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33. Form of Permanent Amended and Restated Funding Loan Agreement - Vista Breeze 4856-5616-9347.5 AMENDED AND RESTATED FUNDING LOAN AGREEMENT (Permanent Phase) among CITIBANK, N.A., as Funding Lender HOUSING FINANCE AUTHORITY OF MIAMI-DADE COUNTY, FLORIDA, as Governmental Lender and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Fiscal Agent Relating to Vista Breeze 175 S. Shore Drive and 280 S. Shore Drive, in the City of Miami Beach, Miami-Dade County, Florida Loan Principal Amount: $____________ Dated as of ______, 202_ (Conversion Date) 4856-5616-9347.5 TABLE OF CONTENTS Page ARTICLE I DEFINITIONS; PRINCIPLES OF CONSTRUCTION Section 1.1. Definitions. ......................................................................................................................... 2 Section 1.2. Effect of Headings and Table of Contents. ....................................................................... 11 Section 1.3. Date of Funding Loan Agreement. ................................................................................... 11 Section 1.4. Designation of Time for Performance. ............................................................................. 11 Section 1.5. Interpretation. .................................................................................................................... 11 ARTICLE II TERMS; GOVERNMENTAL LENDER NOTE Section 2.1. Terms. ............................................................................................................................... 11 Section 2.2. Form of Governmental Lender Note. ................................................................................ 13 Section 2.3. Execution and Delivery of Governmental Lender Note. .................................................. 13 Section 2.4. Authentication. .................................................................................................................. 13 Section 2.5. Registration and Transfer of Governmental Lender Note. ............................................... 13 Section 2.6. Restrictions on Transfer. ................................................................................................... 14 ARTICLE III PREPAYMENT Section 3.1. Prepayment of the Governmental Lender Note from Prepayments Under the Permanent Phase Borrower Note. ....................................................................................................... 15 Section 3.2. Notice of Prepayment. ...................................................................................................... 15 ARTICLE IV SECURITY Section 4.1. Security for the Funding Loan. ......................................................................................... 15 Section 4.2. Delivery of Security. ......................................................................................................... 16 ARTICLE V LIMITED LIABILITY Section 5.1. Source of Payment of Funding Loan, the Governmental Lender Note and Other Obligations. ....................................................................................................................... 17 Section 5.2. Exempt from Individual Liability. .................................................................................... 17 Section 5.3. Revenue Obligation. ......................................................................................................... 18 ARTICLE VI RESERVED ARTICLE VII FUNDS AND ACCOUNTS Section 7.1. Authorization to Create Funds and Accounts. .................................................................. 19 Section 7.2. Investment of Funds. ......................................................................................................... 19 Section 7.3. Establishment of Funds and Accounts. ............................................................................. 20 Section 7.4. Loan Payment Fund. ......................................................................................................... 20 ii 4856-5616-9347.5 Section 7.5. Administration Fund. ........................................................................................................ 21 Section 7.6. Project Fund. ..................................................................................................................... 21 Section 7.7. Rebate Fund. ..................................................................................................................... 21 Section 7.8. Amounts Remaining in Funds. ......................................................................................... 22 ARTICLE VIII REPRESENTATIONS AND COVENANTS Section 8.1. General Representations. .................................................................................................. 22 Section 8.2. No Encumbrance on Security. .......................................................................................... 23 Section 8.3. Repayment of Funding Loan. ........................................................................................... 23 Section 8.4. Servicer. ............................................................................................................................ 23 Section 8.5. Borrower Loan Agreement Performance. ......................................................................... 23 Section 8.6. Maintenance of Records; Inspection of Records. ............................................................. 23 Section 8.7. Tax Covenants. ................................................................................................................. 24 Section 8.8. Performance by the Borrower. .......................................................................................... 25 Section 8.9. Maintenance of Records. .................................................................................................. 25 ARTICLE IX DEFAULT; REMEDIES Section 9.1. Events of Default. ............................................................................................................. 25 Section 9.2. Acceleration of Maturity; Rescission and Annulment. ..................................................... 26 Section 9.3. Additional Remedies; Funding Lender Enforcement. ...................................................... 26 Section 9.4. Application of Money Collected. ...................................................................................... 28 Section 9.5. Remedies Vested in Funding Lender. ............................................................................... 28 Section 9.6. Restoration of Positions. ................................................................................................... 28 Section 9.7. Rights and Remedies Cumulative. .................................................................................... 29 Section 9.8. Delay or Omission Not Waiver. ........................................................................................ 29 Section 9.9. Waiver of Past Defaults. ................................................................................................... 29 Section 9.10. Remedies Under Borrower Loan Agreement or Permanent Phase Borrower Note. ......... 29 Section 9.11. Waiver of Appraisement and Other Laws. ....................................................................... 29 Section 9.12. Suits to Protect the Security. ............................................................................................. 29 Section 9.13. Remedies Subject to Applicable Law. .............................................................................. 30 Section 9.14. Assumption of Obligations. .............................................................................................. 30 ARTICLE X AMENDMENT; AMENDMENT OF FUNDING LOAN AGREEMENT AND OTHER DOCUMENTS Section 10.1. Amendment of Funding Loan Agreement. ....................................................................... 30 Section 10.2. Amendments Require Funding Lender Consent. .............................................................. 30 Section 10.3. Consents and Opinions. .................................................................................................... 30 ARTICLE XI THE FISCAL AGENT Section 11.1. Appointment of Fiscal Agent; Acceptance. ...................................................................... 31 Section 11.2. Certain Duties and Responsibilities of Fiscal Agent. ....................................................... 31 Section 11.3. Notice of Defaults. ............................................................................................................ 32 Section 11.4. Certain Rights of Fiscal Agent. ......................................................................................... 33 Section 11.5. Not Responsible for Recitals. ........................................................................................... 34 iii 4856-5616-9347.5 Section 11.6. May Hold Governmental Lender Note. ............................................................................ 34 Section 11.7. Moneys Held in Trust. ...................................................................................................... 34 Section 11.8. Compensation and Reimbursement. ................................................................................. 34 Section 11.9. Fiscal Agent Required; Eligibility. ................................................................................... 35 Section 11.10. Resignation and Removal; Appointment of Successor. .................................................... 35 Section 11.11. Acceptance of Appointment by Successor. ...................................................................... 36 Section 11.12. Merger, Conversion, Consolidation or Succession to Business. ....................................... 36 Section 11.13. Appointment of Co-Fiscal Agent. ..................................................................................... 36 Section 11.14. Loan Servicing. ................................................................................................................. 37 Section 11.15. No Recourse Against Officers or Employees of Fiscal Agent. ......................................... 37 Section 11.16. USA Patriot Act Requirements of the Fiscal Agent. ........................................................ 37 Section 11.17. Filing of Financial Statements. ......................................................................................... 38 ARTICLE XII MISCELLANEOUS Section 12.1. Notices. ............................................................................................................................. 38 Section 12.2. Term of Funding Loan Agreement. .................................................................................. 40 Section 12.3. Successors and Assigns. ................................................................................................... 41 Section 12.4. Legal Holidays. ................................................................................................................. 41 Section 12.5. Governing Law. ................................................................................................................ 41 Section 12.6. Invalidity, Illegality or Unenforceability of Provisions. ................................................... 41 Section 12.7. Execution in Several Counterparts. ................................................................................... 41 Section 12.8. Nonrecourse Obligation of the Borrower. ........................................................................ 41 Section 12.9. Waiver of Trial by Jury. .................................................................................................... 41 Section 12.10. Electronic Transactions. .................................................................................................... 41 Section 12.11. Reference Date. ................................................................................................................. 42 EXHIBIT A FORM OF TRANSFEREE REPRESENTATIONS LETTER 4856-5616-9347.5 AMENDED AND RESTATED FUNDING LOAN AGREEMENT This AMENDED AND RESTATED FUNDING LOAN AGREEMENT (this “Funding Loan Agreement”), is made and entered into as of ___________, 20__ (Conversion Date), by and among CITIBANK, N.A., in its capacity as Funding Lender (the “Funding Lender” or the “Funding Lender”), the HOUSING FINANCE AUTHORITY OF MIAMI-DADE COUNTY, FLORIDA (the “Governmental Lender”), a public body corporate and politic organized and existing under the laws of the State of Florida (the “State”), and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a national banking association, organized and operating under the laws of the United States of America, having a corporate trust office in Jacksonville, Florida, as Fiscal Agent (the “Fiscal Agent”) and amends and restates the Funding Loan Agreement, dated as of December 1, 2023 (the “Construction Phase Funding Loan Agreement”) by and among BANK OF AMERICA, N.A., in its capacity as Initial Funding Lender (the “Initial Funding Lender”), the Governmental Lender and the Fiscal Agent. The Funding Loan Agreement, as amended and restated hereby is referred to herein as the Funding Loan Agreement. Capitalized terms are defined in Section 1.01 of this Funding Loan Agreement. RECITALS A. Pursuant to Chapter 159, Part IV, Florida Statutes, as amended, Resolution R-1194-78 adopted by the Board of County Commissioners of Miami-Dade County (the “Board”) on October 17, 1978, Ordinance No. 78-89 enacted by the Board on December 12, 1978 and Ordinance No. 11-99 enacted by the Board on December 6, 2011 (collectively, the “Act”) and the Construction Phase Borrower Loan Agreement dated as of December 1, 2023 (the “Construction Phase Borrower Loan Agreement”) by and among the Governmental Lender, the Fiscal Agent and Vista Breeze, Ltd., a Florida limited partnership, duly organized and existing under the laws of the State (the “Borrower”), the Governmental Lender made a construction period mortgage loan pursuant to the Construction Phase Borrower Loan Agreement (the “Borrower Loan”) to the Borrower in the aggregate principal amount of $32,500,000 to provide for the financing of the acquisition, construction and equipping of a multifamily rental housing development to be located at 175 S. Shore Drive and 280 S. Shore Drive, in the City of Miami Beach, Miami-Dade County, Florida known as Vista Breeze (the “Project”). B. The Governmental Lender made the Borrower Loan to the Borrower with the proceeds received from the separate loan made to the Governmental Lender by the Initial Funding Lender pursuant to the Funding Loan Agreement in the maximum aggregate principal amount of $32,500,000 (the “Funding Loan”). The Funding Loan was evidenced by the Multifamily Housing Revenue Note, Series 2023 (Vista Breeze) dated December 15, 2023 (together with all riders and addenda thereto, the “Governmental Lender Note”) delivered by the Governmental Lender to the Initial Funding Lender. C. The Borrower’s repayment obligations in respect of the Borrower Loan were evidenced by a Multifamily Note dated December 15, 2023 (together with all riders and modifications thereto, the “Construction Phase Borrower Note”) delivered to the Governmental Lender, which Construction Phase Borrower Note was endorsed by the Governmental Lender to the Fiscal Agent as security for the Funding Loan. D. To secure the Borrower’s obligations under the Construction Phase Borrower Note, the Borrower executed and delivered to the Governmental Lender a Leasehold Mortgage, Assignment of Rents, Security Agreement and Fixture Filing dated as of December 1, 2023 (the “Security Instrument”) with respect to the Project, which Security Instrument was assigned by the Governmental Lender to the Fiscal Agent as security for the Funding Loan. 2 4856-5616-9347.5 E. The Initial Funding Lender, the Funding Lender and the Borrower entered into a Forward Purchase Agreement, dated as of December 1, 2023 (the “Forward Purchase Agreement”) pursuant to which the Funding Lender agreed to purchase the Funding Loan from the Initial Funding Lender upon the satisfaction of certain conditions, including the Conditions to Conversion. The Conditions to Conversion have been satisfied and the Borrower Loan is converting from the Borrower Loan to the Permanent Phase Borrower Loan on the date hereof which is the Conversion Date. F. In connection with the Funding Lender’s purchase of the Funding Loan on the Conversion Date, (i) this Funding Loan Agreement and the Amended and Restated Borrower Loan Agreement, dated the date hereof, between the Governmental Lender, the Borrower and the Fiscal Agent (the “Borrower Loan Agreement”) are being executed and delivered and shall become effective, (ii) the Permanent Phase Borrower Note, dated the date hereof, from the Borrower to the Governmental Lender (the “Permanent Phase Borrower Note”), which amends and restates in its entirety the Construction Phase Borrower Note, is being executed and delivered by the Borrower and assigned to the Funding Lender by the Governmental Lender, (iii) the Security Instrument is being amended and restated and (iv) this Funding Loan Agreement, the Borrower Loan Agreement and the Permanent Phase Borrower Note will secure the Funding Loan in substitution for the Construction Phase Funding Loan Agreement, Construction Phase Borrower Loan Agreement and Construction Phase Borrower Note, respectively, which Construction Phase Funding Loan Agreement and Construction Phase Borrower Loan Agreement are simultaneously being terminated. G. All of the Conditions to Conversion (as defined in the Forward Purchase Agreement) and all of the other conditions of Funding Lender’s purchase of the Funding Loan set forth in the Forward Purchase Agreement have been, or as of the Conversion Date will be, satisfied. NOW, THEREFORE, in consideration of the premises and of the purchase of the Funding Loan by the Funding Lender, and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto agree as follows: ARTICLE I DEFINITIONS; PRINCIPLES OF CONSTRUCTION Section 1.1. Definitions. For all purposes of this Funding Loan Agreement, except as otherwise expressly provided or unless the context otherwise clearly requires: (a) Unless specifically defined herein, all capitalized terms shall have the meanings ascribed thereto in the Borrower Loan Agreement. (b) The terms “herein,” “hereof” and “hereunder” and other words of similar import refer to this Funding Loan Agreement as a whole and not to any particular Article, Section or other subdivision. The terms “agree” and “agreements” contained herein are intended to include and mean “covenant” and “covenants.” (c) All references made (i) in the neuter, masculine or feminine gender shall be deemed to have been made in all such genders, and (ii) in the singular or plural number shall be deemed to have been made, respectively, in the plural or singular number as well. Singular terms shall include the plural as well as the singular, and vice versa. (d) All accounting terms not otherwise defined herein shall have the meanings assigned to them, and all computations herein provided for shall be made, in accordance with GAAP (Generally Accepted Accounting Principles). 3 4856-5616-9347.5 (e) All references in this instrument to designated “Articles,” “Sections” and other subdivisions are to the designated Articles, Sections and subdivisions of this instrument as originally executed. (f) All references in this instrument to a separate instrument are to such separate instrument as the same may be amended or supplemented from time to time pursuant to the applicable provisions thereof. (g) References to the Governmental Lender Note as “tax exempt” or to the “tax exempt status” of the Governmental Lender Note are to the exclusion of interest on the Governmental Lender Note (other than any portion of the Governmental Lender Note held by a “substantial user” of the Project or a “related person” within the meaning of Section 147 of the Code) from gross income for federal income tax purposes pursuant to Section 103(a) of the Code. (h) The following terms have the meanings set forth below: “Act” shall have the meaning assigned to such term in the recitals above. “Additional Borrower Payments” shall have the meaning given such term in the Borrower Loan Agreement. “Administration Fund” shall mean the fund by that name created and established under this Funding Loan Agreement. “Affiliate” shall mean, as to any Person, any other Person that, directly or indirectly, is in Control of, is Controlled by or is under common Control with such Person. “Approved Transferee” means (1) a “qualified institutional buyer” (“QIB”) as defined in Rule 144A promulgated under the Securities Act of 1933, as in effect on the date hereof (the “Securities Act”) that is a financial institution or commercial bank having capital and surplus of $5,000,000,000 or more, (2) an Affiliate of the Funding Lender that is a QIB, (3) a trust or custodial arrangement established by the Funding Lender or one of its Affiliates or any state or local government or any agency or entity which is a political subdivision of a federal, state or local government (a “Governmental Entity”), in each case (i) the beneficial interests in which will be owned only by QIBs, (ii) the beneficial interests in which will be rated in the “A” category or higher without regard to modifier (or the equivalent investment grade category) by at least one nationally recognized rating agency and (iii) evidence of compliance with (i) or (ii) acceptable to the Fiscal Agent, or (4) a Governmental Entity. For any transfers after the six (6) month anniversary of the Conversion Date, “A” will be replaced by “BBB” for purposes of clause 3(ii) above. “Authorized Attesting Officer” means the Vice Chair, Secretary/Treasurer or any Assistant Secretary of the Governmental Lender, or such other officer or official or member of the Governmental Lender, including but not limited to the Executive Director of the Governmental Lender who, in accordance with the County Authorization, the law of the State, the bylaws or other governing documents of the Governmental Lender, or practice or custom, regularly attests or certifies official acts and records of the Governmental Lender, and includes any assistant or deputy officer to the principal officer or officers exercising such responsibilities. “Authorized Governmental Lender Representative” shall mean the Chair, Vice-Chair, and any other, officer or employee of the Governmental Lender designated to perform a specified act, to sign a specified document or to act generally on behalf of the Governmental Lender as evidenced by a written certificate furnished to the Funding Lender, the Fiscal Agent, the Servicer (if any) and the Borrower containing the specimen signature of such person and signed on behalf of the Governmental Lender by the 4 4856-5616-9347.5 Chair, Vice-Chair or Executive Director of the Governmental Lender. Such certificate may designate an alternate or alternates, each of whom shall be entitled to perform all duties of the Authorized Governmental Lender Representative. “Borrower” shall mean Vista Breeze, Ltd., a Florida limited partnership, and its successors and assigns. “Borrower Loan” shall mean the mortgage loan made by the Governmental Lender to the Borrower pursuant to the Construction Phase Borrower Loan Agreement in the original maximum aggregate principal amount of $32,500,000, as originally evidenced by the Construction Phase Borrower Note, which on the Conversion Date is outstanding in the amount of $__________ and evidenced by the Permanent Phase Borrower Note. “Borrower Loan Agreement” shall mean the Amended and Restated Borrower Loan Agreement, dated as of _______, 20__, between the Governmental Lender , the Borrower and the Fiscal Agent, as supplemented, amended or replaced from time to time in accordance with its terms. “Borrower Loan Agreement Default” shall mean any event of default set forth in 8.1 of the Borrower Loan Agreement. A Borrower Loan Agreement Default shall “exist” if a Borrower Loan Agreement Default shall have occurred and be continuing beyond any applicable cure period. “Borrower Loan Documents” shall have the meaning given to such term in the Borrower Loan Agreement. “Business Day” shall mean any day other than (i) a Saturday or a Sunday, or (ii) a day on which the offices of the Fiscal Agent in Jacksonville, Florida or federally insured depository institutions in New York, New York are authorized or obligated by law, regulation, governmental decree or executive order to be closed. “Code” shall mean the Internal Revenue Code of 1986, as in effect on the Delivery Date or (except as otherwise referenced herein) as it may be amended to apply to obligations issued on the Delivery Date, together with applicable proposed, temporary and final regulations promulgated, and applicable official public guidance published, under the Code. “Compliance Monitoring Fee” means the compliance monitoring fee in an annual amount equal to $30.00 per rental unit in the Project (119 units; $3,570.00 annual fee) (subject to adjustment from time to time by the Governmental Lender) to be paid by the Borrower to the Governmental Lender pursuant to the Regulatory Agreement. “Conditions to Conversion” shall have the meaning given such term in the Forward Purchase Agreement. “Control” shall mean, with respect to any Person, either (i) ownership directly or through other entities of more than 50% of all beneficial equity interest in such Person, or (ii) the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, through the ownership of voting securities, by contract or otherwise. “Conversion Date” shall mean ___________, the date on which the Funding Lender purchases the Governmental Lender Note from the Initial Funding Lender and assumes the role of the Funding Lender under the Funding Loan Documents. 5 4856-5616-9347.5 “County” shall mean Miami-Dade County, Florida. “County Authorization” has the meaning set forth in the recitals above. “Delivery Date” shall mean the date of issuance and delivery of the Governmental Lender Note. “Equity Investor” shall have the meaning ascribed thereto in the Borrower Loan Agreement. “Event of Default” shall have the meaning ascribed thereto in Section 9.1 hereof. “Fee Guaranty & Environmental Indemnity” means the Fee Guaranty and Environmental Indemnity Agreement, dated as of December 1, 2023, by and among the Governmental Lender, the Fiscal Agent and the Governmental Lender Guarantors. “Fiscal Agent” shall mean The Bank of New York Mellon Trust Company, N.A., a national banking association, as fiscal agent hereunder, and any successor fiscal agent or co-fiscal agent appointed under this Funding Loan Agreement. “Fiscal Agent’s Fees” shall mean the Fiscal Agent’s initial acceptance fee and expenses of $2,000 plus fees and expenses of its counsel in conjunction with the delivery of the Governmental Lender Note and the ongoing compensation and expenses payable to the Fiscal Agent as follows: (i) the annual administration fees of the Fiscal Agent, for the ordinary services of the Fiscal Agent rendered under this Funding Loan Agreement during each twelve-month period and shall be $4,250, payable in advance in semiannual installments of $2,125 on the Delivery Date and each December 1 and June 1 thereafter; (ii) the reasonable fees and charges of the Fiscal Agent for necessary extraordinary services rendered by it and/or reimbursement for extraordinary expenses incurred by it under this Funding Loan Agreement as and when the same become due, including reasonable fees and expenses of legal counsel and internal default administrators (including fees prior to litigation, at trial or for appellate proceedings); provided, however, that the Fiscal Agent shall not be required to undertake any such extraordinary services unless provision for payment of extraordinary expenses satisfactory to the Fiscal Agent shall have been made; and (iii) for purposes of the Borrower Loan Agreement, indemnification of the Fiscal Agent by the Borrower. “Funding Lender” shall mean Citibank, N.A., a national banking association, and any successor under this Funding Loan Agreement and the Borrower Loan Documents. “Funding Loan Agreement” shall mean this Amended and Restated Funding Loan Agreement, dated ________, 20__, by and among the Funding Lender, the Governmental Lender and the Fiscal Agent, as it may from time to time be supplemented, modified or amended by one or more instruments supplemental hereto entered into pursuant to the applicable provisions hereof. “Funding Loan Documents” shall mean (i) this Funding Loan Agreement, (ii) the Borrower Loan Agreement, (iii) the Regulatory Agreement, (iv) the Tax Certificate, (v) the Borrower Loan Documents, (vi) the Loan Covenant Agreement, (vii) the Governmental Lender Guaranties, (viii) all other documents evidencing, securing, governing or otherwise pertaining to the Funding Loan, and (ix) all amendments, modifications, renewals and substitutions of any of the foregoing. 6 4856-5616-9347.5 “Governmental Lender” shall mean the Housing Finance Authority of Miami-Dade County, Florida. “Governmental Lender Extraordinary Fees and Expenses” means the expenses and disbursements payable to the Governmental Lender under this Funding Loan Agreement for extraordinary services and extraordinary expenses, including extraordinary fees, costs and expenses incurred by the Governmental Lender, Bond Counsel and counsel to the Governmental Lender which are to be paid by the Borrower pursuant to the Borrower Loan Documents. “Governmental Lender Fee” means, collectively, the Governmental Lender Ordinary Fees and Expenses and the Governmental Lender Extraordinary Fees and Expenses. “Governmental Lender Guaranties” means, collectively, (i) the Guaranty of Recourse Obligations, (ii) the Operating Deficit Guaranty, and (iii) the Fee Guaranty and Environmental Indemnity, each dated as of December 1, 2023, by the Governmental Lender Guarantors for the benefit of the Governmental Lender and the Fiscal Agent. “Governmental Lender Guarantors” means, collectively, the Borrower, APC Vista Breeze, LLC, a Florida limited liability company, Vista Breeze HACMB, Inc., a Florida not for profit corporation, Atlantic Pacific Communities, LLC, a Delaware limited liability company, APC Vista Breeze Development, LLC, a Florida limited liability company, HACMB Development, LLC, a Florida limited liability company, Howard D. Cohen Revocable Trust Under Agreement Dated 4/6/1993, and Howard D. Cohen, individually. “Governmental Lender Ordinary Fees and Expenses” means collectively (i) the annual fee of the Governmental Lender, payable by the Borrower in the amount of 25 basis points (0.25%) of the outstanding principal amount of the Governmental Lender Note (calculated on the Business Day prior to any reduction on such payment date), payable in semiannual installments in arrears on each December 1 and June 1, commencing on June 1 or December 1 following Conversion, pro-rated as applicable to such date, (ii) the Compliance Monitoring Fee and (iii) the Governmental Lender Short-Term Prepayment Fee, if applicable. “Governmental Lender Short-Term Prepayment Fee” means the applicable fee in the following schedule determined based on the principal amount of the Governmental Lender Note to be prepaid and the length of time between the date of issuance of t he Note and the prepayment or final maturity of the Governmental Lender Note; provided however, such fee shall not be less than $20,000, which fee is payable on the partial or full prepayment or final maturity date, as applicable: Prepayment Date Note Amount ≤ 18-Month 18+ to 24-Months 24+ to 60-Months $15 million or less 31 bps 24 bps 18 bps Above $15 million up to $20 million 30 bps 23 bps 17 bps $20 million up to $25 million 29 bps 22 bps 16 bps $25 million up to $30 million 28 bps 21 bps 15 bps $30 million or above 27 bps 20 bps 14 bps 7 4856-5616-9347.5 “Governmental Lender Note” shall mean the Governmental Lender Note described in the recitals of this Funding Loan Agreement. “Guaranty of Recourse Obligations” means the Absolute and Unconditional Guaranty of Recourse Obligations, dated as of December 1, 2023, from the Governmental Lender Guarantors, jointly and severally, in favor of the Governmental Lender and the Fiscal Agent. “Highest Rating Category” shall mean, with respect to a Permitted Investment, that the Permitted Investment is rated by S&P or Moody’s in the highest rating given by that Rating Agency for that general category of security. By way of example, the Highest Rating Category for tax exempt municipal debt established by S&P is “A 1+” for debt with a term of one year or less and “AAA” for a term greater than one year, with corresponding ratings by Moody’s of “MIG 1” (for fixed rate) or “VMIG 1” (for variable rate) for three (3) months or less and “Aaa” for greater than three months. If at any time (i) both S&P and Moody’s rate a Permitted Investment and (ii) one of those ratings is below the Highest Rating Category, then such Permitted Investment will, nevertheless, be deemed to be rated in the Highest Rating Category if the lower rating is no more than one rating category below the highest rating category of that Rating Agency. For example, a Permitted Investment rated “AAA” by S&P and “Aa3” by Moody’s is rated in the Highest Rating Category. If, however, the lower rating is more than one full rating category below the Highest Rating Category of that Rating Agency, then the Permitted Investment will be deemed to be rated below the Highest Rating Category. For example, a Permitted Investment rated “AAA” by S&P and “A1” by Moody’s is not rated in the Highest Rating Category. “Loan Covenant Agreement” shall mean the Loan Covenant Agreement between the Borrower and the Funding Lender, dated the date hereof. “Loan Payment Fund” shall mean the fund by that name created and established under this Funding Loan Agreement. “Maturity Date” shall mean with respect to the Governmental Lender Note, July 1, 2057. “Minimum Beneficial Ownership Amount” shall mean an amount not less than fifteen percent (15%) of the aggregate outstanding principal amount of the Funding Loan. “Moody’s” shall mean Moody’s Investors Service, Inc., or its successor. “Operating Deficit Guaranty” means the Absolute and Unconditional Guaranty of Operating Deficits, dated as of December 1, 2023, from the Governmental Lender Guarantors, jointly and severally, to the Governmental Lender and the Fiscal Agent. “Opinion of Counsel” shall mean a written opinion from an attorney or firm of attorneys, acceptable to the Funding Lender and the Governmental Lender with experience in the matters to be covered in the opinion; provided that whenever an Opinion of Counsel is required to address the exclusion of interest on the Governmental Lender Note from gross income for purposes of federal income taxation, such opinion shall be provided by Tax Counsel. “Permanent Phase Borrower Loan” shall mean the mortgage loan made by the Governmental Lender to the Borrower pursuant to the Borrower Loan Agreement in the aggregate principal amount of $___________, as evidenced by the Permanent Phase Borrower Note. “Permanent Phase Borrower Note” shall mean the “Permanent Phase Borrower Note” as defined in the Recitals hereto. 8 4856-5616-9347.5 “Permitted Investments” shall mean, to the extent authorized by law for investment of any moneys held under this Funding Loan Agreement: (a) Direct obligations of the United States of America including obligations issued or held in book-entry form on the books of the Department of the Treasury of the United States of America (“Government Obligations”). (b) Direct obligations of, and obligations on which the full and timely payment of principal and interest is unconditionally guaranteed by, any agency or instrumentality of the United States of America, or direct obligations of the World Bank, which obligations are rated in the Highest Rating Category. (c) Demand deposits or time deposits with, or certificates of deposit issued by, the Fiscal Agent or its Affiliates or any bank organized under the laws of the United States of America or any state or the District of Columbia which has combined capital, surplus and undivided profits of not less than $50,000,000 and maturing in less than 365 days; provided that the Fiscal Agent or such other institution has been rated at least “VMIG-1”/”A-1+” by Moody’s/S&P which deposits or certificates are fully insured by the Federal Deposit Insurance Corporation or collateralized pursuant to the requirements of the Office of the Comptroller of the Currency. (d) Bonds (including tax-exempt bonds), bills, notes or other obligations of or secured by Fannie Mae, Freddie Mac, the Federal Home Loan Bank or the Federal Farm Credit Bank. (e) Money market funds rated AAA by S&P which are registered with the Securities and Exchange Commission and which meet the requirements of Rule 2(a)(7) of the Investment Company Act of 1940, as amended, which may be administered by the Fiscal Agent or its Affiliates. (f) Collateralized Investment Agreements or Repurchase Agreements with financial institutions rated in the “A” category or higher without regard to qualifiers, by at least one Rating Agency. The agreement must be continually collateralized with obligations specified in paragraphs (a), (b) and/or (d) above, eligible for wire through the Federal Reserve Bank System or the DTC/PTC as applicable, and at a level of at least 103% of the amount on deposit and valued no less than daily. The collateral must be held by a third party custodian and be free and clear of all liens and claims of third parties. Securities must be valued daily, marked-to-market at current market price plus accrued interest. If the market value of t he securities is found to be below the required level, the provider must restore the market value of the securities to the required level within one (1) business day. Permitted collateral must be delivered to and held in a segregated account by the Fiscal Agent or a custodian (the “Collateral Agent”), and the Collateral Agent cannot be the provider. The collateral must be delivered to the Collateral Agent before/simultaneous with payment (perfection by possession of certificated securities). Acceptable collateral must be free and clear of all liens and claims of third parties and shall be registered in the name of the Collateral Agent for the benefit of the Governmental Lender and Fiscal Agent. The agreement shall state that the Collateral Agent has a valid and perfected first priority security interest in the securities, any substituted securities and all proceeds thereof. (g) Any other investment authorized by the laws of the State, if such investment is approved in advance in writing by the Funding Lender in its sole discretion. Permitted Investments shall not include any of the following: (1) Except for any investment described in the next sentence, any investment or any agreement with a maturity profile greater than the date(s) on which funds representing the corpus of the investment may be needed under the Funding Loan Documents. This exception (1) shall not apply to Permitted Investments listed in paragraph (g). 9 4856-5616-9347.5 (2) Any obligation bearing interest at an inverse floating rate. (3) Any investment which may be prepaid or called at a price less than its purchase price prior to stated maturity. (4) Any investment the interest rate on which is variable and is established other than by reference to a single index plus a fixed spread, if any, and which interest rate moves proportionately with that index. Ratings of Permitted Investments shall be determined at the time of purchase of such Permitted Investments and without regard to ratings subcategories, and the Fiscal Agent shall have no responsibility to monitor the ratings of Permitted Investments after the initial purchase of such Permitted Investments. “Person” shall mean any individual, corporation, limited liability company, partnership, joint venture, estate, trust, unincorporated association, any federal, state, county or municipal government or any bureau, department or agency thereof and any fiduciary acting in such capacity on behalf of any of the foregoing. “Pledged Revenues” shall mean the amounts pledged under this Funding Loan Agreement to the payment of the principal of, prepayment premium, if any, and interest on the Funding Loan and the Governmental Lender Note, consisting of the following: (i) all income, revenues, proceeds and other amounts to which the Governmental Lender is entitled (other than amounts received by the Governmental Lender with respect to the Unassigned Rights) derived from or in connection with the Project and the Funding Loan Documents, including all Borrower Loan Payments due under the Borrower Loan Agreement and the Permanent Phase Borrower Note, payments with respect to the all Permanent Phase Borrower Loan Payments and all amounts obtained through the exercise of the remedies provided in the Funding Loan Documents and all receipts credited under the provisions of this Funding Loan Agreement against said amounts payable, and (ii) moneys held in the funds and accounts established under this Funding Loan Agreement, together with investment earnings thereon (except any amounts on deposit in the Administration Fund and Rebate Fund). “Prepayment Premium” shall mean (i) any premium payable by the Borrower pursuant to the Borrower Loan Documents in connection with a prepayment of the Permanent Phase Borrower Note (including any Prepayment Premium as set forth in the Permanent Phase Borrower Note) and (ii) a ny premium payable on the Governmental Lender Note pursuant to this Funding Loan Agreement. “Project” shall have the meaning given to that term in the Borrower Loan Agreement. “Rating Agency” shall mean any one and each of S&P and Moody’s then rating the Permitted Investments or any other nationally recognized statistical rating agency then rating the Permitted Investments, which has been approved by the Funding Lender. “Rebate Fund” shall mean the fund by that name created and established under this Funding Loan Agreement. “Record Date” shall mean the last day of each calendar month. “Regulations” shall mean with respect to the Code, the relevant U.S. Treasury regulations and proposed regulations thereunder or any relevant successor provision to such regulations and proposed regulations. 10 4856-5616-9347.5 “Regulatory Agreement” shall mean that certain Land Use Restriction Agreement, dated as of the date hereof, by and among the Governmental Lender, the Borrower and the Fiscal Agent, as hereafter amended or modified. “Required Transferee Representations” shall mean the representations in substantially the form attached to this Funding Loan Agreement as Exhibit A. “Resolution” shall mean the resolution of the Governmental Lender authorizing the Funding Loan, as evidenced by the Governmental Lender Note and the execution and delivery of the Funding Loan Documents to which the Governmental Lender is a party. “Responsible Officer” shall mean any officer within the Corporate Trust Department (or any successor group) of the Fiscal Agent, including any vice president, assistant vice president, assistant secretary or any other officer or assistant officer of the Fiscal Agent customarily performing functions similar to those performed by the persons who at the time shall be such officers, respectively, who is responsible for the administration of this Funding Loan Agreement. “Securities Act” shall mean the Securities Act of 1933, as amended. “Security” shall mean the security for the performance by the Governmental Lender of its obligations under the Governmental Lender Note and this Funding Loan Agreement as more fully set forth in Article IV hereof. “Security Instrument” shall mean the Amended and Restated Mortgage, Assignment of Rents, Security Agreement and Fixture Filing, dated as of the date hereof (as amended, restated and/or supplemented from time to time), made by the Borrower in favor of the Governmental Lender and assigned to the Funding Lender to secure the performance by the Governmental Lender of its obligations with respect to the Funding Loan, as evidenced by the Governmental Lender Note. “Servicer” shall mean any Servicer appointed by the Funding Lender to perform certain servicing functions with respect to the Funding Loan and on the Permanent Phase Borrower Loan pursuant to a separate servicing agreement to be entered into between the Funding Lender and the Servicer. Initially the Servicer shall be the Funding Lender pursuant to this Funding Loan Agreement. “Servicing Agreement” shall mean any servicing agreement entered into between the Funding Lender and a Servicer with respect to the servicing of the Funding Loan and/or the Permanent Phase Borrower Loan. “S&P” shall mean S&P Global Ratings, a division of S&P Global Inc., and its successors. “State” shall mean the State of Florida. “Tax Certificate” shall mean the Tax Certificate and Agreement executed by the Governmental Lender and the Borrower including all exhibits and other attachments thereto as may be amended from time to time. “Tax Counsel” shall mean, collectively, Foley & Lardner, LLP, or any other attorney or firm of attorneys designated by the Governmental Lender and approved by the Funding Lender having a national reputation for skill in connection with the authorization and issuance of municipal obligations under Sections 103 and 141 through 150 (or any successor provisions) of the Code. 11 4856-5616-9347.5 “Tax Counsel No Adverse Effect Opinion” shall mean an opinion of Tax Counsel to the effect that the taking of the action specified therein will not, in and of itself, impair the exclusion of interest on the Governmental Lender Note from gross income for purposes of federal income taxation (subj ect to the inclusion of such customary exceptions as are acceptable to the recipient thereof). “Unassigned Rights” shall mean the Governmental Lender’s rights to reimbursement and payment of its fees, costs and expenses and the Rebate Amount under Section 2.5 of the Borrower Loan Agreement, its rights of access under Section 5.18 thereof, its rights to indemnification under Section 5.16 thereof and under any of the other Funding Loan Documents, if such right exists, its rights to attorneys ’ fees under Sections 5.12 and 5.15 thereof, its rights to receive notices, reports and other statements and its rights to consent to certain matters, as provided in this Funding Loan Agreement, the Borrower Loan Agreement and under any of the other Funding Loan Documents, if such right exists. “Written Certificate,” “Written Certification,” “Written Consent,” “Written Direction,” “Written Notice,” “Written Order,” “Written Registration,” “Written Request,” and “Written Requisition” shall mean a written certificate, direction, notice, order or requisition signed by an Authorized Borrower Representative, an Authorized Governmental Lender Representative, a Responsible Officer of the Fiscal Agent or an authorized representative of the Funding Lender and delivered to the Funding Lender, the Servicer, the Governmental Lender Servicer, the Fiscal Agent or such other Person as required under the Funding Loan Documents. “Yield” shall mean yield as defined in Section 148(h) of the Code and any regulations promulgated thereunder. Section 1.2. Effect of Headings and Table of Contents. The Article and Section headings herein and in the Table of Contents are for convenience only and shall not affect the construction hereof. Section 1.3. Date of Funding Loan Agreement. The date of this Funding Loan Agreement is intended as and for a date for the convenient identification of this Funding Loan Agreement and is not intended to indicate that this Funding Loan Agreement was executed and delivered on said date. Section 1.4. Designation of Time for Performance. Except as otherwise expressly provided herein, any reference in this Funding Loan Agreement to the time of day shall mean the time of day in the city where the Funding Lender maintains its place of business for the performance of its obligations under this Funding Loan Agreement. Section 1.5. Interpretation. The parties hereto acknowledge that each of them and their respective counsel have participated in the drafting and revision of this Funding Loan Agreement. Accordingly, the parties agree that any rule of construction that disfavors the drafting party shall not apply in the interpretation of this Funding Loan Agreement or any amendment or supplement or exhibit hereto. ARTICLE II TERMS; GOVERNMENTAL LENDER NOTE Section 2.1. Terms. (a) Principal Amount. The maximum aggregate principal amount of the Funding Loan and the Governmental Lender Note evidencing such Funding Loan is $______________. 12 4856-5616-9347.5 (b) Maturity. The Funding Loan shall mature on the Maturity Date at which time the entire principal amount, to the extent not previously paid, and all accrued and unpaid interes t, shall be due and payable. (c) Principal. The outstanding principal amount of the Governmental Lender Note and of the Funding Loan as of any given date shall be the principal amount outstanding on the Conversion Date, less any payments of principal of the Governmental Lender Note received from payments of corresponding principal amounts under the Borrower Note, including regularly scheduled principal payments and voluntary and mandatory prepayments. The principal amount of the Governmental Lender Note and interest thereon shall be payable on the basis specified in paragraphs (d), (e) and (f) of this Section 2.1. The Fiscal Agent shall keep a record of all principal repayments made under the Governmental Lender Note and shall upon written request provide the Governmental Lender and the Funding Lender with a statement of the outstanding principal balance of the Governmental Lender Note and the Funding Loan. (d) Interest. Interest shall be paid on the outstanding principal amount of the Governmental Lender Note at the rate or rates set forth in the Permanent Phase Borrower Note and otherwise as set forth in the Borrower Loan Agreement. (e) Corresponding Payments. The payment or prepayment of principal, interest and premium, if any, due on the Governmental Lender Note shall be identical with and shall be made on the same dates, terms and conditions, as the principal, interest, premiums, late payment fees and other amounts due on the Permanent Phase Borrower Note. Any payment or prepayment made by the Borrower of principal, interest, premium, if any, due on the Permanent Phase Borrower Note shall be deemed to be like payments or prepayments of principal, interest and premium, if any, due on the Funding Loan and the Governmental Lender Note. (f) Usury. The Governmental Lender intends to conform strictly to the usury laws applicable to this Funding Loan Agreement and the Governmental Lender Note and all agreements made in the Governmental Lender Note, this Funding Loan Agreement and the Funding Loan Documents are expressly limited so that in no event whatsoever shall the amount paid or agreed to be paid as interest or the amounts paid for the use of money advanced or to be advanced hereunder exceed the highest lawful rate prescribed under any law which a court of competent jurisdiction may deem applicable hereto. If, from any circumstances whatsoever, the fulfillment of any provision of the Governmental Lender Note, this Funding Loan Agreement or the other Funding Loan Documents shall involve the payment of interest in excess of the limit prescribed by any law which a court of competent jurisdiction may deem applicable hereto, then the obligation to pay interest hereunder shall be reduced to the maximum limit prescribed by law. If from any circumstances whatsoever, the Funding Lender shall ever receive anything of value deemed interest, the amount of which would exceed the highest lawful rate, such amount as would be excessive interest shall be deemed to have been applied, as of the date of receipt by the Funding Lender, to the reduction of the principal remaining unpaid hereunder and not to the payment of interest, or if such excessive interest exceeds the unpaid principal balance, such excess shall be refunded to the Borrower. This paragraph shall control every other provision of the Governmental Lender Note, this Funding Loan Agreement and all other Funding Loan Documents. In determining whether the amount of interest charged and paid might otherwise exceed the limit prescribed by law, the parties hereto intend and agree that (i) interest shall be computed upon the assumption that payments under the Borrower Loan Agreement and other Funding Loan Documents will be paid according to the agreed terms, and (ii) any sums of money that are taken into account in the calculation of interest, even though paid at one time, shall be spread over the actual term of the Funding Loan. 13 4856-5616-9347.5 Section 2.2. Form of Governmental Lender Note. As evidence of its obligation to repay the Funding Loan, the Governmental Lender has executed and delivered the Governmental Lender Note. Section 2.3. Execution and Delivery of Governmental Lender Note. The Governmental Lender Note shall each be executed on behalf of the Governmental Lender by the manual or facsimile signature of an Authorized Governmental Lender Representative and attested by the manual or facsimile signature of an Authorized Attesting Officer. Any facsimile signatures shall have the same force and effect as if said officers had manually signed the Governmental Lender Note. In case any officer of the Governmental Lender whose manual or facsimile signature shall appear on a Governmental Lender Note shall cease to be such officer before the delivery thereof, such signature or such facsimile shall nevertheless be valid and sufficient for all purposes, the same as if he had remained in office until delivery, and also a Governmental Lender Note may bear the facsimile signatures of, or may be signed by, such persons as at the actual time of the execution thereof shall be the proper officers to sign such Governmental Lender Note although at the date of the Governmental Lender Note such persons may not have been such officers. Section 2.4. Authentication. The Fiscal Agent has authenticated the Governmental Lender Note by execution of the certificate of authentication on or attached to the Governmental Lender Note, and the certificate of authentication so executed on or attached to the Governmental Lender Note shall be conclusive evidence that the Governmental Lender Note has been authenticated and delivered under this Funding Loan Agreement. Section 2.5. Registration and Transfer of Governmental Lender Note. (a) The Fiscal Agent acknowledges that the Funding Lender is the holder of the Governmental Lender Note as of the Conversion Date and shall remain the sole holder of the Governmental Lender Note except as otherwise provided herein. (b) The Fiscal Agent, on behalf of the Governmental Lender, shall provide for the registration of the Governmental Lender Note or interests therein and the registration of transfers thereof. In that regard, the Fiscal Agent shall maintain a register which shall contain a record of the Governmental Lender Note at any time authenticated hereunder, together with the name and address of the holder thereof, the date of authentication, the date of transfer or payment, and such other matters as may be deemed appropriate by the Fiscal Agent or the Governmental Lender. The Governmental Lender, the Fiscal Agent and any agent of the Governmental Lender or the Fiscal Agent shall treat the person in whose name the Governmental Lender Note is registered as of the Record Date as the owner of the Governmental Lender Note for the purpose of receiving payment of the Governmental Lender Note and for all other purposes whatsoever whether or not the Governmental Lender Note payments are overdue, and, to the extent permitted by law, neither the Governmental Lender, the Fiscal Agent nor any such agent shall be affected by notice to the contrary. (c) The transfer of the Governmental Lender Note is subject to registration by the holder thereof only upon compliance with the conditions for registration of transfer imposed on the holder under this Section 2.5 and under Section 2.6 hereof. Upon surrender of any Governmental Lender Note at the principal corporate trust office of the Fiscal Agent, the Governmental Lend er shall execute (if necessary), and the Fiscal Agent shall authenticate and deliver, in the name of the designated transferee (but not registered in blank or to “bearer” or a similar designation), a new Governmental Lender Note of a like principal amount, and having the same stated maturity, tenor and interest rate, substantially in the form set forth in Exhibit A hereto. (d) Any Governmental Lender Note delivered in exchange for or upon transfer of a Governmental Lender Note shall be a valid limited obligation of the Governmental Lender evidencing the 14 4856-5616-9347.5 same debt and entitled to the same benefits under this Funding Loan Agreement, as the Governmental Lender Note surrendered for such exchange or transfer. (e) Registration of the transfer of the Governmental Lender Note may be made on the Fiscal Agent’s register by the holder thereof by such holder’s attorney duly authorized in writing; provided, that the Governmental Lender Note presented or surrendered for registration of transfer or exchange (i) is accompanied by evidence of compliance with the provisions of Section 2.6 hereof, (ii) is duly endorsed or be accompanied by a written instrument or instruments of transfer, in a form satisfactory to the Governmental Lender and the Fiscal Agent, duly executed by the holder thereof or his, her or its attorney duly authorized in writing and (iii) includes written instructions as to the details of the transfer of the Governmental Lender Note. (f) No service charge shall be made to the registered holder of the Governmental Lender Note for any registration, transfer or exchange, but the Fiscal Agent and the Governmental Lender may require payment of a sum sufficient to cover any tax, fee or other governmental charge that may be imposed in connection with any transfer or exchange of the Governmental Lender Note, and any legal or unusual costs of transfers. Such sums shall be paid in every instance by the purchaser or assignee of the Funding Loan or portion thereof. (g) The Governmental Lender Note shall not be transferred through the servi ces of the Depository Trust Company or any other third-party registrar. (h) The transferor shall also provide or cause to be provided to the Fiscal Agent all information necessary to allow the Fiscal Agent to comply with any applicable tax reporting obligations, including without limitation any cost basis reporting obligations under Internal Revenue Code Section 6045. The Fiscal Agent may rely on the information provided to it and shall have no responsibility to verify or ensure the accuracy of such information. Section 2.6. Restrictions on Transfer. (a) The Funding Lender shall deliver to the Governmental Lender the Required Transferee Representations in substantially the form attached hereto as Exhibit A on the Delivery Date. (b) The Funding Lender shall have the right to sell (i) the Governmental Lender Note and the Funding Loan in whole or (ii) a participation interest or other beneficial ownership interest in the Governmental Lender Note and the Funding Loan to the extent permitted by Section 2.6(c) below, provided that such sale shall be only to Approved Transferees that execute and deliver the Required Transferee Representations to the Funding Lender, with a copy to the Governmental Lender and the Fiscal Agent; provided, however, that no Required Transferee Representations shall be required to be delivered by transferees or beneficial interest holders described in clauses (3) or (4) of the definition of “Approved Transferee.” (c) Notwithstanding the other provisions of this Section 2.6, no beneficial ownership interest in the Governmental Lender Note and Funding Loan shall be sold in an amount that is less than the Minimum Beneficial Ownership Amount; provided, however, that beneficial ownership interests in the Governmental Lender Note and Funding Loan described in clause (3) of the definition of “Approved Transferee” may be sold in any amount equal to or greater than $100,000. (d) The parties agree that no rating shall be sought from a rating agency with respect to the Funding Loan or the Governmental Lender Note. 15 4856-5616-9347.5 The Fiscal Agent shall be entitled to rely, without any further inquiry, on any Required Transferee Representations delivered to it and shall be fully protected in registering any transfer or exchange of the Governmental Lender Note in reliance on any such Required Transferee Representations which appear on their face to be correct and of which the Fiscal Agent has no actual knowledge otherwise. Any such holder desiring to effect such transfer shall agree to indemnify the Governmental Lender and the Fiscal Agent from and against any and all liability, cost or expense (including attorneys’ fees) that may result if the transfer is not exempt from registration under the Securities Act or is not made in accordance with such federal and state laws. Notwithstanding anything to the contrary herein, the holder shall not transfer or sell the Governmental Lender Note or any interest therein to a party related to or affiliated with the Borrower, any general partner, limited partner or member of the Borrower without the prior written consent of the Governmental Lender. ARTICLE III PREPAYMENT Section 3.1. Prepayment of the Governmental Lender Note from Prepayments Under the Permanent Phase Borrower Note. The Governmental Lender Note is subject to voluntary and mandatory prepayment as follows: (a) The Governmental Lender Note shall be subject to voluntary prepayment to the extent and in the manner and on any date that the Permanent Phase Borrower Note is subject to voluntary prepayment as set forth therein, at a prepayment price equal to the principal balance of the Permanent Phase Borrower Note to be prepaid, plus interest thereon to the date of prepayment and the amount of any Prepayment Premium payable under the Permanent Phase Borrower Note, plus any Additional Borrower Payments due and payable under the Borrower Loan Agreement through the date of prepayment. The Borrower shall not have the right to voluntarily prepay all or any portion of the Permanent Phase Borrower Note, thereby causing the Governmental Lender Note to be prepaid, except as specifically permitted in the Permanent Phase Borrower Note, without the prior written consent of Funding Lender, which may be withheld in Funding Lender’s sole and absolute discretion. (b) The Governmental Lender Note shall be subject to mandatory prepayment in whole or in part upon prepayment of the Permanent Phase Borrower Note at the direction of the Funding Lender in accordance with the terms of the Permanent Phase Borrower Note at a prepayment price equal to the outstanding principal balance of the Permanent Phase Borrower Note prepaid, plus accrued interest plus any other amounts payable under the Permanent Phase Borrower Note or the Borrower Loan Agreement. Section 3.2. Notice of Prepayment. Notice of prepayment of the Governmental Lender Note shall be deemed given to the extent that notice of prepayment of the Permanent Phase Borrower Note is timely and properly given to Funding Lender and Fiscal Agent in accordance with the terms of the Permanent Phase Borrower Note and the Borrower Loan Agreement, and no separate notice of prepayment of the Governmental Lender Note is required to be given. ARTICLE IV SECURITY Section 4.1. Security for the Funding Loan. To secure the payment of the Funding Loan and the Governmental Lender Note, to declare the terms and conditions on which the Funding Loan and the Governmental Lender Note is secured, and in consideration of the premises and of the funding of the Funding Loan by the Funding Lender, the Governmental Lender by these presents does grant, bargain, sell, remise, release, convey, assign, transfer, mortgage, hypothecate, pledge, set over and confirm to the 16 4856-5616-9347.5 Funding Lender for the benefit of the holder from time to time of the Governmental Lender Note or any interests therein, a lien on and security interest in the following described property (excepting, however, the Unassigned Rights) (said property, rights and privileges being herein collectively called, the “Security”): (a) All right, title and interest of the Governmental Lender in, to and under the Borrower Loan Agreement and the Permanent Phase Borrower Note, including, without limitation, all rents, revenues and receipts derived thereunder by the Governmental Lender from the Borrower relating to the Project and including, without limitation, all Pledged Revenues, Borrower Loan Payments and Additional Borrower Payments (except those related to the Unassigned Rights) derived by the Governmental Lender under and pursuant to, and subject to the provisions of, the Borrower Loan Agreement; provided that the pledge and assignment made under this Funding Loan Agreement shall not impair or diminish the obligations of the Governmental Lender under the provisions of the Borrower Loan Agreement; (b) All right, title and interest of the Governmental Lender in, to and under, together with all rights, remedies, privileges and options pertaining to, the Funding Loan Documents, and all other payments, revenues and receipts derived by the Governmental Lender under and pursuant to, and subject to the provisions of, the Funding Loan Documents; (c) Any and all moneys and investments from time to time on deposit in, or forming a part of, all funds and accounts created and held under this Funding Loan Agreement (other than the Administration Fund and the Rebate Fund), subject to the provisions of this Funding Loan Agreement permitting the application thereof for the purposes and on the terms and conditions set forth herein; and (d) Any and all other real or personal property of every kind and nature or description, which may from time to time hereafter, by delivery or by writing of any kind, be subjected to the lien of this Funding Loan Agreement as additional security by the Governmental Lender or anyone on its part or with its consent, or which pursuant to any of the provisions hereof or of the Borrower Loan Agr eement may come into the possession or control of the Fiscal Agent or the Funding Lender or a receiver appointed pursuant to this Funding Loan Agreement; and the Fiscal Agent or the Funding Lender is hereby authorized to receive any and all such property as and for additional security for the Funding Loan and the Governmental Lender Note and to hold and apply all such property subject to the terms hereof. The pledge and assignment of and the security interest granted in the Security pursuant to this Section 4.1 for the payment of the principal of, premium, if any, and interest on the Governmental Lender Note, in accordance with its terms and provisions, and for the payment of all other amounts due hereunder, shall attach and be valid and binding from and after the time of the delivery of the Governmental Lender Note by the Governmental Lender. The Security so pledged and then or thereafter received by the Fiscal Agent or the Funding Lender shall immediately be subject to the lien of such pledge and security interest without any physical delivery or recording thereof or further act, and the lien of such pledge and security interest shall be valid and binding and prior to the claims of any and all parties having claims of any kind in tort, contract or otherwise against the Governmental Lender irrespective of whether such parties have notice thereof. Section 4.2. Delivery of Security. In order to secure payment of the Funding Loan and the Governmental Lender Note, the Governmental Lender has pledged and assigned its right, title and interest in the Security to the Funding Lender. In connection with such pledge, assignment, transfer and conveyance, the Governmental Lender shall deliver to the Funding Lender the following documents or instruments promptly following their execution and, to the extent applicable, their recording or filing: 17 4856-5616-9347.5 (a) The Permanent Phase Borrower Note endorsed without recourse to the Funding Lender by the Governmental Lender; (b) The originally executed Borrower Loan Agreement and Regulatory Agreement; (c) The originally executed Security Instrument and all other Borrower Loan Documents existing at the time of delivery of the Permanent Phase Borrower Note and an assignment for security of the Security Instrument from the Governmental Lender to the Funding Lender, in recordable form; (d) Uniform Commercial Code financing statements or other chattel security documents giving notice of the Funding Lender’s status as an assignee of the Governmental Lender’s security interest in any personal property forming part of the Project, in form suitable for filing; and (e) Uniform Commercial Code financing statements giving notice of the pledge by the Governmental Lender of the Security pledged under this Funding Loan Agreement. The Governmental Lender shall, at the expense of the Borrower, deliver and deposit with the Fiscal Agent or the Funding Lender such additional documents, financing statements, and instruments as the Funding Lender may reasonably require and direct from time to time for the better perfecting and assuring to the Funding Lender of its lien and security interest in and to the Security. ARTICLE V LIMITED LIABILITY Section 5.1. Source of Payment of Funding Loan, the Governmental Lender Note and Other Obligations. The Governmental Lender Note evidencing the Funding Loan is a revenue obligation of the Governmental Lender, payable solely from the Pledged Revenues and other funds and moneys and Security pledged and assigned hereunder. None of the Governmental Lender, the State, or any political subdivision thereof nor any public agency shall in any event be liable for the payment of the principal of, premium (if any) or interest on the Governmental Lender Note and the Funding Loan or for the performance of any pledge, obligation or agreement of any kind whatsoever with respect thereto except as set forth herein, and none of the Funding Loan or the Governmental Lender Note or any of the Governmental Lender’s agreements or obligations shall be construed to constitute an indebtedness of or a pledge of the faith and credit of or a loan of the credit of or a moral obligation of any of the foregoing within the meaning of any constitutional or statutory provision whatsoever. Neither the faith, revenues, credit nor taxing power of the Governmental Lender, the State or any other political corporation or subdivision or agency thereof shall be pledged to the payment of the principal of, premium (if any), or interest on the Governmental Lender Note or this Funding Loan Agreement. Section 5.2. Exempt from Individual Liability. No recourse under or upon any obligation, covenant, warranty or agreement contained in this Funding Loan Agreement or in the Governmental Lender Note, or under any judgment obtained against the Governmental Lender, or the enforcement of any assessment, or any legal or equitable proceedings by virtue of any constitution or statute or otherwise, or under any circumstances under or independent of this Funding Loan Agreement, shall be had against any of the members, officers, agents or employees of the Governmental Lender (past, present or future), either directly or through the Governmental Lender or otherwise, for the payment for or to the Governmental Lender or any receiver of the Governmental Lender, or for or to the owner of the Governmental Lender Note, or otherwise, of any sum that may be due and unpaid by the Governmental Lender upon the Governmental Lender Note. Any and all personal liability of every nature whether at common law or in equity or by statute or by constitution or otherwise of any such member, officer, agent or employee, as such, by reason of any act of omission on his or her part or otherwise, for the payment for or to the owner of a 18 4856-5616-9347.5 Governmental Lender Note or otherwise of any sum that may remain due and unpaid upon a Governmental Lender Note secured by this Funding Loan Agreement or any of them is, by the acceptance of the Governmental Lender Note, expressly waived and released as a condition of and in consideration for the execution of this Funding Loan Agreement and the delivery of the Governmental Lender Note. Anything in this Funding Loan Agreement to the contrary notwithstanding, it is expressly understood by the parties to this Funding Loan Agreement that (a) the Governmental Lender may rely exclusively on the truth and accuracy of any certificate, opinion, notice or other instrument furnished to the Governmental Lender by the Fiscal Agent, the Servicer, the Borrower or the owner of the Governmental Lender Note as to the existence of any fact or state of affairs, (b) the Governmental Lender shall not be under any obligation under this Funding Loan Agreement to perform any record keeping or to provide any legal services, it being understood that such services shall be performed or caused to be performed by the Fiscal Agent or by the Servicer and its respective counsel, as applicable, and (c) none of the provisions of this Funding Loan Agreement shall require the Governmental Lender to expend or risk its own funds or otherwise to incur financial liability in the performance of any of its duties or in the exercise of any of i ts rights or powers under this Funding Loan Agreement, unless it shall first have been adequately indemnified to its satisfaction against any costs, expenses and liability which it may incur as a result of taking such action. No recourse for the payment of any part of the principal of, premium, if any, or interest on the Governmental Lender Note or for the satisfaction of any liability arising from, founded upon or existing by reason of the initial delivery, purchase or ownership of a Governmental Lender Note shall be had against any officer, member, agent or employee of the Governmental Lender, as such, all such liability being expressly released and waived as a condition of and as a part of the consideration for the execution of this Funding Loan Agreement and the delivery of the Governmental Lender Note. No covenant, stipulation, obligation or agreement of the Governmental Lender contained in this Funding Loan Agreement shall be deemed to be a covenant, stipulation, obligation or agreement of any present or future member, officer, agent or employee of the Governmental Lender in other than that person’s official capacity. No member, officer, agent or employee of the Governmental Lender shall be individually or personally liable for the payment of the prin cipal or redemption price of or interest on the Governmental Lender Note or be subject to any personal liability or accountability by reason of the delivery of the Governmental Lender Note. It is recognized that notwithstanding any other provision of this Funding Loan Agreement, neither the Borrower, the Fiscal Agent nor any owner of the Governmental Lender Note shall look to the Governmental Lender for damages suffered by the Borrower, the Fiscal Agent or such owner as a result of the failure of the Governmental Lender to perform any covenant, undertaking or obligation under this Funding Loan Agreement, the Borrower Loan Agreement, the Governmental Lender Note or any of the other documents referred to herein, or as a result of the incorrectness of any repre sentation made by the Governmental Lender in any of such documents, or for any other reason. Although this Funding Loan Agreement recognizes that such documents shall not give rise to any pecuniary liability of the Governmental Lender, nothing contained in this Funding Loan Agreement shall be construed to preclude in any way any action or proceeding (other than that element of any action or proceeding involving a claim for monetary damages against the Governmental Lender) in any court or before any governmental body, agency or instrumentality or otherwise against the Governmental Lender or any of its officers or employees to enforce the provisions of any of such documents which the Governmental Lender is obligated to perform and the performance of which the Governmental Lender has not assigned to the Fiscal Agent or any other person. Section 5.3. Revenue Obligation. Notwithstanding any other provision of this Funding Loan Agreement to the contrary: THE GOVERNMENTAL LENDER NOTE IS ISSUED PURSUANT TO THE COUNTY AUTHORIZATION, THE RESOLUTION AND IN ACCORDANCE WITH THE ACT, AND ARE REVENUE OBLIGATIONS OF THE GOVERNMENTAL LENDER. NEITHER THE 19 4856-5616-9347.5 GOVERNMENTAL LENDER NOR ANY OFFICIAL OR EMPLOYEE OF THE GOVERNMENTAL LENDER NOR ANY PERSON EXECUTING A GOVERNMENTAL LENDER NOTE SHALL BE LIABLE PERSONALLY ON SUCH GOVERNMENTAL LENDER NOTE OR SUBJECT TO ANY PERSONAL LIABILITY OR ACCOUNTABILITY BY REASON OF ITS ISSUANCE. THE GOVERNMENTAL LENDER NOTE AND THE INTEREST THEREON ARE REVENUE OBLIGATIONS OF THE GOVERNMENTAL LENDER, PAYABLE ONLY FROM THE SOURCES DESCRIBED IN THIS FUNDING LOAN AGREEMENT. NEITHER THE GOVERNMENTAL LENDER, THE STATE NOR ANY OTHER POLITICAL CORPORATION OR SUBDIVISION OR AGENCY THEREOF SHALL BE OBLIGATED TO PAY THE PRINCIPAL OF THE GOVERNMENTAL LENDER NOTE OR THE INTEREST THEREON OR OTHER COSTS INCIDENT THERETO EXCEPT FROM THE MONEY PLEDGED THEREFOR. NEITHER THE FAITH AND CREDIT NOR THE TAXING POWER OF THE STATE NOR ANY POLITICAL CORPORATION OR SUBDIVISION OR AGENCY THEREOF NOR THE FAITH AND CREDIT OF THE GOVERNMENTAL LENDER IS PLEDGED TO THE PAYMENT OF THE PRINCIPAL OF, PREMIUM, IF ANY, OR INTEREST ON THE GOVERNMENTAL LENDER NOTE OR OTHER COSTS INCIDENT THERETO. THE GOVERNMENTAL LENDER NOTE IS NOT A DEBT OF THE UNITED STATES OF AMERICA. ARTICLE VI RESERVED ARTICLE VII FUNDS AND ACCOUNTS Section 7.1. Authorization to Create Funds and Accounts. Except as provided in Section 7.3 hereof, no funds or accounts shall be established in connection with the Funding Loan. The Fiscal Agent is authorized to establish and create from time to time such other funds a nd accounts or subaccounts as directed by the Funding Lender or, if there is a Servicer, by the Servicer, as may be necessary for the deposit of moneys (including, without limitation, insurance proceeds and/or condemnation awards), if any, received by the Governmental Lender, the Funding Lender, the Fiscal Agent or the Servicer pursuant to the terms hereof or any of the other Funding Loan Documents and not immediately transferred or disbursed pursuant to the terms of the Funding Loan Documents and/or the Borrower Loan Documents. Section 7.2. Investment of Funds. Amounts held in any funds or accounts created by the Fiscal Agent under this Funding Loan Agreement shall be invested in Permitted Investments at the written direction of the Borrower, subject in all cases to the restrictions of Section 8.7 hereof and of the Tax Certificate. The Fiscal Agent may make any and all such investments through its own investment department or that of its affiliates or subsidiaries, and may charge its ordinary and customary fees for such trades, including account maintenance fees. The Fiscal Agent may conclusively rely upon the Borrower’s written instructions as to both the suitability and legality of any directed investments. In the absence of written direction from the Borrower, the Fiscal Agent shall hold such amounts on deposit in the funds and accounts established under this Funding Loan Agreement uninvested. The Fiscal Agent shall have no liability in respect of losses incurred as a result of the liquidation of any investment prior to its stated maturity or the failure of the Borrower to provide timely written investment direction. Although the Governmental Lender and the Borrower each recognizes that it may obtain a broker confirmation or written statement containing comparable information at no additional cost, the Governmental Lender and the Borrower hereby agree that confirmations of Permitted Investments are not required to be issued by the Fiscal Agent for each month in which a monthly statement is rendered. No 20 4856-5616-9347.5 statement need be rendered for any fund or account if no activity occurred in such fund or account during such month. Section 7.3. Establishment of Funds and Accounts. In connection with the Funding Loan, there were established with the Fiscal Agent the following funds and accounts: (a) Project Fund; (b) Revenue Fund; (c) Loan Payment Fund; (d) Administration Fund (and therein a Governmental Lender Conversion Fee Account); (e) Cost of Issuance Fund; and (f) Rebate Fund. Upon Conversion, the Project Fund, the accounts therein, the Governmental Lender Conversion Fee Account and the Cost of Issuance Fund are closed. All money required to be deposited with or paid to the Fiscal Agent for the account of any of the funds or accounts created by this Funding Loan Agreement shall be held by the Fiscal Agent for the benefit of the Funding Lender, and except for money held in the Administration Fund and Rebate Fund, shall, while held by the Fiscal Agent, constitute part of the Pledged Revenues and be subject to the lien hereof. The Fiscal Agent shall provide Written Notice of any change to its wiring instructions to the Funding Lender and the Borrower no less than five (5) Business Days prior to the next payment date for which such revised instructions will be applicable. Section 7.4. Loan Payment Fund. The Governmental Lender and the Borrower shall have no interest in the Loan Payment Fund or the moneys therein, which shall always be maintained by the Fiscal Agent completely separate and segregated from all other moneys held hereunder and from any other moneys of the Governmental Lender and the Borrower. The Fiscal Agent shall deposit into the Loan Payment Fund any amounts received from the Borrower as payments of principal of, premium, if any, or interest on the Permanent Phase Borrower Loan and any other amounts received by the Fiscal Agent that are subject to the lien and pledge of this Funding Loan Agreement, including any Pledged Revenues not required to be deposited to the Administration Fund or Rebate Fund or not otherwise specifically directed in writing to be deposited into other funds created by this Funding Loan Agreement. The Fiscal Agent shall apply all amounts on deposit in the Loan Payment Fund in the following order of priority: First, to pay or provide for the payment of the interest then due on the Governmental Lender Note; Second, to pay or provide for the payment and premium, if any, or the prepayment of principal on the Governmental Lender Note, provided moneys have been transferred or deposited into the Loan Payment Fund for such purpose; and Third, to pay or provide for the payment of the Governmental Lender Note on the Maturity Date. 21 4856-5616-9347.5 If the Fiscal Agent has not received, by 2:00 p.m. Eastern time on the date interest is due on the Governmental Lender Note, an amount sufficient to pay such interest, the Fiscal Agent shall provide immediate telephonic or electronic notice to the Funding Lender of such deficiency. The Fiscal Agent may rely on the payment terms of the Governmental Lender Note for purposes of payments described above. Section 7.5. Administration Fund. The Fiscal Agent shall deposit in the Administration Fund the amounts required by the Borrower Loan Agreement to be paid by the Borrower to the Governmental Lender or the Fiscal Agent, as provided in this Section 7.5. Amounts on deposit in the Administration Fund shall be used to pay the fees and expenses of the Governmental Lender and the Fiscal Agent, as and when the same become due. In that regard, moneys in the Administration Fund shall be withdrawn or maintained, as appropriate, by the Fiscal Agent to pay (a) the Governmental Lender Fee when due and payable, (b) on each December 1 and June 1 to the Fiscal Agent amounts due pursuant to subparts (i) and (ii) of the definition of “Fiscal Agent’s Fees” herein, (c) upon receipt, to the Fiscal Agent, any amounts due to the Fiscal Agent which have not been paid, other than amounts paid in accordance with clause (b) above, and (d) upon receipt, to, or at the direction of, the Governmental Lender, any amounts owing the Governmental Lender by the Borrower and then due and unpaid, other than amounts paid in accordance with clause (a) above. In the event that the amounts on deposit in the Administration Fund are not equal to the amounts payable from the Administration Fund as provided in the preceding paragraph on any date on which such amounts are due and payable, the Fiscal Agent shall give notice to the Borrower of such deficiency and of the amount of such deficiency and request payment within two Business Days to the Fiscal Agent of the amount of such deficiency. Written notice of any insufficiency, which results in the Governmental Lender not receiving the Governmental Lender Fee on the applicable due date, shall be provided by the Fiscal Agent to the Governmental Lender (with a copy to the Borrower and the Funding Lender) within 10 days of the respective due date. Upon payment by the Borrower to the Fiscal Agent of such deficiency, the amounts for which such deficiency was requested shall be paid by the Fiscal Agent. Notwithstanding anything herein to the contrary, the Fiscal Agent, on behalf of the Governmental Lender, shall prepare and submit a written invoice to the Borrower for payment of the Governmental Lender Fee not later than 10 days prior to the due date for payment of such Governmental Lender Fee, and shall remit moneys received from the Borrower to the Governmental Lender for payment of such fee. Failure of the Fiscal Agent to prepare or submit such notice shall not excuse the Borrower from making the required payments. Section 7.6. Project Fund. Proceeds of the Funding Loan provided by the Initial Funding Lender were deposited to the Note Proceeds Account of the Project Fund and disbursed in accordance with the Funding Loan Agreement to pay Qualified Project Costs and to pay other costs related to the Project as provided therein. Not less than 95% of the moneys deposited in and credited to the Note Proceeds Account of the Project Fund representing the proceeds of the Funding Loan, including Investment Income thereon, have been expended for Qualified Project Costs (the “95% Requirement”). The Project Fund is closed. Section 7.7. Rebate Fund. All amounts in the Rebate Fund shall be held, invested and disbursed by the Fiscal Agent in accordance with the provisions of the Tax Certificate, the terms of which are incorporated herein by reference and made a part hereof as if fully set forth herein. The Borrower shall have the absolute obligation to deposit funds into the Rebate Fund in accordance with the provisions of the Tax Certificate. The Fiscal Agent shall make rebate payments to the United States Treasury in accordance 22 4856-5616-9347.5 with the applicable provisions of the Tax Certificate. The Fiscal Agent shall conclusively be deemed to have complied with such provisions if it follows the written instructions of the Borrower or the Rebate Analyst and shall not be required to take any actions under the Tax Certificate on behalf of the Borrower in the absence of written instructions from the Borrower and the Rebate Analyst. Section 7.8. Amounts Remaining in Funds. After full payment of the Funding Loan and full payment of the fees, charges and expenses of the Fiscal Agent, the Governmental Lender, the Rebate Analyst, the Funding Lender and the Servicer and other amounts required to be paid hereunder or under any Borrower Loan Document (as certified in writing to the Fiscal Agent by the Governmental Lender with respect to amounts due to the Governmental Lender and by the Rebate Analyst with respect to amounts due to the Rebate Analyst), any amounts remaining in any fund or account hereunder other than the Rebate Fund shall be paid to the Borrower.. ARTICLE VIII REPRESENTATIONS AND COVENANTS Section 8.1. General Representations. The Governmental Lender makes the following representations as the basis for the undertakings on its part herein contained: (g) The Governmental Lender is a public body corporate and politic under the Act, has the power and authority to (i) enter into the Funding Loan Documents to which it is a party and the transactions contemplated thereby, (ii) incur the indebtedness represented by the Governmental Lender Note and the Funding Loan and apply the proceeds of such indebtedness to finance a portion of the costs of the Project and (iii) carry out its other obligations under this Funding Loan Agreement and the Governmental Lender Note, and by proper action has duly authorized the Governmental Lender’s execution and delivery of, and its performance under, such Funding Loan Documents and all other agreements and instruments relating thereto. (h) The Governmental Lender is not in default under or in violation of, and the execution and delivery of the Funding Loan Documents to which it is a party and its compliance with the terms and conditions thereof will not conflict with or constitute a default under or a violation of, (i) the Act or the County Authorization, (ii) to its knowledge, any other existing laws, rules, regulations, judgments, decrees and orders applicable to it, or (iii) to its knowledge, the provisions of any agreements and instruments to which the Governmental Lender is a party, a default under or violation of which would prevent it from entering into this Funding Loan Agreement, executing and delivering the Governmental Lender Note, financing the Project, executing and delivering the other Funding Loan Documents to which it is a party or consummating the transactions contemplated thereby, and, to its knowledge, no event has occurred and is continuing under the provisions of any such agreement or instrument or otherwise that with the lapse of time or the giving of notice, or both, would constitute such a default or violation (it being understood, however, that the Governmental Lender is making no representations as to the necessity of registering the Permanent Phase Borrower Note pursuant to any securities laws or complying with any other requirements of securities laws). (i) No litigation, inquiry or investigation of any kind in or by any judicial or administrative court or agency is pending or, to the knowledge of the Governmental Lender, threatened against the Governmental Lender with respect to (i) the organization and existence of the Governmental Lender, (ii) its authority to execute or deliver the Funding Loan Documents to which it is a party, (iii) the validity or enforceability of any such Funding Loan Documents or the transactions contemplated thereby, (iv) the title of any officer of the Governmental Lender who executed such Funding Loan Documents or (v) any 23 4856-5616-9347.5 authority or proceedings relating to the execution and delivery of such Funding Loan Documents on behalf of the Governmental Lender, and no such authority or proceedings have been repealed, revoked, rescinded or amended but are in full force and effect. (j) The revenues and receipts to be derived from the Borrower Loan Agreement, the Permanent Phase Borrower Note and this Funding Loan Agreement have not been pledged previously by the Governmental Lender to secure any of its notes or bonds other than the Funding Loan as evidenced by the Governmental Lender Note. THE GOVERNMENTAL LENDER MAKES NO REPRESENTATION, COVENANT OR AGREEMENT AS TO THE FINANCIAL POSITION OR BUSINESS CONDITION OF THE BORROWER OR THE PROJECT AND DOES NOT REPRESENT OR WARRANT AS TO ANY STATEMENTS, MATERIALS, REPRESENTATIONS OR CERTIFICATIONS FURNISHED BY THE BORROWER IN CONNECTION WITH THE FUNDING LOAN OR AS TO THE CORRECTNESS, COMPLETENESS OR ACCURACY THEREOF. Section 8.2. No Encumbrance on Security. The Governmental Lender will not knowingly create or knowingly permit the creation of any mortgage, pledge, lien, charge or encumbrance of any kind on the Security or any part thereof prior to or on a parity with the lien of this Funding Loan Agreement, except as expressly permitted or contemplated by the Funding Loan Documents. Section 8.3. Repayment of Funding Loan. Solely from amounts pledged therefor, and subject to the provisions of Article V hereof, the Governmental Lender will duly and punctually repay, or cause to be repaid, the Funding Loan, as evidenced by the Governmental Lender Note, as and when the same shall become due, all in accordance with the terms of the Governmental Lender Note and this Funding Loan Agreement. Section 8.4. Servicer. The Funding Lender may appoint a Servicer to service and administer the Governmental Loan and/or the Permanent Phase Borrower Loan on behalf of the Funding Lender and the Fiscal Agent, including without limitation the fulfillment of rights and responsibilities granted by Governmental Lender to Funding Lender pursuant to Section 2.1 of the Borrower Loan Agreement. Section 8.5. Borrower Loan Agreement Performance. The Funding Lender, the Fiscal Agent and the Servicer, if any, on behalf of the Governmental Lender, may (but shall not be required or obligated to) perform and observe any such agreement or covenant of the Governmental Lender under the Borrower Loan Agreement, all to the end that the Governmental Lender’s rights under the Borrower Loan Agreement may be unimpaired and free from default. (b) The Governmental Lender will promptly notify the Borrower, the Fiscal Agent, the Servicer, if any, and the Funding Lender in writing of the occurrence of any Borrower Loan Agreement Default, provided that the Governmental Lender has received written notice or otherwise has knowledge of such event. Section 8.6. Maintenance of Records; Inspection of Records. The Fiscal Agent shall keep and maintain adequate records pertaining to any funds and accounts established hereunder, including all deposits to and disbursements from said funds and accounts and shall keep and maintain the registration books for the Governmental Lender Note and interests therein. The Fiscal Agent shall retain in its possession all certifications and other documents presented to it, all such records and all records of principal, interest and premium paid on the Governmental Lender Note, subject to the inspection of the Funding Lender and the Governmental Lender and their representatives at all reasonable times and upon reasonable prior notice. 24 4856-5616-9347.5 (d) The Governmental Lender and the Funding Lender will at any and all times, upon the reasonable request of the Servicer, if any, the Borrower, the Fiscal Agent, the Governmental Lender or the Funding Lender, afford and procure a reasonable opportunity by their respective representatives to inspect the books, records, reports and other papers of the Governmental Lender or the Funding Lender, as appropriate, relating to the Project and the Funding Loan, if any, and to make copies thereof. Section 8.7. Tax Covenants. The Governmental Lender covenants to and for the benefit of the Funding Lender that, notwithstanding any other provisions of this Funding Loan Agreement or of any other instrument, it will (subject to the limited liability provisions hereof): (a) Enforce or cause to be enforced all obligations of the Borrower under the Regulatory Agreement in accordance with its terms and seek to cause the Borrower to correct any violation of the Regulatory Agreement within a reasonable period after any such violation is first discovered; (b) Not take or cause to be taken any other action or actions, or fail to take any action or actions, which would cause the interest payable on the Governmental Lender Note to be includable in gross income for federal income tax purposes; (c) At all times do and perform all acts and things permitted by law and necessary or desirable in order to assure that interest paid by the Governmental Lender on the Governmental Lender Note will be excluded from the gross income of the holders of the Governmental Lender Note, for federal income tax purposes, pursuant to Section 103 of the Code, except in the event where any holder of the Governmental Lender Note or a portion thereof is a “substantial user” of the facilities financed with the Funding Loan or a “related person” within the meaning of Section 147(a) of the Code; (d) Not take any action or permit or suffer any action to be taken if the result of the same would be to cause the Governmental Lender Note to be “federally guaranteed” within the meaning of Section 149(b) of the Code and the Regulations; and (e) Require the Borrower to agree, pursuant to the terms and provisions of the Borrower Loan Agreement, not to commit any act and not to make any use of the proceeds of a Governmental Lender Note, or any other moneys which may be deemed to be proceeds of such Governmental Lender Note pursuant to the Code, which would cause such Governmental Lender Note to be an “arbitrage bond” within the meaning of Sections 103(b) and 148 the Code, and to comply with the requirements of the Code throughout the term of the Funding Loan; and (f) Require the Borrower to take all steps necessary to compute and pay or cause to be paid pursuant to the provisions of Section 7.7 hereof any rebatable arbitrage in accordance with Section 148(f) of the Code in accordance with the applicable provisions of the Tax Certificate. (g) In furtherance of the covenants in this Section 8.7, the Governmental Lender and the Borrower have executed, delivered and complied with the provisions of the Tax Certificate, which are by this reference incorporated into this Funding Loan Agreement and made a part of this Funding Loan Agreement as if set forth in this Funding Loan Agreement in full. For purposes of this Section 8.7 the Governmental Lender’s compliance shall be based solely on matters within the Governmental Lender’s control and no acts, omissions or directions of the Borrower, the Fiscal Agent, the Funding Lender or any other Persons shall be attributed to the Governmental Lender. In complying with the foregoing covenants, the Governmental Lender may rely from time to time on a Tax Counsel No Adverse Effect Opinion or other appropriate opinion of Tax Counsel. 25 4856-5616-9347.5 Section 8.8. Performance by the Borrower. Without relieving the Governmental Lender from the responsibility for performance and observance of the agreements and covenants required to be performed and observed by it hereunder, the Borrower, on behalf of the Governmental Lender, may perform any such agreement or covenant if no Borrower Loan Agreement Default or Potential Default under the Borrower Loan Agreement exists. Section 8.9. Maintenance of Records. The Funding Lender shall keep and maintain adequate records pertaining to funds and accounts relative to the Permanent Phase Borrower Loan not established with the Fiscal Agent, if any, including all deposits to and disbursements from said funds and accounts and will provide information and records relating thereto to the Fiscal Agent or the Governmental Lender upon request. ARTICLE IX DEFAULT; REMEDIES Section 9.1. Events of Default. Subject in all respects to Article V hereof, any one or more of the following shall constitute an event of default (an “Event of Default”) under this Funding Loan Agreement (whatever the reason for such event and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body): (a) A default in the payment of any interest upon the Governmental Lender Note when such interest becomes due and payable; or (b) A default in the payment of principal of, or premium on, the Governmental Lender Note when such principal or premium becomes due and payable, whether at its stated maturity, by declaration of acceleration or call for mandatory prepayment or otherwise; or (c) Subject to Section 8.8 hereof, default in the performance or breach of any material covenant or warranty of the Governmental Lender in this Funding Loan Agreement (other than a covenant or warranty or default in the performance or breach of which is elsewhere in this Section specifically dealt with), and continuance of such default or breach for a period of 30 days after there has been given written notice, as provided in Section 12.1 hereof, to the Governmental Lender, the Fiscal Agent and the Borrower by the Funding Lender or the Servicer, specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default” under this Funding Loan Agreement; provided that, so long as the Governmental Lender, or the Borrower or Equity Investor on behalf of the Governmental Lender, has commenced to cure such failure to observe or perform within the thirty (30) day cure period and the subject matter of the default is not capable of cure within said thirty (30) day period and the Governmental Lender, or the Borrower or Equity Investor on behalf of the Governmental Lender, is diligently pursuing such cure to the Funding Lender’s satisfaction, with the Funding Lender’s Written Direction or Written Consent, then the Governmental Lender shall have an additional period of time as reasonably necessary (not to exceed 30 days unless extended in writing by the Funding Lender) within which to cure such default; or (d) A default in the payment of any Additional Borrower Payments; or (e) Any other “Default” or “Event of Default” under any of the other Funding Loan Documents to which the Governmental Lender is a party and is an obligor thereunder or, upon the Written Direction of the Funding Lender, under any other Funding Loan Document (taking into account any applicable grace periods therein). 26 4856-5616-9347.5 Any notice of default delivered by the Funding Lender to the Borrower shall be contemporaneously delivered to the Equity Investor. Section 9.2. Acceleration of Maturity; Rescission and Annulment. (a) Subject to the provisions of Article V and Section 9.9 hereof, upon the occurrence of an Event of Default under Section 9.1 hereof, then and in every such case, the Funding Lender may declare the principal of the Funding Loan and the Governmental Lender Note and the interest accrued to be immediately due and payable, by notice to the Fiscal Agent, the Governmental Lender and the Borrower and upon any such declaration, all principal of and Prepayment Premium, if any, and interest on the Governmental Lender Note shall become immediately due and payable. (b) At any time after a declaration of acceleration has been made pursuant to subsection (a) of this Section, the Funding Lender may by Written Notice to the Fiscal Agent, the Borrower and the Governmental Lender, rescind and annul such declaration and its consequences if: (i) The Borrower has deposited with the Fiscal Agent or the Funding Lender a sum sufficient to pay (1) all overdue installments of interest on the Governmental Lender Note, (2) the principal of and Prepayment Premium on the Governmental Lender Note that has become due otherwise than by such declaration of acceleration and interest thereon at the rate or rates prescribed therefor in the Governmental Lender Note, (3) to the extent that payment of such interest is lawful, interest upon overdue installments of interest at the rate or rates prescribed therefor in the Governmental Lender Note, and (4) all sums paid or advanced by the Funding Lender and the reasonable compensation, expenses, disbursements and advances of the Funding Lender, its agents and counsel (but only to the extent not duplicative with subclauses (1) and (3) above); and (ii) All Events of Default, other than the non-payment of the principal of the Governmental Lender Note which have become due solely by such declaration of acceleration, have been cured or have been waived in writing as provided in Section 9.9 hereof. No such rescission and annulment shall affect any subsequent default or impair any right consequent thereon. (c) Notwithstanding the occurrence and continuation of an Event of Default, it is understood that the Funding Lender shall pursue no remedies against the Borrower or the Project if no Borrower Loan Agreement Default has occurred and is continuing. An Event of Default hereunder shall not in and of itself constitute a Borrower Loan Agreement Default. Section 9.3. Additional Remedies; Funding Lender Enforcement. (a) Upon the occurrence of an Event of Default, the Funding Lender may, subject to the provisions of Article V, this Section 9.3 and Section 9.9 hereof, proceed to protect and enforce its rights by mandamus or other suit, action or proceeding at law or in equity. No remedy conferred by this Funding Loan Agreement upon, or remedy reserved to the Funding Lender is intended to be exclusive of any other remedy, but each such remedy shall be cumulative and shall be in addition to any other remedy given to the Funding Lender hereunder or now or hereafter existing at law or in equity or by statute. The Funding Lender acknowledges and agrees that the Governmental Lender shall not be responsible or liable for any fees and expenses incurred by the Funding Lender in connection with pursuing remedies under this Article IX. 27 4856-5616-9347.5 (b) Upon the occurrence and continuation of any Event of Default, the Funding Lender may proceed forthwith to protect and enforce its rights and this Funding Loan Agreement by such suits, actions or proceedings as the Funding Lender, in its sole discretion, shall deem expedient. Funding Lender shall have upon the occurrence and continuation of any Event of Default all rights, powers, and remedies with respect to the Security as are available under the Uniform Commercial Code applicable thereto or as are available under any other applicable law at the time in effect and, without limiting the generality of the foregoing, the Funding Lender may proceed at law or in equity or otherwise, to the extent permitted by applicable law: (i) to take possession of the Security or any part thereof, with or without legal process, and to hold, service, administer and enforce any rights thereunder or thereto, and otherwise exercise all rights of ownership thereof, including (but not limited to) the sale of all or part of the Security; (ii) to become mortgagee of record for the Permanent Phase Borrower Loan including, without limitation, completing the assignment of the Security Instrument by the Governmental Lender to the Funding Lender as anticipated by this Funding Loan Agreement, and recording the same in the real estate records of the jurisdiction in which the Project is located, without further act or consent of the Governmental Lender, and to service and administer the same for its own account; (iii) to service and administer the Funding Loan as agent and on behalf of the Governmental Lender or otherwise, and, if applicable, to take such actions necessary to enforce the Borrower Loan Documents and the Funding Loan Documents on its own behalf, and to take such alternative courses of action, as it may deem appropriate; or (iv) to take such steps to protect and enforce its rights whether by action, suit or proceeding in equity or at law for the specific performance of any covenant, condition or agreement in the Governmental Lender Note, this Funding Loan Agreement or the other Funding Loan Documents, or the Borrower Loan Documents, or in and of the execution of any power herein granted, or for foreclosure hereunder, or for enforcement of any other appropriate legal or equitable remedy or otherwise as the Funding Lender may elect. (c) Whether or not an Event of Default has occurred, the Funding Lender, in its sole discretion, shall have the sole right to waive or forbear any term, condition, covenant or agreement of the Security Instrument, the Borrower Loan Agreement, the Permanent Phase Borrower Note or any other Borrower Loan Documents or Funding Loan Documents applicable to the Borrower, or any breach thereof, other than a covenant that would adversely impact the tax exempt status of the interest on t he Governmental Lender Note, and provided that the Governmental Lender may enforce specific performance with respect to the Unassigned Rights; provided, however, that any such forbearance by the Funding Lender in the exercise of its remedies under the Funding Loan Documents shall not be construed as a waiver by the Funding Lender of any Conditions to Conversion. (d) If the Borrower defaults in the performance or observance of any covenant, agreement or obligation of the Borrower set forth in the Regulatory Agreement, and if such default remains uncured for a period of 60 days after the Borrower, the Governmental Lender, the Fiscal Agent and the Funding Lender receive Written Notice stating that a default under the Regulatory Agreement has occurred and specifying the nature of the default, the Funding Lender shall have the right to seek specific performance of the provisions of the Regulatory Agreement or to exercise its other rights or remedies thereunder; provided, however, that any such forbearance by the Funding Lender in the exercise of its remedies under the Funding Loan Documents shall not be construed as a waiver by the Funding Lender of any Conditions to Conversion. 28 4856-5616-9347.5 (e) If the Borrower defaults in the performance of its obligations under the Borrower Loan Agreement to make rebate payments, to comply with any applicable continuing disclosure requirements, or to make payments owed pursuant to Sections 2.5, 5.15 or 5.16 of the Borrower Loan Agreement for fees, expenses or indemnification, the Funding Lender shall have the right to exercise all its rights and remedies thereunder (subject to the last paragraph of Section 9.14 hereof). Section 9.4. Application of Money Collected. Any money collected by the Funding Lender or the Fiscal Agent pursuant to this Article and any other sums then held by the Funding Lender as part of the Security, shall be applied in the following order, at the date or dates fixed by the Funding Lender: First: To the payment of any and all other amounts due under the Funding Loan Documents to the Fiscal Agent incurred in performance of its duties under this Funding Loan Agreement, including, without limitation, the payment of all reasonable fees and expenses of the Fiscal Agent incurred in exercising any remedies under this Funding Loan Agreement; Second: To the payment of any and all other amounts due under the Funding Loan Documents other than with respect to principal and interest accrued on the Funding Loan, including, without limitation, any amounts due to the Governmental Lender, the Funding Lender, the Servicer, and the Rebate Analyst; Third: To the payment of the whole amount of the Funding Loan, as evidenced by the Governmental Lender Note, then due and unpaid in respect of which or for the benefit of which such money has been collected, with interest (to the extent that such interest has been collected or a sum sufficient therefor has been so collected and payment thereof is legally enforceable at the respective rate or rates prescribed therefor in the Governmental Lender Note) on overdue principal of, and Prepayment Premium and overdue installments of interest on the Governmental Lender Note; provided, however, that partial interests in any portion of the Funding Loan, as evidenced by the Governmental Lender Note shall be paid in such order of priority as may be prescribed by Written Direction of the Funding Lender in its sole and absolute discretion; and Fourth: The payment of the remainder, if any, to the Borrower or to whosoever may be lawfully entitled to receive the same or as a court of competent jurisdiction may direct. If and to the extent this Section 9.4 conflicts with the provisions of the Servicing Agreement, the provisions of the Servicing Agreement shall control. Capitalized terms used in this Section 9.4 but not otherwise defined in this Funding Loan Agreement shall have the meanings given such terms in the Servicing Agreement. Section 9.5. Remedies Vested in Funding Lender. All rights of action and claims under this Funding Loan Agreement or the Governmental Lender Note may be prosecuted and enforced by the Funding Lender without the possession of the Governmental Lender Note or the production thereof in any proceeding relating thereto. Section 9.6. Restoration of Positions. If Funding Lender shall have instituted any proceeding to enforce any right or remedy under this Funding Loan Agreement and such proceeding shall have been discontinued or abandoned for any reason or shall have been determined adversely to the Funding Lender, then and in every such case the Governmental Lender and the Funding Lender shall, subject to any determination in such proceeding, be restored to their former positions hereunder, and thereafter all rights and remedies of the Governmental Lender and the Funding Lender shall continue as though no such proceeding had been instituted. 29 4856-5616-9347.5 Section 9.7. Rights and Remedies Cumulative. No right or remedy herein conferred upon or reserved to the Funding Lender is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertio n or employment of any other appropriate right or remedy. Section 9.8. Delay or Omission Not Waiver. No delay or omission of the Funding Lender to exercise any right or remedy accruing upon an Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Funding Lender may be exercised from time to time, and as often as may be deemed expedient, by Funding Lender. No waiver of any default or Event of Default pursuant to Section 9.9 hereof shall extend to or shall affect any subsequent default or Event of Default hereunder or shall impair any rights or remedies consequent thereon. Section 9.9. Waiver of Past Defaults. Before any judgment or decree for payment of money due has been obtained by the Funding Lender against the Borrower, the Funding Lender may, subject to Section 9.6 hereof, by Written Notice to the Fiscal Agent, the Governmental Lender and the Borrower, waive any past default hereunder or under the Borrower Loan Agreement and its consequences except for default in obligations due the Governmental Lender pursuant to or under the Unassigned Rights. Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Funding Loan Agreement and the Borrower Loan Agreement; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon. Section 9.10. Remedies Under Borrower Loan Agreement or Permanent Phase Borrower Note. As set forth in this Section 9.10 but subject to Section 9.9 hereof, the Funding Lender shall have the right, in its own name or on behalf of the Governmental Lender, to declare any default and exercise any remedies under the Borrower Loan Agreement or the Permanent Phase Borrower Note, whether or not the Governmental Lender Note have been accelerated or declared due and payable by reason of an Event of Default. Section 9.11. Waiver of Appraisement and Other Laws. (a) To the extent permitted by law, the Governmental Lender will not at any time insist upon, plead, claim or take the benefit or advantage of, any appraisement, valuation, stay, extension or redemption law now or hereafter in force, in order to prevent or hinder the enforcement of this Funding Loan Agreement; and the Governmental Lender, for itself and all who may claim under it, so far as it or they now or hereafter may lawfully do so, hereby waives the benefit of all such laws. The Governmental Lender, for itself and all who may claim under it, waives, to the extent that it may lawfully do so, all right to have the property in the Security marshaled upon any enforcement hereof. (b) If any law now in effect prohibiting the waiver referred to in Section 9.11(a) shall hereafter be repealed or cease to be in force, such law shall not thereafter be deemed to constitute any part of the contract herein contained or to preclude the application of this Section 9.11. Section 9.12. Suits to Protect the Security. The Funding Lender shall have power to institute and to maintain such proceedings as it may deem expedient to prevent any impairment of the Security by any acts that may be unlawful or in violation of this Funding Loan Agreement and to protect its interests in the Security and in the rents, issues, profits, revenues and other income arising therefrom, including power to institute and maintain proceedings to restrain the enforcement of or compliance with any Governmental enactment, rule or order that may be unconstitutional or otherwise invalid, if the enforcement of or 30 4856-5616-9347.5 compliance with such enactment, rule or order would impair the security hereunder or be prejudicial to the interests of the Funding Lender. Section 9.13. Remedies Subject to Applicable Law. All rights, remedies and powers provided by this Article may be exercised only to the extent that the exercise thereof does not violate any applicable provision of law in the premises, and all the provisions of this Article are intended to be subject to all applicable mandatory provisions of law which may be controlling in the premises and to be limited to the extent necessary so that they will not render this Funding Loan Agreement invalid, unenforceable or not entitled to be recorded, registered or filed under the provisions of any applicable law. Section 9.14. Assumption of Obligations. In the event that the Funding Lender or its assignee or designee shall become the legal or beneficial owner of the Project by foreclosure or deed in lieu of foreclosure, such party shall succeed to the rights and the obligations of the Borrower under the Borrower Loan Agreement, the Permanent Phase Borrower Note, the Regulatory Agreement and any other Funding Loan Documents to which the Borrower is a party. Such assumption shall be effective from and after the effective date of such acquisition and shall be made with the benefit of the limitations of liability set forth therein and without any liability for the prior acts of the Borrower. It is the intention of the parties hereto that upon the occurrence and continuance of an Event of Default hereunder, rights and remedies may be pursued pursuant to the terms of the Funding Loan Documents. ARTICLE X AMENDMENT; AMENDMENT OF FUNDING LOAN AGREEMENT AND OTHER DOCUMENTS Section 10.1. Amendment of Funding Loan Agreement. Any of the terms of this Funding Loan Agreement and the Governmental Lender Note may be amended or waived only by an instrument signed by the Funding Lender, the Fiscal Agent and the Governmental Lender; provided, however, no such amendment which materially affects the rights, duties, obligations or other interests of the Borrower shall be made without the consent of the Borrower, and, provided further, that if the Borrower is in default under any Funding Loan Document, no Borrower consent shall be required unless such amendment has a material adverse effect on the rights, duties, obligations or other interests of the Borrower. All of the terms of this Funding Loan Agreement shall be binding upon the successors and assigns of and all persons claiming under or through the Governmental Lender, the Fiscal Agent or any such successor or assign, and shall inure to the benefit of and be enforceable by the successors and assigns of the Funding Lender and the Fiscal Agent. Section 10.2. Amendments Require Funding Lender Consent. Neither the Governmental Lender nor the Fiscal Agent shall consent to any amendment, change or modification of the Borrower Loan Agreement or any other Permanent Phase Borrower Loan Document or Funding Loan Document without the prior Written Consent of the Funding Lender. Section 10.3. Consents and Opinions. No amendment to this Funding Loan Agreement or any other Funding Loan Document entered into under this Article X or any amendment, change or modification otherwise permitted under this Article X shall become effective unless and until (i) t he Funding Lender shall have approved the same in writing in its sole discretion and (ii) the Funding Lender, the Governmental Lender and the Fiscal Agent shall have received, at the expense of the Borrower, a Tax Counsel No Adverse Effect Opinion and an Opinion of Counsel to the effect that any such proposed amendment is authorized and complies with the provisions of this Funding Loan Agreement and is a legal, valid and binding 31 4856-5616-9347.5 obligation of the parties thereto, subject to normal exceptions relating to bankruptcy, insolvency and equitable principles limitations. ARTICLE XI THE FISCAL AGENT Section 11.1. Appointment of Fiscal Agent; Acceptance. The Governmental Lender hereby appoints The Bank of New York Mellon Trust Company, N.A. as Fiscal Agent hereunder. The Fiscal Agent shall signify its acceptance of the duties and obligations imposed upon it by this Funding Loan Agreement by executing this Funding Loan Agreement. Section 11.2. Certain Duties and Responsibilities of Fiscal Agent. (a) The Fiscal Agent undertakes to perform such duties and only such duties as are specifically set forth in this Funding Loan Agreement, and no implied covenants or obligations shall be read into this Funding Loan Agreement against the Fiscal Agent. (b) If an event of default exists hereunder or under any Permanent Phase Borrower Loan Document of which Fiscal Agent has been provided Written Notice, the Fiscal Agent shall exercise such of the rights and powers vested in it by this Funding Loan Agreement, and subject to Section 11.2(c)(iii) hereof, use the same degree of care and skill in its exercise, as a prudent corporate trust officer would exercise or use under the circumstances in the conduct of corporate trust business. The Fiscal Agent, prior to the occurrence of an event of default and after the curing of all events of default which may have occurred, undertakes to perform such duties and only such duties as are specifically set forth in this Funding Loan Agreement, and no implied covenants or obligations should be read into this Funding Loan Agreement against the Fiscal Agent. (i) The Fiscal Agent may consult with counsel, and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by the Fiscal Agent hereunder in good faith and in reliance thereon. (ii) The Fiscal Agent shall not be accountable for the use or application by the obligor of the Governmental Lender Note or the proceeds thereof or for the use or application of any money paid over by the Fiscal Agent in accordance with the provisions of this Funding Loan Agreement or for the use and application of money received by any paying agent. (iii) The Fiscal Agent shall have no liability for any loss, expense or liability incurred as a result of such investment made in accordance with directions of the Borrower or the Governmental Lender, as applicable. (c) No provision of this Funding Loan Agreement shall be construed to relieve the Fiscal Agent from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, in each case, as finally adjudicated by a court of law, except that: (i) This subsection shall not be construed to limit the effect of subsection (a) of this Section; (i) The Fiscal Agent shall not be liable for any error of judgment made in good faith, unless it shall be proved that the Fiscal Agent was negligent in ascertaining the pertinent facts; 32 4856-5616-9347.5 (ii) The Fiscal Agent shall not be liable with respect to any action taken or omitted to be taken by it in accordance with the direction of the Funding Lender relating to the time, method and place of conducting any proceeding for any remedy available to the Fiscal Agent, or exercising any trust or power conferred upon the Fiscal Agent under this Funding Loan Agreement; and (iii) No provision of this Funding Loan Agreement shall require the Fiscal Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not assured to it in its sole discretion. Subject to its rights to indemnification pursuant to Section 11.4 hereof, the Fiscal Agent is directed to enter into the Borrower Loan Documents to which it is a party and other related documents, solely in its capacity as Fiscal Agent. (d) Whether or not therein expressly so provided, every provision of this Funding Loan Agreement and the other Funding Loan Documents relating to the conduct or affecting the liability of or affording protection to the Fiscal Agent shall be subject to the provisions of this Section. (e) The Fiscal Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Fiscal Agent and conforming to the requirements of this Funding Loan Agreement; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Fiscal Agent, the Fiscal Agent shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Funding Loan Agreement. (f) The permissive rights of the Fiscal Agent to do things enumerat ed in this Funding Loan Agreement shall not be construed as a duty. (g) The rights of the Fiscal Agent and limitations of liability enumerated herein and in Section 11.4 shall extend to actions taken or omitted in its role as assignee of the Governmental Lender under the Borrower Loan Agreement and the other Funding Loan Documents. (h) In connection with the issuance of the Governmental Lender Note, certain moneys may be deposited with the Fiscal Agent before the Delivery Date pursuant to one or more letters of instruction from the provider or providers of such moneys. Such moneys will be held uninvested by the Fiscal Agent subject to the terms and conditions of this Funding Loan Agreement in addition to terms provided in such letter(s) of instruction. For such purpose the standards of care, provisions regarding responsibilities and indemnification and other sections relating to the Fiscal Agent contained in this Funding Loan Agreement and the Borrower Loan Agreement (the “Effective Provisions”) shall be effective as of the first day of receipt by the Fiscal Agent of such moneys. The Effective Provisions shall be deemed incorporated into such letter(s) of instructions. Section 11.3. Notice of Defaults. Upon the occurrence of any default hereunder or under any Permanent Phase Borrower Loan Document and provided that a Responsible Officer of the Fiscal Agent is aware of or has received Written Notice of the existence of such default, promptly, and in any event within 15 days, the Fiscal Agent shall transmit to the Governmental Lender, the Borrower, the Equity Investor, the Servicer, if any, and the Funding Lender, in the manner and at the addresses for notices set forth in Section 12.1 hereof, notice of such default hereunder known to the Fiscal Agent pursuant to Section 11.4(g) hereof, unless such default shall have been cured or waived. 33 4856-5616-9347.5 Section 11.4. Certain Rights of Fiscal Agent. Except as otherwise provided in Section 11.1 hereof: (a) The Fiscal Agent may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, note, debenture, coupon or other paper or document believed by it to be genuine and to have been signed or presented by the purported proper party or parties; (b) Any request or direction of the Governmental Lender mentioned herein shall be sufficiently evidenced by a certificate or order executed by an Authorized Governmental Lender Representative; (c) Whenever in the administration of this Funding Loan Agreement or any Permanent Phase Borrower Loan Document the Fiscal Agent shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Fiscal Agent (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon a Written Certificate of the Governmental Lender, the Funding Lender, the Servicer or the Borrower, as appropriate; (d) The Fiscal Agent shall be under no obligation to exercise any of the rights or powers vested in it by this Funding Loan Agreement or any Permanent Phase Borrower Loan Document at the request or direction of the Funding Lender, pursuant to this Funding Loan Agreement, unless the Funding Lender shall have offered to the Fiscal Agent in writing security or indemnity reasonably satisfactory to the Fiscal Agent against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction, except costs, expenses and liabilities which are adjudicated to have resulted from its own negligence or willful misconduct, provided, that nothing contained in this subparagraph (d) shall be construed to require such security or indemnity for the performance by the Fiscal Agent of its obligations under Section 8.6 hereof; (e) The Fiscal Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, note, debenture, coupon or other paper or document but the Fiscal Agent, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Fiscal Agent shall determine to make such further inquiry or investigation, it shall be entitled to examine the books and records of the Governmental Lender, if any, and of the Borrower, in either case personally or by agent or attorney after reasonable notice and during normal business hours; (f) The Fiscal Agent may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and pay reasonable compensation thereto and the Fiscal Agent shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder. The Fiscal Agent may act upon the advice of counsel of its choice concerning all matters hereof and the Fiscal Agent shall not be responsible for any loss or damage resulting from any action or inaction taken in good faith reliance upon said advice; (g) Notwithstanding anything contained herein or in the Security Instrument to the contrary, upon the occurrence and continuance of an Event of Default, before taking any foreclosure action or any action which may subject the Fiscal Agent to liability under any environmental law, statute, regulation or similar requirement relating to the environment, the Fiscal Agent may require that a satisfactory indemnity bond, indemnity or environmental impairment insurance be furnished for the payment or reimbursement of all expenses to which it may be put and to protect it against all liability resulting from any claims, judgments, damages, losses, penalties, fines, liabilities (including strict liability) and expenses which may result from such foreclosure or other action. The Fiscal Agent shall not be required to take any action to foreclose or otherwise enforce the Security Instrument unless indemnified to its satisfaction and will not be 34 4856-5616-9347.5 required to foreclose if doing so will subject it to environmental liability or will require the approval of a governmental regulator that cannot be obtained; and (h) The Fiscal Agent shall not be required to take notice or be deemed to have notice of any default hereunder or under any Permanent Phase Borrower Loan Document except for failure by the Borrower to make payments of principal, interest, premium, if any, or the Governmental Lender Fee when due, unless a Responsible Officer of the Fiscal Agent shall be specifically notified by a Written Direction of such default by the Governmental Lender, the Servicer or the Funding Lender, and all notices or other instruments required by this Funding Loan Agreement or under any Permanent Phase Borrower Loan Document to be delivered to the Fiscal Agent, must, in order to be effective, be delivered in writing to a Responsible Officer of the Fiscal Agent at the Office of the Fiscal Agent, and in the absence of such Written Notice so delivered the Fiscal Agent may conclusively assume there is no default as aforesaid. Section 11.5. Not Responsible for Recitals. The recitals contained herein and in the Governmental Lender Note shall be taken as the statements of the Governmental Lender, and the Fiscal Agent assumes no responsibility for their correctness. The Fiscal Agent makes no representations as to the value or condition of the Pledged Revenues, the Security or any part thereof, or as to the title of the Governmental Lender thereto or as to the security afforded thereby or hereby, or as to the validity or sufficiency of this Funding Loan Agreement or of the Governmental Lender Note. The Fiscal Agent shall have no responsibility or liability with respect to any information, statement or recital in any offering memorandum or other disclosure material prepared or distributed with respect to the funding of the Funding Loan. The Fiscal Agent shall not be required to monitor the financial condition of the Borrower or the physical condition of the Project. Unless otherwise expressly provided, the Fiscal Agent shall be under no obligation to analyze, review or make any credit decisions with respect to any financial statements, reports, notices, certificates or documents received hereunder but shall hold such financial statements reports, notices, certificates and documents solely for the benefit of, and review by, the Funding Lender and such other parties to whom the Fiscal Agent may provide such information pursuant to this Funding Loan Agreement The Fiscal Agent shall not be deemed to have notice of any information contained therein or event of default which may be disclosed therein in any manner. The Fiscal Agent makes no representations as to and shall have no responsibility for the sufficiency of the insurance required under any of the Borrower Loan Documents. Section 11.6. May Hold Governmental Lender Note. The Fiscal Agent in its individual or any other capacity may become the owner or pledgee of the Governmental Lender Note and may otherwise deal with the Governmental Lender, the Funding Lender and the Borrower with the same rights it would have if it were not Fiscal Agent. Section 11.7. Moneys Held in Trust. Moneys held by the Fiscal Agent in trust hereunder need not be segregated from other funds except to the extent required by law. The Fiscal Agent shall be under no liability for interest on any moneys received by it hereunder except as otherwise provided herein. Section 11.8. Compensation and Reimbursement. Under the Borrower Loan Agreement, the Borrower has agreed to, except as otherwise expressly provided herein, reimburse the Fiscal Agent as provided in this Funding Loan Agreement or the Borrower Loan Agreement, upon its request for all reasonable expenses, disbursements and advances incurred or made by the Fiscal Agent in accordance with any provision of this Funding Loan Agreement (including the reasonable fees, expenses and disbursements 35 4856-5616-9347.5 of its agents and counsel), except any such expense, disbursement or advance as may be attributable to the Fiscal Agent’s negligence or willful misconduct, both as finally adjudicated by a court of law. When the Fiscal Agent incurs expenses or renders service in connection with any bankruptcy or insolvency proceeding, such expenses (including the fees and expenses of its counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally. (a) The Governmental Lender has no obligation to pay the Fiscal Agent for services rendered. (b) As security for the performance of the obligations of the Borrower under this Section and for the payment of such compensation, expenses, reimbursements and indemnity, the Fiscal Agent shall have the right to use and apply any moneys held by it as Pledged Revenues. (c) The Fiscal Agent’s rights to compensation and reimbursement shall survive its resignation or removal, the payment of the Funding Loan or the Permanent Phase Borrower Loan or the release of this Funding Loan Agreement. Section 11.9. Fiscal Agent Required; Eligibility. Any successor Fiscal Agent shall at all times be a trust company, a state banking corporation or a national banking association with the authority to accept trusts in the State approved in writing by the Governmental Lender and either (a) have a combined capital and surplus of at least $50,000,000 as set forth in its most recent published annual report of condition, (b) be a wholly owned subsidiary of a bank holding company, or a wholly owned subsidiary of a company that is a wholly owned subsidiary of a bank holding company, having a combined capital surplus of at least $50,000,000 as set forth in its most recent published annual report of condition, have at least $500,000,000 of trust assets under management and have a combined capital surplus of at least $2,000,000 as set forth in its most recent published annual report of condition, or (c) be otherwise acceptable to the Funding Lender in its sole and absolute discretion. Section 11.10. Resignation and Removal; Appointment of Successor. (a) No resignation or removal of the Fiscal Agent hereunder and no appointment of a successor Fiscal Agent pursuant to this Article shall become effective until the written acceptance by the successor Fiscal Agent of such appointment. (b) The Fiscal Agent may resign at any time by giving 60 days’ Written Notice thereof to the Governmental Lender, the Borrower, the Servicer, if any, and the Funding Lender. If an instrument of acceptance by a successor Fiscal Agent shall not have been delivered to the Fiscal Agent within 30 days after the giving of such notice of resignation, the resigning Fiscal Agent may petition any court of competent jurisdiction for the appointment of a successor Fiscal Agent. (c) The Fiscal Agent may be removed at any time with 30 days’ notice by (i) the Governmental Lender, with the Written Consent of the Funding Lender, (ii) the Borrower (unless the Borrower is in default under any of the Borrower Loan Documents), with the Written Consent of the Funding Lender and the Governmental Lender, or (iii) the Funding Lender by Written Notice delivered to the Fiscal Agent, the Governmental Lender and the Borrower. (d) If the Fiscal Agent shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the Office of the Fiscal Agent for any cause, the Governmental Lender shall promptly appoint a successor Fiscal Agent, with the consent of the Funding Lender. In case all or substantially all of the Pledged Revenues and Security shall be in the possession of a receiver or trustee lawfully appointed, such 36 4856-5616-9347.5 receiver or trustee may similarly appoint a successor to fill such vacancy until a new Fiscal Agent shall be so appointed by the Governmental Lender. If, within 60 days after such resignation, removal or incapability or the occurrence of such vacancy, the Governmental Lender has failed to so appoint a successor Fiscal Agent, then a successor Fiscal Agent shall be appointed by the Funding Lender (from any institution acceptable to the Governmental Lender to serve as a fiscal agent or trustee) with Written Notice thereof delivered to the Governmental Lender, the Borrower, the Servicer, if any, and the retiring Fiscal Agent, and the successor Fiscal Agent so appointed shall, forthwith upon its acceptance of such appointment, become the successor Fiscal Agent and supersede the successor Fiscal Agent appointed by such receiver or Fiscal Agent. If no successor Fiscal Agent shall have been appointed by the Governmental Lender or the Funding Lender and accepted appointment in the manner hereinafter provided, the Fiscal Agent may petition any court of competent jurisdiction for the appointment of a successor Fiscal Agent. (e) The retiring Fiscal Agent shall cause Written Notice of each resignation and each removal of the Fiscal Agent and each appointment of a successor Fiscal Agent to be provided to the Funding Lender. Each notice shall include the name of the successor Fiscal Agent and the address of the office of the successor Fiscal Agent. Section 11.11. Acceptance of Appointment by Successor. (a) Every successor Fiscal Agent appointed hereunder shall execute, acknowledge and deliver to the Governmental Lender and to the retiring Fiscal Agent an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Fiscal Agent shall become effective and such successor Fiscal Agent, without any further act, deed or conveyance, shall become vested with all the estates, properties, rights, powers, trusts and duties of the retiring Fiscal Agent; notwithstanding the foregoing, on request of the Governmental Lender or the successor Fiscal Agent, such retiring Fiscal Agent shall, upon payment of its charges, execute and deliver an instrument conveying and transferring to such successor Fiscal Agent upon the trusts herein expressed all the estates, properties, rights, powers and trusts of the retiring Fiscal Agent, and shall duly assign, transfer and deliver to such successor Fiscal Agent all property and money held by such retiring Fiscal Agent hereunder. Upon request of any such successor Fiscal Agent, the Governmental Lender shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Fiscal Agent all such estates, properties, rights, powers and trusts. (b) No successor Fiscal Agent shall accept its appointment unless at the time of such acceptance such successor Fiscal Agent shall be qualified and eligible under this Article, to the extent operative. Section 11.12. Merger, Conversion, Consolidation or Succession to Business. Any corporation or association into which the Fiscal Agent may be merged or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Fiscal Agent shall be a party, or any corporation or association succeeding to all or substantially all of the corporate trust business of the Fiscal Agent, shall be the successor of the Fiscal Agent hereunder, provided such corporation shall be otherwise qualified and eligible under this Article, to the extent operative, without the execution or filing of any paper or any further act on the part of any of the parties hereto. Notwithstanding the foregoing, any such successor Fiscal Agent shall cause Written Notice of such succession to be delivered to the Funding Lender within 30 days of such succession. Section 11.13. Appointment of Co-Fiscal Agent. It is the purpose of this Funding Loan Agreement that there shall be no violation of any laws of any jurisdiction (including particularly the laws of the State) denying or restricting the right of banking corporations or associations to transact business as Fiscal Agent in such jurisdiction. It is recognized that in case of litigation under this Funding Loan Agreement, the Borrower Loan Agreement, any other Permanent Phase Borrower Loan Document or the 37 4856-5616-9347.5 Regulatory Agreement, and in particular in case of the enforcement of any of them on default, or in case the Fiscal Agent deems that by reason of any present or future law of any jurisdiction it may not exercise any of the powers, rights or remedies herein granted to the Fiscal Agent or hold title to the properties, in trust, as herein provided, or take any other action which may be desirable or necessary in connection therewith, it may be necessary that the Fiscal Agent appoint an additional individual or institution as a separate or co-fiscal agent. The following provisions of this Section are adopted to these ends. The Fiscal Agent is hereby authorized to appoint an additional individual or institution as a separate or co-fiscal agent hereunder, upon Written Notice to the Governmental Lender, the Funding Lender and the Borrower, and with the consent of the Governmental Lender and the Funding Lender, but without the necessity of further authorization or consent, in which event each and every remedy, power, right, claim, demand, cause of action, immunity, estate, title, interest and lien expressed or intended by this Funding Loan Agreement, any Permanent Phase Borrower Loan Document, the Regulatory Agreement or the Borrower Loan Agreement to be exercised by or vested in or conveyed to the Fiscal Agent with respect thereto shall be exercisable by and vest in such separate or co-fiscal agent but only to the extent necessary to exercise such powers, rights and remedies, and every covenant and obligation necessary to the exercise thereof by such separate or co-fiscal agent shall run to and be enforceable by either of them. Should any instrument in writing from the Governmental Lender be required by the separate fiscal agent or co-fiscal agent appointed by the Fiscal Agent for more fully and certainly vesting in and confirming to him or it such properties, rights, powers, trusts, duties and obligations, any and all such instruments in writing shall, on request of the Fiscal Agent, be executed, acknowledged and delivered by the Governmental Lender. In case any separate fiscal agent or co Fiscal Agent, or a successor to either, shall die, be come incapable of acting, resign or be removed, all the estates, properties, rights, powers, trusts, duties and obligations of such separate fiscal agent or co-fiscal agent, so far as permitted by law, shall vest in and be exercised by the Fiscal Agent until the appointment of a successor to such separate fiscal agent or co-fiscal agent. Section 11.14. Loan Servicing. The Governmental Lender and the Fiscal Agent acknowledge that the Funding Lender shall have the right to appoint a Servicer to service and administer the F unding Loan and Permanent Phase Borrower Loan, as set forth in a Servicing Agreement. The Funding Lender shall provide Written Notice to the Fiscal Agent of the appointment, termination or replacement of any Servicer. The Governmental Lender and the Fiscal Agent shall not be responsible for monitoring the performance of any Servicer or for any acts or omissions of such Servicer. The Funding Lender may, in its sole discretion, terminate or replace the Servicer. Section 11.15. No Recourse Against Officers or Employees of Fiscal Agent. No recourse with respect to any claim related to any obligation, duty or agreement contained in this Funding Loan Agreement or any other Funding Loan Document shall be had against any officer or employee, as such, of the Fiscal Agent, it being expressly understood that the obligations, duties and agreements of the Fiscal Agent contained in this Funding Loan Agreement and the other Funding Loan Documents are solely corporate in nature. Section 11.16. USA Patriot Act Requirements of the Fiscal Agent. To help the government of the United States of America fight the funding of terrorism and money laundering activities, federal law requires all financial institutions to obtain, verify, and record information that identifies each person who opens an account. For a non-individual person such as a business entity, a charity, a trust, or other legal entity, the Fiscal Agent may request documentation to verify such person’s formation and existence as a legal entity and the identity of the owners or controlling persons thereof. The Fiscal Agent may also request financial statements, licenses, identification and authorization documents from individuals claiming authority to represent such person or other relevant documentation. 38 4856-5616-9347.5 Section 11.17. Filing of Financial Statements. The Fiscal Agent shall cause to be filed a continuation statement with respect to each Uniform Commercial Code financing statement relating to the Funding Loan on which it is listed as a secured party, and which was filed at the time of the issuance of the Funding Loan, in such manner and in such places as the initial filings (copies of which shall be provided to the Fiscal Agent by the Governmental Lender) were made. The Borrower shall be responsible for the reasonable costs incurred by the Fiscal Agent in the preparation and filing of all such continuation statements hereunder. Notwithstanding anything to the contrary contained herein, the Fiscal Agent shall not be responsible for any initial filings of any financing statements or the information contained ther ein (including the exhibits thereto), the perfection of any such security interests, or the accuracy or sufficiency of any description of collateral in such initial filings or for filing any modifications or amendments to the initial filings required by any amendments to Article 9 of the Uniform Commercial Code, and unless the Fiscal Agent shall have been notified by the Funding Lender that any such initial filing or description of collateral was or has become defective, the Fiscal Agent shall be fully prot ected in relying on such initial filing and descriptions in filing any continuation statements or modifications thereto pursuant to this Section 11.17 and in filing any continuation statements in the same filing offices as the initial filings were made. ARTICLE XII MISCELLANEOUS Section 12.1. Notices. All notices, demands, requests and other communications required or permitted to be given by any provision of this Funding Loan Agreement shall be in writing and sent by first class, regular, registered or certified mail, commercial delivery service, overnight courier, e-mail, telecopier or facsimile transmission, air or other courier, or hand delivery to the party to be notified addressed as follows: If to the Borrower: Vista Breeze, Ltd. c/o Atlantic Pacific Communities, LLC 161 NW 6th Street, Suite 1020 Miami, Florida 33136 Attention: Kenneth Naylor Telephone: (305) 357-4700 Email: knaylor@apcompanies.com with a copy to: Klein Hornig LLP 1325 G. Street NW, Suite 770 Washington, DC 20005 Attention: Chris Hornig Email: chornig@kleinhornig.com Tel: (202) 926-3402 Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A. (which copy shall not constitute notice to Borrower) 150 W. Flagler Street Miami, Florida 33130 Attention: Brian McDonough, Esq. Email: bmcdonough@stearnsweaver.com Telephone: (305) 789-3350 Fox Rothschild LLP BNY Mellon Center 500 Grant Street, Suite 2500 39 4856-5616-9347.5 Pittsburg, Pennsylvania 15219 Attention: Alec Stone Email: ajstone@foxrothschild.com Telephone: (412) 391-2523 with a copy to: Bank of America, N.A. MA5-100-04-11 100 Federal Street Boston, MA 02110 Attention: Tax Credit Asset Management (Vista Breeze) Email: LIHTCreporting@bofa.com with a copy to: Holland & Knight LLP 10 St. James Avenue Boston, MA 02116 Attention: Sara C. Heskett, Esq. Email: sara.heskett@hklaw.com Telephone: (503) 243-5860 If to the Governmental Lender: Housing Finance Authority of Miami-Dade County, Florida 7855 NW 12th Street, Suite 202 Doral, Florida 33126 Attention: Cheree Gulley, Executive Director Facsimile: (305) 392-2722 Email: cgulley@hfamiami.com and a copy to: Miami-Dade County Attorney’s Office. 111 N.W. 12th Street Suite 2810 Miami, Florida 33128 Attention: David S. Hope, Esq. Email: dhope@miamidade.gov If to Funding Lender: with a copy to: Citibank, N.A. 388 Greenwich Street, Trading 4th Floor New York, New York 10013 Attention: Transaction and Asset Management Group Re: Vista Breeze Deal ID# 60001596 Facsimile: (212) 723-8209 Citibank, N.A. 325 East Hillcrest Drive, Suite 160 Thousand Oaks, California 91360 Attention: Operations Manager/Asset Manager Re: Vista Breeze Deal ID# 60001596 Facsimile: (805) 557-0924 and 40 4856-5616-9347.5 with a copy to: Citibank, N.A c/o Berkadia Commercial Mortgage LLC 323 Norristown Road, Suite 300 Ambler, Pennsylvania 19002 Attention: Client Relations Manager Re: Vista Breeze Deal ID# 60001596 Facsimile: (215) 328-0305 And a copy of any notices of default sent to: Citibank, N.A. 388 Greenwich Street, 17th Floor New York, New York 10013 Attention: General Counsel’s Office Re: Vista Breeze Deal ID# 60001596 Facsimile: (646) 291-5754 If to Fiscal Agent: The Bank of New York Mellon Trust Company, N.A. 4655 Salisbury Road, Suite 300 Jacksonville, Florida 33256 Attention: Corporate Trust Department Email: heidi.bowers@bnymellon.com Telephone: (904) 645-1983 Any such notice, demand, request or communication shall be deemed to have been given and received for all purposes under this Funding Loan Agreement: (i) three Business Days after the same is deposited in any official depository or receptacle of the United States Postal Service first class, or, if applicable, certified mail, return receipt requested, postage prepaid; (ii) on the date of transmission when delivered by telecopier or facsimile transmission, e-mail or other telecommunication device, provided any telecopy or other electronic transmission received by any party after 4:00 p.m., local time, as evidenced by the time shown on such transmission, shall be deemed to have been received the following Business Day; (iii) on the next Business Day after the same is deposited with a nationally recognized overnight delivery service that guarantees overnight delivery; and (iv) on the date of actual delivery to such party by any other means; provided, however, if the day such notice, demand, request or communication shall be deemed to have been given and received as aforesaid is not a Business Day, such notice, demand, request or communication shall be deemed to have been given and received on the next Business Day. Any facsimile signature by a Person on a document, notice, demand, request or communication required or permitted by this Funding Loan Agreement shall constitute a legal, valid and binding execution thereof by such Person. Any party to this Funding Loan Agreement may change such party’s address for the purpose of notice, demands, requests and communications required or permitted under this Funding Loan Agreement by providing written notice of such change of address to all of the parties by written notice as provided herein. Section 12.2. Term of Funding Loan Agreement. This Funding Loan Agreement shall be in full force and effect until all payment obligations of the Governmental Lender hereunder have been paid in full and the Funding Loan has been retired or the payment thereof has been provided for; except that on and after payment in full of the Governmental Lender Note, this Funding Loan Agreement shall be terminated, without further action by the parties hereto. 41 4856-5616-9347.5 Section 12.3. Successors and Assigns. All covenants and agreements in this Funding Loan Agreement by the Governmental Lender shall bind its successors and assigns, whether so expressed or not. Section 12.4. Legal Holidays. In any case in which the date of payment of any amount due hereunder or the date on which any other act is to be performed pursuant to this Funding Loan Agreement shall be a day that is not a Business Day, then payment of such amount or such act need not be made on such date but may be made on the next succeeding Business Day, and such later payment or such act shall have the same force and effect as if made on the date of payment or the date fixed for prepayment or the date fixed for such act, and no additional interest shall accrue for the period after such date and prior to the date of payment. Section 12.5. Governing Law. This Funding Loan Agreement shall be governed by and shall be enforceable in accordance with the laws of the State. Section 12.6. Invalidity, Illegality or Unenforceability of Provisions. If any provision of this Funding Loan Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining portions shall not in any way be affected or impaired. In case any covenant, stipulation, obligation or agreement contained in the Governmental Lender Note or in this Funding Loan Agreement shall for any reason be held to be usurious or in violation of law, then such covenant, stipulation, obligation or agreement shall be deemed to be the covenant, stipulation, obligation or agreement of the Governmental Lender or the Funding Lender only to the full extent permitted by law. Section 12.7. Execution in Several Counterparts. This Funding Loan Agreement may be contemporaneously executed in several counterparts, all of which shall constitute one and the same instrument and each of which shall be, and shall be deemed to be, an original. Section 12.8. Nonrecourse Obligation of the Borrower. Except as otherwise provided in the Borrower Loan Agreement, any obligations of the Borrower under this Funding Loan Agreement pursuant to the provisions of the Borrower Loan Agreement are without recourse to the Borrower or to the Borrower’s partners or members, as the case may be, and the provisions of Section 11.1 of the Borrower Loan Agreement are by this reference incorporated herein. Section 12.9. Waiver of Trial by Jury. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, EACH OF THE PARTIES HERETO (A) COVENANTS AND AGREES NOT TO ELECT A TRIAL BY JURY WITH RESPECT TO ANY ISSUE ARISING OUT OF THIS FUNDING LOAN AGREEMENT OR THE RELATIONSHIP BETWEEN THE PARTIES THAT IS TRIABLE OF RIGHT BY A JURY AND (B) WAIVES ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO SUCH ISSUE TO THE EXTENT THAT ANY SUCH RIGHT EXISTS NOW OR IN THE FUTURE. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS SEPARATELY GIVEN BY EACH PARTY, KNOWINGLY AND VOLUNTARILY WITH THE BENEFIT OF COMPETENT LEGAL COUNSEL. Section 12.10. Electronic Transactions. (a) The transactions described in this Funding Loan Agreement may be conducted and related documents and may be stored by electronic means. Copies, telecopies, facsimiles, electronic files and other reproductions of original executed documents shall be deemed to be authentic and valid counterparts of such original documents for all purposes, including the filing of any claim, action or suit in the appropriate court of law. Notwithstanding the foregoing, original executed versions of each of the Funding Loan Agreement and the Borrower Loan Agreement shall be delivered to the Funding Lender in connection with the closing of the transaction described herein. 42 4856-5616-9347.5 (b) The Fiscal Agent shall have the right to accept and act upon instructions including funds transfer instructions (“Instructions”) given pursuant to this Funding Loan Agreement and related financing documents and delivered using Electronic Means; provided, however, that Borrower and/or the Governmental Lender, as applicable, shall provide to the Fiscal Agent an incumbency certificate listing officers with the authority to provide such Instructions (“Authorized Officers”) and containing specimen signatures of such Authorized Officers, which incumbency certificate shall be amended by Governmental Lender and/or the Borrower, as applicable, whenever a person is to be added or deleted from the listing. For purposes of this subsection (b), “Electronic Means” shall mean the following communications methods: e-mail, facsimile transmission, secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys issued by the Fiscal Agent, or another method or system specified by the Fiscal Agent as available for use in connection with its services hereunder. If the Governmental Lender and/or the Borrower, as applicable, elects to give the Fiscal Agent Instructions using Electronic Means and the Fiscal Agent in its discretion elects to act upon such Instructions, the Fiscal Agent’s understanding of such Instructions shall be deemed controlling. The Governmental Lender and the Borrower understand and agree that the Fiscal Agent cannot determine the identity of the actual sender of such Instructions and that the Fiscal Agent shall conclusively presume that directions that purport to have been sent by an Authorized Officer listed on the incumbency certificate provided to the Fiscal Agent have been sent by such Authorized Officer. The Governmental Lender and the Borrower shall be responsible for ensuring that only Authorized Officers transmit such Instructions to the Fiscal Agent and that the Governmental Lender, the Borrower and all Authorized Officers are solely responsible to safeguard the use and confidentiality of applicable user and authorization codes, passwords and/or authentication keys upon receipt by the Governmental Lender and/or the Borrower, as applicable. The Fiscal Agent shall not be liable for any losses, costs or expenses arising directly or indirectly from the Fiscal Agent’s reliance upon and compliance with such Instructions notwithstanding such directions conflict or are inconsistent with a subsequent written instruction. The Governmental Lender and the Borrower agree: (i) to assume all risks arising out of the use of Electronic Means to submit Instructions to the Fiscal Agent, including without limitation the risk of the Fiscal Agent acting on unauthorized Instructions, and the risk of interception and misuse by third parties; (ii) that it is fully informed of the protections and risks associated with the various methods of transmitting Instructions to the Fiscal Agent and that there may be more secure methods of transmitting Instructions than the method(s) selected by the Governmental Lender and/or the Borrower, as applicable; (iii) that the security procedures (if any) to be followed in connection with its transmission of Instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances; and (iv) to notify the Fiscal Agent immediately upon learning of any compromise or unauthorized use of the security procedures. Section 12.11. Reference Date. This Funding Loan Agreement is dated for reference purposes only as of the date first above written. Section 12.12. Restatement of Construction Phase Funding Loan Agreement. The Construction Phase Funding Loan Agreement is hereby amended and restated in its entirety pursuant to this Funding Loan Agreement. [The remainder of this page is intentionally left blank; signature pages follow.] S-1 4856-5616-9347.5 IN WITNESS WHEREOF, the Funding Lender, the Fiscal Agent and the Governmental Lender have caused this Funding Loan Agreement to be duly executed as of the date first written above. CITIBANK, N.A., as the Funding Lender By: Name: Title: Deal ID # 60001596 [SIGNATURE PAGE TO AMENDED AND RESTATED FUNDING LOAN AGREEMENT – VISTA BREEZE] S-2 4856-5616-9347.5 THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Fiscal Agent By: ______________________________________ Name: Title: [SIGNATURE PAGE TO AMENDED AND RESTATED FUNDING LOAN AGREEMENT – VISTA BREEZE] S-3 4856-5616-9347.5 HOUSING FINANCE AUTHORITY OF MIAMI-DADE COUNTY, FLORIDA, as Governmental Lender By: Name: Title: [SIGNATURE PAGE TO AMENDED AND RESTATED FUNDING LOAN AGREEMENT – VISTA BREEZE] A-1 4856-5616-9347.5 EXHIBIT A FORM OF REQUIRED TRANSFEREE REPRESENTATIONS _________________, 20__ The undersigned, as holder (the “Holder”) of a loan (the “Funding Loan”) in the principal amount of $____________ from CITIBANK, N.A. (the “Funding Lender”) to Housing Finance Authority of Miami-Dade County, Florida (the “Governmental Lender”) pursuant to an Amended and Restated Funding Loan Agreement dated as of _________, 20__ (the “Funding Loan Agreement”) among the Funding Lender, The Bank of New York Mellon Trust Company, N.A., as fiscal agent (the “Fiscal Agent”), and the Governmental Lender (the “Funding Loan”) evidenced by the Multifamily Housing Revenue Note, Series 2023 (Vista Breeze) (the “Governmental Lender Note”), or an interest therein, hereby represents that: 1. The Holder has sufficient knowledge and experience in financial and business matters with respect to the evaluation of residential real estate developments such as the Project to be able to evaluate the risk and merits of the investment represented by the Governmental Lender Note. We are able to bear the economic risks of such investment. 2. The Holder acknowledges that it has either been supplied with or been given access to information, including financial statements and other financial information, to which a reasonable investor would attach significance in making investment decisions, and the Holder has had the opportunity to ask questions and receive answers from knowledgeable individuals concerning the Governmental Lender, the Project, the use of proceeds of the Governmental Lender Note and the security therefor so that, as a reasonable investor, the Holder has been able to make its decision to purchase the Governmental Lender Note or an interest therein. In entering into this transaction, the Holder acknowledges that it has not relied upon any representations or opinions of the Governmental Lender relating to the legal consequences to the Funding Lender or other aspects of its making the Funding Loan and acquiring the Governmental Lender Note, nor has it looked to, nor expected, the Governmental Lender to undertake or require any credit investigation or due diligence reviews relating to the Borrower, its financial condition or business operations, the Project (including the financing or management thereof), or any other matter pertaining to the merits or risks of the transactions contemplated by the Funding Loan Agreement and the Borrower Loan Agreement, or the adequacy of the funds pledged to the Funding Lender to secure repayment of the Governmental Lender Note. 3. The Holder is an Approved Transferee. 4. The Holder acknowledges that it is purchasing [an interest in] the Governmental Lender Note for investment for its own account and not with a present view toward resale or the distribution thereof, in that it does not now intend to resell or otherwise dispose of all or any part of its interests in the Governmental Lender Note; provided, however, that the Holder may sell or transfer the Governmental Lender Note[ or an interest therein] pursuant to the terms of Section 2.6 of the Funding Loan Agreement. 5. The Holder understands that the Governmental Lender Note is a limited obligation of the Governmental Lender; payable solely from funds and moneys pledged and assigned under the Funding Loan Agreement, and that the liabilities and obligations of the Governmental Lender with respect to the Governmental Lender Note is expressly limited as set forth in the Funding Loan Agreement and related documents. A-2 4856-5616-9347.5 6. The Holder acknowledges that the Funding Loan is being made as a direct loan evidenced by the Governmental Lender Note and not through the purchase of a municipal security and that the Governmental Lender will not make a filing with the municipal securities Rulemaking Board ’s Electronic Municipal Market Access Repository. The Holder acknowledges that no CUSIP numbers or credit ratings have been obtained with respect to the Governmental Lender Note. 7. The Holder hereby indemnifies the Governmental Lender and the Fiscal Agent from and against any and all liability, cost or expense (including attorneys’ fees) that may result if the purchase/transfer is not exempt from registration under the Securities Act or is not made in accordance with federal and state laws. Further, the Holder hereby affirms it shall not transfer or sel l the Governmental Lender Note or any interest therein to a party related to or affiliated with the Borrower, any general partner, limited partner or member of the Borrower without the prior written consent of the Governmental Lender. 8. Capitalized terms used herein and not otherwise defined have the meanings given such terms in the Funding Loan Agreement. [Remainder of page intentionally left blank.] A-3 4856-5616-9347.5 [Signature Page to Required Transferee Representations] [ ], as Holder By Name Its