Exhibit 10.1

EXECUTION VERSION

AGREEMENT OF PURCHASE AND SALE

THIS AGREEMENT OF PURCHASE AND SALE (“ Agreement ”) made as of the 10 ^th day of April, 2019 by and between MB-REEC HOUSTON PROPERTY OWNER LLC, a Delaware limited liability company, having an address c/o Magnum Real Estate Group, 594 Broadway, Suite 1010, New York, New York 10012 (“ Seller ”) and ARG NYC196ORCHARD, LLC, a Delaware limited liability company, having an address c/o AR Global, 405 Park Avenue, New York, New York 10022 (“ Purchaser ”).

WITNESSETH:

1.1.        Seller agrees to sell and convey to Purchaser, and Purchaser agrees to purchase from Seller, upon the terms and conditions hereinafter contained, all right, title and interest of Seller in and to:

(a)       Those certain commercial condominium units designated as Lot 1321 (“ Unit RTL1 ”), Lot 1322 (“ Unit RTL2 ”) and Lot 1323 (“ Unit COMM ”) in Block 412 of the Borough of Manhattan on the Tax Map of the Real Property Assessment Department of the City of New York and on the floor plans of the Building filed with the Real Property Assessment Department of The City of New York on December 8, 2017, as Condominium Plan No. 2790 and also filed in the Register’s Office on December 21, 2017, as Condominium Map No. 2017000466298 (each of Unit RTL1, Unit RTL2 and Unit COMM, individually a “ Unit ” and collectively, the “ Units ”), which Units are located in the building known as 196 Orchard Street and having an address at 196 Orchard Street, New York, New York 10002 (the “ Building ”), such Building lying and being situated in the Borough of Manhattan, City, County and State of New York (such land upon which the Building is erected, shall be referred to as the “ Land ”, and shall be more particularly described on Exhibit A annexed hereto); said Units being designated and described in a certain declaration dated October 18, 2017 establishing a plan for condominium ownership of the Building, made by Seller as the sponsor under the Condominium Act of the State of New York (Article 9-B of the Real Property Law of the State of New York), which declaration was recorded in the Office of the Register of the City of New York, County of New York (“ Register’s Office ”) on December 21, 2017, as CRFN 2017000466397 (the “ Declaration ”). The condominium established by the Declaration and the other Condominium Documents (as hereinafter defined) is known as the 196 Orchard Condominium (the “ Condominium ”).

(b)       An undivided 6.7078% interest in the Common Elements (as such term is defined in the Declaration and which term shall be deemed to include Seller’s right, title and interest in any limited common elements attributable to or used in connection with the applicable Unit) appurtenant to Unit RTL1, an undivided 13.5769% interest in the Common Elements appurtenant to Unit RTL2 and an undivided 19.8001% interest in the Common Elements appurtenant to Unit COMM (collectively, the “ Common Interests ”).

(c)        All fixtures, machinery, tangible personal property and equipment (excluding furniture, furnishings, equipment and other personal property of the Tenants (as hereinafter defined)) used in connection with or attached or appurtenant to or at or upon the Units as of the date hereof, including, without limitation, such fire protection, heating, lighting, plumbing, electrical, air conditioning systems, hot water heaters, appliances, carpeting, furnaces, motors, boiler pressure systems and equipment, security systems equipment, rest room fixtures, shelving, partitioning and ventilating equipment as now exist on or about the Units, if any (collectively, the “ Tangible Property ”).

(d)        The interest of Seller (as landlord) in and to the Leases (as hereinafter defined) of all or any portion of the Units, and security deposits, if any, held by Seller thereunder on the Closing Date (as hereinafter defined).

(e)        All rights, privileges, grants and easements appurtenant to Seller's interest in the Units, including, without limitation, all of Seller's right, title and interest, if any, in and to all easements, licenses, covenants and other rights-of-way or other appurtenances used in connection with the beneficial use and enjoyment of the Units (the “ Intangible Property ”).

The Land, together with the Building, is sometimes known as the “ Real Property ”. The Units, the Common Interests, the Tangible Property, Seller’s interest in the Leases, and the Intangible Property are sometimes collectively referred to herein as the “ Property ”.

1.2         Seller, as sponsor of the Condominium, intends to file (i) a Thirteenth Amendment to the Offering Plan of 196 Orchard Condominium (the “ 13 ^th Amendment ”), substantially in the form attached hereto as Exhibit L-1 ; (ii) a Fourteenth Amendment to the Offering Plan of 196 Orchard Condominium (the “ 14 ^th Amendment ”), substantially in the form attached hereto as Exhibit L-2 ; and (iii) an amendment to the Condominium Declaration and By-Laws to incorporate those points enumerated in the annexed Exhibit N (the “ Dec/By-Law Amendment ”, and together with the 13 ^th Amendment, the 14 ^th Amendment, collectively, the “New Condominium Documents ”).

1.2.1        Pursuant to the 13 ^th Amendment, Seller (as sponsor of the Condominium), intends to offer the Units for sale for the prices set forth therein.

1.2.2        Pursuant to the 14 ^th Amendment, Seller (as sponsor of the Condominium) intends to create a Non-Residential Storage Unit consisting of approximately 429 square feet (the “ NRSU ”) within the Condominium by subdividing that portion of Unit RTL2 designated on the 14 ^th Amendment and creating a new tax lot therefor. Notwithstanding the fact that the 14 ^th Amendment has not yet been accepted for recordation by the applicable governmental and/or quasi-governmental agencies and notwithstanding the form of 14 ^th Amendment set forth in Exhibit L-2 , in the event that the Condominium determines to resume common charges in accordance with the Eleventh Amendment to the Offering Plan (the “ 11 ^th Amendment ”), the final form of 14 ^th Amendment may contain language disclosing the expiration of the Waiver Period (as such term is defined in the “ 11 ^th Amendment ”). For the avoidance of doubt, all references in this Agreement to “Unit RTL2” shall refer to the description of Unit RTL2 contained in the 14 ^th Amendment.

1.3         Seller shall not sell, assign, transfer or deliver to Purchaser and Purchaser shall not purchase, acquire or accept from Seller, except as expressly set forth in this Agreement (including, without limitation, Section 6 herein), any rights and interests and obligations of Seller as owner of the Property arising prior to the Closing (as hereinafter defined) (including, without limitation, tax refunds and, subject to Section 11 hereof, casualty and condemnation proceeds) attributable solely to periods prior to the Closing.

2.1.        The Property is sold and shall be conveyed subject to the following (the “ Permitted Exceptions ”):

2.1.1.        The Condominium Documents, together with (i) the 13 ^th Amendment substantially in the form annexed as Exhibit L-1, (ii) the 14 ^th Amendment substantially in the form annexed as Exhibit L-2 as same may be modified in accordance with the provisions of Section 1.2.2 of this Agreement, and (iii) the Dec/By-Law Amendment incorporating the points on the annexed Exhibit N .

2.1.2.        All presently existing and future liens for unpaid real estate taxes and water and sewer charges attributable solely to the Units and not due and payable as of the Closing Date (as hereinafter defined), subject to adjustment as hereinbelow provided.

2.1.3.        All present and future zoning, building, environmental and other laws, ordinances, codes, restrictions and regulations of all governmental authorities having jurisdiction with respect to the Property, including, without limitation, landmark designations and all zoning variances and special exceptions, if any (collectively, “ Laws and Regulations ”), provided the then-current use of the Units, each in accordance with its respective Lease, as of the Closing Date do not violate such Laws and Regulations.

2.1.4.        All covenants, restrictions and rights and all easements and agreements for the erection and/or maintenance of water, gas, steam, electric, telephone, sewer or other utility pipelines, poles, wires, conduits or other like facilities, and appurtenances thereto, over, across and under the Property existing as of the Closing Date (collectively, “ Rights ”), provided none of the foregoing imposes any monetary obligation on the owner of the Units, materially interferes with the current use of any Unit or gives any Tenant the right to terminate its Lease or abate the payment of rent thereunder.

2.1.5.        State of facts shown on or by survey prepared by American Surveying and Mapping, Inc. dated March 6, 2019 (and last revised March 20, 2019) (collectively, “ Facts ”).

2.1.6.        Rights of those certain tenants of the Units (“ Tenants ”) as tenants only, with no rights or options to purchase, pursuant to the leases with Seller, as more particularly described on the rent roll (the “ Rent Roll ”) set forth on Exhibit B annexed hereto and made a part hereof (the leases set forth on the Rent Roll are each a “ Lease ”, and collectively, the “ Leases ”).

2.1.7.        All violations of building, fire, sanitary, environmental, housing and similar Laws and Regulations now or hereafter noted on the Title Report (as hereinafter defined) or any continuation thereof through and including the Closing Date affecting the Units (collectively, “ Violations ”); provided , however , that (i) Seller shall pay at Closing any fines or penalties arising from such Violations which are in a liquidated amount and are set forth on the Title Report or any continuation thereto; and (ii) Seller shall use commercially reasonable efforts to cure all Seller-Obligated Violations (as hereinafter defined) and/or to have such Seller-Obligated Violations removed of record prior to the Closing in accordance with the provisions of Section 2.7 of this Agreement, provided that (x) Seller’s failure or inability to cure or remove of record any Seller-Obligated Violation shall in no event be deemed to be a default or breach by Seller of this Agreement or a failure of a condition precedent to Purchaser’s obligations under this Agreement, and shall in no way impair Purchaser’s obligations under this Agreement or entitle Purchaser to delay the Closing or receive a credit against, or reduction of, the Purchase Price, and (y) at Closing, Seller shall execute and deliver the Seller Violation Undertaking Agreement (as hereinafter defined) with respect to all Seller-Obligated Violations which have not been cured or removed of record as of the Closing.

2.1.8.        Consents by Seller or any former owner of the Property or the Land for the erection of any structure or structures on, under or above any street or streets on which the Property may abut.

2.1.9.        Possible encroachments and/or projections of stoop areas, roof cornices, window trims, vent pipes, cellar doors, steps, columns and column bases, flue pipes, signs, piers, lintels, window sills, fire escapes, satellite dishes, protective netting, sidewalk sheds, ledges, fences, coping walls (including retaining walls and yard walls), air conditioners and the like, if any, on, under or above any street or highway, the Units, the Building, the Real Property, or the Property, so long as same does not materially interfere with the current use of any Unit.

2.1.10.        Minor variations between tax lot lines and lines of record title by and among the Units, the Building, the Real Property, the Property or any adjoining property.

2.1.11.        Any lien or encumbrance (including, without limitation, any mechanics’ and materialmen’s lien) the removal of which is the obligation of a Tenant pursuant to its respective Lease.

2.1.12        Standard printed exclusions from coverage to title contained in the ALTA form of owners title policy currently in use in New York State, identified on the Exclusions from Coverage page of the Title Report.

2.1.13        Any financing statements or chattel mortgages filed on a day more than five (5) years prior to the Closing.

2.1.14.        The matters described in Exhibit C attached hereto and made a part hereof.

2.1.15.        Any restrictive covenants, conditions, agreements, reservations, encroachments, easements and rights of way of record as of the date hereof and set forth on Schedule B of the Title Report, provided that same do not prevent the current use of the Units or the Real Property.

2.1.16.       Designation of the Building as an historical landmark or being within a landmark district.

2.1.17.        A certificate of occupancy covering each of the Units so long as same permit(s) the lawful use of the Unit(s) in accordance with the applicable Lease affecting such Unit in effect as of the Closing Date, as same may be modified or amended, provided that no such modification or amendment shall materially interfere with the current use of the applicable Unit without the necessity of a special permit or variance.

2.1.18.        Any lien or encumbrance caused (directly or indirectly) by the Purchaser, or created with the prior written approval of Purchaser.

2.1.19.        Any other matter which the Title Company (as hereinafter defined) may raise as an exception to title, provided the Title Company will, to Purchaser’s reasonable satisfaction (in its sole and absolute discretion) affirmatively insure over (at no additional cost to Purchaser) such that neither Purchaser’s title to the Units nor the current use of the Units will be adversely and materially affected.

2.1.20.        The Seller NRSU Lease (as hereinafter defined), in the event that such lease is executed by the parties at Closing in accordance with the provisions of this Agreement.

2.2.        Purchaser agrees promptly upon the execution of this Agreement at its sole cost and expense to cause title to the Property to be examined by Chicago Title Insurance Company or any other reputable title insurance company licensed to do business in the State of New York (the “ Title Company ”) and shall direct the Title Company to deliver copies of such title report (the “ Title Report ”) to Seller's attorney promptly following the delivery of same to Purchaser. Purchaser further agrees that not later than the date which is ten (10) Business Days (as hereafter defined) following Purchaser's receipt of the Title Report, Purchaser will furnish to Seller's attorneys a writing (the “ Title Report Objection Notice ”) specifying any matters disclosed by the Title Report, other than the Permitted Exceptions, to which Purchaser objects. Purchaser’s failure to deliver the Title Report Objection Notice to Seller on or prior to 5:00 P.M. New York City Time on the date which is ten (10) Business Days following Purchaser’s receipt of the Title Report shall constitute Purchaser’s irrevocable acceptance of the Title Report and Purchaser shall be deemed to have unconditionally waived any right to object to any matters set forth therein. If, after giving the Title Report Objection Notice to Seller, continuation reports or other written evidence, indicating any matters affecting title to the Property which are not Permitted Exceptions, receipt of such continuation reports or other written evidence of such title defects by Seller’s attorneys shall constitute notice of objection to such title defects as if same were set forth in the Title Report Objection Notice. For the avoidance of doubt, Purchaser agrees and acknowledges it is not a condition precedent to Purchaser’s obligation to close in accordance with this Agreement that the Title Company issue, or Purchaser obtain, an owner’s policy of title insurance with respect to Purchaser’s acquisition (or a lender’s policy of title insurance in conjunction with any relating financing) of the Property; provided, however, that Purchaser and its lender shall have the option of obtaining title insurance.

2.3.        Seller shall have ten (10) Business Days after receipt of the applicable Title Report Objection Notice or continuation reports or other written evidence, indicating any matters affecting title to the Property which are not Permitted Exceptions, as applicable, or if the foregoing are received less than ten (10) Business Days before the Closing Date, two (2) Business Days prior to the Closing Date, to either (x) notify Purchaser that Seller will pay, bond or escrow the funds necessary to cure the matters set forth (or deemed set forth) in the Title Report Objection Notice at or prior to the Closing or (y) notify Purchaser that Seller is unable or unwilling to cure such objections (subject to the following provisions of this paragraph).

2.3.1          If Seller notifies Purchaser within said ten (10) Business Days (or earlier, as applicable) that it is unable or unwilling to eliminate any of the matters set forth (or deemed set forth) in the Title Report Objection Notice on or prior to the Closing Date unless the same is waived by Purchaser in writing (a “ Seller Objection Notice ”), then, Purchaser may elect by notice to Seller to be delivered within five (5) Business Days following receipt of the Seller Objection Notice (or if the foregoing is received less than five (5) Business Days before the Closing Date, by the Closing Date) to either: (i) accept the Units subject to such matters without abatement of the Purchase Price, in which event such matters shall be deemed to be Permitted Exceptions, or (ii) terminate this Agreement by written notice given to Seller and Escrow Agent (as hereinafter defined) delivered on or promptly after the date scheduled for the Closing, in which event Escrow Agent shall repay to Purchaser the Downpayment (as hereinafter defined), together with any interest earned thereon, subject to Section 23 hereof.

2.3.2          If Seller shall fail to notify Purchaser that it is unable or unwilling to eliminate any of the matters set forth (or deemed set forth) in the Title Report Objection Notice, then Seller shall be deemed to have elected not to cure such matters. If Purchaser shall fail to deliver the termination notice described in Section 2.3.1(ii) above, Purchaser shall be deemed to have made the election under Section 2.3.1(i) above. In the event Purchaser makes the election described in Section 2.3.1(ii) above, this Agreement shall thereupon be deemed canceled and become void and of no further effect, and neither party hereto shall have any obligations of any nature to the other hereunder or by reason hereof, except for any provisions herein that expressly recite that they survive such termination.

2.3.3          Subject to the terms of this Agreement, Seller shall not be required to take or bring any action or proceeding or any other steps to remove any defect in or objection to title or to fulfill any condition precedent to Purchaser's obligations under this Agreement or to expend any moneys therefor, nor shall Purchaser have any right of action against Seller therefor, at law or in equity.

2.3.4          If, on the Closing Date, Seller fails or is unable to convey to Purchaser title to the Property subject to and in accordance with the provisions of this Agreement, Seller shall be entitled, upon written notice delivered to Purchaser on or prior to the Closing Date, to reasonable adjournments of the Closing one or more times for a period not to exceed the earlier of (i) forty-five (45) days in the aggregate and (ii) the expiration of Purchaser’s mortgage commitment, to enable Seller to convey such title to the Property; provided that nothing contained in this Section 2.3.4 shall be deemed to create a mortgage contingency. If Seller does not so elect to adjourn the Closing, or if at the adjourned date Seller is unable to convey title subject to and in accordance with the provisions of this Agreement, Purchaser may terminate this Agreement by written notice, receive a refund of the Downpayment (together with all interest thereupon) and following such termination, neither party shall have any obligation to the other except for those provision which expressly survive this Agreement.

2.3.5          Notwithstanding anything set forth in this Agreement to the contrary, Purchaser is automatically deemed to have objected to and Seller shall, on or prior to the Closing, pay, discharge or remove of record or cause to be paid, bonded, discharged or removed of record, at Seller’s sole cost and expense all of the following items disclosed by the Title Report or any update or continuation of same: (a) Voluntary Liens (as hereinafter defined) and (b) any matters set forth (or deemed set forth) in any Title Report Objection Notice which (i) would not fall within the definition of Voluntary Liens, (ii) were suffered or placed without Seller’s consent and (iii) which can be removed solely by the payment of a liquidated sum of money (which includes any sum to cure the defect). Seller will not be obligated to expend more than Five Hundred Thousand and 00/100 dollars ($500,000.00), in the aggregate (the “ Mandatory Cure Cap ”) to cure the matters described in clause (b) of this Section 2.3.5 . The term “ Voluntary Liens ” as used herein shall mean (x) matters evidencing a monetary lien against a Unit, including mortgages or other encumbrances on a Unit pertaining to financing such as assignments of leases and rents or UCC-1 financing statements, other than any mortgage being assigned at Closing to Purchaser’s lender in accordance with Section 27.3 of this Agreement; (y) consensual liens which Seller has knowingly suffered or allowed to be placed on the Property (including, without limitation, all judgments, mechanic’s or materialman’s liens or tax liens affecting any Unit); and (z) any other matters which Seller has agreed to cure pursuant to this Section 2.3.5 . Notwithstanding anything in this Agreement to the contrary, Purchaser shall have all of the rights and remedies provided for in Section 10.2 hereof (but subject to the provisions of Sections 2.3.5.1 and 2.3.5.2 , in the event that Purchaser elects to terminate this Agreement and seek a Downpayment Return (as hereinafter defined)) in the event Seller breaches its obligations under this Section 2.3.5 .

2.3.5.1          In the event that the matters described in Section 2.3.5(b) exceed the Mandatory Cure Cap (with respect to which Seller’s election to cure or not cure shall be included in the Seller Objection Notices, if at all), and Seller does not elect to expend amounts in excess thereof, Purchaser may, in its sole and absolute discretion, elect to either, (i) accept title subject to such matters described in Section 2.3.5(b) exceeding the Mandatory Cure Cap or (ii) exercise its rights and remedies provided for in Section 10.2 hereof; provided that in the event that Purchaser seeks a Downpayment Return (only with respect to this Section 2.3.5 ), Purchaser must deliver written notice to Seller and Escrow Agent of its election to terminate this Agreement (a “ MCC Termination Notice ”) in which event neither party hereto shall have any further rights or obligations hereunder, except for those rights and obligations which are expressly stated in this Agreement to survive the termination hereof.

2.3.5.2          Notwithstanding the foregoing, Seller may negate Purchaser’s proposed Downpayment Return and termination of this Agreement in accordance with Section 2.3.5.1 within the earlier of (i) five (5) Business Days’ of Seller’s receipt of a MCC Termination Notice and (ii) the Closing Date, in which event the Agreement shall not be terminated, the Closing shall occur as and when required pursuant to this Agreement, at the Closing Purchaser shall receive a credit against the Purchase Price in the sum of all amounts required to cure the matters described in Section 2.3.5(b) hereof, regardless of whether such amounts are in excess of the Mandatory Cure Cap (less any portion of the Mandatory Cure Cap previously expended by Seller in connection with curing the matters described in Section 2.3.5(b) hereof), and Seller shall have no further obligation or liability with respect to any items set forth in Section 2.3.5 .

2.4.        Notwithstanding anything in Section 2.3 above to the contrary, Purchaser may at any time accept such title as Seller can convey, without reduction of the Purchase Price (as hereinafter defined) or any credit or allowance on account thereof or any claim against Seller. The acceptance of the Deed (as hereinafter defined) by Purchaser shall be deemed to be full performance of, and discharge of, every agreement and obligation on Seller's part to be performed under this Agreement, except for those obligations which expressly survive the Closing and as otherwise set forth in the documents to be delivered at Closing.

2.5.        If and only if the Closing shall occur, the amount of any unpaid taxes, assessments and water and sewer charges which Seller is obligated to pay and discharge, with interest and penalties, may at the option of Seller be allowed to Purchaser out of the balance of the Purchase Price (provided that Purchaser shall have no obligation in excess of the balance of the Purchase Price), if official bills therefor with interest and penalties thereon figured to said date are furnished to or obtained by the Title Company at the Closing for payment thereof.

2.6.        If the Property shall, at the time of the Closing, be subject to any liens such as for judgments or transfer, inheritance, estate, franchise, license or other similar taxes or any encumbrances or other title exceptions which would be grounds for Purchaser to reject title hereunder (other than Voluntary Liens), the same shall not be deemed an objection to title provided that, at the time of the Closing, either (a) Seller directs the Title Company, only in the event that Closing occurs, to use all or a portion of the Purchase Price and delivers to Purchaser and/or the Title Company at the Closing instruments in recordable form sufficient to satisfy and discharge of record such liens and encumbrances together with the cost of recording or filing such instruments (provided that, and for the avoidance of doubt, Purchaser shall have no obligation in excess of the Purchase Price), or (b) the Title Company will otherwise issue or bind itself to issue a policy which will insure Purchaser against collection thereof from or enforcement thereof against the Property.

2.7         Between the date hereof and the Closing Date, Seller shall use commercially reasonable efforts to cure, remove of record and/or cause to be removed of record at Seller’s sole cost and expense, (i) those Violations which were noted or issued against the Units on or after the date that Seller acquired title to the Land (each an “ Existing Seller-Obligated Violation ”; collectively the “ Existing Seller-Obligated Violations ”), and (ii) any Violation which shall be noted or issued against the Units between the date hereof and the Closing Date that is not a Tenant-Obligated Violation (as hereinafter defined) (each a “ New Seller-Obligated Violation ”; collectively, the “ New Seller-Obligated Violations ”; and together with the Existing Seller-Obligated Violations, each a “ Seller-Obligated Violation ”, and collectively the “ Seller-Obligated Violations ”). Notwithstanding the foregoing, Seller’s failure or inability to cure, remove of record and/or cause to be removed of record any Seller-Obligated Violation shall in no event be deemed to be a default or breach by Seller of this Agreement, or failure of a condition precedent to Purchaser’s obligations under this Agreement, and shall in no way impair Purchaser’s obligations under this Agreement or entitle Purchaser to delay the Closing or receive a credit against, or reduction of, the Purchase Price. In the event that any Seller-Obligated Violation has not been cured and remains of record as of the Closing Date, at the Closing, Seller shall deliver an undertaking on terms reasonably acceptable to Purchaser and Seller which shall obligate Seller to continue to use commercially reasonable efforts following the Closing to cause such Seller-Obligated Violation(s) to be cured and/or removed of record following the Closing Date at Seller’s sole cost and expense, provided that Purchaser shall provide Seller such cooperation (including but not limited to executing any applications or affidavits as reasonably required by Purchaser) required by Seller in furtherance thereof (the “ Seller Violation Undertaking Agreement ”). If Seller defaults under any of its obligations in this Section 2.7 , Purchaser shall have all of the rights set forth in Section 10.2 hereof.

2.7.1          For purposes of this Agreement, the term “Tenant-Obligated Violation” shall refer to any Violation noted or issued against the Units prior to the Closing Date, the removal of which is an obligation of a Tenant pursuant to its Lease.

2.7.2          Seller shall have no obligation to cure or cause any Tenant-Obligated Violation to be removed of record, nor shall Seller be obligated to deliver any escrow to the Title Company or take any action with respect to any Tenant-Obligated Violation, whether prior or subsequent to Closing.

3.1.         The purchase price payable to Seller for the Property is EIGHTY-EIGHT MILLION SEVEN HUNDRED FIFTY THOUSAND AND 00/100 DOLLARS ($88,750,000.00) (the “ Purchase Price ”), subject to such apportionments, adjustments and credits as are provided herein. The Purchase Price shall be allocated among the Units as follows: THIRTY-SIX MILLION THREE HUNDRED EIGHTY-SEVEN THOUSAND FIVE HUNDRED AND 00/100 DOLLARS ($36,387,500.00) of the Purchase Price shall be allocated to Unit COMM, TWENTY-NINE MILLION TWO HUNDRED EIGHTY-SEVEN THOUSAND FIVE HUNDRED AND 00/100 DOLLARS ($29,287,500.00) of the Purchase Price shall be allocated to Unit RTL1 and TWENTY-THREE MILLION SEVENTY-FIVE THOUSAND AND 00/100 DOLLARS ($23,075,000.00) of the Purchase Price shall be allocated to Unit RTL2.

3.2.         The Purchase Price shall be payable as follows:

3.2.1.         FOUR MILLION FOUR HUNDRED THIRTY-SEVEN THOUSAND FIVE HUNDRED AND 00/100 ($4,437,500.00) DOLLARS (the “ Downpayment ”) shall be paid by Purchaser on or before such date which is two (2) Business Days from the date hereof by federal funds wire transfer to an account at such bank or banks as designated by Chicago Title Insurance Company, as escrow agent (in such capacity, the “ Escrow Agent ”). If the Downpayment is not made when due or the check for same is dishonored by the bank on which it is drawn, then (x) such failure shall constitute a material and incurable breach of this Agreement by Purchaser, and (y) Seller shall be entitled to immediately terminate this Agreement (without affording Purchaser any cure period).

3.2.2.          EIGHTY-FOUR MILLION THREE HUNDRED TWELVE THOUSAND FIVE HUNDRED AND 00/100 ($84,312,500.00) DOLLARS shall be paid to Seller on the date of the Closing, subject to the apportionments, adjustments and credits referenced herein, simultaneously with the delivery of the Deed by federal funds wire transfer of immediately available funds to an account at such bank or banks as shall be designated by Seller.

3.2.3           The Downpayment shall be held by Escrow Agent and disbursed in accordance with the terms and conditions of this Agreement. Any interest earned on the Downpayment shall be deemed to be part of the Downpayment and shall be paid together with the principal portion of the Downpayment, it being understood and agreed that any interest earned on the Downpayment shall be paid to the party entitled to the Downpayment and shall, upon the consummation of the transactions described in this Agreement at Closing (if at all), be the property of Seller and credited to the Purchase Price.

3.3.        Purchaser expressly agrees and acknowledges that Purchaser's obligations hereunder are not in any way conditioned upon or qualified by Purchaser's ability to obtain financing of any type or nature whatsoever ( i.e. , whether by way of debt financing or equity investment, or otherwise) to consummate the transaction contemplated hereby; provided , however , nothing in this Section 3.3 shall be interpreted as preventing Purchaser from seeking to obtain financing in connection with the transactions contemplated in this Agreement.

4.              Closing .         The closing (“ Closing ”) shall take place through an escrow closing with the Title Company, or, if required, at the offices of Purchaser's lender or its lender’s attorneys in the City of New York (provided that Seller shall always have the option to close in escrow with the Title Company), at 10:00 A.M. New York City time, on June 10, 2019 (such date as may be adjourned by Seller in accordance with the express provisions of this Agreement being herein referred to as the “ Closing Date ”). Notwithstanding the foregoing, upon Seller’s good faith belief that an adjournment of the Closing Date may permit the NRSU Subdivision (as hereinafter defined) to be completed prior to Closing, Seller may adjourn the Closing Date one or more times for a period not to exceed ten (10) days in the aggregate (such date being the “ Outside Closing Date ”) by delivering written notice to Purchaser and its counsel prior to the then-scheduled Closing Date. “Time shall be of the essence” with respect to the Closing Date and the Outside Closing Date, as applicable.

5.1         Except as may otherwise be expressly set forth in the Agreement, Purchaser is expressly purchasing the Property in its existing condition as of the date hereof, reasonable wear and tear excepted, “AS IS, WHERE IS, AND WITH ALL FAULTS” with respect to all facts, circumstances, conditions and defects. Subject to the terms of this Agreement, Seller has no obligation to determine or correct any such facts, circumstances, conditions or defects or to compensate Purchaser for same. Seller has specifically bargained for the assumption by Purchaser of all responsibility to investigate the Property, the Building, the Units, Laws and Regulations, the Condominium Documents (including the New Condominium Documents), Rights, Facts, Leases and Violations and of all risk of adverse conditions and has structured the Purchase Price and other terms of this Agreement in consideration thereof. At Closing, Purchaser shall have undertaken all such investigations of the Property, the Building, the Units, Laws and Regulations, the Condominium Documents (including the New Condominium Documents), Rights, Facts, Leases and Violations as Purchaser deemed necessary or appropriate under the circumstances as to the status of the Property and based upon same Purchaser is and will be relying strictly and solely upon such inspections and examinations and the advice and counsel of its own consultants, agents, legal counsel and officers and Purchaser is and will be fully satisfied that the Purchase Price is fair and adequate consideration for the Property, and by reason of all the foregoing, except as otherwise set forth in this Agreement, Purchaser assumes at Closing the full risk of any loss or damage occasioned by any fact, circumstance, condition or defect pertaining to the Property.

5.2         Seller hereby disclaims all warranties of any kind or nature whatsoever (including warranties of habitability and fitness for particular purposes), whether expressed or implied, including, without limitation, warranties with respect to the Property. Purchaser acknowledges that, Purchaser is not relying upon any representation of any kind or nature made by Seller, any of the Seller Related Parties (as hereinafter defined) or Broker (as hereinafter defined) with respect to the Property except as expressly set forth in this Agreement, the documents described in Section 8 of this Agreement and the Condominium Documents (including the New Condominium Documents), and that, in fact, no such representations were made except as expressly set forth in this Agreement, the documents described in Section 8 of this Agreement and the Condominium Documents (including the New Condominium Documents).

5.3         Seller makes no warranty with respect to the presence of Hazardous Materials (as hereinafter defined) on, above or beneath the Land (or any parcel in proximity thereto) or the Building, or in any water on or under the Land, or in any aspect or component of any of the Units. Purchaser's closing hereunder shall be deemed to constitute an express waiver of Purchaser's right to cause Seller to be joined in any action brought under any Environmental Laws (as hereinafter defined). The term “ Hazardous Materials ” shall mean (a) those substances included within the definitions of any one or more of the terms “hazardous materials,” “hazardous wastes,” “hazardous substances,” “industrial wastes,” and “toxic pollutants,” as such terms are defined under the Environmental Laws, or any of them, (b) petroleum and petroleum products, including, without limitation, crude oil and any fractions thereof, (c) natural gas, synthetic gas and any mixtures thereof, (d) asbestos and or any material which contains any hydrated mineral silicate, including, without limitation, chrysotile, amosite, crocidolite, tremolite, anthophylite and/or actinolite, whether friable or non-friable, (e) polychlorinated biphenyl (“PCBs”) or PCB-containing materials or fluids, (f) radon, (g) any other hazardous or radioactive substance, material, pollutant, contaminant or waste, and (h) any other substance with respect to which any Environmental Law or governmental authority requires environmental investigation, monitoring or remediation. The term “ Environmental Laws ” shall mean all federal, state and local laws, statutes, ordinances and regulations, now or hereafter in effect, in each case as amended or supplemented from time to time, including, without limitation, all applicable judicial or administrative orders, applicable consent decrees and binding judgments relating to the regulation and protection of human health, safety, the environment and natural resources (including, without limitation, ambient air, surface, water, groundwater, wetlands, land surface or subsurface strata, wildlife, aquatic species and vegetation), including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. §§ 9601, et seq.), the Hazardous Material Transportation Act, as amended (49 U.S.C. §§ 1801, et seq.), the Federal Insecticide, Fungicide, and Rodenticide Act, as amended (7 U.S.C. §§ 136, et seq.), the Resource Conservation and Recovery Act, as amended (42 U.S. §§ 6901, et seq.) ("RCRA"), the Toxic Substance Control Act, as amended (42 U.S.C. §§ 7401, et seq.), the Clean Air Act, as amended (42 U.S.C. §§ 7401, et seq.), the Federal Water Pollution Control Act, as amended (33 U.S.C. §§ 1251, et seq.), the Occupational Safety and Health Act, as amended (29 U.S.C. §§ 651, et seq.), the Safe Drinking Water Act, as amended (42 U.S.C. §§ 300f, et seq.), any state or local environmental law or counterpart or equivalent of any of the foregoing, and any Federal, state or local transfer of ownership notification or approval statutes.

5.4         Purchaser acknowledges that Purchaser has had an adequate opportunity to make such legal, factual and other inquiries and investigation as Purchaser deems necessary, desirable or appropriate with respect to the Property. Such inquiries and investigations of Purchaser shall be deemed to include but shall not be limited to the review of any leases and contracts pertaining to the Property, the physical components of all portions of the Property, subject to Section 2.1.5 hereof, such state of facts as an accurate survey and inspection would show, the present and future zoning ordinances, resolutions and regulations of the City, County and State where the Property is located and the value and marketability of the Property. Purchaser, in purchasing the Property, has relied solely upon the tests, analyses, inspections and investigations that Purchaser makes, or has had the right to make, and opted not or otherwise failed to make, and not in reliance upon any alleged representation made by or on behalf of Seller except the express representations set forth herein and in the documents described in Section 8 of this Agreement and in the Condominium Documents (including the New Condominium Documents).

5.5         Without in any way limiting the generality of the preceding paragraphs, except as otherwise provided in this Agreement, Purchaser shall rely solely upon Purchaser’s own knowledge of the Property based on its investigation of the Property and its own inspection of the Property in determining the Property’s physical condition, as well as its review of the Building and all other aspects of the condominium regime of ownership. Following the Closing, Purchaser releases Seller, the Seller Related Parties, and their respective successors and assigns from and against any and all claims which Purchaser has or may have arising from or related to any matter or thing related to or in connection with the Building, the Property and/or the condominium regime of ownership, including the documents and information referred to herein, the Leases and the Tenants thereunder, any construction defects, errors or omissions in the design or construction and any environmental conditions, and Purchaser shall not look to Seller or the Seller Related Parties in connection with the foregoing for any redress or relief; provided , however , for the avoidance of doubt, the foregoing release shall not apply to any claims relating to a breach of (i) any of Seller’s representations, warranties, covenants and/or indemnities set forth in this Agreement which survive Closing, (ii) the documents described in Section 8 of this Agreement and/or (iii) Seller’s responsibilities as “sponsor” under the Condominium Documents (including the New Condominium Documents). This release shall be given full force and effect according to each of its express terms and provisions including those relating to unknown and unsuspected claims, damages and causes of action. The provisions of this Section 5 shall survive the termination of this Agreement or the Closing and shall not be deemed to have merged into any of the documents executed or delivered at the Closing (subject to the proviso contained in the penultimate sentence). To the extent required to be operative, the disclaimers and warranties contained herein as “conspicuous” disclaimers for purposes of any applicable law, rule, regulation or order.

6.1.        At the Closing, the following items shall be apportioned with respect to each Unit between the parties as of 11:59 PM on the day preceding the actual Closing Date. Any errors in the apportionments pursuant to this Section 6 shall be corrected by appropriate re-adjustment between Seller and Purchaser post-closing, provided that notice of any such error, with supporting calculations, shall be given by Purchaser to Seller or by Seller to Purchaser, as the case may be, no later than ninety (90) days after the Closing, if ascertainable within such period, it being understood and agreed that if any such items or errors are not ascertainable at the Closing or within ninety (90) days thereafter, the apportionment shall be made subsequent to the Closing when the charge or error is determined or otherwise reduced to a dollar amount, but in no event shall any apportionments be made more than one (1) year after the Closing Date. The items to be apportioned are:

6.1.1       (a) Rents payable by the Tenants which are collected on or prior to the Closing in respect of the month (or other applicable collection period) in which the Closing occurs (the “ Closing Month ”), on a per diem basis, based upon the number of days in the Closing Month prior to the Closing Date (which shall be allocated to Seller) and the number of days in the Closing Month on and after the Closing Date (which shall be allocated to Purchaser).

(b)          If, at the Closing rent is past due by any Tenant, Purchaser and Seller agree that the first moneys received by Purchaser or Seller from such Tenant(s) shall be disbursed as follows:

(i)       First, to Purchaser and Seller in an amount equal to all rents owing by such Tenant(s) in respect of the Closing Month, apportioned as set forth at Section 6.1.1(a) ;

(ii)       Next, to Purchaser, in an amount equal to all other rent owing by such Tenant(s) to Purchaser in respect of all periods after the Closing Month;

(iii)       Next, to Seller, in an amount equal to all other rent owing by such Tenant(s) to Seller in respect of all periods prior to the month prior to the Closing Month; and

(iv)       The balance, if any, to Purchaser.

Each party agrees to (i) remit reasonably promptly to the other the amount of such rents to which such party is so entitled and to account to the other party monthly in respect of same, and (ii) provide to the other, upon request therefor, such detailed documents and information as are reasonably requested to permit the requesting party to ascertain the accuracy of any post-closing adjustment, apportionment or other payment made pursuant to this Agreement. Any rent received by Seller after the Closing shall be apportioned and remitted, if applicable, as hereinabove provided.

(c)          Any rental payments for fuel pass-alongs, so-called escalation rent or charges based upon impositions including real estate taxes and operating expenses (as described below), operating expenses, labor costs, cost of living increases, percentage rents or other sums payable by the Tenants under the Leases in addition to rent, or like items (collectively, “ Overage Rent ”) shall be prorated on an “if, as and when collected” basis. If any Overage Rent is payable after the Closing Date, then such Overage Rent for the applicable accounting period in which the Closing occurs shall be apportioned subsequent to the Closing once such amounts have been reduced to a dollar amount. Purchaser agrees that it will pay over to Seller, within twenty (20) days after Purchaser’s receipt thereof, a prorated amount of such Overage Rent based upon the portion of such accounting period which occurs prior to the Closing (to the extent not theretofore collected by Seller on account of such Overage Rent prior to Closing). In addition, Purchaser agrees that if it receives any Overage Rent payable subsequent to the Closing with respect to an accounting period which expired prior to the Closing, Purchaser will pay, within twenty (20) days after Purchaser’s receipt thereof, the entire amount to Seller. The following shall apply to the extent Overage Rent with respect to any of the Leases is billed on the basis of landlord’s estimates or an annual budget, which is subject to subsequent reconciliation and readjustment with each such tenant at the end of the applicable year:

(i)       At least two (2) Business Days prior to the Closing Date, Seller shall use commercially reasonable efforts to provide Purchaser with a reconciliation statement for calendar year 2019 through the end of the calendar month preceding the Closing Date, with all necessary supporting documentation, as to the Overage Rent paid by the tenants for calendar year 2019; provided that in the event that Seller fails to provide such reconciliation statement prior to the Closing, the Closing shall nevertheless take place, Seller shall provide the reconciliation statement as soon as possible following the Closing, and the parties shall thereafter adjust in accordance therewith. Such reconciliation statement shall indicate any difference between the Overage Rent paid by the Tenants (based on Seller’s actual, in place, annual 2019 budget for any items of Overage Rent) and the amount that should have been paid by the tenants through the Closing Date (based on the actual expenses covering such time period);

(ii)       If Seller has collected more from the Tenants on account of such Overage Rent than such actual amount for such time period (with it being acknowledged that such calculation shall be made only with respect to actually collected Overage Rent sums for such time period, and not any such sums that may be so receivable from Tenants), then the amount of such excess difference shall be credited to Purchaser at Closing;

(iii)       If Seller has collected less from the Tenants on account of such Overage Rents than such actual amount for such time period (with it being acknowledged that such calculation shall be made only with respect to actually collected Overage Rent sums for such time period, and not any such sums that may be so receivable from Tenants), then the amount of such under-collected rents shall be credited to Seller at Closing; and

(iv) Any Seller proposed prorations relating to Overage Rent set forth in this Section 6.1.1(c) shall be subject to Purchaser’s review and reasonable approval. Upon written request of either party to the other delivered on or before such date which is six (6) months following the Closing, which request shall set forth detailed documents and information substantiating the basis therefor, Overage Rent shall be reprorated as of Closing.

(e)          Subsequent to the Closing, Purchaser agrees that it shall promptly render bills for and shall exercise the same diligence Purchaser would utilize in the collection of any arrears due to it in accordance with the protocols of Purchaser and its parents and its affiliates in the collection of any rent due to Seller pursuant to this Agreement. Purchaser's obligation to pay over to Seller rents collected as provided in this Section 6.1.1 shall be an independent covenant of Purchaser and such payments shall be made promptly without any set off or deduction whatsoever. Notwithstanding anything to the contrary contained in this Agreement, Purchaser shall have no obligation to commence any legal action to collect any such rents or payments. Any rents or payments collected pursuant to any such legal proceedings shall be applied first to the payment of Purchaser’s actual third-party costs and expenses incurred in bringing and prosecuting such legal proceedings, and then disbursed between Seller and Purchaser in accordance with the terms of this Agreement. Provided that Purchaser complies with the provisions of this Section 6.1.1(e) , Seller shall have no right to commence an action against any Tenant subsequent to the Closing of any kind or nature and agrees that its sole right in respect of rents that pertain to the period prior to the actual Closing Date shall be the right to receive payments made by Purchaser pursuant to the terms of this Agreement. The provisions of this Section 6.1.1(e) shall survive the Closing for a period of nine (9) months.

6.1.2       Common charges of the Condominium applicable to the Units and attributable to the month in which the Closing actually occurs if the Condominium determines to resume common charges in accordance with the 11 ^th Amendment.

6.1.3.       Any assessments of the Condominium applicable to the Units which are or may become payable in installments on the basis of the period to which such installments are attributable. Seller shall pay all installments attributable to the period prior to the Closing and Purchaser shall pay any installments attributable to the period from and after the Closing. Any installment attributable to the period in which the Closing actually occurs shall be prorated in the manner described in Section 6.1.1(a) .

6.1.4.       Real estate taxes, unmetered water and sewer charges and vault charges, if any, and any and all other municipal or governmental assessments of any and every nature levied or imposed upon the Units in respect of the current fiscal year of the applicable taxing authority in which the Closing Date occurs (the “ Current Tax Year ”) shall be apportioned on a per diem basis based upon the number of days in the Current Tax Year prior to the Closing Date (which shall be allocated to Seller) and the number of days in the Current Tax Year on and after the Closing Date (which shall be allocated to Purchaser). If the Closing shall occur before the tax rate for the Current Tax Year is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the next preceding fiscal period applied to the latest assessed valuation. Promptly after the new tax rate is fixed for the fiscal period in which the Closing takes place, the apportionment of real estate taxes shall be recomputed. Upon the Closing Date and subject to the adjustment provided above, Purchaser shall be responsible for real estate taxes and assessments levied or imposed upon the Units payable in respect of the Current Tax Year and all periods after the Current Tax Year. In no event shall Seller be charged with or be responsible for any increase in the real estate taxes or assessments levied or imposed upon the Units resulting from the transfer of the Units herein contemplated or from any improvements made or Lease entered into at any time or for any reason. In the event that any assessments levied or imposed upon the Units are payable in installments, the installment for the Current Tax Year shall be prorated in the manner set forth above and Purchaser hereby assumes the obligation to pay any such installments due on and after the Closing Date.

6.1.5       Charges and fees due under contracts for the supply to the Units of heat, steam, electric power, gas, light, and telephone, if any, in respect of the billing period of the related service provider in which the Closing Date occurs (the “ Current Billing Period ”) on a per diem basis based upon the number of days in the Current Billing Period prior to the Closing Date (which shall be allocated to Seller) and the number of days in the Current Billing Period on and after the Closing Date (which shall be allocated to Purchaser) and assuming that all charges are incurred uniformly during the Current Billing Period (it being agreed that all deposits, if any, made by Seller as security under any such public service contracts shall be credited to Seller if such amounts remain on deposit after the Closing for the benefit of Purchaser; provided, however, that Seller shall be entitled in its sole discretion to receive a refund of such security deposits directly from any such service provider without credit to Purchaser).

6.1.6       Any prepaid charges or fees for transferable licenses and permits for the Units that are assigned and/or transferred to Purchaser.

6.2.        All other items of income and expense customarily apportioned in connection with sales of similar commercial condominium units in commercial buildings in the State and City of New York.

6.3.        There is a separate water meter installed exclusively for each of the Units. Each Tenant, pursuant to its Lease, is required to pay all water and sewer charges incurred with respect to its Unit. As such, at Closing, no water or sewer charges shall be apportioned between Purchaser and Seller, Purchaser shall look solely to the applicable Tenant(s) for the payment of any unpaid water or sewer charges, Purchaser shall take title subject to any such unpaid water meter charges owing by such Tenant(s), Seller shall not be required to give any escrow to the Title Company therefor, and same shall not be deemed an objection to title. To the extent that there are any water or sewer charges (including any fines resulting therefrom) for any Unit, relating to a period prior to any Tenant’s obligation to pay same, Seller shall pay such amounts at Closing, or deliver an escrow to the Title Company which is adequate to cause the Title Company to insure Purchaser for any such amounts through the Closing Date.

6.4.        Subject to Section 11 hereof, Seller shall not be required to assign any policies of insurance in respect of the Property to Purchaser and Purchaser shall be responsible for obtaining its own insurance as of the Closing Date. Purchaser shall take all necessary actions required to transfer all utility accounts to Purchaser as of the Closing Date and Seller agrees to reasonably cooperate with Purchaser in order to effectuate the transfer of all utility accounts to Purchaser.

6.5.        At Closing, Seller shall make or have made all payments required pursuant to Section 9.1.2.2 below, and Purchaser shall receive a credit against the Purchase Price from Seller for (a) the cost of any tenant improvement allowances under the Leases to the extent unpaid as of the actual Closing Date; (b) any work required to be performed by Seller (as landlord) under a respective Tenant’s Lease as of the actual Closing Date based upon the cost of either (i) an existing contract to perform such outstanding work, or (ii) as otherwise reasonably agreed to by Seller and Purchaser; and (c) any rent abatements, rent concessions or free rent for any period following the actual Closing Date set forth in any Tenant’s Lease; provided that Purchaser shall not receive a credit for any rent abatement or concession contained in any option which may be exercised by a Tenant under its Lease but has not been so exercised on or before the actual Closing Date. Prior to the Closing, Seller shall be solely responsible for performing any and all work required to be performed by the landlord under each Tenant’s Lease, and shall indemnify, defend and hold Purchaser and any of its respective direct or indirect members, partners, shareholders, officers, directors, employees or agents (collectively, the “ Purchaser Related Parties ”) harmless for any costs, liabilities, damages, fees, expenses (including reasonable attorney’s fees) and other obligations actually incurred by virtue of (x) any work required to be performed by the landlord with respect to a Tenant’s Lease; or (y) any tenant allowances required to be given to a Tenant prior to the Closing pursuant to its Lease or any extension or renewal thereof entered into prior to the date hereof. Subject to the foregoing, following the Closing, Purchaser shall be solely responsible to perform any and all work required to be performed by the landlord under a Tenant’s Lease and shall indemnify, defend and hold Seller and the Seller Related Parties harmless for any costs, liabilities, damages, fees, expenses (including reasonable attorneys’ fees) and other obligations which may arise by virtue of (x) any work required to be performed by the landlord with respect to a Tenant’s Lease; or (y) any tenant allowances required to be given to a Tenant from and after the Closing pursuant to its Lease or any extension or renewal thereof.

The provisions of this Section 6 shall survive the Closing; provided, however, that any re-prorations or re-apportionments shall be made as and when required under Section 6.1 above.

7.1.        Seller warrants, represents and covenants to and with Purchaser that the following are true and correct on the date hereof and on the actual Closing Date:

7.1.1.       Seller is the sole owner of title to each of the Units and has full right, power and authority to sell, convey and transfer the Property to Purchaser.

7.1.2.       Seller is a limited liability company duly formed and in good standing under the laws of the State of Delaware, qualified to do business in New York and has the requisite power and authority to enter into and to perform the terms of this Agreement. Seller is not subject to any law, order, decree, restriction or agreement which prohibits or would be violated by this Agreement or the consummation of the transactions contemplated hereby. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all requisite action of Seller. This Agreement constitutes, and each document and instrument contemplated hereby to be executed and delivered by Seller, when executed and delivered, shall constitute the legal, valid and binding obligation of Seller enforceable against Seller in accordance with its respective terms (subject to bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally).

7.1.3.       Seller is not a “foreign person” within the meaning of Section 1445 of the Internal Revenue Code 1986, as amended, or any regulations promulgated thereunder (collectively, the “ Code ”).

7.1.4.       None of the execution, delivery and performance of this Agreement nor the consummation of the transactions contemplated hereby is prohibited by, or requires Seller to obtain any consent, authorization, approval or registration under any law, statute, rule, regulation, judgment, order, writ, injunction or decree which is binding upon Seller.

7.1.5.       There are no judgments, orders or decrees of any kind against Seller unpaid or unsatisfied of record which would have any material adverse effect on the Property or the ability of Seller to consummate the transactions contemplated by this Agreement.

7.1.6.     The information concerning the Leases contained in the Rent Roll set forth on Exhibit B attached hereto is accurate as of the date set forth therein or, if no date is set forth therein, as of the date hereof. Except as otherwise set forth in this Agreement, or in the Rent Roll:

(a)       (i) the Leases are in full force and effect, (ii) intentionally omitted , (iii) Seller has not received written notice of any actual or threatened default from any Tenant with respect to its applicable Lease, (iv) Seller has not received written notice from any Tenant giving notice of such Tenant’s intention to vacate its premises upon expiration of its Lease or otherwise, (v) except as set forth on the Rent Roll, the Leases have not been modified, amended or extended, (vi) all work required to be performed by the landlord under the Leases has been completed and all contractors, subcontractors and other persons or entities furnishing labor, supplies and/or materials on behalf of Seller in furtherance of such work have been paid in full for the work performed at the Units on behalf of Seller as required pursuant to the Leases, and (vii) at Closing, no tenant allowances shall be due to any Tenant pursuant to its Lease for which Purchaser shall not have received a credit in accordance with this Agreement.

(b)       no renewal or extension option has been granted to the Tenants, except as set forth in the Leases;

(c)        intentionally omitted ;

(d)       the rents, including any Overage Rent, are being paid on a current basis and no Tenant has paid any rent more than one (1) month in advance;

(e)       there are no security deposits (whether cash or letters of credit) held by Seller;

(f)       at Closing, there shall not be any brokerage or leasing commission actually due with respect to the Leases;

(g)       Seller has provided Purchaser with true, correct and complete copies of all of the Leases (including any guaranties), together with any amendments, modifications and extensions thereto and there are no leases, licenses or other occupancy agreements with respect to the Units except as set forth in the Rent Roll;

(h)       all Tenants are in possession of the premises leased by them unless otherwise noted on the Rent Roll;

(i)        except as set forth in this Section 7.1.6(i) or as disclosed in the Rent Roll, no Tenant has delivered written notice to Seller claiming entitlement to “free” rent, rent concessions, tenant allowances, rebates, rent abatements, set-offs or offsets against rent or contesting the pro-rata shares of tax or maintenance increases shown in the Rent Roll or their obligations to pay any common area charges or cost-of-living increases as required by their Leases which is outstanding. There may exist a dispute between Seller and CVS (as hereinafter defined) as to the date that CVS took possession of Unit RTL1 pursuant to its Lease insofar as Seller believes the date to be February 13, 2019, while CVS’s construction crew (but not its main offices) have sent informal emails (but not formal, written notice under the Lease) contending that CVS did not take possession until an unspecified, later date (not later than March 15, 2019).

7.1.7.     There is no pending (or, to Seller’s knowledge, threatened in writing) action, suit or other proceeding against the Property or against Seller with respect to the Property as of the date of this Agreement that if adversely determined would have a material adverse effect on the Property or Seller’s ability to consummate the transactions contemplated hereby.

7.1.8.     There are no service, maintenance, supply or similar contracts with Seller (as owner of the Units) relating to the Units, and there shall not be any such contracts which will be binding upon Purchaser after the Closing. Notwithstanding the foregoing, Purchaser acknowledges that there may be service, maintenance or similar contracts in respect of the Condominium that may affect all units in the Condominium and/or the Building, including (but not solely applicable to) the Units.

7.1.9.     Seller has not received any written notice from the Condominium that Seller, as the sponsor of the Condominium, is in default under any obligation of Seller to the Condominium. Seller has not received written notice that any party is in default or its obligations under the Condominium Documents which has not been cured.

7.1.10.   Seller is not a person and/or entity with whom Purchaser is restricted from doing business under the Internal Emergency Economic Powers Act, 50 U.S.C. Section 1701 et seq.; the Trading With The Enemy Act, 50 U.S.C. App. Section 5; the U.S.A. Patriot Act of 2001; any executive orders promulgated thereunder, any implementing regulations promulgated thereunder by the U.S. Department of Treasury Office of Foreign Assets Control (“ OFAC ”) (including those persons and/or entities named on OFAC’s List of Specially Designated Nationals and Blocked Persons); or any other applicable law of the United States.

7.1.11.   Seller has not received written notice of any pending or threatened condemnation or eminent domain proceedings that would affect the Property (or any portion thereof).

7.1.12.    There shall be no employees employed by Seller or any Seller Related Party which will be binding on Purchaser following the Closing in connection with the Units. There are no union employees employed by Seller or a Seller Related Party at, or union contracts to which Seller or a Seller Related Party is a party or which is binding upon, the Units. Notwithstanding the foregoing, Purchaser acknowledges that there may be employees of the Condominium that service the Units and/or the Building.

7.1.13.   The common charges (excluding separately billed utility charges) are as set forth on Exhibit H . Seller has not received any written notice of any intended assessment or increase in common charges from the Condominium Board not reflected in Exhibit H .

7.1.14.   Seller has not granted any person or entity and there exists no option or right of first refusal by any party (including the board of the Condominium) to purchase all or any part of any Unit that remains outstanding.

7.1.15.   Seller has provided Purchaser with true, correct and complete copies of all of the Condominium Documents, together with any amendments, modifications and extensions thereto. To Seller’s knowledge, the Condominium Documents are in full force and effect.

7.1.16.   All Tangible Property attached or appurtenant to, or used in connection with, the Property (other than trade fixtures belonging to Tenants) shall be owned by Seller at Closing, free of any liens or encumbrances except for the Permitted Exceptions, and are included in this sale.

7.1.17.    Seller currently maintains insurance policies in compliance with and fulfilling Seller’s obligations under, the Leases and the Condominium Documents.

7.1.18.    Intentionally omitted .

7.1.19.   Except as set forth on Exhibit M , Seller has not retained anyone to file notices of protest against, or to commence actions to review, real property tax assessments against the Property, and has not received written notice that any such action has been taken by or on behalf of any Tenants under the Leases.

7.1.20.   Seller is not and is not acting on behalf of (i) an “employee benefit plan” within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ ERISA ”), (ii) a “plan” within the meaning of Section 4975 of the Code or (iii) an entity deemed to hold “plan assets” within the meaning of 29 C.F.R. §2510.3-101, as modified by Section 3(42) of ERISA, of any such employee benefit plan or plan.

Any and all uses of the phrase, “knowledge of Seller” or “to Seller’s actual knowledge” or other references to Seller’s knowledge in this Agreement, shall mean the actual, present, conscious knowledge of Jordan Brill (the “ Seller Knowledge Individual ”) as to a fact at the time given without any investigation or inquiry. The Seller Knowledge Individual is the individual who is most likely in the ordinary course of Seller’s business and with respect to the transactions contemplated hereby to have responsibility for, and therefore to have personal knowledge of, the matters set forth in this Section 7.1 . Without limiting the foregoing, Purchaser acknowledges that the Seller Knowledge Individual has not performed and is not obligated to perform any investigation or review of any files or other information in the possession or control of Seller or to make any inquiry of any persons, or to take any other actions in connection with the representations and warranties of Seller set forth in this Agreement. Neither the actual, present, conscious knowledge of any other individual or entity, nor the constructive knowledge of the Seller Knowledge Individual or of any other individual or entity, shall be imputed to the Seller Knowledge Individual. Purchaser acknowledges that the Seller Knowledge Individual is named solely for the purpose of defining and narrowing the scope of Seller’s knowledge and not for the purpose of imposing any liability on or creating any duties running from such Seller Knowledge Individual to Purchaser. Purchaser covenants that it will bring no action of any kind against the Seller Knowledge Individual, related to or arising out of this Agreement.

The accuracy on the date hereof of the representations and warranties of Section 7.1 shall be conditions to Closing. The representations and warranties of Seller set forth in Section 7.1 (each a “ Surviving Seller Representation ”; collectively, the “ Surviving Seller Representations ”) of this Agreement shall survive the Closing for a period of one-hundred five (105) days (the “ Survival Period ”), and shall be subject to the limitations and conditions of this Section 7.1 . Purchaser shall not be entitled to pursue a claim for a breached Surviving Seller Representation unless, within fifteen (15) Business Days following the expiration of the Survival Period, Purchaser shall have commenced a legal proceeding alleging that Seller is in breach of any such Surviving Seller Representation and that Purchaser has suffered damages as a result thereof. In the event that Purchaser fails to commence any action relating to a Surviving Seller Representation as and when required in the prior sentence, Purchaser shall be precluded from asserting such claim against Seller or pursuing Seller therefor. Purchaser acknowledges and agrees that in no event shall damages include consequential, special or punitive damages. Notwithstanding the foregoing, Purchaser shall not have any right to bring any actions against Seller for a breach of any representation or warranty of Seller, unless and until the aggregate amount of the damages arising out of such breach(es) exceeds the sum of $50,000.00 (the “ Threshold Amount ”). In addition, in no event shall the aggregate liability of Seller to Purchaser by reason of any breach of one or more of Seller’s representations or warranties and for all documents executed and delivered at Closing in accordance with this Agreement exceed, in the aggregate, the sum of One Million Five Hundred Thousand and 00/100 Dollars ($1,500,000.00) (the “ Maximum Liability Amount ”).

The representations and warranties of Seller set forth in this Section 7.1 are subject to the following limitations: (i) to the extent any Leases or other written information delivered to Purchaser or its counsel with respect to the Property at any time prior to the Closing contains provisions or information about the Property inconsistent with any of the representations and warranties contained in Section 7.1 , such representations and warranties shall be deemed modified to conform to such provisions and Purchaser shall be deemed to have knowledge thereof; and (ii) in the event that, on or prior to the Closing, Purchaser shall obtain actual knowledge of any information that is contradictory to, and would constitute the basis of a breach of, any representation or warranty, then, promptly thereafter Purchaser shall deliver to Seller notice of such information specifying the representation or warranty to which such information relates. Purchaser further acknowledges that such representation or warranty will not be deemed breached in the event Purchaser shall have, prior to Closing, obtained actual knowledge of any information that is contradictory to such representation or warranty and shall have failed to disclose to Seller as required hereby. In the event (x) Purchaser has actual knowledge prior to the Closing Date of the breach by Seller of any representation or warranty, or (y) Seller delivers a “bringdown” certificate as described in Section 8.1.16 of this Agreement and such certificate that includes updates to representations and warranties which indicate that any such representation or warranty is no longer true and correct in all material respects which is not due to a breach by Seller of its obligations pursuant to this Agreement, Purchaser’s sole and exclusive remedy shall be to (a) proceed to close the transaction, without abatement of the Purchase Price, and without further remedy against Seller except that Purchaser may seek actual damages against Seller subject to the Maximum Liability Amount, provided that any such action is commenced on or prior to the expiration of the Survival Period; or (b) terminate this Agreement by written notice to Seller and Escrow Agent, in which event Escrow Agent shall return to Purchaser the Downpayment together with any interest earned thereon and this Agreement shall thereupon be deemed cancelled and become void and of no further effect, and neither party hereto shall have any obligations of any nature to the other hereunder or by reason hereof, except for those provisions which are intended to survive such termination.

7.2         Purchaser warrants, represents and covenants to and with Seller that the following are true and correct on the date hereof and on the Closing Date:

7.2.1       Purchaser has the requisite power and authority to enter into and to perform the terms of this Agreement. Purchaser is not subject to any law, order, decree, restriction, or agreement which prohibits or would be violated by this Agreement or the consummation of the transactions contemplated hereby. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all requisite action of Purchaser. This Agreement constitutes, and each document and instrument contemplated hereby to be executed and delivered by Purchaser, when executed and delivered, shall constitute the legal, valid and binding obligation of Purchaser enforceable against Purchaser in accordance with its respective terms.

7.2.2      Neither the execution, delivery and performance of this Agreement nor the consummation of the transactions contemplated hereby is prohibited by, or requires Purchaser to obtain any consent, authorization, approval or registration under any law, statute, rule, regulation, judgment, order, writ, injunction or decree which is binding upon Purchaser.

7.2.3      There are no judgments, orders, or decrees of any kind against Purchaser unpaid or unsatisfied of record, nor any actions, suits or other legal or administrative proceedings pending or, to the best of Purchaser's actual knowledge, threatened against Purchaser, which would have any material adverse effect on the business or assets or the condition, financial or otherwise, of Purchaser or the ability of Purchaser to consummate the transactions contemplated by this Agreement.

7.2.4       Purchaser is not a person and/or entity with whom Seller is restricted from doing business under the Internal Emergency Economic Powers Act, 50 U.S.C. Section 1701 et seq.; the Trading With The Enemy Act, 50 U.S.C. App. Section 5; the U.S.A. Patriot Act of 2001; any executive orders promulgated thereunder, any implementing regulations promulgated thereunder by the U.S. Department of Treasury Office of Foreign Assets Control (“ OFAC ”) (including those persons and/or entities named on OFAC’s List of Specially Designated Nationals and Blocked Persons); or any other applicable law of the United States.

7.2.5       Purchaser acknowledges having received and read a copy of (i) the Offering Plan and all amendments thereto in connection with the condominium conversion (collectively, the “ Plan ”) and (ii) the Declaration, together with the bylaws and rules and regulations of the Condominium and the tax lot drawings with respect thereto recorded in the New York City Register's Office (the foregoing Plan, Declaration, bylaws, rules and regulations and tax lot drawings are sometimes collectively referred to herein as the “ Condominium Documents ”) prior to Purchaser signing this Agreement. A listing of all Condominium Documents is set forth in the annexed Exhibit I and made a part hereof. Upon recordation of by the applicable governmental and/or quasi-governmental bodies (if at all), of (i) the 13 ^th Amendment, (ii) the 14 ^th Amendment and/or (iii) the Dec/By-Law Amendment (as hereinafter defined), each such recorded document, if and when recorded, shall be added to the list of Condominium Documents set forth on Exhibit I , nunc pro tunc. Purchaser hereby agrees to be bound by the terms and conditions of the Condominium Documents. The provisions of this Section 7.2.5 shall survive the Closing.

7.2.6      Purchaser is represented by counsel in connection with the transaction contemplated by this Agreement, is a sophisticated party with financial wherewithal to bear any risks which may be associated with the transaction contemplated by this Agreement, and has sufficient knowledge and experience in real estate and the law with respect to transactions involving the purchase and sale of condominium interests. Purchaser acknowledges that the sale of the Property to Purchaser is not a sale to the public pursuant to an offering plan. The provisions of this Section 7.2.6 shall survive the Closing.

7.2.7       The accuracy of the representations and warranties of Section 7.2 on the date hereof shall be conditions to Closing, and such representations and warranties shall survive the Closing for the Survival Period.

7.3         Purchaser agrees and acknowledges that, except as specifically set forth in this Agreement, the documents described in Section 8 of this Agreement and the Condominium Documents (including the New Condominium Documents), neither Broker (as hereinafter defined) or Seller, or any of its respective direct or indirect members, partners, shareholders, officers, directors, employees or agents (collectively, the “ Seller Related Parties ”), nor any agent nor any representative nor any purported agent or representative of Seller or any of the Seller Related Parties or Broker have made, and neither Seller nor any of the Seller Related Parties nor Broker are liable for or bound in any manner by, any express or implied warranties, guaranties, promises, statements, inducements, representations or information pertaining to the Property or any part thereof. Without limiting the generality of the foregoing, Purchaser has not relied on any representations or warranties, and Seller, the Seller Related Parties and Broker have not made any representations or warranties other than as expressly set forth herein, in the documents described in Section 8 of this Agreement and in the Condominium Documents (including the New Condominium Documents), in either case express or implied, as to (a) the current or future real estate tax liabilities, assessments or valuations of the Property, (b) the potential qualification of the Property, the Units, the Building or the Land for any and all benefits conferred by Federal, state or municipal laws, whether for subsidies, special real estate tax treatment, insurance, mortgages, or any other benefits, whether similar or dissimilar to those enumerated, (c) the compliance of the Building, Units, Property or Land, in its current or any future state, with applicable zoning ordinances and the ability to obtain a change in the zoning or a variance with respect to the Building’s, the Property’s, or the Units’ non-compliance, if any, with said zoning ordinances, (d) the availability of any financing for the alteration, rehabilitation or operation of the Property from any source, including, but not limited to, any state, city or Federal government or any institutional lender, (e) the current or future use of the Property, or the Units, including but not limited to the Property’s or the Units’ use for commercial purposes, (f) the present and future condition and operating state of any and all machinery or equipment on the Property, the Units and the Building and the present or future structural and physical condition of any building or its suitability for rehabilitation or renovation, (g) the ownership or state of title of any personal property in the Units or the Real Property, (h) the presence or absence of any Laws and Regulations or any Violations, (i) the validity, legality or enforceability of any of the Condominium Documents (including the New Condominium Documents), or the compliance with the Condominium or the Condominium Board with all applicable Laws and Regulations; and (j) the layout, rent, income, expenses, operation, agreements, licenses, easements, instruments or documents of or in any way affecting the Property, the Units, the Building or the Land. Further, Purchaser acknowledges and agrees that, except as set forth in this Agreement, in the documents described in Section 8 of this Agreement and in the Condominium Documents (including the New Condominium Documents), neither Seller nor any of the Seller Related Parties nor Broker are liable for or bound by (and Purchaser has not relied upon) any verbal or written statements, representations or any other information respecting the Property furnished by Seller, any of the Seller Related Parties or Broker or any broker, employee, agent, consultant or other person representing or purportedly representing Seller, any of the Seller Related Parties or Broker. The provisions of this Section 7.3 shall survive the Closing.

8.1         At or prior to the Closing, Seller shall make, have made or caused to be made, the following deliveries to the Escrow Agent:

8.1.1      Seller shall execute, acknowledge and deliver to Purchaser a deed in the form attached hereto as Exhibit D (the “ Deed ”), complying with RPL §339-0 and containing the covenant required by LL §13(5), conveying to Purchaser title to the Units, together with their undivided interest in the Common Interests of each Unit, as such interests exist as of the Closing Date. The Deed shall be executed and acknowledged by Seller and by Purchaser, in proper statutory form for recording.

8.1.2      Seller shall execute, acknowledge and deliver to Purchaser an assignment of all of Seller's right, title and interest as landlord or otherwise under the Leases in respect of the Property, and of any security deposit, if any, actually held by Seller on the date of the Closing, in the form attached hereto as Exhibit E and made a part hereof (the “ Assignment of Leases ”) and shall deliver to Purchaser an executed original or copy of each Lease described on the Rent Roll.

8.1.3      Seller shall execute and deliver to Purchaser a notice to the Tenants (and, if applicable, any guarantors) under the Leases advising them of the sale of the Property, and the assignment to Purchaser of the Leases, in the form attached hereto as Exhibit F and made a part hereof.

8.1.4      Seller shall execute, acknowledge and deliver to Purchaser a bill of sale, conveying and transferring to Purchaser all right, title and interest of Seller, if any, in and to all fixtures, machinery, equipment, articles of personal property and improvements in the nature of personal property attached or appurtenant to, or located on, or used in connection with the use or operation of, or used or adapted for use in connection with the enjoyment or occupancy of the Property, including, without limitation, all assignable (without third party consent(s)) licenses, permits, warranties and guarantees and plans and specifications held by Seller in connection with the Property, specifically excluding, however, any personal property of Tenants in the form attached hereto as Exhibit G and made a part hereof.

8.1.5      Seller shall deliver to Purchaser all keys to any portion of the Units, to the extent in Seller's possession or control together with all books, records, plans and specifications pertaining solely to the Units.

8.1.6      Seller shall deliver to Purchaser a certificate, duly executed and acknowledged by Seller, in accordance with Section 1445 of the Code.

8.1.7      Seller shall deliver to the Title Company evidence reasonably satisfactory to the Title Company of Seller’s authority to consummate the transactions contemplated herein and the execution and delivery of the documents required to be executed and delivered hereunder.

8.1.8      Seller shall execute, acknowledge and deliver a Combined Real Estate Transfer Tax Return and Credit Line Mortgage Certificate, Form TP-584 in respect of the Property (the “ State Transfer Tax Return ”).

8.1.9           Seller shall execute, acknowledge and deliver a New York City Department of Finance Real Property Transfer Tax Return in respect of the Property (the “ City Transfer Tax Return ”).

8.1.10         Seller shall execute, acknowledge and deliver Form RP-5127 in respect of the Property (the “ Equalization Form ”).

8.1.11         Seller shall execute and deliver an Affidavit in Lieu of Registration as required by Chapter 664 of the Laws of 1978.

8.1.12         A letter issued by the Condominium or its managing agent certifying: (a) that the common charges and any assessments then due and payable to the Condominium with respect to the Units have been paid to the date of the Closing, (b) as to any reserves being held by the Condominium and the balances therein, (c) consenting to the sale of the Units to Purchaser and (d) that the Condominium has not received any written notice alleging any defaults of Seller under the Condominium Documents with respect to the Units which have not been cured .

8.1.13         A written assignment of all of Seller’s right title and interest in and to any guaranties or warranties in connection with any work or services performed or equipment or improvements installed on or at the Units (solely with respect to such guaranties or warranties that affect or relate to the Units) that are assignable (including, without limitation, all manufacturer’s warranties and all other rights relating to any architects, engineers, contractors, subcontractors, consultants, professionals or other individuals or entities who performed, consulted or collaborated in any way in conjunction with the construction of the Property), in such form that is reasonably acceptable to Seller (the “ Assignment of Warranties ”).

8.1.14         In the event that the Tenant for Unit RTL1 (“ CVS ”) has not received required signoffs from all governmental agencies with respect to the alterations performed by CVS at Unit RTL1 in accordance with its Lease (the “ CVS Signoffs ”) prior to the Closing Date, Seller shall deliver an undertaking to Purchaser on terms reasonably acceptable to Purchaser and Seller providing that Seller (as sponsor of the Condominium) shall provide prompt and reasonable assistance to Purchaser (at Purchaser’s sole cost and expense, solely with respect to (i) any costs and expenses relating to Unit RTL1 or (ii) administrative costs, fees and expenses required to obtain the CVS Signoffs) to facilitate Purchaser and CVS in obtaining the CVS Signoffs (the “ CVS Undertaking Agreement ”).

8.1.15         Any documents required to be delivered in accordance with Section 27.3 of this Agreement.

8.1.16         Seller shall execute and deliver a “bringdown” certificate certifying that the representations and warranties set forth in this Agreement are true and correct in all material respects as of the date of Closing, which certificate may include updates to representations to reflect changes in facts that are not prohibited by this Agreement (provided that any such changed facts and circumstances are not in breach or violation of this Agreement) and which certificate shall be subject to the limitations and qualifications contained in this Agreement, including but not limited to Section 7.1 .

8.1.17         A certification to the Title Company in the form of Exhibit K annexed hereto.

8.1.18         To the extent not posted at the Property, Seller shall deliver originals or, if originals are unavailable, copies, of all permits, licenses, approvals, warranties and guaranties relating to solely and exclusively to the ownership, use or operation of the Units, to the extent same are in Seller’s possession.

8.1.19         A written resignation from the member of the Condominium Board which is associated with the owners of the Units, resigning from its respective seat on the Condominium Board and/or as officer of the Condominium.

8.1.20         To the extent required in accordance with Section 2.7 of this Agreement, Seller shall execute and deliver to Purchaser the Seller Violation Undertaking Agreement.

8.1.21         To the extent required in accordance with Section 8.7 of this Agreement, Seller shall execute and deliver to Purchaser the NRSU Undertaking Agreement.

8.1.22         To the extent required in accordance with Section 9.6 of this Agreement, Seller shall execute and deliver to Purchaser the Seller NRSU Lease.

8.2          At or prior to the Closing, Purchaser or its agents shall make, have made or caused to be made to Escrow Agent, the following deliveries:

8.2.1           Purchaser shall pay to Seller the balance of the Purchase Price required pursuant to Section 3.2.2 hereof, subject to any adjustments pursuant to Section 6 of this Agreement.

8.2.2           Purchaser shall provide to the Title Company evidence reasonably satisfactory to the Title Company of Purchaser’s authority to consummate the transactions contemplated herein and the execution and delivery of the documents required to be executed and delivered hereunder.

8.2.3           Purchaser shall execute, acknowledge and deliver to Seller a counterpart of the Assignment of Leases.

8.2.4           Purchaser shall execute, acknowledge and deliver to Seller a counterpart of the Deed.

8.2.5           Purchaser shall acknowledge receipt of copies of the Leases and lease files delivered by Seller (provided Seller has delivered same to Purchaser on or before the Closing Date).

8.2.6           Purchaser shall execute, acknowledge and deliver to Seller a counterpart of the State Transfer Tax Return.

8.2.7           Purchaser shall execute, acknowledge and deliver to Seller counterpart of the City Transfer Tax Return.

8.2.8           Purchaser shall execute, acknowledge and deliver to Seller a counterpart of the Equalization Form.

8.2.9           Purchaser shall execute, acknowledge and deliver to Seller for recording the Power of Attorney in favor of the condominium board and declarant in the form required by the Offering Plan.

8.2.10         Purchaser shall execute and deliver a “bringdown” certificate certifying that the representations and warranties set forth in this Agreement are true and correct in all material respects as of the date of Closing, which certificate may include updates to representations to reflect changes in facts that are not prohibited by this Agreement and which certificate shall be subject to limitations and qualifications contained in this Agreement.

8.2.11         To the extent required, Purchaser shall execute, acknowledge and deliver to Seller a counterpart of the CVS Undertaking Agreement.

8.2.12         Purchaser shall execute, acknowledge and deliver to Seller a counterpart of the Assignment of Warranties.

8.2.13         To the extent required in accordance with Section 2.7 of this Agreement, Purchaser shall execute and deliver to Seller a counterpart of the Seller Violation Undertaking Agreement.

8.2.14         To the extent required in accordance with Section 8.7 of this Agreement, Purchaser shall execute and deliver to Seller a counterpart of the NRSU Undertaking Agreement.

8.2.15         To the extent required in accordance with Section 9.6 of this Agreement, Purchaser shall execute and deliver to Seller a counterpart of the Seller NRSU Lease.

8.3          Seller shall obtain and deliver to Purchaser not less than three (3) Business Days prior to the Closing Date a written estoppel certificate (each a “ Tenant Estoppel ”) from each Tenant at the Property substantially in the form annexed hereto as Exhibit J and made a part hereof, indicating no deviation from the information provided herein, other than de minimis , it being agreed that (i) the (other than in connection with a statement regarding such Tenant’s default under its Lease) inclusions of qualifications such as "to our knowledge", or references to a general conditional statement such as or similar to, "we reserve all rights", and/or (ii) any modification or qualification of any kind, or deletion in its entirety of any of those provisions of a Tenant Estoppel which are in italicized font on Exhibit J, shall not cause the Tenant Estoppel to be non-compliant.

8.3.1           In the event that a Tenant Estoppel alleges a default by Seller which can be cured by the payment of money only, at or prior to Closing Seller, at its election, may pay same or deliver such amount into escrow with Escrow Agent until such alleged default is resolved, and in either event, Seller shall be deemed to have timely delivered the applicable Tenant Estoppel.

8.3.2           In the event that a Tenant Estoppel contains qualifications such as "to our knowledge", or references to a general conditional statement such as or similar to, "we reserve all rights" with respect to such Tenant’s statement of whether it is in default of its Lease, such Tenant Estoppel shall be compliant with this Section 8.3 so long as Seller cures such noncompliance by including a representation in the certificate to be delivered by Seller at Closing pursuant to Section 8.1.16 above which states that the applicable Tenant “is not in default under the terms of its Lease”, which additional representation shall be subject to the limitations and qualifications contained in this Agreement, including but not limited to Section 7.1 . In the event that Seller delivers a certificate at Closing in accordance with the previous sentence, Seller shall be deemed to have timely delivered the applicable Tenant Estoppel.

8.3.3           The failure or inability by Seller to obtain the Tenant Estoppels shall constitute a failure of condition but not a default by Seller, so long as Seller used commercially reasonable efforts to obtain same; provided that Seller shall be entitled to adjourn the Closing Date in order to permit Seller additional time to obtain a Tenant Estoppel. In the event Seller advises Purchaser in writing that Seller is unable to obtain a Tenant Estoppel in accordance with this Section 8.3, Purchaser shall be entitled, as its sole and exclusive remedy, to those rights and remedies set forth in Section 10.2 hereof; provided that if Purchaser elects to terminate this Agreement as a result of (x) the failure of the closing condition set forth in this Section 8.3.3 , or (y) a default by Seller of its obligations set forth in this Section 8.3 , then, in either such termination event, in addition to a return to Purchaser of the Downpayment (together with accrued interest thereon), Seller shall also be required to reimburse Purchaser for its reasonable costs and expenses (including attorneys’ fees) actually incurred with respect to the transaction which underlies this Agreement in an amount not to exceed TWO HUNDRED FIFTY THOUSAND AND 00/100 DOLLARS ($250,000.00) in the aggregate.

8.3.4           Without limiting the generality of the foregoing, Seller shall have no obligation to bring any legal action against a Tenant to compel such Tenant to issue the Tenant Estoppel or otherwise extend the Closing Date to obtain the Tenant Estoppel.

8.4          Unless a Lease is subordinate on its terms, Seller agrees to deliver draft subordination, non-disturbance and attornment agreements (each an “ SNDA ”) for the Tenants (which shall in the form required by the applicable Lease, or if no form of SNDA is required, then in a form prepared by Purchaser or its lender), and Seller agrees to use commercially reasonable efforts to cause each requested Tenant to provide an SNDA. The failure by Seller to obtain the requested SNDAs shall constitute a failure of condition but not a default by Seller, so long as Seller used commercially reasonable efforts to obtain same; provided that Seller shall be entitled to adjourn the Closing Date in order to permit Seller additional time to obtain an SNDA. Without limiting the generality of the foregoing, Seller shall have no obligation to bring any legal action against a Tenant to compel such Tenant to issue the SNDA or otherwise extend the Closing Date to obtain the SNDA.

8.5          Seller agrees to use commercially reasonable efforts to obtain and deliver to Purchaser a written estoppel certificate from any party to an instrument recorded against the Property which is (i) executed from and after April 6, 2015, and (ii) set forth on the Title Report (each a “ Title Estoppel ”) in form reasonably acceptable to Purchaser and Seller; provided that Seller’s failure to obtain any Title Estoppel shall in no event be deemed to be a failure of a condition precedent to Purchaser’s obligations under this Agreement and shall in no way impair Purchaser’s obligations under this Agreement or entitle Purchaser to delay the Closing, or receive a credit against, or reduction of, the Purchase Price.

8.6          Seller and Purchaser, at the Closing, shall prepare, execute and deliver to each other, subject to all the terms and provisions of this Agreement, (a) a closing statement setting forth, inter alia , the closing adjustments and material monetary terms of the transaction contemplated hereby and (b) such other instruments and documents as may be reasonably required to effectuate the consummation of the transactions described in this Agreement.

8.7          In the event that (i) prior to the Closing (a) the 14 ^th Amendment shall not have been recorded, (b) the NRSU shall not have been subdivided from Unit RTL2 and (c) a new tax lot shall not have been created and issued for the NRSU by the applicable governmental authorities (collectively the “ NRSU Subdivision ”), and (ii) the parties are not executing the Seller NRSU Lease at Closing in accordance with Section 9.6 of this Agreement, at Closing Purchaser and Seller shall execute the NRSU Undertaking Agreement (as hereinafter defined). For the avoidance of doubt, in the event that the parties execute the Seller NRSU Lease at Closing, the parties shall neither execute and deliver the NRSU Undertaking Agreement at Closing, nor have any further obligation pursuant to the provisions of Section 8.7 of this Agreement. The parties acknowledge that the NRSU Subdivision is being done at the request of Seller and only as a convenience to Seller.

8.7.1           In the event that the NRSU Subdivision has not occurred prior to the Closing Date (and the parties are not executing the Seller NRSU Lease at Closing), Seller shall use commercially reasonable efforts to cause the NRSU Subdivision to occur not later than such date which is one (1) year following the Closing Date; provided that if the NRSU Subdivision has not occurred within one (1) year despite Seller’s commercially reasonable efforts in furtherance thereof, then Seller shall be permitted an additional period not to exceed four (4) months to complete the NRSU Subdivision. Upon request, Seller shall keep Purchaser apprised of the progress of the NRSU Subdivision.

8.7.2           In the event that (i) Seller shall fail to cause the NRSU Subdivision to occur as and when required pursuant to the provisions of Section 8.7.1 , or (ii) (a) at any time after such date which is six (6) months following the Closing Date Purchaser executes and delivers a deed to transfer Unit RTL2 to an unaffiliated, bona-fide third-party purchaser for value (a “ Sale ”), or (b) Purchaser’s lender commences an action to foreclose upon Purchaser’s mortgage which encumbers the Units or accepts a deed in lieu of foreclosure with respect to any or all of the Units (a “ Loan Enforcement Action ”), Seller shall have no further right to receive a reconveyance of the NRSU in accordance with this Section 8.7 , and Seller will be deemed to have irrevocably and permanently waived its right to the NRSU.

8.7.3           For purposes of this Agreement, the “ NRSU Undertaking Agreement ” shall be a document to be executed at Closing by Purchaser and Seller (to the extent required pursuant to the provisions of Sections 8.7 and 9.6 ) which shall provide, inter alia , that:

(i) promptly following the NRSU Subdivision, Purchaser shall execute, acknowledge and deliver a bargain and sale deed without covenants against grantor’s acts for no-consideration, together with all required conveyance tax documents relating thereto, so as to convey the NRSU to Seller as of the date of the NRSU Subdivision in its “as-is, where-is” condition as of the Closing Date. Except as expressly provided in the NRSU Undertaking Agreement, Purchaser will not provide any representations and/or warranties as it relates to the NRSU, and Purchaser shall be released from all liability (other than liability that arises from Purchaser’s willful misconduct or failure to act in violation of the terms of this Section 8.7) as it relates to the NRSU, the NRSU Undertaking Agreement and the NRSU Subdivision.

(ii) all costs and expenses to be paid by Purchaser (other than Purchaser’s attorney’s fees) including but not limited to transfer taxes, if any, or costs and expenses to record the deed due and payable by virtue of the conveyance of the NRSU from Purchaser to Seller shall be paid by Seller. Further, concurrent with the delivery of the executed deed which reconveys the NRSU, Seller shall reimburse Purchaser for that portion of real estate taxes paid by Purchaser for Unit RTL2 attributable to the NRSU from and after the date of the reconveyance of the NRSU to Seller;

(iii) between the Closing Date and the NRSU Reconveyance Date (as hereinafter defined), Purchaser shall not cause any voluntary liens, cause any encumbrances or cause any third-party claims to encumber the NRSU unless such liens, encumbrances and claims are removed and satisfied by Purchaser (at Purchaser’s sole cost and expense) on or prior to the NRSU Reconveyance Date;

(iv) In the event that, following five (5) Business Days’ written notice from Seller (which notice may be delivered at any time following the NRSU Subdivision and release of the lien of Purchaser’s lender against the NRSU), Purchaser shall fail or refuse to deliver to Seller (a) those documents set forth in Section 8.7.3(i) , or (b) such other reasonable documents requested by Seller, the Title Company or Purchaser’s lender in furtherance of the reconveyance of the NRSU to Seller in accordance with the provisions of this Section 8.7 (which documents shall not impose any additional cost or obligation upon Purchaser and which shall be customary in a transaction of this nature), Seller shall have a limited power of attorney to execute any and all of such documents in (a) and (b) of this Section 8.7.3(iv) on Purchaser’s behalf so as to effectuate the reconveyance of the NRSU to Seller in accordance with the provisions of this Section 8.7 . This limited power of attorney shall be revoked immediately upon such NRSU reconveyance.

(v) Purchaser shall upon the request of Seller or the Condominium, reasonably cooperate (including delivering any documents and executing any instruments and affidavits prepared by Seller at Seller’s sole cost and expense) to the extent necessary in furtherance of the recordation of the 13 ^th Amendment, 14 ^th Amendment and Dec/By-Law Amendment and/or obtaining the NRSU Subdivision;

(vi) Seller shall be permitted to access the proposed NRSU (subject to the Condominium Documents and the Leases) and to provide such access to its engineers, contractors, expeditors, agents, representatives and employees; provided that any such access (w) must be on prior notice to Purchaser and during reasonable business hours and at a time and in a manner as to not interfere with any Tenant’s use of its demised premises, (x) shall be subject to (1) the rights of the Tenant of Unit RTL2 pursuant to its Lease and (2) the rights, limitations and obligations of the Condominium Documents, (y) Purchaser and its representatives shall be permitted to accompany Seller and its vendors when at the NRSU, and (z) Seller shall indemnify and hold Purchaser harmless for any damage caused to Unit RTL2 by reason of any inspections of the NRSU in accordance with the NRSU Undertaking Agreement ;

(vii) prior to the NRSU Reconveyance Date, Purchaser shall not be permitted to modify any existing loan documents encumbering Unit RTL2 (or any portion thereof), or to enter into any new loan documents to encumber Unit RTL2 (or any portion thereof) unless such modifications and/or new loan documents provide for the release of the NRSU from the mortgage promptly upon the NRSU Subdivision and Seller’s delivery of all NRSU documentation reasonably required by Purchaser’s lender (even if Purchaser is then in default under such loan); and

(viii) Seller shall (a) pay those reasonable fees and expenses of Purchaser’s lender (including 3 ^rd -party attorneys’ fees and expenses actually incurred), and (b) provide such cooperation (including providing documentation relating to the NRSU Subdivision) reasonably required by Purchaser’s lender to cause any mortgage to be released against the NRSU in accordance with the NRSU Undertaking Agreement (provided that such release occurs promptly following the NRSU Subdivision) in an aggregate amount not to exceed TWENTY THOUSAND AND 00/100 DOLLARS ($20,000.00).

8.7.4           The provisions of Sections 8.7.1 and 8.7.2 of this Agreement shall survive the Closing.

9.1          Seller agrees that during the period between the date hereof and the Closing (and where applicable, Seller agrees to cause the board of the Condominium to act accordingly):

9.1.1           Seller will manage the Units or will cause the Units to be managed (which management shall include performing the obligations of landlord under the Leases and of the owner of the Units under the Condominium Documents) under policies substantially similar to those existing prior to the date hereof, provided that Seller shall have no obligation to make any capital improvements or replacements to the Units or any portion thereof except to the extent required pursuant to the terms of any Lease (including without limitation completion of any work that is the obligation of the landlord under any of the Leases), the Condominium Documents and/or any Laws and Regulations.

9.1.2           Seller shall not enter into any new lease or any modification, extension, cancellation or renewal of an existing Lease with respect to any Unit (each a “ Lease Modification ”), without first giving Purchaser written notice (“ Seller’s Leasing Notice ”) together with (a) either a copy of the proposed Lease Modification or a summary of the proposed terms thereof, and (b) a statement of the amount for Leasing Costs (as hereinafter defined), if any, in connection therewith and the terms of payment thereof. Purchaser shall respond to Seller by written notice within five (5) Business Days following Purchaser’s receipt of Seller’s Leasing Notice. In the event Purchaser does not consent (or is deemed not to consent) to such Lease Modification, which consent may be withheld in Purchaser’s sole and absolute discretion, then Seller shall not enter into same.

9.1.2.1           If Purchaser consents to any Lease Modification (it being understood that if Purchaser fails to respond to Seller’s Leasing Notice within the time period specified above, such failure shall be deemed to constitute Purchaser’s election to withhold its consent), Seller shall have the right to enter into the Lease Modification and Purchaser shall pay to Seller at Closing, as an adjustment to the Purchase Price, the Leasing Costs prorated in each case over the term of the Lease Modification and apportioned. Such payment shall be made by Purchaser to Seller at the Closing. As used herein, “ Leasing Costs ” shall mean the brokerage commission specified in Sellers’ notice and the cost of decoration or other work to be performed by the Landlord under the terms of the Lease Modification to suit the premises to the tenant’s occupancy (but in no event shall Leasing Costs include any loss of income due to any free or reduced rental periods, or the payment or reimbursement of any landlord or tenant legal costs and expenses associated with a Lease Modification or any applicable commission agreement with respect thereto).

9.1.2.2           Notwithstanding the foregoing, at or prior to Closing, Seller shall pay all leasing or brokerage commissions then due and owing for any Lease set forth on Exhibit B . For the avoidance of doubt, Seller shall not be required to pay, nor shall Purchaser be entitled to receive any credit for, brokerage or leasing commissions which may be earned due to any option which may be exercised by a Tenant under its Lease which has not yet been so exercised at Closing.

9.1.3            Intentionally omitted .

9.1.4           Seller will not grant or file, nor consent to the filing of any lien or cause any instrument to be recorded (or consent to the recording to any instrument) that would further encumber the Units in any manner, unless same is discharged at or prior to Closing.

9.1.5           Seller will not enter into new service, maintenance, supply or similar contracts with Seller (as owner of the Units) relating to the Units which are not terminable on 30 days’ prior notice provided that at Closing, if Purchaser elects to terminate such contract Seller shall bear the costs and expenses associated with the termination thereof.

9.1.6           Seller shall keep the Property insured in accordance with Seller’s existing insurance program or comparable insurance program and in compliance with the terms of the Leases and the Condominium Documents.

9.1.7           Seller shall not amend or modify (or permit to be amended or modified) the Condominium Documents in such a way as to create or increase a material restriction, liability or obligation or limit the rights (including voting or control rights) of the owner of the Units, or otherwise in violation of the terms of the Leases without Purchaser’s prior consent, which may be withheld or granted in Purchaser’s sole discretion. For the avoidance of doubt, Seller’s efforts to cause the (i) 13 ^th Amendment to be recorded and be of full force and effect in substantially the form annexed hereto as Exhibit L-1 ; (ii) 14 ^th Amendment to be recorded and be of full force and effect in substantially the form annexed hereto as Exhibit L-2 (and as may be modified in accordance with Section 1.2.2 of this Agreement), and (iii) the Dec/By-Law Amendment to be drafted to incorporate those points enumerated in the annexed Exhibit N and to be properly recorded shall each be expressly permitted pursuant to this Section 9.1.7 and shall not require further notice to, or consent of, Purchaser.

9.1.8            Intentionally omitted .

9.1.9           Seller shall promptly deliver to Purchaser copies of all written notices received by Seller of any default or any written claim(s) or dispute(s) with respect to the Leases, the Condominium Documents (including the New Condominium Documents) or the Property, including without limitation, any notices of a New Seller-Obligated Violation, or condemnation applicable to the Real Property or the Units.

9.1.10         Seller agrees to make available for Purchaser’s examination upon prior notice to Seller, during normal business hours and at Seller’s sole cost and expense, from time to time upon Purchaser’s written request therefor, all records, statements and accounts reasonably required by Purchaser bearing on or relating to (a) rents and revenues of the Units and the collection thereof, and (b) the operation of the Property and expenditures made in connection therewith.

9.1.11         In the event that the Condominium determines to resume common charges in accordance with the 11 ^th Amendment and delivers notice to such effect to the Unit Owners (as such term is defined in the Offering Plan) (a “ CC Resumption Notice ”), Seller shall promptly deliver a copy of the CC Resumption Notice to Purchaser. Seller shall not cause the Condominium to increase (and shall not cause the Condominium to increase) the Common Charges payable by the owners of the Units in conjunction with the resumption of common charges or in connection with the CC Resumption Notice (as set forth on the annexed Exhibit H ), and in no event shall any common charges waived during the Waiver Period by the owners of the Units be reinstated or otherwise payable.

9.1.12         Seller agrees to provide, to the extent reasonably necessary, such documentation and cooperation that Purchaser’s lender may reasonably require in furtherance of its efforts to close any acquisition financing relating to the Property, including but not limited to any documentation related to the NRSU Subdivision; provided that nothing contained in this Section 9.1.12 shall be deemed to create a financing contingency of any kind.

9.2          Between the date hereof and the Closing Date, Purchaser and Purchaser’s lenders, associates, partners, appraisers, agents and consultants shall be afforded access to the Property as reasonably required by Purchaser in connection with its preparation for the Closing. Purchaser agrees that in entering upon and inspecting or examining the Property, it will not communicate with any Tenants in connection with its Lease or the Property or any matter related to either such item, or employees of the Condominium without the prior consent of Seller, not to be unreasonably withheld, conditioned or delayed. Any access to the Property required by Purchaser in connection with the inspection of the Property contemplated hereunder (i) must be upon not less than 48 hours’ prior notice to Seller and during reasonable business hours, (ii) shall be subject to (a) the rights of Tenants pursuant to their Leases and (b) the rights, limitations and obligations of the Condominium Documents, (iii) requires that at all times Purchaser and its representatives shall be accompanied by a representative of Seller when at the Property, and (iv) shall require Purchaser to carry, or to require its authorized agents who access the Property to carry, (x) a policy of commercial general liability insurance with a minimum limit of Two Million Dollars ($2,000,000.00) for each occurrence and Five Million Dollars ($5,000,000.00) in the aggregate for bodily injury and property damage; and (y) a workman’s compensation or employer’s liability insurance policy in accordance with the laws of the State of New York, which insurance shall name Seller, its agent, its mortgagee and the Condominium by endorsement as an additional insured under Purchaser’s general liability coverage. Purchaser agrees that its inspection activities shall not unreasonably interfere with the maintenance and operation of the Property, and Purchaser shall repair any and all damage caused to the Property directly caused by such inspection (but not for any damage associated with any pre-existing condition at the Property, unless such condition was exacerbated by Purchaser’s intentional or negligent actions or omissions). Nothing contained in this Section 9.2 shall permit Purchaser or its employees, consultants, engineers and agents to conduct any soil test or sampling, boring, digging or any other physical intrusion of the Property and/or the Improvements without the prior written consent of Seller, to be given or withheld in Seller’s reasonable discretion.

9.3          Purchaser’s obligation to purchase the Property is expressly conditioned upon the following:

9.3.1           Seller’s timely performance in all material respects of the obligations, covenants and deliveries required of Seller under this Agreement.

9.3.2           Seller’s delivery on the Closing Date of the documents described in Section 8 of this Agreement, which are to be delivered by Seller pursuant to said Section.

9.3.3           The representations and warranties of Seller set forth in Section 7.1 of this Agreement being true and correct in all material respects as of the Closing Date as if then made (other than those representations or warranties made as of a specific date, or with reference to previously dated materials, which representations and warranties shall be true and correct as of the date thereof or as of the date of such materials, as applicable). For purposes hereof, a representation or warranty shall not be deemed to have been breached if the representation or warranty is true and correct on the date hereof, but subsequently is not true and correct in all material respects as of the Closing Date by reason of changed facts or circumstances arising after the date hereof which pursuant to this Agreement are not prohibited to have occurred and did not arise by reason of a breach of any covenant made by Seller under this Agreement.

9.3.4           Purchaser’s receipt of the Tenant Estoppels in accordance with Section 8.3 above.

9.4          Seller’s obligation to sell the Property is expressly conditioned upon the following:

9.4.1           Purchaser’s delivery of the balance of the Purchase Price to the Escrow Agent on the Closing Date (subject to any adjustments and credits as set forth in Section 6 of this Agreement).

9.4.2           Purchaser’s delivery on the Closing Date of the documents described in Section 8 of this Agreement, which are to be delivered by Purchaser pursuant to said Section.

9.4.3           The representations and warranties of Purchaser set forth in this Agreement being true and correct in all material respects as of the Closing Date as if then made.

9.4.4           In the event that the NRSU Subdivision has not been completed prior to the actual Closing Date, any loan documents that Purchaser shall execute at or prior to the Closing which shall encumber any or all of the Units shall include a provision or other language whereby Purchaser’s lender shall promptly release the NRSU from the lien of the mortgage encumbering the applicable Unit upon the occurrence of certain events and/or the satisfaction of certain conditions by Purchaser and/or Seller (collectively, the “ Lien Release Clauses ”), which Lien Release Clauses shall be reasonably acceptable to Seller, in Seller’s good faith determination; provided that if Seller, in its good faith determination, deems the Lien Release Clauses to not be reasonably acceptable to Seller, then Purchaser and Seller, acting reasonably, will cooperate in good faith to conform the Lien Release Clauses so that they may be reasonably acceptable to Seller in Seller’s good faith determination.

9.5          If any of the conditions set forth in Sections 9.3 or 9.4 are not fulfilled or waived, the party benefited by such conditions may, by written notice to the other party, terminate this Agreement, whereupon all rights and obligations hereunder of each party shall terminate except those that expressly survive any termination. Either party may, at its election, at any time or times on or before the date specified for the satisfaction of the condition, waive in writing the benefit of any of the conditions benefitting such party set forth in Sections 9.3 or 9.4 above. If this Agreement is terminated pursuant to this Section 9.5 as a result of any condition set forth in Sections 9.3 or 9.4 , Escrow Agent shall promptly refund the Downpayment (together with all interest earned thereon) to Purchaser.

9.6          Between the date hereof and May 6, 2019, Purchaser and Seller shall use commercially reasonable efforts to negotiate and draft a form of lease or license agreement reasonably acceptable to Purchaser and Seller (the “ Seller NRSU Lease ”), pursuant to which Purchaser shall lease that 429 square foot area of Unit RTL2 which contains the NRSU (as depicted on Exhibit O attached hereto) to Seller following the Closing (if at all). In the event that the parties are able to finalize a mutually acceptable form of Seller NRSU Lease, the parties shall execute an amendment to this Agreement, which amendment shall ratify the form of Seller NRSU Lease (subject to approval by Purchaser’s lender), annex the form of lease as an exhibit to the amendment and delete Section 8.7 of this Agreement (other than any terms that are defined in Section 8.7 and are used elsewhere in this Agreement).

9.6.1           In addition to such other terms as are reasonably acceptable to Purchaser and Seller, the Seller NRSU Lease shall contain the following terms:

9.6.1.1        The initial term of the Seller NRSU Lease shall be one (1) year commencing on the Closing Date; provided that Seller shall have the option to renew the Seller NRSU Lease for successive one (1) year terms for so long as (i) the NRSU Subdivision is not complete, so long as Seller is using commercially reasonable efforts to cause such completion, and (ii) Purchaser’s lender has failed to cause the NRSU to be released from the lien of the mortgage encumbering the Units.

9.6.1.2        Seller shall pay annual fixed rent of $1 to Purchaser, which rent shall accrue and be payable, if at all, upon exercise of Seller’s purchase option to acquire the NRSU set forth in the Seller NRSU Lease.

9.6.1.3        During the term of the Seller NRSU Lease, Seller shall be obligated to pay all real estate taxes, common charges and utilities associated with the NRSU; provided that Purchaser shall pay all such amounts prior to the NRSU Reconveyance Date and be compensated by Seller therefor on the NRSU Reconveyance Date. For purposes of this paragraph, NRSU Reconveyance Date shall include 9.6.4(iii) only.

9.6.1.4        The Seller NRSU Lease shall be automatically subordinate to the lien of any mortgages encumbering the Units.

9.6.1.5        Purchaser shall not provide any warranties or representations with respect to the demised premises of the Seller NRSU Lease, and shall be released from all liability (other than liability that arises from Purchaser’s willful misconduct or failure to act in violation of the terms of the Seller NRSU Lease or this Section 9.6 ) as it relates to the NRSU and the NRSU Subdivision.

9.6.1.6        Purchaser shall upon the request of Seller or the Condominium, reasonably cooperate (including delivering any documents and executing any instruments and affidavits prepared by Seller at Seller’s sole cost and expense) to the extent necessary in furtherance of the recordation of the 13 ^th Amendment, 14 ^th Amendment and Dec/By-Law Amendment and/or obtaining the NRSU Subdivision; provided that no such document shall materially increase any obligation, or decrease or restrict any rights, of Purchaser.

9.6.1.7        Prior to the NRSU Reconveyance Date, Purchaser shall not be permitted to modify any existing loan documents encumbering Unit RTL2 (or any portion thereof), or to enter into any new loan documents to encumber Unit RTL2 (or any portion thereof) unless such modifications and/or new loan documents provide for the release of the NRSU from the mortgage promptly upon the NRSU Subdivision and Seller’s delivery of all NRSU documentation reasonably required by Purchaser’s lender (even if Purchaser is then in default under such loan).

9.6.1.8        Seller shall not be permitted to assign the Seller NRSU Lease or sublet the NRSU.

9.6.2 In addition to those provisions set forth in Section 9.6.1 , upon completion of the NRSU Subdivision and the release of the NRSU from the lien of any mortgage(s) encumbering the Units, Seller shall be deemed to have exercised its option to purchase the NRSU from Purchaser. Upon Seller’s exercise of its purchase option:

9.6.2.1        Purchaser shall execute, acknowledge and deliver a bargain and sale deed without covenants against grantor’s acts for no-consideration, together with all required conveyance tax documents relating thereto, so as to convey the NRSU to Seller as of the date of the NRSU Subdivision in its “as-is, where-is” condition as of the Closing Date.

9.6.2.2        Seller shall pay all transfer taxes (if any) and all other costs and expenses to record the deed, release of lien or otherwise due and payable by virtue of the conveyance of the NRSU from Purchaser to Seller and in connection with the purchase option set forth in this Section 9.6.2.

9.6.2.3        Purchaser shall remove and satisfy (at its sole cost and expense) any voluntary liens, encumbrances or third-party claims encumbering the NRSU, which voluntary liens, encumbrances or third-party claims Purchaser caused to encumber the NRSU between the Closing and the NRSU Reconveyance Date.

9.6.2.4        Seller shall (a) pay those reasonable fees and expenses of Purchaser’s lender (including 3 ^rd -party attorneys’ fees and expenses actually incurred), and (b) provide such cooperation (including delivering documentation relating to the NRSU Subdivision) reasonably required by Purchaser’s lender to cause any mortgage to be released against the NRSU (provided that such release occurs promptly following the NRSU Subdivision) in an aggregate amount not to exceed TWENTY THOUSAND AND 00/100 DOLLARS ($20,000.00).

9.6.2.5           In the event that, following five (5) Business Days’ written notice from Seller (which notice may be delivered at any time following the NRSU Subdivision and release of Purchaser’s lender’s lien against the NRSU), Purchaser shall fail or refuse to deliver to Seller (i) those documents set forth in Section 9.6.2.1 , or (ii) such other reasonable documents requested by Seller, the Title Company or Purchaser’s lender in furtherance of the conveyance of the NRSU to Seller in accordance with the provisions of the Lease (which documents shall not impose any additional cost or obligation upon Purchaser and which shall be customary in a transaction of this nature), Seller shall have a limited power of attorney to execute any and all of such documents in (i) and (ii) of this Section 9.6.2.5 on Purchaser’s behalf so as to effectuate Seller’s purchase option set forth in the Seller NRSU Lease. This limited power of attorney shall be revoked immediately upon the closing of the sale of the NRSU pursuant to 9.6.2.

9.6.3           In the event that (i) the NRSU Subdivision is completed prior to the Closing Date, or (ii) Purchaser’s lender shall not approve the execution of the Seller NRSU Lease in the form negotiated and approved by Purchaser and Seller in accordance with this Section 9.6 , then the parties shall not execute the Seller NRSU Lease at Closing; provided that nothing contained in this Section 9.6.3 shall be deemed to create any mortgage contingency. In the event that, despite exercising commercially reasonable efforts to negotiate and draft a form of Seller NRSU Lease, the parties cannot agree on a final form thereof, then in the event that the NRSU Subdivision has not occurred prior to the Closing Date (or the Outside Closing Date, as the case may be) the provisions of Section 8.7 of this Agreement shall apply.         

9.6.4           As used in this Agreement, the term “NRSU Reconveyance Date” shall mean the date that is the earliest to occur of (i) a Sale, (ii) a Loan Enforcement Action, or (iii) the date that the NRSU is to be conveyed to Seller in accordance with the terms of this Agreement or the Seller NRSU Lease, as the case may be.

10.1         In the event Purchaser shall default in the performance of Purchaser's obligation under this Agreement to deliver the balance of the Purchase Price at Closing and the Closing does not occur as a result thereof (a “ Purchaser Default ”), provided Seller is not otherwise in default of this Agreement and Seller is ready, willing and able to consummate the transaction on the Closing Date, Seller shall be entitled, as its sole and exclusive remedy, to retain the Downpayment and any interest earned thereon as and for full and complete liquidated and agreed damages for Purchaser's default, and thereupon Purchaser and any Purchaser Related Parties shall be released from any further liability to Seller hereunder, except for those provisions hereof that by their express terms survive the termination of this Agreement. SELLER AND PURCHASER AGREE THAT IT WOULD BE IMPRACTICAL AND EXTREMELY DIFFICULT TO ESTIMATE THE DAMAGES WHICH SELLER MAY SUFFER UPON A PURCHASER DEFAULT AND THAT THE DOWNPAYMENT AND ANY INTEREST EARNED THEREON, AS THE CASE MAY BE, REPRESENTS A REASONABLE ESTIMATE OF THE TOTAL NET DETRIMENT THAT SELLER WOULD SUFFER UPON A PURCHASER DEFAULT. SUCH LIQUIDATED AND AGREED DAMAGES ARE NOT INTENDED AS A FORFEITURE OR A PENALTY WITHIN THE MEANING OF APPLICABLE LAW.

10.2         Subject to the provisions of Sections 2.3 , 8.3 and 8.4 hereof, in the event that Seller shall default in the performance of Seller's obligations under this Agreement, and such default (other than Seller’s failure to timely close on the Closing Date, which shall be an immediate default, without any notice or cure) is not cured within five (5) days after notice of such default, Purchaser shall be entitled, to either (a) terminate this Agreement and receive the Downpayment by instructing Escrow Agent to pay to Purchaser the Downpayment with the interest earned thereon, if any, (a “ Downpayment Return ”), upon which Seller shall be released from any further liability to Purchaser hereunder for any other damages of any kind whatsoever, except for the provisions hereof which by their express terms survive the termination of this Agreement, or (b) seek specific performance of Seller's obligations hereunder; but in no event whatsoever shall Seller be obligated to pay Purchaser damages of any kind or nature, subject to the following sentence. Only in the event that an action in the nature of specific performance of this Agreement is not an available remedy to Purchaser as a result of a willful default by Seller, then Purchaser shall have all rights and remedies available to it at law or in equity; provided that in no event shall Purchaser be entitled to seek (or recover) consequential, special or punitive damages. It shall be a condition precedent to any suit for specific performance, that Purchaser shall on or before the Closing Date (or the Outside Closing Date, as the case may be), time being of the essence, fully performed all of its obligations hereunder, which are capable of being performed (other than the payment of the Purchase Price (which Seller acknowledges would be impractical if Seller is in default hereunder), so long as Purchaser can demonstrate that it had all available funds required to pay the Purchase Price had Seller not allegedly defaulted or breached the Agreement). Any action for specific performance shall be commenced within sixty (60) days after the Closing Date (or the Outside Closing Date, as the case may be), or Purchaser shall receive a return of the Downpayment (together with any interest earned thereon), it being understood that if Purchaser fails to commence an action for specific performance within sixty (60) days after the Closing Date (or the Outside Closing Date, as the case may be), Purchaser's sole remedy shall be to receive a return of the Downpayment (together with any interest earned thereon). Upon such return and delivery, this Agreement shall terminate and neither party hereto shall have any further obligations hereunder except for those that are expressly provided in this Agreement to survive the termination hereof.

11.1         If, prior to the Closing, there shall occur (a) damage caused by fire or other casualty or (b) a taking by condemnation of the Property which would (i) cost an amount equal to three million dollars ($3,000,000.00) or more to repair, as reasonably determined by an engineer selected by Seller which is reasonably satisfactory to Purchaser; (ii) permit a Tenant under a Lease to terminate its Lease or (iii) permit a Tenant under a Lease to abate its rent thereunder for a period of not less than two (2) consecutive months pursuant to an express right therein, then, in any such event, Seller shall deliver to Purchaser written notice of such casualty or condemnation within five (5) Business Days of obtaining knowledge of same and Purchaser may elect to terminate this Agreement by written notice given to Seller within ten (10) Business Days after the date of the casualty or condemnation, in which event Seller shall promptly instruct Escrow Agent, to refund to Purchaser the Downpayment (together with all interest earned thereon), and this Agreement shall thereupon be null and void and neither party hereto shall thereupon have any further obligation to the other, except for the provisions hereof that by their express terms survive the termination of this Agreement. If Purchaser does not elect to terminate this Agreement, then the Closing shall take place as herein provided, without abatement of the Purchase Price, and Seller shall assign to Purchaser at the Closing, by written instrument, all of Seller's interest in and to any insurance proceeds or condemnation awards which may be payable to Seller on account of any such fire, casualty or condemnation, together with a credit for the amount of any deductible payable in connection with such proceeds or award, and shall deliver to Purchaser any such proceeds or awards actually theretofore paid, less any amounts due to third-parties (the “ Reimbursable Amounts ”) (i) actually and reasonably expended or incurred by Seller in adjusting any insurance claim or negotiating and/or obtaining any condemnation award (including, without limitation, reasonable attorneys' fees of outside counsel) and/or (ii) theretofore actually and reasonably incurred or expended by or for the account of Seller for the cost of any compliance with laws, protective restoration or emergency repairs made by or on behalf of Seller. The proceeds of rent interruption insurance, if any, shall on the Closing Date be appropriately apportioned between Purchaser and Seller.

11.2         If, prior to the Closing, there shall be (a) damage to a Unit caused by fire or other casualty, or (b) a taking by condemnation of any part of the Property, either which would fail to satisfy any of the thresholds set forth in Section 11.1(a) of this Agreement, then, and in any such event, neither party shall have the right to terminate its obligations under this Agreement by reason thereof, but Seller shall assign to Purchaser at the Closing, by written instrument, all of Seller's interest in any insurance proceeds or condemnation awards which may be payable to Seller on account of any such fire, casualty or condemnation together with a credit for the amount of any deductible payable in connection with such proceeds or award, or shall deliver to Purchaser any such proceeds or awards actually theretofore paid, in each case less any Reimbursable Amounts. The proceeds of rent interruption insurance, if any, shall on the Closing Date be appropriately apportioned between Purchaser and Seller.

11.3         Nothing contained in this Section 11 shall be construed to impose upon Seller any obligation to repair any damage or destruction caused by fire or other casualty or condemnation.

11.4          In the event Purchaser elects not to terminate this Agreement in accordance with Section 11.1 above, or upon the occurrence of the events set forth in Section 11.2 (a) or (b) above, Seller shall have the exclusive right to negotiate, compromise or contest the obtaining of any insurance proceeds and/or any condemnation awards prior to the Closing Date and Purchaser shall have such sole and exclusive right from and after the Closing Date.

11.5         Notwithstanding anything to the contrary contained in this Section 11 , Purchaser acknowledges that the insurance covering the Real Property, including the Units, is maintained by the Condominium. Accordingly, to the extent that any insurance payable as a result of a fire or other casualty is not assignable by Seller (as owner of the Units) pursuant to the terms of the Condominium Documents, Seller shall have no obligation in connection therewith.

Purchaser and Seller each represent and warrant that it has not dealt with any broker, consultant, finder or like agent who might be entitled to a commission or compensation on account of introducing the parties hereto, the negotiation or execution of this Agreement or the closing of the transactions contemplated hereby other than Hodges Ward Elliott, Inc. (the “ Broker ”). Seller shall pay the commission due to the Broker pursuant to a separate agreement between Seller and the Broker. Purchaser and Seller agree to indemnify and hold each other and the Seller Related Parties and Purchaser Related Parties of the other harmless from and against all claims, losses, liabilities and expenses (including, without limitation, reasonable attorney’s fees and disbursements) which may be asserted against, imposed upon or incurred by such party by reason of any claim made by any other broker, consultant, finder or like agent for commissions or other compensation for bringing about this transaction or claiming to have introduced the Property to Purchaser. The provisions of this Section 12 shall survive the Closing or the termination of this Agreement.

At the Closing, and only in the event that the Closing shall occur, Seller shall pay (i) the New York State Real Estate Transfer Tax imposed pursuant to Article 31 and Section 1402 of the New York Tax Law (the “ State Transfer Tax ”) and the New York City Real Property Transfer Tax imposed pursuant to Title 11, Chapter 21 of the New York City Administrative Code (the “ City Transfer Tax ”; and together with the State Transfer Tax, the “ Transfer Tax ”) upon or payable in connection with the transfer of title to the Property and the recordation of the Deed, which Transfer Tax shall, at Seller's election, be allowed for out of the Purchase Price and paid by Purchaser on behalf of Seller (provided that in no event shall Purchaser’s obligation hereunder exceed the balance of the Purchase Price); (ii) the cost of recording any instruments required to discharge any liens or encumbrances required to be discharged by Seller hereunder, (iii) any expenses Seller might incur in connection with the removal of title objections in accordance with this Agreement (including any matters Seller is obligated or agrees to cure pursuant to Section 2.3 hereof and payments relating to any fines and penalties required to be paid with respect to Seller-Obligated Violations pursuant to Section 2.1.7 hereof), (iv) payments made to the Broker in accordance Section 12 of this Agreement, (v) one-half of any escrow charges by the Escrow Agent, not to exceed $1,000, and (vi) any apportionment to be made pursuant to Article 6 of this Agreement. At Closing, Seller and Purchaser shall each execute and/or swear to the returns or statements required in connection with the Transfer Tax. All such tax payments shall be made payable directly to the order of the appropriate governmental office or the Title Company who shall pay such tax payments directly to the appropriate governmental office. Upon Closing, and only in the event that the Closing shall occur, Purchaser shall pay (a) all charges for recording and/or filing the Deed, and (b) all title charges and survey costs, including the premium on Purchaser's Title Policy and/or any lender’s title policy (if any) and (c) one-half of any escrow charges by Escrow Agent, not to exceed $1,000. Each of the parties hereto shall bear and pay the fees and disbursements of its own counsel, accountants and other advisors in connection with the negotiation and preparation of this Agreement and the Closing. The provisions of this Section 13 shall survive the Closing.

Except as otherwise provided in this Agreement, all notices, demands, requests, consents, approvals or other communications (for the purposes of this Section collectively referred to as “ Notices ”) required or permitted to be given hereunder or which are given with respect to this Agreement, in order to constitute effective notice to the other party, shall be in writing and shall be deemed to have been given when (a) personally delivered with signed delivery receipt obtained, (b) when transmitted by e-mail, if followed by giving of, pursuant to one of the other means set forth in this Section 14 before the end of the first Business Day thereafter, confirmation of successful transmission to the appropriate e-mail address of the address listed below as obtained by the sender from the sender's e-mail address, or (c) upon receipt, when sent by prepaid reputable overnight courier, in each case addressed as follows:

with a copy to (which shall not constitute notice of service of process for purposes hereunder):

with a copy to (which shall not constitute notice of service of process for purposes hereunder):

Notices shall be valid only if served in the manner provided above. Notices may be sent by the attorneys for the respective parties and each such Notice so served shall have the same force and effect as if sent by such party.

Except as expressly set forth in (x) this Agreement, (y) the documents described in Section 8 of this Agreement and (z) the Condominium Documents, where, in each case, such documents and provisions shall survive the Closing, the other provisions of this Agreement shall not survive the Closing. This Agreement shall be governed by, interpreted under, and construed and enforced in accordance with, the laws of the State of New York.

This Agreement may be executed in counterparts, each of which shall be deemed an original. The captions are for convenience of reference only and shall not affect the construction to be given any of the provisions hereof. The parties may sign this Agreement and deliver same by Portable Document Format (“PDF”), by telefaxed copies or by e-mail to the other party or its counsel, and any such delivered PDF, telefaxed or e-mailed copy shall be deemed to be an original and are binding on the parties so signing, and no objection shall be made to the introduction into evidence of any PDF, telefaxed or e-mailed copy on grounds related to the PDF, telefaxed or e-mailed copy not being an original.

This Agreement (including all exhibits annexed hereto), contains the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior understandings, if any, with respect thereto. This Agreement may not be modified, changed or supplemented, nor may any obligations hereunder be waived, except by written instrument signed by Purchaser and Seller, and where appropriate, Escrow Agent. Purchaser and Seller do not intend to confer any benefit hereunder on any person, firm or corporation other than Purchaser and Seller. The provisions of this Section 17 shall survive the Closing.

No waiver of any breach of any agreement or provision herein contained shall be deemed a waiver of any preceding or succeeding breach thereof or of any other agreement or provision herein contained. No extension of time for performance of any obligations or acts shall be deemed an extension of the time for performance of any other obligations or acts.

The parties hereto agree that neither this Agreement nor any memorandum or notice hereof shall be recorded. Any recordation or attempted recordation by Purchaser shall constitute a Purchaser's Default. Notwithstanding the foregoing, if Purchaser seeks to enforce specific performance in accordance with the terms of this Agreement, any filing by or on behalf of Purchaser of any notice of pendency, lis pendens or any other instrument against the Property in furtherance of such action for specific performance shall be permitted hereunder.

Purchaser shall neither assign its rights nor delegate its obligations hereunder without obtaining Seller's prior written consent, which consent may be granted or withheld in Seller's sole discretion. In connection with any assignment permitted or consented to hereunder, such assignee shall assume in writing all of the assignor's obligations under this Agreement in form and substance satisfactory to Seller, provided that Purchaser originally named herein shall not be relieved from its obligations under this Agreement. Any other purported or attempted assignment or delegation without obtaining Seller's prior written consent or not otherwise permitted hereunder shall be void and of no effect. Any change in control of Purchaser or of any of the direct or indirect ownership interests in Purchaser, at any level or tier of ownership, whether in one transaction or a series of transactions, shall constitute an assignment for purposes of this Section 20 . No consent given by Seller to any transfer or assignment of Purchaser's rights or obligations hereunder shall be construed as a consent to any other transfer or assignment of Purchaser's rights or obligations hereunder. Purchaser shall not resell the Property or any part thereof through a “double escrow” or other similar procedure without Seller's prior written consent, which consent may be granted or withheld in Seller's sole discretion. No transfer or assignment in violation of the provisions hereof shall be valid or enforceable.

All pronouns and any variations thereof shall be deemed to refer to the masculine, feminine or neuter, singular or plural, as the identity of the parties may require. If Purchaser consists of two or more parties, the liability of such parties shall be joint and several.

This Agreement shall bind and inure to the benefit of Seller, Purchaser and their respective permitted successors and permitted assigns.

23.1         Upon receipt by Escrow Agent of the Downpayment, provided that a completed and signed Request for Taxpayer Identification Number and Certification (Form W-9) and any other documentation required in connection with the placement of the Downpayment in an interest bearing account are provided to Escrow Agent, Escrow Agent shall cause the Downpayment to be deposited into an interest bearing account at Citibank, N.A. (the “ Escrow Account ”). Any interest earned on the Downpayment shall be deemed to be part of the Downpayment and shall be delivered by Escrow Agent to the party entitled to receive the Downpayment at Closing or upon termination of this Agreement in accordance with the terms hereof. The party receiving the Downpayment shall pay any income taxes payable thereon.

23.2       Escrow Agent shall acknowledge receipt of the Downpayment and agrees to hold the Downpayment in the Escrow Account pursuant to the provisions of this Agreement for application in accordance with the provisions hereof, upon the following terms:

23.2.1           Escrow Agent shall have no duties or responsibilities other than those expressly set forth herein. Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery or to enforce any obligation of any person to perform any other act. Escrow Agent shall be under no liability to the other parties hereto or to anyone else by reason of any failure on the part of any party hereto or any maker, guarantor, endorser or other signatory of any document or any other person to perform such person’s obligations under any such document. Except for amendments to this Agreement expressly approved by Escrow Agent and except for joint instructions given to Escrow Agent by Seller and Purchaser relating to the Downpayment, Escrow Agent shall not be obligated to recognize any agreement between any or all of the persons referred to herein, notwithstanding that references thereto may be made herein and whether or not it has knowledge thereof.

23.2.2           Escrow Agent is acting as a stakeholder only with respect to the Downpayment. Promptly after the receipt by Escrow Agent of (a) notice of any demand by either party claiming that it is entitled to the Downpayment or (b) any other claim or the commencement of any action, suit or proceeding by either party, Escrow Agent shall, if a claim in respect thereof is to be made against any of the other parties hereto, send a copy of such notice to the other party and inform the other party of such claim; but the failure by Escrow Agent to give such notice shall not relieve any party from any liability which such party may have to Escrow Agent hereunder. If Escrow Agent shall receive written notice from either Purchaser or Seller within ten (10) Business Days after it has notified both parties of the delivery of notice of any demand by either party claiming that it is entitled to the Downpayment, instructing Escrow Agent to not deliver the Downpayment to the other party or to otherwise hold the Downpayment, Escrow Agent shall take no action and shall continue to hold the Downpayment until it has received instructions in writing concurred to by Seller and Purchaser or until directed by a final order of judgment of a court of competent jurisdiction, whereupon Escrow Agent shall take such action in accordance with such instructions or such order.

23.2.3           It is understood and agreed that the duties of Escrow Agent are purely ministerial in nature and Escrow Agent is acting hereunder without charge as an accommodation to Purchaser and Seller. Escrow Agent may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by Escrow Agent), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained) which is believed by Escrow Agent to be genuine and to be signed or presented by the proper person or persons. Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Agreement or any of the terms hereof, unless evidenced by a final judgment or decree of a court of competent jurisdiction in the State of New York, or a Federal court in such jurisdiction or a writing delivered to Escrow Agent signed by the proper party or parties and, if the duties or rights of Escrow Agent are affected, unless it shall give its prior written consent thereto.

23.2.4           Except in connection with Escrow Agent’s willful misconduct or gross negligence, Escrow Agent shall be indemnified and held harmless jointly and severally by the other parties hereto from and against any and all expenses or loss suffered by Escrow Agent (as Escrow Agent), including reasonable third-party attorneys’ fees actually incurred, in connection with any action, suit or other proceeding involving any claim, which arises out of or relates to this Agreement, the services of Escrow Agent hereunder or the monies held by it hereunder.

23.2.5            Intentionally omitted .

23.2.6            Escrow Agent may resign at any time as Escrow Agent hereunder upon giving ten (10) days’ prior written notice to that effect to both Seller and Purchaser. In such event, the successor Escrow Agent shall be a nationally recognized title insurance company selected by Purchaser and acceptable to both Seller and Purchaser. Such party that will no longer be serving as Escrow Agent shall deliver, against receipt, to such successor Escrow Agent, the Downpayment held by such party, to be held by such successor Escrow Agent pursuant to the terms and provisions of this Agreement. If no such successor has been designated on or before such party ceases to be Escrow Agent hereunder, whether by resignation or otherwise, its obligations as Escrow Agent shall continue until such successor is appointed; provided , however , its sole obligation thereafter shall be to safely keep all monies then held by it and to deliver the same to the person, firm or corporation designated as its successor or until directed by a final order or judgment of a court of competent jurisdiction, whereupon Escrow Agent shall make disposition thereof in accordance with such order; provided further, however, that such Escrow Agent, in such event, shall deliver the Downpayment against receipt, to any bank or trust company or title insurance company operating in New York City selected by such party. If no successor Escrow Agent is designated and qualified within five (5) days after its resignation is effective, such party that will no longer be serving as Escrow Agent may apply to any court of competent jurisdiction for the appointment of a successor Escrow Agent. Further, notwithstanding anything contained in this Section 23 to the contrary, if Escrow Agent shall have received a notice of objection as provided for in Section 23.2.2 above within the time therein prescribed, or shall have received at any time before actual disbursement of the Downpayment a written notice signed by either Seller or Purchaser disputing entitlement to the Downpayment, Escrow Agent shall have the right, upon written notice to both Seller and Purchaser, (a) to deposit the Downpayment, together with the interest earned thereon with the Clerk of the Court in which any litigation is pending and/or (b) to take such reasonable affirmative steps as it may, at its option, elect in order to terminate its duties as Escrow Agent, including, without limitation, the depositing of the Downpayment, together with the interest earned thereon, with a court of competent jurisdiction and the commencement of an action for interpleader, the costs thereof to be borne by whichever of Seller or Purchaser is the losing party, and thereupon Escrow Agent shall be released of and from all liability hereunder except for any previous gross negligence or willful misconduct.

24.          Tax Proceedings.

From and after the date hereof until the Closing, Seller is hereby authorized to continue any proceeding or proceedings now pending for the reduction of the assessed valuation of the Property, and in Seller's sole discretion at its sole cost and expense to litigate or settle same; provided, however, that Purchaser shall be entitled to that portion of any refund relating to the period occurring after the Closing after payment to Seller of all costs and expenses, including, without limitation, reasonable attorneys' fees and disbursements, incurred by Seller in obtaining such refund. Seller shall not commence any proceeding for the reduction of the assessed valuation of the Property from and after the date of this Agreement without Purchaser’s consent (which may be withheld in Purchaser’s sole and absolute discretion). Purchaser shall deliver to Seller, reasonably promptly after request therefor, receipted tax bills and canceled checks used in payment of such taxes and shall execute any and all consents or other documents, and do any act or thing necessary for the collection of such refund by Seller. Any refunds or credits due for the periods prior to Purchaser's ownership of the Property shall remain the sole property of Seller. The provisions of this Section 24 shall survive the Closing.

25.          Confidentiality.

Until Closing, Purchaser covenants and agrees not to communicate the terms or any aspect of this Agreement and the transactions contemplated hereby to any person or entity and to hold, in the strictest confidence, the content of any and all information in respect of the Property which is supplied by Seller to Purchaser, without the express written consent of Seller; provided, however, that Purchaser may, without consent, disclose the terms hereof and the transactions contemplated hereby (a) to its respective advisors, consultants, attorneys, accountants, indirect shareholders and other investors, lenders and prospective (the “ Transaction Parties ”) without the express written consent of Seller, so long as any such Transaction Parties to whom disclosure is made shall also agree to keep all such information confidential in accordance with the terms hereof and (b) if disclosure is, in the reasonable opinion of Purchaser’s internal or external attorneys, deemed to be reasonably necessary pursuant to applicable law, rule, regulation or as may be required by regulatory, judicial or other compulsory process, provided that in such event Purchaser shall use reasonable efforts to the extent practicable notify Seller in writing of such required disclosure, shall exercise commercially reasonable efforts to preserve the confidentiality of the confidential documents or information, as the case may be, including, without limitation, reasonably cooperating with Seller, at its sole cost and expense, to obtain an appropriate order or other reliable assurance that confidential treatment will be accorded such confidential documents or information, as the case may be, by such tribunal and shall disclose only that portion of the confidential documents or information which it is legally required to disclose. If this Agreement is terminated, such confidentiality shall be maintained and Purchaser and the Transaction Parties will destroy or deliver to Seller, upon request, all documents and other materials, and all copies thereof, obtained thereby in connection with this Agreement that are subject to such confidence, with any such destruction confirmed by Purchaser and the Transaction Parties in writing. The foregoing confidentiality obligations shall not apply to the extent that any such information is a matter of public record or is provided in other sources readily available to the real estate industry other than as a result of disclosure by Purchaser or the Transaction Parties. Neither party shall issue (or direct to be issued) a press-release relating to the sale of the Units (whether prior or subsequent to Closing) without the consent of the other party as to timing, form and content. Purchaser hereby indemnifies Seller against, and holds Seller harmless from, any and all claims, losses, damages, liabilities and expenses (including, without limitation, reasonable attorneys' fees and disbursements) arising in connection with Purchaser's obligations under this Section 25 . The provisions of this Section 25 shall survive the Closing.

26.          Intentionally Omitted.

27.          Additional Provisions .

27.1         Purchaser acknowledges that Seller may be disposing of the Property as part of an IRC Section 1031 Tax Deferred Exchange for Seller's benefit. Purchaser agrees to use its reasonable efforts to assist and cooperate in such exchange for the benefit of Seller provided that the Closing Date shall not be accelerated or adjourned, and Purchaser shall incur no liability, cost or expense and will execute any and all documents, subject to the reasonable approval of its counsel, as are reasonably necessary in connection with such exchange, including but not limited to taking title to and conveying title to any other property designated by Seller as part of such exchange.

27.2         TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

27.3        Without limiting the provisions of Section 3.3 hereof, in the event by reason of the existing mortgage on the Units, a mortgage recording tax credit becomes available pursuant to Section 339-ee(2) of the New York Condominium Act or otherwise which reduces what would otherwise be payable as the mortgage tax to record any mortgage obtained by Purchaser to finance the purchase of the Units, which credit is actually realized by Purchaser at the Closing, Seller will be reimbursed by Purchaser at Closing for fifty (50%) percent of any mortgage tax credit to which Purchaser actually receives the benefit at Closing. Seller shall request, and shall use commercially reasonable efforts to obtain, cooperation from its mortgage lender as may be necessary to obtain any such mortgage recording tax savings credit and Purchaser shall pay one-half (1/2) of all the costs and expenses of the mortgagee and the mortgagee’s counsel that may be charged in connection therewith. Purchaser acknowledges that the cooperation of any existing mortgage holder in assigning any mortgage is not a condition to Closing hereunder.

27.4.        For the purposes of this Agreement, the capitalized term “ Business Day(s) ” means any day of the year except Saturdays, Sundays and national holidays on which banks are required by law to close in New York City. If any period expires on a day which is not a Business Day or any event or condition is required by the terms of this Agreement to occur or be fulfilled on a day which is not a Business Day, such period shall expire or such event or condition shall occur or be fulfilled, as the case may be, on the next succeeding Business Day.

27.5.          Intentionally omitted .

27.6         The parties acknowledge that the Property is comprised of, inter alia , three (3) separate Units. Notwithstanding that there are three (3) separate Units, the parties agree that there shall be one Closing and Purchaser shall not be permitted to acquire one Unit and not any of the others, it being the intent and agreement of the parties that the sale and acquisition of all Units to be sold shall occur contemporaneously subject to and in accordance with the terms of this Agreement. A default by either party in connection with any Unit shall be deemed a default in connection with all Units.         

[SIGNATURES ON THE FOLLOWING PAGE]

IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the day and year first above written.

ESCROW AGENT:

Exhibit 10.2

AMENDMENT TO AGREEMENT OF PURCHASE AND SALE

THIS AMENDMENT TO AGREEMENT OF PURCHASE AND SALE (this “ Amendment ”) is entered into as of May 3, 2019, by and between MB-REEC HOUSTON PROPERTY OWNER LLC, a Delaware limited liability company, having an address c/o Magnum Real Estate Group, 594 Broadway, Suite 1010, New York, New York 10012 (“ Seller ”) and ARG NYC196ORCHARD, LLC, a Delaware limited liability company, having an address c/o AR Global, 405 Park Avenue, New York, New York 10022 (“ Purchaser ”).

RECITALS:

A.        Seller and Purchaser are parties to that certain Agreement of Purchase and Sale dated as of April 10, 2019 (the “ Sale Agreement ”).

B.         Seller and Purchaser hereto desire to amend the Sale Agreement as set forth herein.

AGREEMENT:

In consideration of the mutual covenants herein contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Seller and Purchaser agree as follows:

1.           Recitals; Definitions . The recitals set forth above are hereby incorporated herein. All capitalized terms not defined herein shall have the meanings ascribed to such terms in the Sale Agreement.

2.           Seller NRSU Lease Negotiation Deadline . Section 9.6 of the Sale Agreement is hereby amended by deleting “May 6, 2019” and inserting “May 31, 2019” in its place and stead.

3.           Miscellaneous . Except to the extent expressly modified by this Amendment, the Sale Agreement is ratified and remains in full force and effect. To the extent of any inconsistency between this Amendment and the Sale Agreement, the terms and conditions of this Amendment shall control. This Amendment may be executed in multiple counterparts, all of which, taken together, shall constitute one document. This Amendment shall be deemed effective against a party upon receipt by the other party (or its counsel) of a counterpart executed by electronic transmission. The parties may sign this Amendment and deliver same by Portable Document Format (“PDF”), by telefaxed copies or by e-mail to the other party or its counsel, and any such delivered PDF, telefaxed or e-mailed copy shall be deemed to be an original and are binding on the parties so signing, and no objection shall be made to the introduction into evidence of any PDF, telefaxed or e-mailed copy on grounds related to the PDF, telefaxed or e-mailed copy not being an original.

[Signatures on following page]

IN WITNESS WHEREOF , the parties hereto have executed this Amendment on the day and year written above.

Exhibit 10.3

SECOND AMENDMENT TO AGREEMENT OF PURCHASE AND SALE

THIS SECOND AMENDMENT TO AGREEMENT OF PURCHASE AND SALE (this “ Amendment ”) is entered into as of May 31, 2019, by and between MB-REEC HOUSTON PROPERTY OWNER LLC, a Delaware limited liability company, having an address c/o Magnum Real Estate Group, 594 Broadway, Suite 1010, New York, New York 10012 (“ Seller ”) and ARG NYC196ORCHARD, LLC, a Delaware limited liability company, having an address c/o AR Global, 405 Park Avenue, New York, New York 10022 (“ Purchaser ”).

RECITALS:

A.       Seller and Purchaser are parties to that certain Agreement of Purchase and Sale Agreement dated as of April 10, 2019 (the “ Original Sale Agreement ”), which Original Sale Agreement was subsequently amended pursuant to that Amendment to Agreement of Purchase and Sale between Seller and Purchaser dated as of May 3, 2019 (the “ First Amendment ”; the Original Sale Agreement as amended by the First Amendment, the “ Sale Agreement ”).

B.       Seller and Purchaser hereto desire to further amend the Sale Agreement as set forth herein.

AGREEMENT:

In consideration of the mutual covenants herein contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Seller and Purchaser agree as follows:

1.        Recitals; Definitions . The recitals set forth above are hereby incorporated herein. All initial capitalized terms not defined herein shall have the meanings ascribed to such terms in the Sale Agreement.

2.        Seller NRSU Lease Negotiation Deadline . Section 9.6 of the Sale Agreement is hereby amended by deleting “May 31, 2019” and inserting “June 7, 2019” in its place and stead.

3.        Miscellaneous . Except to the extent expressly modified by this Amendment, the Sale Agreement is ratified and remains in full force and effect. To the extent of any inconsistency between this Amendment and the Sale Agreement, the terms and conditions of this Amendment shall control. This Amendment may be executed in multiple counterparts, all of which, taken together, shall constitute one document. This Amendment shall be deemed effective against a party upon receipt by the other party (or its counsel) of a counterpart executed by electronic transmission. The parties may sign this Amendment and deliver same by Portable Document Format (“PDF”), by telefaxed copies or by e-mail to the other party or its counsel, and any such delivered PDF, telefaxed or e-mailed copy shall be deemed to be an original and are binding on the parties so signing, and no objection shall be made to the introduction into evidence of any PDF, telefaxed or e-mailed copy on grounds related to the PDF, telefaxed or e-mailed copy not being an original.

[Signatures on following page]

IN WITNESS WHEREOF , the parties hereto have executed this Amendment on the day and year written below.

Exhibit 10.4

THIRD AMENDMENT TO AGREEMENT OF PURCHASE AND SALE

THIS THIRD AMENDMENT TO AGREEMENT OF PURCHASE AND SALE (this “ Amendment ”) is entered into as of June 7, 2019, by and between MB-REEC HOUSTON PROPERTY OWNER LLC, a Delaware limited liability company, having an address c/o Magnum Real Estate Group, 594 Broadway, Suite 1010, New York, New York 10012 (“ Seller ”) and ARG NYC196ORCHARD, LLC, a Delaware limited liability company, having an address c/o AR Global, 405 Park Avenue, New York, New York 10022 (“ Purchaser ”).

RECITALS:

A.          Seller and Purchaser are parties to that certain Agreement of Purchase and Sale Agreement dated as of April 10, 2019 (the “ Original Sale Agreement ”), which Original Sale Agreement was subsequently amended pursuant to that Amendment to Agreement of Purchase and Sale between Seller and Purchaser dated as of May 3, 2019 (the “ First Amendment ”) and that Second Amendment to Agreement of Purchase and Sale between Seller and Purchaser dated as of May 31, 2019 (the “ Second Amendment ”; the Original Sale Agreement as amended by the First Amendment and the Second Amendment, the “ Sale Agreement ”).

B.           Seller and Purchaser hereto desire to further amend the Sale Agreement as set forth herein.

AGREEMENT:

In consideration of the mutual covenants herein contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Seller and Purchaser agree as follows:

1.             Recitals; Definitions . The recitals set forth above are hereby incorporated herein. All initial capitalized terms not defined herein shall have the meanings ascribed to such terms in the Sale Agreement.

2.             Closing Date .

2.1           Section 4 of the Sale Agreement is hereby amended by deleting “June 10, 2019” and inserting “June 20, 2019” in its place and stead.

2.2           Further, Seller shall have the right, at Seller’s sole option, to accelerate the Closing Date to any Business Day selected by Seller in a written notice to Purchaser (which notice may be delivered by email from Seller’s counsel to Purchaser’s counsel; a “ Closing Acceleration Notice ”); provided that:

2..2.1       the Closing Date selected in the Closing Acceleration Notice shall be no earlier than the later of (a) three (3) Business Days from the date that the Closing Acceleration Notice is sent and (b) June 13, 2019, and

2.2.2       the Closing Acceleration Notice shall set forth whether the NRSU Subdivision will be completed prior to the Closing Date, or whether Purchaser and Seller shall close subject to the provisions of Sections 8.7 and/or 9.6 of the Sale Agreement.

3.            Seller NRSU Lease Negotiation Deadline . Section 9.6 of the Sale Agreement is hereby amended by deleting “June 7, 2019” and inserting the phrase “the Closing Date” in its place and stead.

4.            Miscellaneous . Except to the extent expressly modified by this Amendment, the Sale Agreement is ratified and remains in full force and effect. To the extent of any inconsistency between this Amendment and the Sale Agreement, the terms and conditions of this Amendment shall control. This Amendment may be executed in multiple counterparts, all of which, taken together, shall constitute one document. This Amendment shall be deemed effective against a party upon receipt by the other party (or its counsel) of a counterpart executed by electronic transmission. The parties may sign this Amendment and deliver same by Portable Document Format (“PDF”), by telefaxed copies or by e-mail to the other party or its counsel, and any such delivered PDF, telefaxed or e-mailed copy shall be deemed to be an original and are binding on the parties so signing, and no objection shall be made to the introduction into evidence of any PDF, telefaxed or e-mailed copy on grounds related to the PDF, telefaxed or e-mailed copy not being an original.

[Signatures on following page]

IN WITNESS WHEREOF , the parties hereto have executed this Amendment on the day and year written below.

Exhibit 10.5

Loan Agreement

Dated as of July 17 , 2019

Between

ARG NYC196ORCHARD, LLC

as Borrower

and

NATIONWIDE LIFE INSURANCE COMPANY ,

as Lender

TABLE OF CONTENTS

LOAN AGREEMENT

THIS LOAN AGREEMENT (this “Agreement”), is entered into as of July 17, 2019, between ARG NYC196ORCHARD, LLC , a Delaware limited liability company (“ Borrower ”), with an address at c/o AR Global, 405 Park Avenue, New York, New York 10022, and NATIONWIDE LIFE INSURANCE COMPANY , an Ohio corporation, together with its successors and assigns ( “ Lender ”), with an address at One Nationwide Plaza, Fifth Floor, Columbus, Ohio 43215, ATTN: Real Estate Investments (1-05-701).

RECITALS

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

Article I

DEFINITIONS

1.1            Definitions. As used herein, the following terms shall have the following meanings: “ Accessibility Laws ” is defined in Section 3.3(f).

“ ADA ” is defined in Section 3.3(f).

“ Affiliate ” shall mean, as to any Person, any other Person that (i) directly or indirectly, owns more than twenty percent (20%) of the beneficial ownership interest of such Person, (ii) is directly or indirectly in Control of such Person, or (iii) is Controlled by or is under common control with such Person.

“ Application ” means that certain Commercial Mortgage Loan Application submitted by or on behalf of Borrower in connection with the Loan and accepted by Lender on June 7, 2019.

“ Appurtenances ” is defined in the Security Instrument.

“ Assignment ” means that certain Assignment of Leases, Rents and Profits, dated as of the Closing Date, executed by Borrower in favor of Lender, securing Borrower’s obligations under the Note and encumbering, among other things, the Leases and Rents derived from the Property, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“ Association ” means any incorporated condominium association created to assume and establish the governance of the affairs of the Condominium pursuant to and as permitted by the Condominium Act.

“ at Par ” means without the payment of any Prepayment Premium.

“ Award(s) ” is defined in Section 6.4(b).

“ Borrower Control Party ” means Person(s) owning, directly or indirectly through one or more intermediaries, (i) a general partnership interest or a Controlling Interest of the limited partnership interests in Borrower (if Borrower is a partnership or joint venture), (ii) a manager’s or managing member’s interest in Borrower or a Controlling Interest of the ownership or membership interests in Borrower (if Borrower is a limited liability company), (iii) a Controlling Interest of any class of voting stock of Borrower (if Borrower is a corporation), (iv) a trustee’s interest or a Controlling Interest of the beneficial interests in Borrower (if Borrower is a trust), or (v) a general partner’s interest or a Controlling Interest of the partnership interests in Borrower (if Borrower is a limited partnership or limited liability partnership) .

“ Borrower Parties ” means, collectively, the Borrower, any Guarantor and any other individuals (but excluding any individual signing the Loan Documents on behalf of Borrower and/or Guarantor) and/or entities that are parties to the Loan Documents (other than Lender, any property manager and any Lender agent).

“ Borrower’s Knowledge ” (including the phrases “to Borrowers’ knowledge”, “to any Borrower’s knowledge”, or comparable phrases [including “ to the best of ” a Borrower’s knowledge]) means with respect to Borrower, the current actual knowledge of those persons charged with responsibilities relating to the acquisition, ownership, and management of the Property, after reasonable and prudent inquiry consistent with his/her management responsibilities, including inquiry of any property manager.

“ Business Day ” shall mean any day other than a Saturday, Sunday or legal holiday on which commercial banks are authorized or required to be closed in Columbus, Ohio.

“ By-Laws ” shall mean the by-laws of the Condominium, as may be amended from time to time.

“ Carveout Guarantor ” means New York City Operating Partnership, L.P., a Delaware limited partnership.

“ Carveout Guaranty ” means that certain Carveout Guaranty, dated as of the Closing Date, executed by Carveout Guarantor in favor of Lender, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“ Casualty ” is defined in Section 6.2(a).

“ Charges ” is defined in Section 2.7.

“ Closing Date ” means the date hereof .

“ Code ” means the Uniform Commercial Code, as adopted by the State, as amended from time to time.

“ Commercial Unit ” is defined in the Security Instrument.

“ Condominium ” means the 196 Orchard Condominium, as established by the Condominium Declaration.

“ Condominium Act ” means the New York Condominium Act, as amended from time to time (New York Real Property Law, Article 9-B).

“ Condominium Board ” means the board of managers of the Condominium which will manage the affairs of the Condominium.

“ Condominium Declaration ” means that certain Declaration of 196 Orchard Condominium dated October 18, 2017 and recorded December 21, 2017, as amended by that certain First Amendment to Declaration dated July 18, 2018 and recorded December 4, 2018, as may be amended from time to time.

“ Condominium Documents ” means (i) the Condominium Declaration, (ii) the By-Laws, (iii) any Articles of Incorporation or by-laws, as may be amended from time to time, promulgated in furtherance of the creation of the Association, and (iv) any rules and regulations applicable to the Condominium or Association.

“ Control ” means when used with respect to a specified Person, the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person and/or the right to make major decisions with respect to such Person (including, without limitation, all major decisions regarding capital events, financings and dispositions) , whether through the ownership of voting securities, by contract or otherwise , including the power to elect a majority of the directors or trustees of a corporation or trust or the power to remove and replace a general partner or managing member, as the case may be. “Controlling” and “Controlled” have meanings correlative to the foregoing.

“ Controlled Substance ” means any drug or chemical whose manufacture, possession, or use is regulated by any Governmental Authority, such as illicitly used drugs or prescription medications that are designated a controlled substance by the US Drug Enforcement Agency.

“ Controlled Substances Laws ” means The Federal Controlled Substances Act (21 U.S.C. § 801 et seq.) or any other similar or related federal, state or local law, ordinance, code, rule, regulation or order.

“ Controlled Substances Uses ” means any cultivation, growth, creation, production, manufacture, sale, distribution, storage, handling, possession or other use of a Controlled Substance.

“ Controlling Interest ” means (i) fifty percent (50%) or more of ownership interests in a Person, or (ii) a percentage ownership interest in a Person of less than fifty percent (50%) coupled with the possession, directly or indirectly, of Control of such Person.

“ Default Rate ” means a rate equal to the lesser of either (a) the highest rate of interest then allowed by the Laws of the State or, if controlling and not in violation of the Laws of the State, the Laws of the United States, or (b) the then applicable rate of interest of the Note plus 500 basis points per annum; all interest accruing at the Default Rate shall be added to and become a part of the Indebtedness .

“ Disposition ” is defined in Section 7.1.

“ Drug-Related Activities” means any Controlled Substances Uses, any violation of any Controlled Substances Law or any business, communications, financial transactions or other activities related to Controlled Substances or Controlled Substances Uses.

“ Embargoed Person ” means any Person, entity or government, subject to trade restrictions under applicable Laws, including but not limited to, the International Emergency Economic Powers Act, 50 U.S.C. §1701 et seq., The Trading with the Enemy Act, 50 U.S.C. App. 1 et seq., and any Executive Orders or regulations promulgated thereunder with the result that the investment in Borrower is prohibited by applicable Law or Borrower is in violation of applicable Law.

“ Enforcement Costs ” means any and all actual out-of-pocket costs and expenses incurred by Lender in connection with the enforcement of any of Lender’s rights and/or remedies under the Loan Documents, including, but not limited to reasonable attorneys’ fees and third party reports or in connection with any refinancing or restructuring of the Loan in the nature of a “work-out” or of any insolvency or bankruptcy proceeding.

“ Environmental Laws ” is defined in the Indemnity Agreement.

“ Environmental Report ” means the Phase I Environment Site Assessment dated March 7, 2019, Project No. R19-1125, prepared by Nova Consulting Group, Inc., and which Lender is authorized to rely upon as set forth in the Reliance Authorization letter dated June 5, 2019 executed by Nova Consulting Group, Inc.

“ ERISA ” is defined in Section 3.14.

“ Event of Default ” is defined in Section 8.1.

“ Evidence of Insurance ” is defined in Section 6.1(b).

“ Existing Use ” means retail or commercial property, as applicable.

“ Financial Statements ” refers to any of the financial statements provided to Lender in connection with the Loan, including, but not limited to those provided pursuant to Section 4.7 hereof.

“ Fixtures ” is defined in the Security Instrument.

“ Form Lease ” is defined in Section 4.12(b). As of the Effective Date, there is no Form Lease in place with the Lender.

“ Governing Documents ” is defined in Section 3.6(a).

“ Governmental Authority ” means any governmental and quasi-governmental bodies, regulatory bodies and authorities, local, state or federal, having jurisdiction over Borrower, Guarantor, Lender or the Property or any part thereof.

“ Guarantor ” means individually or collectively, the non-Borrower Indemnitor, and the Carveout Guarantor, and Payment Guarantor, if any.

“ Guaranty Agreement ” means individually or collectively, the Indemnity Agreement, Payment Guaranty and Carveout Guaranty, as applicable, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“ Hazardous Substances ” is defined in the Indemnity Agreement.

“ Impositions ” is defined in Section 4.3(a).

“ Improvements ” is defined in the Security Instrument.

“ Indebtedness ” means (i) the principal and accrued but unpaid interest, from time to time, evidenced by the Note; (ii) any other amounts, payments, obligations, reimbursements, costs, interest, or premiums payable by Borrower to Lender under the Loan Documents; (iii) such additional or future sums (whether or not obligatory), with interest thereon, as may hereafter be borrowed from Lender when evidenced by a promissory note which, by its terms, is secured by the Security Instrument and Assignment (it being contemplated by Borrower and Lender that such future indebtedness may be incurred); (iv) any and all other indebtedness, obligations, and liabilities of any kind or character of Borrower to Lender, now or hereafter existing, absolute or contingent, due or not due, arising by operation of law or otherwise, direct or indirect, primary or secondary, joint, several, joint and several, fixed or contingent, secured or unsecured, including indebtedness, obligations, and liabilities to Lender of Borrower as a member of any partnership, joint venture, trust or other type of organization, and whether incurred by Borrower as principal, surety, endorser, guarantor, accommodation party or otherwise; and (v) any and all renewals, modifications, amendments, restatements, rearrangements, consolidations, substitutions, replacements, enlargements, and extensions of any of the foregoing. Notwithstanding the foregoing provisions of this definition, this Agreement, the Security Instrument and the other Loan Documents shall not secure any such other Indebtedness with respect to which Lender is by applicable Law prohibited from obtaining a Lien on real estate, nor shall this definition operate or be effective to constitute or require any assumption or payment by any Person, in any way, of any debt or obligation of any other Person to the extent that the same would violate or exceed the limit provided in any applicable usury or other Law.

“ Indemnitor ” is defined in the Indemnity Agreement.

“ Indemnity Agreement ” means that certain Indemnity Agreement executed by Indemnitor on or about the date hereof, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“ Interest Rate ” is defined in Section 2.3(a).

“ Interim Interest Period ” is defined in Section 2.3(a).

“ Investor ” is defined in Section 9.16.

“ Key Principal ”, individually, or “ Key Principals ”, collectively, means (i) Carveout Guarantor, or (ii) New York City REIT, Inc., a Maryland corporation.

“ Late Charge ” means an amount equal to the lesser of (i) the maximum late payment charge permitted by applicable Law or (ii) 5% of any full monthly installment of principal and/or interest, tax and/or insurance deposit payments, protective advances and lump sum payments and any deposits that may be required to be made by Borrower into any deposit or reserve accounts pursuant to the terms of the Loan Documents.

“ Law ”, individually, or “ Laws ” collectively, means the provisions of all permits and licenses and all statutes, laws (including any health or safety law governing Borrower, its business, operations, property, assets or equipment, or the Property), ordinances, rules, requirements, resolutions, policy statements and regulations of any applicable Governmental Authority and interpretations thereof now or hereafter applicable to, or bearing on, the construction, development, maintenance, use, operation, sale, financing or leasing of the Property or any part thereof, or any adjoining sidewalks, streets, ways, parking areas or driveways, or the formation, existence, business or good standing of Borrower, or protection of the environment or applicable to Lender’s exercise of its rights under the Loan Documents.

“ Lease ”, individually, or “ Leases ”, collectively, means any and all leases, master leases, subleases, licenses, concessions, or other agreements (whether written or oral, or now or hereafter in effect) which grant to third parties a possessory interest in and to, or the right to use or occupy, all or any part of the Property, together with all guarantees thereof and security and other deposits related thereto (to the extent same are not Rents), and all other rights and benefits arising from the Leases except the Rents, and any and all amendments, extensions, expansions, renewals or restatements thereto or thereof.

“ Lien ” shall mean any lien, mortgage, pledge, security interest, financing statement, charge or encumbrance of any kind (including any conditional sale or other title retention agreement or any Lease in the nature thereof) and any agreement to give any lien, mortgage, pledge, security interest, or other encumbrance of any kind.

“ Loan ” means the loan in the aggregate principal amount of FIFTY ONE MILLION and NO/ 100 U.S. DOLLARS ($51,000,000.00) to be funded by Lender to Borrower under the terms of and subject to this Agreement, to be evidenced by the Note and to be secured by the Loan Documents.

“ Loan Amount ” means an amount equal to FIFTY ONE MILLION and NO/ 100 U.S. DOLLARS ($51,000,000.00).

“ Loan Documents ” means this Agreement, the Note, the Security Instrument, the Assignment, the Guaranty Agreement and all other documents and instruments executed as further evidence of, as additional security for or executed in connection with the Loan, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time .

“ Loan Year ” means each twelve month period beginning with August 1, 2019 and each anniversary thereof provided the first Loan Year shall include the Interim Interest Period.

“ Major Tenant Lease ” means any existing Lease or future Lease (i) having a net rentable area occupied or to be occupied thereunder exceeding 10,000 of the net leasable area of the Improvements; (ii) having a lease term, excluding renewal options, that exceeds seven (7) years; (iii) having a tenant that is an Affiliate of Borrower or a related entity of any Guarantor; (iv) that is to be used to satisfy the release of funds deposited with Lender or any agent of Lender or for other rental achievement purposes; or (v) with CVS, Equinox or Marshalls .

“ Major Tenants ” means all tenants leasing space pursuant to Major Tenant Leases.

“ Manager ” means New York City Operating Partnership, L.P., a Delaware limited partnership, or any other general partner, manager , sole member or managing member, if an entity, of Borrower as applicable.

“ Material Adverse Change ” means any event, circumstance, fact, condition, development or occurrence that has had or is likely to have a Material Adverse Effect.

“ Material Adverse Effect ” means any act, event, condition or circumstance which likely will materially and adversely affect (i) the business, operations, condition (financial or otherwise), prospects, liabilities, assets, results of operations, capitalization, liquidity or any properties of Borrower , Guarantor or any Borrower Control Party taken as a whole; (ii) the value of the Property; (iii) the ability of Borrower or any Guarantor (or any Borrower Control Party) to pay and perform the Indebtedness or the other Obligations; or (iv) the validity, enforceability or binding effect of any of the Loan Documents.

“ Material Default ” means those Events of Default listed in Section 8.1(a).

“ Maturity Date ” means August 1, 2029.

“ Minimum Parking Requirement ” is inapplicable. There are no parking spaces on the Property pursuant to the Zoning Report.

“ Minority Interest ” means forty nine percent (49%) or less of the direct or indirect ownership interests in a Person (unless coupled with the possession, directly or indirectly, of Control).

“ Note ” means that certain Modification, Consolidation and Extension Promissory Note dated as of the Closing Date, in the original principal amount of FIFTY ONE MILLION and NO/ 100 U.S. DOLLARS ($51,000,000.00), executed by Borrower and payable to the order of Lender (as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time).

“ Notice ” means any notice, consent, request, report or other communication under this Agreement, the Indemnity Agreement or any other Loan Document given in accordance with Section 9.1.

“ NRSU Undertaking Agreement ” is defined in Section 3.2.

“ Obligations ” means any and all of the covenants, conditions, warranties, representations, and other obligations (other than to repay the Indebtedness) made or undertaken by Borrower, Guarantor or any Borrower Party to Lender as set forth in the Note, this Agreement or any of the other Loan Documents.

“ OFAC ” is defined in Section 3.8(a).

“ PACE Lien ” means a Lien securing any assessment, bond, loan, financing, or other debt incurred pursuant to “property assessed clean energy,” “special energy financing district,” or similar Laws.

“ Payment Date ” means that certain date specified in Section 2.3(b) or such other date that a payment is required to be made pursuant to the terms of the Loan Documents, as applicable.

“ Payment Guaranty ” means any Payment Guaranty executed by any guarantor of Borrower’s obligations under the Loan Documents (“ Payment Guarantor ”) in favor of Lender, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time. As of the Closing Date, a Payment Guaranty is not applicable.

“ PCR ” means the Property Condition Assessment Report dated March 7, 2019, Project No. R19-1125, prepared by Nova Consulting Group, Inc., and which Lender is authorized to rely upon as set forth in the Reliance Authorization letter dated June 5, 2019 executed by Nova Consulting Group, Inc.

“ Permitted Disposition ” means any Disposition made in accordance with Section 7.2.

“ Permitted Encumbrances ” means (i) those matters accepted by Lender as set forth in the title insurance commitment or proforma policy issued to Lender precedent to the issuance of a Loan Policy of Title Insurance insuring the first lien priority of the Security Instrument , (ii) Liens for Impositions not yet due and payable (and not delinquent) or that are bonded or discharged in accordance with the terms of this Agreement (but expressly excluding any PACE Lien), (iii) Leases expressly permitted by the terms of this Agreement, (iv) statutory mechanics and/or materialmen Liens incurred in the ordinary course (or created by a tenant under its Lease), provided that any such Liens are bonded or discharged in accordance with the terms of this Agreement, (v) the Liens created by, or expressly permitted under, this Agreement and the other Loan Documents, and (vi) those survey and title matters (including any liens) otherwise approved by Lender, in writing, after the Closing Date.

“ Person ” means any individual, partnership, joint venture, firm, corporation, limited liability company, limited partnership, unincorporated organization, real estate investment trust or any other form of entity, association, pension, profit-sharing or other employee benefit plans, trust, estate, guardian, trustee, executor, administrator, agent, committee, trustee in bankruptcy, receiver, assignee for the benefit of creditors or other individual acting in a representative or fiduciary capacity or other enterprise or any government or political subdivision or any agency, department or instrumentality thereof.

“ Prepayment Date ” means (i) the date of any voluntary or involuntary prepayment of the Loan; or (ii) in the event Lender accelerates the Loan the “Prepayment Date” shall be deemed to be the date that the Maturity Date is accelerated as provided in Section 8.2(a).

“ Prepayment Premium ” means a sum equal to the greater of: (i) an amount equal to the sum of (a) the present value of the scheduled monthly payments due under this Agreement from the Prepayment Date to the Maturity Date, and (b) the present value of the amount of principal and interest due under this Agreement on the Maturity Date (assuming all scheduled monthly payments due prior to the Maturity Date were made when due), minus (c) the outstanding principal balance of the Loan as of the Prepayment Date; or (ii) one (1%) percent of the outstanding principal balance of the Loan on the Prepayment Date. The present values described in (i)(a) and (i)(b) above shall be computed on a monthly basis as of the Prepayment Date discounted at the yield-to-maturity of the U.S. Treasury Note or Bond closest in maturity to the Maturity Date of the Loan as reported by The Wall Street Journal or another comparable financial market resource designated by Lender on the fifth (5 ^th ) Business Day preceding the Prepayment Date.

“ Property ” is defined in the Security Instrument.

“ Protective Advance ” is defined in Section 8.6(a).

“ Purchase Agreement ” means that certain Agreement of Purchase and Sale between Borrower and MB-REEC HOUSTON PROPERTY OWNER LLC dated April 10, 2019, as may be amended from time to time.

“ Qualified Institutional Investor ” means (i) Carveout Guarantor, (ii) New York City REIT, Inc., a Maryland corporation, or (iii) an entity which, as reasonably determined by Lender, satisfies the following conditions: (1) the proposed Transferee shall be a reputable institutional investor (such as a pension fund/plan, REIT, real estate operating company, insurance company, bank, or other financial institution) or a reputable developer, owner, or manager with adequate qualifications, operating and management experience, and creditworthiness of owning and managing first class, commercial real estate comparable to the Property in New York County, Queens County, or Kings County, New York; (2) the proposed Transferee and/or affiliate parent entity, just prior to the transfer and excluding the Property, has real estate assets with a current market value of at least $250,000,000 and a net worth of at least $100,000,000; (3) neither the proposed Transferee, nor any principal, partner, member, affiliate, parent, or any entity with more than a 20% beneficial ownership interest in the proposed Transferee, is (A) in monetary or material non-monetary default of any indebtedness, (B) involved in any loan workout, restructure, foreclosure, or deed in lieu of foreclosure, (C) involved in any litigation, investigations, indictments, or convictions of any civil or criminal activities or there are any outstanding convictions or money judgment(s) which in Lender’s sole and absolute discretion would have a materially adverse impact on the proposed Transferees’ financial condition or ability to repay the Loan; (4) the proposed Transferee shall be domiciled in the US and have principals, controlling entities, and/or officers that are citizens of the US; (5) compliance with any applicable provisions of the Bank Secrecy Act, the Foreign Corrupt Practices Act or the various sanctions programs administered by the Office of Foreign Assets Control; and (6) the proposed Transferee (including its Affiliates) not having a prior negative borrowing history.

“ Qualified Transferee ” shall refer to any transferee that meets Lender’s then current underwriting standards for new borrowers, including, but not limited to the proposed transferee’s (together with its Affiliates, sponsor’s and/or principals’): (i) creditworthiness, (ii) experience in owning, managing and operating properties similar to the Property; (iii) financial condition; (iv) compliance with any applicable provisions of the Bank Secrecy Act, the Foreign Corrupt Practices Act or the various sanctions programs administered by the Office of Foreign Assets Control ; and (v) not having a prior negative borrowing history .

“ Real Estate Taxes ” is defined in Section 4.3(a).

“ Real Property ” is defined in the Security Instrument.

“ Regulation U ” refers to §12 C.F.R. 221.

“ Rents ” is defined in the Security Instrument.

“ Replacement Guarantor ” is defined in Section 7.2(c).

“ Restoration ” is defined in Section 6.2(a).

“ Restoration Conditions ” is defined in Section 6.3(b).

“ Retail Unit 1 ” is defined in the Security Instrument.

“ Retail Unit 2 ” is defined in the Security Instrument.

“ Security Instrument ” means that certain Mortgage Modification, Consolidation, Extension, Security Agreement and Fixture Filing, dated as of the Closing Date, executed by Borrower in favor of Lender, securing Borrower’s obligations under the Note , this Agreement and the other Loan Documents and encumbering, among other things, the Property, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“ Security Property ” is defined in the Security Instrument.

“ Solvent ” shall mean, with respect to any Person on a particular date, that on such date (i) the fair value of the property of such Person is greater than the total amount of liabilities, including, without limitation, contingent liabilities, of such Person, (ii) the present fair market value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (iii) such Person is able to realize upon its assets and pay its debts and other liabilities, contingent liabilities and other commitments as they mature in the normal course of business, and (iv) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay such debts and liabilities as they mature.

“ State ” means the State of New York.

“ Taking ” is defined in Section 6.4(a).

“ Termination Fees ” means any and all fees, costs, expenses, unamortized costs or other consideration required to be paid, payable or paid by any tenant of any portion of the Property in order to terminate its lease, license or rental agreement, including any amounts paid in connection with termination or rejection of a Lease in a bankruptcy or other similar proceeding (including any claims, proofs of claims or other rights relating to the future right to receive payment of such amounts) and retention by Borrower of any security deposit or the proceeds of any letter of credit given as a security deposit following termination.

“ Transfer Conditions ” shall refer to all of the following conditions: (i) at the time such transfer becomes effective, no Event of Default exists (or any event that with notice or passage of time, or both, would constitute an Event of Default exists), (ii) upon completion of the transfer a Key Principal, if any, continues to own at least fifty one percent (51%) of all equity interests (directly or indirectly) in Borrower, (iii) subject to any transfer of direct or indirect ownership of Borrower to a Qualified Institutional Investor, upon completion of the transfer a Key Principal retains Control of Borrower, (iv) after giving effect to such transfer, no provisions of the Loan Documents (excluding Section 7.1 of this Agreement) shall have been violated, including, without limitation, Section 3.8 of this Agreement, and any other provisions of the Loan Documents relating to OFAC, Section 3.14 of this Agreement, and any other provisions of the Loan Documents relating to ERISA, and Section 4.11 of this Agreement, and any other provisions of the Loan Documents relating to any of the special purpose entity covenants or any matters contained therein), (v) the transfer (either singularly or in the aggregate with prior transfers) does not result in any Person as to which Lender has not undertaken its normal credit and/or regulatory review process including any background checks and procedures to satisfy such “know-your-customer” background checks and procedures (with satisfactory results) becoming an owner, directly or indirectly, of twenty five percent (25%) or more of the equity interests in Borrower; and (vi) prior to the consummation of any transfer, whether or not such transfer is completed (excluding transfers permitted pursuant to Section 7.2 unless otherwise expressly required by Section 7.2), (a) Borrower shall have reimbursed Lender for any and all reasonable out-of-pocket costs and expenses actually paid or incurred by Lender in connection with such transfer (including review of any documentation relating thereto), including, without limitation, attorneys’ fees; and (b) with respect to a transfer of Borrower’s interest in the Property or a transfer of equity interests resulting in a Person owning twenty-five percent (25%) or more of the equity interests (directly or indirectly) in Borrower, if required by Lender, Borrower shall have executed and delivered to Lender, and acknowledged, where required, such documents and instruments as Lender shall reasonably require, in form and substance reasonably satisfactory to Lender, including, with respect to any sale of the Property, such endorsements to Lender’s title insurance policy as Lender may reasonably require, at no cost to Lender. Additionally, (A) in the event that any transfer constitutes forty nine percent (49)% or less and twenty five percent (25%) or more of the direct or indirect ultimate beneficial ownership in Borrower, Borrower shall provide Lender with at least ten (10) days advance written notice of such transfer together with copies of all applicable assignment documents, and (B) Borrower shall provide Lender with an updated organizational chart and any amended organizational documents within ten (10) days following a Permitted Disposition pursuant to either Section 7.2(a)(i) or 7.2(b).

“ Transferee ” is defined in Section 7.2(c).

“ UETA ” is defined in Section 9.19.

“ Zoning Report ” means that certain Zoning Assessment prepared by Massey Consulting Group, dated March 11, 2019, Site Number 26108.

Article II

LOAN

2.1            The Loan . Subject to and upon the terms and conditions set forth herein, Lender has made and Borrower has accepted the Loan on the Closing Date in the Loan Amount. Any portion of the Loan borrowed and repaid hereunder may not be reborrowed. The foregoing will not be deemed to limit or restrict the disbursement to Borrower of any deposits, holdbacks, accounts, reserves or proceeds of insurance or Awards that are to be disbursed to Borrower under other provisions of this Agreement or the other Loan Documents. The Loan shall be evidenced by this Agreement, the Note and the other Loan Documents and shall be secured by the Security Instrument, the Assignment and the other Loan Documents.

2.2            Use of Proceeds . Borrower shall use the proceeds of the Loan disbursed to it (a) to pay to Lender the amounts due under the Loan Documents and (b) for Borrower’s general business purposes (including acquisition of Borrower’s interest in the Property or repayment of a previous financing arrangement, if applicable). The Loan is for business and commercial use and is not for personal, family or household purposes.

2.3            Payment Provisions.

(a)          Interest accrued on the unpaid principal balance of the Note from the date of disbursement to but not including August 1, 2019 (the “ Interim Interest Period ”) at the rate of 3.85% per annum (the “ Interest Rate ”), shall be due and payable on the disbursement date of the Loan. In the event that disbursement occurs on the first of the month, then there shall be no payment of interim interest and the first payment due from Borrower hereunder shall be in accordance with subsection (b) below.

(b)          Thereafter, monthly installments of interest only on the unpaid principal balance of the Note at the Interest Rate, shall be due and payable in 119 consecutive monthly installments commencing on September 1, 2019 and continuing on the first day of each calendar month thereafter (a “ Payment Date ”), with each such installment to be in the sum of $163,625.00, without deduction or set-off.

(c)          In the event the Loan is prepaid in part pursuant to Section 2.6 below, then the monthly installment amount shall be adjusted based upon the Interest Rate, interest-only payments, and the then-outstanding principal balance of the Loan after the application of such partial principal prepayment.

(d)          The unpaid principal balance of the Note, all accrued unpaid interest thereon (if not sooner paid), and all other amounts owing to Lender under the Loan Documents shall be due and payable in full on the Maturity Date.

2.4            Application of Payments . Each payment received by Lender with respect to the Note shall be applied: first, to the payment of any Prepayment Premium; second, to the payment of any Late Charge or other such Charges as provided in this Agreement or in the other Loan Documents; third, to the repayment of any amounts advanced by Lender in accordance with this Agreement or the other Loan Documents for insurance premiums, taxes, assessments, or for preservation or protection of the collateral covered by the Loan Documents (including all legal costs associated therewith); fourth, to the payment of accrued unpaid interest on the Note, and the balance, if any, shall be applied to the reduction of the outstanding principal balance of the Note (subject to the terms hereof), or in such other order or proportion of said obligations as Lender may determine. Interest due hereunder shall be calculated on the basis of a 360-day year (composed of twelve 30-day months) except the payment due under Section 2.3(a) above which shall be calculated on the actual number of days in the Interim Interest Period. All payments on the Loan shall be made by automated clearing house (ACH) auto-debit funds transfer initiated by Lender and/or its agents.

2.5            Late Payment Charge . If any principal, interest or any other sums due under the Loan Documents is not received by Lender by the later of (a) the Payment Date or (b) the date specified by applicable Law as the last date that must pass before Lender may legally charge a Late Charge, Borrower shall pay to Lender a Late Charge to defray the expense incurred by Lender in handling and processing such delinquent payment and to compensate Lender for the loss of the use of such delinquent payment. The Late Charge shall be due and payable on the next Payment Date thereafter, whether or not Lender shall have billed Borrower for such charges, or upon written demand if there shall be no succeeding Payment Date thereafter. Any such amount shall be secured by the Security Instrument and the other Loan Documents. Borrower acknowledges that the Late Charge is a fair and reasonable estimate, considering all of the circumstances existing on the date of execution of this Agreement, of the cost the Lender will incur by reason of such late payment. Notwithstanding the foregoing, in the event the Loan is not paid in full on the Maturity Date, a Late Charge will not be assessed on the principal balance of the Loan (provided, however, the foregoing shall in no event be construed to limit any of Lender’s rights or remedies available to it in such event, including, but not limited to assessment and collection of interest at the Default Rate).

2.6            Prepayment . Borrower shall not have the right to prepay all or any part of the Loan at any time except as expressly provided for herein. Borrower shall have the right to prepay, in full or in part, the Loan, at any time and from time to time but which right to prepay the Loan in part shall be limited to one time per Loan Year, provided that, as conditions precedent, Borrower: (i) gives Lender not less than thirty (30) days prior Notice of Borrower’s intention to prepay the Loan, which notice shall be revocable by Borrower; (ii) pays to Lender the Prepayment Premium, if any, then due and payable to Lender; and (iii) pays to Lender all other amounts then due under the Loan Documents. If the Loan is prepaid in part, then the applicable Prepayment Premium due shall only apply to the principal amount of the Loan being prepaid in part. If all or any portion of the Prepayment Premium calculation in this Section 2.6 and in the definition of Prepayment Premium shall be amended, altered, severed, voided or determined to be not enforceable by any court or other governmental entity, or if Borrower brings an action or raises as a defense to a suit brought by Lender that the Prepayment Premium is void and/or unenforceable, the entire voluntary prepayment privilege set forth in this Section 2.6 shall be deemed null and void, and of no further force and effect. Commencing on the Payment Date that is three months prior to the Maturity Date, provided no Event of Default then exists or the Loan has not been accelerated, Borrower may prepay the full outstanding principal balance of the Loan, at Par. If the prepayment of the Loan occurs on a date other than the Maturity Date, interest shall be calculated based upon the actual days including the day of prepayment.

2.7            Savings Clause; Severability . Notwithstanding anything in any of the Loan Documents to the contrary, if at any time the Interest Rate, together with all fees, charges, and other amounts that are treated as interest on the Loan under applicable Law (collectively the “ Charges ”), shall exceed the maximum lawful rate that may be contracted for, charged, taken, received or reserved by Lender in accordance with applicable Law, the Interest Rate, together with all Charges, shall be limited to the maximum lawful rate and, to the extent lawful, the interest and Charges that would have been payable but were not payable as a result of the operation of this Section 2.7 shall be cumulated and the interest and Charges payable to Lender in respect of other periods shall be increased (but not above the maximum lawful rate therefor) until such cumulated amount, together with interest thereon to the date of repayment, shall have been received by Lender. Any amount collected by Lender in excess of that which can be spread over the life of the Loan in accordance with this Section 2.7 shall be promptly refunded to Borrower and shall be deemed by the parties to never have been charged at all.

Article III

REPRESENTATIONS AND WARRANTIES

Borrower hereby unconditionally represents and warrants to Lender, as of the Closing Date, the following:

3.1            Existence, Power and Authority .

(a)           Borrower . Borrower is a duly organized, validly existing limited liability company, and is in good standing under the Laws of the State and the State of Delaware. Borrower’s U.S. Employer’s tax identification number is 83-4288786. To Borrower’s knowledge, Borrower is not in violation of any Laws relating to its structure, including, but not limited to, Federal securities laws, blue sky laws and other Laws, or the rules or regulations of the Securities and Exchange Commission. Borrower is duly authorized to execute and deliver the Loan Documents, all necessary action to authorize the execution and delivery of the Loan Documents has been properly taken, and Borrower is duly authorized to borrow under this Agreement and to perform all of the other terms and provisions of the Loan Documents and has full power and lawful authority to encumber and convey the Property pursuant to the terms of the Loan Documents. To Borrower’s knowledge, the execution of the Loan Documents will not violate, conflict with, breach, or constitute (with notice or lapse of time, or both) a default under any Law, order or judgment of any court, Governmental Authority, or the Governing Documents (as defined below) of Borrower, or any indenture, agreement, or other instrument to which Borrower is a party or by which it or any of its property is bound or affected, and will not result in the creation or imposition of any Lien upon any of its properties or assets except for those in the Loan Documents.

(b)           Manager . Manager is a duly organized, validly existing limited partnership, in good standing under the Laws of the State of Delaware. Manager’s U.S. Employer’s tax identification number is 80-0967273. To Borrower’s knowledge, Manager is not in violation (in any material respects) of any Laws relating to its structure, including, but not limited to, Federal securities laws, blue sky laws and other Laws, or the rules or regulations of the Securities and Exchange Commission. To Borrower’s knowledge, Manager is duly authorized to execute and deliver the Loan Documents, all necessary action to authorize the execution and delivery of the Loan Documents has been properly taken, and Manager is duly authorized to execute documents in connection with the Loan.

3.2            Purchase Options . To Borrower’s knowledge, except as set forth in that certain NRSU Undertaking Agreement, dated as of July 17, 2019, by and between Borrower and MB-REEC HOUSTON PROPERTY OWNER LLC, a Delaware limited liability company (the “ NRSU Undertaking Agreement ”) with respect to the NRSU (as defined in the NRSU Undertaking Agreement), no Person has any outstanding exercisable rights with respect to the purchase or sale of any portion of the Property, including, without limitation, any right of first offer or refusal, or purchase option.

3.3            Status of the Property

(a)           Flood Zone . The Real Property is not located in an area identified by the Secretary of Housing and Urban Development, the Federal Emergency Management Agency or a successor thereto as an area having special flood hazards pursuant to the terms of the National Flood Insurance Act of 1968, or the Flood Disaster Protection Act of 1973, as amended, or any successor Law.

(b)           Utilities . The Property is served by all public utilities in adequate supply required for its Existing Use.

(c)           Casualty . The Property is free from material damage caused by fire, flood, explosion, environmental spill or any other casualty.

(d)           Access . All streets necessary to serve the Real Property have been completed, are serviceable, are legally open, and Borrower has unrestricted access from public roads to the Real Property and the Improvements.

(e)           Condemnation . To Borrower’s knowledge, there is no condemnation or similar proceeding pending or threatened (in writing) affecting any part of the Property.

(f)           Accessibility . To Borrower’s knowledge, the Property complies with the accessibility requirements of The Fair Housing Act of 1988 (if applicable), The Americans with Disabilities Act, 42 U.S.C.A. § 121.01 et seq . (the “ ADA ”), and the regulations thereunder promulgated by the U.S. Architectural and Transportation Barriers Compliance Board (36 C.F.R. § 1191 et seq .) and by the U.S. Department of Justice (28 C.F.R. Part 36), including, without limitation, the ADA Accessibility Guidelines for Buildings and Facilities attached as an appendix to said regulations (together, the “ Accessibility Laws ”).

(g)           Environmental . Except as disclosed in the Environmental Report, the Property is not in violation of any Environmental Law relating to conditions in, on, under or about the Property including but not limited to soil and groundwater conditions to which exposure is prohibited, limited or regulated by any such Environmental Law and neither Borrower nor, to Borrower’s Knowledge, any third party has used, generated, manufactured, stored or disposed of in, on, under or about the Property or transported to or from the Property any Hazardous Substances.

(h)           Licenses; Permits; Zoning . Except with respect to those certain building code violations identified in the Zoning Report, Borrower (or the Condominium Board or tenant under the applicable Lease, as the case may be) has all necessary (i) certificates, licenses, and other approvals, governmental or otherwise, for the operation of the Property and the conduct of its business; and (ii) zoning, building, code, land use, environmental and other similar permits or approvals, all of which are currently in full force and effect and not subject to revocation, suspension, forfeiture or modification.

(i)           Plans and Specifications . Borrower is not in possession of the plans and specifications for the Property.

(j)           Miscellaneous Property Diligence . There are no service contracts related to the Property (to which Borrower is a party) not terminable within thirty (30) days. Borrower is in possession of no tangible personal property related to the Property.

3.4            No Misrepresentations .

(a)          All materials, reports, Financial Statements, leasing certifications, and other written information pertaining to the Borrower Parties and the Property which were or are prepared by the Borrower Parties (and/or their Affiliates) and delivered by, or on behalf of, the Borrower Parties to Lender, are true, correct and complete in all material respects.

(b)          All materials, reports, Financial Statements and other written information pertaining to the Borrower Parties and the Property which were prepared by third parties unaffiliated with the Borrower Parties (as required by Lender or as to such matters Lender determines appropriate for the Borrower Parties to engage third parties to provide the same) and delivered to Lender and any of the Borrower Parties (and/or their Affiliates) are, to Borrower’s Knowledge (after having reviewed such materials, reports, Financial Statements and other information), true, correct and complete in all material respects.

(c)          None of the Loan Documents contains any untrue statement of material fact or omits or will omit to state a material fact necessary in order to make the statements contained in this Agreement or the other Loan Documents not materially misleading.

3.5            No Material Adverse Change . Since the date of the execution of the Application no Material Adverse Change has occurred, and to Borrower’s Knowledge, there is no fact which would reasonably be expected to have a Material Adverse Effect and which has not otherwise been fully set forth in this Agreement or in the other Loan Documents.

3.6            No Defaults, Violations or Offsets .

(a)          There are no Events of Default under this Agreement or, to Borrower’s Knowledge, any material defaults or violations by Borrower of or under any of the terms, conditions or obligations of: (i) its partnership agreement if Borrower is a partnership, its articles or certificate of incorporation, regulations or bylaws if Borrower is a corporation, its operating agreement or certificate of organization if Borrower is a limited liability company, or its other organizational documents, as applicable (collectively, the “ Governing Documents ”); (ii) any indenture, mortgage, deed of trust, franchise, permit, contract, agreement, or other instrument to which it is a party or by which it is bound; or (iii) any Law, ruling, order, injunction, decree, condition or other requirement applicable to or imposed upon it by any Law, the action of any court or any Governmental Authority.

(b)          There are no set-offs, defenses or counterclaims to the payment of the Loan.

3.7            Litigation . There are no actions, suits, proceedings or governmental investigations pending or, to Borrower’s Knowledge, threatened (in writing) against the Borrower Parties and there is no basis, to Borrower’s Knowledge, for any action, suit, proceeding or investigation which, in either case, would be reasonably expected to result in a Material Adverse Change. As used in this Section, “action, suit, proceeding or governmental investigation” means any demand, claim notice, suit, suit in equity, action, administrative action, investigation or inquiry whether brought by a Governmental Authority or other Person.

3.8            Bank Secrecy Act, the Foreign Corrupt Practices Act, OFAC .

(a)          Borrower and each Person(s) owning an interest in Borrower is (i) not identified on the Specially Designated Nationals and Blocked Persons List maintained by the Office of Foreign Assets Control (“ OFAC ”) and/or on any other similar list maintained by OFAC pursuant to any authorizing statute, executive order or regulation, (ii) not a Person(s) with whom a citizen of the United States is prohibited to engage in transactions by any trade embargo, economic sanction, or other prohibition of United States Law or Executive Order of the President of the United States; and (iii) in compliance with any applicable provisions of the Bank Secrecy Act, the Foreign Corrupt Practices Act or the various sanctions programs administered by OFAC;

(b)          None of the funds or other assets of Borrower constitute property of, or are or will be beneficially owned, directly or indirectly, by any Embargoed Person;

(c)          No Embargoed Person has any interest of any nature whatsoever in Borrower (whether directly or indirectly);

(d)          None of the funds of Borrower have been derived from any unlawful activity with the result that the investment in Borrower is prohibited by Law or that the Loan Documents are in or will be in violation of Law,

(e)          Borrower has implemented procedures, and has consistently and will continue to consistently apply those procedures, to ensure the foregoing representations and warranties remain true and correct at all times; and

(f)          Borrower has complied, and will continue to comply, with all requirements of Law relating to money laundering, anti-terrorism, trade embargos and economic sanctions, now or hereafter in effect.

3.9            Tax Returns . Borrower has filed all returns and reports that are required to be filed by it in connection with any federal, state or local tax, duty or charge levied, assessed or imposed upon it or its property or withheld by it, including income, unemployment, social security and similar taxes, and all of such taxes have been either paid or adequate reserve or other provision has been made therefor.

3.10          Environmental Matters . Except as disclosed in the Environmental Report, to Borrower’s Knowledge, Borrower is in compliance, in all respects, with all Environmental Laws, including, without limitation, all Environmental Laws in jurisdictions in which Borrower owns or operates, or has owned or operated, a facility or site, stores Security Property, arranges or has arranged for disposal or treatment of Hazardous Substances, solid waste or other waste, accepts or has accepted for transport any Hazardous Substances, solid waste or other wastes or holds or has held any interest in real property or otherwise. Except as otherwise disclosed to Lender, no litigation or proceeding arising under, relating to or in connection with any Environmental Law is pending or, to Borrower’s Knowledge, threatened against Borrower, any real property which Borrower holds or has held an interest or any past or present operation of Borrower. No release or disposal of Hazardous Substances is occurring, or to Borrower’s Knowledge has occurred, on, under or to any real property in which Borrower holds or has held any interest or performs or has performed any of its operations, in violation of any Environmental Law. As used in this Section, “litigation or proceeding” means any demand, claim notice, suit, suit in equity, action, administrative action, investigation or inquiry whether brought by a Governmental Authority or other Person.

3.11          Intellectual Property . To the extent applicable, Borrower owns or is licensed to use all patents, patent rights, trademarks, trade names, service marks, copyrights, intellectual property, technology, know-how and processes necessary for the conduct of its business as currently conducted that are material to the condition (financial or otherwise), business or operations of Borrower.

3.12          Regulatory Matters . No part of the proceeds of the Loan will be used for “purchasing” or “carrying” any “margin stock” within the respective meanings of each of the quoted terms under Regulation U as now and from time to time in effect or for any purpose which violates the provisions of the regulations of the Board of Governors of the Federal Reserve System.

3.13          Solvency . As of the date hereof and after giving effect to the transactions contemplated by the Loan Documents the Borrower will be Solvent.

3.14          ERISA . (a) Borrower is not an “employee benefit plan” as defined in Section 3(3) of Employee Retirement Income Security Act of 1974, as amended (“ ERISA ”), which is subject to Title I of ERISA, or a “governmental plan” within the meaning of Section 3(32) of ERISA; (b) Borrower is not subject to state statutes regulating investments and fiduciary obligations with respect to governmental plans; and (c) one or more of the following circumstances is true: (i) Equity interests in Borrower are publicly offered securities within the meaning of 29 C.F.R. § 2510.3-101(b)(2); (ii) Less than twenty-five percent (25%) of each outstanding class of equity interests in Borrower are held by “benefit plan investors” within the meaning of 29 C.F.R. § 2510.3-101(f)(2); or (iii) Borrower qualifies as an “operating company” or a “real estate operating company” within the meaning of 29 C.F.R. § 2510.3-101(c) or an investment company registered under The Investment Company Act of 1940. Borrower shall deliver to Lender such certifications or other evidence from time to time throughout the term of the Loan, as requested by Lender, certifying to Lender that the representation and warranties contained in this Section are true, correct and complete in all material respects.

3.15          Condominium .

(a)          The Condominium is governed by the Condominium Documents and, to Borrower’s Knowledge, there are no other written agreements governing the affairs of the Condominium.

(b)          As of the Closing Date, no Association has been incorporated for the Condominium, and the board of the Condominium has the status of an unincorporated association for the Condominium.

(c)          There are no outstanding unpaid assessments, fines or other charges due and owing by Borrower under the Condominium Documents.

(d)          Each of the Units (as defined in the Security Instrument) is a tax parcel (with a separate tax lot number) separate from the other Condominium units and from any other real property.

3.16          Survival of Representations . The representations and warranties of Borrower set forth in this Article III , elsewhere in this Agreement, in the other Loan Documents and in the Indemnity Agreement shall survive for so long as the Indebtedness has not been fully paid, the Obligations have not been fully satisfied and there has been no voluntary release and/or reconveyance of the Security Instrument; provided, however, that the representations and warranties set forth in the Indemnity Agreement shall survive as stated therein. All representations, warranties, covenants and agreements made in this Agreement or in the other Loan Documents by Borrower shall be deemed to have been relied upon by Lender notwithstanding any investigation hereafter made by Lender or on its behalf. Borrower will immediately notify Lender in writing if any of the representations, warranties or covenants are no longer true or have been breached or if Borrower has a reasonable basis to believe that they may no longer be true or have been breached. In addition, Borrower will, at the request of Lender, provide such information as may be reasonably requested by Lender to determine Borrower’s compliance with the terms hereof.

Article IV

AFFIRMATIVE COVENANTS

Borrower hereby unconditionally covenants and agrees with Lender, until the Indebtedness has been indefeasibly paid in full and the Obligations have been indefeasibly paid, fully performed and discharged (excluding any Obligations which expressly survive repayment of the Indebtedness and release of the Security Instrument) , as follows:

4.1            Payment and Performance of Obligations . Borrower shall timely pay the Indebtedness and perform or cause to be performed the Obligations pursuant to the terms of this Agreement.

4.2            Continuation of Existence and Authority . Borrower will maintain in good standing its existence, franchises, rights and privileges under the Laws of the State of Delaware and its rights to transact business in the State, including its right to borrow under this Agreement and perform all of its other terms and provisions of the Loan Documents, and will not dissolve, terminate or otherwise dispose, directly or indirectly or by operation of law, of all or substantially all of its assets or change its legal structure from a limited liability company organized under the State of Delaware.

4.3            Taxes and Other Charges .

(a)           Payment . Borrower will duly pay and discharge, or cause to be paid and discharged, not later than the earliest to occur of (i) the due date thereof; (ii) the date any fine, penalty, interest or cost may be added thereto or imposed; and (iii) the date prior to any date any Lien may be filed for the nonpayment thereof (if such date is used to determine the due date of the respective item) all (A) general taxes, special taxes, assessments (including assessments for benefits from public works or improvements whenever begun or completed) (the “ Real Estate Taxes ”) , utility charges, water charges, sewer service charges, common area maintenance charges, if any, vault or space charges and all other like charges against or affecting the Property or against any property or equipment located on the Property, or which might become a Lien on the Property; (B) income taxes, franchise taxes, and other taxes owing by Borrower the non-payment of which would result in a Lien against the Property or otherwise diminish or impair the security of the Security Instrument; (C) any stamp taxes which may be required to be paid in connection with the Security Instrument; and (D) all taxes (excluding income taxes and/or franchise taxes of Lender), charges, filing, registration, and recording fees, excises and levies imposed upon Lender by reason of or in connection with the execution, delivery and/or recording of the Loan Documents or the ownership of the Security Instrument or any Security Instrument supplemental hereto, any security instrument with respect to any equipment or any instrument of further assurance, and all corporate, stamp and other taxes required to be paid in connection with the Loan (collectively, the “ Impositions ”). Borrower will also pay any penalty, interest or cost for non-payment of Impositions which may become due and payable, and such penalties, interest or cost shall be included within the term Impositions. Unless Borrower is required to make monthly deposits pursuant to this Agreement or any other Loan Document, Borrower shall deliver official receipts evidencing the payment of all Impositions to Lender not later than thirty (30) days following the payment of the same.

(b)           Monthly Deposits . In order to assure compliance with Borrower’s obligations pursuant to Section 4.3 and Section 6.1, Borrower shall deposit with Lender, together with and in addition to each monthly payment due on account of the Loan, an amount equal to one-twelfth of the annual total of such Real Estate Taxes and insurance premiums (all as estimated by Lender) so that, at least thirty (30) days prior to the due date thereof, Lender shall be able to pay in full all such Real Estate Taxes and insurance premiums. Lender may hold the sums so deposited without paying interest, commingle same with its general funds and/or apply the same to the payment of Real Estate Taxes and insurance premiums. If at any time the funds held by Lender are insufficient to pay such Real Estate Taxes and insurance premiums, Borrower shall immediately, upon Notice and demand by Lender, deposit with Lender the amount of such deficiency. If Borrower fails to make timely payments pursuant to the terms of Section 4.3(a) above, Lender, at Lender’s sole option, shall have the right to make such payments pursuant to the terms of this Agreement (and, so long as Borrower has deposited with Lender the funds necessary to make such payments in full prior to the due date thereof, Lender’s failure to make such payments shall not constitute a default on the part of Borrower hereunder). Upon and following the occurrence of an Event of Default, Lender may, at Lender’s sole option but without an obligation so to do, apply any funds held pursuant to the terms of this Section 4.3(b) toward the payment of the Indebtedness, notwithstanding the fact that the amount owing thereon may not then be due and payable or that the Indebtedness may otherwise be adequately secured, in such order and manner of application as Lender may elect.

(c)           Contests . Borrower may contest (or permit to be contested), in good faith and in accordance with applicable Laws and procedures, the proposed assessment of Real Estate Taxes by Governmental Authorities having jurisdiction over the Property; provided, however, Borrower shall give Notice of its intent to bring such an action to Lender. Any such contest, however, shall not relieve Borrower of its obligation to pay all Impositions in full, and Lender may require Borrower to post a bond or other collateral satisfactory to Lender (and acceptable to the title company insuring the Security Instrument to insure over any Lien described in this Section 4.3(c)) as a result of Borrower’s act.

4.4            Lien Priority . Borrower will protect and preserve the first lien and security interest status of the Security Instrument, subject to any Permitted Encumbrances existing as of the Closing Date.

4.5            Property Maintenance and Management .

(a)          Subject to (x) the terms of the Condominium Documents (and the rights and obligations of the Condominium Board thereunder) and (y) the terms of the Leases and the rights and obligations of the tenants thereunder, Borrower will (i) operate and maintain the Property in good order, repair and operating condition, ordinary wear and tear excepted and shall not commit or negligently permit any misuse or physical waste thereof; (ii) promptly make all necessary repairs, renewals, replacements, and improvements thereto, necessary to insure that the same as part of the security for the Security Instrument shall not in any way be diminished or impaired; (iii) replace fixtures and personal property as and when appropriate with fixtures or personal property comparable thereto when new; (iv) maintain all utilities required for the Existing Use; and (v) make such repairs as Lender may reasonably require, and from time to time make all needful and proper replacements so that the Improvements, Fixtures and Security Property shall at all times be in good condition, fit and proper for the respective purposes for which they were originally erected or installed. Borrower shall only use contractors who are properly licensed, who carry workers’ compensation insurance and appropriate liability insurance, who generally have a good reputation for completing their work in a neat, prompt and workmanlike manner, and use only new or re-manufactured goods of a quality as good or better than that originally used on the Property in connection with any work at the Property. In order to assure compliance with Borrower’s obligations pursuant to Section 4.5(a), Borrower or its parent company, on behalf of Borrower, shall maintain commercially reasonable operating reserves and such funds may only be used to pay for costs incurred in connection with this Section 4.5(a).

(b)          Subject to (x) the terms of the Condominium Documents (and the rights and obligations of the Condominium Board thereunder) and (y) the terms of the Leases and the rights and obligations of the tenants thereunder, Borrower will maintain all necessary certificates, licenses, authorizations, registrations, permits and/or approvals necessary for the operation of all or any part of the Property, and the occupancy and use of the Property, including, where appropriate, a permanent certificate of occupancy and all required zoning ordinance, building code, land use, environmental and other similar permits or approvals, all of which as of the date hereof are in full force and effect and not subject to any revocation, amendment, release, suspension or forfeiture.

(c)          Subject to the terms of the Condominium Documents (and the rights and obligations of the Condominium Board thereunder), Borrower shall maintain all curbs, drives and parking areas existing at the Property as of the Closing Date, if any, and Borrower shall maintain at all times a number of parking spaces equal to or greater than the greatest of (i) the number required by any Laws or any governmental body, agency or authority having jurisdiction over Borrower or the Property, and (ii) the number (if any) required by the terms of all Leases.

(d)          The initial manager of the Property shall be New York City Properties, LLC, a Delaware limited liability company, an Affiliate of Borrower. In the event that Borrower desires to replace the initial manager after the Closing Date, Borrower shall submit a written request to Lender for prior approval, which approval shall not be unreasonably withheld, conditioned or delayed; provided, however, that Lender shall be deemed to have approved such request if the replacement manager is Cushman & Wakefield, JLL, Newmark Knight Frank, or CBRE. Any leasing agent of the Property, if other than Borrower or the foregoing party, shall be first approved in writing by Lender. The maximum property management fee shall be five percent (5%) of gross rentals at the Property. Borrower shall employ all property management or leasing agents pursuant to agreement(s) reasonably acceptable to Lender until the Indebtedness has been paid in full and the Obligations have been fully satisfied; provided, however, if the Property is managed by the Borrower a written agreement shall not be required. Any such agreement is hereby assigned to Lender and the rights of the manager and leasing agent thereunder shall be subordinated to the Lien of the Security Instrument and such manager and leasing agent shall consent to such subordination and assignment upon request from Lender. If any change of management or termination or modification of any such agreement occurs without Lender’s prior written approval, it shall constitute an Event of Default.

(e)          Borrower shall cause the Property to remain separately assessed for real estate tax purposes as a separate tax lot or lots.

4.6            Compliance with Laws and OFAC . Borrower shall perform and promptly comply with, and cause the Property to be maintained, used and operated in accordance with, any and all (a) present and future Laws, (b) applicable orders, rules and regulations of any regulatory, licensing, accrediting, or rating organization or other body exercising similar functions, (c) applicable duties or obligations of any kind imposed under any Permitted Encumbrance or otherwise by Law, covenant, condition, agreement or easement, public or private, and (d) policies of insurance or the rules and regulations of any insurance underwriting or rating organization, at any time in force with respect to the Property. Borrower shall promptly provide Lender with a copy of any notice Borrower receives indicating that Borrower is in default of any of the foregoing or that the Property is not in compliance with any Laws. Borrower shall comply with Section 3.8 until the Indebtedness has been paid in full.

4.7            Property Reports .

(a)           Books and Records . Borrower will maintain complete and accurate books and records showing in detail the income and expenses of the Property, and from time to time upon request by Lender, will permit Lender and its agents, contractors or representatives to examine said books and records and all supporting vouchers and data during normal business hours and upon reasonable prior written notice, in such place as such books and records are customarily kept.

(b)           Annual Reporting Requirement . Borrower and Guarantor shall furnish to Lender annual certified Financial Statements, including operating statements for the Property, income statements and balance sheets for Borrower, Guarantor, the Property and all Major Tenants (if required to be delivered to Borrower (subject to any confidentiality requirements) under their respective Leases or otherwise received by Borrower), within one hundred twenty (120) days of the end of their respective fiscal year(s). These statements shall: (i) be in form reasonably acceptable to Lender, (ii) be prepared in accordance with generally accepted accounting principles consistently applied , (iii) include a rent roll certified as true and correct by Borrower or an authorized representative of Borrower, and (iv) include the most current annual sales figures for the Property and all Major Tenants (if applicable and required to be delivered to Borrower (subject to any confidentiality requirements) under their respective Leases or if they are otherwise received by Borrower). These statements for Borrower, Guarantor and the Property shall be certified as true and correct by Borrower or an authorized representative of Borrower and by any Guarantor, respectively. In the event Borrower fails to provide such statements to Lender within the time prescribed above, Borrower shall pay Lender the sum of Two Hundred and NO/100 Dollars ($200.00) in administrative expenses for each successive month or partial month beyond the one hundred twenty (120) day period set forth above for which the statements are delinquent.

(c)           Lender Request . At the request of Lender, but under no circumstances more often than once a calendar quarter (provided no Event of Default has occurred under the Loan Documents), Borrower shall furnish to Lender within fifteen (15) days of such request (so long as same is sixty (60) days or more after the end of such calendar quarter): (i) unaudited Financial Statements (balance sheet, income statement, operating statements and current rent roll) covering the operation of the Property for periods other than those set forth in Section 4.7(b) above, (ii) unaudited Financial Statements (balance sheets and income statements) for Borrower, Guarantor, their general partner(s), shareholder(s) or member(s) (whichever may be applicable), and for such other principals of Borrower as designated by Lender, (iii) a portfolio analysis showing annualized cash flow statements (including debt service payments) for all real properties owned by Borrower, its general partner(s), shareholder(s) or member (s) (whichever is applicable), and for such designated principals, (iv) a current rent roll for the Property, and (v) an operating budget for the current fiscal year and after October 31 ^st of each calendar year an operating budget for the following fiscal year. All such statements and rent rolls shall be certified to Lender to be complete, correct, and accurate by the individual for an individual’s statements or by an authorized representative of the entity if the statements are for a partnership, corporation or limited liability company or other such entity. Notwithstanding the foregoing, during the existence of an Event of Default under the Loan Documents, Lender shall have the right to require additional audited financial statements, including operating statements for the Property, income statements and balance sheets for Borrower, Guarantor, the Property and all Major Tenants, certified by a certified public accountant approved by Lender, the cost of which shall be paid by Borrower.

4.8            Borrower’s Estoppel Certificate . Within ten (10) days after Lender’s request, Borrower shall furnish to Lender a written statement, certifying to Lender or to Lender’s designee as to: (a) the amount of the Indebtedness then owing under the Loan Documents; (b) the terms of payment and Maturity Date of the Indebtedness; (c) the date to which interest has been paid under the Loan; (d) whether any offsets or defenses exist against the Indebtedness or Obligations and, if any are alleged to exist, a reasonably detailed description thereof; (e) that all Leases for the Property are in full force and effect and have not been modified (or if modified, setting forth all modifications); (f) the date to which the Rents, under such Leases have been paid; (g) whether or not, to Borrower’s Knowledge, any of the tenants under such Leases are in default under such Leases, and, if any of the tenants are in default, setting forth the specific nature of all such defaults; and (h) any other matters reasonably requested by Lender.

4.9            Additional Reporting Requirements . Borrower shall provide prompt Notice to Lender of the occurrence of any of the following (together with a description of the action which Borrower proposes to take with respect thereto): (a) any Event of Default or any event, act or condition which, with the passage of time or the giving of notice, or both, would constitute an Event of Default, (b) any litigation filed by or against Borrower or any proceedings before any Governmental Authority or arbitrator involving or affecting Borrower or the Property, and (c) any Reportable Event or Prohibited Transaction with respect to any Employee Benefit Plan(s) (as all such terms are defined in ERISA), or (d) any event which would reasonably be expected to have a Material Adverse Effect.

4.10          Compliance with Loan Documents; Further Assurances .

(a)          Borrower shall, and shall cause Guarantor and other Borrower Parties (as applicable) to observe, perform and satisfy in a timely manner all the terms, provisions, covenants, conditions, duties and obligations required to be observed, performed or satisfied by them, and shall pay when due all costs, fees and expenses required to be paid by them, under and pursuant to this Agreement, and the other Loan Documents.

(b)          At Borrower’s sole cost and expense, Borrower shall promptly (i) cure, or cause to be cured, any defects in the execution and delivery of the Loan Documents, and (ii) execute and deliver, or cause to be executed and delivered, all such other documents, agreements and instruments as Lender may reasonably request to further evidence and more fully describe the collateral for the Indebtedness, to correct any omissions or errors in the Loan Documents, to perfect, protect or preserve any Liens created under any of the Loan Documents, or to make any recordings, file any notices, or obtain any consents, as may be necessary or appropriate in connection therewith; provided, however, that Borrower, except in the case of manifest error, shall not be required to execute and deliver any documents, agreements and/or instruments which increase Borrower’s obligations and/or liabilities under the Loan Documents or decrease Borrower’s rights under the Loan Documents, in each case, beyond a de minimis extent.

(c)          If Borrower changes its name, place of business, or jurisdiction of organization pursuant to Section 5.4, Borrower shall deliver to Lender all UCC financing statements and amendments as Lender shall request and shall take all other actions deemed necessary by Lender to continue its perfected first priority lien status in the Security Property.

(d)          Borrower shall not raise as a defense to the payment of the Loan that there exists set-offs, defenses (except for the defense of payment or performance) or counterclaims, except to the extent such defense is permitted or provided by the usury Laws of the State.

4.11          Special Purpose Entity; Separateness .

(a)          Borrower hereby covenants, until such time as the Indebtedness is fully and finally paid, Borrower shall not:

(i)          change or permit to be changed its Governing Documents, if such change would materially and adversely impact the covenants set forth in this Agreement or otherwise violate any prohibited transfer or due on sale provisions set forth in the Loan Documents;

(ii)         fail to qualify to do business and remain in good standing under the Laws of the state in which it was formed and the State, or fail to observe all material corporate formalities;

(iii)        engage in any line of business or other activity other than (1) acquiring, owning, operating, leasing, managing and disposing of the Property (and activities incidental thereto), (2) entering into the Loan, and (3) any and all lawful activities incidental, necessary and appropriate thereto;

(iv)         acquire or own any assets other than (1) the Property, and (2) such incidental personal property as may be necessary for the operation of the Property or the conduct of its business as contemplated herein;

(v)          merge into or consolidate with any Person, or dissolve, terminate, liquidate in whole or in part, or change its legal structure;

(vi)         transfer or otherwise dispose of all or substantially all of its assets, or engage in any transfer of assets outside the ordinary course of its business;

(vii)        form, acquire, hold or own any subsidiary, or make any investment in any Person (including the acquisition of obligations or securities of its Affiliates or acquisition of evidence of indebtedness issued by any other Person (other than cash and investment-grade securities));

(viii)      commingle its assets with the assets of any other Person;

(ix)         incur any debt, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than (1) the Loan; (2) trade and operational indebtedness incurred in the ordinary course of business with trade creditors, provided such indebtedness is (A) unsecured, (B) not evidenced by a note, (C) on commercially reasonable terms and conditions, and (D) due not more than ninety ( 90 ) days past the date incurred and paid on or prior to such date, provided, further, that at no time shall the aggregate outstanding balance of the permitted debt specified in (2) above exceeds $100,000.00;

(x)          fail to maintain its records, books of account, bank accounts, Financial Statements, accounting records and other entity documents separate and apart from those of any other Person or have its assets listed on the Financial Statement of any other entity; provided , however, that Borrower’s financial position, assets, liabilities, net worth and operating results may be included in the consolidated Financial Statements of an Affiliate so long as Borrower’s assets are listed on Borrower’s own separate balance sheet and that any such consolidated Financial Statements contain a footnote indicating that Borrower is a separate legal entity, that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate, and that Borrower maintains separate books and records;

(xi)         enter into any contract or agreement with any Affiliate except upon terms and conditions that are intrinsically fair, commercially reasonable and substantially similar to those that would be available on an arm’s-length basis with unaffiliated third parties;

(xii)        maintain its assets in such a manner that it will be costly or difficult to segregate, ascertain or identify its individual assets from those of any other Person;

(xiii)      assume or guaranty or otherwise become obligated for the debts of any other Person, hold itself out to be responsible for the debts of any other Person, or otherwise pledge its assets for the benefit of any other Person (other than to Lender to secure the Loan) or hold out its credit as being available to satisfy the obligations of any other Person;

(xiv)        make any loans or advances to any Person;

(xv)         fail to file its own tax returns (unless Borrower is a tax-disregarded entity not required to file tax returns under applicable Law) or file a consolidated federal income tax return with any Person (unless prohibited or required, as the case may be, by applicable Laws);

(xvi)        fail either to hold itself out to the public as a legal entity separate and distinct from any other Person (including identifying itself as a division or part of any other Person), or to conduct its business solely in its own name (including the failure to use separate stationery, invoices and checks bearing its own name) or fail to correct any known misunderstanding regarding its separate identity;

(xvii)      fail to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations (including the failure to remain Solvent or pay its own expenses and liabilities (including salaries of its own employees) only from its own funds); provided, however: (1) the failure of any (direct or indirect) member of, principal of or investor in Borrower to contribute additional capital to Borrower shall not constitute a breach of this subsection (xvii) during any period in which the Property experiences negative cash flow unless, without first paying operating expenses, debt service, maintaining commercially reasonable reserves, and all other amounts required the Loan Documents, Borrower (x) commits a default under Section 5.10 hereof, or (y) fails to turn over to Lender Rents received by Borrower after revocation of the license to receive Rents; and (2) a reduction of the market value of the Property (not caused by the acts and/or omissions of Borrower or its agents) below the outstanding Indebtedness shall not constitute a breach of this subsection (xvii);

(xviii)     without the prior unanimous consent of all of Borrower’s members or partners, as applicable, and the prior unanimous consent of all the direct owners of Borrower’s general partner or managing member, as applicable, (1) elect to dissolve or liquidate, or permit its general partner or manager to elect to dissolve or liquidate, its business organization or wind up its business affairs; (2) consent, or allow its general partner or manager to consent, to the appointment of a receiver, trustee or liquidator of all or a substantial part of its assets; (3) be adjudicated as bankrupt or insolvent, or file a voluntary petition in bankruptcy, or admit in writing its inability to pay its debts as they become due; (4) make a general assignment for the benefit of creditors; (5) file a petition under or take advantage of any insolvency Law; (6) file an answer admitting the material allegations of a petition filed against Borrower or Guarantor or any such respective general partner or managing member of Borrower or Guarantor in any bankruptcy, reorganization or insolvency proceeding or petition or request for the appointment of a receiver, or fail to cause the dismissal of such petition within thirty (30) days after the filing of said petition; or (7) take action for the purpose of effecting any of the foregoing; or

(xix)        fail to fairly and reasonably allocate expenses that are shared with an Affiliate (including for shared office space and for services performed by an employee of an Affiliate) among the Persons sharing such expenses.

(b)          The Governing Documents of Borrower shall at all times materially comply with each of the representations, warranties, covenants, and provisions set forth in Section 4.11(a).

4.12          Leases and Possessory Estates .

(a)           Leasing . Borrower shall use all commercially reasonable efforts to lease and keep all of the Improvements fully leased. Any and all such Leases must comply with the provisions hereof. Upon Lender’s request, Borrower shall deliver to Lender a true, complete and correct copy of all Leases. As of the Closing Date, Lender has received from Borrower the Leases described in Schedule A attached hereto. Borrower shall not amend, modify, permit an assignment or sublease , supplement, terminate, cancel or rescind any Lease after the execution thereof without the prior written consent of Lender, except such consent shall not be required for such actions as to Leases not with Major Tenants that are taken in accordance with normal and prudent property management practices. Additionally, Borrower shall not, without the prior written consent of Lender, (i) request or consent to the subordination of any Lease to any Lien subordinate to the Security Instrument; or ( ii ) exercise any right to relocate any tenant outside the Property pursuant to any right set forth in a Lease. Nothing contained in this Agreement shall impose an obligation on Borrower to prevent any tenants under their respective Leases from engaging in any activities expressly permitted pursuant to the terms of such Leases, provided that such Leases existed as of the Closing Date or were entered into in accordance with the terms of this Agreement.

(b)           Lease Form . Except for Leases otherwise approved in writing by Lender, Borrower shall only execute Leases on the form of tenant lease approved by Lender as part of the underwriting of the Loan (the “ Form Lease ”) or as may be approved by Lender thereafter. Borrower shall not, without the prior written consent of Lender, which may be granted or withheld in Lender’s sole reasonable discretion, amend, modify or alter the Form Lease and Borrower shall reimburse Lender any of its costs and expenses, including reasonable attorneys’ fees, for the review of the Form Lease, including any proposed revisions thereto, or for the review of proposed Leases, any extensions, modifications and amendments to Leases. If Borrower requests Lender to review and/or execute any non-disturbance and attornment agreements with future tenants of the Property (as applicable), Lender will only enter into such agreements which are on Lender’s then-current standard form of such agreement. Any other form or changes to Lender’s then-current standard form submitted by Borrower or tenant are subject to Lender’s review, and shall be subject to payment by Borrower of Lender’s reasonable actual out-of-pocket legal fees (internal or external counsel) . Borrower shall utilize the Form Lease in leasing all or any part of the Improvements and all Leases must (i) be at competitive market rents; (ii) have lease terms of not less than three (3) years and (iii) contain a written provision acceptable to Lender whereby all rights of the tenant under the Lease are subordinated to the Liens granted in the Loan Documents or may be made superior to the lien of the Security Instrument at Lender’s option. Notwithstanding the foregoing, Borrower may make modifications to the Form Lease as may be required or necessary in order to maintain compliance with applicable Law and negotiate changes to the Form Lease with prospective tenants provided such changes are commercially reasonable, negotiated in the ordinary course of business of owning and operating the Property in a prudent and sound businesslike manner and otherwise consistent with normal and prudent property management practices. Borrower shall not enter into any future Major Tenant Lease without obtaining Lender’s prior written consent and Borrower shall notify Lender in writing of all prospective Major Tenants, and shall deliver to Lender, at Borrower’s sole cost and expense, a copy of the prospective Major Tenant’s current financial statement, if required by such Major Tenant’s respective lease or otherwise provided to Borrower (subject to any confidentiality requirements), and the most recent Dun & Bradstreet credit report (if available) on said prospective Major Tenant. The financial statement delivered to Lender pursuant to this Section 4.12(b) shall be certified as true and correct by the Major Tenant or, if available, by a certified public accountant. Notwithstanding the foregoing, if Lender fails to approve or disapprove a new Lease (or modification to an existing Lease) with a Major Tenant pursuant a request to approve such Lease within ten (10) Business Days after the final (negotiated) version of the Lease (including all exhibits), a current rent roll for the Property, the most current quarterly operating statement for the Property and all tenant credit information has been delivered and received by Lender, clearly marked “Lease Review – Time Sensitive Response Required” , Borrower shall send a second notice by way of certified mail or overnight courier clearly marked in the same fashion. If after five (5) Business Days from receipt of the second notice, Lender has not approved or disapproved same, the Lease shall be deemed approved by Lender. If all of the required information was not provided initially or additional information is reasonably required by Lender to render a decision on the Lease, the time to respond will commence upon Lender’s receipt of all reasonably required information.

(c)           Performance . Borrower shall (i) duly and punctually perform and comply with any and all material covenants and agreements which are binding on the landlord under any Lease; (ii) enforce, short of termination, the performance by each tenant under its respective Lease of all of said tenant’s obligations thereunder; (iii) appear and provide appropriate defense, with reasonable diligence, in any action or proceeding in any way connected with any Lease; and (iv) deliver to Lender such further information, and execute and deliver to Lender such further assurances, assignments, and confirmations of Lender’s rights under the Loan Documents with respect to the Leases and Rents as Lender may reasonably request. Without Lender’s prior written consent, Borrower shall not (A) do or knowingly permit to be done anything to impair the value of any of the Leases; (B) except for security or similar deposits, collect any Rents or other payments due under any of the Leases more than one (1) month in advance of the time when the same becomes due under the terms of any Lease; (C) except as expressly provided in the Leases, discount any future Rents or other payments due under any of the Leases; or (D) assign or grant a security interest in or to any of the Leases or any Rents due thereunder, other than in accordance with the terms, provisions, or obligations contained in the Loan Documents. Borrower shall notify Lender in writing of any default (of which Borrower has actual knowledge) under any Lease. Lender shall have the right, but not the obligation, at its sole option, upon the occurrence of any default by Borrower under any Lease, to pay any sum required or perform any obligation required to cure such default and Borrower shall repay on demand any and all such amounts incurred by Lender, including interest on such amount at the Default Rate.

(d)           Estoppel Certificates . Borrower shall deliver to Lender, upon request, tenant estoppel certificates from each commercial lessee at the Property in form and substance reasonably satisfactory to Lender, including, if applicable, the form of estoppel certificate for a particular tenant that was accepted by Lender on or prior to the Closing Date (provided, however, that Borrower shall not be required to deliver such certificates more frequently than one time in any calendar year unless a default then exists under the Loan Documents).

(e)           Termination Fees . Borrower shall deposit all Termination Fees from Major Tenants and those in excess of One Hundred Thousand and NO/ 100 Dollars ($100,000.00) (whether or not Lender’s consent to such termination is required) into a cash collateral account controlled by Lender and use such Termination Fees to retrofit or build out the applicable premises for a new tenant(s) under terms and conditions reasonably satisfactory to Lender. Any excess or unused Termination Fees deposited shall be released to Borrower upon the earlier of (i) completing the re-leasing and build-out of replacement tenant space(s) provided that (A) any/all replacement leases aggregate to an annual rental income equal to or greater than the then-current annual rental income for the terminated tenant(s) at the time of the termination, or (B) the then loan-to-value ratio of the Loan given effect to any and all replacement tenant(s) is equal to or less than 50% as reasonably determined by Lender; or (ii) full payment and satisfaction of the Loan and all of Borrower’s and Carveout Guarantor’s obligations under the Loan Documents. If an Event of Default exists under the Loan Documents or if (i) or (ii) above have not been satisfied as determined by Lender in its sole discretion , all Termination Fees shall be delivered to Lender and Lender may apply the Termination Fees, including any Termination Fees held in a cash collateral account, in such order and manner of application as Lender may elect (notwithstanding the fact that the amount owing thereon may not then be due and payable or that the Indebtedness may otherwise be adequately secured) .

(f)           Miscellaneous Licenses, Leases and other Possessory Estates . Notwithstanding anything in this Agreement to the contrary, and subject to the terms of the Condominium Declaration and the rights of any tenants under their respective Leases, Borrower shall not grant any Person any possessory interest wherein such Person shall have the right to attach to any exterior portion of the Improvements or on any portion of the Real Property telecommunication, renewable energy or similar equipment, including, but not limited to: satellite dishes, antennas, cable routers, solar panels, wind turbines, etc. unless such equipment is solely providing service to the Property.

4.13          Miscellaneous Property Agreements . Borrower shall duly and punctually perform and comply in all material respects with any and all covenants and written agreements which are binding on the Borrower under any deed, sublease, or other form of conveyance, or any other agreement pursuant to which Borrower grants or is granted a possessory interest in the Property.

Article V

NEGATIVE COVENANTS

Borrower hereby unconditionally covenants and agrees with Lender, until the Indebtedness has been paid in full and the Obligations have been paid, fully performed and discharged, as follows:

5.1            Use Violations . Borrower will not use, maintain, operate or occupy, or allow the use, maintenance, operation or occupancy of, the Property in any manner which (a) violates any Laws; (b) may be dangerous, unless safeguarded as required by Law and/or appropriate insurance; (c) constitutes a public or private nuisance; or (d) makes void, voidable or cancellable, or increases the premium of, any insurance then in force with respect thereto.

5.2            Waste . Borrower will not commit or negligently permit any physical waste or impairment of the Property, ordinary wear and tear excepted.

5.3            No Disposition . Except for Permitted Dispositions, neither Borrower nor any legal or beneficial owner of Borrower will make a Disposition without obtaining Lender’s prior written consent to the Disposition.

5.4            Change of Name or Address . Borrower shall not change its name, identity, principal places of business or its jurisdiction of organization without obtaining Lender’s prior written consent to such change. Borrower shall bear all out-of-pocket costs actually incurred by Lender in connection with any such change including, without limitation, reasonable attorneys’ fees.

5.5            ERISA . Borrower shall not engage in any transaction which would cause any obligation, or action taken or to be taken, hereunder (or the exercise by Lender of any of its rights under this Agreement and the other Loan Documents) to be a non-exempt (under a statutory or administrative class exemption) prohibited transaction under ERISA or result in a violation of a state statute regulating governmental plans.

5.6            Zoning . Subject to (x) the terms of the Condominium Documents (and the rights and obligations of the Condominium Board thereunder) with respect to any Common Elements (as defined in the Condominium Documents) and (y) the terms of the Leases and the rights of the tenants thereunder, Borrower will not (a) initiate, support or acquiesce in any zoning reclassification of the Property, seek any variance under existing zoning ordinances applicable to the Property or use or permit the use of the Property in a manner which would result in such use becoming a non-conforming use under applicable zoning ordinances; (b) modify, amend or supplement any of the Permitted Encumbrances; (c) impose any restrictive covenants or encumbrances upon the Property, or execute or file any subdivision plat affecting the Property, or consent to the annexation of the Property to any municipality; (d) permit or suffer the Property to be used by the public or any Person in such manner as would make possible a colorable claim of adverse usage or possession or of any implied dedication or easement; (e) take any actions which results in the Property no longer being separately assessed for real property tax purposes as a separate tax lot or lots; (f) assign, transfer or in any manner change any certificates, licenses, authorizations, registrations, permits and/or approvals without first receiving the written consent of Lender; or (g) consent to the formation of any owner/tenant association or road improvement district affecting the Property.

5.7            Mineral Rights . Borrower agrees that the making of any oil, gas or mineral lease, or the sale or conveyance of any mineral interest or right to explore for minerals under, through or upon the Property, would impair the value of the Property and Borrower will not permit any drilling or exploration for or extraction, removal or production of any minerals from the surface or the sub-surface of the Real Property regardless of the depth thereof or the method of mining or extraction thereof. Borrower shall have no right, power or authority to lease the Property, or any part thereof, for oil, gas or other mineral purposes, or to grant, assign or convey any mineral interest of any nature, or the right to explore for oil, gas and other minerals, without first obtaining Lender’s express written permission therefor. Whether or not Lender shall consent to such Lease or grant of mineral rights, Lender shall receive the entire consideration to be paid for any such Lease or grant of mineral rights, with the same to be applied to the Loan notwithstanding the fact that the amount owing thereon may not then be due and payable or that the Loan is otherwise adequately secured. The acceptance of such consideration shall in no way impair the Lien of the Security Instrument on the Property or cure any existing Event of Default.

5.8          Alteration, Removal, Building and Change in Use of Property . Subject to (x) the terms of the Condominium Documents (and the rights and obligations of the Condominium Board thereunder) with respect to the Common Elements and (y) the terms of the Leases and the rights and obligations of the tenants thereunder (it being agreed and acknowledged that Lender shall not have any consent rights with respect to any alterations or other matters described in this Section 5.8 to the extent such alterations or other matters are permitted under the terms of the Condominium Documents and/or applicable Leases without Borrower consent), Borrower will not permit the following without the prior written consent of Lender, which consent shall not be unreasonably withheld: (a) any structural alteration of, or addition to, the Improvements now or hereafter situated upon the Real Property, or the addition of any new buildings or other structure(s) thereto, other than (i) the erection or removal of non-load bearing interior walls or alterations required by the terms of Leases which have been approved by Lender or which are not subject to Lender’s review, comment and approval, or (ii) making other immaterial alterations or improvements to the Property consistent with the ownership and operation relating to the Existing Use or otherwise as approved in writing by Lender; (b) the removal, transfer, sale or lease of the Fixtures and Security Property, except that the renewal, replacement or substitution of broken, obsolete or worn out Fixtures and Security Property may be made in the normal course of business as long as replacement or substituted items are of like or better quality, value and utility as the removed items were in their original condition; (c) building or constructing upon any portion of the Property, any building, structure or improvement of any kind whatsoever, the building or construction of which has not been previously approved by Lender in writing, which approval shall be at the discretion of Lender; and (d) the use of any of the Improvements now or hereafter situated on the Real Property for any purpose other than the Existing Use and related facilities.

5.9          Liens, Charges and Encumbrances . Borrower will not permit to be created or to exist in respect of the Property or any part thereof any Lien on parity with, superior to or inferior to any of the Liens of the Loan Documents, except for the Permitted Encumbrances. Upon the creation of any Lien on the Property other than a Permitted Encumbrance, including without limitation a Lien resulting from or arising out of a breach of a Permitted Encumbrance, Borrower shall promptly (but not less than forty-five (45) days after written notice of such Lien is sent to Borrower by Lender, which forty-five (45) day period shall be tolled if Borrower is contesting such Lien in good faith) pay or otherwise discharge all lawful claims and demands of mechanics, materialmen, laborers, realtors, brokers and others which if unpaid, might result in, or permit the creation of, a Lien, charge or encumbrance upon the Property or any part thereof, or on the Rents, arising therefrom. Notwithstanding the foregoing and provided no Event of Default has occurred and is continuing, Borrower may contest (or permit to be contested), at no expense to Lender, by appropriate legal proceedings promptly initiated and conducted with due diligence, in accordance with all applicable statutes, laws, and ordinances, mechanics’, materialmen’s and other such Liens filed against the Property in accordance with the terms hereof. Borrower shall give Notice to Lender of its intent to bring such action and Lender may, in Lender’s discretion, require Borrower to either: (i) post a bond or other collateral satisfactory to Lender (and acceptable to the title company insuring the Security Instrument to insure over any Lien described in this Section 5.9); or (ii) provide Lender with a cash deposit in an amount necessary to pay any and all costs associated with having the Lien released, which deposit may be used by Lender to satisfy any Lien described in this Section 5.9 (in the event Borrower is unsuccessful contesting such Lien) within a period of ten (10) Business Days after written notice is sent to Borrower requiring the posting of the bond or other collateral. Upon a final, non-appealable adverse determination of such Lien, Borrower shall have a period of five (5) Business Days to pay all amounts secured by such Lien and provide Lender with evidence such Lien has been released.

5.10        Distributions . Borrower will not make any distributions with respect to any class of its equity or ownership interest; provided, however, that Borrower may make distributions so long as:  (i) there exists no monetary Event of Default under the Loan Documents and Borrower has not received notice of a monetary default under the Loan Documents from Lender that Borrower has not cured to Lender’s satisfaction, (ii) Borrower shall, after giving effect to any such distribution, continue to be in compliance with the terms and conditions of the Loan Documents, including without limitation Sections 4.11 hereof, and (iii) by making such distribution, Borrower shall be deemed to have remade the representation in Section 3.13 of this Agreement to be effective after giving effect to such distribution.

5.11        Controlled Substances.

(a)           Management of Leases and Property . Borrower shall not engage in any Drug-Related Activities and shall prohibit any use or occupancy of the Property for Drug-Related Activities. Without limiting the generality of the foregoing, Borrower shall (i) not enter into, consent to or permit any Lease which allows Drug-Related Activities at the Property, (ii) expressly prohibit in all Leases (and expressly include such prohibition in its Form Lease) any Controlled Substances Use and Drug-Related Activities on any portion of the Property, (iii) establish commercially reasonable background checks and verification procedures to verify that prospective tenants (and any guarantors of such Leases) are not engaged in Drug-Related Activities. To the extent Borrower should nonetheless become aware of any Drug-Related Activities occurring at the Property or of any of the principals of any tenant under any Lease at the Property being involved in Drug-Related Activities (whether at the Property or elsewhere) Borrower shall immediately provide notice of such information to Lender. Nothing contained herein or in Section 5.11(b) shall preclude Borrower or any tenant or occupant of the Property in engaging in the sale, creation, production, manufacture, storage, distribution, possession or handling of any Controlled Substances in accordance with all applicable federal laws and State laws.

(b)           Payments to Lender . Borrower shall not make any payments to Lender from funds derived from Drug-Related Activities.

(c)           Supersedes Local Law . The provisions of this Section 5.11 are intended and shall apply notwithstanding any state or local law permitting the Controlled Substances Uses or Drug-Related Activities.

5.12        Condominium .

(a)          Borrower shall not, without Lender’s prior review and written consent (which may be granted or withheld in Lender’s sole discretion), permit (i) any amendment of any of the Condominium Documents that would require the consent of Borrower and would materially and adversely affect Borrower’s rights as owner of the Property or Lender’s rights as mortgagee, (ii) [intentionally omitted]; (iii) any changes to the boundaries of, or parking associated with, the Real Property or any of the Common Elements (as defined in the Condominium Declaration) associated with the Real Property; (iv) any action to be taken under the Condominium Documents that would materially inhibit the free access to and from the Real Property (including access to the Common Elements), or (v) the Condominium Board to make material repairs, replacements, additions or alterations to the Common Elements (as defined in the Declaration) except to the extent consistent with Section 5.8 hereof.

(b)          Borrower shall not vote in favor of (or acquiesce to) the termination of the Condominium or dissolution of the Association for any reason without Lender’s prior review and written consent (which may be granted or withheld in Lender’s sole discretion).

(c)          Borrower shall not submit the Property, or permit the Property to be submitted to, any condominium regime other than the Condominium without Lender’s prior review and written consent, which may be granted or denied in Lender’s sole and absolute discretion.

(d)          None of Borrower or any of Borrower’s Affiliates shall permit the adoption of any Condominium rules without Lender’s prior review and written consent, which may be granted or denied in Lender’s sole and absolute discretion, and, if adopted, shall not thereafter permit any amendment of such rules that would adversely affect Borrower’s rights as owner of the Property or Lender’s rights as mortgagee without Lender's prior review and written consent, which may be granted or denied in Lender’s sole and absolute discretion.

(e)          Borrower shall not violate, nor permit the Property to violate, any of the terms, conditions, provisions and covenants contained in the Condominium Documents.

Article VI

INSURANCE, CASUALTY, CONDEMNATION

6.1         Insurance.

(a)           Required Coverages . At Borrower’s sole cost and expense, Borrower shall maintain or caused to be maintained, in full force and effect on the Property until the Indebtedness has been paid in full and all Obligations have been fully performed and completed, the following insurance:

(i)            Property . Special form (extended coverage all risk) property insurance insuring all Improvements, Appurtenances, Fixtures and Security Property that now are or hereafter become a part of the Property from all losses or damages resulting from fire, windstorm, flood (if required), sinkhole, earthquake (if required), mine subsidence, acts of terrorism (subject to Section 6.1(a)(viii)), and such other hazards, casualties, contingencies and perils as may be required by Lender and would be customarily required by other institutional mortgage lenders originating loans on properties similar to the Property or that is otherwise commercially reasonable or required by Law, in an amount equal to the full replacement cost thereof (without taking into account any depreciation);

(ii)           Liability . Commercial general liability insurance in an adequate amount as may from time to time be required by Lender and would be customarily required by other institutional mortgage lenders originating loans on properties similar to the Property or that is otherwise commercially reasonable or required by Law, taking into consideration the type of property being insured and the corresponding liability exposure, on forms, with deductibles, and in amounts as may be acceptable to Lender;

(iii)          Components . Comprehensive boiler and machinery insurance (without exclusion for explosion), if applicable, in amounts as shall be reasonably required by Lender and covering all boilers or other pressure vessels, machinery and equipment located at or about the Property (including, without limitation, electrical equipment, sprinkler systems, heating and air conditioning equipment, refrigeration equipment and piping);

(iv)          Flood . Insurance covering loss by flood (if at any time during the term of the Loan the Improvements are shown to lie wholly or partially within a Special Flood Hazard Area as designated on the Federal Emergency Management Agency’s Maps , or any other flood prone area) in an amount equal to the full replacement cost of the Improvements or such other amount that is customarily required by other institutional mortgage lenders originating loans on properties similar to the Property, that is otherwise commercially reasonably or that is otherwise required by Law;

(v)           Rent Loss . Business Income coverage in an amount that is equal to the greater of (a) eighteen (18) months of actual loss sustained, or (b) one year’s debt service plus operating expenses.

(vi)          Builder’s Risk . During any period of construction or restoration of the Property, a policy or policies of builder’s risk coverage written on a completed value basis insuring against such risks (including, without limitation, fire and extended coverage, collapse of the Property to agreed limits) as Lender may reasonably request, in form and substance reasonably acceptable to Lender;

(vii)         Worker’s Compensation . At any time Borrower has an employee, a policy or policies of workers’ compensation insurance as required by workers’ compensation insurance laws subject to the statutory limits of the State in respect of any work or other operations on, about or in connection with the Property and covering all employees of Borrower and employer’s liability insurance coverage of not less than $1,000,000;

(viii)        Terrorism . Insurance covering losses resulting from acts of terrorism;

(ix)          Law & Ordinance . A policy or policies providing “Ordinance or Law Coverage” or “Enforcement” endorsements in amounts that are customarily required by other institutional mortgage lenders originating loans on properties similar to the Property, are otherwise commercially reasonably or are otherwise required by Law, if any of the Improvements or the use of the Property shall at any time constitute legal non-conforming structures or uses or the ability to rebuild the Improvements is restricted or prohibited; and

(x)           Earthquake . If applicable, a policy or policies of earthquake insurance with a deductible in an amount acceptable to Lender.

(b)           General Requirements . All insurance policies shall (i) be with insurers licensed to do business in the State and who have and maintain a rating of at least A:X or better from AM Best’s Insurance Guide; (ii) contain the complete address of the Property (or a complete legal description); (iii) be for a term of at least one (1) year; (iv) contain deductibles no greater than $25,000 for Special Form or All Risk property insurance coverage, except no greater than five percent (5%) TIV for Wind, Hail, and if required Earthquake, or as otherwise required by Lender; and (v) be subject to the approval of Lender as to insurance companies, amounts, content, forms of policies, method by which premiums are paid and expiration dates. Borrower shall as of the date hereof deliver to Lender evidence that said insurance policies have been paid current as of the date hereof and evidence of insurance shall be provided in the form of declaration pages and/or policy endorsements, and certified copies of such insurance policies, if required, signed by an authorized agent evidencing such insurance satisfactory to Lender (“ Evidence of Insurance ”). Borrower shall renew all such insurance and deliver to Lender the Evidence of Insurance for such renewals at least five (5) Business Days before any such insurance shall expire. Evidence of Insurance for any such renewal policy can be in the form of an insurance binder, with the policy of said insurance to follow on or before the expiration date of such insurance binder. Without limiting the required endorsements to insurance policies, Borrower further agrees that all such policies shall provide that proceeds thereunder shall be payable directly to Lender, its successors and assigns, pursuant and subject to a Non-Contributory Standard Lender Clause and a Lender’s Loss Payable Endorsement or an equivalent if approved by Lender, or otherwise made a part of such policy in favor of Lender, and that Lender, its successors and assigns, shall be named as an additional insured under all liability insurance policies. Borrower further agrees that all such insurance policies: (A) shall provide for at least thirty (30) days’ prior Notice to Lender prior to any cancellation or termination thereof (except that only ten (10) days’ prior Notice shall be required for cancellation due to the non-payment of premiums); and (B) shall contain an endorsement or agreement by the insurer that any loss shall be payable to Lender in accordance with the terms of such policy notwithstanding any act or negligence of Borrower which might otherwise result in forfeiture of such insurance.

(c)           Effect . The delivery to Lender of the Evidence of Insurance, as provided above shall constitute an assignment of all proceeds payable under such insurance policies by Borrower to Lender as further security for the Loan. In the event of foreclosure of the Security Instrument, or other transfer of title to the Property in extinguishment in whole or in part of the Indebtedness, all right, title and interest of Borrower in and to all proceeds payable under such policies then in force concerning the Property shall thereupon vest in the purchaser at such foreclosure, or in Lender or other Transferee in the event of such other transfer of title; provided, however, that the insurance policies shall not be assigned, other than to mortgagee, without the insurer’s approval. Approval of any insurance by Lender shall not be a representation of the solvency of any insurer or the sufficiency of any amount of insurance.

(d)           Remedial Rights . In the event Borrower fails to provide, maintain, keep in force or deliver and furnish to Lender the Evidence of Insurance required by this Agreement or evidence of their renewal as required herein, Lender may, but shall not be obligated to, procure such insurance and Borrower shall pay all amounts advanced by Lender, together with interest thereon at the Default Rate from and after the date advanced by Lender until actually repaid by Borrower, promptly upon demand by Lender. Any amounts so advanced by Lender, together with interest thereon, shall be secured by the Security Instrument and by all of the other Loan Documents securing all or any part of the Indebtedness. Lender shall not be responsible for nor incur any liability for the insolvency of the insurer or other failure of the insurer to perform, even though Lender has caused the insurance to be placed with the insurer after failure of Borrower to furnish such insurance.

6.2          Borrower’s Casualty Obligations .

(a)           General Requirements . In the event of any damage to or loss or destruction of the Property (“ Casualty ”), Borrower shall: (i) promptly notify Lender of such event and take such steps as shall be necessary to preserve any undamaged portion of the Property, (ii) promptly pay all required insurance deductibles, and (iii) subject to the terms hereof and the terms of the Condominium Documents (and the respective rights and obligations of the Condominium Board and any unit owners thereunder), promptly commence and diligently pursue to completion (taking into account the time necessary to adjust the loss, obtain permits and enter into restoration contracts) the restoration, replacement and rebuilding of the Property, as nearly as possible to their value, condition and character immediately prior to the Casualty (collectively, the “ Restoration ”); provided, however, in the event Lender applies the insurance proceeds to the Indebtedness, pursuant to Section 6.3, Borrower shall have no obligation to commence the Restoration. The Restoration shall be completed in a good and workmanlike manner, in accordance with all applicable Laws, and with other provisions for the preservation of the security hereunder reasonably established by Lender, including, the Restoration Conditions (as defined below).

(b)           Settlement . Borrower may settle and adjust all insurance claims up to Five Hundred Thousand and NO/00 Dollars ($500,000.00) directly with the insurance company without the prior consent of Lender and the net proceeds will be disbursed to Borrower for the Restoration subject to the following: (i) no Event of Default then exists, (ii) Borrower uses the proceeds of any claim for the Restoration, (iii) local building and zoning Laws allow the Property to be rebuilt to its condition prior to the Casualty and for the Existing Use, and (iv) the claim is settled on or before the date that is one hundred eighty days (180) after the date of any such Casualty. Any such proceeds that are not promptly utilized for Restoration shall be applied against the Indebtedness, in the order and manner determined by Lender (provided that to the extent that any Indebtedness shall remain outstanding after such application, such unpaid Indebtedness shall continue in full force and effect and Borrower shall not be excused in the payment thereof).

6.3          Lender’s Rights .

(a)           Insured Casualty . In the event of any Casualty which is covered, in whole or in part, by insurance described in Section 6.1 or any other insurance maintained by Borrower with respect to the Property, then:

(i)           Except as expressly provided in Section 6.2(b), Lender shall have the right to, but shall not be obligated to, make proof of loss if not made promptly by Borrower, and is hereby authorized and empowered by Borrower to settle, adjust or compromise any claims for damage, loss or destruction thereunder. Unless an Event of Default then exists under the Loan Documents, Lender shall consult with Borrower (but shall not be required to obtain Borrower’s consent) regarding any such settlement, adjustment or compromise;

(ii)          Each insurance company concerned is hereby authorized and directed to make payment therefor directly to Lender; and

(iii)         Borrower or Lender, as the case may be, shall apply the insurance proceeds, first, to reimburse Lender for all actual out-of-pocket costs and expenses, including, without limitation, adjustors’ and reasonable attorneys’ fees and disbursements, incurred in connection with the collection of such proceeds, and, second, at Lender’s option, (A) in payment of all or any part of the Indebtedness, at Par (so long as no Event of Default then exists) in the order and manner determined by Lender (provided that to the extent that any Indebtedness shall remain outstanding after such application, such unpaid Indebtedness shall continue in full force and effect and Borrower shall not be excused in the payment thereof); (B) to the cure of any default hereunder; or (C) to the Restoration, in whole or in part, of the portion of the Property so damaged, lost or destroyed, provided, that, in the opinion and discretion of Lender, either: (1) the insurance proceeds so collected are sufficient to cover the cost of the Restoration or repair of the damage or destruction with respect to which such proceeds were paid; or (2) the insurance proceeds so collected are not sufficient alone to cover the cost of the Restoration or repair but are sufficient therefor when taken together with funds provided and made available, and deposited into cash collateral account controlled by Lender, by Borrower from other sources. In the event Lender shall make such insurance proceeds available to Borrower, subject to the Restoration Conditions, for the purpose of effecting such Restoration, Lender shall not be obligated to see to the proper application of such insurance proceeds nor shall the amount of funds so released or used be deemed to be payment of or on account of the Loan. Lender shall have sole and exclusive dominion and control over such proceeds.

(iv)         If Lender elects to apply the insurance proceeds to the Indebtedness and such proceeds are insufficient to pay the Indebtedness in full, Lender may declare the remaining unpaid Indebtedness to be immediately due and payable in full, at Par.

(b)           Release of Proceeds . Notwithstanding the foregoing, and provided no default then exists under the Loan Documents (provided Borrower shall have the right to cure such default within any applicable cure period), in the event of loss or damage to the Property by fire, earthquake, other catastrophe or event for which insurance has been maintained by Borrower, and the amount of such loss or damage does not exceed twenty-five percent (25%) of the outstanding principal balance of the Loan and does not result in any spill, seepage, discharge, emission or other release of any Hazardous Substances at or about the Property which materially adversely affects the marketability of title to the Property, or the usability, potential for development or market value of the Property, any of the Leases or the Rents (as reasonably determined by Lender), Lender hereby agrees to allow the proceeds of insurance to be used for the Restoration and to release such insurance proceeds to Borrower as the Restoration progresses, subject to the following conditions (collectively, the “ Restoration Conditions ”):

(i)           the Improvements shall be at least eighty percent (80%) leased after Restoration pursuant to Leases that have tenants in occupancy and paying rent pursuant to their respective Lease, more than twelve ( 12 ) months of term remaining following the estimated completion of the Restoration and been approved in writing by Lender (if approval is required under the terms of the Loan Documents);

(ii)          the Restoration shall be completed in accordance with the terms hereof no later than ninety (90) days prior to the Maturity Date;

(iii)         the plans and specifications for the Restoration shall have been approved in writing by Lender in advance;

(iv)         at all times during the Restoration, Borrower has deposited with Lender funds which, when added to the insurance proceeds received by Lender, are sufficient to complete the Restoration in accordance with the approved plans and specifications, and all applicable building codes, zoning ordinances, regulations and Laws, and the funds on deposit with Lender are sufficient to complete the Restoration of the Property as certified to Lender by an inspecting architect/engineer reasonably approved by Lender and Borrower;

(v)          Borrower provides suitable completion, payment and performance bonds, and builders’ all risk insurance in such amounts, with such deductibles and upon such other terms and conditions as are acceptable to Lender, together with all necessary licenses and permits for such Restoration in form and amount acceptable to Lender;

(vi)         Lender shall have the option, upon the completion of the Restoration of the Property, to apply any surplus insurance proceeds remaining after the completion of the Restoration to the reduction, at Par, of the outstanding principal balance of the Note, notwithstanding the fact that the amount owing thereon may not then be due and payable or that said Loan is otherwise adequately secured;

(vii)        the insurance proceeds and any other funds held by Lender shall be disbursed by Lender no more often than once per quarter and in amounts of not less than $50,000 each, except the final disbursement may be in an amount less than $50,000;

(viii)       Lender’s obligation to make any such disbursement shall be conditioned upon Lender’s receipt of written certification from Lender’s inspecting architect/engineer (whose fees shall be reimbursed to Lender by Borrower) that all construction and work for which such disbursement is requested has been completed in accordance with the approved plans and specifications and in accordance with all applicable building codes, zoning ordinances and all other Laws and, further, that Borrower has deposited with Lender sufficient funds to complete such Restoration; and

(ix)          Lender shall be entitled to require and to impose such other conditions to the release of such funds as would be customarily required and imposed by institutional mortgage lenders or that are otherwise commercially reasonable.

Borrower’s failure to timely commence Restoration and diligently pursue the completion thereof, subject to the Restoration Conditions, will constitute an Event of Default under the Loan Documents, provided that, it shall not be an Event of Default if the Condominium Board fails to restore any of the Common Elements, or a Tenant fails to restore its premises to the extent it is obligated to do so under its Lease, so long as Borrower has used commercially reasonable efforts to enforce the Condominium Documents and/or the applicable Lease in order to enforce the Condominium Board’s, or such Tenant’s, obligations under the Condominium Documents and/or such Leases. Furthermore, Borrower’s misappropriation of the insurance proceeds received directly from the insurance company shall trigger recourse liability pursuant to Section 10.1(c) of this Agreement.

6.4          Condemnation .

(a)           Borrower’s Obligations; Proceedings . Borrower covenants and agrees to provide Lender with immediate Notice of any actual or threatened (in writing) commencement of any proceedings under eminent domain, including, but not limited to any taking by eminent domain, recovery for inverse condemnation or by deed in lieu thereof, whether permanent or temporary, of all or any part of the Property including any easement or any appurtenance thereto, including any change in grade of any right of way, street, or public place (collectively, a “ Taking ”) and to deliver to Lender copies of any and all papers served to Borrower in connection with any Taking. Lender may participate in any such proceedings, at Borrower’s sole cost and expense, and Borrower from time to time will execute and deliver to Lender all instruments reasonably requested by Lender or as may be required to permit such participation. Borrower shall, at its expense, diligently prosecute any such proceedings and shall consult and cooperate with Lender, its attorneys and agents, in the carrying on and defense of any such proceedings. No settlement of any such proceeding shall be made by Borrower without Lender’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed.

(b)           Lender’s Rights to Awards . All Taking proceeds, including awards or proceeds of sale in lieu of condemnation, and all judgments, decrees and awards for injury or damage to the Property (an “ Award ” or “ Awards ”) that are received by or made payable to Borrower are hereby assigned and shall be paid to Lender. Borrower shall execute and deliver to Lender, at any time, upon request, free, clear and discharged of any encumbrance of any kind whatsoever, any further assignments and/or other instruments deemed reasonably necessary by Lender for the purpose of validly and sufficiently assigning Awards made to Lender (including the assignment of any Award from the United States government at any time after the allowance of the claim therefor, the ascertainment of the amount thereof and the issuance of the warrant for payment thereof). Notwithstanding the foregoing, if no Event of Default then exists, in the event any Awards are equal to or less than $500,000.00, Borrower shall be entitled to receive the proceeds for Restoration, or to the extent such proceeds are not promptly utilized for Restoration, for application against the Indebtedness, in the order and manner determined by Lender (provided that to the extent that any Indebtedness shall remain outstanding after such application, such unpaid Indebtedness shall continue in full force and effect and Borrower shall not be excused in the payment thereof) .

(c)           Application of Awards . Lender shall have the right to apply any Awards as follows: first, to reimburse Lender for all actual out-of-pocket costs and expenses, including, without limitation, reasonable attorney’s fees incurred in connection with such Taking, and, second, at Lender ’ s option, (i) in payment of all or any part of the Indebtedness, at Par (so long as no Event of Default then exists), in the order and manner determined by Lender (provided that to the extent that any Indebtedness shall remain outstanding after such application, such unpaid Indebtedness shall continue in full force and effect and Borrower shall not be excused in the payment thereof); (ii) to the cure of any default hereunder; or (iii) to the Restoration, in whole or in part, of the portion of the Property remaining after the Taking; provided, however, Lender shall hold said Awards without any allowance of interest, and make the same available to restore, replace and rebuild the Property, as nearly as possible to its value, condition and character immediately prior to the Taking if such Taking does not result in the following, as determined by Lender, in Lender’s discretion: (A) a Material Adverse Change, (B) a violation of any Laws (including any zoning ordinances), or (C) a default under any Lease . In the event that Lender elects to make the Awards available to reimburse Borrower for the cost of the Restoration of the Improvements on the Real Property, such proceeds shall be made available in the manner and under the same conditions as required under Section 6.3(b). In the event Lender applies such Awards to the reduction of the outstanding Loan or if any surplus remains out of the Award after payment of such cost of Restoration, such amounts shall be applied on account of the Loan at Par, so long as no Event of Default then exists (notwithstanding the fact that the amount owing thereon may not then be due and payable or that the Loan may otherwise be adequately secured). If the Taking results in a Material Adverse Change, as determined by Lender, and Lender elects to apply the Awards to the Indebtedness and such proceeds are insufficient to pay the Indebtedness in full Lender may declare the remaining unpaid Indebtedness to be immediately due and payable in full, at Par.

Borrower’s failure to timely commence Restoration following a Taking and diligently pursue the completion thereof, subject to the terms hereof, will constitute an Event of Default under the Loan Documents. Furthermore, Borrower’s misappropriation of the Award received directly from the condemning authority in violation of Section 6.4(b) above shall trigger recourse liability pursuant to Section 10.1(c) of this Agreement.

Article VII

TRANSFERS AND DISPOSITIONS

7.1          Transfers and Dispositions . Except for Permitted Encumbrances and the Permitted Dispositions described in Sections 7.2 and 7.4, and any involuntary Taking or Taking consented to by Lenders to the extent Lender’s consent is required by this Agreement, it shall be an Event of Default if, without Lender’s prior written consent (which consent may be given or withheld for any or for no reason subject to such conditions as Lender may establish, in Lender’s discretion) a Disposition shall occur. For the purposes of the foregoing, each of the following shall be deemed a “Disposition”:

(a)          a sale, conveyance, assignment, transfer, disposition or divesture of Borrower’s title to all or any part of the Property, or a conveyance of security title to the Property, in any manner, whether voluntary or involuntary;

(b)          a Lease of all or a substantial part of the Property for other than actual occupancy by a tenant under a Lease or a sale, assignment or other transfer of, or the grant by Borrower of a security in, Borrower’s right, title and interest in and to any Leases or Rents;

(c)          a sale, transfer, assignment, liquidation, or dissolution involving (i) any or all of the assets of Borrower, or (ii) all or substantially all of the assets of Guarantor, or any Borrower Control Party ;

(d)          merger, consolidation, reorganization or any other business combination with respect to the Borrower, Guarantor, or any Borrower Control Party ;

(e)           an assignment, transfer, voluntary or involuntary sale (or any of the foregoing at one time or over any period of time) of an interest, direct or indirect, in Borrower or Borrower Control Party;

(f)           an assignment, transfer, voluntary or involuntary sale (or any of the foregoing at one time or over any period of time) of a Controlling Interest, direct or indirect, in Guarantor;

(g)          the conversion of any general partner interest in Borrower to a limited partner interest if Borrower is a partnership;

(h)          any change, removal, or resignation of any general partner of Borrower if Borrower is a partnership;

(i)           any change, removal, addition or resignation of a manager or managing member of Borrower (or if no manager or managing member, any member) if Borrower is a limited liability company;

(j)           the creation or issuance of new stock by which an aggregate of more than 10% of a corporation that is the manager, managing member or general partner of Borrower shall be vested in a party or parties who are not shareholders as of the date of this Agreement;

(k)          any change, removal, or resignation of any trustee of Borrower if Borrower is a trust;

(l)           any change, removal, or resignation of any third party investment advisor previously approved by Lender to operate/manage the Borrower; or

(m)         any financing (except as expressly provided in Section 4.11(a)(ix)), including without limitation, any secondary, subordinate or mezzanine financing, secured by the Property or interests in Borrower or interest in any entity having a Controlling Interest in Borrower.

Notwithstanding the foregoing, if Lender fails to respond to Borrower’s written request (which shall include an updated organizational chart, if applicable) to consent to the transfer of an interest, direct or indirect, in Borrower (excluding Controlling Interests) with (i) an objection thereto, (ii) a description of requirements to be satisfied, or (iii) with a request for information or documentation, within fifteen (15) Business Days after Lender’s receipt of the request from Borrower, such transfer requested by Borrower to be consented to by Lender shall be deemed approved by Lender.

7.2          Permitted Dispositions . The following transfers shall be “ Permitted Dispositions ”:

(a)           Minority Interests and Publicly Traded Organizations . Any transfers of (i) Minority Interests in the Borrower or in a Borrower Control Party, provided that upon completion of each such transfer all of the Transfer Conditions have been satisfied (or waived by Lender); or (ii) transfers of securities of a corporation or other organization or entity whose common stock is traded on a nationally or internationally recognized public securities exchange provided that upon completion of each such transfer all of the Transfer Conditions have been satisfied (or waived by Lender). Notwithstanding the foregoing or anything to the contrary contained in this Agreement, neither the consent of Lender nor notice to Lender shall be required in connection with the listing or issuance (or trading or pledging) of any share or stock or any sale or transfer by a shareholder of any shares of Key Principal(s) or any other corporation or real estate investment trust the shares of which are publicly traded on the New York Stock Exchange or any other nationally or internationally recognized securities exchange or quoted on a nationally or internationally recognized automated quotation system, including, without limitation, NASDAQ, nor shall any such listing, sale, transfer or issuance (or trading or pledging) of stock constitute a Disposition prohibited by this Agreement or the other Loan Documents provided that after such sale, transfer or issuance of stock or units in Key Principal(s) or such other publicly traded real estate investment trust or corporation, such entity continues to be publicly traded on the New York Stock Exchange or any other nationally or internationally recognized securities exchange or quoted on a nationally or internationally recognized automated quotation system. Borrower shall not be liable for the payment of any fee or premium to Lender in connection with any Permitted Disposition pursuant to this Section 7.2(a).

(b)           Related Party and Estate Planning Transfers . Borrower shall have the right to transfer or distribute (direct or indirect) interests in Borrower or a Borrower Control Party upon not less than ten (10) days advance written notice (excluding Section 7.2(b)(iv)) to Lender provided that such transfer or distribution (i) is to any other direct or indirect owner of Borrower; (ii) to any member of the immediate family of any direct or indirect owner of Borrower, including spouses, children, or grandchildren for estate planning purposes; (iii) is to any trust, partnership or other entity for the benefit of any of the parties referred to in (i) or (ii) and for the sole purpose of estate planning purposes; (iv) occurs by inheritance, devise, bequest or by operation of law upon the death of a natural person who is the owner of a direct or indirect ownership interest in Borrower , provided that upon completion of each such transfer all of the Transfer Conditions have been satisfied (or waived by Lender) . Borrower shall not be liable for the payment of any fee or premium to Lender in connection with any Permitted Disposition pursuant to this Section 7.2(b).

(c)           Third Party Transfers . Borrower shall have a two-time right to transfer the Property upon not less than thirty (30) days advance written notice (subject to the limitations provided herein), to another party or parties (each a “ Transferee ”), without a change in the Interest Rate, amortization or other terms of the Loan, provided the Transferee assumes in writing all of the obligations of the Loan Documents and is acceptable to Lender, in its sole and absolute discretion and subject to the following conditions: (i) the Transferee shall be a Qualified Transferee or Qualified Institutional Investor; (ii) Borrower shall pay to Lender at the time of the first transfer a cash assumption fee equal to three-quarters of one percent (0.75%) of the then outstanding principal balance of the Loan and all of Lender’s actual out-of-pocket costs and expenses incurred in connection with the assumption (including reasonable legal costs), and for any second transfer that requires a loan assumption Borrower shall pay to Lender at the time of such second transfer a cash assumption fee equal to two percent (2.00%) of the then outstanding principal balance of the Loan and all of Lender’s actual out-of-pocket costs and expenses incurred in connection with the assumption (including reasonable legal costs); (iii) Lender’s receipt and approval of a title endorsement, if applicable; (iv) Lender’s approval of any replacement management and leasing agents for the Property (including their respective engagement agreements); (v) satisfaction (or waiver by Lender) of all of the Transfer Conditions (excluding those requirements set forth in (ii) and (iii) thereof); (vi) any Guarantor obligations are assumed by a Person acceptable to Lender in its commercially reasonable discretion (“ Replacement Guarantor ”), or if there are no Guarantors, Lender shall have the right to require a Replacement Guarantor execute Guaranty Agreements on Lender’s then current form of Guaranty Agreements and (vii) at the time of transfer, the following conditions shall be satisfied: (x) the loan-to-value ratio shall not exceed 57.5% (the “ Loan-to-Value Threshold ”), (y) the loan-to-purchase ratio shall not exceed 57.5% (the “ Loan-to-Purchase Threshold ”), and (z) a debt service coverage ratio of at least 2.00 x (the “ Debt Service Coverage Threshold ”), based upon the Interest Rate and remaining amortization schedule (any Leases with tenants not in occupancy or more than 30 days delinquent or with less than 12 months of term left shall not be included in these calculations). The Loan-to-Value Threshold, Loan-to-Purchase Threshold, and Debt Service Coverage Threshold shall be collectively defined as the “ Loan Assumption Thresholds, ” which satisfaction shall be reasonably determined by Lender based upon Lender’s then current underwriting methodology for similar properties, including, but not limited to both historical operating reviews and performance and forward-looking proforma underwriting, property condition, operating history, current occupancy, net operating income, debt service coverage, tenant exposures and financial conditions, tenant lease terms and lease rollover, market rents, any anticipated change in real estate taxes and/or assessments due with respect to the property sale/transfer, property location, financial condition and creditworthiness of borrower (i.e., the Transferee), operating and management experience of borrower (i.e., the Transferee), and then current market conditions. Borrower and/or Transferee shall have the right, in the event the Loan Assumption Thresholds are not satisfied, to make a partial prepayment of the Loan to satisfy the Loan Assumption Thresholds; provided, however, any such partial prepayment permitted in this Section shall be subject to payment of the Prepayment Premium. The right to transfer the Property pursuant to this Section 7.2(c) shall only be applicable to the Borrower and not to any Transferee.

7.3          Dealing with Transferees . In the event the ownership of the Property, or any part thereof, shall become vested in a Transferee, whether with or without the prior written consent of Lender, Lender may, without notice to Borrower, deal with such Transferee with reference to the Property and the Loan Documents, in the same manner and to the same extent as with Borrower without in any way vitiating or discharging Borrower’s liability hereunder or under any of the Loan Documents. No sale, transfer or conveyance of the Property, no forbearance on the part of Lender and no extension of time given by Lender to Borrower for the payment of the Not e shall operate to release, discharge, modify, change or affect the original liability of Borrower, either in whole or in part, unless expressly set forth in writing executed by Lender.

7.4          Secondary Financing . A pledge of any or up to all or substantially all of the assets of any Key Principal as security for and in connection with obtaining corporate line financing, without Lender’s consent, shall be permitted provided that, notwithstanding any such pledge, (i) the Transfer Conditions are all satisfied (or waived by Lender), and (ii) the commencement of a foreclosure of any such pledge which, in Lender’s commercially reasonable discretion, is likely to result in a violation of the Transfer Conditions that is not dismissed within sixty (60) days of the filing of such foreclosure, shall constitute an Event of Default. In no event shall pledges of direct ownership interests in Borrower be permitted except in connection with the Loan.

Article VIII

EVENTS OF DEFAULT

8.1          Event of Default . The term “ Event of Default ,” as used herein and in the other Loan Documents, shall mean the happening or occurrence, at any time and from time to time, of any one or more of the following (and any Event of Default that has occurred shall continue unless and until Lender accepts a cure in accordance with the terms hereof or waives (in writing) such Event of Default in its discretion):

(a)           Payments . Borrower shall fail, refuse or neglect to make any payment or deposit required under the Loan Documents when due and payable, whether at the due date thereof stipulated in the Loan Documents including, without limitation, upon the Maturity Date, acceleration or otherwise, provided, however, Borrower shall have a period of five (5) days to cure any monetary defaults (each a “Monetary Cure Period”) not more than once per Loan Year or twice during the term of the Loan, and if Borrower cures such monetary default within the applicable Monetary Cure Period, the Loan shall not accrue at the Default Rate, but nothing herein shall limit Borrower’s obligation to pay the Late Charge due in connection with such late payment.;

(b)           Performance of Obligations . Borrower shall fail, refuse or neglect or cause the failure, refusal or neglect to comply with, perform and discharge fully and timely as and when required any of the Obligations other than a failure or breach otherwise referred to in other subsections of this Section 8.1 and such failure or breach shall either not be curable or, if curable, shall remain uncured for a period of thirty (30) Business Days after the date Lender gives Notice thereof to Borrower; provided, however, that if such failure or breach is curable but requires work to be performed, acts to be done or conditions to be remedied which, by their nature, cannot be performed, done or remedied, as the case may be, within such thirty (30) Business Day period, no Event of Default shall be deemed to have occurred if Borrower commences same within such thirty (30) Business Day period and thereafter diligently and continuously prosecutes the same to completion within ninety (90) days after such Notice;

(c)           False Representation . Any representation, warranty or written statement made by Borrower, Guarantor or any principal, director, employee, advisor, beneficiary, shareholder, partner, manager, member, trustee, agent or Affiliate of Borrower or Guarantor on behalf of Borrower or Guarantor or any officers, members, partners, or employers of Borrower or Guarantor on behalf of Borrower or Guarantor under or pursuant to the Loan Documents or any affidavit or other instrument executed or delivered by Borrower and/or Guarantor with respect to the Loan Documents or the Indebtedness, including, but not limited to the Application, is determined by Lender to be false or misleading in any material respect as of the date hereof or when made;

(d)           Default Under Other Lien Document . Borrower shall default or commit an event of default under and pursuant to any other mortgage or security agreement (beyond any applicable notice and cure period) which covers or affects any part of the Property;

(e)           Insolvency; Bankruptcy . Borrower (i) as a result of an affirmative act and/or omission of Borrower, shall cease to be Solvent or shall be unable to pay the Indebtedness and perform the Obligations as the same shall mature; (ii) shall execute an assignment for the benefit of creditors or an admission in writing (other than an admission to Lender or its designees) of Borrower’s inability to pay, or Borrower’s failure to pay, its debts generally as such debts become due; (iii) shall allow the levy against the Property or any part thereof, of any execution, attachment, sequestration or other writ which is not vacated within ninety (90) days after the levy; (iv) shall allow the appointment of a receiver, trustee or custodian of Borrower or of the Property or any part thereof (other than a receiver, trustee or custodian appointed at the written request of Lender), which receiver, trustee or custodian is not discharged within ninety (90) days after the appointment; (v) files as a debtor a petition, case, proceeding or other action pursuant to, or voluntarily seeks the benefit or benefits of, any debtor relief law, or takes any action in furtherance thereof; (vi) files either a petition, complaint, answer or other instrument which seeks to effect a suspension of, or which has the effect of suspending, any of the rights or powers of Lender granted in the Note, herein or in any Loan Document; or (vii) allows the filing of a petition, case, proceeding or other action against Borrower as a debtor under any debtor relief Law or seeks the appointment of a receiver, trustee, custodian or liquidator of Borrower or of the Property, or any part thereof, or of any significant part of Borrower’s other property, and (a) Borrower admits, acquiesces in or fails to contest diligently the material allegations thereof, (b) the petition, case, proceeding or other action results in the entry of an order for relief or order granting the relief sought against Borrower, or (c) the petition, case, proceeding or other action is not permanently dismissed or discharged on or before the earlier of trial thereon or ninety (90) days next following the date such petition, case, proceeding or other action was filed;

(f)           Dissolution; Death . Borrower or any Guarantor shall die (if an individual), become incompetent (if an individual), dissolve, terminate, or liquidate ; provided, however, in the event of the incompetence or death of a Guarantor, it shall only be an Event of Default if a Replacement Guarantor with financial strength equal to or greater than that of the original Guarantor, as of the Closing Date, and acceptable to Lender, in Lender’s sole reasonable discretion, fails to execute and deliver to Lender a replacement Guaranty Agreement reasonably acceptable to Lender, or , subject to Lender’s sole reasonable discretion, in the same form as the Guaranty Agreement executed and delivered to Lender on the Closing date, on Lender’s then current form within one hundred twenty (120) days after the death or adjudication of incompetence of the Guarantor;

(g)           No Further Encumbrances . Borrower creates, places or permits to be created or placed, or through any act or failure to act, acquiesces in the placing of, or allows to remain, any secondary or subordinate Lien, mortgage, deed of trust or security interest of any kind whatsoever (“Subordinate Mortgage”), regardless of whether such Subordinate Mortgage is expressly subordinate to the Liens of the Loan Documents, with respect to the Property, other than the Permitted Encumbrances;

(h)           Disposition of Property or Beneficial Interest in Borrower . Borrower or any shareholder, member or partner of Borrower makes a Disposition (other than a Permitted Disposition) without the prior written consent of Lender;

(i)            Abandonment . Borrower abandons or removes all or any part of the Improvements, Security Property or Fixtures and fails to replace them with items of equal or better value, utility and quality as the removed items were in their original condition;

(j)            Discontinuance of Operations . Borrower vacates any substantial part of the Property, or if Borrower is not in possession of the Property (it being agreed that the demise by Borrower of any portion of the Property pursuant to an approved Lease shall not be deemed a default hereunder), or if Borrower permits any tenant to vacate or discontinue operations of or from the Property except (i) to the extent expressly permitted pursuant to the applicable Lease, (ii) by reason of a casualty or condemnation as set forth in the applicable Lease, or (iii) on a temporary basis, for the purposes of marketing the applicable premises for sublease or for the assignment of the applicable Lease, (iv) for the performance of making alterations that are approved by Lender in writing or that are otherwise permitted by the terms of this Agreement, (v) as a result of a bankruptcy of such tenant, or (vi) if such vacation or discontinuance is the normal result of the expiration of the term of such Lease.

(k)           Guarantor’s or Borrower Party’s Default . The occurrence of any event referred to in Section 8.1(e) hereof with respect to any Guarantor, Borrower Parties, Borrower Control Party or other Person obligated in any manner to pay or perform the Indebtedness or Obligations, respectively, or any part thereof (as if such Guarantor, Borrower Party, Borrower Control Party or other Person were “Borrower” in such Section 8.1(e)); provided, however, that in the event of such default by Guarantor, Borrower shall have the right to cure any such default, subject to Lender’s sole discretion and written approval, by causing a replacement guarantor that meets Lender’s then current underwriting standards for guarantors (including, but not limited to, (i) creditworthiness, (ii) financial condition; (iii) compliance with any applicable provisions of the Bank Secrecy Act, the Foreign Corrupt Practices Act or the various sanctions programs administered by the Office of Foreign Assets Control; and (iv) not having a prior negative guaranteeing history) to assume the Guarantor’s obligations under the Carveout Guaranty and the Loan Documents;

(l)            Failure to Obtain Lender’s Consent . Borrower shall, without first obtaining Lender’s prior written consent, take any action that requires Lender’s consent under the Loan Documents;

(m)          Event of Default in Loan Documents . A default beyond any applicable notice and cure periods or an Event of Default as defined in any of the Loan Documents; and

(n)           Failure to Maintain Insurance . Borrower fails to maintain insurance required pursuant to Article VI of this Agreement or fails to deliver to Lender the Evidence of Insurance as required by Article VI of this Agreement .

For the avoidance of doubt, and notwithstanding anything in this Agreement or any of the other Loan Documents to the contrary, with respect to any use of the phrases “during the continuance of an Event of Default”, “if an Event of Default has occurred and is continuing,” and similar phrases in this Agreement or any of the other Loan Documents, Lender shall not be obligated to accept any cure of a default following the expiration of the applicable cure period, if any, and if, following an Event of Default, Borrower then proffers a cure of such Event of Default, such Event of Default shall only be considered cured within the timeframe of the applicable cure period provided for under the Loan Documents if Lender, in its sole and absolute discretion, accepts such proffered cure in writing.

8.2          Remedies . Upon the occurrence of any Event of Default, interest shall automatically begin to accrue at the Default Rate and Lender may, at its option and by or through a trustee, nominee, assignee or otherwise, to the fullest extent permitted by Law, exercise any or all of the rights and remedies available to Lender at law or in equity, under the terms of the Security Instrument, or any of the following rights, remedies and recourses, either successively or concurrently:

(a)           Right to Accelerate . Lender may, without notice, demand, presentment, notice of nonpayment or nonperformance, protest, notice of protest, notice of intent to accelerate, notice of acceleration or any other notice or any other action, all of which are hereby waived by Borrower and all other parties obligated in any manner whatsoever on the Indebtedness, declare the entire unpaid balance of the Indebtedness immediately due and payable, and upon such declaration, the entire unpaid balance of the Indebtedness shall be immediately due and payable.

(b)           Lender’s Uniform Commercial Code Remedies . Lender may exercise its rights of enforcement with respect to Security Property under the Code, and in conjunction with, in addition to or in substitution for those rights and remedies:

(i)           Lender may without demand or notice to Borrower, enter upon the Property to take possession of, assemble, receive and collect the Security Property, or any part thereof, or to render it unusable;

(ii)          Lender may require Borrower to assemble the Security Property and make it available at a place Lender designates which is mutually convenient to allow Lender to take possession or dispose of the Security Property;

(iii)         Notice mailed to Borrower as provided in Section 9.1 herein at least ten (10) days prior to the date of public sale of the Security Property or prior to the date after which private sale of the Security Property occurs shall constitute reasonable notice;

(iv)         any sale made pursuant to the provisions of this subsection 8.2(b) shall be deemed to have been a public sale conducted in a commercially reasonable manner if held contemporaneously with the sale of the other Property under power of sale as provided herein upon giving the same notice with respect to the sale of the Security Property hereunder as is required for such sale of the other Property under power of sale, and such sale shall be deemed to be pursuant to a security agreement covering both real and personal property under the Code;

(v)          in the event of a foreclosure sale, whether made under the terms of the Security Instrument , or under judgment of a court, the Security Property and the other Property, or any portion thereof, may, at the option of Lender, be sold together;

(vi)         it shall not be necessary that Lender take possession of the Security Property, or any part thereof, prior to the time that any sale pursuant to the provisions of this subsection 8.2(b) is conducted, and it shall not be necessary that the Security Property or any part thereof be present at the location of such sale;

(vii)        prior to application of proceeds of disposition of the Security Property to the Indebtedness, such proceeds shall be applied to the reasonable expenses of retaking, holding, preparing for sale or lease, selling, leasing and the like and the reasonable attorneys’ fees and legal expenses incurred by Lender;

(viii)       after notification, Lender may sell, lease or otherwise dispose of the Security Property, or any part thereof, in one or more parcels at public or private sale or sales, at Lender’s offices or elsewhere, for cash, on credit or for future delivery. Borrower shall be liable for all expenses of retaking, holding, preparing for sale or the like and all attorneys’ fees, legal expenses and all other costs and expenses incurred by Lender in connection with the collection of the Indebtedness and the enforcement of Lender’s rights under the Loan Documents. Lender shall apply the proceeds of the sale of the Security Property against the Indebtedness in accordance with the provisions of Section 8.3 of this Agreement. Borrower shall remain liable for any deficiency if the proceeds of any disposition of the Security Property are insufficient to pay the Indebtedness in full. To the extent not prohibited under applicable Law, Borrower waives all rights of marshaling in respect of the Security Property;

(ix)          Lender may dispose of the Security Property in its then present condition, has no duty to repair or clean the Security Property prior to sale and may disclaim warranties of title, possession, quiet enjoyment and the like with respect to the Security Property, all without affecting the commercial reasonableness of the sale;

(x)          any and all statements of fact or other recitals made in any bill of sale, assignment or other instrument evidencing any foreclosure sale hereunder, the nonpayment of the Loan, the occurrence of any Event of Default, Lender having declared all or a part of the Loan to be due and payable, the notice of time, place and terms of sale and of the properties to be sold having been duly given, or any other act or thing having been duly done by Lender, shall be taken as prima facie evidence of the truth of the facts so stated and recited;

(xi)          Lender may appoint or delegate any one or more Persons as agent to perform any act or acts necessary or incident to any sale held by Lender, including the sending of notices and the conduct of the sale, but in the name and on behalf of Lender; and

(xii)        Lender shall have the right at any time to enforce Borrower’s rights against account debtors and obligors.

(c)           Other Rights . Lender (i) may surrender the insurance policies maintained pursuant to Article VI hereof or any part thereof, and upon receipt shall apply the unearned premiums as a credit on the Indebtedness, in accordance with the provisions of Section 8.5 hereof, and, in connection therewith, Borrower hereby appoints Lender as agent and attorney-in-fact (which is coupled with an interest and is therefore irrevocable) for Borrower to collect such premiums; (ii) may apply the reserve for Impositions and insurance premiums, if any, required by the provisions of this Agreement, toward payment of the Obligations; and (iii) shall have and may exercise any and all other rights and remedies which Lender may have at law or in equity, or by virtue of any Loan Document or under the Code, or otherwise. The failure to exercise any remedy available to Lender shall not be deemed to be a waiver of any rights or remedies of Lender under the Loan Documents, at law or in equity.

(d)           Prepayments after Event of Default . If, after the occurrence of an Event of Default, payment of all or any part of the Indebtedness is tendered by Borrower and accepted by Lender in Lender’s sole and absolute discretion or is otherwise recovered by Lender (including through application of any reserve funds), such tender or recovery shall be deemed to be a voluntary prepayment by Borrower in violation of the prohibition against prepayment set forth in Section 2.6 hereof, and Borrower shall pay, as part of the Indebtedness, all of the following: (i) all accrued interest and, if such tender and acceptance is not made on a Payment Date, interest that would have accrued on the Indebtedness to, but not including, the next Payment Date and (ii) an amount equal to the Prepayment Premium.

8.3          Application of Proceeds . The proceeds from any sale, lease, or other disposition made pursuant to this Article VIII shall be applied by Lender to the Indebtedness in the following order and priority: (a) to the payment of all expenses of advertising, selling, and conveying the Property or part thereof, and/or prosecuting or otherwise collecting Rents, other payments, proceeds, premiums, or other sums, including reasonable attorneys’ fees and a reasonable fee or commission to the party conducting the sale on behalf of Lender, not to exceed five percent of the proceeds thereof or sums so received; (b) to the remainder of the Indebtedness as follows: first, to the remaining accrued but unpaid interest, second, to the matured portion of principal of the Indebtedness, and third, to prepayment of the unmatured portion, if any, of principal of the Indebtedness applied to installments of principal in inverse order of maturity; (c) the balance, if any and to the extent applicable, remaining after the full and final payment of the Indebtedness and full performance and discharge of the Obligations, to the holder or beneficiary of any inferior Liens covering the Property, if any, in order of the priority of such inferior Liens (Lender shall hereby be entitled to rely exclusively upon a commitment for title insurance issued to determine such Liens and their priority); and (d) the cash balance, if any, to the Borrower. The application of proceeds of sale or other proceeds as otherwise provided herein shall be deemed to be a payment of the Indebtedness like any other payment. The balance of the Indebtedness remaining unpaid, if any, shall remain fully due and owing in accordance with the terms of the Loan Documents.

8.4          Payment of Costs . To the fullest extent allowable under applicable Law, Borrower shall pay all actual out-of-pocket costs incurred or paid by Lender in connection with the Indebtedness, the Obligations, or the Loan Documents (a) in collecting payment, whether or not suit is filed; (b) in defending and/or bringing suit, or if Lender otherwise becomes a party to any suit or proceeding where the Indebtedness, Obligations, or any Loan Documents are involved, or if Lender is required to respond to any service of process, including a subpoena; (c) in foreclosing or taking any other actions to secure possession and exercise Lender’s rights with respect to any collateral; (d) in connection with any bankruptcy, reorganization, or other similar proceeding, or any probate proceeding, involving Borrower, any Guarantor, or any Borrower Control Party which in any way affects the exercise by Lender of its rights and remedies; (e) to otherwise enforce Lender’s rights and remedies pursuant to or which arise out of this Agreement and/or any other Loan Document; (f) in connection with the negotiation, preparation, and execution hereof and of any other Loan Document and any amendment hereto or thereto, or any release, consent, approval, or waiver hereunder or under any other Loan Document; (g) in connection with the making of any advance under the Note; (h) incurred by Lender which are payable or reimbursable by Borrower pursuant to any Loan Document; and (i) which are the obligation of Borrower pursuant to any of the Loan Documents. All such costs shall be and become a part of the Indebtedness. Except as otherwise expressly provided for herein, all such costs shall be due and payable when incurred and shall bear interest at the Default Rate from the date such costs are paid by Lender until Lender is reimbursed for the respective costs and interest.

8.5          Setoff . In addition to all other rights under any of the Loan Documents, Borrower grants to Lender the right, without any notice or demand, to set off against all money, securities, Termination Fees held by Lender or any agent of Lender, and similar assets of Borrower, now or hereafter in possession of or on deposit with Lender, whether held in a general or special account or deposit, to apply such to any Indebtedness which is due and payable by Borrower to Lender in any order that Lender may determine in Lender’s discretion.

8.6          Miscellaneous .

(a)           Right to Perform Borrower’s Covenants . If Borrower has failed to keep or perform any covenant whatsoever contained in any of the Loan Documents, Lender may, but shall not be obligated to any Person to do so, perform or attempt to perform said covenant, and any payment made or expense incurred (individually or collectively, a “ Protective Advance ”) in the performance or attempted performance of any such covenant shall be and become a part of the Obligations, and Borrower promises to pay to Lender, at the place where the Note is payable, all sums so advanced or paid by Lender, with interest from the date when paid or incurred by Lender at the Default Rate upon the earlier of the date that is ninety (90) days after Lender made the Protective Advance and five (5) Business Days after Borrower receives written demand from Lender. No such payment by Lender shall constitute a waiver of any Event of Default. In addition to the Liens hereof, Lender shall be subrogated to all rights, titles, Liens securing the payment of any debt, claim, tax or assessment for the payment of which Lender may make an advance, or which Lender may pay.

(b)           Discontinuance of Remedies . In case Lender shall have proceeded to invoke any right, remedy or recourse permitted under the Loan Documents and shall thereafter elect to discontinue or abandon same for any reason, Lender shall have the unqualified right so to do, and in such event, Borrower and Lender shall be restored to their former positions with respect to the Indebtedness, the Loan Documents, the Property or otherwise, and the rights, remedies, recourses and powers of Lender shall continue as if same had never been invoked.

(c)           Other Remedies . In addition to the remedies set forth in this Article and in the Security Instrument, upon the occurrence of an Event of Default, Lender shall, in addition, have all other remedies available to it at law or in equity.

(d)           Remedies Cumulative; Non-Exclusive; Etc. All rights, remedies and recourses of Lender granted in the Loan Documents, any other pledge of collateral or otherwise available at law or in equity: (i) shall be cumulative and concurrent; (ii) may be pursued separately, successively or concurrently against Borrower, the Property or any one or more of them, at the discretion of Lender; (iii) may be exercised as often as occasion therefor shall arise, it being agreed by Borrower that the exercise or failure to exercise any of same shall in no event be construed as a waiver or release thereof or of any other right, remedy or recourse; (iv) shall be nonexclusive; (v) shall not be conditioned upon Lender exercising or pursuing any remedy in relation to the Property prior to Lender bringing suit to recover the Indebtedness or suit on the Obligations; and (vi) in the event Lender elects to bring suit on the Indebtedness and/or the Obligations and obtains a judgment against Borrower prior to exercising any remedies in relation to the Property, all Liens including the Lien of the Security Instrument, shall remain in full force and effect and may be exercised at Lender’s option.

(e)           Partial Release; Etc . Lender may release, regardless of consideration, any part of the Property without, as to the remainder, in any way impairing, affecting, subordinating or releasing the Lien evidenced by the Loan Documents or affecting the obligations of Borrower or any other party to pay the Indebtedness or perform and discharge the Obligations. For payment of the Indebtedness, Lender may resort to any of the collateral therefor in such order and manner as Lender may elect. No collateral heretofore, herewith or hereafter taken by Lender shall in any manner impair or affect the collateral given pursuant to the Loan Documents, and all collateral shall be taken, considered and held as cumulative. The taking of additional collateral, or the amendment, extension, renewal, or rearrangement of the Indebtedness or Obligations, or any part thereof, shall not release or impair the Lien, or other rights granted by any of the Loan Documents, or affect the liability of Borrower, any endorser, constituent party, or Guarantor, or any other Person or entity obligated for payment or performance of any portion of the Indebtedness or Obligations, or improve the right of any junior lienholder.

(f)           Waiver and Release . To the extent not prohibited by applicable Law, Borrower, each Borrower Party and Guarantor, and all endorsers of the Note, hereby irrevocably and unconditionally waive and release: (i) all benefits that might accrue to Borrower by virtue of any present or future Law exempting the Property from attachment, levy or sale on execution or providing for any appraisement, stay of execution, exemption from civil process, redemption, or extension of time for payment; (ii) except as otherwise expressly required in any Loan Documents, all notice of any Event of Default, notice of the exercise of any right, remedy, or recourse provided for under the Loan Documents, or any other notice under or with respect to all of the Loan Documents or any action taken by Lender in connection therewith; (iii) any right to a marshaling of assets or a sale in inverse order of alienation; (iv) any right to be released, or any claim that a release has occurred, by reason of any extension of time or any modification to the terms of any of the Loan Documents, except a party will not be liable for an increase in the amount of principal, or interest on such increased principal, pursuant to any such modification if such principal increase was not contemplated in the Loan Documents (absent such modification) or agreed to in writing by such party; and (v) all rights to the benefits of any statute of limitations, moratorium, or laches now provided or which may hereafter be provided by federal or state Law or pursuant to common law, to the fullest extent such rights can be waived and released pursuant to applicable Law.

(g)           No Implied Covenants . There are no, nor shall there be any, implied covenants of good faith and fair dealing or other similar covenants or agreements in any of the Loan Documents. All agreed contractual duties are set forth in the Loan Documents.

(h)           Real Property Laws Govern . The remedies in this Article VIII shall be available under and governed by the real property Laws of the State and shall not be governed by the personal property Laws of the State provided Lender elects to proceed as to the Security Property together with the other Property under and pursuant to the real property remedies of this Article VIII .

8.7          Cross Default . This Agreement is also evidenced and/or secured by the terms, conditions and provisions of the Note, Security Instrument, Assignment, and other Loan Documents. The terms, covenants, conditions and agreements of each security instrument shall be considered a part hereof as fully as if set forth herein verbatim. Any default continuing beyond any applicable notice and cure periods under any of the Loan Documents shall constitute an Event of Default hereunder and under each of the other Loan Documents. Notwithstanding the foregoing, the enforcement or attempted enforcement of the Loan Documents now or hereafter held by Lender shall not prejudice or in any manner affect the right of Lender to enforce any other Loan Document.

Article IX

MISCELLANEOUS

9.1          Notices . Any notice or other communication required or permitted to be given under this Agreement shall be in writing and either shall be sent by overnight courier service or personally delivered to a representative of the receiving party. All such communications shall be sent or delivered, addressed to the party for whom it is intended at its address set forth below:

Any communication so addressed and sent shall be deemed to have been delivered on the earlier of (1) actual delivery, and (2) on the first Business Day after deposit with an overnight courier service, if such deposit is timely and appropriate in accordance with the requirements of such courier service for next business day delivery, in either case to the address of the intended addressee, and any communication so delivered in person shall be deemed to be given when receipted for by, or actually received by Lender or Borrower, as the case may be. Borrower or Lender may designate a change of address within the United States of America by written notice to the other by giving at least ten (10) days prior written notice of such change of address.

9.2          Preservation of Rights . No delay or omission on Lender’s part to exercise any right or power arising hereunder will impair any such right or power or be considered a waiver of any such right or power, nor will Lender’s action or inaction impair any such right or power. Lender’s rights and remedies hereunder are cumulative and not exclusive of any other rights or remedies which Lender may have under other agreements, at law or in equity.

9.3          Illegality . If any provision contained in this Agreement should be invalid, illegal or unenforceable in any respect, it shall not affect or impair the validity, legality and enforceability of the remaining provisions of this Agreement.

9.4          Changes in Writing . No modification, amendment or waiver of, or consent to any departure by Borrower from, any provision of this Agreement or any other Loan Document will be effective unless made in a writing signed by the party to be charged, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Notwithstanding the foregoing, Lender may modify any of the Loan Documents for the purposes of completing missing content or correcting erroneous content, without the need for a written amendment, provided that Lender shall send a copy of any such modification to Borrower (which notice may be given by electronic mail) and shall obtain Borrower’s acknowledgment to any such completion or correction, which acknowledgment shall be deemed given if Borrower does not respond to such notice within five (5) Business Days after Borrower’s receipt thereof; provided, however, that Borrower, except in the case of manifest error, shall not be required to execute and deliver any documents, agreements and/or instruments which increase Borrower’s obligations and/or liabilities under the Loan Documents or decrease Borrower’s rights under the Loan Documents, in each case, beyond a de minimis extent. No notice to or demand on Borrower will entitle Borrower to any other or further notice or demand in the same, similar or other circumstance.

9.5          Entire Agreement . This Agreement together with the other Loan Documents constitute the entire agreement and supersede all other prior agreements and understandings, both written and oral, between the parties with respect to the subject matter hereof.

9.6          Counterparts . This Agreement may be signed in any number of counterpart copies and by the parties hereto on separate counterparts, but all such copies shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page to this Agreement by electronic transmission shall be effective as delivery of a manually executed counterpart. Any party so executing this Agreement by electronic transmission shall promptly deliver a manually executed counterpart, provided that any failure to do so shall not affect the validity of the counterpart executed by electronic transmission.

9.7          Successors and Assigns . This Agreement will be binding upon and inure to the benefit of Borrower and Lender and their respective heirs, executors, administrators, successors and assigns; provided, however, that Borrower may not assign this Agreement in whole or in part without Lender’s prior written consent (subject to the terms of Section 7.2(c) hereof) and Lender at any time may assign this Agreement in whole or in part.

9.8          Interpretation . In this Agreement, unless Lender and Borrower otherwise agree in writing, the singular includes the plural and the plural the singular; words importing any gender include the other genders; references to statutes are to be construed as including all statutory provisions consolidating, amending or replacing the statute referred to; the word “or” shall be deemed to include “and/or”, the words “including”, “includes” and “include” shall be deemed to be followed by the words “without limitation”; references to articles, sections (or subdivisions of sections) or exhibits are to those of this Agreement; and references to agreements and other contractual instruments shall be deemed to include all subsequent amendments and other modifications to such instruments, but only to the extent such amendments and other modifications are not prohibited by the terms of this Agreement. Section headings in this Agreement are included for convenience of reference only and shall not constitute a part of this Agreement for any other purpose. Unless otherwise specified in this Agreement, all accounting terms shall be interpreted and all accounting determinations shall be made in accordance with generally accepted accounting principles consistently applied. If this Agreement is executed by more than one party as Borrower, the obligations of such Persons will be joint and several.

9.9          No Consequential Damages, Etc. Lender will not be responsible for any damages, consequential, incidental, special, punitive or otherwise, that may be incurred or alleged by any Person, including Borrower and any Guarantor, as a result of this Agreement, the other Loan Documents, the transactions contemplated hereby or thereby, or the use of the proceeds of the Loan.

9.10        Governing Law and Jurisdiction . This Agreement has been delivered to and accepted by Lender and will be deemed to be made in the State. This Agreement will be interpreted and the rights and liabilities of the parties hereto determined in accordance with the Laws of the State, excluding its conflict of laws rules. Borrower hereby irrevocably consents to the exclusive jurisdiction of any state or federal court in the county or judicial district where the Real Property is located; provided that nothing contained in this Agreement will prevent Lender from bringing any action, enforcing any award or judgment or exercising any rights against Borrower individually, against any security or against any property of Borrower within any other county, state or other foreign or domestic jurisdiction. The venue provided above is the most convenient forum for both Lender and Borrower. Borrower waives any objection to venue and any objection based on a more convenient forum in any action instituted under this Agreement.

9.11        Modification Not an Impairment of Security . Lender, without notice, may release any part of the security described herein or may release any Person liable for the Loan without in any way affecting the priority of the Security Instrument, to the full extent of the Loan remaining unpaid hereunder, upon any part of the security not expressly released. Lender, at its option and within Lender’s discretion, may agree with any party obligated on the Loan or having any interest in the security described herein, to extend the time for payment of any part or all of the Loan, and such agreement shall not, in any way, release or impair the Security Instrument, but shall extend the same as against the title of all parties having any interest in said security, which interest is subject to the Security Instrument. In the event Lender (a) releases, as aforesaid, any part of the security described herein or any Person liable for the Loan; (b) grants an extension of time for the payment of the Note; (c) takes other or additional security for the payment of the Note; or (d) waives or fails to exercise any rights granted in any of the Loan Documents, any said act or omission shall not release Borrower, subsequent purchasers of the Property or any part thereof, or any Guarantor from any obligation or any covenant of any of the Loan Documents, nor preclude Lender from exercising any right, power or privilege herein granted or intended to be granted in the event of any other default then made or any subsequent default.

9.12        Replacement Documents . Upon receipt of an affidavit of an officer of Lender as to the loss, theft, destruction or mutilation of the Note or any other Loan Document which is not of public record and, in the case of any such mutilation, upon surrender and cancellation of such Note or other Loan Document, Borrower, at its expense, will issue, in lieu thereof, a replacement Note or other Loan Document, dated the date of such lost, stolen, destroyed or mutilated Note or other Loan Document in the same principal amount thereof and otherwise of like tenor.

9.13        Sole Discretion of Lender . Wherever pursuant to this Agreement Lender exercises any right given to it to approve or disapprove, or any arrangement or term is to be satisfactory to Lender, the decision of Lender to approve or disapprove or to decide that arrangements or terms are satisfactory or not satisfactory shall be in the sole discretion of Lender and shall be final and conclusive, except as may be otherwise expressly and specifically provided herein.

9.14        Expenses . Borrower shall pay Lender, upon the execution of this Agreement, and otherwise within five (5) Business Days following demand, all actual out-of-pocket costs and expenses incurred by Lender in connection with the preparation, negotiation and delivery of this Agreement and the other Loan Documents, and any modifications thereto, and the collection of all of the Obligations, including but not limited to enforcement actions, relating to the Loan, whether through judicial proceedings or otherwise, or in defending or prosecuting any actions or proceedings arising out of or relating to this Agreement, including reasonable fees and expenses of counsel (which may include costs of in-house counsel), expenses for auditors, appraisers and environmental consultants, lien searches, recording and filing fees and taxes. Fees and expenses imposed or incurred by Lender in connection with considering any request by Borrower for approval, modification or waiver may include a reasonable processing fee imposed by Lender and legal fees, if counsel is used (including, without limitation, in-house and outside counsel), and shall be paid or reimbursed to Lender by Borrower regardless of whether Lender shall have given such approval or waiver or agreed to such modification.

9.15        UCC Financing Statements . Borrower authorizes Lender to file such financing statements, with or without the signature of Borrower, as Lender may elect, as may be necessary or desirable to perfect the Lender’s Lien in the Security Property. Without limiting any other provision herein, Borrower hereby authorizes Lender to file one or more financing statements and any renewal or continuation statements thereof, describing the Property and the proceeds of the Property, including, without limitation, a financing statement covering “all assets of Borrower, all proceeds therefrom, and all rights and privileges with respect thereto.” Borrower further authorizes Lender to file, with or without any additional signature from Borrower, as Lender may elect, such amendments and continuation statements as Lender may deem necessary or desirable from time to time to perfect or continue the Lender’s Lien in the Security Property. Borrower hereby ratifies any financing statements that may have been filed by Lender in advance of the date hereof to perfect Lender’s security interest in the Security Property.

9.16        Secondary Market . Lender may, at any time, sell, transfer or assign any of the Loan Documents, any or all servicing rights with respect thereto, or grant participations therein or issue mortgage pass-through certificates or other securities evidencing a beneficial interest in a rated or unrated public offering or private placement. Lender may forward to each purchaser, transferee, assignee, servicer or participant (collectively, “ Investor ”), and each prospective Investor, all documents and information which Lender now has or may hereafter acquire relating to the Loan and to Borrower, any Guarantor and the Property, whether furnished by Borrower, any Guarantor or otherwise, as Lender determines necessary or desirable. In connection therewith, Borrower agrees that it shall cooperate with Lender (at Lender’s sole cost and expense) and use commercially reasonable efforts to facilitate the consummation of any such sale, transfer, assignment, participation or grant which may include the execution of more than one Note secured by the Loan Documents, provided that the total amount of indebtedness under such Notes shall not exceed the amount owing by Borrower under the Loan. Lender shall be responsible for all of Borrower’s reasonable expenses incurred in connection with any such sale, transfer, assignment, participation or grant.

9.17        WAIVER OF JURY TRIAL . EACH OF BORROWER AND LENDER IRREVOCABLY WAIVES ANY AND ALL RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR CLAIM OF ANY NATURE RELATING TO THIS AGREEMENT, ANY DOCUMENTS EXECUTED IN CONNECTION WITH THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED IN ANY OF SUCH DOCUMENTS. BORROWER AND LENDER ACKNOWLEDGE THAT THE FOREGOING WAIVER IS KNOWING AND VOLUNTARY.

9.18        Time of the Essence . Time is of the essence with respect to the performance of Borrower’s and Guarantor’s obligations under the Loan Documents.

9.19        Electronic Images . Borrower hereby acknowledges and agrees that Lender may create electronic images and destroy paper originals of any imaged documents received or generated by Lender in connection with the Loan. Any such images maintained by Lender as part of its normal business processes shall be given the same legal effect as the paper original(s) thereof. Borrower hereby agrees that Lender may convert any instrument into a “electronic record” under the Uniform Electronic Transactions Act (Ohio Uniform Commercial Code Section 1306.01, et seq.) (the “ UETA ”), and that the image of such instrument in Lender’s possession shall constitute an “authoritative copy” under the UETA.

9.20        Payments Due on Non-Business Days . If the Loan Documents require Borrower to make any payment on a day that is not a Business Day, then: (a) Borrower shall instead pay such amount on the next Business Day (except where the Loan Documents provide otherwise for any particular payment); and (b) notwithstanding any applicable Law to the contrary (including, but not limited to, New York General Construction Law Section 25), Borrower shall not be credited with such payment until the date Borrower actually pays it. Any applicable interest shall continue to accrue on such amount until such date.

Article X

LIMITATION OF LIABILITY

10.1        Non-Recourse Liability . Except as hereinafter provided, the liability of Borrower with respect to the payment of principal and interest (and any other sums due except any sums due by Guarantor under the Guaranty Agreement or under the Indemnity Agreement) hereunder shall be “non-recourse,” and Lender’s source of satisfaction of the Indebtedness and Borrower’s other obligations under the Loan Documents shall be limited to the Property and Lender’s receipt of the Rents from the Property and any other security or collateral now or hereafter held by Lender. Lender shall not seek to procure payment out of other assets of Borrower, any principal, director, employee, advisor, beneficiary, shareholder, partner, manager, member, trustee, agent or Affiliate of Borrower (but specifically excluding Guarantor under the Guaranty Agreement and Indemnity Agreement) each, an “Exculpated Party” and, collectively, the “Exculpated Parties”), nor seek any judgment against Borrower or any Exculpated Parties (other than Guarantor under the Guaranty Agreement or the Indemnity Agreement) for any sums that are or may be payable under the Loan Documents, including any claim or judgment (except as hereafter provided) for any deficiency remaining after foreclosure of the Security Instrument. The above provisions shall not be deemed to be a release or impairment of the Loan evidenced by the Note or the security therefor intended by the other Loan Documents, nor be deemed to preclude Lender from exercising its rights to foreclose the Security Instrument or to enforce any of its other rights or remedies under the Loan Documents, including but not limited to the Guaranty Agreement. It is expressly understood and agreed that the aforementioned limitation on liability shall in no way affect or apply to the continued personal liability of Borrower or any Guarantor, jointly and severally, for all Enforcement Costs and any and all actual out-of-pocket costs, expenses (including Protective Advances), losses and/or damages incurred by Lender as a result of any of the following:

(a)          Fraud, willful misconduct or material misrepresentation made by any of the Borrower Parties in connection with the Application, any of the Loan Documents, or any other supporting or due diligence documentation provided by Borrower, Guarantor or any of the other Borrower Parties in connection therewith;

(b)         Failure to pay any Real Estate Taxes which accrue prior to Lender taking title to the Property, or to pay assessments, charges for labor or materials, or any other charges that could result in Liens on all or any portion of the Property (except (x) for any Permitted Encumbrances, (y) such charges that are bonded off or discharged in accordance with the terms of this Agreement, or (z) to the extent that sums sufficient to pay such amounts have been deposited into a cash collateral account with Lender for the purpose of paying such assessments and charges), provided, however, any such failure shall only trigger recourse liability if at the time of such failure, (A) Borrower had sufficient cash flow (i.e., Borrower has not made any distributions (excluding all commercially reasonable third party operating expenses) from the Property over the previous twelve month period unless Borrower has also reserved funds, on a monthly basis, in an amount that would reasonably be expected to be sufficient to pay such amounts as they become due) from the Property to pay such amounts but failed to do so; or (B) Borrower (x) had insufficient cash flow from the Property to pay such amounts, (y) failed to give Lender immediate written notice that Borrower would have insufficient cash flow from the Property to pay any amounts owed prior to their delinquency, and (z) is not cooperating in good faith with Lender in completing a deed in lieu of foreclosure, at Borrower’s sole cost and expense, to the extent Lender has requested a deed in lieu of foreclosure;

(c)          Misappropriation of: (i) proceeds of insurance received by or on behalf of Borrower covering all or any portion of the Property, (ii) proceeds received by or on behalf of Borrower from the sale or condemnation of all or any portion of the Property, or (iii) rentals or other income from the Property received by or on behalf of Borrower and not applied to satisfy Borrower’s obligations hereunder and/or under the Loan Documents;

(d)          Causing or negligently permitting physical waste, arson or other similar damage to occur in, on or about the Property;

(e)          Failure to pay to Lender all unearned advance rentals and security deposits that have been paid to Borrower, a Borrower Affiliate or agent of Borrower by tenants of the Property, which are not delivered to Lender in accordance with the Loan Documents unless such funds have been refunded to such tenants or were applied in accordance with the terms and conditions of any of the Leases;

(f)           Borrower’s material amendment, modification, renewal (except as expressly provided for therein), extension, or termination of any Major Tenant Lease without Lender’s consent, if required pursuant to the terms hereof, and the failure to deliver to Lender any Termination Fees (if required pursuant to the terms of the Loan Documents), including any amounts paid in connection with the bankruptcies or insolvencies of such tenants, and Borrower’s failure to assign any claims, proofs of claims or other rights relating to the future right to receive payment of such amounts;

(g)          Loss by fire, casualty, acts of terrorism, or other events, not compensated by insurance proceeds collected by or remitted to Lender as a result of Borrower’s failure to comply with Lender’s insurance requirements (including the payment of any required deductibles);

(h)          Failure to return to Lender or reimburse Lender for all Security Property owned by Borrower taken from the Property by or on behalf of Borrower out of the ordinary course of business and not replaced by items of like or greater value than the original value of the Security Property so removed;

(i)           Any breach of any representation, warranty, covenant or indemnity obligations under the Indemnity Agreement;

(j)           Borrower’s failure to timely pay any amounts payable for all state documentary stamp taxes, recording and transfer taxes, and intangible personal property taxes, if any, which may be levied or assessed against the Loan, or any of the Loan Documents, together with all interest, penalties or charges in connection therewith; and

(k)          Borrower’s violation of the terms of the Condominium Documents in any material respect or Borrower’s failure to comply with the terms and conditions of the affirmative and negative covenants described in this Agreement with respect to the Condominium Documents, including, without limitation, (i) without Lender’s prior written consent, Borrower entering into, or consenting to, any amendment of the Condominium Documents that requires the consent of the Borrower or that would materially and adversely affect Borrower’s rights as owner of the Property or Lender’s rights as mortgagee, or (ii) without Lender’s prior written consent, Borrower voting to terminate the Condominium or to dissolve the Association (if any) for any reason.

The obligations of Borrower in subsections (a) through (k) above shall survive (1) foreclosure under the Security Instrument (or Lender’s acceptance of a deed in lieu thereof); or (2) the satisfaction of all Obligations (including the full repayment of the Loan) under the Loan Documents, but only as to claims, or matters which are based upon or arise out of circumstances or conditions which are first created or which first arise or come into existence prior to the events described in clauses (1) and (2) of this sentence,provided, however, the obligations of Borrower and Carveout Guarantor in subsections (a) through (h) and (j) above shall be released twelve (12) months after the Loan is indefeasibly paid in full, subject to the following: (i) if at any time any payment of the principal of or interest under the Note or any other amount paid by Borrower or Carveout Guarantor under the Loan Documents is rescinded or must be otherwise restored or returned upon the insolvency, bankruptcy or reorganization of Borrower or otherwise, Borrower’s and Carveout Guarantor’s obligations shall be reinstated; and (ii) the foregoing release shall not apply to Borrower and Carveout Guarantor’s obligation to defend, indemnify and hold Lender harmless from any claims in accordance with the terms of the Loan Documents. Notwithstanding the foregoing, the obligations in subsection (i) above shall be deemed terminated upon the termination of the corresponding obligations pursuant to Section 6.12 of the Indemnity Agreement.

10.2        Full Recourse Liability . Borrower and Guarantor shall become personally liable, jointly and severally, for the entire amount of the Loan (including all principal, interest and other charges associated therewith) and performance under the Loan Documents in the event that: (a) Borrower or any Person having a direct or indirect ownership interest in Borrower violates the covenant governing the placing of secondary financing pursuant to Sections 4.11(a)(ix), 7.1(m) or 8.1(g) of this Agreement (except as permitted by Section 7.4 of this Agreement), (b) Borrower or any Person having a direct or indirect ownership interest in Borrower violates the covenant restricting Dispositions (other than Permitted Dispositions) pursuant to Article VII of this Agreement, (c) any of the Borrower Parties files a petition in bankruptcy or for the appointment of a receiver (other than a receiver appointed at the written request of Lender) , or commences under any bankruptcy or insolvency law, proceedings for any Borrower Parties’ relief or for the compromise, extension, arrangement or adjustment of Borrower Parties’ obligations, (d) there is filed against any of the Borrower Parties a petition in bankruptcy or for the appointment of a receiver (other than a filing instituted by Lender), or there is commenced under any bankruptcy or insolvency law, proceedings for any Borrower Parties’ relief, or for the compromise, extension, arrangement or adjustment of any of the Borrower Parties’ obligations resulting from Borrower’s breach of the Loan Documents or any of the Borrower Parties collusion in an involuntary bankruptcy proceeding filed against any of the Borrower Parties which is not dismissed within one hundred eighty (180) days after the filing of same, (e) there is filed against Borrower any claim by reason of the operation of federal bankruptcy, state insolvency or similar creditors’ rights laws that is based on (i) the Loan being deemed a fraudulent conveyance or fraudulent transfer; or (ii) the Loan being deemed a preferential transfer, (f) in the event any Borrower Parties or any Affiliate thereof challenges or disputes the validity or enforceability of any of the provisions of the Loan Documents following a Material Default, seeks to delay or impair the enforcement of Lender’s remedial rights under the Loan Documents following a Material Default under the Loan Documents, or challenges the validity, enforceability or first priority of the liens and security interests securing payment of amounts owing or payable under the terms of the Loan Documents (unless prior to such challenge Borrower has either commenced turning over all revenue (including any security deposits) from the Property or Borrower has cooperated with the appointment of a receiver to preserve and protect the Property during the pendency of such challenge), or (g) Borrower commits a material violation of Section 4.11 of this Agreement which is a contributing factor in the substantive consolidation of Borrower with another entity.

Notwithstanding the foregoing, Borrower shall not have any liability pursuant to this Section 10.2 if Borrower can prove that any acts or omissions that would have created liability hereunder were caused by (or resulted from) the fraud, willful misconduct or gross negligence of Lender, in each case as determined by a court of competent jurisdiction in a final, non-appealable judgment.

Notwithstanding anything to the contrary contained herein or in any of the other Loan Documents, other than with respect to the Guarantor under the Guaranty Agreement and under the Indemnity Agreement, no Exculpated Party shall have any personal liability for, nor be joined as a party to, any action with respect to (i) the payment of any sum which is or may be payable under this Agreement or the other Loan Documents, or (ii) the performance or discharge of any covenants, obligations or undertakings of Borrower.

[Signature Page to Follow]

(Signature Page to Loan Agreement)

IN WITNESS WHEREOF , each of the parties hereto has caused this Agreement to be duly executed and delivered as of the date first above written.

[Lender ’ s Signature Page Follows]

(Signature Page to Loan Agreement)

IN WITNESS WHEREOF , each of the parties hereto has caused this Agreement to be duly executed and delivered as of the date first above written.

Exhibit 10.6

Carveout GUARANTY

This CARVEOUT GUARANTY (“ Guaranty ”) is executed as of July 17, 2019, by NEW YORK CITY OPERATING PARTNERSHIP, L.P. , a Delaware limited partnership, whose address is c/o AR Global 405 Park Avenue, New York, New York 10022 (“ Guarantor or Carveout Guarantor ”), to and for the benefit of Nationwide Life Insurance Company , an Ohio corporation, together with its successors and assigns, whose address is One Nationwide Plaza, Fifth Floor, Columbus, Ohio 43215, Attention: Real Estate Investments, 1-05-701 (“ Lender ”).

RECITALS :

A.           Pursuant to the terms of that certain Loan Agreement of even date herewith, by and between Lender and ARG NYC196ORCHARD, LLC , a Delaware limited liability company (the “ Borrower ”) (as amended, restated, modified, supplemented, extended, renewed or replaced from time to time, the “ Loan Agreement ”), Lender has agreed to extend to Borrower a loan in the principal amount of up to FIFTY ONE MILLION and NO/100 U.S. DOLLARS ($51,000,000.00) (the “ Loan ”). The Loan is evidenced by that certain Modification, Consolidation and Extension Promissory Note of even date herewith made by Borrower and payable to the order of Lender (as the same may be amended, modified, supplemented, extended, renewed, restated or replaced from time to time, the “ Note ”).

B.           The Loan and Borrower’s obligations under the Loan Agreement and the Note are secured by, among other things, that certain Mortgage Modification, Consolidation, Extension, Security Agreement and Fixture Filing (as the same may be amended, restated, modified, supplemented, extended, renewed or replaced from time to time, the “ Security Instrument ”) made by Borrower for the benefit of Lender, encumbering certain land and improvements constructed thereon (or to be constructed thereon) and other property more particularly described in the Security Instrument (collectively the land, improvements and such other property are referred to herein and in the Security Instrument as the “ Property ”), such land being more particularly described in Exhibit A attached to the Security Instrument.

C.        Guarantor acknowledges and agrees that this Guaranty and the covenants of Guarantor hereunder are an integral part of Lender’s security for the Loan and that Lender would not have made the Loan in the absence of this Guaranty and Guarantor’s covenants hereunder. Unless otherwise herein defined, all initially capitalized terms shall have the meanings given to such terms in the Loan Agreement.

NOW, THEREFORE, in consideration of the premises hereof, the sum of $10.00 in hand paid by Lender to Guarantor and for the purpose of inducing Lender to make the Loan to Borrower, Guarantor hereby covenants and agrees as follows:

1.           Limited Recourse Liability . Guarantor hereby jointly and severally, unconditionally and absolutely (i) indemnifies and holds Lender, its officers, directors, shareholders, employees, agents, attorneys, successors and assigns and each of them, jointly and severally, harmless from and against, and (ii) guarantees to Lender the immediate payment for all Enforcement Costs and any and all actual, out of pocket costs, expenses (including Protective Advances), losses and/or damages incurred by Lender as a result of any of the following:

(a)          Fraud, willful misconduct or material misrepresentation made by any of the Borrower Parties in connection with the Application, any of the Loan Documents, or any other supporting or due diligence documentation provided by Borrower, Guarantor or any of the Borrower Parties in connection therewith;

(b)          Failure by Borrower to pay or cause to be paid, any Real Estate Taxes which accrue prior to Lender taking title to the Property, or to pay assessments, charges for labor or materials, or any other charges that could result in Liens on all or any portion of the Property (except (x) for any Permitted Encumbrances, (y) such charges that are bonded off or discharged in accordance with the terms of the Loan Agreement, or (z) to the extent that sums sufficient to pay such amounts have been deposited into a cash collateral account with Lender for the purpose of paying such assessments and charges), provided, however, any such failure shall only trigger recourse liability if at the time of such failure, (A) Borrower had sufficient cash flow (i.e., Borrower has not made any distributions (excluding all commercially reasonable third party operating expenses) from the Property over the previous twelve month period unless Borrower has also reserved funds, on a monthly basis, in an amount that would reasonably be expected to be sufficient to pay such amounts as they become due) from the Property to pay such amounts but failed to do so; or (B) Borrower (x) had insufficient cash flow from the Property to pay such amounts, (y) failed to give Lender immediate written notice that Borrower would have insufficient cash flow from the Property to pay any amounts owed prior to their delinquency, and (z) is not cooperating in good faith with Lender in completing a deed in lieu of foreclosure, at Borrower’s sole cost and expense, to the extent Lender has requested a deed in lieu of foreclosure;

(c)          Misappropriation of: (i) proceeds of insurance received by or on behalf of Borrower covering all or any portion of the Property, (ii) proceeds received by or on behalf of Borrower from the sale or condemnation of all or any portion of the Property, or (iii) rentals or other income from the Property received by or on behalf of Borrower and not applied to satisfy Borrower’s obligations hereunder and/or under the Loan Documents;

(d)          Borrower causing or negligently permitting physical waste, arson or other similar damage to occur in, on or about the Property;

(e)          Failure by Borrower, a Borrower Affiliate or agent of Borrower to pay to Lender all unearned advance rentals and security deposits that have been paid to Borrower, a Borrower Affiliate or agent of Borrower, by tenants of the Property which are not delivered to Lender in accordance with the Loan Documents unless such funds have been refunded to such tenants or were applied in accordance with the terms and conditions of any of the Leases;

(f)          Borrower’s material amendment, modification, renewal (except as may be expressly provided for therein), extension, or termination of any Major Tenant Lease without Lender’s consent, if required pursuant to the terms of the Loan Documents, and the failure to deliver to Lender any Termination Fees (if required pursuant to the terms of the Loan Documents), including any amounts paid in connection with the bankruptcies or insolvencies of such tenants, and Borrower’s failure to assign any claims, proofs of claims or other rights relating to the future right to receive payment of such amounts;

(g)          Loss by fire, casualty, acts of terrorism, or other events, not compensated by insurance proceeds collected by or remitted to Lender as a result of Borrower’s failure to comply with Lender’s insurance requirements (including the payment of any required deductibles);

(h)          Failure by Borrower to return, or cause to be returned, to Lender or reimburse Lender for all Security Property owned by Borrower and taken from the Property by or on behalf of Borrower out of the ordinary course of business and not replaced by items of like or greater value than the original value of the Security Property so removed;

(i)          Any breach of any representation, warranty, covenant or indemnity obligation under the Indemnity Agreement by Borrower or Guarantor;

(j)          Borrower’s failure to timely pay any amounts payable for all state documentary stamp taxes, recording and transfer taxes, and intangible personal property taxes, if any, which may be levied or assessed against the Loan, or any of the Loan Documents, together with all interest, penalties or charges in connection therewith; and

(k)          Borrower’s violation of the terms of the Condominium Documents in any material respect or Borrower’s failure to comply with the terms and conditions of the affirmative and negative covenants described in the Loan Agreement with respect to the Condominium Documents, including, without limitation, (i) without Lender’s prior written consent, Borrower entering into, or consenting to, any amendment of the Condominium Documents that requires the consent of Borrower or that would materially and adversely affect Borrower’s rights as owner of the Property or Lender’s rights as mortgagee, or (ii) without Lender’s prior written consent, Borrower voting to terminate the Condominium or to dissolve the Association for any reason.

The obligations of Borrower in subsections (a) through (k) above shall survive (1) foreclosure under the Security Instrument (or Lender’s acceptance of a deed in lieu thereof); or (2) the satisfaction of all Obligations (including the full repayment of the Loan) under the Loan Documents, but only as to claims, or matters which are based upon or arise out of circumstances or conditions which are first created or which first arise or come into existence prior to the events described in (1) and (2) above. Notwithstanding the foregoing, so long as title to the Property is not transferred pursuant to a foreclosure proceeding (whether judicial or non-judicial), or by deed in lieu of foreclosure or otherwise in connection with any Event of Default before the Loan is indefeasibly paid in full, then one (1) year after the Loan is paid in full Borrower and/or Carveout Guarantor shall have the right by written request to Lender to have the obligations under subsection (i) terminated subject to the satisfaction of the following conditions: (a) the Loan was never in default (beyond the expiration of any applicable notice and cure periods) and Lender never exercised any default remedies, (b) no claim may be lawfully asserted with respect to matters covered by subsection (i) for which Lender is at risk of suffering any costs, expenses, losses and/or damages, (c) no claim with respect to any matters relating to any of the foregoing matters remains pending or unsatisfied in any respect, (d) with respect to the sunset of the environmental indemnities set forth in the Indemnity Agreement, Borrower or Carveout Guarantor has delivered to Lender an environmental report prepared by an environmental engineer approved by Lender showing the Property to be free of recognized environmental conditions (as defined in the current American Society for Testing Materials (ASTM) E1527-13 standard) and not in violation of Environmental Laws as of the date of payoff, (e) with respect to the sunset of the accessibility indemnities set forth in the Indemnity Agreement, Borrower or Carveout Guarantor has delivered to Lender a property condition report prepared by an inspector approved by Lender showing the Property to be in compliance with all Accessibility Laws as of the date of payoff, and (f) Borrower and Carveout Guarantor execute an estoppel certificate reasonably approved by Lender. The burden of proof with regard to establishing the foregoing circumstances shall be upon Borrower. Borrower acknowledges that the foregoing “release rights” are subject to Lender’s final review of the environmental reports and property condition reports in connection with closing the Loan and Lender reserves the right, in its sole discretion, to not offer the “release rights” if the reports indicate negative and adverse findings relative to the substance of the applicable report. Additionally, the obligations of Borrower and Carveout Guarantor in subsections (a) through (h) and (j) above shall be released twelve (12) months after the Loan is indefeasibly paid in full, subject to the following: (i) if at any time any payment of the principal of or interest under the Note or any other amount paid by Borrower or Carveout Guarantor under the Loan Documents is rescinded or must be otherwise restored or returned upon the insolvency, bankruptcy or reorganization of Borrower or otherwise, Borrower’s and Carveout Guarantor’s obligations shall be reinstated; and (ii) the foregoing release shall not apply to Borrower and Carveout Guarantor’s obligation to defend, indemnify and hold Lender harmless from any claims in accordance with the terms of the Loan Documents.

2.           Full Recourse Liability . Guarantor shall be personally, fully and completely liable for the payment of the Note (including all principal, interest and other charges associated therewith) and performance under the Loan Documents in the event that: (a) Borrower or any Person having a direct or indirect ownership interest in Borrower violates the covenants governing the placing of secondary financing pursuant to Sections 4.11(a)(ix), 7.1(m) or 8.1(g) of the Loan Agreement (except as permitted by Section 7.4 of the Loan Agreement), (b) Borrower or any Person having a direct or indirect ownership interest in Borrower violates the covenant restricting Dispositions (other than Permitted Dispositions) pursuant to Article VII of the Loan Agreement, (c) any of the Borrower Parties files a petition in bankruptcy or for the appointment of a receiver, or commences under any bankruptcy or insolvency law, proceedings for any Borrower Parties’ relief or for the compromise, extension, arrangement or adjustment of Borrower Parties’ obligations, (d) there is filed against any of the Borrower Parties a petition in bankruptcy or for the appointment of a receiver (other than a filing instituted by Lender), or there is commenced under any bankruptcy or insolvency law, proceedings for any Borrower Parties’ relief, or for the compromise, extension, arrangement or adjustment of any of the Borrower Parties’ obligations resulting from Borrower’s breach of the Loan Documents or any of the Borrower Parties collusion in an involuntary bankruptcy proceeding filed against any of the Borrower Parties which is not dismissed within one hundred eighty (180) days after the filing of same, (e) there is filed against Borrower any claim by reason of the operation of federal bankruptcy, state insolvency or similar creditors’ rights laws that is based on (i) the Loan being deemed a fraudulent conveyance or fraudulent transfer; or (ii) the Loan being deemed a preferential transfer, (f) in the event any Borrower Parties or any Affiliate thereof challenges or disputes the validity or enforceability of any of the provisions of the Loan Documents following a Material Default, seeks to delay or impair the enforcement of Lender’s remedial rights under the Loan Documents following a Material Default under the Loan Documents, or challenges the validity, enforceability or first priority of the liens and security interests securing payment of amounts owing or payable under the terms of the Loan Documents (unless prior to such challenge Borrower has either commenced turning over all revenue (including any security deposits) from the Property or Borrower has cooperated with the appointment of a receiver to preserve and protect the Property during the pendency of such challenge), or (g) Borrower commits a material violation of Section 4.11 of the Loan Agreement which is a contributing factor in the substantive consolidation of Borrower with another entity.

Lender’s rights under this Guaranty are in addition to all rights of Lender under the Security Instrument and the Loan Documents, and payments by Guarantor under this Guaranty shall not reduce the obligations and liabilities of Borrower under the Note, the Loan Agreement, the Security Instrument or the other Loan Documents; provided, however, this shall not be construed to permit Lender to collect from Borrower for the same obligations or liabilities for which Lender has already received payment from Guarantor. The term “ Guaranteed Obligations ” shall refer to those obligations set forth in Section 1 and Section 2 above.

3.           Nature of Guaranty . This Guaranty is an irrevocable, absolute, continuing guaranty of payment and performance, is joint and several, and is not a guaranty of collection. This Guaranty shall continue to be effective with respect to any of the Guaranteed Obligations arising or created after any attempted revocation by Guarantor and after (if Guarantor is a natural person) Guarantor’s death (in which event this Guaranty shall be binding upon Guarantor’s estate and Guarantor’s legal representatives and heirs until a replacement guarantor has been provided pursuant to Section 20 hereof). Unless agreed to in writing by Lender, liability of Guarantor under this Guaranty shall in no way be limited or impaired by (i) any amendment or modification of the Loan Documents; (ii) any extensions of time for performance required by any of the Loan Documents; (iii) any sale, assignment or foreclosure pursuant to the Loan Documents or any sale or transfer of all or any part of the Property, except as may be released by Lender in connection with a “Permitted Disposition” pursuant to Section 7.2 of the Loan Agreement; (iv) any exculpatory provision in any of the Loan Documents limiting Lender’s recourse to the Property or to any other security, or limiting Lender’s rights to a deficiency judgment against Borrower; (v) the accuracy or inaccuracy of the representations and warranties made by Borrower under the Loan Documents; (vi) the release of Borrower or any other person from performance or observance of any of the agreements, covenants, terms or conditions contained in any of the Loan Documents by operation of law, Lender’s voluntary act, or otherwise; (vii) the release or substitution in whole or in part, of any security for the Note or other evidence of debt issued pursuant to the Loan Documents; or (viii) Lender’s failure to record any of the Loan Documents (or improper recording or filing of any thereof) or to otherwise perfect, protect, secure or insure any security interest or lien given as security for the Note or other evidence of indebtedness under the Loan Documents; and in any of such cases, whether with or without notice to Guarantor and with or without consideration.

4.           Guaranteed Obligations Not Reduced by Offset . The Note, the Guaranteed Obligations, and the liabilities and obligations of Guarantor to Lender hereunder shall not be reduced, discharged or released because or by reason of any existing or future offset, claim or defense (except the defense of payment and performance) of Borrower or any other party against Lender or against payment of the Guaranteed Obligations, whether such offset, claim or defense arises in connection with the Guaranteed Obligations (or the transactions creating the Guaranteed Obligations) or otherwise.

5.           Payment by Guarantor . If all or any part of the Guaranteed Obligations shall not be punctually paid when due, whether at maturity or earlier by acceleration or otherwise, Guarantor shall, immediately upon demand by Lender, and without presentment, protest, notice of protest, notice of non-payment, notice of intention to accelerate the maturity, notice of acceleration of the maturity, or any other notice whatsoever, pay in lawful money of the United States of America, the amount due on the Guaranteed Obligations to Lender at Lender’s address as set forth herein. Such demand(s) may be made at any time coincident with or after the time for payment of all or part of the Guaranteed Obligations and may be made from time to time with respect to the same or different items of Guaranteed Obligations. Such demand shall be deemed made, given and received in accordance with the notice provisions hereof. Any amounts payable to Lender not paid when due as provided in this Section 5 shall bear interest at the Default Rate set forth in the Loan Agreement from and after the date of demand therefor until payment in full.

6.           Waivers . Guarantor hereby waives notice of (a) Lender’s acceptance of this Guaranty; (b) Borrower’s grant to Lender of a security interest, lien or encumbrance in any of Borrower’s assets; (c) Lender’s release, waiver or modification of Borrower’s obligations under the Note or any of the other Loan Documents, any other party’s guarantee of the Note or any security interest, lien or encumbrance in any other party’s assets given to Lender to secure the Note, the other Loan Documents, this Guaranty or any other party’s guarantee; (d) Lender’s amendment of the Note or any other Loan Document or agreement or instrument referred to therein; (e) presentment, demand, notice of default, non-payment, partial payment and protest and all other notices or formalities except as provided herein or in the Loan Documents; (f) extensions of time for payment of the Note or Loan granted to Borrower; and (g) acceptance of any partial payment or payments of the Note or Loan or any collateral securing the payment thereof or the settlement, subordination, discharge or release of the Note or Loan. Guarantor agrees that Lender may have, or at any time may do, any or all of the foregoing actions, in such manner, upon such terms and at such times as Lender, in its sole discretion, deems advisable, without in any way impairing, affecting, reducing or releasing Guarantor from Guarantor’s obligations under this Guaranty, and Guarantor hereby consents to each of the foregoing actions. Guarantor hereby waives (i) any defense at law or in equity based on the adequacy or value of the consideration for this Guaranty, (ii) any right or claim of right to cause a marshaling of the assets of Borrower, and (iii) any right to cause Lender to proceed against any of the security for the Loan before proceeding under this Guaranty against Guarantor or to proceed against Borrower or Guarantor in any particular order. Guarantor further agrees that any payment required to be made hereunder shall become due on demand.

7.           Effect of Bankruptcy . In the event that, pursuant to any insolvency, bankruptcy, reorganization, receivership or other debtor relief law, or any judgment, order or decision thereunder, Lender must rescind or restore any payment, or any part thereof, received by Lender in satisfaction of the Guaranteed Obligations, as set forth herein, any prior release or discharge from the terms of this Guaranty given to Guarantor by Lender shall be without effect, and this Guaranty shall remain in full force and effect. It is the intention of Borrower and Guarantor that Guarantor’s obligations hereunder shall not be discharged except by Borrower’s or Guarantor’s performance of such obligations and then only to the extent of such performance.

8.           Subordination of Subrogation . In consideration of the benefits accruing to Guarantor from Borrower, Guarantor hereby expressly subordinates all rights of subrogation, contribution, indemnification or other similar legal or equitable rights which Guarantor may now or hereafter otherwise be entitled to assert against Borrower, whether arising by contract, by operation of law (including, without limitation, any such right arising under the Bankruptcy Code, as hereinafter defined) or otherwise with respect to or by reason of any payment by Guarantor under this Guaranty or on account of the Loan in connection herewith to, in all respects, the Loan Documents and Guarantor shall not be entitled to enforce (in any manner) or receive payment thereof until the Guaranteed Obligations have been fully satisfied. Guarantor hereby agrees that this Guaranty shall continue to be effective or be reinstated, as the case may be, if at any time payment of any amount due under this Guaranty or otherwise with respect to the Loan is rescinded or must otherwise be restored or returned by Lender upon the insolvency, bankruptcy, receivership, dissolution, liquidation or reorganization of Borrower, upon or as a result of the appointment of a receiver or conservator of, or a trustee or similar officer for, Borrower, or if for any other reason Lender is required to refund such payment or pay the amount thereof to any other Person, all as though such payment had not been made and irrespective of whether such payment is returned to the party who originally made it or some other party, and notwithstanding any prior release, surrender or discharge by Lender of this Guaranty (in whole or in part) or of Guarantor. No payment so refunded or paid to any other Person shall be considered as a payment of any portion of the Indebtedness, nor shall it have the effect of reducing the liability of Guarantor hereunder. To the extent Guarantor has an equity interest in Borrower, Guarantor further agrees with Borrower, for the benefit of each of Borrower’s creditors, whether existing on the day hereof or hereafter arising, that any such payment by Guarantor shall constitute a contribution of capital by Guarantor to Borrower.

9.           Bankruptcy Code Waiver . It is the intention of the parties that the Guarantor shall not be deemed to be a “creditor” or “creditors” (as defined in Section 101 of the United States Bankruptcy Code (the “Bankruptcy Code”)) of Borrower, or any other guarantor, by reason of the existence of this Guaranty, in the event that Borrower or any other guarantor, becomes a debtor in any proceeding under the Bankruptcy Code, and in connection herewith, Guarantor hereby waives any such right as a “creditor” under the Bankruptcy Code. This waiver is given to induce Lender to make the Loan evidenced by the Note to Borrower. After the Loan is paid in full and there shall be no obligations or liabilities under this Guaranty outstanding, this waiver shall be deemed to be automatically terminated.

10.          Enforcement . Guarantor agrees that this Guaranty may be enforced by Lender without first resorting to or exhausting any other security or collateral or without first having recourse to either or both of the Note or any of the property covered by any of the Loan Documents through foreclosure proceedings or otherwise; provided, however, that nothing herein contained shall prevent Lender from suing on the Note or foreclosing the Security Instrument or from exercising any other rights thereunder or under any of the other Loan Documents.

11.          Term . Guarantor agrees that this Guaranty shall survive the repayment and satisfaction of the Loan and shall continue in full force and effect for so long as the exceptions to Borrower’s “non-recourse” liability listed in Article X of the Loan Agreement shall remain in effect with respect to Borrower .

12.          Notice by Guarantor . Guarantor shall promptly after obtaining knowledge thereof advise Lender in writing of (a) any governmental or regulatory actions instituted or threatened in writing affecting the matters indemnified hereunder including, without limitation, any notice of inspection, abatement or noncompliance; and (b) all claims made or threatened in writing by any third party against Borrower or the Property relating to the matters indemnified hereunder. Guarantor shall deliver to Lender any documentation or records Lender reasonably requests and which are susceptible of being obtained by Guarantor without undue cost or expense and without the necessity for initiating legal proceedings to obtain the same in connection with all such notices, inquiries and communications, and shall endeavor to advise Lender of any subsequent developments.

13.          Representations, Warranties and Covenants . To induce Lender to enter into the Loan Documents and extend credit to Borrower, Guarantor represents, and warrants and covenants to Lender, as of the date hereof, as follows:

(a)           Benefit . Guarantor is the owner of a direct or indirect interest in Borrower, and has received, or will receive, direct or indirect benefit from the making of this Guaranty with respect to the Guaranteed Obligations.

(b)           Familiarity and Reliance . Guarantor is familiar with and has independently reviewed books and records regarding the financial condition of Borrower and is familiar with the value of any and all collateral intended to be created as security for the payment of the Note or Guaranteed Obligations; provided, however, Guarantor is not relying on such financial condition or the collateral as an inducement to enter into this Guaranty.

(c)           No Representation by Lender . Neither Lender nor any other party has made any representation, warranty or statement to Guarantor in order to induce Guarantor to execute this Guaranty.

(d)           Guarantor’s Financial Condition . After giving effect to this Guaranty and the contingent obligation evidenced hereby, Guarantor is, and will be, solvent, and has and will have assets which, fairly valued, exceed its obligations, liabilities (including contingent liabilities) and debts, and has and will have property and assets sufficient to satisfy and repay its obligations and liabilities.

(e)           Legality . To Guarantor’s Knowledge, the execution, delivery and performance by Guarantor of this Guaranty and the consummation of the transactions contemplated hereunder do not, and will not, contravene or conflict with any law, statute or regulation whatsoever to which Guarantor is subject or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or result in the breach of, any indenture, mortgage, deed of trust, charge, lien, or any contract, agreement or other instrument to which Guarantor is a party or which may be applicable to Guarantor. This Guaranty is a legal and binding obligation of Guarantor and is enforceable in accordance with its terms, except as limited by bankruptcy, insolvency or other laws of general application relating to the enforcement of creditors’ rights.

(f)           Survival . All representations, warranties and covenants made by Guarantor herein shall survive the execution hereof.

(g)           Review of Documents . Guarantor has examined the Note and all of the Loan Documents.

(h)           Litigation . Except as otherwise disclosed to Lender, there are no proceedings pending or, so far as Guarantor knows, threatened in writing before any court or administrative agency which, if decided adversely to Guarantor, would materially adversely affect the financial condition of Guarantor or the authority of Guarantor to enter into, or the validity or enforceability of this Guaranty.

(i)           Tax Returns . Guarantor has filed all required federal, state and local tax returns and has paid all taxes as shown on such returns as they have become due. No claims have been assessed and are unpaid with respect to such taxes.

(j)           Compliance with Laws . Guarantor is and shall comply with any applicable provisions of the Bank Secrecy Act, the Foreign Corrupt Practices Act or the various sanctions programs administered by Office of Foreign Assets Control.

14.          Financial Reports . Guarantor shall keep adequate books and records of account in accordance with methods acceptable to Lender, consistently applied, and furnish to Lender:

(a)          an annual balance sheet and income statement of Guarantor in the form required by Lender, prepared and certified by Guarantor, within one hundred twenty (120) days after the close of each fiscal year of Guarantor; and

(b)          such other financial information, including federal tax returns filed by Guarantor, as may be reasonably requested by Lender not more than once per calendar year (except during the existence of an Event of Default).

Additionally, Lender shall have the right to request (but under no circumstances more often than once a quarter) and Guarantor shall furnish within fifteen (15) days of such request (so long as same is sixty (60) days or more after the end of such calendar quarter): unaudited financial statements (balance sheets and income) for Carve Out Guarantor, Payment Guarantor, their general partner(s), shareholder(s) or member(s) (whichever may be applicable), and for such other principals of Borrower as designated by Lender. Lender and its accountants shall have the right to examine the records, books, management and other papers of any Guarantor which reflect upon its financial condition, at the Property or at any office regularly maintained by any Guarantor where the books and records are located. Lender and its accountants shall have the right to make copies and extracts from the foregoing records and other papers.

15.          Payment of Lender’s Expenses . Guarantor shall pay to any Lender upon demand all costs and expenses (including the reasonable fees, disbursements and charges of Lender’s attorneys) incurred by Lender (a) in connection with the enforcement of the terms of this Guaranty; or (b) in any litigation, contest, dispute, suit or proceeding (whether instituted by Lender, Guarantor or any other party) in any way relating to this Guaranty and the indemnities described herein.

16.          No Waiver . Guarantor’s obligations hereunder shall in no way be impaired, reduced or released by reason of (a) Lender’s omission or delay to exercise any right described herein; or (b) any act or omission of Lender in connection with any notice, demand, warning or claim regarding violations of codes, laws or ordinances governing the Property.

17.          Notices . Any notice or other communication required or permitted to be given under this Guaranty shall be in writing and either shall be sent by overnight courier service or personally delivered to a representative of the receiving party. All such communications shall be sent or delivered, addressed to the party for whom it is intended at its address set forth below:

Any communication so addressed and sent shall be deemed to have been delivered on the earliest of (1) actual delivery or (2) on the first Business Day after deposit with an overnight courier service, if such deposit is timely and appropriate in accordance with the requirements of such courier service for next business day delivery, in either case to the address of the intended addressee (except as otherwise provided in any Security Instrument), and any communication so delivered in person shall be deemed to be given when receipted for by, or actually received by Lender or any Guarantor, as the case may be. Guarantor or Lender may designate a change of address within the United States of America by written notice to the other by giving at least ten (10) days prior written notice of such change of address .

18.          Amendment and Waiver . This Guaranty may be amended only with written consent of Guarantor and Lender and observance of any term of this Guaranty may be waived only with the written consent of Lender.

19.          Severability . All provisions contained in this Guaranty are severable and the invalidity or unenforceability of any provision shall not affect or impair the validity or enforceability of the remaining provisions of this Guaranty.

20.          Successors and Assigns . Guarantor agrees that this Guaranty shall inure to the benefit of and may be enforced by Lender, its officers, directors, shareholders, employees, agents, attorneys, successors and assigns, and any subsequent holder of the Note and the other Loan Documents, and shall be binding upon and enforceable against Guarantor and Guarantor’s heirs, legal representatives, successors and assigns. Notwithstanding the foregoing, within one hundred twenty (120) days of the death of any Guarantor (if Guarantor is a natural person) a replacement guarantor acceptable to Lender in Lender’s sole reasonable discretion with financials equal to or greater than those of the original Guarantor, as of the Closing Date, shall execute Lender’s then current form of “Carveout Guaranty”, Lender shall receive such information, documentation and opinions as may be required by Lender in connection with such replacement guarantor, and Borrower shall reimburse Lender for all of Lender’s attorneys’ fees, costs and expenses incurred in connection with its review of the proposed replacement guarantor and the documentation of any substitution, whether or not Lender approves the proposed replacement guarantor. Notwithstanding anything to the contrary contained herein, but subject to Lender’s sole discretion and approval, Guarantor shall have the right to transfer its obligations under this Guaranty to a replacement guarantor that meets Lender’s then current underwriting standards for guarantors (including, but not limited to, (i) creditworthiness, (ii) financial condition; (iii) compliance with any applicable provisions of the Bank Secrecy Act, the Foreign Corrupt Practices Act or the various sanctions programs administered by the Office of Foreign Assets Control; and (iv) not having a prior negative guaranteeing history), as and when provided in, and subject to the applicable terms and conditions of the Loan Agreement, and upon such assumption by the replacement guarantor, the original Guarantor shall be automatically released from its liabilities and obligations hereunder from the date of such assumption and afterwards.

21.          Headings . The descriptive headings of the paragraphs of this Guaranty are inserted for convenience only and do not constitute a part of this Guaranty.

22.          Jurisdiction and Venue . EACH OF LENDER AND GUARANTOR, TO THE FULL EXTENT PERMITTED BY LAW, HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, WITH AND UPON THE ADVICE OF COMPETENT COUNSEL, WAIVE, RELINQUISH AND FOREVER FORGO HEREBY THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING, INCLUDING, WITHOUT LIMITATION, ANY TORT ACTION, AGAINST THE OTHER PARTY, ITS SUCCESSORS AND ASSIGNS, BASED UPON, ARISING OUT OF, OR IN ANY WAY RELATING TO OR IN CONNECTION WITH ANY OF THE LOAN DOCUMENTS, THE LOAN OR ANY COURSE OF CONDUCT, ACT, OMISSION, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF ANY PERSON (INCLUDING, WITHOUT LIMITATION, LENDER’S DIRECTORS, OFFICERS, PARTNERS, MEMBERS, EMPLOYEES, AGENTS OR ATTORNEYS, OR ANY OTHER PERSONS AFFILIATED WITH THE OTHER PARTY), IN CONNECTION WITH THE LOAN OR THE LOAN DOCUMENTS, INCLUDING, WITHOUT LIMITATION, IN ANY COUNTERCLAIM WHICH ANY PARTY MAY BE PERMITTED TO ASSERT THEREUNDER, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE. IN NO EVENT SHALL LENDER, ITS SUCCESSORS, ASSIGNS OR PARTICIPANTS BE LIABLE FOR SPECIFIC PERFORMANCE, ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION LOSS OF BUSINESS PROFITS OR OPPORTUNITY) AND BY ITS EXECUTION HEREOF, GUARANTOR WAIVES ANY RIGHT TO CLAIM OR SEEK ANY SUCH DAMAGES. This Guaranty and the rights and obligations of the parties hereunder shall be governed by and construed in accordance with the internal laws of the State (as defined in the Loan Agreement), without regard to principles of conflicts of laws. The parties hereto irrevocably (a) agree that any suit, action or other legal proceeding arising out of or relating to this Guaranty may be brought in a court of record in the State or in the courts of the United States of America located in such State, (b) consent to the non-exclusive jurisdiction of each such court in any suit, action or proceeding, and (c) waive any objection which it may have to the laying of venue of any such suit, action or proceeding in any of such courts and any claim that any such suit, action or proceeding has been brought in an inconvenient forum. If any clauses or provisions herein contained operate, or would prospectively operate, to invalidate this Guaranty, then such clauses or provisions only shall be held for naught, as though not herein contained, and the remainder of this Guaranty shall remain operative and in full force and effect.

23.          Consent to Service of Process . Guarantor irrevocably and unconditionally consents to service of process in the manner provided for notices in Section 17 hereof, but nothing in this Guaranty will affect Lender’s right to serve process in any other manner permitted by law.

24.          Personal Liability . Guarantor hereby acknowledges and agrees that notwithstanding any other provision of this Guaranty, the Note, the Security Instrument or any of the other Loan Documents to the contrary, the obligations of Guarantor under this Guaranty shall be unlimited and unconditional personal obligations, and that Lender would not enter into the Loan but for the personal liability undertaken by Guarantor under this Guaranty.

25.          Parties in Interest . Nothing in this Guaranty, whether express or implied, is intended to confer any rights or remedies under or by reason of this Guaranty on any persons other than the parties to it and their respective heirs, personal representatives, successors and assigns, nor is anything in this Guaranty intended to relieve or discharge the obligation or liability of any third persons to any party to this Guaranty, nor shall any provision give any third persons any right of subrogation or action over or against any party to this Guaranty.

26.          Multiple Parties and Joint and Several Liability . Where two or more persons or entities have executed this Guaranty, unless the context clearly indicates otherwise, all references herein to “Guarantor” shall mean the guarantors hereunder or either of them. All obligations and liability of said guarantors shall be joint and several.

27.          Counterparts . This Guaranty may be signed in any number of counterpart copies and by the parties hereto on separate counterparts, but all such copies shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page to this Guaranty by electronic transmission shall be effective as delivery of a manually executed counterpart. Any party so executing this Guaranty by electronic transmission shall promptly deliver a manually executed counterpart, provided that any failure to do so shall not affect the validity of the counterpart executed by electronic transmission.

28.          Exculpation . Notwithstanding anything to the contrary contained in this Guaranty or in the other Loan Documents, no principal, director, officer, employee, advisor, beneficiary, shareholder, partner, manager, member, trustee, agent or Affiliate of Guarantor (each an “ Exculpated Party ”; and collectively, the “ Exculpated Parties ”) shall have any personal liability for, nor be joined as a party with respect to (i) the payment of any sum of money which is or may be payable hereunder or under any other Loan Documents, including, but not limited to, the repayment of the Indebtedness or (ii) the performance or discharge of any covenants, obligations or undertakings of Guarantor or any Exculpated Party with respect thereto. In addition to the foregoing, anything in this Guaranty or the other Loan Documents notwithstanding, in no event will the assets of any Exculpated Party be available to satisfy the obligations of Guarantor hereunder.

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[ Signature Page to Carveout Guaranty ]

IN WITNESS WHEREOF, Guarantor has executed this Guaranty as of the day and year first above written.