained
in the name of Cash Management Bank and in no case will any financial asset credited to the Cash Management Account, the Reserve Accounts
or the sub-accounts be registered in the name of Borrower, payable to the order of Borrower or specially indorsed to Borrower except
to the extent the foregoing have been specially indorsed to Cash Management Bank or in blank.
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3.2.4 Eligible
Accounts. The Collateral Accounts shall be Eligible Accounts. The Collateral Accounts shall be subject to such applicable laws, and
such applicable regulations of the Board of Governors of the Federal Reserve System and of any other banking or Governmental Authority,
as may now or hereafter be in effect. Income and interest accruing on the Collateral Accounts or any investments held in such accounts
may be retained by Administrative Agent. Mortgage Borrower (or, if Mortgage Borrower is a “disregarded entity” for U.S. federal
income tax purposes, its regarded owner) shall be the beneficial owner of the Collateral Accounts for federal income tax purposes and
shall report all income on the Collateral Accounts.
3.2.5 Replacement
of Cash Management Bank. In the event that Cash Management Bank fails, in any material respect, to comply with the Cash Management
Agreement, beyond applicable notice and cure periods set forth therein, Administrative Agent shall have the right, at Borrower’s
sole cost and expense, to replace Cash Management Bank with any other financial institution reasonably satisfactory to Administrative
Agent, which financial institution will promptly execute and deliver to Administrative Agent a Cash Management Agreement (and Borrower
shall cooperate with Administrative Agent in connection with such transfer). Such replacement Cash Management Bank shall promptly execute
and deliver to Administrative Agent a Cash Management Agreement in a form acceptable to Administrative Agent and Borrower (and Borrower
shall cooperate with Administrative Agent in connection with such transfer).
3.2.6 Account
Collateral and Remedies.
(a) Upon
and during the continuance of an Event of Default, without additional notice from Administrative Agent to Borrower, Administrative Agent
may, in addition to and not in limitation of Administrative Agent’s other rights, make any and all withdrawals from, and transfers
between and among, the Collateral Accounts as Administrative Agent shall determine in its sole and absolute discretion to pay any Obligations,
Operating Expenses and/or capital expenditures for the Property.
(b) Borrower
hereby irrevocably constitutes and appoints Administrative Agent as Borrower’s true and lawful attorney-in-fact, with full power
of substitution, to execute, acknowledge and deliver any instruments and to exercise and enforce every right, power, remedy, option and
privilege of Borrower with respect to the Account Collateral, and do in the name, place and stead of Borrower, all such acts, things
and deeds for and on behalf of and in the name of Borrower, which Borrower could or might do or which Administrative Agent may deem necessary
or desirable to more fully vest in Administrative Agent the rights and remedies provided for herein and to accomplish the purposes of
this Agreement, provided that Administrative Agent shall only exercise such power of attorney upon the occurrence and during the
continuance of an Event of Default. The foregoing powers of attorney are irrevocable and coupled with an interest. Administrative Agent
may perform or cause performance of any such agreement, and any expenses of Administrative Agent incurred in connection therewith shall
be paid by Borrower as provided hereunder.
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(c) Borrower
hereby expressly waives, to the fullest extent permitted by law, presentment, demand, protest or any notice of any kind in connection
with this Agreement or the Account Collateral. Borrower acknowledges and agrees that ten (10) Business Days’ prior written
notice of the time and place of any public sale of the Account Collateral or any other intended disposition thereof shall be reasonable
and sufficient notice to Borrower within the meaning of the UCC.
3.2.7 Transfers
and Other Liens. Borrower agrees that it will not (i) sell or otherwise dispose of any of the Account Collateral except as
expressly set forth herein, or (ii) create or permit to exist any Lien upon or with respect to all or any of the Account Collateral,
except for the Lien granted to Administrative Agent under this Agreement and bankers’ liens in favor of the applicable depositary
bank which are subject and subordinate to the Loan.
3.2.8 Reasonable
Care. Beyond the exercise of reasonable care in the custody thereof, Administrative Agent shall have no duty as to any Account Collateral
in its possession or control as Administrative Agent therefor or bailee thereof or any income thereon or the preservation of rights against
any person or otherwise with respect thereto. Administrative Agent shall be deemed to have exercised reasonable care in the custody and
preservation of the Account Collateral in its possession if the Account Collateral is accorded treatment substantially equal to that
which Administrative Agent accords its own property, it being understood that Administrative Agent shall not be liable or responsible
for any loss or damage to any of the Account Collateral, or for any diminution in value thereof, by reason of the act or omission of
Administrative Agent, its Affiliates, agents, employees or bailees, except to the extent that such loss or damage results from Administrative
Agent’s gross negligence or willful misconduct. In no event shall Administrative Agent be liable either directly or indirectly
for losses or delays resulting from any event which may be the basis of computer malfunctions, interruption of communication facilities,
labor difficulties or other causes beyond Administrative Agent’s reasonable control (including, without limitation, strikes, stays,
judgments, orders, decrees, labor disputes, governmental restrictions, acts of God, the elements, enemy action, civil commotion, fire
casualty, accidents, shortages of, or inability to obtain, labor, utilities or material) or for special, consequential, treble or punitive
damages except to the extent of Administrative Agent’s gross negligence or willful misconduct. Notwithstanding the foregoing, Borrower
acknowledges and agrees that (i) Administrative Agent does not have custody of the Account Collateral, (ii) Cash Management
Bank has custody of the Account Collateral, (iii) Cash Management Bank was chosen by Borrower, and (iv) Administrative Agent
has no obligation or duty to supervise Cash Management Bank or to see to the safe custody of the Account Collateral.
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3.2.9 Administrative
Agent’s Liability.
(a) Administrative
Agent shall be responsible for the performance only of such duties with respect to the Account Collateral as are specifically set forth
in this Section 3.2 herein or elsewhere in the Loan Documents, and no other duty shall be implied from any provision hereof.
Administrative Agent shall not be under any obligation or duty to perform any act with respect to the Account Collateral which would
cause it to incur any expense or liability or to institute or defend any suit in respect hereof, or to advance any of its own monies.
Borrower shall indemnify and hold Administrative Agent, its employees and officers harmless from and against any actual out-of-pocket
loss, cost or damage (including, without limitation, out-of-pocket reasonable attorneys’ fees and disbursements) incurred by Administrative
Agent in connection with the transactions contemplated hereby with respect to the Account Collateral except as such may be caused by
the gross negligence or willful misconduct of Administrative Agent, its employees, officers or agents and except for any Excluded Liabilities.
(b) Administrative
Agent shall be protected in acting upon any notice, resolution, request, consent, order, certificate, report, opinion, bond or other
paper, document or signature believed by it in good faith to be genuine, and, in so acting, it may be assumed that any person purporting
to give any of the foregoing in connection with the provisions hereof has been duly authorized to do so. Administrative Agent may consult
with counsel, and the opinion of such counsel shall be full and complete authorization and protection in respect of any action taken
or suffered by it hereunder and in good faith in accordance therewith.
3.2.10 Continuing
Security Interest. This Agreement shall create a continuing security interest in the Account Collateral and shall remain in full
force and effect until the indefeasible payment in full of the Debt. Upon the indefeasible payment in full of the Debt, this security
interest shall automatically terminate without further notice from any party and Borrower and Mortgage Borrower shall be entitled to
the return, upon its request, of such of the Account Collateral as shall not have been sold or otherwise applied pursuant to the terms
hereof and Administrative Agent shall execute such instruments and documents as may be required by the Clearing Account Agreement and
Cash Management Agreement to evidence such termination and the release of the Account Collateral.
3.3 Collateral.
Borrower represents, warrants and covenants that Mortgage Borrower shall deposit, and shall cause Manager to deposit, with Administrative
Agent all Rents or other items of operating income within one (1) Business Day after receipt thereof. Until so deposited, any Rents
or other items of operating income held by Borrower or Manager shall be deemed to be collateral for the Loan and shall be held in trust
by it for the benefit, and as the property, of Administrative Agent and shall not be commingled with any other funds or property of Borrower
or Manager.
IV. REPRESENTATIONS
AND WARRANTIES.
4.1 Borrower
General Representations. Except as otherwise expressly set forth in this Article, Borrower represents and warrants to Administrative
Agent and Lenders as of the Original Closing Date, as of the date of the Initial Advance, as of the date of each Subsequent Advance,
and as of the Closing Date, and each other date on which the representations and warranties set forth herein are required to be remade,
subject to the Representation Remaking Qualifications and the Construction Update Qualification, that:
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4.1.1 Organization.
Each of Borrower, Sole Member and Mortgage Borrower is a registered organization as such term is defined in the UCC under the laws of
the state of Delaware, has been duly organized and is validly existing and in good standing pursuant to the laws of the state of Delaware
with requisite power and authority to own its properties and to transact the businesses in which it is now engaged. Each of Borrower,
Sole Member and Mortgage Borrower has been, since the date of its formation, duly qualified to do business and is in good standing in
each jurisdiction where it is required to be so qualified in connection with its properties, businesses and operations. Each of Borrower,
Sole Member and Mortgage Borrower possesses all rights, licenses, permits and authorizations, governmental or otherwise, necessary to
entitle it to own its properties and to transact the businesses in which it is now engaged, and the sole business of Borrower is the
ownership of the portion of the Collateral described in the Pledge Agreement (Sole Borrower), the sole business of Sole Member is the
ownership of the portion of the Collateral described in the Pledge Agreement (Mortgage Borrower), and the sole business of Mortgage Borrower
is the ownership, development, construction, management and operation of the Property. The organizational and ownership structure of
Borrower depicted by the schematic diagram attached as Schedule XII (the “Organizational Chart”) is accurate
as to and to the extent of the detail set forth thereon, and there has been no Transfer of any direct and/or indirect, legal and/or beneficial
interest in Borrower other than as permitted pursuant to Article 8 hereof. Borrower has taken all steps reasonably requested
by Administrative Agent to grant, perfect, protect and/or preserve the security interest granted hereunder to Administrative Agent. As
of the Closing Date, each of the applicable Minimum Hold/Control Requirements are fully satisfied.
4.1.2 Proceedings.
Each of Borrower, Sole Member, Mortgage Borrower and Guarantor, as applicable, has taken all necessary action to authorize the execution,
delivery and performance of this Agreement and each of the other Loan Documents to which it is a party. This Agreement and each of the
other Loan Documents to which Borrower, Sole Member, Mortgage Borrower and Guarantor is a party have been duly executed and delivered
by, or on behalf of, Borrower, Sole Member, Mortgage Borrower and Guarantor, as applicable, and constitute legal, valid and binding obligations
of Borrower, Sole Member and Guarantor, as applicable, enforceable against Borrower. Sole Member, Mortgage Borrower and Guarantor, as
applicable, in accordance with their respective terms, subject only to applicable bankruptcy, insolvency and similar laws affecting rights
of creditors generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought
in a proceeding in equity or at law).
4.1.3 No
Conflicts. The execution, delivery and performance of this Agreement and the other Loan Documents by Borrower, Sole Member, Mortgage
Borrower and Guarantor, as applicable, will not result in a breach of any of the terms or provisions of, or constitute a default under,
or result in the creation or imposition of any lien, charge or encumbrance (other than pursuant to the Loan Documents) upon any of the
property or assets of Borrower, Sole Member, Mortgage Borrower or Guarantor pursuant to the terms of any indenture, mortgage, deed of
trust, loan agreement, partnership agreement or other agreement or instrument to which Borrower, Sole Member, Mortgage Borrower or Guarantor
is a party or by which any of Borrower’s, Sole Member’s, Mortgage Borrower’s or Guarantor’s property or assets
is subject (unless consents from all applicable parties thereto have been obtained), nor will such action result in any violation of
the provisions of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over
Borrower, Sole Member, Mortgage Borrower or Guarantor or any of Borrower’s, Sole Member’s, Mortgage Borrower’s or Guarantor’s
properties or assets, and any consent, approval, authorization, order, registration or qualification of or with any court or any such
regulatory authority or other governmental agency or body required for the execution, delivery and performance by Borrower, Mortgage
Borrower or Guarantor of this Agreement or any other Loan Documents has been obtained and is in full force and effect.
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4.1.4 Litigation.
There are no actions, suits or proceedings at law or in equity by or before any Governmental Authority or other agency now pending or,
to Borrower’s actual knowledge, threatened in writing against or affecting Borrower, Mortgage Borrower, Sole Member, Guarantor
or the Property or the Collateral which actions, suits or proceedings, if determined against Borrower, Guarantor, the Property or the
Collateral, are reasonably likely to have a Material Adverse Effect.
4.1.5 Agreements.
Neither of Borrower, Sole Member or Mortgage Borrower is a party to any agreement or instrument or subject to any restriction which is
reasonably likely to have a Material Adverse Effect. None of Borrower, Mortgage Borrower, Sole Member or Guarantor is in default in any
material respect in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in any agreement
or instrument to which it is a party or by which Borrower, Mortgage Borrower, Guarantor, Sole Member, the Property or the Collateral
is bound and which would have a Material Adverse Effect. Neither of Borrower, Mortgage Borrower or Sole Member has any financial obligation
(contingent or otherwise) under any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which Borrower,
Mortgage Borrower or Sole Member is a party or by which Borrower, Mortgage Borrower, Sole Member, the Property or the Collateral is otherwise
bound, other than (a) obligations incurred in the ordinary course of the operation of the Property, (b) obligations under the
Loan Documents, (c) obligations under the Project Documents and (d) the Permitted Encumbrances. True, complete and correct
copies in all material respects of all Material Service Contracts, each of which is listed on Schedule XIII, have been delivered
(or made available via the Data Room) to Administrative Agent.
4.1.6 Title
and Security.
(a) Mortgage
Borrower has good, marketable and insurable fee simple title to the Land and the Improvements, free and clear of all Liens whatsoever
subject to Permitted Encumbrances. Mortgage Borrower has good title to the remainder of the Property, free and clear of all Liens whatsoever
subject to Permitted Encumbrances. Sole Member has good and marketable title to the equity interests in Mortgage Borrower, free and clear
of all Liens whatsoever subject to Permitted Encumbrances. Borrower has good has good and marketable title to the equity interests in
the Sole Member, free and clear of all Liens whatsoever subject to Permitted Encumbrances.
(b) (i) The
Mortgage when properly recorded in the appropriate records, together with any UCC financing statements required to be filed in connection
therewith, will create a valid, perfected first priority lien on the Land and the Improvements, subject only to Permitted Encumbrances,
and (ii) the filing of a Uniform Commercial Code Financing statement with the Delaware Secretary of State will create a perfected
security interests in and to, and perfected collateral assignments of, all personalty (including the Leases), all in accordance with
the terms thereof, in each case subject only to any applicable Permitted Encumbrances.
(c) To
Borrower’s actual knowledge, other than unpaid invoices in connection with the Required Improvements that have been disclosed in
writing to Administrative Agent or are otherwise being contested in accordance with Section 7.3, there are no claims for
payment for work, labor or materials affecting the Property which are or may become a lien prior to, or of equal priority with, the Liens
created by the Mortgage.
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(d) To
Borrower’s actual knowledge, other than unpaid invoices in connection with the Required Improvements that have been disclosed in
writing to Administrative Agent or are otherwise being contested in accordance with Section 7.3, there are no claims for
payment for work, labor or materials affecting the Property which are or may become a Lien on the Property.
(e) True,
complete and correct copies in all material respects of all REAs, each of which is listed on Schedule VIII, have been delivered
or made available to Administrative Agent. Except as set forth in the Pro Forma or Schedule VIII, there are no REAs or other documents,
instruments or agreements affecting zoning or entitlements with regard to the Property.
(f) The
Pledge Agreements, together with any UCC financing statements required to be filed in connection therewith and delivery to Administrative
Agent of the certificates evidencing the Collateral, will create (i) a valid, perfected first priority lien on Borrower’s
and Sole Member’s respective interests in the Collateral, and (ii) perfected security interests in and to, and perfected collateral
assignments of, all Collateral. To Borrower’s actual knowledge, there are no claims for payment or other similar liens or claims
which have been filed which are or may become a lien prior to, or of equal priority with, the Lien created by the Pledge Agreement and
the other Loan Documents.
(g) There
are no events or circumstances that exist that would be reasonably likely to result in the coverage under the UCC Policy being denied,
rejected or reduced for any reason.
4.1.7 No
Bankruptcy Filing. None of Borrower, Mortgage Borrower, Sole Member or Guarantor is contemplating either the filing of a petition
by it under any state or federal bankruptcy or insolvency laws or the liquidation of all or a major portion of such entity’s
assets or property, and Borrower has no actual knowledge of any Person contemplating the filing of any such petition against Borrower,
Mortgage Borrower, Sole Member or Guarantor.
4.1.8 Full
and Accurate Disclosure. As of the date hereof, no statement of fact made by Borrower, Sole Member, Mortgage Borrower or Guarantor
in this Agreement or in any of the other Loan Documents contains any untrue statement and Borrower has no actual knowledge that any such
statement of a material fact or omits to state any material fact necessary to make statements contained herein or therein not misleading
in any material respect. There is no material fact presently actually known to Borrower which has not been disclosed in writing to Administrative
Agent which is reasonably likely to (i) result in a Material Adverse Effect or (ii) materially impact Borrower’s or Mortgage
Borrower’s ability to complete the Project or comply with the terms of this Agreement and the other Loan Documents.
4.1.9 All
Property and the Collateral. The Property constitutes all of the real property, personal property, equipment and fixtures currently
owned or leased by Mortgage Borrower. The portion of the Collateral described in the Pledge Agreement (Sole Member) constitutes all of
the property and assets currently owned by Borrower.
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4.1.10 No
Plan Assets.
(a) None
of Borrower, Mortgage Borrower, Sole Member, Guarantor or any ERISA Affiliate or, with respect to the Property, the Manager, maintains,
has any obligation to contribute to, or any liability (contingent or otherwise) in respect of a Plan which is subject to Title IV of
ERISA.
(b) None
of Borrower, Mortgage Borrower, Sole Member, Guarantor, any of their ERISA Affiliates, or, with respect to the Property, the Manager,
has (i) failed to make any required contribution to a Multiemployer Plan when due, (ii) incurred any liability with respect
to the partial or complete withdrawal (as such terms are defined in Section 4203 and 4205 of ERISA, respectively) from any Multiemployer
Plan that remains unsatisfied, or (iii) received any notice from any Multiemployer Plan concerning the imposition of Withdrawal
Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent, or in endangered or critical status within
the meaning of Section 432 of the Internal Revenue Code or Title IV of ERISA. The Withdrawal Liability (contingent or otherwise)
of Borrower, Mortgage Borrower, Sole Member, Guarantor, their ERISA Affiliates, and, with respect to the Property, the Manager, with
respect to a withdrawal from any Multiemployer Plan if such withdrawal were to occur, would not reasonably be expected result in material
liability to any Borrower Party.
(c) None
of Borrower, Mortgage Borrower, Sole Member or Guarantor is (a) an employee benefit plan defined in Section 3(3) of ERISA
that is subject to ERISA, (b) a plan as defined in Section 4975(e)(1) of the Code that is subject to Section 4975
of the Code, (c) an entity whose underlying assets constitute “plan assets” of one or more such employee benefit plans
or plans within the meaning of 29 C.F.R. Section 2510.3-101 as modified by Section 3(42) of ERISA, (d) a “governmental
plan” within the meaning of Section 3(32) of ERISA or subject to state statutes regulating investments and fiduciary obligations
with respect to governmental plans that would be violated by the transactions contemplated by the Loan Documents.
4.1.11 Compliance.
To Borrower’s actual knowledge, except as set forth in the Title Policy, Borrower, Mortgage Borrower, the Collateral and the Property
and, upon its completion, the use of any portion of the Required Improvements shall comply in all material respects with all applicable
Legal Requirements, including, without limitation, building and zoning ordinances and codes. To Borrower’s actual knowledge, neither
Borrower, Mortgage Borrower nor Sole Member is in material default or in material violation of any order, writ, injunction, decree or
demand of any Governmental Authority. To Borrower’s actual knowledge, there has not been committed by Borrower, Mortgage Borrower,
Sole Member or any Affiliate of Borrower, Mortgage Borrower, or Sole Member any act or omission affording the federal government or any
other Governmental Authority the right of forfeiture as against the Property, the Collateral or any part thereof or any monies paid in
performance of Borrower’s obligations under any of the Loan Documents.
4.1.12 Financial
Information. All financial data including, without limitation, to the extent applicable, the statements of cash flow and income and
operating expense, that have been prepared by (or at the direction of) Borrower or Mortgage Borrower and delivered to Administrative
Agent in respect of the Property and the Collateral (i) are true, complete and correct in all material respects as of the date
of such financial statements, (ii) fairly represent the financial condition of the Property and the Collateral as of the date of
such reports, and (iii) to the extent prepared or audited by an independent certified public accounting firm, have been prepared
in accordance with the Approved Accounting Method throughout the periods covered, except as disclosed therein. Except for Permitted Encumbrances,
neither Borrower, Mortgage Borrower, nor Sole Member has any contingent liabilities (other than liabilities for Taxes not yet delinquent),
unusual forward or long term commitments or unrealized or anticipated losses from any unfavorable commitments that are actually known
to Borrower, Mortgage Borrower or Sole Member and reasonably likely to have a Material Adverse Effect on the operation of the Property
or the Collateral. As of the date hereof, since the most recent financial statements delivered to Administrative Agent, there has been
no material adverse change in the financial condition, operations or business of Borrower, Mortgage Borrower or Sole Member from those
set forth in said financial statements.
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4.1.13 Condemnation.
Except as disclosed in writing to Administrative Agent, no Taking has been commenced or, to Borrower’s actual knowledge, is threatened
in writing, with respect to all or any portion of the Property or for the relocation of roadways providing access to the Property.
4.1.14 Not
a Foreign Person. Borrower (or, if Borrower is disregarded as an entity from a Person for U.S. federal income purposes, such Person)
is not a foreign person within the meaning of Section 1445(f)(3) of the Code. Sole Member (or, if Sole Member is disregarded
as an entity from a Person for U.S. federal income purposes, such Person) is not a foreign person within the meaning of Section 1445(f)(3) of
the Code. Mortgage Borrower (or, if Mortgage Borrower is disregarded as an entity from a Person for U.S. federal income purposes, such
Person) is not a foreign person within the meaning of Section 1445(f)(3) of the Code.
4.1.15 Federal
Reserve Regulations. None of the proceeds of the Loan will be used for the purpose of purchasing or carrying any “margin stock”
as defined in Regulation U, Regulation X or Regulation T or for the purpose of reducing or retiring any Debt which was originally incurred
to purchase or carry “margin stock” or for any other purpose which might constitute this transaction a “purpose credit”
within the meaning of Regulation U or Regulation X. As of the Closing Date, neither Borrower, nor Mortgage Borrower owns any “margin
stock.”
4.1.16 Separate
Lots. Other than as may be expressly disclosed in the Survey, the Real Property (including all rights under the Zoning Documents)
is comprised of one (1) or more contiguous parcels which constitute a separate tax lot or lots and does not constitute or include
a portion of any other tax lot not a part of the Property.
4.1.17 Assessments.
To Borrower’s actual knowledge, except as set forth in the Title Policy, there are no pending or proposed special or other assessments
for public improvements or otherwise affecting the Property, nor are there any contemplated improvements to the Property that may result
in such special or other assessments.
4.1.18 Enforceability.
The Loan Documents to which any Borrower Party is a party are not subject to any existing right of rescission, set off, counterclaim
or defense by Borrower, Mortgage Borrower or Sole Member, including the defense of usury, nor would the operation of any of the terms
of the Loan Documents, or the exercise of any right thereunder, render the Loan Documents unenforceable (subject to principles of equity
and bankruptcy, insolvency and other laws generally affecting creditors’ rights and the enforcement of debtors’ obligations),
and neither Borrower, Mortgage Borrower nor Sole Member has asserted any right of rescission, set off, counterclaim or defense with respect
thereto.
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4.1.19 No
Prior Assignment. There are no prior sales, transfers or assignments of the landlord’s interest under the Leases or any portion
of the Rents due and payable or to become due and payable which are presently outstanding following the funding of the Loan. Other than
pursuant to the Loan Documents, there are no assignments, hypothecations or pledges of the Collateral.
4.1.20 Easements;
Utilities and Public Access. Other than as expressly disclosed in the Survey, the Property has rights of access to public ways and
is, or following Component Substantial Completion of any applicable Component, will be, served by water, sewer, sanitary sewer and storm
drain facilities adequate to service the Property for its intended uses. Other than as expressly disclosed in the Survey, all public
utilities necessary to the continued use and enjoyment of the Property are, or following Component Substantial Completion of any applicable
Component, will be, located either in the public right of way abutting the Property (which are connected so as to serve the Property
without passing over any other property) or in recorded easements serving the Property and such easements are set forth in the Title
Policy, and all such utility services shall be (i) sufficient to service the Property for its intended use (i.e., steam supply,
electric power, domestic water, sewerage storm water, gas and telecommunications), (ii) provided by the local municipalities or
utility companies and (iii) sized to accommodate the capacities necessary to support the building loads and needs based on the contemplated
occupancies. Other than as expressly disclosed in the Survey, all roads necessary for the use of the Property for its current purposes
have been completed and dedicated to public use and accepted by all applicable Governmental Authorities.
4.1.21 Flood
Zone. Other than as expressly disclosed in the Survey, none of the Improvements (including any recreational areas) on the Property
are located in an area as identified by the Federal Emergency Management Agency as an area having special flood hazards.
4.1.22 Other
Obligations and Liabilities. Neither Borrower, Mortgage Borrower nor Sole Member has any liabilities or other obligations that arose
or accrued prior to the Closing Date that, either individually or in the aggregate, could reasonably be expected to have a Material Adverse
Effect.
4.1.23 Boundaries.
Except as shown on the Survey or disclosed in the Title Policy, to Borrower’s actual knowledge, no improvements on adjoining properties
encroach upon any of the Required Improvement, so as to adversely affect the value or marketability of the Property except those which
are insured against by each Title Policy. All of the improvements which are included in determining the appraised value of the Property
lie wholly within the boundaries and building restriction lines of the Property.
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4.1.24 Leases.
The Property is not subject to any Leases except those set forth on Schedule XVII and Leases entered into after the Closing Date
in accordance with Section 5.1.25, and no Person has any possessory interest in the Property or right to occupy the same
except Mortgage Borrower. Neither Borrower, Mortgage Borrower nor any other Borrower Party is a party to any Lease for premises used
in connection with marketing all or any portion of the Project for lease or sale. There is no Leasing Agency Agreement currently in place
with respect to the Property other than the Existing Leasing Agency Agreement. To the extent any portion of the Property is subject to
a Lease, except as disclosed in any rent roll delivered to Administrative Agent, (a) Mortgage Borrower is the sole owner of the
entire lessor’s interest in such Lease, (b) except as disclosed in writing to Administrative Agent, such Lease in full force
and effect, and there are no material defaults thereunder by either Mortgage Borrower, or to Borrower’s actual knowledge, any other
party, and there are no conditions that, with the passage of time or the giving of notice, or both, would constitute material defaults
thereunder, (c) except as disclosed in writing to Administrative Agent, neither Borrower nor Mortgage Borrower has received any
written notice of termination from any Tenant under such Lease, (d) Borrower has delivered to Administrative Agent a true and complete
copy in all material respects of such Lease, and there are no oral agreements with respect thereto, (e) no rent under such Lease
(other than security deposits, if any) has been paid more than one (1) month in advance of its due date, all such rents due have
been paid in full and no Tenant is in arrears in its payment of rent, (f) except as disclosed to Administrative Agent in writing,
to Borrower’s actual knowledge, there exist no offsets or defenses to the payment of any portion of rents under such Lease and
neither Borrower nor Mortgage Borrower has any monetary obligation to any Tenant under such Lease, (g) neither Borrower nor Mortgage
Borrower has received any notice from any Tenant challenging the validity or enforceability of such Lease, (h) all security deposits,
if any, relating to such Lease reflected on the rent roll have been collected by Mortgage Borrower and are being held in accordance with
Legal Requirements, and (i) to Borrower’s actual knowledge, no Tenant has sublet any portion of the premises demised to such
Tenant under its Lease or any portion thereof.
4.1.25 Filing
and Recording Taxes. All transfer taxes, deed stamps, intangible taxes or other amounts in the nature of transfer taxes required
to be paid by any Person under applicable Legal Requirements currently in effect in connection with the transfer of the Property to Mortgage
Borrower have been paid (or will be timely paid as required under applicable law). All mortgage, mortgage recording, stamp, intangible
or other similar tax required to be paid by any Person under applicable Legal Requirements currently in effect in connection with the
execution, delivery, recordation, filing, registration, perfection or enforcement of any of the Mortgage Loan Documents, including, without
limitation, the Mortgage, have been paid (or will be paid prior to delinquency).
4.1.26 Zoning
and Entitlement Documents.
(a) True,
complete and correct copies in all material respects of all Zoning Documents, each of which is listed on Schedule V attached hereto,
have been delivered (or made available via the Data Room) to Administrative Agent. The Property is subject to the Zoning Documents and
Mortgage Borrower is a party to each of the same. The Zoning Documents are in full force and effect. Except as set forth on Schedule
V attached hereto, the Zoning Documents have not been amended, modified or supplemented. Mortgage Borrower’s interest under
the Zoning Documents has not been assigned pursuant to any assignment which survives the Closing Date except the assignment to Administrative
Agent and Lenders pursuant to the Loan Documents.
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(b) Mortgage
Borrower is not in monetary or material non-monetary default under the Zoning Documents (beyond applicable notice, grace and/or cure
period), and to Borrower’s actual knowledge, no other party to the Zoning Documents is in monetary or material non-monetary default
thereunder (beyond applicable notice, grace and/or cure periods) and there is no existing condition which, but for the passage of time
or the giving of notice or both, are reasonably likely to result in a monetary or material non-monetary default under the Zoning Documents.
To Borrower’s actual knowledge, there are no set-offs, claims, counterclaims or defenses being asserted or capable of being asserted
after giving the requisite notice, if any, required under the Zoning Documents or otherwise known by Borrower or any other party to the
Zoning Documents for the enforcement of the obligations of any party thereunder. To Borrower’s actual knowledge, there are no Liens
capable of being asserted for amounts due under the provisions of the Zoning Documents which, if unpaid, may be asserted as a Lien prior
to the Lien of the Mortgage.
(c) Pursuant
to the Zoning Documents and all Legal Requirements, Mortgage Borrower has sufficient development rights to construct the Project and
there are no remaining zoning or discretionary approvals required in order to complete the Required Improvements.
4.1.27 Property
Operating Agreements.
(a) True,
complete and correct copies in all material respects of all Parking Management Agreements, each of which is listed on Schedule VI
attached hereto, have been delivered (or made available to via the Data Room) to Administrative Agent. Mortgage Borrower is a party to,
and the Property is subject to, the Parking Management Agreement. The Parking Management Agreement is in full force and effect. Except
as set forth on Schedule VI attached hereto, the Parking Management Agreement has not been amended, modified or supplemented in
any manner related to the Property or Project. Mortgage Borrower’s interest under the Parking Management Agreement with respect
to the Property or Project has not been assigned pursuant to any assignment except for the assignment to Mortgage Administrative Agent
and Mortgage Lenders pursuant to the Mortgage Loan Documents.
(b) True,
complete and correct copies in all material respects of all Property Operating Agreements, each of which is listed on Schedule VI
attached hereto, have been delivered (or made available to via the Data Room) to Administrative Agent. The Property is subject to the
Property Operating Agreements and Mortgage Borrower is a party to each of the same. The Property Operating Agreements are in full force
and effect. Except as set forth on Schedule VI attached hereto, the Property Operating Agreements have not been amended, modified
or supplemented in any manner related to the Property or Project. Mortgage Borrower’s interest under the Property Operating Agreements
with respect to the Property or Project has not been assigned pursuant to any assignment except for any assignment to Mortgage Administrative
Agent and Mortgage Lenders pursuant to the Mortgage Loan Documents.
(c) Mortgage
Borrower is not in material default after applicable notice, grace and/or cure period under the Property Operating Agreements, and to
Borrower’s actual knowledge, no other party to the Property Operating Agreements is in material default thereunder after applicable
notice, grace and/or cure periods, and there is no existing condition which, but for the passage of time or the giving of notice or both,
is reasonably likely to result in a material default under the Property Operating Agreements. There are no set-offs, claims, counterclaims
or defenses being asserted or, to Borrower’s actual knowledge, capable of being asserted after giving the requisite notice, if
any, required under the Property Operating Agreements or otherwise actually known by Borrower for the enforcement of the obligations
of any party thereunder. To Borrower’s actual knowledge, there are no Liens capable of being asserted for amounts due under the
provisions of the Property Operating Agreements which, if unpaid, may be asserted as a Lien prior to the Lien of the Mortgage.
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(d) The
Construction Management Agreement and the Affiliate Management Agreement are each entered into with an Affiliate Service Provider, in
the ordinary course of its business and on terms which are no less favorable to it than would be obtained in a comparable arms-length
transaction with an unrelated third party.
4.1.28 Illegal
Activity. No portion of the Property has been or will be purchased with proceeds of any illegal activity.
4.1.29 No
Change in Facts or Circumstances; Disclosure. All financial statements submitted by Borrower to Administrative Agent are accurate,
complete and correct in all material respects. All other reports, certificates and other documents submitted by Borrower to Administrative
Agent in connection with the Loan are, to Borrower’s knowledge, accurate, complete and correct in all material respects. Except
with respect to such representations and warranties contained in this Agreement or in any other Loan Document which are qualified as
being made to Borrower’s knowledge, all representations and warranties made by Borrower in this Agreement, Mortgage Borrower in
the Mortgage or by Borrower, Sole Member, Mortgage Borrower or Guarantor in any other Loan Document are accurate, complete and correct
in all material respects. As of the date hereof, there has been no material adverse change known to Borrower in any condition, fact,
circumstance or event that would make any such information inaccurate, incomplete or otherwise misleading in any material respect or
that otherwise materially and adversely affects the Property, the Collateral or the business operations or the financial condition of
Borrower, Sole Member or Mortgage Borrower. Borrower has not failed to disclose any material fact known to Borrower that is reasonably
likely to cause any representation or warranty made herein to be materially misleading.
4.1.30 Tax
Matters. Borrower or its sole beneficial owner for U.S. federal income tax purposes has filed (or has obtained effective extensions
for filing) all material U.S. federal, state and local Tax returns required to be filed and, subject to Borrower’s rights to contest
any Taxes in accordance with the Loan Documents, has paid or made adequate provision for the payment of all material federal, state and
local Taxes payable by Borrower or such owner, as applicable. Borrower is either a disregarded entity or a partnership for U.S. federal
income tax purposes.
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4.1.31 Solvency/Fraudulent
Conveyance. Each of Borrower, Sole Member and Mortgage Borrower (a) has not entered into the transaction contemplated by this
Agreement or any Loan Document with the actual intent to hinder, delay, or defraud any creditor, and (b) has received reasonably
equivalent value in exchange for its obligations under the Loan Documents. After giving effect to the Loan, the fair saleable value of
Borrower’s and Mortgage Borrower’s assets exceeds and will, immediately following the making of the Loan, exceed Borrower’s
total and Mortgage Borrower’s liabilities, including, without limitation, subordinated, unliquidated, disputed and contingent liabilities.
The fair saleable value of Borrower’s and Mortgage Borrower’s assets is and will, immediately following the making of the
Loan, be greater than Borrower’s and Mortgage Borrower’s probable liabilities, including the maximum amount of its contingent
liabilities on its debts as such debts become absolute and matured, Borrower’s and Mortgage Borrower’s assets do not and,
immediately following the making of the Loan will not, constitute unreasonably small capital to carry out its business as conducted or
as proposed to be conducted. Borrower, Sole Member and Mortgage Borrower do not intend to, and does not believe that it will, incur Indebtedness
and liabilities (including contingent liabilities and other commitments) beyond its ability to pay such Indebtedness and liabilities
as they mature (taking into account the timing and amounts of cash to be received by Borrower and Mortgage Borrower and the amounts to
be payable on or in respect of obligations of Borrower and Mortgage Borrower). No petition in bankruptcy has been filed against Borrower,
Mortgage Borrower, Sole Member or Guarantor or any of their respective Affiliates in the last seven (7) years, and none of Borrower,
Mortgage Borrower, Sole Member or Guarantor nor any of their respective Affiliates in the last seven (7) years has ever made an
assignment for the benefit of creditors or taken advantage of any insolvency act for the benefit of debtors.
4.1.32 Investment
Company Act. Neither Borrower, Mortgage Borrower nor Sole Member is (a) an investment company or a company Controlled by an
investment company, within the meaning of the Investment Company Act of 1940, as amended; (b) a holding company or a subsidiary
company of a holding company or an affiliate of either a holding company or a subsidiary company within the meaning of the Energy Policy
Act of 2005, as amended; or (c) subject to any other federal or state law or regulation which purports to restrict or regulate its
ability to borrow money.
4.1.33 Assignment
of Leases. Upon recordation with the Registry, the Mortgage will create a valid assignment of, or a valid security interest in, certain
rights under the Leases to which Mortgage Borrower is a party, subject only to a license granted to Mortgage Borrower to exercise certain
rights and to perform certain obligations of the lessor under the Leases, as more particularly set forth therein, subject to Permitted
Encumbrances. No Person other than Administrative Agent and Mortgage Borrower has any interest in or assignment of the Leases or any
portion of the Rents due and payable thereunder or to become due and payable thereunder.
4.1.34 Labor.
No organized work stoppage or labor strike is pending or, to Borrower’s actual knowledge, threatened by employees and other
laborers at the Property. None of Borrower, Mortgage Borrower, Sole Member or Construction Manager, or, to Borrower’s knowledge,
any General Contractor or Project Manager, (i) is involved in or threatened with any labor dispute, grievance or litigation relating
to labor matters involving any employees and other laborers at the Property, including, without limitation, violation of any federal,
state or local labor, safety or employment laws (domestic or foreign) and/or charges of unfair labor practices or discrimination complaints;
(ii) has engaged in any unfair labor practices within the meaning of the National Labor Relations Act or the Railway Labor Act with
respect to employees or other laborers employed or providing services related to the Property; (iii) is a party to, or bound by,
any collective bargaining agreement or union contract with respect to employees and other laborers at the Property (any such agreement
or contract, a “Labor Agreement”) and no such Labor Agreement is currently being negotiated by Borrower, Mortgage
Borrower, Sole Member or any of their respective Affiliates, (iv) has incurred any unsatisfied, nor is expected to incur, any Withdrawal
Liability; or (v) has or will have any liability in connection with the termination of any employees employed at the Property, whether
under any Management Agreement or otherwise.
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4.1.35 Intentionally
Omitted.
4.1.36 No
Other Indebtedness. Neither Borrower, Mortgage Borrower nor Sole Member has borrowed or received debt financing that has not been
heretofore repaid in full, other than the Permitted Indebtedness.
4.1.37 Taxpayer
Identification Number. Borrower’s Federal taxpayer identification number is 92-0670765. Sole Member’s Federal taxpayer
identification number is 92-0685569. Mortgage Borrower’s Federal taxpayer identification number is 88-2153827.
4.1.38 Principal
Place of Business. Borrower’s, Sole Member’s and Mortgage Borrower’s principal place of business and chief executive
office is One Boston Place, 201 Washington Street, Suite 3920, Boston, MA 02108.
4.1.39 Patriot
Act.
(a) None
of Borrower, Mortgage Borrower, Sole Member, Guarantor, any of their respective Affiliates or, to Borrower’s knowledge, any holder
of a direct or indirect interest in any of the foregoing, is a Prohibited Person.
(b) None
of Borrower, Mortgage Borrower, Sole Member, Guarantor, any of their respective Affiliates, or, to Borrower’s knowledge, any holder
of a direct or indirect interest in any of the foregoing, (i) has conducted or will conduct any business or has engaged or will
engage in any transaction or dealing with any Prohibited Person, including making or receiving any contribution of funds, goods or services
to or for the benefit of any Prohibited Person, (ii) has dealt or will deal in, or otherwise has engaged or will engage in, any
transaction relating to, any property or interests in property blocked pursuant to Executive Order No. 13224; or (iii) has
engaged or will engage in or has conspired or will conspire to engage in any transaction that evades or avoids, or has the purpose of
evading or avoiding, or attempts to violate, any of the prohibitions set forth in the Patriot Act.
(c) None
of the funds or other assets of any Borrower Party constitute property of, or are beneficially owned, directly or indirectly, by any
Prohibited Person.
(d) Borrower
covenants and agrees to deliver to Administrative Agent any certification or other evidence requested from time to time by Administrative
Agent in its sole discretion, confirming compliance with this Section 4.1.39.
4.1.40 Bank
Holding Company. Neither Mortgage Borrower nor Borrower is a “bank holding company” or a direct or indirect subsidiary
of a “bank holding company” as defined in the Bank Holding Company Act of 1956, as amended, and Regulation Y thereunder of
the Board of Governors of the Federal Reserve System.
4.1.41 Survey.
The Survey delivered to Administrative Agent on or prior to the Closing Date, to Borrower’s actual knowledge, does not fail to
reflect any material survey matter affecting the Property or the title thereto.
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4.1.42 Intellectual
Property.
(a) Each
of Borrower and/or Mortgage Borrower owns all patents, licenses, franchises, trademarks, trademark rights, trade names, trade name rights,
trade secrets and copyrights (collectively, the “Intellectual Property”) necessary to the conduct of its businesses,
without known conflict with any patent, license, franchise, trademark, trade secret, trade name, copyright, or other proprietary right
of any other Person. To Borrower’s knowledge, all such Intellectual Property is fully protected and/or duly and properly registered,
filed or issued in the appropriate office and jurisdictions for such registrations, filing or issuances. To Borrower’s actual knowledge,
no material claim has been asserted by any Person with respect to the use of any such Intellectual Property or challenging or questioning
the validity or effectiveness of any such Intellectual Property.
(b) Borrower
(i) does not have or hold any Intellectual Property and (ii) is not the registered holder of any web site.
4.1.43 Permits;
Licenses. To Borrower’s actual knowledge, all certifications, permits, licenses and approvals required as of the Closing Date
with respect to the Property (collectively, the “Licenses”), have been obtained and are in full force and effect,
and true, correct and complete (in all material respects) copies of same have been delivered to Administrative Agent.
4.1.44 Underwriting
Representations. Borrower hereby represents that, as of the Closing Date:
(a) neither
Borrower nor Mortgage Borrower have any judgments or liens of any nature against it except for liens for Taxes not yet delinquent and
Permitted Encumbrances;
(b) neither
Borrower nor Mortgage Borrower is a party to any proceeding with any taxing authority (other than appeals of real estate tax assessments);
(c) neither
Borrower nor Mortgage Borrower is now, nor has Borrower ever been, a party to any lawsuit, arbitration, summons, or legal proceeding
that is still pending or that resulted in a judgment against it or its assets or properties that has not been satisfied or paid in full;
(d) to
Borrower’s knowledge, the Property is not located in an area with a high degree of seismic activity;
(e) Mortgage
Borrower has obtained a current Phase I environmental site assessment (and, if applicable, a current Phase II environmental assessment)
(collectively, the “ESA”) for the Property prepared consistent with ASTM Practice E 1527 and the ESA has not identified
any recognized environmental conditions that require further investigation or remediation except as noted therein;
(f) Borrower
has never owned any assets or engaged in any business other than owning one hundred percent (100%) of the limited liability company interests
in Sole Member. Sole Member has never owned any assets or engaged in any business other than owning one hundred percent (100%) of the
limited liability company interests in Mortgage Borrower. Mortgage Borrower has never owned any assets or engaged in any business other
than owning, developing, constructing, maintaining, repairing, improving, managing, marketing, leasing, financing and operating the Property.
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(g) each
amendment and restatement of Borrower’s and Mortgage Borrower’s Organizational Documents has been accomplished in accordance
with, and was permitted by, the relevant provisions of said documents prior to such amendment or restatement from time to time.
4.1.45 Intentionally
Omitted.
4.1.46 Insurance.
Borrower has caused Mortgage Borrower to obtain and deliver to Administrative Agent complete copies of valid certificates of insurance
(or other reasonably acceptable evidence with respect to the policies required pursuant to Section 6.2) reflecting the insurance
coverages, amounts and other requirements set forth in this Agreement. No claims with respect to Borrower or the Property have been made
or are currently pending, outstanding or otherwise remain unsatisfied under any such insurance policy, and neither Borrower nor, to Borrower’s
knowledge, any other Person, has done, by act or omission, anything which would impair the coverage of any such insurance policy.
4.1.47 Intentionally
Omitted.
4.1.48 Inventory.
Mortgage Borrower is the owner of all of the Equipment, Fixtures and Personal Property and FF&E located on or at the Property and
shall not lease any equipment, fixtures or personal property other than Approved Equipment Financing, as otherwise expressly permitted
hereunder or with Administrative Agent’s prior written consent not to be unreasonably withheld, conditioned or delayed.
4.1.49 Minimum
Equity Requirement Satisfaction. As of the Closing Date, direct and indirect owners in Borrower and Mortgage Borrower, in the aggregate,
have invested no less than the Closing Date Minimum Equity Requirement.
4.1.50 Intentionally
Omitted.
4.1.51 Intentionally
Omitted.
4.1.52 Intentionally
Omitted.
4.1.53 Collateral;
Certificates Securities.
(a) Borrower
is the sole legal and beneficial owner of the equity interests in Sole Member and no Liens exist (except the Permitted Encumbrances (including
the Liens and security interests created by the Loan Documents)) upon such Collateral at any time (and no right or option to acquire
the same exists in favor of any other Person). Such Collateral is not and will not be subject to any contractual restriction upon the
transfer thereof (except for any such restriction contained in this Agreement, the Pledge Agreements or the other Loan Documents).
(b) Sole
Member is the sole legal and beneficial owner of the equity interests in Mortgage Borrower and no Liens exist (except the Permitted Encumbrances
(including the Liens and security interests created by the Loan Documents)) upon such Collateral at any time (and no right or option
to acquire the same exists in favor of any other Person). Such Collateral is not and will not be subject to any contractual restriction
upon the transfer thereof (except for any such restriction contained in this Agreement, the Pledge Agreements or the other Loan Documents).
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(c) The
limited liability company interests in Sole Member are and shall at all times during the term of the Loan be evidenced by a “certificated
security” governed by Article 8 of the UCC. Sole Member has “opted in” to Article 8 of the UCC, has not opted
out and Borrower shall not permit Sole Member to opt out of such Article 8 of the UCC, and Borrower shall cause a registry of the
holders of limited liability company in Sole Member to be maintained at all times.
(d) The
limited liability company interests in Mortgage Borrower are and shall at all times during the term of the Loan be evidenced by a “certificated
security” governed by Article 8 of the UCC. Mortgage Borrower Member has “opted in” to Article 8 of the UCC,
has not opted out and Borrower shall not permit Mortgage Borrower to opt out of such Article 8 of the UCC, and Borrower shall cause
Sole Member to cause a registry of the holders of limited liability company in Mortgage Borrower to be maintained at all times.
4.2 Construction
and Project Representations.
4.2.1 Construction
Agreements; Material Construction Permits.
(a) True,
complete and correct copies in all material respects of all Construction Agreements and Construction Permits, each of which is listed
on Schedule III attached hereto, have been delivered (or made available via the Data Room) to Administrative Agent. Each of the
Construction Agreements and Construction Permits to which Mortgage Borrower or its Affiliates is a party is in full force and effect,
and to Borrower’s actual knowledge, each other Material Construction Agreement and material Construction Permit is in full force
and effect.
(b) The
Construction Agreements to which Mortgage Borrower or any Affiliate of Borrower is a party have each been duly executed (to the extent
necessary to be effective) and delivered by Borrower.
(c) The
Material Construction Agreements to which Mortgage Borrower or any Affiliate of Mortgage Borrower is a party each constitute a legal,
valid and binding obligation of Mortgage Borrower, enforceable against Mortgage Borrower in accordance with its terms, except as enforceability
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’
rights generally.
(d) Neither
Mortgage Borrower nor, to Borrower’s actual knowledge, any party to any Material Construction Agreement to which Mortgage Borrower,
or any Affiliate of Mortgage Borrower, is a party, has commenced any action or given or received any notice for the purpose of terminating
any such Material Construction Agreement, and the Material Construction Agreements to which Mortgage Borrower, or any Affiliate of Mortgage
Borrower, is a party are in full force and effect, and the Material Construction Agreements to which Mortgage Borrower, or any Affiliate
of Mortgage Borrower, is a party have not been modified, amended or assigned other than as permitted under this Agreement.
(e) As
of the Closing Date, Mortgage Borrower has obtained signed and effective Trade Contracts (excluding the General Contractor Agreement)
representing not less than (x) seventy percent (70%) of the Hard Costs to be paid under the General Contractor Agreement with respect
to the Building One Component and (y) seventy percent (70%) of the Hard Costs to be paid under the General Contractor Agreement
with respect to the remainder of the Project. To the extent provided to Borrower, or Borrower otherwise has the right to obtain the same,
true, complete and correct copies in all material respects of all sub-contracts entered into by General Contractor or any Affiliate of
General Contractor in connection with the Required Improvements or any other work performed at the Property, each of which is listed
on Schedule IV attached hereto along with (i) the amount of any such contract and (ii) a list of any contract amount
paid prior to closing), have been delivered (or made available via the Data Room) to Administrative Agent.
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(f) All
work at the Property performed to date by or on behalf of Borrower has been paid for and is evidenced by unconditional lien waivers,
other than, as of the Closing Date, amounts as specifically set forth on Schedule XIV and, as of any other date, to the extent
permitted under this Agreement, including if being contested in accordance with Section 7.3.
(g) The
construction of the Required Improvements and the execution, delivery and performance by Mortgage Borrower of its obligations under,
and the consummation of the transactions contemplated by, each of the Material Construction Agreements to which Mortgage Borrower or
any Affiliate of Mortgage Borrower is a party do not (a) violate any Legal Requirement applicable to Mortgage Borrower in any material
respects, (b) result in a breach of any of the terms, conditions or provisions of, or constitute a material default under the organizational
documents of Mortgage Borrower, or any mortgage, indenture, agreement, permit, franchise, license, note or instrument to which Mortgage
Borrower is a party or by which it or any of its properties is bound, or (c) result in the creation or imposition of any mortgage,
lien, charge or encumbrance of any nature whatsoever upon any of the assets of Mortgage Borrower or Borrower (except as contemplated
by this Agreement, the other Loan Documents and by the Mortgage Loan Documents, as applicable).
(h) Operating
Permits. All Operating Permits that have been or are currently required in connection with the valid execution, delivery and performance
by Mortgage Borrower of the Construction Agreements to which Mortgage Borrower is a party and all other agreements and instruments to
be executed by Borrower in connection therewith have been obtained and are in full force and effect.
4.2.2 Plans
and Specifications.
(a) The
anticipated use of the Required Improvements on the Property complies or will comply in all material respects with all Project Documents,
all Legal Requirements, including, without limitation, all requirements and restrictions pursuant to all applicable zoning, environmental,
building, fire, health, and other governmental statutes, ordinances, rules and regulations, as well as the requirements of the appropriate
board of fire underwriters or other such similar body acting for and in the locality in which the Property is located.
(b) Upon
having been duly filed with and approved by all applicable Governmental Authorities in the Commonwealth of Massachusetts, City of Cambridge,
including the Inspectional Services Department, and all other governmental and municipal authorities, agencies and departments whose
approval is required, the Plans and Specifications will comply with and conform in all material respects to the requirements of law.
(c) The
Plans and Specifications comply fully with such Construction Permits.
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(d) Upon
completion of the construction of the Required Improvements in accordance with the Plans and Specifications in all material respects,
all of the construction preconditions will have been met justifying the issuance of (i) a permanent (or temporary) certificate or
certificates of occupancy for the Required Improvements and (ii) such other necessary Operating Permits.
(e) Upon
completion of the construction of the Required Improvements in accordance with the Plans and Specifications in all material respects
and satisfaction of all conditions contained in the Zoning Documents, the Required Improvements will continue to conform in all material
respects to all applicable building codes of the City of Cambridge, Commonwealth of Massachusetts, and with applicable zoning regulations.
(f) Intentionally
Omitted.
4.2.3 Compliance
with Building Codes and Zoning Laws. The current zoning law and declarations covering the Property and the Zoning Documents permit
the construction of the Required Improvements to be completed substantially in accordance with the Plans and Specifications (as the same
are to be updated pursuant to Section 5.8.6) and, upon completion of construction substantially in accordance with the Plans
and Specifications (as the same are to be updated pursuant to Section 5.8.6), the current zoning law and declarations covering
the Property and the Zoning Documents permit the Required Improvements to be operated and used as contemplated by this Agreement and
the other Loan Documents and the Required Improvements will be in compliance, in all material respects, with all applicable zoning, environmental,
and other applicable Legal Requirements, restrictions, requirements and easements then in effect. The Property currently is, and, upon
completion of construction substantially in accordance with the Plans and Specifications (as the same are to be updated pursuant to Section 5.8.6),
the use thereof, will be in all material respects in compliance with all Construction Permits then required and Operating Permits then
required, as applicable, and all other Legal Requirements, and such compliance is not dependent on any land, improvements or facilities
not a part of the Property. There are no pending, or to Borrower’s knowledge, threatened actions, suits or proceedings to revoke,
attach, invalidate, rescind or modify the zoning applicable to the Property or any part thereof, any of the Construction Permits, as
currently existing.
4.2.4 Budget.
To Borrower’s actual knowledge, the Budget contains Borrower’s good faith estimate of all Hard Costs, Soft Costs and any
other costs and expenses reasonably anticipated to be incurred in connection with the development, construction and operation of the
Required Improvements in compliance with the terms of this Agreement and the terms and conditions of the Special Permit (including, without
limitation, the requirements set forth in “Appendix G” of the Application Documents and incorporated into the Special Permit
by reference).
4.3 Intentionally
Omitted.
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4.4 Survival
of Representations. Borrower agrees that all of the representations and warranties of Borrower set forth in Section 4.1
and Section 4.2 and elsewhere in this Agreement and in the other Loan Documents shall be deemed given and made on and as
of the Closing Date (and on and as of the date of each Advance) and survive for so long as any amount remains owing to Administrative
Agent or Lenders under this Agreement or any of the other Loan Documents by Borrower or Guarantor, unless a longer survival period is
expressly stated in a Loan Document with respect to a specific representation or warranty, in which case, for such longer period. All
representations, warranties, covenants and agreements made in this Agreement or in the other Loan Documents by Borrower shall be deemed
to have been relied upon by Administrative Agent and Lenders notwithstanding any investigation heretofore or hereafter made by Administrative
Agent or Lenders on its behalf.
V. BORROWER
COVENANTS.
5.1 General
Covenants. From the Closing Date and until the payment in full of the Debt (other than contingent indemnity obligations), Borrower
hereby covenants and agrees with Administrative Agent and Lenders that:
5.1.1 Business
and Operations. Each of Borrower, Mortgage Borrower and Sole Member shall continue to engage the business presently conducted by
it as and to the extent the same are necessary for the ownership, development, construction, maintenance, renovation, management and
operation of, as applicable, the Property and the Collateral. Borrower will cause Mortgage Borrower to qualify to do business and will
remain in good standing under the laws of Massachusetts as and to the extent the same are required for the ownership, maintenance, management
and operation of the Property.
5.1.2 Change
of Principal Place of Business. Borrower shall not change (and shall not cause or permit Mortgage Borrower to change) its name, identity,
corporate structure, jurisdiction of organization or principal place of business set forth on the first page of this Agreement without
first giving Administrative Agent at least thirty (30) days prior written notice (or any such longer period as may be required pursuant
to the UCC) or reorganize in a different jurisdiction without the prior written consent of Administrative Agent. Borrower shall, and
shall cause each other Borrower Party to, take such action, satisfactory to Administrative Agent, as may be necessary to grant, protect,
perfect and/or preserve the security interest of Administrative Agent hereunder and in the Collateral and the priority of the Pledge
Agreements and Administrative Agent’s interest in such Collateral at all times.
5.1.3 Title
to the Property and the Collateral.
(a) Borrower
will preserve its right, title and interest in and to, and will warrant and defend (i) Borrower’s and Sole Member’s
respective title to the Collateral and (ii) the validity and priority of the Lien of the Pledge Agreements on the respective Collateral,
in each case, against the claims of all Persons whomsoever and subject only to Permitted Encumbrances.
(b) Borrower
will cause Mortgage Borrower to warrant and defend (i) Mortgage Borrower’s title to the Property and every part thereof, subject
only to the Liens expressly permitted under this Agreement and (ii) the validity and priority of the Lien of the Mortgage on the
Property, in each case, against the claims of all Persons whomsoever and subject only to the Permitted Encumbrances.
(c) Borrower
shall not (and shall not cause Mortgage Borrower to) create, incur, assume or suffer any Lien on any portion of the Property or the Collateral
other than the Permitted Encumbrances or as otherwise expressly permitted herein. Borrower shall reimburse Administrative Agent for any
actual out-of-pocket losses, costs, damages or expenses (including reasonable out-of-pocket attorneys’ fees and court costs but
excluding Excluded Liabilities) incurred by Administrative Agent if an interest in the Property, the Collateral, Mortgage Borrower and/or
Borrower, other than as expressly permitted hereunder, is claimed by another Person.
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5.1.4 Existence;
Compliance with Legal Requirements. Borrower shall (and shall cause Mortgage Borrower to) do or cause to be done all things necessary
to preserve, renew and keep in full force and effect its existence, rights, licenses, permits and franchises necessary to comply in all
material respects with all Legal Requirements applicable to it, the Collateral and the Property. There shall never be committed by Borrower
or Mortgage Borrower and Borrower shall not (and shall cause Mortgage Borrower to not) knowingly permit any other Person in occupancy
of or involved with the operation or use of the Property to commit, any act or omission affording the federal government or any state
or local government the right of forfeiture as against the Property, the Collateral or any part thereof or any monies paid in performance
of Borrower’s obligations under any of the Loan Documents. Borrower hereby covenants and agrees not to commit, knowingly permit
or suffer to exist any act or omission affording such right of forfeiture. The foregoing are subject to Borrower’s right to contest
Legal Requirements or the applicability thereof as set forth in Section 7.3 hereof
5.1.5 Handicapped
Access.
(a) Borrower
covenants and agrees that it shall cause Mortgage Borrower to cause each Component after its applicable Component Substantial Completion
to comply in all material respects, or, if applicable, shall use Commercially Reasonable Efforts to cause Tenants to comply, to the extent
applicable, with the requirements of the Americans with Disabilities Act of 1990, the Fair Housing Amendments Act of 1988, all federal,
state and local laws and ordinances related to handicapped access and all rules, regulations, and orders issued pursuant thereto including,
without limitation, the Americans with Disabilities Act Accessibility Guidelines for Buildings and Facilities (collectively, the “Access
Laws”).
(b) Borrower
covenants and agrees to give prompt notice to Administrative Agent of the receipt by Borrower or Mortgage Borrower of any complaints related
to the violation of any Access Laws and of the commencement of any material proceedings or investigations which relate to compliance with
the requirements of any Access Laws.
(c) Notwithstanding
anything to the contrary set forth herein or in any other Loan Document, Borrower shall not cause Mortgage Borrower to alter or cause
or permit to be altered the Property in any manner which would materially increase Borrower’s or Mortgage Borrower’s responsibilities
for compliance with any Access Laws without the prior approval of Administrative Agent. Administrative Agent may condition any such approval
upon receipt of a certificate of compliance with the Access Laws from an architect, engineer, or other Person acceptable to Administrative
Agent.
5.1.6 Use
of Property. Borrower shall cause Mortgage Borrower to cause the Property to be used, operated and maintained in compliance, in all
material respects, with all applicable Legal Requirements concerning zoning and use at all times until the Debt (other than contingent
indemnity obligations) has been repaid in full and Borrower will not cause or permit (or cause Mortgage Borrower to cause or permit) any
non-conforming use applicable to all or any portion of the Property under applicable zoning laws to be discontinued or the non-conforming
Improvement to be abandoned without the express written consent of Administrative Agent.
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5.1.7 No
Joint Assessment. Borrower shall not knowingly suffer, permit or initiate the joint assessment of the Property (a) with any other
real property constituting a tax lot separate from the Property, and (b) which constitutes real property with any portion of the
Property which may be deemed to constitute personal property, or any other action or procedure whereby the lien of any taxes which may
be levied against such personal property shall be assessed or levied or charged to such real property portion of the Property.
5.1.8 No
Further Encumbrances. Borrower shall do, or cause to be done, all things necessary to keep and protect the Property and all portions
thereof unencumbered from any Liens, easements or agreements granting rights in or restricting the use or development of the Property,
except for Permitted Encumbrances or otherwise contemplated under this Agreement.
5.1.9 Partition.
Borrower shall not cause or permit any partition of the Property.
5.1.10 Performance
by Borrower and Mortgage Borrower.
(a) Borrower
shall in a timely manner (x) observe, perform and fulfill each and every covenant, term and provision of each Loan Document executed
and delivered by, or applicable to, Borrower, as applicable, and (y) pay when due all costs, fees and expenses to the extent required,
under the Loan Documents executed and delivered by, or applicable to, Borrower. Borrower shall not enter into or otherwise suffer or permit
any amendment, waiver, supplement, termination or other modification of any Loan Document executed and delivered by, or applicable to,
Borrower without the prior written consent of Administrative Agent.
(b) Borrower
shall cause Mortgage Borrower in a timely manner to (x) observe, perform and fulfill each and every covenant, term and provision
of the Mortgage Loan Document executed and delivered by, or applicable to, Mortgage Borrower, and (y) pay when due all costs, fees
and expenses to the extent required, under the Mortgage Loan Documents executed and delivered by, or applicable to, Mortgage Borrower.
Mortgage Borrower shall not enter into or otherwise suffer or permit any amendment, waiver, supplement, termination or other modification
of the Mortgage Loan Document executed and delivered by, or applicable to, Mortgage Borrower without the prior written consent of Administrative
Agent.
5.1.11 Transfer
Assets. Borrower shall not (and shall not cause or permit Mortgage Borrower or Sole Member to) Transfer any interest in the Property
or the Collateral except, in each case, as may be expressly permitted herein or in the other Loan Documents and the Mortgage Loan Documents.
5.1.12 Distributions.
So long as the Loan or Commitments of the Loan are outstanding, Borrower shall not, and shall not cause or permit Mortgage Borrower to,
make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption,
defeasance, retirement or other acquisition of any equity or ownership interest of Borrower or Mortgage Borrower, whether now or hereafter
outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations
of Borrower; it being agreed by Borrower that in no event shall any proceeds, rents, revenues or other receipts derived from the Property
be distributed to Borrower, Mortgage Borrower, Guarantor or any of their Affiliates before all Obligations of Borrower under the Loan
Documents have been paid in full; provided, however, the provisions of this Section 5.1.12 shall not be deemed
to prohibit, so long as no Event of Default has occurred and is continuing, payments to Affiliate Service Providers under Affiliated Property
Operating Agreements.
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5.1.13 Misapplication
of Funds. Borrower shall not cause or permit Mortgage Borrower to (a) distribute Rents or any other revenue from the Property
or any Proceeds in violation of the provisions of this Agreement or the Mortgage Loan Documents, as applicable, (b) misappropriate
any security deposit or portion thereof, (c) misapply the proceeds of the Loan, (d) misapply the proceeds of the Mortgage Loan,
or (e) misapply any disbursements from the Reserve Accounts or the Mortgage Reserve Accounts.
5.1.14 Debt
Cancellation. Borrower shall not cancel or otherwise forgive or release (nor shall Borrower cause Mortgage Borrower to cancel or otherwise
forgive or release) any material claim or debt owed to it by any Person, except for adequate consideration or in the ordinary course of
its business, or otherwise with Administrative Agent’s approval; provided, however, nothing contained in this Agreement
shall permit Borrower to cause or permit Mortgage Borrower to cancel, forgive or reduce unpaid and past due rents under Leases (except
as expressly set forth in Section 5.1.25).
5.1.15 Litigation.
Borrower shall reasonably cooperate in all respects with Administrative Agent with respect to any proceedings before any court, board
or other Governmental Authority which may in any way affect the rights of Administrative Agent or Lenders hereunder or under any of the
other Loan Documents and, in connection therewith, permit Administrative Agent, at its election, to participate in any such proceedings.
5.1.16 Affiliate
Transactions. Except for (1) the Construction Management Agreement, which has been delivered to Administrative Agent in connection
with the closing of the Loan and (2) the Affiliate Management Agreement, each of which has been delivered to Administrative Agent
in connection with the closing of the Loan, Borrower shall not (and shall not cause or permit Mortgage Borrower to) enter into, or be
a party to, any transaction with any Affiliate of Borrower or any partner, member, or shareholder, as applicable, of Borrower, Mortgage
Borrower or any Affiliate of Borrower or Mortgage Borrower, except in the ordinary course of business and on terms and conditions that
are fully disclosed to and approved by Administrative Agent in advance and that are commercially reasonable and no less favorable to Borrower
or Mortgage Borrower or such Affiliate, partner, member or shareholder than those that would be available on an arm’s-length basis
with an unrelated third party. No such Affiliate transaction approved by Administrative Agent may be terminated, modified or amended without
the prior written consent of Administrative Agent.
5.1.17 Access
to Property. Borrower shall (and shall cause Mortgage Borrower to) permit agents, representatives and employees of Administrative
Agent, Servicer and Construction Consultant to inspect the Property or any part thereof during normal business hours on Business Days
upon reasonable advance notice (subject to the rights of Tenants under Leases) and provided (i) such inspections do not unreasonably
interfere with the operation of the Property and (ii) Borrower shall have the right to have a representative present during such
inspection (provided that Borrower’s failure to have such a representative present shall not prevent Administrative Agent,
Servicer or Construction Consultant or designated representatives from any of them from conducting such inspection).
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5.1.18 Intentionally
Omitted.
5.1.19 Organizational
Documents. Borrower shall not, and shall not cause or permit Sole Member or Mortgage Borrower to, amend, modify or otherwise change
any of its Organizational Documents (other than modifications that are solely ministerial in nature) without Administrative Agent’s
prior written consent in each instance, which consent shall not be unreasonably withheld.
(a) Borrower
shall not issue any additional interests in Borrower not issued prior to the Closing Date. Borrower shall cause Sole Member not to issue
any additional interests in Sole Member not issued prior to the Closing Date. Borrower shall cause Sole Member to cause Mortgage Borrower
not issue any additional interests in Mortgage Borrower not issued prior to the Closing Date.
(b) Borrower
shall not permit or cause the Sole Member to amend or otherwise modify its organizational documents in order to amend or repeal its election
to be governed by Article 8 of the UCC, or any termination or cancellation of the limited liability company membership certificate
evidencing Borrower’s one hundred percent (100%) ownership interest in Sole Member, as delivered to Administrative Agent on the
Closing Date in connection with the Loan Documents. Borrower shall cause Sole Member to not permit or cause Mortgage Borrower to amend
or otherwise modify its organizational documents in order to amend or repeal its election to be governed by Article 8 of the UCC,
or any termination or cancellation of the limited liability company membership certificate evidencing Sole Member’s one hundred
percent (100%) ownership interest in Mortgage Borrower, as delivered to Administrative Agent on the Closing Date in connection with the
Loan Documents.
5.1.20 Material
Service Contracts.
(a) Borrower
shall cause Mortgage Borrower to (i) promptly perform and/or observe in all material respects the covenants, agreements and conditions
required to be performed and observed by it under each Material Service Contract to which Mortgage Borrower is a party, and do all things
necessary to preserve and to keep unimpaired its rights thereunder, (ii) promptly notify Administrative Agent in writing of the giving
of any written notice of any default by any party under any Material Service Contract of which it is aware and (iii) promptly enforce
in all material respects the performance and observance of all of the covenants, agreements and conditions required to be performed and/or
observed by any other party under each Material Service Contract to which Mortgage Borrower is a party in a commercially reasonable manner
as reasonably determined by Mortgage Borrower.
(b) Borrower
shall not, without Administrative Agent’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed:
(i) cause or permit Mortgage Borrower to enter into, surrender or terminate any Material Service Contract to which it is a party
or to which Mortgage Borrower or the Property is subject, provided, that, Mortgage Borrower may terminate any Material Service
Contract if Mortgage Borrower’s right to terminate such Material Service Contract arises out of a default or breach by any other
party to such Material Service Contract (beyond all notice and cure rights), (ii) cause or permit Mortgage Borrower to increase or
consent to the increase of the amount of any charges under any Material Service Contract to which it is a party or to which Mortgage Borrower
or the Property is subject, except as provided therein or on an arm’s-length basis and commercially reasonable terms; or (iii) cause
or permit Mortgage Borrower to otherwise modify, change, supplement, alter or amend, or waive or release any of its rights and remedies
under any Material Service Contract to which it is a party or to which Mortgage Borrower or the Property is subject in any material respect,
except on an arm’s-length basis and commercially reasonable terms.
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5.1.21 Insurance.
(a) Borrower
shall reasonably cooperate in all respects with Administrative Agent in obtaining for Administrative Agent the benefits of any Proceeds
lawfully or equitably payable in connection with the Property, and Administrative Agent shall be reimbursed for any reasonable out-of-pocket
expenses incurred in connection therewith (including, without limitation, reasonable out-of-pocket attorneys’ fees and actual disbursements,
and the payment by Borrower of the out-of-pocket expense of an appraisal (to the extent reasonably necessary to determine if a Total Loss
has occurred) on behalf of Administrative Agent in case of casualty or taking affecting the Property or any part thereof) out of such
Proceeds.
(b) Borrower
shall cause Mortgage Borrower to comply with all Insurance Requirements and shall not bring or keep or permit to be brought or kept any
article upon any portion of the Property or cause or permit any condition to exist thereon which would be prohibited by any Insurance
Requirement, or would invalidate insurance coverage required hereunder to be maintained by Mortgage Borrower on or with respect to any
part of the Property pursuant to Section 6.2.
5.1.22 Taxes
on Security. If there shall be enacted any law (a) deducting the Loan or any portion thereof from the value of the Property or
the Collateral for the purpose of property taxation, (b) affecting any Lien on the Property or the Collateral for the purpose of
property taxation, or (c) changing existing laws of property taxation of mortgages, deeds of trust, security deeds, or debts secured
by real property, or changing the manner of collecting any such taxes, Borrower shall pay to Administrative Agent, upon five (5) Business
Days’ notice, all property and similar taxes for which Administrative Agent is or may be liable as a result thereof; provided,
however, that if such payment would be prohibited by law or would render the Loan or any portion thereof usurious, then instead
of collecting such payment, Administrative Agent may declare all amounts owing under the Loan Documents to be due and payable upon at
least one hundred twenty (120) days prior notice to Borrower. Notwithstanding the foregoing or anything to the contrary, for the avoidance
of doubt, in no event shall Borrower be liable for Excluded Taxes.
5.1.23 After
Acquired Property. Notwithstanding anything to the contrary contained herein, it is expressly acknowledged and agreed that any additional
parcels of land, entitlements, air rights or other development rights, any direct or indirect interest in real property, or any other
similar rights to be acquired by Borrower, Mortgage Borrower or any Affiliate thereof in connection with the Project, or in any way relating
to the Project, shall be acquired solely by Mortgage Borrower and in the name of Mortgage Borrower and shall be mortgaged to Secured Party
and subject to the terms of the Mortgage Loan Documents and shall require the prior written approval of Administrative Agent. In connection
with the foregoing, (i) Borrower agrees to execute, and shall cause Mortgage Borrower to execute, any new documents or instruments
or modifications to the Loan Documents as may be reasonably requested by Administrative Agent to evidence such acquisition (provided
that the same does not increase Borrower’s, Mortgage Borrower’s, Sole Member’s or Guarantor’s liabilities or obligations,
or diminish Borrower’s, Mortgage Borrower’s, Sole Member’s or Guarantor’s rights, under the Loan Documents or
the Mortgage Loan Documents, in either case, from those contemplated thereunder, except to a de minimis extent), (ii) Borrower
shall deliver to Administrative Agent or its counsel such other and further approvals, consents, agreements, opinions, documents and information
as Administrative Agent or its counsel may reasonably request, and (iii) Borrower shall pay or reimburse Administrative Agent for
all title insurance premiums, recording and filing fees, costs of environmental reports, appraisals and other reports, the reasonable
out-of-pocket fees and costs of Administrative Agent’s counsel and all other out-of-pocket third party costs and expenses incurred
in connection with the any such future acquisition.
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5.1.24 Appraisals.
Administrative Agent shall have the right to order new Appraisals of the Property from time to time at Borrower’s expense. Each
Appraisal is subject to review and approval by Administrative Agent. Borrower shall pay to Administrative Agent the reasonable out-of-pocket
cost and expense for such Appraisals and a fee for Administrative Agent’s review of each Appraisal; provided, that, so long
as no Event of Default exists, Borrower shall not be obligated to pay for more than one (1) Appraisal during any twelve (12) month
period, (i) unless such Appraisal is required by Legal Requirements and (ii) except in connection with Appraisals ordered by
Administrative Agent in accordance with any of the other terms of this Agreement (including, without limitation, in connection with the
determination of the Loan-to-Value Ratio under Sections 2.5(b)).
5.1.25 Leases.
(a) All
Major Leases (and any amendment, modification, renewal or extension of any Major Lease, except for amendments and modifications that are
administrative or ministerial in nature) with respect to the Property written or executed after the date hereof shall be subject to the
prior written approval of Administrative Agent, not to be unreasonably withheld conditioned or delayed; and provided that amendments
and modifications to existing Major Leases shall be subject to the Deemed Approval. Borrower shall furnish Administrative Agent with copies
of all Leases and all amendments and modifications to any Leases promptly after the execution thereof
(b) Borrower
(i) shall cause Mortgage Borrower to observe and perform the obligations imposed upon the lessor under the Leases in a commercially
reasonable manner; (ii) shall cause Mortgage Borrower to enforce the terms, covenants and conditions contained in the Leases upon
the part of the lessee thereunder to be observed or performed in a commercially reasonable manner; (iii) shall not cause or permit
Mortgage Borrower to amend, modify or terminate any of the terms, covenants and conditions contained in the Leases (A) so as to decrease
the amount of or payment date for rent, change the expiration date to an earlier expiration date, (B) so as to grant an option to
purchase and/or a right of first refusal to purchase any portion of the Property, (C) to the extent such amendment, modification
or termination would result in such Lease becoming a Major Lease; or (D) so as to grant any option for additional space or term,
materially reduce the obligations of the lessee or materially increase the obligations of lessor in a manner adverse to Borrower, Mortgage
Borrower and/or Administrative Agent, without the prior written approval of Administrative Agent, not to be unreasonably withheld, conditioned
or delayed; (iv) shall not cause or permit Mortgage Borrower to terminate any Lease or accept a surrender by a Tenant under any Lease
without the prior written approval of Administrative Agent, not to be unreasonably withheld, conditioned or delayed in the case of a Lease
that is not a Major Lease (provided that Administrative Agent’s prior written approval shall not be required with respect
to the termination or a surrender of a Lease where the applicable tenant is in monetary default beyond any applicable cure period); (v) shall
not cause or permit Mortgage Borrower to collect any of the rents more than one (1) month in advance (other than security deposits)
without the prior written approval of Administrative Agent, not to be unreasonably withheld, conditioned or delayed, it being agreed that
such reasonable conditions shall include, without limitation, depositing any rents paid prior to the date due into a reserve account held
by Mortgage Administrative Agent as cash collateral as security for the Loan and the Mortgage Loan and released and applied pursuant to
Section 3.2.1(f) when actually due under the terms of the applicable Lease; and (vi) shall not cause or permit Mortgage
Borrower to execute any other assignment of lessor’s interest in the Leases or the Rents. Borrower will promptly after receipt thereof
(or after Mortgage Borrower’s receipt thereof) deliver to Administrative Agent a copy of any written notice received with respect
to any Lease claiming that Mortgage Borrower is in material default in the performance or observance of any of the terms, covenants or
conditions of such Lease.
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(c) Upon
request, Administrative Agent shall execute and deliver to any Tenant under a Major Lease a subordination, non-disturbance and attornment
agreement substantially in the form attached hereto as Exhibit C hereto or in any other form acceptable to Administrative
Agent.
(d) Security
deposits of Tenants under all Leases shall be held in compliance with Legal Requirements and any provisions in Leases relating thereto,
and Borrower shall cause Mortgage Borrower to maintain books and records of sufficient detail to identify all security deposits separate
and apart from any other payments received from Tenants. Subject to Legal Requirements, any letter of credit, bond or other instrument
held by Mortgage Borrower in lieu of cash security shall name Administrative Agent as payee or mortgagee thereunder, subject to the rights
of Mortgage Administrative Agent under the Mortgage Loan Documents, or be fully assignable to Administrative Agent, subject the satisfactory
of certain reasonable and customary administrative and/or ministerial conditions. To the extent permitted by Legal Requirements, subject
to the rights of Mortgage Administrative Agent under the Mortgage Loan Documents, Borrower hereby pledges to Administrative Agent each
such letter of credit, bond or other instrument as security for the Obligations. Upon the occurrence and during the continuance of an
Event of Default, subject to the rights of Mortgage Administrative Agent under the Mortgage Loan Documents, to the extent permitted by
Legal Requirements, Borrower shall deposit with Administrative Agent an amount equal to the aggregate security deposits of the Tenants
(and any interest theretofore earned on such security deposits received by Borrower or Mortgage Borrower), and any such letters of credit,
bonds or other instruments that Mortgage Borrower shall not have returned to the applicable Tenants or applied in accordance with the
terms of the applicable Lease.
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(e) All
agreements entered into by or on behalf of Mortgage Borrower that require payment of leasing commissions or other similar compensation
to any party shall be subordinate to the lien of the Mortgage or shall otherwise be subject to specific provisions to be reasonably agreed
by Administrative Agent and the party to whom such leasing commissions is to be paid.
(f) Without
the prior written approval of Administrative Agent, (i) neither Borrower, Mortgage Borrower nor any other Borrower Party shall enter
into any Lease for all or any portion of the Property or any offsite property that will be used in connection with marketing all or any
portion of the Project; and (ii) Borrower shall not cause or permit Mortgage Borrower to lease any space at the Property to itself
or any other Borrower Party, provided that any such lease approved by Administrative Agent pursuant to clause (i) or
(ii) in this clause (f) shall only be used in connection with the marketing of all or any portion of the Project.
In connection with Administrative Agent’s approval of any Lease at any off-site premises that will be used in connection with marketing
all or any portion of the Project entered into following the date hereof, Borrower shall deliver to Administrative Agent a non-disturbance
and attornment agreement from the landlord under such lease and, to the extent applicable, a subordination, non-disturbance and attornment
agreement from the mortgagee of such landlord, in each case, in form and substance reasonably acceptable to Administrative Agent.
5.1.26 Estoppel
Statement.
(a) Borrower
shall, from time to time, within ten (10) Business Days following written request from Administrative Agent, execute, acknowledge
and deliver to Administrative Agent, an Officer’s Certificate (i) stating that this Agreement and the other Loan Documents
are unmodified and in full force and effect (or, if there have been modifications, that this Agreement and the other Loan Documents are
in full force and effect as modified and setting forth such modifications), (ii) stating the amount of accrued and unpaid interest
under the Loan Documents, the outstanding Principal Amount, the Maximum Loan Amount and the aggregate principal amount outstanding under
all loans made pursuant to the Loan Documents and (iii) containing such other information with respect to Borrower, Mortgage Borrower,
Sole Member, the Property and the Loan as Administrative Agent shall reasonably request, which as to this clause (iii) only,
may be stated to Borrower’s actual knowledge where applicable. The estoppel certificate shall also state either that, to Borrower’s
actual knowledge, no Default or Event of Default exists hereunder or, if any Default or Event of Default shall exist hereunder, specify
such Default or Event of Default and the steps being taken to cure such Default or Event of Default. Except during the continuance of
an Event of Default, Borrower shall not be required to provide such Officer’s Certificate more frequently than on two (2) occasions
in any calendar year.
(b) Borrower
shall, from time to time, within ten (10) Business Days’ following written request from Administrative Agent, execute, acknowledge
and deliver to Administrative Agent, an Officer’s Certificate (i) stating that the Mortgage Loan Documents are unmodified and
in full force and effect (or, if there have been modifications, that the Mortgage Loan Documents are in full force and effect as modified
and setting forth such modifications), (ii) stating the amount of accrued and unpaid interest under the Mortgage Loan Documents,
the outstanding principal amount of the Mortgage Loan and the maximum Mortgage Loan amount and (iii) containing such other information
with respect to Mortgage Borrower and the Mortgage Loan as Administrative Agent shall reasonably request. The estoppel certificate shall
also state either that no default or event of default under the Mortgage Loan exists or, if any such default or event of default shall
exist, specify such default or event of default and the steps being taken to cure same. Except during the continuance of an Event of Default,
Borrower shall not be required to provide such Officer’s Certificate more frequently than on two (2) occasions in any calendar
year.
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(c) Intentionally
omitted.
(d) Administrative
Agent shall, from time to time, within ten (10) Business Days following written request from Borrower, execute, acknowledge and deliver
to Borrower, a certificate executed by an authorized officer of Administrative Agent (i) stating that this Agreement and the other
Loan Documents are unmodified and in full force and effect (or, if there have been modifications, that this Agreement and the other Loan
Documents are in full force and effect as modified and setting forth such modifications), (ii) stating the amount of accrued and
unpaid interest, the Principal Amount, the Maximum Loan Amount, the aggregate principal amount outstanding under all loans made pursuant
to the Loan Documents and (iii) containing such other information with respect to the Loan as Borrower shall reasonably request.
The estoppel certificate shall also state whether Administrative Agent has delivered to Borrower any notice of a Default or Event of Default.
(e) Borrower
shall use Commercially Reasonable Efforts to deliver to Administrative Agent, or cause to be delivered to Administrative Agent, within
ten (10) Business Days (or such longer period as is expressly provided for under the applicable Property Operating Agreements) following
Administrative Agent’s written request, estoppel certificates from each party to a Property Operating Agreement in form and substance
reasonably acceptable to Administrative Agent. Except during the continuance of an Event of Default, Borrower shall not be required to
request such certificate more frequently than on one (1) occasion in any calendar year.
(f) Borrower
shall use Commercially Reasonable Efforts to deliver to Administrative Agent, or cause to be delivered to Administrative Agent, within
ten (10) Business Days (or such longer period as is expressly provided for under the Zoning Documents) following Administrative Agent’s
written request, estoppel certificates from each party to a Zoning Document in form and substance reasonably acceptable to Administrative
Agent. Except during the continuance of an Event of Default, Borrower shall not be required to request such certificate more frequently
than on one (1) occasion in any calendar year.
(g) Intentionally
omitted.
(h) Borrower
shall use Commercially Reasonable Efforts to deliver to Administrative Agent, or cause to be delivered to Administrative Agent, within
ten (10) Business Days (or such longer period as is expressly provided for under the applicable Lease) following Administrative Agent’s
written request, estoppel certificates from each Tenant or other party to a Lease in form and substance reasonably acceptable to Administrative
Agent. Except during the continuance of an Event of Default, Borrower shall not be required to request such certificate more frequently
than on one (1) occasion in any calendar year.
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(i) Borrower
shall use Commercially Reasonable Efforts to deliver to Administrative Agent, or cause to be delivered to Administrative Agent, within
ten (10) Business Days (or such longer period as is expressly provided for under the applicable REA) following Administrative Agent’s
written request, estoppel certificates from each party to any REA in form and substance reasonably acceptable to Administrative Agent.
Except during the continuance of an Event of Default, Borrower shall not be required to request such certificate more frequently than
on one (1) occasion in any calendar year.
5.1.27 Additional
Reports. Borrower shall deliver to Administrative Agent as soon as available, but in no event later than thirty (30) days after such
items become available to Borrower in final form, copies of any final engineering, environmental or seismic reports prepared for Borrower
or Mortgage Borrower with respect to the Property.
5.1.28 Patriot
Act Compliance.
(a) Borrower
shall (and shall cause each Borrower Party and each of their direct or indirect owners to) comply with the Patriot Act and all applicable
requirements of Governmental Authorities having jurisdiction over Borrower, Mortgage Borrower, the Collateral and/or the Property relating
to terrorism and money laundering. None of Borrower, any Borrower Party or, to Borrower’s actual knowledge, any Person holding a
direct or indirect interest in, or Control with respect to, Borrower or any Borrower Party shall (a) be or become subject at any
time to any law, regulation, or list of any Governmental Authority (including, without limitation, the U.S. Office of Foreign Asset Control
list) that prohibits or limits the Lenders from making any advance or extension of credit to Borrower or from otherwise conducting business
with Borrower, or (b) to fail to provide documentary and other evidence of such Person’s identity as may be requested by Administrative
Agent or any Lender at any time to enable Administrative Agent or such Lender to verify Borrower’s identity or to comply with any
applicable law or regulation, including, without limitation, Section 326 of the USA Patriot Act of 2001, 31 U.S.C. Section 5318.
Administrative Agent shall have the right to audit such Person’s compliance with the Patriot Act and all applicable requirements
of Governmental Authorities having jurisdiction over Borrower, Mortgage Borrower, the Collateral and/or the Property relating to terrorism
and money laundering. In the event that Borrower, any Borrower Party or any Person holding a direct or indirect interest in Borrower or
any Borrower Party fails to comply with the Patriot Act or any such requirements of Governmental Authorities, Administrative Agent may,
at its option, cause such Person to comply therewith. All reasonable out-of-pocket costs and expenses incurred by Administrative Agent
in connection therewith shall be paid by Borrower to Administrative Agent, within ten (10) days after demand, with interest at the
Default Rate from and after such ten (10) day period to and including the date the reimbursement payment is received by Administrative
Agent. All such indebtedness shall be secured by the Pledge Agreements.
(b) Without
limiting the foregoing provisions of this Section 5.1.28, Borrower shall deliver to Administrative Agent from time to time,
within ten (10) Business Days’ following written request by Administrative Agent to Borrower, a disclosure of all Persons owning
any direct or indirect equity ownership interests in Borrower (other than any non-Controlling limited partner in Guarantor or IQHQ Holdings,
LP that does not own equal to, or in excess of, the Ownership Threshold, of the direct or indirect ownership interests in any Borrower
Party, but only so long as Borrower has delivered to Administrative Agent an updated “AML letter” in the same form and substance
as the “AML letter” delivered by Borrower to Administrative Agent in connection with the Closing of the Loan), whether or
not such Person owned any direct or indirect equity ownership interest in Borrower as of the Closing Date or any later date upon which
Borrower makes a disclosure pursuant to this sentence. Each disclosure made by Borrower in accordance with the immediately preceding sentence
shall satisfy Administrative Agent’s and each Lender’s customary and reasonable anti-money laundering and OFAC searches and
“know your customer” requirements with respect to such Person (and Borrower shall be responsible for Administrative Agent’s
and Lenders’ reasonable out-of-pocket costs and expenses in connection therewith).
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5.1.29 ERISA.
(a) Borrower
shall not (and shall not cause or permit Sole Member or Mortgage Borrower to: (i) engage in any transaction which would, to Borrower’s
actual knowledge, cause any obligation, or any action taken or to be taken, hereunder or under the other Loan Documents (or the exercise
by Administrative Agent of any of its rights under this Agreement or the other Loan Documents) to be a non-exempt (under a statutory or
administrative class exemption) prohibited transaction under ERISA (provided that this obligation is subject to the assumption
that the assets used to fund the Loan are not plan assets for purposes of ERISA) or (ii) maintain or incur any obligation to contribute
to a Plan.
(b) Borrower
shall deliver to Administrative Agent such certifications or other evidence from time to time until the Debt has been repaid in full,
as reasonably requested by Administrative Agent, that (i) Borrower is not an “employee benefit plan” as defined in Section 3(3) of
ERISA, which is subject to Title I of ERISA, a “plan” under as defined in Section 4975(e)(1) of the Code which is
subject to Section 4975 of the Code, or a “governmental plan” within the meaning of Section 3(32) of ERISA; (ii) Borrower
is not in violation of any state statute regulating investments of, or fiduciary obligations with respect to, governmental plans; and
(iii) one (1) or more of the following circumstances is true:
(i) equity
interests in Borrower are publicly offered securities, within the meaning of 29 C.F.R. §2510.3-101(b)(2);
(ii) less
than twenty-five percent (25%) of each outstanding class of equity interests in Borrower is held by “benefit plan investors”
within the meaning of 29 C.F.R. §2510.3-101(f)(2); or
(iii) Borrower
qualifies as an “operating company” or a “real estate operating company” within the meaning of 29 C.F.R. §2510.3-101(c) or
(e).
(c) Borrower
shall deliver (or shall cause to be delivered) to Administrative Agent promptly, and in any event within ten (10) Business Days after
receipt thereof by any Borrower Party, Manager or any ERISA Affiliate (each, an “Employer”) from a Multiemployer Plan
or sponsor of a Multiemployer Plan, a copy of each notice received by any such Employer concerning (i) the imposition of Withdrawal
Liability by a Multiemployer Plan or any other Liability under Title IV of ERISA, (ii) the determination that a Multiemployer Plan
is, or is expected to be, insolvent within the meaning of Title IV of ERISA, (iii) the termination of a Multiemployer Plan within
the meaning of Title IV of ERISA, or (iv) the amount of liability incurred by each Employer in connection with any event described
in clause (i), (ii) or (iii) above. In connection with any such notice, Borrower shall (and shall cause
each such other Employer to) consult with Administrative Agent in formulating any response to any such notice and shall take (or shall
cause to be taken) all steps reasonably requested by Administrative Agent that would reasonably be expected to result in minimizing any
such liability (including any Withdrawal Liability).
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(d) Borrower
shall not (and shall cause each other Borrower Party not to) take any action that could reasonably be expected to result in material Labor
Liability. Borrower shall deliver notice to Administrative Agent promptly, and in any event within five (5) Business Days, of the
recognition or withdrawal of recognition of any labor union as the representative of employees employed by any Borrower Party, Manager,
or any Affiliate of the foregoing in connection with the operation, development, or construction of the Property.
5.1.30 Prohibited
Person; Sanctions.
(a) At
all times until the Debt (other than contingent indemnity obligations) has been repaid in full, including after giving effect to any Transfers
permitted pursuant to the Loan Documents, (a) none of the funds or other assets of Borrower, Mortgage Borrower, Sole Member or Guarantor
shall constitute property of, or shall be beneficially owned, directly or indirectly, by any Prohibited Person, with the result that the
investment in Borrower, Mortgage Borrower, Sole Member or Guarantor, as applicable (whether directly or indirectly), would be prohibited
by law, or the Loan made by Administrative Agent would be in violation of law, (b) no Prohibited Person shall have any interest of
any nature whatsoever in Borrower, Mortgage Borrower, Sole Member or Guarantor, as applicable, with the result that the investment in
Borrower, Mortgage Borrower, Sole Member or Guarantor, as applicable (whether directly or indirectly), would be prohibited by law or the
Loan would be in violation of law, and (c) none of the funds of Borrower, Mortgage Borrower, Sole Member or Guarantor, as applicable,
shall be derived from any unlawful activity with the result that the Loan and the transactions contemplated under the Loan Documents would
be in violation of law.
(b) None
of Borrower, Mortgage Borrower, Sole Member, Guarantor or any of their respective Affiliates shall use any proceeds of the Loan, or lend,
contribute or otherwise make available such proceeds (i) to fund or facilitate any activities of or business with any Person that,
at the time of such funding or facilitation, is the subject or target of Sanctions, with the result that the Loan and the transactions
contemplated under the Loan Documents would violate any Legal Requirements or Sanctions (ii) to fund or facilitate any activities
of or business in any Sanctioned Country (which, as of the Closing Date, includes the Crimea Region of Ukraine, Cuba, Iran, North
Korea, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, and Syria) or (iii) in any other
manner that will result in a violation by any party to the Loan Documents of Sanctions.
5.1.31 Licenses;
Intellectual Property.
(a) Without
limiting the other provisions of this Agreement and the other Loan Documents, Borrower shall cause Mortgage Borrower to keep all material
Licenses, or shall use Commercially Reasonable Efforts to cause the applicable party to keep, such material Licenses in full force and
effect and, during the continuance of an Event of Default, to the extent permitted by Legal Requirements and any Management Agreement,
Borrower will, at the cost of Borrower, (but subject to the rights of Mortgage Administrative Agent under the Mortgage Loan Documents)
and without expense to Secured Party, execute, acknowledge and deliver all such writings and take any all further actions necessary or
reasonably requested by Administrative Agent to transfer any Licenses with respect to the Property into the name of Secured Party or its
designee. To the extent any such Licenses cannot be so transferred to Secured Party or its designee under applicable law, Borrower shall
cause Mortgage Borrower to continue to hold and maintain such Licenses in full force and effect for the benefit of Secured Party until
such time as Secured Party can obtain such License in its own name or the name of a designee. Without limiting the foregoing, Borrower
shall cause Mortgage Borrower to execute such interim management, leasing or other agreements (which shall be in form and substance reasonably
satisfactory to Secured Party and the applicable licensing authorities) as may be required for Secured Party to continue operations at
the Property pursuant to such Licenses until such Licenses are transferred to, or are otherwise obtained by, Secured Party or its designee.
Borrower constitutes and appoints Administrative Agent its true and lawful attorney-in-fact with full power of substitution to, during
the continuance of an Event of Default, complete or undertake any action required of Borrower under this Section 5.1.31(a) in
the name of Borrower in the event Borrower fails to do the same.
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(b) Borrower
shall cause Mortgage Borrower to keep and maintain all material Intellectual Property relating to the use or operation of the Property
and all material Intellectual Property (other than any Intellectual Property used by Mortgage Borrower pursuant to any Management Agreement
entered into in accordance with the applicable terms and conditions hereof) shall be held by and (if applicable) registered in the name
of Mortgage Borrower. Borrower shall not cause or permit Mortgage Borrower to transfer or let lapse any material Intellectual Property
without Administrative Agent’s prior consent, not to be unreasonably withheld, conditioned or delayed. Any website with respect
to the Property (other than Tenant websites) shall be maintained by or on behalf of Mortgage Borrower and any such web site shall be registered
in the name of Mortgage Borrower unless as otherwise registered pursuant to any Management Agreement. Borrower shall not cause or permit
Mortgage Borrower to transfer any such website without Administrative Agent’s prior consent, not to be unreasonably withheld, conditioned
or delayed.
5.1.32 REAs.
Borrower shall (i) cause Mortgage Borrower to promptly perform and/or observe, in all material respects, all of the material covenants
and agreements required to be performed and observed by Mortgage Borrower under the REAs and do all things necessary to preserve and to
keep unimpaired Borrower’s rights thereunder; (ii) promptly notify Administrative Agent of any material default after applicable
notice, grace and/or cure periods under the REAs of which it is actually aware; (iii) promptly deliver to Administrative Agent a
copy of each default notices received by Mortgage Borrower under the REAs; (iv) cause Mortgage Borrower to enforce the performance
and observance of all of the covenants and agreements required to be performed and/or observed under the REAs in a commercially reasonable
manner; (v) cause the Property to be operated, in all material respects, in accordance with the REAs; and (vi) not, without
the prior written consent of Administrative Agent (not to be unreasonably withheld, conditioned or delayed), cause Mortgage Borrower to
(A) enter into any new REA or replace or execute material modifications to any existing REA or renew or extend the same (exclusive
of, in each case, any automatic renewal or extension in accordance with its terms), (B) surrender, terminate or cancel the REAs,
(C) materially reduce or consent to the material reduction of the term of the REAs, (D) materially increase or consent to the
material increase of the amount of any charges payable by Borrower under the REAs, (E) otherwise modify, change, supplement, alter
or amend, or waive or release any of Mortgage Borrower’s rights and remedies under, the REAs in any material respect or (F) following
the occurrence and during the continuance of an Event of Default, exercise any rights, make any decisions, grant any approvals or otherwise
take any action under the REAs.
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5.1.33 Owner’s
Title Policy. Borrower shall cause (i) Mortgage Borrower to pay to Mortgage Lender all amounts payable to Mortgage Borrower and
actually received by Mortgage Borrower under the Owner’s Title Policy with respect to the Property and (ii) shall not amend
or modify the Owner’s Title Policy without Administrative Agent’s and Mortgage Administrative Agent’s prior written
consent.
5.2 TRS
Option. Administrative Agent shall cooperate in good faith with any request (collectively, “TRS Requests”) made
by Borrower (i) for Borrower, Mortgage Borrower or any of Borrower’s or Mortgage Borrower’s Affiliates to enter into
any agreements and (ii) if applicable, to modify the Loan Documents to cause Borrower, Mortgage Borrower or Borrower’s or Mortgage
Borrower’s Affiliates to qualify or continue to qualify as a “real estate investment trust” within the meaning of Sections
856 et seq. of the Tax Code and applicable regulations relating thereto (a “REIT”), including, without limitation,
entering into, amending or modifying one or more taxable REIT subsidiary leases or other agreements; provided (i) Administrative
Agent shall not be bound to agree to any TRS Requests, it being agreed that any accommodation to Borrower in respect thereof shall be
made in the sole, good faith, discretion of Administrative Agent, which may be conditioned upon the satisfaction of such conditions as
Administrative Agent shall require, including, without limitation, updated title policies, legal opinions and guaranties and (ii) all
out-of-pocket costs and expenses incurred by Administrative Agent and the Lenders in connection with any TRS Request, including without
limitation, attorneys’ fees and expenses, shall be paid by Borrower.
5.3 Zoning
and Entitlements.
(a) Borrower
shall cause Mortgage Borrower to use the Property and improve the Property in a manner consistent with all zoning and building code regulations
and the Zoning Documents and not cause or permit Mortgage Borrower to make any use of the Property or construct any Improvements thereon
that violate such regulations in any material respect;
(b) Borrower
shall not knowingly suffer or aid and abet any Tenant, sub-lessee, occupant or person or entity claiming by or through Mortgage Borrower
to materially violate or maintain a material violation of any zoning or building code regulation and in furtherance thereof, Borrower
shall promptly take such steps as shall be commercially reasonable and appropriate to resolve such violation including, but not limited
to, a suit in equity, at its sole cost and expense, to cause the cessation thereof;
(c) Subject
to Borrower’s rights pursuant to Section 7.3, Borrower shall cause Mortgage Borrower to use Commercially Reasonable
Efforts to promptly remove, by payment or agreed resolution, any code enforcement, nuisance abatement or unsafe structures lien that shall
apply to the Property or any Improvements thereon and to cure all notices of material violations with respect to the Property;
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(d) Borrower
shall cause Mortgage Borrower to enforce its material rights under the Zoning Documents against any other party thereto in a commercially
reasonable manner. Subject to Borrower’s rights pursuant to Section 7.3, Borrower shall cause Mortgage Borrower to pay
all charges and other sums required to be paid by Mortgage Borrower pursuant to the terms of the Zoning Documents;
(e) Except
as contemplated by this Agreement, without the prior written consent of Administrative Agent, Borrower shall not cause or permit Mortgage
Borrower to (i) initiate or consent to any zoning reclassification of any portion of the Property, (ii) seek any variance under
any existing zoning ordinance that could result in the use of the Property becoming a non-conforming use under any zoning ordinance or
any other applicable land use law, rule or regulation, (iii) allow any portion of the Property to be used in any manner that
could result in the use of the Property becoming a non-conforming use under any zoning ordinance or any other applicable land use law,
rule or regulation, or (iv) make any application for discretionary approval of any matter impacting the zoning or land use status
of the Property;
(f) Borrower
shall not cause or permit Mortgage Borrower to terminate, cancel, forfeit, reject, surrender (or suffer or permit the termination, cancellation,
forfeiture, rejection, or surrender of) the Zoning Documents without, in each instance, Administrative Agent’s prior written consent,
not to be unreasonably withheld. Borrower shall not (and shall not permit Mortgage Borrower to) (1) amend, modify, restate, replace,
supplement or otherwise change (or suffer or permit the amendment, modification, restatement, replacement, supplement or other change
of) the Zoning Documents, in any material respect, or (2) waive or release any of its material rights and remedies under any Zoning
Documents, without, in each instance, Administrative Agent’s prior written consent, not to be unreasonably withheld. Consent to
one amendment, modification, restatement, replacement, supplement or other change shall not be deemed to be a waiver of the right of Administrative
Agent’s to require consent to other, future or successive amendments, modifications, restatements, replacements, supplements or
other changes;
(g) Borrower
shall cause Mortgage Borrower to (i) perform and observe in all material respects all of the terms, covenants and conditions required
to be performed and observed by Mortgage Borrower pursuant to the terms of the Zoning Documents, (ii) take all actions as are necessary
from time to time to preserve and maintain the Zoning Documents in accordance with all applicable Legal Requirements in all material respects
and (iii) promptly furnish to Administrative Agent any written notice of default received by Mortgage Borrower in connection with
the Zoning Documents from any party to the Zoning Documents.
(h) If
Administrative Agent or its nominee, designee, successor, or assignee acquires title and/or rights of Mortgage Borrower under the Zoning
Documents by reason of foreclosure of the Mortgage or a Pledge Agreement, assignment in lieu of foreclosure or otherwise, Administrative
Agent or such other party shall (i) succeed to all of the rights of and benefits accruing to Mortgage Borrower under the Zoning Documents,
and (ii) be entitled to exercise all of the rights and benefits accruing to Mortgage Borrower under the Zoning Documents.
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(i) Borrower
agrees to execute and deliver to Administrative Agent such documents as Administrative Agent and its counsel may reasonably require in
order to ensure that the provisions of this Section 5.3 will be validly and legally enforceable and effective against Borrower
and all parties claiming by, through, under or against Borrower (subject to laws relating to creditors’ rights and principles of
equity), provided that the same does not increase Borrower’s, Sole Member’s, Mortgage Borrower’s or Guarantor’s
liabilities or obligations, or diminish Borrower’s, Sole Member’s. Mortgage Borrower’s or Guarantor’s rights,
under the Loan Documents, in either case, from those contemplated thereunder, except to a de minimis extent.
5.4 Property
Operating Agreements.
5.4.1 Generally.
(a) Borrower
hereby covenants and agrees that any development, construction management, project management, property management, parking management,
leasing brokerage or other marketing agreement entered into by Mortgage Borrower with respect to any Component or any other portion of
the Property shall be with a Qualified Operator and otherwise in accordance with the terms and conditions of this Agreement, and prior
to (or concurrently with) Mortgage Borrower entering into any such agreement, Borrower shall (or shall cause Mortgage Borrower to) deliver
to Administrative Agent an Consent of Property Operating Agreement in accordance with the terms hereof (it being agreed that such Consent
of Property Operating Agreement shall be a “Loan Document”). In the event that Mortgage Borrower enters into any replacement
Property Operating Agreement, as a condition to the effectiveness thereof, (i) a fully executed original of such Consent of Property
Operating Agreement shall be delivered to Administrative Agent, and (ii) Borrower shall have delivered a certified true, correct
and complete copy of the applicable final executed Consent of Property Operating Agreement in the form approved by Administrative Agent
in accordance with this Agreement and any other documentation, certificates or information as Administrative Agent may reasonably request
in connection with the foregoing (provided Borrower shall be permitted to redact any information included in a Property Operating Agreement
which pertains exclusively to properties other than the Property);
(b) To
the extent a Property Operating Agreement is in place governing any Component or any other portion of the Property, Borrower shall not
cause or permit Mortgage Borrower to terminate, cancel, forfeit, reject, surrender (or suffer or permit the termination, cancellation,
forfeiture, rejection, or surrender of) the Property Operating Agreement without, in each instance, Administrative Agent’s prior
written consent, not be unreasonably withheld, conditioned or delayed; provided no such approval shall be required with respect
to any Affiliated Property Operating Agreement so long as another Property Operating Agreement is in place with respect to such applicable
Component and with respect to substantially the same services in all material respects provided by such applicable Affiliated Property
Operating Agreement. Borrower shall not cause or permit Mortgage Borrower to (i) enter into, amend, modify, restate, replace, supplement
or otherwise change (or suffer or permit the entering into, amendment, modification, restatement, replacement, supplement or other change
of) any Property Operating Agreement without, in each instance, Administrative Agent’s prior written consent, which consent shall
not be unreasonably withheld, conditioned or delayed; provided that, notwithstanding anything else to the contrary herein, with
respect to any Affiliated Property Operating Agreement, Administrative Agent may withhold, condition or delay consent in its sole and
absolute discretion; or (ii) otherwise modify, waive or release any of its rights and remedies under any Property Operating Agreement
to which it is a party or to which Mortgage Borrower or the Property is subject in any material respect, except on an arm’s-length
basis and commercially reasonable terms. Consent to one amendment, modification, restatement, replacement, supplement or other change
shall not be deemed to be a waiver of the right of Administrative Agent’s to require consent to other, future or successive amendments,
modifications, restatements, replacements, supplements or other changes;
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(c) Borrower
shall, at its sole expense, cause Mortgage Borrower to (i) promptly perform and/or observe in all material respects (and cause each
of Borrower’s Affiliates to promptly perform and/or observe) the covenants, agreements and conditions required to be performed and
observed by Mortgage Borrower under each Property Operating Agreement, and do all things necessary to preserve and to keep unimpaired
Mortgage Borrower’s rights thereunder, (ii) promptly enforce the performance and observance in all material respects of all
of the covenants, agreements and conditions required to be performed and/or observed by any other party under each Property Operating
Agreement in all material respects, and (iii) take all actions as are necessary from time to time to preserve and maintain each Property
Operating Agreement in accordance with all Legal Requirements;
(d) Administrative
Agent shall have the right to cause Borrower to cause Mortgage Borrower to terminate any Property Operating Agreement and replace the
applicable counterparty thereunder with a Qualified Operator that is not an Affiliate of Borrower or Mortgage Borrower and is otherwise
satisfactory to Administrative Agent, if any of the following shall occur: (i) such counterparty commits fraud, gross negligence
or willful misconduct in connection with the Property, (ii) such counterparty is in default of its obligations under the applicable
Property Operating Agreement beyond applicable notice, grace and/or cure periods, (iii) an Event of Default has occurred and is continuing,
or (iv) a Bankruptcy Action shall occur with respect to the applicable counterparty. Borrower shall have the right to cause Mortgage
Borrower to terminate the Property Operating Agreement in accordance with its terms, provided that: (A) Borrower shall provide
Administrative Agent prior written notice of such termination, (B) following such termination, Borrower shall cause Mortgage Borrower
to engage a Qualified Operator pursuant to a Property Operating Agreement that complies with the terms hereof and is otherwise in a form
reasonably satisfactory to Administrative Agent, and (C) such Qualified Operator, Borrower and Mortgage Borrower execute and deliver
to Administrative Agent a Consent of Property Operating Agreement.
(e) Borrower
shall promptly furnish to Administrative Agent any written notice of default received by Borrower or Mortgage Borrower in connection with
any Property Operating Agreement from any party to such Property Operating Agreement;
(f) If
Administrative Agent or its nominee, designee, successor, or assignee acquires title and/or rights of Mortgage Borrower under any Property
Operating Agreement by reason of foreclosure of the Mortgage or a Pledge Agreement, assignment in lieu of foreclosure or otherwise, Administrative
Agent or such other party designated by Administrative Agent shall, subject to the terms of any applicable Assignment of Property Operating
Agreement, (i) succeed to all of the rights of and benefits accruing to Mortgage Borrower under the applicable Property Operating
Agreement, and (ii) be entitled to exercise all of the rights and benefits accruing to Mortgage Borrower thereunder; and
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(g) Borrower
agrees to execute and deliver to Administrative Agent such documents as Administrative Agent and its counsel may reasonably require in
order to ensure that the provisions of this Section 5.4 will be validly and legally enforceable and effective against Borrower
and all parties claiming by, through, under or against Borrower (subject to laws relating to creditors’ rights and principles of
equity), provided that the same does not increase Borrower’s, Sole Member’s, Mortgage Borrower’s or Guarantor’s
liabilities or obligations, or diminish Borrower’s. Sole Member’s, Mortgage Borrower’s or Guarantor’s rights,
under the Loan Documents, in either case, from those contemplated thereunder, except to a de minimis extent.
5.4.2 Construction
Management Agreement.
(a) At
all times until Completion of the Project, the Construction Management Agreement, or any replacement thereof entered into in accordance
with the provisions of this Agreement, shall remain in full force and effect. Any Construction Management Agreement shall be subordinate
to the Lien of the Mortgage and all of Administrative Agent’s and Lenders’ rights with respect to the Property.
(b) So
long as (i) no Event of Default has occurred and is continuing, (ii) the Construction Management Agreement remains in full force
and effect, (iii) Construction Manager has not committed fraud, gross negligence or willful misconduct, (iv) Construction Manager
is not in default of any of Construction Manager’s obligations under the Construction Management Agreement beyond any applicable
notice, grace and/or cure periods and (v) Construction Manager is not the subject of a Bankruptcy Action, then Borrower may cause
Mortgage Borrower to make payments to Construction Manager of the fees due to Construction Manager pursuant to the terms of the Construction
Management Agreement and the Budget, as and when such fees are due and payable to Construction Manager.
(c) In
no event shall the fees payable to Construction Manager exceed $300,000 per month.
5.4.3 Project
Management Agreement.
(a) At
all times until Completion of the Project, a Project Management Agreement, or any replacement thereof, entered into in accordance with
the provisions of this Agreement, shall remain in full force and effect with respect to each Component that has not been Completed. Any
Project Management Agreement shall be subordinate to the Lien of the Mortgage and all of Administrative Agent’s and Lenders’
rights with respect to the Collateral and the Property, as provided in the applicable Assignment of Project Management Agreement.
(b) So
long as (i) no Event of Default has occurred and is continuing, (ii) the Project Management Agreement remains in full force
and effect, (iii) Project Manager has not committed fraud, gross negligence or willful misconduct, (iv) Project Manager is not
in default of any of Project Manager’s obligations under the Project Management Agreement beyond applicable notice, grace and/or
cure periods and (v) Project Manager is not the subject of a Bankruptcy Action, then Borrower may cause Mortgage Borrower to make
payments to Project Manager of the fees due to Project Manager pursuant to the terms of the Project Management Agreement and the Budget,
as and when such fees are due and payable to Project Manager.
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(c) In
no event shall the fees payable to Project Manager exceed those set forth in the Budget.
5.5 Further
Assurances.
(a) Borrower
shall execute and acknowledge (or cause to be executed and acknowledged) and deliver to Administrative Agent all documents, and take all
actions, reasonably required by Administrative Agent from time to time to confirm the rights created or now or hereafter intended to be
created under this Agreement and the other Loan Documents and any security interest created or purported to be created thereunder, to
protect and further the validity, priority and enforceability of this Agreement and the other Loan Documents, to subject to the Loan Documents
any property of Borrower intended by the terms of any one or more of the Loan Documents to be encumbered by the Loan Documents, or otherwise
carry out the purposes of the Loan Documents and the transactions contemplated thereunder, provided that the same does not increase
Borrower’s, Sole Member’s, Mortgage Borrower’s or Guarantor’s liabilities or obligations, or diminish Borrower’s,
Sole Member’s, Mortgage Borrower’s or Guarantor’s rights, under the Loan Documents, in either case, from those contemplated
thereunder, except to a de minimis extent.
(b) In
addition, Borrower shall, at Borrower’s sole cost and expense,
(i) furnish
to Administrative Agent, to the extent not otherwise already furnished to Administrative Agent and reasonably acceptable to Administrative
Agent, all instruments, documents, boundary surveys, footing or foundation surveys, certificates, Plans and Specifications, appraisals,
title and other insurance reports and agreements, and each and every other document, certificate, agreement and instrument required to
be furnished by Borrower pursuant to the terms of the Loan Documents;
(ii) execute
and deliver, from time to time, such further instruments (including, without limitation, any financing statements under the UCC) as may
be reasonably requested by Administrative Agent to confirm the lien of the Pledge Agreement and Mortgage on Borrower’s interest
in the equity collateral or Mortgage Borrower’s interest in the Equipment;
(iii) execute
and deliver to Administrative Agent such documents, instruments, certificates, assignments and other writings, and do such other acts
necessary to evidence, preserve and/or protect the collateral at any time securing or intended to secure the obligations of Borrower under
the Loan Documents, as Administrative Agent may reasonably require; and
(iv) do
and execute all and such further lawful and reasonable acts, conveyances and assurances for the carrying out of the terms and conditions
of this Agreement and the other Loan Documents, as Administrative Agent shall reasonably require from time to time, provided that
the same does not increase Borrower’s, Sole Member’s, Mortgage Borrower’s or Guarantor’s liabilities or obligations,
or diminish Borrower’s, Sole Member’s, Mortgage Borrower’s or Guarantor’s rights, under the Loan Documents, in
either case, from those contemplated thereunder, except to a de minimis extent.
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(c) Borrower
irrevocably appoints Administrative Agent as its true and lawful attorney-in-fact to do, in its name or otherwise, during the continuance
of such Event of Default, any and all acts and to execute any and all documents that are necessary for the purpose of exercising and perfecting
any and all rights and remedies available to Administrative Agent under the Loan Documents, at law and in equity (provided that
the same does not increase Borrower’s, Sole Member’s, Mortgage Borrower’s or Guarantor’s liabilities or obligations,
or diminish Borrower’s or Guarantor’s rights, under the Loan Documents, in either case, from those contemplated thereunder,
except to a de minimis extent), including, without limitation, such rights and remedies available to Administrative Agent pursuant
to Article XVII (and the above powers granted to Administrative Agent are coupled with an interest and shall be irrevocable).
5.6 Costs
of Enforcement. In the event that (a) any Pledge Agreement or the Mortgage is foreclosed upon in whole or in part or this Agreement
or any Pledge Agreement or Mortgage is put into the hands of an attorney for collection, suit, action or foreclosure, (b) a foreclosure
occurs with respect to any security agreement prior to or subsequent to any Pledge Agreement or the Mortgage in which proceeding Administrative
Agent is made a party, or (c) the bankruptcy, insolvency, rehabilitation or other similar proceeding occurs with respect to Borrower,
Mortgage Borrower, Sole Member, Guarantor or any Affiliate of the foregoing, or an assignment by Borrower, Sole Member, Mortgage Borrower,
Guarantor or any Affiliate of the foregoing for the benefit of its creditors, Borrower, its successors or assigns, shall be chargeable
with and agrees to pay all out-of-pocket costs of collection and defense, including out-of-pocket attorneys’ fees and costs, incurred
by Administrative Agent or Borrower in connection therewith and in connection with any appellate proceeding or post judgment action involved
therein, together with all required service or use taxes.
5.7 High
Volatility Commercial Real Estate. From and after the Closing Date until the earlier to occur of (a) the determination by Administrative
Agent, in its sole but good faith discretion, that the Loan constitutes Permanent Financing, and (b) the repayment in full of the
Debt (other than contingent indemnity obligations), (i) Borrower shall satisfy (x) the Equity Maintenance Requirement and (y) clause
(ii) of the Minimum Equity Requirement, and (ii) notwithstanding anything herein or in the other Loan Documents to the contrary,
no Borrower Party shall be permitted to make any Restricted Payment. Within five (5) Business Days of Administrative Agent’s
written request, Borrower shall provide a certification to Administrative Agent, in form (which certification may be in the form of an
Officer’s Certificate) and substance reasonably acceptable to Administrative Agent, confirming Borrower’s compliance with
the provisions of this Section 5.7.
5.8 Construction
Related Covenants.
5.8.1 Required
Improvements.
(a) Borrower
shall diligently (subject to Excusable Delay) cause the Required Improvements to be constructed in accordance, in all material respects,
with all Legal Requirements and substantially in accordance with the Plans and Specifications, as the same shall be updated pursuant to
Section 5.8.6, and as approved by Administrative Agent on the date hereof
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(b) Borrower
shall (i) cause the construction on the Land of the structures comprising the Required Improvements and related facilities, amenities
and improvements substantially in accordance with the Plans and Specifications, and (ii) prosecute such construction with diligence
and continuity, subject to Excusable Delay, in a good and workmanlike manner, and in accordance with this Agreement so as to achieve the
Major Milestones within the time period applicable to each such Major Milestone.
(c) Borrower
shall use commercially reasonable efforts to cause the Costs of the construction of the Required Improvements to be in accordance with
the then current Budget, subject to rights to allocate Cost Savings and contingency pursuant to the terms hereof. Borrower shall cause
construction of the Required Improvements substantially in accordance with the Plans and Specifications, free and clear of Liens other
than Permitted Encumbrances and as expressly provided for herein.
(d) Borrower
will cause each General Contractor Agreement to provide for the work thereunder to be performed for a guaranteed maximum price. Except
for the enabling work set forth on Schedule XVI hereto, Borrower will cause each Major Trade Contract (other than any General Contractor
Agreement) to provide for work thereunder to be performed for a fixed price.
(e) Borrower
shall deliver final “as-built” electrical, fire and life safety, HVAC, mechanical and plumbing drawings, together with updated
and complete architectural and structural drawings, to Administrative Agent within one hundred twenty (120) days following Substantial
Completion.
(f) Borrower
shall deliver (or make available via the Data Room) all material warranties and other similar documents relating to all work done and
equipment installed in the Project within forty-five (45) days following Component Substantial Completion.
(g) Borrower
agrees to execute and deliver to Administrative Agent such documents as Administrative Agent and its counsel may reasonably require in
order to ensure that the provisions of this Section 5.8 will be validly and legally enforceable and effective against Borrower
and all parties claiming by, through, under or against Borrower (subject to laws relating to creditors’ rights and principles of
equity); provided that the same does not increase Borrower’s, Sole Member’s or Guarantor’s liabilities or obligations,
or diminish Borrower’s, Sole Member’s, Mortgage Borrower’s or Guarantor’s rights, under the Loan Documents, in
either case, from those contemplated thereunder, except to a de minimis extent.
5.8.2 Construction
Schedule. Each month prior to Completion (to the extent not otherwise part of a Draw Request), to the extent there are any updates
to the Construction Schedule that impact any Major Milestones or materially modify the durations or sequencing of any other items in the
Construction Schedule, Borrower shall deliver to Administrative Agent and Construction Consultant, a copy of an updated Construction Schedule.
5.8.3 Budget.
No adjustments or other modifications to the Budget shall be made or approved without the prior written consent of Administrative Agent,
in its sole discretion, acting in good faith, except (i) to the extent expressly permitted under Section 2.24 or (ii) to
the extent that a Budget adjustment is included in an approval given under Section 5.8.7. The Budget shall at all times provide
for (a) an interest Line Item in an amount sufficient to cover the payment of Debt Service and the Mortgage Debt Service that shall
be due through the then applicable Stated Maturity Date (inclusive of any applicable Extension Term if Borrower shall have exercised an
Extension Option), as determined by Administrative Agent, (b) a “Hard Costs contingency” Line Item equal to or greater
than the amount required pursuant to Section 2.24, (c) a “Soft Costs contingency” Line Item equal to or greater
than the amount required pursuant to Section 2.24 and (d) a “general contingency” Line Item equal to or greater
than the amount required pursuant to Section 2.24.
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5.8.4 Inspection
of Project and Books and Records; Reports.
(a) Borrower
agrees to cause Mortgage Borrower to permit Administrative Agent and Construction Consultant, or designated representatives of any of
them, to enter upon the Property, at reasonable time and from time to time and upon reasonable advance notice during normal business hours,
provided that (i) such inspections do not unreasonably interfere with the construction and/or operation of the Property and
(ii) Borrower shall have the right to have a representative present during such access (provided that Borrower’s failure
to have such a representative present shall not prevent Administrative Agent or Construction Consultant or designated representatives
from any of them from such access), with free access to inspect or examine or, to the extent not located on the Property, to otherwise
make available to Administrative Agent and Construction Consultant the following: (A) all materials and shop drawings pertaining
to the construction of the Required Improvements; (B) any material contracts, bills of sale, statements, receipts or vouchers pertaining
to the construction of the Required Improvements; (C) records of all work done, labor performed or materials furnished in and about
the Project, including, without limitation, in connection with the construction of the Required Improvements; (D) all material books,
contracts and records of Borrower, Sole Member, Mortgage Borrower or their Affiliates pertaining to the construction of the Required Improvements;
and (E) any other material documents which are related to the construction of the Required Improvements that are in Borrower’s,
Sole Member’s, Mortgage Borrower’s or their Affiliates’ possession or control or which can otherwise reasonably be obtained
or requested by Borrower.
(b) Borrower
will promptly provide Administrative Agent, Construction Consultant and Servicer with copies of any of the foregoing as Administrative
Agent, Construction Consultant or Servicer, as the case may be, may from time to time request. Borrower will make its representatives
reasonably available to discuss Borrower’s and Mortgage Borrower’s affairs, finances and accounts relating to the construction
of the Required Improvements, and Borrower will reasonably cooperate, and take all reasonable steps to cause each Work Provider to reasonably
cooperate with Administrative Agent and Construction Consultant, or any of their designated representatives, to enable such Person to
perform its functions under this Agreement.
(c) Borrower
shall make available to Administrative Agent and Construction Consultant via the Data Room, promptly upon receipt, each monthly progress
report and each other material report or document prepared by the General Contractor pursuant to the General Contractor Agreement and,
to the extent the Borrower is entitled to receive the same pursuant to the applicable General Contractor Agreement, annual financial statements
of the General Contractor.
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(d) Borrower
shall keep Construction Consultant apprised of any and all meetings regarding anticipated draw requests in which Borrower, Mortgage Borrower
or any Person acting on behalf of any of them shall have a right to participate and shall provide Administrative Agent, Construction Consultant
and Servicer reasonable advance notice of any such meetings, and Administrative Agent and Construction Consultant (or their respective
representatives) shall be permitted to attend any such meetings. Borrower shall keep Construction Consultant reasonably apprised of any
regularly-scheduled design meetings (if any), and shall endeavor to give Construction Consultant advance notice of any unscheduled or
ad-hoc design meetings to the extent reasonably practicable in Borrower’s good faith determination, which notification may be delivered
by telephone and/or electronic mail, and shall, in any event, keep Construction Consultant apprised of any and all such unscheduled or
ad-hoc design meetings within a reasonable time after the same occur.
5.8.5 Construction
Consultant.
(a) Borrower
acknowledges that (i) Construction Consultant has been retained by Administrative Agent, on behalf of Lenders, to act as a consultant
and only as a consultant to Administrative Agent, on behalf of Lenders, in connection with the construction of the Required Improvements
and has no duty to Borrower, (ii) Construction Consultant shall in no event or under any circumstance have any power or authority
to make any decision or to give any approval or consent or to do any other act or thing which is binding upon Administrative Agent or
any of Lenders, and any such purported decision, approval, consent, act or thing by Construction Consultant on behalf of Administrative
Agent or any of Lenders shall be void and of no force or effect, (iii) Administrative Agent reserves the right to make any and all
decisions required to be made by Administrative Agent under this Agreement and to give or refrain from giving any and all consents or
approvals required to be given by Administrative Agent under this Agreement and to accept or not accept any matter or thing required to
be accepted by Administrative Agent under this Agreement, and without being bound or limited in any manner or under any circumstances
whatsoever by any opinion expressed or not expressed, or advice given or not given, or information, certificate or report provided or
not provided, by Construction Consultant to Administrative Agent or any other person or party with respect thereto, (iv) except as
expressly provided herein, Administrative Agent reserves the right in its sole and absolute discretion to disregard or disagree, in whole
or in part, with any opinion expressed, advice given or information, certificate or report furnished or provided by the Construction Consultant
to Administrative Agent or any other person or party, and (v) subject to the Construction Consultant Fee Cap (which shall only apply
to the extent that an Event of Default has not occurred and is continuing), Borrower shall be required to pay all reasonable amounts due
and payable to the Construction Consultant by Administrative Agent and/or Lenders in connection with the Loan.
(b) Borrower
acknowledges that Administrative Agent may replace Construction Consultant from time to time with a replacement Construction Consultant
selected by Administrative Agent in its sole good faith discretion.
5.8.6 Plans
and Specifications.
(a) Approval
of Plans and Specifications. Administrative Agent’s prior written good faith approval shall be required with respect to any
proposed modifications or amendments to the Plans and Specifications if such modifications or amendments, when aggregated with all prior
and concurrent modifications or amendments would constitute a Material Change Order hereunder, and to the extent required by Legal Requirements
or any Construction Permits, any proposed modifications or amendments to the Plans and Specifications shall also require approval by the
appropriate Governmental Authorities.
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(b) Changes
to Plans and Specifications. Borrower shall provide to Administrative Agent and Construction Consultant, concurrently with each Draw
Request or at such other times as Administrative Agent or Construction Consultant may reasonably request, copies of all orders, documents,
revisions, amendments or other modifications to Plans and Specifications, regardless of whether the prior approval by Administrative Agent
and/or Construction Consultant of any such order, document or revision is required pursuant to Section 5.8.7.
5.8.7 Field
Orders; Emergency Orders; Change Orders.
(a) Borrower
shall not (and shall not cause or permit Mortgage Borrower to) request, initiate, agree to, accept, cause or suffer directly or indirectly
any Material Change Order without Administrative Agent’s prior good faith written consent. Notwithstanding the foregoing, Field
Orders and Emergency Orders may be made without the prior written consent of Administrative Agent; provided that, with respect
to any such Field Order or Emergency Order, Borrower shall notify Administrative Agent thereof by the earlier of (i) ten (10) days
after Borrower obtains actual knowledge of the effectiveness of such Field Order or Emergency Order is entered into or (ii) the time
of the first Draw Request delivered at least ten (10) days after the date such Field Order or Emergency Order is entered into (which
notification shall be deemed submitted to the extent that copies are included as part of a Draw Request); and provided further
that any increased Costs that result from any such Field Orders or Emergency Orders shall not affect Borrower’s obligation to cause
Completion of the Required Improvements and pay all Costs thereof, and any such increased Costs shall be considered in calculating any
Deficiency pursuant to the terms of the Loan Documents.
(b) No
Change Order (i) shall obligate Administrative Agent or any Lender to increase the amount of the Loan, or (ii) shall obligate
any Lender to make any Advance to the extent the same would not otherwise be obligated pursuant to this Agreement to make such Advance.
Borrower shall submit to Administrative Agent and Construction Consultant copies of each proposed Material Change Order prior to entering
into it, together with documentation reasonably satisfactory to Administrative Agent and Construction Consultant, setting forth all additions
and subtractions theretofore made to or from the scope of the Required Improvements. Administrative Agent shall promptly review all Material
Change Orders so submitted. If any Change Order shall require the consent or approval of any third party, Borrower shall provide Administrative
Agent with reasonable written evidence of such consent or approval. Borrower shall submit to Administrative Agent and Construction Consultant
copies of all Change Orders (other than Material Change Orders which shall be subject to Section 5.8.7(a) and this subsection
(b) above) entered into with respect to the Required Improvements by the earlier of (x) thirty (30) days after the date
such Change Order is entered into or (y) the time of the first Draw Request delivered at least ten (10) days after the date
such Change Order is entered into (which copies shall be deemed submitted to the extent that such copies are included as part of a Draw
Request), irrespective of whether the same require the prior approval of Administrative Agent and Construction Consultant pursuant to
this Agreement.
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(c) Notwithstanding
the foregoing provisions of this Section 5.8.7, promptly following the effective date of any amendment, supplement or other
modification of the Plans and Specifications, any Material Construction Agreement (if Borrower, Mortgage Borrower or their Affiliate is
a party thereto or obtains knowledge thereof) or any material Construction Permit (if Borrower, Mortgage Borrower or their Affiliate is
a party thereto or obtains knowledge thereof), Borrower shall cause delivery (to the extent not previously delivered or made available)
of same to Administrative Agent and Construction Consultant, which delivery may be made via the Data Room.
(d) In
the event Borrower has not submitted a Draw Request in any calendar month (including, without limitation, any month prior to the first
Draw Request submitted hereunder), Borrower shall deliver to Administrative Agent a list of all pending or contemplated Change Orders
(including pending or contemplated Change Orders that Trade Contractors have alleged to General Contractor) not previously delivered to
Administrative Agent on or before the first day of the following month.
5.8.8 Correction
of Work. Borrower will, promptly after receipt of written notice from Administrative Agent, correct or cause Mortgage Borrower to
cause General Contractor to correct (or cause to be corrected) any defect in the Required Improvements or any material departure from
the Plans and Specifications. Borrower agrees that the making of any Advance shall not constitute a waiver of Administrative Agent’s
right to require compliance with this Section 5.8.8 with respect to any such defects or material departures from the Plans
and Specifications. Borrower agrees that Administrative Agent’s failure to deliver such a notice shall not constitute a waiver by
Administrative Agent of any of the Borrower’s obligations hereunder or in the other Loan Documents.
5.8.9 Required
Construction Notices.
(a) Borrower
shall give notice to Administrative Agent promptly upon the occurrence of:
(i) any
cessation of construction of the Required Improvements for a period in excess of ten (10) consecutive Business Days, regardless of
whether or not such cessation is due to an Excusable Delay;
(ii) any
written notice given or received by Borrower or Mortgage Borrower pursuant to any Construction Agreement alleging that there has occurred
a default or other failure by Mortgage Borrower in the fulfillment of Mortgage Borrower’s obligations thereunder; and
(iii) any
condition which results in any material delay, including, without limitation, any Excusable Delay, which could reasonably be expected
to result in Substantial Completion or Component Substantial Completion occurring after the date therefor set forth in the Construction
Schedule, or in any further material delay beyond any material delays of which Administrative Agent has been previously notified.
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(b) Each
notice pursuant to this Section 5.8.9 shall be accompanied by a statement of Borrower setting forth details of the occurrence
referred to therein and stating what action Borrower proposes to take with respect thereto, in each case in such detail as Administrative
Agent may reasonably require.
(c) Borrower
shall provide Administrative Agent with a copy of any draw request or other request for any advance of the Mortgage Loan proceeds submitted
to Mortgage Administrative Agent or the Mortgage Lender by Mortgage Borrower or any Affiliate or agent thereof simultaneously therewith.
5.8.10 Compliance
with Construction Agreements. Borrower shall cause Mortgage Borrower to, at its sole expense, (i) make available to Administrative
Agent (via the Data Room) true, correct and complete copies in all material respects of all Construction Agreements in its or its Affiliate’s
possession or control then currently in effect (including all amendments or modifications thereto), (ii) promptly perform and/or
observe (and cause each of Borrower’s and Mortgage Borrower’s Affiliates to promptly perform and/or observe), in all material
respects, the covenants, agreements and conditions required to be performed and observed by it under each Construction Agreement to which
Mortgage Borrower or any Borrower’s Affiliate is a party, and do all things necessary to preserve and to keep unimpaired its rights
thereunder, (iii) promptly use Commercially Reasonable Efforts to secure or enforce the performance and observance of all of the
material covenants, agreements and conditions required to be performed and/or observed by any other party under each Construction Agreement
and (iv) to the extent required hereunder, take all actions as are necessary from time to time to preserve and maintain each Construction
Agreement in accordance with all Legal Requirements.
5.8.11 General
Contractor Agreement.
(a) At
all times from and after the Closing Date until Completion of the Project, one or more General Contractor Agreements for Completion of
the Conversion Component, the Construction Component, in each case, to the extent such Component is not yet Completed, shall remain in
full force and effect. Borrower shall promptly notify Administrative Agent of any default by Mortgage Borrower or General Contractor of
which it is aware under the General Contractor Agreement and promptly deliver to Administrative Agent a copy of each material notice,
report and estimate received by Mortgage Borrower under the General Contractor Agreement.
(b) Any
General Contractor Agreement shall be subordinate to the Lien of the Mortgage and all of Administrative Agent’s and Lenders’
rights with respect to the Property as provided in the Consent of General Contractor Agreement. Administrative Agent shall have the right
to cause Borrower to cause Mortgage Borrower to terminate any General Contractor Agreement and replace the General Contractor thereunder
with a Person that is not an Affiliate of Borrower and is otherwise satisfactory to Administrative Agent, if any of the following shall
occur: (i) the General Contractor commits fraud, gross negligence or willful misconduct, (ii) the General Contractor is in material
default of its obligations under its General Contractor Agreement beyond applicable notice, grace and/or cure periods to the extent such
material default is reasonably likely to have a Material Adverse Effect, (iii) an Event of Default has occurred and is continuing,
or (iv) a Bankruptcy Action shall occur with respect to the General Contractor. In the event that Mortgage Borrower enters into any
replacement General Contractor Agreement, as a condition to the effectiveness thereof, (i) intentionally omitted, (ii) a fully
executed original of such Consent of General Contractor Agreement shall be delivered to Administrative Agent, and (iii) Borrower
shall have delivered a certified true, correct and complete copy of the applicable final executed Consent of General Contractor Agreement
in the form approved by Administrative Agent in accordance with this Agreement and, subject to the Additional Disclosure Conditions, any
other documentation, certificates or information as Administrative Agent may reasonably request in connection with the foregoing.
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(c) If
Administrative Agent or its nominee, designee, successor, or assignee acquires title to the Collateral or the Property and/or the rights
of Mortgage Borrower by reason of foreclosure of any Pledge Agreement or the Mortgage, assignment in lieu of foreclosure or otherwise,
Administrative Agent or such other party designated by Administrative Agent shall (x) succeed to all of the rights of and benefits
accruing to Mortgage Borrower under the General Contractor Agreement, and (y) be entitled to exercise all of the rights and benefits
accruing to Mortgage Borrower thereunder, subject to the applicable Assignment of General Contractor Agreement.
(d) Notwithstanding
anything contained in this Agreement or the other Loan Documents to the contrary, to the extent that Mortgage Borrower has, under the
General Contractor Agreement, any right of approval with respect to any material matter, Borrower shall not permit or cause Mortgage Borrower
to grant or fail to grant such approval without the prior written consent of Administrative Agent in each instance, such consent not to
be unreasonably withheld.
5.8.12 Changes
in Material Construction Agreements.
(a) Except
as expressly permitted by Section 5.8.12(c), without, in each case, Administrative Agent’s prior written consent, which
consent shall not be unreasonably withheld, conditioned or delayed, in each case, to the extent Mortgage Borrower has any contractual
rights with respect thereto, Borrower will not do or cause Mortgage Borrower to do any of the following, and shall use Commercially Reasonable
Efforts not to permit General Contractor or any other Person to do any of the following (each, a “Material Construction Agreement
Modification”): (i) surrender, terminate, cancel or enter into any Material Construction Agreements, or enter into any
agreement in substitution for, or consent to the assignment of, or grant any material waiver under any Material Construction Agreement,
(ii) amend or otherwise modify or supplement, in any material respects, any Material Construction Agreement (excluding any Material
Trade Contract between a General Contractor and the applicable Material Trade Contractor, which is covered by subsection (iii)),
or (iii) amend or otherwise modify or supplement in any material respect any Material Trade Contract between a General Contractor
and the applicable Material Trade Contractor over which, pursuant to the terms of the applicable General Contractor Agreement, Mortgage
Borrower has an approval right; provided, however, a Material Construction Agreement Modification entered into with any
Affiliate of Borrower shall be subject to Administrative Agent’s written consent, in its sole discretion.
(b) Prior
to the execution of any Major Trade Contract or agreement with a Material Design Professional to be entered into by or at the direction
of Mortgage Borrower, Borrower shall deliver to Administrative Agent a duly executed consent of the contracting party thereto substantially
in the form of the Architect Consent, Engineer Consent or Major Trade Contractor Consent, as applicable.
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(c) Notwithstanding
Section 5.8.12(a), the amount payable under any General Contractor Agreement or any Material Construction Agreement may be
increased by Mortgage Borrower or General Contractor, as applicable, without Administrative Agent’s prior written consent solely
to reflect (i) any amendment or modification to the Budget approved in accordance with Section 5.8.3 or any reallocation
of the Budget made in accordance with Section 2.24, (ii) any amendment or modification to the Plans and Specifications
approved in accordance with Section 5.8.6, (iii) any Material Change Order approved in accordance with Section 5.8.7,
or (iv) any amendment or modification to the Plans and Specifications that does not require the approval of Administrative Agent
in accordance with the terms of this Agreement; provided, however, that notwithstanding anything in the Loan Documents to
the contrary, in all cases, payments under Construction Agreements shall only be made in accordance with the Budget, as the same shall
be amended in accordance with Section 5.8.3 and reallocated in accordance with Section 2.24.
5.8.13 Trade
Contracts. Borrower may from time to time deliver to Administrative Agent and Administrative Agent’s Construction Consultant
a list of the names of prospective Major Trade Contractors with whom a General Contractor or Mortgage Borrower may contract for the construction
of the Required Improvements. Borrower will deliver to Administrative Agent an executed copy of any Major Trade Contract which Mortgage
Borrower enters into and will promptly give notice to Administrative Agent of the surrender, termination, cancellation, modification,
amendment, substitution or assignment of any Major Trade Contract, whether or not Administrative Agent’s consent to such action
is required pursuant to Section 5.8.12. Borrower shall deliver to Administrative Agent (i) a copy of each Material Trade
Contract entered into by a General Contractor within ten (10) days after such Material Trade Contract is delivered to Borrower or
Mortgage Borrower and (ii) a copy of each subcontract entered into by a General Contractor and delivered to Borrower or Mortgage
Borrower or which the applicable General Contractor Agreement permits Borrower or Mortgage Borrower to obtain within ten (10) days
after Administrative Agent’s request therefor. Prior to [the commencement of any Required Improvements to Building Four, Building
Five or the parking garage], Mortgage Borrower will provide Administrative Agent with copies of signed and effective Trade Contracts (excluding
the General Contractor Agreement) representing not less than seventy percent (70%) of the Hard Costs to be paid under the General Contractor
Agreement with respect to [such Required Improvements.]
5.8.14 Bonds;
Sub-Guard Insurance. Each Trade Contractor (with the exception of any Trade Contractor performing work at the Project solely with
respect to the Building One Component) shall be, at Borrower’s and Mortgage Borrower’s reasonable election, either (a) bonded
pursuant to a Bond issued by a surety reasonably satisfactory to Administrative Agent or (b) covered by a sub-guard insurance policy
in form and substance reasonably acceptable to Administrative Agent. Borrower will cause Administrative Agent to be named as a co-obligee
(as each its interest may appear) with Borrower on all Bonds obtained by Mortgage Borrower.
5.8.15 Final
Survey. Borrower will deliver to Administrative Agent within ninety (90) days after Substantial Completion has occurred an updated
“as-built” Survey, dated no earlier than the date of Substantial Completion, with a certification that there are no encroachments
by the Required Improvements on land other than the Real Property.
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5.8.16 Cessation
of Construction. Borrower shall not for any reason cease (or cause or permit Mortgage Borrower to cease) the construction of the Required
Improvements, subject to Excusable Delay, or, after Completion of the Project, cease operating the Property in the normal course, other
than a temporary closure or reduction of operations of the Property as a result of Excusable Delay.
5.8.17 Construction
Permit. Borrower shall at all times make available to Administrative Agent via the Data Room true, correct and complete copies of
all Construction Permits in all material respects then currently in effect. Promptly after obtaining any Construction Permit, Borrower
shall deliver a copy thereof to Administrative Agent (which delivery may be made through the Data Room). Notwithstanding the foregoing,
Borrower shall make all Construction Permits available to Administrative Agent and Construction Consultant upon prior request.
5.8.18 No
Encroachments. Except as required or permitted pursuant to the Zoning Documents, Borrower shall cause the Required Improvements to
be constructed entirely within the perimeter of the Real Property and so as not to encroach upon or overhang any easement or right-of-way
or any land of others, and when erected shall be wholly within any applicable building restriction lines, however established.
5.8.19 Final
Lien Waivers. To the extent not previously delivered to Administrative Agent, with respect to each Trade Contract, within thirty (30)
days of the date of final payment thereunder, Borrower shall deliver to Administrative Agent, a duly executed final lien waiver substantially
in the form and substance of Exhibit H-3 (or in such other form as may be acceptable to Administrative Agent) from such Trade
Contractor evidencing that such contractor has been paid in full for all work performed and/or materials supplied and the “Balance
Due-Final Payment” is $0.
5.8.20 Certificate
of Occupancy. If the C/O Requirement Trigger has occurred with respect to a Building, within thirty (30) days thereof Borrower shall
cause Mortgage Borrower to submit an application for and thereafter diligently pursue obtaining an unconditional permanent (or temporary)
certificate of occupancy (or, if not applicable, the equivalent of a certificate of occupancy that is customarily issued by the applicable
Governmental Authorities or the written acceptance by the City of Cambridge of Required Improvements that constitute public amenities)
with respect to such Building and in any event shall cause Mortgage Borrower to obtain same no later than the date required under any
Lease or any letter of intent for a Lease described in the definition of C/O Requirement Trigger, or as required by applicable Legal Requirements
and after obtaining same, shall cause Mortgage Borrower to keep each such certificate of occupancy or equivalent in effect at all times
thereafter.
5.8.21 Protection
Against Liens. Subject to the provisions of Section 7.2 and Borrower’s right to contest set forth in Section 7.3,
Borrower or Mortgage Borrower shall pay, discharge of record by bonding or otherwise, all claims for labor, materials and services furnished
in connection with construction of the Required Improvements and take all actions reasonably required to prevent the assertion of claims
of Liens against the Property and/or the Collateral, other than Permitted Encumbrances that are not Specified Permitted Encumbrances.
Subject to the rights of Mortgage Administrative Agent under the Mortgage Loan Documents, Borrower irrevocably appoints, designates and
authorizes Administrative Agent as its agent (such agency being coupled with an interest) with the authority (but no obligation) to file
any notice relating to claims of Liens that Administrative Agent deems advisable to protect its interests under the Loan Documents. In
the event that any stop notice or claim is asserted against Administrative Agent by any Person furnishing labor, services, equipment or
materials to the Required Improvements, upon demand by Administrative Agent, Borrower shall take such action as Administrative Agent may
reasonably require to release Administrative Agent from any obligation or liability with respect to such stop notice or claim, including
(i) if the claim is being contested in good faith by appropriate proceedings, obtaining a bond or other security, in form, substance
and amount reasonably satisfactory to Administrative Agent, or (ii) payment of such claim. If Borrower fails to take such action,
Administrative Agent may, in its sole discretion, file an interpleader action requiring all claimants to interplead and litigate their
respective claims, and in any such action Administrative Agent shall be released and discharged from all obligations with respect to any
funds deposited in court.
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5.8.22 Administrative
Agent’s Review. Observation, inspection and approvals by Administrative Agent of any document, permit, record, agreement or
other item or matter (including, without limitation, the Plans and Specifications, any Construction Permits or Operating Permits, any
Zoning Documents, any Construction Agreement, the Budget, etc.), the construction of the Required Improvements and the workmanship
and materials used therein shall impose no responsibility or liability of any nature whatsoever on Administrative Agent or Construction
Consultant and no Person shall, under any circumstances, be entitled to rely upon such inspections and approvals by Administrative Agent
or Construction Consultant for any reason. Approvals granted by Administrative Agent for any matters covered under this Agreement shall
be narrowly construed to cover only the parties and facts identified in any such approval.
5.8.23 Submission
of Evidence. Any condition of this Agreement which requires the submission of evidence of the existence or non-existence of a specified
fact or facts implies as a condition the existence or nonexistence, as the case may be, of such fact or facts and Administrative Agent
shall, at all times, be free to independently establish to its satisfaction such existence or non-existence.
5.8.24 Labor.
(a) Borrower
shall pay (or shall cause Mortgage Borrower or Manager to pay), or satisfy (or cause to be satisfied) when due all bills, costs, or other
obligations incurred by any Borrower Party or Manager or any Affiliate of the foregoing or on their behalf in connection with the employees
employed by Mortgage Borrower or Manager or any Affiliate of the foregoing in connection with the operation, development, or construction
of the Property, including any obligations under ERISA, severance costs, the Multiemployer Pension Plan Amendments Act, federal or state
wage and hour law, contributions, and payments required under collective bargaining agreements (including the Project Labor Agreements),
City codes, ordinances, or regulations, or applicable State or Federal plant closing laws (any such bills, costs, or liabilities a “Labor
Liability”). Nothing herein shall be construed as a waiver of any rights of Mortgage Borrower, Borrower, Sole Member, Guarantor,
Manager or any Affiliate under federal, state, municipal, local, or other labor, employment, or employee benefits law. Borrower shall
deliver to Administrative Agent promptly, and in any event within ten (10) Business Days after receipt thereof by Borrower, Mortgage
Borrower or any of their Affiliates, a copy of each notice concerning a claim of Labor Liability. Within ten (10) Business Days of
the close of each quarter, Borrower shall (and shall cause each other Borrower Party to) certify as to the payment of contributions and
other payments required under Labor Agreements (including the Project Labor Agreements) by Borrower, Mortgage Borrower or Manager or any
Affiliate of the foregoing or on their behalf in connection with the employees employed by Mortgage Borrower or Manager or any Affiliate
of the foregoing in connection with the operation, development, or construction of the Property.
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(b) Borrower
shall not (and shall cause Mortgage Borrower, each Manager and any ERISA Affiliate to not) waive any of its respective rights under ERISA
with respect to such liability (including any Withdrawal Liability) or otherwise enter into any settlement or compromise with respect
to any such liability (including any Withdrawal Liability) without Administrative Agent’s consent, which consent shall not be unreasonably
withheld, conditioned or delayed.
(c) Borrower
shall not, without Administrative Agent’s prior consent (which consent shall not be unreasonably withheld, conditioned or delayed),
enter into (or cause or permit Mortgage Borrower to enter into) any Labor Agreement.
(d) Borrower
shall not (and shall not cause or permit Mortgage Borrower to), without Administrative Agent’s prior consent (which consent shall
not be unreasonably withheld, conditioned or delayed), materially modify, amend or supplement, or consent to or suffer any modification,
amendment, or supplementation of any Labor Agreement.
5.8.25 Notices
of Default and Certain Occurrences. In addition to all other notices required to be given by Borrower hereunder, Borrower shall give
notice to Administrative Agent promptly upon (a) any Default (other than a Default of which Administrative Agent has delivered notice
to Borrower) or Event of Default, and shall deliver with such notice a detailed statement of the steps being taken to cure such Default
or Event of Default; (b) any default or Mortgage Loan Event of Default, together with a detailed statement of the steps being taken
to cure same; (c) the insolvency or Bankruptcy Action with respect to Borrower, Sole Member or Mortgage Borrower, or the dissolution,
insolvency or Bankruptcy Action with respect to Guarantor, (d) the occurrence of any actual or threatened (in writing) litigation
or action of a Governmental Authority concerning the actual or alleged presence, release, threat of release, placement on or in, or the
generation, transportation, storage, treatment or disposal at, the Property and/or Project of any Hazardous Substances, (e) any notice
of default received by Borrower, Sole Member or Mortgage Borrower as required under any of Sections 5.1.20(a)(ii), 5.1.25(b),
5.1.32, 5.3(g), 5.4.1(e), 5.8.9(a)(ii) or 5.8.11(a); and (f) the occurrence or threat (in
writing) of any pending legal, judicial, administrative or regulatory proceedings, including any disputes between Borrower and any Governmental
Authority affecting any Borrower Party or the Property, but excluding any Ordinary Course Litigation. Notwithstanding anything to the
contrary set forth herein, subject to Additional Disclosure Conditions (but solely to the extent arising under clause (y) thereof),
Borrower shall deliver to Administrative Agent within ten (10) Business Days following Administrative Agent’s written request,
any information reasonably requested by Administrative Agent with respect to any pending legal, judicial, administrative or regulatory
proceedings, including, without limitation, any Ordinary Course Litigation.
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5.8.26 Cold
and Warm Shell Construction. Borrower may construct Building Three beyond a Cold Shell (i.e. to a warm shell condition) using only
additional equity contributions and not Loan Advances provided that Administrative Agent has reasonably approved the Plans and
Specifications, the Construction Agreement, the Construction Schedule and the Budget for such additional construction and Lenders have
reasonably determined that such additional construction shall not impair the Project or materially adversely affect Lenders. As of July 15,
2024, Administrative Agent has approved the foregoing items to the extent delivered to Administrative Agent. Administrative Agent reserves
the right to receive and approve such of the foregoing items that have not yet been delivered. Borrower shall provide such information,
reports and other relevant materials that Lenders reasonably request regarding such additional construction. Such additional construction
shall be subject to all other construction obligations of Mortgage Borrower under this Agreement to the extent applicable.
5.8.27 Other
Building One Construction. In addition, Borrower may construct Building One Spec Suites and Building One Mullion Replacement using
only additional equity contributions and not Loan Advances provided that Administrative Agent has reasonably approved the Plans
and Specifications, the Construction Agreement, the Construction Schedule and the Budget for such additional construction and Lenders
have reasonably determined that such additional construction shall not impair the Project or materially adversely affect Lenders. Borrower
shall provide such information, reports and other relevant materials that Lenders reasonably request regarding such additional construction.
Such additional construction shall be subject to all other construction obligations of Mortgage Borrower under this Agreement to the extent
applicable.
5.8.28 Additional
Construction. In addition, as of the date of this Agreement, Administrative Agent and/or Lenders have approved the following additional
scopes of work, which shall be subject to the construction obligations of Mortgage Borrower under this Agreement to the extent applicable:
Undergrounding of power line on Whittemore Avenue, construction of the Promenade, completion of pile caps on and foundation at Building
5, and construction of the parking garage.
5.9 Key
Persons. At all times during the term of this Loan, at least two (2) of the Key Persons shall remain as officers of IQHQ Inc.
or such other Affiliate of Borrower that directly or indirectly Controls Borrower in compliance with this Agreement.
5.10 Continuing
Lien. Each of the Borrower, Mortgage Borrower, Sole Member and Guarantor acknowledges and agrees that (i) each of the Loan Documents
remains a legal, valid and binding obligation enforceable against it, as applicable, in accordance with its terms and remains in full
force and effect in favor of the Administrative Agent for itself and on behalf of the Secured Party, and (ii) the Loan Documents
and the Liens constituted thereby continue in full force and effect securing the payment and performance of the Debt.
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VI. INSURANCE; CASUALTY; CONDEMNATION; RESTORATION.
6.1 Insurance
under the Mortgage Loan. Borrower shall cause Mortgage Borrower to (a) maintain at all times during the term of the Loan the
insurance policies required under the Mortgage Loan Agreement (the “Mortgage Loan Policies”), and (b) otherwise
satisfy all covenants related thereto as provided in the Mortgage Loan Agreement. Subject to applicable law and the rights of Mortgage
Administrative Agent under the Mortgage Loan Documents and to the extent not inconsistent with the terms of the Mortgage Loan Documents,
Borrower shall cause Administrative Agent to (i) be named as certificate holder on all property policies and as an additional insured
on all liability policies, and (ii) be entitled to such notice and consent rights afforded Mortgage Administrative Agent under the
applicable terms and conditions of the Mortgage Loan Agreement relating to the Policies as may be designated by Administrative Agent.
Borrower shall not permit the Mortgage Loan Policies to be canceled without providing Administrative Agent with the prior notice required
to Mortgage Administrative Agent in the Mortgage Loan Agreement. Borrower shall provide Administrative Agent with evidence of all such
insurance required hereunder and with the other related notices required under the Mortgage Loan Documents, in each case, on or before
the date on which Mortgage Borrower is required to provide the same to Mortgage Administrative Agent. In the event that Administrative
Agent does not receive evidence of the insurance required by the Mortgage Loan Documents and Mortgage Administrative Agent fails to procure
such insurance pursuant to the Mortgage Loan Agreement, Administrative Agent shall have the right to obtain such insurance coverage. All
out-of-pocket expenses (including any Insurance Premiums) incurred by Administrative Agent in connection with obtaining such insurance
and keeping it in effect shall be paid by Borrower to Administrative Agent upon demand, and until paid, shall be secured by the Loan Documents
and shall bear interest at the Applicable Rate. Notwithstanding anything to the contrary contained in this Agreement, if at any time and
for any reason the Mortgage Loan Policies maintained pursuant to the Mortgage Loan Agreement are no longer being maintained or are reduced,
waived or modified in any material respect (in each case, including, without limitation, due to any waiver, amendment or refinance), Borrower
shall promptly (i) notify Administrative Agent of the same and thereafter Borrower shall be required to obtain and maintain the insurance
policies required under Sections 6.2 and 6.3.
6.2 Insurance
Requirements prior to Substantial Completion. During the period prior to Substantial Completion, Borrower shall cause Mortgage Borrower
to pay or cause to be paid and shall obtain or cause to be obtained insurance coverage of the types and minimum limits as follows:
(a) Builder’s
Risk/Course of Construction Insurance. From and after commencement of construction of the Required Improvements, insurance against
loss customarily included under so called “Builder’s Risk” insurance policy covering “All Risk” or “Special
Form” perils policies, including but not limited to the perils of named windstorm, vandalism, and malicious mischief, as well as
the perils of flood, earthquake, terrorism, boiler and machinery/equipment breakdown and testing (including both hot and cold testing),
and such other insurable hazards as, under good insurance practices, from time to time are insured against for other property and buildings
similar to the Improvements and Equipment in nature, use, location, height, and type of construction. Such policy shall be written on
a Builder’s risk Completed Value Form (100% non-reporting), shall be on a replacement cost basis without coinsurance, providing
for no deductible in excess of $100,000 for all such insurance coverage except $500,000 for water damage, interior water intrusion, rain,
sleet, ice or snow, and existing property and $500,000 for flood; provided however with respect to windstorm and earthquake coverage,
providing for a deductible of not greater than 5% of insurable value at time of loss, and shall also provide coverage for ordinance and
law including value of the undamaged portion, demolition/debris removal and increased cost of construction in an amount reasonably satisfactory
to the Administrative Agent. The amount of such “Builder’s Risk” insurance shall be not less than one hundred percent
(100%) of the Full Replacement Cost value of the existing Improvements (if applicable) and one hundred percent (100%) of the recurring
Hard Costs identified in the Budget, as amended, and the Equipment, provided, however, that notwithstanding the foregoing,
(i) any flood insurance, earthquake insurance and/or demolition/debris removal and any increased cost of construction coverage shall
contain a sublimit acceptable to Administrative Agent. Each such insurance policy shall also include coverage for (A) loss suffered
with respect to materials, equipment, machinery and supplies whether on-site, in transit or stored off-site (both with a sublimit acceptable
to Administrative Agent) and with respect to temporary structures, hoists, sidewalks, retaining walls and underground property, and (B) as
determined by Administrative Agent, recurring Soft Costs including plans, specifications, blueprints and models in connection with the
Project and additional debt service, property taxes and insurance expenses incurred in conjunction with any restoration following a casualty.
Each such insurance policy shall contain an agreed amount endorsement (or coinsurance waiver). Administrative Agent shall be named “Lender
Loss Payee” and “Mortgagee” pursuant to an endorsement satisfactory to Administrative Agent. The policy shall contain
a Permission to Occupy completed units/portions provision without limitation. If any portion of the Improvements or Personal Property
is currently or at any time in the future located in a federally designated special flood hazard area (“SFHA”), flood
hazard insurance for all Improvements and/or Personal Property located in the SFHA in an amount equal to the (1) the maximum amount
of building and/or contents insurance available under the National Flood Insurance Act of 1968, the Flood Disaster Protection Act of 1973
or the National Flood Insurance Reform Act of 1994, as each may be amended plus (2) such greater amount as Administrative Agent shall
reasonably require, in each case with deductibles acceptable to Administrative Agent.
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(b) Architect
and Engineer Insurance. Architect and Engineer “Professional Liability Insurance” during the period commencing on the
dates of the applicable Architect Agreement or the Engineer Agreement, respectively, and renewing thereafter until no earlier than the
expiration of the applicable statute of repose. Such insurance shall be in an amount equal to at least (i) $5,00,0000 per claim and
in the annual aggregate with respect to any Architect Agreement or Engineer Agreement which is a Material Construction Agreement and (ii) $2,000,000
per claim and in the annual aggregate with respect to any Architect Agreement or Engineer Agreement which is not a Material Construction
Agreement or from the Engineer associated with the Garage.
(c) Liability
Insurance for Construction Operations. Mortgage Borrower and General Contractor shall maintain a Comprehensive “General Liability”
insurance policy for “Personal Injury,” “Bodily Injury,” “Death,” “Accident” and “Property
Damage,” written on an occurrence basis and containing no “X”, “C”, “U” exclusion if excavation
and or/demolition is to be provided(such insurance may be maintained through an Owner Controlled Insurance Program (“OCIP”)
including, without limitation, “Commercial General Liability” insurance, with Products and Completed Operations coverage,
with no exclusion for construction operations; “Employers Liability” for Borrower, General Contractor and all enrolled Trade
Contractors; and “Umbrella Liability” coverage, providing single and combined limits of $100,000,000). Coverage shall be in
effect (through the purchase of tail coverage or by annual renewals of applicable Liability policies) until Completion, and may be provided
on a blanket basis, provided that such blanket insurance policies include the same protection as would a separate policy covering
only the Property in compliance with the provisions of this section. Mortgage Borrower shall maintain, if applicable, and shall cause
General Contractor and all Trade Contractors to carry Commercial Automobile Liability insurance covering “Owned” (if any),
“Hired” and “Non Owned Auto Liability” with combined single limits acceptable to Administrative Agent. The policies
described in this paragraph shall cover, without limitation: premises and operations, elevators, escalators, independent contractors,
“Contractual Liability” (covering, to the maximum extent permitted by law, Borrower’s obligation to indemnify Administrative
Agent as required under this Agreement) and “Products and Completed Operations Liability” coverage through the statute of
repose in the local jurisdiction. All liability insurance required hereunder shall name Administrative Agent as “Additional Insured.”
(d) Workers’
Compensation Insurance. Workers’ compensation, employers’ liability and disability insurance as required by law, if applicable.
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(e) Terrorism
Insurance. There shall be no exclusions or sublimits for losses resulting from acts of terrorism under the commercial property, general
liability and umbrella liability insurance required under this Section 6.2.1 so long as terrorism coverage is commercially
available. If the Terrorism Risk Insurance Act of 2002 (TRIA)/Terrorism Risk Insurance Program Reauthorization Act of 2015, as each may
be amended (“TRIPRA”), is not renewed any time during the term of the Loan, Borrower shall obtain terrorism coverage
as required herein for a cost not to exceed two hundred percent (200%) of the then-current cost for the insurance coverages required for
the Loan pursuant to Sections 6.2.1(a) and (c) (without giving effect to the cost of terrorism components of such
insurance).
6.3 Insurance
Requirements following Component Substantial Completion or during any Construction Pause. Upon Component Substantial Completion of
any Component and at all times thereafter during the term of this Agreement, Borrower shall pay or cause Mortgage Borrower to be paid
and shall obtain, or cause to be obtained, insurance coverage of the types and minimum limits as follows:
(a) Property
Insurance. Comprehensive all risk “special form” insurance including, but not limited to, loss caused by any type of windstorm
or hail on the Improvements and the Personal Property, (A) in an amount equal to one hundred percent (100%) of the “Full
Replacement Cost,” which for purposes of this Agreement means actual replacement value (exclusive of costs of excavations, foundations,
underground utilities and footings) with a waiver of depreciation; (B) containing an agreed amount endorsement with respect to the
Improvements and Personal Property waiving all co-insurance provisions or to be written on a no co-insurance form; (C) providing
for no deductible in excess of $100,000 for all such insurance coverage; provided however with respect to windstorm and earthquake
coverage, providing for a deductible of not greater than 5% of insurable value at time of loss and with respect to water damage, providing
for a deductible not greater than $250,000 while the flood deductible will be reasonably determined by Administrative Agent but not greater
than $500,000 per building; and (D) if any of the Improvements or the use of the Property shall at any time constitute legal non-conforming
structures or uses, coverage for loss due to operation of law in an amount equal to the Full Replacement Cost, and coverage for demolition
costs and coverage for increased costs of construction in amounts acceptable to Administrative Agent. In addition, Borrower shall cause
Mortgage Borrower to obtain: (y) if any portion of the Improvements and/or Personal Property is currently or at any time in the future
located in a federally designated “special flood hazard area”, flood hazard insurance for all Improvements and/or Personal
Property located in the SFHA in an amount equal to the (1) the maximum amount of building and contents insurance available under
the National Flood Insurance Act of 1968, the Flood Disaster Protection Act of 1973 or the National Flood Insurance Reform Act of 1994,
as each may be amended plus (2) such greater amount as Administrative Agent shall reasonably require, and (z) earthquake insurance
in amounts and in form and substance satisfactory to Administrative Agent in the event the Property is located in an area with a high
degree of seismic activity; provided that the insurance pursuant to clauses (y) and (z) hereof shall be
on terms consistent with the comprehensive all risk insurance policy required under this subsection (a). During any pause in construction
of Building Four (2 Alewife Park, Cambridge, MA 02140), Building Five (4 Alewife Park, Cambridge, MA 02140) and/or the planned parking
garage (6 Alewife Park, Cambridge, MA 02140), such Buildings and planned parking garage will be insured against fire; lightning; explosion;
windstorm or hail; smoke; aircraft or vehicle impact; riot, strike, or civil commotion; vandalism and malicious mischief; collapse; and
leakage from fire protection equipment, all with a $250,000 deductible, and flood coverage shall not be required for Building Four, Building
Five and the parking garage unless and until construction of Building Four, Building Five and/or the parking garage has commenced. As
it pertains to offsite storage at any site described on Schedule XXI, Borrower agrees to insure or cause to be insured the values
of the equipment in an amount equal to one hundred percent (100%) of the “Full Replacement Cost” with deductibles reasonably
acceptable to Administrative Agent.
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(b) General
Liability and Excess Liability/Umbrella. Commercial general liability insurance, with minimum limits of $1,000,000 per occurrence,
and $2,000,000 in the aggregate, and excess liability/umbrella coverage for personal injury, bodily injury, death, accident and property
damage, providing in an amount no less than $100,000,000 per occurrence and in the annual aggregate on terms consistent with the commercial
general liability policy required under this subsection. The policies described in this clause shall cover, without limitation: premises
and operations, independent contractors, elevators, escalators, “Contractual Liability” (covering all insured contracts and,
to the maximum extent permitted by law, Borrower’s obligation to indemnify Administrative Agent as required under Section 19.12
hereof), “Products and Completed Operations Liability” coverage, “Auto Liability” coverage for all owned, hired
and non-owned vehicles if any, excluding losses resulting from the gross negligence of Administrative Agent, its agents and/or employees.
(c) Commercial
Loss of Rents/Business Income Insurance. If applicable, “Loss of Rents/Business Income” insurance as an endorsement to
the “All Risk” coverage required above covering an initial period of restoration for twenty-four (24) months plus a three
hundred sixty (360) day extended period of indemnity endorsement providing Proceeds based on one hundred percent (100%) of the Estimated
Gross Income for a period of at least twenty-four (24) months following the date of casualty. Such policy of insurance shall be subject
only to exclusions that are reasonably acceptable to Administrative Agent. The term “Estimated Gross Income” means
the total then ascertainable Rents payable under the Leases.
(d) Renovation
and Reconstruction Insurance. During any period of repair, restoration or construction, unless covered by the “All Risk”
or “Special Form” policy and/or General Liability and Excess Liability/Umbrella policies required above, (1) Builder’s
“All-Risk” insurance in an amount equal to one hundred percent (100%) of the full repair, restoration or construction cost
of the Property, on a completed form, non-reporting basis, with either an agreed amount endorsement or confirmation that coinsurance does
not apply, and General Liability and Excess Liability/Umbrella Liability” including coverage for claims related to the repair, restoration
or construction with limits as required by Section 6.2.2 or as otherwise reasonably acceptable to Administrative Agent.
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(e) Boiler
and Machinery/Equipment Breakdown Insurance. Comprehensive boiler and machinery/equipment breakdown insurance (without exclusion for
explosion) covering all mechanical and electrical equipment against physical damage and loss of rents, including, without limitation,
all tenant improvements and betterments that Mortgage Borrower is required to insure pursuant to any Lease on a replacement cost basis.
Coverage for these perils may be included with the above referenced Property placement.
(f) Flood
Insurance. If any portion of the Improvements or Personal Property is located within an area designated as “flood prone”
or a “special flood hazard area” (as defined under the regulations adopted under the National Flood Insurance Act of 1968
and the Flood Disaster Protection Act of 1973, as each may be amended), flood insurance for all Improvements and/or Personal Property
located in the SFHA shall be provided, in an amount not less than the maximum limit of building and/or contents coverage available under
the Federal Flood Insurance plan with respect to the Property plus such additional flood insurance limits as Administrative Agent may
reasonably require, in each case with deductibles reasonably acceptable to Administrative Agent.
(g) Terrorism
Insurance. With respect to commercial property, loss of rents, general liability and excess liability/umbrella insurance required
under this Section 6.3, such policies shall not exclude losses resulting from perils and acts of terrorism so long as terrorism
coverage is commercially available. The policies or endorsements providing for such insurance shall be in form and substance reasonably
satisfactory to Administrative Agent. If the Terrorism Risk Insurance Act of 2002 (TRIA)/Terrorism Risk Insurance Program Reauthorization
Act of 2015, as each may be amended (“TRIPRA”), is not renewed any time during the term of the Loan, Borrower shall
cause Mortgage Borrower to obtain terrorism coverage as required herein for a cost not to exceed two hundred percent (200%) of the then-current
cost for the insurance coverages required for the Loan pursuant to Sections 6.2(a) and (c) (without giving effect
to the cost of terrorism components of such insurance). If any such insurance policy excludes coverage for perils and acts of terrorism,
then Borrower shall cause Mortgage Borrower obtain a separate terrorism insurance policy in the coverage amount required by this Section 6.3
in form and substance reasonably acceptable to Administrative Agent. The policies and/or endorsements, as well as proof of coverage in
respect of such insurance shall be in form and substance reasonably satisfactory to Administrative Agent.
(h) Workers’
Compensation Insurance. If applicable, worker’s compensation, employer’s liability and disability insurance subject to
the applicable statues in the local jurisdiction.
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(i) Other
Insurance. At Administrative Agent’s request, such other insurance with respect to the Property against loss or damage of the
kinds from time to time customarily insured against and in such amounts as are generally required by institutional lenders on loans of
similar type and amount and secured by properties comparable to, and in the general vicinity of, the Property.
6.3.2 Intentionally
Omitted.
6.3.3 Ratings
of Insurers. Borrower shall cause Mortgage Borrower to maintain the insurance coverage described in Sections 6.2 and 6.3,
in all cases, with one or more domestic insurer or insurers acceptable to Administrative Agent and permitted to do business in the State
of Massachusetts, having both claims-paying-ability and financial strength ratings not less than “A-VIII” by AM Best’s
Key Rating Guide or of not less than “A-” by Standard & Poor’s (unless otherwise approved by Administrative
Agent).
6.3.4 Form of
Insurance Policies; Endorsements.
(a) All
insurance policies required to be maintained pursuant to this Agreement shall be in such form and with such endorsements as are satisfactory
to Administrative Agent (and Administrative Agent shall have the right to approve amounts, form, risk coverage, deductibles, and loss
payees). Certificates of insurance with respect to all of the insurance required hereunder on the date hereof have been delivered to and
approved by Administrative Agent, and upon request from Administrative Agent, Borrower shall deliver to Administrative Agent a certified
copy of the applicable Policy endorsement from within thirty (30) days after its effective date and a copy of the full Policy in the event
of a claim.
(b) All
policies required to be maintained pursuant to this Agreement shall name Administrative Agent as mortgagee, lender’s loss payee
and additional insured, as its interest may appear (except that, with respect to liability policies, Administrative Agent shall only be
named as an additional insured), shall provide that all Proceeds (except with respect to Proceeds of liability and workers’ compensation
insurance) be payable to Administrative Agent to the extent set forth in Section 6.4, and shall contain: (i) a standard
“non-contributory mortgagee” endorsement or its equivalent relating, inter alia, to recovery by Administrative Agent
notwithstanding the negligent or willful acts or omissions of Mortgage Borrower; (ii) a waiver of subrogation endorsement in favor
of Administrative Agent; (iii) an endorsement or policy provision providing that no policy shall be impaired or invalidated by virtue
of any act, failure to act, negligence of, or violation of declarations, warranties or conditions contained in such policy by Mortgage
Borrower, Administrative Agent or any other named insured, additional insured or loss payee, except for the willful misconduct of Administrative
Agent knowingly in violation of the conditions of such policy; and (iv) to the extent permitted by applicable law, a provision that
such policies shall not be canceled or terminated without at least thirty (30) days’ prior written notice to Administrative Agent
(or ten (10) days’ for non-payment of premium), in each instance (with respect to liability policies, if the issuers elect
not to provide such notice Borrower shall cause Mortgage Borrower to provide such notice to Administrative Agent). Borrower shall promptly
forward to Administrative Agent a copy of each written notice received by Mortgage Borrower of any modification, reduction or cancellation
of any of the policies or any of the coverages afforded under any of the policies.
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(c) Each
insurance policy shall contain a provision whereby the insurer: (i) waives any right to claim any premiums and commissions against
Administrative Agent, provided that the policy need not waive the requirement that the premium be paid in order for a claim to
be paid to the insured, and (ii) provides that Administrative Agent at its option, shall be permitted to make payments to effect
the continuation of such policy upon notice of cancellation due to non-payment of premiums. In the event any insurance policy (except
for general public and other liability and workers compensation insurance) shall contain breach of warranty provisions, such policy shall
provide that with respect to the interest of Administrative Agent, such insurance policy shall not be invalidated by and shall insure
Administrative Agent regardless of (A) any act, failure to act or negligence of or violation of warranties, declarations or conditions
contained in such policy by any named insured, (B) the occupancy or use of the Property for purposes more hazardous than permitted
by the terms thereof, or (C) any foreclosure or other action or proceeding taken by Administrative Agent pursuant to any provision
of this Agreement.
6.3.5 Certificates.
(a) Borrower
shall deliver to Administrative Agent, prior to the Closing Date and prior to the renewal of the insurance policies required to be maintained
hereunder, evidence of insurance reasonably acceptable to Administrative Agent stating that the insurance policies required pursuant to
this Article VI are maintained with insurers who comply with the terms of Section 6.3.3, setting forth a schedule
describing all premiums required to be paid to maintain the policies of insurance required under this Article VI (such premiums,
the “Insurance Premiums”), and stating that all such Insurance Premiums as are then due and payable have been paid.
ACORD certificates of insurance upon request, Borrower shall deliver to Administrative Agent a certified copy of the applicable Policy
endorsement, or equivalent, with respect to all replacement policies shall be delivered to Administrative Agent within five (5) Business
Days after the expiration date of any of the insurance policies required to be maintained hereunder which certificates shall accompanied
by evidence of payment of any Insurance Premiums then due and payable. Borrower shall deliver to Administrative Agent full binders in
the event of a claim.
(b) Borrower
shall provide complete copies of the insurance policies described in Section 6.2 and Section 6.3 to Administrative
Agent upon request.
(c) If
Borrower fails to maintain and deliver to Administrative Agent the insurance required by this Agreement, upon five (5) Business Days’
prior notice to Borrower, Administrative Agent may procure such insurance, and all costs thereof (and interest thereon at the Default
Rate) shall be added to the Debt. Administrative Agent shall not, by the fact of approving, disapproving, accepting, preventing, obtaining
or failing to obtain any insurance, incur any liability for or with respect to the amount of insurance carried, the form or legal sufficiency
of insurance contracts, solvency of insurance companies, or payment or defense of lawsuits, and Borrower hereby expressly assumes full
responsibility therefor and all liability, if any, with respect thereto.
6.3.6 Separate
Insurance. Borrower shall cause Mortgage Borrower not to take out separate insurance contributing in the event of loss with that required
to be maintained pursuant to this Article VI unless such insurance complies with this Article VI.
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6.3.7 Blanket
Policies. The insurance coverage required under this Article VI may be effected under a blanket policy or policies covering
the Property and other properties and assets not constituting a part of the Property; provided that any such blanket policy documentation
shall specify the portion of the total coverage of such policy that is allocated to the Property, and any sublimits in such blanket policy
applicable to the Property, which amounts shall not be less than the amounts required pursuant to this Article VI and which
shall in any case comply in all other respects with the requirements of this Article VI. Upon Administrative Agent’s
request, (1) to the extent that any insurance required hereunder is procured by Mortgage Borrower, Borrower shall deliver to Administrative
Agent an Officer’s Certificate setting forth (i) the number of properties covered by such blanket policy, (ii) the location
by city (if available, otherwise, county) and state of the properties, (iii) the total insured value of the properties, (iv) a
brief description of the typical property type (commercial, residential, retail, etc.) included in the blanket policy and (v) such
other information or documentation as Administrative Agent may request.
6.3.8 Successors.
In the event of foreclosure of the Mortgage or other transfer of title to the Property in extinguishment in whole or in part of the Obligations,
all right, title and interest of Mortgage Borrower in and to the property insurance policies required hereunder then in force concerning
the Property and all proceeds payable thereunder shall thereupon vest in the purchaser at such foreclosure or Administrative Agent or
other transferee in the event of such other transfer of title.
6.4 Condemnation
and Insurance Proceeds.
6.4.1 Notification.
Borrower shall promptly notify Administrative Agent in writing upon obtaining knowledge of (i) the institution of any proceedings
relating to any Taking (whether material or immaterial) of, or (ii) the occurrence of any Casualty to the Property or any portion
thereof for which the estimated cost to repair exceeds $200,000, in the case of any individual Building, or $500,000 in the aggregate.
In addition, each such notice shall set forth such good faith estimate of the cost of repairing or restoring such casualty, damage, injury
or Taking in reasonable detail if the same is then available and, if not, as soon thereafter as it can reasonably be provided.
6.4.2 Distribution
of Proceeds under Mortgage Loan Agreement.
(a) Borrower
shall deliver to Administrative Agent all reports, plans, specifications, documents and other materials that are delivered to Mortgage
Administrative Agent under the Mortgage Loan Agreement in connection with the Restoration of the Property after a Casualty or Taking.
Borrower shall cause Mortgage Borrower to comply with the terms and conditions of the Mortgage Loan Documents relating to Restoration
(the “Mortgage Loan Restoration Provisions”). Notwithstanding anything to the contrary set contained in this Agreement,
if at any time and for any reason the Mortgage Loan Restoration Provisions cease to exist or are waived or modified in any material respect
(in each case, including, without limitation, due to any waiver, amendment or refinance) (such provisions, the “Waived Restoration
Provisions”), to the extent permitted to do so pursuant to the Mortgage Loan Documents (if applicable), Borrower shall promptly
(i) notify Administrative Agent of the same, (ii) comply with the provisions of this Section 6.4 relating to the
distribution and use of Proceeds, and (iii) remit to Administrative Agent (and shall cause Mortgage Borrower to remit to Administrative
Agent) any Net Proceeds to the extent required by such Waived Restoration Provisions as implemented under clause (ii) above.
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(b) Disbursement
of Net Proceeds. Borrower shall cause Mortgage Borrower to comply with the casualty provisions of the Mortgage Loan Documents. If
requested by Administrative Agent, Borrower will promptly provide evidence reasonably acceptable to Administrative Agent of its compliance
with the foregoing.
6.4.3 Proceeds.
Subject to the provisions of Section 6.4.2, in the event of any Taking of or Casualty, Mortgage Borrower’s right, title
and interest in and to all compensation, awards, proceeds, damages, claims, insurance recoveries, causes and rights of action (whether
accrued prior to or after the date hereof) and payments which Mortgage Borrower may receive or to which Mortgage Borrower may become entitled
with respect to the Property or any part thereof other than payments received in connection with any liability or loss of rental value
or business interruption insurance (collectively, “Proceeds”), in connection with any such Taking of, or Casualty to,
the Property or any part thereof are hereby assigned by Mortgage Borrower to Administrative Agent and, except as otherwise herein provided,
shall be paid to Administrative Agent. Borrower shall cause Mortgage Borrower, in good faith and in a commercially reasonable manner,
to file and prosecute the adjustment, compromise or settlement of any claim for Proceeds and, subject to Mortgage Borrower’s right
to receive the direct payment of any Proceeds as herein provided, shall cause the same to be paid directly to Administrative Agent to
be held and applied in accordance with the provisions of this Agreement. Except upon the occurrence and during the continuance of a Monetary
Default, material non-monetary Default or an Event of Default, Mortgage Borrower may settle any insurance claim with respect to Proceeds
which does not exceed the Casualty Amount. Whether or not a Monetary Default, material non-monetary Default or an Event of Default shall
have occurred and be continuing, if a Taking or Casualty could result in Proceeds in excess of the Casualty Amount, Administrative Agent
and Borrower will cause Mortgage Borrower to jointly engage a public adjuster reasonably acceptable to Administrative Agent and Mortgage
Borrower; provided, however, that Administrative Agent shall have the right to approve any final determination of such joint
adjuster and any settlement which might result in any Proceeds in excess of the Casualty Amount. Borrower shall pay all out-of-pocket
costs, fees and expenses actually incurred by Administrative Agent (including all reasonable out-of-pocket attorneys’ fees and expenses,
the out-of-pocket fees of insurance experts and the joint adjuster and costs incurred in any litigation or arbitration), and interest
thereon at the Default Rate to the extent not paid within ten (10) Business Days after delivery of a request for reimbursement by
Administrative Agent, in connection with the settlement of any claim for Proceeds and seeking and obtaining of any payment on account
thereof in accordance with the foregoing provisions. If any Proceeds are received by Mortgage Borrower and may be retained by Mortgage
Borrower pursuant to this Section 6.4, such Proceeds shall, until the completion of the related Restoration, be held in trust
for Administrative Agent and shall be segregated from other funds of Mortgage Borrower to be used to pay for the cost of the Restoration
in accordance with the terms hereof, and in the event such Proceeds exceed the Casualty Amount, such Proceeds shall be forthwith paid
directly to and held by Administrative Agent in the Cash Management Account in trust for Mortgage Borrower, in each case to be applied
or disbursed in accordance with this Section 6.4. If an Event of Default shall have occurred and be continuing, or if Mortgage
Borrower fails to file and/or prosecute any insurance claim for a period of fifteen (15) Business Days following Mortgage Borrower’s
receipt of written notice from Administrative Agent, Mortgage Borrower hereby irrevocably empowers Administrative Agent, in the name of
Mortgage Borrower as its true and lawful attorney-in-fact, to file and prosecute such claim (including settlement thereof) with counsel
satisfactory to Administrative Agent and to collect and to make receipt for any such payment, all at Borrower’s expense (including
payment of interest at the Default Rate for any amounts advanced by Administrative Agent pursuant to this Section 6.4). Notwithstanding
anything to the contrary set forth in this Agreement, however, and excluding situations requiring prepayment of the Note, to the extent
any Proceeds (either singly or when aggregated with all other than unapplied Proceeds with respect to the Property) do not exceed the
Casualty Amount, such Proceeds are to be paid directly to Borrower to be applied to restoration of the Property in accordance with the
terms hereof (except that Proceeds paid in respect of the insurance described in Section 6.3(c) shall be deposited directly
to the Cash Management Account as revenue of the Property).
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6.4.4 Administrative
Agent to Take Proceeds. If (i) a Monetary Default, material non-monetary Default or an Event of Default shall have occurred and
be continuing, (ii) a Total Loss with respect to the Property shall have occurred, (iii) the Restoration is not capable of being
completed before the date which is the earlier to occur of (A) three (3) months prior to the then-current Maturity Date, (B) the
earliest date required for such completion under the terms of the Construction Agreements and the Project Documents, (C) such time
as may be required under all applicable Legal Requirements in order to repair and restore the Property to the condition it was in immediately
prior to such Casualty or to as nearly as possible the condition it was in immediately prior to such Condemnation, as applicable, or (D) the
expiration of the insurance coverage referred to in Section 6.3(c) hereof (the “Cut-Off Date”), unless
on or prior to the Cut-Off Date Borrower shall deliver to Administrative Agent and there shall remain in effect a binding written offer,
subject only to customary conditions, of a financial institution or investment bank reasonably satisfactory to Administrative Agent duly
authorized to originate loans secured by real property located in the State for a loan from such financial institution or investment bank
to Borrower in a principal amount of not less than the sum of the then outstanding Principal Amount and which shall, in Administrative
Agent’s reasonable judgment, enable Borrower to refinance the Loan prior to the Maturity Date, (iv) the Property is not capable
of being restored substantially to its condition prior to such Taking or Casualty, (v) intentionally omitted, (vi) intentionally
omitted, or (vii) Substantial Completion has occurred and Administrative Agent determines in good faith that, taking into account
any remaining Advances under the Loan and any Deficiency Collateral delivered to Administrative Agent to address any Deficiency, upon
the completion of the Restoration, the gross cash flow and the net cash flow of the Property will not be restored to a level sufficient
to cover (after taking into account reasonably expected Net Proceeds) all carrying costs and operating expenses of the Property, including,
without limitation, debt service on the Note at a coverage ratio (after deducting all required reserves hereunder) equal to at least the
ratio immediately prior to such Casualty or Condemnation, which coverage ratio shall be determined by Administrative Agent in good faith
(taking into account any cash collateral that Borrower may deliver to Administrative Agent to achieve such coverage ratio upon terms satisfactory
to Administrative Agent) and (y) any portion of the Loan prepaid by Borrower in order to satisfy the foregoing coverage ratio test,
then in any such case, upon notice from Administrative Agent pursuant to this Section 6.4.4, all Proceeds shall be paid over
to Administrative Agent (if not paid directly to Administrative Agent) and any Proceeds remaining after reimbursement of Administrative
Agent’s reasonable out-of-pocket costs and expenses actually incurred in connection with recovery of any such Proceeds (including,
without limitation, administrative costs and inspection fees) shall be applied by Administrative Agent to prepay the Note in accordance
with the provisions hereof and the other Loan Documents (including, without limitation, payment of the Additional Interest (if any) and
any applicable Breakage Costs), and the balance, after repayment of the Debt, if any, shall be paid to Borrower.
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6.4.5 Borrower
to Restore.
(a) Promptly
after the occurrence of any damage or destruction to all or any portion of the Property or a Taking of a portion of the Property, Borrower
shall cause Mortgage Borrower to commence and diligently prosecute, or cause to be commenced and diligently prosecuted, to completion,
subject to Excusable Delays, the repair, restoration and rebuilding of the Property (in the case of a partial Taking, to the extent it
is capable of being restored) so damaged, destroyed or remaining after such Taking in compliance with all applicable Legal Requirements,
in all material respects, and free and clear of any and all Liens except Permitted Encumbrances (such repair, restoration and rebuilding
are sometimes hereinafter collectively referred to as the “Restoration”). Prior to Substantial Completion of the Required
Improvements hereunder, the Restoration shall be conducted substantially in accordance with the Plans and Specifications. If the Restoration
is commenced following Substantial Completion of the Required Improvements, the Plans and Specifications shall require that the Restoration
be done, and Borrower shall cause Mortgage Borrower to cause the work to be done, in a first-class workmanlike manner at least equivalent
to the quality and character prior to the damage or destruction (provided, however, that in the case of a partial Taking,
the Restoration shall be done to the extent reasonably practicable after taking into account the consequences of such partial Taking),
so that upon completion thereof, the Property shall be at least equal in value and general utility to the Property prior to the damage
or destruction; it being understood, however, that Mortgage Borrower shall not be obligated to restore the Property to the precise condition
of the Property prior to any partial Taking of, or casualty or other damage or injury to, the Property, if the Restoration actually performed,
if any, or failed to be performed, shall have no Material Adverse Effect on the value of the Property from the value that the Property
would have had if the same had been restored to its condition immediately prior to such Taking or casualty. For so long as any portion
of the Loan remains outstanding, Borrower shall be obligated to cause Mortgage Borrower to restore the Property suffering a Casualty or
which has been subject to a partial Taking in accordance with the provisions of this Section 6.4 whether or not the Proceeds
shall be sufficient.
(b) If
Net Proceeds are not required to be applied toward payment of the Debt pursuant to the terms hereof, then Administrative Agent shall make
the Net Proceeds which it is holding pursuant to the terms hereof available to Mortgage Borrower for payment of or reimbursement of Mortgage
Borrower’s expenses incurred with respect to the Restoration, upon the terms and subject to the conditions set forth in paragraphs
(i), (ii) and (iii) below and in Section 6.4.6:
(i) at
the time of loss or damage or at any time thereafter, there shall be no continuing Monetary Default, material non-monetary Default or
Event of Default;
(ii) intentionally
omitted;
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(iii) each
of Administrative Agent and Construction Consultant (prior to Substantial Completion of the Required Improvements) or an Independent Architect
(following Substantial Completion of the Required Improvements) shall have reasonably approved the plans and specifications for the Restoration
and any material change orders in connection with such plans and specifications, provided that if the plans and specifications
being used for the Restoration are the Plans and Specifications, then Administrative Agent’s approval shall not be required in duplication
of any other approval or consent right of Administrative Agent under this Agreement; and
(iv) Administrative
Agent shall, within a reasonable period of time prior to request for initial disbursement, be furnished with an estimate of the cost of
the Restoration accompanied by Construction Consultant’s or Independent Architect’s (as applicable) certification as to such
costs and appropriate Plans and Specifications for the Restoration. Borrower shall cause Mortgage Borrower to restore all Improvements
such that when they are fully restored and/or repaired, such Improvements and their contemplated use fully comply with all applicable
Legal Requirements, in all material respects, including zoning, environmental and building laws, codes, ordinances and regulations.
6.4.6 Disbursement
of Net Proceeds.
(a) Prior
to Substantial Completion, disbursements of Net Proceeds to Mortgage Borrower hereunder shall be made from time to time as if such Net
Proceeds constituted unadvanced Loan proceeds and shall be subject to all of the requirements set forth in this Section 6.3.5(a) and
Sections 2.20-2.33 (mutatis mutandis), as applicable, including, without limitation, the conditions to disbursement thereof
set forth in Sections 2.30, 2.31, 2.32 and 2.33 (as applicable), the Deficiency requirements of Section 2.25
and the Retainage requirements of Section 2.29.
(b) From
and after Substantial Completion, disbursements of Net Proceeds shall be made in accordance with the further terms and provisions of this
Section 6.4.6. Disbursements of the Net Proceeds to Mortgage Borrower hereunder shall be made from time to time (but not more
frequently than once in any month) by Administrative Agent but only for so long as no Default or Event of Default shall have occurred
and be continuing, as the Restoration progresses upon receipt by Administrative Agent of (i) an Officer’s Certificate dated
not more than ten (10) Business Days prior to the application for such payment, requesting such payment or reimbursement and describing
the Restoration performed that is the subject of such request, the parties that performed such Restoration and the actual cost thereof,
and also certifying that such Restoration and materials are or, upon disbursement of the payment requested to the parties entitled thereto,
will be free and clear of Liens other than Permitted Encumbrances, (ii) evidence reasonably satisfactory to Administrative Agent
that (A) all materials installed and work and labor performed in connection with such Restoration that was the subject of the prior
disbursement of Net Proceeds have been paid for in full (subject to Casualty Retainage and other holdbacks permitted under the Loan Documents
and required pursuant to the applicable construction agreements) and (B) except to the extent permitted pursuant to Sections 7.2
and 7.3 hereof, there exists no notices of pendency, stop orders, mechanic’s liens or notices of intention to file same (unless
the same is required by State law as a condition to the payment of a contractor) or any liens or encumbrances of any nature whatsoever
on the Property arising out of the Restoration, (iii) a certification from an Independent Architect certifying performance of the
Restoration together with an estimate of the cost to complete the Restoration and (iv) evidence reasonably satisfactory to Administrative
Agent that all requirements set forth herein with respect to such restoration have been satisfied.
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(c) All
plans and specifications in connection with the Restoration shall be subject to the prior approval of Administrative Agent and an Independent
Architect or engineer selected by Administrative Agent (the “Casualty Consultant”), not to be unreasonably withheld,
conditioned or delayed. The Restoration shall be completed in a first-class workmanlike manner and shall be at least materially equivalent
to the quality and character of the original work in the Improvements so that, upon completion thereof, the Property shall be at least
materially equal in value and general utility to the Property prior to the casualty or Taking, as applicable (it being understood, however,
that (i) Mortgage Borrower shall not be obligated to restore the Property to the precise condition of the Property prior to such
casualty or Taking, as applicable, and (ii) in the case of a partial Taking, the Restoration shall be done to the extent reasonably
practicable after taking into account the consequences of such partial Taking; provided that the Property shall be restored, to
the extent reasonably practicable, to be of at least materially equal value and of substantially the same character as prior to the casualty
or Taking, as applicable). Mortgage Borrower shall restore all Improvements such that when they are fully restored and/or repaired, such
Improvements and their contemplated use comply with all applicable Legal Requirements in all material respects. The identity of the contractors,
subcontractors and materialmen engaged in the Restoration, as well as the contracts under which they have been engaged, shall be subject
to the prior approval of Administrative Agent to the extent such approval would have been required if the work of such contractors, subcontractors
and materialmen was being performed in connection with the construction of the Required Improvements. All out-of-pocket costs and expenses
actually incurred by Administrative Agent in connection with recovering, holding and disbursing the Net Proceeds for the Restoration (including,
without limitation, reasonable out-of-pocket attorneys’ fees and expenses and the Casualty Consultant’s fees and disbursements)
shall be paid by Mortgage Borrower. In no event shall Administrative Agent be obligated to make disbursements of the Net Proceeds in excess
of an amount equal to the costs and expenses actually incurred from time to time for work in place as part of the Restoration, as certified
by the Casualty Consultant, less the Casualty Retainage. The term “Casualty Retainage” means, the greater of (1) the
actual amount to be held back from each contractor, subcontractor or materialman engaged in the Restoration and (2) ten percent (10%)
of the actual amount payable to such contractor, subcontractor or materialman pursuant to its trade contract.
(d) The
amount of Net Proceeds disbursed on account of any request for disbursement to any contractor, subcontractor or materialman engaged in
the Restoration shall be reduced by the Casualty Retainage, if any, applicable thereto. The portion of any Casualty Retainage that relates
to work or materials supplied by any contractor, subcontractor or materialman in connection with the Restoration will, upon request, be
disbursed to Mortgage Borrower subject to satisfaction (or waiver by Administrative Agent in its sole discretion) of the following conditions:
(i) No
Monetary Default, material non-monetary Default or Event of Default has occurred and is continuing;
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(ii) after
fifty percent (50%) of the work required under the applicable trade contract has been completed in compliance with such trade contract
and in substantial conformity with the plans and specifications for the Restoration approved by Administrative Agent, as confirmed by
the Casualty Consultant, Mortgage Borrower shall not be obligated to withhold any additional Casualty Retainage with respect to the remaining
fifty percent (50%) of such work, but shall retain the initial Casualty Retainage until final completion of such work including any applicable
punchlist items (it being acknowledged and agreed that at no time until final completion of the work under the applicable trade contract
shall the Casualty Retainage with respect thereto, in each case, be less than five percent (5%));
(iii) after
all work has been completed under the applicable trade contract (including all applicable punchlist items) in compliance with such trade
contract and in substantial conformity with the plans and specifications for the Restoration approved by Administrative Agent in its reasonable
discretion, as confirmed by the Casualty Consultant, the remaining Casualty Retainage held with respect thereto shall be released provided
that (A) such contractor will be paid in full for its work upon the release of the Casualty Retainage, (B) such contractor executes
and delivers a final lien waiver satisfactory to Administrative Agent, and (C) the Casualty Consultant shall have approved the work
completed by such contractor, as certified in writing by the Casualty Consultant to Administrative Agent; and
(iv) such
Casualty Retainage is actually payable pursuant to the applicable trade contract.
(e) If
at any time the Net Proceeds or the undisbursed balance thereof shall not, in the good faith opinion of Administrative Agent in consultation
with the Casualty Consultant, be sufficient to pay in full the balance of the costs and expenses which are estimated by the Casualty Consultant
to be incurred in connection with the completion of the Restoration, Borrower shall cause Mortgage Borrower to deposit the deficiency
(the “Net Proceeds Deficiency”) with Administrative Agent before any further disbursement of the Net Proceeds shall
be made. The Net Proceeds Deficiency deposited with Administrative Agent shall be held in an interest-bearing account, if available, by
Administrative Agent and shall be disbursed for costs and expenses actually incurred in connection with the Restoration on the same terms
and conditions applicable to the disbursement of the Net Proceeds, and until so disbursed pursuant to this Section 6.4.6(e) shall
constitute additional security for the Obligations.
(f) If,
after the Restoration is completed and all costs of completion have been paid, there are excess Net Proceeds, Administrative Agent shall
apply such excess Net Proceeds with respect to the Taking of or Casualty to the Property to the payment of the Debt (including, without
limitation, the Additional Interest (if any), and applicable Breakage Costs) without penalty or premium and any balance thereof shall
be paid over to Borrower.
VII. IMPOSITIONS, OTHER CHARGES, LIENS AND OTHER ITEMS.
7.1 Borrower
to Pay Impositions and Other Charges. Subject to the terms of Section 7.3, and except to the extent that Mortgage Administrative
Agent is paying the same pursuant to the Mortgage Loan Agreement, Borrower shall pay (and cause Mortgage Borrower to pay) all Impositions
now or hereafter levied or assessed or imposed against, as applicable, the Collateral, the Property or any part thereof and provide written
evidence of such payment to Administrative Agent, at least five (5) days prior to the imposition of any interest, charges or expenses
for the non-payment thereof and shall pay all Other Charges on or before the date they are due. Borrower shall deliver to Administrative
Agent annually, no later than fifteen (15) Business Days after the first day of each Fiscal Year, and shall update as new information
is received, a schedule describing all Impositions, payable or estimated to be payable during such Fiscal Year attributable to or affecting
the Collateral, the Property, Mortgage Borrower or Borrower. Nothing contained in this Agreement or the Pledge Agreements or the Mortgage
shall be construed to require Administrative Agent to pay any tax, assessment, levy or charge imposed on Borrower or Mortgage Borrower
in the nature of a franchise, capital levy, estate, inheritance, succession, income or net revenue tax or a tax in lieu of any of such
taxes.
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7.2 No
Liens. Subject to its right of contest set forth in Section 7.3, Borrower shall at all times keep, or cause to be kept,
the Collateral and Property free from all Liens (other than Permitted Encumbrances) and shall pay (or cause to be paid) when due and payable
(or bond over) all claims and demands of mechanics, materialmen, laborers and others which, if unpaid, might result in or permit the creation
of a Lien (other than a Permitted Encumbrance) on the Collateral, the Property or any portion thereof and shall in any event cause the
prompt, full and unconditional discharge (by bonding or otherwise) of all Liens imposed on or against the Collateral, the Property or
any portion thereof within thirty (30) days after receiving written notice of the filing (whether from Administrative Agent, the lienor
or any other Person) thereof. Borrower shall do or cause to be done, at the sole cost of Borrower, everything necessary, in Administrative
Agent’s good faith determination, to fully preserve the priority of the Lien of the Pledge Agreements against the Collateral and
the Mortgage against the Property, subject to the Permitted Encumbrances and the provisions of this Section 7.2 and Section 7.3.
Upon the occurrence of an Event of Default with respect to Borrower’s obligations as set forth in this Article VII,
Administrative Agent may (but shall not be obligated to) make such payment or discharge such Lien, and Borrower shall reimburse Administrative
Agent on demand for all such advances pursuant to Section 19.12 (together with interest thereon at the Default Rate).
7.3 Contest.
Borrower may cause or permit Mortgage Borrower to, in good faith, and by proper legal proceedings, where appropriate, diligently contest
the validity, amount or application of any Tax, Imposition, Lien, Legal Requirement or Insurance Requirement, provided that
in each case, at the time of the commencement of any such action or proceeding, and during the pendency of such action or proceeding (i) no
Event of Default shall exist and be continuing hereunder, (ii) Borrower shall keep Administrative Agent informed of the status of
such contest at reasonable intervals, (iii) if Borrower is not providing security as provided in clause (vi) below, adequate
reserves with respect thereto are maintained on Borrower’s books in accordance with the Approved Accounting Method, (iv) such
contest operates to suspend collection or enforcement as the case may be, of the contested Tax, Imposition, Lien, Legal Requirement
or Insurance Requirements (to the extent same has not been paid) or the Tax, Imposition or Lien is discharged by bonding or otherwise,
(v) in the case of any Insurance Requirement, the failure of Mortgage Borrower to comply therewith shall not impair the validity
of any insurance required to be maintained by Mortgage Borrower under Section 6.2 or the right to full payment of any claims
thereunder, and (vi) in the case of Taxes, Impositions and Liens which are not bonded or paid to the applicable Person or Governmental
Authority, during such contest, Borrower shall cause Mortgage Borrower to deposit with or deliver to Mortgage Administrative Agent Cash
in an amount equal to one hundred fifteen percent (115%) (unless the amount of such Impositions has been paid and is being contested after
payment) of (A) the amount of Mortgage Borrower’s obligations being contested plus (B) any additional interest, charge,
or penalty arising from such contest. The return of any such deposit shall be governed by Section 7.3. Notwithstanding the
foregoing, the creation of any such reserves or the furnishing of any bond or other security, Borrower shall cause Mortgage Borrower to
promptly comply with any contested Legal Requirement or Insurance Requirement or pay any contested Imposition or Lien, and compliance
therewith or payment thereof shall not be deferred, if, at any time the Property or any portion thereof shall be, in Administrative Agent’s
sole good faith judgment, in imminent danger of being forfeited or lost or Administrative Agent is likely to be subject to civil or criminal
damages as a result thereof. If such action or proceeding is terminated or discontinued adversely to Mortgage Borrower, Borrower, upon
Administrative Agent’s written request, shall deliver to Administrative Agent reasonable evidence of Mortgage Borrower’s compliance
with such contested Tax, Imposition, Lien, Legal Requirements or Insurance Requirements, as the case may be.
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VIII. TRANSFERS, INDEBTEDNESS AND SUBORDINATE LIENS.
8.1 Restrictions
on Transfers. Unless such action is permitted by the provisions of this Article VIII and except for Permitted Encumbrances,
Borrower shall not cause or fail to prevent (i) a Transfer (directly or indirectly) of the Property or the Collateral or any legal
or beneficial interest in the foregoing, (ii) a Transfer (directly or indirectly) of any direct or indirect legal and/or beneficial
interest in Borrower, Mortgage Borrower or Sole Member, (iii) a transfer of all or any portion of Borrower’s interest in the
Loan or under any Loan Document, (iv) a change of Control of Borrower, Mortgage Borrower, Sole Member or any Guarantor, (v) the
incurrence by Borrower or Sole Member of any Indebtedness other than Permitted Indebtedness, and (vi) the incurrence by Mortgage
Borrower of any Indebtedness other than any permitted Mortgage Debt and permitted indebtedness under the Mortgage Loan Agreement. Notwithstanding
anything to the contrary contained herein, the Transfer (including, without limitation, by foreclosure, strict foreclosure, or the taking
of an assignment in lieu of foreclosure by Administrative Agent of the Collateral pledged pursuant to the Pledge Agreements or the Property
pursuant to the Mortgage) of direct and/or indirect interests in Mortgage Borrower or Sole Member to Administrative Agent shall be permitted
hereunder without Administrative Agent’s prior consent.
8.2 Sale
of Equipment. Borrower may cause or permit Mortgage Borrower to Transfer or dispose of FF&E and Equipment which is being replaced
or which is no longer necessary in connection with the development or operation of the Property provided that such Transfer or
disposal will not have a Material Adverse Effect on the value of the Property taken as a whole, will not materially impair the utility
of the Property, and will not result in a reduction or abatement of, or right of offset against, the Rents payable under any Lease, in
each case as a result thereof.
8.3 Immaterial
Easements. Borrower may, without the consent of Administrative Agent, cause or permit Mortgage Borrower to grant easements, restrictions,
covenants, reservations and rights of way in the ordinary course of business for access, water and sewer lines, telephone and telegraph
lines, electric lines or other utilities or other similar purposes, provided that no such encumbrance shall materially impair the
utility and operation of the Property or have a Material Adverse Effect.
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8.4 Indebtedness.
Borrower shall not incur (and shall not permit or cause Mortgage Borrower or Sole Member to), create or assume any Indebtedness without
the consent of Administrative Agent other than Permitted Indebtedness. Notwithstanding anything to the contrary set forth in this Agreement,
Borrower may not incur, create, assume, permit or suffer any Indebtedness, other than any the Mortgage Debt permitted hereunder, that
is secured (senior, subordinate or pari passu) by the Property or the Collateral.
8.5 Certain
Transfers.
8.5.1 Notwithstanding
the restrictions contained in Section 8.1, the following Transfers (but in each instance expressly excluding pledges or any
other form of encumbrances except Permitted Equity Pledges and Permitted Encumbrances) shall be permitted without the consent of Administrative
Agent or the Lenders.
(a) The
pledge of the Collateral to Administrative Agent as of the date hereof pursuant to the Pledge Agreements.
(b) The
Transfer (including, without limitation, by foreclosure, strict foreclosure, or the taking of an assignment in lieu of foreclosure) by
Administrative Agent of the Collateral pledged pursuant to the Pledge Agreements.
(c) The
mortgage of the Property to Mortgage Administrative Agent pursuant to any permitted Mortgage Loan Documents.
(d) The
mortgage of the Property to Administrative Agent pursuant to the Mortgage.
(e) An
IPO, provided that the IPO Conditions are satisfied.
(f) the
sale, transfer or issuance of stock in any securities listed and traded on the New York Stock Exchange, NASDAQ or any other nationally
recognized securities exchange, provided the applicable conditions set forth in Section 8.5.2 are satisfied.
(g) The
Transfer (but not the pledge or other encumbrance) of non-Controlling direct or indirect interests in Borrower, provided that,
(i) the applicable conditions set forth in Section 8.5.2 are satisfied and (ii) immediately after each such Transfer
is effectuated, (A) fifty-one percent (51%) in the aggregate, of the indirect ownership interests in Borrower, Sole Member and Mortgage
Borrower shall be held by Guarantor (and, for the avoidance of doubt, Guarantor shall at all times own an indirect ownership interest
in Borrower, Sole Member and Mortgage Borrower), (B) Guarantor continues to Control Borrower, Sole Member and Mortgage Borrower and
(C) there are then two (2) Key Persons who are officers of IQHQ Inc. and IQHQ Inc. remains directly or indirectly in Control
of Borrower (the requirements in clause (ii) above, the “Minimum Hold/Control Requirement”).
(h) Any
Permitted Non-Controlling Equity Pledge.
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(i) Provided
the applicable conditions set forth in Section 8.5.2 are satisfied, a change in Control of Guarantor in connection with a
merger of IQHQ, Inc. or a direct or indirect owner of IQHQ, Inc. with an Eligible Acquisition Entity or acquisition of all or
substantially all of the assets or interests in IQHQ, Inc. or a direct or indirect owner of IQHQ, Inc. by an Eligible Acquisition
Entity so long as (i) there are then two (2) Key Persons serving in the roles prescribed pursuant to the definition of such
term, (ii) Administrative Agent receives at least thirty (30) days’ prior written notice of such Transfer, (iii) Guarantor
shall remain IQHQ, LP, a Delaware limited partnership, and Guarantor shall continue to satisfy the Financial Covenants, own an indirect
ownership interest in Borrower, Sole Member and Mortgage Borrower and Control Borrower, Sole Member and Mortgage Borrower, (iv) Guarantor
and its subsidiaries continue to own substantially the same real estate assets as IQHQ, Inc., and its subsidiaries, and (v) Borrower
shall reimburse Administrative Agent and the Lenders for each of their reasonable out-of-pocket expenses actually incurred in connection
with their review of such Transfer.
(j) Each
Lease entered into in accordance with the Loan Documents.
8.5.2 As
a condition precedent to each Transfer permitted pursuant to clauses (f), and (i) of Section 8.5.1:
(a) (x) in
the case of a Permitted Transfer set forth in Section 8.5.1(g) only, to the extent a transferee (whether individually
or together with its Affiliates) acquires direct or indirect ownership interests in Borrower, Mortgage Borrower and Sole Member equal
to, or in excess of, the Ownership Threshold, Administrative Agent shall receive no less than ten (10) Business Days’ prior
written notice of such proposed Transfer and (y) in the case of a Permitted Transfer set forth in Section 8.5.1(f) only,
to the extent a transferee (whether individually or together with its Affiliates) acquires direct or indirect ownership interests in Borrower,
Mortgage Borrower and Sole Member equal to, or in excess of, the Ownership Threshold, Administrative Agent shall receive notice of such
Permitted Transfer not less than ten (10) Business Days’ thereafter,
(b) (x) in
the case of a Permitted Transfer set forth in Section 8.5.1(g) with respect to transferees (whether individually or together
with its Affiliates) acquiring direct or indirect interests in Borrower, Mortgage Borrower and Sole Member sufficient to exercise Control
over Borrower, Mortgage Borrower and Sole Member (whether individually or together with its Affiliates) or (y) in the case of a Permitted
Transfer set forth in Section 8.5.1(i), with respect to transferees (whether individually or together with its Affiliates)
acquiring direct or indirect interests in Borrower, Mortgage Borrower and Sole Member equal to or in excess of the Ownership Threshold
(provided such transferee (together with its Affiliates) owned less than the Ownership Threshold of the direct or indirect ownership
interests in Borrower, Mortgage Borrower and Sole Member as of the Closing Date), no transferee shall have been convicted of any felony
or other crime of moral turpitude, or be the subject of any ongoing criminal proceeding pertaining to any felony or other crime of moral
turpitude,
(c) neither
such transferee nor any of such transferee’s direct and/or indirect beneficial owners shall be a Prohibited Person with the result
that the investment by any such Person in Borrower, Mortgage Borrower, Sole Member or Guarantor, as applicable (whether directly or indirectly),
would be prohibited by law, or the Loan made by Administrative Agent would be in violation of law, or that the terms or conditions of
Section 5.1.28 or 5.1.30 would otherwise be violated,
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(d) (x) in
the case of a Permitted Transfer set forth in Section 8.5.1(g) with respect to transferees (whether individually or together
with its Affiliates) acquiring direct or indirect interests in Borrower, Mortgage Borrower and Sole Member sufficient to exercise Control
over Borrower, Mortgage Borrower and Sole Member (whether individually or together with its Affiliates) or (y) in the case of a Permitted
Transfer set forth in Section 8.5.1(i), with respect to transferees (whether individually or together with its Affiliates)
acquiring direct or indirect interests in Borrower, Mortgage Borrower and Sole Member equal to or in excess of the Ownership Threshold
(provided such transferee (together with its Affiliates) owned less than the Ownership Threshold of the direct or indirect ownership
interests in Borrower, Mortgage Borrower and Sole Member as of the Closing Date), such transferees shall not have filed for bankruptcy
(or other similar insolvency proceedings) within the seven (7) year period immediately prior to such Transfer,
(e) such
Transfer shall not cause any violation of Article IX, Section 5.1.28 or Section 5.1.30 of this Agreement,
(f) (x) in
the case of a Permitted Transfer set forth in Sections 8.5.1(g) and (i) only, Borrower and Sole Member shall have
prior to such Permitted Transfer, or, (y) in the case of a Permitted Transfer set forth in Sections 8.5.1(f) only, promptly
following Borrower obtaining knowledge of such Permitted Transfer Borrower and Sole Member shall have (i) satisfied Administrative
Agent’s and each Lender’s customary anti-money laundering and OFAC searches and “know your customer” requirements
with respect to such transferee (and Borrower shall be responsible for Administrative Agent’s and Lenders’ out-of-pocket costs
and expenses in connection therewith), and (ii) to the extent a transferee (whether individually or together with its Affiliates)
shall own direct or indirect ownership interests in Borrower, Mortgage Borrower and Sole Member equal to or in excess of the Ownership
Threshold immediately following such Transfer (provided such transferee and its Affiliates owned less than the Ownership Threshold
of direct or indirect ownership interests in Borrower, Mortgage Borrower and Sole Member as of the Closing Date), delivered (and Borrower
shall be responsible for Administrative Agent’s reasonable out-of-pocket costs and expenses actually incurred in connection therewith),
customary searches reasonably requested by Administrative Agent (including, without limitation, credit, judgment, lien, litigation, bankruptcy,
UCC, anti-money laundering, criminal and OFAC) reasonably acceptable to Administrative Agent with respect to such transferee,
(g) in
no event shall there be any Transfer of a direct interest in Borrower, Sole Member, or Mortgage Borrower,
(h) each
of Borrower, Mortgage Borrower and Sole Member shall continue to be a Single Purpose Entity,
(i) such
Transfer shall be conditioned upon Borrower’s and Sole Member’s ability to, after giving effect to the transfer in question,
(A) remake the representations contained herein relating to ERISA matters and the Patriot Act, OFAC and matters concerning Prohibited
Persons (and, upon Administrative Agent’s request, Borrower and Sole Member shall deliver to Administrative Agent an Officer’s
Certificate containing such updated representations effective as of the date of the consummation of the applicable transfer and an updated
“AML letter” in the same form and substance as the “AML letter” delivered by Borrower to Administrative Agent
in connection with the Closing of the Loan),
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(j) except
in the case of a Permitted Transfer set forth in Section 8.5.1(i), the Minimum Hold/Control Requirements shall remain satisfied,
(k) the
Minimum Equity Requirement remains satisfied, and
(l) such
Transfer does not materially violate the terms of the Project Documents.
Upon written request from Administrative Agent,
from time to time, Borrower shall promptly provide Administrative Agent a revised organizational chart reflecting any equity transfer
consummated in accordance with this Section 8.5 to the same level of detail as the organizational chart attached hereto as
Schedule XII.
8.5.3 Intentionally
Omitted.
8.5.4 Administrative
Agent’s Rights. If and to the extent specific approval standards or other requirements are not set forth herein, Administrative
Agent reserves the right to condition any consent required under this Article VIII upon (a) a modification of the terms
of this Agreement, the Note, the Mortgage or the other Loan Documents, to the extent necessary to effect Administrative Agent’s
consent required hereunder; (b) payment of all of Administrative Agent’s out-of-pocket expenses actually incurred in connection
with such transfer; or (c) such other conditions as Administrative Agent shall determine in its sole discretion. Administrative Agent
shall not be required to demonstrate any actual impairment of its security or any increased risk of default hereunder in order to declare
the Debt immediately due and payable upon a Transfer in violation of the Loan Documents. This provision shall apply regardless of whether
or not Administrative Agent has consented to any previous Transfer.
IX. SPECIAL PURPOSE PROVISIONS.
9.1 Single
Purpose Entity/Separateness. Until the Debt (other than contingent indemnity obligations) has been paid in full, Borrower hereby represents,
warrants and covenants that since the date of its formation and at all times on and after the date hereof and until such time as the Debt
(other than contingent indemnity obligations) shall be paid in full, that each of Borrower, Sole Member and Mortgage Borrower:
(a) has
been, is, and will continue be formed/organized solely for the purpose of (i) with respect to Mortgage Borrower, owning, developing,
constructing, maintaining, repairing, improving, managing, marketing, leasing, financing and operating the Property, it being understood
that Mortgage Borrower was originally formed for any legal purpose, but that Mortgage Borrower never engaged in any business prior to
its acquisition of the Property, (ii) with respect to Sole Member, owning one hundred percent (100%) of the legal and beneficial
interest in Mortgage Borrower, and (iii) with respect to Borrower, owning one hundred percent (100%) of the legal and beneficial
interest in Sole Member,
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(b) has
not engaged and will not engage in any business unrelated to (i) with respect to Mortgage Borrower, the ownership, demolition, development,
construction, maintenance, repair, improvement, management, marketing, leasing, financing, refinancing and operation of the Property (collectively,
the “Permitted Activities”), and will conduct its business as presently conducted and operated, (ii) with respect
to Sole Member, the ownership of one hundred percent (100%) of the legal and beneficial interest in Mortgage Borrower and (iii) with
respect to Borrower, the ownership of one hundred percent (100%) of the legal and beneficial interest in Sole Member,
(c) (i) in
the case of Mortgage Borrower, has not owned, does not own, and will not own any asset or property other than the Property and incidental
personal property necessary for the Permitted Activities, (ii) in the case of Sole Member, has not owned, does not own, and will
not own any asset or property other than one hundred percent (100%) of the legal and beneficial interest in Mortgage Borrower and (iii) in
the case of Borrower, has not owned, does not own, and will not own any asset or property other than one hundred percent (100%) of the
legal and beneficial interest in Sole Member,
(d) to
the fullest extent permitted by law, (i) has not engaged in, sought, or consented to and will not engage in, seek or consent to any
dissolution, winding up, termination, liquidation, consolidation or merger, division into two (2) or more limited liability companies
or other legal entities, or any allocation of assets among newly divided limited liability companies pursuant to a “plan of division”
under the Delaware Limited Liability Company Act, in whole or in part, and, (ii) except as otherwise expressly permitted by this
Agreement, has not engaged in, sought, or consented to and will not engage in, seek or consent to any asset sale, transfer of membership
interests, or amendment of its certificate of formation or Organizational Documents in a manner that amends, modifies, replaces, deletes
or supplements the provisions hereof,
(e) has
not failed and will not fail to correct any known misunderstanding regarding the separate identity of itself,
(f) will
not, without the unanimous consent of one hundred percent (100%) of the members of Borrower and the consent of each Independent Director,
commence any Bankruptcy Action or take or otherwise permit to occur any Bankruptcy Event,
(g) has
maintained and will maintain its books, records, financial statements, accounting records, bank accounts and other entity documents in
its own name and separate from any other Person; provided, however, that Borrower’s, Mortgage Borrower’s and
Sole Member’s assets may have been included in a consolidated financial statement of its Affiliates; provided that, if applicable,
(i) appropriate notation was made on such consolidated financial statements to indicate the separateness of each of Borrower, Mortgage
Borrower and Sole Member and such Affiliate(s) and to indicate that Borrower’s, Mortgage Borrower’s and Sole Member’s
assets and credit were not available to satisfy the debts and other obligations of such Affiliate(s) or any other Person, and (ii) such
assets were listed on Borrower’s own separate balance sheet, Mortgage Borrower’s own and separate balance sheet and Sole Member’s
own separate balance sheet,
(h) has
maintained and will maintain its books, records, resolutions and agreements as official records,
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(i) has
not commingled and will not commingle its funds or other assets with those of any other Person,
(j) has
not listed and will not list its assets on the financial statements of any other Person; provided, however, that Borrower’s
and Sole Member’s assets may have been included in a consolidated financial statement of its Affiliates; provided that, if
applicable, (i) appropriate notation were made on such consolidated financial statements to indicate the separateness of Borrower,
Mortgage Borrower and Sole Member and such Affiliate and to indicate that Borrower’s, Mortgage Borrower’s and Sole Member’s
assets and credit were not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (ii) such
assets were listed on Borrower’s own separate balance sheet, Mortgage Borrower’s own separate balance sheet and Sole Member’s
own separate balance sheet,
(k) has
filed and will file its own tax returns (to the extent required by Legal Requirements to file any tax returns), has not filed and will
not file a consolidated federal income tax return with any other Person, and will continue to be a disregarded entity or a partnership
for U.S. federal income tax purposes,
(l) has
been, is, and intends to remain solvent, and has paid and will pay its own debts and liabilities, including all Property-related expenses,
out of its own funds and assets (to the extent of such funds and assets, it being acknowledged by Administrative Agent that the foregoing
shall in no event require any contribution of equity into Borrower, Mortgage Borrower or Sole Member) as the same shall become due,
(m) (i) will
do or cause to be done, all things necessary to observe all limited liability company formalities and preserve its existence and good
standing, (ii) will not terminate or fail to comply with the provisions of its Organizational Documents with respect to any of the
matters set forth in this Article IX, and (iii) without the prior written consent of Administrative Agent, will not,
amend, modify or otherwise change any of its Organizational Documents with respect to any of the matters set forth in this Article IX,
(n) (i) with
respect to Borrower, has and will have no Indebtedness other than the Permitted Indebtedness, (ii) with respect to Sole Member, has
and will have no Indebtedness other than trade payables in the ordinary course of business not to exceed $10,000 at any time, and (iii) with
respect to Mortgage Borrower, has and will have no Indebtedness other than the permitted indebtedness under any permitted Mortgage Loan
Agreement. No Indebtedness, other than the Debt and any permitted Mortgage Loan Debt, may be secured (senior, subordinate or pari passu)
by the Property,
(o) has
not assumed, guaranteed or become obligated for or held out its credit and will not assume, guarantee, become obligated for or hold out
its credit, as being available to satisfy the debts or obligations of any other Person,
(p) has
not acquired and will not acquire obligations or securities of Mortgage Borrower, Sole Member or any other Person,
(q) has
allocated and will allocate fairly and reasonably shared expenses, including without limitation, shared office space, and, to the extent
reasonably necessary in the operation of its business, has maintained and utilized and will maintain and utilize separate stationery,
invoices and checks bearing its own name,
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(r) has
not pledged and will not pledge its assets for the benefit of any Person other than Secured Party,
(s) has
held and identified itself and will hold itself out to the public as a legal entity separate and distinct from any other Person, and has
conducted and shall conduct business under its own name,
(t) has
not made and will not make loans to any Person,
(u) has
not identified and will not identify itself or any of its Affiliates as a division or part of the other; provided, however,
that Borrower’s, Sole Member’s and Mortgage Borrower’s assets may have been included in a consolidated financial statement
of its Affiliates; provided that, if applicable, (i) appropriate notation were made on such consolidated financial statements
to indicate the separateness of Borrower, Sole Member, Mortgage Borrower and such Affiliate and to indicate that Borrower’s and
Mortgage Borrower’s assets and credit were not available to satisfy the debts and other obligations of such Affiliates or any other
Person, and (ii) such assets were listed on Borrower’s own separate balance sheet and Sole Member’s and Mortgage Borrower’s
own separate balance sheet,
(v) except
as expressly permitted under the Loan Documents and except for agreements that are no longer in effect, has not entered and will not enter
into any contract or agreement with Mortgage Borrower, Sole Member or any other Affiliate except in the ordinary course of its business
and on terms which are no less favorable to it than would be obtained in a comparable arms-length transaction with an unrelated third
party and which are fully disclosed to Administrative Agent in writing in advance or that are otherwise approved by Administrative Agent
in its sole and absolute discretion,
(w) has
paid and will pay the salaries of its own employees (if any) from its own funds (to the extent of such funds and assets, it being acknowledged
by Administrative Agent that the foregoing shall in no event require any contribution of equity into Borrower, Mortgage Borrower or Sole
Member) and has maintained and intends to maintain a sufficient number of employees (if any) in light of its contemplated business operations,
(x) has
maintained and, to the extent cash flow from the Property is sufficient, will maintain adequate capital for the normal obligations reasonably
foreseeable in a business of its size and character and in light of its contemplated business operations, and shall not make any distributions
to Mortgage Borrower, Sole Member or any other Affiliate that would cause Borrower, Sole Member or Mortgage Borrower to fail to maintain
such adequate capital,
(y) has
not permitted and will not permit any Affiliate independent access to its bank accounts,
(z) will
not have any obligation to indemnify Mortgage Borrower, Sole Member or any other Affiliate unless such an obligation is fully subordinated
to the Debt and, to the fullest extent permitted by law, will not constitute a claim against such entity in the event that cash flow in
excess of the amount required to pay the Indebtedness is insufficient to pay such indemnity obligation,
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(aa) (i) in
the case of Mortgage Borrower, has not owned and will not own any subsidiary, and has not made and will not make any investment in any
other Person, (ii) in the case of Sole Member, has not owned and will not own any subsidiary other than Mortgage Borrower, and has
not made and will not make any investment in any other Person and (iii) in the case of Borrower, has not owned and will not own any
subsidiary other than Sole Member, and has not made and will not make any investment in any other Person, and
(bb) has
and will hold all of its assets in its own name and has maintained and will maintain its assets in such a manner that it will not be costly
or difficult to segregate, ascertain or identify its individual assets from those of any other Person.
Notwithstanding anything to the contrary contained
in Article IX, (i) in no event shall Borrower be treated as breaching the provisions of this Article IX solely
as a result of being treated as an entity disregarded from its owner for income tax purposes, and (ii) nothing contained in this
Article IX shall require any direct or indirect member of Borrower or Sole Member to make a capital contribution or loan to
Borrower or Sole Member.
9.1.2 From
the Closing Date and until the payment in full of the Debt, Borrower hereby covenants and agrees with Administrative Agent and Lenders
that:
(a) The
Organizational Documents of Borrower, Sole Member and Mortgage Borrower shall provide that the business and affairs of Borrower, Sole
Member and Mortgage Borrower, as applicable, shall be managed by its sole member, and at all times there shall be at least one (1) duly
appointed individual manager (each, an “Independent Director”), who (i) has at least three (3) years prior
employment experience and continues to be employed as an independent director, independent manager or independent member by CT Corporation,
Corporation Service Company, National Registered Agents, Inc., Wilmington Trust Company, Stewart Management Company, Lord Securities
Corporation or, if none of those companies is then providing professional independent directors, independent managers and independent
members, another nationally-recognized company that provides such services and which is approved by Administrative Agent; (ii) is
not an independent director or manager of more than two (2) Affiliates of Borrower, Sole Member or Mortgage Borrower; and (iii) is
not, and has never been, and will not, while serving as an Independent Director be, any of the following: (A) a member, partner,
equityholder, manager, director, officer or employee of Borrower, Sole Member or Mortgage Borrower or any of its equityholders or Affiliates
(other than as an Independent Director of Borrower, Sole Member or Mortgage Borrower, as applicable, or an Affiliate of Borrower, Sole
Member or Mortgage Borrower, as applicable, that is not in the direct chain of ownership of Borrower and that is required by a creditor
to be a single purpose bankruptcy remote entity, provided that such Independent Director is employed by a company that routinely
provides professional independent directors or managers in the ordinary course of its business), (B) a creditor, supplier or service
provider (including provider of professional services) to Borrower, Sole Member or Mortgage Borrower or any of its equityholders or Affiliates
(other than a nationally-recognized company that routinely provides professional independent directors and other corporate services to
Borrower, Sole Member or Mortgage Borrower, as applicable, or any of its Affiliates in the ordinary course of its business), (C) a
family member of any such member, partner, equityholder, manager, director, officer, employee, creditor, supplier or service provider,
or (D) a Person Controlling or under Common Control with any of (A), (B) or (C) above. A natural person who satisfies the
foregoing definition other than clause (iii) shall not be disqualified as a result of clause (iii)(A) or (iii)(B) by
reason of being, having been or becoming an Independent Director of a “single purpose entity” affiliated with Borrower, Sole
Member or Mortgage Borrower, as applicable; provided that the fees or other compensation that such individual earns by serving
as an Independent Director of one or more Affiliates of Borrower, Sole Member or Mortgage Borrower in any given year constitute, in the
aggregate, less than five percent (5%) of such individual’s income for such year. The Organizational Documents of Borrower, Sole
Member and Mortgage Borrower shall provide that no Independent Director of Borrower, Sole Member or Mortgage Borrower may be removed or
replaced without Cause, and unless Borrower provides Lender with not less than three (3) Business Days’ prior notice of (1) any
proposed removal of any Independent Director, together with a statement as to the reasons for such removal, and (2) the identity
of the proposed replacement Independent Director, together with a certification that such replacement satisfies the requirements set forth
in the Organizational Documents of Borrower, Sole Member or Mortgage Borrower, as applicable, relating to an Independent Director. In
addition, the Organizational Documents of Borrower, Sole Member and Mortgage Borrower shall provide an express acknowledgment that Secured
Party is an intended third-party beneficiary of the “special purpose” and “separateness” provisions of such Organizational
Documents. As used in this paragraph, the term “single purpose entity” shall mean a Person whose Organizational Documents
contain, and who covenants that such Person shall comply or cause compliance with, provisions substantially similar to those set forth
in this Article IX.
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(b) The
Organizational Documents of Borrower, Sole Member and Mortgage Borrower shall provide that except for duties to Borrower, Sole Member
or Mortgage Borrower, as applicable, as set forth in the Organizational Documents (including duties to the member and Borrower’s,
Sole Member’s and Mortgage Borrower’s creditors solely to the extent of their respective economic interests in Borrower, Sole
Member or Mortgage Borrower, as applicable, but excluding (i) all other interests of the members, (ii) the interests of other
Affiliates of Borrower, Sole Member and Mortgage Borrower and (iii) the interests of any group of Affiliates of which Borrower, Sole
Member and Mortgage Borrower is a part), the Independent Director shall not have any fiduciary duties to the member, any officer or any
other Person bound by Borrower’s, Sole Member’s or Mortgage Borrower’s Organizational Documents, as applicable; provided,
however, the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing. The Organizational
Documents of Borrower, Sole Member and Mortgage Borrower shall provide that to the fullest extent permitted by law, including Section 18-1101(e) of
the Delaware Limited Liability Company Act, an Independent Director shall not be liable to Borrower, Sole Member or Mortgage Borrower
the member or any other Person bound by Borrower’s, Sole Member’s or Mortgage Borrower’s Organizational Documents for
breach of contract or breach of duties (including fiduciary duties), unless the Independent Director acted in bad faith or engaged in
willful misconduct. The Organizational Documents of Borrower, Sole Member and Mortgage Borrower shall provide that all right, power and
authority of the Independent Director shall be limited to the extent necessary to exercise those rights and perform those duties specifically
set forth in Borrower’s, Sole Member’s or Mortgage Borrower’s Organizational Documents, as applicable. The Organizational
Documents of Borrower, Sole Member and Mortgage Borrower shall provide that notwithstanding any other provision of Borrower’s, Sole
Member’s or Mortgage Borrower’s Organizational Documents to the contrary, each Independent Director, in its capacity as an
Independent Director, may only act, vote or otherwise participate in those matters referred to in [Section 9(d)(iii) or
9(d)(v)(F)] of Borrower’s, Sole Member’s or Mortgage Borrower’s Organizational Documents or as otherwise specifically
required by the applicable Organizational Documents, and such Independent Director’s act, vote or other participation shall not
be required for the validity of any action taken by the sole member of Borrower, Sole Member or Mortgage Borrower unless, pursuant to
the provisions of [Section 9(d)(iii) or 9(d)(v)(F)] of Borrower’s, Sole Member’s or Mortgage Borrower’s
Organizational Documents or as otherwise specifically provided in the applicable Organizational Documents, such action would be invalid
in the absence of the affirmative vote or consent of such Independent Director.
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(c) The
Organizational Documents of Borrower, Sole Member and Mortgage Borrower shall provide that the members of Borrower, Sole Member and Mortgage
Borrower shall not take any action which, under the terms of any Organizational Documents, requires a unanimous vote of the members of
Borrower, Sole Member and Mortgage Borrower unless, at the time of such action, there shall be at least one (1) Independent Director
(and such Independent Director has participated in such vote). The Organizational Documents of Borrower, Sole Member and Mortgage Borrower
shall provide that Borrower, Sole Member and Mortgage Borrower shall not (and Borrower, Sole Member and Mortgage Borrower agrees that
it shall not), without the unanimous consent of its members, including the consent of each Independent Director, declare or effectuate
a moratorium on the payment of any obligations, commence any Bankruptcy Action or take or otherwise permit to occur any Bankruptcy Event.
The Organizational Documents of Borrower, Sole Member and Mortgage Borrower shall further provide that, when voting with respect to any
of the matters set forth in the immediately preceding sentence of this Section 9.1.1(c), the Independent Director shall consider
only the interests of Borrower, Sole Member and Mortgage Borrower including its creditors, to the fullest extent permitted by law.
(d) The
Organizational Documents of Borrower, Sole Member and Mortgage Borrower shall provide that, so long as any portion of the Debt remains
outstanding, upon the occurrence of any event that causes the last remaining member of Borrower, Sole Member or Mortgage Borrower (in
any case a “Member”) to cease to be a member of Borrower, Sole Member or Mortgage Borrower, as applicable (other than
(i) upon an assignment by the Member of all of its limited liability company interests in Borrower, Sole Member or Mortgage Borrower,
as applicable, and the admission of the transferee, if permitted pursuant to the Organizational Documents of Borrower, Sole Member or
Mortgage Borrower, as applicable and the Loan Documents, or (ii) the resignation of the Member and the admission of an additional
member of Borrower, Sole Member or Mortgage Borrower, as applicable, if permitted pursuant to the Organizational Documents of Borrower,
Sole Member or Mortgage Borrower, as applicable, and the Loan Documents), each of the Persons acting as an Independent Director of Borrower,
Sole Member or Mortgage Borrower, as applicable, shall, without any action of any Person and simultaneously with the Member ceasing to
be a member of Borrower, Sole Member or Mortgage Borrower, as applicable, automatically be admitted as a member of Borrower (a “Special
Member”) and shall preserve and continue the existence of Borrower, Sole Member or Mortgage Borrower, as applicable, without
dissolution. The Organizational Documents of Borrower, Sole Member and Mortgage Borrower shall further provide that for so long as any
portion of the Debt is outstanding, (A) no Special Member may resign or transfer its rights as a Special Member unless (1) a
successor Special Member has been admitted to Borrower, Sole Member or Mortgage Borrower, as applicable, as a Special Member, (2) such
successor Special Member has also accepted its appointment as an Independent Director, (B) Special Member shall be a member of Borrower,
Sole Member or Mortgage Borrower, as applicable, that has no interest in the profits, losses and capital of Borrower, Sole Member or Mortgage
Borrower, as applicable, and has no right to receive any distributions of the assets of Borrower, Sole Member or Mortgage Borrower, as
applicable, (C) Special Member, in its capacity as Special Member, may not bind Borrower, Sole Member or Mortgage Borrower, as applicable
(provided that such prohibition shall not limit the obligations of Special Member in its capacity as Independent Director to vote
on such matters set forth above in Section 9.1.1(c)) and (D) Special Member shall automatically cease to be a member
of Borrower, Sole Member or Mortgage Borrower, as applicable, upon the admission to Borrower, Sole Member or Mortgage Borrower, as applicable,
of the first substitute member.
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(e) The
Organizational Documents of Borrower, Sole Member and Mortgage Borrower, as applicable, shall provide that, as long as any portion of
the Debt remains outstanding, except as expressly permitted pursuant to the terms of the Loan Documents, (i) the Member may not resign,
and (ii) no additional member shall be admitted to Borrower, Sole Member or Mortgage Borrower (except, with respect to Sole Member
only, in accordance with Section 8.5.1(b)). As applicable.
(f) The
Organizational Documents of Borrower, Sole Member and Mortgage Borrower, as applicable, shall provide that, as long as any portion of
the Debt remains outstanding: (i) Borrower, Sole Member or Mortgage Borrower, as applicable, shall be dissolved, and its affairs
shall be wound up, only upon the first to occur of the following: (A) the termination of the legal existence of the last remaining
member of Borrower. Sole Member or Mortgage Borrower or the occurrence of any other event which terminates the continued membership of
the last remaining member of Borrower, Sole Member or Mortgage Borrower in Borrower, Sole Member or Mortgage Borrower, as applicable,
unless the business of Borrower, Sole Member or Mortgage Borrower, as applicable, is continued in a manner permitted by its operating
agreement or the Delaware Limited Liability Company Act (the “Act”), or (B) the entry of a decree of judicial
dissolution under Section 18-802 of the Act; (ii) upon the occurrence of any event that causes the last remaining member of
Borrower, Sole Member or Mortgage Borrower, as applicable, to cease to be a member of Borrower, Sole Member or Mortgage Borrower, as applicable
(other than (A) upon an assignment by Member of all of its limited liability company interests in Borrower, Sole Member or Mortgage
Borrower and the admission of the transferee, if permitted pursuant to the Organizational Documents of Borrower, Sole Member or Mortgage
Borrower and the Loan Documents, or (B) the resignation of Member and the admission of an additional member of Borrower, Sole Member
or Mortgage Borrower, as applicable, if permitted pursuant to the Organizational Documents of Borrower, Sole Member or Mortgage Borrower,
as applicable, and the Loan Documents), to the fullest extent permitted by law, the personal representative of such last remaining member
shall be authorized to, and shall, within ninety (90) days after the occurrence of the event that terminated the continued membership
of such member in Borrower, Sole Member or Mortgage Borrower, as applicable, agree in writing (1) to continue the existence of Borrower,
and (2) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of
Borrower, Sole Member or Mortgage Borrower, as applicable, effective as of the occurrence of the event that terminated the continued membership
of such member in Borrower, Sole Member or Mortgage Borrower, as applicable; (iii) the bankruptcy of Member or a Special Member shall
not cause Member or Special Member to cease to be a member of Borrower, Sole Member or Mortgage Borrower, as applicable, and upon the
occurrence of such event, the business of Borrower, Sole Member or Mortgage Borrower shall continue without dissolution; (iv) in
the event of the dissolution of Borrower, Sole Member or Mortgage Borrower, Borrower, Sole Member or Mortgage Borrower, as applicable,
shall conduct only such activities as are necessary to wind up its affairs (including the sale of its assets and properties in an orderly
manner), and its assets and properties shall be applied in the manner, and in the order of priority, set forth in Section 18-804
of the Act; and (v) to the fullest extent permitted by applicable law, each of Member and Special Members shall irrevocably waive
any right or power that they might have to cause Borrower, Sole Member or Mortgage Borrower, as applicable, or any of its assets or properties
to be partitioned, to cause the appointment of a receiver for all or any portion of the assets or properties of Borrower, Sole Member
or Mortgage Borrower, as applicable, to compel any sale of all or any portion of the assets or properties of Borrower, Sole Member or
Mortgage Borrower, as applicable, pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity
to cause the dissolution, liquidation, winding up or termination of Borrower, Sole Member or Mortgage Borrower, as applicable.
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9.1.3 Borrower
shall cause Mortgage Borrower and Sole Member to comply with all of the applicable terms and provisions of Article IX.
X. MAINTENANCE OF PROPERTY; ALTERATIONS.
10.1 Maintenance
of Property. Following Component Substantial Completion, Borrower shall cause Mortgage Borrower to keep and maintain, or cause to
be kept and maintained, the Property (or such applicable Component), and every part thereof in good condition and repair, subject to ordinary
wear and tear and Casualty, and, subject to Excusable Delays and the provisions of this Agreement with respect to damage or destruction
caused by a Casualty or Takings, shall not permit or commit any waste, impairment, or deterioration of any portion of the Property in
any material respect, provided that Borrower shall not be deemed to be in violation of this Section 10.1 due to the
acts or omissions of any Tenant so long as such Tenant is not an Affiliate of Borrower and Borrower is causing Mortgage Borrower to use
Commercially Reasonable Efforts to enforce the applicable obligations of such Tenant under its Lease. Subject to Section 10.2,
Borrower shall not cause or permit Mortgage Borrower to remove or demolish any Improvement on the Property except as the same may be necessary
in connection with the Required Improvements or an Alteration or a restoration in connection with a Casualty or Taking, or as otherwise
permitted herein, in each case in accordance with the terms and conditions hereof.
10.2 Conditions
to Alteration. Other than as provided herein with respect to the Required Improvements, and provided that no Event of Default
shall have occurred and be continuing hereunder, following Component Substantial Completion, Borrower shall have the right to cause or
permit Mortgage Borrower to undertake any alteration, improvement, demolition or removal of the Property (or such applicable Component),
or any portion thereof (any such alteration, improvement, demolition or removal, an “Alteration”) so long as (i) Borrower
provides Administrative Agent with not less than thirty (30) days’ prior written notice of any Material Alteration, (ii) such
Alteration is undertaken in accordance with the applicable provisions of this Agreement and the other Loan Documents or is otherwise required
to be undertaken pursuant to applicable Legal Requirements, (iii) any Material Alteration shall be conducted under the supervision
of an Independent Architect and, in connection with any Material Alteration, Borrower shall deliver to Administrative Agent, for approval
by Administrative Agent, detailed plans and specifications and cost estimates therefor, prepared by such Independent Architect, and (iv) in
the case of any Material Alteration, Administrative Agent shall have given its written consent thereto prior to the commencement thereof
(which consent Administrative Agent agrees not to unreasonably withhold or delay, but which may be subject to Administrative Agent’s
customary conditions with respect to Alterations (including for example, evidence of required insurance coverage, reasonably satisfactory
evidence that Borrower or Mortgage Borrower has sufficient funds for the requested Alterations and that such funds shall be made available
for such Alterations and the reimbursement of Administrative Agent’s out-of-pocket review costs and compliance with applicable law).
If the cost of any Material Alteration is likely to exceed the Material Alteration Threshold, then Borrower shall cause Mortgage Borrower
to promptly deliver to Mortgage Administrative Agent as security for the payment of the amount in excess of the Material Alteration Threshold
and as additional security for Borrower’s obligations under the Loan Documents and Mortgage Borrower’s obligations under the
Mortgage Loan Documents, any of the following: (x) Cash, (y) letters of credit acceptable to Administrative Agent in its sole
and absolute discretion or (z) a completion bond, together with a completion guaranty, in each case, reasonably acceptable to Administrative
Agent. The plans and specifications delivered in accordance with this Section 10.2 may be revised at any time and from time
to time by such Independent Architect provided that material revisions of such plans and specifications are approved by Administrative
Agent, such approval not to be unreasonably withheld, conditioned or delayed. All work done in connection with any Alteration shall be
performed with due diligence in a good and workmanlike manner, subject to Excusable Delay. All materials used in connection with any Alteration
shall comply with applicable Legal Requirements and Insurance Requirements and shall not be less than the standard of quality of the materials
currently used at the Property or contemplated by the Plans and Specifications.
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XI. BOOKS AND RECORDS, FINANCIAL STATEMENTS, REPORTS AND OTHER INFORMATION.
11.1 Books
and Records. Borrower shall (and shall cause Mortgage Borrower to) keep and maintain on a Fiscal Year basis proper books and records
separate from any other Person (other than for income tax purposes), in which accurate and complete entries shall be made of all dealings
or transactions of or in relation to the Note, the Property, the Collateral and the business and affairs of Borrower and Mortgage Borrower
relating to the Property and the Collateral which shall reflect all items of income and expense in connection with the operation on an
individual basis of the Property and in connection with any services, equipment or furnishings provided in connection with the operation
of the Property, in accordance with the Approved Accounting Method; provided, however, that Borrower’s assets may
be included in a consolidated financial statement of its Affiliates; provided that, if applicable, (i) appropriate notation
is made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliate(s) and to indicate
that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate(s) or any
other Person, and (ii) such assets are listed on Borrower’s own separate balance sheet. Administrative Agent and its authorized
representatives shall have the right during normal business hours and upon reasonable prior notice (not less than one (1) Business
Day) to examine the books, records and accounts of Borrower and Mortgage Borrower relating to the Collateral and the operation of the
Property and to make such copies or extracts thereof as Administrative Agent may require. After the occurrence and during the continuance
of an Event of Default, Borrower shall pay any out-of-pocket costs and expenses actually incurred by Administrative Agent or any Lender
to examine Borrower’s or Mortgage Borrower’s accounting records with respect to the Property and the Collateral, as Administrative
Agent or any Lender shall determine to be necessary or appropriate in the protection of Administrative Agent’s and each Lender’s
interest.
11.2 Financial
Statements.
11.2.1 Quarterly
Reporting. Not later than forty-five (45) days following the end of each Calendar Quarter Period, Borrower shall deliver to Administrative
Agent (i) unaudited financial statements for each Guarantor prepared in accordance with the Approved Accounting Method, which statements
shall include a footnote detailing the amount of any Uncalled Capital Commitments (as such term is defined in the Recourse Guaranty) (ii) unaudited
financial statements of Borrower and Mortgage Borrower, internally prepared in accordance with the Approved Accounting Method, including
a balance sheet and, following Component Substantial Completion of any Component, profit and loss statement as of the end of such quarter
and for the corresponding quarter of the previous year, and an operating statement (including but not limited to, a balance sheet and
a statement of revenues and expenses) for the year to date and for such Calendar Quarter Period, and a comparison of the year to date
results with (x) the results for the same period of the previous year and (y) the Annual Operating Budget for such period and
the Fiscal Year, (iii) intentionally omitted, (iv) following Component Substantial Completion of any Component, quarterly and
year-to-date operating statements (including capital expenditures) prepared for each calendar quarter, noting net operating income, gross
income and operating expenses, and other information necessary and sufficient to fairly represent the financial position and results of
operation of the Property during such calendar quarter, and containing a comparison of budgeted income and expenses and the actual income
and expenses, and (v) a calculation reflecting the Debt-Service Coverage Ratio (Aggregate), Debt Yield (Aggregate) and the applicable
loan-to-value ratio for the prior twelve (12) month period. Such statements with respect to Borrower and Mortgage Borrower for each quarter
shall be accompanied by an Officer’s Certificate certifying to the signer’s knowledge, (A) that such statements fairly
represent the financial condition and results of operations of Borrower and Mortgage Borrower, (B) that as of the date of such Officer’s
Certificate, no Default or Event of Default exists under this Agreement, the Note or any other Loan Document or, if so, specifying the
nature and status of each such Default and the action then being taken by Borrower or proposed to be taken to remedy such Default and
(C) that as of the date of each Officer’s Certificate, no litigation exists involving Borrower, Mortgage Borrower, Sole Member,
the Collateral or the Property in which all or substantially all of the potential liability is not covered by insurance, or, if so, specifying
such litigation and the actions being taking in relation thereto. Such financial statements shall contain such other information as shall
be reasonably requested by Administrative Agent for purposes of calculations to be made by Administrative Agent pursuant to the terms
hereof.
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11.2.2 Annual
Reports.
(a) Not
later than one hundred twenty (120) days after the end of each Fiscal Year of Borrower’s operations, Borrower shall deliver to Administrative
Agent unaudited financial statements covering the Property, the Collateral, Mortgage Borrower, Sole Member and Borrower. Such statements
shall contain statements of profit and loss for Borrower, Mortgage Borrower, Sole Member, the Collateral and the Property and include
a balance sheet as of the end of such year stating in comparative form the figures for the previous fiscal year and the Annual Operating
Budget for such fiscal year, as well as occupancy statistics for the Property, annual net operating income, net cash flow, gross income
and operating expenses. Such annual financial statements of Borrower, Sole Member and Mortgage Borrower shall also be accompanied by an
Officer’s Certificate in the form required pursuant to Section 11.2.1. Borrower (or its sole beneficial owner for federal
income tax purposes) shall submit to Administrative Agent copies of all federal income tax returns within thirty (30) days such returns
were filed with the relevant taxing authority.
(b) Not
later than one hundred twenty (120) days after the end of each calendar year, Borrower shall cause each Guarantor to deliver to Administrative
Agent audited financial statements certified by an Independent Accountant in accordance with the Approved Accounting Method covering such
Guarantor, in the same form, substance and scope as the financial statements delivered to Administrative Agent on or prior to the Closing
Date. Such audited financial statements of Guarantor shall include a footnote detailing the amount of any Uncalled Capital Commitments
(as such term is defined in the Recourse Guaranty). Borrower shall cause each Guarantor to submit to Administrative Agent copies of all
federal income tax returns within thirty (30) days such returns were filed with the relevant taxing authority.
(c) Intentionally
omitted.
(d) Not
later than one hundred twenty (120) days after and as of the end of each fiscal year and at any other time upon the reasonable request
of Administrative Agent, Borrower shall provide an Officer’s Certificate certifying as to Borrower’s continued compliance
with the terms of this Article XI along with additional evidence of Borrower’s compliance as Administrative Agent may
reasonably request from time to time.
11.2.3 Monthly
Reports. From and after the Closing Date, Borrower shall deliver to Administrative Agent, not later than fifteen (15) Business Days
after the end of each calendar month, a monthly summary of all leasing activity, in form acceptable to Administrative Agent. With respect
to each Component, commencing in the first calendar month occurring after the date a Tenant has accepted possession of its premises within
such Component, not later than fifteen (15) Business Days after the end of each calendar month, Borrower shall also deliver to Administrative
Agent the following:
(a) monthly
and year-to-date unaudited statements of revenues and expenses for the Property (or such applicable Components) and an operating statement
(including but not limited to, a statement of revenues and expenses, but not including a balance sheet) for the year to date and for such
calendar month, accompanied by an Officer’s Certificate certifying that the same is true, correct and complete as of its stated
date, and showing actual sources and uses of cash during the preceding calendar month;
(b) all
operating statements prepared by Manager under any applicable Management Agreement (excluding the Affiliate Manager under the Affiliate
Management Agreement); and
(c) (i) a
rent roll in form acceptable to Administrative Agent, (ii) a delinquency report setting forth any arrearages under the Leases, and
(iii) a report setting forth the identity of each Tenant, if any, for which Borrower and/or Mortgage Borrower has accepted rent more
than one (1) month in advance and the amount of such rent accepted by Borrower and/or Mortgage Borrower.
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11.2.4 Capital
Expenditures Summaries. Borrower shall, within one hundred twenty (120) days after the end of each calendar year during the term of
the Note, deliver to Administrative Agent, if applicable, an annual summary of any and all capital expenditures made at the Property during
the preceding twelve (12) month period (excluding in connection with the construction of the Required Improvements).
11.2.5 Management
Agreement. Borrower shall deliver to Administrative Agent, within fifteen (15) Business Days of the receipt thereof by Borrower or
Mortgage Borrower, a copy of all reports prepared by Manager pursuant to the applicable Management Agreement, including, without limitation,
the Annual Operating Budget and any inspection reports.
11.2.6 Annual
Operating Budget. At least thirty (30) days prior to Substantial Completion of the Building One Component, and thereafter, at least
thirty (30) days prior to the end of each Fiscal Year, Borrower shall deliver to Administrative Agent the Annual Operating Budget for
Administrative Agent’s approval. No such Annual Operating Budget shall be effective without the prior written consent of Administrative
Agent. In the event that Administrative Agent objects to any proposed Annual Operating Budget, Borrower shall promptly revise such Annual
Operating Budget and resubmit the same to Administrative Agent in accordance with the process described in this Section 11.2.6
until Administrative Agent approves the Annual Operating Budget. Until such time that Administrative Agent approves a proposed Annual
Operating Budget, then (i) those portions of the proposed Annual Operating Budget which have been approved by Administrative Agent
in accordance with the foregoing shall apply and (ii) with respect to any other portions of the proposed Annual Operating Budget,
the prior Annual Operating Budget shall apply with an increase in the amount equal to, with respect to Impositions, Insurance Premiums
and utilities and, the actual increase in such items, and with respect to each other item in such prior Annual Operating Budget, two percent
(2.0%) of the amount of each such item in such prior Annual Operating Budget. Neither Borrower, Mortgage Borrower nor any Manager shall
change or modify the Annual Operating Budget that has been approved by Administrative Agent without the prior written consent of Administrative
Agent.
11.2.7 Labor
Agreements. At all times that any Borrower Party or Manager or any Affiliate of the foregoing is a party to a Labor Agreement in respect
of the Project, within ten (10) Business Days of the close of each quarter, Borrower shall (and shall cause each other Borrower Party
to) certify as to the payment of contributions and other payments required under Labor Agreements (including the Project Labor Agreements)
by Mortgage Borrower or Manager or any Affiliate of the foregoing or on their behalf in connection with the employees employed by Mortgage
Borrower or Manager or any Affiliate of the foregoing in connection with the operation, development, or construction of the Property.
11.2.8 Other
Information. Subject to the Additional Disclosure Conditions, Borrower shall, promptly following written request by Administrative
Agent, furnish or cause to be furnished to Administrative Agent, in such manner and in such detail as may be reasonably requested by Administrative
Agent, such additional information as may be reasonably requested by Administrative Agent with respect to the Property or any Borrower
Party. Administrative Agent reserves the right to distribute all information delivered to Administrative Agent pursuant to this Article XI
to the Lenders, subject to Section 19.18.
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XII. THE ADMINISTRATIVE AGENT.
12.1 Appointment
and Authorization. Each Lender irrevocably appoints and authorizes Administrative Agent to take such action as Administrative Agent
on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Administrative Agent by
the terms hereof or thereof, together with all such powers as are reasonably incidental thereto.
12.2 Administrative
Agent and Affiliates. A Lender serving as Administrative Agent hereunder shall have the same rights and powers in its capacity as
a Lender as any other Lender and may exercise the same as though it were not Administrative Agent. Administrative Agent and its Affiliates
may accept deposits from, lend money to, and generally engage in any kind of business with Borrower or any subsidiary or Affiliate of
Borrower as if it were not Administrative Agent hereunder.
12.3 Action
by Administrative Agent. The obligations of Administrative Agent hereunder are only those expressly set forth herein. Without limiting
the generality of the foregoing, Administrative Agent shall not be required to take any action with respect to any Default or Event of
Default, except as expressly provided in Article XVII. Without limiting the generality of the foregoing, (a) Administrative
Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred
and is continuing, (b) Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated hereby that Administrative Agent is required to exercise in writing
as directed by the Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided
in any co-lender agreement), and (c) except as expressly set forth herein, Administrative Agent shall not have any duty to disclose,
and shall not be liable for the failure to disclose, any information relating to Borrower or any of its subsidiaries or Affiliates that
is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity.
12.4 Consultation
with Experts. Administrative Agent may consult with legal counsel (which may be counsel for Borrower), independent public accountants
and other experts selected by it and shall not be liable to any Lender for any action taken or omitted to be taken by it in good faith
in accordance with the advice of such counsel, accountants or experts.
12.5 Liability
of Administrative Agent. Neither Administrative Agent nor any of its Affiliates nor any of their respective directors, officers, agents
or employees shall be liable to any Lender for any action taken or not taken by it in connection herewith (i) with the consent or
at the request of the Lenders or, where required by the terms of this Agreement, all of the Lenders, or (ii) in the absence of its
own gross negligence or willful misconduct. Neither Administrative Agent nor any of its directors, officers, agents or employees shall
be responsible for or have any duty to ascertain, inquire into or verify (i) any statement, warranty or representation made in connection
with this Agreement or any borrowing hereunder; (ii) the performance or observance of any of the covenants or agreements of Borrower;
(iii) the satisfaction of any condition specified in Article II, except receipt of items required to be delivered to
Administrative Agent; (iv) the validity, effectiveness or genuineness of this Agreement, the other Loan Documents or any other instrument
or writing furnished in connection herewith; or (v) the contents of any certificate, report or other document delivered hereunder
or in connection herewith. Administrative Agent shall not incur any liability to any Lender by acting in reliance upon any notice, consent,
certificate, statement, or other writing (which may be a Lender wire, electronic mail or similar writing) believed by it to be genuine
or to be signed by the proper party or parties. Administrative Agent shall be deemed not to have knowledge of any Default or Event of
Default unless and until written notice thereof is given to Administrative Agent by Borrower or a Lender. Administrative Agent also may
rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any
liability for relying thereon.
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12.6 Indemnification.
Each Lender shall, ratably in accordance with its Commitment, indemnify Administrative Agent, its Affiliates and their respective directors,
officers, agents and employees (to the extent not reimbursed by Borrower) against any cost, expense (including counsel fees and disbursements),
claim, demand, action, loss or liability (except such as result from such indemnitees’ gross negligence or willful misconduct) that
such indemnitees may suffer or incur in connection with this Agreement, the other Loan Documents or any action taken or omitted by such
indemnitees hereunder.
12.7 Credit
Decision. Each Lender acknowledges that it has, independently and without reliance upon Administrative Agent or any other Lender and
based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement.
Each Lender also acknowledges that it shall, independently and without reliance upon Administrative Agent or any other Lender, and based
on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not
taking any action under this Agreement, any related agreement or any document furnished hereunder or thereunder and in deciding whether
or to the extent to which it will continue as a Lender or assign or otherwise transfer its rights, interests and obligations hereunder.
12.8 Successor
Administrative Agent. Administrative Agent may (x) resign as the initial Administrative Agent by giving notice thereof to the
Lenders and Borrower, in which event Lenders shall have the right to appoint a Lender that satisfies the Eligibility Requirements as a
successor Administrative Agent, and/or (y) assign to any a Lender that will serve as a successor Administrative Agent all of its
right, title and interest in, to and under the Loan in its capacity as Administrative Agent. Upon the appointment of a successor Administrative
Agent or any assignment to a successor Administrative Agent, in each case, in accordance with the immediately preceding sentence, (i) such
successor Administrative Agent shall succeed to and become vested with all the rights, powers and duties of the former Administrative
Agent, (ii) the term “Administrative Agent” means such successor Administrative Agent effective upon such appointment
or assignment, and (iii) the former Administrative Agent’s rights, powers and duties as Administrative Agent shall be terminated,
without any other or further act or deed on the part of such former Administrative Agent or any of the parties to this Agreement or any
holders of the Loans. Upon the acceptance of appointment or assignment as Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall thereupon succeed to and become vested with all the rights and duties of the former Administrative
Agent, and the former Administrative Agent shall be discharged from its duties and obligations hereunder first accruing or arising after
the effective date of such appointment or assignment. If no successor Administrative Agent shall have been appointed by the Lenders upon
the resignation or removal of Administrative Agent as Administrative Agent hereunder, within sixty (60) days after the retiring Administrative
Agent gives notice of resignation or is removed, the retiring Administrative Agent’s resignation or removal shall nevertheless thereupon
become effective, and then the Lender that owns the highest ratable share of the Loan which is not (A) a Defaulting Lender, (B) an
Affiliate of any Administrative Agent removed by the Lenders, or (C) the Lender that is acting as Administrative Agent hereunder,
shall automatically become the successor Administrative Agent, provided, that, if no Lender satisfies the requirements of the foregoing
clauses (A) through (C), then Lenders (excluding the Lender acting as the resigning or removed Administrative Agent
hereunder) shall vote as to which Lender shall act as the successor Administrative Agent hereunder and if no Lender shall receive fifty
percent (50%) or more of such vote of Lenders, then a Lender selected by the resigning or removed Administrative Agent shall automatically
become the successor Administrative Agent. Except for a successor Administrative Agent appointed pursuant to the terms of the immediately
preceding sentence, only upon the acceptance of any appointment as an Administrative Agent hereunder by a successor Administrative Agent
and upon the recordation in the Registry of a written designation and acceptance, shall Administrative Agent’s resignation become
effective and, whether pursuant to the immediately preceding sentence or this sentence, such successor Administrative Agent shall thereupon
succeed to and become vested with all of the rights, powers, privileges and duties of Administrative Agent, and the retiring or removed
Agent shall be discharged from its duties and obligations hereunder and under the Loan Documents other than its liability, if any, for
duties and obligations accrued prior to its retirement or removal. After any Administrative Agent’s resignation hereunder as Administrative
Agent or assignment of its right, title and interest in, to and under the Loan in its capacity as Administrative Agent, the provisions
of this Article shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent.
Borrower shall be responsible for any and all reasonable out-of-pocket costs, fees and expenses payable in connection with any appointment
of, or assignment to, any successor Administrative Agent (including, without limitation, the negotiation, execution and delivery of any
administrative agent services agreement or other related documentation) and all reasonable out-of-pocket costs, fees and expenses payable
to such successor Administrative Agent in connection with the performance of its obligations hereunder. After Administrative Agent’s
resignation or assignment under this Section 12.8, the provisions of this Article XII and Section 19.12
hereof shall continue in effect for the benefit of such former Administrative Agent and its respective Indemnified Parties in respect
of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent.
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12.9 Copies
of Notices. Administrative Agent shall deliver to each Lender a copy of any notice sent to Borrower, Mortgage Borrower or Sole Member
by Administrative Agent in connection with the performance of its duties as Administrative Agent hereunder.
12.10 Borrower’s
Rights. The provisions of this Article XII are solely for the benefit of Administrative Agent and the Lenders, and Borrower
shall not have any rights to rely on, enforce or consent to any waiver, modification or amendment of, any of the provisions hereof; provided,
however, that Borrower agrees that Administrative Agent’s inability to deliver any consent to, or approval of, an action
requested by Borrower due to lack of appropriate Lender consent shall not constitute an unreasonable withholding or delay by Administrative
Agent in the giving of such consent or approval. Notwithstanding the foregoing, Borrower shall be entitled to rely on consents and approvals
executed by Administrative Agent without investigation as to the existence of proper authorization by the Lenders.
12.11 Agency
Provisions regarding Intercreditor Agreement.
(a) Each
Lender hereby authorizes and instructs Administrative Agent to enter into, exercise its rights under, and perform its obligations under
any Intercreditor Agreement.
(b) Each
Lender hereby assumes, ratifies, undertakes and makes, for the benefit of all Persons who are parties to or intended beneficiaries of
the Intercreditor Agreement, all of the covenants, representations and warranties (without regard to any limitations which limit such
representations and warranties to the knowledge of Administrative Agent) that are made for or on behalf of such Lender as a “Mezzanine
Lender” (as such term may be defined in any Intercreditor Agreement) in the Intercreditor Agreement (or which are assumed by
such Lender pursuant to its Assignment and Assumption), each of which shall be the direct, personal covenants and representations of such
Lender, and hereby certifies and confirms as of the date on which such Lender becomes a party to this Agreement that all representations
and warranties that are made for or on behalf of such Lender as a “Mezzanine Lender” in the Intercreditor Agreement (or which
are assumed by such Lender pursuant to its Assignment and Assumption) are true and correct.
(c) Each
Lender hereby releases Administrative Agent from any obligation or liability whatsoever with respect to the performance of any such covenants,
representations or warranties that are made for or on behalf of such Lender as a “Mezzanine Lender” in the Intercreditor Agreement
(or which are assumed by such Lender pursuant to its Assignment and Assumption), and indemnifies and holds harmless Administrative Agent
from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind and nature whatsoever that may be imposed on, incurred by or asserted against Administrative Agent in any way relating to
or arising out of any such covenants, representations or warranties that are made for or on behalf of such Lender as a “Mezzanine
Lender” in any Intercreditor Agreement (or which are assumed by such Lender pursuant to its Assignment and Assumption) or by reason
of the failure of any such representations and warranties that are made for or on behalf of such Lender as a “Mezzanine Lender”
in any Intercreditor Agreement to be true and correct, provided, however, no Lender shall be liable for such indemnification
to the extent that such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements
have resulted from the gross negligence or willful misconduct of Administrative Agent.
(d) Each
Lender agrees that all of the rights, benefits, immunities, indemnities, exculpations and other provisions set forth in this Article XII
shall apply to any Intercreditor Agreement, and to Administrative Agent in connection with its exercise its rights, and performance of
its obligations, thereunder as if the Intercreditor Agreement were a “Loan Document” for all purposes of this Article XII.
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XIII. INTENTIONALLY OMITTED.
XIV. LOAN BIFURCATION.
14.1 Component
Note; New Mezzanine Loan. Without in any way limiting Administrative Agent and Lenders’ other rights under this Agreement or
any other Loan Document (including Lender’s rights under Article XV hereof), Administrative Agent and Lenders shall
have the right, at any time and in its or their sole and absolute discretion, to require Borrower to execute and deliver new component
notes (including senior, junior and new mezzanine notes) to replace the Note or modify the Note to reflect multiple components of the
Loan, which notes may be paid in such order of priority as may be designated by Administrative Agent and Lenders, and which notes may
have varying principal amounts, interest rates and economic terms and Administrative Agent and Lenders shall have the right to allocate
the collateral securing the Loan among the various Note and new component notes in their sole discretion (including, without limitation,
the right to create one or more new mezzanine loans or securitize all or any portion of the Loan), provided that such component
notes and such allocation of the collateral shall not (A) increase the initial weighted average interest rate set forth herein or
in the Note (except that the weighted average interest rate may subsequently change due to (1) the application of funds following
an Event of Default, and (2) a Taking or a Casualty, which results in a Mandatory Prepayment, and (3) as a result of any Specified
Priority Payments, (B) amend or otherwise modify any other economic term of the Loan on a blended aggregate basis (except as set
forth in clause (A) above)) or (C) increase the obligations or liabilities (other than to a de minimis extent)
or decrease the rights (other than to a de minimis extent) of Borrower, Sole Member, Mortgage Borrower or Guarantor under the Loan
Documents. Borrower shall reasonably cooperate with Administrative Agent and Lenders in order to establish the component notes, any new
mezzanine loan or any preferred equity arrangement and shall execute and deliver, and cause to be executed and delivered, such documents
as shall be reasonably required by Administrative Agent or Lenders in connection therewith, all in form and substance reasonably satisfactory
to Administrative Agent and Lenders (including, without limitation, causing Guarantor to reaffirm the Guarantees and the Environmental
Indemnity, executing and delivering an amendment to the Pledge Agreements to cause same to be two (2) or more separate substitute
pledge agreements in the aggregate principal amount of up to the Maximum Loan Amount, to reapportion the lien of the Pledge Agreements
and Mortgage among such separate substitute pledge agreements and mortgages, pari passu or otherwise, or the severance of other security
documents, executing a pledge of the membership interests in Sole Member in connection with any new mezzanine loan, and to amend Sole
Member’s organizational structure to provide for one or more mezzanine borrowers). Borrower hereby further agrees, promptly after
written demand therefor from Administrative Agent, to cause opinions of counsel to Borrower in form and substance reasonably satisfactory
to Administrative Agent with respect to such substitute notes, security instrument, amendments and/or replacements to be delivered to
Administrative Agent. Borrower hereby absolutely and irrevocably appoints Administrative Agent as its true and lawful attorney, coupled
with an interest, in its name and stead to make and execute all documents necessary or desirable to establish the component notes as described
in this Section 14.1, Borrower ratifying all that its said attorney shall do by virtue thereof; provided, however,
Administrative Agent shall not make or execute any such documents under such power until five (5) Business Days after written notice
has been given to Borrower by Administrative Agent of Administrative Agent’s intent to exercise its rights under such power. Notwithstanding
anything to the contrary contained in this Section 14.1 or otherwise set forth herein, so long as (x) the Loan is outstanding
and (y) no Event of Default has occurred and is continuing, Secured Party shall not create any additional mezzanine debt without
the prior written consent of Borrower.
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14.2 Intentionally
Omitted.
14.3 Cooperation.
14.3.1 At
the reasonable request of Administrative Agent, and subject to the Additional Disclosure Conditions, Borrower shall provide information
not in the possession of Administrative Agent or which may be reasonably required by Administrative Agent or any Lender or take other
actions reasonably required by Administrative Agent, in each case in order to satisfy the market standards to which Administrative Agent
or any Lender customarily adheres or which may be required by prospective investors and/or purchasers of any direct or indirect interest
in the Loan, or as may be required by Legal Requirements. Subject to Section 19.18, Administrative Agent and each Lender shall
have the right to provide to prospective investors and/or purchaser any information in its possession, including, without limitation,
financial statements relating to Borrower, Mortgage Borrower, Sole Member, Guarantor, Construction Manager, Affiliate Manager, the Property,
the Collateral and any Tenant of the Improvements. Borrower acknowledges that certain information regarding the Loan and the parties thereto
and the Property may be included in a private placement memorandum, prospectus or other disclosure documents (“Disclosure Documents”).
Subject to the Additional Disclosure Conditions, Borrower agrees that each of Borrower, Mortgage Borrower, Sole Member, Guarantor and
their respective officers and representatives, shall, at Administrative Agent’s or any Lender’s reasonable request, at Borrower’s
sole cost and expense, reasonably cooperate with Administrative Agent’s or any Lender’s efforts to arrange for a sale or participation
of any direct or indirect interest in the Loan in accordance with the market standards to which Administrative Agent or any Lender customarily
adheres and/or which may be required by prospective investors and/or purchasers. Borrower and Guarantor shall review, at Administrative
Agent’s or any Lender’s reasonable prior written request in connection with any sale or participation of any direct or indirect
interest in the Loan, any Disclosure Documents used or provided to any prospective investors and/or purchasers, and shall confirm that
the factual statements and representations contained in such sections and such other information in such Disclosure Documents (to the
extent such information relates to, or is based on, or includes any information regarding the Collateral, the Property, Borrower, Mortgage
Borrower, Sole Member, Guarantor, Construction Manager, Affiliate Manager and/or the Loan) do not contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they
were made, not misleading.
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14.3.2 Guarantor
Cooperation. Without limiting the other provisions of this Section 14.3, subject to the Additional Disclosure Conditions,
Borrower shall cause Guarantor to cooperate in all reasonable respects with Administrative Agent in its exercise of any of its rights
pursuant to Sections 14.1, 15.1, 15.5 and/or 15.6. Subject to Section 19.18, Administrative Agent
and each Lender shall be permitted to share such information with potential purchasers, participants or assignees of an interest in the
Loan and any investment banking firms, accounting firms, law firms and other third-party advisors advising such Persons. It is understood
that the information provided by or at the direction of Guarantor to Administrative Agent, including any and all financial statements
provided to Administrative Agent hereunder or in accordance with any other Loan Document, may ultimately be incorporated into offering
documents for any such transaction, and thus various investors and potential investors may also see some or all of such information;
provided, however, that, in connection with any such disclosure of Guarantor’s organizational documents and financial
statements, Administrative Agent shall inform the investors and potential investors of the confidential nature of such organizational
documents and financial statements and Administrative Agent shall require that such parties deliver a confidentiality agreement, or a
“click-through” or other confidentiality agreement (provided that, in each case, neither Borrower nor Guarantor shall
be a party to, or entitled to any reliance on, any such confidentiality agreement) prior to distributing such information. Administrative
Agent, each Lender and all of the aforesaid third-party advisors and professional firms shall be entitled to rely on the information
supplied by, or at the direction of, Guarantor in the form that such information was provided by, or at the direction of, Guarantor.
14.4 Disclosure
Indemnification. Borrower and Guarantor agree to provide, in connection with any sale or participation of any direct or indirect
interest in the Loan, an indemnification agreement (A) certifying that (i) Borrower and Guarantor have carefully examined the
Disclosure Documents provided to Borrower by Administrative Agent (to the extent such information relates to, or is based on, or includes
any information regarding the Collateral, the Property, Borrower, Mortgage Borrower, Sole Member, Guarantor, Affiliate Manager and/or
the Loan and is based on information or statements provided by Borrower or Guarantor) and (ii) such Disclosure Documents, as same
may have been corrected by Borrower upon such examination to correct any inaccuracies, do not contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they
were made, not misleading, (B) jointly and severally indemnifying Administrative Agent and each Lender, and each of their respective
officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who Controls any such Person
within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified
Persons”), for any losses, claims, damages, liabilities, costs or expenses (including without limitation reasonable legal fees
and expenses for enforcement of these obligations), and excluding any Excluded Liabilities (collectively, the “Liabilities”)
to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in the Disclosure Documents provided to Borrower by Administrative Agent or
arise out of or are based upon the omission or alleged omission to state in such Disclosure Statements a material fact required to be
stated therein or necessary in order to make the statements in such Disclosure Documents, in light of the circumstances under which they
were made, not misleading (to the extent such information relates to, or is based on, or includes any information regarding the Collateral,
the Property, Borrower, Mortgage Borrower, Sole Member, Guarantor, Construction Manager, Affiliate Manager and/or the Loan) other than
to the extent Administrative Agent failed to make any corrections suggested by Borrower upon such examination of such Disclosure Documents,
and (C) agreeing to reimburse each Indemnified Person for any reasonable out-of-pocket legal or other expenses actually incurred
by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities. This indemnity agreement
will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification and reimbursement obligations provided
for in clauses (B) and (C) above shall, to the extent not prohibited by Legal Requirements, be effective, valid
and binding obligations of the indemnifying Persons, whether or not an indemnification agreement described in clause (A) above
is provided.
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XV. ASSIGNMENTS
AND PARTICIPATIONS.
15.1 Assignment
and Assumption. Any Lender may transfer, assign, encumber, pledge or hypothecate (including, in each case, via a CUSIP) (each, a
“Lender Transfer”) to one or more Persons all or a portion of its rights and obligations under this Agreement and
the other Loan Documents (along with a ratable percentage of such Lender’s interest in the balance of the Loan); provided,
that so long as there are any outstanding Commitments that have not been terminated in accordance with Section 2.5(d) and
no Event of Default has occurred and is continuing, and subject to Section 15.12, each such Lender Transfer shall be subject
to Borrower’s consent (not to be unreasonably withheld, conditioned or delayed), unless such Lender Transfer is to an Eligible
Assignee (other than, in the case of a Defaulting Lender, to an Affiliate of such Defaulting Lender), in which event such Lender Transfer
shall not be subject to any consent from Borrower. In the case of any Lender Transfer of a direct interest in the Loan, the parties to
each such Lender Transfer shall execute and deliver to Administrative Agent, for its acceptance and recording in the Register (as hereinafter
defined), an Assignment and Assumption, with (and subject to) the consent of Administrative Agent. Upon the consummation of any Lender
Transfer of a direct interest in the Loan pursuant to this Section 15.1, the transferor Lender, Administrative Agent and
Borrower shall make appropriate arrangements so that, if required, a new Note or Notes are issued to the assignee. In connection with
any Lender Transfer, the transferor Lender shall pay to Administrative Agent an administrative fee for processing such assignment in
the amount of Five Thousand Dollars ($5,000). Each transferee or assignee of any direct interest in the Loan shall deliver to Borrower
and Administrative Agent the tax documentation in accordance with Section 2.17. Subject to the provisions of Section 2.17
and Section 2.18, each Lender may transfer and carry its portion of the Loan at, to or for the account of any domestic or
foreign branch office, subsidiary or affiliate of such Lender. For the avoidance of doubt, the provisions of this Section 15.1
shall not apply to the sale of participations by any Lender in accordance with Section 15.6.
15.2 Effect
of Assignment and Assumption. Upon the execution, delivery, acceptance and recording, from and after the effective date specified
in any Assignment and Assumption executed pursuant to Section 15.1, (i) the assignee thereunder shall be a party hereto
and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Assumption, have the
rights and obligations of the assigning Lender, as the case may be, hereunder and such assignee shall be deemed to have assumed such
rights and obligations, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder have been assigned
by it pursuant to such Assignment and Assumption, relinquish its rights and be released from its obligations under this Agreement and
the other Loan Documents (and, in the case of an Assignment and Assumption covering all or the remaining portion of Lender’s rights
and obligations under this Agreement and the other Loan Documents, the assigning Lender shall cease to be a party hereto) accruing from
and after the effective date of the Assignment and Assumption, except with respect to (A) any payments made by Borrower to Lender
pursuant to the terms of the Loan Documents after the effective date of the Assignment and Assumption, (B) any letter of credit,
cash deposit or other deposits or security (other than the Lien of the Pledge Agreements and the other Loan Documents), if any, delivered
to or for the benefit of or deposited with such assigning Lender, for which such assigning Lender shall remain responsible for the proper
disposition thereof until such items are delivered to Administrative Agent and Administrative Agent agrees to hold the same in accordance
with the terms and provisions of the agreement pursuant to which such items were deposited and (C) the obligations of such Lender
under Section 19.18. For the avoidance of doubt, the provisions of this Section 15.2 shall not apply to the sale
of participations by any Lender in accordance with Section 15.6.
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15.3 Consent.
By executing and delivering an Assignment and Assumption, Administrative Agent and the assignee thereunder confirm to and agree with
each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Assumption, Administrative
Agent makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations
made in or in connection with this Agreement or any other Loan Documents or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in
connection with, this Agreement or any other Loan Documents or any other instrument or document furnished pursuant hereto or thereto;
(ii) Administrative Agent makes no representation or warranty and assumes no responsibility with respect to the financial condition
of Borrower, Mortgage Borrower or the performance or observance by Borrower of any of its obligations under any Loan Documents or any
other instrument or document furnished pursuant thereto or the performance and observance by Mortgage Borrower of any of its obligations
under the Mortgage Loan Documents or any instrument or document furnished pursuant thereto; (iii) such assignee confirms that it
has received a copy of this Agreement, together with copies of such other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into such Assignment and Assumption; (iv) such assignee will, independently and without
reliance upon Administrative Agent and based on such documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this Agreement and the other Loan Documents; (v) such assignee
appoints and authorizes Administrative Agent to take such action as Administrative Agent on its behalf and to exercise such powers and
discretion under the Loan Documents as are delegated to Administrative Agent by the terms hereof together with such powers and discretion
as are incidental thereto; and (vi) such assignee agrees that it will perform, in accordance with their terms, all of the obligations
which by the terms of this Agreement and the other Loan Documents are required to be performed by a Lender.
15.4 Register.
Administrative Agent (as a nonfiduciary agent of Borrower) shall maintain a copy of each Assignment and Assumption delivered to and accepted
by it and a register for the recordation of the names and addresses of Administrative Agent and each Lender and the Commitments of, and
the Principal Amounts (and stated interest) of the Loan owing to each Lender pursuant to the terms hereof from time to time (the “Register”).
Notwithstanding anything to the contrary set forth in the Loan Documents, the entries in the Register shall be conclusive and binding
for all purposes, absent manifest error, and Borrower, Administrative Agent and the Lenders shall treat each Person whose name is recorded
in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement. This Section 15.4
shall be construed so that the obligations under the Loan Documents are at all times maintained in “registered form” within
the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the Code and any related regulations (and any other relevant or
successor provisions of the Code or such regulations). The Register shall be available for inspection by Borrower or any Lender pursuant
to this Article XV at any reasonable time and from time to time upon reasonable prior written notice.
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15.5 Substitute
Notes. Upon its receipt of an Assignment and Assumption executed by an assignee, together with any Note or Notes subject to such
assignment, Administrative Agent shall, if such Assignment and Assumption has been completed (i) accept such Assignment and Assumption,
(ii) record the information contained therein in the Register, and (iii) give prompt written notice thereof to Borrower. Within
five (5) Business Days after its receipt of such notice, Borrower, at Borrower’s expense (subject to Section 15.11),
shall execute and deliver to Administrative Agent in exchange and substitution for the surrendered Note or Notes a new Note payable to
such assignee in an amount equal to the portion of the Loan assigned to it and a new Note payable to assignor in an amount equal to the
portion of the Loan retained by it hereunder. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate
then outstanding principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Assumption
and shall otherwise be in substantially the form of the Note (modified, however, to the extent necessary so as not to impose duplicative
or increased obligations on Borrower and to delete obligations previously satisfied by Borrower). Costs and expenses associated with
any of the foregoing shall be borne by Borrower (subject to Section 15.11).
15.6 Participations.
Lenders may sell participations to one or more Persons (other than Borrower or any of its Broad Affiliates) in or to all or a portion
of its rights and obligations under this Agreement and the other Loan Documents (including, without limitation, all or a portion of the
Note held by it); provided, however, that (i) such Lender’s obligations under this Agreement and the other Loan
Documents shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance
of such obligations, (iii) such Lender shall remain the holder of any such Note for all purposes of this Agreement and the other
Loan Documents, and (iv) Borrower, Administrative Agent and the Lenders shall continue to deal solely and directly with such Lender
in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents. For the avoidance of
doubt, each Lender shall be responsible for the indemnity under Section 2.17.4 with respect to any payments made by such
Lender to its participant(s). Borrower agrees that each participant shall be entitled to the benefits of Section 2.17 (subject
to the requirements and limitations therein, including the requirements under Section 2.17.6 (it being understood that the
documentation required under Section 2.17.6 shall be delivered to the participating Lender)) and Section 2.19
to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 15.1; provided
that such participant shall not be entitled to receive any greater payment under Section 2.17 and Section 2.19,
with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement
to receive a greater payment results from a Change in Law that occurs after the participant acquired the applicable participation. Each
Lender that sells a participation shall, acting solely for this purpose as a nonfiduciary agent of Borrower, maintain a register on which
it enters the name and address of each participant and the principal amounts (and stated interest) of each participant’s interest
in the Loan or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender
shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any participant or any
information relating to a participant’s interest in any commitments, loans, or its other obligations under any Loan Document) to
any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, or other obligation is in
registered form under Section 5f.103-1(c) of the United States Treasury Regulations. Notwithstanding anything to the contrary
set forth in the Loan Documents, the entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall
treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement
notwithstanding any notice to the contrary. For the avoidance of doubt, Administrative Agent (in its capacity as Administrative Agent)
shall have no responsibility for maintaining a Participant Register.
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15.7 Disclosure
of Information. Subject to the terms of Section 19.18, Administrative Agent, any Lender, and any assignee or participant
pursuant to this Article XV may, in connection with any assignment or participation or proposed assignment or participation
pursuant to this Article XV, disclose to the assignee or participant or proposed assignee or participant, any information
relating to any Borrower Party furnished to such assignee by or at the direction of any Borrower Party; provided, however,
that, in connection with any such disclosure, the assignee or participant or proposed assignee or participant shall agree in writing
to preserve the confidentiality of any confidential information received by it.
15.8 Security
Interest in Favor of Federal Reserve Bank. Notwithstanding any other provision set forth in this Agreement or any other Loan Document,
any assignee pursuant to this Article XV may at any time create a security interest in all or any portion of its rights under
this Agreement or the other Loan Documents (including, without limitation, the amounts owing to it and the Note or Notes held by it)
in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System or in favor
of any central bank in accordance with any comparable law, rule or regulation.
15.9 Mortgage
Loan; Intercreditor Agreement.
15.9.1 Mortgage
Loan. Without obtaining the prior written consent of Administrative Agent, or otherwise in accordance with the terms of any Intercreditor
Agreement, Borrower shall not cause or permit any of Mortgage Borrower or any Affiliate to (i) amend, modify, consolidate, spread,
restate or waive any of the Mortgage Loan Documents, provided, that, Administrative Agent shall not withhold its consent to any
such amendment, modification, supplement, waiver, termination, cancellation or surrender if Administrative Agent does not have approval
rights with respect thereto under any Intercreditor Agreement, (ii) terminate any of the Mortgage Loan Documents, except in accordance
with their terms, (iii) make any voluntary prepayment under the Mortgage Loan Document, except in connection with the full and simultaneous
repayment of the Loan (and then only to the extent prepayment of the Loan is then permitted under the Loan Documents), or (iv) grant
any additional collateral to, or incur any guaranty, indemnity or other obligation on account of the Mortgage Loan in favor of, the Mortgage
Lender or any Affiliate of Mortgage Lender, except for collateral and guaranty, indemnity and other obligations as required pursuant
to the Mortgage Loan Documents as in effect on the date of the closing of the Mortgage Loan. Subject to the foregoing, Borrower shall
deliver to Administrative Agent a copy of any amendment or modification to the Mortgage Loan Document within two (2) Business Days
after Borrower receives a fully executed copy thereof. At such time as the Debt shall have been paid in full, and any funds of Borrower
are possessed by Administrative Agent, such funds shall be disbursed to the Mortgage Administrative Agent if the Mortgage Loan is outstanding,
to be held in accordance with the terms of the Mortgage Loan Documents, otherwise such funds shall be disbursed to Borrower.
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15.9.2 Intercreditor
Agreement. Borrower acknowledges and agrees that (i) any Intercreditor Agreement is intended solely for the benefit of Administrative
Agent and Lenders, on the one hand, and Mortgage Administrative Agent and Mortgage Lenders on the other hand, (ii) neither Borrower
nor Mortgage Borrower is an intended third-party beneficiary of any of the provisions therein or entitled to rely on any of the provisions
contained therein, and (iii) any Intercreditor Agreement may allow Mortgage Lender certain additional forbearances and accommodations
not otherwise available to Borrower (including, among other things, additional time to cure defaults by Borrower and the right to purchase
the Loan under certain circumstances) and that Borrower hereby waives any objection thereto. None of Administrative Agent, any Lender,
Mortgage Administrative Agent or Mortgage Lender shall have any obligation to disclose to Borrower the contents of any Intercreditor
Agreement. Borrower’s and Guarantor’s obligations under this Agreement and the other Loan Documents are and will be independent
of each Intercreditor Agreement and shall remain unmodified by the terms and provisions thereof. In connection with the exercise of its
rights set forth in the Loan Documents or any Intercreditor Agreement, Administrative Agent shall have the right at any time to discuss
the Collateral, the Property, the Loan, the Mortgage Loan, or any other matter relating to the Collateral, the Property, the Loan, the
Mortgage Loan directly with Mortgage Lender or any of their respective consultants, agents or representatives, without notice to or permission
from Borrower or any Guarantor, and Administrative Agent shall have no obligation to disclose such discussions or the contents thereof
with Borrower or any Guarantor. If any action, proposed action or other decision is consented to or approved by Mortgage Administrative
Agent on behalf of the Mortgage Lender then such consent or approval shall not be binding or controlling on Administrative Agent or Lenders.
Borrower hereby acknowledges and agrees that (A) the risks of Mortgage Lender in making the Mortgage Loan are different from the
risks of Lenders in making the Loan, (B) in determining whether to grant, deny, withhold or condition any requested consent or approval
Mortgage Administrative Agent, and Administrative Agent may reasonably reach different conclusions, and (C) Administrative Agent
has an absolute independent right to grant, deny, withhold or condition any requested consent or approval in accordance with the Loan
Documents based on its own point of view. Further, the denial by Administrative Agent of a requested consent or approval shall not, in
and of itself (unless such denial is in violation of its obligations hereunder), create any liability or other obligation of Lenders
or Administrative Agent if the denial of such consent or approval results directly or indirectly in a default under the Mortgage Loan,
and Borrower hereby waives any claim of liability against Lenders or Administrative Agent arising from any such denial that is not in
violation of Administrative Agent’s obligations hereunder.
15.10 Defaulting
Lender. Notwithstanding any provision of this Agreement to the contrary, if a Lender becomes a Defaulting Lender, the following provisions
shall apply for so long as such Lender is a Defaulting Lender.
(a) Suspension
of Voting Rights. Such Defaulting Lender shall not have the right to consent to, approve or vote on any issue on which consent, approval
or voting is required and the Commitment of such Defaulting Lender shall not be included in determining whether the Lenders have taken
or may take any action under any of the Loan Documents or under any co-lender agreement; provided, however, if Administrative
Agent is a Defaulting Lender, Administrative Agent shall continue to have all rights and obligations provided for in this Agreement and
the Loan Documents with respect to the administration of the Loan until such Defaulting Lender is removed as Administrative Agent pursuant
to the terms hereof or any applicable co-lender agreement. If a Defaulting Lender ceases to be a Defaulting Lender in accordance with
Section 15.10(g), its consent, approval or voting rights hereunder shall be reinstated as and from the date of the cure of
such default.
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(b) Turn
Over of Payments. All amounts payable hereunder to such Defaulting Lender in respect of the Obligations (whether on account of principal,
interest, fees or otherwise, including, without limitation, interest payments from interest reserve allocations to such Defaulting Lender
and any amounts that would otherwise be payable to such Defaulting Lender pursuant to Section 2.8), shall be paid to Administrative
Agent (other than interest on such Defaulting Lender’s Advances which interest shall accrue and not be payable until such time
as such Defaulting Lender ceases to be a Defaulting Lender in accordance with Section 15.10(g)), retained in a segregated
account and, subject to any applicable Legal Requirements, so long as no Event of Default is continuing, be applied at such time or times
as may be determined by Administrative Agent as follows: (i) first, to the payment of any amounts owing by such Defaulting Lender
to Administrative Agent hereunder, (ii) second, to the funding of any Advance in respect of which such Defaulting Lender has failed
to fund its portion as required by this Agreement, as determined by Administrative Agent, (iii) third, to the payment of any amounts
owing by such Defaulting Lender to the Non-Defaulting Lenders hereunder, including without limitation for any Special Advance under Section 15.10(c),
(iv) fourth, if so determined by Administrative Agent and Borrower, held in such account as cash collateral for future funding obligations
of such Defaulting Lender under this Agreement, and (v) fifth, subject to the provisions of Section 2.8, to such Defaulting
Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is a prepayment of the Principal
Amount of the portion of the Loan made by such Defaulting Lender, such payment shall be applied solely to repay the portions of the Loan
made by all Non-Defaulting Lenders pro rata prior to being applied to the prepayment of the portion of the Loan made by such Defaulting
Lender.
(c) Special
Advances. If a Lender fails to fund its portion of any Advance, in whole or part, within three (3) Business Days after the date
required hereunder and Administrative Agent shall not have funded such Defaulting Lender’s portion of such Advance, Administrative
Agent shall so notify the Lenders, and within three (3) Business Days after delivery of such notice, the Non-Defaulting Lenders
shall have the right, but not the obligation, in their respective, sole and absolute discretion, to fund all or a portion of such deficiency
(the amount so funded by any such Non-Defaulting Lenders being referred to herein as a “Special Advance”) to Borrower;
provided, that, if more than one Non-Defaulting Lender elects to fund such deficiency (each, an “Electing Lender”)
then such Electing Lenders shall fund pro rata based on the respective Commitments of the Electing Lenders). In such event, such Defaulting
Lender and Borrower severally agree to pay to Administrative Agent for payment to the Non-Defaulting Lenders making the Special Advance,
upon demand, such amount with interest thereon, for each day from and including the date such amount is made available to Borrower to
but excluding the date of payment to Administrative Agent, at (i) in the case of such Defaulting Lender, a rate per annum equal
to fifteen percent (15%) per annum or (ii) in the case of Borrower, the interest rate applicable to the Loan (and, for the avoidance
of doubt, any such sums payable by Borrower to Administrative Agent shall be added to the Principal Amount).
(d) Option
to Purchase Future Commitment. The Non-Defaulting Lenders shall have the right, but not the obligation, in their respective, sole
and absolute discretion, to acquire for no cash consideration (pro rata, based on the respective Commitments of those Lenders electing
to exercise such right), such Defaulting Lender’s Commitment to fund future Advances of the Loan (the “Future Commitment”).
Upon any such purchase of such Defaulting Lender’s Future Commitment, such Defaulting Lender’s share in future Advances and
its rights under the Loan Documents with respect thereto shall terminate on the date of purchase, and such Defaulting Lender shall promptly
execute all documents reasonably requested to surrender and transfer such interest.
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(e) Replacement
of Defaulting Lenders.
(i) By
Lenders. The Lenders (or such proportionate number of Lenders as may be set forth in any co-lender agreement) may, upon notice to
such Defaulting Lender and Administrative Agent, require such Defaulting Lender to assign and delegate to an Eligible Assignee that is
not a Defaulting Lender or any Affiliate thereof, without recourse (in accordance with and subject to the restrictions contained in this
Article XV) all of its interests, rights and obligations under this Agreement to an assignee (which assignee may be another
Lender, if a Lender accepts such assignment) that shall assume such obligations in accordance with and subject to the terms of any co-lender
agreement. A Defaulting Lender shall not be required to make any such assignment and delegation if, prior thereto, such Lender shall
cease to be a Defaulting Lender.
(ii) By
Borrower. If a Lender has become a Defaulting Lender, and no Non-Defaulting Lenders have exercised their rights under Section 15.10(e)(i),
then Borrower may, at its sole expense and effort, upon not less than thirty (30) days prior notice to such Lender and Administrative
Agent, require such Lender to assign and delegate to an Eligible Assignee (that is not itself a Defaulting Lender or any Affiliate thereof)
reasonably acceptable to Administrative Agent, without recourse (in accordance with and subject to the restrictions contained in this
Article XV), all its interests, rights (other than its existing rights to payments pursuant to Section 2.17 or
2.19) and obligations under this Agreement to an assignee that shall assume such obligations (which assignee may be another Lender
that is not a Defaulting Lender or an Affiliate thereof, if a Lender accepts such assignment) in accordance with and subject to the terms
of any co-lender agreement; provided that (i) Borrower shall have received the prior written consent of Administrative Agent
unless such Assignee is an Eligible Assignee that is not itself a Defaulting Lender or any Affiliate thereof, (ii) the Deficiency
Waiver Conditions shall continue to be satisfied and (iii) such Lender shall have received payment of an amount equal to the outstanding
principal of its Loan, accrued interest thereon, accrued fees and all other amounts payable to it, from the assignee (to the extent of
such outstanding principal and accrued interest and fees) or Borrower (in the case of all other amounts), provided however, that
in the case of Borrower’s replacement of a Defaulting Lender for failure to fund Advances hereunder, the assignee or Borrower,
as the case may be, shall hold back from such amounts payable to such Lender and pay directly to Administrative Agent any payments due
to Administrative Agent or the Non-Defaulting Lenders by Defaulting Lender under this Agreement or any co-lender agreement, to be distributed
by Administrative Agent in accordance with Section 15.10(b). Such Lender’s obligation to assign and delegate its interests,
rights and obligations under this Agreement to an assignee pursuant to the forgoing sentence shall be specifically enforceable by Borrower.
A Lender shall not be required to make any such assignment and delegation if, prior thereto, such Lender shall cease to be a Defaulting
Lender or if, as a result of a waiver by such Lender or otherwise, the circumstances entitling Borrower to require such assignment and
delegation cease to apply.
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(f) Indemnification.
Each Defaulting Lender shall indemnify and hold harmless Administrative Agent, each Non-Defaulting Lender and Borrower from and against
any liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind and
nature whatever which may be imposed on, incurred by or asserted against Administrative Agent, any Non-Defaulting Lender or Borrower
with respect to the Loan Documents, any Project Documents or any Construction Agreements in any way relating to or arising out of such
Lender’s status as a Defaulting Lender. The obligations of a Defaulting Lender under this Section 15.10(f) shall
survive the payment of the Obligations, the termination of this Agreement and such Defaulting Lender’s reversion to a Non-Defaulting
Lender under Section 15.10(g).
(g) Ceasing
to be a Defaulting Lender. A Lender shall cease to be a Defaulting Lender only upon (i) the payment of all amounts due and payable
by such Defaulting Lender to Administrative Agent or any other Lender under this Agreement and any co-lender agreement; (ii) the
payment of any damages suffered by Borrower as a result of such Defaulting Lender’s default hereunder; (iii) the confirmation
by such Lender to Administrative Agent and Borrower in writing that such Lender will comply with all of its funding obligations under
this Agreement; and (iv) the circumstances described in clauses (d) and (e) of the definition of “Defaulting
Lender” do not exist. An assignment by a Lender of its rights and obligations under this Agreement shall not in and of itself
cause such Lender to cease to be a Defaulting Lender. The rights and remedies against a Defaulting Lender under this Section 15.10
are in addition to any other rights and remedies that Administrative Agent or any Lender may have against such Defaulting Lender in any
co-lender agreement.
(h) Non-Defaulting
Lender Advances. Notwithstanding the foregoing or anything herein to the contrary, in cases where a Defaulting Lender fails to fund
its ratable share of any Advance and (i) none of the other Lenders elects to purchase such Defaulting Lender’s Future Commitment
pursuant to Section 15.10(d), (ii) the Defaulting Lender’s interest is not assigned pursuant to Section 15.10(e)(i) and
(iii) Borrower is unable to procure a replacement Lender in accordance with Section 15.10(e)(ii), the obligation of
the Non-Defaulting Lenders to fund their respective portions of such Advance and each subsequent Advance shall be conditioned on Borrower’s
compliance with Section 2.25.
(i) Subordination
of Defaulting Lender’s Interest. Notwithstanding anything else to the contrary contained in this Agreement, so long as any
Lender is a Defaulting Lender, such Defaulting Lender’s interest in, and any and all amounts due to a Defaulting Lender under,
the Loan Documents (including, without limitation, all principal, interest, fees and expenses) shall be subordinate in lien priority
and to the repayment of all amounts (including, without limitation, interest) then or thereafter due or to become due to the Non-Defaulting
Lenders under the Loan Documents (including future advances), and the Defaulting Lender thereafter shall have no right to participate
in any discussions among and/or decisions by Lenders hereunder and/or under the other Loan Documents. Further, any Defaulting Lender
shall be bound by any amendment to, or waiver of, any provision of, or any action taken or omitted to be taken by Administrative Agent
and/or the Non-Defaulting Lenders under, any Loan Document which is made subsequent to the Defaulting Lender’s becoming a Defaulting
Lender.
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15.11 Costs
and Expenses. Notwithstanding anything contained in this Agreement or the other Loan Documents or Mortgage Loan Documents, Borrower
shall pay all actual out of-pocket costs and expenses to comply with Article XIV, Section 15.1, Section 15.2,
Section 15.3, Section 15.4, Section 15.5, Section 15.6, Section 15.7 and
Section 15.9, including, without limitation, all of Administrative Agent’s and each Lender’s reasonable attorney’s
fees, costs and expenses (including, attorneys’ fees incurred by Administrative Agent and each Lender in connection with amending
the Intercreditor Agreement and/or any co-lender agreement) and all third-party costs and expenses owed by Borrower, Administrative Agent
and/or each Lender as a result thereof, in each case, to the extent actually incurred in connection with the transactions described in
Article XIV, Section 15.1, Section 15.2, Section 15.3, Section 15.4, Section 15.5,
Section 15.6, Section 15.7 and Section 15.9; provided, however, Borrower and Mortgage
Borrower, in the aggregate, shall not be required to pay for any costs and expenses of Administrative Agent and/or Lenders pursuant to
this Section 15.11 and/or Mortgage Administrative Agent and/or Mortgage Lenders pursuant to the Mortgage Loan Agreement,
following the Closing Date in excess of $150,000 in the aggregate during the Term (provided that such cap shall not apply to any
legal fees or other costs or expenses of Borrower) or any Excluded Taxes.
15.12 Prohibited
Transferee. Notwithstanding anything to the contrary contained herein, so long as no Event of Default shall have occurred and be
continuing, no Lender shall sell, assign or transfer any portion of the Loan to a Prohibited Transferee.
XVI. RESERVE
ACCOUNTS.
16.1 Tax
Reserve Funds.
(a) Tax
Reserve Funds Deposit. Amounts deposited pursuant to this Section 16.1(a) are referred to herein as the “Tax
Reserve Funds”. All Tax Reserve Funds shall be held by Administrative Agent or Servicer in the Tax Reserve Account. Borrower
shall make (or cause to be made) the following deposits into the Tax Reserve Account:
(i) Intentionally
omitted.
(ii) Subject
to the provisions of Section 3.1.1, on each Payment Date until the Debt is repaid in full, in accordance with the disbursement
provisions set forth in Section 3.2.1(f), the applicable Tax Disbursement Amount in accordance with Section 3.2.1(f)(i) hereof.
(iii) If
Borrower exercises an Extension Option in accordance with the terms of this Agreement, Borrower shall, on or prior to the applicable
Maturity Date, deposit the applicable Tax Reserve Amount with Administrative Agent into the Tax Reserve Account.
(iv) If,
at any time during an Extension Term, Administrative Agent reasonably determines that the Tax Reserve Funds together with revenue from
the Project will not be sufficient to pay the Impositions and Other Charges which will become due and payable prior to the repayment
of the Debt in full, then Administrative Agent shall notify Borrower in writing of such determination and Borrower shall deposit an amount
into the Tax Reserve Account that Administrative Agent estimates is sufficient to make up the deficiency within ten (10) Business
Days after such notice.
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(v) Notwithstanding
anything to the contrary contained in this Section 16.1, until the Carry Guaranty Cut-Off Conditions (as such term is defined
in the Carry Guaranty) have been satisfied pursuant to the terms of the Carry Guaranty, if, and for so long as, there is no Event of
Default continuing and no default by Guarantor in the performance of any of its obligations under the Carry Guaranty has occurred beyond
applicable notice and/or cure periods thereunder, then no deposits shall be required to be made in the Tax Reserve Account.
(b) Release
of Tax Reserve Funds. Provided that Borrower shall have satisfied the conditions to an Advance set forth in Section 2.30
and there are Tax Reserve Funds on deposit in the Tax Reserve Account, Administrative Agent will apply the Tax Reserve Funds to payments
of Impositions and Other Charges required to be made by Borrower pursuant to Section 7.1 hereof and under the Mortgage. Borrower
shall furnish Administrative Agent with all bills, statements and estimates for Impositions and Other Charges at least ten (10) days
prior to the date on which such Impositions and Other Charges first become payable. In making any payment relating to Impositions and/or
Other Charges, Administrative Agent may do so according to any bill, statement or estimate procured from the public office (with respect
to Impositions and Other Charges) without inquiry into the accuracy of such bill, statement or estimate or into the validity of any tax,
assessment, sale, forfeiture, tax lien or title or claim thereof.
16.2 Insurance
Reserve Funds.
(a) Insurance
Reserve Funds Deposit. Amounts deposited pursuant to this Section 16.2(a) are referred to herein as the “Insurance
Reserve Funds”. All Insurance Reserve Funds shall be held by Administrative Agent or Servicer in the Insurance Reserve Account.
Borrower shall make (or cause to be made) the following deposits into the Insurance Reserve Account:
(i) Intentionally
omitted.
(ii) Subject
to the provisions of Section 3.1.1, on each Payment Date until the Debt is repaid in full, in accordance with the disbursement
provisions set forth in Section 3.2.1(f), the applicable Insurance Disbursement Amount in accordance with Section 3.2.1(f)(ii) hereof
(iii) If
Borrower exercises an Extension Option in accordance with the terms of this Agreement, Borrower shall, on or prior to the applicable
Maturity Date, deposit the applicable Insurance Reserve Amount with Administrative Agent into the Insurance Reserve Account.
(iv) If,
at any time during an Extension Term, Administrative Agent reasonably determines that the Insurance Reserve Funds together with revenue
from the Project will not be sufficient to pay the Insurance Premiums which will become due and payable prior to repayment of the Debt
in full, then Administrative Agent shall notify Borrower in writing of such determination and Borrower shall deposit an amount into the
Insurance Reserve Account that Administrative Agent estimates is sufficient to make up the deficiency within ten (10) Business Days
after such notice.
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(v) Notwithstanding
anything to the contrary contained in this Section 16.2, if no Event of Default is continuing, if, and for so long as, the
Policies are maintained in effect pursuant to a blanket policy as described in Section 6.2.7, then no deposits shall be required
to be made in the Insurance Reserve Accounts.
(b) Release
of Insurance Reserve Funds. Provided that Borrower shall have satisfied the conditions to an Advance set forth in Section 2.30
and there are Insurance Reserve Funds on deposit in the Insurance Reserve Account, Administrative Agent will apply the Insurance Reserve
Funds to payments of Insurance Premiums required to be made by Borrower pursuant to Article VI hereof and under the Mortgage.
Borrower shall furnish Administrative Agent with all bills, statements and estimates for Insurance Premiums at least ten (10) days
prior to the date on which such Insurance Premiums first become payable. In making any payment relating to Insurance Premiums, Administrative
Agent may do so according to any bill, invoice or statement procured from any insurance company or its agent, without inquiry into the
accuracy of such bill, invoice or statement.
16.3 Debt
Service Reserve Funds.
(a) Deposits
of Debt Service Reserve Funds. Amounts deposited pursuant to this Section 16.3(a) are referred to herein as the
“Debt Service Reserve Funds”. All Debt Service Reserve Funds shall be held by Administrative Agent or Servicer in
the Debt Service Reserve Account. Borrower shall make (or cause to be made) the following deposits into the Debt Service Reserve Account:
(i) Intentionally
Omitted.
(ii) If
Borrower exercises an Extension Option in accordance with the terms of this Agreement, Borrower shall, on or prior to the Initial Maturity
Date and First Extended Maturity Date, as applicable, deposit the Debt Service Reserve Amount with Administrative Agent into the Debt
Service Reserve Account.
(iii) If,
at any time during an Extension Term, Administrative Agent reasonably determines that the Debt Service Reserve Funds will not be sufficient
to pay any Debt Service Disbursement Amount which will become due and payable through and including the then-current Maturity Date, then
Administrative Agent shall notify Borrower in writing of such determination and Borrower shall deposit an amount into the Debt Service
Reserve Account that Administrative Agent estimates is sufficient to make up the deficiency within ten (10) Business Days after
such notice.
(b) Release
of Debt Service Reserve Funds.
(i) Provided
that no Event of Default shall have occurred and be continuing and there are Debt Service Reserve Funds on deposit in the Debt Service
Reserve Account Administrative Agent shall disburse, without the necessity of notifying Borrower, a portion of the Debt Service Reserve
Funds on each Payment Date in an amount equal to the amount Debt Service and Late Payment Charges due and payable on such Payment Date
in respect of the Loan.
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(ii) Borrower
agrees and acknowledges that neither the sufficiency or the insufficiency, nor the availability or unavailability, of the Debt Service
Reserve Funds shall constitute a limitation on the obligation of Borrower to pay the monthly Debt Service under the Loan Documents.
16.4 Intentionally
Omitted.
16.5 Operating
Expense Reserve Funds.
(a) Deposits
of Operating Expense Reserve Funds. Amounts deposited pursuant to this Section 16.5(a) are referred to herein as
the “Operating Expense Reserve Funds”. All Operating Expense Reserve Funds shall be held by Administrative Agent or
Servicer in the Operating Expense Reserve Account. Borrower shall make (or cause to be made) the following deposits into the Operating
Expense Reserve Account:
(i) Intentionally
omitted.
(ii) If
Borrower exercises an Extension Option in accordance with the terms of this Agreement, Borrower shall, on or prior to the Initial Maturity
Date and First Extended Maturity Date, as applicable, deposit the Operating Expense Reserve Amount with Administrative Agent into the
Operating Expense Reserve Account.
(iii) If,
at any time during an Extension Term, Administrative Agent reasonably determines that the Operating Expense Reserve Funds will not be
sufficient to pay the Operating Expenses which will become due and payable through and including the then-current Maturity Date, then
Administrative Agent shall notify Borrower in writing of such determination and Borrower shall deposit an amount into the Operating Expense
Reserve Account that Administrative Agent estimates is sufficient to make up the deficiency within ten (10) Business Days after
such notice.
(b) Release
of Operating Expense Reserve Funds. (i) Provided that no Event of Default shall have occurred and be continuing and there are
Operating Expense Reserve Funds on deposit in the Operating Expense Reserve Account, Administrative Agent shall disburse Operating Expense
Reserve Funds to Borrower for the payment of Operating Expenses which are set forth in the then-applicable Annual Operating Budget approved
by Administrative Agent. Administrative Agent shall not be required to disburse Operating Expense Reserve Funds more frequently than
once each calendar month. Notwithstanding anything to the contrary contained herein, to the extent that Borrower shall fail to pay any
costs, expenses or other amounts pursuant to Section 19.12 of the Loan Agreement within the time period set forth therein,
Administrative Agent shall have the right, at any time, without notice to Borrower, to withdraw from the Operating Expense Reserve Account,
an amount equal to such unpaid costs, expenses and/or other amounts and pay such amounts to the Person(s) entitled thereto.
16.6 Intentionally
Omitted.
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16.7 Excess
Cash Flow Funds.
(a) Deposits
of Excess Cash Flow Funds. Amounts deposited into the Excess Cash Flow Funds Account pursuant to Section 3.2.1(e) are
referred to herein as “Excess Cash Flow Funds”.
(b) All
funds in the Excess Cash Flow Funds Account shall be held as additional collateral for the Loan and, following the occurrence of a Cash
Sweep Event (other than a Debt-Service Trigger Event (unless another Cash Sweep Event has also occurred), may be applied to the payment
of the Debt in accordance with the terms of Section 2.14; provided, that if a Debt-Service Trigger event exists (and
no other Cash Sweep Event exists), Administrative Agent shall disburse Excess Cash Flow Funds to Borrower for the payment of (i) capital
expenditures set forth in the Budget, Approved Annual Budget or as otherwise reasonably approved by Administrative Agent, (ii) tenant
improvement and other leasing expenses set forth in the Budget, Approved Annual Budget or as otherwise reasonably approved by Administrative
Agent, (iii) shortfall in the payment of amounts due and owing under this Agreement or the other Loan Documents, (iv) costs
associated with any Interest Rate Cap Agreement (including any Replacement Interest Rate Cap Agreement or Substitute Interest Rate Cap
Agreement) required pursuant to Section 2.33 and (v) distributions necessary under the Code to maintain the status of
IQHQ, Inc. as a real estate investment trust, subject to an aggregate cap on such distributions of $2,000,000 over the term of the
Loan.
(c) Upon
the expiration of any Cash Sweep Period, Administrative Agent shall disburse all remaining funds in the Excess Cash Flow Funds Account
to the Borrower Operating Agreement.
16.8 Use
of Loan Advances. Borrower hereby acknowledges and agrees that, notwithstanding anything to the contrary herein or in the other Loan
Documents, until such time that all Loan Advances available hereunder, if any, are fully funded (in accordance with the terms of this
Agreement, Borrower shall be required to use Advances (as opposed to amounts then on deposit in the Reserve Accounts) to pay for all
Line Items in the Budget.
16.9 Costs
and Expenses. All reasonable out-of-pocket costs and expenses actually incurred by Administrative Agent in connection with holding
and disbursing the funds on deposit in the Reserve Accounts (including, without limitation, the reasonable out-of-pocket costs and expenses
of the inspections, if any, required hereunder) shall be paid by Borrower.
XVII. DEFAULTS.
17.1 Event
of Default.
(a) Each
of the following events shall constitute an event of default hereunder (an “Event of Default”):
(i) if
(A) the Debt is not paid in full on the Maturity Date, (B) any regularly scheduled monthly payment of interest due under a
Note is not paid in full on the applicable Payment Date, (C) except as set forth in (G) below, any prepayment of principal
due under this Agreement or the Note is not paid when due, (D) the Exit Fee or the Additional Interest is not paid when due, (E) any
deposit to the Clearing Account, or the Cash Management Account required to be paid by Mortgage Borrower is not made on the required
deposit date therefor with such failure continuing for two (2) Business Days after such required deposit date, (F) any Deficiency
Collateral is not delivered to Administrative Agent when due pursuant to the terms of Section 2.25, or (G) except as
to any amount included in (A), (B), (C), (D), (E), and/or (F) of this clause (i), any other amount payable pursuant to this
Agreement, the Note, or any other Loan Document is not paid in full when due and payable in accordance with the provisions of the applicable
Loan Document, with such failure continuing for five (5) Business Days after Administrative Agent delivers written notice thereof
to Borrower, provided that, no monetary Default under sub-clause (B) or (G) of this Section 17.1(a)(i) shall
be deemed to have occurred hereunder by reason of, and no Event of Default shall result, from a failure to pay the amount described in
sub-clause (B) or (G) above, where (x) there are sufficient funds in the Mortgage Reserve Account or Reserve
Account available for the purpose of paying such amounts (to the extent such funds would otherwise be permitted to be disbursed for such
purpose hereunder), and (y) Mortgage Administrative Agent’s or Administrative Agent’s, as the case may be, access to
such funds is not prevented by Legal Requirements, injunction or other court order or otherwise;
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(ii) subject
to Borrower’s right to contest as set forth in Section 7.3, if any of the Impositions or Other Charges are past due
and are not paid within five (5) days following the date on which such Impositions or Other Charges are due and payable, provided,
that, there shall be no Event of Default under this Section 17.1(a)(ii), where (x) there are sufficient funds in the
Mortgage Reserve Account or Reserve Account available for the purpose of paying such amounts (to the extent such funds would otherwise
be permitted to be disbursed for such purpose hereunder), and (y) Administrative Agent’s access to such funds is not prevented
by Legal Requirements, injunction or other court order or otherwise;
(iii) if
(A) Borrower fails to deliver to Administrative Agent ACORD certificates of insurance (bearing notations evidencing payment of applicable
Insurance Premiums) or other evidence of insurance acceptable to Administrative Agent in Administrative Agent’s good faith determination
with respect to any replacement policies required by Section 6.2 not later than five (5) days prior to the expiration
date of any such policy, or (B) the insurance policies required by Section 6.2 are not kept in full force and effect,
provided that, with respect to sub-clause (B) above only, there shall be no Event of Default under this Section 17.1(a)(iii)(B),
where (x) there are sufficient funds in any Reserve Account or Mortgage Reserve Account available for the purpose of paying such
amounts (to the extent such funds would otherwise be permitted to be disbursed for such purpose hereunder), and (y) Administrative
Agent’s access to such funds is not prevented by Legal Requirements, injunction or other court order or otherwise;
(iv) if,
except as expressly permitted pursuant to Article VIII and Sections 7.2 and 7.3, (A) any Transfer of any
direct or indirect legal, beneficial or equitable interest in all or any portion of the Property or the Collateral occurs, (B) intentionally
omitted, (C) any Transfer of any direct or indirect legal, beneficial or equitable interest in Borrower or Mortgage Borrower occurs,
(D) any change of Control of Borrower, Mortgage Borrower, Sole Member or any Guarantor occurs if the Minimum Hold/Control Requirements
fail to be satisfied or (E) any Lien or encumbrance on all or any portion of the Property (other than Permitted Encumbrances) or
the Collateral exists and, solely with respect to this clause (E), is not removed within the time period specified in Section 7.2
and/or Section 7.3; provided, however, a Transfer with respect to which Borrower or any other Person has failed
to provide notice to Lender or the opportunity to review any documentation in connection with such Transfer, or copies of the documentation
relating to such Transfer, for which such Transfer would otherwise be permitted hereunder if Borrower had provided such requisite notice
and/or provided such documentation to Administrative Agent shall not in and of itself constitute an Event of Default if (x) Borrower
provides such information or notice to Administrative Agent within five (5) Business Days after the date Borrower becomes aware
of such failure and (y) such failure did not result in a Material Adverse Effect;
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(v) if
any representation or warranty made by Borrower herein or by Borrower, Sole Member, Mortgage Borrower, Guarantor or any Affiliate of
the foregoing in any other Loan Document, or in any Draw Requests, certificate or financial statement furnished to Administrative Agent
shall have been false or misleading in any material respect as of the date the representation or warranty was made; provided,
however, that if such representation or warranty which was false or misleading in any material respect is, by its nature, curable
and is not reasonably likely (during the cure period specified in this clause (v)) to have a Material Adverse Effect, and such
representation and warranty was not, to Borrower’s knowledge, false or misleading in any material respect when made, then the same
shall not constitute an Event of Default unless Borrower has not cured the same within five (5) Business Days after receipt by Borrower
of notice from Administrative Agent in writing of such breach, which five (5) Business Day period shall be extended for an additional
ten (10) Business Days period if cure of same is being diligently pursued and Administrative Agent has determined in good faith
that such additional cure period is not reasonably likely to have a Material Adverse Effect, it being understood that Borrower hereby
indemnifies and holds Administrative Agent and each Lender harmless from any Losses Administrative Agent or any Lender incur or suffer
as a result of the permitted cure rights set forth in this clause (v);
(vi) if
Borrower, Sole Member, Mortgage Borrower or Guarantor, or any general partner or managing member of Borrower, Sole Member, Mortgage Borrower
or Guarantor shall make an assignment for the benefit of creditors or shall admit in writing in a legal proceeding its inability to pay
its debts generally as they become due (other than (1) at the request of Administrative Agent or Lenders or their respective agents
or employees or in any information provided to Administrative Agent or Lenders pursuant to the Loan Documents or (2) unless failure
to make such admission would be a violation of Legal Requirements);
(vii) if
(A) a receiver, liquidator or trustee shall be appointed for Borrower, Sole Member, Mortgage Borrower or Guarantor, (B) Borrower,
Sole Member, Mortgage Borrower or Guarantor shall be adjudicated a bankrupt or insolvent, (C) any Borrower Party seeks substantive
consolidation of Borrower or Sole Member (with or into any entity other than Borrower or Sole Member, as applicable) in connection with
a proceeding under the Bankruptcy Code, or any similar state or federal law now or hereafter in effect relating to bankruptcy, reorganization
or insolvency, or the arrangement or adjustment of debts, or (D) any petition for bankruptcy, reorganization or arrangement pursuant
to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to in writing, or Acquiesced
in by, Borrower, Sole Member, Mortgage Borrower or Guarantor, or if any proceeding for the dissolution, liquidation, insolvency, bankruptcy
or wind-up (voluntary or involuntary) of Borrower, Sole Member, Mortgage Borrower or Guarantor shall be instituted (any of the foregoing,
a “Bankruptcy Event”); provided, however, if such appointment, adjudication, petition or proceeding
was involuntary and not consented in writing to by Borrower, Sole Member, Mortgage Borrower or Guarantor, as applicable, upon the same
not being discharged, stayed or dismissed within ninety (90) days;
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(viii) if
Borrower, Mortgage Borrower, Sole Member or Guarantor, as applicable, attempts to assign its rights under any of the Loan Documents or
any interest herein or therein in contravention of the Loan Documents;
(ix) if
this Agreement or any other Loan Document or any Lien granted hereunder or thereunder, in whole or in part, shall terminate, cease to
be effective, or shall cease to be a legally valid, binding and enforceable obligation of Borrower or Guarantor (in each case subject
only to applicable bankruptcy, insolvency and similar laws affecting rights of creditors generally, and subject to general principles
of equity (regardless of whether enforcement is sought in a proceeding in equity or at law)), or any Lien securing the Debt shall, in
whole or in part, cease to be a perfected Lien, subject only to the Permitted Encumbrances (except in any of the foregoing cases in accordance
with the terms hereof or under any other Loan Document or by reason of any affirmative act of Administrative Agent);
(x) if
Borrower shall fail to comply with (1) any covenants set forth in Article V (other than the covenants subject to clause
(xxx) below) within the time periods set forth therein, provided that, if such breach is capable of cure and the delay
in curing the same is not reasonably likely to have a Material Adverse Effect, then Borrower shall have a period of (A) ten (10) Business
Days after Administrative Agent delivers written notice thereof to Borrower to cure such Default in the case of any Default which can
be cured by the payment of a sum of money or (B) thirty (30) days after notice from Administrative Agent in the case of any other
Default, which thirty (30) day period may be extended for an additional sixty (60) days if Borrower is diligently and continuously effectuating
a cure of such curable non-monetary Default or (2) any covenants set forth in Article XI within the time periods set
forth therein, provided that, if such breach is capable of cure and the delay in curing the same is not reasonably likely to have
a Material Adverse Effect, then Borrower shall have a one-time cure period of thirty (30) days after Administrative Agent delivers written
notice thereof to Borrower to cure such Default in the case of any Default which can be cured (provided, however, for the
avoidance of doubt, that after the first such notice from Administrative Agent is delivered and the one-time cure period is exercised,
Administrative Agent shall not be required to deliver any such notice for any future occurrence of a breach of such covenants to constitute
an Event of Default);
(xi) if
Borrower breaches any of the provisions set forth in Section 5.1.29;
(xii) if
(A) Borrower, Mortgage Borrower, Sole Member, Guarantor, any other Borrower Party or any of their respective ERISA Affiliates, shall
have incurred any material liability, or an event or action shall have occurred that would reasonably be expected to cause any such Person
to incur any material liability (whether directly or indirectly, or through contract or otherwise), (x) with respect to any Plan,
including any liability under Section 412 of the IRC or Title IV of ERISA or (y) on account of a partial or complete withdrawal
from, unpaid contributions to, or the termination or insolvency, or endangered or critical status of, any Multiemployer Plan, or (B) Borrower,
Mortgage Borrower, Sole Member, Guarantor or any other Borrower Party shall have engaged in any transaction in connection with which
Borrower, Mortgage Borrower or Sole Member would be subject to either a material civil penalty assessed pursuant to the provisions of
Section 502 of ERISA or a material tax imposed under the provisions of Section 4975 of the IRC, and in each case in subclauses
(A) and (B) such event or condition, together with all other such events or conditions hereunder, if any, which
would reasonably be expected to result in material liability to Borrower, Mortgage Borrower or Sole Member or (C) the assets of
Borrower, Mortgage Borrower or Sole Member are “plan assets” of an employee benefit plan or for purposes of 29 C.F.R. Section 2510.3-101
as modified by Section 3(42) of ERISA or Section 4975 of the Code, respectively;
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(xiii) if
one or more judgments or decrees shall be entered against (A) Borrower, Mortgage Borrower and/or Sole Member involving in the aggregate
liability in excess of $1,000,000 or (B) Guarantor involving in the aggregate liability in excess of $15,000,000 and, in either
case, the same shall not have been vacated, bonded, satisfied or stayed pending appeal within ninety (90) days from the date of entry
of such judgment (or within sixty (60) days after the termination of any stay thereon obtained within such aforementioned sixty (60)
day period);
(xiv) except
as expressly permitted pursuant to the Loan Documents, if Borrower or any other Person grants any easement, covenant or restriction (other
than the Permitted Encumbrances) over the Property and such easement, covenant or restriction has or is reasonably likely to have a Material
Adverse Effect;
(xv) if
Mortgage Borrower shall default beyond the expiration of any applicable notice, grace and/or cure period under any existing easement,
covenant or restriction affecting the Property and such default is not reasonably likely to have a Material Adverse Effect;
(xvi) if
(A) Mortgage Borrower or any of its Affiliates shall be in default beyond applicable notice, grace and/or cure periods under any
Property Operating Agreement, (B) any Property Operating Agreement shall be terminated, replaced, amended or supplemented in violation
of this Agreement or (C) Borrower shall fail to cause Mortgage Borrower enter into a replacement Property Operating Agreement reasonably
satisfactory to Administrative Agent in accordance with the terms of this Agreement within thirty (30) days of the termination of such
Property Operating Agreement unless waived in writing by Administrative Agent in its reasonable discretion;
(xvii) (A) if
a default by Mortgage Borrower has occurred and continues beyond any applicable notice, grace and/or cure period under a General Contractor
Agreement and if such default permits the counterparty thereunder to terminate or cancel a General Contractor Agreement or (B) if
a General Contractor Agreement is terminated other than in connection with a default of Mortgage Borrower under such General Contractor
Agreement and a new General Contractor is not appointed as a replacement General Contractor pursuant to the provisions hereof within
forty-five (45) days after such termination;
(xviii) the
occurrence of any Milestone Non-Compliance Event;
(xix) if
construction of the Required Improvements shall cease or be suspended for a period in excess of forty-five (45) consecutive calendar
days (as may be extended by Excusable Delay);
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(xx) if
a Lien for the performance of work, the supply of materials or otherwise is filed against the Property or any part thereof or interest
therein and remains unsatisfied or unbonded for a period of forty-five (45) days after notice thereof from any source whatsoever;
(xxi) with
respect to any term, covenant or provision set forth herein or in any other Loan Document which specifically contains a notice requirement
and grace or cure period (other than the other subsections of this Section 17.1), if Borrower, Mortgage Borrower, Sole Member
or Guarantor shall be in default under such term, covenant or condition after the giving of such notice and the expiration of such grace
and/or cure period;
(xxii) if
Mortgage Borrower shall be in default beyond applicable notice, grace and/or cure periods under any of the Project Documents and such
default is not reasonably likely to have a Material Adverse Effect;
(xxiii) intentionally
omitted;
(xxiv) if
Borrower shall fail to permit Administrative Agent, Construction Consultant or the Servicer, or any of their respective representatives,
at all reasonable times after reasonable notice, to enter upon the Property for the purposes permitted under this Agreement and such
failure shall continue for five (5) Business Days after notice thereof, or Borrower shall fail to furnish to Administrative Agent,
Construction Consultant or the Servicer, or any of their respective representatives, within a reasonable time after request therefor,
the materials which Borrower is obligated to provide to Administrative Agent, Construction Consultant or the Servicer, or any of their
respective representatives, pursuant to the Loan Documents (other than materials required under Article XI) and any of the
foregoing failures shall continue for five (5) Business Days after notice thereof;
(xxv) if
any Draw Request is fraudulently submitted by Borrower in connection with any Advance for services performed or for materials used in
or furnished for the Required Improvements;
(xxvi) if
Borrower shall fail to obtain and/or maintain the Interest Rate Cap Agreement as required pursuant to Section 2.33 hereof,
and such failure continues for five (5) Business Days after Borrower’s receipt of written notice from Administrative Agent;
(xxvii) if
the Organizational Documents of Borrower, Mortgage Borrower or Sole Member shall be amended or modified in any manner that is reasonably
likely to have a Material Adverse Effect;
(xxviii) if
any Guarantor shall default in the performance or observance of the Financial Covenants or such Financial Covenants shall fail to be
and remain satisfied at any time and for any reason;
(xxix) if
any Guarantor shall default (beyond any applicable notice, grace and/or cure periods set forth therein), as applicable, in the performance
or observance of any covenants or obligations in any of the Guarantees or the Environmental Indemnity Agreement (other than the Financial
Covenants), and such default shall continue for (A) in the case of any default which can be cured by the payment of a sum of money,
the applicable time period for payment of the same set forth in each of the Guarantees and the Environmental Indemnity Agreement, or
(B) in the case of any other default, the shorter of (I) the applicable time period for performance of the same set forth in
each of the Guarantees and the Environmental Indemnity, and (II) thirty (30) days after notice from Administrative Agent, which
thirty (30) day period may be extended for an additional ninety (90) days if Guarantor is diligently and continuously effectuating a
cure of a curable non-monetary default;
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(xxx) if
Borrower shall fail to comply with any covenants set forth in Sections 5.1.9, 5.1.12, 5.1.13, 5.1.14, 5.1.16,
5.1.25, 5.1.26, 5.1.28, 5.1.30, 5.1.33, 5.3(e), 5.3(f), 5.7, 5.8.3 and
5.8.24 within the time periods set forth therein;
(xxxi) intentionally
omitted;
(xxxii) intentionally
omitted;
(xxxiii) if
Mortgage Borrower shall default, as applicable, in the performance or observance of any covenants or obligations in the Mortgage or any
of the other Loan Documents to which Mortgage Borrower is a party, and such default shall continue for (A)in the case of any default
which can be cured by the payment of a sum of money, the applicable time period for payment of the same set forth in the Mortgage or
such other Loan Document, or (B) in the case of any other default, the shorter of (I) the applicable time period for performance
of the same set forth in each of the Mortgage or such other Loan Document, and (II) thirty (30) days after notice from Administrative
Agent, which thirty (30) day period may be extended for an additional ninety (90) days if Mortgage Borrower is diligently and continuously
effectuating a cure of a curable non-monetary default;
(xxxiv) if
Sole Member shall default, as applicable, in the performance or observance of any covenants or obligations in the Pledge Agreement (Mortgage
Borrower) or any of the other Loan Documents to which Sole Member is a party, and such default shall continue for (A)in the case of any
default which can be cured by the payment of a sum of money, the applicable time period for payment of the same set forth in each of
the Pledge Agreement (Mortgage Borrower) or such other Loan Document, or (B) in the case of any other default, the shorter of (I) the
applicable time period for performance of the same set forth in each of the Pledge Agreement (Mortgage Borrower) or such other Loan Document,
and (II) thirty (30) days after notice from Administrative Agent, which thirty (30) day period may be extended for an additional
ninety (90) days if Sole Member is diligently and continuously effectuating a cure of a curable non-monetary default;
(xxxv) if
Borrower, Mortgage Borrower or Sole Member incurs any Indebtedness other than Permitted Indebtedness and Borrower, Mortgage Borrower
or Sole Member, as applicable, fails to repay or otherwise satisfy in full such Indebtedness within five (5) Business Days following
written notice from Administrative Agent;
(xxxvi) if
(1) Borrower, Mortgage Borrower or Sole Member shall fail to comply with any covenant set forth in Article IX (provided
that such failure shall not constitute an Event of Default if (A) such failure was inadvertent or immaterial, (B) such failure
is curable (and is not reasonably likely (during the cure period specified in this clause (xxxvi)) to have a Material Adverse
Effect), Borrower promptly commences to cure such breach within three (3) Business Days of notice thereof from any source, and (C) such
breach is cured within ten (10) days after receipt of written notice thereof from any source; it being understood that Borrower
shall indemnify and hold Administrative Agent and Lenders harmless from any loss, cost, expense, damage, or claim actually incurred by
Administrative Agent and/or any Lender as a result of such breach or (2) Borrower, Mortgage Borrower or Sole Member shall take any
action, or fail to take any action, which action or failure to take action constitutes a breach of the definition of “Single
Purpose Entity”;
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(xxxvii) intentionally
omitted;
(xxxviii) intentionally
omitted;
(xxxix) intentionally
omitted;
(xl) if
Borrower shall fail to comply with any covenants set forth in this Agreement or any of the other Loan Documents (not otherwise described
in this Section 17.1(a)), and such default shall continue for (A) ten (10) days after Administrative Agent delivers
written notice thereof to Borrower in the case of any default which can be cured by the payment of a sum of money, or (B) thirty
(30) days after notice from Administrative Agent in the case of any other default, which thirty (30) day period may be extended for an
additional ninety (90) days if Borrower is diligently and continuously effectuating a cure of such curable non-monetary default and the
failure to cure the same is not reasonably likely to have a Material Adverse Effect;
(xli) if,
without Administrative Agent’s prior written consent, any material License relating to the Property ceases to be in full force
and effect in violation of this Agreement, and the failure of such material License to be in full force and effect is reasonably likely
to have a Material Adverse Effect;
(xlii) if
Mortgage Borrower shall be in default beyond applicable notice, grace and/or cure periods under any REA and such default is reasonably
likely to have a Material Adverse Effect;
(xliii) Intentionally
omitted;
(xliv) if
any fraud or willful misconduct by any Borrower Party or any Affiliate of any Borrower Party occurs in connection with the Loan or the
Property or the Collateral;
(xlv) if
any Borrower Party or any Affiliate of any Borrower Party or any Person acting on behalf of such Borrower Party or such Affiliate of
a Borrower Party misapplies, misappropriates or converts (A) any Rents or other revenue from the Property or any security deposit,
(B) Proceeds, (C) any proceeds of the Loan, the Mortgage Loan, or (D) any disbursements from the Mortgage Reserve Accounts,
in each case in violation of the terms of the Loan Documents;
(xlvi) if
any of Borrower, Sole Member, Mortgage Borrower, any Guarantor or any Affiliate of any of them causes Mortgage Borrower or Sole Member
to amend or otherwise modify their respective organizational documents in order to repeal or materially amend the applicable election
to be governed by Article 8 of the UCC, or any termination or cancellation of the limited liability company membership certificate
evidencing Borrower’s one hundred percent (100%) ownership interest in Sole Member, as delivered to Administrative Agent on the
Closing Date in connection with the Loan Documents;
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(xlvii) if
there shall occur an “Event of Default” with respect to the Mortgage Loan in accordance with the Mortgage Loan Documents;
(xlviii) any
breach of Section 19.32 or Section 19.33 and if such breach is curable, the failure to cure such breach within
five (5) Business Days after demand by Administrative Agent; and
(xlix) Borrower’s
failure to submit to Lender proposed Minimum Leasing Criteria acceptable to Lender within thirty (30) days after the Closing Date.
(b) Upon
the occurrence and during the continuance of an Event of Default, Administrative Agent may, in addition to any other rights or remedies
available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, take such action, without notice or demand,
that Administrative Agent deems advisable to protect and enforce its rights against Borrower and in the Property and the Collateral,
including, without limitation, (i) declaring immediately due and payable the entire Principal Amount together with interest thereon
and all other sums due by Borrower under the Loan Documents, (ii) collecting interest on the Principal Amount at the Default Rate
whether or not Administrative Agent elects to accelerate the Note and (iii) enforcing or availing itself of any or all rights or
remedies set forth in the Loan Documents against Borrower, the Property and the Collateral, including, without limitation, all rights
or remedies available at law or in equity; and upon any Event of Default described in Sections 17(a)(vi) or Section 17(a)(vii),
the Debt hereunder and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically
become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained
herein or in any other Loan Document to the contrary notwithstanding. The foregoing provisions shall not be construed as a waiver by
Administrative Agent of its right to pursue any other remedies available to it under this Agreement, the Pledge Agreements or any other
Loan Document. Any payment hereunder may be enforced and recovered in whole or in part at such time by one or more of the remedies provided
to Administrative Agent in the Loan Documents.
17.2 Remedies.
(a) Unless
waived in writing by Administrative Agent, upon the occurrence and during the continuance of an Event of Default, all or any one or more
of the rights, powers, privileges and other remedies available to Administrative Agent against Borrower, Sole Member and/or Guarantor
under this Agreement or any of the other Loan Documents executed and delivered by, or applicable to, Borrower, Sole Member and/or Guarantor,
or at law or in equity may be exercised by Administrative Agent at any time and from time to time, whether or not all or any of the Debt
shall be declared due and payable, and whether or not Administrative Agent shall have commenced any foreclosure proceeding or other action
for the enforcement of its rights and remedies under any of the Loan Documents with respect to the Property or the Collateral. Any such
actions taken by Administrative Agent shall be cumulative and concurrent and may be pursued independently, singly, successively, together
or otherwise, at such time and in such order as Administrative Agent may determine in its sole discretion, to the fullest extent permitted
by law, without impairing or otherwise affecting the other rights and remedies of Administrative Agent permitted by law, equity or contract
or as set forth herein or in the other Loan Documents. Without limiting the generality of the foregoing, Borrower agrees that if an Event
of Default is continuing (i) Administrative Agent shall not be subject to any one action or election of remedies rule, and (ii) all
liens and other rights, remedies or privileges provided to Administrative Agent shall remain in full force and effect until Administrative
Agent has exhausted all of its remedies against the Property and the Collateral and the Pledge Agreements has been foreclosed, sold and/or
otherwise realized upon in satisfaction of the Debt or the Debt has been paid in full.
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(b) Intentionally
Omitted.
(c) With
respect to Borrower, the Collateral and the Property, nothing contained herein or in any other Loan Document shall be construed as requiring
Administrative Agent to resort to the Property or the Collateral for the satisfaction of any of the Debt, and Administrative Agent may
seek satisfaction out of the Property, the Collateral or any part thereof, in its absolute discretion in respect of the Debt. In addition,
Administrative Agent shall have the right from time to time to partially foreclose this Agreement, the Mortgage and the Pledge Agreements
in any manner and for any amounts secured by this Agreement, the Mortgage or the Pledge Agreements then due and payable as determined
by Administrative Agent in its sole discretion including, without limitation, the following circumstances: (i) if an Event of Default
exists, Administrative Agent may foreclose this Agreement, the Mortgage and Pledge Agreements to recover such delinquent payments, or
(ii) in the event Administrative Agent elects to accelerate less than the entire outstanding principal balance of the Loan, Administrative
Agent may foreclose this Agreement, the Mortgage and the Pledge Agreements to recover so much of the principal balance of the Loan as
Administrative Agent may accelerate and such other sums secured by this Agreement, the Mortgage or the Pledge Agreements as Administrative
Agent may elect. Notwithstanding one or more partial foreclosures, the Property and/or the Collateral shall remain subject to this Agreement,
the Mortgage and the Pledge Agreements to secure payment of sums secured by this Agreement and the Pledge Agreements and not previously
recovered.
17.3 Remedies
Cumulative; Waivers. The rights, powers and remedies of Administrative Agent under this Agreement and the Pledge Agreements shall
be cumulative and not exclusive of any other right, power or remedy which Administrative Agent may have against Borrower pursuant to
this Agreement or the other Loan Documents, or existing at law or in equity or otherwise. Administrative Agent’s rights, powers
and remedies may be pursued singly, concurrently or otherwise, at such time and in such order as Administrative Agent may determine in
Administrative Agent’s sole discretion. No delay or omission to exercise any remedy, right or power accruing upon an Event of Default
shall impair any such remedy, right or power or shall be construed as a waiver thereof, but any such remedy, right or power may be exercised
from time to time and as often as may be deemed expedient. A waiver of one Default or Event of Default with respect to Borrower or any
Guarantor shall not be construed to be a waiver of any subsequent Default or Event of Default by Borrower or any Guarantor or to impair
any remedy, right or power consequent thereon.
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17.4 Costs
of Collection. In the event that after an Event of Default: (i) any Note or any of the Loan Documents is placed in the hands
of an attorney for collection or enforcement or is collected or enforced through any legal proceeding; (ii) an attorney is retained
to represent Administrative Agent in any bankruptcy, reorganization, receivership, or other proceedings affecting creditors’ rights
and involving a claim under any Note or any of the Loan Documents; or (iii) an attorney is retained to protect or enforce the lien
or any of the terms of this Agreement, the Pledge Agreements or any of the other Loan Documents; then Borrower shall pay to Administrative
Agent all attorney’s fees, costs and expenses incurred in connection therewith, including costs of appeal, together with interest
on any judgment obtained by Administrative Agent at the Default Rate.
17.5 Construction
Related Remedies.
(a) Right
to Stop Disbursing Funds. In addition to any other rights and remedies which Administrative Agent may have pursuant to this Agreement
and the other Loan Documents or pursuant to law or equity, and without limitation thereof, (i) so long as a Monetary Default, material
non-monetary Default or an Event of Default shall exist, Administrative Agent may decline to make all or any portion of such further
Advances as Administrative Agent may elect and/or (ii) so long as an Event of Default shall exist, any or all obligations of Administrative
Agent under this Agreement, at the option of Administrative Agent, shall cease and terminate; provided, however, Administrative
Agent may make all or any portion of any Advance so long as any such Monetary Default, material non-monetary Default or Event of Default
shall exist without thereby becoming obligated to make all or a portion of any other or further Advance or waiving Administrative Agent’s
right to exercise any of Administrative Agent’s rights and remedies pursuant to any one or more of the Loan Documents or as may
be available at law or equity.
(b) Right
to Complete. In addition to any other rights and remedies which Administrative Agent may have under this Agreement and the other
Loan Documents or pursuant to law or equity, and without limitation thereof, after the occurrence and during the continuance of any Event
of Default, Administrative Agent may enter upon the Property and into possession of the Property and any other property (and exclude
Borrower and any other persons therefrom) and cause Completion of the construction of the Required Improvements in accordance with the
Plans and Specifications in all material respects, with such changes therein as Administrative Agent may from time to time deem appropriate
(provided that Borrower’s obligations hereunder shall not include any increases in the total cost of Completion caused solely
as a result of alterations to the Required Improvements that are not in accordance with the Plans and Specifications in all material
respects or that are not required to ensure compliance with then applicable Legal Requirements in the reasonable determination of Administrative
Agent, and that are performed by or at the direction of Administrative Agent following an Event of Default), all at the sole risk, cost
and expense of Borrower. Administrative Agent shall have the right, at any and all times, in its sole discretion to discontinue any work
commenced by Administrative Agent with respect to the construction of the Required Improvements or to change any course of action undertaken
by it and shall not be bound by any limitations or requirements of time whether set forth herein or otherwise. Upon the occurrence and
during the continuance of an Event of Default, Administrative Agent shall have the right and power (but shall not be obligated) to assume
all or any portion of the obligations of Mortgage Borrower under any or all Construction Agreements as Administrative Agent may elect
and to take over and use all or any part or parts of the labor, materials, supplies and equipment contracted for by or on behalf of Mortgage
Borrower, whether or not previously incorporated into the Property. In connection with any portion of the construction of the Required
Improvements undertaken by Administrative Agent pursuant to the provisions of this Section 17.5, Administrative Agent may
do any or all of the following as Administrative Agent, in its sole discretion, may elect to:
(i) engage
builders, general contractors, general and trade contractors, suppliers, architects, engineers, inspectors and others for the purpose
of furnishing labor, materials, equipment and fixtures in connection with the construction of the Improvements;
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(ii) amend,
modify or terminate any then existing contracts between Mortgage Borrower and any of the persons described in the preceding clause
(i);
(iii) pay,
settle or compromise all bills or claims which may become Liens against the Property, or which have been or may be incurred in any manner
in connection with the construction of the Required Improvements or for the discharge of liens, encumbrances or defects in the title
of the Property; and
(iv) take
such other action (including the employment of watchmen and the taking of other measures to protect the Property) or refrain from acting
under this Agreement as Administrative Agent may in its sole and absolute discretion from time to time determine without any limitation
whatsoever.
(c) Sums
Advanced. Borrower shall be liable to Administrative Agent for all sums actually paid or incurred for the construction of the Required
Improvements whether the same shall be paid or incurred pursuant to the provisions of this Section 17.5 or otherwise, and
all other payments made or liabilities incurred by Administrative Agent under this Agreement of any kind whatsoever (except to the extent
it is determined by a court of competent jurisdiction, beyond right of appeal, that such liabilities arose solely and directly out of
the gross negligence or willful misconduct of Administrative Agent), all of which shall be paid by Borrower to Administrative Agent upon
demand with interest at the Default Rate to the date of payment to Administrative Agent, and all of the foregoing sums, including such
interest at the Default Rate, shall be deemed and shall constitute Advances under this Agreement and be evidenced by the Note and secured
by the Pledge Agreements and the Mortgage.
17.6 Right
to Cure Defaults.
(a) During
the continuance of an Event of Default, Administrative Agent may, but without any obligation to do so and without notice to or demand
on Borrower and without releasing Borrower from any obligation hereunder or under the other Loan Documents or being deemed to have cured
any Event of Default, make, do or perform any obligation of Borrower hereunder or under the other Loan Documents in such manner and to
such extent as Administrative Agent may deem necessary. Administrative Agent is authorized to enter upon the Property for such purposes,
or appear in, defend, or bring any action or proceeding to protect its interest in the Property for such purposes. All actual out-of-pocket
costs and expenses incurred by Administrative Agent or the Lenders in remedying or attempting to remedy such Event of Default by Borrower
or in appearing in, defending, or bringing any action or proceeding shall bear interest at the Default Rate from the date such costs
and expenses were incurred to the date reimbursement payment is received by Administrative Agent and/or the Lenders, as applicable. All
such out-of-pocket costs and expenses incurred by Administrative Agent or the Lenders, together with interest thereon calculated at the
Default Rate, shall be deemed to constitute a portion of the Obligations, shall be secured by the liens and security interests provided
to Administrative Agent under the Loan Documents and shall be due and payable within ten (10) Business Days after delivery to Borrower
of written demand by Administrative Agent therefor.
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(b) Upon
the occurrence of any Event of Default (irrespective of whether or not the same consists of an ongoing condition, a one-time occurrence,
or otherwise), the same shall be deemed to continue at all times thereafter; provided, however, that such Event of Default
shall cease to continue only if Administrative Agent shall accept payment or performance of the defaulted obligation or shall execute
and deliver a written confirmation that such Event of Default has ceased to continue. Administrative Agent shall not be obligated under
any circumstances whatsoever to accept such payment or performance or execute and deliver any such writing. Without limitation, this
Section 17.6(b) shall govern in any case where reference is made in this Agreement or elsewhere in the Loan Documents
to (i) any “cure” (whether by use of such word or otherwise) of any Event of Default, (ii) “during an Event
of Default,” “the continuance of an Event of Default” or “after an Event of Default has ceased” (in each
case, whether by use of such words or otherwise), or (iii) any condition or event which continues beyond the time when the same
becomes an Event of Default.
17.7 Direct
Disbursement and Application by Administrative Agent. During the continuance of an Event of Default, Administrative Agent shall have
the right, but not the obligation, to disburse and directly apply unadvanced proceeds of the Loan to satisfy any of Borrower’s
obligations hereunder or under any of the other Loan Documents, notwithstanding that Borrower may not have included that amount in any
Draw Request. Any advance by Administrative Agent for such purpose, except to the extent made from any Deficiency Collateral, or Proceeds,
shall be part of the Loan and shall be secured by the Loan Documents. Borrower hereby authorizes Administrative Agent, during the continuance
of an Event of Default, to hold, use, disburse and apply the Loan and any such Borrower’s deposit for payment of costs of construction
of the Required Improvements, expenses incident to the Loan, the Collateral and the Property, and the payment or performance of any obligation
of Borrower hereunder or under any of the other Loan Documents. Borrower hereby assigns and pledges the proceeds of the Loan and such
Borrower’s deposit to Administrative Agent for such purposes. During the continuance of an Event of Default, Administrative Agent
may, but shall not be obligated to, advance and incur such expenses as Administrative Agent deems necessary for the completion of construction
of the Required Improvements and to preserve the Property, the Collateral and any other security for the Loan, and such expenses, even
though in excess of the amount of the Loan, shall be secured by the Loan Documents and shall be payable to Administrative Agent within
ten (10) Business Days after delivery to Borrower of written demand. Notwithstanding the foregoing, Administrative Agent may, but
shall not be obligated to, disburse any unadvanced portion of the Loan at any time, and from time to time, to Persons other than Borrower
for the purposes specified in this paragraph irrespective of any other provisions hereof, whether or not there shall exist a Default
or an Event of Default, to the extent Administrative Agent deems such to be necessary for the preservation of the Property, the Collateral,
the liens and security interests of the Pledge Agreements and other Loan Documents, or the safety of Persons with respect to the Property
and the amount of advances to which Borrower shall thereafter be entitled shall be correspondingly reduced.
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XVIII. EXCULPATION.
18.1 Exculpation.
Except as set forth in this Section 18.1, the Guarantees, the Environmental Indemnity and any other guaranty or indemnity
delivered by Borrower or any Guarantor in favor of Secured Party in connection with the Loan from time to time, no personal liability
shall be asserted, sought or obtained by Administrative Agent or any Lender or enforceable against (i) any Affiliate of Borrower
(other than Guarantor pursuant to the Recourse Guaranty) or Guarantor, (ii) any Person owning, directly or indirectly, any legal
or beneficial interest in Borrower (other than Guarantor pursuant to the Recourse Guaranty) or Guarantor or any Affiliate of Borrower
(other than Guarantor pursuant to the Recourse Guaranty) or Guarantor or (iii) any direct or indirect partner, member, principal,
officer, Controlling Person, beneficiary, trustee, advisor, shareholder, employee, agent, Affiliate or director of any Persons described
in clauses (i) and/or (ii) above (collectively, the “Exculpated Parties”) and none of the
Exculpated Parties shall have any personal liability (whether by suit deficiency judgment or otherwise) in respect of the Obligations,
this Agreement, the Pledge Agreements, the Mortgage, the Note, the Collateral, the Property or any other Loan Documents, or the making,
issuance or transfer thereof, all such liability, if any, being expressly waived by Administrative Agent and the Lenders. Notwithstanding
the foregoing or any other provisions of the Loan Documents to the contrary, the foregoing limitation shall not in any way limit or affect
the right of Administrative Agent and the Lenders to pursue any claim against Borrower (which is not an Exculpated Party) and to pursue
any claim with respect to any of the following and Administrative Agent and the Lenders shall not be deemed to have waived any of the
following:
(a) foreclosure
of the lien of this Agreement and/or the Pledge Agreements and/or the Mortgage in accordance with the terms and provisions set forth
herein and therein (but, except as set forth in clause (f) below) without the right to obtain a deficiency judgment in violation
of the provisions of this Section 18.1; provided, however, that this Section 18.1 shall not limit
any obligations under the Guarantees, the Environmental Indemnity or any other guaranty or indemnity delivered by Guarantor in favor
of Secured Party in connection with the Loan from time to time arising in accordance with the terms of the Loan Documents);
(b) action
against any other security at any time given to secure the payment of the Note and under the other Loan Documents;
(c) exercise
of any other remedy set forth in this Agreement or in any other Loan Document which is not inconsistent with, and in all events subject
to, the terms of this Section 18.1;
(d) any
right which Administrative Agent may have under Sections 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code
to file a claim for the full amount of the Debt secured by this Agreement the Mortgage and the Pledge Agreements or to require that all
collateral shall continue to secure all of the Debt owing to Administrative Agent in accordance with the Loan Documents;
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(e) the
liability of any given Exculpated Party with respect to any separate written guaranty or agreement given by any such Exculpated Party
by Guarantor in favor of Secured Party in connection with the Loan (including, without limitation, the Guarantees and the Environmental
Indemnity); or
(f) the
fully recourse personal liability of Borrower and Guarantor (whether by suit deficiency judgment or otherwise) for payment of the Obligations
pursuant to the Loan Agreement, the Pledge Agreements, the Mortgage, the Note or any other Loan Document upon the occurrence of any of
the following events:
(i) Borrower,
Sole Member, Mortgage Borrower or Guarantor commencing a voluntary proceeding, action, petition or filing concerning itself under the
Bankruptcy Code, or any similar state or federal law now or hereafter in effect relating to bankruptcy, reorganization or insolvency,
or the arrangement or adjustment of secured indebtedness;
(ii) any
Borrower Party filing an answer consenting to or otherwise soliciting, supporting, colluding, joining in an involuntary proceeding, action,
petition or filing filed against Borrower, Mortgage Borrower, Sole Member or Guarantor under the Bankruptcy Code, or any similar state
or federal law now or hereafter in effect relating to bankruptcy, reorganization or insolvency, or the arrangement or adjustment of secured
indebtedness with respect to such Borrower Party by any Person other than Administrative Agent, Lenders or their respective Affiliates;
(iii) any
Borrower Party consenting to or otherwise supporting, colluding, joining in an application for the appointment of a custodian, receiver,
trustee, or examiner for Borrower, Mortgage Borrower or Sole Member or any portion of the Property or the Collateral (other than in a
proceeding brought by Administrative Agent, any Lender or their respective Affiliates or at the express request of Administrative Agent
or its Affiliates);
(iv) Borrower,
Sole Member, Mortgage Borrower or Guarantor making an assignment for the benefit of creditors, or admitting in writing, in any legal
or administrative proceeding, its insolvency or inability to pay its debts as they become due (other than (1) at the request of
Administrative Agent or Lenders or their respective agents or employees or in any information provided to Administrative Agent or Lenders
pursuant to the Loan Documents or (2) unless failure to make such admission would be a violation of law) or if Borrower, Sole Member,
Mortgage Borrower or any Guarantor shall institute any proceeding for Borrower, Sole Member’s, Mortgage Borrower’s or Guarantor’s
dissolution or liquidation;
(v) any
Borrower Party seeking substantive consolidation of Borrower, Mortgage Borrower or Sole Member (with or into any entity other than Borrower,
Mortgage Borrower or Sole Member, as applicable) in connection with a proceeding under the Bankruptcy Code, or any similar state or federal
law now or hereafter in effect relating to bankruptcy, reorganization or insolvency, or the arrangement or adjustment of secured indebtedness;
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(vi) if
any Borrower Party raises, asserts or seeks a defense, judicial intervention or injunctive or other equitable relief of any kind, or
asserts in a pleading filed in connection with a judicial proceeding any defense against Administrative Agent or any Lender or any right
in connection with any security for the Loan, including, without limitation, the assertion of any defense with respect to the enforceability
of the Pledge Agreements, the Mortgage or any other Loan Document (or any portion thereof) based on an argument that the mere delivery
or enforcement of the Pledge Agreements or the Mortgage is deemed to have clogged (or otherwise interfered with) the equity (or Borrower’s
right) of redemption, or otherwise constitutes an equitable defense to the enforceability or enforcement of any of the Loan Documents,
and such defense, judicial intervention or injunctive or other equitable relief or right raised, asserted or sought is determined by
a final non-appealable judgment by a court of competent jurisdiction to have been (A) frivolous or (B) intentionally raised
or asserted in bad faith;
(vii) (A) any
Transfer of fee title to all or substantially all of (x) the Property or (y) title to the Collateral, (B) the entering
into any Lease for all or substantially all of the Property in violation of the terms of the Loan Documents, or (C) any Transfer
of any direct and/or indirect, legal and/or beneficial, interest in the Property (or any part thereof), the Collateral (or any part thereof)
or Borrower, Mortgage Borrower or Sole Member which results in the Minimum Hold/Control Requirements no longer being satisfied, in each
case, in violation of the terms of the Loan Documents (other than a mere failure to provide notice of a Transfer permitted hereunder);
(viii) an
act or omission that constitutes a breach of Article IX (Special Purposes Provisions) of this Agreement or the definition
of “Single Purpose Entity” set forth in this Agreement (except with respect to Borrower remaining solvent or maintaining
adequate capital or having sufficient cash flow to pay its debts and liabilities) and such act or omission is adopted by the court in
any bankruptcy proceeding as one of the material factors relied on as the basis for a substantive consolidation of Borrower into the
estate of any other person;
(ix) Borrower
or any Affiliate of Borrower acquires all or any portion of any interest in the Loan or the Mortgage Loan, excluding any interests solely
owned as a result of such Person’s ownership of securities which are listed and traded on the New York Stock Exchange, NASDAQ or
any other nationally recognized securities exchange;
(x) Borrower
failing to obtain Administrative Agent’s prior written consent to any subordinate financing the encumbers the Collateral or the
Property or any portion thereof;
(xi) Intentionally
omitted;
(xii) Any
breach of Section 19.33 and if such breach is curable, the failure to cure such breach within five (5) Business Days
after receipt of written demand from Administrative Agent; provided, however, the maximum liability of Borrower and/or
Guarantor pursuant to this Section 18.1(f)(xii) shall not exceed $10,000,000.00;
(xiii) Intentionally
omitted;
(xiv) Intentionally
omitted;
(xv) Intentionally
omitted;
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(xvi) Any
of Borrower, Sole Member, Mortgage Borrower, any Guarantor or any Affiliate of any of them causes Sole Member or Mortgage Borrower to
amend or otherwise modify its organizational documents in order to repeal or materially amend its election to be governed by Article 8
of the UCC, or any termination or cancellation of the limited liability company membership certificate evidencing Borrower’s one
hundred percent (100%) ownership interest in Sole Member or Sole Member’s one hundred percent (100%) ownership interest in Mortgage
Borrower, as delivered to Administrative Agent on the Closing Date in connection with the Loan Documents (other than at the direction
of Administrative Agent in writing following a circumstance where such limited liability company membership certificate has been lost,
misplaced or destroyed and has requested Borrower to terminate or cancel same and execute a replacement therefor pursuant to the further
assurances provisions of the Loan Documents).
18.2 Carveouts
From Non-Recourse Limitations. Notwithstanding the foregoing or anything in this Agreement or any of the Loan Documents to the contrary,
there shall at no time be any limitation on Borrower’s or Guarantor’s liability for the payment, in accordance with the terms
of this Agreement, the Note, the Pledge Agreements and the other Loan Documents, to Administrative Agent and Lender of (x) any of
the obligations of Borrower under the Environmental Indemnity or (y) any actual loss, damage, cost, expense, liability, claim, suit,
obligation or other amount incurred by Administrative Agent and/or any Lender (including attorneys’ fees and costs actually incurred)
(but expressly excluding any Excluded Liabilities):
(a) fraud,
intentional misrepresentation or willful misconduct by any Borrower Party or any Affiliate of any Borrower Party in connection with the
Loan, the Mortgage Loan, the Collateral or the Property;
(b) intentional
physical waste of the Property to the extent that (A) sufficient cash is available from the Property income (or made available by
Mortgage Administrative Agent out of the Mortgage Reserve Accounts, Mortgage Loan proceeds or otherwise) to prevent such waste and such
cash is not so used by Borrower or any Borrower Party to prevent such waste, and (B) Mortgage Administrative Agent is not otherwise
required under the Loan Documents to pay any such amount directly out of a Mortgage Reserve Account then held by Mortgage Administrative
Agent (or Servicer on behalf of Mortgage Administrative Agent) or from Mortgage Loan proceeds and in each case available for such purpose.
(c) removal
or disposal of any portion of the Property by any Borrower Party in violation of the Loan Documents to the extent such furniture, fixtures
and equipment and/or other similar items removed are not promptly replaced in the normal course of business and removal of obsolete items
no longer required for the operation of the Property;
(d) the
forfeiture by Borrower of the Collateral, the Property or any material portion thereof, caused by or resulting from criminal conduct
or activity by Borrower or any Borrower Party in connection therewith;
(e) any
intentional misrepresentation or intentionally misleading or incorrect certification made by any Borrower Party or any Affiliate of any
Borrower Party in connection with entering into or pursuant to any of the Loan Documents, or otherwise to induce Administrative Agent
and/or Lenders to make the Loan, or any Advance, or to release monies from any account held by (or on behalf of) Administrative Agent
or the Mortgage Administrative Agent and/or any Lender or the Mortgage Lender (including, without limitation, any Collateral Account);
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(f) misapplication,
misappropriation or conversion by or at the direction of any Borrower Party or any Affiliate of any Borrower Party, of (A) any Rents
or other revenue from the Property or any security deposit, (B) Proceeds, (C) any proceeds of the Loan or the Mortgage Loan,
(D) any disbursements from the Reserve Accounts or the Mortgage Reserve Accounts, (E) any Net Sales Proceeds, or (F) any
Net Liquidation Proceeds in each case in violation of the terms of the Loan Documents;
(g) failure
to deliver to Administrative Agent any security deposits, advance deposits, letter of credit or any other deposits collected under Leases
upon the conclusion of a foreclosure of the Property or the Collateral or action in lieu thereof (or assign Mortgage Borrower’s
rights to same to Administrative Agent and/or the Lenders or Mortgage Administrative Agent and/or Mortgage Lenders), to the extent permitted
by applicable law (and to the extent permitted by the terms of any letter of credit, as applicable) except to the extent any such security
deposits were applied in accordance with the terms and conditions of the applicable Leases and the terms of the Loan Documents prior
to such foreclosure or action in lieu thereof;
(h) failure
by Borrower from time to time, to cause Mortgage Borrower to pay Impositions, or pay any charges for labor or materials or other charges
in accordance with this Agreement, the other Loan Documents and the Mortgage Loan Documents that can create Liens on any portion of the
Property or the Collateral; provided that, there shall be no recourse liability under this clause (h) to the extent
(1) funds sufficient to pay such amounts are available in the applicable Reserve Accounts maintained by Administrative Agent or
Mortgage Administrative Agent pursuant to the Loan Documents or the Mortgage Loan Documents, which such funds are available for the purpose
of paying such charges, as applicable, and Administrative Agent or Mortgage Administrative Agent, as applicable, fails to release such
funds in order to pay same (unless such failure by Administrative Agent or Mortgage Administrative Agent is due to Administrative Agent’s
or Mortgage Administrative Agent’s access to such funds being restricted (A) by any Legal Requirement, injunction or other
court order, or (B) as a result of any action, inaction or omission by Borrower, Mortgage Borrower, Sole Member any Guarantor or
any Affiliate of Borrower, Mortgage Borrower, Sole Member or any Guarantor or (2) following Substantial Completion, Rents generated
from the Property and made available to Mortgage Borrower and/or Borrower are insufficient to pay such amounts;
(i) failure
by Borrower to cause Mortgage Borrower to obtain and maintain, from time to time, the fully paid for insurance policies in accordance
with the terms hereof and the Mortgage Loan Documents; provided that, to the extent such failure to obtain and maintain insurance
policies results from the failure to timely pay Insurance Premiums, there shall be no recourse liability under this clause (i) to
the extent (1) funds sufficient to pay such amounts are available in the applicable Reserve Accounts or Mortgage Reserve Accounts
and Administrative Agent or Mortgage Administrative Agent, as applicable, fails to release such funds in order to pay same (unless such
failure by Administrative Agent or Mortgage Administrative Agent, as applicable, is due to Administrative Agent’s or Mortgage Administrative
Agent’s access to such funds being restricted (A) by any Legal Requirement, injunction or other court order, or (B) as
a result of any action, inaction or omission by Borrower, Mortgage Borrower, Sole Member, any Guarantor or any Affiliate of Borrower,
Mortgage Borrower, Sole Member or any Guarantor or (2) following Substantial Completion, Rents generated from the Property and made
available to Borrower and/or Mortgage Borrower are insufficient to pay such amounts;
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(j) the
failure by Borrower to obtain and/or maintain the Interest Rate Cap Agreement, any Replacement Interest Rate Cap Agreement or any Substitute
Interest Rate Cap Agreement when required to do so under the Loan Agreement;
(k) the
failure by Borrower to permit (or cause Mortgage Borrower to permit) on-site inspections of the Property as and when required under the
provisions of this Agreement (including, without limitation, Sections 5.1.17 (Access to Property) and 5.8.4 (Inspection
of Project and Books and Records; Reports)) or any other Loan Documents;
(l) the
failure of Borrower to comply with any provisions set forth in Article XI (Books and Records, Financial Statements, Reports
and Other Information) of this Agreement; provided, that no liability shall occur pursuant to this Section 18.2(l) if
(x) such failure occurs no more than two (2) times in the aggregate during the term of the Loan and (y) if such failure
is cured within ten (10) days after receipt of notice of such failure from Administrative Agent;
(m) an
act or omission that constitutes a breach of Article IX (Special Purpose Provisions) of this Agreement or the definition
of “Single Purpose Entity” set forth therein (except with respect to Borrower remaining solvent or maintaining adequate
capital or having sufficient cash flow to pay its debts and liabilities);
(n) intentionally
omitted;
(o) intentionally
omitted;
(p) any
distributions made by Borrower Party in violation of the terms of the Loan Documents;
(q) intentionally
omitted;
(r) Borrower,
Mortgage Borrower or Sole Member incurs any voluntary Indebtedness (other than any Permitted Indebtedness), whether or not secured by
a Lien, in violation of the terms of the Loan Document; provided, that no liability shall result from this Section 18.2(r) as
a result of any Indebtedness that is not Permitted Indebtedness, but would have constituted Permitted Indebtedness but for (I) the
failure to satisfy the conditions in clauses (c)(x) or (c)(y) of the definition of Permitted Indebtedness, or
(II) such Indebtedness being in excess of the monetary threshold in clause (c) of the definition of Permitted Indebtedness,
so long as the failure to satisfy such condition(s) and/or such excess Indebtedness was inadvertent and such amounts are promptly
paid by or on behalf of Borrower within five (5) days after written notice from Administrative Agent regarding such failure;
(s) any
Transfer of any direct and/or indirect legal and/or beneficial interest in the Property or the Collateral (or any part of any of the
foregoing) or Borrower, in any case, in violation of the Loan Documents (other than a Transfer covered by Section 18.1(f)(vii));
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(t) intentionally
omitted;
(u) any
labor withdrawal liability or similar amounts incurred by Borrower or any Affiliate of Borrower for which Administrative Agent or any
Lender becomes obligated, directly or indirectly, upon the conclusion of a foreclosure of the Property or the Collateral or action in
lieu thereof;
(v) intentionally
omitted;
(w) (A) any
obligation of Mortgage Borrower, Sole Member or Borrower to indemnify any Person that, immediately prior to any acquisition of title
to the Collateral pursuant to a UCC foreclosure sale, a UCC strict foreclosure, an assignment in lieu of foreclosure or other enforcement
action under the Loan Documents (collectively, an “Equity Collateral Enforcement Action”; and the date on which an
Equity Collateral Enforcement Action is consummated, an “Equity Collateral Transfer Date”), was an Affiliate of Mortgage
Borrower, Sole Member or Borrower, to the extent such obligation continues to be the obligation of the transferee at such Equity Collateral
Enforcement Action and (B) any obligation of Mortgage Borrower, Sole Member or Borrower accruing prior to, on or after the Equity
Collateral Transfer Date to pay (1) legal fees to counsel engaged by Mortgage Borrower, Sole Member or Borrower prior to the Equity
Collateral Transfer Date, (2) amounts due under any contract between Mortgage Borrower, Sole Member or Borrower, on the one hand,
and any of Borrower, Sole Member, Mortgage Borrower, any Guarantor or any Affiliate of any of them, on the other hand (unless such contract
is assumed in writing by the Person acquiring the Collateral on or after the Equity Collateral Transfer Date), or (3) amounts due
under any contract between any of Borrower, Sole Member, Mortgage Borrower, any Guarantor or any Affiliate of any of them, on the one
hand, and any Person that is not an Affiliate of any of Borrower, Sole Member, Mortgage Borrower, any Guarantor or any Affiliate of any
of them, on the other hand, that has been entered into in violation of this Agreement or the other Loan Documents (unless such contract
(I) was assumed in writing by the Person acquiring the Collateral on or after the Equity Collateral Transfer Date or (II) can
be terminated by the Person acquiring the Collateral without the obligation to pay any termination fee, liquidated damages or similar
fees with such termination) and/or following the completion of any Equity Collateral Enforcement Action, any accounts payable of any
of Borrower, Sole Member, Mortgage Borrower, or any income tax or indemnity liability of any of Borrower, Sole Member or Mortgage Borrower,
to third parties or to any other of Borrower, Sole Member, Mortgage Borrower, any Guarantor or any Affiliate of any of them;
18.3 Survival.
The obligations and liabilities of Borrower under this Article 18 shall fully survive indefinitely notwithstanding any termination,
satisfaction, assignment, entry of a judgment of foreclosure, exercise of any power of sale, or delivery of an assignment in lieu of
foreclosure of the Mortgage or the Pledge Agreements.
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XIX. MISCELLANEOUS.
19.1 Survival.
This Agreement and all covenants, indemnifications, agreements, representations and warranties made herein and in the certificates delivered
pursuant hereto shall survive the making by Administrative Agent of the Loan and the execution and delivery to Administrative Agent of
the Note, and shall continue in full force and effect so long as all or any of the Debt is outstanding and unpaid unless a longer period
is expressly set forth herein or in the other Loan Documents. Whenever in this Agreement any of the parties hereto is referred to, such
reference shall be deemed to include the legal representatives, successors and assigns of such party. All covenants, promises and agreements
in this Agreement, by or on behalf of Borrower, shall inure to the benefit of the legal representatives, successors and assigns of Administrative
Agent. Notwithstanding anything to the contrary set forth herein or in any of the other Loan Documents, wherever the words “as
long as all or any of the Debt is outstanding or unpaid”, “any portion of the Debt exists”, “performance in full
of the Debt”, “the Debt has been paid in full” and “repayment of the Debt” and words of similar import
when used in this Agreement or in any of the other Loan Documents are used to mean that it is a condition that the Debt is satisfied,
performed, repaid, no longer exists or no longer remains outstanding, then such condition shall be deemed to include the further condition
that either (i) the Commitment is fully funded or (ii) any then unfunded portion of the Commitment has been terminated in accordance
with the terms of this Agreement.
19.2 Administrative
Agent’s Discretion. Whenever pursuant to this Agreement, Administrative Agent exercises any right given to it to approve or
disapprove, or any arrangement or term is to be satisfactory to Administrative Agent, the decision of Administrative Agent to approve
or disapprove or to decide whether arrangements or terms are satisfactory or not satisfactory shall (except as is otherwise specifically
herein provided) be in the sole discretion of Administrative Agent and shall be final and conclusive. Notwithstanding anything to the
contrary contained herein or in any of the other Loan Documents, during the existence of an Event of Default under this Agreement or
any of the other Loan Documents, any consent, approval or decision of Administrative Agent or the Lenders that is herein or therein provided
to be in the “reasonable” discretion of Administrative Agent or the Lenders (as applicable), or words of similar import,
shall instead be deemed to be subject to the sole and absolute discretion of Administrative Agent or the Lenders (as applicable). To
the extent that, pursuant to any co-lender agreement, Administrative Agent is required to obtain the consent of any Lender or Lenders
prior to granting its consent or approval with respect to any matter under the Loan Documents, and the applicable Lender or Lenders do
not grant such consent, then Administrative Agent’s failure to consent or approve any such matter shall be deemed reasonable for
all purposes under the Loan Documents.
19.3 GOVERNING
LAW.
(a) THIS
AGREEMENT WAS NEGOTIATED IN THE STATE OF NEW YORK, THE LOAN WAS MADE BY ADMINISTRATIVE AGENT AND THE PROCEEDS OF THE LOAN DELIVERED PURSUANT
HERETO WERE DISBURSED FROM THE STATE OF NEW YORK, WHICH STATE THE PARTIES IRREVOCABLY AND UNCONDITIONALLY AGREE HAS A SUBSTANTIAL RELATIONSHIP
TO THE PARTIES AND TO THE UNDERLYING TRANSACTION EMBODIED HEREBY, AND IN ALL RESPECTS, INCLUDING, WITHOUT LIMITING THE GENERALITY
OF THE FOREGOING, MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, EACH AND ALL OF THIS AGREEMENT, THE NOTE, THE OTHER LOAN DOCUMENTS,
AND THE OBLIGATIONS ARISING HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE (WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS) AND ANY APPLICABLE
LAW OF THE UNITED STATES OF AMERICA. EXCEPT THAT AT ALL TIMES THE ATTACHMENT, CREATION, PERFECTION, AND ENFORCEMENT OF THE LIENS AND
SECURITY INTERESTS CREATED UNDER THE LOAN DOCUMENTS IN FAVOR OF ADMINISTRATIVE AGENT AND LENDERS IN RESPECT OF REAL PROPERTY SHALL BE
GOVERNED BY AND CONSTRUED ACCORDING TO THE LAW OF THE STATE IN WHICH SUCH REAL PROPERTY IS LOCATED, IT BEING UNDERSTOOD THAT, TO
THE FULLEST EXTENT PERMITTED BY THE LAW OF SUCH STATE, THE LAW OF THE STATE OF NEW YORK SHALL GOVERN THE CONSTRUCTION, VALIDITY AND ENFORCEABILITY
OF THIS AGREEMENT, THE NOTE AND THE LOAN AND ALL OF THE OBLIGATIONS ARISING HEREUNDER OR THEREUNDER. TO THE FULLEST EXTENT PERMITTED
BY LAW BORROWER HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY CLAIM TO ASSERT THAT THE LAW OF ANY OTHER JURISDICTION GOVERNS THIS
AGREEMENT, THE NOTE AND/OR THE LOAN, AND THIS AGREEMENT, THE NOTE AND THE LOAN SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK PURSUANT TO SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
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(b) ANY
LEGAL SUIT, ACTION OR PROCEEDING AGAINST SECURED PARTY OR BORROWER ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE INSTITUTED IN
ANY FEDERAL OR STATE COURT IN THE CITY OF NEW YORK, COUNTY OF NEW YORK, PURSUANT TO SECTION 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS
LAW, AND BORROWER AND SECURED PARTY EACH WAIVES ANY OBJECTIONS WHICH IT MAY NOW OR HEREAFTER HAVE BASED ON VENUE AND/OR FORUM NON
CONVENIENS OF ANY SUCH SUIT, ACTION OR PROCEEDING, AND BORROWER AND SECURED PARTY EACH HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION
OF ANY SUCH COURT IN ANY SUIT, ACTION OR PROCEEDING. BORROWER DOES HEREBY DESIGNATE AND APPOINT:
Cogency Global Inc.
122 East 42nd Street, 18th Floor
New York, NY 10168
AS ITS AUTHORIZED AGENT TO ACCEPT AND ACKNOWLEDGE
ON ITS BEHALF SERVICE OF ANY AND ALL PROCESS WHICH MAY BE SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY FEDERAL OR STATE
COURT IN NEW YORK, NEW YORK, AND AGREES THAT SERVICE OF PROCESS UPON SAID AGENT AT SAID ADDRESS AND WRITTEN NOTICE OF SAID SERVICE MAILED
OR DELIVERED TO BORROWER IN THE MANNER PROVIDED HEREIN SHALL BE DEEMED IN EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON BORROWER IN
ANY SUCH SUIT, ACTION OR PROCEEDING IN THE STATE OF NEW YORK. BORROWER (I) SHALL GIVE PROMPT NOTICE TO ADMINISTRATIVE AGENT OF ANY
CHANGED ADDRESS OF ITS AUTHORIZED AGENT HEREUNDER, (II) MAY AT ANY TIME AND FROM TIME TO TIME DESIGNATE A SUBSTITUTE AUTHORIZED
AGENT WITH AN OFFICE IN NEW YORK, NEW YORK (WHICH SUBSTITUTE AGENT AND OFFICE SHALL BE DESIGNATED AS THE PERSON AND ADDRESS FOR SERVICE
OF PROCESS), AND (III) SHALL PROMPTLY DESIGNATE SUCH A SUBSTITUTE IF ITS AUTHORIZED AGENT CEASES TO HAVE AN OFFICE IN NEW YORK,
NEW YORK OR IS DISSOLVED WITHOUT LEAVING A SUCCESSOR.
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19.4 Modification,
Waiver in Writing. Any provision of this Agreement, the Note or other Loan Documents may be amended or waived if, but only if, such
amendment or waiver is in writing and is signed by Borrower, Administrative Agent and (unless otherwise agreed to by the Lenders) the
Lenders.
19.5 Delay
Not a Waiver. Neither any failure nor any delay on the part of Administrative Agent in insisting upon strict performance of any term,
condition, covenant or agreement, or exercising any right, power, remedy or privilege hereunder, or under the Note or under any other
Loan Document, or any other instrument given as security therefor, shall operate as or constitute a waiver thereof, nor shall a single
or partial exercise thereof preclude any other future exercise, or the exercise of any other right, power, remedy or privilege. In particular,
and not by way of limitation, by accepting payment after the due date of any amount payable under this Agreement, the Note or any other
Loan Document, Administrative Agent shall not be deemed to have waived any right either to require prompt payment when due of all other
amounts due under this Agreement, the Note or the other Loan Documents, or to declare a default for failure to effect prompt payment
of any such other amount.
19.6 Notices.
(a) All
notices, elections, consents, approvals, requests and demands (any of the foregoing, a “Notice”) required or permitted
hereunder or under any other Loan Document shall be given in writing and shall be effective for all purposes if sent by (i) hand
delivery against receipt, or (ii) certified or registered United States mail, postage prepaid, return receipt requested, (iii) expedited
prepaid delivery service, either commercial or United States Postal Service, with proof of attempted delivery, or (iv) sent s a
.pdf attachment to an email (provided that any Notice sent by e-mail is also delivered by one of the other means for Notices set
forth in this Section 19.6) addressed as follows (or at such other address and Person as shall be designated from time to
time by any party hereto, as the case may be, in a written notice to the other parties hereto in the manner provided for in this Section 19.6):
If to Administrative Agent
NREF OP IV REIT
SUB, LLC
300 Crescent Court, Suite 700
Dallas, TX 75201
Attention: Legal Department
and to:
Winston & Strawn LLP
333 S. Grand Avenue, 38th Floor,
Los Angeles, California 90071
Attention: Bruce W. Fraser
If to any Lender:
c/o NREF OP IV REIT SUB, LLC
300 Crescent Court, Suite 700
Dallas, TX 75201
Attention: Legal Department
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If to Borrower:
c/o IQHQ, LP
674 Via De La Valle, Suite 206
Solana Beach, California 92075
Attention: Legal Department
With a copy to:
Gibson, Dunn & Crutcher
LLP
333 South Grand Avenue
Las Angeles, California 90071
Attention: L. Mark Osher, Esq.
All Notices shall be effective and deemed received
upon the earliest of (i) the actual receipt of the same by personal delivery, (ii) one (1) Business Day after being deposited
with a nationally recognized overnight courier service as required above, (iii) three (3) Business Days after being deposited
in the United States mail as required above or (iv) in the case of e-mail, either (x) as of the date of the e-mail, if such
e-mail was sent prior to 4 P.M. EST and such e-mail was not rejected by the recipient’s e-mail server, or (y) on the
Business Day immediately succeeding the date of the e-mail, if such email was sent after 4 P.M. EST and such e-mail was not rejected
by the recipient’s e-mail server (provided, that in all cases a copy of any Notice sent by e-mail is also sent to the intended
addresses by one of the other means for Notices set forth in this Section 19.6) and the subject line of such e-mail begins
with the following words in all capital letters: “MESSAGE CONTAINS WRITTEN CORRESPONDENCE UNDER LOAN DOCUMENTS”. Rejection
or other refusal to accept or the inability to deliver because of changed address of which no notice was given as herein required shall
be deemed to be receipt of the Notice sent.
(b) Notices
and other communications to Administrative Agent or any Lender hereunder may be delivered or furnished by using Electronic Systems pursuant
to procedures approved by Administrative Agent. Either Administrative Agent or Borrower may, in its discretion, agree to accept notices
and other communications to it hereunder by electronic communications pursuant to procedures approved by it; provided that approval
of such procedures may be limited to particular notices or communications.
(c) Borrower
agrees that Administrative Agent may, but shall not be obligated to, make Communications (as defined below) available to the Lenders
by posting the Communications on Debt Domain, Intralinks, StructuredFN, Syndtrak, ClearPar or a substantially similar Electronic
System. Any Electronic System used by Administrative Agent is provided “as is” and “as available”. Administrative
Agent does not warrant the adequacy of such Electronic Systems and expressly disclaim liability for errors or omissions in the Communications.
No warranty of any kind, express, implied or statutory, including any warranty of merchantability, fitness for a particular purpose,
non-infringement of third-party rights or freedom from viruses or other code defects, is made by Administrative Agent in connection with
the Communications or any Electronic System. In no event shall Administrative Agent have any liability to Borrower, any Lender, or any
other Person or entity for damages of any kind, including direct or indirect, special, incidental or consequential damages, losses or
expenses (whether in tort, contract or otherwise) arising out of Borrower’s or Administrative Agent’s transmission of communications
through an Electronic System. As used herein, “Communications” means, individually and/or collectively, as the context
may require, any notice, demand, communication, information, document or other material provided by or on behalf of Borrower pursuant
to any Loan Document or the transactions contemplated therein which is distributed by Administrative Agent or any Lender by means of
electronic communications pursuant to this Section, including through an Electronic System.
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19.7 TRIAL
BY JURY. EACH OF BORROWER, LENDERS AND ADMINISTRATIVE AGENT AND ALL PERSONS CLAIMING BY, THROUGH OR UNDER EITHER OF THEM, HEREBY
EXPRESSLY, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION
(I) ARISING UNDER THIS AGREEMENT, THE MORTGAGE, THE PLEDGE AGREEMENTS, THE NOTE OR ANY OTHER LOAN DOCUMENT, INCLUDING, WITHOUT
LIMITATION, ANY PRESENT OR FUTURE MODIFICATION THEREOF OR (II) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS
OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO THIS AGREEMENT, THE PLEDGE AGREEMENTS, THE NOTE OR ANY OTHER LOAN DOCUMENT (AS NOW
OR HEREAFTER MODIFIED) OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR THE TRANSACTIONS
RELATED HERETO OR THERETO, IN EACH CASE WHETHER SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION IS NOW EXISTING OR HEREAFTER ARISING,
AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE; AND EACH OF BORROWER, LENDERS AND ADMINISTRATIVE AGENT HEREBY AGREES AND CONSENTS
THAT AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION MAY BE FILED WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT
HERETO TO THE WAIVER OF ANY RIGHT TO TRIAL BY JURY EACH PARTY ACKNOWLEDGES THAT IT HAS CONSULTED WITH LEGAL COUNSEL REGARDING THE MEANING
OF THIS WAIVER AND ACKNOWLEDGES THAT THIS WAIVER IS AN ESSENTIAL INDUCEMENT FOR THE ENTERING INTO OF THIS AGREEMENT. THIS WAIVER SHALL
SURVIVE THE REPAYMENT OF THE LOAN.
19.8 Headings.
The Article and/or Section headings and the Table of Contents in this Agreement are included herein for convenience of reference
only and shall not constitute a part of this Agreement for any other purpose.
19.9 Severability.
Wherever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective
to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of
this Agreement.
19.10 Preferences.
Subject to the terms of the Intercreditor Agreement, each Lender shall have the continuing and exclusive right to apply or reverse and
reapply any and all payments by Borrower to any portion of the obligations of Borrower hereunder. To the extent Borrower makes a payment
or payments to Administrative Agent, which payment or proceeds or any part thereof are subsequently invalidated, declared to be fraudulent
or preferential, set aside or required to be repaid to a trustee, receiver or any other party under any bankruptcy law, state or federal
law, common law or equitable cause, then, to the extent of such payment or proceeds received, the obligations hereunder or part thereof
intended to be satisfied shall be revived and continue in full force and effect, as if such payment or proceeds had not been received
by Administrative Agent.
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19.11 Waiver
of Notice. Borrower shall not be entitled to any notices of any nature whatsoever from Administrative Agent except with respect to
matters for which this Agreement or the other Loan Documents specifically and expressly provide for the giving of notice by Administrative
Agent to Borrower and except with respect to matters for which Borrower is not, pursuant to applicable Legal Requirements, permitted
to waive the giving of notice. Borrower hereby expressly waives the right to receive any notice from Administrative Agent with respect
to any matter for which this Agreement or the other Loan Documents do not specifically and expressly provide for the giving of notice
by Administrative Agent to Borrower.
19.12 Expenses;
Indemnity.
(a) Borrower
covenants and agrees to pay or, if Borrower fails to pay, to reimburse, Administrative Agent and each Lender within ten (10) Business
Days of written notice from Administrative Agent for all reasonable-out-of-pocket costs and expenses (including reasonable attorneys’
fees and disbursements) actually incurred by Administrative Agent and each Lender in connection with (i) the preparation, negotiation,
execution and delivery of this Agreement and the other Loan Documents and the consummation of the transactions contemplated hereby and
thereby and all the costs of furnishing all opinions by counsel for Borrower (including without limitation any opinions requested by
Administrative Agent pursuant to this Agreement); (ii) Borrower’s ongoing performance of and compliance with Borrower’s
respective agreements and covenants contained in this Agreement and the other Loan Documents on its part to be performed or complied
with after the Closing Date, including, without limitation, confirming compliance with environmental and insurance requirements; (iii) Administrative
Agent’s and each Lender’s ongoing performance and compliance with all agreements and conditions contained in this Agreement
and the other Loan Documents on its part to be performed or complied with after the Closing Date; (iv) the negotiation, preparation,
execution, delivery and administration of any consents, amendments, waivers or other modifications to this Agreement and the other Loan
Documents and any other documents or matters as required herein or under the other Loan Documents or otherwise requested by Borrower;
(v) securing Borrower’s compliance with any requests made pursuant to the provisions of this Agreement; (vi) the filing
and recording fees and expenses, mortgage recording taxes, costs of environmental reports, appraisals and other reports, title insurance
and reasonable out-of-pocket fees and expenses of counsel for providing to Administrative Agent and each Lender all required legal opinions,
and other similar expenses incurred in creating and perfecting the Lien in favor of Administrative Agent and each Lender pursuant to
this Agreement and the other Loan Documents; (vii) enforcing or preserving any rights, in response to third party claims or the
prosecuting or defending of any action or proceeding or other litigation, in each case against, under or affecting Borrower, this Agreement,
the other Loan Documents, the Property, the Collateral or any other security given for the Loan; and (viii) enforcing any obligations
of or collecting any payments due from Borrower under this Agreement, the other Loan Documents or with respect to the Property or the
Collateral or in connection with any refinancing or restructuring of the credit arrangements provided under this Agreement in the nature
of a work out or of any insolvency or bankruptcy proceedings; provided, however, that Borrower shall not be liable for
the payment of any such costs and expenses to the extent the same constitute general overhead expenses of Administrative Agent or any
Lender or arise by reason of the gross negligence, illegal acts, fraud or willful misconduct of Administrative Agent or the Lenders.
Any cost and expenses due and payable to Administrative Agent may be paid from any amounts in the Reserve Accounts.
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(b) Borrower
will protect, indemnify and save harmless Administrative Agent and each Lender, and all officers, directors, stockholders, members, partners,
employees, agents, successors and assigns of Administrative Agent and each Lender (collectively, the “Indemnified Parties”)
from and against any and all claims, suits, liabilities (including, without limitation, strict liabilities), actions, proceedings, obligations,
debts, damages, losses, costs, expenses, diminutions in value, fines, penalties, charges, fees, expenses, judgments, awards, amounts
paid in settlement, punitive damages, foreseeable and unforeseeable consequential damages, of whatever kind or nature (including all
reasonable out-of-pocket attorneys’ fees and expenses actually incurred) (collectively, the “Losses”) that may
be imposed upon or incurred by or asserted against the Indemnified Parties or the Property or any part of its interest therein or any
part of its interest therein or the Collateral or any part of its interest therein (but expressly excluding any consequential, punitive,
special, exemplary or other indirect damages unless any third party makes any claim or demand upon Administrative Agent or Lender for
damages on account of consequential, punitive, special or other indirect damages), by reason of the occurrence or existence of any of
the following prior to (i) the acceptance by Administrative Agent or its designee of a deed-in-lieu of foreclosure with respect
to the Property or an assignment-in-lieu of foreclosure with respect to the Collateral, or (ii) an Indemnified Party or its designee
taking possession or control of the Property or the Collateral or (iii) the foreclosure of the Mortgage or any Pledge Agreement,
except, in the case of each of the foregoing, to the extent caused by the actual willful misconduct, gross negligence, illegal acts or
fraud of the Indemnified Parties (other than such willful misconduct or gross negligence imputed to the Indemnified Parties because of
their interest in the Property): (1) ownership of Mortgage Borrower’s interest in the Property, or any interest therein, or
receipt of any Rents or other sum therefrom, (2) any amendment to, or restructuring of, the Debt, the Note, this Agreement, the
Mortgage, any Pledge Agreement, or any other Loan Documents, (3) any and all lawful action that may be taken by Secured Party in
connection with the enforcement of the provisions of the Mortgage or any Pledge Agreement or this Agreement or any of the other Loan
Documents, whether or not suit is filed in connection with same, or in connection with Borrower, any guarantor or indemnitor and/or any
partner, joint venturer or shareholder thereof becoming a party to a voluntary or involuntary federal or state bankruptcy, insolvency
or similar proceeding, (4) any accident, injury to or death of any persons or loss of or damage to property occurring on or about
the Property or any appurtenances thereto, (5) any design, construction, operation, repair, maintenance, use, non-use or condition
of the Property or appurtenances thereto, including claims or penalties arising from violation of any Legal Requirement or Insurance
Requirement, as well as any claim based on any patent or latent defect, whether or not discoverable by Administrative Agent, any claim
the insurance as to which is inadequate, (6) any Default under this Agreement or any of the other Loan Documents or any failure
on the part of Borrower to perform or comply with any of the terms of any Lease within the applicable notice or grace periods, (7) any
performance of any labor or services or the furnishing of any materials or other property in respect of the Property or any part thereof,
(8) any negligence or tortious act or omission on the part of Borrower or any of its agents, contractors, servants, employees, sublessees,
licensees or invitees, (9) any contest referred to in Section 7.3 hereof, (10) any failure of the Property to be
in compliance with any Legal Requirements, (11) the enforcement by any Indemnified Party of the provisions of this Section 19.12,
(12) the payment of any commission, charge or brokerage fee to anyone claiming through Borrower which may be payable in connection with
the funding of the Loan, (13) any lien or claim arising on or against the Property or the Collateral or any part thereof under any Legal
Requirement or any liability asserted against any of the Indemnified Parties with respect thereto, (14) the claims of any lessee or any
Person acting through or under any lessee or otherwise arising under or as a consequence of any Lease or (15) any obligation or undertaking
relating to the performance or discharge of any of the terms, covenants and conditions of the landlord contained in the Leases. Any amounts
the Indemnified Parties are legally entitled to receive under this Section which are not paid within ten (10) Business Days
after written demand therefor by the Indemnified Parties or Administrative Agent, setting forth in reasonable detail the amount of such
demand and the basis therefor, shall bear interest from and after the date incurred at the Default Rate until paid in full, and shall,
together with such interest, be part of the Debt and secured by Pledge Agreements and the Mortgage. In case any action, suit or proceeding
is brought against the Indemnified Parties by reason of any such occurrence, Borrower shall at Borrower’s expense resist and defend
such action, suit or proceeding or will cause the same to be resisted and defended by counsel at Borrower’s expense for the insurer
of the liability or by counsel designated by Borrower (unless disapproved by Administrative Agent in its reasonable discretion within
a reasonable time after Administrative Agent has been notified of such counsel); provided, however, that nothing herein
shall compromise the right of Administrative Agent (or any Indemnified Party) to appoint its own counsel at Borrower’s expense
for its defense with respect to any action which in its reasonable opinion presents a conflict or potential conflict between Administrative
Agent and Borrower that would make such separate representation advisable; provided, further, that if Administrative Agent
shall have appointed separate counsel pursuant to the foregoing, Borrower shall not be responsible for the expense of additional separate
counsel of any Indemnified Party unless in the reasonable opinion of Administrative Agent a conflict or potential conflict exists between
such Indemnified Party and Administrative Agent. So long as Borrower is resisting and defending such action, suit or proceeding as provided
above in a prudent and commercially reasonable manner, Administrative Agent and the Indemnified Parties shall not be entitled to settle
such action, suit or proceeding and Administrative Agent agrees that it will not settle any such action, suit or proceeding without the
reasonable consent of Borrower; provided, however, that if Borrower is not diligently defending such action, suit or proceeding
in a prudent and commercially reasonable manner as provided above, and Administrative Agent has provided Borrower with thirty (30) days’
prior written notice, or shorter period if mandated by the requirements of applicable law, and opportunity to correct such determination,
Administrative Agent may settle such action, suit or proceeding and claim the benefit of this Section 19.12 with respect
to settlement of such action, suit or proceeding. Any Indemnified Party will give Borrower prompt notice after such Indemnified Party
obtains actual knowledge of any potential claim by such Indemnified Party for indemnification hereunder. The Indemnified Parties shall
not settle or compromise any action, proceeding or claim which it is entitled to settle or compromise hereunder without notice to Borrower.
The obligations and liabilities of Borrower under this Section 19.12 shall fully survive indefinitely notwithstanding any
repayment of the Debt or any termination, satisfaction, assignment, entry of a judgment of foreclosure, exercise of any power of sale,
or delivery of a deed in lieu of foreclosure of the Mortgage or any Pledge Agreement. This Section 19.12(b) shall not
apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim.
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19.13 Remedies
of Borrower. In the event that a claim or adjudication is made (except any claim or adjudication arising out of any exercise of remedies
by Administrative Agent) that Administrative Agent, any Lender, or any of their respective agents have acted unreasonably or unreasonably
delayed acting in any case where by law or under this Agreement or the other Loan Documents, Administrative Agent, such Lender or such
agent, as the case may be, has an obligation to act reasonably or promptly, Borrower agrees that neither Administrative Agent, any Lender
nor any of their respective agents shall be liable for any monetary damages, and Borrower’s sole remedies shall be limited to commencing
an action seeking injunctive relief or declaratory judgment. The parties hereto agree that any action or proceeding to determine whether
Administrative Agent or any Lender has acted reasonably shall be determined by an action seeking declaratory judgment. If a court of
competent jurisdiction shall determine that, notwithstanding anything set forth herein to the contrary, Borrower may set off or deduct
from amounts payable hereunder, then any such right shall apply only as against the applicable Defaulting Lender with respect to which
Borrower’s limited right to set off or deduct any such amounts arose.
19.14 Incorporation.
The Exhibits and Schedules annexed hereto are hereby incorporated herein as a part of this Agreement with the same effect as if set forth
in the body hereof.
19.15 Offsets,
Counterclaims and Defenses. Any assignee of Administrative Agent’s interest in and to this Agreement, the Note and the other
Loan Documents shall take the same free and clear of all offsets, counterclaims or defenses which are unrelated to such documents which
Borrower may otherwise have against any assignor of such documents, and no such unrelated counterclaim or defense shall be interposed
or asserted by Borrower or in any action or proceeding brought by any such assignee upon such documents and any such right to interpose
or assert any such unrelated offset, counterclaim or defense in any such action or proceeding is hereby expressly waived by Borrower.
19.16 Liability
of Assignees of Administrative Agent. No assignee of Administrative Agent shall have any personal liability, directly or indirectly,
under or in connection with this Agreement or any other Loan Document or any amendment or amendments hereto made at any time or times,
heretofore or hereafter, any different than the liability of Administrative Agent hereunder. In addition, no assignee shall have at any
time or times hereafter any personal liability, directly or indirectly, under or in connection with or secured by any agreement, lease,
instrument, encumbrance, claim or right affecting or relating to the Property, the Collateral or to which the Property or the Collateral
is now or hereafter subject any different than the liability of Administrative Agent hereunder. The limitation of liability provided
in this Section 19.16 is (i) in addition to, and not in limitation of, any limitation of liability applicable to the
assignee provided by law or by any other contract, agreement or instrument, and (ii) shall not apply to any assignee’s gross
negligence or willful misconduct.
19.17 No
Joint Venture or Partnership; No Third Party Beneficiaries.
(a) Borrower
and Administrative Agent intend that the relationships created hereunder and under the other Loan Documents be solely that of borrower
and administrative agent. Nothing herein or therein is intended to create a joint venture, partnership, tenancy in common, or joint tenancy
relationship between Borrower and Administrative Agent nor to grant Administrative Agent any interest in the Property or the Collateral
other than that of mortgagee, beneficiary or Administrative Agent.
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(b) This
Agreement is solely for the benefit of Borrower and Secured Party and nothing contained herein or in any other Loan Document be deemed
to confer on anyone other than Borrower and Secured Party the right to insist upon, enforce or waive the performance or observance of
any of the terms and conditions hereof or thereof. All conditions to the obligations of Secured Party to make the Loan hereunder are
imposed solely and exclusively for the benefit of Secured Party and no other Person, including, without limitation, any Person providing
title insurance with respect to the Collateral, the Property, the Mortgage or the Pledge Agreements, shall have standing to require satisfaction
of such conditions in accordance with their terms or be entitled to assume that Secured Party will refuse to make the Loan in the absence
of strict compliance with any or all thereof. This Agreement shall not be construed to make or render Secured Party liable to any materialmen,
contractors, subcontractors, laborers or others for goods and materials supplied or work and labor furnished in connection with the construction
of the Improvements or for debts or claims accruing to any such Persons against Borrower. Secured Party shall not be liable for the manner
in which any Advances under this Agreement may be applied by Borrower, Mortgage Borrower, General Contractor and any of Borrower’s
or Mortgage Borrower’s other contractors or subcontractors. Notwithstanding anything contained in the Loan Documents, or any conduct
or course of conduct by the parties hereto, before or after signing the Loan Documents, this Agreement shall not be construed as creating
any rights, claims or causes of action against Lender, or any of its officers, directors, agents or employees, in favor of any Person
providing title insurance with respect to the Property, the Collateral, the Mortgage or the Pledge Agreements, materialmen, contractor,
subcontractor, laborer, or any other Person other than Borrower. Without limiting the generality of the foregoing, Loan Advances or Mortgage
Loan Advances made to any materialmen, contractor, subcontractor or laborer, pursuant to any requests for Advances, whether or not such
request is required to be approved by Borrower, shall not be deemed a recognition by Secured Party of a third party beneficiary status
of any such Person.
19.18 Publicity.
All news releases, publicity or advertising by Borrower or its Affiliates or Administrative Agent or the Lenders or any of their Affiliates
through any media intended to reach the general public which refers to the Loan Documents or the financing evidenced by the Loan Documents
shall be subject to the prior written reasonable approval of Administrative Agent. Notwithstanding the foregoing, disclosures required
by applicable Legal Requirements, as reasonably determined by Administrative Agent and/or Borrower, shall not be subject to the prior
written approval of any Person. Following the execution of this Agreement, Borrower shall place (or cause to be placed) a sign, approved
in form and substance by Administrative Agent but at Borrower’s cost and expense, on the Property at a location satisfactory to
Administrative Agent indicating, among other things, that Lenders are providing the financing for construction of the Improvements. Administrative
Agent and Lender agree to treat the Information (as defined below) as confidential using the same degree of care as it would accord to
its own confidential information, except that Information may be disclosed (i) to Administrative Agent’s and each Lender’s
respective Affiliates and their respective managers, administrators, accountants, auditors, trustees, partners, directors, officers,
employees, agents, advisors and other representatives (it being understood that the Persons to whom such disclosure is made will be informed
of the confidential nature of such Information and instructed to keep such Information confidential), (ii) to the extent requested
by any regulatory authority purporting to have jurisdiction over it (including any bank examiner or self-regulatory authority): provided,
however, in such case, (x) unless Administrative Agent or any Lender is required to disclose such Information to the applicable
regulatory authority in connection with requests during regulatory examinations to which Administrative Agent or any such Lender is subject,
Administrative Agent shall provide Borrower or Guarantor with prompt notice of such request, unless Administrative Agent shall be prohibited
under Legal Requirements from providing such notice, so that Guarantor may seek an appropriate protective order, at Guarantor’s
sole cost and expense, and (y) for the avoidance of doubt, in the absence of such a protective order, Administrative Agent and each
Lender may disclose such Information without liability under this Agreement, (iii) to the extent required by applicable laws or
regulations or by any subpoena or similar legal or judicial process: provided, however, in such case (x) Administrative
Agent shall provide Borrower or Guarantor with prompt notice of such request or requirement, unless Administrative Agent shall be prohibited
under Legal Requirements from providing such notice, so that Guarantor may seek an appropriate protective order at Guarantor’s
sole cost and expense, and (y) for the avoidance of doubt, in the absence of such a protective order, Administrative Agent and each
Lender may disclose such Information without liability under this Agreement, (iv) to the Rating Agencies provided the Persons to
whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information
confidential, (v) to the extent reasonably necessary in the determination of Administrative Agent and the Lenders in connection
with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or
any other Loan Document or the enforcement of rights hereunder or thereunder, (vi) subject to an agreement containing provisions
at least as restrictive as those of this subsection, to any investor (including, without limitation, any co-lenders, “B-piece buyer”,
assignee, participant, bondholders, noteholders or other Persons that have or may acquire a direct and/or indirect interest in the Loan
and/or any note on note repurchase or similar financing facility with respect to the Note) in connection with any secondary market transaction,
(vii) with the written consent of Guarantor or (viii) to the extent such Information becomes publicly available other than
as a result of a breach of this subsection. For purposes of this subsection, “Information” means all financial information
received from Borrower and/or Guarantor or any of its subsidiaries, representatives or agents relating to the Guarantor.
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19.19 Waiver
of Marshaling of Assets. To the fullest extent permitted by law, Borrower, for itself and its successors and assigns, waives all
rights to a marshaling of the assets of Borrower, Borrower’s members and others with interests in Borrower and of the Property
and the Collateral, and agrees not to assert any right under any laws pertaining to the marshaling of assets, the sale in inverse order
of alienation, homestead exemption, the administration of estates of decedents, or any other matters whatsoever to defeat, reduce or
affect the right of Administrative Agent under the Loan Documents to a sale of the Property or the Collateral for the collection of the
Debt without any prior or different resort for collection or of the right of Administrative Agent to the payment of the Debt out of the
net proceeds of the Property or the Collateral in preference to every other claimant whatsoever.
19.20 Waiver
of Counterclaim and other Actions. Borrower hereby expressly and unconditionally waives, in connection with any suit, action or proceeding
brought by Administrative Agent on this Agreement, the Note, the Pledge Agreements, the Mortgage or any Loan Document, any and every
right it may have to (i) interpose any counterclaim therein (other than a counterclaim which can only be asserted in the suit, action
or proceeding brought by Administrative Agent on this Agreement, the Note, the Pledge Agreements, the Mortgage or any Loan Document and
cannot be maintained in a separate action) and (ii) have any such suit, action or proceeding consolidated with any other or separate
suit, action or proceeding.
19.21 Conflict;
Construction of Documents; Reliance. In the event of any conflict between the provisions of this Agreement and any of the other Loan
Documents, the provisions of this Agreement shall control. The parties hereto acknowledge that they were represented by competent counsel
in connection with the negotiation, drafting and execution of the Loan Documents and that such Loan Documents shall not be subject to
the principle of construing their meaning against the party which drafted same. Borrower acknowledges that, with respect to the Loan,
Borrower shall rely solely on its own judgment and advisors in entering into the Loan without relying in any manner on any statements,
representations or recommendations of Administrative Agent or any parent, subsidiary or Affiliate of Administrative Agent. Administrative
Agent shall not be subject to any limitation whatsoever in the exercise of any rights or remedies available to it under any of the Loan
Documents or any other agreements or instruments which govern the Loan by virtue of the ownership by it or any parent, subsidiary or
Affiliate of Administrative Agent of any equity interest any of them may acquire in Borrower, and Borrower hereby irrevocably waives
the right to raise any defense or take any action on the basis of the foregoing with respect to Administrative Agent’s exercise
of any such rights or remedies. Borrower acknowledges that Administrative Agent engages in the business of real estate financings and
other real estate transactions and investments which may be viewed as adverse to or competitive with the business of Borrower or their
Affiliates.
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19.22 Brokers
and Financial Advisors. Each of Borrower and Administrative Agent hereby represents to the other that it has dealt with no financial
advisors, brokers, underwriters, placement agents, agents or finders in connection with the transactions contemplated by this Agreement.
Each of Borrower and Administrative Agent hereby agrees to indemnify, defend and hold Administrative Agent and Lenders harmless from
and against any and all claims, liabilities, costs and expenses of any kind (including reasonable attorneys’ fees and expenses)
in any way relating to or arising from a claim by any Person that such Person acted on behalf of the indemnifying party in connection
with the transactions contemplated herein. The provisions of this Section 19.22 shall survive the expiration and termination
of this Agreement and the payment of the Debt.
19.23 Prior
Agreements. This Agreement and the other Loan Documents contain the entire agreement of the parties hereto and thereto in respect
of the transactions contemplated hereby and thereby, and all prior agreements among or between such parties, whether oral or written,
are superseded by the terms of this Agreement and the other Loan Documents and unless specifically set forth in a writing contemporaneous
herewith the terms, conditions and provisions of any and all such prior agreements do not survive execution of this Agreement.
19.24 Counterparts.
This Agreement may be executed in multiple counterparts, each of which shall constitute an original, but all of which shall constitute
one document.
19.25 Limitation
of Liability. No claim may be made by Borrower or any other Person against Administrative Agent or any Lender or the affiliates,
directors, officers, employees, attorneys or Administrative Agent of any of them for any special, consequential, treble or punitive damages
in respect of any claim for breach of contract or any other theory of liability arising out of or related to the transactions contemplated
by this Agreement or by the other Loan Documents, or any act, omission or event occurring in connection therewith; and Borrower hereby
waives, releases and agrees not to sue upon any claim for any such damages, whether or not accrued and whether or not known or suspected
to exist in its favor.
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19.26 Retention
of Servicer. Administrative Agent reserves the right, at its option, to retain the Servicer to act on its behalf in connection with
the Loan. Borrower shall be responsible for set up fees and other regularly scheduled servicing fees, and any other costs and expenses
of the Servicer in connection with the Loan, including (without limitation) any fees and expenses of the Servicer in connection with
any requests of Borrower, any prepayment, amendment or modification of the Loan, any special servicing or work-out of the Loan or enforcement
of the Loan Documents. Notwithstanding the foregoing or anything to the contrary contained in this agreement or any other Loan Document,
so long as no Event of Default has occurred and is continuing, in no event shall the aggregate amount of any fees, costs and/or expenses
paid by Borrower to, or otherwise for the benefit of, the Servicer exceed $13,000 per month.
19.27 Acknowledgement
and Consent to Bail-In of Affected Financial Institutions.
Notwithstanding anything
to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto
acknowledges that any liability of any Affected Financial Institution arising under any Loan Document, to the extent such liability is
unsecured, may be subject to the write-down and conversion powers of the applicable Resolution Authority and agrees and consents to,
and acknowledges and agrees to be bound by:
(a) the
application of any Write-Down and Conversion Powers by the applicable Resolution Authority to any such liabilities arising hereunder
which may be payable to it by any party hereto that is an Affected Financial Institution; and
(b) the
effects of any Bail-In Action on any such liability, including, if applicable:
(i) a
reduction in full or in part or cancellation of any such liability;
(ii) a
conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution,
its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other
instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any
other Loan Document; or
(iii) the
variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of the applicable Resolution
Authority.
Borrower represents that neither Borrower nor
any other Borrower Party is an Affected Financial Institution.
19.28 Joint
and Several Liability. If Borrower consists of more than one (1) Person the obligations and liabilities of each Person shall
be joint and several.
19.29 Replacement
Documents. Upon receipt of an affidavit of an officer of Administrative Agent as to the loss, theft, destruction or mutilation of
any of the Note or any other Loan Document that is not of public record, and, in the case of any such mutilation, upon surrender and
cancellation of such Note, membership certificate or other Loan Document, Borrower will issue, in lieu thereof, an identical Note or
an identical replacement of such other Loan Document, dated the date of such lost, stolen, destroyed or mutilated Note or other Loan
Document in the same principal amount thereof and otherwise of like tenor.
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19.30 Co-Agents;
Lead Managers. None of the Lenders or other Persons identified on the facing page or signature pages of this Agreement
as a “syndication agent,” “documentation agent,” “co-agent,” “book manager,” or “lead
manager,” “arranger,” “lead arranger” or “co-arranger” shall have any right, power, obligation,
liability, responsibility or duty under this Agreement other than, in the case of such lenders, those applicable to all Lenders as such.
Without limiting the foregoing, none of the Lenders or other Persons so identified as a “syndication agent,” “documentation
agent,” “co-agent” or “lead manager” shall have or be deemed to have any fiduciary relationship with any
Lenders. Each Lender acknowledges that it has not relied, and will not rely, on any of Lenders or other Persons so identified in deciding
to enter into this Agreement or in taking or not taking action hereunder.
19.31 Deemed
Approval. Provided no Event of Default shall have occurred and then be continuing, approvals by Administrative Agent required pursuant
to Section 5.1.25(a) shall be deemed given by Administrative Agent (to the extent expressly set forth in the foregoing
definition and/or Sections as being subject to the approval provisions of this Section 19.31) if (a) the first correspondence
from Borrower to Administrative Agent requesting such approval (i) is enclosed in an envelope marked “PRIORITY”, (ii) contains
a legend, prominently displayed at the top of each page thereof, in bold, all caps and fourteen (14) point or larger font stating
that Administrative Agent’s failure to respond to such request, either by confirming approval, by denying approval, and/or by requesting
additional information or documentation which Administrative Agent reasonably deems necessary to evaluate Borrower’s request, within
ten (10) Business Days, may result in such request being deemed approved, and (iii) is accompanied by all information and documentation
(and in such detail) as Borrower reasonably believes is necessary to adequately and completely evaluate the request, (b) simultaneously
with such request, Borrower shall send an e-mail message with the subject line “PRIORITY-SUBJECT TO DEEMED APPROVAL” to prichards@nexpoint.com
(which email address may be changed or otherwise updated upon notice to Borrower, from time to time) attaching true, correct and complete
copies of all materials included in Borrower’s written request to Administrative Agent, (c) Administrative Agent shall fail
to respond to or deny such request in the manner contemplated in clause (a)(ii) above or via email within such ten (10) Business
Day period following its receipt of such request together with all information necessary to evaluate such request, (d) Borrower
shall deliver a second written request for approval (which shall be accompanied by all information and documentation included in the
first request and simultaneously therewith, Borrower shall send an additional e-mail message to prichards@nexpoint.com (which
email address may be changed or otherwise updated upon notice to Borrower, from time to time) with the subject line “PRIORITY-SUBJECT
TO DEEMED APPROVAL” and again attaching true, correct and complete copies of all materials included in Borrower’s written
request to Administrative Agent) which written request (i) is enclosed in an envelope marked “PRIORITY” and (ii) contains
a legend, prominently displayed at the top of each page thereof, in bold, all caps and fourteen (14) point or larger font, stating
that Administrative Agent’s failure to respond to such request, either by confirming approval or by denying approval, within five
(5) Business Days of its receipt of such second request shall be deemed approval of the matter, and (e) Administrative Agent
shall fail to respond to such request for approval in the manner contemplated in clause (d)(ii) above or via email within
such five (5) Business Day period.
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19.32 Right
of First Negotiation. Borrower hereby grants to Lender a right of first negotiation on any new or additional secured mortgage and/or
mezzanine debt financing to be obtained by Borrower or any of its direct or indirect subsidiaries with respect to total construction
of the entire project to its intended scope provided for in the entitlements, including without limitation, the Special Permit (a “New
Construction Loan”). Prior to Borrower or its direct or indirect subsidiaries obtaining a New Construction Loan, Borrower shall
deliver to Lender a written notice describing the material terms of such proposed New Construction Loan. Upon receipt of such notice,
Lender shall provide written notice to Borrower within ten (10) days of its receipt of Borrower’s notice as to whether Lender
or any of its designees elect to engage in negotiations regarding the proposed transaction. If Lender or any of its designees elect to
engage in negotiations, then Lender shall deliver a written notice to Borrower of such election (a “Notice to Proceed”)
and for the next ten (10) days Lender and Borrower and/or their designee(s)/affiliate(s), as applicable, shall engage in non-binding
discussions and negotiate in good faith to attempt to agree upon the material terms acceptable to both parties, in their sole and absolute
discretion. If Lender fails to timely provide Borrower with a Notice to Proceed, then Lender will be deemed to have elected to reject
the proposed transaction and waived its rights hereunder with respect to the right of first negotiation on such proposed New Construction
Loan and Borrower or its affiliates may proceed with such proposed New Construction Loan without Lender or its designees. If Lender and
Borrower, or their respective designees/affiliates, as applicable, agree upon material terms and execute a non-binding term sheet or
similar agreement, Borrower and Lender or their respective designees/affiliates, as applicable, shall proceed in accordance with such
term sheet or similar agreement. If Lender provides a Notice to Proceed and the parties are unable to agree to terms for the proposed
transaction (or, after execution of a term sheet or similar agreement, the parties are thereafter unable to agree to terms for the proposed
transaction), then Borrower and its affiliates shall be permitted to proceed. The rights and obligations of Lender and Borrower as provided
in this Section shall terminate upon the earliest to occur of: (i) Lender’s waiver of its rights in accordance with this
Section, (ii) delivery of a Notice to Proceed and either (a) the consummation of the New Construction Loan or (b) the
failure of the parties to agree on the terms of a New Construction Loan following the delivery of such Notice to Proceed, and (iii) the
original stated Maturity Date.
19.33 Tax
Indemnity. Borrower agrees to indemnify and hold harmless the Lenders or their applicable designee (each an “Indemnified
Tax Party”) for up to Ten Million Dollars ($10,000,000) of federal income tax liabilities for which an Indemnified Tax Party
becomes actually liable pursuant to Section 704(c) of the Code as a result of any sale by foreclosure of the Property by the
Lenders pursuant to the terms of this Agreement and/or the Mortgage. In making any claim for indemnification, the Indemnified Tax Party
shall provide Borrower with written evidence of such tax liability, to the reasonable satisfaction of Borrower. In the event the Indemnified
Tax Party receives a refund of any amount of indemnification provided by Borrower pursuant to this paragraph, the Indemnified Tax Party
shall promptly pay such refund (net of any out-of-pocket costs incurred in connection with obtaining or paying over such refund) over
to Borrower.
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XX. MORTGAGE
LOAN.
20.1 Intentionally
Omitted.
20.2 Compliance
With Mortgage Loan Documents. Borrower shall (or shall cause Mortgage Borrower to): (a) pay all principal, interest and other
sums required to be paid by Mortgage Borrower under and pursuant to the provisions of the Mortgage Loan Documents; (b) diligently
perform and observe all of the terms, covenants and conditions of the Mortgage Loan Documents on the part of Mortgage Borrower to be
performed and observed, unless such performance or observance shall be waived in writing by Mortgage Administrative Agent and/or Mortgage
Lenders; (c) promptly notify Administrative Agent of the receipt by Mortgage Borrower, Borrower, or Guarantor of any written notice
from Mortgage Administrative Agent and/or Mortgage Lenders of any default by Mortgage Borrower or Guarantor in the performance or observance
of any of the terms, covenants or conditions of the Mortgage Loan Documents on the part of Mortgage Borrower or Guarantor to be performed
or observed and deliver to Administrative Agent a true copy of each such notice; (d) deliver a true, correct and complete copy of
all notices, demands, requests or material correspondence (including electronically transmitted items) given or received by Mortgage
Borrower or Guarantor to or from Mortgage Administrative Agent, Mortgage Lenders or their respective agents; (e) deliver to Administrative
Agent all of the financial statements, reports, certificates and related items delivered or required to be delivered by Mortgage Borrower
to Mortgage Administrative Agent under the Mortgage Loan Documents as and when due under the Mortgage Loan Documents, if such items are
not separately delivered under the Loan Documents. Without limiting the foregoing, Borrower shall cause Mortgage Borrower to fund all
reserves required to be funded pursuant to the Mortgage Loan Documents. In the event of a refinancing of the Mortgage Loan permitted
by the terms of this Agreement, Borrower will cause all reserves on deposit with Mortgage Administrative Agent to be utilized by Mortgage
Borrower to reduce the amount due and payable to Mortgage Administrative Agent and Mortgage Lenders or alternatively to be remitted to
Administrative Agent as a mandatory prepayment of the Loan.
20.3 Intentionally
Omitted.
20.4 Mortgage
Loan Defaults.
20.4.1 Without
limiting the generality of the other provisions of this Agreement, and without waiving or releasing Borrower from any of its obligations
hereunder, upon the occurrence and during the continuance of a Mortgage Loan Event of Default, Borrower hereby expressly agrees that
Administrative Agent and Lenders shall have the immediate right, without prior notice to Borrower, but shall be under no obligation:
(i) to pay all or any part of the Mortgage Loan, and any other sums that are then due and payable thereunder, and to perform any
act or take any action on behalf of Borrower and/or Mortgage Borrower as may be appropriate, to cause all of the terms, covenants and
conditions of the Mortgage Loan Documents on the part of Mortgage Borrower to be performed or observed thereunder to be promptly performed
or observed; and (ii) to pay any other amounts and take any other action as Administrative Agent, in its reasonable discretion,
shall deem advisable to protect or preserve the rights and interests of Administrative Agent and Lenders in the Loan and/or the Collateral.
All sums so paid and the costs and expenses incurred by Administrative Agent and Lenders in exercising rights under this Section 20.4
(including, without limitation, reasonable attorneys’ fees) (i) shall constitute additional advances of the Loan to Borrower,
(ii) shall increase the then unpaid principal, (iii) shall bear interest at the Default Rate for the period from the date that
is ten (10) Business Days after written receipt of written demand to the date of payment to Administrative Agent, (iv) shall
constitute a portion of the Debt, and (v) shall be secured by the Pledge Agreements and the Mortgage.
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20.4.2 Borrower
hereby indemnifies Administrative Agent and Lenders, without duplication, from and against all Losses of any kind or nature whatsoever
which are actually incurred by or asserted against Administrative Agent and/or Lenders as a result of any action taken by Administrative
Agent and/or Lenders under Section 20.4.1, provided, however, that Borrower shall not have any obligation hereunder
for any Excluded Liabilities. Administrative Agent and Lenders shall have no obligation to Borrower, Mortgage Borrower, Guarantor or
any other party to make any such payment or performance. Borrower shall not impede, interfere with, hinder or delay, and shall not permit
Mortgage Borrower to impede, interfere with, hinder or delay, any effort or action on the part of Administrative Agent or Lenders to
cure any Event of Default under the Mortgage Loan, or to otherwise protect or preserve Administrative Agent’s or Lenders’
interests in the Loan and the Collateral during the continuance of a Mortgage Loan Event of Default.
20.4.3 Borrower
hereby grants Administrative Agent and Lenders and any person designated by Administrative Agent or Lenders the right to enter upon the
Property, subject to the rights of permitted occupants at the Property, at any time following the occurrence and during the continuance
of an Event of Default hereunder or under the Mortgage Loan Documents, for the purpose of taking any such action or to appear in, defend
or bring any action or proceeding to protect Borrower’s, Mortgage Borrower’s, Administrative Agent’s and/or Lenders’
interest. Administrative Agent and Lenders may take such action as Administrative Agent deems reasonably necessary to carry out the intents
and purposes of this subsection (including communicating with Mortgage Administrative Agent and Mortgage Lenders with respect to the
Mortgage Loan Event of Default), without prior notice to, or consent from, Borrower or Mortgage Borrower. Administrative Agent and Lenders
shall have no obligation to complete any cure or attempted cure undertaken or commenced by Administrative Agent or Lenders.
20.4.4 If
Administrative Agent or Lenders shall receive a copy of any notice of a Mortgage Loan Event of Default sent by Mortgage Administrative
Agent or Mortgage Lenders, such notice shall constitute full protection to Administrative Agent and Lenders for any action taken or omitted
to be taken by Administrative Agent and Lenders, in good faith, in reliance thereon. As a material inducement to Lenders’ making
the Loan, Borrower hereby absolutely and unconditionally releases and waives all claims against Administrative Agent and Lenders arising
out of Administrative Agent’s and/or Lenders’ exercise of its rights and remedies provided in this Article XX,
except for Excluded Liabilities. In the event that Administrative Agent and/or Lenders’ makes any payment in respect of the Mortgage
Loan, Administrative Agent and/or Lenders’ shall be subrogated to all of the rights of Mortgage Administrative Agent and Mortgage
Lenders under the Mortgage Loan Documents, against the Property, in addition to all other rights it may have under the Loan Documents.
20.5 No
Amendments to Mortgage Loan Documents. Without obtaining the prior written consent of Administrative Agent, such consent not to be
unreasonably withheld, conditioned or delayed, except as permitted under the Intercreditor Agreement, Borrower shall not cause or permit
Mortgage Borrower to (i) enter into any amendment or modification of any of the Mortgage Loan Documents or (ii) grant to Mortgage
Administrative Agent or Mortgage Lenders any consent or waiver. Borrower shall cause Mortgage Borrower to provide Administrative Agent
with a copy of any amendment or modification to the Mortgage Loan Documents within five (5) days after the execution thereof or
such earlier period required hereunder or in the Mortgage Loan Documents.
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20.6 Acquisition
of Mortgage Loan. None of Borrower, Mortgage Borrower or Guarantor or any Broad Affiliate of any of the foregoing shall acquire or
agree to acquire the Mortgage Loan or any portion thereof or any interest therein, or any direct or indirect ownership interest in the
holder of the Mortgage Loan, via purchase, transfer, exchange or otherwise, in each case, unless otherwise approved by Administrative
Agent. If, solely by operation of applicable law, Borrower or Mortgage Borrower or any Broad Affiliate of either of the foregoing shall
have failed to comply with the foregoing, then Borrower: (i) shall promptly upon obtaining actual knowledge of same, notify Administrative
Agent of such failure; (ii) shall cause any and all such prohibited parties acquiring any interest in the Mortgage Loan Documents:
(A) not to enforce the Mortgage Loan Documents; and (B) upon the request of Administrative Agent, to the extent any of such
prohibited parties has or have the power or authority to do so, to promptly: (1) discontinue and terminate any enforcement proceeding(s) under
the Mortgage Loan Documents, (2) cancel the promissory notes evidencing the Mortgage Loan and (3) reconvey and release the
liens securing the Mortgage Loan and any other collateral under the Mortgage Loan Documents.
20.7 Mortgage
Loan Intercreditor Agreement. In the event that (i) the Mortgage Loan is in default (or the receipt by Administrative Agent
or any Lender of a payment which causes the Mortgage Loan to be in default or which is in breach of the Intercreditor Agreement), (ii) Administrative
Agent or any Lender is required pursuant to the terms of the Intercreditor Agreement to pay over to Mortgage Administrative Agent any
payment or distribution of assets, whether in cash, property or securities, which was previously applied to the Debt, including any proceeds
of the Property or any other collateral for the Loan previously received by Administrative Agent or any Lender on account of the Loan,
(iii) Administrative Agent or any Lender has actually paid over such amounts to Mortgage Administrative Agent, and (iv) Administrative
Agent or any Lender has not received such amounts in return, then Borrower agrees to indemnify Lender for any amounts so paid, and any
amount so paid shall continue to be owing pursuant to the Loan Documents as part of the Debt notwithstanding the prior receipt of such
payment by Administrative Agent or any Lender.
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20.8 Independent
Approval Rights. If any action, proposed action or other decision is consented to or approved by Mortgage Administrative Agent or
Mortgage Lender, such consent or approval shall not be binding or controlling on Administrative Agent or any Lender. Borrower hereby
acknowledges and agrees that (i) the risks of Mortgage Lender in making the Mortgage Loan are different from the risks of Lender
in making the Loan, (ii) in determining whether to grant, deny, withhold or condition any requested consent or approval, Mortgage
Administrative Agent, Mortgage Lender and Administrative Agent and Lender may reasonably reach different conclusions, and (iii) Administrative
Agent and Lender has an absolute independent right to grant, deny, withhold or condition any requested consent or approval based on its
own point of view, but subject to the standards of consent set forth herein. Furthermore, the denial by Administrative Agent or any Lender
of a requested consent or approval shall not create any liability or other obligation of Administrative Agent or Lender if the denial
of such consent or approval results directly or indirectly in a default under the Mortgage Loan Documents, and Borrower hereby waives
any claim of liability against Administrative Agent or any Lender arising from any such denial unless Administrative Agent Lender or
has not complied with any applicable standard for consent.
20.9 Discussions
with Mortgage Administrative Agent and Other Third Parties. In connection with the exercise of its rights set forth in the Loan Documents,
Administrative Agent shall have the right at any time to discuss the Collateral, the Property, the Mortgage Loan, the Loan, and any other
matter directly with Mortgage Administrative Agent, any property manager (including Manager), any Tenant and/or any Work Provider and
their respective consultants, agents or representatives, as applicable, without notice to or permission from Borrower, nor shall Administrative
Agent have any obligation to disclose such discussions or the contents thereof to Borrower or any other Person.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF,
the parties hereto have caused this Agreement to be duly executed by their duly authorized representatives, all as of the day and year
first above written.
BORROWER:
IQHQ-ALEWIFE HOLDINGS, LLC,
a Delaware limited liability company
By:
/s/
Bryan Smith
Name: Bryan Smith
Title: Authorized Signatory
By:
/s/ Ryan Shannon
Name: Ryan Shannon
Title: Authorized Signatory
[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]
ADMINISTRATIVE AGENT:
NREF OP IV REIT SUB, LLC,
a Delaware
limited liability company
By:
/s/
Paul Richards
Name: Paul Richards
Title: Chief Financial Officer, Treasurer and Assistant Secretary
[Signatures continue on the following page]
LENDER:
NREF OP IV SUBHOLDCO, LLC,
a Delaware limited liability company
By:
/s/
Paul Richards
Name:
Paul Richards
Title:
CFO, Treasurer and Assistant Secretary
RIDER FOR PLEDGE BY MORTGAGE BORROWER
MORTGAGE BORROWER HEREBY SIGNS THIS RIDER TO EVIDENCE
ITS AGREEMENTS AND GRANTS OF SECURITY INTERESTS SET FORTH IN THIS AGREEMENT:
IQHQ-ALEWIFE, LLC,
a Delaware limited liability company
By:
/s/
Bryan Smith
Name: Bryan Smith
Title: Authorized Signatory
By:
/s/ Ryan Shannon
Name: Ryan Shannon
Title: Authorized Signatory
EXHIBITS:
Exhibit A
Legal Description of the Property
Exhibit B
Intentionally Omitted
Exhibit C
Form of SNDA
Exhibit D
Initial Budget
Exhibit E
Intentionally Omitted
Exhibit F-1
Tax Compliance Certificate (Foreign Lenders That Are Not Partnerships)
Exhibit F-2
Tax Compliance Certificate (Foreign Participants That Are Not Partnerships)
Exhibit F-3
Tax Compliance Certificate (Foreign Participants That Are Partnerships)
Exhibit F-4
Tax Compliance Certificate (Foreign Lenders That Are Partnerships)
Exhibit G-1
Form of Request for Advance
Exhibit G-2
Form of Anticipated Cost Report
Exhibit G-3
Form of Project Cost Report
Exhibit H-1
Form of Lien Waiver (Trade Contractor)
Exhibit H-2
Form of Lien Waiver (General Contractor)
Exhibit H-3
Form of Final Lien Waiver
SCHEDULES:
Schedule I
Authorized Representatives
Schedule II
Commitment Amounts
Schedule III
List of Construction Agreements and Construction Permits
Schedule IV
List of Sub-Contractors
Schedule V
List of Zoning Documents
Schedule VI
List of Property Operating Agreements
Schedule VII
List of Design Professionals
Schedule VIII
REAs
Schedule IX
Prohibited Transferees
Schedule X
Notional Amounts
Schedule XI
Minimum Leasing Criteria
Schedule XII
Organizational Chart
Schedule XIII
List of Service Contracts
Schedule XIV
Unpaid Amounts
Schedule XV
Special Permit
Schedule XVI
Enabling Work
Schedule XVII
Existing License Agreements
Schedule XIX
Mortgage Loan Conditions
Schedule XX
Required Improvements & Warm Shell Description
FIRST AMENDMENT TO AMENDED
AND RESTATED
MEZZANINE LOAN AND SECURITY AGREEMENT
This FIRST AMENDMENT
TO AMENDED AND RESTATED MEZZANINE LOAN AND SECURITY AGREEMENT (“Amendment”) is executed as of March 31,
2026 by IQHQ-ALEWIFE HOLDINGS, LLC, a Delaware limited liability company (“Borrower”), and NREF OP IV REIT SUB,
LLC, a Delaware limited liability company (together with its successors and assigns, “Administrative Agent”),
and the Lenders (as defined in the Loan Agreement (as defined below)).
RECITALS
A. Borrower,
Administrative Agent and the Lenders entered into that certain Amended and Restated Mezzanine Loan and Security Agreement dated as of
September 30, 2025 (as so amended, and as the same may be amended, supplemented or otherwise modified from time to time, the “Loan
Agreement”), whereby Lenders made a loan (the “Loan”) to Borrower in the maximum amount of ONE
HUNDRED THIRTY-THREE MILLION and 00/100 Dollars ($133,000,000.00) for such purposes as set forth in the Loan Agreement. Capitalized terms
used but not otherwise defined herein shall have the respective meanings given thereto in the Loan Agreement.
B. In
connection with the Loan, the Guarantor executed and delivered the Guaranties (as defined in the Loan Agreement).
C. The
Borrower has requested that the Lenders increase the Loan by the maximum principal amount of $23,000,000 (the “B Loan”).
The Lenders are willing to provide the B Loan pursuant to, and in accordance with, the terms of this Amendment. Concurrently herewith,
Borrower is executing and delivering to Administrative Agent on behalf of the Lenders that certain Mezzanine Promissory Note B in the
original principal amount of Twenty-Three Million and 00/100 Dollars ($23,000,000.00) (“B Note”).
NOW, THEREFORE,
for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Borrower, Administrative Agent and
the Lenders agree as follows:
1. New Defined
Terms. The following new definitions are hereby added to Section 1.1 of the Loan Agreement in appropriate alphabetical
order, to read in their entirety as follows:
“B Loan” has the meaning set forth in
the recitals to the First Amendment.
“B Note” has the meaning set forth in
the recitals to the First Amendment.
“B Note Exit Fee”
means an amount equal to 1.0% of the principal amount of the B Loan, which is due and payable upon the repayment or prepayment of any
portion of the B Loan or the B Note Maturity Date.
FIRST AMENDMENT TO MEZZANINE LOAN AGREEMENT
1
“B Note Maturity Date” means April 17,
2026.
“B Note
Origination Fee” means an amount equal to 1.0% of the B Loan due and payable on the First Amendment Closing Date.
“B Note SOFR Rate” means a
fluctuating rate per annum equal to the greater of (i) the Term SOFR Rate Index plus the B Note Spread; and (ii) the
Minimum Rate.
“B Note Spread” means for each
Interest Period through (and including) the last Interest Period of the B Note Maturity Date, twelve and one-half percent
(12.5%).
“First Amendment” means that
certain First Amendment to Amended and Restated Mezzanine Loan and Security Agreement by and among Borrower, Administrative Agent
and Lenders dated as of March 31, 2026.
“First Amendment Closing Date” means
the date of funding of the B Loan by the Lenders.
2. Revised Defined
Terms. The following definitions in the Loan Agreement are hereby amended as follows:
“Applicable
Rate” means (1) for the B Loan, the greater of the B Note SOFR Rate and fourteen percent (14%) per annum; and (2) for
the balance of the Loan, the greater of (A) fourteen percent (14%) per annum, and (B)(i) the SOFR Rate for so long as the Loan
is a SOFR Rate Loan, (ii) the Alternate Rate for so long as the Loan is an Alternate Rate Loan or (iii) the Prime Rate for so
long as the Loan is a Prime Rate Loan.
“Debt” is hereby amended to
add “B Note,” after the words “the Note” in clauses (a) and (d) thereof.
“Default
Rate” means, with respect to the Loan and the B Loan, a rate per annum equal to the lesser of (a) the Applicable Rate for
the Loan or the B Loan, as applicable, plus five percent (5%) per annum and (b) the Maximum Legal Rate, all of which shall be payable
currently.
“Loan Amount” is hereby amended to add
“B Note,” after the words “the Note”.
“Loan Documents” is hereby amended to
add “B Note,” after the words “the Note”.
“Maximum Legal Rate” is hereby amended
to add “B Note,” after the words “the Note”.
“Permitted
Indebtedness” is hereby amended to add “B Note” after the words “the Note” in clause (d) thereof.
3. Additional
Terms of the B Loan. Notwithstanding anything contained in the Loan Agreement and the Loan Documents to the contrary, the parties
acknowledge and agree that Lenders agree to lend to Borrower, and Borrower agrees to borrow from Lenders the B Loan subject to the following
terms and conditions:
a. The
B Loan shall be advanced in a single advance.
FIRST AMENDMENT TO MEZZANINE LOAN AGREEMENT
2
b. The B Loan shall bear interest at the B Note SOFR Rate.
c. The
term of the B Loan shall terminate and expire on the B Note Maturity Date. All amounts payable under this Amendment and the Loan Documents
with respect to the B Loan, including, without limitation, interest, costs and charges (including, without limitation, the B Note Exit
Fee) as more particularly set forth in this Amendment and the B Note, shall be due and payable in full on the B Note Maturity Date, and
Borrower shall repay the same in full.
d. The
B Loan shall be evidenced by the B Note and secured by the Pledge Agreements (as amended herein) and the other Loan Documents.
e. Borrower
may use the proceeds of the B Loan at its discretion, including for general corporate purposes. Borrower, Administrative Agent and Lenders
acknowledge and agree that once the principal amount of the B Loan is repaid, it may not be reborrowed.
4. Events
of Default. Clause (xxiii) of Section 17.1(a) of the Loan Agreement is hereby amended to read in its entirety
as follows:
“(xxiii) if the B Loan is not repaid in full
on or before the B Note Maturity Date.”
5. Amendment to Pledge Agreements.
a.
As of the date hereof, the terms in the Pledge Agreement (Mortgage Borrower) for: (i) “Note” means both (x) B
Note (as defined in the Note Splitter Agreement) and (y) B Note (as defined in the First Amendment); and (ii) “Loan
Documents” is hereby amended to add the words “B Note,” after the words “the Note”.
b. As
of the date hereof, the terms in the Pledge Agreement (Sole Member) for: (i) “Note” means both (x) B Note (as
defined in the Note Splitter Agreement) and (y) B Note (as defined in the First Amendment); and (ii) “Loan
Documents” is hereby amended to add the words “B Note,” after the words “the Note”.
6. Conditions
to Amendment. This Amendment and the agreements of Lender described herein will not be effective unless and until all of the following
have occurred or have been satisfied:
a. Administrative
Agent and the Lenders shall have received a fully executed copy of this Amendment.
b. Borrower
shall have paid Lenders the B Note Origination Fee of $230,000.00.
c. The
consent to this Amendment by the Guarantor by execution of the rider to this Amendment.
d. The
payment by Borrower of Administrative Agent’s and the Lenders’ fees and expenses arising in connection with the preparation
and delivery of this Amendment and any documents, agreements or instruments referred to herein, including, without limitation, the reasonable
fees and expenses of the consultants, attorneys or other professionals retained by Lenders or Administrative Agent in connection with
the negotiation and preparation of this Amendment.
FIRST AMENDMENT TO MEZZANINE LOAN AGREEMENT
3
e. All
representations and warranties of the Borrower contained in the Loan Agreement and the Loan Documents shall be true and correct in all
material respects at and as of the date hereof as though then made, except for such representations and warranties as by their terms expressly
speak as of an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of
such earlier date.
f. No
Default or Event of Default shall have occurred and be continuing under the Loan Documents.
g. Administrative
Agent and the Lenders shall have received such other documents, instruments and agreements as they shall reasonably request in connection
with the B Loan.
h. Approval of the B Loan and this Amendment by the Mortgage Lenders.
7. Conditions
to Future Loan. In consideration of the B Loan, Lenders will consider making a bridge loan to Borrower which, in Lender’s discretion,
will be made subject to and in accordance with the terms and conditions set forth in Exhibit A attached hereto and made a
part hereof.
8. Representations
and Warranties. Borrower hereby represents and warrants to the Administrative Agent and Lenders as follows:
a. All
representations and warranties set forth in the Loan Agreement and the other Loan Documents are true, correct and complete in all material
respects as of the date of this Amendment.
b. To
Borrower’s knowledge, no event has occurred and is continuing, and no condition exists, which constitutes or which after notice
or lapse of time, or both, would constitute a Default or Event of Default under the Loan Documents.
c. The
execution and delivery by Borrower of this Amendment and all other documents, instruments, and agreements executed in connection with
this Amendment and the performance by it of the transactions herein contemplated (i) are and will be within its powers, (ii) have
been authorized by all necessary organizational action, and (iii) are not and will not be in contravention of any order of any court
or other agency of government, of law or any other indenture, agreement or undertaking to which Borrower is a party or by which the property
of Borrower is bound, or be in conflict with, result in a breach of, or constitute (with due notice and/or lapse of time) a default under
any such indenture, agreement or undertaking or result in the imposition of any lien, charge or encumbrance of any nature on any of the
properties of Borrower.
FIRST AMENDMENT TO MEZZANINE LOAN AGREEMENT
4
d. This
Amendment and all other documents, instruments and agreements executed in connection with this Amendment and any assignment, instrument,
document, or agreement executed and delivered in connection herewith, are valid, binding and enforceable in accordance with its respective
terms.
9. Reaffirmation.
Except as expressly modified hereby, all of the terms, covenants and conditions of the Loan Documents remain unmodified and in full force
and effect and are hereby ratified and confirmed by Borrower. Any waiver of the requirements of the Loan with respect to the specific
matters set forth herein does not constitute a waiver of such requirements for future matters.
10. Conforming
Agreements. It is the intention of the parties to this Amendment that this Amendment shall be deemed to form a part of the Loan Documents,
and it shall constitute a Loan Document as referred to herein and therein. Any breach of the representations, warranties, covenants and
agreements set forth in this Amendment shall constitute an Event of Default to the extent provided in the Loan Agreement. Except as otherwise
specifically provided in this Amendment, the rights, powers, authorities, remedies, interests and benefits conferred upon Lender by and
as provided in this Amendment are intended to supplement, and be in addition to (and shall not in any way replace, supersede, amend, limit
or restrict), the rights, powers, authorities, remedies, interests, and benefits conferred by the Loan Documents.
11. Borrower and Guarantor Release.
a. In
consideration of the accommodations being made available by Lenders to or for the benefit of Borrower and Guarantor under this
Amendment, Borrower and Guarantors, for themselves and their respective agents, employees, members, successors and assigns, do
hereby unconditionally remise, release and discharge Lenders and their employees, agents, representatives, officers, and their
respective successors and assigns (the “Released Parties”) of and from any and all claims, counterclaims,
demands, actions and causes of action of any nature whatsoever, whether at law or in equity, arising out of or relating to any of
the Loan Documents, any acts or omissions of any Released Party in connection therewith, the transactions described in this
Amendment, which any of them, now has or hereafter can or may have against any of the Released Parties, from the beginning of the
world to the date hereof.
b. Borrower
and Guarantor hereby waive the provisions of any applicable laws restricting the release of claims which the releasing parties do not
know or suspect to exist at the time of release, which, if known, would have materially affected the decision to agree to these releases.
In this connection, Borrower and Guarantor hereby agree, represent and warrant to the Lenders that they realize and acknowledge that
factual matters now unknown may have given or may hereafter give rise to causes of action, claims, demands, debts, controversies, damages,
costs, losses and expenses which are presently unknown, unanticipated and unsuspected, and Borrower and Guarantor further agree, represent
and warrant that the releases provided herein have been negotiated and agreed upon in light of that realization and that Borrower and
Guarantor nevertheless hereby intend to release, discharge and acquit the parties set forth hereinabove from any such unknown causes
of action, claims, demands, debts, controversies, damages, costs, losses and expenses which are in any manner set forth in or related
to the Loan or the B Loan and all dealings in connection therewith. In making this waiver, Borrower and Guarantor understand and acknowledge
that they may hereafter discover facts in addition to or different from those that are currently known or believed to be true with respect
to the subject matter of this release, but agree that they have taken that possibility into account in accepting the B Loan and that,
notwithstanding the discovery or existence of any such additional or different facts, as to which Borrower and Guarantor expressly assume
the risk, they fully, finally and forever settle and release any and all claims released hereunder, known or unknown, suspected or unsuspected,
which now exist, or heretofore existed, and without regard to the subsequent discovery or existence of such additional or different facts.
FIRST AMENDMENT TO MEZZANINE LOAN AGREEMENT
5
c. Borrower
and Guarantor hereby acknowledge that they have not relied upon any representation of any kind made by the Lenders or any affiliate of
the Lenders in making the foregoing release.
d. Borrower
and Guarantor represent and warrant to the Lenders that they have not heretofore assigned or transferred, or purported to assign or to
transfer, to any person or entity any matter released by such party hereunder or any portion thereof or interest therein, and each Borrower
and Guarantor agrees to indemnify, protect, defend and hold each of the Lenders harmless from and against any and all claims based on
or arising out of any such assignment or transfer or purported assignment or transfer by such party.
12. Ratification
and Reaffirmation. Except as modified by this Amendment, each of the Loan Documents and the respective obligations, indebtedness and
liabilities of the Borrower and Guarantors thereunder are hereby ratified, reaffirmed and confirmed by the Borrower and Guarantors. Each
Guarantor hereby acknowledges and consents to the foregoing amendments to the Loan Agreement and all of the other Loan Documents. Each
Guarantor hereby ratifies, confirms, reaffirms and covenants that the Guaranty is validly existing and binding against Guarantors. Each
Guarantor hereby reaffirms and restates, as of the date hereof, all covenants, representations and warranties set forth in the Guaranty.
13. Obligations
Remain in Full Force and Effect. The obligations of Borrower under the Loan Documents shall, except as expressly modified herein,
remain in full force and effect, and shall not be released, impaired, diminished or in any other way modified or amended as a result of
the execution and delivery of this Amendment or by the agreements and undertakings of the parties contained herein. Borrower hereby ratifies
and confirms each of the Loan Documents to which it is a party and the rights granted thereunder in favor of Lender.
14. No
Waiver. Except as otherwise specifically provided in this Amendment, Lenders’ execution of or performance under this
Amendment does not (and it shall not be construed so as to) waive, relinquish, restrict or limit in any way any of the rights,
remedies, claims or causes of action that Lender has or may have under or with respect to the Loan Documents, or applicable law (all
of which are expressly reserved) regardless of whether any of the foregoing relate to or arise out of acts, omissions, events or
transactions occurring before or after the date hereof. Except as otherwise specifically provided in this Amendment, Lender hereby
expressly reserves all rights to take any and all actions, and exercise any and all remedies, authorized under any Loan Document or
at law or in equity as a result of or with respect to the occurrence and continuance of any defaults, violations or events of
default that have or may have heretofore occurred thereunder and any defaults, violations or events of default that may hereafter
occur or exist thereunder. Nothing contained herein, and no action taken by Lender pursuant hereto or as provided herein, shall be
deemed to be a waiver of any of such defaults, violations or events of default.
FIRST AMENDMENT TO MEZZANINE LOAN AGREEMENT
6
15. Governing
Law. This Amendment shall be governed in accordance with the terms and provisions of Section 19.3 of the Loan Agreement.
16. Counterparts.
This Amendment may be executed and delivered (including by DocuSign or similar electronic transmission) in any number of counterparts,
each of which shall be an original, but all of which shall, together, constitute one and the same instrument.
17. Entire
Agreement. This Amendment together with the Loan Agreement and the other Loan Documents contains all of the agreements of the parties
hereto with respect to the matters contained herein and therein and all prior or contemporaneous agreements or understandings, oral or
written, pertaining to any such matters are merged herein and shall not be effective for any purpose.
18. Successors
and Assigns. This Amendment shall inure to the benefit of and shall be binding on the parties hereto and their respective successors
and permitted assigns.
19. Accommodations.
These amendments are one-time accommodations to Borrower and shall not be construed to grant any further accommodations to Borrower or
any other amendments or modifications or constitute a course of conduct in granting future accommodations, consents or approvals.
20.
Exculpation. Article XVIII of the Loan Agreement is hereby incorporated herein by reference.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
FIRST AMENDMENT TO MEZZANINE LOAN AGREEMENT
7
IN WITNESS WHEREOF, this Amendment has
been executed as of the day and year first above written.
ADMINISTRATIVE
AGENT:
NREF OP IV REIT SUB, LLC,
a Delaware limited liability company
By:
/s/
Name:
Title:
LENDER:
NREF OP IV REIT SUB, LLC,
a Delaware limited liability company
By:
/s/
Name:
Title:
BORROWER:
IQHQ-ALEWIFE HOLDINGS, LLC,
a Delaware limited liability company
By:
/s/ Christopher W. Brewer
Name:
Christopher W. Brewer
Title:
Authorized Signatory
CONSENT AND REAFFIRMATION
The undersigned hereby
(a) consents to this Amendment and to the transactions contemplated thereby, even if no such consent is in fact required;
(b) reaffirms its representations and warranties (subject to the Representation Remaking Qualifications) covenants,
liabilities, obligations and agreements under each of the Loan Documents to which it is a party, with the same force and effect as
if each were separately stated herein and made as of the date hereof, as may be modified, amended or affected by this Amendment and
(c) joins in the releases in Section 11 hereof as if separately signed by Guarantor.
GUARANTOR:
IQHQ,
LP,
a
Delaware limited partnership
By:
IQHQ
GP, LLC,
a
Delaware limited liability company,
its general partner
By:
/s/
Christopher W. Brewer
Name:
Christopher
W. Brewer
Title:
Authorized
Signatory
9
Exhibit A*
Bridge Loan Terms
*Omitted pursuant to Item 601(a)(5) of Regulation
S-K. The Company agrees to furnish supplementally a copy of any omitted schedule or exhibit to the SEC upon request.
10
SECOND AMENDMENT TO AMENDED AND RESTATED
MEZZANINE LOAN
AND SECURITY AGREEMENT
This SECOND AMENDMENT
TO AMENDED AND RESTATED MEZZANINE LOAN AND SECURITY AGREEMENT (“Amendment”) is executed as of April 16,
2026 by IQHQ-ALEWIFE HOLDINGS, LLC, a Delaware limited liability company (“Borrower”), and NREF OP IV REIT SUB,
LLC, a Delaware limited liability company (together with its successors and assigns, “Administrative Agent”),
and the Lenders (as defined in the Loan Agreement (as defined below)).
RECITALS
A. Borrower, Administrative
Agent and the Lenders entered into that certain Amended and Restated Mezzanine Loan and Security Agreement dated as of September 30,
2025 and that certain First Amendment to Amended and Restated Mezzanine Loan and Security Agreement dated as of March 31, 2026 (as
so amended, and as the same may be amended, supplemented or otherwise modified from time to time, the “Loan Agreement”),
whereby Lenders made a loan (the “Loan”) to Borrower in the maximum amount of ONE HUNDRED THIRTY-THREE MILLION
and 00/100 Dollars ($133,000,000.00), which Loan was increased by TWENTY THREE MILLION and 00/100 ($23,000,000) (the “B Loan”)
for the purposes as set forth in the Loan Agreement. Capitalized terms used but not otherwise defined herein shall have the respective
meanings given thereto in the Loan Agreement.
B. In
connection with the Loan, the Guarantor executed and delivered the Guaranties (as defined in the Loan Agreement).
C. The
Borrower has requested that the Lenders extend the B Note Maturity Date. The Lenders are willing to extend the B Note Maturity Date pursuant
to, and in accordance with, the terms of this Amendment.
NOW, THEREFORE,
for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Borrower, Administrative Agent and
the Lenders agree as follows:
1. Revised Defined
Terms. The following definitions in the Loan Agreement are hereby amended as follows:
“B Note Maturity Date” means April 24,
2026.
2. Maturity
of the B Loan. The term of the B Loan shall terminate and expire on the B Note Maturity Date. All amounts payable under this Amendment
and the Loan Documents with respect to the B Loan, including, without limitation, interest, costs and charges (including, without limitation,
the B Note Exit Fee), shall be due and payable in full on the B Note Maturity Date, and Borrower shall repay the same in full.
3. Conditions
to Amendment. This Amendment and the agreements of Lender described herein will not be effective unless and until all of the following
have occurred or have been satisfied:
SECOND AMENDMENT TO MEZZANINE LOAN AGREEMENT
1
a. Administrative
Agent and the Lenders shall have received a fully executed copy of this Amendment.
b. The
consent to this Amendment by the Guarantor by execution of the rider to this Amendment.
c. The
payment by Borrower of Administrative Agent’s and the Lenders’ fees and expenses arising in connection with the preparation
and delivery of this Amendment and any documents, agreements or instruments referred to herein, including, without limitation, the reasonable
fees and expenses of the consultants, attorneys or other professionals retained by Lenders or Administrative Agent in connection with
the negotiation and preparation of this Amendment.
d. All
representations and warranties of the Borrower contained in the Loan Agreement and the Loan Documents shall be true and correct in all
material respects at and as of the date hereof as though then made, except for such representations and warranties as by their terms expressly
speak as of an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of
such earlier date.
e. No
Default or Event of Default shall have occurred and be continuing under the Loan Documents.
f. Approval of this Amendment by the Mortgage Lenders.
4. Representations
and Warranties. Borrower hereby represents and warrants to the Administrative Agent and Lenders as follows:
a. All
representations and warranties set forth in the Loan Agreement and the other Loan Documents are true, correct and complete in all material
respects as of the date of this Amendment.
b. To
Borrower’s knowledge, no event has occurred and is continuing, and no condition exists, which constitutes or which after notice
or lapse of time, or both, would constitute a Default or Event of Default under the Loan Documents.
c. The
execution and delivery by Borrower of this Amendment and all other documents, instruments, and agreements executed in connection with
this Amendment and the performance by it of the transactions herein contemplated (i) are and will be within its powers, (ii) have
been authorized by all necessary organizational action, and (iii) are not and will not be in contravention of any order of any court
or other agency of government, of law or any other indenture, agreement or undertaking to which Borrower is a party or by which the property
of Borrower is bound, or be in conflict with, result in a breach of, or constitute (with due notice and/or lapse of time) a default under
any such indenture, agreement or undertaking or result in the imposition of any lien, charge or encumbrance of any nature on any of the
properties of Borrower.
d. This
Amendment and all other documents, instruments and agreements executed in connection with this Amendment and any assignment, instrument,
document, or agreement executed and delivered in connection herewith, are valid,
binding and enforceable in accordance with its respective terms.
SECOND AMENDMENT TO MEZZANINE LOAN AGREEMENT
2
5. Reaffirmation.
Except as expressly modified hereby, all of the terms, covenants and conditions of the Loan Documents remain unmodified and in full force
and effect and are hereby ratified and confirmed by Borrower. Any waiver of the requirements of the Loan with respect to the specific
matters set forth herein does not constitute a waiver of such requirements for future matters.
6. Conforming
Agreements. It is the intention of the parties to this Amendment that this Amendment shall be deemed to form a part of the Loan Documents,
and it shall constitute a Loan Document as referred to herein and therein. Any breach of the representations, warranties, covenants and
agreements set forth in this Amendment shall constitute an Event of Default to the extent provided in the Loan Agreement. Except as otherwise
specifically provided in this Amendment, the rights, powers, authorities, remedies, interests and benefits conferred upon Lender by and
as provided in this Amendment are intended to supplement, and be in addition to (and shall not in any way replace, supersede, amend, limit
or restrict), the rights, powers, authorities, remedies, interests, and benefits conferred by the Loan Documents.
7. Borrower and
Guarantor Release.
a.
In
consideration of the accommodations being made available by Lenders to or for the benefit of Borrower and Guarantor under this
Amendment, Borrower and Guarantors, for themselves and their respective agents, employees, members, successors and assigns, do
hereby unconditionally remise, release and discharge Lenders and their employees, agents, representatives, officers, and their
respective successors and assigns (the “Released Parties”) of and from any and all claims, counterclaims,
demands, actions and causes of action of any nature whatsoever, whether at law or in equity, arising out of or relating to any of
the Loan Documents, any acts or omissions of any Released Party in connection therewith, the transactions described in this
Amendment, which any of them, now has or hereafter can or may have against any of the Released Parties, from the beginning of the
world to the date hereof.
b. Borrower and
Guarantor hereby waive the provisions of any applicable laws restricting the release of claims which the releasing parties do not know
or suspect to exist at the time of release, which, if known, would have materially affected the decision to agree to these releases. In
this connection, Borrower and Guarantor hereby agree, represent and warrant to the Lenders that they realize and acknowledge that factual
matters now unknown may have given or may hereafter give rise to causes of action, claims, demands, debts, controversies, damages, costs,
losses and expenses which are presently unknown, unanticipated and unsuspected, and Borrower and Guarantor further agree, represent and
warrant that the releases provided herein have been negotiated and agreed upon in light of that realization and that Borrower and Guarantor
nevertheless hereby intend to release, discharge and acquit the parties set forth hereinabove from any such unknown causes of action,
claims, demands, debts, controversies, damages, costs, losses and expenses which are in any manner set forth in or related to the Loan
or the B Loan and all dealings in connection therewith. In making this waiver, Borrower and Guarantor understand and acknowledge that they may hereafter
discover facts in addition to or different from those that are currently known or believed to be true with respect to the subject matter
of this release, but agree that they have taken that possibility into account in accepting the B Loan and that, notwithstanding the discovery
or existence of any such additional or different facts, as to which Borrower and Guarantor expressly assume the risk, they fully, finally
and forever settle and release any and all claims released hereunder, known or unknown, suspected or unsuspected, which now exist, or
heretofore existed, and without regard to the subsequent discovery or existence of such additional or different facts.
SECOND AMENDMENT TO MEZZANINE LOAN AGREEMENT
3
c. Borrower
and Guarantor hereby acknowledge that they have not relied upon any representation of any kind made by the Lenders or any affiliate of
the Lenders in making the foregoing release.
d. Borrower
and Guarantor represent and warrant to the Lenders that they have not heretofore assigned or transferred, or purported to assign or to
transfer, to any person or entity any matter released by such party hereunder or any portion thereof or interest therein, and each Borrower
and Guarantor agrees to indemnify, protect, defend and hold each of the Lenders harmless from and against any and all claims based on
or arising out of any such assignment or transfer or purported assignment or transfer by such party.
8. Ratification
and Reaffirmation. Except as modified by this Amendment, each of the Loan Documents and the respective obligations, indebtedness and
liabilities of the Borrower and Guarantors thereunder are hereby ratified, reaffirmed and confirmed by the Borrower and Guarantors. Each
Guarantor hereby acknowledges and consents to the foregoing amendments to the Loan Agreement and all of the other Loan Documents. Each
Guarantor hereby ratifies, confirms, reaffirms and covenants that the Guaranty is validly existing and binding against Guarantors. Each
Guarantor hereby reaffirms and restates, as of the date hereof, all covenants, representations and warranties set forth in the Guaranty.
9. Obligations
Remain in Full Force and Effect. The obligations of Borrower under the Loan Documents shall, except as expressly modified herein,
remain in full force and effect, and shall not be released, impaired, diminished or in any other way modified or amended as a result of
the execution and delivery of this Amendment or by the agreements and undertakings of the parties contained herein. Borrower hereby ratifies
and confirms each of the Loan Documents to which it is a party and the rights granted thereunder in favor of Lender.
10. No
Waiver. Except as otherwise specifically provided in this Amendment, Lenders’ execution of or performance under this Amendment
does not (and it shall not be construed so as to) waive, relinquish, restrict or limit in any way any of the rights, remedies, claims
or causes of action that Lender has or may have under or with respect to the Loan Documents, or applicable law (all of which are expressly
reserved) regardless of whether any of the foregoing relate to or arise out of acts, omissions, events or transactions occurring before
or after the date hereof. Except as otherwise specifically provided in this Amendment, Lender hereby expressly reserves all rights to
take any and all actions, and exercise any and all remedies, authorized under any Loan Document or at law or in equity as a result of
or with respect to the occurrence and continuance of any defaults, violations or events of default that have or may have heretofore occurred
thereunder and any defaults, violations or events of default that may hereafter occur or exist thereunder. Nothing contained
herein, and no action taken by Lender pursuant hereto or as provided herein, shall be deemed to be a waiver of any of such defaults, violations
or events of default.
SECOND AMENDMENT TO MEZZANINE LOAN AGREEMENT
4
11. Governing
Law. This Amendment shall be governed in accordance with the terms and provisions of Section 19.3 of the Loan Agreement.
12. Counterparts.
This Amendment may be executed and delivered (including by DocuSign or similar electronic transmission) in any number of counterparts,
each of which shall be an original, but all of which shall, together, constitute one and the same instrument.
13. Entire
Agreement. This Amendment together with the Loan Agreement and the other Loan Documents contains all of the agreements of the parties
hereto with respect to the matters contained herein and therein and all prior or contemporaneous agreements or understandings, oral or
written, pertaining to any such matters are merged herein and shall not be effective for any purpose.
14. Successors
and Assigns. This Amendment shall inure to the benefit of and shall be binding on the parties hereto and their respective successors
and permitted assigns.
15. Accommodations.
These amendments are one-time accommodations to Borrower and shall not be construed to grant any further accommodations to Borrower or
any other amendments or modifications or constitute a course of conduct in granting future accommodations, consents or approvals.
16. Exculpation. Article XVIII of the Loan Agreement is hereby incorporated herein
by reference.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
SECOND AMENDMENT TO MEZZANINE LOAN AGREEMENT
5
IN WITNESS WHEREOF, this Amendment has
been executed as of the day and year first above written.
ADMINISTRATIVE
AGENT:
NREF OP IV REIT SUB, LLC,
a Delaware limited liability company
By:
/s/ Paul Richards
Name:
Paul Richards
Title:
Authorized Signatory
LENDER:
NREF OP IV REIT SUB, LLC,
a Delaware limited liability company
By:
/s/ Paul Richards
Name:
Paul Richards
Title:
Authorized Signatory
BORROWER:
IQHQ-ALEWIFE HOLDINGS, LLC,
a Delaware limited liability company
By:
/s/ Christopher W. Brewer
Name:
Christopher W. Brewer
Title:
General Counsel
CONSENT
AND REAFFIRMATION
The undersigned
hereby (a) consents to this Amendment and to the transactions contemplated thereby, even if no such consent is in fact
required; (b) reaffirms its representations and warranties (subject to the Representation Remaking Qualifications) covenants,
liabilities, obligations and agreements under each of the Loan Documents to which it is a party, with the same force and effect as
if each were separately stated herein and made as of the date hereof, as may be modified, amended or affected by this Amendment and
(c) joins in the releases in Section 11 hereof as if separately signed by Guarantor.
GUARANTOR:
IQHQ, LP,
Delaware limited partnership
By:
IQHQ GP, LLC,
a Delaware limited liability company,
its general partner
By:
/s/
Christopher W. Brewer
Name:
Christopher W. Brewer
Title:
General Counsel
THIRD AMENDMENT TO AMENDED
AND RESTATED
MEZZANINE LOAN AND SECURITY AGREEMENT
This THIRD AMENDMENT TO AMENDED
AND RESTATED MEZZANINE LOAN AND SECURITY AGREEMENT (“Amendment”) is executed as of April 24, 2026 by IQHQ-ALEWIFE
HOLDINGS, LLC, a Delaware limited liability company (“Borrower”), and NREF OP IV REIT SUB, LLC, a Delaware limited
liability company (together with its successors and assigns, “Administrative Agent”), and the Lenders (as defined
in the Loan Agreement (as defined below)).
RECITALS
A. Borrower, Administrative Agent and the Lenders entered into that certain Amended and Restated Mezzanine Loan and Security Agreement
dated as of September 30, 2025, that certain First Amendment to Amended and Restated Mezzanine Loan and Security Agreement
dated as of March 31, 2026, and that certain Second Amendment to Amended and Restated Mezzanine Loan and Security Agreement
dated as of April 16, 2026 (as so amended, and as the same may be amended, supplemented or otherwise modified from time to
time, the “Loan Agreement”), whereby Lenders made a loan (the “Loan”) to
Borrower in the maximum amount of ONE HUNDRED THIRTY-THREE MILLION and 00/100 Dollars ($133,000,000.00), which Loan was increased by
TWENTY THREE MILLION and 00/100 ($23,000,000) (the “B Loan”) for the purposes as set forth in the Loan
Agreement. Capitalized terms used but not otherwise defined herein shall have the respective meanings given thereto in the Loan
Agreement.
B. In
connection with the Loan, the Guarantor executed and delivered the Guaranties (as defined in the Loan Agreement).
C. The
Borrower has requested that the Lenders extend the B Note Maturity Date. The Lenders are willing to extend the B Note Maturity Date pursuant
to, and in accordance with, the terms of this Amendment.
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Borrower, Administrative Agent and the Lenders agree
as follows:
1.
Revised Defined Terms. The following definitions in the Loan Agreement are hereby amended as
follows:
“B Note Maturity Date” means May 1,
2026.
2.
Maturity of the B Loan. The term of the B Loan shall terminate and expire on the B Note Maturity Date.
All amounts payable under this Amendment and the Loan Documents with respect to the B Loan, including, without limitation, interest,
costs and charges (including, without limitation, the B Note Exit Fee), shall be due and payable in full on the B Note Maturity
Date, and Borrower shall repay the same in full.
THIRD AMENDMENT TO MEZZANINE LOAN AGREEMENT
-1-
3.
Conditions to Amendment. This Amendment and the agreements of Lender
described herein will not be effective unless and until all of the following have occurred or have been satisfied:
a. Administrative
Agent and the Lenders shall have received a fully executed copy of this Amendment.
b. The
consent to this Amendment by the Guarantor by execution of the rider to this Amendment.
c.
The payment by Borrower of Administrative Agent’s
and the Lenders’ fees and expenses arising in connection with the preparation and delivery of this Amendment and any
documents, agreements or instruments referred to herein, including, without limitation, the reasonable fees and expenses of the
consultants, attorneys or other professionals retained by Lenders or Administrative Agent in connection with the negotiation and
preparation of this Amendment.
d. All representations
and warranties of the Borrower contained in the Loan Agreement and the Loan Documents shall be true and correct in all material respects
at and as of the date hereof as though then made, except for such representations and warranties as by their terms expressly speak as
of an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier
date.
e. No
Default or Event of Default shall have occurred and be continuing under the Loan Documents.
f. Approval of this Amendment by the Mortgage Lenders.
4.
Representations and Warranties. Borrower hereby represents and warrants to the
Administrative Agent and Lenders as follows:
a. All
representations and warranties set forth in the Loan Agreement and the other Loan Documents are true, correct and complete in all material
respects as of the date of this Amendment.
b. To
Borrower’s knowledge, no event has occurred and is continuing, and no condition exists, which constitutes or which after notice
or lapse of time, or both, would constitute a Default or Event of Default under the Loan Documents.
c. The execution
and delivery by Borrower of this Amendment and all other documents, instruments, and agreements executed in connection with this Amendment
and the performance by it of the transactions herein contemplated (i) are and will be within its powers, (ii) have been authorized
by all necessary organizational action, and (iii) are not and will not be in contravention of any order of any court or other agency
of government, of law or any other indenture, agreement or undertaking to which Borrower is a party or by which the property of Borrower
is bound, or be in conflict with, result in a breach of, or constitute (with due notice and/or lapse of time) a default under any such
indenture, agreement or undertaking or result in
the imposition of any lien, charge or encumbrance of any nature on any of the properties of Borrower.
THIRD AMENDMENT TO MEZZANINE LOAN AGREEMENT
-2-
d. This Amendment
and all other documents, instruments and agreements executed in connection with this Amendment and any assignment, instrument, document,
or agreement executed and delivered in connection herewith, are valid, binding and enforceable in accordance with its respective terms.
5. Reaffirmation.
Except as expressly modified hereby, all of the terms, covenants and conditions of the Loan Documents remain unmodified and in full force
and effect and are hereby ratified and confirmed by Borrower. Any waiver of the requirements of the Loan with respect to the specific
matters set forth herein does not constitute a waiver of such requirements for future matters.
6.
Conforming Agreements. It is the intention of the parties to this Amendment
that this Amendment shall be deemed to form a part of the Loan Documents, and it shall constitute a Loan Document as referred to herein
and therein. Any breach of the representations, warranties, covenants and agreements set forth in this Amendment shall constitute an
Event of Default to the extent provided in the Loan Agreement. Except as otherwise specifically provided in this Amendment, the rights,
powers, authorities, remedies, interests and benefits conferred upon Lender by and as provided in this Amendment are intended to supplement,
and be in addition to (and shall not in any way replace, supersede, amend, limit or restrict), the rights, powers, authorities, remedies,
interests, and benefits conferred by the Loan Documents.
7.
Borrower and Guarantor Release.
a. In consideration
of the accommodations being made available by Lenders to or for the benefit of Borrower and Guarantor under this Amendment, Borrower and
Guarantors, for themselves and their respective agents, employees, members, successors and assigns, do hereby unconditionally remise,
release and discharge Lenders and their employees, agents, representatives, officers, and their respective successors and assigns (the
“Released Parties”) of and from any and all claims, counterclaims, demands, actions and causes of action of
any nature whatsoever, whether at law or in equity, arising out of or relating to any of the Loan Documents, any acts or omissions of
any Released Party in connection therewith, the transactions described in this Amendment, which any of them, now has or hereafter can
or may have against any of the Released Parties, from the beginning of the world to the date hereof.
b. Borrower and
Guarantor hereby waive the provisions of any applicable laws restricting the release of claims which the releasing parties do not know
or suspect to exist at the time of release, which, if known, would have materially affected the decision to agree to these releases. In
this connection, Borrower and Guarantor hereby agree, represent and warrant to the Lenders that they realize and acknowledge that factual
matters now unknown may have given or may hereafter give rise to causes of action, claims, demands, debts, controversies, damages, costs,
losses and expenses which are presently unknown, unanticipated and unsuspected, and Borrower and Guarantor further agree, represent and
warrant that the releases provided herein have been negotiated and agreed upon in light of that realization and that Borrower and
Guarantor nevertheless hereby intend to release, discharge and acquit the parties set forth hereinabove from any such unknown causes of
action, claims, demands, debts, controversies, damages, costs, losses and expenses which are in any manner set forth in or related to
the Loan or the B Loan and all dealings in connection therewith. In making this waiver, Borrower and Guarantor understand and acknowledge
that they may hereafter discover facts in addition to or different from those that are currently known or believed to be true with respect
to the subject matter of this release, but agree that they have taken that possibility into account in accepting the B Loan and that,
notwithstanding the discovery or existence of any such additional or different facts, as to which Borrower and Guarantor expressly assume
the risk, they fully, finally and forever settle and release any and all claims released hereunder, known or unknown, suspected or unsuspected,
which now exist, or heretofore existed, and without regard to the subsequent discovery or existence of such additional or different facts.
THIRD AMENDMENT TO MEZZANINE LOAN AGREEMENT
-3-
c. Borrower
and Guarantor hereby acknowledge that they have not relied upon any representation of any kind made by the Lenders or any affiliate of
the Lenders in making the foregoing release.
d. Borrower
and Guarantor represent and warrant to the Lenders that they have not heretofore assigned or transferred, or purported to assign or to
transfer, to any person or entity any matter released by such party hereunder or any portion thereof or interest therein, and each Borrower
and Guarantor agrees to indemnify, protect, defend and hold each of the Lenders harmless from and against any and all claims based on
or arising out of any such assignment or transfer or purported assignment or transfer by such party.
8.
Ratification and Reaffirmation. Except as modified by this Amendment,
each of the Loan Documents and the respective obligations, indebtedness and liabilities of the Borrower and Guarantors thereunder are
hereby ratified, reaffirmed and confirmed by the Borrower and Guarantors. Each Guarantor hereby acknowledges and consents to the foregoing
amendments to the Loan Agreement and all of the other Loan Documents. Each Guarantor hereby ratifies, confirms, reaffirms and covenants
that the Guaranty is validly existing and binding against Guarantors. Each Guarantor hereby reaffirms and restates, as of the date hereof,
all covenants, representations and warranties set forth in the Guaranty.
9.
Obligations Remain in Full Force and Effect. The obligations of Borrower under the Loan Documents
shall, except as expressly modified herein, remain in full force and effect, and shall not be released, impaired, diminished or in any
other way modified or amended as a result of the execution and delivery of this Amendment or by the agreements and undertakings of the
parties contained herein. Borrower hereby ratifies and confirms each of the Loan Documents to which it is a party and the rights granted
thereunder in favor of Lender.
10. No
Waiver. Except as otherwise specifically provided in this Amendment, Lenders’ execution of or performance under this
Amendment does not (and it shall not be construed so as to) waive, relinquish, restrict or limit in any way any of the rights, remedies,
claims or causes of action that Lender has or may have under or with respect to the Loan Documents, or applicable law (all of which are
expressly reserved) regardless of whether any of the foregoing relate to or arise out of acts, omissions, events or transactions occurring
before or after the date hereof. Except as otherwise specifically provided
in this Amendment, Lender hereby expressly reserves all rights to take any and all actions, and exercise any and all remedies, authorized
under any Loan Document or at law or in equity as a result of or with respect to the occurrence and continuance of any defaults, violations
or events of default that have or may have heretofore occurred thereunder and any defaults, violations or events of default that may hereafter
occur or exist thereunder. Nothing contained herein, and no action taken by Lender pursuant hereto or as provided herein, shall be deemed
to be a waiver of any of such defaults, violations or events of default.
THIRD AMENDMENT TO MEZZANINE LOAN AGREEMENT
-4-
11. Governing
Law. This Amendment shall be governed in accordance with the terms and provisions of Section 19.3 of the Loan Agreement.
12. Counterparts.
This Amendment may be executed and delivered (including by DocuSign or similar electronic transmission) in any number of counterparts,
each of which shall be an original, but all of which shall, together, constitute one and the same instrument.
13. Entire
Agreement. This Amendment together with the Loan Agreement and the other Loan Documents contains all of the agreements of the parties
hereto with respect to the matters contained herein and therein and all prior or contemporaneous agreements or understandings, oral or
written, pertaining to any such matters are merged herein and shall not be effective for any purpose.
14. Successors
and Assigns. This Amendment shall inure to the benefit of and shall be binding on the parties hereto and their respective successors
and permitted assigns.
15. Accommodations.
These amendments are one-time accommodations to Borrower and shall not be construed to grant any further accommodations to Borrower or
any other amendments or modifications or constitute a course of conduct in granting future accommodations, consents or approvals.
16. Exculpation.
Article XVIII of the Loan Agreement is hereby incorporated herein by reference.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
THIRD AMENDMENT TO MEZZANINE LOAN AGREEMENT
-5-
IN WITNESS WHEREOF, this Amendment has been executed
as of the day and year first above written.
ADMINISTRATIVE AGENT:
NREF OP IV REIT SUB, LLC,
a Delaware limited liability company
By:
/s/ Paul Richards
Name:
Paul Richards
Title:
Authorized Signatory
LENDER:
NREF OP IV REIT SUB, LLC,
a Delaware limited liability company
By:
/s/ Paul Richards
Name:
Paul Richards
Title:
Authorized Signatory
BORROWER:
IQHQ-ALEWIFE HOLDINGS, LLC,
a Delaware limited liability company
By:
/s/ Christopher W. Brewer
Name:
Christopher W. Brewer
Title:
Manager
CONSENT
AND REAFFIRMATION
The
undersigned hereby (a) consents to this Amendment and to the transactions contemplated thereby, even if no such consent is in fact
required; (b) reaffirms its representations and warranties (subject to the Representation Remaking Qualifications) covenants, liabilities,
obligations and agreements under each of the Loan Documents to which it is a party, with the same force and effect as if each were separately
stated herein and made as of the date hereof, as may be modified, amended or affected by this Amendment and (c) joins in the releases
in Section 11 hereof as if separately signed by Guarantor.
GUARANTOR:
IQHQ, LP,
a Delaware limited partnership
By:
IQHQ GP, LLC,
a Delaware limited liability company,
its general partner
By:
/s/
Christopher W. Brewer
Name: Christopher W. Brewer
Title: General Counsel
FOURTH AMENDMENT TO AMENDED AND RESTATED
MEZZANINE
LOAN AND SECURITY AGREEMENT
This
FOURTH AMENDMENT TO AMENDED AND RESTATED MEZZANINE LOAN AND SECURITY AGREEMENT (“Amendment”) is executed as
of May 1, 2026 by IQHQ-ALEWIFE HOLDINGS, LLC, a Delaware limited liability company (“Borrower”), and NREF
OP IV REIT SUB, LLC, a Delaware limited liability company (together with its successors and assigns, “Administrative Agent”),
and the Lenders (as defined in the Loan Agreement (as defined below)).
RECITALS
A. Borrower,
Administrative Agent and the Lenders entered into that certain Amended and Restated Mezzanine Loan and Security Agreement dated as of
September 30, 2025, that certain First Amendment to Amended and Restated Mezzanine Loan and Security Agreement dated as of March 31,
2026, that certain Second Amendment to Amended and Restated Mezzanine Loan and Security Agreement dated as of April 16, 2026, and
that certain Third Amendment to Amended and Restated Mezzanine Loan and Security Agreement dated as of April 24, 2026 (as so amended,
and as the same may be amended, supplemented or otherwise modified from time to time, the “Loan Agreement”),
whereby Lenders made a loan (the “Loan”) to Borrower in the maximum amount of ONE HUNDRED THIRTY-THREE MILLION
and 00/100 Dollars ($133,000,000.00), which Loan was increased by TWENTY THREE MILLION and 00/100 ($23,000,000) (the “B Loan”)
for the purposes as set forth in the Loan Agreement. Capitalized terms used but not otherwise defined herein shall have the respective
meanings given thereto in the Loan Agreement.
B. In
connection with the Loan, the Guarantor executed and delivered the Guaranties (as defined in the Loan Agreement).
C.
The Borrower has requested that the Lenders extend the B
Note Maturity Date. The Lenders are willing to extend the B Note Maturity Date pursuant to, and in accordance with, the terms of this
Amendment.
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Borrower, Administrative
Agent and the Lenders agree as follows:
1.
Revised Defined Terms. The following definitions in the Loan Agreement are hereby amended as follows:
“B Note Maturity
Date” means May 15, 2026.
2.
Maturity of the B Loan. The term of the B Loan shall terminate and expire on the B Note Maturity Date. All amounts payable under
this Amendment and the Loan Documents with respect to the B Loan, including, without limitation, interest, costs and charges (including,
without limitation, the B Note Exit Fee), shall be due and payable in full on the B Note Maturity Date, and Borrower shall repay the
same in full.
FOURTH AMENDMENT TO MEZZANINE LOAN AGREEMENT
-1-
3. Conditions
to Amendment. This Amendment and the agreements of Lender described herein will not be effective unless and until all of the following
have occurred or have been satisfied:
a. Administrative
Agent and the Lenders shall have received a fully executed copy of this Amendment.
b. The
consent to this Amendment by the Guarantor by execution of the rider to this Amendment.
c. The
payment by Borrower of Administrative Agent’s and the Lenders’ fees and expenses arising in connection with the preparation
and delivery of this Amendment and any documents, agreements or instruments referred to herein, including, without limitation, the reasonable
fees and expenses of the consultants, attorneys or other professionals retained by Lenders or Administrative Agent in connection with
the negotiation and preparation of this Amendment.
d. All
representations and warranties of the Borrower contained in the Loan Agreement and the Loan Documents shall be true and correct in all
material respects at and as of the date hereof as though then made, except for such representations and warranties as by their terms
expressly speak as of an earlier date, in which case such representations and warranties shall be true and correct in all material respects
as of such earlier date.
e. No
Default or Event of Default shall have occurred and be continuing under the Loan Documents.
f.
Approval of this Amendment by the Mortgage
Lenders.
4. Representations
and Warranties. Borrower hereby represents and warrants to the Administrative Agent and Lenders as follows:
a. All
representations and warranties set forth in the Loan Agreement and the other Loan Documents are true, correct and complete in all material
respects as of the date of this Amendment.
b. To
Borrower’s knowledge, no event has occurred and is continuing, and no condition exists, which constitutes or which after notice
or lapse of time, or both, would constitute a Default or Event of Default under the Loan Documents.
c. The
execution and delivery by Borrower of this Amendment and all other documents, instruments, and agreements executed in connection with
this Amendment and the performance by it of the transactions herein contemplated (i) are and will be within its powers, (ii) have
been authorized by all necessary organizational action, and (iii) are not and will not be in contravention of any order of any court
or other agency of government, of law or any other indenture, agreement or undertaking to which Borrower is a party or by which the property
of Borrower is bound, or be in conflict with, result in a breach of, or constitute (with due notice and/or lapse of time) a default under
any such indenture, agreement or undertaking or result in the imposition of any lien, charge or encumbrance of any nature on any of the
properties of Borrower.
FOURTH AMENDMENT TO MEZZANINE LOAN AGREEMENT
-2-
d. This
Amendment and all other documents, instruments and agreements executed in connection with this Amendment and any assignment, instrument,
document, or agreement executed and delivered in connection herewith, are valid, binding and enforceable in accordance with its respective
terms.
5. Reaffirmation.
Except as expressly modified hereby, all of the terms, covenants and conditions of the Loan Documents remain unmodified and in full force
and effect and are hereby ratified and confirmed by Borrower. Any waiver of the requirements of the Loan with respect to the specific
matters set forth herein does not constitute a waiver of such requirements for future matters.
6. Conforming
Agreements. It is the intention of the parties to this Amendment that this Amendment shall be deemed to form a part of the Loan Documents,
and it shall constitute a Loan Document as referred to herein and therein. Any breach of the representations, warranties, covenants and
agreements set forth in this Amendment shall constitute an Event of Default to the extent provided in the Loan Agreement. Except as otherwise
specifically provided in this Amendment, the rights, powers, authorities, remedies, interests and benefits conferred upon Lender by and
as provided in this Amendment are intended to supplement, and be in addition to (and shall not in any way replace, supersede, amend,
limit or restrict), the rights, powers, authorities, remedies, interests, and benefits conferred by the Loan Documents.
7.
Borrower and Guarantor Release.
a. In
consideration of the accommodations being made available by Lenders to or for the benefit of Borrower and Guarantor under this Amendment,
Borrower and Guarantors, for themselves and their respective agents, employees, members, successors and assigns, do hereby unconditionally
remise, release and discharge Lenders and their employees, agents, representatives, officers, and their respective successors and assigns
(the “Released Parties”) of and from any and all claims, counterclaims, demands, actions and causes of action
of any nature whatsoever, whether at law or in equity, arising out of or relating to any of the Loan Documents, any acts or omissions
of any Released Party in connection therewith, the transactions described in this Amendment, which any of them, now has or hereafter
can or may have against any of the Released Parties, from the beginning of the world to the date hereof.
b. Borrower
and Guarantor hereby waive the provisions of any applicable laws restricting the release of claims which the releasing parties do not
know or suspect to exist at the time of release, which, if known, would have materially affected the decision to agree to these releases.
In this connection, Borrower and Guarantor hereby agree, represent and warrant to the Lenders that they realize and acknowledge that
factual matters now unknown may have given or may hereafter give rise to causes of action, claims, demands, debts, controversies, damages,
costs, losses and expenses which are presently unknown, unanticipated and unsuspected, and Borrower and Guarantor further agree, represent
and warrant that the releases provided herein have been negotiated and agreed upon in light of that realization and that Borrower and
Guarantor nevertheless hereby intend to release, discharge and acquit the parties set forth hereinabove from any such unknown causes
of action, claims, demands, debts, controversies, damages, costs, losses and expenses which are in any manner set forth in or related
to the Loan or the B Loan and all dealings in connection therewith. In making this waiver, Borrower and Guarantor understand and acknowledge
that they may hereafter discover facts in addition to or different from those that are currently known or believed to be true with respect
to the subject matter of this release, but agree that they have taken that possibility into account in accepting the B Loan and that,
notwithstanding the discovery or existence of any such additional or different facts, as to which Borrower and Guarantor expressly assume
the risk, they fully, finally and forever settle and release any and all claims released hereunder, known or unknown, suspected or unsuspected,
which now exist, or heretofore existed, and without regard to the subsequent discovery or existence of such additional or different facts.
FOURTH AMENDMENT TO MEZZANINE LOAN AGREEMENT
-3-
c. Borrower
and Guarantor hereby acknowledge that they have not relied upon any representation of any kind made by the Lenders or any affiliate of
the Lenders in making the foregoing release.
d. Borrower
and Guarantor represent and warrant to the Lenders that they have not heretofore assigned or transferred, or purported to assign or to
transfer, to any person or entity any matter released by such party hereunder or any portion thereof or interest therein, and each Borrower
and Guarantor agrees to indemnify, protect, defend and hold each of the Lenders harmless from and against any and all claims based on
or arising out of any such assignment or transfer or purported assignment or transfer by such party.
8. Ratification
and Reaffirmation. Except as modified by this Amendment, each of the Loan Documents and the respective obligations, indebtedness
and liabilities of the Borrower and Guarantors thereunder are hereby ratified, reaffirmed and confirmed by the Borrower and Guarantors.
Each Guarantor hereby acknowledges and consents to the foregoing amendments to the Loan Agreement and all of the other Loan Documents.
Each Guarantor hereby ratifies, confirms, reaffirms and covenants that the Guaranty is validly existing and binding against Guarantors.
Each Guarantor hereby reaffirms and restates, as of the date hereof, all covenants, representations and warranties set forth in the Guaranty.
9. Obligations
Remain in Full Force and Effect. The obligations of Borrower under the Loan Documents shall, except as expressly modified herein,
remain in full force and effect, and shall not be released, impaired, diminished or in any other way modified or amended as a result
of the execution and delivery of this Amendment or by the agreements and undertakings of the parties contained herein. Borrower hereby
ratifies and confirms each of the Loan Documents to which it is a party and the rights granted thereunder in favor of Lender.
10. No
Waiver. Except as otherwise specifically provided in this Amendment, Lenders’ execution of or performance under this Amendment
does not (and it shall not be construed so as to) waive, relinquish, restrict or limit in any way any of the rights, remedies, claims
or causes of action that Lender has or may have under or with respect to the Loan Documents, or applicable law (all of which are expressly
reserved) regardless of whether any of the foregoing relate to or arise out of acts, omissions, events or transactions occurring before
or after the date hereof. Except as otherwise specifically provided in this Amendment, Lender hereby expressly reserves all rights to
take any and all actions, and exercise any and all remedies, authorized under any Loan Document or at law or in equity as a result of
or with respect to the occurrence and continuance of any defaults, violations or events of default that have or may have heretofore occurred
thereunder and any defaults, violations or events of default that may hereafter occur or exist thereunder. Nothing contained herein,
and no action taken by Lender pursuant hereto or as provided herein, shall be deemed to be a waiver of any of such defaults, violations
or events of default.
FOURTH AMENDMENT TO MEZZANINE LOAN AGREEMENT
-4-
11. Governing
Law. This Amendment shall be governed in accordance with the terms and provisions of Section 19.3 of the Loan Agreement.
12. Counterparts.
This Amendment may be executed and delivered (including by DocuSign or similar electronic transmission) in any number of counterparts,
each of which shall be an original, but all of which shall, together, constitute one and the same instrument.
13. Entire
Agreement. This Amendment together with the Loan Agreement and the other Loan Documents contains all of the agreements of the parties
hereto with respect to the matters contained herein and therein and all prior or contemporaneous agreements or understandings, oral or
written, pertaining to any such matters are merged herein and shall not be effective for any purpose.
14. Successors
and Assigns. This Amendment shall inure to the benefit of and shall be binding on the parties hereto and their respective successors
and permitted assigns.
15. Accommodations.
These amendments are one-time accommodations to Borrower and shall not be construed to grant any further accommodations to Borrower or
any other amendments or modifications or constitute a course of conduct in granting future accommodations, consents or approvals.
16.
Exculpation. Article XVIII of the Loan Agreement is hereby incorporated herein by reference.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
FOURTH AMENDMENT TO MEZZANINE LOAN AGREEMENT
-5-
IN WITNESS WHEREOF,
this Amendment has been executed as of the day and year first above written.
ADMINISTRATIVE AGENT:
NREF OP IV REIT SUB, LLC,
a Delaware limited liability company
By:
/s/ Paul Richards
Name:
Paul Richards
Title:
Authorized Signatory
LENDER:
NREF OP IV REIT SUB, LLC,
a Delaware limited liability company
By:
/s/ Paul Richards
Name:
Paul Richards
Title:
Authorized Signatory
BORROWER:
IQHQ-ALEWIFE HOLDINGS, LLC,
a Delaware limited liability company
By:
/s/ Christopher
W. Brewer
Name:
Christopher
W. Brewer
Title:
General Counsel
CONSENT
AND REAFFIRMATION
The
undersigned hereby (a) consents to this Amendment and to the transactions contemplated thereby, even if no such consent is in fact
required; (b) reaffirms its representations and warranties (subject to the Representation Remaking Qualifications) covenants, liabilities,
obligations and agreements under each of the Loan Documents to which it is a party, with the same force and effect as if each were separately
stated herein and made as of the date hereof, as may be modified, amended or affected by this Amendment and (c) joins in the releases
in Section 11 hereof as if separately signed by Guarantor.
GUARANTOR:
IQHQ, LP
a Delaware limited partnership
By:
IQHQ GP, LLC,
a Delaware limited liability company,
its general partner
By:
/s/
Christopher W. Brewer
Name:
Christopher W. Brewer
Title:
General Counsel
FIFTH
AMENDMENT TO AMENDED AND RESTATED
MEZZANINE
LOAN AND SECURITY AGREEMENT
This
FIFTH AMENDMENT TO AMENDED AND RESTATED MEZZANINE LOAN AND SECURITY AGREEMENT (“Amendment”) is executed as
of May 15, 2026 by IQHQ-ALEWIFE HOLDINGS, LLC, a Delaware limited liability company (“Borrower”), and
NREF OP IV REIT SUB, LLC, a Delaware limited liability company (together with its successors and assigns, “Administrative
Agent”), and the Lenders (as defined in the Loan Agreement (as defined below)).
RECITALS
A. Borrower,
Administrative Agent and the Lenders entered into that certain Amended and Restated Mezzanine Loan and Security Agreement dated as of
September 30, 2025, that certain First Amendment to Amended and Restated Mezzanine Loan and Security Agreement dated as of March 31,
2026, that certain Second Amendment to Amended and Restated Mezzanine Loan and Security Agreement dated as of April 16, 2026, that
certain Third Amendment to Amended and Restated Mezzanine Loan and Security Agreement dated as of April 24, 2026 and that certain
Fourth Amendment to Amended and Restated Mezzanine Loan and Security Agreement dated as of May 1, 2026 (as so amended, and as the
same may be amended, supplemented or otherwise modified from time to time, the “Loan Agreement”), whereby Lenders
made a loan (the “Loan”) to Borrower in the maximum amount of ONE HUNDRED THIRTY-THREE MILLION and 00/100 Dollars
($133,000,000.00), which Loan was increased by TWENTY THREE MILLION and 00/100 ($23,000,000) (the “B Loan”)
for the purposes as set forth in the Loan Agreement. Capitalized terms used but not otherwise defined herein shall have the respective
meanings given thereto in the Loan Agreement.
B. In
connection with the Loan, the Guarantor executed and delivered the Guaranties (as defined in the Loan Agreement).
C. The
Borrower has requested that the Lenders extend the B Note Maturity Date. The Lenders are willing to extend the B Note Maturity Date pursuant
to, and in accordance with, the terms of this Amendment.
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Borrower, Administrative
Agent and the Lenders agree as follows:
1. Revised
Defined Terms. The following definitions in the Loan Agreement are hereby amended as follows:
“B Note Maturity
Date” means May 22, 2026.
2. Maturity
of the B Loan. The term of the B Loan shall terminate and expire on the B Note Maturity Date. All amounts payable under this
Amendment and the Loan Documents with respect to the B Loan, including, without limitation, interest, costs and charges (including,
without limitation, the B Note Exit
Fee), shall be due and payable in full on the B Note Maturity Date, and Borrower shall repay the same in full.
FIFTH AMENDMENT TO MEZZANINE LOAN AGREEMENT
-1-
3. Conditions
to Amendment. This Amendment and the agreements of Lender described herein will not be effective unless and until all of the following
have occurred or have been satisfied:
a. Administrative
Agent and the Lenders shall have received a fully executed copy of this Amendment.
b. The
consent to this Amendment by the Guarantor by execution of the rider to this Amendment.
c. The
payment by Borrower of Administrative Agent’s and the Lenders’ fees and expenses arising in connection with the preparation
and delivery of this Amendment and any documents, agreements or instruments referred to herein, including, without limitation, the reasonable
fees and expenses of the consultants, attorneys or other professionals retained by Lenders or Administrative Agent in connection with
the negotiation and preparation of this Amendment.
d. All
representations and warranties of the Borrower contained in the Loan Agreement and the Loan Documents shall be true and correct in all
material respects at and as of the date hereof as though then made, except for such representations and warranties as by their terms
expressly speak as of an earlier date, in which case such representations and warranties shall be true and correct in all material respects
as of such earlier date.
e. No
Default or Event of Default shall have occurred and be continuing under the Loan Documents.
f. Approval
of this Amendment by the Mortgage Lenders.
4. Representations
and Warranties. Borrower hereby represents and warrants to the Administrative Agent and Lenders as follows:
a. All
representations and warranties set forth in the Loan Agreement and the other Loan Documents are true, correct and complete in all material
respects as of the date of this Amendment.
b. To
Borrower’s knowledge, no event has occurred and is continuing, and no condition exists, which constitutes or which after notice
or lapse of time, or both, would constitute a Default or Event of Default under the Loan Documents.
c. The
execution and delivery by Borrower of this Amendment and all other documents, instruments, and agreements executed in connection with
this Amendment and the performance by it of the transactions herein contemplated (i) are and will be within its powers, (ii) have
been authorized by all necessary organizational action, and (iii) are not and will not be in contravention of any order of any
court or other agency of government, of law or any other indenture, agreement or undertaking to which Borrower is a party or by which
the property of Borrower is bound, or be in conflict with, result in a breach of, or constitute (with due notice and/or lapse of time)
a default under any such indenture, agreement or undertaking or result in the imposition of any lien, charge or encumbrance of any nature
on any of the properties of Borrower.
FIFTH AMENDMENT TO MEZZANINE LOAN AGREEMENT
-2-
d. This
Amendment and all other documents, instruments and agreements executed in connection with this Amendment and any assignment, instrument,
document, or agreement executed and delivered in connection herewith, are valid, binding and enforceable in accordance with its respective
terms.
5. Reaffirmation.
Except as expressly modified hereby, all of the terms, covenants and conditions of the Loan Documents remain unmodified and in full force
and effect and are hereby ratified and confirmed by Borrower. Any waiver of the requirements of the Loan with respect to the specific
matters set forth herein does not constitute a waiver of such requirements for future matters.
6. Conforming
Agreements. It is the intention of the parties to this Amendment that this Amendment shall be deemed to form a part of the Loan Documents,
and it shall constitute a Loan Document as referred to herein and therein. Any breach of the representations, warranties, covenants and
agreements set forth in this Amendment shall constitute an Event of Default to the extent provided in the Loan Agreement. Except as otherwise
specifically provided in this Amendment, the rights, powers, authorities, remedies, interests and benefits conferred upon Lender by and
as provided in this Amendment are intended to supplement, and be in addition to (and shall not in any way replace, supersede, amend,
limit or restrict), the rights, powers, authorities, remedies, interests, and benefits conferred by the Loan Documents.
7. Borrower
and Guarantor Release.
a. In
consideration of the accommodations being made available by Lenders to or for the benefit of Borrower and Guarantor under this Amendment,
Borrower and Guarantors, for themselves and their respective agents, employees, members, successors and assigns, do hereby unconditionally
remise, release and discharge Lenders and their employees, agents, representatives, officers, and their respective successors and assigns
(the “Released Parties”) of and from any and all claims, counterclaims, demands, actions and causes of action
of any nature whatsoever, whether at law or in equity, arising out of or relating to any of the Loan Documents, any acts or omissions
of any Released Party in connection therewith, the transactions described in this Amendment, which any of them, now has or hereafter
can or may have against any of the Released Parties, from the beginning of the world to the date hereof.
b. Borrower
and Guarantor hereby waive the provisions of any applicable laws restricting the release of claims which the releasing parties do not
know or suspect to exist at the time of release, which, if known, would have materially affected the decision to agree to these releases.
In this connection, Borrower and Guarantor hereby agree, represent and warrant to the Lenders that they realize and acknowledge that
factual matters now unknown may have given or may hereafter give rise to causes of action, claims, demands, debts, controversies, damages,
costs, losses and expenses which are presently unknown, unanticipated and unsuspected, and Borrower and Guarantor further agree, represent
and warrant that the releases provided herein have been negotiated and agreed upon in light of that realization and that Borrower and
Guarantor nevertheless hereby intend to release, discharge and acquit the parties set forth hereinabove from any such unknown causes
of action, claims, demands, debts, controversies, damages, costs, losses and expenses which are in any manner set forth in or related
to the Loan or the B Loan and all dealings in connection therewith. In making this waiver, Borrower and Guarantor understand and acknowledge
that they may hereafter discover facts in addition to or different from those that are currently known or believed to be true with respect
to the subject matter of this release, but agree that they have taken that possibility into account in accepting the B Loan and that,
notwithstanding the discovery or existence of any such additional or different facts, as to which Borrower and Guarantor expressly assume
the risk, they fully, finally and forever settle and release any and all claims released hereunder, known or unknown, suspected or unsuspected,
which now exist, or heretofore existed, and without regard to the subsequent discovery or existence of such additional or different facts.
FIFTH AMENDMENT TO MEZZANINE LOAN AGREEMENT
-3-
c. Borrower
and Guarantor hereby acknowledge that they have not relied upon any representation of any kind made by the Lenders or any affiliate of
the Lenders in making the foregoing release.
d. Borrower
and Guarantor represent and warrant to the Lenders that they have not heretofore assigned or transferred, or purported to assign or to
transfer, to any person or entity any matter released by such party hereunder or any portion thereof or interest therein, and each Borrower
and Guarantor agrees to indemnify, protect, defend and hold each of the Lenders harmless from and against any and all claims based on
or arising out of any such assignment or transfer or purported assignment or transfer by such party.
8. Ratification
and Reaffirmation. Except as modified by this Amendment, each of the Loan Documents and the respective obligations, indebtedness
and liabilities of the Borrower and Guarantors thereunder are hereby ratified, reaffirmed and confirmed by the Borrower and Guarantors.
Each Guarantor hereby acknowledges and consents to the foregoing amendments to the Loan Agreement and all of the other Loan Documents.
Each Guarantor hereby ratifies, confirms, reaffirms and covenants that the Guaranty is validly existing and binding against Guarantors.
Each Guarantor hereby reaffirms and restates, as of the date hereof, all covenants, representations and warranties set forth in the Guaranty.
9. Obligations
Remain in Full Force and Effect. The obligations of Borrower under the Loan Documents shall, except as expressly modified herein,
remain in full force and effect, and shall not be released, impaired, diminished or in any other way modified or amended as a result
of the execution and delivery of this Amendment or by the agreements and undertakings of the parties contained herein. Borrower hereby
ratifies and confirms each of the Loan Documents to which it is a party and the rights granted thereunder in favor of Lender.
10. No
Waiver. Except as otherwise specifically provided in this Amendment, Lenders’ execution of or performance under this Amendment
does not (and it shall not be construed so as to) waive, relinquish, restrict or limit in any way any of the rights, remedies, claims
or causes of action that Lender has or may have under or with respect to the Loan Documents, or applicable law (all of which are expressly
reserved) regardless of whether any of the foregoing relate to or arise out of acts, omissions, events or transactions occurring before
or after the date hereof. Except as otherwise specifically provided in this Amendment, Lender hereby expressly reserves all rights to
take any and all actions, and exercise any and all remedies, authorized under any Loan Document or at law or in equity as a result of
or with respect to the occurrence and continuance of any defaults, violations or events of default that have or may have heretofore occurred
thereunder and any defaults, violations or events of default that may hereafter occur or exist thereunder. Nothing contained herein,
and no action taken by Lender pursuant hereto or as provided herein, shall be deemed to be a waiver of any of such defaults, violations
or events of default.
FIFTH AMENDMENT TO MEZZANINE LOAN AGREEMENT
-4-
11. Governing
Law. This Amendment shall be governed in accordance with the terms and provisions of Section 19.3 of the Loan Agreement.
12. Counterparts.
This Amendment may be executed and delivered (including by DocuSign or similar electronic transmission) in any number of counterparts,
each of which shall be an original, but all of which shall, together, constitute one and the same instrument.
13. Entire
Agreement. This Amendment together with the Loan Agreement and the other Loan Documents contains all of the agreements of the parties
hereto with respect to the matters contained herein and therein and all prior or contemporaneous agreements or understandings, oral or
written, pertaining to any such matters are merged herein and shall not be effective for any purpose.
14. Successors
and Assigns. This Amendment shall inure to the benefit of and shall be binding on the parties hereto and their respective successors
and permitted assigns.
15. Accommodations.
These amendments are one-time accommodations to Borrower and shall not be construed to grant any further accommodations to Borrower or
any other amendments or modifications or constitute a course of conduct in granting future accommodations, consents or approvals.
16. Exculpation.
Article XVIII of the Loan Agreement is hereby incorporated herein by reference.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
FIFTH AMENDMENT TO MEZZANINE LOAN AGREEMENT
-5-
IN WITNESS
WHEREOF, this Amendment has been executed as of the day and year first above written.
ADMINISTRATIVE AGENT:
NREF OP IV REIT SUB, LLC,
a Delaware limited liability company
By:
Name:
Title:
LENDER:
NREF OP IV REIT SUB, LLC,
a Delaware limited liability company
By:
Name:
Title:
BORROWER:
IQHQ-ALEWIFE HOLDINGS, LLC,
a Delaware limited liability company
By:
/s/ Christopher W.
Brewer
Name:
Christopher W. Brewer
Title:
General Counsel
CONSENT
AND REAFFIRMATION
The
undersigned hereby (a) consents to this Amendment and to the transactions contemplated thereby, even if no such consent is in fact
required; (b) reaffirms its representations and warranties (subject to the Representation Remaking Qualifications) covenants, liabilities,
obligations and agreements under each of the Loan Documents to which it is a party, with the same force and effect as if each were separately
stated herein and made as of the date hereof, as may be modified, amended or affected by this Amendment and (c) joins in the releases
in Section 11 hereof as if separately signed by Guarantor.
GUARANTOR:
IQHQ, LP,
a Delaware limited partnership
By:
IQHQ GP, LLC,
a Delaware limited liability company,
its general partner
By:
/s/ Christopher W. Brewer
Name:
Christopher W. Brewer
Title:
General Counsel
EX-10.3 — EXHIBIT 10.3
EX-10.3
Filename: tm2626535d1_ex10-3.htm · Sequence: 4
Exhibit 10.3
EXECUTION
VERSION
CO-LENDER AGREEMENT
Dated as of September 28, 2026
by and among
NREF
OP IV REIT SUB, LLC,
in its capacity as Administrative Agent,
NREF
OP IV SUBHOLDCO, LLC,
as Initial Note A-1 Holder,
IIP
LIFE SCIENCE INVESTMENTS II LLC,
as Initial Note A-2 Holder, and
NREF
OP IV SUBHOLDCO, LLC,
as Initial Note A-3 Holder
TABLE
OF CONTENTS
Page
Article I DEFINITIONS
2
1.1
Terms Defined in this Agreement
2
1.2
Definitions Incorporated from Other Agreements
7
Article II THE ADMINISTRATIVE AGENT AND SERVICER
7
2.1
Appointment and Authorization
7
2.2
Actions Requiring Consent and Approval
7
2.3
Liability of Administrative Agent
13
2.4
Reliance by Administrative Agent
13
2.5
Representations and Warranties
14
2.6
Noteholder Indemnification
15
2.7
Expenses of Noteholders
16
2.8
Administrative Agent, Servicer, Noteholders and Affiliates in Individual Capacity
16
2.9
Successor Administrative Agent and Servicer
17
2.10
Additional Administrative Agent Duties
17
2.11
Bankruptcy of Borrower; Return of Funds
18
Article III REPLACEMENT NOTES
19
3.1
Replacement Notes
19
Article IV PRIORITY; DISTRIBUTIONS
19
4.1
Priority
19
4.2
Distributions
19
4.3
Priority of Payments
20
4.4
Other Distributions
20
Article V DISTRIBUTIONS AFTER WORKOUTS
21
5.1
Distributions after Workouts
21
Article VI PROTECTIVE ADVANCES
21
6.1
Protective Advances
21
Article VII SUBSEQUENT FUNDING
22
7.1
Subsequent Funding
22
7.2
Intercreditor Payments
23
Article VIII MISCELLANEOUS
24
8.1
Terms of Agreement
24
8.2
Modifications
24
8.3
Successors and Assigns
24
8.4
Notices
24
8.5
Prior Agreements
24
8.6
Conflict; Construction of Documents
24
8.7
Governing Law
24
i
8.8
Submission to Jurisdiction
25
8.9
WAIVER OF JURY TRIAL
25
8.10
Counterparts
25
8.11
Third-Party Beneficiaries
26
8.12
A-2 Noteholder Right of First Offer
26
Article IX REIT PROTECTIONS
26
9.1
Definitions
26
9.2
Safe Harbor Acknowledgment
26
9.3
Administration and Remedies Consistent with Safe Harbor
27
9.4
IIP Control Rights to Protect REIT Status
28
9.5
A-2 Noteholder Purchase Option
28
9.6
Additional Requirements
29
9.7
Control; Conflicts
30
Exhibit A
Loan Documents
Exhibit B
Notice Addresses
Exhibit C
Commitment Percentages
ii
CO-LENDER
AGREEMENT
THIS
CO-LENDER AGREEMENT dated as of September 28, 2026 (as amended, restated, replaced, supplemented or otherwise modified
from time to time, this “Agreement”), is made between NREF OP IV REIT SUB, LLC, a Delaware limited liability
company, having a place of business at 300 Crescent Court, Suite 700, Dallas, Texas 75201, as Administrative Agent (in such capacity,
“Initial Administrative Agent”), NREF OP IV SUBHOLDCO, LLC, a Delaware limited liability company, having
an office at 300 Crescent Court, Suite 700 Dallas, Texas 75201, (in such capacity, “Initial A-1 Noteholder”), IIP
LIFE SCIENCE INVESTMENTS II LLC, a Delaware limited liability company, having an office at 11440 W. Bernardo Court, San Diego, California
92127 (in such capacity, “Initial A-2 Noteholder”), and NREF OP IV SUBHOLDCO, LLC, a Delaware limited
liability company, having an office at 300 Crescent Court, Suite 700, Dallas, Texas 75201, (in such capacity, “Initial
A-3 Noteholder”) and the other Persons (as defined herein) that become Noteholders (as defined herein) and parties to this
Agreement from time to time in accordance with the terms hereof.
W I
T N E S S E T H:
WHEREAS, IQHQ-ALEWIFE
HOLDINGS, LLC, a Delaware limited liability company (“Borrower”), Initial Administrative Agent and
Initial A-1 Noteholder entered into that certain Amended and Restated Mezzanine Loan and
Security Agreement dated as of September 30, 2025, that certain First Amendment to Amended and Restated Mezzanine Loan and Security
Agreement dated as of March 31, 2026, that certain Second Amendment to Amended and Restated Mezzanine Loan and Security Agreement
dated as of April 16, 2026, that certain Third Amendment to Amended and Restated Mezzanine Loan and Security Agreement dated as of
April 24, 2026 and that certain Fourth Amendment to Amended and Restated Mezzanine Loan and Security Agreement dated as of May 1,
2026, and that certain Fifth Amendment to Amended and Restated Mezzanine Loan and Security Agreement dated as of May 15, 2026 (as
so amended, and as the same may be amended, supplemented or otherwise modified from time to time, the “Existing Loan Agreement”),
whereby Lenders (as defined in the Existing Loan Agreement) made a loan (the “Initial Loan”) to Borrower in
the maximum amount of ONE HUNDRED THIRTY-THREE MILLION and 00/100 Dollars ($133,000,000.00) for the purposes as set forth in the Loan
Agreement;
WHEREAS,
to evidence the Loan, the Borrower executed and delivered that certain Mezzanine Promissory Note (“Note A-1”)
in the maximum principal amount of up to $133,000,000 in favor of Initial A-1 Noteholder, dated as of September 30, 2025;
WHEREAS,
to secure the Note A-1, Borrower granted for the benefit of the Initial Administrative Agent and Initial A-1 Noteholder that certain Mezzanine
Pledge and Security Agreement (Sole Member) dated as of January 26, 2024 (as amended, modified, supplemented, restated or replaced
from time to time, the “Sole Member Pledge Agreement”) pledging 100% of the direct membership interests in IQHQ-ALEWIFE
MEMBER, LLC, a Delaware limited liability company, which owns one hundred percent (100%) of the limited liability company interests
in IQHQ-ALEWIFE, LLC, a Delaware limited liability company (“Mortgage Borrower”);
WHEREAS,
to secure the Note A-1, IQHQ-ALEWIFE MEMBER, LLC, a Delaware limited liability
company, granted for the benefit of the Initial Administrative Agent and Initial A-1 Noteholder, that certain Mezzanine Pledge and Security
Agreement (Mortgage Borrower), dated as of January 26, 2024 (as amended, modified, supplemented, restated or replaced from time to
time, the “Mortgage Borrower Pledge Agreement” and together with the Sole Member Pledge Agreement, the “Pledge
Agreements”) pledging 100% of the direct membership interests in Mortgage Borrower, which Mortgage Borrower owns certain
real property in Cambridge, Massachusetts (the “Property”);
WHEREAS,
the A-1 Note and the obligations of Borrower contained therein are and shall continue to remain secured by the Pledge Agreement;
WHEREAS,
to further evidence the Loan, the Borrower additionally executed or caused to be executed and delivered in favor of Initial A-1 Noteholder
the documents listed on Exhibit A attached hereto and made a part hereof (such documents listed on Exhibit A,
collectively, the “Loan Documents”);
WHEREAS,
the Initial A-1 Noteholder appointed the Initial Administrative Agent as the administrative agent pursuant to the Existing Loan Agreement.
WHEREAS,
the Borrower has requested that the Lenders increase the Loan by the maximum principal amount of $267,000,000 (the “Loan Increase”).
The Lenders are willing to increase the Loan pursuant to, and in accordance with, the terms of that certain Sixth Amendment to Amended
and Restated Mezzanine Loan and Security Agreement of even date herewith by and between Borrower and Initial Administrative Agent and
the Lenders (the “Sixth Amendment”). Concurrently herewith, Borrower is executing and delivering to Initial
Administrative Agent on behalf of the Lenders (1) that certain Mezzanine Promissory Note B (“Note A-2”)
in the maximum principal amount of $245,000,000.00 made by Borrower in favor of Initial A-2 Noteholder, and (2) that certain Mezzanine
Promissory Note C (“Note A-3”) (each of Note A-1, Note A-2 and Note A-3 is referred to herein as a “Note”
and collectively, as the “Notes”) in the maximum principal amount of $22,000,000.00 made by Borrower in favor
of Initial A-3 Noteholder. (The Existing Loan Agreement, as amended by the Sixth Amendment, is referred to herein as the “Loan
Agreement”). Capitalized terms used but not otherwise defined herein shall have the respective meanings given thereto in the
Loan Agreement.
WHEREAS,
the Lenders desire to establish the relative rights, benefits, obligations and priorities of the Noteholders (as defined herein) with
respect to the Loan.
NOW
THEREFORE, for valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto hereby
agree as follows:
Article I
DEFINITIONS
1.1 Terms
Defined in this Agreement. As used herein, the following capitalized terms shall have the following meanings:
“A-1 Noteholder”
means the Initial A-1 Noteholder and any subsequent holder of Note A-1 that becomes a party to this Agreement.
-2-
“A-2 Noteholder”
means the Initial A-2 Noteholder and any subsequent holder of Note A-2 that becomes a party to this Agreement.
“A-3 Noteholder”
means the Initial A-3 Noteholder and any subsequent holder of Note A-3 that becomes a party to this Agreement.
“Accepted Servicing
Practices” means to service, manage and administer the Loan using good faith business judgment and the same degree of care
and diligence with which Administrative Agent services and administers loans similar to the Loan that Administrative Agent owns for its
own account, acting in accordance with applicable law, the terms of this Agreement and the Loan Documents.
“Administrative
Agent” means Initial Administrative Agent and any successor Administrative Agent appointed pursuant to the terms of this
Agreement and the Loan Agreement.
“Affiliate”
means, as to any particular Person, any Person directly or indirectly, through one or more intermediaries, Controlling, Controlled by
or under common Control with the Person or Persons in question.
“Agreement”
is defined in the Preamble hereto.
“Bankruptcy Proceeding”
means any case, proceeding or other action against the applicable Person under any existing or future law of any applicable jurisdiction
relating to bankruptcy, insolvency, reorganization or relief of debtors.
“Borrower”
is defined in the Recitals hereto.
“Borrower Party”
means any Person that, directly or indirectly, (1) owns more than ten percent (10%) of, or (2) is in control of, is controlled
by or is under common ownership or control with, Borrower or Guarantor, where “control” means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership
of voting securities, by contract or otherwise.
“Closing Date
Advance” has the meaning set forth in Section 2.7.
“Commitment”
or “Commitments” means, with respect to a given Noteholder, such Noteholder’s undivided legal and beneficial
interest in the Loan, the interest thereon, and any fees and other sums payable under the Loan Documents with respect thereto, and any
proceeds of the foregoing. The Commitment of each Noteholder shall be equal to the percentages specified in Exhibit C to this
Agreement with respect to a Noteholder, subject to any Transfers of portions of the Loan made in accordance with the terms of this Agreement.
For the avoidance of doubt, the funding of any Protective Advance by any Noteholder shall not increase the Commitment of such funding
Noteholder.
“Control”
with respect to any Person, means either (i) the ownership, directly or indirectly, of more than fifty percent (50%) (except where
the word “control” is otherwise defined in this Agreement) of the beneficial interests in such Person or (ii) the possession,
directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, through the ownership
of voting securities, by contract or otherwise. “Controlled by,” “controlling” and “under common control
with” shall (except where the word “control” is otherwise defined in this Agreement) have the respective correlative
meanings thereto.
-3-
“Costs”
is defined in Section 4.4.
“Directing Mezzanine
Lender” has the meaning assigned to such term in the Intercreditor Agreement.
“Existing Loan
Agreement” is defined in the Recitals.
“IIP”
means IIP Life Science Investments II LLC and Innovative Industrial Properties, Inc. and any of their direct or indirect subsidiaries.
“IIP Lender Obligations”
means all Debt and all other obligations, indebtedness and liabilities of Borrower under the Agreement and the other Loan Documents that
are evidenced by, or arise in respect of, Note A-2, or that are otherwise owing to any IIP Lender in its capacity as such, provided, however,
that, notwithstanding the foregoing or anything in the Loan Documents to the contrary, the IIP Lender Obligations shall not include, and
expressly exclude, any obligations, indebtedness or liabilities under or in respect of the Carry Guaranty, all of which shall constitute
Non-IIP Lender Obligations, as more particularly set forth in Section 19(f) of the Sixth Amendment. The IIP Lender Obligations
constitute the “REIT Lender Obligations”, and the Non-IIP Lender Obligations constitute the “Non-REIT Lender Obligations”
in each case as defined in the Sixth Amendment.
“Indemnified Liabilities”
is defined in Section 2.6.
“Intercreditor
Agreement” means that certain Intercreditor Agreement dated as of September 30, 2025, by and among the Senior Lenders
and the Mezzanine Lenders, as amended by the First Amendment to Intercreditor Agreement of even date herewith and as the same may be further
amended, restated, supplemented or otherwise modified from time to time.
“Initial Administrative
Agent” shall have the meaning assigned to such term in the Preamble hereto.
“Initial A-1 Noteholder”
is defined in the Preamble hereto.
“Initial A-2 Noteholder”
is defined in the Preamble hereto.
“Initial A-3 Noteholder”
is defined in the Preamble hereto.
“Initial Loan”
is defined in the Recitals.
“Loan”
means the Initial Loan as modified by the Loan Increase.
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“Loan Increase”
is defined in the Recitals.
“Loan Agreement”
is defined in the Recitals.
“Loan Documents”
is defined in the Recitals.
“Mortgage Borrower”
is defined in the Recitals.
“Mortgage Borrower
Pledge Agreement” is defined in the Recitals.
“Non-IIP Lender
Obligations” means all Debt and all other obligations, indebtedness and liabilities of Borrower under the Agreement and
the other Loan Documents, other than the IIP Lender Obligations.
“Non-IIP Lender”
means any Lender that is not IIP.
“Pledge
Agreements” is defined in the Recitals.
“Note”
and “Notes” are defined in the Recitals and shall also refer to any Replacement Note(s) given in replacement
or substitution therefor. For the avoidance of doubt, Note A-1, Note A-2 and Note A-3 correspond to, and are the same instruments as,
“Note A,” “Note B” and “Note C”, respectively, as such terms are defined in the Loan Agreement.
“Note A-1”
is defined in the Recitals.
“Note A-2”
is defined in the Recitals.
“Note A-3”
is defined in the Recitals.
“Noteholder”
means each of (i) A-1 Noteholder, (ii) A-2 Noteholder, (iii) A-3 Noteholder and (iii) the holder of any Replacement
Note(s).
“Noteholder Reply
Period” is defined in Section 2.2(e).
“Note Principal
Balance” means, with respect to a Note, at any time of determination, the outstanding amount of Loan proceeds advanced under
such Note (including any Loan Increase Closing Fees and interest payments advanced by the Noteholders in accordance with the Loan Agreement)
less any payments of principal thereon received or made on or before the applicable time of determination; provided that the “Note
Principal Balance” shall not include any amounts funded by a Noteholder as a Protective Advance.
“Note Purchase
Price” has the meaning set forth in Section 9.5(a).
“Person”
shall mean any individual, corporation, limited liability company, partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision thereof.
“Pledge Agreements”
is defined in the Recitals.
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“Pro Rata Share”
means, as of any date, the ratio (expressed as a percentage) of the Commitment of a Noteholder to the aggregate of all Commitments of
all of the Noteholders, which is initially as set forth on Exhibit C attached hereto.
“Pro Rata Share
(Loan Increase)” means, as of any date, the ratio (expressed as a percentage) of the Commitment of A-2 Noteholder and A-3
Noteholder to the aggregate of all Commitments of both A-2 Noteholder and A-3 Noteholder.
“Property”
is defined in the Recitals.
“Protective Advance”
means all sums required to be expended in respect of any (or all) of the following: (i) to remove any lien or security interest on
the pledged collateral that is senior to the lien of the Pledge Agreements, (ii) to pay real property taxes, insurance premiums or
other operating expenses or capital expenses not paid by the Borrower or Mortgage Borrower, (iii) to protect and preserve the value
or safety of the security of any collateral given as security for the Loan, (iv) to pay for expenditures which are emergency in nature,
or which are necessary to prevent personal injury, the occurrence of life safety or health issues and/or material damage or substantial
economic harm to the Property, or which are required by applicable law and (v) to cure any default under the Senior Loan.
“Repayment Pro
Rata Share” means, as of any date, the ratio (expressed as a percentage) of (x) the aggregate of the Commitment funded
by a Noteholder to (y) the aggregate of all advances funded by the Noteholders, on account of their respective Commitments.
“Removal Notice”
is defined in Section 2.9.
“Replacement Note”
or “Replacement Notes” shall have the meanings assigned to such terms in Section 3.1.
“Required Noteholders”
means Noteholders who, in the aggregate, hold a Pro Rata Share equal to one hundred percent (100%).
“Securities Act”
means the Securities Act of 1933, as amended.
“Servicer”
means NREF OP IV REIT SUB, LLC, and any other servicer or special servicer engaged by Administrative Agent to perform servicing and/or
special servicing duties with respect to the Loan.
“Servicing Fee”
means the fee payable to any Servicer for servicing the Loan.
“Sixth Amendment”
is defined in the Recitals.
“Transfer”
means any assignment, pledge, conveyance, sale, transfer, mortgage, encumbrance, grant of a security interest in, issuance of a participation
interest, or other disposition, either directly or indirectly, by operation of law or otherwise.
“Unanimous Decision”
shall have the meaning assigned to such term in Section 2.2(b).
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“Unfunded Commitment”
means the obligation of a Noteholder to make future advances pursuant to such Noteholder’s Commitment under any Loan Agreement.
“Unfunded Pro
Rata Share” means, as of any date, the ratio (expressed as a percentage) of the Unfunded Commitment of a Noteholder to the
aggregate of all Unfunded Commitments of all of the Noteholders, which is initially as set forth on Exhibit C attached hereto.
1.2 Definitions
Incorporated from Other Agreements. Capitalized terms not otherwise defined herein shall have the meanings ascribed to such terms
in the Loan Agreement.
Article II
THE
ADMINISTRATIVE AGENT AND SERVICER
2.1 Appointment
and Authorization.
(a) Each
Noteholder hereby irrevocably reaffirms and ratifies the appointment of Administrative Agent as the Administrative Agent under the Loan
Agreement.
(b) Subject
to Sections 2.2 and Article IX to the duty of the Administrative Agent to comply with the terms of the Loan Agreement,
each Noteholder authorizes Administrative Agent to take such actions on its behalf under the provisions of the Loan Agreement and the
Loan Documents and to exercise such powers and perform such duties as are expressly delegated to it by the terms of the Loan Agreement
and the Loan Documents, together with such powers as are reasonably incidental thereto, and each Noteholder agrees that it shall be bound
by the terms of the Loan Agreement, this Agreement and the Loan Documents and by any actions or decisions taken by Administrative Agent
under the Loan Agreement, this Agreement and/or the Loan Documents pursuant to their respective terms.
(c) Each
Noteholder expressly and irrevocably waives for itself and any Person claiming through or under any such Noteholder any and all rights
that it may have under Article 9 of the Uniform Commercial Code or the provisions of any similar law that would permit a Noteholder
to independently enforce any remedies against the pledged collateral or initiate any UCC foreclosure or other enforcement proceedings.
(d) Each
Noteholder and Administrative Agent hereby acknowledges and agrees that the rights and obligations of the Noteholders and Administrative
Agent hereunder shall be subject to Article IX and the terms and provisions of this Agreement, the Loan Agreement and the
Loan Documents.
2.2 Actions
Requiring Consent and Approval. The rights, duties and powers granted to Administrative Agent in this Agreement are intended by
the Noteholders to be exclusive and broad, subject to the duty of Administrative Agent to comply with Accepted Servicing Practices, the
Loan Documents and all applicable laws and the consent requirements expressed in this Section 2.2 in connection with any action
under the Loan Documents that is taken by Administrative Agent.
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(a) Administrative
Agent shall not take any of the following actions and shall not authorize Servicer to take any of the following actions, unless Administrative
Agent has first received the written consent of A-2 Noteholder (it being agreed that if the “Lender” is required to be reasonable
with respect to approving or consenting to a given action or item under the Loan Agreement or other Loan Documents, then the A-2 Noteholder
shall be reasonable in providing its consent or approval of such action or item hereunder):
(i) to
purchase the Senior Loan;
(ii) to
replace Senior Lender;
(iii) to
cure defaults under the Senior Loan; and
(iv) make
or authorize any Advance of Loan proceeds under Note A-2 (other than an Advance to pay interest on a Note, a Protective Advance, or the
September Loan Advance or Loan Increase Closing Fees expressly contemplated by the Sixth Amendment) without the prior written consent
of the A-2 Noteholder, provided that the A-2 Noteholder shall be subject to any applicable Defaulting Lender provisions in the Loan Agreement
if it fails to make Advances under Note A-2 to the extent that the conditions to such advance in the Loan Agreement are satisfied;
provided, however, that (x) unless A-1 Noteholder
and the A-2 Noteholder agree to any of the foregoing actions described in clauses (i), (ii) and (iii), A-2 Noteholder shall fund
the entire amount necessary to cause such action(s) and (y) if A-2 Noteholder does not timely consummate any of the foregoing
actions, A-1 Noteholder may unilaterally take such action if A-1 Noteholder funds the entire amount necessary to cause such action.
(b) Administrative
Agent shall not take any of the following actions and shall not authorize Servicer to take any of the following actions, unless Administrative
Agent has first received the written consent of all Noteholders (a “Unanimous Decision”) (it being agreed that
if the “Lender” is required to be reasonable with respect to approving or consenting to a given action or item under the Loan
Agreement or other Loan Documents, then the Noteholders shall be reasonable in providing their consent or approval of such action or item
hereunder):
(i) extend
or shorten the Maturity Date (except in accordance with the terms and conditions of any extension options contained in the Loan Documents)
or the date on which any monthly payment of principal and interest on the Loan is due and payable to Noteholders (except in accordance
with the terms and conditions of any extension options contained in the Loan Documents);
(ii) cross-default
the Loan with any other loan;
(iii) consent
to or waive any provision of the Loan Documents relating to the sale, transfer or encumbrance of any portion of the Property (or any interest
therein) or any direct or indirect ownership interest therein or any direct or indirect ownership interest in Borrower (or any interest
therein), except as may be expressly provided for in the Loan Documents without Lender’s consent, or amend, modify or waive any
provision of the Loan Agreement relating to the foregoing;
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(iv) release,
in whole or in part, the liability of any party for the payment of the indebtedness evidenced by the Notes or for the performance of any
monetary or material non-monetary obligations under the Loan Documents (including, without limitation, releasing any guarantor from any
obligations under any Loan Documents);
(v) determine
the amount of any credit bid to be made by Administrative Agent in any UCC foreclosure;
(vi) modify
the terms and provisions of any “Event of Default” under the Loan Documents;
(vii) (A) consent
to any additional indebtedness of Borrower (whether or not secured by all or any portion of the Property), except indebtedness that is
expressly permitted to be incurred by Borrower pursuant to the Loan Documents and/or trade payables and other indebtedness incurred by
Borrower in the ordinary course of its business or (B) amend, modify or waive any material provision of the Loan Agreement or other
Loan Documents relating to the foregoing;
(viii) except
as otherwise provided in Section 2.2(d) below, accelerate the Loan, sue on the Notes evidencing the Loan, exercise remedies
under the Pledge Agreements, including through a UCC foreclosure or other sale of the pledged collateral, or sue or make demand on any
guaranty or any environmental indemnity;
(ix) take
any action with respect to any environmental condition on the Property;
(x) accept,
receive or apply any prepayment of all or any portion of the principal of the Loan other than as is expressly permitted under the terms
of the Loan Documents;
(xi) agree
to any forbearance arrangements in connection with any monetary or material non-monetary Default or Event of Default of any Borrower Party
under the Loan Documents which contemplates a forbearance of more than thirty (30) consecutive days (provided that the foregoing shall
not prohibit Administrative Agent from entering into any pre-negotiation agreements with any Borrower Party);
(xii) approve
changes in zoning of the Property;
(xiii) approve
any Affiliate (as defined in the Loan Agreement) transactions that are otherwise prohibited by the terms of the Loan Agreement;
(xiv) solely
to the extent approval of Administrative Agent or Lender is required pursuant to the Loan Documents, approve any new Leases or any modifications,
terminations or assignments of any new or existing Leases;
(xv) waive
the payment of any late charge or interest accruing at the Default Rate (or reduce the rate of the Default Rate at which interest accrues)
for a period of more than five (5) consecutive days;
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(xvi) consent
to any material modification of any of the Senior Loan Documents or Mortgage Loan Documents (other than as described in Section 2.2(a) above);
(xvii) the
making of any Protective Advance;
(xviii) modify
the terms of the Intercreditor Agreement; or
(xix) exercise
any rights, consents or approvals under the Intercreditor Agreement (other than to purchase the Senior Loan and take the other actions
described in Section 2.2(a)).
(xx) agree
to reduce, waive, defer or forgive all or any portion of the principal amount of the Loan (including, without limitation, in connection
with the acceptance of a discounted payoff of the Loan) or any accrued non-default interest thereon, or enter into any other amendment,
forbearance, modification or waiver of the Loan Agreement or the other Loan Documents, which amendment, forbearance, modification or waiver
would reduce payment of the underlying principal amount or reduce the non-default interest rate;
(xxi) increase
the principal amount of the Loan, other than in connection with any Protective Advances made by Administrative Agent or any of the Noteholders
in accordance with this Agreement or the Loan Agreement;
(xxii) release,
substitute or subordinate, in whole or in part, any material portion of any collateral for the Loan to any lien that secures borrowed
money, except as may be expressly permitted in the Loan Documents without Lender’s consent;
(xxiii) consent
to or accept any cancellation or termination of any of the Loan Documents;
(xxiv) waive
any monetary Event of Default or material non-monetary Event of Default on the part of the Borrower or Guarantor;
(xxv) file
or consent to filing of any bankruptcy or insolvency petition with respect to the Borrower or any member or partner of the Borrower or
any guarantor or vote on any plan of reorganization, restructuring or similar event in any bankruptcy or similar proceeding of the Borrower
or any partner or member of the Borrower or any guarantor or take any other material action in any such proceeding (including buying claims
of third-party creditors); or
(xxvi) consent
to any Transfers other than a Transfer permitted under the Loan Agreement.
(c) In
addition to the required consents or approvals referred to in subsections (a) and (b) of this Section 2.2 above,
Administrative Agent may, but shall not be required to, in Administrative Agent’s sole discretion, at any time request instructions
or approval from the Required Noteholders with respect to any actions or approvals which, by the terms of this Agreement or of any of
the Loan Documents, Administrative Agent would otherwise be permitted or required to take or to grant without consent from the Required
Noteholders, and if such instructions are promptly requested, Administrative Agent shall be absolutely entitled to refrain from taking
any action or to withhold any consent or approval and shall not be under any liability whatsoever for refraining from taking any action
or withholding any consent or approval under any of the Loan Documents until it shall have received such instructions from the Required
Noteholders, in which case, Administrative Agent shall act upon such direction from the Required Noteholders, so long as such action (i) does
not violate applicable law or any provisions of the Loan Documents, and (ii) is reasonable under the circumstances and Administrative
Agent shall be relieved from the requirement to follow Accepted Servicing Practices to the extent it has received instructions from the
Required Noteholders. Without limiting the foregoing, no Noteholder shall have any right of action whatsoever against Administrative Agent
as a result of Administrative Agent acting or refraining from acting under this Agreement or any of the other Loan Documents in accordance
with the instructions of the Required Noteholders (except to the extent that Administrative Agent takes an action without the unanimous
consent of the Noteholders with respect to a Unanimous Decision).
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(d) If
an Event of Default occurs under any of the Loan Documents, unless Administrative Agent has received a contrary direction from the Required
Noteholders, Administrative Agent may, in accordance with Acceptable Servicing Practices, but without the consent of the Noteholders (except
to the extent Noteholder consent is expressly required under Section 2.2(a) or (b)) exercise or refrain from exercising
rights and remedies under the Loan Documents; provided, however, if (i) such Event of Default constitutes a monetary Event of Default
or a material non-monetary Event of Default, (ii) such Event of Default remains uncured for a period of more than ninety (90) consecutive
days and (iii) Administrative Agent has not otherwise received written direction from the Required Noteholders with respect to commencing
the enforcement of remedies or otherwise effectuating a consensual work-out of the Loan, then Administrative Agent shall, and is hereby
authorized by the Noteholders to, (x) if it has not already done so, accelerate the Loan and (y) commence and prosecute to completion
a UCC foreclosure of the pledged collateral and exercise of any other remedies it determines are appropriate in accordance with Accepted
Servicing Practices; provided, further, that in the event the Required Noteholders provide Administrative Agent with a contrary direction
at any time (including after Administrative Agent has commenced enforcing any remedies under the Loan Documents), then Administrative
Agent shall follow such direction. At all times from and after the occurrence of such Event of Default, Administrative Agent shall keep
the Noteholders fully apprised of all such actions and any actions thereafter taken or proposed to be taken by Administrative Agent shall
remain subject to the further consent and approval of the Required Noteholders as may be applicable pursuant to the applicable provisions
of this Section 2.2.
(e) Each
Noteholder acknowledges it has received and has approved the Loan Documents. Each Noteholder agrees that any action taken by Administrative
Agent that is permitted hereunder without the consent of the Noteholders (provided, such action is in accordance with Accepted Servicing
Practices), and the exercise by Administrative Agent of other powers as are reasonably incidental thereto, shall be authorized and binding
upon all of the Noteholders. All communications from Administrative Agent to the Noteholders requesting a Noteholder’s determination,
consent, approval or disapproval (i) shall be given in the form of a written notice to each Noteholder, but may be given by email
to the email address set forth on Exhibit B, (ii) shall be delivered in accordance with Section 8.4, (iii) shall
be accompanied by a reasonably detailed description of the matter or item as to which such determination, approval, consent or disapproval
is requested, or shall advise each Noteholder where such matter or item may be inspected, or shall otherwise describe the matter or issue
to be resolved, (iv) shall include, to the extent not previously provided to the Noteholders, all written materials (to the extent
necessary to make an informed decision) provided to the Administrative Agent with respect of the matter or issue to be resolved, and (v) shall
include Administrative Agent’s recommended course of action or determination in respect thereof. Each Noteholder shall reply promptly,
but in any event within the earlier of (x) five (5) Business Days after receipt of the request therefor from Administrative
Agent and (y) two (2) Business Days less than the period given to respond to such request under the Loan Documents, as the case
may be (the “Noteholder Reply Period”); provided, that the Administrative Agent may, in its sole discretion,
shorten the Noteholder Reply Period if the Loan Documents, any third party agreements (including, without limitation, insurance policies)
benefiting the Borrower, Guarantor or the Property, emergency or life safety issues affecting the Property or any Governmental Authority
with jurisdiction over the Borrower, Guarantor or Property impose or require a shorter time period to respond. Each request for Noteholder
consent under Section 2.2(a) or (b) or elsewhere in this Agreement shall be marked in bold lettering with
the following language: “NOTEHOLDER’S RESPONSE IS REQUIRED WITHIN [___] (__) BUSINESS DAYS AFTER RECEIPT OF THIS NOTICE IN
ACCORDANCE WITH THE TERMS OF THE CO-LENDER AGREEMENT,” with the blank in such language replaced by the applicable number. Unless
a Noteholder delivers written notice to Administrative Agent, within the Noteholder Reply Period, that the Noteholder objects to the recommendation
or determination of Administrative Agent, the Noteholder shall be deemed to have approved of or consented to such recommendation or determination.
With respect to Unanimous Decisions, Administrative Agent shall submit its recommendation or determination for approval of or consent
to such recommendation or determination to each Noteholder along with such request for Noteholder consent and upon receiving the required
approval or consent shall follow the course of action or determination recommended by Administrative Agent or such other course of action
recommended in a single instrument executed by the Required Noteholders or all of the Noteholders, as applicable, and each non-responding
Noteholder shall be deemed to have concurred with such recommended course of action.
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(f) Notwithstanding
anything to the contrary set forth in Section 2.2(a) or (b) above, Administrative Agent may grant waivers
of conditions to future funding draws or the release of escrows under the Loan Documents on a case-by-case basis in accordance with Accepted
Servicing Practices but only (x) with respect to future funding draws with respect to the Note A-2, with the consent of the A-2 Noteholder,
and (y) with respect to future funding draws with respect to Note A-3, with the consent of the A-3 Noteholder; provided, however,
that no waiver of any condition to an Advance under Note A-2 or release of escrows under the Loan Documents, whether or not such condition
is material, may be granted without the prior written consent of the A-2 Noteholder.
(g) Administrative
Agent shall forward to each Noteholder, within five (5) Business Days after receipt, any request for approval under Section 5.1.25
of the Loan Agreement together with all materials accompanying such request. Notwithstanding anything to the contrary in this Agreement
or the Loan Agreement, Administrative Agent shall not permit any approval of a new Lease or any amendment, modification, renewal or extension
of a Lease to be deemed given under Section 19.31 of the Loan Agreement (or any comparable deemed-approval provision) with respect
to any Lila Lease or any Major Lease without first obtaining the written consent of the Noteholders required under this Section 2.2.
The Noteholder Reply Period with respect to any such request shall be measured against the full period available to Administrative Agent
under Section 19.31 of the Loan Agreement, and not against any shortened second-request period.
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2.3 Liability
of Administrative Agent. Neither Administrative Agent, nor any of its directors, officers, employees or agents shall (a) be
liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement or any other Loan Document
or the transactions contemplated hereby or thereby (except to the extent resulting from its own gross negligence, fraud or willful misconduct),
or (b) be responsible in any manner to any of the Noteholders for any recital, statement, representation or warranty made by Borrower,
Guarantor, or any member, partner, shareholder or officer of Borrower or Guarantor, contained in any Loan Document, or in any certificate,
report, statement or other document referred to or provided for in, or received by the Administrative Agent or Servicer under or in connection
with, this Agreement or any other Loan Document, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement
or any other Loan Document (or the creation, perfection or priority of any lien, pledge or security interest therein), or for any failure
of Borrower, Guarantor or any other party to any Loan Document to perform its obligations hereunder or thereunder. Administrative Agent
shall not be under any obligation to any Noteholder to ascertain or to inquire as to the observance or performance of any of the terms
or agreements contained in, or conditions of, any Loan Document, or to inspect the properties, books or records of Borrower or Guarantor,
but this statement shall not be construed to limit Administrative Agent’s duties to deliver notices and information as and to the
extent provided in the other provisions of this Agreement. None of Administrative Agent or any of its directors, officers, employees or
agents shall be liable for any action taken or omitted to be taken by Servicer (except to the extent resulting solely from Administrative
Agent’s gross negligence, fraud or willful misconduct).
2.4 Reliance
by Administrative Agent. Administrative Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing,
resolution, notice, consent, certificate, affidavit, letter, facsimile or telephone message, statement or other document or conversation
believed by it in good faith to be genuine and correct and to have been signed, sent or made by the proper person or party, and upon advice
and statements of legal counsel (including legal counsel to Borrower), independent accountants and other experts selected by Administrative
Agent or Servicer, and upon advice and statements of legal counsel, independent accountants and other experts selected by Administrative
Agent. Administrative Agent shall be fully justified in failing or refusing to take any action or make any decision under this Agreement
or any other Loan Document unless it shall first receive such advice or concurrence of the Required Noteholders. Administrative Agent
shall in all cases be fully protected in acting, or in refraining from acting or making decisions, under this Agreement or any other Loan
Document in accordance with a request, consent or direction of the Required Noteholders, and such request and any action taken or decision
made or failure to act or make a decision pursuant thereto shall be binding upon all of the Noteholders, and Administrative Agent shall
in all cases not involving matters addressed in Section 2.2, be fully protected in acting, or in refraining from acting, under
this Agreement or any other Loan Document; provided same is taken in accordance with Accepted Servicing Practices.
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2.5 Representations
and Warranties.
(a) Administrative
Agent represents and warrants to the Noteholders that: (i) the execution, delivery and performance of this Agreement is within Administrative
Agent’s organizational powers, has been duly authorized by all necessary organizational action, and does not contravene in any material
respect Administrative Agent’s organizational documents or any law or contractual restriction binding upon Administrative Agent;
(ii) this Agreement is the legal, valid and binding obligation of Administrative Agent, enforceable against Administrative Agent
in accordance with the terms hereof, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors’ rights generally, and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law), and except that the enforcement of rights with respect
to indemnification and contribution obligations may be limited by applicable law; (iii) the individual or individuals executing this
Agreement and any and all documents contemplated hereby on behalf of Administrative Agent has or have the legal right and actual authority
to bind Administrative Agent to the terms and conditions contained in this Agreement and in such documents; (iv) Administrative Agent
is duly organized, validly existing, and in good standing under the laws of the jurisdiction of its formation and possesses all applicable
licenses and authorizations necessary to carry on its business as currently conducted, the failure of which to possess would materially
and adversely affect its performance under this Agreement; (v) all consents, approvals, authorizations, orders or filings of or with
any court or governmental agency or body, if any, required for the execution, delivery and performance of this Agreement by Administrative
Agent have been obtained or made; (vi) there is no action, suit, proceeding, arbitration or governmental investigation pending against
Administrative Agent, an adverse outcome of which would materially and adversely affect its performance under this Agreement; (vii) the
execution and delivery of this Agreement by Administrative Agent, and performance of, and compliance with, the terms of this Agreement
by Administrative Agent, will not violate Administrative Agent’s organizational documents or constitute a default (or an event which,
with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other
instrument to which Administrative Agent is a party or that is applicable to Administrative Agent or any of Administrative Agent’s
assets; (viii) Administrative Agent is not a Prohibited Person; or (ix) Administrative Agent has not dealt with any broker,
investment banker, agent or other person or entity that may be entitled to any commission or compensation in connection with the consummation
of any of the transactions contemplated hereby.
(b) Each
of the Noteholders represents and warrants to Administrative Agent and each of the other Noteholders, as to itself only, that: (i) the
execution, delivery and performance of this Agreement is within its organizational powers of such Noteholder, has been duly authorized
by all necessary organizational action by, or relating to such Noteholder, and does not contravene in any material respect its organizational
documents of such Noteholder or any law or contractual restriction binding upon such Noteholder; (ii) this Agreement is the legal,
valid and binding obligation of such Noteholder, enforceable against such Noteholder in accordance with the terms hereof, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’
rights generally, and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity
or at law), and except that the enforcement of rights with respect to indemnification and contribution obligations may be limited by applicable
law; (iii) the individual or individuals executing this Agreement and any and all documents contemplated hereby on behalf of such
Noteholder has or have the legal right and actual authority to bind such Noteholder to the terms and conditions contained in this Agreement
and in such documents; (iv) such Noteholder is duly organized, validly existing, and in good standing under the laws of the jurisdiction
of its formation and possesses all applicable licenses and authorizations necessary to carry on its business as currently conducted, the
failure of which to possess would materially and adversely affect its performance under this Agreement; (v) all consents, approvals,
authorizations, orders or filings of or with any court or governmental agency or body, if any, required for the execution, delivery and
performance of this Agreement by such Noteholder have been obtained or made; (vi) there is no action, suit, proceeding, arbitration
or governmental investigation pending against such Noteholder, an adverse outcome of which would materially and adversely affect its performance
under this Agreement; (vii) the execution and delivery of this Agreement by such Noteholder, and performance of, and compliance with,
the terms of this Agreement by such Noteholder, will not violate such Noteholder’s organizational documents or constitute a default
(or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material
agreement or other instrument to which such Noteholder is a party or that is applicable to such Noteholder or any of such Noteholder’s
assets; (viii) such Noteholder is not a Prohibited Person; and (ix) such Noteholder has not dealt with any broker, investment
banker, agent or other person or entity that may be entitled to any commission or compensation in connection with the consummation of
any of the transactions contemplated hereby other than Administrative Agent.
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2.6 Noteholder
Indemnification. The Noteholders shall indemnify and hold harmless upon demand Administrative Agent, Servicer, and their respective
directors, officers, employees and agents (to the extent not reimbursed by or on behalf of Borrower and without limiting the obligation
of Borrower to do so), pro rata (based on each Noteholder’s Pro Rata Share), from and against any and all actions, causes of action,
suits, losses, liabilities, damages and expenses, including reasonable and documented attorneys’ fees and expenses arising from
or relating to the exercise of rights and performance of obligations under the Loan Agreement, the other Loan Documents and this Agreement
(collectively, the “Indemnified Liabilities”); provided that no Noteholder shall be liable for any payment
to Administrative Agent of any portion of the Indemnified Liabilities to the extent such liability or payment resulted from Administrative
Agent’s gross negligence or fraud, as determined by a final, non-appealable judgment by a court of competent jurisdiction, and no
Noteholder shall be liable for any payment to Servicer of any portion of the Indemnified Liabilities to the extent such liability or payment
resulted from Servicer’s gross negligence or fraud, as determined by a final, non- appealable judgment by a court of competent jurisdiction.
Administrative Agent shall not be liable for, and shall be indemnified by the Noteholders from and against any and all actions, causes
of action, suits, losses, liabilities, damages and expenses, including reasonable and documented attorneys’ fees and actual and
documented out-of-pocket expenses arising from or relating to any delays in responding to the Borrower resulting from delays under this
Agreement in obtaining direction or consent from the Required Noteholders to act under this Agreement. Without limitation of the foregoing,
and to the extent that the Administrative Agent or Servicer, as applicable, is not reimbursed for such expenses by or on behalf of Borrower,
each Noteholder shall reimburse Administrative Agent or Servicer, as applicable, upon demand for its ratable share (based on each Noteholder’s
Pro Rata Share) of any reasonable and customary out-of-pocket expenses actually incurred by the Administrative Agent or Servicer in connection
with (a) the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations,
legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, any other Loan Document, or any other
document contemplated by or referred to therein, and (b) the administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under this Agreement or any
other document contemplated by or referred to herein. The undertakings in this Section shall survive repayment of the Loan, cancellation
of the Notes, any UCC foreclosure under, or modification, release or discharge of, any or all of the Loan Documents, termination of this
Agreement, and the resignation or replacement of Administrative Agent or Servicer.
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2.7 Expenses
of Noteholders. Notwithstanding anything to the contrary contained in this Agreement, and except with respect to the Advance of
Loan proceeds funded on the date hereof in connection with the closing of the Loan Increase (the “Closing Date Advance”),
each Noteholder shall be solely responsible for, and shall bear, the fees and expenses of its own legal counsel, financial advisors and
other professionals retained by such Noteholder in connection with the Loan, the Loan Increase, the Loan Documents and the transactions
contemplated hereby and thereby, and no such fees or expenses shall constitute Indemnified Liabilities or be subject to reimbursement
by, or allocation among, the other Noteholders. The fees and expenses of legal counsel, financial advisors and other professionals retained
by the Noteholders that are paid from the proceeds of the Closing Date Advance shall be funded by A-2 Noteholder and A-3 Noteholder based
on each such Noteholder’s Pro Rata Share (Loan Increase). From and after the date hereof, no Advance of Loan proceeds shall be applied
to pay the fees or expenses of counsel or other professionals retained by any Noteholder other than the Noteholder against whose Note
such Advance is funded, and no such fees or expenses shall be charged against, allocated to or reimbursed from any other Noteholder’s
Note, Commitment or share of distributions hereunder. From and after the date hereof, to the extent Borrower pays to Administrative Agent
a single aggregate amount on account of the fees and expenses of counsel to the Administrative Agent and the Noteholders, Administrative
Agent shall allocate and distribute such payment to the Administrative Agent or the Noteholder, as applicable, whose counsel incurred
such fees and expenses and shall not distribute any portion thereof to any other Noteholder. Nothing in this Section 2.7 shall
limit the obligation of the Noteholders to reimburse Administrative Agent or Servicer under Section 2.6 for out-of-pocket
expenses incurred by Administrative Agent or Servicer in such capacity.
2.8 Administrative
Agent, Servicer, Noteholders and Affiliates in Individual Capacity. Administrative Agent, Servicer, Noteholders and their respective
Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally
engage in any kind of banking, trust, financial advisory, underwriting or other business with Guarantor or any member, partner, shareholder,
or officer of Borrower or Guarantor, as though Administrative Agent were not Administrative Agent hereunder, Servicer were not Servicer
hereunder and the Noteholders were not Noteholders hereunder, as applicable, and without notice to or consent of the other parties hereto.
Each party hereto acknowledges that, pursuant to such activities, Administrative Agent, Servicer, Noteholders and their respective Affiliates
may receive information regarding Borrower or Guarantor (including information that may be subject to confidentiality obligations in favor
of Borrower or Guarantor) and acknowledge that Administrative Agent, the Noteholders and Servicer shall be under no obligation to provide
such information to each other. With respect to their Notes (if any), Administrative Agent, Servicer, and their Affiliates shall have
the same rights and powers under this Agreement as any other Noteholder and may exercise the same as though Administrative Agent and Servicer
were not the Administrative Agent and Servicer, respectively, and the terms “Noteholder” and “Noteholders” shall
include Administrative Agent, Servicer and their respective Affiliates, to the extent applicable, in their individual capacities.
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2.9 Successor
Administrative Agent and Servicer. Administrative Agent may resign as Administrative Agent upon thirty (30) days’ prior
written notice to the Noteholders. Additionally, and subject to Section 9.5(e), the Administrative Agent may be removed as
Administrative Agent hereunder and under the Loan Documents at any time by the Required Noteholders (determined without taking into account
the Commitments and the vote of any Noteholder who is then acting as Administrative Agent or is an Affiliate of Administrative Agent)
upon thirty (30) days’ prior written notice (the “Removal Notice”); provided, however, that Administrative
Agent, in the event of a material breach of its duties hereunder, shall have been provided with (a) written notice of any such material
breach and (b) thirty (30) days to cure such material breach and shall have failed to cure such material breach within such thirty
(30) day period prior to the Required Noteholders sending Administrative Agent the Removal Notice. If Administrative Agent resigns or
is removed under this Agreement, then the Required Noteholders shall appoint, from among the Noteholders, a successor Administrative Agent
for the Noteholders. Upon the acceptance of its appointment as successor Administrative Agent hereunder, such successor Administrative
Agent shall succeed to all the rights, powers and duties of the retiring Administrative Agent, and the term “Administrative Agent”
shall mean such successor Administrative Agent, and the retiring Administrative Agent’s appointment, powers and duties as Administrative
Agent shall be terminated, other than any liabilities accrued prior to the date of termination. After any retiring Administrative Agent’s
resignation or removal hereunder as Administrative Agent, the provisions of Section 2.6 shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Administrative Agent under this Agreement. The Noteholders agree that, subject
to the provisos below, if Initial Administrative Agent either resigns as Administrative Agent or is removed as Administrative Agent, Initial
Administrative Agent shall have the unilateral right to terminate any servicing agreement entered into by Initial Administrative Agent
as it relates to the Loan. All Servicing Fees will be split pro rata by the Noteholders based on their respective Pro Rata Shares.
2.10 Additional
Administrative Agent Duties. Administrative Agent shall promptly send (or shall use commercially reasonable efforts to cause Servicer
promptly to send) to each Noteholder at their respective address set forth on Exhibit B: (i) copies of all financial
statements, rent rolls, reports and budgets of the Borrower and Guarantor received by Administrative Agent under the terms of the Loan
Agreement or the Guaranty; (ii) any written estoppel or certificate received by Administrative Agent pursuant to the Loan Agreement;
(iii) notice of any Event of Default that Administrative Agent delivers to the Borrower; (iv) copies of all written requests
for consent, waiver or approval from Borrower or Guarantor; and (v) copies of all requests for advances of further fundings of Loan
Proceeds. Notwithstanding the foregoing provisions of this Section 2.10, no failure on Administrative Agent’s part to
furnish any such documents shall result in any liability on Administrative Agent’s part in the absence of gross negligence, fraud
or willful misconduct. In addition, Administrative Agent shall make available to each Noteholder, promptly upon demand, such other reports
and information reasonably requested in writing by such Noteholders and in Administrative Agent’s or Servicer’s possession
or reasonably obtainable by Administrative Agent. Except for notices, reports and other documents expressly herein required to be furnished
to the Noteholders by Administrative Agent, Administrative Agent shall not have any duty or responsibility to provide any Noteholder with
any credit or other information concerning the business, prospects, operations, property, financial or other condition or creditworthiness
of Borrower or Guarantor which may come into the possession of the Administrative Agent, unless obtained by Administrative Agent in its
capacity as Administrative Agent hereunder and under the Loan Agreement.
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2.11 Bankruptcy
of Borrower; Return of Funds. This Agreement shall be applicable both before and after the commencement, whether voluntary or
involuntary, of any Bankruptcy Proceeding by or against Borrower, and all references herein to Mortgage Borrower shall be deemed to apply
to the fee title owner of the Property as a debtor-in-possession and to any trustee in bankruptcy for the estate of the fee title owner
of the Property. Anything in the Loan Documents to the contrary notwithstanding, in the event of any distribution, division or application,
in whole or in part, voluntary or involuntary, by operation of law or otherwise, of the assets of Borrower or the proceeds thereof, to
or for the benefit of any of Borrower’s creditors arising by reason of a Bankruptcy Proceeding or after the occurrence of an Event
of Default, then all amounts due the Noteholders shall be paid in accordance with Article IV of this Agreement. If a court of competent
jurisdiction orders, at any time, that any amount received or collected in respect of the Loan must, pursuant to any insolvency, bankruptcy,
fraudulent conveyance, preference or similar law, be returned to the Borrower, or paid to any other Person, then, notwithstanding any
other provision of this Agreement to the contrary, Administrative Agent shall not be required to distribute any portion thereof to any
Noteholder (unless otherwise so directed by such court), and, to the extent necessary to comply with such court order, each applicable
Noteholder will promptly on demand (which demand shall include a copy of such court order and a statement containing the amount Administrative
Agent is seeking to be returned (exclusive of interest, which shall be the responsibility of the Noteholder to calculate)) by Administrative
Agent repay to Administrative Agent any portion of any such amounts that Administrative Agent shall have theretofore distributed to such
Noteholder, together with interest thereon, which Administrative Agent shall have been required to pay to Borrower, or such other Person.
If, for any reason, Administrative Agent makes any payment to any Noteholder before Administrative Agent has received the corresponding
payment (it being understood that Administrative Agent is under no obligation to do so), and Administrative Agent does not receive the
corresponding payment within one (1) Business Day of its prior payment to the applicable Noteholder, the applicable Noteholder will,
at Administrative Agent’s request, promptly and, in any event, within three (3) Business Days of Administrative Agent’s
request, return such payment to the Administrative Agent (together with interest on such payment paid at the interest rate actually received
by such Noteholder for such advance for each day from the making of such payment to the Noteholder until such amount is returned to Administrative
Agent). Each Noteholder agrees that if at any time it shall receive from any sources whatsoever any payment on account of the Loan in
excess of its distributable share thereof, it will promptly after written notice from Administrative Agent remit such excess to Administrative
Agent. Upon prior written notice, Administrative Agent shall have the right to offset such amounts against any future payments due to
the applicable Noteholder under the Loan; provided, that Administrative Agent shall have no right to deduct or set-off any amounts
which may be owed on account of other dealings between Administrative Agent and any Noteholder which are unrelated to the Loan or this
Agreement; and provided, further, that each such Noteholder’s obligations under this Section 2.11 are separate and distinct
obligations from one another and in no event shall Administrative Agent enforce the obligations of any Noteholder against any other Noteholder.
Each Noteholder’s obligations under this Section 2.11 constitute absolute, unconditional and continuing obligations.
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Article III
REPLACEMENT
NOTES
3.1 Replacement
Notes. In connection with any sale or assignment of a Note or a portion thereof or an interest therein, the Noteholder effecting
such Transfer may request Administrative Agent to exercise the Lender’s rights under the Loan Documents to cause Borrower to replace,
sever and/or split such Note, and to issue in lieu thereof one or more replacement notes (each, a “Replacement Note”
and, collectively, the “Replacement Notes”), which Replacement Note or Replacement Notes, as applicable, shall
have an aggregate principal balance equal to that of the Note being relinquished and shall entitle the respective holders thereof to the
same aggregate rights as the subject Noteholder that submitted such Note. Once issued, and provided that the applicable assigning Noteholder
shall have entered into an assignment and assumption agreement, in form and substance reasonably acceptable to Administrative Agent, with
its proposed assignee, then each of the Replacement Notes shall be deemed to be a Note under this Agreement, and the holder(s) of
such Replacement Notes shall be deemed to be Noteholders under this Agreement.
Article IV
PRIORITY;
DISTRIBUTIONS
4.1 Priority.
Each Noteholder hereby acknowledges and agrees that each Note hereunder shall, subject to the terms and provisions of Section 4.2
hereof, be of equal priority and pari passu with the other Note(s), and no Note shall have any payment priority or preference over the
other Note(s).
4.2 Distributions.
Except as provided in this Article IV, all payments received by Administrative Agent or Servicer with respect to the Loan, including,
without limitation, voluntary payments, voluntary prepayments, interest, principal, proceeds from any Interest Rate Cap Agreement, any
Proceeds not being applied for the Restoration of the Property in accordance with the Loan Documents and any other amounts payable to
the Administrative Agent or for the benefit of the Lender pursuant to the Loan Agreement, shall be promptly distributed by the Administrative
Agent or Servicer, but no later than five (5) Business Days after the later to occur of (a) receipt thereof (and proper identification
of funds) and (b) the Payment Date under the Loan Agreement (provided, however, that any principal prepayments shall
always be distributed no later than two (2) Business Days after the receipt thereof), pursuant to the wiring instructions provided
by each Noteholder in writing to Administrative Agent (as from time to time may be updated by notice in writing). All payments of Origination
Fees, Underwriting Fees, Loan Increase Additional Interest and Loan Increase Closing Fees shall be paid to A-2 Noteholder and Note A-3
Noteholder each in an amount equal to such Noteholder’s Pro Rata Share (Loan Increase). All payments of the Extension Fee for the
First Extension Option and Additional Interest under the Loan shall be paid to A-1 Noteholder only. The Exit Fee shall be paid to the
Noteholders in an amount equal to such Noteholder’s Pro Rata Share thereof. The distribution rights described above are listed on
Schedule 1 attached hereto.
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4.3 Priority
of Payments. All other payments under the Loan shall be paid in the following order and priority, and, in each case, without duplication:
(a) first,
to Administrative Agent in the amount of any unreimbursed reasonable out-of-pocket costs and expenses incurred by Administrative Agent
(i) in servicing and administering the Loan (other than the Servicing Fee) and (ii) pursuing remedies under the Loan Documents,
including any such costs and expenses which are reimbursable by Borrower pursuant to the terms of the Loan Documents which remain unpaid;
(b) second,
to Administrative Agent for the payment to Servicer the amount of any Servicing Fees owed to any Servicer(s) engaged by the Administrative
Agent in connection with the servicing of the Loan;
(c) third,
to the Noteholders that made Protective Advances (including any deficiency amount under Section 6.1(a) or Section 7.2),
in the amount of any such Protective Advances, made by each such Noteholder on a pro rata and pari passu basis (based on a ratio where
the numerator is the amount so advanced by any such Noteholder which has made such a Protective Advance and the denominator is the aggregate
of all Protective Advances made by the all of the Noteholders, together with all accrued and unpaid interest at the Default Rate with
respect to such Protective Advances, with such Protective Advances being reimbursed in chronological order (with the first Protective
Advance, and interest thereon to be reimbursed first);
(d) fourth,
to the Noteholders, pro rata based on its Repayment Pro Rata Share in an amount equal to the accrued and unpaid interest on each Noteholder’s
Note Principal Balance at the Applicable Rate;
(e) fifth,
with respect to any payments received on account of the outstanding principal balance of the Loan (including any capitalized interest
and fees), whether scheduled or extraordinary (including any payment of principal payable on the Maturity Date and any prepayment amounts)
to each Noteholder an amount equal to such Noteholder’s respective Repayment Pro Rata Share;
(f) sixth,
to each Noteholder, without duplication of any amounts previously paid pursuant to Section 4.2, an amount equal to any fees
(including, without limitation, any extension fees), premium, default interest, late charges and other excess amounts owed by the Borrower,
up to the amount actually owed to such Noteholder, based on its Repayment Pro Rata Share (but only to the extent not duplicative of any
amounts previously paid to each such Noteholder pursuant to any of clauses (a) through (g) of this Section 4.3);
and
(g) lastly,
any other amounts from any source whatsoever (including proceeds from a sale of the Property), to each Noteholder in a ratio of all amounts
funded by such Noteholder on account of their respective Commitments to all amounts so funded by all Noteholders.
4.4 Other
Distributions. In the event that any Noteholder incurs any loss, cost or other expense to which it is entitled to reimbursement
or indemnification under the Loan Agreement (“Costs”), which Costs have been incurred in accordance with the
applicable provisions of the Loan Agreement, such Noteholder shall promptly notify Administrative Agent that it has incurred such Costs.
Administrative Agent shall then apprise Borrower that such Noteholder has incurred any Costs, and, on behalf of such Noteholder, demand
reimbursement or indemnification thereof from Borrower. Notwithstanding anything to the contrary contained in this Article IV, in
the event that any Noteholder incurs any Costs and Borrower disburses the amount of such Costs to Administrative Agent on behalf of such
Noteholder, Administrative Agent shall then disburse any such amount directly to such Noteholder promptly upon receipt of any such amount
from Borrower, it being acknowledged and agreed that such amounts shall be paid pursuant to this Section 4.4 and shall not
be disbursed pursuant to Section 4.3 hereunder.
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Article V
DISTRIBUTIONS
AFTER WORKOUTS
5.1 Distributions
after Workouts. If the terms or conditions of the Loan are modified, waived or amended in accordance with this Agreement such
that (a) the principal balance is decreased, (b) the interest rate is reduced, (c) payments of interest or principal are
deferred, reduced, or waived, or (d) any other adjustment is made to any of the payment terms of the Loan, the economic effect of
such waivers, amendments and modifications shall be borne by the Noteholders on a pari passu and pro rata basis in accordance with their
Repayment Pro Rata Shares.
Article VI
PROTECTIVE
ADVANCES
6.1 Protective
Advances.
(a) Subject
to the provisions of Section 2.2 above, if, Administrative Agent determines that it is necessary or desirable to make a Protective
Advance, then Administrative Agent shall give written notice thereof to the Noteholder(s), which notice shall set forth the aggregate
amount of such Protective Advance, the portion thereof payable by each Noteholder (which shall be determined based on each of the Noteholder’s
respective Pro Rata Shares) and the date (which shall not be less than five (5) Business Days after delivery of such notice) on which
each Noteholder shall be required to remit its Pro Rata Share thereof to Administrative Agent (or Servicer, if so directed by Administrative
Agent), and shall describe in reasonable detail the purpose(s) of such Protective Advance. Neither Administrative Agent (in its capacity
as Administrative Agent) nor Servicer shall be required to fund any Protective Advances out of its own funds. If any Noteholder fails
to fund its Pro Rata Share of a Protective Advance, the other Noteholders may fund the deficiency. If more than one Noteholder desires
to fund the deficiency, they may do so pro rata based on their respective Commitments, excluding the Noteholder that failed to fund. The
Noteholder(s) that fund any deficiency hereunder shall be entitled to the return of such funding under Section 4.3(c).
(b) Upon
receipt of the entire amount of any Protective Advance from the Noteholders, Administrative Agent or Servicer shall take all commercially
reasonable action to remedy the event for which the Protective Advance is being made on behalf of the Noteholders.
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(c) All
Protective Advances shall be reimbursed to the Noteholder(s) which made such Protective Advances in accordance with the applicable
provisions of Section 4.2 and shall not change the Pro Rata Share of any Noteholder.
Article VII
SUBSEQUENT
FUNDING
7.1 Subsequent
Funding.
(a) Note
A-1 is fully funded and therefore A-1 Noteholder shall have no further obligations to make advances under the Loan.
(b) The
Loan Increase Closing Fees due to each of A-2 Noteholder and A-3 Noteholder shall be funded in draws against A-2 Noteholder and A-3 Noteholder
based their Pro Rata Share (Loan Increase), including the fees and expenses of legal counsel, financial advisors and other professionals
retained by the Noteholders that are paid from the proceeds of the Closing Date Advance, except that the Origination Fee, Underwriting
Fee and any other fees, costs and expenses attributable to a Noteholder (other than such fees and expenses paid from the proceeds of the
Closing Date Advance), including, without limitation, the fees, costs and expenses of counsel or other professionals retained by any Noteholder
in connection with the Loan after the date hereof shall be funded against such Noteholder’s Note rather than pro rata.
(c) Advances
to pay interest on the Mortgage Loan shall be funded by A-2 Noteholder and A-3 Noteholder based on their Pro Rata Share (Loan Increase).
Advances to pay interest on Note A-2 shall be funded A-2 Noteholder. Advances to pay interest on Note A-1 and Note A-3 shall be funded
by A-3 Noteholder.
(d) A-3
Noteholder shall make advances under Note A-3 for the purpose of payment of the Extension Fee for the First Extension Option
(e) A-2
Noteholder shall make advances under Note A-2 for the purpose of payment all amounts other than the amounts described in Section 7.1(a),
(b), (c) and (d) when Administrative Agent or its agents or advisors on its behalf, shall (i) advise
A-2 Noteholder of each request received by Administrative Agent for an advance under the Loan Agreement for non-interest amounts within
two (2) Business Days of receipt thereof, and (ii) on such date provide A-2 Noteholder with prior notice of the date upon which
such advance is to occur hereunder (which shall in no event be earlier than the final date on which such funding is required to occur
pursuant to the applicable provisions of the Loan Agreement), together with a copy of the Borrower’s request for the advance (if
so received by Administrative Agent) and a confirmation that Administrative Agent has determined, in accordance with the Loan Agreement,
that all conditions to such advance have been satisfied. Administrative Agent or its agents or advisors shall promptly furnish to A-2
Noteholder a copy of the supporting documents and instruments furnished by Borrower in connection with its request. A-2 Noteholder, to
the extent of its Unfunded Commitment, hereby agrees that it is obligated to make such advance by payment thereof to Administrative Agent
not later than 12:00 p.m. (New York time) on the date established by Administrative Agent as the Business Day immediately prior to
the date that such advance is to be made to Borrower under the Loan Documents. Notwithstanding anything to the contrary in this Agreement
or the Loan Documents, in no event shall the A-2 Noteholder be required to make any advance under Note A-2 unless all conditions to the
Advance have been satisfied or waived by the A-2 Noteholder or the A-2 Noteholder has otherwise approved such advance and in no event
shall the Note A-3 Noteholder be required to make any advance under Note A-3 unless all conditions to the Advance have been satisfied
or waived by the A-3 Noteholder or the A-3 Noteholder has otherwise approved such advance. provided that each of the A-2 Noteholder and
the A-3 Noteholder shall be subject to any applicable Defaulting Lender provisions in the Loan Agreement if it fails to make Advances
under Note A-2 or Note A-3, as applicable, to the extent that the conditions to such advance in the Loan Agreement are satisfied.
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(f) For
purposes of this Section 7.1, Administrative Agent or its agents or advisors shall provide each Noteholder with any notices
or other communications required pursuant to this Section 7.1 via email at the email addresses provided by each Noteholder
as set forth on Exhibit B hereto. Each Noteholder agrees to use commercially reasonable efforts to acknowledge receipt of
such email by reply email to Administrative Agent, and Administrative Agent agrees that, if a Noteholder does not timely so acknowledge
receipt, Administrative Agent will use commercially reasonable efforts to send a subsequent email request to such Noteholder and to contact
such Noteholder by telephone at one or more of the phone numbers set forth on Exhibit B hereto. Further, Administrative Agent
(or its advisors or agents) may use, for purposes of providing supporting documentation or other materials or communications under this
Section 7.1 (but not a notice or request for an advance), Intralinks or other program used for syndication of the Loan.
(g) The
Noteholders’ obligations for advances is listed on Schedule 1 attached hereto.
7.2 Intercreditor
Payments. Administrative Agent or its agents or advisors on its behalf, shall (i) advise each Noteholder of each request
by Administrative Agent for a payment to cure a default under the Senior Loan or to purchase the Senior Loan, and (ii) if approved
under Section 2.2(a), on such date provide each Noteholder with prior notice of the date upon which such payment is to occur
hereunder. Except as provided in Section 2.2(a), each Noteholder, to the extent of its Unfunded Commitment, hereby agrees
that it is obligated to advance its Pro Rata Share of such payment by payment thereof to Administrative Agent not later than 12:00 p.m. (New
York time) on the date established by Administrative Agent as the Business Day immediately prior to the date that such payment is to be
made under the Intercreditor Agreement. If any Noteholder fails to fund its Pro Rata Share of a payment to cure a default under the Senior
Loan if required to do so, the other Noteholders may fund the deficiency. If more than one Noteholder desires to fund the deficiency,
they may do so pro rata based on their respective Commitments, excluding the Noteholder that failed to fund. The Noteholder(s) that
fund any deficiency with respect to a cure of the Senior Loan shall be entitled to the return of such funding under Section 4.3(c).
If a Noteholder or Noteholders purchase the Senior Loan, they shall own and hold the Senior Loan in the same percentages that they funded
the purchase price for the Loan.
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Article VIII
MISCELLANEOUS
8.1 Terms
of Agreement. This Agreement shall remain in full force and effect unless and until the Loan is repaid in full or Administrative
Agent notifies all Noteholders that it has determined that all amounts that can be recovered with respect to the Loan and the collateral,
through the exercise of commercially reasonable efforts on a cost-effective basis, have been recovered. The terms and conditions of this
Agreement by which Administrative Agent and Servicer are indemnified by the Noteholders shall survive termination of the Agreement.
8.2 Modifications.
Notwithstanding anything contained herein to the contrary, this Agreement shall not be modified, cancelled or terminated except by an
instrument in writing signed by the parties hereto.
8.3 Successors
and Assigns. This Agreement shall inure to the benefit of and be binding on the parties hereto and each of their respective successors
and permitted assigns, provided that none of Borrower, Guarantor or any of their respective Affiliates shall ever become a Noteholder
nor a beneficiary hereunder.
8.4 Notices.
Except as otherwise expressly provided herein, all notices, requests and demands to or upon the respective parties hereto to be effective
shall be in writing, and shall be deemed to have been duly given or made if made by hand or by nationally recognized overnight courier
service, in each case when delivered or when delivery is refused, and addressed to the address specified on Exhibit B hereto
as updated and distributed to all parties hereto from time to time in accordance with these notice provisions.
8.5 Prior
Agreements. This Agreement contains the entire agreement of the parties hereto and thereto in respect of the transactions contemplated
hereby, and all prior agreements, understandings and negotiations among or between such parties, whether oral or written, are superseded
by the terms of this Agreement.
8.6 Conflict;
Construction of Documents. As between or among the parties hereto, the event of any conflict between the provisions of this Agreement
and any of the Loan Documents, as between or among the parties hereto, the provisions of this Agreement shall control. Without limiting
the foregoing, as between or among the parties hereto, the authority of the Directing Mezzanine Lender under the Intercreditor Agreement
is exercised subject to this Agreement, and the Administrative Agent shall not cause or permit the Directing Mezzanine Lender to exercise,
or to refrain from exercising, any right, consent or approval under the Intercreditor Agreement except in accordance with the consent
and approval requirements of Section 2.2; provided that nothing herein shall be construed to limit the rights of any Noteholder
under Article IX. The parties hereto acknowledge that each such party is represented by separate legal counsel in connection
with the negotiation and drafting of this Agreement, and that this Agreement shall not be subject to the principle of construing its meaning
against the party that drafted it.
8.7 Governing
Law. THIS AGREEMENT WAS NEGOTIATED AND MADE BY THE PARTIES HERETO IN THE STATE OF NEW YORK, WHICH STATE THE PARTIES AGREE HAS
A SUBSTANTIAL RELATIONSHIP TO THE PARTIES AND TO THE UNDERLYING TRANSACTION EMBODIED HEREBY. THE PARTIES HERETO HEREBY AGREE THAT IN ALL
RESPECTS, INCLUDING MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS AGREEMENT AND THE OBLIGATIONS ARISING HEREUNDER SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH
STATE AND ANY APPLICABLE LAW OF THE UNITED STATES OF AMERICA. EACH OF THE PARTIES HERETO HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES
ANY CLAIM TO ASSERT THAT THE LAW OF ANY OTHER JURISDICTION GOVERNS THIS AGREEMENT, AND THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK PURSUANT TO SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
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8.8 Submission
to Jurisdiction. ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST ANY PARTY HERETO ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL
BE INSTITUTED IN ANY FEDERAL OR STATE COURT IN NEW YORK COUNTY, NEW YORK, AND EACH PARTY HEREBY WAIVES ANY OBJECTION WHICH IT MAY NOW
OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING, AND EACH PARTY HERETO HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF ANY SUCH COURT IN ANY SUIT, ACTION OR PROCEEDING.
8.9 WAIVER
OF JURY TRIAL. EACH PARTY HERETO HEREBY AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY AND WAIVES ANY
RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER MAY EXIST WITH REGARD TO THIS AGREEMENT, OR
ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND
VOLUNTARILY BY EACH OF THE PARTIES HERETO AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT
TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. EACH PARTY HERETO IS HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS
CONCLUSIVE EVIDENCE OF THIS WAIVER BY THE OTHER PARTIES.
8.10 Counterparts.
This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be an original, but all
of which shall together constitute one and the same instrument. The words “execution,” signed,” “signature,”
and words of like import in this Agreement or in any other certificate, agreement or document related to this Agreement shall include
images of manually executed signatures transmitted by facsimile or other electronic format (including, without limitation, “pdf”,
“tif” or “jpg”) and other electronic signatures (including, without limitation, DocuSign and AdobeSign). The use
of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent,
communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed
signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law, including the Federal Electronic
Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act and any other applicable law,
including, without limitation, any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code. The parties
hereby waive any defenses to the enforcement of the terms of this Agreement based on the form of the signature and hereby agree that such
electronically transmitted or signed signatures shall be conclusive proof, admissible in judicial proceedings, of the parties’ execution
of this Agreement.
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8.11 Third-Party
Beneficiaries. No Person other than a party to this Agreement (and any Noteholder that becomes a party to this Agreement after
the date hereof) shall have any rights with respect to the enforcement of any of the rights or obligations hereunder.
8.12 A-2
Noteholder Right of First Offer. Concurrently herewith, A-2 Noteholder or an affiliate of A-2 Noteholder may be entering into
an agreement with Mortgage Borrower granting A-2 Noteholder or an affiliate a right to purchase, finance or refinance all or any portion
of the Property upon terms and conditions set forth in such agreement. Notwithstanding anything in this Agreement or any other document
to the contrary, any exercise by A-2 Noteholder or its affiliate of any rights under such agreement shall be subject to the prior consent
or approval of the Noteholders to the extent such consent or approval is required under the Mezzanine Loan Documents and no waiver or
impairment of any such consent or approval rights shall be deemed to have occurred by reason of the Loan Increase Amendment or the amendment
to the Intercreditor Agreement entered into concurrently herewith.
Article IX
REIT
PROTECTIONS
9.1 Definitions.
As used in this Article IX:
(a) “Code”
means the Internal Revenue Code of 1986, as amended.
(b) “REIT”
means a real estate investment trust within the meaning of Sections 856 through 860 of the Code
(c) “REIT
Noteholder” means any Noteholder that is, or that is directly or indirectly owned by, a REIT, including IIP Life Science Investments
II LLC (“IIP”), the Initial Note A-2 Holder, and Innovative Industrial Properties, Inc.
(d) “Mezzanine
Loan Safe Harbor” means the safe harbor for mezzanine loans set forth in Revenue Procedure 2003-65 (and any successor or supplementary
guidance).
9.2 Safe
Harbor Acknowledgment.
(a) The
Noteholders acknowledge and agree that a REIT Noteholder intends that the Loan qualify for the Mezzanine Loan Safe Harbor, and that the
Loan is structured, and shall be administered by the Administrative Agent and the Servicer, consistent with the Mezzanine Loan Safe Harbor,
including that: (a) the Loan is nonrecourse to Borrower except as expressly set forth in the Loan Documents, including, without limitation,
the Guaranties and the Environmental Indemnity, provided, however that, as more particularly set forth in Section 19(f) of the
Sixth Amendment the Carry Guaranty does not guarantee, apply to, secure or otherwise constitute or create recourse for any IIP Lender
Obligations and guarantees solely the Non-IIP Lender Obligation and is secured solely by a first priority security interest in the Collateral
consisting of the pledged equity interests and proceeds thereof under the Pledge Agreements and solely with respect to the Non-IIP Lender
Obligations, the Hypothec (it being acknowledged and agreed, as more particularly set forth in Section 19(e) of the Sixth Amendment,
that the Hypothec does not secure the IIP Lender Obligations and that no IIP Lender has, holds or is entitled to the benefit of any hypothec,
security interest or other lien in respect of the property charged by the Hypothec); (b) Administrative Agent, for the benefit of
the Noteholders, holds a first priority security interest in the Collateral pledged under the Pledge Agreements; and (iv) in no event
shall Administrative Agent or any Noteholder have, hold or be granted any mortgage, deed of trust, lien on, security interest in, or direct
or indirect ownership interest in, the Property (other than, solely in the case of the Non-IIP Lenders, the materials described in the
Hypothec) or any other real property owned by the Mortgage Borrower, other than indirectly through succession to the pledged limited liability
company interests upon an exercise of remedies against the Collateral in accordance with Section 20 of the Sixth Amendment.
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(b) Notwithstanding
anything to the contrary in the Carry Guaranty, the Loan Agreement or any other Loan Document, the parties acknowledge and agree that:
(i) the Carry Guaranty guarantees solely the Non-IIP Lender Obligations and does not guarantee, apply to, secure or otherwise constitute
or create recourse for any IIP Lender Obligations, including any Debt or other obligations evidenced by or arising in respect of Note
A-2; (ii) no IIP Lender is or shall be a beneficiary of, or entitled to enforce, direct or receive any payment or other benefit under,
the Carry Guaranty, and no amount paid or payable under the Carry Guaranty shall be applied to or on account of any IIP Lender Obligations;
(iii) the exclusion set forth in Section 19(f) of the Sixth Amendment is intended to ensure that the Carry Guaranty does
not cause the Loan (or any portion thereof held by, or owing to, IPP) to be treated as other than nonrecourse for purposes of the
Mezzanine Loan Safe Harbor, and nothing in the Carry Guaranty shall be construed to render any IIP Lender Obligation recourse to Borrower
or Guarantor; and (iv) nothing in this Section shall reduce, impair, release or otherwise affect the obligations of Guarantor
under the Carry Guaranty with respect to the Non-IIP Lender Obligations, all of which remain in full force and effect in accordance with
their terms. For the avoidance of doubt, this Section shall control over any conflicting provision of the Carry Guaranty, the Loan
Agreement and the other Loan Documents as to the Carry Guaranty.
9.3 Administration
and Remedies Consistent with Safe Harbor. Notwithstanding anything in this Agreement to the contrary, the Administrative Agent
shall exercise remedies upon an Event of Default solely against the Collateral (i.e., the pledged equity interests) as a secured party
under the Uniform Commercial Code and the Pledge Agreements and shall not foreclose upon or take direct title to the Property. Upon foreclosure
or other exercise of remedies, the Administrative Agent shall cause the acquiring Noteholder(s) or their designee to succeed to the
pledged equity interests and replace the applicable borrower as member. At the direction of any REIT Noteholder, the Administrative Agent
shall structure any acquisition, holding, or disposition of the Collateral or, upon acquisition, the Property so that title is taken and
held by a taxable REIT subsidiary, a qualified REIT subsidiary, or another Qualified Transferee designated by such REIT Noteholder, and
so that any real property acquired is operated through an independent contractor or taxable REIT subsidiary, in each case to preserve
the Mezzanine Loan Safe Harbor and such Noteholder’s qualification as a REIT.
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9.4 IIP
Control Rights to Protect REIT Status. Notwithstanding the consent, direction and control provisions of Article II (including
Sections 2.2 and 2.9), the Loan Documents, or any provision designating NREF OP IV SUBHOLDCO, LLC or the Administrative
Agent as the directing or controlling party: (a) no action constituting a Unanimous Decision, and no acceleration of the Loan, exercise
of remedies, foreclosure, credit bid, deed-in-lieu, workout, forbearance, or acquisition or disposition of Collateral or the Property,
shall be taken without the prior written consent of IIP to the extent IIP reasonably determines such action, or its manner or timing,
could cause IIP to fail to satisfy the Mezzanine Loan Safe Harbor or its qualification as a REIT; (b) IIP shall have the right to
direct the Administrative Agent to exercise, or refrain from exercising, any right or remedy (including cure rights, the right to purchase
the Senior Loan, and the manner and timing of any foreclosure or disposition), and to exercise the Mezzanine Lender’s rights under
the Intercreditor Agreement (including the Innovative Industrial Properties control rights thereunder), in each case to the extent IIP
reasonably determines necessary to preserve the Mezzanine Loan Safe Harbor or its REIT status; (c) if the Administrative Agent fails
to act on any such matter within five (5) Business Days after IIP’s written request (or such shorter period as is necessary
to preserve the right in question), IIP may act directly and take such action in its own name; and (d) any deferral, modification
or forbearance directed by IIP under this Section 9.4 shall not constitute a waiver of any Event of Default or of any right
or remedy.
9.5 A-2
Noteholder Purchase Option.
(a) Purchase
Option. So long as A-2 Noteholder is not in material breach of this Agreement (as to which written notice and a reasonable cure period
have been provided), A-2 Noteholder shall have the right, but not the obligation, exercisable upon not less than ten (10) Business
Days’ prior written notice to Administrative Agent and the applicable Noteholder, to purchase all or any portion of the Note A-1
and Note A-3 for a purchase price equal to the Note Purchase Price. The closing of any such purchase shall occur on the date specified
in such notice, and shall be effected by an assignment and assumption agreement in form and substance reasonably acceptable to A-2 Noteholder
and the selling Noteholder, together with delivery of the original Note if the Note is purchased in full or an allonge in the case of
a partial purchase, the Loan Documents in the selling Noteholder’s possession if the Note is purchased in full, and such other instruments
of transfer as A-2 Noteholder may reasonably request, in each case without recourse to, or representation or warranty by, the selling
Noteholder other than as to its title to such Note, its authority to effect such Transfer, the outstanding Note Principal Balance thereof,
and the absence of liens or participations created by such Noteholder. Any purchase of less than the entire Note Principal Balance of
a Note shall be in a minimum principal amount of $5,000,000, and in integral multiples of $5,000,000 in excess thereof (or, if less, the
entire remaining Note Principal Balance of such Note). Any purchase pursuant to this Section 9.5 shall constitute a permitted
Transfer under this Agreement and shall not require the consent of Administrative Agent, Servicer or any other Noteholder.
(b) Note
Purchase Price. “Note Purchase Price” means, with respect to any Note (or portion thereof) purchased pursuant
to this Section 9.5, an amount equal to the sum of the following (or applicable portion thereof based on the percentage of
the applicable Note being purchased): (i) the outstanding Note Principal Balance of such Note, (ii) all accrued interest and
unpaid interest thereof at the Applicable Rate through and including the closing date of such purchase, (iii) all late charges and
interest accruing at the Default Rate thereon, (iv) such selling Noteholder’s share of Additional Interest, Loan Increase
Additional Interest and Exit Fees, (regardless of whether Additional Interest, Loan Increase Additional Interest or Exit Fees are then
due and payable by the Borrower), (v) such Noteholder’s share of any Extension Fee, Origination Fee, and Underwriting Fee,
(vi) all other fees, costs, expenses, advances (including, without limitation, any Protective Advances funded by the selling Noteholder,
together with interest thereon at the Default Rate) and (vii) any interest or other amounts accruing with respect to such Note following
the commencement of a Bankruptcy Proceeding.
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(c) REIT
Matters. Any purchase pursuant to this Section 9.5 shall be structured, documented and consummated in a manner that preserves
the Mezzanine Loan Safe Harbor and the qualification of each REIT Noteholder as a REIT, and the provisions of this Article IX
shall apply to any such purchase, including with respect to the resulting adjustment of the Pro Rata Shares of the Noteholders. Notwithstanding
the foregoing, in no event shall A-1 Noteholder or A-3 Noteholder have any obligation to sell any portion of Note A-1 or Note A-3 if the
sale would result in the retained Note A-1 or retained Note A-3 failing the Mezzanine Loan Safe Harbor or cause any REIT Noteholder to
fail to qualify as a REIT or would cause any REIT compliance or exemption issues or adverse tax, 40 Act or regulatory consequences to
any REIT Noteholder.
(d) Retention
of Control. So long as the A-1 Noteholder or the A-3 Noteholder retains any interest in the Note A-1 or Note A-3, as applicable, such
Noteholder shall retain all consent, approval and control rights under the applicable Note under this Agreement, regardless of percentage
interest owned by A-2 Noteholder or its affiliates. A-2 Noteholder shall acquire such consent, approval and control rights with respect
to a Note only upon acquisition of one hundred percent (100%) of such Note.
(e) Replacement
of Administrative Agent and Lender. Upon the acquisition by A-2 Noteholder of one hundred percent (100%) of each of Note A-1 and Note
A-3 pursuant to this Section 9.5, A-2 Noteholder shall have the right, exercisable by written notice to Administrative Agent,
(i) to remove the then-acting Administrative Agent, without regard to the notice, cure and Required Noteholder requirements of Section 2.9,
and (ii) to appoint itself or its designee (which shall be a Qualified Transferee) as successor Administrative Agent and as the replacement
“Lender” under the Loan Agreement and the other Loan Documents, and the retiring Administrative Agent shall promptly execute
and deliver such assignments, notices, resignations and other instruments, and take such other actions, as are reasonably necessary to
effect such replacement and to cause the Borrower and any other party to the Loan Documents to recognize A-2 Noteholder or its designee
as the Lender and Administrative Agent thereunder. Except as provided in this Section 9.5(e), no Noteholder shall have any right
to cause itself or any other Person to be substituted as, or to designate a replacement, “Lender” or Administrative Agent
under the Loan Agreement.
9.6 Additional
Requirements.
(a) No
Noteholder shall agree to any modification of the Loan Documents that would provide for any interest or other amount contingent on, or
determined by reference to, the income or profits of any Person (other than a permitted fixed percentage of receipts or sales), any equity
participation or “kicker,” or any provision of services to tenants that would generate impermissible tenant service income
for a REIT Noteholder.
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(b) The
Administrative Agent shall furnish to each REIT Noteholder, promptly upon request, such financial and other information regarding the
Loan, the Collateral, the Borrower and the Property as such Noteholder reasonably requires to determine or confirm compliance with the
REIT asset and income tests and the Mezzanine Loan Safe Harbor and shall provide tax information reporting reasonably requested by such
Noteholder.
(c) The
Administrative Agent and each Noteholder shall reasonably cooperate with any Noteholder to preserve the Mezzanine Loan Safe Harbor and
any REIT Noteholder’s qualification as a REIT.
9.7 Control;
Conflicts. To the extent any provision of this Agreement or any other Loan Document would, if enforced as written, cause the Loan
to fail the Mezzanine Loan Safe Harbor or cause any REIT Noteholder to fail to qualify as a REIT, such provision shall be applied and
enforced only in the manner, and to the extent, that preserves such Mezzanine Loan Safe Harbor and such REIT qualification, and the provisions
of this Article IX shall control over any conflicting provision of this Agreement. The rights of IIP under this Article IX are
intended to be, and shall be administered consistently with, the Innovative Industrial Properties control rights under the Intercreditor
Agreement.
[SIGNATURE PAGE FOLLOWS]
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In witness whereof, the Initial
Noteholders and Administrative Agent have caused this Agreement to be duly executed as of the day and year first above written.
ADMINISTRATIVE AGENT:
NREF OP IV REIT SUB, LLC,
a Delaware limited
liability company
By:
/s/ Paul A. Richards
Name:
Paul
Richards
Title:
Authorized Signatory
INITIAL NOTEHOLDERS:
NREF OP IV SUBHOLDCO, LLC,
a Delaware limited liability company
By:
/s/
Paul A. Richards
Name:
Paul Richards
Title:
Authorized Signatory
IIP LIFE SCIENCE INVESTMENTS II LLC,
a Delaware limited liability company
By:
/s/
David Smith
Name:
David Smith
Title:
Authorized Signatory
Signature
Page to Co-Lender Agreement
SCHEDULE
1*
*Omitted pursuant to Item 601(a)(5) of Regulation S-K. The Company
agrees to furnish supplementally a copy of any omitted schedule or exhibit to the SEC upon request.
Exhibit A*
LOAN DOCUMENTS
*Omitted pursuant to Item 601(a)(5) of Regulation
S-K. The Company agrees to furnish supplementally a copy of any omitted schedule or exhibit to the SEC upon request.
Exhibit B*
Notices
*Omitted pursuant to Item 601(a)(5) of Regulation S-K. The Company
agrees to furnish supplementally a copy of any omitted schedule or exhibit to the SEC upon request.
Exhibit C
COMMITMENTS AND PRO RATA SHARES
Funded
Commitment
Unfunded
Commitment
Total
Commitment
Pro Rata
Share
A-1
Noteholder
$ 133,000,000
$ 0
$ 133,000,000
33.25 %
A-2
Noteholder
$ 0
$ 245,000,000
$ 245,000,000
61.25 %
A-3
Noteholder
$ 0
$ 22,000,000
$ 22,000,000
5.50 %
EX-10.4 — EXHIBIT 10.4
EX-10.4
Filename: tm2626535d1_ex10-4.htm · Sequence: 5
Exhibit 10.4
IIP LIFE SCIENCE INVESTMENTS II LLC
11440 W. Bernardo Court, Suite 100
San Diego, CA 92127
September 28, 2026
IQHQ, LP
One Boston Place
201 Washington Street, Suite 3920
Boston, MA 02108
Attention: General Counsel
Email: legal@iqhqreit.com
Re: Right of First Offer for Purchase or Finance of Alewife Park Center (this “Side Letter”)
To Whom It May Concern:
Reference
is made to the following: (i) the Mezzanine Promissory Note B in the maximum principal amount of $245,000,000.00, dated as of September 28,
2026 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “IIPR Note”),
made by IQHQ-ALEWIFE HOLDINGS, LLC, a Delaware limited liability company (the “Borrower”) in favor of IIP Life
Science Investments II LLC, a Delaware limited liability company (“IIPR”); (ii) the certain Amended and
Restated Mezzanine Loan and Security Agreement dated as of September 30, 2025 (as amended, restated, amended and restated, supplemented
or otherwise modified from time to time, the “Loan Agreement”), by and among Borrower, NREF OP IV REIT SUB,
LLC, a Delaware limited liability company (together with its successors and assigns, “Administrative Agent”),
NREF OP IV SUBHOLDCO, LLC, a Delaware limited liability company (“NREF”), and IIPR in connection with the Loan
made by Lenders to Borrower in the maximum principal amount of $400,000,000.00 in accordance therewith; and (iii) the Guaranty of
Recourse Obligations, Completion Guaranty, and Carry Guaranty, each dated as of September 30, 2025 (as amended, restated, amended
and restated, supplemented or otherwise modified from time to time, the “Guaranties”) made by IQHQ, LP, a Delaware
limited partnership (“OP”), in favor of Administrative Agent and the Lenders. Capitalized terms used but not otherwise
defined in this Side Letter have the meanings assigned to such terms in the Loan Agreement.
Section 1. Right of
First Offer to Purchase.
(a) Grant
of Purchase ROFO. Until such time as the IIPR Note has been paid and all obligations to IIPR under the Loan Documents have been satisfied
in full, IIPR shall have a continuing right of first offer to purchase any Property (as hereinafter defined) or the direct or indirect
ownership interests in any Property (the “Purchase ROFO”), upon the terms and conditions set forth in this Section 1.
In the event that IQHQ, Inc., a Maryland corporation (the “REIT”) or the OP desires to effectuate any Transfer
(as hereinafter defined), including by or through its subsidiaries, then prior to any such Transfer the REIT or OP, as applicable, shall
deliver written notice to IIPR (a “Sale Initiation Notice”) which shall (A) set forth the price at which
the REIT or OP, as applicable, desires to effectuate any such Transfer (“Proposed Price”) along with any other
material economic terms on which such Transfer would occur, and (B) offer IIPR the right to exercise its Purchase ROFO with respect
to any such Transfer on the terms set forth in the applicable Sale Initiation Notice. IIPR shall have the right, within fifteen (15) business
days after IIPR’s receipt of the applicable Sale Initiation Notice, to (x) exercise the Purchase ROFO with respect to the Transfer
set forth in the applicable Sale Initiation Notice by written notice to the REIT or OP, as applicable (“Purchase ROFO Acceptance
Notice”), or (y) waive the Purchase ROFO with respect to the Transfer set forth in the Sale Initiation Notice (“Purchase
ROFO Waiver Notice”). If IIPR delivers a Purchase ROFO Waiver Notice or does not deliver a Purchase ROFO Acceptance Notice
to the REIT or OP, as applicable, within fifteen (15) business days after IIPR’s receipt of the applicable Sale Initiation Notice,
then IIPR shall be deemed to have elected not to exercise the Purchase ROFO with respect to the Transfer set forth in the applicable Sale
Initiation Notice and the REIT or OP (including through its subsidiaries), as applicable, shall be permitted to proceed with such Transfer
as outlined in Section 1(b) below.
(b) Right
to Consummate Transfers. If IIPR delivers a Purchase ROFO Waiver Notice, does not deliver a Purchase ROFO Acceptance Notice to the
REIT or OP, as applicable, within fifteen (15) business days after IIPR’s receipt of the applicable Sale Initiation Notice, or does
not enter into an applicable Purchase Agreement (as hereinafter defined) in accordance with Section 1(c)(i) below, then
the REIT or OP, as applicable, shall have the right to effectuate the applicable Transfer, free and clear of the ROFO without any further
notice to IIPR provided that such Transfer is: (A) consummated within twelve (12) months after the later of the date that
IIPR (i) delivered the applicable Purchase ROFO Waiver Notice, (ii) was obligated to send the applicable Purchase ROFO Acceptance
Notice or (iii) was obligated to execute the applicable Purchase Agreement in accordance with Section 1(c)(i) below
after timely delivering the applicable Purchase ROFO Acceptance Notice, and (B) for a purchase price that is no less than ninety-five
percent (95%) of the Proposed Price. Except as otherwise provided in this Side Letter, any proposed Transfer that does not meet the requirements
set forth in clauses (A) and (B) of this Section 1(b) shall remain subject to IIPR’s Purchase ROFO and
the process set forth in Section 1(a) above shall restart.
(c) Purchase
ROFO Transaction Mechanics.
(i) Purchase
Agreement. Within fifteen (15) days after delivery of the applicable Purchase ROFO Acceptance Notice, IIPR or its designee, on
the one hand, and the REIT, OP or the applicable subsidiary of the REIT or OP, on the other hand, shall execute a mutually satisfactory
purchase and sale agreement or membership interest purchase agreement, as applicable, for the applicable Transfer (each, a “Purchase
Agreement”) and shall act reasonably in connection with negotiating and consummating the Purchase Agreement. The REIT, OP
or the applicable subsidiary of the REIT or OP, as applicable, shall prepare the initial draft of each Purchase Agreement. Each Purchase
Agreement shall include, without limitation, (A) the terms set forth in the Sale Initiation Notice, (B) customary representations,
warranties, conditions precedent, covenants and indemnification obligations for a purchaser of real property similar to the applicable
Property or direct or indirect interests in real property similar to the applicable Property, as applicable, (C) a requirement for
IIPR or its designee to deposit with a national title company selected by the REIT or OP the applicable Purchase Deposit (as hereinafter
defined) within two (2) Business Days after execution of such Purchase Agreement, (D) a due diligence period that expires no
later than the date that is thirty (30) days after execution of such Purchase Agreement, (E) a date for the closing of the applicable
Transfer that is no later than the date that is sixty (60) days after execution of such Purchase Agreement, and (F) allocation of
closing costs (e.g., transfer taxes, title and escrow) in accordance with local custom.
(ii) 1031
Exchange. In connection with any Transfer, upon the request of either the REIT or OP, as applicable, IIPR or its designee shall
reasonably cooperate with the REIT or OP, as applicable, in structuring any such Transfer so as to qualify as an exchange of like-kind
property pursuant to Section 1031 of the Internal Revenue Code of 1986, as amended (a “1031 Exchange”);
provided, however, that neither IIPR nor its designee shall be required to take title to any exchange property and neither IIPR nor its
designee will be required to agree to or assume any covenant, obligation or liability in connection therewith, the closing shall not be
delayed as a result of, or conditioned upon, such 1031 Exchange, the REIT or OP, as applicable, shall pay all costs associated with such
1031 Exchange, and the REIT or OP, as applicable, shall remain primarily liable under the applicable Purchase Agreement and indemnify
IIPR or its designee, as applicable, from and against any liability in connection with such 1031 Exchange.
Section 2. Right of
First Offer to Finance.
(a) Grant
of Financing ROFO. Until such time as the IIPR Note has been paid and all obligations to IIPR under the Loan Documents have been satisfied
in full, IIPR shall have a continuing right of first offer to provide financing or refinancing for the Property (the “Financing
ROFO”), upon the terms and conditions set forth in this Section 2. In the event that the REIT or the OP desires
to effectuate, including by or through any of its subsidiaries, any Financing (as hereinafter defined), then prior to any such Financing
the REIT or OP, as applicable, shall deliver written notice to IIPR (a “Financing Initiation Notice”) which
shall (A) set forth the proposed loan amount (“Proposed Loan”) along with any other material economic terms
on which such Financing would occur, and (B) offer IIPR the right to exercise its Financing ROFO with respect to any such Financing
on the terms set forth in the applicable Financing Initiation Notice. IIPR shall have the right, within fifteen (15) business days after
IIPR’s receipt of the applicable Financing Initiation Notice, to (x) exercise the Financing ROFO with respect to the Financing
set forth in the applicable Financing Initiation Notice by written notice to the REIT or OP, as applicable (“Financing ROFO
Acceptance Notice”), or (y) waive the Financing ROFO with respect to the Financing set forth in the Financing Initiation
Notice (“Financing ROFO Waiver Notice”). If IIPR delivers a Financing ROFO Waiver Notice or does not deliver
a Financing ROFO Acceptance Notice to the REIT or OP, as applicable, within fifteen (15) business days after IIPR’s receipt of the
applicable Financing Initiation Notice, then IIPR shall be deemed to have elected not to exercise the Financing ROFO with respect to the
Financing set forth in the applicable Financing Initiation Notice and the REIT or OP, as applicable, shall be permitted to proceed with
such Financing as outlined in Section 2(b) below.
(b) Right
to Consummate Financing. If IIPR delivers a Financing ROFO Waiver Notice, does not deliver a Financing ROFO Acceptance Notice to the
REIT or OP, as applicable, within fifteen (15) business days after IIPR’s receipt of the applicable Financing Initiation Notice,
or does not enter into the applicable Loan Documents (as hereinafter defined) in accordance with Section 2(c) below,
then the REIT or OP, as applicable, shall have the right to effectuate the applicable Financing, free and clear of the Financing ROFO
without any further notice to IIPR provided that such Financing is: (A) consummated within twelve (12) months after the later
of the date that IIPR (i) delivered the applicable Financing ROFO Waiver Notice, (ii) was obligated to send the applicable Financing
ROFO Acceptance Notice or (iii) was obligated to execute the applicable Loan Documents in accordance with Section 2(c)(i) below
after timely delivering the applicable Financing ROFO Acceptance Notice, and (B) for a loan that is not greater or less than the
Proposed Loan by more than five percent (5%) and upon terms that are not materially less favorable to the borrower than those set forth
in the Financing Initiation Notice. Except as otherwise provided in this Side Letter, any proposed Financing that does not meet the requirements
set forth in clauses (A) and (B) of this Section 2(b) shall remain subject to IIPR’s Financing ROFO and
the process set forth in Section 2(a) above shall restart.
(c) Financing
ROFO Transaction Mechanics. Within thirty (30) days after delivery of the applicable Financing ROFO Acceptance Notice, IIPR or
its designee, on the one hand, and the REIT, OP or the applicable subsidiary of the REIT or OP, on the other hand, shall execute mutually
satisfactory loan documents, as applicable, for the applicable Financing (each, the “Loan Documents”) and shall
act reasonably in connection with negotiating and consummating the Loan Documents. IIPR shall prepare the initial draft of the Loan Documents.
Each set of Loan Documents shall include, without limitation, (i) the terms set forth in the Financing Initiation Notice, (ii) customary
representations, warranties, conditions precedent, covenants and indemnification obligations for a borrower completing a similar financing
with respect to real property or direct or indirect interests in real property similar to the applicable Property, as applicable, and
(iii) a requirement for the REIT, OP or the applicable subsidiary to pay all of IIPR’s costs and expenses in connection with
the Financing, including the cost to obtain any title policies, UCC policies, property diligence reports, certifications and searches
as customary for lenders in similar financings.
Section 3. Representations
and Warranties. Each of the IQHQ Parties represents and warrants that: (a) it is duly organized and is validly existing and in
good standing pursuant to the laws of the State of Delaware; (b) it has all requisite power and authority to execute, deliver and
perform the terms of this Side Letter, as applicable; (b) the execution, delivery and performance of this Side Letter will not result
in a breach of any of the terms and conditions of any agreement or instrument to which it is subject nor will any such action result in
any violation of the provisions of any statute or any order, rule or regulation of any court or governmental agency or body having
jurisdiction over its respective properties or assets; (c) any and all consents, authorizations or approvals required have been obtained;
and (d) its obligations under the Side Letter constitute legal, valid, binding and enforceable obligations.
Section 4. Time of
the Essence. The Parties agree that time shall be of the essence with regard to this Side Letter and the performance of the terms
and provisions hereof.
Section 5. Definitions.
(a) “Affiliate”
means, as to any Person, any other Person that, directly or indirectly, is in Control of, is Controlled by or is under common Control
with such Person (other than any Person that is an Affiliate of any of the IQHQ Parties solely as a result of owning securities issued
by any of the IQHQ Parties or having special rights to designate members of the board of directors of the REIT).
(b) “Change
of Control” means the (i) consummation of any sale, lease, transfer, conveyance or other disposition (including
by way of liquidation or dissolution of Holdings, the REIT and/or OP), in a single transaction or in a series of related transactions,
of all or substantially all of the assets of Holdings, the REIT and OP, taken as a whole, to any Person(s) or (ii) the acquisition
by any Person(s), including any syndicate or group deemed to be a person under Section 13(d)(3) of the Securities Exchange Act
of 1934, of beneficial ownership, directly or indirectly, through a purchase, merger or other acquisition transaction or series of purchases,
mergers or other acquisition transactions of voting stock or equity interests of Holdings, the REIT and/or OP entitling that Person
to exercise more than fifty percent (50%) of the combined voting power of Holdings’, the REIT’s and OP’s outstanding
voting stock or equity interests.
(c) “Control”
means the possession, directly or indirectly, of the power to direct or cause the direction of management, policies or activities of a
Person, whether through ownership of voting securities, beneficial interests, by contract or otherwise. The term “Controlled”
has a correlative meaning.
(d) “Financing”
means any debt or equity financing or refinancing from any Third Party to be secured with any Property or the direct or indirect
ownership interests in any Property; provided, however, the defined term “Financing” shall exclude any Permitted Indebtedness.
(e) “Holdings”
means IQHQ Holdings, LP, a Delaware limited partnership.
(f) “IQHQ
Parties” means the REIT, OP, Holdings, Borrower, Sole Member and Mortgage Borrower.
(g) “Parties”
means the IQHQ Parties and IIPR.
(h) “Person”
means any individual, partnership, corporation, limited liability company, limited liability partnership, trust or other entity.
(i) “Property”
means the master-planned, transit-oriented life science campus situated on approximately 27 acres in West Cambridge, Massachusetts, commonly
known as Alewife Park, owned by IQHQ-Alewife, LLC, the legal description of which is attached hereto as Exhibit A and incorporated
herein by reference, including the buildings and other improvements thereon.
(j) “Purchase
Deposit” means a non-refundable (other than in connection with customary provisions set forth in a purchase and sale agreement
for real property similar to the applicable Property or a membership interest purchase agreement for direct or indirect interests in real
property similar to the applicable Property, as applicable) deposit made by IIPR or its designee in escrow with a national title company
selected by the REIT or OP in an amount equal to five percent (5%) of the applicable Proposed Price.
(k) “Third
Party” means any Person that is not an Affiliate of any of the IQHQ Parties.
(l) “Transfer”
means the sale, transfer, conveyance, assignment, disposition or divestment of all or any Property to a Third Party, or of the direct
or indirect interests of OP and the REIT in any Property to a Third Party; provided, however, the defined term “Transfer”
shall exclude (i) any foreclosure, deed-in-lieu of foreclosure, realization of collateral with respect to a pledge of equity interests
or an assignment-in-lieu thereof, (ii) any conveyance pursuant to a taking or deed in lieu of a taking or other exercise of eminent
domain, or (iii) any new Permitted Encumbrances under the Loan Documents. A transaction pursuant to which a Change of Control shall
occur shall not be deemed to be a Transfer for purposes of this Side Letter (and, accordingly, the Purchase ROFO rights set forth herein
shall not apply thereto).
Section 6. Termination.
This Side Letter shall terminate automatically upon the earlier of (a) a sale, transfer or other disposition by IIPR of all of its
interests in and to the IIPR Note and Loan Documents, (b) any Change of Control, (c) any default by IIPR with respect to its
obligation to purchase any Property or any direct or indirect interests in any Property pursuant to the terms of any Purchase Agreement,
or (d) any material uncured default by IIPR with respect to its obligation to provide financing pursuant to the terms of any Loan
Documents. Upon the termination of this Side Letter, neither IIPR nor any of its designees shall have any further rights hereunder with
respect to any Property, any direct interest in any Property or any indirect interest in any Property and all Sale Initiation Notices,
Financing Initiation Notices, Purchase ROFO Acceptance Notices and Financing ROFO Acceptance Notices delivered prior to the termination
of this Side Letter shall automatically terminate and be of no further force or effect; provided, however, that the terms of any executed
Purchase Agreement or Loan Documents shall not be affected by such termination.
Section 7. Enforcement.
The Parties agree that irreparable damage would occur if any provision of this Side Letter were not performed in accordance with the terms
hereof and that the Parties shall be entitled to specific performance of the terms hereof, in addition to any other remedy to which they
are entitled at law or in equity. Accordingly, it is agreed that the Parties shall be entitled to an injunction or injunctions to prevent
breaches of this Side Letter, without any bond or other security being required, and to enforce specifically the terms and provisions
of this Side Letter by a decree of specific performance without the necessity of proving the inadequacy of money damages as a remedy,
this being in addition to any other remedy to which the Parties are entitled at law or in equity.Section 6.
Section 7. Amendments
and Waivers. This Side Letter may not be amended except by an instrument in writing signed on behalf of each of the Parties. An instrument
in writing by IIPR, on the one hand, or the REIT on behalf of the IQHQ Parties, on the other hand, may waive compliance by the other with
any term or provision hereof that the other was or is obligated to comply with or perform. Any such waiver shall not be construed to be
a waiver of any succeeding breach or of any other term or provision hereof. No delay or omission by any party hereto to exercise any right
or power under this Side Letter or pursuant to law shall impair such right or power or be construed as a waiver thereof.
Section 8.
Successors and Assigns. This Side Letter and the rights and obligations hereunder shall not be assignable or transferable by IIPR
(including by operation of law in connection with a merger or consolidation of such party) without the prior written consent of the IQHQ
Parties; provided that IIPR may assign its rights and obligations hereunder to any Affiliates in which IIPR owns, directly or indirectly,
50% or more of the voting securities). Any attempted assignment in violation of this Section 8 shall be void.
Section 9. Governing
Law; Waiver of Jury Trial. THIS SIDE LETTER, AND ALL CLAIMS OR CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT) THAT MAY BE BASED
UPON, ARISE OUT OF OR RELATE TO THIS SIDE LETTER, OR THE NEGOTIATION, EXECUTION OR PERFORMANCE OF THIS SIDE LETTER (INCLUDING ANY CLAIM
OR CAUSE OF ACTION BASED UPON, ARISING OUT OF OR RELATED TO ANY REPRESENTATION OR WARRANTY MADE IN OR IN CONNECTION WITH SIDE LETTER OR
AS AN INDUCEMENT TO ENTER INTO THIS SIDE LETTER), SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF DELAWARE APPLICABLE TO AGREEMENTS
MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE, WITHOUT REGARD TO THE CONFLICTS OF LAW PRINCIPLES OF SUCH STATE. EACH PARTY HERETO
HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LITIGATION DIRECTLY
OR INDIRECTLY ARISING OUT OF, INVOLVING OR OTHERWISE IN RESPECT OF THIS SIDE LETTER OR ANY TRANSACTION CONTEMPLATED HEREBY. EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HERETO HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT
IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS SIDE LETTER BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS
IN THIS SECTION 9.
Section 10. Notices.
All notices or other communications required or permitted to be given hereunder shall be in writing and shall be delivered by hand or
sent, postage prepaid, by registered, certified or express mail, overnight courier service or electronic mail and shall be deemed given
when received as follows:
(a) if
to IIPR,
11440 West Bernardo Ct, Suite 100
San Diego, CA 92127
Attention: Legal
Email:
kelly.spicher@iipreit.com;
pm@iipreit.com;
david.smith@iipreit.com
(b) if
to the Board or any IQHQ Entity,
c/o IQHQ, Inc.
201 Washington Street
Suite 3920
Boston, MA 02108
Attention: Legal Department
Email: legal@iqhqreit.com
with a copy to:
Paul Hastings LLP
1999 Avenue of the Stars, 27th Floor
Los Angeles, CA 90067
Attention: Derek V. Roth, Esq.
Email: derekroth@paulhastings.com
Section 11.
Counterparts. This Side Letter may be executed in a number of identical counterparts. Executed counterparts may be delivered by
facsimile or other electronic means, and shall be effective when received. This Side Letter shall be of no force or effect unless and
until it has been executed by all parties hereto. The words “executed”, “execution”, “signed”,
“signature”, and words of like import in this Side Letter shall include images of manually executed signatures transmitted
by facsimile or other electronic format (including, without limitation, “pdf”, “tiff” or “jpg”) and
other electronic signatures (including, without limitation, DocuSign and AdobeSign). The use of electronic signatures and electronic
records (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic
means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based record-keeping
system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce
Act, and any other applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act or the
Uniform Commercial Code.
Section 12. Rules of
Construction. Unless otherwise specified herein, all meanings attributed to defined terms herein shall be equally applicable to both
the singular and plural forms of the terms so defined.
[Signature Pages Follow]
Very truly yours,
IIP LIFE SCIENCE INVESTMENTS II LLC, a Delaware
limited liability company
By:
/s/ David Smith
Name:
David Smith
Title:
Chief Financial Officer
[Signature
Page – Side Letter re: Right of First Offer for Alewife Park Properties]
AGREED AND ACCEPTED:
IQHQ, LP
By:
/s/
Christopher Brewer
Name:
Christopher Brewer
Title:
Authorized Signatory
IQHQ, INC.
By:
/s/ Christopher Brewer
Name:
Christopher Brewer
Title:
Authorized Signatory
IQHQ HOLDINGS, LP
By:
/s/ Christopher Brewer
Name:
Christopher Brewer
Title:
Authorized Signatory
IQHQ-ALEWIFE, LLC
By:
/s/ Christopher Brewer
Name:
Christopher Brewer
Title:
Authorized Signatory
IQHQ-ALEWIFE MEMBER, LLC
By:
/s/ Christopher Brewer
Name:
Christopher Brewer
Title:
Authorized Signatory
IQHQ-ALEWIFE HOLDINGS, LLC
By:
/s/ Christopher Brewer
Name:
Christopher Brewer
Title:
Authorized Signatory
[Signature
Page – Side Letter re: Right of First Offer for Alewife Park Properties]
EXHIBIT A*
LEGAL DESCRIPTION OF ALEWIFE PARK
*Omitted pursuant to Item 601(a)(5) of Regulation S-K. The Company
agrees to furnish supplementally a copy of any omitted schedule or exhibit to the SEC upon request.
EX-99.1 — EXHIBIT 99.1
EX-99.1
Filename: tm2626535d1_ex99-1.htm · Sequence: 6
Exhibit 99.1
Innovative Industrial Properties Announces Mezzanine
Loan Commitment
of $245 Million for Alewife Park
Investment Expected to Yield 15.8% and
Generate Significant Earnings Accretion for IIP Shareholders
Investment Expands on IIP's Commitment to Diversify
into the Life Science Sector
SAN DIEGO, CA – October 1, 2026 – Innovative Industrial
Properties, Inc. (NYSE: IIPR) ("IIP" or the "Company") announced today that it entered into definitive agreements
to provide $245 million under a new mezzanine loan commitment to affiliates of IQHQ, Inc. ("IQHQ") in connection with the completion,
lease-up, tenant improvements and stabilization of Phase I of Alewife Park, a master-planned life science campus in Cambridge, Massachusetts
(the "Investment"). The loan is secured by pledges of equity interests in the entities that own the Alewife Park campus.
Located in Cambridge, Massachusetts, Alewife Park is a 27-acre life
science campus comprised of three existing buildings totaling 392,000 square feet (Phase I) and two pad-ready sites with up to 364,000
square feet of additional development potential (Phase II). According to IQHQ, the campus has approximately $800 million invested prior
to IIP’s investment and Phase I is currently 78% leased to Lila Sciences, a Cambridge, MA based AI-enabled next generation scientific
discovery company.
“We are pleased to further expand our life science portfolio
through this investment for Alewife Park, which we believe will provide attractive risk-adjusted returns for IIP shareholders and significant
accretion to our earnings,” said Alan Gold, Executive Chairman of IIP. “This transaction reflects our disciplined approach
to capital allocation by providing financing in support of a premier Class A life science campus in Cambridge that has demonstrated strong
leasing momentum and further allows us to capitalize on the attractive, long-term strength of the life science industry.”
IIP funded approximately $111 million at closing, which was used to
repay in full the borrower’s existing $85 million bridge loan, together with accrued interest, fees and expenses, with the remaining
$134 million expected to be funded through the fourth quarter of 2027, as additional amounts are drawn and funding conditions are satisfied.
The loan is expected to yield an interest rate of approximately 15.8% over the term of the loan, subject to a floor of 14%.
The loan matures in February 2028 and has a one-year extension option.
IIP may also purchase all or a portion of the other mezzanine lender’s notes at IIP’s option, thereby increasing its investment
by up to $155 million on the same terms. All items described in this paragraph are subject to certain conditions set forth in the loan
agreements.
The Company expects to fund the Investment with cash on hand and borrowings
under its revolving credit facilities.
About IQHQ
IQHQ, Inc. is a life science focused real estate company founded in
2019 to meet the industry's needs through the acquisition, development, redevelopment, leasing and management of life science assets.
About Innovative Industrial Properties
Innovative Industrial Properties, Inc. is an internally managed real
estate investment trust (REIT) focused on the acquisition, ownership and management of specialized properties leased to experienced,
state-licensed operators for their regulated cannabis facilities and financial investments in the life science industry. Additional
information is available at www.innovativeindustrialproperties.com.
This press release contains statements that IIP believes to be
“forward-looking statements” within the meaning of the safe harbor provisions of the Private Securities Litigation Reform
Act of 1995. All statements other than historical facts are forward-looking statements. When used in this press release, words such as
IIP “expects,” “intends,” “plans,” “estimates,” “anticipates,” “believes”
or “should” or the negative thereof or similar terminology are generally intended to identify forward-looking statements.
These forward-looking statements include, but are not limited to, statements regarding the expected benefits or impact of the transactions
described in this press release; the Company’s ability to fund future advances under the mezzanine loan and anticipated funding
sources; the Company’s ability to realize the anticipated benefits of the right of first offer; estimated interest rates and projected
yields on the Investment; and the borrower’s ability to satisfy its obligations under the loan. Such forward-looking statements
are based on current expectations and are subject to risks and uncertainties that could cause actual results to differ materially from
those expressed in, or implied by, such statements. Factors that may cause actual results to differ materially from current expectations
include, but are not limited to, changes in interest rates, including fluctuations in SOFR; the borrower’s ability to satisfy conditions
to future advances; the borrower’s ability to achieve projected leasing levels; risks related to the development, construction,
and lease-up of life science properties; changes in real estate market conditions; the Company’s ability to maintain its REIT qualification;
and the risk factors discussed in the Company’s annual report on Form 10-K for the year ended December 31, 2025, as updated by
the Company’s subsequent reports filed with the Securities and Exchange Commission. Investors should not place undue reliance upon
forward-looking statements. IIP disclaims any obligation to update or revise any forward-looking statements, whether as a result of new
information, future events or otherwise.
Company Contact
David Smith
Chief Financial Officer
Innovative Industrial Properties, Inc.
(858) 997-3332
EX-99.2 — EXHIBIT 99.2
EX-99.2
Filename: tm2626535d1_ex99-2.htm · Sequence: 7
Exhibit 99.2
Innovative Industrial Properties 1 INNOVATIVE INDUSTRIAL
PROPERTIES
NYSE: IIPR
INNOVATIVEINDUSTRIALPROPERTIES.COM
COMPANY PRESENTATION
– OCTOBER 2026
Innovative Industrial Properties 2
This presentation and our associated comments includes "forward-looking statements" (within the meaning of the Private Securities Litigation Reform Act of 1995, Section 27A of the Securities Act of 1933, as amended, and Section 21E
of the Securities Exchange Act of 1934, as amended) that are subject to risks and uncertainties. In particular, statements pertaining to our capital resources, portfolio performance and results of operations contain forward-looking
statements. Likewise, our statements regarding anticipated growth in our funds from operations and anticipated market and regulatory conditions, our strategic direction, demographics, results of operations, plans and objectives are
forward-looking statements. Forward-looking statements involve numerous risks and uncertainties, and you should not rely on them as predictions of future events. Forward-looking statements depend on assumptions, data or methods
which may be incorrect or imprecise, and we may not be able to realize them. We do not guarantee that the transactions and events described will happen as described (or that they will happen at all). You can identify forward-looking
statements by the use of forward-looking terminology such as “believes,” “expects,” “may,” “will,” “should,” “seeks,” “approximately,” “intends,” “plans,” “estimates” or “anticipates” or the negative of these words and phrases or similar
words or phrases. However, the absence of these or similar words or expressions does not mean a statement is not forward-looking. You can also identify forward-looking statements by discussions of strategy, plans or intentions. The
following factors, among others, could cause actual results and future events to differ materially from those set forth or contemplated in the forward-looking statements: rates of default on leases for our assets; our ability to re-lease
properties upon tenant defaults or lease terminations for the rent we currently receive, or at all; concentration of our portfolio of assets and limited number of tenants and counterparties, including our significant financial exposure to
IQHQ, Inc. and its affiliates through multiple investment vehicles; the estimated growth in and evolving market dynamics of the regulated cannabis market; defaults on our investments in real estate-related assets, such as the IQHQ credit
facility, IQHQ preferred stock and the Alewife Park mezzanine loan; our ability to fund our mezzanine loan commitments; our anticipated yields, returns and accretive impact of our mezzanine debt and other investments; our ability to
identify, acquire or profitably operate life science properties; market dynamics in the life science sector; the demand for regulated cannabis cultivation and processing facilities; decreased economic activity due to fluctuations in trade
policies, tariffs, and related government actions; inflation dynamics; the impact of pandemics on us, our business, our tenants, or the economy generally; war and other hostilities, including the conflicts in Ukraine and Iran; our business
and investment strategy; our projected operating results; actions and initiatives of the U.S. or state governments and changes to government policies and the execution and impact of these actions, initiatives and policies, including the
fact that cannabis remains illegal under federal law; availability of suitable investment opportunities in the regulated cannabis industry; our understanding of our competition and our potential tenants’ alternative financing sources; the
expected medical-use or adult-use cannabis legalization in certain states; shifts in public opinion regarding regulated cannabis; the potential impact on us from litigation matters, and governmental inquiries, investigations, subpoenas,
or enforcement actions, including rising liability and insurance costs; the additional risks that may be associated with certain of our tenants cultivating, processing and/or dispensing adult-use cannabis in our facilities; the state of the U.S.
economy generally or in specific geographic areas; economic trends and economic recoveries; our ability to access equity or debt capital; financing rates for our target assets; our level of indebtedness, which could reduce funds
available for other business purposes and reduce our operational flexibility; covenants in our debt instruments, which may limit our flexibility and adversely affect our financial condition; our ability to maintain our investment grade
credit rating; changes in the values of our assets; our expected portfolio of assets; our expected investments; interest rate mismatches between our assets and our borrowings used to fund such investments; changes in interest rates
and the market value of our assets; the degree to which any interest rate or other hedging strategies may or may not protect us from interest rate volatility; the impact of and changes in governmental regulations, tax law and rates,
accounting guidance and similar matters; how and when any forward equity sales may settle; our ability to maintain our qualification as a real estate investment trust (“REIT”) for U.S. federal income tax purposes; our ability to maintain
our exemption from registration under the Investment Company Act of 1940; availability of qualified personnel; and market trends in our industry, interest rates, real estate values, the securities markets or the general economy.
The risks included here are not exhaustive, and additional factors could adversely affect our business and financial performance, including, but not limited to, those risk factors described in our Securities and Exchange Commission
(“SEC”) filings, our Annual Report on Form 10-K for the year ended December 31, 2025 (“2025 Form 10-K”) under Item 1A, as supplemented by the discussion in Item 1A of Part II of our subsequent Quarterly Reports on Form 10-Q.
Those risks continue to be relevant to our performance and financial condition. Moreover, we operate in a very competitive and rapidly changing environment. New risk factors emerge from time to time and it is not possible for
management to predict all such risk factors, nor can it assess the impact of all such risk factors on our business or the extent to which any factor, or combination of factors, may cause actual results to differ materially from those contained
in any forward-looking statements. Any forward-looking statement made by us speaks only of the date on which we make it. We undertake no obligation to publicly update or revise any forward-looking statements, whether as a result of
new information, future events or otherwise, except as may be required by law. Stockholders and investors are cautioned not to unduly rely on such forward-looking statements when evaluating the information presented in our filings
and reports.
This presentation includes certain non-GAAP financial measures. These non-GAAP measures are presented for supplemental information and should not be considered a substitute for financial information presented in accordance with
GAAP. A reconciliation of these non-GAAP measures to the most directly comparable GAAP measures is set forth in the Appendix to this presentation.
Market and industry data are included in this presentation. We have obtained substantially all of this information from internal studies, public filings, other independent published industry sources and market studies prepared by third
parties. We believe these internal studies, public filings, other independent published industry sources and market studies prepared by third parties are reliable. However, this information may prove to be inaccurate. No representation
or warranty is made as to the accuracy of such information. All amounts shown in this presentation are unaudited. This is not an offer to sell or solicitation to buy securities of Innovative Industrial Properties, Inc. Any offers to sell or
solicitations to buy securities of Innovative Industrial Properties, Inc. shall be made only by means of a prospectus approved for that purpose.
FORWARD LOOKING STATEMENTS
Innovative Industrial Properties 3
Note: Data as of June 30, 2026, unless otherwise noted.
(1) Total Invested Capital: Includes (1) total investments in properties (consisting of purchase price and construction funding and improvements reimbursed to tenants, if any, but excluding transaction costs) and (2) total additional commitments to reimburse certain tenants and sellers for completion of construction and
improvements at the properties. Excludes Loans and Securities.
(2) Weighted average lease length calculated by weighting each remaining lease term by the Annualized Base Rent (“ABR”). ABR is calculated by multiplying the sum of contractually due base rents and property management fees for the last month in the quarter, by twelve.
IIPR AT A GLANCE
$2.4B
Total
Invested
Capital(1)
108
Total
Properties
11.9 Years
Weighted
Average Lease
Length
(2)
$63.3M
Q2 2026
Total Revenue
$270M
Financial
Investment in
Life Science
19
U.S.
States
$1.2B+
Dividends Paid
Since Inception
in ‘16
Innovative Industrial Properties, Inc. (NYSE: IIPR) is a diversified REIT with investments across cannabis and life sciences
Innovative Industrial Properties 4
INVESTMENT HIGHLIGHTS
DIVERSIFIED BUSINESS MODEL
• $2.4B triple-net lease portfolio
• Strong initial yields with annual escalators
• $270M financial investment in life science
industry
STRONG BALANCE SHEET
• One of the lowest leveraged REITs at 1.7x
net debt to adjusted EBITDA
• Demonstrated access to multiple capital
markets: $400M+ exchangeable notes raise
in June
DIVERSIFIED PORTFOLIO
• Properties across 19 U.S. states
• Leased to 35+ tenants
• Mix of industrial and retail properties
NICHE EXPERTISE
• Experience working with tenants and
borrowers in heavily regulated industries
• Diligent underwriting process focused on
best-in-class operators
• Seasoned management team with significant
REIT experience
STRONG TRACK RECORD
• 7% CAGR in AFFO/share 2020 – Q2'26
(Ann)(3)
• Total return since inception in 2016 of
486%(4)
• Over $1.2B+ in dividends paid since
inception in 2016
(1) Whitney Economics Cannabis Market Forecast (March 2026).
(2) Cushman & Wakefield Life Sciences Update (February 2026).
(3) Adjusted funds from operations (“AFFO”) is a supplemental non-GAAP financial measure used in the real estate industry to measure and compare the operating performance of real estate companies. A complete reconciliation containing adjustments from GAAP net income attributable to common stockholders to
AFFO is included in the “AFFO Reconciliation” found at the end of this presentation.
(4) Per S&P Capital IQ Pro as of 6/30/2026.
GROWING MARKETS
• 8% CAGR projected in cannabis industry
from 2025-2030E
(1)
• AI-enabled discovery is broadening the life
sciences market opportunity, reinforcing the
need for specialized lab infrastructure
(2)
Innovative Industrial Properties 5
NNN Leases
• Leases are generally 100% triple-net
⚬ No recurring capital expenditures during lease term
⚬ All property expenses paid by the tenant, including
capital repairs, property taxes and property
insurance
• Typically, 15-20 year initial lease terms (vs. ~5 years for
traditional industrial leases)
• Leases generally subject to parent company guarantees
covering operations throughout the U.S.
Life Science Investments
• IQHQ strategic investment announced in Q3’25
• Target investments are with assets or real estate
companies in major life science markets
⚬ Attractive spread to cost of capital
⚬ Enhances scale and diversification by industry
and tenant
⚬ Provides growth opportunities in a large and
growing sector
OUR BUSINESS
MODEL & BENEFITS
PORTFOLIO COMPOSITION
CANNABIS
87.6%
LIFE SCIENCES
12.2%
$325M
BASE RENT
/ INTEREST
(1)
OTHER
0.2%
Shifting
Revenue Mix
More Towards
Life Sciences
Note: Data as of June 30, 2026, unless otherwise noted.
(1) Annualized Base Rent and Annualized Income from Loans and Securities (“Base Rent / Interest”) is calculated by adding Annualized Base Rent (“ABR”) and Annualized Income from Loans and Securities. ABR is calculated by multiplying the sum of contractually due base rents and property management fees for the last
month in the quarter, by twelve. Annualized Income from Loans and Securities is calculated by multiplying the principal balance as of the end of quarter, by the weighted average interest rate.
Innovative Industrial Properties 6
NNN PORTFOLIO OVERVIEW
IIPR has a geographically diversified triple net portfolio of cannabis real estate throughout the United States
Note: Data as of June 30, 2026, unless otherwise noted.
(1) As a % of Annualized Base Rent (“ABR”). ABR is calculated by multiplying the sum of contractually due base rents and property management fees for the last month in the quarter, by twelve.
(2) “Industrial” reflects facilities utilized or expected to be utilized for regulated cannabis cultivation, processing and/or distribution activities, which can consist of industrial and/or greenhouse space.
Property Type
(1)
State Diversification(1)
State ABR ($000s)(1) %(1) # of Properties Square Feet (000s)
Illinois $40,773 14.9% 7 965
Pennsylvania 36,582 13.4% 10 1,361
Massachusetts 35,619 13.1% 10 993
Florida 31,867 11.7% 5 1,153
Michigan 24,351 8.9% 13 901
New York 21,727 8.0% 1 234
Ohio 16,424 6.0% 5 374
New Jersey 13,997 5.1% 4 291
Maryland 13,955 5.1% 5 319
Colorado 7,611 2.8% 26 229
Total – Top 10 States $242,906 89.0% 86 6,820
0-5% 5-10% 10-15% No Presence
2%
Retail
90%
Industrial(2)
8%
Industrial
/ Retail
Innovative Industrial Properties 7
Tenant ABR ($000s) (%)(1) Square Feet (000s) # of Leases
$32,067 9.9% 624 4
26,574 8.2% 306 6
23,247 7.2% 664 3
22,502 6.9% 637 8
20,151 6.2% 740 6
18,335 5.6% 488 4
17,517 5.4% 298 4
17,294 5.3% 379 5
16,588 5.1% 593 2
10,173 3.1% 238 3
Total $204,448 62.9% 4,967 45
NNN PORTFOLIO
TOP 10 TENANTS
Note: Data as of June 30, 2026, unless otherwise noted.
(1) As a % of Annualized Base Rent and Annualized Income from Loans and Securities (“Base Rent / Interest”). Annualized Base Rent and Annualized Income from Loans and Securities is calculated by adding Annualized Base Rent (“ABR”) and Annualized Income from Loans and Securities. ABR is calculated by multiplying
the sum of contractually due base rents and property management fees for the last month in the quarter, by twelve. Annualized Income from Loans and Securities is calculated by multiplying the principal balance as of the end of quarter, by the weighted average interest rate.
(2) Each “Tenant” represents the parent company of the tenant, for which the parent company has provided a corporate guaranty. A parent company may have multiple tenant subsidiaries across IIPR’s properties. Total Invested Capital includes (1) total investments in properties (consisting of purchase price and
construction funding and improvements reimbursed to tenants, if any, but excluding transaction costs) and (2) total additional commitments to reimburse certain tenants and sellers for completion of construction and improvements at the properties. Excludes Loans and Securities.
(3) As a % of Annualized Base Rent (“ABR”). Excludes non-cannabis tenants that comprise less than 1% of ABR in the aggregate.
(4) “MSO” stands for Multi-State Operator which means the tenant (or guarantor) conducts cannabis operations in more than one state. “SSO” stands for Single-State Operator which means the tenant (or guarantor) conducts cannabis operations in a single state.
(5) These leases are in default, as disclosed in our 8-K filed on March 14, 2025.
(6) These leases are in default, as disclosed in our 8-K filed on March 28, 2025.
(7) These leases are in default, as disclosed in our 8-K filed on July 21, 2026.
Company Type
62% Public 38% Private
Total Invested Capital & Tenant Growth(2)
Tenant Composition(3)
Operator Type
(4)
87% MSO 13% SSO
(5)
(6)
(7)
Innovative Industrial Properties 8
LIFE SCIENCES INVESTMENT
• IQHQ – A Premier Life Science Real Estate Platform
• $5B+ in total investments
• 5+ million square feet of properties in leading life science markets
including Boston, San Francisco and San Diego
• Strategic and Financially Accretive Transaction
• In August 2025, announced a $270M total commitment, comprised of:
• $100M investment in a 3-year revolving credit facility: 13.5% yield
• $170M investment in preferred stock: 15.0% yield
• In addition, potential to receive warrants in IQHQ earned upon the
satisfaction of certain funding milestones
• IIPR has a right of first offer on certain future asset sales of IQHQ
• Investment is fully funded as of June 2026
• Diversification and Life Science Expertise
• Improves sector diversification beyond cannabis-related assets
• IIPR’s management team has decades of combined experience in the
life science real estate industry
Innovative
Industrial Properties 9ALEWIFE PARK INVESTMENTPlease refer to the Company’s 8K filed
on October 1, 2026 for a complete description of the terms and conditions of this investment.
(1) Based on IQHQ, Inc.’s management information and estimates. (2) Based on the Company’s
annualized base rent and annualized income from loans and securities as of June 30, 2026,
pro forma for the full deployment of the $245M investment. Actual income will depend on the
timing and amount of future advances, which are subject to conditions precedent. This investment
is a mezzanine debt position, and not a direct investment in life science real property.392,000
SF PHASE I78% LEASED$245M mezzanine loan commitment for Alewife Park, a master-planned life
science campus in Cambridge, MA comprised of 3 existing buildings totaling 392,000 SF and
2 pad-ready sites with up to 364,000 SF of development potential High-quality, purpose-built
life science campus owned by IQHQ, Inc. and situated in one of the world’s leading
life science clusters with nearly $800M invested prior to IIPR’s transaction(1) Phase
I is comprised of 3 buildings, totals 392,000 SF and is 78% leased to Lila Sciences, a Cambridge,
MA based AI-enabled next-generation scientific discovery companyPREMIER CLASS A CAMPUS$245M
mezzanine investment expected to yield an average interest rate of 15.8% over the term, subject
to a floor of 14%$111M initial funding and $134M expected to be funded through Q4’27;
potential to expand total investment to $400M at IIPR’s option on the same termsSTRATEGIC
& ACCRETIVE INVESTMENTTotal investment is expected to be funded with cash on hand and
draws on the Company’s revolving credit facilities, and is expected to be highly accretive
to AFFO per shareFurther improves IIPR diversification and increases life science exposure
to 22% of the Company’s income(2)Maturity of Feb. ‘28 with a one-year extension
option Loan is secured by pledged equity interests in the entities that own the Alewife Park
campus
Innovative Industrial Properties 10
STRONG, LOW LEVERAGED
BALANCE SHEET
Debt Overview
Revolving Credit Facilities:
• • $187.5M total commitment, $95.0M available
Term Loans:
• • $128.6M total outstanding
Exchangeable Senior Notes:
• • $402.5M of 6.00% exchangeable senior notes, maturing June 2029
• • Exchangeable for cash, common stock, or a combination (at IIPR’s
option)
14%
Net Debt to Total Gross Assets(1)
1.7x
LQA Net Leverage Ratio (2)
$300M
Liquidity Available (3)
%
Note: As of June 30, 2026, unless otherwise noted. Debt maturities represent the principal balance.
(1) Net Debt to Total Gross Assets is calculated as Net Debt divided by Total Gross Assets. Net Debt is calculated as Gross Debt less total cash and cash equivalents. Gross Debt is calculated as the sum of the principal amount outstanding under the revolving credit facilities, term loans, and exchangeable senior notes. Total Gross
Assets is calculated as total assets plus accumulated depreciation.
(2) LQA Net Leverage Ratio is calculated by dividing Net Debt by Annualized Quarterly Adjusted EBITDA. Annualized Quarterly Adjusted EBITDA is calculated by multiplying the most recently reported quarterly Adjusted EBITDA by four. A complete reconciliation containing adjustments from GAAP net income attributable to
common stockholders to Adjusted EBITDA is included in the “EBITDA Reconciliation” found at the end of this presentation.
(3) Total liquidity consists of cash and cash equivalents and short-term investments (each as reported in IIPR’s consolidated balance sheet as of quarter end) and availability under IIPR’s revolving credit facilities.
(4) Share price per S&P Capital IQ Pro as of 6/30/2026. Gross Debt is calculated as the sum of the principal amount outstanding under the revolving credit facilities, term loans, and exchangeable senior notes.
Debt Maturity Schedule
Capital
Structure(4)
Innovative Industrial Properties 11
STRONG, LONG-TERM AFFO AND
DIVIDEND TRACK RECORD
(1) Adjusted funds from operations (“AFFO”) is a supplemental non-GAAP financial measure used in the real estate industry to measure and compare the operating performance of real estate companies. A complete reconciliation containing adjustments from GAAP net income attributable to common stockholders to
AFFO is included in the “AFFO Reconciliation” found at the end of this presentation.
(2) "CAGR" represents compound annualized growth rate for the relevant metric.
(3) Per S&P Capital IQ Pro as of 6/30/2026. RMZ represents the MSCI US REIT Index.
Total Returns Since IIPR Inception(3)
4.8x
Greater
Return than
RMZ
AFFO AND DIVIDEND TRACK RECORD
Dividends Per Share AFFO Per Share(1)
RMZ
S&P
500
IIPR
Innovative Industrial Properties 12
Cannabis Market Overview
SERVING TWO CORE
GROWTH MARKETS
Life Sciences Market Overview
Cannabis Industry Revenue Comparison(1) Total U.S. & Life Sciences / Biotech Employment Growth(5)
• Market Growth: U.S. legal cannabis sales market reached $29.1 billion in 2025 vs.
a 2% decline for the U.S. Spirits Market to $36.4 billion in the same period(1)
• Federal Rescheduling: April 2026 reclassification of medical cannabis to Schedule
III may remove 280E tax burdens for qualifying operators and potentially improves
cash flow, with additional industry benefits expected as rescheduling progresses
• Expansion of Legalization: Approximately 79% of Americans live in a county
where marijuana is legal for either recreational or medical use and 54% of
Americans live in a state where the recreational use of marijuana is legal(2)
Biotech R&D employment
reached a new record
level in Q1’26
(1) Whitney Economics Cannabis Market Forecast (March 2026), Distilled Spirits Council of the United States, MJBiz Factbook Quarterly Update (Q1 2026).
(2) Pew Research Center (July 2025).
(3) CBRE 2026 U.S. Life Sciences Trends (March 2026).
(4) Cushman & Wakefield Life Sciences Update (February 2026).
(5) U.S. Bureau of Labor Statistics (March 2026). Indexed to 1.0 in March 2021.
• Stabilizing Fundamentals: Tenant demand has returned to pre-pandemic
baseline levels, signaling a durable floor for leasing activity
(3)
• AI & Drug Discovery Expansion: Adoption of AI and increased licensing activity
are accelerating innovation cycles, creating new and expanding occupier demand(4)
• Limited New Supply: Limited future class A new build is expected to tighten
leasing markets as companies continue to expand their U.S. operations
(3)
Innovative Industrial Properties 13
Long Term Growth Outlook
U.S. CANNABIS MARKET
CONTINUES TO GROW
Regulatory Developments & Rescheduling
Industry Revenue Projection(1) Growing U.S. Legalization(4)
(1) Whitney Economics Cannabis Market Forecast (March 2026).
(2) 2020 US Census Data.
(3) Pew Research Center (July 2025).
(4) National Conference of State Legislatures (www.ncsl.org), MJBizDaily (mjbizdaily.com).
Other, N/A
Adult-Use
Medical-Use
$43B
Estimated Legal
Cannabis Sales by
2030(1)
68%
U.S. Population in States
with an IIPR Presence(2)
87%
U.S. adults say marijuana
should be legal at some
level(3)
• FDA-approved cannabis products and state-licensed medical
marijuana was reclassified to Schedule III in April 2026
• State-licensed medical operators may now be eligible for DEA
registration, establishing federal oversight and recognition
• 280E may no longer apply to qualified medical licensees, potentially
driving meaningful cash flow improvement and potential retrospective tax
relief
• DEA will evaluate broader changes to marijuana’s federal status
Innovative Industrial Properties 14
Strong Life Science Rent Premiums vs Office Rents(1)
LIFE SCIENCES
MARKET OPPORTUNITY
Construction Pipeline Decelerating(1)
U.S. Life Sciences Research Funding Stabilizes(1) Drug Approvals
(2)
(1) Cushman & Wakefield Life Sciences Update (February 2026).
(2) U.S. Food and Drug Administration.
Innovative Industrial Properties 15
UNDERWRITING & MONITORING
Diligent underwriting process with a focus on best-in-class operators
Review of
Management
• Experienced
management team
• Alignment of
management within
ownership of the
business
Ability to
Raise Capital
• Evaluation of the macro
environment
surrounding strategic
capital raising in the
tenants’ and borrowers’
prospective markets
• History of successful
capital raising and a cash
balance on hand today
Financial
Underwriting
• Evaluation of financial
projections utilizing
existing knowledge of
industry dynamics
• Detailed review of
financial statements,
strategic initiatives, and
growth plans
Ongoing
Monitoring
• Quarterly financial and
operational review of all
properties
• Meetings with tenants to
talk through operations
and financials
Innovative Industrial Properties 16
Alan Gold
Executive Chairman & Co-Founder
Co-founder of BioMed Realty Trust (formerly NYSE: BMR); served
as Chairman and CEO from inception of its predecessor in 1998
through BMR’s sale in 2016
• Owner and operator of high-quality life science real estate
• Previously publicly traded investment grade REIT
Co-founded Alexandria Real Estate Equities (NYSE: ARE) in
1994 and served as President and a director until 1998
• Invests in office buildings and laboratories leased to life
science and technology companies
Co-founder of IQHQ, Inc.; served as Executive Chairman
from December 2018 until December 2024
• Privately-held life science real estate company with
over $5B of total assets
EXECUTIVE CHAIRMAN
& CO-FOUNDER
Alan Gold has experience founding and leading real estate companies focused on nuanced, regulated industries.
Innovative Industrial Properties 17
David Smith
• 20+ years of finance and real
estate experience
• Former CFO of Aventine Property
Group and New Senior
Investment Group (NYSE: SNR)
CFO and Treasurer
• 35+ years of legal and
regulatory experience
• Previously co-founded Iso Nano
International, LLC
Paul Smithers
President, CEO and Co-Founder
• 20+ years of real estate and
accounting experience
• Former Senior Associate,
Investments and Asset
Management at BioMed Realty
CIO
Catherine Hastings Ben Regin
• 25+ years of accounting and
real estate experience
• Former VP, Internal Audit of
BioMed Realty
COO
Andy Bui
• Former Senior Director,
Financial Reporting at BioMed
Realty
VP, Chief Accounting Officer
• 20+ years legal experience
representing real estate matters
• Former attorney at Foley &
Lardner LLP
SVP, Real Estate Counsel
Tracie Hager Kelly Spicher
• 30+ years of experience in
property management
• Former VP, Property
Management at BioMed Realty
SVP, Asset Management
SENIOR MANAGEMENT TEAM
Innovative Industrial Properties 18
WHY INVEST IN IIPR
Powerful triple
-net lease model with
structured long
-term cash flows
Strong balance sheet with access to growth
capital
Diversified real estate portfolio across 19
states with 35+ tenants
Solid capital allocation track record enabling
robust earnings and dividend distributions
Exposure to two above
-GDP growth markets
in cannabis and life sciences
High
-quality platform, process, and
management team to drive growth
123456
Innovative Industrial Properties 19
APPENDIX
Innovative Industrial Properties 20
Q2 2026 FY 2020
Actual Annualized Actual
Net income attributable to common stockholders $40,665 $162,660 $64,378
Real estate depreciation and amortization 18,799 75,196 28,025
Loss (gain) on sale of real estate, net (11,847) (47,388) —
FFO attributable to common stockholders $47,617 $190,468 $92,403
Financing expense — — 211
Acquisition-related expense — — 94
Litigation-related expense 1,312 5,248 —
Income on seller-financed note(1) 223 892 —
Deferred lease payments received on sales-type leases(2) 525 2,100 —
Transaction costs and other(3) (463) (1,852) —
Normalized FFO attributable to common stockholders 49,214 196,856 92,708
Stock-based compensation 2,826 11,304 3,330
Non-cash interest expense 1,281 5,124 2,040
Non-cash accretion of life science investments (335) (1,340) —
Above-market lease amortization 23 92 —
AFFO attributable to common stockholders $53,009 $212,036 $98,078
FFO per common share – diluted $1.64 $6.56 $4.72
Normalized FFO per common share – diluted $1.70 $6.80 $4.74
AFFO per common share – diluted $1.83 $7.32 $5.01
Weighted average common shares used for FFO, Normalized FFO and AFFO:
Basic 28,443,143 28,443,143 19,443,602
Restricted stock and restricted stock units ("RSUs") 529,228 529,228 114,017
Diluted(4) 28,972,371 28,972,371 19,557,619
AFFO RECONCILIATION
Note: During the year ended December 31, 2025, IIPR revised its presentation of Normalized FFO to include two adjustments related to income on seller-financed notes and deferred lease payments received on sales-type leases that were previously reflected in adjusted funds from operations (“AFFO”), which has been
reflected for all periods presented. Management believes this change better aligns the Company’s presentation with its assessment of core operating performance and improves comparability with industry peers. Items included in calculating FFO that may be excluded in calculating Normalized FFO include certain
transaction-related gains, losses, income or expense or other non-core amounts as they occur.
(1) Amounts represent non-refundable cash payments received pursuant to a seller-financed note issued by us in connection with our disposition of a certain property. As the transaction did not qualify for recognition as completed sales under GAAP, the payments were recorded as a deposit liability and included in
other liabilities on our consolidated balance sheet.
(2) Amount reflects the non-refundable lease payments received on two sales-type leases which are recognized as a deposit liability starting on January 1, 2024, and is included in other liabilities in our consolidated balance sheet as of June 30, 2026, as the transaction did not qualify for recognition as a completed sale.
(3) Amount reflects other items that are considered to be infrequent and unusual in nature and/or not related to our core real estate operation. For the three months ended June 30, 2026, amount reflects certain financing costs that were not capitalizable and write-off of certain liabilities.
(4) For the three months ended June 30, 2026, amounts exclude 1,019,877 weighted-average shares potentially issuable upon exchange of the Exchangeable Notes under the if-converted method.
Innovative Industrial Properties 21
EBITDA RECONCILIATION
(1) Amounts represent non-refundable cash payments received pursuant to a seller-financed note issued by us in connection with our disposition of a certain property. As the transaction did not qualify for recognition as completed sales under GAAP, the payments were recorded as a deposit liability and included in
other liabilities on our consolidated balance sheet.
(2) Amount reflects the non-refundable lease payments received on two sales-type leases which are recognized as a deposit liability starting on January 1, 2024, and is included in other liabilities in our consolidated balance sheet as of June 30, 2026, as the transaction did not qualify for recognition as a completed sale.
(3) Amount reflects other items that are considered to be infrequent and unusual in nature and/or not related to our core real estate operation. For the three months ended June 30, 2026, amount reflects certain financing costs that were not capitalizable and write-off of certain liabilities.
Q2 2026
(In thousands) Actual Annualized
Net Income: $43,852 $175,408
Adjustments for EBITDA:
Interest expense 8,348 33,392
Taxes (including corporate tax expense in G&A) 66 264
Depreciation and amortization expense 18,799 75,196
Above-market lease amortization 23 92
Non-cash accretion of life science investments (335) (1,340)
Corp. asset depreciation (included in G&A expense) 24 96
EBITDA $70,777 $283,108
Adjustments for Adjusted EBITDA:
Non-cash stock-based compensation expense 2,826 11,304
Loss (gain) on sale of real estate, net (11,847) (47,388)
Income on seller-financed notes(1) 223 892
Deferred lease payments received on sales-type leases(2) 525 2,100
Transaction costs and other(3) (463) (1,852)
Adjusted EBITDA $62,041 $248,164
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- Definition
The exact name of the entity filing the report as specified in its charter, which is required by forms filed with the SEC.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
+ Details
Name:
dei_EntityRegistrantName
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- Definition
The Tax Identification Number (TIN), also known as an Employer Identification Number (EIN), is a unique 9-digit value assigned by the IRS.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
+ Details
Name:
dei_EntityTaxIdentificationNumber
Namespace Prefix:
dei_
Data Type:
dei:employerIdItemType
Balance Type:
na
Period Type:
duration
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- Definition
Local phone number for entity.
+ References
No definition available.
+ Details
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dei_LocalPhoneNumber
Namespace Prefix:
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Period Type:
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- Definition
Boolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 13e
-Subsection 4c
+ Details
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dei_PreCommencementIssuerTenderOffer
Namespace Prefix:
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Period Type:
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- Definition
Boolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 14d
-Subsection 2b
+ Details
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Namespace Prefix:
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Data Type:
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Balance Type:
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- Definition
Title of a 12(b) registered security.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b
+ Details
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Data Type:
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Balance Type:
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Period Type:
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- Definition
Name of the Exchange on which a security is registered.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection d1-1
+ Details
Name:
dei_SecurityExchangeName
Namespace Prefix:
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Data Type:
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Balance Type:
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Period Type:
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X
- Definition
Boolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as soliciting material pursuant to Rule 14a-12 under the Exchange Act.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 14a
-Subsection 12
+ Details
Name:
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Data Type:
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Balance Type:
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Period Type:
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- Definition
Trading symbol of an instrument as listed on an exchange.
+ References
No definition available.
+ Details
Name:
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Namespace Prefix:
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Data Type:
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Balance Type:
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Period Type:
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- Definition
Boolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as written communications pursuant to Rule 425 under the Securities Act.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Securities Act
-Number 230
-Section 425
+ Details
Name:
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- Details
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- Details
Name:
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