Exhibit 10.1

ACQUISITION LOAN NOTE

FOR VALUE RECEIVED, the undersigned, DEAN OWNER LLC, a Delaware limited liability company, having an office at 4611 Twelfth Avenue, Suite 1L, Brooklyn, New York 11219 (the “Borrower”), promises to pay to VALLEY NATIONAL BANK (the “Lender”), at the offices of Valley National Bank, as administrative agent (the “Administrative Agent”) at 1 Pennsylvania Plaza, 46th Floor, New York, New York 10119 or at such other place as the holder hereof may from time to time appoint in writing, the Principal Amount as hereinafter provided, together with interest thereon as provided herein. Defined terms used in this Acquisition Loan Note (the “Note”) shall have the meanings ascribed thereto in Section 12 hereof or if not defined in Section 12 hereof, in the Credit Loan Agreement.

1.    Principal Payments. The Borrower agrees to pay the Principal Amount by making a payment equal to the entire unpaid Principal Amount on the Maturity Date.

2.    Interest. The Principal Amount shall bear interest (computed on the basis of a 360-day year for the actual number of days involved) commencing on the date hereof at a fluctuating rate per annum equal to 4.00% above the Term SOFR in effect on the first day of the applicable Interest Period; provided, however, that in no event shall the interest rate applicable to the Principal Amount outstanding hereunder be less than 5.50% per annum. Notwithstanding the foregoing, in the event an Interest Rate Protection Product is entered into with respect to this Note which does not contemplate a 5.50% floor rate for the floating rate portion of the interest rate swap, then the 5.50% floor rate designated in the preceding sentence shall not apply while such Interest Rate Protection Product is in effect. Interest shall be payable in arrears on the First Periodic Interest Date and on each Periodic Interest Date thereafter occurring, and on the Maturity Date.

(a)         Upon Borrower’s request, Lender shall give notice to Borrower of the Term SOFR as determined or adjusted for each Interest Period in accordance herewith, which determination or adjustment shall be conclusive absent manifest error. All interest hereunder on any advance shall be computed on a daily basis based upon the outstanding principal amount of all advances hereunder as of the applicable date of determination.

(b)         In the event the Administrative Agent shall have determined that by reason of circumstances affecting the Term SOFR, adequate and reasonable means do not exist for ascertaining the Term SOFR for any Interest Period with respect to any advance hereunder (unless Benchmark Replacement (as defined below) is applicable, in which case the interest rate shall be determined as set forth in Section 4 below), the per annum rate of interest (the “Alternate Rate”) applicable to such advance during such Interest Period shall be equal to 1.00% above the Wall Street Journal Prime Rate, subject to the minimum rate of interest specified in the first paragraph of this Section.

(c)         If, after the date of this Note, Lender shall determine (which determination shall be final and conclusive absent manifest error) that any Change in Law shall make it impossible or unlawful for Lender to make, fund or maintain SOFR Advances, then Lender shall notify Borrower in writing. From the date of such notice until Lender notifies Borrower in writing that the circumstances giving rise to such determination no longer apply, (i) any obligation of Lender contained herein or in any agreement of Lender to make available SOFR Advances shall immediately be suspended, and (ii) any such SOFR Advances then outstanding shall instead bear interest, at Lender’s option, at the Alternative Rate, such change taking effect either (x) on the last day of the then current Interest Period if Lender may lawfully continue to maintain SOFR Advances to such day, or (y) immediately if Lender may not lawfully continue to maintain SOFR Advances (provided the Lender shall indicate its election of (x) or (y) by notice to the Borrower together with the date such change shall take effect). Upon the occurrence of any of the foregoing events, Borrower shall pay to Lender immediately upon demand such amounts as may be reasonably necessary to compensate Lender for any fines, fees, charges, penalties or other costs actually incurred or payable by Lender as a result thereof and which are attributable to any SOFR Advances made available to Borrower hereunder, and any reasonable allocation made by Lender among its operations shall be conclusive and binding upon Borrower.

(d)         Interest hereunder will be calculated based on the actual number of days that principal is outstanding over a year of 360 days. In no event will the rate of interest hereunder exceed the maximum rate allowed by law.

(e)         After the occurrence and during the continuance of an Event of Default, the Borrower shall pay interest at the Default Rate. After maturity, the Principal Amount and accrued interest thereon, shall, at the option of the Lender, be payable on demand.

For purposes hereof, the following terms shall have the following meanings:

“Business Day” shall mean any day that is not a Saturday, Sunday or other day on which banks in New York City are required or permitted to close; provided, when used in connection with determining Term SOFR, the term “Business Day” shall also exclude any day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.

“Floor” means a rate of interest equal to 1.50 %

“SOFR” means a rate per annum equal to the secured overnight financing rate for such Business Day published by the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate) on the website of the Federal Reserve Bank of New York, currently at http://www.newyorkfed.org (or any successor source for the secured overnight financing rate identified as such by the administrator of the secured overnight financing rate from time to time).

“SOFR Advance” shall mean an advance that bears interest at a rate based on Term SOFR.

“Term SOFR” shall mean, for any calculation with respect to a SOFR Advance, the Term SOFR Reference Rate for a tenor comparable to the applicable Interest Period on the day (such day, the “Periodic Term SOFR Determination Day”) that is two (2) Business Days prior to the first day of such Interest Period, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City time) on any Periodic Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date (as defined below) with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding Business Day is not more than three (3) Business Days prior to such Periodic Term SOFR Determination Day; provided, further, that if Term SOFR determined as provided above shall ever be less than the Floor, then Term SOFR shall be deemed to be the Floor. Notwithstanding the foregoing, in the event an Interest Rate Protection Product is entered into with respect to this Note which does not contemplate a floor rate for the floating rate portion of the interest rate swap, then the Floor designated in the preceding sentence shall not apply while such Interest Rate Protection Product is in effect.

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

“Term SOFR Reference Rate” shall mean the forward-looking term rate based on SOFR.

3.    Term SOFR Conforming Changes. In connection with the use or administration of Term SOFR, Lender shall have the right to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of Borrower or any other party to any other Loan Document. Lender shall promptly notify Borrower of the effectiveness of any Conforming Changes in connection with the use or administration of Term SOFR.

4.    Benchmark Replacement Setting. Notwithstanding anything to the contrary herein or in any other Loan Document:

(a)         Replacing Benchmarks. Upon the occurrence of a Benchmark Transition Event, the Benchmark Replacement will replace the then-current Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. on the tenth (10th) Business Day after the date notice of such Benchmark Replacement is provided to Borrower without any amendment to this Note or any other Loan Document, or further action or consent of Borrower. At any time that the administrator of the then-current Benchmark has permanently or indefinitely ceased to provide such Benchmark or such Benchmark has been announced by the regulatory supervisor for the administrator of such Benchmark pursuant to public statement or publication of information to be no longer representative of the underlying market and economic reality that such Benchmark is intended to measure and that representativeness will not be restored, Borrower may revoke any request for a borrowing of, or continuation of advances to be made or continued that would bear interest by reference to such Benchmark until Borrower’s receipt of notice from Lender that a Benchmark Replacement has replaced such Benchmark, and, failing that, Borrower will be deemed to have converted any such request into a request for a borrowing of or conversion to advances bearing interest at the Prime Rate.

(b)         Subsequent Rate Conversion. At any time following the effectiveness of a Benchmark Replacement in accordance with this Section, Lender shall have the right, by providing written notice to Borrower, to convert the then-current Benchmark to a different Alternative Rate in accordance with and subject to the conditions set forth in clause (1) of the definition of “Benchmark Replacement.” Such Alternative Rate shall be deemed to be a “Benchmark Replacement” hereunder and will replace the then-current Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. on the tenth (10th) Business Day after the date notice of such Benchmark Replacement is provided to Borrower without any amendment to this Note or any other Loan Document, or further action or consent of Borrower.

(c)         Benchmark Replacement Conforming Changes. In connection with the implementation and administration of a Benchmark Replacement, Lender will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Note or such other Loan Document.

(d)         Notices; Standards for Decisions and Determinations. Lender will promptly notify Borrower of (i) the implementation of any Benchmark Replacement and (ii) the effectiveness of any Conforming Changes; provided that any failure to so notify will not affect Lender’s rights hereunder. Any determination, decision or election that may be made by Lender pursuant to this Section, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action, will be conclusive and binding absent manifest error and may be made in its sole discretion and without consent from any other party hereto, except, in each case, as expressly required pursuant to this Section.

(e)         Unavailability of Tenor of Benchmark. At any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including the Term SOFR Reference Rate), then Lender may remove any tenor of such Benchmark that is unavailable or non-representative for Benchmark (including Benchmark Replacement) settings and (ii) Lender may reinstate any such previously removed tenor for Benchmark (including Benchmark Replacement) settings.

(f)         Disclaimer. Lender does not warrant or accept responsibility for, and shall not have any liability with respect to (a) the administration, submission, calculation of or any other matter related to the rates in the definition of “Term SOFR” or with respect to any component definition thereof or rates referenced in the definition thereof or any alternative, comparable or successor rate thereto (including any Benchmark or any Benchmark Replacement or the effect, implementation or composition of any Conforming Changes (defined above)) and including, without limitation, whether the composition or characteristics of any such alternative, successor or replacement reference rate, as it may or may not be adjusted pursuant hereto, will be similar to, or produce the same value or economic equivalence of, such Benchmark or any other Benchmark or have the same volume or liquidity as did such Benchmark or any other Benchmark prior to its discontinuance or unavailability, or (b) the impact or effect of such alternative, successor or replacement reference rate or Conforming Changes on any other financial products or agreements in effect or offered to any obligor or any of their respective affiliates, including, without limitation, any Interest Rate Protection Product.

(g)         Definitions.

“AMERIBOR” shall mean, for the corresponding tenor, the arithmetic average AMERIBOR benchmark interest rate as provided by American Financial Exchange, LLC as administrator of the benchmark (or a successor administrator) to, and published by, authorized distributors of AMERIBOR.

“Available Tenor” shall mean, as of any date of determination and with respect to the then-current Benchmark, as applicable, (x) if the then-current Benchmark is a term rate, any tenor for such Benchmark that is or may be used for determining the length of an Interest Period or (y) otherwise, any payment period for interest calculated with reference to such Benchmark, as applicable, pursuant to this Note as of such date.

“Benchmark” shall mean, initially, the Term SOFR Reference Rate; provided that if a Benchmark Transition Event has occurred with respect to the Term SOFR Reference Rate or the then-current Benchmark, the “Benchmark” shall mean the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate. Any reference to “Benchmark” shall include, as applicable, the published component used in the calculation thereof.

“Benchmark Replacement” shall mean, for any Available Tenor:

(1)         For purposes of clause (a) or (b) of this Section, any of the alternative rates set forth below, in any combination of choices or in such order of priority as Lender shall determine in its sole and absolute discretion and which is (i) administratively feasible for Lender to establish and provide to its customers, (ii) a primary rate being utilized by banks in the New York lending market, and (iii) generally used by Lender in its administration of loans held in its portfolio similar to the Loan (each, an “Alternative Rate”):

(i)         the sum of: (i) Daily Simple SOFR and (ii) an adjustment (which may be a positive or negative value or zero) that has been selected by Lender, giving due consideration to any evolving or then-prevailing market convention, including any applicable recommendations made by the Relevant Governmental Body, for U.S. dollar-denominated syndicated or bilateral credit facilities at such time; or

(ii)         the sum of (i) Daily Compounded SOFR and (ii) an adjustment (which may be a positive or negative value or zero) that has been selected by Lender, giving due consideration to any evolving or then-prevailing market convention, including any applicable recommendations made by the Relevant Governmental Body, for U.S. dollar-denominated syndicated or bilateral credit facilities at such time; or

(iii)         the sum of (i) Term BSBY and (ii) an adjustment (which may be a positive or negative value or zero) that has been selected by Lender, giving due consideration to any evolving or then-prevailing market convention, including any applicable recommendations made by the Relevant Governmental Body, for U.S. dollar-denominated syndicated or bilateral credit facilities at such time; or

(iv)         the sum of (i) AMERIBOR and (ii) an adjustment (which may be a positive or negative value or zero) that has been selected by Lender, giving due consideration to any evolving or then-prevailing market convention, including any applicable recommendations made by the Relevant Governmental Body, for U.S. dollar-denominated syndicated or bilateral credit facilities at such time; or

(v)         the sum of (i) any SOFR Average and (ii) an adjustment (which may be a positive or negative value or zero) that has been selected by Lender, giving due consideration to any evolving or then-prevailing market convention, including any applicable recommendations made by the Relevant Governmental Body, for U.S. dollar-denominated syndicated or bilateral credit facilities at such time; or

(vi)         any other reference rate reasonably selected by Lender that Lender in its sole discretion commences to offer to its customers generally; or

(vii)         if no available reference rate satisfies the requirements set forth in this paragraph 1 and in the provisos below, the Prime Rate;

provided that, in the case of clauses 1(iii), 1(iv), 1(v) or 1(vi) above, the relevant Alternative Rate is displayed on a screen or other information service selected by Lender in its reasonable discretion;

provided, further, that in the event any of the advances is hedged pursuant to one or more Interest Rate Protection Products (the “Hedged Exposure”), then the Benchmark Replacement for such Hedged Exposure shall have the meaning in effect from time to time ascribed to the “Floating Rate Option” under the relevant Confirmation(s) (as each of such terms is defined in the related Interest Rate Protection Products); and

provided, further, that, if the Benchmark Replacement as determined pursuant to clause (1) above would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Note and the other Loan Documents.

Notwithstanding the foregoing, in the event an Interest Rate Protection Product is entered into with respect to this Note which does not contemplate a floor rate for the floating rate portion of the interest rate swap, then the Floor designated in the preceding sentence shall not apply while such Interest Rate Protection Product is in effect.

“Benchmark Replacement Date” shall mean the earliest to occur of the following events with respect to the then-current Benchmark: (a) in the case of clause (a) of the definition of “Benchmark Transition Event”, the later of (i) the date of the public statement or publication of information referenced therein and (ii) the date on which the administrator of such Benchmark permanently or indefinitely ceases to provide all Available Tenors of such Benchmark; or (b) in the case of clause (b) of the definition of “Benchmark Transition Event”, the first date on which such Benchmark has been determined and announced by or on behalf of the administrator of such Benchmark or the regulatory supervisor for the administrator of such Benchmark to be non-representative of the underlying market and economic reality that such Benchmark is intended to measure and that representativeness will not be restored; provided that such non-representativeness, non-compliance or non-alignment will be determined by reference to the most recent statement or publication referenced in such clause (b) and even if any Available Tenor of such Benchmark continues to be provided on such date. For the avoidance of doubt, the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (a) or (b) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark.

“Benchmark Transition Event” shall mean, with respect to any then-current Benchmark, the occurrence of a public statement or publication of information by or on behalf of the administrator of the then-current Benchmark, the regulatory supervisor for the administrator of such Benchmark, the Board of Governors of the Federal Reserve System, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for such Benchmark, a resolution authority with jurisdiction over the administrator for such Benchmark or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark, announcing or stating that (a) such administrator has ceased or will cease on a specified date to provide all Available Tenors of such Benchmark, permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark or (b) all Available Tenors of such Benchmark are or will no longer be representative of the underlying market and economic reality that such Benchmark is intended to measure and that representativeness will not be restored.

“Conforming Changes” shall mean, with respect to either the use or administration of Term SOFR, or with respect to the use, administration, adoption or implementation of any Benchmark Replacement, any technical, administrative or operational changes (including without limitation changes to the definition of “Prime Rate”, the definition of “Business Day,” the definition of “Interest Period” or any similar or analogous definition, timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that Lender decides in its sole but reasonable discretion may be necessary or appropriate to reflect the adoption and implementation of any such rate or to permit the use and administration thereof by Lender in a manner substantially consistent with market practice (or, if Lender decides that adoption of any portion of such market practice is not administratively feasible or if Lender determines that no market practice for the administration of any such rate exists, in such other manner of administration as Lender reasonably decides is necessary in connection with the administration of this Note and the other Loan Documents and in a manner applied by Lender to loans held in its portfolio similar to the Loan).

“Daily Compounded SOFR” shall mean, for any day, SOFR, with interest accruing on a compounded daily basis, with the methodology and conventions for this rate (which will include compounding in arrears with a lookback) being established by Lender in accordance with the methodology and conventions for this rate recommended by the Relevant Governmental Body for determining “Daily Compounded SOFR” for bilateral business loans; provided, that if Lender decides that any such convention is not administratively feasible for Lender, then Lender may establish another convention in its reasonable discretion.

“Daily Simple SOFR” shall mean, for any day, SOFR, with the conventions for this rate (which will include a lookback) being established by Lender in accordance with the conventions for this rate recommended by the Relevant Governmental Body for determining “Daily Simple SOFR” for bilateral business loans; provided, that if Lender decides that any such convention is not administratively feasible for Lender, then Lender may establish another convention in its reasonable discretion.

“Relevant Governmental Body” shall mean the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or any successor thereto.

“SOFR Average” shall mean a rate per annum equal to any of the 30-day, 90-day or 180-day rolling compounded averages of SOFR published on such Business Day by the Federal Reserve Bank of New York (or a successor administrator of the compounded average SOFR rates) on the website of the Federal Reserve Bank of New York, currently at http://www.newyorkfed.org (or any successor source for the compounded average SOFR rates identified as such by the administrator of the compounded average SOFR rates from time to time).

“Term BSBY” shall mean, for the applicable corresponding tenor, the Bloomberg Short-Term Bank Yield Index provided by Bloomberg Index Services Limited as administrator of the benchmark (or a successor administrator).

5.    Extension Options. Subject to the terms and conditions set forth in the Credit Agreement, the Borrower shall have the option to extend the term of the Loan from the Initial Maturity Date to the First Extended Maturity Date and thereafter from the First Extended Maturity Date to the Second Extended Maturity Date.

6.    Prepayments. (a) Upon not less than ten (10) days prior written notice to the Administrative Agent, specifying the date of prepayment, the Borrower shall have the right to prepay the Principal Amount in whole, or in part, together with: (i) all accrued interest to the date of such prepayment, and (ii) any applicable Funding Loss, and/or Additional Interest, which may be due and payable under any Interest Rate Protection Product, if applicable, after giving effect to such prepayment. Each prepayment, other than a prepayment in connection with a casualty or condemnation or final repayment of the Loan, must equal at least the Minimum Prepayment Amount;

(b)    Amounts paid or prepaid will not be readvanced.

7.    General. Each payment under this Note, including without limitation, all payments and/or prepayments of principal and/or interest, shall be made by the Borrower to the Lender at the office of the Administrative Agent at 1 Pennsylvania Plaza, 46th Floor, New York, New York 10119 or at such other place as the Administrative Agent may from time to time appoint in writing in immediately available funds by 3:00 P.M., New York City time, on the due date for such payment. The failure of the Borrower to make any such payment by such time shall not constitute a default hereunder, provided that such payment is made on such due date, but any such payment made after 3:00 P.M., New York City time, on such due date shall be deemed to have been made on the next Business Day for the purpose of calculating interest on the amount outstanding on this Note. If any payment under this Note shall be due and payable on a day which is not a Business Day, the due date thereof shall be extended to the next Business Day (except as otherwise provided in the definition of Interest Period), and interest shall be payable at the applicable rate specified herein during such extension.

8.    Break Funding Indemnification. Borrower agrees to indemnify Lender against any liabilities, losses or out-of-pocket expenses, including, without limitation, any loss or expense sustained or incurred in liquidating or employing deposits from third parties, and any loss or expense incurred in connection with funds acquired to effect, fund or maintain any SOFR Advance (or any part thereof) which Lender sustains or incurs as a consequence of either (i) Borrower’s failure to make a payment on the due date thereof, (ii) Borrower’s revocation (expressly, by later inconsistent notices or otherwise) in whole or in part of any notice given to Lender to request, convert, renew or prepay any SOFR Advance, or (iii) Borrower’s payment or prepayment (whether voluntary, after acceleration of the maturity of this Note or otherwise) or conversion of any SOFR Advance on a day other than the last day of the applicable Interest Period. A notice as to any amounts payable pursuant to this paragraph given to Borrower by Lender shall, in the absence of manifest error, be conclusive and shall be payable upon demand. Borrower’s indemnification obligations hereunder shall survive the payment in full of the advances and all other amounts payable hereunder. Any sums payable to Lender hereunder from time to time is sometimes referred to as a “Funding Loss”. For clarity, the losses described in this Paragraph are intended to refer to “breakage fees” incurred by the Lender as a result of the situations described in clauses (i) – ‐(iii) above.

9.    Increased Costs; Yield Protection. On written demand, together with written evidence of the justification therefor, Borrower agrees to pay the Lender all direct costs incurred, any losses suffered or payments made by the Lender, as a result of any Change in Law (hereinafter defined), imposing any reserve, deposit, allocation of capital or similar requirement (including without limitation, Regulation D of the Board of Governors of the Federal Reserve System) on the Lender, its holding company or any of their respective assets relative to the Loan, in each case to the extent such amounts are charged to similarly situated borrowers of loans (similar to the Loan) made by Lender or its affiliates. “Change in Law” means the occurrence, after the date of this Note, 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) by any governmental authority; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall 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 Lender 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.

10.    Capital Adequacy. If any of (i) the enactment or promulgation of, or any change or phasing in of, any United States or foreign law or regulation or in the interpretation thereof by any United States or foreign governmental authority charged with the administration thereof, (ii) compliance with any directive, guideline or request from any central bank or United States or foreign governmental authority (whether or not having the force of law) promulgated or made after the date hereof, or (iii) compliance with the Risk-Based Capital Guidelines of the Federal Reserve System as set forth in 12 C.F.R. Parts 208 and 225, or of the Comptroller of the Currency, Department of the Treasury, as set forth in 12 C.F.R. Part 3, or similar legislation, rules, guidelines, directives or regulations under any applicable United States or foreign governmental authority affects or would affect the amount of capital required to be maintained by the Lender (or any lending office of the Lender) or any corporation directly or indirectly owning or controlling the Lender, and the Lender shall have determined that such enactment, promulgation, change or compliance has the effect of reducing the rate of return on the Lender’s (or such lending office’s or controlling corporation’s) capital or the asset value to the Lender (or such lending office or controlling corporation) of this Note as a consequence, directly or indirectly, of the Lender’s obligations to make and maintain the funding of all or any portion of the Principal Amount hereunder at a level below that which the Lender (or such lending office or controlling corporation) could have achieved but for such enactment, promulgation, change or compliance (after taking into account the Lender’s (or such lending office’s or controlling corporation’s) policies regarding capital adequacy) by an amount deemed by the Lender to be material, then, upon demand by the Administrative Agent or the Lender, the Borrower shall promptly pay to the Lender such additional amount or amounts as shall be sufficient to compensate the Lender (or such lending office or controlling corporation) for such reduction on the rate of return or asset value, provided that, in any such case, such amounts are charged to similarly situated borrowers of loans (similar to the Loan) made by Lender or its affiliates. The Administrative Agent’s or the Lender’s determination of such amount or amounts that will compensate the Lender (or such lending office or controlling corporation) for such reductions shall be made in good faith and presumed correct, absent manifest error, and shall be evidenced by a certification of such amount or amounts delivered by the Administrative Agent or the Lender to the Borrower.

11.    Option to Fund; Applicability to Participants; Survival. (a) The Lender has indicated that the Lender may wish to purchase one or more deposits in order to fund or maintain its funding of the Principal Amount, it being understood that the provisions of this Note relating to such funding are included only for the purpose of determining the rate of interest to be paid on the Principal Amount and any amounts owing under Sections 8, 9 and 10 above. The Lender shall be entitled to fund and maintain its funding of all or any part of the Principal Amount in any manner it sees fit, provided that all determinations hereunder (including, without limitation, all determinations under Sections 8, 9 and 10 of this Note) shall be made as if the Lender had actually funded and maintained the Principal Amount through the purchase of such deposits in an amount equal to the Principal Amount and having a maturity corresponding to the applicable Interest Period.

(b)    The Borrower agrees that for purposes of Sections 8, 9 and 10 of this Note any reference to the Lender therein shall also include any participant of the Lender to the extent of its pro rata interest in this Note, and in this respect the Borrower agrees that the Lender, on behalf of any such participant, may collect directly from the Borrower, and the Borrower agrees to pay, any sums owing to such participant under Sections 8, 9 and 10 of this Note. In connection with a participation, no participant shall be entitled to receive any greater amount under Sections 8, 9 and 10 hereof as a result of such participation than the Lender would be entitled to receive immediately prior thereto unless such claim would have arisen even if such participation had not occurred.

(c)    The obligations of the Borrower under paragraphs 8, 9 and 10 above shall survive the maturity of the Note, and the payment of this Note and all other amounts payable under this Note.

12.    Definitions. The following terms shall have the following meanings:

13.    Interest and Tax Reserve Collateral Account. Pursuant to Section 6.30 of the Mortgage and the Interest and Tax Reserve Pledge Agreement (as that term is defined in the Mortgage), the Borrower may open and maintain during the term of any extension of the Loan the Interest Reserve and Tax Reserve Collateral Account (as that term is defined in the Interest and Tax Reserve Pledge Agreement). The Interest Reserve and Tax Reserve Account shall be used for the purpose of facilitating the payment of interest payments due on each Periodic Interest Date and real estate taxes when due during any extension of the term of the Loan. Notwithstanding anything to the contrary set forth herein, the lack of sufficient funds in the Interest Reserve and Tax Reserve Collateral Account to pay interest on the Loan at any time shall not affect the Borrower’s obligation to pay interest on the Loan and real estate taxes as and when same is due and payable.

14.    Mortgage Encumbers Premises; Reference to Mortgage and Credit Agreement. This Note is secured by, among other things, the Mortgage, which Mortgage encumbers the Premises. This Note is one of the Notes referred to in the Mortgage, the terms of which are incorporated herein, and its maturity is subject to acceleration upon the terms set forth in the Mortgage. This Note is one of the Acquisition Loan Notes referred to in the Credit Agreement, the terms of which are incorporated herein, and its maturity is subject to acceleration upon the terms set forth in the Credit Agreement. Sums advanced hereunder shall be advanced pursuant to the terms of the Credit Agreement.

15.    Note Acceleration. This Note, including all outstanding principal and interest hereon, shall become due and payable (a) immediately, upon the occurrence of an Event of Default of a type specified in Section 7.1(f) or (g) of the Mortgage, or (b) at the option of the Administrative Agent, upon the occurrence of and during the continuance of (i) any other Event of Default, or (ii) after the giving of any required notice and/or the passage of any applicable cure period.

16.    Note as Evidence of Debt. This Note and the Credit Agreement shall evidence and the Mortgage shall secure the indebtedness described herein, and any future loans, advances, payments and disbursements hereunder or pursuant to the Mortgage shall be added to the principal indebtedness hereunder.

17.    No Waiver. No failure on the part of the Administrative Agent or the Lender to exercise, and no delay in exercising, any right, remedy or power hereunder or under any other document or agreement executed in connection herewith shall operate as a waiver thereof, nor shall any single or partial exercise by the Administrative Agent or the Lender of any right, remedy or power hereunder or under any other document or agreement executed in connection herewith preclude any other or future exercise thereof or of any other right, remedy or power.

18.    Remedies Cumulative. Each and every right, remedy and power hereby granted to the Administrative Agent or the Lender or allowed it by law or other agreement shall be cumulative and not exclusive and may be exercised by the Administrative Agent or the Lender from time to time.

19.    Attorney’s Fees and Court Costs. If this Note shall be collected by legal proceedings or through any court or shall be referred to an attorney because of any default, the Borrower agrees to pay all reasonable attorney’s fees and court costs incurred by the Administrative Agent or the Lender.

20.    Governing Law. This Note shall be governed by and construed in accordance with the laws of the State of New York without regard to principles of conflicts of law.

21.    No Presentment, Demand or Notice Required. The Borrower and any guarantor of this Note waive presentment for payment, demand, notice of demand and of dishonor and nonpayment of this Note, protest and notice of protest, diligence in collecting, and the bringing of suit against any other party, and agree to all renewals, extensions, modifications, partial payments, releases or substitutions of security, in whole or in part, with or without notice, before or after the Maturity Date.

22.    Change, Modification or Waiver. This Note may not be changed or modified orally, nor may any right or provision hereof be waived orally, but in each instance only by an instrument in writing signed by the party against which enforcement of such change, modification or waiver is sought.

23.    No Usury. In the event that the Administrative Agent or the Lender, in enforcing its rights hereunder, determines that charges and fees incurred in connection with this Note may, under applicable laws relative to usury, cause the interest rate herein to exceed the maximum rate allowed by law, then such interest shall be recalculated and any excess over the maximum interest permitted by said laws shall be credited to the then outstanding Principal Amount to reduce said balance by the amount of any such excess without prepayment premium or breakage losses. It is the intent of the parties hereto that the Borrower, under no circumstances, shall be required to pay, nor shall the Administrative Agent or the Lender be entitled to collect, any interest which is in excess of the maximum rate permitted under the applicable laws relative to usury.

24.    Late Charge. In the event that any payment of interest, principal, or principal and interest shall be overdue for a period in excess of ten (10) days, other than the final payment of principal due upon maturity (whether by acceleration or otherwise), a “late charge” calculated at the rate of 5% on such overdue installment may be charged by the Administrative Agent or the Lender for the purpose of defraying the expenses incident to handling such delinquent payments, which “late charge” shall be payable on the same day of the month as payments of interest hereunder. Such charge shall be in addition to, and not in lieu of, any other remedy the Administrative Agent or the Lender may have and is in addition to any reasonable fees and charges of any agents or attorneys which the Lender is entitled to employ upon any default hereunder, whether authorized herein or by law.

25.    Waiver of Trial by Jury. THE BORROWER AND THE LENDER BY ACCEPTANCE HEREOF HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS NOTE, THE MORTGAGE AND THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREIN. FURTHER, THE BORROWER HEREBY CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF THE ADMINISTRATIVE AGENT OR THE LENDER OR COUNSEL TO THE ADMINISTRATIVE AGENT OR THE LENDER HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE ADMINISTRATIVE AGENT OR THE LENDER WOULD NOT, IN THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION. THE BORROWER ACKNOWLEDGES THAT THE ADMINISTRATIVE AGENT OR THE LENDER HAS BEEN INDUCED TO MAKE THE LOAN BY, INTER ALIA, THE PROVISIONS OF THIS PARAGRAPH. IN AN ACTION COMMENCED IN THE COMMERCIAL DIVISION, NEW YORK STATE SUPREME COURT, THE PARTIES HEREBY AGREE, SUBJECT TO THE REQUIREMENTS FOR A CASE TO BE HEARD IN THE COMMERCIAL DIVISION, TO APPLY, AT ADMINISTRATIVE AGENT’S ELECTION, THE COURT’S ACCELERATED ADJUDICATION PROCEDURES SET FORTH IN RULE 9 OF THE RULES OF PRACTICE FOR THE COMMERCIAL DIVISION, IN CONNECTION WITH ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO THIS NOTE, OR THE BREACH, TERMINATION, ENFORCEMENT OR VALIDITY THEREOF.

26.    Headings Descriptive. The headings of the several sections, subsections, paragraphs and subparagraphs of this Note are inserted for convenience only and shall not in any way affect the meaning or construction of any provision of this Note.

27.    Additional Interest. The Borrower shall promptly pay directly to the Administrative Agent for the benefit of the applicable Lender upon demand any Additional Interest that may be payable from time to time under any Interest Rate Protection Product.

28.    Severability. Every provision of this Note is intended to be severable. If any term or provision of this Note shall be invalid, illegal or unenforceable for any reason, the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby.

29.    Right of Set-Off. In addition to any rights and remedies of the Administrative Agent or the Lender provided by law, upon the occurrence of an Event of Default and acceleration of the obligations owing in connection with this Note, or at any time upon the occurrence and during the continuance of an Event of Default, the Administrative Agent and the Lender shall have the right, without prior notice to the Borrower, any such notice being expressly waived by the Borrower, to the extent not prohibited by applicable law, to set off and apply against any indebtedness of the Borrower to the Administrative Agent or the Lender, any amount owing from the Administrative Agent or the Lender to the Borrower, at, or at any time after, the happening of any of the above‑mentioned events. To the extent not prohibited by applicable law, the aforesaid right of set off may be exercised by the Administrative Agent or the Lender against the Borrower or against any trustee in bankruptcy, custodian, debtor in possession, assignee for the benefit of creditors, receiver, or execution, judgment or attachment creditor of the Borrower, or against anyone else claiming through or against the Borrower or such trustee in bankruptcy, custodian, debtor in possession, assignee for the benefit of creditors, receiver, or execution, judgment or attachment creditor, notwithstanding the fact that such right of set-off shall not have been exercised by the Administrative Agent or the Lender prior to the making, filing or issuance, or service upon the Administrative Agent or the Lender of, or of notice of, any such petition, assignment for the benefit of creditors, appointment or application for the appointment of a receiver, or issuance of execution, subpoena, order or warrant. The Administrative Agent or the Lender shall promptly notify the Borrower after any such set-off and application made by the Administrative Agent or the Lender, as applicable, provided that the failure to give such notice shall not affect the validity of such set-off and application.

30.    Waiver of Consequential and Punitive Damages. Each Borrower and Lender hereby knowingly, voluntarily and intentionally waive any right they may have to consequential or punitive damages arising out of, under or in connection with the Loan Documents or the transactions contemplated therein. Further, each of Borrower and Lender hereby certify that no representative of the Administrative Agent or the Lenders, or counsel to the Administrative Agent or the Lenders, has represented, expressly or otherwise, that the Administrative Agent or the Lenders would not, in the event of such litigation, seek to enforce this waiver of consequential and punitive damages. The Borrower acknowledges that the Administrative Agent and the Lenders have been induced to accept this Note by, inter alia, the provisions of this paragraph.

31.    Anti-Money Laundering/International Trade Law Compliance. Borrower represents and warrants to the Administrative Agent and the Lender, as of the date of this Note, the date of each advance of proceeds under the Credit Agreement, the date of any renewal, extension or modification of the Credit Agreement or any other Loan Document, and at all times until the Credit Agreement has been terminated and all amounts thereunder and under the other Loan Documents have been indefeasibly paid in full, that: (a) no Covered Entity (i) is a Sanctioned Person; (ii) has any of its assets in a Sanctioned Country or in the possession, custody or control of a Sanctioned Person; or (iii) does business in or with, or derives any of its operating income from investments in or transactions with, any Sanctioned Country or Sanctioned Person in violation of any law, regulation, order or directive enforced by any Compliance Authority; (b) the proceeds of the Loan will not be used to fund any operations in, finance any investments or activities in, or, make any payments to, a Sanctioned Country or Sanctioned Person in violation of any law, regulation, order or directive enforced by any Compliance Authority; (c) the funds used to repay the Loan are not derived from any unlawful activity; and (d) each Covered Entity is in compliance with, and no Covered Entity engages in any dealings or transactions prohibited by, any laws of the United States, including but not limited to any Anti-Terrorism Laws. Borrower covenants and agrees that it shall immediately notify the Administrative Agent and the Lender in writing upon the occurrence of a Reportable Compliance Event.

As used herein: “Anti-Terrorism Laws” means any laws relating to terrorism, trade sanctions programs and embargoes, import/export licensing, money laundering or bribery, all as amended, supplemented or replaced from time to time; “Compliance Authority” means each and all of the (a) U.S. Treasury Department/Office of Foreign Assets Control, (b) U.S. Treasury Department/Financial Crimes Enforcement Network, (c) U.S. State Department/Directorate of Defense Trade Controls, (d) U.S. Commerce Department/Bureau of Industry and Security, (e) U.S. Internal Revenue Service, (f) U.S. Justice Department, and (g) U.S. Securities and Exchange Commission; “Covered Entity” means the Borrower, its affiliates and subsidiaries, all Credit Parties and other guarantors, pledgors of collateral, all owners of the foregoing, and all brokers or other agents of the Borrower acting in any capacity in connection with the Loan; “Reportable Compliance Event” means that any Covered Entity becomes a Sanctioned Person, or is indicted, arraigned, investigated or custodially detained, or receives an inquiry from regulatory or law enforcement officials, in connection with any Anti-Terrorism Law or any predicate crime to any Anti-Terrorism Law, or self-discovers facts or circumstances implicating any aspect of its operations with the actual or possible violation of any Anti-Terrorism Law; “Sanctioned Country” means a country subject to a sanctions program maintained by any Compliance Authority; and “Sanctioned Person” means any individual person, group, regime, entity or thing listed or otherwise recognized as a specially designated, prohibited, sanctioned or debarred person or entity, or subject to any limitations or prohibitions (including but not limited to the blocking of property or rejection of transactions), under any order or directive of any Compliance Authority or otherwise subject to, or specially designated under, any sanctions program maintained by any Compliance Authority.

32.    Certain Taxes. The principal of and the interest on the obligations due under this Note, and any other amounts owed hereunder or under any other Loan Document for fees, costs, or otherwise, are payable in lawful money of the United States of America without deduction for or on account of any present or future tax, duty or other charge levied or imposed on this Note or other Loan Document or the proceeds hereof or the holder hereof by any government or any political subdivision thereof or by any other jurisdiction, or by any political subdivision thereof, from which any payment due with respect thereto is remitted or on account of any other restrictions and conditions of whatever nature.  If any such tax, duty or other charge is required to be deducted or withheld by law or regulation from any amount payable hereunder or under any other Loan Document, Borrower shall pay the Administrative Agent or the Lender such additional amounts (including any penalties and interest thereon) as may be necessary so that the amount actually received by the Administrative Agent or the Lender is equal to the full amount payable hereunder or under such other Loan Document had no such withholding or deduction been made. Borrower shall furnish to the Administrative Agent all tax receipts for withholding taxes, if any, paid on behalf of the Administrative Agent or the Lender within sixty (60) days of the payment of such tax.  Should Borrower not furnish the tax receipts within ninety (90) days of the due date of payment of such taxes, Borrower shall pay the Administrative Agent or the Lender a tax reimbursement equivalent to the amount of withholding tax due.

33.    USA PATRIOT Act Notice. The Lender and the Administrative Agent hereby notify you that pursuant to the requirements of the USA Patriot Act, Title III of Pub. L. 107-56 (signed into law October 26, 2001) (the “Patriot Act”), the Administrative Agent and the Lender are required to obtain, verify and record information that identifies the Borrower and any Guarantor, which information includes the name, address, tax identification number and other information regarding Borrower and such Guarantor that will allow the Administrative Agent and the Lender to identify Borrower and such Guarantor in accordance with the Patriot Act. In that connection, the Administrative Agent and the Lender may also request corporate formation documents, or other forms of identification, to verify information provided.

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IN WITNESS WHEREOF, this Acquisition Loan Note has been duly executed by the Borrower on the date first written above.

On the ____ day of August in the year 2023 before me, the undersigned, a notary public in and for said State, personally appeared David Bistricer personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument.

Exhibit 10.2

BUILDING LOAN NOTE

FOR VALUE RECEIVED, the undersigned, DEAN OWNER LLC, a Delaware limited liability company, having an office at 4611 Twelfth Avenue, Suite 1L, Brooklyn, New York 11219 (the “Borrower”), promises to pay to VALLEY NATIONAL BANK (the “Lender”), at the offices of Valley National Bank, as administrative agent (the “Administrative Agent”) at 1 Pennsylvania Plaza, 46th Floor, New York, New York 10119 or at such other place as the holder hereof may from time to time appoint in writing, the Principal Amount as hereinafter provided, together with interest thereon as provided herein. Defined terms used in this Building Loan Note (the “Note”) shall have the meanings ascribed thereto in Section 12 hereof or if not defined in Section 12 hereof, in the Building Loan Agreement.

1.    Principal Payments. The Borrower agrees to pay the Principal Amount by making a payment equal to the entire unpaid Principal Amount on the Maturity Date.

2.    Interest. The Principal Amount shall bear interest (computed on the basis of a 360-day year for the actual number of days involved) commencing on the date hereof at a fluctuating rate per annum equal to 4.00% above the Term SOFR in effect on the first day of the applicable Interest Period; provided, however, that in no event shall the interest rate applicable to the Principal Amount outstanding hereunder be less than 5.50% per annum. Notwithstanding the foregoing, in the event an Interest Rate Protection Product is entered into with respect to this Note which does not contemplate a 5.50% floor rate for the floating rate portion of the interest rate swap, then the 5.50% floor rate designated in the preceding sentence shall not apply while such Interest Rate Protection Product is in effect. Interest shall be payable in arrears on the First Periodic Interest Date and on each Periodic Interest Date thereafter occurring, and on the Maturity Date.

(a)         Upon Borrower’s request, Lender shall give notice to Borrower of the Term SOFR as determined or adjusted for each Interest Period in accordance herewith, which determination or adjustment shall be conclusive absent manifest error. All interest hereunder on any advance shall be computed on a daily basis based upon the outstanding principal amount of all advances hereunder as of the applicable date of determination.

(b)         In the event the Administrative Agent shall have determined that by reason of circumstances affecting the Term SOFR, adequate and reasonable means do not exist for ascertaining the Term SOFR for any Interest Period with respect to any advance hereunder (unless Benchmark Replacement (as defined below) is applicable, in which case the interest rate shall be determined as set forth in Section 4 below), the per annum rate of interest (the “Alternate Rate”) applicable to such advance during such Interest Period shall be equal to 1.00% above the Wall Street Journal Prime Rate, subject to the minimum rate of interest specified in the first paragraph of this Section.

(c)         If, after the date of this Note, Lender shall determine (which determination shall be final and conclusive absent manifest error) that any Change in Law shall make it impossible or unlawful for Lender to make, fund or maintain SOFR Advances, then Lender shall notify Borrower in writing. From the date of such notice until Lender notifies Borrower in writing that the circumstances giving rise to such determination no longer apply, (i) any obligation of Lender contained herein or in any agreement of Lender to make available SOFR Advances shall immediately be suspended, and (ii) any such SOFR Advances then outstanding shall instead bear interest, at Lender’s option, at the Alternative Rate, such change taking effect either (x) on the last day of the then current Interest Period if Lender may lawfully continue to maintain SOFR Advances to such day, or (y) immediately if Lender may not lawfully continue to maintain SOFR Advances (provided the Lender shall indicate its election of (x) or (y) by notice to the Borrower together with the date such change shall take effect). Upon the occurrence of any of the foregoing events, Borrower shall pay to Lender immediately upon demand such amounts as may be reasonably necessary to compensate Lender for any fines, fees, charges, penalties or other costs actually incurred or payable by Lender as a result thereof and which are attributable to any SOFR Advances made available to Borrower hereunder, and any reasonable allocation made by Lender among its operations shall be conclusive and binding upon Borrower.

(d)         Interest hereunder will be calculated based on the actual number of days that principal is outstanding over a year of 360 days. In no event will the rate of interest hereunder exceed the maximum rate allowed by law.

(e)         After the occurrence and during the continuance of an Event of Default, the Borrower shall pay interest at the Default Rate. After maturity, the Principal Amount and accrued interest thereon, shall, at the option of the Lender, be payable on demand.

For purposes hereof, the following terms shall have the following meanings:

“Business Day” shall mean any day that is not a Saturday, Sunday or other day on which banks in New York City are required or permitted to close; provided, when used in connection with determining Term SOFR, the term “Business Day” shall also exclude any day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.

“Floor” means a rate of interest equal to 1.50 %

“SOFR” means a rate per annum equal to the secured overnight financing rate for such Business Day published by the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate) on the website of the Federal Reserve Bank of New York, currently at http://www.newyorkfed.org (or any successor source for the secured overnight financing rate identified as such by the administrator of the secured overnight financing rate from time to time).

“SOFR Advance” shall mean an advance that bears interest at a rate based on Term SOFR.

“Term SOFR” shall mean, for any calculation with respect to a SOFR Advance, the Term SOFR Reference Rate for a tenor comparable to the applicable Interest Period on the day (such day, the “Periodic Term SOFR Determination Day”) that is two (2) Business Days prior to the first day of such Interest Period, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City time) on any Periodic Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date (as defined below) with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding Business Day is not more than three (3) Business Days prior to such Periodic Term SOFR Determination Day; provided, further, that if Term SOFR determined as provided above shall ever be less than the Floor, then Term SOFR shall be deemed to be the Floor. Notwithstanding the foregoing, in the event an Interest Rate Protection Product is entered into with respect to this Note which does not contemplate a floor rate for the floating rate portion of the interest rate swap, then the Floor designated in the preceding sentence shall not apply while such Interest Rate Protection Product is in effect.

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

“Term SOFR Reference Rate” shall mean the forward-looking term rate based on SOFR.

3.    Term SOFR Conforming Changes. In connection with the use or administration of Term SOFR, Lender shall have the right to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of Borrower or any other party to any other Loan Document. Lender shall promptly notify Borrower of the effectiveness of any Conforming Changes in connection with the use or administration of Term SOFR.

4.    Benchmark Replacement Setting. Notwithstanding anything to the contrary herein or in any other Loan Document:

(a)         Replacing Benchmarks. Upon the occurrence of a Benchmark Transition Event, the Benchmark Replacement will replace the then-current Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. on the tenth (10th) Business Day after the date notice of such Benchmark Replacement is provided to Borrower without any amendment to this Note or any other Loan Document, or further action or consent of Borrower. At any time that the administrator of the then-current Benchmark has permanently or indefinitely ceased to provide such Benchmark or such Benchmark has been announced by the regulatory supervisor for the administrator of such Benchmark pursuant to public statement or publication of information to be no longer representative of the underlying market and economic reality that such Benchmark is intended to measure and that representativeness will not be restored, Borrower may revoke any request for a borrowing of, or continuation of advances to be made or continued that would bear interest by reference to such Benchmark until Borrower’s receipt of notice from Lender that a Benchmark Replacement has replaced such Benchmark, and, failing that, Borrower will be deemed to have converted any such request into a request for a borrowing of or conversion to advances bearing interest at the Prime Rate.

(b)         Subsequent Rate Conversion. At any time following the effectiveness of a Benchmark Replacement in accordance with this Section, Lender shall have the right, by providing written notice to Borrower, to convert the then-current Benchmark to a different Alternative Rate in accordance with and subject to the conditions set forth in clause (1) of the definition of “Benchmark Replacement.” Such Alternative Rate shall be deemed to be a “Benchmark Replacement” hereunder and will replace the then-current Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. on the tenth (10th) Business Day after the date notice of such Benchmark Replacement is provided to Borrower without any amendment to this Note or any other Loan Document, or further action or consent of Borrower.

(c)         Benchmark Replacement Conforming Changes. In connection with the implementation and administration of a Benchmark Replacement, Lender will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Note or such other Loan Document.

(d)         Notices; Standards for Decisions and Determinations. Lender will promptly notify Borrower of (i) the implementation of any Benchmark Replacement and (ii) the effectiveness of any Conforming Changes; provided that any failure to so notify will not affect Lender’s rights hereunder. Any determination, decision or election that may be made by Lender pursuant to this Section, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action, will be conclusive and binding absent manifest error and may be made in its sole discretion and without consent from any other party hereto, except, in each case, as expressly required pursuant to this Section.

(e)         Unavailability of Tenor of Benchmark. At any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including the Term SOFR Reference Rate), then Lender may remove any tenor of such Benchmark that is unavailable or non-representative for Benchmark (including Benchmark Replacement) settings and (ii) Lender may reinstate any such previously removed tenor for Benchmark (including Benchmark Replacement) settings.

(f)         Disclaimer. Lender does not warrant or accept responsibility for, and shall not have any liability with respect to (a) the administration, submission, calculation of or any other matter related to the rates in the definition of “Term SOFR” or with respect to any component definition thereof or rates referenced in the definition thereof or any alternative, comparable or successor rate thereto (including any Benchmark or any Benchmark Replacement or the effect, implementation or composition of any Conforming Changes (defined above)) and including, without limitation, whether the composition or characteristics of any such alternative, successor or replacement reference rate, as it may or may not be adjusted pursuant hereto, will be similar to, or produce the same value or economic equivalence of, such Benchmark or any other Benchmark or have the same volume or liquidity as did such Benchmark or any other Benchmark prior to its discontinuance or unavailability, or (b) the impact or effect of such alternative, successor or replacement reference rate or Conforming Changes on any other financial products or agreements in effect or offered to any obligor or any of their respective affiliates, including, without limitation, any Interest Rate Protection Product.

(g)         Definitions.

“AMERIBOR” shall mean, for the corresponding tenor, the arithmetic average AMERIBOR benchmark interest rate as provided by American Financial Exchange, LLC as administrator of the benchmark (or a successor administrator) to, and published by, authorized distributors of AMERIBOR.

“Available Tenor” shall mean, as of any date of determination and with respect to the then-current Benchmark, as applicable, (x) if the then-current Benchmark is a term rate, any tenor for such Benchmark that is or may be used for determining the length of an Interest Period or (y) otherwise, any payment period for interest calculated with reference to such Benchmark, as applicable, pursuant to this Note as of such date.

“Benchmark” shall mean, initially, the Term SOFR Reference Rate; provided that if a Benchmark Transition Event has occurred with respect to the Term SOFR Reference Rate or the then-current Benchmark, the “Benchmark” shall mean the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate. Any reference to “Benchmark” shall include, as applicable, the published component used in the calculation thereof.

“Benchmark Replacement” shall mean, for any Available Tenor:

(1)         For purposes of clause (a) or (b) of this Section, any of the alternative rates set forth below, in any combination of choices or in such order of priority as Lender shall determine in its sole and absolute discretion and which is (i) administratively feasible for Lender to establish and provide to its customers, (ii) a primary rate being utilized by banks in the New York lending market, and (iii) generally used by Lender in its administration of loans held in its portfolio similar to the Loan (each, an “Alternative Rate”):

(i)         the sum of: (i) Daily Simple SOFR and (ii) an adjustment (which may be a positive or negative value or zero) that has been selected by Lender, giving due consideration to any evolving or then-prevailing market convention, including any applicable recommendations made by the Relevant Governmental Body, for U.S. dollar-denominated syndicated or bilateral credit facilities at such time; or

(ii)         the sum of (i) Daily Compounded SOFR and (ii) an adjustment (which may be a positive or negative value or zero) that has been selected by Lender, giving due consideration to any evolving or then-prevailing market convention, including any applicable recommendations made by the Relevant Governmental Body, for U.S. dollar-denominated syndicated or bilateral credit facilities at such time; or

(iii)         the sum of (i) Term BSBY and (ii) an adjustment (which may be a positive or negative value or zero) that has been selected by Lender, giving due consideration to any evolving or then-prevailing market convention, including any applicable recommendations made by the Relevant Governmental Body, for U.S. dollar-denominated syndicated or bilateral credit facilities at such time; or

(iv)         the sum of (i) AMERIBOR and (ii) an adjustment (which may be a positive or negative value or zero) that has been selected by Lender, giving due consideration to any evolving or then-prevailing market convention, including any applicable recommendations made by the Relevant Governmental Body, for U.S. dollar-denominated syndicated or bilateral credit facilities at such time; or

(v)         the sum of (i) any SOFR Average and (ii) an adjustment (which may be a positive or negative value or zero) that has been selected by Lender, giving due consideration to any evolving or then-prevailing market convention, including any applicable recommendations made by the Relevant Governmental Body, for U.S. dollar-denominated syndicated or bilateral credit facilities at such time; or

(vi)         any other reference rate reasonably selected by Lender that Lender in its sole discretion commences to offer to its customers generally; or

(vii)         if no available reference rate satisfies the requirements set forth in this paragraph 1 and in the provisos below, the Prime Rate;

provided that, in the case of clauses 1(iii), 1(iv), 1(v) or 1(vi) above, the relevant Alternative Rate is displayed on a screen or other information service selected by Lender in its reasonable discretion;

provided, further, that in the event any of the advances is hedged pursuant to one or more Interest Rate Protection Products (the “Hedged Exposure”), then the Benchmark Replacement for such Hedged Exposure shall have the meaning in effect from time to time ascribed to the “Floating Rate Option” under the relevant Confirmation(s) (as each of such terms is defined in the related Interest Rate Protection Products); and

provided, further, that, if the Benchmark Replacement as determined pursuant to clause (1) above would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Note and the other Loan Documents.

Notwithstanding the foregoing, in the event an Interest Rate Protection Product is entered into with respect to this Note which does not contemplate a floor rate for the floating rate portion of the interest rate swap, then the Floor designated in the preceding sentence shall not apply while such Interest Rate Protection Product is in effect.

“Benchmark Replacement Date” shall mean the earliest to occur of the following events with respect to the then-current Benchmark: (a) in the case of clause (a) of the definition of “Benchmark Transition Event”, the later of (i) the date of the public statement or publication of information referenced therein and (ii) the date on which the administrator of such Benchmark permanently or indefinitely ceases to provide all Available Tenors of such Benchmark; or (b) in the case of clause (b) of the definition of “Benchmark Transition Event”, the first date on which such Benchmark has been determined and announced by or on behalf of the administrator of such Benchmark or the regulatory supervisor for the administrator of such Benchmark to be non-representative of the underlying market and economic reality that such Benchmark is intended to measure and that representativeness will not be restored; provided that such non-representativeness, non-compliance or non-alignment will be determined by reference to the most recent statement or publication referenced in such clause (b) and even if any Available Tenor of such Benchmark continues to be provided on such date. For the avoidance of doubt, the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (a) or (b) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark.

“Benchmark Transition Event” shall mean, with respect to any then-current Benchmark, the occurrence of a public statement or publication of information by or on behalf of the administrator of the then-current Benchmark, the regulatory supervisor for the administrator of such Benchmark, the Board of Governors of the Federal Reserve System, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for such Benchmark, a resolution authority with jurisdiction over the administrator for such Benchmark or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark, announcing or stating that (a) such administrator has ceased or will cease on a specified date to provide all Available Tenors of such Benchmark, permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark or (b) all Available Tenors of such Benchmark are or will no longer be representative of the underlying market and economic reality that such Benchmark is intended to measure and that representativeness will not be restored.

“Conforming Changes” shall mean, with respect to either the use or administration of Term SOFR, or with respect to the use, administration, adoption or implementation of any Benchmark Replacement, any technical, administrative or operational changes (including without limitation changes to the definition of “Prime Rate”, the definition of “Business Day,” the definition of “Interest Period” or any similar or analogous definition, timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that Lender decides in its sole but reasonable discretion may be necessary or appropriate to reflect the adoption and implementation of any such rate or to permit the use and administration thereof by Lender in a manner substantially consistent with market practice (or, if Lender decides that adoption of any portion of such market practice is not administratively feasible or if Lender determines that no market practice for the administration of any such rate exists, in such other manner of administration as Lender reasonably decides is necessary in connection with the administration of this Note and the other Loan Documents and in a manner applied by Lender to loans held in its portfolio similar to the Loan).

“Daily Compounded SOFR” shall mean, for any day, SOFR, with interest accruing on a compounded daily basis, with the methodology and conventions for this rate (which will include compounding in arrears with a lookback) being established by Lender in accordance with the methodology and conventions for this rate recommended by the Relevant Governmental Body for determining “Daily Compounded SOFR” for bilateral business loans; provided, that if Lender decides that any such convention is not administratively feasible for Lender, then Lender may establish another convention in its reasonable discretion.

“Daily Simple SOFR” shall mean, for any day, SOFR, with the conventions for this rate (which will include a lookback) being established by Lender in accordance with the conventions for this rate recommended by the Relevant Governmental Body for determining “Daily Simple SOFR” for bilateral business loans; provided, that if Lender decides that any such convention is not administratively feasible for Lender, then Lender may establish another convention in its reasonable discretion.

“Relevant Governmental Body” shall mean the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or any successor thereto.

“SOFR Average” shall mean a rate per annum equal to any of the 30-day, 90-day or 180-day rolling compounded averages of SOFR published on such Business Day by the Federal Reserve Bank of New York (or a successor administrator of the compounded average SOFR rates) on the website of the Federal Reserve Bank of New York, currently at http://www.newyorkfed.org (or any successor source for the compounded average SOFR rates identified as such by the administrator of the compounded average SOFR rates from time to time).

“Term BSBY” shall mean, for the applicable corresponding tenor, the Bloomberg Short-Term Bank Yield Index provided by Bloomberg Index Services Limited as administrator of the benchmark (or a successor administrator).

5.    Extension Options. Subject to the terms and conditions set forth in the Credit Agreement, the Borrower shall have the option to extend the term of the Loan from the Initial Maturity Date to the First Extended Maturity Date and thereafter from the First Extended Maturity Date to the Second Extended Maturity Date.

6.    Prepayments. (a) Upon not less than ten (10) days prior written notice to the Administrative Agent, specifying the date of prepayment, the Borrower shall have the right to prepay the Principal Amount in whole, or in part, together with: (i) all accrued interest to the date of such prepayment, and (ii) any applicable Funding Loss, and/or Additional Interest, which may be due and payable under any Interest Rate Protection Product, if applicable, after giving effect to such prepayment. Each prepayment, other than a prepayment in connection with a casualty or condemnation or final repayment of the Loan, must equal at least the Minimum Prepayment Amount;

(b)    Amounts paid or prepaid will not be readvanced.

7.    General. Each payment under this Note, including without limitation, all payments and/or prepayments of principal and/or interest, shall be made by the Borrower to the Lender at the office of the Administrative Agent at 1 Pennsylvania Plaza, 46th Floor, New York, New York 10119 or at such other place as the Administrative Agent may from time to time appoint in writing in immediately available funds by 3:00 P.M., New York City time, on the due date for such payment. The failure of the Borrower to make any such payment by such time shall not constitute a default hereunder, provided that such payment is made on such due date, but any such payment made after 3:00 P.M., New York City time, on such due date shall be deemed to have been made on the next Business Day for the purpose of calculating interest on the amount outstanding on this Note. If any payment under this Note shall be due and payable on a day which is not a Business Day, the due date thereof shall be extended to the next Business Day (except as otherwise provided in the definition of Interest Period), and interest shall be payable at the applicable rate specified herein during such extension.

8.    Break Funding Indemnification. Borrower agrees to indemnify Lender against any liabilities, losses or out-of-pocket expenses, including, without limitation, any loss or expense sustained or incurred in liquidating or employing deposits from third parties, and any loss or expense incurred in connection with funds acquired to effect, fund or maintain any SOFR Advance (or any part thereof) which Lender sustains or incurs as a consequence of either (i) Borrower’s failure to make a payment on the due date thereof, (ii) Borrower’s revocation (expressly, by later inconsistent notices or otherwise) in whole or in part of any notice given to Lender to request, convert, renew or prepay any SOFR Advance, or (iii) Borrower’s payment or prepayment (whether voluntary, after acceleration of the maturity of this Note or otherwise) or conversion of any SOFR Advance on a day other than the last day of the applicable Interest Period. A notice as to any amounts payable pursuant to this paragraph given to Borrower by Lender shall, in the absence of manifest error, be conclusive and shall be payable upon demand. Borrower’s indemnification obligations hereunder shall survive the payment in full of the advances and all other amounts payable hereunder. Any sums payable to Lender hereunder from time to time is sometimes referred to as a “Funding Loss”. For clarity, the losses described in this Paragraph are intended to refer to “breakage fees” incurred by the Lender as a result of the situations described in clauses (i) – (iii) above.

9.    Increased Costs; Yield Protection. On written demand, together with written evidence of the justification therefor, Borrower agrees to pay the Lender all direct costs incurred, any losses suffered or payments made by the Lender, as a result of any Change in Law (hereinafter defined), imposing any reserve, deposit, allocation of capital or similar requirement (including without limitation, Regulation D of the Board of Governors of the Federal Reserve System) on the Lender, its holding company or any of their respective assets relative to the Loan, in each case to the extent such amounts are charged to similarly situated borrowers of loans (similar to the Loan) made by Lender or its affiliates. “Change in Law” means the occurrence, after the date of this Note, 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) by any governmental authority; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall 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 Lender 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.

10.    Capital Adequacy. If any of (i) the enactment or promulgation of, or any change or phasing in of, any United States or foreign law or regulation or in the interpretation thereof by any United States or foreign governmental authority charged with the administration thereof, (ii) compliance with any directive, guideline or request from any central bank or United States or foreign governmental authority (whether or not having the force of law) promulgated or made after the date hereof, or (iii) compliance with the Risk-Based Capital Guidelines of the Federal Reserve System as set forth in 12 C.F.R. Parts 208 and 225, or of the Comptroller of the Currency, Department of the Treasury, as set forth in 12 C.F.R. Part 3, or similar legislation, rules, guidelines, directives or regulations under any applicable United States or foreign governmental authority affects or would affect the amount of capital required to be maintained by the Lender (or any lending office of the Lender) or any corporation directly or indirectly owning or controlling the Lender, and the Lender shall have determined that such enactment, promulgation, change or compliance has the effect of reducing the rate of return on the Lender’s (or such lending office’s or controlling corporation’s) capital or the asset value to the Lender (or such lending office or controlling corporation) of this Note as a consequence, directly or indirectly, of the Lender’s obligations to make and maintain the funding of all or any portion of the Principal Amount hereunder at a level below that which the Lender (or such lending office or controlling corporation) could have achieved but for such enactment, promulgation, change or compliance (after taking into account the Lender’s (or such lending office’s or controlling corporation’s) policies regarding capital adequacy) by an amount deemed by the Lender to be material, then, upon demand by the Administrative Agent or the Lender, the Borrower shall promptly pay to the Lender such additional amount or amounts as shall be sufficient to compensate the Lender (or such lending office or controlling corporation) for such reduction on the rate of return or asset value, provided that, in any such case, such amounts are charged to similarly situated borrowers of loans (similar to the Loan) made by Lender or its affiliates. The Administrative Agent’s or the Lender’s determination of such amount or amounts that will compensate the Lender (or such lending office or controlling corporation) for such reductions shall be made in good faith and presumed correct, absent manifest error, and shall be evidenced by a certification of such amount or amounts delivered by the Administrative Agent or the Lender to the Borrower.

11.    Option to Fund; Applicability to Participants; Survival. (a) The Lender has indicated that the Lender may wish to purchase one or more deposits in order to fund or maintain its funding of the Principal Amount, it being understood that the provisions of this Note relating to such funding are included only for the purpose of determining the rate of interest to be paid on the Principal Amount and any amounts owing under Sections 8, 9 and 10 above. The Lender shall be entitled to fund and maintain its funding of all or any part of the Principal Amount in any manner it sees fit, provided that all determinations hereunder (including, without limitation, all determinations under Sections 8, 9 and 10 of this Note) shall be made as if the Lender had actually funded and maintained the Principal Amount through the purchase of such deposits in an amount equal to the Principal Amount and having a maturity corresponding to the applicable Interest Period.

(b)    The Borrower agrees that for purposes of Sections 8, 9 and 10 of this Note any reference to the Lender therein shall also include any participant of the Lender to the extent of its pro rata interest in this Note, and in this respect the Borrower agrees that the Lender, on behalf of any such participant, may collect directly from the Borrower, and the Borrower agrees to pay, any sums owing to such participant under Sections 8, 9 and 10 of this Note. In connection with a participation, no participant shall be entitled to receive any greater amount under Sections 8, 9 and 10 hereof as a result of such participation than the Lender would be entitled to receive immediately prior thereto unless such claim would have arisen even if such participation had not occurred.

(c)    The obligations of the Borrower under paragraphs 8, 9 and 10 above shall survive the maturity of the Note, and the payment of this Note and all other amounts payable under this Note.

12.    Definitions. The following terms shall have the following meanings:

13.    Interest and Tax Reserve Collateral Account. Pursuant to Section 6.30 of the Mortgage and the Interest and Tax Reserve Pledge Agreement (as that term is defined in the Mortgage), the Borrower may open and maintain during the term of any extension of the Loan the Interest Reserve and Tax Reserve Collateral Account (as that term is defined in the Interest and Tax Reserve Pledge Agreement). The Interest Reserve and Tax Reserve Account shall be used for the purpose of facilitating the payment of interest payments due on each Periodic Interest Date and real estate taxes when due during any extension of the term of the Loan. Notwithstanding anything to the contrary set forth herein, the lack of sufficient funds in the Interest Reserve and Tax Reserve Collateral Account to pay interest on the Loan at any time shall not affect the Borrower’s obligation to pay interest on the Loan and real estate taxes as and when same is due and payable.

14.    Mortgage Encumbers Premises; Reference to Mortgage, Building Loan Agreement and Credit Agreement. This Note is secured by, among other things, the Mortgage, which Mortgage encumbers the Premises. This Note is one of the Notes referred to in the Mortgage, the terms of which are incorporated herein, and its maturity is subject to acceleration upon the terms set forth in the Mortgage. This Note is one of the Notes referred to in the Building Loan Agreement, the terms of which are incorporated herein, and its maturity is subject to acceleration upon the terms set forth in the Building Loan Agreement. This Note is one of the Building Loan Notes referred to in the Credit Agreement, the terms of which are incorporated herein, and its maturity is subject to acceleration upon the terms set forth in the Credit Agreement. Sums advanced hereunder shall be advanced pursuant to the terms of the Building Loan Agreement and the Credit Agreement.

15.    Note Acceleration. This Note, including all outstanding principal and interest hereon, shall become due and payable (a) immediately, upon the occurrence of an Event of Default of a type specified in Section 7.1(f) or (g) of the Mortgage, or (b) at the option of the Administrative Agent, upon the occurrence of and during the continuance of (i) any other Event of Default, or (ii) after the giving of any required notice and/or the passage of any applicable cure period.

16.    Note as Evidence of Debt. This Note and the Building Loan Agreement shall evidence and the Mortgage shall secure the indebtedness described herein, and any future loans, advances, payments and disbursements hereunder or pursuant to the Mortgage shall be added to the principal indebtedness hereunder.

17.    No Waiver. No failure on the part of the Administrative Agent or the Lender to exercise, and no delay in exercising, any right, remedy or power hereunder or under any other document or agreement executed in connection herewith shall operate as a waiver thereof, nor shall any single or partial exercise by the Administrative Agent or the Lender of any right, remedy or power hereunder or under any other document or agreement executed in connection herewith preclude any other or future exercise thereof or of any other right, remedy or power.

18.    Remedies Cumulative. Each and every right, remedy and power hereby granted to the Administrative Agent or the Lender or allowed it by law or other agreement shall be cumulative and not exclusive and may be exercised by the Administrative Agent or the Lender from time to time.

19.    Attorney’s Fees and Court Costs. If this Note shall be collected by legal proceedings or through any court or shall be referred to an attorney because of any default, the Borrower agrees to pay all reasonable attorney’s fees and court costs incurred by the Administrative Agent or the Lender.

20.    Governing Law. This Note shall be governed by and construed in accordance with the laws of the State of New York without regard to principles of conflicts of law.

21.    No Presentment, Demand or Notice Required. The Borrower and any guarantor of this Note waive presentment for payment, demand, notice of demand and of dishonor and nonpayment of this Note, protest and notice of protest, diligence in collecting, and the bringing of suit against any other party, and agree to all renewals, extensions, modifications, partial payments, releases or substitutions of security, in whole or in part, with or without notice, before or after the Maturity Date.

22.    Change, Modification or Waiver. This Note may not be changed or modified orally, nor may any right or provision hereof be waived orally, but in each instance only by an instrument in writing signed by the party against which enforcement of such change, modification or waiver is sought.

23.    No Usury. In the event that the Administrative Agent or the Lender, in enforcing its rights hereunder, determines that charges and fees incurred in connection with this Note may, under applicable laws relative to usury, cause the interest rate herein to exceed the maximum rate allowed by law, then such interest shall be recalculated and any excess over the maximum interest permitted by said laws shall be credited to the then outstanding Principal Amount to reduce said balance by the amount of any such excess without prepayment premium or breakage losses. It is the intent of the parties hereto that the Borrower, under no circumstances, shall be required to pay, nor shall the Administrative Agent or the Lender be entitled to collect, any interest which is in excess of the maximum rate permitted under the applicable laws relative to usury.

24.    Late Charge. In the event that any payment of interest, principal, or principal and interest shall be overdue for a period in excess of ten (10) days, other than the final payment of principal due upon maturity (whether by acceleration or otherwise), a “late charge” calculated at the rate of 5% on such overdue installment may be charged by the Administrative Agent or the Lender for the purpose of defraying the expenses incident to handling such delinquent payments, which “late charge” shall be payable on the same day of the month as payments of interest hereunder. Such charge shall be in addition to, and not in lieu of, any other remedy the Administrative Agent or the Lender may have and is in addition to any reasonable fees and charges of any agents or attorneys which the Lender is entitled to employ upon any default hereunder, whether authorized herein or by law.

25.    Waiver of Trial by Jury. THE BORROWER AND THE LENDER BY ACCEPTANCE HEREOF HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS NOTE, THE MORTGAGE AND THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREIN. FURTHER, THE BORROWER HEREBY CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF THE ADMINISTRATIVE AGENT OR THE LENDER OR COUNSEL TO THE ADMINISTRATIVE AGENT OR THE LENDER HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE ADMINISTRATIVE AGENT OR THE LENDER WOULD NOT, IN THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION. THE BORROWER ACKNOWLEDGES THAT THE ADMINISTRATIVE AGENT OR THE LENDER HAS BEEN INDUCED TO MAKE THE LOAN BY, INTER ALIA, THE PROVISIONS OF THIS PARAGRAPH. IN AN ACTION COMMENCED IN THE COMMERCIAL DIVISION, NEW YORK STATE SUPREME COURT, THE PARTIES HEREBY AGREE, SUBJECT TO THE REQUIREMENTS FOR A CASE TO BE HEARD IN THE COMMERCIAL DIVISION, TO APPLY, AT ADMINISTRATIVE AGENT’S ELECTION, THE COURT’S ACCELERATED ADJUDICATION PROCEDURES SET FORTH IN RULE 9 OF THE RULES OF PRACTICE FOR THE COMMERCIAL DIVISION, IN CONNECTION WITH ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO THIS NOTE, OR THE BREACH, TERMINATION, ENFORCEMENT OR VALIDITY THEREOF.

26.    Headings Descriptive. The headings of the several sections, subsections, paragraphs and subparagraphs of this Note are inserted for convenience only and shall not in any way affect the meaning or construction of any provision of this Note.

27.    Additional Interest. The Borrower shall promptly pay directly to the Administrative Agent for the benefit of the applicable Lender upon demand any Additional Interest that may be payable from time to time under any Interest Rate Protection Product.

28.    Severability. Every provision of this Note is intended to be severable. If any term or provision of this Note shall be invalid, illegal or unenforceable for any reason, the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby.

29.    Right of Set-Off. In addition to any rights and remedies of the Administrative Agent or the Lender provided by law, upon the occurrence of an Event of Default and acceleration of the obligations owing in connection with this Note, or at any time upon the occurrence and during the continuance of an Event of Default, the Administrative Agent and the Lender shall have the right, without prior notice to the Borrower, any such notice being expressly waived by the Borrower, to the extent not prohibited by applicable law, to set off and apply against any indebtedness of the Borrower to the Administrative Agent or the Lender, any amount owing from the Administrative Agent or the Lender to the Borrower, at, or at any time after, the happening of any of the above‑mentioned events. To the extent not prohibited by applicable law, the aforesaid right of set off may be exercised by the Administrative Agent or the Lender against the Borrower or against any trustee in bankruptcy, custodian, debtor in possession, assignee for the benefit of creditors, receiver, or execution, judgment or attachment creditor of the Borrower, or against anyone else claiming through or against the Borrower or such trustee in bankruptcy, custodian, debtor in possession, assignee for the benefit of creditors, receiver, or execution, judgment or attachment creditor, notwithstanding the fact that such right of set-off shall not have been exercised by the Administrative Agent or the Lender prior to the making, filing or issuance, or service upon the Administrative Agent or the Lender of, or of notice of, any such petition, assignment for the benefit of creditors, appointment or application for the appointment of a receiver, or issuance of execution, subpoena, order or warrant. The Administrative Agent or the Lender shall promptly notify the Borrower after any such set-off and application made by the Administrative Agent or the Lender, as applicable, provided that the failure to give such notice shall not affect the validity of such set-off and application.

30.    Waiver of Consequential and Punitive Damages. Each Borrower and Lender hereby knowingly, voluntarily and intentionally waive any right they may have to consequential or punitive damages arising out of, under or in connection with the Loan Documents or the transactions contemplated therein. Further, each of Borrower and Lender hereby certify that no representative of the Administrative Agent or the Lenders, or counsel to the Administrative Agent or the Lenders, has represented, expressly or otherwise, that the Administrative Agent or the Lenders would not, in the event of such litigation, seek to enforce this waiver of consequential and punitive damages. The Borrower acknowledges that the Administrative Agent and the Lenders have been induced to accept this Note by, inter alia, the provisions of this paragraph.

31.    Anti-Money Laundering/International Trade Law Compliance. Borrower represents and warrants to the Administrative Agent and the Lender, as of the date of this Note, the date of each advance of proceeds under the Building Loan Agreement and the Credit Agreement, the date of any renewal, extension or modification of the Credit Agreement or any other Loan Document, and at all times until the Credit Agreement has been terminated and all amounts thereunder and under the other Loan Documents have been indefeasibly paid in full, that: (a) no Covered Entity (i) is a Sanctioned Person; (ii) has any of its assets in a Sanctioned Country or in the possession, custody or control of a Sanctioned Person; or (iii) does business in or with, or derives any of its operating income from investments in or transactions with, any Sanctioned Country or Sanctioned Person in violation of any law, regulation, order or directive enforced by any Compliance Authority; (b) the proceeds of the Loan will not be used to fund any operations in, finance any investments or activities in, or, make any payments to, a Sanctioned Country or Sanctioned Person in violation of any law, regulation, order or directive enforced by any Compliance Authority; (c) the funds used to repay the Loan are not derived from any unlawful activity; and (d) each Covered Entity is in compliance with, and no Covered Entity engages in any dealings or transactions prohibited by, any laws of the United States, including but not limited to any Anti-Terrorism Laws. Borrower covenants and agrees that it shall immediately notify the Administrative Agent and the Lender in writing upon the occurrence of a Reportable Compliance Event.

As used herein: “Anti-Terrorism Laws” means any laws relating to terrorism, trade sanctions programs and embargoes, import/export licensing, money laundering or bribery, all as amended, supplemented or replaced from time to time; “Compliance Authority” means each and all of the (a) U.S. Treasury Department/Office of Foreign Assets Control, (b) U.S. Treasury Department/Financial Crimes Enforcement Network, (c) U.S. State Department/Directorate of Defense Trade Controls, (d) U.S. Commerce Department/Bureau of Industry and Security, (e) U.S. Internal Revenue Service, (f) U.S. Justice Department, and (g) U.S. Securities and Exchange Commission; “Covered Entity” means the Borrower, its affiliates and subsidiaries, all Credit Parties and other guarantors, pledgors of collateral, all owners of the foregoing, and all brokers or other agents of the Borrower acting in any capacity in connection with the Loan; “Reportable Compliance Event” means that any Covered Entity becomes a Sanctioned Person, or is indicted, arraigned, investigated or custodially detained, or receives an inquiry from regulatory or law enforcement officials, in connection with any Anti-Terrorism Law or any predicate crime to any Anti-Terrorism Law, or self-discovers facts or circumstances implicating any aspect of its operations with the actual or possible violation of any Anti-Terrorism Law; “Sanctioned Country” means a country subject to a sanctions program maintained by any Compliance Authority; and “Sanctioned Person” means any individual person, group, regime, entity or thing listed or otherwise recognized as a specially designated, prohibited, sanctioned or debarred person or entity, or subject to any limitations or prohibitions (including but not limited to the blocking of property or rejection of transactions), under any order or directive of any Compliance Authority or otherwise subject to, or specially designated under, any sanctions program maintained by any Compliance Authority.

32.    Certain Taxes. The principal of and the interest on the obligations due under this Note, and any other amounts owed hereunder or under any other Loan Document for fees, costs, or otherwise, are payable in lawful money of the United States of America without deduction for or on account of any present or future tax, duty or other charge levied or imposed on this Note or other Loan Document or the proceeds hereof or the holder hereof by any government or any political subdivision thereof or by any other jurisdiction, or by any political subdivision thereof, from which any payment due with respect thereto is remitted or on account of any other restrictions and conditions of whatever nature.  If any such tax, duty or other charge is required to be deducted or withheld by law or regulation from any amount payable hereunder or under any other Loan Document, Borrower shall pay the Administrative Agent or the Lender such additional amounts (including any penalties and interest thereon) as may be necessary so that the amount actually received by the Administrative Agent or the Lender is equal to the full amount payable hereunder or under such other Loan Document had no such withholding or deduction been made. Borrower shall furnish to the Administrative Agent all tax receipts for withholding taxes, if any, paid on behalf of the Administrative Agent or the Lender within sixty (60) days of the payment of such tax.  Should Borrower not furnish the tax receipts within ninety (90) days of the due date of payment of such taxes, Borrower shall pay the Administrative Agent or the Lender a tax reimbursement equivalent to the amount of withholding tax due.

33.    USA PATRIOT Act Notice. The Lender and the Administrative Agent hereby notify you that pursuant to the requirements of the USA Patriot Act, Title III of Pub. L. 107-56 (signed into law October 26, 2001) (the “Patriot Act”), the Administrative Agent and the Lender are required to obtain, verify and record information that identifies the Borrower and any Guarantor, which information includes the name, address, tax identification number and other information regarding Borrower and such Guarantor that will allow the Administrative Agent and the Lender to identify Borrower and such Guarantor in accordance with the Patriot Act. In that connection, the Administrative Agent and the Lender may also request corporate formation documents, or other forms of identification, to verify information provided.

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IN WITNESS WHEREOF, this Building Loan Note has been duly executed by the Borrower on the date first written above.

On the ____ day of August in the year 2023 before me, the undersigned, a notary public in and for said State, personally appeared David Bistricer personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument.

Exhibit 10.3

PROJECT LOAN NOTE

FOR VALUE RECEIVED, the undersigned, DEAN OWNER LLC, a Delaware limited liability company, having an office at 4611 Twelfth Avenue, Suite 1L, Brooklyn, New York 11219 (the “Borrower”), promises to pay to VALLEY NATIONAL BANK (the “Lender”), at the offices of Valley National Bank, as administrative agent (the “Administrative Agent”) at 1 Pennsylvania Plaza, 46th Floor, New York, New York 10119 or at such other place as the holder hereof may from time to time appoint in writing, the Principal Amount as hereinafter provided, together with interest thereon as provided herein. Defined terms used in this Project Loan Note (the “Note”) shall have the meanings ascribed thereto in Section 12 hereof or if not defined in Section 12 hereof, in the Project Loan Agreement.

1.    Principal Payments. The Borrower agrees to pay the Principal Amount by making a payment equal to the entire unpaid Principal Amount on the Maturity Date.

2.    Interest. The Principal Amount shall bear interest (computed on the basis of a 360-day year for the actual number of days involved) commencing on the date hereof at a fluctuating rate per annum equal to 4.00% above the Term SOFR in effect on the first day of the applicable Interest Period; provided, however, that in no event shall the interest rate applicable to the Principal Amount outstanding hereunder be less than 5.50% per annum. Notwithstanding the foregoing, in the event an Interest Rate Protection Product is entered into with respect to this Note which does not contemplate a 5.50% floor rate for the floating rate portion of the interest rate swap, then the 5.50% floor rate designated in the preceding sentence shall not apply while such Interest Rate Protection Product is in effect. Interest shall be payable in arrears on the First Periodic Interest Date and on each Periodic Interest Date thereafter occurring, and on the Maturity Date.

(a)         Upon Borrower’s request, Lender shall give notice to Borrower of the Term SOFR as determined or adjusted for each Interest Period in accordance herewith, which determination or adjustment shall be conclusive absent manifest error. All interest hereunder on any advance shall be computed on a daily basis based upon the outstanding principal amount of all advances hereunder as of the applicable date of determination.

(b)         In the event the Administrative Agent shall have determined that by reason of circumstances affecting the Term SOFR, adequate and reasonable means do not exist for ascertaining the Term SOFR for any Interest Period with respect to any advance hereunder (unless Benchmark Replacement (as defined below) is applicable, in which case the interest rate shall be determined as set forth in Section 4 below), the per annum rate of interest (the “Alternate Rate”) applicable to such advance during such Interest Period shall be equal to 1.00% above the Wall Street Journal Prime Rate, subject to the minimum rate of interest specified in the first paragraph of this Section.

(c)         If, after the date of this Note, Lender shall determine (which determination shall be final and conclusive absent manifest error) that any Change in Law shall make it impossible or unlawful for Lender to make, fund or maintain SOFR Advances, then Lender shall notify Borrower in writing. From the date of such notice until Lender notifies Borrower in writing that the circumstances giving rise to such determination no longer apply, (i) any obligation of Lender contained herein or in any agreement of Lender to make available SOFR Advances shall immediately be suspended, and (ii) any such SOFR Advances then outstanding shall instead bear interest, at Lender’s option, at the Alternative Rate, such change taking effect either (x) on the last day of the then current Interest Period if Lender may lawfully continue to maintain SOFR Advances to such day, or (y) immediately if Lender may not lawfully continue to maintain SOFR Advances (provided the Lender shall indicate its election of (x) or (y) by notice to the Borrower together with the date such change shall take effect). Upon the occurrence of any of the foregoing events, Borrower shall pay to Lender immediately upon demand such amounts as may be reasonably necessary to compensate Lender for any fines, fees, charges, penalties or other costs actually incurred or payable by Lender as a result thereof and which are attributable to any SOFR Advances made available to Borrower hereunder, and any reasonable allocation made by Lender among its operations shall be conclusive and binding upon Borrower.

(d)         Interest hereunder will be calculated based on the actual number of days that principal is outstanding over a year of 360 days. In no event will the rate of interest hereunder exceed the maximum rate allowed by law.

(e)         After the occurrence and during the continuance of an Event of Default, the Borrower shall pay interest at the Default Rate. After maturity, the Principal Amount and accrued interest thereon, shall, at the option of the Lender, be payable on demand.

For purposes hereof, the following terms shall have the following meanings:

“Business Day” shall mean any day that is not a Saturday, Sunday or other day on which banks in New York City are required or permitted to close; provided, when used in connection with determining Term SOFR, the term “Business Day” shall also exclude any day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.

“Floor” means a rate of interest equal to 1.50 %

“SOFR” means a rate per annum equal to the secured overnight financing rate for such Business Day published by the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate) on the website of the Federal Reserve Bank of New York, currently at http://www.newyorkfed.org (or any successor source for the secured overnight financing rate identified as such by the administrator of the secured overnight financing rate from time to time).

“SOFR Advance” shall mean an advance that bears interest at a rate based on Term SOFR.

“Term SOFR” shall mean, for any calculation with respect to a SOFR Advance, the Term SOFR Reference Rate for a tenor comparable to the applicable Interest Period on the day (such day, the “Periodic Term SOFR Determination Day”) that is two (2) Business Days prior to the first day of such Interest Period, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City time) on any Periodic Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date (as defined below) with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding Business Day is not more than three (3) Business Days prior to such Periodic Term SOFR Determination Day; provided, further, that if Term SOFR determined as provided above shall ever be less than the Floor, then Term SOFR shall be deemed to be the Floor. Notwithstanding the foregoing, in the event an Interest Rate Protection Product is entered into with respect to this Note which does not contemplate a floor rate for the floating rate portion of the interest rate swap, then the Floor designated in the preceding sentence shall not apply while such Interest Rate Protection Product is in effect.

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

“Term SOFR Reference Rate” shall mean the forward-looking term rate based on SOFR.

3.    Term SOFR Conforming Changes. In connection with the use or administration of Term SOFR, Lender shall have the right to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of Borrower or any other party to any other Loan Document. Lender shall promptly notify Borrower of the effectiveness of any Conforming Changes in connection with the use or administration of Term SOFR.

4.    Benchmark Replacement Setting. Notwithstanding anything to the contrary herein or in any other Loan Document:

(a)         Replacing Benchmarks. Upon the occurrence of a Benchmark Transition Event, the Benchmark Replacement will replace the then-current Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. on the tenth (10th) Business Day after the date notice of such Benchmark Replacement is provided to Borrower without any amendment to this Note or any other Loan Document, or further action or consent of Borrower. At any time that the administrator of the then-current Benchmark has permanently or indefinitely ceased to provide such Benchmark or such Benchmark has been announced by the regulatory supervisor for the administrator of such Benchmark pursuant to public statement or publication of information to be no longer representative of the underlying market and economic reality that such Benchmark is intended to measure and that representativeness will not be restored, Borrower may revoke any request for a borrowing of, or continuation of advances to be made or continued that would bear interest by reference to such Benchmark until Borrower’s receipt of notice from Lender that a Benchmark Replacement has replaced such Benchmark, and, failing that, Borrower will be deemed to have converted any such request into a request for a borrowing of or conversion to advances bearing interest at the Prime Rate.

(b)         Subsequent Rate Conversion. At any time following the effectiveness of a Benchmark Replacement in accordance with this Section, Lender shall have the right, by providing written notice to Borrower, to convert the then-current Benchmark to a different Alternative Rate in accordance with and subject to the conditions set forth in clause (1) of the definition of “Benchmark Replacement.” Such Alternative Rate shall be deemed to be a “Benchmark Replacement” hereunder and will replace the then-current Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. on the tenth (10th) Business Day after the date notice of such Benchmark Replacement is provided to Borrower without any amendment to this Note or any other Loan Document, or further action or consent of Borrower.

(c)         Benchmark Replacement Conforming Changes. In connection with the implementation and administration of a Benchmark Replacement, Lender will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Note or such other Loan Document.

(d)         Notices; Standards for Decisions and Determinations. Lender will promptly notify Borrower of (i) the implementation of any Benchmark Replacement and (ii) the effectiveness of any Conforming Changes; provided that any failure to so notify will not affect Lender’s rights hereunder. Any determination, decision or election that may be made by Lender pursuant to this Section, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action, will be conclusive and binding absent manifest error and may be made in its sole discretion and without consent from any other party hereto, except, in each case, as expressly required pursuant to this Section.

(e)         Unavailability of Tenor of Benchmark. At any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including the Term SOFR Reference Rate), then Lender may remove any tenor of such Benchmark that is unavailable or non-representative for Benchmark (including Benchmark Replacement) settings and (ii) Lender may reinstate any such previously removed tenor for Benchmark (including Benchmark Replacement) settings.

(f)         Disclaimer. Lender does not warrant or accept responsibility for, and shall not have any liability with respect to (a) the administration, submission, calculation of or any other matter related to the rates in the definition of “Term SOFR” or with respect to any component definition thereof or rates referenced in the definition thereof or any alternative, comparable or successor rate thereto (including any Benchmark or any Benchmark Replacement or the effect, implementation or composition of any Conforming Changes (defined above)) and including, without limitation, whether the composition or characteristics of any such alternative, successor or replacement reference rate, as it may or may not be adjusted pursuant hereto, will be similar to, or produce the same value or economic equivalence of, such Benchmark or any other Benchmark or have the same volume or liquidity as did such Benchmark or any other Benchmark prior to its discontinuance or unavailability, or (b) the impact or effect of such alternative, successor or replacement reference rate or Conforming Changes on any other financial products or agreements in effect or offered to any obligor or any of their respective affiliates, including, without limitation, any Interest Rate Protection Product.

(g)         Definitions.

“AMERIBOR” shall mean, for the corresponding tenor, the arithmetic average AMERIBOR benchmark interest rate as provided by American Financial Exchange, LLC as administrator of the benchmark (or a successor administrator) to, and published by, authorized distributors of AMERIBOR.

“Available Tenor” shall mean, as of any date of determination and with respect to the then-current Benchmark, as applicable, (x) if the then-current Benchmark is a term rate, any tenor for such Benchmark that is or may be used for determining the length of an Interest Period or (y) otherwise, any payment period for interest calculated with reference to such Benchmark, as applicable, pursuant to this Note as of such date.

“Benchmark” shall mean, initially, the Term SOFR Reference Rate; provided that if a Benchmark Transition Event has occurred with respect to the Term SOFR Reference Rate or the then-current Benchmark, the “Benchmark” shall mean the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate. Any reference to “Benchmark” shall include, as applicable, the published component used in the calculation thereof.

“Benchmark Replacement” shall mean, for any Available Tenor:

(1)         For purposes of clause (a) or (b) of this Section, any of the alternative rates set forth below, in any combination of choices or in such order of priority as Lender shall determine in its sole and absolute discretion and which is (i) administratively feasible for Lender to establish and provide to its customers, (ii) a primary rate being utilized by banks in the New York lending market, and (iii) generally used by Lender in its administration of loans held in its portfolio similar to the Loan (each, an “Alternative Rate”):

(i)         the sum of: (i) Daily Simple SOFR and (ii) an adjustment (which may be a positive or negative value or zero) that has been selected by Lender, giving due consideration to any evolving or then-prevailing market convention, including any applicable recommendations made by the Relevant Governmental Body, for U.S. dollar-denominated syndicated or bilateral credit facilities at such time; or

(ii)         the sum of (i) Daily Compounded SOFR and (ii) an adjustment (which may be a positive or negative value or zero) that has been selected by Lender, giving due consideration to any evolving or then-prevailing market convention, including any applicable recommendations made by the Relevant Governmental Body, for U.S. dollar-denominated syndicated or bilateral credit facilities at such time; or

(iii)         the sum of (i) Term BSBY and (ii) an adjustment (which may be a positive or negative value or zero) that has been selected by Lender, giving due consideration to any evolving or then-prevailing market convention, including any applicable recommendations made by the Relevant Governmental Body, for U.S. dollar-denominated syndicated or bilateral credit facilities at such time; or

(iv)         the sum of (i) AMERIBOR and (ii) an adjustment (which may be a positive or negative value or zero) that has been selected by Lender, giving due consideration to any evolving or then-prevailing market convention, including any applicable recommendations made by the Relevant Governmental Body, for U.S. dollar-denominated syndicated or bilateral credit facilities at such time; or

(v)         the sum of (i) any SOFR Average and (ii) an adjustment (which may be a positive or negative value or zero) that has been selected by Lender, giving due consideration to any evolving or then-prevailing market convention, including any applicable recommendations made by the Relevant Governmental Body, for U.S. dollar-denominated syndicated or bilateral credit facilities at such time; or

(vi)         any other reference rate reasonably selected by Lender that Lender in its sole discretion commences to offer to its customers generally; or

(vii)         if no available reference rate satisfies the requirements set forth in this paragraph 1 and in the provisos below, the Prime Rate;

provided that, in the case of clauses 1(iii), 1(iv), 1(v) or 1(vi) above, the relevant Alternative Rate is displayed on a screen or other information service selected by Lender in its reasonable discretion;

provided, further, that in the event any of the advances is hedged pursuant to one or more Interest Rate Protection Products (the “Hedged Exposure”), then the Benchmark Replacement for such Hedged Exposure shall have the meaning in effect from time to time ascribed to the “Floating Rate Option” under the relevant Confirmation(s) (as each of such terms is defined in the related Interest Rate Protection Products); and

provided, further, that, if the Benchmark Replacement as determined pursuant to clause (1) above would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Note and the other Loan Documents.

Notwithstanding the foregoing, in the event an Interest Rate Protection Product is entered into with respect to this Note which does not contemplate a floor rate for the floating rate portion of the interest rate swap, then the Floor designated in the preceding sentence shall not apply while such Interest Rate Protection Product is in effect.

“Benchmark Replacement Date” shall mean the earliest to occur of the following events with respect to the then-current Benchmark: (a) in the case of clause (a) of the definition of “Benchmark Transition Event”, the later of (i) the date of the public statement or publication of information referenced therein and (ii) the date on which the administrator of such Benchmark permanently or indefinitely ceases to provide all Available Tenors of such Benchmark; or (b) in the case of clause (b) of the definition of “Benchmark Transition Event”, the first date on which such Benchmark has been determined and announced by or on behalf of the administrator of such Benchmark or the regulatory supervisor for the administrator of such Benchmark to be non-representative of the underlying market and economic reality that such Benchmark is intended to measure and that representativeness will not be restored; provided that such non-representativeness, non-compliance or non-alignment will be determined by reference to the most recent statement or publication referenced in such clause (b) and even if any Available Tenor of such Benchmark continues to be provided on such date. For the avoidance of doubt, the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (a) or (b) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark.

“Benchmark Transition Event” shall mean, with respect to any then-current Benchmark, the occurrence of a public statement or publication of information by or on behalf of the administrator of the then-current Benchmark, the regulatory supervisor for the administrator of such Benchmark, the Board of Governors of the Federal Reserve System, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for such Benchmark, a resolution authority with jurisdiction over the administrator for such Benchmark or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark, announcing or stating that (a) such administrator has ceased or will cease on a specified date to provide all Available Tenors of such Benchmark, permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark or (b) all Available Tenors of such Benchmark are or will no longer be representative of the underlying market and economic reality that such Benchmark is intended to measure and that representativeness will not be restored.

“Conforming Changes” shall mean, with respect to either the use or administration of Term SOFR, or with respect to the use, administration, adoption or implementation of any Benchmark Replacement, any technical, administrative or operational changes (including without limitation changes to the definition of “Prime Rate”, the definition of “Business Day,” the definition of “Interest Period” or any similar or analogous definition, timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that Lender decides in its sole but reasonable discretion may be necessary or appropriate to reflect the adoption and implementation of any such rate or to permit the use and administration thereof by Lender in a manner substantially consistent with market practice (or, if Lender decides that adoption of any portion of such market practice is not administratively feasible or if Lender determines that no market practice for the administration of any such rate exists, in such other manner of administration as Lender reasonably decides is necessary in connection with the administration of this Note and the other Loan Documents and in a manner applied by Lender to loans held in its portfolio similar to the Loan).

“Daily Compounded SOFR” shall mean, for any day, SOFR, with interest accruing on a compounded daily basis, with the methodology and conventions for this rate (which will include compounding in arrears with a lookback) being established by Lender in accordance with the methodology and conventions for this rate recommended by the Relevant Governmental Body for determining “Daily Compounded SOFR” for bilateral business loans; provided, that if Lender decides that any such convention is not administratively feasible for Lender, then Lender may establish another convention in its reasonable discretion.

“Daily Simple SOFR” shall mean, for any day, SOFR, with the conventions for this rate (which will include a lookback) being established by Lender in accordance with the conventions for this rate recommended by the Relevant Governmental Body for determining “Daily Simple SOFR” for bilateral business loans; provided, that if Lender decides that any such convention is not administratively feasible for Lender, then Lender may establish another convention in its reasonable discretion.

“Relevant Governmental Body” shall mean the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or any successor thereto.

“SOFR Average” shall mean a rate per annum equal to any of the 30-day, 90-day or 180-day rolling compounded averages of SOFR published on such Business Day by the Federal Reserve Bank of New York (or a successor administrator of the compounded average SOFR rates) on the website of the Federal Reserve Bank of New York, currently at http://www.newyorkfed.org (or any successor source for the compounded average SOFR rates identified as such by the administrator of the compounded average SOFR rates from time to time).

“Term BSBY” shall mean, for the applicable corresponding tenor, the Bloomberg Short-Term Bank Yield Index provided by Bloomberg Index Services Limited as administrator of the benchmark (or a successor administrator).

5.    Extension Options. Subject to the terms and conditions set forth in the Credit Agreement, the Borrower shall have the option to extend the term of the Loan from the Initial Maturity Date to the First Extended Maturity Date and thereafter from the First Extended Maturity Date to the Second Extended Maturity Date.

6.    Prepayments. (a) Upon not less than ten (10) days prior written notice to the Administrative Agent, specifying the date of prepayment, the Borrower shall have the right to prepay the Principal Amount in whole, or in part, together with: (i) all accrued interest to the date of such prepayment, and (ii) any applicable Funding Loss, and/or Additional Interest, which may be due and payable under any Interest Rate Protection Product, if applicable, after giving effect to such prepayment. Each prepayment, other than a prepayment in connection with a casualty or condemnation or final repayment of the Loan, must equal at least the Minimum Prepayment Amount;

(b)    Amounts paid or prepaid will not be readvanced.

7.    General. Each payment under this Note, including without limitation, all payments and/or prepayments of principal and/or interest, shall be made by the Borrower to the Lender at the office of the Administrative Agent at 1 Pennsylvania Plaza, 46th Floor, New York, New York 10119 or at such other place as the Administrative Agent may from time to time appoint in writing in immediately available funds by 3:00 P.M., New York City time, on the due date for such payment. The failure of the Borrower to make any such payment by such time shall not constitute a default hereunder, provided that such payment is made on such due date, but any such payment made after 3:00 P.M., New York City time, on such due date shall be deemed to have been made on the next Business Day for the purpose of calculating interest on the amount outstanding on this Note. If any payment under this Note shall be due and payable on a day which is not a Business Day, the due date thereof shall be extended to the next Business Day (except as otherwise provided in the definition of Interest Period), and interest shall be payable at the applicable rate specified herein during such extension.

8.    Break Funding Indemnification. Borrower agrees to indemnify Lender against any liabilities, losses or out-of-pocket expenses, including, without limitation, any loss or expense sustained or incurred in liquidating or employing deposits from third parties, and any loss or expense incurred in connection with funds acquired to effect, fund or maintain any SOFR Advance (or any part thereof) which Lender sustains or incurs as a consequence of either (i) Borrower’s failure to make a payment on the due date thereof, (ii) Borrower’s revocation (expressly, by later inconsistent notices or otherwise) in whole or in part of any notice given to Lender to request, convert, renew or prepay any SOFR Advance, or (iii) Borrower’s payment or prepayment (whether voluntary, after acceleration of the maturity of this Note or otherwise) or conversion of any SOFR Advance on a day other than the last day of the applicable Interest Period. A notice as to any amounts payable pursuant to this paragraph given to Borrower by Lender shall, in the absence of manifest error, be conclusive and shall be payable upon demand. Borrower’s indemnification obligations hereunder shall survive the payment in full of the advances and all other amounts payable hereunder. Any sums payable to Lender hereunder from time to time is sometimes referred to as a “Funding Loss”. For clarity, the losses described in this Paragraph are intended to refer to “breakage fees” incurred by the Lender as a result of the situations described in clauses (i) – (iii) above.

9.    Increased Costs; Yield Protection. On written demand, together with written evidence of the justification therefor, Borrower agrees to pay the Lender all direct costs incurred, any losses suffered or payments made by the Lender, as a result of any Change in Law (hereinafter defined), imposing any reserve, deposit, allocation of capital or similar requirement (including without limitation, Regulation D of the Board of Governors of the Federal Reserve System) on the Lender, its holding company or any of their respective assets relative to the Loan, in each case to the extent such amounts are charged to similarly situated borrowers of loans (similar to the Loan) made by Lender or its affiliates. “Change in Law” means the occurrence, after the date of this Note, 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) by any governmental authority; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall 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 Lender 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.

10.    Capital Adequacy. If any of (i) the enactment or promulgation of, or any change or phasing in of, any United States or foreign law or regulation or in the interpretation thereof by any United States or foreign governmental authority charged with the administration thereof, (ii) compliance with any directive, guideline or request from any central bank or United States or foreign governmental authority (whether or not having the force of law) promulgated or made after the date hereof, or (iii) compliance with the Risk-Based Capital Guidelines of the Federal Reserve System as set forth in 12 C.F.R. Parts 208 and 225, or of the Comptroller of the Currency, Department of the Treasury, as set forth in 12 C.F.R. Part 3, or similar legislation, rules, guidelines, directives or regulations under any applicable United States or foreign governmental authority affects or would affect the amount of capital required to be maintained by the Lender (or any lending office of the Lender) or any corporation directly or indirectly owning or controlling the Lender, and the Lender shall have determined that such enactment, promulgation, change or compliance has the effect of reducing the rate of return on the Lender’s (or such lending office’s or controlling corporation’s) capital or the asset value to the Lender (or such lending office or controlling corporation) of this Note as a consequence, directly or indirectly, of the Lender’s obligations to make and maintain the funding of all or any portion of the Principal Amount hereunder at a level below that which the Lender (or such lending office or controlling corporation) could have achieved but for such enactment, promulgation, change or compliance (after taking into account the Lender’s (or such lending office’s or controlling corporation’s) policies regarding capital adequacy) by an amount deemed by the Lender to be material, then, upon demand by the Administrative Agent or the Lender, the Borrower shall promptly pay to the Lender such additional amount or amounts as shall be sufficient to compensate the Lender (or such lending office or controlling corporation) for such reduction on the rate of return or asset value, provided that, in any such case, such amounts are charged to similarly situated borrowers of loans (similar to the Loan) made by Lender or its affiliates. The Administrative Agent’s or the Lender’s determination of such amount or amounts that will compensate the Lender (or such lending office or controlling corporation) for such reductions shall be made in good faith and presumed correct, absent manifest error, and shall be evidenced by a certification of such amount or amounts delivered by the Administrative Agent or the Lender to the Borrower.

11.    Option to Fund; Applicability to Participants; Survival. (a) The Lender has indicated that the Lender may wish to purchase one or more deposits in order to fund or maintain its funding of the Principal Amount, it being understood that the provisions of this Note relating to such funding are included only for the purpose of determining the rate of interest to be paid on the Principal Amount and any amounts owing under Sections 8, 9 and 10 above. The Lender shall be entitled to fund and maintain its funding of all or any part of the Principal Amount in any manner it sees fit, provided that all determinations hereunder (including, without limitation, all determinations under Sections 8, 9 and 10 of this Note) shall be made as if the Lender had actually funded and maintained the Principal Amount through the purchase of such deposits in an amount equal to the Principal Amount and having a maturity corresponding to the applicable Interest Period.

(b)    The Borrower agrees that for purposes of Sections 8, 9 and 10 of this Note any reference to the Lender therein shall also include any participant of the Lender to the extent of its pro rata interest in this Note, and in this respect the Borrower agrees that the Lender, on behalf of any such participant, may collect directly from the Borrower, and the Borrower agrees to pay, any sums owing to such participant under Sections 8, 9 and 10 of this Note. In connection with a participation, no participant shall be entitled to receive any greater amount under Sections 8, 9 and 10 hereof as a result of such participation than the Lender would be entitled to receive immediately prior thereto unless such claim would have arisen even if such participation had not occurred.

(c)    The obligations of the Borrower under paragraphs 8, 9 and 10 above shall survive the maturity of the Note, and the payment of this Note and all other amounts payable under this Note.

12.    Definitions. The following terms shall have the following meanings:

13.    Interest and Tax Reserve Collateral Account. Pursuant to Section 6.30 of the Mortgage and the Interest and Tax Reserve Pledge Agreement (as that term is defined in the Mortgage), the Borrower may open and maintain during the term of any extension of the Loan the Interest Reserve and Tax Reserve Collateral Account (as that term is defined in the Interest and Tax Reserve Pledge Agreement). The Interest Reserve and Tax Reserve Account shall be used for the purpose of facilitating the payment of interest payments due on each Periodic Interest Date and real estate taxes when due during any extension of the term of the Loan. Notwithstanding anything to the contrary set forth herein, the lack of sufficient funds in the Interest Reserve and Tax Reserve Collateral Account to pay interest on the Loan at any time shall not affect the Borrower’s obligation to pay interest on the Loan and real estate taxes as and when same is due and payable.

14.    Mortgage Encumbers Premises; Reference to Mortgage, Project Loan Agreement and Credit Agreement. This Note is secured by, among other things, the Mortgage, which Mortgage encumbers the Premises. This Note is one of the Notes referred to in the Mortgage, the terms of which are incorporated herein, and its maturity is subject to acceleration upon the terms set forth in the Mortgage. This Note is one of the Notes referred to in the Project Loan Agreement, the terms of which are incorporated herein, and its maturity is subject to acceleration upon the terms set forth in the Project Loan Agreement. This Note is one of the Project Loan Notes referred to in the Credit Agreement, the terms of which are incorporated herein, and its maturity is subject to acceleration upon the terms set forth in the Credit Agreement. Sums advanced hereunder shall be advanced pursuant to the terms of the Project Loan Agreement and the Credit Agreement.

15.    Note Acceleration. This Note, including all outstanding principal and interest hereon, shall become due and payable (a) immediately, upon the occurrence of an Event of Default of a type specified in Section 7.1(f) or (g) of the Mortgage, or (b) at the option of the Administrative Agent, upon the occurrence of and during the continuance of (i) any other Event of Default, or (ii) after the giving of any required notice and/or the passage of any applicable cure period.

16.    Note as Evidence of Debt. This Note and the Project Loan Agreement shall evidence and the Mortgage shall secure the indebtedness described herein, and any future loans, advances, payments and disbursements hereunder or pursuant to the Mortgage shall be added to the principal indebtedness hereunder.

17.    No Waiver. No failure on the part of the Administrative Agent or the Lender to exercise, and no delay in exercising, any right, remedy or power hereunder or under any other document or agreement executed in connection herewith shall operate as a waiver thereof, nor shall any single or partial exercise by the Administrative Agent or the Lender of any right, remedy or power hereunder or under any other document or agreement executed in connection herewith preclude any other or future exercise thereof or of any other right, remedy or power.

18.    Remedies Cumulative. Each and every right, remedy and power hereby granted to the Administrative Agent or the Lender or allowed it by law or other agreement shall be cumulative and not exclusive and may be exercised by the Administrative Agent or the Lender from time to time.

19.    Attorney’s Fees and Court Costs. If this Note shall be collected by legal proceedings or through any court or shall be referred to an attorney because of any default, the Borrower agrees to pay all reasonable attorney’s fees and court costs incurred by the Administrative Agent or the Lender.

20.    Governing Law. This Note shall be governed by and construed in accordance with the laws of the State of New York without regard to principles of conflicts of law.

21.    No Presentment, Demand or Notice Required. The Borrower and any guarantor of this Note waive presentment for payment, demand, notice of demand and of dishonor and nonpayment of this Note, protest and notice of protest, diligence in collecting, and the bringing of suit against any other party, and agree to all renewals, extensions, modifications, partial payments, releases or substitutions of security, in whole or in part, with or without notice, before or after the Maturity Date.

22.    Change, Modification or Waiver. This Note may not be changed or modified orally, nor may any right or provision hereof be waived orally, but in each instance only by an instrument in writing signed by the party against which enforcement of such change, modification or waiver is sought.

23.    No Usury. In the event that the Administrative Agent or the Lender, in enforcing its rights hereunder, determines that charges and fees incurred in connection with this Note may, under applicable laws relative to usury, cause the interest rate herein to exceed the maximum rate allowed by law, then such interest shall be recalculated and any excess over the maximum interest permitted by said laws shall be credited to the then outstanding Principal Amount to reduce said balance by the amount of any such excess without prepayment premium or breakage losses. It is the intent of the parties hereto that the Borrower, under no circumstances, shall be required to pay, nor shall the Administrative Agent or the Lender be entitled to collect, any interest which is in excess of the maximum rate permitted under the applicable laws relative to usury.

24.    Late Charge. In the event that any payment of interest, principal, or principal and interest shall be overdue for a period in excess of ten (10) days, other than the final payment of principal due upon maturity (whether by acceleration or otherwise), a “late charge” calculated at the rate of 5% on such overdue installment may be charged by the Administrative Agent or the Lender for the purpose of defraying the expenses incident to handling such delinquent payments, which “late charge” shall be payable on the same day of the month as payments of interest hereunder. Such charge shall be in addition to, and not in lieu of, any other remedy the Administrative Agent or the Lender may have and is in addition to any reasonable fees and charges of any agents or attorneys which the Lender is entitled to employ upon any default hereunder, whether authorized herein or by law.

25.    Waiver of Trial by Jury. THE BORROWER AND THE LENDER BY ACCEPTANCE HEREOF HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS NOTE, THE MORTGAGE AND THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREIN. FURTHER, THE BORROWER HEREBY CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF THE ADMINISTRATIVE AGENT OR THE LENDER OR COUNSEL TO THE ADMINISTRATIVE AGENT OR THE LENDER HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE ADMINISTRATIVE AGENT OR THE LENDER WOULD NOT, IN THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION. THE BORROWER ACKNOWLEDGES THAT THE ADMINISTRATIVE AGENT OR THE LENDER HAS BEEN INDUCED TO MAKE THE LOAN BY, INTER ALIA, THE PROVISIONS OF THIS PARAGRAPH. IN AN ACTION COMMENCED IN THE COMMERCIAL DIVISION, NEW YORK STATE SUPREME COURT, THE PARTIES HEREBY AGREE, SUBJECT TO THE REQUIREMENTS FOR A CASE TO BE HEARD IN THE COMMERCIAL DIVISION, TO APPLY, AT ADMINISTRATIVE AGENT’S ELECTION, THE COURT’S ACCELERATED ADJUDICATION PROCEDURES SET FORTH IN RULE 9 OF THE RULES OF PRACTICE FOR THE COMMERCIAL DIVISION, IN CONNECTION WITH ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO THIS NOTE, OR THE BREACH, TERMINATION, ENFORCEMENT OR VALIDITY THEREOF.

26.    Headings Descriptive. The headings of the several sections, subsections, paragraphs and subparagraphs of this Note are inserted for convenience only and shall not in any way affect the meaning or construction of any provision of this Note.

27.    Additional Interest. The Borrower shall promptly pay directly to the Administrative Agent for the benefit of the applicable Lender upon demand any Additional Interest that may be payable from time to time under any Interest Rate Protection Product.

28.    Severability. Every provision of this Note is intended to be severable. If any term or provision of this Note shall be invalid, illegal or unenforceable for any reason, the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby.

29.    Right of Set-Off. In addition to any rights and remedies of the Administrative Agent or the Lender provided by law, upon the occurrence of an Event of Default and acceleration of the obligations owing in connection with this Note, or at any time upon the occurrence and during the continuance of an Event of Default, the Administrative Agent and the Lender shall have the right, without prior notice to the Borrower, any such notice being expressly waived by the Borrower, to the extent not prohibited by applicable law, to set off and apply against any indebtedness of the Borrower to the Administrative Agent or the Lender, any amount owing from the Administrative Agent or the Lender to the Borrower, at, or at any time after, the happening of any of the above‑mentioned events. To the extent not prohibited by applicable law, the aforesaid right of set off may be exercised by the Administrative Agent or the Lender against the Borrower or against any trustee in bankruptcy, custodian, debtor in possession, assignee for the benefit of creditors, receiver, or execution, judgment or attachment creditor of the Borrower, or against anyone else claiming through or against the Borrower or such trustee in bankruptcy, custodian, debtor in possession, assignee for the benefit of creditors, receiver, or execution, judgment or attachment creditor, notwithstanding the fact that such right of set-off shall not have been exercised by the Administrative Agent or the Lender prior to the making, filing or issuance, or service upon the Administrative Agent or the Lender of, or of notice of, any such petition, assignment for the benefit of creditors, appointment or application for the appointment of a receiver, or issuance of execution, subpoena, order or warrant. The Administrative Agent or the Lender shall promptly notify the Borrower after any such set-off and application made by the Administrative Agent or the Lender, as applicable, provided that the failure to give such notice shall not affect the validity of such set-off and application.

30.    Waiver of Consequential and Punitive Damages. Each Borrower and Lender hereby knowingly, voluntarily and intentionally waive any right they may have to consequential or punitive damages arising out of, under or in connection with the Loan Documents or the transactions contemplated therein. Further, each of Borrower and Lender hereby certify that no representative of the Administrative Agent or the Lenders, or counsel to the Administrative Agent or the Lenders, has represented, expressly or otherwise, that the Administrative Agent or the Lenders would not, in the event of such litigation, seek to enforce this waiver of consequential and punitive damages. The Borrower acknowledges that the Administrative Agent and the Lenders have been induced to accept this Note by, inter alia, the provisions of this paragraph.

31.    Anti-Money Laundering/International Trade Law Compliance. Borrower represents and warrants to the Administrative Agent and the Lender, as of the date of this Note, the date of each advance of proceeds under the Project Loan Agreement and the Credit Agreement, the date of any renewal, extension or modification of the Credit Agreement or any other Loan Document, and at all times until the Credit Agreement has been terminated and all amounts thereunder and under the other Loan Documents have been indefeasibly paid in full, that: (a) no Covered Entity (i) is a Sanctioned Person; (ii) has any of its assets in a Sanctioned Country or in the possession, custody or control of a Sanctioned Person; or (iii) does business in or with, or derives any of its operating income from investments in or transactions with, any Sanctioned Country or Sanctioned Person in violation of any law, regulation, order or directive enforced by any Compliance Authority; (b) the proceeds of the Loan will not be used to fund any operations in, finance any investments or activities in, or, make any payments to, a Sanctioned Country or Sanctioned Person in violation of any law, regulation, order or directive enforced by any Compliance Authority; (c) the funds used to repay the Loan are not derived from any unlawful activity; and (d) each Covered Entity is in compliance with, and no Covered Entity engages in any dealings or transactions prohibited by, any laws of the United States, including but not limited to any Anti-Terrorism Laws. Borrower covenants and agrees that it shall immediately notify the Administrative Agent and the Lender in writing upon the occurrence of a Reportable Compliance Event.

As used herein: “Anti-Terrorism Laws” means any laws relating to terrorism, trade sanctions programs and embargoes, import/export licensing, money laundering or bribery, all as amended, supplemented or replaced from time to time; “Compliance Authority” means each and all of the (a) U.S. Treasury Department/Office of Foreign Assets Control, (b) U.S. Treasury Department/Financial Crimes Enforcement Network, (c) U.S. State Department/Directorate of Defense Trade Controls, (d) U.S. Commerce Department/Bureau of Industry and Security, (e) U.S. Internal Revenue Service, (f) U.S. Justice Department, and (g) U.S. Securities and Exchange Commission; “Covered Entity” means the Borrower, its affiliates and subsidiaries, all Credit Parties and other guarantors, pledgors of collateral, all owners of the foregoing, and all brokers or other agents of the Borrower acting in any capacity in connection with the Loan; “Reportable Compliance Event” means that any Covered Entity becomes a Sanctioned Person, or is indicted, arraigned, investigated or custodially detained, or receives an inquiry from regulatory or law enforcement officials, in connection with any Anti-Terrorism Law or any predicate crime to any Anti-Terrorism Law, or self-discovers facts or circumstances implicating any aspect of its operations with the actual or possible violation of any Anti-Terrorism Law; “Sanctioned Country” means a country subject to a sanctions program maintained by any Compliance Authority; and “Sanctioned Person” means any individual person, group, regime, entity or thing listed or otherwise recognized as a specially designated, prohibited, sanctioned or debarred person or entity, or subject to any limitations or prohibitions (including but not limited to the blocking of property or rejection of transactions), under any order or directive of any Compliance Authority or otherwise subject to, or specially designated under, any sanctions program maintained by any Compliance Authority.

32.    Certain Taxes. The principal of and the interest on the obligations due under this Note, and any other amounts owed hereunder or under any other Loan Document for fees, costs, or otherwise, are payable in lawful money of the United States of America without deduction for or on account of any present or future tax, duty or other charge levied or imposed on this Note or other Loan Document or the proceeds hereof or the holder hereof by any government or any political subdivision thereof or by any other jurisdiction, or by any political subdivision thereof, from which any payment due with respect thereto is remitted or on account of any other restrictions and conditions of whatever nature.  If any such tax, duty or other charge is required to be deducted or withheld by law or regulation from any amount payable hereunder or under any other Loan Document, Borrower shall pay the Administrative Agent or the Lender such additional amounts (including any penalties and interest thereon) as may be necessary so that the amount actually received by the Administrative Agent or the Lender is equal to the full amount payable hereunder or under such other Loan Document had no such withholding or deduction been made. Borrower shall furnish to the Administrative Agent all tax receipts for withholding taxes, if any, paid on behalf of the Administrative Agent or the Lender within sixty (60) days of the payment of such tax.  Should Borrower not furnish the tax receipts within ninety (90) days of the due date of payment of such taxes, Borrower shall pay the Administrative Agent or the Lender a tax reimbursement equivalent to the amount of withholding tax due.

33.    USA PATRIOT Act Notice. The Lender and the Administrative Agent hereby notify you that pursuant to the requirements of the USA Patriot Act, Title III of Pub. L. 107-56 (signed into law October 26, 2001) (the “Patriot Act”), the Administrative Agent and the Lender are required to obtain, verify and record information that identifies the Borrower and any Guarantor, which information includes the name, address, tax identification number and other information regarding Borrower and such Guarantor that will allow the Administrative Agent and the Lender to identify Borrower and such Guarantor in accordance with the Patriot Act. In that connection, the Administrative Agent and the Lender may also request corporate formation documents, or other forms of identification, to verify information provided.

[Remainder of page intentionally left blank; signature page follows]

IN WITNESS WHEREOF, this Project Loan Note has been duly executed by the Borrower on the date first written above.

On the ____ day of August in the year 2023 before me, the undersigned, a notary public in and for said State, personally appeared David Bistricer personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument.

Exhibit 10.4

CREDIT AGREEMENT

by and among

DEAN OWNER LLC

as Borrower,

THE LENDERS PARTY HERETO,

and

VALLEY NATIONAL BANK,

as Administrative Agent

Dated as of August 10, 2023

TABLE OF CONTENTS

SCHEDULES AND EXHIBITS

CREDIT AGREEMENT

CREDIT AGREEMENT (this “Agreement”) dated as of August 10, 2023, by and among DEAN OWNER LLC, a Delaware limited liability company, having an office at 4611 Twelfth Avenue, Suite 1L, Brooklyn, New York 11219 (“Borrower”), the lenders party hereto (together with their respective assigns, the “Lenders”, each a “Lender”) and VALLEY NATIONAL BANK, as administrative agent for the benefit of itself as a Lender and other Lenders (in such capacity, the “Administrative Agent”), having an office at 1 Pennsylvania Plaza, 46th Floor, New York, New York 10119.

ARTICLE I
DEFINITIONS AND PRINCIPLES OF CONSTRUCTION

Section 1.1    Definitions

(a)    As used in this Agreement, terms defined in the preamble have the meanings therein indicated, and the following terms have the following meanings:

“Acquisition Loan”: That certain loan in the amount of $36,985,000 made by the Lenders to Borrower to finance, among other things, a portion of the costs incurred by Borrower in connection with financing the acquisition of the Premises and the refinancing of debt on the Premises, which Acquisition Loan is evidenced by the Acquisition Loan Notes and secured by, among other things, the Acquisition Loan Mortgage.

“Acquisition Loan Mortgage”: That certain Consolidation, Modification, Extension and Spreader Agreement (Acquisition Loan Mortgage) between Borrower and Administrative Agent, dated the date hereof, encumbering the Premises as a first lien, and securing repayment of the Acquisition Loan.

“Acquisition Loan Notes”: The Acquisition Loan Notes given by Borrower to the Lenders in the aggregate principal sum of the Acquisition Loan, and any future consolidations, modifications, extensions, amendments, renewals, severances or replacements thereof.

“Administrative Agent”: Valley National Bank, and its successors and assigns.

“Administrative Agent’s Counsel”: Emmet, Marvin & Martin, LLP.

“Affiliate”: As to any person or entity, any other person or entity which, directly or indirectly, is in control of, is controlled by, or is under common control with, such person or entity. For purposes of this definition, control of a person or entity shall mean the power, direct or indirect, (i) to vote 5% or more of the securities or other interests having ordinary voting power for the election of directors or other managing persons thereof or (ii) to direct or cause the direction of the management and policies of such person or entity, whether by contract or otherwise.

“Approved Accounting Method”: As defined in the Mortgages.

“Assignment and Acceptance Agreement”: An assignment and acceptance agreement substantially in the form of Exhibit A.

“Assignment Fee”: As defined in Section 9.2(b).

“Bad Acts Guaranty”: That certain Bad Acts Guaranty dated as of the date hereof, given by the Guarantor to Administrative Agent.

“Bail-In Action”: 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”: 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.

“Benefited Lender”: As defined in Section 9.4.

“Borrower”: Dean Owner LLC, a Delaware limited liability company and its successors and/or assigns.

“Budget”: The budget attached hereto as Schedule D or the last of any budgets hereafter approved in writing by Administrative Agent subject to the terms hereof.

“Building Loan”: That certain loan in the maximum amount of $62,410,562.00 made by the Lenders to Borrower to finance Building Loan Costs pursuant to the Building Loan Agreement, which Building Loan is evidenced by the Building Loan Notes and secured by, among other things, the Building Loan Mortgage.

“Building Loan Agreement”: That certain Building Loan Agreement by and among Administrative Agent, the Lenders and Borrower of even date herewith.

“Building Loan Costs”: Those costs which are items constituting cost of the Improvements as contemplated by Section 22 of the New York Lien law, as set forth on Schedule E.

“Building Loan Mortgage”: That certain Building Loan Mortgage and Security Agreement from Borrower to Administrative Agent in the amount of the Building Loan, dated as of the date hereof, encumbering the Premises, as a second lien (subject only to the Acquisition Loan Mortgage), and securing repayment of the Building Loan.

“Building Loan Notes”: The Building Loan Notes given by Borrower to the Lenders in the aggregate principal sum of the Building Loan.

“Business Day”: As defined in the Notes.

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

“Closing”: The date of this Agreement.

“Code”: The Internal Revenue Code of 1986, as the same may be amended from time to time, or any successor thereto, and the rules and regulations issued thereunder, as from time to time in effect.

“Commitment”: With respect to each Lender, the obligation of such Lender to make Loans subject to the terms of this Agreement in an amount equal to its Committed Amount.

“Commitment Percentage”: With respect to each Lender, the percentage that such Lender’s Committed Amount is of the Total Committed Amount.

“Committed Amount”: With respect to each Lender, the amount set forth on Schedule B with respect to such Lender under the heading “Committed Amount.”

“Debt Service”: With respect to any particular period of time, scheduled payment of interest on the Loans and principal amortization, if any, due under the Notes.

“Debt Service Coverage Ratio”: For the applicable period of calculation, a ratio, as calculated by the Administrative Agent in which:

(a) the numerator is the Net Operating Income for such period as calculated by the Administrative Agent using the financial statements delivered to the Administrative Agent pursuant to the terms of the Loan Documents; and

(b) the denominator is the greater of (i) debt service that would be payable on the Loans during the same period assuming interest at 5.50% and a thirty (30) year amortization schedule, or (ii) debt service that would be payable on the Loans during the same period assuming interest at the then prevailing 10 year Treasury Rate plus 2.00% and a thirty (30) year amortization schedule.

“Defaulting Lender”: As defined in Section 4.5 hereof.

“EEA Financial Institution”: (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”: Any of the member states of the European Union, Iceland, Liechtenstein, and Norway.

“EEA Resolution Authority”: 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.

“Effective Date”: The date of this Agreement.

“Eligible Assignee”: Any of (a) a bank, insurance company pension fund, mutual fund or other financial institution organized under the laws of the United States, or any state thereof or the District of Columbia, and having total assets under ownership and/or under management in excess of $2,500,000,000 and either: (i) a net worth of not less than $200,000,000 or (ii) a senior unsecured debt rating of AA- or better by Standard & Poor’s Financial Services LLC (“S&P”) or a local Israel equivalent rating given by a ratings agency that is an affiliate of S&P, Moody’s or Fitch, or (b) a bank, insurance company pension fund, mutual fund or other financial institution organized under the laws of any other country, or a political subdivision of any such country and having total assets under ownership and/or under management in excess of $2,500,000,000 and either: (i) a net worth of not less than $200,000,000 or (ii) a senior unsecured debt rating of AA- or better by S&P or a local Israel equivalent rating given by a ratings agency that is an affiliate of S&P, Moody’s or Fitch, provided that such bank, insurance company pension fund, mutual fund or other financial institution is either (x) organized under the laws of a country or political subdivision of such country which is a member of OECD or (y) acting through a branch or agency located in a country which is a member of the OECD; or (c) the central bank of any country which is a member of the OECD, provided that in each case of (a), (b) and (c) above, such entity has experience and expertise as a lender in construction loans for projects located in the United States and has experience and expertise in real estate projects located in the United States.

“Emergency”: Any situation which requires the expenditure of funds in order to (i) avoid imminent material damage to the Premises or any material portion of the Premises, or (ii) protect the safety of any person on the Premises from imminent harm, or (iii) avoid the imminent suspension of any necessary material service  on or to the Premises, the failure  of which service would be reasonably likely to have a Material Adverse Effect on the Premises or any material portion thereof, or (v) maintain insurance coverage on the Premises or pay delinquent real estate taxes or other assessments on the Premises.

“Environmental Indemnification Agreement”: That certain Environmental Indemnification Agreement dated as of the date hereof, given by Borrower and Guarantor to Administrative Agent.

“EU Bail-In Legislation Schedule”: 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”: As defined in Section 6.1 hereof.

“Federal Funds Rate”: For any day, a rate per annum (expressed as a decimal, rounded upwards, if necessary, to the next higher 1/100 of 1%), equal to the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day, provided that (i) if the day for which such rate is to be determined is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (ii) if such rate is not so published for any day, the Federal Funds Rate for such day shall be the average of the quotations for such day on such transactions received by the Administrative Agent as reasonably determined by the Administrative Agent.

“Fee Letter”: That certain Fee Letter dated as of the date hereof between Borrower and Administrative Agent.

“GAAP”: Generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and in the statements and pronouncements of the Financial Accounting Standards Board or in such other statement by such other entity as may be approved by a significant segment of the accounting profession, which are applicable to the circumstances as of the date of determination, consistently applied.

“Governmental Authority”: The United States, the State in which the Premises are located and any political subdivision thereof, and any agency, department, commission, board, bureau or instrumentality of any of them.

“Gross Income from Operations”: For any period, all income, computed in accordance with the Approved Accounting Method, derived from the ownership and operation of the Premises from whatever source during such period including, but not limited to, Rents (as defined in the Mortgages), utility charges, escalations, forfeited security deposits, interest on credit accounts, service fees or charges, license fees, net parking income, rent concessions or credits, and other pass-through or reimbursements paid by tenants under the Leases (as defined in the Mortgages) of any nature but excluding non-cash items, Rents from month-to-month retail tenants or tenants that are subject to any bankruptcy, insolvency or similar proceeding, lease termination payments, or Rents collected more than thirty (30) days in advance until they are earned, sales, use and occupancy or other taxes on receipts required to be accounted for by the Borrower to any Governmental Authority, security deposits, utility and other similar deposits, refunds and uncollectible accounts, proceeds from the sale of furniture, fixtures and equipment, insurance proceeds (other than business interruption or other loss of income insurance) and condemnation proceeds, and any disbursements to the Borrower from the Interest and Tax Reserve Collateral Account (as defined in the Interest and Tax Reserve Pledge Agreement).

“Guaranties and Indemnification Agreements”: Collectively, the Guaranty of Payment, Guaranty of Completion, Guaranty of Interest and Expenses, Bad Acts Guaranty, and the Environmental Indemnification Agreement.

“Guarantor”: Clipper Realty Inc., a Maryland corporation.

“Guaranty of Completion”: That certain Guaranty of Completion dated as of the date hereof, given by the Guarantor to Administrative Agent.

“Guaranty of Interest and Expenses”: That certain Guaranty of Interest and Expenses dated as of the date hereof, given by the Guarantor to Administrative Agent.

“Guaranty of Payment”: That certain Guaranty of Payment, dated as of the date hereof, given by the Guarantor to Administrative Agent.

“HVCRE”: High Volatility Commercial Real Estate pursuant to the Basel III regulations.

“HVCRE Threshold”: With respect to the amount of cash equity which the Borrower is required to contribute to the Premises in accordance with the provisions of Section 2.8, that amount equal to the greater of (a) an amount equal to fifteen percent (15%) of the “Prospective Value at Completion”, as determined by the Appraisal obtained by Administrative Agent in connection with the closing of the Loans and (b) that amount required to be contributed by Borrower as cash equity to prevent the Premises and/or the Loans to be classified as HVCRE.

“Improvements”: Site improvements on the Land, including, but not limited to, the construction of a 246,768 gross square foot mixed-use building comprised of 240 residential apartments, 9,319 square feet of commercial space, and 84 parking spaces together with such facilities, amenities and other items as are set forth in the Plans or that may be required by Administrative Agent, any Local Authority or other Governmental Authority or local law, all of which must be constructed in accordance with the Plans (as that term is defined in the Building Loan Agreement).

“Intercreditor Agreement”: That certain Intercreditor Agreement dated on or about the date hereof between Administrative Agent and Mezzanine Lender.

“Interest and Tax Reserve Pledge Agreement”: That certain Interest and Tax Reserve Pledge Agreement, dated the date hereof, made by and between the Borrower and the Administrative agent, and any future amendments, modifications or supplements thereto.

“Land”: That certain parcel of land located at 953 Dean Street, Brooklyn, New York, designated as Block 1134, Lot 96 f/k/a old lots 2, 11, 12, 96 and 97 on the Tax Map of the City of New York, Kings County, and more particularly described in Schedule A.

“Loans”: Collectively, the Acquisition Loan, the Building Loan and the Project Loan, to be made by the Lenders in the aggregate principal sum of up to $115,000,000.00.

“Loan Documents”: This Agreement, the Fee Letter, the Building Loan Agreement, the Project Loan Agreement, the Notes, the Mortgages, the Guaranty of Completion, the Guaranty of Payment, the Guaranty of Interest and Expenses, the Bad Acts Guaranty, the Environmental Indemnification Agreement, and any other documents now, previously or hereafter executed or delivered in connection with the Loans and or defined as “Loan Documents” under the Building Loan Agreement, the Project Loan Agreement, or any of the Mortgages.

“Loan Participant”: Either individually or collectively, Bank Leumi Le-Israel BM and Mizrahi-Tefahot Bank.

“Local Authority”: Any Governmental Authority which exercises jurisdiction over the Premises or construction thereon.

“Manager”: means David Bistricer, a natural person.

“Material Adverse Effect”: As defined in the Mortgages.

“Member”: means Dean Member LLC, a Delaware limited liability company, the sole member of Mortgagor.

“Mezzanine Lender”: BADF 953 Dean Street Lender LLC.

“Mezzanine Loan”: That certain loan in the principal sum of up to $8,000,000.00 given by Mezzanine Lender to Member.

“Mortgages”: Collectively, the Acquisition Loan Mortgage, the Building Loan Mortgage and the Project Loan Mortgage.

“Net Operating Income”: For any period, the amount obtained by subtracting Operating Expenses for such period from Gross Income from Operations for such period, as such amount may be adjusted by the Administrative Agent in its sole but reasonable discretion.

“Note”: An Acquisition Loan Note, Building Loan Note or Project Loan Note given by Borrower to a Lender, and “Notes” shall mean all Notes collectively.

“Operating Agreement”: The Amended and Restated Limited Liability Company Agreement of Borrower dated as of August 10, 2023.

“Operating Expenses”: For any period, the total of all expenditures, computed in accordance with the Approved Accounting Method, of whatever kind relating to the operation, maintenance and management of the Premises, which expenditures are incurred on a regular monthly or other periodic basis, including without limitation, utilities, ordinary repairs and maintenance, insurance, license fees, real estate taxes, water and sewer rents and similar charges, management fees under any property management agreement, advertising expenses, payroll and employer and employment related taxes, computer processing charges, operational equipment or other lease payments as approved by the Administrative Agent, and other similar costs, but excluding: (i) depreciation, (ii) amortization (iii) Debt Service, (iv) Capital Expenditures, (v) amounts deposited into reserves required by the Loan Documents, and (vi) any non-recurring expenses.

“Permitted Lease”: (a) A commercial lease which is at a rent not less than the market rent, as reasonably determined by Borrower (and confirmed by Administrative Agent), and which, with respect to any commercial space which is subject to the Fresh Program, complies with the requirements of the Fresh Program, (b) a residential lease of an apartment at the Premises (i) which is on Borrower’s standard form of market-rate rent-stabilized apartment lease or affordable-housing apartment lease (which standard forms of market-rate rent-stabilized apartment lease and affordable-housing apartment lease shall be reasonably acceptable to and reasonably approved by the Administrative Agent and shall contain such riders in such form as shall be required under the Affordable New York Statute, the Affordable New York Rules and/or any other applicable legal requirements) without material modification, (ii) to an individual or individuals which intends to occupy the apartment in question and which is not affiliated with or related to Borrower or any Guarantor, (iii) which shall be at a rent not less than (x) in the case of market-rate leases, the market rent (or such lesser amount as shall be permitted under the Affordable New York Statute, the Affordable New York Rules and/or any other applicable legal requirements, as reasonably determined by Borrower (and confirmed by Administrative Agent), or (y) in the case of affordable-housing leases, the lesser of the market rent and the maximum regulated rent allowed by applicable law, as reasonably determined by Borrower (and confirmed by Administrative Agent), (iv) which shall provide for a term of not less than six (6) months and not more than two (2) years (but subject to legal renewals), and (v) which shall be subordinate by its terms to the Mortgages and all existing and future advances hereunder and thereunder, and to any renewal, modification, extension or increase to any of the foregoing, or (c) any other lease which is otherwise approved in writing by Administrative Agent, such approval not be unreasonably withheld, conditioned or delayed.

“Permitted Mezzanine Transfer”: A transfer of membership interests in the Borrower to the Mezzanine Lender (or its nominee) in connection with an enforcement of the remedies under the Mezzanine Loan or by deed or assignment in lieu of such foreclosure or enforcement, in each case to the extent permitted under the Intercreditor Agreement.

“Permitted Transfer” means (a) the transfer of a direct or indirect ownership interest in Borrower (i) by any of the direct or indirect owners of the Borrower to Affiliates, family members, trusts established for the benefit of such family members, or entities owned and controlled by any of the foregoing, or (ii) any other transfer of a direct or indirect ownership interest in Borrower made with the prior written consent of Administrative Agent (which may be given or denied in its sole discretion), provided that in all cases: (w) the transfer shall be limited to a 25% interest in the Borrower, (x) the Guarantor (or family members of the principals of Guarantor or trusts for the benefit thereof) shall continue to maintain their direct or indirect ownership interest in the Borrower, and (y) the Guarantor shall continue directly or indirectly to manage and control the Borrower, and (z) no transferee is a Prohibited Person or (b) a Permitted Mezzanine Transfer. Borrower shall provide Administrative Agent with prior written notice of a proposed Permitted Transfer together with copies of documentation evidencing same, and no such Permitted Transfer that does not otherwise need Administrative Agent’s consent shall be deemed effective until Administrative Agent shall have been given such written notice and shall have confirmed that the proposed transferee is not a Prohibited Person, and no such Permitted Transfer that needs Administrative Agent’s consent shall be deemed effective until Administrative Agent shall have been given such written consent and shall have confirmed that the proposed transferee is not a Prohibited Person.

“Person”: An individual, a partnership, a corporation, a limited liability company, a business trust, a joint stock company, a trust, an unincorporated association, a joint venture, a Governmental Authority or any other entity of whatever nature.

“Premises”: The Land and the Improvements existing or to be constructed on the Land, and the building materials, personal property, fixtures, furniture, equipment and other items described in the granting clause of the Mortgages and/or owned or to be owned and/or leased by Borrower and used in the construction or operation of the Improvements or any improvements situated or constructed on the Land.

“Prohibited Person” means any Person who (i) is on any U.S. Office of Foreign Asset Control or similar list, (ii) would, after giving effect to any transfer, cause Administrative Agent, any Lender, Borrower, any Guarantor or the Loan to be in violation of the USA Patriot Act of 2001, 31 U.S.C. Section 5318, or any similar law, rule or regulation imposed by any Governmental Authority, (iii) does not satisfy Administrative Agent’s or a Lender’s then standard “know your customer” requirements, or (iv) has provided insufficient information to Administrative Agent as to satisfy the Administrative Agent’s or a Lender’s then standard “know your customer” requirements.

“Project Loan”: That certain loan in the maximum amount of $15,604,438.00 made by the Lenders to Borrower to finance Project Loan Costs pursuant to the Project Loan Agreement, which Project Loan is evidenced by the Project Loan Notes and secured by, among other things, the Project Loan Mortgage.

“Project Loan Agreement”: That certain Project Loan Agreement by and among Administrative Agent, the Lenders and Borrower of even date herewith.

“Project Loan Costs”: Those costs which are not items constituting costs of the Improvements as contemplated by Section 22 of the New York Lien Law, as set forth on Schedule F.

“Project Loan Mortgage”: That certain Project Loan Mortgage and Security Agreement from Borrower to Administrative Agent in the amount of the Project Loan, dated as of the date hereof, encumbering the Premises as a third lien (subject only to the Acquisition Loan Mortgage and the Building Loan Mortgage) and securing repayment of the Project Loan.

“Project Loan Notes”: The Project Loan Notes given by Borrower to the Lenders in the aggregate principal sum of the Project Loan.

“Property”: All types of real, personal, tangible, intangible or mixed property.

“Required Lenders”: As of any date, (i) all Lenders if there are less than three (3) Lenders (which shall include the Lender then acting as Administrative Agent) or (ii) if there are three (3) or more Lenders (which shall include the Lender then acting as Administrative Agent), then Lenders whose Committed Amounts are 66 2/3% of the Total Committed Amount; provided that in determining such percentage at any given time, all then existing Defaulting Lenders will be disregarded and excluded, and the Committed Amounts shall be redetermined, for voting purposes only, to exclude the Committed Amounts of such Defaulting Lenders.

“Requirement” or “Local Requirement”: Any law, ordinance, order, rule or regulation of a Governmental Authority or a Local Authority, respectively, including, but not limited to, laws, ordinances, orders, rules or regulations with regard to zoning, building or environmental matters.

“Tax”: Any present or future tax, levy, impost, duty, charge, fee, deduction or withholding of any nature and whatever called, by a Governmental Authority, on whomsoever and wherever imposed, levied, collected, withheld or assessed.

“Tax on the Overall Net Income”: As to any Person, a Tax imposed by the country in which that Person’s principal office (and/or, in the case of the any of the Lenders, its domestic lending office) is located or by any political subdivision or taxing authority thereof or in which that Person is deemed to be doing business on all or part of the net income, profits or gains of that Person (whether worldwide, or only insofar as such income, profits or gains are considered to arise in or to relate to a particular jurisdiction, or otherwise).

“Total Committed Amount”: The sum of the Committed Amounts of all Lenders.

“United States”: The United States of America (including the States thereof and the District of Columbia).

“Write-Down and Conversion Powers”: 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)    Other Loan Documents. All terms defined in a Loan Document shall have the meanings given such terms therein when used in the other Loan Documents or any certificate, opinion or other document made or delivered pursuant thereto, unless otherwise defined therein. In the event of any conflict between a defined term in this Agreement and a defined term in any other Loan Document, the defined term in this Agreement shall prevail.

(b)    Accounting Terms. As used in the Loan Documents and in any certificate, opinion or other document made or delivered pursuant thereto, accounting terms not defined in Section 1.1, and accounting terms partly defined in Section 1.1, to the extent not defined, shall have the respective meanings given to them under the Approved Accounting Method.

(c)    Usage of Certain Other Words. The words “hereof”, “herein”, “hereto” and “hereunder” and similar words when used in a Loan Document shall refer to such Loan Document as a whole and not to any particular provision thereof, and Section, schedule and exhibit references contained therein shall refer to Sections thereof or schedules or exhibits thereto unless otherwise expressly provided therein. The phrase “may not” is prohibitive and not permissive.

(d)    Plurals. Unless the context otherwise requires, words in the singular number include the plural, and words in the plural include the singular.

(e)    Computation of Periods. Unless specifically provided in a Loan Document to the contrary, in the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including” and the words “to” and “until” each means “to but excluding”.

(f)    Fiscal Period. References in any Loan Document to a fiscal period shall refer to that fiscal period of Borrower.

(g)    Time. All references to time of day shall mean the then applicable time in New York, New York unless expressly provided to the contrary.

ARTICLE II
AMOUNT AND TERMS OF THE LOANS

Section 2.1    Advances of the Loans

Subject to the terms and conditions hereof, on the date hereof each Lender severally agrees to advance the Acquisition Loan to or on behalf of Borrower, and from and after the date hereof each Lender severally agrees to make advances of the Building Loan and the Project Loan to Borrower for amounts set forth in the Budget, provided that (i) each advance by a Lender shall not exceed such Lender’s Commitment Percentage of the Acquisition Loan, the Building Loan or the Project Loan, as applicable, (ii) the total of all advances of the Loans by a Lender shall not exceed such Lender’s Committed Amount of the Loans, and (iii) the Total Committed Amount of the Loans shall never exceed $115,000,000.00. All advances of the Building Loan shall be made pursuant to the terms of the Building Loan Agreement and hereof. All advances of the Project Loan shall be made pursuant to the terms of the Project Loan Agreement and hereof.

Section 2.2    Notes; Obligations for Principal and Interest

(a)    Notes. The advances of the Loans made by each Lender shall be evidenced by Notes of Borrower, with appropriate insertions therein as to date and principal amount and whether they are an Acquisition Loan Note, Building Loan Note or Project Loan Note, payable to the order of such Lender and representing the obligation of Borrower to pay the unpaid principal balance of the advances of the Acquisition Loan, the Building Loan and the Project Loan, as the case may be, made by such Lender, with interest thereon as prescribed therein. Each Note of each Lender shall be in an amount equal to such Lender’s Commitment Percentage of the Acquisition Loan, the Building Loan or the Project Loan, as the case may be. Each Note shall be dated the date of execution thereof and shall be substantially in the form of Exhibit B.

(b)    Interest and Payments. The Loans shall bear interest and shall be payable in the manner set forth in the Notes.

Section 2.3    Taxes

(a)    Payments to Be Free and Clear. Provided that all documentation, if any, then required to be delivered by any Lender or the Administrative Agent pursuant to subsection (b) has been delivered, all sums payable by Borrower under the Loan Documents shall be paid free and clear of and without any deduction or withholding on account of any Tax (other than a Tax on the Overall Net Income of any Lender (for which payment need not be free and clear but no deduction or withholding shall be made unless then required by applicable law)) imposed, levied, collected, withheld or assessed by or within the United States or any political subdivision in or of the United States or any other jurisdiction from or to which a payment is made by or on behalf of Borrower or by any federation or organization of which the United States or any such jurisdiction is a member at the time of payment.

(b)    U.S. Tax Certificates. Each Lender that is organized under the laws of any jurisdiction other than the United States shall deliver to the Administrative Agent for transmission to Borrower, on or prior to the Effective Date (in the case of each Lender listed on the signature pages hereof) or on the effective date of the Assignment and Acceptance Agreement pursuant to which it becomes a Lender (in the case of each other Lender), and at such other times as may be necessary in the determination of Borrower or the Administrative Agent (each in the reasonable exercise of its discretion), such certificates, documents or other evidence, properly completed and duly executed by such Lender (including in the case of a foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed copies of IRS Form W-8BEN-E and/or, as applicable, IRS Form W-8IMY establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN-E and/or, as applicable, IRS Form W-8IMY establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty, and/or, as applicable IRS Form W-8ECI) to establish that such Lender is not subject to deduction or withholding of United States federal income tax under the Code or otherwise (or under any comparable provisions of any successor statute) with respect to any payments to such Lender of principal, interest, fees or other amounts payable under any of the Loan Documents. Borrower shall not be required to pay any additional amount to any such Lender if such Lender shall have failed to satisfy the requirements of the immediately preceding sentence; provided that if such Lender shall have satisfied such requirements on the Effective Date (in the case of each Lender listed on the signature pages hereof) or on the effective date of the Assignment and Acceptance Agreement pursuant to which it became a Lender (in the case of each other Lender), nothing in this subsection shall relieve Borrower of its obligation to pay any additional amounts in the event that, as a result of any change in applicable law, such Lender is no longer properly entitled to deliver certificates, documents or other evidence at a subsequent date establishing the fact that such Lender is not subject to withholding as described in the immediately preceding sentence.

Borrower hereby acknowledges that Lender will be eligible for the benefits of the exemption for portfolio interest under Section 881(c) of the Code, upon delivering to the Borrower on or prior to the Effective Date (and from time to time thereafter upon the reasonable request of the Borrower or as required by applicable law) (x) a properly completed and executed appropriate IRS Form W-8BEN-E and/or, as applicable, IRS Form W-8IMY and (y) a U.S. tax compliance certificate substantially in the form of Schedule C to the effect that such Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “ten percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” related to the Borrower as described in Section 881(c)(3)(C) of the Code.

Section 2.4    Use of Proceeds

The proceeds of the Acquisition Loan advanced by the Lenders shall be used solely to refinance the existing mortgages on the Premises. The proceeds of the Building Loan and Project Loan shall be used to complete the Improvements in accordance with the terms respectively of the Building Loan Agreement and the Project Loan Agreement.

Section 2.5    Administrative Agent’s Records

The Administrative Agent’s records regarding the amount of the Loans, each payment by Borrower of principal and interest on the Loans and other information relating to the Loans shall be presumptively correct absent manifest error.

Section 2.6    Extension of the Maturity Date

Borrower shall have the option to extend the term of the Loans beyond the initial Maturity Date of February 10, 2026 for one (1) term (the “First Extension Option”) of six (6) months (the “First Extension Period”) to August 10, 2026 (the “First Extended Maturity Date”), upon satisfaction of the following terms and conditions (the “First Extension Conditions”):

(1)    No Event of Default shall have occurred and be continuing at the time the First Extension Option is exercised and on the date that the First Extension Period is to commence;

(2)    Borrower shall notify Administrative Agent of its election to extend the Maturity Date as aforesaid at least twenty (20) days but not more than one hundred twenty (120) days prior to the initial Maturity Date;

(3)    Borrower shall have substantially completed the Improvements in accordance with the requirements of the Building Loan Agreement (including the issuance of a temporary or permanent certificate of occupancy for all of the residential apartments at the Improvements);

(4)    Borrower shall have complied with all of the conditions in the Building Loan Agreement governing the making of the last advance of the proceeds of the Loans;

(5)    Borrower shall have received final releases of lien from the General Contractor and all Subcontractors with respect of work, labor or materials supplied in connection with the construction of the Improvements to date;

(6)    Permitted Leases are in place for at least 25% (60 units) of the residential apartment units at the Improvements;

(7)    In connection with the exercise of the First Extension Option, Borrower shall have paid to Administrative Agent, for the ratable benefit of the Lenders, an extension fee equal to one quarter of one percent (0.25%) of the aggregate original Committed Amount of the Loans;

(8)    Borrower shall have deposited into the Interest and Tax Reserve Collateral Account an amount sufficient in the Administrative Agent’s reasonable discretion (taking into account any amount of the Loans remaining to be advanced for same) to pay interest on the Loans and carrying costs on the Premises (including taxes, insurance and any maintenance and operating expenses) through the First Extended Maturity Date, less the projected Gross Income from Operations with respect to the Premises available to be applied to such amounts; and

(9)    Borrower shall have timely paid all other reasonable out-of-pocket fees and expenses incurred by the Administrative Agent in connection with the extension of the Loans.

All references in this Agreement and in the other Loan Documents to the Maturity Date shall mean the First Extended Maturity Date in the event the First Extension Option is exercised and the First Extension Conditions have been timely satisfied.

Borrower shall have the option to extend the term of the Loans beyond the First Extended Maturity Date of August 10, 2026 for one (1) term (the “Second Extension Option”) of six (6) months (the “Second Extension Period”) to February 10, 2027 (the “Second Extended Maturity Date”), upon satisfaction of the following terms and conditions (the “Second Extension Conditions”):

(1)    No Event of Default shall have occurred and be continuing at the time the Second Extension Option is exercised and on the date that the Second Extension Period is to commence;

(2)    Borrower shall notify Administrative Agent of its election to extend the Maturity Date as aforesaid at least twenty (20) days but not more than one hundred twenty (120) days prior to the First Extended Maturity Date;

(3)    The Premises has in place Permitted Leases generating sufficient cash flow to yield a minimum Debt Service Coverage Ratio of 1.10 to 1.00 as determined by Administrative Agent;

(4)    In connection with the exercise of the Second Extension Option, Borrower shall have paid to Administrative Agent, for the ratable benefit of the Lenders, an extension fee equal to one quarter of one percent (0.25%) of the aggregate original Committed Amount of the Loans;

(5)    Borrower shall have deposited into the Interest and Tax Reserve Collateral Account an amount sufficient in the Administrative Agent’s reasonable discretion (taking into account any amount of the Loans remaining to be advanced for same) to pay interest on the Loans and carrying costs on the Premises (including taxes, insurance and any maintenance and operating expenses) through the Second Extended Maturity Date, less the projected Gross Income from Operations with respect to the Premises available to be applied to such amounts; and

(6)    Borrower shall have timely paid all other reasonable out-of-pocket fees and expenses incurred by the Administrative Agent in connection with the extension of the Loans.

All references in this Agreement and in the other Loan Documents to the Maturity Date shall mean the Second Extended Maturity Date in the event the Second Extension Option is exercised and the Second Extension Conditions have been timely satisfied.

Section 2.7    Acknowledgement and Consent to Bail-In of EEA Financial Institutions.

Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any EEA Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:

(a)    the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an EEA Financial Institution; and

(b)    the effects of any Bail-in Action on any such liability, including, if applicable:

(i)    a reduction in full or in part or cancellation of any such liability;

(ii)    a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or

(iii)    the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of any EEA Resolution Authority.

Section 2.8    HVCRE Representation and Covenant.

Borrower has contributed and shall contribute (or cause to be contributed) cash equity in an amount sufficient to satisfy the HVCRE Threshold. A certificate of Administrative Agent setting forth the amount of cash equity necessary to satisfy the HVCRE Threshold as provided in this Section shall be conclusive absent manifest error. Borrower shall contribute (or cause to be contributed) such cash equity prior to or simultaneously with the closing of the Loans or, if such shortfall is determined thereafter, within ten (10) days after such determination by the Administrative Agent. In addition, if it is determined that the HVCRE Threshold is not being maintained, and such failure directly affects the amount of capital required to be maintained by a Lender (or any lending office of a Lender) or any corporation directly or indirectly owning or controlling a Lender, and the Lender shall have determined that such enactment, promulgation, change or compliance has the direct effect of reducing the rate of return on Lender’s (or such lending office’s or controlling corporation’s) capital or the asset value to the Lender (or such lending office or controlling corporation) of its portion of the Loans as a consequence, directly or indirectly, then, upon demand by the Administrative Agent or a Lender, the Borrower shall promptly pay to such Lender such additional amount or amounts as shall be sufficient to compensate the Lender (or such lending office or controlling corporation) for such reduction on the rate of return or asset value. The Administrative Agent’s or the Lender’s determination of such amount or amounts that will compensate the Lender (or such lending office or controlling corporation) for such reductions shall be made in good faith and presumed correct absent manifest error and shall be evidenced by a certification of such amount or amounts by the Administrative Agent or the Lender to the Borrower.

ARTICLE III
PAYMENTS

Section 3.1    Payments.

(a)    Each payment, including each prepayment, of principal and/or interest on the Loans shall be made by Borrower to the Administrative Agent at its office in funds immediately available to the Administrative Agent at such office by 2:00 p.m. on the due date for such payment, without deduction, set‑off or counterclaim, and, promptly upon receipt thereof by the Administrative Agent, shall be remitted by the Administrative Agent, in like funds as received, to the Lenders, at each Lender’s office, pro rata according to the aggregate outstanding principal balance of the Loans. With respect to any payment or prepayment of principal or interest on the Loans received by the Administrative Agent on a Business Day in immediately available funds and which is required to be distributed pursuant to this Agreement to the Lenders on a pro-rata basis as aforesaid, if such share thereof is not distributed to any Lender on such day, then the Administrative Agent shall pay interest on such amount received but not paid to such Lender for each day from the date such amount is so paid by Borrower to the Administrative Agent to, but excluding the date of payment to, such Lender at a rate per annum equal to the Federal Funds Rate.

(b)    If the Administrative Agent shall distribute to the Lenders any amount which, based on a notice to the Administrative Agent from Borrower was to be paid by Borrower, but which in fact was not paid, the Lenders severally agree to repay to the Administrative Agent forthwith on demand the amount so distributed to each Lender with interest thereon, for each day from and including the date such amount is distributed to it to, but excluding the date of payment to, the Administrative Agent at a rate per annum equal to the Federal Funds Rate.

(c)    If any Lender shall fail to make any payment required to be made by it pursuant to this Agreement, then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under this Agreement until all such unsatisfied obligations are fully paid.

ARTICLE IV
LOANS; ADVANCES

Section 4.1    Advance of the Acquisition Loan

On the date hereof, the Lenders have advanced the Acquisition Loan in full to or for the benefit of Borrower in order to refinance the existing mortgage loan on the Premises.

Section 4.2    Advances of the Building Loan

Upon Borrower’s fulfillment of the conditions for an advance of the Building Loan under the Building Loan Agreement and hereunder, the Lenders shall, subject to the provisions of this Agreement and the Building Loan Agreement, make an advance of the Building Loan to or for the benefit of Borrower as set forth in the Building Loan Agreement and herein.

Section 4.3    Advances of the Project Loan

Upon Borrower’s fulfillment of the conditions for an advance of the Project Loan under the Project Loan Agreement and hereunder, the Lenders shall, subject to the provisions of this Agreement and the Project Loan Agreement, make an advance Project Loan to or for the benefit of Borrower as set forth in the Project Loan Agreement and herein.

Section 4.4    Advances to the Administrative Agent by Each Lender

(a)    Prior to 2:00 P.M. three (3) Business Days before the date on which the requested advance is to be made, the Administrative Agent shall advise the Lenders thereof by facsimile or e-mail of the requested advance. Each applicable Lender shall fund its Commitment Percentage of each such requested advance no later than 1:00 P.M. on the date the requested advance is to be made.

(b)    Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any requested advance that such Lender will not make available to the Administrative Agent such Lender’s Commitment Percentage thereof, the Administrative Agent may assume that such Lender has made such amount available on such date in accordance with this Article IV and may, in reliance upon such assumption, make available to Borrower a corresponding amount. In such event, if a Lender has not in fact made its Commitment Percentage of the applicable advance of the Loans available to the Administrative Agent, then such Lender agrees to pay to the Administrative Agent forthwith on demand such corresponding amount with interest thereon, for each day from and including the date such amount is in fact made available to Borrower to but excluding the date of payment to the Administrative Agent, at the Federal Funds Rate. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s share of such advance. During any such time as such Lender fails to pay such amount to the Administrative Agent, Administrative Agent may elect to be deemed a Special Advance Lender in respect of such unpaid amount in accordance with Section 4.5.

(c)    If a Lender is an Israeli lender and is unable to effectuate a funding within such three (3) Business Days, such Lender shall not be deemed a Defaulting Lender provided such Lender (x) endeavors to notify Administrative Agent of its inability to so timely fund (but the failure to so notify shall not cause such Lender to be a Defaulting Lender), and (y) within three (3) Business Days after the original date specified for funding (i.e. six (6) Business Days in all after Administrative Agent’s original notice to the Lenders) such Lender shall fund such advance (it being understood that such Lender shall only be entitled to interest on an advance from and after the date such Lender advances same), and if Administrative Agent advances such Lender’s portion of an advance prior to such Lender’s advance thereof, Administrative Agent shall be entitled to interest thereon at the rate payable by Borrower until the date such Lender has advanced same. Notwithstanding the foregoing, a Lender’s time to fund shall be further extended for Israeli Lenders day for day for any days which constitute a Business Day but do not constitute a business day in Israel.

Section 4.5    Defaulting Lenders

(a)    If any Lender (a “Defaulting Lender”) shall for any reason fail to (i) make any respective advance of any of the Loans required pursuant to the terms of this Agreement, or (ii) pay its pro rata share of an advance or disbursement to protect the Premises or the lien of any of the Loan Documents therein, any of the other Lenders may, but shall not be obligated to, make all or a portion of the Defaulting Lender’s Loan or pro rata share of such advance; provided that such Lender gives the Defaulting Lender and the Administrative Agent two (2) Business Days prior notice of its intention to do so (it being agreed however that no prior notice need be given by Administrative Agent to make an election under Section 4.4 to be deemed a Special Advance Lender). The right to make such advances in respect of the Defaulting Lender shall be exercisable first by the Administrative Agent, then the Lender holding the greatest pro rata share and thereafter to each of the Lenders in descending order of their respective pro rata share or in such other manner as the Required Lenders (excluding the Defaulting Lender) may agree on. Any Lender making all or any portion of a Defaulting Lender’s pro rata share of the applicable Loan or advance in accordance with the foregoing terms and conditions shall be referred to as a “Special Advance Lender”. Subject to a Defaulting Lender’s right to cure as provided in subsection (f), but notwithstanding anything else to the contrary contained in this Agreement, the Defaulting Lender’s interest in, and any amounts due to a Defaulting Lender under, the Loan Documents (including, without limitation, all principal, interest, fees and expenses) shall be subordinate in lien priority and to the repayment of all amounts (including, without limitation, interest) then or thereafter due or to become due to the other Lenders under the Loan Documents, and the Defaulting Lender thereafter shall have no right to participate in any discussions among and/or decisions by the Lenders hereunder and/or under the other Loan Documents. Further, subject to subsection (f) below, any Defaulting Lender shall be bound by any amendment to, or waiver or, any provision of, or any action taken or omitted to be taken by the Administrative Agent and/or the other Lenders under, any Loan Document which is made subsequent to the Defaulting Lender becoming a Defaulting Lender and, during such period, the Commitments of and outstanding principal amount held by such Defaulting Lender shall be disregarded in any determination requiring the approval of the Lenders or the Required Lenders hereunder.

(b)    In any case where a Lender becomes a Special Advance Lender (i) the Special Advance Lender shall be deemed to have purchased, and the Defaulting Lender shall be deemed to have sold, a senior participation in the Defaulting Lender’s respective interest in the Loans to the extent of the amount so advanced or disbursed (the “Advanced Amount”) bearing interest (including interest at the Default Rate, if applicable) and (ii) the Defaulting Lender shall have no voting rights under this Agreement or any other Loan Documents (and its pro rata share shall be disregarded in determining whether any act or decision requiring the approval of the Required Lenders shall have been approved) so long as it is a Defaulting Lender. It is expressly understood and agreed that each of the respective obligations of the Lenders under this Agreement and the other Loan Documents, including to make advances of the Loans, to share losses incurred in connection with the Loans, including costs and expenses of enforcement of the Loans, to make advances to preserve the lien of the Loan Documents or to preserve and protect the Premises or to effect completion of the Improvements to be constructed pursuant to the Loan Documents, shall be without regard to any adjustment in the pro rata share occasioned by the acts of a Defaulting Lender. The Special Advance Lender shall be entitled to an amount (the “Unpaid Amount”) equal to the applicable Advanced Amount, plus any unpaid interest due and owing with respect thereto, less any repayments thereof made by the Defaulting Lender immediately upon demand. The Defaulting Lender shall have the right to repurchase the senior participation in its interest in the Loans from the Special Advance Lender pursuant to subsection (f) below by the payment of the Unpaid Amount.

(c)    A Special Advance Lender shall (i) give notice to the Defaulting Lender, the Administrative Agent, the Borrower and each of the other Lenders (provided that failure to deliver said notice to any party other than the Defaulting Lender shall not constitute a default under this Agreement) of the Advanced Amount and the percentage of the Special Advance Lender’s senior participation in the Defaulting Lender’s Loans and (ii) in the event of the repayment of any of the Unpaid Amount by the Defaulting Lender, give notice to the Defaulting Lender, the Administrative Agent and each of the other Lenders of the fact that the Unpaid Amount has been repaid (in whole or in part), the amount of such repayment and, if applicable, the revised percentage of the Special Advance Lender’s senior participation. Provided that the Administrative Agent has received notice of such participation, the Administrative Agent shall have the same obligations to distribute interest, principal and other sums received by the Administrative Agent with respect to a Special Advance Lender’s senior participation as the Administrative Agent has with respect to the distribution of interest, principal and other sums under this Agreement; and at the time of making any distributions to the Lenders, shall make payments to the Special Advance Lender with respect to a Special Advance Lender’s senior participation in the Defaulting Lender’s Loans out of the Defaulting Lender’s share of any such distributions.

(d)    A Defaulting Lender shall immediately pay to a Special Advance Lender all sums of any kind paid to or received by the Defaulting Lender from the Borrower, whether pursuant to the terms of this Agreement or the other Loan Documents or in connection with the realization of the security therefor until the Unpaid Amount is fully repaid. Notwithstanding the fact that the Defaulting Lender may temporarily hold such sums, the Defaulting Lender shall be deemed to hold same as a trustee for the benefit of the Special Advance Lender, it being the express intention of the Lenders that the Special Advance Lender shall have an ownership interest in such sums to the extent of the Unpaid Amount.

(e)    Nothing contained in this Section shall release or in any way limit a Defaulting Lender’s obligations as a Lender hereunder and/or under any other of the Loan Documents or impair the Borrower’s right to exercise its remedies against such Defaulting Lender which remedies shall include, without limitation, the recovery of any losses, costs and expenses incurred as a result thereof. Each Defaulting Lender shall indemnify, defend and hold the Administrative Agent and each of the other Lenders harmless from and against any and all losses, damages, liabilities or expenses (including reasonable attorneys’ fees and expenses and interest at the Default Rate) which they may sustain or incur by reason of the Defaulting Lender’s failure or refusal to abide by its obligations under this Agreement or the other Loan Documents, except to the extent a Defaulting Lender became a Defaulting Lender due to the gross negligence or willful misconduct of the Administrative Agent and/or any Lender. The Administrative Agent shall, after payment of any amounts due to any Special Advance Lender pursuant to the terms of subsection (c) above, set-off against any payments due to such Defaulting Lender for the claims of the Administrative Agent and the other Lenders pursuant to this indemnity.

(f)    A Defaulting Lender may cure a default arising out of its failure to fund its pro rata share of an advance or to make any respective payment required pursuant to this Agreement, and subject to the following, upon such cure shall no longer be deemed to be a Defaulting Lender, if, within twenty (20) days (the “Default Cure Period”) of such default, it pays the full amount of the Unpaid Amount to the Administrative Agent. If any Defaulting Lender pays the Unpaid Amount within the Default Cure Period (or thereafter with the consent of the Administrative Agent), such Defaulting Lender nonetheless shall be bound by any amendment to or waiver of any provision of, or any action taken or omitted to be taken by the Administrative Agent and/or the other Lenders under, any Loan Document which is made subsequent to the Lender’s becoming a Defaulting Lender and prior to its curing the default as provided in this subsection; provided that such amendment or waiver of action was taken in accordance with the provisions of this Agreement. A Defaulting Lender shall have absolutely no right to cure any default after the expiration of the Default Cure Period unless the Administrative Agent, in its sole discretion, elects to permit such cure.

ARTICLE V
REPRESENTATIONS, COVENANTS AND WARRANTIES

In order to induce the Administrative Agent and the Lenders to enter into this Agreement and to make the Loans, Borrower makes the following representations and warranties to the Administrative Agent and each Lender as of the date hereof.

Section 5.1    Authority

Borrower is a duly organized and validly existing limited liability company organized under the laws of the State of Delaware and authorized to do business in the State of New York. The Person executing this Agreement on behalf of the Borrower is duly authorized to execute this Agreement, and Borrower is duly authorized to enter into, execute, deliver and carry out the terms of this Agreement, to make the borrowings contemplated hereby, to execute, deliver and carry out the terms of the Notes, this Agreement, the Building Loan Agreement, the Project Loan Agreement, the Mortgages and the other Loan Documents, and to incur the obligations provided for herein and therein, all of which have been duly authorized by all proper and necessary action and are in full compliance with the Operating Agreement. The sole member of Borrower under the Operating Agreement is the Member and the manager of Borrower under the Operating Agreement is the Manager. The direct and/or indirect owners of Borrower are set forth on the organizational chart of Borrower and Member attached hereto as Exhibit C.

Member is a duly organized and validly existing limited liability company organized under the laws of the State of Delaware and authorized to do business in the State of New York. The Person executing the documents evidencing and securing the Mezzanine Loan on behalf of the Member is duly authorized to execute such documents, and the Member is duly authorized to enter into, execute, deliver and carry out the terms of the documents evidencing and securing the Mezzanine Loan, to make the borrowings contemplated thereby, to execute, deliver and carry out the terms thereof, and to incur the obligations provided for therein, all of which have been duly authorized by all proper and necessary action and are in full compliance with the operating agreement of the Member. The manager of the Member under its operating agreement is the Manager. The direct and/or indirect owners of the Member are set forth on the organizational chart of Borrower and Member attached hereto as Exhibit C.

Guarantor is a duly organized and validly existing corporation organized under the laws of the State of Maryland and authorized to do business in the State of New York. The Person executing the Guaranties and Indemnification Agreements on behalf of the Guarantor is duly authorized to execute such documents, and the Guarantor is duly authorized to enter into, execute, deliver and carry out the terms of the Guaranties and Indemnification Agreements, to make the guaranties and indemnifications contemplated thereby, to execute, deliver and carry out the terms thereof, and to incur the obligations provided for therein, all of which have been duly authorized by all proper and necessary action and are in full compliance with the resolutions, bylaws and other organizational documents of the Guarantor. The direct and/or indirect owners of the Guarantor are set forth on the organizational chart of Borrower and Member attached hereto as Exhibit C or as have been otherwise disclosed to Administrative Agent.

Section 5.2    Binding Agreement

The Loan Documents to which Borrower is a party constitute the valid and legally binding obligations of Borrower and are enforceable in accordance with their respective terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors’ rights generally.

The Loan Documents to which Guarantor is a party constitute the valid and legally binding obligations of Guarantor and are enforceable in accordance with their respective terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors’ rights generally.

Section 5.3    Required Consents

All consents, approvals and authorizations required for the execution, delivery and performance of this Agreement and all other Loan Documents and the borrowings contemplated hereby have been obtained, and no other consent, authorization or approval of, filing with, notice to, or exemption by, any Governmental Authority or other Person (except for those which have been obtained, made or given) is required to authorize, or is required in connection with the execution, delivery and performance of the Loan Documents of the borrowings contemplated hereby or is required as a condition to the validity or enforceability of the Loan Documents. No provision of any applicable statute, law (including, without limitation, any applicable usury or similar law), rule or regulation of any Governmental Authority prevents the execution, delivery or performance of, or affects the validity or enforceability of, the Loan Documents.

Section 5.4    Solvency

Borrower is not insolvent (as such term is defined in Section 101(31) of the Bankruptcy Code of 1978, as amended) and will not be rendered insolvent (as such term is defined in Section 101(31) of the Bankruptcy Code of 1978, as amended) by execution of this Agreement, the Building Loan Agreement, the Project loan Agreement, the Notes, the Mortgages, the documents evidencing and securing the Loans or consummation of any of the transactions contemplated thereby.

Section 5.5    Changes in Structure and Ownership of Borrower

Neither the structure of Borrower or the Member nor the direct or indirect ownership of Borrower or the Member may be changed from that existing on the date hereof (other than in connection with a Permitted Transfer).

Section 5.6    Mezzanine Loan

Notwithstanding anything to the contrary set forth in this Agreement or in the Building Loan Agreement, the Project Loan Agreement, the Acquisition Loan Mortgage, the Building Loan Mortgage, the Project Loan Mortgage or any other Loan Document to the contrary, Member, Borrower’s sole member, is permitted to enter into the Mezzanine Loan with Mezzanine Lender in accordance with certain mezzanine loan documents dated on or about the date hereof listed on Exhibit D. It is expressly understood and agreed that (i) the Administrative Agent hereby agrees to comply with the terms of the Intercreditor Agreement for the benefit of the Lenders, (ii) the Intercreditor Agreement may only be modified or amended with the unanimous written consent of all of the Lenders, and (iii) any action taken by the Administrative Agent and the Lenders with respect to the Mezzanine Loan not otherwise required to be taken pursuant to the terms of the Intercreditor Agreement may only be taken with the unanimous written consent of all of the Lenders.

ARTICLE VI
DEFAULT

Section 6.1    Events of Default

The following shall constitute Defaults hereunder and, after the giving of notice and the passage of time as provided in Section 6.2, shall constitute Events of Default:

(a)    The failure of Borrower to observe or perform any covenant or agreement contained in this Agreement; or

(b)    The occurrence of an Event of Default under (and as that term is defined respectively in) the Notes, the Building Loan Agreement, the Project Loan Agreement or the Mortgages.

Section 6.2    Events of Default; Cure Periods

The Defaults heretofore described shall constitute Events of Default hereunder upon the giving of the following notice, if applicable, and the passage of the following time:

(i)    with respect to any Default in payment of principal under subsection (a) of Section 6.1, immediately after the same shall become due and payable, whether at maturity or by acceleration or otherwise;

(ii)    with respect to any Default in payment of interest under subsection (a) of Section 6.1, five (5) Business Days after Administrative Agent has given Borrower written notice of such Default, and in connection with other monetary defaults (other than a payment of principal, for which there is no grace period), ten (10) days after Administrative Agent has given Borrower notice of such Default;

(iii)    with respect to any Default under subsection (a) of Section 6.1, other than payment defaults under this Agreement, thirty (30) days after the date Borrower has notice of such Default, provided that if such Default is not curable within such thirty (30) day period then Borrower shall have an additional period to cure same not to exceed sixty (60) days (i.e. ninety (90) days in all), provided Borrower has commenced to cure the Default during the initial thirty (30) day period and is at all times diligently and continuously proceeding to cure such Default and such Default shall not have a Material Adverse Effect; and

(iv)    with respect to any Default under subsection (b) of Section 6.1, which is not also a Default under subsection (a) of Section 6.1, there shall be no additional requirement that the Administrative Agent give notice of default hereunder and there shall be no opportunity to cure hereunder (other than the notice and opportunity to cure expressly set forth with respect to an Event of Default in each of the Loan Documents referenced in said subsection (b)).

ARTICLE VII
GENERAL PROVISIONS

The following provisions shall be applicable throughout the term of this Agreement:

Section 7.1    No Waiver

No advance of proceeds of the Loans hereunder shall constitute a waiver of any of the conditions of Lenders’ obligation to make further advances nor, in the event Borrower is unable to satisfy any such condition, shall any such waiver have the effect of precluding the Lenders from thereafter declaring such inability to be an Event of Default as hereinabove provided.

Section 7.2    Conditions for Sole Benefit of Lenders

All conditions to the obligations of the Lenders to make advances hereunder are imposed solely and exclusively for the benefit of the Lenders and their assigns and no other person shall have standing to require satisfaction of such conditions in accordance with their terms or be entitled to assume that the Lenders will refuse to make advances in the absence of strict compliance with any or all thereof and no other person shall, under any circumstances, be deemed to be the beneficiary of such conditions, any or all of which may be freely waived in whole or in part by the Lenders at any time if in its sole discretion it deems it advisable to do so, it being further understood that the Lenders and their participants shall have no obligation to see to it that the Improvements are properly and/or timely completed.

Section 7.3    Lien Law

Pursuant to Section 13 of the Lien Law of the State of New York, Borrower will receive the advances to be made hereunder and will hold the right to receive the same as a trust fund for the purpose of first paying the “costs of the improvements,” as such term is defined in such Lien Law, before using any part thereof for any other purpose.

ARTICLE VIII
THE ADMINISTRATIVE AGENT

Section 8.1    Appointment

Each Lender hereby irrevocably designates and appoints Valley National Bank as the Administrative Agent of such Lender under the Loan Documents and each Lender hereby irrevocably authorizes Valley National Bank, as the Administrative Agent for such Lender, to take such action for the benefit of such Lender and on its behalf under the provisions of the Loan Documents and to exercise such powers and perform such duties as are expressly delegated to the Administrative Agent by the terms of the Loan Documents, together with such other powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary elsewhere in any Loan Document, (i) the Administrative Agent shall not have any duties or responsibilities other than those expressly set forth therein, or any fiduciary relationship with any Lender, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into the Loan Documents or otherwise exist against the Administrative Agent; and (ii) provided no Event of Default then exists, Valley National Bank shall not (unless requested or required to do so by a Governmental Authority) voluntarily resign as Administrative Agent prior to the date upon which the Loans have been fully funded (it being agreed that such restriction on resignation is for the benefit of Borrower and Borrower is entitled to rely on same, notwithstanding anything to contrary contained herein).

Section 8.2    Delegation of Duties

The Administrative Agent may execute any of its duties under the Loan Documents by or through agents or attorneys‑in‑fact and shall be entitled to rely upon the advice of counsel concerning all matters pertaining to such duties.

Section 8.3    Exculpatory Provisions

Neither the Administrative Agent nor any of its officers, directors, employees, agents, attorneys‑in‑fact or affiliates shall be liable for any action lawfully taken or omitted to be taken by it or such Person under or in connection with the Loan Documents (except the Administrative Agent for its own gross negligence or willful misconduct), or responsible in any manner to any of the Lenders for any recitals, statements, representations or warranties made by Borrower or the Guarantor or any officer thereof contained in the Loan Documents or in any certificate, report, statement or other document referred to or provided for in, or received by the Administrative Agent under or in connection with, the Loan Documents or for the value, validity, effectiveness, genuineness, perfection, enforceability or sufficiency of any of the Loan Documents or for any failure of Borrower or the Guarantor or any other Person to perform its obligations thereunder. The Administrative Agent shall not be under any obligation to any Lender to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, the Loan Documents, or to inspect the properties, books or records of Borrower or the Guarantor. The Administrative Agent shall not be under any liability or responsibility whatsoever, as Administrative Agent, to Borrower or the Guarantor or any other Person as a consequence of any failure or delay in performance, or any breach, by any Lender of any of its obligations under any of the Loan Documents.

Section 8.4    Reliance by Administrative Agent

The Administrative Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, opinion, letter, cablegram, telegram, fax, telex or teletype message, statement, order or other document or conversation believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons and upon advice and statements of legal counsel (including, without limitation, Administrative Agent’s Counsel or any counsel to Borrower or the Guarantor), independent accountants and other experts selected by the Administrative Agent. The Administrative Agent may treat each Lender, or the Person designated in the last notice filed with it under this Section, as the holder of all of the interests of such Lender in its Loans and in its Notes until written notice of transfer, signed by such Lender (or the Person designated in the last notice filed with the Administrative Agent) and by the Person designated in such written notice of transfer, in form and substance satisfactory to the Administrative Agent, shall have been filed with the Administrative Agent. The Administrative Agent shall not be under any duty to examine or pass upon the validity, effectiveness, enforceability, perfection or genuineness of the Loan Documents or any instrument, document or communication furnished pursuant thereto or in connection therewith, and the Administrative Agent shall be entitled to assume that the same are valid, effective and genuine, have been signed or sent by the proper parties and are what they purport to be. The Administrative Agent shall be fully justified in failing or refusing to take any action under the Loan Documents unless it shall first receive such advice or concurrence of the Required Lenders (or all Lenders if required by any of the terms of this Agreement) as it deems appropriate. The Administrative Agent shall in all cases be fully protected in acting, or in refraining from acting, under the Loan Documents in accordance with a request or direction of the Required Lenders (or all Lenders if required by any of the terms of this Agreement), and such request or direction and any action taken or failure to act pursuant thereto shall be binding upon all the Lenders and all future holders of the Notes.

Section 8.5    Notice of Default

The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default unless the Administrative Agent has received written notice thereof from a Lender, Borrower or the Guarantor. In the event that the Administrative Agent receives such a notice, the Administrative Agent shall promptly give notice thereof to the Lenders and Borrower. The Administrative Agent shall take such action with respect to such Default or Event of Default as shall be directed by the Required Lenders and/or otherwise provided in accordance with Section 8.11, provided, however, that unless and until the Administrative Agent shall have received such directions and/or as otherwise provided in Section 8.11, the Administrative Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of Default as it shall deem to be in the best interests of the Lenders and only with respect to Emergency related actions.

Section 8.6    Non‑Reliance on Administrative Agent and Other Lenders

Each Lender expressly acknowledges that neither the Administrative Agent nor any of its respective officers, directors, employees, agents, attorneys-in‑fact or affiliates has made any representations or warranties to it and that no act by the Administrative Agent, including any review of the affairs of Borrower or the Guarantor, shall be deemed to constitute any representation or warranty by the Administrative Agent to any Lender. Each Lender represents to the Administrative Agent that it has, independently and without reliance upon the Administrative Agent or any other Lender, and based on such documents and information as it has deemed appropriate, made its own evaluation of and investigation into the business, operations, Property, financial and other condition and creditworthiness of Borrower and the Guarantor and made its own decision to enter into this Agreement. Each Lender also represents that it will, independently and without reliance upon the Administrative Agent or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, evaluations and decisions in taking or not taking action under any Loan Document, and to make such investigation as it deems necessary to inform itself as to the business, operations, Property, financial and other condition and creditworthiness of Borrower and the Guarantor. Except for notices, reports and other documents expressly required to be furnished to the Lenders by the Administrative Agent hereunder, the Administrative Agent shall not have any duty or responsibility to provide any Lender with any credit or other information concerning the business, operations, Property, financial and other condition or creditworthiness of Borrower and the Guarantor which may come into the possession of the Administrative Agent or any of its officers, directors, employees, agents, attorneys‑in‑fact or affiliates.

Section 8.7    Indemnification

Each Lender agrees severally to indemnify and reimburse the Administrative Agent in its capacity as such (to the extent not promptly reimbursed by Borrower and without limiting the obligation of Borrower or the Guarantor to do so), pro rata according to the outstanding principal balance of the Loans (or at any time when no Loans are outstanding, according to its Committed Amount), from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever including, without limitation, any amounts paid to the Lenders (through the Administrative Agent) by Borrower pursuant to the terms of the Loan Documents, that are subsequently rescinded or avoided, or must otherwise be restored or returned) which may at any time (including, without limitation, at any time following the payment of the Notes) be imposed on, incurred by or asserted against the Administrative Agent in any way relating to or arising out of the Loan Documents or any other documents contemplated by or referred to therein or the transactions contemplated thereby or any action taken or omitted to be taken by the Administrative Agent under or in connection with any of the foregoing; provided, however, that no Lender shall be liable for the payment of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements to the extent resulting from the finally adjudicated gross negligence or willful misconduct of the Administrative Agent. Without limitation of the foregoing, each Lender severally agrees to reimburse the Administrative Agent promptly upon demand for its pro rata share of any costs, fees and expenses (including, without limitation, reasonable fees and expenses of counsel) payable by Borrower hereunder, to the extent that the Administrative Agent has not been paid such fees or has not been reimbursed for such costs and expenses, by Borrower or the Guarantor. Any such indemnification or reimbursement paid by the Lenders to the Administrative Agent shall be considered to all matters and extent an integral part of the Loans, due and payable by the Borrower to the Lenders. The failure of any Lender to reimburse the Administrative Agent promptly upon demand for its pro rata share of any amount required to be paid by the Lenders to the Administrative Agent as provided in this Section shall not relieve any other Lender of its obligation hereunder to reimburse the Administrative Agent for its pro rata share of such amount, but no Lender shall be responsible for the failure of any other Lender to reimburse the Administrative Agent for such other Lender’s pro rata share of such amount. The agreements in this Section shall survive the payment of all amounts payable under the Loan Documents.

Section 8.8    Administrative Agent in Its Individual Capacity

Valley National Bank and its respective Affiliates may make loans to, accept deposits from, issue letters of credit for the account of, and generally engage in any kind of business with, Borrower or the Guarantor or any Affiliate of Borrower or Guarantor as though Valley National Bank were not Administrative Agent hereunder. With respect to the Notes issued to Valley National Bank and the Loans made by Valley National Bank, as a Lender, Valley National Bank shall have the same rights, powers and obligations under the Loan Documents as any Lender and may exercise the same as though it were not the Administrative Agent, and the terms “Lender” and “Lenders” shall in each case include Valley National Bank.

Section 8.9    Successor Administrative Agent

(a)    Subject to any restrictions on Administrative Agent’s right to resign under the terms of Section 8.1 hereof, if at any time the Administrative Agent deems it advisable, in its sole discretion, it may submit to each of the Lenders a written notice of its resignation as Administrative Agent under the Loan Documents, such resignation to be effective upon the earlier of the written acceptance of the duties of the Administrative Agent under the Loan Documents by a successor Administrative Agent and the 30th day after the date of such notice. Upon any such resignation, the Required Lenders shall have the right to appoint from among the Lenders a successor Administrative Agent. If no successor Administrative Agent shall have been so appointed by the Required Lenders and accepted such appointment in writing within 30 days after the retiring Administrative Agent’s giving of notice of resignation, then the retiring Administrative Agent may, on behalf of the Lenders, appoint a successor Administrative Agent, which successor Administrative Agent shall be a commercial bank or other financial institution organized under the laws of the United States of America or any State thereof and having a combined capital, surplus, and undivided profits of at least $100,000,000.

(b)    Upon the acceptance of any appointment as Administrative Agent hereunder by a successor Administrative Agent, such successor Administrative Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent’s rights, powers, privileges and duties as Administrative Agent under the Loan Documents shall be terminated. Borrower and the Lenders shall execute such documents as shall be reasonably necessary to effect such appointment. After any retiring Administrative Agent’s resignation as Administrative Agent, the provisions of the Loan Documents shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent under the Loan Documents. If at any time there shall not be a duly appointed and acting Administrative Agent, Borrower agrees to make each payment due under the Loan Documents directly to the Lenders entitled thereto during such time upon the direction of the Administrative Agent to do so.

Section 8.10    Information

The Administrative Agent agrees to request from Borrower from time to time any information as any Lender may in a notice to the Administrative Agent reasonably request that it obtain from Borrower, so long as the Administrative Agent is entitled to make such a request therefor to Borrower. The Administrative Agent will from time to time provide the Lenders with such other information as it may have received from Borrower which it deems material and advisable to provide to the Lenders, it being understood that without limiting the foregoing, any information pertaining to any Event of Default or suspected Default which Administrative Agent reasonably believes is likely to become an Event of Default shall be considered material and advisable to provide to the Lenders. In addition, any such material information shall be promptly forwarded to the Lenders. Administrative Agent will upon request certify to the Lenders the outstanding principal balance of the Loans as of September 30th of each calendar year,

Section 8.11    Procedures Upon Default by Borrower

(a)    Consultation. Upon the occurrence of an Event of Default, and within ten (10) Business Days after written notification to the Lenders by Administrative Agent of such Event of Default (a “Default Notice”) or within such shorter period of time (which in no event shall be less than two (2) Business Days) after notification as may reasonably be deemed advisable by Administrative Agent in the case of an Emergency (including, without limitation, making protective advances that Administrative Agent determines are necessary to protect or maintain the Premises), the Lenders shall consult to determine an acceptable course of action to take with respect to such Event of Default and then the Required Lenders shall direct Administrative Agent to pursue such course of action without delay and with due diligence. For that purpose, the Administrative Agent will arrange conference calls, on a regular basis, at a date and time during normal business hours (New York City time) to be agreed upon by the Required Lenders, and shall invite, in advance thereof, each of the Lenders to join same for the purpose of up-dating the Lenders on the status of such enforcement actions and resolving the desired course of action. Any such Default Notice shall inform the Lenders of the procedures required under this Section and direct the Lenders to so consult. In the event that any Lender fails to participate in the Lenders’ consultation conference held by the Administrative Agent, after being given reasonable opportunity by the Administrative Agent to so participate, within such ten (10) Business Day period (or applicable shorter period of time) such Lender shall be deemed to have consented to the vote of the Required Lenders with respect to the course of action chosen at such conference. After such consultation period, Administrative Agent shall inform the Lenders of any action that Administrative Agent takes in connection with such course of action and, with respect to any action that is material in nature, the results from taking such planned course of action as and when the same occurs. Notwithstanding the foregoing, upon the occurrence of an Emergency Administrative Agent may take any of the Emergency actions after a Default (and prior to consultation with the Lenders) that Administrative Agent, in its reasonable judgment, deems necessary to protect the Premises and maintain the lien of the Mortgages in accordance with the terms of this Agreement. Notwithstanding any of the foregoing, in no event shall the provisions of this Section or the chosen course of action require Administrative Agent or any Lender to take an action which would cause the Administrative Agent or such Lender to be in violation of any applicable legal or regulatory requirements.

(b)    Proposal by Administrative Agent. If the Required Lenders cannot agree upon an acceptable course of action to pursue within fifteen (15) Business Days after any such decision is requested by Administrative Agent or within such shorter period of time as may reasonably be deemed advisable by Administrative Agent in the case of an Emergency (including, without limitation, making protective advances that Administrative Agent determines are necessary to protect or maintain the Premises), Administrative Agent shall propose to the Lenders in writing such action as it shall deem advisable in the interest of the Lenders, including the taking of any action otherwise prohibited under this Agreement without the prior consent of the Lenders (but such action shall not include waiving of a material Event of Default or entering into any agreement restructuring the Loans) and such action may be implemented by Administrative Agent if the Required Lenders shall agree with such proposed action; provided, that any foreclosure proceedings shall be conducted at the direction of the Required Lenders, and in such instance of commencing foreclosure proceedings the Administrative Agent shall exercise the rights and remedies thereunder, including, without limitation, the rights and remedies provided under the Loan Documents; provided, further, that if, at any time the Required Lenders shall direct that a different or additional remedial action be taken (or for Administrative Agent to refrain from any such action) from that already undertaken by Administrative Agent, including the commencement of foreclosure proceedings, such different or additional remedial action shall be taken in lieu of or in addition to, the prosecution of such action taken by Administrative Agent; provided that all actions already taken by Administrative Agent in accordance with the terms of this Agreement shall be valid and binding on each of the Lenders to the extent such do not subject any of the Lenders to a violation of any applicable law or regulation.

(c)    Failure to Agree. If there shall be a disagreement among the Lenders and Administrative Agent as to whether a particular event or circumstance constitutes an Event of Default under the Loan Documents, Administrative Agent (whether on its own accord or at the request of any Lender) shall be entitled to put the resolution of such dispute to a vote by the Lenders, and the decision of the Required Lenders shall control, it being agreed that any Lender who fails to vote within twenty (20) Business Days after a written request therefor, or in the case of an Emergency, within such shorter period of time as may reasonably be deemed advisable by Administrative Agent, shall be deemed to have voted against such event or circumstance constituting an Event of Default. In the event the Required Lenders are unable to agree upon a course of action within the period afforded in this Agreement set forth in subsection (b) above, the Administrative Agent shall commence foreclosure proceedings, provided that (1) the Administrative Agent may, under its judgment, postpone commencing such proceedings for a period of up to 60 days after the occurrence of the Event of Default (provided any further extension shall require the written consent of the Required Lenders), and (2) as of commencement of the foreclosure proceedings, any decision to terminate and/or rescind from such proceedings shall require the written consent of the Required Lenders. If foreclosure is the action taken, then, after payment of all costs and expenses of foreclosure and collection, Administrative Agent shall promptly remit to Lenders all net proceeds received by Administrative Agent as a consequence of such foreclosure proceeding (which shall be paid within five (5) Business Days of receipt by Administrative Agent), including, without limitation, net proceeds of foreclosure sale net income from operation of the Premises and the Improvements pending liquidation, and net proceeds of any resale of the Premises to the Person entitled thereto in accordance with the terms of this Agreement. If the Premises are acquired through foreclosure, deed in lieu of foreclosure or otherwise, each Lender shall have an undivided interest in the Premises equal to its Commitment Percentage and title shall be taken in the name of a single purpose entity owned by the Lenders (or their respective nominees). If such title is taken, the Lenders waive any statutory or common law right of partition or any other similar rights or remedies and Administrative Agent shall prepare a recommended course of action for the Premises, which shall include a budget for expenses (a “Post-Foreclosure Plan”) and submit such Post-Foreclosure Plan to the Lenders for approval by the Required Lenders. If the Required Lenders have not approved such Post-Foreclosure Plan within 30 days following its submission to the Lenders, then any Lender may submit an alternative Post-Foreclosure Plan to Administrative Agent and Administrative Agent shall submit such alternative Post-Foreclosure Plan to the Lenders for approval by the Required Lenders. If the Required Lenders have not approved any Post-Foreclosure Plan within ninety (90) days after the initial Post-Foreclosure Plan was submitted to the Lenders, then Administrative Agent shall select a course of action for the Premises, which course of action may include the taking of any action otherwise prohibited under this Agreement without the prior consent of the Lenders, and that course of action shall control and may be implemented by Administrative Agent not earlier than seven (7) Business Days after Administrative Agent informs the Lenders in writing of such course of action; provided, that (x) such course of action shall not be to hold the Premises as a permanent investment but instead to operate, manage and maintain the Premises with a view toward disposing of the Premises at a time designed to maximize return to the Lenders and in any event within a time period consistent with the regulations applicable to national banks for owning real estate and (y) if, at any time the Required Lenders shall direct that a different or additional action be taken from that already undertaken by Administrative Agent, such different or additional action shall be taken in lieu of or in addition to, such action taken by Administrative Agent; provided that all actions already taken by Administrative Agent shall be valid and binding on each of the Lenders (provided that, if the Required Lenders cannot agree amongst themselves with the course of action recommended by Administrative Agent, the decision of Administrative Agent shall control); provided, further, that in no event or under any circumstance shall any action be undertaken which is illegal or which in the good faith opinion of Administrative Agent or in the good faith opinion of any Lender (after consultation in either case with outside counsel) would expose Administrative Agent or any such Lender to material contractual, tort or other liability.

(d)    Administrative Agent’s Rights. If the Premises are acquired by foreclosure, deed in lieu of foreclosure or otherwise, Administrative Agent shall operate, manage, maintain and develop the Premises, and effect a disposition thereof, in accordance with the Post-Foreclosure Plan. Each Lender shall promptly execute and deliver to Administrative Agent all documents and instruments which may be reasonably requested or required by Administrative Agent to enable Administrative Agent to operate, manage, maintain and develop the Premises and the Improvements and to effect a disposition thereof in accordance with the Post-Foreclosure Plan in accordance with the provisions hereof.

(e)    Administrative Agent Costs. The Lenders shall share in accordance with their respective Commitment Percentage any actual losses, liabilities, expenses or costs (including, without limitation, reasonable attorneys’ fees) sustained or incurred by Administrative Agent or any Lender as a result of any action taken or not taken by Administrative Agent in accordance with the provisions hereof, and shall remit to Administrative Agent (for appropriate distribution) their respective shares thereof within fifteen (15) Business Days after request therefor by Administrative Agent, it being agreed that if a Lender shall fail to remit its share of any such loss, expense, cost or liability when due, such share shall thereafter bear interest at a rate per annum (calculated for the actual number of days elapsed on the basis of a 360 day year) equal to the Federal Funds Rate until paid which interest shall be payable by such Lender upon demand of Administrative Agent and shall be distributed upon payment by Administrative Agent to the party or parties to whom such share of any such loss, expense, cost or liability is due.

(f)    Protective Advances. Without the Required Lenders’ prior approval, Administrative Agent may make advances (i) in the case of an Emergency, (ii) to pay taxes and insurance for the Premises, or (iii) to make any other protective advances in any calendar year of up to an aggregate amount of (x) $500,000.00.

(g)    Provisions of this Section Binding on All Loan Documents. Notwithstanding anything set forth in any other Loan Document and for the avoidance of doubt, it is expressly agreed that the provisions of this Section 8.11 shall control the procedures for enforcement under any other Loan Document.

Section 8.12    No Reliance

The provisions of this Article are for the exclusive benefit of the Administrative Agent, Valley National Bank and the Lenders. Borrower shall not be entitled to rely on any of the provisions of this Article unless expressly so provided for by any Section of this Article.

Section 8.13    Anti-Money Laundering Laws

As more particularly set forth in the Mortgages, Borrower has agreed to comply with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Patriot Act”) and provide the Administrative Agent with such information as may reasonably be required to obtain, verify and record in order to comply with the Patriot Act and the rules and regulations issued thereunder and any customer identification program established by Administrative Agent pursuant to the Patriot Act and such regulations. The Borrower agrees that it shall also provide such information to each Lender and take such actions as are reasonably requested by the Administrative Agent or any Lender in order to assist the Administrative  Agent and the Lenders in maintaining compliance with any customer identification program established by a Lender pursuant to any applicable anti-money laundering rules and regulations, including, without limitation, the Patriot Act and any similar laws, rules and regulations of the State of Israel applicable to such Lender.

ARTICLE IX
OTHER PROVISIONS

Section 9.1    Amendments and Waivers

(a)    Amendments and Waivers. The Administrative Agent and Borrower may, from time to time, enter into written amendments, supplements or modifications of the Loan Documents and the Administrative Agent on behalf of the Lenders may execute and deliver to any such parties a written instrument waiving or a consent to a departure from, on such terms and conditions as the Administrative Agent may specify in such instrument, any of the requirements of the Loan Documents or any Default and its consequences; provided, however, that:

(i)    no such amendment, supplement, modification, waiver or consent shall, without the consent of all of the Lenders (other than any Defaulting Lenders):

(1)    increase the Committed Amount of any Lender or the Total Committed Amounts or subject the Lenders to any additional obligation;

(2)    extend the Maturity Date;

(3)    decrease the rate (other than waiving the Default Rate or late fees), or change or forgive the principal amount of, or change the pro rata allocation of payments under, any Note;

(4)    reduce the amount of any fees payable to the Lenders hereunder;

(5)    postpone any date fixed for any payment of principal of, or interest on, the Loans, or for the payment of fees or any other monetary obligation of Borrower or any Guarantor;

(6)    release all or any part of the collateral for the Loans except as is contemplated in this Agreement or the other Loan Documents;

(7)    reduce the amount of the Equity Contribution as defined in and required under the Building Loan Agreement;

(8)    release the obligations of Guarantor other than in accordance with the terms of the Loan Documents, or permit the transfer of more than 10% of the direct or indirect ownership interest in the Borrower other than in accordance with the terms of the Loan Documents;

(9)    amend this Agreement or any other provision of the other Loan Documents as such affects the substance of the definition of “Required Lenders” and the required percentages of Lenders to the amendments, supplements, modifications, waivers and/or consents listed hereinabove or below; or

(10)    amend or modify the Intercreditor Agreement or take any action relating to the Permitted Mezzanine Loan not otherwise specifically set forth pursuant to the terms of the Intercreditor Agreement;

(ii)    without the consent of the Required Lenders, Administrative Agent shall not (a) consent to a change in the Budget if such change results in an increase thereof of $2,000,000.00 or more in the aggregate throughout the project (except that no such consent is required with respect to Change Orders approved under the Loan Documents and/or Budget increases with respect to which Borrower has contributed cash equity sufficient to maintain the Budget in balance), (b) consent to a change in any required occupancy hurdles for residential apartments by 5% or more in the aggregate (c) grant a waiver for longer than ninety (90) days with respect to (a) achievement of 90% or less of apartment rental hurdles or (b) cost increases of 5% or more of the Budget (in the aggregate) (except that no such consent shall be required with respect to Change Orders approved under the Loan Documents and/or Budget increases with respect to which Borrower has contributed cash equity sufficient to maintain the Budget in balance), (d) agree to reduce the minimum required rental of any residential apartment by 5% or more (individually or pursuant to multiple reductions in the aggregate), (e) waive the existence of a lien of $500,000.00 or more not otherwise permitted under the Loan Documents, (f) waive for more than thirty (30) days an Event of Default resulting from the cessation of construction of the Improvements; and

(iii)    without the written consent of Valley National Bank, no such amendment, supplement, modification or waiver shall amend, modify or waive any of the rights or obligations of the Administrative Agent hereunder or under the other Loan Documents.

(b)    Provisions Affecting Amendments and Waivers. Any such amendment, supplement, modification or waiver shall apply equally to each of the Lenders and shall be binding upon the parties to the applicable Loan Document, the Lenders, the Administrative Agent and all future holders of the Notes. In the case of any waiver, the parties to the applicable Loan Document, the Lenders and the Administrative Agent shall be restored to their former position and rights hereunder and under the outstanding Notes and other Loan Documents to the extent provided for in such waiver, and any Default waived shall not extend to any subsequent or other Default, or impair any right consequent thereon. The Loan Documents may not be amended orally or by any course of conduct.

(c)    To the extent any consent is requested under this Agreement or the other Loan Documents, Administrative Agent will provide the Lenders with written notice of any request, item, or other matter requiring such consent, along with such other materials and/or information which Administrative Agent has been provided with by the Borrower and/or the Borrower’s agents and representatives in such regard. To the extent a Lender does not provide a response approving or denying such request within a period of time equal to the shorter of (i) five (5) Business Days of receipt of such notice, or (ii) such period of time afforded to the Administrative Agent to respond to the Borrower under the Loan Documents, as applicable and as the context may require, the request shall be deemed to be disapproved by such Lender.

(d)    Parties Benefiting from this Section. The provisions of this Section are for the benefit of the Administrative Agent and the Lenders only, except as otherwise expressly set forth herein.

(e)    Provisions of this Section Binding on All Loan Documents. Notwithstanding anything set forth in any other Loan Document and for the avoidance of doubt, it is expressly agreed that the provisions of this Section 9.1 shall control any amendment, supplement, modification, waiver or consent of any other Loan Document.

Section 9.2    Assignments and Participations

(a)    Binding Obligations; No Assignment by Borrower. The Loan Documents shall be binding upon and inure to the benefit of Borrower, the Lenders, the Administrative Agent, all future holders of the Notes and their respective successors and assigns, except that Borrower may not assign, delegate or transfer any of its rights or obligations under the Loan Documents without the prior written consent of the Administrative Agent, except as may be expressly permitted under the terms of the Loan Documents.

(b)    Assignments. Each Lender shall have the right at any time, upon written notice to the Administrative Agent of its intent to do so, to sell, assign, transfer or negotiate all or any part of such Lender’s rights under the Loan Documents to (1) one or more of its Affiliates (provided the Affiliate controls, is controlled by, or is under common control with such Lender (such Affiliate being herein referred to as a “Control Affiliate”); and provided further that such Affiliate has adequate resources to thereafter fund its obligations under the Loan Documents), (2) to one or more of the other Lenders (or to Control Affiliates (provided the Control Affiliate has adequate resources to thereafter fund its obligations under the Loan Documents) of such other Lenders), (3) to an Eligible Assignee, or (4) with the prior written consent of the Administrative Agent and the prior written consent of Borrower (which consent of Borrower shall not be unreasonably withheld and which consent of Borrower shall not be required if an Event of Default exists), to any other bank, insurance company, pension fund, mutual fund or other financial institution (it being agreed that the Lenders and their respective Affiliates thereof and each Loan Participant and Affiliates thereof are approved assignees), provided that (i) each such sale, assignment, transfer or negotiation (other than sales, assignments, transfers or negotiations (x) to Affiliates of such Lender or (y) of a Lender’s entire interest) shall be in a minimum amount of $2,000,000.00 and increments of $500,000.00 in excess thereof (or such lesser amount as would constitute the balance of a Lender’s interest in the Loans and all Commitments), (ii) each such sale, assignment or transfer must be of an equal pro rata share of such Lender’s interest in the Acquisition Loan, Building Loan and Project Loan, and (iii) there shall be paid to the Administrative Agent by the assigning Lender a fee (the “Assignment Fee”) of $4,500.00 (or $7,500.00 in the case of a Defaulting Lender). For each assignment, the parties to such assignment shall execute and deliver to the Administrative Agent for its acceptance and recording an Assignment and Acceptance Agreement. Upon such execution, delivery, acceptance and recording by the Administrative Agent, from and after the effective date specified in such Assignment and Acceptance Agreement, the assignee thereunder shall be a party hereto and a party under the Building Loan Agreement and Project Loan Agreement and the other Loan Documents and, to the extent provided in such Assignment and Acceptance Agreement, the assignor Lender thereunder shall, subject to the terms of this Section, be released from its obligations under the Loan Documents. Borrower agrees upon written request of the Administrative Agent to execute and deliver (1) to such assignee, Notes, each dated the effective date of such Assignment and Acceptance Agreement, in an aggregate principal amount equal to the respective interest in the Loans or portion thereof assigned to such assignee, (2) to such assignor Lender (if less than all of such Lender’s interests in the Loans are assigned), Notes, each dated the effective date of such Assignment and Acceptance Agreement, in an aggregate principal amount equal to the balance of such assignor Lender’s interest in the Loans and (3) to the Administrative Agent, if required by it, amendments to the Building Loan Agreement in form for filing in the Kings County Clerk’s Office identifying the new Lender’s interest in the Loans. It is intended that each such new Notes shall, upon the effective date of such assignment, amend and restate the indebtedness under the Notes they replace. It shall be in the discretion of the Administrative Agent to obtain the new Notes if the assignee Lender does not require such new Notes. The issuance of such replacement Notes and/or the surrender of the Notes so replaced shall not be deemed the making of new advances, nor shall it be construed as evidence of the payment or prepayment of the indebtedness that is restated by such new Notes. Upon any such sale, assignment or other transfer, the Administrative Agent shall adjust its records to reflect the new Committed Amounts of each Lender and shall deliver a new Schedule B to Borrower and each Lender reflecting (i) such new Committed Amounts, (ii) the office of each Lender, and (iii) the address for notices of each Lender. Each party shall be responsible for its own legal fees and expenses in connection with an assignment, it being understood that Borrower shall not be obligated to pay the fees and expenses of Administrative Agent or any Lender in connection with an assignment by a Lender other than the initial Syndication. Anything to the contrary herein notwithstanding, the restrictions on assignments contained in this subsection (b) shall be for the benefit of Borrower, the Administrative Agent and the Lenders and they shall be entitled to rely on them.

(c)    Participations. Each Lender may grant participations in all or any part of its interest in the Loans, its Notes and its Committed Amount to one or more of its Affiliates (including but not limited to a Loan Participant), or, with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld) to one or more banks, insurance companies, financial institutions, pension funds or mutual funds, provided that such Lender’s obligations under the Loan Documents shall remain unchanged, such Lender shall remain solely responsible to the other parties to the Loan Documents for the performance of such obligations, Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under the Loan Documents, any participant that has purchased a participation interest in the Loans from a Lender may not sell a participation interest in such participant’s interest in the Loans, and the voting rights of any holder of any participation shall be limited to decisions on those matters set forth in Section 9.1(a). Borrower acknowledges and agrees that any such participant shall for purposes of Section 2.3 be deemed to be a “Lender”; provided, however, Borrower shall not, at any time, be obligated to pay any participant in any interest of any Lender hereunder any sum in excess of the sum which Borrower would have been obligated to pay to such Lender in respect of such interest had such Lender not sold such participation.

(d)    Tax Certificates. If any assignment is made pursuant to subsection (b) above or any participation is granted pursuant to subsection (c) above, to any Person that is not a U.S. Person, such Person shall furnish such certificates, documents or other evidence to Borrower and the Administrative Agent, in the case of clause (i) and to Borrower and the Lender which sold such participation in the case of clause (ii), as shall be required by Section 2.3.

(e)    Obligations after Assignment. No Lender shall, as between and among Borrower, the Administrative Agent and such Lender, be relieved of any of its obligations under the Loan Documents as a result of any sale, assignment, transfer or negotiation of, or granting of participations in, all or any part of its Loans, its Committed Amount or its Notes, except that a Lender shall be relieved of its obligations to the extent of any such sale, assignment, transfer, or negotiation of all or any part of its Loans, its Committed Amount or its Notes pursuant to subsection (b) above.

(f)    Assignment to a Federal Reserve Bank. Notwithstanding anything to the contrary contained in this Section, any Lender may at any time or from time to time assign all or any portion of its rights under the Loan Documents to a Federal Reserve Bank, provided that any such assignment shall not release such assignor from its obligations thereunder.

(g)    Register. The Administrative Agent, acting solely for this purpose as a non-fiduciary agent of the Borrower, shall maintain at the principal office a copy of each Assignment and Assumption Agreement delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts (and stated interest) of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower and any Lender, at any reasonable time and from time to time upon reasonable prior notice.

Each Lender that sells a participation in its Notes, acting solely for this purpose as a non-fiduciary agent of the Borrower, shall maintain a register on which it enters the name and address of each participant and the principal amounts (and stated interest) of each such participant’s interest in the Notes (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any participant or any information relating to a participant's interest in the Notes) to any person except to the extent that such disclosure is necessary to establish that such Notes are in registered form under Section 5f.103-1(c) of the United States Treasury Regulations

Section 9.3    Syndication Cooperation.

The Borrower acknowledges that Valley National Bank (“Syndicating Lender”) may syndicate a portion of their respective Commitments to one or more lenders who are not signatories to this Agreement on the date hereof through assignments of the Loans subject to the provisions of this Agreement or the sale of participations in the Loans subject to the provisions of this Agreement (the “Syndication”) and in connection therewith, the Borrower will and will cause Guarantor to take all actions as Syndicating Lender may reasonably request to assist such Syndicating Lender in its Syndication effort; which shall, after the date hereof, be at no additional cost to Borrower and Guarantor. Without limiting the generality of the foregoing, the Borrower shall and shall cause Guarantor to, at the request of the Syndicating Lender, at no cost to Borrower or Guarantor (other than their own legal or other expenses); (a) cooperate with Syndicating Lender in the preparation of information offering materials (which assistance may include reviewing and commenting on drafts of such information materials and drafting portions thereof); (b) upon reasonable notice, make representatives of the Borrower and Guarantor available to meet with prospective Lender at bank meetings and property tours; (c) provide Syndicating Lender with all information with respect to the project, the Borrower and the Guarantor reasonably deemed necessary by them to complete the Syndication successfully as long as such information may be disclosed in accordance with applicable law, and (d) execute such amendments or modifications to the Loan Documents as the Administrative Agent may reasonably request in order to aid in such Syndication, except that Borrower shall not be obligated to execute or cause Guarantor to execute any documents or amendment of the Loan Documents that would change the economics of the terms of the Loans or cause any increase in the Borrower’s or Guarantor’s obligations or any decrease in Borrower’s or Guarantor’s rights under the Loan Documents, except, in each case, to a de minimus extent.

Section 9.4    Adjustments; Set‑off

(a)    Setoff by any Lender. If any Lender (a “Benefited Lender”) shall at any time receive any payment of all or any part of its Loans, or interest thereon, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set‑off, pursuant to any bankruptcy, reorganization or liquidation of Borrower or the Guarantor or otherwise) in a greater proportion than any such payment to and collateral received by any other Lender in respect of such other Lender’s Loans, or interest thereon, such Benefited Lender shall purchase for cash from each of the other Lenders such portion of each such other Lender’s Loans, and shall provide each of such other Lenders with the benefits of any such collateral, or the proceeds thereof, as shall be necessary to cause such Benefited Lender to share the excess payment or benefits of such collateral or proceeds ratably with each of the Lenders, provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest. Borrower agree that each Lender so purchasing a portion of another Lender’s Loans may exercise all rights of payment (including, without limitation, rights of set-off, to the extent not prohibited by law) with respect to such portion as fully as if such Lender were the direct holder of such portion.

(b)    Right of Setoff. In addition to any rights and remedies of the Lenders provided by law, upon the occurrence and during the continuance of an Event of Default, each Lender shall have the right, without prior notice to Borrower, any such notice being expressly waived by Borrower to the extent not prohibited by the Loan Documents and/or applicable law, subject to the consent of the Administrative Agent, to set-off and apply against any indebtedness, whether matured or unmatured, of Borrower to such Lender, any amount owing from such Lender to Borrower, at, or at any time after, the happening of any of the above‑mentioned event. To the extent not prohibited by the Loan Documents and/or applicable law, subject to the consent of the Administrative Agent, the aforesaid right of set-off may be exercised by such Lender against Borrower or against any trustee in bankruptcy, custodian, debtor in possession, assignee for the benefit of creditors, receiver, or execution, judgment or attachment creditor of Borrower, or against anyone else claiming through or against Borrower or such trustee in bankruptcy, custodian, debtor in possession, assignee for the benefit of creditors, receiver, or execution, judgment or attachment creditor, notwithstanding the fact that such right of set-off shall not have been exercised by such Lender prior to the making, filing or issuance, or service upon such Lender of, or of notice of, any such petition, assignment for the benefit of creditors, appointment or application for the appointment of a receiver, or issuance of execution, subpoena, order or warrant. Each Lender agrees promptly to notify Borrower and the Administrative Agent after any such set-off and application made by such Lender, provided that the failure to give such notice shall not affect the validity of such set-off and application.

Section 9.5    Notices

All notices, requests and demands to or upon the respective parties to the Loan Documents to be effective shall be in writing and shall be deemed to have been duly given or made when sent by certified or registered mail, three (3) days after having been deposited in the mail, first‑class postage prepaid, or, in the case of notice by recognized nationwide commercial courier service, one (1) Business Day after delivery thereof to said courier service, addressed in each case as set forth in Schedule B attached hereto, in the case of Borrower, Guarantor, the Lenders or the Administrative Agent, or to such other addresses as to which the Administrative Agent may be hereafter notified by the respective parties thereto or any future holders of the Notes; except that any notice, request or demand by Borrower to or upon the Administrative Agent or the Lenders pursuant to Article II hereof shall not be effective until received or delivery is refused. Any party to a Loan Document may rely on signatures of the parties thereto which are transmitted by fax or other electronic means as fully as if originally signed. The parties hereto agree that the Administrative Agent shall be authorized from time to time without the execution by the parties hereto of any further amendment or modification of this Agreement, to update the locations of a Lender’s offices or its address for notices as set forth on Schedule B based on information received from any party hereto and to provide all parties with a revised Schedule B which shall then be deemed the correct office location or address for notices for all purposes under this Agreement. Notices by Borrower or Guarantor to the Lenders shall be deemed given if same have been given to the Administrative Agent.

Section 9.6    Borrower’s and Guarantor’s Obligations and Reliance in Certain Circumstances.

Notwithstanding anything to the contrary contained in this Agreement, Borrower and Guarantor shall only be required to respond to notices and demands made by the Administrative Agent, and shall not be required to respond to notices and demands made from any Lender which is not the Administrative Agent. Borrower and Guarantor shall have the right to rely on any consent or approval given by Administrative Agent, whether or not same requires the consent of the Required Lenders or all of the Lenders as being deemed the consent of any and all Lenders to the extent required hereunder.

Section 9.7    No Assignment.

Borrower shall not assign or transfer its rights or obligations hereunder without the prior written consent of Administrative Agent, other than in connection with a Permitted Transfer.

Section 9.8    Jurisdiction.

Borrower irrevocably submits to the jurisdiction of any New York State or Federal court sitting in the City of New York over any suit, action or proceeding arising out of or relating to this Agreement or any Loan Document. Borrower hereby agrees that Administrative Agent shall have the option in its sole discretion to lay the venue of any such suit, action or proceeding in the courts of the State of New York sitting in New York City or the federal District Court for the Southern or Eastern District of New York, and irrevocably waives to the fullest extent permitted by law any objection which Borrower may now or hereafter have to the laying of the venue of any such suit, action or proceeding brought in such court and any claim that any suit, action or proceeding brought in such court has been brought in an inconvenient form. Borrower agrees that a final judgment of any such suit, action or proceeding brought in such a court shall be conclusive and binding upon Borrower.

Section 9.9    Service of Process.

Borrower hereby irrevocably consents to the service of process in any suit, action or proceeding by sending the same by first class mail, return receipt requested, or by overnight courier service, to the address of Borrower set forth in or referred to in Section 8.6. Borrower hereby agrees that any such service (i) shall be deemed in every respect effective service of process upon it in any such suit, action, or proceeding, and (ii) shall to the fullest extent enforceable by law, be taken and held to be valid personal service upon and personal delivery to it. Nothing in the Loan Documents or any modification, waiver, consent or amendment thereto shall affect the right of Administrative Agent to serve process in any manner permitted by law.

Section 9.10    WAIVER OF TRIAL BY JURY.

ADMINISTRATIVE AGENT, THE LENDERS, AND BORROWER EACH HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION ARISING OUT OF, UNDER OR IN CONNECTION WITH THE LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREIN. FURTHER, EACH OF ADMINISTRATIVE AGENT, THE LENDERS, AND BORROWER HEREBY CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF ANY OTHER PARTY, OR COUNSEL TO ANY OTHER PARTY, HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH PARTY WOULD NOT, IN THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION. EACH OF ADMINISTRATIVE AGENT, THE LENDERS, AND BORROWER ACKNOWLEDGES THAT THE OTHER PARTIES HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, INTER ALIA, THE PROVISIONS OF THIS SECTION. IN AN ACTION COMMENCED IN THE COMMERCIAL DIVISION, NEW YORK STATE SUPREME COURT, THE PARTIES HEREBY AGREE, SUBJECT TO THE REQUIREMENTS FOR A CASE TO BE HEARD IN THE COMMERCIAL DIVISION, TO APPLY, AT ADMINISTRATIVE AGENT’S ELECTION, THE COURT’S ACCELERATED ADJUDICATION PROCEDURES SET FORTH IN RULE 9 OF THE RULES OF PRACTICE FOR THE COMMERCIAL DIVISION, IN CONNECTION WITH ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE BREACH, TERMINATION, ENFORCEMENT OR VALIDITY THEREOF.

Section 9.11    Governing Law.

This Agreement shall, without regard to place of contract or payment, be construed and enforced according to the laws of the State of New York, without giving effect to its principles of conflicts of laws.

Section 9.12    Severability.

In the event any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall, at the option of Administrative Agent, not affect any other provision of this Agreement but this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein or therein.

Section 9.13    Headings Descriptive.

Section headings have been inserted in this Agreement and the other Loan Documents for convenience only and shall in no way affect the meaning or construction of any provision hereof or thereof.

Section 9.14    Counterparts.

This Agreement and the other Loan Documents may be executed by one or more of the parties thereto on any number of separate counterparts and all of said counterparts taken together shall be deemed to constitute one and the same document. It shall not be necessary in making proof of this Agreement or any other Loan Document to produce or account for more than one counterpart signed by the party to be charged.

Section 9.15    Definitions Include Amendments.

Definitions contained in this Agreement which identify documents, including the other Loan Documents, shall be deemed to include all amendments and supplements to such documents entered into from time to time with the consent of Lender. Reference to this Agreement in any of the foregoing documents shall be deemed to include all amendments and supplements to this Agreement.

[Remainder of page intentionally left blank; signature page follows]

IN WITNESS WHEREOF, the parties hereto have caused this Credit Agreement to be duly executed and delivered by their proper and duly authorized officers as of the day and year first above written.

[Signature page for Credit

Agreement continued]

SCHEDULE A

LEGAL DESCRIPTION OF THE LAND

SCHEDULE B

COMMITTED AMOUNTS, OFFICES AND

ADDRESSES FOR NOTICES

Valley National Bank, as Administrative Agent and as a Lender:

Address for Notices:

Valley National Bank

1 Pennsylvania Plaza, 46th Floor

New York, New York 10119

with a copy to:

Emmet, Marvin & Martin, LLP

120 Broadway

New York, New York, New York 10271

Attention: John P. Uehlinger, Esq.

Borrower:

Addresses for Notices:

Dean Owner LLC

4611 Twelfth Avenue, Suite 1L

Brooklyn, New York 11219

with a copy to:

Blaivas & Associates, P.C.

1430 Broadway, Suite 1603

New York, New York 10018

Attention: David G. Blaivas, Esq.

Guarantor:

Addresses for Notices:

Clipper Realty Inc.

4611 Twelfth Avenue, Suite 1L

Brooklyn, New York 11219

Attention: David Bistricer

with a copy to:

Blaivas & Associates, P.C.

1430 Broadway, Suite 1603

New York, New York 10018

Attention: David G. Blaivas, Esq.

SCHEDULE C

FORM OF TAX COMPLIANCE CERTIFICATE

FORM OF TAX COMPLIANCE CERTIFICATE

(For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)

Reference is hereby made to the Credit Agreement dated as of August 10, 2023 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among Dean Owner LLC (the “Borrower”), the lenders party hereto (together with their respective assigns, the “Lenders”, each a “Lender”) and Valley National Bank, as administrative agent for the Lenders. Capitalized terms used herein and not defined herein shall have the meanings assigned thereto in the Credit Agreement.

Date: ________ __, 20[ ]

SCHEDULE C (continued)

FORM OF TAX COMPLIANCE CERTIFICATE

(For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)

Reference is hereby made to the Credit Agreement dated as of August 10, 2023 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among Dean Owner LLC (the “Borrower”), the lenders party hereto (together with their respective assigns, the “Lenders”, each a “Lender”) and Valley National Bank, as administrative agent for the Lenders. Capitalized terms used herein and not defined herein shall have the meanings assigned thereto in the Credit Agreement.

Date: ________ __, 20[ ]

SCHEDULE C (continued)

FORM OF U.S. TAX COMPLIANCE CERTIFICATE

(For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)

Reference is hereby made to the Credit Agreement dated as of August 10, 2023 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among Dean Owner LLC (the “Borrower”), the lenders party hereto (together with their respective assigns, the “Lenders”, each a “Lender”) and Valley National Bank, as administrative agent for the Lenders. Capitalized terms used herein and not defined herein shall have the meanings assigned thereto in the Credit Agreement.

Date: ________ __, 20[ ]

SCHEDULE C (continued)

FORM OF U.S. TAX COMPLIANCE CERTIFICATE

(For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)

Reference is hereby made to the Credit Agreement dated as of August 10, 2023 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among Dean Owner LLC (the “Borrower”), the lenders party hereto (together with their respective assigns, the “Lenders”, each a “Lender”) and Valley National Bank, as administrative agent for the Lenders. Capitalized terms used herein and not defined herein shall have the meanings assigned thereto in the Credit Agreement.

Date: ________ __, 20[ ]

SCHEDULE D

BUDGET

[see attached]

SCHEDULE E

BUILDING LOAN COSTS

[see attached]

SCHEDULE F

PROJECT LOAN COSTS

[see attached]

EXHIBIT A

FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT

Assignment and Acceptance Agreement

This Assignment and Acceptance Agreement (the “Assignment and Acceptance”) is dated as of the Effective Date set forth below and is entered into by and between the Assignor identified in item 1 below (the “Assignor”) and the Assignee identified in item 2 below (the “Assignee). Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement identified below (as amended, the “Credit Agreement”), receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Acceptance as if set forth herein in full.

For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below (i) all of the Assignor’s rights and obligations in its capacity as a Lender under the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of the Assignor under the respective facilities identified below (collectively, the “Facility”), and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of the Assignor (in its capacity as a Lender against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned by the Assignor to the Assignee pursuant to clauses (i) and (ii) above being referred to herein collectively as the “Assigned Interest”). Each such sale and assignment is without recourse to the Assignor and, except as expressly provided in this Assignment and Acceptance, without representation or warranty by the Assignor.

Assignor [is] [is not] a Defaulting Lender

The terms set forth in this Assignment and Acceptance are hereby agreed to:

Consented, Accepted and Agreed to:

VALLEY NATIONAL BANK, as Administrative Agent

[PROVIDED NO EVENT OF DEFAULT EXISTS:]

Consented to:

DEAN OWNER LLC,

a Delaware limited liability company

ANNEX 1

STANDARD TERMS AND CONDITIONS FOR

ASSIGNMENT AND ACCEPTANCE

1.         Representations and Warranties.

1.1         Assignor. the Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any lien, encumbrance or other adverse claim, (iii) it is duly organized and validly existing under the laws of its jurisdiction and has full power and authority, and has taken all action necessary, to execute and deliver the Loan Documents to which it is a party and this Assignment and Acceptance and to consummate the transactions contemplated thereby and hereby, (iv) it is not a Defaulting Lender; (v) the Loan Documents to which it is a party and this Assignment and Acceptance have been duly executed and delivered by Assignor and constitutes legal, valid and binding obligations of Assignor subject to applicable bankruptcy, insolvency, reorganization and other similar laws affecting enforcement generally and general principals of equity; (vi) attached as Exhibit A is a list of all material Loan Documents evidencing and securing the Facility, true and correct copies of which (other than the Fee Letter) have been delivered by Assignor to Assignee; (vii) as of _____________ the principal amount outstanding under the Facility is $__________ under the Acquisition Loan, $___________, under the Building Loan and $______________ under the Project Loan; (viii) there currently exists no monetary Event of Default nor to the best of Assignor’s knowledge any material non-monetary Event of Default under the Loan Documents and, to the best of Assignor’s knowledge, no event has occurred that but for the giving of notice or the passage of time would constitute a monetary or material non-monetary Event of Default under the Loan Documents; (ix) as of ____________ there are no letters of credit issued under the Facility or any letters of credit, cash reserves or other deposits held by Administrative Agent as collateral security for the Facility other than __________________; (x) as of the date hereof, Assignor is not a party to any litigation, action, suit or proceeding with respect to the Facility, and there is to Assignor’s knowledge no litigation, action, suite or proceeding threatened in writing with respect to the Facility or that would prohibit or impair Assignor from entering into the Loan Documents or this Assignment and Acceptance; (xi) no consent is required for the execution and delivery by Assignor of this Assignment and Acceptance or the amendment to the Credit Agreement delivered simultaneously herewith, which consent has not already been obtained; and (xii) the execution and delivery by Assignor of this Assignment and Acceptance and the performance of the transactions contemplated hereby will not conflict with or result in a breach of any terms of or constitute a default under any agreement or instrument to which Assignor is a party or is bound; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Credit Agreement or any other Loan Document except as otherwise set forth herein, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial condition of the Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in respect of any Loan Document, or (iv) the performance or observance by the Borrower, any of its Subsidiaries or Affiliates or any other Person of any of their respective obligations under any Loan Document.

1.2.         Assignee. the Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Acceptance and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of the Assigned Interest, shall have the obligations of a Lender thereunder, (iii) it is sophisticated with respect to decisions to acquire assets of the type represented by the Assigned Interest and either it, or the Person exercising discretion in making its decision to acquire the Assigned Interest, is experienced in acquiring assets of such type, (iv) it has received a copy of the Credit Agreement, and has received or has been accorded the opportunity to receive copies of the most recent financial statements delivered pursuant thereto, as applicable, and such other documents and information as it deems appropriate to make its own credit analysis and decision to enter into this Assignment and Acceptance and to purchase such Assigned Interest, (v) it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Assignment and Acceptance and to purchase Assigned Interest, and (vi) [if it is a Foreign Lender attached to the Assignment and Acceptance is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by the Assignee; and (b) agrees that (i) it will, independently and without reliance on the Administrative Agent, the Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender.

2.         Payments. From and after the Effective Date, the Administrative Agent shall make all payments in respect of the Assigned Interest (including payments of principal, interest, fees and other amounts) to the Assignor for amounts which have accrued to but excluding the Effective Date and to the] Assignee for amounts which have accrued from and after the Effective Date. Notwithstanding the foregoing, the Administrative Agent shall make all payments of interest, fees or other amounts paid or payable in kind from and after the Effective Date to the Assignee.

3.         General Provisions. This Assignment and Acceptance shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. This Assignment and Acceptance may be executed in any number of counterparts, which together shall constitute one instrument. Delivery of an executed counterpart of a signature page of this Assignment and Acceptance by telecopy shall be effective as delivery of a manually executed counterpart of this Assignment and Acceptance. This Assignment and Acceptance shall be governed by, and construed in accordance with, the law of the State of New York.

EXHIBIT B

FORM OF NOTE

[see attached]

EXHIBIT C

ORGANIZATIONAL CHART OF BORROWER

[see attached]

EXHIBIT D

LIST OF MEZZANINE LOAN DOCUMENTS

Exhibit 10.5

MEZZANINE LOAN AGREEMENT

Dated as of August 10, 2023

by and among

BADF 953 DEAN STREET LENDER LLC,

as Administrative Agent
c/o Aviv Arava Management LLC

123 5th Avenue, 4th Floor

New York, New York 10003

(“Administrative Agent”),

the lenders party hereto

(the “Lenders”),

and

DEAN MEMBER LLC

4611 12th Avenue, Suite 1L

Brooklyn, New York 11219

(“Borrower”)

MEZZANINE LOAN AGREEMENT (the “Agreement”), dated as of the 10th day of August, 2023 by and among BADF 953 DEAN STREET LENDER LLC, as Administrative Agent for the Lenders hereinafter defined, having an office c/o Aviv Arava Management LLC, 123 5th Avenue, 4th Floor, New York, New York 10003 (together with its successors and assigns, “Administrative Agent”), the lenders party hereto (together with their respective assigns, the “Lenders”; each a “Lender”), and DEAN MEMBER LLC, a Delaware limited liability company, having an office at 4611 12th Avenue, Suite 1L, Brooklyn, New York 11219 (“Borrower”).

W I T N E S S E T H:

WHEREAS, Borrower is the legal and beneficial owner of 100% of the issued and outstanding limited liability company interests (the “Collateral”) in Dean Owner LLC, a Delaware limited liability company (the “Senior Borrower”); and

WHEREAS, Senior Borrower is the owner of a certain parcel of real property located at 953 Dean Street, Brooklyn, New York (the “Property”) and more particularly described in Schedule A attached hereto, together with all Improvements presently thereon, and all appurtenances thereto; and

WHEREAS, the Lenders have agreed to lend to Borrower the principal sum of up to $8,000,000.00; and

WHEREAS, Administrative Agent and the Lenders have advised Borrower that, subject to the terms of this Agreement and the various documents to be executed in connection herewith, and based upon the representations, warranties, covenants and undertakings of Borrower herein contained, Administrative Agent and the Lenders are willing to make the Loan to Borrower on the terms and conditions set forth herein.

WHEREAS, this Agreement pertains to the advances of the Loan.

NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt whereof is hereby acknowledged, Administrative Agent, the Lenders and Borrower hereby agree as follows:

PARTICULAR TERMS; DEFINITIONS

For all purposes of this Agreement, the following terms, except as otherwise expressly provided or unless the context requires otherwise, shall have the respective meanings hereinafter specified, such definitions to be applicable equally to the singular and plural forms of such terms:

“421-a Requirements” means any and all rules, regulations, requirements, restrictions, means, methods, filings and the like with respect to the 421-a Tax Exemption Program, including, without limitation, any required timelines and deadlines required to comply with the 421-a Tax Exemption Program.

“421-a Tax Benefits” means the real estate tax exemption benefits for the Premises arising under Section 421-a of the New York Real Property Tax Law pursuant to the 421-a Tax Exemption Program.

“421-a Tax Exemption Program” means the partial tax exemption program known as the Affordable New York Housing Program under Section 421-a of the New York Real Property Tax Law pursuant to which the Premises will receive a partial real estate tax exemption during the construction of the Improvements and a thirty five (35) year post-construction partial tax exemption upon Senior Borrower’s satisfaction of the conditions of said Section and the rules and regulations promulgated thereunder, as more particularly described in the appraisal dated April 26, 2023 prepared by Newmark Valuation & Advisory as Job No. 23-0183036.

“Acquisition Loan”: That certain loan in the principal amount of $36,985,000.00 made by the Senior Lenders to Senior Borrower to refinance the existing mortgage loan encumbering the Premises.

“Acquisition Loan Assignment of Leases”: That certain Acquisition Loan Assignment of Leases and Rents, dated the date hereof, made by Senior Borrower to Senior Administrative Agent and any future amendments, modifications or supplements thereto.

“Acquisition Loan Mortgage”: That certain Consolidation, Modification, Extension and Spreader Agreement (Acquisition Loan Mortgage), dated the date hereof, made by and between Senior Borrower and Senior Administrative Agent in the principal amount of the Acquisition Loan, encumbering the Premises as a first mortgage lien and securing repayment of the Acquisition Loan, and any future amendments, modifications or supplements thereto.

“Acquisition Loan Notes”: The Amended and Restated Acquisition Loan Notes given by Senior Borrower to the Senior Lenders in the aggregate principal amount of the Acquisition Loan, and any future amendments, modifications or supplements thereto.

“Administrative Agent”: BADF 953 Dean Street Lender LLC and its successors and assigns.

“Administrative Agent’s Counsel”: Donovan LLP.

“Administrative Agent’s Counsel Fees”: All reasonable fees and disbursements of Administrative Agent’s Counsel.

“Administrative Agent’s Engineer”: means GRS Group.

“Administrative Agent’s Engineer Fees”: All reasonable fees and disbursements of Administrative Agent’s Engineer.

“Administrative Agent’s Notice Address”: The following address of Administrative Agent:

“Administrative Fee”: $12,000.00 per annum, payable in advance, by Borrower to Administrative Agent for its sole benefit, on the date hereof and on each anniversary of the date hereof until the final loan draw has been made under the Building Loan and/or Project Loan, whichever is later, it being agreed that the Administrative Fee for each extension period (if applicable) shall be $6,000.00.

“Affiliate”: As to any person or entity, any other person or entity which, directly or indirectly, is in control of, is controlled by, or is under common control with, such person or entity. For purposes of this definition, control of a person or entity shall mean the power, direct or indirect, (i) to vote 20% or more of the securities or other interests having ordinary voting power for the election of directors or other managing persons thereof or (ii) to direct or cause the direction of the management and policies of such person or entity, whether by contract or otherwise.

“Affiliate Fees”: Any development or administrative fees, or other fees or amounts, payable to any Affiliate of Borrower.

“Architect’s Contract”: The contract between Jacob Schwimmer and Clipper Equity, on behalf of Senior Borrower, and Borrower’s Architect in connection with the construction of the Improvements, dated as of November 23, 2021, which contract shall be satisfactory in all respects to Administrative Agent (Administrative Agent hereby confirming that it has approved same).

“Assignment of Contracts”: That certain Assignment of Contracts, Permits, Plans and Approvals, dated the date hereof, from Senior Borrower to Senior Administrative Agent, and any future amendments, modifications or supplements thereto.

“Assignment of Management, Maintenance, Service, Operating, Brokerage and Leasing Agreements”: That certain Assignment of Management, Maintenance, Service, Operating, Brokerage and Leasing Agreements, dated the date hereof, from Senior Borrower to Senior Administrative Agent, and any future amendments, modifications or supplements thereto.

“Bad Acts Guaranty”: That certain Bad Acts Guaranty, dated the date hereof, given by Guarantor to Administrative Agent, and any future amendments, modifications or supplements thereto.

“Borrower”: Dean Member LLC, a Delaware limited liability company, and its successors and/or assigns.

“Borrower’s Architect”: means J Frankl Architects or any architect engaged by Senior Borrower and/or Borrower with the prior written consent of Administrative Agent.

“Borrower’s Notice Address”: The following address of Borrower:

“Budget”: The budget attached hereto as Schedule B or the last of any budgets hereafter approved in writing by Administrative Agent.

“Building Loan”: That certain loan in the maximum principal amount of up to $62,410,562.00 made by the Senior Lenders to Senior Borrower to finance other expenses of Borrower pursuant to the Building Loan Agreement, which Building Loan is evidenced by the Building Loan Note and secured by, among other things, the Building Loan Mortgage.

“Building Loan Agreement”: That certain Building Loan Agreement by and between Senior Borrower and Senior Administrative Agent, dated the date hereof, and any future amendments, modifications or supplements thereto.

“Building Loan Assignment of Leases”: That certain Building Loan Assignment of Leases and Rents, dated the date hereof, from Senior Borrower to Senior Administrative Agent, and any future amendments, modifications or supplements thereto.

“Building Loan Costs”: Those costs described in Schedule B or the last of any such schedule of building loan costs hereafter approved by Senior Lender, which Senior Borrower represents to Lender are items constituting costs of the Improvements as contemplated by Section 22 of the New York Lien Law.

“Building Loan Mortgage”: That certain Building Loan Mortgage and Security Agreement, dated the date hereof, from Senior Borrower to Senior Administrative Agent in the principal amount of the Building Loan, encumbering the Premises as a second mortgage lien (subject only to the Acquisition Loan Mortgage) and securing repayment of the Building Loan, and any future amendments, modifications or supplements thereto.

“Building Loan Notes”: The Building Loan Notes, given by Senior Borrower to the Senior Lenders in the aggregate principal amount of the Building Loan, and any future amendments, modifications or supplements thereto.

“Change Order”: Any amendment or modification to the Plans, the General Contract or any Subcontract.

“Commitment Fee”: $110,000.00.

“Committed Amount”: With respect to each Lender, the amount set forth on Schedule C with respect to such Lender under the heading “Committed Amount.”

“Completion Date”: November 10, 2025, as the same may be extended as a result of Force Majeure, but in no event later than the required completion date mandated by the 421-a Tax Exemption Program.

“Credit Agreement”: That certain Credit Agreement, dated as of the date hereof, by and among Senior Borrower, Senior Administrative Agent and the Senior Lenders party thereto from time to time.

“Environmental Indemnification Agreement”: That certain Environmental Indemnification Agreement, dated the date hereof, made by Borrower and Guarantor in favor of Administrative Agent, and any future amendments, modifications or supplements thereto.

“Equity Contribution”: Borrower’s obligation to contribute not less than $41,304,443.00 in equity towards the prior acquisition of the Premises and the construction of the Improvements, which contribution shall not include any payments made in respect of Affiliate Fees.

“Event of Default”: As defined in Section 4.1 hereof.

“Exit Fee” has the meaning set forth in the Note.

“Financial Statements”: The financial statements of Borrower and Guarantor.

“Force Majeure”: Delays in construction of the Improvements caused by or attributable to acts of God, strikes, unusual weather conditions, labor slowdowns, shutdowns of construction at the Premises mandated by a Governmental Authority as a result of a pandemic, inability to obtain required utility services, governmental restrictions, inability to obtain labor and/or materials after reasonable efforts at reasonable costs (other than any delay resulting from or otherwise attributable to the failure of Senior Borrower and/or Borrower (other than as a result of Force Majeure) to obtain, maintain or renew any authorization, certificate, permit or approval from any Governmental Authority or Local Authority necessary to construct, occupy or operate the Premises or any part thereof, including, without limitation, any and all building permits)) not to exceed one hundred twenty (120) days in the aggregate for all Force Majeure events (but in no event whatsoever shall the Completion Date be extended beyond the required completion date for the Improvements mandated by the 421-a Tax Exemption Program), and further provided however that the occurrence of any Force Majeure event shall not cause interest not to accrue under the Note or extend the Maturity Date.

“FRESH Benefits”: The zoning floor area benefits for the Premises that would be achieved upon Borrower’s compliance with the FRESH Program, expected to be approximately 7,150 square feet of additional zoning floor area.

“FRESH Program”: The Food Retail Expansion to Support Health program managed by the New York City Department of City Planning and the City Planning Commission, which program provides additional development rights for a project that complies with the program.

“General Contract”: The agreement between Senior Borrower and the General Contractor relating to the construction of the Improvements, dated as of December 30, 2021, (Administrative Agent hereby confirms that it has approved the same).

“General Contractor”: Twin Group Associates Inc., a general contractor who is licensed in the State of New York, and who has been approved by Administrative Agent.

“Governmental Authority”: The United States, the State in which the Premises are located and any political subdivision thereof, and any agency, department, commission, board, bureau or instrumentality of any of them.

“Guaranties”: Collectively, (i) the Guaranty of Payment, (ii) the Guaranty of Completion, (iii) the Guaranty of Interest and Expenses, and (iv) the Bad Acts Guaranty, and any future amendments, modifications or supplements thereto.

“Guarantor”: means Clipper Realty Inc., a Maryland corporation.

“Guarantor’s Notice Addresses”: The following address of Guarantor:

“Guaranty of Completion”: That certain Guaranty of Completion, dated the date hereof, given by Guarantor to Administrative Agent, and any future amendments, modifications or supplements thereto.

“Guaranty of Interest and Expenses”: That certain Guaranty of Interest and Expenses, dated the date hereof, given by Guarantor to Administrative Agent, and any future amendments, modifications or supplements thereto.

“Guaranty of Payment”: That certain Guaranty of Payment, dated the date hereof, given by Guarantor to Administrative Agent, and any future amendments, modifications or supplements thereto.

“Hazardous Material”: As defined in the Environmental Indemnification Agreement.

“HPD”: The New York City Department of Housing Preservation and Development.

“Improvements”: Site improvements on the Land, including, but not limited to, the construction of a 246,768 gross square foot mixed-use building comprised of 240 residential apartments 9,319 square feet of commercial space, and 84 parking spaces together with such facilities, amenities and other items as are set forth in the Plans or that may be required by Administrative Agent, any Local Authority or other Governmental Authority or local law, all of which must be constructed in accordance with the Plans.

“Indebtedness”: As to any person or entity, at a particular time, all items which constitute, without duplication, (i) indebtedness for borrowed money or the deferred purchase price of property (other than trade payables incurred in the ordinary course of business), (ii) indebtedness evidenced by notes, bonds, debentures or similar instruments, (iii) obligations with respect to any conditional sale or title retention agreement, (iv) indebtedness arising under acceptance facilities and the amount available to be drawn under all letters of credit issued for the account of such person or entity and, without duplication, all drafts drawn thereunder to the extent such person or entity shall not have reimbursed the issuer in respect of the issuer’s payment of such drafts, (v) all liabilities secured by any mortgage, pledge, lien or other security interest on any property owned by such person or entity even though such person or entity has not assumed or otherwise become liable for the payment thereof (other than carriers’, warehousemen’s, mechanics’, repairmen’s or other like non-consensual statutory liens arising in the ordinary course of business), (vi) liabilities under interest rate hedge agreements and other interest rate protection products and (vii) contingent obligations or liabilities.

“Initial Closing”: The time of execution and delivery hereof by Borrower, Lenders and Administrative Agent.

“Intercreditor Agreement”: That certain Intercreditor Agreement, dated as of the date hereof, by and among the Administrative Agent and the Senior Lender with respect to the relative interests of the Lender and the Senior Lender.

“Land”: That certain parcel of land located at 953 Dean Street, Brooklyn, New York, designated as Block 1134, Lot 96 f/k/a old lots 2, 11, 12, 96 and 97 on the Tax Map of the City of New York, and more particularly described in Schedule A attached hereto and made a part hereof.

“Lender’s Notice Address”: The following address of Lender:

“Loan”: principal of up to $8,000,000.00, together with all interest which shall accrue and be accruing hereunder, compounded monthly, together with interest on unpaid interest at the then applicable interest rate hereunder.

“Loan Documents”: This Agreement, the Note, the Pledge and Security Agreement, the Guaranty of Completion, the Guaranty of Payment, the Guaranty of Interest and Expenses, the Bad Acts Guaranty, the Environmental Indemnification Agreement, UCC-1 financing statements and any other documents now or hereafter required to be executed or delivered in connection with the Loan pertaining to the Collateral and any other documents now or hereafter required to be executed or delivered in connection with the Loan, the construction of the Improvements or pertaining to the Premises.

“Local Authority”: Any Governmental Authority which exercises jurisdiction over the Premises or construction thereon.

“Major Subcontract”: Any Subcontract in an amount equal to or exceeding $1,000,000.00.

“Major Subcontractor”: Any contractor, subcontractor, trade contractor, materialmen, vendor or supply contractor party to a Major Subcontract.

“Material Adverse Effect”: means a material adverse effect, as determined by the Administrative Agent in its reasonable judgment and discretion, in (a) the financial condition and/or operations of (i) the Premises and/or the Collateral, (ii) Borrower, or (iii) the Senior Borrower, which, in each case, would be reasonably expected to materially and adversely affect Borrower’s ability to pay and perform its obligations under the Loan Documents; or (b) the appraised value of the Premises as set forth in a current appraisal; or (c) the status of title to, or the lien of the Pledge and Security Agreement upon, the Collateral.

“Minimum Interest”: with respect to any repayment or prepayment of the Principal Amount in its entirety, whether at the Maturity Date or otherwise (including upon acceleration of the Loan following an Event of Default), an amount equal to $1,927,453.00, minus interest, if any, at the interest rate set forth in the Note (but not at the Default Rate) previously paid by Borrower on the Loan.

“Note”: The Mezzanine Loan Note given by Borrower to the Lenders in the aggregate principal amount of the Loan, and any future amendments, modifications or supplements thereto.

“NYCEDC”: means New York City Economic Development Corporation.

“NYCIDA”: means New York City Industrial Development Agency.

“Operating Agreement”: The Operating Agreement of Borrower dated as of August 10, 2023.

“Permitted Change”: Any change in any fact, circumstance, condition, representation or warranty over time or during the construction of the Improvements the existence of which does not constitute after the passage of any applicable notice, grace or cure period, if any, an Event of Default hereunder or under any other Loan Document.

“Permitted Encumbrances”: shall mean (i) the liens created by the Loan Documents and against the Collateral, (ii) the liens created by the Senior Loan Documents as against the Premises, (iii) all liens and other matters disclosed in the title insurance policy insuring the Lien of the Senior Loan Documents, (iv) all liens and other matters disclosed in the UCC Insurance Policy insuring the Lien of the Pledge and Security Agreement securing the Collateral, (v) liens, if any, for Taxes or other charges not yet due and payable and not delinquent, (vi) any workers’, mechanics’ or other similar Liens on the Premises, provided, that any such lien is bonded or discharged within thirty (30) days after Senior Borrower first receives notice of such lien, (vii) existing Leases and all future Leases (if any) entered into by Senior Borrower in strict accordance with the terms of the Senior Loan Documents and subject to any prohibition on leasing set forth therein, and (viii) such other title and survey exceptions as Administrative Agent approves in writing in Administrative Agent’s discretion.

“Permitted Lease” means (a) a commercial lease which is at a rent not less than the market rent, as reasonably determined by Senior Borrower and/or Borrower (and confirmed by Senior Lender and Administrative Agent in a manner consistent with the approval of Senior Lender), and which, with respect to any commercial space which is subject to the Fresh Program, complies with the requirements of the Fresh Program, (b) a residential lease of an apartment at the Premises (i) which is on Senior Borrower’s standard form of market-rate rent stabilized apartment lease or affordable housing apartment lease (which standard forms of market rate rent stabilized apartment lease and affordable housing apartment lease shall be reasonably acceptable to and reasonably approved by Senior Lender and Administrative Agent (in a manner consistent with the approval of Senior Lender) and shall contain such riders in such forms as shall be required under the 421-a Requirements and/or any other legal requirements, without material modification), (ii) to an individual or individuals which intends to occupy the apartment in question and which is not affiliated with or related to Senior Borrower, the direct or indirect owners of Senior Borrower, and/or Guarantor, (iii) which shall be at a rent not less than (x) in the case of market-rate leases, the market rent (or such lesser amount as shall be permitted under the 421-a Tax Exemption Program and/or any other applicable legal requirements, as reasonably determined by Senior Borrower and/or Borrower (and confirmed by Senior Lender and Administrative Agent in a manner consistent with the approval of Lender), or (y) in the case of affordable housing leases, the lesser of the market rent and the maximum regulated rent allowed by applicable law, as reasonably determined by Borrower (and confirmed by Senior Lender and Administrative Agent in a manner consistent with the approval of Lender), (iv) which shall provide for a term of not less than six (6) months and not more than two (2) years (but subject to legal renewals), and (v) which shall be subordinate by its terms to the Senior Loan Mortgages and all existing and future advances thereunder, and to any renewal, modification, extension or increase to any of the foregoing, or (c) any other lease which is otherwise approved in writing by Senior Lender and Administrative Agent, such approval not to be unreasonably withheld, conditioned or delayed (in a manner consistent with the approval of Senior Lender).

“Permitted Transfer” means (a) the transfer of a direct or indirect ownership interest in Senior Borrower in connection with a transfer of the Collateral pursuant to the Pledge and Security Agreement, or (b) the transfer of a direct or indirect ownership interest in Borrower, above the level of Gunki Holdings LLC, (i) by any of the direct or indirect owners of the Borrower to Affiliates, family members, trusts established for the benefit of such family members, or entities owned and controlled by any of the foregoing, or (ii) any other transfer of a direct or indirect ownership interest in Borrower made with the prior written consent of Administrative Agent (which may be given or denied in its sole discretion), provided that in all cases: (w) the transfer shall be limited to a 49% interest in the Borrower above the level of Gunki Holdings LLC, (x) the Guarantor (or family members of the principals of Guarantor or trusts for the benefit thereof) shall continue to maintain their direct or indirect ownership interest in the Borrower, and (y) the Guarantor shall continue directly or indirectly to manage and control the Borrower, and (z) no transferee is a Prohibited Person. Borrower shall provide Administrative Agent with prior written notice of a proposed Permitted Transfer together with copies of documentation evidencing same, and no such Permitted Transfer that does not otherwise need Administrative Agent’s consent shall be deemed effective until Administrative Agent shall have been given such written notice and shall have confirmed that the proposed transferee is not a Prohibited Person. In addition, a change in the structure or the direct or indirect ownership of Borrower, the Collateral or the Premises in connection with an enforcement of the remedies under the Senior Loan or by deed or assignment in lieu of such foreclosure or enforcement to a Person designated by Senior Administrative Agent shall be considered a Permitted Transfer.

“Person”: An individual, a partnership, a corporation, a limited liability company, a business trust, a joint stock company, a trust, an unincorporated association, a joint venture, a Governmental Authority or any other entity of whatever nature.

“Plans”: The final plans and specifications for the construction of the Improvements on the Land to be delivered by Senior Borrower to Senior Administrative Agent and Administrative Agent, to be prepared by Borrower’s Architect and approved by Administrative Agent, Administrative Agent’s Engineer, Local Authority and Governmental Authority, and all amendments and modifications thereof made by approved Change Orders (Administrative Agent hereby confirms that, subject to any amendments and modifications thereto made in accordance with the terms hereof, it has approved the same).

“Pledge and Security Agreement”: That certain Pledge and Security Agreement, dated the date hereof, from Borrower to Administrative Agent in the principal amount of the Loan, and all accrued and unpaid interest thereon, encumbering the Collateral as a first lien and securing repayment of the Loan, and any future amendments, modifications or supplements thereto.

“Premises”: The Land and the Improvements to be constructed on the Land in accordance with the Plans, and the building materials, personal property, fixtures, furniture, equipment and other items described in the granting clause of the Senior Loan Mortgages.

“Prohibited Person” Any Person who (i) is on any U.S. Office of Foreign Asset Control or similar list, (ii) would, after giving effect to any transfer, cause Administrative Agent, any Lender, Borrower, Guarantor or the Loan to be in violation of the USA Patriot Act of 2001, 31 U.S.C. Section 5318, or any similar law, rule or regulation imposed by any Governmental Authority, (iii) does not satisfy Administrative Agent’s or a Lender’s then standard “know your customer” requirements, or (iv) has provided insufficient information to Administrative Agent as to satisfy the Administrative Agent’s or a Lender’s then standard “know your customer” requirements which failure shall not be cured within ten (10) business days after notice from Administrative Agent.

“Project Loan”: That certain loan in the maximum principal amount of $15,604,438.00 made by the Senior Lenders to Senior Borrower to finance other expenses of Senior Borrower pursuant to the Project Loan Agreement, which Project Loan is evidenced by the Project Loan Note and secured by, among other things, the Project Loan Mortgage.

“Project Loan Agreement”: That certain Project Loan Agreement by and between Senior Borrower and Senior Administrative Agent, dated the date hereof, and any future amendments, modifications or supplements thereto.

“Project Loan Assignment of Leases”: That certain Project Loan Assignment of Leases and Rents, dated the date hereof, from Senior Borrower to Senior Administrative Agent, and any future amendments, modifications or supplements thereto.

“Project Loan Costs”: Those costs described in Schedule B of the Project Loan Agreement which Senior Borrower represents to Senior Lender are not items constituting costs of the Improvements as contemplated by Section 22 of the New York Lien Law.

“Project Loan Mortgage”: That certain Project Loan Mortgage and Security Agreement, dated the date hereof, from Senior Borrower to Senior Administrative Agent in the principal amount of the Project Loan, encumbering the Premises as a third mortgage lien (subject only to the Acquisition Loan Mortgage and the Building Loan Mortgage) and securing repayment of the Project Loan, and any future amendments, modifications or supplements thereto.

“Project Loan Notes”: The Project Loan Notes, given by Senior Borrower to the Senior Lenders in the aggregate principal amount of the Project Loan, and any future amendments, modifications or supplements thereto.

“Request for Advance”: A statement of Borrower in the form of Exhibit A hereto, or such other form as Administrative Agent may approve, setting forth the advance sought, which shall constitute an affirmation that the representations and warranties of Article II remain true and correct as of the date thereof and will be so on the date of disbursement of the requested advance.

“Requirement” or “Local Requirement”: Any law, ordinance, order, rule or regulation of a Governmental Authority or a Local Authority, respectively, including, but not limited to, laws, ordinances, orders, rules or regulations with regard to zoning, building or environmental matters, the requirements of the FRESH Program and the requirements of the 421-a Tax Exemption Program.

“Security Agreement”: That certain Security Agreement, dated the date hereof, from Senior Borrower to Senior Administrative Agent, and any future amendments, modifications or supplements thereto.

“Senior Administrative Agent”: Valley National Bank, as administrative agent under the Senior Loan Agreements, and its successors and assigns.

“Senior Lender” shall mean the “Senior Lenders” (as defined in the Senior Loan Agreements), and any other Person that becomes a “Lender” under the Senior Loan Agreements in accordance therewith from time to time.

“Senior Loan”: Those certain loans in the maximum aggregate principal amount of up to $115,000,000.00 made by the Senior Lenders to Senior Borrower to finance other expenses of Senior Borrower pursuant to the (i) Credit Agreement, (ii) Acquisition Loan Agreement, which Acquisition Loan is evidenced by the Acquisition Loan Notes and secured by, among other things, the Acquisition Loan Mortgage, (iii) Building Loan Agreement, which Building Loan is evidenced by the Building Loan Notes and secured by, among other things, the Building Loan Mortgage and (iv) Project Loan Agreement, which Project Loan is evidenced by the Project Loan Notes and secured by, among other things, the Project Loan Mortgage.

“Senior Loan Advance” shall mean each “Loan Advance” as defined in, and with the meaning ascribed thereto, in the Senior Loan Agreements.

“Senior Loan Agreements” shall mean that certain (i) Credit Agreement, (ii) Building Loan Agreement and (iii) Project Loan Agreement, dated as of the date hereof, by and among Senior Administrative Agent, Senior Lender(s), and Senior Borrower, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Senior Loan Assignment of Leases”: That certain (i) Acquisition Loan Assignment of Leases, (ii) Building Loan Assignment of Leases and (iii) Project Loan Assignment of Leases, each dated the date hereof, from Senior Borrower to Senior Administrative Agent, and any future amendments, modifications or supplements thereto.

“Senior Loan Documents”: The Senior Loan Agreements, the Senior Loan Notes, the Senior Loan Mortgages, the Senior Loan Assignment of Leases, the Assignment of Contracts, the Assignment of Management, Maintenance, Service, Operating, Brokerage and Leasing Contracts, the Security Agreement and any other documents now or hereafter required to be executed or delivered in connection with the Senior Loan, the construction of the Improvements or pertaining to the Premises.

“Senior Loan Event of Default” shall mean an “Event of Default” under the Senior Loans and as defined in the Senior Loan Documents, which Administrative Agent is entitled to deem to having conclusively occurred upon receipt of any notice from Senior Administrative Agent or any Senior Lender of such occurrence without any inquiry into the validity thereof, absent manifest error.

“Senior Loan Notes” shall collectively mean each “Note” as defined in the Senior Loan Agreements.

“Senior Loan Mortgages” shall collectively mean each “Senior Mortgage” as defined in the Senior Loan Agreements.

“Special Purpose Bankruptcy Remote Entity” shall mean a limited liability company which at all times since its formation and at all times thereafter: (a) was and will be organized solely for the purpose of owning the Premises or Collateral, as applicable; (b) has not engaged and will not engage in any business unrelated to the ownership of the Premises or Collateral, as applicable; (c) has not had and will not have any assets other than those related to the Premises or Collateral, as applicable; (d) has not engaged, sought or consented to and will not engage in, seek or consent to any dissolution, winding up, liquidation, consolidation, merger, asset sale (except as expressly permitted by this Agreement), transfer of partnership or limited liability company interests or the like, or amendment of its limited partnership agreement, articles of incorporation, articles of organization, certificate of formation or operating agreement (as applicable); (e) has and will have articles of organization, a certificate of formation and/or an operating agreement, as applicable, providing that (i) such entity will dissolve only upon the bankruptcy of the managing member, (ii) the vote of a majority-in-interest of the remaining members is sufficient to continue the life of the limited liability company in the event of such bankruptcy of the managing member and (iii) if the vote of a majority-in-interest of the remaining members to continue the life of the limited liability company following the bankruptcy of the managing member is not obtained, the limited liability company may not liquidate the Premises or Collateral, as applicable without the consent of the Administrative Agent for as long as the Loan is outstanding; (f) has not, and without the unanimous consent of all of its members, will not, with respect to itself or to any other entity in which it has a direct or indirect legal or beneficial ownership interest (i) file a bankruptcy, insolvency or reorganization petition or otherwise institute insolvency proceedings or otherwise seek any relief under any laws relating to the relief from debts or the protection of debtors generally, (ii) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for such entity or for all or any portion of such entity’s properties, (iii) make any assignment for the benefit of such entity’s creditors or (iv) take any action that might cause such entity to become insolvent; (g) has remained and intends to remain solvent and has maintained and intends to maintain adequate capital in light of its contemplated business operations; (h) has not failed and will not fail to correct any known misunderstanding regarding the separate identity of such entity; (i) has maintained and will maintain its accounts, books and records separate from any other Person and will file its own tax returns; (j) has maintained and will maintain its books, records, resolutions and agreements as official records; (k) has not commingled and will not commingle its funds or assets with those of any other Person; (l) has held and will hold its assets in its own name; (m) has conducted and will conduct its business in its name, (n) has maintained and will maintain its financial statements, accounting records and other entity documents separate from any other Person; (o) has paid and will pay its own liabilities, including the salaries of its own employees, out of its own funds and assets; (p) has observed and will observe all partnership, corporate or limited liability company formalities, as applicable; (q) has maintained and will maintain an arm’s-length relationship with its Affiliates; (r) has not and will not have any indebtedness other than the Loan and any additional indebtedness permitted under this Agreement; (s) has not and will not assume or guarantee or become obligated for the debts of any other Person or hold out its credit as being available to satisfy the obligations of any other Person except for the Loan; (t) has not and will not acquire obligations or securities of its partners, members or shareholders; (u) has allocated and will allocate fairly and reasonably shared expenses, including shared office space, and uses separate stationery, invoices and checks; (v) except in connection with the Loan, has not pledged and will not pledge its assets for the benefit of any other Person; (w) has held itself out and identified itself and will hold itself out and identify itself as a separate and distinct entity under its own name and not as a division or part of any other Person; (x) 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; (y) has not made and will not make loans to any Person; (z) 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; (aa) has not entered into or been a party to, and will not enter into or be a party to, any transaction with its members or Affiliates except in the ordinary course of its business and on terms which are intrinsically fair and are no less favorable to it than would be obtained in a comparable arm’s-length transaction with an unrelated third party; (bb) has and will have no obligation to indemnify its officers or members, or has such an obligation that is fully subordinated to the Loan and will not constitute a claim against it if cash flow in excess of the amount required to pay the Loan is insufficient to pay such obligation; (cc) has and will have an express acknowledgment in its organizational documents that Administrative Agent and the Lenders are intended third-party beneficiaries of the “special purpose” provisions of such organizational documents; and (dd) will consider the interests of its creditors in connection with all corporate, partnership or limited liability company actions, as applicable.

“Subcontract”: Any contract (including the Architect’s Contract), subcontract, trade contract, material agreement or supply contract (other than the General Contract) entered into relating to the construction of the Improvements.

“Subcontractor”: Any contractor, subcontractor, trade contractor, materialmen, vendor or supply contractor party to a Subcontract.

“Title Insurer”: Old Republic National Title Insurance Company, acting through its agent Executive Abstract Group, Inc.

“Title Policy”: The certain title insurance policy or policies issued by the Title Insurer insuring Senior Administrative Agent and all advances under the Building Loan Agreement and/or the Project Loan Agreement as a second and third lien on the Premises, respectively, as approved by Administrative Agent.

“UCC Insurance Policy” shall be an Eagle 9 UCC Insurance Policy issued by First American Title Insurance Company in the amount of the Loan, together with all endorsements requested by Administrative Agent and otherwise in form and substances acceptable to Administrative Agent in all respects.

ARTICLE I
ADVANCES

Subject to the provisions of this Agreement, Administrative Agent and the Lenders will advance and Borrower, in accordance with its representations, warranties and agreements set forth in this Agreement, will accept the balance of the amount of the Loan, from time to time, as construction progresses not more than once a month as follows:

Section 1.1         Hard Costs

In the case of hard costs which are Building Loan Costs and to the extent same are included in the Budget (exclusive of items in the Budget designated as being funded from the Equity Contribution), Administrative Agent shall fund an amount which, when added by the portion thereof funded by Senior Lenders, shall be equal to (a) 90% (subject to Section 1.4 below) of the hard costs included in such Building Loan Costs, on a line item basis for the particular portion of the Improvements for which Loan proceeds are sought, multiplied by the percentage of completion then attained for each such line item category for said portion of the Improvements, as reasonably determined from time to time by Administrative Agent’s Engineer (in a manner consistent with the approval of Senior Administrative Agent), less amounts previously advanced for such hard costs. In making its determinations as provided above, it is understood and agreed that Administrative Agent’s Engineer will analyze the percentage of completion of the work in place (in a manner consistent with the review made by Senior Administrative Agent) on an individual line item basis by reference to the Budget and the trade cost breakdown last approved by Administrative Agent (exclusive of items in the Budget designated as being funded from the Equity Contribution), and/or (b) up to $500,000.00 required to be deposited under a Subcontract and no more than $1,500,000.00, in the aggregate, at any time. In addition, Administrative Agent or Administrative Agent’s Engineer may disapprove the amount or any portion thereof requested for any work if it shall reasonably deem such work not to be substantially in accordance with the Plans or inferior in quality in any material respect, or, if applicable, if such work is not acceptable to any Governmental Authority or Local Authority whose approval of such work is required. The percentage of completion of construction of the Improvements at any time shall be reasonably determined by Administrative Agent based on advice from Administrative Agent’s Engineer and, absent manifest error, Administrative Agent’s determination shall be final and binding on Borrower. Notwithstanding the foregoing, until such time as the Loan has been fully funded, any approved advance for hard costs hereunder shall be funded 50% by the Lender, and 50% by the Senior Lenders.

Section 1.2         Soft Costs

In the case of soft costs which are Building Loan Costs (but not for any Project Loan Costs), to the extent same are included in the Budget (and which are not designated in the Budget as being included in the Equity Contribution or Project Loan Costs), Administrative Agent and the Lenders will fund same not more than once a month to the extent they are included in the Budget and approved by Administrative Agent, provided same have been expended or are then due and payable and in either case are supported by invoices, bills or other documentation reasonably satisfactory to Administrative Agent (in a manner consistent with the requirements of Senior Administrative Agent), and provided further that advances under the contingency category of the Budget are subject to the approval of Administrative Agent, which approval shall not in any event be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, to the extent that the undisbursed amount under the contingency category of the Budget exceeds the amount required to be retained therein (which shall be determined on a percentage of completion basis), Borrower shall be entitled to reallocate such surplus to other Building Loan Costs, provided that the Budget is in balance after giving effect to such reallocation. Notwithstanding the foregoing, until such time as the Loan has been fully funded, any approved advance for Building Loan soft costs hereunder shall be funded 50% by the Lender and 50% by the Senior Lenders.

Section 1.3         General Advance Requirements

Requests for Advances of the Loan (until such time as the Loan shall be fully funded) shall be submitted to Administrative Agent and Administrative Agent’s Engineer no more than once each month. Each monthly request for an advance under the Loan shall be for an amount not less than $250,000.00 in the aggregate (including the portion to be funded by Senior Lenders), except that the requests for the final advances of the Loan may be for an amount less than $250,000.00 in the aggregate. Administrative Agent and the Lenders shall fund the Request for Advance within ten (10) business days after the date of its receipt of a complete Request for Advance, which shall occur not more than ninety (90) days after the Closing Date, unless Administrative Agent and/or Senior Administrative Agent has notified Borrower that, in its reasonable discretion, such Request for Advance does not satisfy the requirements set forth herein with respect to such Request for Advance. It shall be Borrower’s responsibility to contact Administrative Agent’s Engineer for the scheduling of site inspections prior to the submission of any requested advance hereunder.

At no time shall Administrative Agent or the Lenders be obligated (i) to advance to Borrower more than what Borrower is then required to fund to the party seeking payment or, in the case of reimbursement, to the party seeking reimbursement (subject to retainage), (ii) to make an advance if, Administrative Agent shall have reasonably determined, based on advice provided by Administrative Agent’s Engineer, that the undisbursed portion of the Loan, after taking into account the aggregate available amount of the Loan, the Senior Loan, any Deficiency Amount and any unadvanced portion of the Equity Contribution, if any, then held by Senior Administrative Agent (and after consideration of the interest which has accrued and which shall accrue on the Loan), shall be deemed by Administrative Agent to be insufficient to pay for the completion of the Improvements by the Completion Date and pay for all other hard and soft costs (including accrued interest), as set forth in the Budget, (iii) to advance Loan proceeds in an amount which, when considered together with the Equity Contribution and amounts to be funded by Senior Lenders, would exceed the individual line items set forth in the Budget (after taking into account any reallocation of monies in the Budget pursuant to the terms of Section 1.12 hereof) and the trade cost breakdown last approved by Administrative Agent, provided the Administrative Agent and the Lenders shall advance its share of the budgeted amount, (iv) except as provided in Section 1.11 below, to make an advance for materials not yet incorporated into the Improvements, or (v) to make an advance prior to the date that the Equity Contribution shall have been paid in full.

In no event shall Administrative Agent or the Lenders be obligated to fund any Request for Advance prior to Administrative Agent’s receipt and approval of evidence that all prior advances have been paid in full to the payees listed in the prior Requests for Advances. In no event shall Administrative Agent or the Lenders advance funds to pay a cost under this Agreement for which an advance has already been made under this Agreement.

Notwithstanding anything contained herein to the contrary, Administrative Agent and the Lenders shall have no obligation to make any advances hereunder:

(i)    if any monetary or material non monetary default or Event of Default shall then exist; or

(ii)    after the Completion Date, except with respect to work completed as of the Completion Date for which an advance has not yet been requested or funded, punchlist items, retainage and any undisbursed amounts in any interest reserve line item of the Budget; or

(iii)    if the first advance shall occur more than ninety (90) days after the date hereof, no advance shall occur on or after the date which is thirty six (36) months from the date of this Agreement; or

(iv)    if Administrative Agent shall have reasonably determined, based on advice provided by Administrative Agent’s Engineer, that the Improvements cannot be constructed and completed (sufficient to satisfy the 421-a Requirements and to obtain the 421-a Tax Benefits in accordance with the timelines and deadlines required to comply with the 421-a Tax Exemption Program) substantially in accordance with the Plans, lien free, and ready for occupancy, for the sums set forth in the Budget or, if more than the Budget, Borrower has funded or has committed to fund and thereafter funds such deficiency and the basis and conclusion for such determination to be provided to Borrower; or

(v)    with respect to any portion of the Improvements for which all construction permits and approvals then required have not yet been obtained from any necessary Local Authority or Governmental Authority; or

(vi)    with respect to any development or administrative fees or any Affiliate Fees, other than payments to the General Contractor pursuant to the General Contract or other fees specifically set forth in the Budget or otherwise approved by Administrative Agent.; or

(vii)    if the Senior Lender declines to make an advance under the Building Loan Agreement and/or the Project Loan Agreement in accordance with the terms thereof simultaneously with the advance being requested to be made by Administrative Agent hereunder;

In the event that any Subcontracts entered into after the date of this Agreement are for an amount in excess of the amount corresponding to the line item in the Budget appurtenant to such Subcontract, Administrative Agent and the Lenders shall have no obligation to make any further advances hereunder (unless Borrower shall be able to implement, and does implement, the cost-savings provisions of Section 1.12 so as to balance the Budget, which may include, without limitation, an allocation of the contingency line item pursuant to Section 1.12 (x) until Borrower shall have complied with the provisions of Section 8.4 in a manner consistent with the determinations made by the changes approved by Senior Administrative Agent.

Section 1.4         Retainage

Any and all amounts held back by Administrative Agent as retention for hard costs in accordance with the foregoing provisions of this Article I shall be advanced to Borrower, Senior Borrower, or, after the occurrence of an Event of Default, at Administrative Agent’s option, directly to the General Contractor and/or the applicable Subcontractors upon satisfaction of the conditions for the receipt of the final advance set forth in Article VII, Article VIII and Article IX hereof (including final lien waivers and issuance of a temporary certificate of occupancy, which shall occur not later than the Completion Date, and shall be in a manner which is sufficient to satisfy the 421-a Requirements and to obtain the 421-a Tax Benefits in accordance with the timelines and deadlines required to comply with the 421-a Tax Exemption Program). Notwithstanding the foregoing, prior to satisfaction of such conditions, Administrative Agent shall upon Borrower’s request (and provided that Senior Administrative Agent simultaneously approves such a release), release the retainage with respect to any particular trade, provided that Administrative Agent receives (i) a final lien waiver from the Subcontractor in question substantially in the form attached hereto as Exhibit B subject to the final payment thereof, (ii) the certificates of Administrative Agent’s Engineer and Borrower stating that the work to be performed by such Subcontractor has been 100% completed substantially in accordance with all the terms of its Subcontract, and (iii) no Event of Default, or event which after notice and/or the passage of time would constitute an Event of Default, has occurred hereunder and is continuing.

Section 1.5         Specific Advance Requirements

Except as set forth in Section 1.6 below, all advances are to be made by payment to the account of Senior Borrower established with Senior Administrative Agent with respect to the Project at the principal office of the Senior Administrative Agent or at such other place as Administrative Agent may designate. All advances paid to or for the account of Borrower by Administrative Agent and the Lenders shall be promptly paid by Borrower and/or Senior Borrower to the payees listed in the applicable Request for Advance and in no event longer than twenty (20) days after the date such advance is paid to Borrower. Requests for Advances shall be submitted to and received by Administrative Agent and Administrative Agent’s Engineer no less than ten (10) business days prior to the date of the requested advance, supported by the following items, each of which is to be delivered to Administrative Agent and Administrative Agent’s Engineer in connection with such request as a condition thereto:

A Request for Advance substantially in the form annexed hereto as Exhibit A, with all schedules thereto completed for such advance request;

A schedule, prepared by Borrower and/or Senior Borrower, identifying the Subcontractors to be paid from the proceeds of such advance, or setting forth the amount to be paid to the General Contractor, stating (A) the line item of the Budget to which the payments to each Subcontractor or the General Contractor is allocated, and (B) the total amounts of all such payments under each line item of the Budget included in such Request for Advance; From each Subcontractor and the General Contractor who is to be paid from the proceeds of such advance:

(i)    a copy of the payment request to Senior Borrower and/or Borrower from such Subcontractor or the General Contractor,

(ii)    copies of all invoices, if applicable from each Subcontractor or the General Contractor to be paid from such advance, and

(iii)    copies of each Subcontractor or the General Contractor, as the case may be, that (A) all work described in such payment request, or all materials supplied, as the case may be, has been performed or supplied, (B) any Subcontractor or the General Contractor whose work is covered by the requested advance has been paid for all work performed by such Subcontractor or the General Contractor, or shall be paid within thirty (30) days from the receipt of the amount in such payment request, and (C) lien waivers substantially in the form of Exhibit B hereto shall be provided to Senior Borrower from the General Contractor or such Subcontractor within twenty (20) days from the date that such payment is made to the General Contractor or such Subcontractor;

Copies of all Change Orders not previously delivered to Administrative Agent, the payment of which is included in such Request for Advance;

A lien waiver substantially in the form of Exhibit B hereto from the General Contractor and each Subcontractor in respect of a payment thereto from any prior advance of the Loan or any prior disbursement of the Equity Contribution;

If the advance or part thereof is for stored materials, a certification of Borrower:

(i)    describing the stored materials and setting forth the location of such stored materials; and

(ii)    confirming the lien and security interest in favor of Senior Administrative Agent in such stored materials pursuant to the Senior Loan Documents; and

Copies of all other documents required pursuant to Articles VI and VII.

Section 1.6         Direct Advances by Administrative Agent

Administrative Agent may, at its option (in a manner consistent with Senior Administrative Agent), advance all or any part of any particular requested advance either (i) to Borrower for disbursement in accordance with the Request for Advance, either directly or on behalf of Senior Borrower, or (ii) after the occurrence of an Event of Default, directly to the General Contractor and/or Subcontractor for all costs payable to such party, or (iii) after the occurrence of an Event of Default that continues, at Borrower’s expense, to the Title Insurer which shall pay said monies to the parties owed payment. The execution of this Agreement by Borrower shall, and hereby does, constitute an irrevocable direction to Administrative Agent to do so and no further authorization from Borrower shall be necessary to warrant such direct advances, and all such advances, together with interest which shall accrue thereon, compounded monthly, including interest on unpaid interest, in the manner set forth in the Note, shall be secured by the Pledge and Security Agreement, as fully as if made directly to Borrower, regardless of the disposition thereof by any party so paid. At any time and from time to time, Administrative Agent may advance to itself and the Lenders from Loan proceeds sums necessary to pay when due interest and expenses incurred in connection and in accordance with the Loan payable to Administrative Agent, including interest on unpaid interest, the Lenders, Administrative Agent’s Counsel or Administrative Agent’s Engineer, and the execution of this Agreement by Borrower shall, and hereby does, constitute an irrevocable direction to Administrative Agent to do so and no further authorization from Borrower shall be necessary to warrant such advances, and all such advances shall be secured by the Pledge and Security Agreement.

Section 1.7         Advances Not Approval of Work

The making of any advance by Administrative Agent and the Lenders shall not be deemed an acceptance or approval by Administrative Agent or the Lenders (for the benefit of Borrower or any third party) of the work done or Improvements constructed.

Section 1.8         Initial Closing Date

Administrative Agent shall determine the date and time of the Initial Closing which shall be held in escrow through the Title Insurer.

Section 1.9         Completion of the Improvements

Notwithstanding anything to the contrary set forth in this Agreement or in any Loan Document, it is expressly understood and agreed that the construction and completion of the Improvements must be substantially in accordance with (i) the Budget, (ii) the Plans, subject to Change Orders approved by Administrative Agent or otherwise permitted by the terms of this Agreement, (iii) all applicable laws, codes, ordinances, rules and regulations of each Governmental Authority or Local Authority having jurisdiction over the Premises, (iv) this Agreement, and (v) the 421-a Requirements, including, without limitation, timely completion of the Improvements (in a manner consistent with the 421-a Requirements and sufficient to obtain the 421-a Tax Benefits prior to the required deadlines to obtain the 421-a Tax Benefits) prior to the Completion Date, as same may be extended due to Force Majeure (subject to the limitations set forth herein).

Section 1.10         Equity Contribution; Limitation on Amount of Loan Advances Until Equity Contribution Paid in Full

Borrower shall, as a condition to Administrative Agent’s and the Lenders’ obligations hereunder, provide to Administrative Agent the information and documents described in Section 1.5(c) and (e) with respect to the line items in the Budget paid from the Equity Contribution to the extent such payments are made for hard costs in the Budget.

Notwithstanding anything contained herein to the contrary, Administrative Agent and the Lenders shall have no obligation to advance proceeds of the Loan, with respect to any costs and expenses paid, or to be paid, by Borrower as disbursements of the Equity Contribution.

Section 1.11         Stored Materials.

Administrative Agent agrees that, subject to Borrower’s compliance with all of the other requirements of this Agreement governing advances, Administrative Agent and the Lenders will advance proceeds of the Loan for materials to be stored on site in a secure area or such other location reasonably acceptable to Administrative Agent and Administrative Agent’s Engineer prior to their incorporation into the Improvements, provided that:

(i)    the costs of such stored materials are Building Loan Costs;

(ii)    no monetary or material non-monetary default or Event of Default shall then exist under this Agreement;

(iii)    Administrative Agent shall have reasonably confirmed that such stored materials are in fact the kinds and quantities of materials for which such advance has been requested and contemplated by the Budget and the Plans and Administrative Agent’s Engineer has inspected such stored materials and has approved the identity, quality and quantity of same;

(iv)    Administrative Agent has received executed conditional bills of sale or bills of lading (subject only to receipt of payment) satisfactory to it evidencing Senior Borrower’s unencumbered title in and to such stored materials;

(v)    Senior Administrative Agent has been granted a perfected first lien or security interest, satisfactory to Senior Administrative Agent in its sole (but reasonable) discretion, in such stored materials prior to or simultaneous with it making any such advance, all of which shall be satisfactory to Administrative Agent;

(vi)    such stored materials are fully insured in an amount and with an insurance company satisfactory to Administrative Agent, in its sole (but reasonable) discretion, under a policy containing a standard New York mortgagee endorsement in favor of Senior Administrative Agent;

(vii)    such stored materials are segregated, properly and securely stored and clearly marked so as to indicate the ownership of Senior Borrower and the security interest of Administrative Agent therein, as determined by Administrative Agent;

(viii)    Administrative Agent shall have received fully executed waivers of lien, substantially in the form attached hereto as Exhibit B, as to all prior payments to the contractor or supplier to whom such advances are to be made; and

(ix)    Except as otherwise approved by Administrative Agent, advances for such stored materials shall not exceed (x) the cost of such stored materials incurred or paid by Borrower to the producer or supplier of such materials without markup for administration or site management, allocation of overhead or other similar or overhead charges or fees, or (y) $3,000,000.00 in the aggregate at any one time.

Section 1.12         Cost Savings

In the event that any “cost savings” are realized for any of the Building Loan Costs included in the Budget by reason of (a) a line item having been completed without the expenditure of all amounts in such line item except for any retainage left in such line item, and all contractors, subcontractors, laborers and materialmen have been paid in full, subject to retainage, for work performed and materials provided in respect of said line item and Administrative Agent and/or Senior Administrative Agent has received lien waivers from such contractors, subcontractors, laborers and materialmen (other than for unpaid retainage), or (b) Subcontracts entered into after the date of this Agreement for an amount that is less than the amount corresponding to the line item in the Budget appurtenant to such Subcontract (each, a “Cost Savings”), Borrower shall have the right to reallocate such Cost Savings to the contingency line item set forth in the Budget or, subject to Administrative Agent’s consent, not to be unreasonably withheld, conditioned or delayed (in a manner consistent with the approval of Senior Administrative Agent), to other Building Loan Costs which are uncompleted, provided that (i) no reallocation of a hard cost line item to a soft cost line item shall be permitted (ii) such reallocation is not in contravention of the provisions of any applicable law, (iii) advances of reallocated amounts shall be accorded a lien of equal priority with all prior advances, (iv) the Budget is otherwise in balance, (v) cost savings in a hard cost line item may be reallocated only to other uncompleted hard costs, (vi) cost savings in a soft cost line item may be reallocated only to other uncompleted soft costs, (vii) in the case of a hard cost line item from which such reallocation is to be made, Administrative Agent shall have received the certification of Administrative Agent’s Engineer that such line item is complete, (viii) no monetary or material non-monetary default or Event of Default shall then exist hereunder, (ix) said savings are actual savings incurred by Senior Borrower and/or Borrower and are documented to the reasonable satisfaction of Administrative Agent, (x) any reallocation does not increase the total Budget, and (xi) any reallocation of amounts from any contingency or interest reserve line items in the Budget shall be at the sole but commercially reasonable discretion of Administrative Agent in conjunction (and reasonably consistent) with Senior Administrative Agent, except as set forth to the contrary in Section 1.2 with respect to contingency.

Section 1.13         Advances Subject to the Delivery of Subcontracts

The Administrative Agent and the Lenders’ obligation to make any hard cost Loan advance shall be subject to receipt of copies of fully executed Subcontracts for not less than 60% of the total hard costs of the Improvements.

Any Major Subcontract is subject to Administrative Agent’s review and approval as set forth in this Agreement, which shall not be unreasonably withheld, conditioned or delayed, and Borrower shall have delivered to Administrative Agent a duly executed letter from such Major Subcontractor substantially in the form attached as Exhibit D. In no event shall a hard cost advance be made for any work unless Administrative Agent has received copies of the applicable Subcontracts for which such hard cost advance is being requested.

Section 1.14          Advances Subject to the Closing and Pari Passu Funding of the Senior Loan

The Administrative Agent’s and the Lenders’ obligation to make any Loan advance shall be subject to the closing of the Senior Loan on the date hereof and the funding of the Senior Loan from time to time as follows, provided that in the event the Senior Borrower satisfies the conditions under the Senior Loan Documents and Senior Lender fails to fund all or any portion of the Senior Loan, Borrower shall have the right to fund such amounts as equity, which shall be deemed to satisfy the condition hereunder.

From and after the date hereof, all Requests for Advances for hard costs shall be funded fifty percent (50%) by the Administrative Agent and fifty percent (50%) by the Senior Lender until such time as the Loan has been fully disbursed.

Section 1.15         Closing Subject to Line of Credit, Liquidity and Net Worth Requirements

The Administrative Agent’s and the Lenders’ obligation to close the Loan shall be subject to confirmation that the Guarantor’s Net Worth and Liquidity is not less than the Required Net Worth and Required Liquidity (as those terms are defined in the Bad Acts Guaranty), with at least $7,500,000.00 of the $15,000,000.00 in Required Liquidity (a portion of which may be derived from proceeds drawn under the line of credit referenced in the Senior Loan Documents) being held in a manner consistent with the requirements of the Senior Loan Documents.

Section 1.16          Senior Loan Requirements.

To the extent any of the changes, allocations, reallocations, documentation, deliverables or conditions set forth in this Article I are also covenants, conditions, or restrictions in the Building Loan Agreement, and/or Project Loan Agreement, Borrower shall cause Senior Borrower to comply therewith, to the satisfaction of Senior Lenders.

ARTICLE II
REPRESENTATIONS AND WARRANTIES OF BORROWER

Borrower represents and warrants as of the date hereof that:

Section 2.1         Existence and Power

Borrower is a duly organized and validly existing limited liability company in good standing under the laws of the Delaware with full power and authority to consummate the transactions contemplated hereby, and all Loan Documents executed by Borrower are valid and binding obligations, enforceable in accordance with their terms. The Borrower is the sole member of Senior Borrower under the Operating Agreement of the Senior Borrower. The Borrower shall at all times since its formation been, and as of the date hereof is, a Special Purpose Bankruptcy Remote Entity.

Senior Borrower is a duly organized and validly existing limited liability company in good standing under the laws of the State of Delaware and New York with full power and authority to consummate the transactions contemplated hereby, and all Senior Loan Documents executed by Senior Borrower are valid and binding obligations, enforceable in accordance with their terms. The sole member of Senior Borrower is the Borrower under the Operating Agreement of the Senior Borrower. The Senior Borrower shall at all times since its formation been, and as of the date hereof is, a Special Purpose Bankruptcy Remote Entity.

Guarantor is a duly incorporated and validly existing corporation in good standing under the laws of the State of Maryland with full power and authority to consummate the transactions contemplated hereby, and all Loan Documents executed by such Guarantor are valid and binding obligations, enforceable in accordance with their terms. Guarantor holds a direct or indirect ownership interest in Borrower.

Section 2.2         Plans; Construction of the Improvements

The Plans have been approved, to the extent required by applicable law or any restrictive covenant, by any and all Governmental Authorities and Local Authorities claiming jurisdiction under applicable law or any restrictive covenant, by any and all Governmental Authorities and Local Authorities claiming jurisdiction over the Improvements, the beneficiary of any such covenant and any other parties required by Administrative Agent to approve same; all demolition and/or construction will comply with all statutes, rules and/or regulations of any Governmental Authority or Local Authority claiming jurisdiction over same; the Improvements will be constructed wholly within the perimeter of the Land in accordance with the Plans approved by Administrative Agent’s Engineer and in accordance with any restrictive covenants applicable thereto and in accordance with the 421-a Requirements (including the required timelines for completion of construction); Borrower is not aware of any structural defects in the Improvements (it being intended that the absence of structural defects shall be a pre-condition to Borrower’s receipt of an advance hereunder), no violation of any requirement of any Governmental Authority or Local Authority exists with respect thereto; the Improvements shall be completed (in accordance with all of the 421-a Requirements, sufficient for the Premises to obtain the 421-a Benefits by any required deadlines to fully obtain the 421-a Tax Benefits) by the Completion Date (subject to Force Majeure), which may not be extended without the prior written consent of Lender; and, the anticipated use thereof will comply with applicable zoning ordinances, regulations, and restrictive covenants affecting the Premises and all requirements for such use will be satisfied to the extent possible as of the relevant date.

Section 2.3         Financial Statements

All Financial Statements of Senior Borrower, Borrower and Guarantor heretofore delivered to Administrative Agent are true and correct in all material respects, and fairly present the respective financial conditions of the subjects thereof as of the respective dates thereof and no material adverse change has occurred in the financial conditions reflected therein since the respective dates thereof.

Section 2.4         Litigation

There are no actions, suits or proceedings pending, except as previously disclosed to Administrative Agent in writing, or to the knowledge of Borrower, threatened in writing against or affecting Senior Borrower, Borrower, the Collateral or the Premises, or involving the validity or enforceability of the Loan Documents or the priority of the lien thereof, at law or in equity, or before or by any Local or Governmental Authority, and, to Borrower’s knowledge, Senior Borrower is not in default or violation with respect to any material order, writ, injunction, decree or demand of any court or any Governmental or Local Authority, in respect of the Premises, it being understood that the existence of any action, suit or proceeding affecting Senior Borrower, Borrower, the Collateral or the Premises or involving the validity or enforceability of the Loan Documents or the priority of the lien thereof, while the Loan or any part thereof is outstanding, shall be a default hereunder.

Section 2.5         No Conflicting Agreements

Neither the execution or delivery nor the consummation of the transactions hereby contemplated or performance of this Agreement, the Note or any other Loan Documents will result in any breach of, or constitute a default under any other mortgage, security agreement, lease, bank loan or credit agreement, corporate charter, bylaws, partnership agreement, operating agreement or other agreement or instrument to which Borrower or Senior Borrower is a party or by which Borrower or Senior Borrower or any of its property may be bound or affected.

Section 2.6         Utilities

All utility services necessary for the construction of the Improvements and the operation thereof for their intended purpose are or will be available at the boundaries of the Premises and of the Land, including, without limitation, water supply, storm and sanitary sewer facilities, gas, electrical and telephone facilities.

Section 2.7         Requests for Advance

Each request for an advance, and the receipt of the funds requested thereby, shall have the effect stated in the definition of the term Request for Advance.

Section 2.8         No Liens

At the Initial Closing and as of each advance, Borrower and/or Senior Borrower will not have made and there will not be any contract or arrangement of any kind, the performance of which by the other party thereto would give rise to a lien on the Premises, other than in connection with the Senior Loan, unless Borrower and/or Senior Borrower fails to perform in timely fashion its obligations thereunder (Borrower hereby agreeing to perform all such obligations in timely fashion) subject, however, to the terms and conditions therein.

Section 2.9         Roads; Easements

All roads necessary for access to and full utilization of the Land have been completed and will provide access by way of roads dedicated to the public use. All necessary steps will be taken by Borrower and/or Senior Borrower to assure the complete construction and installation of the Improvements so that the same may be fully utilized by occupants thereof. All easements and rights of way necessary for the full utilization of the Improvements for their intended purposes have been acquired.

Section 2.10         Flood Zone; Filled-in Land

The Premises is not in a flood zone. No portion of the Premises consists of filled-in land.

Section 2.11         No Defaults

There is no default on the part of Borrower, or any other party under or with respect to this Agreement, the Note, or any other Loan Document, and no event has occurred and is continuing which with notice or the passage of time or both would constitute a default hereunder or thereunder.

Section 2.11         Use of Loan Advances; Other Indebtedness

Borrower will employ, or shall cause Senior Borrower to employ, the advances of the Loan to complete, or cause the completion of, the Improvements prior to the Completion Date, which may not be extended without the prior written consent of Lender, and it will not require and will not avail itself of any additional extension of credit for such purpose other than the Senior Loan.

Section 2.12         Usury

The Loan is not usurious and Borrower has no offsets, defenses or counterclaims with respect thereto or with respect to this Agreement or any other Loan Document.

Section 2.13         Land

(i) Senior Borrower is the fee owner of the Land and the existing improvements thereon; (ii) Senior Borrower’s fee interest in the Land and improvements is not subject to any reversionary interests or right of re-entry; and (iii) the Premises is not encumbered by any mortgages or other liens, other than the Acquisition Loan Mortgage, the Building Loan Mortgage and the Project Loan Mortgage.

Section 2.14         Budget

The anticipated construction and non-construction costs (including interest and other soft costs) relating to the construction of the Improvements do not exceed the amount of the Budget. All hard and soft costs of constructing the Improvements are included in Schedule B.

Section 2.15         Senior Loan

The aggregate maximum principal balance of the Senior Loan as of the date hereof is up to $115,000,000.00. No Senior Loan Default has occurred under the applicable Senior Loan Documents. Each and every representation and warranty of the Senior Borrower and/or any guarantor or indemnitor under any of the Senior Loan Documents made to the Senior Administrative Agent or any Senior Lender contained in any one or more of the Senior Loan Documents, is true, correct, complete and accurate in all material respects as of the date hereof and are hereby incorporated by reference.

Section 2.16         Pledge and Security Agreement

The Pledge and Security Agreement is and shall be a valid first priority lien on, and creates a first priority security interest in, the Collateral.

Section 2.17         Leases

The Premises or any part thereof are not subject to any leases, subleases, licenses or occupancy agreements, options or other rights in favor of third parties.

Section 2.18         Permits and Approvals

All zoning, planning and other approvals, authorizations and/or permits required under any Local Requirement for the construction of the Improvements and the contemplated uses thereof have been or will be obtained, are or will be in full force and effect and Borrower and/or Senior Borrower has not received any notice of revocation, termination or default thereof. All additional approvals, authorizations and/or permits required to be obtained in the future under any Requirement or Local Requirement for the construction and occupancy of any portion of the Improvements, can and will be obtained in the ordinary course of business prior to the commencement of any construction of such portion of the Improvements (and during the course of such construction Borrower will cause the same to remain in full force and effect, and the issuance of the same is ministerial and not discretionary on the part of the appropriate issuing authority). Borrower will file all applications and supporting documentation, take all actions, pay all fees, provide all notices and request all approvals that are necessary in order to obtain all building and alterations permits and approvals for the construction of the Improvements in a timely manner so as to avoid any delay in the construction of any portion of the Improvements. Borrower has no knowledge of any facts which could cause any approvals, authorizations and/or permits not obtained but required under any Requirement or Local Requirement for the construction or occupancy of any portion of the Improvements not to be issued and/or obtained in a timely manner.

Section 2.19          Eminent Domain

Borrower and/or Senior Borrower has not received any notice of, and is not aware of, any actual, proposed or threatened exercise of the power of eminent domain or other taking by any governmental or quasi-governmental body or agency of all or any portion of the Premises or any interest therein.

Section 2.20         Casualty

The Premises has not suffered any casualty or loss.

Section 2.21         Encroachments

There are no encroachments on the Land except as may be set forth in the Title Policy and the Improvements do not and will not encroach upon any adjoining land or adjoining street.

Section 2.22         421-a Requirements; Declaration

Borrower shall comply, or shall cause Senior Borrower to comply, with the obligations of the MIH Declaration and the 421-a Requirements, including, without limitation, by causing the Improvements to be constructed and completed prior to the Completion Date (subject to Force Majeure, but which may not otherwise be extended without Administrative Agent’s written consent) in accordance with the 421-a Requirements, and in all respects shall cause construction to be completed within the time frames and parameters required to cause the 421-a Tax Benefits to be obtained. In connection therewith, Senior Borrower shall cause the Improvements to be built in compliance with, and as more particularly set forth in, the Senior Loan Documents, in a manner sufficient for the Premises to receive the full 421-a Tax Benefits in accordance with the timelines and deadlines required to comply with the 421-a Tax Exemption Program.

ARTICLE III
COVENANTS OF BORROWER

Borrower hereby covenants with Administrative Agent and each Lender as follows:

Section 3.1         Indebtedness

Borrower shall not, and Borrower shall cause Senior Borrower to not, directly or indirectly, create, incur, assume or suffer to exist any liability for Indebtedness (including subordinated Indebtedness), whether secured or unsecured, except Indebtedness due with respect to the Loan, the Acquisition Loan, the Building Loan and the Project Loan, other than trade payables incurred in the ordinary course of business that do not exceed, in the aggregate, two percent (2%) of aggregate amount of the Loan, the Acquisition Loan, the Building Loan and the Project Loan;

Section 3.2         Easements and Other Agreements

All easements, cross easements or other agreements affecting the Premises (it being understood that Borrower will cause Senior Borrower to procure such of the foregoing items as Administrative Agent may deem necessary) shall be submitted to Administrative Agent for approval prior to the execution thereof by Borrower, accompanied by a drawing or survey showing the approximate location thereof;

Section 3.3         Compliance with Requirements

Borrower will comply, or shall cause Senior Borrower to comply, promptly with any Requirement or Local Requirement and furnish Administrative Agent, on demand, proof of compliance satisfactory in all respects to Administrative Agent;

Section 3.4         Inspection of Premises; Cooperation

Borrower will, or will cause Senior Borrower to, permit Senior Administrative Agent, Administrative Agent, Administrative Agent’s Engineer, or their respective representatives, to enter upon the Premises, at reasonable times and upon reasonable prior notice, to inspect the Improvements and all materials to be used in the construction thereof and to examine all detailed plans and shop drawings which are or may be kept at the construction site and will cooperate, and cause the General Contractor to cooperate with Administrative Agent’s Engineer to enable it to perform its functions hereunder.

Section 3.5         Payment of Fees, Expenses and Taxes

Borrower agrees to pay (at the Initial Closing and thereafter within five (5) business days’ written notice of being due) Administrative Agent’s Counsel Fees and Administrative Agent’s Engineer Fees, all costs and expenses required to satisfy the conditions of this Agreement, and all other reasonable out-of-pocket costs, fees and expenses of whatsoever nature incurred by Administrative Agent in connection with the negotiation, processing, funding, consummation, execution, administration, assignment, repayment and collection of the Loan, the Acquisition Loan and the Project Loan. Without limiting the generality of the foregoing, Borrower agrees to pay, or to cause Senior Borrower to pay:

(i)         all taxes and recording expenses, including, without limitation, stamp taxes, if any, and the costs of title searches, title insurance and survey charges;

(ii)         Administrative Agent’s Counsel Fees, Administrative Agent’s Engineer Fees, Administrative Agent’s appraisal fees and Administrative Agent’s environmental audit, insurance consultant and engineering fees.

To the extent Administrative Agent, after the Initial Closing, reasonably deems it reasonably necessary to employ counsel for whatever purpose relative to the Loan, the reasonable fees and expenses of such counsel shall be borne by Borrower. Until the Loan is paid in full, any fees and expenses incurred by Administrative Agent or the Lenders are to be paid promptly by Borrower. Borrower agrees to indemnify and hold Administrative Agent and the Lenders harmless with respect to all reasonable fees and out-of-pocket expenses actually incurred by Administrative Agent or the Lenders in connection with this Agreement or the Loan, which Borrower is otherwise obligated to pay under this Agreement or any other Loan Document; and

Borrower agrees to indemnify, defend and hold Administrative Agent and the Lenders harmless from any and all tax claims made against Administrative Agent and the Lenders relative to the Loan.

Section 3.6         Construction of the Premises

Borrower and/or Senior Borrower has commenced construction of the Improvements and will continue to cause the construction of the Improvements to be prosecuted with diligence so as to complete the same in accordance with the Plans and obtain temporary or permanent certificates of occupancy, or such other permits or approvals that under local law will permit the operation of the Improvements, and in compliance with the MIH Declaration and the 421-a Requirements (including any required deadlines to fully obtain the 421-a Tax Benefits), for the uses contemplated by the Plans, on or before the Completion Date (subject to Force Majeure), free and clear of liens or claims for materials supplied and for labor or services performed in connection with the construction of the Improvements. Borrower shall cause Senior Borrower not to undertake any particular aspect of work in connection with the construction of the Improvements until Borrower and/or Senior Borrower has obtained all applicable permits, licenses and approvals required under any Requirement or Local Requirement for such work. In no event will Borrower and/or Senior Borrower permit or suffer any party, including Subcontractors, to commence proceedings to enforce any lien unless and to the extent that said lien is fully bonded, provided that such bonding has the effect of removing any such liens or claims; Section 3.7 Satisfaction of Loan Document Conditions

Borrower will cause all conditions hereof, the Note, the Pledge and Security Agreement and all other Loan Documents on Borrower’s part to be performed or to be satisfied in all material respects, and Borrower shall cause Senior Borrower to comply with the requirements of the Senior Loan Documents in all respects. Borrower will promptly (upon transmission or receipt) deliver to Administrative Agent copies of all notices and correspondence with respect to the aforementioned documents;

Section 3.8         Section 13 of the Lien Law

Pursuant to Section 13 of the Lien Law, Borrower will receive the advances to be made hereunder and will hold the right to receive the same as a trust fund for the purpose of paying the costs of construction of the Improvements, and it will apply, or to cause Senior Borrower to apply, the same first to such payment and to no other purpose;

Section 3.9         Brokers

Borrower agrees to indemnify Administrative Agent and the Lenders from claims of brokers and any other third parties arising by reason of the execution hereof or the consummation of the transactions contemplated hereby or in connection with the leasing of the Premises or any part thereof, and Borrower agrees to indemnify, defend and hold Administrative Agent and the Lenders harmless from any and all claims relative to the Premises, including, without limitation, contract, personal injury or property damage claims and claims for brokerage commissions; Borrower hereby represents that Borrower has not dealt with any broker with respect to the Loan;

Section 3.10         Title Documentation

Borrower will deliver to Administrative Agent, on written demand, (to the extent received), any contracts, bills of sale, statements, receipted vouchers or agreements under which Borrower claims title to any materials, fixtures or articles incorporated in the Improvements, or subject to the lien of the Senior Loan Mortgages;

Section 3.11         Correction of Defects

Section 3.12         Change Orders

Borrower will, upon written demand of Administrative Agent based upon the reasonable advice of Administrative Agent’s Engineer, correct, or cause Senior Borrower to correct, any structural defect in the Improvements or any departure from the Plans; it being understood that (a) the advance of any Loan proceeds shall not constitute a waiver of Administrative Agent’s right to require compliance with this covenant with respect to any such defects or departures from the Plans not theretofore discovered by or called to the attention of Administrative Agent’s Engineer; and (b) neither Administrative Agent nor Administrative Agent’s Engineer nor the Lenders shall have any affirmative duty to Borrower, Senior Borrower or any third party to inspect for said defects or to call them to the attention of Borrower or anyone else; Borrower will not, without Administrative Agent’s prior written approval (which approval shall not be unreasonably withheld, delayed or conditioned and shall be reasonably consistent with any approval by Senior Administrative Agent), approve, or allow Senior Borrower to approve, any Change Order or permit the performance of any work pursuant to any Change Order, which exceeds $500,000.00 for any one Change Order (whether constituting an add or deduct) or $2,500,000.00 in the aggregate for all Change Orders (provided that such amounts shall be increased dollar for dollar to the extent of amounts saved by Borrower in connection with any Cost Savings, but not to exceed $750,000.00 for any one Change Order or $3,000,000.00 in the aggregate), or regardless of the amount, which adversely affects the quality of the Improvements, or which adversely affects the quality of any of the materials or equipment to be used in the Improvements, or which increases or decreases the total number of residential apartment units in the Improvements or the square footage of the Improvements or which shall or might violate the MIH Declaration or the 421-a Requirements. All Change Orders which must be approved by Administrative Agent must be approved in writing by Administrative Agent and Administrative Agent’s Engineer and any other party deemed necessary by Administrative Agent. Borrower will not approve or permit any changes which are deemed by Administrative Agent, on the advice of Administrative Agent’s Engineer, to affect adversely the structural integrity of the Improvements. In any event, Borrower will promptly deliver a copy of all Change Orders to Administrative Agent’s Engineer;

Section 3.13         General Contractor Covenants

Borrower will require covenants from the General Contractor to the same effect as the covenants made by Borrower in Section 3.12 and furthermore will cause Senior Borrower to provide in the General Contract or otherwise that the General Contractor will, upon request, deliver to Administrative Agent the names of all persons with whom the General Contractor has contracted or intends to contract, for the construction of the Improvements or for the furnishing of labor or materials therefor. Administrative Agent hereby acknowledges and agrees that the General Contract, which has been approved by Administrative Agent, satisfies the requirements of this Section 3.13;

Section 3.14         Restrictive Covenants

Borrower will comply, or shall cause Senior Borrower to comply, in all material respects with all restrictive covenants affecting the Premises;

Section 3.15         Advances By Administrative Agent

Administrative Agent may apply amounts due hereunder to the satisfaction of the conditions hereof and may advance Loan proceeds for the payment of interest (when due) on the Note and/or may, upon prior notice to Borrower, cure any Event of Default hereunder or under any other Loan Document; Borrower will not execute the, or allow Senior Borrower to execute the General Contract, any Major Subcontract or make any material amendment thereto without the prior written consent of Administrative Agent, such consent not to be unreasonably withheld, conditioned or delayed and shall be reasonably consistent with any approval by Senior Administrative Agent;

Section 3.16         Contracts

Borrower will deliver to Administrative Agent a copy of the General Contract and copies of all Major Subcontracts and will obtain from the General Contractor a letter in the form of Exhibit C and from all Major Subcontractors a letter substantially in the form of Exhibit D; and

Borrower will not, and will not allow Senior Borrower to, amend or modify, any material respect, or terminate, the General Contract or the Architect’s Contract, or permit same to lapse or be terminated, without the prior written consent of Administrative Agent;

Section 3.17         Notices Affecting the Premises

Borrower will transmit to Administrative Agent, immediately upon receipt thereof, any communication affecting Administrative Agent’s security or materially affecting the financial condition of Borrower and/or Senior Borrower and will promptly respond fully to any inquiry of Administrative Agent made with respect thereto;

Section 3.18         Maintaining the Premises in Good Repair

Borrower shall cause the Senior Borrower to maintain the Premises and the Improvements in good repair and safe condition at all times and Borrower hereby indemnifies and agrees to hold Administrative Agent and the Lenders harmless from any and all claims relative to repair and safety of the Premises or the Improvements;

Section 3.19         Insurance

Borrower will, at all times, cause Senior Borrower to maintain insurance on the Premises and the Improvements in such amounts, with such companies and against such risks (including, without limitation, fire with extended coverage, builder’s risk, flood and liability) as is set forth in the Senior Loan Mortgages or as Administrative Agent may direct that are customary for similar Premises and Improvements;

Section 3.20         Permits, Licenses and Authorizations

Borrower will cause Senior Borrower to keep all permits, licenses, approvals and authorizations pertaining to the Improvements and the construction thereof in full force and effect; Section 3.21 Agreements Affecting the Premises

Borrower shall not, and shall not allow Senior Borrower to, enter into any brokerage, leasing, subleasing, management, parking, maintenance, service, operating or consulting agreements which (i) provide for annual payments in the aggregate in excess of $750,000.00, and (ii) is not terminable on thirty (30) days’ notice, without the prior written consent of Administrative Agent, such consent not to be unreasonably withheld, conditioned or delayed (and shall be consistent with any approval requirements of the Senior Administrative Agent) and if any such agreement shall not provide that such agreement may be cancelled without cause on thirty (30) days’ notice, such agreement shall provide, or the parties to such agreement shall enter into a separate agreement with Administrative Agent which shall provide, that upon the occurrence of an Event of Default and Administrative Agent’s succeeding to the ownership or control of the Collateral, such agreement shall terminate upon Administrative Agent’s request at no cost to Administrative Agent;

Section 3.22         Transactions with Affiliates; Distributions

Borrower shall not (a) enter into or become a party to any agreement, transaction or arrangement with Guarantor or any Affiliate of Borrower or any Guarantor, without the prior written consent of Administrative Agent in each instance, (b) make any payment to Borrower, any Guarantor or any Affiliate of Borrower or any Guarantor, or (c) distribute, or allow Senior Borrower to distribute, any profits, dividends, earnings, distributions or other payments to any member of Borrower or any Person having a direct or indirect ownership interest in the Borrower or the Senior Borrower.

Section 3.23         Funding and Operating Accounts

Borrower shall cause Senior Borrower to maintain funding accounts with the Senior Administrative Agent until the Loan is fully funded. Borrower shall cause Senior Borrower to maintain the operating account for the Premises and all of Senior Borrower’s other accounts (which may be interest bearing) at a branch of Senior Administrative Agent at all times during the term of the Loan.

Section 3.24         [Intentionally Omitted].

Section 3.25         Subdivision

Borrower shall not allow Senior Borrower to file any application, or seek any subdivision approval for the Land, or file or record any subdivision or parcel map, or accept any subdivision approval, without the prior written consent of Administrative Agent;

Section 3.26         FRESH Benefits

Borrower shall cause Senior Borrower at all times to (i) fully and timely perform and comply in all material respects with all of its obligations under, and take all steps necessary to obtain and retain the benefits of, the FRESH Program for the Premises, (ii)  once the FRESH Benefits have been obtained, cause the FRESH Benefits to remain in good standing and in full force and effect, (iii) not enter into or agree to any amendment, modification, termination or surrender of all or any portion of the FRESH Benefits without the prior written consent of Administrative Agent in each instance, (iv) promptly provide Administrative Agent with copies of all material notices given or received by Senior Borrower and/or Borrower to or from the City Planning Commission, the Department of City Planning and/or any other Governmental Authority or Local Authority having jurisdiction over or involvement with the FRESH Program, (v) use commercially reasonable efforts to obtain the FRESH Benefits for the Premises on the earliest possible date that Senior Borrower and/or Borrower is entitled to do so, and (vi) not cause or permit anything to be done which could or may cause the termination, reduction or delay of or adversely affect the FRESH Benefits or the eligibility of the Premises for the FRESH Benefits.  Any regulatory agreement, restrictive declaration or other restriction or agreement affecting the Premises that is required to be executed in connection with the FRESH Benefits shall be subject to the review and reasonable approval of Administrative Agent.  Once executed, Senior Borrower and/or Borrower shall comply in all material respects with the terms and conditions of any applicable regulatory agreement, restrictive declaration or other restriction or agreement affecting the Premises required by the FRESH Program.

Section 3.27         Changes in Structure and Ownership of Borrower

Neither the structure of Borrower or the Senior Borrower, nor the direct or indirect ownership of Borrower or the Senior Borrower, may be changed from that existing on the date hereof (other than in connection with a Permitted Transfer). No preferred equity transaction may be entered to by Borrower, Senior Borrower or any of the direct or indirect holders of the limited liability company interests in Borrower or Senior Borrower without Administrative Agent’s prior written consent, which may be granted or withheld in Administrative Agent’s sole and absolute discretion.

Section 3.28         Commitment Fee and Administration Fee

(a)         On the date hereof, Borrower shall pay to Administrative Agent the Commitment Fee in full; and

(b)         On the date hereof and on each anniversary of the date hereof until the Loan has been repaid in full, Borrower shall pay to Administrative Agent in advance the non-refundable Administration Fee. If the Administrative Fee shall still be applicable on the date Borrower shall exercise each Extension Option, the Administrative Fee shall be payable in full simultaneously with each such exercise by Borrower.

Section 3.29         Accrued and Accruing Interest

Interest on the Loan shall accrue at the applicable interest rate set forth in the Note on the principal amount of the Loan, and all accrued and unpaid interest thereon, compounded monthly. There shall be interest on unpaid interest in accordance with applicable Legal Requirements. In no event shall Borrower allow the amount of accrued and unpaid interest to exceed $3,000,000.00 in the aggregate, without Lender’s consent. If the  accrued interest shall exceed $3,000,000.00 at any time prior to the Maturity Date, by virtue of actual or anticipated increases in the applicable rate of interest under the Note for any other reason, Borrower shall establish an Interest Reserve Account (as defined in the Note) with Administrative Agent, and shall deposit therein funds determined by Administrative Agent to be sufficient to pay all interest which shall accrue on the Loan through the Maturity Date, after considering the Property’s NOI (as defined in the Note). 

Section 3.30         UCC Insurance Policy

Borrower shall cause to be delivered to Administrative Agent a paid UCC Insurance Policy in the amount of the Loan, and all accrued and accruing interest on the Loan, in the manner set forth in the Note, together with all endorsements requested by Administrative Agent and otherwise in form and substances acceptable to Administrative Agent in all respects.

Section 3.31         Minimum Interest; Exit Fee

Borrower agrees that in all events and under all circumstances, Borrower shall be obligated to pay to Administrative Agent the Minimum Interest and the Exit Fee, which shall be payable upon (a) any partial prepayment of the Loan by Borrower and (b) the earlier to occur of (i) the payment by Borrower of the Loan in full, or (ii) the Maturity Date (or any acceleration of the Loan following an Event of Default). In furtherance of the foregoing, Borrower acknowledges and agrees that Lender shall have no obligation to accept any payment of the Loan unless and until Borrower shall have also paid the Minimum Interest and the Exit Fee, and Lender shall have no obligation to release any Loan Document upon payment of the Indebtedness unless and until Lender shall have received the entire Minimum Interest and the Exit Fee. All Minimum Interest and the Exit Fee hereunder shall be deemed to be earned by Lender upon the funding of the Loan.

3.32         421-a Tax Exemption Program

The residential portion of the Premises and a portion of the commercial portion of the Premises is eligible for and, if completed in accordance with the Plans, will receive, 421-a Tax Benefits (i.e., a partial tax exemption up to three (3) years during the construction of the Improvements and a thirty five (35) year post-construction partial tax exemption). Senior Borrower has not received any notice from the New York City Department of Housing Preservation and Development or any other Governmental Authority or Local Authority nor is Senior Borrower and Borrower aware of any facts which could cause a retraction, reduction or termination of the 421-a Tax Benefits. The 421-a Tax Benefits run with the Land and inhere to the benefit of the Land such that a transfer or forfeiture of title would not adversely affect the applicability and availability of the 421-a Tax Benefits for the benefit of the Premises. The required date by which the Improvements must be completed to comply with the 421-a Requirements and to obtain all of the 421-a Tax Benefits is later than the Completion Date.

Borrower shall cause Senior Borrower to at all times (i) fully and timely perform and comply with all of its obligations under, and take all steps necessary to obtain and retain the benefits of, the 421-a Tax Exemption Program for the residential portion of the Premises and a portion of the commercial portion of the Premises, (ii) once the 421-a Tax Benefits have been obtained, cause the 421-a Tax Benefits to remain in good standing and in full force and effect, (iii) not enter into or agree to any amendment, modification, termination or surrender of all or any portion of the 421-a Tax Benefits without the prior written consent of Senior Lender and/or Lender in each instance, (iv) promptly provide Senior Lender and/or Lender with copies of all material notices given or received by Senior Borrower and/or Borrower to or from the New York City Department of Housing Preservation and Development and any other Governmental Authority or Local Authority having jurisdiction over or involvement with the 421-a Tax Exemption Program, (v) use commercially reasonable and diligent efforts to obtain the 421-a Tax Benefits for the residential portion of the Premises and a portion of the commercial portion of the Premises in accordance with the applicable deadlines in order to obtain the same and (vi) not cause or permit anything to be done which could or may cause the termination, reduction or delay of or adversely affect the 421-a Tax Benefits or the eligibility of the Premises for the 421-a Tax Benefits. Without limiting the foregoing, not later than the last day on which the same may be filed in order to qualify the Premises for the 421-a Tax Benefits, Senior Borrower and/or Borrower shall file with the New York City Department of Housing Preservation and Development an application for a Certificate of Eligibility, in form and substance satisfactory to Senior Lender and/or Lender, together with all fees and other documentation required and take from time to time all other action necessary or required in connection with such application, together with all filing fees and other required documentation, including, without limitation, the certification of final construction costs, and take from time to time all other action necessary or required in connection with the issuance of the Final Certificate of Eligibility. Further, prior to the earlier of (i) the Completion Date or (ii) the last day by which same must be filed to comply with the 421-a Requirements, Borrower shall file or cause Senior Borrower to file, all required proof that the Improvements have been completed in compliance with the 421-a Requirements sufficient for the 421-a Tax Benefits to be issued for the Premises. Any regulatory agreement or restrictive declaration executed in connection with the 421-a Tax Benefits shall be subject to the review and approval of Senior Lender and/or Lender. Once executed, Borrower shall cause Senior Borrower to comply in all respects with the terms and conditions of any such regulatory agreement or restrictive declaration.

Section 3.33         Mandatory Inclusionary Housing Restrictive Declaration.

The Senior Borrower has entered into that certain Mandatory Inclusionary Housing Restrictive Declaration dated as of August 10, 2023 to be recorded in the Kings County Register’s Office (the “MIH Declaration”). Borrower shall cause Senior Borrower to at all times (i) fully and timely perform and comply with all of its obligations under the MIH Declaration, (ii) not enter into or agree to any amendment, or modification in any material respect or termination of the MIH Declaration without the prior written consent of Senior Lender in each instance, (iii) promptly provide Senior Lender with copies of all notices given or received by Senior Borrower to or from any Governmental Authority or Local Authority having jurisdiction over or involvement with the Mandatory Inclusionary Housing Program, and (iv) not cause or permit anything to be done which could or may cause the a default under the MIH Declaration or the Mandatory Inclusionary Housing Program.

ARTICLE IV
EVENTS OF DEFAULT

Section 4.1         Defaults; Events of Defaults

The following defaults shall, after the giving of notice and/or the passage of time as provided in Section 4.2 below, each constitute an “Event of Default” hereunder:

(a)    if an Event of Default shall occur under the Pledge and Security Agreement or the Note, including, without limitation, if Borrower shall fail to pay any interest under the Note when due;

(b)    if Borrower fails to comply with or there shall be a default by Borrower under any of the terms, covenants or conditions of this Agreement, or any other Loan Document, or if any of the same shall cease to be in full force;

(c)    if at any time any representation or warranty made by Borrower to Administrative Agent in this Agreement or in any other Loan Document or in any certificate or statement delivered in connection herewith shall be incorrect or misleading as and when made to an extent deemed by Administrative Agent, in its sole but, reasonable judgment and discretion, to be material;

(d)    if (i) Administrative Agent shall have reasonably and conclusively determined, based on advice provided by Administrative Agent’s Engineer, that the Improvements cannot be completed lien free in accordance with the Plans (A) on or before the Completion Date (subject to Force Majeure) and (B) for the sums set forth in the Budget after taking into account any Deficiency Amount then held by Administrative Agent or the Senior Lenders or to which Borrower has committed to fund in accordance with Section 8.4 of the Senior Loan Agreement) unless Borrower deposits sufficient funds in an account at Administrative Agent within twenty (20) days of written demand therefor, to satisfy its obligations pursuant to this clause (B), or (ii) for any reason the General Contract or the Architect’s Contract is materially amended or modified or terminated, or permitted to lapse or be terminated, without the prior written consent of Administrative Agent or (iii) any Change Order not allowed hereunder or not approved in writing by Administrative Agent shall be effected;

(e)    if (i) Administrative Agent or its representatives or Administrative Agent’s Engineer not be permitted, at all reasonable times and after reasonable prior notice, to enter upon the Premises, inspect the Improvements and the construction thereof and all materials, fixtures and articles used or to be used in connection therewith, and to examine all detailed plans, shop drawings and specifications which relate to the Improvements, or (ii) Borrower shall fail to furnish to Administrative Agent or its authorized representative, when requested, copies of such plans, drawings and specifications, or copies of any invoices, subcontracts, or bills of sale relating to the construction or equipping of the Premises or if Borrower fails to obtain Administrative Agent’s approval of any change of the Plans to the extent required hereunder;

(f)    if any of the materials, fixtures or articles used in the construction of the Improvements or the appurtenances thereto, or to be used in the operation thereof, are not in accordance with the Plans in all material respects or as otherwise approved by Administrative Agent’s Engineer and Administrative Agent;

(g)    if Borrower or Senior Borrower executes any conditional bill of sale, chattel mortgage or other security instrument covering any materials, fixtures or articles intended to be incorporated in the Improvements or the appurtenances thereto, or covering articles of personal property placed in the Improvements, or files a financing statement publishing notice of such security instrument, or, if any of such materials, fixtures or articles are not purchased so that the ownership thereof will vest unconditionally in Senior Borrower and/or Borrower, free from encumbrances, on delivery at the Premises, or if Borrower does not produce to Administrative Agent upon demand the contracts, bills of sale, statements, receipted vouchers or agreements under which Borrower claims title to such materials, fixtures and articles;

(h)    if Borrower does not disclose to Administrative Agent and Administrative Agent’s Engineer, within ten (10) business days of written demand, the names of all persons with whom Senior Borrower contracted for the construction of the Improvements or for the furnishing of labor and materials therefor;

(i)    if the Improvements are not completed by the Completion Date, as same may be extended for Force Majeure (but subject to the limitations set forth herein) or if construction of the Improvements ceases for a period in excess of forty five (45) consecutive days (subject to Force Majeure);

(j)    if a lien for the performance of work or the supply of materials is filed against the Premises and remain unsatisfied or unbonded for a period of forty five (45) days after the date of filing of such lien, provided that the Premises are not subject within the aforesaid forty five (45) day period to a levy, execution, attachment or sequestration, it being understood and agreed that if the lien is unbonded or unsatisfied at the time of any Request for Advance, Administrative Agent and the Lenders shall not be obligated to make any advance of the Loan, the Acquisition Loan, the Building Loan or the Project Loan, unless the Title Insurer shall insure over the existence of such lien pursuant to an endorsement to the title insurance policies insuring the Acquisition Loan Mortgage, the Building Loan Mortgage and the Project Loan Mortgage in form and substance satisfactory to Administrative Agent;

(k)    if at any time after the Initial Closing any commitment or undertaking of Borrower and/or the Senior Borrower in connection with the Initial Closing or any requirement with respect thereto shall be breached or unfulfilled or if any requirement for initial funding shall, at any time, thereafter not be fulfilled on a continuing basis;

(l)    if any action or proceeding shall be pending before any court, quasi-judicial body or administrative agency relative to Borrower, the Senior Borrower, the Collateral or the Premises or any part thereof or relating to the making of or advances under the Senior Loan and/or the Loan or the validity or enforceability of the Loan Documents or the priority of lien thereof, or if a lis pendens shall have been filed against the Premises or any part thereof, which is not bonded or dismissed within forty five (45) days;

(m)    if any survey shows that the Improvements encroach upon the street or upon adjoining property or any adjoining structure encroaches on the Premises (unless such encroachment is affirmatively insured by the Title Insurer in a manner reasonably satisfactory to Administrative Agent);

(n)    if Borrower is unable to satisfy any condition of its right to the receipt of an advance of the Loan for a period in excess of forty five (45) days (subject to Force Majeure);

(o)    if the Premises or any material part thereof shall be condemned, confiscated, requisitioned or acquired by eminent domain or if the Premises is damaged by fire or other casualty, unless with respect to damage by fire or other casualty, same is covered by insurance and could be restored promptly so as to not delay completion of the Improvements by the Completion Date and in compliance in the 421-a Requirements;

(p)    if Borrower shall fail to comply with any of its obligations under Section 1.10 with respect to the Equity Contribution;

(q)    if the Collateral becomes subject to any liens, other than the lien created by the Pledge and Security Agreement and/or Senior Borrower is “opting” out of Article 8 of the Uniform Commercial Code;

(r)    if Senior Borrower is in default beyond any applicable notice, grace or cure period under any of its obligations under the MIH Declaration, 421-a Tax Exemption Program or the Mandatory Inclusionary Housing Program, or if Lender determines, in Lender’s sole but commercially reasonable discretion, that the Premises will not be entitled to receive the 421-a Tax Benefits or if the 421-a Tax Benefits shall be withdrawn, revoked, removed and/or superseded; or

(s)    if an Event of Default (as defined therein) shall occur under any of the Senior Loan Agreements, or if a foreclosure action shall be commenced under the Acquisition Loan Mortgage, the Building Loan Mortgage and/or the Project Loan Mortgage.

Section 4.2         Notice and Cure

The defaults described in Section 4.1 shall constitute Events of Default hereunder upon the giving of the following notice and the passage of the following time:

(i)    with respect to any default in payment of principal or accrued interest (including any interest on unpaid interest), immediately after the same shall become due and payable, whether at maturity or by acceleration or otherwise, and with respect to any monetary default other than a default in payment of principal or accrued interest (including any interest on unpaid interest), five (5) business days after Administrative Agent has given Borrower written notice of such default;

(ii)    with respect to any non-monetary defaults under clause (b) of Section 4.1, thirty (30) days after the date Borrower has written notice of such default, provided that if a non-monetary default is not curable within such thirty (30) day period but Borrower commences to cure same and diligently pursues the cure, Borrower shall have an additional period not to exceed ninety (90) days (i.e., one hundred twenty (120) days in all) to complete the cure of the default, provided Borrower is at all times diligently pursuing the cure and provided such default shall not have a Material Adverse Effect;

(iii)    with respect to the defaults described in clause (f) (h), (i), (k) (l) or (m) of Section 4.1, thirty (30) days after the occurrence of such default provided such default is capable of being cured by Borrower;

(iv)    with respect to the defaults described in clause (e) of Section 4.1, five (5) business days after the occurrence of such default provided such default is capable of being cured by Borrower; and

(v)    with respect to the other defaults hereinabove described, there shall be no additional requirement that Administrative Agent give notice of default and there shall be no opportunity to cure (other than the notice and opportunity to cure expressly set forth with respect to an Event of Default in each of the Loan Documents).

Section 4.3         Remedies

(a)    Administrative Agent and the Lenders shall have the right, upon the occurrence of any monetary default or non-monetary material default specified in Section 4.1 (and prior to the cure thereof), to cease funding of the Loan or making any further advances, and upon the occurrence of any Event of Default (except that interest shall continue to accrue on the entire outstanding amount of the Loan, including any accrued and unpaid interest thereon, compounded monthly), in addition to any right or remedy available to it under the Pledge and Security Agreement, the Note and the other Loan Documents, Administrative Agent shall have the right, subject to the holder of the Senior Loan, to enter into possession of the Premises and perform any and all work and labor necessary to complete the Improvements substantially in accordance with the Plans and employ watchmen to protect the Premises and the Improvements; all sums expended by Administrative Agent and the Lenders in connection with the completion of the Improvements shall be deemed to have been paid to Borrower and secured by the Pledge and Security Agreement (as shall any other sums advanced by Administrative Agent and the Lenders for whatsoever purpose relative to the Loan or the Improvements). For this purpose, Borrower hereby constitutes and appoints Administrative Agent its true and lawful attorney-in-fact with full power of substitution to complete the Improvements and hereby empowers said attorney or attorneys as follows: (i) to use any funds of Borrower including any balance which may be held in escrow and any funds which may remain unadvanced hereunder for the purpose of completing the Improvements in the manner called for by the Plans; (ii) to make such additions and changes and corrections in the Plans which shall be necessary or desirable to complete the Improvements in substantially the manner contemplated by the Plans; (iii) to sell or rent the Premises or any part thereof and complete any work required by any lease; (iv) to employ such contractors, subcontractors, agents, architects and inspectors as shall be required for said purposes; (v) to pay, settle or compromise all existing bills and claims which are or may be liens against the Premises, or may be necessary or desirable for the completion of the work or the clearance of title; (vi) to execute all applications and certificates in the name of Borrower which may be required by any construction contract; and (vii) to do any and every act with respect to the Improvements which Borrower may do in its own behalf. It is understood and agreed that this power of attorney shall be deemed to be a power coupled with an interest which cannot be revoked. Said attorney-in-fact shall also have power to prosecute and defend all actions or proceedings in connection with the Improvements and to take such action and require such performance as is deemed necessary.

(b)    Administrative Agent may declare the Note to be immediately due and payable. Upon the occurrence of any Event of Default as set forth in Section 4.1, all amounts evidenced by the Note, including all accrued interest thereunder (including interest on unpaid interest, which shall continue to accrue until paid in full), shall automatically become due and payable, without any presentment, demand, protest, or notice of any kind to Borrower.

(c)    Administrative Agent may use and apply any funds deposited by Borrower with Administrative Agent or made available by Borrower to Administrative Agent under any letters of credit, regardless of the purposes for which the same were deposited or made available, to cure any Event of Default or toward the payment of any amount due and owing to Administrative Agent by Borrower.

(d)    Administrative Agent may also exercise or pursue any other remedy or cause of action permitted under this Agreement, the Pledge and Security Agreement or any other Loan Documents, or available to Administrative Agent under applicable laws or in equity.

ARTICLE V

CONDITIONS PRECEDENT TO ADMINISTRATIVE AGENT’S AND THE LENDERS’ OBLIGATION

Administrative Agent and the Lenders shall not be obligated hereunder unless the following conditions shall have been satisfied; provided that by acceptance of this Agreement, Administrative Agent and the Lenders hereby confirm that said conditions have been satisfied or waived:

Section 5.1         Commitment Fee and Administration Fee

The Commitment Fee and the initial payment of the Administration Fee shall have been paid directly to Administrative Agent to be retained by Administrative Agent whether or not any advances are made hereunder.

Section 5.2         Report of Administrative Agent’s Engineer

Administrative Agent will, at Borrower’s sole expense, retain Administrative Agent’s Engineer of its choice who will review the Plans, the Budget, purchase orders and the various other matters incidental to the construction of the Improvements, all of which must be approved by Administrative Agent’s Engineer, and Administrative Agent shall have no obligation to make additional advances of the Loan after the Initial Closing unless it receives a favorable written report from Administrative Agent’s Engineer with respect to: (i) Borrower’s ability to complete the Improvements in accordance with the Plans for the sum set forth in the Budget; (ii) the present physical condition and the operation of the structure and systems of the Premises, if applicable, and Administrative Agent’s Engineer’s analysis of the expected physical condition and operation upon completion of the Improvements; (iii) Administrative Agent’s Engineer’s review of the Budget for reasonableness as to amounts and timing; and (iv) Administrative Agent’s Engineer’s opinion concerning the percentage of completion of each line item of the Budget and the quality of the work completed to date, if applicable.

Section 5.3         Senior Loans.

The Acquisition Loan, the Building Loan and the Project Loan shall have closed.

Section 5.4         421-a Tax Benefits

Administrative Agent shall have received documentation, in form and substance satisfactory to Administrative Agent, evidencing that the Improvements, when constructed, will qualify for the maximum 421-a Tax Benefits permitted by law, in the form of an opinion of Borrower’s 421-a Tax Benefits counsel addressing such issues as Administrative Agent shall deem appropriate.

Section 5.5         FRESH Benefits

Administrative Agent shall have received documentation, in form and substance satisfactory to Administrative Agent, evidencing that the Improvements, when constructed and leased to a qualifying retail food store, will qualify for the maximum FRESH Benefits permitted by law, in the form of an opinion of Borrower’s FRESH Benefits counsel addressing such issues as Administrative Agent shall deem appropriate.

Section 5.6         Additional Documentation and Information

Administrative Agent shall have received:

(i)    a duly executed certificate of Borrower’s Architect in the form attached hereto as Exhibit E;

(ii)    a duly executed letter from Borrower’s Architect in the form attached here as Exhibit F;

(iii)    a copy of the General Contract, which shall be satisfactory to Administrative Agent in all respects;

(iv)    a duly executed letter from the General Contractor in the form attached hereto as Exhibit C;

(v)    prior to the first advance of the Loan to pay for hard costs, copies of Subcontracts for at least 60% of the total hard costs of the Improvements, together with duly executed letters from the Major Subcontractors thereunder substantially in the form attached hereto as Exhibit D; and

(vi)    such other documentation, information, opinions of counsel, assurances and other items pertaining to Borrower, any Guarantor, the Loan and/or the Premises as are required to be delivered pursuant to the Loan Documents or as Administrative Agent, in its sole but reasonable discretion, may otherwise require, all of which shall be satisfactory to Administrative Agent.

ARTICLE VI
CONDITIONS TO ADMINISTRATIVE AGENT’S AND THE LENDERS’ OBLIGATION
TO MAKE THE FIRST LOAN ADVANCE

Administrative Agent and the Lenders shall not be obligated to make the first advance of the Loan under this Agreement until the conditions set forth in Articles I and V hereof, the applicable conditions of Articles VIII and IX hereof and the following further conditions shall have been satisfied:

ARTICLE V

Section 6.1         Representations, Covenants and Warranties

The representations, covenants and warranties made in Article II and Article III hereof shall be true and correct on and as of the date of the first advance with the same effect as if made on such date; provided that Borrower shall be permitted to update such representations and warranties in writing, so long as such updated state of facts does not constitute an Event of Default hereunder or under the other Loan Documents, and no default beyond any applicable grace or cure period shall exist under this Agreement, the Note, the Pledge and Security Agreement, any other Loan Document, the General Contract or the Senior Loan Agreements; Nothing shall have occurred which could jeopardize the superiority of Administrative Agent’s lien on the Collateral or placed any possible lien of mechanic’s lienors on the Premises;

Section 6.2         Liens

Section 6.3         Equity Contribution

The Equity Contribution shall have been paid in full in the amounts and with respect to the line items as set forth in the Budget;

Section 6.4         No Fire or Other Casualty; No Structural Defects

The Premises shall not have been damaged by fire or any casualty, and there shall exist no structural defects in the Improvements;

Section 6.5         Additional Information and Documentation

Administrative Agent shall have received:

(i)    if the first advance of the Loan shall not be on the date of the Initial Closing, a notice of title continuation or an endorsement to the Title Policy, indicating that since the last preceding continuation endorsement, there has been no change in the state of title and no survey exceptions not theretofore approved by Administrative Agent, which endorsement shall have the effect of increasing the coverage of the policy (including full coverage against mechanic’s liens) by an amount equal to the advance then made if the policy does not by its own terms provide for such an increase;

(ii)    a Request for Advance and supporting documentation required by Section 1.5;

(iii)    advice from Administrative Agent’s Engineer to the effect that Administrative Agent’s Engineer has reviewed and approved disbursement of the hard costs portion of such Request for Advance;

(iv)    such other or further documents, data or information with respect to the Improvements or Premises as may be otherwise required by this Agreement;

(v)    the UCC-1 Financing Statement with respect to the Collateral, shall be filed in the appropriate public office or delivered to a representative of the title company issuing the UCC Insurance Policy for recording and payment shall have been made for all conveyancing and recording in connection with the settlement of the Loan, and for any filing fees and any transfer or documentary stamp taxes due under any federal, state or municipal law; and

(vi)    The Administrative Agent shall have received a paid UCC Insurance Policy or a valid and enforceable commitment to issue the same, from a company satisfactory to the Administrative Agent in the amount of the Loan (including interest on unpaid interest), together with all accrued and accruing interest on the Loan, and which may be endorsed or assigned to the successors and assigns of the Administrative Agent without additional cost, insuring the lien of the filing of the UCC-1 Financing Statement securing the Pledge and Security Agreement to be a valid first lien on the Collateral, free and clear of all defects, exceptions and encumbrances except such as the Administrative Agent and its counsel shall have approved and a mezzanine endorsement to Senior Borrower’s owners Title Policy, acceptable to Administrative Agent.

Notwithstanding the foregoing, Administrative Agent may, in its sole discretion, authorize the release of an advance without all of the foregoing conditions being satisfied.

ARTICLE VII
CONDITIONS TO ADMINISTRATIVE AGENT’S AND THE LENDERS’ OBLIGATION TO MAKE ADVANCES AFTER THE FIRST ADVANCE

Administrative Agent’s and the Lenders’ obligation to make any advance after the first Loan advance under this Agreement shall be subject to the satisfaction of the following conditions:

Section 7.1         Conditions of First Loan Advance

All conditions of the first Loan advance under this Agreement shall (to the extent applicable to such subsequent advance) be and remain satisfied at the time of any subsequent advance;

Section 7.2         No Default

There shall be no default beyond any applicable grace or cure period under this Agreement, the Senior Loan Agreements, the Senior Loan Mortgages, the Senior Loan Notes, the Note, the Pledge and Security Agreement, or any other Loan Document, or the General Contract, and all such documents shall be in full force and effect;

Section 7.3         Improvements Constructed in Accordance with Plans

The Improvements (or such part thereof as may have been constructed at the time of any Request for Advance) shall have been constructed substantially in accordance with the Plans and shall be located (wholly upon the Land in compliance with all set back and/or side line requirements) in accordance with the site plan originally approved by Administrative Agent, and in this regard Administrative Agent, may at any time, upon reasonable concern, require a perimeter survey showing the location of the Improvements or portion thereof then constructed; Section 7.4 No Fire or Other Casualty

The Improvements shall not have been injured or damaged by fire or other casualty, unless same is covered by insurance and could be restored promptly so as not to delay completion of the Improvements by the Completion Date;

Section 7.5         Access of the Administrative Agent’s Engineer

Borrower shall have provided, or cause Senior Borrower to provide, Administrative Agent’s Engineer prompt and unrestricted access to the Premises, and copies of all such documents, bills, construction records, change orders, drawings, plans and specifications as Administrative Agent’s Engineer shall require, to enable Administrative Agent’s Engineer to timely review each Request for Advance;

Section 7.6         No Structural Defect

There shall exist no structural defects in the Improvements, which are not in the process of being remedied;

Section 7.7         Draw Request Documentation

Administrative Agent shall have received:

(i)    a notice of title continuation or an endorsement to the Title Policy, indicating that since the last preceding continuation endorsement, there has been no change in the state of title and no survey exceptions not theretofore approved by Administrative Agent, which endorsement shall have the effect of increasing the coverage of the Title Policy (including full coverage against mechanic’s liens) by an amount equal to the advance then made if the Title Policy does not by its own terms provide for such an increase;

(ii)    the Request for Advance and supporting documentation required by Section 1.5; and

(iii)    advice from Administrative Agent’s Engineer to the effect that Administrative Agent’s Engineer has reviewed and approved disbursement of the hard costs portion of such Request for Advance.

Notwithstanding the foregoing, Administrative Agent may, in its sole discretion, authorize the release of an advance without all of the foregoing conditions being satisfied.

Section 7.8         [Intentionally Omitted]

ARTICLE VIII
GENERAL CONDITIONS

The following conditions shall be applicable throughout the term of this Agreement:

Section 8.1         No Waiver

No advance shall constitute a waiver of any of the conditions of Administrative Agent’s and the Lenders’ obligation to make further advances nor, in the event Borrower is unable to satisfy, or to cause Senior Borrower to satisfy, any such condition, shall any such waiver have the effect of precluding Administrative Agent from thereafter declaring such inability to be an Event of Default as hereinabove provided;

Section 8.2         Required Plan and Cost Review

No work has been commenced or shall be commenced with respect to any particular segment of construction until the Plans and a comprehensive cost breakdown for such segment shall have been submitted to Administrative Agent and Administrative Agent’s Engineer, and said Plans and comprehensive cost breakdown has been approved by said parties (the receipt and approval of which Administrative Agent hereby confirms);

Section 8.3         Approval by Administrative Agent

All proceedings taken in connection with the transactions provided for herein, all surveys, appraisals and documents required or contemplated by this Agreement or the Mortgage or the other Loan Documents and the persons responsible for the execution and preparation thereof, the General Contractor, all sureties, guarantors, insurers and the form of the General Contract, and all leases, bonds, guarantees and policies of insurance shall be satisfactory to Administrative Agent, and Administrative Agent’s Counsel shall have received copies (or certified copies where appropriate in such counsel’s judgment) of all documents which they may request in connection therewith. In each case where the approval of Administrative Agent is required hereunder, such approval shall be deemed granted following Administrative Agent’s failure to respond thereto within ten (10) business days after such request has been delivered to Administrative Agent in accordance with the terms hereof, followed by an additional five (5) business days written notice of default which refers specifically to this Section 8.3.

Section 8.4         Budget Shortfall Obligations

If at any time, (a) the cost of any individual line item of the Budget (including both hard and soft costs) exceeds the amount set forth in the Budget for such individual line item, or (b) the cost of completing the Improvements (including, without limitation, anticipated interest under the Loan, the Acquisition Loan, the Building Loan and the Project Loan, and all other hard and soft costs), as determined by Administrative Agent in its sole (but reasonable) discretion (and in a manner consistent with the determination of the Senior Administrative Agent), exceeds the undisbursed portion of the Loan, the Acquisition Loan, the Building Loan and the Project Loan, then Borrower and/or any Guarantor shall, at Administrative Agent’s request, deposit with Senior Administrative Agent (in a manner not duplicative with any Deficiency Amount deposited by Senior Borrower) cash in an amount sufficient to cover the deficiency described in (a) and/or (b) above (a “Deficiency Amount”), after taking into account (i) contingency available for same, as reasonably determined by Administrative Agent’s Engineer, to be based in part on the percentage of completion that has then occurred and otherwise in accordance with this Agreement and the other Loan Documents, (ii) any cost savings documented in accordance with this Agreement and the other Loan Documents and verified by Administrative Agent’s Engineer; and (iii) up to (but not more than) $3,000,000.00 of interest which shall accrue on the Loan pursuant to the Note. There is no “cap” on the obligations described in this Section. The sums deposited by Senior Borrower, Borrower and/or any Guarantor with Senior Administrative Agent under this Section shall be disbursed by Senior Administrative Agent prior to the disbursement of any further Loan, Building Loan or Project Loan advances in the same manner as Loan, Building Loan and Project Loan advances. Notwithstanding the foregoing, provided no monetary or material non-monetary Default or Event of Default exists, the Administrative Agent will consent to the Borrower funding (or causing Senior Borrower to fund) a Deficiency Amount directly in payment of costs of construction of the Improvements in lieu of depositing same with Senior Administrative Agent and/or the Administrative Agent, provided that such sums are fully expended for costs of construction of the Improvements and the Budget is thereafter back in balance within ninety (90) days of the determination of such deficiency, and further provided that no further Loan advance hereunder, and no further Building Loan or Project Loan advances, shall be disbursed until such sums have been expended by Borrower and/or Senior Borrower.

Section 8.5         Conditions for Sole Benefit of Administrative Agent and the Lenders

All conditions to the obligations of the Administrative Agent and the Lenders to make advances hereunder are imposed solely and exclusively for the benefit of Administrative Agent, the Lenders and their participants, successors and assigns and no other person shall have standing to require satisfaction of such conditions in accordance with their terms or be entitled to assume that Administrative Agent or the Lenders will refuse to make advances in the absence of strict compliance with any or all thereof and no other person shall, under any circumstances, be deemed to be the beneficiary of such conditions, any or all of which may be freely waived in whole or in part by Administrative Agent at any time if in its sole discretion it deems it advisable to do so, it being further understood that Administrative Agent, the Lenders and their participants, successors and assigns shall have no obligation to see to it that the Improvements are properly and/or timely completed;

Section 8.6         Notices

All notices hereunder shall be in writing and shall be deemed to have been sufficiently given or served for all purposes when sent by certified mail, postage paid, return receipt requested, or by overnight nationwide commercial courier service addressed to the parties as follows:

or at such other address of which it shall notify the party giving such notice in writing. Mailed notices shall not be deemed given or served until three (3) business days after the date of mailing thereof and notices delivered by overnight nationwide commercial courier service shall be deemed given or served one (1) business day after the date of delivery thereof to said courier. Rejection or refusal to accept, or inability to deliver because of changed addresses or because no notice of changed address was given, shall be deemed a receipt of such notice. Any party to a Loan Document may rely on signatures of the parties thereto which are transmitted by fax or other electronic means as fully as if originally signed. Notices by Borrower or Guarantor to the Lenders shall be deemed given if same have been given to Administrative Agent; Amendments and Waivers.

Section 8.7         Amendments

The Administrative Agent and Borrower may, from time to time, enter into written amendments, supplements or modifications of the Loan Documents and the Administrative Agent on behalf of the Lenders may execute and deliver to any such parties a written instrument waiving or a consent to a departure from, on such terms and conditions as the Administrative Agent may specify in such instrument, any of the requirements of the Loan Documents or any Event of Default and its consequences; provided, however, that:

(i)    no such amendment, supplement, modification, waiver or consent shall, without the consent of all of the Lenders (other than any Defaulting Lenders):

(ii)    increase the Loan or subject the Lenders to any additional obligation;

(iii)    extend the Completion Date and/or the Maturity Date;

(iv)    decrease the interest rate (other than waiving the Default Rate; interest on unpaid interest or late fees) or change or forgive the principal amount of, or change the pro rata allocation of payments under, any Note;

(v)    reduce the amount of any fees payable to the Lenders hereunder;

(vi)    postpone any date fixed for any payment of principal of, or interest on, the Loan, or for the payment of fees or any other monetary obligation of Borrower or any Guarantor;

(vii)    sell or dispose of any Collateral for the Loan or release all or any part of the Collateral for theLoan or consent to any proposed or actual sale of the Premises by Senior Borrower, or the proposed sale of the Collateral by Borrower, other than in accordance with the terms of the Loan Documents;

(viii)    reduce the amount of the Equity Contribution as defined in and required under this Agreement;

(ix)    release the obligations of any Guarantor other than in accordance with the terms of the Loan Documents, or permit the transfer of more than 10% of the direct or indirect ownership interest in the Borrower or Senior Borrower other than in accordance with the terms of the Loan Documents;

(x)    amend this Agreement or any other provision of the other Loan Documents as such affects the substance of the definition of “Required Lenders” and the required percentages of Lenders to the amendments, supplements, modifications, waivers and/or consents listed hereinabove or below;

(xi)    consent to any change in the structure or the direct or indirect ownership of Borrower, the Collateral or the Premises, other than a Permitted Transfer, including but not limited to the waiver of any due on sale provision, any assumption of the Loan by any other Person, or any subordinate financing;

(xii)    waive, amend, or modify the insurance requirements contained in the Loan Documents in any material respect;

(xiii)    approve or adopt any plan of bankruptcy, reorganization, restructuring or similar event in an insolvency proceeding with respect to Senior Borrower, Borrower or any Guarantor;

(xiv)    declare the Loan due and payable except as required pursuant to the Loan Documents or by applicable Legal Requirements;

(xv)    take possession of, foreclose or accept a transfer and/or assignment of the Collateral or any material portion thereof in lieu of foreclosure, or thereafter sell or dispose of any material portion of the Collateral;

(xvi)    accept a discounted payoff of the Loan;

(xvii)    consent to any additional mezzanine or other subordinate financing with respect to the direct or indirect equity holders of the Borrower and/or the Senior Borrower (to the extent not expressly permitted under the Loan Documents);

(xviii)    waive, amend or modify any cash management or reserve account requirements contained in the Loan Documents;

(xix)    subordinate the lien or payment priority of any Loan Documents;

(xx)    waive any “due-on-sale” or “due-on-encumbrance” clause with respect to the Loan; or

(xxi)    without the consent of the Required Lenders, Administrative Agent shall not (a) consent to a change in the Budget if such change results in an increase thereof of $2,000,000.00 or more in the aggregate throughout the Project (except that no such consent is required with respect to Change Orders approved under the Loan Documents and/or Budget increases with respect to which Senior Borrower and/or Borrower has contributed cash equity sufficient to maintain the Budget in balance), (b) consent to a change in any required rental hurdles for residential apartment units by 20% or more in the aggregate (c) grant a waiver for longer than ninety (90) days with respect to (x) achievement of apartment rental hurdles or (y) cost increases of 5% or more of the Budget (in the aggregate) (except that no such consent shall be required with respect to Change Orders approved under the Loan Documents and/or Budget increases with respect to which Senior Borrower and/or Borrower has contributed cash equity sufficient to maintain the Budget in balance), (d) waive the existence of a lien of $500,000.00 or more not otherwise permitted under the Loan Documents, (e) waive for more than thirty (30) days an Event of Default resulting from the cessation of construction of the Improvements.

Provisions Affecting Amendments and Waivers. (i) Any such amendment, supplement, modification or waiver shall apply equally to each of the Lenders and shall be binding upon the parties to the applicable Loan Document, the Lenders, the Administrative Agent and all future holders of the Note. In the case of any waiver, the parties to the applicable Loan Document, the Lenders and the Administrative Agent shall be restored to their former position and rights hereunder and under the outstanding Note and other Loan Documents to the extent provided for in such waiver, and any Event of Default waived shall not extend to any subsequent or other Event of Default, or impair any right consequent thereon. The Loan Documents may not be amended orally or by any course of conduct.

(xxii)    To the extent any consent is requested under thisAgreement or the other Loan Documents, Administrative Agent will provide the Lenders with written notice of any request, item, or other matter requiring such consent, along with such other materials and/or information which Administrative Agent has been provided with by the Borrower and/or the Borrower’s agents and representatives in such regard. To the extent a Lender does not provide a response approving or denying such request within a period of time equal to the shorter of (i) five (5) Business Days of receipt of such notice, or (ii) such period of time afforded to the Administrative Agent to respond to the Borrower under the Loan Documents, as applicable and as the context may require, the request shall be deemed to be approved by such Lender.

Parties Benefiting from this Section. The provisions of this Section are for the benefit of the Administrative Agent and the Lenders only, and not for the benefit of Senior Administrative Agent, Senior Lender, Senior Borrower and/or Borrower.

Provisions of this Section Binding on All Loan Documents. Notwithstanding anything set forth in any other Loan Document and for the avoidance of doubt, it is expressly agreed that the provisions of this Section 8.7 shall control any amendment, supplement, modification, waiver or consent of any other Loan Document.

Section 8.8         Requirement for Lien Free Completion

Subject to the express provisions of this Agreement, including, without limitation, Section 1.3(d)(iii), Administrative Agent and the Lenders shall not be obligated to advance any sums for construction of the Improvements hereunder unless Administrative Agent is satisfied that the Improvements will be completed, lien free substantially in accordance with the Plans for the sum set forth in the Budget approved by Administrative Agent within the time period required by this Agreement prior to the Completion Date and sufficient to satisfy the 421-a Requirements and to cause the Premises to obtain the 421-a Tax Benefits;

Section 8.9         Assignments and Participations

Administrative Agent and the Lenders shall have the right to assign the Loan and to invite participants, to participate in portions of the Loan, without consent. and Borrower agrees to execute any documents reasonably requested by Administrative Agent to effectuate such assignments and participations, all as more particularly set forth below:

(a)    Binding Obligations; No Assignment by Borrower. The Loan Documents shall be binding upon and inure to the benefit of Borrower, the Lenders, the Administrative Agent, all future holders of the Note and their respective successors and assigns, except that Borrower may not assign, delegate or transfer any of its rights or obligations under the Loan Documents without the prior written consent of the Administrative Agent and the Required Lenders.

(b)    Assignments. Each Lender shall have the right at any time, upon written notice to the Administrative Agent of its intent to do so, to sell, assign, transfer or negotiate all or any part of such Lender’s rights under the Loan Documents to (1) one or more of its Affiliates (provided the Affiliate has adequate resources to thereafter fund its obligations under the Loan Documents), (2) to one or more of the other Lenders (or to Affiliates (provided the Affiliate has adequate resources to thereafter fund its obligations under the Loan Documents) of such other Lenders), or (3) with the prior written consent of the Administrative Agent, but without the consent of Borrower. For each assignment, the parties to such assignment shall execute and deliver to the Administrative Agent for its acceptance and recording an Assignment and Acceptance Agreement. Upon such execution, delivery, acceptance and recording by the Administrative Agent, from and after the effective date specified in such Assignment and Acceptance Agreement, the assignee thereunder shall be a party hereto and a party under this Agreement and under the other Loan Documents and, to the extent provided in such Assignment and Acceptance Agreement, the assignor Lender thereunder shall, subject to the terms of this Section, be released from its obligations under the Loan Documents. Borrower agrees upon written request of the Administrative Agent to execute and deliver (1) to such assignee, Note(s), each dated the effective date of such Assignment and Acceptance Agreement, in the aggregate principal amount equal to the respective interest in the Loan or portion thereof assigned to such assignee, (2) to such assignor Lender (if less than all of such Lender’s interests in the Loan are assigned), Note(s), each dated the effective date of such Assignment and Acceptance Agreement, in the aggregate principal amount equal to the balance of such assignor Lender’s interest in the Loan and (3) to the Administrative Agent, if required by it, amendments to this Agreement identifying the new Lender’s interest in the Loan. It is intended that each such new Note shall, upon the effective date of such assignment, amend and restate the indebtedness under the Note they replace. It shall be in the discretion of the Administrative Agent to obtain the new Note if the assignee Lender does not require such new Note. The issuance of such replacement Note and/or the surrender of the Note so replaced shall not be deemed the making of new advances, nor shall it be construed as evidence of the payment or prepayment of the indebtedness that is restated by such new Note. Upon any such sale, assignment or other transfer, the Administrative Agent shall adjust its records to reflect the new Committed Amounts of each Lender and shall deliver notice to Borrower and each Lender reflecting (i) such new Committed Amounts, (ii) the office of each Lender, and (iii) the address for notices of each Lender. Each party shall be responsible for its own legal fees and expenses in connection with an assignment.

(c)    Participations. Each Lender may grant participations in all or any part of its interest in the Loan, its Note and its Committed Amount to one or more of its Affiliates, or, with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld) to one or more Person, other than a Prohibited Person, provided that such Lender’s obligations under the Loan Documents shall remain unchanged, such Lender shall remain solely responsible to the other parties to the Loan Documents for the performance of such obligations, Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under the Loan Documents. Borrower shall not, at any time, be obligated to pay any participant in any interest of any Lender hereunder any sum in excess of the sum which Borrower would have been obligated to pay to such Lender in respect of such interest had such Lender not sold such participation.

(d)    Obligations after Assignment. No Lender shall, as between and among Borrower, the Administrative Agent and such Lender, be relieved of any of its obligations under the Loan Documents as a result of any sale, assignment, transfer or negotiation of, or granting of participations in, all or any part of its Loan, its Committed Amount or its Note, except that a Lender shall be relieved of its obligations to the extent of any such sale, assignment, transfer, or negotiation of all or any part of its portion of the Loan, its Committed Amount or its Note pursuant to subsection (b) above.

(e)    Register. The Administrative Agent, acting solely for this purpose as a non-fiduciary agent of the Borrower, shall maintain at the principal office a copy of each Assignment and Acceptance Agreement delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts (and stated interest) of the Loan owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower and any Lender, at any reasonable time and from time to time upon reasonable prior notice.

Section 8.10         Copies of Notices of Violations to Administrative Agent

Borrower shall promptly deliver, or shall cause Senior Borrower to deliver, to Administrative Agent true and complete copies of all notes, notices or other communications received from any Governmental Authority respecting the failure of the Premises to comply in all material respects with any with any requirement of Local or Governmental Authority;

Section 8.11         Reports and Approvals for Sole Benefit of Administrative Agent and the Lenders

All reports and approvals of Administrative Agent’s Engineer and environmental engineer, including, but not limited to, the reports with respect to the existing and proposed Improvements and the structural integrity thereof, and the environmental status thereof, shall be for Administrative Agent’s and the Lenders’ purposes only (although Senior Borrower and/or Borrower shall be entitled to receive copies thereof), it being understood that such reports and approvals shall not be deemed to be for the benefit of Borrower, any tenant or purchaser of all or a portion of the Premises or any party other than Administrative Agent, the Lenders and their participants, successors and assigns, and, it being further understood that neither Administrative Agent, the Lenders, their participants, their successors and assigns, Administrative Agent’s Engineer, nor its environmental engineer shall have any liability to any party by reason of any such report or approval or by reason of Administrative Agent’s acceptance or rejection thereof; Section 8.12 Compliance with Laws

The Premises, the proposed use thereof and the construction of the Improvements must at all times comply with all codes, laws, ordinances, rules and regulations of all Governmental Authorities claiming or having jurisdiction over same, including, without limitation, all zoning, subdivision, building and environmental matters and laws pertaining to persons with handicaps, it being understood that Borrower and its agents must comply, or cause Senior Borrower to comply, with all of the foregoing. Borrower agrees to indemnify Administrative Agent and the Lenders and hold Administrative Agent and the Lenders harmless with respect to any claims against Administrative Agent or a Lender relating to the Loan, the Premises, the Collateral or the Improvements, including, but not limited to, the construction of the Improvements and the proposed or actual use thereof. There must be no action or proceeding pending before any court, quasi-judicial body or administrative agency relative to the Loan, the Premises, the Collateral or any part thereof, or the proposed construction of the Improvements or the proposed or actual use of the Premises (which, in any such case, would likely have a Material Adverse Effect on the Borrower, the Collateral and/or the Premises) that is not being contested in good faith by Borrower or Senior Borrower. The Premises must be separately assessed from any other property. Borrower must also provide Administrative Agent with evidence that the proposed Improvements, when completed, will comply, with all applicable zoning, environmental, fire and building codes and Administrative Agent must receive such certificates, opinions of counsel and assurances as it may deem appropriate with respect to compliance with all applicable building, zoning, environmental, fire and other codes, laws, regulations and ordinances, and any restrictions relating to the 421-a Tax Benefits.

ARTICLE IX
PARTICULAR PROVISIONS

The foregoing Articles of this Agreement are subject to the following further provisions:

Section 9.1         Approval by Administrative Agent’s Engineer

The Administrative Agent and the Lenders shall not be obligated to make advances hereunder unless (a) Administrative Agent’s Engineer, acting reasonably (and in a manner consistent with the Senior Administrative Agent), approves each Request for Advance and, subject to and in accordance with the terms hereof, confirms that the Improvements theretofore constructed have been constructed in accordance with the terms of this Agreement and (b) Administrative Agent shall at all times have first priority security interest in the Collateral for the full amount of the Loan;

Section 9.2         [Intentionally Deleted].

Section 9.3         No Assignment

Borrower shall not assign or transfer its rights or obligations hereunder without the prior written consent of Administrative Agent, other than in connection with a Permitted Transfer; Borrower irrevocably submits to the jurisdiction of any New York State or Federal court sitting in the City of New York over any suit, action or proceeding arising out of or relating to this Agreement or any Loan Document.

Section 9.4         Jurisdiction

Borrower hereby agrees that Administrative Agent shall have the option in its sole discretion to lay the venue of any such suit, action or proceeding in the courts of the State of New York sitting in New York City or the federal District Court for the Eastern District of New York or Southern District of New York, and irrevocably waives to the fullest extent permitted by law any objection which Borrower may now or hereafter have to the laying of the venue of any such suit, action or proceeding brought in such court and any claim that any suit, action or proceeding brought in such court has been brought in an inconvenient form. Borrower agrees that a final judgment of any such suit, action or proceeding brought in such a court shall be conclusive and binding upon Borrower;

Section 9.5         Service of Process

Borrower hereby irrevocably consents to the service of process in any suit, action or proceeding by sending the same by first class mail, return receipt requested, or by overnight courier service, to the address of Borrower set forth in or referred to in Section 8.6. Borrower hereby agrees that any such service (i) shall be deemed in every respect effective service of process upon it in any such suit, action, or proceeding, and (ii) shall to the fullest extent enforceable by law, be taken and held to be valid personal service upon and personal delivery to it. Nothing in the Loan Documents or any modification, waiver, consent or amendment thereto shall affect the right of Administrative Agent to serve process in any manner permitted by law.

Section 9.6         WAIVER OF TRIAL BY JURY

ADMINISTRATIVE AGENT, THE LENDERS AND BORROWER EACH HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION ARISING OUT OF, UNDER OR IN CONNECTION WITH THE LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREIN. FURTHER, BORROWER HEREBY CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF ADMINISTRATIVE AGENT OR THE LENDERS, OR COUNSEL TO ADMINISTRATIVE AGENT OR THE LENDERS, HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT LENDER WOULD NOT, IN THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION. BORROWER ACKNOWLEDGES THAT ADMINISTRATIVE AGENT AND THE LENDERS HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, INTER ALIA, THE PROVISIONS OF THIS SECTION.

Section 9.7         Governing Law

Section 9.8         Severability

This Agreement shall, without regard to place of contract or payment, be construed and enforced according to the laws of the State of New York, without giving effect to its principles of conflicts of laws; In the event any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall, at the option of Administrative Agent, not affect any other provision of this Agreement but this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein or therein;

Section 9.9         Headings Descriptive

Section headings have been inserted in this Agreement and the other Loan Documents for convenience only and shall in no way affect the meaning or construction of any provision hereof or thereof;

Section 9.10         Counterparts

This Agreement and the other Loan Documents may be executed by one or more of the parties thereto on any number of separate counterparts and all of said counterparts taken together shall be deemed to constitute one and the same document. It shall not be necessary in making proof of this Agreement or any other Loan Document to produce or account for more than one counterpart signed by the party to be charged;

Section 9.11         Definitions Include Amendments

Definitions contained in this Agreement which identify documents, including the other Loan Documents, shall be deemed to include all amendments and supplements to such documents entered into from time to time with the consent of Administrative Agent. Reference to this Agreement in any of the foregoing documents shall be deemed to include all amendments and supplements to this Agreement.

ARTICLE X

SENIOR LOAN PROVISIONS

Section 10.1         Compliance with Senior Loan Documents

Borrower shall cause Senior Borrower to: (i) pay all principal, interest, reserves, deposits and other sums required to be paid by Senior Borrower under and pursuant to the provisions of the Senior Loan Documents; (ii) diligently perform and observe all of the terms, covenants and conditions of the Senior Loan Documents on the part of Senior Borrower to be performed and observed; (iii) promptly deliver to Administrative Agent a true and complete copy of any notice by Senior Administrative Agent to Senior Borrower, Borrower, or Guarantor of any default by Senior Borrower under the Senior Loan Documents and of any other material written correspondence (including electronically transmitted items) given or received by Senior Borrower or Guarantor to or from the Senior Administrative Agent, any Senior Lender or its or their agents; (iv) provide Administrative Agent with a copy of any amendment or modification of, or waiver or consent granted under, the Senior Loan Documents within five (5) days after its receipt thereof; (v) not amend, modify, enter into or be bound by any Senior Loan Document without the prior approval of Administrative Agent (other than with respect to ministerial, non-material modifications or amendments) and (vi) deliver to Administrative Agent all of the financial statements, reports, certificates and related items delivered or required to be delivered by Senior Borrower to Senior Administrative Agent under the Senior Loan Documents as and when due under the Senior Loan Documents. Without limiting the foregoing, Borrower shall cause Senior Borrower to fund all reserves and deposits required to be funded pursuant to the Senior Loan Documents.

Section 10.2         Additional Representations and Warranties

Borrower hereby represents and warrants that (i) the outstanding aggregate principal balance of the Senior Loan, as of the date of this Agreement, is $36,985,000.00, (ii) no default, breach, violation or Event of Default has occurred under (and as defined in) the Senior Loan Documents which remains uncured or unwaived, and no circumstance, event or condition has occurred or exists which, with the giving of notice and/or the passage of time would constitute an Event of Default under (and as defined in) the Senior Loan Documents and (iii) each and every representation and warranty of Senior Borrower contained in any one or more of the Senior Loan Documents is true, correct and complete in all material respects as of the date hereof.

Section 10.3         Senior Loan Defaults

(a)    Borrower agrees to notify Administrative Agent promptly upon the occurrence of any Senior Loan Event of Default. If any Senior Loan Event of Default occurs, Borrower agrees that Administrative Agent shall have the immediate right, subject to the terms of the Senior Loan Documents and the Intercreditor Agreement, without prior notice to Borrower, but shall be under no obligation to (i) pay all or any part of the Senior Loan and any other sums that are then due and payable, and perform any act or take any action on behalf of Borrower and/or Senior Borrower as may be appropriate, to cause all of the terms, covenants and conditions of the Senior Loan Documents on the part of Senior Borrower to be performed or observed thereunder to be promptly performed or observed, and (ii) pay any other amounts and take any other action as Administrative Agent, in its sole and absolute discretion, shall deem advisable to protect or preserve the rights and interests of Lender in the Loan and/or the Collateral, for the account of Borrower. Borrower shall not impede, interfere with, hinder or delay, and shall not permit Senior Borrower to impede, interfere with, hinder or delay, any effort or action on the part of Administrative Agent to cure any Senior Loan Event of Default or asserted Senior Loan Event of Default, or to otherwise protect or preserve Administrative Agent’s interests in the Loan and the Collateral following a Senior Loan Event of Default or asserted Senior Loan Event of Default.

(b)    Borrower, on behalf of Senior Borrower, hereby grants Administrative Agent and its designees the right to enter upon the Premises, subject to the rights of Senior Administrative Agent, the terms of the Senior Loan Documents, at any time following the occurrence and during the continuance of any Senior Loan Event of Default, or the assertion by Senior Lender that a Senior Loan Event of Default has occurred, for the purpose of taking any such action or to appear in, defend or bring any action or proceeding to protect Lender’s interest. Administrative Agent may take such action as Administrative Agent deems reasonably necessary or desirable to carry out the intents and purposes of this subsection (including communicating with Senior Lender with respect to any Senior Loan Events of Default), without prior notice to, or consent from, Borrower or Senior Borrower. Neither Administrative Agent nor Lender shall have any obligation to complete any cure or attempted cure undertaken or commenced by Administrative Agent or Lender.

(c)    All sums so paid and the costs and expenses incurred by Administrative Agent in exercising rights under this Section 10.3 (including its reasonable attorneys’ fees and costs) (i) shall constitute additional Advances of the Loan, increase the unpaid principal amount of the Loan, bear interest at the then applicable interest rate hereunder (including interest on unpaid interest, compounded monthly) and be added to the Indebtedness, (ii) shall bear interest at the Default Rate for the period from the date that such costs or expenses were incurred to the date of payment to Administrative Agent, as same may accrue under the Note, including interest on unpaid interest, and (iii) shall be evidenced by the Note and secured by the Pledge and Security Agreement and the other Loan Documents. Borrower hereby indemnifies Administrative Agent and Lender from and against all losses, out-of-pocket expenses, damages, claims and causes of action, including reasonable attorneys’ fees, costs and expenses, of any kind or nature whatsoever which may be imposed on, incurred by or asserted against Administrative Agent or Lender as a result of the foregoing actions. In the event that Administrative Agent makes any payment in respect of the Senior Loan, Administrative Agent shall be subrogated to all of the rights of Senior Lender under the Senior Loan Documents against the Premises, in addition to all other rights it may have under the Loan Documents.

(d)    If Administrative Agent shall receive a copy of any notice of a Senior Loan Event of Default sent by Senior Administrative Agent or Senior Lender, such notice shall constitute full protection to Administrative Agent for any action taken or omitted to be taken by Administrative Agent, in good faith, in reliance thereon. As a material inducement to Lender’s making the Loan, Borrower hereby absolutely and unconditionally releases and waives all claims against Administrative Agent and/or Lender arising out of Administrative Agent and/or Lender’s exercise of its rights and remedies provided in this Section 10.3, except for Administrative Agent’s or any Lender’s gross negligence or willful misconduct.

Section 10.4         Acquisition of the Senior Loan

None of Borrower, Senior Borrower, Guarantor, or any Affiliate of any of the foregoing shall acquire or agree to acquire the Senior Loan, or any portion thereof or any interest therein, or any direct or indirect ownership interest in the holder of the Senior Loan, via purchase, transfer, exchange, operation of law, or otherwise, and any breach or attempted breach of this Section 10.4 shall constitute an immediate and uncurable Event of Default hereunder. If, solely by operation of applicable subrogation law, Borrower, Senior Borrower, Guarantor, or any Affiliate of any of the foregoing shall have failed to comply with the foregoing, then Borrower shall (i) immediately notify Administrative Agent of such failure, and (ii) cause any and all such prohibited parties acquiring any interest in the Senior Loan Documents (A) not to enforce the Senior Loan Documents, and (B) upon the request of Administrative Agent, to the extent any of such prohibited parties has or have the power or authority to do so, to promptly (1) cancel the Senior Notes evidencing the Senior Loan, (2) reconvey and release the Liens securing the Senior Loan and any other collateral under the Senior Loan Documents, and (3) discontinue and terminate any enforcement proceeding(s) under the Senior Loan Documents.

Section 10.5         Refinancing of the Senior Loan

Borrower shall not make or permit to be made (whether by Senior Borrower or any other Person) any refinancing of the Senior Loan without the prior written consent of Administrative Agent, which consent may be granted or withheld by Administrative Agent in its sole and absolute discretion; provided, however, that no consent shall be required so long as, simultaneously therewith, Borrower prepays in full the entire outstanding principal balance of the Loan and all interest which has accrued thereon (including interest on unpaid interest), together with all Minimum Interest (if applicable) and the Exit Fee and any other amounts payable under the Loan Documents. Without limiting the foregoing, any sums that would otherwise be payable to Senior Borrower or distributable to Borrower, after payment of all amounts owed under the Senior Loan Documents, in connection with the refinancing of the Senior Loan (including any refund of reserves and escrows on deposit with Senior Lender), shall be immediately remitted by Borrower to Lender up to the amount necessary to fully repay the Indebtedness.

Section 10.6         Intercreditor Agreement

Borrower hereby acknowledges and agrees that any intercreditor agreement entered into between Lender and Senior Lender (including, without limitation, the Intercreditor Agreement) will be solely for the benefit of Lender and Senior Lender, and that neither Borrower nor Senior Borrower shall be third-party beneficiaries (intended or otherwise) of any of the provisions therein, have any rights thereunder, or be entitled to rely on any of the provisions contained therein. Lender and Senior Lender have no obligation to disclose to Borrower or Senior Borrower the contents of any such intercreditor agreement (including, without limitation, the Intercreditor Agreement), or to any amendments or modifications thereof, which may be made without Borrower’s or Senior Borrower’s consent. Borrower’s obligations hereunder are and will be independent of any such intercreditor agreement (including, without limitation, the Intercreditor Agreement) and shall remain unmodified by the terms and provisions thereof.

Section 10.7         Payments to Lender

Notwithstanding anything to the contrary contained in this Agreement, the Loan Documents, and/or the Senior Loan Documents, the parties hereto acknowledge and agree that, as to any clause or provision contained in this Agreement, the other Loan Documents, and/or the Senior Loan Documents to the effect that payments, distributions, or other similar effect are to be made by Senior Borrower (as opposed to Borrower) to Lender or applied to the Loan, such clause or provision shall be deemed to mean, and shall be construed as meaning, that Lender, Senior Lender or a thirty party shall pay to Senior Borrower, and Senior Borrower shall then immediately distribute to Borrower, its sole member, pursuant to and in accordance with the organizational documents of Senior Borrower and Borrower, which distribution shall be immediately payable to Lender, and any such clause or provision shall not be construed as meaning that Borrower and/or Senior Borrower is acting on behalf of, holding out its credit for, or paying the obligations of, the other, as applicable, directly or in any other manner that would violate any of the Single Purpose Bankruptcy Remote Entity covenants contained in this Agreement or other similar covenants contained in Borrower’s organizational documents or Senior Borrower’s organizational documents, respectively.

Section 10.8         Independent Approval Rights

If any action, proposed action or other decision is consented to or approved by Senior Administrative Agent and/or Senior Lender, such consent or approval shall not be binding or controlling on Administrative Agent or Lenders. Borrower hereby acknowledges and agrees that (i) the risks of Senior Lender in making the Senior Loan are different from the risks of Lender in making the Loan, (ii) in determining whether to grant, deny, withhold or condition any requested consent or approval, Senior Administrative Agent, Senior Lender and Administrative Agent may reasonably reach different conclusions, and (iii) Administrative Agent has an absolute independent right to grant, deny, withhold or condition any requested consent or approval based on its own point of view, but subject to the standards of consent set forth herein. Furthermore, the denial by Administrative Agent of a requested consent or approval shall not create any liability or other obligation of Administrative Agent if the denial of such consent or approval results directly or indirectly in a Senior Loan Event of Default, and Borrower hereby waives any claim of liability against Administrative Agent arising from any such denial unless Administrative Agent has not complied with any applicable standard for consent.

Section 10.9         Senior Loan Estoppels

Borrower shall cause Senior Borrower to, from time to time, no more than one (1) time per calendar year unless an Event of Default exists, use reasonable efforts to obtain from Senior Lender such certificates of estoppel with respect to compliance by Senior Borrower with the terms of the Senior Loan Documents as may be reasonably requested by Administrative Agent. In the event or to the extent that either of Senior Lender is not legally obligated to deliver such certificates of estoppel and is unwilling to deliver the same, or is legally obligated to deliver such certificates of estoppel but breaches such obligation, then Borrower shall not be in breach of this provision so long as Borrower furnishes to Administrative Agent an estoppel executed by Borrower and Senior Borrower expressly representing to Administrative Agent the information reasonably requested by Administrative Agent regarding compliance by Senior Borrower with the terms of the Senior Loan Documents.

Section 10.10         Advances for Obligations

Proceeds of the Loan may be used to pay interest and any other sums due and payable with respect to (i) the Loan or pursuant to any Loan Documents, other than interest on unpaid interest which shall be required to accrue in the manner set forth in the Note (including interest on unpaid interest, compounded monthly), (ii) the Acquisition Loan or pursuant to any Acquisition Loan Documents, (iii) the Building Loan or pursuant to any Building Loan Documents, and (iv) the Project Loan or pursuant to any Project Loan Documents, in each case subject to the terms and conditions of this Agreement, including, without limitation, the availability in the Budget of Loan proceeds. Notwithstanding anything in this Agreement which may be to the contrary, Administrative Agent shall at all times have the right (but not the obligation), by its own action, to make Advances for the purpose of paying interest, fees and any other sums then due and payable to Administrative Agent with respect to the Loan or pursuant to any Loan Documents, other than interest on unpaid interest which shall accrue and be paid in the manner set forth in the Note.

[Remainder of page intentionally left blank; signature page follows]

IN WITNESS WHEREOF, the parties have executed this          Agreement as of the day and year first above written, the execution hereof by Borrower constituting (a) a certification by Borrower that the representations, covenants and warranties made in Article II and Article III and elsewhere herein are true and correct as of the date hereof, and (b) the undertaking of Borrower that each Request for Advance shall constitute the affirmation on their part that at the time thereof said representations, covenants and warranties are true and correct in all material respects. Borrower, by signing below, hereby agree to be bound by the terms and provisions of this Agreement which it is specifically required to perform.

[Signature page for Mezzanine

Loan Agreement continued]

On the ____ day of August in the year 2023 before me, the undersigned, personally appeared Eyal Epstein, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument.

SCHEDULE A

LEGAL DESCRIPTION

SCHEDULE B

BUDGET

SCHEDULE C

COMMITTED AMOUNTS

BADF 953 Dean Street Lender LLC, as Administrative Agent and as a Lender:

EXHIBIT A

REQUEST FOR ADVANCE

BADF 953 Dean Street Lender LLC
c/o Aviv Arava Management LLC
123 5th Avenue, 4th Floor

New York, New York 10003
Attention:         Ben Harlev
         

Gentlemen:

Reference is made to that certain Mezzanine Loan Agreement, dated as of August 10, 2023 between BADF 953 Dean Street Lender LLC, as Administrative Agent, the Lenders party thereto, and the undersigned (as amended from time to time, the “Mezzanine Loan Agreement”). Terms not defined in this Request for Advance shall have the same meaning as in the Mezzanine Loan Agreement.

This Request for Advance shall constitute Request for Advance No. ___ under the Mezzanine Loan Agreement.

Current costs of the Improvements included in the Budget with respect to Building Loan Costs which the Borrower requests be funded from the Mezzanine Loan are $_________________ (the “Disbursement Request”). In accordance with the Mezzanine Loan Agreement, the undersigned hereby requests funding of the Disbursement Request. Information with respect to the Disbursement Request is as follows:

Attached to this Request for Advance are the following items:

(i)         a copy of the payment request to the Borrower or Senior Borrower from such Subcontractor or the General Contractor;

(ii)         copies of all invoices from each trade Subcontractor or the General Contractor to be paid from such advance; and

(iii)         a certification of each Subcontractor or the General Contractor, as the case may be, that (A) all work described in such payment request, or all materials supplied, as the case may be, has been performed or supplied, (B) any Subcontractor or the General Contractor whose work is covered by the requested advance has been paid for all work performed by such Subcontractor or the General Contractor, or shall be paid within thirty (30) days from the receipt of the amount in such payment request, and (C) lien waivers in the form of Exhibit B to the Mezzanine Loan Agreement shall be provided to Borrower and/or Senior Borrower from the General Contractor or such Subcontractor within 30 days from the date that such payment is made to the General Contractor or such Subcontractor.

In connection with the requested advance, the Borrower hereby certifies that the following are true and correct:

The undersigned requests that the requested advance be paid to Senior Borrower’s account at Valley National Bank (account number ___________________).

Date of this Request:         ___________
Advance No.:         ___________

EXHIBIT B

FORM OF LIEN WAIVER

KNOW ALL MEN BY THESE PRESENTS, that the Contractor, for the consideration described below received or to be received and in consideration of these presents, being a contractor or sub-contractor for certain improvements to the real property described on the attached Schedule A or relating to off-site improvements to be undertaken for the benefit of said real property do hereby certify:

1.         That the undersigned Contractor has received payment in the sum of $_______________ through ___________, ______ (the “Waiver Date”)1 for services rendered, work performed or materials furnished which constitutes all amounts due through said date for same (except for retainage of $______________);

2.         As of the Waiver Date, (i) there remains to be paid under our contract the sum of $________________ for work to be hereafter performed, and (ii) the work to be performed under our contract is ____% complete.

The undersigned Contractor hereby covenants and agrees not to claim or file a mechanic’s or other lien against the aforesaid real property or any part thereof for services rendered, work performed or materials furnished as described in (1) above, and does hereby waive and release all of the liens and claims of lien which it may have on the above-mentioned lot, land, buildings and appurtenance pursuant to the laws and Constitution of the State of New York by virtue of said services rendered, work performed or materials furnished as of the Waiver Date.

1  This date should be no earlier than the date of the last advance.

IN WITNESS WHEREOF, we have hereunto set our hands and seals, this _____ day of _____________, _____.

STATE OF NEW YORK         )

COUNTY OF ___________         ) ss.:

On the ____ day of _______________ in the year ____ before me, the undersigned, a notary public in and for said State, personally appeared ________________________________ personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument.

SCHEDULE A

Legal Description of Premises

EXHIBIT C

LETTER OF BORROWER’S GENERAL CONTRACTOR

[see attached]

EXHIBIT D

LETTER OF MAJOR SUBCONTRACTORS

[see attached]

EXHIBIT E

CERTIFICATE OF BORROWER’S ARCHITECT

[see attached]

EXHIBIT F

LETTER OF BORROWER’S ARCHITECT

[see attached]

Exhibit 10.6

 LINE OF CREDIT NOTE

(COMMITTED)

FOR VALUE RECEIVED, CLIPPER REALTY INC. (the “Borrower”), a corporation organized under the laws of the State of Maryland, with its principal place of business at 4611 Twelfth Avenue, Suite 1L, Brooklyn, New York 11219 promises to pay to the order of VALLEY NATIONAL BANK (the “Bank”), in lawful money and in immediately available funds, at its offices at 1 Pennsylvania Plaza, 46th Floor, New York, New York 10119, or at such other place as the holder hereof may designate, the principal sum of Five Million and 00/100 Dollars ($5,000,000.00), or such lesser amount as may be advanced and be outstanding to or for the benefit of the Borrower hereunder, together with interest accruing thereon from the date advanced until paid in full, as set forth herein.

1.    Line of Credit Advances. Borrower may from time to time prior to the Maturity Date borrow hereunder advances up to the Maximum Line of Credit Amount, subject to the terms and conditions of this Line of Credit Note (“Note”) and the other Loan Documents (as defined herein) (“Line of Credit”). Advances hereunder once repaid may not be re-borrowed. The “Maturity Date” shall mean the earlier to occur of (i) August 10, 2024, and (ii) the acceleration of the maturity of the amounts due hereunder upon an Event of Default (as defined herein), or such later date as may be designated by Bank in its sole discretion by written notice to Borrower. Borrower acknowledges and agrees that in no event will Bank be under any obligation to extend or renew the Line of Credit or this Note beyond the Maturity Date. The “Maximum Line of Credit Amount” shall mean $5,000,000.00. In no event shall the aggregate unpaid principal amount of advances under this Note (together with the sum of the undrawn stated amount of, plus unreimbursed draws under, any letters of credit issued under the Line of Credit) exceed, as of any date of determination, the lesser of (x) the face amount of this Note and (y) the Maximum Line of Credit Amount. In the event of any such occurrence, the amount of such excess shall be immediately due and payable without necessity of demand, and whether or not any Event of Default shall have occurred hereunder.

2.    Advance Procedures. If permitted by Bank, a request for advance may be made by facsimile or electronic mail, with such confirmation or verification (if any) in writing or otherwise as Bank may require in its discretion from time to time. Further, Borrower hereby agrees to indemnify and hold Bank harmless from and against any and all actual damages, losses, liabilities, costs and expenses (including reasonable attorneys’ fees and expenses) which may arise or be created by the acceptance of such facsimile and electronic requests or by the making of such advances. Bank shall have no obligation to determine whether any person requesting an advance is or has been authorized by Borrower to do so. Bank will enter on its books and records, which entry when made will be presumed correct absent manifest error, the date and amount of each advance, as well as the date and amount of each payment made by Borrower.

3.    Interest Rate. Amounts outstanding under this Note shall bear interest at a fluctuating rate per annum which shall be equal to one and one half percent (1.50%) above the Wall Street Journal Prime Rate in effect from time to time; provided, however, that in no event shall the interest rate applicable to advances hereunder be less than four and three quarters percent (4.75%) per annum. Interest hereunder will be calculated based on the actual number of days that principal is outstanding over a year of 360 days. In no event will the rate of interest hereunder exceed the maximum rate allowed by law. As used herein, “Wall Street Journal Prime Rate” or “Prime Rate” shall mean the rate of interest designated as the “Prime Rate” which appears in each publication of The Wall Street Journal under the designation entitled “Money Rates.”

This rate of interest fluctuates and is subject to change without prior notice. If and when the Wall Street Journal Prime Rate changes, the rate of interest on this Note will automatically change effective on the date of any such change, without notice to Borrower. In the event that the Wall Street Journal Prime Rate cannot be ascertained from publication of The Wall Street Journal, the rate of interest which shall be used in substitution thereof and until such time as the Wall Street Journal Prime Rate can be ascertained by reference to The Wall Street Journal shall be a rate equal to the average of the prime rate of interest announced from time to time by three (3) New York banks selected by Bank in its sole and absolute discretion.

4.      Payments.

4.1    Interest and Principal Payments. The Borrower shall pay accrued interest in arrears on the unpaid principal balance of this Note on the first (1st) day of each month during the term hereof, beginning with the payment due on September 1, 2023, and at maturity, whether by acceleration of this Note or otherwise, and after maturity, on demand until paid in full. Notwithstanding anything herein to the contrary, the outstanding principal balance of advances under the Line of Credit and any accrued but unpaid interest thereon shall be due and payable on the Maturity Date.

4.2    Manner of Payment. All payments by Borrower on account of principal, interest or fees hereunder shall be made in lawful money of the United States of America, in immediately available funds. If any payment under this Note shall become due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day and such extension of time shall be included in computing interest in connection with such payment. Borrower authorizes (but shall not require) Bank to debit any account maintained by Borrower with Bank, at any date on which a payment is due under this Note, in an amount equal to any unpaid portion of such payment. If any payment of principal or interest becomes due on a day on which Bank is closed (as required or permitted by law or otherwise), such payment shall be made not later than the next succeeding Business Day except as may be otherwise provided herein, and such extension shall be included in computing interest in connection with such payment. Each payment made on this Note (or received by Bank with respect to any other indebtedness owed by Borrower to Bank, or any affiliate thereof), shall be applied by Bank to amounts due under this Note (or with respect to any such other indebtedness) in such order or manner as Bank, in its discretion, elects, regardless of any instructions from Borrower to the contrary. Bank or any holder may accept late payments, or partial payments, even though marked “payment in full” or containing words of similar import or other conditions, without waiving any of its rights. For the purposes hereof, “Business Day” shall mean any day other than a Saturday or Sunday or a legal holiday on which commercial banks are authorized or required by law to be closed for business in New York, New York.

4.3    Default Rate. Upon maturity, whether by acceleration, demand or otherwise and, at Bank’s option, upon the occurrence of any Event of Default (as hereinafter defined) and during the continuance thereof, amounts outstanding under this Note shall bear interest at a rate per annum (based on the actual number of days that principal is outstanding over a year of 360 days) equal to 18% per annum but not more than the maximum rate allowed by law (the “Default Rate”). The Default Rate shall continue to apply whether or not judgment shall be entered on this Note. The Default Rate is imposed as liquidated damages for the purpose of defraying Bank’s expenses incident to the handling of delinquent payments, but is in addition to, and not in lieu of, Bank’s exercise of any rights and remedies hereunder, under the other Loan Documents or under applicable law, and any fees and expenses of any agents or attorneys which Bank may employ. In addition, the Default Rate reflects the increased credit risk to Bank of carrying a loan that is in default. Borrower agrees that the Default Rate is a reasonable forecast of just compensation for anticipated and actual harm incurred by Bank, and that the actual harm incurred by Bank cannot be estimated with certainty and without difficulty.

4.4    Prepayments. The indebtedness evidenced by this Note may be prepaid in whole or in part at any time without penalty.

4.5    Increased Costs; Yield Protection. On written demand, together with written evidence of the justification therefor, Borrower agrees to pay Bank all direct costs incurred, any losses suffered or payments made by Bank as a result of any Change in Law (hereinafter defined), imposing any reserve, deposit, allocation of capital or similar requirement (including without limitation, Regulation D of the Board of Governors of the Federal Reserve System) on Bank, its holding company or any of their respective assets relative to the Line of Credit. “Change in Law” means the occurrence, after the date of this Note, 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) by any governmental authority; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall 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 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.

5.     Right of Setoff; Deposit Accounts.

Borrower hereby authorizes Bank afater the occurenc and during the continuance of an Event of Default to set off against, and to appropriate and apply to the payment of, Borrower’s obligations and liabilities under this Note (whether matured or unmatured, fixed or contingent, liquidated or unliquidated), any and all amounts owing by Bank to Borrower (whether payable in U.S. dollars or any other currency, whether matured or unmatured, and in the case of deposits, whether general or special (except trust and escrow accounts), time or demand and however evidenced). Upon the occurenc and during the continuance of an Event of Default Borrower grants to Bank a security interest in all deposits and accounts maintained with Bank, together with all other personal property of the Borrower (including without limitation all money, accounts, general intangibles, goods, instruments, documents and chattel paper) which, or evidence of which, are now or at any time in the future shall come into the possession or under the control of or be in transit to Bank or any of its nominees or agents for any purpose, whether or not accepted for the purposes for which it was delivered, to secure the payment of all obligations and liabilities of Borrower to Bank under this Note. Every such right of setoff shall be deemed to have been exercised immediately upon the occurrence of an Event of Default hereunder without any action of Bank, although Bank may enter such setoff on its books and records at a later time.

6.     Other Loan Documents. This Note is issued in connection with a letter agreement between Borrower and Bank, dated on or before the date hereof, and certain other agreements and documents executed and/or delivered in connection therewith or referred to therein, the terms of which are incorporated herein by reference (as amended, modified or renewed from time to time, collectively, including this Note, the “Loan Documents”). The holder of this Note is entitled to the benefits of the Loan Documents and may enforce the agreements of the Borrower contained in the Loan Documents and exercise the remedies provided for by, or otherwise available in respect of, the Loan Documents, all in accordance with, and subject to the restrictions contained in, the terms of the Loan Documents.

7.     Default; Remedies.

7.1    Events of Default. The occurrence of any of the following shall constitute an “Event of Default” under this Note: (a) the failure of Borrower to pay when due any principal, interest, fee, charge, indemnity or other indebtedness owing hereunder or under any other Loan Document; (b) the occurenc of an Event of Default under the Credit Agreement, any Mortgage, the Building Loan Agreement or the Project Loan Agreement entered into between Dean Owner LLC (a wholly owned affiliate of Borrower) and Valley National Bank as Administrative Agent with respect to the $115,000,000 construction loan to Dean Owner LLC; (c) any default in the performance or observance of any covenant or agreement contained herein or in any other Loan Document and the lapse of any notice or cure period with respect thereto; or (d) the revocation or attempted revocation, in whole or in part, of this Note or any other Loan Document.

7.2    Remedies. Upon the occurrence of an Event of Default: (a) Bank shall be under no further obligation to make advances hereunder or under any other Loan Document; (b) if an Event of Default relates to the bankruptcy of Borrower shall occur, this Note and all outstanding principal and accrued interest hereunder together with any additional amounts payable hereunder or under any other Loan Documents, if not then due or payable on demand, shall be immediately due and payable without demand or notice of any kind; (c) if any other Event of Default shall occur, this Note and all outstanding principal and accrued interest hereunder together with any additional amounts payable hereunder or under any other Loan Documents, if not then due or payable on demand, at Bank’s option without demand or notice of any kind, may be accelerated and become immediately due and payable; (d) this Note will bear interest at the Default Rate from the date of the occurrence of the Event of Default; and (e) Bank may exercise from time to time any of the rights and remedies available under the Loan Documents or under applicable law, including all rights and remedies of a secured creditor under the Uniform Commercial Code as adopted and enacted and in effect from time to time in the applicable jurisdiction and all other applicable law.

8.     Miscellaneous.

8.1    Anti-Money Laundering/International Trade Law Compliance. Borrower represents and warrants to Bank, as of the date of this Note, the date of each advance of proceeds under the Line of Credit, the date of any renewal, extension or modification of the Line of Credit, and at all times until the Line of Credit has been terminated and all amounts thereunder have been indefeasibly paid in full, that: (a) no Covered Entity (i) is a Sanctioned Person; (ii) has any of its assets in a Sanctioned Country or in the possession, custody or control of a Sanctioned Person; or (iii) does business in or with, or derives any of its operating income from investments in or transactions with, any Sanctioned Country or Sanctioned Person in violation of any law, regulation, order or directive enforced by any Compliance Authority; (b) the proceeds of the Line of Credit will not be used to fund any operations in, finance any investments or activities in, or, make any payments to, a Sanctioned Country or Sanctioned Person in violation of any law, regulation, order or directive enforced by any Compliance Authority; (c) the funds used to repay the Line of Credit are not derived from any unlawful activity; and (d) each Covered Entity is in compliance with, and no Covered Entity engages in any dealings or transactions prohibited by, any laws of the United States, including but not limited to any Anti-Terrorism Laws. Borrower covenants and agrees that it shall immediately notify Bank in writing upon the occurrence of a Reportable Compliance Event.

As used herein: “Anti-Terrorism Laws” means any laws relating to terrorism, trade sanctions programs and embargoes, import/export licensing, money laundering or bribery, all as amended, supplemented or replaced from time to time; “Compliance Authority” means each and all of the (a) U.S. Treasury Department/Office of Foreign Assets Control, (b) U.S. Treasury Department/Financial Crimes Enforcement Network, (c) U.S. State Department/Directorate of Defense Trade Controls, (d) U.S. Commerce Department/Bureau of Industry and Security, (e) U.S. Internal Revenue Service, (f) U.S. Justice Department, and (g) U.S. Securities and Exchange Commission; “Covered Entity” means Borrower, its affiliates and subsidiaries, all Credit Parties and other guarantors, pledgors of collateral, all owners of the foregoing, and all brokers or other agents of Borrower acting in any capacity in connection with the Line of Credit; “Reportable Compliance Event” means that any Covered Entity becomes a Sanctioned Person, or is indicted, arraigned, investigated or custodially detained, or receives an inquiry from regulatory or law enforcement officials, in connection with any Anti-Terrorism Law or any predicate crime to any Anti-Terrorism Law, or self-discovers facts or circumstances implicating any aspect of its operations with the actual or possible violation of any Anti-Terrorism Law; “Sanctioned Country” means a country subject to a sanctions program maintained by any Compliance Authority; and “Sanctioned Person” means any individual person, group, regime, entity or thing listed or otherwise recognized as a specially designated, prohibited, sanctioned or debarred person or entity, or subject to any limitations or prohibitions (including but not limited to the blocking of property or rejection of transactions), under any order or directive of any Compliance Authority or otherwise subject to, or specially designated under, any sanctions program maintained by any Compliance Authority.

8.2    Indemnity. Borrower agrees to indemnify each of Bank, each legal entity, if any, who controls, is controlled by or is under common control with Bank, and each of their respective directors, officers and employees (the “Indemnified Parties”), and to defend and hold each Indemnified Party harmless from and against any and all claims, damages, losses, liabilities and expenses (including all fees and charges of internal or external counsel with whom any Indemnified Party may consult and all expenses of litigation and preparation therefor) which any Indemnified Party may incur or which may be asserted against any Indemnified Party by any person, entity or governmental authority (including any person or entity claiming derivatively on behalf of Borrower), whether in connection with or arising out of or relating to (a) the matters referred to in this Note or in the other Loan Documents or the use of any advance hereunder, (b) any breach of a representation, warranty or covenant by Borrower or (c) any suit, action, claim, proceeding or governmental investigation, pending or threatened, whether based on statute, regulation or order, or tort, or contract or otherwise, before any court or governmental authority; provided, however, that the foregoing indemnity agreement shall not apply to any claims, damages, losses, liabilities and expenses solely attributable to an Indemnified Party’s gross negligence or willful misconduct, as determined by a final and non-appealable decision of a court of competent jurisdiction. The indemnity agreement contained in this Section shall survive the termination of this Note, payment of any advance hereunder and the assignment of any rights hereunder, or entry of judgment hereon. Borrower may participate at its expense in the defense of any such action or claim.

8.3    Information. So long as this Note shall remain outstanding, and without limitation of any provision of any Loan Document, Borrower agrees to (a) furnish to Bank, with reasonable promptness, such financial statements, tax returns or other information concerning the business, operations, properties and condition, financial or otherwise, of Borrower as Bank may reasonably request from time to time and (b) at any reasonable time and from time to time, permit Bank or any of its agents or representatives to examine and make copies of and abstracts from its records and books of account, visit its properties and discuss its affairs, finances and accounts with any of its officers, directors or independent accountants.

8.4    Notices. All notices, requests and demands which any party is required or may desire to give to any other party under any provision of this Note must be in writing (except as may be agreed otherwise above with respect to borrowing requests) delivered to Borrower at its address first set forth above, to Bank at its address at 1 Pennsylvania Plaza, 46th Floor, New York, New York 10119, Attention: Jeffrey Puchin, First Vice President, with a copy of any notices pursuant to Section 8.1 to Valley National Bank, 1 Pennsylvania Plaza, 46th Floor, New York, NY 10119, Attention: Associate General Counsel – Lending, or to such other address as any party may designate by written notice to all other parties. Each such notice, request and demand shall be deemed given or made as follows: (a) if sent by hand delivery, upon delivery; (b) if sent by mail, upon the earlier of the date of receipt or three (3) days after deposit in the U.S. mail, first class and postage prepaid; and (c) if sent by any other means, one day after transmission or shipment. Without limiting the foregoing, first-class mail, facsimile transmission and commercial courier service are hereby agreed to as acceptable methods for giving notices hereunder.

8.5    No Waiver. No failure on the part of Bank to exercise, and no delay in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise by Bank of any right hereunder preclude any other or further exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any other remedies provided hereunder or by any other instrument or document or under applicable law.

8.6    Costs and Expenses. Borrower shall reimburse Bank immediately upon demand the full amount of all actual reasonable out-of -pocket payments, advances, charges, costs and expenses, whether or not collection is instituted hereon, including reasonable attorneys’ fees (to include outside counsel fees and all allocated costs of Bank’s in-house counsel), expended or incurred by Bank in connection with (a) the negotiation and preparation of this Note and the other Loan Documents, Bank’s continued administration hereof and thereof, and the preparation of amendments and waivers hereto and thereto, including without limitation all costs incidental thereto and costs of preservation of collateral, (b) the enforcement of Bank’s rights and/or the collection of any amounts which become due to Bank under any of the Loan Documents, and (c) the prosecution or defense of any action in any way related to any of the Loan Documents, including without limitation, any action for declaratory relief, whether incurred at the trial or appellate level, in any civil litigation, lawsuit, arbitration proceeding or otherwise, and including any of the foregoing incurred in connection with any bankruptcy proceeding (including without limitation, any adversary proceeding, contested matter or motion brought by Bank or any other person) relating to Borrower or any other person or entity.

8.7    Amendments, Modifications, Etc. No amendment, modification or waiver of any provision of this Note nor consent to any departure by the Borrower therefrom shall be effective unless the same shall be in writing and signed by Bank or other party to be charged, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. Notwithstanding the foregoing, Bank may modify this Note for the purposes of completing missing content or correcting erroneous content, without the need for a written amendment, provided that Bank shall send a copy of any such modification to the Borrower (which may be sent by electronic mail).

8.8    Successors and Assigns. This Note and the terms hereof shall be binding upon and inure to the benefit of Bank and its successors and assigns, including subsequent holders hereof, and Borrower and its legal representatives, successors and assigns; provided, however, that Borrower may not assign or transfer its interests or rights hereunder (whether by operation of law or otherwise) without Bank’s prior written consent, which Bank may withhold in its sole discretion. Bank reserves the right to sell, assign, transfer, negotiate or grant participations in all or any part of, or any interest in, Bank’s rights and benefits hereunder and under any or all of the other Loan Documents. In connection therewith, Bank may disclose all documents and information which Bank now has or hereafter may acquire relating to any credit accommodation subject hereto, Borrower or its business, or any collateral pledged to secure the obligations evidenced hereby.

8.9    Certain Taxes. The principal of and the interest on the obligations due under this Note, and any other amounts owed hereunder or under any other Loan Document for fees, costs, or otherwise, are payable in lawful money of the United States of America without deduction for or on account of any present or future tax, duty or other charge levied or imposed on this Note or other Loan Document or the proceeds hereof or the holder hereof by any government or any political subdivision thereof or by any other jurisdiction, or by any political subdivision thereof, from which any payment due with respect thereto is remitted or on account of any other restrictions and conditions of whatever nature.  If any such tax, duty or other charge is required to be deducted or withheld by law or regulation from any amount payable hereunder or under any other Loan Document, Borrower shall pay Bank such additional amounts (including any penalties and interest thereon) as may be necessary so that the amount actually received by Bank is equal to the full amount payable hereunder or under such other Loan Document had no such withholding or deduction been made.  Borrower shall furnish to Bank all tax receipts for withholding taxes, if any, paid on behalf of Bank within sixty (60) days of the payment of such tax.  Should Borrower not furnish the tax receipts within ninety (90) days of the due date of payment of such taxes, Borrower shall pay Bank a tax reimbursement equivalent to the amount of withholding tax due.

8.10    Severability. The provisions of this Note are severable, and if any provision shall be held invalid or unenforceable in whole or in part in any jurisdiction, then such invalidity or unenforceability shall not in any manner affect such provision in any other jurisdiction or any other provision of this Note in any jurisdiction.

8.11    Limitation of Liability. To the fullest extent permitted by applicable law, Borrower shall not assert, and hereby waives any claim against Bank, on any theory of liability, for special, indirect, consequential or punitive damages arising out of, in connection with or as a result of, this Note, any related Loan Documents, the transactions contemplated hereby or thereby or any loan advance or letter of credit or the use of the proceeds thereof.

8.12    GOVERNING LAW.  THIS NOTE WAS NEGOTIATED IN THE STATE OF NEW YORK, AND MADE BY BORROWER AND ACCEPTED BY BANK IN THE STATE OF NEW YORK, AND THE PROCEEDS OF THIS NOTE WERE DISBURSED FROM THE STATE OF NEW YORK, WHICH STATE THE PARTIES AGREE HAS A SUBSTANTIAL RELATIONSHIP TO THE PARTIES AND TO THE UNDERLYING TRANSACTION EMBODIED HEREBY. IN ALL RESPECTS, INCLUDING, WITHOUT LIMITATION, MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS NOTE AND THE OBLIGATIONS ARISING HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE (WITHOUT REGARD TO ANY PRINCIPLES OF CONFLICT OF LAWS WHICH WOULD OR MIGHT MAKE THE LAWS OF ANY OTHER JURISDICTION APPLICABLE) AND ANY APPLICABLE LAW OF THE UNITED STATES OF AMERICA.  TO THE FULLEST EXTENT PERMITTED BY LAW, BORROWER HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY CLAIM TO ASSERT THAT THE LAW OF ANY OTHER JURISDICTION GOVERNS THIS NOTE.

8.13    VENUE; JURISDICTION.  ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST BANK OR BORROWER ARISING OUT OF OR RELATING TO THIS NOTE MAY AT BANK’S OPTION BE INSTITUTED IN ANY FEDERAL OR STATE COURT IN THE CITY OF NEW YORK, COUNTY OF NEW YORK, OR IN ANY STATE OR FEDERAL COURT IN THE STATE OF NEW YORK, WHICH SHALL HAVE EXCLUSIVE JURISDICTION IN ANY SUIT, ACTION OR PROCEEDING BETWEEN BORROWER AND BANK, BORROWER WAIVES ANY OBJECTIONS WHICH IT MAY NOW OR HEREAFTER HAVE BASED ON VENUE AND/OR FORUM NON CONVENIENS OF ANY SUCH SUIT, ACTION OR PROCEEDING, BETWEEN BORROWER AND BANK, AND HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT.  BORROWER DOES HEREBY AGREE THAT SERVICE OF PROCESS UPON BORROWER AT ITS NOTICE ADDRESS AS SET FORTH IN SECTION 8.4 ABOVE (OR SUCH OTHER NEW NOTICE ADDRESS ESTABLISHED BY BORROWER HEREUNDER) BY REGISTERED MAIL, RETURN RECEIPT REQUESTED, SHALL BE DEEMED IN EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON BORROWER IN ANY SUCH SUIT, ACTION OR PROCEEDING AT THE TIME RECEIVED OR REFUSED BY BORROWER AND SHALL CONSTITUTE “PERSONAL DELIVERY” THEREOF AS DEFINED IN SECTION 308(1) OF NEW YORK’S CIVIL PRACTICE LAW AND RULES (OR ANY AMENDMENT THERETO).  NOTHING CONTAINED HEREIN SHALL AFFECT THE RIGHT OF BANK TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST BORROWER IN ANY OTHER JURISDICTIONS.

8.14    USA PATRIOT Act Notice. Bank hereby notifies you that pursuant to the requirements of the USA Patriot Act, Title III of Pub. L. 107-56 (signed into law October 26, 2001) (the “Patriot Act”), Bank is required to obtain, verify and record information that identifies Borrower and any other Credit Party, which information includes the name, address, tax identification number and other information regarding Borrower and such Credit Party that will allow Bank to identify Borrower and such Credit Party in accordance with the Patriot Act. In that connection, Bank may also request corporate formation documents, or other forms of identification, to verify information provided.

8.15    Further Assurances; Corrections of Defects. Borrower intending to be legally bound hereby, agrees to promptly correct any defect, error or omission, upon the request of Bank, which may be discovered in the contents of any of the Loan Documents, or in the execution or acknowledgement thereof, and Borrower will execute, or re-execute, acknowledge and deliver such further instruments and do such further acts as may be necessary or as may be reasonably requested by Bank to satisfy the terms and conditions of the Loan Documents, and all documents executed in connection therewith, including but not limited to the recording, filing or perfecting of any document given for securing and perfecting liens, mortgages, security interests and interests to secure the obligations evidenced by the Loan Documents.

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8.16    WAIVER OF JURY TRIAL. BORROWER (a) KNOWINGLY, VOLUNTARILY, INTENTIONALLY AND IRREVOCABLY WAIVES EACH RIGHT BORROWER MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO, AND IN, ANY ACTION OR OTHER LEGAL PROCEEDING OF ANY NATURE, RELATING TO (i) THIS NOTE, ANY CREDIT ACCOMMODATION PROVIDED WITH RESPECT HERETO, OR ANY OTHER LOAN DOCUMENT, (ii) ANY TRANSACTION CONTEMPLATED IN THIS NOTE OR ANY SUCH LOAN DOCUMENTS OR (iii) ANY NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT OF THIS NOTE, ANY OF THE OBLIGATIONS EVIDENCED HEREBY, ANY COLLATERAL THEREFOR OR ANY OTHER LOAN DOCUMENT AND (b) CERTIFIES THAT (i) NEITHER BANK, ANY AFFILIATE OF BANK NOR ANY REPRESENTATIVE OF BANK OR ANY SUCH AFFILIATE HAS REPRESENTED TO BORROWER THAT BANK OR ANY SUCH AFFILIATE WILL NOT SEEK TO ENFORCE THE WAIVER MADE BY BORROWER IN THIS PARAGRAPH, AND (ii) HE, SHE OR IT HAS BEEN REPRESENTED (OR HAS HAD THE OPPORTUNITY TO BE REPRESENTED) IN THE SIGNING OF THIS NOTE AS NECESSARY AND APPROPRIATE BY INDEPENDENT LEGAL COUNSEL.

Borrower acknowledges that he, she, or it has read and understood all the provisions of this Note, including the waiver of jury trial and has been advised by counsel as necessary or appropriate.

IN WITNESS WHEREOF, the undersigned has executed this Line of Credit Note as of the date first written above.