Exhibit 4.1

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LEASEHOLD DEED OF TRUST, SECURITY AGREEMENT AND FIXTURE FILING

TAUBMAN CHERRY CREEK SHOPPING CENTER, L.L.C. , as grantor

c/o The Taubman Company LLC

200 East Long Lake Road, Ste. 300

Bloomfield Hills, Michigan 48304,

(Borrower)

to

THE PUBLIC TRUSTEE OF THE CITY AND COUNTY OF DENVER, COLORADO ,

as trustee

(Trustee)

for the benefit of

METROPOLITAN LIFE INSURANCE COMPANY , as beneficiary

10 Park Avenue

PO Box 1902

Morristown, New Jersey 07962,

and

THE PRUDENTIAL INSURANCE COMPANY OF AMERICA , as beneficiary

c/o Prudential Asset Resources, Inc.

2100 Ross Avenue, Suite 2500

Dallas, Texas 75201

Attention:  Asset Management Department

Prudential Loan No. 706110059,

(collectively, Lender)

______________________________

Dated:      As of May 6, 2016

3000 East 1st Avenue

Denver, Colorado

County:      The City and County of Denver

State:      Colorado

______________________________

PREPARED BY AND UPON

RECORDATION RETURN TO:

Hunton & Williams LLP

200 Park Avenue

New York, New York 10166

Attention: Peter J. Mignone, Esq.

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EXHIBITS

EXHIBIT “A”: Property Description

EXHIBIT “B”: Leasing Guidelines

EXHIBIT “C”: Schematic Diagram of Organizational Structure

EXHIBIT “D”: Intentionally Omitted

EXHIBIT “E”: Form of Tenant Direction Letter

EXHIBIT “F”:      Form of Termination Letter

LEASEHOLD DEED OF TRUST, SECURITY AGREEMENT AND FIXTURE FILING

DEFINED TERMS

THIS LEASEHOLD DEED OF TRUST, SECURITY AGREEMENT AND FIXTURE FILING (this “ Security Instrument ”) is made as of the Execution Date by Borrower, as grantor, to the Public Trustee of the City and County of Denver, Colorado, as trustee, for the benefit of Lender, as beneficiary, with reference to the following Recitals:

RECITALS

A.      This Security Instrument secures: (1) the payment of the indebtedness evidenced by the Note with interest at the rates set forth in the Note, together with all renewals, modifications, consolidations and extensions of the Note, all additional advances or fundings made by Lender, and any other amounts required to be paid by Borrower under any of the Loan Documents, (collectively, the “ Secured Indebtedness ”, and sometimes referred to as the “ Loan ”) and (2) the full performance by Borrower of all of the terms, covenants and obligations set forth in any of the Loan Documents.

B.      Borrower makes the following covenants and agreements for the benefit of Lender or any prospective purchaser of the Loan Documents, the Guaranty and the Unsecured Indemnity Agreement, or participant in the Loan as contemplated in this Security Instrument (all of which are collectively referred to as “ Lender ”).

NOW, THEREFORE, IN CONSIDERATION of the Recitals and for other good and valuable consideration, the receipt and sufficiency of which are acknowledged, Borrower agrees as follows:

GRANT OF SECURITY

Section 1.01 REAL PROPERTY GRANT . Borrower irrevocably grants, sells, conveys, transfers, assigns and warrants to Trustee, in trust, with power of sale and right of entry and possession for the benefit of Lender, its successors and assigns, all of Borrower’s present and future estate, right, title and interest in and to the following which are collectively referred to as the “ Real Property ”:

(a) Borrower’s interest in the leasehold estate created by virtue of the Ground Lease in and to that certain real property located in the County and State which is more particularly described in Exhibit ”A” attached to this Security Instrument or any portion of the real property; all modifications, extensions and renewals of the Ground Lease; and all credits, deposits (including, without limitation, any deposit of cash or securities or any other property which may be held to secure Borrower’s performance of its obligations under the Ground Lease), options, privileges and rights of Borrower as tenant under the Ground Lease, including, but not limited to, the right, if any, to renew or extend the Ground Lease for a succeeding term or terms and also including all the right, title, claim or demand whatsoever of Borrower either in law or in equity, in possession or expectancy, of, in and to Borrower’s right, as tenant under the Ground Lease, to elect under Section 365(h)(1) of Title 11 U.S.C.A. § 101 et seq. and the regulations adopted and promulgated thereto (as the same may be amended from time to time, the “Bankruptcy Code”) to terminate or treat the Ground Lease as terminated or to consent to the transfer of the Ground Lessor’s interest in the Land and the Improvements free and clear of the Ground Lease under Section 363 of the Bankruptcy Code in the event (i) of the bankruptcy, reorganization or insolvency of the Ground Lessor, and (ii) (A) the rejection of the Ground Lease by such Ground Lessor, as debtor in possession, or by a trustee for such Ground Lessor, pursuant to Section 365 of the Bankruptcy Code or (B) any attempt by such Ground Lessor, as debtor in possession, or by a trustee for such Ground Lessor, to transfer such Ground Lessor’s interest in the Land and

the Improvements under Section 363 of the Bankruptcy Code and all the estate, right, title, claim or demand whatsoever of Borrower either in law or in equity, in possession or expectancy, of, in and to the Property or any part thereof; all easements, rights‑of‑way, gaps, strips and gores of land; streets and alleys; sewers and water rights; privileges, licenses, tenements, and appurtenances appertaining to the real property, and the reversion(s), remainder(s), and claims of Borrower with respect to these items, and the benefits of any existing or future conditions, covenants and restrictions affecting the real property (collectively, the “ Land ”);

(b) all things now or hereafter affixed to or placed on the Land, including all buildings, structures and improvements, all fixtures and all machinery, elevators, boilers, building service equipment (including, without limitation, all equipment for the generation or distribution of air, water, heat, electricity, light, fuel or for ventilating or air conditioning purposes or for sanitary or drainage purposes or for the removal of dust, refuse or garbage), partitions, appliances, furniture, furnishings, building materials, supplies, computers and software, window coverings and floor coverings, lobby furnishings, and other property now or in the future attached, or installed in the improvements and all replacements, repairs, additions, or substitutions to these items (collectively, the “ Improvements ”);

(c) all present and future income, rents, revenue, profits, proceeds, accounts receivable, security deposits, and other benefits from the Land and/or Improvements and all deposits made with respect to the Land and/or Improvements, including, but not limited to, any security given to utility companies by Borrower, any advance payment of real estate taxes or assessments, or insurance premiums made by Borrower and all claims or demands relating to such deposits and other security, including claims for refunds of tax payments or assessments, and all insurance proceeds payable to Borrower in connection with the Land and/or Improvements whether or not such insurance coverage is specifically required under the terms of this Security Instrument (all of the items set forth in this paragraph are referred to collectively as “ Rents and Profits ”);

(d) all damages, payments and revenue of every kind that Borrower may be entitled to receive, from any person owning or acquiring a right to the oil, gas or mineral rights and reservations of the Land;

(e) all proceeds and claims arising on account of any damage to, or Condemnation (as hereinafter defined) of any part of the Land and/or Improvements, and all causes of action and recoveries for any diminution in the value of the Land and/or Improvements;

(f) all licenses, contracts, management agreements, guaranties, warranties, franchise agreements, permits, or certificates relating to the ownership, use, operation or maintenance of the Land and/or Improvements; and

(g) all names by which the Land and/or Improvements may be operated or known, and all rights to carry on business under those names, and all trademarks, trade names, and goodwill relating to the Land and/or Improvements.

TO HAVE AND TO HOLD the Real Property, unto and to Trustee for the use and benefit of Lender, and its successors and assigns, forever subject to the terms, covenants and conditions of this Security Instrument.

WITH POWER OF SALE (to the extent permitted by applicable law), to secure the payment to Lender of the indebtedness secured hereby and performance of the other obligations of the Loan Documents at the time and in the manner provided for in the Note, this Security Instrument and the other Loan Documents;

Section 1.02 PERSONAL PROPERTY GRANT . Borrower irrevocably grants, assigns, sells, transfers, conveys and warrants to Lender, its successors and assigns, a security interest in Borrower’s interest in all personal property in all of its forms that Borrower now or hereafter owns or in which Borrower now or hereafter acquires an interest or right, including, without limitation, those in which Borrower has an interest in mass or a joint or other interest or right of any kind, those which are now or hereafter located on or affixed to the Real Property, and those in transit thereto or in any other location, or used or useful in the operation, use or occupancy of the Real Property or the construction of any improvements thereon, including, without limitation, all of Borrower’s right, title and interest in and to the following items (expressly excluding, however, trade fixtures and other personal property of tenants of the Real Property), all of which are collectively referred to as “ Personal Property ”:

(a)    any portion of the Real Property which may be personal property, and all other personal property, whether now existing or acquired in the future which is attached to, appurtenant to, or used in the construction or operation of, or in connection with, the Real Property;

(b)     all rights to the use of water, including water rights appurtenant to the Real Property, pumping plants, ditches for irrigation, all water stock or other evidence of ownership of any part of the Real Property that is owned by Borrower in common with others and all documents of membership in any owner’s association or similar group;

(c)     all plans and specifications prepared for construction of the Improvements, and all contracts and agreements of Borrower relating to the plans and specifications or to the construction of the Improvements;

(d)     all art work located on or used in connection with the Real Property or its occupation or occupancy;

(e)     all equipment, furniture, furnishings, appliances, machinery, fixtures, goods and other personal property, at any time located on or used in connection with the Real Property;

(f)     all sales agreements, deposits, escrow agreements, other documents and agreements entered into with respect to the sale of any part of the Real Property, and all proceeds of the sale;

(g)     all leases, license agreements, tenant security deposits, policies of insurance, accounts (including, without limitation, any escrow account described in this Security Instrument and all sums on deposit therein), documents, instruments and chattel paper, and other agreements and rights relating to the Real Property, and other general intangibles, including but not limited to all rights under that certain Construction, Operation and Reciprocal Easement Agreement dated as of January 30, 1989 and recorded as Instrument No. R-89-0018519 in the records of City and County of Denver, Colorado, by and among Taubman-Cherry Creek Limited Partnership, a Colorado limited partnership (“Initial Developer”), May, Saks Fifth Avenue, Inc., a Massachusetts corporation (“Saks”), Adcor Realty Corp, a New York corporation, and Neiman, as assigned and/or amended by: First Amendment to Construction, Operation and Reciprocal Easement Agreement dated as of June 5, 1998, by and among Initial Developer, May, Neiman, and Saks; Second Amendment to Construction, Operation and Reciprocal Easement Agreement dated as of May 19, 2005 and recorded February 6, 2006 as Instrument No. 2006023329 in the records of the City and County of Denver, Colorado, by and among Initial Developer, May, Nordstrom, Neiman, and Saks; Supplement to Construction, Operation and Reciprocal Easement Agreement dated as of May 19, 2005, by and among Initial Developer, May, Nordstrom, and Neiman; Assignment and Assumption of COREA dated May 11, 2006 and recorded May 16, 2006 as Instrument No. 2006078035 in the records of City and County of Denver, Colorado,

by and between Initial Developer and Borrower; Third Amendment to Construction, Operation and Reciprocal Easement Agreement dated as of October 31, 2006 and recorded December 8, 2006 as Instrument No. 2006195435 in the records of the City and County of Denver, Colorado, by and among Borrower, Federated Retail Holdings, Inc., a New York corporation (f/k/a May), Nordstrom, Neiman, and Saks; Assignment and Assumption Agreement dated as of March 31, 2011 and recorded April 5, 2011 as Instrument No. 2011036615 in the records of the City and County of Denver, Colorado, by and between Saks and Borrower; and Fourth Amendment to Construction, Operation and Reciprocal Easement Agreement dated as of May 15, 2014 and recorded July 14, 2014 as Instrument No. 2014083490 in the records of the City and County of Denver, Colorado, by and among Borrower, Macy’s West Stores, Inc., an Ohio corporation f/k/a Federated Retail Holdings, Inc., Nordstrom, and The Neiman Marcus Group LLC, a Delaware limited liability company (together with all amendments, modifications, replacements, substitutions and restatements thereof, the “ REA ”), all governmental permits relating to construction or other activities on the Real Property, all names under or by which the Real Property may at any time be operated or known, including, without limitation, the name “The Cherry Creek Shopping Center” and any similar name, all rights to carry on business under any such names, or any variant thereof, all trade names, trademarks and franchises relating in any way to the Real Property, all good will in any way relating to the Real Property, all licenses and permits relating in any way to, or to the operation of, the Real Property, all contractual rights, all options, all purchase orders, all manufacturers’ warranties with respect to improvements, all construction contracts, all maintenance contracts, all service contracts and all of Borrower’s claims and rights arising under or pursuant to Section 365 of the Bankruptcy Code, 11 U.S.C. § 365; and

(h) all proceeds from the voluntary or involuntary disposition or claim respecting any of the foregoing items (including, without limitation, judgments, condemnation awards or otherwise) and all substitutions, replacements of, and additions to, any of the foregoing items.

All of the Real Property and the Personal Property are collectively referred to as the “ Property .”

Section 1.03 SATISFACTION AND RELEASE . If Borrower shall pay to Lender the Secured Indebtedness, at the times and in the manner stipulated in the Loan Documents, then this Security Instrument shall be satisfied and released of record by Lender in accordance with the laws of the State. Provided that all of the Assignment Conditions (as hereinafter defined) are satisfied, Lender agrees, upon request of Borrower, in lieu of executing a satisfaction and release of this Security Instrument, to assign this Security Instrument, without recourse, representation or warranty of any kind (other than that the Lender is the holder of the Security Instrument and is authorized to transfer the same) to any financial institution or other lender designated by Borrower. As used herein, the term “ Assignment Conditions ” shall mean all of the following: (i) Borrower shall have paid to Lender a non-refundable processing fee of $2,500.00 plus all of the reasonable out-of-pocket costs and expenses of Lender in connection with the proposed assignment of the Security Instrument and all related documents (including, without limitation, reasonable attorneys’ fees and disbursements); (ii) the request for assignment by Borrower is made not less than thirty (30) days (and not more than (90) days) prior to the date of the proposed payoff of the Loan; (iii) the form of the Assignment of Security Instrument and Allonge to the Note are reasonably satisfactory to Lender (and contain only those representations set forth in this Section 1.03 ); (iv) Borrower pays all transfer tax, mortgage recording tax, documentary stamp or intangibles tax due in connection with the assignment of the Security Instrument or other assignment documents being executed by Lender; (v) Borrower and Liable Party execute a release, with respect to the Loan and the Loan Documents, of Lender in such form as shall be reasonably required by Lender; and (vi) Lender is permitted by applicable federal or state law to assign the Security Instrument (it being understood that if there is any legal requirement to obtain consent prior to assignment, then in no event shall Lender be obligated to assign the Security Instrument until such time as consent is obtained).

ARTICLE II

BORROWER REPRESENTATIONS, WARRANTIES AND COVENANTS

Section 2.01 BORROWER REPRESENTATIONS AND WARRANTIES . Borrower represents and warrants, and as applicable, covenants as follows:

(a) Organization . Each of Borrower, Liable Party and each SPE Entity has been duly organized and each is validly existing and in good standing with requisite power and authority to own its properties and to transact the businesses in which it is now engaged. Each of Borrower, Liable Party and each SPE Entity has been duly qualified to do business and each 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 and each SPE Entity 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 (i) the sole business of Borrower is the ownership, management and operation of the Property and any TRS Subsidiary (if established pursuant to the terms hereof), (ii) the sole business of any TRS Subsidiary is owning and operating the TRS Subsidiary Business and entering into the TRS Subsidiary Loan Documents and (iii) the sole business of any SPE Entity is the ownership, management and operation of an ownership interest in Borrower. The organizational structure of Borrower is accurately depicted by the schematic diagram attached hereto as Exhibit “C” . In addition to the ownership interests in Cherry Creek Holdings LLC, TRG owns interests in other entities.

(b) Proceedings . Each of Borrower and Liable Party has taken all necessary action to authorize the execution, delivery and performance of this Security Instrument, the Guaranty, the Unsecured Indemnity Agreement, and any other Loan Documents to which it is a party. This Security Instrument and any other Loan Documents, the Guaranty and the Unsecured Indemnity Agreement have been duly executed and delivered by or on behalf of Borrower and Liable Party, as applicable, and constitute legal, valid and binding obligations of Borrower and Liable Party, as applicable, enforceable against Borrower and Liable Party, 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).

(c) No Conflicts . The execution, delivery and performance of this Security Instrument, the other Loan Documents, the Guaranty and the Unsecured Indemnity Agreement by Borrower and Liable Party, 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, the Guaranty or the Unsecured Indemnity Agreement) upon any of the property or assets of Borrower pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, partnership agreement or other agreement or instrument to which Borrower, Liable Party or any SPE Entity is a party or by which any of Borrower’s, Liable Party’s, or any SPE Entity’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 Governmental Authority having jurisdiction over Borrower, Liable Party or any SPE Entity or any of Borrower’s, Liable Party’s or any SPE Entity’s properties or assets, and any consent, approval, authorization, order, registration or qualification of or with any Governmental Authority required for the execution, delivery and performance by Borrower and Liable Party of this Security Instrument, the other Loan Documents, the Guaranty and the Unsecured Indemnity Agreement, as applicable, has been obtained and is in full force and effect.

(d) 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 the best of Borrower’s knowledge, threatened against or affecting Borrower, Liable Party, any SPE Entity, or the Property, which actions, suits or proceedings, if determined against Borrower, Liable Party, such SPE Entity, or the Property, are reasonably likely to materially and adversely affect the condition (financial or otherwise) or business of Borrower, Liable Party, or such SPE Entity, or the condition or operation of the Property.

(e) Agreements . Neither Borrower nor any SPE Entity is a party to any agreement or instrument or subject to any restriction which is reasonably likely to materially and adversely affect Borrower or any SPE Entity, the Property, or Borrower’s or any SPE Entity’s business, properties or assets, operations or condition, financial or otherwise. Neither Borrower nor any SPE Entity 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, any SPE Entity or the Property is bound. Neither Borrower nor any SPE Entity has any material financial obligation (contingent or otherwise) under any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which Borrower or any SPE Entity is a party or by which Borrower or any SPE Entity or the Property is otherwise bound, other than, in the case of Borrower, (i) obligations incurred in the ordinary course of the operation of the Property subject to Section 2.10 hereof and (ii) obligations under the Loan Documents and the Unsecured Indemnity Agreement.

(f) Title . Borrower has good, marketable and insurable leasehold title to the real property comprising the Property and good title to the balance of the Property, free and clear of all Liens (other than mechanics liens which are being insured over in the Lender’s title policy) whatsoever except the Permitted Exceptions, such other Liens as are permitted pursuant to the Loan Documents and the Unsecured Indemnity Agreement (if any) and the Liens created by the Loan Documents and the Unsecured Indemnity Agreement (if any). The Permitted Exceptions in the aggregate do not materially and adversely affect the value, operation or use of the Property (as currently used) or Borrower’s ability to repay the Loan. The Security Instrument, when properly recorded in the appropriate records, together with any U.C.C. financing statements required to be filed in connection therewith, will create (a) a valid, perfected first mortgage lien on the Property, subject only to Permitted Exceptions and the Liens created by the Loan Documents and the Unsecured Indemnity Agreement (if any) and (b) 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 Exceptions, such other Liens as are permitted pursuant to the Loan Documents, the Guaranty, and the Unsecured Indemnity Agreement (if any) and the Liens created by the Loan Documents, the Guaranty, and the Unsecured Indemnity Agreement (if any). To the best of Borrower’s knowledge, 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 Loan Documents, the Guaranty, and the Unsecured Indemnity Agreement (if any).

(g) No Bankruptcy Filing . None of Borrower, Liable Party, any SPE Entity or Manager 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 knowledge of any Person contemplating the filing of any such petition against it or against Liable Party, any SPE Entity or Manager.

(h) Full and Accurate Disclosure . No statement of fact made by Borrower in this Security Instrument or in any of the other Loan Documents or the Unsecured Indemnity Agreement contains any untrue statement of a material fact or omits to state any material fact necessary to make statements contained herein or therein not misleading. There is no material fact presently known to Borrower which has not been

disclosed to Lender which adversely affects the Property or the business, operations or condition (financial or otherwise) of Borrower.

(i) No Plan Assets .

(A) Lender has advised Borrower and Borrower hereby acknowledges that, as of the date hereof, the source of funds from which Lender is extending the Loan evidenced by the Note will include one or more of the following accounts: (I) an “insurance company general account,” as that term is defined in Prohibited Transaction Class Exemption (“ PTE ”) 95-60 (60 Fed. Reg. 35925 (Jul. 12, 1995)), as to which Lender meets the conditions for relief in Sections I and IV of PTE 95-60; (II) pooled and single client insurance company separate accounts, which are subject to the provisions of ERISA; and (III) one or more insurance company separate accounts maintained solely in connection with fixed contractual obligations of the insurance company, under which the amounts payable or credited to the plan are not affected in any manner by the investment performance of the separate account.

(B) Borrower represents and warrants to Lender and covenants that (I) Borrower is not, and shall not be, an “employee benefit plan” as defined in Section 3(3) of ERISA, or a “governmental plan” within the meaning of Section 3(32) of ERISA; (II) Borrower is not, and shall not be, a “party in interest”, as defined in Section 3(14) of ERISA, other than as a service provider or an affiliate of a service provider, to any employee benefit plan that has invested in a separate account described in (A)(II) above, from which funds have been derived to make the Loan, or if so, the execution of the Loan Documents and making of the Loan thereunder do not constitute nonexempt prohibited transactions under ERISA; (III) Borrower is not, and shall not be, subject to state statutes regulating investments and fiduciary obligations with respect to governmental plans, or if subject to such statutes, is not in violation thereof in the execution of the Loan Documents and the making of the Loan thereunder; (IV) the assets of Borrower do not and shall not constitute “plan assets” of one or more plans within the meaning of 29 C.F.R. Section 2510.3-101; or (V) one or more of the following circumstances is and shall remain true: (1) equity interests in Borrower are publicly offered securities, within the meaning of 29 C.F.R. Section 2510.3-101(b)(2); (2) less than twenty-five percent (25%) of all equity interests in Borrower are held by “benefit plan investors” within the meaning of 29 C.F.R. Section 2510.3-101(f)(2); or (3) Borrower qualifies as an “operating company,” a “venture capital operating company” or a “real estate operating company” within the meaning of 29 C.F.R. Section 2510.3-101(c), (d) or (e), respectively.

(C) Borrower represents, warrants and covenants that neither Borrower nor any ERISA Affiliate maintains, contributes to or has any liability (contingent or otherwise) with respect to an “employee benefit plan” as defined by Section 3(3) of ERISA, which is subject to Section 302 or Title IV of ERISA or Section 412 of the Code.

(D) Borrower shall deliver to Lender such certifications and/or other evidence periodically requested by Lender, in its reasonable discretion, to verify the representations and warranties in paragraphs (B) and (C) above. Failure to deliver these certifications or evidence, breach of these representations and warranties, or consummation of any transaction which would cause this Instrument or any exercise of Lender’s rights under this Security Instrument to (A) constitute a non-exempt prohibited transaction under ERISA or (B) violate ERISA or any state statute regulating governmental plans (collectively, a “ Violation ”), shall be an Event of Default. Notwithstanding anything in the Loan Documents to the contrary,

no sale, assignment, or transfer of any direct or indirect right, title, or interest in Borrower or the Property (including creation of a junior lien, encumbrance or leasehold interest) shall be permitted which would negate Borrower’s representations in this Section 2.01(i) or cause a Violation. By virtue of the consummation of any of the foregoing, Borrower and the proposed transferee or lienholder shall be deemed to have made in favor of Lender (x) a certification that the representations and warranties of this Section 2.01(i) will be true after consummation and (y) an agreement to comply with this Section 2.01(i) .

(j) Compliance . Borrower and the Property and the use thereof comply in all material respects with all applicable Requirements, including, without limitation, building and zoning ordinances and codes and Prescribed Laws. To the best of Borrower’s knowledge, Borrower is not in default or violation of any order, writ, injunction, decree or demand of any Governmental Authority. To the best of Borrower’s knowledge, there has not been committed by Borrower any act or omission affording the federal government or any other Governmental Authority the right of forfeiture as against the Property or any part thereof or any monies paid in performance of Borrower’s obligations under any of the Loan Documents and the Unsecured Indemnity Agreement.

(k) Financial Information . All financial data of Borrower, including, without limitation, the statements of cash flow and income and operating expense, that have been delivered to Lender by Borrower in respect of the Property (i) are true, complete and correct in all material respects, (ii) fairly represent the financial condition of the Property 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 GAAP throughout the periods covered, except as disclosed therein. Borrower does not have any contingent liabilities, liabilities for taxes, unusual forward or long-term commitments or unrealized or anticipated losses from any unfavorable commitments that are known to Borrower and likely to have a materially adverse effect on the Property or the operation thereof as a retail shopping center, except as referred to or reflected in said financial statements. Since the date of such financial statements, there has been no materially adverse change in the financial condition, operations or business of Borrower from that set forth in said financial statements.

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

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

(n) Utilities and Public Access . The Property has rights of access to public ways and is served by water, sewer, sanitary sewer and storm drain facilities adequate to service the Property for its intended uses. All utilities necessary to the existing use of the Property are located either in the public right-of-way abutting the Property (which are connected so as to serve the Property without passing over other property) or in recorded easements serving the Property and such easements are set forth in and insured by the Title Insurance Policy. All roads necessary for the use of the Property for its current purposes have been completed and, if necessary, dedicated to public use.

(o) Not a Foreign Person . Borrower is not a “foreign person” within the meaning of § 1445(f)(3) of the Code.

(p) Separate Lots . The Property is comprised of one (1) or more parcels which constitute a separate tax lot or lots and does not constitute a portion of any other tax lot not a part of the Property.

(q) Assessments . To the best of Borrower’s knowledge, 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.

(r) Enforceability . This Security Instrument, the other Loan Documents, the Guaranty, and the Unsecured Indemnity Agreement are not subject to any existing right of rescission, set-off, counterclaim or defense by Borrower or Liable Party, including the defense of usury, nor would the operation of any of the terms of the Loan Documents, the Guaranty, or the Unsecured Indemnity Agreement, or the exercise of any right thereunder, render this Security Instrument or the other Loan Documents, the Guaranty, or the Unsecured Indemnity Agreement, unenforceable, and Borrower and Liable Party have not asserted any right of rescission, set-off, counterclaim or defense with respect thereto.

(s) No Prior Assignment . There are no prior assignments of the Leases or any portion of the rents due and payable or to become due and payable which are presently outstanding, other than those assigned to Lender concurrently herewith.

(t) Insurance . Borrower has obtained and has delivered to Lender copies of all policies reflecting the insurance coverages (or such other documents evidencing coverage as are permitted under Section 3.01 hereof), amounts and other requirements set forth in this Security Instrument. Borrower has not, and to the best of Borrower’s knowledge, no Person has, done by act or omission anything which would impair the coverage of any such policy.

(u) Use of Property . The Property is used exclusively for retail and commercial purposes and other appurtenant and related uses.

(v) Certificate of Occupancy; Licenses . To the best of Borrower’s knowledge, all certifications, permits, licenses and approvals, including without limitation, certificates of completion and occupancy permits required of Borrower for the legal use, occupancy and operation of the Property as a retail shopping center (collectively, the “ Licenses ”), have been obtained and are in full force and effect. Borrower shall keep and maintain all Licenses necessary for the operation of the Property as a retail shopping center. The use being made of the Property is in conformity with the certificate of occupancy issued for the Property.

(w) Flood Zone . Except as shown on the Survey, none of the Improvements on the Property are located in an area as identified by the Federal Emergency Management Agency as an area having special flood hazards.

(x) Physical Condition . To the best of Borrower’s knowledge and except as expressly disclosed in the Physical Conditions Report, the Property, including, without limitation, all buildings, Improvements, parking facilities, sidewalks, storm drainage systems, roofs, plumbing systems, HVAC systems, fire protection systems, electrical systems, equipment, elevators, exterior sidings and doors, landscaping, irrigation systems and all structural components, is in good condition, order and repair in all material respects; to the best of Borrower’s knowledge and except as disclosed in the Physical Conditions Report, there exists no structural or other material defects or damages in the Property, whether latent or

otherwise, and Borrower has not received written notice from any insurance company or bonding company of any defects or inadequacies in the Property, or any part thereof, which would adversely affect the insurability of the same or cause the imposition of extraordinary premiums or charges thereon or of any termination or threatened termination of any policy of insurance or bond.

(y) Leases . The Property was not subject to any Leases or License Agreements as of May 2, 2016 other than the Leases described in the certified rent roll delivered in connection with the closing of the Loan on the Execution Date and those License Agreements described in the certified schedule of License Agreements delivered in connection with the closing of the Loan on the Execution Date and those subleases or concession agreements that have been entered into by any tenant at the Property. Such certified rent roll and certified schedule of License Agreements are each true, complete and correct in all material respects as of the date set forth therein. No Person has any possessory interest in the Property or right to occupy the same except under and pursuant to the provisions of the Leases, the REA or a License Agreement. The certified schedule of tenant security deposits delivered in connection with the closing of the Loan on the Execution Date sets forth the security deposits held by or on behalf of Borrower as of May 2, 2016, for any tenants under any Leases and any licensees under any License Agreements. The current Leases are in full force and effect and to the best of Borrower’s knowledge, there are no material defaults thereunder as of May 2, 2016 by either party thereto (other than as expressly disclosed on the certified schedule of tenants in material default delivered in connection with the closing of the Loan on the Execution Date) and there are no conditions that, with the passage of time or the giving of notice, or both, would constitute material defaults thereunder. No rent has been paid more than one (1) month in advance of its due date, except as disclosed on an estoppel certificate delivered to Lender in connection with the closing of the Loan on or before the Execution Date. There has been no prior sale, transfer or assignment, hypothecation or pledge by Borrower of any Lease or of the rents received therein, which will be outstanding following the Execution Date. No tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the Property of which the leased premises are a part. To the best of Borrower’s knowledge, and except as expressly disclosed to Lender in the Environmental Report, no hazardous wastes or toxic substances, as defined by applicable federal, state or local statutes, rules and regulations, have been disposed, stored or treated by any tenant under any Lease on or about the Property of which the leased premises are a part, nor does Borrower have any knowledge of any tenant’s intention to use its leased premises for any activity which, directly or indirectly, involves the use, generation, treatment, storage, disposal or transportation of any petroleum product or any toxic or hazardous chemical, material, substance or waste, except in either event, in compliance with applicable federal, state or local statutes, rules and regulations.

(z) REA . The REA is in full force and effect and neither Borrower nor, to Borrower’s knowledge, any other party to the REA, is in default thereunder, and to the best of Borrower’s knowledge, there are no conditions which, with the passage of time or the giving of notice, or both, would constitute a default thereunder. Except as set forth in the definition of “REA” or disclosed on an estoppel certificate with regards to the REA delivered to Lender in connection with the closing of the Loan on or before the Execution Date, the REA has not been modified, amended or supplemented. Borrower shall not, (i) prior to a Securitization, cancel, terminate, modify or amend in any material way the REA without the approval of Lender, which approval shall not be unreasonably withheld or delayed with respect to amendments or modifications to the REA or (ii) after a Securitization, modify or amend the REA, if such modification or amendment would have a material adverse effect on the value (including, without limitation, the net operating income) of the Property, taken as a whole or the use or operation of the Property or the ability of Borrower to pay its obligations in respect of a Loan. Subject to the terms above, Lender shall subordinate the lien of the Security Instrument to the REA as so amended, if Lender consented to the amendment to the REA or if Lender’s consent is not required for such amendment.

(aa) Principal Place of Business; State of Organization . Borrower’s business is primarily conducted at the Property. Borrower’s principal place of business as of the Execution Date is the address set forth in the introductory paragraph of this Security Instrument and the organizational and financial records of Borrower are kept at the address set forth in the introductory paragraph. Each of Borrower and each SPE Entity is organized under the laws of the State of Delaware.

(bb)     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 Requirements currently in effect in connection with the transfer of the Property to Borrower have been paid. All mortgage, mortgage recording, stamp, intangible or other similar tax required to be paid by any Person under applicable Requirements currently in effect in connection with the execution, delivery, recordation, filing, registration, perfection or enforcement of this Security Instrument, any of the other Loan Documents, the Guaranty, or the Unsecured Indemnity Agreement have been paid, and, under current Requirements, the Security Instrument is enforceable in accordance with its terms by Lender (or any subsequent holder thereof).

(cc)     Management Agreement . The Management Agreement is in full force and effect and there is no default thereunder by any party thereto and no event has occurred that, with the passage of time and/or the giving of notice would constitute a default thereunder. Manager manages other commercial properties.

(dd)     Illegal Activity . No portion of the Property has been or will be purchased with proceeds of any illegal activity.

(ee)     No Change in Facts or Circumstances; Disclosure . All financial statements and rent rolls submitted by Borrower in connection with the Loan are accurate, complete and correct in all material respects as of the date set forth therein. All other written information, reports, certificates and other documents submitted by Borrower to Lender in connection with the Loan are, to the best of Borrower’s knowledge, accurate and correct in all material respects. Except with respect to such representations and warranties contained in this Security Instrument, any other Loan Document or the Unsecured Indemnity Agreement which are qualified as being made to the best of Borrower’s knowledge, all representations and warranties made by Borrower in this Security Instrument, any other Loan Document or the Unsecured Indemnity Agreement are accurate, complete and correct in all material respects. There has been no material adverse change known to Borrower in any condition, fact, circumstance or event that would make any such information or any representation made herein as of a specific date inaccurate, incorrect or otherwise misleading in any material respect or that otherwise materially and adversely affects the Property or the business operations or the financial condition of Borrower. Borrower has disclosed to Lender all material facts known to Borrower and has not failed to disclose any material fact known to Borrower that is likely to cause any representation or warranty made herein to be materially misleading.

(ff)      Tax Filings . Borrower has filed (or has obtained effective extensions for filing) all federal, state and local tax returns required to be filed and has paid or made adequate provision for the payment of all federal, state and local taxes, charges and assessments payable by Borrower.

(gg)     Solvency/Fraudulent Conveyance . Borrower (a) has not entered into the transaction contemplated by this Security Instrument, any Loan Document or the Unsecured Indemnity Agreement, 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 and the Unsecured Indemnity Agreement. After giving effect to the Loan, the fair saleable value of Borrower’s assets exceeds and will, immediately following the making of the Loan, exceed Borrower’s total liabilities, including, without limitation, subordinated,

unliquidated, disputed and contingent liabilities. The fair saleable value of Borrower’s assets is and will, immediately following the making of the Loan, be greater than Borrower’s probable liabilities, including the maximum amount of its contingent liabilities on its debts as such debts become absolute and matured, and 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 does not intend to, and does not believe that it will, incur Indebtedness and liabilities (including contingent liabilities and other commitments) beyond its ability to pay such Indebtedness as they mature (taking into account the timing and amounts of cash to be received by Borrower and the amounts to be payable on or in respect of obligations of Borrower).

(hh)     Investment Company Act . Borrower is not (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 Public Utility Holding Company Act of 1935, 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.

(ii)     Lockbox Account .

(i) This Security Instrument, together with the other Loan Documents, creates a valid and continuing security interest (as defined in the U.C.C.) in the Lockbox Account and each other account created pursuant to the Lockbox Agreement in favor of Lender, which security interest is prior to all other Liens, other than Permitted Exceptions, and is enforceable as such against creditors of and purchasers from Borrower. Other than in connection with the Loan Documents and except for Permitted Exceptions, Borrower has not sold or otherwise conveyed the Lockbox Account or any other account created pursuant to the Lockbox Agreement;

(ii) The Lockbox Account and each other account created pursuant to the Lockbox Agreement constitute “deposit accounts” or “securities accounts” each within the meaning of the U.C.C.;

(iii) Pursuant and subject to the terms hereof and the Lockbox Agreement, Agent has agreed to comply with all instructions originated by Lender, without further consent by Borrower, directing disposition of the Lockbox Account, each other account created pursuant to the Lockbox Agreement and all sums at any time held, deposited or invested therein, together with any interest or other earnings thereon, and all proceeds thereof (including proceeds of sales and other dispositions), whether accounts, general intangibles, chattel paper, deposit accounts, instruments, documents or securities; and

(iv) Neither the Lockbox Account nor any other account created pursuant to the Lockbox Agreement is in the name of any Person other than Borrower, as pledgor, or Lender, as pledgee.

(jj)     Ground Lease . The Ground Lease is in full force and effect and Borrower has not received written notice of a default under the Ground Lease which has not been cured. Except as set forth in the definition of Ground Lease and as described in the Ground Lessor Estoppel, the Ground Lease has not been modified, amended or supplemented. There has been no prior sale, transfer assignment, hypothecation or pledge by Borrower of its interest in the Ground Lease, which will be outstanding following the Execution Date.

Section 2.02     PERFORMANCE BY BORROWER . Borrower shall pay the Secured Indebtedness to Lender and shall keep and perform each and every other obligation, covenant and agreement of the Loan Documents and the Unsecured Indemnity Agreement.

Section 2.03     WARRANTY OF TITLE . (a) Supplementing Section 2.01(f) hereof, Borrower warrants that it has the right and is lawfully authorized to sell, convey or encumber the Property subject only to those property specific exceptions to title contained in Schedule B of the Title Insurance Policy (the “ Permitted Exceptions ”). The warranties of Borrower contained in this Section 2.03(a) and in Section 2.01(f) hereof are made solely for the benefit of Lender and any prospective purchaser of the Loan Documents, the Guaranty, and the Unsecured Indemnity Agreement, and any participant in the Loan as contemplated in this Security Instrument.

(b)      Borrower further covenants to warrant and forever defend Lender from and against all persons claiming any interest in the Property other than interests specifically permitted hereunder.

Section 2.04      TAXES, LIENS AND OTHER CHARGES . (a) Unless otherwise paid to Lender as provided in Section 2.05 hereof, Borrower shall pay (or shall cause to be paid) all real estate and other taxes and assessments which may be payable, assessed, levied, imposed upon or become a lien on or against any portion of the Property (all of the foregoing items are collectively referred to as the “ Imposition ( s )”). The Impositions shall be paid not later than the dates on which the particular Imposition would become delinquent and Borrower shall produce to Lender receipts of the imposing authority, or other evidence reasonably satisfactory to Lender, evidencing the payment of the Imposition in full, except with regards to Impositions paid by Lender pursuant to Section 2.05 hereof. If Borrower elects by appropriate legal action to contest any Imposition, Borrower shall not be required to pay the Imposition provided that the contest operates to prevent enforcement or collection of the Imposition, or the sale or forfeiture of, the Property, and is prosecuted with due diligence and continuity. Upon termination of any proceeding or contest, Borrower shall pay the amount of the Imposition as finally determined in the proceeding or contest. In addition, Borrower covenants and agrees to pay (or cause to be paid) all water and sewer charges, vault and other license or permit fees, liens, fines, penalties, interest and other similar public and private claims which may be payable, assessed, levied, imposed upon or become a lien on or against any portion of the Property (“ Other Charges ”) on or before the date such charges, fees, liens, fines, penalties, interest and claims become delinquent and upon the request of Lender, Borrower shall produce to Lender receipts of the imposing authority, or other evidence reasonably satisfactory to Lender, evidencing the payment of such amount in full. If Borrower elects by appropriate legal action to contest any Other Charges, Borrower shall not be required to pay such Other Charges provided that the contest operates to prevent enforcement or collection of such Other Charges, or the sale or forfeiture of, the Property, and is prosecuted with due diligence and continuity. Upon termination of any proceeding or contest, Borrower shall pay the amount of the Other Charges as finally determined in the proceeding or contest.

(b)    In the event of the passage, after the Execution Date, of any law which deducts from the value of the Property, for the purposes of taxation, any lien or security interest encumbering the Property, or changing in any way the existing laws regarding the taxation of mortgages, deeds of trust and/or security agreements or debts secured by these instruments, or changing the manner for the collection of any such taxes, and the law has the effect of imposing payment of any Impositions upon Lender, at Lender’s option, the Secured Indebtedness shall become due and payable without any prepayment fee upon one hundred twenty (120) days’ prior written notice to Borrower. Notwithstanding the preceding sentence, Lender’s election to accelerate the Loan shall not be effective if (1) Borrower is permitted by law (including, without limitation, applicable interest rate laws) to, and actually does, pay the Imposition or the increased portion of the Imposition and (2) Borrower agrees in writing to pay or reimburse Lender in accordance with

Section 11.06 hereof for the payment of any such Imposition which becomes payable at any time when the Loan is outstanding.

Section 2.05     ESCROW DEPOSITS . (a) Without limiting the effect of Section 2.04 and Section 3.01 , Borrower shall pay to Lender monthly on the same date the monthly installment is payable under the Note, an amount equal to one‑twelfth (1/12 ^th ) of the amounts Lender reasonably estimates are necessary to pay, on an annualized basis, (a) all Impositions and (b) the premiums for the insurance policies required under this Security Instrument (collectively the “ Premiums ”) until such time as Borrower has deposited an amount equal to the annual charges for these items and on demand, from time to time, shall pay to Lender any additional amounts necessary to pay the Premiums and Impositions. Borrower will furnish to Lender bills for Impositions and Premiums thirty (30) days before Impositions become delinquent and such Premiums become due for payment. If Lender has the right hereunder to escrow sums as described in this Section 2.05 and Lender is in fact holding such sums (as opposed to the applicable bank pursuant to the Lockbox Agreement), no amounts paid as Impositions or Premiums shall be deemed to be trust funds and these funds may be commingled with the general funds of Lender but shall be held by Lender in a non‑segregated interest‑bearing account, provided, however, that Lender shall not guarantee any particular rate of return. All amounts held under this Section 2.05 shall be used only for the payment of the Premiums or Impositions for which the amounts were deposited.

(b)    Notwithstanding the provisions of Section 2.05(a) to the contrary, provided no Event of Default or Lockbox Event has occurred under the Loan Documents, the Guaranty or the Unsecured Indemnity Agreement, Lender shall not require an escrow for the Impositions or the Premiums (collectively, the “ Escrow Waivers ”), provided, with respect to the Premiums only, Borrower shall deliver to Lender on or before the date on which any Premiums become delinquent, evidence satisfactory to Lender that such Premiums have been paid in full, including, without limitation, certificates of insurance evidencing the insurance policies required pursuant to Section 3.01 of the Security Instrument evidencing compliance with such Section 3.01 . Each Event of Default, Lockbox Event or failure, with respect to Premiums only to provide the information provided in this Section 2.05(b) , shall constitute a “ Triggering Event ”.

(c)    Notwithstanding the provisions of Section 2.05(b) to the contrary, in the event Borrower shall cure the Event of Default referred to in Section 2.05(b) (provided Lender has accepted said cure) or Borrower shall have cured a Lockbox Event or Borrower shall have provided the evidence regarding payment of Premiums, as set forth in Section 2.05(b) hereof, Lender shall reinstate the Escrow Waivers and release all escrowed funds within five (5) Business Days of the applicable cure, provided, however, the Escrow Waivers shall be permanently terminated upon the occurrence of the third Triggering Event.

Section 2.06      CARE AND USE OF THE PROPERTY . (a) Borrower represents, warrants, and covenants as follows:

(i)    Intentionally omitted;

(ii)    Borrower shall at all times comply in all material respects with all present or future Requirements (including, without limitation, Prescribed Laws) affecting or relating to Borrower, the Property and/or the Use, and shall not use or knowingly permit the use of the Property, or any part thereof, for any illegal purpose.

(iii)    Borrower, at its sole cost and expense, shall keep the Property in good order, condition, and repair.

(iv)    Borrower shall abstain from, and not permit, the commission of physical waste to the Property and, subject to the rights of Macy’s West Stores, Inc.; The Neiman Marcus Group LLC; and Nordstrom, Inc., as tenant, under their respective leases of portions of the Real Property, (A) prior to a Securitization, shall obtain Lender’s prior written consent (which consent, provided no Event of Default is continuing, shall not be unreasonably withheld or delayed) with respect to any alterations (including off-site work, such as roadwork) that (I) may have a material adverse effect on Borrower’s financial condition or the use, operation or value (including the net operating income) of the Property, (II) materially adversely affect the structural integrity of the Improvements or any utility or HVAC system contained in any Improvements or (III) the total estimated cost to Borrower of such alterations (when added to the total estimated costs to Borrower of all other alterations then being conducted at the Property) in the aggregate (other than such amounts to be paid or reimbursed by tenants under the Leases) at any time exceeds $27,500,000.00 (the “ Threshold Amount ”) or (B) after a Securitization, shall obtain Lender’s prior written consent (which consent, provided no Event of Default is continuing, shall not be unreasonably withheld or delayed) with respect to any alterations (including off-site work, such as roadwork) that (I) may have a material adverse effect on Borrower’s financial condition or the use, operation or value (including the net operating income) of the Property or (II) materially adversely affect the structural integrity of the Improvements or any utility or HVAC system contained in any Improvements. If the total estimated cost to Borrower of such alterations (when added to the total estimated costs to Borrower of all other alterations then being conducted at the Property) in the aggregate shall exceed the Threshold Amount, Borrower shall promptly deliver to Lender and maintain as security for the payment of such amounts and as additional security for Borrower’s obligations under the Loan Documents any of the following: (w) Cash, (x) U.S. Obligations, (y) other securities (of a type that a REMIC Trust is permitted to hold and foreclose upon) having a rating, if prior to Securitization, acceptable to Lender or, after a Securitization has occurred, regarding which the Rating Agencies have confirmed in writing will not, in and of itself, result in a downgrade, withdrawal or qualification of the then current ratings assigned in connection with such Securitization or (z) a completion bond or Letter of Credit, in either case, issued by a financial institution having the Required Rating. Such security shall be in an amount equal to the excess of the total unpaid amounts with respect to such alteration (other than such amounts to be paid or reimbursed by tenants under the Leases) over the Threshold Amount and, if Borrower has not timely paid for the costs and expenses of the alteration, applied from time to time at the option of Lender to pay for such alteration or to terminate the alteration and restore the Property to the extent necessary to prevent any material adverse effect on the use, operation or value (including the net operating income) of the Property.

(v) Borrower represents and warrants that the zoning approval for the Property is not dependent upon the ownership or use of any property which is not encumbered by the Security Instrument.

(b)    Lender shall have the right, at any time and from time to time during normal business hours and upon reasonable prior notice, to enter the Property in order to ascertain Borrower’s compliance with the Loan Documents and the Unsecured Indemnity Agreement, to examine the condition of the Property, to perform an appraisal, to undertake surveying or engineering work, and to inspect premises occupied by tenants subject to the rights of tenants under their leases. Borrower shall reasonably cooperate with Lender performing these inspections. Lender shall reimburse Borrower for any losses or damages caused by such inspections.

(c)    Borrower shall use, or cause to be used, the Property continuously (subject to any disruption due to any casualty at the Property) for the Use. Borrower shall not use, or knowingly permit the

use of, the Property for any other use without the prior written consent of Lender. Borrower shall not file or record a declaration of condominium, master deed of trust or mortgage or any other similar document evidencing the imposition of a so‑called “condominium regime” whether superior or subordinate to this Security Instrument and Borrower shall not permit any part of the Property to be converted to, or operated as, a “cooperative apartment house” whereby the tenants or occupants participate in the ownership, management or control of any part of the Property.

(d)    Without the prior written consent of Lender, Borrower shall not (i) initiate or acquiesce in a change in the zoning classification of, and/or seek any variance under, existing zoning ordinances which would materially adversely affect the value of the Property, (ii) use or permit the use of the Property in a manner which may result in the Use becoming a non‑conforming use under applicable zoning ordinances, or (iii) subject the Property to restrictive covenants that may impair the lien of this Security Instrument or materially impair the value of the Property.

Section 2.07     COLLATERAL SECURITY INSTRUMENTS . Borrower covenants and agrees that if Lender at any time holds additional security for any obligations secured by this Security Instrument, it may, upon the occurrence of an Event of Default, enforce its rights and remedies with respect to the security, at its option, either before, concurrently or after a sale of the Property is made pursuant to the terms of this Security Instrument. Lender may apply the proceeds of the additional security to the Secured Indebtedness without affecting or waiving any right to any other security, including the security under this Security Instrument, and without waiving any breach or default of Borrower under this Security Instrument, any other Loan Document, or the Unsecured Indemnity Agreement.

Section 2.08     SUITS AND OTHER ACTS TO PROTECT THE PROPERTY . (a) Borrower shall promptly notify Lender of the commencement, or receipt of written notice, of any and all material actions or proceedings or other material claim affecting the Property or Borrower and/or the interest of Lender under the Loan Documents, the Guaranty, or the Unsecured Indemnity Agreement (collectively, “ Actions ”). Borrower shall appear in and defend any Actions.

(b)    Lender shall have the right, at the cost and expense of Borrower, to institute, maintain and participate in Actions and take such other action, as it may deem appropriate in the good-faith exercise of its discretion to preserve or protect the Property and/or the interest of Lender under the Loan Documents, the Guaranty, and the Unsecured Indemnity Agreement if Borrower has not instituted, maintained or participated in Actions in an appropriate manner as reasonably determined by Lender. Any money paid by Lender under this Section shall be reimbursed to Lender in accordance with Section 11.06 hereof.

Section 2.09     LIENS AND ENCUMBRANCES . Except as expressly permitted herein, without the prior written consent of Lender, to be exercised in Lender’s sole and absolute discretion, other than (a) the liens and security interests created by the Loan Documents, (b) the Permitted Exceptions, (c) liens, if any, for taxes imposed by any governmental authority not yet due or delinquent, (d) such Liens as Lender has approved or may approve in writing in Lender’s sole discretion, and (e) Liens (other than Liens to secure Indebtedness except to the extent if any expressly permitted under clause (t) of the definition of “Special Purpose Entity” in Section 2.10 hereof) that do not, individually or in the aggregate, materially adversely affect the value, operation, or, use of the Property or Borrower’s ability to repay the Loan, Borrower shall not create, place or allow to remain any lien or encumbrance on the Property, including deeds of trust, mortgages, security interests, conditional sales, mechanics’ liens, tax liens or assessment Liens regardless of whether or not they are subordinate to the lien created by this Security Instrument (collectively, “ Liens and Encumbrances ”). If any Liens and Encumbrances which are not permitted by the preceding sentences are recorded against the Property or any part of the Property, Borrower shall obtain a discharge and release of

any Liens and Encumbrances or obtain title insurance over such liens and encumbrances within thirty (30) days after receipt of notice of their existence. Notwithstanding the foregoing, Borrower, without the approval of Lender, may grant easements, reservations and rights of way in the ordinary course of business for water and sewer lines, telephone and cable lines, electric and natural gas lines or other public utilities for similar purposes provided that no such easement or encumbrance shall have a material adverse effect on the utility or operation of the Property or materially adversely affect the value of the Property.

Section 2.10     SINGLE PURPOSE ENTITY . (a) Until the Debt has been paid in full, Borrower hereby represents, warrants and covenants that each of Borrower and SPE Entity was and each of Borrower and each SPE Entity, if any, is and shall continue to be a Special Purpose Entity.

(b)    Intentionally Omitted.

(c)     Borrower has not at any time owned any real property other than, or engaged in any business activities or incurred any debt (contingent or actual) unrelated to, the Property. Borrower has at all times maintained and accounted for its assets in such a manner that it would not be costly or difficult to segregate, ascertain or identify its assets from those of its Affiliates. Borrower has not engaged in any activities or made any representations that would cause a reasonable creditor of any of its Affiliates to believe that the assets of Borrower are available for payment of the debts of such Affiliate.

“ Special Purpose Entity ” shall mean a corporation, partnership or limited liability company which at all times, on and after the Execution Date:

(a)    is organized solely for the purpose of (i) acquiring, developing, owning, holding, selling, leasing, transferring, exchanging, managing and operating the Property and in the case of Borrower only, owning any TRS Subsidiary (if established pursuant to the terms hereof), (ii) in the case of Borrower only, entering into the Loan Documents, the Guaranty, and/or the Unsecured Indemnity Agreement with Lender, refinancing the Property in connection with a permitted repayment of the Loan, and transacting lawful business that is incident, necessary and appropriate to accomplish the foregoing or (iii) with respect to a TRS Subsidiary, owning and operating the TRS Subsidiary Business and entering into the TRS Subsidiary Loan Documents, or (iv) in the case of the member of Borrower, only if such member becomes required to be an SPE Entity hereunder, acquiring and holding an ownership interest in Borrower and acting as a managing member of Borrower;

(b)     is not engaged and will not engage in any business unrelated to the purposes set forth in clause (a)(i) , (ii) or (iii) as applicable, above;

(c)    does not have and will not have any assets other than those related to (i) the Property, (ii) if the TRS Subsidiary is formed, the ownership of 100% of the interest in such TRS Subsidiary (or with respect to TRS Subsidiary, assets related to the TRS Subsidiary Business), or (iii) in the case of the member of Borrower, only if such member becomes required to be an SPE Entity hereunder, its ownership interest in Borrower;

(d)    to the fullest extent permitted by law, has not engaged, sought or consented to and will not engage in, seek or consent to any dissolution, winding up, liquidation, consolidation, merger, sale of all or substantially all of its (and in the case of SPE Entity, Borrower’s) assets (except as otherwise permitted herein);

(e)    with respect to Borrower and SPE Entity only, has organizational documents that contain and will contain such restrictions on transfers of interests therein consistent with this Security Instrument;

(f)    with respect to Borrower and SPE Entity only, has organizational documents that contain and will contain restrictions on the modification and amendment of Special Purpose Provisions of such organizational documents requiring the prior written consent of Lender and, after a Securitization, confirmation by each applicable Rating Agency that such modification or amendment will not, in and of itself, result in a reduction, withdrawal, downgrade or qualification of the then current rating of the Loan or any pool of loans of which the Loan forms a part, or of any rated Securities;

(g)    with respect to Borrower and SPE Entity only, if such entity is a general partnership, has and will have at least two (2) general partners that are each a Special Purpose Entity;

(h)    if any such entity is a limited partnership, has and will have at least one (1) general partner, which is a Special Purpose Entity;

(i)    intentionally omitted;

(j)    intentionally omitted;

(k)    if such entity is a limited liability company with only one (1) member, is a limited liability company organized in the State of Delaware that has and will have an operating agreement that requires (A) a Springing Member that will become the member of such entity upon there being no other member of such entity and (B) any resignation, removal or replacement of any Springing Member shall not be effective without (1) prior written notice to Lender and, after a Securitization has occurred, the Rating Agencies (which such prior written notice must be given on the earlier of five (5) days or three (3) Business Days prior to the applicable resignation, removal or replacement) and (2) evidence that the replacement Springing Member satisfies the applicable terms and conditions hereof and of the applicable organizational documents (which such evidence must accompany the aforementioned notice);

(l)    if such entity is (i) a limited liability company, has and will have articles of organization, a certificate of formation and/or an operating agreement, as applicable, (ii) a limited partnership, has and will have a general partner which has and will have an operating agreement or by‑laws, as the case may be, or (iii) a corporation, has and will have a certificate of incorporation or articles of incorporation that, in each case, provide that such entity will not (and, in the case of an SPE Entity, will not permit Borrower to): (A) dissolve, merge, liquidate, consolidate; (B) sell all or substantially all of its (and, in the case of an SPE Entity, Borrower’s) assets, except as otherwise permitted herein; (C) engage in any other business activity, or amend its (and, in the case of an SPE Entity, Borrower’s) organizational documents with respect to the matters set forth in this paragraph without the consent of Lender; or (D) without the unanimous vote of all of (i) its members, directors or managers, as applicable, (ii) in the case of a limited partnership which has a general partner that is an SPE Entity, its general partner, or (iii) in the case of a limited liability company which has a managing member that is an SPE Entity, its managing member, file a bankruptcy or insolvency petition or otherwise institute insolvency proceedings with respect to itself or to any other entity in which it has a direct or indirect legal or beneficial ownership interest;

(m)    has paid and will pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same shall become due, and has maintained, is maintaining and shall maintain adequate capital in light of its contemplated business operations;

(n)    has taken and will take all reasonable actions to correct any known misunderstanding regarding the separate identity of such entity;

(o)    has maintained and will maintain its bank accounts, books and records separate from any other Person and has filed and will file its own tax returns, except to the extent that it is a corporation or a limited liability company which files or will file consolidated tax returns with another corporation or a wholly‑owned subsidiary that files or will file its tax returns with its parent entity;

(p)    has not commingled and will not commingle its funds or assets with those of any other Person;

(q)    has maintained and will maintain its own financial statements showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; provided, however, that such entity’s assets may be included in a consolidated financial statement of an Affiliate;

(r)    has paid and will pay its own liabilities and expenses, including the salaries of its own employees, if any, out of its own funds and assets, and has maintained and will maintain a sufficient number of employees in light of its contemplated business operations or has retained and will retain a property manager, as applicable;

(s)    has observed and will observe all partnership, corporate or limited liability company formalities, as applicable;

(t)    has no Indebtedness that is still outstanding and will have no Indebtedness other than, in the case of Borrower, (i) the Loan and (ii)  unsecured Indebtedness in an amount not to exceed Fifteen Million and No/100 Dollars ($15,000,000.00) in the aggregate (excluding amounts payable to tenants for tenant improvements, tenant allowances or similar payments and brokers or Manager for leasing commissions payable in each case pursuant to Leases executed in accordance with the terms hereof), incurred in the ordinary course of business relating to the ownership and operation of the Property (including trade payables) and the routine administration of Borrower, which are not more than sixty (60) days past the date incurred (unless Borrower is in good faith contesting same) and not evidenced by a note and (iii) Indebtedness incurred in the ordinary course of business in connection with the financing of Personal Property or fixtures or equipment at the Property, which financing may be secured by, and only by, a pledge of the Personal Property or such fixtures or equipment, provided that equipment/fixtures lenders under such financing(s) agree to give Lender notice of any default thereunder and provide Lender with a reasonable opportunity to cure such default; provided, however, in no event shall amounts incurred by Borrower pursuant to this clause (iii) plus the amount of Indebtedness incurred by Borrower under clause (ii) exceed Fifteen Million and No/100 Dollars ($15,000,000.00), and if such Indebtedness under this clause (iii) is evidenced by a note, such Indebtedness is paid on the date payment is due under such note. No Indebtedness other than the Loan may be secured (subordinate or pari passu) by the Property, except as set forth in this clause (iii);

(u)    has not and will not guarantee or become obligated for the debts of any other Person or hold out its credit or assets or pledge its assets as being available for the benefit or to satisfy the obligations of any other Person except as permitted pursuant to this Security Instrument, specifically, the TRS Subsidiary shall be permitted to enter into a subsidiary guaranty and a pledge agreement for the benefit of Lender;

(v)    has not and will not acquire obligations or securities of its partners, members or shareholders or any other Affiliate, provided, however, if TRS Subsidiary is formed, Borrower may acquire and hold 100% of the interests in such TRS Subsidiary;

(w)    has allocated and will allocate fairly and reasonably any overhead expenses for shared office space that are shared with any Affiliate, including, but not limited to, paying for shared office space and services performed by any employee of an Affiliate;

(x)    has maintained and used and will maintain and use separate stationery, invoices and checks bearing its own name;

(y)    has held itself out and identified itself and will hold itself out and identify itself as a separate and distinct entity under its own name or in a name franchised or licensed to it by an entity other than an Affiliate of such Person and not as a division or part of any other Person, except for services rendered by Manager under the Management Agreement, so long as Manager holds itself out and will hold itself out as an agent of such Person;

(z)    has not made any loan or advance to any Person (other than loans or advances to tenants that are no longer outstanding) or held evidence of indebtedness issued by any other Person (other than cash and investment‑grade securities) and will not make loans or advances to any Person or hold evidence of indebtedness issued by any other Person (other than cash and investment‑grade securities), it being agreed that references to loans or advances do not include tenant allowances;

(aa)    except for capital contributions and distributions, has not entered into or been a party to, and will not enter into or be a party to, any transaction with its partners, members, shareholders or Affiliates, except (x) the Ground Lease and (y) other transactions in the ordinary course of business and on commercially reasonable terms;

(bb)    has not and will not have any obligation to, and will not, indemnify its partners, officers, directors or members, as the case may be, unless such indemnification obligation is and will be fully subordinated to the Debt and will not constitute a claim against such entity in the event its cash flow is insufficient to satisfy its obligations;

(cc)    has complied and will comply with all of the terms and provisions contained in its organizational documents, and the statements of facts contained in its organizational documents are true and correct and will remain true and correct;

(dd)    if such entity is a limited partnership, the limited partnership agreement requires and will require the remaining partners to continue the partnership as long as one (1) solvent general partner exists; and

(ee)    if such entity is a limited liability company with only one (1) member, its articles of organization, certificate of formation and/or operating agreement, as applicable, provides and will provide that a Springing Member automatically becomes a Member to continue the life of the limited liability company without dissolution in the event of a termination event;

(ff)    has not and will not form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other) or own any equity interest in any other entity, except the TRS Subsidiary and except in the case of an SPE Entity, the ownership interest in Borrower;

(gg)    has not had any of its obligations guaranteed by an affiliate, except for guarantees that have been either released or discharged (or that will be discharged as a result of the closing of the Loan) or the Guaranty or the Unsecured Indemnity Agreement or any other guarantees that are expressly contemplated by the Loan Documents, and shall not have any of its obligations guaranteed by an affiliate in the future, except for the Guaranty or the Unsecured Indemnity Agreement, or any other guarantees under which the guaranteed obligations will not exceed, in the aggregate at any one time outstanding, Five Million Five Hundred Thousand and No/100 Dollars ($5,500,000.00).

Section 2.11     CASH MANAGEMENT; LOCKBOX ACCOUNT . (a) On or prior to the date hereof, an account (the “ Lockbox Account ”) into which Borrower shall deposit, or cause to be deposited, all rents and other revenue (subject to Section 2.11(i) hereof) from the Property has been established with Agent. Borrower agrees that, upon notice from Lender to Agent of the occurrence and during the continuance of an Event of Default or the occurrence of a Lockbox Event until the occurrence of a cure of such Event of Default or a Lockbox Termination Event, as applicable, Agent shall establish the Payment Reserve Account and the Tax and Insurance Account in accordance with the Lockbox Agreement. Borrower hereby grants to Lender a first priority security interest in the Accounts and all deposits at any time contained therein and the proceeds thereof and will take all actions necessary to maintain in favor of Lender a perfected first priority security interest in the Lockbox Account, including, without limitation, authorizing Lender to file UCC‑1 Financing Statements and continuations thereof. All costs and expenses for establishing and maintaining the Lockbox Account shall be paid by Borrower. Borrower will not in any way alter or modify the Lockbox Agreement without Lender’s consent and will notify Lender of the Lockbox Account number.

(b)    Borrower shall, or shall cause Manager to, deliver written instructions to all tenants under Leases to deliver all rents payable thereunder directly to the Lockbox Account. Without limitation of the foregoing, Borrower shall notify and advise each tenant of the Property under each lease with respect to the Property (whether such lease is presently effective or executed after the date hereof) to send directly to the Lockbox Account all payments of rent. Borrower shall so notify and advise such tenants pursuant to an instruction letter in the form of Exhibit ”E” attached hereto (a “ Tenant Direction Letter ”) to the extent Borrower has not previously so instructed the tenants.

(c)    Commencing with the first billing statement delivered after the date hereof and for each subsequent statement delivered, Borrower and Manager shall instruct all Persons that maintain open accounts with Borrower or Manager or with whom Borrower or Manager does business on an “accounts receivable” basis with respect to the Property to deliver all payments due under such accounts to the Lockbox Account. Neither Borrower nor Manager shall direct, any such Person to make payments due under such accounts in any other manner.

(d)    If, notwithstanding the provisions of this Section 2.11 , Borrower or Manager receives any rents or other income from the Property then (i) such amounts shall be deemed to be collateral for the Loan and shall be held in trust for the benefit, and as the property, of Lender, (ii) Borrower or Manager shall, except as described in Section 2.11(i) hereof, deposit such amounts in the Lockbox Account within one (1) Business Day of receipt, and (iii) Borrower and Manager shall exercise reasonable efforts to cause the applicable tenant to thereafter remit its rents to the Lockbox Account.

(e)    Without the prior written consent of Lender, neither Borrower nor Manager shall terminate, amend, revoke or modify any Tenant Direction Letter to pay any amount in any manner other than as provided in the related Tenant Direction Letter.

(f)    Borrower shall make such additional deposits into the Lockbox Account as may be required by the Loan Documents.

(g)    Agent is authorized to accept electronic payments, including, without limitation, wire transfers and automated clearinghouse payments. The receipt of such payments will be subject to applicable laws, rules and regulations which may include, without limitation, requiring a reversal of an initial credit or a return of such payment.

(h)    Except for the Kiosk Account, Borrower warrants, represents and covenants that (i) there are no other accounts maintained by Borrower, Manager or any other Person into which rents or other revenues from the ownership and operation of the Property are deposited and (ii) so long as the Note shall be outstanding, neither Borrower, Manager, nor any other Person shall open any other such account for the deposit of rents or other revenues from the Property except for accounts opened by a TRS Subsidiary in accordance with this Security Instrument.

(i)    Borrower and Manager shall be permitted to maintain a bank account (the “ Kiosk Account ”) into which rents from Tenants pursuant to License Agreements and other miscellaneous revenue from sources other than Tenants, may be deposited. Except as hereinafter set forth, no withdrawals are permitted from the Kiosk Account. At any time that there exists no Event of Default or a Lockbox Event, Borrower or Manager shall be permitted to transfer funds in the Kiosk Account to an account controlled by the Borrower (the “ Borrower Account ”); provided that on any Business Day on which the amount of available funds on deposit in the Kiosk Account exceeds Two Hundred Thousand and No/100 Dollars ($200,000.00), Borrower or Manager be required to transfer the funds in the Kiosk Account to the Borrower Account. Upon the occurrence of and during the continuance of an Event of Default or a Lockbox Event until a Lockbox Termination Event, at any time that the available funds in the Kiosk Account exceed One Hundred Thousand and No/100 Dollars ($100,000.00), Borrower and Manager shall cause all funds in the Kiosk Account to be transferred, by wire transfer or the automated clearing house system, to the Lockbox Account. Notwithstanding the foregoing, Borrower and Manager shall not be obligated to transfer any funds from the Kiosk Account to the Lockbox Account except (A) during the continuance of an Event of Default or (B) during the period following the occurrence of a Lockbox Event until a Lockbox Termination Event.

(j)    Borrower shall maintain each Account with an Eligible Institution. If at any time Agent shall fail to be an Eligible Institution, upon Lender’s request in its sole discretion, Borrower shall within thirty (30) days (x) substitute Agent with a successor Agent that satisfies the requirements of an Eligible Institution or (y) have the Accounts held by Servicer or another institution that is reasonably acceptable to Lender, provided that such successor Agent (or Servicer, as the case may be) shall perform the duties of Agent pursuant to the terms of the Loan Documents; provided, however, that, if an Event of Default shall exist and be continuing or Borrower shall not replace Agent within such thirty (30) day period, then Lender may (A) replace the Agent with a successor Agent or (B) have one or more of the Accounts held by Servicer or another institution.

(k)    Upon payment of the Debt and the performance in full of all other obligations under the Loan Documents and upon Borrower’s written request, Lender shall execute and deliver to Borrower a signed letter (in the form of Exhibit “F” attached hereto directing tenants to pay the rents directly to Borrower or as otherwise directed by Borrower). Borrower shall be obligated to deliver such letters to each Tenant.

Section 2.12     DISBURSEMENTS FROM THE LOCKBOX ACCOUNT .

(a)    Any amounts on deposit in the Lockbox Account shall be automatically transferred at the end of each Business Day to an account of Borrower; provided, however, that upon the occurrence and during the continuance of an Event of Default or the occurrence of a Lockbox Event until the occurrence of a Lockbox Termination Event, if any, Lender shall instruct Agent to suspend such transfer to Borrower’s account and all funds in the Lockbox Account shall be disbursed in accordance with the terms and conditions of this Section 2.12 . Except as set forth in the Lockbox Agreement, Borrower shall have no rights to make withdrawals therefrom or receive the proceeds thereof.

(b)    During a Lockbox Event, Lender shall instruct Agent that all available funds in the Lockbox Account shall be applied, on each Business Day, in the following order of priority:

(i)    First, funds sufficient to pay the required monthly deposits for Impositions and Premiums, as described in Section 2.04(a) of this Security Instrument, shall be deposited in the Tax and Insurance Account;

(ii)    Second, funds sufficient to pay the next Debt Service payment due and payable under the Loan Documents shall be deposited in the Payment Reserve Account;

(iii)    Third, funds sufficient to pay any interest accruing at the Default Rate and late payment charges, if any, and other amounts (without duplication of amounts under the clause (ii) above) then due to Lender under the Loan Documents shall be deposited in the Payment Reserve Account; and

(iv)    Lastly, provided no Event of Default has occurred and remains uncured, all amounts remaining in the Lockbox Account after deposits for items in clauses (i) through (iii) shall be deposited into the Borrower Account.

(c)    Upon the occurrence and during the continuance of an Event of Default, Lender shall promptly notify Agent in writing of such Event of Default and, notwithstanding anything to the contrary in this Agreement, without notice from Agent or Lender, (i) Borrower shall have no further right in respect of (including, without limitation, the right to instruct Lender or Agent to transfer from) the Accounts, (ii) Lender may provide notice to the Lockbox Bank to distribute all amounts in the Accounts to Lender and (iii) Lender may apply any funds in the Accounts to the Debt and such other payment obligations under the Loan Documents in such order of priority as Lender may determine.

(d)    During the continuance of a Lockbox Event, Lender shall (i) withdraw amounts on deposit in the Tax and Insurance Account to pay Impositions and Premiums when due and (ii) withdraw amounts from the Payment Reserve Account (A) to pay Debt Service on the date such payment is due and payable, and (B) to make the payments more particularly described in Section 2.12(b)(iii) , if applicable.

(e)    Upon the occurrence of a Lockbox Event or Lockbox Termination Event, Lender shall provide Agent with entitlement orders and/or disbursement instructions, as applicable, in accordance with the Lockbox Agreement. Lender shall simultaneously forward a copy of any entitlement orders and disbursement instructions to Borrower.

Section 2.13     QUALIFIED MANAGER . The Property shall at all times be managed by a Qualified Manager. Lender acknowledges that the Management Agreement has been approved. Any subsequent agreement for the management and operation of the Property shall also be subject to Lender’s approval (other than amendments to the Management Agreement that do not increase the base management fee above 5% of the gross revenues of the Property or increase other fees or commissions payable to Manager,

unless Borrower reasonably determines that the same would result in greater cost savings to Borrower than increases in such fees and or commissions or cause the Management Agreement to contain commercially unreasonable terms). Borrower shall provide copies of any amendments to the Management Agreement to Lender promptly after execution thereof.

Section 2.14     SURVIVAL OF REPRESENTATIONS . Borrower agrees that all of the representations and warranties of Borrower set forth in Section 2.01 and elsewhere in this Security Instrument, the other Loan Documents and the Unsecured Indemnity Agreement shall be deemed given and made as of the Execution Date and the date of the funding of the Loan and survive for so long as any amount remains owing to Lender under this Security Instrument, any of the other Loan Documents, or the Unsecured Indemnity Agreement by Borrower. All representations, warranties, covenants and agreements made in this Security Instrument, the other Loan Documents, and the Unsecured Indemnity Agreement by Borrower shall be deemed to have been relied upon by Lender notwithstanding any investigation heretofore or hereafter made by Lender or on its behalf.

ARTICLE III

INSURANCE

Section 3.01     REQUIRED INSURANCE AND TERMS OF INSURANCE POLICIES .

(a) During the term of this Security Instrument, Borrower at its sole cost and expense must provide insurance policies, subject to the terms of Section 3.01(a)(xiv) below, and certificates of insurance for types of insurance described below all of which must be satisfactory to Lender as to form of policy, amounts, deductibles, sublimits, types of coverage, exclusions and the companies underwriting these coverages. In no event shall such policies be terminated or otherwise allowed to lapse. Borrower shall be responsible for its own deductibles. Borrower shall also pay for any insurance, or any increase of policy limits, not described in this Security Instrument which Borrower requires for its own protection or for compliance with government statutes. Borrower’s insurance shall be primary and without contribution from any insurance procured by Lender, including, without limitation, any insurance obtained by Lender pursuant to Section 3.01(d)(v) hereof. Evidence of insurance shall be delivered to Lender in accordance with the following requirements:

(i) Property insurance on the Improvements (excluding the Improvements leased pursuant to the Anchor Leases, if the tenants thereunder are required to maintain, and have not failed to maintain, all risk insurance with respect to such Improvements as stated in this Section 3.01 ) and the Personal Property insuring against any peril now or hereafter included within the classification “ All Risk ” or “ Special Perils ,” including contingent liability from Operation of Building Laws, Demolition Costs and Increased Cost of Construction Endorsements, in each case (A) in an amount equal to one hundred percent (100%) of the “ Full Replacement Cost ” (as hereinafter defined) of the Improvements and Personal Property (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, containing no margin clause unless approved by Lender and waiving all co-insurance provisions; (C) except as set forth in subsections (viii) and ( xi ) below providing for no deductible in excess of Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) for all such insurance coverage (each, as applicable, the “ Required Deductible ”) or such higher deductibles if Borrower provides Lender a Letter of Credit in an amount equal to the difference between the actual deductible and the Required Deductible, which Letter of Credit may be drawn upon by Lender upon the occurrence of a Casualty to pay such amounts that would have been paid by the issuer of the Policies (hereinafter defined) if the Required Deductible had been

maintained; and (D) containing an “ Ordinance or Law Coverage ,” “ Operation of Building Laws, Demolition Costs and Increased Cost of Construction in an amount reasonably required by Lender ” or “ Enforcement ” endorsement if any of the Improvements or the use of the Property shall at any time constitute legal non-conforming structures or uses, then in the amount of 100% of the Full Replacement Cost. The Full Replacement Cost shall be determined from time to time by an appraiser or contractor designated and paid by Borrower and approved by Lender or, at Borrower’s election, by an engineer or appraiser in the regular employ of the insurer. The “Full Replacement Cost” for purposes of this Article III shall mean the estimated total cost of construction required to replace the Improvements with a substitute of like utility, and using modern materials and current standards, design and layout. For purposes of calculating Full Replacement Cost direct (hard) costs shall include, without limitation, labor, materials, supervision and contractor’s profit and overhead and indirect (soft) costs shall include, without limitation, fees for architect’s plans and specifications, construction financing costs, permits, sales taxes, insurance and other costs included in the Marshall Valuation Service published by Marshall & Swifts;

(ii) Commercial General Liability insurance against claims for personal injury, bodily injury, death or property damage occurring upon, in or about the Property, such insurance (A) to be on the form with a combined single limit of not less than the amount set forth in the Defined Terms of One Million per occurrence and No/100 Dollars ($1,000,000.00) and Two Million and No/100 Dollars ($2,000,000.00) in the aggregate for any policy year, plus umbrella liability coverage in an amount not less than Fifty Million and No/100 Dollars ($50,000,000.00) per occurrence; (B) to continue at not less than this limit until required to be changed by Lender in writing by reason of changed economic conditions making such protection inadequate; and (C) to cover at least the following hazards: (1) premises and operations; (2) products and completed operations on an “ if any ” basis; (3) independent contractors; (4) blanket contractual liability for all contracts; and (5) contractual liability covering the indemnities contained in this Security Instrument to the extent the same is available;

(iii) Business Income insurance in an amount sufficient to prevent Borrower from becoming a co-insurer within the terms of the applicable policies, and sufficient to recover twenty-four (24) months “Business Income” (as hereinafter defined) or actual loss sustained with no time limitation and with an Extended Period of Indemnity (“ EPI ”) of 12 months following Restoration. The amount of such insurance shall be increased from time to time during the term of this Security Instrument as and when new leases and renewal leases are entered into and rents payable increase or the annual estimate of gross income from occupancy of the Property increases to reflect such rental increases. “ Business Income ” shall mean the sum of (i) the total anticipated gross income from occupancy of the Property, (ii) the amount of all charges (such as, but not limited to, operating expenses, insurance premiums and taxes) which are the obligation of tenants or occupants to Borrower, (iii) the fair market rental value of any portion of the Property which is occupied by Borrower, and (iv) any other amounts payable to Borrower or to any affiliate of Borrower pursuant to leases.

(iv) If Lender determines at any time that any part of the Property is located in an area identified on a Flood Hazard Boundary Map or Flood Insurance Rate Map issued by the Federal Emergency Management Agency as having special flood hazards and flood insurance has been made available (e.g. other than Zones B, C or X), Borrower will maintain a flood insurance policy meeting the requirements of the current guidelines of the Federal Insurance Administration with a generally acceptable insurance carrier, in an amount not less than the lesser of (i) ”Full Replacement Cost” or (ii) the maximum amount of insurance which is 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 amended. In addition, if Lender determines at any time that any part of the Property is located in Flood Zone A or V, Difference in Conditions (DIC) insurance and/or excess insurance from and against all losses, damages, costs, expenses, claims and liabilities related to or arising from acts of flood, of such types, in such amounts, with such deductibles, issued by such companies, and on such forms of insurance policies as required by Lender (provided, however, deductibles that arise from a named storm shall not exceed 5% of the insurable value);

(v) At all times during which structural construction, repairs or alterations are being made with respect to the Improvements, and only if the Property coverage form (described in Section 3.01(a) above) does not otherwise apply, (A) owner’s contingent or protective liability insurance covering claims not covered by or under the terms or provisions of the above mentioned commercial general liability insurance policy; and (B) the insurance provided for in subsection (i) above written in a so-called “ Builder’s All-Risk ” completed value form (1) on a non-reporting basis, (2) against all risks insured against pursuant to Section 3.01(a)(i) above including, without limitation, for demolition and increased cost of construction or renovation, (3) including Occupancy endorsement (4) with an agreed amount endorsement (in an amount reasonably required by Lender including an Occupancy endorsement) waiving co-insurance provisions and (5) Worker’s Compensation Insurance covering all persons engaged in the construction, renovation or alteration in an amount at least equal to the minimum required by statutory limits of the State;

(vi) Workers’ Compensation insurance, subject to the statutory limits of the State, and employer’s liability insurance with a limit of at least One Million and No/100 Dollars ($1,000,000.00) per accident and per disease per employee, and One Million and No/100 Dollars ($1,000,000.00) for disease in the aggregate in respect of any work or operations on or about the Property, or in connection with the Property or its operations (if applicable);

(vii) Boiler & Machinery, or Equipment Breakdown Coverage, insurance covering the major components of the central heating, air conditioning and ventilating systems, boilers, other pressure vessels, high pressure piping and machinery, elevators and escalators, if any, and other similar equipment installed in the Improvements, in an amount equal to one hundred percent (100%) of the full replacement cost of all equipment installed in, on or at the Improvements. These policies shall insure against physical damage to and loss of occupancy and use of the Improvements arising out of an accident or breakdown;

(viii) Insurance from and against all losses, damages, costs, expenses, claims and liabilities related to or arising from acts of terrorism, of such types, in such amounts, with such deductibles, issued by such companies, and on such forms of insurance policies as required by Lender. Notwithstanding the foregoing, in the event that the Terrorism Risk Insurance Act of 2002, as extended and modified by the Terrorism Risk Insurance Program Reauthorization Act of 2015, or other similar government legislation, is no longer in effect, then Borrower shall be required to procure and maintain only such coverage against acts of terrorism as may be obtained at a premium cost equal to the greatest of (A) two (2) times the amount of the premium (without terrorism coverage) for the All-Risk Property and Liability coverage provided in Section 3.01(a)(i) , (ii) and (iii) above for the then-current insurance period, (B) such amount as may be required to remain in compliance with the Ground Lease and (C) such amount as may be required to remain in compliance with the REA;

(ix) Business Automobile Insurance with a combined single limit of not less than One Million and No/100 Dollars ($1,000,000.00) per occurrence for bodily injury and property damage arising out of the use of owned, non-owned, hired and/or leased automotive equipment when such

equipment is operated by Borrower, Borrower’s employees or Borrower’s agents in connection with the Property;

(x) If the Property is or becomes a legal “ non-conforming ” use, ordinance or law coverage and insurance coverage to compensate for the cost of demolition or rebuilding of the undamaged portion of the Property along with any reduced value and the increased cost of construction in amounts as requested by Lender;

(xi) Windstorm coverage, including coverage for Named Storms, in an amount equal to the Full Replacement Cost, plus an amount equal to the business income insurance and Extended Period of Indemnity contemplated in Section 3.01(a)(iii ) and on terms consistent with the commercial property insurance policy required under Section 3.01(a)(i) above; provided, however, that the Required Deductible for windstorm shall not exceed the greater of (i) Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) or (ii) five percent (5%) of the insurable values;

(xii) If Property is located in a UBC Zone 3 or 4, insurance from or against all losses, damages, costs, expenses, claims and liabilities related to or arising from earthquake on such form of insurance policy and in such amount as required by Lender, and provided that the deductible for earthquake coverage shall not exceed the greater of (i) $250,000 or (ii) five percent (5%) of the Full Replacement Cost.

(xiii) Such other insurance (i) as may from time to time be required by Lender to replace coverage against any hazard, which as of the date hereof is insured against under any of the insurance policies described in Sections 3.01(a)(i) through (xii) , and (ii) as may from time to time be reasonably required by Lender against other insurable hazards, including, but not limited to, vandalism, earthquake, environmental, sinkhole and mine subsidence;

(xiv) upon sixty (60) days’ written notice, such other reasonable insurance and in such reasonable amounts as Lender from time to time may reasonably request against such other insurable hazards; provided however that Borrower shall only be required to maintain such coverage for any such insurable hazard which may be obtained at a cost equal to two (2) times the amount of the premium for the All-Risk Property coverage in Section 3.01(a) above for the then-current insurance period; and

(xv) The policies described in this Section 3.01 (other than those strictly limited to liability protection) shall designate Lender as Lender (under New York Standard Lender Clause or equivalent) and Loss Payee. Borrower shall deliver to Lender on or before the date on which any Premiums become delinquent, evidence satisfactory to Lender that such Premiums have been paid. Borrower shall provide, without limitation, certificates of insurance, endorsements and/or portions of the policy evidencing the insurance policies required pursuant to this Section 3.01 prior to each renewal. Lender will accept certificates of insurance and applicable portions of the policy in lieu of policies for the insurance required pursuant to Section 3.01(a) above, provided that Lender will not be required to accept certificates which do not confer rights on Lender as certificate holder. If certificates are not satisfactory to Lender in its sole discretion, redacted copies of the insurance policies (which redacted policies shall include the Lender loss payee endorsements, declaration pages, evidence of required 30 day cancellation notice to Lender and information for blanket policies as required under Section 3.01(b) below) or other evidence of insurance satisfactory to Lender in its sole discretion must be provided. Additionally, if Lender accepts an insurance binder as evidence of insurance, a redacted insurance policy (which redacted policy shall include the Lender loss payee endorsements, declaration

pages, evidence of required 30 day cancellation notice to Lender and information for blanket policies as required under Section 3.01(b) below) or certificate satisfactory to Lender must be submitted to Lender at least ten (10) days prior to the expiration date of the binder. In addition, if Lender is named in any claim or suit with respect to any insurance coverage or any insurance policy in which Lender has accepted a certificate in lieu of the insurance policy, Borrower will deliver a copy of the applicable insurance policy (which may be redacted for information only relating to property specific information for other clients covered under the policy) within five (5) Business Days of Lender’s request. Any redacted policy shall include mortgagee loss payee endorsements, declaration pages, evidence of required 30 day cancellation notice to Lender and information for blanket policies as required under Section 3.01(b) below.

For the avoidance of doubt and without limiting any other obligations of Borrower set forth in this Security Instrument, if any of the above insurance requirements shall be less than those contained in the Ground Lease or the REA, Borrower shall maintain in each case of (i)-(xiv) above the greater of the insurance required by such subsection, and that required pursuant to the Ground Lease and that required pursuant to the REA.

(b) Any blanket insurance policy shall specifically allocate to the Property the amount of coverage from time to time required hereunder and shall otherwise provide the same protection as would a separate policy insuring only the Property in compliance with the provisions of Section 3.01(a), and such policy shall be acceptable to Lender. Upon request, Borrower shall provide a 3rd Party Hazard Analysis report completed by a recognized risk modeling company (e.g. RMS, EQE, AIR), approved by Lender or necessary underwriting information, including but not limited to a schedule of locations, property types and replacement cost of all properties covered by the blanket policy.

(c) The policies of insurance referenced in Sections 3.01(a)(i) , (iii) , (iv) , (v) , (vii) , (viii) , (x) , (xi) and (xii) shall identify Lender under the New York standard mortgagee clause noncontributory endorsement or equivalent, and Lender shall also be named as Loss Payee under such policies. The policies of insurance referenced in Sections 3.01(a)(ii) , (viii) and (ix) shall name Lender as a named additional insured and the policies of insurance in Section 3.01(xiii) shall name Lender in such form and manner as Lender shall require.

(d) All policies of insurance provided for in this Section 3.01 shall contain clauses or endorsements to the effect that:

(i) no act or negligence by Borrower, or anyone acting for Borrower, or any tenant or other occupant, or failure to comply with the provisions of any policy, which might otherwise result in a forfeiture of the insurance or any part thereof, shall in any way affect the validity or enforceability of the insurance insofar as Lender is concerned;

(ii) All of the policies referred to in this Section 3.01 shall provide that the policy shall not be materially changed (other than to increase the coverage provided thereby) or cancelled without at least thirty (30) days’ written notice to Lender and any other party named therein as an additional insured; provided, however, in the event that Borrower is informed that the insurance coverage required to be maintained pursuant to Section 3.01(a) above is cancelled, or will be cancelled, Borrower shall immediately notify Lender of such cancellation after Borrower receives such notice;

(iii) the issuers thereof shall give written notice to Lender if the policy has not been renewed fifteen (15) days prior to its expiration; and

(iv) Lender shall not be liable for any Premiums thereon or subject to any assessments thereunder.

(v) If at any time Lender is not in receipt of written evidence that all insurance required hereunder is in full force and effect, Lender shall have the right, upon prior notice to Borrower, to take such action as Lender deems necessary to protect its interest in the Property, including, without limitation, the obtaining of such insurance coverage as Lender in its sole discretion deems appropriate. All premiums incurred by Lender in connection with such action or in obtaining such insurance and keeping it in effect shall be paid by Borrower to Lender upon demand and, until paid, shall be secured by the Security Instrument and shall bear interest at the Default Rate (as defined in the Note).

(e) All the insurance companies must be authorized to do business in New York State and the State and be approved by Lender. The insurance companies must have a general policy rating of A.M. Best “Excellent” or better and a financial class of X or better by A.M. Best. So called “Cut-through” endorsements shall not be permitted. If there are any Securities (as defined in Section 12.01 ) issued with respect to this Loan which have been assigned a rating by a Rating Agency, the insurance company shall have a claims paying ability rating by such Rating Agency equal to or greater than the rating of the highest class of the Securities. Borrower shall deliver evidence satisfactory to Lender of payment of premiums due under the insurance policies. Notwithstanding the foregoing, in the event the policies are issued by FM Global Insurance Company (“ FM Global ”) and FM Global has an S&P Rating of “BBBpi” FM Global will be deemed an acceptable insurance carrier provided FM Global maintains (i) a minimum claims paying ability of “A” or better by Fitch and (ii) a rating of at least “A:X” by A.M. Best.

(f) All binders, policies, endorsements, certificates, and cancellation notices are to be sent to the Lender’s Address for Insurance Notification as set forth in the Defined Terms until changed by notice from Lender.

Section 3.02     ADJUSTMENT OF CLAIMS . Provided that no Event of Default has occurred and is continuing, Borrower may settle, adjust or compromise any claim for damage to, or loss or destruction of, all or a portion of the Property, regardless of whether there are Insurance Proceeds available or whether any such Insurance Proceeds are sufficient in amount to fully compensate for such damage, loss or destruction, (i) with prior written notice to but without the necessity of approval by Lender, if the aggregate loss to which such claim pertains is greater than $1,000,000 and less than $7,500,000 as reasonably determined by the insurance carrier or a qualified insurance adjuster, and (ii) if such aggregate loss as reasonably determined by the insurance carrier or a qualified insurance adjuster is $7,500,000 or greater Borrower hereby authorizes and empowers Lender to join Borrower in settling, adjusting or compromising any claim in excess of Seven Million Five Hundred Thousand and No/100 Dollars ($7,500,000.00) for damage to, or loss or destruction of, all or a portion of the Property, regardless of whether there are Insurance Proceeds available or whether any such Insurance Proceeds are sufficient in amount to fully compensate for such damage, loss or destruction. Borrower shall not settle, adjust or compromise any claim in excess of Seven Million Five Hundred Thousand and No/100 Dollars ($7,500,000.00) without Lender’s consent, which consent shall not be unreasonably withheld or delayed. Borrower hereby authorizes and empowers Lender to settle, adjust or compromise any such claim regardless of whether there are Insurance Proceeds available or whether any such Insurance Proceeds are sufficient in amount to fully compensate for such damage, loss or destruction, if an Event of Default has occurred and is continuing, regardless of the amount of such loss.

Section 3.03     ASSIGNMENT TO LENDER . In the event of the foreclosure of this Security Instrument or other transfer of the title to the Property in extinguishment of the Secured Indebtedness, all right, title and interest of Borrower in and to any insurance policy, or premiums or payments in satisfaction

of claims or any other rights under these insurance policies and any other insurance policies covering the Property shall pass to the transferee of the Property.

ARTICLE IV

BOOKS, RECORDS AND ACCOUNTS

Section 4.01     BOOKS AND RECORDS . Borrower shall keep adequate books and records of account in accordance with generally accepted accounting principles (“ GAAP ”), consistently applied and furnish to Lender:

(a) on request of Lender, quarterly certified rent rolls signed and dated by Borrower, detailing the names of all tenants of the Improvements, the portion of Improvements occupied by each tenant, the base rent and any other charges payable under each Lease, the term of each Lease, including the expiration date, and any other information as is reasonably required by Lender and available from Borrower’s operating systems, within forty-five (45) days after the end of each fiscal quarter;

(b) on request of Lender, at the end of each fiscal quarter of Borrower, a monthly operating statement of the Property and year to date operating statements detailing the total revenues received, total expenses incurred, total cost of all capital improvements, total debt service and total cash flow, to be prepared and certified by Borrower primarily in accordance with GAAP (with an explanation of any known divergence from GAAP), and if available, any quarterly operating statement prepared by an independent certified public accountant, within thirty to sixty (30‑60) days after the close of each fiscal quarter of Borrower;

(c) annually, within ninety (90) days following the end of each Fiscal Year of Borrower, (x) a complete copy of each of Borrower’s and Liable Party’s annual financial statements audited by a Big Four accounting firm, or other independent certified public accountant reasonably acceptable to Lender in accordance with GAAP (or such other accounting basis reasonably acceptable to Lender) covering the Property for such Fiscal Year and containing statements of profit and loss for Borrower and Liable Party (as applicable) and the Property, (y) a balance sheet for Borrower and Liable Party (as applicable), together with a certified rent roll signed and dated by Borrower containing the information set forth in subparagraph (a) above and a certified schedule of security deposits held for each tenant, including the name and identification number of the account in which the security deposit is held and the name and address of the financial institution in which the deposit is held and (z) a certified statement regarding ownership pursuant to Section 10.03 hereof. Such statements shall set forth the financial condition and the results of operations for the Property for such Fiscal Year, and shall include, but not be limited to, to the extent consistent with GAAP, amounts representing annual income, gross revenue, and operating expenses. Borrower’s and Liable Party’s respective annual financial statements shall be accompanied by (i) a certificate executed by an authorized signatory of TRG or such other party as may be approved by Lender stating that each such annual financial statement presents fairly the financial condition and the results of operations of Borrower and the Property being reported upon and has been prepared in accordance with GAAP, and (ii) an opinion of a Big Four accounting firm or other independent certified public accountant reasonably acceptable to Lender, and to the extent such opinion is qualified, a detailed explanation as to such qualification. Together with Borrower’s and Liable Party’s respective annual financial statements, Borrower shall furnish to Lender an Officer’s Certificate certifying as of the date thereof whether there exists an event or circumstance which constitutes a material Default or Event of Default under the Loan Documents, the Guaranty, or the Unsecured Indemnity Agreement, executed and delivered by, or applicable to, Borrower or Liable Party (as applicable), and if such material Default or Event of Default exists, the nature thereof, the period of time it has existed and the action then being taken to remedy the same;

(d) an annual operating budget for the Property including cash flow projections for the upcoming year and all proposed capital replacements and improvements at least fifteen (15) days prior to the start of each calendar year;

(e) within thirty (30) days after Lender’s request, a rent roll and other supporting information related to tenant reimbursements as is reasonably required by Lender and available from Borrower’s operating systems;

(f) upon reasonable request of Lender, a certified schedule of License Agreements detailing the names of all licensees and any other information as is reasonably required by Lender and available from Borrower’s operating systems;

(g) quarterly sales reports for all tenants required to report sales under their Leases, to the extent such tenants actually report such sales to Borrower which reports shall be delivered by Borrower to Lender within forty-five (45) days after the close of each fiscal quarter;

(h) annual sales reports for all tenants required to provide sales reports under their Leases, to the extent such tenants actually deliver such reports to Borrower which reports shall be delivered by Borrower to Lender within forty-five (45) days after the close of each fiscal quarter; and

(i) a copy of any appraisal of the Property which is hereafter initiated by Borrower shall be delivered by Borrower to Lender within thirty (30) days after the final version of the same has been delivered to Borrower.

Section 4.02     ADDITIONAL MATTERS . (a) Borrower shall furnish Lender with such other additional financial or management information (including, without limitation, State and Federal tax returns and schedules of License Agreements) as may, from time to time, be reasonably required by Lender.

(b) Upon reasonable prior notice, Borrower shall furnish Lender and its agents convenient facilities at Borrower’s main offices for the examination and audit of any such books and records.

ARTICLE V

LEASES AND OTHER AGREEMENTS AFFECTING THE PROPERTY

Section 5.01     BORROWER’S ADDITIONAL REPRESENTATIONS AND WARRANTIES . Supplementing Sections 2.01(y) and (z ) hereof, Borrower represents and warrants to Lender as follows:

(a) Borrower has delivered to Lender true, correct and complete copies of all Leases, including amendments (collectively, “ Existing Leases ”) and all guaranties and amendments of guaranties given in connection with the Existing Leases (the “ Guaranties ”).

(b) No oral or written modification, amendment, or supplement has occurred with respect to any of the Existing Leases or Guaranties or the REA, except as set forth in writing in the copies delivered to Lender.

(c) Borrower is not in material default of any obligations to be performed by Borrower under the Existing Leases and, to the best knowledge of Borrower, as of May 2, 2016, there are no material defaults by any tenants or any guarantors under the Existing Leases or the Guaranties (as applicable), or conditions that, with the passage of time or the giving of notice, or both, would constitute material defaults thereunder, except as disclosed on the certified schedule of material tenant defaults delivered in connection with the closing of the Loan on the Execution Date.

(d) To the best knowledge of Borrower, none of the tenants now occupying ten percent (10%) or more of the Property or having a current lease affecting ten percent (10%) or more of the Property nor any tenant under any Major Lease is the subject of any bankruptcy, reorganization or insolvency proceeding or any other debtor‑creditor proceeding.

(e) Intentionally omitted.

(f) Borrower has deposited all security deposits delivered in connection with the Existing Leases in accordance with applicable law.

(g) To the best knowledge of Borrower, as of May 2, 2016, no tenant under any Existing Lease has asserted in writing any defense, set‑off or counterclaim with respect to its tenancy or its obligations under its lease, and to the best of Borrower’s knowledge, no such defense, set‑off or counterclaim exists, except to the extent, if any, disclosed in any tenant estoppel letter delivered to Lender in connection with the closing of the Loan on or prior to the Execution Date or on the certified schedule of material tenant defaults delivered in connection with the closing of the Loan on the Execution Date.

(h) As of May 2, 2016, there are no material unfulfilled landlord obligations due to tenants for tenant improvements, moving expenses or rental concessions or other matters, and all material credits required to be paid or contributed by Borrower under the Existing Leases have been paid or contributed in full, except as disclosed on the certified schedule of material unfulfilled landlord obligations and material credits under Existing Leases delivered in connection with the closing of the Loan on the Execution Date.

Section 5.02     ASSIGNMENT OF LEASES . In order to further secure payment of the Secured Indebtedness and the performance of Borrower’s obligations under the Loan Documents, Borrower absolutely, presently and unconditionally grants and assigns to Lender all of Borrower’s right, title, interest and estate in, to and under (a) all of the Existing Leases and Guaranties affecting the Property and (b) all of the future Leases and guaranties affecting the Property and (c) the Rents and Profits. Borrower acknowledges that it is permitted to collect the Rents and Profits pursuant to a revocable license unless and until an Event of Default occurs provided, however, if the Event of Default is cured by Borrower, the license to receive the Rents and Profits shall be reinstated.

Section 5.03     PERFORMANCE OF OBLIGATIONS . (a) Borrower shall perform in all material respects all obligations under any and all Leases and the REA.

(b) All future Leases and amendments, modifications, extensions and renewals of Leases shall be submitted by Borrower to Lender upon request, but no more frequently than quarterly, within ten (10) days of Lender’s request to Borrower. Copies of Leases and related documents may be provided to Lender in Adobe Portable Document Format (PDF) or other electronic format acceptable to Lender. Borrower shall not, without the express written consent of Lender, (i) enter into or extend any Lease unless the Lease complies with the Leasing Guidelines which are attached to this Security Instrument as Exhibit ”B” , or (ii) cancel or terminate any Leases (except in the case of a default) unless Borrower has entered into new Leases covering all of the premises of the Leases being terminated or surrendered or unless such cancellation or termination otherwise complies with the Leasing Guidelines, or (iii) modify or amend any Leases in any material way or reduce the rent or additional rent or unless such modification or amendment or reduction in rent or additional rent otherwise complies with the Leasing Guidelines, or (iv) accept payment of advance rents or security deposits in an amount in excess of one month’s rent, or (v) grant any options to purchase the Property or portion thereof, or (vi) prior to a Securitization, cancel, terminate, or modify or amend in any material way the REA, which consent shall not be unreasonably withheld or delayed with respect to amendments or modifications to the REA, or after a Securitization, modify or amend the REA, if such modification or amendment would have a material adverse effect on the value (including, without limitation, the net operating income) of the Property, taken as a whole, or the use or operation of the Property or the ability of Borrower to pay its obligations in respect of the Loan. Lender shall execute any modifications to

the REA for which Lender’s consent is obtained or Lender’s consent is not required in order to subordinate the lien of the Security Instrument to the REA as so amended.

Section 5.04     SUBORDINATE LEASES AND NON‑DISTURBANCE AGREEMENTS . (a) All future Leases shall be subordinate to the lien of the Security Instrument and shall provide the Lender may elect to make the Lease superior to the Security Instrument and to require the tenant to attorn to Lender. Upon request by Borrower, Lender shall grant non-disturbance under any Lease that Borrower is entitled to enter into hereunder, (x) prior to a Securitization, on Lender’s standard form of subordination, non-disturbance and attornment agreement with such changes as Lender shall approve in its judgment, reasonably exercised or (y) after a Securitization, on a form reasonably acceptable to Lender (which form shall, among other things, require the applicable tenant to attorn to Lender or Lender’s nominee or other third party purchaser of the Property following a foreclosure of the Security Instrument or delivery of a deed in lieu of foreclosure) to those tenants under Leases which require the delivery of non-disturbance agreements. Any such non-disturbance granted by Lender shall not be deemed effective until Lender receives an executed copy of the related Lease. Notwithstanding the foregoing, prior to a Securitization, Lender shall have approval rights, not to be unreasonably withheld or delayed, with respect to any Lease, including, without limitation, Leases which otherwise comply with the Leasing Guidelines, in the event Lender is asked to provide a non‑disturbance agreement in connection with such Lease.

(b) With respect to Leases submitted from and after the Execution Date Borrower shall pay on demand, a processing fee of $1,500.00 per Lease and Borrower shall pay, or, on demand, reimburse Lender for the payment of any reasonable costs or expenses (including reasonable attorneys’ fees and disbursements of Lender’s outside counsel) incurred or expended in connection with or incidental to (i) the review and approval of any Lease requiring a non‑disturbance agreement, and (ii) the preparation and negotiation of a non-disturbance agreement in connection with any Lease.

Section 5.05     LEASING COMMISSIONS . Borrower covenants and agrees that all contracts and agreements relating to the Property requiring the payment of leasing commissions, management fees or other similar compensation shall (a) provide (whether in the agreement itself or a separate subordination agreement) that the obligation will not be enforceable against Lender, except for management fees due for any period that Lender is in possession of the Property, and (b) be subordinate to the lien of this Security Instrument. Lender will be provided evidence of Borrower’s compliance with this Section upon request.

ARTICLE VI

ENVIRONMENTAL HAZARDS

Section 6.01 REPRESENTATIONS AND WARRANTIES . Borrower hereby represents, warrants, covenants and agrees to and with Lender that, except as otherwise disclosed in the Environmental Report, (a) neither Borrower nor, to Borrower’s actual knowledge, any tenant, subtenant or occupant of the Property, has at any time placed, suffered or knowingly permitted, nor at any time will Borrower place, suffer or knowingly permit the presence of any toxic waste or other Hazardous Materials (as defined in Section 6.05 hereof) at, on, under, within or about the Property in violation of applicable Environmental Laws except as expressly approved by Lender in writing, (b) neither Borrower nor any portion of the Property is subject to any existing, or to Borrower’s actual knowledge threatened, investigation by any governmental authority under any Requirements of Environmental Laws (as defined in Section 6.06 hereof), (c) Borrower has not and is not required by any Requirements of Environmental Laws to obtain any permits or licenses to use any portion of the Improvements, fixtures, or equipment on the Property which have not been obtained, (d) all operations or activities upon the Property to the best of Borrower’s knowledge, and any use or occupancy of the Property by Borrower or any tenant are currently and shall in the future be in compliance with all Requirements of Environmental Laws, (e) Borrower will use all commercially reasonable efforts to assure (i) that any tenant, subtenant or occupant of the Property shall in the future be in compliance with all Requirements of Environmental Laws and (ii) that no tenant, subtenant or occupant places, suffers or permits any toxic waste or other Hazardous Materials at, on, under, within or about the Property in violation of applicable Environmental Laws, and (f) Borrower will comply with all of the requirements and recommendations set forth in any environmental site assessment performed with respect to the Property prior to the Execution Date as a condition of the Loan and will obtain and forward to Lender revised environmental site assessments, if reasonably requested by Lender.

Section 6.02 REMEDIAL WORK . In the event any investigation or monitoring of site conditions or any clean‑up, containment, restoration, removal or other remedial work (collectively, the “ Remedial Work ”) is reasonably necessary under any Requirements of Environmental Laws (defined below), Borrower shall within thirty (30) days after written demand by Lender (or such shorter period of time as may be required under Requirements of Environmental Laws) perform or cause to be performed the Remedial Work in compliance with the applicable law, regulation, order or agreement. All Remedial Work shall be performed by one or more contractors, selected by Borrower and approved in advance in writing by Lender, which approval shall not be unreasonably withheld or delayed, and, if mandated by Requirements of Environme

ntal Laws, under the supervision of a licensed engineer, selected by Borrower and approved in advance in writing by Lender, which approval shall not be unreasonably withheld or delayed. All costs and expenses of Remedial Work shall be paid by Borrower including, without limitation, the charges of the contractor(s) and/or the licensed engineer, and Lender’s reasonable attorneys’, architects’ and/or consultants’ fees and costs incurred in connection with monitoring or review of the Remedial Work. In the event Borrower shall fail to timely commence, or cause to be commenced, or fail to diligently prosecute to completion, the Remedial Work, Lender may, but shall not be required to, upon thirty (30) days’ prior written notice to Borrower, cause such Remedial Work to be performed, subject to the provisions of Sections 11.05 and 11.06 hereof.

Section 6.03 ENVIRONMENTAL SITE ASSESSMENT . Lender shall have the right, if evidence exists, in its reasonable judgment, that there may be a violation of applicable Environmental Laws, to undertake, at the expense of Borrower, an environmental site assessment on the Property, including any sampling or testing that Lender may determine, in its reasonable discretion, is necessary or desirable to ascertain the environmental condition of the Property and the compliance of the Property with Requirements of Environmental Laws. Borrower shall cooperate fully with Lender and its consultants performing such assessments, samples and tests.

Section 6.04 UNSECURED OBLIGATIONS . No amounts which may become owing by Borrower to Lender under this Article VI or under any other provision of this Security Instrument as a result of a breach of or violation of this Article VI shall be secured by this Security Instrument. The obligations of Lender under this Article VI shall nevertheless continue in full force and effect and any breach of this Article VI shall constitute an Event of Default subject to the notice and cure periods provided in this Security Instrument. The lien of this Security Instrument shall not secure (a) any obligations evidenced by or arising under the Unsecured Indemnity Agreement (“ Unsecured Obligations ”), or (b) any other obligations to the extent that they are the same or have the same effect as any of the Unsecured Obligations. The Unsecured Obligations shall continue in full force, and any breach or default of any such obligations shall constitute a breach or default under this Security Instrument but the proceeds of any foreclosure sale shall not be applied against Unsecured Obligations. Nothing in this Section shall in any way limit or otherwise affect the right of Lender to obtain a judgment in accordance with applicable law for any deficiency in recovery of all obligations that are secured by this Security Instrument following foreclosure, notwithstanding that the deficiency judgment may result from diminution in the value of the Property by reason of any event or occurrence pertaining to Hazardous Materials or any Requirements of Environmental Laws.

Section 6.05 HAZARDOUS MATERIALS . “ Hazardous Materials ” shall include without limitation:

(a) Those substances included within the definitions of “hazardous substances,” “hazardous materials,” “toxic substances,” or “solid waste” in the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 as amended, 42 U.S.C. Sections 9601 et seq ., the Resource Conservation and Recovery Act of 1976, 42 U.S.C. Sections 6901 et seq ., and the Hazardous Materials Transportation Act, 49 U.S.C. Sections 1801 et seq ., and in the regulations promulgated pursuant to said laws;

(b) Those substances defined as “hazardous wastes” or “hazardous substance” pursuant to applicable state statutes and in the regulations promulgated pursuant to such laws;

(c) Those chemicals known to cause cancer or reproductive toxicity, as published pursuant to applicable state statutes;

(d) Those substances listed in the United States Department of Transportation Table (49 CFR 172.101 and amendments thereto) or by the Environmental Protection Agency (or any successor agency) as hazardous substances (40 CFR Part 302 and amendments thereto);

(e) Any material, waste or substance which is (i) petroleum, (ii) asbestos, (iii) polychlorinated biphenyls, (iv) designated as a “hazardous substance” pursuant to Section 311 of the Clean Water Act, 33 U.S.C. §1251 et seq ., (33 U.S.C. §1321) or listed pursuant to Section 307 of the Clean

Water Act (33 U.S.C. § 1317); (v) a chemical substance or mixture regulated under the Toxic Substances Control Act of 1976, 15 U.S.C. § 2601 et seq ., (vi) flammable explosives; or (vii) radioactive materials; and

(f) Such other substances, materials and wastes which are or become regulated as hazardous or toxic under applicable local, state or federal law, or the United States government, or which are classified as hazardous or toxic under federal, state, or local laws or regulations during the Period in which Borrower owns the Property.

Section 6.06 REQUIREMENTS OF ENVIRONMENTAL LAWS . “ Requirements of Environmental Laws ” means all requirements related to the Property imposed by any law, rule, order, or regulation of any federal, state, or local executive, legislative, judicial, regulatory, or administrative agency, which relate to (a) exposure to Hazardous Materials; (b) pollution or protection of the air, surface water, ground water, land; (c) solid, gaseous, or liquid waste generation, treatment, storage, disposal, or transportation; or (d) regulation of the manufacture, processing, distribution and commerce, use, or storage of Hazardous Materials.

ARTICLE VII

CASUALTY, CONDEMNATION AND RESTORATION

Section 7.01     BORROWER’S REPRESENTATIONS . Supplementing Section 2.01(x) , Borrower represents and warrants that except as expressly approved by Lender in writing, no casualty or damage to, or destruction in whole or in part of, the Property by fire or other casualty (a “ Casualty ”) that would cost more than Fifty Thousand and No/100 Dollars ($50,000.00) to restore or replace has occurred which has not been fully restored or replaced.

Section 7.02     CASUALTY . If the Property shall be subject to a Casualty, Borrower shall promptly commence and diligently prosecute the completion of the repair and restoration of the Property substantially to the condition the Property was in immediately prior to such Casualty, with such alterations as may be reasonably approved by Lender (a “ Restoration ”) and otherwise in accordance with Section 7.04 hereof. Borrower shall give prompt notice of any such damage in excess of One Million and No/100 Dollars ($1,000,000.00), which shall include any damages or claims in connection with a human person being injured, to Lender. Borrower shall pay all costs of such Restoration which are not covered by insurance. Upon prior written notice to Borrower, Lender may, but shall not be obligated to, make proof of loss if not made promptly by Borrower.

Section 7.03     CONDEMNATION . Borrower shall promptly give Lender notice of the actual or threatened (upon receipt by Borrower of written notice of such threat) commencement of any proceeding for the Condemnation of the Property and shall deliver to Lender copies of any and all papers served in connection with such proceedings. Lender may participate in any such proceedings, and Borrower shall from time to time deliver to Lender all instruments requested by it to permit such participation. Borrower shall, at its expense, diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi‑public authority through Condemnation or otherwise (including but not limited to any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower shall continue to pay the Debt at the time and in the manner provided for its payment in the Note and in this Security Instrument and the Debt shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the Debt

pursuant to the terms and conditions of this Security Instrument. Lender shall not be limited to the interest paid on the Award by the condemning authority but shall be entitled to receive out of the Award interest at the rate or rates provided herein or in the Note. If the Property or any portion thereof is taken by a condemning authority, Borrower shall promptly commence and diligently prosecute the Restoration of the Property and otherwise comply with the provisions of Section 7.04 hereof. If the Property is sold, through foreclosure or otherwise, prior to the receipt by Lender of the Award, Lender shall have the right, whether or not a deficiency judgment on the Note shall have been sought, recovered or denied, to receive the Award, or a portion thereof sufficient to pay the Debt.

Section 7.04     REQUIREMENTS FOR RESTORATION . The following provisions shall apply in connection with the Restoration of the Property:

(a) If the Net Proceeds (hereinafter defined) shall be less than Seven Million Five Hundred Thousand and No/100 Dollars ($7,500,000.00) and the costs of completing the Restoration shall be less than Seven Million Five Hundred Thousand and No/100 Dollars ($7,500,000.00), the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 7.04(b)(i)(G) and (H) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Security Instrument.

(b) If the Net Proceeds are equal to or greater than Seven Million Five Hundred Thousand and No/100 Dollars ($7,500,000.00) or the costs of completing the Restoration are equal to or greater than Seven Million Five Hundred Thousand and No/100 Dollars ($7,500,000.00) Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 7.04 . The term “ Net Proceeds ” for purposes of this Section 7.04 shall mean: (i) the net amount of all insurance proceeds received by Lender pursuant to Section 3.01(a)(i) , (iv) , (vi) , (ix) , (x) and (xi) hereof as a result of such damage or destruction, after deduction of its reasonable costs and expenses (including, but not limited to, reasonable counsel fees), if any, in collecting same (“ Insurance Proceeds ”), or (ii) the net amount of the Award, after deduction of its reasonable costs and expenses (including, but not limited to, reasonable counsel fees), if any, in collecting same (“ Condemnation Proceeds ”), whichever the case may be.

(i) The Net Proceeds shall be made available to Borrower for Restoration, provided that each of the following conditions are met:

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

(B) (1) In the event the Net Proceeds are Insurance Proceeds, less than thirty percent (30%) of the total floor area of the Improvements on the Property has been damaged, destroyed or rendered unusable as a result of such Casualty or (2) in the event the Net Proceeds are Condemnation Proceeds, less than ten percent (10%) of the land constituting the Property is taken and not more than ten percent (10%) of the total floor area of the Improvements is taken or rendered unusable as a result of such Condemnation;

(C) Leases requiring payment of rent, in the aggregate, in a percentage amount equal to or greater than the Gross Rent Percentage of the total gross rents from operations of the Property under executed and delivered Leases in effect as of the date of the occurrence of such Casualty or Condemnation, whichever the case may be, shall remain in full force and effect during and after the completion of the Restoration, notwithstanding the occurrence of any such Casualty or Condemnation, whichever the case may be;

(D) Borrower shall commence the Restoration as soon as reasonably practicable (but in no event later than sixty (60) days after such Casualty or Condemnation, whichever the case may be, occurs) and shall diligently pursue the same to satisfactory completion;

(E) Lender shall be reasonably satisfied that any operating deficits, including all Debt Service, which will be incurred with respect to the Property as a result of the occurrence of any such Casualty or Condemnation, whichever the case may be, will be covered out of (1) the Net Proceeds, (2) the insurance coverage referred to in Section 3.01(a)(iii) or 3.01(a)(x) , if applicable or (3) by other funds of Borrower;

(F) Lender shall be reasonably satisfied that the Restoration will be completed on or before the earliest to occur of (1) the earliest date required for such completion under the terms of any Leases, (2) such time as may be required under applicable zoning law, ordinance, rule or regulation in order to repair and restore the Property to the condition it was in immediately prior to such Casualty or Condemnation or to as nearly as possible the condition it was in immediately prior to such Casualty or Condemnation, as applicable, (3) the expiration of the insurance coverage referred to in Section 3.01(a)(iii) or 3.01(a)(x) or (4) the date which is not later than six (6) months prior to the Maturity Date (as defined in the Note);

(G) the Property and the use thereof after the Restoration will be in compliance with and permitted under all applicable zoning laws, ordinances, rules and regulations;

(H) the Restoration shall be done and completed by Borrower in an expeditious and diligent fashion and in compliance with all applicable governmental laws, rules and regulations (including, without limitation, all applicable environmental laws);

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

(J) Borrower shall deliver, or cause to be delivered, to Lender a signed detailed budget approved in writing by Borrower’s architect or engineer stating the entire cost of completing the Restoration, which budget shall be acceptable to Lender in Lender’s reasonable discretion;

(K) the Net Proceeds together with (1) any cash or cash equivalent deposited by Borrower with Lender, or (2) any Letter of Credit are sufficient in Lender’s reasonable discretion to cover the cost of the Restoration; and

(L) The Ground Lease shall remain in full force and effect during and after the completion of the Restoration, notwithstanding the occurrence of any such Casualty or Condemnation, whichever the case may be.

(ii) The Net Proceeds shall be held by Lender in an interest‑bearing account and, until disbursed in accordance with the provisions of this Section 7.04(b) , shall constitute additional security for the Debt and other obligations under the Loan Documents. The Net Proceeds shall be disbursed by Lender to Borrower from time to time during the course of the Restoration, upon receipt of evidence reasonably satisfactory to Lender that (A) all materials installed and work and labor performed (except to the extent that they are to be paid for out of the requested disbursement) in connection with the

Restoration have been paid for in full and (B) there exist no notices of pendency, stop orders, mechanic’s or materialman’s liens or notices of intention to file same, or any other liens or encumbrances of any nature whatsoever on the Property which have not either been fully bonded to the satisfaction of Lender and discharged of record or in the alternative fully insured to the satisfaction of Lender by the title company or companies issuing the Title Insurance Policy.

(iii) All plans and specifications required in connection with the Restoration shall be subject to prior review and acceptance in all respects by Lender, which acceptance shall not be unreasonably withheld or delayed, and by an independent consulting engineer selected by Lender (the “ Casualty Consultant ”). Lender shall have the use of the plans and specifications and all permits, licenses and approvals required or obtained in connection with the Restoration. The identity of the contractors, subcontractors and materialmen engaged in the Restoration, as well as the contracts under which they have been engaged, shall be subject to prior review and acceptance by Lender, which acceptance shall not be unreasonably withheld or delayed, and the Casualty Consultant. All reasonable costs and expenses incurred by Lender in connection with making the Net Proceeds available for the Restoration including, without limitation, reasonable counsel fees and disbursements and the Casualty Consultant’s fees, shall be paid by Borrower.

(iv) In no event shall Lender be obligated to make disbursements of the Net Proceeds in excess of an amount equal to the costs actually incurred from time to time for work in place as part of the Restoration, as certified by the Casualty Consultant, minus the Casualty Retainage. The Casualty Retainage shall in no event, and notwithstanding anything to the contrary set forth above in this Section 7.04(b) , be less than the amount actually held back by Borrower from contractors, subcontractors and materialmen engaged in the Restoration. The Casualty Retainage shall not be released until the Casualty Consultant certifies to Lender that the Restoration has been completed in accordance with the provisions of this Section 7.04(b) and that all approvals necessary for the re‑occupancy and use of the Property have been obtained from all appropriate governmental and quasi‑governmental authorities, and Lender receives evidence satisfactory to Lender that the costs of the Restoration have been paid in full or will be paid in full out of the Casualty Retainage; provided, however, that Lender will release the portion of the Casualty Retainage being held with respect to any contractor, subcontractor or materialman engaged in the Restoration as of the date upon which the Casualty Consultant certifies to Lender that the contractor, subcontractor or materialman has satisfactorily completed all work and has supplied all materials in accordance with the provisions of the contractor’s, subcontractor’s or materialman’s contract, the contractor, subcontractor or materialman delivers the lien waivers and evidence of payment in full of all sums due to the contractor, subcontractor or materialman as may be reasonably requested by Lender or by the title company or companies issuing the Title Insurance Policy, and Lender receives an endorsement to the Title Insurance Policy insuring the continued priority of the lien of the Security Instrument and evidence of payment of any premium payable for such endorsement. If required by Lender, the release of any such portion of the Casualty Retainage shall be approved by the surety company, if any, which has issued a payment or performance bond with respect to the contractor, subcontractor or materialman.

(v) Lender shall not be obligated to make disbursements of the Net Proceeds more frequently than once every calendar month.

(vi) If at any time the Net Proceeds or the undisbursed balance thereof shall not, in the reasonable opinion of Lender in consultation with the Casualty Consultant, be sufficient to pay in full the balance of the costs which are estimated by the Casualty Consultant to be incurred in connection

with the completion of the Restoration, Borrower shall deposit the deficiency (the “ Net Proceeds Deficiency ”) with Lender before any further disbursement of the Net Proceeds shall be made. The Net Proceeds Deficiency deposited with Lender shall be held by Lender and shall be disbursed for costs actually incurred in connection with the Restoration on the same conditions applicable to the disbursement of the Net Proceeds, and until so disbursed pursuant to this Section 7.04(b) shall constitute additional security for the Debt and other obligations under the Loan Documents.

(vii) The excess, if any, of the Net Proceeds and the remaining balance, if any, of the Net Proceeds Deficiency deposited with Lender after the Casualty Consultant certifies to Lender that the Restoration has been completed in accordance with the provisions of this Section 7.04(b) , and the receipt by Lender of evidence reasonably satisfactory to Lender that all costs incurred in connection with the Restoration have been paid in full, shall be (a) if the Net Proceeds are Insurance Proceeds, remitted by Lender to Borrower, provided no Event of Default shall have occurred and shall be continuing under the Note, this Security Instrument, any of the other Loan Documents, the Guaranty, or the Unsecured Indemnity Agreement, or (b) if the Net Proceeds are Condemnation Proceeds, be applied by Lender, subject to Section 7.04(c) , toward the payment of the Debt (without any Prepayment Fee) whether or not then due and payable in such order, priority and proportions as Lender in its sole discretion shall deem proper.

(c) All Net Proceeds not required (i) to be made available for the Restoration or (ii) to be returned to Borrower as excess Net Proceeds pursuant to Section 7.04(b)(vii) , may be retained and applied by Lender toward the payment of the Debt (without any Prepayment Fee) whether or not then due and payable in such order, priority and proportions as Lender in its sole discretion shall deem proper (including, in the event of severance of the Note and other Loan Documents into separate notes, deeds of trust, mortgages and other security documents as provided in this Security Instrument or in any of the other Loan Documents), or, at the discretion of Lender, the same may be paid, either in whole or in part, to Borrower for such purposes as Lender shall designate, in its discretion.

(d) In the event of foreclosure of the Security Instrument with respect to the Property, or other transfer of title to the Property in extinguishment in whole or in part of the Debt, all right, title and interest of Borrower in and to the insurance policies that are not blanket policies then in force concerning the Property and all proceeds payable thereunder shall thereupon vest in the purchaser at such foreclosure or Lender or other transferee in the event of such other transfer of title.

(e) Notwithstanding anything contained herein to the contrary, (i) the provisions of the Ground Lease, REA and the Anchor Leases with respect to insurance proceeds for the Restoration shall control in the event of any conflict between the provisions of the Ground Lease, REA and/or the Anchor Leases and the provisions of this Security Instrument, or any of the Loan Documents, and (ii) Lender hereby agrees to apply the proceeds of insurance to the Restoration to the extent required by, and in accordance with, the REA, Ground Lease and/or the Anchor Leases.

ARTICLE VIII

ADDITIONAL REPRESENTATIONS OF BORROWER

Section 8.01     INTENTIONALLY OMITTED .

Section 8.02      NON-RELATIONSHIP; OFAC; FIRPTA . Borrower represents that on the date hereof and shall use commercially reasonably efforts to furnish Lender on request evidence that: (a) no partner, member or stockholder having a direct interest in Borrower or any party that holds a direct or indirect controlling (as defined below) interest in Borrower is an officer or director of any Lender or is a son, daughter, mother, father or spouse of an officer or director of any Lender; (b) neither Borrower nor any partner, member or stockholder having a direct interest or indirect ownership interest (excluding shareholders of a company whose shares are listed and traded on a U.S. nationally recognized exchange) in Borrower is a “foreign person” in accordance with those codes and regulations relating to FIRPTA (Sections 1445 and 7701 of the Internal Revenue Code of 1986, as amended) and Borrower and Borrower’s sole member have received timely and properly completed IRS Form W-9 form from each of its partners, members and holders of any direct ownership in Borrower or in Borrower’s sole member; (c) neither Borrower nor Liable Party, nor any party that (x) directly or indirectly controls Borrower or the Liable Party, nor (y) directly or indirectly holds a ten percent (10%) or greater ownership interest in Borrower or the Liable Party, is or will be a person or entity appearing on a US Treasury Office of Foreign Assets Control (“ OFAC ”) list, with respect to which entering into transactions with such a person or entity would violate OFAC or any other law (notwithstanding the foregoing, neither the Borrower nor the Liable Party shall be required to make the representations set forth in this subsection (c) with respect to individual shareholders of entities regulated by the SEC, FINRA or the Federal Reserve); (d) neither Borrower nor any direct partner, member or stockholder of Borrower or any party that holds a direct or indirect controlling interest in Borrower has been convicted of, or been indicted for a felony criminal offense; (e) neither Borrower nor any direct partner, member or stockholder of Borrower or any party that holds a direct or indirect controlling interest in Borrower is in default under any mortgage, deed of trust, note, loan or credit agreement; and (f) neither Borrower nor any direct partner, member or stockholder of Borrower or any party that holds a direct or indirect controlling interest in Borrower is involved in any litigation, arbitration, or other proceeding or governmental investigation pending which if determined adversely would materially adversely affect Borrower’s ability to perform in accordance with the Loan Documents. For purposes of this provision, “ control ” of any person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of ownership interest, by contract or otherwise, and the terms “ controlling ” and “ controlled ” have meanings correlative to the foregoing.

Section 8.03      NO ADVERSE CHANGE . Supplementing Section 2.01(ee) hereof, Borrower represents and warrants that:

(a) There has been no material adverse change from the conditions shown in the letter agreement (including the rental income of the Property) submitted for the Loan by Borrower (“ Letter Agreement ”) or in the materials submitted by Borrower in support of the Letter Agreement or (B) the financial condition of Borrower or Liable Party, respectively as the case may be.

(b) Borrower has delivered to Lender true and correct copies of all Borrower’s organizational documents and except as expressly approved by Lender in writing, there have been no changes in who constitutes Borrower’s Constituents since the date that the Letter Agreement was executed by Borrower.

(c) None of Borrower, any of Borrower’s Constituents, or any SPE Entity is involved in any bankruptcy, reorganization, insolvency, dissolution or liquidation proceeding, and to the best knowledge of Borrower, no such proceeding is contemplated or threatened.

ARTICLE IX

EXCULPATION AND LIABILITY

Section 9.01     LIABILITY OF BORROWER . Upon the occurrence of an Event of Default, except as provided in this Section 9.01 , Lender will look solely to the Property and the security under the Loan Documents for the repayment of the Loan and will not enforce a deficiency or other judgment, order or claim against Borrower or any direct or indirect owner of Borrower or any partner, director, officer, trustee, shareholder, member, employee or principal of any such owner, nor any of their successors and assigns except as set forth in this Section 9.01 . However, nothing contained in this Section 9.01 shall limit the rights of Lender to proceed against Borrower and/or Liable Party, (i) to enforce any leases entered into by Borrower or its affiliates as tenant, guarantees, or other agreements entered into by Borrower in a capacity other than as borrower or any policies of insurance; (ii) to recover damages for fraud or intentional material misrepresentation; (iii) to recover any Net Proceeds which have not been applied in accordance with the terms of the Loan Documents, the Guaranty, and the Unsecured Indemnity Agreement, by Borrower or which, under the terms of the Loan Documents, the Guaranty, and the Unsecured Indemnity Agreement, should have been paid to Lender; (iv) to recover any tenant security deposits, tenant letters of credit or other deposits or fees paid to Borrower that are part of the collateral for the Loan or prepaid rents for a period of more than thirty (30) days which have not been delivered to Lender upon foreclosure; (v) to recover Rents and Profits received by Borrower after the first day of the month in which an Event of Default occurs and prior to the earlier of (1) the date such Event of Default is cured by Borrower or expressly waived in writing by Lender or (2) the date Lender (or any other third party purchaser at a foreclosure sale) acquires title to the Property, which have not been applied to the Loan or in accordance with the Loan Documents, the Guaranty, and the Unsecured Indemnity Agreement, to operating and maintenance expenses of the Property; (vi) to recover damages, costs and expenses arising from, or in connection with the provisions of this Security Instrument pertaining to Hazardous Materials or the Unsecured Indemnity Agreement; (vii) to recover losses, damages, reasonable costs and expenses arising from, or in connection with, any misrepresentation under or breach or violation of the provisions of the Security Instrument, Guaranty or Unsecured Indemnity pertaining to ERISA; (viii) to recover damages arising from Borrower’s failure to obtain Lender’s prior written consent to any subordinate mortgage financing encumbering the Property; (ix) to recover costs and damages arising from Borrower’s failure to pay Premiums or Impositions (to the extent its cash flow is sufficient to satisfy such obligations) in the event Borrower is not required to deposit such amounts with Holder pursuant to Section 2.05 of this Security Instrument; (x) to recover damages arising from breach in any material respect of any of the representations and warranties contained in Section 2.10(c) , (d) and (e) or those contained in the definition of “Special Purpose Entity” which are backward-looking representations, to the extent such breach results in a consolidation of Borrower with any of its Affiliates in a bankruptcy or other insolvency proceeding; (xi) to recover costs and damages arising from Borrower, Liable Party or any Affiliate of Liable Party voluntarily modifying the Ground Lease in violation of the Loan Documents in any material respect and in a manner adverse to Lender or Borrower but only to the extent such modification is binding on Lender; (xii) in the event that the fee owner of the Land is none of Borrower, Liable Party or any Affiliate of Liable Party (including, without limitation, any Qualifying Fee Owner Borrower Affiliate), to recover costs and damages arising from (1) Borrower, Liable Party or any Affiliate of Liable Party voluntarily terminating, cancelling or surrendering the Ground Lease or Borrower voluntarily rejecting the Ground Lease in an involuntary bankruptcy proceeding of Borrower if such surrender, termination, rejection or cancellation is effective and binding on the Lender, (2) in connection with any bankruptcy of the Ground Lessor, Borrower failing to object and diligently pursue such actions required by applicable law in such bankruptcy proceeding to object to any rejection, termination, cancellation, or surrender of the Ground Lease or (3) Lender seeking a new ground lease, enforcement of the leasehold mortgagee protections in the Ground Lease and Ground Lessor Estoppel or other litigation as the result of Lender or Servicer complying with the proviso of this subsection

(xii) or subsection (C) in the paragraph immediately below in connection with a rejection in bankruptcy, cancellation, surrender or termination of the Ground Lease; provided that with respect to clauses (1) and (2) of this subsection (xii), no recourse liability shall be imposed under this subsection (xii) unless Servicer or Lender shall pursue its rights under the Ground Lease and the Ground Lessor Estoppel, including making a request for a new ground lease (provided Lender or Servicer has the right to pursue the same and is not prohibited by any applicable law or legal requirement from pursuing such rights) and the Ground Lessor does not (x) rescind such rejection, surrender, termination or cancellation of the Ground Lease or (y) enter into a new ground lease with Lender or its nominee in accordance with the terms of the Ground Lease and the Ground Lessor Estoppel; (xiii) to recover costs and damages arising from Borrower or any Affiliate of Borrower acquiring the fee interest in the Land in violation of Section 17.03 hereof; and/or (xiv) to recover costs and damages arising from Borrower, Liable Party or any Affiliate of Liable Party allowing, permitting or causing the occurrence of one of more of the following Transfers without Lender’s prior written consent having been obtained: (A) a voluntary assignment of Borrower’s interest as ground lessee in the Ground Lease, a transfer by deed or similar conveyance of any portion of the fee title to the Improvements, and/or any Transfer of any portion of Borrower’s interest in the Leases or the Rents and Profits, except, in each case, as expressly permitted under the Loan Documents (it being acknowledged and agreed, for the avoidance of doubt, that any space leases (for less than all or substantially all of the Property), any easements or utility rights granted in the ordinary course of business and for the benefit of the Property, any mechanic’s, materialmen’s or similar Lien, any Lien securing an obligation to pay Impositions, any statutory lien or any notice of pendency are not covered by this item (xiv)(A)) or (B) a Transfer of the direct or indirect interests in Borrower in violation of Section 10.01 hereof. Notwithstanding anything to the contrary contained herein, in no event shall any direct or indirect partner in Borrower have any personal liability hereunder, except in its capacity as Liable Party, but in no event shall the direct or indirect partners of Liable Party have any personal liability hereunder.

The limitation of liability set forth in this Section 9.01 shall not apply and the Loan will be a recourse loan in the event that (A) Borrower commences a voluntary bankruptcy, (B) Borrower, its affiliates or any of its partners, members or other constituent entities owning direct or indirect controlling interest in Borrower, directly or indirectly participate in a collusive involuntary bankruptcy or collusive insolvency proceeding with respect to Borrower or (C) if the fee owner of the Land is Borrower, Liable Party or any Affiliate of Liable Party (including, without limitation, any Qualifying Fee Owner Borrower Affiliate), (1) Borrower, Liable Party or any Affiliate of Liable Party (including, without limitation, any Qualifying Fee Owner Borrower Affiliate) voluntarily terminates, cancels or surrenders the Ground Lease and such surrender, termination or cancellation is effective and binding on the Lender or (2) Borrower, Liable Party or any Affiliate of Liable Party (including, without limitation, any Qualifying Fee Owner Borrower Affiliate) rejects the Ground Lease in a bankruptcy proceeding; provided that with respect to clauses (1) and (2) of this subsection (C), no recourse liability shall be imposed under this subsection (C) unless Servicer or Lender shall pursue its rights under the Ground Lease and the Ground Lessor Estoppel, including making a request for a new ground lease (provided Lender or Servicer has the right to pursue the same and is not prohibited by any applicable law or legal requirement from pursuing such rights) and the Borrower and/or Affiliate of Liable Party (including, without limitation, any Qualifying Fee Owner Borrower Affiliate) does not (x) rescind such rejection, surrender, termination or cancellation of the Ground Lease or (y) enter into a new ground lease with Lender or its nominee in accordance with the terms of the Ground Lease and the Ground Lessor Estoppel.

ARTICLE X

CHANGE IN OWNERSHIP, CONVEYANCE OF PROPERTY

Section 10.01      CONVEYANCE OF PROPERTY, CHANGE IN OWNERSHIP AND COMPOSITION . (a) Except as otherwise permitted by the provisions of this Section 10.01 or except to the extent permitted elsewhere in the Loan Documents, the Guaranty, and the Unsecured Indemnity Agreement, Borrower will not (i) permit or suffer (by operation of law or otherwise) any sale, assignment, conveyance, transfer and/or other disposition of legal or equitable interest in all or any part of the Property, (ii) permit or suffer (by operation of law or otherwise) any sale, assignment, conveyance, transfer or other disposition of any direct or indirect ownership interests in Borrower (including, without limitation, any sale, assignment, conveyance, transfer or other disposition of (in each case, by operation of law or otherwise) any direct or indirect ownership interest in any SPE Entity), (iii) permit or suffer (by operation of law or otherwise) any mortgage, lien and/or other encumbrance of all or any part of the Property, (iv) permit or suffer (by operation of law or otherwise) any pledge, hypothecation, creation of a security interest in and/or other encumbrance of any direct or indirect ownership interest in Borrower (including, without limitation, any pledge, hypothecation, creation of a security interest in and/or other encumbrance of (in each case, by operation of law or otherwise) any direct or indirect ownership interest in any SPE Entity), (v) file a declaration of condominium with respect to the Property cause, or (vi) permit (A) any change in the organizational form of Borrower, any SPE Entity or any TRS Subsidiary or (B) any merger, reorganization, dissolution of Borrower or the general partners or members of Borrower (by operation of law or otherwise), including, without limitation, any conversion of the Borrower or any member or general partner of the Borrower to a limited partnership, a limited liability partnership or a limited liability company (any of the foregoing, a “ Transfer ”).

(b)    Notwithstanding paragraph (a) above, a sale or conveyance by Borrower of the Property (not including a mortgage, lien, and/or other encumbrance) is permitted at any time and from time to time during the term of the Loan, provided that each of the following conditions have been satisfied:

(i) (A) prior to a Securitization, Borrower has obtained the prior consent of Lender, which consent shall not be unreasonably withheld with respect to a sale or conveyance by Borrower of the Property to (I) a Sponsor Affiliate or (II) any Person described in clauses (a) through (f) of the definition of Permitted Owner (except clause (f), which Lender may approve or disapprove in its sole discretion, subject to the terms of such provision), and (B) after a Securitization, the Rating Agencies shall have confirmed that such sale or conveyance to such transferee shall not, in and of itself, result in a downgrade, qualification or withdrawal of the then current ratings assigned to the Securities; provided, however, this clause (i)(B) shall not apply to any sale or conveyance by Borrower of the Property to a Sponsor Affiliate provided that the remaining conditions in this Section 10.01 are satisfied;