Broad Street Realty, Inc. (Form: 8-K, Received: 12/27/2019 17:25:01)

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d)

of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): December 27, 2019

BROAD STREET REALTY, INC.

(Exact name of registrant as specified in its charter)

Delaware

(State or other jurisdiction

of incorporation)

001-09043

(Commission

File Number)

36-3361229

(IRS Employer

Identification No.)

7250 Woodmont Ave, Suite 350

Bethesda, Maryland

(Address of principal executive offices)

20814

(Zip Code)

Registrant’s telephone number, including area code: 301-828-1200

MedAmerica Properties Inc.

Boca Center, Tower 1, 5200 Town Center Circle,

Suite 550,

Boca Raton, Florida 33486

(Former name or former address, if changed since last report)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

☐	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

☐	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

☐	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

☐	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Securities registered pursuant to Section 12(b) of the Securities Act:

Title of each class		Trading Symbol(s)		Name of each exchange on which registered
None		N/A		N/A

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging growth company ☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐

Explanatory Note

As described in its Current Report on Form 8-K filed on May 31, 2019, MedAmerica Properties Inc. (the “Company” or “MedAmerica”) and certain of its newly formed subsidiaries described further below entered into 19 separate agreements and plans of merger (collectively, as amended, the “Merger Agreements”) with each of Broad Street Realty, LLC (“BSR”), Broad Street Ventures, LLC (“BSV”) and each of BSV Avondale LLC, BSV Colonial Investor LLC, BSV Coral Hills Investors LLC, BSV Crestview Square LLC, BSV Cromwell Parent LLC, BSV Cypress Point Investors LLC, BSV Dekalb LLC, BSV Greenwood Investors LLC, BSV Highlandtown Investors LLC, BSV Hollinswood LLC, BSV Lamont Investors LLC, BSV Lamonticello Investors LLC, BSV LSP East Investors LLC, BSV Patrick Street Member LLC, BSV Premier Brookhill LLC, BSV Spotswood Investors LLC and BSV West Broad Investors LLC (collectively, the “Broad Street Entities”). The transactions contemplated by the Merger Agreements are referred to collectively as the “Mergers.”

On December 27, 2019, pursuant to certain of the Merger Agreements involving the parties described below (the “Initial Merger Agreements”), the Company completed the previously announced mergers of certain of its subsidiaries with each of BSR, BSV, BSV Coral Hills Investors LLC, BSV Avondale LLC, BSV Crestview Square LLC, BSV Dekalb LLC, BSV Hollinswood LLC, BSV Colonial Investor LLC, BSV Lamonticello Investors LLC, BSV Patrick Street Member LLC and BSV West Broad Investors LLC (collectively, the “Initial Broad Street Entities”), in each case, with the Initial Broad Street Entity surviving. As consideration for the mergers contemplated by the Initial Merger Agreements (the “Initial Mergers”), the Company issued an aggregate of 16,006,149 shares of its common stock, $0.01 par value per share (“Common Stock”), and Broad Street Operating Partnership, LP (the “Operating Partnership”) issued an aggregate of 2,827,904 units of limited partnership interest (“OP Units”) to the investors in the Initial Broad Street Entities. In addition, prior investors in the Broad Street Entities received an aggregate of $0.9 million in cash as a portion of the consideration for the Initial Mergers.

As a result of the Initial Mergers, the Company acquired the nine properties listed in the table below (the “Initial Properties”) and succeeded to the business of BSR, including its commercial brokerage, property management and development businesses. In addition, all of BSR’s employees are now employees of the Company or its subsidiaries. The following table provides information about the Initial Properties, which are primarily grocery-anchored neighborhood shopping center properties.

Property Name	City/State	Gross Leasable Area
Avondale Shops	Washington, D.C.		28,044
Coral Hills Shopping Center	Capitol Heights, MD		85,928
Crestview Square	Landover Hills, MD		74,279
Dekalb Plaza	East Norriton, PA		178,815
Hollinswood Shopping Center	Baltimore, MD		112,580
Midtown Colonial	Williamsburg, VA		98,043
Midtown Lamonticello	Williamsburg, VA		79,509
Vista Shops at Golden Mile	Frederick, MD		98,885
West Broad Commons	Richmond, VA		109,551
Total			865,634

Immediately prior to the completion of the Initial Mergers, the Company filed an amendment to its certificate of incorporation to change its name to Broad Street Realty, Inc. In addition, prior to the completion of the Initial Mergers, the Company engaged in certain transitions pursuant to which it was restructured as an “Up-C” corporation. The Company formed the Operating Partnership, Broad Street OP GP, LLC (the “General Partner”) and certain other subsidiaries of the Company related to the facilitation of the Initial Mergers (collectively, the “Merger Subs”). The Company, prior to the issuance of the OP Units in connection with the Initial Mergers, was the sole initial limited partner of the Operating Partnership and the General Partner, which is a wholly owned subsidiary of the Company, serves as the general partner of the Operating Partnership. Prior to the completion of the Initial Mergers, the Company contributed all of its assets, including its equity interests in its subsidiaries (other than its equity interests in the General Partner, the Operating Partnership and the Merger Subs) to the Operating Partnership in exchange for OP Units.

In addition, prior to the closing of the Initial Mergers and as described further under “Sub-OP Operating Agreement” in Item 1.01 below, the Operating Partnership formed a new subsidiary, Broad Street Big First OP LLC (the “Sub-OP”). Immediately following the closing of the Initial Mergers, the Company and the Operating Partnership contributed their interests in each of the Initial Broad Street Entities (other than BSR and BSV) to the Sub-OP. As a result, the Initial Properties are indirectly owned by the Sub-OP.

As of the completion of the Initial Mergers, prior investors in the Initial Broad Street Entities collectively own 85.1% of the shares of Common Stock of the Company and previously existing MedAmerica stockholders own 14.9%. The Company owns an 86.9% interest in the Operating Partnership and investors in the Initial Broad Street Entities receiving OP Units as consideration for the Initial Mergers collectively own a 13.1% interest in the Operating Partnership as of the completion of the Initial Mergers. Commencing on the 12-month anniversary of the date on which the OP Units are issued, each limited partner of the Operating Partnership (other than the Company) will have the right, subject to certain terms and conditions, to require the Operating Partnership to redeem all or a portion of the OP Units held by such limited partner in exchange for cash based on the market price of the Common Stock or, at the Company’s option and sole discretion, for shares of Common Stock on a one-for-one basis.

Following the completion of the remaining eight Mergers, investors in BSR, BSV and the Broad Street Entities collectively will own 91.5% of the shares of Common Stock of the Company and previously existing MedAmerica stockholders will own 8.5%. The Company will own a 90.6% interest in the Operating Partnership and investors in BSR, BSV and the Broad Street Entities receiving OP Units as consideration for the Mergers collectively will own a 9.4% interest in the Operating Partnership.

The Company can provide no assurances as to the timing of the closing of the additional Mergers or whether such Mergers will close at all.

On December 27, 2019, the Company issued a press release announcing the closing of the Initial Mergers. A copy of the press release is attached hereto as Exhibit 99.1.

Item 1.01. Entry into a Material Definitive Agreement.

Basis Loan Agreement

On December 27, 2019, in connection with the closing of the Initial Mergers, each of BSV Colonial Owner LLC, BSV Lamonticello Owner LLC, BSV Dekalb LLC, BSV Crestview Square LLC, BSV Coral Hills LLC and BSV West Broad Commons LLC, each of which is an indirect subsidiary of the Company, as borrowers (collectively, the “Borrowers”), and Big Real Estate Finance I, LLC, a subsidiary of a real estate fund managed by Basis Management Group, LLC, as lender (the “Basis Lender”), entered into a loan agreement (the “Basis Loan Agreement”) pursuant to which the Basis Lender made a senior secured term loan of up to $66.9 million (the “Basis Term Loan”) to the Borrowers, of which $63.8 million was drawn at closing. Pursuant to the Basis Loan Agreement, the Basis Term Loan is secured by mortgages on the following properties that were acquired in connection with the closing of the Initial Mergers: Coral Hills, Crestview, Dekalb, Midtown Colonial, Midtown Lamonticello and West Broad. The Basis Term Loan matures on January 1, 2023, subject to two one-year extension options, subject to certain conditions. The Basis Term Loan bears interest at a rate equal to the greater of (i) LIBOR plus 3.850% per annum and (ii) 6.125% per annum. The Borrowers have entered into an interest rate cap that effectively caps LIBOR at 3.50% per annum.

The Company used the proceeds from the Basis Term Loan to repay indebtedness securing properties acquired in the Initial Mergers and for general corporate purposes, including the payment of certain transaction costs.

The Borrowers’ obligations under the Basis Loan Agreement are guaranteed by the Company and by Michael Z. Jacoby, the Company’s chairman and chief executive officer, and Thomas M. Yockey, a director of the Company. The Company has agreed to indemnify Mr. Yockey for any losses he incurs as a result of his guarantee of the Basis Term Loan.

The Basis Loan Agreement contains certain customary representations and warranties and affirmative negative and restrictive covenants, including certain property related covenants for the properties owned by the Sub-OP, including a requirement that certain capital improvements be made. The Basis Lender has certain approval rights over amendments or renewals of material leases (as defined in the Basis Loan Agreement) and property management agreements for the properties securing the Basis Term Loan.

If (i) an event of default exists, (ii) BSR or any other subsidiary of the Company serving as property manager for one of the secured parties becomes bankrupt, insolvent or a debtor in an insolvency proceeding, or there is a change of control of BSR or such other subsidiary without approval by the Basis Lender, (iii) a default occurs under the applicable management agreement, (iv) the property manager has engaged in fraud, willful misconduct, misappropriation of funds or is grossly negligent with regard to the applicable property, the Basis Lender may require a Borrower to replace BSR or such other subsidiary of the Company as the property manager and hire a third party manager approved by the Basis Lender to manage the applicable property.

The Borrowers are generally prohibited from selling the properties securing the Basis Term Loan and the Company is prohibited from transferring any interest in any of the Borrowers, in each case without consent from the Basis Lender. The Company is prohibited from engaging in transactions that would result in a Change in Control (as defined in the Basis Loan Agreement) of the Company. Under the Basis Loan Agreement, among other things, it is deemed a Change in Control if Michael Z. Jacoby ceases to be the chairman and chief executive officer of the Company and actively involved in the daily activities and operations of the Company and the Borrowers and a competent and experienced person is not approved by the Basis Lender to replace Mr. Jacoby within 90 days of him ceasing to serve in such roles.

The Basis Loan Agreement provides for standard events of default, including nonpayment of principal and other amounts when due, non-performance of covenants, breach of representations and warranties, certain bankruptcy or insolvency events and changes in control. If an event of default occurs and is continuing under the Basis Loan Agreement, the Basis Lender may, among other things, require the immediate payment of all amounts owed thereunder.

In addition, if there is a default by the Company under the MVB Loan (as defined below), by Mr. Jacoby under his guarantee of the MVB Loan or by Mr. Jacoby under a certain personal loan as long as he has pledged OP Units as collateral for such loan, and such default has not been waived or cured, then the Basis Lender will have the right to sweep the Borrowers’ cash account in which collects retains rental payments from the properties securing the Basis Term Loan on a daily basis in order for the Basis Lender to create a cash reserve that will serve as collateral for the Basis Term Loan.

The foregoing description of the Basis Loan Agreement does not purport to be complete and is qualified in its entirety by reference to the Basis Loan Agreement, which is filed as Exhibit 10.1 hereto and incorporated herein by reference.

Sub-OP Operating Agreement

On December 27 , 2019, in connection with the closing of the Initial Mergers, the Operating Partnership and Big BSP Investments, LLC, a subsidiary of a real estate fund managed by Basis Management Group, LLC (the “Preferred Investor”), entered into an amended and restated operating agreement of the Sub-OP (the “Operating Agreement”). Pursuant to the Operating Agreement, among other things, the Preferred Investor committed to make an investment of up to $10.7 million in the Sub-OP, of which $6.9 million was funded in connection with the closing of the Initial Mergers, in exchange for a 1.0% membership interest in the Sub-OP designated as Class A units.

Pursuant to the Operating Agreement, the Preferred Investor is entitled to a cumulative annual return of 14.0% on its initial capital contribution (the “Class A Return”), and the Preferred Investor will be entitled to a 20% return (the “Enhanced Class A Return”) on any additional capital contribution made to the Sub-OP. The Preferred Investor’s interests must be redeemed on or before the earlier of: (i) January 1, 2023 and (ii) the date on which the Basis Term Loan is paid in full (the “Redemption Date”). The Redemption Date may be extended to December 31, 2023 and December 31, 2024, in each case subject to certain conditions, including the payment of a fee equal to 0.25% of the Preferred Investor’s net invested capital for the first extension option and a fee of 0.50% of the Preferred Investor’s net invested capital for the second extension option. If the redemption price is paid on or before the Redemption Date, then the redemption price will be equal to (a) all unreturned capital contributions made by the Preferred Investor, (b) all accrued but unpaid Class A Return, (c) all accrued but unpaid Enhanced Class A Return and (d) all costs and other expenses incurred by the Preferred Investor in connection with the enforcement of its rights under the Operating Agreement.

The Operating Partnership serves as the managing member of the Sub-OP. However, the Preferred Investor has approval rights over certain major decisions (as defined in the Operating Agreement), including, but not limited to, (i) the incurrence of new indebtedness or modification of existing indebtedness by the Sub-OP or its direct or indirect subsidiaries, (ii) capital expenditures over $250,000, (iii) any proposed change to a property directly or indirectly owned by the Sub-OP, (iv) direct or indirect acquisitions of new properties, (v) the sale or other disposition of any property directly or indirectly owned by the Sub-OP, (v) the issuance of additional membership interests in the Sub-OP, (vi) the entry into any new material lease or any amendment to an existing material lease and (vii) decisions regarding the dissolution, winding up or liquidation of the Sub-OP or the filing of any bankruptcy petition by the Sub-OP.

Under certain circumstances, including in the event that the Preferred Investor’s interests are not redeemed on or prior to the Redemption Date (as it may be extended), the Preferred Investor may remove the Operating Partnership as the manager of the Sub-OP and as the manager for each of the property owning entities held under the Sub-OP.

The obligations of the Operating Partnership under the Operating Agreement are guaranteed by the Company, Michael Z. Jacoby, the Company’s chairman and chief executive officer, and Thomas M. Yockey, a director of the Company. The Company has agreed to indemnify Mr. Yockey for any losses he incurs as a result of this guarantee.

The foregoing description of the Operating Agreement does not purport to be complete and is qualified in its entirety by reference to the Operating Agreement, which is filed as Exhibit 10.2 hereto and incorporated herein by reference.

MVB Loan

On December 27, 2019, in connection with the closing of the Initial Mergers, the Company, the Operating Partnership and BSR entered into a loan agreement (the “MVB Loan Agreement”) with MVB Bank, Inc. (“MVB”) with respect to a $6.5 million loan consisting of a $4.5 million term loan (the “MVB Term Loan”) and a $2.0 million revolving credit facility (the “MVB Revolver”). The MVB Term Loan matures on December 27, 2022 and the MVB Revolver matures on December 27, 2020. Both the MVB Term Loan and the MVB Revolver have a fixed interest rate of 6.75% per annum.

The MVB Term Loan and the MVB Revolver were fully drawn at closing.

The MVB Loan Agreement is secured by certain personal property of the Company, the Operating Partnership and BSR. In addition, Mr. Jacoby has pledged the shares of Common Stock and OP Units received as consideration in the Initial Mergers as collateral under the MVB Loan Agreement. The obligations of the Company and the Operating Partnership under the MVB Loan Agreement are guaranteed by a subsidiary of the Company and Michael Z. Jacoby, in his individual capacity.

The MVB Loan Agreement contains certain customary representations and warranties and affirmative and negative covenants. The MVB Loan Agreement also requires the Company to maintain (as such terms are defined in the MVB Loan Agreement) (i) a debt service coverage ratio of at least 1.30 to 1.00, (ii) an EBITDA to consolidated funded debt ratio of less than 8.0% and (iii) an aggregate minimum unencumbered cash, including funds available under other lines of credit, of greater than $5.0 million.

The MVB Loan Agreement provides for standard events of default, including nonpayment of principal and other amounts when due, non-performance of covenants, breach of representations and warranties, certain bankruptcy or insolvency events and changes in control. If an event of default occurs and is continuing under the MVB Loan Agreement, MVB may, among other things, require the immediate payment of all amounts owed thereunder.

The foregoing description of the MVB Loan Agreement does not purport to be complete and is qualified in its entirety by reference to the MVB Loan Agreement, which is filed as Exhibit 10.3 hereto and incorporated herein by reference.

Tax Protection Agreements

On December 27, 2019, pursuant to the Merger Agreements, the Company and the Operating Partnership entered into tax protection agreements (the “Tax Protection Agreements”) with each of the prior investors in BSV Colonial Investor LLC, BSV Lamonticello Investors LLC and BSV Patrick Street Member LLC, including Michael Z. Jacoby, Thomas M. Yockey and Alexander Topchy, in connection with their receipt of OP Units in certain of the Initial Mergers. Pursuant to the Tax Protection Agreements, until the seventh anniversary of the completion of the Initial Mergers, the Company and the Operating Partnership may be required to indemnify the other parties thereto for their tax liabilities related to built-in gain that exists with respect to the properties known as Midtown Colonial, Midtown Lamonticello and Vista Shops at Golden Mile (the “Protected Properties”). Furthermore, until the seventh anniversary of the completion of the Initial Mergers, the Company and the Operating Partnership will be required to use commercially reasonable efforts to avoid any event, including a sale of the Protected Properties, that triggers built-in gain to the other parties to the Tax Protection Agreements, subject to certain exceptions, including like-kind exchanges under Section 1031 of the Internal Revenue Code.

The foregoing description of the Tax Protection Agreements is qualified in its entirety by reference to the Tax Protection Agreements, which are filed as Exhibits 10.4, 10.5 and 10.6 hereto and incorporated herein by reference.

Amendments to Merger Agreements

On December 27, 2019, the Company, the Operating Partnership, certain of their subsidiaries and each of, BSV Cromwell Parent LLC, BSV Cypress Point Investors LLC, BSV Greenwood Investors LLC, BSV Highlandtown Investors LLC, BSV Lamont Investors LLC, BSV LSP East Investors LLC, BSV Premier Brookhill LLC and BSV Spotswood Investors LLC entered into amendments to the Merger Agreements to which such entities are party (the “Amendments”) with respect to the Mergers other than the Initial Mergers. The Amendments amend such Merger Agreements in order to extend the outside date for the closing of the additional Mergers to March 31, 2020.

The foregoing description of the Amendments is qualified in its entirety by reference to the Amendments, which are filed as Exhibits 10.7, 10.8, 10.9, 10.10, 10.11, 10.12, 10.13 and 10.14 and incorporated herein by reference.

Item 2.01 Completion of Acquisition or Disposition of Assets

The information included in the “Explanatory Note” above regarding the completion of the Initial Mergers is incorporated into this Item 2.01 by reference.

Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

The description of the Basis Loan Agreement and the MVB Loan Agreement set forth under Item 1.01 above is incorporated into this Item 2.03 by reference.

Item 3.02.

Unregistered Sales of Equity Securities.

The information in under the “Explanatory Note” above regarding the agreement to issue shares of Common Stock and OP Units in the Initial Mergers is incorporated into this Item 3.02 by reference. The shares of Common Stock and OP Units were issued upon the closing of the Initial Mergers pursuant to exemptions from registration under Section 4(a)(2) of the Securities Act of 1933, as amended (the “Securities Act”), and/or Rule 506 of Regulation D thereunder. Issuances of Common Stock and OP Units were only made to investors in BSR, BSV and the Initial Broad Street Entities who qualify as “accredited investors” as defined under the Securities Act.

In addition, in connection with the closing of the Initial Mergers, the Company issued 200,000 shares of Common Stock to Boca Equity Partners LLC (“BEP”), an affiliate of Gary O. Marino, the Company’s former chairman, as consideration for certain obligations owed by the Company to BEP. The shares of Common Stock issued to BEP were issued pursuant to an exemption from registration under Section 4(a)(2) of the Securities Act.

Item 4.01. Changes in Registrant’s Certifying Accountant

(a)

Dismissal of Registrant’s Certifying Accountant.

On December 27, 2019, the Company’s board of directors dismissed Marcum LLP (“Marcum”) as the Company’s independent registered public accounting firm effective as of that date.

The audit reports of Marcum on the Company’s financial statements for each of the two fiscal years ending December 31, 2018 and December 31, 2017 did not contain any adverse opinion or disclaimer of opinion, nor were they qualified or modified as to uncertainty, audit scope or accounting principles. In addition, during the fiscal years ended December 31, 2018 and December 31, 2017, as well as during the subsequent interim period preceding December 27, 2019, there were no (i) “disagreements” (as that term is defined in Item 304(a)(1)(iv) of Regulation S-K and related instructions) between the Company and Marcum with respect to any matter relating to accounting principles or practices, financial statement disclosure or auditing scope or procedures which, if not resolved to the satisfaction of Marcum, would have caused Marcum to make reference to the subject matter of the disagreement in its reports on the Company’s financial statements with respect to such periods; or (ii) “reportable events” (as that term is defined in Item 304(a)(1)(v) of Regulation S-K and the related instructions).

The Company has provided Marcum with a copy of this Current Report on Form 8-K and requested that Marcum provide the Company with a letter addressed to the Securities and Exchange Commission (the “SEC”) stating whether or not Marcum agrees with the above disclosures under this Item 4.01. A copy of Marcum’s letter dated December 27, 2019 is attached hereto as Exhibit 16.1.

(b)

Appointment of New Certifying Accountant.

On December 27, 2019, upon completion of the Initial Mergers, the Company engaged BDO USA, LLP (“BDO”) as its new independent registered public accounting firm upon approval of the Company’s board of directors. During the years ended December 31, 2018 and December 31, 2017, and the subsequent interim period through December 27, 2019, the effective date of the Company’s engagement of BDO, the Company did not consult with BDO regarding any of the matters or events set forth in Items 304(a)(2)(i) or (ii) of Regulation S-K. Prior to the completion of the Initial Mergers, BDO served as the auditor of the Initial Broad Street Entities.

Item 5.01 Change in Control of the Registrant.

The information included in the “Explanatory Note” above and under Item 5.02 below with respect to the changes in the Company’s board of directors is incorporated into this Item 5.01 by reference. In addition, pursuant to the Merger Agreements, until the first anniversary of the last closing under the Merger Agreements, the Company is required to nominate Joseph R. Bencivenga and Vineet P. Bedi as directors at any annual meeting of the Company’s stockholders.

Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

Changes in the Board of Directors

On December 27, 2019, effective immediately prior to the effective time of the Initial Mergers, Donald S. Denbo, Paul S. Dennis, Gary O. Marino and Bennet Marks resigned from the Company’s board of directors. Such resignations were made in accordance with the terms of the Merger Agreements and were not the result of any disagreement with the Company.

Effective immediately prior to the effective time of the Initial Mergers, the Company’s board of directors increased the size of the board by one from six directors to seven directors. In accordance with the terms of the Merger Agreements, BSR had the right to fill the five vacancies created as a result of the resignations and increase in the size of the board of directors described above. The board of directors, at the direction of BSR in accordance with the Merger Agreements, filled the vacancies by appointing Michael Z. Jacoby, Thomas M. Yockey, Jeffrey H. Foster, Daniel J.W. Neal and Samuel M. Spiritos with such appointments effective as of the effective time of the Initial Mergers. Joseph R. Bencivenga and Vineet P. Bedi will remain on the Company’s board of directors. In addition, the board of directors has appointed Mr. Jacoby as chairman of the board.

As previously disclosed, concurrently with the entry into the Merger Agreements, Messrs. Jacoby and Yockey entered into a representation, warranty and indemnification agreement (the “Representation, Warranty and Indemnification Agreement”) with MedAmerica and the Operating Partnership, pursuant to which they have agreed to indemnify the Company and the Operating Partnership for certain breaches of the representations and warranties of BSR, BSV and the Broad Street Entities contained in the Merger Agreements for a period of one year following the closing of the Mergers, subject to certain exception and limitations. In addition, as described above under Item 1.01, Messrs. Jacoby and Yockey have agreed to individually guarantee certain obligations of the Borrowers and the Operating Partnership under the Basis Loan Agreement and the Operating Agreement. Mr. Yockey also has entered into an agreement with the Company pursuant to which the Company has agreed to indemnify Mr. Yockey for any losses he incurs as a result of his guarantees under the Basis Loan Agreement and the Operating Agreement.

As consideration in the Initial Mergers as a result of their interests in the Initial Broad Street Entities, (i) Mr. Jacoby received 1,645,576 shares of Common Stock and 856,805 OP Units, (ii) Mr. Yockey received 1,645,576 shares of Common Stock and 420,523 OP Units and (iii) Mr. Neal received, directly or indirectly, 419,711 shares of Common Stock. As consideration in the remaining eight Mergers as a result of their interests in the remaining Broad Street Entities, (i) Mr. Jacoby will receive an aggregate of approximately 905,974 shares of Common Stock and 136,213 OP Units, (ii) Mr. Yockey will receive an aggregate of approximately 905,974 shares of Common Stock and 136,213 OP Units and (iii) Mr. Neal will receive, directly or indirectly, an aggregate of approximately 327,859 shares of Common Stock.

In addition, as described above, Messrs. Jacoby and Yockey entered into the Tax Protection Agreements with the Company and the Operating Partnership.

Changes in Executive Officers

On December 27, 2019, effective immediately prior to the effective time of the Initial Mergers, Joseph R. Bencivenga resigned as the Company’s chief executive officer, Robert Schellig resigned as the Company’s senior vice president and general counsel and Patricia K. Sheridan resigned as the Company’s chief financial officer. In accordance with the Merger Agreements, effective as of the effective time of the Initial Mergers, Michael Z. Jacoby was appointed as the Company’s chief executive officer and Alexander Topchy was appointed as the Company’s chief financial officer.

As consideration in the Initial Mergers as a result of his interests in the Initial Broad Street Entities, Mr. Topchy received an aggregate of 86,459 shares of Common Stock and 48,320 OP Units. As consideration in the remaining seven Mergers as a result of his interests in the remaining Broad Street Entities, Mr. Topchy will receive 52,810 shares of Common stock and 14,338 OP Units. In addition, as described above, Mr. Topchy entered into the Tax Protection Agreements with the Company and the Operating Partnership.

Except as described herein, none of the newly appointed executive officers nor members of their immediate families has or had an indirect interest in any transaction in which the Company or its subsidiaries is or was a participant that is required to be disclosed under Item 404(a) of Regulation S-K.

For more information about the Company’s directors and officers, please see “Directors and Executive Officers—Directors and Executive Officers after the Mergers” in the Company’s Schedule 14F-1 that was filed with the SEC on October 31, 2019.

Employment Agreements

On December 27, 2019, Mr. Jacoby and Mr. Topchy entered into employment agreements with the Company and the Operating Partnership.

The employment agreements each have initial three-year terms with automatic one-year renewals thereafter, unless the executive or the Company provides timely notice of non-renewal to the other party. Mr. Jacoby’s employment agreements provides for a base salary of $400,000 per year and Mr. Topchy’s employment agreement provides for a base salary of $215,000, both of which may be adjusted from time to time. Each employment agreement provides the executive with an annual bonus opportunity, which may be adjusted annually thereafter at the discretion of the Company’s compensation committee, or by the board of directors in the absence of a compensation committee. Pursuant to the employment agreements, the executives will be eligible to receive an annual bonus based on achievement of performance objectives to be established by the Company’s compensation committee, or by the board of directors in the absence of a compensation committee. The executive will also be eligible to receive equity-based incentives, as determined by the compensation committee, or by the board of directors in the absence of a compensation committee, and participate in other compensatory and benefit plans generally available to all employees.

The employment agreements provide that, if the executive’s employment is terminated:

●

by the Company for “cause” (as defined in the employment agreements), by the executive without “good reason” (as defined in the employment agreements), as a result of a non-renewal of the employment term by the executive, or due to the executive’s death, then the executive will receive the following payments (the “Accrued Benefits”): (i) all accrued but unpaid wages through the termination date; (ii) all accrued but unused vacation through the termination date; and (iii) all approved, but unreimbursed, business expenses;

●

by the Company without “cause,” by the executive for “good reason,” or as a result of a non-renewal of the employment term by us, then the executive will receive (in addition to the Accrued Benefits): (i) any earned but unpaid bonus relating to the bonus year completed prior to the date of termination; (ii) COBRA continuation coverage premiums required for the coverage of the executive (and his eligible dependents) under the Company’s medical group health plan for a period of 18 months, or until the executive is employed by a third party that provides comparable coverage at no cost to the executive; and (iii) a separation payment payable in equal installments over a period of 12 months following the termination equal to the sum of three times (3x) for Mr. Jacoby, and two times (2x) for Mr. Topchy of their (A) then current base salary and (B) average annual bonus for the two completed annual bonus periods immediately preceding the termination (if the termination occurs before completion of two years, the bonus amount is based on the executive’s target bonus for any non-completed fiscal year, together, if applicable, with the annual bonus earned for any completed year, with partial year amounts annualized); or

●

due to the executive’s “disability” (as defined in the employment agreements), then the executive (or his estate and/or beneficiaries, as the case may be) will receive (in addition to the Accrued Benefits): (i) any earned but unpaid bonus relating to the bonus year completed prior to the date of termination and (ii) COBRA continuation coverage premiums required for the coverage of the executive (or his eligible dependents) under the Company’s medical group health plan, for a period of 18 months or until the executive is employed by a third party that provides comparable coverage at no cost to the executive.

Additionally, in the event of a change in control (as defined in the employment agreements), other than as contemplated by the Merger Agreements, or if the executive’s employment is terminated by the Company without “cause,” by the executive for “good reason” or as a result of a non-renewal of the employment term by us, all of the executive’s outstanding unvested equity-based awards will vest and become immediately exercisable and unrestricted.

The executive’s right to receive the severance payments and benefits described above is subject to his delivery and non-revocation of an effective general release of claims in favor of the Company and compliance with customary restrictive covenant provisions, including, relating to confidentiality, noncompetition, nonsolicitation, cooperation and nondisparagement.

The foregoing description of the employment agreements is qualified in its entirety by reference to the employment agreements, which are filed as Exhibits 10.15 and 10.16 hereto and incorporated herein by reference.

Indemnification Agreements

On December 27, 2019, the Company entered into customary indemnification agreements (the “Indemnification Agreements”) with each of the members of the Company’s board of directors and Mr. Topchy. The Indemnification Agreements provide for indemnification by the Company to the fullest extent permitted by law and advancement of certain expenses and costs by the Company relating to claims, suits or proceedings arising from the directors and officers service to the Company.

The foregoing description of the Indemnification Agreements is qualified in its entirety by reference to the form of Indemnification Agreement, which is filed as Exhibit 10.17 hereto and incorporated herein by reference.

Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

Immediately prior to the effective time of the Initial Mergers, on December 27, 2019, the Company filed a certificate of amendment to its certificate of incorporation (the “Charter Amendment”) in order to change its name to “Broad Street Realty, Inc.” In addition, on December 27, 2019, the Company’s board of directors adopted the Company’s Amended and Restated Bylaws solely to reflect the name change.

The foregoing descriptions of the Charter Amendment and the Company’s Amended and Restated Bylaws are qualified in their entirety by reference to the Charter Amendment and the Company’s Amended and Restated Bylaws, copies of which are attached as Exhibit 3.1 and Exhibit 3.2 hereto, respectively, and are incorporated by reference herein.

Forward-Looking Statements

This Current Report on Form 8-K contains forward-looking statements within the meaning of the U.S. federal securities laws. These statements are based on current expectations of the Company’s management with respect to the transactions and other matters described in this Current Report on Form 8-K. While the Company’s management believes the assumptions underlying its forward-looking statements and information are reasonable, such information is necessarily subject to uncertainties and may involve certain risks, many of which are difficult to predict and are beyond the control of the Company’s management. These risks include, but are not limited to: the occurrence of any event, change or other circumstances that could give rise to the termination of any of the remaining Merger Agreements; the outcome of any legal proceedings that may be instituted against the Company, the Broad Street entities or others in connection with the Mergers; the inability to complete the remaining Mergers due to the failure to satisfy other conditions to completion of the remaining Mergers, including the financing condition and obtaining consent from the requisite lenders, or otherwise; the ability to recognize the benefits of the Mergers; the amount of the costs, fees, expenses and charges related to the Mergers; the Company’s substantial leverage as a result of indebtedness incurred and preferred equity issued in connection with the Mergers, which could adversely affect the Company’s ability to pay cash dividends and meet other cash needs; the Company’s ability to repay, refinance, restructure and/or extend its indebtedness as it comes due; the availability of financing and capital to the Company; the Company’s ability to identify, finance, consummate and integrate additional acquisitions or investments; adverse economic or real estate developments, either nationally or in the markets in which the Company’s properties are located; adverse changes in financial markets or interest rates; the nature and extent of competition for tenants and acquisitions; other factors affecting the retail industry or the real estate industry generally; and other risks that are set forth under “Risk Factors” in MedAmerica’s Annual Report on Form 10-K for the year ended December 31, 2018, and other documents filed by the Company with the SEC from time to time. The Company can provide no assurances that the remaining Mergers will close on the timing described herein or at all. All forward-looking statements speak only as of the date of this Current Report on Form 8-K. All subsequent written and oral forward-looking statements attributable to us or any person acting on our behalf are qualified by the cautionary statements in this section. Except as otherwise may be required by law, the Company undertakes no obligation to update or publicly release any revisions to forward-looking statements to reflect events, circumstances or changes in expectations after the date of this Current Report on Form 8-K.

Item 9.01. Financial Statements and Exhibits.

(a)

Financial Statements of Business Acquired.

The required financial statements of the acquired businesses and properties will be filed in accordance with Rules 8-04 and 8-06 of Regulation S-X under cover of Form 8-K/A as soon as practicable, but in no event later than 71 days after the date on which this initial Current Report was required to be filed.

(b)

Unaudited Pro Forma Financial Information.

The required pro forma financial statements of the Company will be filed in accordance with Article 11 of Regulation S-X under cover of Form 8-K/A as soon as practicable, but in no event later than 71 days after the date on which this Current Report was required to be filed.

(d) Exhibits


Exhibit No.		Description
3.1		Certificate of Amendment of Certificate of Incorporation of MedAmerica Properties Inc., filed with the Delaware Secretary of State on December 27, 2019.
3.2		Amended and Restated Bylaws of Broad Street Realty, Inc.
10.1		Loan Agreement, dated as of December 27, 2019, by and among BSV Colonial Owner LLC, BSV Lamonticello Owner LLC, BSV Dekalb LLC, BSV Crestview Square LLC, BSV Coral Hills LLC and BSV West Broad Commons LLC, collectively as borrower, and Big Real Estate Finance I, LLC, as lender.
10.2		Operating Agreement, dated as of December 27, 2019, by and among Broad Street BIG First OP LLC, BIG BSP Investments, LLC, Broad Street Operating Partnership, LP and any Persons admitted to Broad Street BIG First OP LLC as Substitute Member(s) in accordance with the express terms of the Agreement.
10.3		Loan Agreement, dated as of December 27, 2019, by and among MVB Bank, Inc., Broad Street Operating Partnership, LP, Broad Street Realty, Inc. and Broad Street Realty, LLC.
10.4		Tax Protection Agreement, dated as of December 27, 2019, by and among Broad Street Realty, Inc., Broad Street Operating Partnership, LP, Initial Protected Partners listed on Schedule 1 of the Agreement
10.5		Tax Protection Agreement, dated as of December 27, 2019, by and among Broad Street Realty, Inc., Broad Street Operating Partnership, LP, Initial Protected Partners listed on Schedule 1 of the Agreement and any substitute or additional Protected Partners in accordance with the terms of the Agreement.
10.6		Tax Protection Agreement, dated as of December 27, 2019, by and among Broad Street Realty, Inc., Broad Street Operating Partnership, LP, Initial Protected Partners listed on Schedule 1 of the Agreement and any substitute or additional Protected Partners in accordance with the terms of the Agreement.
10.7		Second Amendment to the Agreement and Plan of Merger, dated as of May 28, 2019, by and among BSV Cromwell Parent LLC, Broad Street Operating Partnership, LP, MedAmerica Properties Inc. and BSV Cromwell Merger Sub LLC.
10.8		Second Amendment to the Agreement and Plan of Merger, dated as of May 28, 2019, by and among BSV Cypress Point Investors LLC, Broad Street Operating Partnership, LP, MedAmerica Properties Inc. and BSV Cypress Point Merger Sub LLC.
10.9		Second Amendment to the Agreement and Plan of Merger, dated as of May 28, 2019, by and among BSV Greenwood Investors LLC, Broad Street Operating Partnership, LP, MedAmerica Properties Inc. and BSV Greenwood Merger Sub LLC.
10.10		Second Amendment to the Agreement and Plan of Merger, dated as of May 28, 2019, by and among BSV Highlandtown Investors LLC, Broad Street Operating Partnership, LP, MedAmerica Properties Inc. and BSV Highlandtown Merger Sub LLC.
10.11		Second Amendment to the Agreement and Plan of Merger, dated as of May 28, 2019, by and among BSV Lamont Investors LLC, Broad Street Operating Partnership, LP, MedAmerica Properties Inc. and BSV Lamont Merger Sub LLC

10.12		Second Amendment to the Agreement and Plan of Merger, dated as of May 28, 2019, by and among BSV LSP East Investors LLC, Broad Street Operating Partnership, LP, MedAmerica Properties Inc. and BSV LSP East Merger Sub LLC.
10.13		Second Amendment to the Agreement and Plan of Merger, dated as of May 28, 2019, by and among BSV Premier Brookhill LLC, Broad Street Operating Partnership, LP, MedAmerica Properties Inc. and BSV Brookhill Merger Sub LLC.
10.14		Second Amendment to the Agreement and Plan of Merger, dated as of May 28, 2019, by and among BSV Spotswood Investors LLC, Broad Street Operating Partnership, LP, MedAmerica Properties Inc. and BSV Spotswood Merger Sub LLC.
10.15		Employment Agreement, dated as of December 27, 2019, by and among Broad Street Realty, Inc., Broad Street Operating Partnership, LP, a Delaware limited partnership and Michael Jacoby.
10.16		Employment Agreement, dated as of December 27, 2019, by and among Broad Street Realty, Inc., Broad Street Operating Partnership, LP, a Delaware limited partnership and Alexander Topchy.
10.17		Form of Indemnification Agreement by and among Broad Street Realty, Inc. and the executive officers and directors listed on Exhibit A thereto.
16.1		Letter of Marcum LLP to the Securities and Exchange Commission, dated as of December 27, 2019.
99.1		Press Release dated December 27, 2019.

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

	BROAD STREET REALTY INC.
December 27, 2019
	By:	/s/ Michael Z. Jacoby
		Michael Z. Jacoby
		Chief Executive Officer

Exhibit 3.1

STATE OF DELAWARE

CERTIFICATE OF AMENDMENT OF

CERTIFICATE OF INCORPORATION OF

Medamerica properties inc.

The corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware does hereby certify:

FIRST: That at a meeting of the Board of Directors of MedAmerica Properties Inc., resolutions were duly adopted setting forth a proposed amendment of the Certificate of Incorporation of said corporation, declaring said amendment to be advisable. The resolution setting forth the proposed amendment is as follows:

RESOLVED, that the Certificate of Incorporation of this corporation be amended by changing the Article thereof numbered “First” so that, as amended, said Article shall be and read as follows:

First: The name of the Corporation is Broad Street Realty, Inc.

SECOND: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.

IN WITNESS WHEREOF, said corporation has caused this certificate to be signed this 27^th day of December, 2019.


	By:	/s/ Joseph C. Bencivenga
		Authorized Officer
	Title:	Joseph C. Bencivenga
	Name:	President and Chief Executive Officer

Exhibit 3.2

Amended and Restated Bylaws of

Broad Street Realty, Inc.

ARTICLE 1.

THE CORPORATION, DEFINITIONS

1.1. Name. The corporation governed by these By-Laws is herein referred to as the “Corporation” and shall be known by the name “Broad Street Realty, Inc.”

Under circumstances in which the Directors determine that the use of the name “Broad Street Realty, Inc.” is not practicable, legal and convenient, they may as appropriate, subject to the approval of the holders of a majority of the Corporation’s outstanding Common Stock, cause the Corporation’s Certificate of Incorporation (the “Certificate”) to be amended to change the name of the Corporation so that the Corporation may use and adopt another name under which the Corporation may hold property or operate in any jurisdiction.

1.2. Place of Business. The Corporation shall maintain an office, and shall designate a resident agent for the service of process (whose name and address shall be reported from time to time to the Secretary of State of Delaware), in Delaware. The Corporation may have such other offices or places of business within or without the State of Delaware as the Directors may from time to time determine.

1.3. Purpose of the Corporation. The purpose of the Corporation is to engage in any lawful activity for which corporations may be engaged under the Delaware General Corporation Law.

ARTICLE 2.

DIRECTORS

2.1. Number, Term of Office, Qualification of Directors. There shall be no fewer than three nor more than nine Directors. The range in the authorized number of Directors may be changed by vote of the holders of a majority of the Shares, and the exact number within such range shall be specified, by the Directors from time to time. Each Director shall hold office for a term of one year or until the election and qualification’ of his successor. At each Annual Meeting of Shareholders, the Shareholders shall elect successors to the Directors, unless the number of Directors is then being reduced. There shall be no cumulative voting in the election of Directors. Directors may be re-elected without limit as to the number of times. A Director shall be an individual at least 21 years of age who is not under legal disability. Unless otherwise required by law or by action of the Directors, no Director shall be required to give bond, surety or security in any jurisdiction for the performance of any duties or obligations hereunder. The Directors in their capacity as Directors shall not be required to devote their entire time or any specified portion of their time to the business and affairs of the Corporation.

2.2. Resignation. Removal and Death of Directors. A Director may resign at any time by giving written notice to the remaining Directors. Such resignation shall take effect on the date such notice is given or at any later time specified in the notice. A Director may be removed at any time with or without cause by vote or by written consent of the holders of a majority of the Shares outstanding or, unless otherwise prohibited by Delaware corporate law, with cause by a majority of the remaining Directors. For purposes of the immediately preceding sentence “cause” shall include, without limitation, any physical and/or mental inability, due to a condition or illness which is expected to be of permanent or indefinite duration, to perform the duties of a Director. Upon the resignation or removal of any Director, or his otherwise ceasing to be a Director, he shall account to the remaining Director or Directors as they require for all property which he holds as Director and shall thereupon be discharged as Director. Upon the incapacity or death of any Director, his legal representative shall perform the acts, if any, set in the preceding sentence and the discharge mentioned therein shall run to such legal representative and to the incapacitated Director, or the estate of the deceased Director, as the case may be.

2.3. Vacancies. If any or all of the Directors cease to be Directors hereunder, whether by reason of resignation, removal, incapacity, death or otherwise, such event shall not terminate the Corporation or affect its continuity. Until vacancies are filled, the remaining Director or Directors may exercise the power of the Directors hereunder. Vacancies among the Directors (including vacancies created by increases in the number of Directors) shall be filled for the unexpired term by persons ratified by the remaining Directors. If at any time there shall be no Directors in office, successor Directors shall be elected by the Shareholders as provided in Section 6.6.

2.4. Actions by Directors. The Directors may act with or without a meeting. A quorum for all meetings of the Directors shall be a majority of the Directors. Unless specifically provided otherwise in the Certificate or these By-Laws, any action of the Directors may be taken at a meeting by vote of a majority of the Directors if a quorum is present, or without a meeting by written consent of all of the Directors filed with the minutes of proceedings of the Board of Directors. Directors may conduct meetings by conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at such meeting.

An annual meeting of the Directors shall be held at substantially the same time as the Annual Meeting of Shareholders. Regular meetings shall be held at least four times per year at such times as shall be fixed by the Directors. No notice shall be required of an annual or a regular meeting of Directors.

Special meetings of the Directors shall be called by the Chairman upon the request of any two Directors and may be called by the Chairman on his own motion, on not less than two days’ notice to each Director if the meeting is to be held in person, and/or not less than eight hours’ notice if the meeting is to be held by conference telephone or similar equipment. Such notice, which shall state the purpose of the meeting, shall be by oral, telegraphic, telephonic or written communication stating the time and place therefor. Notice of any special meeting need not be given to any Director entitled thereto who submits a written and signed waiver of notice, either before or after the meeting, or who attends the meeting without protesting, prior thereto or at its commencement, the lack of notice to him.

Regular or special meetings of the Directors may be held within or without the State of Delaware, at such places as shall be designated by the Directors. The Directors may adopt such rules and regulations for their conduct and the management of the affairs of the Corporation as they may deem proper and as are not inconsistent with the Certificate or these By-Laws.

2.5. Committees. The Directors may appoint from among their number an executive committee and such other standing committees, including without limitation, audit and nominating committees, or special committees as the Directors determine. Each standing committee shall consist of three or more members. Each committee shall have such powers, duties and obligations as may be required by any governmental agency or other regulatory body or as the Directors may deem necessary and appropriate.

ARTICLE 3.

DIRECTORS’ POWERS

3.1. Power and Authority of Directors. The Directors, subject only to the specific limitations contained in the Certificate and these By-Laws, shall have, without further or other authorization, free from any power of control on the part of the Shareholders, full, absolute and exclusive power, control and authority over the Corporation’s assets and over the business and affairs of the Corporation to the same extent as if the Directors were the sole owners thereof in their own right, and to do all such acts and things as in their sole judgment and discretion are necessary or incidental to, or desirable for, the carrying out of any of the purposes of the Corporation or conducting the business of the Corporation. Any determination made in good faith by the Directors of the purposes of the Corporation or the existence of any power or authority hereunder shall be conclusive and each such determination and the basis therefor shall be set forth in the minutes of meetings of the Directors. In construing the provisions of the Certificate or these By-Laws, the presumption shall be in favor of the grant of powers and authority to the Directors. The enumeration of any specific power or authority herein shall not be construed as limiting the general powers or authority or any other specified power or authority conferred herein by statute or rule of law upon the Directors.

3.2. Specific Powers and Authorities. Subject only to the express limitations contained in the Certificate and these By-Laws and in addition to any powers and authorities conferred by the Certificate and these By-Laws or which the Directors may have by virtue of any present or future statute or rule of law, the Directors without any action or consent by the Shareholders shall have and may exercise, at any time and from time to time, the following powers and authorities which may or may not be exercised by them in their sole judgment and discretion, and in such manner, and upon such terms and conditions as they may, from time to time, deem proper:

3.2.1. To retain, invest and reinvest the capital or other funds of the Corporation and, for such consideration as they deem proper, to purchase or otherwise acquire for cash or other property or through the issuance of Shares or other securities of the Corporation and hold for investment real or personal property of any kind, tangible or intangible, in entirety or in participation and to possess-and exercise all the rights, powers and privileges appertaining to the ownership of the Corporation’s assets with respect thereto;

3.2.2. To sell, rent, lease, hire, exchange, release, partition, assign, mortgage, pledge, hypothecate, grant security interest in, encumber, negotiate, convey, transfer or otherwise dispose of or grant interests in the Corporation’s assets by deeds, financing statements, security agreements and other instruments, trust deeds, assignments, bills of sale, transfers, leases or mortgages, for any of such purposes. Provided that any Board resolution authorizing the sale, lease, or exchange of all or substantially all of the Corporation’s assets must be approved by the holders of a majority of the outstanding Shares entitled to vote thereon;

3.2.3. To enter into leases, contracts, obligations, and other agreements for a term extending beyond the term of office of the Directors and beyond the possible termination of the Corporation or for a lesser term;

3.2.4. To borrow money and give negotiable or non-negotiable instruments therefor; to guarantee, indemnify or act as surety with respect to payment or performance of obligations of third parties; to enter into other obligations on behalf of the Corporation; and to assign, convey, transfer, mortgage, subordinate, pledge, grant security interests in, encumber or hypothecate the Corporation’s assets to secure any of the foregoing;

3.2.5. To lend money, whether secured or unsecured, to any person, including any person affiliated with the Corporation;

3.2.6. To create reserve funds for any purpose;

3.2.7. To incur and pay out of the Corporation’s assets any charges or expenses, and disburse any funds of the Corporation, which charges, expenses or disbursements are, in the opinion of the Directors, necessary or incidental to or desirable for the carrying out of any of the purposes of the Corporation or conducting the business of the Corporation, including, without limitation, taxes and other governmental levies, charges and assessments, of whatever kind or nature, imposed upon or against the Directors in connection with the Corporation or the Corporation’s assets or upon or against the Corporation’s assets or any part thereof, and for any of the purposes herein;

3.2.8. To deposit funds of the Corporation in or with banks, trust companies, savings and loan associations, money market organizations and other depositories or issuers of depository-type accounts, whether or not such deposits will draw interest or be insured, the same to be subject to withdrawal or redemption on such terms and in such manner and by such person or persons (including any one or more Directors, officers, agents or representatives) as the Directors may determine;

3.2.9. To possess and exercise all the rights, powers and privileges appertaining to the ownership of all or any mortgages or securities issued or created by, or interests in, any person, forming part of the Corporation’s assets, to the same extent that an individual might and, without limiting the generality of the foregoing, to vote or give consent, request or notice, or waive any notice, either in person or by proxy or power of attorney, with or without power of substitution, to one or more persons which proxies and powers of attorney may be for meetings or action generally or for any particular meeting or action, and may include the exercise of discretionary powers;

3.2.10. To enter into joint ventures, general or limited partnerships and any other lawful combinations or associations;

3.2.11. To elect or appoint officers of the Corporation (none of whom needs be a Director), who may be removed or discharged at the discretion of the Directors, such officers to have such powers and duties, and to serve such terms, as may be prescribed by the Directors or by these By-Laws of the Corporation, if adopted, or as may pertain to such offices;

3.2.12. Subject to the provisions of Sections 7.5 and 7.6, to engage or employ any persons as agents, representatives, employees, or independent contractors (including without limitation, real estate advisors, investment advisors, transfer agents, registrars, underwriters, accountants, attorneys at law, real estate agents, managers, appraisers, brokers, architects, engineers, construction managers, general contractors or otherwise) in one or more capacities, in connection with the management of the Corporation’s affairs or otherwise, and to pay compensation from the Corporation for services in as many capacities as such person may be so engaged or employed and notwithstanding that any such person is, or is an Affiliated person of, an officer or Director of the Corporation, and, except as prohibited by law, to delegate any of the powers and duties of the Directors to any one or more Directors, agents, representatives, officers, employees, independent contractors or other persons;

3.2.13. To determine whether moneys, securities or other assets received by the Corporation shall be charged or credited to income or capital or allocated between income and capital, including the power to amortize or fail to amortize any part or all of any premium or discount, to treat all or any part of the profit resulting from the maturity or sale of any asset, whether purchased at a premium or at a discount, as income or capital, or apportion the same between income and capital, to apportion the sales price of any asset between income and capital, and to determine in what manner any expenses or disbursements are to borne as between income and capital, whether or not in the absence of the power and authority conferred by this subsection such moneys, securities or other assets would be regarded as income or as capital or such expense or disbursement would be charged to income or capital; to treat any dividend or other distribution on any investment as income or capital or to apportion the same between income and capital; to provide or fail to provide reserves for depreciation, amortization, doubtful collection, or obsolescence in respect of all or any part of the Corporation’s assets subject to depreciation, amortization, collection, or obsolescence in such amounts and by such methods as they shall determine; and to determine the method or form in which the accounts and records of the Corporation shall be kept and to change from time to time such method or form;

3.2.14. To determine from time to time the value of all or any part of the Corporation’s Assets and of any services, securities, property or other consideration to be furnished to or acquired by the Corporation, and from time to time to revalue all or any part of the Corporation’s assets in accordance with such valuations or other information, which valuations or other information may be provided by other persons retained for the purpose, as the Directors, in their sole judgment, may deem necessary;

3.2.15. To collect, sue for, and receive all sums of money coming due to the Corporation, and to engage in, intervene in, prosecute, join, defend, compound, compromise, abandon or adjust, by arbitration or otherwise, any actions, suits, proceedings, disputes, claims, controversies, demands or other litigation relating to the Corporation, the Corporation’s assets or the Corporation’s affairs, to enter into agreement therefor, whether or not any suit is commenced or claim accrued or asserted and, in advance of any controversy, to enter into agreements regarding arbitration, adjudication or settlement thereof;

3.2.16. To renew, modify, release, compromise, extend, consolidate, or cancel, in whole or in part, any obligation to or of the Corporation;

3.2.17. To purchase and pay for out of the Corporation’s assets insurance contracts and policies insuring the Corporation’s assets against any and all risks and insuring the Corporation, the Directors, the Shareholders, the officers of the Corporation, or any or all of them, against any and all claims and liabilities of every nature asserted by any person arising by reason of any action alleged to have been taken or omitted by the Corporation, or by the Directors, Shareholders or officers;

3.2.18. To cause legal title to any of the Corporation’s assets to be held by or in the name of the Corporation or one or more of the Directors or any other person as the Directors may determine, on such terms and in such manner and with such powers as are consistent with Section 144 of the Delaware General Corporation Law, as amended, and with disclosure that the Corporation or Directors are interested therein;

3.2.19. To adopt an accounting method for the Corporation, and from time to time change such accounting method, and to engage a firm of independent certified public accountants to audit the financial records of the Corporation;

3.2.20. To adopt and use a seal (but the use of a seal shall not be required for the execution of instruments or obligations of the Corporation);

3.2.21. With respect to any securities issued by the Corporation, to provide that the same may be signed by the manual signature of one or more Directors or officers, or persons who have theretofore been Directors or officers or by the facsimile signature of any such person (with or without countersignature by a transfer agent, registrar, authenticating agent or other similar person), and to provide that ownership of such securities may be conclusively evidenced by the books and records of the Corporation or any appropriate agent of the Corporation without the necessity of any certificate, all as determined by the Directors from time to time to be consistent with normal commercial practices;

3.2.22. To declare and pay cash distributions to Shareholders as provided in Section 6.4;

3.2.23. To adopt a distribution reinvestment or similar such plan for the Corporation, and to provide for the cost of the administration thereof to be borne by the Corporation;

3.2.24. To file any and all documents and take any and all such other action as the Directors in their sole judgment may deem necessary in order that the Corporation may lawfully conduct its business in any jurisdiction;

3.2.25. To participate in any reorganization, readjustment, consolidation, merger, dissolution, sale or purchase of assets, lease or similar proceedings of any corporation, partnership or other organization in which the Corporation shall have an interest and in connection therewith to delegate discretionary powers to any reorganization, protective or similar committee and to pay assessments and other expenses in connection therewith;

3.2.26. To do all other such acts and things as are incident to the foregoing, and to exercise all powers which are necessary or useful to carry on the business of the Corporation, to promote any of the purposes for which the Corporation is formed, and to carry out the provisions of the Certificate and these By-Laws.

3.3. Regulations. The Directors may, but are not required to, make, adopt, amend or repeal regulations containing provisions relating to the business of the Corporation, the conduct of its affairs, its rights or powers and the rights or powers of its Shareholders, Directors or officers not inconsistent with law or with these By-Laws. Such regulations may provide for the appointment of assistant officers or agents of the Corporation, subject, however, to the right of the Directors to remove or discharge such officers or agents.

ARTICLE 4.

ADVISOR AND OTHER AGENTS: ANNUAL TOTAL OPERATING EXPENSES

4.1. Employment of Employees, Agents. etc. The Directors are responsible for the general policies of the Corporation and for such general supervision of the business of the Corporation conducted by all officers, agents, employees, advisors, managers or independent contractors of the Corporation as may be necessary to insure that such business conforms to the provisions of the Certificate and these By-Laws. However, the Directors shall have the power to retain and/or to appoint, employ or contract with any person (including any corporation, partnership, or trust in which one or more of the Directors may be directors, officers, stockholders, partners or trustees) as the Directors may deem necessary or proper for the transaction of the business of the Corporation, and for such purpose may grant or delegate such authority to any such person as the Directors may in their sole discretion deem necessary or desirable without regard to whether such authority is normally granted or delegated by directors.

The Directors shall have the power to determine the terms and compensation of any person whom they may employ or with whom they may contract.

ARTICLE 5.

PROHIBITED ACTIVITIES

5.1. Obligors Default. Notwithstanding any provision in the Certificate or in any Article of these By-Laws, when an obligor to the Corporation is in default under the terms of any obligation to the Corporation, the Directors shall have the power to pursue any remedies permitted by law which in their sole judgment are in the interest of the Corporation and the Directors shall have the power to enter into any necessary investment, commitment or obligation of the Corporation resulting from the pursuit of such remedies that are necessary or desirable to dispose of property acquired in the pursuit of such remedies.

5.2. Percentage Determinations. Whenever standards contained in this Article V are expressed in terms of a percentage, whether of value, total assets, cost or otherwise, such percentage shall be determined at the time of the issuance of a commitment by the Corporation for a transaction covered by such standard hereunder.

ARTICLE 6.

SHARES AND SHAREHOLDERS

6.1. Shares. The Corporation shall issue shares of Common Stock (“Shares”), each with a par value of $0.01, and each Share shall be identical in all respects with every other Share. Each Share shall entitle the holder thereof to one vote on all matters upon which Shareholders are entitled to vote. The total number of Shares which the Corporation shall have authority to issue shall be 50,000,000. The Shares may be issued for such consideration as the Directors shall determine, including upon the conversion of convertible debt, or by way of Share distribution or Share split in the discretion of the Directors. Subject to the Certificate, outstanding Shares shall be assignable and transferable. Shares reacquired by the Corporation shall no longer be deemed outstanding and shall have no voting or other rights unless and until reissued. Shares reacquired by the Corporation may be cancelled by action of the Directors. All Shares shall be fully paid and nonassessable by or on behalf of the Corporation upon receipt of full consideration if issued by way of Share distribution, Share split, or upon the conversion of convertible debt. The Shares shall not entitle the holder to preference, preemptive, conversion, or exchange rights of any kind, except as the Directors may specifically determine with respect to any Shares at the time of issuance of such Shares and except as specifically required by law.

6.2. Shares Deemed Personal Property. The Shares shall be personal property and shall confer upon the holders thereof the interest and rights specifically set forth in these By-Laws. The death, insolvency or incapacity of a Shareholder shall not dissolve or terminate the Corporation or affect its continuity nor give his legal representative any rights whatsoever, whether against or in respect of other Shareholders, the Directors or the Corporation’s assets or otherwise except the sole right to demand and, subject to the provisions of these By-Laws, regulations, if adopted, and any requirements of law, to receive a new certificate for Shares registered in the name of such legal representative, in exchange for the certificate held by such Shareholder.

6.3. Share Record; Issuance and Transferability of Shares. Records shall be kept by or on behalf of and under the direction of the Directors, which shall contain the names and addresses of the Shareholders, the number of Shares held by them respectively, and the number of certificates, if any, representing the Shares, and in which there shall be recorded all transfers of Shares. The persons in whose names Shares are so recorded shall be deemed the absolute owners of such Shares for all purposes of this Corporation; but nothing herein shall be deemed to preclude the Directors or officers, or their agents or representatives from inquiring as to the actual ownership of Shares. Until a transfer is duly registered on the records of the Corporation, the Directors shall not be affected by any notice of such transfer, either actual or constructive. The payment thereof to the person in whose name any Shares are registered on the records of the Corporation or to the duly authorized agent of such person (or if such Shares are so registered in the names of more than one person, to any one of such persons or to the duly authorized agent of such person) shall be sufficient discharge for all distributions payable or deliverable in respect of such Shares.

In case of the loss, mutilation or destruction of any certificate for Shares, the Directors may issue or cause to be issued a replacement certificate on such terms and subject to such rules and regulations as the Directors may from time to time prescribe. Nothing in these By-Laws shall impose upon the Directors or a transfer agent a duty, or limit their rights, to inquire into adverse claims. Transfer and issuance of Shares is at all times subject to the provisions of the Certificate.

6.4. Distributions to Shareholders. The Directors, in their discretion, shall declare and pay to Shareholders quarterly distributions in cash or other property, out of current or accumulated income, capital, capital gains, principal, surplus, proceeds from the increase or refinancing of Corporation obligations, from the repayment of loans made by the Corporation, from the sale of portions of the Corporation’s assets, or from any other source as the Directors in their discretion shall determine. Provided, no such distribution shall impair the capital of the Corporation or otherwise violate the provisions of the Delaware General Corporation Law. Shareholders shall have no right to any distribution unless and until declared by the Directors. The date for determining the Shareholders who are entitled to participate in such distributions shall be established by the Directors within 45 days after the last day of the fiscal quarter with respect to which such distribution shall be made. The Directors shall furnish the Shareholders at the time of each such distribution with a statement in writing advising as to the source of funds so distributed or, if the source thereof has not then been determined, a written statement disclosing the source shall be sent to each Shareholder who received the distribution not later than (a) 60 days after the close of the fiscal year in which the distribution was made, or (b) promptly after the independent auditors of the Corporation have completed, or undertaken sufficient actions toward completion of, the annual audit of the Corporation, so that the Directors can determine the source of such distribution, whichever event shall occur later.

6.5. Transfer Agent, Distribution Disbursing Agent and Registrar. The Directors shall have power to employ one or more transfer agents, distribution disbursing agents, distribution reinvestment plan agents, and registrars and to authorize them on behalf of the Corporation to keep records, to hold and disburse any distributions and to have and perform powers and duties customarily had and performed by transfer agents, distribution disbursing agents, distribution reinvestment plan agents, and registrars as may be conferred upon them by the Directors.

6.6. Shareholders’ Meetings and Consents. The Directors shall cause to be called and held an Annual Meeting of Shareholders at such time and such place as they may determine, at which Directors shall be elected and any other proper business may be conducted. The Annual Meeting of Shareholders shall be held within six months after the end of each fiscal year, after not fewer than 10 days nor more than 60 days’ written notice of such meeting has been sent to Shareholders by the Directors and after delivery to the Shareholders of the Annual Report for the fiscal year then ended. Special meetings of Shareholders may be called by a majority of the Directors and shall be called by the Chairman upon the written request of Shareholders holding not less than 10% of the outstanding Shares of the Corporation. Within ten business days after a written request either in person or by registered mail stating the purpose of the meeting requested by Shareholders, the Corporation shall provide all Shareholders written notice (either in person or by mail) of a meeting and the purpose of such meeting to be held on a date not fewer than 10 days nor more than 60 days after the date of such notice, at a time and place convenient to Shareholders. The call and notice of any special meeting shall state the purpose of the meeting and no other business shall be considered at such meeting. If there shall be no Directors, a special meeting of the Shareholders shall be held promptly for the election of successor Directors.

A majority of the outstanding Shares entitled to vote at any meeting represented in person or by proxy shall constitute a quorum at such meeting. Whenever Shareholders, are required or permitted to take any action, such action may be taken, except as otherwise provided by the Certificate or these By-Laws or required by law, by a majority of the votes cast at a meeting of Shareholders at which a quorum is present by holders of Shares entitled to vote thereon, or without a meeting by written consent setting forth the action so taken signed by the holders of a majority of the outstanding Shares entitled to vote thereon or such larger proportion thereof as would be required for a vote of Shareholders at a meeting. Any written consent may be revoked by a writing received by the Corporation prior to, but not after, the time that written consents of the number of Shares required to authorize the proposed action have been filed with the Corporation. Notwithstanding this or any other provision of the Certificate or these By-Laws, no vote or consent of Shareholders shall be required to approve the sale, exchange or other disposition pledging, hypothecating, granting security interests in, mortgaging, encumbering or leasing of by the Directors of less than half of the assets of the Corporation, which is presumed to constitute less than all or substantially all of the assets of the Corporation.

6.7. Proxies. Whenever the vote or consent of Shareholders is required or permitted under these By-Laws, such vote or consent may be given either directly by the Shareholder or by a proxy. The Directors may solicit such proxies from the Shareholders or any of them in any matter requiring or permitting the Shareholders’ vote. or consent. No such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period.

6.8. Reports to Shareholders. The Directors shall cause to be prepared and mailed to the Shareholders not later than 120 days after the close of each fiscal year of the Corporation, and in any event not less than 15 days prior to the Corporation’s annual meeting of Shareholders, a report of the business and operation of the Corporation during such fiscal year, which report shall constitute the accounting of the Directors for such fiscal year. The report shall be in such form and have such content as the Directors deem proper, but shall in any event include (a) a balance sheet, an income statement and a surplus statement, each prepared in accordance with generally accepted accounting principles, shall be audited by an independent certified public accountant and shall be accompanied by the report of such accountant thereon, and (b) a description of the material terms and circumstances of any transactions between the Corporation and any Director, Officer or any Affiliate thereof, including without limitation purchases from, loans to or from, or joint ventures with the Corporation, and a statement that a majority of the Directors determined that such transactions were fair and reasonable to the Corporation and on terms not less favorable than those available from unaffiliated third parties.

6.9. Fixing Record Date. For the purpose of determining the Shareholders who are entitled to notice of or to vote or act at any meeting or any adjournment thereof or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution, or for the purpose of any other action, the Directors shall fix a date not more than 60 nor less than 10 days prior to the date of any meeting of Shareholders nor more than 60 days prior to any other action as a record date for the determination of Shareholders entitled to vote at such meeting or any adjournment thereof or to take any other action. Any Shareholder who was a Shareholder at the time so fixed shall be entitled to vote at such meeting or any adjournment thereof or to take such other action, even though he has since that date disposed of his Shares, and no Shareholder becoming such after that date shall be so entitled to vote at such meeting or any adjournment thereof or to take such other action.

6.10. Notice to Shareholders. Any notice of meeting or other notice, communication or report to any Shareholder shall be deemed duly delivered to such Shareholder when such notice, communication or report is deposited, with postage thereon prepaid, in the United States mail, addressed to such Shareholder at his address as it appears on the records of the Corporation or is delivered in person to such Shareholder.

6.11. Inspection by Shareholders. Inspection of the books and records of the Corporation shall be permitted to the same extent as permitted under the laws of Delaware.

ARTICLE 7.

LIABILITY OF DIRECTORS,

SHAREHOLDERS AND OFFICERS AND OTHER MATTERS

7.1. Elimination of Certain Liability of Directors. A Director of the Corporation shall not be personally liable to the Corporation or its Shareholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the Director’s duty of loyalty to the Corporation or its Shareholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv) for any transaction from which the Director derived an improper personal benefit.

7.2. Indemnification and Insurance.

(a) Right to Indemnification. Each person who was or is made a party or is threatened to be made a party to or is involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a “proceeding”), by reason of the fact that he or she, or a person of whom he or she is the legal representative, is or was a director or officer, of the Corporation or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, whether the basis of such proceeding is alleged action in an official capacity as a director, officer, employee or agent or in any other capacity while serving as a director, officer, employee or agent, shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the Delaware General Corporation Law, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than said law permitted the Corporation to provide prior to such amendment), against all expense, liability and loss (including attorneys’ fees, judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid in settlement) reasonably incurred or suffered by such person in connection therewith and such indemnification shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of his or her heirs, executors and administrators; provided, however, that, except as provided in paragraph (b) hereof, the Corporation shall indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person only if such proceeding (or part thereof) was authorized by the Board of Directors of the Corporation. The right to indemnification conferred in this Section shall be a contract right and shall include the right to be paid by the Corporation the expenses incurred in defending any such proceeding in advance of its final disposition; provided, however, that, if the Delaware General Corporation Law requires, the payment of such expenses incurred by a director or officer in his or her capacity as a director or officer (and not in any other capacity in which service was or is rendered by such person while a director or officer, including, without limitation, service to an employee benefit plan) in advance of the final disposition of a proceeding, shall be made only upon delivery to the Corporation of an undertaking, by or on behalf of such director or officer, to repay all amounts so advanced if it shall ultimately be determined that such director or officer is not entitled to be indemnified under this Section or otherwise. The Corporation may, by action of its Board of Directors, provide indemnification to employees and agents of the Corporation with the same scope and effect as the foregoing indemnification of directors and officers.

(b) Right of Claimant to Bring Suit. If a claim under paragraph (a) of this Section is not paid in full by the Corporation within thirty days after a written claim has been received by the Corporation, the claimant may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant shall be entitled to be paid also the expense of prosecuting such claim. It shall be a defense to any such action (other than an action brought to enforce a claim for expenses incurred in defending any proceeding in advance of its final disposition where the required undertaking, if any is required, has been tendered to the Corporation) that the claimant has not met the standards of conduct which makes it permissible under the Delaware General Corporation Law for the Corporation to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be on the Corporation. Neither the failure of the Corporation (including its Board of Directors, independent legal counsel, or its Shareholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the Delaware General Corporation Law, nor an actual determination by the Corporation (including its Board of Directors, independent legal counsel, or its Shareholders) that the claimant has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct.

(c) Non-Exclusivity of Rights. The right to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this Section shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, provision of the Certificate, these By-Laws, agreement, vote of Shareholders or disinterested directors or otherwise.

(d) Insurance. The Corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee or. agent of the Corporation or another corporation, partnership, joint venture, trust or other enterprise against any such expense, liability or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the Delaware General Corporation Law.

7.3. Right of Directors and Officers to Own Shares or Other Property and to Engage in Other Business. Any Director or officer may acquire, own, hold and dispose of Shares in the Corporation, for his individual account, and may exercise all rights of a Shareholder to the same extent and in the same manner as if he were not a Director or officer. Any Director or officer may have personal business interests and may engage in personal business activities, which interests and activities may include businesses similar to or competitive with the business of the Corporation. Subject to the provisions of Article V, any Director or officer may be interested as trustee, officer, director, stockholder, partner, member, advisor or employee, or otherwise have a direct or indirect interest in any person who may be engaged to render advice or services to the Corporation, and may receive compensation from such person as well as compensation as Director, officer or otherwise hereunder and no such activities shall be deemed to conflict with his duties and powers as Director or officer.

7.4. Transactions with Affiliates. The Corporation shall not engage in transactions with any Director or officer, or any Affiliated person of such person, except to the extent that each such transaction has, after disclosure of such affiliation, been approved or ratified by the affirmative vote of a majority of the Directors who are not interested parties in the transactions after a determination by them that:

7.4.1. The transaction is fair and reasonable to the Corporation and its Shareholders;

7.4.2. The terms of such transaction are at least as favorable as the terms of any comparable transactions made on an arm’s length basis;

7.4.3. Payments to any Director or officer for services rendered in a capacity other than as Director, or officer may only be made upon determination that:

(a) the compensation is not in excess of their compensation paid for any comparable services; and

(b) the compensation is not greater than the charges for comparable services available from others who are competent and not affiliated with any of the parties involved.

7.5. Persons Dealing With Directors or Officers. Any act of the Directors or officers purporting to be done in their capacity as such shall, as to any persons dealing with such Directors or officers, be conclusively deemed to be within the purposes of this Corporation and within the powers of the Directors and officers. No person dealing with the Directors or any of them, or with the authorized officers, agents or representatives of the Corporation shall be bound to see to the application of any funds or property passing into their hands or control. The receipt of the Directors or any of them, or of authorized officers, agents, or representatives of the Corporation, for moneys or other consideration, shall be binding upon the Corporation.

7.6. Reliance. The Directors and officers may consult with counsel (which may be a firm in which one or more of the Directors or officers is or are members) and the advice or opinion of such counsel shall be full and complete personal protection to all of the Directors and officers in respect of any action taken or suffered by them in good faith and in reliance on or in accordance with such advice or opinion. In discharging their duties, Directors and officers shall be fully protected in relying in good faith upon financial statements of the Corporation represented to them to be correct by the Chairman or the officer of the Corporation having charge of its books of account, or stated in written reports by an independent certified public accountant fairly to present the financial position of the Corporation. The Directors may rely upon any instrument or other document believed by them to be genuine.

ARTICLE 8.

DURATION, TERMINATION, AMENDMENT

AND REORGANIZATION OF CORPORATION

8.1. Duration and Termination of Corporation. The duration of the Corporation shall be perpetual unless terminated in accordance with the Certificate or these By-Laws or by operation of law. The Directors shall at all times be empowered to cause the termination of the Corporation by vote of a majority of the Directors and the approval of the holders of a majority of the outstanding Shares. Any determination by the Directors of the date upon which termination shall occur shall be reflected in a vote of or written instrument signed by a majority of all of the Directors then in office, and ratified by the holders of a majority of the outstanding Shares; provided, however, that any plan for the termination of the Corporation which contemplates the distribution to the Shareholders of securities or other property in kind (other than the right promptly to receive cash) shall require the vote or consent of the holders of two-thirds of the outstanding Shares.

8.1.1. Upon the termination of the Corporation and unless otherwise provided in a plan for termination approved by the holders of two-thirds of the Shares outstanding and a majority of the Directors:

(a) the Corporation shall carry on no business except for the purpose of winding up its affairs;

(b) the Directors shall proceed to wind up the affairs of the Corporation and all of the powers of the Directors under these By-Laws shall continue until the affairs of the Corporation shall have been wound up, including the power to fulfill or discharge the contracts of the Corporation, collect its assets, sell, convey, assign, exchange, transfer or otherwise dispose of all or any part of the remaining Corporation’s assets to one or more persons at public or private sale for consideration which may consist in whole or in part of cash, securities or other property of any kind, discharge or pay its liabilities, and do all other acts appropriate to liquidate its business (and provided that the Directors may, if permitted by applicable law, and if they deem it to be in the best interest of the Shareholders, appoint a liquidating trust, or agent, or other entity to perform one or more of the foregoing functions); and

(c) after paying or adequately providing for the payment of all liabilities, and upon receipt of such releases, indemnities and refunding agreements, as they deem necessary for their protection, the Directors or any liquidating trust, agent or other entity appointed by them, shall distribute the remaining Corporation’s assets among the Shareholders, pro rata, according to the number of Shares held by each.

If any plan for the termination of the Corporation approved by the holders of two-thirds of the outstanding Shares and agreeable to a majority of the Directors provides for actions of the Directors other than aforesaid, the Directors shall have full authority to take all action as in their opinion is necessary or appropriate to implement such plan.

8.1.2. After termination of the Corporation and distribution to the Shareholders as provided herein or in any said plan so approved by the Shareholders, the Directors shall execute and lodge among the records of the Corporation an instrument in writing setting forth the fact of such termination, and the Directors shall thereupon be discharged from all further liabilities and duties hereunder and the rights and interests of all Shareholders hereunder shall thereupon cease.

8.2. Merger, etc. Upon the vote or written consent of a majority of the Directors and with the approval of the holders of two-thirds of the Shares then outstanding, at a meeting the notice for which included a statement of the proposed action, the Directors may (a) merge the Corporation into, or sell, convey and transfer the Corporation’s assets to, any corporation, association, trust or other organization, which may or may not be a subsidiary of the Corporation, in exchange for shares or securities thereof, or beneficial interests therein, or other consideration, and the assumption by such transferee of the liabilities of the Corporation and (b) thereupon terminate the Corporation and, subject to Section 8.1, distribute such shares, securities, beneficial interests, or other consideration, ratably among Shareholders in redemption of their Shares, provided, however, that the Shareholders would, thereafter, be the sole equity owners of such entity.

8.3. Amendment Procedure. The Certificate or these By-Laws (other than Section 2.1 hereof) may be amended by the vote or written consent of a majority of the Directors and of the holders of a majority of the outstanding Shares; provided, however, that no amendment which would reduce the priority of payment or amount payable to holders of Shares of the Corporation upon liquidation of the Corporation or that would diminish or eliminate any voting rights pertaining to holders of Shares shall be made unless approved by the vote or consent of the holders of two-thirds of the outstanding Shares present, in person or by proxy, and eligible to vote; provided further, however, that a majority of the Directors without the vote or consent of Shareholders may at any time amend the Certificate or these By-Laws to the extent deemed by the Directors in good faith to be necessary to clarify any ambiguities or correct any inconsistencies.

ARTICLE 9.

MISCELLANEOUS

9.1. Filing of Copies: References: Headings. The original or a copy of these By-Laws and of each amendment hereto shall be kept at the office of the Corporation where it may be inspected by any Shareholder. Anyone dealing with the Corporation may rely on a certificate by an officer of the Corporation as to whether or not any such amendments have been made, as to the identities of the Directors and officers, and as to any matters in connection with the Corporation hereunder; and, with the same effect as if it were the original, may rely on a copy certified by an. officer of the Corporation to be a copy of this instrument or of any such amendments. In this instrument, and in such amendment, references to this instrument, and all expressions like “hereof,” and “hereunder” shall be deemed to refer to this instrument as a whole as the same may be amended or affected by any such amendments. The masculine gender shall include the feminine gender and the neuter. Headings are placed herein for convenience of reference only and shall not be taken as a part hereof or control or affect the meaning, construction or effect of this instrument. This instrument may be executed in any number of counterparts each of which shall be deemed an original.

9.2. Provisions of the Corporation in Conflict With Law or Regulations. If any provision of these By-Laws shall be held invalid or unenforceable, such invalidity or unenforceability shall attach only to such provision and shall not in any manner affect or render invalid or unenforceable any other provision of these By-Laws, and these By-Laws shall be carried out as if any such invalid or unenforceable provisions were not contained herein.

9.3. Binding Effect; Successors in Interest. Each person who becomes a Shareholder shall, as a result thereof, be deemed to have agreed to and to be bound by the provisions of these By-Laws. These By-Laws shall be binding upon and inure to the benefit of the Directors and the Shareholders and each of their respective successors, assigns, heirs, distributees and legal representatives.

Exhibit 10.1

_______________________________________________________________

LOAN AGREEMENT

DATED AS OF DECEMBER 27, 2019

BETWEEN

BSV COLONIAL OWNER LLC, BSV LAMONTICELLO OWNER LLC, BSV DEKALB

LLC, BSV CRESTVIEW SQUARE LLC, BSV CORAL HILLS LLC, AND BSV WEST

BROAD COMMONS LLC,

COLLECTIVELY, AS BORROWER

AND

BIG REAL ESTATE FINANCE I, LLC

AS LENDER

_________________________________________________________________

Table of Contents

Page

DEFINITIONS; PRINCIPLES OF CONSTRUCTION

	1.1	DEFINITIONS	1
	1.2	PRINCIPLES OF CONSTRUCTION	1

GENERAL LOAN TERMS

2.1	THE LOAN	1
2.2	ADDITIONAL ADVANCES	1
2.3	INTEREST; MONTHLY PAYMENTS.	3
2.4	LOAN REPAYMENT.	5
2.5	RELEASE OF PROPERTY	6
2.6	PAYMENTS & COMPUTATIONS.	6
2.7	INTEREST RATE CAP AGREEMENTS.	7
2.8	FEES.	9
2.9	EXTENSION OPTION	10
2.10	CERTAIN PAYMENTS	11

CASH MANAGEMENT & RESERVES

3.1	CASH MANAGEMENT ARRANGEMENTS	12
3.2	REQUIRED REPAIRS.	12
3.3	TAXES & INSURANCE	13
3.4	CAPITAL EXPENSE RESERVES	14
3.5	ROLLOVER RESERVES.	14
3.6	FOOD LION RESERVE.	16
3.7	OPERATING EXPENSE SUBACCOUNT	17
3.8	CASUALTY/CONDEMNATION SUBACCOUNT	17
3.9	SECURITY DEPOSITS	17
3.10	CASH COLLATERAL SUBACCOUNT	17
3.11	GRANT OF SECURITY INTEREST; APPLICATION OF FUNDS	18
3.12	PROPERTY CASH FLOW ALLOCATION.	18
3.13	EXISTING TI/LC OBLIGATIONS RESERVES.	19
3.14	WEST BROAD SSDS RESERVE.	19

3.15

DISBURSEMENTS UPON PARTIAL RELEASE.

REPRESENTATIONS & WARRANTIES

4.1	ORGANIZATION; SPECIAL PURPOSE	20
4.2	PROCEEDINGS; ENFORCEABILITY	20
4.3	NO CONFLICTS	21
4.4	LITIGATION	21
4.5	AGREEMENTS	21
4.6	TITLE	22
4.7	NO BANKRUPTCY FILING	22
4.8	FULL & ACCURATE DISCLOSURE	22
4.9	TAX FILINGS	23
4.10	ERISA; NO PLAN ASSETS	23
4.11	COMPLIANCE	23
4.12	CONTRACTS	24
4.13	FEDERAL RESERVE REGULATIONS; INVESTMENT COMPANY ACT	24
4.14	EASEMENTS, UTILITIES & PUBLIC ACCESS	24
4.15	PHYSICAL CONDITION	24
4.16	LEASES	25
4.17	FRAUDULENT TRANSFER	25
4.18	OWNERSHIP OF BORROWER	25
4.19	MANAGEMENT AGREEMENT	25
4.20	HAZARDOUS SUBSTANCES	26
4.21	NAME; PRINCIPAL PLACE OF BUSINESS	26
4.22	OTHER DEBT	26
4.23	EMBARGOED PERSON	26
4.24	ANTI-MONEY LAUNDERING	27
4.25	EQUITY INVESTMENT	27

COVENANTS

5.1	EXISTENCE	27
5.2	TAXES	27
5.3	REPAIRS; MAINTENANCE & COMPLIANCE; ALTERATIONS.	28
5.4	PERFORMANCE OF OTHER AGREEMENTS.	29

5.5	COOPERATE IN LEGAL PROCEEDINGS	29
5.6	FURTHER ASSURANCES	29
5.7	ENVIRONMENTAL MATTERS.	29
5.8	TITLE TO THE PROPERTY; LIENS	31
5.9	LEASES.	31
5.10	ESTOPPEL STATEMENT	33
5.11	PROPERTY MANAGEMENT.	33
5.12	SPECIAL PURPOSE BANKRUPTCY REMOTE ENTITY	34
5.13	INTENTIONALLY OMITTED.	34
5.14	CHANGE IN BUSINESS OR OPERATION OF PROPERTY	34
5.15	ZONING	34
5.16	NO JOINT ASSESSMENT	35
5.17	PRINCIPAL PLACE OF BUSINESS	35
5.18	CHANGE OF NAME, IDENTITY OR STRUCTURE	35
5.19	INDEBTEDNESS	35
5.20	LICENSES	35
5.21	COMPLIANCE WITH RESTRICTIVE COVENANTS, ETC	35
5.22	ERISA.	35
5.23	PROHIBITED TRANSFERS	36
5.24	LIENS	36
5.25	DISSOLUTION	36
5.26	EXPENSES	36
5.27	INDEMNITY	37
5.28	EMBARGOED PERSON.	38
5.29	ANTI-MONEY LAUNDERING	39
5.30	ACCESS TO PROPERTY	39
5.31	MODIFICATIONS AND WAIVERS.	39
5.32	CERTAIN ADDITIONAL RIGHTS OF LENDER (VCOC)	40
5.33	O&M PROGRAM	40
5.34	RIGHT TO PARTIAL RELEASE	40
5.35	MVB BANK AND EAGLEBANK.	43
5.36	PROPERTY SECURITY.	43

NOTICES & REPORTING

iii

6.1	NOTICES	43
6.2	BORROWER NOTICES AND DELIVERIES	44
6.3	FINANCIAL REPORTING.	45

INSURANCE; CASUALTY; CONDEMNATION

7.1	INSURANCE.	47
7.2	CASUALTY.	51
7.3	CONDEMNATION.	52
7.4	APPLICATION OF PROCEEDS OR AWARD.	52

DEFAULTS

	8.1	EVENTS OF DEFAULT	54
	8.2	REMEDIES.	56

SPECIAL PROVISIONS

9.1

SALE OF NOTE; SECONDARY MARKET TRANSACTION, SYNDICATION.

10.

MISCELLANEOUS

10.1	EXCULPATION	61
10.2	BROKERS AND FINANCIAL ADVISORS	65
10.3	RETENTION OF SERVICER AND CUSTODIAN	66
10.4	SURVIVAL	66
10.5	LENDER’S DISCRETION	66
10.6	GOVERNING LAW.	67
10.7	MODIFICATION, WAIVER IN WRITING	68
10.8	TRIAL BY JURY	68
10.9	HEADINGS/SCHEDULES/EXHIBITS	69
10.10	SEVERABILITY	69
10.11	PREFERENCES	69
10.12	CERTAIN WAIVERS	69
10.13	REMEDIES OF BORROWER	69
10.14	PRIOR AGREEMENTS	70
10.15	OFFSETS, COUNTERCLAIMS AND DEFENSES	70
10.16	PUBLICITY	70
10.17	NO USURY	71
10.18	CONFLICT; CONSTRUCTION OF DOCUMENTS	71

10.19	NO THIRD PARTY BENEFICIARIES	71
10.20	YIELD MAINTENANCE PREMIUM	71
10.21	ASSIGNMENT	72
10.22	SET-OFF	72
10.23	COUNTERPARTS	72
10.24	RIGHT OF FIRST OFFER TO REFINANCE LOAN.	72
10.25	PROOFS OF CLAIM	73
10.26	WAIVER OF STAY	73

LOAN AGREEMENT

THIS LOAN AGREEMENT dated as of December 27, 2019 (as the same may be modified, supplemented, amended or otherwise changed, this “Agreement”) between BSV COLONIAL OWNER LLC, BSV LAMONTICELLO OWNER LLC AND BSV WEST BROAD COMMONS LLC, each a Virginia limited liability company, BSV CRESTVIEW SQUARE LLC AND BSV CORAL HILLS LLC, each a Maryland limited liability company, and BSV DEKALB LLC, a Pennsylvania limited liability company (individually and collectively, as the context may require, together with its permitted successors and assigns, “Borrower”), and BIG REAL ESTATE FINANCE I, LLC, a Delaware limited liability company (together with its successors and assigns, “Lender”).

1. DEFINITIONS; PRINCIPLES OF CONSTRUCTION

1.1 DEFINITIONS. All capitalized terms used herein and not otherwise defined herein shall have the meanings set forth in Schedule 1 attached hereto.

1.2 PRINCIPLES OF CONSTRUCTION. Unless otherwise specified, (i) all references to sections and schedules are to those in this Agreement, (ii) the words “hereof”, “herein” and “hereunder” and words of similar import refer to this Agreement as a whole and not to any particular provision, (iii) all definitions are equally applicable to the singular and plural forms of the terms defined, (iv) the word “including” means “including but not limited to”, and (v) accounting terms not specifically defined herein shall be construed in accordance with GAAP or tax accounting principles, in either case consistently applied.

2. GENERAL LOAN TERMS

2.1 THE LOAN. Lender is making a loan (the “Loan”) to Borrower on the date hereof, in the maximum, original principal amount of up to SIXTY-SIX MILLION EIGHT HUNDRED FIFTY THOUSAND AND 00/100 DOLLARS ($66,850,000.00), which shall, subject to Section 2.9 below, mature on the Stated Maturity Date. Borrower acknowledges receipt of the Initial Advance, the proceeds of which are being and shall be used to: (i) repay and discharge existing loans relating to the Property, (ii) fund certain of the Subaccounts, and (iii) pay transaction costs. Any excess proceeds may be used for any lawful purpose. No amount repaid in respect of the Loan may be re-borrowed. Borrower hereby represents and warrants to Lender that, in connection with the closing of the Loan, none of Borrower, Guarantor or any officer, director, employee or Affiliate of Borrower or Guarantor will, directly or indirectly, receive any of the distributions designated for those Persons identified as Class A Members on Schedule 11 attached hereto.

2.2 ADDITIONAL ADVANCES. On the date hereof, Lender has advanced a portion of the Loan in an amount of SIXTY-THREE MILLION SEVEN HUNDRED SEVENTY-NINE THOUSAND FIVE HUNDRED AND 00/100 DOLLARS ($63,779,500.00) (the “Initial Advance”). A portion of the proceeds of the Loan in an amount equal to THREE MILLION SEVENTY THOUSAND FIVE HUNDRED AND 00/100 DOLLARS ($3,070,500.00) (the “Future Advance”) shall not be advanced on the Closing Day by Lender and shall not be considered part of the outstanding principal balance of the Loan and shall not accrue interest until such time as, either (i) the same is advanced by Lender in accordance with the terms of Section 2.2.1 or (ii) any unfunded portion of the Future Advance is funded into the Leasing Reserve as provided in Section 2.2.2 below. Concurrently with any advance of Loan proceeds hereunder, Borrower shall pay all reasonable out-of-pocket costs and expenses incurred by Lender, including, but not limited to, reasonable costs associated and incurred with the preparation and review of third party reports and reasonable attorneys’ fees based on the conditions set forth in Section 2.2.1.

2.2.1 FUTURE ADVANCE. So long as no Event of Default has occurred and is continuing, subject to the satisfaction of the conditions set forth herein, Lender shall make one or more advances in an aggregate amount not to exceed the principal amount of the Future Advance for Approved Leasing Expenses. The making of any advance shall not be deemed a waiver of Lender’s rights and/or remedies hereunder, nor shall it be construed to be a waiver of any of the conditions precedent to Lender’s obligations to make further or future advances of the Future Advance. The Future Advance shall be subject to Borrower’s compliance with the following conditions precedent to Lender’s satisfaction:

(a) No Event of Default has occurred and is continuing at the time of an advance of any portion of the Future Advance;

(b) Borrower shall submit completed duplicate original requests for each advance, certified as true and correct by Borrower, to Lender and Servicer (an “Advance Request”), setting forth the Future Advance amount desired and the purpose of the advance, not later than the fifteenth (15th) day of the calendar month preceding the Payment Date on which the requested advance is to be made and, subject to the other terms and conditions of this Section 2.2.1, Lender shall fund such Future Advance on such Payment Date;

(c) Borrower shall not submit more than one (1) Advance Request in any calendar month or any Advance Request for an amount less than Fifty Thousand and No/100 Dollars ($50,000.00) (except for the final advance of the Future Advance);

(d) Prior to the funding of any amount requested in the Advance Request, Lender shall have received an Officer’s Certificate certifying (v) that such funds will be used only to pay Approved Leasing Expenses and a description thereof, (w) that all outstanding trade payables (other than those to be paid from the requested disbursement or those constituting Permitted Indebtedness) have been paid in full, (x) that the same has not been the subject of a previous disbursement, (y) that all previous disbursements have been used only to pay the previously identified Approved Leasing Expenses, and (z) that any construction work associated with such Approved Leasing Expenses has been completed in good and workmanlike manner and in accordance with all applicable Legal Requirements and in accordance with approved plans and specifications therefor, and remaking, as of the date of the request, and as of the date of funding such request, each of the representations and warranties in Article 4 below;

(e) Borrower shall have complied with and satisfied all General Construction Work Requirements;

(f) Lender shall have received such other evidence as Lender shall reasonably request that the work to be paid by the requested advance has been completed in accordance with all General Construction Work Requirements and all applicable Legal Requirements; and

(g) Borrower shall have executed and delivered to Lender such other certificates, documents or instruments as Lender may reasonably require, and shall have provided to Lender such other information or materials reasonably required by Lender.

2.2.2 LEASING RESERVE. If all or any part of the Future Advance has not been advanced in accordance with Section 2.2.1 above on or before the first anniversary of the date hereof, then, Lender shall have the right, in its sole discretion, to advance the remaining balance of the Future Advance to Borrower, in which event Borrower shall deposit such advance with Lender and Lender shall cause such amount to be transferred to a Subaccount and shall be held by Lender as a reserve (the “Leasing Reserve”) in accordance with the terms of this Section 2.2.2. From and after the date of the advance by Lender of the remaining balance of the Future Advance in accordance with this Section 2.2.2, the amount thereof shall be considered part of the outstanding principal balance of the Loan and shall accrue interest as provided in Section 2.3 below. Borrower shall have the right to draw upon the Leasing Reserve on the same terms and conditions upon which Borrower could request an advance under Section 2.2.1 above. Notwithstanding anything to the contrary contained in this Section 2.2, upon the occurrence and during the continuance of an Event of Default, Lender may apply all amounts deposited into the Leasing Reserve and other proceeds of repayment in such order and in such manner as Lender shall elect in its sole and absolute discretion.

2.3 INTEREST; MONTHLY PAYMENTS.

2.3.1 GENERALLY. From and after the date hereof, interest on the unpaid Principal shall accrue at the Interest Rate and be payable as provided herein. On the date hereof, Borrower shall pay interest on the unpaid Principal from the date hereof through and including December 31, 2019 and commencing on February 1, 2020 and on each Payment Date thereafter through and including the Maturity Date, Borrower shall pay interest on the unpaid Principal accrued and accruing through the last day of the applicable Interest Period; provided, however, if the Stated Maturity Date has been extended to the Extended Maturity Date pursuant to Section 2.9 hereof, then on each Payment Date from the Stated Maturity Date through and including the Extended Maturity Date, Borrower shall also pay to Lender the applicable Debt Service. All accrued and unpaid interest and other amounts under the Note, this Agreement and the other Loan Documents shall be due and payable on the Maturity Date. If the Loan is repaid on any date other than on a Payment Date (whether prior to or after the Stated Maturity Date), Borrower shall also pay interest that would have accrued on such repaid Principal to but not including the next Payment Date. During the continuance of an Event of Default, all proceeds of repayment, including any payment or recovery on the Property (whether through foreclosure or otherwise) shall, unless otherwise provided in the Loan Documents, be applied in such order and in such manner as Lender shall elect in Lender’s sole and absolute discretion.

2.3.2 DEFAULT RATE. After the occurrence and during the continuance of an Event of Default, the entire unpaid Debt shall bear interest at the Default Rate, and shall be payable upon demand from time to time, to the extent permitted by applicable law.

2.3.3 TAXES. Any and all payments by Borrower hereunder and under the other Loan Documents shall be made free and clear of and without deduction for any and all present or future taxes, levies, imposts, deductions, charges or withholdings, and all liabilities with respect thereto, excluding taxes imposed on Lender’s income, and franchise taxes imposed on Lender by law or regulation of any Governmental Authority (all such non-excluded taxes, levies, imposts, deductions, charges, withholdings and liabilities being hereinafter referred to in this Section as “Applicable Taxes”). If Borrower shall be required by law to deduct any Applicable Taxes from or in respect of any sum payable hereunder to Lender, the following shall apply: (i) the sum payable shall be increased as may be necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section), Lender receives an amount equal to the sum it would have received had no such deductions been made, (ii) Borrower shall make such deductions and (iii) Borrower shall pay the full amount deducted to the relevant taxation authority or other authority in accordance with applicable law. Payments pursuant to this Section shall be made within ten (10) days after the date Lender makes written demand therefor.

2.3.4 BREAKAGE INDEMNITY. Borrower shall indemnify Lender against any loss or expense which Lender actually sustains or incurs in liquidating or redeploying deposits from third parties acquired to effect or maintain the Loan or any part thereof as a consequence of (i) any payment or prepayment of the Loan or any portion thereof made on a date other than a Payment Date, and (ii) any default in payment or prepayment of the Principal or any part thereof or interest accrued thereon, as and when due and payable (at the date thereof or otherwise), and sums which it is entitled to receive pursuant to this Section. A statement as to any additional amounts payable pursuant to this Section submitted by Lender to Borrower shall be conclusive in the absence of manifest error. Borrower’s obligations under this Section are in addition to Borrower’s obligations to pay any Yield Maintenance Premium applicable to any payment or prepayment of Principal.

2.3.5 REQUIREMENTS OF LAW.

(a) If any Legal Requirement or any change in the interpretation or application thereof or compliance by Lender with any request or directive (whether or not having the force of law) from any central bank or other Governmental Authority made subsequent to the date hereof:

(i) shall subject Lender to any tax of any kind whatsoever with respect to this Agreement, the Note or the Loan (excluding net income taxes) or change the basis of taxation of payments to Lender in respect thereof;

(ii) shall impose, modify or hold applicable any reserve, special deposit, compulsory advance or similar requirement against assets held by, deposits or other liabilities in or for the account of, advances or other extensions of credit by, or any other acquisition of funds by, any office of Lender which is not otherwise included in the determination of the LIBOR hereunder; or

(iii) shall impose on Lender any other condition;

and the result of any of the foregoing is to increase the cost to Lender, by an amount which Lender deems to be material, of making or maintaining the Loan or to reduce any amount receivable hereunder in respect thereof, then, in any such case, Borrower shall, from time to time, upon receipt of prior written notice of not less than ten (10) Business Days of such fact and a reasonably detailed description of the circumstances, promptly pay Lender such additional amounts as will compensate Lender for such increased cost or reduced amount receivable (provided such additional amounts are then being charged by Lender to its borrowers under similar loans generally) and are not prohibited by such Legal Requirements to be charged back.

(b) If Lender shall have determined that the adoption of or any change in any Legal Requirement regarding capital adequacy or in the interpretation or application thereof or compliance by Lender or any corporation controlling Lender with any request or directive regarding capital adequacy (whether or not having the force of law) from any Governmental Authority made subsequent to the date hereof shall have the effect of reducing the rate of return on Lender’s or such corporation’s capital as a consequence of its obligations hereunder by an amount deemed by Lender to be material (taking into consideration Lender’s or such corporation’s policies with respect to capital adequacy), then from time to time, Borrower shall promptly, upon no less than thirty (30) days’ notice from Lender, pay to Lender such additional amount or amounts as will compensate Lender for such reduction (provided such additional amounts are then being charged by Lender to its borrowers under similar loans generally).

If Lender becomes entitled to claim any additional amounts pursuant to this Section, it shall promptly notify Borrower of the event by reason of which it has become so entitled. A certificate as to any additional amounts payable pursuant to this subsection submitted by Lender to Borrower shall be conclusive in the absence of manifest error or the provision of immediate proof by Borrower to the contrary.

2.4 LOAN REPAYMENT.

2.4.1 REPAYMENT. Borrower shall repay the entire outstanding principal balance of the Note in full on the Maturity Date, together with interest thereon to (but excluding) the date of repayment and any other amounts due and owing under the Loan Documents. Except during the continuance of an Event of Default, all proceeds of any repayment, including any prepayments of the Loan, shall be applied by Lender as follows in the following order of priority: First, to accrued and unpaid interest at the Interest Rate; Second, to Principal; Third, to the Exit Fee and any other amounts then due and owing under the Loan Documents, including the Yield Maintenance Premium (if such repayment or prepayment occurs on or prior to the Yield Maintenance Date). If prior to the Stated Maturity Date (or the Extended Maturity Date, as applicable), the Debt is accelerated by reason of an Event of Default, then Lender shall be entitled to receive, in addition to the unpaid Principal and accrued interest and other sums due under the Loan Documents, an amount equal to the Yield Maintenance Premium (if the Maturity Date is accelerated to a date on or prior to the Yield Maintenance Date) and Exit Fee. During the continuance of an Event of Default, all proceeds of repayment, including any payment or recovery on the Property (whether through foreclosure, deed in lieu of foreclosure, or otherwise) shall, unless otherwise provided in the Loan Documents, be applied in such order and in such manner as Lender shall elect in Lender’s sole and absolute discretion.

2.4.2 MANDATORY PREPAYMENTS. The Loan is subject to mandatory prepayment in certain instances of Insured Casualty or Condemnation (each a “Casualty/Condemnation Prepayment”), in the manner and to the extent set forth in Section 7.4.2 and as provided in this Agreement (collectively, a “Mandatory Prepayment”). Each Casualty/Condemnation Prepayment, after deducting Lender’s costs and expenses (including reasonable attorneys’ fees and expenses) in connection with the settlement or collection of the Proceeds or Award, and each other Mandatory Prepayment shall be applied in the same manner as repayments under Section 2.4.1, and if such Mandatory Prepayment is made on any date other than a Payment Date, then such Mandatory Payment shall include interest that would have accrued on the Principal prepaid to but not including the next Payment Date. Provided that no Event of Default is continuing, any Casualty/Condemnation Prepayment under this Section shall be without the payment of the Yield Maintenance Premium, but subject to payment of the Exit Fee.

2.4.3 OPTIONAL PAYMENTS. Borrower shall have the right to prepay all, but not part (except as set forth in Section 5.34 hereof), of the Principal on any Payment Date provided that Borrower gives Lender at least thirty (30) days’ (and, prior to the Yield Maintenance Date, not more than sixty (60) days’), prior written notice thereof and such prepayment is accompanied by (a) if prepayment is made prior to the Yield Maintenance Date, the Yield Maintenance Premium, and (b) the Exit Fee applicable thereto. If any such prepayment is not made on a Payment Date, Borrower shall also pay interest that would have accrued on such prepaid Principal to but not including the next Payment Date.

2.5 RELEASE OF PROPERTY. Lender shall, upon the written request and at the expense of Borrower, upon payment in full of the Debt in accordance herewith, release or, if requested by Borrower, assign to Borrower’s designee (without representation or warranty by and without any recourse against Lender whatsoever) the Lien of the Loan Documents if not theretofore released.

2.6 PAYMENTS & COMPUTATIONS.

2.6.1 MAKING OF PAYMENTS. Each payment by Borrower shall be made in funds settled through New York Clearing House Interbank Payment Systems or other funds immediately available to Lender by 11:00 a.m., New York City time, on the date such payment is due, to Lender by deposit to such account as Lender may designate by written notice to Borrower. All such payments shall be made irrespective of, and without any deduction, set-off or counterclaim whatsoever and are payable without relief from valuation and appraisement laws and with all costs and charges incurred in the collection or enforcement thereof, including attorneys’ fees and court costs.

2.6.2 COMPUTATIONS. Interest payable under the Loan Documents shall be computed on the basis of the actual number of days elapsed over a 360-day year.

2.6.3 LATE PAYMENT CHARGE. If any Principal, interest or other sum due under any Loan Document (other than the Principal due on the Maturity Date) is not paid by Borrower within five (5) days after the date on which it is due, Borrower shall pay to Lender upon demand an amount equal to the lesser of five percent (5%) of such unpaid sum or the maximum amount permitted by applicable law (the “Late Payment Charge”), in order 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. Such amount shall be secured by the Loan Documents.

2.7 INTEREST RATE CAP AGREEMENTS.

2.7.1 INTEREST RATE CAP AGREEMENT. As of the date hereof, Borrower has entered into, made all payments required under, and satisfied all conditions precedent to the effectiveness of, an interest rate protection agreement that satisfies all of the following conditions (such interest rate protection agreement together with (i) any extensions thereof or (ii) any other interest rate protection agreement entered into pursuant to this Agreement or any other Loan Documents (including, without limitation, Section 2.7.5 and Section 2.9 hereof), being referred to herein as the “Interest Rate Cap Agreement”):

(a) The Interest Rate Cap Agreement is with a financial institution having a long term, unsecured and unsubordinated debt rating of at least “A+” by S&P and “A1” by Moody’s (or the equivalent rating from another Rating Agency acceptable to Lender, an “Acceptable Counterparty”); has a term ending no earlier than the Stated Maturity Date; is an interest rate cap in respect of a notational amount not less than the maximum Principal amount of the Loan that shall have the effect of capping LIBOR at 3.50% per annum; and provided that the only obligation of Borrower thereunder is the making of a single payment upon the execution and delivery thereof. For the purposes hereof, if the obligations of the counterparty are guaranteed, under the terms of a guaranty acceptable to Lender in its sole discretion, by a financial institution having a long term, unsecured and unsubordinated debt rating of at least “A-” by S&P and “A3” by Moody’s or the equivalent rating from another Rating Agency acceptable to Lender, then such counterparty shall be deemed to be an Acceptable Counterparty for the purposes of this Agreement.

(b) Borrower’s interest in such Interest Rate Cap Agreement has been assigned to Lender pursuant to documentation satisfactory to Lender in form and substance, and the counterparty to such Interest Rate Cap Agreement has executed and delivered to Lender an acknowledgment of such assignment, which acknowledgment shall be satisfactory to Lender in form and substance and, without limitation, shall include such counterparty’s agreement to (i) pay in accordance with the written direction of Lender, subject to Section 2.7.4 hereof, all sums payable by such counterparty pursuant to the Interest Rate Cap Agreement and (ii) designate a successor counterparty under the Interest Rate Cap Agreement, which successor counterparty shall satisfy the criteria set forth in clause (a) above and this clause (b), not later than ten (10) Business Days after the long term, unsecured and unsubordinated debt rating of such counterparty, or its guarantor, as applicable, is downgraded below “A-” by S&P or “A3” by Moody’s.

(c) In connection with an Interest Rate Cap Agreement entered into pursuant to this Section 2.7, Borrower shall obtain and deliver to Lender an opinion of counsel from counsel for the counterparty (and, if applicable, any guarantor) (which counsel may be in-house counsel for the counterparty and/or such guarantor) (upon which Lender and its successors and assigns and the Rating Agencies may rely), which shall provide, in relevant part, that:

(i) the counterparty (and, if applicable, any guarantor) is duly organized, validly existing, and in good standing under the laws of its jurisdiction of incorporation or organization and has the organizational power and authority to execute and deliver, and to perform its obligations under, the Interest Rate Cap Agreement and any other agreement which the counterparty (and, if applicable, any guarantor) has executed and delivered pursuant thereto;

(ii) the execution and delivery of the Interest Rate Cap Agreement by the counterparty (and, if applicable, any guarantor), and any other agreement which the counterparty (and, if applicable, any guarantor) has executed and delivered pursuant thereto, and the performance of its obligations thereunder have been and remain duly authorized by all necessary action and do not contravene any provision of its certificate of incorporation or by-laws (or equivalent organizational documents) or any law, regulation or contractual restriction binding on or affecting it or its property;

(iii) all consents, authorizations and approvals required for the execution and delivery by the counterparty (and, if applicable, any guarantor) of the Interest Rate Cap Agreement, and any other agreement which the counterparty (and, if applicable, any guarantor) has executed and delivered pursuant thereto, and the performance of its obligations thereunder have be obtained and remain in full force and effect, all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with any governmental authority or regulatory body is required for such execution, delivery and performance; and

(iv) the Interest Rate Cap Agreement, and any other agreement which the counterparty (and, if applicable, any guarantor) has executed and delivered pursuant thereto, has been duly executed and delivered by the counterparty (and, if applicable, any guarantor) and constitutes the legal, valid and binding obligation of the counterparty (and, if applicable, any guarantor), enforceable against the counterparty (and, if applicable, any guarantor) in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).

2.7.2 EXECUTION OF DOCUMENTS. Borrower shall promptly execute and deliver to the counterparty of the Interest Rate Cap Agreement such confirmations and agreements as may be requested by such counterparty in connection with such Interest Rate Cap Agreement.

2.7.3 NO OBLIGATION OF LENDER. Borrower agrees that Lender shall not have any obligation, duty or responsibility to Borrower or to any other Person by reason of, or in connection with, any Interest Rate Cap Agreement (including any duty to provide or arrange any Interest Rate Cap Agreement, to consent to any mortgage or pledge of the Property or any portion thereof as security for Borrower’s performance of its obligations under any Interest Rate Cap Agreement, or to provide any credit or financial support for the obligations of Borrower or any other Person thereunder or with respect thereto). No Interest Rate Cap Agreement shall alter, impair, restrict, limit or modify in any respect the obligation of Borrower to pay interest on the Loan as and when the same becomes due and payable in accordance with the provision of the Loan Documents.

2.7.4 RECEIPTS FROM INTEREST RATE CAP AGREEMENTS. Borrower shall cause all payments made by the counterparty to the Interest Rate Cap Agreement to be deposited into the DACA Account, which payments shall be applied in the same manner as Rents are applied under Section 3.11.

2.7.5 DOWNGRADE OF COUNTERPARTY. In the event of any downgrade, withdrawal or qualification of the rating of the issuer, or its guarantor, as applicable, of the Interest Rate Cap Agreement below “A” by S&P or “A2” by Moody’s (or the equivalent rating from another Rating Agency acceptable to Lender, if applicable), Borrower shall not later than ten (10) Business Days following receipt of notice from Lender of such downgrade, withdrawal or qualification, (i) replace the Interest Rate Cap Agreement with a replacement Interest Rate Cap Agreement from an Acceptable Counterparty (with terms identical to the Interest Rate Cap Agreement being replaced, or otherwise approved by Lender in its sole and absolute discretion) or (ii) in the case of such downgrade, withdrawal or qualification, cause the counterparty to deliver collateral to secure Borrower’s exposure under the Interest Rate Cap Agreement in such amount and pursuant to such terms as are subject to approval of Lender, in its sole and absolute discretion; provided, however, if the counterparty ceases to have a long term rating of at least “BBB+” by S&P, and “Baa1” by Moody’s, then a replacement Interest Rate Cap Agreement from an Acceptable Counterparty (with terms identical to the Interest Rate Cap Agreement being replaced, or otherwise approved by Lender in its sole and absolute discretion) shall be required not later than sixty (60) days following such downgrade, withdrawal or qualification.

2.8 FEES.

2.8.1 STRUCTURING FEE. On the date hereof, Borrower shall pay to Lender a structuring fee of SIX HUNDRED SIXTY-EIGHT THOUSAND FIVE HUNDRED AND 00/100 DOLLARS ($668,500.00).

2.8.2 EXIT FEE. Upon repayment or prepayment of Principal, Borrower shall pay to Lender on the date of such repayment or prepayment the Exit Fee applicable thereto (other than with respect to the monthly Debt Service payments, which Exit Fee shall be deferred until payment in full at Maturity Date). Upon any acceleration of the Loan, Borrower shall immediately pay to Lender on account of the Exit Fee the amount by which (i) THREE HUNDRED THIRTY-FOUR THOUSAND TWO HUNDRED FIFTY AND 00/100 DOLLARS ($334,250.00) exceeds (ii) the total amount of Exit Fees theretofore paid by Borrower pursuant to this Section. The Exit Fee hereunder shall be deemed to be earned by Lender upon the funding of the Loan.

2.9 EXTENSION OPTION. Borrower shall have the right, at its option, to extend the Term for two (2) periods of twelve (12) months each (the date to which the Term is extended pursuant to each exercised option being the “Extended Maturity Date”) by giving notice of each such extension to Lender at least thirty (30) days, and not more than ninety (90) days, prior to the originally scheduled Stated Maturity Date, in the case of the first extension option, and prior to the first Extended Maturity Date in the case of the second extension option. Upon receipt of such request to extend the Term (individually and collectively as the context may require, the “Extension Term”), Lender will promptly confirm to Borrower in writing whether or not the Stated Maturity Date will be so extended, which extension will be granted upon the satisfaction of the following conditions:

(a) no Event of Default exists, is pending or has been threatened at the time such request is made and on the originally scheduled Stated Maturity Date or first Extended Maturity Date, as the case may be;

(b) Borrower delivers to Lender an Officer’s Certificate confirming the accuracy of the information contained in clause (a) above and remaking, as of the date of the exercise of the applicable extension option and the date of the commencement of the applicable Extension Term, each of the representations and warranties in Article 4 below;

(c) Borrower pays to Lender (i) for the first extension option so exercised by Borrower concurrently with the request to so extend the Term, an extension fee in an amount equal to 0.25% of the outstanding Principal balance of the Loan; and (ii) for the second extension option so exercised by Borrower concurrently with the request to so extend the Term, an extension fee in an amount equal to 0.50% of the outstanding Principal balance of the Loan;

(d) as of the date of Borrower’s notice exercising its option to extend for the Extension Term and on the commencement of the applicable Extension Term, no material adverse change shall have occurred with respect to market conditions or to the condition, financial or otherwise, business operations, assets, liabilities or prospects of the Properties, collectively, Borrower or Guarantor (a “Material Adverse Change”), as determined by Lender in its reasonable discretion;

(e) as of the date of Borrower’s notice exercising its option to extend for the applicable Extension Term and on the originally scheduled Stated Maturity Date, the Debt Yield is at least 9.00%; provided that Borrower may, at its option, prepay the Principal in an amount necessary to achieve the Debt Yield required hereunder, subject to the payment of any applicable Exit Fee which may be required in accordance with the terms and conditions of Section 2.4.3 of this Agreement;

(f) as of the date of Borrower’s notice exercising its option to extend for the applicable Extension Term and on the originally scheduled Stated Maturity Date, the Debt Service Coverage Ratio, based upon a debt service constant (for a loan amortizing at the rate for the applicable Extension Term), shall be equal to at least 1.25:1.00; provided that Borrower may, at its option, prepay the Principal in an amount necessary to achieve the Debt Service Coverage Ratio required hereunder, subject to the payment of any applicable Exit Fee which may be required in accordance with the terms and conditions of Section 2.4.3 of this Agreement;

(g) as of the date of Borrower’s notice exercising its option to extend for the applicable Extension Term and on the originally scheduled Stated Maturity Date, the Loan-to-Value Ratio shall not exceed seventy-five percent (75.0%); provided that Borrower may, at its option, prepay the Principal in an amount necessary to achieve the Loan-to-Value Ratio required hereunder, subject to the payment of any applicable Exit Fee which may be required in accordance with the terms and conditions of Section 2.4.3 of this Agreement;

(h) Borrower shall execute or cause the execution of all documents reasonably required by Lender to effect the exercise of the option to extend for the Extension Term and shall deliver to Lender, at Borrower’s sole cost and expense, such title insurance endorsements reasonably required by Lender;

(i) Borrower shall pay all of Lender’s reasonable out-of-pocket costs and expenses in connection with the option to extend for the Extension Term;

(j) on or prior to the originally scheduled Stated Maturity Date, in the case of the first extension option, and on or prior to the first Extended Maturity Date, in the case of the second extension option, Borrower extends the term of the Interest Rate Cap Agreement to a date not earlier than the applicable Extended Maturity Date, and which extension or new agreement is on the same terms set forth in Section 2.7.1 and has the effect of capping LIBOR at a percentage per annum on a notational principal amount not less than the maximum principal amount of the Loan, which percentage would result in a minimum Debt Service Coverage Ratio of 1.10:1 (based on Debt Service at the LIBOR Cap and Underwritten Net Cash Flow); and

(k) Borrower shall have executed and delivered to Lender such other certificates, documents or instruments as Lender may reasonably require, and shall have provided to Lender such other information or materials reasonably required by Lender (or, if applicable, any Rating Agency), in each case, in connection with the exercise of the option to extend the Loan for the Extension Term.

If Borrower is unable to satisfy all of the foregoing conditions within the applicable time frames for each, Lender shall have no obligation to extend the Stated Maturity Date hereunder, and Lender shall refund to Borrower the amount of the extension fee actually paid by Borrower to Lender, if any, pursuant to clause (c) of this Section 2.9, less Lender’s reasonable out-of-pocket costs and expenses due pursuant to clause (i) of this Section 2.9.

2.10 CERTAIN PAYMENTS. Notwithstanding anything to the contrary contained in this Agreement, in connection with, and for the purposes of, any payment or repayment of all or any portion of the Loan pursuant to Section 2.4.1, 2.4.2 or 2.4.3 on any date after the Payment Date and prior to the Determination Date with respect to the next succeeding Interest Period, LIBOR shall be determined as of the Eurodollar Business Day immediately preceding the date of such payment or prepayment and Lender shall thereafter, reasonably promptly after the occurrence of such next succeeding Determination Date, make any necessary adjustments in the amount actually required to be paid or prepaid based upon LIBOR as determined on such next succeeding Determination Date.

3. CASH MANAGEMENT & RESERVES

3.1 CASH MANAGEMENT ARRANGEMENTS. Borrower shall, or shall cause Manager to, deliver written instructions to all tenants under Leases to deliver all Rents payable thereunder directly into a trust account (the “DACA Account”) maintained by Borrower at a national bank selected by Borrower and approved by Lender in its sole and absolute discretion (the “Clearing Bank”), as more fully described in the Clearing Account Agreement. Borrower shall, and shall cause Manager to deposit into the DACA Account within two (2) Business Days after receipt all amounts received by Borrower or Manager constituting Rents. During a Cash Management Period, funds deposited into the DACA Account shall be swept by the Clearing Bank on a daily basis into an Eligible Account at the Cash Management Bank controlled by Lender (the “Cash Management Account”) and applied and disbursed in accordance with this Agreement and the Cash Management Agreement. Funds in the Cash Management Account shall be invested at Lender’s discretion only in Permitted Investments. Lender will also establish subaccounts of the Cash Management Account which shall at all times be Eligible Accounts (and may be ledger or book entry accounts and not actual accounts) (such subaccounts are referred to herein as “Subaccounts”). Lender may, in its discretion, elect to maintain the deposits and reserves required under this Agreement in an Eligible Account at a bank or other depository selected by Lender other than the Cash Management Bank in which case, all references to the Cash Management Account and any Subaccounts hereunder shall be deemed to include such Eligible Account and the subaccounts of any such Eligible Account and all funds in such Eligible Account shall be invested at Lender’s discretion only in Permitted Investments. The DACA Account, Cash Management Account and any Subaccount (including without limitation the Reserves and Subaccounts established pursuant to Sections 2.2.2 and 3.2 through 3.9 inclusive) will be under the sole control and dominion of Lender, and Borrower shall have no right of withdrawal therefrom. Borrower shall pay for all expenses of opening and maintaining all of the above accounts.

3.2 REQUIRED REPAIRS.

3.2.1 COMPLETION OF REQUIRED REPAIRS. Borrower shall perform and complete each item of the repairs and environmental remedial work at the Property described on Schedule 2 (the “Required Repairs”) within six (6) months of the date hereof or such shorter period of time for such item set forth on Schedule 2.

3.2.2 REQUIRED REPAIR RESERVES. On the date hereof, Borrower shall deposit with Lender the sum of $76,563.00 to complete the Required Repairs and Lender shall cause such amount to be transferred to a Subaccount (the “Required Repairs Subaccount”). Provided no Event of Default shall have occurred and is continuing, Lender shall disburse funds held in the Required Repairs Subaccount to Borrower, within thirty (30) days after the delivery by Borrower to Lender of a request therefor (but not more often than once per month), in increments of at least $25,000 (other than the final disbursement, which may be less), accompanied by the following items (which items shall be in form and substance satisfactory to Lender): (i) an Officer’s Certificate (A) certifying that the Required Repairs or any portion thereof which are the subject of the requested disbursement have been completed in a good and workmanlike manner and in accordance with all applicable Legal Requirements, (B) identifying each Person that supplied materials or labor in connection with such Required Repairs or any portion thereof, and (C) stating that each such Person has been paid in full with respect to the portion of the Required Repairs which is the subject of the requested disbursement; (ii) copies of appropriate Lien waivers or other evidence as Lender shall reasonably request that the work to be reimbursed by the requested disbursement has been completed in accordance with all General Construction Work Requirements and all applicable Legal Requirements and has been fully paid for; (iii) at Lender’s option, a title search for the Property indicating that it is free from all Liens not previously approved by Lender; (iv) a copy of each License required to be obtained with respect to the portion of the Required Repairs which is the subject of the requested disbursement; and (v) such other evidence as Lender shall reasonably request that the Required Repairs which are the subject of the requested disbursement have been completed and fully paid for. Provided no Event of Default shall have occurred and is continuing, upon Borrower’s completion of all Required Repairs in accordance with this Section, Lender shall release any funds remaining in the Required Repairs Subaccount, if any, to Borrower. Any such disbursement of more than $10,000 to pay (rather than reimburse, if permitted by Lender in its sole discretion) for any Required Repairs may, at Lender’s option, be made by joint check payable to Borrower and the payee with respect to such Required Repairs.

3.3 TAXES & INSURANCE. Borrower shall pay to Lender (i) on the date hereof, the amount of $605,836.36, (ii) on each Payment Date, one-twelfth of the Taxes and Other Charges that Lender estimates will be payable during the next twelve (12) months in order to accumulate with Lender sufficient funds to pay all such Taxes and Other Charges at least thirty (30) days prior to their respective due dates and (iii) on each Payment Date, one-twelfth of the Insurance Premiums that Lender estimates will be payable for the renewal of the coverage afforded by the Policies upon the expiration thereof in order to accumulate with Lender sufficient funds to pay all such Insurance Premiums at least thirty (30) days prior to the expiration of the Policies. Such amounts will be transferred by Lender to a Subaccount (the “Tax & Insurance Subaccount”). Provided that no Default or Event of Default has occurred and is continuing, Lender will (a) apply funds in the Tax & Insurance Subaccount to payments of Taxes, Other Charges and Insurance Premiums required to be made by Borrower pursuant to Sections 5.2 and 7.1, provided that Borrower has promptly supplied Lender with notices of all Taxes, Other Charges and Insurance Premiums due, or (b) reimburse Borrower for such amounts upon presentation of evidence of payment; subject, however, to Borrower’s right to contest Taxes and Other Charges in accordance with Section 5.2. In making any payment relating to Taxes, Other Charges and Insurance Premiums, Lender may do so according to any bill, statement or estimate procured from the appropriate public office (with respect to Taxes or Other Charges) or insurer or agent (with respect to Insurance Premiums), without inquiry into the accuracy of such bill, statement or estimate or into the validity of any tax, assessment, sale, forfeiture, tax lien or claim thereof. If Lender determines in its reasonable judgment that the funds in the Tax & Insurance Subaccount will be insufficient to pay (or in excess of) the Taxes, Other Charges or Insurance Premiums next coming due, Lender may increase (or decrease) the monthly contribution required to be made by Borrower to the Tax & Insurance Subaccount.

3.4 CAPITAL EXPENSE RESERVES. Borrower shall pay to Lender $10,138.33 on each Payment Date, for reimbursements of Borrower’s Approved Capital Expenses in accordance with this Section, and Lender will transfer such amounts into a Subaccount (the “CapEx Reserve Subaccount”). Additionally, upon thirty (30) days’ prior notice to Borrower, Lender may reassess the amount of the monthly payment required under this Section from time to time in its reasonable discretion (based upon its then current underwriting standards). Provided that no Default or Event of Default has occurred and is continuing, Lender shall disburse funds held in the CapEx Reserve Subaccount to Borrower, within thirty (30) days after the delivery by Borrower to Lender of a request therefor (but not more often than once per month), in increments of at least $25,000 provided that: (i) such disbursement is for an Approved Capital Expense; (ii) Lender shall have (if it desires) verified (by an inspection conducted at Borrower’s expense, provided that, as long as no Default or Event of Default has occurred and is continuing, Borrower shall not be responsible for the expense of an inspection more than once per calendar quarter, and the expense of each such inspection shall not exceed $2,000.00) performance of the work associated with such Approved Capital Expense; and (iii) the request for disbursement is accompanied by (A) an Officer’s Certificate certifying (v) that such funds will be used to reimburse Borrower for Approved Capital Expenses and a description thereof; (w) that all outstanding trade payables (other than those to be paid from the requested disbursements or those constituting Permitted Indebtedness) have been paid in full; (x) that the same has not been the subject of a previous disbursement; (y) that all previous disbursements have been used to pay the previously identified Approved Capital Expenses and (z) that any construction work associated with such Approved Capital Expenses has been completed in a good and workmanlike manner and in accordance with all applicable Legal Requirements and in accordance with approved plans and specifications therefor and remaking, as of the date of the request, and as of the date of funding such request, each of the representations and warranties in Article 4 below, (B) reasonably detailed documentation satisfactory to Lender as to the amount, necessity and purpose therefor, (C) copies of appropriate Lien waivers or other evidence as Lender shall reasonably request that the Approval Capital Expenses to be reimbursed by the disbursement have been completed in accordance with all General Construction Work Requirements and all applicable Legal Requirements and has been fully paid for and (D) at Lender’s option, a title search for the Property indicating that it is free from all Liens not previously approved by Lender. Any such disbursement of more than $10,000 to pay (rather than reimburse, if permitted by Lender in its sole discretion) for an Approved Capital Expenses may, at Lender’s option, be made by joint check payable to Borrower and the payee on such Approved Capital Expenses.

3.5 ROLLOVER RESERVES.

3.5.1 Borrower shall pay to Lender the sum of $41,862.54 on each Payment Date for reimbursement of Borrower’s Approved Leasing Expenses in accordance with this Section, and Lender will transfer such amounts into a Subaccount (the “Rollover Reserve Subaccount”). Borrower shall also pay to Lender for transfer into the Rollover Reserve Subaccount all Lease Termination Payments due to Borrower. If Lender determines in its reasonable judgment that the funds in the Rollover Reserve Subaccount will be insufficient to pay (or in excess of) the amounts due or to become due for Approved Leasing Expenses, Lender may increase (or decrease) the monthly contribution required to be made by Borrower to the Rollover Reserve Subaccount. Provided that no Default or Event of Default has occurred and is continuing, Lender shall disburse funds held in the Rollover Reserve Subaccount to Borrower, within thirty (30) days after the delivery by Borrower to Lender of a request therefor (but not more often than once per month), in increments of at least $25,000, provided (i) such disbursements is for an Approved Leasing Expense; (ii) Lender shall have (if it desires) verified (and if the requested disbursement equals $50,000 or more, then by an inspection conducted at Borrower’s expense) performance of any construction work associated with such Approved Leasing Expense; and (iii) the request for disbursement is accompanied by (A) an Officer’s Certificate certifying (v) that such funds with be used only to reimburse Borrower for Approved Leasing Expenses and a description thereof, (w) that all outstanding trade payables (other than those to be paid from the requested disbursement or those constituting Permitted Indebtedness) have been paid in full, (x) that the same has not been the subject of a previous disbursement, (y) that all previous disbursements have been used only to reimburse Borrower for the previously identified Approved Leasing Expenses and (z) that any construction work associated with such Approved Leasing Expenses has been completed in good and workmanlike manner and in accordance with all applicable Legal Requirements and in accordance with approved plans and specifications therefor, (B) reasonably detailed supporting documentation as to the amount, necessity and purpose therefor, (C) copies of appropriate Lien waivers or other evidence as Lender shall reasonably request that the Approved Leasing Expenses to be reimbursed by the requested disbursement have been completed in accordance with all General Construction Work Requirements and all applicable Legal Requirements and has been fully paid for, and (D) at Lender’s option, a title search for the Property indicating that it is free from all Liens not previously approved by Lender. Any such disbursement of more than $10,000 to pay (rather than reimburse if permitted by Lender in its sole discretion) for an Approved Leasing Expenses may, at Lender’s option, be made by joint check payable to Borrower and the payee of such Approved Leasing Expenses.

3.5.2 Any Lease Termination Payments and any other funds deposited into the Rollover Reserve Subaccount from the Security Deposit Subaccount in accordance with Section 3.9 below shall be applied, at Lender’s election, towards either (a) subject to the rights of Borrower under the applicable Lease, rent arrearages under such Lease (or to cure any other tenant default under such Lease), or (b) funding any Approved Leasing Expenses which are anticipated to occur in connection with the re-tenanting of the space under the Lease that was the subject of such termination (in accordance with the terms and conditions of Section 3.5.1 above).

3.5.3 If a Cash Trap Trigger Event is caused solely by an Anchor Tenant Trigger Event, until such time as an Anchor Tenant Trigger Cure Event occurs with respect to the subject Anchor Tenant Trigger Event and no other Anchor Tenant Trigger Event remains in existence, Excess Cash shall be deposited into a separate account established by Lender (the “Anchor Tenant Rollover Reserve Account”), which shall not be commingled with, or a subaccount of, the Rollover Reserve Subaccount, in accordance with the terms of the Cash Management Agreement, until such time that Excess Cash equal to the applicable Anchor Tenant Rollover Reserve Cap has been deposited into the Anchor Tenant Rollover Reserve Account. The sweeping of Excess Cash into the Anchor Tenant Rollover Reserve Account shall cease once the balance held in the Anchor Tenant Rollover Reserve Account is at least equal to the then applicable Anchor Tenant Rollover Reserve Cap, and, provided no Event of Default and no other Cash Trap Trigger Event has occurred and is continuing, all amounts on deposit in the Anchor Tenant Rollover Reserve Account in excess of the applicable Anchor Tenant Rollover Reserve Cap shall be released to Borrower. Without limiting the foregoing, at such time as an Anchor Tenant Trigger Cure Event occurs with respect to the subject Anchor Tenant Trigger Event and no other Anchor Tenant Trigger Event remains in existence, then all Excess Cash deposited in the Anchor Tenant Rollover Reserve Account as a result of the subject Anchor Tenant Trigger Event, and remaining after any permitted disbursements therefrom, shall be released to Borrower provided that no Default or Event of Default exists and no other Cash Trap Trigger Event has occurred and is continuing, provided, however, if another Cash Trap Trigger Event is then existing, any balance of the Anchor Tenant Rollover Reserve Account and any other Excess Cash shall be deposited and disbursed in accordance with Section 3.10 below. The depositing of Excess Cash into the Anchor Tenant Rollover Reserve Account shall be in addition to the funds referred to in Section 3.5.1 above. Provided that no Event of Default has occurred and is continuing, Lender shall disburse funds held in the Anchor Tenant Rollover Reserve Account to Borrower for Approved Leasing Expenses relating solely to the Anchor Tenant Premises which are the subject of the applicable Anchor Tenant Trigger Event in accordance with the terms and conditions of Section 3.5.1 hereof.

3.6 FOOD LION RESERVE. On the date hereof, Borrower shall deposit with Lender the sum of $197,400.00 to complete the roof repair work with respect to the Food Lion Premises (the “Food Lion Work”), and Lender shall cause such amount to be transferred to a Subaccount (the “Food Lion Reserve Subaccount”). Borrower shall complete the roof repair work in a good and workmanlike manner and in accordance with all applicable Legal Requirements within eighteen (18) months from the date hereof. Provided no Event of Default shall have occurred and is continuing, Lender shall disburse funds held in the Food Lion Reserve Subaccount to Borrower, within thirty (30) days after the delivery by Borrower to Lender of a request therefor (but not more often than once per month), in increments of at least $25,000 (other than the final disbursement, which may be less), accompanied by the following items (which items shall be in form and substance satisfactory to Lender): (i) an Officer’s Certificate (A) certifying that the Food Lion Work or any portion thereof which is the subject of the requested disbursement has been completed in a good and workmanlike manner and in accordance with all applicable Legal Requirements, (B) identifying each Person that supplied materials or labor in connection with such Food Lion Work or any portion thereof, and (C) stating that each such Person has been paid in full with respect to the portion of the Food Lion Work which is the subject of the requested disbursement; (ii) copies of appropriate Lien waivers or other evidence as Lender shall reasonably request that the work to be reimbursed by the requested disbursement has been completed in accordance with all General Construction Work Requirements and all applicable Legal Requirements and has been fully paid for; (iii) at Lender’s option, a title search for the Property indicating that it is free from all Liens not previously approved by Lender; (iv) a copy of each License required to be obtained with respect to the portion of the Food Lion Work which is the subject of the requested disbursement; and (v) such other evidence as Lender shall reasonably request that the Food Lion Work which is the subject of the requested disbursement have been completed and fully paid for. Provided no Event of Default shall have occurred and is continuing, upon Borrower’s completion of all Food Lion Work in accordance with this Section, Lender shall release any funds remaining in the Food Lion Reserve Subaccount, if any, to Borrower. Any such disbursement of more than $10,000 to pay (rather than reimburse, if permitted by Lender in its sole discretion) for any Food Lion Work may, at Lender’s option, be made by joint check payable to Borrower and the payee with respect to such Food Lion Work.

3.7 OPERATING EXPENSE SUBACCOUNT. During a Cash Management Period, on each Payment Date, a portion of the Rents that have been deposited into the Deposit Account during the immediately preceding Interest Period in an amount equal to the monthly amount set forth in the Approved Operating Budget for the following month as being necessary for payment of Approved Operating Expenses at the Property for such month, shall be transferred into a Subaccount for the payment of Approved Operating Expenses (the “Operating Expense Subaccount”). Provided no Default or Event of Default has occurred and is continuing, and provided further that the balance of the funds on deposit in the Operating Expense Subaccount are sufficient to pay the Approved Operating Expenses then due, Lender shall disburse funds held in the Operating Expense Subaccount to Borrower on or before the twentieth (20^th) day of each calendar month, provided that (i) such disbursement is for an Approved Operating Expense, and (ii) such funds shall be used to pay Approved Operating Expenses. Notwithstanding the foregoing, Lender shall have no liability in the event Cash Management Bank and/or Servicer fails to disburse funds to Borrower.

3.8 CASUALTY/CONDEMNATION SUBACCOUNT. Borrower shall pay, or cause to be paid, to Lender all Proceeds or Awards due to any Casualty or Condemnation to be transferred to a Subaccount (the “Casualty/Condemnation Subaccount”) in accordance with the provisions of Section 7.

3.9 SECURITY DEPOSITS. Borrower shall keep all security deposits in accordance with applicable Legal Requirements and, upon Lender’s request, deliver to Lender a detailed accounting of all security deposits held by Borrower for each applicable Tenant, including, without limitation, the amount of each such security deposit and the account information and financial institution in which the security deposits are held. Upon the occurrence and during the continuance of an Event of Default, Borrower shall, upon Lender’s request, if permitted by applicable Legal Requirements, turn over to Lender the security deposits (and any interest theretofore earned thereon) under Leases, to be held by Lender or Servicer in a Subaccount (the “Security Deposit Subaccount”) subject to the terms of the Leases. Security deposits held in the Security Deposit Subaccount will be released by Lender upon notice from Borrower together with such evidence as Lender may reasonably request that such security deposit is required to be returned to a tenant pursuant to the terms of a Lease or may be applied as Rent pursuant to the rights of Borrower under the applicable Lease. Any letter of credit or other instrument that Borrower receives in lieu of a cash security deposit under any Lease entered into after the date hereof shall (i) be maintained in full force and effect in the full amount unless replaced by a cash deposit as hereinabove described and (ii) if permitted pursuant to any Legal Requirements, name Lender as payee or mortgagee thereunder (or at Lender’s option, be fully assignable to Lender).

3.10 CASH COLLATERAL SUBACCOUNT. If a Cash Management Period shall have commenced, then, subject to Section 3.5.3 hereof, on the immediately succeeding Payment Date and on each Payment Date thereafter during the continuance of such Cash Management Period, all Excess Cash shall be paid to Lender, which amounts shall be transferred by Lender into a Subaccount (the “Cash Collateral Subaccount”) as cash collateral for the Debt. Lender shall have the right, but not the obligation, at any time during the continuance of an Event of Default, in its sole and absolute discretion to apply all sums then on deposit in the Cash Collateral Subaccount to the Debt, in such order and in such manner as Lender shall elect in its sole and absolute discretion, including to make a prepayment of Principal (together with the applicable Yield Maintenance Premium applicable thereto, if such prepayment is made prior to the Yield Maintenance Date). Upon a Cash Trap Trigger Event Cure, provided that no other Cash Trap Trigger Event exists, Lender shall disburse to Borrower the then current balance of the Cash Collateral Subaccount.

3.11 GRANT OF SECURITY INTEREST; APPLICATION OF FUNDS. As security for payment of the Debt and the performance by Borrower of all other terms, conditions and provisions of the Loan Documents, Borrower hereby pledges and assigns to Lender, and grants to Lender a security interest in, all of Borrower’s right, title and interest in and to all Rents and in and to all payments to or monies held in the DACA Account, the Cash Management Account, all Subaccounts created pursuant to this Agreement and any other accounts pledged to Lender pursuant to this Agreement or any other Loan Document, including Reserve Funds, and all other Account Collateral (collectively, the “Accounts”). Borrower hereby grants to Lender a continuing security interest in, and agrees to hold in trust for the benefit of Lender, all Rents and other payments owed to Lender in its possession prior to the (i) payment of such Rents or other amounts to Lender or (ii) deposits of such Rents and other amounts into the DACA Account. Borrower shall not, without obtaining the prior written consent of Lender, further pledge, assign or grant any security interest in any Account, or permit any Lien to attach thereto, or any levy to be made thereon, or any UCC-1 Financing Statements, except those naming Lender as the secured party, to be filed with respect thereto. This Agreement is, among other things, intended by the parties to be a security agreement for purposes of the UCC. Upon the occurrence and during the continuance of an Event of Default, Lender may apply any sums in any Account in any order and in any manner as Lender shall elect in Lender’s sole and absolute discretion without seeking the appointment of a receiver and without adversely affecting the rights of Lender to foreclose the Lien of the Security Instrument or exercise its other rights under the Loan Documents. Accounts shall not constitute trust funds and may be commingled with other monies held by Lender. All interest which accrues on the funds in any Subaccount (other than the Tax and Insurance Subaccount) shall accrue for the benefit of Borrower and shall be taxable to Borrower and shall be added to and disbursed in the same manner and under the same conditions as the principal sum on which said interest accrued. Upon repayment in full of the Debt, all remaining funds in the Subaccounts, if any, shall be promptly disbursed to Borrower.

3.12 PROPERTY CASH FLOW ALLOCATION.

3.12.1 During any Cash Management Period, any amounts deposited into the Cash Management Account up to and including the Business Day prior to a Payment Date (other than (x) Lease Termination Payments, which are to be applied only in accordance with Section 3.5.2, and (y) Proceeds and Awards, which are to be applied only in accordance with Section 3.8, and security deposits, which are to be applied only in accordance with Section 3.9) shall be applied on such Payment Date as follows in the following order of priority: (i) First, to make payments into the Tax and Insurance Subaccounts as required under Section 3.3; (ii) Second, to Lender to pay the interest and Principal (if applicable) due on each Payment Date (plus, if applicable, interest at the Default Rate and all amounts, other than those described under other clauses of this Section 3.12.1, then due Lender under the Loan Documents); (iii) Third, to pay the monthly portion of the fees charged by the Cash Management Bank and/or Servicer, as applicable, (iv) Fourth, to make payments into the CapEx Reserve Subaccount as required under Section 3.4; (v) Fifth, to make payments into the Rollover Reserve Subaccount as required under Section 3.5; (vi) Sixth, to make payments for Approved Operating Expenses as required under Section 3.7; and (vii) Lastly, to make payments in an amount equal to all remaining Excess Cash on such Payment Date into the Anchor Tenant Rollover Reserve Account in accordance with Section 3.5.3 hereof and/or the Cash Collateral Subaccount in accordance with Section 3.10 hereof, as applicable.

3.12.2 The failure of Borrower to make all of the payments required under clauses (i) through (vi) of Section 3.12.1 in full on each Payment Date shall constitute an Event of Default under this Agreement; provided, however, if adequate funds are available in the Cash Management Account for such payments, the failure by the Cash Management Bank to allocate such funds into the appropriate Subaccounts shall not constitute an Event of Default.

3.12.3 Notwithstanding anything to the contrary contained in this Section 3.12, after the occurrence and during the continuance of a Default or an Event of Default, Lender may apply all Rents deposited into the Cash Management Account and other proceeds of repayment in such order and in such manner as Lender shall elect in its sole and absolute discretion.

3.12.4 Additional Provisions Regarding Cash Management. At such time as the Debt has been paid in full, Borrower and Lender hereby agree and acknowledge that any funds of Borrower possessed by or for the benefit of Lender, Servicer or the Cash Management Bank (including any Reserve Funds) shall be disbursed within three (3) Business Days after the Debt has been paid in full to Borrower.

3.13 EXISTING TI/LC OBLIGATIONS RESERVES. On the date hereof, Borrower shall deposit with Lender the sum of $324,575.00, representing the tenant improvement costs and leasing commissions which are payable by Borrower as of the date hereof pursuant to the Properties and tenants set forth on Schedule 7 attached hereto. Lender shall transfer such amounts into a Subaccount (the “Existing TI/LC Subaccount”). Funds held in the Existing TI/LC Subaccount shall be disbursed in accordance with the terms and conditions of Section 3.5.1 hereof, in the amounts allocated to each tenant as set forth on Schedule 7 attached hereto. Borrower shall complete the tenant improvement work set forth on Schedule 7 within six (6) months after the date hereof.

3.14 WEST BROAD SSDS RESERVE. On the date hereof, Borrower shall deposit with Lender the sum of $125,000.00 to complete the West Broad SSDS Installation Work and Lender shall cause such amount to be transferred to a Subaccount (the “West Broad SSDS Subaccount”). Borrower shall perform and complete the West Broad SSDS Installation Work within six (6) months of the date hereof. Provided no Event of Default shall have occurred and is continuing, Lender shall disburse funds held in the West Broad SSDS Subaccount to Borrower, within thirty (30) days after the delivery by Borrower to Lender of a request therefor (but not more often than once per month), in increments of at least $25,000 (other than the final disbursement, which may be less), accompanied by the following items (which items shall be in form and substance satisfactory to Lender): (i) an Officer’s Certificate (A) certifying that the West Broad SSDS Installation Work or any portion thereof which are the subject of the requested disbursement have been completed in a good and workmanlike manner and in accordance with all applicable Legal Requirements, (B) identifying each Person that supplied materials or labor in connection with such West Broad SSDS Installation Work or any portion thereof, and (C) stating that each such Person has been paid in full with respect to the portion of the West Broad SSDS Installation Work which is the subject of the requested disbursement; (ii) copies of appropriate Lien waivers or other evidence as Lender shall reasonably request that the work to be reimbursed by the requested disbursement has been completed in accordance with all General Construction Work Requirements and all applicable Legal Requirements and has been fully paid for; (iii) at Lender’s option, a title search for the Property indicating that it is free from all Liens not previously approved by Lender; (iv) a copy of each License required to be obtained with respect to the portion of the West Broad SSDS Installation Work which is the subject of the requested disbursement; and (v) such other evidence as Lender shall reasonably request that the West Broad SSDS Installation Work which is the subject of the requested disbursement has been completed and fully paid for. Provided no Event of Default shall have occurred and is continuing, upon Borrower’s completion of all West Broad SSDS Installation Work in accordance with this Section 3.14, Lender shall release any funds remaining in the West Broad SSDS Subaccount, if any, to Borrower. Any such disbursement of more than $10,000 to pay (rather than reimburse, if permitted by Lender in its sole discretion) for any West Broad SSDS Installation Work may, at Lender’s option, be made by joint check payable to Borrower and the payee with respect to such West Broad SSDS Installation Work.

3.15 DISBURSEMENTS UPON PARTIAL RELEASE. Upon a Partial Release in accordance with the terms and conditions of Section 5.34 hereof, provided that no Default or Event of Default has occurred and is continuing, Lender shall disburse to Borrower that portion of the Reserve Funds allocable to the Partial Release Property, as determined by Lender, unless Lender determines, in its sole and absolute discretion, that such Reserve Funds will be needed for the purposes held therefor with respect to the remaining Properties after giving effect to the subject Partial Release.

4. REPRESENTATIONS & WARRANTIES

Borrower represents and warrants to Lender as of the date hereof that, except to the extent (if any) disclosed on Schedule 3 with reference to a specific Section of this Article 4:

4.1 ORGANIZATION; SPECIAL PURPOSE. Each of Borrower and SPE Party has been duly organized and is validly existing and in good standing under the laws of the state of its formation, with requisite power and authority, and all rights, licenses, permits and authorizations, governmental or otherwise, necessary to own its properties and to transact the business in which it is now engaged. Each of Borrower and SPE Party is duly qualified to do business and is in good standing in each jurisdiction where it is required to be so qualified in connection with its properties, business and operations. Each of Borrower and SPE Party is a Special Purpose Bankruptcy Remote Entity; provided, however, Lender hereby acknowledges that each of BSV Colonial Owner LLC and BSV Coral Hills LLC have owned property other than the Property prior to the date hereof.

4.2 PROCEEDINGS; ENFORCEABILITY. Borrower has the power to execute, deliver and perform, and has taken all necessary action to authorize the execution, delivery and performance of, the Loan Documents. The Loan Documents have been duly executed and delivered by Borrower and, if applicable, Guarantor and constitute legal, valid and binding obligations of Borrower and, if applicable, Guarantor, enforceable against Borrower and Guarantor in accordance with their respective terms, subject to applicable bankruptcy, insolvency and similar laws affecting rights of creditors generally, and general principles of equity. The Loan Documents are not subject to, and neither Borrower nor Guarantor has asserted, any right of rescission, set-off, counterclaim or defense, including the defense of usury. No exercise of any of the terms of the Loan Documents, or any right thereunder, will render any Loan Document unenforceable.

4.3 NO CONFLICTS. The execution, delivery and performance of the Loan Documents by Borrower and, if applicable, Guarantor, and the transactions contemplated hereby and thereby will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any Lien (other than pursuant to the Loan Documents) upon any of the property of Borrower or Guarantor pursuant to the terms of, any agreement or instrument or organizational document to which Borrower or Guarantor is a party or by which it or its property is subject, nor will such action result in any violation of the provisions of any statute or any order, rule or regulation of any Governmental Authority having jurisdiction over Borrower, Guarantor or any of its or their properties. Borrower’s rights under the Licenses and the Management Agreement will not be adversely affected by the execution and delivery of the Loan Documents, Borrower’s performance thereunder, the recordation of the Security Instrument, or the exercise of any remedies by Lender. Any consent, approval, authorization, order, registration or qualification of or with any Governmental Authority or any other Person required for the execution, delivery and performance by Borrower and, if applicable, Guarantor of the Loan Documents has been obtained and is in full force and effect.

4.4 LITIGATION. Except as expressly disclosed to Lender in writing, there are no actions, suits or other proceedings at law or in equity by or before any Governmental Authority now pending or threatened against or affecting Borrower, SPE Party, Guarantor, the Manager or the Property, which, if adversely determined, might materially adversely affect the condition (financial or otherwise) or business of Borrower (including the ability of Borrower to carry out its obligations under the Loan Documents), SPE Party, Guarantor, Manager or the condition or ownership of the Property.

4.5 AGREEMENTS. Neither Borrower nor Guarantor is a party to any agreement or instrument or subject to any restriction which might adversely affect Borrower, Guarantor or the Property, or Borrower’s or Guarantor’s business, properties, operations or condition, financial or otherwise. Neither Borrower nor Guarantor is in default in any material respect in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in any Permitted Encumbrance or any other agreement or instrument to which it is a party or by which it or the Property is bound.

4.6 TITLE. Borrower has good and indefeasible title in fee to the real property and good title to the balance of the Property, free and clear of all Liens except the Permitted Encumbrances. All transfer taxes, deed stamps, intangible taxes or other amounts in the nature of transfer taxes required to be paid by any Person under applicable Legal Requirements in connection with the transfer of the Property to Borrower have been paid. All mortgage, recording, stamp, intangible or other similar taxes required to be paid by any Person under applicable Legal Requirements in connection with the execution, delivery, recordation, filing, registration, perfection or enforcement of any of the Loan Documents have been paid. To the best of Borrower’s knowledge, the Permitted Encumbrances do not materially adversely affect the value, operation or use of the Property, or Borrower’s ability to repay the Loan. No Condemnation or other proceeding has been commenced or, to Borrower’s best knowledge, is contemplated with respect to all or part of the Property or for the relocation of roadways providing access to the Property. There are no claims for payment for work, labor or materials affecting the Property which are or may become a Lien prior to, or of equal priority with, the Liens created by the Loan Documents. There are no outstanding options to purchase or rights of first refusal affecting all or any portion of the Property. The survey for the Property delivered to Lender does not fail to reflect any material matter affecting the Property or the title thereto. To the best of Borrower’s knowledge, except as shown on the survey for the Property delivered to Lender, all of the Improvements lie wholly within the boundaries and building restriction lines of the Property, and no improvement on an adjoining property encroaches upon the Property, and no easement or other encumbrance upon the Property encroaches upon any of the Improvements, except those insured against by the Title Insurance Policy. To the best of Borrower’s knowledge, each parcel comprising the Property is a separate tax lot and is not a portion of any other tax lot that is not a part of the Property. There are no pending or proposed special or other assessments for public improvements or otherwise affecting the Property, or any contemplated improvements to the Property that may result in such special or other assessments.

4.7 NO BANKRUPTCY FILING. Neither Borrower, Guarantor or SPE Party is contemplating either the filing of a petition by it under any state or federal bankruptcy or insolvency law or the liquidation of the Property or all or a major portion of its property (a “Bankruptcy Proceeding”), and Borrower has no knowledge of any Person contemplating the filing of any such petition against it, Guarantor, SPE Party or in any way related to the Property. In addition, neither Borrower, Guarantor nor SPE Party nor any principal nor Affiliate of either has been a party to, or the subject of a Bankruptcy Proceeding for the past ten (10) years.

4.8 FULL & ACCURATE DISCLOSURE. No statement of fact made by Borrower or Guarantor in any Loan Documents contains any untrue statement of a material fact or omits to state any material fact necessary to make statements contained therein not misleading. There is no material fact presently known to Borrower that has not been disclosed to Lender which adversely affects, or, as far as Borrower can foresee, might adversely affect, the Property or the business, operations or condition (financial or otherwise) of Borrower or Guarantor. All financial data, including the statements of cash flow and income and operating expense, that have been delivered to Lender in respect of Borrower, Guarantor and the Property (i) are true, complete and correct in all material respects, (ii) accurately represent the financial condition of Borrower, Guarantor and the Property as of the date of such reports, and (iii) to the extent prepared by an independent certified public accounting firm, have been prepared in accordance with GAAP or tax accounting principles, in either case consistently applied, throughout the periods covered, except as disclosed therein. Neither Borrower nor Guarantor has any contingent liabilities, liabilities for taxes, unusual forward or long-term commitments, unrealized or anticipated losses from any unfavorable commitments or any liabilities or obligations which are prohibited pursuant to this Agreement or the other Loan Documents. Since the date of such financial statements, there has been no materially adverse change in the financial condition, operations or business of Borrower, Guarantor or the Property from that set forth in said financial statements.

4.9 TAX FILINGS. To the extent required, each of Borrower and Guarantor has filed (or has obtained effective extensions for filing) all federal, state and local tax returns required to be filed and have paid or made adequate provision for the payment of all federal, state and local taxes, charges and assessments payable by Borrower and Guarantor. Borrower believes that its and Guarantor’s tax returns (if any) properly reflect the income and taxes of Borrower and Guarantor for the periods covered thereby, subject only to reasonable adjustments required by the Internal Revenue Service or other applicable tax authority upon audit.

4.10 ERISA; NO PLAN ASSETS. As of the date hereof and throughout the Term (i) Borrower is not and will not be an “employee benefit plan,” as defined in Section 3(3) of ERISA, (ii) none of the assets of Borrower constitutes or will constitute “plan assets” of one or more such plans within the meaning of 29 C.F.R. Section 2510.3-101, (iii) Borrower is not and will not be a “governmental plan” within the meaning of Section 3(32) of ERISA, and (iv) transactions by or with Borrower are not and will not be subject to state statutes regulating investment of, and fiduciary obligations with respect to, governmental plans. As of the date hereof, neither Borrower, nor any member of a “controlled group of corporations” (within the meaning of Section 414 of the Code) maintains, sponsors or contributes to a “defined benefit plan” (within the meaning of Section 3(35) of ERISA) or a “multiemployer pension plan” (within the meaning of Section 3(37)(A) of ERISA).

4.11 COMPLIANCE. Except as expressly disclosed to Lender in writing, Borrower and the Property and the use thereof comply in all material respects with all applicable Legal Requirements (including with respect to parking and applicable zoning and land use laws, regulations and ordinances). Borrower is not in default or violation of any order, writ, injunction, decree or demand of any Governmental Authority, the violation of which might materially adversely affect the condition (financial or otherwise) or business of Borrower. The Property is used exclusively as retail shopping centers and other appurtenant and related uses. To the best of Borrower’s knowledge, except as expressly disclosed in the zoning report for the Property delivered to Lender, in the event that all or any part of the Improvements are destroyed or damaged, said Improvements can be legally reconstructed to their condition prior to such damage or destruction, and thereafter exist for the same use without violating any zoning or other ordinances applicable thereto and without the necessity of obtaining any variances or special permits. No legal proceedings are pending or, to the knowledge of Borrower, threatened with respect to the zoning of the Property. Except as expressly disclosed to Lender in writing, neither the zoning nor any other right to construct, use or operate the Property is in any way dependent upon or related to any property other than the Property. To the best of Borrower’s knowledge, all certifications, permits, licenses and approvals, including certificates of completion and occupancy permits required for the legal use, occupancy and operation of the Property (collectively, the “Licenses”), have been obtained and are in full force and effect. The use being made of the Property is in conformity with the certificate of occupancy issued for the Property and all other restrictions, covenants and conditions affecting the Property.

4.12 CONTRACTS. There are no service, maintenance or repair contracts affecting the Property that are not terminable on one (1) months’ notice or less without cause and without penalty or premium. All service, maintenance or repair contracts affecting the Property have been entered into an arms-length in the ordinary course of Borrower’s business and provide for the payment of fees in amounts and upon terms comparable to existing market rates. No agreement or instrument to which Borrower is a party or is subject to or to which the Property is subject, provides any Person with the right to obtain, a Lien on the Property superior to the Lien of the Security Instrument.

4.13 FEDERAL RESERVE REGULATIONS; INVESTMENT COMPANY ACT. No part of the proceeds of the Loan will be used for the purpose of purchasing or acquiring any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System or for any other purpose that would be inconsistent with such Regulation U or any other regulation of such Board of Governors, or for any purpose prohibited by Legal Requirements or any Loan Document. Borrower is not (i) an “investment company” or a company “controlled” by an “investment company,” within the meaning of the Investment Company Act of 1940, as amended; (ii) a “holding company” or a “subsidiary company” of a “holding company” or an “affiliate” of either a “holding company” or a “subsidiary company” within the meaning of the Energy Policy Act of 2005, as amended; or (iii) subject to any other federal or state law or regulation which purports to restrict or regulate its ability to borrow money.

4.14 EASEMENTS, UTILITIES & PUBLIC ACCESS. All easements, cross easements, licenses, air rights and rights-of-way or other similar property interests (collectively, “Easements”), if any, necessary for the full utilization of the Improvements for their intended purposes have been obtained, are described in the Title Insurance Policy and are in full force and effect without default thereunder. The Property has rights of access to public ways and is served by water, sewer, sanitary sewer and storm drain facilities adequate to service it for its intended uses. All public utilities necessary or convenient to the full use and enjoyment of the Property are located in the public right-of-way abutting the Property, and all such utilities are connected so as to serve the Property without passing over other property absent a valid easement. All roads necessary for the use of the Property for its current purpose have been completed and dedicated to public use and accepted by all Governmental Authorities.

4.15 PHYSICAL CONDITION. Except as expressly disclosed to Lender in writing, to the best of Borrower’s knowledge, the Property, including all Improvements, parking facilities, systems, Personal Property and landscaping, are in good condition, order and repair in all material respects, and there exists no structural or other material defect or damage to the Property, whether latent or otherwise. Borrower has not received notice from any insurance company or bonding company of any defect or inadequacy in the Property, or any part thereof, which would adversely affect its insurability or cause the imposition of extraordinary premiums or charges thereon or any termination of any policy of insurance or bond. No portion of the Property is located in an area as identified by the Federal Emergency Management Agency as an area having special flood hazards.

4.16 LEASES. Borrower has delivered to Lender a true, correct and complete rent roll for the Property (the “Rent Roll”), which includes all Leases affecting the Property. Except as set forth on the Rent Roll: (i) each Lease is in full force and effect and all conditions precedent to each tenant’s obligations under the related Lease have been satisfied; (ii) the tenants under the Leases have accepted possession of and are in occupancy of all of their respective demised premises, have commenced the payment of rent under the Leases, and there are no offsets, claims or defenses to the enforcement thereof; (iii) all rents due and payable under the Leases have been paid and no portion thereof has been paid for any period more than thirty (30) days in advance; (iv) the rent payable under each Lease is the amount of fixed rent set forth in the Rent Roll, and, to the best of Borrower’s knowledge, except in connection with annual pass through reconciliations, there is no claim or basis for a claim by the tenant thereunder for an adjustment to the rent; (v) no tenant has made any material claim against the landlord under any Lease which remains outstanding, there are no defaults on the part of the landlord under any Lease, and no event has occurred which, with the giving of notice or passage of time, or both, would constitute such a default; (vi) to Borrower’s best knowledge, there is no present material default by the tenant under any Lease; (vii) all security deposits under Leases are as set forth on the Rent Roll and are held consistent with Section 3.9; (viii) Borrower is the sole owner of the entire lessor’s interest in each Lease; (ix) intentionally deleted; (x) to the best of Borrower’s knowledge, no Person has any possessory interest in, or right to occupy, the Property except under the terms of the Lease; and (xi) each Lease is subordinate to the Loan Documents pursuant to its terms. None of the Leases contains any option to purchase or right of first refusal to purchase the Property or any part thereof. Neither the Leases nor the Rents have been assigned or pledged except to Lender, and no other Person has any interest therein except the tenants thereunder. To Borrower’s knowledge, no tenant has made an assignment for the benefit of creditors, or is subject to any federal or state bankruptcy or reorganization arrangement pursuant to federal bankruptcy law or any similar federal or state law, or any proceeding for the dissolution or liquidation of such tenant.

4.17 FRAUDULENT TRANSFER. Borrower has not entered into the Loan or any Loan Document with the actual intent to hinder, delay, or defraud any creditor, and Borrower has received reasonably equivalent value in exchange for its obligations under the Loan Documents. Giving effect to the transactions contemplated by the Loan Documents, the fair saleable value of Borrower’s assets exceeds and will, immediately following the execution and delivery of the Loan Documents, exceed Borrower’s total liabilities, including subordinated, unliquidated, disputed or contingent liabilities, including the maximum amount of its contingent liabilities or its debts as such debts become absolute and matured. Borrower’s assets do not and, immediately following the execution and delivery of the Loan Documents will not, constitute unreasonably small capital to carry out its business as conducted or as proposed to be conducted. Borrower does not intend to, and does not believe that it will, incur debts and liabilities (including contingent liabilities and other commitments) beyond its ability to pay such debts as they mature (taking into account the timing and amounts to be payable on or in respect of obligations of Borrower).

4.18 OWNERSHIP OF BORROWER. The membership interests in Borrower are owned free and clear of all Liens, warrants, options and rights to purchase. Borrower has no obligation to any Person to purchase, repurchase or issue any ownership interest in it. The organizational chart attached hereto as Schedule 4 is complete and accurate.

4.19 MANAGEMENT AGREEMENT. The Management Agreement is in full force and effect. There is no default, breach or violation existing thereunder, and no event has occurred (other than payments due but not yet delinquent) that, with the passage of time or the giving of notice, or both, would constitute a default, breach or violation thereunder, by either party thereto.

4.20 HAZARDOUS SUBSTANCES. Except as expressly disclosed in the environmental reports provided to Lender in connection with the closing of the Loan: (i) the Property is not in violation of any Legal Requirement pertaining to or imposing liability or standards of conduct concerning environmental regulation, contamination or clean-up, including the Comprehensive Environmental Response, Compensation and Liability Act, the Resource Conservation and Recovery Act, the Emergency Planning and Community Right-to-Know Act of 1986, the Hazardous Substances Transportation Act, the Solid Waste Disposal Act, the Clean Water Act, the Clean Air Act, the Toxic Substance Control Act, the Safe Drinking Water Act, the Occupational Safety and Health Act, any Legal Requirements relating to Toxic Mold, any state super-lien and environmental clean-up statutes, any local law requiring related permits and licenses, any common law relating to Toxic Mold or other Hazardous Substances, and all amendments to and regulations in respect of the foregoing laws (collectively, “Environmental Laws”); (ii) the Property is not subject to any private or governmental Lien or judicial or administrative notice or action or inquiry, investigation or claim relating to hazardous, toxic and/or dangerous substances, including Toxic Mold, or any other substances or materials which are included under or regulated by Environmental Laws (collectively, “Hazardous Substances”); (iii) to the best of Borrower’s knowledge, after due inquiry, no Hazardous Substances, other than substances of kinds and in amounts ordinarily and customarily used or stored in similar properties for the purposes of cleaning or other maintenance or operations by tenants in the ordinary course of each such tenant’s business in compliance with all Environmental Laws, are or have been (including the period prior to Borrower’s acquisition of the Property), discharged, generated, treated, disposed of or stored on, incorporated in, or removed or transported from the Property other than in compliance with all Environmental Laws; (iv) to the best of Borrower’s knowledge, after due inquiry, no Hazardous Substances are present in, on or under any nearby real property which could migrate to or otherwise affect the Property; (v) no underground storage tanks exist on the Property and the Property has never been used as a landfill; and (vi) there have been no environmental investigations, studies, audits, reviews or other analyses conducted by or on behalf of Borrower which have not been provided to Lender.

4.21 NAME; PRINCIPAL PLACE OF BUSINESS. Borrower does not use and will not use any trade name and has not done and will not do business under any name other than its actual name set forth herein. The principal place of business of Borrower is its primary address for notices as set forth in Section 6.1, and Borrower has no other place of business.

4.22 OTHER DEBT. There is no indebtedness with respect to the Property or any indebtedness secured by excess cash flow from, or any residual interest therein, relating to the Property, whether secured or unsecured, other than Permitted Encumbrances and Permitted Indebtedness.

4.23 EMBARGOED PERSON. None of the funds or assets of any Guarantor or of Borrower constitute property of, or are beneficially owned directly or, to Borrower’s best knowledge, indirectly, by any Embargoed Person (as hereinafter defined) and (b) no Embargoed Person has any direct interest, and to Borrower’s best knowledge, as of the date hereof indirect interest, of any nature whatsoever in Borrower or any Guarantor, as applicable, with the result that the investment in Borrower or any Guarantor, as applicable (whether directly or indirectly), is prohibited by law or the Loan is in violation of law.

4.24 ANTI-MONEY LAUNDERING. None of the funds of Borrower, SPE Party or any Guarantor, as applicable, that are used to consummate this transaction are derived from or are the proceeds of any unlawful activity, with the result that the investment in Borrower, SPE Party or any Guarantor, as applicable (whether directly or indirectly), is prohibited by law or the Loan is in violation of law or may cause any of the Property to be subject to forfeiture or seizure. Borrower has ascertained the identity of all persons and entities who have provided funds to capitalize Borrower and has conducted verification procedures which are sufficient to establish the identity and source of such funds.

4.25 EQUITY INVESTMENT. As of the date hereof, Borrower, collectively, has invested no less than $13,500,000.00 of cash in all of the Property.

All of the representations and warranties in this Article 4 and elsewhere in the Loan Documents (i) shall survive for so long as any portion of the Debt remains owing to Lender and (ii) shall be deemed to have been relied upon by Lender notwithstanding any investigation heretofore or hereafter made by Lender or on its behalf, provided, however, that the representations, warranties and covenants set forth in Section 4.20 shall survive in perpetuity.

5. COVENANTS

Until the end of the Term, Borrower hereby covenants and agrees with Lender that:

5.1 EXISTENCE. Each of Borrower and SPE Party shall (i) do or cause to be done all things necessary to preserve, renew and keep in full force and effect its existence, rights, and franchises, (ii) continue to engage in the business presently conducted by it, (iii) obtain and maintain all Licenses, and (iv) qualify to do business and remain in good standing under the laws of each jurisdiction, in each case as and to the extent required for the ownership, maintenance, management and operation of the Property.

5.2 TAXES. Borrower shall pay all Taxes and Other Charges as the same become due and payable, and deliver to Lender receipts for payment or other evidence satisfactory to Lender that the Taxes and Other Charges have been so paid no later than thirty (30) days before they would be delinquent if not paid (provided, however, that Borrower need not pay such Taxes or Other Charges, nor furnish such receipts for payment of Taxes and Other Charges paid by Lender pursuant to Section 3.3). Borrower shall not suffer and shall promptly cause to be paid and discharged any Lien against the Property, and shall promptly pay for all utility services provided to the Property. After prior notice to Lender, Borrower, at its own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application of any Taxes or Other Charges, provided that (i) no Default or Event of Default has occurred and is continuing, (ii) such proceeding shall suspend the collection of the Taxes or Other Charges, as applicable, (iii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder, (iv) no part of or interest in the Property will be in danger of being sold, forfeited, terminated, canceled or lost, (v) Borrower shall have furnished such security as may be required in the proceeding, or as may be requested by Lender, to insure the payment of any such Taxes and Other Charges, together with all interest and penalties thereon, which shall not be less than one hundred twenty-five percent (125%) of the Taxes and Other Charges being contested, and (vi) Borrower shall promptly upon final determination thereof pay the amount of such Taxes and Other Charges, together with all costs, interest and penalties. Lender may pay over any such security or part thereof held by Lender to the claimant entitled thereto at any time when, in the judgment of Lender, the entitlement of such claimant is established.

5.3 REPAIRS; MAINTENANCE & COMPLIANCE; ALTERATIONS.

5.3.1 REPAIRS; MAINTENANCE & COMPLIANCE. Borrower shall at all times maintain, preserve and protect all franchises and trade names, and Borrower shall cause the Property to be maintained in a good and safe condition and repair and shall not remove, demolish or alter the Improvements or Personal Property (except for alterations performed in accordance with Section 5.3.2 and normal replacement of Personal Property with Personal Property of equivalent value and functionality). Borrower shall promptly comply with all Legal Requirements and immediately cure properly any violation of a Legal Requirement. Borrower shall notify Lender in writing within five (5) days after Borrower first receives notice of any such non-compliance. Borrower shall promptly repair, replace or rebuild any part of the Property that becomes damaged, worn or dilapidated and shall complete and pay for any Improvements at any time in the process of construction or repair in accordance with all applicable Legal Requirements and any plans, specifications and/or budgets approved by Lender, free and clear of all defects and Liens and, with respect to any such construction work undertaken at the Property from time to time, comply with and satisfy all General Construction Work Requirements.

5.3.2 ALTERATIONS. Borrower may, without Lender’s consent, perform alterations to the Improvements and Personal Property which (i) do not constitute a Material Alteration, (ii) do not adversely affect Borrower’s financial condition or the value or Net Operating Income of the Property and (iii) are in the ordinary course of Borrower’s business. Borrower shall not perform any Material Alteration without Lender’s prior written consent, which consent shall not be unreasonably withheld or delayed; provided, however, that Lender may, in its sole and absolute discretion, withhold consent to any alteration the cost of which is reasonably estimated to exceed $250,000 or which is likely to result in a decrease of Net Operating Income by two and one-half percent (2.5%) or more for a period of thirty (30) days or longer. Lender may, as a condition to giving its consent to a Material Alteration, require that Borrower deliver to Lender security for payment of the cost of such Material Alteration in an amount equal to one hundred twenty-five percent (125%) of the cost of the Material Alteration as estimated by Lender. Upon substantial completion of the Material Alteration, Borrower shall provide evidence satisfactory to Lender that (i) the Material Alteration was constructed in accordance with applicable Legal Requirements and substantially in accordance with plans and specifications approved by Lender (which approval shall not be unreasonably withheld or delayed), (ii) all contractors, subcontractors, materialmen and professionals who provided work, materials or services in connection with the Material Alteration have been paid in full and have delivered unconditional releases of lien and (iii) all material Licenses necessary for the use, operation and occupancy of the Material Alteration (other than those which depend on the performance of tenant improvement work) have been issued. Borrower shall reimburse Lender upon demand for all out-of-pocket costs and expenses (including the reasonable fees of any architect, engineer or other professional engaged by Lender) incurred by Lender in reviewing plans and specifications or in making any determinations necessary to implement the provisions of this Section.

5.4 PERFORMANCE OF OTHER AGREEMENTS. Borrower shall observe and perform each and every term to be observed or performed by it pursuant to the terms of any agreement or instrument affecting or pertaining to the Property, including the Loan Documents and the operating agreement of the sole member of Borrower.

5.5 COOPERATE IN LEGAL PROCEEDINGS. Borrower shall cooperate fully with Lender with respect to, and permit Lender, at its option, to participate in, any proceedings before any Governmental Authority which may in any way affect the rights of Lender under any Loan Document.

5.6 FURTHER ASSURANCES. Borrower shall, at Borrower’s sole cost and expense, (i) execute and deliver (and cause Guarantor to execute and deliver) to Lender such documents, instruments, certificates, assignments and other writings, and do such other acts necessary or desirable, to evidence, preserve and/or protect the collateral at any time securing or intended to secure the Debt and/or for the better and more effective carrying out of the intents and purposes of the Loan Documents, as Lender may reasonably require from time to time; and (ii) upon Lender’s request therefor given from time to time after the occurrence of any Default or Event of Default pay for (a) reports of UCC, federal tax lien, state tax lien, judgment and pending litigation searches with respect to Borrower and SPE Party and (b) searches of title to the Property, each such search to be conducted by search firms reasonably designated by Lender in each of the locations reasonably designated by Lender.

5.7 ENVIRONMENTAL MATTERS.

5.7.1 HAZARDOUS SUBSTANCES. So long as Borrower owns or is in possession of the Property, Borrower shall (i) keep the Property free from Hazardous Substances and in compliance with all Environmental Laws, (ii) promptly notify Lender if Borrower shall become aware that (A) any Hazardous Substance is on or near the Property, (B) the Property is in violation of any Environmental Laws or (C) any condition on or near the Property shall pose a threat to the health, safety or welfare of humans and (iii) remove such Hazardous Substances and/or cure such violations and/or remove such threats, as applicable, as required by law (or as shall be required by Lender in the case of removal which is not required by law, but in response to the opinion of a licensed hydrogeologist, licensed environmental engineer or other qualified environmental consulting firm engaged by Lender (“Lender’s Consultant”)), promptly after Borrower becomes aware of same, at Borrower’s sole expense. Any removal, remediation and/or cure of any violation relating to Toxic Mold shall include, without limitation, all acts required to clean and disinfect any portions of the Property affected by Toxic Mold and to eliminate the source(s) of Toxic Mold in or on the Property, including, providing any necessary moisture control systems at the Property. Nothing herein shall prevent Borrower from recovering such expenses from any other party that may be liable for such removal, remediation or cure.

5.7.2 ENVIRONMENTAL MONITORING.

(a) Borrower shall give prompt written notice to Lender of (i) any proceeding or inquiry by any party (including any Governmental Authority) with respect to the presence of any Hazardous Substance on, under, from or about the Property, (ii) all claims made or threatened by any third party (including any Governmental Authority) against Borrower or the Property or any party occupying the Property relating to any loss or injury resulting from any Hazardous Substance, and (iii) Borrower’s discovery of any occurrence or condition on any real property adjoining or in the vicinity of the Property that could cause the Property to be subject to any investigation or cleanup pursuant to any Environmental Law. Upon becoming aware of the presence of mold or fungus at the Property, Borrower shall (i) undertake an investigation to identify the source(s) of such mold or fungus and shall develop and implement an appropriate remediation plan to eliminate the presence of any Toxic Mold, (ii) perform or cause to be performed all acts reasonably necessary for the remediation of any Toxic Mold (including taking any action necessary to clean and disinfect any portions of the Property affected by Toxic Mold, including providing any necessary moisture control systems at the Property), and (iii) provide evidence reasonably satisfactory to Lender of the foregoing. Borrower shall permit Lender to join and participate in, as a party if it so elects, any legal or administrative proceedings or other actions initiated with respect to the Property in connection with any Environmental Law or Hazardous Substance, and Borrower shall pay all reasonable attorneys’ fees and disbursements incurred by Lender in connection therewith.

(b) Upon Lender’s request, at any time and from time to time, Borrower shall provide an inspection or audit of the Property prepared by a licensed hydrogeologist, licensed environmental engineer or qualified environmental consulting firm approved by Lender assessing the presence or absence of Hazardous Substances on, in or near the Property, and if Lender in its good faith judgment determines that reasonable cause exists for the performance of such environmental inspection or audit, then the cost and expense of such audit or inspection shall be paid by Borrower. Such inspections and audit may include soil borings and ground water monitoring. If Borrower fails to provide any such inspection or audit within thirty (30) days after such request, Lender may order same, and Borrower hereby grants to Lender and its employees and agents access to the Property and a license to undertake such inspection or audit.

(c) If any environmental site assessment report prepared in connection with such inspection or audit recommends that an operations and maintenance plan be implemented for any Hazardous Substance, whether such Hazardous Substance existed prior to the ownership of the Property by Borrower, or presently exists or is reasonably suspected of existing, Borrower shall cause such operations and maintenance plan to be prepared and implemented at its expense upon request of Lender. If any investigation, site monitoring, containment, cleanup, removal, restoration or other work of any kind is reasonably necessary under an applicable Environmental Law (“Remedial Work”), Borrower shall commence all such Remedial Work within thirty (30) days after written demand by Lender and thereafter diligently prosecute to completion all such Remedial Work within such period of time as may be required under applicable law. All Remedial Work shall be performed by licensed contractors approved in advance by Lender and under the supervision of a consulting engineer approved by Lender. All costs of such Remedial Work shall be paid by Borrower, including Lender’s reasonable attorneys’ fees and disbursements incurred in connection with the monitoring or review of such Remedial Work. If Borrower does not timely commence and diligently prosecute to completion the Remedial Work, Lender may (but shall not be obligated to) cause such Remedial Work to be performed at Borrower’s expense. Notwithstanding the foregoing, Borrower shall not be required to commence such Remedial Work within the above specified time period: (x) if prevented from doing so by any Governmental Authority, (y) if commencing such Remedial Work within such time period would result in Borrower or such Remedial Work violating any Environmental Law, or (z) if Borrower, at its expense and after prior written notice to Lender, is contesting by appropriate legal, administrative or other proceedings, conducted in good faith and with due diligence, the need to perform Remedial Work. Borrower shall have the right to contest the need to perform such Remedial Work, provided that, (1) Borrower is permitted by the applicable Environmental Laws to delay performance of the Remedial Work pending such proceedings, (2) neither the Property nor any part thereof or interest therein will be sold, forfeited or lost if Borrower fails to promptly perform the Remedial Work being contested, and if Borrower fails to prevail in contest, Borrower would thereafter have the opportunity to perform such Remedial Work, (3) Lender would not, by virtue of such permitted contest, be exposed to any risk of any civil liability for which Borrower has not furnished additional security as provided in clause (4) below, or to any risk of criminal liability, and neither the Property nor any interest therein would be subject to the imposition of any Lien for which Borrower has not furnished additional security as provided in clause (4) below, as a result of the failure to perform such Remedial Work and (4) Borrower shall have furnished to Lender additional security in respect of the Remedial Work being contested and the loss or damage that may result from Borrower’s failure to prevail in such contest in such amount as may be reasonably requested by Lender but in no event less than one hundred twenty-five percent (125%) of the cost of such Remedial Work as estimated by Lender or Lender’s Consultant and any loss or damage that may result from Borrower’s failure to prevail in such contest.

(d) Borrower shall not install or permit to be installed on the Property any underground storage tank.

(e) Without limiting the foregoing, with respect to the soil and groundwater at the Crestview Property identified on Schedule 5 attached hereto, Borrower shall not do, or allow any tenant or other user of the Property to do, any act that materially increases the dangers to human health or the environment, or poses an unreasonable risk of harm to any Person (whether on or off the Property).

5.8 TITLE TO THE PROPERTY; LIENS. Borrower will warrant and defend the title to the Property, and the validity and priority of all Liens granted or otherwise given to Lender under the Loan Documents, subject only to Permitted Encumbrances, against the claims of all Persons.

5.9 LEASES.

5.9.1 GENERALLY. Upon request, Borrower shall furnish Lender with executed copies of all Leases then in effect. All renewals of Leases and all proposed leases shall provide for rental rates and terms comparable to existing local market rates and shall be arm’s length transactions with bona fide, independent third-party tenants.

5.9.2 MATERIAL LEASES. Borrower shall not enter into a proposed Material Lease or a proposed renewal, extension or modification of an existing Material Lease without the prior written consent of Lender, which consent shall not, so long as no Event of Default is continuing, be unreasonably withheld or delayed. Prior to seeking Lender’s consent to any Material Lease, Borrower shall deliver to Lender a copy of such proposed lease (a “Proposed Material Lease”). Subject to the terms of Section 5.9.5 hereof, if requested by Borrower, Lender will grant conditional approvals of Proposed Material Leases or proposed renewals, extensions or modifications of existing Material Leases at any stage of the leasing process, from initial “term sheet” through negotiated lease drafts, provided that Lender shall retain the right to disapprove any such Proposed Material Lease or proposed renewal, extension or modification of an existing Material Lease, if subsequent to any preliminary approval material changes are made to the terms previously approved by Lender, or additional material terms are added that had not previously been considered and approved by Lender in connection with such Proposed Material Lease or proposed renewal, extension or modification of an existing Material Lease.

5.9.3 MINOR LEASES. Notwithstanding the provisions of Section 5.9.2 above, provided that no Event of Default is continuing, renewals, amendments and modifications of existing Leases and proposed leases, shall not be subject to the prior approval of Lender provided (i) the proposed lease would be a Minor Lease or the existing Lease as amended or modified or the renewal Lease is a Minor Lease, (ii) the proposed lease shall be written substantially in accordance with the standard form of Lease which shall have been approved by Lender or, with respect to national retail tenants only, on such national retail tenant’s standard form, (iii) the Lease as amended or modified or the renewal Lease or series of leases or proposed lease or series of leases: (a) shall provide for net effective rental rates comparable to existing local market rates, (b) shall provide that any free rent or other rental concessions will be applied at the commencement of the term thereof, (c) shall have an initial term (together with all renewal options) of not less than one (1) year (provided that Borrower may, upon thirty (30) days prior written notice to Lender, execute Leases having terms of less than one (1) year (together with all renewal options) for up to but no more than five percent (5%) of the leasable space of any individual Property, provided, however, no such Lease shall be eligible for advances of the Future Advance or disbursements from any Reserve Account), (d) shall provide for automatic self-operative subordination to the Security Instrument and, at Lender’s option, (x) attornment to Lender and (y) the unilateral right by Lender, at the option of Lender, to subordinate the Lien of the Security Instrument to the Lease, and (e) shall not contain any option to purchase, any right of first refusal to purchase, any right to terminate (except in the event of the destruction or condemnation of substantially all of the Property), any requirement for a non-disturbance or recognition agreement, or any other provision which might adversely affect the rights of Lender under the Loan Documents in any material respect. Borrower shall deliver to Lender copies of all Leases which are entered into pursuant to the preceding sentence together with Borrower’s certification that it has satisfied all of the conditions of the preceding sentence within ten (10) days after the execution of the Lease.

5.9.4 ADDITIONAL COVENANTS WITH RESPECT TO LEASES. Borrower (i) shall observe and perform the material obligations imposed upon the lessor under the Leases and shall not do or permit anything to impair the value of the Leases as security for the Debt; (ii) shall promptly send copies to Lender of all notices of default that Borrower shall send or receive under any Lease; (iii) shall enforce, in accordance with commercially reasonable practices for properties similar to the Property, the terms, covenants and conditions in the Leases to be observed or performed by the lessees, short of termination thereof; (iv) shall not collect any of the Rents more than one month in advance (other than security deposits); (v) shall not execute any other assignment of lessor’s interest in the Leases or the Rents (except as contemplated by the Loan Documents); (vi) shall not modify any Lease in a manner inconsistent with the Loan Documents; (vii) shall not convey or transfer or suffer or permit a conveyance or transfer of the Property so as to effect a merger of the estates and rights of, or a termination or diminution of the obligations of, lessees under Leases; (viii) shall not consent to any assignment of or subletting under any Material Lease unless required in accordance with its terms without the prior consent of Lender, which, with respect to a subletting, may not, so long as no Event of Default is continuing, be unreasonably withheld or delayed; and (ix) shall not cancel or terminate any Lease or accept a surrender thereof (except in the exercise of Borrower’s commercially reasonable judgment in connection with a tenant default under a Minor Lease) without the prior consent of Lender, which consent shall not, so long as no Event of Default is continuing, be unreasonably withheld or delayed.

5.9.5 DEEMED APPROVAL. To the extent that the Deemed Approval Requirements are fully satisfied in connection with any Borrower request for Lender consent under this Section 5.9 and Lender thereafter fails to respond, Lender’s approval shall be deemed given with respect to the matter for which approval was requested.

5.10 ESTOPPEL STATEMENT. After request by Lender (but not more than twice in any twelve (12) month period, unless an Event of Default has occurred and is continuing), Borrower shall within ten (10) Business Days furnish Lender with a statement addressed to Lender, its successors and assigns, duly acknowledged and certified, setting forth (i) the unpaid Principal, (ii) the Interest Rate, (iii) the date installments of interest and/or Principal were last paid, (iv) any offsets or defenses to the payment of the Debt, and (v) that the Loan Documents are valid, legal and binding obligations and have not been modified or if modified, giving particulars of such modifications.

5.11 PROPERTY MANAGEMENT.

5.11.1 MANAGEMENT AGREEMENT. Borrower shall (i) cause the Property to be managed pursuant to the Management Agreement; (ii) promptly perform and observe all of the covenants required to be performed and observed by it under the Management Agreement and do all things necessary to preserve and to keep unimpaired its rights thereunder; (iii) promptly notify Lender of any default under the Management Agreement of which it is aware; (iv) promptly deliver to Lender a copy of each financial statement, business plan, capital expenditure plan, and property improvement plan and any other notice, report and estimate received by Borrower under the Management Agreement; and (v) promptly enforce the performance and observance of all of the covenants required to be performed and observed by Manager under the Management Agreement. Without Lender’s prior written consent, Borrower shall not (a) surrender, terminate, cancel, extend or renew the Management Agreement or otherwise replace the Manager or enter into any other management agreement (except pursuant to Section 5.11.2); (b) reduce or consent to the reduction of the term of the Management Agreement; (c) increase or consent to the increase of the amount of any charges under the Management Agreement; (d) otherwise modify, change, supplement, alter or amend in any material respect, or waive or release any of its rights and remedies under, the Management Agreement; or (e) suffer or permit the occurrence and continuance of a default beyond any applicable cure period under the Management Agreement (or any successor management agreement) if such default permits the Manager to terminate the Management Agreement (or such successor management agreement).

5.11.2 TERMINATION OF MANAGER. If (i) an Event of Default exists, (ii) Manager shall become bankrupt, insolvent, or a debtor in an insolvency proceeding or there shall be a change in control of Manager that is not approved by Lender, (iii) a default occurs under the Management Agreement beyond any applicable grace and cure periods, (iv) Manager has engaged in any fraud, willful misconduct, misappropriation of funds or is grossly negligent with regard to the Property or (v) the Debt Service Coverage Ratio is less than 1.05:1 for any two consecutive calendar quarters (calculated on a trailing twelve (12) month’s income and normalized twelve month expenses, adjusted for taxes and insurance), Borrower shall immediately, upon Lender’s written demand, terminate the Management Agreement and replace Manager with a Qualified Manager selected by Borrower and approved by Lender and, if applicable, the Rating Agencies, and execute a replacement Management Agreement on terms and conditions satisfactory to Lender and, if applicable, the Rating Agencies, provided, however, that the management fee payable to such replacement Qualified Manager shall not exceed three percent (3.0%) of Gross Income from Operations. Borrower’s failure to appoint an acceptable manager within thirty (30) days after Lender’s request of Borrower to terminate the Management Agreement shall constitute an immediate Event of Default. Borrower may from time to time appoint a successor manager to manage the Property, which successor manager and Management Agreement shall be approved in writing by Lender in Lender’s discretion and the applicable Rating Agencies.

5.12 SPECIAL PURPOSE BANKRUPTCY REMOTE ENTITY. Each of Borrower and SPE Party shall at all times be a Special Purpose Bankruptcy Remote Entity.

5.13 Intentionally Omitted.

5.14 CHANGE IN BUSINESS OR OPERATION OF PROPERTY. Borrower shall not purchase or own any real property other than the Property and shall not enter into any line of business other than the ownership and operation of the Property, or make any material change in the scope or nature of its business objectives, purposes or operations, or undertake or participate in activities other than the continuance of its present business or otherwise cease to operate the Property as retail shopping centers or terminate such business for any reason whatsoever (other than temporary cessation in connection with renovations to the Property).

5.15 ZONING. Borrower shall not initiate or consent to any zoning reclassification of any portion of the Property or seek any variance under any existing zoning ordinance or use or permit the use of any portion of the Property in any manner that could result in such use becoming a non-conforming use under any zoning ordinance or any other applicable land use law, rule or regulation, without the prior consent of Lender.

5.16 NO JOINT ASSESSMENT. Borrower shall not suffer, permit or initiate the joint assessment of the Property (i) with any other real property constituting a tax lot separate from the Property, and (ii) with any portion of the Property which may be deemed to constitute personal property, or any other procedure whereby the lien of any taxes which may be levied against such personal property shall be assessed or levied or charged to the Property.

5.17 PRINCIPAL PLACE OF BUSINESS. Borrower shall not change its principal place of business or chief executive office without first giving Lender thirty (30) days’ prior notice.

5.18 CHANGE OF NAME, IDENTITY OR STRUCTURE. Borrower shall not change its name, identity (including its trade name or names) or Borrower’s corporate, partnership or other structure without notifying Lender of such change in writing at least thirty (30) days prior to the effective date of such change and, in the case of a change in Borrower’s structure, without first obtaining the prior written consent of Lender. Borrower shall execute and deliver to Lender, prior to or contemporaneously with the effective date of any such change, any financing statement or financing statement change required by Lender to establish or maintain the validity, perfection and priority of the security interest granted herein. At the request of Lender, Borrower shall execute a certificate in form satisfactory to Lender listing the trade names under which Borrower intends to operate the Property, and representing and warranting that Borrower does business under no other trade name with respect to the Property.

5.19 INDEBTEDNESS. Borrower shall not directly or indirectly create, incur or assume any indebtedness other than (i) the Debt and (ii) unsecured trade payables incurred in the ordinary course of business relating to the ownership and operation of the Property, which in the case of such unsecured trade payables (A) are not evidenced by a note, (B) do not exceed, at any time, a maximum aggregate amount of one percent (1%) of the original amount of the Principal and (C) are paid within thirty (30) days of the date due (collectively, “Permitted Indebtedness”).

5.20 LICENSES. Borrower shall maintain in full force and effect, and not cancel, Transfer or permit to lapse, any License required for the operation of the Property.

5.21 COMPLIANCE WITH RESTRICTIVE COVENANTS, ETC. Borrower will not enter into, modify, waive in any material respect or release any Easements, restrictive covenants or other Permitted Encumbrances, or suffer, consent to or permit the foregoing, without Lender’s prior written consent, which consent may be granted or denied in Lender’s sole discretion.

5.22 ERISA.

(a) 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 the Note, this Agreement or the other Loan Documents) to be a non-exempt (under a statutory or administrative class exemption) prohibited transaction under ERISA.

(b) Borrower shall not maintain, sponsor, contribute to or become obligated to contribute to, or suffer or permit any ERISA Affiliate of Borrower to, maintain, sponsor, contribute to or become obligated to contribute to, any Plan or any Welfare Plan or permit the assets of Borrower to become “plan assets,” whether by operation of law or under regulations promulgated under ERISA.

(c) Borrower shall deliver to Lender such certifications or other evidence from time to time throughout the Term, as requested by Lender in its sole discretion, that (A) Borrower is not and does not maintain an “employee benefit plan” as defined in Section 3(3) of 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) the assets of Borrower do not constitute “plan assets” within the meaning of 29 C.F.R. Section 2510.3-101.

5.23 PROHIBITED TRANSFERS. Borrower shall not directly or indirectly make, suffer or permit the occurrence of any Transfer other than a Permitted Transfer.

5.24 LIENS. Without Lender’s prior written consent, Borrower shall not create, incur, assume, permit or suffer to exist any Lien on all or any portion of the Property or any ownership interest in Borrower or SPE Party, except Liens in favor of Lender and Permitted Encumbrances, unless such Lien is bonded or discharged within thirty (30) days after Borrower first receives notice of such Lien.

5.25 DISSOLUTION. Borrower shall not (i) engage in any division, dissolution, liquidation or consolidation or merger with or into any other business entity, (ii) engage in any business activity not related to the ownership and operation of the Property or (iii) transfer, lease or sell, in one transaction or any combination of transactions, all or substantially all of the property or assets of Borrower except to the extent expressly permitted by the Loan Documents.

5.26 EXPENSES. Borrower shall reimburse Lender upon receipt of notice for all reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees and disbursements) incurred by Lender in connection with the Loan, including: (i) the preparation, negotiation, execution and delivery of the Loan Documents and the consummation of the transactions contemplated thereby and all the costs of furnishing all opinions by counsel for Borrower and Guarantor; (ii) enforcement of Borrower’s, Guarantor’s, Manager’s and Lender’s ongoing performance under and compliance with the Loan Documents, including confirming compliance with environmental and insurance requirements; (iii) the negotiation, preparation, execution, delivery and administration of any consents, amendments, waivers or other modifications of or under any Loan Document and any other documents or matters requested by Lender or Borrower; (iv) filing and recording of any Loan Documents; (v) title insurance, surveys, inspections and appraisals required by Lender in connection with the closing of the Loan, and any date-down of, or endorsement to, the Title Insurance Policy required hereunder, and any appraisal ordered by Lender after the occurrence and during the continuance of a Default or an Event of Default; (vi) the creation, perfection or protection of Lender’s Liens in the Property and the Accounts (including fees and expenses for title and lien searches, intangibles taxes, personal property taxes, Security Instrument, recording taxes, due diligence expenses, travel expenses, accounting firm fees, costs of appraisals, environmental reports, surveys and engineering reports); (vii) enforcing or preserving any rights in response to third party claims or the prosecuting or defending of any action or proceeding or other litigation, in each case against, under or affecting Borrower, Guarantor, Manager, the Loan Documents, the Property, or any other security given for the Loan; (viii) fees charged by Rating Agencies in connection with any servicing request occurring after the date hereof and relating to, among other things, any modification or approval requested therefrom; (ix) enforcing any obligations of or collecting any payments due from Borrower, Guarantor or Manager under any Loan Document or with respect to the Property or in connection with any refinancing or restructuring of the Loan in the nature of a “work-out”, or any insolvency or bankruptcy proceedings; (x) for any reasonable set-up fees and any other initial costs relating to or arising under any servicing and/or custodial agreement with respect to the Loan, not to exceed (A) $350.00 per month (or $425.00 per month upon the occurrence and during the continuance of an Event of Default) with respect to servicing fees and expenses, and (B) $1,500.00 upon the closing of the Loan and thereafter $250.00 per annum with respect to on-going custodial fees and expenses; and (xi) the fees and expenses of any special servicer retained in respect of the Loan after the occurrence of an Event of Default. Any costs and expenses due and payable to Lender hereunder which are not paid by Borrower within thirty (30) days after demand may be paid from any amounts in the Cash Management Account, with notice thereof to Borrower. The obligations and liabilities of Borrower under this Section shall survive the Term and the exercise by Lender of any of its rights or remedies under the Loan Documents, including the acquisition of the Property by foreclosure or a conveyance in lieu of foreclosure.

5.27 INDEMNITY. Borrower shall defend, indemnify and hold harmless Lender and each of its Affiliates and their respective successors and assigns, including the directors, officers, partners, members, shareholders, participants, employees, professionals and agents of any of the foregoing (including any Servicer) and each other Person, if any, who Controls Lender, its Affiliates or any of the foregoing (each, an “Indemnified Party”), from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements of any kind or nature whatsoever (including the reasonable fees and disbursements of counsel for an Indemnified Party in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not Lender shall be designated a party thereto, court costs and costs of appeal at all appellate levels, investigation and laboratory fees, consultant fees and litigation expenses), that may be imposed on, incurred by, or asserted against any Indemnified Party (collectively, the “Indemnified Liabilities”) in any manner, relating to or arising out of or by reason of the Property (or any part thereof), the Loan, the Loan Documents or any of the rights and remedies granted to Lender under the Loan Documents, including, without limitation: (i) any breach by Borrower, Guarantor or Manager of its obligations under, or any misrepresentation by Borrower contained in, any Loan Document; (ii) the use or intended use of the proceeds of the Loan; (iii) any information provided by or on behalf of Borrower or Guarantor, or contained in any documentation approved by Borrower or Guarantor; (iv) ownership of the Security Instrument, the Property or any interest therein, or receipt of any Rents; (v) any accident, injury to or death of persons or loss of or damage to property occurring in, on or about the Property or on the adjoining sidewalks, curbs, adjacent property or adjacent parking areas, streets or ways; (vi) any use, nonuse or condition in, on or about the Property or on adjoining sidewalks, curbs, adjacent property or adjacent parking areas, streets or ways; (vii) performance of any labor or services or the furnishing of any materials or other property in respect of the Property; (viii) the presence, disposal, escape, seepage, leakage, spillage, discharge, emission, release, or threatened release of any Hazardous Substance on, from or affecting the Property; (ix) any personal injury (including wrongful death) or property damage (real or personal) arising out of or related to such Hazardous Substance; (x) any lawsuit brought or threatened, settlement reached, or government order relating to such Hazardous Substance; (xi) any violation of the Environmental Laws which is based upon or in any way related to such Hazardous Substance, including the costs and expenses of any Remedial Work; (xii) any failure of Borrower, Guarantor, Manager or the Property to comply with any Legal Requirement; (xiii) any claim by brokers, finders or similar persons claiming to be entitled to a commission in connection with any Lease or other transaction involving the Property or any part thereof, or any liability asserted against Lender with respect thereto; and (xiv) the claims of any lessee of any portion of the Property or any Person acting through or under any lessee or otherwise arising under or as a consequence of any Lease; provided, however, that Borrower shall not have any obligation to any Indemnified Party hereunder to the extent that it is finally judicially determined that such Indemnified Liabilities arise from the gross negligence, illegal acts, fraud or willful misconduct of such Indemnified Party. Any amounts payable to any Indemnified Party by reason of the application of this paragraph shall be payable on demand and shall bear interest at the Default Rate from the date loss or damage is sustained by any Indemnified Party until paid. The obligations and liabilities of Borrower under this Section shall survive the Term, the exercise by Lender of any of its rights or remedies under the Loan Documents, including the acquisition of the Property by foreclosure or a conveyance in lieu of foreclosure and the termination of the Loan Documents.

5.28 EMBARGOED PERSON.

(a) At all times throughout the term of the Loan, including after giving effect to any Transfers permitted pursuant to the Loan Documents, (i) none of the funds or assets of Borrower, SPE Party or any Guarantor, whether or not used to repay the Loan, shall constitute property of, or shall be beneficially owned directly or, to Borrower’s best knowledge, indirectly, by any person, entity or government subject to sanctions or trade restrictions under United States law (“Embargoed Person” or “Embargoed Persons”) that are identified on (A) the “List of Specially Designated Nationals and Blocked Persons” maintained by the Office of Foreign Assets Control (“OFAC”), U.S. Department of the Treasury’s FINCEN list, and/or to Borrower’s best knowledge, as of the date thereof, based upon reasonable inquiry by Borrower, on any other similar list maintained by OFAC or FINCEN pursuant to any authorizing statute including, 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 Order or regulation promulgated thereunder, with the result that the investment in Borrower, SPE Party or any Guarantor, as applicable (whether directly or indirectly), is prohibited by law, or the Loan made by Lender would be in violation of law, or (B) Executive Order 13224 (September 23, 2001) issued by the President of the United States (“Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism”), any related enabling legislation or any other similar Executive Orders, and (ii) no Embargoed Person shall have any direct interest or, to Borrower’s best knowledge, indirect interest, of any nature whatsoever in Borrower, SPE Party or any Guarantor, as applicable, with the result that the investment in Borrower, SPE Party or any Guarantor, as applicable (whether directly or indirectly), is prohibited by law or the Loan is in violation of law.

(b) At all times throughout the term of the Loan, none of the Borrower, SPE Party or any Guarantor, nor any Person controlling, controlled by or under common control with any of Borrower, SPE Party or any Guarantor, nor any Person having a beneficial interest in (except with respect to shareholders of Broad Street Realty, Inc. and unitholders of limited partnership interests in Broad Street Operating Partnership LP who (in each case) are not Affiliates, officers, directors or employees of Broad Street Realty, Inc. and/or Broad Street Operating Partnership LP), or for whom any of the Borrower, SPE Party or any Guarantor is acting as agent or nominee in connection with the investment, is (a) a country, territory, person or entity named on an OFAC or FINCEN list, or is a Person that resides in or has a place of business in a country or territory named on such lists; (b) a Person resident in, or organized or chartered under the laws of a jurisdiction identified as non-cooperative by the Financial Action Task Force (“FATF”); or (c) a Person whose funds originate from or will be routed through, an account maintained at a foreign shell bank or “offshore bank”.

(c) None of the Borrower, SPE Party or any Guarantor, nor any Person controlling, controlled by or under common control with Borrower or any Guarantor is a “senior political figure” or an “immediate family” member or “close associate” (as all such terms are defined below) of a senior foreign political figure within the meaning of the USA PATRIOT Act (i.e., the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, H.R. 3162, Public Law 107-56, as may be amended). For the purposes of this subsection (c), (i) “senior foreign political figure” means a senior official in the executive, legislative, administrative, military or judicial branches of a foreign government (whether elected or not), a senior official of a major foreign political party or a senior executive of a foreign government-owned corporation, and such term also includes any corporation, business or other entity that has been formed by, or for the benefit of, a senior political figure, (ii) “immediate family” of a senior foreign political figure includes the figure’s parents, siblings, spouse, children and in-laws, and (iii) “close associate” of a senior foreign political figure means a person who is widely and publicly known to maintain an unusually close relationship with the senior foreign political figure, and includes a person who is in a position to conduct substantial domestic and international financial transactions on behalf of the senior foreign political figure.

5.29 ANTI-MONEY LAUNDERING. At all times throughout the term of the Loan, including after giving effect to any Transfers permitted pursuant to the Loan Documents, none of the funds of Borrower, SPE Party or any Guarantor, as applicable, that are used to consummate this transaction or to repay the Loan shall be derived from or are the proceeds of any unlawful activity, with the result that the investment in Borrower, SPE Party or any Guarantor, as applicable (whether directly or indirectly), is prohibited by law or the Loan is in violation of law or may cause any of the Property to be subject to forfeiture or seizure. Borrower has ascertained the identity of all persons and entities who have provided funds to capitalize Borrower and has conducted verification procedures which are sufficient to establish the identity and source of such funds.

5.30 ACCESS TO PROPERTY. Borrower shall permit agents, representatives, consultants and employees of Lender to inspect the Property or any part thereof at reasonable hours upon reasonable advance notice.

5.31 MODIFICATIONS AND WAIVERS. Unless otherwise consented to in writing by Lender (in its sole and absolute discretion):

(a) Borrower shall not terminate, amend or modify Borrower’s organizational documents (including any operating agreement, limited partnership agreement, by-laws, certificate of formation, certificate of limited partnership or certificate of incorporation); and

(b) Borrower shall not enter into, amend or terminate any agreement or instrument related to Borrower, the Property, or Borrower’s business, properties, operations or condition, financial or otherwise that either (i) has a term of greater than one (1) year, unless such agreement or instrument permits the termination thereof without cause upon not more than thirty (30) days’ notice and without payment of any termination fee or other penalty or premium, or (ii) unless expressly set forth in an Approved Capital Budget or Approved Operating Budget, with respect to each individual Property, requires payments by Borrower in excess of $75,000.00 in the aggregate during the term thereof.

5.32 CERTAIN ADDITIONAL RIGHTS OF LENDER (VCOC).

(a) Notwithstanding anything to the contrary which may be contained in this Agreement, at all times throughout the Term, upon the request of Lender or any of Lender’s successors, assigns or participants in the Loan, the management of Borrower shall consult with Lender or any of Lender’s successors, assigns or participants on significant business issues relating to the operation of the Property and make itself available quarterly either personally or by telephone at mutually agreeable times for such consultation; provided, however, that such consultation need not result in any change in Borrower’s course of action, subject to Section 8.1. The aforementioned consultation rights are intended to satisfy the requirement of management rights for purposes of the Department of Labor “plan assets” regulation 29 C.F.R., Section 2510.3 101.

(b) The rights described in this Section may be exercised by any Person which owns (i) directly or indirectly, substantially all of the interests in Lender, (ii) a participation interest in the Loan or (iii) directly or indirectly, substantially all of the interests in the holder of any such participation interest (it being intended that any such Person described in clauses (i), (ii) and (iii) of this sentence is intended to be a third party beneficiary of the rights granted under this Section, with the direct right to enforce such rights against Borrower, notwithstanding the provisions of Section 10.19 to the contrary).

5.33 O&M PROGRAM. Borrower covenants and agrees to implement and follow the terms and conditions of the O&M Program for the Property during the term of the Loan, including any extension or renewal hereof. Lender’s requirement that Borrower develop and comply with the O&M Program shall not be deemed to constitute a waiver or modification of any of Borrower’s covenants and agreements with respect to Hazardous Substances or Environmental Laws.

5.34 RIGHT TO PARTIAL RELEASE.

(a) Right to Partial Release. Following the first to occur of (1) the first Secondary Market Transaction of the Loan or (2) the second anniversary of the date hereof, Borrower shall have the right to obtain a partial release (“Partial Release”) of a Partial Release Property from the applicable Security Instrument, Assignment of Leases and Rents and related UCC financing statements upon satisfaction of the conditions to a Partial Release set forth in this Section 5.34. Upon a consummation of a Partial Release, the Partial Release Property shall no longer constitute a portion of the Property. Borrower must provide no less than sixty (60) days prior written notice to Lender requesting a Partial Release, identifying the Partial Release Property and the date upon which it desires to have the Partial Release Property released (the “Partial Release Date”). Prior to Lender’s agreement to a Partial Release, each of the following conditions must be satisfied to Lender’s reasonable satisfaction:

(i) No Event of Default shall have occurred and be continuing at the time Borrower requests a Partial Release or on the Partial Release Date;

(ii) On or before the Partial Release Date, Borrower shall partially prepay the Loan in an amount equal to the Partial Release Price;

(iii) As of the Partial Release Date, and after giving effect to the Partial Release, the Loan-to-Value Ratio of the remaining Property is equal to or less than 75%, as determined by Lender in Lender’s sole and absolute discretion; provided that Borrower may, at its option, prepay the Principal in an amount necessary to achieve the Loan-to-Value Ratio required hereunder, subject to the payment of any applicable Yield Maintenance Premium and Exit Fee which may be required in accordance with the terms and conditions of Section 2.4.3 of this Agreement;

(iv) As of the Partial Release Date, and after giving effect to the Partial Release, the Debt Service Coverage Ratio of the remaining Property is equal to or greater than the greater of (A) 1.25:1 and (B) the Debt Service Coverage Ratio immediately prior to the Partial Release Date, as determined by Lender in Lender’s sole and absolute discretion; provided that Borrower may, at its option, prepay the Principal in an amount necessary to achieve the Debt Service Coverage Ratio required hereunder, subject to the payment of any applicable Yield Maintenance Premium and Exit Fee which may be required in accordance with the terms and conditions of Section 2.4.3 of this Agreement;

(v) As of the Partial Release Date, and after giving effect to the Partial Release, the Debt Yield is equal to or greater than the greater of (A) 9.50% and (B) the Debt Yield immediately prior to the Partial Release Date, as determined by Lender in Lender’s sole and absolute discretion; provided that Borrower may, at its option, prepay the Principal in an amount necessary to achieve the Debt Yield required hereunder, subject to the payment of any applicable Yield Maintenance Premium and Exit Fee which may be required in accordance with the terms and conditions of Section 2.4.3 of this Agreement;

(vi) The Property remaining after the Partial Release continues to be in compliance with all Legal Requirements (including, without limitation, all zoning and subdivision laws, setback requirements, parking ratio requirements and use requirements);

(vii) Borrower has delivered to Lender forms of all documents necessary to release the Partial Release Property from the liens created by the applicable Security Instrument, Assignment of Leases and Rents and related UCC financing statements, each in appropriate form required by the state in which the Partial Release Property is located and otherwise satisfactory to Lender in all respects;

(viii) If required by Lender, Borrower has delivered to Lender written confirmation from the Rating Agencies that the Partial Release will not result in the downgrade, withdrawal or qualification of the then current ratings assigned to any Securities or the proposed rating of any Securities;

(ix) Borrower has delivered a certificate certifying that the requirements set forth in this Section 5.34 have been satisfied;

(x) Borrower has paid all amounts then due and unpaid under the Loan Documents through and including amounts due on the Partial Release Date and in connection with the Partial Release;

(xi) Lender shall have received a copy of a deed conveying all of the Borrower’s right, title and interest in and to the Partial Release Property to an entity other than Borrower and SPE Party and a letter from Borrower countersigned by a title insurance company acknowledging receipt of such deed and agreeing to record such deed in the real estate records of the appropriate recording office in which the Partial Release Property is located; and

(xii) As of the Partial Release Date, and, after giving effect to the Partial Release, Lender shall have received evidence from Borrower indicating that Borrower and SPE Party no longer hold any interest in the owner of the Partial Release Property.

(b) Reimbursement of Lender Expenses. Borrower agrees to pay all of Lender’s reasonable out-of-pocket expenses incurred in connection with reviewing and documenting such Partial Release (including, without limitation, the costs of obtaining confirmations of the Rating Agencies if required by Lender), which amounts must be paid by Borrower whether or not the proposed Partial Release is approved or executed. Upon Borrower’s failure to pay such amounts, and in addition to Lender’s remedies for Borrower’s failure to perform, the unpaid amounts shall be added to principal, shall bear interest at the Default Rate until paid in full and payment of such amounts shall be secured by the Security Instrument and other collateral given to secure the Loan.

(c) Liens of Security Instrument Otherwise Unaffected. No Partial Release granted by Lender shall, in any way, impair or affect the lien or priority of any Security Instrument relating to the portion of the Property not included in the Partial Release or improve the position of any subordinate lienholder with respect thereto, except to the extent that the obligations hereunder shall have been reduced by the actual monetary consideration, if any, received by Lender for such Partial Release. The Security Instruments shall continue as a Lien and security interest on the portion of the Property not included in a Partial Release.

(d) REMIC. Notwithstanding anything to the contrary contained herein or in any other Loan Document, if the Loan is included in a REMIC Trust and, immediately following a Partial Release pursuant to this Section 5.34, the ratio of the unpaid principal balance of the Loan to the value of the remaining Property is greater than 125% (such value to be determined, in Lender’s sole discretion, by any commercially reasonable method permitted to a REMIC Trust, based solely on real property and excluding any personal property and going concern value, if any), the principal balance of the Loan must be paid down by an amount equal to the least of the following amounts: (i) the fair market value of the Partial Release Property at the time of the release, or (ii) an amount such that the loan to value ratio of the Loan (as so determined by Lender) does not increase after the release, unless Lender receives an opinion of counsel that if such amount is not paid, the applicable securitization will not fail to maintain its status as a REMIC Trust as a result of the Partial Release.

5.35 MVB BANK AND EAGLEBANK.

(a) Borrower shall, or shall cause Guarantor to, forward to Lender, within five (5) Business Days after receipt, a true and complete copy of any notice of default given under the MVB Bank Loan Documents or the EagleBank Loan Documents with respect to the MVB Bank Borrower or Michael Jacoby, as the case may be, or any Affiliate thereof.

(b) Borrower shall, or shall cause Guarantor to, deliver to Lender a true and complete copy of the compliance certificate required to be given to MVB Bank under the MVB Bank Loan Documents concurrently with the delivery thereof to MVB Bank.

(c) Neither the MVB Bank Loan Documents nor the collateral description under the EagleBank Loan Documents shall be amended, modified or supplemented without the prior written consent of Lender. If either loan evidenced by the MVB Bank Loan Documents or the EagleBank Loan Documents is refinanced or replaced, the collateral therefor may not include a security interest in Michael Jacoby’s ownership interests in Borrower, Broad Street Realty Inc. or Broad Street Operating Partnership, L.P. or any Affiliate of any of the foregoing entities without the prior written consent of Lender.

(d) Except as expressly permitted as a Permitted Transfer, Michael Jacoby shall not grant any additional security interests to the lender under either the MVB Bank Loan Documents or the EagleBank Loan Documents.

5.36 PROPERTY SECURITY. With respect to the Coral Hills and Crestview Properties, Borrower covenants and agrees to implement and follow the terms and conditions of the Security Contracts relating thereto during the term of the Loan, including any extension or renewal hereof. Lender’s requirement that Borrower implement and comply with the Security Contracts shall not be deemed to constitute a waiver or modification of any of Borrower’s covenants and agreements with respect to maintaining the Property in a good and safe condition pursuant to Section 5.3.1 hereof.

6. NOTICES & REPORTING

6.1 NOTICES. All notices, consents, approvals and requests required or permitted hereunder or under any other Loan Document (a “Notice”) shall be given in writing and shall be effective for all purposes if either hand delivered with receipt acknowledged, or by a nationally recognized overnight delivery service (such as Federal Express), or by certified or registered United States mail, return receipt requested, postage prepaid, or by facsimile and confirmed by facsimile answer back, in each case addressed as follows (or to such other address or Person as a party shall designate from time to time by notice to the other party):

If to Lender:

BIG Real Estate Finance I, LLC

c/o Basis Investment Group, LLC

75 Broad Street, Suite 2110

New York, New York 10004

Attention: Tammy K. Jones

Telecopier: (917) 591-8781

If to Borrower:

c/o Broad Street Realty, Inc.

7250 Woodmont Avenue, Suite 350

Bethesda, Maryland 20814

Attention: Michael Jacoby

with a copy to:

Shulman Rogers

12505 Park Potomac Avenue

Potomac, Maryland 20854

Attention: Alexis Peters, Esq.

Telecopier: (301) 230-2891

A notice shall be deemed to have been given: in the case of hand delivery, at the time of delivery or refusal thereof; in the case of registered or certified mail, when delivered or the first attempted delivery on a Business Day; in the case of overnight delivery, upon the first attempted delivery on a Business Day; or in the case of facsimile, upon the confirmation of such facsimile transmission.

6.2 BORROWER NOTICES AND DELIVERIES. Borrower shall (a) give prompt written notice to Lender of: (i) any litigation, governmental proceedings or claims or investigations pending or threatened against Borrower or SPE Party which might materially adversely affect Borrower’s or SPE Party’s or Guarantor’s condition (financial or otherwise) or business or the Property; (ii) any material adverse change in Borrower’s or SPE Party’s or Guarantor’s condition, financial or otherwise, or of the occurrence of any Default or Event of Default of which Borrower has knowledge; and (b) furnish and provide to Lender: (i) any Securities and Exchange Commission or other public filings, if any, of Borrower, SPE Party, Guarantor, Manager, or any Affiliate of any of the foregoing within two (2) Business Days of such filing and (ii) all instruments, documents, boundary surveys, footing or foundation surveys, certificates, plans and specifications, appraisals, title and other insurance reports and agreements in Borrower’s possession or reasonable control, reasonably requested, from time to time, by Lender. In addition, after request by Lender (but no more frequently than once in any year, unless an Event of Default has occurred and is continuing), Borrower shall (x) furnish to Lender, within ten (10) days of Lender’s request, a certificate addressed to Lender, its successors and assigns reaffirming all representations and warranties of Borrower set forth in the Loan Documents as of the date requested by Lender or, to the extent of any changes to any such representations and warranties, so stating such changes, and (y) request, in writing, estoppel certificates from each tenant at the Property when requested by Lender, and use commercially reasonable efforts to deliver to Lender, within forty-five (45) days of Lender’s request, tenant estoppel certificates addressed to Lender, its successors and assigns from each tenant at the Property in form and substance reasonably satisfactory to Lender.

6.3 FINANCIAL REPORTING.

6.3.1 BOOKKEEPING. Borrower shall keep on a calendar year basis, in accordance with GAAP or tax accounting principles, in either case consistently applied, proper and accurate books, records and accounts reflecting all of the financial affairs of Borrower and all items of income and expense and any services, Personal Property or furnishings provided in connection with the operation of the Property, whether such income or expense is realized by Borrower, Manager or any Affiliate of Borrower. Lender shall have the right from time to time during normal business hours upon at least five (5) days notice to examine such books, records and accounts at the office of Borrower or other Person maintaining them, and to make such copies or extracts thereof as Lender shall desire. After an Event of Default, Borrower shall pay any costs incurred by Lender to examine such books, records and accounts, as Lender shall determine to be necessary or appropriate in the protection of Lender’s interest.

6.3.2 ANNUAL AND QUARTERLY REPORTS. Borrower shall furnish to Lender annually, (i) within forty-five (45) days after each calendar quarter, unaudited financial statements of Borrower, and (ii) within ninety (90) days after each calendar year, a complete copy of Borrower’s unaudited annual financial statements reasonably acceptable to Lender, each in accordance with GAAP or tax accounting principles, in either case consistently applied, and containing balance sheets and statements of profit and loss for Borrower and the Property in such detail as Lender may request. Each such statement (x) shall be in form and substance satisfactory to Lender, (y) shall set forth the financial condition and the income and expenses for the Property for the immediately preceding calendar year, including statements of annual Net Operating Income as well as (1) a list of tenants, if any, occupying more than twenty percent (20%) of the rentable space of the Property, (2) a breakdown showing (a) the year in which each Lease then in effect expires, (b) the percentage of rentable space covered by such Lease, (c) the percentage of base rent with respect to which Leases shall expire in each such year, expressed both on a per year and a cumulative basis and (z) shall be accompanied by an Officer’s Certificate certifying (1) that such statement is true, correct, complete and accurate and presents fairly the financial condition of the Property and has been prepared in accordance with GAAP or tax accounting principles, in either case consistently applied, and (2) whether there exists a Default or Event of Default, and if so, the nature thereof, the period of time it has existed and the action then being taken to remedy it. Notwithstanding the foregoing, within thirty (30) days after Lender’s request, the annual financial statements required under this Section 6.3.2 shall be audited by an independent certified public accountant reasonably acceptable to Lender, unless Broad Street Realty, Inc. has filed, or caused to be filed, with the Securities and Exchange Commission annual audited consolidated 10-K statements and quarterly CPA-reviewed 10-Q statements. Lender hereby acknowledges that, as of the date hereof, BDO USA LLC is an acceptable independent certified public accountant.

6.3.3 MONTHLY REPORTS. Borrower shall furnish to Lender within, ten (10) days after Lender’s request, the following items: (i) monthly and year-to-date operating statements, noting Net Operating Income and other information necessary and sufficient under GAAP or tax accounting principles, in either case consistently applied, to fairly represent the financial position and results of operation of the Property during such calendar month, all in form satisfactory to Lender; and (ii) rent rolls identifying the leased premises, names of all tenants, units leased, monthly rental and all other charges payable under each Lease, date to which paid, term of Lease, date of occupancy, date of expiration, material special provisions, concessions or inducements granted to tenants, and a delinquency report for the Property. Each such statement shall be accompanied by an Officer’s Certificate certifying (1) that such items are true, correct, accurate, and complete and fairly present the financial condition and results of the operations of Borrower and the Property in accordance with GAAP or tax accounting principles, in either case consistently applied (subject to normal year-end adjustments) and (2) whether there exists a Default or Event of Default, and if so, the nature thereof, the period of time it has existed and the action then being taken to remedy it.

6.3.4 OTHER REPORTS. Borrower shall furnish to Lender, within ten (10) Business Days after Lender’s reasonable request, such further detailed information with respect to the operation of the Property and the financial affairs of Borrower, SPE Party or Manager as may be reasonably requested by Lender or any applicable Rating Agency.

6.3.5 ANNUAL BUDGET.

(a) Borrower shall prepare and submit (or shall cause Manager to prepare and submit) to Lender by November 15th of each year during the Term (i) a proposed pro forma operating expense budget for the Property for the succeeding calendar year (the “Annual Operating Budget”) showing, on a month-by-month basis, in reasonable detail, each line item of Borrower’s anticipated operating income and operating expenses (on a cash and accrual basis), including amounts required to establish, maintain and/or increase any monthly payments required hereunder and (ii) promptly after preparation thereof, any revisions to such Annual Operating Budget. The Annual Operating Budget (and any revision thereof) shall be subject to reasonable approval by Lender. Each Annual Operating Budget approved by Lender is referred to herein as the “Approved Operating Budget”. Until such time that any Annual Operating Budget has been approved by Lender, the prior Annual Operating Budget or Approved Operating Budget (as the case may be) shall apply for all purposes hereunder (with such adjustments as reasonably determined by Lender (including increases for any non-discretionary expenses)).

(b) Borrower shall prepare and submit (or shall cause Manager to prepare and submit) to Lender by November 15th of each year during the Term, (i) a proposed pro forma capital expense budget for the Property for the succeeding calendar year showing, on a month-by-month basis, in reasonable detail, each line item of anticipated Capital Expenses (the “Annual Capital Budget”) and (ii) promptly after preparation thereof, any revisions to such Annual Capital Budget. The Annual Capital Budget (and any revision thereof) shall be subject to reasonable approval by Lender. Each Annual Capital Budget approved by Lender is referred to herein as the “Approved Capital Budget”.

6.3.6 BREACH. If Borrower fails to provide to Lender or its designee any of the financial statements, certificates, reports or information (the “Required Records”) required by this Section 6.3 within thirty (30) days after the date upon which such Required Record is due, Lender shall have the option, upon fifteen (15) days’ prior written notice to Borrower, to gain access to Borrower’s books and records and prepare or have prepared at Borrower’s reasonable expense, any Required Records not delivered by Borrower. If a failure to deliver the Required Records in accordance with this Agreement occurs on more than two (2) separate occasions while the Loan is outstanding, it shall be an immediate Event of Default. The collection of the fees set forth above shall be in addition to Lender’s other rights and remedies under the Loan Documents and, until paid, shall be deemed added to the Debt, secured by the Security Instrument and shall bear interest at the Default Rate.

7. INSURANCE; CASUALTY; CONDEMNATION

7.1 INSURANCE.

7.1.1 COVERAGE. Borrower, at its sole cost, for the mutual benefit of Borrower and Lender, shall obtain and maintain during the Term the following policies of insurance for each individual Property:

(a) Property insurance insuring against loss or damage customarily included under so called “all risk” or “special form” policies including fire, lightning, flood, earthquake, windstorm/hail (including Named Storm), vandalism, and malicious mischief, boiler and machinery and coverage for damage or destruction caused by acts of “Terrorism” both foreign and domestic (or such policies shall have no exclusion from coverage with respect thereto) and such other insurable hazards as, under good insurance practices, from time to time are insured against for other property and buildings similar to the premises in nature, use, location, height, and type of construction. Such insurance policy shall also insure for ordinance or law coverage, coverage for loss of value to the undamaged portion of the Improvements, demolition and increased cost of construction (which insurance for demolition and increased cost of construction may contain a sub-limit satisfactory to Lender). Each such insurance policy shall (i) be in an amount equal to one hundred percent (100%) of the then replacement cost of the Improvements without deduction for physical depreciation, (ii) have deductibles no greater than $25,000 per occurrence, except as approved for Named Storm coverage, which shall be subject to a deductible no greater than five percent (5%) of the total insurable value of the Property, (iii) be paid annually in advance and (iv) be written on a replacement cost basis and contain either no coinsurance or, if coinsurance, an agreed amount endorsement, and shall cover, without limitation, all tenant improvements and betterments that Borrower is required to insure on a replacement cost basis. The insurance policies required under this subparagraph shall be endorsed to also provide guaranteed building replacement cost to the Improvements and such tenant improvements in an amount to be subject to the consent of Lender, which consent shall not be unreasonably withheld.

(b) Flood insurance if any part of the Property is located in an area now or hereafter designated by the Federal Emergency Management Agency as a Zone “A” & “V” Special Flood Hazard Area, or such other Flood Zone if Lender so requires in its sole discretion. Such policy shall (i) be in an amount equal to (A) the maximum amount of building and, if applicable, contents coverage available under the National Flood Insurance Act of 1968, the Flood Disaster Protection Act of 1973 or the National Flood Insurance Reform Act of 1994, as each may be amended (collectively, the “Flood Insurance Acts”), plus (B) such additional or excess flood coverage as reasonably required by Lender and (ii) have a maximum permissible deductible of $5,000 per building or otherwise acceptable to Lender in its sole discretion.

(c) Liability insurance, to be written on an occurrence basis with no deductible or self-insured retention, including (i) “Commercial General Liability Insurance” with no exclusion for foreign or domestic terrorism, (ii) “Owned”, “Hired” and “Non Owned Auto Liability” (if applicable); and (iii) umbrella/excess liability coverage for personal injury, bodily injury, death, accident and property damage, such insurance providing in combination with the Commercial General Liability Insurance limits of no less than $15,000,000 per occurrence and in the annual aggregate on per location basis. The policies described in this subsection shall also include coverage for elevators, escalators, independent contractors, “Contractual Liability” (covering, to the maximum extent permitted by law, Borrower’s obligation to indemnify Lender as required under this Agreement and the other Loan Documents), “Products” and “Completed Operations Liability” coverage, if appropriate. Liquor Liability, Automobile Liability and Garage Keepers Liability, or any other liability coverage deemed appropriate given the Property type and exposure, may be required at the discretion of the Lender.

(d) Rental loss and/or business interruption insurance (i) with loss payable to Lender, (ii) in an amount equal to 100% of the projected Gross Revenue and/or Rents for a period of at least twelve (12) months. The period of indemnification shall include the initial period of restoration, the period of time required to rebuild the Property following a casualty, and a six (6) month extended period of indemnity which provides that after the physical loss to the Property has been repaired, the continued loss of income will be insured until such income either returns to the same level it was at prior to the loss, or until the limit for such coverage as required above is exhausted, whichever first occurs, and notwithstanding that the policy may expire prior to the end of such period. In no event shall the period of indemnification, including the extended period of indemnity, be less than eighteen (18) months. The amount of such insurance shall be increased from time to time during the Term as and when the estimated or actual Rents increase.

(e) Comprehensive boiler and machinery/equipment breakdown insurance covering all mechanical and electrical equipment against physical damage, rent loss and improvements loss and covering, without limitation, all boilers or pressure vessels and all tenant improvements and betterments that Borrower is required to insure pursuant to the lease on a replacement cost basis (if applicable).

(f) Worker’s compensation and disability insurance with respect to any employees of Borrower, as required by any Legal Requirement.

(g) During any period of repair or restoration, and if such work is excluded under the “all risk” or “special form” and or Liability insurance policies, builder’s “all-risk” insurance or course of construction insurance in form and substance and with coverages and such limits as shall be required by Lender, on the so called completed value basis in an amount equal to not less than the full insurable value of the Property, insuring against such risks (including collapse of the Improvements to agreed limits) as Lender may request, and construction operations liability and/or Owner’s and Contractor’s Protective Liability (or its equivalent) on terms consistent with the coverage requirements set forth in Section 7.1.1(a) and (c) above, in form and substance acceptable to Lender.

(h) Coverage to compensate for ordinance or law, if at any time the Property is deemed to be legal non-conforming use or structure, covering loss to the undamaged portion of the Improvements (with limits no less than 100% full replacement cost), and the cost of demolition and the increased cost of construction in amounts satisfactory to Lender.

(i) Such other insurance (including environmental insurance and earthquake insurance) as may from time to time be reasonably required by Lender in order to protect its interests.

(j) Notwithstanding anything in subsection (a) and (d) above to the contrary, Borrower shall be required to obtain and maintain coverage in its property insurance Policy and its liability insurance Policies (or by a separate Policy) against loss or damage by terrorist acts, both foreign and domestic, in an amount equal to 100% of the “Full Replacement Cost” of the Property plus the rental loss and/or business interruption coverage required in subsection (d) above; provided that such coverage is available. In the event that such coverage with respect to terrorist acts is not included as part of the “all risk” property policy required by subsection (a) and (d) above, Borrower shall, nevertheless be required to obtain coverage for terrorism (as stand-alone coverage) in an amount equal to 100% of the “Full Replacement Cost” of the Property plus the rental loss and/or business interruption coverage under clause (d) above; provided that such coverage is available. Borrower shall obtain the coverage required under this subsection (j) from a carrier which otherwise satisfies the rating criteria specified in Section 7.1.2 below (a “Qualified Carrier”) or in the event that such coverage is not available from a Qualified Carrier, Borrower shall obtain such coverage from the highest rated insurance company providing such coverage. For so long as the Terrorism Risk Insurance Program Reauthorization Act of 2015 or any subsequent statute, reauthorization or extension thereof (collectively, “TRIPRA”) is in effect and continues to cover both foreign and domestic acts, Lender shall accept terrorism insurance with coverage against acts which are “certified” within the meaning of TRIPRA.

7.1.2 POLICIES. All policies of insurance (the “Policies”) required pursuant to Section 7.1.1 above shall (i) be issued by companies approved by Lender and authorized to do business in the State, with a claims paying ability rating of “A” or better by S&P (and the equivalent by any other Rating Agency), and a rating of “A:VIII” or better in the current Best’s Insurance Reports; (ii) name Lender and its successors and/or assigns as their interest may appear as the mortgagee and loss payee (in the case of property and rental loss and/or business income insurance) and an additional insured (in the case of liability insurance); (iii) contain (in the case of property insurance) a Non-Contributory Standard Mortgagee Clause/Lender’s Loss Payable Endorsement, or their equivalents, naming Lender as the person to which all payments made by such insurance company shall be paid; (iv) contain a waiver of subrogation on both the Property and Liability Policies in favor of Lender; (v) complete copies thereof delivered to Lender; (vi) contain such provisions as Lender deems reasonably necessary or desirable to protect its interest, including (A) endorsements providing that neither Borrower, Lender nor any other party shall be a co-insurer under the Policies, (B) that Lender shall receive at least thirty (30) days’ prior written notice of any cancellation of any of the Policies, provided, however, if cancellation is by reason of non-payment of premiums, then Lender shall receive at least ten (10) days’ prior written notice of same, (C) an agreement whereby the insurer waives any right to claim any premiums and commissions against Lender, provided that the policy need not waive the requirement that the premium be paid in order for a claim to be paid to the insured and (D) providing that Lender is permitted to make payments to effect the continuation of such policy upon notice of cancellation due to non-payment of premiums; (vii) the Non-Contributory Standard Mortgagee Clause/Lender’s Loss Payable Endorsement, or its equivalent, shall provide that with respect to the interest of Lender, such insurance policy shall not be invalidated by and shall insure Lender regardless of (A) any act, failure to act or negligence of or violation of warranties, declarations or conditions contained in such policy by any named insured, (B) the occupancy or use of the premises for purposes more hazardous than permitted by the terms thereof, or (C) any foreclosure or other action or proceeding taken by Lender pursuant to any provision of the Loan Documents; and (viii) be satisfactory in form and substance to Lender and approved by Lender as to amounts, form, risk coverage, deductibles, loss payees and insureds. Borrower shall pay the premiums for such Policies (the “Insurance Premiums”) as the same become due and payable and furnish to Lender evidence of the renewal of each of the Policies together with (unless such Insurance Premiums have been paid by Lender pursuant to Section 3.3 hereof) receipts for or other evidence of the payment of the Insurance Premiums reasonably satisfactory to Lender. If Borrower does not furnish such evidence and receipts at least thirty (30) days prior to the expiration of any expiring Policy, then Lender may, but shall not be obligated to, procure such insurance and pay the Insurance Premiums therefor, and Borrower shall reimburse Lender for the cost of such Insurance Premiums promptly on demand, with interest accruing at the Default Rate. Borrower shall deliver to Lender a complete copy of each Policy within thirty (30) days after its effective date, or if such Policy has not yet been issued, insurance binders, to be followed by complete copies of such Policies upon issuance thereof. Within thirty (30) days after request by Lender, Borrower shall obtain such increases in the amounts of coverage required hereunder as may be reasonably requested by Lender, taking into consideration changes in the value of money over time, changes in liability laws, changes in prudent customs and practices, and the like.

7.1.3 BLANKET COVERAGE. Borrower may provide any required insurance under a blanket policy or policies covering the Property and Improvements and other property and assets not part of the Property, provided that Lender is provided a full schedule of locations and values for all properties on such blanket policy and such blanket policy: (a) otherwise complies with the requirements set forth in Sections 7.1.1 and 7.1.2; (b) except in the case of Liability Insurance, specifies how much coverage and which sub limits apply exclusively to the Improvements and that any allocated coverage shall equal or exceed the coverage amounts specified in the above Section 7.1.1; (c) must properly identify and fully protect the Property as if a separate policy were issued for 100% of the replacement cost, with sub limits as permitted herein, at the time of loss.

7.1.4 NO SEPARATE INSURANCE. Borrower shall not carry separate insurance, concurrent in kind or form or contributing in the event of loss, with any of the Policies. Borrower may, however, carry insurance for the Improvements, in addition to the Policies, but only if such additional insurance: (a) does not violate or entitle the carrier to assert any defense or disclaim any primary coverage under any of the Policies; (b) mutually benefits Borrower and Lender, as their interests may appear; and (c) otherwise complies with the terms of this Agreement.

7.1.5 TRANSFERS. In the event of foreclosure of the Security Instrument or other transfer of title to the Property and Improvements in extinguishment in whole or in part of the Debt, and regardless of whether Lender shall have sought a deficiency judgment with respect thereto, all right, title and interest of Borrower in and to the Policies that are not blanket policies then in force concerning the Property and Improvements and all proceeds payable thereunder shall thereupon vest in the purchaser at such foreclosure or Lender or its designee in the event of such other transfer of title.

7.2 CASUALTY.

7.2.1 NOTICE; RESTORATION. If the Property is damaged or destroyed, in whole or in part, by fire or other casualty (a “Casualty”), Borrower shall give prompt notice thereof to Lender. Following the occurrence of a Casualty, Borrower, regardless of whether insurance proceeds are available, shall promptly proceed to restore, repair, replace or rebuild the Property in accordance with Legal Requirements to be of at least equal value and of substantially the same character as prior to such damage or destruction.

7.2.2 SETTLEMENT OF PROCEEDS. If a Casualty covered by any of the Policies (an “Insured Casualty”) occurs where the loss does not exceed $250,000, provided no Default or Event of Default has occurred and is continuing, Borrower may settle and adjust any claim without the prior consent of Lender; provided such adjustment is carried out in a competent and timely manner, and Borrower is hereby authorized to collect and receive the insurance proceeds (the “Proceeds”). In the event of an Insured Casualty where the loss equals or exceeds $250,000 (a “Significant Casualty”), Lender may, in its sole discretion, settle and adjust any claim without the consent of Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Proceeds shall be due and payable solely to Lender and held by Lender in the Casualty/Condemnation Subaccount and disbursed in accordance herewith. If Borrower or any party other than Lender is a payee on any check representing Proceeds with respect to a Significant Casualty, Borrower shall immediately endorse, and cause all such third parties to endorse, such check payable to the order of Lender. Borrower hereby irrevocably appoints Lender as its attorney-in-fact, coupled with an interest, to endorse such check payable to the order of Lender. The expenses incurred by Lender in the settlement, adjustment and collection of the Proceeds shall become part of the Debt and shall be reimbursed by Borrower to Lender upon demand. Notwithstanding anything to the contrary contained herein, if in connection with a Casualty any insurance carrier makes a payment under a property insurance Policy that Borrower proposes be treated as business or rental interruption insurance, then, notwithstanding any designation (or lack of designation) by the insurance carrier as to the purpose of such payment, as between Lender and Borrower, such payment shall not be treated as business or rental interruption insurance proceeds unless Borrower has demonstrated to Lender’s satisfaction that the remaining net Proceeds that will be received from the property insurance carriers are sufficient to pay 100% of the cost of fully restoring the Improvements or, if such net Proceeds are to be applied to repay the Debt in accordance with the terms hereof, that such remaining net Proceeds will be sufficient to pay the Debt in full.

7.3 CONDEMNATION.

7.3.1 NOTICE; RESTORATION. Borrower shall promptly give Lender notice of the actual or threatened commencement of any condemnation or eminent domain proceeding affecting the Property (a “Condemnation”) and shall deliver to Lender copies of any and all papers served in connection with such Condemnation. Following the occurrence of a Condemnation, Borrower, regardless of whether an Award is available, shall promptly proceed to restore, repair, replace or rebuild the Property in accordance with Legal Requirements to the extent practicable to be of at least equal value and of substantially the same character (and to have the same utility) as prior to such Condemnation.

7.3.2 COLLECTION OF AWARD. Lender is hereby irrevocably appointed as Borrower’s attorney-in-fact, coupled with an interest, with exclusive power to collect, receive and retain any award or payment in respect of a Condemnation (an “Award”) and to make any compromise, adjustment or settlement in connection with such Condemnation. Notwithstanding any Condemnation (or any transfer made in lieu of or in anticipation of such Condemnation), Borrower shall continue to pay the Debt at the time and in the manner provided for in the Loan Documents, and the Debt shall not be reduced unless and until any Award shall have been actually received and applied by Lender to expenses of collecting the Award and to discharge of the Debt. Lender shall not be limited to the interest paid on the Award by the condemning authority but shall be entitled to receive out of the Award interest at the rate or rates provided in the Note. If the Property is sold, through foreclosure or otherwise, prior to the receipt by Lender of such Award, Lender shall have the right, whether or not a deficiency judgment on the Note shall be recoverable or shall have been sought, recovered or denied, to receive all or a portion of the Award sufficient to pay the Debt. Borrower shall cause any Award that is payable to Borrower to be paid directly to Lender. Lender shall hold such Award in the Casualty/Condemnation Subaccount and disburse such Award in accordance with the terms hereof.

7.4 APPLICATION OF PROCEEDS OR AWARD.

7.4.1 APPLICATION TO RESTORATION. If an Insured Casualty or Condemnation occurs where (i) the loss is in an aggregate amount less than fifteen percent (15%) of the unpaid Principal; (ii) in the reasonable judgment of Lender, the Property can be restored within six (6) months, and prior to six (6) months before the Stated Maturity Date and prior to the expiration of the rental or business interruption insurance with respect thereto, to the Property’s pre-existing condition and utility as existed immediately prior to such Insured Casualty or Condemnation and to an economic unit not less valuable and not less useful than the same was immediately prior to the Insured Casualty or Condemnation, and after such restoration will adequately secure the Debt; (iii) less than (x) thirty-five percent (35%), in the case of an Insured Casualty or (y) fifteen percent (15%), in the case of a Condemnation, of the rentable area of the Improvements has been damaged, destroyed or rendered unusable as a result of such Insured Casualty or Condemnation; (iv) Leases demising in the aggregate at least sixty-five percent (65%) of the total rentable space in the Property and in effect as of the date of the occurrence of such Insured Casualty or Condemnation remain in full force and effect during and after the completion of the Restoration (hereinafter defined); and (v) no Default or Event of Default shall have occurred and be then continuing, (vi) the REMIC Test shall be satisfied, and (vii) after completion of the restoration the Debt Yield is at least 6.5% if the Casualty occurs in the Initial Term or the first Extension Term and 6.75% if the Casualty occurs in the second Extension Term, then the Proceeds or the Award, as the case may be (after reimbursement of any expenses incurred by Lender), shall be applied to reimburse Borrower for the cost of restoring, repairing, replacing or rebuilding the Property (the “Restoration”), in the manner set forth herein. Borrower shall commence and diligently prosecute such Restoration. Notwithstanding the foregoing, in no event shall Lender be obligated to apply the Proceeds or Award to reimburse Borrower for the cost of Restoration unless, in addition to satisfaction of the foregoing conditions, both (x) Borrower shall pay (and if required by Lender, Borrower shall deposit with Lender in advance) all costs of such Restoration in excess of the net amount of the Proceeds or the Award made available pursuant to the terms hereof; and (y) Lender shall have received evidence reasonably satisfactory to it that during the period of the Restoration, the Rents will be at least equal to the sum of the operating expenses and Debt Service and other reserve payments required hereunder, as reasonably determined by Lender.

7.4.2 APPLICATION TO DEBT. Except as provided in Section 7.4.1, any Proceeds and/or Award may, at the option of Lender in its discretion, be applied to the payment of (i) accrued but unpaid interest on the Note, (ii) the unpaid Principal and (iii) other charges due under the Note and/or any of the other Loan Documents, or applied to reimburse Borrower for the cost of any Restoration, in the manner set forth in Section 7.4.3. Any such prepayment of the Loan shall be subject to the Exit Fee, but shall otherwise be without any Yield Maintenance Premium, unless an Event of Default has occurred and is continuing at the time the Proceeds are received from the insurance company or the Award is received from the condemning authority, as the case may be, in which event Borrower shall pay to Lender an additional amount equal to the Yield Maintenance Premium, if any, that may be required with respect to the amount of the Proceeds or Award applied to the unpaid Principal on or prior to the Yield Maintenance Date.

7.4.3 PROCEDURE FOR APPLICATION TO RESTORATION. If Borrower is entitled to reimbursement out of the Proceeds or an Award held by Lender, such Proceeds or Award shall be disbursed from time to time from the Casualty/Condemnation Subaccount upon Lender being furnished with (i) evidence satisfactory to Lender of the estimated cost of completion of the Restoration, (ii) a fixed price or guaranteed maximum cost construction contract for Restoration satisfactory to Lender, (iii) prior to the commencement of Restoration, all immediately available funds in addition to the Proceeds or Award that in Lender’s judgment are required to complete the proposed Restoration, (iv) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey, permits, approvals, licenses and such other documents and items as Lender may reasonably require and approve in Lender’s discretion, and (v) all plans and specifications for such Restoration, such plans and specifications to be approved by Lender prior to commencement of any work. Lender may, at Borrower’s expense, retain a consultant to review and approve all requests for disbursements, which approval shall also be a condition precedent to any disbursement. No payment made prior to the final completion of the Restoration shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than the Proceeds or Award shall be disbursed prior to disbursement of such Proceeds or Award; and at all times, the undisbursed balance of such Proceeds or Award remaining in the hands of Lender, together with funds deposited for that purpose or irrevocably committed to the satisfaction of Lender by or on behalf of Borrower for that purpose, shall be at least sufficient in the reasonable judgment of Lender to pay for the cost of completion of the Restoration, free and clear of all Liens or claims for Lien. Provided no Default or Event of Default then exists, any surplus that remains out of the Proceeds held by Lender after payment of such costs of Restoration shall be paid to Borrower. Any surplus that remains out of the Award received by Lender after payment of such costs of Restoration shall, in the discretion of Lender, be retained by Lender and applied to payment of the Debt or returned to Borrower.

8. DEFAULTS

8.1 EVENTS OF DEFAULT. An “Event of Default” shall exist with respect to the Loan if any of the following shall occur:

(a) any portion of the Debt is not paid within five (5) days after the date when due, or Borrower shall fail to pay within five (5) days after the date when due any payment required under Sections 3.3, 3.4, 3.5, 3.6, 3.7, 3.8 or 3.9 hereof (unless during any Cash Management Period, sufficient funds are available in the relevant Subaccount on the applicable date) or Borrower shall fail to pay the Debt when due on the Maturity Date;

(b) any of the Taxes or Other Charges are not paid when due (unless Lender is paying such Taxes or Other Charges pursuant to Section 3.3), subject to Borrower’s right to contest Taxes or Other Charges in accordance with Section 5.2;

(d) a Transfer other than a Permitted Transfer occurs;

(e) any representation or warranty made by Borrower or any Guarantor or in any Loan Document, or in any report, certificate, financial statement or other instrument, agreement or document furnished by Borrower or any Guarantor in connection with any Loan Document, shall be false or misleading in any material respect as of the date the representation or warranty was made;

(f) Borrower, SPE Party or any Guarantor shall make an assignment for the benefit of creditors, or shall generally not be paying its debts as they become due;

(g) a receiver, liquidator or trustee shall be appointed for Borrower, SPE Party or any Guarantor; or Borrower, SPE Party or any Guarantor shall be adjudicated a bankrupt or insolvent; or any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower, SPE Party or any Guarantor, as the case may be; or any proceeding for the dissolution or liquidation of Borrower, SPE Party or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by Borrower, SPE Party or any Guarantor, as the case may be, only upon the same not being discharged, stayed or dismissed within 60 days;

(h) Borrower breaches any covenant contained in Sections 5.12, 5.14, 5.19, 5.22 or 5.25;

(i) Borrower breaches any covenant contained in Section 5.11.1(a) – (e), and such breach continues for more than ten (10) days after notice thereof;

(j) except as expressly permitted hereunder, the actual or threatened alteration, improvement, demolition or removal of all or any of portion of the Improvements without the prior written consent of Lender;

(k) a default (beyond applicable notice and cure periods) under any agreement creating a Lien or encumbrance on the Property (including any reciprocal easement agreement or other covenants, restrictions, easements, declarations or agreements of record relating to the construction, operation or use of the Property);

(l) the forfeiture of the Property, or any portion thereof, because of the conduct or purported conduct of criminal activity by Borrower or Guarantor or any of their respective agents or representatives in connection therewith;

(m) there shall have been rendered against Borrower a final judgment(s) for the payment of money in excess of $250,000 in the aggregate, and such judgment(s) shall have continued unsatisfied for a period of forty-five (45) days after the entry of such judgment(s);

(n) an Event of Default as defined or described elsewhere in this Agreement or in any other Loan Document occurs;

(o) a default occurs under any term, covenant or provision set forth herein or in any other Loan Document which specifically contains a notice requirement or grace period and such notice has been given and such grace period has expired;

(p) if any Guarantor that is a natural person dies or becomes incapacitated, unless one or more Persons who (x) individually or together with any other Guarantor, satisfies Lender’s net worth and liquidity requirements and (y) is otherwise acceptable to Lender, executes and delivers to Lender within ninety (90) days a replacement Guaranty in the same form as the Guaranty executed as of the date hereof;

(q) if any of the assumptions contained in the non-consolidation opinion delivered to Lender in connection with the Loan, or any other non-consolidation opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or

(r) a default shall be continuing under any of the other terms, covenants or conditions of this Agreement or any other Loan Document not otherwise specified in this Section, for ten (10) days after notice to Borrower (and Guarantors, if applicable) from Lender, in the case of any default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other default; provided, however, that if such non-monetary default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period, and Borrower (or Guarantor, if applicable) shall have commenced to cure such default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for an additional period of time as is reasonably necessary for Borrower (or Guarantor, if applicable) in the exercise of due diligence to cure such default, such additional period not to exceed sixty (60) days.

8.2 REMEDIES.

8.2.1 ACCELERATION. Upon the occurrence of an Event of Default (other than an Event of Default described in Sections 8.1 (f) and (g)) and at any time and from time to time thereafter, in addition to any other rights or remedies available to it pursuant to the Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to the Property; including declaring the Debt to be immediately due and payable (including unpaid interest, Default Rate interest, Late Payment Charges, Yield Maintenance Premium (if the Maturity Date is accelerated to a date on or prior to the Yield Maintenance Date), the Exit Fee and any other amounts owing by Borrower), without notice or demand; and upon any Event of Default described in Sections 8.1(f) or (g), the Debt (including unpaid interest, Default Rate interest, Late Payment Charges, Yield Maintenance Premium (if applicable), Exit Fee and any other amounts owing by Borrower) shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained in any Loan Document to the contrary notwithstanding.

8.2.2 REMEDIES CUMULATIVE. Upon the occurrence of an Event of Default, all or any one or more of the rights, powers, privileges and other remedies available to Lender against Borrower under the Loan Documents or at law or in equity may be exercised by Lender at any time and from time to time, whether or not all or any of the Debt shall be declared, or be automatically, due and payable, and whether or not Lender shall have commenced any foreclosure proceeding or other action for the enforcement of its rights and remedies under any of the Loan Documents. Any such actions taken by Lender shall be cumulative and concurrent and may be pursued independently, singly, successively, together or otherwise, at such time and in such order as Lender may determine in its discretion, to the fullest extent permitted by law, without impairing or otherwise affecting the other rights and remedies of Lender permitted by law, equity or contract or as set forth in the Loan Documents. Without limiting the generality of the foregoing, Borrower agrees that if an Event of Default is continuing, (i) to the extent permitted by applicable law, Lender is not subject to any “one action” or “election of remedies” law or rule, and (ii) all Liens and other rights, remedies or privileges provided to Lender shall remain in full force and effect until Lender has exhausted all of its remedies against the Property, the Security Instrument has been foreclosed, the Property has been sold and/or otherwise realized upon in satisfaction of the Debt or the Debt has been paid in full. To the extent permitted by applicable law, nothing contained in any Loan Document shall be construed as requiring Lender to resort to any portion of the Property for the satisfaction of any of the Debt in preference or priority to any other portion, and Lender may seek satisfaction out of the entire Property or any part thereof, in its discretion.

8.2.3 SEVERANCE. Lender shall have the right from time to time to sever the Note and the other Loan Documents into one or more separate notes, mortgages and other security documents (and, in connection therewith, to bifurcate or otherwise modify the nature of the collateral that secures such notes) in such denominations and priorities of payment and liens as Lender shall determine in its discretion for purposes of evidencing and enforcing its rights and remedies. Borrower shall execute and deliver to Lender from time to time, promptly after the request of Lender, a severance agreement and such other documents as Lender shall request in order to effect the severance described in the preceding sentence, all in form and substance reasonably satisfactory to Lender. Borrower hereby absolutely and irrevocably appoints Lender as its true and lawful attorney, coupled with an interest, in its name and stead to make and execute all documents necessary or desirable to effect such severance, Borrower ratifying all that such attorney shall do by virtue thereof.

8.2.4 DELAY. No delay or omission to exercise any remedy, right or power accruing upon an Event of Default, or the granting of any indulgence or compromise by Lender shall impair any such remedy, right or power hereunder or be construed as a waiver thereof, but any such remedy, right or power may be exercised from time to time and as often as may be deemed expedient. A waiver of one Default or Event of Default shall not be construed to be a waiver of any subsequent Default or Event of Default or to impair any remedy, right or power consequent thereon. Notwithstanding any other provision of this Agreement, Lender reserves the right to seek a deficiency judgment or preserve a deficiency claim in connection with the foreclosure of the Security Instrument to the extent necessary to foreclose on all or any portion of the Property, the Rents, the Accounts or any other collateral.

8.2.5 LENDER’S RIGHT TO PERFORM. If Borrower fails to perform any covenant or obligation contained herein and such failure shall continue for a period of five (5) Business Days after Borrower’s receipt of written notice thereof from Lender, without in any way limiting Lender’s right to exercise any of its rights, powers or remedies as provided hereunder, or under any of the other Loan Documents, Lender may, but shall have no obligation to, perform, or cause performance of, such covenant or obligation, and all costs, expenses, liabilities, penalties and fines of Lender incurred or paid in connection therewith shall be payable by Borrower to Lender upon demand and if not paid shall be added to the Debt (and to the extent permitted under applicable laws, secured by the Security Instrument and other Loan Documents) and shall bear interest thereafter at the Default Rate. Notwithstanding the foregoing, Lender shall have no obligation to send notice to Borrower of any such failure.

9. SPECIAL PROVISIONS

9.1 SALE OF NOTE; SECONDARY MARKET TRANSACTION, SYNDICATION.

9.1.1 COOPERATION. (a) Borrower shall, at the request of Lender, in connection with one or more sales or assignments of the Note or participations therein (including, without limitation, any Syndication (as hereinafter defined)) or securitizations of rated single or multi-class securities (the “Securities”) secured by or evidencing ownership interests in the Note, the Loan Agreement, the Security Instrument and the other Loan Documents (each such sale, assignment, Syndication, participation and/or securitization, a “Secondary Market Transaction”): (a) (i) provide such financial and other information with respect to the Property, Borrower, Guarantor and its Affiliates, Manager and any tenants of the Property, (ii) provide business plans and budgets relating to the Property and (iii) perform or permit or cause to be performed or permitted such site inspection, appraisals, surveys, market studies, environmental reviews and reports, engineering reports and other due diligence investigations of the Property, as may be reasonably requested from time to time by Lender or the Rating Agencies or as may be necessary or appropriate in connection with a Secondary Market Transaction or Exchange Act requirements (the items provided to Lender pursuant to this paragraph (a) being called the “Provided Information”), (b) cause counsel to render opinions as to non-consolidation and any other opinion customary in securitization transactions with respect to the Property, Borrower, Guarantor and its Affiliates, which counsel and opinions shall be reasonably satisfactory to Lender and the Rating Agencies; (c) make such representations and warranties as of the closing date of any Secondary Market Transaction with respect to the Property, Borrower, Guarantor and the Loan Documents as are customarily provided in such transactions and as may be reasonably requested by Lender or the Rating Agencies and consistent with the facts covered by such representations and warranties as they exist on the date thereof, including the representations and warranties made in the Loan Documents; (d) provide current certificates of good standing and qualification with respect to Borrower and SPE Party from appropriate Governmental Authorities; and (e) execute such amendments to the Loan Documents and Borrower’s organizational documents, as may be requested by Lender or the Rating Agencies or otherwise to effect a Secondary Market Transaction, provided that no such amendment shall result in a material economic change in the transaction.

(a) Borrower acknowledges that Lender may syndicate a portion of the Loan to one or more lenders (the “Syndication”) and in connection therewith, Borrower will take all reasonable actions as Lender may reasonably request to assist Lender in its Syndication effort. Without limiting the generality of the foregoing and of Section 9.1.1(a), Borrower shall, at the request of Lender (i) facilitate the review of the Loan and the Property by any prospective lender; (ii) assist Lender and otherwise cooperate with Lender in the preparation of information offering materials (which assistance may include reviewing and commenting on drafts of such information materials and drafting portions thereof); (iii) deliver updated information on Borrower and the Property; (iv) make representatives of Borrower available at reasonable times and upon reasonable notice to meet with prospective lenders at tours of the Property and bank meetings; (v) facilitate direct contact between the senior management and advisors of Borrower and any prospective lender; and (vi) provide Lender with all information reasonably deemed necessary by it to complete the Syndication successfully. Borrower agrees to take such further action, in connection with documents and amendments to the Loan Documents, as may reasonably be required to effect such Syndication.

9.1.2 USE OF INFORMATION. Borrower understands that all or any portion of the Provided Information and the Required Records may be included in disclosure documents in connection with a Secondary Market Transaction, including a prospectus or private placement memorandum (each, a “Disclosure Document”) and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers or other parties relating to the Secondary Market Transaction. If the Disclosure Document is required to be revised, Borrower shall cooperate with Lender in updating the Provided Information or Required Records for inclusion or summary in the Disclosure Document or for other use reasonably required in connection with a Secondary Market Transaction by providing all current information pertaining to Borrower, Manager and the Property necessary to keep the Disclosure Document accurate and complete in all material respects with respect to such matters.

9.1.3 BORROWER OBLIGATIONS REGARDING DISCLOSURE DOCUMENTS. In connection with a Disclosure Document, Borrower shall: (a) if requested by Lender, certify in writing that Borrower has carefully examined those portions of such Disclosure Document, pertaining to Borrower, Guarantor, the Property, Manager and the Loan, and that such portions do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading; and (b) indemnify (in a separate instrument of indemnity, if so requested by Lender) (i) any underwriter, syndicate member or placement agent (collectively, the “Underwriters”) retained by Lender or its issuing company affiliate (the “Issuer”) in connection with a Secondary Market Transaction, (ii) Lender and (iii) the Issuer that is named in the Disclosure Document or registration statement relating to a Secondary Market Transaction (the “Registration Statement”), and each of the Issuer’s directors, each of its officers who have signed the Registration Statement and each person or entity who controls the Issuer or the Lender within the meaning of Section 15 of the Securities Act or Section 30 of the Exchange Act (collectively within (iii), the “Lender Group”), and each of its directors and each person who controls each of the Underwriters, within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any losses, claims, damages or liabilities (the “Liabilities”) to which Lender, the Lender Group or the Underwriter Group may become subject (including reimbursing all of them for any legal or other expenses actually incurred in connection with investigating or defending the Liabilities) insofar as the Liabilities arise out of or are based upon any untrue statement of any material fact contained in any of the Provided Information or in any of the applicable portions of such sections of the Disclosure Document applicable to Borrower, Guarantor, Manager, the Property or the Loan (provided Borrower was given the opportunity to review said sections of the Disclosure Document), or arise out of or are based upon the omission to state therein a material fact required to be stated in the applicable portions of such sections or necessary in order to make the statements in the applicable portions of such sections in light of the circumstances under which they were made, not misleading, provided, however, that Borrower shall not be required to indemnify Lender for any Liabilities relating to untrue statements or omissions which Borrower identified to Lender in writing at the time of Borrower’s examination of such Disclosure Document.

9.1.4 RESTRUCTURING OF LOAN. Lender shall have the right, at any time (whether prior to or after any Secondary Market Transaction in respect of all or any portion of the Loan), to modify, split and/or sever the Loan one or more times in order to (a) create (i) one or more new loans (including first and second mortgage loans), (ii) one or more new notes (including senior and junior notes (i.e., A/B and A/B/C structure)), (iii) multiple components of the Note and/or (iv) one or more mezzanine loans (including amending Borrower’s organizational structure and the organizational documents of Borrower and its shareholders, partners, members and non-member managers to provide for one or more mezzanine borrowers), (b) reduce the number of loans, notes and/or components, (c) revise the interest rates of the loans, notes and/or components, (d) allocate and reallocate the principal balances of the loans, notes and/or components, (e) increase or decrease the monthly debt service payments for the loans, notes and/or components, (f) eliminate the multiple loan, note and/or component structure (including the elimination of the related allocations of principal and interest payments) or (g) otherwise achieve the optimum execution for a Secondary Market Transaction; provided, however, that in modifying, splitting and/or severing the Loan as provided above (1) Borrower shall not be required to modify the stated maturity of the Note, (2) the aggregate principal amount of all such loans, notes and/or components shall, on the date created, equal the outstanding Principal balance of the Loan immediately prior to the creation of such loans, notes and/or components, (3) the weighted average interest rate of all such loans, notes and/or components shall, on the date created, equal the interest rate applicable to the Loan immediately prior to the creation of such loans, notes and/or components (except that the weighted average interest rate may subsequently increase as a result of prepayments made in accordance with Section 2.9 hereof or following a Casualty, Condemnation or Event of Default), and (4) the scheduled debt service payments on all such loans, notes and/or components shall, on the date created, equal the scheduled debt service payments under the Loan immediately prior to the creation of such loans, notes and/or components. At Lender’s election, each note comprising the Loan may be subject to one or more Secondary Market Transactions. Lender shall have the right to modify, split and/or sever the Loan in accordance with this Section 9.1.4 and, provided that such modification, split and/or severance shall comply with the terms of this Section 9.1.4, it shall become immediately effective. If requested by Lender, Borrower shall promptly execute an amendment to the Loan Documents to evidence any such modification, including, without limitation, an amendment to the Cash Management Agreement to reflect the newly created loans, notes and/or components. Borrower hereby absolutely and irrevocably appoints Lender as its true and lawful attorney, coupled with an interest, in its name and stead to make and execute all documents necessary or desirable to effect and modification, split and/or severance as described in this Section 9.1.4, Borrower ratifying all that its said attorney shall do by virtue thereof; provided, however, Lender shall not make or execute any such documents under such power until three (3) days after notice has been given to Borrower by Lender of Lender’s intent to exercise its rights under such power.

9.1.5 FEES AND EXPENSES. Unless expressly required by the terms of this Article 9, Borrower shall not be responsible for the fees and expenses incurred by Lender in connection with the transactions contemplated by this Article 9; provided, however, Borrower shall be responsible for any and all fees and expenses incurred by Borrower in connection with its obligations under this Article 9.

10. MISCELLANEOUS

10.1 EXCULPATION. Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest and rights under the Loan Documents, or in the Property, the Rents or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Property, in the Rents and in any other collateral given to Lender, and Lender shall not sue for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under or by reason of or under or in connection with any Loan Document. The provisions of this Section shall not, however, (i) constitute a waiver, release or impairment of any obligation evidenced or secured by any Loan Document; (ii) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security Instrument; (iii) affect the validity or enforceability of any of the Loan Documents or any guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of the Assignment of Leases and Rents; (vi) constitute a prohibition against Lender to commence any other appropriate action or proceeding in order for Lender to fully realize the security granted by the Security Instrument or to exercise its remedies against the Property; or (vii) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following (all such liability and obligation of Borrower for any or all of the following being referred to herein as “Borrower’s Recourse Liabilities”):

(a) fraud, willful misconduct, gross negligence, material misrepresentation or failure to disclose a material fact by or on behalf of Borrower, Guarantor, any Affiliate of Borrower or Guarantor, or any of their respective agents or representatives in connection with the Loan, including by reason of any claim under the Racketeer Influenced and Corrupt Organizations Act (RICO);

(b) the forfeiture, seizure or loss of the Property or other Collateral, or any portion thereof, because of the conduct or purported conduct of criminal or other unlawful activity by Borrower or Guarantor or any of their respective agents or representatives in connection therewith;

(c) material physical waste of the Property or any portion thereof, unless (i) the sole cause of such material physical waste is the failure to pay Approved Capital Expenses for which sufficient funds were then on deposit in the CapEx Reserve Subaccount at the time of such material physical waste, (ii) Borrower was entitled to a disbursement of funds from the CapEx Reserve Subaccount to pay for such Approved Capital Expenses in accordance with the terms and conditions of Section 3.4 hereof and (iii) Lender failed to disburse said funds from the CapEx Reserve Subaccount in accordance with the terms and conditions of Section 3.4 hereof;

(d) after an Event of Default, the removal or disposal of any portion of the Property;

(e) any Proceeds paid by reason of any Insured Casualty or any Award received in connection with a Condemnation or other sums or payments attributable to the Property not applied in accordance with the provisions of the Loan Documents (except to the extent that Borrower did not have the legal right, because of a bankruptcy, receivership or similar judicial proceeding, to direct disbursement of such sums or payments);

(f) all Rents of the Property received or collected by or on behalf of the Borrower after an Event of Default and not applied to payment of Principal and interest due under the Note, and to the payment of actual and reasonable operating expenses of the Property, as they become due or payable (except to the extent that (i) such application of such funds is prevented by bankruptcy, receivership, or similar judicial proceeding in which Borrower is legally prevented from directing the disbursement of such sums and (ii) all Rents are (A) deposited directly by the tenants into the DACA Account and (B) swept by the Clearing Bank to the Cash Management Account in accordance with the terms of the Clearing Account Agreement, the Cash Management Agreement and Section 3.1 hereof);

(g) misapplication, misappropriation or conversion by or on behalf of Borrower (including failure to turn over to Lender on demand following an Event of Default) of any gross revenues (including Rents, security deposits, advance deposits, any other deposits, rents collected in advance, funds held by Borrower for the benefit of another party and any Insurance Proceeds, Awards and Lease Termination Payments);

(h) the failure to pay Taxes or Other Charges (except to the extent that sums sufficient to pay Taxes and Other Charges have been deposited in escrow with Lender pursuant to Section 3.3 hereof or to the extent that Gross Income from Operations is not sufficient to pay such Taxes or other Charges);

(i) failure to pay charges for labor or materials or other charges that can create Liens on any portion of the Property or Collateral unless such charges are the subject of a bona fide dispute in which Borrower is contesting the amount or validity thereof in accordance with the terms of this Agreement;

(j) the failure to pay the Insurance Premiums or obtain and maintain the fully paid for Policies in accordance with this Agreement (except to the extent that sums sufficient to pay Insurance Premiums have been deposited in escrow with Lender pursuant to Section 3.3 hereof or to the extent Gross Income from Operations is not sufficient to pay the subject Insurance Premiums);

(k) the breach of any representation, warranty, covenant or indemnification in any Loan Document concerning Environmental Laws or Hazardous Substances, including, without limitation, Sections 4.20 and Section 5.7 hereof, clauses (viii) through (xi) of Section 5.27 hereof and the Environmental Indemnity Agreement entered into by Borrower and Guarantor in favor of Lender;

(l) any cost or expense incurred by Lender in connection with the enforcement of its rights and remedies against Guarantor under this Section 10.1, the Guaranty or the Environmental Indemnity;

(m) any security deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of the Security Instrument or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the receipt by Borrower of notice of the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof.

(n) the breach of any representation, warranty, covenant, or indemnification set forth in Sections 5.1, 5.12 and 5.35 hereof;

(o) fees or commissions paid by Borrower to any Affiliate after the occurrence and during the continuance of any Event of Default and/or in violation of the Loan Documents, other than property management fees and leasing commissions paid to a Manager which is an Affiliate of Borrower pursuant to the Management Agreement, unless terminated by Lender pursuant to Section 5.11.2 hereof;

(p) Borrower’s failure to return or to reimburse Lender for all Personal Property taken from the Property by or on behalf of Borrower and not replaced with Personal Property of the same utility and of the same or greater value, unless approved by Lender in writing;

(q) the breach of any representation, warranty, covenant or indemnification set forth in Article 6 hereof or any other reporting and budget approval covenants in the Loan Documents;

(r) the payment by Lender of any transfer tax incurred as a result of the exercise of remedies by Lender;

(s) the breach of any representation, warranty, covenant, or indemnification set forth in Article 9 hereof, other than Borrower’s covenant to pay fees and expenses pursuant to Section 9.1.5 hereof;

(t) Borrower fails to cooperate or to cause Guarantor or SPE Party to cooperate with Lender to effect a sale, syndication or securitization of the Loan and/or senior and junior mezzanine components thereof, as required under the Loan Documents;

(u) any liabilities of Borrower existing as of the date of the closing of Loan due to the failure of Borrower to comply with the Special Purpose Bankruptcy Remote Entity requirements set forth herein prior to such date;

(v) the breach of any representation set forth in that certain Landlord Estoppel Certificate issued by Borrower to Lender as of the date hereof; or

(w) with respect to each Property other than the Coral Hills Property identified on Schedule 5 attached hereto, any such Property is not entitled to be restored to its current use and characteristics in accordance with all applicable Legal Requirements following a Casualty or Condemnation or Borrower’s abandonment of the Property.

Notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, (A) Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that all collateral shall continue to secure all of the Debt in accordance with the Loan Documents, and (B) Lender’s agreement not to pursue personal liability of Borrower as set forth above SHALL BECOME NULL AND VOID and shall be of no further force and effect, and the Debt shall be fully recourse to Borrower in the event that one or more of the following occurs (each, a “Springing Recourse Event”):

(i) an Event of Default described in Section 8.1(d) hereof shall have occurred;

(ii) a breach of the covenants set forth in Section 5.12 hereof and such breach is cited as a factor in a court’s decision that results in a substantive consolidation (other than a substantive consolidation petitioned for or joined in by Lender) of Borrower with any other Person in a proceeding;

(iii) the occurrence of any Bankruptcy Action and/or condition or event described in either Section 8.1(f) hereof or Section 8.1(g) hereof and, with respect to such condition or event described in Section 8.1(g) hereof, either Borrower, SPE Party or Guarantor, or any Person owning an interest (directly or indirectly) in Borrower, SPE Party, or Guarantor (other than shareholders of Broad Street Realty, Inc. and unitholders of limited partnership interests in Broad Street Operating Partnership LP who (in each case) are not Affiliates, officers, directors or employees of Broad Street Realty, Inc. and/or Broad Street Operating Partnership LP), or any agent of any of the foregoing, consents to, aids, solicits, supports, or otherwise cooperates or colludes to cause such condition or event or fails to contest such condition or event;

(iv) if Guarantor, Borrower or any Affiliate of any of the foregoing, in connection with any enforcement action or exercise or assertion of any right or remedy by or on behalf of Lender under or in connection with the Note, the Security Instrument or any other Loan Document, seeks a defense (other than raising a good-faith defense), judicial intervention or injunctive or other equitable relief of any kind or asserts in a pleading filed in connection with a judicial proceeding any defense against Lender or any right in connection with any security for the Loan; or

(v) an Anchor Tenant Trigger Event occurs; provided, however, Borrower’s and Guarantor’s liability under this clause (v) shall be limited to the amount of (A) $10,650,000.00 if the Anchor Tenant Trigger Event relates to Shoppers Food Warehouse Corp. or its successors and/or assigns, and (B) $11,550,000.00 if the Anchor Tenant Trigger Event relates to Green Paradise Henrico, LLC, d/b/a New Grand Mart, or its successors and/or assigns; provided, further, however, Borrower’s and Guarantor’s liability under this clause (v) shall terminate with respect to the Anchor Tenant which is the subject of the Anchor Tenant Trigger Event at such time that an Anchor Tenant Trigger Cure Event has occurred with respect to the subject Anchor Tenant Trigger Event.

10.2 BROKERS AND FINANCIAL ADVISORS. Borrower hereby represents that it has dealt with no financial advisors, brokers, underwriters, placement agents, agents or finders in connection with the Loan, other than Robert W. Baird & Co. Borrower shall indemnify and hold Lender harmless from and against any and all claims, liabilities, costs and expenses (including attorneys’ fees, whether incurred in connection with enforcing this indemnity or defending claims of third parties) of any kind in any way relating to or arising from a claim by any Person that such Person acted on behalf of Borrower in connection with the transactions contemplated herein. The provisions of this Section 10.2 shall survive the expiration and termination of this Agreement and the repayment of the Debt.

10.3 RETENTION OF SERVICER AND CUSTODIAN.

(a) Lender reserves the right to retain the Servicer and any special servicer to act as its agent(s) hereunder with such powers as are specifically delegated to the Servicer and any special servicer by Lender, whether pursuant to the terms of this Agreement, any pooling and servicing agreement or similar agreement entered into as a result of a Secondary Market Transaction, or otherwise, together with such other powers as are reasonably incidental thereto. Borrower shall also pay the monthly servicing fees charged by the Servicer. Borrower shall pay any reasonable fees and expenses of the Servicer and any special servicer in connection with a release of the Property, assumption or modification of the Loan, enforcement of the Loan Documents or any other action taken by Servicer and any special servicer hereunder on behalf of Lender.

(b) Lender reserves the right to retain a document custodian to act as its agent(s) hereunder with such powers as are specifically delegated to any such custodian by Lender, whether pursuant to the terms of this Agreement, any custodial agreement or similar agreement entered into as a result of a Secondary Market Transaction, or otherwise, together with such other powers as are reasonably incidental thereto. Subject to the limitations set forth in Section 5.26 hereof, Borrower shall also pay the monthly custodial fees charged by any such custodian. Borrower shall pay any reasonable fees and expenses of the custodian in connection with a release of the Property, assumption or modification of the Loan, enforcement of the Loan Documents or any other action taken by the custodian hereunder on behalf of Lender.

10.4 SURVIVAL. This Agreement and all covenants, agreements, representations and warranties made herein and in the certificates delivered pursuant hereto shall survive the making by Lender of the Loan and the execution and delivery to Lender of the Note, and shall continue in full force and effect until the Debt has been indefeasibly paid in full, or such longer period if expressly set forth in this Agreement. All Borrower’s covenants and agreements in this Agreement shall inure to the benefit of the respective legal representatives, successors and assigns of Lender.

10.5 LENDER’S DISCRETION. Whenever pursuant to this Agreement or any other Loan Document, Lender exercises any right given to it to approve or disapprove, or consent or withhold consent, or any arrangement or term is to be satisfactory to Lender or is to be in Lender’s discretion, the decision of Lender to approve or disapprove, to consent or withhold consent, or to decide whether arrangements or terms are satisfactory or not satisfactory, or acceptable or unacceptable or in Lender’s discretion shall (except as is otherwise specifically herein provided) be in the sole and absolute discretion of Lender and shall be final and conclusive. Additionally, whenever in this Agreement or any other Loan Document, Lender agrees to not unreasonably withhold, condition or delay its consent, such agreement to not unreasonably withhold, condition or delay its consent shall only apply if no Event of Default is continuing, and if an Event of Default is continuing, Lender shall have the right to withhold, condition or delay its consent in its sole and absolute discretion.

10.6 GOVERNING LAW.

(a) THIS AGREEMENT WAS NEGOTIATED IN THE STATE OF NEW YORK AND THE PROCEEDS OF THE NOTE DELIVERED PURSUANT HERETO WERE DISBURSED FROM THE STATE OF NEW YORK, WHICH STATE THE PARTIES AGREE HAS A SUBSTANTIAL RELATIONSHIP TO THE PARTIES AND TO THE UNDERLYING TRANSACTION EMBODIED HEREBY, AND IN ALL RESPECTS, INCLUDING MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS AGREEMENT AND THE OBLIGATIONS ARISING HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE (WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW) AND ANY APPLICABLE LAW OF THE UNITED STATES OF AMERICA, EXCEPT THAT AT ALL TIMES THE PROVISIONS FOR THE CREATION, PERFECTION, AND ENFORCEMENT OF THE LIENS CREATED PURSUANT TO THE LOAN DOCUMENTS SHALL BE GOVERNED BY AND CONSTRUED ACCORDING TO THE LAW OF THE STATE IN WHICH THE PROPERTY IS LOCATED, IT BEING UNDERSTOOD THAT, TO THE FULLEST EXTENT PERMITTED BY THE LAW OF SUCH STATE, THE LAW OF THE STATE OF NEW YORK SHALL GOVERN THE VALIDITY AND THE ENFORCEABILITY OF ALL LOAN DOCUMENTS AND THE DEBT. TO THE FULLEST EXTENT PERMITTED BY LAW, BORROWER HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY CLAIM TO ASSERT THAT THE LAW OF ANY OTHER JURISDICTION GOVERNS THIS AGREEMENT, THE NOTE AND THE OTHER LOAN DOCUMENTS, AND THIS AGREEMENT, THE NOTE AND THE OTHER LOAN DOCUMENTS SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK PURSUANT TO § 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.

(b) ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST LENDER OR BORROWER ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE INSTITUTED IN ANY FEDERAL OR STATE COURT IN NEW YORK COUNTY, NEW YORK AND BORROWER WAIVES ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING, AND BORROWER HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT IN ANY SUIT, ACTION OR PROCEEDING. BORROWER DOES HEREBY DESIGNATE AND APPOINT:

COGENCY GLOBAL INC.
122 EAST 42^ND STREET, 18^TH FLOOR
NEW YORK, NY 10168

AS ITS AUTHORIZED AGENT TO ACCEPT AND ACKNOWLEDGE ON ITS BEHALF SERVICE OF ANY AND ALL PROCESS WHICH MAY BE SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY FEDERAL OR STATE COURT IN NEW YORK, NEW YORK, AND AGREES THAT SERVICE OF PROCESS UPON SAID AGENT AT SAID ADDRESS AND WRITTEN NOTICE OF SAID SERVICE OF BORROWER MAILED OR DELIVERED TO BORROWER IN THE MANNER PROVIDED HEREIN SHALL BE DEEMED IN EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON BORROWER (UNLESS LOCAL LAW REQUIRES ANOTHER METHOD OF SERVICE), IN ANY SUCH SUIT, ACTION OR PROCEEDING IN THE STATE OF NEW YORK. BORROWER (I) SHALL GIVE PROMPT NOTICE TO LENDER OF ANY CHANGED ADDRESS OF ITS AUTHORIZED AGENT HEREUNDER, (II) MAY AT ANY TIME AND FROM TIME TO TIME DESIGNATE A SUBSTITUTE AUTHORIZED AGENT WITH AN OFFICE IN NEW YORK, NEW YORK (WHICH OFFICE SHALL BE DESIGNATED AS THE ADDRESS FOR SERVICE OF PROCESS), AND (III) SHALL PROMPTLY DESIGNATE SUCH A SUBSTITUTE IF ITS AUTHORIZED AGENT CEASES TO HAVE AN OFFICE IN NEW YORK, NEW YORK OR IS DISSOLVED WITHOUT LEAVING A SUCCESSOR. NOTWITHSTANDING THE FOREGOING, LENDER SHALL HAVE THE RIGHT TO INSTITUTE ANY LEGAL SUIT, ACTION OR PROCEEDING FOR THE ENFORCEMENT OR FORECLOSURE OF ANY LIEN ON ANY COLLATERAL FOR THE LOAN IN ANY FEDERAL OR STATE COURT IN ANY JURISDICTION(S) THAT LENDER MAY ELECT IN ITS SOLE AND ABSOLUTE DISCRETION, AND BORROWER WAIVES ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING, AND BORROWER HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT IN ANY SUIT, ACTION OR PROCEEDING.

10.7 MODIFICATION, WAIVER IN WRITING. No modification, amendment, extension, discharge, termination or waiver of any provision of this Agreement or of any other Loan Document, nor consent to any departure by Borrower therefrom, shall in any event be effective unless the same shall be in a writing signed by the party against whom enforcement is sought, and then such waiver or consent shall be effective only in the specific instance, and for the purpose, for which given. Except as otherwise expressly provided herein, no notice to or demand on Borrower shall entitle Borrower to any other or future notice or demand in the same, similar or other circumstances. Neither any failure nor any delay on the part of Lender in insisting upon strict performance of any term, condition, covenant or agreement, or exercising any right, power, remedy or privilege hereunder, or under any other Loan Document, shall operate as or constitute a waiver thereof, nor shall a single or partial exercise thereof preclude any other future exercise, or the exercise of any other right, power, remedy or privilege. In particular, and not by way of limitation, by accepting payment after the due date of any amount payable under any Loan Document, Lender shall not be deemed to have waived any right either to require prompt payment when due of all other amounts due under the Loan Documents, or to declare an Event of Default for failure to effect prompt payment of any such other amount. Lender’s actions in making a Future Advance or a disbursement of any Reserves in accordance with this Agreement shall not be deemed to be a waiver by Lender of any then existing uncured Default or Event of Default, whether known or unknown to Lender.

10.8 TRIAL BY JURY. BORROWER AND LENDER HEREBY AGREE NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVE ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THE LOAN DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY BORROWER AND LENDER, AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. EITHER PARTY IS HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY THE OTHER.

10.9 HEADINGS/SCHEDULES/EXHIBITS. The Section headings in this Agreement are included herein for convenience of reference only and shall not constitute a part of this Agreement for any other purpose. The Schedules and Exhibits attached hereto, are hereby incorporated by reference as a part of the Agreement with the same force and effect as if set forth in the body hereof.

10.10 SEVERABILITY. Wherever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.

10.11 PREFERENCES. Upon the occurrence and continuance of an Event of Default, Lender shall have the continuing and exclusive right to apply or reverse and reapply (or having so applied, to reverse and reapply) any and all payments by Borrower to any portion of the Debt. To the extent Borrower makes a payment to Lender, or Lender receives proceeds of any collateral, which is in whole or in part subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid to a trustee, receiver or any other party under any bankruptcy law, state or federal law, common law or equitable cause, then, to the extent of such payment or proceeds received, the Debt or part thereof intended to be satisfied shall be revived and continue in full force and effect, as if such payment or proceeds had not been received by Lender. This provision shall survive the expiration or termination of this Agreement and the repayment of the Debt.

10.12 CERTAIN WAIVERS. Borrower shall not be entitled to any notices of any nature whatsoever from Lender except with respect to matters for which this Agreement or any other Loan Document specifically and expressly requires the giving of notice by Lender to Borrower and except with respect to matters for which Borrower is not, pursuant to applicable Legal Requirements, permitted to waive the giving of notice. Borrower hereby expressly waives the right to receive any notice from Lender with respect to any matter for which no Loan Document specifically and expressly requires the giving of notice by Lender to Borrower. Without limiting any of the other provisions contained herein, Borrower hereby unconditionally and irrevocably waives, to the maximum extent not prohibited by applicable law, any rights it may have to claim or recover against Lender in any legal action or proceeding any special, exemplary, punitive or consequential damages.

10.13 REMEDIES OF BORROWER. If a claim or adjudication is made that Lender or any of its agents, including Servicer, has acted unreasonably or unreasonably delayed acting in any case where by law or under any Loan Document, Lender or any such agent, as the case may be, has an obligation to act reasonably or promptly, Borrower agrees that neither Lender nor its agents, including Servicer, shall be liable for any monetary damages, and Borrower’s sole remedy shall be to commence an action seeking injunctive relief or declaratory judgment. Any action or proceeding to determine whether Lender has acted reasonably shall be determined by an action seeking declaratory judgment. Borrower specifically waives any claim against Lender and its agents, including Servicer, with respect to actions taken by Lender or its agents on Borrower’s behalf.

10.14 PRIOR AGREEMENTS. This Agreement and the other Loan Documents contain the entire agreement of the parties hereto and thereto in respect of the transactions contemplated hereby and thereby, and all prior agreements, understandings and negotiations among or between such parties, whether oral or written, are superseded by the terms of this Agreement and the other Loan Documents.

10.15 OFFSETS, COUNTERCLAIMS AND DEFENSES. Borrower hereby waives the right to assert a counterclaim, other than a compulsory counterclaim, in any action or proceeding brought against it by Lender or its agents, including Servicer, or otherwise offset any obligations to make payments required under the Loan Documents. Any assignee of Lender’s interest in and to the Loan Documents shall take the same free and clear of all offsets, counterclaims or defenses which Borrower may otherwise have (including with respect to any Future Funding Obligation or any default or dispute relating thereto) against any assignor of such documents, and no such offset, counterclaim or defense shall be interposed or asserted by Borrower in any action or proceeding brought by any such assignee upon such documents, and any such right to interpose or assert any such offset, counterclaim or defense in any such action or proceeding is hereby expressly waived by Borrower.

10.16 PUBLICITY. All news releases, publicity or advertising by Borrower or its Affiliates through any media intended to reach the general public, which refers to the Loan Documents, the Loan, Lender or any member of the Lender Group, a Loan purchaser, the Servicer or the trustee in a Secondary Market Transaction, shall be subject to the prior written approval of Lender. Notwithstanding the foregoing, Lender’s prior written approval shall not be required with respect to any regulatory filings with state and/or federal securities regulatory Governmental Authorities (e.g., Form 10-K, Form 10-Q and Form 8-K), as long as the descriptions of the Loan Documents, the Loan, Lender or any member of the Lender Group (to the extent applicable) are substantially the same as those descriptions set forth in the Form 8-K of Broad Street Realty, Inc. dated on or about the date hereof, a copy of which has been approved by Lender. Except to the extent required under any applicable Legal Requirement, any modifications to the descriptions of the Loan Documents, the Loan, Lender or any member of the Lender Group (to the extent applicable) which cause such descriptions not to be substantially the same as those descriptions set forth in the Form 8-K of Broad Street Realty, Inc. dated on or about the date hereof, shall be subject to Lender’s prior written approval, which approval shall not be unreasonably withheld, conditioned or delayed. Lender shall have the right to issue any of the foregoing without Borrower’s approval.

10.17 NO USURY. Borrower and Lender intend at all times to comply with applicable state law or applicable United States federal law (to the extent that it permits Lender to contract for, charge, take, reserve or receive a greater amount of interest than under state law) and that this Section 10.17 shall control every other agreement in the Loan Documents. If the applicable law (state or federal) is ever judicially interpreted so as to render usurious any amount called for under the Note or any other Loan Document, or contracted for, charged, taken, reserved or received with respect to the Debt, or if Lender’s exercise of the option to accelerate the maturity of the Loan or any prepayment by Borrower results in Borrower having paid any interest in excess of that permitted by applicable law, then it is Borrower’s and Lender’s express intent that all excess amounts theretofore collected by Lender shall be credited against the unpaid Principal and all other Debt (or, if the Debt has been or would thereby be paid in full, refunded to Borrower), and the provisions of the Loan Documents immediately be deemed reformed and the amounts thereafter collectible thereunder reduced, without the necessity of the execution of any new document, so as to comply with applicable law, but so as to permit the recovery of the fullest amount otherwise called for thereunder. All sums paid or agreed to be paid to Lender for the use, forbearance or detention of the Loan shall, to the extent permitted by applicable law, be amortized, prorated, allocated, and spread throughout the full stated term of the Loan until payment in full so that the rate or amount of interest on account of the Debt does not exceed the maximum lawful rate from time to time in effect and applicable to the Debt for so long as the Debt is outstanding. Notwithstanding anything to the contrary contained in any Loan Document, it is not the intention of Lender to accelerate the maturity of any interest that has not accrued at the time of such acceleration or to collect unearned interest at the time of such acceleration.

10.18 CONFLICT; CONSTRUCTION OF DOCUMENTS. In the event of any conflict between the provisions of this Agreement and any of the other Loan Documents, the provisions of this Agreement shall control. The parties hereto acknowledge that each is represented by separate counsel in connection with the negotiation and drafting of the Loan Documents and that the Loan Documents shall not be subject to the principle of construing their meaning against the party that drafted them.

10.19 NO THIRD PARTY BENEFICIARIES. The Loan Documents are solely for the benefit of Lender and Borrower and nothing contained in any Loan Document shall be deemed to confer upon anyone other than the Lender and Borrower any right to insist upon or to enforce the performance or observance of any of the obligations contained therein.

10.20 YIELD MAINTENANCE PREMIUM. Borrower acknowledges that (a) Lender is making the Loan in consideration of the receipt by Lender of all interest and other benefits intended to be conferred by the Loan Documents and (b) if payments of Principal are made (or, in the event of acceleration of the Maturity Date, required to be made) to Lender on or prior to the Yield Maintenance Date, for any reason whatsoever, whether voluntary, as a result of Lender’s acceleration of the Loan after an Event of Default, by operation of law or otherwise, Lender will not receive all such interest and other benefits and may, in addition, incur costs. For these reasons, and to induce Lender to make the Loan, Borrower agrees that, except as expressly provided in Section 7.4.2 or elsewhere in this Agreement, all such prepayments, if any, whether voluntary or involuntary, will be accompanied by the Yield Maintenance Premium. Such Yield Maintenance Premium shall be required whether payment is made by Borrower, by a Person on behalf of Borrower, or by the purchaser at any foreclosure sale, and may be included in any bid by Lender at such sale. Borrower further acknowledges that (A) it is a knowledgeable real estate developer and/or investor; (B) it fully understands the effect of the provisions of this Section 10.20, as well as the other provisions of the Loan Documents; (C) the making of the Loan by Lender at the Interest Rate and other terms set forth in the Loan Documents are sufficient consideration for Borrower’s obligation to pay a Yield Maintenance Premium (if required); and (D) Lender would not make the Loan on the terms set forth herein without the inclusion of such provisions. Borrower also acknowledges that the provisions of this Agreement limiting the right of prepayment and providing for the payment of the Yield Maintenance Premium and other charges specified herein were independently negotiated and bargained for, and constitute a specific material part of the consideration given by Borrower to Lender for the making of the Loan except as expressly permitted hereunder.

10.21 ASSIGNMENT. The Loan, the Note, the Loan Documents and/or Lender’s rights, title, obligations and interests therein may be assigned, pledged, delegated, participated or otherwise transferred by Lender and any of its successors and assigns to any Person without Borrower’s or Guarantor’s consent at any time in its discretion, in whole or in part, whether by operation of law (pursuant to a merger or other successor in interest) or otherwise. Upon such assignment, all references to Lender in this Loan Agreement and in any Loan Document shall be deemed to refer to such assignee or successor in interest and such assignee or successor in interest shall thereafter stand in the place of Lender. Borrower may not assign and/or delegate, as applicable, its rights, title, interests or obligations under this Loan Agreement or under any of the Loan Documents.

10.22 SET-OFF. In addition to any rights and remedies of Lender provided by this Loan Agreement and by law, Lender shall have the right, without prior notice to Borrower, any such notice being expressly waived by Borrower to the extent permitted by applicable law, upon any amount becoming due and payable by Borrower hereunder (whether at the stated maturity, by acceleration or otherwise) to set-off and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by Lender or any Affiliate thereof to or for the credit or the account of Borrower. Lender agrees promptly to notify Borrower after any such set-off and application made by Lender; provided that the failure to give such notice shall not affect the validity of such set-off and application.

10.23 COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be an original, but all of which shall together constitute one and the same instrument.

10.24 RIGHT OF FIRST OFFER TO REFINANCE LOAN. In the event that Borrower intends to refinance all or any portion of the Property, Borrower shall provide written notice to Lender of such intent, which written notice shall identify the material terms on which Borrower intends to so refinance the Property (the “Refinance Notice”). Lender shall have the right to elect to provide such refinancing by delivering to Borrower within five (5) Business Days after receipt of the Refinance Notice written notice of such election (the “Election Notice”). Following such election, Lender and Borrower shall negotiate in good faith the terms and conditions of such refinancing and shall endeavor to execute a term sheet with respect thereto within ten (10) Business Days after Lender’s delivery of the Election Notice to Borrower. In the event that Lender elects not to deliver the Election Notice or Borrower and Lender are not able to agree on the terms and conditions of Borrower’s refinancing of the Property and execute a term sheet within the applicable time periods set forth herein, Borrower shall be free to consummate the refinancing of the Property at any time.

10.25 PROOFS OF CLAIM. In the case of any receivership, insolvency, bankruptcy, reorganization, arrangement, adjustment, composition or other proceedings affecting Borrower, SPE Party or Guarantor, or any of their respective creditors or property, Lender, to the extent permitted by law, shall be entitled to file such proofs of claim and other documents as may be necessary or advisable in order to have the claims of Lender allowed in such proceedings for the entire Debt at the date of the institution of such proceedings and for any additional amount which may become due and payable by Borrower hereunder after such date.

10.26 WAIVER OF STAY. Borrower agrees (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law or any usury or other law wherever enacted, now or at any time hereafter in force, which would prohibit or forgive Borrower from paying all or any portion of the Debt or which may affect the covenants or the performance of this Agreement; and Borrower (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it will not hinder, delay or impede the execution of any power herein granted to the holders, but will suffer and permit the execution of every such power as though no such law had been enacted.

[No Further Text on This Page; Signature Pages to Follow]

IN WITNESS WHEREOF, the parties hereto have caused this Loan Agreement to be duly executed by their duly authorized representatives, all as of the day and year first above written.

BORROWER:

BSV COLONIAL OWNER LLC,
BSV LAMONTICELLO OWNER LLC,
BSV WEST BROAD COMMONS LLC,
each a Virginia limited liability company

BSV CRESTVIEW SQUARE LLC,
BSV CORAL HILLS LLC,

each a Maryland limited liability company

BSV DEKALB LLC,
a Pennsylvania limited liability company

By: /s/ Michael Z. Jacoby

Name: Michael Z. Jacoby

Title: Chief Executive Officer

LENDER:

BIG REAL ESTATE FINANCE I, LLC,
a Delaware limited liability company

By: /s/ Richard Cadigan
Name: Richard Cadigan
Title: Authorized Signatory

SCHEDULE 1

DEFINITIONS

The following terms have the meanings set forth below:

“Accounts” shall have the meaning set forth in Section 3.11 hereof.

“Account Collateral” shall mean: (i) the Accounts, and all Cash, checks, drafts, Letters of Credit, certificates and instruments, if any, from time to time deposited or held in the Accounts from time to time; (ii) all interest, dividends, Cash, instruments and other property from time to time received, receivable or otherwise payable in respect of, or in exchange for, any or all of the foregoing; and (iii) to the extent not covered by clauses (i) - (ii) above, all “proceeds” (as defined under the UCC as in effect in the State in which the Accounts are located) of any or all of the foregoing.

“Acceptable Counterparty” shall have the meaning set forth in Section 2.7.1(a) hereof.

“Act” shall have the meaning set forth in the definition of Single Member Bankruptcy Remote LLC herein.

“Affiliate” means as to any Person, any other Person: (i) directly or indirectly controlling, controlled by, or under common control with, the first Peron; or (ii) that is a director or officer of such Person or of an Affiliate of such Person.

“Agreement” means this Loan Agreement (including all schedules, exhibits, annexes and appendices hereto), as the same may be amended or modified from time to time.

“Anchor Tenant” shall mean, individually and collectively, as the context may require, (i) Shoppers Food Warehouse Corp., its successors and/or assigns, and (ii) Green Paradise Henrico, LLC, d/b/a New Grand Mart, its successors and/or assigns, and any replacement tenant of an Anchor Tenant reasonably acceptable to Lender.

“Anchor Tenant Lease” shall mean, individually and collectively, as the context may require, (i) that certain Lease dated December 1, 1986 by and between BSV Coral Hills LLC, as successor in interest, as landlord, and Shoppers Food Warehouse Corp., as successor in interest, as tenant, as same may be amended, modified, supplemented and/or assigned from time to time, and (ii) that certain Lease dated April 11, 2017 by and between BSV West Broad Commons LLC, as landlord, and Green Paradise Henrico, d/b/a New Grant Mart, as tenant, as same may be amended, modified, supplemented and/or assigned from time to time.

“Anchor Tenant Premises” shall mean, individually and collectively, as the context may require, the premises demised pursuant to an Anchor Tenant Lease.

“Anchor Tenant Rollover Reserve Cap” shall mean (i) with respect to Shoppers Food Warehouse Corp., its successors and/or assigns, and any replacement tenant thereof, the sum of One Million One Hundred Forty Thousand and 00/100 Dollars ($1,140,000.00), and (ii) with respect to Green Paradise Henrico, LLC, d/b/a New Grand Mart Shoppers Food, its successors and/or assigns, and any replacement tenant thereof, the sum of One Million One Hundred Forty Thousand and 00/100 Dollars ($1,140,000.00).

“Anchor Tenant Trigger Cure Event” shall mean: (a) if the Anchor Tenant Trigger Event was caused solely by the occurrence of clause (a) in the definition of “Anchor Tenant Trigger Event”, such time that the subject Anchor Tenant has affirmed its lease in bankruptcy and has provided Lender with an estoppel certificate reasonably acceptable to Lender certifying that, among other things, its lease is in full force and effect, there is no default beyond any applicable notice and cure periods under the subject lease, the subject Anchor Tenant is in physical occupancy of its premises and is paying the full, unabated base rent required under its lease, and its lease has not been modified (or, if modified, such modifications have been approved by Lender in writing); (b) if the Anchor Tenant Trigger Event is caused solely by the occurrence of clause (b) in the definition of “Anchor Tenant Trigger Event”, such time that (i) the respective Anchor Tenant Premises are physically occupied by tenant(s) acceptable to Lender in its reasonable discretion pursuant to an executed lease agreement(s) acceptable to Lender in its reasonable discretion, (ii) tenant(s) has delivered to Lender an estoppel certificate or such other evidence in form and substance reasonably acceptable to Lender confirming that, among other things, its lease is in full force and effect, there is no default beyond any applicable notice and cure periods under the subject lease, tenant(s) has commenced paying the full, unabated rent required under its lease, and tenant(s) has accepted unconditional possession of the Anchor Tenant Premises with no outstanding tenant allowances (unless funds at least equal to such tenant allowances have been deposited into the Rollover Reserve Account); (c) if the Anchor Tenant Trigger Event is caused solely by the occurrence of clause (c) in the definition of “Anchor Tenant Trigger Event”, such time that (i) Anchor Tenant has delivered to Lender an estoppel certificate in form and substance reasonably acceptable to Lender certifying that, among other things, its lease is in full force and effect, there is no default beyond any applicable notice and cure periods under the subject lease, said Anchor Tenant has been in physical occupancy of and operating its business in its demised premises and has been paying the full, unabated base rent required under its lease for the immediately preceding four (4) calendar months, and (ii) Anchor Tenant is paying the full, unabated rent required under its lease; (d) if the Anchor Tenant Trigger Event is caused solely by the occurrence of clause (d) in the definition of “Anchor Tenant Trigger Event”, such time that (i) the Anchor Tenant has cured all defaults pursuant to the terms of its lease and to the reasonable satisfaction of Borrower and Lender and (ii) Anchor Tenant has delivered to Lender an estoppel certificate or such other evidence in form and substance reasonably acceptable to Lender confirming that, among other things, its lease is in full force and effect, there is no default under the subject lease, and Anchor Tenant is in physical occupancy of its demised premises and is paying the full, unabated base rent required under its lease; or (e) if the Anchor Tenant Trigger Event is caused solely by the occurrence of clause (e) in the definition of “Anchor Tenant Trigger Event”, such time that (i) the Anchor Tenant has executed a renewal of its lease extending the term thereof for an additional term of no less than five (5) years beyond the expiration date of the then current term and upon other terms and conditions reasonably acceptable to Lender, provided that all tenant improvements with respect to the Anchor Tenant Premises have been completed or Borrower has deposited an amount equal to 125% of the cost of all such tenant improvements, as calculated by Lender, into the Rollover Reserve Account, unless otherwise agreed to by Lender in its sole discretion, or (ii) if the subject Anchor Tenant does not so renew its lease, then the conditions set forth in clause (b) hereof have been satisfied in accordance with the terms hereof.

“Anchor Tenant Trigger Event” shall mean that the Anchor Tenant (a) is subject to a Bankruptcy Action, (b) provides notices of its intent to terminate its lease early or terminates its lease during the term of this Loan, (c) provides notice of its intent to go dark or actually goes dark during the term of this Loan, (d) defaults under the terms of the applicable lease beyond any applicable notice and cure period, or (e) fails, per the terms of its lease, to provide six (6) months’ notice of its intent to renew, provided, however, if the lease is silent on providing notice to renew, no later than six (6) months prior to the scheduled lease renewal date.

“Annual Capital Budget” shall have the meaning set forth in Section 6.3.5 hereof.

“Annual Operating Budget” shall have the meaning set forth in Section 6.3.5 hereof.

“Applicable Taxes” shall have the meaning set forth in Section 2.3.3 hereunder.

“Appraisal” shall mean an appraisal of the Property prepared, at the expense of Borrower, not more than one hundred eighty (180) days prior to the relevant date with respect to which an appraisal shall be required hereunder by a member of the American Institute of Real Estate Appraisers selected by Lender, which appraisal shall (i) meet the minimum appraisal standards for national banks promulgated by the Comptroller of the Currency pursuant to Title XI of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, as amended (FIRREA), (ii) be prepared on as “as is” basis, and (iii) otherwise be in form and substance satisfactory to Lender.

“Approved Capital Budget” shall have the meaning set forth in Section 6.3.5 hereof.

“Approved Capital Expenses” means Capital Expenses incurred by Borrower, provided that such Capital Expenses shall either be (i) included in the Annual Capital Budget that has been approved by Lender for the current calendar month or (ii) approved by Lender.

“Approved CapEx Expenses” means Capital Expenses incurred by Borrower with respect to the renovation of the Property in accordance with plans and specifications therefor approved by Lender in accordance with the terms of this Agreement.

“Approved Leasing Expenses” means actual out-of-pocket expenses incurred by Borrower and payable to third parties that are not Affiliates of Borrower or any Guarantor (other than Broad Street Realty, LLC, provided that the terms of clause (B) hereof are satisfied) in leasing space at the Property pursuant to Leases entered into in accordance with the Loan Documents, including brokerage commissions and tenant improvements, which expenses (i) are (A) specifically approved by Lender in connection with approving the applicable Lease, (B) incurred in the ordinary course of business and on market terms and conditions with Leases which do not require Lender’s approval under the Loan Documents, or (C) otherwise approved by Lender, which approval shall not be unreasonably withheld or delayed, and (ii) are substantiated by executed Lease documents and brokerage agreements.

“Approved Operating Budget” shall have the meaning set forth in Section 6.3.5 hereof.

“Approved Operating Expenses” means operating expenses incurred by Borrower which (i) are included in the Approved Operating Budget for the current calendar month, (ii) are for real estate taxes, insurance premiums, electricity, gas, oil, water, sewer or other utility service to the Property or (iii) have been approved by Lender.

“Award” shall have the meaning set forth in Section 7.3.2 hereof.

“Bankruptcy Action” shall mean with respect to any Person (a) such Person filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (b) the filing of an involuntary petition against such Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (c) such Person filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it, by any other Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (d) such Person consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for such Person or any portion of the Property; or (e) such Person making an assignment for the benefit of creditors, or admitting, in writing in any legal proceeding, its insolvency or inability to pay its debts as they become due, except to the extent the failure to make such admission would be a violation of Applicable Law.

“Bankruptcy Code” means Title 11 of the United States Code, 11 U.S.C. §101, et seq., as the same may be amended from time to time, and any successor statute or statutes and all rules and regulations from time to time promulgated thereunder, and any comparable foreign laws relating to bankruptcy, insolvency or creditors’ rights or any other federal or state bankruptcy or insolvency law.

“Bankruptcy Proceeding” shall have the meaning set forth in Section 4.7 hereof.

“Borrower’s Recourse Liabilities” shall have the meaning set forth in Section 10.1 hereof.

“Business Day” means any day other than a Saturday, Sunday or any day on which commercial banks in New York, New York are authorized or required to close.

“CapEx Reserve Subaccount” shall have the meaning set forth in Section 3.4 hereof.

“Capital Expenses” means expenses that are capital in nature or required under GAAP to be capitalized.

“Cash Collateral Subaccount” shall have the meaning set forth in Section 3.10 hereof.

“Cash Management Account” shall have the meaning set forth in Section 3.1 hereof.

“Cash Management Bank” means a bank or depository selected by Lender in its discretion to hold the Cash Management Account.

“Cash Management Period” means the period commencing on the occurrence of a Cash Trap Trigger Event until the occurrence of a Cash Trap Trigger Event Cure; and ending upon Lender giving notice to the Clearing Bank that the sweeping of funds into the Cash Management Account may cease, which notice Lender shall only be required to give if (1) the Loan and all other obligations under the Loan Documents have been repaid in full, or (2) the Stated Maturity Date has not occurred and a Cash Trap Trigger Event Cure has occurred and no other Cash Trap Trigger Event has occurred.

“Cash Trap Trigger Event” shall mean (i) an Event of Default, (ii) a DSCR Trigger Event (iii) an Anchor Tenant Trigger Event and (iv) a Guarantor Debt Default Trigger Event.

“Cash Trap Trigger Event Cure” shall mean (i) in the case of a Cash Trap Trigger Event occurring under sub-paragraph (i) of the definition of Cash Trap Trigger Event, that the Event of Default causing the Cash Trap Trigger Event has been cured and that for two (2) consecutive calendar quarters since the commencement of the existing Cash Management Period no Default or Event of Default has occurred and is continuing, (ii) in the case of a Cash Trap Trigger Event occurring under sub-paragraph (ii) of the definition of Cash Trap Trigger Event, that a DSCR Cure Event has occurred, (iii) in the case of a Cash Trap Trigger Event occurring under sub-paragraph (iii) of the definition of Cash Trap Trigger Event, an Anchor Tenant Trigger Cure Event has occurred, and (iv) in the case of a Cash Trap Trigger Event occurring under sub-paragraph (iv) of the definition of Cash Trap Trigger Event, a Guarantor Debt Default Trigger Cure Event has occurred.

“Casualty” shall have the meaning set forth in Section 7.2.1 hereof.

“Casualty/Condemnation Prepayment” shall have the meaning set forth in Section 2.4.2 hereof.

“Casualty/Condemnation Subaccount” shall have the meaning set forth in Section 3.8 hereof.

“Change in Control” means the occurrence of any of the following:

(a) any Person (including a Person’s Affiliates and associates) or group (as that term is understood under Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and the rules and regulations thereunder) shall have acquired beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act) of a percentage (based on voting power, in the event different classes of stock or interests shall have different voting powers) of the voting stock or voting interests of Broad Street Realty, Inc. equal to at least fifty percent (50%);

(b) as of any date a majority of the Board of Directors or similar body (the “Board”) of Broad Street Realty Inc. or Borrower consists of individuals who were not either (i) directors of Broad Street Realty Inc. or Borrower as of the corresponding date of the previous year (except with respect to the first year, the applicable corresponding date shall be the date of this Agreement), or (ii) selected, nominated or approved to become directors or trustees by the Board of Broad Street Realty Inc. or Borrower of which a majority consisted of individuals described in clause (i) above, or (iii) selected or nominated to become directors or trustees by the Board of Broad Street Realty, Inc. or Borrower, which majority consisted of individuals described in clause (i) above and individuals described in clause (ii) above;

(c) (i) Michael Jacoby shall cease to be a director on, and chairman of, the Board of Broad Street Realty, Inc. and chief executive officer of Broad Street Realty, Inc. and actively involved in the daily activities and operations of Broad Street Realty, Inc. and Borrower, and (ii) a competent and experienced Person acceptable to Lender shall not be approved by Lender in Lender’s sole and absolute discretion within ninety (90) days of such event; or

(d) Borrower is liquidated or dissolved or adopts a plan of liquidation.

“Clearing Bank” shall have the meaning set forth in Section 3.1 hereof.

“Code” means the Internal Revenue Code of 1986, as amended and as it may be further amended from time to time, any successor statutes thereto, and the applicable U.S. Department of Treasury regulations issued pursuant thereto in temporary or final form.

“Collateral” shall mean the Property, the Accounts, the Reserve Funds, the Personal Property, the Rents, the Account Collateral, and all other real or personal property of Borrower or any guarantor that is at any time pledged, mortgaged or otherwise given as security to Lender for the payment of the Debt under the Security Instrument, this Agreement or any other Loan Document.

“Condemnation” shall have the meaning set forth in Section 7.3.1 hereof.

“Control” (including with correlative meanings, the terms “controlling”, “controlled by” and “under common control with”) means the possession directly or indirectly of the power to direct or cause the direction of the management and policies of a Person, or to veto material decisions pertaining to such Person, or to veto material decisions pertaining to such Person, whether through the ownership of voting securities, by contract or otherwise. Where expressions of such as “[name of party] or any Affiliate” are used, the same shall refer to the named party and any Affiliate of the named party. Further, the Affiliates of any Person that is an entity shall include all natural persons who are officers, agents, directors, managers, members, partners, or employees of the entity Person.

“DACA Account” shall have the meaning set forth in Section 3.1 hereof.

“Debt” means the unpaid Principal, all interest accrued and unpaid thereon, the Exit Fee, any Yield Maintenance Premium and all other sums due to Lender in respect of the Loan or under any Loan Document.

“Debt Service” means, with respect to any particular period, the greater of (i) scheduled Principal and interest payments due under the Note in such period, or (ii) the product of (A) the outstanding Principal as of the end of such period multiplied by (B) the Interest Rate.

“Debt Service Coverage Ratio” means a ratio calculated by Lender in which:

(i) the numerator is the Underwritten Net Cash Flow for the twelve (12) full calendar month period immediately preceding the date of calculation as set forth in the financial statements required under this Loan Agreement; and

(ii) the denominator is the aggregate amount of Debt Service which would be due and payable for such period.

“Debt Yield” means as of any date, the ratio (expressed as a percentage) calculated by Lender of (i) the Underwritten Net Cash Flow for the twelve (12) month period ending with the most recently completed calendar month to (ii) the unpaid Principal.

“Deemed Approval Requirements” shall mean, with respect to any request for approval under Section 5.9 hereof, that (i) no Event of Default shall have occurred and be continuing (either at the date of any notices specified below or as of the effective date of any deemed approval), (ii) Borrower shall have sent Lender a written request for approval with respect to such matter in accordance with the applicable terms and conditions hereof (the “Approval Notice”), which such Approval Notice shall have been (A) accompanied by any and all information and documentation relating thereto as may be reasonably required in order to approve or disapprove such matter and (B) marked in bold lettering with the following language: “LENDER’S RESPONSE IS REQUIRED WITHIN TEN (10) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A LOAN AGREEMENT BETWEEN THE UNDERSIGNED AND LENDER” and the envelope containing the Approval Notice shall have been marked “PRIORITY: DEEMED APPROVAL MAY APPLY”, and (iii) Lender shall have failed to respond to the Approval Notice within the aforesaid time frame. For purposes of clarification, Lender requesting additional and/or clarified information, in addition to approving or denying any request (in whole or in part), shall be deemed a response by Lender for purposes of the foregoing.

“Default” means the occurrence of any event under any Loan Document which, with the giving of notice or passage of time, or both, would be an Event of Default.

“Default Rate” means a rate per annum equal to the lesser of (i) the maximum rate permitted by applicable law, or (ii) five percent (5%) above the Interest Rate, compounded monthly.

“Disclosure Document” shall have the meaning set forth in Section 9.1.2 hereof.

“DSCR Cure Event” shall mean that the Debt Service Coverage Ratio, as determined by Lender in its sole discretion, is equal to or greater than 1.20:1 for two (2) consecutive calendar quarters.

“DSCR Trigger Event” shall mean the Debt Service Coverage Ratio, as determined by Lender in its sole discretion, is less than 1.10:1 for one (1) calendar quarter.

“EagleBank” shall mean EagleBank, a subsidiary of Eagle Bancorp, Inc.

“EagleBank Loan Documents” shall mean those certain loan documents listed on Schedule 10 attached hereto.

“Easements” shall have the meaning set forth in Section 4.14 hereof.

“Eligible Account” means a separate and identifiable account from all other funds held by the holding institution that is either (i) an account or accounts maintained with a federal or state chartered depository institution or trust company which complies with the definition of Eligible Institution or (ii) a segregated trust account or accounts maintained with a federal or state chartered depository institution or trust company acting in its fiduciary capacity which, in the case of a state chartered depository institution or trust company is subject to regulations substantially similar to 12 C.F.R. §9.10(b), having in either case a combined capital and surplus of at least $50,000,000 and subject to supervision or examination by federal and state authority. An Eligible Account will not be evidenced by a certificate of deposit, passbook or other instrument.

“Eligible Institution” means a depository institution or trust company insured by the Federal Deposit Insurance Corporation, the short term unsecured debt obligations or commercial paper of which are rated at least “A-1” by S&P, “P-1” by Moody’s, and “F-1” by Fitch in the case of accounts in which funds are held for more than thirty (30) days, the long term unsecured debt obligations of which are rated at least “A” by Fitch and S&P and “A2” by Moody’s.

“Environmental Laws” shall have the meaning set forth in Section 4.20 hereof.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the rules and regulations promulgated thereunder.

“ERISA Affiliate” means all members of a controlled group of corporations and all trades and business (whether or not incorporated) under common control and all other entities which, together with Borrower, are treated as a single employer under any or all of Section 414(b), (c), (m) or (o) of the Code.

“Excess Cash” means as of each Payment Date during the continuance of a Cash Management Period, the amount of Rents, if any, remaining in the Cash Management Account after the application of all of the payments required under clauses (i) through (iv) of Section 3.11.1 hereof.

“Exchange Act” shall have the meaning set forth in Section 9.1.2 hereof.

“Existing TI/LC Subaccount” shall have the meaning set forth in Section 3.13 hereof.

“Exit Fee” means the sum of $334,250.00, which amount shall be reduced by the aggregate amount of all incremental payments of the Exit Fee made on any prepayment of less than all of the outstanding Principal balance from time to time (calculated at 0.50% of the Principal amount prepaid).

“Extension Term” shall have the meaning set forth in Section 2.9 hereof.

“Extended Maturity Date” shall have the meaning set forth in Section 2.9 hereof.

“GAAP” means generally accepted accounting principles in the United States of America, consistently applied, as of the date of the applicable financial report.

“General Construction Work Requirements” shall mean that, in connection with any work proposed to be undertaken at the Property for which Borrower has delivered a request for any Future Advance or any Reserve Funds, or for which Borrower has requested Lender’s approval of such work under the Loan Documents, (a) Borrower shall have provided to Lender, Servicer and any construction consultant: (i) evidence satisfactory to Lender of the estimated cost of completion of the work, including a construction budget, (ii) a contract for such work that is satisfactory to Lender, (iii) evidence of immediately available funds in addition to the Reserve Funds, as applicable, requested by Borrower, which in the aggregate are sufficient in Lender’s judgment to complete the proposed work, (iv) a title search for the Property indicating that it is free from all Liens not previously approved by Lender, (v) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements (including, if applicable, any future advance endorsement), bonds, plats of survey, permits, approvals, licenses and such other documents and items as Lender may reasonably require and approve in Lender’s discretion, (vi) all plans and specifications for such work, such plans and specifications to be approved by Lender prior to commencement of any work, and (vii) architectural, engineering and other third party reports as Lender shall reasonably request; and (b) Lender shall, at its option and at Borrower’s expense, have retained a consultant to review and approve all requests relating to such disbursements and/or work, which approval shall also be a condition precedent to such disbursement and/or work; (c) no payment made prior to the final completion of the work shall exceed ninety percent (90%) of the value of the work performed from time to time; (d) funds other than the Reserve Funds shall be disbursed prior to disbursement of such Reserve Funds and (e) at all times, the undisbursed balance of such Reserve Funds remaining in the hands of Lender, together with funds deposited for that purpose by or on behalf of Borrower, shall be at least sufficient in the reasonable judgment of Lender to pay for the cost of completion of the work, free and clear of all Liens or claims for Lien (and if such amount is at any time insufficient, Borrower shall deposit with Lender such additional funds as Lender reasonably determines are required for such purpose).

“Governmental Authority” means any court, board, agency, commission, office or authority of any nature whatsoever for any governmental unit (federal, state, county, district, municipal, city or otherwise) now or hereafter in existence.

“Gross Income from Operations” shall mean all income, computed in accordance with GAAP or tax accounting principles, in either case consistently applied, derived from the ownership and operation of the Property from whatever source, including, but not limited to, the Rents, utility charges, escalations, service fees or charges, license fees, parking fees, rent concessions or credits, and other required pass-throughs, but excluding sales, use and occupancy or other taxes on receipts required to be accounted for by Borrower to any Governmental Authority, refunds and uncollectible accounts, sales of furniture, fixtures and equipment, Insurance Proceeds (other than business interruption or other loss of income insurance), Awards, security deposits, interest on credit accounts, utility and other similar deposits, interest on credit accounts, interest on the Reserve Funds, and any disbursements to Borrower from the Reserve Funds. Gross income shall not be diminished as a result of the Security Instrument or the creation of any intervening estate or interest in the Property or any part thereof.

“Guarantor” shall mean, individually and collectively, as the context requires, Michael Jacoby, an individual, Thomas M. Yockey, an individual, and Broad Street Realty Inc., a Delaware corporation, or any other Person that now or hereafter guarantees any of Borrower’s obligations hereunder or any other Loan Document.

“Guarantor Debt Default Trigger Cure Event” shall mean MVB Bank or EagleBank, as the case may be, unconditionally waives, or accepts the cure of, in writing, the subject default by the MVB Bank Borrower under the MVB Bank Loan Documents or Michael Jacoby under the EagleBank Loan Documents, as the case may be, and delivers to Lender an estoppel certificate, or such other evidence in form and substance reasonably acceptable to Lender, from the subject lender evidencing same, in form and substance acceptable to Lender.

“Guarantor Debt Default Trigger Event” shall mean any default by (i) Michael Jacoby, as a guarantor of the loan evidenced by the MVB Loan Documents, or the MVB Bank Borrower under the MVB Bank Loan Documents, or (ii) Michael Jacoby under the EagleBank Loan Documents; provided, however, if (A) EagleBank unconditionally and irrevocably releases all of its right, title and interest in and to the collateral for the loan evidenced by the EagleBank Loan Documents (namely, Michael Jacoby’s pledge of his right, title and interest in and to 472,384 limited partnership units in Broad Street Operating Partnership, LP), and (B) Borrower delivers to Lender written evidence of any such release, including, without limitation, a filed copy of the UCC-3 termination financing statement terminating the subject security interest and an estoppel certificate from EagleBank, in form and substance acceptable to Lender, then the Guarantor Debt Default Trigger Event described in this clause (ii) (i.e., a default by Michael Jacoby under the EagleBank Loan Documents) shall have no further force or effect.

“Hazardous Substances” shall have the meaning set forth in Section 4.20 hereof.

“Improvements” shall have the meaning set forth in the Security Instrument.

“Indemnified Liabilities” shall have the meaning set forth in Section 5.27 hereof.

“Indemnified Party” shall have the meaning set forth in Section 5.27 hereof.

“Independent Director/Manager” means a natural person selected by Borrower (a) with prior experience as an independent director, independent manager or independent member, (b) with at least three (3) years of employment experience, (c) who is provided by a Nationally Recognized Service Company, (d) who is duly appointed as an Independent Director/Manager and who is not, will not be while serving as Independent Director/Manager (except pursuant to, if applicable, an express provision in Borrower’s operating agreement providing for the appointment of such Independent Director/Manager to become a “special member” upon such sole member’s ceasing to be a member of Borrower) and shall not have been at any time during the preceding five (5) years, any of the following:

(i) a stockholder, shareholder, partner, member, director (other than as an Independent Director/Manager), officer, employee, partner, attorney or counsel of Borrower, any Affiliate of Borrower or any direct or indirect parent of Borrower;

(ii) a customer, supplier or other Person who derives any of its purchases or revenues from its activities with Borrower or any Affiliate of Borrower (other than as an Independent Director/Manager);

(iii) a Person or other entity Controlling or under Common Control with any such stockholder, partner, customer, supplier or other Person; or

(iv) a member of the immediate family of any such stockholder, director, officer, employee, partner, customer, supplier or other Person.

A natural person who otherwise satisfies the foregoing definition and satisfies subparagraph (i) by reason of being the Independent Director/Manager of a “special purpose entity” affiliated with Borrower shall be qualified to serve as an Independent Director/Manager of Borrower, provided that the fees that such individual earns from serving as Independent Director/Manager of affiliates of Borrower in any given year constitute in the aggregate less than five percent (5%) of such individual’s annual income for that year.

A natural person who satisfies the foregoing definition other than clause (ii) shall not be disqualified from serving as an Independent Director/Manager of Borrower if such individual is an independent director or special manager provided by a Nationally Recognized Service Company that provides professional independent directors and special managers and also provides other corporate services in the ordinary course of its business.

“Initial Advance” shall have the meaning set forth in Section 2.2 hereof.

“Insured Casualty” shall have the meaning set forth in Section 7.2.2 hereof.

“Insurance Premiums” shall have the meaning set forth in Section 7.1.2 hereof.

“Interest Period” means (i) the period from the date hereof through the last day of the calendar month, and (ii) each period thereafter from the first (1st) day of each calendar month through the last day of each calendar month; except that the Interest Period, if any, that would otherwise commence before and end after the Maturity Date shall end on the Maturity Date. Notwithstanding the foregoing, in the event Lender shall have elected to change the date on which scheduled payments under the Loan are due, as described in the definition of “Payment Date”, from and after the effective date of such election, each Interest Period shall commence on the day of each month in which occurs such changed Payment Date and end on the day immediately preceding the following Payment Date, as so changed.

“Interest Rate” means for any Interest Period, the greater of (a) the Spread plus LIBOR for such Interest Period, rounded up to the next highest one-eighth of one percent and (b) 6.125% (or, when applicable pursuant to this Agreement or any other Loan Document, the Default Rate).

“Interest Rate Cap Agreement” shall have the meaning set forth in Section 2.7.1 hereof.

“Issuer” shall have the meaning set forth in Section 9.1.3 hereof.

“Key Principal” means Michael Jacoby, an individual.

“Late Payment Charge” shall have the meaning set forth in Section 2.6.3 hereof.

“Lease Termination Payments” means any of the following in connection with or relating to the rejection, buy-out, termination, surrender or cancellation of any Lease (including in connection with any bankruptcy proceeding) (i) all fees, penalties, commissions or other payments made to Borrower, (ii) any security deposits or proceeds of letters of credit held by Borrower in lieu of cash security deposits, which Borrower is permitted to retain pursuant to the applicable provision of any Lease, and (iii) any payments made to Borrower relating to unamortized tenant improvements and leasing commissions under any Lease.

“Lease” means all leases, subleases and other rental agreements, licenses or similar arrangements heretofore or hereafter entered into affecting the use, enjoyment or occupancy of, or the conduct of any activity at or in, the Property or the Improvements, including any guarantees, extensions, renewals, modifications or amendments thereof and all additional remainders, reversions and other rights and estates appurtenant thereunder.

“Legal Requirements” means statutes, laws, rules, orders, regulations, ordinances, judgments, decrees and injunctions of Governmental Authorities (including those regarding fire, health, handicapped access, sanitation, ecological, historic, zoning, environmental protection, wetlands and building laws and the Americans with Disabilities Act of 1990, Pub. L. No. 89-670, 104 Stat. 327 (1990), as amended, and all regulations promulgated pursuant thereto) affecting Borrower, any Loan Document or all or part of the Property or the construction, ownership, use, alteration or operation thereof, whether now or hereafter enacted and in force, and all permits, licenses and authorizations and regulations relating thereto, and all covenants, agreements, restrictions and encumbrances contained in any instrument, either of record or known to Borrower, at any time in force affecting all or part of the Property.

“Lender Group” shall have the meaning set forth in Section 9.1.3 hereof.

“Letter of Credit” shall mean a transferable, clean, irrevocable, unconditional, standby letter of credit in form, substance and amount reasonably satisfactory to Lender in its reasonable discretion, issued or confirmed by a commercial bank with a long term debt obligation rating of “A” or better (or a comparable long term debt obligation rating) as assigned by the Rating Agencies and otherwise satisfactory to Lender in its reasonable discretion (the “Issuing Bank”). The Letter of Credit shall be payable upon presentation of a sight draft only to the order of Lender at a bank in New York City. The Letter of Credit shall have an initial expiration date of not less than one (1) year and shall be automatically renewed for successive twelve (12) month periods for the term of the Loan (unless such Letter of Credit provides that the Issuing Bank may elect not to renew the Letter of Credit upon written notice to the beneficiary at least thirty (30) days prior to its expiration date) and shall provide for multiple draws.

“Liabilities” shall have the meaning set forth in Section 9.1.3 hereof.

“LIBOR” means, with respect to any Interest Period, the rate per annum which is equal to the rates for deposits in U.S. Dollars, for a period equal to one month, which appears on Reuters Screen LIBOR01 Page as of 11:00 a.m., London time, on the related Determination Date. If such interest rate does not appear on Reuters Screen LIBOR01 Page as of 11:00 a.m., London time, then LIBOR shall be determined from such financial reporting service as Lender shall reasonably determine and use with respect to its other loan facilities on which interest is determined based on LIBOR. If two or more such rates appear on Reuters Screen LIBOR01 Page or associated pages, the rate in respect of such Interest Period will be the arithmetic mean of such offered rates, absent manifest error. Notwithstanding the foregoing, if LIBOR cannot be determined in accordance with the first sentence of the definition of “LIBOR”, then Lender may use a successor to the LIBOR benchmark upon its determination in its commercially reasonable judgment that such successor index has become generally accepted in the commercial mortgage lending industry as a replacement to LIBOR for monthly pay floating rate obligations. For purposes hereof, (i) “Determination Date” shall mean, with respect to any Interest Period, the date which is two Eurodollar Business Days prior to the Payment Date occurring during such Interest Period; and (ii) “Eurodollar Business Day” shall mean a day on which commercial banks are open for general business (including in U.S. Dollar deposits) in London, England.

“Licenses” shall have the meaning set forth in Section 4.11 hereof.

“Lien” means any mortgage, deed of trust, lien (statutory or otherwise), pledge, hypothecation, easement, restrictive covenant, preference, assignment, security interest or any other encumbrance, charge or transfer of, or any agreement to enter into or create any of the foregoing, on or affecting all or any part of the Property or any interest therein, or any direct or indirect interest in Borrower, including any conditional sale or other title retention agreement, any financing lease having substantially the same economic effect as any of the foregoing, the filing of any financing statement, and mechanics’, materialmen’s and other similar liens and encumbrances.

“Loan” shall have the meaning set forth in Section 2.1 hereof.

“Loan Document” means this Agreement and all other documents, agreements and instruments now or hereafter evidencing, securing or delivered to Lender in connection with the Loan, including, the following, each of which is dated as of the date hereof: (i) the Promissory Note made by Borrower to Lender in the maximum principal amount of the Loan (the “Note”), (ii) those certain mortgages or deeds of trust made by Borrower, to a trustee as applicable, in favor of Lender which encumbers the Property (collectively, the “Security Instrument”), (iii) those certain Assignments of Leases and Rents from Borrower to Lender (collectively the “Assignment of Leases and Rents”), (iv) the Deposit Account Control Agreement (the “Clearing Account Agreement”) among Borrower, Lender and PNC Bank, National Association, (v) the Guaranty of Recourse Obligations (the “Guaranty”) made by Guarantor, (vi) the Environmental Indemnity Agreement (the “Environmental Indemnity”) made by Guarantor and Borrower, (vii) the Interest Rate Cap Assignment and Security Agreement from Borrower to Lender, (viii) the Assignment of Management Agreement and Subordination of Management Fees from Manager to Lender, and (ix) the Cash Management Agreement; as each of the foregoing may be (and each of the foregoing defined terms shall refer to such documents as they may be) amended, restated, replaced, supplemented or otherwise modified from time to time.

“Loan-to-Value Ratio” means a ratio, as determined by Lender, in which, as of any date of determination by Lender: (i) the numerator is equal to the outstanding Principal balance of the Loan, and (ii) the denominator is equal to the appraised value of the Property based on an Appraisal.

“Manager” means Broad Street Realty, LLC, a Maryland limited liability company, or any successor, assignee or replacement manager appointed by Borrower in accordance with Section 5.11.

“Management Agreement” means, individually and collectively, as the context may require, those certain Property Management and Leasing Agreement between Borrower and Manager listed on Schedule 6 attached hereto.

“Mandatory Prepayment” shall have the meaning set forth in Section 2.4.2 hereof.

“Material Adverse Change” shall have the meaning set forth in Section 2.9(d).

“Material Alteration” means any (i) individual alteration affecting (A) structural elements of the Property, (B) a roof of the Property or (C) any building system of the Property or (ii) non-structural alteration the cost of which exceeds $250,000; provided, however, that in no event shall any of the following constitute a Material Alteration (a) any Required Repairs, (b) any tenant improvement work performed pursuant to any Lease existing on the date hereof or entered into hereafter in accordance with the provisions of this Agreement, or (c) alterations performed as part of a Restoration.

“Material Lease” means any Lease which (i) individually or in the aggregate with respect to the same tenant and its Affiliates, covers at least ten thousand (10,000) square feet of the Improvements (inclusive of expansion options), (ii) is for a term longer than ten (10) years (inclusive of renewal options), (iii) has a gross annual rent of less than ninety (90%) percent of the existing rental rates for leases being replaced, (iv) wholly or partially replaces an Anchor Tenant Lease, (v) is to an Affiliate of Borrower or any Guarantor, or (vi) grants the tenants thereunder a right or an option to purchase the Property or a right of first refusal to purchase the Property.

“Maturity Date” means the date on which the final payment of principal of the Note becomes due and payable as therein provided, whether at the Stated Maturity Date or the Extended Maturity Date (if applicable), by declaration of acceleration, or otherwise.

“Minor Lease” means any Lease that is not a Material Lease.

“MVB Bank” shall mean MVB Bank, a subsidiary of MVB Financial Corp.

“MVB Bank Loan Documents” shall mean those certain loan documents listed on Schedule 9 attached hereto.

“MVB Bank Borrower” shall mean, collectively, Broad Street Operating Partnership, L.P., Broad Street Realty, Inc. and Broad Street Realty, LLC.

“Nationally Recognized Service Company” means any of CT Corporation, Corporation Service Company, National Registered Agents, Inc., Wilmington Trust Company or such other nationally recognized company that provides independent director, independent manager or independent member services and that is reasonably satisfactory to Lender, in each case that is not an Affiliate of Borrower and that provides professional independent directors and other corporate services in the ordinary course of its business.

“Net Operating Income” means for any period, the actual net operating income of the Property after deducting therefrom deposit to (but not withdrawals from) any reserves required under this Agreement.

“Notice” shall have the meaning set forth in Section 6.1 hereof.

“O&M Program” shall mean, individually and collectively, as the context may require, with respect to the Property, those certain Asbestos-Containing Material Operations & Maintenance Plans listed on Schedule 8 attached hereto, as the same may be amended, replaced, supplemented or otherwise modified from time to time.

“Obligations” shall mean Borrower’s obligation to pay the Debt, perform its obligations under the Note, this Agreement and the other Loan Documents and perform each obligation of Borrower contained in any renewal, extension, amendment, modification, consolidation, change of, or substitution or replacement for, all or any part of this Agreement, the Note or any other Loan Document, and shall include, without limitation, all “Obligations” as defined in the Security Instrument.

“Officer’s Certificate” means a certificate delivered to Lender by Borrower which is signed by an authorized signatory of Borrower certifying as to the matters set forth therein, as required by the terms and conditions of this Agreement, with any exceptions thereto to be expressly set forth in writing.

“Operating Expense Subaccount” shall have the meaning set forth in Section 3.7 hereof.

“Other Charges” shall mean all maintenance charges, impositions other than Taxes, and any other charges, including, without limitation, vault charges and license fees for the use of vaults, chutes and similar areas adjoining the Property, now or hereafter levied or assessed or imposed against the Property or any part thereof.

“Partial Release” shall have the meaning set forth in Section 5.34 hereof.

“Partial Release Date” shall have the meaning set forth in Section 5.34 hereof.

“Partial Release Price” means an amount equal to 120% of the loan amount allocated to the individual Property subject to the Partial Release as set forth on Schedule 5.

“Partial Release Property” means each of the four (4) individual Properties listed on Schedule 5.

“Payment Date” means the first (1st) day of each calendar month or, if such a day is not a Business Day, the next Business Day; provided, however, Lender may elect once during the Term, in its sole discretion, to change the date on which scheduled payments are due under the Loan upon written notice thereof to Borrower setting forth such changed date, in which event, upon the effective date of such notice, the Payment Date hereunder shall be the date set forth therein.

“Permitted Encumbrances” means (i) the Liens created or specifically permitted to exist by the terms of the Loan Documents, (ii) all Liens and other matters disclosed in the Title Insurance Policy, (iii) Liens, if any, for Taxes or Other Charges not yet due and payable and not delinquent, (iv) any workers’, mechanics’ or similar Liens on the Property provided that any such Lien is bonded or discharged within thirty (30) days after Borrower first receives notice of such Lien and (v) such other title and survey exceptions as Lender approves in writing in Lender’s sole and absolute discretion.

“Permitted Indebtedness” shall have the meaning set forth in Section 5.19 hereof.

“Permitted Investments” means any one or more of the following obligations or securities payable on demand or having a scheduled maturity on or before the Business Day preceding the date upon which such funds are required to be drawn, and having at all times the required ratings, if any, provided for in this definition, unless each Rating Agency shall have confirmed in writing to Lender that a lower rating would not, in and of itself, result in a downgrade, qualification or withdrawal of the then current ratings assigned to any Securities:

(i) any money market fund so long as the money market fund is rated “AAA M” or “AAA M-G” by each Rating Agency (or, if not rated by any Rating Agency other than S&P, otherwise acceptable to such Rating Agency or Agencies, as applicable, as confirmed in writing that such investment would not, in and of itself, result in a downgrade, qualification or withdrawal of the then current ratings assigned to any Securities); and

(ii) such other obligations as are acceptable as Permitted Investments to each Rating Agency, as confirmed in writing to Lender, that such obligations would not, in and of itself, result in a downgrade, qualification or withdrawal of the then current ratings assigned to any Securities;

provided, however, that the investments must (A) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (B) if rated by S&P, must not have an “r” highlighter affixed to their rating, (C) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (D) such investments must not be subject to liquidation prior to their maturity; and provided, further, that, with respect to each investment described above, in the judgment of Lender, such instrument continues to qualify as a “cash flow investment” pursuant to Code Section 860G(a)(6) earning a passive return in the nature of interest and that no instrument or security shall be a Permitted Investment if (x) such instrument or security evidences a right to receive only interest payments or (y) the right to receive principal and interest payments derived from the underlying investment provides a yield to maturity in excess of 120% of the yield to maturity at par of such underlying investment.

“Permitted Transfers” means:

(i) a Lease entered into in accordance with the Loan Documents; or

(ii) a Permitted Encumbrance; or

(iii) a Transfer of an interest (direct or indirect) in Borrower (other than the membership interest held by SPE Party, or a direct Transfer of an interest in SPE Party) to any Person, including, without limitation, (1) the sale, Transfer or issuance of shares of common stock in a publicly traded entity, provided such shares of common stock are listed or admitted to trading on the New York Stock Exchange or another nationally recognized stock exchange or are quoted in the over-the-counter market by OTC Markets Group Inc. (or similar organization or agency succeeding to it) (“Public Entity Transfers”), and (2) the sale, Transfer, issuance or redemption of any units of limited partnership in Broad Street Operating Partnership LP, including in connection with the redemption thereof in accordance with the organizational documents of Broad Street Operating Partnership LP, and (3) Transfers of any interest in any Person who owns shares of common stock in Broad Street Realty, Inc. or units of limited partnership in Broad Street Operating Partnership LP (“Upstream Holder Transfers”); or

(iv) the granting of any pledge by Michael Jacoby of any securities held by him in Broad Street Realty, Inc. and/or Broad Street Operating Partnership LP, in each case, pursuant to the terms of the EagleBank Loan Documents and/or the MVB Loan Documents;

provided that, with respect to clauses (i) through (iv) hereof: (A) such Transfer shall not (x) cause the transferee (other than Key Principal), together with its Affiliates, to acquire Control of Borrower or SPE Party or to increase its direct or indirect interest in Borrower or SPE Party to an amount which equals or exceeds forty-nine percent (49%) or (y) result in a Change in Control; (B) after giving effect to such Transfer, Key Principal shall continue to own at least two percent (2%) of the equity interests (direct or indirect) in Borrower; (C) if such Transfer would cause the transferee to acquire or increase its direct or indirect interest in Borrower or SPE Party in or to an amount which equals or exceeds twenty percent (20%), Lender shall have approved in its reasonable discretion such proposed transferee, which approval shall be based upon Lender’s satisfactory determination as to the reputable character and creditworthiness of such proposed transferee, as evidenced by credit and background checks performed by Lender and such other financial statements and other information reasonably requested by Lender; (D) except with respect to Public Entity Transfers and Upstream Holder Transfers, Borrower shall give Lender notice of such Transfer together with copies of all instruments effecting such Transfer not more than thirty (30) days after the date of such Transfer; and (E) the legal and financial structure of Borrower and its members and the single purpose nature and bankruptcy remoteness of Borrower and its members after such Transfer, shall satisfy Lender’s then current applicable underwriting criteria and requirements (and Borrower’s representations and warranties set forth in Section 4.1 continues to be true and correct, and no Event of Default shall have occurred under Section 5.12).

“Person” means any individual, corporation, partnership, limited liability company, joint venture, estate, trust, unincorporated association, any other person or entity, and any federal, state, county or municipal government or any bureau, department or agency thereof and any fiduciary action in such capacity on behalf of an of the foregoing.

“Personal Property” shall have the meaning set forth in the Security Instrument.

“Plan” means (i) an employee benefit or other plan established or maintained by Borrower or any ERISA Affiliate or to which Borrower or any ERISA Affiliate makes or is obligated to make contributions and (ii) which is subject to Title IV of ERISA or Section 302 of ERISA or Section 412 of the Code.

“Policies” shall have the meaning set forth in Section 7.1.2 hereof.

“Principal” means the maximum principal amount of $66,850,000.00 or so much thereof as shall have been advanced hereunder and remain outstanding from time to time.

“Proceeds” shall have the meaning set forth in Section 7.2.2 hereof.

“Property” means the parcel of real property and Improvements thereon owned by Borrower and encumbered by the Security Instrument; together with all rights pertaining to such real property and Improvements, and all other collateral for the Loan as more particularly described in the granting clauses of the Security Instrument and referred to therein as the Trust Property.

“Proposed Material Lease” shall have the meaning set forth in Section 5.9.2 hereof.

“Provided Information” shall have the meaning set forth in Section 9.1.1 hereof.

“Qualified Carrier” shall have the meaning set forth in Section 7.1.1 hereof.

“Qualified Manager” shall mean a reputable and experienced professional management organization (a) which manages, together with its Affiliates, ten (10) properties of a type, quality and size similar to the Property which are located in the same geographic vicinity as the Property, and totaling in the aggregate no less than 3,500,000 square feet and (b) prior to whose employment as manager of the Property such employment shall have been approved by Lender.

“Rating Agency” means each of S&P Global (f/k/a Standard & Poor’s Rating Services), a division of The McGraw-Hill Companies, Inc. (“S&P”), Moody’s Investors Service, Inc. (“Moody’s”), and Fitch, Inc. (“Fitch”) or any other nationally recognized statistical rating organization to the extent any of the foregoing have been engaged by Lender or its designee in connection with or in anticipation of any Secondary Market Transaction.

“Registration Statement” shall have the meaning set forth in Section 9.1.3 hereof.

“Remedial Work” shall have the meaning set forth in Section 5.7.2 hereof.

“REMIC Test” shall mean if the Loan is included in a REMIC Trust and (a) any portion of the Property is sought to be released from the lien of the Mortgage, whether in connection with a Casualty or Condemnation or otherwise, and (b) immediately after any such release the ratio of the unpaid principal balance of the Loan to the value of the remaining Property, after taking into account any proposed Restoration of the remaining Property is greater than one hundred twenty-five percent (125%) (based solely on real property and excluding any personal property or going concern value) (such value to be determined, in Lender’s sole discretion, by any commercially reasonable method permitted to a REMIC Trust, it being understood that Lender shall not require a new or updated appraisal to make such determination so long as there is another commercially reasonable valuation method available to Lender, which may include a buyer’s purchase price in the case of a contemporaneous arm’s length sale or a broker’s price opinion so long as such method is a commercially reasonable valuation method permitted to a REMIC Trust, as determined in Lender’s sole discretion), the outstanding Principal balance must first be paid down by a “qualified amount” as such term is defined in Internal Revenue Service Revenue Procedure 2010-30, as the same may be modified, supplemented, superseded or amended from time to time (regardless of whether Borrower or Lender actually receive or are entitled to receive any related Net Proceeds in the case of a Casualty or Condemnation), unless Lender receives an opinion of counsel that, if the foregoing prepayment is not made, the applicable REMIC Trust will neither fail to maintain its status as a “real estate mortgage investment conduit” within the meaning of Section 860D of the Code or be subject to any tax, in either case, as a result of such release. If and to the extent the release is in connection with a Casualty or Condemnation, and if Borrower shall have otherwise satisfied each of the conditions to release of Net Proceeds, only such amount of the Net Proceeds then held or controlled by Lender, if any, in excess of the “qualified amount” required to pay down the principal balance of the Loan may be released for purposes of Restoration or released as otherwise expressly provided in Section 7.4.1. Any prepayment made under this definition shall be accompanied by payment of the Yield Maintenance Premium, except that so long as no Event of Default shall have occurred and be continuing, no Yield Maintenance Premium shall be due in connection with any such prepayment made by reason of a release in connection with a Casualty or Condemnation. Borrower shall pay or, if Borrower fails to pay, reimburse Lender upon receipt of notice from Lender, for all reasonable costs and expenses (including reasonable attorneys’ fees and disbursements) incurred by Lender in connection with confirming compliance with or enforcing the terms and provisions of this definition.

“REMIC Trust” means any “real estate mortgage investment conduit” within the meaning of Section 860D of the IRS Code that holds any interest in all or any portion of the Loan.

“Rent” means all rents, rent equivalents, moneys payable as damages (including payments by reason of the rejection of a Lease in a Bankruptcy Proceeding) or in lieu of rent or rent equivalents, royalties (including all oil and gas or other mineral royalties and bonuses), income, fees, receivables, receipts, revenues, deposits (including security, utility and other deposits), accounts, cash, issues, profits, charges for services rendered, and other payment and consideration of whatever form or nature received by or paid to or for the account of or benefit of Borrower, Manager or any of their agents or employees from any and all sources arising from or attributable to the Property and the Improvements, including all receivables, customer obligations, installment payment obligations and other obligations now existing or hereafter arising or created out of the sale, lease, sublease, license, concession or other grant of the right of the use and occupancy of the Property or rendering of services by Borrower, Manager or any of their agents or employees and proceeds, if any, from business interruption or other loss of income insurance.

“Rent Roll” shall have the meaning set forth in Section 4.16 hereof.

“Required Repairs” shall have the meaning set forth in Section 3.2.1 (and further described on Schedule 2) hereof.

“Required Repairs Subaccount” shall have the meaning set forth in Section 3.2.2 hereof.

“Reserve Funds” shall mean the escrow or reserve funds established by the Loan Documents, including, but not limited to, those described in Section 2.2.2, Article 3, Section 7.4.1 and Section 7.4.3.

“Restoration” shall have the meaning set forth in Section 7.4.1 hereof.

“Rollover Reserve Subaccount” shall have the meaning set forth in Section 3.5.1 hereof.

“Secondary Market Transaction” shall have the meaning set forth in Section 9.1.1 hereof.

“Securities” shall have the meaning set forth in Section 9.1.1 hereof.

“Securities Act” shall have the meaning set forth in Section 9.1.2 hereof.

“Security Contracts” means, individually and collectively, as the context may require, (i) that certain Vendor Service Agreement dated as of April 5, 2019 between BSV Coral Hills LLC and Sitruc Consulting Group LLC, as amended from time to time, and (ii) that certain Vendor Service Agreement dated as of December 30, 2016 between BSV Crestview Square LLC and Eagle Protection Services, Inc., as amended from time to time.

“Security Deposit Subaccount” shall have the meaning set forth in Section 3.9 hereof.

“Servicer” means a servicer selected by Lender to service the Loan.

“Significant Casualty” shall have the meaning set forth in Section 7.2.2 hereof.

“Single Member Bankruptcy Remote LLC” means a limited liability company organized under the laws of the State of Delaware with only one member which at all times since its formation and at all times thereafter (i) complies with the following clauses of the definition of Special Purpose Bankruptcy Remote Entity: (i)(A), (ii)(A), (iii), (iv), (ix), (x), (xi) through (xxxiii); (ii) has maintained and will maintain its accounts, books and records separate from any other person; (iii) has and will have an operating agreement which provides that the business and affairs of such entity shall be managed by or under the direction of a board of one or more directors/managers designated by the sole member of the Single Member Bankruptcy Remote LLC (“Sole Member”), and at all times there shall be at least one (1) duly appointed Independent Director/Manager on the board of directors/managers, and the board of directors/managers will not take any action requiring the unanimous affirmative vote of 100% of the members of its board of directors/managers unless, at the time of such action there is at least one (1) member of the board of directors/managers who is an Independent Director/Manager, and all of the directors and the Independent Director/Manager shall have participated in such vote; (iv) has and will have an operating agreement which provides that, as long as any portion of the Debt remains outstanding, (A) upon the occurrence of any event that causes Sole Member to cease to be a member of Borrower (other than (x) upon an assignment by Sole Member of all of its limited liability company interest in Borrower and the admission of the transferee, if permitted pursuant to the organizational documents of Borrower and the Loan Documents, or (y) the resignation of Sole Member and the admission of an additional member of Borrower, if permitted pursuant to the organizational documents of Borrower and the Loan Documents), the person acting as an Independent Director/Manager of Borrower shall, without any action of any Person and simultaneously with Sole Member ceasing to be a member of Borrower, automatically be admitted as the sole member of Borrower (the “Special Member”) and shall preserve and continue the existence of Borrower without dissolution, (B) no Special Member may resign or transfer its rights as Special Member unless (x) a successor Special Member has been admitted to Borrower as a Special Member, and (y) such successor Special Member has also accepted its appointment as an Independent Director/Manager, (C) no Independent Director/Manager may be removed or replaced unless the company provides Lender with not less than three (3) Business Days’ prior written notice of (a) any proposed removal of an Independent Director/Manager, together with a statement as to the reasons for such removal, and (b) the identity of the proposed replacement Independent Director/Manager, together with a certification that such replacement satisfies the requirements set forth in the organizational documents for an Independent Director/Manager, and (D) except as expressly permitted pursuant to the terms of this Agreement, Sole Member may not resign and no additional member shall be admitted to Borrower; (v) has and will have an operating agreement which provides that, as long as any portion of the Debt remains outstanding, (A) Borrower shall be dissolved, and its affairs shall be wound up only upon the first to occur of the following: (x) the termination of the legal existence of the last remaining member of Borrower or the occurrence of any other event which terminates the continued membership of the last remaining member of Borrower in Borrower unless the business of Borrower is continued in a manner permitted by its operating agreement or the Delaware Limited Liability Company Act (the “Act”) or (y) the entry of a decree of judicial dissolution under Section 18-802 of the Act; (B) upon the occurrence of any event that causes the last remaining member of Borrower to cease to be a member of Borrower or that causes Sole Member to cease to be a member of Borrower (other than (x) upon an assignment by Sole Member of all of its limited liability company interest in Borrower and the admission of the transferee, if permitted pursuant to the organizational documents of Borrower and the Loan Documents, or (y) the resignation of Sole Member and the admission of an additional member of Borrower, if permitted pursuant to the organizational documents of Borrower and the Loan Documents), to the fullest extent permitted by law, the personal representative of such member shall be authorized to, and shall, within ninety (90) days after the occurrence of the event that terminated the continued membership of such member in Borrower, agree in writing to continue the existence of Borrower and to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of Borrower, effective as of the occurrence of the event that terminated the continued membership of such member in Borrower; (C) the bankruptcy of Sole Member or a Special Member shall not cause such member or Special Member, respectively, to cease to be a member of Borrower and upon the occurrence of such an event, the business of Borrower shall continue without dissolution; (D) in the event of dissolution of Borrower, Borrower shall conduct only such activities as are necessary to wind up its affairs (including the sale of the assets of Borrower in an orderly manner), and the assets of Borrower shall be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act; and (E) to the fullest extent permitted by law, each of Sole Member and the Special Member shall irrevocably waive any right or power that they might have to cause Borrower or any of its assets to be partitioned, to cause the appointment of a receiver for all or any portion of the assets of Borrower, to compel any sale of all or any portion of the assets of Borrower pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of Borrower.

“Sole Member” shall have the meaning set forth in the definition of Single Member Bankruptcy Remote LLC herein.

“SPE Party” means [intentionally omitted]. Lender acknowledges and agrees that Borrower is not a limited liability company with multiple members and therefore Borrower’s structure does not require an SPE Party.

“Special Member” shall have the meaning set forth in the definition of Single Member Bankruptcy Remote LLC herein.

“Special Purpose Bankruptcy Remote Entity” means:

(x) a limited liability company that is a Single Member Bankruptcy Remote LLC or (y) a corporation, limited partnership or limited liability company which at all times since its formation and at all times thereafter:

(i) was and will be organized solely for the purpose of (A) owning the Property or (B) acting as sole member of Borrower or (C) acting as a general partner of the Borrower;

(ii) has not engaged and will not engage in any business unrelated to (A) the ownership of the Property, (B) acting as general partner of the limited partnership that owns the Property or of the sole member of such entity, or (C) acting as a member of the limited liability company that owns the Property, as applicable;

(iii) has not had and will not have any assets other than those related to the Property or its partnership or member interest in the limited partnership or limited liability company that owns the Property or its sole member, as applicable;

(iv) has not engaged, sought or consented to and will not engage in, seek or consent to any division, dissolution, winding up, liquidation, consolidation, merger, asset sale (except as expressly permitted by this Agreement), transfer of partnership or membership interests or the like, or amendment of its limited partnership agreement, articles of incorporation, articles of organization, certificate of formation or operating agreement (as applicable);

(v) if such entity is a limited partnership, has and will have, as its only general partners, Special Purpose Bankruptcy Remote Entities that are corporations or limited liability companies;

(vi) will have at least one (1) Independent Director/Manager, and has not caused or allowed and will not cause or allow the board of directors/managers of such entity to take any action requiring the unanimous affirmative vote of 100% of the directors/managers of its board of directors/managers unless, at the time of such action there is at least one (1) member of the board of directors/managers that is an Independent Director/Manager and all of the directors/managers and the Independent Director/Manager shall have participated in such vote, and the organizational documents of such entity shall provide that no Independent Director/Manager may be removed or replaced unless such entity provides Lender with not less than three (3) Business Days’ prior written notice of (a) any proposed removal of an Independent Director/Manager, together with a statement as to the reasons for such removal, and (b) the identity of the proposed replacement Independent Director/Manager, together with a certification that such replacement satisfies the requirements set forth in the organizational documents for an Independent Director/Manager;

(vii) if such entity is a limited liability company that is not a Single Member Bankruptcy Remote LLC, has and will have at least one member that has been and will be a Special Purpose Bankruptcy Remote Entity that has been and will be a corporation or limited liability company and such corporation or limited liability company, as applicable, is the managing member of such limited liability company;

(viii) if such entity is a limited liability company, has and will have articles of organization, a certificate of formation and/or an operating agreement, as applicable, providing that (A) such entity will dissolve only upon the bankruptcy of the managing member, (B) the vote of a majority-in-interest of the remaining members is sufficient to continue the life of the limited liability company in the event of such bankruptcy of the managing member and (C) if the vote of a majority-in-interest of the remaining members to continue the life of the limited liability company following the bankruptcy of the managing member is not obtained, the limited liability company may not liquidate the Property without the consent of the applicable Rating Agencies for as long as the Loan is outstanding;

(ix) has not, and without the unanimous consent of all of its partners, directors or members (including the Independent Director/Manager), as applicable, will not, with respect to itself or to any other entity in which it has a direct or indirect legal or beneficial ownership interest (A) file or consent to a bankruptcy, insolvency or reorganization petition or otherwise institute or consent to insolvency proceedings or otherwise seek or consent to any relief under any laws relating to the relief from debts or the protection of debtors generally, (B) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for such entity or for all or any portion of such entity’s properties, (C) make any assignment for the benefit of such entity’s creditors or (D) take any action that might cause such entity to become insolvent;

(x) has remained and will remain solvent and has maintained and will endeavor to maintain adequate capital in light of its contemplated business operations, provided that Gross Income from Operations is sufficient to satisfy same;

(xi) has not failed and will not fail to correct any known misunderstanding regarding the separate identity of such entity;

(xii) has maintained and will maintain its accounts, books and records separate from any other Person and will file its own tax returns (except that Borrower may file or may include its filing as part of a consolidated federal tax return, to the extent required and/or permitted by Applicable Law, provided that there shall be an appropriate notation indicating the separate existence of Borrower and its assets and liabilities);

(xiii) has maintained and will maintain its books, records, resolutions and agreements as official records;

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

(xv) has held and will hold its assets in its own name;

(xvi) has conducted and will conduct its business in its name,

(xvii) has maintained and will maintain its financial statements, accounting records and other entity documents separate from any other Person; provided, however, that Borrower’s assets may be included in a consolidated financial statement of its Affiliates provided that (A) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (B) such assets shall be listed on Borrower’s own separate balance sheet;

(xviii) has paid and will pay its own liabilities, including the salaries of its own employees, out of its own funds and assets;

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

(xx) has maintained and will maintain an arm’s-length relationship with its Affiliates;

(xxi) (a) if such entity owns the Property, has and will have no indebtedness other than Permitted Indebtedness, or (b) if such entity is the SPE Party, has and will have no indebtedness other than unsecured trade payables in the ordinary course of business relating to acting as sole member of Borrower which (1) do not exceed, at any time, $10,000 and (2) are paid within thirty (30) days of the date incurred;

(xxii) has not and will not assume or guarantee or become obligated for the debts of any other Person or hold out its credit as being available to satisfy the obligations of any other Person except for the Loan;

(xxiii) has not and will not acquire obligations or securities of its partners, members or shareholders;

(xxiv) has allocated and will allocate fairly and reasonably shared expenses, including shared office space, and uses separate stationary, invoices and checks;

(xxv) except in connection with the Loan, will not pledge its assets for the benefit of any other Person;

(xxvi) has held itself out and identified itself and will hold itself out and identify itself as a separate and distinct entity under its own name and not as a division or part of any other Person;

(xxvii) has maintained and will maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any other Person;

(xxviii) has not made and will not make loans to any Person;

(xxix) has not identified and will not identify its partners, members or shareholders, or any Affiliate of any of them, as a division or part of it;

(xxx) has not entered into or been a party to, and will not enter into or be a party to, any transaction with its partners, members, shareholders or Affiliates except in the ordinary course of its business and on terms which are intrinsically fair and are no less favorable to it than would be obtained in a comparable arm’s-length transaction with an unrelated third party;

(xxxi) has and will have no obligation to indemnify its partners, officers, directors, members or Special Member, as the case may be, or has such an obligation that is fully subordinated to the Debt and will not constitute a claim against it if cash flow in excess of the amount required to pay the Debt is insufficient to pay such obligation;

(xxxii) will have an express acknowledgment in its organizational documents that Lender is an intended third-party beneficiary of the “special purpose” provisions of such organizational documents; and

(xxxiii) will consider the interests of its creditors in connection with all corporate, partnership or limited liability actions, as applicable.

“Spread” means three and eighty-five hundredths percent (3.85%) per annum.

“Springing Recourse Event” shall have the meaning set forth in Section 10.1 hereof.

“State” means the state, commonwealth or territory of the United States of America in which the Property is located.

“Stated Maturity Date” means January 1, 2023.

“Subaccounts” shall have the meaning set forth in Section 3.1 hereof.

“Tax and Insurance Subaccount” shall have the meaning set forth in Section 3.3 hereof.

“Taxes” means all real estate and personal property taxes, assessments, water rates or sewer rents, maintenance charges, impositions, vault charges and license fees, now or hereafter levied or assessed or imposed against all or part of the Property.

“Term” means the entire term of this Agreement, which shall expire upon repayment in full of the Debt and full performance of each and every obligation to be performed by Borrower pursuant to the Loan Documents.

“Title Company” shall mean Fidelity National Title Insurance Company.

“Title Insurance Policy” means the ALTA mortgagee title insurance policy in the form acceptable to Lender issued with respect to the Property and insuring the Lien of the Security Instrument.

“Toxic Mold” means any toxic mold or fungus at the Property which is of a type (i) that might pose a significant risk to human health or the environment or (ii) that would negatively impact the value of the Property.

“Transfer” means (i) any sale, conveyance, transfer, Lease or assignment, or the entry into any agreement to sell, convey, transfer, lease or assign, whether by law or otherwise, of, on, in or affecting (x) all or part of the Property (including any legal or beneficial direct or indirect interest therein), (y) any direct or indirect interest in Borrower (including any profit interest), or (z) any direct or indirect interest in SPE Party or (ii) any change of Control of Borrower or SPE Party. For the purposes hereof, (i) a Transfer of an interest in Borrower or SPE Party shall be deemed to include (A) if Borrower or SPE Party or controlling shareholder of Borrower or SPE Party is a corporation, the voluntary or involuntary sale, conveyance or transfer of such corporation’s stock (or the stock of any corporation directly or indirectly controlling such corporation by operation of law or otherwise) or the creation or issuance of new stock in one or a series of transactions by which an aggregate of more than ten percent (10%) of such corporation’s stock shall be vested in a party or parties who are not now stockholders or any change in the control of such corporation and (B) if Borrower or SPE Party or controlling shareholder of Borrower or SPE Party is a limited or general partnership, joint venture or limited liability company, the change, removal, resignation or addition of a general partner, managing partner, limited partner, joint venturer or member or the transfer of the interest of any partner, joint venturer or member, or such entity dividing into two (2) or more separate entities and allocating any of such entity's assets, liabilities, rights and/or obligations between or among such entities, and (ii) change of Control of Borrower or SPE Party shall be deemed to have occurred if (A) there is any change in the identity of any individual or entity or any group of individuals or entities who have the right, by virtue of any partnership agreement, articles of incorporation, by-laws, articles of organization, operating agreement or any other agreement, with or without taking any formative action, to cause Borrower (or SPE Party) to take some action or to prevent, restrict or impede Borrower (or SPE Party) from taking some action which, in either case, Borrower (or SPE Party) could take or could refrain from taking were it not for the rights of such individual or entity, or group of individuals or entities or (B) the individual or entity or group of individuals or entities that Control Borrower (and SPE Party) as described in clause (A) ever ceases to own at least no less than 10% of the equity interests (direct or indirect) in Borrower.

“UCC” means the Uniform Commercial Code as in effect in the State, the state in which any of the Accounts are located, or any other State applicable to any collateral for the Loan, as the case may be.

“Underwriter Group” shall have the meaning set forth in Section 9.1.3 hereof.

“Underwriters” shall have the meaning set forth in Section 9.1.3 hereof.

“Underwritten Net Cash Flow” (UNCF) shall be equal to the Property’s operating income minus operating expenses during such period and adjusted as follows:

(i) Operating income will be adjusted: (A) subject to clause (F) hereof, to include only fixed rents based on leases in place for tenants who are in occupancy, open for business and paying rent; (B) to include percentage rent but only to the extent it is determined by Lender to be stabilized and recurring; (C) to exclude rents from temporary or month to month tenants, provided, however, that such income will be included only to the extent it is determined by Lender to be stabilized and recurring; (D) to exclude rents from tenants expiring in the next 90 days (from the date of determination), unless such tenant has renewed or it is determined by Lender in its discretion that such tenant is likely to renew; (E) to exclude rents from tenants operating under bankruptcy protection, unless each such tenant has affirmed its Lease in the subject bankruptcy proceeding; (F) to exclude rents from any tenant which is not in occupancy and operating its business; provided, however, in connection with Lender’s calculation of the Debt Service Coverage Ratio, other than in connection with an extension of the term pursuant to Section 2.9 hereof, rents attributable to any executed Lease which has been approved by Lender in writing (to the extent that Lender’s approval is required pursuant to the terms of this Agreement) shall be included in operating income notwithstanding that the tenant thereunder might not yet be in occupancy and operating its business therein, provided that (a) the subject tenant has irrevocably and unconditionally accepted delivery and possession of its demised premises, (b) the subject tenant has no early termination rights pursuant to its Lease and (c) the subject tenant is irrevocably and unconditionally obligated to commence paying the rent required under its Lease within six (6) months from the date of Lender’s calculation of Underwritten Net Cash Flow; (G) to exclude rents from any tenant which is an affiliate of Borrower; (H) to exclude rents from any tenant which is more than one month delinquent in payment of rent; (I) to mark any above market leases to market rents; (J) to reflect any rent adjustments or cancellation option in any leases; (K) to include reimbursements not in excess of corresponding expense items, based on such trailing 12 month period; (L) to include other income on a case-by-case basis but only to the extent it is determined by Lender to be both stabilized and recurring; and (M) a vacancy and credit loss allowance equal to the greater of (1) the actual weighted average vacancy and/or credit loss for all of the Properties, and (2) the market weighted average vacancy and/or credit loss for all of the Properties; and

(ii) Operating expenses will be adjusted to reflect: (A) the greater of (1) the actual expenses for the trailing 12 month period (except real estate taxes, ground rent (if applicable), insurance, and utilities inflated by 3%, which will be included at their stabilized, recurring levels), and (2) the average actual annual expenses over the past three years but excluding any non-recurring items and capital expenses; (B) a normalized allowance for costs of free rent and downtime; (C) tenant improvement and leasing commissions equal to $0.82 per occupied square foot per annum; (D) a reserve for capital expenses equal to at least $0.20 per square foot of rentable space per annum; (E) a management fee equal to the greater of the actual management fee or 3% of effective gross income; and (F) other adjustments as determined by Lender in its sole but reasonable discretion consistent with its due diligence findings and prevailing market conditions.

In determining UNCF, all pro forma adjustments to revenue and expenses shall be approved by Lender in its sole but reasonable discretion.

“Welfare Plan” means an employee welfare benefit plan, as defined in Section 3(1) of ERISA.

“West Broad SSDS Installation Work” shall mean the installation of Sub-Slab Depressurization Systems at the West Broad Property (identified on Schedule 5) under the premises currently occupied by Yen Ching Restaurant and the premises previously occupied by $1.25 Cleaners, as recommended by Lender’s environmental consultant and reasonably approved by Lender, as more particularly set forth in that certain Phase II Environmental Site Assessment dated December 19, 2019, prepared by EBI Consulting (EBI Project No. 1219000407), with respect to the West Broad Property.

“West Broad SSDS Subaccount” shall have the meaning set forth in Section 3.14 hereof.

“Yield Maintenance Date” means the twenty-fourth (24th) Payment Date after the closing of the Loan; provided that if Lender elects to change the Payment Date set forth herein on the date hereof as provided in the definition of “Payment Date”, then for all purposes of this Agreement the Yield Maintenance Date shall be and become the same day of the month and year as the day in the month to which Lender elects to change the Payment Date.

“Yield Maintenance Premium” means, with respect to any payment or prepayment of Principal (or acceleration of the Loan) on or before the Yield Maintenance Date, the aggregate amount of interest that would have been due to Lender with respect to the amount of Principal being prepaid or repaid, for the period from and after the date of the prepayment to and including the Yield Maintenance Date, assuming the Loan had not been prepaid, at the Interest Rate as of the date of the prepayment, it being expressly understood and agreed that the payment of the Yield Maintenance Premium (if and when required pursuant to the terms of the Note and this Agreement) shall be in addition to the payment of any Exit Fee applicable to any payment or prepayment of Principal (or acceleration of the Loan).

Exhibit 10.2

BROAD STREET BIG FIRST OP LLC
(a Delaware Limited Liability Company)

AMENDED AND RESTATED OPERATING AGREEMENT

THE SECURITIES REPRESENTED BY THE INTERESTS OF THE MEMBERS HAVE BEEN ISSUED PURSUANT TO A CLAIM OF EXEMPTION FROM THE REGISTRATION OR QUALIFICATION PROVISIONS OF THE SECURITIES ACT OF 1933, AS AMENDED, AND/OR THE SECURITIES OR "BLUE SKY" LAWS OF CERTAIN STATES AND, ACCORDINGLY, MAY NOT BE SOLD OR TRANSFERRED WITHOUT COMPLIANCE WITH THE REGISTRATION OR QUALIFICATION PROVISIONS OF THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE SECURITIES ACT OR "BLUE SKY" LAW OR APPLICABLE EXEMPTIONS THEREFROM AND THE RESTRICTIONS ON TRANSFER CONTAINED IN THIS AGREEMENT.

TABLE OF CONTENTS

		Page

SECTION I	DEFINED TERMS	1
SECTION II	FORMATION OF COMPANY; NAME; PURPOSES; TERM; STATUTORY COMPLIANCE; AGREEMENT AND INCONSISTENCIES WITH ACT	2
2.1	Formation of Company; Name	2
2.2	Purposes of Company; Powers	2
2.3	Term	2
2.4	Statutory Compliance	2
2.5	Agreement; Effect of Inconsistencies with Act	2
SECTION III	CAPITAL CONTRIBUTIONS/ADDITIONAL FUNDS; IDENTITY OF MEMBERS/CLASSES/MEMBERS' PERCENTAGES; ADMISSION OF ADDITIONAL MEMBERS; LIMITATION OF LIABILITY; REPRESENTATIONS AND WARRANTIES	3
3.1	Capital Contributions	3
3.2	Additional Funds.	5
3.3	Identity of Members; Classes; Percentages	6
3.4	Admission of Additional Members; Withdrawal of Initial Member	7
3.5	Limitation of Liability	7
3.6	Representations and Warranties	7
SECTION IV	DISTRIBUTIONS; PARTIAL RELEASES; ALLOCATIONS OF PROFITS/LOSSES; REQUIRED TAX ADJUSTMENTS/ALLOCATIONS	11
4.1	Distributions of Distributable Cash	11
4.2	Mandatory Redemption of Class A Member Equity; Partial Releases	13
4.3	Allocations of Net Profits and Net Losses	15
4.4	Special Allocations to Capital Accounts and Certain Other Income Tax Allocations	15
4.5	Allocation of Net Profits or Net Losses from Capital Transactions	17
4.6	Intentionally Omitted	17
4.7	Other Tax Allocation and Related Tax Provisions	17
4.8	Income Tax Treatment of the Company and the Class A Member’s Interest	18
4.9	Operating Account	18

-i-

TABLE OF CONTENTS

(continued)

		Page

4.10	Application of Account Funds after a Changeover Event	19
4.11	Accounts Generally	19
SECTION V	MANAGEMENT	19
5.1	Role of Manager	19
5.2	Major Decisions	19
5.3	Intentionally Omitted	20
5.4	Agreements with Affiliates of Class B Member	20
5.5	Duties of Manager	21
5.6	Removal of Manager	25
5.7	Right of First Offer on Future Refinancing	26
5.8	Covenants Concerning MVB Bank and Eagle Bank	27
5.9	Approved Budget	27
5.10	Other Disclosures	28
5.11	Power of Attorney.	29
5.12	Management Fees; Reimbursement of Expenses; Other Fees	29
5.13	Nonliability of Manager	30
5.14	Indemnification	30
5.15	Outside Interests/Interested Party Transactions	30
SECTION VI	ADMINISTRATIVE PROVISIONS	31
6.1	Principal Office and Registered Agent	31
6.2	Books and Records	31
6.3	Bank Accounts	31
6.4	Monthly/Quarterly Statements.	32
6.5	Annual Reports.	32
6.6	Reports under Mortgage Loan Documents.	32
6.7	Reports under Property Management Agreement.	33
6.8	Information Requests.	33
6.9	Class A Member’s Right to Examine.	33
6.10	Amendment of Agreement	33
6.11	Title to Company Property	33

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TABLE OF CONTENTS

(continued)

		Page

6.12	Subordination of Indemnification Provisions	33
SECTION VII	TAX PROVISIONS	33
7.1	Capital Accounts	33
7.2	Elections	34
7.3	Taxes of Taxing Jurisdictions	34
7.4	Partnership Representative	34
SECTION VIII	RESTRICTIONS ON TRANSFER AND WITHDRAWAL	35
8.1	General	35
8.2	Members of Record	35
8.3	Nature of Restrictions	35
8.4	Permitted Transfers; Right of First Refusal; Conditions/Procedure for Permitted Transfers; Admission of Substitute Members	35
SECTION IX	DISSOLUTION OF COMPANY	38
9.1	Events Resulting in Dissolution.	38
9.2	Last Remaining Member	38
9.3	Effect of Bankruptcy	38
9.4	Winding Up	38
9.5	Disposition of Proceeds	39
9.6	Final Statements	39
9.7	Certificate of Cancellation	39
SECTION X	RIGHT OF FIRST OFFER OF CLASS A MEMBERSHIP INTEREST	39
10.1	First Offer Procedures	39
SECTION XI	PROCEDURES FOR SALE OF PROPERTY	41
11.1	Sale of the Property After Redemption Date or Upon a Changeover Event	41
11.2	Sale of Property After the Redemption Date or a Changeover Event	41
11.3	Sale of Property Approved as Major Decision.	42
11.4	Sale and Closing Documents	42
11.5	Sales Proceeds	43
SECTION XII	MISCELLANEOUS PROVISIONS	44
12.1	No Agency	44

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TABLE OF CONTENTS

(continued)

		Page

12.2	Integration	44
12.3	Construction	44
12.4	Burden, Benefit	44
12.5	Third Party Reliance	44
12.6	No Partnership Intended for Nontax Purposes	44
12.7	Manner of Execution	44
12.8	Costs of Enforcement	44
12.9	Consent to Jurisdiction; Venue	45
12.10	Waiver of Right to Trial by Jury	45
12.11	Waiver of Action for Partition	45
12.12	Notices	45
12.13	Further Action/Estoppel Certificates	45
12.14	Time	45
12.15	Reference to Members/Assignees	46
12.16	Publicity	46

-iv-

EXHIBITS

Exhibit A – Glossary of Certain Defined Terms

Exhibit B - SPE Provisions

Exhibit C – Holding Companies

Exhibit D – Property Owners and Properties

Exhibit E – Basis Mortgage Loan Properties

Exhibit F – Major Decisions

Exhibit G – Approved Budget

Exhibit H – Form of Assignment and Assumption Agreement

Exhibit I – Deferred Maintenance/Required Repairs

Exhibit J – Management and Leasing Agreements

Exhibit K – Permitted Distributees

-i-

___________________________________________________________

AMENDED AND RESTATED OPERATING AGREEMENT OF
BROAD STREET BIG FIRST OP LLC
___________________________________________________________

THIS AMENDED AND RESTATED OPERATING AGREEMENT, is entered into and shall become effective as of December 27, 2019 (the “Effective Date”) by and among (i) Broad Street BIG First OP LLC (the "Company") (ii) BIG BSP Investments, LLC (the “Class A Member”), (iii) BROAD STREET OPERATING PARTNERSHIP, L.P. (the “Class B Member”) and (iv) any Persons hereafter admitted to the Company as Substitute Member(s) in accordance with the express terms hereof.

PRELIMINARY STATEMENT

A. Michael Jacoby organized and caused the Company to be formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with DDOS on August 20, 2019.

B. The Class B Member entered into that certain Limited Liability Company Agreement of Broad Street BIG First OP LLC, dated as of October 4, 2019 (the “Original Operating Agreement”).

C. The parties hereto desire to enter into this Amended and Restated Operating Agreement in order to admit the Class A Member as a Member of the Company and to restated the Original Operating Agreement in its entirety, to set forth herein all of their understandings and commitments with respect to the Company, the management and regulation of its affairs and the relationship among the Company and its Members, and intend that this Agreement shall serve as the operating agreement for the Company as permitted by the Act.

D. The Company was formed for the specific purpose described in Section 2.2 of this Agreement.

E. Prior to the Effective Date, the Company has not conducted any business.

NOW, THEREFORE, the undersigned hereby agree that (i) the Class A Member is hereby admitted as a Member of the Company, and (ii) the Original Operating Agreement is restated in its entirety as follows:

SECTION I
DEFINED TERMS

Some of the terms used in this Agreement with the initial letter(s) capitalized shall have the meaning as provided in the Glossary of Certain Defined Terms attached hereto as Exhibit A (the “Glossary"), unless the context otherwise requires. Some of the terms used in this Agreement with their initial letter(s) capitalized that are not defined in the Glossary shall have the meaning assigned to such terms elsewhere in this Agreement, unless the context otherwise requires. The singular shall include the plural and vice versa, the use of any gender shall be deemed to include any other and any reference to a Person shall be deemed to include reference to a Person other than an individual.

SECTION II
FORMATION OF COMPANY; NAME; PURPOSES; TERM;
STATUTORY COMPLIANCE; AGREEMENT AND INCONSISTENCIES WITH ACT

2.1 Formation of Company; Name. The Members hereby acknowledge that the Company was formed as a Delaware limited liability company under the name "Broad Street BIG First OP LLC" on August 20, 2019 pursuant to the provisions of the Act and hereby ratify, authorize and approve the filing of the original Articles with DDOS, and all other actions taken related thereto. The Manager may change the name of the Company from time to time in its discretion, provided it gives prompt notice of any such change to all Members.

2.2 Purposes of Company; Powers. The Company has been formed solely to (A) acquire and own (i) membership interests in the limited liability companies listed in Exhibit C attached hereto (each, a “Holding Company” and collectively, the “Holding Companies”) and (ii) membership interests, either directly or indirectly through the Holding Companies, in the limited liability companies listed in Exhibit D attached hereto (each, a “Property Owner” and collectively, the “Property Owners”). The Property Owners own that certain real property, together with all improvements located thereon, at the locations specified in Exhibit D attached hereto, and all fixtures, equipment, furnishings, supplies and other property used in connection therewith (each, a "Property"; the term “Property” shall mean either an individual Property or all of the Properties collectively, as the context may require), and (B) perform such activities as are necessary, incidental or appropriate in connection therewith.

2.3 Term. The term of the Company commenced upon the filing of the original Articles with DDOS and shall continue on a perpetual basis, unless sooner terminated in accordance with the terms hereof or pursuant to the provisions of the Act.

2.4 Statutory Compliance. The Company shall exist under and be governed by the laws of the State of Delaware, including the Act. The Manager or its designee(s) shall do all things reasonably necessary to perfect and maintain the Company as a limited liability company pursuant to the laws of the State of Delaware, including the Act.

2.5 Agreement; Effect of Inconsistencies with Act. For and in consideration of the mutual covenants herein contained and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Members hereby agree to the terms and conditions of this Agreement, as it may from time to time be amended and/or restated according to its terms. It is the express intention of the parties hereto that this Agreement shall be the sole source of agreement of the parties, and, except to the extent a provision of this Agreement expressly incorporates federal income tax rules by reference to sections of the Code or the Treasury Regulations which is expressly prohibited or ineffective under the Act, this Agreement shall govern, even when inconsistent with, or different than, the provisions of the Act or any other law or rule. To the extent any provision of this Agreement is prohibited or ineffective under the Act, this Agreement shall be considered amended to the smallest degree possible in order to make the Agreement effective under the Act. In the event the Act is subsequently amended or interpreted in such a way to make any provision of this Agreement valid which provision was formerly determined to be invalid under the Act before such amendment or interpretation, such original provision shall be considered to be valid from the effective date of such amendment or interpretation. The Members hereby agree that each Member and Manager shall be entitled to rely on the provisions of this Agreement, and no Member or Manager shall be liable to the Company or to any Member for any action or refusal to act taken in good faith reliance on the terms of this Agreement. The Members and the Company hereby agree that the duties and obligations imposed on the Members and Manager shall be those set forth in this Agreement, which Agreement is intended to govern the relationship among the Company, the Members and the Manager, notwithstanding any provision of the Act or common law to the contrary. Notwithstanding, this Agreement is expressly subject to, and shall be controlled by, the Articles in the event of any inconsistency or variance between the terms of this Agreement and the Articles.

SECTION III
CAPITAL CONTRIBUTIONS/ADDITIONAL FUNDS; IDENTITY OF

MEMBERS/CLASSES/MEMBERS' PERCENTAGES; ADMISSION OF ADDITIONAL MEMBERS;

LIMITATION OF LIABILITY; REPRESENTATIONS AND WARRANTIES

3.1 Capital Contributions.

A. The initial contributions to the capital of the Company shall be:

(i) The Class A Member shall contribute the aggregate sum of up to Ten Million Seven Hundred Eleven Thousand Four Hundred Thirty-Three and 00/100 Dollars ($10,711,433.00) to the capital of the Company (such amount, or the amount thereof which shall be contributed by the Class A Member from time to time, the “Class A Member Capital Contribution”). The Class A Member shall receive in the aggregate a one percent (1.0%) Members' Percentage for its contribution. The Class A Member Capital Contribution shall be made as follows:

(A)

$6,901,196.00 is being contributed by the Class A Member on the date hereof.

(B)

Within ninety (90) days after the Effective Date, at one time only, the Class A Member shall contribute the portion of the Class A Member Capital Contribution attributable to the Allocated Investment Amounts attributable to the Property owned by BSV Highlandtown LLC and/or the Property owned by BSV Spotswood LLC upon the satisfaction of all of the following conditions: (1) a consent and recognition agreement, in form and substance acceptable to the Class A Member in its sole discretion, shall have been obtained from the Mortgage Lender of the applicable Property; (2) at the time of the disbursement, no Changeover Event shall have occurred and be continuing, nor shall any event have occurred which with the giving of notice and/or the passage of time would constitute a Changeover Event, nor shall any claim been threatened which, if valid, would constitute a Changeover Event; and (3) There shall have been no material adverse change with respect to market conditions for any of the Properties or in the financial condition, operations or business of the Company, the Sponsor Principal, any of the Holding Companies or any of the Property Owners, as determined by the Class A Member in its sole discretion. The Class B Member agrees to make such changes (other than to economic terms) to this Agreement as the Mortgage Lender of the applicable Property may request, and it shall be a further condition to the disbursement by the Class A Member under this clause (B) that such changes are approved by all other Mortgage Lenders of the Non-Basis Loan Properties. On the date hereof, the Class B Member is paying to the Class A Member a commitment fee in the amount of $129,841.55 for the additional disbursement under this clause (B). Upon the making of such disbursement, the Class A Member shall refund to the Class B Member the amount of $1,442.68 (the “Per-Diem Amount”) multiplied by the number of days in the period beginning on the day after the date of the disbursement and ending on the date which is ninety (90) days after the Effective Date. If the Class A Member, in its sole discretion, agrees to extend such ninety (90)-day period for an additional period of time, then as a condition to the extension and prior to the commencement of the extension period, the Class B Member shall pay to the Class A Member an additional commitment fee equal to the Per-Diem Amount multiplied by the number of days in the extension period (and upon the making of the disbursement the Class A Member shall refund to the Class B Member an amount equal to the Per-Diem Amount multiplied by the number of days in the period beginning on the day after the date of the disbursement and ending on the last day of the extension period). In connection with the additional disbursement under this clause (B), the Class B Member shall pay to the Class A Member all of the Class A Member’s costs and expenses in connection therewith (including without limitation attorneys’ fees and expenses), and shall update any applicable opinions of counsel and cause the Guaranty to be reaffirmed by the guarantor thereunder.

(C)

The amount of the Class A Member Capital Contribution includes the amount of $63,382.00 for Approved Leasing Expenses for the Property owned by BSV Avondale LLC and (ii) the amount of $37,096.00 for Approved Leasing Expenses for the Property owned by BSV Patrick Street LLC (such amounts collectively, the “Avondale/Vista Amount”). All or portions of the balance shall be contributed by the Class A Member upon receipt of a written request from the Manager, provided that the following conditions are satisfied: (1) at the time of the request, no Changeover Event shall have occurred and be continuing, nor shall any event have occurred which with the giving of notice and/or the passage of time would constitute a Changeover Event, nor shall any claim been threatened which, if valid, would constitute a Changeover Event and (2) with respect to the Property owned by BSV Avondale LLC or the Property owned by BSV Patrick Street LLC, as applicable, the conditions set forth in Section 2.2.1, clauses (b), (d), (e) (as to construction work), (f) (as to construction work) and (g) of the Basis Loan Agreement, which, together with accompanying definitions, are incorporated herein by reference, with the term “Lender” meaning the Class A Member and the term “Borrower” meaning the Class B Member (the “Avondale/Vista Funding Conditions”). To the extent that the Avondale/Vista Amount is not contributed to the Company on or before the first anniversary of the date hereof, then the Class A Member shall have the right, in its sole discretion, to contribute the remaining balance of the Avondale/Vista Amount not contributed as of such date, in which event the Company shall deposit the amount of such remaining balance into a reserve account controlled by the Class A Member (the “Leasing Reserve Account”), which amount shall be held and disbursed in accordance with this Section 3.1A(i)(C). The Class B Member shall have the right to request funds from the Leasing Reserve Account upon satisfying the Avondale/Vista Funding Conditions. Notwithstanding anything to the contrary contained in this Section 3.1A(i)(C), upon the occurrence and during the continuance of a Changeover Event, the Class A Member may apply all amounts deposited into the Leasing Reserve Account in such manner as the Class A Member shall determine in its sole and absolute discretion. In connection with any funding under this clause (C), the Class B Member shall pay to the Class A Member all of the Class A Member’s costs and expenses in connection therewith (including without limitation attorneys’ fees and expenses).

(ii) The Class B Member shall contribute all of the interests in the Property Owners and the Holding Companies other than the interests in BSV Highlandtown Investors LLC and BSV Spotswood Investors LLC on the date hereof. The interests in either or both of such Holding Companies shall be contributed to the Company if and when the conditions set forth in clause (B) of Section 3.1A(i) are satisfied. The Class B Member shall receive in the aggregate a ninety-nine percent (99%) Membership Interest for its contributions of its direct or indirect interests in the Properties.

(iii) All initial cash Capital Contributions shall be payable by certified check or federal funds wire transfer to the order of (or to an account designated by) the Company on or before the Effective Date.

B. No Member shall have any further liability to contribute any money or property to the Company, or to advance or loan any funds to the Company, except as expressly provided in this Section 3.1.

C. The Class B Member shall not have the right to withdraw, resign or retire from the Company or to receive any part of that Member's Capital Contribution(s) prior to the dissolution of the Company and the winding up of its business, provided that interim distributions to the Members prior to the dissolution and winding up of the Company where permitted under this Agreement may represent (in whole or in part) a return of such Capital Contributions. No Member shall be entitled to demand or receive property in lieu of cash in return for that Member's Capital Contribution(s).

3.2 Additional Funds.

A. The Members recognize that, if funds are not otherwise available, the Company may require the Class B Member to make additional Capital Contributions in order (i) to pay operating costs of the Company, (ii) to avoid or cure a monetary or a non-monetary default under any Mortgage Loan Documents or any agreement evidencing other indebtedness of the Company or any Subsidiary of the Company or (iii) to fund reserve accounts or make any payments required to be made by the Company or the Class B Member pursuant to Section 4.9 (individually or collectively, “Required Costs”).

B. If the Company or any Subsidiary still does not have sufficient funds to pay Required Costs after the Company has taken the steps described in Section 3.2.A. on a timely basis, the Class A Member may require in writing that the Class B Member contribute additional capital to the Company, which capital shall be treated in the same manner as initial common equity. The Class B Member shall make its additional Capital Contribution within ten (10) Business Days (or such shorter time period as may be appropriate in connection with additional Capital Contributions to be used for the payment of Emergency Costs, but in no event less than five (5) Business Days) after the date of receipt of said written notice from the Class A Member of the request for such additional Capital Contribution, which notice, if relating to a request for Required Costs, shall include a reasonably-detailed written description of the Required Costs required to be paid, together with supporting information and data which are reasonably available at such time. For the avoidance of doubt and notwithstanding anything to the contrary contained herein, the delivery by the Class A Member of such notice requesting such additional Capital Contributions shall be automatically deemed to be the Class A Member's approval of such Required Cost and any agreement, lease or other contract related thereto. The failure of the Class B Member to make an additional Capital Contribution pursuant to this Section 3.2.B. shall give the Class A Member the right to choose one of the alternatives described in Section 3.2.C. below. Any funds required to be provided by the Class B Member under this Agreement shall be provided either as Capital Contributions or as a loan (a “Class B Member Loan”), provided, however, that the terms and conditions of Class B Member Loans shall be reasonably acceptable to the Class A Member and the aggregate principal amount of Class B Member Loans shall not exceed $500,000.00 at any time. A Class B Member Loan shall be junior and subordinate in all respects to the Class A Membership Interest and to all rights of the Class A Member hereunder, and payments of interest or principal on a Class B Member Loan will be payable only from Distributable Cash following the distributions to the Class A Member under Section 4.1C(i)-(iii) or from Capital Proceeds following the distributions to the Class A Member under Section 4.1D(i)-(vi) or Section 4.1E(i)-(iii). No such payments of interest or principal may be made after the occurrence and during the continuance of a Distribution Suspension Event.

C. If the Class B Member does not fund the requested additional Capital Contributions or make a Class B Member Loan for the required amount in accordance with Section 3.2.B. within the time specified therein, then the Class A Member may elect one of the following options by written notice to the Company and the Class B Member:

(i) The Class A Member may elect, unless prohibited by any Mortgage Loan Documents, to lend the amount requested pursuant to Section 3.2.B. to the Company (a “Member Loan”) on a non-recourse basis with recourse solely to the assets of the Company. Each Member Loan shall bear interest at a rate equal to the lesser of (a) the Enhanced Class A Return Rate and (ii) the maximum rate of interest permitted by applicable law. All Member Loans, together with any interest accrued thereon, shall be paid by the Company prior to any distribution pursuant to Section IV. All payments on any Member Loan shall be applied first to accrued interest, then to unpaid principal. Member Loans shall be repaid by the Company in the order that they were made to the Company, with the Member Loans that were made earliest in time being repaid first.

(ii) The Class A Member may elect to make the additional Capital Contribution to the Company as an additional Capital Contribution for the amount required pursuant to Section 3.2.B. If the Class A Member makes such additional Capital Contribution pursuant to this Section 3.2.C(ii), then the Class A Member shall receive distributions with respect to such additional Capital Contribution as described in Section 4.1 before any distributions are made with respect to Capital Contributions made by the Members pursuant to Sections 3.1 and 3.2.A.

(iii) The Class A Member may elect to cancel the requirement for an additional Capital Contribution made pursuant to Section 3.2.B. In order to cancel the requirement for additional Capital Contributions, the Class A Member shall deliver written notice of this election to the Class B Member. The Class B Member shall not thereafter have any continuing obligation to fund any additional Capital Contributions covered by the cancelled request pursuant to Section 3.2.B. unless and until the Class A Member makes a new demand, which may list some or all of the items covered by the cancelled request.

3.3 Identity of Members; Classes; Percentages.

A. The names, addresses and Percentages of the Members (as they shall be constituted from time to time) shall be as reflected on the Schedule. Upon any change in the Members or any other information pertaining to the Members reflected in the Schedule, including any Transfer of an Interest if permitted under the provisions of Section VIII, the Manager is authorized to amend the Schedule to update the information reflected thereon without requirement that it first obtain the prior consent or approval of any other Member to such amendment, provided a copy of such amendment shall be provided to each other Member.

B. The Members shall be comprised of two (2) classes, being the Class A Member and the Class B Member. Except as otherwise provided to the contrary in the other provisions of this Agreement, including provisions related to the management of the Company and certain preferences as to distributions to the Members, the respective rights and obligations of the Members shall be identical in all respects.

C. Each Member shall have a Percentage in the Company which shall be used for various purposes under this Agreement and which will be expressed from time to time as a stated or fixed fraction or percentage of the Percentages of all Members. Increases or decreases in the Capital Account of a Member from time to time shall not affect such Member's Percentage. The initial Percentages of the Members are reflected on the Schedule. Upon any Transfer of an Interest if permitted under the terms of this Agreement, the transferee (whether or not he/she/it becomes a Substitute Member) shall succeed to the Percentage of the transferor to the extent of the Interest so transferred.

3.4 Admission of Additional Members; Withdrawal of Initial Member.

A. The Persons signing this Agreement as the Members shall be deemed admitted to the Company as Members for all purposes effective on the Effective Date. The original Member(s) shall be deemed to have withdrawn as the initial Member(s) and Manager upon admission of the other Members as provided in the preceding sentence without further act, provided the initial Member(s) shall not be entitled to any payment or distribution from the Company as a result of such withdrawal other than as expressly provided under this Section III, and each of the initial Members shall be released from any further liability or obligation to the Company in the capacity as a former Member.

B. After the Effective Date, no additional Members shall be admitted to the Company without the prior written unanimous consent of the Class A Member and the Class B Member.

3.5 Limitation of Liability. No Member or Manager, nor any of its respective Affiliates, shall be personally liable for any debts, liabilities or losses of the Company, except as otherwise required by law. The failure of the Company to observe any formalities or requirements relating to either the exercise of its powers or the pursuance of its business or affairs under the Agreement or the Act shall not be grounds for imposing personal liability on the Members or any Manager of the Company or their respective Affiliates.

3.6 Representations and Warranties.

A. The Class B Member hereby represents and warrants to the Class A Member, the Company and each other Member that:

(a)

If such Member is an Entity, it is duly organized or duly formed, validly existing, and in good standing under the laws of the jurisdiction of its place of incorporation or formation and has the full legal power and authority to own its property and carry on its business as owned and carried on at the date hereof and as contemplated hereby.

(b)

Such Member has the individual or other legal power and authority to execute and deliver this Agreement and to perform his/her/its obligations hereunder and, if such Member is an Entity, the execution, delivery, and performance of this Agreement has been duly authorized by all necessary action on the part of such Entity, and this Agreement constitutes the legal, valid and binding obligation of such Member according to its terms.

(c)

The Member has acquired his/her/its Interest in the Company for the Member's own account as an investment and without an intent to distribute, subdivide or fractionalize the Interest.

(d)

The Member acknowledges that the Interests of the Members have not been registered under the Securities Act of 1933 or any state securities laws, and may not be resold or transferred by the Member without appropriate registration or the availability of an exemption from such requirements.

(e)

The Member has acquired his/her/its Interest based upon his/her/its own investigation and such Member is a sophisticated investor possessing an expertise in analyzing the benefits and risks associated with acquiring investments that are similar to the acquisition of his/her/its Interest in the Company. The Member acknowledges that it has been provided access to personnel, books, records and other information relating to the Properties and the acquisition of its interest that it has requested. The Member acknowledges that no other Member has made any representation or warranty as to the Company, the Properties or any other matter with respect to the transaction contemplated hereby, except as expressly set forth in this Agreement.

(f)

Neither such Member nor any of his/her/its Affiliates is, nor will the Company as a result of such Member holding an Interest in the Company be, an "investment company" as defined in, or subject to regulation under, the Investment Company Act of 1940. Neither such Member nor any of his/her/its Affiliates is, nor will the Company as a result of such Member holding an Interest in the Company be, a "holding company," "an affiliate of a holding company," or a "subsidiary of a holding company" as defined in, or subject to regulation under, the Public Utility Holding Company Act of 1935.

(g)

The Member is a "United States" person as such term is defined under Code Section 7701(a)(30) and the Treasury Regulations promulgated thereunder and is not subject to foreign person income tax withholding under Code Section 1445 and the Treasury Regulations promulgated thereunder.

(h)

Each of the Class B Member and Sponsor Principal is in compliance with all applicable anti-money laundering and anti-terrorist laws, regulations, rules, executive orders and government guidance, including the reporting, record keeping and compliance requirements of the Bank Secrecy Act (“BSA”), as amended by The International Money Laundering Abatement and Financial Anti-Terrorism Act of 2001, Title III of the USA PATRIOT Act (the “Patriot Act”), and other authorizing statutes, executive orders and regulations administered by OFAC, and related Securities and Exchange Commission, SRO or other agency rules and regulations, and has policies, procedures, internal controls and systems that are reasonably designed to ensure such compliance.

(i)

None of the Class B Member, Sponsor Principal or any of their respective Affiliates nor any Person Controlled by the Class B Member, or Sponsor Principal, nor any Person who owns a Controlling interest in or otherwise Controls the Class B Member, nor any Person for whom the Class B Member is acting as agent or nominee in connection with this investment, is a country, territory, Person, organization, or entity named on an OFAC List, nor is a prohibited country, territory, Person, organization, or entity under any economic sanctions program administered or maintained by OFAC.

(j)

None of the Class B Member and/or Sponsor Principal is a Plan and none of the assets of the Class B Member or Sponsor Principal constitutes or will constitute, by virtue of the application of 29 C.F.R. §2510.3-101(f) as modified by section 3(42) of ERISA, “Plan Assets” of one or more Plans. In addition, (a) neither the Class B Member nor Sponsor Principal is a “governmental plan” within the meaning of Section 3(32) of ERISA and (b) transactions by or with any of the parties hereto are not subject to State statutes regulating investment of, and fiduciary obligations with respect to, governmental plans similar to the provisions of Section 406 of ERISA or Section 4975 of the Code currently in effect, which prohibit or otherwise restrict the transactions contemplated by this Agreement.

(k)

The Class B Member is not (i) a Senior Foreign Political Figure, or an Immediate Family Member or a Close Associate of a Senior Foreign Political Figure, or (ii) Controlled by a Senior Foreign Political Figure, or an Immediate Family Member or a Close Associate of a Senior Foreign Political Figure, and none of the direct or indirect owners of the Class B Member (other than any owners of any interest(s) in a publicly-traded entity) is a Senior Foreign Political Figure or an Immediate Family Member or a Close Associate of a Senior Foreign Political Figure.

(l)

In connection with the entry into this Agreement and the making of the Class A Member Capital Contribution, none of the Class B Member, the Sponsor Principal or any officer, director, employee or Affiliate of the Class B Member or Sponsor Principal will, directly or indirectly, receive any of the distributions designated for those Persons designated as “Class A Members” on Exhibit K hereto.

B. The Sponsor Principal, by executing or joining in this Agreement, hereby represents and warrants to each other Member that:

(a) All information, documents and other materials provided by the Sponsor Principal to the Class A Member and/or their respective Affiliates, employees, attorneys, agents or consultants in connection with the formation of and equity investment in the Company and the acquisition and financing of the Property are complete and accurate in all material respects. There is no fact presently known to any Sponsor Principal which has not been disclosed to the Class A Member which materially and adversely affects, or might materially and adversely affect, the Property or the business, operations or condition (financial or otherwise) of the Company.

(b) All financial data, including, without limitation, the statements of cash flow and income and operating expenses, that have been delivered to the Class A Member in respect of the Company, a the Holding Companies, the Property Owners, the Sponsor Principal and the Property (i) are true, complete and correct in all material respects, (ii) accurately represent the financial condition of the Company, the Sponsor Principal and the Property, as applicable, as of the date of such reports, and (iii) have been prepared in accordance with the Accounting Method throughout the periods covered, except as disclosed therein. Except as expressly permitted by this Agreement, the Sponsor Principal does not have any contingent liabilities, liabilities for taxes, unusual forward or long-term commitments or unrealized or anticipated losses from any unfavorable commitments that are known to the Sponsor Principal and reasonably likely to have a materially adverse effect on the Property or the operation of the Property as a retail shopping center, except as referred to or reflected in said financial statements. Since the date of such financial statements, there has been no material adverse change in the financial condition, operations or business of the Company, the Sponsor Principal, a Holding Company or a Property Owner from that set forth in said financial statements.

(c) All information submitted by the Sponsor Principal to the Class A Member and in all financial statements, rent rolls, reports, certificates and other documents submitted in connection with the Mortgage Loan or in satisfaction of the terms thereof and all statements of fact made by the Sponsor Principal in this Agreement or in any other Mortgage Loan Document, are accurate, complete and correct in all material respects. There has been no material adverse change in any condition, fact, circumstance or event that would make any such information inaccurate, incomplete or otherwise misleading in any material respect or that otherwise materially and adversely affects or might materially and adversely affect the use, operation or value of the Property or the business operations or the financial condition of Sponsor Principal or any Property Owner or Holding Company. The Sponsor Principal has disclosed to the Class A Member all material facts and have not failed to disclose any material fact that could cause any information described in this Section 3.6 or any representation or warranty made herein to be materially misleading.

(d) The Sponsor Principal has reviewed the representations and warranties made by, and covenants of, the Company to and for the benefit of Mortgage Lender contained in the Mortgage Loan Documents and such representations and warranties are true and correct in all material respects.

C. The Class A Member, its executing or joining in this Agreement, hereby represents and warrants to each other Member that:

(a) It is duly organized or duly formed, validly existing, and in good standing under the laws of the jurisdiction of its place of incorporation or formation and has the full legal power and authority to own its property and carry on its business as owned and carried on at the date hereof and as contemplated hereby.

(b) Such Member has the legal power and authority to execute and deliver this Agreement and to perform its obligations hereunder and the execution, delivery, and performance of this Agreement has been duly authorized by all necessary action on the part of such Entity, and this Agreement constitutes the legal, valid and binding obligation of such Member according to its terms.

(c) The Member is acquiring its Interest in the Company for the Member's own account as an investment and without an intent to distribute, subdivide or fractionalize the Interest.

(d) The Member acknowledges that the Interests of the Members have not been registered under the Securities Act of 1933 or any state securities laws, and may not be resold or transferred by the Member without appropriate registration or the availability of an exemption from such requirements.

(e) The Member is acquiring its Interest based upon its own investigation and such Member is a sophisticated investor possessing an expertise in analyzing the benefits and risks associated with acquiring investments that are similar to the acquisition of its Interest in the Company. The Member acknowledges that it has been provided adequate access to personnel, books, records and other information relating to the Properties and the acquisition of its Interest. The Member acknowledges that no other Member has made any representation or warranty as to the Company, the Properties or any other matter, except as expressly set forth in this Agreement.

(f) Neither such Member nor any of its Affiliates is, nor will the Company as a result of such Member holding an Interest in the Company be, an "investment company" as defined in, or subject to regulation under, the Investment Company Act of 1940. Neither such Member nor any of its Affiliates is, nor will the Company as a result of such Member holding an Interest in the Company be, a "holding company," "an affiliate of a holding company," or a "subsidiary of a holding company" as defined in, or subject to regulation under, the Public Utility Holding Company Act of 1935.

(g) The Member is a "United States" person as such term is defined under Code Section 7701(a)(30) and the Treasury Regulations promulgated thereunder and is not subject to foreign person income tax withholding under Code Section 1445 and the Treasury Regulations promulgated thereunder.

Each of the representations and warranties made by a Member under this Section 3.6. shall be deemed made as of the Effective Date and at all times thereafter as it is intended that each such representation and warranty shall be continuing in nature throughout the existence of the Company.

SECTION IV
DISTRIBUTIONS; ALLOCATIONS OF PROFITS/LOSSES;
REQUIRED TAX ADJUSTMENTS/ALLOCATIONS

4.1 Distributions of Distributable Cash.

A. Distributions shall be made to Members only after the Company and its Subsidiaries have paid all Company Costs then due and payable, paid all Member Loans made to the Company by the Class A Member pursuant to Section 3.2, and paid all amounts then due under any Mortgage Loans. Distributions of Distributable Cash to the Class A Member which has accrued during each calendar month shall be made on the next succeeding Distribution Date and at such other times as the Class A Member shall determine as a Major Decision. Distributions of Distributable Cash to the Class B Member pertaining to any calendar period shall be distributed periodically at times determined by the Manager in its sole discretion, but not more frequently than once during any calendar quarter. Distributions of Capital Proceeds shall be made promptly after the Company receives such Capital Proceeds, but in any event within fifteen (15) days of such receipt, subject to any reserve requirement, holdback or other contractual or governmental obligation of the Company.

B. All distributions of Distributable Cash and Capital Proceeds shall be made in the order of priority shown in subsections C, D, E and F below.

C. To the extent no Changeover Event or Distribution Suspension Event has occurred, all Distributable Cash distributed prior to the Redemption Date shall be distributed as follows:

(i) First, to the Class A Member, until the Class A Member has been paid in full an amount equal to the then accrued and unpaid Enhanced Class A Return on the amount of any additional Capital Contributions made pursuant to Section 3.2;

(ii) Second, to the Class A Member, until the Class A Member has been paid in full an amount equal to any then unreturned additional Capital Contributions made pursuant to Section 3.2;

(iii) Third, to the Class A Member until the Class A Member has been paid in full an amount equal to all then accrued but unpaid Class A Return on the amount of all Capital Contributions it has made pursuant to Section 3.1;

(iv) Fourth, any amount of Distributable Cash which remains after distributions pursuant to clauses (i) – (iii) above shall be distributed to the Class B Member.

D. All Capital Proceeds derived from an Interim Capital Transaction shall, provided that no Changeover Event shall then be in effect, be distributed as follows:

(i) First, to the Class A Member, until the Class A Member has been paid in full an amount equal to the then accrued and unpaid Enhanced Class A Return on the amount of its additional Capital Contributions made pursuant to Section 3.2;

(ii) Second, to the Class A Member, until the Class A Member has been paid in full an amount equal to any then unreturned additional Capital Contributions made pursuant to Section 3.2;

(iii) Third, to the Class A Member until the Class A Member has been paid in full an amount equal to all accrued but unpaid Class A Return attributable to the Properties that are the subject of the then current Interim Capital Transaction;

(iv) Fourth, to the Class A Member until the Class A Member has been paid an amount equal to one hundred twenty percent (120%) of the Allocated Investment Amount for the Properties that are the subject of the then current Interim Capital Transaction;

(v) Fifth, to the Class A Member such amount that will cause the Yield to Investment Ratio for the Properties remaining after the then current Interim Capital Transaction to be at least equal to the greater of (1) the Yield to Investment Ratio in effect immediately prior to the then current Interim Capital Transaction, as determined by the Class A Member, and (2) nine percent (9%);

(vi) Sixth, to the Class A Member such amount that will cause the ratio of the sum of (1) the Class A Member’s Net Invested Capital and (2) the then aggregate outstanding principal balance and accrued but unpaid interest on all of the Mortgage Loans to be not more than (x) such ratio immediately prior to the then current Interim Capital Transaction and (y) seventy-five percent (75%), all as determined by the Class A Member; and

(vii) Seventh, any amount of Capital Proceeds which remains after distributions pursuant to clauses (i) – (vi) above shall be distributed to the Class B Member.

E. All Capital Proceeds derived from a Final Capital Transaction, and all Distributable Cash distributed following the occurrence and during the continuance of a Changeover Event or following the Redemption Date, shall be distributed as follows:

(ii) Second, to the Class A Member, until the Class A Member has been paid in full an amount equal to any then unreturned additional Capital Contributions made pursuant to Section 3.2;

(iii) Third, to the Class A Member until the Class A Member has been paid in full the unpaid amounts of the Redemption Price;

(iv) Fourth, any amount of Capital Proceeds which remain after distributions pursuant to clauses (i) – (iii) above shall be distributed to the Class B Member

F. Upon the occurrence and during the continuance of a Distribution Suspension Event, all Distributable Cash distributed prior to the Redemption Date shall be distributed as follows:

(ii) Second, to the Class A Member, until the Class A Member has been paid in full an amount equal to any then unreturned additional Capital Contributions made pursuant to Section 3.2;

(iv) Fourth, any balance shall be deposited into a reserve account under the control of the Class A Member, and funds therein shall be applied to operating expenses of the Properties approved by the Class A Member.

Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to any Member if such distribution would violate the Delaware Act or any other applicable law or the Mortgage Loan Documents.

4.2 Mandatory Redemption of Class A Member Equity.

A. Notwithstanding anything to the contrary contained herein, no later than the Redemption Date, the Manager shall cause the Company to redeem all of the Class A Member’s Membership Interests in the Company at a redemption price equal to the sum of the following (the “Redemption Price”):

(i) if the Redemption Price is paid on or prior to the Redemption Date, the sum of (a) all unreturned Capital Contributions made by the Class A Member pursuant to Sections 3.1 and 3.2, (b) all accrued but unpaid Class A Return, (c) all accrued but unpaid Enhanced Class A Return on any additional Capital Contributions the Class A Member made pursuant to Section 3.2, and (d) all costs and expenses (including reasonable attorneys’ fees) incurred by the Class A Member in connection with the enforcement of the Class A Member’s rights to redemption pursuant to the terms of this Agreement, if any, and any other amounts the Class A Member is entitled to under the terms of this Agreement; and

(ii) if the Redemption Price is paid following the Redemption Date, the sum of (a) all amounts listed in Section 4.2.A.(i)(a) through (d) above that have accrued through and including the applicable date following the Redemption Date (collectively, “Default Capital Amount”), (b) all accrued but unpaid return at the Enhanced Class A Return Rate on the Default Capital Amount, which return shall begin to accrue on the Default Capital Amount as of the day following the Redemption Date, and (c) all costs and expenses (including reasonable attorneys’ fees) incurred by the Class A Member in connection with the enforcement of such redemption and any other amounts the Class A Member is entitled to under the terms of this Agreement; and

(iii) in the case of either (i) or (ii) above, the Minimum Multiple Amount; and

(iv) the Class A Member Redemption Fee.

B. Notwithstanding anything to the contrary, at any time, upon no less than thirty (30) days prior written notice to the Class A Member, the Company shall have the right to distribute or pay to the Class A Member the Redemption Price in full, but not in part.

C. Any transfer taxes due as a result of the redemption of the Class A Member’s Membership Interest shall be deemed to be an Approved Budget expense of the Company and shall not be deducted from the Redemption Price.

D. The Class B Member may extend the Redemption Date for the First Extension Term if all of the following conditions are satisfied as of the Redemption Date:

(i) No Changeover Event shall have occurred, nor shall any event have occurred which with the giving of notice and/or the passage of time would constitute a Changeover Event, nor shall any claim been threatened which, if valid, would constitute a Changeover Event;

(ii) Each Mortgage Lender holding a Mortgage Loan then in effect shall have agreed to extend the maturity date of such Mortgage Loan through the end of the First Extension Term (or a replacement lender approved by the Class A Member has made a loan that matures not earlier than the end of the First Extension Term);

(iii) The Class B Member shall have paid to the Class A Member an extension fee equal to one-quarter of one percent (0.25%) of the Class A Member’s then Net Invested Capital;

(iv) The Yield to Investment Ratio shall then be no less than nine percent (9%);

(v) The sum of the Class A Member’s Net Invested Capital and the principal amount plus any then accrued and unpaid interest under all of the Mortgage Loans does not exceed seventy-five percent (75%) of the value of all of the Properties, as determined by the Class A Member in its sole discretion; and

(vi) There shall have been no material adverse change with respect to market conditions for the Properties or in the financial condition, operations or business of the Company, the Sponsor Principal, the Holding Companies or the Property Owners since the date of this Agreement, as determined by the Class A Member in its sole discretion.

E. The Class B Member may extend the Redemption Date for the Second Extension Term if all of the following conditions are satisfied as of the last day of the First Extension Term:

(ii) Each Mortgage Lender holding a Mortgage Loan then in effect shall have agreed to extend the maturity date of such Mortgage Loan through the end of the Second Extension Term (or a replacement lender approved by the Class A Member has made a loan that matures not earlier than the end of the Second Extension Term);

(iii) The Class B Member shall have paid to the Class A Member an extension fee equal to one-half of one percent (0.5%) of the Class A Member’s then Net Invested Capital;

(iv) The Yield to Investment Ratio shall then be no less than nine percent (9%);

(vi) There shall have been no material adverse change with respect to market conditions for the Properties or in the financial condition, operations or business of the Company, the Sponsor Principal, the Holding Companies or the Property Owners since the end of the First Extension Term, as determined by the Class A Member in its sole discretion.

F. In connection with an Interim Capital Transaction affecting an individual Property, such Property shall, upon the written request of the Manager, be released from the provisions of this Agreement, provided that the following conditions are satisfied:

(i) With respect to the Basis Mortgage Loan Properties, (A) the applicable Property may be released from the Basis Mortgage Loan pursuant to the Basis Loan Agreement; provided that all of the conditions to a partial release of any such Property set forth in Section 5.34 of the Basis Loan Agreement shall have been satisfied, and (B) the Class A Member shall have received all of the amounts set forth in clauses (i) – (iii) and (v) – (vi) of Section 4.1D hereof; and

(ii) For Properties that are not Basis Mortgage Loan Properties, (A) no Changeover Event shall have occurred and be continuing, (B) the applicable Mortgage Loan shall have been paid in full, (C) all Properties remaining after the release continue to be in compliance with all applicable legal requirements, including, without limitation, all zoning and subdivision laws, setback requirements, parking ratio requirements and use requirements, (D) the Manager shall have delivered to the Class A Member a certificate certifying that the requirements set forth in this clause (ii) have been satisfied, (E) the Class A Member shall have received all of the amounts set forth in clauses (i) – (vi) of Section 4.1 D hereof, and (F) the Class B Member shall have paid all of the Class A Member’s expenses incurred in connection with the release.

4.3 Allocations of Net Profits and Net Losses.

A. Except as otherwise provided in this Agreement, the Net Profits of the Company for any Accounting Year (other than Net Profits resulting from a Capital Transaction) shall be allocated among the Members in the following order of priority:

(i) First, in any Accounting Year in which there are distributions made under Sections 4.1C-F, the Net Profits for such Accounting Year in an amount not to exceed such distributions shall be allocated to the Class B Member; and

(ii) Second, the Net Profits for such Accounting Year in excess of the distributions for such Accounting Year under Sections 4.1C-F, if any, shall be allocated to the Class B Member.

B. Except as otherwise provided in this Agreement, the Net Losses of the Company for any Accounting Year (other than Net Losses resulting from a Capital Transaction) shall be allocated among the Members in the following order of priority:

(i) First, to Class B Member with a positive Capital Account balance, until such positive balances are eliminated; and

(ii) Second, to those Members who have personally guaranteed Company debt(s), an amount up to the guaranteed portion of such debt(s) (excluding any customary carve-out guarantees associated with the Loan);

(iii) Third, any remaining Net Losses shall be allocated among the Class B Member.

4.4 Special Allocations to Capital Accounts and Certain Other Income Tax Allocations. Notwithstanding any other provision of this Agreement to the contrary, the following special allocations shall be made in the following order:

A. Except as otherwise provided in Section 1.704-2(f) of the Treasury Regulations, if there is a net decrease in the Company Minimum Gain during an Accounting Year, then the Capital Accounts of each Member shall be allocated items of income (including gross income) and gain for such year (and, if necessary, for subsequent years) equal to that Member's share of the net decrease in Company Minimum Gain in the manner required under Section 1.704-2(f) of the Treasury Regulations. This Section 4.3.A. is intended to comply with the "minimum gain chargeback" requirement of Section 1.704-2 of the Treasury Regulations and shall be interpreted consistently therewith. If in any Accounting Year that the Company has a net decrease in Company Minimum Gain, if the minimum gain chargeback requirement would cause a distortion in the economic arrangement among the Members and it is not expected that the Company will have sufficient other income to correct that distortion, the Manager may, in its discretion, seek to have the Internal Revenue Service waive the minimum gain chargeback requirement in accordance with Treasury Regulation Section 1.704-2(f)(4).

B. Except as otherwise provided in Section 1.704-2(i) of the Treasury Regulations, if there is a net decrease in Member Nonrecourse Debt Minimum Gain attributable to any Member Nonrecourse Debt during any Accounting Year, each Member who has a share of the Member Nonrecourse Debt Minimum Gain attributable to such Member Nonrecourse Debt shall be specially allocated items of income and gain for such year (and, if necessary, subsequent years) in an amount equal to such Member's share of the net decrease in Member Nonrecourse Debt Minimum Gain in the manner required under Section 1.704-2(i) of the Treasury Regulations. This subparagraph is intended to comply with the partner minimum gain charge back requirements in Section 1.704-2(i) of the Regulations (as applicable to members of limited liability companies taxable as partnerships for federal income tax purposes) and shall be interpreted consistently therewith.

C. In the event that any Member unexpectedly receives any adjustments, allocations, or distributions described in Sections 1.704-1(b)(2)(ii)(d)(4), (5), or (6) of the Treasury Regulations, which create or increase an Adjusted Deficit Capital Account of such Member, then items of Company income and gain (consisting of a pro rata portion of each item of Company income, including gross income, and gain for such year and, if necessary, for subsequent years) shall be specially allocated to such Member in an amount and manner sufficient to eliminate, to the extent required by the Treasury Regulations, the Adjusted Deficit Capital Account so created as quickly as possible. It is the intended that this Section 4.3.C. comply with the "qualified income offset" and "alternate test for economic effect" provisions set forth in Section 1.704-1(b)(2)(ii)(d) of the Treasury Regulations and shall be interpreted consistently therewith.

D. In the event that any Member would have a deficit Capital Account at the end of any Accounting Year which is in excess of the sum of any amount that such Member is obligated to restore to the Company under Section 1.704-1(b)(2)(ii)(c) of the Treasury Regulations and such Member's share of minimum gain as defined in Section 1.704-2(g)(1) of the Treasury Regulations (which is also treated as an obligation to restore in accordance with Section 1.704-1(b)(2)(ii)(d) of the Treasury Regulations), the Capital Account of such Member shall be specially credited with items of Company income (including gross income) and gain in the amount to eliminate, to the extent required by the Treasury Regulations, such excess as quickly as possible.

E. Beginning in the first Accounting Year in which there are allocations of Nonrecourse Deductions, such deductions shall be allocated to the Members in the same manner as Net Profits and Net Losses are allocated for such period. Solely for purposes of determining a Member's proportionate share of any "excess nonrecourse liabilities" of the Company, as described in Treasury Regulation Section 1.752-3(a)(3), the Members' interests in Company profits shall be deemed to coincide with their respective share of Company Net Profits.

F. Any Member Nonrecourse Deductions for any Accounting Year shall be specially allocated to the Member who bears the economic risk of loss with respect to the Member Nonrecourse Debt to which such Member Nonrecourse Deductions are attributable in accordance with Section 1.704-2(i)(1) of the Treasury Regulations (as applicable to members of limited liability companies taxable as partnerships for federal income tax purposes).

G. Any credit or charge to the Capital Accounts of the Members pursuant to this Section 4.3. shall be taken into account in computing subsequent allocations of Net Profits and Net Losses pursuant to Sections 4.2. and 4.4. so that the net amount of any items charged or credited to Capital Accounts pursuant to Sections 4.2., 4.3. and 4.4. shall to the extent possible, be equal to the net amount that would have been allocated to the Capital Account of each Member pursuant to the provisions of this Section IV if the special allocations required by this Section 4.3. had not occurred.

4.5 Allocation of Net Profits or Net Losses from Capital Transactions.

A. Except as provided in this Agreement, Net Profits from a Capital Transaction shall be allocated in the following order of priority:

(i) First, if the Class B Member has a negative Capital Account, Net Profits from a Capital Transaction shall be allocated first to those Members, in proportion to their negative Capital Accounts, until all negative Capital Accounts have been eliminated; and

(ii) Second, any remaining Net Profits not allocated under Section 4.4.A(i) shall be allocated to the extent necessary so that the Capital Account balances of the Members are equal to the amounts distributable to them pursuant to Section 4.5. (this calculation shall assume that the Capital Transaction does not result in the dissolution of the Company even if the Capital Transaction does result in the dissolution of the Company).

B. Except as provided in this Agreement, Net Losses from a Capital Transaction shall be allocated in the following order of priority:

(i) First, if the Class B Member has a positive Capital Account, Net Losses from a Capital Transaction shall be allocated first to such Member, in proportion to their positive Capital Accounts, until all positive Capital Accounts are reduced to zero; and

(ii) Second, any remaining Net Losses not allocated to reduce positive Capital Accounts to zero pursuant to Section 4.4.B(i) shall be allocated to the Class B Member.

4.6 Intentionally Omitted.

4.7 Other Tax Allocation and Related Tax Provisions.

A. In accordance with Section 704(c)(1)(A) of the Code and Section 1.704-1(b)(2)(i)(iv) of the Treasury Regulations, if a Member contributes property with an initial Gross Asset Value that differs from its adjusted basis at the time of contribution, income, gain, loss and deductions with respect to the property shall, solely for federal income tax purposes (and not for Capital Account purposes), be allocated among the Members so as to take account of any variation between the adjusted basis of such property to the Company and its Gross Asset Value at the time of contribution.

B. All recapture of income tax deductions resulting from the sale or disposition of Company property shall be allocated to the Members to whom the deduction that gave rise to such recapture was allocated hereunder to the extent that each such Member is allocated any gain from the sale or other disposition of such property.

C. Any income tax credits (and any liability for recapture of such credit) shall be allocated among the Members in the same manner as the deduction or expenditure which gives rise to such credit is allocated among the Members pursuant to the terms of this Agreement.

D. The Members are aware of the income tax consequences of the allocations made by this Section IV and hereby agree to be bound by the provisions of this Section IV in reporting their distributive shares of the Company's taxable income, gains, deductions, losses and credits for income tax purposes.

4.8 Income Tax Treatment of the Company and the Class A Member’s Interest. Notwithstanding anything in this Agreement to the contrary, the Company, the Members and their respective Affiliates agree that the Class A Member’s Interest shall be treated as debt for all federal, state and local income tax purposes that is eligible for treatment as “portfolio debt” within the meaning of Section 871(h) of the Code, unless required otherwise by the applicable law, regulation, or ruling, and no party hereto shall take any position inconsistent therewith. In accordance with, and without limiting, the foregoing, (i) payments to the Class A Member pursuant to Section 4.1 hereof shall be treated as payments of interest or the repayment of principal, as applicable and (ii) the Company shall provide to each Class A Member a Form 1099-INT showing all payments of interest to such Class A Member during the applicable tax period. Furthermore, (i) the Class B Member shall be treated as the sole owner of the Company for all U.S. federal, state and local income tax purposes, and (ii) all income, gain, loss and expense of the Company shall be allocated solely to the Class B Member in accordance with the tax allocation provisions of this Agreement. The Class A Member Redemption Fee and the amount paid to the Class A Member pursuant to clause (iii) of Section 4.2A shall all be treated as amounts paid to the Class A Member in connection with the Class A Member Capital Contribution, and such amounts shall not be treated as guaranteed payments to a partner within the meaning of Section 707 of the Code.

4.9 Operating Account.

A. The Manager has opened an interest bearing account (the “Operating Account”) with Deposit Bank, which account is in the name of the Company. Any interest earned on funds held in the Operating Account shall be treated as income of the Company. The Class A Member shall have access (via computer connection, if available) during normal business hours to account information in accordance with the Deposit Bank’s general procedures relating thereto. The Manager may create separate subaccounts of the Operating Account and may allocate the funds in the Operating Account to such separate subaccounts in such amounts as reasonably determined by the Manager and for the purposes set forth in Section 4.9.D. below.

B. Subject to the provisions of Section 4.10 below, no party other than the Manager shall have the right to withdraw funds from the Operating Account. The Operating Account shall not constitute trust funds.

C. All reasonable out-of-pocket costs and expenses for establishing and maintaining the Operating Account shall be paid by the Company. All interest on the Operating Account shall be added to and become a part of the Operating Account. The Manager shall not be liable for any loss sustained on the investment of any funds in accordance with this Agreement.

D. On the date hereof, the Class B Member is depositing (i) an amount equal to $75,000.00 into the Operating Account (which shall be available to pay solely for the required repairs or deferred maintenance items listed on Exhibit I attached hereto) and (ii) an amount equal to $11,000 into the Operating Account (which shall be available to pay solely for tenant improvement and leasing costs relating to the Dollar Tree lease at the Property owned by BSV Avondale LLC, and may be disbursed for such purpose upon notice by the Manager to the Class A Member). With respect to clause (i) above, amounts for the roof replacement may be requested for application by a requisition in the form of the requisition referenced in Section 3.22 of the Basis Loan Agreement. The roof replacement shall be completed not later than December 31, 2020, and the ADA compliance upgrades shall be completed not later than June 30, 2020. Upon the completion of such repairs and deferred maintenance referenced in clause (i) above and the Class A Member’s written confirmation that the same is complete, any amounts remaining from such $75,000 reserve may be used by the Company without the restriction set forth therein.

4.10 Application of Account Funds after a Changeover Event. From and after the occurrence and during the continuance of a Changeover Event, the Class A Member shall have the right to apply funds in any of the Accounts as they elect in their sole discretion, including, for the avoidance of doubt, toward payment of the Class A Return or any portion of the Redemption Price and the Class A Member Redemption Fee.

4.11 Accounts Generally. Except for the Accounts, the Company shall not establish or maintain any other bank accounts, securities accounts or other accounts without the prior approval of the Class A Member.

SECTION V
MANAGEMENT

5.1 Role of Manager.

A. Subject to Section 5.2, the Manager shall manage and conduct the operations and related contractual, financial and other affairs of the Company, its Subsidiary(ies) and the Property and make all decisions regarding the Company, its Subsidiary(ies) and the Property pursuant to and in accordance with the terms of this Agreement. The Manager shall generally have all the rights, powers, duties and obligations of a member and a manager under the Delaware Act and as provided by other applicable law.

B. In dealing with the Manager acting on behalf of the Company, no Person shall be required to inquire into the authority of the Manager to bind the Company or its Subsidiary(ies). Persons dealing with the Company or its Subsidiary(ies) are entitled to rely conclusively on the power and authority of the Manager as set forth in this Agreement or in any power of attorney, resolution or other document delivered by the Manager. This Section shall not, however, relieve the Manager of any Obligation to the Company, its Subsidiary(ies) or any other Member resulting from or arising out of any action by the Manager without any Approval of the Class A Member required under this Agreement.

5.2 Major Decisions.

A. Major Decisions requiring the approval of the Class A Member are set forth and described in Exhibit F to this Agreement.

B. Only the Manager may propose to adopt, modify or revoke a Major Decision at any time. Whenever the Manager proposes to adopt, modify or revoke a Major Decision, it shall deliver a written notice (a “Major Decision Notice”) to the Class A Member (i) describing the proposal in sufficient detail and (ii) containing sufficient information to permit the Class A Member to make an informed decision on the proposal and shall subsequently provide to the Class A Member such additional information as the Class A Member may reasonably request. If the Major Decision relates to entering into a new Material Lease, such Major Decision Notice shall also (a) include a copy of the final version of such proposal or lease, (b) include all supporting documentation reasonably necessary to evaluate such request, as reasonably determined by the Class A Member and (c) include the following caption in all capital, bolded, block letters on the first page thereof: “THE FOLLOWING REQUEST REQUIRES A RESPONSE WITHIN TEN (10) BUSINESS DAYS OF RECEIPT. FAILURE TO DO SO WILL BE DEEMED AN APPROVAL OF THE REQUESTED MATERIAL LEASE.”

C. The Class A Member shall promptly consider and evaluate each proposal to adopt, modify or revoke a Major Decision and shall promptly give its decision (set forth in writing) after it has analyzed all relevant information or data required to be delivered to it under Section 5.2.B. The Class B Member expressly acknowledges and agrees that any approval of a proposed Major Decision is subject to the Class A Member’s sole and absolute discretion; provided, however, that for a Major Decision regarding approval of a Material Lease, the Class A Member’s approval of the Material Lease shall not be unreasonably withheld or delayed.

D. The adoption, modification or revocation of a Major Decision requires the approval of the Class A Member. Any Major Decision approved in accordance with this Section 5.2 shall bind the Company and its Members, unless it is later amended, modified or revoked as a Major Decision by a subsequent approval of the Class A Member.

E. Neither the Manager nor any other Member shall have any right or power either on behalf of Company, its Subsidiary(ies) or on its own behalf to make any commitment or engage in any undertaking or action that requires approval of a Major Decision unless or until such Major Decision has been approved in writing by the Class A Member.

F. Once a Major Decision has been approved by the Class A Member as described in this Section 5.2, it cannot be amended, modified or revoked unless the Class A Member approve any such amendment, modification or revocation as a Major Decision.

G. The Class B Member acknowledges that the approval of a Major Decision by the Class A Member is separate and independent from any approval that an Affiliate of the Class A Member may have regarding a similar matter as the Lender under the Basis Loan Agreement. Accordingly, any request for approval of a Major Decision submitted to the Class A Member shall be addressed only to the Class A Member and may not include any request for approval of the same or any other matter by any Affiliate of the Class A Member under the Basis Loan Agreement or otherwise. Any request for approval that does not comply with this Section 5.2G shall be null and void, and shall not constitute a Major Decision Notice.

5.3 Intentionally Omitted.

5.4 Agreements with Affiliates of the Class B Member.

A. Any agreement (“Affiliate Agreement”) between the Company or its Subsidiary(ies) and a Person who is an Affiliate of the Sponsor Principal must be approved by the Class A Member prior to such Affiliate Agreement being effective or binding upon the Company or its Subsidiary(ies), except those Affiliate Agreements entered into by the Company in the ordinary course of business and on terms which are fully disclosed to the Class A Member in advance and are no less favorable to the Company or such Affiliate than would be obtained in a comparable arm’s-length transaction with an unrelated third party.

B. Except for those fees specifically set forth in Section 5.12 and those certain Property Management and Leasing Agreements listed in Exhibit J hereto, the Company shall not pay, or permit the payment of, development fees, management fees, brokerage or leasing fees or commissions or any other compensation of any form whatsoever to any Member or any direct or indirect partner, member, shareholder or Affiliate thereof, or request disbursement of funds from the Company for such purpose, without the prior written consent of the Class A Member. For the avoidance of doubt, the foregoing restriction shall not apply to fees currently paid to unaffiliated third-party service providers. Any approval, modification, consent, decision, waiver, notice of default or termination, or other action by or on behalf of the Company or its Subsidiary(ies) under an Affiliate Agreement shall be approved by the Class A Member. The Class A Member, in its own name or through or on behalf of the Company or its Subsidiary(ies) and at the expense of the Company, shall have the sole right and authority to enforce the provisions of any Affiliate Agreement against the subject Sponsor Principal thereunder by all appropriate methods, including the commencement of legal or other proceedings against the Sponsor Principal or the termination of such Affiliate Agreement in accordance with its terms or applicable law, without the participation or approval of the Class B Member.

C. If (i) an Affiliate of the Class B Member is removed as the Manager pursuant to Section 5.6 or if such Class B Member’s Membership Interest in the Company has been subject to change as described in Section 5.6D, or (ii) if the manager of a specific Property Owner and/or Holding Company is removed as manager pursuant to Section 5.6, the Class A Member shall have the right and authority to act on behalf of the Company or its Subsidiary(ies) without the participation or approval of the Class B Member (i) to terminate any Affiliate Agreement with a Sponsor Principal, or, with respect to clause (ii) above, to terminate any Affiliate Agreement with respect to, or to the extent it applies to, an individual Property or Properties (in either case with no termination or any other type or form of penalty, fee or other compensation being paid to the Sponsor Principal notwithstanding any contrary provision that may be contained in such Affiliate Agreement) upon written notice to the Class B Member and the Sponsor Principal and (ii) to replace a terminated Affiliate Agreement (or elect not to replace it) with an agreement with another Person who is not an Affiliate of any Member. The foregoing rights may be exercised whether or not such Sponsor Principal is in default under any agreement or with respect to any obligation it owes to the Company, any Subsidiary(ies) or the Property. Each Affiliate Agreement shall provide for the termination right described in this Section 5.4.C.

5.5 Duties of Manager.

A. The Members hereby appoint the Class B Member as the initial Manager of the Company. The Class B Member hereby agrees to serve in that capacity pursuant to the terms and conditions of this Agreement. The Class B Member may only be removed as the Manager pursuant to Section 5.6 hereof.

B. The Manager is authorized and directed to carry out each Approved Budget and such other Major Decisions that have been approved by the Class A Member. In addition, the Manager shall have the responsibility, obligation and authority to conduct the day-to-day operations of the Company and its Subsidiary(ies) and to make and implement decisions on behalf of the Company and its Subsidiary(ies) with respect to the day-to-day operations of the Company and its Subsidiary(ies), in each case so long as its actions are in accordance and consistent with the terms of this Agreement, the Approved Budget and such other guidelines or policies as have been previously approved by the Members for the operation, development and maintenance of the Company, its Subsidiary(ies) and the Property (or, to the extent the Class A Member has failed to approve all or part of a Budget, the portions of the Budget in effect from the prior Fiscal Year, in accordance with Section 5.9.C.).

C. The Manager agrees that, in addition to any obligations and responsibilities set forth elsewhere in this Agreement, the Manager shall be responsible to carry out and implement, in each case pursuant to and in accordance with the terms of this Agreement, the following items:

(i) preparation of the Budget pursuant to Section 5.9;

(ii) causing the Company and its Subsidiary(ies) to comply with the provisions of the Mortgage Loan Documents, Material Leases and other tenant leases and subleases, property management or service agreements relating to the Property, and other agreements and contracts binding on the Company, its Subsidiary(ies) or the Property;

(iii) causing the Company and its Subsidiary(ies) to comply with all environmental, health and safety, zoning and other legal requirements applicable to the Company, its Subsidiary(ies) or the Property;

(iv) preparation and distribution to the Class A Member of the Monthly Statements and Quarterly Statements described in Section 6.4 and of the Annual Report of the Company described in Section 6.5;

(v) preparation and distribution to the Mortgage Lender (with copies to the Class A Member) of all financial reports and other information required to be delivered to such lender(s) under the terms of the Mortgage Loan Documents;

(vi) distribution to the Class A Member of copies of all Material Leases and other written agreements (other than routine equipment leases or routine contracts that in each case are not Affiliate Contracts, have a term of one year or less or are terminable without cause and without penalty on thirty (30) days or less notice and require payments during such term of less than $10,000 (“Immaterial Contracts”)) binding upon or affecting the Company, its Subsidiary(ies) or the Property and copies of all written notification of alleged default or breach by the Company or its Subsidiary(ies) under any such contracts or Material Leases, as well as any requests for required approvals or consents under such Material Leases;

(vii) using best efforts to obtain from the Mortgage Lender from time to time such certificates of estoppel with respect to compliance by a Property Owner with the terms of the applicable Mortgage Loan Documents, as may be requested by the Class A Member;

(viii) delivering to the Class A Member such certifications, representations, warranties or other evidence from time to time requested by the Class A Member in its sole discretion confirming that (a) none of the Property Owners is, nor does it maintain, an “employee benefit plan” as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA, or a “governmental plan” within the meaning of Section 3(32) of ERISA; (b) no Property Owner is subject to any state statute regulating investments and fiduciary obligations with respect to governmental plans; and (c) one or more of the following circumstances is true: (1) equity interests in each Property Owner are publicly offered securities, within the meaning of 29 C.F.R. §2510.3 101(b)(2); (2) none of the assets of any Property Owner are, by virtue of the application of 29 C.F.R. §2510.3 101(f) as modified by section 3(42) of ERISA, regarded as assets of any Plan; or (3) each Property Owner qualifies as an “operating company” or a “real estate operating company” within the meaning of 29 C.F.R. §2510.3 101(c) or (e);

(ix) distribution to the Class A Member of copies of all proposed Material Leases blacklined to show changes from the standard form of lease approved by the Class A Member, prior to Manager seeking the Class A Member’s consent to any such proposed Material Lease;

(x) notification to the Class A Member of any non-compliance, default or breach under any Mortgage Loan Document or any contract (including without limitation any Material Lease, but excluding Immaterial Contracts), binding upon or affecting the Company, its Subsidiary(ies) or the Property by the Company, its Subsidiary(ies) or the other Person(s) who are parties to such contract;

(xi) distribution (within a reasonable period of time) to the Class A Member of (1) all requests by the Company or its Subsidiary(ies) under the Mortgage Loan, (2) all operating, financial and other reports and statements and all other documents and notices (including all requests for Mortgage Lender approval or consent with regard to actions requiring such approval or consent under the Mortgage Loan Documents) sent by or on behalf of the Company, its Subsidiary(ies) or the Manager to any Mortgage Lender and (3) notices of default and all other notices, demands, requests, documents and other written communications received by the Company, its Subsidiary(ies) or the Manager from any Mortgage Lender or any Person or agent acting on behalf of the Mortgage Lender;

(xii) distribution to the Class A Member of (1) all operating, financial and other reports and statements and all other documents and notices sent to the Company, its Subsidiary(ies) or the Manager by any property manager for the Property and (2) notices of default and all other material notices, demands, requests, documents and other written or material communications sent by or on behalf of the Company, its Subsidiary(ies) or the Manager to any property manager for the Property;

(xiii) notification to any insurance carrier who insures the Company, its Subsidiary(ies) or the Property of any occurrence resulting in a claim having a claim value of in excess of $50,000 that may be covered by insurance;

(xiv) obtaining and maintaining insurance for the Company, its Subsidiary(ies) and the Property as required by the Mortgage Loan Documents and as described in each Approved Budget;

(xv) obtaining insurance certificates from the then applicable property manager evidencing (1) fidelity insurance coverage of all directors, officers, employees and Affiliates of such property manager acting on behalf of such property manager in managing the Property and (2) any other insurance coverage required under the applicable property management agreement, and the distribution of certified copies of such certificates to the Class A Member;

(xvi) notification to the Members of any litigation, arbitration or other legal, governmental or equitable proceeding that has been commenced or threatened, in writing, against the Company, its Subsidiary(ies), the Property or any Member which might materially adversely affect the Company's or its Subsidiaries' condition (financial or otherwise) or business or the Property;

(xvii) furnishing to the Class A Member all instruments, documents, boundary surveys, footing or foundation surveys, certificates, plans and specifications, appraisals, title and other insurance reports and agreements, and each and every other document, certificate, agreement and instrument as reasonably requested by the Class A Member from time to time, in each case, to the extent such requested item is in Manager’s control or possession;

(xviii) furnishing to the Members within ten (10) Business Days after request, such detailed information with respect to the Property and the financial affairs of the Company, its Affiliates or the Manager and its Affiliates as may be reasonably requested by the Members;

(xix) using diligent efforts to deliver to the Class A Member, upon request, tenant estoppel certificates from each commercial tenant leasing space at the Property in form and substance reasonably satisfactory to the Class A Member;

(xx) providing prompt notice to the Class A Member of any casualty sustained by the Property, commencing and diligently prosecuting to completion the repair and restoration of the Property as nearly as possible to the condition the Property was in immediately prior to such casualty, and providing to the Members all reports, plans, specifications, documents, correspondence and other materials that are delivered to the Mortgage Lender under the Mortgage Loan Documents in connection with a restoration of the Property after a casualty or condemnation;

(xxi) providing prompt notice to the Members of any actual or threatened condemnation by any Governmental Authority of all or any part of the Property, causing the Company and its Subsidiaries to deliver to the Members a copy of any and all papers served in connection with such proceedings, delivering such instruments as may be requested by the Members to permit the Members to participate in any such proceedings, and consulting and cooperating with the Members, their attorneys and experts, in the carrying on or defense of any such proceedings;

(xxii) furnishing, or causing to be furnished, to the Class A Member receipts or other evidence for the payment of the real estate taxes and assessments and the charges relating to the Property prior to the date the same shall become delinquent;

(xxiii) if, as of the date which is ten (10) Business Days prior to the date on which any debt service or other payment under the Mortgage Loan Documents is due (the “Determination Date”), the Company does not have sufficient funds to make the payment (without regard to funds expected to be received after the Determination Date), notifying the Class A Member of the deficiency and the amount thereof;

(xxiv) within thirty (30) days after the Effective Date, curing and causing to be discharged of record the following municipal violations issued by the District of Columbia Fire & EMS Department, Fire Prevention Division, affecting the Property owned by BSV Avondale LLC: (1) Violation No. 2012 IFC CH 07, (2) Violation No. 2012 IFC CH 03 and (3) Violation No. 2012 IFC CH 09;

(xxv) without limitation on any other provision of this Section 5.5 with respect to the operation and maintenance of the Properties, causing BSV Avondale LLC, BSV Highlandtown LLC and BSV Hollinswood LLC to implement and follow the terms and conditions of the Security Contracts relating thereto; and

(xxvi) taking any other action that is reasonably requested by the Members.

D. The Manager, at the expense of the Company, shall maintain in effect a fidelity insurance policy naming the Company and its Subsidiary(ies) as loss payee, affording coverage for all directors, officers, employees and Affiliates acting on behalf of the Manager.

E. The amounts expended by any Member to comply with its obligations pursuant to this Agreement shall not be treated or deemed to be a Capital Contribution, a Class B Member Loan or a Member Loan by that Member to the Company or its Subsidiary(ies) under this Agreement, unless that treatment has been expressly authorized under this Agreement or approved by the Class A Member as a Major Decision.

F. The Manager then serving may not voluntarily resign without giving at least sixty (60) days prior written notice to the Class A Member, unless otherwise consented to by the Class A Member in writing. Upon such resignation, the Class A Member shall be entitled to elect either to become the Manager or to hire another Person (who may be an Affiliate) in its sole discretion who will serve as the Manager at the cost and expense of the Company and on terms reasonably acceptable to the Class A Member and that are otherwise consistent with the terms of this Agreement.

5.6 Removal of Manager.

A. Subject to the provisions of subsection B below and the notice and cure rights described in subsection C below, the Class A Member shall have the right to remove the manager of any Property Owner(s) (and/or, to the extent applicable, of any corresponding Holding Company(ies) (or, in the case of an event described in clause (v) of this Section 5.6A, or if the Class A Member is entitled to remove the manager of all of the Property Owners, the Class A Member shall have the right to remove the Manager of the Company) for cause by delivering to it a written notice of removal and stating the grounds for removal, which must be based upon or related to one or more of the following events (each, a “Changeover Event”):

(i) the breach of any material provision of this Agreement or any other document delivered to the Class A Member by the Manager, the Class B Member or Sponsor Principals (including, without limitation, any breach of any of the terms and conditions of Sections 5.2, 6.4, 6.5 and VIII), unless cured within five (5) Business Days after notice thereof from the Class A Member;

(ii) any act of fraud, gross negligence or willful misconduct by the Class B Member, Manager or Sponsor Principal, or by any property manager affiliated with any of the foregoing;

(iii) any misapplication or misappropriation by a Property Owner of any rents or other Property related income, unless cured within three (3) days after notice thereof from the Class A Member;

(iv) an “Event of Default” (as defined in the Mortgage Loan Documents and after taking into account any required notice of default and the expiration of any applicable grace period thereunder) by the Company or any of its Subsidiary(ies) under any Mortgage Loan Document;

(v) failure by the Company to pay the Redemption Price to the Class A Member on or before the Redemption Date;

(vi) failure by the Class B Member to make (within the timeframe required pursuant to Section 3.2.B.) any additional Capital Contribution or Class B Member Loan required by the Class A Member to pay Required Costs;

(vii) the failure of the Company to make any Class A Return payment for any month on the Distribution Date and such failure continues for five (5) days following the date any such payment is due;

(viii) [Intentionally Omitted];

(ix) a violation of any covenant set forth in Section 5.8 hereof; or

(x) a default beyond any applicable grace period under the MVB Bank Loan Documents.

B. Except for the Changeover Event described in clause (v) of Section 5.6A, the provisions of this Section 5.6 shall be applied on a property-by-property basis, so that a Changeover Event shall apply only to the Property which is the subject thereof (and to the corresponding Property Owner, and, if applicable, the corresponding Holding Company and the manager(s) thereof), except that (1) if a Changeover Event occurs with respect to a Basis Mortgage Loan Property, then at the option of the Class A Member, the same shall be deemed to be a Changeover Event with respect to any one or more of the Basis Mortgage Loan Properties and/or one or more of the Non-Basis Loan Properties, and (2) if a Changeover Event occurs with respect to a Non-Basis Loan Property, then at the option of the Class A Member, the same shall be deemed to be a Changeover Event with respect to any one or more of the Non-Basis Loan Properties.

C. Upon any removal of the manager of a Property Owner (and/or, if applicable, of the corresponding Holding Company) after a Changeover Event, such manager shall be replaced in that capacity by the Class A Member or a Person designated by the Class A Member. Upon removal pursuant to this Section 5.6, (i) the original manager shall no longer have any power or authority to act as manager pursuant to this Agreement, (ii) the Class A Member or its designee shall have sole authority to act as manager of the applicable Property Owner (and, if applicable, of the corresponding Holding Company), and (iii) the Manager shall no longer have any authority to initiate any Major Decisions, and the Class A Member, without any approval rights of the Class B Member, may take any action, or cause the Company to take any action, that constitutes a Major Decision, with respect to the applicable Subsidiary(ies) (including, without limitation, causing the sale of the Property owned by the applicable Property Owner on such terms as the Class A Member may approve, in its sole discretion (and hire brokers and take any other action it determines to be necessary or desirable in connection with any such sale). Without limiting the foregoing, upon the removal of a manager as provided above, the Class A Member shall become the sole signatory on any bank accounts held by the applicable Subsidiary(ies) and the Manager (or the manager which is the subject of removal) shall have no further right to withdraw any funds from any such account. In such event, the Manager (or the manager which is the subject of removal) shall take all actions that may be necessary or desirable to transfer control of all such bank accounts to the Class A Member or its designee.

D. Upon any removal of the Manager after a Changeover Event described in clause (v) of Section 5.6A or upon the removal of the manager of all of the Property Owners, the Manager shall be replaced in that capacity by the Class A Member or a Person designated by the Class A Member. Upon removal pursuant to this Section 5.6, (i) if the Manager has a Membership Interest, then the entire interest of the Manager shall, without further action by any Member or any other Party, be automatically and immediately changed into a Non-Manager interest, (ii) the Manager shall no longer have any power or authority to act as Manager pursuant to this Agreement, (iii) the Class A Member or its designee shall have sole authority to act as Manager of the Company, (iv) the Manager which is the subject of removal shall no longer have any authority to initiate any Major Decisions, and the Class A Member, without any approval rights of the Class B Member, may take any action, or cause the Company to take any action, that constitutes a Major Decision, and (v) the Class A Member shall have the right to remove the manager of each Property Owner and Holding Company and to designate a new manager thereof. Without limiting the foregoing, upon the removal of the Manager, the Class A Member shall become the sole signatory on any bank accounts held by the Company or any Subsidiary (including the Property Owners and Holding Companies) and the Manager which is the subject of removal shall have no further right to withdraw any funds from any such account. In such event, the Manager shall take all actions that may be necessary or desirable to transfer control of all such bank accounts to the Class A Member or its designee.

5.7 Right of First Offer on Future Refinancing. The Class A Member shall have the rights with respect to the refinancing of any Mortgage Loan affecting any Property (whether or not it is a Basis Mortgage Loan Property) that are set forth in Section 10.24 of the Basis Loan Agreement.

5.8 Covenants Concerning MVB Bank and Eagle Bank. The Class B Member shall comply, and shall cause the Sponsor Principal to comply, with the following covenants:

A. The Class B Member and the Sponsor Principal shall forward to the Class A Member, within five (5) Business Days after receipt, a true and complete copy of any notice of default given under the MVB Bank Loan Documents or the Eagle Bank Loan Documents with respect to the Company, the Class B Member, any Affiliate of either of them, or the Sponsor Principal.

B. The Class B Member shall deliver to the Class A Member a true and complete copy of the compliance certificate required to be given to the lender under the MVB Bank Loan Documents concurrently with the delivery thereof to such lender.

C. The MVB Bank Loan Documents shall not be amended, and the collateral description under the Eagle Bank Loan Documents cannot be amended or supplemented, in either case without the prior written consent of the Class A Member. If the loan evidenced by the MVB Bank Loan Documents or the Eagle Bank Loan Documents is refinanced or replaced, the collateral therefor may not include a security interest in the Sponsor Principal’s ownership interests in the Class B Member or any Affiliate thereof without the prior written consent of the Class A Member.

D. Except as expressly permitted under Section 8.4 hereof, the Sponsor Principal shall not grant any additional security interests to the lender under either the MVB Bank Loan Documents or the Eagle Bank Loan Documents.

5.9 Approved Budget.

A. Attached as Exhibit G to this Agreement is the initial Approved Budget.

B. Concurrently with the Company or any of its Subsidiary's delivery of the Budget (defined below) to the Mortgage Lender under the Mortgage Loan Documents, the Manager shall prepare and submit to the Class A Member for its approval updated operating and capital expenditure budgets for the Company, its Subsidiary(ies) and the Property, projecting all revenues expected to be received and all costs and expenses expected to be incurred during the following Fiscal Year, including repair and maintenance costs, together with projected leasing activity and occupancy (a “Budget”). The Manager shall explain in footnotes to each proposed Budget in reasonable detail any assumptions used in projecting such costs, including all operational costs, real estate taxes, insurance and general and administrative costs and proposed capital expenditures and a comparison of projected revenues and expenses against the prior Fiscal Year’s actual costs (including an explanation of material deviations). Such Budget approved by the Class A Member shall become the “Approved Budget” for the Company.

C. If the applicable Mortgage Lender fails to approve all or part of a proposed amendment or modification to the Approved Budget, the portions of the proposed amendments or modifications that have been approved shall become effective to the extent permitted under the Mortgage Loan Documents. Manager shall notify the Class A Member of any objection by the Mortgage Lender to a proposed Budget and shall promptly deliver to the Class A Member copies of all correspondence between the applicable borrower and the Mortgage Lender regarding the review and approval of each Budget. The portions of the last Approved Budget that are equivalent to the portions of the proposed Budget that were not approved shall remain in effect and shall be carried over into the following Fiscal Year. Any Company Costs in the portion(s) of the prior Approved Budget so carried over shall be increased by the percentage increase in the Consumer Price Index during the prior Fiscal Year. The portions of the proposed Budget that have been approved, together with the portions of the existing Approved Budget that are so carried over, shall constitute the Approved Budget for the following Fiscal Year.

D. The Manager shall use commercially reasonable efforts to avoid causing the actual costs of ownership, operation and management of the Company, its Subsidiary(ies) or the Property to exceed the Approved Budget either in total or in any one accounting category. Any expense in connection with the ownership, operation and management of the Property causing or likely to cause a variance of ten percent (10%) or more, and $10,000 or more, in any one Approved Budget category for a particular year-to-date shall be promptly explained to the Class A Member by the Manager (and in any event shall be included as a part of the Manager’s Quarterly Statement pursuant to Section 6.4). All payments of Company Costs must be charged to the proper accounting category as approved by the Class A Member. The Manager shall secure the prior written approval of the Class A Member before expending, obligating the Company or its Subsidiary(ies) for or approving any expenditure in connection with the ownership, operation and management of the Property, its Subsidiary(ies) or the Company that would result in an Approved Budget category being exceeded (a “Cost Overrun”) by ten percent (10%) or more, and $10,000 or more, in that category of the Approved Budget unless such Cost Overrun is caused by or results from a Noncontrollable Cost described in subsection E. or an Emergency Cost described in subsection F.

E. The Manager may make or cause to be made any expenditure not contemplated by the Approved Budget that is an expense of the following type (“Noncontrollable Cost”) without the approval of the Class A Member: (1) utility costs, association dues, governmental fees, personal property taxes, insurance premiums, snow removal and real estate taxes or any other special assessments imposed by any tax authority, or (2) amounts incurred pursuant to and in accordance with any lease, contract or agreement that (i) was previously approved by the Class A Member, (ii) is binding on the Company or its Subsidiary(ies) and (iii) is not being paid to the Class B Member or the Sponsor Principal.

F. Where emergency action is necessary to prevent imminent risk to health and safety to Persons on or about the Property, imminent property damage, imminent imposition of criminal or civil sanctions against the Company, its Subsidiary(ies) or any Member, imminent loss of substantial value of the Property, termination of any critical services at the Property or the filing of a lien against the Property (each an “Emergency Cost”), the Manager may make, or cause to be made, expenditures not contemplated by the Approved Budget if (1) any expenditure made without the Approval of the Members is, in the Manager’s good faith judgment, reasonable and necessary under the circumstances set forth above and (2) the Manager endeavors diligently and in good faith (i) to notify the Class A Member of any such emergency and (ii) obtain verbal approval from the Class A Member for any required expenditure.

G. The Manager shall promptly give notice to the Class A Member of payment of any Cost Overrun permitted by subsection D., any Noncontrollable Cost permitted by subsection E. or any Emergency Cost permitted by subsection F., and shall include reference to each such payment in its next Quarterly Statement pursuant to Section 6.4, together with explanatory notes on the reason for such expenditure.

5.10 Other Disclosures. Subject to the provisions of Section 5.5 hereof, the Manager shall keep the Class A Member reasonably informed of any material fact, information, project, litigation, employee relations or other matter of which the Manager has actual knowledge (either directly or through an Affiliate) and which could reasonably be expected to have a material impact on the operations or financial position of the Property, its Subsidiary(ies) or the Company. The Manager shall provide all material information relating to the Property or the management or operation of the Property as any Class A Member may reasonably request from time to time.

5.11 Power of Attorney. Each Member hereby irrevocably constitutes and appoints the Manager (and the Class A Member with respect to matters permitted under Section 5.4) as its true and lawful attorney-in-fact, with full power of substitution, in its name, place and stead to make, execute, sign, acknowledge, record and file, on its behalf and on behalf of the Company or its Subsidiary(ies), the following:

A. A certificate of formation, a certificate of doing business under an assumed name, a certificate of qualification to do business and any other certificates or instruments that may be required to be filed by the Company, its Subsidiary(ies) or any of the Members under the laws of the State of Delaware and any other jurisdiction whose laws may be applicable to the operation and maintenance of the Property;

B. A certificate of cancellation of the Company or its Subsidiary(ies) and such other instruments as may be deemed necessary or desirable by the holder of such power upon the dissolution of the Company or its Subsidiary(ies); and

C. Any amendment of the instruments described in subsections A. and B. above, provided such amendments are either required by law to be filed or have been authorized by the specific Member or Members whose authorization is required.

The foregoing grant of authority (i) shall survive the Transfer by a Member of the whole or any portion of its Membership Interest pursuant to the terms of this Agreement, (ii) is a special power of attorney coupled with an interest, is irrevocable and shall survive the bankruptcy or liquidation of any Member granting such power, (iii) may be exercised by any replacement to the initial Manager serving in such capacity pursuant to the terms of this Agreement and (iv) may be exercised by the holder on behalf of each Member by a facsimile signature or by listing all of the Members executing any instrument with a single signature as attorney-in-fact for all of them. The provisions of this Section shall survive the expiration or other termination of this Agreement. The Manager shall give notice to the other Members at least three (3) Business Days prior to the exercise of any authority described in this Section stating the purpose of that exercise.

5.12 Management Fees; Reimbursement of Expenses; Other Fees.

A. Broad Street Realty, LLC shall be entitled to receive a recurring annual property management fee from the Company equal to three percent (3%) of each Property Owner’s gross revenues (computed before any vacancy allowance). To the extent there is not sufficient cash flow from an individual Property Owner to the Company to pay the property management fee, the property management fee will accumulate until sufficient funds are available. To the extent not otherwise set forth in any other agreement between the Company and the Manager or an Affiliate of the Manager for leasing the Property or upon a sale of the Property or a refinancing of any Mortgage Loan, or any replacements for any Mortgage Loan, the Manager and/or its Affiliates may receive compensation at then current market rates for their services in arranging the leasing, sale or refinancing.

B. Upon the submission of appropriate documentation, the Manager, Broad Street Operating Partnership, LP and/or Broad Street Realty, LLC shall be reimbursed by the Company for reasonable out-of-pocket expenses incurred by the Manager, Broad Street Operating Partnership, LP, Broad Street Realty, LLC, or any one or more of their respective Affiliates, on behalf of the Company or at the Company's request. The provisions of this Section 5.12 are, however, subject to any limitations under Section 6.12.

C. All management, consulting and leasing fees as well as expense reimbursements described in this Section 5.12 shall be considered an authorized expenditure of the Company's funds for all purposes.

5.13. Nonliability of Manager. In discharging its duties hereunder, the Manager shall be fully protected in relying in good faith upon the records required to be maintained under the Act and upon such information, opinions, reports or statements by any of the Members, or agents, or by any other person, as to matters the Manager reasonably believes are within such other person's professional or expert competence and who has been selected with reasonable care by or on behalf of the Company, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, profits or losses of the Company or any other facts pertinent to the existence and amount of assets from which distributions to Members might properly be paid. Except to the extent caused by the negligent or wrongful acts or omissions of the Manager, to the fullest extent permitted by law, the Manager shall not be liable to the Company or to any Member for any loss or damage sustained by the Company or any Member. The provisions of this Section 5.13. shall also apply to any Affiliate or designee of the Manager, including Broad Street, and any former Manager.

5.14. Indemnification. To the fullest extent permitted by law, the Company shall fully defend, indemnify and hold harmless each Manager and any former Manager, as well as reimburse them for, any and all claims, liabilities (including all such liabilities under federal and state securities laws, including the Securities Act of 1933, as amended), losses, suits, actions, damages, fines, penalties, costs and expenses (including attorneys' fees whether or not litigation results and as may be incurred through all levels of appeal, as permitted by law), incurred or sustained by them in connection with any business or activity of the Company, or in any other way pertaining to the Company or its affairs, or with respect to any action (or omission to act) or decision by them in their capacity as a Manager, except to the extent caused by or resulting from the negligent or wrongful acts or omissions of the Manager or former Manager. Such indemnification shall include all sums of money, costs and expenses (including reasonable attorney’s fees, whether or not litigation results, and as may be incurred through all levels of appeal) incurred or paid by a Manager or former Manager in investigating, defending and/or compromising any such matter. Further, the Company shall advance expenses to any Manager or former Manager with respect to any matter for which such Manager or former Manager is or may be entitled to indemnification hereunder, provided such Manager or former Manager agrees to repay such sums to the Company, without interest or any security, if it is ultimately determined by a court of competent jurisdiction that it was not entitled to such indemnification. Any employees, officers, directors, partners, stockholders, members, trustees or other owners/representatives of any Manager or former Manager which is other than a natural person shall be entitled to all of the benefits and protection afforded the Manager and any former Manager under Section 5.13 and this Section 5.14.

5.15. Outside Interests/Interested Party Transactions. The Manager shall not be required to devote its full time, attention and energies to manage the Company since it is understood and acknowledged that the Manager may have other business or professional interests and may engage in other activities in addition to those relating to the Company. Rather, the Manager shall devote only such time as it, in its discretion, shall deem necessary to the efficient operation of the Company's business and activities. The Manager may engage independently or with others (including, but not limited to, any Member or Affiliate of a Member), in other business ventures of every nature or description, and neither the Company, nor any Member if not directly engaged in such venture, shall have any rights in and to such independent ventures or the income or profits derived there from. In particular, the Manager shall not be obligated to present any particular business or investment opportunity to the Company or the Members even if such opportunity involves an investment or other business similar to the Company's, and the Manager shall have the right to take for its own account or to recommend to others any such particular investment or business opportunity.

SECTION VI
ADMINISTRATIVE PROVISIONS

6.1 Principal Office and Registered Agent. The principal office and place of business of the Company shall be as determined by the Manager. The Company may have such additional offices as the Manager shall deem advisable and/or convenient. The name and address of the registered agent of the Company in the state where formed or in any other jurisdiction where it may qualify to do business as a foreign limited liability company shall be as determined by the Manager.

6.2 Books and Records. The Manager shall maintain or cause to be maintained, at the expense of the Company and in a manner customary and consistent with good accounting principles, practices and procedures, office records, books and accounts (which shall be and remain the property of the Company) in which shall be entered fully and accurately, on a calendar year basis and in accordance with the Accounting Method, financial and other transactions with respect to the operations of the Company and ownership and operation of the Property, and which shall reflect all of the financial affairs of the Company and all items of income and expense with respect to the Property and any services, equipment or furnishings provided in connection with the operation of the Property, whether such income or expense is realized by the Company, the Members or any Affiliates thereof. Bills, receipts, vouchers and other appropriate evidence of revenues and expenses of the Company shall be maintained on file by the Manager. The Manager shall maintain all records, books and accounts of the Company in a safe manner and separate from any other records, books and accounts. All records, books and accounts shall be prepared and maintained by the Manager at the principal place of business of the Company or any other Approved place or places. Each Member or its duly authorized representative shall have the right to inspect, examine, copy and audit all records, books and accounts at the Company’s office during reasonable business hours.

6.3 Bank Accounts.

A. The Manager shall deposit and shall cause the Company, each property or asset manager employed by or on behalf of the Company and, to the extent required under the applicable Mortgage Loan Documents, the tenants under all leases with the Property to deposit all revenues and receipts of the Company, including cash balances derived from rents or occupancy payments or otherwise arising from ownership or leasehold interest of the Property, in one or more bank accounts established in the name of the Company by the Manager (each, an “Account”) or as otherwise required by any applicable Mortgage Loan Documents. Each Account shall be solely in the name of the Company or, if appropriate, its Subsidiary(ies) or in such other name or form as is required by any applicable Mortgage Loan Documents. In no event shall any Account be commingled with any accounts of the Manager or any other Person. Each Account shall be opened in such depository institution under such arrangements as the Class A Member shall approve. Any investment of funds in an Account shall be made in the name of the Company or the applicable Subsidiary and shall be invested in one or more Permitted Investments. The Manager shall provide the Class A Member with on-line access to statements and information for each Account, and shall further provide the Class A Member promptly following receipt copies of all statements received in connection with each Account. The Manager shall provide written notice to the Class A Member upon the opening of, or the change in terms to, any Account or the designation of any Person to withdraw funds from or sign checks drawn on any Account. Upon the occurrence and continuance of a Changeover Event, the Class A Member shall have the sole authority to withdraw Company funds, write Company checks or engage in any other financial transaction regarding the funds of the Company or any Account of the Company, and the Manager have no further right in connection therewith. Notwithstanding anything contained herein to the contrary, any Account of a Subsidiary opened pursuant to this Section 6.3, and any right under this Agreement to take any action with respect thereto, shall be subject to and limited by the terms and provisions of the Mortgage Loan Documents to the extent they apply to such Account (the “Loan Account Terms”), and to the extent there are any conflicts with or inconsistencies between the Loan Account Terms and this Agreement, the Loan Account Terms shall control.

B. The funds of the Company shall not be co-mingled with the funds of the Manager or any other Person and the Manager shall not employ such funds in any manner except for the benefit of the Company and in accordance with the terms of this Agreement, including the Approved Budget.

6.4 Monthly/Quarterly Statements. The Manager shall, by the thirtieth (30th) day following the end of each calendar month or quarter, as applicable as provided below, prepare and deliver to the Class A Member a report (“Monthly Statement” or “Quarterly Statement”, as applicable) containing the following items: (i) on a monthly basis, a rent roll for each Property and monthly and year-to-date operating statements, noting net operating income of the Property, all in form satisfactory to the Class A Member; (ii) on a quarterly basis, a balance sheet for such calendar quarter; (iii) on a quarterly basis, a comparison of the budgeted income and expenses and the actual income and expenses for each quarter and year-to-date for the Property, together with a detailed explanation of any variances of ten percent (10%) or more, and $10,000 or more, between budgeted and actual amounts for such period and year-to-date; and (iv) together with any report, a representation that the Company has not incurred any indebtedness other than indebtedness permitted hereunder. Each such statement shall be accompanied by a certification from the chief financial officer of the Manager certifying (A) that such items are true, correct, accurate and complete and fairly present the financial condition and results of the operations of the Company and the Property in accordance with the Accounting Method (subject to normal year-end adjustments) and (B) whether there exists a default under this Agreement or any of the Mortgage Loan Documents), and if so, the nature thereof, the period of time it has existed and the action then being taken to remedy it; and (vi) such other detailed information as the Class A Member shall reasonably require. In addition, the Manager shall promptly inform the Class A Member of all material developments regarding the Property of its Subsidiary(ies) without waiting to include such developments in the next monthly report. The Manager shall deliver all reports in paper and/or electronic format as requested by the Class A Member.

6.5 Annual Reports. Within ninety (90) days after the end of each calendar year during the term of this Agreement, Manager shall arrange for and furnish to the Class A Member annual financial statements (each, an “Annual Report”) for such calendar year accurately reflecting the financial condition and the results of operation of the Property, including a complete copy of the Company's annual financial statements certified by the chief financial officer of the Manager, each in accordance with the Accounting Method and containing balance sheets and statements of profit and loss for the Company and the Property in such detail as the Class A Member may request. Each such statement (a) shall be in form and substance consistent with those required of publicly traded real estate companies, (b) shall set forth the financial condition and the income and expenses for the Property for the immediately preceding calendar year and (c) shall be accompanied by a certificate from the chief financial officer of the Manager certifying (A) that such statement is true, correct, complete and accurate and presents fairly the financial condition of the Property and has been prepared in accordance with the Accounting Method and (B) whether there exists a default under this Agreement or any of the Mortgage Loan Documents, and if so, the nature thereof, the period of time it has existed and the action then being taken to remedy it.

6.6 Reports under Mortgage Loan Documents. The Manager shall send to the Class A Member copies of all financial or other reports or written data sent to a Mortgage Lender pursuant to any Mortgage Loan Documents. In addition, with respect to the Properties which are not subject to the Basis Mortgage Loan, the Manager shall send to the Class A Member, on a quarterly basis, the financial information provided to the Mortgage Lender for such quarter or the information that will be used in preparing reports for the Mortgage Lender.

6.7 Reports under Property Management Agreement. The Manager shall send to the Class A Member copies of all reports and statements that any property manager is required to produce or generate pursuant to the requirements under any property or asset management agreement.

6.8 Information Requests. The Manager on behalf of the Company shall provide all information reasonably requested by the Class A Member related to the business and operation of the Company, its Subsidiary(ies) or the Property.

6.9 Class A Member’s Right to Examine. At all times during the term of this Agreement and during the three (3) year period following the expiration or termination of this Agreement, the Class A Member and its members, partners and duly authorized agents, representatives and employees may, upon reasonable prior notice to the Manager (and at the Class A Member’s expense provided that no default or Changeover Event hereunder or default under the Mortgage Loan Documents shall be in effect at the time in question; otherwise at the Manager’s expense), examine, audit and copy, during normal business hours, any and all of the books, records, files, or other information concerning this Agreement, the Property, the Company and its Subsidiary(ies).

6.10 Amendment of Agreement. No provision of this Agreement may be amended, modified, supplemented or waived except in a written instrument signed by the Class A Member and the Class B Member.

6.11 Title to Company Property. All property owned by the Company shall be owned by the Company as an entity and, insofar as permitted by applicable law, no Member shall have any ownership interest in any Company property in its individual name or right, and each Member's Membership Interest shall be personal property for all purposes.

6.12 Subordination of Indemnification Provisions. Notwithstanding any provision hereof to the contrary, any indemnification claim against the Company arising under this Agreement or the laws of the state of organization of the Company shall be fully subordinate to any obligations of the Company arising under the Mortgage Loan Documents (if applicable) or any other loan documents, and shall only constitute a claim against the Company to the extent of, and shall be paid by the Company in monthly installments only from, the excess of net operating income for any month over all amounts then due under the Mortgage Loan Documents and any other loan documents.

SECTION VII
TAX PROVISIONS

7.1 Capital Accounts.

A. A separate Capital Account will be maintained for each Member; provided that, in accordance with Section 4.8 hereof, the Class A Member’s Membership Interest shall be treated as debt for federal income tax purposes and accordingly the Class A Member will not have a Capital Account for tax purposes. Each Member's Capital Account will be increased by (i) the amount of money contributed by such Member to the Company; (ii) the Gross Asset Value of property other than money contributed by such Member to the Company (net of liabilities secured by such contributed property that the Company is considered to assume or take subject to under Section 752 of the Code); (iii) allocations to such Member of Net Profits; and (iv) any items in the nature of income and gain which are specially allocated to the Member pursuant to Section 4.3. Each Member's Capital Account will be decreased by (i) the amount of money distributed to such Member by the Company; (ii) the Gross Asset Value of property other than money distributed to such Member by the Company (net of liabilities secured by such distributed property that such Member is considered to assume or take subject to under Section 752 of the Code); (iii) any items in the nature of deduction and loss that are specially allocated to the Member pursuant to Section 4.3; and (iv) allocations to the account of such Member of Net Losses.

B. In the event of a permitted sale or exchange of an Interest in the Company, the Capital Account of the transferor shall become the Capital Account of the transferee to the extent it relates to the transferred Interest in accordance with Section 1.704-1(b)(2)(iv) of the Treasury Regulations.

C. The manner in which Capital Accounts are to be maintained pursuant to this Section 7.1 is intended to comply with the requirements of Section 704(b) of the Code and the Treasury Regulations promulgated thereunder. If in the opinion of the Company's accountants the manner in which Capital Accounts are to be maintained pursuant to the preceding provisions of this Section 7.1. and related provisions of this Agreement should be modified in order to comply with Section 704(b) of the Code and the Treasury Regulations thereunder, then notwithstanding anything to the contrary contained in the preceding provisions of this Section 7.1. or related provisions of this Agreement, the method in which Capital Accounts are maintained shall be so modified; provided, however, that any change in the manner of maintaining Capital Accounts shall not materially alter the economic agreement between or among the Members. Any such modification may be undertaken by the Manager amending this Agreement in the manner provided in Section 6.6, provided that any requirement that any Member consent to such amendment shall not apply to any amendment undertaken by the Manager pursuant to the authority granted to it under this Section 7.1C.

7.2 Elections. The Manager may make any tax elections for the Company allowed under the Code in its discretion.

7.3 Taxes of Taxing Jurisdictions. To the extent that the laws of any taxing jurisdiction requires, the Company shall withhold and pay over to such taxing jurisdiction any taxes, penalties and/or interest determined under the laws of the taxing jurisdiction to be due with respect to the allocable share of the Company's taxable income attributable to any nonresident Member. Any payments made with respect to the taxable income of such Member shall be treated as a distribution for purposes of Section IV. The Company may, where permitted by the rules of any taxing jurisdiction, file a composite, combined or aggregate tax return reflecting the taxable income of the Company and pay the taxes, interest and/or penalties of some or all of the Members on such income to the taxing jurisdiction, in which case the Company shall inform the Members of the amount of such tax interest and penalties so paid.

7.4 Partnership Representative. To the extent permitted by the Code, the Manager shall be the “Partnership Representative” for the Company pursuant to Section 6223 of the Code. The Manager, while acting as the “Partnership Representative”, shall have the full power and authority, exercisable within its discretion, to take such action and enter into such settlements, compromises or other agreements with the Internal Revenue Service as a result of any audit or examination of the Company's federal income tax returns or regarding any adjustments or changes to any items of the Company's income, losses, deductions or credits proposed by the Internal Revenue Service for any Accounting Year. All such actions and decisions made by the Manager while serving as the “Partnership Representative” shall not require the prior consent or approval of any other Member. The Manager, while serving as the “Partnership Representative”, shall also be entitled to the benefit of the provisions of Sections 5.5 and 5.6. Michael Jacoby shall be the “designated individual” for the purpose of Treasury Regulations Section 301.6223-1(b)(3).

SECTION VIII
RESTRICTIONS ON TRANSFER AND WITHDRAWAL

8.1 General. No Member shall have the right to Transfer his/her/its Interest, or any portion thereof or interest therein, to any Person (including another Member) unless the Transfer is permitted by, and made in strict accordance with, the provisions of this Section VIII. No Member may voluntarily withdraw, resign or retire from the Company without the prior written approval of the Class A Member. Any attempted Transfer or withdrawal by a Member in violation of this Section 8.1. shall be deemed null and void ab initio for all purposes. The provisions of this Section 8.1. shall also apply with the same force and effect to any Assignee as if each reference herein also included a reference to the Assignee unless such reference would be contrary to or frustrate the purposes and intentions behind this Section VIII or the context otherwise requires.

8.2 Members of Record. The Company, the Manager and each other Member, and any other person having business with the Company, need deal only with persons who are Members in accordance with the provisions of this Agreement; they shall not be required to deal with any other Person by reason of any purported Transfer by a Member or by reason of this Agreement. Transferees of all or any portion of an Interest who have not, as to that Interest, been duly admitted as a Substitute Member, including any Assignee, shall not, as to that Interest, be entitled to (i) exercise any Governance Rights or Membership rights; (ii) receive any notices or other communications under this Agreement (including, but not limited to, notices of any consent or approval of the Members requested by the Manager), (iii) give or refuse to give any consent or approval required or permitted under this Agreement or the Act, (iv) vote with respect to, or otherwise participate in the management of the Company to the extent permitted under this Agreement or the Act, (v) inspect or copy the Company's books or records, (vi) demand or request any information available to Members pursuant to the terms of this Agreement or the Act. Further, the Interest so held by any such transferee who has not been duly admitted as a Substitute Member shall not be deemed to be owned by any Member and no signature of any such transferee shall be required to amend this Agreement and his/her/its Percentage shall not be counted for purposes of any provision of this Agreement that specifies a minimum level of Percentages of the Members (or any class of Members) to consent to or approve of any action or decision proposed to be undertaken by the Company or the Manager.

8.3 Nature of Restrictions. Each Member, by such Member's execution of or joining in this Agreement, hereby acknowledges the reasonableness of the restrictions upon transfer contained in Section 8.1. which are intended to be specifically enforceable and which remedy shall be in addition to, and not in lieu of, any other rights or remedies available to the Company and/or its Members under this Agreement, by law or otherwise, all of which shall be cumulative in nature. In the case of a Transfer or attempted Transfer of an Interest in violation of this Agreement, the parties engaging or attempting to engage in such Transfer shall be liable to indemnify and hold harmless the Company, the Manager and the other Members from all costs, liabilities, and damages that any of such indemnified Persons may incur (including, without limitation, incremental tax liability and attorneys' fees and expenses) as a result of such Transfer or attempted Transfer and efforts to enforce the indemnity granted hereby.

8.4 Permitted Transfers; Right of First Refusal; Conditions/Procedure for Permitted Transfers; Admission of Substitute Members.

A. No Transfer of all or part of a Membership Interest by the Class B Member or of any direct or indirect ownership or other economic, profits, voting or other equity interest of any kind in the Class B Member or any constituent shareholder, member or partner thereof shall be made or become effective unless the Transfer is expressly permitted under this Section and until all requirements and conditions stated in this Section, which shall be read and construed as a whole, have been satisfied in full or have been waived by the non-transferring Member(s). To the-fullest extent permitted by law, any Transfer in violation of this Section shall be invalid, ineffective and not enforceable for any purpose. No authorization, consent or waiver applicable to one Transfer shall apply or be deemed to apply to any other Transfer or requested Transfer.

B. The Transfer of a Membership Interest by the Class A Member shall be governed by Section 10 below.

C. Notwithstanding the foregoing, any Transfer (1) expressly permitted under the Mortgage Loan Documents (in each case, under the Mortgage Loan Documents in effect as of the date hereof, or as the permitted Transfer provisions in the Mortgage Loan Documents may be subsequently modified with the approval by the Class A Member) without the consent or approval of the Mortgage Lender and (2) which satisfies all requirements for being a “Permitted Transfer” under the Basis Loan Agreement shall be permitted hereunder; provided, that, as a condition to each such Transfer (other than Public Entity Transfers and Upstream Holder Transfers, as defined in the Basis Loan Agreement, and Transfers under clause (2) of subparagraph (iii) of the definition of “Permitted Transfers” in the Basis Loan Agreement (“Clause (2) Transfers”)) being permitted under this Section 8.4.C, the Class A Member shall receive not less than thirty (30) days prior written notice of such proposed Transfer. For the avoidance of doubt, the following Transfers shall be permitted without the consent of any other party: (a) “Permitted Transfers”, as defined in the Basis Loan Agreement, and (b) Transfers by Michael Jacoby and Alex Topchy that do not result in a direct or indirect Change in Control (as defined in the Basis Loan Agreement) and, in either case, otherwise satisfy the requirements set forth in, and subject to the restrictions contained in, the Basis Loan Agreement.

D. Notwithstanding the provisions of Section 8.4.C. above, except for Public Entity Transfers, Upstream Holder Transfers and Clause (2) Transfers, all conditions stated below must be satisfied or waived in writing by the Class A Member relating to any transferee with respect to a Transfer permitted under Section 8.4.C. above:

(i) the Class A Member has not notified the Class B Member in writing that it has reasonably determined that the transferee is a competitor of any Class A Member or any of its Affiliates in any significant market or activity;

(ii) if an individual, the transferee is a U.S. citizen or resident;

(iii) if a legal entity of any type, the legal entity is formed or organized under the laws of any state of the United States; and

(iv) the transferee and all Affiliates of such transferee are in full compliance with all applicable orders, rules, regulations and recommendations of The Office of Foreign Assets Control of the U.S. Department of the Treasury and are not listed on any restricted list published by the Federal Government of the United States of America, and for a transferee of an interest in the Class B Member, remakes each of the representations of the Class B Member (as the case may be) set forth in Section 3.6.A.

E. To the fullest extent permitted by law, notwithstanding any provision to the contrary contained in this Agreement, no Transfer by a Class B Member shall be made or be effective unless (i) it complies with all applicable requirements and conditions of any Mortgage Loan Document in effect at the time of the Transfer and does not violate them or (ii) the Mortgage Loan which would be violated by such Transfer is being paid off at the time of the subject Transfer. The Manager, on behalf of any Class B Member transferring its Membership Interest, shall, and cause any Affiliate with a Membership Interest to, deliver to the Company and the Class A Member, at least five (5) Business Days prior to the effective date of any Transfer, a written certification stating that (i) any necessary consent of each Mortgage Lender to the Transfer has been obtained (together with a complete copy of each Mortgage Lender’s consent) or (ii) no consent of the Mortgage Lender to the Transfer is required.

F. If a Member Transfers less than all of its Membership Interest in the Company or if all or part of the direct or indirect ownership or other interests in a Member are Transferred:

(i) such Member shall continue to be a Member of the Company, shall be solely and fully liable and responsible for all obligations under this Agreement relating to the Membership Interest that it continues to hold, as well as the Membership Interest that it had Transferred;

(ii) if such Member is a Manager, it shall continue to have the sole and exclusive right to propose Major Decisions and to take other actions required or permitted under this Agreement;

(iii) any transferee of a partial Membership Interest from such Member shall not be admitted as or deemed to be a Member of the Company for any purpose; and

(iv) the Company and the remaining Members shall have no obligation (including for payment of distributions) to the transferor from such Member.

G. Except in connection with a sale or transfer permitted by Section 8.4B, if a Member proposes to Transfer its entire Membership Interest in the Company to another Person as permitted by this Section, the Transfer shall not be completed or effective until all of the requirements stated below have been satisfied:

(i) the transferee has prepared, signed and delivered to the Company and the Class A Member an Assignment and Assumption of Membership Interests in the form of Exhibit H to this Agreement (subject to such reasonable modification) in which (i) the transferring Member assigns its entire Membership Interest in the Company to the transferee, (ii) the transferee assumes all obligations of the transferring Member under the Agreement from and after the effective date of the Transfer, (iii) the transferee receives any approval required by a Mortgage Lender and replaces any obligor Affiliated with the transferring Member (or a creditworthy Affiliate thereof) under any guaranty or indemnity relating to a Mortgage Loan with a person acceptable to each Mortgage Lender, as applicable and (iv) the transferring Member and the transferee agree to pay all costs and expenses (including attorney’s fees) incident to the Transfer, including those incurred by the Company and any non-transferring Member;

(ii) the transferring Member and/or the transferee shall have represented to the Company and the remaining Member(s) that (i) the Transfer will not cause the Company to be treated as an association taxable as a corporation for Federal income tax purposes, (ii) the Transfer will not cause the Company to be treated as a “publicly traded partnership” within the meaning of Section 7704 of the Code and (iii) the Transfer will not violate the Securities Act of 1933, as amended, or any other applicable federal or state securities laws, rules or regulations;

(iii) upon the Transfer of its entire Membership Interest in the Company and the admission of such Member’s transferee as a substitute Member pursuant to this Section, a Member shall be deemed to have withdrawn from the Company; and

(iv) distributions payable on and after the date of the Transfer shall be payable solely to the transferee and the transferring Member shall have no claim to such distributions (unless otherwise provided in any contract or agreement between the transferor and transferee) even if all or a portion of such amount relates to a period prior to the Transfer.

SECTION IX
DISSOLUTION OF COMPANY

9.1 Events Resulting in Dissolution. The Company shall dissolve pursuant to the Delaware Act only if one or more of the following events occurs:

A. The sale of all or substantially all of the Property or its Subsidiary(ies), provided, however, that if such sale is made on the terms that the Company or its Subsidiary(ies) takes a note or other indebtedness of the purchaser for part of the purchase price, no dissolution shall occur until such time as the Company or its Subsidiary(ies) ceases to be the holder of such note or indebtedness or such note or the indebtedness evidenced by such note has been paid in full;

B. The unanimous agreement in writing by the Members to dissolve the Company prior to the Redemption Price having been fully paid, or the decision by the Manager to do so after the Redemption Price has been fully paid;

C. The termination of the legal existence of the last remaining member of the Company or the occurrence of any other event which terminates the continued membership of the last remaining member of the Company in the Company unless the Company is continued without dissolution in a manner permitted by this Agreement or the Delaware Act; or

D. Any other event that requires the Company’s dissolution under the Delaware Act.

9.2 Last Remaining Member. Upon the occurrence of any event that causes the last remaining member of the Company to cease to be a member of the Company or that causes the last managing member to cease to be a member of the Company (other than (i) upon an assignment by the last managing member of all of its limited liability company interest in the Company and the admission of the transferee pursuant to this Agreement, or (ii) the resignation of such managing member and the admission of an additional member of the Company pursuant to this Agreement), to the fullest extent permitted by law, the personal representative of such member is hereby authorized to, and shall, within 90 days after the occurrence of the event that terminated the continued membership of such member in the Company, agree in writing (i) to continue the Company and (ii) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of the Company, effective as of the occurrence of the event that terminated the continued membership of the last remaining member of the Company or the last managing member in the Company.

9.3 Effect of Bankruptcy. Notwithstanding any other provision of this Agreement, the occurrence of a Bankruptcy with respect to a Member shall not cause such Member to cease to be a member of the Company and upon the occurrence of such an event, the Company shall continue without dissolution.

9.4 Winding Up. Upon the dissolution of the Company, the Manager shall wind up the affairs of the Company unless the Manager has dissolved or liquidated, or elect in writing not to do so or in which case the Class A Member shall wind up the affairs of the Company. The Manager who winds up the affairs of the Company is referred to below as the “Authorized Member.” The Members shall continue to receive allocations of Net Profits and Net Losses and distributions of Distributable Cash and Capital Proceeds during the period of liquidation of the Company in the same manner and proportion as though the Company had not dissolved. The Class A Member shall have full right and unlimited discretion to determine in good faith the time, manner and terms of any sale or sales of the Property by the Company or its Subsidiary(ies) pursuant to such liquidation, having due regard for the relevant market and general financial and economic conditions.

9.5 Disposition of Proceeds. Following the satisfaction of all debts and liabilities of the Company and all expenses of liquidation (whether by payment, or reasonable provision for payment thereof), the proceeds of the liquidation and any other funds of the Company shall be distributed in accordance with Section 4.1E after all outstanding Member Loans have been paid in full.

9.6 Final Statements. Within a reasonable time following the completion of the liquidation of the Property by its Subsidiary(ies) and the liquidation of all other assets of the Company, the Authorized Member shall deliver to each of the Members a statement prepared by the Company’s accountants, which shall set forth the assets and liabilities of the Company as of the date of complete liquidation and each Member’s portion of distributions payable pursuant to this Agreement.

9.7 Certificate of Cancellation. Upon the completion of the liquidation of the Company and the distribution of all Company funds, the Authorized Member shall have the authority to execute and file a certificate of cancellation of the certificate of formation of the Company, as well as any and all other documents required to complete the termination of the Company.

SECTION X

RIGHT OF FIRST OFFER OF CLASS A MEMBERSHIP INTEREST

10.1 First Offer Procedures.

A. If the Class A Member desires to sell or transfer its Membership Interest to a purchaser or transferee that is not an Affiliate of the Class A Member (a “Third-Party Transferee”), and no Changeover Event is then in effect, then the Class B Member shall have the rights set forth in this Section 10.1.

B. Prior to completing a sale or transfer to a Third-Party Transferee, the Class A Member (in such capacity, “Offeror”), shall give written notice (“Offer Notice”) to the Class B Member (“Offeree”), which notice shall specify the price for which the Class A Member would be willing to sell its entire Membership Interest in the Company (the “Offer Price”).

C. The Offeree shall have twenty (20) Business Days from the date of receipt of the Offer Notice (“Outside Response Date”) to send a written response (“Response Notice”) to the Offeror setting forth Offeree’s election to purchase Offeror’s entire Membership Interest in the Company for the Offer Price. The Response Notice may not contain any conditions or qualifications to such election. If Offeree fails to deliver a Response Notice within such twenty (20)-Business Day period, then Offeror may, for a period of six (6) months from the Outside Response Date, sell or transfer its Membership Interest on any terms or conditions, provided that the purchase price is not less than ninety percent (90%) of the Offer Price. Following the expiration of such six (6)-month period without the sale or transfer having been made, the provisions of this Section 10.1 shall again apply.

D. Offeree’s delivery of its Response Notice shall constitute its legally binding obligation to complete the purchase described in this Section X and shall not be effective unless the required escrow deposit is delivered within fifteen (15) days from the date of the Response Notice, in an amount equal to ten percent (10%) (the “Deposit”) of the Offer Price. The Deposit shall be delivered to an escrow agent selected by the Class A Member (the “Escrow Agent”). The Escrow Agent shall hold the Deposit in an interest-bearing, segregated account at a federally insured financial institution. If Offeree fails to timely deliver the Deposit as set forth in this subsection (D), then (i) the Response Notice shall be null and void, (ii) Offeror may proceed to sell or transfer its Membership Interest without regard to the provisions of this Section 10.1, and (iii) the Class B Member will have no further rights under this Section 10.1.

E. Offeree shall fix a closing date (“Closing Date”), which must be a business day not later than thirty (30) days following the payment of the Deposit. Offeree shall notify Offeror in writing of the Closing Date not less than five (5) business days prior thereto. If Offeree does not fix the Closing Date within said thirty (30) day period following the payment of the Deposit, then the Closing Date shall automatically be the thirtieth (30^th) day following the payment of the Deposit (or if such day is not a Business Day, the next succeeding Business Day).

F. The Members agree that, on the Closing Date, Offeree shall pay to Offeror the Purchase Price. The Class A Member shall thereupon cease to be a Member of the Company.

G. If Offeree defaults in its obligation to complete the transaction by the Closing Date, Offeror (i.e., the Class A Member) shall be entitled to retain the Deposit of such defaulting Offeree (together with the interest thereon) as liquidated damages, which the Parties acknowledge to be a fair calculation of the damages suffered as a result of Offeree’s default, in lieu of any other legal and equitable remedies, and/or (ii) be entitled to pursue any and all remedies available under this Agreement or through court or other appropriate legal proceedings, whether at law or in equity.

H. Each Member expressly agrees and acknowledges that TIME IS OF THE ESSENCE with respect to all time requirements, delivery and payment dates and other deadlines set forth in this Section 10.1. In that regard, all payments and other actions or documents required to be paid, delivered, received or taken on or prior to a specified date shall be so paid, delivered, received or taken on or prior to the specified or required date unless such date is extended in writing by the Member entitled to such performance or payment, and failure to make such payment or performance by such date shall be a default under this Agreement by such party.

I. All payments required under this Section 10.1, including the Deposit and the required payment on the Closing Date, shall be made in U.S. dollars in immediately available funds and paid through wire transfer. The party entitled to keep the Deposit under the terms of this Section 10.1 shall also be entitled to any interest that was earned on the Deposit.

J. On the Closing Date, Offeror shall convey to Offeree good and marketable title to its Membership Interests, free and clear of all Liens except for those securing Mortgage Loans, (ii) Offeree shall accept the conveyance of Offeror’s Membership Interest from Offeror and assume all obligations with respect to such Membership Interest accruing or arising after the date of the conveyance, and (iii) the parties to the transaction shall each sign and deliver the Assignment and Assumption Agreement in the form of Exhibit H to this Agreement, subject to completion by insertion of names, dates, amounts and other data now blank in the form.

K. Between the date of the Offer Notice and the Closing Date under this Section, the Manager shall conduct the business, operations and financial affairs of the Company and its Subsidiary(ies) only in the ordinary course and consistent with the prior practices of the Company and its Subsidiary(ies) in accordance with this Agreement, the Approved Budget and all other applicable Major Decisions.

L. In connection with a sale to Offeree, any risk of casualty, condemnation or loss prior to the Closing Date shall be borne by Offeree, who shall succeed to all rights of the Company to insurance proceeds (other than loss of rent proceeds allocable to any period prior to the Closing Date) or condemnation awards, without credit or offset against any amounts owed by Offeree to Offeror.

M. In connection with a sale to Offeree, the cost of any new or updated title insurance policy or endorsements to any existing title insurance policy on the Property, in either case desired by Offeree or, if applicable, required by the terms of any Mortgage Loan or new financing, shall be paid by Offeree as its own cost and expense.

N. The cost of any transfer taxes required to be paid in connection with any sale to Offeree under this Section 10.1 shall be paid by Offeree, and in connection with any sale to a Third Party Transferee, shall be paid by Offeror. The payment of the fees and disbursements of the Class A Member’s attorneys in connection with any sale to Offeree under this Section 10.1 shall be paid by Offeree, and in connection with any sale to a Third Party Transferee, shall be paid by Offeror. The cost of any fees or expenses incurred in connection with (i) obtaining the consent of the applicable Mortgage Lender under the Mortgage Loan Documents or (ii) amending the Mortgage Loan Documents to ensure compliance with all applicable requirements and conditions of any Mortgage Loan Documents in effect at the time of the Transfer shall be Company Costs and paid by the Company. All other costs shall be borne by the party who customarily bears such costs in the location where the Property is located.

O. Each Member agrees to cooperate and to take all reasonable actions and execute all documents reasonably necessary or appropriate to facilitate and accomplish the transactions described in or contemplated under this Section 10.1.

SECTION XI

PROCEDURES FOR SALE OF PROPERTY

11.1 Sale of Property After Redemption Date or Upon a Changeover Event.

A. The Class A Member shall have the exclusive right to initiate and complete the procedures for the sale of (i) any or all of the Properties by the applicable Property Owner(s) to a third party described in this Section (“Property Sale Procedures”) at any time after the Redemption Date, or (ii) as to a specific Property or Properties (subject to the provisions of Section 5.6 hereof) upon the occurrence and continuation of a Changeover Event (whether or not the Class A Member has elected to remove the Manager of the applicable Property Owner(s)).

11.2 Sale of Property After the Redemption Date or a Changeover Event.

A. At any time after the Redemption Date or after the occurrence and during the continuation of a Changeover Event, the Class A Member may offer the Property or the Company’s membership interest in its Subsidiary(ies) for sale on behalf of the Company to a Person which is not an Affiliate of the Class A Member at a purchase price and on such other terms and conditions that are “market” (as determined by the Class A Member) in the geographic area in which the Property is located as reasonably determined by the Class A Member and without offering the right to the Class B Member to purchase either the Property, or the Company’s membership interest in its Subsidiary(ies) or the Membership Interests of the Class A Member. The Class A Member or the Company shall obtain prior to the proposed sale an appraisal of the fair market value of the Property from an MAI appraiser (regardless of its employer) which is not an Affiliate of the Class A Member and has appraised at least three properties similar to the Property within such three-year period, and the fair market value of the Property shown in the appraisal (or, if the appraisal states a range for the fair market value of the Property, the low end of such range) shall be deemed to be “market” for purposes of this Section 11.1. For the avoidance of doubt, neither the purchaser nor the appraiser of the Property (or the Company’s membership interest in its Subsidiary) in connection with the Property-Sale Procedures shall be an Affiliate of Class A Member.

B. The Class A Member may offer the Property or the Company’s membership interest in its Subsidiary(ies) for sale either directly or through real estate brokers selected by the Class A Member for a commission and on other terms and conditions that are “market” in the geographic area in which the Property is located as reasonably determined by the Class A Member. The Class A Member shall provide to Class B Member a copy of the executed Purchase Agreement (and any amendments) and notify the Class B Member in writing of the proposed offering price and other terms and conditions of the proposed sale of the Property or the Company’s membership interest in its Subsidiary(ies) and shall use commercially reasonable efforts to keep the Class B Member informed regarding the progress of the sale of the Property or the Company’s membership interest in its Subsidiary(ies). The Class A Member may also elect to cause the Manager to conduct the sale of the Property, in which case the Manager shall conduct such sale in good faith.

11.3 Sale of Property Approved as Major Decision. If the Class A Member has approved the sale of the Property as a Major Decision, the Manager shall offer the Property for sale to any Person (a) at the purchase price and on such other terms and conditions, if any, specified by the Manager as part of such Major Decision or (b) if the Manager has not so set a minimum purchase price or specified any material term or condition, at a purchase price and on other terms and conditions that are “market” as reasonably determined by the Manager and approved by the Class A Member. The Manager may offer the Property for sale either directly or through investment bankers or real estate brokers for a commission.

11.4 Sale and Closing Documents.

A. In connection with any sale of the Property or the Company’s membership interest in its Subsidiary(ies) pursuant to this Section XI, each Member hereby (i) authorizes the Manager to conduct the sale as described in Section X and this Section XI, acting in its capacity as Manager of the Company, to sign any document, make any payment and take any other action on behalf of the Company that such Manager determines is necessary or advisable for the Company to sell the Property or the Company’s membership interest in its Subsidiary(ies) pursuant to this Section XI (provided that the contract of sale executed with respect to a sale occurring pursuant to Section 11.3 has been approved as Major Decision), and (ii) at the request of such Manager and at the expense of the Company, agrees to sign any document and take any other action that such Manager may reasonably request so that the sale of the Property or the Company’s membership interest in its Subsidiary(ies) on behalf of the Company pursuant to this Section XI can be completed successfully. Notwithstanding the foregoing, with respect to any sale described in Section 11.2, unless the Class A Member elects for Manager to conduct such sale, each other instance of “Manager” in this Section 11.4 shall instead refer to “the Class A Member”.

B. Without limiting the general authority granted in subsection A. above, each Member hereby authorizes the Manager to conduct the sale as described in Section X and this Section XI, acting in its capacity as Manager of the Company and on behalf of its Subsidiary(ies), to sign and deliver to prospective purchasers or other Persons or authorize and obtain one or more of the following documents in the name or on behalf of the Company or its Subsidiary(ies) and in such form and containing terms that are “market” (including with respect to representations, warranties and covenants) as such Manager shall approve in connection with the offer and sale of the Property or the Company’s membership interest in its Subsidiary(ies) pursuant to this Section:

(i) Real estate listing and brokerage services and commission agreements with one or more, real estate brokers selected by such Manager in accordance with the requirements of this Section;

(ii) Documents evidencing the selection of a title company approved by the Class A Member to provide title search services, the insurance and related title services;

(iii) Agreements and reports covering environmental, engineering, architectural, survey or other inspections or reviews of the Property;

(iv) Due diligence and other data regarding the Property, its Subsidiary(ies) or the Company requested by a prospective purchaser; provided that such prospective purchaser executes a customary confidentiality agreement, which agreement shall prohibit the disclosure by the prospective purchaser of any confidential information, except for customary exceptions thereto, including, without limitation, to the extent required by law or to potential partners and lenders of such prospective purchaser;

(v) Deed, bill of sale and assignments conveying the Property (including leases) to a prospective purchaser in form customary for such property in the applicable jurisdiction;

(vi) Contract of sale with any prospective purchaser which shall not provide for any financing by the Company or its Subsidiary(ies) except as approved by the Class A Member as a Major Decision;

(vii) Real estate tax transfer, recording and other forms;

(viii) Closing statement showing amounts payable by and to the Company or its Subsidiary(ies) and the prospective purchaser; and

(ix) Such other customary documents as are necessary or appropriate in connection with the sale of real property similar to the Property and improvements in the location of the Property.

C. If the Manager who is authorized to conduct the sale as described in Section X and this Section XI proposes to sign an agreement or contract described in subsection B. above with one of its Affiliates, the terms and conditions of that agreement or contract must be approved by the Class A Member in writing, in their sole discretion, before it shall become effective.

D. Without limiting the general authority given to the Manager who is conducting the sale of the Property in accordance with this Section XI, each Member hereby authorizes such Manager to remove on behalf of the Company or its Subsidiary(ies) and at Company expense any lien, security interest, encumbrance or other charge on the Property to the extent that the Manager determines such removal is necessary or appropriate in connection with the sale of the Property or required under the contract of sale.

E. Each Member agrees that specific performance shall be available to ensure compliance with this Section XI. The Members each agree that any court having jurisdiction over the specific performance remedy shall be entitled to order the appropriate Member or other Person to execute all necessary documents and to further appoint an appropriate Person to be authorized to execute such documents on behalf of the defaulting Member or other Person.

11.5 Sales Proceeds. Upon the sale of the Property pursuant to this Section XI, any net proceeds of the sale shall be deemed to be Capital Proceeds and shall be distributed in accordance with the applicable subsection of Section 4.1.

SECTION XII
MISCELLANEOUS PROVISIONS

12.1 No Agency. Except as provided herein, nothing contained in this Agreement shall be construed so as to create an agency relationship among the Members.

12.2 Integration. This Agreement (including the exhibits appended hereto) sets forth the entire integrated understanding and agreement of the parties with respect to the Company, its business and affairs, and there are no promises, agreements, conditions, understandings, warranties or representations, oral or written, express or implied, among them other than as set forth herein. Every exhibit attached to this Agreement and referred to herein shall be deemed incorporated in this Agreement by this reference.

12.3 Construction. All questions with respect to the construction of this Agreement and the rights and liabilities of the parties hereto shall be determined in accordance with the laws of the State of Delaware. The word "including" when following any general statement or term will not be construed to limit such statement or term to the specific items or matters as provided immediately following such word or to similar items or matters, whether or not non-limiting language such as "without limitation" or words of similar import are used with reference to the word or the similar items or matters, but rather will be deemed to refer to all other items or matters that could reasonably fall within the broadest possible scope of the general statement or term. Any reference to a "state" shall include any territory, possession or other jurisdiction in the United States of America if necessary to carry out the purposes and intentions of this Agreement, including the District of Columbia. Any reference to the word "may" in this Agreement when referring to any action or decision by a Person shall mean such action or decision is not mandatory or required, but rather is in the discretion of such Person so that he/she/it is under no obligation to take such action or make such decision.

12.4 Burden, Benefit. This Agreement is binding upon, and inures to the benefit of, the parties hereto and their respective Representatives, successors and assigns. Notwithstanding the foregoing, nothing herein shall be construed to permit the Transfer of an Interest or any portion thereof or interest therein except in strict compliance with the terms of this Agreement.

12.5 Third Party Reliance. The provisions of this Agreement, including but not limited to Section III hereof, are not intended to be for the benefit of any creditor or other person to whom any debts, liabilities or obligations are owed by (or who otherwise has any claim against) the Company or any of the Members. No such creditor or other person shall obtain any right under any such foregoing provision or shall by reason of such provision make any claim in respect of any debt, liability or obligation (or otherwise) against the Company or any of the Members.

12.6 No Partnership Intended for Nontax Purposes. The Members have formed the Company under the Act, and expressly do not intend hereby to form a partnership under either the Revised Uniform Partnership Act or the Revised Uniform Limited Partnership Act. The Members do not intend to be partners one to another, or partners as to any third party.

12.7 Manner of Execution. This Agreement may be executed in one or more counterparts and/or with separate signature pages and/or at different times, provided all counterparts so executed shall constitute one agreement, binding on all the parties hereto and effective as of the Effective Date even if all of the parties are not a signatory to the original or the same counterpart or have signed on different dates.

12.8 Costs of Enforcement. In the event any party maintains any suit or claim against the other to enforce the terms of this Agreement, the party substantially prevailing in such action (as determined by the court having jurisdiction of such case) shall be entitled to be reimbursed for all of such party's costs and expenses incurred in such suit or claim, including reasonable attorney fees and expert witness fees. Costs and expenses incurred prior to such suit or claim and those incurred in any appeal therefrom, if any, shall be included in the costs of enforcement eligible for reimbursement hereunder.

12.9 Consent to Jurisdiction; Venue. All suits, actions, and proceedings relating to this Agreement may be brought only in the courts of the State of Delaware or in the United States Federal District Court with jurisdiction over matters occurring in the State of Delaware. Each party consents to the nonexclusive personal jurisdiction of the courts described in this section for the purpose of any suit, action, or proceeding. Each party waives any and all objections to venue and to all claims that a court chosen in accordance with this paragraph is improper based on the doctrine of forum nonconveniens.

12.10 Waiver of Right to Trial by Jury. Each party to this Agreement waives any right to a trial by jury in any action brought to enforce the terms of this Agreement.

12.11 Waiver of Action for Partition. Each Member irrevocably waives during the term of the Company any right that he or she may have to maintain any action for partition with respect to the property of the Company.

12.12 Notices. All Notices and other communications permitted or required under this Agreement shall be in writing and shall be delivered: (a) personally, (b) by U.S. certified mail, return receipt requested, or (c) by messenger, overnight courier or similar professional delivery service (collectively "Courier"), as follows:

If to Company or to the Class B Member, to:	c/o Broad Street Realty, Inc. 7250 Woodmont Avenue Suite 350 Bethesda, Maryland 20814

If to Manager, to:	Broad Street Realty, LLC 7250 Woodmont Avenue Suite 350 Bethesda, Maryland 20814

If to the Class A Member, to:	c/o Basis Investment Group 75 Broad Street, Suite 2110 New York, New York 10004

Notice may be sent to such other address(es) and to the attention of such person(s) as any of the foregoing shall designate in a Notice to the others hereunder given not less than five (5) Business Days before such change is to be effective. Notices shall be deemed given on the date (i) delivered personally, (ii) three (3) Business Days after the date deposited with the U.S. Postal Service, U.S. certified mail, or (iii) which is one Business Day after the date deposited with such Courier.

12.13 Further Action/Estoppel Certificates. Each Member, upon the request of the Manager, agrees to perform all further acts and execute, acknowledge, and deliver any documents which may be reasonably necessary, appropriate, or desirable to carry out the provisions of this Agreement, including any estoppel certificates required by any lender or other person having business with the Company.

12.14 Time. Time is and shall be of the essence for all purposes of this Agreement.

12.15 Reference to Members/Assignees. The parties acknowledge that notwithstanding any other provision of this Agreement or the Act to the contrary, the provisions of this Agreement which reference the term "Member(s)" shall also be deemed to include a like reference to "Assignee(s)" unless a specific provision of this Agreement, including Section 8.2, or the Act provides for different rights or obligations of an Assignee or the context otherwise requires and further provided that nothing contained in this Section 12.15 shall extend to any Assignee any Governance Rights or Membership Rights, and the Agreement shall be consistently construed and interpreted to carry out this intention.

12.16 Publicity. The Manager and the Class B Member shall comply with the provisions of Section 10.16 of the Loan Agreement, which is incorporated herein by reference. For purposes of this Section 12.16, the Class A Member shall have the same rights as the “Lender” under such Section 10.16, and references therein to “the Loan Documents” shall be deemed to apply to this Agreement, and references therein to the “Loan” shall be deemed to apply to the transaction governed by this Agreement.

[signature page follows]

IN WITNESS WHEREOF, the undersigned have executed this Agreement effective as of the Effective Date.

MANAGER:

BROAD STREET OPERATING PARTNERSHIP, L.P.

By: Broad Street OP GP, its General Partner

By: /s/ Michael Z. Jacoby

Name: Michael Z. Jacoby

Title: Chief Executive Officer

CLASS A MEMBER:

BIG BSP INVESTMENTS, LLC, a Delaware limited liability company

By: BIG Real Estate PE I, LLC, its Managing Member

By: /s/ Richard Cadigan

Name: Richard Cadigan

Title: Authorized Signatory

CLASS B MEMBER:

BROAD STREET OPERATING PARTNERSHIP, L.P.

By: Broad Street OP GP, its General Partner

By: /s/ Michael Z. Jacoby

Name: Michael Z. Jacoby

Title: Chief Executive Officer

EXHIBIT A

GLOSSARY OF CERTAIN DEFINED TERMS

Accounting Method - shall mean GAAP or the Income Tax Basis.

Accounting Year - shall mean the accounting period used by the Company for federal income tax purposes, including any partial or short tax year.

Act - shall mean the Delaware Limited Liability Company Act, as the same may from time to time be amended or recodified.

Adjusted Deficit Capital Account - shall mean with respect to any Member, the deficit balance, if any, in such Member's Capital Account as of the end of the Accounting Year, after giving effect to the following adjustments:

A. credit to such Capital Account any amount which such Member is obligated to restore under Section 1.704-1(b)(2)(ii)(c) of the Treasury Regulations, as well as any addition thereto pursuant to the next to last sentence of Sections 1.704-2(g)(1) and (i)(5) of the Treasury Regulations, after taking into account thereunder any changes during such year in Company Minimum Gain and in the minimum gain attributable to any Member Nonrecourse Debt; and

B. debit to such Capital Account the items described in Sections 1.704-1(b)(2)(ii)(d)(4), (5) and (6) of the Treasury Regulations.

This definition of Adjusted Deficit Capital Account is intended to comply with the provisions of Treasury Regulations Sections 1.704-1(b)(2)(ii)(d) and 1.704-2, and will be interpreted consistently with those provisions.

Affiliate - shall mean with respect to any Person, (i) any Person directly or indirectly controlling, controlled by, or under common control with such Person, (ii) any Person owning or controlling ten percent (10%) or more of the outstanding voting interests of such Person, (iii) any officer, director, or general partner of such Person, or (iv) any Person who is an officer, director, general partner, trustee, or holder of ten percent (10%) or more of the voting interests of any Person described in clauses (i) through (iii) of this sentence. For purposes of this definition, the term "controls," "is controlled by," or "is under common control with" shall mean the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.

Affiliate Agreement – shall have the meaning set forth in Section 5.4.

Agreement - shall mean this Operating Agreement, as the same may hereafter be amended and/or restated from time to time. Words such as "herein," "hereinafter," "hereof," "hereto," and "hereunder," refer to this Agreement as a whole, unless the context otherwise requires.

Allocated Investment Amount - shall mean, as to certain of the Properties, the amount set forth as such for the applicable Property in Exhibit D to this Agreement.

Exhibit A

Approved Budget – shall mean the initial budget for the Company, its Subsidiary(ies) and the Property, a copy of which is attached as Exhibit G to this Agreement, or such other budget that is approved by the Class A Member in accordance with Section 5.9 of this Agreement.

Approved Leasing Expenses – shall mean actual out-of-pocket expenses incurred by the Company in leasing space at a Property pursuant to leases entered into in accordance with this Agreement, including brokerage commissions and tenant improvements, which expenses (i) are (A) specifically approved by the Class A Member in connection with approving the applicable lease, (B) incurred in the ordinary course of business and on market terms and conditions in connection with leases which do not require the Class A Member’s approval under this Agreement, and the Class A Member shall have received and approved a budget for such tenant improvement costs and a schedule of leasing commissions payments payable in connection therewith, or (C) otherwise approved by the Class A Member in writing, which approval shall not be unreasonably withheld or delayed, and (ii) are substantiated by executed lease documents and brokerage agreements.

Articles – shall mean the Certificate of Formation as filed with DDOS as the same may be amended and/or restated from time to time.

Assignee – shall mean a transferee or assignee of a Member who has not been duly admitted as a Substitute Member.

Avondale/Vista Amount – shall have the meaning set forth in Section 3.1A(i).

Avondale/Vista Funding Conditions – shall have the meaning set forth in Section 3.1A(i).

Bankruptcy – shall mean the occurrence of any event listed in the Act.

Basis Loan Agreement – shall mean that certain Loan Agreement dated as of the Effective Date between BSV Colonial Investor LLC, BSV Lamonticello Investors LLC, BSV Dekalb LLC, BSV Crestview Square LLC, BSV Coral Hills LLC and BSV West Broad Investors LLC, collectively as Borrower, and BIG Real Estate Finance I, LLC, as Lender, as the same may be amended from time to time.

Basis Mortgage Loan – shall mean a Mortgage Loan made to a Property Owner by an Affiliate of the Class A Member.

Basis Mortgage Loan Property – shall mean a Property encumbered by a Basis Mortgage Loan, and Basis Mortgage Loan Properties shall mean all of the Properties encumbered by Basis Mortgage Loans, which Properties are listed in Exhibit E attached hereto.

Business Day – shall mean a day of the year on which banks are not required or authorized to close in the State of Delaware.

Capital Account – shall mean the capital account maintained for each Member in accordance with Section 7.1.

Capital Contribution – shall mean any contribution to the capital of the Company in cash or property by a Member whenever made.

Exhibit A-2

Capital Proceeds – means with respect to: (a) the sale of a Property, the total value of the net proceeds payable or credited first to the applicable Property Owner and then to the Company on account of any such sale. Net proceeds from a sale shall mean the gross proceeds less the sum of: (i) the unpaid principal, accrued interest and expenses under any Mortgage Loan on the Property; (ii) the actual third party brokerage costs incurred by a Property Owner in connection with such sale (but only to the extent such costs are at market rates and customarily paid by the seller of real property in the place where the Property is located); (iii) the actual title policy costs, conveyance taxes, if any, and other incidental out of pocket costs required to be incurred by a Property Owner in connection with such sale (but only to the extent such costs are at market rates and are customarily paid by the seller of real property in the metropolitan Denver area); and (iv) the repayment of principal and accrued interest on any loan from a Member; or (b) a refinancing of the Mortgage Loan, the total proceeds of such refinancing, net of repayment of any prior indebtedness (including unpaid principal and interest of any loan from any Member) and the reasonable and customary costs of obtaining and recording such refinancing.

Capital Transaction - shall mean the sale, exchange, financing, refinancing, condemnation, destruction or other disposition of one or more of the Properties (including, without limitation, the refinancing of any Mortgage Loan). A Capital Transaction may be either an Interim Capital Transaction or a Final Capital Transaction.

Changeover Event – shall have the meaning set forth in Section 5.6.

Class A Member – shall mean the Person signing this Agreement as the Class A Member, and any Person hereafter duly admitted to the Company as a Substitute Member who has acquired (or otherwise succeeded to) the Interest of a Class A Member, in their individual or collective capacity(ies), as the context requires.

Class A Member Redemption Fee – shall mean, with respect to any portion of the Class A Member’s Capital Contributions returned to the Class A Member (other than any portion of the Class A Return capitalized into the Class A Member’s Capital Contributions), an amount equal to one half of one percent (0.5%) of the portion of the Class A Member’s Capital Contributions so returned, such amount to be treated as additional interest for tax purposes.

Class A Return – shall mean at any date an amount equal to a cumulative annual return of 14% (i.e., a cumulative monthly return of 1.167%), (compounded on a monthly basis, and on the basis of the number of days elapsed and a 360-day year), on each dollar of the Class A Member Capital Contributions pursuant to Section 3.1, from the first day that such dollar is contributed to the Company until the date that any such dollar is returned to the Class A Member pursuant to Section 4.1. All Class A Member Capital Contributions and distributions to the Class A Member made pursuant to this Agreement on or before the fifteenth (15^th) day of any calendar month shall be deemed to have been made on the first day of such calendar month, and all Class A Member Capital Contributions and distributions to the Class A Member made pursuant to this Agreement after the fifteenth (15^th) day of any calendar month shall be deemed to have been made on the first day of the next succeeding calendar month. For the avoidance of doubt, the Enhanced Class A Return, and not the Class A Return, shall apply to Capital Contributions by the Class A Member made pursuant to Section 3.2.

Class B Member – shall mean Broad Street Operating Partnership, L.P., and any Person hereafter duly admitted to the Company as a Substitute Member who has acquired (or otherwise succeeded to) the Interest of the Class B Member.

Close Associate - shall mean a person who is widely and publicly known to maintain an unusually close relationship with a Senior Foreign Political Figure, and includes a person who is in a position to conduct substantial U.S. and non-U.S. financial transactions on behalf of the Senior Foreign Political Figure.

Exhibit A-3

Code – shall mean the Internal Revenue Code of 1986, as amended and in effect from time to time. Any reference to a specific section of the Code shall be deemed to include any corresponding section of any future recodification or enactment of the federal income tax law.

Company – shall mean Broad Street BIG First OP LLC, a limited liability company formed under the laws of the State of Delaware, as it may be constituted from time to time and any successor.

Company Costs – shall mean all of the costs and expenditures of any kind and payments thereof made or to be made by the Company or its Subsidiary(ies) with respect to its operations and maintenance which are specified or reflected in the Approved Budget then in effect or hereafter approved by Class A Member as a Major Decision or otherwise expressly permitted or required under the terms of this Agreement.

Company Minimum Gain – shall have the meaning set forth in Section 1.704-2(d) of the Treasury Regulations as if the reference therein to a partnership instead referred to a limited liability company taxable as a partnership for federal income tax purposes.

Control, Controlling and Controlled by – shall mean the ability, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise, to direct or cause the direction of the management and policies of the business and affairs of a Person (including by being a general partner, a managing member, a manager, an officer or a director of the Person in question) by reason of the ownership of beneficial interests, by contract or otherwise.

DDOS – shall mean the Delaware Department of State, and any successor thereto.

Deposit Bank – shall mean Wells Fargo Bank, N.A. or another financial institution selected by the Manager.

Depreciation – shall mean, for each Accounting Year, an amount equal to the depreciation, amortization, or other cost recovery deduction allowable with respect to an asset for such Accounting Year, except that if the Gross Asset Value of an asset differs from its adjusted basis for federal income tax purposes at the beginning of such Accounting Year, Depreciation shall be an amount which bears the same ratio to such beginning Gross Asset Value as the federal income tax depreciation, amortization, or other cost recovery deduction for such Accounting Year bears to such beginning adjusted tax basis; provided, however, that if the adjusted basis for federal income tax purposes of an asset at the beginning of such Accounting Year is zero, Depreciation shall be determined with reference to such beginning Gross Asset Value using any reasonable method selected by the Manager.

Distributable Cash – shall mean, for any Accounting Year, the Company’s cash flow from the Property Owners’ ongoing operations, less reserves for current and anticipated future operating expenses, debt service, capital expenditures, acquisitions, and other contingencies, as determined by the Manager in its discretion, which is available for distribution to the Members in the discretion of the Manager. Such term shall not include cash or property which constitutes Capital Proceeds. For purposes of this Agreement, cash flow from ongoing operations will exclusively be derived from cash flow distributions from the Holding Companies and the Property Owners.

Distribution Date – shall mean, for the Class A Member, the fifth (5^th) day of each calendar month, beginning in February, 2020, or if such day is not a Business Day, the next succeeding Business Day. For the Class B Member, there is no specific Distribution Date and the timing of distributions to the Class B Member shall be at the Manager’s discretion.

Exhibit A-4

Distribution Suspension Event – shall mean (a) a default by any Property Owner under the Mortgage Loan Documents for the Property owned by it or a default by the Manager, the Class B Member or the Sponsor Principal under this Agreement, the Guaranty or the Environmental Indemnity, subject to any applicable notice and cure rights, (b) the occurrence of a “Guarantor Debt Default Trigger Event” (as defined in the Basis Loan Agreement), until such time that a “Guarantor Debt Default Trigger Cure Event” (as defined in the Basis Loan Agreement) occurs with respect to such Guarantor Debt Default Trigger Event (provided that no other Guarantor Debt Default Trigger Event shall have occurred and is continuing), or (c) the Yield to Investment Ratio equals less than the Distribution Suspension Percentage as of the end of any calendar quarter. If a Distribution Suspension Event under clause (c) above occurs, it shall be deemed to continue in effect until such time as the Yield to Investment Ratio is greater than or equal to the Distribution Suspension Percentage as of the end of two (2) successive calendar quarters. Notwithstanding the foregoing, clause (c) shall not apply if at the applicable time, the Class B Member makes a Capital Contribution to the Company in an amount sufficient to cause the Yield to Investment Ratio, after a distribution to the Class A Member of the amount of such Capital Contribution pursuant to Section 4.1D hereof as if such Capital Contribution were an Interim Capital Transaction, to be not less than the Distribution Suspension Percentage.

Distribution Suspension Percentage – shall mean (a) 7.5% from the date of this Agreement until the day immediately prior to the first anniversary of the date of this Agreement, (b) 8% from the first anniversary of the date of this Agreement until the day immediately prior to the second anniversary of the date of this agreement, and (c) 8.5% from and after the second anniversary of the date of this Agreement.

Eagle Bank Loan Documents – shall have the meaning set forth in the Basis Loan Agreement.

Effective Date – shall mean the date of this Agreement.

Emergency Costs – shall have the meaning set forth in Section 5.9.F.

Enhanced Class A Return – shall mean at any date an amount equal to a cumulative annual return equal to the Enhanced Class A Return Rate on each dollar of the Class A Member Capital Contribution pursuant to Section 3.2.C(ii) from the first day that such dollar is contributed to the Company until the date that such dollar is returned to the Class A Member pursuant to Section 4.1, multiplied by the actual number of days elapsed in the period for which the calculation is being made, which calculation shall be based on a 360 day year. For the purposes of determining the Enhanced Class A Return, all contributions and distributions made pursuant to this Agreement shall be deemed to have been made as of the first day of the calendar month in which such contribution or distribution was made.

Enhanced Class A Return Rate – shall mean a per annum rate equal to 20% (compounded monthly).

Enhanced Rate Differential – shall mean the portion of any payment of the Enhanced Class A Return attributable to the difference between the Enhanced Class A Return Rate and 14%.

Entity – shall mean a Person other than a natural Person.

Environmental Indemnity – shall mean that certain Environmental Indemnity Agreement, dated on or about the date hereof, executed by Sponsor Principal in favor of the Class A Member.

Exhibit A-5

Fair Market Value – for the Interest of a Member subject to purchase under this Agreement (“Subject Interest”) shall mean and refer to the price which would be paid by a willing buyer to a willing seller in an arms’ length transaction for the purchase of the Subject Interest, free and clear of any option, call, contract commitment, demand, lien, charge, security interest or encumbrance of any kind whatsoever other than this Agreement as such price may be mutually determined by the Company and the interested Member, or, if the interested Member and the Company cannot mutually agree upon such price within fifteen (15) days after any event triggering a purchase of the Subject Interest pursuant to this Agreement, the Fair Market Value of the Subject Interest shall be determined as follows: the Company and the interested Member shall promptly appoint an appraiser, who or which shall determine mutually the Fair Market Value of the Subject Interest for purposes of an all-cash sale; provided, however, that, in the event the two (2) appraisers cannot agree upon the Fair Market Value of the Subject Interest, the two (2) appraisers shall together appoint a third (3^rd) appraiser to appraise the Subject Interest. All appraisers appointed hereunder shall be qualified by experience and ability to appraise the Subject Interest; and the fees and other costs of each of the first two (2) appraisers shall be borne by the Company or the interested Member appointing each such appraiser, with the fees and other costs of the third (3^rd) appraiser being shared equally by the Company and the interested Member. The Fair Market Value determined by the first two (2) appraisers or the third (3^rd) appraiser, as the case may be, shall be used to determine the purchase price of the Subject Interest; provided, however, that, if the Fair Market Value determined by the third (3^rd) appraiser is more than the higher of the first two (2) appraisals, the higher of the first two (2) appraisals shall govern; and provided, further, that if the Fair Market Value determined by the third (3^rd) appraiser is less than the lower of the first two (2) appraisals, the lower of the first two (2) appraisals shall govern. In determining the Fair Market Value for a Subject Interest pursuant to this Agreement, the Company and the interested Member or any appraiser appointed hereunder (as the case may be) shall assume an all-cash sale with respect to such Subject Interest based on that Member’s right to share in future distributions from the Company and shall take into account any “minority ownership discounts” and/or “lack of marketability discounts” in valuing such Subject Interest.

Final Capital Transaction – shall mean a Capital Transaction resulting in the sale or other disposition of all of the Properties (or of the last remaining Property).

Financial Rights – shall mean the right to share in allocations of Profits and Losses of the Company (and any separately stated items thereof), and distributions from the Company.

First Extension Term – shall mean, if applicable, the period beginning on January 1, 2023 and ending on December 31, 2023.

Fiscal Year – shall mean the 12-month period ending December 31 of each year; provided that the initial Fiscal Year shall be the period beginning on the Effective Date and ending on December 31 of the same year and the last Fiscal Year shall be the period beginning on January 1 of the calendar year in which the final liquidation, dissolution and termination of the Company is completed and ending on the date that such final liquidation, dissolution and termination is completed. To the extent any computation or other provision of the Agreement provides for an action to be taken on a Fiscal Year basis, an appropriate proration or other adjustment shall be made in respect of the initial and final Fiscal Years to reflect that such periods are less than full calendar year periods.

GAAP – shall mean generally accepted accounting principles, consistently applied.

Governance Rights – shall mean all rights of a Member other than Financial Rights and the right to assign Financial Rights.

Gross Asset Value – shall means with respect to any asset, the asset’s adjusted basis for federal income tax purposes, except as follows:

Exhibit A-6

(i) the initial Gross Asset Value of any asset contributed by a Member to the Company shall be the gross Fair Market Value of such asset, as determined by the contributing Member and the Manager;

(ii) the Gross Asset Values of all Company assets shall be adjusted to equal their respective gross Fair Market Values, as determined by the Manager as of the following times: (a) the acquisition of an additional interest by any new or existing Member in exchange for more than a de minimis contribution of property (including money); (b) the distribution by the Company to a Member of more than a de minimis amount of property as consideration for an Interest; and (c) the liquidation of the Company within the meaning of Treasury Regulation Section 1.704-1(b)(2)(ii)(g); provided, however, that adjustments pursuant to clauses (a) and (b) above shall be made only if the Manager determines that such adjustments are necessary or appropriate to reflect the relative economic interests of the Members in the Company;

(iii) the Gross Asset Value of any Company asset distributed to any Member shall be adjusted to equal the gross Fair Market Value of such asset on the date of distribution as determined by the distributee and the Manager, provided that, if the distributee is a Manager, the determination of the Fair Market Value of the distributed asset shall require the consent of the other Manager, or if there is only Manager then serving, then with the approval of the Class A Member; and

(iv) the Gross Asset Values of Company assets shall be increased (or decreased) to reflect any adjustments to the adjusted basis of such assets pursuant to Code Section 734(b) or Code Section 743(b), but only to the extent that such adjustments are taken into account in determining Capital Accounts pursuant to Treasury Regulation Section 1.704-1(b)(2)(iv)(m); provided, however, that Gross Asset Values shall not be adjusted pursuant to this definition to the extent the Manager determines that an adjustment pursuant to subparagraph (ii) of this definition is necessary or appropriate in connection with a transaction that would otherwise result in an adjustment pursuant to this subparagraph (iv).

If the Gross Asset Value of an asset has been determined or adjusted pursuant to subparagraph (i), (ii) or (iv) of this definition, then such Gross Asset Value shall thereafter be adjusted by the Depreciation taken into account with respect to such asset for purposes of computing Net Profits and Net Losses.

Guaranty – shall mean that certain Guaranty of Recourse Obligations, dated on or about the date hereof, executed by Sponsor Principal in favor of the Class A Member.

Immediate Family Member – shall mean the parents, siblings, spouse, children and in-laws of a Senior Foreign Political Figure.

Income Tax Basis – shall mean the income tax basis of accounting, consistently applied.

Interest – shall mean for a Member the Membership Interest of that Member and, in case of an Assignee, shall mean only Financial Rights.

Interim Capital Transaction – shall mean a Capital Transaction other than a Capital Transaction resulting in the sale or other disposition of all of the Properties (or of the last remaining Property).

Leasing Reserve Account – shall have the meaning set forth in Section 3.1A(i).

Manager – shall mean, initially, the Class B Member.

Exhibit A-7

Material Agreement – shall mean all agreements entered into by the Company, any Property Owner or any Holding Company requiring the payment of more than $250,000 annually and which is not cancelable without penalty or premium on no more than thirty (30) days notice.

Material Lease – shall mean means any lease which (i) individually or in the aggregate with respect to the same tenant and its Affiliates, covers at least ten thousand (10,000) square feet of the total space of a particular Property (inclusive of expansion options), (ii) is for a term longer than ten (10) years (inclusive of renewal options), (iii) has a gross annual rent of less than ninety (90%) percent of the existing rental rates for leases being replaced, (iv) wholly or partially replaces an “Anchor Tenant Lease” (as such term is defined in the Basis Loan Agreement) (v) is to an Affiliate of the Class B Member or the Sponsor, or (vi) grants the tenant thereunder a right or an option to purchase the applicable Property or a right of first refusal to purchase the applicable Property.

Member(s) – shall mean the Person(s) signing this Agreement as Members and any Substitute Member(s) hereafter admitted, in their individual or collective capacity(ies), as the context requires. Members shall be classified as the Class A Members and the Class B Members.

Member Nonrecourse Debt Minimum Gain – means an amount, with respect to each Member Nonrecourse Debt, equal to the Company Minimum Gain that would result if such Member Nonrecourse Debt were treated as a Nonrecourse Liability determined in accordance with Section 1.704-2(i)(3) of the Treasury Regulations as if the reference therein to a partner instead referred to a member of a limited liability company taxable as a partnership for federal income tax purposes.

Member Nonrecourse Debt – shall have the meaning set forth in Section 1.704-2(b)(4) of the Regulations as if the reference therein to a partner instead referred to a member of a limited liability company taxable as a partnership for federal income tax purposes.

Member Nonrecourse Deductions – has the meaning set forth in Sections 1.704-2(i)(1) and 1.704-2(i)(2) of the Treasury Regulations as if the reference therein to a partner instead referred to a member of a limited liability company taxable as a partnership for federal income tax purposes.

Membership Interest – shall mean all of the right, title and interest of a Member in the Company of every nature, kind and description, namely a Member’s Financial Rights and Governance Rights, including: (i) the right to participate in the management of the Company such as by giving consents, voting or approving actions of the Company, to the extent permitted under the terms of this Agreement or the Act; (ii) the right to access to information concerning the Company; and (iii) any other privileges or benefits to which such Member may be entitled under this Agreement and/or under the Act.

Minimum Multiple Amount – shall mean, as of any computation date, (a) the product of (i) the aggregate amount of Capital Contributions made by the Class A Member pursuant to Sections 3.1 and 3.2 hereof and (ii) 0.4, less (b) the aggregate amount of Class A Return payments previously or then made to the Class A Member hereunder. In making this calculation, payments of fees and reimbursements to the Class A Member, the Class A Member Redemption Fee and the Enhanced Rate Differential shall be disregarded and such items shall not affect the Minimum Multiple Amount.

Mortgage Lender – shall mean a lender which has made a first mortgage loan encumbering an individual Property, and any subsequent first mortgage lender with respect to such Property following a refinancing Capital Transaction.

Mortgage Loan – shall mean the first mortgage loan secured by a Property made by a Mortgage Lender, and any subsequent first mortgage loan secured by such Property.

Exhibit A-8

Mortgage Loan Documents – shall mean all documents relating to and memorializing the terms and conditions of a Mortgage Loan.

MVB Bank Loan Documents – shall have the meaning set forth in the Basis Loan Agreement.

Net Invested Capital – shall mean, as of any given day, a Member’s total Capital Contributions (exclusive of additional Capital Contributions made by the Class A Member pursuant to Section 3.2) to date, less all amounts actually distributed to that Member as Capital Proceeds under Sections 4.1D(iv), (v) and (vi) and 4.1E(iii). If the Interest of any Member is transferred in accordance with the terms of this Agreement, the transferee shall succeed to the Net Invested Capital balance of the transferor to the extent the Net Invested Capital balance relates to the Interest transferred.

Net Profits and Net Losses – shall mean for each Accounting Year of the Company an amount equal to the Company’s net taxable income or loss for such year as determined for federal income tax purposes in accordance with the accounting method and rules used by the Company and in accordance with Section 703(a) of the Code (for this purpose, all items of income, gain, loss, or deduction required to be stated separately pursuant to Code Section 703(a)(1) shall be included in taxable income or loss), with the following adjustments:

(i) any items of income, gain, loss and deduction specially allocated to Members pursuant to Section 4.3 shall not be taken into account in computing Net Profits or Net Losses;

(ii) any income of the Company that is exempt from federal income tax and not otherwise taken into account in computing Net Profits and Net Losses (pursuant to this definition) shall be added to such taxable income or loss;

(iii) any expenditure of the Company described in Section 705(a)(2)(B) of the Code or otherwise treated as a Code Section 705(a)(2)(B) expenditure under Treasury Regulation Section 1.704-1(b)(2)(iv)(I) (generally relating to items not otherwise taken into account in computing taxable income or loss) and not otherwise taken into account in computing Net Profits and Net Losses (pursuant to this definition) shall be subtracted from such taxable income or loss;

(iv) in the event the Gross Asset Value of any Company asset is adjusted pursuant to clause (ii) or (iii) of the definition of Gross Asset Value, the amount of such adjustment shall be taken into account as gain or loss from the disposition of such asset for purposes of computing Net Profits and Net Losses;

(v) gain or loss resulting from any disposition of any Company asset with respect to which gain or loss is recognized for federal income tax purposes shall be computed with reference to the Gross Asset Value of the asset disposed of, notwithstanding that the adjusted tax basis of such asset differs from its Gross Asset Value;

(vi) in lieu of the depreciation, amortization and other cost recovery deductions taken into account in computing such taxable income or loss, there shall be taken into account Depreciation for such Accounting Year; and

(vii) to the extent an adjustment to the adjusted tax basis of any Company asset pursuant to Section 734(b) of the Code or Section 743(b) of the Code is required pursuant to Section 1.704-1(b)(2)(iv)(m)(4) of the Treasury Regulations to be taken into account in determining Capital Accounts as a result of a distribution other than in liquidation of an Interest, the amount of such adjustment shall be treated as an item of gain (if the adjustment increases the basis of the asset) or loss (if the adjustment decreases the basis of the asset) from the disposition of the asset and shall be taken into account for purposes of computing Net Profits or Net Losses.

Exhibit A-9

Non-Basis Loan Property – shall mean a Property that is not a Basis Mortgage Loan Property, and Non-Basis Loan Properties shall mean any or all of the Properties that are not Basis Mortgage Loan Properties,

Nonrecourse Deductions – shall have the meaning set forth in Section 1.704-2(b)(1) of the Regulations.

Nonrecourse Liability – shall have the meaning set forth in Section 1.704-2(b)(3) of the Regulations.

Notice – shall mean notice given in the manner provided in Section 12.12.

Operating Account – shall have the meaning set forth in Section 4.9.

Percentage(s) – shall mean, as to a Member, the percentage set forth opposite the Member’s name on the Schedule. An Assignee shall have the same Percentage as the Percentage of the Member whose Interest was acquired by such Assignee, to the extent of the Interest so acquired.

Permitted Investment – shall mean money market, checking or savings accounts at a federally insured financial institution.

Person – shall mean an individual, trust, estate, or any incorporated or unincorporated organization.

Property – shall have the meaning set forth in Section 2.2.

Property Owner – shall mean a direct or indirect subsidiary of the Company which owns a Property and its Permitted Successors, and Property Owners shall mean all of such entities collectively.

Redemption Date – shall mean the earlier of (i) January 1, 2023, subject to extension pursuant to Sections 4.2D and E and (ii) the date on which the Basis Mortgage Loan is paid in full.

Redemption Price – shall have the meaning set forth in Section 4.2.

Representative – shall mean the guardian of the property, attorney-in-fact under a durable power of attorney, personal representative, administrator, trustee in bankruptcy or other duly authorized legal representative of a Member.

Second Extension Term – shall mean, if applicable, the period beginning on January 1, 2024 and ending on December 31, 2024.

Security Contracts – shall mean (i) that certain Vendor Service Agreement dated as of July 12, 2019 between BSV Avondale LLC and Sitruc Consulting Group LLC, (ii) that certain Vendor Service Agreement dated as of July 12, 2019 between BSV Highlandtown LLC and Eagle Protection Services and (iii) that certain Vendor Service Agreement dated as of August 19, 2019 between BSV Hollinswood LLC and Sitruc Consulting Group LLC; in each case, as the same may be amended from time to time.

Exhibit A-10

Senior Foreign Political Figure – shall mean a senior official of a major non-U.S. political party or a senior executive of a government-owned corporation not organized within the U.S. In addition, a “Senior Foreign Political Figure” includes any corporation, business or other entity that has been formed by or for the benefit of a Senior Foreign Political Figure.

SPE Provisions – shall mean all of the representations, warranties and covenants set forth in Exhibit B.

Sponsor Principal – shall mean Michael Jacoby.

Subsidiary – shall mean any direct or indirect subsidiary of the Company, including, without limitation, the Property Owners, and each of their respective Permitted Successors.

Substitute Member – shall mean a Person who has been duly admitted as a Member of the Company in accordance with the provisions of this Agreement.

Transfer or Transferred – shall mean any sale, assignment, gift, bequest, pledge, encumbrance, hypothecation, or other transfer undertaken by any means, including inter vivos or testamentary disposition, by operation of law (other than bankruptcy) or otherwise, of any property or interest.

Treasury Regulations – shall include proposed, temporary and final regulations promulgated under the Code as of the Effective Date and the corresponding sections of any regulations subsequently issued that amend or supersede such regulations.

Underwritten Annual Net Cash Flow – shall be equal to operating income minus operating expenses for the Properties, during such period and adjusted as follows:

(i) Operating income will be adjusted: (A) subject to clause (F) hereof, to include only fixed rents based on leases in place for tenants who are in occupancy, open for business and paying rent; (B) to include percentage rent but only to the extent it is determined by the Class A Member to be stabilized and recurring; (C) to exclude rents from temporary or month to month tenants, provided, however, that such income will be included only to the extent it is determined by the Class A Member to be stabilized and recurring; (D) to exclude rents from tenants expiring in the next 90 days (from the date of determination), unless such tenant has renewed or it is determined by the Class A Member in its discretion that such tenant is likely to renew; (E) to exclude rents from tenants operating under bankruptcy protection, unless each such tenant has affirmed its Lease in the subject bankruptcy proceeding; (F) to exclude rents from any tenant which is not in occupancy and operating its business; provided, however, that for the purposes of this Agreement, other than in connection with (i) an extension of the term pursuant to Section 4.2D or 4.2E hereof and (ii) determining whether a Changeover Event under Section 5.6A(viii) has occurred, rents attributable to any executed Lease which has been approved by the Class A Member in writing (to the extent that the Class A Member’s approval is required pursuant to the terms of this Agreement) shall be included in operating income notwithstanding that the tenant thereunder might not yet be in occupancy and operating its business therein, provided that (a) the subject tenant has irrevocably and unconditionally accepted delivery and possession of its demised premises, (b) if the subject tenant has an early termination right pursuant to its Lease that has not expired as of the date of the calculation, rents shall be excluded only for the period after the date on which termination pursuant to the next applicable termination right would occur, assuming that such termination right is exercised, and (c) the subject tenant is irrevocably and unconditionally obligated to commence paying the rent required under its Lease within six (6) months from the date the subject Lease is executed; (G) to exclude rents from any tenant which is an affiliate of Borrower; (H) to exclude rents from any tenant which is more than one month delinquent in payment of rent; (I) to mark any above market leases to market rents; (J) to reflect any rent adjustments or cancellation option in any leases; (K) to include reimbursements not in excess of corresponding expense items, based on such trailing 12 month period; (L) to include other income on a case-by-case basis but only to the extent it is determined by the Class A Member to be both stabilized and recurring; and (M) a vacancy and credit loss allowance equal to the greater of (1) the actual weighted average vacancy and/or credit loss for all of the Properties, and (2) the market weighted average vacancy and/or credit loss for all of the Properties; and

Exhibit A-11

(ii) Operating expenses will be adjusted to reflect: (A) the greater of (1) the actual expenses for the trailing 12 month period (except real estate taxes, ground rent (if applicable), insurance, and utilities inflated by 3%, which will be included at their stabilized, recurring levels), and (2) the average actual annual expenses over the past three years but excluding any non-recurring items and capital expenses; (B) a normalized allowance for costs of free rent and downtime; (C) tenant improvement and leasing commissions equal to $0.82 per occupied square foot per annum; (D) a reserve for capital expenses equal to at least $0.20 per square foot of rentable space per annum; (E) a management fee equal to the greater of the actual management fee or 3% of effective gross income; and (F) other adjustments as determined by the Class A Member in its sole but reasonable discretion consistent with its due diligence findings and prevailing market conditions.

In determining Underwritten Annual Net Cash Flow, all pro forma adjustments to revenue and expenses shall be approved by the Class A Member in its sole but reasonable discretion.

Yield to Investment Ratio – shall mean as of any date, the ratio (expressed as a percentage) calculated by the Class A Member of (i) the Underwritten Annual Net Cash Flow for the twelve (12) month period ending with the most recently completed calendar month to (ii) the sum of a) the Class A Member Capital Contribution, b) any unpaid Class A Return and c) the outstanding principal balance of the Mortgage Loan as of such date.

Exhibit A-12

EXHIBIT B

SPE PROVISIONS

1. SPE Provisions. These SPE Provisions are hereby incorporated into this Agreement by this reference as if the same were fully set forth in this Agreement. The parties hereto agree to be bound by, and not to take any action in circumvention of, the SPE Provisions. All other terms used, but not defined, in these SPE Provisions, shall have the meanings ascribed to them in the Mortgage Loan Documents.

2. SPE Provisions Prevail. In the event of any conflict between the terms of these SPE Provisions and any other provision set forth in this Agreement or in any other organizational document of the Company, the terms set forth in these SPE Provisions shall prevail.

3. Third Party Beneficiary. For so long as any Mortgage Loan or any portion thereof remains outstanding, the Mortgage Lender thereunder shall be an intended third party beneficiary of this Agreement with respect to these SPE Provisions.

4. No Amendment. For so long as any Mortgage Loan or any portion thereof remains outstanding, the Company shall not amend, terminate or otherwise alter the provisions of these SPE Provisions without the Mortgage Lender’s prior written consent.

5. Separateness Covenants. Notwithstanding any provision of this Agreement or of any other organizational document of the Company to the contrary, so long as any Mortgage Loan or any portion thereof remains outstanding, unless expressly permitted under the applicable Mortgage Loan Documents or expressly approved by the applicable Mortgage Lender in writing, at all times prior to, on and after the date hereof, the Company:

(a) was, is and will be organized solely for the purpose set forth in Section 2.2;

(b) has not been, is not, and will not be engaged, in any business unrelated to the purpose set forth in Section 2.2;

(d) has not engaged, sought or consented to, and will not engage in, seek or consent to, any dissolution, winding up, liquidation, consolidation, merger, sale of all or substantially all of its assets, transfer of membership interests or amendment of its certificate of formation or operating agreement with respect to the matters set forth in these SPE Provisions;

(e) has not failed, and will not fail, to correct any known misunderstanding regarding the separate identity of the Company and has not and shall not identify itself as a division of any other Person;

(f) has maintained and will maintain its accounts, books and records separate from any other Person and has filed and will file its own tax returns, except to the extent that it has been or is required to file consolidated tax returns by law;

(g) has maintained and will maintain its own records, books, resolutions and agreements;

Exhibit B

(h) has not commingled, and will not commingle, its funds or assets with those of any other Person and (ii) has not participated and will not participate in any cash management system with any other Person;

(i) has held and will hold its assets in its own name;

(j) has conducted and shall conduct its business in its name or in a name franchised or licensed to it by an entity other than an Affiliate of itself, or of any Property Owner, except for business conducted on behalf of itself by another Person under a business management services agreement that is on commercially reasonable terms, so long as the manager, or equivalent thereof, under such business management services agreement holds itself out as an agent of the Company;

(k) has maintained and will maintain its books, bank accounts, balance sheets, financial statements, accounting records and other entity documents separate from any other Person and has not permitted, and will not permit, its assets to be listed as assets on the financial statement of any other entity except as required by the Accounting Method; provided, however, that appropriate notation shall be made on any such consolidated statements to indicate its separateness from such Affiliate and to indicate that its assets and credit are not available to satisfy the debt and other obligations of such Affiliate or any other Person and such assets shall be listed on its own separate balance sheet;

(l) has paid and will pay its own liabilities and expenses, including the salaries of its own employees, out of its own funds and assets, and has maintained and will maintain a sufficient number of employees in light of its contemplated business operations;

(m) has observed and will observe all limited liability company formalities;

(n) has had no and will have no Indebtedness (including loans, whether or not such loans are evidenced by a written agreement);

(o) has not assumed or guaranteed or become obligated for, and will not assume or guarantee or become obligated for, the debts of any other Person and has not held out and will not hold out its credit as being available to satisfy the obligations of any other Person except as permitted pursuant to this Agreement;

(p) has not acquired and will not acquire obligations or securities of its partners, members or shareholders or any other Affiliate;

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

(r) has maintained and used, now maintains and uses, and will maintain and use, separate stationery, invoices and checks bearing its name, which stationery, invoices, and checks utilized by the Company or utilized to collect its funds or pay its expenses have borne, shall bear its own name and have not borne and shall not bear the name of any other entity unless such entity is clearly designated as being the Company’s agent;

(s) has not pledged and will not pledge its assets for the benefit of any other Person;

(t) has held itself out and identified itself, and will hold itself out and identify itself, as a separate and distinct entity under its own name or in a name franchised or licensed to it by an entity other than an Affiliate of itself or of Borrower and not as a division or part of any other Person, except for services rendered under a business management services agreement with an Affiliate that complies with the terms contained in the clause immediately below, so long as the manager, or equivalent thereof, under such business management services agreement holds itself out as an agent of the Company;

Exhibit B-2

(u) has maintained and will maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any other Person;

(v) except for loans made to provide funds to a Holding Company or a Property Owner, has not made and will not make loans to any Person or hold evidence of indebtedness issued by any other Person or entity (other than cash and investment-grade securities issued by an entity that is not an Affiliate of or subject to common ownership with such entity);

(w) has not identified and will not identify its members or any Affiliate of any of them, as a division or part of it, and has not identified itself, and shall not identify itself, as a division of any other Person;

(x) has not entered into or been a party to, and will not enter into or be a party to, any transaction with its members or Affiliates except (i) in the ordinary course of its business and on terms which are intrinsically fair, commercially reasonable and are no less favorable to it than would be obtained in a comparable arm’s-length transaction with an unrelated third party, and (ii) in connection with the Mortgage Loan Documents;

(y) other than capital contributions and distributions permitted under the terms of its organizational documents, has not entered into or been a party to, and shall not enter into or be a party to, any transaction with any of its members or Affiliates except in the ordinary course of its business and on terms which are commercially reasonable terms comparable to those of an arm’s length transaction with an unrelated third party;

(z) has not had and shall not have any obligation to, and has not indemnified and shall not indemnify its officers, directors or members, as the case may be, in each case unless such an obligation or indemnification is fully subordinated to the Loan and shall not constitute a claim against it or any Property Owner in the event that its or a Property Owner’s cash flow is insufficient to pay the Mortgage Loan;

(aa) does not and will not have any of its obligations guaranteed by any Affiliate;

(bb) has complied and will comply with all of the terms and provisions contained in its organizational documents and cause statements of facts contained in its organizational documents to be and to remain true and correct; and

(cc) has not permitted and shall not permit any Affiliate or constituent party independent access to its bank accounts.

6. Prohibited Transfers. For so long as any Mortgage Loan or any portion thereof remains outstanding, the Company shall not allow direct or indirect transfers of ownership interests in the Company that would violate the provisions of the applicable Mortgage Loan Documents.

7. Subordination of Indemnification Obligations. For so long as any Mortgage Loan or any portion thereof remains outstanding, the Company’s obligations under this Agreement, if any, to indemnify its director and officers, members or managers, as applicable, is hereby fully subordinate to such Mortgage Loan and the applicable Mortgage Loan Documents and no indemnity payment from funds of the Company (as distinct from funds from other sources, such as insurance) of any indemnity under this Agreement, if any, shall be payable from amounts allocable to any other person pursuant to the applicable Mortgage Loan Documents.

Exhibit B-3

EXHIBIT C

HOLDING COMPANIES

1. BSV Spotswood Investors LLC

2. BSV Highlandtown Investors LLC

3. BSV Patrick Street Member LLC

4. BSV Colonial Investor LLC

5. BSV Lamonticello Investors LLC

6. BSV Coral Hills Investors LLC

7. BSV West Broad Investors LLC

Exhibit C

EXHIBIT D

PROPERTY OWNERS AND PROPERTIES

Property Owner	Property	Allocated Investment Amount
BSV Spotswood LLC	1791 East Market Street, Harrisonburg, VA	$2,236,733.00
BSV Avondale LLC	1901-1919 Michigan Avenue NE, Washington, D.C.	$1,247,127.00
BSV Highlandtown LLC	3800-3872 East Lombard Street, Baltimore, MD	$1,473,026.00
BSV Hollinswood LLC	2102-2215 West Patapsco Avenue, Baltimore, MD	$1,641,206.00
BSV Patrick Street LLC	1080 West Patrick Street, Frederick, MD	$4,113,341.00
BSV Crestview Square LLC	6617-6737 Annapolis Road, Landover Hills, MD	$0.00
BSV Dekalb LLC	2644-2700 Dekalb Pike, East Norriton, PA	$0.00
BSV Colonial Owner LLC	1234 Richmond Road, Williamsburg, VA	$0.00
BSV Lamonticello Owner LLC	220 Monticello Avenue, Williamsburg, VA	$0.00
BSV Coral Hills LLC	4801 Marlboro Pike, Capital Heights, MD	$0.00
BSV West Broad Commons LLC	9031 West Broad Street, Richmond, VA	$0.00

Exhibit D

EXHIBIT E

BASIS MORTGAGE LOAN PROPERTIES

Property Owner		Property

BSV Crestview Square LLC		6617-6737 Annapolis Road, Landover Hills, MD


BSV Dekalb LLC		2644-2700 Dekalb Pike, East Norriton, PA


BSV Colonial Owner LLC		1234 Richmond Road, Williamsburg, VA


BSV Lamonticello Owner LLC		220 Monticello Avenue, Williamsburg, VA


BSV Coral Hills LLC		4801 Marlboro Pike, Capital Heights, MD


BSV West Broad Commons LLC		9031 West Broad Street, Richmond, VA

Exhibit E

EXHIBIT F

MAJOR DECISIONS

Any decision, approval or consent with respect to the following matters regarding the Company and/or its Subsidiary(ies) is a Major Decision that requires the approval of the Class A Member pursuant to Section 5.2:

(i) [reserved]

(ii) approval of the terms and conditions of any indebtedness (including the Mortgage Loans, but excluding the new Mortgage Loan made by Fulton Bank, N.A. to BSV Hollinswood LLC on or about the date hereof, which is approved) of the Company and/or its Subsidiary(ies) for money borrowed by the Company and/or its Subsidiary(ies), except to the extent the proceeds of such indebtedness will be used to pay the entire Redemption Price to the Class A Member;

(iii) approval of the terms and conditions of any modification, amendment or refinancing of any Mortgage Loan (excluding the amendment to the Mortgage Loan made by Fulton Bank, N.A. to BSV Patrick Street LLC on or about the date hereof, which is approved), unless such amendment is required by the Mortgage Loan Documents and may be taken by the Mortgage Lender without the applicable borrower’s approval (provided, however, that the Class A Member will act in good faith to approve any refinancing of a Mortgage Loan which (A) is in a principal amount at least equal to the amount required to repay in full the Mortgage Loan being refinanced plus transaction costs, (B) has an interest rate not in excess of the interest rate under the Mortgage Loan being refinanced, (C) has a maturity date later than the last day of the Second Extension Term, (D) includes the provision to the Class A Member of a customary “recognition agreement” regarding preferred equity from the lender under the new mortgage loan and (E) the sum of the Class A Member’s Net Invested Capital and the principal amount of the new loan does not exceed seventy-five percent (75%) of the value of the applicable Property, as determined by the independent appraisal obtained by the new lender);

(iv) approval of any additional advance, if any, of principal under any Mortgage Loan other than the Basis Mortgage Loan (other than, with respect to a Mortgage Loan held by Fulton Bank, N.A., advances made in accordance with a budget approved by the Class A Member, provided that the Class A Member is given a copy of the request or requisition for any additional advance concurrently with the delivery thereof to such Mortgage Lender);

(v) approval of any action or inaction by the Company and/or its Subsidiary(ies) that would violate an affirmative or negative covenant or other provision of a Mortgage Loan Document, Material Lease or other Material Agreement binding on the Company, its Subsidiary(ies) or the Property;

(vi) approval of the appointment or replacement of any property manager, and the appointing any officers or authorized agents of the Company, or the approval of any amendment, modification or waiver of any of the terms and conditions of the property management agreement then in effect, including, without limitation, the fees payable thereunder;

(vii) any Capital Transaction;

(viii) any Transfer, except those expressly permitted without consent of the Class A Member pursuant to Section 8.4 above;

Exhibit F

(ix) the Company, a Holding Company or a Property Owner incurring any capital expenditure in excess of $250,000.00 with respect to any individual Property, unless the same is included in an Approved Budget;

(x) any proposed change in the use of a Property;

(xi) approval of any action or inaction by the Company and/or its Subsidiary(ies) with respect to any Bankruptcy;

(xii) permitting the Company or its Subsidiaries to enter in to, and/or approve of the terms and conditions of or any modification of, any Material Agreement relating to the Company, its Subsidiary(ies) or the Property;

(xiii) approval of the sale or other disposition of any portion or all of the Property or the Company’s membership interest in its Subsidiary(ies), the merger or consolidation of the Company and/or its Subsidiary(ies) with any other Person or the liquidation or dissolution of the Company and/or its Subsidiary(ies), unless any of the foregoing would result in the payment of the Redemption Price to the Class A Member;

(xiv) acquisition of any property that is not part of the Property or any part of any other assets either directly or indirectly through another Person in which the Company and/or its Subsidiary(ies) is an equity participant;

(xv) acquisition by the Company or its Subsidiary(ies) of shares of capital stock of or other equity interest in any Person;

(xvi) formation by the Company and/or its Subsidiary(ies) of any corporation, partnership, limited liability company or other legal entity (other than its Subsidiary(ies));

(xvii) other than the creation of trade receivables in the ordinary course of business and provided in the Approved Budget, in amounts permitted by the applicable Mortgage Loan, making by the Company or its Subsidiary(ies) any loan or incurring any debt whatsoever, extending credit or acting as guarantor or surety to, for or on behalf of any other Person;

(xviii) creation of any lien on the Property not contemplated by the Mortgage Loan, except to the extent the creation of such lien will result in the payment in full of the Redemption Price to the Class A Member;

(xix) issuance or sale of additional Membership Interests or admission of a new member in the Company and/or its Subsidiary(ies);

(xx) filing or commencement of any petition, voluntary or involuntary, to take advantage of any applicable insolvency, Bankruptcy, liquidation or reorganization statute by or on behalf of the Company and/or its Subsidiary(ies); consenting to the institution or continuation of any voluntary or involuntary Bankruptcy against the Company and/or its Subsidiary(ies) or the conversion of an involuntary proceeding into a voluntary proceeding; the admission in writing by the Company and/or its Subsidiary(ies) of its inability to pay its debts generally as they become due; or the making by the Company and/or its Subsidiary(ies) of a general assignment for the benefit of its creditors;

Exhibit F-2

(xxi) expending any funds in a manner that is inconsistent with the Approved Budget then in effect except as expressly permitted by Section 5.9 for Cost Overruns, Noncontrollable Costs or Emergency Costs;

(xxii) approving any Material Lease, or approving any material amendment, material modification or termination to a Material Lease;

(xxiii) approval of the terms and conditions of any indemnification agreement to be signed by or on behalf of the Company and/or its Subsidiary(ies);

(xxiv) the execution of any contract of sale, or the taking of any action or the making of any decision on behalf of the Company and/or its Subsidiary(ies) under any contract of sale, except to the extent that upon the closing thereunder the Redemption Price will be paid to the Class A Member;

(xxv) approval or implementation of any modification or termination of, or waiver under, any agreement or other document described above whose approval constitutes a Major Decision;

(xxvi) approval of any amendment or modification of the terms of this Agreement;

(xxvii) approval of the terms of any transaction between the Company or a Subsidiary and an Affiliate of any Member, except as otherwise specifically approved or provided hereunder or as may be provided in any Approved Budget;

(xxviii) approval, amendment or modification of the Approved Budget;

(xxix) amendment, modification, termination or failure to comply with the provisions of this Agreement, the Company’s Certificate of Formation or other organizational documents of the Company;

(xxx) amendment, modification, termination or failure to comply with any special purpose entity provisions of the partnership or limited liability company agreement, as the case may be, of any Subsidiary, any Subsidiary's Articles of Organization, Certificate of Incorporation or other organizational documents of the Company;

(xxxi) owning any Subsidiary or making any investment in any Person;

(xxxii) entering into or otherwise suffering any amendment, waiver, supplement, termination, extension, renewal, replacement or other modification of any Mortgage Loan Document;

(xxxiii) except for those made pursuant to a Material Agreement or a Material Lease previously approved by the Class A Member, making or causing to be made any alteration to any improvements on Property which are (i) structural in nature, (ii) are deemed a Material Agreement or (iii) may have a material adverse effect;

(xxxiv) failing to comply with all obligations covenanted to under the Mortgage Loan Documents;

(xxxv) dissolving, winding up or liquidating or taking any action, or omitting to take an action, as a result of which the Company or its Subsidiaries would be dissolved, wound up or liquidated in whole or in part;

Exhibit F-3

(xxxvi) causing, initiating or consenting to any zoning reclassification of any portion of the Property or seeking any variance to any existing zoning ordinance or use or permit the use of any portion of the Property in any manner that could result in such use becoming a non-conforming use under any zoning ordinance or any other applicable law;

(xxxvii) changing or permitting to be changed the name of the Company, its Subsidiaries or any other party to a Mortgage Loan Document;

(xxxviii) changing or permitting to be changed the corporate, partnership or other structure, or the place of organization of the Company or its Subsidiaries;

(xxxix) causing or permitting the Company or its Subsidiaries to, sell, convey, lease, mortgage, grant, bargain, encumber, pledge, assign, grant options with respect to, or otherwise transfer or dispose of (directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise, and whether or not for consideration or of record) the Property or any part thereof or any legal or beneficial interest therein, unless any of the foregoing would result in the payment of the Redemption Price to the Class A Member. It is acknowledged that the Class A Member has no consent rights with respect to Public Entity Transfers, Upstream Holder Transfers and Clause (2) Transfers and such Transfers do not constitute Major Decisions;

(xl) the settlement of any insurance claim with respect to the Property in an amount exceeding $250,000.00;

(xli) the approval of any changes to or termination of insurance policies maintained by the Company or a Property Owner or the approval to purchase new insurance policies or the establishment of parameters for insurance;

(xlii) take any action or make any decisions which would otherwise require the consent or approval of the Mortgage Lender under the Mortgage Loan Documents;

(xliii) further pledge, assign or grant any security interest in any Account or the monies deposited therein or permit any lien or encumbrance to attach thereto, or any levy to be made thereon, or any UCC-1 Financing Statements to be filed with respect thereto;

(xliv) disbursements from any reserve account (including those established for capital expenditures or tenant improvements and concessions), unless expressly set forth in an Approved Budget. For disbursements not expressly set forth in an Approved Budget, the Class A Member shall not unreasonably withhold or delay its approval of a request for disbursement accompanied by reasonable supporting documentation. If the Class B Member indicates in its request in bold capital letters that if the Class A Member does not respond within five (5) Business Days after its receipt of the request and confirmation that it has all supporting documents it determines are reasonably required for a decision, then, if the Class A Member does not respond (which response may be by electronic mail) to the request within five (5) Business Days after its receipt thereof and receipt of the supporting documentation so provided and any additional supporting documentation that the Class A Member may reasonably request, then the request shall be deemed approved; and

(xlv) decisions relating to any material litigation affecting the Company, any Holding Company, any Property Owner or any Property, including, without limitation, bankruptcy proceedings.

Exhibit F-4

EXHIBIT G

Approved Budget

(attached)

Exhibit G

EXHIBIT H

Form of Assignment and Assumption Agreement

(attached)

Exhibit H

ASSIGNMENT

BROAD STREET BIG FIRST OP LLC

The undersigned, __________________, ("Assignor") does hereby irrevocably and unconditionally transfer, assign and convey to _______________("Assignee"), one-hundred percent (100%) of the Assignor's legal and equitable right, title and interest in and to a ____% [Class A][Class B] Member interest in Broad Street BIG First Op LLC.

Assignor warrants and represents that it has the legal right to assign, transfer and convey the ownership interest described above free and clear of all liens and encumbrances and without restriction.

The Assignee shall assume all of the obligations and liabilities that shall accrue from and after the date of this Assignment with respect to the assigned interest herein, and Assignee shall indemnify and hold harmless the Assignor from and against any such liabilities and obligations.

Assignee hereby accepts the above-referenced assignment and agrees to become a member and to be bound by all of the terms and provisions relating to the [Class A][Class B] Member interest pursuant to the Operating Agreement of said LLC, as the same may have been or may be amended.

IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment as of this day of _________________ 20__.

		ASSIGNOR

_______________________		______________________________
Witness		Name

		ASSIGNEE

_______________________		______________________________
Witness		Name
		Address:
		SS/Tax ID:

[FOR TRANSFERS BY THE CLASS B MEMBER ONLY: THE AFORESAID ASSIGNMENT IS HEREBY AGREED AND CONSENTED TO BY BROAD STREET OPERATING PARTNERSHIP, L.P., MANAGER OF BROAD STREET BIG FIRST OP LLC AND ASSIGNEE IS HEREBY ADMITTED TO BROAD STREET BIG FIRST OP LLC AS A MEMBER THEREOF

BROAD STREET OPERATING PARTNERSHIP, L.P.

By: Broad Street OP GP, its General Partner

By: ______________________________

Michael Z. Jacoby, Chief Executive Officer]

Exhibit H

EXHIBIT I

Deferred Maintenance/Required Repairs

The following immediate repairs for Vista Shops at Golden Mile, Frederick, Maryland:

1. Modified bitumen roof replacement (estimated cost: $60,000)

2. Complete ADA compliance upgrades

Exhibit I

EXHIBIT J

Management and Leasing Agreements

Property Management and Leasing Agreement dated January 6, 2017 between BSV Colonial Owner LLC and Broad Street Realty, LLC, as amended by that certain First Amendment to Property Management and Leasing Agreement dated as of the Effective Date

Property Management and Leasing Agreement dated December 21^,2012 between BSV Coral Hills LLC and Broad Street Realty, LLC, as amended by that certain First Amendment to Property Management and Leasing Agreement dated as of the Effective Date

Property Management and Leasing Agreement dated August 29, 2011 between BSV Crestview Square LLC and Broad Street Realty, LLC, as amended by that certain First Amendment to Property Management and Leasing Agreement dated as of the Effective Date

Property Management and Leasing Agreement dated September 27, 2013 between BSV Dekalb LLC and Broad Street Realty, LLC, as amended by that certain First Amendment to Property Management and Leasing Agreement dated as of the Effective Date

Property Management and Leasing Agreement dated April 17, 2013 between BSV Highlandtown LLC and Broad Street Realty, LLC, as amended by that certain First Amendment to Property Management and Leasing Agreement dated as of the Effective Date

Property Management and Leasing Agreement dated September 12, 2013 between BSV Hollinswood LLC and Broad Street Realty, LLC, as amended by that certain First Amendment to Property Management and Leasing Agreement dated as of the Effective Date

Property Management and Leasing Agreement dated November 17, 2017 between BSV Lamonticello Owner LLC and Broad Street Realty, LLC, as amended by that certain First Amendment to Property Management and Leasing Agreement dated as of the Effective Date

Property Management and Leasing Agreement dated July 17, 2018 between BSV Lamar East LLC and Broad Street Realty, LLC, as amended by that certain First Amendment to Property Management and Leasing Agreement dated as of the Effective Date

Exhibit J

Property Management and Leasing Agreement dated November 6, 2006 between BSV Patrick Street and Broad Street Realty, LLC, as amended by that certain First Amendment to Property Management and Leasing Agreement dated as of the Effective Date

10.

Property Management and Leasing Agreement dated December 12, 2016 between BSV West Broad Commons LLC and Broad Street Realty, LLC, as amended by that certain First Amendment to Property Management and Leasing Agreement dated as of the Effective Date

11.

Property Management and Leasing Agreement dated as of the Effective Date between BSV Avondale LLC and Broad Street Realty, LLC

Exhibit J

EXHIBIT K

Permitted Distributees

(attached)

Exhibit K

Exhibit 10.3

Loan Agreement

This Loan Agreement (the “Loan Agreement”) is dated as of the 27^th day of December, 2019, by and between MVB BANK, INC., a West Virginia banking corporation, its successors and/or assigns (the “Lender”), having an address for notices hereunder of 12100 Sunset Hills Road, Suite 130, Reston, Virginia 20190, Attn: Garret Reed; and Broad Street Operating Partnership, LP, a Delaware limited partnership, Broad Street Realty, Inc., a Delaware corporation, and Broad Street Realty, LLC, a Maryland limited liability company, their respective successors and/or assigns (collectively, the “Borrower” for clerical convenience), each having an address for notices hereunder of 7250 Woodmont Avenue, Suite 350, Bethesda, Maryland 20814, Attn: Michael Jacoby; and agreed and consented to by each Guarantor (as defined below).

The Borrower has applied to Lender for and the Lender has agreed to lend, subject to the terms of this Loan Agreement and all other Loan Documents (as defined below), a sum of money in the aggregate principal amount of up to Six Million Five Hundred Thousand and 00/100 Dollars ($6,500,000.00) (hereinafter whether administered as one or more loans, referred to, singularly or collectively, as the “Loan”), for the following purpose (hereinafter the “Purpose”): (i) to effect the refinance of one more existing loans made by EagleBank to one or more Borrower, and (ii) to provide the Borrower with additional working capital to support the operational business objectives of the Borrower as disclosed and provided to the Lender, subject to the terms of this Loan Agreement.

The guarantors of the Loan are BSV Cromwell Land LLC, a Maryland limited liability company (“BSV Cromwell Land”), and Michael Z. Jacoby (individually) (hereinafter, together with any/all respective heirs, successors, substitutes, and/or assigns referred to collectively for clerical convenience, whether one or more, as “Guarantor”).

The Lender is not willing to enter into the financial transactions that are contemplated in this Loan Agreement and in the Loan Documents (as defined below) unless the transactions are secured for the benefit of the Lender. Accordingly, to induce the Lender to make the Loan, and in express reliance thereon, this Loan Agreement is being executed, acknowledged and delivered to and for the benefit of the Lender. The security documents (as described below) secure the Loan, and all promissory notes dated of any date that evidence the Loan and in particular: (i) that certain Promissory Note in the face amount of Four Million Five Hundred Thousand and 00/100 Dollars ($4,500,000.00) (“Note No. 1”), and (ii) that certain Promissory Note in the face amount of Two Million and 00/100 Dollars ($2,000,000.00) (“Note No. 2”), each dated on or about the date of this Loan Agreement, executed in favor of the Lender, together with: (i) all accrued interest, and as said interest may be changed from time to time in accordance therewith, (ii) all late fees and costs associated therewith, and (iii) any and all respective substitutions, replacements, restructurings, bifurcations, consolidations, extensions, amendments, and/or allonges thereto (collectively, whether one or more, now or hereafter existing, referred to for clerical convenience hereinafter, as the “Note”). The terms of the Note are incorporated herein by this reference. The Loan and the Note are secured by all of the other Loan Documents.

Section 1 Conditions Precedent

The Lender shall not be obligated to make any disbursement of loan proceeds until the Lender confirms that all of the following conditions precedent have been satisfied, and proper evidence of compliance has been provided to the Lender, all in form and substance satisfactory to the Lender:

1.01.

USA Patriot Act Verification Information: That information or documentation, including but not limited to the legal name, address, tax identification number, driver’s license, and date of birth of the natural person signing as or for Borrower is sufficient for the Lender to verify the person’s identity in accordance with the USA Patriot Act. Borrower shall notify Lender promptly of any change in such information.

1.02.

Note: That the Note has been duly executed by the Borrower and all other parties that may be required to also sign the Note.

1.03.

Guaranty: That an unconditional guaranty agreement has been executed and delivered by each Guarantor, to guarantee the Loan and payment of all obligations under all of the Loan Documents, in accordance with the terms therein.

1.04.

Borrower’s Certificate: A Borrower’s certificate has been provided where the Borrower certifies particular facts and circumstances to the Lender to induce the Lender to make the Loan.

1.05.

Resolution/Authorization: Lender has sufficient evidence of due authorization as to the execution, delivery, and performance of the Loan Documents by all parties thereto in a form acceptable to Lender.

1.06.

Loan Fee: That a loan fee of $65,000.00 is to be paid to the Lender on or before the date of execution of the Loan Documents, in addition to any other miscellaneous appraisal charges, and other reasonable expenses or costs incurred by the Lender. All loan fees shall be deemed to be earned in full at the time when paid to the Lender.

1.07.

Certificate of Existence: That sufficient evidence from the business department of each State (or other government authority) has been submitted as to the name, legal existence, good standing and/or charter file documents for each Owner, in the state where organized and in the state where doing business, if different.

1.08.

Legal Opinion: At Lender’s request, a favorable opinion from legal counsel acceptable to the Lender has been submitted to certify, among other things, that the Loan Documents are valid, binding and enforceable against the parties thereto, in accordance with their terms in a form and substance acceptable to the Lender and the Lender's counsel.

1.09.

Additional Documents: Subject to the Lender’s underwriting for the Loan, the Lender may determine that any of the following additional documents may be applicable:

Security Agreement and Collateral Assignment: Security agreement in which each Borrower shall grant to Lender a first priority security interest and collateral assignment in the business assets and property specified therein.

UCC Financing Statements: UCC Financing Statements duly filed in each Borrower’s state of incorporation, organization, or residence, and in all jurisdictions necessary, or in the opinion of the Lender desirable, to perfect the security interests granted in the Security Agreement and Collateral Assignment, and certified copies of information requests identifying all previous financing statements on record for the Borrower or other owner, as appropriate from all jurisdictions indicating that no security interest has previously been granted in any of the collateral described in the Security Agreement and Collateral Assignment, unless prior approval has been given by the Lender.

Security Agreement and Collateral Assignment of Interests: Security agreement in which Michael Z. Jacoby shall grant to Lender a security interest and collateral assignment in rights and interests in specified entities identified therein as collateral for the Loan.

Other: The Lender has received such other approvals, opinions, or documents as the Lender may reasonably request.

Section 2 Representations and Warranties

Each Borrower hereby jointly and severally represents and warrants to Lender that:

2.01.

Financial Statements. The balance sheet provided by the Borrower, and its related statements of income and retained earnings, together with any accompanying footnotes, accountant's opinions thereon, and all other financial information previously furnished to the Lender, fairly reflect the financial condition of the Borrower and its subsidiaries, if any, as of the dates thereof, and are true and accurate and have not changed materially and adversely since the date thereof.

2.02.

Name, Capacity and Standing. The exact legal name of each Borrower is correctly stated in the initial paragraph of this Loan Agreement. Borrower is duly qualified and in good standing to do business in every state in which the nature of its business shall require such qualification, and is duly authorized to enter into and perform the obligations under this Loan Agreement and the other Loan Documents. Each Borrower warrants and covenants that it is duly organized and validly existing under the laws where it was formed.

2.03.

No Violation of Other Agreements. The execution of the Loan Documents, and the performance by each Borrower will not violate any provision, as applicable, of any of its articles of formation or regulations, operations and governing agreements, or of any law, other agreement, indenture or other binding instrument, or give cause for the acceleration of any of their respective obligations.

2.04.

Authority. All authority from and approval by any federal, state, or local governmental body, commission or agency necessary to the making, validity, or enforceability of this Loan Agreement and the other Loan Documents has been obtained.

2.05.

Asset Ownership. All of the properties and assets reflected on the balance sheets and financial statements furnished to the Lender are clearly titled so that the Lender may identify the owner thereof (if it is not the Borrower), and all such properties and assets are free and clear of mortgages, deeds of trust, pledges, liens, and all other encumbrances except as otherwise disclosed by such financial statements. In addition, each other owner of collateral has good and marketable title to such collateral, free and clear of any liens, security interests and encumbrances, except as otherwise disclosed to Lender.

2.06.

Discharge of Liens and Taxes. The Borrower and its subsidiaries, if any, have filed, paid, and/or discharged all taxes or other claims which may become a lien on any of their respective properties or assets, excepting to the extent that such items are being appropriately contested in good faith and for which an adequate reserve (in an amount acceptable to Lender) for the payment thereof is being maintained.

2.07.

Regulations U and X. None of the loan proceeds shall be used directly or indirectly for the purpose of purchasing or carrying any margin stock in violation of the provisions of Regulation U and Regulation X of the Board of Governors of the Federal Reserve System.

2.08.

ERISA. Each/any employee benefit plan, as defined by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), maintained by the Borrower or by any subsidiary of the Borrower meets, as of the date hereof, the minimum funding standards of Section 302 of ERISA, all applicable requirements of ERISA and of the Internal Revenue Code of 1986, as amended, and no “Reportable Event” nor “Prohibited Transaction” (as defined by ERISA) has occurred with respect to any such plan.

2.09.

No Litigation. There is no claim, action, suit or proceeding pending, threatened or reasonably anticipated before any court, commission, administrative agency, whether State or Federal, or arbitration which will materially adversely affect the financial condition, operations, properties, or business of any Borrower or its respective subsidiaries, if any, or the ability of any Borrower to perform its respective obligations under the Loan Documents.

2.10.

Other Agreements. The representations and warranties made by Borrower to Lender in the other Loan Documents are true and correct in all respects on the date hereof.

2.11.

Binding and Enforceable. The Loan Documents, when executed, shall constitute valid and binding obligations of the parties thereto, the execution of such Loan Documents has been duly authorized by the parties thereto, and are enforceable in accordance with their terms, except as may be limited by bankruptcy, insolvency, moratorium, or similar laws affecting creditors' rights generally.

2.12.

Commercial Purpose. The Loan is a commercial loan and is not a “consumer transaction”, as defined in the Virginia Uniform Commercial Code, and none of the collateral was or will be purchased or held primarily for personal, family or household purposes.

Section 3 Affirmative Covenants

Each Borrower covenants and agrees that from the date hereof and until payment in full of all indebtedness and performance of all obligations owed to the Lender under the Loan Documents, each Borrower shall:

3.01.

Maintain Existence and Current Legal Form of Business. (a) Maintain its existence and good standing in the state of its formation, (b) maintain its current legal form of business indicated above, and, (c) as applicable, qualify and remain qualified to do business in each jurisdiction in which such qualification is required.

3.02.

Maintain Records. Keep adequate records and books of account, in which complete entries will be made, reflecting all financial transactions of the Borrower.

3.03.

Maintain Properties. Maintain, keep, and preserve all of its properties (tangible and intangible) including the collateral necessary or useful in the conduct of its business in good working order and condition, ordinary wear and tear excepted.

3.04.

Conduct of Business. Continue to engage in an efficient and prudent manner of business that is the same general type as now conducted.

3.05.

Maintain Insurance. Maintain insurance with financially sound and reputable insurance companies or associations in such amounts and covering such risks as are usually carried by companies engaged in the same or a similar business, and business interruption insurance if required by Lender, which insurance may provide for reasonable deductible(s). The Lender shall be named as loss payee (Long Form) on all policies which apply to the Lender's collateral, and the Borrower shall deliver certificates of insurance at closing evidencing same. All such insurance policies shall provide, and the certificates shall state, that no policy will be terminated without thirty (30) days prior written notice to Lender.

3.06.

Comply With Laws. Comply in all respects with all applicable laws, rules, regulations, and orders including, without limitation, paying before the delinquency of all taxes, assessments, and governmental charges imposed upon it or upon its property.

3.07.

Right of Inspection. Permit the officers and authorized agents of the Lender, at any reasonable time or times, to visit the properties of the Borrower, to examine and make copies of the applicable records and books of account, and to discuss such matters with any owner, agent or representatives of the Borrower, or the Borrower's independent accountant as the Lender deems reasonably necessary and proper.

3.08.

Reporting Requirements. Furnish to the Lender:

Annual Financial Statements: As soon as available and not later than June 30^th of each year, consolidated, financial statements of each Borrower audited by a public accounting firm, to include balance sheets, statements of income, cash flow, and retained earnings for the period ended and a statement of changes in the financial position, all in reasonable detail, and all certified as true and correct by an officer, general partner, or manager of the Borrower, as appropriate.

Interim Financial Statements: As soon as available and not more than thirty (30) days after the end of each fiscal quarter, consolidated company-prepared interim financial statements of each Borrower in content and form reasonably acceptable to Lender.

Tax Returns: As soon as available each year, but not later than April 15^th of each year (or October 15^th if an extension is filed), complete copies (including all schedules) of all federal tax returns filed by Borrower.

Debt Schedule: As soon as available and not more than thirty (30) days after the end of each fiscal quarter, a schedule of all debt balances and payments of each Borrower and limited liability companies owned by any Borrower, in content and form reasonably acceptable to Lender.

Rent Roll: As soon as available each year, but not later than January 30^th of each year, the rent roll for each of the BSV Group 1 Properties (as defined below), each of the BSV Group 2 Properties (as defined below), and any other real estate investment properties hereafter acquired or owned (indirectly or directly) in whole or in part by any Borrower.

Notice of Litigation: Promptly after the receipt by the Borrower of which Borrower has knowledge, notice or complaint of any action, suit, and/or proceeding before any court or administrative agency of any type which, if determined adversely, could have a material adverse effect on the financial condition, properties, or operations of the Borrower, as appropriate.

Notice of Default: Promptly upon discovery or knowledge thereof, notice of the existence of any Event of Default.

USA Patriot Act Verification Information: Information or documentation, including but not limited to the legal name, address, tax identification number, driver’s license, and date of birth (if the Borrower is an individual) of the Borrower sufficient for the Lender to verify the identity of the Borrower in accordance with the USA Patriot Act. Borrower shall notify Lender promptly of any change in such information.

Other Information: Such other information as the Lender may from time to time reasonably request.

3.09.

Deposit Accounts. Maintain, in the name of Borrower or an affiliate of a Borrower, one or more deposit accounts with the Lender, which accounts shall have an aggregate minimum balance at the time of testing of $3,000,000.00 (the “Deposit Requirement”), to be tested by Lender commencing as of December 31, 2019 and on a quarterly basis thereafter. If the Lender determines that the Deposit Requirement has not been satisfied, effective as of the date of such review, such breach shall not constitute a default, but the interest rate charged to Borrower under the terms of each Note will automatically increase by one percent (1.00%) above the interest rate that is in effect under each Note, without the need for notice to Borrower, and shall remain at the increased interest rate until the next quarterly review date on which the Lender determines that the Deposit Requirement has been satisfied.

3.10.

Affirmative Covenants from other Loan Documents. All affirmative covenants contained in any security documents executed in connection with the Loan which are described in Section 1 hereof are hereby incorporated by reference herein.

3.11.

Assignment of Membership Interests; Security Agreement. Borrower shall cause Michael Z. Jacoby to execute and deliver the Security Agreement and Collateral Assignment to grant a security interest and assign to Lender certain of Michael Z. Jacoby’s ownership interests in Broad Street Operating Partnership, LP, in addition to all other collateral as described therein, as additional collateral for the Loan. Borrower shall cause Michael Z. Jacoby to execute and deliver the Pledge, Assignment, and Security Agreement to grant a security interest and assign to Lender certain of Michael Z. Jacoby’s ownership interests in Broad Street Realty, Inc., in addition to all other collateral as described therein, as additional collateral for the Loan.

3.12.

Real Property Owning LLCs. Each Borrower covenants and agrees that ninety-nine percent (99%) of the membership interests of Broad Street BIG First OP LLC, a Delaware limited liability company (“BIG First Op”), are owned by Broad Street Operating Partnership, LP, and that BIG First Op is, or upon completion of the staged merger transactions, will be the direct or indirect owner of the following real estate owning limited liability companies: BSV Spotswood LLC, BSV Avondale LLC, BSV Highland-Town LLC, BSV Hollinswood LLC, BSV Patrick Street LLC, BSV Colonial Owner LLC, BSV Lamonticello Owner LLC, BSV Coral Hills LLC, BSV West Broad Commons LLC, BSV Crestview Square LLC, and BSV Dekalb LLC (collectively, the “BSV Group 1 Properties”). Each Borrower covenants and agrees that Broad Street Operating Partnership, LP, a Delaware limited partnership, upon completion of the staged merger transactions, will own directly or indirectly, ninety-nine percent (99%) of the membership and ownership interests in the following real estate owning limited liability companies: BSV Greenwood Village LLC, BSV Cromwell Property LLC, BSV Cypress Point LLC, BSV Lamont JCRS LLC, BSV Lamar East LLC, and BSV Premier Brookhill LLC (collectively, the “BSV Group 2 Properties”).

3.13.

Ownership of Borrowers. During the life of the Loan, Broad Street Operating Partnership, LP shall maintain its ninety-nine percent (99%) ownership/membership interest in BIG First Op and its one hundred percent (100%) ownership/membership interest in Broad Street Realty, LLC.

3.14.

Cash Collateral.

(a)

On or before the date of this Agreement, the Borrower cause Michael Z. Jacoby to deposit with the Lender the cash sum of not less than Nineteen Thousand Four Hundred Two and 00/100 Dollars ($19,402.00) (the “Cash Collateral”), in an account that is held and exclusively controlled by the Lender and shall continue to be held by the Lender as additional collateral for the Loan as long as the Loan remains outstanding.

(b)

The Cash Collateral shall be subject to the terms of this Agreement, the Lender’s Assignment, Pledge, and Security Agreement as well as all other customary bank documentation. Borrower agrees to cause Michael Z. Jacoby to execute, acknowledge, and deliver customary lender account documents and agreements, and any amendments and/or corrections thereto, from time to time in connection with establishing, evidencing, securing, and perfecting the Lender’s security interest in the Cash Collateral for as long as the Loan remains outstanding, at no cost to the Lender.

Section 4 Guarantor Covenants

Each Guarantor covenants and agrees that from the date hereof and until payment in full of all indebtedness and performance of all obligations owed under the Loan Documents, each Guarantor shall:

	4.01.	Maintain Properties - Liquid Assets. Not dispose of all or substantially all of guarantor's properties (tangible or intangible).

	4.02.	Comply With Laws. Comply in all respects with all applicable laws, rules, regulations, and orders including, without limitation, paying before the delinquency of all taxes, assessments, and governmental charges imposed or assessed upon any guarantor or upon a guarantor’s property.

4.03.

Reporting Requirements. Furnish to the Lender:

Personal Financial Statements: As soon as available and not later than April 30 of each year, personal statements of income, statements of liquidity, cash flow, and a statement of changes in the financial position of Michael Z. Jacoby, all in detail that is reasonable to the Lender, and all certified as true and correct;

Tax Returns: As soon as available each year, but not later than thirty (30) days after filing each year, furnish complete copies (including all schedules) of all federal tax returns filed by each Guarantor;

Notice of Litigation: Promptly after the receipt by any Guarantor, or by Borrower of which any guarantor has knowledge, provide notice of any action, suit, and proceeding before any court or governmental agency of any type which, if determined adversely, could have a material adverse effect on the financial condition, properties, or on the obligations or commitments of any guarantor;

Other Information: Furnish such other information as the Lender may from time to time reasonably request.

4.04. 4..No Litigation: Not be involved in any claim, action, suit or proceeding pending, threatened or reasonably anticipated before any court, commission, administrative agency, whether State or Federal, or any arbitration, which will materially adversely affect the financial condition, operations, properties, or business of any Guarantor, or the ability to perform their obligations under the Loan Documents.

4.05.

Entity Requirements: BSV Cromwell Land shall not:

Dissolve; Transfer of Ownership: Without the prior written consent of the Lender, dissolve or terminate, or issue, transfer, hypothecate, assign or sell any of its direct ownership interests after the date of this Loan Agreement, except that internal transfers among existing owners are permissible so long as there is no change in management, and so long as the Lender is provided copies of all documentation in a form acceptable to the Lender evidencing such internal transfers;

Change Existence: Change its legal form of business as shown in all information provided to Lender, and shall not, without the Lender’s prior written consent, change guarantor’s name. BSV Cromwell Land shall qualify and remain qualified to do business in each jurisdiction in which such qualification is required and at all times maintain its existence and good standing in the state of its formation.

Section 5 Financial Covenants

The following financial covenants shall be met and maintained, as reasonably determined solely by the Lender, for so long as any obligations under the Loan Documents remain outstanding:

5.01.

Debt Service Coverage Ratio. A minimum DSC Ratio (as defined in this section) of at least 1.30 to 1.00 shall at all times be maintained, and may be tested by Lender commencing as of September 30, 2020 and on a quarterly basis thereafter, for so long as the Loan remains outstanding. The “DSC Ratio” is hereby defined as the debt service coverage ratio which shall be calculated by Lender in the form of a ratio of: (i) EBITDA (as defined in this section); to (ii) Interest Expense plus CMLTD (as defined in this section). “EBITDA” is defined as combined earnings from the continuing operations of Borrower, plus interest expense, taxes, depreciation, and amortization, and shall not include any gains or losses from the sale of assets outside the normal course of business or any other extraordinary accounting adjustments or non‐recurring items of income or loss except as determined by the Lender. “Interest Expense” is defined to mean the combined interest expense of Borrower determined on a consolidated basis for such period in review. “CMLTD” is defined to mean all scheduled principal payments of current maturing long term debt paid during the period in review, excluding prepayments of principal. Any values may be prorated by the Lender at its option. All such calculations and determinations of the DSC Ratio made by the Lender in good faith, absent manifest error, shall be binding for all purposes under this Loan Agreement

5.02.

Total Funded Debt to EBITDA Ratio. Borrower shall not permit the ratio of: (i) its quarterly, consolidated EBITDA, measured on an annualized basis, over (ii) its consolidated funded debt, to be less than eight percent (8.00%), as measured and determined quarterly by Lender commencing as of September 30, 2020. All such calculations and determinations of the foregoing ratio made by the Lender in good faith, absent manifest error, shall be binding for all purposes under this Loan Agreement.

5.03.

Minimum Liquidity. Each Borrower and each Guarantor shall maintain an aggregate minimum unencumbered cash accounts, plus the value of any of their unencumbered marketable securities, plus available funds under lines of credit that are readily available for withdraw by any Borrower or Guarantor, to be less than $5,000,000, as measured and determined by Lender on a quarterly basis commencing as of September 30, 2020. All such calculations and determinations of the minimum unencumbered liquidity made by the Lender in good faith, absent manifest error, shall be binding for all purposes.

Section 6 Negative Covenants

Each Borrower covenants and agrees that from the date hereof and until payment in full of all indebtedness and performance of all obligations under the Loan Documents, each Borrower, without the prior written consent of the Lender, shall not:

6.01.

Liens; Security Interests. Grant any security interest upon or with respect to any of properties now owned or hereafter acquired by Broad Street Realty, Inc. and Broad Street Operating Partnership, LP;

6.02.

Debt. Incur, assume, or suffer to exist additional indebtedness in excess of $250,000, except:

(a)

Debt to the Lender;

(b)

Debt outstanding on the date hereof and shown on the most recent financial statements submitted to the Lender;

(c)

Accounts payable to trade creditors incurred in the ordinary course of business; and

(d)

Other normal unsecured debts incurred in the ordinary course of business;

6.03.

Change of Legal Form of Business; Purchase of Assets. Change Borrower’s name or the legal form of Borrower’s business as shown above, whether by merger, consolidation, conversion or otherwise, and Borrower shall not purchase all or substantially all of the assets or business of any Person;

6.04.

Dividends or Distributions Following Default. During the occurrence of an Event of Default, declare or pay any dividends or distributions of any kind;

6.05.

Guaranties. Assume, guarantee, endorse, or otherwise be or become directly or contingently liable for obligations of any Person, except guaranties by endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;

6.06.

Loans. Make further loans to directors, officers, partners, members, shareholders, subsidiaries and affiliates, unless made in connection with the repayment of the Loan, and in all cases shall be subordinate to the operation and effect of the Loan Documents;

6.07.

Disposition of Assets. Sell, lease, or otherwise dispose of any of its assets or properties except in the ordinary and usual course of its business;

6.08.

Dissolve or Terminate. Dissolve or terminate Broad Street Operating Partnership, LP or Broad Street Realty, LLC;

6.09.

Change of Management. Allow for a material change in management of any Borrower or BIG First Op, which is managed by Broad Street Operating Partnership, LP as of the date hereof; provided, however, nothing contained herein shall prohibit, limit or restrict the right of BIG BSP Investments LLC, as the Class A Member of BIG First Op, to replace the manager of BIG First Op pursuant to Section 5.6 of the Operating Agreement of BIG First Op, and any such replacement of the manager shall not constitute a default under this Agreement; and

6.10.

Additional Debt and Liens on Cash Flow of Real Estate Owning LLCs. Except for that certain loan made on or about the date of this Loan Agreement in the principal amount of $66,850,000 from Big Real Estate Finance I, LLC to one or more of the BSV Group 1 Properties, as otherwise disclosed in writing to Lender on or before the date of this Loan Agreement, and/or as may be approved in writing by Lender following the date of this Loan Agreement, no additional material indebtedness shall be incurred or assumed by any of the BSV Group 1 Properties or the BSV Group 2 Properties, and no liens or encumbrances shall be placed on the cash flow and/or real property owned by any of the BSV Group 1 Properties or the BSV Group 2 Properties.

Section 7 Advances; Revolving Credit Facility

At closing, the Lender will advance the full amount of the Loan evidenced by Note No. 1 (to-wit: $4,500,000.00) in connection with the Purpose. Subject to all of the terms and conditions set forth in this Loan Agreement and in any of the other Loan Documents, the Lender hereby permits the Borrower a revolving commercial use of credit up to the amount of Note No. 2, as follows:

7.01.

Advances Under Note No. 2.

7.01.01.

Promise To Pay. The Borrower promises to repay any and all monies advanced and/or re-advanced by the Lender in connection with the Loan in accordance with the terms of each respective Note, plus interest, costs, and fees as provided for thereunder and under the Loan Documents.

7.01.02.

Revolving Line of Credit. The Lender hereby permits the Borrower a limited revolving line of credit under Note No. 2, that shall in no event ever exceed the amount of the Loan evidenced by Note No. 2, subject to all terms and conditions of this Loan Agreement. Once principal advances are repaid under Note No. 2, the Borrower may subsequently request re-advances of such sums or any portion of such sums, subject to the terms of this Loan Agreement and in particular this Section.

7.01.03.

Initial Advance. At or about the time of closing, and at the Borrower’s request, the Lender may make an initial advance to the Borrower under Note No. 2 in any amount as approved by the Lender, for use by Borrower in connection with the Purpose (the “Initial Advance”).

7.01.04.

Subsequent Credit Advances; Revolving. From time to time after the date of this Agreement, but not more frequently than twice per month, and prior to the Advance Deadline (as defined below) the Borrower may request further advances and/or re-advances under Note No. 2 so long as the Lender determines in its discretion: (i) that the requests for such advances and/or re-advances are consistent with the Purpose as disclosed to the Lender, (ii) that no Event of Default has occurred and is continuing or but for the passage of time is about to occur, and (iii) the principal amount of the Loan evidenced by Note No. 2 is not exceeded (each advance and/or re-advance under Note No. 2 is referred to herein as a “Credit Advance”; the Initial Advance and the Credit Advance are hereinafter referred to collectively as “Advances” and each is an “Advance”).

7.01.05.

Advance Deadline. All requests for any Credit Advance under Note No. 2 must be received by the Lender prior to the Maturity Date (as defined in Note No. 2) (the “Advance Deadline”), at which time the Borrower’s right to any further Advances under Note No. 2 shall automatically expire notwithstanding anything contained herein or in any other Loan Documents to the contrary. The Borrower shall not be entitled to, and the Lender shall not be required to make, any Credit Advances under Note No. 2 after the Advance Deadline.

7.01.06.

Clean Up Period. Notwithstanding anything to the contrary contained in Note No. 2, the Borrower agrees that the Borrower shall pay-down the portion of the Loan evidenced by Note No. 2 to an outstanding principal balance of Zero Dollars ($0) for a period of at least thirty (30) consecutive days at least once per annum for so long as the Loan evidenced by Note No. 2 remains outstanding.

7.01.07.

Completion of Form. All requests for Credit Advances shall be requested by individuals authorized by Borrower. All requests for Advances will be confirmed by email, signed facsimile, or in person or by telephone with an authorized representative of Lender. If requested by Lender in connection with any request for a Credit Advance under Note No. 2, the Borrower shall complete, execute and deliver a credit request form or application (the “Form”) as a condition precedent to such Credit Advance, which Form shall be on any terms acceptable to Lender, and shall permit the Lender to obtain any reasonable information or supportive written evidence requested by Lender, all of which shall be in a form and substance acceptable to the Lender.

7.01.08.

Annual Affirmation. Borrower agrees to provide to the Lender on an annual basis such additional and/or updated financial information, loan applications and such other information as Lender may require to re-evaluate its underwriting criteria in connection with the portion of the Loan evidenced by Note No. 2, all as solely determined by the Lender, and if the Lender determines that a material adverse change has occurred in the financial information of the Borrower, as reasonably determined by the Lender based on its review, the Lender unconditionally reserves the right to reduce, restrict, limit, revise, establish, or re-establish at any time, or from time to time: (i) the total amount available for Advances under Note No. 2; and/or (ii) the amount of any credit advance under Note No. 2, as determined solely by the Lender, in the Lender's discretion.

7.01.09.

Verifications. The Lender reserves the right to verify that the Borrower is in compliance with the provisions of this Loan Agreement. Borrower agrees to cooperate with Lender with respect to such verifications.

7.02.

Additional Lender Rights.

7.02.01.

Notwithstanding anything contained herein to the contrary, in addition to any other rights herein, the Lender reserves the right to deny any request for an Advance: (i) if the request for an Advance is not accompanied by sufficient supporting papers, documentation, or substantiation, as reasonably determined by the Lender; (ii) the Lender believes that the request does not comply with the Purpose or with any of the terms and provisions of this Loan Agreement; (iii) any documents required by the Lender are not in a form and substance reasonably acceptable to the Lender; or (iv) the Lender determines that a material adverse change has occurred to the market value of any of the collateral for the Loan or to the financial condition of any party to the Loan, at any time after the date of this Loan Agreement.

7.02.02.

The proposed Credit Advances in connection with the Purpose are intended to enhance the financial strength of the Borrower and, in the event the Lender determines in its sole discretion that any proposed Credit Advance would not be consistent with enhancing the financial covenants of the Borrower, then in that event the Lender may condition, delay or deny any such request for a Credit Advance at any time.

7.02.03.

The Borrower further agrees that the obligation of the Lender to fund any Advances under the Loan to the Borrower in connection with the Purpose is expressly subject to the continuing compliance of all parties, as determined by Lender, with all of the provisions set forth herein and in each of the other Loan Documents, each time the Borrower applies for a subsequent Credit Advance under Note No. 2, and in the event that the Lender determines that the any party to this Credit Agreement is not in compliance with any of the terms, provisions, covenants, and agreements set forth herein and/or in any of the other Loan Documents, then in that event the Lender may condition, delay, and/or deny any such request for a Credit Advance.

7.02.04.

The Lender unconditionally and exclusively reserves the right to reduce, restrict, terminate, limit, establish, and/or re-establish at any time, or from time to time, without any advance notice, the amount of any Credit Advance contemplated under the Loan if the Lender determines at any time that a material adverse change has occurred to the market value of any of the collateral for the Loan, or to the financial condition of Borrower or any other party obligated under the Loan, at any time after the date of this Loan Agreement.

7.03.

Loan Administration. Borrower agrees to pay any reasonable loan administrative costs, expenses, or charges incurred by the Lender, as Lender may require from time to time, and any amounts necessary for the payment of such costs, expenses, or charges incurred by the Lender in connection with the Loan may, for Lender’s convenience, be deducted from any advance made under the Loan.

7.04.

Termination of Loan Disbursements. In addition to all other rights of the Lender granted under any of the Loan Documents to terminate Advances, the Lender's commitment to make Advances shall expire and terminate: (i) automatically if the portion of the Loan evidenced by Note No. 2 is prepaid in full and Note No. 2 cancelled or returned to Borrower; (ii) if the Borrower commits any breach or anticipatory breach; or (iii) if an Event of Default occurs and is not timely cured.

7.05.

Payments Under Note. Regardless of when any Credit Advance is applied for by the Borrower and received, any and all sums outstanding under Note No. 2 shall be due and payable in full in accordance with the terms of Note No. 2. The Initial Advance and all subsequent Credit Advances shall be deemed to be evidenced by Note No. 2.

7.06.

Other Information. For good cause as determined by the Lender, the Borrower agrees to provide such other reasonable documentation or information promptly when requested and in a form and substance that is reasonably acceptable to the Lender, and at Borrower’s expense.

7.07.

No Borrower Assignment. The interests of the Borrower herein shall not be further assigned.

7.08.

No Default. At no time shall the Borrower commit or have committed any Event of Default.

Section 8 Event of Default

If the Lender determines that any of the following events (hereinafter collectively referred to as the “Events of Default” and any one an “Event of Default”) occur for any reason whatsoever, whether such occurrence shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree, or order of any court or any order, rule or regulation of any administrative body, or otherwise, then a default shall be deemed to have occurred under this Loan Agreement, as well as under each and every one of the other Loan Documents:

8.01.

If any installment, payment or amount that is due under any Note or under any other note evidencing the Loan, is not paid when due or demanded;

8.02.

If any other breach occurs under any terms of any Note or any of the other Loan Documents;

8.03.

If any costs and attorneys’ fees are incurred by the Lender under the terms of this Loan Agreement, and not repaid immediately upon demand;

8.04.

If any Obligor shall file a petition in bankruptcy under any chapter of the United States Code or under any Federal bankruptcy act, or obtain an order for relief from any United States Bankruptcy Court; or if any Obligor shall take advantage of any insolvency act or any other statute or law relating to the relief of debtors; or if there is commenced against any Obligor an involuntary petition in bankruptcy and such petition is not promptly dismissed; or a court of competent jurisdiction shall assume custody or control of any Obligor or any substantial part of their respective assets;

8.05.

If any Obligor admits an inability to pay debts generally as they become due; makes an assignment for the benefit of creditors; or authorizes or is deemed to have authorized a receiver, trustee, liquidator, or a conservator to act or to control a substantial portion of any Obligor’s affairs or assets;

	8.06.	If any Obligor: (i) does not fundamentally maintain the financial covenants contained in this Loan Agreement, or (ii) breaches or violates any conditions precedent, representations and warranties, affirmative covenants, negative covenants, miscellaneous provisions, or other terms, sections, addendums, provisions or exhibits contained in, or made in accordance with, this Loan Agreement;

	8.07.	If any of the terms, general requirements, negative covenants, representations, responsibilities, duties, promises, warranties, or miscellaneous sections that are set forth herein or in any of the Loan Documents, are breached;

8.08.

If any Obligor fails to pay any final (adverse) judgment for the payment of money, within thirty (30) days after all appeal rights have unconditionally expired;

8.09.

If any Obligor fails to pay or perform any obligations under any other document, instrument or agreement executed in favor of the Lender, dated of any date, with respect to any other outstanding indebtedness incurred, or loan obtained, at any time, that is not cured within any applicable period of notice, cure or grace;

8.10.

If title to any collateral for the Loan is materially or adversely impacted by operation of law, recording, lien, inchoate right, or otherwise, arising from the actions of an adverse party, creditor or person which is not promptly, diligently and fully restored, or is not promptly, diligently and fully bonded over for the benefit of the Lender for an amount, on terms, and with a bonding company solely acceptable to the Lender;

8.11.

If any of Lender’s collateral for the Loan is lost, stolen, abandoned, seized, damaged or destroyed, other than in the ordinary course of business, and is not covered under any insurance policies;

8.12.

If any of Lender’s collateral for the Loan is used in a manner that violates any regulations, ordinances or laws identified by any federal, state or local governmental authority, which continues to remain uncorrected after the expiration of any applicable period of grace;

8.13.

Except as otherwise previously approved in writing by the Lender, or as may be otherwise permissible under the express terms of any of the other Loan Documents, if any Obligor changes its current legal form of business;

8.14.

If Michael Jacoby shall cease to be a director on and chairman of the Board of Directors of Broad Street Realty, Inc., and within ninety (90) days of such event he has not been replaced as director and chairman of the Board of Directors of Broad Street Realty, Inc. by a competent, experienced person that is acceptable to Lender, in Lender’s sole and absolute discretion;

8.15.

If any interests in the collateral for the Loan are assigned to anyone other than the Lender, except for subordinate assignments to third parties first approved in writing by the Lender;

8.16.

If any representation, warranty or any other statement of fact, contained in any writing, certificate, report, statement or application furnished to the Lender at any time in connection with any Obligor’s obligations and indebtedness to the Lender, shall prove to have been false, misleading or incomplete in any material respect at the time when made or furnished to the Lender;

8.17.

If a breach occurs under the terms of any other security document or instrument now or hereafter existing that: (i) also secures the Loan, or (ii) also encumbers the collateral for the Loan, where the other security document or instrument is otherwise expressly permissible under the terms of any Loan Documents;

8.18.

If any obligation contained in any guaranty agreement executed at any time in favor of the Lender that guarantees the payment of any obligations and indebtedness under the Loan, is: (i) breached or deemed to be breached, (ii) in default, or (iii) not performed;

	8.19.	If that certain separate proposed commercial loan in the amount of $1,436,500.00 to BSV Cromwell Land, and guaranteed by each Borrower and Michael Z. Jacoby (the “Real Estate Loan”), is not closed and funded within thirty (30) days following the date of this Loan Agreement.

	8.20.	If there is a breach or default under any terms of any documents evidencing and/or securing the Real Estate Loan, which breach or default continues following the expiration of any applicable notice and cure period under such documents.

Section 9 Remedies Upon Event of Default

Upon the occurrence of an Event of Default, a default shall also be deemed to have occurred under all other Loan Documents and the Lender may at any time thereafter, at its option, following ten (10) days written notice sent to Borrower to cure any monetary-related default and/or thirty (30) days written notice sent to Borrower to cure any non-monetary default, take any or all of the following actions, at the same or at different times:

9.01.

Without further notice or demand, accelerate or declare all amounts that remain outstanding under any Loan Documents to be immediately due and payable, both as to principal and interest, late fees, and any and all other amounts/expenditures WITHOUT PRESENTMENT, DEMAND, PROTEST, OR NOTICE OF ANY KIND, ALL OF WHICH ARE HEREBY EXPRESSLY WAIVED BY EACH OF THE UNDERSIGNED and such balance(s) shall accrue interest at the Default Rate as provided herein until paid in full;

9.02.

Any obligation of the Lender to advance funds under the terms of any Loan Documents and all other obligations, if any, of the Lender under the Loan Documents shall immediately cease and terminate unless and until Lender shall reinstate such obligation in writing.

9.03.

Exercise any rights of set off against any account, deposit or pledge.

9.04.

Require that additional collateral be pledged to the Lender, the acceptability and sufficiency of such collateral to be determined in the Lender's sole discretion;

9.05.

Take immediate possession of and foreclose upon any or all collateral which may be granted to the Lender as security for the indebtedness and obligations under the Loan Documents; and

9.06.

Exercise any and all other rights and remedies available to the Lender under the terms of any Loan Documents and applicable law, or equity, and in particular the Virginia Uniform Commercial Code.

Section 10 Miscellaneous Provisions

10.01.

Definitions. The following terms below shall have the meanings and include any other provisions specified, be applicable equally to the singular and plural forms of such terms and to all genders, and are incorporated into and expressly made a part of this Loan Agreement:

“Default Rate” shall have the meaning that is set forth in the Note (not to exceed the legal maximum rate) from and after the date of an Event of Default hereunder which shall apply, in the Lender's sole discretion, to all sums owing, including principal and interest, on such date.

“Event of Default” shall have the meaning as defined in this Loan Agreement.

“GAAP” shall mean generally accepted accounting principles as established by the Financial Accounting Standards Board or the American Institute of Certified Public Accountants, as amended and supplemented from time to time.

“Interest Rate” or “Prime Rate” as applicable, shall have the meanings that are or may be set forth in the Note, which may be one of several rate indexes or interest rates that are employed by the Lender when extending credit, and may not necessarily be the Lender's lowest lending rate.

“Loan Documents” shall mean all documents, instruments and agreements of any date executed and delivered in connection with the Loan, and in particular include this Loan Agreement, the Note, the Borrower’s Certificate, any Guaranty, any Assignment, any Security Agreement(s), any and all other additional documents, agreements, certifications, consents, financing statements and resolutions that are contemplated in this Loan Agreement, and any and all renewals, extensions, modifications, duplicates, substitutions, and replacements thereto and therefore at any time or from time to time.

“Obligors” means any person or party liable for any undertakings under this Loan Agreement or any Loan Documents, and/or liable in any capacity to pay the Loan and/or such other sums and indebtedness in accordance with any of the Loan Documents, together with their respective administrators, heirs, successors and assigns.

“Person” shall mean an individual, partnership, corporation, trust, unincorporated organization, limited liability company, limited liability partnership, association, joint venture, or a government agency or political subdivision thereof.

10.03.

Constraints Applicable To Each Borrower and Each Guarantor. No Borrower or Guarantor: (i) shall provide any report, certificate, financial statement, or other document whether furnished prior to, or after the execution of the terms of this Loan Agreement, that proves to be materially false or materially misleading; (ii) shall default on the performance of any other material obligation of indebtedness when due or in the performance of any material obligation incurred in connection with money borrowed, beyond any applicable period of grace if judicial action is not pending in support of such position; (iii) shall cause any of the liens or security interests of the Lender to lapse or lose their priority status; (iv) shall permit any final judgment to be rendered against them for more than thirty (30) days for the payment of money which is not covered by insurance unless such judgment or execution thereon be effectively stayed; and/or (v) shall permit a custodian to be appointed for or take possession of any of their assets, or file voluntarily or involuntarily any insolvency proceeding, or become a debtor under the United States Bankruptcy Code, or be involved in any proceeding to dissolution proceeding, or have a receiver appointed, or make any assignment for the benefit of creditors, or become subject to an attachment, execution, or other judicial seizure of all or any portion of their assets, including an action or proceeding to seize any funds on deposit with the Lender, where such seizure is not promptly discharged.

10.04.

Non-impairment. If any one or more provisions contained herein or in any of the other Loan Documents shall be held invalid, illegal, or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby and shall otherwise remain in full force and effect and binding.

10.05.

No Waiver. Neither the failure nor any delay on the part of the Lender in exercising any right, power or privilege granted in the Loan Documents shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise of any other right, power, or privilege which may be provided by law.

10.06.

Modification. No modification, amendment, or waiver of any provision of this Loan Agreement or any of the Loan Documents shall be effective unless in writing and signed by the Lender.

10.07.

Payment Amount Adjustment. In the event that the interest to be paid on any outstanding principal is, or in the future will be, calculated at a variable (floating) interest rate, and if that interest rate increases from time to time, the Lender, at its sole discretion, may at any time adjust the Borrower's payment amount(s) to prevent the amount of interest accrued in a given period to exceed the periodic payment amount or to prevent any negative amortization to occur so that the total principal amount outstanding can be repaid within the same period of time as originally agreed upon.

10.08.

Other Loan Document Covenants. All covenants contained in all other Loan Documents are hereby incorporated by reference herein.

10.09.

Stamps and Fees. The Borrower shall pay all federal or state stamps, taxes, or other fees or charges, if any are payable or are determined to be payable by reason of the execution, delivery, or issuance of the Loan Documents or any security granted to the Lender; and the Borrower hereby indemnifies and holds harmless the Lender against any and all liability in respect thereof.

10.10.

Attorneys’ Fees. In the event of any uncured Event of Default and the Lender believes it necessary to employ an attorney to assist in the enforcement or collection of the indebtedness to the Lender, to enforce the terms and provisions of this Loan Agreement, or in the event the Lender voluntarily or otherwise should become a party to any suit or legal proceeding including a proceeding conducted under the Bankruptcy Code, each of the undersigned agrees to pay an award to the Lender of attorneys’ fees equal to all actual attorneys’ fees that the Lender reasonably incurs and all costs and expenses of collection or enforcement that may be reasonably incurred by the Lender, and shall be liable for such attorneys’ fees and costs whether or not any suit or proceeding is actually commenced.

10.11.

Lender Making Required Payments. In the event any insurance, taxes, assessments, costs or expenses which are to be paid under the terms hereof or of any Loan Documents, are not paid, or there is a failure to keep any of the properties and assets constituting collateral free from new security interests, liens, or encumbrances, except as permitted herein, Lender may at its election make expenditures for any or all such purposes and the amounts expended together with interest thereon at the Default Rate, shall become immediately due and payable to Lender, and shall have benefit of and be secured by the collateral; provided, however, the Lender shall be under no duty or obligation to make any such payments or expenditures. All such amounts, unless sooner paid, shall be paid by the Borrower when due, or Lender may, at its option, deduct any amounts necessary for the payment of these items from any advance. In Lender’s discretion, Lender may advance funds to pay for charges for the inspections, Lender's attorneys, Lender's fees, service charges, closing attorney, Borrower's attorney, insurance coverage, taxes, assessments, utilities, brokers, liens, encumbrances, corrections, Loan Document modifications, broker's fees, professional’s fees, and any other matters in connection with the collateral or activities pertaining to the collateral, and all such advances shall be reimbursed by the Borrower promptly and until reimbursed, then all advances shall be deemed to be advances under the Loan, secured by the Loan Documents, and remain outstanding obligations of the Borrower.

10.12.

Right of Offset. Any indebtedness owing from Lender to Borrower may be set off and applied by Lender on any indebtedness or liability of Borrower to Lender, at any time and from time to time after maturity, whether by acceleration or otherwise, and without demand or notice to Borrower.

10.13.

Participation. Lender may, without notice to Borrower or any other party, sell participations in or make assignments of any Loan made under this Loan Agreement, and Borrower agrees that any such participant or assignee shall have the same right of setoff as is granted to the Lender herein.

10.14.

UCC Authorization. The Lender is hereby authorized to file such UCC Financing Statements describing the collateral in any location deemed necessary and appropriate by Lender, as well as any amendments or extensions thereto.

10.15.

Modification and Renewal Fees. Lender may, at its option, charge any fees not prohibited by law as a condition of making any modification, renewal, extension, or amendment of any terms of the Loan.

10.16.

Conflicting Provisions. The parties are not aware of any ambiguity that may exist between/among this Loan Agreement, or any of the other Loan Documents. However, it is the intention of the parties hereto that if any ambiguity or conflict exists or arises between/among this Loan Agreement and any other Loan Documents, the ambiguity or conflict shall be interpreted in a manner that serves the best interests of the Lender, and the sentence or paragraph that contains the ambiguity or conflict shall be construed in a manner that continues, furthers or strengthens the secured interests of the Lender acting in its capacity as a prudent secured commercial lender.

10.17.

Notices. Any notice permitted or required by the provisions of this Loan Agreement to be sent to any party to this Loan Agreement shall be deemed to have been properly sent or given when deposited, postage pre-paid, with the United States Post Office by certified mail and return receipt requested, or when deposited, fees pre-paid, with an overnight international express delivery company like Federal Express. The address of each party appearing at the top of this Loan Agreement shall be a sufficient address for each to receive any notice that may be required under this Loan Agreement. The address of the Lender appearing at the top of this Loan Agreement shall be a sufficient address for it to receive any notice hereunder. After the date of this Loan Agreement, any party may change their address by giving notice as provided herein.

10.18.

Consent to Jurisdiction. It is agreed that any legal action or proceeding arising out of or relating to this Loan Agreement may be instituted in the Circuit Court of the County in Virginia where the loan arose or originated, or the United States District Court for the Eastern District of Virginia, or in such other appropriate court and venue as Lender may choose in its sole discretion. The jurisdiction of such courts is hereby consented to, and any objection relating to the basis for personal or in rem jurisdiction or removal to another venue is hereby waived.

10.19.

Indemnification. Each Borrower and each Guarantor hereby jointly and severally indemnifies and defends the Lender, its affiliates, their successors and assigns and their respective directors, officer, employees and shareholders, and does hereby hold each of them harmless from and against, any loss, liability, lawsuit, proceeding, cost expense or damage (including reasonable in-house and outside counsel fees, whether suit is brought or not) arising from or otherwise relating to the closing, disbursement, administration, or repayment of the Loan, including without limitation: (i) the failure to make any payment to the Lender promptly when due under the Loan Documents, whether under any notes evidencing the Loan or otherwise regarding the Loan; (ii) the breach of any representations or warranties to the Lender contained in this Loan Agreement or in any other Loan Documents now or hereafter executed in connection with the Loan; or (iii) the violation of any covenants or agreements made for the benefit of the Lender and contained in any of the Loan Documents; provided, however, that the foregoing indemnification shall not be deemed to cover any loss which is finally determined by a court of competent jurisdiction to result solely from the Lender’s gross negligence or willful misconduct.

10.20.

Counterparts. This Loan Agreement may be executed by the parties hereto in separate counterparts, each of which, when so executed and delivered, shall be an original, but all such counterparts shall together constitute one and the same instrument. Each counterpart may consist of a number of copies hereof, each signed by less than all, but together signed by all, of the parties hereto. Copies of documents or signature pages bearing original signatures, and executed documents or signature pages delivered by a party by telefax, facsimile, or e-mail transmission of an adobe® file format document (also known as a pdf file) shall, in each such instance, be deemed to be, and shall constitute and be treated as, an original signed document or counterpart, as applicable and be deemed to be effective for all purposes. Any party delivering an executed counterpart of this document by telefax, facsimile, or e-mail transmission of an adobe® file format document also shall deliver an original executed counterpart of this document. However, any failure to deliver an original executed counterpart shall not affect the validity, enforceability, and binding effect of this Loan Agreement.

10.21.

Time of the Essence. TIME IS OF THE ESSENCE with respect to the performance of all obligations or undertakings hereunder.

10.22.

Accounting Standards. The preparation and maintenance of all records, financial statements, financial covenants, financial ratios contemplated in this Loan Agreement and/or provided to the Lender shall be made in accordance with GAAP, or a reasonable equivalency, such as tax basis, acceptable to Lender, which shall be noted on such statements.

10.23.

Obligations Joint and Several. The agreements, obligations, warranties, and representations of each Borrower contained herein are joint, several and joint and several with respect to each Borrower. The agreements, obligations, warranties, and representations of each Guarantor contained herein are joint, several and joint and several with respect to each Guarantor.

10.24.

Further Assurances. Each Borrower and each Guarantor will, on reasonable request of Lender, at no expense to Lender: (a) execute, acknowledge, deliver, procure, file or record any document or instrument deemed necessary, desirable, or proper by Lender to protect the liens or security interests created by the Loan Documents against the rights or interests of third persons; (b) execute, acknowledge, deliver, procure, record or file such further documents and do such further acts deemed necessary, desirable or proper by Lender to carry out the purposes of the Loan Documents; (c) promptly correct any defect, error or omission contained in this Loan Agreement or in any other Loan Document; (d) execute and deliver any renewals or continuation statements to the Loan Documents, or any additions, substitutions, replacements, or appurtenances to the collateral for the Loan; and (e) provide such certificates, documents, reports, information, affidavits and other instruments and do such further acts deemed necessary, desirable or proper by Lender to comply with the requirements of any Federal agency, or its auditors, having jurisdiction over Lender.

10.25.

Survival. All terms and provisions contained herein shall survive any and all loan disbursements, and remain in full force and effect at all times thereafter.

10.26.

Applicable Law. This Loan Agreement shall be construed in accordance with and governed by the laws of the Commonwealth of Virginia, without reference to conflict of law principles.

10.27.

No Partnership. Nothing in this Loan Agreement or in any of the other Loan Documents shall be construed to make any Borrower or any Guarantor hereto a partner, a joint venturer, or have an association, or a special arrangement with the Lender herein, or creating a principal-agent relationship or any other relationship except for that of a commercial arms length lending transaction.

10.28.

No Lender Control. It is agreed that the Lender's rights and interests hereunder as well as under the Loan Documents, and the administration thereof, shall not be deemed to indicate that the Lender is in control of the collateral, or in control of any activities or business operations related thereto.

10.29.

No Emails. No messages within any emails that may be sent from one party to another shall have the effect of modifying any of the terms or provisions that are contained within this Loan Agreement or within any of the other Loan Documents, notwithstanding anything that may be contained in any message within any email to the contrary, and no modification or amendment to this Loan Agreement or to any other Loan Documents shall be deemed to occur, unless such modification or amendment is in writing, and an original signature of the parties to the writing appears thereon, and all parties thereto intend to be bound. In the event of a conflict between the terms contained within any email, and this Loan Agreement, the terms of this Loan Agreement shall control.

10.30.

Successors And Assigns. This Loan Agreement shall inure to the benefit of the Lender, and be binding upon the parties hereto and their successors and assigns; but nothing herein shall authorize the assignment hereof by anyone other than the Lender.

10.31.

Subordination. The following are hereby subordinated in all respects to the rights, interests and remedies of the Lender under the Loan Documents and made inferior in priority of time to the Lender first receiving all regular installments and payment in full of the Loan in accordance with the terms of all Loan Documents: (i) all rights, interests and agreements as between or among the Borrower and Guarantor, and (ii) any and all loans made by or between any of the Borrower and/or any Guarantor.

10.32.

Captions And Headings. Captions and headings in this Loan Agreement are for convenience only and shall not affect construing the terms of this Loan Agreement.

10.33.

Entire Agreement. The Loan Documents embody the entire agreement between the parties thereto and the Lender with respect to the Loan, and there are no oral agreements that exist with the Lender with respect to the Loan which are not expressly set forth herein or in the Loan Documents.

10.34.

Tense and Gender. As used in this Loan Agreement, the singular number shall include the plural and the plural number shall include the singular. The use of any tense or gender in this Loan Agreement shall be applicable to all tenses and genders.

10.35.

Assignability. This Loan Agreement may be assigned by the Lender or any holder of the Note at any time or from time to time.

10.36.

WAIVER OF JURY TRIAL. UNLESS EXPRESSLY PROHIBITED BY APPLICABLE LAW, THE UNDERSIGNED HEREBY WAIVE THE RIGHT TO TRIAL BY JURY OF ANY MATTERS, CLAIMS OR CONTINGENT CLAIMS ARISING OUT OF THIS LOAN AGREEMENT OR ANY OF THE LOAN DOCUMENTS EXECUTED IN CONNECTION HEREWITH OR OUT OF THE CONDUCT OF THE RELATIONSHIP BETWEEN THE UNDERSIGNED AND LENDER. THIS PROVISION IS A MATERIAL INDUCEMENT FOR LENDER TO MAKE THE LOAN AND ENTER INTO THIS LOAN AGREEMENT. FURTHER, THE UNDERSIGNED HEREBY CERTIFY THAT NO REPRESENTATIVE OR AGENT OF LENDER, NOR LENDER’S COUNSEL, HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT LENDER WOULD NOT SEEK TO ENFORCE THIS WAIVER OR RIGHT TO JURY TRIAL PROVISION. NO REPRESENTATIVE OR AGENT OF LENDER, NOR LENDER’S COUNSEL, HAS THE AUTHORITY TO WAIVE, CONDITION OR MODIFY THIS PROVISION.

(signatures follow next)

WITNESS our signatures to this Loan Agreement:

Borrower:

Broad Street Operating Partnership, LP

a Delaware limited partnership

By: Broad Street OP GP, LLC

a Delaware limited liability company

its General Partner

By: /s/ Michael Z. Jacoby (seal)

Michael Z. Jacoby

Chief Executive Officer

Broad Street Realty, Inc.

a Delaware corporation

By: /s/ Michael Z. Jacoby (seal)

Michael Z. Jacoby

Chief Executive Officer

Broad Street Realty, LLC

a Maryland limited liability company

By: /s/ Michael Z. Jacoby (seal)

Michael Z. Jacoby

Chief Executive Officer

Guarantor:

BSV Cromwell Land LLC

a Maryland limited liability company

By:/s/ Michael Z. Jacoby (seal)

Michael Z. Jacoby

Chief Executive Officer

/s/ Michael Z. Jacoby (seal)

Michael Z. Jacoby (individually)

PROMISSORY NOTE

(Commercial Term Note)

$4,500,000.00

Dated as of December 27, 2019

IN RETURN FOR A LOAN MADE, OR RECEIVED CONTEMPORANEOUSLY BY THE UNDERSIGNED (the “Loan”), and for other good value received, the undersigned, Broad Street Operating Partnership, LP, a Delaware limited partnership, Broad Street Realty, Inc., a Delaware corporation, and Broad Street Realty, LLC, a Maryland limited liability company, their respective successors and/or assigns (collectively, the “Borrower” for clerical convenience), hereby jointly and severally promise to pay to the order of MVB BANK, INC., a West Virginia banking corporation, its successors and/or assigns (the “Lender”), the principal sum of Four Million Five Hundred Thousand and 00/100 Dollars ($4,500,000.00), without setoff (the “Principal”), in immediate available funds in lawful money of the United States of America, together with interest at the rate or rates specified in this Promissory Note (“Note”) and all other amounts owing pursuant to this Note. The Borrower shall pay this Note at the Lender's address as set forth below, or at such other address as Lender may designate from time to time, in accordance with the terms as hereinafter provided.

1. Definitions. As used in this Note, unless the context otherwise specifies or requires, the following terms below shall have the meanings and include any other provisions specified, be applicable equally to the singular and plural forms of such terms and to all genders, and are incorporated into and expressly made a part of this Note:

“Default” means the occurrence: (i) of an Event of Default (as defined in the Loan Agreement) or (ii) a default under any Loan Documents, that continues to remain in effect after the expiration of any applicable notice and cure period as may be set forth in the Loan Agreement or in any of the applicable Loan Documents.

“Guarantors” means: BSV Cromwell Land LLC, a Maryland limited liability company, and Michael Z. Jacoby (individually), jointly and severally, their respective heirs, successors, and/or assigns.

“Loan Agreement” means the Loan Agreement dated as of the date of this Note, executed and delivered in connection with this Note, as the Loan Agreement may be amended or modified from time to time.

“Loan Documents” means the Loan Documents as defined in the Loan Agreement, and are inclusive of this Note, an Unconditional Guaranty Agreement, the Security Agreement and Collateral Assignment, and all other documents, instruments and agreements evidencing, securing, and/or delivered in connection with the Loan, and any all amendments, modifications, duplicates, and/or supplements thereto.

“Obligations” means all of the monetary and other obligations that are due or owing to the Lender: (i) that arise under this Note, (ii) that arise under the terms of any of the other Loan Documents, (iii) that arise under any indemnification or demand instruments, and/or (iv) that arise conditionally, or that may arise in the future under any agreed upon contingent or standby commitments of any kind, whatsoever.

Promissory Note
(Commercial Term Note)

“Obligors” means any person or party liable for any undertakings under any Loan Documents, and/or liable in any capacity to pay the Loan and/or such other sums and indebtedness in accordance with any of the Loan Documents, together with their respective administrators, heirs, successors and/or assigns.

“Party” means all parties to any of the Loan Documents.

“Security Agreement” means any and all security documents, agreements and/or instruments executed in favor of the Lender of any date to secure the Loan evidenced by this Note, and in particular that certain Security Agreement dated as of the date of this Note from each Borrower to and for the benefit of the Lender, and any amendments, modifications, supplements or duplicates thereof.

3. Calculation of Interest. Interest shall be calculated on the basis of a three hundred sixty (360) days per year factor applied to the actual days on which there exists an unpaid disbursed principal balance.

4. Repayment.

(a) The Lender shall be paid regular installments of principal and interest in an amount that is determined by the Lender based on the Principal and a ten (10) year amortization schedule. These installments shall commence on the ___ day of January, 2020, and shall continue to be paid to the Lender on that same calendar day of each succeeding month thereafter.

(b) If Lender at any time determines that it has miscalculated the amount of any installment(s) due, Lender shall give notice to Borrower of the corrected amount, and (i) if the corrected amount represents an increase that is due, then Borrower shall, as of the next scheduled installment thereafter, pay to Lender any sums Borrower would have otherwise been obligated to pay to Lender had the amount of such installment(s) not been miscalculated, or (ii) if the corrected amount of such installment(s) represents a decrease that is due and Borrower is not otherwise in Default then Borrower shall receive a credit against this Note, as of the next scheduled monthly payment, in an amount equal to the sums that Borrower would not have otherwise been obligated to pay to Lender had the amount of such monthly payment not been miscalculated. In addition, the Lender shall have the right to correct patent errors or omissions in this Note without affecting the validity of this Note or the liability of any Party.

(c) In the event that a condition occurs where negative amortization could arise under this Note, as determined solely by Lender, it is agreed that the Lender may require that an additional amount be paid with any installment, and continually thereafter in a sufficient amount to properly amortize the Loan so that in no event whatsoever is there any negative amortization. All calculations and determinations of the amount of installments due under this Note shall be determined solely by the Lender, and absent manifest error shall be binding upon the Borrower.

Promissory Note
(Commercial Term Note)

5. Method of Payment. All payments of principal, interest, costs and fees hereunder shall be made in immediately available funds to the Lender at 12100 Sunset Hills Road, Suite 130, Reston, Virginia 20190, or at any other location of the Lender specified in writing by the Lender to the Borrower, by noon (local time) on the date when due.

6. Application of Payments. All payments made under this Note shall be applied, as of the date received, first to late payment fees, fees and expenses or other sums owed to the holder, under this Note and any other Loan Document, next to accrued interest, and then to principal, or in such other order or proportion as the holder of this Note, in the holder's sole and absolute discretion, may elect.

7. Maturity. The maturity date is the date when the outstanding principal balance of this Note and all accrued interest then unpaid, together with all other amounts, costs and fees, if any, outstanding, shall be and become immediately due and payable in full (the “Maturity Date”). The Maturity Date is December __, 2022.

8. Extensions of Maturity by Holder. Each Obligor who executes this Note hereby gives consent to the holder of this Note unilaterally, in its sole discretion, extending the Maturity Date or the date of any installment that is due hereunder, at any time or from time to time, without notice, without the necessity of any party hereto executing any additional agreement, and without releasing, discharging, or adversely affecting the liability or Obligations of any Party, whatsoever. The terms of this section shall remain in full force and effect regardless if the holder requires the execution of a modification agreement in connection with any such extension, and regardless of whether or not Borrower executes and delivers such modification agreement. Notwithstanding the preceding sentence, Borrower agrees to execute, acknowledge and deliver any such modification agreement prepared by Lender or its counsel, and such agreement shall be prepared at the sole expense of the Borrower.

9. Late Payment Fee. Should any monthly installment due hereunder (whether principal and/or interest) be received more than ten (10) days after its due date (excluding upon maturity or acceleration), regardless whether notice thereof is sent to the Borrower, the Borrower shall pay a late payment fee equal to five percent (5.00%) of the amount then due.

10. Voluntary Prepayment. Borrower may from time to time prepay, in whole or in part, the amounts owed under the Loan; provided however, partial prepayments will not affect the due date or the scheduled monthly installment amounts due under this Note.

11. Reserved.

12. Notices. Any notice required or permitted by or in connection with this Note shall be in writing and: (i) if sent to the Lender shall be at its address as set forth in the Loan Agreement, and shall be properly sent when deposited in the United States Mail, postage pre-paid, certified mail, return receipt requested, or when deposited with a recognized international overnight delivery service company, fees pre-paid, and (ii) if sent to the Borrower shall be deemed to be properly sent when deposited in the United States Mail, postage pre-paid, certified mail, return receipt requested, or when deposited with a recognized international overnight delivery service company, fees pre-paid, and addressed to the Borrower as follows: 7250 Woodmont Avenue, Suite 350, Bethesda, Maryland 20814, Attn: Michael Jacoby.

Promissory Note
(Commercial Term Note)

13. Default; Acceleration Upon Default. The Borrower shall be in immediate default under this Note at such time as a Default has occurred and continues beyond any applicable notice and cure period under the Loan Documents. Notwithstanding anything that may be contained in this Note or in any of the other Loan Documents to the contrary, upon a Default: (i) the maturity of any or all Obligations may, at Lender’s sole option, be accelerated, and (ii) the holder may, in the holder's sole and absolute discretion and without notice or demand, declare the entire unpaid balance of Principal plus accrued interest and any other sums and amounts due hereunder immediately due and payable in full. Reference is made to the Security Agreement and all other Loan Documents for further and additional rights that are available to the holder of this Note to accelerate and declare the entire unpaid balance of principal plus accrued interest and any other sums due hereunder immediately due and payable.

14. Rate After Default. Notwithstanding anything contained in this Note to the contrary, in the event of a breach of the Deposit Requirement covenant (as described and defined in the Loan Agreement), such breach shall not constitute a default or Event of Default, but the interest rate then in effect under this Note shall automatically increase by one percent (1.00%) above the interest rate that is then in effect under this Note, without the need for notice to Borrower, as provided in the Loan Agreement. Upon the occurrence and continuance of a Default, all amounts owed hereunder shall bear interest until paid in full at five (5) percentage points above the interest rate that is in effect under this Note (the “Default Rate”).

15. Interest Rate After Maturity and After Judgment. Even though the maturity date of this Note may have passed, this Note shall continue to bear interest at the Default Rate. If judgment is entered against the Borrower on this Note, the amount of the judgment entered (which may include principal, interest, default interest, late charges, fees, and costs) shall bear interest at the Default Rate.

16. Expenses of Collection. The Borrower shall pay all of the Lender's costs, fees, and expenses resulting from any enforcement action, or which may be incurred in connection with the defense of this Note by Lender against any claim or cause of action, including an award of attorneys’ fees in the amount of all actual attorneys’ fees which the Lender may reasonably incur, until paid in full.

17. Waiver of Protest. Each Obligor who signs this Note hereby waives presentment, notice of dishonor and protest and any and all lack of diligence or delays in the collection or enforcement hereof, and expressly consents to the renewal of any and all Obligations, any release or any other indulgence or forbearance, which may be without notice to any Party.

Promissory Note
(Commercial Term Note)

18. Set-off. The Borrower agrees that whenever the Lender has the right to declare the Obligations to be immediately due and payable in full (whether or not it has so declared), the Lender and any branch or affiliate acting on its behalf is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set-off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other indebtedness at any time owing by the Lender or any branch or affiliate of the Lender acting on its behalf to or for the credit or the account of any party signatory hereto against any and all of the obligations of such party to the Lender, irrespective of whether the Lender shall have made any demand under this Note and although such obligations may be unmatured. The Lender agrees promptly to notify such party after any such set-off and application, provided, that, the failure to give such notice shall not affect the validity of such set-off and application. Although the Lender may in its discretion take any act to confirm, indicate, or otherwise evidence a set-off, such act shall not be deemed to be necessary for an effective set-off. The rights of the Lender under this paragraph are in addition to other rights and remedies (including, without limitation, other rights of set-off) which the Lender may have. The Borrower agrees that the Lender shall have a lien on and a continuing security interest in: (i) all instruments, documents, securities, cash, property and the proceeds of any of the foregoing, owned by the Borrower or in which the Borrower has an interest, which now or hereafter are at any time in possession or control of the Lender or in transit by mail or carrier to or from the Lender or in the possession of any third party acting on behalf of the Lender, without regard to whether the Lender received the same in pledge, for safekeeping, as agent for collection or transmission or otherwise or whether the Lender had conditionally released the same, and (ii) all other property of such party in which a security interest in favor of the Lender now exists or is hereafter created pursuant to any written agreement now in effect or hereafter executed by such party, all of which shall at all times constitute additional security for all Obligations to the Lender, except for “consumer credit” subject to the disclosure requirements of the Federal Truth in Lending Act.

19. Commercial Loan; Voluntary Involvement. It is hereby covenanted and warranted that the loan evidenced by this Note is being obtained and will be used solely for business, investment or commercial purposes, and is the result of a commercial loan transaction and no truth-in-lending, similar laws or laws constituting limitations regarding interest, are applicable.

20. Security. This Note and the other Loan Documents are secured by:

(a) the Security Agreement,

(b) a Collateral Assignment, and any amendments, modifications, duplicates or supplements thereof, and

(c) any and all other security documents executed in connection with the Loan, and any amendments, modifications, duplicates or supplements thereof.

21. Choice of Law; Consent to Jurisdiction and Venue. The laws of the Commonwealth of Virginia, without reference to conflicts of laws principles, shall govern this Note, and the interpretation and construction and enforceability thereof and any and all issues relating to the transactions contemplated herein. It is expressly acknowledged that the Loan arose in the Commonwealth of Virginia.

Promissory Note
(Commercial Term Note)

22. Invalidity of Any Part. If any provision or part of any provision of this Note shall for any reason be held invalid, illegal or unenforceable in any respect, such invalidity or unenforceability shall not affect any other provisions of this Note and this Note shall be construed as if such invalid, illegal or unenforceable provision or part thereof had never been contained herein, but only to the extent of its invalidity, illegality or unenforceability.

23. Estoppel Certificate. The Borrower agrees to furnish to the holder of this Note at any time and from time to time, within ten (10) days after a written request from the holder of this Note (but not more often than once in any twelve month period), a written estoppel certificate, duly executed and acknowledged, setting forth the amount then due under this Note, and whether any claims, offset or defense is then known to exist under this Note.

24. Tense and Gender. As used herein, the term “Lender” includes the singular and the plural and refers to all genders.

25. Assignability. This Note: (i) may not be assigned by the Borrower without the prior written consent of the Lender, and (ii) may be assigned by the Lender or any holder of this Note at any time or from time to time.

26. Time of Essence. Time shall be of the essence of each and every provision of this Note and the other Loan Documents.

27. Binding Nature. This Note shall inure to the benefit of and be enforceable by the Lender and the Lender's successors and/or assigns and any other person to whom the Lender may grant an interest in the Borrower's obligations to the Lender, and shall be binding and enforceable against the Borrower and the Borrower's successors and/or assigns.

28. Paragraph Headings. The paragraph headings used within this Note are for convenience only, and shall not affect the meanings set forth in such paragraphs, or in this Note.

29. Obligations Joint and Several. The agreements, obligations, warranties and representations of Borrower contained herein are joint, several and joint and several with respect to each Party who is a Borrower.

30. Incorporation of Loan Documents. The Loan Documents are expressly made a part of this Note by this reference in the same manner and with the same effect as if set forth herein at length and any holder of this Note is entitled to the benefits of and remedies provided in the other Loan Documents.

31. Counterparts. Separate signatures are permissible, and all signatures hereto may be provided by the parties hereto in separate counterparts, each of which, when so executed and delivered, shall be an original, but all such counterparts shall together constitute one and the same instrument. Each counterpart may consist of a number of copies hereof, each signed by less than all, but together signed by all, of the parties hereto. Copies of documents or signature pages bearing original signatures, and executed documents or signature pages delivered by a party by telefax, facsimile, or e-mail transmission of an Adobe® file format document (also known as a PDF file) shall, in each such instance, be deemed to be, and shall constitute and be treated as, an original signed document or counterpart, as applicable and be deemed to be effective for all purposes. Any party delivering an executed counterpart of this document by telefax, facsimile, or e-mail transmission of an Adobe® file format document also shall deliver an original executed counterpart of this document, but the failure to deliver an original executed counterpart shall not affect the validity, enforceability, and binding effect of this instrument.

Promissory Note
(Commercial Term Note)

32. Intentionally Deleted.

33. WAIVERS. EACH OF THE OBLIGORS AGREES THAT IT WILL NOT BE NECESSARY FOR THE LENDER, IN ORDER TO ENFORCE PAYMENT OF THIS NOTE BY ANY PARTY, TO FIRST INSTITUTE SUIT AGAINST ANY OTHER PARTY. EACH OF THE OBLIGORS HEREBY EXPRESSLY RELINQUISHES AND WAIVES (TO THE EXTENT THE SAME MAY BE LAWFULLY WAIVED) EACH AND EVERY RIGHT, DEFENSE OR CLAIM THAT FOLLOWS: (a) ANY RIGHT TO REQUIRE LENDER TO FIRST ENFORCE ITS REMEDIES AGAINST ANY PARTICULAR PARTY; (b) ANY RIGHT TO REQUIRE LENDER TO HAVE RECOURSE AGAINST ANY COLLATERAL; (c) ANY AND ALL RIGHTS UNDER OR PURSUANT TO SECTIONS 49-25 AND 49-26 OF THE CODE OF VIRGINIA, 1950 AS AMENDED; (d) ANY DEFENSE ARISING BY REASON OF ANY DISABILITY, OR THE DISABILITY OF ANY OF THE OTHER OBLIGORS; (e) ALL RIGHTS OF CONTRIBUTION, SUBROGATION OR REIMBURSEMENT AS AMONG THE OBLIGORS, UNTIL ALL INDEBTEDNESS UNDER THE LOAN SHALL HAVE BEEN PAID IN FULL TO THE LENDER; (f) ALL RIGHTS OF OR TO PRESENTMENTS, DEMANDS FOR PERFORMANCE, NOTICES OF NONPERFORMANCE, PROTESTS, NOTICES OF PROTEST, DEMANDS, NOTICES OF DEMANDS, NOTICES OF DISHONOR, NOTICES OF NON-PAYMENT AND OF THE EXISTENCE, CREATION, OR INCURRING OF NEW OR ADDITIONAL INDEBTEDNESS OF THE BORROWER; (g) ALL RIGHTS TO REQUIRE WRITTEN ACCEPTANCE OF THIS NOTE BY LENDER; (h) ALL RIGHTS TO A TRIAL BY JURY WITH RESPECT TO ANY DEFENSES, CLAIMS OR COUNTERCLAIMS BROUGHT HEREUNDER; (i) THE RIGHT TO INTERPOSE ANY DEFENSE BASED UPON ANY STATUTE OF LIMITATIONS OR ANY CLAIM OF LACHES, INDULGENCES, DETERIORATION OF SECURITY, EXTENSION OF TIME OF PAYMENT, RENEWALS AND MODIFICATIONS; AND (j) THE RIGHT TO ASSERT ANY SET-OFF IN FAVOR OF ANY OBLIGOR PRIOR TO PAYMENT IN FULL TO THE LENDER. EACH OF THE OBLIGORS REPRESENTS AND WARRANTS THAT LEGAL COUNSEL OF CHOICE HAS BEEN AVAILABLE TO REVIEW AND INTERPRET THIS NOTE AND ALL WAIVERS AND RELEASES CONTAINED HEREIN, SAID COUNSEL HAVING BEEN AVAILABLE TO EXPLAIN AND ADVISE EACH OF THE OBLIGORS AS TO THE NOTE'S CONTENTS AND MEANING. MOREOVER, EACH OF THE OBLIGORS FURTHER REPRESENTS AND WARRANTS THAT EACH UNDERSTANDS THIS NOTE HAVING SEEN AND READ ITS CONTENTS, AND IS EXECUTING THIS NOTE VOLUNTARILY AND WITH THE FREE CONSENT AND DESIRE OF EACH OBLIGOR FOR GOOD AND VALUABLE CONSIDERATION. EACH OBLIGOR HAS REVIEWED AND APPROVED EACH OF THE ABOVE RELEASES AND WAIVERS AND HAS FREELY AGREED TO EXECUTE THIS NOTE.

(signatures appear on next page)

Promissory Note
(Commercial Term Note)

WITNESS our signatures to this Promissory Note:

Borrower:

Broad Street Operating Partnership, LP

a Delaware limited partnership

By: Broad Street OP GP, LLC

a Delaware limited liability company

its General Partner

By:/s/ Michael Z. Jacoby (seal)

Michael Z. Jacoby

Chief Executive Officer

Broad Street Realty, Inc.

a Delaware corporation

By:/s/ Michael Z. Jacoby (seal)

Michael Z. Jacoby

Chief Executive Officer

Broad Street Realty, LLC

a Maryland limited liability company

By:/s/ Michael Z. Jacoby (seal)

Michael Z. Jacoby

Chief Executive Officer

STATE OF MARYLAND

CITY/COUNTY OF MONTGOMERY, to wit:

The foregoing instrument was acknowledged before me, a notary public, this 13th day of December, 2019, by Michael Z. Jacoby, as Chief Executive Officer of Broad Street OP GP, LLC, a Delaware limited liability company, the General Partner of Broad Street Operating Partnership, LP, a Delaware limited partnership, as Chief Executive Officer of Broad Street Realty, Inc., a Delaware corporation, and as Chief Executive Officer of Broad Street Realty, LLC, a Maryland limited liability company.

My Commission Expires: May 25, 2021	/s/ Hope Cantarilho
Registration Number: 227861	Notary Public

(signatures continue on next page)

Promissory Note
(Commercial Term Note)

WITNESS the following signatures and seals to this Promissory Note (continued):

The undersigned jointly and severally agree: (i) that each is also an Obligor (as defined in this Note) and consent to the applicable provisions regarding an Obligor, and (ii) to unconditionally and absolutely guarantee payment of all of the terms and conditions herein in accordance with the terms of that certain Unconditional Guaranty Agreement dated of even date herewith:

Guarantors:

BSV Cromwell Land LLC

a Maryland limited liability company

By:/s/ Michael Z. Jacoby (seal)

Michael Z. Jacoby

Chief Executive Officer

/s/ Michael Z. Jacoby (seal)

Michael Z. Jacoby (individually)

STATE OF MARYLAND

CITY/COUNTY OF MONTGOMERY, to wit:

The foregoing instrument was acknowledged before me, a notary public, this 13th day of December, 2019, by Michael Z. Jacoby, as the Chief Executive Officer of BSV Cromwell Land LLC, a Maryland limited liability company, and individually.

My Commission Expires: May 25, 2021	/s/ Hope Cantarilho
Registration Number: 227861	Notary Public

Promissory Note
(Commercial Term Note)

PROMISSORY NOTE

(Revolving Line of Credit Note)

$2,000,000.00

Dated as of December 27, 2019

IN RETURN FOR A LOAN MADE, OR RECEIVED CONTEMPORANEOUSLY BY THE UNDERSIGNED (the “Loan”), and for other good value received, the undersigned, Broad Street Operating Partnership, LP, a Delaware limited partnership, Broad Street Realty, Inc., a Delaware corporation, and Broad Street Realty, LLC, a Maryland limited liability company, their respective successors and/or assigns (collectively, the “Borrower” for clerical convenience), hereby jointly and severally promise to pay to the order of MVB BANK, INC., a West Virginia banking corporation, its successors and/or assigns (the “Lender”), the principal sum of Two Million and 00/100 Dollars ($2,000,000.00), or so much thereof as may be advanced and/or re-advanced from time to time, without setoff (the “Principal”), in immediate available funds in lawful money of the United States of America, together with interest at the rate or rates specified in this Promissory Note (“Note”) and all other amounts owing pursuant to this Note. The Borrower shall pay this Note at the Lender's address as set forth below, or at such other address as Lender may designate from time to time, in accordance with the terms as hereinafter provided.

Promissory Note
(Revolving Line of Credit Note)

“Party” means all parties to any of the Loan Documents.

“Prime Rate” means the rate which at all times equals the fluctuating “U.S. Prime Rate” of interest identified as such and as published from time to time in “Money Rates” section of The Wall Street Journal as the “U.S. Prime Rate”, and the Prime Rate for any given day will be determined using The Wall Street Journal “U.S. Prime Rate” reported as of such day, notwithstanding the fact that such rate may actually be published on a later date and in the event more than one “U.S. Prime Rate” shall be reported, the Prime Rate for purposes hereof shall be the highest such published “U.S. Prime Rate”. The rate of interest accruing hereunder: (i) shall adjust from time-to-time without notice, and be immediately effective at the same time as any change to the “U.S. Prime Rate”, and (ii) may not be the lowest rate, the best rate, or a favored rate actually charged to any customer, and may not correspond with future increases or decreases in interest rates charged by other lenders. If the rate shall cease to be so published, the Lender will select in its discretion a successor source for the “U.S. Prime Rate” that shall yield a comparable rate and all such rate selections shall be binding. The rate of interest charged under this Note shall change immediately and contemporaneously with any change in the “U.S. Prime Rate”.

2. Accrual of Interest. Commencing as of the date of this Note, and continuing daily thereafter, the unpaid Principal balance of this Note that remains outstanding shall accrue interest and be calculated at a floating per-annum interest rate that is equal to the sum of the Prime Rate, plus a gross margin of one and one-half percent (1.50%) (collectively, the “Interest Rate”), as calculated and determined by the Lender; provided, however, in no event whatsoever shall the Interest Rate that is charged to the Borrower under this Note ever be less than six and three-quarters percent (6.75%) per annum.

Promissory Note
(Revolving Line of Credit Note)

4. Repayment.

(a) The Lender shall be paid regular installments of interest in an amount determined by the Lender based on the outstanding Principal. These installments shall commence on the ___ day of January, 2020, and shall continue to be paid to the Lender on that same calendar day of each succeeding month thereafter.

Promissory Note
(Revolving Line of Credit Note)

11. Unused Principal. In the event the full principal amount of this Note has not been disbursed under the terms of any Loan Documents by the date that is thirty (30) days prior to the Maturity Date, any obligation of the Lender to disburse any remaining amount of principal shall terminate and be of no force or effect.

Promissory Note
(Revolving Line of Credit Note)

20. Security. This Note and the other Loan Documents are secured by:

(a) the Security Agreement,

(b) a Collateral Assignment, and any amendments, modifications, duplicates or supplements thereof, and

(c) any and all other security documents executed in connection with the Loan, and any amendments, modifications, duplicates or supplements thereof.

24. Tense and Gender. As used herein, the term “Lender” includes the singular and the plural and refers to all genders.

26. Time of Essence. Time shall be of the essence of each and every provision of this Note and the other Loan Documents.

28. Paragraph Headings. The paragraph headings used within this Note are for convenience only, and shall not affect the meanings set forth in such paragraphs, or in this Note.

Promissory Note
(Revolving Line of Credit Note)

32. Intentionally Deleted.

(signatures appear on next page)

Promissory Note
(Revolving Line of Credit Note)

WITNESS our signatures to this Promissory Note:

Borrower:

Broad Street Operating Partnership, LP

a Delaware limited partnership

By: Broad Street OP GP, LLC

a Delaware limited liability company

its General Partner

By:/s/ Michael Z. Jacoby (seal)

Michael Z. Jacoby

Chief Executive Officer

Broad Street Realty, Inc.

a Delaware corporation

By:/s/ Michael Z. Jacoby (seal)

Michael Z. Jacoby

Chief Executive Officer

Broad Street Realty, LLC

a Maryland limited liability company

By:/s/ Michael Z. Jacoby (seal)

Michael Z. Jacoby

Chief Executive Officer

STATE OF MARYLAND

CITY/COUNTY OF MONTGOMERY, to wit:

My Commission Expires: May 25, 2021	/s/ Hope Cantarilho
Registration Number: 227861	Notary Public

(signatures continue on next page)

Promissory Note
(Revolving Line of Credit Note)

WITNESS the following signatures and seals to this Promissory Note (continued):

Guarantors:

BSV Cromwell Land LLC

a Maryland limited liability company

By:/s/ Michael Z. Jacoby (seal)

Michael Z. Jacoby

Chief Executive Officer

/s/ Michael Z. Jacoby (seal)

Michael Z. Jacoby (individually)

STATE OF MARYLAND

CITY/COUNTY OF MONTGOMERY, to wit:

My Commission Expires: May 25, 2021	/s/ Hope Cantarilho
Registration Number: 227861	Notary Public

Promissory Note
(Revolving Line of Credit Note)

Exhibit 10.4

TAX PROTECTION AGREEMENT

THIS TAX PROTECTION AGREEMENT (this “Agreement”) is made and entered into effective as of December 27, 2019 (the “Effective Date”) by and among Broad Street Realty, Inc., a Delaware corporation (the “Company”), Broad Street Operating Partnership, LP, a Delaware limited partnership (the “Operating Partnership”), the persons listed on Schedule 1 hereto (each an “Initial Protected Partner” and, together, the “Initial Protected Partners”), and any substitute or additional Protected Partners becoming a party hereto after the date hereof and in accordance with the terms hereof. Each of the parties to this Agreement is individually referred to herein as a “Party” and collectively as the “Parties”.

WHEREAS, the Initial Protected Partners together own 100% of the membership interests in BSV Colonial Investor LLC, a Delaware limited liability company (the “Property LLC”),

WHEREAS, the Property LLC directly or indirectly holds a fee simple interest in the property known as “Midtown Colonial” located at 1234 Richmond Road, Williamsburg, Virginia (the “Underlying Property”);

WHEREAS, pursuant to that certain Agreement and Plan of Merger, dated as of May 28, 2019, by and among the Company, the Operating Partnership, BSV Colonial Merger Sub LLC and the Property LLC (the “Merger Agreement”), the Property LLC will be merged with and into BSV Colonial Merger Sub LLC, with the Property LLC being the surviving entity (the “Merger”), and all of the outstanding membership interests in the Property LLC will be converted into the right to receive units of limited partnership interest in the Operating Partnership (the “OP Units”); and

WHEREAS, the Parties desire to enter into this Agreement to account for certain U.S. federal and state income tax (“Tax”) consequences in connection with any future direct or indirect disposition of the Underlying Property by the Operating Partnership, and certain indebtedness of the Operating Partnership and its Subsidiaries.

NOW, THEREFORE, in consideration of the premises and the mutual representations, warranties, covenants and agreements contained herein and in the Merger Agreement, the parties hereto hereby agree as follows:

ARTICLE I
DEFINITIONS

To the extent not otherwise defined herein, capitalized terms used in this Agreement shall have the meanings ascribed to them in the Merger Agreement.

“Accounting Firm” has the meaning set forth in Section 4.2.

“Affiliate” of a person means any other person Controlling, Controlled by, or under common Control with such person.

“Agreement” has the meaning set forth in the recitals.

“Business Day” means any day except a Saturday, a Sunday, or other day on which commercial banks in the City of New York are authorized or obligated by law to close.

“Cash Consideration” has the meaning set forth in Section 2.3(ii).

“Code” means the Internal Revenue Code of 1986, as amended.

“Control,” including the terms “Controlling,” “Controlled by,” and “under common Control with,” means possession, directly or indirectly (through one or more intermediaries), of the power to direct or cause the direction of the management or policies (whether through ownership of voting securities, by contract or otherwise) of a person.

“Deficit Restoration Obligation” or “DRO” means a written obligation by a Protected Partner, entered into in accordance with the provisions of Article III, pursuant to which such Protected Partner undertakes to restore a limited amount (equal to the DRO Amount of such DRO) of any deficit in its Capital Account balance in the Operating Partnership in accordance with any applicable requirements of Treasury Regulations Section 1.704-1(b)(2)(ii)(c). For the avoidance of doubt, such an obligation shall be treated as a DRO only to the extent that the corresponding DRO Amount is recognized as a limited deficit restoration obligation of the Protected Partner with respect to the Operating Partnership for purposes of Treasury Regulations Section 1.704-1(b)(2)(iv)(d)(2) (disregarding for this purpose any limitation imposed by Treasury Regulations Section 1.752-2(k)).

“DRO Amount” means, with respect to any DRO, the dollar amount of Capital Account deficit specified therein that the relevant Protected Partner undertakes an obligation to restore in accordance with the terms of such DRO.

“Effective Date” has the meaning set forth in the recitals.

“Guaranteed Amount” means, with respect to any Guaranteed Debt and any Partner Guarantor, the aggregate amount of such Guaranteed Debt that is guaranteed by such Partner Guarantor and for which such Partner Guarantor is treated as having “economic risk of loss” for purposes of Treasury Regulations Section 1.752-2 as a result of such guarantee.

“Guaranteed Debt” means any loan existing, incurred or assumed by the Operating Partnership or any Subsidiaries treated for U.S. federal income tax purposes as a partnership or entity disregarded as separate from its owner that is guaranteed in whole or in part by Partner Guarantors at any time on or after the Closing Date pursuant to Article III hereof.

“Initial Units” means the Units initially received in the Merger by the Initial Protected Partners (i) reduced by the number of Units disposed of by the Protected Partners to Excluded Transferees that do not become Protected Partners with respect to such Units and (ii) adjusted appropriately to take into account Unit splits, Unit recapitalizations, a merger or similar restructuring of the Operating Partnership and similar such events.

“Initial Protected Partners” has the meaning set forth in the recitals.

“OP Agreement” means the Agreement of Limited Partnership of the Operating Partnership, dated as of May 21, 2019.

“OP Units” has the meaning set forth in the recitals.

“Operating Partnership” has the meaning set forth in the recitals.

“Merger” has the meaning set forth in the recitals.

“Minimum Liability Amount” means, for each Protected Partner, the amount set forth on Schedule 4 hereto next to such Protected Partner’s name, as amended from time to time.

“Nonrecourse Liability” means a liability described in Section 465(b)(6)(A) and Treasury Regulations Section 1.752-1(a)(2).

“Partner Guarantor” means a Protected Partner who has guaranteed any portion of a Guaranteed Debt.

“Partnership Interest Consideration” has the meaning set forth in Section 2.3(ii).

“Pre-Merger Gain” means, with respect to each Protected Property and as reflected on Schedule 3 hereof, the excess of: (i) the fair market value of such Protected Property as of the Effective Date; over (ii) the adjusted tax basis of the Protected Property immediately after the Merger (taking into account any income or gain recognized as a result of the Merger).

“Proceeding” has the meaning set forth in Section 6.1.

“Property LLC” has the meaning set forth in the recitals.

“Protected Gain” shall mean the amount of Pre-Merger Gain, without duplication, that would be allocated to and recognized by a Protected Partner under Section 704(c) of the Code in the event of the sale of the Protected Properties in a fully taxable transaction; provided, however, Protected Gain shall exclude any gain recognized by a Protected Partner under the Code pursuant to the Merger. For purposes of calculating the amount of Pre-Merger Gain allocable to a Protected Partner under Section 704(c) of the Code: (A) such amount of gain shall be reduced by adjustments to the amount of gain subject to Section 704(c) as of the Effective Date pursuant to the Treasury Regulations thereunder; and (B) any “reverse Section 704(c) gain” allocable to such Partner pursuant to Treasury Regulations Section 1.704-3(a)(6) shall not be taken into account unless, as a result of adjustments to the “book value” of any Protected Property pursuant to the OP Agreement, all or a portion of the gain recognized by the Operating Partnership that would have been Section 704(c) gain without regard to such adjustments becomes or is treated as “reverse Section 704(c) gain” or Section 704(b) gain under Section 704 of the Code, in which case such gain shall continue to be treated as Section 704(c) gain.

“Protected Partner” means (i) each of the Initial Protected Partners and (ii) any person who acquires Units from a Protected Partner in a transaction in which gain or loss is not recognized in whole or in part and in which such transferee’s adjusted basis, as determined for U.S. federal income tax purposes, is determined in whole or in part by reference to the adjusted basis of a Protected Partner in such Units.

“Protected Property” means (i) the Property LLC and the Underlying Property; (ii) a direct or indirect interest owned by the Operating Partnership in any Subsidiary that owns an interest in a Protected Property, if the disposition of such interest would result in the recognition of Protected Gain with respect to a Protected Partner; and (iii) any other property that the Operating Partnership directly or indirectly receives that is in whole or in part a “substituted basis property” as defined in Section 7701(a)(42) of the Code with respect to a Protected Property or interest therein and listed on Schedule 2 hereof. For the avoidance of doubt, if any Protected Property is transferred to another entity in a transaction in which gain or loss is not recognized, and if the acquiring entity’s disposition of such Protected Property would cause a Protected Partner to recognize gain or loss as a result thereof, such Protected Property shall remain subject to this Agreement.

“Start Date” means the Effective Date.

“Subsidiary” means any entity in which the Operating Partnership owns a direct or indirect interest.

“Successor Partnership” has the meaning set forth in Section 2.2(i).

“Tax” has the meaning set forth in the recitals.

“Tax Claim” has the meaning set forth in Section 6.1.

“Tax Protection Period” means the period commencing on the Start Date and ending at 12:01 AM on the day after the seven (7) year anniversary of the Start Date; provided, however, that with respect to a Protected Partner, the Tax Protection Period shall terminate at such time as such Protected Partner (or one or more successor Protected Partners) has disposed of fifty percent (50%) or more of the OP Units received, directly or indirectly, in the Merger by such Protected Partner in one or more taxable transactions.

“Underlying Property” has the meaning set forth in the recitals.

“Units” means the OP Units, and any other interest in an entity taxable as a partnership for U.S. federal income tax purposes into which such OP Units are directly or indirectly converted pursuant to a state law conversion of the Operating Partnership, a merger of the Operating Partnership or a contribution of substantially all the assets and liabilities of the Operating Partnership.

ARTICLE II
RESTRICTIONS ON DISPOSITIONS OF
PROTECTED PROPERTIES

2.1 General Prohibition on Disposition of Protected Properties. The Operating Partnership agrees, for the benefit of each Protected Partner and for the term of the Tax Protection Period, not to directly or indirectly sell, exchange, transfer or otherwise dispose of a Protected Property or any interest therein (without regard to whether such disposition is voluntary or involuntary) in a transaction that would cause a Protected Partner to recognize any Protected Gain under Section 704(c) of the Code. Without limiting the foregoing, (i) any transaction or event that would cause a Protected Partner to recognize gain for U.S. federal income tax purposes with respect to any Protected Property or any direct or indirect interest therein will be treated as a disposition of a Protected Property, and (ii) a disposition shall include any transfer, voluntary or involuntary, in a foreclosure proceeding, pursuant to a deed in lieu of foreclosure, or in a bankruptcy proceeding.

2.2 Exceptions Where No Gain Recognized. Notwithstanding the restrictions set forth in Section 2.1:

(i) The Operating Partnership may dispose of any Protected Property (or an interest therein) if and to the extent that such disposition qualifies as a like-kind exchange under Section 1031 of the Code, an involuntary conversion under Section 1033 of the Code, or other transaction (including, but not limited to, a contribution of property to any entity that qualifies for the non-recognition of gain under Section 721 or Section 351 of the Code, or a merger or consolidation of the Operating Partnership with or into another entity that qualifies for taxation as a “partnership” for U.S. federal income tax purposes (a “Successor Partnership”)) that does not result (in the year of such disposition or in a later year within the Tax Protection Period) in the recognition of any Protected Gain to a Protected Partner. In further clarification thereof, in the case of a Section 1031 like-kind exchange, if such exchange is with a “related person” within the meaning of Section 1031(f)(3) of the Code, any direct or indirect disposition by such related person of the Protected Property or any other transaction prior to the expiration of the two (2) year period following such exchange and within the Tax Protection Period that would cause Section 1031(f)(1) of the Code to apply with respect to such Protected Property (including by reason of the application of Section 1031(f)(4) of the Code) and a result of which a Protected Partner recognizes Protected Gain shall be considered a violation of Section 2.1 by the Operating Partnership.

(ii) The Operating Partnership shall not be obligated to indemnify any Protected Partner pursuant to the terms of this Agreement with respect to, in connection with or arising in any way as a result of (A) the treatment or Tax positions taken by the Initial Protected Partners prior to the date of the Merger, or (B) changes in Tax law, including retroactive Tax law changes, made or enacted after the Effective Date.

2.3 Mergers.

(i) For the avoidance of doubt, any merger or consolidation involving the Operating Partnership or any Subsidiary, whether or not the Operating Partnership or Subsidiary is the surviving entity in such merger or consolidation, that results in a Protected Partner recognizing part or all of the Protected Gain under Section 704(c) of the Code shall be deemed a disposition of the Protected Property subject to Section 2.1.

(ii) Notwithstanding Section 2.3(i), Section 2.1 shall not apply to a voluntary, actual disposition by a Protected Partner of Units in connection with a merger or consolidation of the Operating Partnership pursuant to which (1) the Protected Partner is offered either cash or property treated as cash pursuant to Section 731 of the Code (“Cash Consideration”) or partnership interests (“Partnership Interest Consideration”) and the receipt of such partnership interests would not result in the recognition of gain for U.S. federal income tax purposes by the Protected Partner; (2) the Protected Partner has the right to elect to receive solely Partnership Interest Consideration in exchange for his Units, an election to receive solely Partnership Interest Consideration would not adversely affect the Protected Partner (viewed objectively and relative to an election to receive Cash Consideration) and the continuing partnership has agreed in writing to assume the obligations of the Operating Partnership under this Agreement; (3) no Protected Gain is recognized by the Operating Partnership as a result of any member of the Operating Partnership receiving Cash Consideration; and (4) the Protected Partner elects or is deemed to elect to receive Cash Consideration.

ARTICLE III
ALLOCATION OF LIABILITIES; GUARANTEE OPPORTUNITY
AND DEFICIT RESTORATION OBLIGATIONS

3.1 Maintenance of Indebtedness. During the Tax Protection Period, the Operating Partnership shall use its best efforts to maintain, or cause to be maintained, an amount of indebtedness treated as Nonrecourse Liabilities of the Operating Partnership for purposes of Section 752 (including for this purpose Nonrecourse Liabilities attributed to the Operating Partnership under Treasury Regulations Section 1.752-4(a)) such that each Protected Partner is allocated (and the Operating Partnership shall so allocate to each Protected Partner), pursuant to Treasury Regulations Section 1.752-3, Nonrecourse Liabilities of the Operating Partnership in an amount no less than such Protected Partner’s Minimum Liability Amount (as identified on Schedule 4 attached hereto).

3.2 Non-Recourse Liability Allocations. During the Tax Protection Period, to the extent that any Nonrecourse Liabilities of the Operating Partnership are allocable under Treasury Regulations Section 1.752-3(a)(3), and subject to Section 3.1, the Operating Partnership shall allocate the maximum amount (in the aggregate) of its Nonrecourse Liabilities to the Protected Partners under such Treasury Regulation.

3.3 Guarantees; DROs. During the Tax Protection Period and subject to the provisions of this Section 3.3, a Protected Partner may request: (i) to guarantee indebtedness of the Operating Partnership or any Subsidiary that is classified for U.S. federal income tax purposes as a partnership or an entity disregarded as separate from its owner; or (ii) to enter into a DRO, in each case in such amount or amounts as are requested by the Protected Partner. The Operating Partnership shall negotiate in good faith with any Protected Partner that requests to enter into a guarantee or DRO to consummate such guarantee or DRO in a manner that allows the requesting Protected Partner to be allocated Operating Partnership liabilities under Treasury Regulations Sections 1.752-1 and 1.752-2 as a result of such liabilities being treated as recourse to the relevant Protected Partner; provided that such actions would not adversely affect the Operating Partnership or other Members of the Operating Partnership or result in a breach by the Operating Partnership of any of its other obligations under this Article III; provided, further, that the Operating Partnership will not be required to incur any indebtedness that it would not otherwise have incurred. Notwithstanding the foregoing, in the event a Protected Partner has entered into a DRO, the Operating Partnership will maintain or cause to be maintained an amount of indebtedness of the Operating Partnership that would be considered “recourse” indebtedness of the Operating Partnership at least equal to the sum of the DRO Amounts of all Protected Partners plus the amount of deficit restoration obligations of other Members of the Operating Partnership, if any, that would be treated as DRO Amounts if undertaken by a Protected Partner.

3.4 Change in Law. Notwithstanding the foregoing, if, due to a change in law, a Protected Partner reasonably believes that such Protected Partner may no longer continue to be allocated such Protected Partner’s Guaranteed Amount of a Guaranteed Debt, such Protected Partner may request a modification of such Guarantee Agreement and the Operating Partnership will use its commercially reasonable efforts to work with the lender with respect to such Guaranteed Debt to have the Guarantee Agreement amended in a manner that will permit such Protected Partner to be allocated such Protected Partner’s Guaranteed Amount with respect to the Guaranteed Debt, or, in the event the Operating Partnership has sufficient recourse debt outstanding, such Protected Partner, at its option, shall be offered the opportunity to enter into a DRO in an amount equal to such Guaranteed Amount so that, assuming such DRO is effective under applicable law, the amount of Operating Partnership liabilities allocated to such Protected Partner shall not decrease as a result of the change in law. Furthermore, if, due to a change in law, a Protected Partner reasonably believes such Protected Partner may no longer continue to be allocated Operating Partnership liabilities equal to such Protected Partner’s DRO Amount, such Protected Partner may request a modification of the terms of such DRO and the Operating Partnership will use commercially reasonable efforts to modify such DRO in a manner that will permit such Protected Partner to be allocated Operating Partnership liabilities in an amount equal to such Protected Partner’s DRO Amount.

ARTICLE IV
REMEDIES FOR BREACH

4.1 Monetary Damages. In the event the Operating Partnership or a Subsidiary breaches its obligations set forth in Article II or Article III with respect to a Protected Partner, the Protected Partner’s sole right shall be to receive from the Operating Partnership, and the Operating Partnership shall pay to the Protected Partner as damages an amount equal to:

(i) in the case of a violation of Article II, the aggregate federal, state, and local income taxes (including any applicable federal unearned income Medicare contribution under Section 1411 of the Code) incurred with respect to the Protected Gain incurred with respect to the Protected Property that is allocable to such Protected Partner under the OP Agreement; and

(ii) in the case of a violation of Article III, the aggregate federal, state and local income taxes (including any applicable federal unearned income Medicare contribution under Section 1411 of the Code) incurred by the Protected Partner as a result of the gross income or gain allocated to, or otherwise recognized by, such Protected Partner by reason of such breach;

plus, in either case, an additional amount so that, after the payment by such Protected Partner of all federal, state and local income taxes on amounts received pursuant to this Section 4.1(including any Tax liability incurred as a result of such Protected Partner’s receipt of such indemnity payment), such Protected Partner has received an amount equal to its total federal, state and local income tax liability incurred as a result of such breach.

For purposes of computing the amount of federal, state, and local income taxes required to be paid by a Protected Partner, (i) any deduction for state and local income taxes payable as a result thereof shall be taken into account, and (ii) a Protected Partner’s Tax liability shall be computed using the highest federal, state and local marginal income tax rates that would be applicable to such Protected Partner’s taxable income (taking into account the character of such income or gain) for the year with respect to which the Taxes must be paid, and, except as described in clause (i), without regard to any deductions, losses or credits that may be available to such Protected Partner that would reduce or offset its actual taxable income or actual Tax liability if such deductions, losses or credits could be utilized by the Protected Partner to offset other income, gain or Taxes of the Protected Partner, either in the current year, in earlier years, or in later years.

4.2 Process for Determining Damages. If the Operating Partnership or a Subsidiary has breached or violated any of the covenants set forth in Article II or Article III (or a Protected Partner asserts that the Operating Partnership or a Subsidiary has breached or violated any of the covenants set forth in Article II or Article III), the Operating Partnership and the Protected Partner agree to negotiate in good faith to resolve any disagreements regarding any such breach or violation and the amount of damages, if any, payable to such Protected Partner under Section 4.1. If any such disagreement cannot be resolved by the Operating Partnership and such Protected Partner within (i) 60 days after the receipt of notice from the Operating Partnership of such breach pursuant to Section 4.3, (ii) 60 days after the receipt of a notice from the Protected Partner that the Operating Partnership or a Subsidiary has breached its obligations under this Agreement, which notice shall set forth the amount of income asserted to be recognized by the Protected Partner and the payment required to be made to such Protected Partner under Section 4.1 as a result of the breach, (iii) 10 days following the date that the Operating Partnership notifies the Protected Partner of its intention to settle, compromise and/or concede any Tax Claim or Proceeding pursuant to Section 6.2, or (iv) 10 days following any final determination of any Tax Claim or Proceeding, the Operating Partnership and the Protected Partner shall jointly retain a nationally recognized big four independent public accounting firm (an “Accounting Firm”) to act as an arbitrator to resolve as expeditiously as possible all points of any such disagreement (including, without limitation, whether a breach of any of the covenants set forth in Article II and Article III has occurred and, if so, the amount of damages to which the Protected Partner is entitled as a result thereof, determined as set forth in Section 4.1). All determinations made by the Accounting Firm with respect to the resolution of any breach or violation of any of the covenants set forth in Article II and Article III and the amount of damages payable to the Protected Partner under Section 4.1 shall, subject to any subsequent Tax Claim or Proceeding, and subject to the last sentence of this Section 4.2, be final, conclusive and binding on the Operating Partnership and the Protected Partner. The fees and expenses of any Accounting Firm incurred in connection with any such determination shall be shared equally by the Operating Partnership and the Protected Partner, provided that if the amount determined by the Accounting Firm to be owed by the Operating Partnership to the Protected Partner is more than 5% higher than the amount proposed by the Operating Partnership to be owed to such Protected Partner prior to the submission of the matter to the Accounting Firm, then all of the fees and expenses of any Accounting Firm incurred in connection with any such determination shall be paid by the Operating Partnership, and if the amount determined by the Accounting Firm to be owed by the Operating Partnership to the Protected Partner is less than 95% of the amount proposed by the Protected Partner to be owed to the Protected Partner prior to the submission of the matter to the Accounting Firm then all fees and expenses of any Accounting Firm incurred in connection with any such determination shall be paid by the Protected Partner. In the case of any Tax Claim or Proceeding that is resolved pursuant to a final determination or that is settled, compromised and/or conceded pursuant to Section 6.2, the amount of Taxes due to the Internal Revenue Service or other taxing authority shall, to the extent that such Taxes relate to matters covered in this Agreement, be presumed to be damages resulting from a breach of this Agreement, and the amount of any such damages shall be increased by any interest and penalties required to be paid by the Protected Partner with respect to such Taxes (other than interest and penalties resulting from a failure of the Protected Partner to timely and properly file any Tax return or to timely pay any Tax, unless such failure resulted solely from the Protected Partner reporting and paying its Taxes in a manner consistent with the Operating Partnership) so that the amount of the damages under Section 4.1 shall not be less than the amount required to be paid to the Internal Revenue Service or other taxing authority that pertains to matters covered in this Agreement.

4.3 Required Notices; Time for Payment. In the event that there has been a breach of Article II or Article III, the Operating Partnership shall provide to each affected Protected Partner notice of the transaction or event giving rise to such breach, along with a calculation of the amount of income to be recognized by any Protected Partner and the amount required to be paid to such Protected Partner under Section 4.1 by reason thereof, not later than 30 days following the date that the Operating Partnership becomes aware that such transaction or event constitutes a breach of this Agreement. All payments required to be made under Section 4.1 to any Protected Partner shall be made to such Protected Partner at least two Business Days before April 15 of the year following the year in which the transaction or event giving rise to such payment took place; provided that if the Protected Partner is required to make estimated Tax payments that are required to be calculated by reference to any income resulting from such transaction or event, the Operating Partnership shall make a payment to the Protected Partner at least two Business Days before the due date for such estimated Tax payment, and such payment from the Operating Partnership shall be in an amount that corresponds to the amount of the estimated Tax required to be paid by such Protected Partner with respect to such income at such time; provided further that any payment required to be made under Section 4.1 to any Protected Partner resulting from a Tax Claim or Proceeding shall be made at least two Business Days before the date that the relevant Taxes are required to be paid as a result of any final determination of such Tax Claim or Proceeding or any settlement, compromise and/or concession of such Tax Claim or Proceeding pursuant to Section 6.2. In the event of a payment made after the date required pursuant to this Section 4.3, interest shall accrue on the aggregate amount required to be paid from such date to the date of actual payment at a rate equal to the “prime rate” of interest, as published in The Wall Street Journal (or if no longer published there, as announced by Citibank) effective as of the date the payment is required to be made plus 10%, but not to exceed the maximum amount permitted by law.

4.4 Offsetting Tax Benefits; Refunds.

(i) If the Protected Partner is entitled to, or has received, a payment under Section 4.1, the Operating Partnership shall be entitled to reduce such payment by or, if previously paid, the Protected Partner shall pay to the Operating Partnership an amount equal to, the excess of any Taxes actually saved by the Protected Partner as a result of such payment (for example, due to the allocation by the Operating Partnership of a corresponding deduction for the payment to the Protected Partner).

(ii) The Protected Partner shall pay to the Operating Partnership any Tax refunds with respect to which the Operating Partnership has paid an amount hereunder.

(iii) Notwithstanding clauses (i) and (ii), the amount payable by the Protected Partner under this Section 4.4 shall not exceed the sum of the amounts previously paid by the Operating Partnership to the Protected Partner hereunder. In addition, any subsequent disallowance of Tax savings or refunds paid over by the Protected Partner hereunder shall be treated as a Tax for which the Operating Partnership is obligated to indemnify the Protected Partner pursuant hereto.

ARTICLE V
SECTION 704(C) METHOD AND ALLOCATIONS

5.1 Application of “Traditional Method with Curative Allocations.” Notwithstanding any provision of the OP Agreement to the contrary, the Operating Partnership shall use the “traditional method with curative allocations” under Treasury Regulations Section 1.704-3(c) for purposes of making all allocations under Section 704(c) of the Code with respect to the Protected Properties.

ARTICLE VI
TAX PROCEEDINGS

6.1 Notice of Tax Audits. If any claim, demand, assessment (including a notice of proposed assessment) or other assertion is made with respect to Taxes against any Protected Partner or the Operating Partnership the calculation of which involves a matter covered in this Agreement or the income tax treatment of the Merger (a “Tax Claim”), or if the Operating Partnership receives any notice from any jurisdiction with respect to any current or future audit, examination, investigation or other proceeding involving the Protected Partners or the Operating Partnership or that otherwise could involve a matter covered in this Agreement and could directly or indirectly affect (adversely or otherwise) the Protected Partners (a “Proceeding”), then (i) in the case of a notification of a Tax Claim or Proceeding received by the Operating Partnership, the Operating Partnership shall promptly notify the Protected Partners of such Tax Claim or Proceeding, but in no event later than 20 Business Days after receipt of such notice, and (ii) in the case of a notification of a Tax Claim or Proceeding received by any Protected Partner, or any notice of any current or future audit, examination, investigation or other proceeding received by a Protected Partner that involves or could involve a matter covered in this Agreement or the income tax treatment of the Merger, the Protected Partner shall promptly notify the Operating Partnership of such Tax Claim, Proceeding, or other notice, but in no event later than 20 Business Days after receipt of such notice.

6.2 Control of Tax Proceedings. The Operating Partnership shall have the right to control the defense, settlement or compromise of any Proceeding or Tax Claim; provided, however, that the Operating Partnership shall keep the Protected Partners duly informed of the progress thereof to the extent that such Proceeding or Tax Claim could directly or indirectly affect (adversely or otherwise) the Protected Partners; the Protected Partners shall have the right to participate in the portion of any such Proceeding or Tax Claim related to them at their own expense; and the Operating Partnership shall not settle, compromise and/or concede such portion of such Proceeding or Tax Claim without the prior written consent of the Protected Partners, which written consent shall not be unreasonably withheld, delayed or conditioned.

ARTICLE VII
AMENDMENT OF THIS AGREEMENT; WAIVER OF CERTAIN PROVISIONS

7.1 Amendment. This Agreement may not be amended, directly or indirectly (including by reason of a merger between the Operating Partnership and another entity), except by a written instrument signed by the Operating Partnership and the Protected Partners holding a majority of the Units held by all Protected Partners.

7.2 Waiver. Notwithstanding the foregoing, upon written request by the Operating Partnership, each Protected Partner, in its sole discretion, may waive the payment of any damages that is otherwise payable to such Protected Partner pursuant to Article IV hereof. Such a waiver shall be effective only if obtained in writing from the affected Protected Partner.

ARTICLE VIII
MISCELLANEOUS

8.1 Additional Actions and Documents. Each of the parties hereto hereby agrees to take or cause to be taken such further actions, to execute, deliver, and file or cause to be executed, delivered and filed such further documents, and will obtain such consents, as may be necessary or as may be reasonably requested in order to fully effectuate the purposes, terms and conditions of this Agreement.

8.2 Assignment. No party hereto shall assign its or his rights or obligations under this Agreement, in whole or in part, except by operation of law, without the prior written consent of the other parties hereto, and any such assignment contrary to the terms hereof shall be null and void and of no force and effect. Notwithstanding the foregoing: (i) the Operating Partnership may assign its rights and obligations under this Agreement to a direct or indirect successor (including a Successor Partnership), whether by merger, transfer, spin-off or otherwise, to all or substantially all of the assets of the Operating Partnership; and (ii) in the event a Protected Partner transfers its Units in a transaction described in clause (ii) of the definition of “Protected Partner,” such transferee of such Units shall become a Protected Partner for purposes of this Agreement.

8.3 Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the Protected Partners and their respective successors and permitted assigns, whether so expressed or not. This Agreement shall be binding upon the Operating Partnership, and any entity that is a direct or indirect successor (including a Successor Partnership), whether by merger, transfer, spin-off or otherwise, to all or substantially all of the assets of the Operating Partnership (or any prior successor thereto as set forth in the preceding portion of this sentence), provided that none of the foregoing shall result in the release of liability of the Company and the Operating Partnership hereunder.

8.4 Captions. The Article and Section headings contained in this Agreement are inserted for convenience of reference only, shall not be deemed to be a part of this Agreement for any purpose, and shall not in any way define or affect the meaning, construction or scope of any of the provisions hereof.

8.5 Notices. All notices and other communications given or made pursuant hereto shall be in writing and shall be deemed to have been duly given or made as of the date delivered, mailed or transmitted, and shall be effective upon receipt, if delivered personally, mailed by registered or certified mail (postage prepaid, return receipt requested) to the parties at the following addresses (or at such other address for a party as shall be specified by like changes of address) or sent by electronic transmission to the email address or telecopier number specified below:

	(i)	if to the Company or the Operating Partnership, to:

		c/o Broad Street Realty, LLC 7250 Woodmont Avenue, Suite 350 Bethesda, MD 20814 Attention: Michael Z. Jacoby Facsimile: (301) 828-1201 Email: mjacoby@broadstreetllc.net

		with a copy to:

		Morrison & Foerster LLP 2000 Pennsylvania Avenue NW, Suite 6000 Washington, DC 20006-1888 Attention: David P. Slotkin, Lauren C. Bellerjeau and Andrew P. Campbell Facsimile: (202) 887-0763 Email: dslotkin@mofo.com, lbellerjeau@mofo.com and andycampbell@mofo.com

	(ii)	if to a Protected Partner, to the address on file with the Operating Partnership.

Each party may designate by notice in writing a new address to which any notice, demand, request or communication may thereafter be so given, served or sent. Each notice, demand, request, or communication which shall be hand delivered, sent, mailed, emailed or faxed in the manner described above, shall be deemed sufficiently given, served, sent, received or delivered for all purposes at such time as it is delivered to the addressee (with the return receipt, the delivery receipt, or (with respect to a facsimile) the answerback being deemed conclusive, but not exclusive, evidence of such delivery) or at such time as delivery is refused by the addressee upon presentation.

8.6 Counterparts. This Agreement may be executed in two or more counterparts, all of which shall be considered one and the same agreement and each of which shall be deemed an original.

8.7 Governing Law. The interpretation and construction of this Agreement, and all matters relating thereto, shall be governed by the laws of the State of Delaware, without regard to the choice of law provisions thereof.

8.8 Consent to Jurisdiction; Enforceability.

(i) This Agreement and the duties and obligations of the parties hereunder shall be enforceable against any of the parties in the courts of the State of Delaware. For such purpose, each party hereto hereby irrevocably submits to the nonexclusive jurisdiction of such courts and agrees that all claims in respect of this Agreement may be heard and determined in any of such courts.

(ii) Each party hereto hereby irrevocably agrees that a final judgment of any of the courts specified above in any action or proceeding relating to this Agreement shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.

8.9 Severability. If any part of any provision of this Agreement shall be invalid or unenforceable in any respect, such part shall be ineffective to the extent of such invalidity or unenforceability only, without in any way affecting the remaining parts of such provision or the remaining provisions of this Agreement.

8.10 Costs of Disputes. Except as otherwise expressly set forth in this Agreement, the nonprevailing party in any dispute arising hereunder shall bear and pay the costs and expenses (including, without limitation, reasonable attorneys’ fees and expenses) incurred by the prevailing party or parties in connection with resolving such dispute.

8.11 Confidential Information. Each Party agrees that the Tax returns and all related information of the other is highly confidential and shall not be disclosed to any person (including the other) for any reason except as contemplated by the Merger Agreement, the OP Agreement, or as otherwise required by law; provided that the Protected Partner shall disclose to the Operating Partnership under a confidentiality agreement reasonably acceptable to the Protected Partner such Tax returns and related information to allow the Operating Partnership to assess and comply with its obligations hereunder and participate in the contest of any Tax Claim or Proceeding.

[SIGNATURE PAGES FOLLOW]

IN WITNESS WHEREOF, the Company, the Operating Partnership and each Protected Partner have caused this Agreement to be signed by their respective duly authorized officers or representatives, all as of the date first written above.

	BROAD STREET REALTY, INC.


	By:	/s/ Michael Z. Jacoby
	Name:	Michael Z. Jacoby
	Title:	Chief Executive Officer


	BROAD STREET OPERATING PARTNERSHIP, LP

	By: BROAD STREET OP GP LLC, its general partner

	By: BROAD STREET REALTY, INC., its sole member



	By:	/s/ Michael Z. Jacoby
	Name:	Michael Z. Jacoby
	Title:	Chief Executive Officer


	ALEXANDER TOPCHY

	By:	/s/ Alexander Topchy
	Name:	Alexander Topchy


	ARAS HOLDEN

	By:	/s/ Aras Holden
	Name:	Aras Holden

	LAMONT STREET PARTNERS LLC

	By:	/s/ Shane Sonneveldt
	Name:	Shane Sonneveldt
	Title:	Manager

	MICHAEL Z. JACOBY

	By:	/s/ Michael Z. Jacoby
	Name:	Michael Z. Jacoby

	THOMAS YOCKEY

	By:	/s/ Thomas Yockey
	Name:	Thomas Yockey

Exhibit 10.5

TAX PROTECTION AGREEMENT

WHEREAS, the Initial Protected Partners together own 100% of the membership interests in BSV Lamonticello Investors LLC, a Delaware limited liability company (the “Property LLC”),

WHEREAS, the Property LLC directly or indirectly holds a fee simple interest in the property known as “Midtown Lamonticello” located at 220 Monticello Avenue, Williamsburg, Virginia (the “Underlying Property”);

WHEREAS, pursuant to that certain Agreement and Plan of Merger, dated as of May 28, 2019, by and among the Company, the Operating Partnership, BSV Lamonticello Merger Sub LLC and the Property LLC (the “Merger Agreement”), the Property LLC will be merged with and into BSV Lamonticello Merger Sub LLC, with the Property LLC being the surviving entity (the “Merger”), and all of the outstanding membership interests in the Property LLC will be converted into the right to receive units of limited partnership interest in the Operating Partnership (the “OP Units”); and

ARTICLE I
DEFINITIONS

To the extent not otherwise defined herein, capitalized terms used in this Agreement shall have the meanings ascribed to them in the Merger Agreement.

“Accounting Firm” has the meaning set forth in Section 4.2.

“Affiliate” of a person means any other person Controlling, Controlled by, or under common Control with such person.

“Agreement” has the meaning set forth in the recitals.

“Business Day” means any day except a Saturday, a Sunday, or other day on which commercial banks in the City of New York are authorized or obligated by law to close.

“Cash Consideration” has the meaning set forth in Section 2.3(ii).

“Code” means the Internal Revenue Code of 1986, as amended.

“Effective Date” has the meaning set forth in the recitals.

“Initial Protected Partners” has the meaning set forth in the recitals.

“OP Agreement” means the Agreement of Limited Partnership of the Operating Partnership, dated as of May 21, 2019.

“OP Units” has the meaning set forth in the recitals.

“Operating Partnership” has the meaning set forth in the recitals.

“Merger” has the meaning set forth in the recitals.

“Minimum Liability Amount” means, for each Protected Partner, the amount set forth on Schedule 4 hereto next to such Protected Partner’s name, as amended from time to time.

“Nonrecourse Liability” means a liability described in Section 465(b)(6)(A) and Treasury Regulations Section 1.752-1(a)(2).

“Partner Guarantor” means a Protected Partner who has guaranteed any portion of a Guaranteed Debt.

“Partnership Interest Consideration” has the meaning set forth in Section 2.3(ii).

“Proceeding” has the meaning set forth in Section 6.1.

“Property LLC” has the meaning set forth in the recitals.

“Start Date” means the Effective Date.

“Subsidiary” means any entity in which the Operating Partnership owns a direct or indirect interest.

“Successor Partnership” has the meaning set forth in Section 2.2(i).

“Tax” has the meaning set forth in the recitals.

“Tax Claim” has the meaning set forth in Section 6.1.

“Underlying Property” has the meaning set forth in the recitals.

ARTICLE II
RESTRICTIONS ON DISPOSITIONS OF
PROTECTED PROPERTIES

2.2 Exceptions Where No Gain Recognized. Notwithstanding the restrictions set forth in Section 2.1:

2.3 Mergers.

ARTICLE III
ALLOCATION OF LIABILITIES; GUARANTEE OPPORTUNITY
AND DEFICIT RESTORATION OBLIGATIONS

3.3 Guarantees; DROs. During the Tax Protection Period and subject to the provisions of this Section 3.3, a Protected Partner may request: (i) to guarantee indebtedness of the Operating Partnership or any Subsidiary that is classified for U.S. federal income tax purposes as a partnership or an entity disregarded as separate from its owner; or (ii) to enter into a DRO, in each case in such amount or amounts as are requested by the Protected Partner. The Operating Partnership shall negotiate in good faith with any Protected Partner that requests to enter into a guarantee or DRO to consummate such guarantee or DRO in a manner that allows the requesting Protected Partner to be allocated Operating Partnership liabilities under Treasury Regulations Sections 1.752-1 and 1.752-2 as a result of such liabilities being treated as recourse to the relevant Protected Partner; provided that such actions would not adversely affect the Operating Partnership or other Members of the Operating Partnership or result in a breach by the Operating Partnership of any of its other obligations under this Article III; provided, further, that the Operating Partnership will not be required to incur any indebtedness that it would not otherwise have incurred. Notwithstanding the foregoing, in the event a Protected Partner has entered into a DRO, the Operating Partnership will maintain or cause to be maintained an amount of indebtedness of the Operating Partnership that would be considered “recourse” indebtedness of the Operating Partnership at least equal to the sum of the DRO Amounts of all Protected Partners plus the amount of deficit restoration obligations of other Members of the Operating Partnership, if any, that would be treated as DRO Amounts if undertaken by a Protected Partner.

ARTICLE IV
REMEDIES FOR BREACH

4.4 Offsetting Tax Benefits; Refunds.

(ii) The Protected Partner shall pay to the Operating Partnership any Tax refunds with respect to which the Operating Partnership has paid an amount hereunder.

ARTICLE V
SECTION 704(C) METHOD AND ALLOCATIONS

ARTICLE VI
TAX PROCEEDINGS

ARTICLE VII
AMENDMENT OF THIS AGREEMENT; WAIVER OF CERTAIN PROVISIONS

ARTICLE VIII
MISCELLANEOUS

8.5 Notices. All notices and other communications given or made pursuant hereto shall be in writing and shall be deemed to have been duly given or made as of the date delivered, mailed or transmitted, and shall be effective upon receipt, if delivered personally, mailed by registered or certified mail (postage prepaid, return receipt requested) to the parties at the following addresses (or at such other address for a party as shall be specified by like changes of address) or sent by electronic transmission to the email address or telecopier number specified below:

	(i)	if to the Company or the Operating Partnership, to:

		c/o Broad Street Realty, LLC 7250 Woodmont Avenue, Suite 350 Bethesda, MD 20814 Attention: Michael Z. Jacoby Facsimile: (301) 828-1201 Email: mjacoby@broadstreetllc.net

		with a copy to:

		Morrison & Foerster LLP 2000 Pennsylvania Avenue NW, Suite 6000 Washington, DC 20006-1888 Attention: David P. Slotkin, Lauren C. Bellerjeau and Andrew P. Campbell Facsimile: (202) 887-0763 Email: dslotkin@mofo.com, lbellerjeau@mofo.com and andycampbell@mofo.com

	(ii)	if to a Protected Partner, to the address on file with the Operating Partnership.

8.6 Counterparts. This Agreement may be executed in two or more counterparts, all of which shall be considered one and the same agreement and each of which shall be deemed an original.

8.8 Consent to Jurisdiction; Enforceability.

[SIGNATURE PAGES FOLLOW]

	BROAD STREET REALTY, INC.


	By:	/s/ Michael Z. Jacoby
	Name:	Michael Z. Jacoby
	Title:	Chief Executive Officer


	BROAD STREET OPERATING PARTNERSHIP, LP

	By: BROAD STREET OP GP LLC, its general partner

	By: BROAD STREET REALTY, INC., its sole member



	By:	/s/ Michael Z. Jacoby
	Name:	Michael Z. Jacoby
	Title:	Chief Executive Officer


	ALEXANDER TOPCHY

	By:	/s/ Alexander Topchy
	Name:	Alexander Topchy

	ARAS HOLDEN

	By:	/s/ Aras Holden
	Name:	Aras Holden

	MICHAEL Z. JACOBY

	By:	/s/ Michael Z. Jacoby
	Name:	Michael Z. Jacoby

	THOMAS YOCKEY

	By:	/s/ Thomas Yockey
	Name:	Thomas Yockey

Exhibit 10.6

TAX PROTECTION AGREEMENT

WHEREAS, the Initial Protected Partners together own 100% of the membership interests in BSV Patrick Street Member, a Maryland limited liability company (the “Property LLC”),

WHEREAS, the Property LLC directly or indirectly holds a fee simple interest in the property known as “Vista Shops at Golden Mile” located at 1080 West Patrick Street, Frederick, Maryland (the “Underlying Property”);

WHEREAS, pursuant to that certain Agreement and Plan of Merger, dated as of May 28, 2019, by and among the Company, the Operating Partnership, BSV Patrick Street Merger Sub LLC and the Property LLC (as amended, the “Merger Agreement”), the Property LLC will be merged with and into BSV Patrick Street Merger Sub LLC, with the Property LLC being the surviving entity (the “Merger”), and all of the outstanding membership interests in the Property LLC will be converted into the right to receive units of limited partnership interest in the Operating Partnership (the “OP Units”); and

ARTICLE I
DEFINITIONS

To the extent not otherwise defined herein, capitalized terms used in this Agreement shall have the meanings ascribed to them in the Merger Agreement.

“Accounting Firm” has the meaning set forth in Section 4.2.

“Affiliate” of a person means any other person Controlling, Controlled by, or under common Control with such person.

“Agreement” has the meaning set forth in the recitals.

“Business Day” means any day except a Saturday, a Sunday, or other day on which commercial banks in the City of New York are authorized or obligated by law to close.

“Cash Consideration” has the meaning set forth in Section 2.3(ii).

“Code” means the Internal Revenue Code of 1986, as amended.

“Effective Date” has the meaning set forth in the recitals.

“Initial Protected Partners” has the meaning set forth in the recitals.

“OP Agreement” means the Agreement of Limited Partnership of the Operating Partnership, dated as of May 21, 2019.

“OP Units” has the meaning set forth in the recitals.

“Operating Partnership” has the meaning set forth in the recitals.

“Merger” has the meaning set forth in the recitals.

“Minimum Liability Amount” means, for each Protected Partner, the amount set forth on Schedule 4 hereto next to such Protected Partner’s name, as amended from time to time.

“Nonrecourse Liability” means a liability described in Section 465(b)(6)(A) and Treasury Regulations Section 1.752-1(a)(2).

“Partner Guarantor” means a Protected Partner who has guaranteed any portion of a Guaranteed Debt.

“Partnership Interest Consideration” has the meaning set forth in Section 2.3(ii).

“Proceeding” has the meaning set forth in Section 6.1.

“Property LLC” has the meaning set forth in the recitals.

“Start Date” means the Effective Date.

“Subsidiary” means any entity in which the Operating Partnership owns a direct or indirect interest.

“Successor Partnership” has the meaning set forth in Section 2.2(i).

“Tax” has the meaning set forth in the recitals.

“Tax Claim” has the meaning set forth in Section 6.1.

“Underlying Property” has the meaning set forth in the recitals.

ARTICLE II
RESTRICTIONS ON DISPOSITIONS OF
PROTECTED PROPERTIES

2.2 Exceptions Where No Gain Recognized. Notwithstanding the restrictions set forth in Section 2.1:

2.3 Mergers.

ARTICLE III
ALLOCATION OF LIABILITIES; GUARANTEE OPPORTUNITY
AND DEFICIT RESTORATION OBLIGATIONS

3.4 Change in Law. Notwithstanding the foregoing, if, due to a change in law, a Protected Partner reasonably believes that such Protected Partner may no longer continue to be allocated such Protected Partner’s Guaranteed Amount of a Guaranteed Debt, such Protected Partner may request a modification of such Guarantee Agreement and the Operating Partnership will use its commercially reasonable efforts to work with the lender with respect to such Guaranteed Debt to have the Guarantee Agreement amended in a manner that will permit such Protected Partner to be allocated such Protected Partner’s Guaranteed Amount with respect to the Guaranteed Debt, or, in the event the Operating Partnership has sufficient recourse debt outstanding, such Protected Partner, at its option, shall be offered the opportunity to enter into a DRO in an amount equal to such Guaranteed Amount so that, assuming such DRO is effective under applicable law, the amount of Operating Partnership liabilities allocated to such Protected Partner shall not decrease as a result of the change in law. Furthermore, if, due to a change in law, a Protected Partner reasonably believes such Protected Partner may no longer continue to be allocated Operating Partnership liabilities equal to such Protected Partner’s DRO Amount, such Protected Partner may request a modification of the terms of such DRO and the Operating Partnership will use commercially reasonable efforts to modify such DRO in a manner that will permit such Protected Partner to be allocated Operating Partnership liabilities in an amount equal to such Protected Partner’s DRO Amount.

ARTICLE IV
REMEDIES FOR BREACH

4.3 Required Notices; Time for Payment. In the event that there has been a breach of Article II or Article III, the Operating Partnership shall provide to each affected Protected Partner notice of the transaction or event giving rise to such breach, along with a calculation of the amount of income to be recognized by any Protected Partner and the amount required to be paid to such Protected Partner under Section 4.1 by reason thereof, not later than 30 days following the date that the Operating Partnership becomes aware that such transaction or event constitutes a breach of this Agreement. All payments required to be made under Section 4.1 to any Protected Partner shall be made to such Protected Partner at least two Business Days before April 15 of the year following the year in which the transaction or event giving rise to such payment took place; provided that if the Protected Partner is required to make estimated Tax payments that are required to be calculated by reference to any income resulting from such transaction or event, the Operating Partnership shall make a payment to the Protected Partner at least two Business Days before the due date for such estimated Tax payment, and such payment from the Operating Partnership shall be in an amount that corresponds to the amount of the estimated Tax required to be paid by such Protected Partner with respect to such income at such time; provided further that any payment required to be made under Section 4.1 to any Protected Partner resulting from a Tax Claim or Proceeding shall be made at least two Business Days before the date that the relevant Taxes are required to be paid as a result of any final determination of such Tax Claim or Proceeding or any settlement, compromise and/or concession of such Tax Claim or Proceeding pursuant to Section 6.2. In the event of a payment made after the date required pursuant to this Section 4.3, interest shall accrue on the aggregate amount required to be paid from such date to the date of actual payment at a rate equal to the “prime rate” of interest, as published in The Wall Street Journal (or if no longer published there, as announced by Citibank) effective as of the date the payment is required to be made plus 10%, but not to exceed the maximum amount permitted by law.

4.4 Offsetting Tax Benefits; Refunds.

(ii) The Protected Partner shall pay to the Operating Partnership any Tax refunds with respect to which the Operating Partnership has paid an amount hereunder.

ARTICLE V
SECTION 704(C) METHOD AND ALLOCATIONS

ARTICLE VI
TAX PROCEEDINGS

6.2 Control of Tax Proceedings. The Operating Partnership shall have the right to control the defense, settlement or compromise of any Proceeding or Tax Claim; provided, however, that the Operating Partnership shall keep the Protected Partners duly informed of the progress thereof to the extent that such Proceeding or Tax Claim could directly or indirectly affect (adversely or otherwise) the Protected Partners; the Protected Partners shall have the right to participate in the portion of any such Proceeding or Tax Claim related to them at their own expense; and the Operating Partnership shall not settle, compromise and/or concede such portion of such Proceeding or Tax Claim without the prior written consent of the Protected Partners, which written consent shall not be unreasonably withheld, delayed or conditioned.

ARTICLE VII
AMENDMENT OF THIS AGREEMENT; WAIVER OF CERTAIN PROVISIONS

ARTICLE VIII
MISCELLANEOUS

8.3 Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the Protected Partners and their respective successors and permitted assigns, whether so expressed or not. This Agreement shall be binding upon the Operating Partnership, and any entity that is a direct or indirect successor (including a Successor Partnership), whether by merger, transfer, spin-off or otherwise, to all or substantially all of the assets of the Operating Partnership (or any prior successor thereto as set forth in the preceding portion of this sentence), provided that none of the foregoing shall result in the release of liability of MedAmerica and the Operating Partnership hereunder.

8.4 Captions. The Article and Section headings contained in this Agreement are inserted for convenience of reference only, shall not be deemed to be a part of this Agreement for any purpose, and shall not in any way define or affect the meaning, construction or scope of any of the provisions hereof.

	(i)	if to the Company or the Operating Partnership, to:

		c/o Broad Street Realty, LLC 7250 Woodmont Avenue, Suite 350 Bethesda, MD 20814 Attention: Michael Z. Jacoby Facsimile: (301) 828-1201 Email: mjacoby@broadstreetllc.net

		with a copy to:

		Morrison & Foerster LLP 2000 Pennsylvania Avenue NW, Suite 6000 Washington, DC 20006-1888 Attention: David P. Slotkin, Lauren C. Bellerjeau and Andrew P. Campbell Facsimile: (202) 887-0763 Email: dslotkin@mofo.com, lbellerjeau@mofo.com and andycampbell@mofo.com

	(ii)	if to a Protected Partner, to the address on file with the Operating Partnership.

8.6 Counterparts. This Agreement may be executed in two or more counterparts, all of which shall be considered one and the same agreement and each of which shall be deemed an original.

8.7 Governing Law. The interpretation and construction of this Agreement, and all matters relating thereto, shall be governed by the laws of the State of Delaware, without regard to the choice of law provisions thereof.

8.8 Consent to Jurisdiction; Enforceability.

[SIGNATURE PAGES FOLLOW]

	BROAD STREET REALTY, INC.


	By:	/s/ Michael Z. Jacoby
	Name:	Michael Z. Jacoby
	Title:	Chief Executive Officer


	BROAD STREET OPERATING PARTNERSHIP, LP

	By: BROAD STREET OP GP LLC, its general partner

	By: BROAD STREET REALTY, INC., its sole member



	By:	/s/ Michael Z. Jacoby
	Name:	Michael Z. Jacoby
	Title:	Chief Executive Officer

	ALEXANDER TOPCHY

	By:	/s/ Alexander Topchy
	Name:	Alexander Topchy

	ALEXANDER & TRACI TOPCHY, JTWROS

	By:	/s/ Alexander Topchy
	Name:	Alexander Topchy

	By:	/s/ Traci Topchy
	Name:	Traci Topchy

	AVANTI INVESTORS LLC

	By:	/s/ Brent Goldstein
	Name:	Brent Goldstein
	Title:	Manager

	BROOKS FAMILY REVOCABLE LIVING TRUST

	By:	/s/ Robert Brooks
	Name:	Robert Brooks
	Title:	Member

	CAROL W. KOENING LIVING TRUST

	By:	/s/ Carol Koening
	Name:	Carol Koening

	DAHAN FASSETT, LLC

	By:	/s/ Charles Dahan
	Name:	Charles Dahan
	Title:	President

	DAVID LANDY

	By:	/s/ David Landy
	Name:	David Landy

	EDWARD HERMES

	By:	/s/ Edward Hermes
	Name:	Edward Hermes

	FLOYD WILLIS III & CAROLYN G. WILLIS, JT

	By:	/s/ Floyd Willis III
	Name:	Floyd Willis III

	By:	/s/ Carolyn G. Willis
	Name:	Carolyn G. Willis

	GARY YOUNG

	By:	/s/ Gary Young
	Name:	Gary Young

	HOWARD LEHRER FAMILY TRUST

	By:	/s/ Howard Lehrer
	Name:	Howard Lehrer
	Title:	Trustee

	JEFF KELLY

	By:	/s/ Jeff Kelly
	Name:	Jeff Kelly

	JEFFREY VOLLWEILER

	By:	/s/ Jeffrey Vollweiler
	Name:	Jeffrey Vollweiler

	KILBURG PROPERTIES, LLC

	By:	/s/ Karl Kilburg
	Name:	Karl Kilburg
	Title:	Director

	LEVY ASSOCIATES IV

	By:	/s/ Mark Levy
	Name:	Mark Levy
	Title:	Partner

	LISA RUF

	By:	/s/ Lisa Ruf
	Name:	Lisa Ruf

	MICHAEL Z. JACOBY

	By:	/s/ Michael Z. Jacoby
	Name:	Michael Z. Jacoby

	PAUL E. JOHNSON REVOCABLE TRUST

	By:	/s/ Paul Johnson
	Name:	Paul Johnson
	Title:	Mr

	RAYMOND E. RUF & CAROLYN DALE RUF JOINT REVOCABLE TRUST

	By:	/s/ Carolyn Dale Ruf
	Name:	Carolyn Dale Ruf
	Title:	Trustee

	STEPHEN BARRY MILLER FAMILY TRUST

	By:	/s/ Stephen Miller
	Name:	Stephen Miller
	Title:	Mr

	STEVEN SILVER & WENDY SILVER, JT

	By:	/s/ Steven Silver
	Name:	Steven Silver

	By:	/s/ Wendy Silver
	Name:	Wendy Silver

	THOMAS YOCKEY

	By:	/s/ Thomas Yockey
	Name:	Thomas Yockey

	TYLER BLUE

	By:	/s/ Tyler Blue
	Name:	Tyler Blue

Exhibit 10.7

SECOND AMENDMENT TO

AGREEMENT AND PLAN OF MERGER

This Second Amendment (this “Amendment”) to the Agreement and Plan of Merger, dated as of May 28, 2019, as amended on November 27, 2019 (as amended, the “Merger Agreement”), by and among BSV Cromwell Parent LLC, a Maryland limited liability company (the “Company”), Broad Street Operating Partnership, LP, a Delaware limited partnership (the “Operating Partnership”), Broad Street Realty, Inc., a Delaware corporation (formerly known as MedAmerica Properties Inc.) (“Broad Street”), and BSV Cromwell Merger Sub LLC, a Maryland limited liability company (“Merger Sub”), is made and entered into effective as of December 27, 2019, by and among the Company, the Operating Partnership, Broad Street and Merger Sub (collectively, the “Parties”).

RECITALS:

WHEREAS, the Parties entered into the Merger Agreement on May 28, 2019 (as amended by the First Amendment to the Agreement and Plan of Merger, dated as of November 27, 2019);

WHEREAS, the Parties desire to amend the Merger Agreement as set forth herein; and

WHEREAS, capitalized terms used in this Amendment and not defined herein shall have the meanings ascribed to such terms in the Merger Agreement.

NOW, THEREFORE, in consideration of the foregoing premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged and agreed, and intending to be legally bound, the Parties agree as follows:

Amendment to Exhibit A. The following defined term set forth in Section (nn) of Exhibit A to the Merger Agreement is hereby deleted in its entirety and replaced in its entirety with the following:

“Outside Date” means March 31, 2020.

Miscellaneous.

All references to the “Agreement” set forth in the Merger Agreement shall be deemed to be references to the Merger Agreement, as amended by this Amendment.

Except as amended by this Amendment, all the terms and provisions of the Merger Agreement shall remain unchanged and shall continue in full force and effect in accordance with the terms of the Merger Agreement.

This Amendment may be executed in counterparts, all of which shall be considered one and the same agreement and shall become effective when counterparts have been signed by each of the Parties and delivered to each other Party (including by means of electronic delivery), it being understood that the Parties need not sign the same counterpart. Signatures to this Amendment transmitted by facsimile transmission, by electronic mail in “portable document format” (“.pdf”), or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, will have the same effect as physical delivery of the paper document bearing the original signature.

[SIGNATURE PAGES FOLLOW]

In witness whereof, the undersigned Parties have caused this Amendment to be executed and delivered by their respective duly authorized officers as of the date first written above.

	BSV CROMWELL PARENT LLC By: BROAD STREET VENTURES, LLC, its manager By: /s/ Michael Z. Jacoby Name: Michael Z. Jacoby Title: Chief Executive Officer
	BROAD STREET REALTY, INC. By: /s/ Michael Z. Jacoby Name: Michael Z. Jacoby Title: Chief Executive Officer
	BROAD STREET OPERATING PARTNERSHIP, LP By: BROAD STREET OP GP, LLC, its general partner By: BROAD STREET REALTY, INC., its sole member By: /s/ Michael Z. Jacoby Name: Michael Z. Jacoby Title: Chief Executive Officer
	BSV CROMWELL MERGER SUB LLC By: BROAD STREET REALTY, INC., its sole member By: /s/ Michael Z. Jacoby Name: Michael Z. Jacoby Title: Chief Executive Officer

Exhibit 10.8

SECOND AMENDMENT TO

AGREEMENT AND PLAN OF MERGER

This Second Amendment (this “Amendment”) to the Agreement and Plan of Merger, dated as of May 28, 2019, as amended on November 27, 2019 (as amended, the “Merger Agreement”), by and among BSV Cypress Point Investors LLC, a Maryland limited liability company (the “Company”), Broad Street Operating Partnership, LP, a Delaware limited partnership (the “Operating Partnership”), Broad Street Realty, Inc., a Delaware corporation (formerly known as MedAmerica Properties Inc.) (“Broad Street”), and BSV Cypress Point Merger Sub LLC, a Maryland limited liability company (“Merger Sub”), is made and entered into effective as of December 27, 2019, by and among the Company, the Operating Partnership, Broad Street and Merger Sub (collectively, the “Parties”).

RECITALS:

WHEREAS, the Parties entered into the Merger Agreement on May 28, 2019 (as amended by the First Amendment to the Agreement and Plan of Merger, dated as of November 27, 2019);

WHEREAS, the Parties desire to amend the Merger Agreement as set forth herein; and

WHEREAS, capitalized terms used in this Amendment and not defined herein shall have the meanings ascribed to such terms in the Merger Agreement.

Amendment to Exhibit A. The following defined term set forth in Section (nn) of Exhibit A to the Merger Agreement is hereby deleted in its entirety and replaced in its entirety with the following:

“Outside Date” means March 31, 2020.

Miscellaneous.

All references to the “Agreement” set forth in the Merger Agreement shall be deemed to be references to the Merger Agreement, as amended by this Amendment.

[SIGNATURE PAGES FOLLOW]

In witness whereof, the undersigned Parties have caused this Amendment to be executed and delivered by their respective duly authorized officers as of the date first written above.

	BSV CYPRESS POINT INVESTORS LLC By: BROAD STREET VENTURES, LLC, its manager By: /s/ Michael Z. Jacoby Name: Michael Z. Jacoby Title: Chief Executive Officer
	BROAD STREET REALTY, INC. By: /s/ Michael Z. Jacoby Name: Michael Z. Jacoby Title: Chief Executive Officer
	BROAD STREET OPERATING PARTNERSHIP, LP By: BROAD STREET OP GP, LLC, its general partner By: BROAD STREET REALTY, INC., its sole member By: /s/ Michael Z. Jacoby Name: Michael Z. Jacoby Title: Chief Executive Officer
	BSV CYPRESS POINT MERGER SUB LLC By: BROAD STREET REALTY, INC., its sole member By: /s/ Michael Z. Jacoby Name: Michael Z. Jacoby Title: Chief Executive Officer

Exhibit 10.9

SECOND AMENDMENT TO

AGREEMENT AND PLAN OF MERGER

This Second Amendment (this “Amendment”) to the Agreement and Plan of Merger, dated as of May 28, 2019, as amended on November 27, 2019 (as amended, the “Merger Agreement”), by and among BSV Greenwood Investors LLC, a Delaware limited liability company (the “Company”), Broad Street Operating Partnership, LP, a Delaware limited partnership (the “Operating Partnership”), Broad Street Realty, Inc., a Delaware corporation (formerly known as MedAmerica Properties Inc.) (“Broad Street”), and BSV Greenwood Merger Sub LLC, a Delaware limited liability company (“Merger Sub”), is made and entered into effective as of December 27, 2019, by and among the Company, the Operating Partnership, Broad Street and Merger Sub (collectively, the “Parties”).

RECITALS:

WHEREAS, the Parties entered into the Merger Agreement on May 28, 2019 (as amended by the First Amendment to the Agreement and Plan of Merger, dated as of November 27, 2019);

WHEREAS, the Parties desire to amend the Merger Agreement as set forth herein; and

WHEREAS, capitalized terms used in this Amendment and not defined herein shall have the meanings ascribed to such terms in the Merger Agreement.

Amendment to Exhibit A. The following defined term set forth in Section (nn) of Exhibit A to the Merger Agreement is hereby deleted in its entirety and replaced in its entirety with the following:

“Outside Date” means March 31, 2020.

Miscellaneous.

All references to the “Agreement” set forth in the Merger Agreement shall be deemed to be references to the Merger Agreement, as amended by this Amendment.

[SIGNATURE PAGES FOLLOW]

In witness whereof, the undersigned Parties have caused this Amendment to be executed and delivered by their respective duly authorized officers as of the date first written above.

	BSV GREENWOOD INVESTORS LLC By: BROAD STREET VENTURES, LLC, its manager By: /s/ Michael Z. Jacoby Name: Michael Z. Jacoby Title: Chief Executive Officer
	BROAD STREET REALTY, INC. By: /s/ Michael Z. Jacoby Name: Michael Z. Jacoby Title: Chief Executive Officer
	BROAD STREET OPERATING PARTNERSHIP, LP By: BROAD STREET OP GP, LLC, its general partner By: BROAD STREET REALTY, INC., its sole member By: /s/ Michael Z. Jacoby Name: Michael Z. Jacoby Title: Chief Executive Officer
	BSV GREENWOOD MERGER SUB LLC By: BROAD STREET REALTY, INC., its sole member By: /s/ Michael Z. Jacoby Name: Michael Z. Jacoby Title: Chief Executive Officer

Exhibit 10.10

SECOND AMENDMENT TO

AGREEMENT AND PLAN OF MERGER

This Second Amendment (this “Amendment”) to the Agreement and Plan of Merger, dated as of May 28, 2019, as amended on November 27, 2019 (as amended, the “Merger Agreement”), by and among BSV Highlandtown Investors LLC, a Maryland limited liability company (the “Company”), Broad Street Operating Partnership, LP, a Delaware limited partnership (the “Operating Partnership”), Broad Street Realty, Inc., a Delaware corporation (formerly known as MedAmerica Properties Inc.) (“Broad Street”), and BSV Highlandtown Merger Sub LLC, a Maryland limited liability company (“Merger Sub”), is made and entered into effective as of December 27, 2019, by and among the Company, the Operating Partnership, Broad Street and Merger Sub (collectively, the “Parties”).

RECITALS:

WHEREAS, the Parties entered into the Merger Agreement on May 28, 2019 (as amended by the First Amendment to the Agreement and Plan of Merger, dated as of November 27, 2019);

WHEREAS, the Parties desire to amend the Merger Agreement as set forth herein; and

WHEREAS, capitalized terms used in this Amendment and not defined herein shall have the meanings ascribed to such terms in the Merger Agreement.

Amendment to Exhibit A. The following defined term set forth in Section (ll) of Exhibit A to the Merger Agreement is hereby deleted in its entirety and replaced in its entirety with the following:

“Outside Date” means March 31, 2020.

Miscellaneous.

All references to the “Agreement” set forth in the Merger Agreement shall be deemed to be references to the Merger Agreement, as amended by this Amendment.

[SIGNATURE PAGES FOLLOW]

In witness whereof, the undersigned Parties have caused this Amendment to be executed and delivered by their respective duly authorized officers as of the date first written above.

	BSV HIGHLANDTOWN INVESTORS LLC By: BROAD STREET VENTURES, LLC, its manager By: /s/ Michael Z. Jacoby Name: Michael Z. Jacoby Title: Chief Executive Officer
	BROAD STREET REALTY, INC. By: /s/ Michael Z. Jacoby Name: Michael Z. Jacoby Title: Chief Executive Officer
	BROAD STREET OPERATING PARTNERSHIP, LP By: BROAD STREET OP GP, LLC, its general partner By: BROAD STREET REALTY, INC., its sole member By: /s/ Michael Z. Jacoby Name: Michael Z. Jacoby Title: Chief Executive Officer
	BSV HIGHLANDTOWN MERGER SUB LLC By: BROAD STREET REALTY, INC., its sole member By: /s/ Michael Z. Jacoby Name: Michael Z. Jacoby Title: Chief Executive Officer

Exhibit 10.11

SECOND AMENDMENT TO

AGREEMENT AND PLAN OF MERGER

This Second Amendment (this “Amendment”) to the Agreement and Plan of Merger, dated as of May 28, 2019, as amended on November 27, 2019 (as amended, the “Merger Agreement”), by and among BSV Lamont Investors LLC, a Delaware limited liability company (the “Company”), Broad Street Operating Partnership, LP, a Delaware limited partnership (the “Operating Partnership”), Broad Street Realty, Inc., a Delaware corporation (formerly known as MedAmerica Properties Inc.) (“Broad Street”), and BSV Lamont Merger Sub LLC, a Delaware limited liability company (“Merger Sub”), is made and entered into effective as of December 27, 2019, by and among the Company, the Operating Partnership, Broad Street and Merger Sub (collectively, the “Parties”).

RECITALS:

WHEREAS, the Parties entered into the Merger Agreement on May 28, 2019 (as amended by the First Amendment to the Agreement and Plan of Merger, dated as of November 27, 2019);

WHEREAS, the Parties desire to amend the Merger Agreement as set forth herein; and

WHEREAS, capitalized terms used in this Amendment and not defined herein shall have the meanings ascribed to such terms in the Merger Agreement.

Amendment to Exhibit A. The following defined term set forth in Section (ii) of Exhibit A to the Merger Agreement is hereby deleted in its entirety and replaced in its entirety with the following:

“Outside Date” means March 31, 2020.

Miscellaneous.

All references to the “Agreement” set forth in the Merger Agreement shall be deemed to be references to the Merger Agreement, as amended by this Amendment.

[SIGNATURE PAGES FOLLOW]

In witness whereof, the undersigned Parties have caused this Amendment to be executed and delivered by their respective duly authorized officers as of the date first written above.

	BSV LAMONT INVESTORS LLC By: BROAD STREET VENTURES, LLC, its manager By: /s/ Michael Z. Jacoby Name: Michael Z. Jacoby Title: Chief Executive Officer
	BROAD STREET REALTY, INC. By: /s/ Michael Z. Jacoby Name: Michael Z. Jacoby Title: Chief Executive Officer
	BROAD STREET OPERATING PARTNERSHIP, LP By: BROAD STREET OP GP, LLC, its general partner By: BROAD STREET REALTY, INC., its sole member By: /s/ Michael Z. Jacoby Name: Michael Z. Jacoby Title: Chief Executive Officer
	BSV LAMONT MERGER SUB LLC By: BROAD STREET REALTY, INC., its sole member By: /s/ Michael Z. Jacoby Name: Michael Z. Jacoby Title: Chief Executive Officer

Exhibit 10.12

SECOND AMENDMENT TO

AGREEMENT AND PLAN OF MERGER

This Second Amendment (this “Amendment”) to the Agreement and Plan of Merger, dated as of May 28, 2019, as amended on November 27, 2019 (as amended, the “Merger Agreement”), by and among BSV LSP East Investors LLC, a Delaware limited liability company (the “Company”), Broad Street Operating Partnership, LP, a Delaware limited partnership (the “Operating Partnership”), Broad Street Realty, Inc., a Delaware corporation (formerly known as MedAmerica Properties Inc.) (“Broad Street”), and BSV LSP East Merger Sub LLC, a Delaware limited liability company (“Merger Sub”), is made and entered into effective as of December 27, 2019, by and among the Company, the Operating Partnership, Broad Street and Merger Sub (collectively, the “Parties”).

RECITALS:

WHEREAS, the Parties entered into the Merger Agreement on May 28, 2019 (as amended by the First Amendment to the Agreement and Plan of Merger, dated as of November 27, 2019);

WHEREAS, the Parties desire to amend the Merger Agreement as set forth herein; and

WHEREAS, capitalized terms used in this Amendment and not defined herein shall have the meanings ascribed to such terms in the Merger Agreement.

Amendment to Exhibit A. The following defined term set forth in Section (nn) of Exhibit A to the Merger Agreement is hereby deleted in its entirety and replaced in its entirety with the following:

“Outside Date” means March 31, 2020.

Miscellaneous.

All references to the “Agreement” set forth in the Merger Agreement shall be deemed to be references to the Merger Agreement, as amended by this Amendment.

[SIGNATURE PAGES FOLLOW]

In witness whereof, the undersigned Parties have caused this Amendment to be executed and delivered by their respective duly authorized officers as of the date first written above.

	BSV LSP EAST INVESTORS LLC By: BROAD STREET VENTURES, LLC, its manager By: /s/ Michael Z. Jacoby Name: Michael Z. Jacoby Title: Chief Executive Officer
	BROAD STREET REALTY, INC. By: /s/ Michael Z. Jacoby Name: Michael Z. Jacoby Title: Chief Executive Officer
	BROAD STREET OPERATING PARTNERSHIP, LP By: BROAD STREET OP GP, LLC, its general partner By: BROAD STREET REALTY, INC., its sole member By: /s/ Michael Z. Jacoby Name: Michael Z. Jacoby Title: Chief Executive Officer
	BSV LSP EAST MERGER SUB LLC By: BROAD STREET REALTY, INC., its sole member By: /s/ Michael Z. Jacoby Name: Michael Z. Jacoby Title: Chief Executive Officer

Exhibit 10.13

SECOND AMENDMENT TO

AGREEMENT AND PLAN OF MERGER

This Second Amendment (this “Amendment”) to the Agreement and Plan of Merger, dated as of May 28, 2019, as amended on November 27, 2019 (as amended, the “Merger Agreement”), by and among BSV Premier Brookhill LLC, a Virginia limited liability company (the “Company”), Broad Street Operating Partnership, LP, a Delaware limited partnership (the “Operating Partnership”), Broad Street Realty, Inc., a Delaware corporation (formerly known as MedAmerica Properties Inc.) (“Broad Street”), and BSV Brookhill Merger Sub LLC, a Virginia limited liability company (“Merger Sub”), is made and entered into effective as of December 27, 2019, by and among the Company, the Operating Partnership, Broad Street and Merger Sub (collectively, the “Parties”).

RECITALS:

WHEREAS, the Parties entered into the Merger Agreement on May 28, 2019 (as amended by the First Amendment to the Agreement and Plan of Merger, dated as of November 27, 2019);

WHEREAS, the Parties desire to amend the Merger Agreement as set forth herein; and

WHEREAS, capitalized terms used in this Amendment and not defined herein shall have the meanings ascribed to such terms in the Merger Agreement.

Amendment to Exhibit A. The following defined term set forth in Section (ll) of Exhibit A to the Merger Agreement is hereby deleted in its entirety and replaced in its entirety with the following:

“Outside Date” means March 31, 2020.

Miscellaneous.

All references to the “Agreement” set forth in the Merger Agreement shall be deemed to be references to the Merger Agreement, as amended by this Amendment.

[SIGNATURE PAGES FOLLOW]

In witness whereof, the undersigned Parties have caused this Amendment to be executed and delivered by their respective duly authorized officers as of the date first written above.

	BSV PREMIER BROOKHILL LLC By: BROAD STREET VENTURES, LLC, its manager By: /s/ Michael Z. Jacoby Name: Michael Z. Jacoby Title: Chief Executive Officer
	BROAD STREET REALTY, INC. By: /s/ Michael Z. Jacoby Name: Michael Z. Jacoby Title: Chief Executive Officer
	BROAD STREET OPERATING PARTNERSHIP, LP By: BROAD STREET OP GP, LLC, its general partner By: BROAD STREET REALTY, INC., its sole member By: /s/ Michael Z. Jacoby Name: Michael Z. Jacoby Title: Chief Executive Officer
	BSV BROOKHILL MERGER SUB LLC By: BROAD STREET REALTY, INC., its sole member By: /s/ Michael Z. Jacoby Name: Michael Z. Jacoby Title: Chief Executive Officer

Exhibit 10.14

SECOND AMENDMENT TO

AGREEMENT AND PLAN OF MERGER

This Second Amendment (this “Amendment”) to the Agreement and Plan of Merger, dated as of May 28, 2019, as amended on November 27, 2019 (as amended, the “Merger Agreement”), by and among BSV Spotswood Investors LLC, a Maryland limited liability company (the “Company”), Broad Street Operating Partnership, LP, a Delaware limited partnership (the “Operating Partnership”), Broad Street Realty, Inc., a Delaware corporation (formerly known as MedAmerica Properties Inc.) (“Broad Street”), and Spotswood Merger Sub LLC, a Maryland limited liability company (“Merger Sub”), is made and entered into effective as of December 27, 2019, by and among the Company, the Operating Partnership, Broad Street and Merger Sub (collectively, the “Parties”).

RECITALS:

WHEREAS, the Parties entered into the Merger Agreement on May 28, 2019 (as amended by the First Amendment to the Agreement and Plan of Merger, dated as of November 27, 2019);

WHEREAS, the Parties desire to amend the Merger Agreement as set forth herein; and

WHEREAS, capitalized terms used in this Amendment and not defined herein shall have the meanings ascribed to such terms in the Merger Agreement.

Amendment to Exhibit A. The following defined term set forth in Section (nn) of Exhibit A to the Merger Agreement is hereby deleted in its entirety and replaced in its entirety with the following:

“Outside Date” means March 31, 2020.

Miscellaneous.

All references to the “Agreement” set forth in the Merger Agreement shall be deemed to be references to the Merger Agreement, as amended by this Amendment.

[SIGNATURE PAGES FOLLOW]

In witness whereof, the undersigned Parties have caused this Amendment to be executed and delivered by their respective duly authorized officers as of the date first written above.

	BSV SPOTSWOOD INVESTORS LLC By: BROAD STREET VENTURES, LLC, its manager By: /s/ Michael Z. Jacoby Name: Michael Z. Jacoby Title: Chief Executive Officer
	BROAD STREET REALTY, INC. By: /s/ Michael Z. Jacoby Name: Michael Z. Jacoby Title: Chief Executive Officer
	BROAD STREET OPERATING PARTNERSHIP, LP By: BROAD STREET OP GP, LLC, its general partner By: BROAD STREET REALTY, INC., its sole member By: /s/ Michael Z. Jacoby Name: Michael Z. Jacoby Title: Chief Executive Officer
	BSV SPOTSWOOD MERGER SUB LLC By: BROAD STREET REALTY, INC., its sole member By: /s/ Michael Z. Jacoby Name: Michael Z. Jacoby Title: Chief Executive Officer

Exhibit 10.15

Execution Version

BROAD STREET REALTY, INC.
EMPLOYMENT AGREEMENT

This EMPLOYMENT AGREEMENT (this “Agreement”), dated as of December 27, 2019 (the “Effective Date”), is by and among Broad Street Realty, Inc., a Delaware corporation (“BSR”), and Broad Street Operating Partnership, LP, a Delaware limited partnership (the “Operating Partnership” and, together with BSR, the “Company”), and Michael Jacoby (the
“Executive”).

W I T N E S S E T H

WHEREAS, the Company desires to employ the Executive, and the Executive desires to be employed by the Company, upon the terms and subject to the conditions set forth in this Agreement, effective as of the Effective Date.

NOW, THEREFORE, in consideration of the foregoing, of the mutual promises contained herein and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:

1. POSITION AND DUTIES.

(a) During the Employment Term (as defined in Section 2), the Executive shall serve as the Chairman and Chief Executive Officer of the Company. In this capacity, the Executive shall have the duties, authorities and responsibilities as are required by the Executive’s position commensurate with the duties, authorities and responsibilities of persons in similar capacities in similarly sized companies, and such other duties, authorities and responsibilities as may reasonably be assigned to the Executive as the Board of Directors of BSR (the “Board”) shall designate from time to time that are not inconsistent with the Executive’s position with the Company and that are consistent with the bylaws of BSR and the first amended and restated agreement of limited partnership of the Operating Partnership, as they may be further amended from time to time, including, but not limited to, managing the affairs of the Company. The Executive’s principal place of employment with the Company shall be in Bethesda, Maryland; provided that the Executive understands and agrees that the Executive may be required to travel from time to time for business purposes. The Executive shall report directly to the Board.

(b) During the Employment Term, the Executive shall devote substantially all of the Executive’s business time, energy, business judgment, knowledge and skill and the Executive’s best efforts to the performance of the Executive’s duties with the Company; provided that the foregoing shall not prevent the Executive from (i) serving on the boards of directors of non-profit organizations, (ii) participating in charitable, civic, educational, professional, community or industry affairs, and (iii) managing the Executive’s personal investments and/or personal business as necessary, so long as such activities in the aggregate do not interfere or conflict with the Executive’s duties hereunder or create a potential business or fiduciary conflict.

2. EMPLOYMENT TERM. The Company agrees to employ the Executive pursuant to the terms of this Agreement, and the Executive agrees to be so employed, for a term of three years (the “Initial Term”) commencing as of the Effective Date. Commencing with the last day of the Initial Term, and on each subsequent anniversary of such date, the term of this Agreement shall be automatically extended for successive one-year periods; provided, however, that either party hereto may elect not to extend this Agreement by giving written notice to the other party at least sixty (60) days prior to any such anniversary date. Notwithstanding the foregoing, the Executive’s employment hereunder may be earlier terminated in accordance with Section 7, subject to Section 8. The period of time between the Effective Date and the end of the Initial Term and any successor terms (or earlier upon a termination of the Executive’s employment hereunder) shall be referred to herein as the “Employment Term.” If the Executive’s employment continues following any expiration of the Employment Term due to either party giving notice not to extend this Agreement, such employment will be entirely “at-will,” and will not be covered by this Agreement (except for the applicable restrictive covenant provisions, which are intended to survive expiration of this Agreement as set forth herein).

3. BASE SALARY. The Company agrees to pay the Executive a base salary at the annual rate of $400,000, payable in accordance with the regular payroll practices of the Company, but not less frequently than monthly. The Base Salary shall be subject to review by the Compensation Committee (the “Compensation Committee”) of the Board from time to time, and may be increased (but not decreased) by the Compensation Committee in its sole discretion (such base salary, as may be adjusted from time to time by the Compensation Committee, the “Base Salary”).

4. ANNUAL BONUS. During each fiscal year during the Employment Term, the Executive shall be eligible to receive an annual bonus (the “Annual Bonus”) with a “target” opportunity equal to 100% of the Base Salary. The “target” Annual Bonus opportunity shall be subject to review by the Compensation Committee from time to time, and may be increased (but not decreased) by the Compensation Committee in its sole discretion (such target opportunity, as determined by the Compensation Committee from time to time, the “Target Bonus”). Notwithstanding the foregoing, for each of the first two fiscal years during the Employment Term, the Annual Bonus that is paid to the Executive shall not exceed 25% of the Base Salary.

5. EQUITY AWARDS. The Executive shall be considered to receive equity and other long-term incentive awards (including long-term incentive units in the Operating Partnership) under any applicable plan maintained by the Company during the Employment Term.

6. EMPLOYEE BENEFITS.

(a) BENEFIT PLANS. During the Employment Term, the Executive shall be entitled to participate in any employee benefit plans that the Company maintains or contributes to for the benefit of its employees generally, subject to satisfying the applicable eligibility requirements, except to the extent such plans are duplicative of the benefits otherwise provided hereunder. The Executive’s participation will be subject to the terms of the applicable plan documents and generally applicable Company policies. Notwithstanding the foregoing, the Company may modify or terminate any employee benefit plan at any time, according to the terms of such employee benefit plan.

(b) VACATIONS. During the Employment Term, the Executive shall be entitled to paid vacation per calendar year (as prorated for partial years) in accordance with the Company’s policy on accrual and use applicable to employees as in effect from time to time, but in no event shall the Executive accrue less than four (4) weeks of vacation per calendar year (pro-rated for any partial year of service).

(c) EXPENSES. Upon presentation of reasonable substantiation and documentation as the Company may specify from time to time, the Executive shall be reimbursed in accordance with the Company’s expense reimbursement policy, for all reasonable out-of-pocket business and entertainment expenses incurred and paid by the Executive during the Employment Term and in connection with the performance of the Executive’s duties hereunder.

7. TERMINATION. The Executive’s employment and the Employment Term shall terminate on the first of the following to occur:

(a) DISABILITY. Upon termination of the Executive’s employment by the Company due to Disability. For purposes of this Agreement, “Disability” shall mean the inability of the Executive to have performed the Executive’s material duties hereunder due to a physical or mental injury, infirmity or incapacity which is determined to be permanent by a physician selected by the Company or its insurers and reasonably acceptable to the Executive, for one hundred eighty (180) days (including weekends and holidays) in any 365-day period.

(b) DEATH. Automatically upon the date of death of the Executive.

(c) CAUSE. Upon termination of the Executive’s employment by the Company for Cause. “Cause” shall mean the Executive’s:

(i) refusal to substantially perform, following notice by the Company to the Executive, the Executive’s duties to the Company, or gross negligence or willful misconduct in connection with the performance of the Executive’s duties to the Company;

(ii) conviction of, or plea of guilty or nolo contendere to, (A) a felony or (B) any other criminal offense involving an act of dishonesty intended to result in personal enrichment of the Executive at the expense of the Company or an affiliate of the Company; or

(iii) material breach of any (A) Company policy or (B) term of this Agreement or any other employment, consulting or other services, confidentiality, intellectual property or non-competition agreement between the Executive and the Company or an affiliate of the Company.

Any determination of Cause by the Company will be made by a resolution approved by a majority of the members of the Board; provided that no such determination may be made until the Executive has been given written notice detailing the specific Cause event and a period of thirty (30) days following receipt of such notice to cure such event (if susceptible to cure) to the satisfaction of the Board. Notwithstanding anything to the contrary contained herein, the Executive’s right to cure as set forth in the preceding sentence shall not apply if there are habitually repeated breaches by the Executive.

(d) WITHOUT CAUSE. Upon termination by the Company of the Executive’s employment without Cause (other than for Disability).

(e) GOOD REASON. Upon termination by the Executive for Good Reason. “Good Reason” shall mean the occurrence of any of the following events, without the express written consent of the Executive, unless such event is not habitually repeated and is corrected in all material respects by the Company within thirty (30) days following written notification by the Executive to the Company of the occurrence of one of the following:

(i) a material reduction in the Base Salary or Target Bonus;

(ii) the assignment to the Executive of duties or responsibilities substantially inconsistent with the Executive’s position, or any other action by the Company which results in a substantial diminution of the Executive’s duties, authorities or responsibilities (other than temporarily while physically or mentally incapacitated or as required by applicable law);

(iii) a change to the Executive’s principal work location that is greater than fifty (50) miles;

(iv) a material adverse change in the reporting structure applicable to the Executive;

(v) any failure of the Board to nominate the Executive for re-election to the Board at any annual meeting of the Company’s stockholders while the Executive serves as the Chairman and Chief Executive Officer of the Company; provided that, at the time of each annual meeting, (i) the Executive is not experiencing a Disability, (ii) the Company has not notified the Executive of its intention to terminate the Executive’s employment for Cause, and (iii) the Executive has not notified the Company of his intention to resign his employment; or

(vi) the Company’s material breach of the terms of this Agreement.

The Executive shall provide the Company with a written notice detailing the specific circumstances alleged to constitute Good Reason within ninety (90) days after the first occurrence of such circumstances that the Executive knows or reasonably should have known to constitute Good Reason, and actually terminate employment within thirty (30) days following the expiration of the Company’s thirty (30)-day cure period described above. The failure by the Executive to provide written notice in detail of the circumstances constituting “Good Reason” within the time period set forth in the preceding sentence shall result in the Executive being deemed not to have terminated employment for Good Reason and to have irrevocably waived any claim of such circumstances constituting Good Reason under this Agreement.

(f) WITHOUT GOOD REASON. Upon the Executive’s voluntary termination of employment without Good Reason. The Executive shall provide at least thirty (30) days’ prior written notice of any termination without Good Reason. The Company may, in its sole discretion, make the termination effective earlier than the termination date set forth in such notice.

(g) EXPIRATION OF EMPLOYMENT TERM; NON-EXTENSION OF AGREEMENT. Upon the expiration of the Employment Term due to a non-extension of the Agreement by the Company or the Executive pursuant to Section 2; provided, however, that the parties hereto may agree that the Executive’s employment will not terminate upon expiration of the Employment Term, but will instead continue on an at-will basis in accordance with the last sentence of Section 2.

8. CONSEQUENCES OF TERMINATION.

(a) DEATH. In the event that the Executive’s employment and the Employment Term end on account of the Executive’s death, the Executive’s estate shall be entitled to a lump sum payment of the following within sixty (60) days following termination of employment, or such earlier date as may be required by applicable law:

(i) any unpaid Base Salary through the termination date;

(ii) any accrued but unused vacation time in accordance with Company policy; and

(iii) reimbursement for any unreimbursed business expenses incurred through the termination date (collectively, Sections 8(a)(i) through 8(a)(iii) shall be hereafter referred to as the “Accrued Benefits”).

(b) DISABILITY. In the event that the Executive’s employment and the Employment Term end on account of the Company’s termination of the Executive’s employment due to the Executive’s Disability, the Company shall pay or provide the Executive with the Accrued Benefits and, subject to the Executive’s execution and non-revocation of the Release in accordance with Section 9 and his continued compliance with the obligations set forth in Section 10, the following payments (collectively, the “Disability Payments”):

(i) any earned but unpaid Annual Bonus relating to the year prior to the year of termination; and

(ii) subject to Section 8(i) and the Executive’s timely election of continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), the Executive shall be reimbursed for the amount equal to the COBRA continuation coverage premiums paid by the Executive that is required for coverage of the Executive (and/or his eligible dependents) under the Company’s major medical group health plan, for a period of eighteen (18) months; provided, however, that the Company’s obligation to provide such reimbursement will cease during any period that the Executive is employed by a third party that provides comparable coverage at a comparable cost to the Executive.

(c) TERMINATION FOR CAUSE OR WITHOUT GOOD REASON OR AS A RESULT OF EXECUTIVE NON-EXTENSION OF THIS AGREEMENT. If the Executive’s employment and the Employment Term are terminated (x) by the Company for Cause, (y) by the Executive without Good Reason, or (z) as a result of the Executive’s non-extension of the Employment Term as provided in Section 2, the Company shall pay to the Executive the Accrued Benefits.

(d) TERMINATION WITHOUT CAUSE OR FOR GOOD REASON; TERMINATION AS A RESULT OF COMPANY NON-EXTENSION OF THIS AGREEMENT. If the Executive’s employment and the Employment Term are terminated (x) by the Company other than for Cause (other than for Disability), (y) by the Executive for Good Reason, or (z) as a result of the Company’s non-extension of the Employment Term as provided in Section 2 and the Executive was willing and able to remain employed, the Company shall pay or provide the Executive with the Accrued Benefits and, subject to the Executive’s execution and non-revocation of the Release in accordance with Section 9 and his continued compliance with the obligations set forth in Section 10, the following payments and benefits (collectively, the “Severance Benefits”):

(i) any earned but unpaid Annual Bonus relating to the year prior to the year of termination;

(ii) an amount equal to three (3) times the sum of (A) the Base Salary in effect on the termination date and (B) the average Annual Bonus earned by the Executive for the two (2) Company fiscal years ending during the Employment Period and immediately preceding the Company fiscal year in which such termination occurs (regardless of whether such amount was paid out on a current basis or deferred), paid monthly in equal installments for a period of twelve (12) months and, subject to Section 22, beginning sixty (60) days following such termination;

(iii) subject to Section 8(i) and the Executive’s timely election of continuation coverage under COBRA, the Executive shall be reimbursed for the amount equal to the COBRA continuation coverage premiums paid by the Executive that is required for coverage of the Executive (or his eligible dependents) under the Company’s major medical group health plan, for a period of eighteen (18) months; provided, however, that the Company’s obligation to provide such reimbursement will cease during any period that the Executive is employed by a third party that provides comparable coverage at a comparable cost to the Executive; and

(iv) all of the Executive’s equity-based awards that are outstanding on the termination date shall immediately become fully vested and, as applicable, exercisable, without any action by the Board or Compensation Committee.

The Severance Benefits shall be in lieu of any termination or severance payments or benefits for which the Executive may be eligible under any of the plans, policies or programs of the Company or under the Worker Adjustment Retraining Notification Act of 1988 or any similar state statute or regulation.

For purposes of Section 8(d)(ii)(B), in the event that the Executive’s termination occurs prior to the end of the completion of two (2) Company fiscal years during the Employment Term, then the amount in Section 8(d)(ii)(B) shall be determined by using the Target Bonus for any such fiscal year not yet completed, together with the Annual Bonus actually earned by the Executive for the fiscal year completed during the Employment Term (if any), annualized for any such partial fiscal year.

(e) EFFECT OF CHANGE IN CONTROL. In the event of a Change in Control, all of the Executive’s equity-based awards that are outstanding at the time of the Change in Control shall immediately become fully vested and, as applicable, exercisable, without any action by the Board or Compensation Committee. “Change in Control” shall mean:

(i) Any “person” as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as now in effect or as hereafter amended (the “Exchange Act”) (other than BSR, any trustee or other fiduciary holding securities under any employee benefit plan of BSR or any corporation owned, directly or indirectly, by the stockholders of BSR in substantially the same proportion as their ownership of stock of BSR), is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of BSR representing 50% or more of the combined voting power of BSR’s then outstanding voting securities;

(ii) During any period of twelve (12) consecutive months, individuals who at the beginning of such period constitute the Board, and any new director (other than a director designated by a person who has entered into an agreement with BSR to effect a transaction described in clause (i), (iii) or (iv) hereof) whose election by the Board or nomination for election by BSR’s stockholders was approved by a vote of at least a majority of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute at least a majority thereof, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or actual threatened solicitation of proxies or consents by or on behalf of a person other than the Board;

(iii) The consummation of a merger or consolidation of BSR with any other entity or the issuance of voting securities in connection with a merger or consolidation of BSR (or any direct or indirect subsidiary thereof) pursuant to applicable exchange requirements, other than (A) a merger or consolidation which would result in the voting securities of BSR outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving or parent entity) at least 50.1% of the combined voting power of the voting securities of BSR or such surviving or parent entity outstanding immediately after such merger or consolidation or (B) a merger or consolidation effected to implement a recapitalization of BSR (or similar transaction) in which no “person” (as defined in clause (i) above) is or becomes the beneficial owner, directly or indirectly, of securities of BSR representing 50% or more of either of the then outstanding shares of common stock of BSR, or the combined voting power of BSR’s then outstanding voting securities; or

(iv) The consummation of a sale or disposition by BSR of all or substantially all of BSR’s assets (or any transaction or series of transactions within a period of twelve (12) months ending on the date of the last sale or disposition having a similar effect).

Notwithstanding the foregoing, if any of the Executive’s equity-based awards that are outstanding at the time of a Change in Control constitute deferred compensation within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), no payment, settlement or vesting (if vesting would be deemed a distribution with respect to such award under Section 409A of the Code) shall occur with respect to such award on account of the Change in Control transaction or event unless the transaction or event also constitutes a change in the ownership or effective control of BSR or a change in the ownership of a substantial portion of BSR’s assets, as those terms are used in Section 409A(a)(2)(A)(v) of the Code.

(f) CODE SECTION 280G. If any payment or benefit received or to be received by the Executive pursuant to this Agreement or otherwise (“Payments”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code, and (ii) but for this subsection (f), be subject to the excise tax imposed by Section 4999 of the Code, any successor provisions, or any comparable federal, state, local or foreign excise tax (the “Excise Tax”), then such Payments shall be either (A) provided in full pursuant to the terms of this Agreement or any other applicable plan or agreement, or (B) provided as to such lesser extent which would result in no portion of such Payments being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state, local and foreign income, employment and other taxes and the Excise Tax, results in the receipt by the Executive, on an after-tax basis, of the greatest amount of payments and benefits, notwithstanding that all or some portion of such Payments may be subject to the Excise Tax. If a reduction is required pursuant to this subsection (f), the reduction shall be made as follows: (x) if none of the parachute payments constitute non-qualified deferred compensation (within the meaning of Section 409A of the Code), then the reduction shall occur in the manner the Executive elects in writing, and (y) if any parachute payments constitute non-qualified deferred compensation or if the Executive fails to elect an order, then the parachute payments to be reduced will be determined by the Accounting Firm (defined below) in a manner which has the least economic cost to the Executive and, to the extent the economic cost is equivalent, will be reduced in the inverse order of when payment would have been made to the Executive, until the reduction is achieved. Any determination required under this subsection (f) shall be made by an independent accounting firm designated by the Company (the “Accounting Firm”), whose determination shall be conclusive and binding upon the Executive and the Company for all purposes. For purposes of making the calculations required under this subsection (f), the Accounting Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code; provided that the Accounting Firm shall assume that the Executive pays all taxes at the highest marginal rate. The Company and the Executive shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably request in order to make a determination under this subsection (f). The Company will bear all costs that the Accounting Firm may reasonably incur in connection with any calculations contemplated by this subsection (f).

(g) OTHER OBLIGATIONS. Upon any termination of the Executive’s employment with the Company, unless otherwise specified in a written agreement between the Company and the Executive, the Executive shall be deemed to have resigned from the Board (if applicable) and any other position as an officer, director or fiduciary of the Company and its affiliates, and shall take any and all actions reasonably requested by the Company to effectuate the foregoing.

(h) EXCLUSIVE REMEDY. The amounts payable to the Executive following termination of employment and the Employment Term hereunder pursuant to this Section 8 shall be in full and complete satisfaction of the Executive’s rights under this Agreement and any other claims that the Executive may have in respect of the Executive’s employment with the Company or any of its affiliates, and the Executive acknowledges that such amounts are fair and reasonable, and are the Executive’s sole and exclusive remedy, in lieu of all other remedies at law or in equity, with respect to the termination of the Executive’s employment hereunder or any breach of this Agreement.

(i) COBRA REIMBURSEMENTS. The COBRA reimbursements described in Section 9(b)(ii) and Section 9(d)(iii) shall be provided to the Executive (i) only to the extent that such reimbursements are permitted by applicable law and do not cause the Company to incur adverse tax or similar consequences and (ii) shall be taxable to the Executive to the extent required to avoid adverse tax or similar consequences to the Executive, other employees or the Company.

9. RELEASE. Any and all amounts payable and benefits or additional rights provided pursuant to Section 8(b) or Section 8(d) (other than the Accrued Benefits) shall only be payable if the Executive delivers to the Company and does not revoke a general release of claims in favor of the Company in substantially the form attached as Exhibit A hereto (the “Release”). The Release shall be executed and delivered (and no longer subject to revocation, if applicable) within sixty (60) days following termination.

10. RESTRICTIVE COVENANTS.

(a) CONFIDENTIALITY. During the course of the Executive’s employment with the Company, the Executive will have access to Confidential Information. For purposes of this Agreement, “Confidential Information” means all data, information, ideas, concepts, discoveries, trade secrets, inventions (whether or not patentable or reduced to practice), innovations, improvements, know-how, developments, techniques, methods, processes, treatments, drawings, sketches, specifications, designs, plans, patterns, models, plans and strategies, and all other confidential or proprietary information or trade secrets in any form or medium (whether merely remembered or embodied in a tangible or intangible form or medium) whether now or hereafter existing, relating to or arising from the past, current or potential business, activities and/or operations of the Company or any of its affiliates, including, without limitation, any such information relating to or concerning finances, sales, marketing, advertising, transition, promotions, pricing, personnel, customers, suppliers, vendors, raw partners and/or competitors. The Executive agrees that the Executive shall not, directly or indirectly, use, make available, sell, disclose or otherwise communicate to any person, other than in the course of the Executive’s assigned duties and for the benefit of the Company, either during the period of the Executive’s employment or at any time thereafter, any Confidential Information or other confidential or proprietary information received from third parties subject to a duty on the Company’s and its affiliates’ part to maintain the confidentiality of such information, and to use such information only for certain limited purposes, in each case, which shall have been obtained by the Executive during the Executive’s employment by the Company (or any predecessor). The foregoing shall not apply to information that (i) was known to the Executive or the public prior to its disclosure to the Executive; (ii) becomes generally known to the public subsequent to disclosure to the Executive through no wrongful act of the Executive or any representative of the Executive; or (iii) the Executive is required to disclose by applicable law, regulation or legal process (provided that the Executive provides the Company with prior notice of the contemplated disclosure and cooperates with the Company at its expense in seeking a protective order or other appropriate protection of such information).

(b) NONCOMPETITION. The Executive acknowledges that (i) the Executive performs services of a unique nature for the Company that are irreplaceable, and that the Executive’s performance of such services to a competing business will result in irreparable harm to the Company, (ii) the Executive has had and will continue to have access to Confidential Information which, if disclosed, would unfairly and inappropriately assist in competition against the Company or any of its affiliates, (iii) in the course of the Executive’s employment by a competitor, the Executive would inevitably use or disclose such Confidential Information, (iv) the Company and its affiliates have substantial relationships with their customers and the Executive has had and will continue to have access to these customers, (v) the Executive has received and will receive specialized training from the Company and its affiliates, and (vi) the Executive is expected to generate goodwill for the Company and its affiliates in the course of the Executive’s employment. Accordingly, during the Executive’s employment and for a period of one (1) year thereafter, the Executive agrees that the Executive will not, whether on the Executive’s own behalf or on behalf or in conjunction with any person, firm, partnership, joint venture, association corporation or other business organization, directly or indirectly, own, manage, operate, control, invest in, be employed by (whether as an employee, consultant, independent contractor or otherwise, and whether or not for compensation) or render services, including, without limitation, brokerage or advisory services, to any person, firm, corporation or other entity, in whatever form, engaged in the business of owning, operating, developing and redeveloping retail-based or mixed use commercial real estate properties (the “Business”) or in any other business in which the Company or any of its affiliates is engaged on the termination date or in which they have planned, on or prior to such date, to be engaged in on or after such date within any state within the United States of America. Notwithstanding the foregoing, nothing herein shall prohibit the Executive from (i) being a passive owner of not more than five percent (5%) of the equity securities of a publicly traded corporation engaged in a business that is in competition with the Company or any of its affiliates, so long as the Executive has no active participation in the business of such corporation or (ii) owning, managing, operating, controlling, or being employed by any firm, corporation or other entity in the same capacity in which the Executive was engaged immediately prior to the termination of the Executive’s employment hereunder, as long as (a) the Board has been apprised of the identity of, and the Executive’s role with, such firm, corporation or other entity and (b) the Board has previously approved in writing the Executive’s role with such firm, corporation or other entity, in the case of both (a) and (b), prior to termination of the Executive’s employment. In addition, the provisions of this Section 10(b) shall not be violated by the Executive commencing employment with a subsidiary, division or unit of any entity that engages in a business in competition with the Company or any of its affiliates so long as: (i) the Executive and such subsidiary, division or unit does not engage in a business in competition with the Company or any of its affiliates; and (ii) the Executive informs such entity of the restrictions contained in this Section 10.

(i) During the Executive’s employment with the Company and for a period of one (1) year thereafter, the Executive agrees that the Executive shall not, except in the furtherance of the Executive’s duties hereunder, directly or indirectly, individually or on behalf of any other person, firm, corporation or other entity, solicit, aid or induce any customer of the Company or any of its affiliates to purchase goods or services then sold by the Company or any of its affiliates from another person, firm, corporation or other entity or assist or aid any other persons or entity in identifying or soliciting any such customer.

(ii) During the Executive’s employment with the Company and for a period of one (1) year thereafter, the Executive agrees that the Executive shall not, except in the furtherance of the Executive’s duties hereunder, directly or indirectly, individually or on behalf of any other person, firm, corporation or other entity, (A) solicit, aid or induce any employee, representative or agent of the Company or any of its affiliates to leave such employment or retention or to accept employment with or render services to or with any other person, firm, corporation or other entity unaffiliated with the Company or hire or retain any such employee, representative or agent, or take any action to materially assist or aid any other person, firm, corporation or other entity in identifying, hiring or soliciting any such employee, representative or agent (provided that this restriction shall not apply to professional service firms), or (B) interfere, or aid or induce any other person or entity in interfering, with the relationship between the Company or any of its affiliates and any of their respective vendors, joint venturers, licensors or tenants. An employee, representative or agent shall be deemed covered by this sub-section (ii) while so employed or retained and for a period of six (6) months thereafter.

(iii) Notwithstanding the foregoing, the provisions of this Section 10(c) shall not be violated by (A) general advertising or solicitation not specifically targeted at Company-related persons or entities, (B) the Executive serving as a reference, upon request, for any employee of the Company or any of its affiliates so long as such reference is not for an entity that is employing or retaining the Executive, or (C) actions taken by any person or entity with which the Executive is associated if the Executive is not personally involved in any manner in the matter and has not identified such Company-related person or entity for soliciting or hiring.

(d) NONDISPARAGMENT. The Executive agrees not to make negative comments or otherwise disparage the Company or its officers, directors, employees, stockholders, agents or products other than in the good faith performance of the Executive’s duties to the Company while the Executive is employed by the Company. The foregoing shall not be violated by truthful statements in response to legal process, required governmental testimony or filings (including, without limitation, filings or submissions to the Securities and Exchange Commission (the “SEC”), or administrative or arbitral proceedings (including, without limitation, depositions in connection with such proceedings).

(e) RETURN OF COMPANY PROPERTY. On the date of the Executive’s termination of employment with the Company for any reason (or at any time prior thereto at the Company’s request), the Executive shall return all property belonging to the Company or its affiliates (including, but not limited to, any Company-provided laptops, computers, cell phones, wireless electronic mail devices or other equipment, or documents and property belonging to the Company). The Executive may retain the Executive’s rolodex and similar address books provided that such items only include contact information.

(f) REASONABLENESS OF COVENANTS. In signing this Agreement, the Executive gives the Company assurance that the Executive has carefully read and considered all of the terms and conditions of this Agreement, including the restraints imposed under this Section 10. The Executive agrees that these restraints are necessary for the reasonable and proper protection of the Company and its affiliates and their Confidential Information and that each and every one of the restraints is reasonable in respect to subject matter, length of time and geographic area, and that these restraints, individually or in the aggregate, will not prevent the Executive from obtaining other suitable employment during the period in which the Executive is bound by the restraints. The Executive acknowledges that each of these covenants has a unique, very substantial and immeasurable value to the Company and its affiliates and that the Executive has sufficient assets and skills to provide a livelihood while such covenants remain in force. The Executive further covenants that the Executive will not challenge the reasonableness or enforceability of any of the covenants set forth in this Section 10. It is also agreed that each of the Company’s affiliates will have the right to enforce all of the Executive’s obligations to that affiliate under this Agreement, including without limitation pursuant to this Section 10.

(g) REFORMATION. If it is determined by a court of competent jurisdiction in any state that any restriction in this Section 10 is excessive in duration or scope or is unreasonable or unenforceable under applicable law, it is the intention of the parties that such restriction may be modified or amended by the court to render it enforceable to the maximum extent permitted by the laws of that state.

(h) TOLLING. In the event of any violation of the provisions of this Section 10 by the Executive, the Executive acknowledges and agrees that the post-termination restrictions contained in this Section 10 shall be extended by a period of time equal to the period of such violation, it being the intention of the parties hereto that the running of the applicable post-termination restriction period shall be tolled during any period of such violation.

(i) SURVIVAL OF PROVISIONS. The obligations contained in this Section 10 shall survive the termination or expiration of the Employment Term and the Executive’s employment with the Company and shall be fully enforceable thereafter.

(j) COOPERATION. Upon the receipt of reasonable notice from the Company (including outside counsel), the Executive agrees that while employed by the Company, the Executive will respond and provide information with regard to matters in which the Executive has knowledge as a result of the Executive’s employment with the Company, and will provide reasonable assistance to the Company, its affiliates and their respective representatives in defense of any claims that may be made against the Company or its affiliates, and will assist the Company and its affiliates in the prosecution of any claims that may be made by the Company or its affiliates, to the extent that such claims may relate to the period of the Executive’s employment with the Company.

(K) EMPLOYEE PROTECTIONS.

(i) Protected Rights. Notwithstanding anything to the contrary contained herein, nothing in this Agreement or otherwise limits the Executive’s ability to communicate directly with and provide information, including documents, not otherwise protected from disclosure by any applicable law or privilege to the SEC or any other federal, state or local governmental agency or commission (each, a “Government Agency”) regarding possible legal violations, without disclosure to the Company. The Company may not retaliate against the Executive for any of the foregoing activities, and nothing in this Agreement requires the Executive to waive any monetary award or other payment that the Executive might become entitled to from the SEC or any other Government Agency. Notwithstanding anything to the contrary herein, the Company nonetheless asserts and does not waive its attorney-client privilege over any information appropriately protected by the privilege.

(ii) Defend Trade Secrets Act Notification. The Executive is hereby notified that 18 U.S.C. § 1833(b) states as follows: “An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that—(A) is made—(i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.” Accordingly, notwithstanding any other provision of this Agreement to the contrary, the Executive has the right to (1) disclose in confidence trade secrets to federal, state, and local government officials, or to an attorney, for the sole purpose of reporting or investigating a suspected violation of the law or (2) disclose trade secrets in a document filed in a lawsuit or other proceeding so long as that filing is made under seal and protected from public disclosure. Nothing in this Agreement is intended to conflict with 18 U.S.C. § 1833(b) or create liability for disclosures of trade secrets that are expressly allowed by 18 U.S.C. § 1833(b).

11. EQUITABLE RELIEF AND OTHER REMEDIES. The Executive acknowledges and agrees that the Company’s remedies at law for a breach or threatened breach of any of the provisions of Section 10 would be inadequate and, in recognition of this fact, the Executive agrees that, in the event of such a breach or threatened breach, in addition to any remedies at law, the Company, without posting any bond or other security, shall be entitled to obtain equitable relief in the form of specific performance, a temporary restraining order, a temporary or permanent injunction or any other equitable remedy which may then be available, without the necessity of showing actual monetary damages. In the event of a violation by the Executive of Section 10, any Disability Payments, Severance Benefits or other severance being paid to the Executive pursuant to this Agreement or otherwise shall immediately cease. If the Company adopts a “clawback” or recoupment policy, payments under this Agreement will be subject to repayment to the Company, but only to the extent required by applicable law, regulation or listing requirement and so provided under the terms of such policy.

12. NO ASSIGNMENTS. This Agreement is personal to each of the parties hereto. Except as provided in this Section 12, no party may assign or delegate any rights or obligations hereunder without first obtaining the written consent of the other party hereto. The Company may assign this Agreement to any successor to all or substantially all of the business and/or assets of the Company; provided that the Company shall require such successor to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place. As used in this Agreement, “Company” shall mean the Company and any successor to its business and/or assets, which assumes and agrees to perform the duties and obligations of the Company under this Agreement by operation of law or otherwise.

13. NOTICE. Notices and all other communications provided for in this Agreement shall be in writing and shall be deemed to have been duly given (a) on the date of delivery, if delivered by hand, (b) on the date of transmission, if delivered by confirmed facsimile or electronic mail, (c) on the first business day following the date of deposit, if delivered by guaranteed overnight delivery service, or (d) on the fourth business day following the date delivered or mailed by United States registered or certified mail, return receipt requested, postage prepaid, addressed as follows:

If to the Executive:

At the address (or to the facsimile number) shown

in the books and records of the Company.

If to the Company:

Broad Street Realty, Inc.

7250 Woodmont Ave #350

Bethesda, Maryland 20814

Attention: Chief Financial Officer

or to such other address as either party may have furnished to the other in writing in accordance herewith, except that notices of change of address shall be effective only upon receipt.

14. SECTION HEADINGS; INCONSISTENCY. The section headings used in this Agreement are included solely for convenience and shall not affect, or be used in connection with, the interpretation of this Agreement. In the event of any inconsistency between the terms of this Agreement and any form, award, plan or policy of the Company, the terms of this Agreement shall govern and control.

15. SEVERABILITY. The provisions of this Agreement shall be deemed severable. The invalidity or unenforceability of any provision of this Agreement in any jurisdiction shall not affect the validity, legality or enforceability of the remainder of this Agreement in such jurisdiction or the validity, legality or enforceability of any provision of this Agreement in any other jurisdiction, it being intended that all rights and obligations of the parties hereunder shall be enforceable to the fullest extent permitted by applicable law.

16. COUNTERPARTS. This Agreement may be executed in several counterparts, each of which shall be deemed to be an original but all of which together will constitute one and the same instrument.

17. INDEMNIFICATION. In addition to any rights to indemnification to which the Executive is entitled under the bylaws of BSR or the first amended and restated agreement of limited partnership of the Operating Partnership, as they may be further amended from time to time, the Company hereby agrees to indemnify the Executive and hold the Executive harmless to the maximum extent permitted under the Delaware General Corporation Law and the Delaware Revised Uniform Limited Partnership Act or any successor provisions thereof and any other applicable state laws, in respect of any and all actions, suits, proceedings, claims, demands, judgments, costs, expenses (including reasonable attorney’s fees), losses, and damages resulting from the Executive’s good faith performance of the Executive’s duties and obligations with the Company. Costs and expenses incurred by the Executive in defense of such actions, suits or proceedings (including attorneys’ fees) shall be paid by the Company in advance of the final disposition of such litigation upon receipt by the Company of: (a) a written request for payment; (b) appropriate documentation evidencing the incurrence, amount and nature of the costs and expenses for which payment is being sought; and (c) an undertaking adequate under applicable law made by or on behalf of the Executive to repay the amounts so paid if it shall ultimately be determined that the Executive is not entitled to be indemnified by the Company under this Agreement. This obligation shall survive the termination of the Executive’s employment with the Company.

18. LIABILITY INSURANCE. The Company shall cover the Executive under directors’ and officers’ liability insurance both during and, while potential liability exists, after the term of this Agreement in the same amount and to the same extent as the Company covers its other officers and directors.

19. GOVERNING LAW. This Agreement, the rights and obligations of the parties hereto, and any claims or disputes relating thereto, shall be governed by and construed in accordance with the laws of the State of Delaware (without regard to its choice of law provisions). The parties acknowledge and agree that in connection with any dispute hereunder, each party shall pay all of its own costs and expenses, including, without limitation, its own legal fees and expenses.

20. MISCELLANEOUS. No provision of this Agreement may be modified, waived or discharged unless such waiver, modification or discharge is agreed to in writing and signed by the Executive and such officer or director as may be designated by the Board. No waiver by either party hereto at any time of any breach by the other party hereto of, or compliance with, any condition or provision of this Agreement to be performed by such other party shall be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time. This Agreement together with all exhibits hereto sets forth the entire agreement of the parties hereto in respect of the subject matter contained herein and supersedes any and all prior agreements or understandings between the Executive and the Company with respect to the subject matter hereof. No agreements or representations, oral or otherwise, express or implied, with respect to the subject matter hereof have been made by either party which are not expressly set forth in this Agreement. The payment or provision to the Executive by the Company of any remuneration, benefits or other financial obligations pursuant to this Agreement and any indemnification obligations, shall be allocated between the Company and the Operating Partnership by the Compensation Committee based on any reasonable method so long as such allocation does not unduly burden the Executive.

21. REPRESENTATIONS. The Executive represents and warrants to the Company that (a) the Executive has the legal right to enter into this Agreement and to perform all of the obligations on the Executive’s part to be performed hereunder in accordance with its terms, and (b) the Executive is not a party to any agreement or understanding, written or oral, and is not subject to any restriction, which, in either case, could prevent the Executive from entering into this Agreement or performing all of the Executive’s duties and obligations hereunder. In addition, the Executive acknowledges that the Executive is aware of Section 304 (Forfeiture of Certain Bonuses and Profits) of the Sarbanes-Oxley Act of 2002 and the right of the Company thereunder to be reimbursed for certain payments to the Executive in compliance therewith.

22. TAX MATTERS.

(a) WITHHOLDING. The Company may withhold from any and all amounts payable under this Agreement or otherwise such federal, state and local taxes as may be required to be withheld pursuant to any applicable law or regulation.

(b) SECTION 409A COMPLIANCE. Notwithstanding anything in this Agreement to the contrary, this Section 22(b) shall control with respect to any payment or benefit payable hereunder that is subject to Section 409A of the Code.

(i) Compliance with Section 409A. The intent of the parties is that payments and benefits under this Agreement comply with (or qualify for an exemption from) Section 409A of the Code and the regulations and guidance promulgated thereunder (collectively, “Section 409A”) and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted accordingly. To the extent that any provision hereof is modified in order to comply with Section 409A, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to the Executive and the Company of the applicable provision without violating the provisions of Section 409A.

(ii) Termination of Employment. A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of “deferred compensation” (as such term is defined in Section 409A) upon or following termination of employment unless such termination of employment is also a “separation from service” from the Company within the meaning of Section 409A and Treasury Regulation 1.409A-1(h) and, for purposes of any such provision of this Agreement, references to a “termination of employment” or any similar term or phrase shall mean “separation from service.”

(iii) Separate Payments. For purposes of Section 409A, the Executive’s right to receive any installment payments pursuant to this Agreement shall be treated as a right to receive a series of separate and distinct payments. Whenever a payment under this Agreement specifies a payment period with reference to a number of days, the actual date of payment within the specified period shall be within the sole discretion of the Company.

(iv) Specified Employee. Notwithstanding anything to the contrary in this Agreement, if the Executive is deemed on the termination date to be a “specified employee” within the meaning of that term under Section 409A(a)(2)(B) of the Code, then with regard to any payment or the provision of any benefit that is considered deferred compensation under Section 409A payable on account of a “separation from service,” such payment or benefit shall not be made or provided until the date which is the earlier of (A) the expiration of the six (6)-month period measured from the date of such “separation from service”, and (B) the date of the Executive’s death, to the extent required under Section 409A. Upon the expiration of the foregoing delay period, all payments and benefits delayed pursuant to this subsection (iv) (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid or reimbursed to the Executive in a lump sum, and any remaining payments and benefits due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein.

(v) No Acceleration; Executive Action/Timing of Payments. For purposes of Section 409A, (A) the Executive may not, directly or indirectly, designate the calendar year of any payment; (B) no acceleration of the time and form of payment of any nonqualified deferred compensation to the Executive or any portion thereof, shall be permitted; and (C) any payment to be made after receipt of an executed and irrevocable release within any specified period, in which such period begins in one taxable year of the Executive and ends in a second taxable year of the Executive, will be made in the second taxable year.

(vi) Offsets. Notwithstanding any other provision herein to the contrary, in no event shall any payment under this Agreement that constitutes “deferred compensation” for purposes of Section 409A be subject to offset by any other amount unless otherwise permitted by Section 409A.

(vii) Reimbursements. To the extent that any right to reimbursement of expenses or payment of any benefit in-kind under this Agreement may constitute nonqualified deferred compensation (within the meaning of Section 409A), (A) any such expense reimbursement shall be made by the Company no later than the last day of the taxable year following the taxable year in which such expense was incurred by the Executive, (B) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, and (C) the amount of expenses eligible for reimbursement or in-kind benefits provided during any taxable year shall not affect the expenses eligible for reimbursement or in-kind benefits to be provided in any other taxable year.

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

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

BROAD STREET REALTY, INC.

By: /s/ Alexander Topchy

Name: Alexander Topchy

Title: Chief Financial Officer

BROAD STREET OPERATING PARTNERSHIP, LP

By: BROAD STREET OP GP LLC, its general partner

By: BROAD STREET REALTY, INC., its sole member

By: /s/ Alexander Topchy

Name: Alexander Topchy

Title: Chief Financial Officer

EXECUTIVE

/s/ Michael Z. Jacoby

EXHIBIT A

GENERAL RELEASE

I, __________________, in consideration of and subject to the performance by Broad Street Realty, Inc., a Delaware corporation (“BSR”), and Broad Street Operating Partnership, LP, a Delaware limited partnership (the “Operating Partnership” and, together with BSR, the “Company”), of its obligations under the Employment Agreement dated as of ______________, 2019 (the “Agreement”), including, without limitation, all payment obligations required thereunder, do hereby release and forever discharge as of the date hereof the Company and its affiliates and all present, former and future managers, directors, officers, employees, attorneys, advisors, successors and assigns of the Company and its affiliates and direct or indirect owners (collectively, the “Released Parties”) to the extent provided below (this “General Release”). The Released Parties are intended to be third-party beneficiaries of this General Release, and this General Release may be enforced by each of them in accordance with the terms hereof in respect of the rights granted to the Released Parties hereunder. Terms used herein but not otherwise defined shall have the meanings given to them in the Agreement.

1. I understand that the [Disability Payments] [Severance Benefits] represent, in part, consideration for signing this General Release and are not salary, wages or benefits to which I was already entitled. I understand and agree that I will not receive the [Disability Payments] [Severance Benefits] unless I execute this General Release and do not revoke this General Release within the time period permitted hereafter. The [Disability Payments] [Severance Benefits] will not be considered compensation for purposes of any employee benefit plan, program, policy or arrangement maintained or hereafter established by the Company or its affiliates.

2. Except as provided in paragraphs 4 and 5 below and except for the provisions of the Agreement which expressly survive the termination of my employment with the Company, I knowingly and voluntarily (for myself, my heirs, executors, administrators and assigns) release and forever discharge the Company and the other Released Parties from any and all claims, suits, controversies, actions, causes of action, cross-claims, counter claims, demands, debts, compensatory damages, liquidated damages, punitive or exemplary damages, other damages, claims for costs and attorneys’ fees, or liabilities of any nature whatsoever in law and in equity, both past and present (through the date that this General Release becomes effective and enforceable) and whether known or unknown, suspected, or claimed against the Company or any of the Released Parties which I, my spouse, or any of my heirs, executors, administrators or assigns, may have, which arise out of or are connected with my employment with, or my separation or termination from, the Company (including, but not limited to, any allegation, claim or violation, arising under: Title VII of the Civil Rights Act of 1964, as amended; the Civil Rights Act of 1991; the Age Discrimination in Employment Act of 1967, as amended (including the Older Workers Benefit Protection Act); the Equal Pay Act of 1963, as amended; the Americans with Disabilities Act of 1990; the Family and Medical Leave Act of 1993; the Worker Adjustment Retraining and Notification Act; the Employee Retirement Income Security Act of 1974; any applicable Executive Order Programs; the Fair Labor Standards Act; or their state or local counterparts; or under any other federal, state or local civil or human rights law, or under any other local, state, or federal law, regulation or ordinance; or under any public policy, contract or tort, or under common law; or arising under any policies, practices or procedures of the Company; or any claim for wrongful discharge, breach of contract, infliction of emotional distress, defamation; or any claim for costs, fees, or other expenses, including attorneys’ fees incurred in these matters) (all of the foregoing collectively referred to herein as the “Claims”).

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3. I represent that I have made no assignment or transfer of any right, claim, demand, cause of action or other matters covered by paragraph 2 above.

4. I agree that this General Release does not waive or release any rights or claims that I may have under the Age Discrimination in Employment Act of 1967 which arise after the date I execute this General Release. I acknowledge and agree that my separation from employment with the Company in compliance with the terms of the Agreement shall not serve as the basis for any claim or action (including, without limitation, any claim under the Age Discrimination in Employment Act of 1967).

5. I agree that I hereby waive all rights to sue or obtain equitable, remedial or punitive relief from any or all Released Parties of any kind whatsoever in respect of any Claims, including, without limitation, reinstatement, back pay, front pay, and any form of injunctive relief. Notwithstanding the above, I further acknowledge that I am not waiving and am not being required to waive any right that cannot be waived under law, including the right to file an administrative charge or participate in an administrative investigation or proceeding; provided, however, that I disclaim and waive any right to share or participate in any monetary award resulting from the prosecution of such charge or investigation or proceeding. Additionally, I am not waiving (i) any right to the [Disability Payments] [Severance Benefits] or to the Accrued Benefits to which I am entitled under the Agreement, (ii) any claim relating to directors’ and officers’ liability insurance coverage or any right of indemnification under the Agreement or the Company’s organizational documents or otherwise, or (iii) my rights as an equity or security holder in the Company or its affiliates.

6. In signing this General Release, I acknowledge and intend that it shall be effective as a bar to each and every one of the Claims hereinabove waived or released. I expressly consent that this General Release shall be given full force and effect according to each and all of its express terms and provisions, including those relating to unknown and unsuspected Claims (notwithstanding any state or local statute that expressly limits the effectiveness of a general release of unknown, unsuspected and unanticipated Claims), if any, as well as those relating to any other Claims hereinabove mentioned or implied. I acknowledge and agree that this waiver is an essential and material term of this General Release and that without such waiver the Company would not have agreed to the terms of the Agreement. I further agree that in the event I should bring a Claim seeking damages against the Company, or in the event I should seek to recover against the Company in any Claim brought by a governmental agency on my behalf, this General Release shall serve as a complete defense to such Claims to the maximum extent permitted by law. I further agree that I am not aware of any pending claim of the type described in paragraph 2 above as of the execution of this General Release.

7. I agree that neither this General Release, nor the furnishing of the consideration for this General Release, shall be deemed or construed at any time to be an admission by the Company, any Released Party or myself of any improper or unlawful conduct.

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8. I agree that if I violate this General Release by suing the Company or the other Released Parties, I will pay all costs and expenses of defending against the suit incurred by the Released Parties, including reasonable attorneys’ fees.

9. I agree that this General Release and the Agreement are confidential and agree not to disclose any information regarding the terms of this General Release or the Agreement, except to my immediate family and any tax, legal or other counsel I have consulted regarding the meaning or effect hereof or as required by law, and I will instruct each of the foregoing not to disclose the same to anyone.

10. Any nondisclosure provision in this General Release does not prohibit or restrict me (or my attorney) from responding to any inquiry about this General Release or its underlying facts and circumstances by the Securities and Exchange Commission (SEC), the Financial Industry Regulatory Authority (FINRA), any other self-regulatory organization or any governmental entity. Moreover, notwithstanding any other provision of this Agreement: (A) I will not be held criminally or civilly liable under any federal or state trade secret law for any disclosure of a trade secret that is made: (1) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney, and solely for the purpose of reporting or investigating a suspected violation of law; or (2) in a complaint or other document that is filed under seal in a lawsuit or other proceeding and (B) if I file a lawsuit for retaliation by the Company for reporting a suspected violation of law, I may disclose the Company’s trade secrets to my attorney and use the trade secret information in the court proceeding if: (1) I file any document containing the trade secret under seal; and (2) I do not disclose the trade secret, except pursuant to court order.

11. I hereby acknowledge that Sections 8 through 13 and Sections 17 through 22 of the Agreement shall survive my execution of this General Release.

12. I represent that I am not aware of any claim by me other than the claims that are released by this General Release. I acknowledge that I may hereafter discover claims or facts in addition to or different than those which I now know or believe to exist with respect to the subject matter of the release set forth in paragraph 2 above and which, if known or suspected at the time of entering into this General Release, may have materially affected this General Release and my decision to enter into it.

13. Notwithstanding anything in this General Release to the contrary, this General Release shall not relinquish, diminish, or in any way affect any rights or claims arising out of any breach by the Company or by any Released Party of the Agreement after the date hereof.

14. Whenever possible, each provision of this General Release shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this General Release is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision or any other jurisdiction, but this General Release shall be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein.

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BY SIGNING THIS GENERAL RELEASE, I REPRESENT AND AGREE THAT:

I HAVE READ IT CAREFULLY;

I UNDERSTAND ALL OF ITS TERMS AND KNOW THAT I AM GIVING UP IMPORTANT RIGHTS, INCLUDING BUT NOT LIMITED TO, RIGHTS UNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967; TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, AS AMENDED; THE EQUAL PAY ACT OF 1963; THE AMERICANS WITH DISABILITIES ACT OF 1990; AND THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, EACH AS AMENDED;

I VOLUNTARILY CONSENT TO EVERYTHING IN IT;

I HAVE BEEN ADVISED TO CONSULT WITH AN ATTORNEY BEFORE EXECUTING IT AND I HAVE DONE SO OR, AFTER CAREFUL READING AND CONSIDERATION, I HAVE CHOSEN NOT TO DO SO OF MY OWN VOLITION;

I HAVE HAD AT LEAST [21][45] DAYS FROM THE DATE OF MY RECEIPT OF THIS RELEASE TO CONSIDER IT, AND THE CHANGES MADE SINCE MY RECEIPT OF THIS RELEASE ARE NOT MATERIAL OR WERE MADE AT MY REQUEST AND WILL NOT RESTART THE REQUIRED [21][45] DAY PERIOD;

I UNDERSTAND THAT I HAVE SEVEN (7) DAYS AFTER THE EXECUTION OF THIS RELEASE TO REVOKE IT AND THAT THIS RELEASE SHALL NOT BECOME EFFECTIVE OR ENFORCEABLE UNTIL THE REVOCATION PERIOD HAS EXPIRED;

I HAVE SIGNED THIS GENERAL RELEASE KNOWINGLY AND VOLUNTARILY AND WITH THE ADVICE OF ANY COUNSEL RETAINED TO ADVISE ME WITH RESPECT TO IT; AND

I AGREE THAT THE PROVISIONS OF THIS GENERAL RELEASE MAY NOT BE AMENDED, WAIVED, CHANGED OR MODIFIED EXCEPT BY AN INSTRUMENT IN WRITING SIGNED BY AN AUTHORIZED REPRESENTATIVE OF THE COMPANY AND BY ME.

SIGNED:	DATED:

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Exhibit 10.16

Execution Version

BROAD STREET REALTY, INC.
EMPLOYMENT AGREEMENT

W I T N E S S E T H

1. POSITION AND DUTIES.

(a) During the Employment Term (as defined in Section 2), the Executive shall serve as the Chief Financial Officer of the Company. In this capacity, the Executive shall have the duties, authorities and responsibilities as are required by the Executive’s position commensurate with the duties, authorities and responsibilities of persons in similar capacities in similarly sized companies, and such other duties, authorities and responsibilities as may reasonably be assigned to the Executive as the Board of Directors of BSR (the “Board”) shall designate from time to time that are not inconsistent with the Executive’s position with the Company and that are consistent with the bylaws of BSR and the first amended and restated agreement of limited partnership of the Operating Partnership, as they may be further amended from time to time, including, but not limited to, managing the affairs of the Company. The Executive’s principal place of employment with the Company shall be in Bethesda, Maryland; provided that the Executive understands and agrees that the Executive may be required to travel from time to time for business purposes. The Executive shall report directly to the Chief Executive Officer of the Company.

3. BASE SALARY. The Company agrees to pay the Executive a base salary at the annual rate of $215,000, payable in accordance with the regular payroll practices of the Company, but not less frequently than monthly. The Base Salary shall be subject to review by the Compensation Committee (the “Compensation Committee”) of the Board from time to time, and may be increased (but not decreased) by the Compensation Committee in its sole discretion (such base salary, as may be adjusted from time to time by the Compensation Committee, the “Base Salary”).

4. ANNUAL BONUS. During each fiscal year during the Employment Term, the Executive shall be eligible to receive an annual bonus (the “Annual Bonus”) with a “target” opportunity equal to 50% of the Base Salary. The “target” Annual Bonus opportunity shall be subject to review by the Compensation Committee from time to time, and may be increased (but not decreased) by the Compensation Committee in its sole discretion (such target opportunity, as determined by the Compensation Committee from time to time, the “Target Bonus”). Notwithstanding the foregoing, for each of the first two fiscal years during the Employment Term, the Annual Bonus that is paid to the Executive shall not exceed 25% of the Base Salary.

6. EMPLOYEE BENEFITS.

(a) BENEFIT PLANS. During the Employment Term, the Executive shall be entitled to participate in any employee benefit plans that the Company maintains or contributes to for the benefit of its employees generally, subject to satisfying the applicable eligibility requirements, except to the extent such plans are duplicative of the benefits otherwise provided hereunder. The Executive’s participation will be subject to the terms of the applicable plan documents and generally applicable Company policies. Notwithstanding the foregoing, the Company may modify or terminate any employee benefit plan at any time, according to the terms of such employee benefit plan.

7. TERMINATION. The Executive’s employment and the Employment Term shall terminate on the first of the following to occur:

(b) DEATH. Automatically upon the date of death of the Executive.

(c) CAUSE. Upon termination of the Executive’s employment by the Company for Cause. “Cause” shall mean the Executive’s:

(d) WITHOUT CAUSE. Upon termination by the Company of the Executive’s employment without Cause (other than for Disability).

(i) a material reduction in the Base Salary or Target Bonus;

(iii) a change to the Executive’s principal work location that is greater than fifty (50) miles;

(iv) a material adverse change in the reporting structure applicable to the Executive; or

(v) the Company’s material breach of the terms of this Agreement.

8. CONSEQUENCES OF TERMINATION.

(i) any unpaid Base Salary through the termination date;

(ii) any accrued but unused vacation time in accordance with Company policy; and

(i) any earned but unpaid Annual Bonus relating to the year prior to the year of termination; and

(i) any earned but unpaid Annual Bonus relating to the year prior to the year of termination;

(ii) an amount equal to two (2) times the sum of (A) the Base Salary in effect on the termination date and (B) the average Annual Bonus earned by the Executive for the two (2) Company fiscal years ending during the Employment Period and immediately preceding the Company fiscal year in which such termination occurs (regardless of whether such amount was paid out on a current basis or deferred), paid monthly in equal installments for a period of twelve (12) months and, subject to Section 22, beginning sixty (60) days following such termination;

10. RESTRICTIVE COVENANTS.

(k) EMPLOYEE PROTECTIONS.

If to the Executive:

At the address (or to the facsimile number) shown

in the books and records of the Company.

If to the Company:

Broad Street Realty, Inc.

7250 Woodmont Ave #350

Bethesda, Maryland 20814

Attention: Chief Executive Officer

or to such other address as either party may have furnished to the other in writing in accordance herewith, except that notices of change of address shall be effective only upon receipt.

16. COUNTERPARTS. This Agreement may be executed in several counterparts, each of which shall be deemed to be an original but all of which together will constitute one and the same instrument.

22. TAX MATTERS.

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

BROAD STREET REALTY, INC.

By: /s/ Michael Z. Jacoby

Name: Michael Z. Jacoby

Title: Chief Executive Officer

BROAD STREET OPERATING PARTNERSHIP, LP

By: BROAD STREET OP GP LLC, its general partner

By: BROAD STREET REALTY, INC., its sole member

By: /s/ Michael Z. Jacoby

Name: Michael Z. Jacoby

Title: Chief Executive Officer

ALEXANDER TOPCHY

/s/ Alexander Topchy

EXHIBIT A

GENERAL RELEASE

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3. I represent that I have made no assignment or transfer of any right, claim, demand, cause of action or other matters covered by paragraph 2 above.

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11. I hereby acknowledge that Sections 8 through 13 and Sections 17 through 22 of the Agreement shall survive my execution of this General Release.

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BY SIGNING THIS GENERAL RELEASE, I REPRESENT AND AGREE THAT:

I HAVE READ IT CAREFULLY;

I VOLUNTARILY CONSENT TO EVERYTHING IN IT;

I HAVE BEEN ADVISED TO CONSULT WITH AN ATTORNEY BEFORE EXECUTING IT AND I HAVE DONE SO OR, AFTER CAREFUL READING AND CONSIDERATION, I HAVE CHOSEN NOT TO DO SO OF MY OWN VOLITION;

I UNDERSTAND THAT I HAVE SEVEN (7) DAYS AFTER THE EXECUTION OF THIS RELEASE TO REVOKE IT AND THAT THIS RELEASE SHALL NOT BECOME EFFECTIVE OR ENFORCEABLE UNTIL THE REVOCATION PERIOD HAS EXPIRED;

I HAVE SIGNED THIS GENERAL RELEASE KNOWINGLY AND VOLUNTARILY AND WITH THE ADVICE OF ANY COUNSEL RETAINED TO ADVISE ME WITH RESPECT TO IT; AND

I AGREE THAT THE PROVISIONS OF THIS GENERAL RELEASE MAY NOT BE AMENDED, WAIVED, CHANGED OR MODIFIED EXCEPT BY AN INSTRUMENT IN WRITING SIGNED BY AN AUTHORIZED REPRESENTATIVE OF THE COMPANY AND BY ME.

SIGNED:	DATED:

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Exhibit 10.17

FORM OF INDEMNIFICATION AGREEMENT

This Indemnification Agreement (“Agreement”) by and between Broad Street Realty, Inc., a Delaware corporation (“Broad Street”), and [ ] (“Indemnitee”) is entered into as of , 20 (the “Effective Date”).

Recitals

A. Broad Street believes it is essential to retain and attract qualified directors and officers.

B. Indemnitee has agreed to serve, or to continue to serve, as a member of the Broad Street Board of Directors (“Board”), a director of a Broad Street affiliate, or an officer of Broad Street or an affiliate of Broad Street.

C. Both Broad Street and Indemnitee recognize the increased risk of litigation and other claims being asserted against directors and officers of public companies.

D. Broad Street’s Restated Certificate of Incorporation, as amended (the “Certificate”), and Broad Street’s Amended and Restated Bylaws (the “Bylaws”) require Broad Street to indemnify and advance expenses to its directors and officers to the fullest extent permitted by Delaware General Corporation Law, as amended (the “Code”).

E. Indemnitee, in agreeing to serve, or continue to serve, as a director or an officer of Broad Street, is in part doing so in reliance on the indemnification provisions of the Certificate and the Bylaws.

F. In recognition of Indemnitee’s need for (1) substantial protection against personal liability based on Indemnitee’s reliance on the Certificate, the Bylaws and the rights afforded under this Agreement, and (2) an inducement to provide effective services to Broad Street or an affiliate of Broad Street as a director or officer, Broad Street wishes to provide for the indemnification of Indemnitee and to advance expenses to Indemnitee to the fullest extent permitted by law, subject to certain exceptions contained in this Agreement, and, to the extent insurance is maintained by Broad Street, to provide for the continued coverage of Indemnitee under Broad Street’s directors’ and officers’ liability insurance policies.

Agreement

NOW, THEREFORE, in consideration of the mutual covenants and promises contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is acknowledged, the parties, intending to be legally bound, agree as follows:

1.	CERTAIN DEFINITIONS.

1.1.

“Change in Control” means the occurrence of any of the following events:

(a) Any “person” as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as now in effect or as hereafter amended (the “Exchange Act”) (other than Broad Street, any trustee or other fiduciary holding securities under any employee benefit plan of Broad Street or any corporation owned, directly or indirectly, by the stockholders of Broad Street in substantially the same proportion as their ownership of stock of Broad Street), is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of Broad Street representing 50% or more of the combined voting power of Broad Street’s then outstanding Voting Securities;

(b) During any period of twelve (12) consecutive months, individuals who at the beginning of such period constitute the Board, and any new director (other than a director designated by a person who has entered into an agreement with Broad Street to effect a transaction described in clause (a), (c) or (d) hereof) whose election by the Board or nomination for election by Broad Street’s stockholders was approved by a vote of at least a majority of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute at least a majority thereof, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or actual threatened solicitation of proxies or consents by or on behalf of a person other than the Board;

(c) The consummation of a merger or consolidation of Broad Street with any other entity or the issuance of Voting Securities in connection with a merger or consolidation of Broad Street (or any direct or indirect subsidiary thereof) pursuant to applicable exchange requirements, other than (A) a merger or consolidation which would result in the Voting Securities of Broad Street outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving or parent entity) at least 50.1% of the combined voting power of the Voting Securities of Broad Street or such surviving or parent entity outstanding immediately after such merger or consolidation or (B) a merger or consolidation effected to implement a recapitalization of Broad Street (or similar transaction) in which no “person” (as defined in clause (a) above) is or becomes the beneficial owner, directly or indirectly, of securities of Broad Street representing 50% or more of either of the then outstanding shares of common stock of Broad Street, or the combined voting power of Broad Street’s then outstanding Voting Securities; or

(d) The consummation of a sale or disposition by Broad Street of all or substantially all of Broad Street’s assets (or any transaction or series of transactions within a period of twelve (12) months ending on the date of the last sale or disposition having a similar effect).

1.2. “Expenses” will be broadly construed and will include, without limitation, all direct and indirect costs of any type or nature whatsoever (including, without limitation, judgments, fines or penalties and all attorneys’, witness, or other professional fees and related disbursements, and other out-of-pocket costs of whatever nature), actually and reasonably incurred by Indemnitee in connection with the investigation, defense or appeal of a Proceeding, participation in a Proceeding as a witness or establishing or enforcing a right to indemnification under this Agreement, the Code or otherwise, and amounts paid in settlement by or on behalf of Indemnitee, but will not include any judgments, fines or penalties actually levied against Indemnitee for such individual’s violations of law.

1.3. “Independent Legal Counsel” means an attorney or firm of attorneys, selected in accordance with the provisions of Section 5, who have not otherwise performed services for Broad Street (or for any entity that as of the time of selection of the attorney or firm of attorneys is controlled by, controlling or under common control with Broad Street) or Indemnitee within the last three years (other than with respect to matters concerning the rights of Indemnitee under this Agreement, or of other indemnitees under similar indemnity agreements).

1.4. “Proceeding” means and includes, without limitation, any threatened, pending, or completed action, suit, arbitration, alternate dispute resolution mechanism, investigation, inquiry, administrative hearing, whether brought in the right of or by Broad Street or otherwise and whether of a civil, criminal, administrative or investigative nature, and whether formal or informal in any case, in which Indemnitee was, is or will be involved as a party or otherwise by reason of the fact that:

(a) Indemnitee is or was a director, officer, employee or agent of Broad Street;

(b) Indemnitee took an action while acting as a director, officer, employee or agent of Broad Street; or

(c) Indemnitee is or was serving at the request of Broad Street as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, including as a deemed fiduciary thereto, and in any such case described above, whether or not serving in any such capacity at the time any Expense is incurred for which indemnification, reimbursement, or advancement of Expenses may be provided under this Agreement.

For the avoidance of doubt, an action by Indemnitee to enforce Indemnitee’s rights to indemnification under this Agreement will be a “Proceeding” for purposes of this Agreement.

1.5. “Voting Securities” means any securities of Broad Street which vote generally in the election of directors.

2.	SERVICES TO BROAD STREET.

Indemnitee will serve, at the will of Broad Street or under separate contract, if any such contract exists, as a director or officer of Broad Street or of an affiliate of Broad Street (including, but not limited to, any employee benefit plan of Broad Street) faithfully and to the best of Indemnitee’s ability so long as Indemnitee: (a) remains an officer or director of Broad Street or an affiliate of Broad Street; and (b) if an employee of Broad Street or an affiliate of Broad Street, remains employed by Broad Street or such affiliate. Indemnitee may at any time and for any reason resign from such position (subject to any contractual obligation that Indemnitee may be subject to apart from this Agreement), and Broad Street or any affiliate of Broad Street will have no obligation under this Agreement to continue Indemnitee in any such position.

3.	INDEMNITY OF INDEMNITEE.

Broad Street will hold harmless and indemnify Indemnitee to the fullest extent authorized or permitted by the Code, as the same may be amended from time to time (but only to the extent that such amendment permits Broad Street to provide broader indemnification rights than the Bylaws, the Certificate or the Code permitted prior to adoption of such amendment). These obligations and the other obligations of Broad Street in this Agreement apply regardless of whether the conduct giving rise to the obligations occurred before or occur after the date this Agreement is executed. Notwithstanding any other provision of this Agreement, to the extent that Indemnitee has been successful on the merits or otherwise in defense of any Proceeding or in defense of any issue or matter therein, Indemnitee will be indemnified against all Expenses incurred in connection therewith. For these purposes, Indemnitee will be deemed to have been “successful on the merits” upon termination of any Proceeding or of any claim, issue or matter therein, by the winning of a motion to dismiss (with or without prejudice), motion for summary judgment, or settlement (with or without court approval).

4.	PARTIAL INDEMNIFICATION.

Indemnitee will be entitled under this Agreement to indemnification by Broad Street for a portion of the Expenses that Indemnitee becomes legally obligated to pay in connection with any Proceeding even if not entitled hereunder to indemnification for the total amount thereof, and Broad Street will indemnify Indemnitee for the portion thereof to which Indemnitee is entitled.

5.	DETERMINATION OF ENTITLEMENT; CHANGE IN CONTROL.

(a) If there is a Change in Control of Broad Street then, with respect to all matters thereafter arising concerning the rights of Indemnitee to indemnification (including, but not limited to, any right to advancement of Expenses) under this Agreement, any other agreement with Broad Street providing for indemnification, the Certificate, the Bylaws and applicable law (collectively, the “Indemnification Provisions”) as now or hereafter in effect, Independent Legal Counsel may be selected by Indemnitee and approved by Broad Street (which approval will not be unreasonably withheld or delayed). Such Independent Legal Counsel will render its written opinion within 90 days to Broad Street and Indemnitee as to whether and to what extent Indemnitee would be permitted to be indemnified under the Indemnification Provisions before and after the completion of the Change in Control and such opinion will be binding upon Broad Street and Indemnitee. Broad Street will pay the reasonable fees and expenses of the Independent Legal Counsel referred to above and will fully indemnify such counsel against any and all Expenses arising out of or relating to this Agreement or its engagement under this Agreement.

(b) In making any determination concerning Indemnitee’s right to indemnification, there will be a presumption that Indemnitee has satisfied the applicable standard of conduct, and Broad Street may overcome such presumption only by its adducing clear and convincing evidence to the contrary. Any determination by Broad Street (including without limitation by its directors or its stockholders) concerning Indemnitee’s right to indemnification that is adverse to Indemnitee may be challenged by Indemnitee in the Court of Chancery of the State of Delaware. No determination by Broad Street (including without limitation by its directors or its stockholders) that Indemnitee has not satisfied any applicable standard of conduct will be a defense to any claim by Indemnitee for indemnification or reimbursement or advance payment of Expenses by Broad Street hereunder or create a presumption that Indemnitee has not met any applicable standard of conduct.

(c) If the person or persons so empowered to make a determination under Section 5(b) fail to make the requested determination within ninety (90) days after any judgment, order, settlement, dismissal, arbitration award, conviction, acceptance of a plea of nolo contendere or its equivalent, or other disposition or partial disposition of any Proceeding or any other event that could enable Broad Street to determine Indemnitee’s entitlement to indemnification, the requisite determination that Indemnitee is entitled to indemnification will be deemed to have been made.

6.	NOTIFICATION AND DEFENSE OF CLAIM.

As promptly as practicable, but in any event not later than thirty (30) days after receipt by Indemnitee of notice of the commencement of any Proceeding, Indemnitee will, if a claim in respect thereof is to be made against Broad Street under this Agreement, notify Broad Street of the commencement thereof, provided that the failure so to notify Broad Street will not relieve Broad Street from any liability which it may have to Indemnitee under this Agreement or otherwise. With respect to any such Proceeding as to which Indemnitee notifies Broad Street of the commencement thereof:

(a) Broad Street will be entitled to participate in the Proceeding at its own expense;

(b) except as otherwise provided below, Broad Street may, at its option and jointly with any other indemnifying party similarly notified and electing to assume such defense, assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. After notice from Broad Street to Indemnitee of its election to assume the defense thereof, Broad Street will not be liable to Indemnitee under this Agreement for any Expenses subsequently incurred by Indemnitee in connection with the defense thereof except for reasonable costs of investigation or otherwise as provided below. Indemnitee will have the right to employ separate counsel in such Proceeding but the Expenses of such counsel incurred after notice from Broad Street of its assumption of the defense thereof will be at the expense of Indemnitee; provided, however, that the Expenses of Indemnitee’s separate counsel will be borne by Broad Street if (i) the employment of separate counsel by Indemnitee has been authorized by Broad Street and Broad Street has agreed in writing to bear such Expenses, (ii) Indemnitee reasonably will have concluded that there may be a conflict of interest between Broad Street and Indemnitee in the conduct of the defense of such Proceeding, or (iii) Broad Street in fact will not have employed counsel to assume the defense of such Proceeding or will at any time have ceased to actively pursue the defense thereof. Broad Street will not be entitled to assume the defense of any Proceeding brought by or on behalf of Broad Street or as to which Indemnitee will have made the conclusion provided for in clause (ii) above; and

(c) Broad Street will not be liable to indemnify Indemnitee under this Agreement for any amounts paid in settlement of any Proceeding effected without its written consent, which will not be unreasonably withheld or delayed. Broad Street will be permitted to settle any Proceeding except that it will not settle any Proceeding in any manner that would impose any penalty or limitation on Indemnitee without Indemnitee’s written consent, which may be given or withheld in Indemnitee’s sole discretion.

7.	EXPENSES.

Promptly following a request by Indemnitee for the advancement of Expenses, Broad Street will advance, prior to the final disposition of any Proceeding, all Expenses incurred by Indemnitee in connection with such Proceeding (through the final disposition of any such Proceeding from which all rights of appeal have either been exhausted or have lapsed). Indemnitee will qualify for advances upon the execution and delivery to Broad Street of this Agreement, which will constitute an undertaking providing that Indemnitee undertakes to the fullest extent permitted by law to repay the advance (without interest) if and to the extent that Indemnitee is ultimately determined by a court of competent jurisdiction in a final judgment, not subject to appeal, that Indemnitee is not entitled to be indemnified by Broad Street. No other form of undertaking will be required other than the execution of this Agreement. Any advances and undertakings to repay under this Section will be unsecured and interest free. Prior to an ultimate determination by a court of competent jurisdiction in a final judgment, not subject to appeal, that Indemnitee is not entitled to be indemnified by Broad Street, Broad Street may not refuse to advance Expenses to Indemnitee under this Agreement on the grounds that Indemnitee has not satisfied any applicable standard of conduct or is not ultimately entitled to be indemnified, held harmless or exonerated under the other provisions of this Agreement. Advances will be made without regard to Indemnitee’s ability to repay. Such advances are intended to be an obligation of Broad Street to Indemnitee hereunder and will in no event be deemed to be a personal loan. Without limiting the generality or effect of the foregoing, within thirty days after any request by Indemnitee, Broad Street will, in accordance with such request (but without duplication), (a) pay such Expenses on behalf of Indemnitee, (b) advance to Indemnitee funds in an amount sufficient to pay such Expenses, or (c) reimburse Indemnitee for such Expenses.

8.	ENFORCEMENT.

Any right to indemnification or advances granted by this Agreement to Indemnitee will be enforceable by or on behalf of Indemnitee in any court of competent jurisdiction if (a) the claim for indemnification or advances is denied, in whole or in part, or (b) no disposition of such claim is made within ninety (90) days of request therefor. Indemnitee, in such enforcement action, if successful in whole or in part, also will be entitled to be paid the Expense of prosecuting Indemnitee’s claim. Neither the failure of Broad Street (including its Board of Directors or its stockholders) to have made a determination prior to the commencement of such enforcement action that indemnification of Indemnitee is proper in the circumstances, nor an actual determination by Broad Street (including its Board of Directors or its stockholders) that such indemnification is improper will be a defense to the action or create a presumption that Indemnitee is not entitled to indemnification under this Agreement or otherwise.

9.	INSURANCE.

(a) Unless otherwise approved by the Board of Directors prior to a Change in Control, Broad Street will obtain and maintain during the term of this Agreement directors’ and officers’ liability insurance (“D&O Insurance”) with respect to which Indemnitee will be named as an insured. Notwithstanding any other provision of this Agreement, Broad Street will not be obligated to indemnify Indemnitee for Expenses that have been previously paid directly to Indemnitee by D&O Insurance; but payment made to Indemnitee under an insurance policy purchased and maintained by Indemnitee at Indemnitee’s own expense of any amounts otherwise indemnifiable or obligated to be made under this Agreement will not reduce Broad Street’s obligations to Indemnitee under this Agreement, except to the extent of the amounts actually recovered by the Indemnitee from the personal insurance policy that the Indemnitee does not otherwise repay or reimburse on the terms of such insurance policy. If Broad Street has D&O Insurance in effect at the time Broad Street receives from Indemnitee any notice of the commencement of a Proceeding, Broad Street will give prompt notice of the commencement of such Proceeding to the insurers in accordance with the procedures set forth in the policy. Broad Street will thereafter take all reasonably necessary action to cause such insurers to pay, on behalf of Indemnitee, all amounts payable as a result of such Proceeding in accordance with the terms of such policy.

(b) In the event that (i) the D&O Insurance policy is renewed but the renewed policy does not provide for prior act’s coverage, (ii) Broad Street obtains a new D&O Insurance policy for any period following the termination of the prior D&O Insurance, and such new D&O Insurance policy does not provide for prior act’s coverage, or (iii) Broad Street does not renew the D&O Insurance policy or obtain a new D&O Insurance policy following the termination of a D&O Insurance policy, then unless otherwise determined by the Board of Directors, Broad Street will add to the D&O Insurance policy or the applicable successor D&O Insurance policy a run-off endorsement (the “Endorsement”) on the existing D&O Insurance policy (and in the case of (iii) above, do so prior to the termination of the existing D&O Insurance policy if necessary) or the applicable successor D&O Insurance policy subject to the same terms and conditions in all material respects. Unless otherwise approved by the Board of Directors prior to the date on which the Endorsement is obtained, the Endorsement will be non-cancelable and will provide for at least a six-year extended coverage period for any and all claims covered under the D&O Insurance policy. Broad Street will pay all premiums, commissions and other costs or charges incurred in obtaining the Endorsement.

(c) In the event of a Change of Control (other than, at the discretion of a majority of the Board) or Broad Street’s becoming insolvent, Broad Street will maintain in force any and all insurance policies then maintained by Broad Street in providing insurance—directors’ and officers’ liability, fiduciary, employment practices or otherwise—in respect of the individual directors and officers of Broad Street and its affiliates, or will replace all such policies with insurance coverage substantially comparable in scope and amount as the expiring policies, in each case for a fixed period of six years thereafter.

10.

SUBROGATION.

In the event of payment under this Agreement, Broad Street will be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who will execute all documents required and will do all acts that may be reasonably necessary to secure such rights, including the execution of such documents necessary to enable Broad Street effectively to bring suit to enforce such rights.

Broad Street’s obligation to indemnify, hold harmless, exonerate or advance Expenses hereunder to Indemnitee who is or was serving at the request of Broad Street as a director, officer, trustee, partner, managing member, fiduciary, employee or agent of any other enterprise will be reduced by any amount Indemnitee has actually received as indemnification, hold harmless or exoneration payments or advancement of expenses from such enterprise. Notwithstanding any other provision of this Agreement to the contrary, (i) Indemnitee will have no obligation to reduce, offset, allocate, pursue or apportion any indemnification, hold harmless, exoneration, advancement, contribution or insurance coverage among multiple parties possessing such duties to Indemnitee prior to Broad Street’s satisfaction and performance of all its obligations under this Agreement, and (ii) Broad Street will perform fully its obligations under this Agreement without regard to whether Indemnitee holds, may pursue or has pursued any indemnification, advancement, hold harmless, exoneration, contribution or insurance coverage rights against any person or entity other than Broad Street.

11.

CONTRIBUTION.

To the fullest extent permissible under applicable law, if the indemnification provided for in this Agreement is unavailable to the Indemnitee, Broad Street, in lieu of indemnifying the Indemnitee, will contribute to Indemnitee’s Expenses in connection with any claim relating to any Proceeding, in such proportion as is deemed fair and reasonable in light of all of the circumstances of such proceeding in order to reflect:

(a) the relative benefits received by Broad Street and Indemnitee as a result of the events and transactions giving rise to such Proceeding; and

(b) the relative fault of Indemnitee and Broad Street (and its other directors, officers, employees and agents) in connection with the circumstances, events or transactions that gave rise to the Proceeding.

12.

NON-EXCLUSIVITY AND SURVIVAL OF RIGHTS.

(a) All agreements and obligations of Broad Street contained in this Agreement will continue during the period Indemnitee is a director, officer, employee or other agent of Broad Street (or is or was serving at the request of Broad Street as a director, officer, employee or other agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise) and will continue thereafter so long as Indemnitee will be subject to any possible Proceeding. The benefits hereunder will inure to the benefit of the heirs, executors and administrators and assigns of Indemnitee. The rights conferred on Indemnitee by this Agreement will not be exclusive of any other right Indemnitee may have or hereafter acquire under any statute, provision of the Certificate or the Bylaws, agreement, vote of stockholders or disinterested directors, or otherwise, both as to action in Indemnitee’s official capacity and as to action in another capacity while holding office.

(b) The obligations and duties of Broad Street to Indemnitee under this Agreement will be binding on Broad Street and its successors and assigns until terminated in accordance with its terms. Broad Street will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to Broad Street or to all or substantially all of the business or assets of Broad Street, expressly to assume and agree to perform this Agreement and to indemnify Indemnitee to the fullest extent permitted by law.

(c) No amendment, alteration or repeal of this Agreement or of any provision hereof will limit or restrict any right of Indemnitee under this Agreement in respect of any action taken or omitted by Indemnitee prior to such amendment, alteration or repeal. To the extent that a change in the Code, whether by statute or judicial decision, permits greater indemnification or advancement of Expenses than would be afforded currently under the Certificate, the Bylaws and this Agreement, it is the intent of the parties hereto that Indemnitee will enjoy by this Agreement the greater benefits so afforded by such change. No right or remedy conferred in this Agreement is intended to be exclusive of any other right or remedy, and every other right and remedy will be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, by Indemnitee will not prevent the concurrent assertion or employment of any other right or remedy by Indemnitee.

13.

SEVERABILITY.

Each of the provisions of this Agreement is a separate and distinct agreement and independent of the others, so that if any provision is held to be invalid for any reason, such invalidity or unenforceability will not affect the validity or enforceability of the other provisions. Furthermore, if this Agreement is invalidated in its entirety on any ground, then Broad Street nevertheless will indemnify Indemnitee to the fullest extent provided by the Certificate, the Bylaws, the Code or any other applicable law.

14.

GOVERNING LAW.

This Agreement will be governed exclusively by and construed according to the laws of the State of Delaware, as applied to contracts between Delaware residents entered into and to be performed entirely within Delaware.

15.

AMENDMENT, MODIFICATION, WAIVER AND TERMINATION.

No amendment, modification, termination or cancellation of this Agreement will be effective unless signed in writing by both parties hereto; provided, however, that Broad Street will have the right to amend, modify, terminate or replace this Agreement if Broad Street amends, modifies, terminates or replaces its form of Indemnification Agreement for directors, officers, employees and other agents of Broad Street; provided, further, that such amended or modified agreement or such new agreement does not diminish in any material respect the rights of Indemnitee hereunder. No waiver of any of the provisions of this Agreement will be deemed or will constitute a waiver of any other provision hereof (whether or not similar) nor will such waiver constitute a continuing waiver.

16.

ENTIRE AGREEMENT.

This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements, understandings and negotiations, written and oral, between the parties with respect to the subject matter of this Agreement; provided, however, that this Agreement is a supplement to and in furtherance of the Certificate, the Bylaws, the Code and any other applicable law, and will not be deemed a substitute therefore, nor to diminish or abrogate any rights of Indemnitee thereunder.

17.

MONETARY DAMAGES INSUFFICIENT / SPECIFIC PERFORMANCE.

The parties agree that a monetary remedy for breach of this Agreement may be inadequate, impracticable, and difficult to prove and that such breach may cause Indemnitee irreparable harm. Indemnitee may therefore enforce this Agreement by seeking injunctive relief and specific performance, without any necessity of showing actual damage or irreparable harm (since actual and irreparable harm will result if Broad Street does not specifically perform its obligations under this Agreement). Seeking injunctive relief or specific performance does not preclude Indemnitee from seeking or obtaining any other relief to which Indemnitee may be entitled. Indemnitee is entitled to specific performance and injunctive relief, including temporary restraining orders, preliminary injunctions and permanent injunctions, without the necessity of posting bonds or other undertakings in connection therewith. Broad Street acknowledges that in the absence of a waiver, a bond or undertaking may be required of Indemnitee by the applicable court, and Broad Street hereby waives any such requirement of a bond or undertaking.

18.

DETERMINATION OF GOOD FAITH/SAFE HARBOR.

For purposes of any determination of “good faith,” to the extent permitted under the Code, Indemnitee will be presumed to have acted in good faith if Indemnitee’s action is based on reliance on the records or books of account of Broad Street and its affiliates, including financial statements, or on information supplied to Indemnitee by the officers of Broad Street or its affiliates in the course of their duties, or on the advice of legal counsel for Broad Street or its affiliates or for the Board or counsel selected by any committee of the Board or on information or records given or reports made to Broad Street or its affiliates by an independent certified public accountant or by an appraiser, investment banker, compensation consultant, or other expert selected with reasonable care by Broad Street or its affiliates or by the Board or any committee of the Board. The provisions of this Section will not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed to have met the applicable standard of conduct. Whether or not the foregoing provisions of this Section are satisfied, it will in any event be presumed that Indemnitee has at all times acted in good faith and in a manner he or she reasonably believed to be in ,or not opposed to, the best interests of Broad Street.

19.

INTERPRETATION OF AGREEMENT.

It is understood that the parties hereto intend this Agreement to be interpreted and enforced so as to provide indemnification to Indemnitee to the fullest extent now or hereafter permitted by law.

20.

IDENTICAL COUNTERPARTS.

This Agreement may be executed in one or more counterparts, each of which will be deemed for all purposes to be an original but all of which together will constitute this Agreement.

21.

HEADINGS.

The headings of the Sections of this Agreement are inserted for convenience only and are not part of this Agreement or intended to affect the interpretation of this Agreement.

22.

NOTICES.

All notices, requests, demands, and other communications hereunder shall be in writing and shall be deemed to have been duly given if (i) delivered by hand and receipted for by the party to whom said notice or other communication shall have been directed, or (ii) mailed by certified or registered mail with postage prepaid, on the third business day after the date on which it is so mailed, if so delivered or mailed, as the case may be, to the following addresses:

If to the Indemnitee, to the address set forth in the records of Broad Street.

If to the Indemnitor, to:

Broad Street Realty, Inc.

7250 Woodmont Ave #350

Bethesda, Maryland 20814

Attention: Chief Executive Officer

with a copy (which shall not constitute notice) to:

Morrison & Foerster LLP

2000 Pennsylvania Avenue, N.W.

Suite 6000

Washington, D.C. 20006

Attention: David P. Slotkin

Phone: (202) 887-1554

Email: DSlotkin@mofo.com

or to such other address as may have been furnished to the Indemnitee by Broad Street or to Broad Street by the Indemnitee, as the case may be.

[Signatures on Next Page]

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

BROAD STREET REALTY, INC.

By:____________________________

Name:

Title:

INDEMNITEE:

[NAME]

_____________________________

Signature Page to Indemnification Agreement

Exhibit A

	Indemnitee		Date
	Michael Z. Jacoby		December 27, 2019
	Thomas M. Yockey		December 27, 2019
	Vineet P. Bedi		December 27, 2019
	Joseph C. Bencivenga		December 27, 2019
	Jeffrey H. Foster		December 27, 2019
	Daniel J.W. Neal		December 27, 2019
	Samuel M. Spiritos		December 27, 2019
	Alexander Topchy		December 27, 2019

Exhibit 16.1

December 27, 2019

Securities and Exchange Commission

100 F Street, N.E.

Washington, DC 20549

Commissioners:

We have read the statements made by Broad Street Realty, Inc. (formerly known as MedAmerica Properties, Inc.) under Item 4.01 of its Form 8-K dated December 27, 2019. We agree with the statements concerning our Firm in such Form 8-K; we are not in a position to agree or disagree with other statements of Broad street Realty, Inc. contained therein.

Very truly yours,

/s/ Marcum llp

Marcum llp

Exhibit 99.1

BROAD STREET REALTY, LLC AND MEDAMERICA PROPERTIES INC.

COMPLETE THE FIRST PHASE OF THE PREVIOUSLY ANNOUNCED MERGER TRANSACTIONS

MedAmerica Properties Inc. changes its name to Broad Street Realty, Inc.

BETHESDA, MD and BOCA RATON, FL, December 27, 2019 /PRNewswire/ — Broad Street Realty, LLC (“Broad Street”) and MedAmerica Properties Inc. (OTC: MAMP) today announced that they have completed the first phase of the previously announced mergers. As a result, MedAmerica, now known as Broad Street Realty, Inc., has become a fully integrated and self-managed publicly owned real estate company. With the closing of the initial mergers, the resulting company now owns nine primarily grocery-anchored neighborhood shopping center properties with over 865,000 square feet of gross leasable space in Maryland, Pennsylvania, Virginia and Washington, DC and succeeds to Broad Street’s operating platform, including its commercial brokerage, property management and development businesses. The combined company has approximately 50 employees and is headquartered in Bethesda, Maryland with additional offices in Denver, Colorado, Washington, D.C. and Manassas, Virginia.

As consideration for the initial mergers, prior investors in the Broad Street entities received an aggregate of 16,006,149 shares of MedAmerica’s common stock and an aggregate of 2,827,904 units of limited partnership interest (“OP units”) in its newly formed operating partnership, as well as an aggregate of $0.9 million in cash. As of the completion of the initial mergers, prior investors in the Broad Street entities collectively own approximately 87.0% of the shares of common stock and OP units of the combined company and previously existing MedAmerica shareholders own approximately 13.0%.

The new ticker symbol for the combined company’s common stock on the OTCQB market will be “BRST” effective December 30, 2019.

The combined company expects to close the remainder of the previously announced mergers with Broad Street entities over the next several months, subject to customary closing conditions, including obtaining consent of the requisite lenders. The additional mergers would result in the acquisition of an additional eight neighborhood shopping center properties with over 1.2 million square feet of gross leasable space in Maryland, Virginia and Colorado. Broad Street will continue to manage these properties prior to the completion of the additional mergers.

Commenting on the closing of the initial mergers, Gary O. Marino, MedAmerica’s Chairman, said, “Over the past several years, MedAmerica has reviewed and pursued numerous acquisition/merger opportunities. Broad Street represents a unique and exciting partner for MedAmerica. Not only does the Broad Street portfolio of shopping centers represent a collection of well-located, diversified neighborhood shopping center properties, the company also possesses strong continuing cash flow and equity value. Broad Street is managed by a seasoned team of professionals led by Michael Z. Jacoby, Broad Street’s CEO who has more than 30 years of experience in the commercial real estate industry.”

Michael Z. Jacoby, who will serve as Chairman of the Board of Directors and as Chief Executive Officer of the combined company, said, “We are very pleased to announce the merger of our organization with MedAmerica. This is the next step in the pursuit of accomplishing our long-terms goals on behalf of our partners, employees and shareholders. We believe the public platform gives us a lot more tools and flexibility to pursue future growth opportunities and acquisitions.”

In connection with the closing of the initial mergers, certain subsidiaries of the combined company entered into a loan agreement with a subsidiary of a real estate fund managed by Basis Management Group, LLC, which provides for a loan of up to $66.9 million, of which $63.8 million was drawn at closing. The loan is secured by mortgages on six of the properties acquired in the initial mergers. In addition, another subsidiary of a real estate fund managed by Basis Management Group, LLC committed to invest up to $10.7 million in a newly formed subsidiary of the combined company, of which $6.9 million was funded in connection with the closing of the initial mergers. The equity interest is entitled to a cumulative preferred annual return of 14.0%. The combined company also entered into a loan agreement with MVB Bank, Inc. with respect to a $6.5 million loan consisting of a $4.5 million term loan and a $2.0 million revolving credit facility.

The proceeds from the new financings were used to repay indebtedness securing properties acquired in the initial mergers and for general corporate purposes, including the payment of certain transaction costs.

Baird is serving as exclusive financial advisor to Broad Street, and Morrison & Foerster and Shulman Rogers are serving as legal advisors to Broad Street.

About Broad Street Realty, Inc.

Broad Street Realty, Inc. is a fully integrated and self-managed real estate company that owns, operates, develops and redevelops primarily grocery-anchored shopping centers and mixed-use properties in the Mid-Atlantic, Southeast and Denver, Colorado markets. Broad Street is also a market-leading commercial real estate services firm that delivers cost-effective solutions for office, industrial and retail clients. The company has extensive experience in tenant representation, landlord representation, property acquisition and disposition, real estate development, project/construction management, finance, strategic consulting, property management and asset management.

Safe Harbor Statement

This press release contains forward-looking statements within the meaning of the U.S. federal securities laws. These statements are based on current expectations of the Company’s management with respect to the transactions and other matters described in this press release. While the Company’s management believes the assumptions underlying its forward-looking statements and information are reasonable, such information is necessarily subject to uncertainties and may involve certain risks, many of which are difficult to predict and are beyond the control of the Company’s management. These risks include, but are not limited to: the occurrence of any event, change or other circumstances that could give rise to the termination of any of the remaining merger agreements; the outcome of any legal proceedings that may be instituted against the Company, the Broad Street entities or others in connection with the mergers; the inability to complete the remaining mergers due to the failure to satisfy other conditions to completion of the remaining mergers, including the financing condition and obtaining consent from the requisite lenders, or otherwise; the ability to recognize the benefits of the mergers; the amount of the costs, fees, expenses and charges related to the mergers; the Company’s substantial leverage as a result of indebtedness incurred and preferred equity issued in connection with the mergers, which could adversely affect the Company’s ability to pay cash dividends and meet other cash needs; the Company’s ability to repay, refinance, restructure and/or extend its indebtedness as it comes due; the availability of financing and capital to the Company; the Company’s ability to identify, finance, consummate and integrate additional acquisitions or investments; adverse economic or real estate developments, either nationally or in the markets in which the Company’s properties are located; adverse changes in financial markets or interest rates; the nature and extent of competition for tenants and acquisitions; other factors affecting the retail industry or the real estate industry generally; and other risks that are set forth under “Risk Factors” in MedAmerica’s Annual Report on Form 10-K for the year ended December 31, 2018, and other documents filed by the Company with the SEC from time to time. The Company can provide no assurances that the remaining mergers will close on the timing described in the press release or at all. All forward-looking statements speak only as of the date of this press release. All subsequent written and oral forward-looking statements attributable to us or any person acting on our behalf are qualified by the cautionary statements in this section. Except as otherwise may be required by law, the Company undertakes no obligation to update or publicly release any revisions to forward-looking statements to reflect events, circumstances or changes in expectations after the date of this press release.