LOAN AGREEMENT

Exhibit 10.1

LOAN AGREEMENT

Dated as of July 26, 2024

Among

THE ENTITIES IDENTIFIED ON EXHIBIT A ATTACHED HERETO,

collectively, as Borrower,

and

XXXXX FARGO BANK, NATIONAL ASSOCIATION,

XXXXXX XXXXXXX MORTGAGE CAPITAL HOLDINGS LLC,

SOCIÉTÉ GÉNÉRALE FINANCIAL CORPORATION,

BANK OF MONTREAL,

JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,

BARCLAYS CAPITAL REAL ESTATE INC.,

XXXXXXX XXXXX BANK USA,

BANK OF AMERICA, N.A.,

and

GERMAN AMERICAN CAPITAL CORPORATION,

collectively, as Lender

TABLE OF CONTENTS

Page

ARTICLE I DEFINITIONS; PRINCIPLES OF CONSTRUCTION			1

	Section 1.1	Definitions	1
	Section 1.2	Principles of Construction	67

ARTICLE II GENERAL TERMS			67

	Section 2.1	Loan Commitment; Disbursement to Borrower	67
	2.1.1	Agreement to Lend and Borrow	67
	2.1.2	No Reborrowings	67
	2.1.3	Intentionally Omitted	67
	2.1.4	The Note, Mortgages and Loan Documents	68
	2.1.5	Use of Proceeds	68
	2.1.6	Components of the Loan	68
	Section 2.2	Interest Rate	68
	2.2.1	Interest Rate	68
	2.2.2	Interest Calculation	68
	2.2.3	Default Rate	68
	2.2.4	Usury Savings	69
	2.2.5	Determination of Interest Rate	69
	2.2.6	Additional Costs	72
	2.2.7	Interest Rate Protection Agreement	73
	Section 2.3	Loan Payment	77
	2.3.1	Monthly Debt Service Payments	77
	2.3.2	Payments Generally	77
	2.3.3	Payment on Maturity Date	78
	2.3.4	Late Payment Charge	78
	2.3.5	Method and Place of Payment	78
	Section 2.4	Prepayments	78
	2.4.1	Voluntary Prepayments	78
	2.4.2	Mandatory Prepayments	81
	2.4.3	Prepayments After Default	82
	2.4.4	Application of Interest and Prepayments to Components	82
	Section 2.5	Reallocation of Allocated Loan Amounts	83
	Section 2.6	Release of Properties	84
	2.6.1	Release of Individual Property	84
	2.6.2	Releases of Release Parcels/Rights	89
	2.6.3	Release on Payment in Full	93
	2.6.4	Release of Reserve Funds	93
	2.6.5	Assignments of Mortgages	93
	Section 2.7	Lockbox Account/Cash Management	93
	2.7.1	Lockbox Account	93
	2.7.2	Cash Management Account	95

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	2.7.3	Payments Received under the Cash Management Agreement	96
	2.7.4	Distributions to Mezzanine Borrower	96
	Section 2.8	Extension of the Initial Maturity Date	97
	Section 2.9	Withholding Taxes	98
	Section 2.10	New Mezzanine Loan	102

ARTICLE III INTENTIONALLY OMITTED			104

ARTICLE IV REPRESENTATIONS AND WARRANTIES			104

	Section 4.1	Borrower Representations	104
	4.1.1	Organization	104
	4.1.2	Proceedings	104
	4.1.3	No Conflicts	105
	4.1.4	Litigation	105
	4.1.5	Agreements	105
	4.1.6	Title	106
	4.1.7	Solvency	106
	4.1.8	Intentionally Omitted	107
	4.1.9	No Plan Assets	107
	4.1.10	Compliance	107
	4.1.11	Financial Information	108
	4.1.12	Condemnation	108
	4.1.13	Federal Reserve Regulations	108
	4.1.14	Utilities and Public Access	108
	4.1.15	Not a Foreign Person	109
	4.1.16	Separate Lots	109
	4.1.17	Assessments	109
	4.1.18	Enforceability	109
	4.1.19	No Prior Collateral Assignment	109
	4.1.20	Insurance	109
	4.1.21	Use of Property	110
	4.1.22	Certificate of Occupancy; Licenses	110
	4.1.23	Flood Zone	110
	4.1.24	Physical Condition	110
	4.1.25	Boundaries	111
	4.1.26	Leases	111
	4.1.27	Survey	112
	4.1.28	Principal Place of Business; State of Organization	112
	4.1.29	Filing and Recording Taxes	112
	4.1.30	Special Purpose Entity/Separateness	112

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	4.1.31	Management Agreement	119
	4.1.32	Illegal Activity	119
	4.1.33	No Change in Facts or Circumstances; Disclosure	119
	4.1.34	Investment Company Act	120
	4.1.35	Embargoed Person	120
	4.1.36	Cash Management Account	120
	4.1.37	Reciprocal Easement Agreement	121
	4.1.38	Equipment, Fixtures and Personal Property	121
	4.1.39	Full and Accurate Disclosure	121
	4.1.40	Underwriting Representations	122
	Section 4.2	Survival of Representations	124
	Section 4.3	ERISA Representations of Lender	124

ARTICLE V BORROWER COVENANTS			124

	Section 5.1	Affirmative Covenants	124
	5.1.1	Existence; Compliance with Legal Requirements	125
	5.1.2	Taxes and Other Charges	126
	5.1.3	Litigation	127
	5.1.4	Access to Properties	127
	5.1.5	Notice of Default	127
	5.1.6	Cooperate in Legal Proceedings	127
	5.1.7	Perform Loan Documents	127
	5.1.8	Award and Insurance Benefits	127
	5.1.9	Further Assurances	128
	5.1.10	Supplemental Mortgage Affidavits	128
	5.1.11	Financial Reporting	129
	5.1.12	Business and Operations	133
	5.1.13	Title to the Properties	133
	5.1.14	Costs of Enforcement	133
	5.1.15	Estoppel Statement	134
	5.1.16	Loan Proceeds	134
	5.1.17	Intentionally Omitted	134
	5.1.18	Confirmation of Representations	134
	5.1.19	Intentionally Omitted	134
	5.1.20	Leasing Matters	134
	5.1.21	Alterations	136
	5.1.22	Operation of Property	138
	5.1.23	PILOT Lease.	138
	5.1.24	Intentionally Omitted	142
	5.1.25	Updated Appraisals	142

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	5.1.26	Principal Place of Business, State of Organization	142
	5.1.27	Embargoed Person	143
	5.1.28	Special Purpose Entity/Separateness	143
	5.1.29	Access Laws	144
	5.1.30	Required Repairs	144
	5.1.31	Ground Lease.	145
	5.1.32	Condominium. Borrower covenants and agrees that:	148
	Section 5.2	Negative Covenants	148
	5.2.1	Operation of Property	149
	5.2.2	Liens; Utility and Other Easements	149
	5.2.3	Dissolution; Amendment of Organizational Documents	151
	5.2.4	Change in Business	151
	5.2.5	Debt Cancellation	151
	5.2.6	Zoning	152
	5.2.7	No Joint Assessment	152
	5.2.8	Principal Place of Business and Organization	152
	5.2.9	Intentionally Omitted	153
	5.2.10	Transfers	153
	5.2.11	Indebtedness. Borrower shall not incur any Indebtedness other than Permitted Debt.	161
	5.2.12	REA	161
	5.2.13	ERISA Matters	161
	5.2.14	Leasing Matters	161

ARTICLE VI INSURANCE; CASUALTY; CONDEMNATION			161

	Section 6.1	Insurance.	161
	Section 6.2	Casualty	169
	Section 6.3	Condemnation	170
	Section 6.4	Restoration	170

ARTICLE VII RESERVE FUNDS			178

	Section 7.1	Ground Lease Reserve Funds.	178
	7.1.1	Deposits to Ground Lease Reserve Fund.	178
	7.1.2	Release of Ground Lease Reserve Fund.	178
	Section 7.2	Tax and Insurance Reserve Funds	179
	7.2.1	Tax and Insurance Reserve Funds	179
	Section 7.3	Intentionally Omitted	180
	Section 7.4	Replacement Reserve Account.	180
	7.4.1	Deposits to Replacement Reserve Fund.	180

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	7.4.2	Withdrawals from Replacement Reserve Fund.	181
	Section 7.5	Excess Cash Flow Reserve Fund.	181
	7.5.1	Deposits to Excess Cash Flow Reserve Fund	181
	7.5.2	Release of Excess Cash Flow Reserve Fund	182
	Section 7.6	Rate Cap Reserve Funds	184
	Section 7.7	MC Reserve Funds	186
	Section 7.8	Intentionally Omitted.	186
	Section 7.9	Intentionally Omitted	186
	Section 7.10	Letter of Credit	186
	Section 7.11	Reserve Accounts Generally	188
	Section 7.12	Distributions to Mezzanine Lenders.	189

ARTICLE VIII DEFAULTS			190

	Section 8.1	Event of Default	190
	Section 8.2	Remedies	195
	Section 8.3	Remedies Cumulative; Waivers	197
	Section 8.4	Simultaneous Foreclosure	197

ARTICLE IX SPECIAL PROVISIONS			197

	Section 9.1	Securitization.	197
	9.1.1	Sale of Notes and Securitization	197
	9.1.2	Splitting the Loan; Uncross of Properties	204
	9.1.3	Intentionally Omitted	206
	9.1.4	Securitization/Syndication Costs	206
	Section 9.2	Exculpation.	206
	Section 9.3	Matters Concerning Manager	210
	Section 9.4	Servicer	210

ARTICLE X MISCELLANEOUS			211

	Section 10.1	Survival	211
	Section 10.2	Xxxxxx’s Discretion	211
	Section 10.3	Governing Law	211
	Section 10.4	Modification, Waiver in Writing	213
	Section 10.5	Delay Not a Waiver	213
	Section 10.6	Notices	213
	Section 10.7	Trial by Jury	216
	Section 10.8	Headings	217
	Section 10.9	Severability	217

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Section 10.10	Preferences	217
Section 10.11	Waiver of Notice	217
Section 10.12	Remedies of Borrower	217
Section 10.13	Expenses; Indemnity.	217
Section 10.14	Schedules Incorporated	219
Section 10.15	Offsets, Counterclaims and Defenses	219
Section 10.16	No Joint Venture or Partnership; No Third Party Beneficiaries	220
Section 10.17	Publicity	220
Section 10.18	Cross-Collateralization; Waiver of Marshalling of Assets	220
Section 10.19	Waiver of Counterclaim	221
Section 10.20	Conflict; Construction of Documents; Reliance	221
Section 10.21	Brokers and Financial Advisors	221
Section 10.22	Prior Agreements; Notice to Borrower	221
Section 10.23	Joint and Several Liability	222
Section 10.24	Register	222
Section 10.25	Certain Additional Rights of Lender (VCOC)	222
Section 10.26	Intentionally Omitted	223
Section 10.27	Use of Borrower Provided Information	223
Section 10.28	Borrower Affiliate Lender	224
Section 10.29	TRS Transfer	225
Section 10.30	Approvals and Consents	225
Section 10.31	Acknowledgement and Consent to Bail-In of Affected Financial Institutions	229
Section 10.32	Pre-Negotiation Agreement	230
Section 10.33	Discounted Payoff.	231
Section 10.34	Counterparts; Electronic Signatures	231

SCHEDULES AND EXHIBITS

Schedule 1.1(a)	–	Allocated Loan Amounts
Schedule 1.1(b)	–	Existing Management Agreement
Schedule 1.1(c)	–	Intentionally Omitted
Schedule 1.1(d)	–	Preapproved Alterations
Schedule 1.1(e)	–	Intentionally Omitted
Schedule 1.1(f)	–	Aggregate Square Footage
Schedule 1.1(g)	–	Condominium Documents
Schedule 1.1(h)	–	Condominium Release Units
Schedule 1.1(i)	–	Intentionally Omitted
Schedule 1.1(j)	–	Reciprocal Easement Agreements
Schedule 1.1(k)	–	Net Operating Income Calculation
Schedule 1.1(l)	–	Intentionally Omitted
Schedule 1.1(m)	–	Property
Schedule 1.1(n)	–	Permitted Encumbrances
Schedule 1.1(o)	–	Intentionally Omitted
Schedule 1.1(p)	–	Intentionally Omitted
Schedule 1.1(q)	–	Previously-Owned Property
Schedule 1.1(r)	–	Previously-Owned Property Borrower
Schedule 2.6.2	–	Pre-Identified Release Parcels
Schedule 2.9	–	Section 2.9 Certificate
Schedule 4.1.1	–	Organizational Chart of Borrower
Schedule 4.1.4	–	Litigation
Schedule 4.1.5	–	Agreements
Schedule 4.1.6	–	Title
Schedule 4.1.12	–	Condemnations
Schedule 4.1.16	–	Combined Lots
Schedule 4.1.17	–	Assessments
Schedule 4.1.22	–	Zoning Issues
Schedule 4.1.26(a)	–	Leases
Schedule 4.1.26(b)	–	Rent Roll Discrepancies
Schedule 4.1.26(c)	–	Intentionally Omitted
Schedule 4.1.26(d)	–	Prepaid Rent
Schedule 4.1.26(e)	–	Outstanding Landlord Work
Schedule 4.1.26(f)	–	Rights of First Refusal or Similar Rights
Schedule 4.1.26(g)	–	Tenant Termination Rights
Schedule 4.1.28	–	Borrower Principal Place of Business
Schedule 4.1.30	–	Special Purpose Entity/Separateness
Schedule 4.1.31	–	Management Agreements
Schedule 4.1.33	–	No Change in Facts or Circumstances; Disclosure
Schedule 4.1.38	–	Equipment, Fixtures and Personal Property
Schedule 4.1.40	–	Underwriting Representations
Schedule 4.1.41	-	Ground Lease Representations
Schedule 5.1.30	–	Required Repairs
Schedule 5.1.31	–	Mariner’s Cove Ground Lease Permitted Modifications
Schedule 5.2.10	–	REIT Election

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Schedule 5.2.14	–	Leasing Matters
Schedule 7.7.1	–	Reserved
Schedule 7.7.2	–	Reserved

Exhibit A	–	Borrower
Exhibit B	–	Form of Subordination, Non-Disturbance and Attornment Agreement
Exhibit C	–	Form of Excess Cash Flow Guaranty
Exhibit D	–	Intentionally Omitted
Exhibit E	–	Intentionally Omitted
Exhibit F	–	Intentionally Omitted
Exhibit G	–	Form of Debt Yield Trigger Cure Guaranty
Exhibit H	–	Form of Rate Cap Reserve Guaranty
Exhibit I	–	Form of Pre-Negotiation Agreement

viii

LOAN AGREEMENT

THIS LOAN AGREEMENT, dated as of July 26, 2024 (as amended, restated, replaced, supplemented or otherwise modified from time to time, this “Agreement”), between XXXXX FARGO BANK, NATIONAL ASSOCIATION, a national banking association, having an address at c/x Xxxxx Fargo Commercial Mortgage Servicing, 000 X. Xxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 (“Xxxxx”), XXXXXX XXXXXXX MORTGAGE CAPITAL HOLDINGS LLC, a New York limited liability company, having an address at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (“MS”), SOCIÉTÉ GÉNÉRALE FINANCIAL CORPORATION, a Delaware corporation, having an address at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (“SG”), BANK OF MONTREAL, a Canadian Chartered Bank acting through its Chicago Branch, having an address at c/o BMO Capital Markets Corp., 000 Xxxx 00^xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (“BMO”), JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, a national banking, having an address at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (“JPM”), BARCLAYS CAPITAL REAL ESTATE INC., a Delaware corporation, having an address at 000 0xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (“Barclays”), XXXXXXX XXXXX BANK USA, a New York State-Charted Bank, having an address at 0000 Xxxx Xxxxxx, 00xx Xxxxx, Xxxxxx, Xxxxx 00000(“GS”), BANK OF AMERICA, N.A., a national banking association, having an address at 000 Xxxxx Xxxxx Xxxxxx, XX0-000-00-00, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 (“BofA”), and GERMAN AMERICAN CAPITAL CORPORATION, having an address at 0 Xxxxxxxx Xxxxxx, 00^xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (“GACC”, and together with Xxxxx, MS, SG, BMO, JPM, Barclays, GS, BofA, and their respective successors and/or assigns, collectively, the “Lender”) and THE ENTITIES IDENTIFIED ON EXHIBIT A ATTACHED HERETO AS BORROWER (each an “Individual Borrower” and collectively and/or individually as the context may require, “Borrower”), each having its principal place of business at c/o Blackstone Real Estate Advisors, L.P., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, with respect to those certain Properties set forth on Schedule 1.1(m) attached hereto.

W I T N E S S E T H:

WHEREAS, Xxxxxxxx desires to obtain the Loan (as hereinafter defined) from Lender; and

WHEREAS, Xxxxxx is willing to make the Loan to Borrower, subject to and in accordance with the terms of this Agreement and the other Loan Documents (as hereinafter defined).

NOW THEREFORE, in consideration of the making of the Loan by Xxxxxx and the covenants, agreements, representations and warranties set forth in this Agreement, the parties hereto hereby covenant, agree, represent and warrant as follows:

ARTICLE I

DEFINITIONS; PRINCIPLES OF CONSTRUCTION

Section 1.1 Definitions. For all purposes of this Agreement, except as otherwise expressly required or unless the context clearly indicates a contrary intent:

“40% Gap” shall have the meaning set forth in Section 6.1(b) hereof.

“40% Standard” shall have the meaning set forth in Section 6.1(b) hereof.

“Acceptable Blanket Policy” shall have the meaning set forth in Section 6.1(b) hereof.

“Acceptable Counterparty” shall mean a counterparty to the Interest Rate Protection Agreement (or the guarantor of such counterparty’s obligations) that (a) until the expiration of the applicable Interest Rate Protection Agreement has and shall maintain, (i) if any of the Securities or any class thereof in any Securitization is rated by Moody’s, a long-term senior unsecured debt or counterparty rating of at least A2 from Moody’s, (ii) if any of the Securities or any class thereof in any Securitization is rated by S&P, a long-term senior unsecured debt or counterparty rating of at least A+ by S&P and (iii) if any of the Securities or any class thereof in any Securitization is rated by Fitch, a short-term senior unsecured debt or counterparty rating of at least F-1 by Fitch or (b) is otherwise acceptable to the Rating Agencies, as evidenced by a Rating Agency Confirmation to the effect that such counterparty shall not cause a downgrade, withdrawal or qualification of the ratings assigned, or to be assigned, to the Securities or any class thereof in any Rated Securitization. Notwithstanding anything to the contrary, (i) U.S. Bank, N.A. shall qualify as an Acceptable Counterparty, (ii) Xxxxx Fargo Bank, National Association shall qualify as an Acceptable Counterparty and (iii) SMBC Capital Markets, Inc. shall qualify as an Acceptable Counterparty subject to providing, if such entity does not itself satisfy the foregoing credit requirements, a guaranty on SMBC’s then-customary form from an affiliate satisfying the foregoing credit ratings requirements. Notwithstanding the foregoing, if none of the foregoing rating agencies rate the securities issued in the first Securitization of the Loan, or the Loan is not subject to a Rated Securitization, then the rating requirements of the Acceptable Counterparty shall be mutually agreed upon by Borrower and Lender (provided, in no event shall such rating requirements be higher than those set forth in clause (a) above).

“Access Laws” shall have the meaning set forth in the definition of “Legal Requirements”.

“Additional Administrative Agent Decision” shall have the meaning set forth in Section 10.30(a) hereof.

“Additional Insolvency Opinion” shall have the meaning set forth in Section 4.1.30(d) hereof.

“Additional Insolvency Opinion Condition” shall mean that the aggregate amounts guaranteed pursuant to all Ancillary Guaranties, any Deductible Guaranties, any TI Guarantees and any Letters of Credit provided by any Insolvency Opinion Affiliate (or any Affiliate thereof that is also an Insolvency Opinion Affiliate), is in an aggregate amount equal to or greater than fifteen percent (15%) of the Outstanding Loan Amount.

“Additional Interest” shall have the meaning set forth in Section 2.4.1(a) hereof.

“Administrative Agent” means, as applicable, (i) Xxxxx or any successor thereof in accordance with Section 10.30(d) of this Agreement, (ii) following the Securitization of the last

portion of the Loan (including a Securitization of the entire Loan), the trustee under such Securitization or any Servicer selected by such trustee and (iii) if the Loan is sold by Lender such that the Loan is held by a single Lender, then automatically, and without any further action by Xxxxxx, such single Lender that holds the Loan for so long as such Lender is the sole holder of the Loan.

“Administrative Agent Decisions” shall have the meaning set forth in Section 10.30(a) hereof.

“Affected Financial Institution” shall mean (a) any EEA Financial Institution or (b) any UK Financial Institution.

“Affected Properties” shall have the meaning set forth in Section 9.1.2(b) hereof.

“Affiliate” shall mean, as to any Person, any other Person that, directly or indirectly, is in Control of, is Controlled by or is under common Control with such Person or is a director or officer of such Person or of an affiliate of such Person.

“Affiliate Lender” shall have the meaning set forth in Section 10.28 hereof.

“Affiliate Management Fee Subordination Condition” shall have the meaning set forth in the definition of “Capped Actual Management Fee Condition.”

“Affiliate Manager” shall mean any Manager in which Xxxxxxxx, SPE Constituent Entity or Guarantor Controls or has, directly or indirectly, fifty percent (50%) or more of the legal, beneficial or economic interest therein.

“Agent” shall mean the “Cash Management Bank” under the Cash Management Agreement.

“Aggregate LTV Ratio” shall mean the ratio of (a) (i) the Outstanding Loan Amount as of the closing date of the New Mezzanine Loan, plus (ii) the principal amount of the New Mezzanine Loan (including any undisbursed funds) to (b) the aggregate value of the Properties as determined pursuant to appraisals ordered by Xxxxxx in connection with the closing of the New Mezzanine Loan.

“Aggregate Material Adverse Effect” shall mean any event or condition that has a material adverse effect on (a) the use, operation, or value of the Properties taken as a whole, (b) the business, profits, operations or financial condition of Borrower (including, without limitation, Net Operating Income) taken as a whole, (c) the enforceability, validity, perfection or priority of the lien of the Mortgages or the other Loan Documents, in each case, taken as a whole or (d) the ability of Borrowers, as a whole, to repay the principal and interest of the Loan as it becomes due or to satisfy any of Borrowers’ other material obligations under the Loan Documents.

“Aggregate Square Footage” shall mean the aggregate rentable square footage in any of the improvements at the Properties (excluding the rentable square footage of each Release Property that shall have been released from the Lien of the related Mortgage pursuant to Section

2.6 prior to the date of determination). As of the Closing Date, the Aggregate Square Footage of each Individual Property is as set forth on Schedule 1.1(f) hereof.

“Agreement” shall have the meaning set forth in the introductory paragraph hereto.

“AI REIT” shall mean Apartment Income REIT, L.P., a Delaware limited partnership.

“Allocated Loan Amount” shall mean, with respect to each Individual Property, the amount set forth on Schedule 1.1(a) hereof (as may be reduced or reallocated from time to time pursuant to the terms and conditions hereof). For the avoidance of doubt, no portion of the Loan shall be allocated to any of the Release Parcels/Rights.

“ALTA” shall mean American Land Title Association, or any successor thereto.

“Alternate Release Price” shall have the meaning set forth in Section 2.6.1 hereof.

“Alterations” shall have the meaning set forth in Section 5.1.21(a) hereof.

“Alterations Deposit” shall have the meaning set forth in Section 5.1.21(b) hereof.

“Alterations Guarantor” shall mean any of (i) Guarantor, (ii) one or more Replacement Sponsor Guarantors, (iii) one or more Replacement Affiliate Guarantors, or (iv) from and after a substitution in accordance with the terms hereof and of the Alterations Guaranty, any Replacement Guarantor.

“Alterations Guaranty” shall have the meaning set forth in Section 5.1.21(b) hereof.

“Alterations Guaranty Assumption” shall have the meaning set forth in Section 5.2.10(d)(i) hereof.

“Alterations Threshold Amount” shall mean five percent (5%) of the sum of the original principal amount of the Loan and, if applicable, any New Mezzanine Loan.

“Alternate Index Rate” shall mean with respect to any Benchmark Transition Event the sum of: (a) the alternate benchmark rate that has been selected by Lender (after consultation with Borrower) giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body at such time or (ii) any evolving or then-prevailing market convention for determining a rate of interest as a replacement for the then-current Benchmark for U.S. dollar-denominated stand-alone floating rate CMBS loans with sponsors similar to Sponsor at such time and (b) the Alternate Rate Spread Adjustment, provided, that, in no event shall the Alternate Index Rate for any Interest Period be deemed to be less than zero.

“Alternate Rate” shall mean, with respect to each Interest Period, the per annum rate of interest of the Alternate Index Rate determined as of the applicable Determination Date plus the Spread for each Component.

“Alternate Rate Loan” shall mean the Loan at such time as interest thereon accrues at a per annum rate of interest equal to the Alternate Rate for the Note (or each Component, as applicable).

“Alternate Rate Spread Adjustment” shall mean, with respect to any replacement of the then-current Benchmark with an Unadjusted Alternate Index Rate, an amount (which may be a positive or negative value or zero) equal to the difference (expressed as the number of basis points) between (1) the average value of the then-current Benchmark during the ninety (90) day period ending as of the most recent Determination Date for which such Benchmark was available and (2) the average value of the applicable Unadjusted Alternate Index Rate during such period.

“Alternate Strike Price” shall mean a strike price chosen by Borrower in its sole discretion which is greater than the Strike Price and with respect to which the Alternate Strike Price Condition has been satisfied.

“Alternate Strike Price Condition” shall mean that Borrower has either (i) deposited in the Rate Cap Reserve Account, (ii) delivered a Letter of Credit, and/or (iii) delivered a Rate Cap Reserve Guaranty to Lender, in accordance with the terms and conditions of this Agreement, in each case, in an amount equal to, or with respect to the delivery of a Rate Cap Reserve Guaranty, guaranteeing the payment of an amount equal to, the applicable Rate Cap Reserve Amount (or permitted portion thereof pursuant to the Loan Documents).

“Ancillary Guarantor” shall mean, individually or collectively, as the context requires, Alterations Guarantor, Excess Cash Flow Guarantor, Rate Cap Reserve Guarantor, the Reserve Guarantor and Debt Yield Trigger Cure Guarantor (in each case, only to the extent such entity has delivered the applicable Ancillary Guaranty in accordance with the terms of this Agreement and such Ancillary Guaranty has not terminated pursuant to its terms).

“Ancillary Guaranty” shall mean, individually or collectively, as the context requires, (a) the Alterations Guaranty, (b) the Excess Cash Flow Guaranty, (c) the Rate Cap Reserve Guaranty, (d) the Debt Yield Trigger Cure Guaranty, (e) the Reserve Guaranty and (f) any Deductible Guaranty (in each case, only to the extent delivered in accordance with the terms of this Agreement).

“Annual Budget” shall mean the operating budget, including all planned Capital Expenditures, for the Properties prepared by or on behalf of Borrower in accordance with Section 5.1.11(f) hereof for the annual budgeting period.

“Annual Financial Statements” shall have the meaning set forth in Section 5.1.11(b) hereof.

“Applicable Similar Law” shall have the meaning set forth in Section 4.1.9 hereof.

“Applicable Strike Price” shall mean (a) for purposes of calculating the Debt Service Coverage Ratio in connection with determination of a new Extension Strike Price, the new Extension Strike Price and (b) for all other purposes, the then-current existing Strike Price.

“Applicable Index Rate” shall mean, (I) Term SOFR, (II) the Unadjusted Alternate Index Rate if the Loan is an Alternate Rate Loan, or (III) the Prime Index Rate if the Loan is a Prime Rate Loan.

“Approval Standards” shall have the meaning set forth in Section 10.30(e) hereof.

“Approved Accounting Principles” shall mean (a) GAAP or (b) such other consistently applied accounting basis that is acceptable to Lender.

“Approved Alterations” shall have the meaning set forth in Section 5.1.21(a) hereof.

“Approved Annual Budget” shall have the meaning set forth in Section 5.1.11(f) hereof.

“Approved Borrower Sub” shall have the meaning set forth in Section 5.2.10(f) hereof.

“Approved Control Party” shall mean (x) one or more entities comprising any Approved Sponsor Entity, (y) following a Permitted Assumption, the Permitted Assumption Party(ies) or (z) following a Public Sale, the applicable Public Vehicle.

“Approved Drop Downs” shall have the meaning set forth in Section 5.2.10(f) hereof.

“Approved Sponsor Entity” shall mean any entity comprising Initial Sponsor and/or any Blackstone Fund Entity.

“Assignment of Interest Rate Protection Agreement” shall have the meaning set forth in Section 2.2.7(a) hereof.

“Assignment of Management Agreement” shall mean those certain Assignments of Management Agreement and Subordination of Management Fees, dated as of the Closing Date, among Lender, the applicable Borrower and the applicable Manager, as manager, as each of the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Audit Date” shall have the meaning set forth in Section 5.1.11(b) hereof.

“Award” shall mean any compensation paid by any Governmental Authority to Borrower or any of its Affiliates in connection with a Condemnation with respect to all or any part of any Individual Property.

“Axiom Ground Lease” shall mean that certain that certain Ground Lease, dated as of November 12, 2010, between Axiom Ground Lessor (f/k/a Bent Associates Limited Partnership, a Massachusetts limited partnership), as ground lessor, and Bent Street Land Company LLC, as ground lessee, as assigned by that certain Assignment, Assumption and Modification of Ground Lease, dated as of March 28, 2012, between Bent Street Land Company LLC, as assignor, 000 Xxxxx Xxxxxx Associates, Limited Partnership, as assignee and Axiom Ground Lessor, as ground

lessor, as amended by that certain Amendment and Modification of Ground Lease, dated as of March 26, 2015, between Axiom Ground Lessor, as ground lessor, and 000 Xxxxx Xxxxxx Associates, Limited Partnership, as ground lessee, as further assigned by that certain Assignment and Assumption of Ground Lease, dated April 23, 2015 between 159 First Street Associates, Limited Partnership, as assignor, and Axiom Ground Lease Borrower (f/k/a AIMCO 000 Xxxxx Xxxxxx, LLC), as assignee as the same may hereafter be amended, restated, supplemented or modified from time to time in accordance with this Agreement.

“Axiom Ground Lease Borrower” shall mean AIR 000 Xxxxx Xxxxxx, LLC, a Delaware limited liability company.

“Axiom Ground Lessor” shall mean Bent Associates, LLC, a Massachusetts limited liability company.

“Bail-In Action” shall mean the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.

“Bail‑In Legislation” shall mean (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation, rule or requirement for such EEA Member Country from time to time which is described in the EEA Bail‑In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).

“Bankruptcy Action” shall mean with respect to any Person (a) such Person filing a voluntary petition under the Bankruptcy Code; (b) the filing of an involuntary petition against such Person under the Bankruptcy Code, or soliciting or causing to be solicited petitioning creditors for any involuntary petition against such Person under the Bankruptcy Code; (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; (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 any Individual Property; or (e) such Person making an assignment for the benefit of creditors. A Bankruptcy Action shall automatically cease upon a Bankruptcy Action Cure to the extent such Bankruptcy Action is eligible to be cured in accordance with the definition of “Bankruptcy Action Cure”.

“Bankruptcy Action Cure” shall mean, in the event of an involuntary Bankruptcy Action that was not consented to by Borrower or any SPE Constituent Entity, such Bankruptcy Action being discharged, stayed or dismissed within ninety (90) days of the filing thereof.

“Bankruptcy Code” shall mean 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, state or foreign bankruptcy or insolvency law.

“Base Fee” shall have the meaning set forth in the definition of “Capped Actual Management Fee Condition.”

“Benchmark” shall mean (i) initially, the Term SOFR Reference Rate for a one-month tenor; and (ii) on and after the conversion to an Alternate Index Rate pursuant to Section 2.2.5 hereof, the Alternate Index Rate determined in accordance with the terms and conditions hereof.

“Benchmark Replacement Condition” means either (i) an opinion of nationally recognized REMIC counsel as to the compliance of such conversion with applicable REMIC requirements as determined under the Code, the regulations, revenue rulings, revenue procedures and other administrative, legislative and judicial guidance relating to the tax treatment of REMIC Trusts (which such opinion shall be, in form and substance and from a provider, in each case, reasonably acceptable to Lender) obtained at Borrower’s costs and expense or (ii) formal guidance issued by the IRS that such conversion will comply with REMIC requirements.

“Benchmark Replacement Date” shall mean the earliest to occur of the following events with respect to the then-current Benchmark:

(1) in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date of the public statement or publication of information referenced therein and (b) the date on which the administrator of the Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide the Benchmark (or such component thereof); and

(2) in the case of clause (3) of the definition of “Benchmark Transition Event,” the first date on which such Benchmark (or the published component used in the calculation thereof) has been determined and announced by or on behalf of the administrator of such Benchmark (or such component thereof) or the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be non-representative or non-compliant with or non-aligned with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks; provided that such non-representativeness, non-compliance or non-alignment will be determined by reference to the most recent statement or publication referenced in such clause (3) and even if any available tenor of such Benchmark (or such component thereof) continues to be provided on such date.

Notwithstanding the foregoing, if the Loan is included in a REMIC Trust, in no event shall the Benchmark Replacement Date occur prior to satisfaction of the Benchmark Replacement Condition or waiver thereof by Lender.

“Benchmark Transition Event” shall mean the occurrence of one or more of the following events with respect to the then-current Benchmark:

(1) a public statement or publication of information by or on behalf of the administrator of the Benchmark (or the published component used in the calculation thereof)

announcing that such administrator has ceased or will cease to provide the Benchmark (or such component thereof), permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide the Benchmark (or such component thereof);

(2) a public statement or publication of information by the regulatory supervisor for the administrator of the Benchmark (or the published component used in the calculation thereof), the central bank for the currency of the Benchmark, an insolvency official with jurisdiction over the administrator for the Benchmark (or such component), a resolution authority with jurisdiction over the administrator for the Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for the Benchmark (or such component), which states that the administrator of the Benchmark (or such component) has ceased or will cease to provide the Benchmark (or such component) permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide the Benchmark (or such component); or

(3) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) or the regulatory supervisor for the administrator of such Benchmark (or such component thereof) announcing that the Benchmark (or such component thereof) is not, or as of a specified future date will not be, representative or in compliance with or aligned with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks.

“Benchmark Unavailability Period” shall mean unless and until an Alternate Index Rate is implemented with respect to the then-current Benchmark pursuant to Section 2.2.5(d) (rather than pursuant to Section 2.2.5(b)), each Interest Period (if any) for which Lender determines that (a) adequate and reasonable means do not exist for ascertaining the Applicable Index Rate (including, if the Benchmark is the Term SOFR Reference Rate, that Term SOFR cannot be determined in accordance with the definition thereof) or (b) that it is unlawful to use the then-current Benchmark to determine the applicable Interest Rate for any Interest Period.

“Blackstone Fund Entity” shall mean, individually or collectively, as the context requires, any entity comprising (i) intentionally omitted, (ii) Blackstone Real Estate Partners VIII L.P., and any parallel vehicles or alternative investment vehicles comprising such fund (including Blackstone Real Estate Partners VIII NQ L.P.) and any co-investment or managed vehicles Controlled by or under common Control with any of the foregoing entities (“BREP VIII”), (iii) Blackstone Real Estate Partners IX L.P., Blackstone Real Estate Partners IX.TE.1 L.P., Blackstone Real Estate Partners IX.TE.2 L.P., Blackstone Real Estate Partners IX.TE.3 L.P., Blackstone Real Estate Partners IX.F (AV-1) L.P., and any parallel vehicles, partnerships or alternative investment vehicles comprising the real estate investment fund commonly known as Blackstone Real Estate Partners IX (including Blackstone Real Estate Partners IX NQ L.P.) and any co-investment or managed vehicles Controlled by or under common Control with the foregoing entities (“BREP IX”), (iv) Blackstone Real Estate Partners X L.P., and any parallel vehicles or alternative investment vehicles comprising such fund (including Blackstone Real Estate Partners X NQ L.P.) and any co-investment or managed vehicles Controlled by or under common Control with any of the foregoing entities (“BREP X”), (v) Blackstone Real Estate Income Trust, Inc. or any successor thereto, (vi) XXXXX Operating Partnership L.P. or any

successor thereto (“XXXXX”), (vii) Blackstone Property Partners Lower Fund 1 L.P. and Blackstone Property Partners Lower Fund 2 L.P. or any successor thereto, and any parallel vehicles or alternative investment vehicles comprising the real estate investment fund commonly known as Blackstone Property Partners and any co-investment or managed vehicles Controlled thereby or under common Control with any of the foregoing entities (collectively, “BPP”), (viii) any entity comprising any real estate investment fund commonly known as a Blackstone Real Estate Partners fund (including, without limitation, BREP VIII, BREP IX or BREP X), and any parallel vehicles or alternative investment vehicles comprising such fund and any co-investment or managed vehicles Controlled by or under common Control with any of the foregoing entities (each such fund, a “BREP Fund”), or (ix) any entity comprising any other real estate investment fund sponsored by Blackstone Inc. (or any successor thereto) and any parallel vehicles or alternative investment vehicles comprising such fund and any co-investment or managed vehicles Controlled by or under common Control with any of the foregoing entities (each, an “Other Blackstone Fund”).

“Borrower” shall have the meaning set forth in the introductory paragraph hereto, together with each such Person’s successors and permitted assigns.

“Borrower DY Deficiency Reserve” shall have the meaning set forth in Section 2.6.1(a)(v) hereof.

“Borrower Interest Rate Cap Party” shall mean, individually or collectively as the context may require, Flamingo South Acquisitions, LLC and North Park Avenue, LLC or any other Individual Borrower selected by Borrower and party to any Interest Rate Protection Agreement or Replacement Interest Rate Protection Agreement, as may be in effect from time to time, in accordance with the terms hereof.

“Borrower Reporting Update” shall have the meaning set forth in Section 5.1.11(m) hereof.

“Breakage Costs” shall have the meaning set forth in Section 2.2.5(h) hereof.

“Budget Submission Date” shall have the meaning set forth in Section 5.1.11(f) hereof.

“Business Day” shall mean any day other than a Saturday, Sunday or any other day on which any of the following are not open for business: (i) national banks in New York, New York, (ii) the New York Stock Exchange, (iii) the Federal Reserve Bank of New York or (iv) provided that Borrower shall have received written notice thereof (which written notice, in the case of any determination of any Payment Date or the date upon which any other payment hereunder is required to be made pursuant to Section 2.3.2 shall have been delivered to Borrower not less than thirty (30) days prior to such date), (A) the principal place of business of the trustee under a Securitization (or, if no Securitization has occurred, the principal place of business of Lender), (B) the principal place of business of any Servicer or (C) the principal place of business of the Agent, the Lockbox Bank or the financial institution that maintains any Reserve Account.

“Cap Account” shall mean the Lockbox Account, as further described on Schedule II of the Assignment of Interest Rate Protection Agreement.

“Capital Expenditures” shall mean, for any period, the amount expended for items capitalized under Approved Accounting Principles (including expenditures for building improvements, replacements or major repairs, leasing commissions and tenant improvements).

“Capped Actual Management Fee Condition” shall mean satisfaction of each of the following: (i) Manager is an Affiliate of Borrower (and no third-party sub-management agreement has been entered into), (ii) no Cash Sweep Event (including resulting from an Event of Default) is then continuing and (iii) all amounts payable to such Manager pursuant to the applicable Management Agreement which exceeds two and one-half percent (2.5%) of Gross Income from Operations (the “Base Fee”) with respect to any Individual Property shall be paid to such Manager only from available cash flow from the operation of such Individual Property after payment to Lender of Debt Service (including Mezzanine Debt Service) and payment of all other Priority Waterfall Payments (this clause (iii), the “Affiliate Management Fee Subordination Condition”).

“Cash Management Account” shall have the meaning set forth in Section 2.7.2 hereof.

“Cash Management Agreement” shall mean the Closing Date Cash Management Agreement or any Replacement Cash Management Agreement, as applicable, in each case, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Cash Sweep Cure Date” shall mean the first date following the occurrence of a Cash Sweep Event on which (i) with respect to a Cash Sweep Event caused by a Debt Yield Trigger Event, a Debt Yield Trigger Event Cure has taken place, (ii) with respect to a Cash Sweep Event caused by an Event of Default, no Event of Default is continuing, (iii) with respect to a Cash Sweep Event caused by a Mezzanine Loan Default, no Mezzanine Loan Default is continuing, or (iv) with respect to a Cash Sweep Event as a result of a Bankruptcy Action of Borrower, a Bankruptcy Action Cure has occurred.

“Cash Sweep Event” shall mean the occurrence of: (a) an Event of Default; (b) a Mezzanine Loan Default; (c) any Bankruptcy Action of Borrower; or (d) a Debt Yield Trigger Event.

“Cash Sweep Period” shall mean the period commencing on the occurrence of a Cash Sweep Event and terminating on the Cash Sweep Cure Date.

“Cash Sweep Period Instructions” shall have the meaning set forth in Section 2.7.1(c) hereof.

“Casualty” shall have the meaning set forth in Section 6.2 hereof.

“Casualty Consultant” shall have the meaning set forth in Section 6.4(b)(iii) hereof.

“Casualty Retainage” shall have the meaning set forth in Section 6.4(b)(iv) hereof.

“Casualty/Condemnation Prepayment” shall have the meaning set forth in Section 6.4(f) hereof.

“Casualty/Condemnation Threshold Amount” shall mean, with respect to any Individual Property, the greater of (x) ten percent (10%) of the sum of the Allocated Loan Amount of such Individual Property, and, if applicable, the allocated loan amount for such Individual Property under any Mezzanine Loan and (y) five percent (5%) of the sum of the Outstanding Loan Amount and, if applicable, the Outstanding Mezzanine Loan Amount.

“Certificate of Rent Roll” shall mean a Certificate of Rent Roll, dated as of the Closing Date, certifying and attaching a rent roll for each Individual Property, which rent roll shall not be dated any earlier than the month prior to the Closing Date.

“Closing Date” shall mean the date of this Agreement.

“Closing Date Cash Management Agreement” shall mean that certain Cash Management Agreement, dated as of the Closing Date, by and among Borrower and Xxxxxx, as the same may be subsequently joined to or assumed by Agent.

“Closing Date Debt Yield” shall mean 7.2%.

“Closing Date Lockbox Agreement” shall mean, that certain Deposit Account Control Agreement, dated as of the Closing Date, among Borrower, Lender and Lockbox Bank, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

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

“Collective Group” shall mean, collectively, each Borrower and each SPE Constituent Entity.

“Common Charges” shall mean all fees, dues, charges and assessments, whether annual, monthly, regular, special or otherwise payable by Borrower under the Condominium Documents, but excluding Section 2.9 Taxes and without duplication of Taxes, Other Charges and Insurance Premiums.

“Competitor” shall mean any direct competitor of Guarantor, Sponsor, Blackstone Inc. or any of their respective Affiliates that is primarily engaged in the business of owning or operating commercial real estate in the ordinary course; provided that Affiliates of such competitors that are regularly engaged in the business of commercial real estate lending, including Affiliates of such competitors who regularly purchase commercial real estate debt securities, shall not be “Competitors.”

“Component” shall mean, individually any one of Component A, Component B, Component C, Component D, Component E and Component HRR, as described in Section 2.1.6 hereof.

“Components” shall mean, collectively, Component A, Component B, Component C, Component D, Component E and Component HRR.

“Condemnation” shall mean a temporary or permanent taking by any Governmental Authority as the result or in lieu or in anticipation of the exercise of the right of condemnation or eminent domain, of all or any part of any Individual Property, or any interest therein or right accruing thereto, including any right of access thereto or any change of grade affecting such Individual Property or any part thereof.

“Condemnation Proceeds” shall have the meaning set forth in Section 6.4(b) hereof.

“Condominium” shall mean, collectively, the condominium regimes created pursuant to the Condominium Documents.

“Condominium Board” shall mean any board of directors or other similar executive or administrative entity established by the Condominium Documents to act on behalf of the related association for purposes of governing the Condominium.

“Condominium Documents” shall mean the documents set forth on Schedule 1.1(g) attached hereto with respect to each Condominium, as each of the same may be amended, restated, replaced or otherwise modified from time to time in accordance with the terms and conditions of this Agreement.

“Condominium Law” shall mean, with respect to each Condominium, all applicable local, state and federal laws, rules and regulations related to the establishment, maintenance and governance of condominiums in the applicable State(s) where such Condominium is located.

“Condominium Release Unit” shall mean, individually or collectively, as the context requires, with respect to each Condominium set forth on Schedule 1.1(h) attached hereto, the residential units part of such Condominium that comprise an Individual Property.

“Condominium Release Unit Amount” shall mean the amount identified on Schedule 1.1(h) attached hereto with respect to the applicable Condominium Release Unit.

“Confidential Information” shall have the meaning set forth in Section 10.32 hereof.

“Conforming Changes” shall mean, with respect to the use, administration, adoption or implementation of any Alternate Index Rate, any technical, administrative or operational changes (including changes to the definition of “Business Day,” “Determination Date”, “Interest Period,” and “U.S. Government Securities Business Day,” preceding and succeeding business day conventions and other administrative or operational matters, timing and frequency of determining rates and other administrative matters, but expressly excluding changes to the frequency of making payments of interest) that Lender determines (after consultation with Borrower) are necessary to reflect the adoption and implementation of such Alternate Index Rate in a manner consistent with market practice for U.S. dollar-denominated floating rate securitized loans at such time with sponsors similar to Sponsor (or, if Lender decides (after consultation with Borrower) that adoption of any portion of such market practice is not administratively feasible for Lender, in such other manner of administration as Lender (after consultation with Borrower) decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents); provided, in each case, in no event shall Conforming Changes (a) result

in an increase to (x) the number of days between the Payment Date and the end of the applicable Interest Period or (y) the Interest Rate in effect immediately prior to the adoption of such Conforming Changes other than a change due to the Alternate Rate Spread Adjustment or (b) amend the Payment Date.

“Consent Request Date” shall have the meaning set forth in Section 10.30(f) hereof.

“Consumer Price Index” shall mean the All Items Consumer Price Index for all Urban Consumers (CPI-U) for the US City Average, 1982-84=100, as published by the United States Department of Labor, Bureau of Labor Statistics or any substitute index hereafter adopted by the Department of Labor.

“Contribution Agreement” shall mean that certain Contribution Agreement, dated as of the Closing Date, by and among each Borrower and Lender, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Control” shall mean the possession, directly or indirectly, of the power to direct or cause the direction of management, policies or activities of a Person, whether through ownership of voting securities, by contract or otherwise; provided that customary major decision rights of holders of direct or indirect interests in Borrower shall not constitute “Control” by such holders nor shall such major decision rights negate “Control” by the party that is subject to such major decision rights. “Controlled” and “Controlling” shall have correlative meanings.

“Controlling Interest Transfer” shall have the meaning set forth in Section 5.2.10(e) hereof.

“Converted Interest Rate Protection Agreement” shall have the meaning set forth in Section 2.2.7(g)(i) hereof.

“Covered Disclosure Information” shall have the meaning set forth in Section 9.1.1(c) hereof.

“Covered Provided Information” shall mean, in connection with a Rated Securitization, any and all financial information (including without limitation any Lease and Tenant Information) (including any updates thereto) with respect to the Borrowers or the Properties that (i) is provided to Lender in writing (which may be via e-mail) at any time by, or on behalf of, Borrower, SPE Constituent Entity, Guarantor, Sponsor and/or Manager (if the Manager is an Affiliate Manager) and (ii) is relied upon by Lender in connection with statements made in the term sheet (other than a pre-marketing term sheet) and preliminary offering circular prepared in connection with the applicable Securitization or is otherwise provided to the Rating Agencies in connection with the Securitization; provided that Covered Provided Information shall not include (x) any third party reports or information (including financial information or forecasted information) that is solely obtained from any third party report, including, without limitation, zoning reports, appraisals, property condition reports or environmental reports or (y) any statements and information relating to the cities and regions in which the Properties are located.

“Covered Sections” shall have the meaning set forth in Section 9.1.1(c) hereof.

“Debt” shall mean the Outstanding Loan Amount, together with all interest accrued and unpaid thereon (including, after a Securitization, any interest that would accrue on the Outstanding Loan Amount through and including the end of any applicable Interest Period, even if such Interest Period extends beyond any applicable Payment Date, prepayment date or the Maturity Date), any Spread Maintenance Premium that, in each case, becomes due pursuant to Section 2.4 hereof, and all other sums due to Lender in respect of the Loan under the Note, this Agreement, the Mortgages and the other Loan Documents.

“Debt Service” shall mean, with respect to any particular period of time, the scheduled interest payments due under this Agreement and the Note.

“Debt Service Coverage Ratio” shall mean a ratio in which (a) the numerator is the Net Operating Income and (b) the denominator is the aggregate amount of Debt Service and Mezzanine Debt Service that would be payable pursuant to this Agreement and, if there is a Mezzanine Loan outstanding at such time, the Mezzanine Loan Agreement during the twelve (12) month period following the date of calculation calculated using (A) with respect to the Loan, (i) the Outstanding Loan Amount as of the applicable date of determination and (ii) an Interest Rate calculated based on the sum of (x) (I) the Weighted Average Spread, if the Loan is a SOFR Loan, (II) the Prime Rate Spread, if the Loan is a Prime Rate Loan and (III) the Weighted Average Spread plus the Alternate Rate Spread Adjustment, if the Loan is an Alternate Rate Loan, as applicable and (y) the Applicable Strike Price and (B) with respect to the Mezzanine Loan, if any, (i) the Outstanding Mezzanine Loan Amount as of the applicable date of determination and (ii) an Interest Rate (as defined in the Mezzanine Loan Agreement) calculated based on the sum of (x)(I) the Spread (as defined in the Mezzanine Loan Agreement, if the Mezzanine Loan is a SOFR Loan (as defined in the Mezzanine Loan Agreement)), (II) the Prime Rate Spread (as defined in the Mezzanine Loan Agreement), if the Mezzanine Loan is a Prime Rate Loan (as defined in the Mezzanine Loan Agreement) and (III) the Spread (as defined in the Mezzanine Loan Agreement) plus the Alternate Rate Spread Adjustment (as defined in the Mezzanine Loan Agreement), if the Mezzanine Loan is an Alternate Rate Loan (as defined in the Mezzanine Loan Agreement), as applicable, and (y) the Applicable Strike Price (as defined in the Mezzanine Loan Agreement).

“Debt Yield” shall mean, as of any date of determination, a fraction (a) the numerator of which is the Net Operating Income calculated as of such date and (b) the denominator of which is the aggregate of (x) the then Outstanding Loan Amount as of such date and (y) if there is a Mezzanine Loan outstanding at such time, the then Outstanding Mezzanine Loan Amount as of such date (provided, that if there is a Mezzanine Loan outstanding and such Mezzanine Loan has been the subject of a Discounted Payoff, then the Outstanding Mezzanine Loan Amount shall be deemed reduced by the amount of such Mezzanine Loan retired in connection with the related Discounted Payoff).

“Debt Yield Cure Collateral” shall have the meaning set forth in the definition of “Debt Yield Trigger Event Cure”.

“Debt Yield Cure Collateral Amount” shall mean the amount by which Net Operating Income would need to increase in order to achieve a Debt Yield equal to the Debt Yield Threshold.

“Debt Yield Deficiency” shall mean the amount by which the then Outstanding Loan Amount and the then Outstanding Mezzanine Loan Amount, in the aggregate, need to be reduced in order for the Release Debt Yield to equal or be greater than the Closing Date Debt Yield.

“Debt Yield Determination Date” shall mean the date of Xxxxxxxx’s delivery to Lender of the quarterly financial reporting set forth in Section 5.1.11(e) hereof (or if Borrower shall fail to deliver to Lender such financial reporting set forth in Section 5.1.11(e) hereof by the deadlines set forth in Section 5.1.11(e) hereof, such date as selected by Lender to reflect such period as would have been covered in the quarterly financial reporting set forth in Section 5.1.11(e) if the same was delivered by the deadlines set forth in Section 5.1.11(e) hereof).

“Debt Yield Threshold” shall mean six percent (6.00%).

“Debt Yield Trigger Cure Guarantor” shall mean any of (i) Guarantor, (ii) one or more Replacement Sponsor Guarantor(s) or (iii) one or more Replacement Affiliate Guarantors.

“Debt Yield Trigger Cure Guaranty Assumption” shall have the meaning set forth in Section 5.2.10(d)(i) hereof.

“Debt Yield Trigger Cure Guaranty” shall have the meaning ascribed to such term in the definition of “Debt Yield Trigger Event Cure” pursuant to Section 1.1 hereof.

“Debt Yield Trigger Cure Prepayment Amount” shall mean the aggregate amount of the Loan and the Mezzanine Loans that if partially prepaid would result in a Debt Yield equal to the Debt Yield Threshold.

“Debt Yield Trigger Event” shall mean that, as of any Debt Yield Determination Date, the Debt Yield for the two (2) consecutive calendar quarters immediately preceding such Debt Yield Determination Date is less than the Debt Xxxxx Xxxxxxxxx.

“Debt Yield Trigger Event Cure” shall mean the occurrence of any of the following: (i) the Debt Yield, as determined as of the first day of each of any two (2) consecutive calendar quarters following the occurrence of the applicable Debt Yield Trigger Event is no less than the Debt Yield Threshold, (ii) Borrower prepays the Loan in an amount equal to Lender’s Allocation of the Debt Yield Trigger Cure Prepayment Amount and, if a Mezzanine Loan is outstanding, the Mezzanine Borrower prepays the Mezzanine Loan in an amount equal to Lender’s Allocation (as defined in the Mezzanine Loan Agreement) of the Debt Yield Trigger Cure Prepayment Amount (provided that in the event of a prepayment pursuant to this clause (ii), the Debt Yield Trigger Period shall cease upon such prepayment without any obligation to wait two (2) consecutive calendar quarters), (iii) Debt Yield Trigger Cure Guarantor delivers to Lender a guarantee in form and substance of the Debt Yield Trigger Cure Guaranty attached as Exhibit G hereto or otherwise reasonably acceptable to Administrative Agent (the “Debt Yield Trigger Cure Guaranty”) which Debt Yield Trigger Cure Guaranty shall (1) be in an amount equal to Lender’s Allocation of the Debt Yield Trigger Cure Prepayment Amount and (2) if the Additional Insolvency Opinion Condition is satisfied, then Borrower shall deliver an Additional Insolvency Opinion reasonably acceptable to Lender, which takes into account such Debt Yield Trigger Cure Guaranty, and, if a Mezzanine Loan is outstanding, Debt Yield Trigger Cure Guarantor shall deliver to the Mezzanine

Lender a guarantee in form and substance as the form attached to the Mezzanine Loan Agreement or as otherwise reasonably acceptable to such Mezzanine Lender (the “Mezzanine Debt Yield Trigger Cure Guaranty”) which Mezzanine Debt Yield Trigger Cure Guaranty shall (1) be in an amount equal to Lender’s Allocation (as defined in the Mezzanine Loan Agreement) of the Debt Yield Trigger Cure Prepayment Amount and (2) if the Additional Insolvency Opinion Condition (as defined in the Mezzanine Loan Agreement) is satisfied, then Mezzanine Borrower shall deliver an Additional Insolvency Opinion (as defined in such Mezzanine Loan Agreement) reasonably acceptable to Mezzanine Lender, which takes into account such Mezzanine Debt Yield Trigger Cure Guaranty, and such Debt Yield Trigger Cure Guaranty shall be terminated by Lender and, if a Mezzanine Loan is outstanding, such Mezzanine Debt Yield Trigger Cure Guaranty shall be terminated by the Mezzanine Lender upon the earlier of (x) the occurrence of a Debt Yield Trigger Event Cure pursuant to clause (i) or (ii) above or (iv) below (provided that no other Cash Sweep Period is then in effect), and (y) with respect to the portion guaranteed by Guarantor to Lender or Mezzanine Lender, the repayment of the Debt or the Mezzanine Loan Debt, as applicable, in full, or (iv) Borrower delivers to Lender cash and/or a Letter of Credit in an amount equal to Lender’s Allocation of the Debt Yield Cure Collateral Amount (the “Debt Yield Cure Collateral”) and Mezzanine Borrower delivers to the Mezzanine Lender cash and/or a Letter of Credit in an amount equal to Xxxxxx’s Allocation (as defined in the Mezzanine Loan Agreement) the Debt Yield Cure Collateral Amount (the “Mezzanine Debt Yield Cure Collateral”), which such Debt Yield Cure Collateral shall be held by Lender in escrow as additional collateral for the Loan (and shall be held by the Mezzanine Lender in escrow as additional collateral for the Mezzanine Loan) and shall be returned to Borrower by Xxxxxx and be returned to the Mezzanine Borrower by the Mezzanine Lender upon the earlier of (x) the occurrence of a Debt Yield Trigger Event Cure pursuant to clause (i), (ii) or (iii) above (provided that no other Cash Sweep Period is then in effect), and (y) with respect to the portion held by Lender or Mezzanine Lender, the repayment of the Debt or the Mezzanine Loan Debt, as applicable, in full. For the avoidance of doubt, (1) the Debt Yield Cure Collateral shall not be applied by Lender and the Debt Yield Trigger Cure Guaranty shall not be drawn on by Lender to satisfy any portion of the Debt other than during the continuance of a Priority Payment Cessation Event and (2) the Mezzanine Debt Yield Cure Collateral shall not be applied by Mezzanine Lender and any Mezzanine Debt Yield Trigger Cure Guaranty shall not be drawn on by Mezzanine Lender to satisfy any portion of the Mezzanine Loan Debt other than during the continuance of a Priority Payment Cessation Event (as defined in the Mezzanine Loan Agreement). In the event the Debt Yield Trigger Event Cure is achieved by delivery of the Debt Yield Cure Collateral or the Debt Yield Trigger Cure Guaranty to Lender and delivery of the Mezzanine Debt Yield Cure Collateral or the Mezzanine Debt Yield Trigger Cure Guaranty to Mezzanine Lender in accordance with the terms hereof, the applicable Debt Yield Trigger Period shall cease upon delivery of (y) such Debt Yield Cure Collateral to Lender and such Mezzanine Debt Yield Cure Collateral to the Mezzanine Lender or (z) such Debt Yield Trigger Cure Guaranty to Lender and such Mezzanine Debt Yield Trigger Cure Guaranty to the Mezzanine Lender, without any obligation to wait two (2) consecutive calendar quarters. In addition, Borrower may elect, in its sole discretion, to cause the occurrence of any Debt Yield Trigger Event Cure to avoid a Cash Sweep Period from occurring.

“Debt Yield Trigger Period” shall mean the period from the date of the occurrence of a Debt Yield Trigger Event until the date that a Debt Yield Trigger Event Cure occurs in respect of such Debt Yield Trigger Event.

“Deductible Guaranty” shall have the meaning set forth in Section 6.1(a)(i) hereof.

“Deemed Approval Requirements” means, with respect to a request by Borrower for Xxxxxx’s approval or consent, that:

(i) if the first correspondence from Borrower to Lender requesting such approval or consent contains a bold-faced, conspicuous legend at the top of the first page thereof stating “FIRST NOTICE: THIS IS A REQUEST FOR CONSENT UNDER THE BX 2024-AIRC CMBS LOAN. FAILURE TO RESPOND TO THIS REQUEST WITHIN 10 BUSINESS DAYS MAY RESULT IN THE REQUEST BEING DEEMED GRANTED,” and is accompanied by such information and documents as is reasonably required for Lender to adequately evaluate such request and as reasonably requested by Xxxxxx in writing prior to the expiration of such ten (10) Business Day period, and

(ii) if Lender fails to grant or withhold its approval to such request within such ten (10) Business Day period, a second notice requesting approval is delivered to Lender from Borrower containing a bold-faced, conspicuous legend at the top of the first page thereof stating that “SECOND AND FINAL NOTICE: THIS IS A REQUEST FOR CONSENT UNDER THE BX 2024-AIRC CMBS LOAN. FAILURE TO RESPOND TO THIS REQUEST IN WRITING WITHIN 5 BUSINESS DAYS WILL RESULT IN YOUR APPROVAL BEING DEEMED GRANTED,” and is accompanied by such information and documents as is reasonably required for Lender to adequately evaluate such request and as reasonably requested by Xxxxxx in writing prior to the expiration of such five (5) Business Day period, and if Lender fails to grant or withhold its approval to such request (or denies such request without stating the grounds for such denial in reasonable detail) prior to the expiration of such five (5) Business Day period.

“Default” shall mean the occurrence of any event hereunder or under any other Loan Document which, but for the giving of notice or passage of time, or both, would be an Event of Default.

“Default Rate” shall mean a rate per annum equal to the lesser of (a) the Maximum Legal Rate and (b) three percent (3%) above the Interest Rate otherwise applicable to each Component.

“Default Release” shall have the meaning set forth in Section 2.6.1(c) hereof.

“Determination Date” shall mean, with respect to any Interest Period, (x) if the Loan is a SOFR Loan, the Periodic Term SOFR Determination Day for such Interest Period, (y) if the Loan is a Prime Rate Loan, the date that is two (2) Business Days prior to the commencement date of such Interest Period and (z) if the Loan is an Alternate Rate Loan, the date and time determined by Lender (after consultation with Borrower) in accordance with the definition of “Conforming Changes.”

“Disclosure Document(s)” shall mean a prospectus, prospectus supplement, private placement memorandum, offering memorandum, offering circular, term sheet (but excluding any

pre-marketing term sheet), or other similar offering documents provided to prospective investors (but excluding any such similar offering documents delivered in connection with the pre-marketing of the applicable Rated Securitization), in each case in preliminary or final form and including any amendments, supplements, exhibits, annexes and other attachments thereto, used to offer Securities in connection with a Rated Securitization that has been (i) delivered to Borrower by Lender for Borrower’s review and (ii) designated as a “Disclosure Document” by Xxxxxx in its reasonable discretion in a written notice to Borrower (which may be by email).

“Discounted Payoff” shall have the meaning set forth in Section 2.10(k) hereof.

“Division” shall mean, as to any Person, such Person dividing and/or otherwise engaging in and/or becoming subject to, in each case, any division pursuant to, or as permitted by, § 18-217 of the Delaware Limited Liability Company Act.

“DY Guaranty Amount” shall have the meaning assigned thereto in Section 5.2.10(d)(i) hereof.

“EEA Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.

“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.

“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.

“EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

“Eligibility Requirements” means, with respect to any Person, that such Person together with its Affiliates (i) is regularly engaged in the business of making, originating or owning commercial mortgage or mezzanine real estate loans or interests in such commercial mortgage and/or mezzanine real estate loans and holds at least $500,000,000 of such commercial real estate loans (and/or interest therein), (ii) is not an Embargoed Person and has never been convicted of, or pled guilty or no contest to, any unlawful activity, including money laundering, terrorism or terrorism activities, (iii) has not been party to any bankruptcy proceedings, voluntary or involuntary, made an assignment for the benefit of creditors or taken advantage of any insolvency act, or any act for the benefit of debtors or the subject of any material governmental or regulatory investigation which resulted in a final, non-appealable conviction for criminal activity involving moral turpitude or a civil proceeding in which such Person has been found liable in a final non-appealable judgment for attempting to hinder, delay or defraud creditors, each within seven (7)

years prior to the date of determination and (iv) if such Person is not a bank or an insurance company, has no material then outstanding and unpaid judgments against such Person.

“Eligible Account” shall mean a separate and identifiable account from all other funds held by (a) 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 $50,000,000.00 and subject to supervision or examination by federal and state authority, as applicable, or (b) following a Rated Securitization, a Servicer acceptable to the Rating Agencies. An Eligible Account will not be evidenced by a certificate of deposit, passbook or other instrument.

“Eligible Assignee” shall mean (A) during the continuance of an Event of Default, any Person (provided that so long as no Priority Payment Cessation Event has occurred, such Person shall not be a Competitor) and (B) so long as no Event of Default has occurred and is continuing, any Person (other than a natural person) that is any of the following, provided that any such Person shall at the time it acquires an interest in the Loan satisfy the Eligibility Requirements: (a) a commercial bank or investment bank organized under the laws of the United States, or any state thereof which regularly invests in or makes commercial real estate loans; (b) a commercial bank or investment bank organized under the laws of any other country that is a member of the Organization for Economic Cooperation and Development (the “OECD”), or a political subdivision of any such country which regularly invests in or makes commercial real estate loans (provided that such bank is acting through a branch or agency located in the country in which it is organized or another country which is also a member of the OECD); (c) a commercial bank organized under the laws of the People’s Republic of China (or Taiwan); (d) a Person that is engaged in the business of commercial real estate banking and that is: (1) an Affiliate of a Lender, or (2) a Person of which a Lender is a subsidiary; (e) an insurance company, mutual fund or other financial institution organized under the laws of the United States, any state thereof, any other country which is a member of the OECD or a political subdivision of any such country which regularly invests in or makes commercial real estate loans; (f) a fund (other than a mutual fund) which regularly invests in or makes commercial real estate loans; (g) any Lender, or (h) such other Person reasonably approved by Borrower. Notwithstanding the foregoing, “Eligible Assignee” shall not include (w) any Lender that is a defaulting lender under any Lender Document, (x) any Competitor (other than during the continuance of an Event of Default if a Priority Payment Cessation Event has occurred), (y) an Embargoed Person, or (z) Borrower or its Affiliates, except to the extent permitted by, and subject to, Section 10.28. Notwithstanding anything to the contrary contained herein, if any proposed transferee of the Loan is not an Eligible Assignee, Xxxxxxxx’s reasonable consent to such transferee will be required (provided, if the proposed transferee is a Competitor or an Embargoed Person, Xxxxxxxx’s consent may be given or withheld in its sole and absolute discretion). Notwithstanding the foregoing, following the occurrence of a Securitization of the Loan (or any portion thereof), then with respect to the portion of the Loan subject to such Securitization only, no restriction set forth herein shall prevent Lender from selling or distributing the related certificates (or similar interests) to any Person or entity in connection with such Securitization.

“Eligible Institution” shall mean either (a) 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 Xxxxx’x and “F‑1+” by Fitch in the case of accounts in which funds are held for thirty (30) days or less (or, in the case of Letters of Credit and accounts in which funds are held for more than thirty (30) days, the long-term unsecured debt obligations of which are rated at least “AA-” by Fitch and S&P and “Aa3” by Moody’s), or (b) in its capacity as Agent, Lockbox Bank or the holder of any Reserve Account hereunder, Bank of America, N.A., KeyBank National Association, JPMorgan Chase Bank, N.A., Xxxxx Fargo Bank, National Association, Capital One, N.A., PNC Bank, N.A. or U.S. Bank, N.A. or such other financial institution reasonably acceptable to Lender, provided, that, in each case the applicable ratings of such entity are not reduced below the lower of (i) the ratings set forth in subsection (a) hereof and (ii) such entity’s ratings in effect as of the Closing Date.

“Embargoed Person” shall mean any Person, entity or government targeted by trade restrictions under U.S. law, including, but not limited to, The USA PATRIOT Act (including the anti‑terrorism provisions thereof), the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701, et seq., The Trading with the Enemy Act, 50 U.S.C. App. 1 et seq., and any Executive Orders or regulations promulgated thereunder including those related to Specially Designated Nationals and Specially Designated Global Terrorists, or targeted by any economic sanctions regime administered or enforced by Canada or the European Union, with the result that the investment in Borrower, any SPE Constituent Entity, Guarantor or Sponsor, as applicable (whether directly or indirectly), is prohibited by law or the Loan is in violation of law.

“Environmental Indemnity” shall mean that certain Environmental Indemnity Agreement, dated as of the Closing Date, executed by Xxxxxxxx in connection with the Loan for the benefit of Lender, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Equipment” shall have the meaning set forth in the granting clause of the related Mortgage with respect to each Individual Property.

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

“Event of Default” shall have the meaning set forth in Section 8.1 hereof.

“Excess Cash Flow” shall mean all funds outstanding in the Cash Management Account (in excess of any required minimum balance) after payment or disbursement of all amounts which are required to be paid or disbursed pursuant to Sections 3(a) through (j) of the Cash Management Agreement.

“Excess Cash Flow Deposit Cap” shall have the meaning set forth in Section 7.5.1 hereof.

“Excess Cash Flow Guarantor” shall mean any of (i) Guarantor, (ii) one or more Replacement Sponsor Guarantors or (iii) one or more Replacement Affiliate Guarantors.

“Excess Cash Flow Guaranty” shall mean an Excess Cash Flow Guaranty entered into by an Excess Cash Flow Guarantor for the benefit of Lender in the form of the Excess Cash Flow Guaranty attached hereto as Exhibit C and entered into in accordance with Section 7.5.2(c) hereof, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Excess Cash Flow Guaranty Assumption” shall have the meaning set forth in Section 5.2.10(d)(i) hereof.

“Excess Cash Flow Reserve Account” shall have the meaning set forth in Section 7.5.1 hereof.

“Excess Cash Flow Reserve Funds” shall have the meaning set forth in Section 7.5.1 hereof.

“Excess Net Proceeds” shall have the meaning set forth in Section 6.4(b)(vii) hereof.

“Exchange Act” shall have the meaning set forth in Section 9.1.1(m) hereof.

“Excluded Entity” shall mean any entity comprising Initial Sponsor or any other Approved Sponsor Entity or any direct or indirect legal or beneficial owner (including, without limitation, any shareholder partner, member and/or non‑member manager) of any entity comprising Initial Sponsor or any other Approved Sponsor Entity.

“Excluded Lease” shall mean (a) any leases for solar panels or solar facilities, storage, rooftop equipment or parking and (b) ordinary course (i) space license agreements for telecommunications equipment and antennas, (ii) agreements for catering, business or similar special events or functions at any of the Properties, (iii) de minimis billboard leases, and (iv) leases for management offices.

“Excluded Taxes” shall mean any of the following Section 2.9 Taxes imposed on or with respect to a recipient: (a) Section 2.9 Taxes that are imposed on a recipient’s overall net income (and franchise Section 2.9 Taxes imposed in lieu thereof or in addition thereto), or by the jurisdiction under the laws of which such recipient is organized or in which the principal office is located or, in the case of any Lender, in which its applicable lending office is located or as a result of a present or former connection between the recipient and the jurisdiction imposing such tax (unless such Section 2.9 Taxes are imposed solely as a result of the recipient having executed, delivered or performed its obligations or received payments under, or enforced, this Agreement or any of the other Loan Documents), (b) Section 2.9 Taxes that are branch profits taxes imposed by the United States or any other jurisdiction described in clause (a) above, (c) in the case of a Lender, any U.S. federal Section 2.9 Taxes resulting from any applicable law in effect on the date Lender becomes a party to this Agreement (or designates a new lending office), except to the extent that such Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office (or assignment), to receive additional amounts from any Loan Party with respect to such Section 2.9 Taxes pursuant to Section 2.9(a), (d) any Section 2.9 Taxes attributable to Xxxxxx’s (or other relevant recipient’s) failure to comply with Section 2.9(e) and (e) any Section 2.9 Taxes imposed pursuant to FATCA.

“Existing Management Agreement” shall mean those certain Property Management Agreements set forth on Schedule 1.1(b) attached hereto, pursuant to which Existing Manager is to provide management, parking and other services (as applicable) with respect to the Properties.

“Existing Manager” shall mean, collectively, each manager that is party to an Existing Management Agreement.

“Exiting Guarantor” shall have the meaning set forth in Section 5.2.10(d)(i) hereof.

“Extended Maturity Date” shall have the meaning set forth in Section 2.8 hereof.

“Extension Option” shall have the meaning set forth in Section 2.8 hereof.

“Extension Strike Price” shall have the meaning set forth in the definition of “Strike Price” hereof.

“Extension Term” shall have the meaning set forth in Section 2.8 hereof.

“Extraordinary Expense” shall have the meaning set forth in Section 5.1.11(f) hereof.

“Face Amount” shall mean the actual principal amount of the Mezzanine Loan (or portion thereof), if any, being retired pursuant to a Discounted Payoff.

“FATCA” shall mean Sections 1471 through 1474 of the Code, as of the Closing Date (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Code.

“Federal Reserve Bank of New York’s Website” shall mean the website of the Federal Reserve Bank of New York at xxxx://xxx.xxxxxxxxxx.xxx, or any successor source.

“Fiscal Year” shall mean each twelve (12) month period commencing on January 1 and ending on December 31 during each year of the term of the Loan.

“Fitch” shall mean Fitch, Inc.

“Fixtures” shall have the meaning set forth in the granting clause of the related Mortgage with respect to each Individual Property.

“Force Majeure” shall mean any event, circumstance or condition beyond the reasonable control of Borrower, including without limitation, strikes, labor disputes, acts of God, the elements, governmental restrictions, regulations or controls, enemy action, civil commotion, fire, casualty, accidents, disease, pandemic, epidemic, quarantine, mechanical breakdowns or

shortages of, or inability to obtain, labor, utilities or materials, in each case which prevents, hinders or delays Borrower’s ability to perform its obligations hereunder.

“Foreclosure” shall have the meaning set forth in Section 9.2(a)(vi) hereof.

“Free Excess Cash Flow” shall mean, as of any date of determination during a Cash Sweep Period, all Excess Cash Flow that is (x) in an amount greater than the Excess Cash Flow Deposit Cap or (y) guaranteed pursuant to the Excess Cash Flow Guaranty.

“Free Prepayment Amount” shall have the meaning set forth in Section 2.4.1(b) hereof.

“Fremont Ground Lease” shall mean that certain Ground Lease Agreement, dated as of September 11, 2018, between Fremont Ground Lessor (f/k/a AIMCO Xxxxxxxxxx 3A Lessor, LLC) and Fremont Ground Lessee (f/k/a AIMCO Xxxxxxxxxx 3A Lessee LLC).

“Fremont Ground Lease Modification” shall have the meaning set forth in Section 5.1.32 hereof.

“Fremont Ground Lessee” shall mean AIR Xxxxxxxxxx 3A Lessee LLC, a Delaware limited liability company.

“Fremont Ground Lessor” shall mean AIR Xxxxxxxxxx 3A Lessor LLC, a Delaware limited liability company.

“Fremont Individual Property” shall mean the Individual Property located at 00000 Xxxx 00^xx Xxxxxx, Xxxxxx, XX 00000.

“FS Condominium Board Policies” shall have the meaning set forth in Section 6.1(h) hereof.

“GAAP” shall mean generally accepted accounting principles in the United States of America as of the date of the applicable financial report.

“Governmental Authority” shall mean any court, board, agency, commission, office or other authority of any nature whatsoever for any governmental unit (foreign, federal, state, county, district, municipal, city or otherwise) whether now or hereafter in existence having jurisdiction over, as applicable, Borrower, Guarantor and/or any Property (and any operations conducted thereat).

“Grantor Trust” shall mean a grantor trust as defined in subpart E, part I of subchapter J of the Code.

“Gross Income from Operations” shall mean, for any date of determination, all revenue derived from the ownership and operation of the Properties from whatever source, including, without limitation, (a) total annualized base rent in place as of such date of determination based on executed Leases (net of concessions for multifamily residential Tenants), including (i) executed commercial Leases with in-place Tenants based on the current rent roll, (ii)

executed residential Leases (A) with in-place Tenants based on the current rent roll and (B) future lease term commencement dates, provided that, (x) such future lease commencement date is scheduled to occur within twelve (12) months of the date of determination, (y) the applicable Tenant has no ability to terminate the Lease prior to its commencement and (z) rents from any in-place Tenant of the same space has not been included pursuant to the foregoing (ii)(A) for the same portion of the applicable calculation period, and (iii) any contractual rent increases within the twelve (12) calendar months following such date of determination (provided, however, notwithstanding the foregoing, to the extent a unit is preleased and included in this calculation pursuant to the foregoing (ii)(B), the rent in connection therewith to be utilized in connection the calculation of “Gross Income from Operations” shall be the current in-place rent for such unit), but excluding any Tenants in base rent monetary default in excess of ninety (90) days or commercial Tenants in bankruptcy that have not assumed the related Lease(s), (b) tenant reimbursements, percentage and overage rent, and ancillary income (e.g. parking, tenant services, signage, etc.) received from the Properties during the twelve (12) month period immediately preceding such date of determination to the extent such expenses and/or reimbursements are provided for pursuant to the applicable Lease and (c) ancillary income (including, without limitation, parking, tenant services and signage) received during the twelve (12) month period immediately preceding such date of determination (without duplication of any amounts set forth in clauses (a) and (b) above), but excluding (solely for purposes of calculating Net Operating Income) one-time extraordinary income or non-recurring income; provided, that Gross Income from Operations shall be adjusted to include reimbursements for Taxes or Insurance Premiums on account of the Tax and Insurance Adjustment solely to the extent such reimbursements are payable to Borrower by Tenants pursuant to the applicable Leases.

“Ground Lease” shall mean, individually or collectively, as the context may require, the Axiom Ground Lease, the Mariner’s Cove Ground Lease and/or the Xxxxxxx Ground Lease.

“Ground Lease Borrower” shall mean, individually or collectively, as the context may require, the Axiom Ground Lease Borrower, the Mariner’s Cove Ground Lease Borrower and/or the Xxxxxxx Ground Lease Borrower.

“Ground Lease Default Release” shall have the meaning set forth in Section 2.6.1(b) hereof.

“Ground Lease Reserve Account” shall have the meaning set forth in Section 7.1.1 hereof.

“Ground Lease Reserve Fund” shall have the meaning set forth in Section 7.1.1 hereof.

“Ground Leased Property” shall mean, individually or collectively, as the context may require, each Individual Property owned by the Axiom Ground Lease Borrower, the Mariner’s Cove Ground Lease Borrower and/or the Xxxxxxx Ground Lease Borrower.

“Ground Lessor” shall mean, individually or collectively, as the context may require, the Axiom Ground Lease Lessor, the Mariner’s Cove Ground Lease Lessor and/or the Xxxxxxx Ground Lease Lessor.

“Ground Rent” shall have the meaning set forth in Section 7.1.1 hereof.

“Guaranteed Excess Cash Flow” shall have the meaning set forth in the Excess Cash Flow Guaranty.

“Guarantor” shall mean, individually or collectively, as the context may require, (a) Initial Guarantor or (b) from and after a substitution in accordance with the terms hereof and of the Guaranty, as applicable, any Replacement Sponsor Guarantor, any Replacement Affiliate Guarantor and/or any Replacement Guarantor.

“Guarantor Bankruptcy Event” shall have the meaning assigned thereto in Section 8.1(a)(ix) hereof.

“Guarantor Default” shall have the meaning assigned thereto in Section 8.1(a)(xvi) hereof.

“Guarantor Misrepresentation” shall have the meaning assigned thereto in Section 8.1(a)(vi) hereof.

“Guaranty” shall mean that certain Guaranty Agreement, dated as of the Closing Date and executed and delivered by Guarantor in connection with the Loan to and for the benefit of Lender, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Guaranty Assumption” means, with respect to the Guaranty or any Ancillary Guaranty (i)(x) a Replacement Sponsor Guarantor and/or a Replacement Affiliate Guarantor executes a replacement guaranty substantially in the form of the Guaranty or Ancillary Guaranty being replaced or otherwise in a form reasonably satisfactory to Lender or (y) a Guarantor or Ancillary Guarantor that is not an Exiting Guarantor is, or agrees to become, liable pursuant to the Guaranty or such Ancillary Guaranty, as applicable, for all Guaranteed Obligations (as defined in the Guaranty or applicable Ancillary Guaranty executed by the Exiting Guarantor) of the Exiting Guarantor occurring from and after such Transfer or (ii) Borrower delivers a replacement guaranty substantially in the form of the Guaranty or Ancillary Guaranty being replaced or otherwise in a form reasonably satisfactory to Lender, from (x) with respect to the Guaranty, Reserve Guaranty or any Alterations Guaranty, a Replacement Guarantor that Controls Borrower, or is under common Control with Borrower (or if in connection with a Public Sale, a Qualified Public Company) or (y) with respect to any Excess Cash Flow Guaranty, the Debt Yield Trigger Cure Guaranty, Deductible Guaranty or Rate Cap Reserve Guaranty, a Replacement Sponsor Guarantor and/or Replacement Affiliate Guarantor, in each case, which replacement guaranty shall include all liability for all such acts under the Guaranty or applicable Ancillary Guaranty for which Exiting Guarantor was so released. In connection with any Guaranty Assumption, Borrower shall deliver to Lender (A) the organizational documents of the applicable Replacement Guarantor, (B) resolutions authorizing such Replacement Guarantor to enter into either the assumption of the Guaranty or Ancillary Guaranty, as applicable, or the replacement guaranty referenced above and

(C) an enforceability and due execution opinion covering the enforceability of such assumption of the Guaranty or Ancillary Guaranty, as applicable, or such replacement guaranty in the same form and substance as the enforceability opinion delivered to Lender on the Closing Date (or in such other form as reasonably approved by Lender); provided, however, if a Blackstone Fund Entity or any other Approved Sponsor Entity is the Replacement Guarantor, Borrower shall not be required to deliver the organizational documents referenced in clause (A) above.

“Guarantor Release” shall have the meaning assigned thereto in Section 5.2.10(d)(i) hereof.

“Guaranty Release Conditions” shall have the meaning assigned thereto in Section 5.2.10(d)(i) hereof.

“Immaterial Transfer/Release” shall have the meaning set forth in Section 5.2.2(b) hereof.

“Improvements” shall have the meaning set forth in the granting clause of the related Mortgage with respect to each Individual Property.

“Indebtedness” of a Person, at a particular date, means the sum (without duplication) at such date of (a) all indebtedness of such Person (including, without limitation, amounts for borrowed money and indebtedness in the form of mezzanine debt and preferred equity); (b) obligations evidenced by bonds, debentures, notes, or other similar instruments; (c) obligations for the deferred purchase price of property or services (including trade obligations); (d) the face amount of the obligations under letters of credit; (e) obligations under acceptance facilities; (f) all guaranties, endorsements (other than for collection or deposit in the ordinary course of business) and other contingent obligations to purchase, to provide funds for payment, to supply funds, to invest in any Person or entity, or otherwise to assure a creditor against loss; and (g) obligations secured by any Liens, whether or not the obligations have been assumed, provided that “Indebtedness” described in this clause (g) shall not include any Permitted Encumbrances.

“Indemnified Liabilities” shall have the meaning set forth in Section 10.13(b) hereof.

“Indemnified Parties” shall mean (a) Lender, (b) any Affiliate of Lender that has filed any registration statement relating to a Securitization or has acted as the sponsor or depositor in connection with such Securitization, (c) any Affiliate of Lender that acts as an underwriter, placement agent or initial purchaser of Securities issued in such Securitization, (d) any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in such Securitization, (e) each Person who Controls (within the meaning of Section 15 of the Exchange Act) any Person described in any of the foregoing clauses, (f) any Person who is or will have been involved in the origination of the Loan, (g) Servicer, (h) any Person in whose name the Liens created by the Mortgages are or will be recorded, (i) any Person who holds or acquires or has held or acquired a full or partial interest in the Loan (including, but not limited to, investors in the Securities, as well as custodians, trustees and other fiduciaries who hold or have held a full or partial interest in the Loan evidenced for the benefit of third parties), (j) any Person who holds or acquires an interest in the Loan, (k) any successors by merger, consolidation or acquisition of all

or a substantial portion of Lender’s assets and business and (l) the respective officers, directors, shareholders, partners, employees, agents, representatives, Affiliates, participants, successors and assigns of any Person described in any of the foregoing clauses.

“Indemnified Persons” shall have the meaning set forth in Section 9.1.1(c) hereof.

“Independent Director” or “Independent Manager” or “Independent Trustee” means a natural person who has prior experience as an independent director, independent manager, independent trustee or independent member who is provided by CT Corporation, Corporation Service Company, National Registered Agents, Inc., Wilmington Trust Company, Xxxxxxx Management Company, Lord Securities Corporation or, if none of those companies is then providing professional independent directors or independent managers, another nationally-recognized company reasonably approved by Lender that provides professional independent directors or independent managers and other corporate services in the ordinary course of its business and is not an Affiliate of Borrower or any SPE Constituent Entity, and which natural person is duly appointed as an Independent Director or Independent Manager or Independent Trustee, as applicable, and is not, and has never been, and will not while serving as an Independent Director or Independent Manager or Independent Trustee, as applicable, be, any of the following:

(a) a member, partner, equityholder, beneficial owner, manager, director, trustee, officer or employee of Borrower, any SPE Constituent Entity or any of their respective Affiliates (other than as an Independent Director or Independent Manager or Independent Trustee of (i) Borrower or any SPE Constituent Entity or (ii) any Affiliate of Borrower or any SPE Constituent Entity that does not own a direct or indirect ownership interest in the Borrower or SPE Constituent Entity and that is required by a creditor to be a “single purpose bankruptcy remote entity”, provided that (A) such Independent Director or Independent Manager or Independent Trustee is employed by a company that routinely provides professional independent directors or managers in the ordinary course of its business and (B) the fees that such Independent Director or Independent Manager or Independent Trustee earns from serving as an Independent Director or Independent Manager or Independent Trustee of Borrower, each SPE Constituent Entity and any Affiliate of Borrower or any SPE Constituent Entity in any given calendar year constitute, in the aggregate, less than five percent (5%) of the annual income of such Independent Director or Independent Manager or Independent Trustee for that calendar year);

(b) a creditor, supplier or service provider (including provider of professional services) to Borrower, any SPE Constituent Entity, or any of their respective Affiliates (other than a nationally-recognized company that routinely provides professional independent directors or independent managers or independent trustees and other corporate services to Borrower, any SPE Constituent Entity or any of their respective Affiliates in the ordinary course of its business);

(d) a Person that Controls any Person referenced in any of the foregoing clauses (a), (b) or (c).

For purposes of this definition, a “single purpose bankruptcy remote entity” is an entity whose organizational documents contain restrictions on its activities and impose requirements intended to preserve such entity’s separateness that are substantially similar to the provisions of the definition of “Special Purpose Entity” below.

“Index Rate Conversion” shall have the meaning set forth in Section 2.2.7(g) hereof.

“Individual Borrower” shall have the meaning set forth in the introductory paragraph hereto, together with each such Person’s successors and permitted assigns.

“Individual Management Fee Cap” shall have the meaning set forth in Section 4.1.31 hereof.

“Individual Material Adverse Effect” shall mean in respect of an Individual Property, any event or condition that has a material adverse effect on (a) the use, operation, or value of the Individual Property, (b) the business, profits, operations or financial condition of the applicable Borrower, (c) the enforceability, validity, perfection or priority of the lien of the Mortgage or the other Loan Documents, or (d) the ability of the applicable Individual Borrower to satisfy any of its material obligations under the Loan Documents applicable to such Individual Borrower.

“Individual Property” shall mean each parcel or parcels of real property listed on Schedule 1.1(a), the Improvements thereon and all personal property owned by an Individual Borrower (or leased pursuant to the Fremont Ground Lease, Ground Lease or a PILOT Lease) and encumbered by a Mortgage, together with all rights pertaining to such property and Improvements, as more particularly described in the granting clauses of each such Mortgage and referred to therein as the “Property”. For the avoidance of doubt, “Property” and “Individual Property” shall not include any personal property owned by a Person which is not Borrower.

“Initial 30% Prepayment” shall have the meaning set forth in Section 2.4.1(b) hereof.

“Initial Guarantor” shall mean AI REIT.

“Initial Maturity Date” shall mean the Payment Date occurring in August, 2026.

“Initial Sponsor” shall mean initially, individually or collectively as the context requires, (a) AI REIT, and (b) upon or following a Permitted Assumption, Transfer or assignment to another Blackstone Fund Entity, the applicable Blackstone Fund Entity and any parallel partnerships or alternative investment vehicles comprising the related Blackstone Fund Entity and any co-investment or managed vehicles Controlled by or under common Control with the foregoing entities.

“Initial Strike Price” shall have the meaning set forth in the definition of “Strike Price” hereof.

“Insolvency Opinion” shall mean that certain non-consolidation opinion letter dated as of the Closing Date delivered by Xxxxxx Xxxxxx LLC in connection with the Loan.

“Insolvency Opinion Affiliate” shall mean any Person that (i) directly or indirectly, Controls Borrower or (ii) directly or indirectly owns more than forty-nine percent (49%) of the beneficial interests in Borrower.

“Insurance Premiums” shall have the meaning set forth in Section 6.1(b) hereof.

“Insurance Proceeds” shall have the meaning set forth in Section 6.4(b) hereof.

“Insurance Reserve Funds” shall have the meaning set forth in Section 7.2.1 hereof.

“Interest Period” shall mean, with respect to each Component, (a) the period commencing on (and including) the Closing Date (or such earlier date on which interest begins to accrue pursuant to any escrow letter between Borrower and Lender) and ending on (and including) August 14, 2024 and (b) thereafter, the period commencing on (and including) the fifteenth (15^th) day of each calendar month during the term of the Loan and ending on (and including) the fourteenth (14^th) day of the following calendar month. Each Interest Period as set forth in clause (b) above shall be a full month and shall not be shortened by reason of any payment of the Loan prior to the expiration of such Interest Period.

“Interest Rate” shall mean the rate at which the Outstanding Loan Amount bears interest from time to time in accordance with Section 2.2 hereof.

“Interest Rate Protection Agreement” shall mean, collectively, one or more interest rate protection agreements (together with the confirmation and schedules relating thereto), between an Acceptable Counterparty and Borrower obtained by one or more Individual Borrowers as and when permitted or required pursuant to Section 2.2.7 hereof. After delivery of a Replacement Interest Rate Protection Agreement to Lender, the term “Interest Rate Protection Agreement” shall be deemed to mean such Replacement Interest Rate Protection Agreement and such Replacement Interest Rate Protection Agreement shall be subject to all requirements applicable to the Interest Rate Protection Agreement.

“Interest Shortfall” shall mean, with respect to any repayment or prepayment of any portion of the Loan (including a repayment on the Maturity Date) that is subject to a Rated Securitization and which is made during the Interest Shortfall Period, the interest that would have accrued on such portion of the Loan (absent such repayment or prepayment) from and including the date on which such repayment or prepayment occurs through and including the last day of the Interest Period relating to the Payment Date following the date of such prepayment.

“Interest Shortfall Period” shall mean, following a Rated Securitization of the Loan, the period beginning on the date immediately following each Payment Date and ending on the date which is immediately prior to, but not including, the first Determination Date immediately following such Payment Date.

“KBRA” shall mean Xxxxx Bond Rating Agency, LLC.

“KYC Searches” shall mean, with respect to any Person, customary and satisfactory “know your customer” compliance screening searches of such Person consisting of a search and evaluation of (x) OFAC sanctions and other government-required sanctions lists, (y) negative news screening of such Person associated with material derogatory information that could reasonably result in anti-money laundering risk to Lender related to terrorist or other financial crimes and (z) such customary statutes and other customary information reasonably required by Lender to confirm that such Person is not an Embargoed Person.

“Lease” shall mean (a) any lease, sublease or subsublease, letting, license, concession or other agreement (whether written or oral and whether now or hereafter in effect) pursuant to which any Tenant is granted a possessory interest in, or right to use or occupy all or any portion of any space in any Individual Property entered into by or on behalf of Borrower but excluding (i) the Excluded Leases, (ii) the Fremont Ground Lease, (iii) the Ground Lease, (iv) any PILOT Lease and (v) Permitted Equipment Leases, (b) every modification, amendment or other supplemental or side agreement relating to the agreements described in clause (a) above, and (c) every guarantee of the performance and observance of the covenants, conditions and agreements to be performed and observed by the other party thereto with respect to the agreements described in clause (a) above. For the avoidance of doubt, in no event shall the Excluded Leases, the Fremont Ground Lease, any Ground Lease, any PILOT Lease, or Permitted Equipment Leases constitute a Lease.

“Lease and Tenant Information” shall mean information regarding the Leases and the occupancy of or payment of rent by the Tenants pursuant to such Leases (including, without limitation, any Tenant communication that may impact occupancy or payment of rent (other than an estoppel certificate delivered by such Tenant for the benefit of Lender)).

“Legal Requirements” shall mean, with respect to each Individual Property, all federal, state, county, municipal and other governmental statutes, laws, rules, orders, regulations, ordinances, judgments, decrees and injunctions of Governmental Authorities (including, but not limited to, the Americans With Disabilities Act of 1990, the Fair Housing Amendments Act of 1988, and all federal, state and local laws and ordinances related to handicapped access, and all rules, regulations and orders issued pursuant thereto (“Access Laws”)) affecting such Individual Property or any part thereof, or the construction, use, alteration or operation thereof, or any part thereof, whether now or hereafter enacted and in force, and all permits, licenses and authorizations and regulations relating thereto, at any time in force affecting Borrower, such Individual Property or any part thereof, including, without limitation, any which may (a) require repairs, modifications or Alterations in or to such Individual Property or any part thereof, or (b) in any way limit the use and enjoyment thereof.

“Lender” shall have the meaning set forth in the introductory paragraph hereto.

“Lender Documents” shall mean any agreement among Lender, the Mezzanine Lender and/or any participant or any fractional owner of a beneficial interest in the Loan or the Mezzanine Loan relating to the administration of the Loan, the Mezzanine Loan, the Loan Documents or the Mezzanine Loan Documents, including without limitation any intercreditor agreements, co-lender agreements, trust and servicing agreements, pooling and servicing agreements and participation agreements.

“Lender’s Allocation” shall mean a fraction, expressed as a percentage as of the date of determination, the numerator of which is the Outstanding Loan Amount and the denominator of which is the aggregate of the Outstanding Loan Amount and, if any, the Outstanding Mezzanine Loan Amount.

“Letter of Credit” shall mean an irrevocable, unconditional, transferable, clean sight draft letter of credit having an initial term of not less than one (1) year, in favor of Xxxxxx and entitling Lender to draw thereon in New York, New York, based solely on a statement that Xxxxxx has the right to draw thereon executed by an officer or authorized signatory of Lender. A Letter of Credit must be issued by an Eligible Institution.

“Liability Percentage” shall mean, (x) prior to a Several Liability Event, one hundred percent (100%) and (y) during the continuance of a Several Liability Event, the “Liability Percentage” (as defined in the Guaranty or Ancillary Guaranty, as applicable) of the applicable Guarantor or Ancillary Guarantor. In no instance shall the Liability Percentage of all entities comprising a Guarantor or Ancillary Guarantor be permitted to be, in the aggregate, less than (or greater than) one hundred percent (100%).

“Licenses” shall have the meaning set forth in Section 4.1.22 hereof.

“Lien” shall mean, with respect to each Individual Property, any mortgage, deed of trust, deed to secure debt, indemnity deed of trust, lien, pledge, hypothecation, assignment, security interest, or any other encumbrance, charge or transfer of, on or affecting Borrower, the related Individual Property, any portion thereof or any interest therein, including, without limitation, any conditional sale or other title retention agreement, any financing lease having substantially the same economic effect as any of the foregoing, the filing of any financing statement, and mechanic’s, materialmen’s and other similar liens and encumbrances.

“Loan” shall mean the loan made by Xxxxxx to Borrower pursuant to this Agreement and evidenced and secured by the Note and the other Loan Documents.

“Loan Documents” shall mean, collectively, this Agreement, the Note, the Mortgages, the Guaranty, the Environmental Indemnity, the Assignment of Management Agreement, the Closing Date Lockbox Agreement, the Cash Management Agreement, the Contribution Agreement, the Post-Closing Obligations Letter, the Assignment of Interest Rate Protection Agreement, the Excess Cash Flow Guaranty, the Alterations Guaranty, any PILOT Bond Pledge Agreement, the Debt Yield Trigger Cure Guaranty, the Deductible Guaranty, the Reserve Guaranty and the Rate Cap Reserve Guaranty, in each instance, if applicable and all other documents executed and/or delivered in favor of Lender in connection with the Loan, as each of the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Loan Party” shall mean Borrower, any SPE Constituent Entity and Guarantor.

“Loan Split Documents” shall have the meaning set forth in Section 9.1.2(b) hereof.

“Loan Splitting” shall have the meaning set forth in Section 9.1.2(a) hereof.

“Loan-to-Value Ratio” shall mean, as of the date of its calculation, the ratio (expressed as a percentage) of (a) the then current Outstanding Loan Amount as of the date of such calculation to (b) the fair market value of the Properties (for purposes of the REMIC provisions, only, based solely on real property and excluding any personal property or going concern value) as established by Borrower to Lender’s reasonable satisfaction using any commercially reasonable method permitted to a REMIC Trust (which may include (i) an existing appraisal if such release occurs within twenty-four (24) months of the appraisal date, (ii) a new appraisal, (iii) a broker’s price opinion or (iv) other written determination of value using a commercially reasonable valuation method).

“Lockbox Account” shall have the meaning set forth in Section 2.7.1 hereof.

“Lockbox Agreement” shall mean the Closing Date Lockbox Agreement or any Replacement Lockbox Agreement, as applicable, in each case, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Lockbox Bank” shall mean Xxxxx Fargo Bank, National Association or any Replacement Lockbox Bank.

“Lockbox Consolidation” shall have the meaning set forth in Section 2.7.1(g) hereof.

“Losses” shall mean any actual liabilities, losses, damages, obligations, fees, interest, penalties and actual out-of-pocket costs and expenses (including reasonable attorneys’ fees); provided that Losses shall not include (i) special, consequential, exemplary or punitive damages and/or lost profits and diminution in value claims, except to the extent Lender is required in a final judgment to pay the same to a third party (without duplication) and (ii) any of the forgoing to the extent resulting from the gross negligence, illegal acts, fraud or willful misconduct of the Person otherwise entitled to indemnification or recourse for such Losses.

“Low Debt Yield Release Amount” shall have the meaning set forth in Section 2.6.1(a)(v) hereof.

“Management Agreement” shall mean the Existing Management Agreement or, if the context requires, a Replacement Management Agreement pursuant to which a Qualified Manager is managing one or more of the Individual Properties (including, any parking lot, parking garage, parking facility or parking area, as applicable) in accordance with the terms and provisions of this Agreement.

“Management Default Election Notice” shall have the meaning set forth in Section 8.1(a)(xiv) hereof.

“Manager” shall mean Existing Manager or, if the context requires, a Qualified Manager who is managing one or more of the Individual Properties (including, any parking lot, parking garage, parking facility or parking area, as applicable) in accordance with the terms and provisions of this Agreement pursuant to a Replacement Management Agreement.

“Mariner’s Cove Ground Lease” shall mean that certain Second Amended and Restated Ground Lease by and between Mariner’s Cove Ground Lessor, as lessor, and Mariner’s Cove Ground Lease Borrower, as lessee, effective as of July 1, 2015, as the same may hereafter be amended, restated, supplemented or modified from time to time in accordance with this Agreement.

“Mariner’s Cove Ground Lease Borrower” shall mean Lincoln Mariners Associates Limited, a California limited partnership.

“Mariner’s Cove Ground Lease Permitted Modifications” shall mean one or more of the modifications to the Mariner’s Cove Ground Lease described on Schedule 5.1.31.

“Mariner’s Cove Ground Lessor” shall mean the Housing Authority of the City of San Diego, a body corporate and politic.

“Mariner’s Cove Property” shall mean the Individual Property which is leased by Mariner’s Cove Ground Lease Borrower pursuant to the Mariner’s Cove Ground Lease.

“Material Action” shall have the meaning set forth in paragraph (xii) of the definition of “Special Purpose Entity” below.

“Maturity Date” shall mean the Initial Maturity Date or, following an exercise by Borrower of one (1) or more of the Extension Options described in Section 2.8 hereof, the Extended Maturity Date, or such other date on which the final payment of principal of the Note becomes due and payable as therein or herein provided, whether at such stated maturity date, by declaration of acceleration, or otherwise.

“Maximum Legal Rate” shall mean the maximum nonusurious interest rate, if any, that at any time or from time to time may be contracted for, taken, reserved, charged or received on the indebtedness evidenced by the Note and as provided for herein or the other Loan Documents, under the laws of such state or states whose laws are held by any court of competent jurisdiction to govern the interest rate provisions of the Loan.

“MC Reserve Account” shall have the meaning set forth in Section 7.7 hereof.

“MC Reserve Funds” shall have the meaning set forth in Section 7.7 hereof.

“Mezzanine Borrower” shall mean, if applicable, the New Mezzanine Borrower.

“Mezzanine Borrower DY Deficiency Reserve” shall have the meaning set forth in Section 2.6.1(a)(v) hereof.

“Mezzanine Debt Service” shall mean, with respect to any particular period of time, interest payments then due under the Mezzanine Loan.

“Mezzanine Debt Yield Cure Collateral” shall have the meaning ascribed to such term in the definition of “Debt Yield Trigger Event Cure” hereof.

“Mezzanine Debt Yield Trigger Cure Guaranty” shall have the meaning ascribed to such term in the definition of “Debt Yield Trigger Event Cure” hereof.

“Mezzanine Lender” shall mean, if applicable, the lender in connection with a New Mezzanine Loan, together with their respective successors and assigns.

“Mezzanine Loan” shall mean, if applicable, the New Mezzanine Loan.

“Mezzanine Loan Agreement” shall mean, if applicable, the loan agreement entered into in connection with any New Mezzanine Loan, as each of the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Mezzanine Loan Default” shall mean, if applicable, an “Event of Default” under any New Mezzanine Loan Documents.

“Mezzanine Loan Documents” shall mean, if applicable, the loan documents entered into in connection with a New Mezzanine Loan, as each of the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Mezzanine Mandatory Prepayment Amount” shall mean the “Mandatory Prepayment Amount” as such term is defined in the Mezzanine Loan Agreement.

“Mezzanine Release Amount” shall mean, if applicable, the “Release Amount” as defined in the New Mezzanine Loan Agreement.

“Minimum Capital Improvements” shall have the meaning set forth in the Mariner’s Cove Ground Lease.

“Minimum Disbursement Amount” shall mean Twenty‑Five Thousand and No/100 Dollars ($25,000.00).

“Monthly Debt Service Payment Amount” shall mean, on each Payment Date, the amount of interest which accrues on each Component of the Loan for the related Interest Period.

“Monthly Rate Cap Reserve Amount” shall mean, with respect to any Interest Period, an amount equal to the product of (a) the Strike Price Delta for the initial term of the Loan (or the related Extension Term, if applicable), (b) the Outstanding Loan Amount, and (c) the quotient of (i) the number of days in such Interest Period for which the calculation is being determined and (ii) 360, as the same shall be reasonably calculated by Lender.

“Monthly Rate Cap Reserve Reduction Amount” shall mean an amount equal to (x) the Rate Cap Reserve Amount Cash Share multiplied by (y) the Rate Cap Reserve Amount divided by (z) the number of Interest Periods for which an Interest Rate Protection Agreement was purchased at an Alternate Strike Price.

“Monthly Strike Price Differential Amount” shall mean, with respect to any Interest Period, an amount equal to the product of (a) the Applicable Index Rate) for the applicable Interest Period less the Applicable Strike Price, (b) the Outstanding Loan Amount and (c) the quotient of

(i) the number of days in such Interest Period for which the calculation is being determined and (ii) 360, as the same shall be reasonably calculated by Xxxxxx.

“Moody’s” shall mean Xxxxx’x Investors Service, Inc.

“Mortgage” shall mean, with respect to each Individual Property, that certain Mortgage/Deed of Trust/Deed to Secure Debt, Assignment of Leases and Rents, Fixture Filing and Security Agreement, dated as of the Closing Date, executed and delivered by the applicable Borrower to Lender (or to the Trustee defined therein for the benefit of Lender, as applicable) as security for the Loan and encumbering an Individual Property, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Mortgage Mandatory Prepayment Amount” shall have the meaning set forth in Section 2.4.2(a) hereof.

“Net Operating Income” shall mean, for any date of determination, the amount obtained by subtracting (i) Operating Expenses for the previous twelve (12) month period from (ii) Gross Income from Operations. For reference purposes, a sample calculation of Net Operating Income (including a sample calculation of the assumed management fee) is attached as Schedule 1.1(k) to this Agreement.

“Net Proceeds” shall have the meaning set forth in Section 6.4(b) hereof.

“Net Proceeds Deficiency” shall have the meaning set forth in Section 6.4(b)(vi) hereof.

“Net Proceeds Prepayment” shall have the meaning set forth in Section 6.4(e) hereof.

“Net Sales Proceeds” shall mean one hundred percent (100%) of the gross proceeds from the sale of an Individual Property to be received by or on behalf of the applicable Individual Borrower in respect of such sale, less and except: any reasonable and customary brokerage fees and sales commissions payable to third parties, transfer, stamp and/or intangible taxes, reasonable, customary and market closing costs and any other reasonable and customary third party costs and expenses actually incurred by such Borrower in connection with such sale, as evidenced by a settlement statement or customary invoice.

“Net Worth” shall have the meaning set forth in the Guaranty.

“Net Worth Threshold” shall mean $400,000,000.

“New Lockbox Account” shall have the meaning set forth in Section 2.7.1(h) hereof.

“New Mezzanine Borrower” shall mean one or more special purpose vehicles that serve as borrowers under the New Mezzanine Loan and own the limited liability company interests of Borrower.

“New Mezzanine Lender” shall mean any holder of the New Mezzanine Loan, together with their respective successors and/or assigns.

“New Mezzanine Loan Agreement” shall mean the loan agreement entered into in connection with the New Mezzanine Loan, as the same may be amended, restated, replaced, supplemented or modified, from time to time.

“New Mezzanine Loan” shall have the meaning set forth in Section 2.10 hereof.

“New Mezzanine Loan Documents” shall mean the “Loan Documents” under the New Mezzanine Loan Agreement.

“New Mezzanine Loan Default” shall mean “Event of Default” under the New Mezzanine Loan Documents.

“New Note” shall have the meaning set forth in Section 9.1.2(b) hereof.

“New Note Amount” shall have the meaning set forth in Section 9.1.2(b) hereof.

“New TRS Borrower” shall have the meaning set forth in Section 10.29 hereof.

“Non-Conforming Policy” shall have the meaning set forth in Section 6.1(h) hereof.

“Non-Consenting Lender” shall have the meaning set forth in Section 10.30(f) hereof.

“Non-Disturbance Agreement” shall have the meaning set forth in Section 5.1.20 hereof.

“Non-Excluded Taxes” shall mean (a) Section 2.9 Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any Loan Party under any Loan Document, and (b) to the extent not otherwise described in clause (a), Other Taxes.

“Non-Pledged Account” shall have the meaning set forth in Section 2.7.1(c) hereof.

“Non-Recourse Assumption” shall have the meaning set forth in Section 5.2.10(d)(i) hereof.

“Non-U.S. Lender” shall have the meaning set forth in Section 2.9(e)(i) hereof.

“Note” shall mean, individually or collectively, as the context may require, Note A-1, Note A-2, Note A-3, Note A-4, Note A-5, Note A-6, Note A-7, Note A-8 and Note A-9.

“Note A-1” shall mean that certain Promissory Note A-1 of even date herewith in the principal amount of Five Hundred Eighty-Four Million Four Hundred Thirty-Three Thousand Nine Hundred Sixty-Two and 00/100 Dollars ($584,433,962.00), made by Borrower in favor of Xxxxx, as the same may be amended, restated, replaced, supplemented, split or otherwise modified from time to time.

“Note A-2” shall mean that certain Promissory Note A-2 of even date herewith in the principal amount of Two Hundred Seventy-Eight Million Three Hundred One Thousand Eight Hundred Eighty-Seven and 00/100 Dollars ($278,301,887.00), made by Borrower in favor of MS, as the same may be amended, restated, replaced, supplemented, split or otherwise modified from time to time.

“Note A-3” shall mean that certain Promissory Note A-3 of even date herewith in the principal amount of One Hundred Sixty-Six Million Nine Hundred Eighty-One Thousand One Hundred Thirty-Two and 00/100 Dollars ($166,981,132.00), made by Borrower in favor of SG, as the same may be amended, restated, replaced, supplemented, split or otherwise modified from time to time.

“Note A-4” shall mean that certain Promissory Note A-4 of even date herewith in the principal amount of Four Hundred Thirty-One Million Three Hundred Sixty-Seven Thousand Nine Hundred Twenty-Four and 50/100 Dollars ($431,367,924.50), made by Borrower in favor of BMO, as the same may be amended, restated, replaced, supplemented, split or otherwise modified from time to time.

“Note A-5” shall mean that certain Promissory Note A-5 of even date herewith in the principal amount of Three Hundred Thirty-Three Million Nine Hundred Sixty-Two Thousand Two Hundred Sixty-Four and 00/100 Dollars ($333,962,264.00), made by Borrower in favor of JPM, as the same may be amended, restated, replaced, supplemented, split or otherwise modified from time to time.

“Note A-6” shall mean that certain Promissory Note A-6 of even date herewith in the principal amount of Two Hundred Seventy-Eight Million Three Hundred One Thousand Eight Hundred Eighty-Seven and 00/100 Dollars ($278,301,887.00), made by Borrower in favor of Barclays, as the same may be amended, restated, replaced, supplemented, split or otherwise modified from time to time.

“Note A-7” shall mean that certain Promissory Note A-7 of even date herewith in the principal amount of Four Hundred Thirty-One Million Three Hundred Sixty-Seven Thousand Nine Hundred Twenty-Four and 50/100 Dollars ($431,367,924.50), made by Borrower in favor of GS, as the same may be amended, restated, replaced, supplemented, split or otherwise modified from time to time.

“Note A-8” shall mean that certain Promissory Note A-8 of even date herewith in the principal amount of Two Hundred Seventy-Eight Million Three Hundred One Thousand Eight Hundred Eighty-Seven and 00/100 Dollars ($278,301,887.00), made by Borrower in favor of BofA, as the same may be amended, restated, replaced, supplemented, split or otherwise modified from time to time.

“Note A-9” shall mean that certain Promissory Note A-9 of even date herewith in the principal amount of One Hundred Sixty-Six Million Nine Hundred Eighty-One Thousand One Hundred Thirty-Two and 00/100 Dollars ($166,981,132.00), made by Borrower in favor of GACC, as the same may be amended, restated, replaced, supplemented, split or otherwise modified from time to time.

“Notional Amount Reduction” shall have the meaning set forth in Section 2.2.7(b) hereof.

“Officer’s Certificate” shall mean a certificate delivered to Lender by Borrower which is signed by an authorized officer of Borrower or the general partner or the managing member or sole member of Borrower, as applicable.

“Open Prepayment Date” shall mean the day immediately preceding the Payment Date occurring in August of 2025. With respect to any prepayment of any portion of the Loan that is subject to a Rated Securitization and is made after the Payment Date in July, 2025, but on or prior to the Open Prepayment Date, the Spread Maintenance Premium shall be zero.

“Operating Expenses” shall mean, without duplication, as of any date of determination, all ordinary costs and expenses of Borrower with respect to the operation, management, maintenance, repair and use of the Properties, Taxes and Insurance Premiums for the twelve (12) month period immediately preceding the date of determination; adjusted to reflect an assumed management fee equal to the greater of (x) two percent (2.0%) of Gross Income from Operations and (y) the actual management fee provided pursuant to the Management Agreement (or if there is a sub-management agreement in place, the sub-management agreement); provided, however, at the election of Borrower (which election may be changed at any time upon written notice to Lender) (the “Management Fee Cap Election”), if the Capped Actual Management Fee Condition has been satisfied with respect to any Property, for purposes of calculating Net Operating Income only with respect to such Property following the Closing Date, the actual management fees for such Property shall equal the lesser of (A) the actual management fee provided pursuant to the Management Agreements with respect to such Property (or if there is a sub-management agreement in place, the sub-management agreement) and (B) the Base Fee; provided, further, however, that such expenses shall not include (i) non-cash items (other than expenses that are due and payable but not yet paid), (ii) interest, principal or any other sums due and owing with respect to the Loan or the Mezzanine Loan, (iii) deposits into reserve accounts required to be maintained pursuant to the Loan Documents or the Mezzanine Loan Documents, (iv) income taxes or other taxes in the nature of income taxes, (v) extraordinary expenses, extraordinary losses or non-recurring expenses, (vi) Capital Expenditures or capital reserves, (vii) leasing commissions (including any in-house leasing commissions incurred by Initial Sponsor or its Affiliates), (viii) intentionally omitted or (ix) without duplication of any amounts set forth in (i) through (viii) hereof, expenses that are subject to reimbursement by any third party or under any insurance policy; provided, further, that the foregoing shall be adjusted as of the applicable date of determination (A) for any known changes in Taxes or Insurance Premiums that will take effect during the succeeding twelve (12) months following the applicable date of determination (the “Tax and Insurance Adjustment”), and (B) to include Capital Expenditures at an assumed rate of Two Hundred Fifty and No/100 Dollars ($250.00) per residential unit at the Properties.

“Organizational Documents” means as to any Person, the certificate of organization or certificate of formation and operating agreement or limited liability company agreement with respect to a limited liability company, the certificate of limited partnership and limited partnership agreement with respect to a limited partnership, or any other organizational or governing documents of such Person.

“Other Blackstone Fund” shall have the meaning set forth in the definition of “Blackstone Fund Entity”.

“Other Charges” shall mean all ground rents (other than Ground Rent), maintenance charges, Condominium association fees (if any), impositions other than Taxes (or other Section 2.9 Taxes), amounts due under any PILOT Lease (excluding any payments which do not require any out-of-pocket expense to be incurred by Borrower, including, without limitation, payments which are made by book entry), and any other charges, including, without limitation, vault charges and license fees for the use of vaults, chutes and similar areas adjoining any Individual Property, now or hereafter levied or assessed or imposed against such Individual Property or any part thereof.

“Other Obligations” shall have the meaning as respectively set forth in the Mortgages.

“Other Taxes” shall have the meaning set forth in Section 2.9(b) hereof.

“Otherwise Rated Insurers” shall have the meaning set forth in Section 6.1(b) hereof.

“Outstanding Loan Amount” shall mean, as of any date of determination, the sum of (i) the original principal amount of the Loan, less (ii) the amount of the Loan which has been prepaid or repaid by Borrower as of such date in accordance with the terms of this Agreement.

“Outstanding Mezzanine Loan Amount” shall mean, as of any date of determination, (i) the amount of any Mezzanine Loan, less (ii) the amount of the Mezzanine Loan which has been prepaid or repaid by the Mezzanine Borrower as of such date in accordance with the terms of the Mezzanine Loan Agreement.

“PACE Debt” means any amounts owed in respect of energy retrofit lending programs, commonly known as “PACE Loans”. For avoidance of doubt, PACE Debt is not Permitted Debt and Liens securing PACE Debt are not Permitted Encumbrances.

“Payment Date” shall mean, with respect to any Component, the ninth (9^th) day of each calendar month during the term of the Loan, until and including the Maturity Date. The parties hereto acknowledge that the first Payment Date shall be September 9, 2024.

“Periodic Term SOFR Determination Day” shall have the meaning set forth in the definition of “Term SOFR.”

“Permitted Adjustment Event” shall mean (i) any voluntary prepayment of the Loan made after a Rated Securitization in accordance with Section 2.4.1 or 2.6.1 (other than any Initial 30% Prepayment), (ii) any mandatory prepayment of the Loan under Section 2.4.2 in connection with a Casualty or Condemnation, (iii) any application of principal during the continuance of an Event of Default or (iv) if a Mezzanine Loan is outstanding, a voluntary prepayment of principal of the Mezzanine Loan (or any components of the Mezzanine Loan) on a reverse sequential basis without a corresponding prepayment of the Loan in accordance with the terms and conditions hereof.

“Permitted Assumption” shall have the meaning set forth in Section 5.2.10(e) hereof.

“Permitted Assumption Party” shall mean (x) one or more Qualified Transferees and/or Person(s) Controlled by a Qualified Transferee and/or (y) any entity comprising Sponsor and/or any other Approved Sponsor Entity.

“Permitted Debt” shall mean, collectively, (a) the Note and the other obligations, indebtedness and liabilities specifically provided for in any Loan Document and secured by the Mortgages and the other Loan Documents, (b) obligations under Leases, the Fremont Ground Lease and Ground Leases existing on the Closing Date and any amendments thereto entered into in accordance with the terms and conditions of this Agreement and obligations under other Leases which are entered into in accordance with the terms and conditions of this Agreement, (c) trade payables, Permitted Equipment Leases or other similar arrangements incurred in the ordinary course of Borrower’s business, not secured by Liens on any one or more Individual Properties (other than Liens being properly contested in accordance with the provisions of this Agreement), provided that such trade payables, Permitted Equipment Leases and other similar arrangements (i) do not, in the aggregate, exceed at any one time five percent (5%) of the original principal balance of the Loan and, if any Mezzanine Loan is then outstanding, the original principal balance of the Mezzanine Loan, (ii) are normal and reasonable under the circumstances, (iii) are payable by or on behalf of Borrower for or in respect of the operation of such Individual Property in the ordinary course of the operation of Borrower’s business or the routine administration of such Borrower’s business, (iv) are paid within sixty (60) days following the later of (A) the date on which such amount is incurred or (B) the date invoiced, and (v) are not evidenced by a note, (d) Taxes and Other Charges not yet delinquent or being contested in good faith in accordance with the terms and conditions hereof, (e) Insurance Premiums not yet delinquent, (f) Capital Expenditures incurred in accordance with the Loan Documents, (g) utility charges (including payments under power purchase contracts) and/or other property charges not yet delinquent or being contested in good faith in accordance with the terms and conditions hereof, provided, such charges and payments do not subject the Individual Property to PACE Debt or otherwise result in an unpermitted monetary Lien against the Individual Property, (h) Permitted Encumbrances, (i) Permitted POP Obligations, (j) obligations under any PILOT Lease and (k) customary and ordinary course indemnification of Manager in connection with the operation of the Properties. Nothing contained herein shall be deemed to require Borrower to pay any trade payable, so long as Borrower is in good faith at its own expense, and by proper legal proceedings, diligently contesting the validity, amount or application thereof, provided that in each case, at the time of the commencement of any such action or proceeding, and during the pendency of such action or proceeding (w) no Event of Default shall exist and be continuing hereunder, (x) no Individual Property nor any part thereof or interest therein will be in imminent danger of being sold, forfeited, or lost, (y) Borrower shall furnish such security as may be required in the proceeding, or as may be reasonably requested by Xxxxxx, to insure the payment of any amounts contested, together with all interest and penalties thereon to the extent that the aggregate amount at issue exceeds $12,000,000 (excluding any amounts required to be paid directly by Tenants) (provided, (A) in no event shall Borrower be required to furnish any such security in connection with any such contest to the extent the amounts at issue are actually paid by Borrower prior to delinquency (including if such payment is made under protest) and Borrower delivers to Lender receipts for payment or other evidence reasonably satisfactory to Lender that such amounts are actually paid by Borrower

prior to delinquency (including if such payment is made under protest)) and (B) in no event shall the security requested by Lender be in an amount greater than one hundred percent (100%) of such excess amount that is reasonably expected by Lender to be payable in the event such contest is unsuccessful (including all reasonable out-of-pocket costs and expenses), and (z) such contest operates to suspend collection or enforcement, as the case may be, of the contested amount (or Borrower pays the same under protest). For the avoidance of doubt, nothing herein shall prohibit any direct or indirect owner of Borrower from incurring indebtedness not secured by the collateral for the Loan.

“Permitted Encumbrances” shall mean, with respect to an Individual Property, collectively, (a) the Liens and security interests created by the Loan Documents, (b) all Liens, encumbrances and other matters disclosed in the applicable Title Insurance Policy relating to such Individual Property or any part thereof (including Liens disclosed in the title commitment for which Xxxxxx has either received affirmative coverage or for which the title insurance company has received adequate protections to remove such items as exceptions in the Title Insurance Policy and such item was so removed), (c) Liens, if any, for Section 2.9 Taxes, Taxes and Other Charges imposed by any Governmental Authority not yet delinquent or that are being contested in accordance with the terms hereof, (d) such other title and survey exceptions as Lender has approved or may approve in writing in Lender’s sole discretion, (e) all easements, reciprocal easements, rights-of-way, restrictions and other similar non-monetary encumbrances recorded against and affecting such Individual Property and that do not have, or could not reasonably be expected to have an Individual Material Adverse Effect, (f) rights of Tenants, as Tenants only, and rights of tenants under Excluded Leases, along with such rights of first refusal, rights of first offer and tenant options which are granted to tenants under Leases and Excluded Leases existing as of the date hereof or under Leases entered into following the date hereof in accordance with Section 5.1.20 hereof, (g) any easements, rights of way, restrictions and other similar non-monetary encumbrances recorded against and affecting such Individual Property as a result of any Release Parcel/Rights in accordance with Section 2.6.2, if applicable, (h) mechanics’, materialmens’ or similar Liens in each case only if such Liens are discharged or bonded over within sixty (60) days of their filings or that are being contested in accordance with the terms hereof or do not materially and adversely affect the value or use of such Individual Property or Borrower’s ability to repay the Loan, (i) Liens related to Permitted Equipment Leases that satisfy the conditions set forth in the definition of “Permitted Debt”, (j) all easements, rights-of-way and other non-monetary encumbrances, if any, created by or resulting from or reasonably necessary to complete any Approved Alterations or any Immaterial Transfer/Release, (k) all easements, rights-of-way, restrictions and other similar non-monetary encumbrances created or resulting from any Transfer or grant in accordance with Section 5.2.2(b) hereof, (l) deed restrictions and other agreements permitted under Section 5.2.6 hereof, (m) encumbrances contemplated to be created as described on Schedule 1.1(n) attached hereto, and (n) obligations pursuant to the Fremont Ground Lease, the Ground Leases and any PILOT Lease.

“Permitted Equipment Lease” shall mean a lease or financing that is (a) entered into on arms-length terms and conditions in the ordinary course of Borrower’s business, (b) related to Personal Property which will be (i) used in connection with the operation and maintenance of the Property in the ordinary course of Borrower’s business and (ii) readily replaceable without material interference or interruption to the operation of the applicable Individual Property and (c) in the case of a financing, secured only by the financed equipment or Personal Property.

“Permitted Equipment Transfer” shall mean removal or other Transfer by Borrower of Equipment, Fixtures and/or Personal Property that is either being replaced or that is no longer necessary in connection with the operation of the applicable Individual Property, provided that such removal or other Transfer will not (i) materially adversely affect the value of such Individual Property, (ii) materially adversely impair the utility of such Individual Property or (iii) result in a reduction or abatement of, or right of offset against, the Rents under any Lease in respect of such Individual Property.

“Permitted Investments” shall mean any one or more of the following obligations or securities acquired at a purchase price of not greater than par, including those issued by Servicer, or any trustee under any Securitization or any of their respective Affiliates, payable on demand or having a maturity date not later than the Business Day immediately prior to the first Payment Date following the date of acquiring such investment and meeting one of the appropriate standards set forth below:

(a) the following obligations of, or the following obligations directly and unconditionally guaranteed as to principal and interest by, the U.S. government or any agency or instrumentality thereof, when such obligations are backed by the full faith and credit of the United States of America and have maturities not in excess of one year:

(i) U.S. Treasury obligations (all direct or fully guaranteed obligations);

(ii) U.S. Department of Housing and Urban Development public housing agency bonds (previously referred to as local authority bonds);

(iii) Federal Housing Administration debentures;

(iv) Government National Mortgage Association (GNMA) guaranteed mortgage-bank securities or participation certificates;

(v) RefCorp debt obligations; and

(vi) SBA-guaranteed participation certificates and guaranteed pool certificates;

(b) federal funds, unsecured certificates of deposit, time deposits, banker’s acceptances, and repurchase agreements having maturities of not more than 90 days of any commercial bank organized under the laws of the United States of America or any state thereof or the District of Columbia, the short-term debt obligations of which are rated (a) “A-1+” (or the equivalent) by S&P and, if it has a term in excess of three months, the long-term debt obligations of which are rated “AAA” (or the equivalent) by S&P, and that (1) is at least “adequately capitalized” (as defined in the regulations of its primary Federal banking regulator) and (2) has Tier 1 capital (as defined in such regulations) of not less than $1,000,000,000, (b) in one of the following Moody’s rating categories: (1) for maturities less than one month, a long-term rating of “A2” or a short-term rating of “P-1”, (2) for maturities between one and three months, a long-term rating of “A1” and a short-term rating of “P-1”, (3) for maturities between three months to six months, a long-term

rating of “Aa3” and a short-term rating of “P-1” and (4) for maturities over six months, a long-term rating of “Aaa” and a short-term rating of “P-1”, or, following a Rated Securitization, such other ratings as confirmed in a Rating Agency Confirmation and (c) in one of the following Fitch rating categories: (1) for maturities less than three months, a long term rating of “A” and a short term rating of “F-1” and (2) for maturities greater than three months, a long-term rating of “AA-” and a short term rating of “F-1+”;

(d) commercial paper rated (a) “A–1+” (or the equivalent) by S&P and having a maturity of not more than 90 days, (b) in one of the following Moody’s rating categories: (i) for maturities less than one month, a long-term rating of “A2” or a short-term rating of “P-1”, (ii) for maturities between one and three months, a long-term rating of “A1” and a short-term rating of “P-1”, (iii) for maturities between three months to six months, a long-term rating of “Aa3” and a short-term rating of “P-1” and (iv) for maturities over six months, a long-term rating of “Aaa” and a short-term rating of “P-1” and (c) in one of the following Fitch rating categories: (1) for maturities less than three months, a long term rating of “A” and a short term rating of “F-1” and (2) for maturities greater than three months, a long-term rating of “AA-” and a short term rating of “F-1+”; and

(e) following a Rated Securitization, such other investments as to which each Rating Agency shall have delivered a Rating Agency Confirmation.

Notwithstanding the foregoing, “Permitted Investments” (i) shall exclude any security with the S&P’s “r” symbol (or any other Rating Agency’s corresponding symbol) attached to the rating (indicating high volatility or dramatic fluctuations in their expected returns because of market risk), as well as any mortgage-backed securities and any security of the type commonly known as “strips”; (ii) shall be limited to those instruments that have a predetermined fixed dollar of principal due at maturity that cannot vary or change; (iii) shall only include instruments that qualify as “cash flow investments” (within the meaning of Section 860G(a)(6) of the Code); and (iv) shall exclude any investment where the right to receive principal and interest 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. Interest may either be fixed or variable, and any variable interest must be tied to a single interest rate index plus a single fixed spread (if any), and move proportionately with that index. No investment shall be made which requires a payment above par for an obligation if the obligation may be prepaid at the option of the issuer thereof prior to its maturity. All investments shall mature or be redeemable upon the option of the holder thereof on or prior to the earlier of (x) three months from the date of their purchase and (y) the Business Day preceding the day before the date such amounts are required to be applied hereunder.

“Permitted PILOT Arrangement” shall have the meaning set forth in Section 5.1.23(a).

“Permitted POP Obligations” shall have the meaning set forth in Section 4.1.30(j).

“Permitted Return” shall have the meaning set forth in Section 7.5.2(b) hereof.

“Permitted Transfer” shall mean any of the following: (a) any transfer, directly as a result of the death of a natural person, of stock, membership interests, partnership interests or other ownership interests previously held by the decedent in question to the Person or Persons lawfully entitled thereto, provided if such decedent Controlled Borrower, then any such Person or Persons succeeding to Control shall have the same expertise and experience in owning the Properties as the decedent, (b) any transfer, directly as a result of the legal incapacity of a natural person, of stock, membership interests, partnership interests or other ownership interests previously held by such natural person to the Person or Persons lawfully entitled thereto, provided if such incapacitated Person Controlled Borrower, then any such Person or Persons succeeding to Control shall have the same expertise and experience in owning the Properties as the incapacitated Person prior to such incapacity, (c) any Transfer of any interest in an Affiliate Manager if such Transfer does not otherwise result in a Transfer of an interest in Borrower that is not permitted hereunder, (d) any Transfer permitted without the consent of Lender pursuant to the provisions of Section 5.2.2(b), Section 5.2.10 or Section 10.29, (e) any Lease of space in any of the Improvements to Tenants in accordance with (or that is not restricted by) the provisions of Section 5.1.20, (f) any Permitted Equipment Transfer, (g) Permitted Encumbrances, (h) the release of any Property or portion thereof (or an Unencumbered Borrower) in connection with a release in accordance with Section 2.4.2, Section 2.6 or Section 6.4, (i) (I), if applicable, any direct or indirect pledge (or any Transfer occurring upon the foreclosure of, or other remedial action with respect to, the same or delivery of an assignment in lieu of foreclosure in respect of the same) by the Mezzanine Borrower to the Mezzanine Lender of the direct or indirect ownership interests in Borrower, any SPE Constituent Entity, Mezzanine Borrower and/or any SPE Constituent Entity (as defined under the Mezzanine Loan Agreement) and other collateral pursuant to the Mezzanine Loan Agreement and/or (II) if applicable, any exercise of rights and remedies by a Mezzanine Lender under the Mezzanine Loan Documents in accordance with Section 5.2.10, (j) Transfers of direct (but only so long as there is no Mezzanine Loan then outstanding) or indirect interests in or Control of Borrower (including Transfers of direct interests in the Mezzanine Borrower) or any SPE Constituent Entity by and among the entities comprising Initial Sponsor or any Approved Sponsor Entity and/or their respective Affiliates and respective Affiliated subsidiaries from time to time or Transfers of direct or indirect interests in any entity comprising Initial Sponsor or any Approved Sponsor Entity and their respective Affiliates, (k) any Sale or Pledge of an Excluded Entity, (l) any issuance or Transfer of Publicly Traded Shares in a Public Vehicle or of any direct or indirect equity interest of any Person whose only equity interest in Borrower consists of Publicly Traded Shares in a Public Vehicle, (m) an Immaterial Transfer/Release, (n) the creation of a New Mezzanine Borrower in connection with the New Mezzanine Loan and the contribution, distribution or assignment of the interests in Borrower or an Approved Borrower Sub to such New Mezzanine Borrower in connection with an Approved Drop Down, (o) the acquisition by Borrower of fee title to a PILOT Property in accordance with the terms and conditions of the PILOT Lease, (p) any Transfer resulting from any exercise by Lender of its rights and remedies under the Loan Documents, (q) any Transfer or exchange of units or other interests in any Public Vehicle, (r) any transfer as a result of a Foreclosure, (s) the acquisition by Borrower of fee title to or a direct leasehold interest in the Ground Leased Property in accordance with the terms and conditions of the Ground Lease and the Loan Documents, (t) any Condemnation and (u) any termination or other collapse or similar “winding up” of the Fremont Ground Lease pursuant to a Fremont Ground Lease Modification.

“Permitted Uses” shall have the meaning set forth in Section 4.1.22 hereof.

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

“Personal Property” shall have the meaning set forth in the applicable granting clause of the related Mortgage with respect to each Individual Property.

“PILOT Bond” means, individually and/or collectively, any bonds or similar instruments issued in connection with any Permitted PILOT Arrangement.

“PILOT Documents” shall mean (a) any PILOT Bond, (b) any PILOT Lease, and (c) any PILOT Bond Pledge Agreement.

“PILOT Bond Pledge Agreement” shall have the meaning set forth in Section 5.1.23(a) hereof.

“PILOT Lease” means, a lease entered into in accordance with Section 5.1.23(a) hereof in connection with a Permitted PILOT Arrangement.

“PILOT Leasehold Mortgage” shall have the meaning set forth in Section 5.1.23(a)(iii) hereof.

“PILOT Lessee” shall have the meaning set forth in Section 5.1.23(a).

“PILOT Lessor” means the lessor under the applicable PILOT Lease.

“PILOT Property” shall mean, individually and/or collectively as the context requires, any Individual Property at which a PILOT Lease is put in place in connection with a Permitted PILOT Arrangement.

“Plan Assets” shall have the meaning set forth in Section 4.1.9 hereof.

“Pledge Foreclosure” shall have the meaning set forth in Section 5.2.10(d) hereof.

“PLL Policy” or “PLL Policies” shall have the meaning set forth in Section 6.1(a)(x) hereof.

“PLL Policy Limit” shall have the meaning set forth in Section 6.1(a)(x) hereof.

“Policies” shall have the meaning set forth in Section 6.1(b) hereof.

“Policy” shall have the meaning set forth in Section 6.1(b) hereof.

“Portfolio PML Reports” shall have the meaning set forth in Section 6.1(c) hereof.

“Post-Closing Obligations Letter” shall mean that certain Post-Closing Obligations Agreement dated as of the date hereof made by Borrower in favor of Xxxxxx.

“Pre-Identified Release Parcels” shall mean those certain pre-identified release parcels set forth on Schedule 2.6.2 hereof.

“Preapproved Alterations” shall mean the Alterations more particularly described on Schedule 1.1(d) hereto.

“Prepayment Notice” shall have the meaning set forth in Section 2.4.1(a) hereof.

“Previously-Owned Property” shall mean the individual properties set forth on Schedule 1.1(q).

“Previously-Owned Property Borrower” shall mean the Individual Borrowers set forth on Schedule 1.1(r).

“Prime Index Rate” shall mean, with respect to each Interest Period, the annual rate of interest published in The Wall Street Journal from time to time as the “Prime Rate” for the U.S. on the related Determination Date. If The Wall Street Journal ceases to publish the “Prime Rate,” the Lender shall select an equivalent publication that publishes such “Prime Rate,” and if such “Prime Rates” are no longer generally published or are limited, regulated or administered by a governmental or quasi-governmental body, then Lender shall select a comparable interest rate index. Notwithstanding the foregoing, in no event shall the Prime Index Rate be less than zero percent.

“Prime Rate” shall mean, with respect to each Interest Period, the per annum rate of interest equal to the Prime Index Rate plus the Prime Rate Spread for each Component; provided, however, that such rate shall not be less than the Spread for each Component.

“Prime Rate Loan” shall mean the Loan at such time as interest thereon accrues at a rate of interest equal to the Prime Rate for each Component.

“Prime Rate Spread” shall mean, with respect to each Note and each Component, the difference (expressed as the number of basis points) between (a) the Term SOFR Reference Rate (or the Unadjusted Alternate Index Rate, as applicable) plus the Spread for such Note or such Component on the date Term SOFR Reference Rate (or the Unadjusted Alternate Index Rate, as applicable) was last applicable to the Loan and (b) the Prime Index Rate on the date that Term SOFR Reference Rate (or the Unadjusted Alternate Index Rate, as applicable) was last applicable to the Loan.

“Priority Payment Cessation Event” shall mean (a) the acceleration of the Loan during the continuance of an Event of Default, (b) the initiation of (x) judicial or nonjudicial foreclosure proceedings, (y) proceedings for appointment of a receiver or (z) similar remedies permitted by this Agreement or the other Loan Documents relating to all or a material portion of the applicable Individual Property, and/or (c) the imposition of a stay, an injunction or a similar judicially imposed device that has the effect of preventing Lender from exercising its remedies under this Agreement or the other Loan Documents.

“Priority Waterfall Payments” shall mean the payments described in Sections 3(a) through (e) of the Cash Management Agreement of Ground Rent, Taxes, Other Charges and Insurance Premiums and the fees and expenses of the Agent under the Cash Management Account.

“Properties” shall mean, collectively, each and every Individual Property which is subject to the terms of this Agreement.

“Provided Information” shall mean any and all financial and other information (including any updates thereto) provided at any time by, or on behalf of, Borrower, SPE Constituent Entity, Guarantor, Mezzanine Borrower, Sponsor and/or Manager (if the Manager is an Affiliate Manager).

“Public Sale” shall mean (a) the Sale or Pledge in one or a series of transactions, of all or a portion of the direct or indirect legal or beneficial interests in Borrower and Mezzanine Borrower to a Qualified Public Company, or (b) the Sale or Pledge in one or a series of transactions, through which any direct or indirect owner of a legal or beneficial interest in Borrower and, to the extent a Mezzanine Loan is outstanding, Mezzanine Borrower, becomes, or is merged with or into, a Qualified Public Company. For the avoidance of doubt, any provisions of this Agreement relating to a “Public Sale” shall not apply to an Excluded Entity.

“Public Vehicle” shall mean a Person whose securities are approved for listing on (i) the New York Stock Exchange, AMEX, NASDAQ, or another nationally recognized securities exchange or (ii) the Toronto Stock Exchange, the Frankfurt Stock Exchange, the London Stock Exchange, Euronext, the Luxembourg Stock Exchange, the Hong Kong Stock Exchange, the Shanghai Stock Exchange, the Tokyo Stock Exchange or the Korea Exchange (KRX), and shall include a majority owned subsidiary of any such Person or any operating partnership through which such Person conducts all or substantially all of its business.

“Publicly Traded Shares” shall mean securities that are approved for listing on (i) the New York Stock Exchange, AMEX, NASDAQ, or another nationally recognized securities exchange or (ii) the Toronto Stock Exchange, the Frankfurt Stock Exchange, the London Stock Exchange, Euronext, the Luxembourg Stock Exchange, the Hong Kong Stock Exchange, the Shanghai Stock Exchange, the Tokyo Stock Exchange or the Korea Exchange (KRX).

“Purchaser” shall have the meaning set forth in Section 4.3(b) hereof.

“Qualified Manager” shall mean (a) any Existing Manager, Beam, Bell Partners, BH Management, Olympus, PAC, Rangewater, Security Properties, APM, Avanti, Xxxxxx Xxxxxx, Dayrise, GoldOller, Greystar, Holland, MG, Peak, Waterton, Westcorp, ConAm, Xxxxxxx & Wakefield, XX Xxxx, AIR, Livcor, Avenue 5, Brookfield, CityView, Cortland, FPI, Oxford, Lincoln Properties, Pinnacle, Alliance, Xxxx Xxxxxx, Westdale, Bridge, and Davlyn, (b) any Person that is an Affiliate of Sponsor or a Blackstone Fund Entity, (c)(i) a Qualified Transferee following a Permitted Assumption in accordance with the terms and conditions of Section 5.2.10(e) hereof, or an Affiliate thereof or (ii) a Qualified Public Company following a Public Sale in accordance with the terms and conditions of Section 5.2.10(d)(ii) hereof, or an Affiliate thereof, (d) a reputable and experienced real estate management organization possessing experience in managing during the five (5) years immediately preceding such management company’s engagement as a Manager with

respect to the Properties at least ten (10) multi-family housing properties with no less than two thousand five hundred (2,500) units in the aggregate at such time, and which is not then the subject of a Bankruptcy Action or (II) a management organization otherwise reasonably acceptable to Lender, and (e) any Person Controlled by or under common Control with any management company set forth in subclause (a) through (d).

“Qualified Public Company” shall mean a Public Vehicle with a market capitalization equal to or exceeding $400,000,000.00 as of the date of the Public Sale.

“Qualified Transferee” shall mean a Person (or series of Persons under common Control) (a) (I) that is a Qualified Public Company, (II) has an aggregate Net Worth as of the date of the Public Sale or Permitted Assumption, as applicable, equal to, or in excess of, the Net Worth Threshold or (III) has been approved by Lender, such approval not to be unreasonably withheld, conditioned or delayed, (b) that has not been party to any bankruptcy proceedings, voluntary or involuntary, made an assignment for the benefit of creditors or taken advantage of any insolvency act, or any act for the benefit of debtors or the subject of any material governmental or regulatory investigation which resulted in a final, non-appealable conviction for criminal activity involving moral turpitude or a civil proceeding in which such Person has been found liable in a final non-appealable judgment for attempting to hinder, delay or defraud creditors, each within seven (7) years prior to the date of the proposed Transfer, and (c) is able to remake the applicable representations set forth in Section 4.1.35 hereof and is able to comply with the applicable covenants set forth in Section 5.1.27 hereof.

“Radius” shall have the meaning set forth in Section 6.1(b) hereof.

“Rate Cap Guaranty Assumption” shall have the meaning set forth in Section 5.2.10(d)(i) hereof.

“Rate Cap Reserve Account” shall have the meaning set forth in Section 7.6.

“Rate Cap Reserve Amount” shall mean an amount, determined as of the date that the Rate Cap Reserve Funds are deposited in the Rate Cap Reserve Account in accordance with the terms and conditions of this Agreement, equal to the interest that would accrue on the then Outstanding Loan Amount during the initial term or applicable Extension Term, as applicable, if the interest rate were equal to the Strike Price Delta, based on a 360 day year and the actual number of days elapsed, all as reasonably calculated by Lender.

“Rate Cap Reserve Amount Cash Share” shall mean a fraction, expressed as a percentage, in which (i) the numerator of which is the amount of cash initially deposited in the Rate Cap Reserve Account and (ii) the denominator is the Rate Cap Reserve Amount.

“Rate Cap Reserve Fund” shall have the meaning set forth in Section 7.6.

“Rate Cap Reserve Guarantor” shall mean any of (i) Guarantor, (ii) one or more Replacement Sponsor Guarantor(s) and/or (iii) one or more Replacement Affiliate Guarantors.

“Rate Cap Reserve Guaranty” shall have the meaning set forth in Section 7.6 hereof.

“Rated Securitization” shall mean, any Securitization where all or a portion of the Securities are rated by a Rating Agency.

“Rating Agencies” shall mean each of S&P, Moody’s, Fitch, KBRA, DBRS Morningstar or any other nationally recognized statistical rating organization that has been approved by Xxxxxx, and that has been engaged by or on behalf of Lender or its designee to rate the Loan and actually assigns a rating to the Loan or the Securities.

“Rating Agency Confirmation” shall mean, collectively, in connection with or following a Rated Securitization, a written affirmation from each of the Rating Agencies that the credit rating of the Securities given by such Rating Agency of such Securities immediately prior to the occurrence of the event with respect to which such Rating Agency Confirmation is sought will not be qualified, downgraded or withdrawn as a result of the occurrence of such event, which affirmation may be granted or withheld in such Rating Agency’s sole and absolute discretion. In the event that, at any given time, any Rating Agency elects not to consider whether to grant or withhold such an affirmation, then the term Rating Agency Confirmation by such Rating Agency shall be deemed instead to require the written reasonable approval of Lender.

“REA” or “Reciprocal Easement Agreement” shall mean the reciprocal easement agreements or similar agreements affecting any Individual Property or portion thereof and set forth on Schedule 1.1(j).

“REA Default Election Notice” shall have the meaning set forth in Section 8.1(a)(xv) hereof.

“Recourse Party” shall have the meaning set forth in Section 9.2(a)(i).

“Register” shall have the meaning set forth in Section 10.24 hereof.

“REIT” shall have the meaning set forth in Section 5.2.10(h) hereof.

“REIT Election” shall have the meaning set forth in Section 5.2.10(h) hereof.

“REIT Restructuring” shall have the meaning set forth in Schedule 5.2.10 hereof.

“Related Parties” shall have the meaning set forth in Section 10.32 hereof.

“Release Amount” shall mean, for an Individual Property, a Condominium Release Unit or a Release Parcel/Rights, the lesser of:

(a) the Debt; or

(b) an amount equal to (x) with respect to each Individual Property, the Allocated Loan Amount for such Individual Property set forth on Schedule 1.1(a) (as adjusted in accordance with this Agreement, if applicable) multiplied by (1) one hundred and five percent (105%) until such time that the Outstanding Loan Amount has been reduced to $2,065,000,000.00 and (2) thereafter, one hundred and ten percent (110%) and (y) with respect to each Condominium Release Unit, the applicable Condominium Release

Unit Amount multiplied by (1) one hundred and five percent (105%) until such time that the Outstanding Loan Amount has been reduced to $2,065,000,000.00 and (2) thereafter, one hundred and ten percent (110%).

“Release Debt Yield” shall have the meaning set forth in Section 2.6.1(a)(v) hereof.

“Release Default” shall have the meaning set forth in Section 2.6.1(c) hereof.

“Release Parcel/Rights” shall have the meaning set forth in Section 2.6.2 hereof.

“Release Property” shall have the meaning set forth in Section 2.6.1(a) hereof.

“Relevant Governmental Body” means the Federal Reserve Board and/or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board and/or the Federal Reserve Bank of New York or any successor thereto.

“REMIC Trust” shall mean a “real estate mortgage investment conduit” (within the meaning of Section 860D of the Code) that holds the Note or a portion thereof.

“Rents” shall mean, with respect to each Individual Property, all rents (including, without limitation, percentage rents), rent equivalents, moneys payable as damages or in lieu of rent or rent equivalents, any fees, payments or other compensation from any Tenant relating to or in exchange for the termination of such Tenant’s Lease, any Excluded Lease, royalties (including, without limitation, all oil and gas or other mineral royalties and bonuses), income, receivables, receipts, revenues, deposits (including, without limitation, security, utility and other deposits), accounts, cash, issues, profits, charges for services rendered, all other amounts payable as rent under any Lease, any Excluded Lease, or other agreement relating to such Individual Property, including, without limitation, charges for electricity, oil, gas, water, steam, heat, ventilation, air-conditioning and any other energy, telecommunication, telephone, utility or similar items or time use charges, HVAC equipment charges, sprinkler charges, escalation charges, license fees, maintenance fees, charges for Taxes, operating expenses or other reimbursables payable to Borrower (or to Manager for the account of Borrower) under any Lease, any Excluded Lease, and other consideration of whatever form or nature received by or paid to or for the account of or benefit of Borrower or its agents or employees from any and all sources arising from or attributable to the Individual Property, and proceeds, if any, from business interruption or other loss of income or rental insurance. Notwithstanding the foregoing, in no event shall any payment made by Borrower under any Ground Lease or a PILOT Lease or payments made between Borrowers pursuant to the Fremont Ground Lease be considered Rent.

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

“Replacement Affiliate Guarantor” shall mean individually or collectively as the context may require, one or more Affiliate(s) of any entity comprising a Blackstone Fund Entity (other than a Replacement Sponsor Guarantor).

“Replacement Agent” shall mean any successor to Servicer that is an Eligible Institution and either (a) assumes the obligations of the Agent being replaced under the then-existing Cash Management Agreement or (b) executes and delivers a Replacement Cash

Management Agreement, in each case, acting in such Person’s capacity as Agent under the Replacement Cash Management Agreement.

“Replacement Cash Management Agreement” shall mean any cash management agreement entered into by and among Borrower, Lender and a Replacement Agent, provided that such cash management agreement is in form and substance substantially similar to the Closing Date Cash Management Agreement or is otherwise in form and substance reasonably acceptable to Lender and Borrower.

“Replacement Guarantor” shall mean one or more of any of (1) a Replacement Sponsor Guarantor, (2) Replacement Affiliate Guarantor, (3) a substitute guarantor which as of the date of determination (x) has (i) a Net Worth equal to, or in excess of, the Net Worth Threshold multiplied by the Liability Percentage of such Person or (ii) a market capitalization equal to or exceeding the Net Worth Threshold multiplied by the Liability Percentage of such Person and (y) satisfies the requirements of a Qualified Transferee other than clause (a) of the definition thereof or (4) one or more substitute guarantors reasonably acceptable to Lender, as applicable. In the event that a Several Liability Event has occurred and is continuing, the liability of such Replacement Guarantor shall be several and not joint.

“Replacement Interest Rate Protection Agreement” shall mean, collectively, one or more interest rate protection agreements from an Acceptable Counterparty with a strike price no greater than the Strike Price (or, if the Alternate Strike Price Condition has been satisfied, the Alternate Strike Price) and on other terms substantially similar to the Interest Rate Protection Agreement (or as otherwise reasonably acceptable to Lender) except that the same shall be effective as of the date required in Section 2.2.7(c) or (x) if such interest rate protection agreement is delivered in connection with an extension of the Maturity Date pursuant to Section 2.8 shall meet the requirements set forth in Section 2.8(c) and (y) if such interest rate protection agreement is delivered in connection with an Index Rate Conversion, shall meet the requirements set forth in Section 2.2.7(h).

“Replacement Lockbox Agreement” shall mean any lockbox agreement entered into by and among Borrower, Manager, Lender and a Replacement Lockbox Bank, provided that such lockbox agreement is in form and substance substantially similar to the Closing Date Lockbox Agreement delivered on the Closing Date, as applicable, or is otherwise in form and substance reasonably acceptable to Lender.

“Replacement Lockbox Bank” shall mean any successor to the Lockbox Bank that is an Eligible Institution which maintains and holds the Lockbox Account and either (a) assumes the obligations of the Lockbox Bank being replaced under the then-existing Lockbox Agreement or (b) executes and delivers a Replacement Lockbox Agreement, in each case, acting in such Person’s capacity as Lockbox Bank under the Replacement Lockbox Agreement.

“Replacement Management Agreement” shall mean, collectively, (a) any of (i) a management agreement with a Qualified Manager substantially in the same form and substance as the Management Agreement, (ii) a management agreement with a Qualified Manager, entered into on an arm’s length basis and on commercially reasonable terms or (iii) a management agreement with a Qualified Manager, which management agreement shall be reasonably acceptable to Lender

in form and substance, and (b) an assignment of management agreement and subordination of management fees substantially in the form delivered to Lender in connection with the closing of the Loan (or of such other form and substance reasonably acceptable to Lender) (a “Replacement Management Subordination”), in each case, executed and delivered to Lender by Xxxxxxxx and such Qualified Manager at Borrower’s expense. For the avoidance of doubt, no Rating Agency Confirmation will be required in connection with any Replacement Management Subordination.

“Replacement Reserve Account” shall have the meaning set forth in Section 7.4.1 hereof.

“Replacement Reserve Cap” shall mean an amount equal to twelve (12) multiplied by the Replacement Reserve Monthly Deposit.

“Replacement Reserve Funds” shall have the meaning set forth in Section 7.4.1 hereof.

“Replacement Reserve Monthly Deposit” shall mean, for each date of determination, one twelfth (1/12) of the amount equal to the product of (a) the number of residential units at the Properties subject to the Lien of the Mortgage as of such date of determination and (b) $250.

“Replacement Sponsor Guarantor” shall mean, individually or collectively as the context may require, one or more of the entities comprising a Blackstone Fund Entity, which, for the avoidance of doubt, shall not be required to satisfy any minimum Net Worth or liquidity requirement. In the event that a Several Liability Event has occurred and is continuing, the liability of such Replacement Sponsor Guarantor shall be several and not joint.

“Reporting Entity” shall have the meaning set forth in Section 5.1.11(c) hereof.

“Representative Borrower” shall have the meaning set forth in Section 10.6(b) hereof.

“Repurchase” shall have the meaning set forth in Section 9.1.2(d) hereof.

“Required Ownership Interest” shall mean (i) for so long as one or more Approved Sponsor Entities individually or collectively Controls Borrower and Mezzanine Borrower (including, without limitation, through a Qualified Public Company), not less than five percent (5%) of the ultimate direct or indirect interests in Borrower and any Mezzanine Borrower, or (ii) in the event that an Approved Sponsor Entity does not individually or collectively Control Borrower and any Mezzanine Borrower, not less than fifteen percent (15%) of the ultimate direct or indirect interests in Borrower and the Mezzanine Borrower.

“Required PLL Period” shall have the meaning set forth in Section 6.1(a)(x) hereof.

“Required REIT Distributions” shall mean an amount equal to (a) the minimum amount required to be distributed by a Borrower in cash (as opposed to equity) such that distributions received by the Person that is a REIT following a REIT Restructuring and/or each direct and/or indirect owner of the Borrower that is a REIT, with respect to any taxable year, equals the amount of the dividend such REIT must distribute in cash (as opposed to equity) to qualify or

maintain its status as a REIT and to avoid any U.S. federal or state income Taxes imposed under Sections 857(b)(1) and 857(b)(3) of the Code (or similar provisions of state or local law) and any excise taxes imposed under Section 4981 of the Code or (b) the necessary amount to redeem any preferred shareholders of any Person described in clause (a); provided, however, the amount of Required REIT Distributions made in any year shall not exceed the greater of (x) $250,000 per annum and (y) when aggregated with all prior distributions made pursuant to this definition of “Required REIT Distributions”, ten percent (10%) of the aggregate of all deposits made into the Excess Cash Flow Reserve Account through any date of determination.

“Required Repairs” shall have the meaning set forth in Section 5.1.30 hereof.

“Required Strike Price” shall mean (a) for the period from the Closing Date through and including the Initial Maturity Date, the Initial Strike Price and (b) for any Extension Term, the Extension Strike Price.

“Reserve Accounts” shall mean, collectively, the Tax and Insurance Reserve Account, the Replacement Reserve Account, the Excess Cash Flow Reserve Account, the Rate Cap Reserve Account, the Ground Lease Reserve Account, the MC Reserve Account, and any other escrow account established pursuant to the Loan Documents.

“Reserve Funds” shall mean, collectively, the Tax Reserve Funds, the Insurance Reserve Funds, the Replacement Reserve Funds, the Excess Cash Flow Reserve Funds, the Rate Cap Reserve Funds, the Ground Lease Reserve Funds, the MC Reserve Funds, and any funds deposited into any other Reserve Account.

“Reserve Guarantor” shall mean any of (i) Guarantor, (ii) one or more Replacement Sponsor Guarantor(s), (iii) one or more Replacement Affiliate Guarantors , or (iv) from and after a substitution in accordance with the terms hereof and of the Reserve Guaranty, any Replacement Guarantor.

“Reserve Guaranty” shall mean that certain Reserve Guaranty dated as of the Closing Date and executed and delivered by Guarantor in connection with the Loan to and for the benefit of Lender, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Reserve Release Threshold” shall mean Ten Million and No/100 Dollars ($10,000,000.00).

“Reserved Excess Cash Flow” shall have the meaning set forth in Section 7.5.1 hereof.

“Resolution Authority” shall mean an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.

“Restoration” shall mean the repair and restoration of an Individual Property after a Casualty or Condemnation as nearly as possible to the condition the Individual Property was in immediately prior to such Casualty or Condemnation, with such Alterations as may be reasonably approved by Xxxxxx.

“Restricted Party” shall mean collectively, (a) Borrower, any Mezzanine Borrower and each SPE Constituent Entity and (b) any shareholder, partner, member, non-member manager, any direct or indirect legal or beneficial owner of, Borrower, any Mezzanine Borrower any SPE Constituent Entity, or any non-member manager; provided that an Excluded Entity (and any Person owning a direct or indirect interest in any Excluded Entity) shall not be a Restricted Party and with respect to clause (b), excluding any shareholders or owners of stock or equity interest (including depositary shares) that are publicly traded on any nationally or internationally recognized stock exchange or any accommodation shareholders of preferred shares (including depositary shares) in any REITs in the Borrowers’ ownership structure for REIT compliance purposes, in each case, that are not Affiliates of Borrower or any Mezzanine Borrower. For the avoidance of doubt, notwithstanding anything to the contrary contained in this Agreement, no notice to, or consent of Administrative Agent or Lender shall be required in connection with any Sale or Pledge of direct or indirect interests in any Excluded Entity.

“Restricted Pledge Party” shall mean, collectively, Borrower, any Mezzanine Borrower any SPE Constituent Entity or any other direct or indirect equity holder in Borrower up to, but not including, the first direct or indirect equity holder of Borrower that has substantial assets other than its indirect interest in the Properties, provided, that no Excluded Entity (or any Person owning a direct or indirect interest in any Excluded Entity) shall be a Restricted Pledge Party.

“Retained Affiliate Lender Rights” shall have the meaning set forth in Section 10.28 hereof.

“Reviewed Materials” shall have the meaning set forth in Section 9.1.1(c) hereof.

“S&P” shall mean S&P Global Ratings, acting through Standard & Poor’s Financial Services LLC.

“Sale or Pledge” shall mean a voluntary or involuntary sale, conveyance, assignment, transfer, encumbrance, pledge, grant of option to purchase or other transfer or disposal of a legal or beneficial interest, whether direct or indirect.

“Section 2.9 Certificate” shall have the meaning set forth in Section 2.9(e)(i)(C) hereof.

“Section 2.9 Taxes” shall have the meaning set forth in Section 2.9(a) hereof.

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

“Securities Act” shall have the meaning set forth in Section 9.1.1(m) hereof.

“Securitization” shall have the meaning set forth in Section 9.1.1(a) hereof.

“Securitization Vehicle” shall mean the issuer of certificates in a Securitization.

“Servicer” shall have the meaning set forth in Section 9.4 hereof.

“Servicing Agreement” shall have the meaning set forth in Section 9.4 hereof.

“Several Liability Event” shall mean that (x) Replacement Sponsor Guarantors comprising more than one Blackstone Fund Entity that are part of separate Guarantor Groups (as defined in the Guaranty) become the Guarantor or any Ancillary Guarantor or (y) Replacement Affiliate Guarantors owned by more than one Blackstone Fund Entity that are part of separate Guarantor Groups (as defined in the Guaranty) become the Guarantor or any Ancillary Guarantor.

“Severed Loan Documents” shall have the meaning set forth in Section 8.2(c) hereof.

“SF Condition” shall have the meaning set forth in Section 5.1.11(b) hereof.

“Single Borrower Documents” shall have the meaning set forth in Section 2.6.1(f) hereof.

“SOFR” shall mean a rate equal to the secured overnight financing rate as administered by the SOFR Administrator.

“SOFR Administrator” shall mean the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).

“SOFR Loan” shall mean the Loan at such time as interest thereon accrues at a rate of interest equal to the SOFR Rate.

“SOFR Rate” shall mean the sum of (i) Term SOFR applicable to such Interest Period and (ii) the Spread for each Component.

“SPE Constituent Entity” shall mean the Special Purpose Entity that is the general partner of Borrower or of another SPE Constituent Entity, if such Borrower or SPE Constituent Entity is a limited partnership, or the managing member of Borrower, if Borrower is a limited liability company not organized under the laws of the State of Delaware.

“Special Purpose Entity” shall mean a limited partnership or limited liability company that, at all times on and after the Closing Date, has complied with and shall at all times comply with the following requirements:

(i) is and shall be organized solely for the purpose of (A) in the case of Borrower, acquiring, developing, redeveloping, owning, holding, selling, leasing, ground leasing, transferring, exchanging, managing, renovating, improving, financing, refinancing and operating the Properties or its Individual Property (or any portion thereof), entering into and performing its obligations under the Fremont Ground Lease (in the case of the Fremont Ground Lessee and the Fremont Ground Lessor) and the Ground Lease (in the case of the Ground Lease Borrower), entering into and performing its obligations under a PILOT Lease (in the case of a PILOT Lessee), entering into and performing its obligations under the Loan Documents with Lender, refinancing the Properties in connection with a permitted repayment of the Loan and transacting any lawful business that is incident, necessary and appropriate to accomplish the foregoing and (B) in the case of an SPE Constituent Entity, acting as a general partner of either (1) the limited partnership that owns any

one or more Individual Properties or (2) another SPE Constituent Entity, or a member of either (1) the limited liability company that owns any one or more Individual Properties or (2) another SPE Constituent Entity and transacting lawful business that is incident, necessary and appropriate to accomplish the foregoing;

(ii) shall not engage in any business unrelated to the activities set forth in clause (i) of this definition;

(iii) shall not own any real property other than, in the case of Borrower, any one or more Individual Properties;

(iv) does not have and shall not have any assets other than (A) in the case of Borrower, its interest in one or more Individual Properties and personal property necessary or incidental to its interest in and operation of such Individual Property or Individual Properties and (B) in the case of an SPE Constituent Entity, its direct or indirect partnership interest in the limited partnership that owns any one or more Individual Properties, or its direct or indirect member interest in the limited liability company that owns any one or more Individual Properties and, in each case, personal property necessary or incidental to its ownership of such interests;

(v) shall not engage in, seek, consent to or permit (A) to the fullest extent permitted by law, any dissolution, winding up, liquidation, consolidation, Division or merger, (B) any sale or other transfer of all or substantially all of its assets or any sale of assets outside the ordinary course of its business other than in connection with a sale of any Individual Property in accordance with the terms of this Agreement, except as permitted by the Loan Documents, or (C) in the case of an SPE Constituent Entity, any transfer of its partnership interest or member interest in Borrower or another SPE Constituent Entity, except as permitted by the Loan Documents;

(vi) shall not cause, consent to or permit any amendment of its articles of organization, certificate of formation, certificate of limited partnership or other formation document or its limited partnership agreement or operating agreement or limited liability company agreement (as applicable) with respect to the matters set forth in this definition or matters as to which such formation document expressly requires prior written consent of Lender, in each case without the prior written consent of Lender;

(vii) if such entity is a limited partnership, shall be either a Delaware entity or an entity formed in the United States outside of the State of Delaware, and has and shall have, in each instance, at least one general partner and has and shall have, in each instance, as its only general partners, SPE Constituent Entities each of which (A) is a single-member Delaware limited liability company, (B) has two (2) Independent Directors or Independent Managers, and (C) holds a direct interest as general partner in the limited partnership of not less than one-tenth of one percent (0.1%) except, in each case, for the Mariner’s Cove Ground Lease Borrower;

(viii) intentionally omitted;

(ix) intentionally omitted;

(x) intentionally omitted;

(xi) if such entity is a limited liability company, (A) is and shall be a Delaware limited liability company (or is and shall be a limited liability company formed in the United States outside of the State of Delaware with a managing member that is an SPE Constituent Entity), (B) has and shall have (or, in the case of a limited liability company formed in the United States outside of the State of Delaware, has a managing member that is a SPE Constituent Entity that has and shall have) at least two (2) Independent Directors or Independent Managers, (C) shall not take any Material Action and shall not cause or permit the members or managers of such limited liability company to take any Material Action, either with respect to itself or, if the limited liability company is an SPE Constituent Entity, with respect to itself or Borrower or another SPE Constituent Entity, as applicable, in each case unless two (2) Independent Directors or Independent Managers then serving as managers of the limited liability company shall have given their prior written consent to such action, and (D) has and shall have two (2) natural persons who are not members of the limited liability company, that have signed its limited liability company agreement and that, under the terms of such limited liability company agreement become a member of the limited liability company immediately prior to the withdrawal or dissolution of the last remaining member of the limited liability company;

(xii) shall not (and, if such entity is (a) a limited liability company, has and shall have a limited liability agreement or an operating agreement, as applicable or (b) a limited partnership, has a limited partnership agreement that, in each case, provide that such entity shall not) (I) to the fullest extent permitted by law, dissolve, merge, be subject to a Division, liquidate, consolidate; (II) sell all or substantially all of its assets; (III) except for amendments entered into prior to the date hereof, amend its organizational documents with respect to the matters set forth in this definition without the prior written consent of Lender and, following a Rated Securitization of the Loan, unless the Rating Agency Confirmation is satisfied; or (IV) without the affirmative vote of two (2) Independent Directors or Independent Managers of itself or the consent of an SPE Constituent Entity that is a direct or indirect member or general partner in it: (A) file or consent to the filing of any bankruptcy, insolvency or reorganization case or proceeding, institute any proceedings under any applicable insolvency law or otherwise seek relief under any laws relating to the relief from debts or the protection of debtors generally, file a voluntary or any other bankruptcy or insolvency petition or otherwise institute insolvency proceedings; (B) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for the entity or a substantial portion of its property; (C) make an assignment for the benefit of the creditors of the entity; or (D) take any action in furtherance of any of the

foregoing (actions described in clauses (A) through (D), collectively, the “Material Actions”);

(xiii) intends to remain solvent and pay its debts and liabilities (including a fairly-allocated portion of any personnel and overhead expenses that it shares with any Affiliate) from its assets as the same shall become due, and intends to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations (in each case, to the extent there exists sufficient cash flow from the operations of the Property to do so; provided, however, that the foregoing shall not require any shareholder, owner, partner or member of such entity, as applicable, to make additional capital contributions to such entity);

(xiv) shall not fail to correct any known misunderstanding regarding the separate identity of such entity;

(xv) except (i) with respect to prior financings that have been repaid or otherwise discharged or that will be repaid or discharged as of the closing of the Loan and (ii) as contemplated by the Loan Documents with respect to any other Borrower or any SPE Constituent Entity, shall maintain books of account, books and records separate from those of any other Person and, to the extent that it is required to file tax returns under applicable law, shall file its own tax returns, except to the extent that it is required by law to file consolidated tax returns or is a disregarded entity for tax purposes;

(xvi) intentionally omitted;

(xvii) except (i) with respect to prior financings that have been repaid or otherwise discharged or that will be repaid or discharged as of the closing of the Loan, (ii) as contemplated by the Loan Documents with respect to each Borrower or each SPE Constituent Entity, and (iii) as contemplated by the Assignment of Interest Rate Protection Agreement, shall not commingle its funds or assets with those of any other Person and shall not participate in any cash management system with any other Person;

(xviii) shall hold its assets in its own name;

(xix) shall hold itself out, identify itself and conduct its business as a separate and distinct entity under its own name or in a name franchised or licensed to it by an entity other than its Affiliate, 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 its agent;

(xx) except with respect to prior financings that have been repaid or otherwise discharged or that will be repaid or discharged as of the closing of the Loan, (A) shall maintain its financial statements, accounting records and other entity documents separate from those of any other Person; (B) shall show, in its

financial statements, its asset and liabilities separate and apart from those of any other Person; and (C) shall not permit its assets to be listed as assets on the financial statement of any of its Affiliates except as required by Approved Accounting Principles; provided, however, that, any such consolidated financial statement contains a note indicating that the Special Purpose Entity’s separate assets and credit are not available to pay the debts of such Affiliate and that the Special Purpose Entity’s liabilities do not constitute obligations of the consolidated entity except as provided herein with respect to each other Borrower or any SPE Constituent Entity;

(xxi) except (i) with respect to prior financings that have been repaid or otherwise discharged or that will be repaid or discharged as of the closing of the Loan and (ii) with respect to each other Borrower or any SPE Constituent Entity as contemplated by the Loan Documents, shall pay its own liabilities and expenses, including the salaries of its own employees, if any, out of its own funds and assets, provided there is sufficient cash flow to do so, and shall maintain a sufficient number of employees in light of its contemplated business operations provided there exists sufficient cash flow from the operations of the Property to do so;

(xxii) shall observe all partnership or limited liability company formalities, as applicable, that are necessary to maintain its separate existence;

(xxiii) (I) in the case of Borrower, shall have no Indebtedness other than (A) the Loan, (B) Permitted Debt, (C) as may be required pursuant to the applicable Ground Lease with respect the related Ground Lease Borrower or with respect to the Fremont Ground Lease, (D) such other liabilities that are permitted pursuant to this Agreement or as otherwise imposed by law and (E) with respect to prior financings that have been repaid or otherwise discharged or that will be repaid or discharged as of the closing of the Loan, provided, however this covenant shall not require any shareholder, owner, partner or member of Borrower to make additional capital contributions to Borrower and (II) in the case of an SPE Constituent Entity shall have no Indebtedness other than (A) liabilities of such SPE Constituent Entity as a general partner of a limited partnership, in its capacity as such and (B) liabilities incurred in the ordinary course of business relating to the ownership and operation of the Special Purpose Entity in which it holds an interest in and routine administration of the Special Purpose Entity in which it holds an interest in, provided that (x) the outstanding liabilities at any time shall not exceed $25,000.00 (provided, however, this restriction shall not apply to liabilities incurred by such SPE Constituent Entity as a general partner of a limited partnership, in its capacity as such) and (y) such liabilities are normal and reasonable under the circumstances; and (C) with respect to prior financings that have been repaid or otherwise discharged or that will be repaid or discharged as of the closing of the Loan; provided, however, that this covenant shall not require any shareholder, owner partner or member of an SPE Constituent Entity to make additional capital contributions to any such entity;

(xxiv) shall not assume or guarantee or become obligated for the debts of any other Person, and shall not hold out itself or its credit or assets as being available to satisfy the obligations of any other Person (or any division or part of any other Person), in each case, except (i) as contemplated by the Loan Documents with respect to each other Borrower, (ii) in the case of an SPE Constituent Entity that is a general partner of a Borrower, in its capacity as such, (iii) as otherwise imposed by law and (iv) other than with respect to prior financings that have been repaid or otherwise discharged as of the closing of the Loan;

(xxv) shall not acquire obligations or securities of its partners, members or shareholders or any other Affiliate except with respect to each SPE Constituent Entity, such SPE Constituent Entity’s general partner interest or member interest and, in the case of an SPE Constituent Entity that is a general partner, obligations with respect to the Borrower in which it owns an interest;

(xxvi) shall allocate fairly and reasonably any overhead expenses that are shared with any of its Affiliates or any guarantor of any of their respective obligations, or any Affiliate of any of the foregoing, including, but not limited to, paying for shared office space and for services performed by any employee of an Affiliate;

(xxvii) shall maintain and use separate stationery, invoices and checks bearing its name and not bearing the name of any other entity unless such entity is clearly designated as being the Special Purpose Entity’s agent;

(xxviii) except (i) as contemplated by the Loan Documents with respect to each other Borrower and (ii) other than with respect to prior financings that have been repaid or otherwise discharged or that will be repaid or discharged as of the closing of the Loan, shall not pledge its assets to secure the obligations of any other Person;

(xxix) intentionally omitted;

(xxx) shall maintain its assets in such a manner that it shall not be costly or difficult to segregate, ascertain or identify its individual assets from those of any other Person (or division or part of any other Person);

(xxxi) shall not make loans to any Person and shall not hold evidence of indebtedness issued by any other Person (other than (A) cash and (B) investment-grade securities issued by an entity that is not an Affiliate of or subject to common ownership with such entity) except as is contemplated in the Loan Documents;

(xxxii) shall not identify its partners, members or shareholders, or any Affiliate of any of them, as a division or part of it;

(xxxiii) except, (i) with respect to each Individual Borrower and each SPE Constituent Entity, as contemplated under the Loan Documents and (ii) for capital contributions and distributions permitted under the terms of its organizational

documents, shall not enter into or be a party to, any transaction with any of its partners, members, shareholders or Affiliates except in the ordinary course of its business and in each case on terms which are intrinsically fair, commercially reasonable and are comparable to those of an arm’s-length transaction with an unrelated third party;

(xxxiv) shall not have any obligation to, and shall not indemnify its partners, officers, directors or members, as the case may be, in each case unless such an obligation or indemnification is fully subordinated to the Debt and shall not constitute a claim against it in the event that its cash flow is insufficient to pay the Debt;

(xxxv) intentionally omitted;

(xxxvi) shall not have any of its obligations guaranteed by any Affiliate except (i) with respect to prior financings that have been repaid or otherwise discharged or that will be repaid or discharged as of the closing of the Loan, (ii) as provided by the Loan Documents with respect to each other Borrower or any SPE Constituent Entity, with respect to the Lockbox Agreement, and with respect to the Guaranty and each Ancillary Guaranty, and (iii) certain guarantees required pursuant to the terms of any Leases with respect to the landlord’s obligations for tenant improvements under such Leases in the ordinary course of business and which are provided to, or are for the benefit of, the Tenant under the applicable Lease (the “TI Guarantees”); provided, that in the event that Borrower elects to deliver a TI Guaranty, if the Additional Insolvency Opinion Condition is satisfied, then Borrower shall deliver an Additional Insolvency Opinion acceptable to Lender which takes into account such TI Guaranty;

(xxxvii) shall not form, acquire or hold any subsidiary, other than in connection with any Approved Drop Down, an Approved Borrower Sub or as expressly permitted in this Agreement, except, in the case of an SPE Constituent Entity, the Borrower or another SPE Constituent Entity in which it owns an interest;

(xxxviii) shall comply with all of the terms and provisions contained in its organizational documents;

(xxxix) except with respect to prior financings that have been repaid or otherwise discharged or that will be repaid or discharged as of the closing of the Loan, shall maintain its bank accounts separate from those of any other Person and shall not permit any Affiliate independent access to its bank accounts (other than Existing Manager, acting in its capacity as agent pursuant to the Management Agreement, or any other Manager that is under common Control with Existing Manager or Guarantor), except as otherwise contemplated by the Loan Documents with respect to each Borrower;

(xl) is, and shall continue to be duly formed, validly existing, and in good standing in the state of its formation and duly qualified in all other jurisdictions where it is required to be qualified in order to do business;

(xli) has no material contingent or actual obligations, other than, (A) in the case of Borrower, material contingent or actual obligations related to the Individual Property or Individual Properties owned by it and Permitted POP Obligations (or obligations relating to a Previously Owned Property that are covered by insurance or subject to reimbursement by a third party) and (B) in the case of an SPE Constituent Entity, material contingent or actual obligations related to its ownership of the applicable Special Purpose Entity; and

(xlii) if treated as a “disregarded entity” for tax purposes, does not have and shall not have any obligation to reimburse its equityholders or any of their Affiliates for any taxes that such equityholders or any of their Affiliates may incur as a result of any profits or losses of such entity.

“Split Loan” shall have the meaning set forth in Section 9.1.2(a) hereof.

“Splitting Documentation” shall have the meaning set forth in Section 9.1.2(a) hereof.

“Sponsor” shall mean (a) initially, Initial Sponsor, (b) following a Permitted Assumption, the applicable Permitted Assumption Parties or (c) following a Public Sale, the applicable Public Vehicle.

“Spread” shall mean, with respect to (i) Component A, 1.69508%, (ii) Component B, 2.14443%, (iii) Component C, 2.59379%, (iv) Component D, 3.09307%, (v) Component E, 3.84198% and (vi) Component HRR, 5.58939%.

“Spread Maintenance Premium” shall mean with respect to any voluntary prepayment or release prepayment of all or a portion of the Outstanding Loan Amount prior to the Open Prepayment Date, a payment to Lender in an amount equal to the product of (i) the Weighted Average Spread applicable to the portion of the Loan which is being repaid, (ii) the portion of the Loan which is being repaid that is subject to the Spread Maintenance Premium and (iii) a fraction, (x) the numerator of which is the number of days (a) with respect to any portion of the Loan that is not subject to a Rated Securitization, following the date on which such portion of the Loan has been (or will be concurrently with such prepayment) prepaid to (and including) the Open Prepayment Date and (b) with respect to any portion of the Loan that is subject to a Rated Securitization, from (but excluding) the last day of the Interest Period in which such prepayment is made to (and including) the end of the Interest Period associated with the Payment Date occurring in August, 2025 and (y) the denominator of which is 360. Notwithstanding the foregoing, in no event shall Borrower be obligated to pay the Spread Maintenance Premium on account of any days for which Borrower is otherwise paying interest on the Loan to Lender.

“State” shall mean, with respect to an Individual Property, the State or Commonwealth in which such Individual Property or any part thereof is located.

“Strike Price” shall mean (a) for the period from the Closing Date through and including the Initial Maturity Date, a rate no greater than 4.50% (the “Initial Strike Price”); (b) as of the commencement date for any Extension Term, a rate equal to the greater of (i) the Initial Strike Price and (ii) the rate that yields a per annum interest rate that would result in the Debt Service Coverage Ratio being no less than 1.10:1.00 (the “Extension Strike Price”) and (c) if elected by Borrower in its sole discretion, a rate that is lower than the Required Strike Price. Notwithstanding the foregoing, Borrower shall be permitted, in its sole discretion, to purchase an Interest Rate Protection Agreement during the Extension Term, at a Strike Price lower than the Extension Strike Price.

“Strike Price Delta” shall mean the difference between (a) the Alternate Strike Price and (b) the Required Strike Price.

“Substitute Interest Rate Protection Agreement” shall have the meaning set forth in Section 2.2.7(h) hereof.

“Survey” shall mean a survey of the Individual Property in question prepared by a surveyor licensed in the State in which such Individual Property is located and satisfactory to Lender and the company or companies issuing the applicable Title Insurance Policy relating to such Individual Property or any part thereof, and containing a certification of such surveyor satisfactory to Lender.

“Syndication” shall have the meaning set forth in Section 9.1.1(a) hereof.

“Tax and Insurance Adjustment” shall have the meaning set forth in the definition of “Operating Expenses” hereof.

“Tax and Insurance Reserve Account” shall have the meaning set forth in Section 7.2.1 hereof.

“Tax and Insurance Reserve Funds” shall have the meaning set forth in Section 7.2.1 hereof.

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

“Tax Reserve Funds” shall have the meaning set forth in Section 7.2.1 hereof.

“Taxes” shall mean all real estate and personal property taxes, assessments, water rates or sewer rents, now or hereafter levied or assessed or imposed against any Individual Property or part thereof.

“TC Cap” shall have the meaning set forth in Section 6.1(a)(ix) hereof.

“Tenant” shall mean any Person with a possessory right to all or any part of an Individual Property pursuant to a Lease.

“Term SOFR” shall mean, with respect to each Interest Period, the Term SOFR Reference Rate rounded to the nearest 1/1000^th of one percent (1.0%) for a one-month period on

the day (such day, the “Periodic Term SOFR Determination Day”) that is two (2) U.S. Government Securities Business Days prior to the first day of such Interest Period, as such rate is published by the Term SOFR Administrator; provided, that if as of 5:00 p.m. (New York City time) on any Periodic Term SOFR Determination Day the Term SOFR Reference Rate for a one-month period has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for a one-month period as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for a one-month period was published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to such Periodic Term SOFR Determination Day. Notwithstanding the foregoing, in no event will Term SOFR be deemed to be less than zero percent (0%).

“Term SOFR Administrator” shall mean CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by Lender in its reasonable discretion).

“Term SOFR Reference Rate” shall mean the one-month forward-looking term rate based on SOFR, currently identified on the CME Group’s website at xxxxx://xxx.xxxxxxxx.xxx/xxxxxx-xxxx/xxx-xxxxx-xxxxxxxxx-xxxxxxxxxxxxxx/xxxx-xxxx.xxxx or any successor source.

“Title Company” shall mean, individually or collectively, Xxxxxxx Title Insurance Company, First American Title Insurance Company, Chicago Title Insurance Company and Old Republic National Title Insurance Company.

“Title Insurance Policy” shall mean, with respect to each Individual Property, an ALTA mortgagee title insurance policy in a form reasonably acceptable to Lender (or, if an Individual Property is in a State which does not permit the issuance of such ALTA policy, such form as shall be permitted in such State and reasonably acceptable to Lender) issued with respect to such Individual Property and insuring the Lien of the Mortgage encumbering such Individual Property.

“Transfer” shall have the meaning set forth in Section 5.2.10(b) hereof.

“Transferee” shall have the meaning set forth in Section 5.2.10(e) hereof.

“TRIPRA” shall have the meaning set forth in Section 6.1(a)(ix) hereof.

“U.S. Obligations” shall mean non‑redeemable securities evidencing an obligation to timely pay principal and/or interest in a full and timely manner that are (a) direct obligations of the United States of America for the payment of which its full faith and credit is pledged, or (b) in connection with or following a Rated Securitization, to the extent acceptable to the Rating Agencies, other “government securities” within the meaning of Section 2(a)(16) of the Investment Company Act of 1940, as amended.

“UCC” or “Uniform Commercial Code” shall mean, unless otherwise set forth herein, the Uniform Commercial Code as in effect in the applicable State in which an Individual Property is located.

“UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.

“UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.

“Unadjusted Alternate Index Rate” means the Alternate Index Rate excluding the Alternate Rate Spread Adjustment.

“Unanimous Decisions” shall have the meaning set forth in Section 10.30(c) hereof.

“Undeveloped Land” shall have the meaning set forth in Section 2.6.2 hereof.

“Unencumbered Borrower” shall have the meaning set forth in Section 2.6.1(f) hereof.

“U.S. Government Securities Business Day” shall mean any day except for (a) a Saturday, (b) a Sunday, or (c) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.

“Weighted Average Spread” shall mean the weighted average of the Spreads for each Component, weighted on the basis of their respective principal balances. As of the Closing Date, the Weighted Average Spread is 2.17646%.

“Xxxxx” shall have the meaning set forth in the introductory paragraph hereto.

“Xxxxxxx Ground Lease” shall mean that certain Ground Lease among Xxxxxxx Ground Lessor and Xxxxxxx Xxxxxxx Property Owner, LLC, a Delaware limited liability company, Xxxxxxx Xxxx Center Property Owner, LLC, a Delaware limited liability company, Xxxxxxx Equity Ardmore Property Owner, LLC, a Delaware limited liability company, Xxxxxxx Circle Property Owner, LLC, a Delaware limited liability company, Xxxxxxx Louisiana Investors Property Owner, LLC, a Delaware limited liability company, Xxxxxxx Xxxxxx Property Owner, LLC, a Delaware limited liability company and Xxxxxxx Xxxxxxxx Property Owner, LLC, a Delaware limited liability company, as Tenants-in-Common, collectively, as the original ground lessee (the “Original Xxxxxxx Ground Lessee”), dated as of June 29, 2020, as assigned by that certain Assignment and Assumption of Ground Lease and Memorandum of Assignment, dated as of June 15, 2022 by and between Original Xxxxxxx Ground Lessee, as assignor, and Xxxxxxx Ground Lease Borrower, as assignee, as the same may hereafter be amended, restated, supplemented or modified from time to time in accordance with this Agreement.

“Xxxxxxx Ground Lease Borrower” shall mean 0000 Xxxxxxx Xxx., LLC, a Delaware limited liability company.

“Xxxxxxx Ground Lessor” shall mean, collectively, 4701 WA Associates TIC 1, LLC, a Delaware limited liability company, 4701 WA Associates TIC 2, LLC, a Delaware limited liability company and 4701 WA Associates TIC 3, LLC, a Delaware limited liability company, as Tenants-in-Common.

“Write‑Down and Conversion Powers” means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EEA Bail-In Legislation Schedule and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.

“Zoning Reports” shall mean those certain planning and zoning reports provided to Lender in connection with the origination of the Loan.

Section 1.2 Principles of Construction. All references to Sections and schedules are to Sections and schedules in or to this Agreement unless otherwise specified. All uses of the word “including” shall mean “including, without limitation” unless the context shall indicate otherwise. Unless otherwise specified, the words “hereof”, “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. Unless otherwise specified, all meanings attributed to defined terms herein shall be equally applicable to both the singular and plural forms of the terms so defined.

ARTICLE II

GENERAL TERMS

Section 2.1 Loan Commitment; Disbursement to Borrower

2.1.1 Agreement to Lend and Borrow. Subject to and upon the terms and conditions set forth herein, Xxxxxx hereby agrees to make, and Xxxxxxxx hereby agrees to accept, the Loan on the Closing Date.

2.1.2 No Reborrowings. Any amount borrowed and repaid hereunder in respect of the Loan may not be re-borrowed. Xxxxxxxx acknowledges and agrees that the Loan was fully funded as of the Closing Date.

2.1.3 Intentionally Omitted.

2.1.4 The Note, Mortgages and Loan Documents. The Loan shall be evidenced by the Note and secured by the Mortgages and the other Loan Documents.

2.1.5 Use of Proceeds. Borrower used the proceeds of the Loan to (a) to acquire or recapitalize the recent acquisitions of the Properties (including a distribution of Loan proceeds to its parent(s) in order to pay the merger consideration in connection with the acquisition of the indirect parent of Borrowers, (b) pay carrying costs with respect to the Properties, (c) make deposits (if any) into the Reserve Funds on the Closing Date in the amounts provided herein, if any, (d) pay costs and expenses incurred in connection with the closing of the Loan, the operation of the Properties and other transaction costs, (e) make distributions to any direct or indirect equity holders in Borrower, (f) fund any working capital requirements of the Properties, and (g) to the extent any proceeds of the Loan remain after satisfying clauses (a) through (f), to fund such other general purposes as Borrower shall determine in its sole discretion.

2.1.6 Components of the Loan. For the purpose of computing interest payable from time to time on the principal amount of the Loan and certain other computations set forth herein, the principal balance of the Loan shall be divided into Component A, Component B, Component C, Component D, Component E and Component HRR. The initial principal amount of the Components shall be as follows:

COMPONENT	INITIAL PRINCIPAL AMOUNT
A	$	1,938,200,000.00
B	$	295,900,000.00
C	$	224,100,000.00
D	$	304,300,000.00
E	$	40,000,000.00
HRR	$	147,500,000.00

Section 2.2 Interest Rate

2.2.1 Interest Rate. Except as herein provided with respect to interest accruing at the Default Rate, subject to Section 2.2.4, interest on each Component outstanding from time to time shall, subject to Section 2.2.5, accrue at the SOFR Rate from (and including) the Closing Date until (and including) the Maturity Date. Borrower shall pay to Lender on each Payment Date the interest accrued on the Outstanding Loan Amount for the related Interest Period.

2.2.2 Interest Calculation. Interest on the outstanding principal balance of each Component of the Loan shall be calculated by multiplying (a) the actual number of days elapsed in the relevant Interest Period for which such calculation is being made by (b) a daily rate based on the Interest Rate applicable to such Component and a three hundred sixty (360) day year by (c) the Outstanding Loan Amount.

2.2.3 Default Rate. In the event that, and for so long as, any Event of Default shall have occurred and be continuing, the Outstanding Loan Amount and, to the extent

permitted by law, all accrued and unpaid interest in respect of the Loan and any other amounts due pursuant to the Loan Documents, shall accrue interest at the Default Rate, calculated from the date such payment was due without regard to any grace or cure periods contained herein. Interest at the Default Rate shall be computed from the occurrence of the Event of Default until (i) in the event of an Event of Default that is non‑monetary in nature, the cure of such Event of Default by Borrower or (ii) in the event of an Event of Default that is monetary in nature, the actual receipt and collection of the Debt (or that portion thereof that is then due). This Section 2.2.3 shall not be construed as an agreement or privilege to extend the date of the payment of the Debt, nor as a waiver of any other right or remedy accruing to Lender by reason of the occurrence of any Event of Default, and Xxxxxx retains its rights under the Note and this Agreement to accelerate and to continue to demand payment of the Debt during the continuance of any Event of Default.

2.2.4 Usury Savings. This Agreement, the Note and the other Loan Documents are subject to the express condition that at no time shall Borrower be obligated or required to pay interest on the principal balance of the Loan at a rate which could subject Lender to either civil or criminal liability as a result of being in excess of the Maximum Legal Rate. If, by the terms of this Agreement or the other Loan Documents, Borrower is at any time required or obligated to pay interest on the principal balance due hereunder at a rate in excess of the Maximum Legal Rate, the Interest Rate or the Default Rate, as the case may be, shall be deemed to be immediately reduced to the Maximum Legal Rate and all previous payments in excess of the Maximum Legal Rate shall be deemed to have been payments in reduction of principal and not on account of the interest due hereunder. All sums paid or agreed to be paid to Lender for the use, forbearance, or detention of the sums due under the Loan, shall, to the extent permitted by applicable law, be amortized, prorated, allocated, and spread throughout the full stated term of the Loan until payment in full so that the rate or amount of interest on account of the Loan does not exceed the Maximum Legal Rate of interest from time to time in effect and applicable to the Loan for so long as the Loan is outstanding.

2.2.5 Determination of Interest Rate.

(a) Interest Rate. The Interest Rate with respect to each Note of the Loan shall be: (A) the SOFR Rate with respect to the applicable Interest Period if the Loan is a SOFR Loan, (B) the Alternate Rate with respect to the applicable Interest Period if the Loan is an Alternate Rate Loan or (C) the Prime Rate with respect to the applicable Interest Period if the Loan is a Prime Rate Loan, in each case determined by Lender as of the Determination Date.

(b) Benchmark Unavailability Period. During a Benchmark Unavailability Period, following Xxxxxxxx’s receipt of notice of the commencement of such Benchmark Unavailability Period, the component of the Interest Rate based on Term SOFR (or the then-current Benchmark if the Loan is then an Alternate Rate Loan) shall be replaced, as of the first day of the next succeeding Interest Period and for the remainder of such Benchmark Unavailability Period, with the Prime Index Rate and the Loan shall be converted to a Prime Rate Loan bearing interest based on the Prime Rate in effect on each applicable Determination Date.

(c) Subject to the terms and conditions hereof, the Loan shall be either a SOFR Loan, a Prime Rate Loan or an Alternate Rate Loan, as applicable, and Borrower shall pay interest on the Outstanding Loan Amount at the SOFR Rate, the Prime Rate or at the Alternate Rate, as applicable, for the applicable Interest Period. Each determination by Lender of the Interest Rate shall be conclusive and binding for all purposes, absent manifest error.

(d) Effect of a Benchmark Transition Event.

(i) Notwithstanding anything to the contrary herein or in any other Loan Document, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred prior to the Periodic Term SOFR Determination Day (or if the Benchmark is not the Term SOFR Reference Rate, the Determination Date) for any Interest Period, the Alternate Index Rate will replace the then current Benchmark for all purposes hereunder or under any Loan Document in respect of such determination and all determinations on all subsequent Periodic Term SOFR Determination Days (or if the Benchmark is not the Term SOFR Reference Rate, the Determination Dates) (without any amendment to, or further action or consent of any other party to, this Agreement).

(ii) In connection with the use, administration, adoption, or implementation of an Alternate Index Rate, Lender will have the right to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of the Borrower or any other party to this Agreement or any other Loan Document.

(iii) Lender will promptly notify Borrower of (i) any Benchmark Replacement Date, (ii) the implementation of any Alternate Index Rate, (iii) the effectiveness of any Conforming Changes, and/or (iv) any Benchmark Unavailability Period. Any determination, decision or election that is made by Lender pursuant to and in accordance with this Section, including any determination with respect to a rate or adjustment or of the occurrence or nonoccurrence of a Benchmark Replacement Date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error.

(iv) Notwithstanding any provision of this Agreement to the contrary, in no event shall Borrower have the right to convert (i) a SOFR Loan to a Prime Rate Loan or an Alternate Rate Loan, (ii) a Prime Rate Loan to a SOFR Loan or an Alternate Rate Loan or (iii) an Alternate Rate Loan to a SOFR Loan or a Prime Rate Loan.

(e) If the adoption of any requirement of law or any change therein or in the interpretation or application thereof, shall hereafter make it unlawful for Lender to make or maintain a SOFR Loan or Alternate Rate Loan as contemplated hereunder, (i) the

obligation of Lender hereunder to make a SOFR Loan or Alternate Rate Loan or to convert a Prime Rate Loan to a SOFR Loan or an Alternate Rate Loan shall be canceled forthwith and (ii) any outstanding SOFR Loan or Alternate Rate Loan shall be converted automatically to a Prime Rate Loan on the first day of the next succeeding Interest Period or within such earlier period as required by law. Xxxxxxxx hereby agrees promptly to pay Lender, upon demand, any additional amounts necessary to compensate Lender for any costs incurred by Lender in making any conversion in accordance with this Agreement, including, without limitation, any interest or fees actually payable by Lender to lenders of funds obtained by it in order to make or maintain the SOFR Loan hereunder. Xxxxxx’s notice of such costs, as certified to Borrower, shall be conclusive absent manifest error.

(f) In the event that any change in any requirement of law or in the interpretation or application thereof, or compliance by Lender with any request or directive (whether or not having the force of law) hereafter issued from any central bank or other Governmental Authority:

(i) shall hereafter impose, modify or hold applicable any reserve, special deposit, compulsory loan or similar requirement against assets held by, or deposits or other liabilities in or for the account of, advances or loans by, or other credit extended by, or any other acquisition of funds by, any office of Lender which is not otherwise included in the determination of the Applicable Index Rate hereunder;

(ii) shall hereafter have the effect of reducing the rate of return on Lender’s capital (other than as a result of Section 2.9 Taxes) as a consequence of its obligations hereunder to a level below that which Xxxxxx could have achieved under the Loan Documents but for such adoption, change or compliance (taking into consideration Lender’s policies with respect to capital adequacy) by any amount deemed by Lender to be material;

(iii) shall hereafter subject any Lender to any Section 2.9 Taxes (other than Non-Excluded Taxes and Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or

(iv) shall hereafter impose on Lender any other condition (other than Section 2.9 Taxes) and the result of any of the foregoing is to increase the cost to Lender of making, renewing or maintaining loans or extensions of credit or to reduce any amount receivable hereunder;

then, in any such case, Borrower shall promptly pay Lender, upon demand, any additional amounts necessary to compensate Lender for such additional cost or reduced amount receivable which Lender deems to be material as determined by Lender in its reasonable discretion. If Xxxxxx becomes entitled to claim any additional amounts pursuant to this Section 2.2.5(f), Lender shall provide Borrower with not less than thirty (30) days written notice specifying in reasonable detail the event by reason of which it has become so entitled and the additional amount required to fully compensate Lender for such additional cost or reduced amount. A certificate as to any additional

costs or amounts payable pursuant to the foregoing sentence submitted by Xxxxxx to Borrower shall be conclusive in the absence of manifest error. Subject to Section 2.2.5(h) hereof, this provision shall survive payment of the Note and the satisfaction of all other obligations of Borrower under this Agreement and the Loan Documents.

(g) Lender shall not be entitled to claim compensation pursuant to this Section 2.2.5 for any increased cost or reduction in amounts received or receivable hereunder, or any reduced rate of return, which was incurred or which accrued prior to the earlier of (i) ninety (90) days before the date Lender notified Borrower of the change in law or other circumstance on which such claim for compensation is based and delivered to Borrower a written statement setting forth in reasonable detail the basis for the calculation of the additional amounts owed to Lender under this Section 2.2.5, which statement shall be conclusive and binding on all parties absent manifest error, and (ii) any earlier date provided Xxxxxx notified Borrower of such change in law or circumstance and delivered the written statement referenced in clause (i) within ninety (90) days after Xxxxxx received written notice of such change in law or circumstance.

(h) Xxxxxxxx agrees to indemnify Lender and to hold Lender harmless from any actual out-of-pocket loss or expense which Lender sustains or incurs as a consequence of (i) any default by Borrower in payment of the principal of or interest on a SOFR Loan or Alternate Rate Loan, including, without limitation, any such loss or expense arising from interest or fees payable by Lender to third-party lenders of funds obtained by it in order to maintain a SOFR Loan or Alternate Rate Loan hereunder, (ii) any prepayment (whether voluntary or mandatory) of the SOFR Loan or Alternate Rate Loan on a day that (A) is not a Payment Date or (B) is a Payment Date if Borrower did not give the prior written notice of such prepayment required pursuant to the terms of this Agreement, including, without limitation, such loss or expense arising from interest or fees payable by Lender to third-party lenders of funds obtained by it in order to maintain the SOFR Loan or Alternate Rate Loan hereunder and (iii) the conversion pursuant to the terms hereof of the SOFR Loan to a Prime Rate Loan or an Alternate Rate Loan on a date other than the Payment Date, including, without limitation, such loss or expenses arising from interest or fees payable by Lender to third-party lenders of funds obtained by it in order to maintain a SOFR Loan or Alternate Rate Loan hereunder (the amounts referred to in clauses (i), (ii) and (iii) are herein referred to collectively as the “Breakage Costs”), subject to Section 2.4.1 and Section 2.4.4; provided, however, (x) in no event shall Breakage Costs with respect to any instance of the foregoing exceed the interest that would be payable on the Loan through the end of the then-current Interest Period, (y) Borrower shall not indemnify Lender from any loss or expense arising from Lender’s willful misconduct or gross negligence and (z) Breakage Costs with respect to any instance of the foregoing shall only be payable to Lender if such Breakage Costs arise from interest or fees payable by Xxxxxx to third-party lenders of funds obtained by it in order to maintain a SOFR Loan hereunder. This provision shall survive payment of the Note in full and the satisfaction of all other obligations of Borrower under this Agreement and the other Loan Documents.

2.2.6 Additional Costs. Lender will use reasonable efforts (consistent with legal and regulatory restrictions) to maintain the availability of the SOFR Loan or Alternate Rate Loan, as applicable, and to avoid or reduce any increased or additional costs payable by

Borrower under Section 2.2.5(f), including, if requested by Xxxxxxxx, a transfer or assignment of the Loan to a branch, office or Affiliate of Lender in another jurisdiction, or a redesignation of its lending office with respect to the Loan, in order to maintain the availability of the SOFR Loan or Alternate Rate Loan, as applicable, or to avoid or reduce such increased or additional costs, provided that the transfer or assignment or redesignation (a) would not result in any additional costs, expenses or risk to Lender that are not reimbursed by Xxxxxxxx and (b) would not be disadvantageous in any other respect to Lender (including the effect on any Securitization) as determined by Xxxxxx in its reasonable discretion.

2.2.7 Interest Rate Protection Agreement.

(a) Prior to or contemporaneously with the Closing Date, Borrower Interest Rate Cap Party shall enter into an Interest Rate Protection Agreement with a strike price no greater than the Initial Strike Price or, if the Alternate Strike Price Condition has been satisfied, the Alternate Strike Price. The Interest Rate Protection Agreement (i) shall at all times be in a form and substance reasonably acceptable to Lender with respect to such matters not otherwise set forth in this Agreement, (ii) shall at all times be with an Acceptable Counterparty, (iii) shall direct such Acceptable Counterparty to deposit directly into the Cap Account, or during the continuance of an Event of Default, as directed by Lender, any amounts due Borrower Interest Rate Cap Party under such Interest Rate Protection Agreement so long as any portion of the Debt exists, provided that the Debt shall be deemed to exist if the Properties are transferred by judicial or non‑judicial foreclosure or deed‑in‑lieu thereof, (iv) shall be for a term through the end of the then-applicable Maturity Date of the Loan (or to the extent a Rated Securitization has occurred, through the end of the Interest Period associated with the then-applicable Maturity Date of the Loan) and (v) shall at all times have a notional amount equal to (or at Borrower’s sole discretion, greater than) the then Outstanding Loan Amount and shall at all times provide for the Applicable Strike Price or, if the Alternate Strike Price Condition has been satisfied, the Alternate Strike Price. Borrower Interest Rate Cap Party shall collaterally assign to Lender, pursuant to the Collateral Assignment of Interest Rate Cap Agreement (the “Assignment of Interest Rate Protection Agreement”), all of its right, title and interest to receive any and all payments under the Interest Rate Protection Agreement, and shall deliver to Lender an executed counterpart of such Interest Rate Protection Agreement (which shall, by its terms, authorize the assignment to Lender and require that payments be deposited directly into the Cap Account) and shall notify the Acceptable Counterparty of such assignment.

(b) Borrower Interest Rate Cap Party shall comply with all of its obligations under the terms and provisions of the Interest Rate Protection Agreement. All amounts paid by the Acceptable Counterparty under the Interest Rate Protection Agreement to Borrower Interest Rate Cap Party or Lender shall be directly deposited in the Cap Account, or during the continuance of an Event of Default, as directed by Xxxxxx. Borrower Interest Rate Cap Party shall take all actions reasonably requested by Xxxxxx to enforce Xxxxxx’s rights under the Interest Rate Protection Agreement in the event of a default by the Acceptable Counterparty. Borrower Interest Rate Cap Party shall not waive, amend or otherwise modify any of Borrower Interest Rate Cap Party’s rights thereunder without Xxxxxx’s prior

written consent; provided, however, Borrower Interest Rate Cap Party may agree to amend an Interest Rate Protection Agreement without first obtaining Lender’s consent, solely for the purpose of reducing the notional amount under such Interest Rate Protection Agreement, provided that the notional amount, after giving effect to such amendment, is at least equal to the then Outstanding Loan Amount (a “Notional Amount Reduction”), and any payment that is owing to Borrower Interest Rate Cap Party by such Acceptable Counterparty in connection with a Notional Amount Reduction shall not be considered a part of Lender’s collateral. Lender shall, at the request of Xxxxxxxx, direct the Counterparty to permit a Notional Amount Reduction to the extent required by a Counterparty, and otherwise reasonably cooperate with Borrower, at Borrower’s sole cost and expense, in order to effectuate a Notional Amount Reduction.

(c) In the event that the counterparty to the Interest Rate Protection Agreement (or the guarantor of such counterparty’s obligations, if any) is no longer an Acceptable Counterparty (whether as a result of downgrade, withdrawal or qualification of the rating of such counterparty (or the guarantor of such counterparty’s obligations, if any)), Borrower Interest Rate Cap Party shall replace or cause the cap provider to replace the Interest Rate Protection Agreement with a Replacement Interest Rate Protection Agreement not later than the period of time provided for in such Interest Rate Protection Agreement following such downgrade, withdrawal or qualification (not to exceed ten (10) Business Days), provided, Borrower Interest Rate Cap Party shall not be required to replace the Interest Rate Protection Agreement with a Replacement Interest Rate Protection Agreement so long as within ten (10) Business Days of such downgrade, withdrawal or qualification, the Acceptable Counterparty under the Interest Rate Protection Agreement either (x) provides a guaranty of its obligations from a guarantor that is an Acceptable Counterparty pursuant to such terms as (1) prior to a Rated Securitization, are reasonably acceptable to Lender and (2) following a Rated Securitization, are acceptable to the Rating Agencies or (y) posts collateral pursuant to a credit support annex that was executed on the effective date of the Interest Rate Protection Agreement, which credit support annex is (1) prior to a Rated Securitization, reasonably acceptable to the Lender and (2) following a Rated Securitization, satisfies all applicable Rating Agency criteria.

(d) In the event that Borrower Interest Rate Cap Party fails to purchase and deliver to Lender the Interest Rate Protection Agreement or fails to maintain the Interest Rate Protection Agreement in accordance with the terms and provisions of this Agreement, Lender may purchase the Interest Rate Protection Agreement and the cost incurred by Lender in purchasing such Interest Rate Protection Agreement shall be paid by Borrower to Lender with interest thereon at the Default Rate from the date such cost was incurred by Lender until such cost is reimbursed by Borrower to Lender.

(e) In connection with the Interest Rate Protection Agreement, if requested by Lender, Borrower Interest Rate Cap Party shall obtain and deliver to Lender within fifteen (15) Business Days following (x) the Closing Date or (y) the later of (A) the first day of any applicable Extension Term or (B) Borrower’s entrance into an Interest Rate Protection Agreement in accordance with Section 2.8 hereof, as applicable (i) a resolution/consent, as applicable, of the Acceptable Counterparty authorizing the delivery of the Interest Rate Protection Agreement reasonably acceptable to Lender, and (ii) an opinion (which may be

in pdf form) from counsel (which counsel may be in‑house counsel for the Acceptable Counterparty and otherwise on such Acceptable Counterparty’s then-customary form) for the Acceptable Counterparty (upon which Lender may rely) which shall provide, in relevant part, that:

(i) the Acceptable Counterparty is validly existing, and in good standing under the laws of its jurisdiction of incorporation or formation and has the organizational power and authority to execute and deliver, and to perform its obligations under, the Interest Rate Protection Agreement;

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

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

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

(f) At such time as the Loan is repaid in full, all of Xxxxxx’s right, title and interest in and to the Interest Rate Protection Agreement shall automatically terminate and Lender shall execute and deliver such documents as may be required to evidence Xxxxxx’s release of the Interest Rate Protection Agreement and to notify Acceptable Counterparty of such release.

(g) Notwithstanding anything to the contrary contained in this Section 2.2.7 or elsewhere in this Agreement, if, at any time, the Loan is converted from (I) a SOFR Loan to either a Prime Rate Loan or an Alternate Rate Loan, (II) a Prime Rate Loan to an Alternate Rate Loan or (III) an Alternate Rate Loan to an Alternate Rate Loan based on a

different Alternate Index Rate in accordance with Section 2.2.5 hereof (each, a “Index Rate Conversion”), then:

(i) within thirty (30) days after such Index Rate Conversion, Borrower Interest Rate Cap Party shall either (A) enter into, make all payments under, and satisfy all conditions precedent to the effectiveness of, a Substitute Interest Rate Protection Agreement (and in connection therewith, but not prior to Borrower Interest Rate Cap Party taking all the actions described in this clause (i), Borrower Interest Rate Cap Party shall have the right to terminate any then-existing Interest Rate Protection Agreement) or (B) cause the then-existing Interest Rate Protection Agreement to be modified such that such then-existing Interest Rate Protection Agreement satisfies the requirements of a Substitute Interest Rate Protection Agreement as set forth below in the definition thereof (a “Converted Interest Rate Protection Agreement”); and

(ii) on or after such Index Rate Conversion (provided Lender has not converted the Loan back to a SOFR Loan in accordance with Section 2.2.5(c) hereof), in lieu of satisfying the condition described in Section 2.8(c) with respect to any outstanding Extension Term, Borrower Interest Rate Cap Party shall instead enter into, make all payments under, and satisfy all conditions precedent to the effectiveness of a Substitute Interest Rate Protection Agreement on or prior to the first day of such Extension Term.

(h) As used herein, “Substitute Interest Rate Protection Agreement” shall mean an interest rate protection agreement between an Acceptable Counterparty and Borrower Interest Rate Cap Party, obtained by Borrower Interest Rate Cap Party and collaterally assigned to Lender pursuant to this Agreement and shall contain each of the following:

(i) a term expiring no earlier than the then-applicable Maturity Date or, to the extent a Rated Securitization has occurred, through the end of the Interest Period associated with the then applicable Maturity Date;

(ii) the notional amount of the Substitute Interest Rate Protection Agreement shall be equal to (or at Borrower’s sole discretion, greater than) the then Outstanding Loan Amount;

(iii) it provides that the only obligation of Borrower Interest Rate Cap Party thereunder is the making of a single payment to the Acceptable Counterparty thereunder upon the execution and delivery thereof;

(iv) it provides to Lender and Borrower Interest Rate Cap Party (as determined by Lender in its sole but good faith discretion) for the term of the Substitute Interest Rate Protection Agreement, a hedge against rising interest rates that is no less beneficial to Borrower Interest Rate Cap Party and Lender than (A) in the case of clause 2.2.7(g)(i) above, that which was provided by the Interest Rate Protection Agreement being replaced by the Substitute Interest Rate Protection Agreement and (B) in the case of clause 2.2.7(g)(ii) above, that which was intended

to be provided by the Interest Rate Protection Agreement that, but for the operation of this Section 2.2.7(h), would have been required to have been delivered by Borrower Interest Rate Cap Party pursuant to Section 2.8(c) hereof as a condition to the requested Extension Term; and

(v) without limiting any of the provisions of the preceding clauses (i) through (iv) above, it satisfies all of the requirements set forth in clauses (i) through (iii) of Section 2.2.7(a) hereof.

From and after the date of any Index Rate Conversion, all references to “Interest Rate Protection Agreement” and “Replacement Interest Rate Protection Agreement” herein (other than in the definition of “Interest Rate Protection Agreement”, the definition of “Replacement Interest Rate Protection Agreement” and as referenced in the first sentence of Section 2.2.7(a) hereof) shall be deemed to refer or relate, as applicable, to a Substitute Interest Rate Protection Agreement or a Converted Interest Rate Protection Agreement, as the case may be.

Notwithstanding anything to the contrary set forth in this Section 2.2.7, Borrower shall not be required to obtain a Substitute Interest Rate Protection Agreement or Converted Interest Rate Protection Agreement, as applicable, during any period when the Loan is outstanding as a Prime Rate Loan (a) if the Index Rate Conversion occurs prior to a Rated Securitization, if such a Substitute Interest Rate Protection Agreement or Converted Interest Rate Protection Agreement, as the case may be, is (1) not then commercially available at commercially reasonable rates and (2) not required for commercial mortgage loans similar to the Loan or (b) if the Index Rate Conversion occurs following a Rated Securitization, if a Substitute Interest Rate Protection Agreement or Converted Interest Rate Protection Agreement, as the case may be, is not then commercially available. If Borrower is not required to obtain a Substitute Interest Rate Protection Agreement or Converted Interest Rate Protection Agreement pursuant to the terms of this Section 2.2.7, then Borrower and Xxxxxx shall work together to find a mutually agreeable alternative to a Substitute Interest Rate Protection Agreement or Converted Interest Rate Protection Agreement that would afford Lender substantially equivalent protection from increases in the interest rate.

Section 2.3 Loan Payment

2.3.1 Monthly Debt Service Payments. Borrower shall pay to Lender (a) on the Closing Date, an amount equal to interest only on the Outstanding Loan Amount for the initial Interest Period and (b) on the Payment Date occurring in September, 2024, and on each Payment Date thereafter up to and including the Maturity Date, the Monthly Debt Service Payment Amount.

2.3.2 Payments Generally. The first Interest Period hereunder shall commence on and include July 25, 2024 and shall end on and include August 14, 2024. Thereafter during the term of the Loan, each Interest Period shall commence on the fifteenth (15^th) day of the calendar month preceding the calendar month in which the related Payment Date occurs and shall end on and include the fourteenth (14^th) day of the calendar month in which the related Payment Date occurs. For purposes of making payments hereunder, but not for purposes of calculating Interest Periods, if the day on which such payment is due is not a Business Day, then amounts due on such date shall be due on the immediately preceding

Business Day and with respect to payments of principal of the Loan due on the Maturity Date, interest shall be payable at the Interest Rate or the Default Rate, as the case may be, through and including (x) with respect to any portion of the Loan that is not subject to a Rated Securitization, the Maturity Date or (y) with respect to any portion of the Loan that is subject to a Rated Securitization, the last day of the related Interest Period. All amounts due pursuant to this Agreement and the other Loan Documents shall be payable without setoff, counterclaim, defense or any other deduction whatsoever unless required by applicable law. In connection with the first pooled Securitization of the Loan, Lender shall have the right, in its sole discretion, upon not less than ten (10) Business Days prior written notice to Borrower, to change the Payment Date to a different calendar day and/or the Interest Period to different starting and ending calendar days and, if requested by Xxxxxx, Borrower shall promptly execute an amendment to this Agreement to evidence such changes; provided, however, that if Lender shall have elected to change the Payment Date as aforesaid, Lender shall also be required to adjust the Interest Period such that the Payment Date is the day following the last day of the Interest Period. All payments of principal and interest shall be applied to Note A-1, Note A-2, Note A-3, Note A-4, Note A-5, Note A-6, Note A-7, Note A-8 and Note A-9 on a pro rata and pari passu basis.

2.3.3 Payment on Maturity Date. Borrower shall pay to Lender on the Maturity Date the Outstanding Loan Amount, all accrued and unpaid interest and all other amounts due hereunder and under the Note, the Mortgages and the other Loan Documents.

2.3.4 Late Payment Charge. If any principal, interest or any other sums due under the Loan Documents (excluding the balloon payment due on the Maturity Date) are not paid by Borrower on or before the date on which it is due, Borrower shall pay to Lender upon demand an amount equal to the lesser of three percent (3%) of such unpaid sum and the Maximum Legal Rate 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. Any such amount shall be secured by the Mortgages and the other Loan Documents to the extent permitted by applicable law.

2.3.5 Method and Place of Payment. Except as otherwise specifically provided herein, all payments and prepayments under this Agreement and the Note shall be made to Lender not later than 1:00 p.m., New York City time, on the date when due and shall be made in lawful money of the United States of America in immediately available funds at Xxxxxx’s office or as otherwise directed by Xxxxxx, and any funds received by Lender after such time shall, for all purposes hereof, be deemed to have been paid on the next succeeding Business Day.

Section 2.4 Prepayments

2.4.1 Voluntary Prepayments.

(a) Borrower may, at its option, prepay the Debt in full or in part at any time and from time to time; provided, that, (i) Borrower gives Lender not less than five (5) days prior written notice (which notice shall be revocable and subject to modification) (a “Prepayment Notice”) of the amount of the Loan that Borrower intends to prepay and the

intended date of prepayment; (ii) if such prepayment occurs following a Rated Securitization of any portion of the Loan and is made during the Interest Shortfall Period, Borrower shall pay to Lender the Interest Shortfall, if any, estimated by Lender to be due in connection with such prepayment, provided, that (1) in the event a portion (but not all) of the Loan is subject to such Rated Securitization, the Interest Shortfall shall only be payable with respect to such portion of the Loan that is subject to such Rated Securitization, and (2) once the Interest Rate for the next occurring Interest Period can be determined, Lender shall calculate the actual amount of interest required to be paid by Borrower for such prepayment and (x) if the Interest Shortfall paid to Lender is in excess of the amount required to be paid pursuant to this Section 2.4.1(a), Lender shall promptly return to Borrower such excess amount and (y) if the Interest Shortfall is less than the amount required to be paid pursuant to this Section 2.4.1(a), Borrower shall pay to Lender within three (3) Business Days of notice from Lender, the amount of such deficiency; and (iii) Borrower pays Lender, in addition to the portion of the Outstanding Loan Amount to be prepaid, (A) all interest which would have accrued on the amount of the Debt to be prepaid through and including (without duplication of any Interest Shortfall paid by Borrower) (x) if such prepayment occurs with respect to any portion of the Loan that is not subject to a Rated Securitization, the date on which such prepayment is made or (y) if such prepayment occurs with respect to any portion of the Loan that is subject to a Rated Securitization, the last day of the Interest Period related to the Payment Date next occurring following the date of such prepayment, or, if such prepayment occurs on a Payment Date, interest which would have accrued on the amount of the Debt to be prepaid through and including the last day of the Interest Period related to such Payment Date (all such interest payable under this clause (A), the “Additional Interest”); (B) (I) all other sums due and payable under this Agreement, the Note, and the other Loan Documents, including, but not limited to the actual Breakage Costs (if any and provided that if such prepayment includes the payment of Additional Interest, no Breakage Costs shall be payable to Lender) and (II) all of Lender’s reasonable, out-of-pocket costs and expenses (including reasonable actually incurred attorneys’ fees and disbursements) actually incurred by Lender in connection with such prepayment or in connection with a rescinded or extended Prepayment Notice; and (C) subject to Section 2.4.1(b), if such prepayment occurs prior to the Open Prepayment Date and such prepaid amount is in excess of the Free Prepayment Amount, any Spread Maintenance Premium then due and payable on the amount of such excess over the Free Prepayment Amount. Notwithstanding anything to the contrary contained in this Section 2.4.1(a), Borrower may rescind a Prepayment Notice upon delivery of written notice to Lender on or prior to the date specified for prepayment in the Prepayment Notice; provided Borrower shall be responsible for the reasonable, out-of-pocket costs and expenses actually incurred by Lender in connection with the rescission of such Prepayment Notice, including any applicable actual Breakage Costs and reasonable actually incurred attorneys’ fees.

(b) Notwithstanding the other provisions of this Section 2.4.1, at any time and from time to time after the Closing Date, including prior to the Open Prepayment Date, Borrower may prepay a portion of the Loan in an aggregate amount up to $885,000,000.00 (the “Free Prepayment Amount” and each such prepayment, an “Initial 30% Prepayment”) without being obligated to pay a Spread Maintenance Premium or other prepayment penalty, premium or charge, provided (i) Borrower provides a Prepayment Notice to Lender in the manner specified in Section 2.4.1(a), (ii) if such prepayment occurs with

respect to any portion of the Loan that is subject to a Rated Securitization of the Loan and is made during the Interest Shortfall Period, Borrower shall pay to Lender the Interest Shortfall with respect to such portion of the Loan subject to a Rated Securitization, if any, estimated by Lender to be due in connection with such prepayment, provided, that once the Interest Rate for the next occurring Interest Period can be determined, Lender shall calculate the actual amount of interest required to be paid by Borrower for such prepayment and (x) if the Interest Shortfall paid to Lender is in excess of the amount required to be paid pursuant to this Section 2.4.1(b), Lender shall promptly return to Borrower such excess amount and (y) if the Interest Shortfall is less than the amount required to be paid pursuant to this Section 2.4.1(b), Borrower shall pay to Lender within three (3) Business Days of notice from Lender, the amount of such deficiency; and (iii) Borrower pays Lender, in addition to the portion of the Outstanding Loan Amount to be prepaid, (A) Additional Interest and (B) all other sums due and payable under this Agreement, the Note, and the other Loan Documents, including, but not limited to the actual Breakage Costs (if any and provided that if such prepayment includes the payment of Additional Interest, no Breakage Costs shall be payable to Lender) and all of Lender’s reasonable, out-of-pocket costs and expenses (including reasonable actually incurred attorneys’ fees and disbursements) actually incurred by Lender in connection with such prepayment. Notwithstanding anything to the contrary contained herein, any Casualty/Condemnation Prepayment, prepayments of the Loan made in connection with the terms and conditions of Section 2.4.2 hereof or prepayments of the Loan made in connection with a Default Release and/or a Ground Lease Default Release, each in accordance with the terms and conditions hereof, shall not constitute an Initial 30% Prepayment and shall not count toward the Free Prepayment Amount. In the event of any release of a portion of an Individual Property that is not (x) a full Individual Property release subject to Section 2.6.1 hereof or (y) a release of any Release Parcel/Rights subject to Section 2.6.2 hereof, Xxxxxx agrees that consent to such release shall not be conditioned upon a prepayment of the Loan in excess of the lesser of (x) Lender’s Allocation of one hundred percent (100%) of the Net Sales Proceeds derived from the sale of such portion of such Individual Property or (y) the agreed upon release amount for the release of such portion of the Individual Property, unless a greater amount is required to be prepaid in order for the Securitization to maintain its status as a REMIC Trust.

(c) Upon receipt by Lender of any (i) voluntary prepayment of the Loan permitted pursuant to the terms of this Agreement, (ii) prepayments of the Loan made in connection with a release of any Individual Property or Release Parcel/Rights (if any) from the Lien of the Mortgage in excess of the Allocated Loan Amount of the applicable Individual Property or Release Parcel/Rights (if any), or (iii) prepayments of the Loan made in connection with the terms and conditions of Section 2.4.2 hereof in excess of the Allocated Loan Amount of the applicable Individual Property or Release Parcel/Rights (if any), in each case the Allocated Loan Amount for each Individual Property or Release Parcel/Rights (if any) which is then subject to the Lien of the Mortgages shall be reduced on a pro rata basis by the amount of such excess.

(d) Subject to the following sentence, if a Mezzanine Loan is outstanding, the Mezzanine Loan may not be voluntarily prepaid in whole or in part unless there is a simultaneous pro rata prepayment of the Loan and the Mezzanine Loan. Notwithstanding

the foregoing and for so long as no Event of Default has occurred and is continuing, at the option of Borrower and/or New Mezzanine Borrower, any voluntary prepayments may be applied by New Mezzanine Borrower to the New Mezzanine Loan in reverse sequential order (i.e., first, to the New Mezzanine Loan until the New Mezzanine Loan is paid in full) in accordance with the New Mezzanine Loan Documents, without any obligation of Borrower to make a corresponding prepayment of the Loan; provided that the foregoing shall not apply to (i) prepayments made to achieve a Debt Yield Trigger Event Cure, which shall be made concurrently with a pro rata prepayment of the Loan (which portion of which prepayment applicable to the Loan shall be applied in accordance with Section 2.4.4 hereof) and the New Mezzanine Loan, (ii) prepayments made from Excess Cash Flow Reserve Funds, which shall be made concurrently with a pro rata prepayment of the Loan under this Agreement and the New Mezzanine Loan under the New Mezzanine Loan Agreement (provided however, if such prepayments are in an amount in excess of the amount necessary to achieve a Debt Yield Trigger Event Cure and a Cash Sweep Event has not otherwise occurred and is not continuing, then such prepayments in excess of the amount necessary to achieve such Debt Yield Trigger Event Cure may be applied by a New Mezzanine Borrower to the New Mezzanine Loan in reverse sequential order) and (iii) prepayments in connection with a release of any Property from the Lien of the Mortgage (which portion of such prepayment applicable to the Loan shall be applied in accordance with Section 2.4.4 hereof). Provided no Event of Default is continuing, nothing herein or in any other Loan Document shall prohibit New Mezzanine Borrower from prepaying at a discount all or any portion of the New Mezzanine Loan subject to and in accordance with Section 10.33 hereof.

2.4.2 Mandatory Prepayments

(a) On the next occurring Payment Date following the date on which Lender shall receive any Net Proceeds Prepayment that Lender is entitled to apply in accordance with this Section 2.4.2 and not otherwise make available or deliver to Borrower pursuant to Section 6.4, Borrower shall prepay or authorize Lender to apply such Net Proceeds Prepayment as a prepayment of all or a portion of the Outstanding Loan Amount in an amount equal to the aggregate of (1) the Net Proceeds Prepayment up to an amount equal to the Release Amount for the affected Individual Property, (2) following a Rated Securitization of the Loan, all Additional Interest with respect to the portion of the Loan subject to such Rated Securitization and (3) the actual reasonable costs of Lender in connection with such prepayment to the extent such amounts are not paid to Lender in accordance with Article VI hereof, excluding any Breakage Costs (collectively, the “Mortgage Mandatory Prepayment Amount”). Amounts paid to or applied by Xxxxxx as a Mortgage Mandatory Prepayment Amount shall first be applied to amounts required to be paid by Borrower to Lender pursuant to clause (3) above and then to the amounts set forth in clauses (1) and (2) on a pro rata and pari passu basis. Except during the continuance of an Event of Default, any Net Proceeds Prepayment in excess of the Mortgage Mandatory Prepayment Amount applied pursuant to this Section 2.4.2 shall be applied as follows: (A) first, to the Mezzanine Lender, in an amount equal to the Mezzanine Mandatory Prepayment Amount, to be applied in accordance with the Mezzanine Loan Documents and (B) lastly, to Borrower. During the continuance of an Event of Default, Lender may apply such Net Proceeds Prepayment to the Debt (until paid in full) in any order or priority

as Lender may determine in its sole discretion. No Spread Maintenance Premium or other premium or penalty shall be due in connection with any prepayment made pursuant to this Section 2.4.2. The Release Amount for the Individual Property with respect to which such Net Proceeds Prepayment was applied shall be reduced by an amount equal to the principal portion of such prepayment applied to the Loan; provided, that, nothing herein shall be construed to reduce the aggregate Release Amount for any other Individual Property required to be paid to Lender prior to obtaining a release of the applicable Individual Property. Lender shall provide to Borrower, upon ten (10) days’ prior notice, (i) a release of the Individual Property if (A) at any time the Release Amount is reduced to zero, together with such additional documents and instruments evidencing or confirming the release as the Borrower shall reasonably request, or (B) Lender is required to deliver such release pursuant to a court order issued in connection with a Condemnation or (ii) a release of the portion of an Individual Property that is subject to a Condemnation.

(b) As provided in Section 6.4(f) hereof, each Casualty/Condemnation Prepayment tendered by Borrower to Lender in accordance with said Section 6.4(f) shall be in the amount of the Release Amount in respect of the applicable Individual Property. No Spread Maintenance Premium or other penalty or premium shall be due in connection with any such Casualty/Condemnation Prepayment.

(c) In connection with any release under this Section 2.4.2, in the event that such release would result in an Individual Borrower being an Unencumbered Borrower (but subject at all times to the penultimate sentence of Section 2.6.1(f)), such Unencumbered Borrower shall automatically be released by Lender from the obligations of the Loan Documents in accordance with Section 2.6.1(f), except with respect to those obligations and liabilities which expressly survive the repayment of the Loan pursuant to any Loan Document. Xxxxxx agrees to deliver (i) a UCC-3 financing statement termination or amendment releasing Xxxxxx’s security interest in the collateral pledged to Lender relating to each Unencumbered Borrower, and (ii) instruments executed by Lender reasonably necessary to evidence the release or cancellation of each Unencumbered Borrower from its obligations under the Loan Documents. All reasonable costs and expenses incurred by Lender in connection with such release shall be paid by Borrower.

2.4.3 Prepayments After Default. If payment of all or any part of the Debt (other than payment of the Monthly Debt Service Payment Amount then due and payable) is tendered by Borrower or otherwise recovered by Lender (including through application of any Reserve Funds) during the continuance of an Event of Default, such tender or recovery shall be made on the next occurring Payment Date together with the Monthly Debt Service Payment Amount then due and payable and shall, subject to Section 2.6.1(c), be deemed a voluntary prepayment by Borrower pursuant to Section 2.4.1(a) hereof.

2.4.4 Application of Interest and Prepayments to Components. Provided no Event of Default has occurred and is continuing, payments of interest shall be applied by Xxxxxx as follows: (i) first, to the payment of interest then due and payable under Component A; (ii) second, to the payment of interest then due and payable under Component B; (iii) third, to the payment of interest then due and payable under Component C; (iv) fourth, to the payment of interest then due and payable under Component D; (v) fifth, to the payment of

interest then due and payable under Component E and (vi) sixth, to the payment of interest then due and payable under Component HRR. Except for any Initial 30% Prepayment following a Securitization of all or any portion of the Loan any prepayment of the principal of the Loan made pursuant to Section 2.4 hereof shall be applied by Lender as follows: (a) first, to the reduction of the outstanding principal balance of Component A until reduced to zero, (b) second, to the reduction of the outstanding principal balance of Component B until reduced to zero, (c) third, to the reduction of the outstanding principal balance of Component C until reduced to zero, (d) fourth, to the reduction of the outstanding principal balance of Component D until reduced to zero, (e) fifth, to the reduction of the outstanding principal balance of Component E until reduced to zero and (f) sixth, to the reduction of the outstanding principal balance of Component HRR until reduced to zero. Except for any Initial 30% Prepayments, following a Securitization of all or any portion of the Loan any prepayments of the Loan in connection with the release of any Individual Property pursuant to Section 2.6.1 hereof shall be applied to the Components of the Loan as follows: (a) first, to the reduction of the outstanding principal balance of Component A until reduced to zero, (b) second, to the reduction of the outstanding principal balance of Component B until reduced to zero, (c) third, to the reduction of the outstanding principal balance of Component C until reduced to zero, (d) fourth, to the reduction of the outstanding principal balance of Component D until reduced to zero, (e) fifth, to the reduction of the outstanding principal balance of Component E until reduced to zero and (f) sixth, to the reduction of the outstanding principal balance of Component HRR until reduced to zero. Notwithstanding the foregoing, during the continuance of any Event of Default, any payment of principal and interest from whatever source may be applied by Lender between the Components in Xxxxxx’s sole discretion. Notwithstanding the foregoing, so long as no Event of Default is continuing (i) any Initial 30% Prepayments shall be applied to each Component of the Loan on a pro rata and pari passu basis (including any Initial 30% Prepayments made after a Securitization) and (ii) prior to a Rated Securitization of all or any portion of the Loan, any voluntary prepayment of the principal of the Loan made pursuant to Section 2.4 hereof and/or Section 2.6.1 hereof shall be applied to each Component of the Loan on a pro rata and pari passu basis.

Section 2.5 Reallocation of Allocated Loan Amounts. Following the Closing Date and for so long as no Event of Default has occurred and is continuing, Borrower at its sole option and sole cost and expense, may elect to have Lender order a new FIRREA appraisal (or an update to the existing appraisal) of any Individual Properties then secured by the Mortgages conducted by an independent MAI appraiser and conforming to all regulatory requirements, indicating the value of such Individual Properties which are then secured by the Mortgages. Upon receipt of such appraisals (or updates to existing appraisals), at Borrower’s request, Lender shall use reasonable efforts to agree with Borrower, in their reasonable discretion, to reallocate the then outstanding Allocated Loan Amounts related to such Individual Properties based on the “as-is” values of such Individual Properties (inclusive of any portfolio premium) identified in such appraisals (or updates to such appraisals) so long as after giving effect to such reallocation (i) the aggregate Allocated Loan Amounts with respect to the Loan shall be equal to such aggregate amounts immediately prior to such reallocation and (ii) if the Loan is included in a REMIC Trust, Lender shall have received an opinion of counsel that, after giving effect to such reallocation, the Securitization will not fail to maintain its status as a REMIC Trust or be subject the imposition of a tax (including but not limited to the tax on prohibited transactions as defined in Code Section

860(F)(a)(2) and the tax on prohibited contributions as defined in Code Section 860(G)(d)) as a result of such reallocation. In connection with any such reallocation contemplated by this Section 2.5, in no event shall Lender require (i) an amendment to any Mortgage other than for an Individual Property for which such reallocation results in the amount secured by such Mortgage being less than the aggregate Allocated Loan Amount for the applicable Individual Properties secured by such Mortgage after giving effect to such reallocation or (ii) a bring-down or upsizing of the Title Insurance Policy for an Individual Property unless such reallocation results in the amount of coverage under the applicable Title Insurance Policy (including, without limitation, pursuant to any aggregation or tie-in endorsements) for such Individual Property being less than the reallocated Allocated Loan Amount for such Individual Property (or, if such Individual Property is incapable of being tied in with other Individual Properties, less than 125% of the re-allocated Allocated Loan Amount for such Individual Property). Notwithstanding anything to the contrary contained herein, Xxxxxx’s receipt of a Rating Agency Confirmation shall not be required in connection with a reallocation pursuant to this Section 2.5.

Section 2.6 Release of Properties. Except as set forth in Section 2.4.2 or this Section 2.6, no repayment or prepayment of all or any portion of the Loan shall cause, give rise to a right to require, or otherwise result in, the release of any Lien of any Mortgage on any Individual Property. For the avoidance of doubt, any prepayment of the Loan in connection with a Condemnation or Casualty, and the related release of any Lien of any Mortgage on such Property in connection with such Condemnation or Casualty, if applicable, shall be governed solely by Section 2.4.2, Section 6.3 and Section 6.4 hereof.

2.6.1 Release of Individual Property. (a) At any time Borrower may obtain the release of (x) an Individual Property or (y) a Condominium Release Unit, in each case, from the Lien of the Mortgage thereon and related Loan Documents (each such Individual Property, or Condominium Release Unit, as applicable, a “Release Property”) and the release of Borrower’s obligations under the Loan Documents with respect to such Release Property (other than those expressly stated to survive), upon the satisfaction of each of the following conditions:

(i) Borrower shall deliver notice to Lender of the proposed release of such Release Property;

(ii) no Event of Default shall be continuing on the date that the Release Property is released from the Lien of the Mortgage thereon other than as expressly permitted below;

(iii) Borrower shall have paid to Lender the applicable Release Amount together with any Spread Maintenance Premium then required (if any) and if such Release Property is a Condominium Release Unit, the Allocated Loan Amount for such applicable Individual Property shall be deemed reduced by the applicable Condominium Release Unit Amount;

(iv) Borrower shall submit to Lender, not less than ten (10) days prior to the date of such release, a release of Lien (and the related Loan Documents) (or an assignment of Lien and a release of the related Loan Documents) for such Release

Property for execution by Xxxxxx. Such release shall be in a form appropriate in each jurisdiction in which such Release Property is located and that would be reasonably satisfactory to a prudent lender. In addition, Borrower shall provide all documentation Lender reasonably requires to be delivered by Borrower in connection with such release, together with an Officer’s Certificate certifying that such documentation (A) will effect such release in accordance with the terms of this Agreement, and (B) will not impair or otherwise adversely affect the Liens, security interests and other rights of Lender under the Loan Documents not being released (or as to the parties to the Loan Documents and Individual Properties subject to the Loan Documents not being released);

(v) After giving effect to such release, the Debt Yield as of the Debt Yield Determination Date immediately preceding the date of such release (the “Release Debt Yield”) is greater than or equal to the Closing Date Debt Yield; provided, however, that in order to satisfy the Debt Yield requirement set forth in this clause (v), either (x) Borrower may make a prepayment of a portion of the Loan in accordance with Section 2.4.1 hereof in an amount equal to Lender’s Allocation of the Debt Yield Deficiency and, to the extent any Mezzanine Loan is outstanding, Mezzanine Borrower may make a prepayment of a portion of the Mezzanine Loan in accordance with the applicable section of the Mezzanine Loan Agreement in an amount equal to Lender’s Allocation (as defined in the Mezzanine Loan Agreement) of the Debt Yield Deficiency or (y) Borrower may deposit cash with Lender to be held in a Reserve Account as cash collateral for the Loan in accordance with this Agreement in an amount equal to Lender’s Allocation of the Debt Yield Deficiency (the “Borrower DY Deficiency Reserve”) and, if a Mezzanine Loan is outstanding, Mezzanine Borrower may deposit cash with Mezzanine Lender to be held in a reserve account as cash collateral for the Mezzanine Loan in accordance with the Mezzanine Loan Agreement in an amount equal to Lender’s Allocation (as defined in the Mezzanine Loan Agreement) of the Debt Yield Deficiency (the “Mezzanine Borrower DY Deficiency Reserve”); provided, further that in the event the foregoing Debt Yield requirement set forth in this clause (v) is not satisfied and the release of the Release Property is in connection with an arms-length transaction to a third-party Person which is not Controlled by Sponsor and/or, so long as a Blackstone Fund Entity Controls, or is Sponsor, by such Blackstone Fund Entity (including, without limitation, pursuant to the exercise of a right of first refusal, right of first offer or similar right to purchase the applicable Release Property by a third-party Person which is not Controlled by Sponsor and/or, so long as a Blackstone Fund Entity Controls, or is, Sponsor, by such Blackstone Fund Entity that Controls, or is, Sponsor), Borrower shall be permitted to release such Release Property from the Lien of the Mortgage and the related Loan Documents upon the payment to Lender of an amount (the “Low Debt Yield Release Amount”) equal to the lesser of (I) Lender’s Allocation of one hundred percent (100%) of the Net Sales Proceeds derived from the sale of the Release Property and (II) the greater of (x) the applicable Release Amount for the Release Property together with any Spread Maintenance Premium then required (if any) and (y) an amount necessary to, after giving effect to such release, satisfy the Debt Yield requirement set forth in this clause (v) (the lesser of (I) and (II), the “Alternate Release Price”) together with

any Spread Maintenance Premium then required (if any). For the purpose of calculating the Debt Yield for this Section 2.6.1 only, (A) Borrower may elect to deliver a Letter of Credit to Xxxxxx as additional collateral for the Loan to be counted against the Outstanding Loan Amount on a dollar for dollar basis in the calculation of the Debt Yield and (B) if the release is scheduled to occur before the first Debt Yield Determination Date occurring hereunder, the Debt Yield shall be deemed to equal the Closing Date Debt Yield. The Debt Yield Deficiency (if any) shall be calculated on a quarterly basis on each Debt Yield Determination Date and on such other date as may be requested by Borrower. If, as of any such date, the amounts on deposit in (i) the Borrower DY Deficiency Reserve exceed Xxxxxx’s Allocation of the then current Debt Yield Deficiency, or (ii) the Mezzanine Borrower DY Deficiency Reserve exceed Lender’s Allocation (as defined in the Mezzanine Loan) of the then current Debt Yield Deficiency, the amount of such excess shall be distributed to the Borrower and Mezzanine Borrower, respectively. For the avoidance of doubt, (1) amounts on deposit in the Borrower DY Deficiency Reserve shall not be applied by Lender to satisfy any portion of the Debt other than during the continuance of an Event of Default, and (2) amounts on deposit in the Mezzanine Borrower DY Deficiency Reserve shall not be applied by Mezzanine Lender to satisfy any portion of the Mezzanine Loan other than during the continuance of a Mezzanine Loan Default. Upon request from Xxxxxx, Borrower shall deliver to Lender Borrower’s calculation of the applicable Release Amount, the Release Debt Yield, and, if applicable, the Low Debt Yield Release Amount and Net Sales Proceeds;

(vi) Borrower shall have paid or reimbursed Lender for all reasonable out‑of‑pocket costs and expenses actually incurred by Xxxxxx (including, without limitation, reasonable actually incurred attorneys’ fees and disbursements; provided such attorneys’ fees shall not exceed (x) $5,000.00 in the aggregate with respect to the coordinated release (simultaneously or on or about the same date) of between one (1) and four (4) Individual Properties and (y) $10,000.00 in the aggregate with respect to the coordinated release (simultaneously or on or about the same date) of five (5) or more Individual Properties) and Borrower shall have paid all third-party fees, costs and expenses actually incurred in connection with any such release, including but not limited to, (A) the current and customary fee being assessed by such Servicer to effect such release, which fee shall not exceed (x) $2,000.00 in the aggregate with respect to the coordinated release (simultaneously or on or about the same date) of between one (1) and four (4) Individual Properties and (y) $10,000.00 in the aggregate with respect to the coordinated release (simultaneously or on or about the same date) of five (5) or more Individual Properties; and (B) any other charges incurred in connection with the release of any Liens, including the payment of all recording charges, filing fees, taxes or other similar expenses incurred in the reasonable judgment of the Lender or the Servicer in order to effectuate the release;

(vii) If any Mezzanine Loan is then outstanding, concurrently with the payment of the Release Amount (or, if applicable, the Alternate Release Price), the Mezzanine Borrower shall make a partial prepayment of the Mezzanine Loan equal

to the Mezzanine Release Amount (or, if applicable, the Alternate Release Price (as defined in the Mezzanine Loan Agreement)) applicable to such Release Property, together with any related interest, fees, prepayment premiums or other amounts payable as set forth in the applicable section of the Mezzanine Loan Agreement in connection with such prepayment;

(viii) Intentionally omitted;

(ix) Subsequent to such release, each Individual Borrower and each SPE Constituent Entity shall continue to be a Special Purpose Entity pursuant to, and in accordance with, Section 4.1.30 hereof; and

(x) To the extent that Borrower has used disbursements from the Excess Cash Flow Reserve Account pursuant to Section 7.5.2(a) (as opposed to a disbursement from the Excess Cash Flow Reserve Account (x) of amounts in excess of the Excess Cash Flow Deposit Cap, (y) in connection with Borrower delivering an Excess Cash Flow Guaranty or (z) following the termination of a Cash Sweep Period) to fund any Alterations on or to any Undeveloped Land or any Pre-Identified Release Parcel, such Undeveloped Land or Pre-Identified Release Parcel shall be simultaneously released with such related Individual Property adjacent or immediately proximate to such Undeveloped Land or Pre-Identified Release Parcel;

(b) Notwithstanding anything to the contrary contained herein, Borrower shall have the right to cause the release of the Ground Leased Property in order to cure an Event of Default in connection with a default under the Ground Lease that was not caused by (or at the direction of) Borrower or any Affiliate thereof in bad faith to circumvent the requirements of this Section 2.6.1 (a “Ground Lease Default Release”). In connection with a Ground Lease Default Release, Borrower shall be required to satisfy the conditions set forth in this Section 2.6.1, except that (I) Borrower shall not be required to satisfy the condition set forth in Section 2.6.1(a)(ii) to the extent any such Event of Default relates solely to the Ground Leased Property to be released and (II) Borrower shall not be required to satisfy the condition set forth in Section 2.6.1(a)(v) and provided, further, that with respect to any transfer of the Ground Leased Property related to such Ground Lease Default Release to an Affiliate of Borrower, Borrower provides an Additional Insolvency Opinion addressing such transfer to an Affiliate. Any prepayment of the Loan in connection with a Ground Lease Default Release shall be deemed a voluntary prepayment, and shall be subject to satisfaction of the conditions set forth in Section 2.4.1(a) (other than the requirement to provide ten (10) days prior written notice); provided, that no Spread Maintenance Premium or other premium, penalty or charge shall be due in connection with any prepayment made in connection with a Ground Lease Default Release and any such prepayment shall not count toward the Free Prepayment Amount.

(c) Notwithstanding anything to the contrary contained herein, Borrower shall have the right to cause the release of any Individual Property in order to cure a Default, Event of Default, Default (as defined in the Mezzanine Loan Agreement) or Mezzanine Loan Default (each, a “Release Default”) related to an Individual Property provided that

(i) either (x) prior to releasing such Individual Property, Borrower demonstrates to Lender that, to the extent such Release Default is curable, it has in good faith pursued a cure of such Release Default (which efforts shall not require any capital contributions to be made to Borrower or Mezzanine Borrower (if any) or include any obligations of Borrower, Mezzanine Borrower (if any) or Guarantor to use any operating income or Rents from any Property other than the Individual Property that is the subject of the Release Default to effectuate such cure), or (y) such Release Default related to an environmental condition at the Individual Property and (ii) such Release Default was not caused by (or at the direction of) Borrower or an Affiliate thereof in bad faith to circumvent the requirements of this Section 2.6.1 (a “Default Release”). In connection with any Default Release, Borrower shall be required to satisfy the conditions set forth in this Section 2.6.1, except that (I) Borrower shall not be required to satisfy the condition set forth in Section 2.6.1(a)(ii) to the extent any such Release Default relates to the Individual Property that is the subject of the Default Release and (II) Borrower shall not be required to satisfy the condition set forth in Section 2.6.1(a)(v) and provided, further, that with respect to any transfer of the Individual Property related to such Default Release to an Affiliate of Borrower, Borrower provides an Additional Insolvency Opinion addressing such transfer to an Affiliate. Any prepayment of the Loan in connection with a Default Release shall be deemed a voluntary prepayment, and shall be subject to satisfaction of the conditions set forth in Section 2.4.1(a) (other than the requirement to provide ten (10) days prior written notice; provided, that no Spread Maintenance Premium or other premium, penalty or charge shall be due in connection with any prepayment made in connection with a Default Release and any such prepayment shall not count toward the Free Prepayment Amount).

(d) Intentionally Omitted.

(e) Notwithstanding the foregoing provisions of this Section 2.6.1, including clauses (a), (b), (c) and (d) hereof, if the Loan is included in a REMIC Trust, and the Loan-to-Value Ratio of the Loan exceeds or would exceed 125% immediately after giving effect to the release of the Release Property, no such release will be permitted unless the Borrower prepays the principal balance of the Loan by an amount not less than the greater of (A) the Release Amount or (B) the least of one of the following amounts: (i) if the Individual Property is sold, the net proceeds of an arm’s-length sale of the Release Property to an unrelated Person, (ii) the fair market value (as determined in accordance with the definition of “Loan-to-Value Ratio”) of the Release Property at the time of the release, or (iii) an amount such that the Loan-to-Value Ratio of the Loan after giving effect to the release of the Release Property is not greater than the Loan-to-Value Ratio of the Loan immediately prior to such release, unless Xxxxxx receives an opinion of counsel that, if this clause (e) is not followed or is no longer applicable at the time of such release, the Securitization will not fail to maintain its status as a REMIC Trust as a result of the release of the Release Property.

(f) In connection with any release or cancellation under this Section 2.6, in the event that such release would result in the release of all Individual Properties owned by an Individual Borrower (each an “Unencumbered Borrower”), such Unencumbered Borrower shall be automatically released (provided so long as there is only one (1) Borrower hereunder, that the Debt has been paid in full) by Xxxxxx from the obligations of the Loan

Documents, except with respect to those obligations and liabilities which expressly survive the repayment of the Loan pursuant to any Loan Document and shall no longer be a Borrower for the purposes of this Agreement, in each case, without the need for further action or the execution of any documents. In connection with a release or cancellation of each Unencumbered Borrower, Xxxxxx agrees to deliver (i) a UCC-3 financing statement termination or amendment releasing Lender’s security interest in the collateral pledged to Lender relating to each Unencumbered Borrower and (ii) instruments executed by Lender reasonably necessary to evidence the release or cancellation of each Unencumbered Borrower from its obligations under the Loan Documents. Without limiting the foregoing, in the event that (i) an Unencumbered Borrower is the sole counterparty to the Interest Rate Protection Agreement and/or the Assignment of Interest Rate Protection Agreement or (ii) the Cash Management Account are in the name of an Unencumbered Borrower (clauses (i) and (ii), the “Single Borrower Documents”), the release of such Unencumbered Borrower shall additionally be conditioned upon Xxxxxx’s receipt of evidence reasonably acceptable to Lender that a remaining Borrower shall have assumed all of the obligations of such Unencumbered Borrower under the Single Borrower Documents. All reasonable costs and expenses incurred by Lender in connection with such release shall be paid by Borrower.

(g) Intentionally omitted.

(h) Any Release Default or Event of Default continuing hereunder with respect to an Individual Property will be deemed cured and no longer continuing upon the release of such Individual Property in accordance with the terms of this Section 2.6.1.

2.6.2 Releases of Release Parcels/Rights. Lender agrees that, upon the request of Xxxxxxxx, Borrower may obtain the release of (v) unimproved non-income producing land located at an Individual Property whether or not located on the same parcel as the improved portion of such Individual Property (including all undeveloped non-income producing land adjacent to the buildings located at the Properties), (w) land which does not generate material income and such income was not taken into account for purposes of the appraisals obtained in connection with the closing of the Loan (clauses (v) and (w), the “Undeveloped Land”), (x) any air rights, development rights, mineral rights or water rights relating to an Individual Property which are not necessary for the operation of the Individual Property (y) any land in which the value thereof and income generated thereby was not taken into account for purposes of the appraisals obtained in connection with the closing of the Loan and/or (z) the Pre-Identified Release Parcels (each a “Release Parcel/Rights”) so long as (1) such Release Parcel/Rights is not required to remain part of the collateral at the applicable Individual Property pursuant to the terms of any Leases at such Individual Property and (2) such Release Parcel/Rights is not necessary for use as parking (pursuant to Leases or applicable Legal Requirements or any material covenants, agreements, restrictions and encumbrances contained in any instrument of record) or access, ingress/egress and/or storage at such Individual Property (whether or not required pursuant to the terms of any applicable Leases) (unless, solely with respect to this clause (2), such Individual Property related to such Release Parcel/Rights can be reconfigured at de minimis cost, to provide for substitute parking, to the extent required pursuant to Leases or applicable Legal Requirements or any material covenants, agreements, restrictions and encumbrances contained in any instrument of record, access, ingress/egress and/or storage

provided on the unimproved non-income producing land which is proposed to be released on such Individual Property remaining as collateral after giving effect to a release in accordance with the terms and conditions of this Section 2.6.2) and the release of Borrower’s obligations under the Loan Documents with respect to each such Release Parcel/Rights that are released from time to time as herein provided (other than those expressly stated to survive) without any requirements to pay any portion of any Allocated Loan Amount, Release Amount, prepayment fee, Spread Maintenance Premium or otherwise upon the satisfaction of each of the following conditions (but not any other conditions):

(a) Borrower shall deliver notice to Lender of the proposed release of such Release Parcel/Rights, which notice shall include the name of the proposed transferee, and no Event of Default shall be continuing on the date that the Release Parcel/Rights is released from the Lien of the Mortgage thereon;

(b) Borrower shall submit to Lender, not less than ten (10) days prior to the date of such release, a release of Lien (and related Loan Documents) for such Release Parcel/Rights for execution by Xxxxxx. Such release shall be in a form reasonably satisfactory to a prudent lender and appropriate in each jurisdiction in which the Release Parcel/Rights in question is located;

(c) If the Release Parcel/Rights is not already a legally subdivided parcel, then, to the extent applicable, as of or prior to the transfer and release of the Release Parcel/Rights in question, (i) each applicable municipal authority exercising jurisdiction over such Release Parcel/Rights shall have approved a lot-split ordinance or other applicable action under local law dividing the Release Parcel/Rights from the remainder of the affected Individual Property, which shall trigger issuance of a separate tax identification number for the Release Parcel/Rights in question (with the result that, upon the transfer and release of the Release Parcel/Rights in question, no part of the remaining affected Individual Property shall be part of a tax lot or zoning lot which includes any portion of such Release Parcel/Rights) or (ii) an application has been made under local law to the appropriate Governmental Authority for approval of a lot-split ordinance or other application action and for a separate tax identification number for the Release Parcel/Rights and the transferee and transferor Borrower shall have otherwise entered into a property tax allocation agreement which has the same economic effect of a tax lot subdivision, provided, that Lender shall reasonably cooperate with Borrower in obtaining the foregoing;

(d) If the Release Parcel/Rights is not already a legally subdivided parcel, then, to the extent applicable, all Legal Requirements applicable to the Release Parcel/Rights in question necessary to accomplish the lot split shall have been fulfilled (other than those Legal Requirements that are required to be satisfied after the lot split) in all material respects, and all necessary variances, if any, shall have been obtained, and Borrower shall have delivered to Lender either (i) letters or other evidence from the appropriate municipal authorities confirming such compliance with laws or (ii) a zoning report, legal opinion or other evidence confirming such compliance with laws, in each case in substance reasonably satisfactory to Lender (provided that in each case with respect to Legal Requirements that are required to be satisfied after the lot split, Borrower shall deliver an Officer’s Certificate

certifying that Borrower shall comply with such applicable Legal Requirements), provided, that Lender shall reasonably cooperate with Borrower in obtaining the foregoing;

(e) If the Release Parcel/Rights is not already a legally subdivided parcel, as a result of the lot split, then, to the extent applicable, the remaining Individual Property (after the release of the Release Parcel/Rights in question from such Individual Property) with all easements appurtenant and other Permitted Encumbrances thereto will not be in violation of any PILOT Lease, any Ground Lease, and then applicable Legal Requirements or any material covenants, agreements, restrictions and encumbrances contained in any instrument of record and all necessary variances, if any, shall have been obtained and evidence thereof has been delivered to Lender which in form and substance is appropriate for the jurisdiction in which the applicable Release Parcel/Rights is located;

(f) If reasonably necessary, appropriate reciprocal easement agreements for the benefit and burden of the remaining Individual Property and the Release Parcel/Rights in question regarding the use of common facilities of such parcels, including, but not limited to, roadways, parking areas, utilities and community facilities, in a form and substance that would be reasonably acceptable to an ordinary prudent lender and which easements will not materially adversely affect the remaining Individual Property, shall be declared and recorded, and the remaining Individual Property and the applicable Release Parcel/Rights shall be in compliance with all applicable covenants under all easements and property agreements contained in the Permitted Encumbrances for the Individual Property;

(g) Subsequent to such release, each Individual Borrower and each SPE Constituent Entity shall continue to be a Special Purpose Entity pursuant to and in accordance with Section 4.1.30 hereof, provided that Borrower shall not be required to deliver a “bring-down” of the Insolvency Opinion or delivery of an Additional Insolvency Opinion;

(h) Borrower shall have delivered an Officer’s Certificate to the effect that (i), to such officer’s knowledge after diligent inquiry, the conditions in subsections (a)-(g) hereof have occurred or shall occur concurrently with the transfer and release of the applicable Release Parcel/Rights, (ii) the release of the applicable Release Parcel/Rights will not impair or otherwise adversely affect the Liens, security interests and other rights of Lender under the Loan Documents other than the release of the same as to the applicable Release Parcel/Rights (and, to the extent applicable, if the Release Parcel/Rights are not already a legally subdivided parcel and there are Legal Requirements that are required to be satisfied after the lot split, that Borrower shall comply with such applicable Legal Requirements in all material respects) and (iii) Borrower has not used any disbursements from the Excess Cash Flow Reserve Account pursuant to Section 7.5.2(a) (as opposed to a disbursement from the Excess Cash Flow Reserve Account (x) of amounts in excess of the Excess Cash Flow Deposit Cap, (y) in connection with Borrower delivering an Excess Cash Flow Guaranty or (z) following the termination of a Cash Sweep Period) to fund Alterations on such Release Parcel/Rights;

(i) Borrower shall have executed and delivered such other documents and instruments that are reasonably requested by Xxxxxx and typical for similar transactions;

(j) If the Release Parcel/Rights is not already a legally subdivided parcel, then to the extent that any adjacent parcels to the Release Parcel/Rights (to the extent applicable) shall remain collateral for the Loan and the same were not separately described in the Survey delivered in connection with the closing of the Loan, Borrower shall have delivered a new Survey with legal descriptions for such remaining parcels that are collateral for the Loan;

(k) If reasonably requested by Xxxxxx, Borrower shall have delivered to Lender an endorsement or comfort letter with regard to Lender’s Title Insurance Policy (to the extent available in the applicable state) solely with respect to the Individual Property being affected by the release of the Release Parcel/Rights that (i) insures the priority of the Mortgage is not affected, and (ii) to the extent commercially available at commercially reasonable rates in the applicable state, insures the rights and benefits of any new or amended reciprocal easement agreement affecting the Individual Property;

(l) Xxxxxx shall have received reimbursement of all Lender’s reasonable out-of-pocket costs and expenses, reasonable counsel fees, expenses and disbursements actually incurred in connection with the release of the Release Parcel/Rights from the Lien of the related Mortgage and the review and approval of the documents and information required to be delivered in connection therewith. In addition, Borrower shall have paid all third-party fees, costs and expenses incurred in connection with the release of the applicable Release Parcel/Rights, including but not limited to, the current fee being assessed by such Servicer to effect such release, and any other charges incurred in connection with the release of any Liens, including the payment of all recording charges, filing fees, taxes or other similar expenses incurred in the reasonable judgment of the Lender or the Servicer in order to effectuate the release;

(m) Notwithstanding the foregoing provisions of this Section 2.6.2, if the Loan is included in a REMIC Trust, as a condition to any such release of any Release Parcel/Rights, either (x) Borrower shall have established to Lender’s reasonable satisfaction that the Loan-to-Value Ratio would not exceed 125% immediately after giving effect to the release of the Release Parcel/Rights, or (y) Borrower prepays the principal balance of the Loan by an amount not less than the greater of (A) the Release Amount for such Release Parcel/Rights, if any, or (B) the least of the following amounts: (i) if the Release Parcel/Rights are sold, the net proceeds of an arm’s-length sale of the Release Parcel/Rights to an unrelated Person, (ii) the fair market value of the Release Parcel/Rights at the time of the release (as determined in accordance with the definition of “Loan-to-Value Ratio”), or (iii) an amount such that the Loan-to-Value Ratio after giving effect to the release is not greater than the Loan-to-Value Ratio immediately prior to the release, unless the Lender receives an opinion of counsel that, if this clause (B) is not satisfied, the Securitization will not fail to maintain its status as a REMIC Trust as a result of the release of the Release Parcel/Rights; and

(n) Borrower shall simultaneously with the release of the Release Parcel/Rights transfer title to (or ownership of) the Release Parcel/Rights to a Person other than Borrower.

Notwithstanding anything to the contrary in this Section 2.6.2 and for the avoidance of doubt, the provisions of this Section 2.6.2 shall not apply to the release of any Release Parcel/Rights that are being released in connection with the release of an Individual Property to which such Release Parcel/Rights is associated; provided, that for purposes of Section 2.6.1(e), the defined term Release Property shall be deemed to include such Release Parcel/Rights, in addition to the related Individual Property.

2.6.3 Release on Payment in Full. Upon payment in full of the Debt in accordance with the terms and provisions of the Note and this Agreement and the other Loan Documents, Lender shall, upon the written request and at the sole cost and expense (including Xxxxxx’s reasonable actually incurred attorneys’ fees and disbursements) of Borrower, release the Lien of the Mortgage and the other Loan Documents (except those that expressly survive such release) on each Individual Property, in each case not theretofore released.

2.6.4 Release of Reserve Funds. In connection with a release of a Release Property pursuant to this Agreement, Lender will return to Borrower (or, at Borrower’s election, credit against the amount of any prepayment required to be made by Borrower in connection with such release) a portion of the Reserve Funds (or permit Borrower to deposit reduced replacement Letters of Credit in lieu of any Letters of Credit delivered to Lender in lieu of such Reserve Funds in accordance with Section 7.10) equal to the amount (or reduced by the amount for a Letter of Credit), as determined by Lender in its reasonable discretion, that is allocable to such Release Property, but only to the extent the remaining amount in the applicable Reserve Accounts or the amount of such Letters of Credit with respect to all Individual Properties remaining subject to the Loan Documents are at least equal to the estimated amounts that Lender determines in its reasonable discretion is necessary to satisfy the current obligations for which such Reserve Accounts were established or Letters of Credit were deposited. Following the release of a Release Property in accordance with this Agreement, Lender shall adjust the other amounts thereafter required to be deposited by Borrower into the Reserve Accounts to reflect amounts required solely for the remaining Individual Properties after giving effect to such release.

2.6.5 Assignments of Mortgages. Upon the request of Borrower in connection with the release of any Release Property or in connection with a release pursuant to the provisions of this Agreement, Xxxxxx agrees to cooperate, at Borrower’s sole cost and expense (including Xxxxxx’s reasonable actual out-of-pocket attorneys’ fees and disbursements), to provide an assignment of the Mortgage and/or assignment or partial assignment of the Note with respect to such Release Property without representation or warranty (other than that it is the holder of such Mortgage and/or Note and such Mortgage and/or Note is not presently assigned, pledged or otherwise encumbered) and without recourse in lieu of the release.

Section 2.7 Lockbox Account/Cash Management

2.7.1 Lockbox Account . (a) Borrower has established and, during the term of the Loan, shall maintain one or more segregated Eligible Accounts (collectively, the “Lockbox Account”) with Lockbox Bank titled as set forth in the applicable Lockbox Agreement and,

which Lockbox Account is in trust for the Lender and shall be under the sole dominion and control of Lender to the extent set forth in the Lockbox Agreement. Borrower hereby grants to Lender a security interest in the Lockbox Account and all deposits at any time contained therein and the proceeds thereof and will take all actions necessary to maintain in favor of Lender a perfected security interest in the Lockbox Account, including, without limitation, filing UCC‑1 financing statements and continuations thereof. Such financing statements may describe as the collateral covered thereby “all assets of the debtor, whether now owned or hereafter acquired” or words to that effect. Lender and Servicer shall have the sole right to make withdrawals from the Lockbox Account in accordance with and subject to the Lockbox Agreement. All costs and expenses of establishing and maintaining the Lockbox Account shall be paid by Xxxxxxxx. All monies now or hereafter deposited into the Lockbox Account shall be deemed additional security for the Debt.

(b) Borrower shall, and shall cause Manager on behalf of Xxxxxxxx, respectively, to, deposit all amounts received by Borrower or Manager constituting Rents (other than security deposits unless and until the same are forfeited by the applicable Tenant) from the Properties into the Lockbox Account within five (5) Business Days after receipt thereof. For the avoidance of doubt, (x) Borrower shall not be required to cause or direct Tenants to deposit Rents directly into the Lockbox Account and (y) (A) capital contributions of the owners of Borrower and (B) payment of Required REIT Distributions during an Event of Default from equity or sources other than Excess Cash Flow and/or the Properties shall not constitute Rents.

(c) Borrower has obtained from Lockbox Bank its agreement to transfer to the Cash Management Account upon notice from Lender to Lockbox Bank of a Cash Sweep Period (the “Cash Sweep Period Instructions”), all amounts on deposit in the Lockbox Account (other than a reasonable peg balance and the reasonable fees of the Lockbox Bank as more particularly described in the Lockbox Agreement) in accordance with the Cash Sweep Period Instructions, which Cash Sweep Period Instructions may require up to two (2) transfers per week to the Cash Management Account. Upon a Cash Sweep Cure Date, Lender shall, within three (3) Business Days, provide notice to the Lockbox Bank that the Cash Sweep Period Instructions are no longer in effect and that all amounts on deposit in the Lockbox Account shall be transferred by the Lockbox Bank to an account designated by Borrower (together with any other account of Borrower (other than the Lockbox Account) each, a “Non-Pledged Account”). In the event a Cash Sweep Period is not in effect, all amounts on deposit in the Lockbox Account shall be transferred by the applicable Lockbox Bank to one or more Non-Pledged Accounts. Notwithstanding anything to the contrary contained herein, any amounts contained in the Non-Pledged Accounts shall not be collateral for the Loan or subject to any restrictions or limitations set forth in the Loan Documents.

(d) During the continuance of an Event of Default, Lender may, in addition to any and all other rights and remedies available to Lender, apply any sums then present in the Lockbox Account to the payment of the Debt in such order and priority as Lender shall determine in its sole discretion; provided, however, unless a Priority Payment Cessation Event has occurred and is continuing, the Lender shall continue to make Priority Waterfall Payments to the extent of funds available therefore in the Lockbox Account.

(e) Borrower shall not further pledge, assign or grant any security interest in the Lockbox Account or the monies deposited therein or permit any Lien to attach thereto, or any levy to be made thereon, or any UCC-1 financing statement, except those naming Lender as the secured party, to be filed with respect thereto.

(f) Borrower shall indemnify Lender and hold Lender harmless from and against any and all Losses arising from or in any way connected with the Lockbox Account and/or the Lockbox Agreement (unless arising from the gross negligence or willful misconduct of Lender) or the performance of the obligations for which the Lockbox Account was established.

(g) Notwithstanding anything to the contrary in this Agreement or the other Loan Documents and so long as a Cash Sweep Period does not then exist, Borrower shall be permitted, without the consent of Lender, but with not less than ten (10) Business Days’ prior notice to, Lender, to close any individual Lockbox Account (provided that such notice period may be shortened or such notice period may be provided concurrently in the event the Lockbox Bank ceases to be an Eligible Institution (or Borrower reasonably believes such cessation is reasonably likely to occur)) (collectively, a “Lockbox Consolidation”). Lender shall, at the request of Borrower, direct the Lockbox Bank to terminate the Lockbox Agreement in connection with a Lockbox Consolidation with respect to the applicable Lockbox Account to the extent required by Lockbox Bank, and otherwise reasonably cooperate with Borrower (at Borrower’s sole cost and expense) in order to effectuate any Lockbox Consolidation.

(h) Notwithstanding anything to the contrary contained herein, Borrower shall have the right, without the consent of Lender, to establish and maintain during the term of the Loan one or more additional Lockbox Accounts with one or more Lockbox Banks (each such new Lockbox Account, a “New Lockbox Account”) provided that each such New Lockbox Accounts satisfy the requirements of this Section 2.7.1. Upon the establishment of a New Lockbox Account, such New Lockbox Account shall be considered a Lockbox Account pursuant to the terms of this Agreement.

2.7.2 Cash Management Account. (a) Upon the occurrence and during the continuance of a Cash Sweep Period, Representative Borrower shall establish and maintain a segregated Eligible Account (the “Cash Management Account”) to be held by Agent in trust and for the benefit of Lender, which Cash Management Account shall be under the sole dominion and control of Lender. The Cash Management Account shall be titled MCZ/Centrum Flamingo III, L.L.C. as Borrower fbo Xxxxx Fargo Bank, National Association et al as Lender. Representative Borrower hereby grants to Lender a security interest in the Cash Management Account and all deposits at any time contained therein and the proceeds thereof and will take all actions necessary to maintain in favor of Lender a perfected security interest in the Cash Management Account, including, without limitation, filing UCC-1 financing statements and continuations thereof upon Xxxxxx’s request therefor. Such financing statements may describe as the collateral covered thereby “all assets of the debtor, whether now owned or hereafter acquired” or words to that effect. Borrower will not in any way alter or modify the Cash Management Account without the prior written consent of Xxxxxx, and Xxxxxxxx will notify Lender of the account number of

the Cash Management Account. Lender and Servicer shall have the sole right to make withdrawals from the Cash Management Account and all costs and expenses for establishing and maintaining the Cash Management Account shall be paid by Borrower.

(b) Funds on deposit in the Lockbox Account shall not be commingled with other monies held by Borrower, Manager or Lockbox Bank.

(c) During the continuance of an Event of Default, all funds on deposit in the Cash Management Account shall be applied by Lender to the payment of the Debt and/or for any other purpose for which such funds may be applied by Lender pursuant to the provisions of any Loan Document, in such order and priority as Lender shall determine, in its sole discretion, provided, however, the Lender shall continue to make Priority Waterfall Payments to the extent of funds available therefore in the Cash Management Account so long as no Priority Payment Cessation Event has occurred and is continuing.

(d) The insufficiency of funds on deposit in the Cash Management Account shall not relieve Borrower from the obligation to make any payments, as and when due pursuant to this Agreement and the other Loan Documents, and such obligations shall be separate and independent, and not conditioned on any event or circumstance whatsoever.

(e) Borrower hereby agrees to cooperate with Xxxxxx in connection with any amendment to the Cash Management Agreement that Lender deems necessary for the purpose of establishing additional sub-accounts in connection with any payments otherwise required under this Agreement and the other Loan Documents.

(f) Notwithstanding anything contained herein or in the other Loan Documents to the contrary, Xxxxxx agrees that, notwithstanding the existence of an Event of Default, prior to a Priority Payment Cessation Event, Lender shall apply amounts on deposit in the Cash Management Account to payment of the Priority Waterfall Payments. Any amounts remaining in the Cash Management Account after payment of the Priority Waterfall Payments shall be deposited in the Excess Cash Flow Reserve Account and applied in accordance with Section 7.5 hereof.

2.7.3 Payments Received under the Cash Management Agreement. Notwithstanding anything to the contrary contained in this Agreement or the other Loan Documents, and provided no Event of Default has occurred and is continuing, Borrower’s obligations with respect to the payment of the Monthly Debt Service Payment Amount and amounts required to be deposited into the Reserve Accounts, if any, shall be deemed satisfied to the extent sufficient amounts are deposited in the Cash Management Account to satisfy such obligations pursuant to this Agreement and the Cash Management Agreement on the dates that each such payment is required, regardless of whether any of such amounts are so applied by Lender.

2.7.4 Distributions to Mezzanine Borrower. For so long as a Mezzanine Loan is outstanding, all transfers of funds on deposit in the Cash Management Account to or for the benefit of the Mezzanine Lender, pursuant to this Agreement, the Cash Management Agreement or any of the other Loan Documents or Mezzanine Loan Documents are

intended by Xxxxxxxx, the Mezzanine Borrower and the Mezzanine Lender to constitute, and shall constitute, distributions from Borrower to the Mezzanine Borrower and from one Mezzanine Borrower to another Mezzanine Borrower, as applicable. No provision of the Loan Documents or the Mezzanine Loan Documents shall create a debtor-creditor relationship between Borrower and any Mezzanine Lender.

Section 2.8 Extension of the Initial Maturity Date. Borrower shall have the option to extend the Initial Maturity Date of the Loan for three (3) successive terms (each such option, an “Extension Option” and each such successive term, an “Extension Term”) of one (1) year each (the Initial Maturity Date following the exercise of each such option is hereinafter the “Extended Maturity Date”) upon satisfaction of the following terms and conditions:

(a) no Event of Default with respect to (x) Borrower’s failure to pay Debt Service that is then due and payable, (y) Guarantor’s failure to make any payments under the Guaranty and/or any Ancillary Guaranty that is then due and payable and/or (z) any Bankruptcy Action of Borrower and/or any SPE Constituent Entity, in each instance, shall have occurred and be continuing at the commencement of the applicable Extension Term;

(b) Borrower shall provide Lender with written revocable notice of its election to extend the Maturity Date as aforesaid not later than ten (10) Business Days and not earlier than one hundred twenty (120) days prior to the then applicable Maturity Date (provided that if Borrower shall subsequently revoke such notice, Borrower shall be responsible for Lender’s reasonable, out-of-pocket costs and expenses incurred in connection with processing and documenting the applicable Extension Option);

(c) if required pursuant to the terms of Section 2.2.7 hereof, Borrower shall obtain and deliver to Lender on or prior to the first day of each Extension Term, one or more Interest Rate Protection Agreements, which shall be an Interest Rate Protection Agreement from an Acceptable Counterparty in a notional amount at least equal to the then Outstanding Loan Amount as of the commencement of such Extension Term, which Interest Rate Protection Agreement shall have a strike price based on the Applicable Index Rate equal to the Required Strike Price (or, if the Alternate Strike Price Condition has been satisfied, the Alternate Strike Price) and be effective commencing not later than the first date of such Extension Term (or, the later of (a) if the maturity date of the then-current Interest Rate Protection Agreement is a later date, such later date and (b) to the extent a Securitization has occurred, the first day of the first Interest Period commencing during such Extension Term) and shall have a maturity date not earlier than the applicable Extended Maturity Date (or, to the extent a Securitization has occurred, the Interest Period applicable to the related Extended Maturity Date) after giving effect to the option then being exercised; and

(d) if a Mezzanine Loan is then outstanding, the Mezzanine Loan shall have been repaid or extended (or will be contemporaneously extended) through a date not earlier than the applicable Extended Maturity Date.

Xxxxxxxx acknowledges and agrees that in the event Xxxxxxxx delivers a notice exercising an Extension Option (which notice shall be revocable by Borrower), Borrower shall

reimburse Lender and Servicer, if any, for reasonable third party costs and expenses actually incurred in connection with processing and documenting the Extension Option, including, without limitation, reasonable attorneys’ fees and expenses actually incurred (provided (i) such reimbursement shall not be a condition precedent to the effectiveness of the exercise of the applicable Extension Option and may be made by Borrower following the exercise of such Extension Option and (ii) such attorneys’ fees and expenses shall not exceed $2,500) and the current fee being assessed by Servicer in an amount not to exceed $5,000, regardless of whether the Extension Option is successfully exercised or not. Notwithstanding anything to the contrary herein, Borrower shall not be required to execute any extension letters, extension agreements or other similar documentation in order to exercise an Extension Option or as a condition to the effectiveness of the extension of the Maturity Date.

Section 2.9 Withholding Taxes

(a) Any and all payments by or on account of any obligation of any Loan Party in respect of this Agreement or any other Loan Document to which any Loan Party is a party shall be made free and clear of, and without deduction or withholding for or on account of, any and all present or future taxes, levies, imposts, deductions, charges or withholdings, and any penalties, interest and additions to tax with respect thereto, whether now or hereafter imposed, levied, collected, withheld or assessed by any taxation authority or other Governmental Authority (collectively, “Section 2.9 Taxes”), unless required under any applicable law. If any Loan Party shall be required under any applicable law to deduct or withhold any Section 2.9 Taxes from or in respect of any sum payable under or in respect of this Agreement or any of the other Loan Documents to a Lender, (i) such Loan Party shall make all such deductions and withholdings in respect of Section 2.9 Taxes, (ii) such Loan Party shall pay the full amount deducted or withheld in respect of Section 2.9 Taxes to the relevant taxation authority or other Governmental Authority in accordance with the applicable law, and (iii) if such Section 2.9 Taxes are Non-Excluded Taxes, the sum payable by such Loan Party shall be increased as may be necessary so that after such Loan Party has made all required deductions and withholdings (including deductions and withholdings applicable to additional sums payable under this Section 2.9) Lender, as the case may be, receives an amount equal to the sum it would have received had no such deductions or withholdings been made in respect of Non-Excluded Taxes.

(b) In addition, Borrower hereby agrees to timely pay any present or future stamp, recording, documentary, excise, intangible, property or similar taxes, charges or levies that arise from any payment made under this Agreement or any other Loan Document or from the execution, delivery or registration of, any performance under, or otherwise with respect to, this Agreement, the Notes or any other Loan Document, other than Excluded Taxes or taxes or charges imposed with respect to an assignment by a Lender or resulting from a Lender’s funding of any Loan with plan assets subject to ERISA, Section 4975 of the Code or any Applicable Similar Law (collectively, “Other Taxes”) to the relevant taxing authority or other Governmental Authority in accordance with applicable law.

(c) Each Loan Party hereby agrees to indemnify each Lender for, and to hold it harmless against, the full amount of Non-Excluded Taxes paid or payable by such Lender

in connection with this Agreement or any other Loan Document and any reasonable expenses arising therefrom or with respect thereto, without duplication of any amounts paid by any Loan Party under Section 2.9(a). The indemnity by any Loan Party provided for in this Section 2.9(c) shall apply and be made whether or not the Non-Excluded Taxes for which indemnification hereunder is sought have been correctly or legally asserted. Amounts payable by any Loan Party under the indemnity set forth in this Section 2.9(c) shall be paid within ten (10) days from the date on which the applicable Lender makes written demand therefor. Such written demand shall be conclusive of the amount so paid or payable absent manifest error.

(d) As soon as practical after the date of any payment of Non-Excluded Taxes to a taxing authority or other Governmental Authority, any Loan Party (or any Person making such payment on behalf of any Loan Party) shall furnish to the applicable Lender, the original or a certified copy of the original official receipt issued by such taxing authority or other Governmental Authority evidencing payment thereof, or other evidence of such payment reasonably satisfactory to such Lender.

(e) If Lender is entitled to an exemption from, or reduction of, any applicable withholding tax with respect to any payments under any Loan Document, Lender shall deliver to the relevant Loan Party, at the time or times prescribed by applicable law or reasonably requested by the applicable Loan Party, such properly completed and executed documentation prescribed by applicable law and reasonably requested by any Loan Party as will permit such payments to be made without, or at a reduced rate of, withholding. In addition, Lender, if reasonably requested by any Loan Party, shall deliver such other documentation prescribed by law or reasonably requested by any Loan Party as will enable any Loan Party to determine whether or not such Lender is subject to any withholding (including backup withholding) or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Sections 2.9(e)(i) through (iii)) shall not be required if in Xxxxxx’s judgment such completion, execution or submission would subject Lender to any material unreimbursed cost or expense (or, in the case of a change in a law, any incremental material unreimbursed cost or expense) or would materially prejudice the legal or commercial position of Lender. Upon the reasonable request of any Loan Party, such Lender shall update any form or certification previously delivered pursuant to this Section 2.9(e). If any form or certification previously delivered pursuant to this Section expires or becomes obsolete or inaccurate in any respect, Lender shall promptly (and in any event within ten (10) days after such expiration, obsolescence or inaccuracy) notify the applicable Loan Party in writing of such expiration, obsolescence or inaccuracy and update the form or certification if it is legally eligible to do so. Without limiting the generality of the foregoing:

(i) Xxxxxx (including for avoidance of doubt any participant, assignee or successor) that is not a “United States person” within the meaning of Section 7701(a)(30) of the Code (“Non-U.S. Lender”) shall, if it is legally eligible to do so, deliver or cause to be delivered to the relevant Loan Party the following properly completed and duly executed documents:

(A) in the case of a Non-U.S. Lender claiming the benefits of an income tax treaty to which the United States is a party, (x) with respect to payments of interest under any Loan Document, a complete and executed U.S. Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable (or any successor forms thereto), establishing an exemption from, or reduction of, U.S. federal withholding tax pursuant to the “interest” article of an applicable tax treaty, including all appropriate attachments or (y) with respect to any other applicable payments under any Loan Document, a complete and executed U.S. Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable (or any successor forms thereto), establishing an exemption from, or reduction of, U.S. federal withholding tax pursuant to the “business profits” or “other income” article of such tax treaty; or

(B) a complete and executed U.S. Internal Revenue Service Form W-8ECI (or any successor form thereto); or

(C) in the case of a Non-U.S. Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code both, (x) a complete and executed U.S. Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable (or any successor form thereto) and (y) a certificate substantially in the form of Schedule 2.9 (a “Section 2.9 Certificate”) to the effect that Non-U.S. Lender is not (a) a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (b) a “10 percent shareholder” of any Loan Party within the meaning of Section 881(c)(3)(B) of the Code (c) a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code or (d) conducting a trade or business in the United States with which the relevant interest payments are effectively connected; or

(D) in the case of a Non-U.S. Lender that is not the beneficial owner of payments made under any Loan Document (including a partnership, an entity disregarded for U.S. federal income tax purposes, or a participating Lender), (x) a complete and executed U.S. Internal Revenue Service Form W-8IMY (or any successor form thereto) (including all required documents and attachments) on behalf of itself and (y) with respect to each of its beneficial owners and the beneficial owners of such beneficial owners looking through chains of owners to individuals or entities that are not flow-through entities (such as corporations) for U.S. federal income tax purposes (all such owners, a “beneficial owner”), the documents that would be required by these clauses (A), (B), (C), and (D) or Section 2.9(e)(ii) with respect to each such beneficial owner if such beneficial owner were a Lender, provided, however, that no such documents will be required with respect to a beneficial owner to the extent the actual Lender is determined to be in compliance with the requirements for certification on behalf of its beneficial owner as may be provided in applicable U.S. Treasury regulations, or the requirements of this clause (D) are otherwise determined to be unnecessary, all such determinations under this clause (D) to be made

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in the sole discretion of Loan Party; provided further, that if the Non-U.S. Lender is a partnership and one or more of its partners are claiming the exemption for portfolio interest under Section 881(c) of the Code, such Lender may provide a Section 2.9 Certificate on behalf of such partners; or

(E) any other form prescribed by law as a basis for claiming exemption from, or a reduction of, U.S. federal withholding tax together with such supplementary documentation necessary to enable any Loan Party to determine the amount of tax (if any) required by law to be withheld.

(ii) If Lender (including for avoidance of doubt any participant, assignee or successor) is a “United States person” within the meaning of Section 7701(a)(30) of the Code shall, and if it is legally eligible to do so, such Lender shall deliver or cause to be delivered to any applicable Loan Party a properly completed and duly executed U.S. Internal Revenue Service Form W-9 (or any successor forms thereto) certifying that such Lender is exempt from U.S. federal backup withholding tax.

(iii) If a payment made to Lender under any Loan Document would be subject to U.S. federal withholding tax imposed by FATCA if Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), Lender shall deliver to any applicable Loan Party, at the time or times prescribed by law and at such time or times reasonably requested by Loan Party, such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by Loan Party as may be necessary for Loan Party to comply with its obligations under FATCA, to determine that such Lender has or has not complied with such Xxxxxx’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this Section 2.9(e)(iii), “FATCA” shall include any amendments made to FATCA after the Closing Date.

(f) Each Lender hereby agrees that, upon the occurrence of any circumstances entitling Lender to additional amounts pursuant to this Section 2.9, Lender, at the request of Loan Party, shall use reasonable efforts (consistent with its internal policy and legal and regulatory restrictions), to designate a different applicable lending office for the funding or booking of its Loan hereunder, if, in the reasonable judgment of such Lenders, such designation (i) would eliminate or reduce amounts payable pursuant to Section 2.9 in the future, and (ii) would not subject such Lender to any material unreimbursed cost or expense and would not otherwise be materially disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation.

(g) If Lender is entitled to additional compensation (x) under any of the foregoing provisions of this Section 2.9 and shall have failed to designate a different applicable lending office as provided in subsection (f) of this Section 2.9, or (y) pursuant to the terms of Section 2.2.5(f) or (g), then, so long as no Event of Default shall have occurred and be continuing, the applicable Loan Party may cause such Lender to (and, if

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the Loan Party so demands, such Lender shall) assign all of its rights and obligations under this Agreement to one or more other Persons identified by the Loan Party and reasonably acceptable to such Lender provided that (i) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans, accrued interest thereon, accrued fees and all other amounts payable to such Lender hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other amounts) and (ii) in the case of any such assignment resulting from a claim for additional compensation pursuant to clauses (x) and/or (y) above, such assignment will result in a reduction in such compensation or payments; provided further, that if, upon such demand by the applicable Loan Party, Lender elects to waive its request for additional compensation pursuant to this Section 2.9 or pursuant to Sections 2.2.5(f) or (g), as applicable, the demand by the Loan Party for Lender to so assign all of its rights and obligations under this Agreement shall thereupon be deemed withdrawn. Nothing in subsection (f) of this Section 2.9 or this Section 2.9(g) shall affect or postpone any of the rights of Lender or any of the obligations of any Loan Party under any of the foregoing provisions of this Section 2.9 in any manner. A Lender shall not be required to make any such assignment and delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling Borrower to require such assignment and delegation cease to apply.

(h) If Lender determines that it has received a refund of any Non-Excluded Taxes as to which it has been indemnified by a Loan Party or with respect to which a Loan Party has paid additional amounts pursuant to this Section 2.9, it shall pay over such refund to such Loan Party (but only to the extent of indemnity payments made, or additional amounts paid, by such Loan Party under this Section 2.9 with respect to the Non-Excluded Taxes giving rise to such refund), net of all out-of-pocket expenses of Lender and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided, that such Loan Party, upon the request of Xxxxxx, agrees to repay the amount paid over to such Loan Party to Lender in the event Lender is required to repay such refund to such Governmental Authority. This paragraph shall not be construed to require Lender to make available its tax returns (or any other information relating to its taxes which it deems confidential) to any Loan Party or any other Person.

Section 2.10 New Mezzanine Loan. Notwithstanding anything to the contrary set forth in this Agreement or the other Loan Documents, Borrower shall have a one-time right without the consent of Lender to cause New Mezzanine Borrower to incur Indebtedness in the form of one or more mezzanine loans after the earlier of (i) one hundred twenty (120) days from the Closing Date and (ii) the Securitization of the whole Loan (other than any vertical risk retention) (the “New Mezzanine Loan”), subject to the satisfaction of all of the following conditions precedent:

(a) no Event of Default shall then be continuing;

(b) the principal amount of the New Mezzanine Loan (including any undisbursed funds) shall in no event exceed the amount which, after giving effect thereto, shall yield (x) an Aggregate LTV Ratio not greater than 76.7% and (y) a Debt Yield not less than the Closing Date Debt Yield;

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(c) the collateral for the New Mezzanine Loan shall include only pledges of the direct or indirect equity interests in Borrower (which shall not include the Cash Management Account and shall not include any portion of the Property);

(d) the lender of the New Mezzanine Loan shall be a Person who satisfies the Eligibility Requirements or such other Person approved by Lender (such approval not to be unreasonably withheld, conditioned or delayed);

(e) the lender of the New Mezzanine Loan shall enter into an intercreditor agreement reasonably acceptable to such New Mezzanine Lender and Lender;

(f) Lender shall have received copies of such New Mezzanine Loan Documents, together with such other certificates and legal opinions (including but not limited to an Additional Insolvency Opinion) as Lender shall reasonably request;

(g) all organizational documents of Borrower and all Loan Documents shall be revised and/or amended to the reasonable satisfaction of Lender to reflect such changes as are necessary for the New Mezzanine Loan, including, without limitation, that a New Mezzanine Loan Default shall be a Cash Sweep Event hereunder and all organizational documents of New Mezzanine Borrower shall be subject to the reasonable approval of Lender;

(h) if the New Mezzanine Loan bears a floating rate of interest, the New Mezzanine Borrower shall acquire and maintain an interest rate cap agreement from an institutional lender in a notional amount that is not less than the outstanding principal balance of the New Mezzanine Loan, the strike price of which shall be used hereunder for purposes of calculating the Debt Service Coverage Ratio;

(i) Borrower shall pay all of Lender’s reasonable out-of-pocket costs and expenses in connection with such New Mezzanine Loan;

(j) at the option of Borrower and/or any Mezzanine Borrower, any voluntary prepayments may be applied by any Mezzanine Borrower to a Mezzanine Loan until such Mezzanine Loan is paid in full in accordance with the applicable Mezzanine Loan Documents without any obligation of Borrower to make a corresponding prepayment of the Loan; provided that the foregoing shall not apply to (x) prepayments made to achieve a Debt Yield Trigger Event Cure, (y) prepayments made in connection with a release of a Property in accordance with this Agreement or (z) prepayments made from Excess Cash Flow Reserve Funds, in each case, which shall be made concurrently with a pro rata prepayment of the Loan under this Agreement (applied in accordance with Section 2.4.4 hereof) and any Mezzanine Loan under the applicable Mezzanine Loan Agreement;

(k) provided no Event of Default is continuing, nothing herein or in any Lender Document shall prohibit New Mezzanine Borrower from prepaying at a discount all or any portion of the New Mezzanine Loan (including any participations thereof) (each a “Discounted Payoff”) pursuant to negotiated transactions with only the Mezzanine Lender (or any participants thereof) accepting such Discounted Payoff consenting to such Discounted Payoff;

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(l) notwithstanding anything to the contrary contained in the Loan Documents, provided that the conditions contained in this Section 2.10 are met, Borrower shall be permitted, including in connection with an Approved Drop Down, to (and no consent of Lender shall be required) cause or permit an affiliate of Borrower to become (whether through assignment, contribution or other method) the direct or indirect owner of Borrower to serve as New Mezzanine Borrower; and

(m) the New Mezzanine Loan shall be co-terminus with the Loan.

Notwithstanding anything to the contrary and for the avoidance of doubt: (x) no Rating Agency Confirmation shall be required in connection with the incurrence of the New Mezzanine Loan, and (y) except as set forth in this Section 2.10, representations, covenants or restrictions in this Agreement and the other Loan Documents relating to the “Mezzanine Loan”; “New Mezzanine Loan”; “Mezzanine Borrower” “New Mezzanine Borrower”; and related Mezzanine Loan Agreement derived definitions shall be deemed to reference the application of that provision solely to the extent a Mezzanine Loan outstanding.

ARTICLE III

INTENTIONALLY OMITTED

ARTICLE IV

REPRESENTATIONS AND WARRANTIES

Section 4.1 Borrower Representations. Borrower represents and warrants as of the Closing Date, except with respect to any representations or warranty that is made as of a specific date, in which case it shall be as of such date, that:

4.1.1 Organization. Each Borrower and each SPE Constituent Entity has been duly organized and is validly existing and is in good standing with requisite power and authority to own or lease the applicable Individual Property and/or to transact the businesses in which it is now engaged. Each Borrower 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, businesses and operations. Each Borrower and each SPE Constituent Entity possesses all material rights, licenses, permits and authorizations, governmental or otherwise, necessary to entitle it to own or lease the applicable Individual Property and/or to transact the businesses in which it is now engaged, except to the extent the failure to possess such rights, licenses and permits would not reasonably be expected to materially and adversely affect Borrower or any Individual Property. Except as otherwise set forth in subsection (i) of the definition of “Special Purpose Entity”, the sole business of each Individual Borrower is the ownership, management, leasing and operation of the related Property. The ownership interests in Borrower are as set forth on the organizational chart attached hereto as Schedule 4.1.1.

4.1.2 Proceedings. Xxxxxxxx has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the other Loan Documents to

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which it is a party. This Agreement and the other Loan Documents to which it is a party have been duly executed and delivered by or on behalf of Borrower and constitute legal, valid and binding obligations of Borrower enforceable against Borrower in accordance with their respective terms, subject only to applicable bankruptcy, insolvency and similar laws affecting rights of creditors generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).

4.1.3 No Conflicts. The execution, delivery and performance of this Agreement and the other Loan Documents by Borrower will not in any material respect 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 or assets of Borrower pursuant to the terms of any indenture, mortgage, deed of trust, deed to secure debt, loan agreement, partnership agreement, management agreement or other material agreement or instrument to which Borrower is a party or, to Borrower’s knowledge, to which any of Borrower’s property or assets are subject (unless consents from all applicable parties thereto have been obtained), nor will such action result in any material violation of the provisions of any statute or any order, rule or regulation of any Governmental Authority having jurisdiction over Borrower or any of Borrower’s properties or assets, and any consent, approval, authorization, order, registration or qualification of or with any such Governmental Authority required for the execution, delivery and performance by Borrower of this Agreement or any other Loan Documents has been obtained and is in full force and effect.

4.1.4 Litigation. Except as set forth on Schedule 4.1.4, there are no actions, suits or proceedings at law or in equity by or before any Governmental Authority or other agency pending or, to Borrower’s knowledge, threatened against or affecting Borrower, any SPE Constituent Entity or any Individual Property, which actions, suits or proceedings, if determined against Borrower, any SPE Constituent Entity or any Individual Property, which would, in each case, reasonably be expected to have an Individual Material Adverse Effect on any Individual Property or an Aggregate Material Adverse Effect. Except as set forth on Schedule 4.1.4, there are no actions, suits or proceedings at law or in equity by or before any Governmental Authority or other agency that resulted in a final judgment against any Borrower or Guarantor that affects any Individual Property that has not been paid in full, or that otherwise materially impairs Guarantor’s ability to fulfill its obligations under the Guaranty.

4.1.5 Agreements. Borrower has no material financial obligation under any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which Borrower is a party or by which Borrower or the Properties is otherwise bound, other than (a) obligations incurred in the ordinary course of the operation of the Properties as permitted pursuant to clause (xxiii) of the definition of “Special Purpose Entity” set forth in Section 1.1 hereof and (b) Permitted Debt or obligations under the Loan Documents. Other than with respect to the Fremont Ground Lease, any Ground Lease, any PILOT Lease, Management Agreements, Leases, broker commissions and similar agreements relating to Leases, contracts relating to Alterations that are permitted without Lender’s consent pursuant to the terms hereof and the other Loan Documents and any documents

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disclosed in the Title Insurance Policies, and other than as set forth on Schedule 4.1.5, all agreements or other instruments to which Borrower is a party or, to Xxxxxxxx’s knowledge, to which the Individual Properties are subject, would not reasonably be expected to have an Aggregate Material Adverse Effect.

4.1.6 Title. Borrower has (a) good and insurable fee simple title to the real property (or a good and insurable leasehold estate with respect to any Ground Lease Property) comprising part of each Individual Property, and (b) good title to the balance of such Individual Property, and, as of the Closing Date, such title is free and clear of all Liens whatsoever except the Permitted Encumbrances, such other Liens as are permitted pursuant to the Loan Documents and the Liens created by the Loan Documents. The Permitted Encumbrances in the aggregate are not reasonably expected to have an Individual Material Adverse Effect on any Individual Property or an Aggregate Material Adverse Effect. Each Mortgage, when properly recorded in the appropriate records, together with any Uniform Commercial Code financing statements required to be filed in connection therewith, has or will create (a) a valid, perfected first-priority lien on the applicable Individual Property, which is subject only to Permitted Encumbrances and (b) perfected security interests in and to, and perfected collateral assignments of, all personalty (including the Leases) to the extent a security interest may be perfected therein by the recording of the Mortgage or the filing of a financing statement under the Uniform Commercial Code, all in accordance with the terms thereof, in each case, subject only to any applicable Permitted Encumbrances. Except for Permitted Encumbrances or as set forth in Schedule 4.1.6 or in the Title Insurance Policies, to Xxxxxxxx’s knowledge, there are no claims for payment for work, labor or materials affecting the Properties which are or might become a Lien prior to, or of equal priority with, the Liens created by the Loan Documents, and as to which Xxxxxx has not otherwise received affirmative insurance in the applicable Title Insurance Policy (in form and substance satisfactory to Lender in all respects) or for which the Title Company has received adequate protections to remove such items as exceptions in the Title Insurance Policy and such item was so removed.

4.1.7 Solvency. Xxxxxxxx has (a) not entered into the transaction contemplated by this Agreement nor executed any Loan Document with the actual intent to hinder, delay or defraud any creditor, and (b) received reasonably equivalent value in exchange for its obligations under the Loan Documents. After giving effect to the Loan (i) the fair saleable value of Borrower’s assets exceeds Borrower’s total liabilities, including, without limitation, subordinated, unliquidated, disputed and contingent liabilities, (ii) the fair saleable value of Borrower’s assets is greater than Borrower’s probable liabilities, including the maximum amount of its contingent liabilities on its debts as such debts become absolute and matured, and (iii) Borrower’s assets do 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 debt and liabilities (including contingent liabilities and other commitments) beyond its ability to pay such debt and liabilities as they mature (taking into account the timing and amounts of cash to be received by Borrower and the amounts to be payable on or in respect of obligations of Borrower). No petition in bankruptcy has been filed against Borrower, any SPE Constituent Entity or Guarantor in the last seven (7) years, and none of Borrower, any SPE Constituent Entity or Guarantor has, in the last seven (7) years, made an assignment for the benefit of

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creditors or taken advantage of any insolvency act for the benefit of debtors. None of Borrower, any SPE Constituent Entity or Guarantor is contemplating either the filing of a petition by it under any state or federal bankruptcy or insolvency laws or the liquidation of all or a major portion of such Person’s assets or property, and to Borrower’s knowledge no Person is contemplating the filing of any such petition against it or against any SPE Constituent Entity or Guarantor.

4.1.8 Intentionally Omitted

4.1.9 No Plan Assets. Except as would not, individually or in the aggregate result in an Aggregate Material Adverse Effect, neither Borrower nor Guarantor sponsors or, is obligated to contribute to, an “employee benefit plan,” as defined in Section 3(3) of ERISA, subject to Title IV of ERISA or Section 412 of the Code. Neither Borrower nor Guarantor is itself an “employee benefit plan” subject to Title I of ERISA or Section 4975 of the Code, and none of the assets of Borrower or Guarantor constitutes “plan assets” of one or more such plans within the meaning of 29 C.F.R. Section 2510.3-101 as modified by Section 3(42) of ERISA, as amended from time to time (“Plan Assets”) and none of the assets of Borrower or Guarantor will constitute Plan Assets if such condition could subject the Lender to any tax or penalty under Section 4975 of the Code or Section 502(i) of ERISA. In addition, (a) neither Borrower nor Guarantor is a “governmental plan” within the meaning of Section 3(32) of ERISA, and (b) based upon and subject to the Lender’s and Purchaser’s representation and covenant in Section 4.3(a) and Section 4.3(b) (as such representation and covenant relate to Applicable Similar Law), transactions by or with Borrower or Guarantor are not, and will not be during the term of the Loan, subject to any state or other statute which is substantially similar to the prohibited transaction provisions of Section 406 of ERISA or Section 4975 of the Code (“Applicable Similar Law”) applicable to Borrower or Guarantor and which prohibit or otherwise restrict the transactions contemplated by this Agreement, including but not limited to the exercise by Lender of any of its rights under the Loan Documents.

4.1.10 Compliance. Except as set forth in the Zoning Reports and property condition reports delivered in connection with the origination of the Loan for each Individual Property delivered to Lender on or before the Closing Date or on Schedule 4.1.22, Borrower and the Properties (including the respective use thereof) comply in all material respects with all applicable Legal Requirements, including, without limitation, building and zoning ordinances and codes and parking requirements and ratios, except where the failure to comply with such Legal Requirements would not have, or reasonably be expected to have, an Individual Material Adverse Effect on any Individual Property. Borrower is not in default or violation of any order, writ, injunction, decree or demand of any Governmental Authority which default or violation would have, or be reasonably expected to have an Individual Material Adverse Effect on any Individual Property or an Aggregate Material Adverse Effect. There has not been committed by Borrower or, to Xxxxxxxx’s knowledge, by any other Person in occupancy of or involved with the operation or use of the Properties any act or omission affording the federal government or any other Governmental Authority the right of forfeiture as against any Individual Property or any part thereof or any monies paid in performance of Borrower’s obligations under any of the Loan Documents.

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4.1.11 Financial Information. All financial data (including, without limitation, the statements of cash flow and income and operating expense) that have been delivered to Lender by or at the direction of Borrower or its Affiliates in connection with the Loan as of the date delivered (a) were true, complete and correct in all material respects (or, to the extent that any such financial data was incorrect in any material respect as of the date delivered, the same have been corrected by financial data subsequently delivered to Lender prior to the Closing Date), (b) accurately represented the financial condition of Borrower and the Properties, as applicable, in all material respects, as of the date of such reports, and (c) to the extent prepared or audited by an independent certified public accounting firm and described therein as having been prepared in accordance with Approved Accounting Principles, were prepared in accordance with Approved Accounting Principles throughout the periods covered, except as disclosed therein. The foregoing representation shall not apply to any such financial data that constitutes projections, provided that Borrower represents and warrants that such projections were made in good faith and that Borrower has no reason to believe that such projections are materially inaccurate. Except as set forth in such financial data and except for Permitted Encumbrances and Permitted Debt, none of Borrower or Guarantor have any contingent liabilities, liabilities for taxes, unusual forward or long-term commitments or unrealized or anticipated losses from any unfavorable commitments that are known to Borrower and reasonably likely to have a materially adverse effect on Borrower or any Individual Property or the current operation thereof for its then existing use (except as referred to or reflected in said financial statements) or, with respect to Guarantor, would materially impair Guarantor’s ability to fulfill its obligations under the Guaranty. Since the date of such financial statements to and including the Closing Date, there has been no material adverse change in the financial condition, operation or business of Borrower from that set forth in said financial statements.

4.1.12 Condemnation. Except as set forth on Schedule 4.1.12, no Condemnation or other similar proceeding has been commenced or, to Xxxxxxxx’s knowledge, threatened in writing or, to Xxxxxxxx’s knowledge, is contemplated by a Governmental Authority with respect to all or any portion of any Individual Property or for the relocation of roadways providing access to any Individual Property other than to the extent that the same would not be reasonably expected to have an Individual Material Adverse Effect on the Individual Property affected thereby.

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

4.1.14 Utilities and Public Access. Except as set forth in the Title Insurance Policies, the Surveys of the Properties or if the same do not, in the aggregate in respect of the Individual Property affected thereby, have an Individual Material Adverse Effect on such Individual Property or an Aggregate Material Adverse Effect, (i) each Individual Property has rights of access to public ways and is served by water, sewer, sanitary sewer and storm drain facilities adequate to service such Individual Property for its respective

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intended uses, (ii) all public utilities necessary or convenient to the full use and enjoyment of each Individual Property are located either in the public right-of-way abutting such Individual Property (which are connected so as to serve such Individual Property without passing over other property) or in recorded easements serving such Individual Property and such easements are set forth in and insured by the applicable Title Insurance Policy and (iii) all roads necessary for the use of each Individual Property for their respective purposes have been completed and dedicated to public use and accepted by all Governmental Authorities.

4.1.15 Not a Foreign Person. Borrower (or if such entity is a disregarded entity for U.S. federal income tax purposes, such entity’s beneficial owner) is not a “foreign person” within the meaning of Section 1445(f)(3) of the Code.

4.1.16 Separate Lots. Except as set forth on Schedule 4.1.16 or in the Title Insurance Policies, each Individual Property is comprised of one (1) or more parcels which constitute a separate tax lot or lots and does not constitute a portion of any other tax lot not a part of such Individual Property.

4.1.17 Assessments. Except as set forth on Schedule 4.1.17 or in the Title Insurance Policies, to Xxxxxxxx’s knowledge, there are no pending or, to Xxxxxxxx’s knowledge, proposed special or other assessments for public improvements or otherwise affecting any Individual Property, nor are there any contemplated improvements to any Individual Property that may result in such special or other assessments, except to the extent, in each case, such assessments could not reasonably be expected to have an Individual Material Adverse Effect on such Individual Property.

4.1.18 Enforceability. The Loan Documents to which Borrower or Guarantor are a party are enforceable by Lender (or any subsequent holder thereof) in accordance with their respective terms, subject to principles of equity and bankruptcy, insolvency and other laws generally applicable to creditors’ rights and the enforcement of debtors’ obligations. The Loan Documents to which Borrower or Guarantor are a party are not subject to any right of rescission, set off, counterclaim or defense by Borrower or Guarantor, including the defense of usury, nor would the operation of any of the terms of the Loan Documents, or the exercise of any right thereunder, render the Loan Documents unenforceable (subject to principles of equity and bankruptcy, insolvency and other laws generally affecting creditors’ rights and the enforcement of debtors’ obligations), and none of Borrower, any Affiliate Manager, Guarantor, or, to Xxxxxxxx’s knowledge, any other Manager has asserted any right of rescission, set off, counterclaim or defense with respect thereto.

4.1.19 No Prior

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LOAN AGREEMENT