Contract analysis

Section 1.1 — Definitions. As used in this Agreement, the following terms shall have the meanings set forth below. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in the Mezzanine Loan Agreement or, if not defined therein, the Senior Loan Agreement, or, if not defined in either, the LLC Agreement. "Acceptance and Consent" means the Acceptance and Consent of the Designa

Section 1.2 — Independence Requirements. The Designated Independent Director must, at all times during such person's service as an Independent Director of the Company, satisfy each of the following criteria (collectively, the "Independence Requirements"): (a) The Designated Independent Director shall not be, and shall not have been at any time during the five (5) years immediately preceding the date of such person's

Section 1.3 — Rules of Construction. Unless the context otherwise requires: (a) words importing the singular shall include the plural, and vice versa; (b) references to "herein," "hereof," "hereunder," and similar words refer to this Agreement as a whole and not to any particular provision of this Agreement; (c) references to any Article, Section, Exhibit, or Schedule refer to the applicable Article, Section, Exhibit

ARTICLE II DESIGNATION AND ACCEPTANCE

Section 2.1 — Initial Designation. Service Provider hereby designates Margaret A. Ellison as the initial Designated Independent Director of the Company, effective as of the date hereof. Ms. Ellison's business address is c/o Commonwealth Trust Company, 29 North Church Street, West Chester, Pennsylvania 19380. Service Provider confirms that Ms. Ellison has served as an independent director or independent manager for sp

Section 2.2 — Acceptance. The Designated Independent Director shall execute the Acceptance and Consent attached hereto as Exhibit A concurrently with or promptly following the execution of this Agreement. By executing the Acceptance and Consent, the Designated Independent Director shall confirm (a) acceptance of the designation as Independent Director of the Company, (b) acknowledgment of the fiduciary duties owed to

Section 2.3 — Appointment Under LLC Agreement. The Sole Member and the Company shall, concurrently with the execution of this Agreement, take all actions necessary or appropriate under the LLC Agreement to appoint the Designated Independent Director as an Independent Director of the Company, including without limitation executing and delivering any required amendments, supplements, or consent resolutions under the LL

Section 2.4 — One Independent Director Minimum. The Company shall at all times have at least one (1) Independent Director serving in such capacity, as required by the LLC Agreement and the Mezzanine Loan Agreement. In the event that, at any time, the Company has no Designated Independent Director (whether as a result of resignation, removal, incapacity, death, or failure to satisfy Independence Requirements), Service

ARTICLE III DUTIES AND MATERIAL ACTIONS

Section 3.1 — Definition of Material Action. As used in this Agreement, "Material Action" means any of the following actions with respect to the Company, whether taken directly or indirectly, voluntarily or involuntarily: (a) Filing or consenting to the filing of any petition for relief under the Bankruptcy Code, or any similar federal, state, or foreign insolvency, reorganization, moratorium, receivership, or simila

Section 3.2 — Consent Required. No Material Action shall be taken by the Company unless the Designated Independent Director shall have given prior unanimous written consent thereto. If more than one (1) Independent Director is serving at any given time, no Material Action shall be taken unless the prior unanimous written consent of all Independent Directors then serving shall have been obtained. Without limiting the

Section 3.3 — Fiduciary Duties. The Designated Independent Director shall, in exercising consent rights with respect to Material Actions, owe fiduciary duties to the Company, including fiduciary duties of care and loyalty. In fulfilling such fiduciary duties, the Designated Independent Director shall consider the interests of the Company and all of its creditors (including without limitation the Mezzanine Lender and

Section 3.4 — No Duty to Manage. Except with respect to Material Actions as set forth in this Article III, the Designated Independent Director shall have no management authority over the Company, no obligation to attend meetings of members or managers of the Company, no obligation to monitor the business, operations, financial condition, or affairs of the Company, and no obligation to review the books and records of

Section 3.5 — No Vote or Consent on Ordinary Matters. The Designated Independent Director's consent is required only with respect to Material Actions as defined in Section 3.1 hereof. The Designated Independent Director shall have no right to vote on, consent to, or otherwise participate in any decision-making with respect to ordinary business decisions, management matters, or day-to-day operations of the Company, al

ARTICLE IV TERM, REMOVAL, AND REPLACEMENT

Section 4.1 — Term. The designation of the Designated Independent Director under this Agreement shall continue until the earliest to occur of: (a) the date on which all obligations of the Company under the Mezzanine Loan Agreement and all obligations of the Mortgage Borrower under the Senior Loan Agreement have been indefeasibly paid and performed in full and all commitments of the Mezzanine Lender and the Senior Len

Section 4.2 — Removal. The Designated Independent Director may be removed as Independent Director of the Company only in the following circumstances: (a) For Cause. The Designated Independent Director may be removed for Cause by the Sole Member or the Company, upon written notice to the Designated Independent Director, Service Provider, and the Mezzanine Lender, specifying the grounds for removal. As used herein, "Ca

Section 4.3 — Resignation. The Designated Independent Director may resign from service as Independent Director of the Company upon not less than thirty (30) days' prior written notice to the Company, Service Provider, the Mezzanine Lender, and the Senior Lender. Such notice shall specify the proposed effective date of resignation. The resignation shall not be effective until a successor Designated Independent Directo

Section 4.4 — Replacement. In the event that the Designated Independent Director resigns, is removed, becomes incapacitated (whether by reason of physical or mental disability), dies, or otherwise ceases to satisfy any of the Independence Requirements: (a) Service Provider shall designate a replacement Designated Independent Director within five (5) business days of Service Provider's receipt of notice of such event

Section 4.5 — Springing Member. Upon the occurrence of any event that causes the Sole Member to cease to be a member of the Company (including without limitation the dissolution, liquidation, winding up, bankruptcy, insolvency, or cessation of existence of the Sole Member, or the transfer by the Sole Member of all of its membership interests in the Company in violation of the LLC Agreement), the Designated Independen

ARTICLE V COMPENSATION AND EXPENSES

Section 5.1 — Annual Fee. The Company shall pay to Service Provider an annual fee of Seven Thousand Five Hundred Dollars ($7,500) (the "Annual Fee") for the designation of the Designated Independent Director, payable in advance on each anniversary of the Effective Date (or, in the case of the first year, upon execution of this Agreement). The Annual Fee covers the designation of one (1) Designated Independent Directo

Section 5.2 — Reimbursement of Expenses. The Company shall reimburse Service Provider and the Designated Independent Director for all reasonable, documented out-of-pocket expenses actually incurred in connection with the performance of their respective duties and obligations under this Agreement, including without limitation (a) reasonable travel expenses, if any, incurred in connection with attendance at meetings or

Section 5.3 — Payment Terms. All fees and expenses payable under this Article V shall be due and payable within thirty (30) days following the date of the applicable invoice delivered by Service Provider to the Company. Late payments shall bear interest at the lesser of (a) one and one-half percent (1.5%) per month and (b) the maximum rate permitted by applicable law. The payment obligations of the Company under this

Section 5.4 — Mezzanine Lender as Third-Party Beneficiary. All compensation arrangements under this Article V are subject to the prior approval of the Mezzanine Lender to the extent required by the Mezzanine Loan Agreement or any other loan document. The Mezzanine Lender is an express third-party beneficiary of this Section 5.4 and shall have the right to enforce the provisions hereof.

ARTICLE VI REPRESENTATIONS AND WARRANTIES

Section 6.1 — Representations and Warranties of Service Provider. Service Provider hereby represents and warrants to the Company, as of the Effective Date, as follows: (a) Organization and Good Standing. Service Provider is duly organized and validly existing as a trust company in good standing under the laws of the Commonwealth of Pennsylvania and has all requisite power and authority to conduct its business as curr

Section 6.2 — Representations and Warranties of the Company. The Company hereby represents and warrants to Service Provider, as of the Effective Date, as follows: (a) Organization and Good Standing. The Company is duly formed and validly existing as a limited liability company in good standing under the laws of the State of Delaware and has all requisite limited liability company power and authority to conduct its bu

Section 6.3 — Ongoing Covenants of Service Provider. Service Provider hereby covenants and agrees that, for so long as this Agreement remains in effect: (a) Notification of Non-Compliance. Service Provider shall promptly, and in any event within two (2) business days, notify the Company and the Mezzanine Lender in writing if Service Provider becomes aware that the Designated Independent Director has ceased to satisfy

Section 7.1 — Indemnification by the Company. The Company shall indemnify, defend, and hold harmless Service Provider and the Designated Independent Director and their respective successors, heirs, executors, administrators, and assigns (each, an "Indemnitee") from and against any and all claims, demands, actions, suits, proceedings, judgments, damages, losses, liabilities, costs, and expenses (including reasonable a

Section 7.2 — Survival. The indemnification obligations of the Company set forth in this Article VII shall survive (a) the termination of this Agreement, (b) the resignation or removal of the Designated Independent Director, and (c) the dissolution, liquidation, or winding up of the Company, and shall remain in full force and effect until the expiration of all applicable statutes of limitations with respect to the cl

Section 7.3 — Advancement of Expenses. The Company shall advance to an Indemnitee, promptly upon request and prior to the final disposition of any claim, action, suit, or proceeding, all reasonable expenses (including reasonable attorneys' fees) incurred by such Indemnitee in connection with the defense of any claim, action, suit, or proceeding for which indemnification may be sought under Section 7.1 hereof; provide

Section 7.4 — Insurance. The Company shall, to the extent commercially available on reasonable terms and to the extent required by the Mezzanine Loan Agreement or the Senior Loan Agreement, obtain and maintain directors' and officers' liability insurance covering the Designated Independent Director, with coverage limits and deductibles reasonably satisfactory to the Mezzanine Lender. The Company shall provide Service

ARTICLE VIII LIMITATION OF LIABILITY

Section 8.1 — No Personal Liability. Neither Service Provider nor the Designated Independent Director shall be personally liable to the Company, the Sole Member, the Mezzanine Lender, the Senior Lender, or any other creditor of the Company for any act or omission in connection with the services provided under this Agreement, except in the case of fraud, willful misconduct, or gross negligence of such party. Without l

Section 8.2 — Cap on Liability. In no event shall the aggregate liability of Service Provider and the Designated Independent Director (or any successor Designated Independent Director) under this Agreement, whether in contract, tort, strict liability, or otherwise, exceed the total fees actually paid to Service Provider pursuant to Article V hereof during the twelve (12) months immediately preceding the date on which

Section 8.3 — Consequential Damages Waiver. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES PROVIDED HEREUNDER, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER THEORY, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH D

ARTICLE IX SPE COVENANTS AND ACKNOWLEDGMENTS

Section 9.1 — SPE Covenants. The Company acknowledges and agrees that, for so long as this Agreement remains in effect and any obligations under the Mezzanine Loan Agreement or the Senior Loan Agreement remain outstanding, the Company shall comply with all separateness covenants and special purpose entity requirements set forth in the LLC Agreement and the Mezzanine Loan Agreement, including without limitation: (a) m

Section 9.2 — Reliance by Mezzanine Lender and Senior Lender. The parties acknowledge and agree that the Mezzanine Lender and the Senior Lender are entering into the Mezzanine Loan Agreement and the Senior Loan Agreement, respectively, in material reliance upon the inclusion of the Independent Director requirement in the LLC Agreement and the provisions of this Agreement, and that the failure of the Company to mainta

Section 9.3 — No Amendment Without Mezzanine Lender Consent. This Agreement may not be amended, restated, supplemented, modified, or terminated, and no provision hereof may be waived, without the prior written consent of the Mezzanine Lender and the Senior Lender (to the extent required under the applicable intercreditor agreement among the Mezzanine Lender and the Senior Lender). Any amendment, modification, supplem

Section 10.1 — Notices. All notices, requests, demands, consents, approvals, and other communications required or permitted to be given under this Agreement (each, a "Notice") shall be in writing and shall be deemed duly given and received (a) when delivered by hand (with written confirmation of receipt), (b) one (1) business day after deposit with a nationally recognized overnight courier service (with written confi

Section 10.2 — Governing Law. This Agreement shall be governed by, and construed and interpreted in accordance with, the laws of the State of Delaware, without giving effect to any choice-of-law or conflict-of-laws rules or provisions (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware.

Section 10.3 — Jurisdiction and Venue. Each party hereto irrevocably and unconditionally submits to the exclusive jurisdiction of the Court of Chancery of the State of Delaware (or, if the Court of Chancery declines to accept jurisdiction over a particular matter, the Superior Court of the State of Delaware, or if neither such court will accept jurisdiction, the United States District Court for the District of Delawa

Section 10.4 — Entire Agreement. This Agreement, together with the LLC Agreement, the exhibits attached hereto, and the Mortgage Borrower Independent Director Agreement, constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous negotiations, representations, warranties, commitments, offers, agreements (whether written or oral), and understan

Section 10.5 — Severability. If any term, provision, covenant, or condition of this Agreement, or the application thereof to any Person or circumstance, shall be held to be invalid, illegal, or unenforceable in any respect by a court of competent jurisdiction, the remainder of this Agreement and the application of such term, provision, covenant, or condition to other Persons or circumstances shall not be affected the

Section 10.6 — Counterparts; Electronic Signatures. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which, taken together, shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page to this Agreement by facsimile transmission, portable document format (.pdf) transmission, or other electronic transmission shal

Section 10.7 — Assignment. Service Provider may not assign, transfer, or delegate its rights or obligations under this Agreement, in whole or in part, without the prior written consent of the Company and the Mezzanine Lender, which consent may be withheld in their respective sole and absolute discretion. The Company may not assign, transfer, or delegate its rights or obligations under this Agreement, in whole or in p

Section 10.8 — No Partnership or Joint Venture. Nothing contained in this Agreement shall be construed to create a partnership, joint venture, or agency relationship between the Company and Service Provider. Service Provider is an independent contractor, and neither Service Provider nor the Designated Independent Director shall be deemed to be an employee, agent, partner, or joint venturer of the Company for any purp

Section 10.9 — Relationship to Mortgage Borrower Independent Director Agreement. The parties acknowledge and agree that the terms of this Agreement are intended to be parallel to, and consistent with, the terms of the Mortgage Borrower Independent Director Agreement of even date herewith by and between the Mortgage Borrower and Service Provider. To the extent practicable, this Agreement and the Mortgage Borrower Inde

Section 10.10 — Successors and Assigns. This