WIXLIB

of a Default, Lender agrees that it will not take any of the aforementioned actions if Equity Provider(without any obligation of Equity Provider to do so) (A) takes all action and pays all amountsnecessary to cure such Default within thirty (30) days after Equity Provider receives written noticethereof from Lender at the address set forth in Section 18 hereof, except that if such Default does notinvolve the payment of money and is not reasonably capable of being cured or remedied within thirty(30) days and Equity Provider has notified Lender that it has elected to cure such Default and hascommenced to cure such Default within such thirty (30) day period and is diligently proceeding tocure such Default, the cure period shall be extended for a reasonable period (not to exceed ninety(90) days after Equity Provider receives such written notice from Lender) to complete such cure;provided, however, Equity Provider’s cure rights under this clause (A) shall not apply to a Defaultwhich is listed on Schedule I attached hereto and incorporated herein by this reference; or (B) agreesto purchase from Lender the Loan Documents within such thirty (30) day period for an amount (the“Note Purchase Amount”) equal to the outstanding balance of all principal, accrued interest at thenondefault rate and other amounts owed thereunder (but excluding any default interest, late paymentpenalties or other such delinquencies) plus all attorneys’ fees incurred by Lender to realize upon itscollateral for the Loan (but excluding costs of filing suit against Borrower or any guarantor for anydeficiency), in which event Lender agrees to sell and deliver to Equity Provider, without recourseor warranty, such Loan Documents upon receipt of such payment. After any such sale or delivery,Lender shall have no further obligations to Borrower, including, without limitation, any obligationto make any further advances to Borrower. To the extent the Note Purchase Amount is less than thefull amount owed by Borrower under the Loan Documents, neither Borrower nor any guarantor ofthe Loan shall be released from its obligation to pay to Lender the difference and Lender shall haveall rights and remedies against Borrower and such guarantor (but not the Project) provided in theLoan Documents for the difference notwithstanding the sale of the Loan Documents to EquityProvider in accordance with this Section 2.(a). In the event Equity Provider cures such a Default asprovided above, Borrower shall reimburse Equity Provider for all reasonable costs and expensesactually incurred by Equity Provider in curing such Default together with interest at the Past DueRate (as defined in the Note) from the date incurred until paid, immediately upon written demandfrom Equity Provider to Borrower. Equity Provider shall be entitled to offset any such amountsagainst any sums payable by Equity Provider to Borrower under the Purchase Agreement or anydocument attached as an exhibit to the Purchase Agreement, to the extent such sums exceed the NotePurchase Amount. The amounts paid by Equity Provider to cure a Default shall be applied inaccordance with the Loan Documents. Any sums paid by Borrower to Equity Provider under thisSection 2.(a) shall not be considered an “Allowable Development Cost”, as defined in the PurchaseAgreement, to the extent such sums constitute costs or damages that would not have been incurredbut for such Default.(b)If Equity Provider shall fail to cure such Default within such cure period orshall fail to make such purchase within such thirty (30) day period, then Lender or another PermittedOwner (defined below) shall have the right to take and pursue all of its rights and remedies underthe Loan Documents, including but not limited to those set forth herein. As used herein, “PermittedOwner” means Lender or any entity to whom Lender has assigned all of its interest under the LoanDocuments in accordance with Section 2.(a) above. Without limiting the foregoing, PermittedOwner may, at its option, assume all of Borrower’s Obligations (as defined below) if either(1) Permitted Owner delivers written notice to Equity Provider, within thirty (30) days after theexpiration of the cure period described in Section 2.(a) above, expressly stating its intention to3

exercise its rights under this Agreement, or (2) within thirty (30) days after acquiring title to theProject through foreclosure, trustee’s sale or deed in lieu thereof, Permitted Owner commences thecompletion of the Project and delivers to Equity Provider written notice of Permitted Owner’s intentto exercise its rights under this Agreement. Upon assuming Borrower’s Obligations as providedherein, Permitted Owner: (A) shall be entitled to all of the Borrower’s rights, remedies and benefitsunder the Purchase Agreement, including the right to enforce the obligation of Equity Provider toacquire the Project (but excluding Borrower’s rights to the Incentive Development Fee underSection 3.(d) of the Purchase Agreement, it being agreed by all parties that in such event,Section 3.(d) of the Purchase Agreement shall be null and void and no Incentive Development Feeshall be payable to Borrower or Permitted Owner, and further excluding Borrower’s and/or PermittedOwner’s right to enter into the Management Agreement pursuant to Sections 8.(b)(25) and 8.(c)(5)of the Purchase Agreement, it being agreed by all parties that in such event Equity Provider shall notbe required to enter into such Management Agreement with Borrower or Permitted Owner and thatno Incentive Management Fees (as defined in such Management Agreement) shall be payable toBorrower or Permitted Owner and that Equity Provider shall be free to enter into a managementagreement for the Project with another party), only upon the timely performance of all theBorrower’s Obligations and satisfaction of all of the conditions precedent to Equity Provider’sobligations contained in the Purchase Agreement as modified by the applicable terms of thisAgreement; or (B) may exercise its rights pursuant to Section 2.(c) hereof. Upon assuming all ofBorrower’s Obligations and electing to exercise its rights under this Section 2.(b), Permitted Ownershall cure all defaults of Borrower (other than Waived Defaults (as defined below) and defaults byBorrower arising from defaults by Borrower under the Loan Agreement and/or related documents),as set forth in Section 13.(a) of the Purchase Agreement, then existing and perform all of Borrower’sObligations in the time and manner specified by the Purchase Agreement as modified by theapplicable terms of this Agreement. Without in any way limiting Permitted Owner’s other rights andremedies pursuant to the Loan Documents and applicable law, Borrower agrees to cooperate withPermitted Owner in the exercise of Permitted Owner’s rights pursuant to this Section 2.(b),notwithstanding any disputes, defenses, claims, counterclaims or other matters arising from or in anyway related to the Purchase Agreement or the Loan. Neither Lender nor any other Permitted Ownershall have any liability to Borrower for, or in connection with, any such demand or requirement thatBorrower perform under the Purchase Agreement. The term “Waived Defaults” means (i) anybreach by Borrower of any representation or warranty in the Purchase Agreement that relates solelyto Borrower or any partner of Borrower, (ii) any breach by Borrower of any covenant contained inSection 5 of the Purchase Agreement so long as Permitted Owner complies with such covenant afterthe date Permitted Owner acquires fee simple title to the Project through foreclosure, trustee’s sale,or deed in lieu thereof or otherwise effectively controls the Project (such date is referred to hereinas the “Transfer Date”), and (iii) any other default or breach by Borrower so long as such defaultor breach is cured by Permitted Owner prior to Closing. Upon Permitted Owner’s assumption of allof Borrower’s Obligations, Equity Provider shall be deemed to have waived, for purposes of thisAgreement only, all Waived Defaults that have occurred prior to such date; provided, however, suchwaiver of the Waived Defaults shall not affect or impair any liability of Borrower to Equity Providerunder the Purchase Agreement or any documents executed in connection therewith.(c)In addition to the rights of Permitted Owner pursuant to Section 2.(b) above,in the event Permitted Owner: (1) assumes Borrower’s Obligations as provided in Section 2.(b)above; (2) acquires title to the Project through foreclosure, trustee’s sale or deed in lieu thereof; and4

(3) performs all of the Borrower’s Obligations and satisfies all of the conditions precedent set forthin Section 6 of the Purchase Agreement (other than Section 6.(d) of the Purchase Agreement, to theextent applicable to Borrower, and Section 6.(e) of the Purchase Agreement, to the extent ofrepresentations and warranties unique to Borrower such as Borrower’s organization, existence andauthority, except as provided in Section 2.(d) below) prior to the Extended Date (hereinafterdefined), Equity Provider, upon Permitted Owner’s written request, shall purchase the Project fromPermitted Owner at a purchase price (the “Purchase Price”) equal to the lesser of (x) amountsfunded by Lender pursuant to and in accordance with the Approved Budget (as defined in thePurchase Agreement) (including any amendments to the Approved Budget either approved by EquityProvider or for which no approval by Equity Provider is required under the Purchase Agreement),or (y) , if the following conditions precedent have been satisfied:(A)Permitted Owner must have completed its acquisition of fee simpletitle to the Project through foreclosure, trustee’s sale, or deed in lieu thereof. Equity Provideragrees that the date by which Permitted Owner shall use commercially reasonable efforts tocomplete the Project under Section 5.(d) of the Purchase Agreement and the last day forEquity Provider to purchase the Project from Permitted Owner pursuant to the PurchaseAgreement may be extended by Permitted Owner (i) up to ninety (90) days to allowPermitted Owner to perform Borrower’s Obligations and satisfy the conditions precedent setforth in Section 6 of the Purchase Agreement as required under this Section 2.(c), (ii) up toninety (90) more days if Permitted Owner, despite diligence in attempting to acquire title tothe Project through foreclosure, trustee’s sale, or deed in lieu thereof, shall be restricted orprohibited from acquiring such title under applicable laws (including by way of example, butnot limitation, restraining orders, automatic stay, and other restrictions applicable toPermitted Owner as a consequence of any bankruptcy filing or other debtor relief laws) and(iii) to the extent applicable, by any cure period used by Equity Provider to cure or attemptto cure any Default pursuant to Section 2.(a) above (any such extended date under thisSection 2.(c)(3)(A) is herein called the “Extended Date”);(B)Upon acquisition by Equity Provider, Borrower shall have no right,title or interest in the Project;(C)Permitted Owner indemnifies, defends and holds Equity Providerharmless from any loss, cost, expense or damage actually incurred by Equity Providerresulting from (x) a judgment of a court of competent jurisdiction that the transfer of theProject or Permitted Owner’s acquisition of the Project was a transfer made with actual intentto delay, hinder or defraud creditors (“Actual Fraud and Collusion Claim”), or otherwisea fraudulent conveyance or transfer, or (y) a judgment that the transfer or acquisitionpursuant to which Permitted Owner or Equity Provider acquired the Project involved actualfraud or collusion, was a fraudulent conveyance or was irregularly conducted;(D)Permitted Owner agrees to pay the reasonable attorneys’ fees and costsincurred by Equity Provider in connection with any Actual Fraud and Collusion Claim.Borrower agrees to defend all Actual Fraud and Collusion Claims arising out of a transferof the Project from Borrower and to pay and reimburse, on a quarterly basis, all reasonableattorneys’ fees and costs of Permitted Owner and Equity Provider in the defense of any5

Actual Fraud and Collusion Claim arising out of a transfer of the Project from Borrowerwhether such claims are brought to judgment or Permitted Owner or Equity Provider prevailand whether Permitted Owner has any obligation to Equity Provider pursuant to the previoussentence; and(E)Permitted Owner delivers or causes to be delivered, as applicable, toEquity Provider at the closing all of the items required by Section 8.(b) of the PurchaseAgreement, as if Permitted Owner were the Seller under the Purchase Agreement, except theitems referred to in Sections 8.(b)(3) and 8.(b)(25) of the Purchase Agreement, provided thatthe documents required to be delivered pursuant to the Purchase Agreement shall beamended by Permitted Owner and Equity Provider, each acting reasonably and in good faith,to take into account that the Project is being conveyed by Permitted Owner to EquityProvider and, if applicable, that Permitted Owner or its agents and contractors havecompleted the Project.(d)As used herein, “Borrower’s Obligations” shall mean all duties, rights,liabilities and obligations of Borrower under the Purchase Agreement arising after the Transfer Dateother than (1) the duties, liabilities, and obligations that because of their personal nature can only beperformed by Borrower, including, but not limited to, provisions of such documents relating tobankruptcy of Borrower, (2) any duty, liability or obligation of Borrower under the PurchaseAgreement with respect to a breach or violation of the terms of a Tenant Lease (as defined in thePurchase Agreement) by a tenant thereunder, (3) the obligation of Borrower to pay to EquityProvider the Construction Delinquency Payment (as defined in the Purchase Agreement), or (4) anyduty, liability or obligation of Borrower arising under the Purchase Agreement should anytransaction provided for by the Purchase Agreement constitute a prohibited transaction under, orother violation of, the Employee Retirement Income Security Act of 1974, as amended, anyregulation promulgated thereunder, or any other applicable federal or state law governing retirementor pension plans. In addition, upon the assumption by Permitted Owner of Borrower’s Obligations,(A) those covenants, representations and warranties of Borrower that refer to Borrower (including,for example, the nature of Borrower, the financial status of Borrower, deliveries by Borrower,Borrower’s knowledge and the ownership of Borrower) shall be modified by Permitted Owner (andLender if Permitted Owner is not Lender) and Equity Provider (each acting reasonably and in goodfaith) to refer to Permitted Owner (and Lender if Permitted Owner is not Lender) and PermittedOwner’s permitted successors and assigns hereunder, (B) the covenants, representations andwarranties referred to in Exhibit E hereto shall be modified or qualified as set forth on Exhibit E, and(C) Permitted Owner shall have no obligation to deliver any agreement from in orderto satisfy any condition under Section 6.(i) of the Purchase Agreement. Notwithstanding anyprovision of the Purchase Agreement to the contrary, Lender shall have the right to assign its rightsunder this Agreement and the Purchase Agreement to any Permitted Owner. Notwithstanding theforegoing or the assumption of any of Borrower’s Obligations, in no event shall Lender or any otherPermitted Owner or their respective successors or assigns be liable to Equity Provider for damagesor other relief resulting from, or in connection with, the failure of Borrower, Lender or any otherPermitted Owner, or their respective successors and assigns to satisfy the conditions and otherwiseperform the obligations necessary to cause the sale and purchase of the Project contemplated herebyand by the Purchase Agreement; provided, however, that (D) upon closing of a sale to EquityProvider pursuant to Section 2.(c) above, Permitted Owner shall only be responsible for such6

indemnities, liabilities and obligations which (i) arise from and after the date upon which PermittedOwner assumes Borrower’s Obligations in connection with and pursuant to the Purchase Agreement,(ii) constitute Borrower’s Obligations, and (iii) survive the closing under the Purchase Agreement;(E) the foregoing shall not limit any rights of Equity Provider against Borrower; (F) if PermittedOwner assumes Borrower’s Obligations, Permitted Owner shall be liable to the extent of EquityProvider’s reasonable actual out-of-pocket costs arising directly from and after the date upon whichPermitted Owner assumes Borrower’s Obligations (including inspection costs, attorney’s fees andother consultant’s fees) if Permitted Owner does not satisfy the conditions and perform theobligations necessary to cause Equity Provider to purchase the Project; and (G) Permitted Owner’sliability to Equity Provider under this Agreement, the Purchase Agreement and the documentsexecuted and delivered by Permitted Owner at the Closing shall not exceed 2,000,000 in theaggregate.(e)Equity Provider agrees that all costs set forth in the Approved Budgetconstitute “Allowable Development Costs”. If Lender advances the proceeds of the Loan to paycosts in accordance with the Approved Budget, subject to the limitations set forth in the PurchaseAgreement regarding the reallocation of line items in the Approved Budget, then all such costs shallconstitute “Allowable Development Costs”. If Lender or another Permitted Owner assumesBorrower’s Obligations and sells the Project to Equity Provider in accordance with Section 2, thepurchase price shall be the Purchase Price and Lender shall have no obligation to establish“Allowable Development Costs”.3.Power of Attorney. Upon the occurrence and continuation of a Default, Lender shallhave the right (and Borrower hereby irrevocably constitutes and appoints Lender as its attorney-infact, which power is coupled with an interest, to do so) to demand, receive and enforce Borrower’srights with respect to the Purchase Agreement, to give appropriate receipts, releases and satisfactionsfor and on behalf of Borrower, and to do any and all acts in the name of Borrower or in the name ofLender with the same force and effect as Borrower could do if this Agreement had not been made.4.Representations, Warranties and Covenants of Borrower. As to items 4.(a)through 4.(g) below Borrower hereby certifies, represents and warrants to Lender, and as to items4.(h) through 4.(j) below Borrower covenants and agrees with Lender, that:(a)The Purchase Agreement has not been altered, amended or modified and isin full force and effect.(b)Borrower has full title and right to assign its interest in the PurchaseAgreement to Lender pursuant to this Agreement.(c)No consent or approval of any person is required to be obtained by Borrowerfor the execution and delivery by Borrower of this Agreement.(d)Borrower has delivered to Lender a true and complete copy of the executedcounterpart of the Purchase Agreement.7

(e)Except for the assignment by Borrower in this Agreement and the LoanDocuments, no other assignment of all or any part of any interest of Borrower in and to the PurchaseAgreement has been made by Borrower which remains in effect.(f)There exists no monetary default under the Purchase Agreement, nor, to thebest knowledge of Borrower, any nonmonetary default or any event or conditions which, with noticeor the passage of time or both, would constitute such a monetary or nonmonetary default or wouldresult in the termination of the Purchase Agreement or would give any party thereto the right tocancel the Purchase Agreement.(g)N

3. Agreement to modify the "take out" agreement (i.e. the permanent commitment or the agreement to purc hase) if the Construction Lender succeeds to the position of the Borrower. 4. Provision that no assumption by the Construction Lender o f the "take out" agreement unless and until there is an affirmative written assumption agreement. C.