BUILDING LOAN AGREEMENT Dated as of March 6, 2017 among MORGAN STANLEY MORTGAGE CAPITAL HOLDINGS LLC, as Agent, and THE LENDERS NAMED HEREIN, as Lenders

TO BE FILED IN XXX XXXXXX XX XXX XXXXX XX XXX XXXX XXXXXX

Exhibit 10.1

MS Loan No. 16-48650

TO BE FILED IN XXX XXXXXX XX XXX XXXXX XX XXX XXXX XXXXXX

________________________________________________________

BUILDING LOAN AGREEMENT

Dated as of March 6, 2017

among

110 XXXXXXX PROPERTY INVESTORS III, LLC,
as Borrower,

XXXXXX XXXXXXX MORTGAGE CAPITAL HOLDINGS LLC,
as Agent,

and

THE LENDERS NAMED HEREIN,
as Lenders


Location:	000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx

Block:    77
Lot:    8
County:    New York

PREPARED BY AND UPON
RECORDATION RETURN TO:

Cadwalader, Xxxxxxxxxx & Xxxx LLP
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxx Xxxxxxxxxxx, Esq.

USActive 36631986.12

TABLE OF CONTENTS

Page



ARTICLE I		DEFINITIONS; PRINCIPLES OF CONSTRUCTION	1

	Section 1.1	Definitions	1
	Section 1.2	Principles of Construction	47

ARTICLE II		GENERAL TERMS	47

	Section 2.1	Loan Commitment; Disbursement to Borrower	47
	2.1.1	Agreement to Lend and Borrow	47
	2.1.2	No Reborrowings	48
	2.1.3	The Note, Building Loan Mortgage and Loan Documents	48
	2.1.4	Use of Proceeds	48

	Section 2.2	Interest Rate	48
	2.2.1	Interest Rate	48
	2.2.2	Interest Calculation	48
	2.2.3	Determination of Interest Rate	49
	2.2.4	Default Rate	50
	2.2.5	Usury Savings	50
	2.2.6	Breakage Indemnity	50

	Section 2.3	Debt Service Payments	51
	2.3.1	Payments Generally	51
	2.3.2	Monthly Debt Service Payment	51
	2.3.3	Payment on Maturity Date	51
	2.3.4	Late Payment Charge	51
	2.3.5	Method and Place of Payment	52
	2.3.6	Administrative Fee	52

	Section 2.4	Prepayments	52
	2.4.1	Voluntary Prepayments	52
	2.4.2	Mandatory Prepayments	53
	2.4.3	Prepayments Made While an Event of Default Exhibits	54
	2.4.4	Allocation of Prepayments	54

	Section 2.5	Advances	55
	2.5.1	Future Leasing Expense Advances	55
	2.5.2	Future Cap-Ex Advances; CapEx Budget	57
	2.5.3	No Obligation to do Work	59
	2.5.4	Inspections	59
	2.5.5	Additional Inspection Provisions	59
	2.5.6	No Waiver	60
	2.5.7	Additional Conditions to Advances	60
	2.5.8	Forced Funding of Future Funding Amount	60
	2.5.9	Cancellation of Advances	61
	2.5.10	Spec Buildout Work	61
	2.5.11	Make Ready Work	62
	2.5.12	Future Advances Generally	63

USActive 36631986.12 -i-

TABLE OF CONTENTS
(Continued)

Page




	Section 2.6	Release of Property	63
	2.6.1	Release on PAyment in Full	63

	Section 2.7	Cash Management	64
	2.7.1	Clearing Account	64
	2.7.2	Cash Management Account	65
	2.7.3	Reserved	68
	2.7.4	Control of Accounts	68

	Section 2.8	Interest Rate Cap Agreement	69
	2.8.1	Interest Rate Cap Agreement	69
	2.8.2	Pledge and Collateral Assignment	70
	2.8.3	Covenants	70
	2.8.4	Replacement Interest Rate Cap Agreement	71

	Section 2.9	Extension Options	72
	2.9.1	Extension Options	72
	2.9.2	Extension Documentation	74

	Section 2.10	Change in Law; Taxes	74
	2.10.1	Increased Costs	74
	2.10.2	Other Taxes	75

	Section 2.11	Taxes	75

ARTICLE III		EXCULPATION	77

	Section 3.1	Exculpation	77

ARTICLE IV		REPRESENTATIONS AND WARRANTIES	81

	Section 4.1	Borrower Representations	81
	4.1.1	Organization	81
	4.1.2	Proceedings	81
	4.1.3	No Conflicts	81
	4.1.4	Litigation	82
	4.1.5	Agreements	82
	4.1.6	Title	82
	4.1.7	Solvency	82
	4.1.8	Full and Accurate Disclosure	83
	4.1.9	No Plan Assets	83
	4.1.10	Compliance	84
	4.1.11	Financial Information	84
	4.1.12	Condemnation	84
	4.1.13	Federal Reserve Regulations	84
	4.1.14	Utilities and Public Access	84
	4.1.15	Not a Foreign Person	85
	4.1.16	Separate Lots	85
	4.1.17	Assessments	85

USActive 36631986.12 -ii-

TABLE OF CONTENTS
(Continued)

Page



	4.1.18	Enforceability	85
	4.1.19	No Prior Assignment	85
	4.1.20	Insurance	85
	4.1.21	Use of Property	85
	4.1.22	Certificate of Occupancy; Licenses	86
	4.1.23	Flood Zone	86
	4.1.24	Physical Condition	86
	4.1.25	Boundaries	86
	4.1.26	Leases	86
	4.1.27	Survey	87
	4.1.28	Principal Place of Business; State of Organization	87
	4.1.29	Filing and Recording Taxes	87
	4.1.30	Special Purpose Entity/Separateness	87
	4.1.31	Management Agreement; Leasing Agreement; Project Management Agreement	89
	4.1.32	Illegal Activity	89
	4.1.33	No Change in Facts or Circumstances; Disclosure	89
	4.1.34	Investment Company Act	89
	4.1.35	Embargoed Person	90
	4.1.36	Cash Management Account	90
	4.1.37	Filing of Returns; Payment of Taxes	91
	4.1.38	Section 22 Affidavit	91
	4.1.39	Reserved	91
	4.1.40	Environmental Representations	91
	4.1.41	Intentionally Omitted	92
	4.1.42	Labor Matters	92

	Section 4.2	Survival of Representations	92

ARTICLE V		BORROWER COVENANTS	92

	Section 5.1	Affirmative Covenants	92
	5.1.1	Existence; Compliance with Legal REquirements	92
	5.1.2	Taxes and Other Charges	93
	5.1.3	Litigation	94
	5.1.4	Access to Property	94
	5.1.5	Notice of Default	94
	5.1.6	Cooperate in Legal Proceedings	94
	5.1.7	Perform Loan Documents	94
	5.1.8	Award and Insurance Benefits	94
	5.1.9	Further Assurances	95
	5.1.10	Mortgage Taxes	95
	5.1.11	Financial Reporting	95
	5.1.12	Business and Operations	100
	5.1.13	Title to the Property	100

USActive 36631986.12 -iii-

TABLE OF CONTENTS
(Continued)

Page



	5.1.14	Costs of Enforcement	100
	5.1.15	Estoppel Statement	101
	5.1.16	Reserved	101
	5.1.17	Loan Proceeds	101
	5.1.18	Performance by Borrower	101
	5.1.19	Confirmation of Representations	101
	5.1.20	No Joint Assessment	101
	5.1.21	Leasing Matters	101
	5.1.22	Alterations	103
	5.1.23	Operation of Property	103
	5.1.24	No Credits on Account of the Obligations	106
	5.1.25	Personal Property	106
	5.1.26	Appraisals	106
	5.1.27	Financing Statements	106
	5.1.28	Initially Omitted	106
	5.1.29	ERISA	107
	5.1.30	CapEx	107
	5.1.31	Municipal Violations	108
	5.1.32	Temporary Certificates of Occupancy	108
	5.1.33	EDC Space	108

	Section 5.2	Negative Covenants	108
	5.2.1	Operation of Property	108
	5.2.2	Liens	109
	5.2.3	Dissolution	110
	5.2.4	Change in Business	110
	5.2.5	Debt Cancellation	110
	5.2.6	Zoning	110
	5.2.7	No Joint Assessment	110
	5.2.8	Principal Place of Business and Organization	111
	5.2.9	ERISA	111
	5.2.10	Transfers	111
	5.2.11	Reserved	115
	5.2.12	Special Purpose Entity/Separateness	115
	5.2.13	Embargoed Person; OFAC	115

	Section 5.3	Reserved	116
	Section 5.4	Environmental Covenants	116
	Section 5.5	Labor Matters	117

ARTICLE VI		INSURANCE; CASUALTY; CONDEMNATION	118

	Section 6.1	Insurance	118
	6.1.2	Insurance Company	122

	Section 6.2	Casualty	123

USActive 36631986.12 -iv-

TABLE OF CONTENTS
(Continued)

Page



	Section 6.3	Condemnation	123
	Section 6.4	Restoration	124

ARTICLE VII		RESERVE FUNDS	128

	Section 7.1	Tax and Insurance Escrow	128
	7.1.1	Tax and Insurance Escrow Funds	128
	7.1.2	Disbursements from Tax and Insurance Escrow Funds	129

	Section 7.2	Replacements and Replacement Reserve	129
	7.2.1	Replacement Reserve Funds	129
	7.2.2	Disbursements from Replacement Reserve Account	130
	7.2.3	Balance in the Replacement Reserve Account	130

	Section 7.3	Rollover Reserve	131
	7.3.1	Deposits to Rollover Reserve Funds	131
	7.3.2	Disbursements of Rollover Reserve Funds	132

	Section 7.4	Reserved	132
	Section 7.5	Reserved	132
	Section 7.6	Reserved	132
	Section 7.7	Excess Cash Reserve Funds	132
	Section 7.8	Reserve Funds, Generally	133
	Section 7.9	Distributions to Mezzanine Borrower	134

ARTICLE VIII		DEFAULTS	135

	Section 8.1	Event of Default	135
	Section 8.2	Remedies	139
	Section 8.3	Remedies Cumulative; Waivers	141

ARTICLE IX		SPECIAL PROVISIONS	142

	Section 9.1	Transfer of Loan	142
	Section 9.2	Cooperation	143
	Section 9.3	Servicer	144
	Section 9.4	Restructuring of Loan	145
	Section 9.5	Creation of Security Interest	146
	Section 9.6	Assignments and Participations	146

ARTICLE X		MISCELLANEOUS	147

	Section 10.1	Survival	147
	Section 10.2	Agent's Discretion	147
	Section 10.3	Governing Law	147
	Section 10.4	Modification, Waiver in Writing	149
	Section 10.5	Delay Not a Waiver	149
	Section 10.6	Notices	149
	Section 10.7	Trial by Jury	150
	Section 10.8	Headings	151
	Section 10.9	Severability	151

USActive 36631986.12 -v-

TABLE OF CONTENTS
(Continued)

Page



	Section 10.10	Preferences	151
	Section 10.11	Waiver of Notice	151
	Section 10.12	Remedies of Borrower	151
	Section 10.13	Expenses; Indemnity	152
	Section 10.14	Schedules Incorporated	153
	Section 10.15	Offsets, Counterclaims and Defenses	153
	Section 10.16	No Joint Venture of Partnership; No Third Party Beneficiaries	153
	Section 10.17	Publicity; Confidentiality	154
	Section 10.18	Waiver of Marshalling of Assets	154
	Section 10.19	Waiver of Counterclaim	154
	Section 10.20	Conflict; Construction of Documents; Reliance	154
	Section 10.21	Brokers and Financial Advisors	155
	Section 10.22	Prior Agreements	155
	Section 10.23	Cumulative Rights	155
	Section 10.24	Counterparts	155
	Section 10.25	Time Is of the Essence	156
	Section 10.26	Consent of Holder	156
	Section 10.27	Successor Laws	156
	Section 10.28	Performance by Borrower, Agent and Lender; Reliance on Third Parties	156
	Section 10.29	Acknowledgment and Consent to Bail-In of EEA Financial Institutions.	156
	Section 10.30	Intercreditor Agreement	157

ARTICLE XI		AGENT	157

	Section 11.1	Appointment and Authorization of Agent; Removal and Resignation of Agent	157
	Section 11.2	Reliance on Agent	158
	Section 11.3	Agent as a Lender	158

SCHEDULES

SCHEDULE I Rent Roll

SCHEDULE II Form of Draw Request

SCHEDULE III Borrower Organizational Chart

SCHEDULE IV Deposit Amounts

SCHEDULE V Federal Tax ID Numbers

SCHEDULE VI Reserved

SCHEDULE VII Minimum Leasing Guidelines

SCHEDULE VIII Leasing Status Report Items

SCHEDULE IX Form of U.S. Tax Compliance Certificate

SCHEDULE X Reserved

SCHEDULE XI Collective Bargaining Agreements

SCHEDULE XII Section 22 Affidavit

SCHEDULE XIII Form Date Down Endorsement

SCHEDULE XIV Municipal Violations

USActive 36631986.12 -vi-

BUILDING LOAN AGREEMENT

This BUILDING LOAN AGREEMENT, dated as of March 6, 2017 (as amended, restated, replaced, supplemented or otherwise modified from time to time, this “Agreement”), among 110 XXXXXXX PROPERTY INVESTORS III, LLC, a Delaware limited liability company, having its principal place of business at 000 Xxxx Xxxxxx, 00^xx Xxxxx, Xxx Xxxx, XX 00000 (“Borrower”) and XXXXXX XXXXXXX MORTGAGE CAPITAL HOLDINGS LLC, a New York limited liability company (“MSMCH”), having an office at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as administrative agent (including any of its successors and assigns, “Agent”) for XXXXXX XXXXXXX BANK, N.A., a national banking association having an office at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (“MSBNA”), and the other Lenders party hereto (together with such other co-lenders as may exist from time to time, “Lender” or “Lenders”) .

W I T N E S S E T H:

WHEREAS, Borrower desires to obtain from Lender the Building Loan (as defined below) in order to finance certain Approved Capital Expenses (as defined below) and Approved Leasing Expenses (as defined below) at the Property (as defined below); and

WHEREAS, Lender is willing to make the Building 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 Building Loan by Lender 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:

“Acceptable Letter of Credit” shall mean an evergreen letter of credit drawable on sight, issued by a bank reasonably acceptable to Agent, and otherwise in form and substance reasonably acceptable to Agent.

“Acknowledgment” shall mean the Acknowledgment, dated on or about the date hereof made by the Counterparty, or as applicable, an Approved Counterparty.

“ACS Lease” shall mean those certain renewal terms pertaining to The City of New York Department of Citywide Administrative Services (ACS) and The City of New York Department of Citywide Administrative Services (DJJ) pursuant to that certain term sheet delivered by Borrower to Agent by email dated March 3, 2017.

USActive 36631986.12

“Additional Insolvency Opinion” shall have the meaning set forth in Section 5.2.12(b) hereof.

“Administrative Fee” shall mean a fee in the sum of Twenty-Five Thousand and 00/100 Dollars ($25,000.00) per annum payable to Agent in accordance with Section 2.3.6.

“Advance” or “Advances” shall mean any disbursement of the proceeds of the Building Loan by Lender pursuant to the terms of this Agreement.

“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.

“Affiliated Manager” shall mean any Manager in which Borrower or Guarantor has, directly or indirectly, any legal, beneficial or economic interest.

“Agent” shall have the meaning set forth in the introductory paragraph hereto, together with any of its permitted successors and assigns.

“Aggregate Debt” shall mean the sum of (a) the Debt and (b) the Debt (as such term is defined in the Senior Loan Agreement).

“Aggregate Debt Service” shall mean, for any period, the sum of (a) Debt Service for such period, plus (b) Senior Loan Debt Service for such period.

“Aggregate Outstanding Principal Balance” shall mean the sum of each of (a) the Outstanding Principal Balance and (b) the Senior Loan Outstanding Principal Balance.

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

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

“Annual Budget” shall mean the operating budget, including all planned Capital Expenditures, for the Property prepared by Borrower in accordance with Section 5.1.11(d) hereof for the applicable Fiscal Year or other period.

“Appraisal” shall mean an “as is” appraisal acceptable to Agent prepared in accordance with the requirements of FIRREA, prepared by an independent third-party appraiser selected by Agent holding an MAI designation, who is state licensed or state certified if required under the laws of the state where the Property is located, who meets the requirements of FIRREA.

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

“Approved Capital Expenses” shall mean expenses for effecting and completing the Cap‑Ex as set forth in a CapEx Budget that are Building Loan Costs. For the avoidance of doubt, in no event shall Make Ready Expenses or Spec Buildout Expenses be considered Approved Capital Expenses.

USActive 36631986.12 -2-

“Approved Counterparty” shall mean a bank or other financial institution which has (a) (i) a long‑term unsecured debt rating of “A+” or higher by S&P, or (ii) both a short term credit rating from S&P of at least “A‑1” and a long term credit rating from S&P of at least “A”, and (b) a long‑term unsecured debt rating of not less than “A1” by Xxxxx’x and (c) (if the bank is rated by Fitch) a long term unsecured debt rating of “A-“ by Fitch; provided however, that SMBC Capital Markets, Inc. (with an Acceptable SMBC Credit Support Party as its credit support party) will be an Approved Counterparty so long as the rating of its credit support party (provided such credit support party shall be an Acceptable SMBC Credit Support Party ) is not downgraded, withdrawn or qualified by S&P or Xxxxx’x or Fitch from the long and short term ratings issued by such rating agencies below the lesser of the above rating (as applicable) or its ratings as of the date hereof. As used herein, an “Acceptable SMBC Credit Support Party” shall mean SMBC Derivative Products Limited or a replacement guarantor that meets the foregoing rating requirements and provides a guaranty on substantially the same form as the guaranty provided by SMBC Derivative Products Limited on the Closing Date, and provided any such credit support party guaranty guaranties all current and future obligations under the Interest Rate Cap Agreement or Replacement Interest Rate Cap Agreement, as applicable.

“Approved Leasing Expenses” shall mean actual out‑of‑pocket costs and expenses incurred by Borrower that are Building Loan Costs, in leasing space at the Property pursuant to Leases existing as of the date hereof (but only with respect to Approved Leasing Expenses to be paid from the Rollover Reserve Account) and Leases (including for avoidance of doubt amendments of leases) entered into in accordance with the Loan Documents after the date hereof, including brokerage commissions and tenant improvement costs and tenant improvement allowances (both hard and soft costs, including any fees payable to the Leasing Agent or Property Manager, for avoidance of doubt), which costs and expenses (a) are (i) with respect to Major Leases, specifically approved by Agent in connection with approving the applicable Lease, (ii) with respect to Leases that are not Major Leases, incurred in the ordinary course of business in compliance with the Minimum Leasing Guidelines and on market terms and conditions in connection with Leases which either do not require, or have received Agent’s approval under the Loan Documents, and with respect to which Agent shall have received a budget for such tenant improvement costs and a schedule of leasing commission payments payable in connection therewith (which leasing commission payments shall be deemed “Approved Leasing Expenses” for purposes of this Agreement so long as same are comparable to existing local market rates), or (iii) otherwise approved in writing by Agent (which approval shall not be unreasonably withheld, conditioned or delayed and shall be subject to the Deemed Consent Mechanics), and (b) are substantiated by executed Lease documents and brokerage agreements, as applicable (provided that notwithstanding the foregoing, Approved Leasing Expenses shall include Spec Buildout Expenses, to the extent permitted under Section 2.5.10 and Make Ready Expenses, to the extent permitted under Section 2.5.11).

“Approved Rating Agencies” shall mean each of S&P, Xxxxx’x, Fitch, Kroll, DBRS, Morningstar and Realpoint or any other nationally recognized statistical rating agency which has been approved by Agent and designated by Agent to assign a rating to the Securities.

“Assignment and Acceptance” shall have the meaning set forth in Section 9.6 hereof.

USActive 36631986.12 -3-

“Assignment of Leases” shall mean that certain first priority Assignment of Leases and Rents, dated as of the date hereof, from Borrower, as assignor, to Agent for the ratable benefit of Lender, as assignee, assigning to Agent for the ratable benefit of Lender all of Borrower’s interest in and to the Leases and Rents of the Property as security for the Building Loan, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Assignment of Leasing Agreement” shall mean either (i) that certain Assignment of Leasing Agreement and Subordination of Leasing Commissions, dated as of the date hereof, among Agent for the ratable benefit of Lender, Borrower and Leasing Agent (Savanna), as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time or (ii) that certain Assignment of Leasing Agreement and Subordination of Leasing Commissions, dated as of the date hereof, among Agent for the ratable benefit of Lender, Borrower and Leasing Agent (Newmark), as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time, as the context may require.

“Assignment of Management Agreement” shall mean that certain Assignment of Management Agreement and Subordination of Management Fees, dated as of the date hereof, among Agent for the ratable benefit of Lender, Borrower and Manager, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Assignment of Project Management Agreement” shall mean that certain Assignment of Project Management Agreement and Subordination of Project Management Fees, dated as of the date hereof, among Agent for the ratable benefit of Lender, Borrower and Project Manager (Savanna), as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Assignment of Rate Cap” shall mean that certain Assignment of Interest Rate Cap Agreement dated on or about the date hereof, between Agent for the ratable benefit of Lender and Borrower, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Assumed Note Rate” shall mean an interest rate equal to the sum of one percent (1%) plus the Interest Rate applicable to the preceding Interest Period.

“Award” shall mean any compensation paid by any Governmental Authority in connection with a Condemnation in respect of all or part of the Property.

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

“Bail-In Legislation” means, 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 for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.

“Bankruptcy Action” shall mean with respect to any Person (a) such Person filing a voluntary petition under the Bankruptcy Code or any other federal or state bankruptcy or insolvency

USActive 36631986.12 -4-

law; (b) the filing of an involuntary petition against such Person under the Bankruptcy Code or any other federal or state bankruptcy or insolvency law, or soliciting or causing to be solicited petitioning creditors for any involuntary petition against such Person; (c) such Person filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it, by any other Person under the Bankruptcy Code or any other federal or state bankruptcy or insolvency law, or soliciting or causing to be solicited petitioning creditors for any involuntary petition from any Person; (d) such Person consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, assignee, sequestrator (or similar official), liquidator, or examiner for such Person or any portion of the Property; (e) the filing of a petition against a Person seeking reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under the Bankruptcy Code or any other applicable law; (f) under the provisions of any other law for the relief or aid of debtors, an action taken by any court of competent jurisdiction that allows such court to assume custody or Control of a Person or of the whole or any substantial part of its property or assets or (g) such Person making an assignment for the benefit of creditors, or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due.

“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 or state bankruptcy or insolvency law.

“Basic Carrying Costs” shall mean, for any period, the sum of the following costs: (a) Taxes, (b) Other Charges and (c) Insurance Premiums.

“Borrower” shall have the meaning set forth in the introductory paragraph hereto, together with its successors and permitted assigns.

“Borrower Equity” shall mean any funds of the Borrower, including, without limitation, Excess Cash from the Property available to be distributed to Borrower and its constituent members pursuant to the terms of this Agreement and proceeds of Indebtedness permitted under the terms of this Agreement, but excluding (a) proceeds of the Loan and (b) Rents that are not distributable to Borrower or its constituent members.

“Borrower Party” shall mean Borrower, Mezzanine Borrower, Guarantor, any general partner or managing member of Borrower, Mezzanine Borrower or Guarantor, or any Affiliate in Control of, Controlled by, or under common Control with Borrower, Mezzanine Borrower or Guarantor.

“Breakage Costs” shall have the meaning set forth in Section 2.2.6 hereof.

“Broker” shall have the meaning set forth in Section 10.21 hereof.

“Building Loan” shall mean the loan made by Lender to Borrower pursuant to this Agreement in the principal amount of up to the Building Loan Amount.

USActive 36631986.12 -5-

“Building Loan Amount” shall mean an amount equal to TWENTY-SEVEN MILLION THREE HUNDRED THIRTY-EIGHT THOUSAND FOUR HUNDRED NINETY-SIX AND NO/100 DOLLARS ($27,338,496.00).

“Building Loan Costs” shall mean all costs and expenses associated with the Approved Capital Expenses and Approved Leasing Expenses (including Hard Costs and Indirect Costs) which are Costs of the Improvement.

“Building Loan Mortgage” shall mean that certain Building Loan Mortgage, Assignment of Leases and Rents and Security Agreement dated the date hereof, executed and delivered by Borrower to Agent for the ratable benefit of Lender as security for the Building Loan and encumbering the Property, as the same may be amended, restated, supplemented or otherwise modified from time to time.

“Business Day” shall mean any day other than a Saturday, Sunday or any other day on which any of the following institutions is not open for business: (a) banks and savings and loan institutions in New York, New York, (b) the trustee under a Securitization (or, if no Securitization has occurred, Agent), (c) any Servicer, (d) the financial institution that maintains any collection account for or on behalf of any Servicer or any Reserve Funds, (e) the New York Stock Exchange or (f) the Federal Reserve Bank of New York.

“Cap‑Ex” shall mean the construction and completion of the projects set forth on a CapEx Budget.

“Cap-Ex Contract” shall have the meaning set forth in Section 5.1.30(a) hereof.

“CapEx Budget” shall have the meaning set forth in Section 2.5.2(a)(vii) hereof.

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

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

“Cash Management Agreement” shall mean that certain Cash Management Agreement, dated as of the date hereof, by and among Borrower, Mezzanine Borrower, Manager, Deposit Bank, Mezzanine Agent and Agent, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Cash Trap Cure” shall mean the occurrence of any of the following with respect to the applicable Cash Trap Event: (a) in the case of a Cash Trap Event set forth in clause (a) of the definition of Cash Trap Event, Agent accepts, in its sole and absolute discretion, a cure of the Event of Default giving rise to such Cash Trap Event occurs and no other Event of Default has occurred which is continuing and no other Cash Trap Event has occurred and is continuing at the end of such period; (b) in the case of a Cash Trap Event set forth in clause (b) of the definition of Cash Trap Event, Agent receives notice from the applicable Mezzanine Agent that such Mezzanine Agent has

USActive 36631986.12 -6-

accepted a cure of the Mezzanine Loan Event of Default giving rise to such Cash Trap Event and that no other Mezzanine Loan Event of Default has occurred which is continuing; and (c) in the case of a Cash Trap Event set forth in clause (c) of the definition of Cash Trap Event, if for two (2) consecutive calendar quarters since the calendar quarter in which the Cash Trap Period occurred (i) no Event of Default has occurred and is continuing at the end of such period, (ii) no other Cash Trap Event has occurred and is continuing at the end of such period, and (iii) the Debt Yield during each such two (2) calendar quarter period is equal to or greater than the then applicable Debt Yield Requirement (it being agreed that Borrower may, at its sole election satisfy all of the DY Cash Trap Cure Conditions at Borrower’s sole cost and expense to satisfy the applicable Debt Yield Requirement).

“Cash Trap Event” shall mean the occurrence of any of the following: (a) an Event of Default, (b) a Mezzanine Loan Event of Default or (c) if as of any calendar quarter, the Debt Yield is less than the then applicable Debt Yield Requirement.

“Cash Trap Period” shall be deemed to commence upon the occurrence of a Cash Trap Event and shall continue until all prior Cash Trap Events have been the subject of a Cash Trap Cure.

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

“Central Bank Pledge” shall have the meaning set forth in Section 9.5 hereof.

“Certification of Documents” shall mean that certain Certification of Financial Statements, Operating Statement, and Standard Form Lease, dated as of the date hereof, made by Borrower for the benefit of Agent for the benefit of Lender.

“Change in Law” shall mean the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law and whether or not failure to comply therewith would be unlawful) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Xxxx‑Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.

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

USActive 36631986.12 -7-

“Clearing Account Agreement” shall mean that certain Clearing Account Agreement, dated the date hereof among Borrower, Manager, Agent and the Clearing Bank, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time, relating to funds deposited in the Clearing Account.

“Clearing Bank” shall mean Xxxxx Fargo Bank, N.A, or any successor or permitted assigns thereof.

“Closing Certificate” shall mean that certain Omnibus Closing Certificate, dated as of the date hereof, made by Borrower and Guarantor(s) for the benefit of Agent for the benefit of Lender, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

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

“Code” shall mean the Internal Revenue Code of 1986, as amended.

“Co-Lender Agreement” shall mean that certain Agency and Co-Lender Agreement, dated as of the date hereof, between Agent and the Lenders, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Collateral” shall have the meaning set forth in the Building Loan Mortgage.

“Commence” shall mean the commencement of physical construction of all or any portion of either: (a) any project of Cap-Ex or (b) a particular project with respect to the Make Ready Work. The terms “Commenced” and “Commencement” shall have correlative meanings.

“Completion” shall mean the satisfaction by Borrower of each of the following conditions: (a) the performance and final completion of: (i) each project of Cap‑Ex that has actually Commenced (which shall include any Cap‑Ex that Commenced prior to the date hereof), and (ii) a particular project that constitutes Make Ready Work that has actually Commenced, each in a good and workmanlike manner, free and clear of defects, and free and clear of Liens or claims for liens for material supplied or labor or services performed in connection therewith (including the delivery of final Lien waivers from all contractors and mechanics’ men which have performed the Cap‑Ex and Make Ready Work) and in accordance with the applicable plans and specifications, the CapEx Budget with respect to the Cap‑Ex and the Make Ready Budget with respect to the Make Ready Work, and in compliance with all Legal Requirements (including landmarks and zoning laws and all applicable administrative ordinance and code requirements), and (b) Agent has received reasonably acceptable evidence that all (i) applicable Governmental Approvals relating to the Cap‑Ex project that has actually Commenced (which shall include Cap‑Ex that Commenced prior to the date hereof), and/or a particular project that constitutes Make Ready Work that has actually Commenced, (ii) all covenants and obligations of Borrower relating to such Cap‑Ex and/or Make Ready Work in all Leases then in effect have been satisfied in all material respects and (iii) if applicable, temporary or permanent certificates of occupancy for all or the applicable portion of the Improvements have been issued by all applicable Governmental Authorities as may be required under applicable Legal Requirements so that the Property can be so completed.

USActive 36631986.12 -8-

“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 the Property, or any interest therein or right accruing thereto, including any right of access thereto.

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

“Control” shall mean, with respect to any Person, the possession, directly or indirectly, of (a) the power to direct or cause the direction of the management, policies or activities of such Person, whether through ownership of voting securities, by contract or otherwise (it being acknowledged that a Person shall not be deemed to Control another Person if they have certain customary “major decision” consent or approval rights over actions taken by such other Person) or (b) greater than forty-nine percent (49%) of the ownership interests of the applicable Person. “Controlled” and “Controlling” shall have correlative meanings.

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

“Costs of the Improvement” shall mean those items defined as an “improvement” and/or a “cost of improvement” under Section 2 of Article 1 of the Lien Law, as such term applies to the Approved Capital Expenses and Approved Leasing Expenses.

“Counterparty” shall mean, with respect to the Interest Rate Cap Agreement, the Approved Counterparty party thereto, and with respect to any Replacement Interest Rate Cap Agreement, any Approved Counterparty thereunder.

“Counterparty Opinion” shall have the meaning set forth in Section 2.8.3(f) hereof.

“Covered Rating Agency Information” shall have the meaning set forth in Section 10.13(d) hereof.

“DBRS” shall mean Dominion Bond Rating Service.

“Debt” shall mean the Outstanding Principal Balance together with all interest accrued and unpaid thereon and all other sums (including any Prepayment Premium and Breakage Costs) due to Lender in respect of the Loan under the Note, this Agreement, the Building Loan Mortgage or any other Loan Document.

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

“Debt Service Coverage Ratio” shall mean the quotient obtained by dividing (i) Net Operating Income by (ii) the sum of (x) Aggregate Debt Service plus (y) Mezzanine Debt Service projected over the twelve (12) month period subsequent to the date of calculation (with LIBOR equaling the strike price required pursuant to Section 2.9.1(b)).

“Debt Yield” shall mean, as of the date of calculation, the percentage calculated by Borrower and approved by Agent equal to the quotient, stated as a percentage, obtained by dividing (a) the

USActive 36631986.12 -9-

Net Operating Income as of such date by (b) sum of (i) the Aggregate Outstanding Principal Balance plus (ii) the Mezzanine Loan Outstanding Principal Balance on such date.

“Debt Yield Requirement” shall mean, (a) commencing on the Closing Date through the Stated Maturity Date, (i) provided no Material NYS Insurance Lease Event has occurred, there shall be no Debt Yield Requirement, or (ii) if a Material NYS Insurance Lease Event has occurred, 6.0%, (b) commencing on the first day immediately following the Stated Maturity Date through the First Extended Maturity Date, 6.50%, (c) commencing on the first day immediately following the First Extended Maturity Date through the Second Extended Maturity Date, 7.00%, or (d) commencing on the first day immediately following the Second Extended Maturity Date through the Third Extended Maturity Date, 7.75%.

“Deemed Consent Mechanics” shall mean, whenever Agent’s approval or consent is required pursuant to the provisions of a particular Section of this Agreement (which section expressly references that such approval or consent is subject to the Deemed Consent Mechanics), and so long as no Event of Default or Mezzanine Loan Event of Default has occurred which is then continuing, Agent’s consent shall be deemed given if:

(a) the first correspondence from Borrower to Agent requesting such approval or consent is in an envelope marked “PRIORITY” and shall conspicuously state in 14 point or larger bold‑faced type, a legend at the top of the first page thereof stating that “FIRST NOTICE: THIS IS A REQUEST FOR CONSENT UNDER THE LOAN BY AGENT TO BORROWER. FAILURE TO RESPOND TO THIS REQUEST WITHIN TEN (10) BUSINESS DAYS MAY RESULT IN THE REQUEST BEING DEEMED GRANTED”, and is accompanied by the information and documents required under such Section, and any other information reasonably requested by Agent in writing prior to the expiration of such ten (10) Business Day period in order to adequately review the same has been delivered;

(b) Agent has failed to so respond by the tenth (10^th) Business Day, and Borrower sends to Agent a second notice requesting approval in an envelope marked “PRIORITY” and shall conspicuously state in 14 point or larger bold‑faced type, a legend at the top of the first page thereof stating that “SECOND AND FINAL NOTICE: THIS IS A REQUEST FOR CONSENT UNDER THE LOAN BY [AGENT] TO [BORROWER] TO. IF YOU FAIL TO PROVIDE A RESPONSE (E.G., APPROVAL, DENIAL OR REQUEST FOR CLARIFICATION OR MORE INFORMATION) TO THIS REQUEST FOR APPROVAL IN WRITING WITHIN FIVE (5) BUSINESS DAYS, YOUR APPROVAL SHALL BE DEEMED GIVEN”; and

(c) Agent fails to provide a response (e.g., approval, denial or request for clarification or more information) to such second request for approval within 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) five percent (5%) above the Interest Rate.

USActive 36631986.12 -10-

“Deposit Bank” shall mean Xxxxx Fargo Bank, N.A. or any successor Eligible Institution acting as the “Deposit Bank” under the Cash Management Agreement.

“Disclosure Document” shall mean a prospectus, prospectus supplement, private placement memorandum, offering memorandum, offering circular, term sheet, road show presentation materials or other offering documents or marketing materials, in each case in preliminary or final form, used to offer Securities in connection with a Securitization.

“Disregarded Entity” shall mean an entity disregarded from its owner for federal income tax purposes under United States Treasury regulations Section 301.7701-3.

“Dollars” and the sign “$” shall mean lawful money of the United States of America.

“DY Cash Trap Cure Conditions” shall mean (a) (i) Borrower has delivered to Agent an Acceptable Letter of Credit, along with such other documents and instruments reasonably acceptable to Agent to grant Agent for the ratable benefit of Lender a first priority security interest in such letter of credit to secure Borrower’s obligations to repay the Debt to Lender hereunder, (ii) Senior Mezzanine Borrower has delivered to Senior Mezzanine Agent an “Acceptable Letter of Credit” (as such term is defined in the Senior Mezzanine Loan Agreement), along with such other documents and instruments reasonably acceptable to Senior Mezzanine Agent to grant Senior Mezzanine Agent for the ratable benefit of Senior Mezzanine Lender a first priority security interest in such letter of credit to secure Senior Mezzanine Borrower’s obligations to repay the “Debt” (as such term is defined in the Senior Mezzanine Loan Agreement) to Senior Mezzanine Lender under the Senior Mezzanine Loan Agreement, and (iii) Junior Mezzanine Borrower has delivered to Junior Mezzanine Agent an “Acceptable Letter of Credit” (as such term is defined in the Junior Mezzanine Loan Agreement), along with such other documents and instruments reasonably acceptable to Junior Mezzanine Agent to grant Junior Mezzanine Agent for the ratable benefit of Junior Mezzanine Lender a first priority security interest in such letter of credit to secure Junior Mezzanine Borrower’s obligations to repay the “Debt” (as such term is defined in the Junior Mezzanine Loan Agreement) to Junior Mezzanine Lender under the Junior Mezzanine Loan Agreement, each, on a pro rata basis, in the amount that, when applied to the Aggregate Outstanding Principal Balance and the Mezzanine Loan Outstanding Principal Balance (including the corresponding prepayment made to the Mezzanine Loan in satisfaction of the “DY Cash Trap Cure Conditions” thereunder), would be sufficient to satisfy the then applicable Debt Yield Requirement, and delivered together with the payment of Agent’s costs and expenses in connection therewith or (b) Borrower has made a partial prepayment of the Loan and each Mezzanine Borrower has made a partial prepayment of the applicable Mezzanine Loan on a pro rata basis in an amount that, when applied to the Aggregate Outstanding Principal Balance and the Mezzanine Loan Outstanding Principal Balance (including the corresponding prepayment made to the Mezzanine Loan in satisfaction of the “DY Cash Trap Cure Conditions” thereunder), would be sufficient to satisfy the then applicable Debt Yield Requirement, together with any applicable Prepayment Premium due and payable in connection with such prepayment and the payment of Agent’s, Senior Mezzanine Agent’s and Junior Mezzanine Agent’s reasonable out-of-pocket costs and expenses in connection therewith; provided that no other prepayment fee, premium or penalty shall be due and payable in connection therewith.

USActive 36631986.12 -11-

“EDC Lease” shall mean those certain renewal terms pertaining to the EDC pursuant to that certain term sheet delivered by Borrower to Agent by email dated March 3, 2017.

“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.

“Eligible Account” shall mean a separate and identifiable account from all other funds held by the holding institution that is either (a) 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 (b) a segregated trust account or accounts maintained with a federal- or state‑chartered depository institution or trust company acting in its fiduciary capacity that has a Xxxxx’x rating of at least “Baa3” and which, in the case of a state‑chartered depository institution or trust company, is subject to regulations substantially similar to 12 C.F.R. § 9.10(b), having in either case a combined capital and surplus of at least Fifty Million and No/100 Dollars ($50,000,000.00) and subject to supervision or examination by federal and state authority, as applicable. An Eligible Account will not be evidenced by a certificate of deposit, passbook or other instrument.

“Eligible Institution” shall mean 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 and “P‑1” by Moody’s, in the case of accounts in which funds are held for thirty (30) days or less (or, in the case of accounts in which funds are held for more than thirty (30) days, the long‑term unsecured debt obligations of which are rated at least “A+” by S&P and “Aa1” by Moody’s.

“Embargoed Person” shall mean any person, entity or government subject to 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, with the result that the investment in Borrower, Mezzanine Borrower, Principal or Guarantor, as applicable (whether directly or indirectly), is prohibited by law or the Loan made by Lender is in violation of law.

USActive 36631986.12 -12-

“Environmental Indemnity” shall mean that certain Environmental Indemnity Agreement, dated as of the date hereof, executed by Borrower and Guarantor in connection with the Loan for the benefit of Agent for the ratable benefit of Lender, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Environmental Reports” shall have the meaning set forth in Section 4.1.39 hereof.

“Environmental Statutes” shall mean any present and future federal, state and local laws, statutes, ordinances, rules, regulations and the like, as well as common law, relating to protection of human health or the environment, relating to Hazardous Substances, and/or relating to liability for or costs of other actual or threatened danger to human health or the environment. The term “Environmental Statutes” includes, but is not limited to, the following statutes, as amended, any successor thereto, and any regulations promulgated pursuant thereto, and any state or local statutes, ordinances, rules, regulations and the like addressing similar issues: the Comprehensive Environmental Response, Compensation and Liability Act; the Emergency Planning and Community Right‑to‑Know Act; the Hazardous Substances Transportation Act; the Resource Conservation and Recovery Act (including but not limited to Subtitle I relating to underground storage tanks); the Solid Waste Disposal Act; the Clean Water Act; the Clean Air Act; the Toxic Substances Control Act; the Safe Drinking Water Act; the Occupational Safety and Health Act; the Federal Water Pollution Control Act; the Federal Insecticide, Fungicide and Rodenticide Act; the Endangered Species Act; the National Environmental Policy Act; and the Rivers and Harbors Appropriation Act. The term “Environmental Statutes” also includes, but is not limited to, any present and future federal, state and local laws, statutes, ordinances, rules, regulations, permits or authorizations and the like, as well as common law, that (a) condition transfer of property upon a negative declaration or other approval of a Governmental Authority of the environmental condition of the Property or any portion thereof; (b) require notification or disclosure of releases of Hazardous Substances or other environmental condition of a property to any Governmental Authority or other Person, whether or not in connection with any transfer of title to or interest in such property; (c) impose conditions or requirements in connection with permits or other authorization for lawful activity, in each case to the extent relating to Hazardous Substances; (d) relate to nuisance, trespass or other causes of action related to the Property or any portion thereof, in each case to the extent relating to Hazardous Substances; or (e) relate to wrongful death, personal injury, or property or other damage in connection with any physical condition or use of the Property or any portion thereof, in each case to the extent relating to Hazardous Substances.

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

“ERISA Affiliate” shall mean each person (as defined in Section 3(9) of ERISA) that together with Borrower, Mezzanine Borrower or Guarantor would be deemed to be a “single employer” within the meaning of Section 414(b), (c), (m), (n) or (o) of the Code.

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

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

USActive 36631986.12 -13-

“Excess Cash” shall have the meaning set forth in Section 2.7.2(b)(ix) hereof.

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

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

“Exchange Act” shall mean the Securities Exchange Act of 1934, as the same may be amended, modified or replaced, from time to time.

“Exchange Act Filing” shall have the meaning set forth in Section 5.1.11(e) hereof.

“Excluded Taxes” shall mean any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient: (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or its applicable lending office located in, the jurisdiction imposing such Taxes (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Foreign Lender or foreign participant, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Foreign Lender with respect to an applicable interest in the Building Loan pursuant to a law in effect on the date on which (i) such Foreign Lender acquires such interest in the Building Loan or (ii) such Foreign Lender changes its lending office, except in each case to the extent that, pursuant to Section 2.11, amounts with respect to such Taxes were payable either to such Foreign Lender’s assignor immediately before such Foreign Lender became a party hereto or to such Foreign Lender immediately before it changed its lending office, (c) Taxes attributable to the Lender’s failure to comply with Section 2.11(e) and (d) any U.S. federal withholding Taxes imposed under FATCA.

“Extension Fee” shall mean a non‑refundable fee equal to (a) with respect to the First Extension Option, zero (0), (b) with respect to the Second Extension Option, one‑eighth of one percent (0.125%) of then Outstanding Principal Balance of the Building Loan and (c) with respect to the Third Extension Option, one‑quarter of one percent (0.25%) of then Outstanding Principal Balance of the Building Loan.

“Extension Option” shall mean the First Extension Option, the Second Extension Option or the Third Extension Option, as applicable.

“Extension Notice” shall mean the First Extension Notice, the Second Extension Notice or the Third Extension Notice, as applicable.

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

“FATCA” shall mean Sections 1471 through 1474 of the Code as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to company with), any current or future regulations or official interpretations thereof and any agreement entered into pursuant Section 1471(b)(1) of the Code.

USActive 36631986.12 -14-

“Fee Letter” shall mean that certain fee letter agreement between Borrower, Agent and Lender dated as of the Closing Date.

“First Extended Maturity Date” shall have the meaning set forth in Section 2.9.1 hereof.

“First Extension Notice” shall have the meaning set forth in Section 2.9.1 hereof.

“First Extension Option” shall have the meaning set forth in Section 2.9.1 hereof.

“First Extension Term” shall have the meaning set forth in Section 2.9.1 hereof.

“First Payment Date” shall have the meaning set forth in Section 2.3.2 hereof.

“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.

“Forced Funding Date” shall have the meaning set forth in Section 2.5.8 hereof.

“Foreign Lender” shall mean a Lender at any time that it is not a U.S. Person.

“Full Replacement Cost” shall have the meaning set forth in Section 6.1(a)(i) hereof.

“Future Cap‑Ex Advance” shall have the meaning set forth in Section 2.1.1 hereof.

“Future Cap‑Ex Advance Amount” shall have the meaning set forth in Section 2.1.1 hereof.

“Future Funding Amount” shall have the meaning set forth in Section 2.1.1 hereof.

“Future Leasing Expense Advance” shall have the meaning set forth in Section 2.1.1 hereof.

“Future Leasing Expense Advance Amount” shall have the meaning set forth in Section 2.1.1 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 xxxx (xxxxxxx, xxxxx, xxxxxx, xxxxxxxx, xxxxxxxxx, xxxx, foreign or otherwise) whether now or hereafter in existence.

“Gross Income from Operations” shall mean, as of any date of determination, the sum of all of the following, without duplication (1) regularly scheduled base Rents due and payable by Tenants under the Leases as of the date on which Gross Income from Operations is measured, annualized, and (2) all other Rent (i.e. other than base Rent) including pass‑throughs and

USActive 00000000.12 -15-

reimbursements and any other recurring items of Rent, reasonably projected by Borrower (and reasonably approved by Agent) for the 12-month period following the date on which Gross Income from Operations is measured, but excluding in each case (a) Rents from Tenants that (i) are delinquent in the payment of base rent for sixty (60) days or more, (ii) have less than three (3) months (or, in the case of the Tenant under the EDC Lease, twelve (12) months) remaining on the term of the applicable Lease and have not renewed such Lease, (iii) with respect to Leases with a remaining option to renew, have less than four (4) months remaining on the term of such Lease and have not renewed such Lease pursuant to the terms of such Lease in accordance with such option and the notice period for such option has expired, (iv) have remaining free rent as of the date on which Gross Income from Operations is measured in excess of 1.2 months of free rent per Lease year, not to exceed twelve (12) months in total with respect to their Lease (unless such free rent has been reserved with Agent, in which case such amount shall be included in such calculation) or (v) are or whose Lease guarantors are the subject of, or otherwise subject to, a Bankruptcy Action and such Lease has not been assumed in connection with such Bankruptcy Action, (b) sales, use and occupancy or other taxes on receipts required to be accounted for by Borrower to any Governmental Authority, (c) refunds and uncollectible accounts, (d) proceeds from the sale of furniture, fixtures and equipment, (e) Insurance Proceeds and Condemnation Proceeds (other than business interruption or other loss of income insurance) payable following a Casualty or Condemnation of all or any portion of the Property, (f) any disbursements to Borrower from any of the Reserve Funds, (g) if a Material NYS Insurance Lease Event pursuant to clause (a) of the definition thereof has occurred, commencing on the date that is twelve (12) months prior to the date that the termination of such Lease is effective, all Rents or other income derived from the NYS Insurance Lease and (h) if a Material NYS Insurance Lease Event pursuant to clause (b) of the definition thereof has occurred, commencing immediately upon execution of the amendment, modification or partial termination of the NYS Insurance Lease, all Rents or other income derived from the portion of the premises that has been surrendered by the Insurance Superintendent. Notwithstanding the foregoing, to the extent a tenant is excluded from the calculation of Gross Income from Operations because of a reason listed in clauses (a)(i) through (v) and (h) above, if Borrower enters into a replacement Lease with another Tenant in compliance with the terms and provisions of Section 5.1.21, then such replacement Lease shall be included in the calculation of Gross Income from Operations.

“Guarantor” shall mean, individually and collectively and jointly and severally, Savanna Real Estate Fund III, L.P., a Delaware limited partnership and Savanna Real Estate (PIV) Fund III, L.P., a Delaware limited partnership.

“Guaranty” shall mean that certain Guaranty of Recourse Obligations, dated as of the date hereof, from Guarantor in favor of Agent for the ratable benefit of Lender, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Hard Costs” shall mean those Building Loan Costs which are for labor, materials, tools, equipment and fixtures.

“Hazardous Substances” shall include, but are not limited to, (a) any and all substances (whether solid, liquid or gas) defined, listed, or otherwise classified as pollutants, hazardous wastes, hazardous substances, hazardous materials, extremely hazardous wastes, or words of similar

USActive 36631986.12 -16-

meaning or regulatory effect under any present or future Environmental Statutes or that may have a negative impact on human health or the environment, including, but not limited to, petroleum and petroleum products, asbestos and asbestos‑containing materials, polychlorinated biphenyls, lead, radon, radioactive materials, flammables and explosives, but excluding substances of kinds and in amounts ordinarily and customarily used or stored in such properties similar to the Property for the purposes of cleaning or other maintenance or operations and otherwise in compliance in all material respects with all Environmental Statutes, and (b) mold, mycotoxins, microbial matter, and/or airborne pathogens (naturally occurring or otherwise) which pose a threat (imminent or otherwise) to human health or the environment or adversely affect the Property or any portion thereof.

“Improvements” shall have the meaning set forth in the granting clause(s) of the Building Loan Mortgage.

“Increased Costs” shall have the meaning set forth in Section 2.10.1 hereof.

“Indebtedness” shall mean for any Person, on a particular date, the sum (without duplication) at such date of (a) all indebtedness or liability 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) 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 otherwise to assure a creditor against loss; (g) obligations secured by any Liens, whether or not the obligations have been assumed (other than Permitted Encumbrances) and (h) any property-assessed clean energy loans or similar indebtedness, including, without limitation, if such loans or indebtedness are made or otherwise provided by any Governmental Authority and/or secured or repaid (directly or indirectly) by any taxes or similar assessments (a “PACE Transaction”).

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

“Indemnified Parties” shall mean Agent, Lender and any Affiliate or designee of Agent or Lender that has filed any registration statement relating to a Securitization or has acted as the sponsor or depositor in connection with a Securitization, any Affiliate of Agent or Lender that acts as an underwriter, placement agent or initial purchaser of Securities issued in a Securitization, any other co‑underwriters, co‑placement agents or co‑initial purchasers of Securities issued in a Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person who Controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, any Person that is or will have been involved in the origination of the Loan, any Person that is or will have been involved in the administration or servicing of the Loan secured hereby, any Person in whose name the encumbrance created by the Building Loan Mortgage is or will have been recorded, any Person that may hold or acquire or will have held a full or partial interest in the Loan secured hereby (including, but not limited to, investors or prospective investors in the Securities, as well as custodians, trustees and other fiduciaries that hold or have held a full or partial interest in the Loan secured hereby for the

USActive 36631986.12 -17-

benefit of third parties) as well as the respective directors, officers, shareholders, partners, employees, agents, servants, representatives, contractors, subcontractors, Affiliates, subsidiaries, participants, successors and assigns of any and all of the foregoing (including, but not limited to, any other Person that holds or acquires or will have held a participation or other full or partial interest in the Loan, whether during the term of the Loan or as a part of or following a foreclosure of the Loan and including, but not limited to any successors by merger, consolidation or acquisition of all or a substantial portion of Agent’s or Lender’s assets and business).

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

“Independent Director” shall mean an individual who has prior experience as an independent director, independent manager or independent member with at least three years of employment experience and 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, another nationally‑recognized company reasonably approved by Agent, in each case that is not an Affiliate of Borrower and that provides professional Independent Directors and other corporate services in the ordinary course of its business, and which individual is duly appointed as an Independent Director and is not, and has never been, and will not while serving as Independent Director be, any of the following:

(a) a member, partner, equityholder, manager, director, officer or employee of Borrower or any of its equityholders or Affiliates (other than as an Independent Director of Borrower or an Affiliate of Borrower that does not own a direct or indirect ownership interest in Borrower and that is required by a creditor to be a single purpose bankruptcy remote entity, provided that such Independent Director is employed by a company that routinely provides professional Independent Directors or managers in the ordinary course of its business);

(b) a creditor, supplier or service provider (including provider of professional services) to Borrower or any of its equityholders or Affiliates (other than a nationally recognized company that routinely provides professional Independent Directors and other corporate services to Borrower or any of its Affiliates in the ordinary course of its business);

(c) an immediate family member of any such member, partner, equityholder, manager, director, officer, employee, creditor, supplier or service provider; or

(d) a Person that controls (whether directly, indirectly or otherwise) any of (a), (b) or (c) above.

A natural person who otherwise satisfies the foregoing definition and satisfies subparagraph (a) by reason of being the Independent Director of a “special purpose entity” affiliated with Borrower that does not own a direct or indirect ownership interest in Borrower shall be qualified to serve as an Independent Director of Borrower, provided that the fees that such individual earns from serving as an Independent Director of affiliates of Borrower in any given year constitute in the aggregate less than five percent (5%) of such individual’s annual income for that year. For purposes of this paragraph, a “special purpose entity” is an entity, whose organizational documents

USActive 36631986.12 -18-

contain restrictions on its activities and impose requirements intended to preserve such entity’s separateness that are substantially similar to those contained in the definition of Special Purpose Entity of this Agreement.

“Indirect Costs” shall mean those Building Loan Costs which are not Hard Costs, including but not limited to, leasing commissions, architect’s, engineer’s, general contractor’s and Project Manager’s fees, interest on the Building Loan, recording taxes and title charges in respect of the Building Loan Mortgage, Taxes and Other Charges, Insurance Premiums and such other non‑construction costs as are part of the Cost of the Improvements.

“Initial Insurance Premiums Deposit” shall mean the amount set forth on Schedule IV.

“Initial Tax Deposit” shall mean the amount set forth on Schedule IV.

“Insolvency Opinion” shall mean that certain substantive non‑consolidation opinion letter, dated the date hereof, delivered to Agent in connection with the Loan.

“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 Superintendent” means The Superintendent of Insurance of The State of New York, as Receiver, in its capacity as the tenant under the NYS Insurance Lease.

“Intercreditor Agreement” means any intercreditor agreement between Agent, on behalf of itself and Lender, as senior lender, Senior Mezzanine Agent, on behalf of itself and Senior Mezzanine Lender, and Junior Mezzanine Agent, on behalf of itself and Mezzanine Lender, as mezzanine lenders, and any other lenders that may from time to time become a party thereto.

“Interest Determination Date” shall mean, (a) with respect to the initial Interest Period, the date that is two (2) Business Days before the Closing Date and (b) with respect to any other Interest Period, the date that is two (2) Business Days prior to the seventh (7^th) day of the calendar month in which such Interest Period commences. When used with respect to an Interest Determination Date, “Business Day” shall mean any day on which banks are open for dealing in foreign currency and exchange in London. The Interest Determination Date shall be subject to adjustment as described in Section 2.3.2 below.

“Interest Period” shall mean (a) initially, the period commencing on and including the Closing Date and ending on and including the sixth (6^th) day of the calendar month in which the Closing Date occurs, and (b) thereafter, for any specified Payment Date including the Maturity Date, the period commencing on and including the seventh (7^th) day of the calendar month prior to the calendar month in which such Payment Date occurs and ending on and including the sixth (6^th) day of the calendar month in which such Payment Date occurs. The Interest Period shall be subject to adjustment as described in Section 2.3.2 below.

USActive 36631986.12 -19-

“Interest Rate” shall mean, with respect to each Interest Period, an interest rate per annum at which the Outstanding Principal Balance bears interest from time to time in accordance with the provisions of Section 2.2 hereof.

“Interest Rate Cap Agreement” shall mean the Confirmation and Agreement (together with the confirmation and schedules relating thereto) that complies with all of the requirements of Section 2.8 hereof, dated on or about the date hereof, between the Counterparty and Borrower, obtained by Borrower and collaterally assigned to Agent for the ratable benefit of Lender pursuant to the Assignment of Rate Cap dated on or about the date hereof. After delivery of a Replacement Interest Rate Cap Agreement to Agent for the ratable benefit of Lender, the term “Interest Rate Cap Agreement” shall be deemed to mean such Replacement Interest Rate Cap Agreement.

“Investor” shall have the meaning set forth in Section 9.1(a) hereof.

“IRS” shall mean the United States Internal Revenue Service.

“Junior Mezzanine Agent” shall mean Xxxxxx Xxxxxxx Mortgage Capital Holdings, a New York limited liability company, together with its successors and assigns.

“Junior Mezzanine Borrower” shall mean 110 Xxxxxxx Junior Mezz III, LLC, a Delaware limited liability company.

“Junior Mezzanine Debt Service” shall mean “Debt Service” as defined in the Junior Mezzanine Loan Agreement.

“Junior Mezzanine Lender” shall mean Xxxxxx Xxxxxxx Mortgage Capital Holdings, a New York limited liability company, together with its successors and assigns.

“Junior Mezzanine Loan” shall mean the mezzanine loan made on the Closing Date by Junior Mezzanine Lender to Junior Mezzanine Borrower in the aggregate principal amount set forth in the Junior Mezzanine Loan Note.

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

“Junior Mezzanine Loan Default” shall mean a “Default as defined in the Junior Mezzanine Loan Agreement.

“Junior Mezzanine Loan Documents” shall mean the “Loan Documents” as defined in the Junior Mezzanine Loan Agreement.

“Junior Mezzanine Loan Event of Default” shall mean an “Event of Default” as defined in the Junior Mezzanine Loan Agreement.

USActive 36631986.12 -20-

“Junior Mezzanine Loan Liens” shall mean the Liens and secured interests created by, and/or in favor of the holder of, the Junior Mezzanine Loan Documents.

“Junior Mezzanine Loan Note” shall mean that certain Junior Mezzanine Promissory Note dated the Closing Date made by Junior Mezzanine Borrower to Junior Mezzanine Lender, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Junior Mezzanine Loan Outstanding Principal Balance” shall mean the “Outstanding Principal Balance” as defined in the Junior Mezzanine Loan Agreement.

“Junior Mezzanine Principal” shall mean a “Principal” as defined in the Junior Mezzanine Loan Agreement.

“JV Entity” shall mean KBS SOR SREF III110 Xxxxxxx, LLC.

“KBS JV Partner” shall mean KBS SOR 110 Xxxxxxx XX, LLC.

“KBS Sponsor” shall mean KBS Strategic Opportunity REIT, Inc.

“Kroll” shall mean Xxxxx Bond Rating Agency, Inc.

“Lease” shall mean 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 Person is granted a possessory interest in, or right to use or occupy all or any portion of any space in the Property by or on behalf of Borrower, and (a) every modification, amendment or other agreement relating to such lease, sublease, subsublease, or other agreement entered into in connection with such lease, sublease, subsublease, or other agreement, and (b) every guarantee of the performance and observance of the covenants, conditions and agreements to be performed and observed by the other party thereto.

“Leasing Agent” shall mean each or all of (as the context may require) (i) Leasing Agent (Savanna), (ii) Leasing Agent (Newmark) or (iii) a Qualified Leasing Agent that is leasing the Property in accordance with the terms and provisions of this Agreement pursuant to a Replacement Leasing Agreement.

“Leasing Agent (Newmark)” shall mean Newmark & Company Real Estate, Inc. d/b/a Newmark Xxxxx Xxxxxx Xxxxx.

“Leasing Agent (Savanna)” shall mean Savanna Commercial Services LLC.

“Leasing Agreement” shall mean each or all of (as the context may require) (i) the Leasing Agreement (Newmark), (ii) the Leasing Agreement (Savanna) and (iii) any Replacement Leasing Agreement.

“Leasing Agreement (Newmark)” shall mean that certain Rental Agency Agreement dated December 11, 2014 between Borrower and Newmark & Company Real Estate, Inc. d/b/a Newmark Xxxxx Xxxxxx Xxxxx.

USActive 36631986.12 -21-

“Leasing Agreement (Savanna)” shall mean that certain Amended and Restated Rental Agency Agreement dated May 2, 2014 between Borrower and Savanna Commercial Services LLC..

“Legal Requirements” shall mean all federal, state, county, municipal and other governmental statutes, laws, rules, orders, regulations, ordinances, judgments, decrees and injunctions, permits or requirements of Governmental Authorities applicable to Borrower or the Property (or any portion thereof or any part thereof), or the administration thereof, or the construction, use, alteration or operation of the Property, or any part thereof, whether now or hereafter enacted and in force, any Environmental Statutes, the Americans with Disabilities Act of 1990, as amended, and all permits, licenses and authorizations and regulations relating thereto, and all covenants, agreements, restrictions and encumbrances contained in any instruments, either of record or known to Borrower, at any time in force affecting Borrower, the Property or any part thereof, including, without limitation, any which may (a) require repairs, modifications or alterations in or to the 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, together with any of its permitted successors and assigns.

“Liabilities” shall have the meaning set forth in Section 9.2 hereof.

“LIBOR” shall mean, with respect to each Interest Period and each Interest Determination Date, the rate per annum (rounded upwards, if necessary, to the nearest 1/1,000 of 1%) calculated by Agent as set forth below:

(a) The rate for deposits in U.S. Dollars for a one‑month period that appears on Reuters Screen LIBOR01 Page (or its equivalent) as of 11:00 a.m., London time, on such Interest Determination Date.

(b) If such rate does not appear on Reuters Screen LIBOR01 Page (or its equivalent) as of 11:00 a.m., London time, on the applicable Interest Determination Date, Agent shall request the principal London office of any four major reference banks in the London interbank market selected by Agent to provide such reference bank’s offered quotation to prime banks in the London interbank market for deposits in U.S. Dollars for a one‑month period as of 11:00 a.m., London time, on such Interest Determination Date in a principal amount of not less than One Million and No/100 Dollars ($1,000,000.00) that is representative for a single transaction in the relevant market at the relevant time. If at least two such offered quotations are so provided, LIBOR shall be the arithmetic mean of such quotations. If fewer than two such quotations are so provided, Agent shall request any three major banks in New York City selected by Agent to provide such bank’s rates for loans in U.S. Dollars to leading European banks for a one‑month period as of 11:00 a.m., New York City time, on such Interest Determination Date in a principal amount not less than One Million and No/100 Dollars ($1,000,000.00) that is representative for a single transaction in the relevant market at the relevant time. If at least two such rates are so provided, LIBOR shall be the arithmetic mean of such rates. If fewer than two rates are so provided, then LIBOR shall be the LIBOR rate used for the immediately preceding Interest Period and Interest Determination Date.

“LIBOR Floor” shall mean one-half of one percent (0.50%).

USActive 36631986.12 -22-

“LIBOR Loan” shall mean the Building Loan at such time as interest thereon accrues at a rate of interest based upon LIBOR in accordance with the terms of this Agreement.

“LIBOR Rate” shall mean with respect to each Interest Period for which interest is calculated using the LIBOR Rate pursuant to Section 2.2 hereof, an interest rate per annum equal to the sum of (a) the quotient of (i) the greater of (A) LIBOR, determined as of the Interest Determination Date applicable to such Interest Period, and (B) the LIBOR Floor divided by (ii) a percentage equal to one hundred percent (100%) minus the Reserve Requirement applicable to the Interest Period, plus (b) the Spread.

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

“Lien” shall mean any mortgage, deed of trust, deed to secure debt, indemnity deed of trust, lien (statutory or otherwise), pledge, hypothecation, easement, restrictive covenant, preference, assignment, security interest, PACE Transaction or any other encumbrance, charge or transfer of, or any portion thereof or any interest therein, or any direct or indirect interest in Borrower, 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.

“Lien Law” shall mean the Lien Law of the State of New York.

“Loan” shall mean, collectively, the Senior Loan and the Building Loan.

“Loan Documents” shall mean, collectively, this Agreement, the Note, the Building Loan Mortgage, the Assignment of Leases, the Environmental Indemnity, the Assignment of Management Agreement, the Guaranty, the Clearing Account Agreement, the Cash Management Agreement, the Certification of Documents, the Closing Certificate, the Assignment of Rate Cap, the Fee Letter, each Assignment of Leasing Agreement, the Assignment of Project Management Agreement and all other documents now or hereafter executed and/or delivered with respect to the Loan.

“Loan to Value Ratio” shall mean, as of the date of its calculation, the ratio of (a) the sum of the Aggregate Outstanding Principal Balance and the Mezzanine Loan Outstanding Principal Balance as of the date of such calculation to (b) the fair market value of the Property, as determined by an Appraisal (if a Securitization has occurred, for purposes of any REMIC provision, counting only real property and excluding any personal property or going concern value).

“Losses” shall have the meaning set forth in Section 3.1(b) hereto.

“Major Lease” shall mean any Lease (and expansions, renewals or modifications of Leases, and any cancellation or termination of any such Leases) of all or any part of the Property and Improvements which: (i) demises any space at the Property, which, either individually, or when taken together with any other Lease with the same Tenant or its Affiliates, and assuming the exercise of all expansion rights and all preferential rights to lease additional space contained in such Lease, in excess of fifty thousand (50,000) rentable square feet, (ii) contains an option or other preferential right to purchase all or any portion of the Property (excluding from this clause (ii), for avoidance

USActive 36631986.12 -23-

of doubt, any preferential right to lease additional space), (iii) is with an Affiliate of Borrower as Tenant, or (iv) is entered into during the continuance of an Event of Default.

“Make Ready Budget” shall have the meaning set forth in Section 2.5.11(b) hereof.

“Make Ready Expenses” shall mean actual out‑of‑pocket expenses incurred by Borrower that are Building Loan Costs in connection with any Make Ready Work performed in accordance with this Agreement; provided, that such expenses do not exceed the amounts set forth in the Make Ready Budget.

“Make Ready Plans” shall have the meaning set forth in Section 2.5.11(b) hereof.

“Make Ready Work” shall mean any work undertaken in connection with the buildout of any space located in the Property (that is not subject to a Lease) in accordance with the applicable Make Ready Plans and Make Ready Budget.

“Management Agreement” shall mean that certain Property Management Agreement entered into by and between Borrower and Manager, dated as of August 3, 2016, or, if the context requires, a Replacement Management Agreement.

“Manager” shall mean Transwestern Commercial Services New York, L.L.C. d/b/a Transwestern, or, if the context requires, a Qualified Manager that is managing the Property in accordance with the terms and provisions of this Agreement pursuant to a Replacement Management Agreement.

“Material Action” shall mean, with respect to Borrower, to consolidate or merge Borrower with or into any Person, or sell all or substantially all of the assets of Borrower (unless such sale results in the repayment, in full, of the Loan), or to institute a Bankruptcy Action or take action in furtherance of any such action, or, to the fullest extent permitted by law, to dissolve or liquidate Borrower.

“Material Adverse Change” shall mean the business, operations, prospects, property, assets, liabilities or financial condition of any applicable Person and each of their subsidiaries, taken as a whole, or in the ability of any such Person to perform its obligations under the Loan Documents has changed in a manner which could impair in any material respect the value of Agent’s and Lender’s security for the Loan or prevent timely repayment of the Loan or otherwise prevent the applicable Person from timely performing any of its material obligations under the Loan Documents, as the case may be, as determined by Agent in its reasonable discretion.

“Material Agreements” shall mean each contract and agreement relating to the ownership, management, development, use, operation, leasing, maintenance, repair or improvement of the Property or any portion thereof, other than the Management Agreement, each Leasing Agreement, the Project Management Agreement, the Leases, the TI Contracts and the Cap-Ex Contracts as to which either (a) there is an obligation of Borrower to pay more than One Million and No/100 Dollars ($1,000,000.00) in the aggregate, or (ii) (A) the term thereof extends beyond one year and (B) there is an obligation of Borrower to pay more than Two Hundred Fifty Thousand and No/100 Dollars

USActive 36631986.12 -24-

in the aggregate; in each case, unless cancelable on thirty (30) days or less notice without requiring the payment of termination fees or payments of any kind.

“Material NYS Insurance Lease Event” shall mean the occurrence of one or both of the following: (a) Insurance Superintendent exercises its option, pursuant to Section 2.5 of the NYS Insurance Lease, to terminate the NYS Insurance Lease effective on or about the eighth anniversary of the NYS Insurance Lease commencement date unless the Insurance Superintendent later rescinds such termination in a manner reasonably acceptable to Agent or (b) at any time Borrower enters into any amendment, modification or partial termination (or any similar agreement) in connection with which the Insurance Superintendent surrenders a portion of the NYS Insurance Leased Space.

“Maturity Date” shall mean the Stated Maturity Date, provided that (a) if Borrower timely and properly exercises the First Extension Option pursuant to Section 2.9, the Maturity Date shall be the First Extended Maturity Date, (b) if Borrower timely and properly exercises the Second Extension Option pursuant to Section 2.9, the Maturity Date shall be the Second Extended Maturity Date, and (c) if Borrower timely and properly exercises the Third Extension Option pursuant to Section 2.9, the Maturity Date shall be the Third Extended Maturity Date, in any case, or such earlier date on which the final payment of principal of the Note becomes due and payable as herein or therein 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 Building Loan.

“Maximum Make Ready Additional Advance Amount” shall have the meaning set forth in Section 2.5.11(a) hereof.

“Maximum Spec Buildout Additional Advance Amount” shall have the meaning set forth in Section 2.5.10(a) hereof.

“Mezzanine Agent” shall mean, collectively, Senior Mezzanine Agent and Junior Mezzanine Agent.

“Mezzanine Borrower” shall mean, collectively, Senior Mezzanine Borrower and Junior Mezzanine Borrower.

“Mezzanine Debt Service” shall mean, collectively, Senior Mezzanine Debt Service and Junior Mezzanine Debt Service.

“Mezzanine Lender” shall mean, collectively, Senior Mezzanine Lender and Junior Mezzanine Lender.

“Mezzanine Loan” shall mean, collectively, the Senior Mezzanine Loan and the Junior Mezzanine Loan.

USActive 36631986.12 -25-

“Mezzanine Loan Agreement” shall mean, collectively, the Senior Mezzanine Loan Agreement and the Junior Mezzanine Loan Agreement.

“Mezzanine Loan Default” shall mean a Senior Mezzanine Loan Default or a Junior Mezzanine Loan Default, as the case may be.

“Mezzanine Loan Documents” shall mean, collectively, the Senior Mezzanine Loan Documents and the Junior Mezzanine Loan Documents.

“Mezzanine Loan Event of Default” shall mean a Senior Mezzanine Loan Default or a Junior Mezzanine Loan Default, as the case may be.

“Mezzanine Loan Liens” shall mean, collectively, the Senior Mezzanine Loan Liens and the Junior Mezzanine Loan Lien.

“Mezzanine Loan Note” shall mean, collectively, the Senior Mezzanine Loan Note and the Junior Mezzanine Loan Note.

“Mezzanine Loan Outstanding Principal Balance” shall mean, collectively, the Senior Mezzanine Loan Outstanding Principal Balance and the Junior Mezzanine Loan Outstanding Principal Balance.

“Mezzanine Principal” shall mean a Senior Mezzanine Principal or a Junior Mezzanine Principal, as the case may be.

“Minimum Leasing Guidelines” shall mean the Minimum Leasing Guidelines set forth on Schedule VII attached hereto.

“Mold” shall mean fungi that reproduce through the release of spores or the splitting of cells or other means, including, but not limited to, mold, mildew, fungi, fungal spores, fragments and metabolites such as mycotoxins and microbial organic compounds.

“Monthly Debt Service Payment Amount” shall have the meaning set forth in Section 2.3.2 hereof.

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

“Morningstar” shall mean Morningstar Credit Ratings, LLC.

“Mortgage Loan Advance Percentage” shall mean 77.446165%.

“MSBNA” shall have the meaning set forth in the introductory paragraph hereto, together with its successors and permitted assigns.

“MSMCH” shall have the meaning set forth in the introductory paragraph hereto, together with its successors and permitted assigns.

USActive 36631986.12 -26-

“Multiemployer Plan” shall mean a multiemployer plan, as defined in Section 4001(a)(3) of ERISA to which Borrower, Mezzanine Borrower, Guarantor or any ERISA Affiliate of any of them is making or accruing an obligation to make contributions or has within any of the preceding five plan years made or accrued an obligation to make contributions.

“Net Operating Income” shall mean, as of any date of determination, the amount calculated by Agent by subtracting (a) Operating Expenses as of such date from (b) the Gross Income from Operations as of such date.

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

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

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

“Note” shall mean, collectively, that certain (a) Building Loan Promissory Note A-1 of even date herewith in the principal amount of up to $5,883,333.00, made by Borrower in favor of Lender, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time, (b) Building Loan Promissory Note A-2 of even date herewith in the principal amount of up to $5,883,333.00, made by Borrower in favor of Lender, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time, (c) Building Loan Promissory Note A-3 of even date herewith in the principal amount of up to $5,883,333.00, made by Borrower in favor of Lender, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time, (d) Building Loan Promissory Note A-4 of even date herewith in the principal amount of up to $2,941,667.00, made by Borrower in favor of Lender, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time, (e) Building Loan Promissory Note A-5 of even date herewith in the principal amount of up to $2,941,667.00, made by Borrower in favor of Lender, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time, and (f) Building Loan Promissory Note A-6 of even date herewith in the principal amount of up to $3,805,163.00, made by Borrower in favor of Lender, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“NY Liquidation Bureau Lease” shall mean those certain renewal terms pertaining to the Superintendent of Financial Services of the State of New York d/b/a New York Liquidation Bureau pursuant to that certain term sheet delivered by Borrower to Agent by email dated March 3, 2017.

“NYS Insurance Lease” shall mean that certain Agreement of Lease, dated as of March 31, 2010, entered into between Borrower, as landlord, and Insurance Superintendent, as tenant, for the NYS Insurance Leased Space.

“NYS Insurance Lease Reserved Amount” shall mean an amount equal to the aggregate unpaid amount actually required to be paid for Approved Leasing Costs pursuant to any replacement lease for that portion of the NYS Insurance Leased Space that has been terminated or surrendered in connection with a Material NYS Insurance Lease Event but in no event less than $85.00 per

USActive 36631986.12 -27-

square foot of the NYS Insurance Leased Space that has been terminated or surrendered in connection with a Material NYS Insurance Lease Event.

“NYS Insurance Leased Space” shall mean that portion of the Property leased by Insurance Superintendent pursuant to the NYS Insurance Lease as of the date hereof.

“Obligations” shall mean, collectively, Borrower’s obligations for the payment of the Aggregate Debt and the performance of the Other Obligations.

“OFAC” shall mean the Office of Foreign Asset Control of the Department of the Treasury of the United States of America.

“Officer’s Certificate” shall mean a certificate delivered to Agent by Borrower which is signed by Xxxxxxxxxxx Xxxxxxx, Xxxxxxxx Xxxxxxxxx or Xxxxxx Xxxxxx, each an authorized officer or signatory of (a) Borrower or the general partner or managing member of Borrower or (b) Manager, in each case, provided Borrower agrees in writing that such certificate shall be deemed to be signed by, and bind, Borrower. Any change to Borrower’s organizational documents to remove Xxxxxxxxxxx Xxxxxxx, Xxxxxxxx Xxxxxxxxx or Xxxxxx Xxxxxx as authorized signatories and have the Officer’s Certificate signed by another authorized signatory shall be subject to the consent of Agent, which consent shall not be unreasonably withheld, conditioned or delayed, except for changes resulting from permitted transfers pursuant to Section 5.2.10(e)(v) or (iv) below.

“Operating Expenses” shall mean, for the twelve (12) month period ending with the most recent calendar month reporting, the total of all expenditures, computed in accordance with GAAP, of whatever kind relating to the operation, maintenance and management of the Property, which expenditures are incurred on a regular monthly or other periodic basis, including without limitation, utilities, ordinary repairs and maintenance, insurance, license fees, Taxes, Other Charges, management fees, payroll and related taxes, computer processing charges, operational equipment or other lease payments as approved by Agent, and other similar costs. Notwithstanding anything to the contrary in the foregoing, Operating Expenses shall (a) not include depreciation, amortization and other non‑cash items, debt service, Capital Expenditures, Approved Capital Expenses, any contributions to any of the Reserve Funds, income taxes or other taxes in the nature of income taxes on sales, or use taxes required to be paid to any Governmental Authority, equity distributions, and other extraordinary and non‑recurring items, and legal or other professional services fees and expenses unrelated to the operation of the Property, (b) be increased to reflect known increases in Property Taxes and Insurance Premiums that are anticipated, in Agent’s reasonable determination, to occur within the succeeding twelve (12) month period, and (c) include the greater of (i) the actual fees paid to the Manager pursuant to the Management Agreement for such period of determination or (ii) 0.9% of gross income from the Property.

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

USActive 36631986.12 -28-

“Other Connection Taxes” shall mean with respect to any Lender, Taxes imposed as a result of a present or former connection between such Lender and the jurisdiction imposing such Tax (other than connections arising from such Lender having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).

“Other Entities” shall have the meaning set forth in Section 10.29.

“Other Obligations” shall mean (a) the performance of all obligations of Borrower contained herein; (b) the performance of each obligation of Borrower contained in any other Loan Document; (c) the payment of all out-of-pocket costs, expenses, legal fees and liabilities incurred by Agent or Lender in connection with the enforcement of any of Agent’s or Lender’s rights or remedies under the Loan Documents, or any other instrument, agreement or document which evidences or secures any other Obligations or collateral therefor, whether now in effect or hereafter executed; and (d) the payment, performance, discharge and satisfaction of all other liabilities and obligations of Borrower to Agent and Lender, whether now existing or hereafter arising, direct or indirect, absolute or contingent, and including, without limitation, each liability and obligation of Borrower under any one or more of the Loan Documents and any amendment, extension, modification, replacement or recasting of any one or more of the instruments, agreements and documents referred to herein or therein or executed in connection with the transactions contemplated hereby or thereby.

“Other Taxes” shall have the meaning set forth in Section 2.10.2 hereof.

“Outstanding Principal Balance” shall mean, as of any date, the outstanding principal balance of the Building Loan.

“PACE Transaction” shall have the meaning ascribed to such term in the definition of “Indebtedness”.

“Participant Register” shall have the meaning set forth in Section 9.1(c) hereof.

“Payment Date” shall mean, commencing with the First Payment Date, the seventh (7^th) day of each calendar month during the term of the Loan until and including the Maturity Date or, for purposes of making payments hereunder, but not for purposes of calculating Interest Periods, if such day is not a Business Day, the immediately preceding Business Day. The Payment Date shall be subject to adjustment as described in Section 2.3.2 below.

“Pension Plan” shall mean any “pension plan” (as defined in Section 3(2) of ERISA), other than a Multiemployer Plan, subject to Title IV of ERISA and/or Section 412 of the Code to which Borrower, Mezzanine Borrower, Guarantor or any ERISA Affiliate of any of them is making or accruing an obligation to make contributions or has within any of the preceding five plan years made or accrued an obligation to make contributions or otherwise has any liability with respect thereto.

USActive 36631986.12 -29-

“Permitted Encumbrances” shall mean, collectively (a) the Liens and security interests created by the Loan Documents, the Senior Loan Documents and the Mezzanine Loan Documents, (b) all Liens, encumbrances and other matters disclosed in “Schedule B‑I” of the Title Insurance Policy (or which have been omitted from the Title Insurance Policy based on the Title Company’s underwriting), (c) the Liens, if any, for Taxes imposed by any Governmental Authority which are not yet delinquent or which are being contested in accordance with the terms of this Agreement and the other Loan Documents (but excluding any Liens securing any PACE Transaction or similar indebtedness with respect to Borrower and/or the Property, including, without limitation, if such loans or indebtedness made or otherwise provided by any Governmental Authority and/or secured or repaid (directly or indirectly) by any taxes or similar assessments), (d) such other title and survey exceptions as Agent has approved or may approve in writing in Agent’s sole discretion, (e) the rights of Tenants under Leases, (f) trade and operational debt and equipment leases incurred and entered into in accordance with this Agreement and (g) any workers’, mechanics’ or other similar Liens on the Property provided that any such Lien is being contested in accordance with the terms of this Agreement and the other Loan Documents, solely to the extent that the items set forth in clauses (c), (f) and (g) of this definition, do not, in the aggregate, materially adversely affect the value or use of the Property or any portion thereof or Borrower’s ability to repay the Loan.

“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 the Servicer or the trustee under any Securitization, if any has occurred, 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) obligations of, or 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;

(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 (i) “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 One Billion and No/100 Dollars ($1,000,000,000.00), (ii) in one of the following Xxxxx’x 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 such other ratings as confirmed by Agent in its sole discretion (and in a Rating Agency Confirmation if a Securitization has occurred);

USActive 36631986.12 -30-

(d) commercial paper rated (i) “A–1+” (or the equivalent) by S&P and having a maturity of not more than 90 days and (ii) in one of the following Xxxxx’x 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”;

(e) any money market funds that (i) has substantially all of its assets invested continuously in the types of investments referred to in subparagraph (a) above, (ii) has net assets of not less than Five Billion and No/100 Dollars ($5,000,000,000.00), and (iii) has the highest rating obtainable from S&P and Xxxxx’x; and

(f) such other investments as to which each Approved Rating Agency shall have delivered a Rating Agency Confirmation (if a Securitization has occurred) and to which Agent shall have approved in its sole discretion.

Notwithstanding the foregoing, “Permitted Investments” (i) shall exclude any security with the S&P’s “r” symbol (or any other Approved 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 one hundred and twenty percent (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 Transfer” shall mean any transfer expressly permitted pursuant to Section 5.2.10(d).

“Person” shall mean any individual, corporation, partnership, joint venture, limited liability company, estate, trust, unincorporated association, any Governmental Authority, and any fiduciary acting in such capacity on behalf of any of the foregoing.

“Personal Property” shall have the meaning set forth in the granting clause(s) of the Building Loan Mortgage.

USActive 36631986.12 -31-

“Pfandbrief Pledge” shall have the meaning set forth in Section 9.5 hereof.

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

“Prepayment Premium” shall mean an amount equal to the present value, discounted at LIBOR on the most recent Interest Determination Date with respect to any period when the Loan is a LIBOR Loan (or, with respect to any period when the Loan is a Prime Rate Loan, discounted at an interest rate that Agent believes, in its judgment, would equal LIBOR on such Interest Determination Date if LIBOR was then available) of all future installments of interest which would have been due hereunder through and including the Prepayment Premium Date, on the portion of the outstanding principal balance of the Loan being prepaid as if interest accrued on such portion of the principal balance being prepaid at an interest rate per annum equal to the Spread plus, if LIBOR is less than the LIBOR Floor as of such Interest Determination Date, the difference between (a) the LIBOR Floor and (b) LIBOR on such Interest Determination Date with respect to any period when the Loan is a LIBOR Loan (or, with respect to any period when the Loan is a Prime Rate Loan, an interest rate that Agent believes, in its judgment, would equal LIBOR on such Interest Determination Date if LIBOR was then available). The Prepayment Premium shall be reasonably calculated by Agent and shall be final absent manifest error.

“Prepayment Premium Date” shall mean the eighteenth (18^th) Payment Date (but including the First Payment Date).

“Prime Rate” shall mean the annual rate of interest publicly announced by Xxxxx Fargo Bank, N.A. in San Francisco, California, as its prime rate, as such rate shall change from time to time. If Xxxxx Fargo Bank, N.A. ceases to announce a prime rate, Prime Rate shall mean the rate of interest published in The Wall Street Journal from time to time as the “Prime Rate.” If more than one “Prime Rate” is published in The Wall Street Journal for a day, the average of such “Prime Rates” shall be used, and such average shall be rounded up to the nearest one hundredth of one percent (0.01%). If The Wall Street Journal ceases to publish the “Prime Rate,” Agent 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 quasigovernmental body, then Agent shall select a comparable interest rate index that is generally used in the commercial real estate lending industry for such purpose.

“Prime Rate Loan” shall mean the Loan at such time as interest thereon accrues at a rate of interest based upon the Prime Rate in accordance with the terms of this Agreement.

“Prime Rate Spread” shall mean the difference (expressed as the number of basis points) between (a) the Interest Rate on the date LIBOR was last applicable to the Loan and (b) the Prime Rate on the date that LIBOR was last applicable to the Loan; provided, however, in no event shall such difference be a negative number.

“Principal” shall mean the Special Purpose Entity that is the general partner of Borrower if Borrower is a limited partnership, or manager or managing member of Borrower if Borrower is a limited liability company other than a Delaware single‑member limited liability company that satisfies the requirements of a Special Purpose Entity.

USActive 36631986.12 -32-

“Prohibited Transaction” shall mean any action or transaction which would cause any obligation, or action taken or to be taken, hereunder (or the exercise by Agent or Lender of any of its rights under the Note, this Agreement or the other Loan Documents) to be a non‑exempt (under a statutory or administrative class exemption) prohibited transaction under ERISA or Section 4975 of the Code.

“Prohibited Transferee” shall mean the Persons set forth in an email from Xxx Xxxxx (XXxxxx@xxxxxxxxxxx.xxx) to Xxxxxx Xxxxxx (Xxxxxx.Xxxxxx@Xxxxxxxxxx.xxx) and Xxxxxxxx X. Xxxxxxx (Xxxxxxxx.X.Xxxxxxx@xxxxxxxxxxxxx.xxx), dated March 2, 2017 and sent at 6:50 PM.

“Project Manager” shall mean, as the context requires, Project Manager (Savanna) and any replacement project manager with which Borrower enters into a Project Management Agreement in accordance with the terms hereof.

“Project Manager (Savanna)” shall mean Savanna Project Management, LLC.

“Project Management Agreement” shall mean the Project Management Agreement (Savanna) or any replacement project management agreement entered into by and between Borrower and a Project Manager in accordance with the terms hereof, pursuant to which Project Manager is to provide management of the capital improvement projects and other services with respect to the Property, as the context may require.

“Project Management Agreement (Savanna)” shall mean that certain project management agreement entered into by and between Borrower and a Project Manager (Savanna) dated as of May 2, 2014.

“Property” shall mean each parcel of real property, the Improvements thereon and all personal property owned by Borrower and encumbered by the Building Loan Mortgage, together with all rights pertaining to such property and Improvements, as more particularly described in the granting clause(s) of the Building Loan Mortgage and referred to therein as the “Property”.

“Property Condition Report” shall mean that certain Property Condition Report, dated February 24, 2017, prepared by AEI Consultants as AEI Project No. 368548.

“Property Taxes” shall mean all taxes, assessments, water rates or sewer rents, now or hereafter levied or assessed or imposed against (a) the Property or any part thereof, together with all interest and penalties thereon and (b) the rents, issues, income or profits thereof or upon the lien or estate hereby created, whether any or all of said taxes, assessments or charges be levied directly or indirectly or as excise taxes or ad valorem real estate or personal property taxes or as income taxes.

“Provided Information” shall mean any and all financial and other information provided at any time by, or on behalf of, Borrower, Mezzanine Borrower, or Guarantor with respect to the Property, Borrower, or Guarantor.

USActive 36631986.12 -33-

“Qualified Leasing Agent” shall mean either (a) Leasing Agent (Savanna), (b) Transwestern, (c) Xxxxx Lang LaSalle, (d) CBRE, (e) Leasing Agent (Newmark) or (f) in the reasonable judgment of Agent, a Person that is a reputable and experienced leasing broker (which may be an Affiliate of Borrower) possessing experience in leasing properties similar in size, scope, use and value as the Property, provided, that, if such Person is an Affiliate of Borrower, Borrower shall have obtained an Additional Insolvency Opinion in form acceptable to Agent, and, in each case, such Person shall have entered into a Replacement Leasing Agreement and an assignment of leasing agreement in the same form and substance as the Assignment of Leasing Agreement.

“Qualified Manager” shall mean either (a) Manager, (b) Xxxxxxx & Xxxxxxxxx, (c) Xxxxx Xxxx LaSalle, (d) Newmark Xxxxx Xxxxxx Xxxxx, (e) CBRE or (f) in the reasonable judgment of Agent, a Person that is a reputable and experienced management organization (which may be an Affiliate of Borrower) possessing experience in managing properties similar in size, scope, use and value as the Property, provided, that if such Person is an Affiliate of Borrower, Borrower shall have obtained an Additional Insolvency Opinion in form acceptable to Agent, and, in each case, such Person shall have entered into a Replacement Management Agreement and an assignment of management agreement in the same form and substance as the Assignment of Management Agreement.

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

“Rating Agencies” shall mean each of S&P, Xxxxx’x, Fitch, Kroll, DBRS, Morningstar and Realpoint or any other nationally recognized statistical rating agency which has assigned a rating to the Securities, if any.

“Rating Agency Confirmation” shall mean a written affirmation from a Rating Agency that the credit rating of the Securities issued by such Rating Agency 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.

“Realpoint” shall mean Realpoint, LLC, a Pennsylvania limited liability company.

“Recipient” shall mean the Agent and any Lender, as applicable.

“Register” shall have the meaning set forth in Section 9.1(b) hereof.

“Regulation AB” shall mean Regulation AB under the Securities Act and the Exchange Act, as such Regulation may be amended from time to time.

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

“Related Property” shall mean a parcel of real property, together with improvements thereon and personal property related thereto, that is “related” within the meaning of the definition of Significant Obligor, to the Property.

USActive 36631986.12 -34-

“Release” shall mean, with respect to any Hazardous Substance, any release, deposit, discharge, emission, leaking, leaching, spilling, seeping, migrating, injecting, pumping, pouring, emptying, escaping, dumping, disposing (including the abandonment or discharging of barrels, containers or other closed receptacles containing Hazardous Substances) into the environment or other movement of Hazardous Substances.

“Remediation” shall mean any response, remedial, removal, or corrective action; any activity to clean up, detoxify, decontaminate, contain or otherwise remediate any Hazardous Substance; any actions to prevent, cure or mitigate any Release of any Hazardous Substance; any action to comply with any Environmental Statutes or with any permits issued pursuant thereto; any inspection, investigation, study, monitoring, assessment, audit, sampling and testing, or laboratory or other analysis, or evaluation relating to any Hazardous Substances or to anything referred to herein.

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

“Rents” shall mean all rents (including additional rents of any kind and percentage rents), rent equivalents, moneys payable as damages (including payments by reason of the rejection of a Lease in a Bankruptcy Action) or in lieu of rent or rent equivalents, royalties (including, without limitation, all oil and gas or other mineral royalties and bonuses), income, receivables, receipts, revenues, deposits (including security, utility and other deposits), accounts, cash, issues, profits, charges for services rendered, and other payments and consideration of whatever form or nature received by or paid to or for the account of or benefit of Borrower from any and all sources arising from or attributable to the Property or any portion thereof, and the Improvements, including charges for oil, gas, water, steam, heat, ventilation, air‑conditioning, electricity, license fees, maintenance fees, charges for Property Taxes, operating expenses or other amounts payable to Borrower (or for the account of Borrower), revenues from telephone services, vending, and all receivables, customer obligations now existing or hereafter arising or created out of the sale, lease, sublease, license, concession or other grant of the right of the use and occupancy of the Property (or any portion thereof) or rendering of services by Borrower, Manager, or any of their respective agents or employees and proceeds, if any, from business interruption or other loss of income insurance.

“Repayment Date” shall mean the date of a prepayment of the Loan pursuant to the provisions of Section 2.4 hereof.

“Replacement Assignment of Rate Cap” shall have the meaning set forth in Section 2.8.3(b) hereof.

“Replacement Interest Rate Cap Agreement” shall mean an interest rate cap agreement from an Approved Counterparty with terms that are the same in all material respects as the terms of the Interest Rate Cap Agreement except that the same shall be effective as of (a) in connection with a replacement pursuant to Section 2.8.3(c) following a downgrade, withdrawal or qualification of the long‑term unsecured debt rating of the Counterparty, the date required in Section 2.8 or (b) in connection with a replacement (or extension of the then‑existing Interest Rate Cap Agreement) in connection with an extension of the Maturity Date pursuant to Section 2.9, the date required in

USActive 36631986.12 -35-

Section 2.9; provided that to the extent any such interest rate cap agreement does not meet the foregoing requirements, a “Replacement Interest Rate Cap Agreement” shall be such interest rate cap agreement approved in writing by Agent (such approval not to be unreasonably withheld, conditioned or delayed), and if the Loan or any portion thereof is included in a Securitization, each of the Rating Agencies with respect thereto.

“Replacement Leasing Agreement” shall mean, collectively, (a) either (i) a leasing agreement with a Qualified Leasing Agent substantially in the same form and substance as the Leasing Agreement, or (ii) a leasing agreement with a Qualified Leasing Agent which is reasonably acceptable to Agent in form and substance; and (b) an assignment of leasing agreement and subordination of leasing commissions substantially in the form then used by Agent (or of such other form and substance reasonably acceptable to Agent), executed and delivered to Agent by Borrower and such Qualified Leasing Agent at Borrower’s expense.

“Replacement Management Agreement” shall mean, collectively, (a) either (i) a management agreement with a Qualified Manager substantially in the same form and substance as the Management Agreement, or (ii) a management agreement with a Qualified Manager which is reasonably acceptable to Agent in form and substance; and (b) an assignment of management agreement and subordination of management fees substantially in the form then used by Agent (or of such other form and substance reasonably acceptable to Agent), executed and delivered to Agent by Borrower and such Qualified Manager at Borrower’s expense.

“Replacement Reserve Account” shall have the meaning set forth in Section 7.2.1 hereof.

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

“Replacement Reserve Monthly Deposit” shall mean the amount set forth on Schedule IV.

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

“Required Records” shall have the meaning set forth in Section 5.1.11(j) hereof.

“Reserve Accounts” shall mean, collectively, the Tax and Insurance Escrow Account, the Replacement Reserve Account, the Rollover Reserve Account, the Excess Cash Reserve Account, the Net Proceeds Account and any other escrow or reserve account established pursuant to the Loan Documents.

“Reserve Funds” shall mean, collectively, the Tax and Insurance Escrow Funds, the Replacement Reserve Funds, the Rollover Reserve Funds, the Excess Cash Reserve Funds and any other escrow or reserve fund established pursuant to the Loan Documents.

“Reserve Requirements” shall mean with respect to any Interest Period, the maximum rate of all reserve requirements (including, without limitation, all basic, marginal, emergency, supplemental, special or other reserves and taking into account any transitional adjustments or other schedule changes in reserve requirements during the Interest Period) which are imposed under Regulation D on eurocurrency liabilities (or against any other category of liabilities which includes

USActive 36631986.12 -36-

deposits by reference to which LIBOR is determined or against, any category of extensions of credit or other assets which includes loans by a non-United States office of a depository institution to United States residents or loans which charge interest at a rate determined by reference to such deposits) during such Interest Period and which are applicable to member banks of the Federal Reserve System with deposits exceeding one billion dollars, but without benefit or credit of proration, exemptions or offsets that might otherwise be available from time to time under Regulation D. The determination of the Reserve Requirements shall be based on the assumption that the applicable Lender funded one hundred percent (100%) of the Loan in the interbank eurodollar market. In the event of any change in the rate of such Reserve Requirements under Regulation D during the applicable Interest Period, or any variation in such requirements based upon amounts or kinds of assets or liabilities, or other factors, including, without limitation, the imposition of Reserve Requirements, or differing Reserve Requirements, on one or more but not all of the holders of the Loan or any participation therein, Agent may use any reasonable averaging and/or attribution methods which it deems appropriate and practical for determining the rate of such Reserve Requirements which shall be used in the computation of the Reserve Requirements. Agent’s reasonable computation of same shall be final absent manifest error.

“Restoration” shall mean the repair and restoration of the Property or any portion thereof after a Casualty or Condemnation as nearly as possible to the condition the Property (or such portion thereof) was in immediately prior to such Casualty or Condemnation, with such alterations as may be approved by Agent in its sole discretion.

“Restricted Party” shall mean, collectively (a) Borrower, Principal, Mezzanine Borrower, Mezzanine Principal, Guarantor and any Affiliated Manager, and (b) any partner, member, non‑member manager, direct or indirect legal owner, agent or employee of Borrower, Mezzanine Borrower, Guarantor, any Affiliated Manager or any non‑member manager.

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

“RICO” shall mean the Racketeer Influenced and Corrupt Organizations Act.

“Rollover Reserve Account” shall have the meaning set forth in Section 7.3.1(a) hereof.

“Rollover Reserve Funds” shall have the meaning set forth in Section 7.3.1(a) hereof.

“S&P” shall mean Standard & Poor’s Ratings Group, a division of the McGraw‑Hill Companies.

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

“Savanna JV Partner” shall mean SREF III 110 Xxxxxxx XX, LLC.

“Savanna Sponsor” shall mean SREF III REIT, L.P.

“Second Extended Maturity Date” shall have the meaning set forth in Section 2.9.1 hereof.

USActive 36631986.12 -37-

“Second Extension Notice” shall have the meaning set forth in Section 2.9.1 hereof.

“Second Extension Option” shall have the meaning set forth in Section 2.9.1 hereof.

“Securities” shall have the meaning set forth in Section 9.1(a) hereof.

“Securities Act” shall mean the Securities Act of 1933, as the same shall be amended from time to time.

“Securitization” shall have the meaning set forth in Section 9.1(a) hereof.

“Section 22 Affidavit” shall mean an affidavit of the Borrower attached hereto as Schedule XII and made pursuant to and in compliance with Section 22 of the Lien Law.

“Senior Loan” shall mean the loan being made by Lender to Borrower pursuant to the Senior Loan Agreement in the principal amount of up to the Senior Loan Amount.

“Senior Loan Agreement” shall mean that certain Senior Loan Agreement dated as of the date hereof, among Agent, Lender and Borrower, as the same may be amended, restated, supplemented or otherwise modified from time to time.

“Senior Loan Amount” shall mean TWO HUNDRED FIVE MILLION AND NO/100 DOLLARS ($205,000,000.00).

“Senior Loan Debt Service” shall mean, with respect to any particular period of time, scheduled principal and interest payments due under the Senior Loan Documents.

“Senior Loan Documents” shall have the meaning set forth in the Senior Loan Agreement.

“Senior Loan Outstanding Principal Balance” shall mean the “Outstanding Principal Balance” as defined in the Senior Loan Agreement.

“Senior Mezzanine Agent” shall mean Xxxxxx Xxxxxxx Mortgage Capital Holdings, a New York limited liability company, together with its successors and assigns.

“Senior Mezzanine Borrower” shall mean 110 Xxxxxxx Mezz III, LLC, a Delaware limited liability company.

“Senior Mezzanine Debt Service” shall mean “Debt Service” as defined in the Senior Mezzanine Loan Agreement.

“Senior Mezzanine Lender” shall mean Xxxxxx Xxxxxxx Mortgage Capital Holdings, a New York limited liability company, together with its successors and assigns.

“Senior Mezzanine Loan” shall mean the mezzanine loan made on the Closing Date by Senior Mezzanine Lender to Senior Mezzanine Borrower in the aggregate principal amount set forth in the Senior Mezzanine Loan Note.

USActive 36631986.12 -38-

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

“Senior Mezzanine Loan Default” shall mean a “Default” as defined in the Senior Mezzanine Loan Agreement.

“Senior Mezzanine Loan Documents” shall mean the “Loan Documents” as defined in the Senior Mezzanine Loan Agreement.

“Senior Mezzanine Loan Event of Default” shall mean an “Event of Default” as defined in the Senior Mezzanine Loan Agreement.

“Senior Mezzanine Loan Liens” shall mean the Liens and secured interests created by, and/or in favor of the holder of, the Senior Mezzanine Loan Documents.

“Senior Mezzanine Loan Note” shall mean that certain Senior Mezzanine Promissory Note dated the Closing Date made by Senior Mezzanine Borrower to Senior Mezzanine Lender, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Senior Mezzanine Loan Outstanding Principal Balance” shall mean the “Outstanding Principal Balance” as defined in the Senior Mezzanine Loan Agreement.

“Senior Mezzanine Principal” shall mean a “Principal” as defined in the Senior Mezzanine Loan Agreement.

“Servicer” shall have the meaning set forth in Section 9.3 hereof.

“Servicing Agreement” shall have the meaning set forth in Section 9.3 hereof.

“Severed Loan Documents” shall have the meaning set forth in Section 8.1.1(c) hereof.

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

“Significant Obligor” shall have the meaning set forth in Item 1101(k) of Regulation AB under the Securities Act.

“Spec Buildout Budget” shall have the meaning set forth in Section 2.5.10(b) hereof.

“Spec Buildout Expenses” shall mean actual out‑of‑pocket expenses incurred by Borrower that are Building Loan Costs in connection with any Spec Buildout Work; provided, that such expenses do not exceed the amounts set forth in the applicable Spec Buildout Budget.

“Spec Buildout Lease” shall have the meaning set forth in Section 2.5.10(a) hereof.

“Spec Buildout Plans” shall have the meaning set forth in Section 2.5.10(b) hereof.

USActive 36631986.12 -39-

“Spec Buildout Work” shall mean any work undertaken in connection with the speculative buildout of any tenant space located in the Property (without being subject to an existing Lease) in accordance with the applicable Spec Buildout Plans and Spec Buildout Budget.

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

(a) was, is and will be organized solely for the purpose of (i) in the case of Borrower, acquiring, developing, owning, holding, selling, leasing, transferring, exchanging, managing and operating the Property (and no other property), entering into this Agreement with Agent and Lender and performing its obligations under the Loan Documents, refinancing the Property in connection with a permitted repayment of the Loan, and transacting lawful business that is incident, necessary and appropriate to accomplish the foregoing or (ii) in the case of Principal, acting as a general partner of the limited partnership that owns Borrower or member of the limited liability company that owns Borrower, as applicable;

(b) has not been, is not, and will not be engaged, in any business unrelated to (i) in the case of Borrower, the acquisition, development, ownership, management or operation of the Property and (ii) in the case of Principal, acting as general partner of the limited partnership that owns Borrower, or acting as a member of the limited liability company that owns Borrower, as applicable;

(c) has not had, does not have, and will not have, any assets other than (i) in the case of Borrower, the Property and incidental personal property necessary for the ownership and operation of the Property or (ii) in the case of each of Principal, its partnership interest in the limited partnership or the membership interest in the limited liability company that owns Borrower of the Property, as applicable, or acts as the general partner or managing member thereof, as applicable;

(d) has not engaged in, sought or consented to, and will not engage in, seek or consent to, any dissolution, winding up, liquidation, consolidation, merger, sale of all or substantially all of its assets (unless such sale will result in the repayment in full of the Loan), transfer of partnership or membership interests (if such entity is a general partner in a limited partnership or a member in a limited liability company) or amendment of its limited partnership agreement, articles of incorporation, articles of organization, certificate of formation or operating agreement (as applicable) with respect to the matters set forth in this definition, without the prior written consent of Agent;

(e) if such entity is a limited partnership, has had, now has, and will have as its only general partners, Special Purpose Entities each of which (i) is a corporation or single‑member Delaware limited liability company or multimember Delaware limited liability company treated as a single member limited liability company that complies with the requirements set forth in subparagraph (h) hereof, (ii) has two (2) Independent Directors, and (iii) holds a direct interest as general partner in the limited partnership of not less than one‑half‑of‑one percent (0.5%) (or one‑tenth‑of‑one percent (0.1%,) if the limited partnership is a Delaware entity);

USActive 36631986.12 -40-

(f) if such entity is a corporation, has had, now has and will have at least two (2) Independent Directors, and has not caused or allowed, and will not cause or allow, the board of directors of such entity to take any Bankruptcy Action or any other Material Action either with respect to itself or, if the corporation is a Principal, with respect to Borrower or any action requiring the unanimous affirmative vote of one hundred percent (100%) of the members of its board of directors unless the two (2) Independent Directors shall have participated in such vote and shall have voted in favor of such action;

(g) if such entity is a limited liability company with more than one member, has had, now has and will have at least one member that is a Special Purpose Entity (i) that is a corporation (ii) that has at least two (2) Independent Directors, and (iii) that directly owns at least one‑half‑of‑one percent (0.5%) of the equity` of the limited liability company (or one‑tenth-of-one percent (0.1%) if the limited liability company is a Delaware entity);

(h) if such entity is a limited liability company with only one member, has been, now is, and will be a limited liability company organized in the State of Delaware that (i) has at least two (2) Independent Directors, (ii) has not caused or allowed, and will not cause or allow the members or managers of such entity to take any Bankruptcy Action or any other Material Action, either with respect to itself or, if the company is a Principal, with respect to Borrower, in each case unless the two (2) Independent Directors then serving as managers of the company shall have consented in writing to such action, and (iii) has and shall have either (x) a member which owns no economic interest in the company, has signed the company’s limited liability company agreement and has no obligation to make capital contributions to the company, or (y) two (2) natural persons or one entity that is not a member of the company, that has signed its limited liability company agreement and that, under the terms of such limited liability company agreement becomes a member of the company immediately prior to the withdrawal or dissolution of the last remaining member of the company;

(i) has been, is and intends to remain solvent and has paid and intends to pay its debts and liabilities from its then available assets (including a fairly allocated portion of any personnel and overhead expenses that it shares with any Affiliate) as the same shall become due, and has maintained 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 (provided, however, the forgoing shall not require any direct or indirect shareholder, partner, or member of such entity, as applicable, to make additional capital contributions to such entity);

(j) has not failed, and will not fail, to correct any known misunderstanding regarding the separate identity of such entity and has not and shall not identify itself as a division of any other Person;

(k) has maintained and will maintain its accounts, books and records separate from any other Person and has filed and will file its own Tax returns, except to the extent that it is treated as a Disregarded Entity and is not required to file Tax returns under applicable law;

(l) has maintained and will maintain its own records, books, resolutions and agreements;

USActive 36631986.12 -41-

(m) (i) has not commingled, and will not commingle, its funds or assets with those of any other Person and (ii) other than as provided in the Cash Management Agreement, has not participated and will not participate in any cash management system with any other Person;

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

(o) has conducted and shall conduct its business solely in its own name or in a name franchised or licensed to it by an entity other than an Affiliate of itself or of Borrower, except for business conducted on behalf of itself by another Person under a business management services agreement that is on commercially reasonable terms, so long as the manager, or equivalent thereof, under such business management services agreement holds itself out as an agent of Borrower;

(p) has maintained and will maintain its books, bank accounts, balance sheets, financial statements, accounting records and other entity documents separate from any other Person and has not permitted, and will not permit, its assets to be listed as assets on the financial statement of any other entity except as permitted by GAAP or so‑called “tax basis accounting” (“Tax Basis Accounting”), in each case, consistently applied; provided, however, that appropriate notation shall be made on any such annual audited consolidated statements (but not required on the monthly and quarterly unaudited consolidated statements) to indicate its separateness from such Affiliate and to indicate that its assets and credit are not available to satisfy the debt and other obligations of such Affiliate or any other Person and such assets shall be listed on its own separate balance sheet;

(q) has paid and shall pay its own liabilities and expenses, including the salaries of its own employees (if any), solely out of its own funds and assets (but only to the extent such funds and assets are available), and has maintained and will maintain a sufficient number of employees (if any) in light of its contemplated business operations (provided, however, the foregoing shall not require any shareholder, partner or member of such entity, as applicable, to make additional capital contributions to such entity);

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

(s) has had no and will have no Indebtedness (including loans, whether or not such loans are evidenced by a written agreement) other than (I) with respect to Borrower, (i) the Loan, (ii) unsecured trade and operational debt incurred, or equipment leases entered into, in the ordinary course of business relating to the ownership and operation of the Property and the routine administration of Borrower, in each case in aggregate amounts not to exceed three percent (3%) of the original principal amount of the Loan, in the aggregate, which liabilities are not more than sixty (60) days past the date incurred, are not evidenced by a note and are paid when due (subject to notice and cure periods and permitted contests), and which amounts are normal and reasonable under the circumstances, and (iii) such other liabilities that are expressly permitted pursuant to this Agreement and (II) with respect to Principal, unsecured operational debt incurred in the ordinary course of business relating to the ownership and operation of the Borrower and the routine administration of Principal in amounts not to exceed $25,000, in the aggregate, which liabilities are not more than sixty (60) days past the date incurred, are not evidenced by a note and are paid when

USActive 36631986.12 -42-

due (subject to notice and cure periods and permitted contests), and which amounts are normal and reasonable under the circumstances;

(t) has not assumed or guaranteed or become obligated for, and will not assume or guarantee or become obligated for, the debts of any other Person and has not held out and will not hold out its credit as being available to satisfy the obligations of any other Person;

(u) has not acquired and will not acquire obligations or securities of its partners, members or shareholders or any other Affiliate;

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

(w) has maintained and used, now maintains and uses, and will maintain and use, separate stationery, invoices and checks bearing its name, which stationery, invoices and checks utilized by the Special Purpose Entity or utilized to collect its funds or pay its expenses have borne, and shall bear its own name and have not borne and shall not bear the name of any other entity unless such entity is clearly designated as being the Special Purpose Entity’s agent;

(x) except for any prior loans secured by the Property each of which has been repaid in full, has not pledged and will not pledge its assets to secure the obligations of any other Person;

(y) has held itself out and identified itself, and will hold itself out and identify itself, as a separate and distinct entity under its own name or in a name franchised or licensed to it by an entity other than an Affiliate of Borrower and not as a division or part of any other Person, except for services rendered under a business management services agreement with an Affiliate that complies with the terms contained in subparagraph (z) of this definition, so long as the manager, or equivalent thereof, under such business management services agreement holds itself out as an agent of Borrower;

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

(aa) has not made and will not make loans to any Person or hold evidence of indebtedness issued by any other Person (other than cash and investment‑grade securities issued by an entity that is not an Affiliate of or subject to common ownership with such entity) other than security deposits relating to Leases;

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

(cc) has not entered into or been a party to, and will not enter into or be a party to, any transaction with its partners, members, shareholders or Affiliates except (i) for capital contributions and distributions permitted under the terms of its organizational documents and properly reflected

USActive 36631986.12 -43-

on its books and records and (ii) in the ordinary course of its business and on terms which are commercially reasonable and are no less favorable to it than would be obtained in a comparable arm’s‑length transaction with an unrelated third party;

(dd) reserved;

(ee) has not had and shall not have any obligation to, and has not indemnified 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;

(ff) if such entity is a corporation, shall consider the interests of its creditors in connection with all corporate actions;

(gg) does not and will not have any of its obligations guaranteed by any Affiliate except as provided in the Loan Documents with respect to the Guaranty and the Environmental Indemnity (or documents evidencing prior loans secured by the Property, each of which has been repaid in full);

(hh) has conducted and shall conduct its business so that each of the assumptions made about it and each of the facts stated about it in the Insolvency Opinion are true; and

(ii) has complied and will comply with all of the terms and provisions contained in its organizational documents and cause statements of facts contained in its organizational documents to be and to remain true and correct, in each case to the extent necessary to maintain its separate existence;

(jj) has not permitted and shall not permit any Affiliate or constituent party independent access to its bank accounts except as permitted under the Loan Documents; and.

(kk) in the case of Borrower, has not and shall not form, acquire or hold any subsidiary or own any equity interest in any other entity.

“Sponsor” shall mean, collectively, Savanna Sponsor and KBS Sponsor.

“Spread” shall have the meaning assigned to such term in the Senior Loan Agreement.

“State” shall mean the State or Commonwealth in which the Property or any part thereof is located.

“Stated Maturity Date” shall mean March 7, 2019.

“Strike Price” shall mean three percent (3.00%) per annum.

“Subaccounts” shall have the meaning set forth in Section 2.7.2(a) hereof.

USActive 36631986.12 -44-

“Survey” shall mean one or more survey(s) of the Property prepared by a surveyor licensed in the State and satisfactory to Agent and the company or companies issuing the Title Insurance Policy, and containing a certification of such surveyor satisfactory to Agent.

“Tax and Insurance Escrow Account” shall have the meaning set forth in Section 7.1.1 hereof.

“Tax and Insurance Escrow Funds” shall have the meaning set forth in Section 7.1.1 hereof.

“Tax Basis Accounting” shall have the meaning assigned to such term in subsection (p) of the definition of “Special Purpose Entity” contained in this Section 1.1.

“Taxes” shall mean all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto. In no event shall any PACE Transaction be considered Taxes for purposes of this Agreement.

“Tenant” shall mean the lessee of all or any portion of the Property under a Lease.

“Terrorism Insurance” shall have the meaning set forth in Section 6.1(a)(xi) hereof.

“Third Extended Maturity Date” shall have the meaning set forth in Section 2.9.1 hereof.

“Third Extension Notice” shall have the meaning set forth in Section 2.9.1 hereof.

“Third Extension Option” shall have the meaning set forth in Section 2.9.1 hereof.

“Threshold Amount” shall have the meaning set forth in Section 5.1.22 hereof.

“TI Contract” shall have the meaning set forth in Section 2.5.1 hereof.

“TI Contract Deemed Consent Mechanics” shall mean, whenever Agent’s approval or consent is required pursuant to the provisions of Section 2.5.1(c) hereof (which section expressly references that such approval or consent is subject to the Deemed Consent Mechanics), and so long as no Event of Default or Mezzanine Loan Event of Default has occurred which is then continuing, Agent’s consent shall be deemed given if:

(a) the first correspondence from Borrower to Agent requesting such approval or consent is in an envelope marked “PRIORITY” and shall conspicuously state in 14 point or larger bold‑faced type, a legend at the top of the first page thereof stating that “FIRST NOTICE: THIS IS A REQUEST FOR CONSENT UNDER THE LOAN BY AGENT TO BORROWER. FAILURE TO RESPOND TO THIS REQUEST WITHIN SEVEN (7) BUSINESS DAYS MAY RESULT IN THE REQUEST BEING DEEMED GRANTED”, and is accompanied by the information and documents required under such Section, and any other information reasonably requested by Agent in writing prior to the expiration of such seven (7) Business Day period in order to adequately review the same has been delivered;

USActive 36631986.12 -45-

(b) Agent has failed to so respond by the seventh (7^th) Business Day, and Borrower sends to Agent a second notice requesting approval in an envelope marked “PRIORITY” and shall conspicuously state in 14 point or larger bold‑faced type, a legend at the top of the first page thereof stating that “SECOND AND FINAL NOTICE: THIS IS A REQUEST FOR CONSENT UNDER THE LOAN BY [AGENT] TO [BORROWER] TO. IF YOU FAIL TO PROVIDE A RESPONSE (E.G., APPROVAL, DENIAL OR REQUEST FOR CLARIFICATION OR MORE INFORMATION) TO THIS REQUEST FOR APPROVAL IN WRITING WITHIN FIVE (5) BUSINESS DAYS, YOUR APPROVAL SHALL BE DEEMED GIVEN”; and

Agent fails to provide a response (e.g., approval, denial or request for clarification or more information) to such second request for approval within such five (5) Business Day period.

“TI Contract Form” shall mean that certain Construction Agreement delivered from Borrower to Agent, and approved by Agent.

“Title Company” shall mean the title insurance company which issued the Title Insurance Policy.

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

“Total Debt” shall mean the sum of each of (a) the Debt and (b) the “Debt” as defined in the Senior Loan Agreement.

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

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

“UCC” shall mean the Uniform Commercial Code as in effect on the date hereof in the State in which the Property or any portion thereof is located; provided, however, that if by reason of mandatory provisions of law, the perfection or the effect of perfection or non‑perfection or priority of the security interest in any item or portion of the collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State in which the Property is located (“Other UCC State”), “UCC” means the Uniform Commercial Code as in effect in such Other UCC State for purposes of the provisions hereof relating to such perfection or effect of perfection or non‑perfection or priority.

“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) to the extent acceptable to the Approved Rating Agencies, other “government securities” within the meaning of Section 2(a)(16) of the Investment Company Act of 1940, as amended.

USActive 36631986.12 -46-

“U.S. Person” shall mean any Person that is a “United States person” as defined in Section 7701(a)(30) of the Code.

“Write-Down and Conversion Powers” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.

Section 1.2 Principles of Construction.

(a) 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.

(b) With respect to any cross‑reference to, incorporation by reference from, and/or any other reference or allusion to the Loan Documents and/or the Senior Loan Documents, as the case may be, such references shall be to referenced defined terms, provisions, sections, schedules, and/or exhibits, as the case may be, as the same are set forth in the Loan Documents and/or the Senior Loan Documents, as the case may be, as of the date hereof, and as each of the same may be amended, modified, supplemented, extended, replaced and/or restated from time to time, and shall survive the repayment or satisfaction of the Building Loan and/or Senior Loan, as the case may be, and/or the termination of the Loan Documents or the Senior Loan Documents, as the case may be, until no portion of the Loan remains outstanding.

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, Lender hereby agrees to make, and Borrower hereby agrees to borrow, Advances in respect of the Building Loan as more particularly set forth in this Agreement, up to a maximum aggregate not to exceed the Building Loan Amount. Lender will make one or more Advances (each a “Future Cap‑Ex Advance”) up to an aggregate amount of $774,461.65 (the “Future Cap‑Ex Advance Amount”) for the Mortgage Loan Advance Percentage of Approved Capital Expenses to Borrower from time to time in accordance with the terms and conditions set forth in this Agreement. Lender will also make one or more Advances (each a “Future Leasing Expense Advance”) up to an aggregate amount of $26,564,034.60 (the “Future Leasing Expense Advance Amount” and together with the Future Cap‑Ex Advance Amount, the “Future Funding Amount”) for the Mortgage Loan Advance Percentage of Approved

USActive 36631986.12 -47-

Leasing Expenses to Borrower from time to time in accordance with the terms and conditions set forth in this Agreement. For the avoidance of doubt, the Future Leasing Expense Advance Amount shall be inclusive of the Maximum Spec Buildout Additional Advance Amount and the Maximum Make Ready Additional Advance Amount. In no event shall the Future Cap‑Ex Advance Amount be used to pay for Spec Buildout Expenses or Make Ready Expenses.

2.1.2 No Reborrowings. Any amount borrowed and repaid hereunder in respect of the Building Loan may not be reborrowed.

2.1.3 The Note, Building Loan Mortgage and Loan Documents. The Loan shall be evidenced by the Note and secured by the Building Loan Mortgage, the Assignment of Leases and the other Loan Documents.

2.1.4 Use of Proceeds. Borrower hereby agrees that it shall use (a) the proceeds of the Senior Loan solely to pay and discharge any existing loans relating to the Property and to fund Reserve Accounts and pay other costs on the Closing Date, each as approved by Agent in its reasonable discretion and to retain the balance, if any, for such purposes as Borrower shall determine and (b) the proceeds of the Building Loan solely to pay or reimburse itself for Building Loan Costs actually incurred in connection with the Property in accordance with this Agreement. Borrower shall receive and hold all amounts advanced hereunder as a trust fund in accordance with the provisions of Section 13 of the Lien Law, for the purpose of paying Costs of Improvement only.

CONTRACTORS, SUBCONTRACTORS, LABORERS, MATERIALMEN AND SUPPLIERS ARE CAUTIONED THAT THE PROCEEDS OF THE BUILDING LOAN MAY BE INADEQUATE TO PAY ALL LIENABLE CLAIMS INCURRED BY BORROWER AT OR PRIOR TO THE COMPLETION OF THE CONSTRUCTION WORK AND UNPAID AT THAT TIME. ALL POTENTIAL LIENORS ARE THEREFORE CAUTIONED TO EXERCISE SOUND BUSINESS JUDGMENT IN THE EXTENSION OF CREDIT TO BORROWER. MOREOVER, THEY ARE REMINDED THAT SUBDIVISION (3) OF SECTION 13 OF THE LIEN LAW PROVIDES THAT “NOTHING IN THIS SUBDIVISION SHALL BE CONSIDERED AS IMPOSING UPON THE LENDER OR AGENT ANY OBLIGATION TO SEE TO THE PROPER APPLICATION OF LOAN PROCEEDS BY THE OWNER,” AND NEITHER LENDER NOR AGENT HAS ANY INTENTION OF VOLUNTARILY IMPOSING SUCH OBLIGATION ON ITSELF.

Section 2.2 Interest Rate.

2.2.1 Interest Rate. Subject to the terms and conditions of this Article II, interest on the Outstanding Principal Balance shall accrue from the Closing Date to but excluding the Maturity Date at the Interest Rate.

2.2.2 Interest Calculation. With respect to any applicable period, interest on the Outstanding Principal Balance shall be calculated by multiplying (a) the actual number of days elapsed in the period for which the calculation is being made by (b) a daily rate based on the Interest Rate and a three hundred sixty (360) day year by (c) the Outstanding Principal Balance in effect

USActive 36631986.12 -48-

for the applicable period as calculated by Agent (which calculation shall be conclusive and binding absent manifest error).

2.2.3 Determination of Interest Rate.

(a) The Interest Rate with respect to the Loan shall be: (i) the LIBOR Rate with respect to the applicable Interest Period for a LIBOR Loan, (ii) the Prime Rate plus the Prime Rate Spread for a Prime Rate Loan if the Loan is converted to a Prime Rate Loan pursuant to the provisions hereof or (iii) when applicable pursuant to this Agreement, the Default Rate. Notwithstanding any provision of this Agreement to the contrary, in no event shall Borrower have the right to convert a LIBOR Loan to a Prime Rate Loan.

(b) Subject to the terms and conditions hereof, the Loan shall be a LIBOR Loan and Borrower shall pay interest on the Outstanding Principal Balance at the LIBOR Rate for the applicable Interest Period. Any change in the rate of interest hereunder due to a change in the Interest Rate shall become effective as of the opening of business on the first day on which such change in the Interest Rate shall become effective. Each determination by Agent of the Interest Rate shall be conclusive and binding for all purposes, absent manifest error.

(c) In the event that Agent shall have determined (which determination shall be conclusive and binding upon Borrower absent manifest error) that by reason of circumstances affecting the interbank Eurodollar market, adequate and reasonable means do not exist for ascertaining LIBOR, then Agent shall forthwith give notice by telephone of such determination, confirmed in writing, to Borrower at least one (1) day prior to the last day of the related Interest Period. If such notice is given, the related outstanding LIBOR Loan shall be converted, on the last day of the then current Interest Period, to a Prime Rate Loan.

(d) If, pursuant to the terms hereof, any portion of the Loan has been converted to a Prime Rate Loan and Agent shall determine (which determination shall be conclusive and binding upon Borrower absent manifest error) that the event(s) or circumstance(s) which resulted in such conversion shall no longer be applicable, Agent shall give notice by telephone of such determination, confirmed in writing, to Borrower at least one (1) day prior to the last day of the related Interest Period. If such notice is given, the related outstanding Prime Rate Loan shall be converted to a LIBOR Loan on the last day of the then current Interest Period.

(e) If 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 LIBOR Loan as contemplated hereunder (i) the obligation of Lender hereunder to make a LIBOR Loan or to convert a Prime Rate Loan to a LIBOR Loan shall be canceled forthwith and (ii) any outstanding LIBOR Loan shall be converted automatically to a Prime Rate Loan on the last day of the then current Interest Period or within such earlier period as required by law. Borrower hereby agrees to promptly pay to Lender, upon demand, any additional amounts necessary to compensate Lender for any reasonable, documented, out‑of‑pocket costs incurred by Lender in making any conversion in accordance with this Agreement, including, without limitation, any interest or fees payable by Lender to lenders of funds obtained by it in order to make or maintain the LIBOR Loan hereunder. Lender’s notice of such costs, as certified to Borrower, shall be conclusive absent manifest error.

USActive 36631986.12 -49-

(f) Borrower agrees to pay any Breakage Costs in connection with the conversion (only if converted in accordance with this Section 2.2.3).

2.2.4 Default Rate. In the event that, and for so long as, any Event of Default shall have occurred and be continuing, the Outstanding Principal Balance and, to the extent permitted by law, all accrued and unpaid interest in respect thereof 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.

2.2.5 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, the Note 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 (without any prepayment fee or penalty, including, without limitation, any Prepayment Premium) 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 (without any prepayment fee or penalty, including, without limitation, any Prepayment Premium) 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.

2.2.6 Breakage Indemnity. Borrower shall indemnify Lender against any reasonable, documented, out‑of‑pocket loss or expense (other than consequential or punitive damages) which Lender may actually sustain or incur in liquidating or redeploying deposits from third parties acquired to effect or maintain the Loan or any part thereof as a consequence of (a) any payment or prepayment of the Loan or any portion thereof made on a date other than a Payment Date and (b) any Event of Default or failure to comply with prepayment procedures with respect to any payment or prepayment, as applicable, of the Outstanding Principal Balance or any part thereof or interest accrued thereon, as and when due and payable (at the date thereof or otherwise, and whether by acceleration or otherwise) (collectively, “Breakage Costs”); provided, however, Borrower shall not be required to indemnify Lender against any loss or expense to the extent arising from Lender’s willful misconduct, gross negligence, fraud, criminal acts, bad faith or material breach by Lender of the Loan Documents. Lender shall deliver to Borrower a statement for any such sums which it is entitled to receive pursuant to this Section 2.2.6, which statement shall be binding and conclusive absent manifest error. Borrower’s obligations under this Section 2.2.6 are in addition to Borrower’s obligations to pay any Prepayment Premium applicable to a payment or prepayment of the Loan.

USActive 36631986.12 -50-

Section 2.3 Debt Service Payments.

2.3.1 Payments Generally. For purposes of making payments hereunder, but not for purposes of calculating Interest Periods, if the date on which any such payment is due is not a Business Day, then amounts due on such date shall be due on the immediately preceding Business Day. All amounts due pursuant to this Agreement and the other Loan Documents shall be payable without setoff, counterclaim, defense or any other deduction whatsoever.

2.3.2 Monthly Debt Service Payment. On the Closing Date, Borrower shall make a payment of interest only equal to one (1) day’s interest in respect of the Closing Date. On April 7, 2017 (the “First Payment Date”) and each subsequent Payment Date up to and including the Maturity Date, Borrower shall make a payment to Agent for ratable benefit of Lender of interest on the Outstanding Principal Balance for the Interest Period that immediately precedes such Payment Date (the “Monthly Debt Service Payment Amount”). Agent shall have the right from time to time, in its sole discretion, upon not less than ten (10) days prior written notice to Borrower, to change (a) the Payment Date to a different calendar day, provided that such day shall be between the seventh (7^th) day of each calendar month and the fifteenth (15^th) day of each calendar month, and/or (b) the calendar days upon which the Interest Period shall commence (in a particular calendar month; provided that such day shall in all events be the same day of the calendar month as the Payment Date) and end (in the immediately succeeding calendar month; provided that such day shall in all events be the day of the calendar month immediately prior to the Payment Date), with a corresponding change in the Interest Determination Date and, if requested by Agent, Borrower shall promptly execute an amendment to this Agreement to evidence all such changes, but the failure of Borrower to exercise such amendment shall not affect the effectiveness of any change for which Agent has so notified Borrower. Notwithstanding anything to the contrary contained herein, no change in the Payment Date and/or the Interest Period as herein provided shall result in the Payment Date and/or Interest Period not being on the same dates as the “Payment Date” and “Interest Period” under the Senior Loan or the Mezzanine Loan, as such terms are defined in the Senior Loan Agreement and the Mezzanine Loan Agreement, respectively.

2.3.3 Payment on Maturity Date. Borrower shall pay to Agent for the ratable benefit of Lender not later than 3:00 p.m., New York City time, on the Maturity Date the Outstanding Principal Balance, all accrued and unpaid interest and all other amounts due hereunder and under the Note, the Building Loan Mortgage and the other Loan Documents. No Prepayment Premium shall be due and payable so long as the Maturity Date occurs after the Prepayment Premium Date.

2.3.4 Late Payment Charge. If any principal, interest or any other sums due under the Loan Documents (other than the payment of principal due on the Maturity Date) is not paid by Borrower on or prior to the date on which it is due, Borrower shall pay to Agent for the ratable benefit of Lender upon demand an amount equal to the lesser of (a) five percent (5%) of such unpaid sum, and (b) the Maximum Legal Rate, in order to defray the expense incurred by Agent and Lender in handling and processing such delinquent payment and to compensate Agent and Lender for the loss of the use of such delinquent payment. Any such amount shall be secured by the Building Loan Mortgage and the other Loan Documents to the extent permitted by applicable law.

USActive 36631986.12 -51-

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 Agent for the ratable benefit of Lender not later than 3:00 p.m., New York City time, on the date when due and shall be made in Dollars in immediately available funds at Agent’s office or as otherwise directed by Agent, and any funds received by Agent after such time shall, for all purposes hereof, be deemed to have been paid on the next succeeding Business Day. Any prepayments required to be made hereunder or under the Cash Management Agreement by Agent or Servicer out of the Cash Management Account shall be deemed to have been timely made for purposes of this Section 2.3.5.

2.3.6 Administrative Fee. Borrower shall pay to Agent, for its own account (and not the account of any Lender), the Administrative Fee, on the Closing Date and on each anniversary of the date hereof until the date on which the Loan is indefeasibly paid in full, which Administrative Fee shall be prorated for any partial year during the term of the Loan. The payment by Borrower of the Administrative Fee under the Senior Loan shall be deemed to satisfy the obligations of Borrower under this Section 2.3.6; it being understood that there is one Administrative Fee due in connection with both the Loan and Mezzanine Loan.

Section 2.4 Prepayments.

2.4.1 Voluntary Prepayments. Except as otherwise provided herein, Borrower shall not have the right to prepay the Loan in whole or in part prior to the Maturity Date.

(a) Permitted Prepayment.

(i) On any Payment Date so long as no Event of Default has occurred and is continuing, Borrower may, at its option and upon not more than ninety (90) and not less than ten (10) days prior written notice to Agent, and subject to compliance with the provisions of this Section 2.4.1, prepay the Outstanding Principal Balance, provided that such prepayment is accompanied by (i) all accrued and unpaid interest on the Outstanding Principal Balance prepaid and (ii) all other amounts due under the Note, this Agreement, or any of the other Loan Documents (including, without limitation, the Prepayment Premium if such prepayment is made on or prior to the Prepayment Premium Date, and except in cases where a Prepayment Premium is expressly not due hereunder). A prepayment notice may be revoked by written notice of revocation to Agent on or prior to the date of prepayment specified in any such prepayment notice; provided that Borrower shall pay Agent upon demand for all of Agent’s and Lender’s out‑of‑pocket costs and expenses (including reasonable fees and disbursements of Agent’s counsel) incurred in connection with such anticipated prepayment and any reasonable documented sums for any Breakage Costs actually incurred by reason of the revocation.

USActive 36631986.12 -52-

(b) Prepayment/Repayment Conditions.

(i) On the date on which a prepayment is made, Borrower shall pay to Agent for the ratable benefit of Lender:

(A) all accrued and unpaid interest calculated at the Interest Rate on the amount of principal being prepaid through and including the Repayment Date together with an amount equal to the interest that would have accrued at the Interest Rate on the amount of principal being prepaid through the end of the Interest Period in which such prepayment occurs, notwithstanding that such Interest Period extends beyond the date of prepayment;

(B) intentionally omitted;

(C) if such prepayment is made on any date other than a Payment Date, Breakage Costs, if any, without duplication of any sums paid pursuant to Section 2.4.1);

(D) the Prepayment Premium applicable thereto (if such prepayment occurs on or prior to the Prepayment Premium Date) except in cases where a Prepayment Premium is expressly not due hereunder; and

(E) all other sums then due under the Note, this Agreement, the Building Loan Mortgage, and the other Loan Documents, including, without limitation, the Senior Loan Outstanding Principal Balance.

(ii) Intentionally omitted.

(iii) As a condition to making any voluntary prepayment under this Section 2.4.1, Borrower shall deliver evidence to Lender that simultaneously with any such prepayment, Mezzanine Borrower shall be making pro rata prepayment(s) of the Mezzanine Loan in accordance with its then-outstanding principal balance (or, if such prepayment is prepayment in full of the Loan, Borrower shall deliver evidence to Lender that simultaneously with any such prepayment, there shall be a prepayment in full of the Mezzanine Loan in accordance with its then-outstanding principal balance).

2.4.2 Mandatory Prepayments. Following any Casualty or Condemnation, on the next occurring Payment Date following the date on which Agent actually receives any Net Proceeds, if Agent is not obligated to make such Net Proceeds available to Borrower for Restoration, Borrower shall prepay, or authorize Agent to apply such Net Proceeds as a prepayment of, the Outstanding Principal Balance of the Note in an amount equal to one hundred percent (100%) of such Net Proceeds; provided, however, that if an Event of Default has occurred and is continuing, Agent may apply such Net Proceeds to the Debt (until paid in full) in any order or priority in its sole discretion. Additionally, so long as no Event of Default has occurred and is continuing, no Prepayment Premium or any other prepayment premium, penalty or fee shall be due in connection with any prepayment

USActive 36631986.12 -53-

made pursuant to this Section 2.4.2. Any partial prepayment under this Section 2.4.2 shall be applied to the last payments of principal due under the Loan.

2.4.3 Prepayments Made While an Event of Default Exists. If, following the occurrence and during the continuance of an Event of Default, payment of all or any part of the Debt is tendered by Borrower for any reason or otherwise recovered by Lender (including, without limitation, through acceleration or the application of any Reserve Funds or Net Proceeds) Borrower shall pay, as part of the Debt, all of (a) all accrued interest calculated at the Interest Rate on the amount of principal being prepaid through and including the date of such prepayment together with an amount equal to the interest that would have accrued at the Interest Rate on the amount of principal being prepaid through the end of the Interest Period in which such prepayment occurs, notwithstanding that such Interest Period extends beyond the date of prepayment, (b) the Breakage Costs, if any, without duplication of any sums paid pursuant to the preceding clauses (a), and (c) an amount equal to the Prepayment Premium if repayment occurs on or prior to the Prepayment Premium Date. For the avoidance of doubt, if, after the Aggregate Debt is paid in full, Lender receive any additional amounts under this Section 2.4.3 or Section 2.4.3 of the Senior Loan Agreement, Borrower hereby directs Lender to pay such additional amounts to Senior Mezzanine Agent for application in accordance with the terms of the Senior Mezzanine Loan Documents (and then the balance, if any, shall be disbursed to Junior Mezzanine Agent for application in accordance with the terms of the Junior Mezzanine Loan Documents, and then the remaining balance, if any shall be disbursed to Borrower).

2.4.4 Allocation of Prepayments. Notwithstanding anything to the contrary contained in this Agreement, the following principal payments shall be allocated among the Loan and the Mezzanine Loan as follows:

(a) Upon the occurrence and during the continuance of an Event of Default, Agent and Lender shall apply all prepayments first to payment of the Aggregate Debt, in any order and priority as elected by Agent in its sole discretion, until paid in full and, thereafter, Borrower hereby directs Agent to distribute all additional amount to Mezzanine Agent for application to the Mezzanine Outstanding Principal Balance in accordance with the terms of the Mezzanine Loan Documents.

(b) At any time any portion of the Aggregate Debt remains outstanding, all Net Proceeds shall be applied to the Loan and not to the Mezzanine Loan regardless of whether or not an Event of Default then exists. If Any Net Proceeds remain after the prepayment of the Aggregate Debt in full, Borrower hereby direct Agent to distribute such amounts as follows: (A) if the Mezzanine Loan (or any portion thereof) is then outstanding, as a distribution to Mezzanine Agent for application to the Mezzanine Loan Outstanding Principal Balance in accordance with the terms of the Mezzanine Loan Documents, or (B) if the Mezzanine Loan has been repaid in full, to Borrower.

(c) Lender shall promptly upon receipt deliver to Senior Mezzanine Agent or Junior Mezzanine Agent, as applicable, any portion of a prepayment that pursuant to the provisions of this Section 2.4.4 is to be applied towards the Senior Mezzanine Loan or the Junior Mezzanine Loan, as applicable. Notwithstanding anything to the contrary contained in this Agreement, the Loan Documents, and/or the Mezzanine Loan Documents, the parties hereto acknowledge and agree

USActive 36631986.12 -54-

that, as to any clause or provision contained in this Agreement, the other Loan Documents, and/or the Mezzanine Loan Documents to the effect that payments are to be made by Borrower to Senior Mezzanine Lender or Junior Mezzanine Lender or otherwise applied to the Mezzanine Loan, such clause or provision shall be deemed to mean, and shall be construed as meaning, that (i) with respect to the Senior Mezzanine Loan, Lender shall pay to Borrower, and Borrower shall then immediately distribute to Senior Mezzanine Borrower, its sole member, pursuant to and in accordance with the organizational documents of Borrower and Senior Mezzanine Borrower, which distributions shall be immediately paid by Senior Mezzanine Borrower to Senior Mezzanine Agent for the ratable benefit of Senior Mezzanine Lender under the Senior Mezzanine Loan and (ii) with respect to the Junior Mezzanine Loan, Lender shall pay to Borrower, and Borrower shall then immediately distribute to Senior Mezzanine Borrower, its sole member, pursuant to and in accordance with the organizational documents of Borrower and Senior Mezzanine Borrower, and Senior Mezzanine Borrower shall then immediately distribute to Junior Mezzanine Borrower, its sole member, pursuant to and in accordance with the organizational documents of Senior Mezzanine Borrower and Junior Mezzanine Borrower which distributions shall be immediately paid by Junior Mezzanine Borrower to Junior Mezzanine Agent for the ratable benefit of Junior Mezzanine Lender under the Junior Mezzanine Loan, and any such clause or provision shall not be construed as meaning that Borrower and/or Senior Mezzanine Borrower is acting on behalf of, holding out its credit for, or paying the obligations of, Senior Mezzanine Borrower or Junior Mezzanine Borrower, as applicable, directly or in any other manner that would violate any of the single purpose entity covenants contained in this Agreement or other similar covenants contained in Borrower’s organizational documents, Senior Mezzanine Borrower’s organizational documents or Junior Mezzanine Borrower’s organizational documents, respectively.

(d) Notwithstanding anything in the Loan Documents to the contrary, Borrower acknowledges and agrees that all prepayments applied to the Aggregate Outstanding Principal Balance shall be applied to the Building Loan and/or the Senior Loan in such order and priority as determined by Lender in its sole and absolute discretion.

Notwithstanding anything herein to the contrary, in no event shall Borrower pay any amounts to Agent or Lender to the extent such amounts are due and payable to Mezzanine Agent for the ratable benefit of Mezzanine Lender.

Section 2.5 Advances.

2.5.1 Future Leasing Expense Advances.

(a) Lender shall make Future Leasing Expense Advances to Borrower from time to time for the Mortgage Loan Advance Percentage portion of Approved Leasing Expenses incurred by Borrower in connection with new or renewal Leases entered into after the date hereof in accordance with the terms hereof upon satisfaction by Borrower of each of the following conditions with respect to each such Future Leasing Expense Advance:

(i) Borrower shall submit a draw request for payment in the form attached hereto as Schedule II to Agent at least ten (10) Business Days prior to the date on which Borrower requests such payment be made, which request shall specify

USActive 36631986.12 -55-

the Approved Leasing Expense to be paid and shall be accompanied by copies of invoices for the amounts requested and any other information required hereunder to be delivered to Agent in connection with such invoice;

(ii) Only with respect to tenant improvement costs, Borrower shall certify to Agent that any required equity contribution for amounts in excess of $80.00 per square foot for any Lease related to costs covered by such Advance has been contributed (i.e., expended by Borrower and invested in the Property for such costs) or will be so contributed, including contributions from Excess Cash that has been or is to be disbursed to Borrower pursuant to Section 2.7.2(b), contemporaneously with the payment of the Advance;

(iii) on the date such request is received by Agent and on the date such payment is to be made, no Default, Event of Default or Mezzanine Loan Default or Mezzanine Loan Event of Default shall have occurred and be continuing;

(iv) the Lease giving rise to the Approved Leasing Expense to be paid shall have been entered into (or renewed, if applicable) in accordance with the Loan Documents and approved by Agent, if applicable;

(v) Agent shall have received, (A) with respect to tenant improvements to be completed by Borrower or its Affiliate, a copy of any license, permit or other approval by any Governmental Authority required in connection with the tenant improvements if then available and not previously delivered to Agent; (B) with respect to tenant improvements to be completed by Borrower or its Affiliate, Lien waivers (or partial or conditional (conditioned only on payment) Lien waivers, as applicable) or other evidence of payment or that such payment is due reasonably satisfactory to Agent and releases (with respect to amounts then due and owing) from all parties furnishing materials and/or services in connection with the requested payment or lien release bond; (C) a “date down endorsement” to the Title Insurance Policy in the form attached hereto as Schedule XIII insuring the Lien of the Building Loan Mortgage to the date of such Future Leasing Expense Advance setting forth no additional exceptions (including survey exceptions) and which endorsement shall increase the coverage under the Title Insurance Policy to an amount which includes the amount so advanced by Lender hereunder, together with a title search indicating that the Property is free from all liens, claims and other encumbrances not otherwise approved by Agent other than the Permitted Encumbrances, (D) Borrower shall have provided evidence reasonably satisfactory to Agent that it has increased the notional amount of the Interest Rate Cap Agreement to the Aggregate Outstanding Principal Balance following such Advance, and (E) such other evidence as Agent shall reasonably request to demonstrate that the Approved Leasing Expenses to be funded by the requested disbursement hereunder and under the Mezzanine Loan Agreement are paid for or will be paid upon such disbursement to Borrower;

(vi) (A) the space subject to such Lease shall (1) have been vacant as of the Closing Date, (2) become vacant after the Closing Date or (3) be renewed by an

USActive 36631986.12 -56-

existing Tenant or (B) such Lease shall be otherwise reasonably acceptable to Agent; and

(vii) Senior Mezzanine Lender shall simultaneously fund the Senior Mezzanine Loan Advance Percentage (as defined in the Senior Mezzanine Loan Agreement) portion and Junior Mezzanine Lender shall simultaneously fund the Junior Mezzanine Loan Advance Percentage (as defined in the Junior Mezzanine Loan Agreement) portion of the total amount of funds being requested in any individual notice of borrowing (it being acknowledged that for any notice of borrowing, Lender shall fund the Mortgage Loan Advance Percentage portion of the total amount of funds requested pursuant to such draw request).

(b) Lender shall not be required to make any Future Leasing Expense Advances more than one (1) time per calendar month and unless such requested amount together with the corresponding request by Mezzanine Borrower under the Mezzanine Loan Agreement is in an aggregate amount greater than One Hundred Thousand and No/100 Dollars ($100,000.00) except for the final disbursement which may be less. In no event shall Lender have any obligation to make Future Leasing Expense Advances on account of any Approved Leasing Expenses in excess of the Future Leasing Expense Advance Amount.

(c) Notwithstanding anything to the contrary contained herein, all disbursements by Lender of Future Leasing Expenses Advances shall be for costs and expenses as set forth in, and shall be subject to the terms of, the Section 22 Affidavit and shall only be used to pay for Costs of Improvement. Borrower shall be able to sign any construction or professional contracts related to any Approved Leasing Expenses for tenant improvement work, Spec Buildout Work or Make Ready Work (each, a “TI Contract”) on any contract form and without Agent’s approval; provided, however, if such TI Contract is in excess of $1,000,000.00, Borrower shall use the TI Contract Form without material modification. If (i) the total cost of any TI Contract is over $4,000,000.00, (ii) the work in a TI Contract relates to a Major Lease or (iii) the total cost of any TI Contract is over $1,000,000.00 and that Borrower has not used the TI Contract Form without material modification, Borrower will deliver to Agent a draft of such modified TI Contract for Agent’s review and approval, such approval not to be unreasonably withheld, denied, delayed or conditioned and to be subject to the TI Contract Deemed Consent Mechanics. If requested by Agent, Borrower will deliver “will‑serve” letters from applicable counterparties under the TI Contracts that Lender has the right to approved pursuant to this Section 2.5.1(c), whereby such contract counterparties have agreed to upon a continuing Event of Default, perform the applicable work for the benefit of Agent.

2.5.2 Future Cap‑Ex Advances; CapEx Budget.

(a) Lender shall make Future Cap‑Ex Advances to Borrower from time to time for the Mortgage Loan Advance Percentage portion of Approved Capital Expenses incurred by Borrower, upon satisfaction by Borrower of each of the following conditions with respect to each Future Cap‑Ex Advance:

(i) Borrower shall submit a draw request for payment in the form attached hereto as Schedule II to Agent at least ten (10) Business Days prior to the

USActive 36631986.12 -57-

date on which Borrower requests such payment be made, which request specifies the Approved Capital Expense to be paid and shall be accompanied by copies of invoices for the amounts requested and any other information required hereunder to be delivered to Agent in connection with such invoice,

(ii) Agent shall have received conditional (conditioned only on payment) Lien waivers (or partial Lien waivers, as applicable) or other evidence of payment or that payment is due reasonably satisfactory to Agent and releases (with respect to amounts then due and owing) from all parties furnishing materials and/or services in connection with the requested payment;

(iii) on the date such request is received by Agent and on the date such payment is to be made, no Default, Event of Default, Mezzanine Loan Default or Mezzanine Loan Event of Default shall have occurred and be continuing,

(iv) Agent shall have received a “date down endorsement” to the Title Insurance Policy in the form attached hereto as Schedule XIII insuring the Lien of the Building Loan Mortgage to the date of such Future Cap‑Ex Advance setting forth no additional exceptions (including survey exceptions) and which endorsement shall increase the coverage under the Title Insurance Policy to an amount which includes the amount so advanced by Lender hereunder, together with a title search indicating that the Property is free from all liens, claims and other encumbrances not otherwise approved by Agent other than the Permitted Encumbrances,

(v) Borrower shall have provided evidence reasonably satisfactory to Agent that it has increased the notional amount of the Interest Rate Cap Agreement to the Aggregate Outstanding Principal Balance following such Advance;

(vi) Agent shall have received such other evidence as Agent shall reasonably request that the Approved Capital Expense to be funded by the requested Future Cap‑Ex Advance hereunder and under each Mezzanine Loan Agreement have been completed and are paid for or will be paid upon receipt of such Advance by Borrower and each Mezzanine Borrower;

(vii) Borrower shall have submitted a budget, which budget shall be approved by Agent, which details, subject to Borrower’s right to reallocate certain costs pursuant to Section 5.1.30(c) hereof, all reasonably anticipated costs with respect to such Approved Capital Expenses, with sufficient detail on a line item basis, which Borrower represents and warrants to be its best estimate of all reasonably anticipated costs in connection with such Approved Capital Expenses (as same may be amended by Borrower from time to time, a “CapEx Budget”); and

(viii) Senior Mezzanine Lender shall simultaneously fund the Senior Mezzanine Loan Advance Percentage (as defined in the Senior Mezzanine Loan Agreement) portion and Junior Mezzanine Lender shall simultaneously fund the Junior Mezzanine Loan Advance Percentage (as defined in the Junior Mezzanine

USActive 36631986.12 -58-

Loan Agreement) portion of the total amount of funds being requested in any individual notice of borrowing (it being acknowledged that for any notice of borrowing, Lender shall fund the Mortgage Loan Advance Percentage portion of the total amount of funds requested pursuant to such draw request).

(b) In no event shall Lender have any obligation to make Future Cap‑Ex Advances on account of any Approved Capital Expenses in excess of the Future Cap‑Ex Advance Amount. Notwithstanding anything to the contrary contained herein, all disbursements by Lender of Future Cap‑Ex Advances shall be for costs and expenses as set forth in, and shall be subject to the terms of, the Section 22 Affidavit and shall only be used to pay for Costs of Improvement.

2.5.3 No Obligation to do Work. Nothing in this Section 2.5 shall (i) make Agent or Lender responsible for performing or completing all or any portion of the Cap‑Ex, any tenant improvements, Make Ready Work or Spec Buildout Work to be funded by a Future Cap‑Ex Advance or a Future Leasing Expense Advance; (ii) require Lender to expend funds in addition to the allocated Future Cap‑Ex Advances to complete any of the Cap‑Ex or the allocated Future Leasing Expense Advances to complete any tenant improvements or to complete Spec Buildout Work or Make Ready Work; or (iii) obligate Agent or Lender to proceed with or personally perform any Cap‑Ex, tenant improvements, Make Ready Work or Spec Buildout Work.

2.5.4 Inspections. Borrower shall permit Agent and Agent’s agents and representatives or independent contractors hired by Agent (including Agent’s engineer, architect or inspector) to enter onto the Property, subject to the rights of Tenants under applicable Leases, during normal business hours following reasonable advance notice to inspect the progress of the Approved Capital Expenses, tenant improvements, Make Ready Work or Spec Buildout Work, as applicable, and all materials being used in connection therewith and to examine all plans and shop drawings relating to such Approved Capital Expenses, tenant improvements, Make Ready Work and Spec Buildout Work. Borrower shall cause all contractors and subcontractors to cooperate with Agent or Agent’s representatives or such other Persons described above in connection with inspections described in this Section 2.5.4.

2.5.5 Additional Inspection Provisions. If an aggregate Advance (which amount excludes any Advances for leasing commissions) hereunder together with the corresponding “Advance” under the Mezzanine Loan will exceed One Million and No/100 Dollars ($1,000,000.00), Agent may require an inspection of the Property at Borrower’s expense prior to making an Advance in order to verify completion of the applicable Approved Capital Expense, tenant improvement work, Make Ready Work or Spec Buildout Work, as applicable, for which payment is sought. Agent may require that such inspection be conducted by an appropriate independent qualified inspector selected by Agent and may require a certificate of completion by an independent qualified professional architect acceptable to Agent at the conclusion of the applicable portion of the work prior to making an Advance. Following a Default under the Loan Documents, Borrower shall pay the expense of the inspection as required hereunder, whether such inspection is conducted by Agent or by an independent qualified professional architect or inspector.

USActive 36631986.12 -59-

2.5.6 No Waiver. Any Advance by Lender of the Building Loan Amount made prior to or without the fulfillment by Borrower of all of the conditions precedent thereto described in this Section 2.5, whether or not known to Agent or Lender, shall not constitute a waiver by Agent or Lender of the requirement that all conditions, including the non‑performed conditions, shall be required with respect to all additional Advances.

2.5.7 Additional Conditions to Advances.

(a) If at any time Agent determines in its sole discretion after consulting with an independent construction consultant that the then cost to complete any project that constitutes the Approved Capital Expenses is in excess of the amount set forth on the CapEx Budget for such project (subject to Borrower’s right to amend a CapEx Budget pursuant to Section 2.5.2(a)(vii) hereof), then Lender shall have no obligation to make any Advances for Approved Capital Expenses unless Borrower pays out‑of‑pocket from Borrower Equity all Approved Capital Expenses in respect of such project until the cost to complete such project is equal to the remaining unfunded portion of the Future Cap‑Ex Advance Amount hereunder and the “Future Cap‑Ex Advance Amount” under and as such term is defined in the Mezzanine Loan Agreement, in each case allocated to such project in accordance with such CapEx Budget (as based on evidence reasonably acceptable to Agent) (and thereafter Advances for Approved Capital Expenses shall again be made pursuant to this Agreement).

2.5.8 Forced Funding of Future Funding Amount. Notwithstanding anything to the contrary contained herein, if Borrower shall have timely exercised the First Extension Option and the Second Extension Option in accordance with the terms and conditions of this Agreement, on or after March 7, 2020 (the “Forced Funding Date”), Borrower shall have the right upon ten (10) Business Days’ prior written notice to Agent, but not the obligation, to cause Lender to advance all or any portion of the then unadvanced Future Funding Amount into the Rollover Reserve Account at which point the outstanding balance of the Building Loan shall be increased by the amount so funded (and, as such, Debt Service payments due and owing hereunder shall be paid based on such increased outstanding balance) and Borrower shall provide Agent a “date down endorsement” to the Title Insurance Policy in the form attached hereto as Schedule XIII insuring the Lien of the Building Loan Mortgage to the date of such advance setting forth no additional exceptions (including survey exceptions) and which endorsement shall increase the coverage under the Title Insurance Policy to an amount which includes the amount so advanced by Lender hereunder, together with a title search indicating that the Property is free from all liens, claims and other encumbrances not otherwise approved by Agent other than the Permitted Encumbrances. Borrower hereby acknowledges that Lender’s advance of the then unadvanced Future Funding Amount described in the immediately preceding sentence shall not in any way diminish or otherwise modify the conditions precedent to Advances described in this Section 2.5 or any of Borrower’s obligations under the Loan Documents. Simultaneously with Borrower’s election to cause Lender to advance all or any portion of the then unadvanced Future Funding Amount into the Rollover Reserve Account, Mezzanine Borrower shall cause Mezzanine Lender to advance a pro rata portion of the then unadvanced “Future Funding Amount” into the Rollover Reserve Account under Section 2.5.8 of the Mezzanine Loan Agreement.

USActive 36631986.12 -60-

2.5.9 Cancellation of Advances. Borrower shall have the right to notify Agent in writing at least ninety (90) days prior to the Forced Funding Date that Borrower desires to cancel its ability to receive Advances of all or a portion of the then unadvanced Future Funding Amount not otherwise allocated to pay for Leasing Expenses relating to the EDC Lease (unless there are sufficient funds on deposit in the Rollover Reserve Account and/or the Excess Cash Reserve Account to pay such Leasing Expenses related to the EDC Lease), provided that Agent shall have confirmed (a) that the Cap‑Ex performed to date has been Completed in accordance with the terms and conditions of this Agreement and all the costs associated with the such Cap‑Ex performed to date have been paid for in full and (b) that all outstanding Leasing Expenses have been paid in full. If Borrower so notifies Agent prior to such applicable date, Borrower’s right to receive, and Lender’s obligation to make, any further Advances of the Future Funding Amount pursuant to this Agreement, shall be terminated and of no further force and effect. Simultaneously with Borrower’s cancellation of the Future Funding Amount under this Section 2.5.9, Mezzanine Lender shall cancel the pro rata amount of the “Future Funding Amount” under Section 2.5.9 of the Mezzanine Loan Agreement.

2.5.10 Spec Buildout Work.

(a) Notwithstanding anything contained herein, a portion of the remaining amount otherwise available for Advances for Approved Leasing Expenses pursuant to this Agreement and the Mezzanine Loan Agreement, in an aggregate amount not to exceed at any time $1,548,923.33 (the “Maximum Spec Buildout Additional Advance Amount”), shall be available for payment towards the Spec Buildout Expenses, subject to the following: (i) the aggregate amount of Spec Buildout Expenses paid by Building Loan proceeds and Mezzanine Loan proceeds shall not exceed $80.00 per square foot of the portion of the Property to be built‑out (unless the cost in excess has been contributed (i.e. expended by Borrower and invested in the Property for such costs ) or will be so contributed, including contributions from Excess Cash that has been or is to be disbursed to Borrower pursuant to Section 2.7.2(b), contemporaneously with the payment of the Advance), (ii) satisfaction of each of the conditions and requirements under this Agreement applicable to Advances for Approved Leasing Expenses or applicable to Advances generally (except for conditions related to Leases), and (iii) the further provisions of this Section 2.5.10. Any Advances for Spec Buildout Expenses shall reduce the remaining amount that otherwise would be available for Advances for other Approved Leasing Expenses, such that the aggregate amount of Advances made for Spec Buildout Expenses (which shall be subject to the Maximum Spec Buildout Additional Advance Amount, as provided above) and Advances made for other Approved Leasing Expenses shall never collectively exceed the Future Leasing Expense Advance Amount. Upon execution of a Lease pursuant to the terms of this Agreement (including Section 5.1.21), which covers all or a portion of the space in the Property for which Spec Buildout Work was performed (a “Spec Buildout Lease”) (and which complies with the Minimum Leasing Guidelines, which shall take into account any amounts previously disbursed by Lender hereunder and amounts contributed by Borrower, in each case with respect to Spec Buildout Expenses, plus any additional tenant improvement, buildout or similar costs under such Spec Buildout Lease), the amount of Advances for any Spec Buildout Expenses associated with such Lease (as reasonably determined by Agent) shall no longer be considered solely for purposes of determining the amount of Advances for Spec Buildout Expenses then available in accordance with the Maximum Spec Buildout Additional Advance Amount; it being understood that any further Advances for Spec Buildout Expenses shall be subject to all of

USActive 36631986.12 -61-

the conditions specified herein. In the event that only a portion of the space in the Property for which Spec Buildout Work was performed is subject to a Spec Buildout Lease, a pro rata amount (based on the applicable rentable square footage of the portion leased relative to the total rentable square footage of the portion of the Property for which the Spec Buildout Work was performed) of Advances for any Spec Buildout Expenses associated with such Lease (as reasonably determined by Agent) shall no longer be considered solely for purposes of determining the amount of Advances for Spec Buildout Expenses then available in accordance with the Maximum Spec Buildout Additional Advance Amount.

(b) As a condition to the making of any Advance pursuant to Section 2.5.10(a)), Borrower shall submit the following to Agent: (i) a budget setting forth all work to be performed by Borrower in connection with such Spec Buildout Work and the anticipated cost thereof (and which shall not exceed the amount set forth in clause (i) of the first sentence of Section 2.5.10(a), subject to the exception set forth therein) (the “Spec Buildout Budget”), (ii) Borrower shall have provided evidence reasonably satisfactory to Agent that it has increased the notional amount of the Interest Rate Cap Agreement to the Aggregate Outstanding Principal Balance following such Advance and (iii) all plans and specifications for such Spec Buildout Work (the “Spec Buildout Plans”). Borrower shall have the right to amend a Spec Buildout Budget from time to time to make adjustments of any line item by an amount not to exceed five percent (5%) of the cost for such line item by giving notice thereof to Agent.

(c) Any Advances made pursuant to this Section 2.5.10 shall be applied only to Spec Buildout Expenses set forth in the Spec Buildout Budget and incurred in connection with Spec Buildout Work performed in accordance with the Spec Buildout Plans.

(d) For the avoidance of doubt, for all purposes of this Agreement (including, without limitation, this Section 2.5.10 and Sections 2.5.1 and 5.1.21), in determining whether any Spec Buildout Lease (or proposed Spec Buildout Lease) complies with the Minimum Leasing Guidelines, the tenant improvement, buildout or similar costs under such Spec Buildout Lease shall be deemed to include (i) any and all amounts previously disbursed by Lender hereunder and Borrower Equity spent for Spec Buildout Expenses with respect to such Spec Buildout Work (the foregoing clause (i), “Prior Disbursed Amounts”), and (ii) any and all tenant improvement, buildout or similar costs with respect to the applicable demised premises contemplated under such Spec Buildout Lease (and/or under any related work letters or similar arrangements) (the foregoing clause (ii), “Tenant Improvement Costs”) (i.e., such that the total amount of Prior Disbursed Amounts and Tenant Improvement Costs with respect to such Spec Buildout Lease shall not collectively exceed the applicable maximum expenditures per rentable square foot for all tenant improvement, buildout or similar costs with respect to the applicable demised premises set forth in the Minimum Leasing Guidelines).

2.5.11 Make Ready Work.

USActive 36631986.12 -62-

for payment towards the Make Ready Expenses, subject to the following: (i) reserved, (ii) satisfaction of each of the conditions and requirements under this Agreement applicable to Advances for Approved Leasing Expenses or applicable to Advances generally (except for conditions related to Leases), and (iii) the further provisions of this Section 2.5.11. Any Advances for Make Ready Expenses shall reduce the remaining amount that otherwise would be available for Advances for other Approved Leasing Expenses, such that the aggregate amount of Advances made for Make Ready Expenses (which shall be subject to the Maximum Make Ready Additional Advance Amount, as provided above) and Advances made for other Approved Leasing Expenses shall never collectively exceed the Future Leasing Expense Advance Amount.

(b) As a condition to the making of any Advance pursuant to Section 2.5.11(a)), Borrower shall submit the following to Agent: (i) a budget setting forth all work to be performed by Borrower in connection with such Make Ready Work and the anticipated cost thereof (and which shall not exceed the amount set forth in clause (i) of the first sentence of Section 2.5.11(a)) (the “Make Ready Budget”), (ii) Borrower shall have provided evidence reasonably satisfactory to Agent that it has increased the notional amount of the Interest Rate Cap Agreement to the Aggregate Outstanding Principal Balance following such Advance, and (iii) all plans and specifications for such Make Ready Work (the “Make Ready Plans”). Borrower shall have the right to amend a Make Ready Budget from time to time to make adjustments of any line item by an amount not to exceed five percent (5%) of the cost for such line item by giving notice thereof to Agent

(c) Any Advances made pursuant to this Section 2.5.11 shall be applied only to Make Ready Expenses set forth in the Make Ready Budget and incurred in connection with Make Ready Work performed in accordance with the Make Ready Plans.

2.5.12 Future Advances Generally. Agent’s and the Lender’s obligations to perform in accordance with this Section 2.5 and to make any Advance in accordance with the terms and provisions of this Agreement are an independent contract made by Agent and Lender to Borrower separate and apart from any other obligation of Agent and Lender to Borrower under the other provisions of this Agreement and the Loan Documents. The obligations of Borrower under this Agreement and the Loan Documents shall not be reduced, discharged or released because or by reason of any existing or future offset, claim or defense of Borrower, or any other party, against Agent or Lender by reason of Agent’s or Lender’s failure to perform its obligations under this Section 2.5. Borrower acknowledges and agrees that the failure of Agent or Lender to perform their obligations hereunder shall not affect the obligations of Borrower hereunder to any Person nor shall any other Person be liable for the failure of Agent or Lender to perform their respective obligations hereunder or under the other Loan Documents.

Section 2.6 Release of Property. Except as set forth in this Section 2.6, no repayment or prepayment of all or any portion of the Note shall cause, give rise to a right to require, or otherwise result in, the release of the Lien of the Building Loan Mortgage.

2.6.1 Release on Payment in Full. Agent shall, upon the written request and at the expense of Borrower, upon payment in full of the Aggregate Debt in accordance with the terms of this Agreement and the other Loan Documents, release the Lien of the Building Loan Mortgage, or, in order to save mortgage recording tax, upon Borrower’s request, Lender shall assign the Note

USActive 36631986.12 -63-

and Agent shall assign the Building Loan Mortgage, without recourse, covenant or warranty of any nature, express or implied, but including representations (A) that Agent has not previously assigned, transferred, conveyed or encumbered the Building Loan Mortgage that has not been terminated or cancelled immediately prior to such assignment and (B) as to the current debt amount thereunder, to a new lender designated by Borrower, provided (a) Borrower shall pay Lender’s and Agent’s reasonable attorneys’ fees for the preparation, delivery and performance of the assignment (and the amounts set forth in clauses (i) and (ii) shall be payable by Borrower regardless of whether such assignment is ultimately consummated), (b) Borrower shall have caused the delivery of an executed affidavit under Section 275 of the New York Real Property Law, and (c) such an assignment is not then prohibited by any federal, state or local law, rule, regulation or order or by any governmental authority.

Section 2.7 Cash Management.

2.7.1 Clearing Account.

(a) Borrower shall establish and maintain a segregated Eligible Account (the “Clearing Account”) with the Clearing Bank in trust for the benefit of Agent for the benefit of Lender, which Clearing Account shall be under the sole dominion and control of Agent. The Clearing Account shall be entitled “110 XXXXXXX PROPERTY INVESTORS III, LLC, as pledgor, for the benefit of XXXXXX XXXXXXX MORTGAGE CAPITAL HOLDINGS LLC, AS AGENT, as Secured Party – Clearing Account,” or such other name as required by Agent from time to time. Borrower (i) hereby grants to Agent, for the ratable benefit of Lender, a first priority security interest in the Clearing Account and all deposits at any time contained therein and the proceeds thereof, and (ii) will take all actions necessary to maintain in favor of Agent, for the ratable benefit of Lender, a perfected first priority security interest in the Clearing Account, including, without limitation, the execution of any account control agreement required by Agent and filing or authorizing Agent to file UCC‑1 financing statements and continuations thereof. Such financing statements may describe as the collateral covered thereby as “all assets of the debtor, whether now owned or hereafter acquired” or words to the effect. Borrower will not in any way alter, modify or close the Clearing Account and will notify Agent of the account number thereof. Except as may be expressly permitted in the Clearing Account Agreement, Agent and Servicer shall have the sole right to make withdrawals from the Clearing Account and all costs and expenses for establishing and maintaining the Clearing Account shall be paid by Borrower. All monies now or hereafter deposited into the Clearing Account shall be deemed additional security for the Obligations.

(b) Borrower shall, or shall cause Manager to, deliver written instructions to all Tenants under Leases to deliver all Rents payable thereunder directly to the Clearing Account. Borrower shall, and shall cause Manager to, deposit into the Clearing Account within one (1) Business Day after receipt all amounts received by Borrower or Manager constituting Rents, other Gross Income from Operations, or other amounts related to the use, ownership or operation of the Property. The Clearing Account Agreement and Clearing Account shall remain in effect until the Loan has been repaid in full.

(c) Borrower shall cause the Clearing Bank to transfer to the Cash Management Account in immediately available funds by federal wire transfer all amounts on deposit in the

USActive 36631986.12 -64-

Clearing Account on each Business Day (less any required minimum balance pursuant to the terms of the Clearing Account Agreement).

(d) Upon the occurrence of an Event of Default, Agent may, in addition to any and all other rights and remedies available to Agent for the ratable benefit of Lender, direct the Clearing Bank to immediately pay over all funds on deposit in the Clearing Account to Agent for the ratable benefit of Lender and to apply any such funds to the payment of the Debt in any order in its sole discretion, provided, however, in the event the Clearing Account or Cash Management Account has sufficient funds and Agent fails to apply such funds to required Taxes or Insurance Premiums when due and payable, the failure by Borrower to pay Taxes or Insurance Premiums shall not give rise to liability of Borrower or Guarantor under Section 3.1(b)(viii) of this Agreement.

(e) Funds deposited into the Clearing Account shall not be commingled with other monies held by Borrower, Manager or the Clearing Bank.

(f) Borrower shall not further pledge, assign or grant any security interest in the Clearing Account or the monies deposited therein or permit any lien or encumbrance to attach thereto, or any levy to be made thereon, or any UCC‑1 financing statements, except those naming Agent, for the ratable benefit of Lender, as the secured party, to be filed with respect thereto.

(g) Borrower shall indemnify Agent, Lender and the Clearing Bank and hold Agent, Lender and the Clearing Bank harmless from and against any and all actions, suits, claims, demands, liabilities, losses, damages, obligations and costs and expenses (including litigation costs and reasonable attorneys’ fees and expenses) (other than consequential or punitive damages) arising from or in any way connected with the Clearing Account, the Clearing Account Agreement or the performance of the obligations for which the Clearing Account was established (unless arising from the willful misconduct, gross negligence, fraud, criminal acts, bad faith or material breach of the Loan Documents by Agent, Lender or the Clearing Bank, as applicable).

2.7.2 Cash Management Account.

(a) Agent, for the ratable benefit of Lender, shall establish and maintain a segregated Eligible Account (the “Cash Management Account”) to be held by the Deposit Bank in trust for the benefit of Agent for the ratable benefit of Lender, which Cash Management Account shall be under the sole dominion and control of Agent. The Cash Management Account shall be entitled “110 XXXXXXX PROPERTY INVESTORS III, LLC, as pledgor, for the benefit of XXXXXX XXXXXXX MORTGAGE CAPITAL HOLDINGS LLC, AS AGENT, as Secured Party – Cash Management Account,” or such other name as required by Agent from time to time. Agent will also establish subaccounts of the Cash Management Account which shall at all times be Eligible Accounts (and may be ledger or book entry accounts and not actual accounts) (such subaccounts are referred to herein as “Subaccounts”). Borrower (i) hereby grants to Agent, for the ratable benefit of Lender, a first priority security interest in the Cash Management Account and the Subaccounts and all deposits at any time contained therein and the proceeds thereof, and (ii) will take all actions necessary to maintain in favor of Agent, for the ratable benefit of Lender, a perfected first priority security interest in the Cash Management Account and the Subaccounts, including, without limitation, filing or authorizing Agent to file UCC‑1 financing statements and continuations

USActive 36631986.12 -65-

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. Borrower will not in any way alter, modify or close the Cash Management Account and will notify Agent of the account number thereof. Agent and Servicer shall have the sole right to make withdrawals from the Cash Management Account and the Subaccounts and all costs and expenses for establishing and maintaining the Cash Management Account and the Subaccounts shall be paid by Borrower. All monies now or hereafter deposited into the Cash Management Account and the Subaccounts shall be deemed additional security for the Obligations.

(b) Provided no Event of Default shall have occurred and be continuing, on each Payment Date (or, if such Payment Date is not a Business Day, on the immediately preceding Business Day) all funds on deposit in the Cash Management Account shall be applied by Agent (or by the Deposit Bank at Agent’s direction) to the payment of the following items in the order indicated:

(i) First, payment to Agent (for deposit in the Tax and Insurance Escrow Account) in respect of the Tax and Insurance Escrow Funds in accordance with the terms and conditions of Section 7.1 hereof, to be disbursed as set forth in this Agreement;

(ii) Second, payment to: (y) the Deposit Bank of the fees and expenses of the Deposit Bank then due and payable pursuant to the Cash Management Agreement and (z) Clearing Bank of the fees and expenses of the Clearing Bank then due and payable pursuant to the Clearing Account Agreement;

(iii) Third, payment to Agent and/or its servicer of the Monthly Debt Service Payment Amount hereunder and under the Senior Loan Agreement;

(iv) Fourth, payment to Agent for deposit in the Replacement Reserve Account, in respect of the Replacement Reserve Monthly Deposit, if required in accordance with the terms and conditions of Section 7.2.1 hereof;

(v) Fifth, payment to Agent and/or Servicer of any other amounts then due and payable under the Loan Documents hereunder and under the Senior Loan Agreement (including, without limitation, the payment of the Administrative Fee);

(vi) Sixth, payment to Borrower in an amount equal to the aggregate of (A) operating expenses due and payable by Borrower during the succeeding month as set forth in the Approved Annual Budget, (B) Extraordinary Expenses, if any, approved by Agent; less (C) any amounts which were previously disbursed to Borrower pursuant to this Section 2.7.2(b)(vi) and which were not used by Borrower to pay operating expenses or Extraordinary Expenses; provided, however, if a Cash Trap Period is then continuing, Agent shall have no obligation to disburse any funds to Borrower under this Section 2.7.2(b)(vi) unless, no less than one time per calendar quarter, Borrower has delivered to Agent not less than five (5) Business Days prior to the disbursement date an Officer’s Certificate in form and substance reasonably acceptable to Agent certifying to Agent: (x) a list in reasonable detail of the operating

USActive 36631986.12 -66-

expenses which are due and payable by Borrower during the applicable quarter as set forth in the Approved Annual Budget, and (y) a reconciliation showing all operating expenses and Extraordinary Expenses actually paid by Borrower for the prior quarter and all amounts distributed to Borrower under this Section 2.7.2(b)(vi) during the preceding calendar quarter; provided, that, in no event shall the fees payable to the Project Manager pursuant to the Project Management Agreement be deemed operating expenses or Extraordinary Expenses payable pursuant to this Section 2.7.2(b)(vi);

(vii) Seventh, payment as directed by Senior Mezzanine Agent of Senior Mezzanine Debt Service then due and payable with respect to the Senior Mezzanine Loan;

(viii) Eighth, payment as directed by Senior Mezzanine Agent of all other amounts then due and payable with respect to the Senior Mezzanine Loan;

(ix) Ninth, payment as directed by Senior Mezzanine Agent of Senior Mezzanine Debt Service then due and payable with respect to the Senior Mezzanine Loan;

(x) Tenth, payment as directed by Senior Mezzanine Agent of all other amounts then due and payable with respect to the Senior Mezzanine Loan;

(xi) Eleventh, if a Cash Trap Period is then continuing, payment of all amounts then remaining after payment of items (i) through (viii) (all amounts then remaining after payment of items (i) through (viii) being hereinafter referred to as “Excess Cash”) to the Excess Cash Reserve Fund in accordance with the terms and conditions of Section 7.7 hereof; and

(xii) Lastly, if no Cash Trap Period is then continuing, payment of all available Excess Cash to Borrower.

(c) The insufficiency of funds on deposit in the Cash Management Account shall not relieve Borrower of 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.

(d) Notwithstanding anything to the contrary contained in this Section 2.7.2, following the occurrence of an Event of Default and during the continuance thereof, all funds on deposit in the Cash Management Account may be applied by Agent in such order and priority as Agent shall determine in its sole discretion until the Debt has been indefeasibly paid in full, provided, however, in the event the Clearing Account or Cash Management Account has sufficient funds and Agent fails to apply such funds to required Taxes or Insurance Premiums when due and payable, the failure by Borrower to pay Taxes or Insurance Premiums shall not give rise to liability of Borrower or Guarantor under Section 3.1(b)(viii) of this Agreement.

USActive 36631986.12 -67-

(e) Borrower hereby agrees to reasonably cooperate with Agent with respect to any requested modifications to the Cash Management Agreement for the purpose of establishing additional sub‑accounts in connection with any payments otherwise required under this Agreement and the other Loan Documents.

(f) Borrower shall indemnify Agent, Lender and the Deposit Bank and hold Agent, Lender and the Deposit Bank harmless from and against any and all actions, suits, claims, demands, liabilities, losses, damages, obligations and costs and expenses (including litigation costs and reasonable attorneys’ fees and expenses) arising from or in any way connected with the Cash Management Account, the Cash Management Agreement or the performance of the obligations for which the Cash Management Account was established (unless arising from the willful misconduct, gross negligence, fraud, criminal acts, bad faith or material breach of the Loan Documents by Agent, Lender or the Deposit Bank, as applicable).

2.7.3 Reserved.

2.7.4 Control of Accounts.

(a) Pursuant and subject to the terms hereof and of the other Loan Documents, Borrower agrees that the Clearing Bank shall at all times be entitled to comply with all instructions originated by Agent, without further consent by Borrower, directing disposition of the Clearing Account and all sums at any time held, deposited or invested therein, together with any interest or other earnings thereon, and all proceeds thereof (including proceeds of sales and other dispositions), whether accounts, general intangibles, chattel paper, deposit accounts, instruments, documents or securities.

(b) The Clearing Account and Cash Management Account shall not, at any time, be held in the name of any Person other than Borrower, as pledgor, for the benefit of Agent, as secured party.

Notwithstanding anything to the contrary contained herein, compliance by Borrower with Section 2.7 under the Senior Loan Agreement shall be deemed to be compliance by Borrower under this Section 2.7.

USActive 36631986.12 -68-

Section 2.8 Interest Rate Cap Agreement.

2.8.1 Interest Rate Cap Agreement. Prior to or contemporaneously with the Closing Date, Borrower shall have obtained, and thereafter maintain in effect, the Interest Rate Cap Agreement (the “Initial Interest Rate Cap Agreement”), which:

(a) has a term expiring no earlier than the last day of the Interest Period in which the Maturity Date occurs (as extended from time to time pursuant to this Agreement);

(b) has a notional amount equal to the initial principal amount of the Senior Loan; provided, however, that at all times the notional amount shall equal the Aggregate Outstanding Principal Balance;

(d) is governed by the laws of the State of New York;

(e) is issued by the Counterparty to Borrower and pledged to Agent, for the ratable benefit of Lender, by Borrower in accordance with the Assignment of Rate Cap;

(f) has a Counterparty that is obligated to make a stream of payments, directly to the Clearing Account (whether or not an Event of Default has occurred) from time to time equal to the product of (i) the notional amount of such Interest Rate Cap Agreement multiplied by (ii) the excess, if any, of LIBOR (including any upward rounding under the definition of LIBOR) over the Strike Price and shall provide that such payment shall be made on a monthly basis in each case not later than (after giving effect to and assuming the passage of any cure period afforded to the Counterparty under the Interest Rate Cap Agreement, which cure period shall not in any event be more than three (3) Business Days) each Payment Date; and

(g) does not impose any material obligation on the beneficiary thereof (after payment of the acquisition cost) and is, in all material respects, satisfactory in form and substance to Agent (in its reasonable discretion) and satisfies applicable Rating Agency standards and requirements (if a Securitization has occurred), including, without limitation, provisions satisfying Rating Agencies standards, requirements and criteria (i) that incorporate representations by the Counterparty that no withholding taxes shall apply to payments by the Counterparty, and provide for “gross up” payments by the Counterparty for any withholding tax (subject to customary exceptions), (ii) whereby the Counterparty agrees not to file or join in the filing of any petition against Borrower under the Bankruptcy Code or any other federal or state bankruptcy or insolvency law, and (iii) that incorporate, if the Interest Rate Cap Agreement contemplates collateral posting by the Counterparty, a credit support annex setting forth the mechanics for collateral to be calculated and posted that are consistent with Rating Agencies standards, requirements and criteria.

In addition, Borrower shall cause the Counterparty under the Interest Rate Cap Agreement to execute and deliver the Acknowledgment.

USActive 36631986.12 -69-

If Borrower extends the Maturity Date pursuant to Section 2.9, prior to the expiration of the Initial Interest Rate Cap Agreement, Borrower shall deliver an extension of the Initial Interest Rate Cap Agreement or a replacement of the same meeting the requirements of this Section 2.8.1 except that the term shall expire no earlier than the Maturity Date.

2.8.2 Pledge and Collateral Assignment. As security for the full and punctual payment and performance of the Obligations when due (whether upon stated maturity, by acceleration, early termination or otherwise), Borrower shall execute and deliver the Assignment of Rate Cap and cause the Counterparty to execute and deliver same to Agent.

2.8.3 Covenants.

(a) Borrower shall comply in all material respects with all of its obligations under the terms and provisions of the Interest Rate Cap Agreement. All amounts payable by the Counterparty under the Interest Rate Cap Agreement to Borrower or Agent shall be deposited directly into the Clearing Account pursuant to Section 2.7. Subject to the terms hereof, provided no Event of Default has occurred and is continuing, Borrower shall be entitled to exercise all rights, powers and privileges of Borrower under, and to control the prosecution of all claims with respect to, the Interest Rate Cap Agreement. Borrower shall take all actions reasonably requested by Agent to enforce Borrower’s rights under the Interest Rate Cap Agreement in the event of a default by the Counterparty thereunder.

(b) In the event of any downgrade, withdrawal or qualification of the rating of the Counterparty below a long‑term unsecured debt rating of “A-” by S&P (or Fitch, if rated by Fitch) or long‑term unsecured debt rating of “A3” by Xxxxx’x (or Fitch, if rated by Fitch) or long‑term unsecured debt rating of “A3” by Xxxxx’x, Borrower shall replace the Interest Rate Cap Agreement with a Replacement Interest Rate Cap Agreement (and deliver a fully executed assignment of interest rate cap agreement in substantially the form of the Assignment of Rate Cap with respect thereto (a “Replacement Assignment of Rate Cap”)) not later than ten (10) Business Days following receipt of notice from Agent, Servicer or any other Person of such downgrade, withdrawal or qualification; provided that, notwithstanding the downgrade, until a Replacement Assignment of Rate Cap is in place, the Counterparty must continue to perform its obligations under the Interest Rate Cap Agreement.

(c) In the event that Borrower fails to purchase and deliver to Agent the Interest Rate Cap Agreement as and when required hereunder, Agent may purchase the Interest Rate Cap Agreement and the reasonable, documented, out‑of‑pocket cost incurred by Agent in purchasing the Interest Rate Cap Agreement shall be paid by Borrower to Agent with interest thereon at the Default Rate from the date such cost was incurred by Agent until such cost is paid by Borrower to Agent.

(d) Borrower shall not sell, assign, or otherwise dispose of, or mortgage, pledge or grant a security interest in, the Interest Rate Cap Agreement, and any sale, assignment, mortgage, pledge or security interest whatsoever made in violation of this covenant shall be a nullity and of no force and effect, and upon demand of Agent, shall forthwith be cancelled or satisfied by an appropriate instrument in writing.

USActive 36631986.12 -70-

(e) Borrower shall not (i) without the prior written consent of Agent (not to be unreasonably withheld, conditioned or delayed), modify, amend or supplement the terms of the Interest Rate Cap Agreement, (ii) without the prior written consent of Agent, terminate the Interest Rate Cap Agreement, (iii) without the prior written consent of Agent, waive or release any obligation of the Counterparty (or any successor or substitute party to the Interest Rate Cap Agreement) under the Interest Rate Cap Agreement, (iv) without the prior written consent of Agent, consent or agree to any act or omission to act on the part of the Counterparty (or any successor or substitute party to the Interest Rate Cap Agreement) which, without such consent or agreement, would constitute a default under the Interest Rate Cap Agreement, (v) fail to exercise promptly and diligently each and every right which it may have under the Interest Rate Cap Agreement, (vi) take or omit to take any action or suffer or permit any action to be omitted or taken, the taking or omission of which would result in any right of offset against sums payable under the Interest Rate Cap Agreement or any defense by the Counterparty (or any successor or substitute party to the Interest Rate Cap Agreement) to payment or (vii) fail to give prompt notice to Agent of any notice of default given by or to Borrower under or with respect to the Interest Rate Cap Agreement, together with a complete copy of such notice.

(f) In connection with the Interest Rate Cap Agreement, Borrower shall obtain and deliver to Agent an opinion of counsel from counsel (which counsel may be in‑house counsel for the Counterparty) for the Counterparty upon which Agent and its successors and assigns may rely (the “Counterparty Opinion”), under New York law and, if the Counterparty is a non‑U.S. entity, the applicable foreign law, which shall provide in relevant part, that: (i) the issuer is duly organized, validly existing, and in good standing under the laws of its jurisdiction of incorporation and has the organizational power and authority to execute and deliver, and to perform its obligations under, the Interest Rate Cap Agreement; (ii) the execution and delivery of the Interest Rate Cap Agreement by the issuer, and any other agreement which the issuer 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 issuer of the Interest Rate Cap Agreement, and any other agreement which the issuer 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 is required for such execution, delivery or performance; and (iv) the Interest Rate Cap Agreement, and any other agreement which the issuer has executed and delivered pursuant thereto, has been duly executed and delivered by the issuer and constitutes the legal, valid and binding obligation of the issuer, enforceable against the issuer in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).

2.8.4 Replacement Interest Rate Cap Agreement. If, in connection with Borrower’s exercise of any Extension Option pursuant to Section 2.9 hereof, Borrower delivers a Replacement Interest Rate Cap Agreement, all the provisions of this Section 2.8 applicable to the Interest Rate

USActive 36631986.12 -71-

Cap Agreement delivered on the Closing Date shall be applicable to the Replacement Interest Rate Cap Agreement.

Section 2.9 Extension Options.

2.9.1 Extension Options. Subject to the provisions of this Section 2.9, Borrower shall have the option (the “First Extension Option”), by written notice (the “First Extension Notice”) delivered to Agent no earlier than one hundred twenty (120) days prior to, nor later than thirty (30) days prior to, the Stated Maturity Date, to extend the Maturity Date to March 7, 2020 (the “First Extended Maturity Date”). The period of the Loan from the initial Stated Maturity Date through and including the First Extended Maturity Date shall be referred to as the “First Extension Term”. If the Maturity Date shall have been timely and properly extended to the First Extended Maturity Date, then Borrower shall have the option (the “Second Extension Option”), by written notice (the “Second Extension Notice”) delivered to Agent no earlier than one hundred twenty (120) days prior to, nor later than thirty (30) days prior to, the First Extended Maturity Date, to extend the Maturity Date to March 7, 2021 (the “Second Extended Maturity Date”). If the Maturity Date shall have been timely and properly extended to the Second Extended Maturity Date, then Borrower shall have the option (the “Third Extension Option”), by written notice (the “Third Extension Notice”) delivered to Agent no earlier than one hundred twenty (120) days prior to, nor later than thirty (30) days prior to, the Second Extended Maturity Date, to extend the Maturity Date to March 7, 2022 (the “Third Extended Maturity Date”). An Extension Notice may be revoked by written notice of revocation to Agent on or prior to two (2) Business Days prior to the applicable Maturity Date (not taking into account the requested extension); provided that Borrowers shall pay Agent upon demand for all of Agent’s out‑of‑pocket costs and expenses (including reasonable fees and disbursements of Agent’s counsel) actually incurred in connection with such anticipated extension. Borrower’s right to so extend the Maturity Date to the First Extended Maturity Date, the Second Extended Maturity Date and the Third Extended Maturity Date shall be subject to the satisfaction of the following conditions precedent prior to each extension hereunder:

(a) no Event of Default or Mezzanine Loan Event of Default shall have occurred and be continuing on the date Borrower delivers the First Extension Notice, the Second Extension Notice or the Third Extension Notice, as applicable, and no Default, Event of Default, Mezzanine Loan Default or Mezzanine Loan Event of Default shall have occurred and be continuing on the Stated Maturity Date, the First Extended Maturity Date and the Second Extended Maturity Date, as applicable;

(b) Borrower shall (i) obtain and deliver to Agent not later than one (1) Business Day prior to the first day of the term of the Loan as extended, one or more Replacement Interest Rate Cap Agreements from an Approved Counterparty in a notional amount equal to the Outstanding Principal Balance of the Loan, which Replacement Interest Rate Cap Agreement(s) shall be (A) effective for the period commencing on the day immediately following the then‑applicable Maturity Date (prior to giving effect to the applicable Extension Option) and ending on the last day of the Interest Period in which the applicable extended Maturity Date occurs, (B) have a LIBOR strike price equal to the greater of (x) a strike price such that the Debt Service Coverage Ratio at such rate is not less than 1.20 to 1.00 and (y) the Strike Price and (C) otherwise on same terms set forth

USActive 36631986.12 -72-

in Section 2.8, and (ii) execute and deliver an Acknowledgment with respect to each such Replacement Interest Rate Cap Agreement;

(c) Borrower shall deliver a Counterparty Opinion with respect to the Replacement Interest Rate Cap Agreement and the related Acknowledgment and a Replacement Assignment of Rate Cap with respect thereto;

(d) all amounts due and payable to Agent and/or Lender pursuant to this Agreement or the other Loan Documents as of the Stated Maturity Date, the First Extended Maturity Date or the Second Extended Maturity Date, as applicable, and all out-of-pocket costs and expenses of Agent and/or Lender, including reasonable out-of-pocket fees and expenses of Agent’s and/or Lender’s counsel (which Agent and/or Lender (as applicable) shall provide Borrower notice and an accounting of), in connection with the Loan and/or the applicable extension of the term shall have been paid in full;

(e) together with the First Extension Notice, the Second Extension Notice or the Third Extension Notice, as applicable, Borrower shall pay to Agent, for the ratable benefit of Lender, the applicable Extension Fee;

(f) Borrower shall have concurrently extended the “Maturity Date” as defined in and pursuant to the terms and provisions of the Senior Loan Agreement and Mezzanine Borrower shall have concurrently extended the “Maturity Date” as defined in and pursuant to the terms and provisions of the Mezzanine Loan Agreement.

(g) With respect to the Third Extension Option only, the Debt Yield shall be not less than eight percent (8.00%); provided, however, that subject to Borrower’s satisfaction of all other conditions to extension set forth in this Section 2.9, Borrower shall have the right to (i) prepay the Loan in part to satisfy such Debt Yield test (taking into account the prepayment made pursuant to Section 2.9.1(g) of the Mezzanine Loan Agreement) so long as Mezzanine Borrower has also made a pro rata payment of the Mezzanine Loan pursuant to Section 2.9.1(g) of the Mezzanine Loan Agreement, it being agreed that, notwithstanding anything herein to the contrary, any such prepayment of the Loan pursuant to this clause (g) shall be without payment of the Prepayment Premium or any other prepayment or spread maintenance premium, fee or penalty or (ii) deliver to Agent an Acceptable Letter of Credit, along with such other documents and instruments reasonably acceptable to Agent to grant Agent for the ratable benefit of Lender a first priority security interest in such letter of credit to secure Borrower’s obligations to repay the Debt to Lender hereunder (so long as (A) Senior Mezzanine Borrower has also delivered to Senior Mezzanine Agent an “Acceptable Letter of Credit” (as such term is defined in the Senior Mezzanine Loan Agreement), along with such other documents and instruments reasonably acceptable to Senior Mezzanine Agent to grant Senior Mezzanine Agent for the ratable benefit of Senior Mezzanine Lender a first priority security interest in such letter of credit to secure Senior Mezzanine Borrower’s obligations to repay the “Debt” (as such term is defined in the Senior Mezzanine Loan Agreement) to Senior Mezzanine Lender under the Senior Mezzanine Loan Documents and (B) Junior Mezzanine Borrower has also delivered to Junior Mezzanine Agent an “Acceptable Letter of Credit” (as such term is defined in the Junior Mezzanine Loan Agreement), along with such other documents and instruments reasonably acceptable to Junior Mezzanine Agent to grant Junior Mezzanine Agent for the ratable

USActive 36631986.12 -73-

benefit of Junior Mezzanine Lender a first priority security interest in such letter of credit to secure Junior Mezzanine Borrower’s obligations to repay the “Debt” (as such term is defined in the Junior Mezzanine Loan Agreement) to Junior Mezzanine Lender under the Junior Mezzanine Loan Documents), on a pro rata basis, in an amount that, when applied to the Aggregate Outstanding Principal Balance and the Mezzanine Loan Outstanding Principal Balance (including the corresponding prepayment made to the Mezzanine Loan in satisfaction of the “DY Cash Trap Cure Conditions” thereunder), would be sufficient to satisfy the then applicable Debt Yield Requirement and delivered together with the payment of Agent’s costs and expenses in connection therewith. For the avoidance of doubt, and Acceptable Letter of Credit so delivered would not be returned to Borrower until such time as the Debt has been repaid in full.

(h) If Borrower is unable to satisfy all of the foregoing conditions within the applicable time frames for each, Agent and Lender shall have no obligation to extend the Maturity Date hereunder.

2.9.2 Extension Documentation. As soon as practicable following an extension of the Maturity Date pursuant to this Section 2.9, Borrower shall, if requested by Agent, execute and deliver an amendment of and/or restatement of the Note and shall, if requested by Agent, enter into such amendments to the related Loan Documents as may be necessary or appropriate to evidence the extension of the Maturity Date as provided in this Section 2.9; in each case in form and substance reasonably acceptable to Borrower and Agent; provided, however, that no such agreement shall require Borrower or any other Person to certify that its respective representations and warranties set forth in the Loan Documents remain true and correct nor otherwise increase or adversely alter the obligations of Borrower pursuant to the Loan Documents; provided, further, however, that no failure by Borrower to enter into any such amendments and/or restatements shall affect the rights or obligations of Borrower, Agent or Lender with respect to the extension of the Maturity Date.

Section 2.10 Change in Law; Taxes.

2.10.1 Increased Costs. If as a result of any Change in Law or compliance of Lender therewith, the basis of taxation of payments to Lender or any Person Controlling Lender of the principal of or interest on the Loan is changed or Lender or the Person Controlling Lender shall be subject to (i) any Tax of any kind with respect to this Agreement (other than Excluded Taxes); or (ii) any reserve, special deposit or similar requirements relating to any extensions of credit or other assets of, or any deposits with or other liabilities, of Lender or any Person Controlling Lender is imposed, modified or deemed applicable; or (iii) any other condition affecting loans to borrowers subject to LIBOR‑based interest rates is imposed on Lender or any Person Controlling Lender and Lender determines that, by reason thereof, the cost to Lender or any Person Controlling Lender of making, maintaining or extending the Loan to Borrower is increased, or any amount receivable by Lender or any Person Controlling Lender hereunder in respect of any portion of the Loan to Borrower is reduced (such increases in cost and reductions in amounts receivable being herein called “Increased Costs”), then Lender shall provide notice thereof to Agent and Borrower and Borrower agrees that it will pay to Lender upon Lender’s written request such additional amount or amounts as will compensate Lender or any Person Controlling Lender for such Increased Costs to the extent Lender determines that such Increased Costs are allocable to the Loan. If Lender requests

USActive 36631986.12 -74-

compensation under this Section 2.10.1, Lender shall, if requested by notice by Borrower to Agent, furnish to Borrower a statement setting forth the basis for requesting such compensation and the method for determining the amount thereof. If Agent is advised by counsel chosen by it that the payment by Borrower of any amounts described in this Section 2.10.1 would be unlawful or taxable to Lender or unenforceable or provide the basis for a defense of usury, then in any such event, Lender may, by written notice to Agent and Borrower of not less than one‑hundred twenty (120) days, declare the Obligations immediately due and payable.

2.10.2 Other Taxes. Borrower agrees to pay any and all present or future gross receipts, stamp, court or documentary, intangible, recording, filing or similar taxes or other excise or property taxes, charges, or similar levies which arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, this Agreement, the other Loan Documents, or the Loan (hereinafter referred to as “Other Taxes”).

Section 2.11 Taxes.

(a) Payments Free of Taxes. Any and all payments by or on account of any obligation of Borrower under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by applicable law. If any applicable law (as determined in the good faith discretion of both Borrower and Agent after consultation with each other) requires the deduction or withholding of any Tax from any such payment, then Borrower or Agent (as applicable) shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax, then the sum payable by Borrower shall be increased as necessary so that after all deductions or withholdings have been made (including all deductions and withholdings applicable to additional sums payable under this Section), the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.

(b) Payment of Other Taxes by Borrower. Borrower shall timely pay to the relevant Governmental Authority in accordance with applicable law, or at the option of the applicable Recipient timely reimburse it for the payment of, any Other Taxes.

(c) Indemnification by Borrower. Borrower shall indemnify any Recipient, within ten (10) days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to Borrower by any such Recipient shall be conclusive absent manifest error.

(d) Evidence of Payments. As soon as practicable after any payment of Taxes by or on account of Borrower to a Governmental Authority pursuant to this Section, Borrower shall deliver to Agent the original or a certified copy of a receipt issued by such Governmental Authority

USActive 36631986.12 -75-

evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to Agent.

(e) Status of Lenders. Any Lender entitled to payments under any Loan Document shall deliver to Borrower and Agent, promptly following the time or times reasonably requested by Borrower or Agent, such properly completed and executed documentation reasonably requested by Borrower or Agent as will permit Borrower or Agent to determine whether such payments are subject to Taxes and whether such payments are to be made without withholding (including backup withholding) or at a reduced rate of withholding. Notwithstanding anything to the contrary in the preceding sentence, the completion, execution and submission of such documentation (other than such documentation set forth in Sections 2.11(e)(i), 2.11(e)(ii) and 2.11(e)(iii)) shall not be required if in such Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender. Without limiting the generality of the foregoing, such Lender shall deliver to the Borrower and Agent:

(i) if such Lender is a U.S. Person, executed originals of IRS Form W‑9 certifying that such Lender is exempt from U.S. federal backup withholding tax;

(ii) if such Lender is a Foreign Lender, executed originals of IRS Form W‑8BEN or W‑8BEN‑E, W‑8ECI or W‑8IMY, as applicable, together with all supporting documentation required under applicable law, including in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, a certificate substantially in the form of Schedule IX to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code; and

(iii) any documentation required to be provided by a Lender as prescribed under FATCA (including under Sections 1471 through 1474 of the Code) and the applicable Treasury regulations thereunder and official interpretations thereof.

(f) Changes in Tax, Debt, Credit and Documentary Stamp Laws.

(i) If any law is enacted or adopted or amended after the date of this Agreement which deducts the Loan from the value of the Property for the purpose of taxation and which imposes a tax, either directly or indirectly, on any Lender’s interest in the Loan or such Lender’s interest in the Property, Borrower will pay the tax, with interest and penalties thereon, if any. If such Lender is advised by counsel chosen by it that the payment of tax by Borrower would be unlawful or taxable to such Lender or unenforceable or provide the basis for a defense of usury then such Lender shall have the option by written notice of not less than one hundred twenty (120) days to declare the Loan immediately due and payable.

USActive 36631986.12 -76-

(ii) Borrower will not claim or demand or be entitled to any credit or credits on account of the Loan for any part of the Taxes or Other Charges assessed against the Property, or any part thereof, and no deduction shall otherwise be made or claimed from the assessed value of the Property, or any part thereof, for real estate tax purposes by reason of the Building Loan Mortgage or the Loan. If such claim, credit or deduction shall be required by applicable law and such claim, credit or deduction results in a tax, either directly or indirectly on any Lender’s interest in the Loan or Lender’s interest in the Property, such Lender shall have the option, by written notice of not less than one hundred twenty (120) days, to declare the Debt immediately due and payable.

(iii) If at any time the United States of America, any State thereof or any subdivision of any such State shall require revenue or other stamps to be affixed to the Note, the Building Loan Mortgage, or any of the other Loan Documents or impose any other similar tax or charge on the same, Borrower will pay for the same, with interest and penalties thereon, if any.

(g) Survival. Each party’s obligations under Section 2.10 and Section 2.11 shall survive any assignment of rights by, or the replacement of a Lender, the termination of any commitments, loans, or other obligations under any Loan Document and the repayment, satisfaction or discharge of all other Obligations.

ARTICLE III

EXCULPATION

Section 3.1 Exculpation.

(a) Subject to the qualifications below, neither Agent nor Lender shall enforce the liabilities and obligations of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Building Loan Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Agent may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Agent and Lender to enforce and realize upon its interest under the Note, this Agreement, the Building Loan Mortgage and the other Loan Documents, or in the Property, the Rents, or any other collateral given to Agent for the benefit of Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Property, in the Rents and in any other collateral given to Agent for the benefit of Lender, and Lender and Agent, by accepting the Note, this Agreement, the Building Loan Mortgage and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Building Loan Mortgage or the other Loan Documents. The provisions of this Section 3.1 shall not, however, (i) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (ii) impair the right of Agent

USActive 36631986.12 -77-

and Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Building Loan Mortgage; (iii) affect the validity or enforceability of the Environmental Indemnity or any guaranty made in connection with the Loan or any of the rights and remedies of Agent and Lender thereunder; (iv) impair the right of Agent and Lender to obtain the appointment of a receiver; (v) impair the enforcement of the Assignment of Leases; or (vi) constitute a prohibition against Agent and/or Lender seeking a deficiency judgment against Borrower in order to fully realize the security granted by the Building Loan Mortgage or commencing any other appropriate action or proceeding in order for Agent and/or Lender to exercise its remedies against the Property or any other Collateral.

(b) Nothing contained herein shall in any manner or way release, affect or impair the right of Agent and Lender to recover, and Borrower shall be fully and personally liable and subject to legal action, for any actual losses, damages, costs, expenses, liabilities, claims, obligations, settlement payments, penalties, fines, assessments, citations, litigation, demands, defenses, judgments, suits, proceedings and other expenses of any kind whatsoever incurred or suffered by Agent and/or Lender (including reasonable attorneys’ fees and expenses and court costs, and excluding consequential, punitive, indirect and exemplary damages, provided, however, that such consequential, punitive, indirect and exemplary damages shall not be excluded to the extent that such damages are sought by a third party from Agent and/or Lender) arising out of or in connection with the following (“Losses”):

(i) fraud or intentional misrepresentation by any Borrower Party or Guarantor in connection with the Loan;

(ii) the breach of any representation, warranty, covenant or indemnification provision in the Loan Documents concerning environmental laws, hazardous substances and asbestos and any indemnification of Agent and Lender with respect thereto;

(iii) intentional physical waste to the Property caused by the intentional acts or intentional omissions of a Borrower Party or the wrongful removal of any portion of the Property other than in the ordinary course of business, excluding physical waste resulting from intentional omissions resulting from (A) insufficient cash flow from the Property (and such insufficiency is not due to misappropriation of Rents by any Borrower Party) or (B) Lender’s failure to make Excess Cash Flow available to Borrower during a Cash Trap Period;

(iv) subject to Borrower’s right to contest the same as set forth in this Agreement, or the right of a Tenant to contest the same in accordance with its Lease, Borrower’s failure to pay Taxes, charges for labor or materials or other charges or judgments that can create Liens on any portion of a Property to the extent any such Lien is not bonded over or discharged in accordance with this Agreement; provided, that, Borrower shall have no liability pursuant to this clause (iv) if there are sufficient amounts on reserve with Agent for the payment of such Taxes, charges for labor or materials or other charges or judgments and Agent fails to make the same available to Borrower to pay the same (provided Agent’s use of such funds is not restricted

USActive 36631986.12 -78-

due to any act or omission of a Borrower Party); and further provided, that, there shall not be liability pursuant to this clause (iv) for failure to pay Taxes, charges for labor or materials or other charges or judgments that can create Liens on any portion of a Property due to the insufficiency of cash flow from the Property to pay such amounts as and when, and with the priority, required pursuant to the Loan Documents, and such insufficiency is not a result of misappropriation of Rents by any Borrower Party;

(v) Borrower’s failure to maintain an Interest Rate Cap Agreement in a notional amount equal to the principal amount of the Loan then advanced and outstanding in compliance with the terms and provisions of Section 2.8;

(vi) intentional misapplication or misappropriation by any Borrower Party in contravention of the Loan Documents of (A) any insurance proceeds paid by reason of any loss, damage or destruction to the Property, (B) any awards or other amounts received in connection with the condemnation of all or a portion of the Property, (C) any proceeds of the Advances or (D) any revenues from the Property, including Borrower’s failure to deliver to Agent any security deposits, advance deposits or any other deposits held by or on behalf of Borrower with respect to the Property upon Agent’s foreclosure of the Property or action in lieu thereof (except to the extent such deposits were applied in accordance with the terms and conditions of the leases); and

(vii) any litigation or other legal proceeding related to the Loan filed by Borrower, any Borrower Party or any affiliate of Sponsor that delays, opposes, impedes, obstructs, hinders, enjoins or otherwise interferes with or frustrates the efforts of Agent or Lender to exercise any rights and remedies available to Agent or Lender, other than good faith actions and compulsory counterclaims.

(c) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (A) neither Agent nor Lender shall be deemed to have waived any right which Agent or Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the U.S. Bankruptcy Code to file a claim for the full amount of the Debt secured by the Building Loan Mortgage or to require that all collateral shall continue to secure all of the Obligations in accordance with the Loan Documents, and (B) Borrower shall be personally liable for the payment of the entire amount of the Debt in the event of:

(i) a Transfer of the Property or a change in Control of Borrower in violation of Section 5.2.10;

(ii) Borrower, Principal, Guarantor or any Affiliate of any of them files a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency laws;

(iii) an Affiliate, officer, director, or representative which Controls, directly or indirectly, Borrower, Principal or Guarantor files, or joins in the filing of,

USActive 36631986.12 -79-

an involuntary petition against Borrower or Principal under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law, or solicits or causes to be solicited, or otherwise colludes with, petitioning creditors for any involuntary petition against Borrower or Principal from any Person;

(iv) Borrower, Principal, or Guarantor or any Affiliate of any of them files an answer consenting to, or otherwise acquiesces in writing or joins or otherwise colludes in any involuntary petition filed against it, by any other Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law;

(v) any Affiliate, officer, director, or representative which Controls Borrower consents to or acquiesces in writing or joins in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower or Principal or any portion of the Property (other than at the request of Agent and/or any Lender);

(vi) Borrower or Principal makes an assignment for the benefit of creditors, or admits, in writing in any legal proceeding, its insolvency or its inability to pay its debts as they become due;

(vii) a breach by Borrower or Principal of the negative covenants in Section 5.2.12 which breach is cited by a court of competent jurisdiction as a material factor in the substantive consolidation of Borrower with any other Person or entity that is a debtor in a Bankruptcy Action; or

(viii) Borrower fails to obtain Agent’s prior written consent to any (A) additional Indebtedness not permitted by the Loan Documents or (B) voluntary Lien (other than Permitted Encumbrances except to the extent the definition of the term “Permitted Encumbrances” requires any such consent) encumbering the Property.

(d) Except as to Guarantor as set forth in the Guaranty and the Environmental Indemnity and any other Loan Document to which Guarantor is a party, neither Agent nor Lender shall have any recourse against, nor shall there be any personal liability to, the members of Borrower, or to any shareholders, members, partners, beneficial interest holders or any other entity or person in the ownership (directly or indirectly) of Borrower (except for Guarantor as provided in the Guaranty and the Environmental Indemnity) with respect to the obligations of Borrower and Guarantor under the Loan. For purposes of clarification, in no event shall the above language limit, reduce or otherwise affect Borrower’s liability or obligations under the Loan Documents, Guarantor’s liability under the Guaranty or the Environmental Indemnity or any other Loan Document to which Guarantor is a party, or Lender’s right to exercise any rights or remedies against any collateral securing the Loan.

USActive 36631986.12 -80-

ARTICLE IV

REPRESENTATIONS AND WARRANTIES

Section 4.1 Borrower Representations. Borrower represents and warrants as of the date hereof that:

4.1.1 Organization. Borrower has been duly organized and is validly existing and in good standing with requisite power and authority to own its properties and to transact the business in which it is now engaged. 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. Borrower possesses all rights, licenses, permits and authorizations, governmental or otherwise, necessary to entitle it to own its properties and to transact the businesses in which it is now engaged, and the sole business of Borrower is the ownership, management and operation of the Property. The ownership interests of Borrower are as set forth on the organizational chart attached hereto as Schedule III. Borrower (a) has complied in all respects with its certificate of incorporation, bylaws, limited partnership agreement, articles of organization and limited liability company operating agreement, as applicable; (b) has maintained complete books and records and bank accounts separate from those of its Affiliates; (c) has obeyed all formalities required to maintain its status as, and at all times has held itself out to the public as, a legal entity separate and distinct from any other entity (including, but not limited to, any Affiliate thereof); and (d) has all requisite power and authority to conduct its business and to own its property, as now conducted or owned, and as contemplated by this Agreement, including, without limitation, the power and authority to do business in the state in which the Property is located. The signatory hereto has all requisite power, authority and legal right to execute this Agreement, the Note and the other Loan Documents on Borrower’s behalf to which Borrower is a party. Guarantor has the necessary power, authority and legal right to execute, deliver and perform its obligations under the Guaranty.

4.1.2 Proceedings. Borrower has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the other Loan Documents. This Agreement and the other Loan Documents have been duly executed and delivered by or on behalf of Borrower and constitute the 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 and/or Guarantor, as applicable, will not conflict in any material respect with or result in a breach in any material respect of any of the terms or provisions of, or constitute a default in any material respect under, or result in the creation or imposition of any Lien, charge or encumbrance (other than pursuant to the Loan Documents) upon any of the property or assets of Borrower pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, partnership agreement, management agreement or other agreement or instrument to which Borrower is a party or by which any of Borrower’s property or assets is subject, nor will such action result in any violation of the provisions of any Legal Requirements of any Governmental

USActive 36631986.12 -81-

Authority having jurisdiction over Borrower or any of Borrower’s property or assets, and any consent, approval, authorization, order, registration or qualification of or with any court or any such Governmental Authority required for the execution, delivery and performance by Borrower and/or Guarantor, as applicable, of this Agreement or any other Loan Documents has been obtained and is in full force and effect.

4.1.4 Litigation. There are no actions, suits or proceedings at law or in equity by or before any Governmental Authority or other agency now pending or, to Borrower’s knowledge, threatened against or affecting Borrower, Guarantor, Principal or the Property or any portion thereof, which actions, suits or proceedings, if determined against Borrower, Guarantor, Principal or the Property or such portion thereof, might materially adversely affect the condition (financial or otherwise) or business of Borrower, Guarantor, Principal or the condition or ownership of the Property or any portion thereof.

4.1.5 Agreements. Borrower is not a party to any agreement or instrument or subject to any restriction that materially and adversely affects Borrower or the Property or any portion thereof, or Borrower’s business, property or assets, operations or condition, financial or otherwise. Borrower is not in default in any material respect in the performance, observance or fulfillment of any of the material obligations, covenants or conditions contained in any agreement or instrument to which it is a party or by which Borrower or the Property are bound. 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 Property is otherwise bound, other than (a) any obligations under Leases or incurred in the ordinary course of the operation of the Property as permitted pursuant to clause (s) of the definition of “Special Purpose Entity” set forth in Section 1.1 hereof, and (b) the obligations under the Loan Documents.

4.1.6 Title. Borrower has good, marketable and insurable fee simple title to the real property comprising part of the Property and good title to the balance of the Property, 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, do not materially and adversely affect the value, operation or use of the Property or any portion thereof (as currently used) or Borrower’s ability to repay the Loan. The Building Loan Mortgage and the Assignment of Leases, when properly recorded in the appropriate records, together with any UCC‑1 financing statements required to be filed in connection therewith, will create (a) a valid, perfected first priority lien on the Property, subject only to Permitted Encumbrances and the Liens created by the Loan Documents, and (b) perfected security interests in and to, and perfected collateral assignments of, all personalty (including the Leases), all in accordance with the terms thereof, in each case to the extent that such a lien or security interest may be created and perfected by such recording and/or filing, and in each case subject only to any applicable Permitted Encumbrances, such other Liens as are permitted pursuant to the Loan Documents and the Liens created by the Loan Documents. There are no claims for payment for work, labor or materials affecting the Property or any portion thereof that are or may become a Lien prior to, or of equal priority with, the Liens created by the Loan Documents.

4.1.7 Solvency. Borrower has (a) not entered into the transactions contemplated by this Agreement or executed the Note, this Agreement or any other Loan Document with the

USActive 36631986.12 -82-

actual intent to hinder, delay or defraud any creditor and (b) received reasonably equivalent value in exchange for its Obligations under such Loan Documents. After giving effect to the Loan, the fair saleable value of Borrower’s assets exceeds and will, immediately following the making of the Loan, exceed Borrower’s total liabilities, including, without limitation, subordinated, unliquidated, disputed and contingent liabilities. The fair saleable value of Borrower’s assets is and will, immediately following the making of the Loan, be greater than Borrower’s probable liabilities, including the maximum amount of its contingent liabilities on its debts as such debts become absolute and matured. Borrower’s assets do not and, immediately following the making of the Loan will not, constitute unreasonably small capital to carry out its business as conducted or as proposed to be conducted. Borrower does not intend to, and does not believe that it will, incur debts and liabilities (including contingent liabilities and other commitments) beyond its ability to pay such debts and liabilities as they mature (taking into account the timing and amount of cash to be received by Borrower and the amount to be payable on or in respect of the obligations of Borrower). No Bankruptcy Action exists against Borrower or any Principal, and neither Borrower nor Principal has ever been a party to a Bankruptcy Action. Neither Borrower nor Principal is contemplating either a Bankruptcy Action or the liquidation of all or a major portion of Borrower’s assets or property, and Borrower has no knowledge of any Person contemplating the filing of any petition against it or Principal.

4.1.8 Full and Accurate Disclosure. No statement of fact made by or on behalf of Borrower in this Agreement or in any of the other Loan Documents contains any untrue statement of a material fact or omits to state any material fact necessary to make statements contained herein or therein not misleading. There is no material fact presently known to Borrower that has not been disclosed to Agent that adversely affects, nor as far as Borrower can foresee, might adversely affect, the Property (or any portion thereof) or the business, operations or condition (financial or otherwise) of Borrower or Guarantor.

4.1.9 No Plan Assets. Neither Borrower nor Guarantor is an “employee benefit plan” as defined in Section 3(3) of ERISA which is subject to Title I of ERISA or a “plan” as defined in and subject to the provisions of Section 4975 of the Code, and none of the assets of Borrower or Guarantor constitutes or will constitute “plan assets” of one or more such plans for purposes of ERISA or the Code. In addition, (a) neither Borrower nor Guarantor is a “governmental plan” within the meaning of Section 3(32) of ERISA or an entity whose assets constitute “plan assets” of a governmental plan or plans, (b) transactions by or with Borrower and/or Guarantor are not subject to any state statute or regulation regulating investments of, or fiduciary obligations with respect to, governmental plans (within the meaning of Section 3(32) of ERISA), in any case, which is similar to the provisions of Section 406 of ERISA or Section 4975 of the Code currently in effect, which would prohibit or otherwise restrict the transactions contemplated by this Agreement, and (c) none of Borrower, Guarantor or their ERISA Affiliates is at the date hereof, or has been at any time within the five (5) years preceding the date hereof, required to contribute to any Multiemployer Plan or any Pension Plan, or a “contributing sponsor” (as such term is defined in Section 4001 of ERISA) in any Multiemployer Plan or Pension Plan; and none of Borrower, Guarantor or any ERISA Affiliate has any contingent liability with respect to any post‑retirement “employee welfare benefit plan” (as such term is defined in Section 3(1) of ERISA), except as disclosed to Agent in writing.

USActive 36631986.12 -83-

4.1.10 Compliance. Borrower and the Property (including the use thereof) comply in all material respects with all applicable Legal Requirements, including, without limitation, building and zoning ordinances and codes. Borrower is not in default or violation of any order, writ, injunction, decree or demand of any Governmental Authority. There has not been committed by Borrower, or, to Borrower’s actual knowledge, any other Person in occupancy of or involved with the operation or use of the Property or any portion thereof, any act or omission affording any Governmental Authority the right of forfeiture as against the Property or any part thereof or any monies paid in performance of Borrower’s Obligations under any of the Loan Documents. Neither the Improvements as constructed, nor the use of the Property by Tenants under the Leases and the contemplated accessory uses, will violate in any material respect (a) any Legal Requirements (including subdivision, zoning, building, environmental protection and wetland protection Legal Requirements), or (b) any building permits, restrictions or records, or agreements affecting the Property or any part thereof. Neither the zoning authorizations, approvals or variances nor any other right to construct or to use the Property is to any extent dependent upon or related to any real estate other than the Property.

4.1.11 Financial Information. All financial data with respect to the Property and Guarantor, including, without limitation, the statements of cash flow and income and operating expenses that have been delivered to Agent in connection with the Loan (a) are true, complete and correct in all material respects, (b) accurately represent the financial condition of the Property and Guarantor as of the date of such reports, and (c) to the extent prepared or audited by an independent certified public accounting firm, have been prepared in accordance with GAAP or Tax Basis Accounting, in each case, consistently applied, (or such other accounting basis consistently applied and reasonably acceptable to Agent) throughout the periods covered, except as disclosed therein. Except for Permitted Encumbrances, Borrower does not have any contingent liabilities, liabilities for Taxes, unusual forward or long‑term commitments or unrealized or anticipated losses from any unfavorable commitments that are known to Borrower and reasonably likely to have a material adverse effect on the Property or any portion thereof or the operation thereof as an office building and its other intended uses, except as referred to or reflected in said financial statements. Since the date of such financial statements, there has been no Material Adverse Change in the financial condition, operation or business of Borrower or Guarantor from that set forth in said financial statements.

4.1.12 Condemnation. No Condemnation or other similar proceeding has been commenced or, to Borrower’s knowledge, is threatened or contemplated with respect to all or any portion of the Property or for the relocation of any roadway providing access to the Property.

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 that would be inconsistent with such Regulation U or any other Regulations of such Board of Governors, or for any purposes prohibited by any Legal Requirements or by the terms and conditions of this Agreement or the other Loan Documents.

4.1.14 Utilities and Public Access. The Property has rights of access to public ways and is served by water, sewer, sanitary sewer and storm drain facilities adequate to service the

USActive 36631986.12 -84-

Property for its intended uses. All public utilities necessary or convenient to the full use and enjoyment of the Property are located either in the public right‑of‑way abutting the Property (which are connected so as to serve the Property without passing over other property) or in recorded easements serving the Property and such easements are set forth in and insured by the Title Insurance Policy. All roads necessary for the use of the Property for its current purpose have been completed and dedicated to public use and accepted by all applicable Governmental Authorities. There is no on‑site sewage disposal system and the Property is served by a sewer system maintained by a Governmental Authority or property owners association.

4.1.15 Not a Foreign Person. Borrower and, if Borrower is a disregarded entity for federal income tax purposes, the Person treated as owning the assets owned by Borrower for federal income tax purposes, is not a “foreign person” within the meaning of §1445(f)(3) or of §7701 of the Code.

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

4.1.17 Assessments. There are no pending or proposed special or other assessments for public improvements or otherwise affecting the Property, nor are there any contemplated improvements to the Property that might result in such special or other assessments.

4.1.18 Enforceability. The Loan Documents are enforceable by Agent (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 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 neither Borrower nor Guarantor has asserted any right of rescission, set‑off, counterclaim or defense with respect thereto.

4.1.19 No Prior Assignment. There are no prior assignments of the Leases or any portion of the Rents due and payable or to become due and payable that are presently outstanding.

4.1.20 Insurance. Borrower has obtained and has delivered to Agent certified copies of all Policies, with all premiums paid thereunder, reflecting the insurance coverages, amounts and other requirements set forth in this Agreement. No claims have been made or are currently pending, outstanding or otherwise remain unsatisfied under any such Policies, and no Person, including Borrower, has done, by act or omission, anything which would impair the coverage of any such Policies.

4.1.21 Use of Property. The Property (and each portion thereof) is used for office, retail and other appurtenant and related uses.

USActive 36631986.12 -85-

4.1.22 Certificate of Occupancy; Licenses. All certifications, permits, licenses and approvals, including, without limitation, certificates of completion and occupancy permits required for the legal use, occupancy and operation of the Property and each portion thereof for its intended uses and otherwise as an office building (collectively, the “Licenses”), have been obtained and are in full force and effect. The use being made of the Property and each portion thereof is in conformity with the certificate of occupancy issued for the Property and any portion thereof.

4.1.23 Flood Zone. Except as shown on the Survey, none of the Improvements on the Property are located in an area as identified by the Federal Emergency Management Agency as an area having special flood hazards or, if so located, the flood insurance required pursuant to Section 6.1(a)(i) hereof is in full force and effect with respect to the Property.

4.1.24 Physical Condition. Except as set forth in the Property Condition Report the Property, including, without limitation, all buildings, improvements, parking facilities, sidewalks, storm drainage systems, roofs, plumbing systems, HVAC systems, fire protection systems, electrical systems, equipment, elevators, exterior sidings and doors, landscaping, irrigation systems and all structural components are in good condition, order and repair in all material respects. Except as set forth in the Property Condition Report, there exists no structural or other material defects or damages in or on the Property, whether latent or otherwise, and Borrower has not received notice from any insurance company or bonding company of any defects or inadequacies in the Property, or any part thereof, which would adversely affect the insurability of the same or cause the imposition of extraordinary premiums or charges thereon or of any termination or threatened termination of any policy of insurance or bond.

4.1.25 Boundaries. Except as set forth in the Survey, all of the Improvements which were included in determining the appraised value of any portion of the Property lie wholly within the boundaries and building restriction lines of such portion of the Property, and no improvements on adjoining properties encroach upon any portion of the Property, and no easements or other encumbrances upon the Property or any portion thereof encroach upon any of the Improvements, so as to materially adversely affect the value or marketability of the Property, except those easements or other encumbrances with respect to which the Title Insurance Policy insures against any losses resulting therefrom.

4.1.26 Leases. No portion of the Property is subject to any Leases other than the Leases described on the rent roll attached at Schedule I. Borrower is the owner and lessor of landlord’s interest in the Leases. No Person has any possessory interest in the Property or any portion thereof or right to occupy the same, except under and pursuant to the provisions of the Leases. Except as listed on Schedule I or disclosed in the estoppel certificates received by Agent on or prior to the Closing Date, the current Leases are in full force and effect and Borrower has neither received nor given notice of any default thereunder and, to the knowledge of Borrower, there are no defaults thereunder by either party and there are no conditions that, with the passage of time or the giving of notice, or both, would constitute defaults thereunder. The copies of the Leases and any related guaranty (including all amendments thereto) delivered to Agent are accurate, true and complete, and there are no oral agreements with respect thereto. Except as disclosed in the estoppel certificates received by Agent on or prior to the Closing Date, no Rents (other than

USActive 36631986.12 -86-

security deposits, if any, listed on Schedule I) have been paid more than one (1) month in advance of its due date. Except as listed on Schedule I or disclosed in the estoppel certificates received by Agent on or prior to the Closing Date, all work to be performed by the landlord under each Lease has been performed as required in such Lease and has been accepted by the applicable Tenant, and any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by the landlord under such Lease to any Tenant has already been received by such Tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge of any Lease or of the Rents received therein which is still in effect. No Tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the Property. Except as disclosed in the estoppel certificates received by Agent on or prior to the Closing Date and as set forth in the applicable Lease, no Tenant under any Lease has any right or option for additional space in the Improvements.

4.1.27 Survey. The Survey for the Property (and each portion thereof) delivered to Agent in connection with this Agreement has been prepared by a professional and properly licensed land surveyor in accordance with the Accuracy Standards for ALTA/ACSM Land Title Surveys as adopted by ALTA, American Congress on Surveying & Mapping and National Society of Professional Surveyors in 2011. The Survey reflects the same legal description contained in the Title Insurance Policy. The surveyor’s seal is affixed to the Survey and the surveyor provided a certification for the Survey in form and substance acceptable to Agent, which does not fail to reflect any material matter affecting the Property or the title thereto.

4.1.28 Principal Place of Business; State of Organization. Borrower’s principal place of business as of the date hereof is the address set forth in the introductory paragraph of this Agreement. Borrower is organized under the laws of the State of Delaware and its organizational identification number is 5454173.

4.1.29 Filing and Recording Taxes. All transfer taxes, deed stamps, intangible taxes or other amounts in the nature of transfer taxes (including all Other Taxes) required to be paid by any Person under applicable Legal Requirements currently in effect in connection with the transfer of the Property to Borrower have been paid. All mortgage, mortgage recording, stamp, intangible or other similar tax (including all Other Taxes) required to be paid by any Person under applicable Legal Requirements currently in effect in connection with the execution, delivery, recordation, filing, registration, perfection or enforcement of any of the Loan Documents, including, without limitation, the Building Loan Mortgage, have been paid or are being paid simultaneously herewith.

4.1.30 Special Purpose Entity/Separateness.

(a) Until the Debt has been paid in full, Borrower hereby represents, warrants and covenants that (i) Borrower has since its date of formation, is now, shall be and shall continue to be a Special Purpose Entity, (ii) Principal is, shall be and shall continue to be a Special Purpose Entity and (iii) each amendment and restatement of Borrower’s organizational documents has been accomplished in accordance with, and was permitted by, the relevant portions of said documents prior to their amendment or restatement from time to time.

USActive 36631986.12 -87-

(b) The representations, warranties and covenants set forth in Section 4.1.30(a) shall survive for so long as any amount remains payable to Agent or Lender under this Agreement or any other Loan Document.

(c) Any and all of the stated facts and assumptions made in any Insolvency Opinion, including, but not limited to, any exhibits attached thereto, will have been and shall be true and correct in all respects, and Borrower and Principal will have complied and will comply with all of the stated facts and assumptions made with respect to it in any Insolvency Opinion. Each entity other than Borrower and Principal with respect to which an assumption is made or a fact stated in any Insolvency Opinion will have complied and will comply with all of the assumptions made and facts stated with respect to it in any such Insolvency Opinion.

(d) Borrower hereby represents that from the date of its formation to the date hereof:

(i) is and always has been duly formed, validly existing, and in good standing in the state of its organization and in all other jurisdictions where it is qualified to do business;

(ii) has no judgments or liens of any nature against it except for tax liens not yet due;

(iii) is in compliance with all laws, regulations, and orders applicable to it and, except as otherwise disclosed in this Agreement, has received all permits necessary for it to operate;

(iv) is not involved in any dispute with any taxing authority;

(v) has paid all taxes which it owes;

(vi) has never owned any real property other than the Property and personal property necessary or incidental to its ownership or operation of the Property and has never engaged in any business other than the ownership and operation of the Property;

(vii) is not now, nor has ever been, party to any lawsuit, arbitration, summons, or legal proceeding that is still pending or that resulted in a judgment against it that has not been paid in full;

(viii) has provided Agent with complete financial statements that reflect a fair and accurate view of the entity’s financial condition;

(ix) has no material contingent or actual obligations not related to the Property; and

(x) each amendment and restatement of Borrower’s organizational documents has been accomplished in accordance with, and was permitted by, the

USActive 36631986.12 -88-

relevant provisions of said documents prior to its amendment or restatement from time to time.

4.1.31 Management Agreement; Leasing Agreement; Project Management Agreement.

(a) The Management Agreement is in full force and effect and there is no default thereunder by any party thereto and no event has occurred that, with the passage of time and/or the giving of notice would constitute a default thereunder. Neither the execution and delivery of the Loan Documents or Borrower’s performance thereunder will adversely affect Borrower’s rights under the Management Agreement.

(b) Each Leasing Agreement is in full force and effect and there is no default thereunder by any party thereto and no event has occurred that, with the passage of time and/or the giving of notice would constitute a default thereunder. Neither the execution and delivery of the Loan Documents or Borrower’s performance thereunder will adversely affect Borrower’s rights under the Leasing Agreements.

(c) The Project Management Agreement (Savanna) is in full force and effect and there is no default thereunder by any party thereto and no event has occurred that, with the passage of time and/or the giving of notice would constitute a default thereunder. Neither the execution and delivery of the Loan Documents or Borrower’s performance thereunder will adversely affect Borrower’s rights under the Project Management Agreement (Savanna).

4.1.32 Illegal Activity. No portion of the Property will be purchased with proceeds of any illegal activity.

4.1.33 No Change in Facts or Circumstances; Disclosure. All information submitted by Borrower to Agent including, but not limited to, all financial statements, rent rolls, reports, certificates and other documents submitted in connection with the Loan or in satisfaction of the terms thereof and all statements of fact made by Borrower in this Agreement or in any other Loan Document, are accurate, complete and correct in all material respects. There has been no material adverse change in any condition, fact, circumstance or event that would make any such information inaccurate, incomplete or otherwise misleading in any material respect or that otherwise materially and adversely affects or might materially and adversely affect the use, operation or value of the Property or any portion thereof or the business operations and/or the financial condition of Borrower or Guarantor. Borrower and Guarantor have disclosed to Agent all material facts and have not failed to disclose any material fact that could cause any Provided Information or representation or warranty made herein to be materially misleading.

4.1.34 Investment Company Act. Borrower is not (a) an “investment company” or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended; (b) a “holding company” or a “subsidiary company” of a “holding company” or an “affiliate” of either a “holding company” or a “subsidiary company” within the meaning of the Public Utility Holding Company Act of 2005, as amended; or (c) subject to any other federal or state law or regulation which purports to restrict or regulate its ability to borrow money.

USActive 36631986.12 -89-

4.1.35 Embargoed Person. As of the date hereof and at all times throughout the term of the Loan, including after giving effect to any Transfers permitted pursuant to the Loan Documents, to Borrower’s knowledge (a) none of the funds or other assets of Borrower, Principal or Guarantor constitute property of, or are beneficially owned, directly or indirectly, by any Embargoed Person; (b) no Embargoed Person has any interest of any nature whatsoever in Borrower, Principal or Guarantor, as applicable, with the result that the investment in Borrower, Principal or Guarantor, as applicable (whether directly or indirectly), is prohibited by law or the Loan is in violation of law; and (c) none of the funds of Borrower, Principal or Guarantor, as applicable, has been derived from any unlawful activity with the result that the investment in Borrower, Principal or Guarantor, as applicable (whether directly or indirectly), is prohibited by law or the Loan is in violation of law. Neither Borrower, Principal, Sponsor nor Guarantor is (or will be) a Person with whom Agent is restricted from doing business under OFAC regulations (including those persons named on OFAC’s Specially Designated and Blocked Persons list) or under any statute, executive order (including the September 24, 2001 #13224 Executive Order Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and shall not engage in any dealings or transactions or otherwise be associated with such Persons. In addition, to help the U.S. Government fight the funding of terrorism and money laundering activities, the U.S.A. Patriot Act (and the regulations thereunder) requires the Agent to obtain, verify and record information that identifies its customers. Borrower shall provide the Agent with any additional information that the Agent deems reasonably necessary from time to time in order to ensure compliance with the U.S.A. Patriot Act and any other applicable Legal Requirements concerning money laundering and similar activities.

4.1.36 Cash Management Account.

(a) This Agreement, together with the other Loan Documents, creates a valid and continuing security interest (as defined in the UCC) in the Clearing Account and Cash Management Account in favor of Agent, for the ratable benefit of Lender, as and when each such account may be established, which security interest is prior to all other Liens, other than Permitted Encumbrances, and is enforceable as such against creditors of and purchasers from Borrower. Other than in connection with the Loan Documents and except for Permitted Encumbrances, Borrower has not sold, pledged, transferred or otherwise conveyed its interest in the Clearing Account and Cash Management Account.

(b) Each of the Clearing Account and Cash Management Account shall constitute a “deposit account” within the meaning of the UCC.

(c) Pursuant and subject to the terms hereof and of the other Loan Documents, Borrower agrees that it shall instruct the Clearing Bank and Deposit Bank to comply with all instructions originated by Agent, without further consent by Borrower or any other Person, directing disposition of the Clearing Account and Cash Management Account and all sums at any time held, deposited or invested therein, together with any interest or other earnings thereon, and all proceeds thereof (including proceeds of sales and other dispositions), whether accounts, general intangibles, chattel paper, deposit accounts, instruments, documents or securities.

USActive 36631986.12 -90-

(d) The Clearing Account and Cash Management Account shall not be held in the name of any Person other than Borrower, as pledgor, for the benefit of Agent, for the ratable benefit of Lender, as secured party.

(e) The Property is not subject to any cash management system (other than pursuant to the Loan Documents), and any and all existing tenant instruction letters issued in connection with any previous financing have been duly terminated prior to the date hereof.

4.1.37 Filing of Returns; Payment of Taxes. Each of Borrower’s and Guarantor’s federal tax identification number is set forth on Schedule V. Each of Borrower and Guarantor has at all times been properly treated for federal income tax purposes either as a Disregarded Entity or as a partnership. All Taxes relating to the Property are current and are not delinquent. Each of Borrower and Guarantor has filed, or caused to be filed, all federal, state, local and foreign Tax returns, reports and other Tax‑related documents required to be filed by it and has paid all Taxes payable by it that have become due, other than those not yet delinquent and except for those being contested in accordance with Section 5.1.2. Each of Borrower and Guarantor has established on its books such charges, accruals and reserves in respect of Taxes for all fiscal periods as are required by sound accounting principles consistently applied. Neither Borrower nor Guarantor knows of any proposed assessment for additional Taxes for any period, or of any basis therefor, that, individually or in the aggregate, taking into account such charges, accruals and reserves in respect thereof as such Person has made, could reasonably be expected to cause a Material Adverse Change with respect to Borrower, Guarantor or the Property.

4.1.38 Section 22 Affidavit. The Section 22 Affidavit attached hereto as Schedule XII is in compliance with Section 22 of the Lien Law.

4.1.39 Reserved.

4.1.40 Environmental Representations. Except as otherwise disclosed by that certain Phase I environmental report (or Phase II environmental report, if required by Agent) with respect to the Property obtained by Agent in connection with the origination of the Loan on or prior to the date hereof (hereinafter referred to as the “Environmental Reports”), to Borrower’s actual knowledge, (A) there are no Hazardous Substances or underground storage tanks in, on, or under the Property, except those that are both (i) maintained in material compliance with all Environmental Statutes and with permits issued pursuant thereto and (ii) fully disclosed to Agent in writing pursuant to the Environmental Report(s); (B) there are no past or present Releases of Hazardous Substances in, on, under or from the Property which have not been fully remediated in accordance with Environmental Statute; (C) there is no past or present non‑compliance with Environmental Statutes, or with permits issued pursuant thereto, in connection with the Property which has not been fully remediated in accordance with Environmental Statutes; (D) Borrower does not know of, and has not received, any written or other notice from any Person (including, but not limited to, a Governmental Authority) relating to the threat of any Release of Hazardous Substances migrating to the Property in violation of Environmental Statutes; (E) Borrower does not know of, nor has received, any written or other notice from any Person (including, but not limited to, a Governmental Authority) relating to Hazardous Substances or Remediation thereof, of possible liability of any Person pursuant to any Environmental Statute, any other environmental conditions in connection

USActive 36631986.12 -91-

with the Property, or any actual or threatened in writing administrative or judicial proceedings in connection with any of the foregoing; (F) Borrower has delivered to Agent, in writing, any and all material information other than attorney work product or material that is otherwise privileged, relating to environmental conditions in, on, under or from the Property that is actually known to Borrower and all information that is contained in the files and records of Borrower, including, but not limited to, any reports relating to Hazardous Substances in, on, under or from the Property and/or to the environmental condition of the Property; and (G) Borrower has not received written notice of any conditions at the Property that are likely to result in the presence of Mold in the indoor air at concentrations that exceed ambient air levels or on building materials or surfaces that would require such removal and to Borrower’s knowledge, no such Mold exists as of the date hereof.

4.1.41 Intentionally Omitted.

4.1.42 Labor Matters. Other than as described on Schedule XI, true, correct and complete copies of which have been delivered to Agent, there are no collective bargaining agreements or similar agreements in effect with respect to Borrower or the Property. Borrower does not have any employees.

Section 4.2 Survival of Representations. Borrower agrees that all of the representations and warranties of Borrower set forth in Section 4.1 and elsewhere in this Agreement and in the other Loan Documents shall survive for so long as any amount remains owing to Agent under this Agreement or any of the other Loan Documents by Borrower. All representations, warranties, covenants and agreements made in this Agreement or in the other Loan Documents by Borrower shall be deemed to have been relied upon by Agent notwithstanding any investigation heretofore or hereafter made by Agent or on its behalf.

ARTICLE V

BORROWER COVENANTS

Section 5.1 Affirmative Covenants. From the date hereof and until payment and performance in full of all Obligations, Borrower hereby covenants and agrees with Agent and Lender that:

5.1.1 Existence; Compliance with Legal Requirements. Borrower shall do or cause to be done all things necessary to preserve, renew and keep in full force and effect its existence, rights, licenses, permits and franchises necessary for the conduct of its business and comply with all Legal Requirements applicable to Borrower and the Property (or any portion thereof). There shall never be committed by Borrower, and Borrower shall not permit any other Person in occupancy of or involved with the operation or use of the Property or any portion thereof to commit, any act or omission affording any Governmental Authority the right of forfeiture against the Property or any part thereof or any monies paid in performance of Borrower’s Obligations under any of the Loan Documents. Borrower shall not commit, permit or suffer to exist any act or omission affording such right of forfeiture. Borrower shall at all times maintain, preserve and protect all franchises and trade names, preserve all the remainder of its property used or useful in the conduct of its business, and shall keep the Property in good working order and repair, and from time to time make,

USActive 36631986.12 -92-

or cause to be made, all reasonably necessary repairs, renewals and replacements thereto, all as more fully provided in the Building Loan Mortgage. Borrower shall keep the Property insured at all times by financially sound and reputable insurers, to such extent and against such risks, and maintain liability and such other insurance, as is more fully provided in this Agreement. After prior notice to Agent, Borrower, at its own expense, may contest by appropriate legal proceeding promptly initiated and conducted in good faith and with due diligence, the validity of any Legal Requirement, the applicability of any Legal Requirement to Borrower or the Property (or portion thereof) or any alleged violation of any Legal Requirement; provided, that: (a) no Default or Event of Default has occurred and remains uncured; (b) such proceeding shall be permitted under, and be conducted in accordance with, the provisions of any instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances; (c) neither the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled or lost; (d) Borrower shall, upon final determination thereof, promptly comply with any such Legal Requirement determined to be valid or applicable or cure any violation of any Legal Requirement; (e) such proceeding shall suspend the enforcement of the contested Legal Requirement against Borrower and the Property; and (f) Borrower shall furnish such security as may be required in the proceeding, or as may be reasonably requested by Agent, to insure compliance with such Legal Requirement, together with all interest and penalties payable in connection therewith. Agent may apply any such security, as necessary to cause compliance with such Legal Requirement at any time when, in the reasonable judgment of Agent, the validity, applicability or violation of such Legal Requirement is finally established or the Property (or any part thereof or interest therein) shall be in danger of being sold, forfeited, terminated, cancelled or lost.

5.1.2 Taxes and Other Charges. Borrower shall pay, or shall cause its Tenant(s) to pay (to the extent any Tenant is obligated to make such payments under its Lease) all Property Taxes and Other Charges now or hereafter levied or assessed or imposed against the Property, or any part thereof, as the same become due and payable (and with respect to Property Taxes, prior to the date the same become delinquent); provided, however, Borrower’s obligation to directly pay Property Taxes shall be suspended for so long as Borrower complies with the terms and provisions of Section 7.1 hereof. Borrower will deliver to Agent receipts for payment or other evidence satisfactory to Agent that the Property Taxes and Other Charges have been so paid or are not then delinquent no later than ten (10) days prior to the date on which the Property Taxes and/or Other Charges would otherwise be delinquent if not paid; provided, however, Borrower is not required to furnish such receipts for payment of Property Taxes in the event that such Property Taxes have been paid by Agent pursuant to Section 7.1 hereof. Subject to the terms of this Section 5.1.2 and Section 5.2.2, Borrower shall not suffer and shall promptly cause to be paid and discharged any Lien or charge whatsoever, which may be or become a Lien or charge against the Property or any portion thereof (other than Permitted Encumbrances), and shall promptly pay for all utility services provided to the Property. After prior notice to Agent, Borrower, at its own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Property Taxes or Other Charges; provided that (a) no Default or Event of Default has occurred and remains uncured; (b) such proceeding shall be permitted under, and be conducted in accordance with, the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder and

USActive 36631986.12 -93-

such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances; (c) neither the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled or lost; (d) Borrower shall promptly upon final determination thereof pay the amount of any such Property Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (e) such proceeding shall suspend the collection of such contested Property Taxes or Other Charges from the Property (except that if such Property Taxes or Other Charges must be paid sooner in order to avoid being delinquent, then Borrower shall cause the same to be paid prior to delinquency, and upon making such payment prior to delinquency Borrower may continue such contest); and (f) Borrower shall furnish such security as may be required in the proceeding, or as may be reasonably requested by Agent, to insure the payment of any such Property Taxes or Other Charges, together with all interest and penalties thereon. Agent may pay over any such cash deposit or part thereof held by Agent to the claimant entitled thereto at any time when, in the judgment of Agent, the entitlement of such claimant is established or the Property (or part thereof or interest therein) shall be in danger of being sold, forfeited, terminated, cancelled or lost or there shall be any danger of the Lien of the Building Loan Mortgage being primed by any related Lien.

5.1.3 Litigation. Borrower shall give prompt notice to Agent of any litigation or proceedings by any Governmental Authority pending or threatened in writing against Borrower, Principal and/or Guarantor which might materially adversely affect Borrower’s, Principal’s or Guarantor’s condition (financial or otherwise) or business or the Property or any portion thereof.

5.1.4 Access to Property. Borrower shall permit agents, representatives and employees of Agent to inspect the Property or any part thereof at reasonable hours upon reasonable advance notice (which may be given verbally), subject to the rights of Tenants under the Leases.

5.1.5 Notice of Default. Borrower shall promptly advise Agent of (i) the occurrence of any material default under the Management Agreement or (ii) the occurrence of any event which, but for the giving of notice or passage of time, or both, would be a material default under the Management Agreement of which Borrower has knowledge.

5.1.6 Cooperate in Legal Proceedings. Borrower shall cooperate fully with Agent with respect to any proceedings before any court, board or other Governmental Authority which may in any way affect the rights of Agent hereunder or any rights obtained by Agent under any of the other Loan Documents and, in connection therewith, permit Agent, at its election, to participate in any such proceedings.

5.1.7 Perform Loan Documents. Borrower shall observe, perform and satisfy all the terms, provisions, covenants and conditions of, and shall pay when due all costs, fees and expenses to the extent required under the Loan Documents executed and delivered by, or applicable to, Borrower. Payment of the costs and expenses associated with any of the foregoing shall be in accordance with the terms and provisions of this Agreement, including, without limitation, the provisions of Section 10.13 hereof.

5.1.8 Award and Insurance Benefits. Borrower shall cooperate with Agent in obtaining for Agent the benefits of any Awards or Insurance Proceeds lawfully or equitably payable

USActive 36631986.12 -94-

in connection with the Property or any portion thereof in accordance with the terms of Article VI below, and Agent shall be reimbursed for any expenses incurred in connection therewith (including attorneys’ fees and disbursements, and the payment by Borrower of the expenses of an appraisal on behalf of Agent in the case of Casualty or Condemnation affecting the Property or any part thereof) out of such Insurance Proceeds.

5.1.9 Further Assurances. Borrower shall, at Borrower’s sole cost and expense:

(a) furnish to Agent all instruments, documents, boundary surveys, footing or foundation surveys, certificates, plans and specifications, appraisals, title and other insurance reports and agreements, and each and every other document, certificate, agreement and instrument required to be furnished by Borrower pursuant to the terms of the Loan Documents or which are reasonably requested by Agent in connection therewith;

(b) execute and deliver to Agent such documents, instruments, certificates, assignments and other writings, and do such other acts necessary or desirable, to evidence, preserve and/or protect the Collateral at any time securing or intended to secure the Obligations under the Loan Documents, as Agent may reasonably require; and

(c) do and execute all and such further lawful and reasonable acts, conveyances and assurances for the better and more effective carrying out of the intents and purposes of this Agreement and the other Loan Documents, as Agent shall reasonably require from time to time. In furtherance hereof, Borrower grants to Agent an irrevocable power of attorney coupled with an interest exercisable only after an Event of Default for the purpose of protecting, perfecting, preserving and realizing upon the interests granted pursuant to this Agreement and to effect the intent hereof, all as fully and effectually as Borrower might or could do; and Borrower hereby ratifies all that Agent shall lawfully do or cause to be done by virtue hereof. Upon receipt of a certificate of an officer of Agent in a form reasonably acceptable to Borrower as to the loss, theft, destruction or mutilation of the Note or any other Loan Document which is not of public record, and, in the case of any such mutilation, upon surrender and cancellation of such Note or other applicable Loan Document, Borrower will issue at no cost to Borrower, in lieu thereof, a replacement Note or other applicable Loan Document, dated the date of such lost, stolen, destroyed or mutilated Note or other Loan Document in the same principal amount thereof and otherwise in the same form at the Note. Such certification from Agent shall include an indemnity from Agent in a form reasonably acceptable to Borrower covering any actual loss or cost Borrower may incur in connection with such lost, mutilated, stolen or destroyed Note.

5.1.10 Mortgage Taxes. Borrower shall simultaneously herewith pay all state, county and municipal mortgage, recording, stamp, intangible and all Other Taxes imposed upon the execution and recordation of the Building Loan Mortgage.

5.1.11 Financial Reporting.

(a) Borrower will keep and maintain or will cause to be kept and maintained on a Fiscal Year basis in accordance with GAAP or Tax Basis Accounting, in each case, consistently applied, (or such other accounting basis selected by Borrower, consistently applied and reasonably acceptable to Agent), and the requirements of Regulation AB, proper and accurate books, records

USActive 36631986.12 -95-

and accounts reflecting all of the financial affairs of Borrower and all items of income and expense in connection with the operation of the Property. Agent shall have the right from time to time at all times during normal business hours upon reasonable notice (which may be verbal) to examine such books, records and accounts at the office of Borrower or any other Person maintaining such books, records and accounts and to make such copies or extracts thereof as Agent shall desire. After the occurrence of an Event of Default, Borrower shall pay any reasonable costs and expenses incurred by Agent to examine Borrower’s accounting records with respect to the Property, as Agent shall reasonably determine to be necessary or appropriate in the protection of Agent’s and Lender’s interest. Upon Agent’s reasonable request, Borrower shall furnish to Agent such other information reasonably necessary and sufficient to fairly represent the financial condition of Borrower and the Property.

(b) Borrower will furnish to Agent annually, within one hundred twenty (120) days following the end of each Fiscal Year of Borrower, a complete copy of Borrower’s and Guarantor’s annual financial statements certified as true and correct by the party providing such statements and audited by a “Big Four” accounting firm, Ernst & Young (EY), EisnerAmper LLP, Squar Xxxxxx or other independent certified public accountant reasonably acceptable to Agent in accordance with GAAP or Tax Basis Accounting, in each case, consistently applied, (or such other accounting basis consistently applied and reasonably acceptable to Agent) and the requirements of Regulation AB covering the Property for such Fiscal Year and containing statements of profit and loss for Borrower, Guarantor and the Property and a balance sheet for Borrower and Guarantor. Such statements of Borrower shall set forth the financial condition and the results of operations for the Property for such Fiscal Year, and shall include, but not be limited to, amounts representing annual net cash flow, Net Operating Income, Gross Income from Operations and Operating Expenses. Borrower’s annual financial statements shall be accompanied by (i) a comparison of the budgeted income and expenses and the actual income and expenses for the prior Fiscal Year in Excel spreadsheet form if requested by Agent, (ii) an unqualified opinion of a “Big Four” accounting firm, Ernst & Young (EY), EisnerAmper LLP, Squar Xxxxxx or other independent certified public accountant reasonably acceptable to Agent, (iii) reserved, (iv) a breakdown showing the year in which each Lease then in effect expires and the percentage of total floor area of the Improvements and the percentage of base rent with respect to which Leases shall expire in each such year, each such percentage to be expressed on both a per year and cumulative basis in Excel spreadsheet form if requested by Agent, (v) reserved, and (vi) an Officer’s Certificate certifying that each annual financial statement fairly presents the financial condition and the results of operations of Borrower and the Property subject to such reporting, and that such financial statements have been prepared in accordance with GAAP or Tax Basis Accounting, in each case, consistently applied, and as of the date thereof whether there exists an event or circumstance which constitutes a Default or Event of Default under the Loan Documents executed and delivered by, or applicable to, Borrower, and if such Default or Event of Default exists, the nature thereof, the period of time it has existed and the action then being taken to remedy the same. Guarantor’s annual financial statements shall be accompanied by (i) an unqualified opinion of a “Big Four” accounting firm, Ernst & Young (EY), EisnerAmper LLP, Squar Xxxxxx or other independent certified public accountant reasonably acceptable to Agent, (ii) a statement of its Net Worth and Liquidity (as such terms are defined in the Guaranty) within such one hundred twenty (120) day period described above and (iii) an Officer’s Certificate certifying that each annual financial statement presents fairly the financial condition and

USActive 36631986.12 -96-

the results of operations of Guarantor being reported upon and that such financial statements have been prepared in accordance with GAAP or Tax Basis Accounting, in each case, consistently applied, (or such other accounting basis consistently applied and reasonably acceptable to Agent) and as of the date thereof whether there exists an event or circumstance which constitutes a Default or Event of Default under the Loan Documents executed and delivered by, or applicable to, Guarantor, and if such Default or an Event of Default exists, the nature thereof, the period of time it has existed and the action then being taken to remedy the same.

(c) Borrower will furnish, or cause to be furnished, to Agent on or before thirty (30) days after the end of each calendar month and on or before forty five (45) days after the end of each calendar quarter the following items, accompanied by an Officer’s Certificate stating that such items are true, correct, accurate, and complete and fairly present the financial condition and results of the operations of Borrower and the Property (subject to normal year‑end adjustments) as applicable: (i) a rent roll for the subject month or quarter containing the names of all tenants at the Property, the terms and expiration date of their respective leases, the space occupied, the rents payable and the securities deposited thereunder, annualized expense reimbursement income detail paid by each tenant, together with the name of any lease guarantor thereof; (ii) a quarterly leasing status report addressing those items more fully described in Schedule VIII attached hereto; (iii) monthly, quarterly and year‑to‑date operating statements (including Capital Expenditures) prepared for each calendar month or quarter, as applicable, noting Net Operating Income, Gross Income from Operations, and Operating Expenses (not including any contributions to the Replacement Reserve Account), and, upon Agent’s request, other information necessary and sufficient to fairly represent the financial position and results of operation of the Property during such calendar month or quarter, as applicable, and containing a comparison of budgeted income and expenses and the actual income and expenses together with a detailed explanation of any variances of ten percent (10%) or more between budgeted and actual amounts for such periods, all in form satisfactory to Agent; and (iv) a calculation reflecting the annual Debt Yield as of the last day of such quarter, as applicable.

(d) Borrower has heretofore provided an Annual Budget for the 2017 Fiscal Year which Annual Budget Agent has approved and shall be deemed the Approved Annual Budget for such Fiscal Year. For the 2018 Fiscal Year and each Fiscal Year thereafter, Borrower shall submit to Agent an Annual Budget not later than thirty (30) days prior to the commencement of such period or Fiscal Year in form reasonably satisfactory to Agent. The Annual Budget shall be subject to Agent’s approval, such approval not to be unreasonably withheld, denied, delayed or conditioned and to be subject to the Deemed Consent Mechanics (each such Annual Budget, an “Approved Annual Budget”). In the event that Agent objects to a proposed Annual Budget submitted by Borrower which requires the approval of Agent hereunder, Agent shall advise Borrower of such objections within fifteen (15) days after receipt thereof (and deliver to Borrower a reasonably detailed description of such objections) and Borrower shall promptly revise such Annual Budget and resubmit the same to Agent. Agent shall advise Borrower of any objections to such revised Annual Budget within ten (10) days after receipt thereof (and deliver to Borrower a reasonably detailed description of such objections) and Borrower shall promptly revise the same in accordance with the process described in this subsection until Agent approves the Annual Budget. Until such time that Agent approves a proposed Annual Budget that requires the approval of Agent hereunder, the most recently Approved Annual Budget shall apply; provided that, such Approved Annual

USActive 36631986.12 -97-

Budget shall be adjusted to reflect actual increases in Taxes, Insurance Premiums, payroll, utilities, vendor contracts and Other Charges.

(e) In the event that Borrower must incur an extraordinary Operating Expense or Capital Expenditure not set forth in the Approved Annual Budget (each an “Extraordinary Expense”), then Borrower shall promptly deliver to Agent a reasonably detailed explanation of such proposed Extraordinary Expense for Agent’s approval (which approval shall not be unreasonably withheld, conditioned or delayed, and shall also be subject to the Deemed Consent Mechanics).

(f) If, at the time a Disclosure Document is being prepared for a Securitization, Agent reasonably expects that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Property alone or the Property and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Agent upon request, at no or de minimis cost or expense to Borrower: (i) the selected financial data or, if applicable, Net Operating Income for Borrower and the Property for the most recent Fiscal Year and interim period (or such longer period as may be required by Regulation S‑K if the Loan is not treated as a non‑recourse loan under Instruction 3 for Item 1101(k) of Regulation AB) meeting the requirements and covering the time periods specified in Section 301 of Regulation S‑K and Item 1112 of Regulation AB, if Agent reasonably expects that the principal amount of the Loan together with any related Loans as of the cut‑off date for such Securitization may, or if the principal amount of the Loan together with any related Loans as of the cut‑off date for such Securitization and at any time during which the Loan and any related Loans are included in a Securitization does, equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included, as applicable, in the Securitization, or (ii) the financial statements required under Item 1112(b)(2) of Regulation AB, if Agent expects that the principal amount of the Loan together with any related Loans as of the cut‑off date for such Securitization may, or if the principal amount of the Loan together with any related Loans as of the cut‑off date for such Securitization and at any time during which the Loan and any related Loans are included in a Securitization does, equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included, as applicable, in the Securitization. To the extent required to be delivered in accordance with the preceding sentence, such financial data or financial statements shall be furnished to Agent (A) within ten (10) Business Days after notice from Agent in connection with the preparation of Disclosure Documents for the Securitization, (B) not later than forty‑five (45) days after the end of each fiscal quarter of Borrower and (C) not later than one hundred twenty (120) days after the end of each Fiscal Year of Borrower; provided, however, that Borrower shall not be obligated to furnish financial data or financial statements pursuant to clauses (B) or (C) of this sentence with respect to any period for which a filing pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) is not required. If requested by Agent, Borrower shall use commercially reasonable efforts, at no cost or expense to Borrower, to furnish to Agent financial data and/or financial statements for any Tenant of the Property if, in connection with a Securitization, Agent reasonably expects there to be, with respect to such Tenant or group of Affiliated Tenants, a concentration within all of the mortgage loans included or expected to be included, as applicable, in the Securitization such that such Tenant or group of affiliated Tenants would constitute a Significant Obligor. All financial data and financial

USActive 36631986.12 -98-

statements provided by Borrower hereunder pursuant to this Section 5.1.11(f) shall be prepared in accordance with GAAP or Tax Basis Accounting, in each case, consistently applied, and shall meet the requirements of Regulation S‑K or Regulation S‑X, as applicable, Regulation AB and other applicable legal requirements. All financial statements referred to in this Section 5.1.11(f) hereof shall be audited by independent accountants of Borrower reasonably acceptable to Agent in accordance with Regulation AB, Regulation S‑K or Regulation S‑X, as applicable, and all other applicable legal requirements, shall be accompanied by the manually executed report of the independent accountants thereon, which report shall meet the requirements of Regulation S‑K or Regulation S‑X, as applicable, Regulation AB and all other applicable legal requirements, and shall be further accompanied by a manually executed written consent of the independent accountants, in form and substance reasonably acceptable to Agent, to the inclusion of such financial statements in any Disclosure Document and any Exchange Act Filing and to the use of the name of such independent accountants and the reference to such independent accountants as “experts” in any Disclosure Document and Exchange Act Filing, all of which shall be provided at the same time as the related financial statements are required to be provided. All financial data and financial statements (audited or unaudited) provided by Borrower under this Section 5.1.11(gf) shall be accompanied by an Officer’s Certificate, which certification shall state that such financial statements meet the requirements set forth in this Section 5.1.11(g). If requested by Agent, each Borrower shall provide Agent, promptly upon request, at no or de minimis cost or expense to Borrower, with any other or additional financial statements, or financial, statistical or operating information, as Agent shall reasonably determine to be required pursuant to Regulation S‑K or Regulation S‑X, as applicable, Regulation AB or any amendment, modification or replacement thereto or other legal requirements in connection with any Disclosure Document or any Exchange Act filing in connection with or relating to a Securitization. In the event Agent reasonably determines, in connection with a Securitization, that the financial data and financial statements required in order to comply with Regulation S‑K or Regulation S‑X, as applicable, Regulation AB or any amendment, modification or replacement thereto or other legal requirements are other than as provided herein, then notwithstanding the provisions of this Section 5.1.11(f), Agent may request, and Borrower shall use commercially reasonable efforts to promptly provide, at no or de minimis cost or expense to Borrower, such other financial data and financial statements as Agent reasonably determines to be necessary or appropriate for such compliance.

(g) Reserved.

(h) Borrower shall furnish to Agent, within ten (10) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information with respect to the operation of the Property and the financial affairs of Borrower as may be reasonably requested by Agent, provided such request may not modify the existing delivery requirements under this Section 5.1.11 or materially burden the Borrower.

(i) Borrower shall use commercially reasonable efforts to furnish to Agent, within ten (10) Business Days after Agent’s request (or as soon thereafter as may be reasonably possible), financial and sales information from any Tenant designated by Agent (to the extent such financial and sales information is required to be provided under the applicable Lease and the same is received by Borrower after request therefore).

USActive 36631986.12 -99-

(j) Any reports, statements or other information required to be delivered under this Agreement shall be delivered in electronic form. Borrower agrees that Agent may disclose information regarding the Property and Borrower that is provided to Agent pursuant to this Section 5.1.11 in connection with any Securitization to such parties requesting such information in connection with such Securitization.

(k) Breach. It shall be an Event of Default if any of the following shall occur: (i) any failure of Borrower to provide to Agent any of the financial statements, certificates, reports or information of Borrower or Guarantor (the “Required Records”) required by this Section 5.1.11 within the applicable time periods set forth in this Section 5.1.11, if such failure continues for fifteen (15) days after written notice thereof, or (ii) in the event any Required Records shall be materially inaccurate or false and Borrower had knowledge of same at the time such Required Records was provided by Borrower, or (iii) in the event of the failure of Borrower to permit Agent or its representatives to inspect said books, records and accounts upon request of Agent as required by this Section 5.1.11.

5.1.12 Business and Operations. Borrower will continue to engage in the businesses presently conducted by it as and to the extent the same are necessary for the ownership, maintenance, management and operation of the Property. Borrower will qualify to do business and will remain in good standing under the laws of each jurisdiction as and to the extent the same are required for the ownership, maintenance, management and operation of the Property. Borrower shall keep and maintain all Licenses necessary for the operation of the Property and each portion thereof for its intended uses and otherwise as a commercial office building.

5.1.13 Title to the Property. Borrower will warrant and defend (a) the title to the Property and every part thereof, subject only to Permitted Encumbrances, and (b) the validity and priority of the Lien of the Building Loan Mortgage and the Assignment of Leases, subject only to Permitted Encumbrances, in each case against the claims of all Persons whomsoever. Borrower shall reimburse Agent and Lender for any Losses incurred by Agent or Lender if an interest in the Property, other than as permitted hereunder, is claimed by another Person.

5.1.14 Costs of Enforcement. In the event (a) that the Building Loan Mortgage is foreclosed in whole or in part or that the Building Loan Mortgage is put into the hands of an attorney for collection, suit, action or foreclosure, (b) of the foreclosure of any mortgage prior to or subsequent to the Building Loan Mortgage in which proceeding Agent or Lender is made a party, or (c) of a Bankruptcy Action related to Borrower or any Principal or an assignment by Borrower or any Principal for the benefit of its creditors, Borrower, on behalf of itself and its successors and assigns, agrees that it/they shall be chargeable with and shall pay all costs of collection and defense, including attorneys’ fees and expenses, and court costs, incurred by Agent, Lender or Borrower in connection therewith and in connection with any appellate proceeding or post‑judgment action involved therein, together with all required service or use Taxes.

USActive 36631986.12 -100-

5.1.15 Estoppel Statement.

(a) After request by Agent, and no more than once per calendar quarter so long as no Event of Default has occurred and is continuing, Borrower shall within ten (10) days furnish Agent with a statement, duly acknowledged and certified, setting forth (i) the original principal amount of the Loan, (ii) the Outstanding Principal Balance, (iii) the Interest Rate of the Loan, (iv) the date installments of interest and/or principal were last paid, (v) any offsets or defenses to the performance of the Obligations, if any, and (vi) that the Note, this Agreement, the Building Loan Mortgage and the other Loan Documents are valid, legal and binding obligations of Borrower and have not been modified or if modified, giving particulars of such modification.

(b) Borrower shall deliver to Agent upon request, tenant estoppel certificates from each commercial Tenant leasing space at the Property in form and substance reasonably satisfactory to Agent (or on such form required under the applicable Lease); provided that Borrower shall not be required to deliver such certificates more frequently than one (1) time in any calendar year and failure to provide such estoppel shall not be a Default hereunder so long as Borrower has used commercially reasonable efforts to obtain such estoppel (which efforts shall not include bringing any litigation against any Tenant).

5.1.16 Reserved.

5.1.17 Loan Proceeds. Borrower shall use the proceeds of the Loan received by it on the Closing Date only for the purposes set forth in Section 2.1.4.

5.1.18 Performance by Borrower. Borrower shall in a timely manner observe, perform and fulfill each and every covenant, term and provision of each Loan Document executed and delivered by, or applicable to, Borrower and shall not enter into or otherwise suffer or permit any amendment, waiver, supplement, termination or other modification of any Loan Document executed and delivered by, or applicable to, Borrower without the prior written consent of Agent.

5.1.19 Confirmation of Representations. Borrower shall deliver, in connection with any Securitization, certificates of the relevant Governmental Authorities in all relevant jurisdictions indicating the good standing and qualification of Borrower as of the date of the Securitization.

5.1.20 No Joint Assessment. Borrower shall not suffer, permit or initiate the joint assessment of the Property or any portion thereof (a) with any other real property constituting a tax lot separate from the Property, and (b) which constitutes real property with any portion of the Property which may be deemed to constitute personal property, or any other procedure whereby the Lien of any Taxes which may be levied against such personal property shall be assessed or levied or charged to such real property portion of the Property.

5.1.21 Leasing Matters.

(a) Borrower shall use commercially reasonable efforts to cause all units/suites on the Property to be leased based on the Minimum Leasing Guidelines and in all events at not less

USActive 36631986.12 -101-

than prevailing market rental rates from time to time, taking into account market standard rental concessions, rent abatement and free rent.

(b) Each Major Lease shall be subject to Agent’s reasonable written approval not to be unreasonably withheld, conditioned or delayed, and which approval shall be subject to the Deemed Consent Mechanism, prior to Borrower’s execution of any such Major Lease (or any expansion, renewal or modification of such Major Lease, or any cancellation or termination of any such Major Lease). All non‑Major Leases (or any expansion, renewal or modification of such non‑Major Leases) shall not require Agent’s prior approval so long as such non‑Major Leases (i) comply with the Minimum Leasing Guidelines and (ii) are prepared on the lease form delivered by Borrower and approved by Agent subject to changes negotiated by Borrower that are not inconsistent with the Minimum Leasing Guidelines. Without limitation of the foregoing, all leases shall include estoppel, subordination, attornment and mortgagee protection provisions consistent with the lease form approved by Agent with such changes thereto as are customary for similar transactions. Borrower shall deliver to Agent true, complete and correct copies of any proposed Lease (or proposed expansion, renewal or modification of a Lease) requiring Agent’s approval, which approval shall not be unreasonably withheld, conditioned or delayed, and shall be subject to the Deemed Consent Mechanism. Agent shall not charge any fee for any such approval, and Agent’s legal fees for review of such Lease shall not exceed $5,000 per Lease. Notwithstanding anything to the contrary in the foregoing, Agent has preapproved the EDC Lease, the NY Liquidation Bureau Lease, and the ACS Lease provided that such Leases satisfy clause (ii) above.

(c) In the event that a Major Lease provides a “sole discretion” standard for subleasing/assignment approval on the part of the Borrower, Borrower shall not permit or consent to any assignment or sublease of any Major Lease without Agent’s prior written approval.

(d) Borrower (i) shall observe and timely perform all obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (ii) shall enforce the terms, covenants and conditions contained in the Leases upon the part of the Tenant thereunder to be observed or performed in a commercially reasonable manner and in a manner not to impair the value of the Property involved, except that Borrower shall not terminate, or accept the surrender by a Tenant of, any Lease without Agent’s consent, except in the case of a Tenant monetary default in which case Borrower shall be entitled to settle disputes with such Tenant, which settlement may, unless such Lease is a Major Lease (in which case any such settlement shall require Agent’s consent, which consent shall not be unreasonably withheld, conditioned or delayed and shall be subject to the Deemed Consent Mechanics), include termination of the applicable Lease; (iii) shall not collect any of the Rents more than one (1) month in advance (other than security deposits required pursuant to such Lease); (iv) shall not execute any other assignment of lessor’s interest in the Leases or the Rents (except as contemplated by the Loan Documents); (v) shall not alter, modify or change the terms of the Leases in a manner not permitted by the provisions of the Loan Documents; and (vi) shall execute and deliver at the request of Agent all such further assurances, confirmations and assignments in connection with the Leases as Agent shall from time to time reasonably require. Notwithstanding anything to the contrary contained herein, Borrower shall not enter into a Lease of all or substantially all of the Property or all or substantially all of any building located on the Property without Agent’s prior written consent. Agent shall have the right to require each new

USActive 36631986.12 -102-

Tenant that does not use the lease form approved by Agent to execute and deliver to Agent a subordination, non‑disturbance of possession and attornment agreement in form, content and manner of execution reasonably acceptable to Agent.

(e) Borrower shall furnish Agent with true, correct and complete copies of all Leases, amendments thereof and any related agreements promptly following execution thereof.

(f) Borrower shall promptly notify Agent, in writing, of any defaults by any tenant or lease guarantor under a Major Lease after Borrower becomes aware of the same.

5.1.22 Alterations. Borrower shall obtain Agent’s prior written consent to any alterations to any Improvements (other than alterations specifically allowed pursuant to the terms of this Agreement or covered by Reserve Funds), which consent shall not be unreasonably withheld, conditioned or delayed, and shall be subject to the Deemed Consent Mechanics, except with respect to any alterations to any Improvements which may have a material adverse effect on Borrower’s financial condition, the value of the Property or any portion thereof or the Net Operating Income. Notwithstanding the foregoing, Agent’s consent shall not be required in connection with any alterations that will not have a material adverse effect on Borrower’s financial condition, the value of the Property or any portion thereof or the Net Operating Income; provided that (a)(i) such alterations are either work performed pursuant to the terms of any Lease approved or deemed approved (or for which Agent’s approval is not required hereunder) in accordance with the terms hereof, or the costs for such alterations either constitute Approved Capital Expenses, Approved Leasing Expenses, Spec Buildout Expenses or Make Ready Expenses or otherwise are adequately covered in the current Approved Annual Budget, (ii) do not adversely affect in any material manner any structural component of any Improvements, any utility or HVAC system contained in any Improvements or the exterior of any building constituting a part of any Improvements and (iii) except with regard to such alterations that constitute Approved Capital Expenses, Approved Leasing Expenses, Spec Buildout Expenses or Make Ready Expenses, the aggregate cost thereof does not exceed Five Hundred Thousand and No/100 Dollars ($500,000.00) (the “Threshold Amount”), or (b) are performed in connection with Restoration after the occurrence of a Casualty in accordance with the terms and provisions of this Agreement.

5.1.23 Operation of Property.

(a) In the event that the Management Agreement expires or is terminated (without limiting any obligation of Borrower to obtain Agent’s consent to any termination or modification of the Management Agreement in accordance with the terms and provisions of this Agreement), Borrower shall promptly enter into a Replacement Management Agreement with Manager or another Qualified Manager, as applicable. In the event that the Leasing Agreement (Newmark) expires or is terminated (without limiting any obligation of Borrower to obtain Agent’s consent to any termination or modification of the Leasing Agreement in accordance with the terms and provisions of this Agreement), Borrower shall promptly enter into a Replacement Leasing Agreement with Leasing Agent or another Qualified Leasing Agent, as applicable.

USActive 36631986.12 -103-

(b) Borrower shall cause the capital improvement projects at the Property to be managed, in all material respects, in accordance with the Project Management Agreement.

(A) (i) promptly perform and/or observe in all material respects all of the covenants and agreements required to be performed and observed by it under the Management Agreement and use commercially reasonable efforts to preserve and to keep unimpaired its material rights thereunder; (ii) promptly notify Agent of any material default under the Management Agreement of which it is aware; (iii) if requested by the Agent, promptly deliver to Agent a copy of each material financial statement received by it under the Management Agreement and, upon the reasonable request of Agent, any business plan, capital expenditures plan, notice, report and estimate received by it under the Management Agreement; and (iv) enforce the performance and observance of all of the covenants and agreements required to be performed and/or observed by Manager under the Management Agreement, in a commercially reasonable manner.

(B) (i) promptly perform and/or observe in all material respects all of the covenants and agreements required to be performed and observed by it under the Leasing Agreement and do all things necessary to preserve and to keep unimpaired its material rights thereunder; (ii) promptly notify Agent of any material default under the Leasing Agreement of which it is aware; (iii) if reasonably requested by the Agent, promptly deliver to Agent a copy of each material financial statement, business plan, capital expenditures plan, notice, report and estimate received by it under the Leasing Agreement, to the extent applicable; and (iv) enforce in all material respects the performance and observance of all of the covenants and agreements required to be performed and/or observed by Leasing Agent under the Leasing Agreement, in a commercially reasonable manner. Notwithstanding anything to the contrary contained in this Agreement, the covenants in this Section 5.1.23(c)(B) with respect to the Leasing Agent and the Leasing Agreement shall not be applicable except during such time as Borrower shall have engaged a Leasing Agent and entered into a Leasing Agreement in accordance with the terms and conditions of this Agreement.

(C) (i) promptly perform and/or observe in all material respects all of the covenants and agreements required to be performed and observed by it under the Project Management Agreement and do all things necessary to preserve and to keep unimpaired its material rights thereunder; (ii) promptly notify Agent of any material default under the Project Management Agreement of which it is aware; (iii) if reasonably requested by the Agent, promptly deliver to Agent a copy of each material financial statement, business plan, capital expenditures plan, notice, report and

USActive 36631986.12 -104-

estimate received by it under the Project Management Agreement, to the extent applicable; and (iv) enforce in all material respects the performance and observance of all of the covenants and agreements required to be performed and/or observed by Project Manager under the Project Management Agreement, in a commercially reasonable manner.

(d) If (i) an Event of Default occurs and is continuing, (ii) the Manager shall be the subject of a Bankruptcy Action or become insolvent, (iii) a material default occurs under the Management Agreement beyond any applicable grace and cure periods or Manager has engaged in gross negligence, fraud or willful misconduct, or (iv) Control of Manager has changed, in each event from what it was on the Closing Date, Borrower shall, at the request of Agent, terminate the Management Agreement and replace the Manager with a manager approved by Agent on terms and conditions satisfactory to Agent, it being understood and agreed that (x) the management fee for such replacement manager shall not exceed the then prevailing market rates (and in any event shall not exceed three percent (3%) of Gross Income from Operations per annum, from time to time), and (y) Agent shall not be liable for or obligated to pay any termination fee or other penalty in connection with such termination.

(e) With respect to each Leasing Agreement, if (i) an Event of Default occurs and is continuing, (ii) the Leasing Agent thereunder shall be the subject of a Bankruptcy Action or become insolvent, (iii) a material default occurs under such Leasing Agreement beyond any applicable grace and cure periods, or such Leasing Agent has engaged in gross negligence, fraud or willful misconduct, or (iv) Control of such Leasing Agent has changed, in each event from what it was on the Closing Date, Borrower shall, at the request of Agent, terminate such Leasing Agreement and (with respect to the Leasing Agreement (Newmark) or any Replacement Leasing Agreement with respect thereto) replace the applicable Leasing Agent with a leasing agent approved by Agent on terms and conditions reasonably satisfactory to Agent, it being understood and agreed that (x) the leasing commissions for such replacement leasing agent shall not exceed the then prevailing market rates, and (y) Agent shall not be liable for or obligated to pay any termination fee or other penalty in connection with such termination. Notwithstanding anything to the contrary contained in this Agreement, the covenants in this Section 5.1.23(e) with respect to the Leasing Agent and the Leasing Agreement shall not be applicable except during such time as Borrower shall have engaged a Leasing Agent and a Leasing Agreement is in effect in accordance with the terms and conditions of this Agreement.

(f) If (i) an Event of Default occurs and is continuing, (ii) the Project Manager shall be the subject of a Bankruptcy Action or become insolvent, (iii) a material default occurs under the Project Management Agreement beyond any applicable grace and cure periods, or Project Manager has engaged in gross negligence, fraud or willful misconduct, or (iv) Control of Project Manager has changed, in each event from what it was on the Closing Date, Borrower shall, at the request of Agent, terminate the Project Management Agreement and replace the Project Manager with a project manager approved by Agent on terms and conditions reasonably satisfactory to Agent, it being understood and agreed that (x) the project management fees for such replacement project manager shall not exceed the then prevailing market rates, and (y) Agent shall not be liable for or obligated to pay any termination fee or other penalty in connection with such termination.

USActive 36631986.12 -105-

(g) All Material Agreements shall be subject to the prior review and approval, not to be unreasonably withheld, of Agent.

(h) In the event any replacement Property Manager, Leasing Agent or Project Manager is an Affiliate of Borrower, Borrower shall deliver to Agent an Additional Insolvency Opinion including a pairing with respect to such Person, such opinion to be acceptable to Agent.

5.1.24 No Credits on Account of the Obligations. Borrower will not claim or demand or be entitled to any credit or credits on account of the Obligations for any payment of Property Taxes assessed against the Property and no deduction shall otherwise be made or claimed from the assessed value of the Property for real estate Tax purposes because of the Loan Documents or the Obligations. If Legal Requirements or other laws, orders, requirements or regulations require such claim, credit or deduction, Agent may, by written notice to Borrower of not less than ninety (90) days, declare the Obligations immediately due and payable.

5.1.25 Personal Property. Borrower shall cause all of its personal property, fixtures, attachments and equipment delivered upon, attached to or used in connection with the operation of the Property to always be located at the Property and shall be kept free and clear of all Liens, encumbrances and security interests, except Permitted Encumbrances.

5.1.26 Appraisals. Agent shall have the right to obtain a new or updated appraisal of the Property (and/or any portions thereof) from time to time, provided, however, that so long as no Event of Default has occurred Agent shall do so with respect to the same portion of the Property not more often than once in every twelve (12) month period. Borrower shall cooperate with Agent in this regard. If the appraisal is obtained to comply with this Agreement or any applicable law or regulatory requirement, or bank or lender policy promulgated to comply therewith, or if an Event of Default exists, Borrower shall pay for any such appraisal upon Agent’s request.

5.1.27 Financing Statements. Borrower, at its sole cost and expense, shall at all times cause the Building Loan Mortgage and the Assignment of Leases, together with any UCC‑1 financing statements required to be filed in connection therewith, to be recorded, registered or filed in the appropriate public records, and any amendments or supplements hereto and thereto, and, if requested by Agent, any instruments of assignment hereof or thereof, to be recorded, registered and filed, as applicable, and to be kept recorded, registered and filed, in such manner and in such places, shall pay all recording, registration and filing fees and taxes and other charges, including any recording, transfer or intangible personal property tax or similar imposition, with respect thereto, and shall comply with all applicable Legal Requirements in order to fully and effectively establish, preserve, perfect and protect Agent’s first priority security interest in the Property and the Collateral, subject only to Permitted Encumbrances and the Liens created by the Loan Documents. Borrower hereby authorizes Agent to file UCC‑1 financing and continuation statements with respect to the Property and the Collateral.

5.1.28 Intentionally Omitted.

USActive 36631986.12 -106-

5.1.29 ERISA.

(a) Borrower further covenants and agrees to deliver to Agent such certifications or other evidence from time to time throughout the term of the Loan, as may be requested by Agent in its sole discretion that (i) Borrower is not an “employee benefit plan” as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA, a “plan” as defined in and subject to the provisions of Section 4975 of the Code an entity whose assets are treated as “plan assets” for purposes of ERISA or the Code or a “governmental plan” within the meaning of Section 3(32) of ERISA or any entity whose assets are treated as “plan assets” of a governmental plan or plans; (ii) Borrower is not subject to any state statute regulating investments of, or fiduciary obligations with respect to, governmental plans, in either case, subjecting Agent to liability for a violation of ERISA, the Code, a state statute or regulation or a similar law; and (iii) one or more of the following circumstances is true:

(i) equity interests in Borrower are publicly offered securities, within the meaning of 29 C.F.R. §2510.3–101(b)(2);

(ii) less than twenty‑five percent (25%) of each outstanding class of equity interests in Borrower is held by “benefit plan investors” within the meaning of Section 3(42) of ERISA; or

(iii) Borrower qualifies as an “operating company” or a “real estate operating company” within the meaning of 29 C.F.R. §2510.3‑101(c) or (e).

(b) Borrower further covenants and agrees that none of Borrower, Guarantor or their ERISA Affiliates shall be required to contribute to any Multiemployer Plan or any Pension Plan, or shall be a “contributing sponsor” (as such term is defined in Section 4001 of ERISA) in any Multiemployer Plan or Pension Plan; and none of Borrower, Guarantor or any ERISA Affiliate shall have any contingent liability with respect to any post-retirement “employee welfare benefit plan” (as such term is defined in Section 3(1) of ERISA), except as previously disclosed to Agent in writing according to Section 4.1.9.

5.1.30 CapEx.

(a) Prior to entering into any construction or professional contracts related to the applicable Cap-Ex where the total cost of such contract is over $1,000,000.00 (each, a “Cap-Ex Contract”), Borrower will deliver to Agent a draft of such Cap-Ex Contract for Lender’s review and approval, such approval not to be unreasonably withheld, denied, delayed or conditioned and to be subject to the Deemed Consent Mechanics. If requested by Agent, Borrower will deliver “will-serve” letters from applicable counterparties under the Cap-Ex Contracts in excess of $1,000,000, whereby such contract counterparties have agreed to upon a continuing Event of Default, perform the applicable work for the benefit of Agent.

(b) To the extent Borrower Commences a project of Cap-Ex, Borrower shall diligently prosecute same to Completion in a good and workmanlike manner and in accordance with all Legal Requirements and the CapEx Budget.

USActive 36631986.12 -107-

(c) To the extent Borrower Commences any particular project that constitutes Make Ready Work, Borrower shall diligently prosecute same to Completion in a good and workmanlike manner and in accordance with all Legal Requirements and the Make Ready Budget.

5.1.31 Municipal Violations. Borrower shall use commercially reasonable efforts to cause each of the municipal violations listed on Schedule XIV to be removed as of record or “closed” within one hundred eighty (180) days of the Closing Date, which date shall be extended by Agent if despite its commercially reasonably efforts the Borrower is unable to remove or close the same.

5.1.32 Temporary Certificates of Occupancy. Borrower shall continue to keep all temporary certificates of occupancy with respect to the Property valid and in full force and effect, and Borrower shall use commercially reasonable efforts to obtain a new, valid, permanent certificate of occupancy for the Property from the New York City Department of Buildings. The terms and provisions of this Section 5.1.32 shall not be deemed to limit the other terms and conditions hereof or of the other Loan Documents.

5.1.33 EDC Space. Borrower shall use commercially reasonable efforts to remedy the matters (other than those caused by the demolition of any adjacent property) set forth in the letter attached to the Tenant estoppel delivered prior to closing by the New York City Economic Development Corporation.

Section 5.2 Negative Covenants. From the date hereof until payment and performance in full of the Obligations, Borrower covenants and agrees with Agent and Lender that it will not do, directly or indirectly, any of the following:

5.2.1 Operation of Property.

(a) Borrower shall not, without Agent’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed and shall be subject to the Deemed Consent Mechanics):

(i) (A) surrender, terminate or cancel the Management Agreement; provided, that Borrower may, without Agent’s consent, replace the Manager so long as the replacement manager is a Qualified Manager pursuant to a Replacement Management Agreement; (B) reduce or consent to the reduction of the term of the Management Agreement in any material respect; (C) increase or consent to the increase of the amount of any charges or fees under the Management Agreement in any material respect; or (D) otherwise modify, change, supplement, alter or amend, or waive or release any of its rights and remedies under, the Management Agreement in any material respect;

(ii) (A) enter into a leasing agreement other than the Leasing Agreement (Savanna), the Leasing Agreement (Newmark) or a Replacement Leasing Agreement, or (B) enter into a project management agreement other than the Project Management Agreement (Savanna). Any Leasing Agent engaged by Borrower shall

USActive 36631986.12 -108-

enter into an assignment of leasing agreement and subordination of leasing fees on Agent’s then standard form or otherwise in a form reasonably acceptable to Agent. Any Project Manager engaged by Borrower shall enter into an assignment of project management agreement and subordination of project management fees on Agent’s then standard form or otherwise in a form reasonably acceptable to Agent;

(iii) Except as permitted pursuant to the terms of the Leasing Agreement (or otherwise with the consent of the Leasing Agent), (A) surrender, terminate or cancel the Leasing Agreement; provided, that Borrower may, without Agent’s consent, replace the Leasing Agent so long as the replacement leasing agent is a Qualified Leasing Agent pursuant to a Replacement Management Agreement; (B) reduce or consent to the reduction of the term of the Leasing Agreement in any material respect; (C) increase or consent to the increase of the amount of any charges or fees under the Leasing Agreement in any material respect; or (D) otherwise modify, change, supplement, alter or amend, or waive or release any of its rights and remedies under, the Leasing Agreement in any material respect. Notwithstanding anything to the contrary contained in this Agreement, the covenants in this Section 5.2.1(a)(iii) with respect to the Leasing Agent and the Leasing Agreement shall not be applicable except during such time as Borrower shall have engaged a Leasing Agent and a Leasing Agreement is in effect in accordance with the terms and conditions of this Agreement; and

(iv) Except as permitted pursuant to the terms of the Project Management Agreement (or otherwise with the consent of the Project Manager), (A) reduce or consent to the reduction of the term of the Project Management Agreement in any material respect; (B) increase or consent to the increase of the amount of any charges or fees under the Project Management Agreement in any material respect; or (C) otherwise modify, change, supplement, alter or amend, or waive or release any of its rights and remedies under, the Project Management Agreement in any material respect.

(b)

Document Metadata

Table of Contents

BUILDING LOAN AGREEMENT Dated as of March 6, 2017 among MORGAN STANLEY MORTGAGE CAPITAL HOLDINGS LLC, as Agent, and THE LENDERS NAMED HEREIN, as Lenders