8-K

Exhibit 10.1

GUARANTY AGREEMENT

THIS GUARANTY AGREEMENT (this “Guaranty”) is executed as of January 24, 2023, by JASON POLLACK, an individual, having an address at 4408 West 34th Avenue, Denver, Colorado 80212, FRANK DELLAGLIO, an individual, having an address at 11 Stoney Brook Road, Sherborn, Massachusetts 01770 and ACRES REALTY FUNDING, INC., a Delaware corporation, having an address at 390 RXR Plaza, Uniondale, New York 11556 (“ACRES”, together with Jason Pollack and Frank Dellaglio, individually or collectively, as the context may require, “Guarantor”), for the benefit of OCEANVIEW LIFE AND ANNUITY COMPANY, an Alabama corporation (together with its successors and assigns, “Lender”), having an address at c/o Oceanview Asset Management, 142 West 57th Street, 3rd Floor, New York, New York 10019.

W I T N E S S E T H :

WHEREAS, reference is made to that certain Building Loan Agreement of even date herewith between Chapel Drive East, LLC, a Delaware limited liability company (“Borrower”), and Lender (as the same may be amended, restated, replaced, supplemented, renewed, extended or otherwise modified from time to time, the “Loan Agreement”; capitalized terms used herein without definition shall have the respective meanings attributed thereto in the Loan Agreement);

WHEREAS, Lender is not willing to make the Loan, or otherwise extend credit, to Borrower unless Guarantor unconditionally guarantees payment and performance to Lender of the Guaranteed Obligations (as herein defined);

WHEREAS, Guarantor is the owner of a direct or indirect interest in Borrower, and Guarantor will directly benefit from Lender’s making the Loan to Borrower; and

WHEREAS, capitalized terms used and not otherwise defined herein shall have the meanings ascribed to such terms in the Loan Agreement.

NOW, THEREFORE, as an inducement to Lender to make the Loan to Borrower, and for Ten Dollars ($10.00) and other good and valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged, the parties do hereby agree as follows:

ARTICLE I

NATURE AND SCOPE OF GUARANTY

1.1

Obligations” shall mean all obligations and liabilities of Borrower for which Borrower shall be personally liable pursuant to Section 10.7 of the Loan Agreement.

1.2

Nature of Guaranty. This Guaranty is an irrevocable, absolute, continuing guaranty of payment and performance and not a guaranty of collection. This Guaranty may not be revoked by Guarantor and shall continue to be effective with respect to any Guaranteed Obligations arising or created after any attempted revocation by Guarantor and (if Guarantor is a natural person) after Guarantor’s death (in which event this Guaranty shall be binding upon Guarantor’s estate and Guarantor’s legal representatives and heirs). The fact that at any time or from time to time the Guaranteed Obligations may be increased or reduced shall not release or discharge the obligation of Guarantor to Lender with respect to the Guaranteed Obligations. This Guaranty may be enforced by Lender and any subsequent holder of the Note and shall not be discharged by the assignment or negotiation of all or part of the Note.

1.3

Guaranteed Obligations Not Reduced by Offset. The Guaranteed Obligations and the liabilities and obligations of Guarantor to Lender hereunder, shall not be reduced, discharged or released because or by reason of any existing or future offset, claim or defense of Borrower, or any other party (excluding the defense of payment and performance of the Guaranteed Obligations), against Lender or against payment of the Guaranteed Obligations, whether such offset, claim or defense arises in connection with the Guaranteed Obligations (or the transactions creating the Guaranteed Obligations) or otherwise.

1.4

Payment By Guarantor. If all or any part of the Guaranteed Obligations shall not be punctually paid when due, whether at demand, maturity, acceleration or otherwise, Guarantor shall, within ten (10) Business Days following demand by Lender, and without presentment, protest, notice of protest, notice of non-payment, notice of intention to accelerate the maturity, notice of acceleration of the maturity, or any other notice whatsoever, pay in lawful money of the United States of America, the amount due on the Guaranteed Obligations to Lender at Lender’s address as set forth herein. Such demand(s) may be made at any time coincident with or after the time for payment of all or part of the Guaranteed Obligations, and may be made from time to time with respect to the same or different items of Guaranteed Obligations. Such demand shall be deemed made, given and received in accordance with the notice provisions hereof. Any moneys available to Lender for application on account of the Loan may be applied by Lender in such order and priority, in such amounts, at such time or times, and as to such portions of the Debt (including, without limitation, principal, interest, and other sums), as Lender may elect in its sole discretion from time to time.

1.5

No Duty To Pursue Others. It shall not be necessary for Lender (and Guarantor hereby waives any rights which Guarantor may have to require Lender), in order to enforce the obligations of Guarantor hereunder, first to (a) institute suit or exhaust its remedies against Borrower or others liable on the Loan or the Guaranteed Obligations or any other person, (b) enforce Lender’s rights against any collateral which shall ever have been given to secure the Loan, (c) enforce Lender’s rights against any other guarantors of the Guaranteed Obligations, (d) join Borrower or any others liable on the Guaranteed Obligations in any action seeking to enforce this Guaranty, (e) exhaust any remedies available to Lender against any collateral which shall ever have been given to secure the Loan, or (f) resort to any other means of obtaining payment of the Guaranteed Obligations.

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Lender shall not be required to mitigate damages or take any other action to reduce, collect or enforce the Guaranteed Obligations.

1.6

Waivers.

(a)

Guarantor agrees to the provisions of the Loan Documents, and hereby waives, to the extent permitted by law, notice of (i) any loans or advances made by Lender to Borrower, (ii) acceptance of this Guaranty, (iii) any amendment or extension of the Note, the Loan Agreement or of any other Loan Documents, (iv) the execution and delivery by Borrower and Lender of any other loan or credit agreement or of Borrower’s execution and delivery of any promissory notes or other documents arising under the Loan Documents or in connection with the Property, (v) the occurrence of any breach by Borrower or an Event of Default, (vi) Lender’s transfer or disposition of the Guaranteed Obligations, or any part thereof, (vii) sale or foreclosure (or posting or advertising for sale or foreclosure) of any collateral for the Guaranteed Obligations, (viii) protest, proof of non-payment or default by Borrower, and (ix) any other action at any time taken or omitted by Lender, and, generally, all demands and notices of every kind in connection with this Guaranty, the Loan Documents, or any documents or agreements evidencing, securing or relating to any of the Guaranteed Obligations. Notwithstanding the foregoing or anything to the contrary contained in this Guaranty, Guarantor does not waive the right to receive any notices from Lender to the extent such notices are expressly required to be given by Lender under the Loan Documents but the failure to provide such notices shall not give rise to any defenses by Guarantor hereunder or otherwise limit Lender’s rights hereunder (other than to the extent any grace periods under the Loan Documents are extended as a result thereof).

(b)

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liquidation, termination, receivership, reorganization, merger, consolidation, change of form, structure or ownership, sale of all assets, or lack of corporate, partnership or other power of Borrower or any other party at any time liable for the payment or performance of any or all of the Guaranteed Obligations; (viii) either with or without notice to or consent of Guarantor: any renewal, extension, modification or rearrangement of the terms of any or all of the Guaranteed Obligations and/or any of the Loan Documents; (ix) any neglect, lack of diligence, delay, omission, failure, or refusal of Lender to take or prosecute (or in taking or prosecuting) any action for the collection or enforcement of any of the Guaranteed Obligations, or to foreclose or take or prosecute any action to foreclose (or in foreclosing or taking or prosecuting any action to foreclose) upon any security therefor, or to exercise (or in exercising) any other right or power with respect to any security therefor, or to take or prosecute (or in taking or prosecuting) any action in connection with any Loan Document, or any failure to sell or otherwise dispose of in a commercially reasonable manner any collateral securing any or all of the Guaranteed Obligations; (x) any failure of Lender to notify Guarantor of any creation, renewal, extension, rearrangement, modification, supplement, subordination, or assignment of the Guaranteed Obligations or any part thereof, or of any Loan Document, or of any release of or change in any security, or of any other action taken or refrained from being taken by Lender against Borrower or any security or other recourse, or of any new agreement between Lender and Borrower, it being understood that Lender shall not be required to give Guarantor any notice of any kind under any circumstances with respect to or in connection with the Guaranteed Obligations, any and all rights to notice Guarantor may have otherwise had being hereby waived by Guarantor, and Guarantor shall be responsible for obtaining for itself information regarding Borrower, including, but not limited to, any changes in the business or financial condition of Borrower, and Guarantor acknowledges and agrees that Lender shall have no duty to notify Guarantor of any information which Lender may have concerning Borrower; (xi) if for any reason that Lender is required to refund any payment by Borrower to any other party liable for the payment or performance of any or all of the Guaranteed Obligations or pay the amount thereof to someone else; (xii) the making of advances by Lender to protect its interest in the Property, preserve the value of the Property or for the purpose of performing any term or covenant contained in any of the Loan Documents; (xiii) the existence of any claim, counterclaim, set off, recoupment, reduction or defense (excluding the defense of payment and performance of the Guaranteed Obligations) based upon any claim or other right that Guarantor may at any time have against Borrower, Lender, or any other Person, whether or not arising in connection with this Guaranty, the Note, the Loan Agreement, or any other Loan Document; (xiv) the unenforceability of all or any part of the Guaranteed Obligations against Borrower, whether because the Guaranteed Obligations exceed the amount permitted by law or violate any usury law, or because the act of creating the Guaranteed Obligations, or any part thereof, is ultra vires, or because the officers or Persons creating same acted in excess of their authority, or because of a lack of validity or enforceability of or defect or deficiency in any of the Loan Documents, or because Borrower has any valid defense, claim or offset with respect thereto, or because Borrower’s obligation ceases to exist by operation of law, or because of any other reason or circumstance, it being agreed that Guarantor shall remain liable hereon regardless of whether Borrower or any other Person be found not liable on the Guaranteed Obligations, or any part thereof, for any reason (and regardless of any joinder of Borrower or any other party in any action to obtain payment or performance of any or all of the Guaranteed Obligations); (xv) any order, ruling or plan of reorganization emanating from proceedings under any Creditors’ Rights Law (whether with respect to Borrower or any other Person), including any extension, reduction, composition, or other alteration of the Guaranteed

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Obligations, whether or not consented to by Lender; and/or (xvi) any partial or total transfer, pledge and/or reconstitution of the Property, Borrower and/or any direct or indirect owner of Borrower (regardless of whether the same is permitted under the Loan Documents).

(c)

This Guaranty shall be effective as a waiver of, and Guarantor hereby expressly waives , to the extent permitted by law:

(i)

any and all rights to which Guarantor may otherwise have been entitled under any suretyship laws in effect from time to time, including any right or privilege, whether existing under statute, at law or in equity, to require Lender to take prior recourse or proceedings against any collateral, security or Person whatsoever; and

(ii)

any right and/or requirement of or related to notice, presentment, protest, notice of protest, further notice of nonpayment, notice of dishonor, default, nonperformance, intent to accelerate, acceleration, existence of the Debt and/or any amendment or modification of the Debt.

1.7

Payment of Expenses. In the event that Borrower or Guarantor should fail to timely pay any of the Guaranteed Obligations or that Guarantor should breach or fail to timely perform any other provisions of this Guaranty, Guarantor shall, immediately upon demand by Lender, pay Lender all actual and reasonable out-of-pocket costs and expenses (including court costs and attorneys’ fees) incurred by Lender in the collection of the Guaranteed Obligations, the enforcement of this Guaranty and/or the preservation of Lender’s rights hereunder. The covenant contained in this Section shall survive the payment and performance of the Guaranteed Obligations.

1.8

Effect of Bankruptcy. In the event that, pursuant to any Creditors’ Rights Law or any judgment, order or decision thereunder, Lender must rescind or restore any payment, or any part thereof, received by Lender in satisfaction of the Guaranteed Obligations, as set forth herein, any prior release or discharge from the terms of this Guaranty given to Guarantor by Lender shall be without effect, and this Guaranty shall remain in full force and effect. It is the intention of Borrower and Guarantor that Guarantor’s obligations hereunder shall not be discharged except by Guarantor’s performance of such obligations and then only to the extent of such performance.

1.9

Waiver of Subrogation, Reimbursement and Contribution. Notwithstanding anything to the contrary contained in this Guaranty, Guarantor hereby unconditionally and irrevocably waives, releases and abrogates any and all rights it may now or hereafter have under any agreement, at law or in equity (including, without limitation, any law subrogating the Guarantor to the rights of Lender), to assert any claim against or seek contribution, indemnification or any other form of reimbursement from Borrower or any other party liable for payment of any or all of the Guaranteed Obligations (other than, so long as no Guaranteed Obligations are then due and owing to Lender, with respect to another Guarantor) for any payment made by Guarantor under or in connection with this Guaranty or otherwise.

1.10

Borrower. The term “Borrower” as used herein shall include any new or successor corporation, association, partnership (general or limited), joint venture, trust or other individual or organization formed as a result of any merger, reorganization, sale, transfer, devise, gift or bequest of Borrower or any interest in Borrower, and any successor owner of the Property.

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1.11

Indemnification Procedures.

(a)

If any action shall be brought against Lender based upon any matter arising out of the Guaranteed Obligations or this Guaranty, Guarantor shall, at its sole cost and expense, protect, defend, indemnify, release and hold harmless Lender from and against any and all actual losses, damages, costs, fees, expenses, claims, suits, judgments, awards, liabilities (including, but not limited to, strict liabilities), and obligations imposed upon, incurred by or asserted against Lender in connection therewith. Lender shall notify Guarantor in writing of any of the matters for which Lender is indemnified hereunder and Guarantor shall promptly assume the defense thereof, including, without limitation, the employment of counsel reasonably acceptable to Lender and the negotiation of any settlement (which settlement, however, shall be subject to Section 1.11(b) below); provided, however, that any failure of Lender to notify Guarantor of such matter shall not impair or reduce the obligations of Guarantor hereunder. If the defendants in any such action include both Lender and Guarantor and Lender shall have reasonably concluded that there are any legal defenses available to it that are different from or in addition to those available to Guarantor, then Lender shall have the right, at the expense of Guarantor (which expense shall be included in the Guaranteed Obligations), to employ separate counsel in any such action and to participate in the defense thereof. In the event Guarantor shall fail to discharge or undertake to defend Lender against any claim, loss or liability for which Lender is indemnified hereunder, Lender may, at its sole option and election, defend or settle such claim, loss or liability. The liability of Guarantor to Lender hereunder shall be conclusively established by such settlement, provided such settlement is made in good faith, the amount of such liability to include both the settlement consideration and the costs and expenses, including, without limitation, reasonable attorneys’ fees and disbursements, incurred by Lender in effecting such settlement. In such event, such settlement consideration and out-of-pocket costs and expenses shall be included in the Guaranteed Obligations and Guarantor shall pay the same as hereinafter provided. Lender’s good faith in any such settlement shall be conclusively established if the settlement is made on the advice of independent legal counsel for Lender.

(b)

If any action shall be brought against Lender based upon any of the matters for which Lender is indemnified hereunder, Guarantor shall not, without the prior written consent of Lender, not to be unreasonably withheld, conditioned or delayed so long as no Event of Default is then continuing: (i) settle or compromise any action, suit, proceeding or claim or consent to the entry of any judgment that does not include as an unconditional term thereof the delivery by the claimant or plaintiff to Lender of a full and complete written release of Lender (in form, scope and substance reasonably satisfactory to Lender in its sole discretion) from all liability in respect of such action, suit, proceeding or claim and a dismissal with prejudice of such action, suit, proceeding or claim; or (ii) settle or compromise any action, suit, proceeding or claim in any manner that may adversely affect Lender or obligate Lender to pay any sum or perform any obligation as determined by Lender in its sole but reasonable discretion.

(c)

All Guaranteed Obligations shall be immediately reimbursable to Lender when and as incurred and, in the event of any litigation, claim or other proceeding, without any requirement of waiting for the ultimate outcome of such litigation, claim or other proceeding, and Guarantor shall pay to Lender any and all Guaranteed Obligations within ten (10) Business Days after written notice from Lender itemizing the amounts thereof incurred to the date of such notice. In addition to any other remedy available to Lender, such Guaranteed Obligations, if not paid within said ten

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(10) Business Day period, shall bear interest at the Default Rate from the date incurred until the date paid.

(d)

Notwithstanding anything to the contrary herein or in the Loan Documents, in no event shall Guarantor be liable to Lender for any special, punitive or consequential damages of any kind of nature unless such damages are actually incurred by, or asserted against, Lender to a third party.

1.12

Other Guaranties. This Guaranty is separate, distinct and in addition to any liability and/or obligations that Borrower or Guarantor may have under any other guaranty or indemnity (including, without limitation, the Environmental Indemnity) executed by any Borrower or Guarantor in connection with the Loan, and no other agreement, guaranty or indemnity executed in connection with the Loan shall act to reduce or set off any of Guarantor’s liability hereunder.

ARTICLE II

EVENTS AND CIRCUMSTANCES NOT REDUCING
OR DISCHARGING GUARANTOR’S OBLIGATIONS

Guarantor hereby consents and agrees to each of the following, and agrees that Guarantor’s obligations under this Guaranty shall not be released, diminished, impaired, reduced or adversely affected by any of the following, and waives any common law, equitable, statutory or other rights (including without limitation rights to notice) which Guarantor might otherwise have as a result of or in connection with any of the following:

2.1

Modifications. Any renewal, extension, increase, modification, alteration or rearrangement of all or any part of the Guaranteed Obligations, the Note, the Loan Agreement, the other Loan Documents, or any other document, instrument, contract or understanding between Borrower and Lender, or any other parties, pertaining to the Guaranteed Obligations or any failure of Lender to notify Guarantor of any such action.

2.2

Adjustment. Any adjustment, indulgence, forbearance or compromise that might be granted or given by Lender to Borrower or any Guarantor.

2.3

Condition of Borrower or Guarantor. The insolvency, bankruptcy, arrangement, adjustment, composition, liquidation, disability, dissolution or lack of power of Borrower, Guarantor or any other party at any time liable for the payment of all or part of the Guaranteed Obligations; or any dissolution of Borrower or Guarantor, or any sale, lease or transfer of any or all of the assets of Borrower or Guarantor, or any changes in the shareholders, partners or members of Borrower or Guarantor; or any reorganization of Borrower or Guarantor.

2.4

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(whether at law, in equity or by agreement) which render the Guaranteed Obligations wholly or partially uncollectible from Borrower, (f) the creation, performance or repayment of the Guaranteed Obligations (or the execution, delivery and performance of any document or instrument representing part of the Guaranteed Obligations or executed in connection with the Guaranteed Obligations, or given to secure the repayment of the Guaranteed Obligations) is illegal, uncollectible or unenforceable, or (g) the Note, the Loan Agreement or any of the other Loan Documents has been forged or otherwise is irregular or not genuine or authentic, it being agreed that Guarantor shall remain liable hereon regardless of whether Borrower or any other Person be found not liable on the Guaranteed Obligations or any part thereof for any reason.

2.5

Release of Obligors. Any full or partial release of the liability of Borrower on the Guaranteed Obligations, or any part thereof, or of any co-guarantors, or any other person or entity now or hereafter liable, whether directly or indirectly, jointly, severally, or jointly and severally, to pay, perform, guarantee or assure the payment of the Guaranteed Obligations, or any part thereof, it being recognized, acknowledged and agreed by Guarantor that Guarantor may be required to pay the Guaranteed Obligations in full without assistance or support of any other party, and Guarantor has not been induced to enter into this Guaranty on the basis of a contemplation, belief, understanding or agreement that other Persons will be liable to pay or perform the Guaranteed Obligations, or that Lender will look to other Persons to pay or perform the Guaranteed Obligations.

2.6

Other Collateral. The taking or accepting of any other security, collateral or guaranty, or other assurance of payment, for all or any part of the Guaranteed Obligations.

2.7

Release of Collateral. Any release, surrender, exchange, subordination, deterioration, waste, loss or impairment (including, without limitation, negligent, willful, unreasonable or unjustifiable impairment) of any collateral, property or security at any time existing in connection with, or assuring or securing payment of, all or any part of the Guaranteed Obligations.

2.8

Care and Diligence. The failure of Lender or any other party to exercise diligence or reasonable care in the preservation, protection, enforcement, sale or other handling or treatment of all or any part of such collateral, property or security, including but not limited to any neglect, delay, omission, failure or refusal of Lender (a) to take or prosecute any action for the collection of any of the Guaranteed Obligations or (b) to foreclose, or initiate any action to foreclose, or, once commenced, prosecute to completion any action to foreclose upon any security therefor, or (c) to take or prosecute any action in connection with any instrument or agreement evidencing or securing all or any part of the Guaranteed Obligations.

2.9

Unenforceability. The fact that any collateral, security, security interest or lien contemplated or intended to be given, created or granted as security for the repayment of the Guaranteed Obligations, or any part thereof, shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other security interest or lien, it being recognized and agreed by Guarantor that Guarantor is not entering into this Guaranty in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectibility or value of any of the collateral for the Guaranteed Obligations.

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2.10

Offset. Any existing or future right of offset, claim or defense of Borrower against Lender, or any other Person, or against payment of the Guaranteed Obligations, whether such right of offset, claim or defense arises in connection with the Guaranteed Obligations (or the transactions creating the Guaranteed Obligations) or otherwise.

2.11

Merger. The reorganization, merger or consolidation of Borrower into or with any other corporation or entity.

2.12

Preference. Any payment by Borrower to Lender is held to constitute a preference under Creditors’ Rights Laws, or for any reason Lender is required to refund such payment or pay such amount to Borrower or someone else.

2.13

Other Actions Taken or Omitted. Any other action taken or omitted to be taken with respect to the Loan Documents, the Guaranteed Obligations, or the security and collateral therefor, whether or not such action or omission prejudices Guarantor or increases the likelihood that Guarantor will be required to pay the Guaranteed Obligations pursuant to the terms hereof, it is the unambiguous and unequivocal intention of Guarantor that Guarantor shall be obligated to pay the Guaranteed Obligations when due, notwithstanding any occurrence, circumstance, event, action, or omission whatsoever, whether contemplated or uncontemplated, and whether or not otherwise or particularly described herein, which obligation shall be deemed satisfied only upon the full and final payment and satisfaction of the Guaranteed Obligations.

ARTICLE III

REPRESENTATIONS, WARRANTIES AND COVENANTS

To induce Lender to enter into the Loan Documents and extend credit to Borrower, Guarantor represents, warrants and covenants to Lender as follows:

3.1

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ACRES is a disregarded entity for tax purposes and therefore is not required to and does not file any tax returns); (f) the financial statements and other information pertaining to Guarantor submitted to Lender are true, complete and correct in all material respects and do not contain any material misstatement of fact or omit to state a material fact or any fact necessary to make the statements contained therein not misleading; (g) there is no litigation, at law or in equity, or any proceeding before any federal, state, provincial or municipal board or other governmental or administrative agency pending or, to the knowledge of Guarantor, threatened, or any basis therefor, which involves a risk of any material judgment or liability not fully covered by insurance (other than any deductible) which is likely to be adversely determined and if so, would have a Material Adverse Effect, and no judgment, decree, or order of any federal, state, provincial or municipal court, board or other governmental or administrative agency has been issued against Guarantor which has a Material Adverse Effect; (h) the making of the Loan to Borrower will result in material benefits to Guarantor; (i) Guarantor (1) has not entered into this Guaranty or any Loan Document with the actual intent to hinder, delay, or defraud any creditor and (2) has received reasonably equivalent value in exchange for the Guaranteed Obligations hereunder and under the Loan Documents; (j) Guarantor is not a “foreign person” within the meaning of Section 1445(1)(3) of the Internal Revenue Code; and (k) each of the representations and covenants relating to Guarantor made by Borrower in any other Loan Documents is hereby re-made by Guarantor and incorporated herein by reference as if fully set forth herein.

3.2

Benefit. Guarantor is the owner of a direct or indirect interest in Borrower, and has received, or will receive, direct or indirect benefit from the making of this Guaranty with respect to the Guaranteed Obligations.

3.3

Familiarity and Reliance. Guarantor is familiar with, and has independently reviewed each of the Loan Documents and the books and records regarding the financial condition of the Borrower and is familiar with the value of any and all collateral intended to be created as security for the payment of the Loan or the Guaranteed Obligations; however, Guarantor is not relying on such financial condition or the collateral as an inducement to enter into this Guaranty.

3.4

No Representation By Lender. Neither Lender nor any other party has made any representation, warranty or statement to Guarantor in order to induce the Guarantor to execute this Guaranty.

3.5

Guarantor’s Financial Condition. As of the date hereof, and after giving effect to this Guaranty and the contingent obligation evidenced hereby, Guarantor is, and will be, solvent, and has and will have assets which, fairly valued, exceed its obligations, liabilities (including contingent liabilities) and debts, and has and will have property and assets sufficient to satisfy and repay its obligations and liabilities.

3.6

Guarantor Financial Reporting, Net Worth and Liquidity.

(a)

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provide to Lender, upon Lender’s reasonable request, such proofs of payments, costs, expenses, revenues and earnings, and other documentation as Lender may reasonably request, from time to time, and with such other information, in such detail as may reasonably be required by Lender; provided, however, in no event shall Lender request or ACRES be required to furnish or cause to be furnished any audited financial statements or tax returns of ACRES.

(b)

Lender shall have the right, at any time and from time to time upon the occurrence and continuance of an “Event of Default” hereunder or under the other Loan Documents, to audit the books and records of Guarantor.

(c)

During the term hereunder, Guarantor will furnish or cause to be furnished to Lender, as soon as available, and in any event within ninety (90) days after the end of each calendar year, the annual financial statements of Guarantor, which financial statements shall be prepared on an unaudited basis, in form substantially similar to those previously delivered by Guarantor to Lender and which shall include Guarantor’s balance sheet, tax returns (except with respect to ACRES) and statements of net worth and contingent liabilities. All such financial statements shall be certified by Guarantor to Lender as true and correct in all material respects, and shall contain such backup and/or supporting information as may be reasonably requested by Lender. In addition, Guarantor shall promptly furnish to Lender any other financial information reasonably requested by Lender from time to time in respect of Guarantor; provided, however, in no event shall Lender request or ACRES be required to furnish or cause to be furnished any audited financial statements or tax returns of ACRES.

(d)

Guarantor hereby makes the following additional affirmative covenants:

(i)

At any time when (A) an Event of Default is continuing, or (B) any Guaranteed Obligations are then owed by Borrower or Guarantor, and/or (C) Guarantor is not in compliance with the covenants set forth in clause (d)(ii) below, then Guarantor shall not do any of the following: (X) sell, pledge, give, gift, mortgage or otherwise transfer any asset of Guarantor to any Affiliate or family member of Guarantor; (Y) enter into or effectuate any transaction that would reduce either the Net Worth or the Unencumbered Liquid Assets of Guarantor; or (Z) sell, pledge, mortgage or otherwise transfer any of its assets, or any interest(s) therein, on terms materially less favorable than would be obtained in an arms’-length transaction.

(ii)

At all times while the Debt remains unsatisfied, Guarantor shall collectively maintain a Net Worth of not less than $60,000,000.00, and Unencumbered Liquid Assets (defined below) of not less than (a) $10,000,000.00 until such time that the Property achieves a Debt Yield of not less than nine percent (9.0%) as of the end of any calendar quarter, and (b) thereafter, $5,000,000.00. For purposes of the foregoing clause (a), the Debt Yield shall be calculated using the Underwritable Cash Flow on a trailing three (3) month basis, annualized.

(iii)

As used above, the following terms shall have the following meanings:

(1) “Cash and Cash Equivalents” shall mean: (i) United States dollars and (ii) any of the following which may be liquidated or made available without restrictions within five (5) Business Days or less: (a) securities issued or directly and fully guaranteed or insured by the United States government or any agency or

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instrumentality thereof, valued at the current market value thereof; (b) certificates of deposit and Eurodollar time deposits with maturities of six (6) months or less from the date of acquisition, bankers’ acceptances with maturities not exceeding six months and overnight bank deposits, in each case, with any domestic commercial bank insured by the FDIC or by any other Eligible Institution; (c) repurchase obligations with a term of not more than seven (7) days for underlying securities of the types described in clauses (ii)(a) and (b) above entered into with any Eligible Institution; (d) commercial paper having the highest rating obtainable from Moody’s or S&P, and in each case maturing within six months after the date of acquisition; and (e) money market funds substantially all the assets of which are comprised of securities and other obligations of the types described in clauses (i) and (ii)(a) through (d) above.

(2) “Unencumbered Liquid Assets” shall be determined by Lender in its reasonable discretion, as of June 30 and December 31 of each calendar year, and shall include only the following assets of Guarantor, as set forth on Guarantor’s balance sheet, and only to the extent held by Guarantor free and clear of all liens, encumbrances and security interests: (x) all Cash and Cash Equivalents, and (y) marketable securities owned of record and beneficially by Guarantor and which are freely tradable, without any restriction (including, without limitation, any requirement for future registration thereof) on the New York Stock Exchange or NASDAQ (or any successors thereto), to the extent acquired for investment or with a view to achieving trading profits (and which may be liquidated without restrictions within five (5) Business Days or less).

3.7

Legality. The execution, delivery and performance by Guarantor of this Guaranty and the consummation of the transactions contemplated hereunder do not, and will not, contravene or conflict with any law, statute or regulation whatsoever to which Guarantor is subject or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or result in the breach of, any indenture, mortgage, deed of trust, charge, lien, or any contract, agreement or other instrument to which Guarantor is a party or which may be applicable to Guarantor. This Guaranty is a legal and binding obligation of Guarantor and is enforceable in accordance with its terms, except as limited by bankruptcy, insolvency or other laws of general application relating to the enforcement of creditors’ rights.

3.8

Survival. All representations and warranties made by Guarantor herein shall survive the execution hereof for so long as the Loan shall remain outstanding.

ARTICLE IV

SUBORDINATION OF CERTAIN INDEBTEDNESS

4.1

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Borrower under any Creditors’ Rights Law, which interest the parties agree shall remain a claim that is prior and superior to any claim of Guarantor notwithstanding any contrary practice, custom or ruling), Guarantor agrees not to accept any payment or satisfaction of any Guarantor Claim. Effective upon the earlier to occur of the existence of any Guaranteed Obligations and any Event of Default, Guarantor hereby assigns all Guarantor Claims to Lender, including the right to file proof of claim and to vote thereon in connection with any such proceeding under any Creditors’ Rights Law, including the right to vote on any plan of reorganization. Further, if Guarantor shall comprise more than one Person, Guarantor agrees that until such payment in full of the Loan, (a) no one of them shall accept payment from the others by way of contribution on account of any payment made hereunder by such party to Lender, (b) no one of them will take any action to exercise or enforce any rights to such contribution, (c) if any Guarantor should receive any payment, satisfaction or security for any contribution by any other Guarantor for payment made hereunder by the recipient to Lender, the same shall be delivered to Lender in the form received, endorsed or assigned as may be appropriate for application on account of, or as security for, the Guaranteed Obligations and until so delivered, shall be held in trust for Lender as security for the Guaranteed Obligations, and (d) if any Guarantor should receive any payment, satisfaction or security for any Guarantor Claim, the same shall be delivered to Lender in the form received, endorsed or assigned as may be appropriate for application on account of, or as security for, the Loan and until so delivered, shall be held in trust for Lender as security for the Loan. As used herein, the term “Guarantor Claims” shall mean all debts and liabilities of Borrower to Guarantor, whether such debts and liabilities now exist or are hereafter incurred or arise, or whether the obligations of Borrower thereon be direct, contingent, primary, secondary, several, joint and several, or otherwise, and irrespective of whether such debts or liabilities be evidenced by note, contract, open account, or otherwise, and irrespective of the Person in whose favor such debts or liabilities may, at their inception, have been, or may hereafter be created, or the manner in which they have been or may hereafter be acquired by Guarantor. The Guarantor Claims shall include without limitation all rights and claims of Guarantor against Borrower (arising as a result of subrogation or otherwise) as a result of Guarantor’s payment of all or a portion of the Guaranteed Obligations.

4.2

Claims in Bankruptcy. In the event of receivership or proceedings under any Creditors’ Rights Law involving Guarantor as debtor, Lender shall have the right to prove its claim in any such proceeding so as to establish its rights hereunder and receive directly from the receiver, trustee or other court custodian dividends and payments which would otherwise be payable upon Guarantor Claims. Guarantor hereby assigns such dividends and payments to Lender. Should Lender receive, for application upon the Guaranteed Obligations, any such dividend or payment which is otherwise payable to Guarantor, and which, as between Borrower and Guarantor, shall constitute a credit upon the Guarantor Claims, then upon payment to Lender in full of the Guaranteed Obligations, Guarantor shall become subrogated to the rights of Lender to the extent that such payments to Lender on the Guarantor Claims have contributed toward the liquidation of the Guaranteed Obligations, and such subrogation shall be with respect to that proportion of the Guaranteed Obligations which would have been unpaid if Lender had not received dividends or payments upon the Guarantor Claims.

4.3

Payments Held in Trust. In the event that, notwithstanding anything to the contrary in this Guaranty, Guarantor should receive any funds, payment, claim or distribution which is prohibited by this Guaranty, Guarantor agrees to hold in trust for Lender an amount equal to the amount of

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all funds, payments, claims or distributions so received, and agrees that it shall have absolutely no dominion over the amount of such funds, payments, claims or distributions so received except to pay them promptly to Lender, and Guarantor covenants promptly to pay the same to Lender.

4.4

Liens Subordinate. Guarantor agrees that any liens, security interests, judgment liens, charges or other encumbrances upon Borrower’s assets securing payment of the Guarantor Claims shall be and remain inferior and subordinate to any liens, security interests, judgment liens, charges or other encumbrances upon Borrower’s assets securing payment of the Guaranteed Obligations, regardless of whether such encumbrances in favor of Guarantor or Lender presently exist or are hereafter created or attach. Without the prior written consent of Lender, Guarantor shall not (a) exercise or enforce any creditor’s right it may have against Borrower or (b) foreclose, repossess, sequester or otherwise take steps or institute any action or proceedings (judicial or otherwise, including without limitation the commencement of, or joinder in, any liquidation, bankruptcy, rearrangement, debtor’s relief or insolvency proceeding) to enforce any liens, mortgages, deeds of trust, security interests, collateral rights, judgments or other encumbrances on assets of Borrower held by Guarantor.

ARTICLE V

MISCELLANEOUS

5.1

Waiver. No failure to exercise, and no delay in exercising, on the part of Lender, any right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right. The rights of Lender hereunder shall be in addition to all other rights provided by law. No modification or waiver of any provision of this Guaranty, nor consent to departure therefrom, shall be effective unless in writing and no such consent or waiver shall extend beyond the particular case and purpose involved. No notice or demand given in any case shall constitute a waiver of the right to take other action in the same, similar or other instances without such notice or demand.

5.2

Notices. All notices, consents, approvals and requests made, required or permitted hereunder shall be given in writing and shall be effective for all purposes if hand delivered or sent by (a) certified United States mail, postage prepaid, return receipt requested, or (b) expedited prepaid delivery service, either commercial or United States Postal Service, with proof of attempted delivery, addressed as follows (or at such other address and Person as shall be designated from time to time by any party hereto, as the case may be, in a notice to the other parties hereto in the manner provided for in this Section 5.2):

Guarantor: Jason Pollack
4408 West 34th Avenue
Denver, Colorado 80212

Frank Dellaglio
11 Stoney Brook Road
Sherborn, Massachusetts 01770

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ACRES Realty Funding, Inc.
c/o ACRES Capital, LLC
390 RXR Plaza
Uniondale, New York 11556
Attention: Jaclyn A. Jesberger, General Counsel

And to: Greenberg Traurig, LLP
One International Place
Boston, Massachusetts 02110
Attn: Dina E. Conlin

Murland Dainoff LLC
651 E. Township Line Road, #1055
Blue Bell, PA 19422
Attn: Brian L. Murland

If to Lender: Oceanview Life and Annuity Company
Attention: Matthew Phillip
c/o Oceanview Asset Management
142 West 57th Street, 3rd Floor
New York, New York 10019

Oceanview Life and Annuity Company
Attention: Marnie Adams
c/o Oceanview Asset Management
142 West 57th Street, 3rd Floor
New York, New York 10019

And to: Cadwalader, Wickersham & Taft LLP
650 South Tryon Street
Charlotte, North Carolina 28202
Attention: Christopher Dickson, Esq.

5.3

Governing Law; Binding Effect; Waiver of Acceptance.

(a)

The governing law and related provisions set forth in Section 11.3 of the Loan Agreement (including, without limitation, any authorized agent provisions thereof, if applicable) are hereby incorporated by reference as if fully set forth herein (with Guarantor substituted in all places where Borrower appears thereunder) and shall be deemed fully applicable to Guarantor hereunder. Guarantor hereby certifies that it has received and reviewed the Loan Agreement (including, without limitation, Section 11.3 thereof).

(b)

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Guarantor arising hereunder shall be jointly and severally binding on each of the undersigned, and their respective heirs, personal representatives, successors and assigns, and the term “Guarantor” shall mean all of such Persons and each of them individually. Without limitation of any other term, provision or waiver contained herein, Guarantor hereby acknowledges and agrees that it has been furnished true, complete and correct copies of the Loan Documents and has reviewed the terms and provisions thereof (including, without limitation, the Guaranteed Obligations).

(c)

Guarantor hereby waives any acceptance of this Guaranty by Lender, and this Guaranty shall immediately be binding upon Guarantor.

5.4

Invalid Provisions. If any provision of this Guaranty is held to be illegal, invalid, or unenforceable under present or future laws effective during the term of this Guaranty, such provision shall be fully severable and this Guaranty shall be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part of this Guaranty, and the remaining provisions of this Guaranty shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision or by its severance from this Guaranty, unless such continued effectiveness of this Guaranty, as modified, would be contrary to the basic understandings and intentions of the parties as expressed herein.

5.5

Amendments. This Guaranty may be amended only by an instrument in writing executed by the party or an authorized representative of the party against whom such amendment is sought to be enforced.

5.6

Parties Bound; Assignment; Joint and Several. This Guaranty shall be binding upon and inure to the benefit of the parties hereto and their respective successors, assigns and legal representatives; provided, however, that Guarantor may not, without the prior written consent of Lender, assign any of its rights, powers, duties or obligations hereunder. If Guarantor consists of more than one Person or party, (a) the obligations and liabilities of each such Person or party hereunder shall be joint and several and (b) each Guarantor agrees to protect, indemnify, defend and hold Lender harmless from and against any loss, damage, claim, demand, cost or other liability (including, without limitation, attorneys’ fees and costs) Lender may suffer as a result of any dispute between or among one or more Guarantors and/or Borrower concerning the Guaranteed Obligations, including without limitation any Guarantor’s right to contribution or reimbursement from Borrower or any other Guarantor for payment of the Guaranteed Obligations.

5.7

Headings. Section headings are for convenience of reference only and shall in no way affect the interpretation of this Guaranty.

5.8

Recitals. The recital and introductory paragraphs hereof are a part hereof, form a basis for this Guaranty and shall be considered prima facie evidence of the facts and documents referred to therein.

5.9

Counterparts. This Guaranty may be executed in one or more counterparts, all of which taken together shall (upon execution and delivery by each party) constitute a single instrument. This Guaranty will become effective only when all parties to this Guaranty have executed a counterpart hereof. A photocopied, scanned, telecopied, or other electronic signature of any party to this Guaranty shall have the same force and effect as an original signature for all purposes

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5.10

Rights and Remedies. If Guarantor becomes liable for any indebtedness owing by Borrower to Lender, by endorsement or otherwise, other than under this Guaranty, such liability shall not be in any manner impaired or affected hereby and the rights of Lender hereunder shall be cumulative of any and all other rights that Lender may ever have against Guarantor. The exercise by Lender of any right or remedy hereunder or under any other instrument, or at law or in equity, shall not preclude the concurrent or subsequent exercise of any other right or remedy.

5.11

Entirety. THIS GUARANTY EMBODIES THE FINAL AND ENTIRE AGREEMENT OF GUARANTOR AND LENDER WITH RESPECT TO GUARANTOR’S GUARANTY OF THE GUARANTEED OBLIGATIONS AND SUPERSEDES ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS, AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING TO THE SUBJECT MATTER HEREOF. THIS GUARANTY IS INTENDED BY GUARANTOR AND LENDER AS A FINAL AND COMPLETE EXPRESSION OF THE TERMS OF THE GUARANTY, AND NO COURSE OF DEALING BETWEEN GUARANTOR AND LENDER, NO COURSE OF PERFORMANCE, NO TRADE PRACTICES, AND NO EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OR OTHER EXTRINSIC EVIDENCE OF ANY NATURE SHALL BE USED TO CONTRADICT, VARY, SUPPLEMENT OR MODIFY ANY TERM OF THIS GUARANTY. THERE ARE NO ORAL AGREEMENTS BETWEEN GUARANTOR AND LENDER.

5.12

Waiver of Right To Trial By Jury. GUARANTOR AND, BY ITS ACCEPTANCE HEREOF, LENDER, EACH HEREBY AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THIS GUARANTY, THE NOTE, THE LOAN AGREEMENT, THE MORTGAGE, OR THE OTHER LOAN DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY EACH OF GUARANTOR AND, BY ITS ACCEPTANCE HEREOF, LENDER, AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. EACH OF LENDER AND GUARANTOR IS HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY THE OTHER PARTY.

5.13

Reinstatement in Certain Circumstances. If at any time any payment of the principal of or interest under the Note or any other amount payable by the Borrower under the Loan Documents is rescinded or must be otherwise restored or returned upon the insolvency, bankruptcy or reorganization of the Borrower or otherwise, the Guarantor’s obligations hereunder with respect to such payment shall be reinstated as though such payment has been due but not made at such time.

5.14

Limitation on Liability; Survival. Notwithstanding anything to the contrary contained in this Guaranty, Guarantor shall not have any liability under this Guaranty for any acts or omissions

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which arise from and after the earlier to occur of the date (i) Guarantor shall no longer own any legal or beneficial interest in the Property following a foreclosure by Lender (or deed or other transfer in lieu of foreclosure accepted by Lender, in its sole discretion) on all of the collateral securing the Mortgage or (ii) the Debt is fully and finally paid, discharged and not subject to any bankruptcy preference period or any other disgorgement.

5.15

Change in Residency.

(a)

Jason Pollack hereby represents and warrants that he is a resident of the State of Colorado and that his primary domicile is in the State of Colorado. Jason Pollack shall not change his State of residence and/or primary domicile to a State that is a community property jurisdiction unless (i) if he is married at the time, he first (A) provides Lender at least ten (10) Business Days prior written notice thereof, and (B) causes his spouse to execute and deliver to Lender a spousal consent with respect to this Guaranty (which spousal consent shall be in form and substance satisfactory to Lender) (a “Spousal Consent”), and (ii) if he is not married at the time and subsequently marries, or if he enters into a new marriage, at any time when he is a resident (and/or has a primary domicile) in a community property jurisdiction, he causes his spouse to execute and deliver to Lender a Spousal Consent within ten (10) days after the occurrence of any such marriage. Jason Pollack’s failure to comply with any of the foregoing within five (5) Business Days of written notice from Lender, shall, at Lender’s option, constitute an “Event of Default” hereunder and under the Loan Agreement.

(b)

Frank Dellaglio hereby represents and warrants that he is a resident of the Commonwealth of Massachusetts and that his primary domicile is in the Commonwealth of Massachusetts. Frank Dellaglio shall not change his State of residence and/or primary domicile to a State that is a community property jurisdiction unless (i) if he is married at the time, he first (A) provides Lender at least ten (10) Business Days prior written notice thereof and (B) causes his spouse to execute and deliver to Lender a Spousal Consent and (ii) if he is not married at the time and subsequently marries, or if he enters into a new marriage, at any time when he is a resident (and/or has a primary domicile) in a community property jurisdiction, he causes his spouse to execute and deliver to Lender a Spousal Consent within ten (10) days after the occurrence of any such marriage. Frank Dellaglio’s failure to comply with any of the foregoing within five (5) Business Days of written notice from Lender, shall, at Lender’s option, constitute an “Event of Default” hereunder and under the Loan Agreement.

[NO FURTHER TEXT ON THIS PAGE]

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IN WITNESS WHEREOF, Guarantor has executed this Guaranty as of the date first above written.

GUARANTOR:


By:	/s/ Jason Pollack
Name:	Jason Pollack
Title:	An individual

GUARANTOR:


By:	/s/ Frank Dellaglio
Name:	Frank Dellaglio
Title:	An individual

ACRES REALTY FUNDING, INC., a Delaware corporation


By:	/s/ Jaclyn Jesberger
Name:	Jaclyn Jesberger
Title:	Vice President

Exhibit 10.2

COMPLETION GUARANTY AGREEMENT

THIS COMPLETION GUARANTY AGREEMENT (this “Guaranty”) is executed as of January 24, 2023, by JASON POLLACK, an individual, having an address at 4408 West 34th Avenue, Denver, Colorado 80212, FRANK DELLAGLIO, an individual, having an address at 11 Stoney Brook Road, Sherborn, Massachusetts 01770 and ACRES REALTY FUNDING, INC., a Delaware corporation, having an address at 390 RXR Plaza, Uniondale, New York 11556 (“ACRES”, together with Jason Pollack and Frank Dellaglio, individually or collectively, as the context may require, “Guarantor”), for the benefit of OCEANVIEW LIFE AND ANNUITY COMPANY, an Alabama corporation (together with its successors and assigns, “Lender”), having an address at c/o Oceanview Asset Management, 142 West 57th Street, 3rd Floor, New York, New York 10019.

W I T N E S S E T H :

WHEREAS, Guarantor is the owner of a direct or indirect interest in Borrower, and Guarantor will directly benefit from Lender’s making the Loan to Borrower; and

WHEREAS, capitalized terms used and not otherwise defined herein shall have the meanings ascribed to such terms in the Loan Agreement or that certain Guaranty Agreement dated as of the date hereof executed by Guarantor in favor of Lender.

ARTICLE I

NATURE AND SCOPE OF GUARANTY

1.1

Guaranty of Obligation. Guarantor hereby irrevocably and unconditionally guarantees to Lender the prompt and unconditional payment and performance of the Guaranteed Obligations as and when the same shall be due and payable, whether by lapse of time, by acceleration of maturity or otherwise. Guarantor hereby irrevocably and unconditionally covenants and agrees that it is liable for the Guaranteed Obligations as a primary obligor. As used herein, the term “Guaranteed Obligations” shall mean (a) the timely Completion of the Project in accordance with the Loan Agreement, including (i) keeping the Property free and clear of all Liens or claims of Liens arising or incurred in connection with the Completion of the Project, except as permitted by the Loan Documents (including the right to contest such Liens in accordance with the Loan Documents), (ii) the payment of all Hard Costs and Soft Costs (including, without

limitation, any Soft Cost reimbursements not covered pursuant to any Builder’s Risk insurance policy obtained by the Borrower in the event of a casualty to the Property prior to Completion) related to, and the obligations, liabilities and expenses incurred in connection with, the Completion of the Project, which, for the avoidance of doubt, shall include any cost overruns or increased costs, subject to the provisions of the Loan Documents, (iii) to pay for or fund all amounts that Borrower may be required to deposit with Lender as a Shortfall pursuant to the Loan Agreement so that the Loan remains in balance and (iv) without limiting clause (a)(i) above, the payment of all claims relating to the Completion of the Project before they become delinquent, subject to Borrower’s right to contest such claims in accordance with the Loan Documents, and (b) the payment of expenses to Lender pursuant to Section 1.7 below.

1.2

Nature of Guaranty.

(a)

This Guaranty is an irrevocable, absolute, continuing guaranty of payment and performance and not a guaranty of collection. This Guaranty may not be revoked by Guarantor and shall continue to be effective with respect to any Guaranteed Obligations arising or created after any attempted revocation by Guarantor and (if Guarantor is a natural person) after Guarantor’s death (in which event this Guaranty shall be binding upon Guarantor’s estate and Guarantor’s legal representatives and heirs). The fact that at any time or from time to time the Guaranteed Obligations may be increased or reduced shall not release or discharge the obligation of Guarantor to Lender with respect to the Guaranteed Obligations. This Guaranty may be enforced by Lender and any subsequent holder of the Note and shall not be discharged by the assignment or negotiation of all or part of the Note.

(b)

In the event that Lender shall have requested that Guarantor complete or cause the completion of the construction of the Improvements in accordance with the terms of the Loan Agreement, and in compliance with all applicable Legal Requirements, Permitted Encumbrances and Governmental Approvals and free and clear of all Liens, Guarantor shall be entitled to requisition and draw all the undisbursed portions of the Loan funds pursuant to the Project Budget (but not in excess of the Building Loan Amount) and subject to the terms of the Loan Agreement governing reallocations of budgeted Line Items and Lender shall disburse such Loan proceeds to Guarantor for the purpose of (and to the extent necessary for) completing the Improvements in accordance with the Plans and Specifications, provided that: (i) Guarantor shall then be performing the Guaranteed Obligations (including, without limitation, to pay for or fund all amounts that Borrower would be required to deposit with Lender as a Shortfall pursuant to the Loan Agreement so that the Loan remains in balance) or causing the performance of the same with due diligence; (ii) such disbursements of Loan proceeds to Guarantor shall be secured by the Mortgage with the same priority as all previous Additional Advances to Borrower; (iii) no additional Default or Event of Default shall have occurred and be continuing from and after the date demand has been made by Lender for Guarantor’s performance under this Guaranty; and (iv) Guarantor shall otherwise comply with the provisions of the Loan Agreement governing requisitions and disbursements of Loan proceeds. Notwithstanding the foregoing, in no event shall Guarantor be entitled to any disbursement of Loan proceeds pursuant to this Guaranty to pay for Soft Costs that are guaranteed pursuant to the Carry Guaranty. The provisions of this Section 1.2(b) shall not operate to limit Guarantor’s obligations under Section 1.1 hereof.

1.3

1.4

Payment By Guarantor. If all or any part of the Guaranteed Obligations shall not be punctually paid when due, whether at demand, maturity, acceleration or otherwise, Guarantor shall, within ten (10)

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Business Days following demand by Lender, and without presentment, protest, notice of protest, notice of non-payment, notice of intention to accelerate the maturity, notice of acceleration of the maturity, or any other notice whatsoever, pay in lawful money of the United States of America, the amount due on the Guaranteed Obligations to Lender at Lender’s address as set forth herein. Such demand(s) may be made at any time coincident with or after the time for payment of all or part of the Guaranteed Obligations, and may be made from time to time with respect to the same or different items of Guaranteed Obligations. Such demand shall be deemed made, given and received in accordance with the notice provisions hereof. Any moneys available to Lender for application on account of the Loan may be applied by Lender in such order and priority, in such amounts, at such time or times, and as to such portions of the Debt (including, without limitation, principal, interest, and other sums), as Lender may elect in its sole discretion from time to time.

1.5

No Duty To Pursue Others. It shall not be necessary for Lender (and Guarantor hereby waives any rights which Guarantor may have to require Lender), in order to enforce the obligations of Guarantor hereunder upon the occurrence and during the continuance of an Event of Default by Borrower with respect to the timely Completion of the Guaranteed Obligations (which shall include, for the avoidance of doubt, the failure to Complete the Project by the Completion Date in accordance with Section 4.1.31 of the Loan Agreement, first to (a) institute suit or exhaust its remedies against Borrower or others liable on the Loan or the Guaranteed Obligations or any other person, (b) enforce Lender’s rights against any collateral which shall ever have been given to secure the Loan, (c) enforce Lender’s rights against any other guarantors of the Guaranteed Obligations, (d) join Borrower or any others liable on the Guaranteed Obligations in any action seeking to enforce this Guaranty, (e) exhaust any remedies available to Lender against any collateral which shall ever have been given to secure the Loan, or (f) resort to any other means of obtaining payment of the Guaranteed Obligations. Lender shall not be required to mitigate damages or take any other action to reduce, collect or enforce the Guaranteed Obligations.

1.6

Waivers.

(a)

(b)

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Document (other than the Loan Agreement with respect to the Guaranteed Obligations) or arising under any law; (ii) any claim or defense that this Guaranty was made without consideration or is not supported by adequate consideration; (iii) the taking or accepting of any other security or guaranty for, or right of recourse with respect to, any or all of the Guaranteed Obligations; (iv) any homestead exemption or any other similar exemption under applicable Legal Requirements and Guarantor hereby waives the benefit of any such exemption as to the Guaranteed Obligations; (v) any release, surrender, abandonment, exchange, alteration, sale or other disposition, subordination, deterioration, waste, failure to protect or preserve, impairment, or loss of, or any failure to create or perfect any lien or security interest with respect to, or any other dealings with, any collateral or security at any time existing or purported, believed or expected to exist in connection with any or all of the Guaranteed Obligations, including any impairment of Guarantor’s recourse against any Person or collateral; (vi) whether express or by operation of law, any partial release of the liability of Guarantor hereunder, or if one or more other guaranties are now or hereafter obtained by Lender covering all or any part of the Guaranteed Obligations, any complete or partial release of any one or more of such guarantors under any such other guaranty, or any complete or partial release or settlement of Borrower or any other party liable, directly or indirectly, for the payment or performance of any or all of the Guaranteed Obligations; (vii) the death, insolvency, bankruptcy, disability, dissolution, liquidation, termination, receivership, reorganization, merger, consolidation, change of form, structure or ownership, sale of all assets, or lack of corporate, partnership or other power of Borrower or any other party at any time liable for the payment or performance of any or all of the Guaranteed Obligations; (viii) either with or without notice to or consent of Guarantor: any renewal, extension, modification or rearrangement of the terms of any or all of the Guaranteed Obligations and/or any of the Loan Documents; (ix) any neglect, lack of diligence, delay, omission, failure, or refusal of Lender to take or prosecute (or in taking or prosecuting) any action for the collection or enforcement of any of the Guaranteed Obligations, or to foreclose or take or prosecute any action to foreclose (or in foreclosing or taking or prosecuting any action to foreclose) upon any security therefor, or to exercise (or in exercising) any other right or power with respect to any security therefor, or to take or prosecute (or in taking or prosecuting) any action in connection with any Loan Document, or any failure to sell or otherwise dispose of in a commercially reasonable manner any collateral securing any or all of the Guaranteed Obligations; (x) any failure of Lender to notify Guarantor of any creation, renewal, extension, rearrangement, modification, supplement, subordination, or assignment of the Guaranteed Obligations or any part thereof, or of any Loan Document, or of any release of or change in any security, or of any other action taken or refrained from being taken by Lender against Borrower or any security or other recourse, or of any new agreement between Lender and Borrower, it being understood that Lender shall not be required to give Guarantor any notice of any kind under any circumstances with respect to or in connection with the Guaranteed Obligations, any and all rights to notice Guarantor may have otherwise had being hereby waived by Guarantor, and Guarantor shall be responsible for obtaining for itself information regarding Borrower, including, but not limited to, any changes in the business or financial condition of Borrower, and Guarantor acknowledges and agrees that Lender shall have no duty to notify Guarantor of any information which Lender may have concerning Borrower; (xi) if for any reason that Lender is required to refund any payment by Borrower to any other party liable for the payment or performance of any or all of the Guaranteed Obligations or pay the amount thereof to someone else; (xii) the making of advances by Lender to protect its interest in the Property, preserve the value of the Property or for the purpose of performing any term or covenant contained in any of the Loan Documents; (xiii) the existence of any claim, counterclaim, set off, recoupment, reduction or defense (excluding the defense of payment and performance of the Guaranteed Obligations) based upon any claim or other right that Guarantor may at any time have against Borrower, Lender, or any other Person, whether or not arising in connection with this Guaranty, the Note, the Loan Agreement, or any other Loan Document; (xiv) the unenforceability of all or any part of the Guaranteed Obligations against Borrower, whether because the Guaranteed Obligations exceed the amount permitted by law or violate any usury law, or because the act of creating the Guaranteed Obligations, or any part thereof, is ultra vires, or because the officers or Persons creating same acted in excess of their authority, or because of a lack of validity or enforceability of or defect or deficiency in any of the Loan Documents, or because Borrower has any valid defense, claim or offset

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with respect thereto, or because Borrower’s obligation ceases to exist by operation of law, or because of any other reason or circumstance, it being agreed that Guarantor shall remain liable hereon regardless of whether Borrower or any other Person be found not liable on the Guaranteed Obligations, or any part thereof, for any reason (and regardless of any joinder of Borrower or any other party in any action to obtain payment or performance of any or all of the Guaranteed Obligations); (xv) any order, ruling or plan of reorganization emanating from proceedings under any Creditors’ Rights Law (whether with respect to Borrower or any other Person), including any extension, reduction, composition, or other alteration of the Guaranteed Obligations, whether or not consented to by Lender; and/or (xvi) any partial or total transfer, pledge and/or reconstitution of the Property, Borrower and/or any direct or indirect owner of Borrower (regardless of whether the same is permitted under the Loan Documents).

(c)

This Guaranty shall be effective as a waiver of, and Guarantor hereby expressly waives, to the extent permitted by law,

(i)

(ii)

1.7

1.8

1.9

1.10

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as a result of any merger, reorganization, sale, transfer, devise, gift or bequest of Borrower or any interest in Borrower, and any successor owner of the Property.

1.11

Indemnification Procedures.

(a)

(b)

(c)

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(d)

1.12

1.13

Performance by Guarantor. Upon the occurrence and during the continuance of an Event of Default by Borrower with respect to the timely performance of the Guaranteed Obligations, Guarantor shall diligently pursue the Completion of the Project following written demand by Lender under this Guaranty.

1.14

Remedies. If Guarantor fails to commence performance of the Guaranteed Obligations within five (5) Business Days of Guarantor’s receipt of the written demand from Lender described in Section 1.13 above and to thereafter diligently pursue completion of the same, Lender shall have the following remedies, together with any other remedies under this Guaranty or at law or in equity:

(a)

at Lender’s option, and without any obligation to do so, Lender may proceed to perform on behalf of Guarantor any or all the Guaranteed Obligations hereunder and Guarantor shall, within five (5) Business Days after demand by Lender and whether or not such Guaranteed Obligations are actually completed by Lender, pay to Lender all reasonable out-of-pocket sums expended or incurred by any Lender in performing the Guaranteed Obligations, together with interest on such sum at the Default Rate if such sums are not paid by the fifth (5th) Business Day after Lender’s written demand; and

(b)

from time to time and without first requiring performance by Borrower or exhausting any or all security for the Loan (but subject to Section 1.13 hereof), to bring any action at law or in equity or both to compel Guarantor to perform its obligations hereunder.

ARTICLE II

EVENTS AND CIRCUMSTANCES NOT REDUCING
OR DISCHARGING GUARANTOR’S OBLIGATIONS

2.1

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2.2

Adjustment. Any adjustment, indulgence, forbearance or compromise that might be granted or given by Lender to Borrower or any Guarantor.

2.3

2.4

Invalidity of Guaranteed Obligations. The invalidity, illegality or unenforceability of all or any part of the Guaranteed Obligations, or any document or agreement executed in connection with the Guaranteed Obligations, for any reason whatsoever, including without limitation the fact that (a) the Guaranteed Obligations, or any part thereof, exceeds the amount permitted by law, (b) the act of creating the Guaranteed Obligations or any part thereof is ultra vires, (c) the officers or representatives executing the Note, the Loan Agreement or the other Loan Documents or otherwise creating the Guaranteed Obligations acted in excess of their authority, (d) the Guaranteed Obligations violate applicable usury laws, (e) the Borrower has valid defenses, claims or offsets (whether at law, in equity or by agreement) which render the Guaranteed Obligations wholly or partially uncollectible from Borrower, (f) the creation, performance or repayment of the Guaranteed Obligations (or the execution, delivery and performance of any document or instrument representing part of the Guaranteed Obligations or executed in connection with the Guaranteed Obligations, or given to secure the repayment of the Guaranteed Obligations) is illegal, uncollectible or unenforceable, or (g) the Note, the Loan Agreement or any of the other Loan Documents has been forged or otherwise is irregular or not genuine or authentic, it being agreed that Guarantor shall remain liable hereon regardless of whether Borrower or any other Person be found not liable on the Guaranteed Obligations or any part thereof for any reason.

2.5

2.6

Other Collateral. The taking or accepting of any other security, collateral or guaranty, or other assurance of payment, for all or any part of the Guaranteed Obligations.

2.7

2.8

-8-

foreclose upon any security therefor, or (c) to take or prosecute any action in connection with any instrument or agreement evidencing or securing all or any part of the Guaranteed Obligations.

2.9

2.10

2.11

Merger. The reorganization, merger or consolidation of Borrower into or with any other corporation or entity.

2.12

2.13

ARTICLE III

REPRESENTATIONS, WARRANTIES AND COVENANTS

To induce Lender to enter into the Loan Documents and extend credit to Borrower, Guarantor represents, warrants and covenants to Lender as follows:

3.1

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agreement, or any lease or other agreement or instrument, or subject to any restriction, which is likely to have a Material Adverse Effect; (e) Guarantor has filed all tax returns which are required to be filed (or obtained proper extensions of time for the filing thereof) and has paid, or made adequate provision for the payment of, all taxes which have or may become due pursuant to said returns or to assessments received (provided for purposes of clarification that ACRES is a disregarded entity for tax purposes and therefore is not required to and does not file any tax returns); (f) the financial statements and other information pertaining to Guarantor submitted to Lender are true, complete and correct in all material respects and do not contain any material misstatement of fact or omit to state a material fact or any fact necessary to make the statements contained therein not misleading; (g) there is no litigation, at law or in equity, or any proceeding before any federal, state, provincial or municipal board or other governmental or administrative agency pending or, to the knowledge of Guarantor, threatened, or any basis therefor, which involves a risk of any material judgment or liability not fully covered by insurance (other than any deductible) which is likely to be adversely determined and if so, would have a Material Adverse Effect, and no judgment, decree, or order of any federal, state, provincial or municipal court, board or other governmental or administrative agency has been issued against Guarantor which has a Material Adverse Effect; (h) the making of the Loan to Borrower will result in material benefits to Guarantor; (i) Guarantor (1) has not entered into this Guaranty or any Loan Document with the actual intent to hinder, delay, or defraud any creditor and (2) has received reasonably equivalent value in exchange for the Guaranteed Obligations hereunder and under the Loan Documents; (j) Guarantor is not a “foreign person” within the meaning of Section 1445(1)(3) of the Internal Revenue Code; and (k) each of the representations and covenants relating to Guarantor made by Borrower in any other Loan Documents is hereby re-made by Guarantor and incorporated herein by reference as if fully set forth herein.

3.2

3.3

3.4

No Representation By Lender. Neither Lender nor any other party has made any representation, warranty or statement to Guarantor in order to induce the Guarantor to execute this Guaranty.

3.5

3.6

Guarantor Financial Reporting, Net Worth and Liquidity.

(a)

Guarantor (i) shall keep and maintain complete and accurate books and records and (ii) shall permit Lender and any authorized representatives of Lender to have access to and to inspect, examine and make copies of the books and records, any and all accounts, data and other documents of Guarantor, at all reasonable times, during normal business hours, at Guarantor’s address for notices as set forth herein upon the giving of reasonable notice of such intent. Guarantor shall also provide to Lender, upon Lender’s reasonable request, such proofs of payments, costs, expenses, revenues and earnings, and other documentation as Lender may reasonably request, from time to time, and with such other information, in such detail as may reasonably be required by Lender; provided, however, in no event shall Lender

-10-

request or ACRES be required to furnish or cause to be furnished any audited financial statements or tax returns of ACRES.

(b)

(c)

(d)

Guarantor hereby makes the following additional affirmative covenants:

(i)

(ii)

3.7

3.8

Survival. All representations and warranties made by Guarantor herein shall survive the execution hereof for so long as the Loan shall remain outstanding.

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ARTICLE IV

SUBORDINATION OF CERTAIN INDEBTEDNESS

4.1

Subordination of All Guarantor Claims Against Borrower. Without limiting any restrictions on Borrower (including, without limitation, pursuant to Article V of the Loan Agreement), all of the Guarantor Claims shall be, and are hereby, deferred, postponed and subordinated to the prior payment in full of the Loan. Until payment in full of the Loan (and including interest accruing on the Note after the commencement of a proceeding by or against Borrower under any Creditors’ Rights Law, which interest the parties agree shall remain a claim that is prior and superior to any claim of Guarantor notwithstanding any contrary practice, custom or ruling), Guarantor agrees not to accept any payment or satisfaction of any Guarantor Claim. Effective upon the earlier to occur of the existence of any Guaranteed Obligations and any Event of Default, Guarantor hereby assigns all Guarantor Claims to Lender, including the right to file proof of claim and to vote thereon in connection with any such proceeding under any Creditors’ Rights Law, including the right to vote on any plan of reorganization. Further, if Guarantor shall comprise more than one Person, Guarantor agrees that until such payment in full of the Loan, (a) no one of them shall accept payment from the others by way of contribution on account of any payment made hereunder by such party to Lender, (b) no one of them will take any action to exercise or enforce any rights to such contribution, (c) if any Guarantor should receive any payment, satisfaction or security for any contribution by any other Guarantor for payment made hereunder by the recipient to Lender, the same shall be delivered to Lender in the form received, endorsed or assigned as may be appropriate for application on account of, or as security for, the Guaranteed Obligations and until so delivered, shall be held in trust for Lender as security for the Guaranteed Obligations, and (d) if any Guarantor should receive any payment, satisfaction or security for any Guarantor Claim, the same shall be delivered to Lender in the form received, endorsed or assigned as may be appropriate for application on account of, or as security for, the Loan and until so delivered, shall be held in trust for Lender as security for the Loan. As used herein, the term “Guarantor Claims” shall mean all debts and liabilities of Borrower to Guarantor, whether such debts and liabilities now exist or are hereafter incurred or arise, or whether the obligations of Borrower thereon be direct, contingent, primary, secondary, several, joint and several, or otherwise, and irrespective of whether such debts or liabilities be evidenced by note, contract, open account, or otherwise, and irrespective of the Person in whose favor such debts or liabilities may, at their inception, have been, or may hereafter be created, or the manner in which they have been or may hereafter be acquired by Guarantor. The Guarantor Claims shall include without limitation all rights and claims of Guarantor against Borrower (arising as a result of subrogation or otherwise) as a result of Guarantor’s payment of all or a portion of the Guaranteed Obligations.

4.2

4.3

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Guarantor agrees to hold in trust for Lender an amount equal to the amount of all funds, payments, claims or distributions so received, and agrees that it shall have absolutely no dominion over the amount of such funds, payments, claims or distributions so received except to pay them promptly to Lender, and Guarantor covenants promptly to pay the same to Lender.

4.4

ARTICLE V

MISCELLANEOUS

5.1

5.2

Guarantor: Jason Pollack
4408 West 34th Avenue
Denver, Colorado 80212

Frank Dellaglio
11 Stoney Brook Road
Sherborn, Massachusetts 01770

ACRES Realty Funding, Inc.
c/o ACRES Capital, LLC
390 RXR Plaza
Uniondale, New York 11556
Attention: Jaclyn A. Jesberger, General Counsel

-13-

And to: Greenberg Traurig, LLP
One International Place
Boston, Massachusetts 02110
Attn: Dina E. Conlin

Murland Dainoff LLC
651 E. Township Line Road, #1055
Blue Bell, PA 19422
Attn: Brian L. Murland

If to Lender: Oceanview Life and Annuity Company
Attention: Matthew Phillip
c/o Oceanview Asset Management
142 West 57th Street, 3rd Floor
New York, New York 10019

Oceanview Life and Annuity Company
Attention: Marnie Adams
c/o Oceanview Asset Management
142 West 57th Street, 3rd Floor
New York, New York 10019

And to: Cadwalader, Wickersham & Taft LLP
650 South Tryon Street
Charlotte, North Carolina 28202
Attention: Christopher Dickson, Esq.

5.3

Governing Law; Binding Effect; Waiver of Acceptance.

(a)

(b)

This Guaranty is binding not only on Guarantor, but also on Guarantor’s heirs, personal representatives, successors and assigns. Upon the death of Guarantor, if Guarantor is a natural person, this Guaranty shall continue against Guarantor’s estate as to all of the Guaranteed Obligations, including that portion incurred or arising after the death of Guarantor and shall be provable in full against Guarantor’s estate, whether or not the Guaranteed Obligations are then due and payable. If this Guaranty is signed by more than one Person, then all of the obligations of Guarantor arising hereunder shall be jointly and severally binding on each of the undersigned, and their respective heirs, personal representatives, successors and assigns, and the term “Guarantor” shall mean all of such Persons and each of them individually. Without limitation of any other term, provision or waiver contained herein, Guarantor hereby acknowledges and agrees that it has been furnished true, complete and correct copies of the Loan Documents and has reviewed the terms and provisions thereof (including, without limitation, the Guaranteed Obligations).

(c)

Guarantor hereby waives any acceptance of this Guaranty by Lender, and this Guaranty shall immediately be binding upon Guarantor.

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5.4

5.5

Amendments. This Guaranty may be amended only by an instrument in writing executed by the party or an authorized representative of the party against whom such amendment is sought to be enforced.

5.6

5.7

Headings. Section headings are for convenience of reference only and shall in no way affect the interpretation of this Guaranty.

5.8

Recitals. The recital and introductory paragraphs hereof are a part hereof, form a basis for this Guaranty and shall be considered prima facie evidence of the facts and documents referred to therein.

5.9

5.10

5.11

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CONTRADICT, VARY, SUPPLEMENT OR MODIFY ANY TERM OF THIS GUARANTY. THERE ARE NO ORAL AGREEMENTS BETWEEN GUARANTOR AND LENDER.

5.12

5.13

5.14

Change in Residency.

(a)

(b)

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domicile) in a community property jurisdiction, he causes his spouse to execute and deliver to Lender a Spousal Consent within ten (10) days after the occurrence of any such marriage. Frank Dellaglio’s failure to comply with any of the foregoing within five (5) Business Days of written notice from Lender, shall, at Lender’s option, constitute an “Event of Default” hereunder and under the Loan Agreement.

[NO FURTHER TEXT ON THIS PAGE]

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IN WITNESS WHEREOF, Guarantor has executed this Guaranty as of the date first above written.

GUARANTOR:


By:	/s/ Jason Pollack
Name:	Jason Pollack
Title:	An individual

GUARANTOR:


By:	/s/ Frank Dellaglio
Name:	Frank Dellaglio
Title:	An individual

ACRES REALTY FUNDING, INC., a Delaware corporation


By:	/s/ Jaclyn Jesberger
Name:	Jaclyn Jesberger
Title:	Vice President

Exhibit 10.3

CARRY GUARANTY AGREEMENT

THIS CARRY GUARANTY AGREEMENT (this “Guaranty”) is executed as of January 24, 2023, by JASON POLLACK, an individual, having an address at 4408 West 34th Avenue, Denver, Colorado 80212, FRANK DELLAGLIO, an individual, having an address at 11 Stoney Brook Road, Sherborn, Massachusetts 01770 and ACRES REALTY FUNDING, INC., a Delaware corporation, having an address at 390 RXR Plaza, Uniondale, New York 11556 (“ACRES”, together with Jason Pollack and Frank Dellaglio, individually or collectively, as the context may require, “Guarantor”), for the benefit of OCEANVIEW LIFE AND ANNUITY COMPANY, an Alabama corporation (together with its successors and assigns, “Lender”), having an address at c/o Oceanview Asset Management, 142 West 57th Street, 3rd Floor, New York, New York 10019.

W I T N E S S E T H :

WHEREAS, Guarantor is the owner of a direct or indirect interest in Borrower, and Guarantor will directly benefit from Lender’s making the Loan to Borrower; and

ARTICLE I

NATURE AND SCOPE OF GUARANTY

1.1

liable for the Guaranteed Obligations as a primary obligor. As used herein, the term “Guaranteed Obligations” shall mean the prompt and unconditional payment by Borrower of all customary or necessary costs and expenses incurred in connection with the operation, maintenance and management of the Property, including, without limitation, Debt Service, Insurance Premiums, Taxes and Other Charges, utilities, repair, replacement and all other maintenance costs and expenses, equipment lease payments, management fees, professional fees, accounting fees, advertising expenses, salaries, fringe and other benefits due to all employees engaged in the operation, maintenance or management of the Property, payroll and related Taxes and any and all other Operating Expenses, when due until the earlier of (i) the date of a sale of the Property pursuant to a foreclosure of the Mortgage, (ii) twelve (12) months following the date on which a deed-in-lieu of foreclosure has been voluntarily accepted by Lender (provided that Lender shall have no obligation to accept such deed-in-lieu of foreclosure and (iii) Stabilization (such earlier date, the “Termination Date”). Notwithstanding anything to the contrary contained herein, so long as no Event of Default has occurred with respect to any payment obligation of Guarantor hereunder or under the Environmental Indemnity and any of the other Guaranties and no other Event of Default then exists under the Loan Documents (other than the failure to pay the sums which are Guaranteed Obligations hereunder by Borrower), Guarantor shall be entitled to a credit against, and shall be deemed to have satisfied, the Guaranteed Obligations, to the extent of the sum of all then unadvanced Additional Advances), but only to the extent that the costs of such Guaranteed Obligations due and payable at the time in question were specifically set forth in the Project Budget and are allocable to the payment of Operating Expenses, Insurance Premiums, Taxes and Other Charges, and Debt Service. For the avoidance of doubt, it is acknowledged and agreed that (A) the application of any credit pursuant to this Section 1.1 against the Guaranteed Obligations shall reduce the funds available to be applied as credits under Section 1.1 and available to be borrowed by the Borrower pursuant to the Loan Agreement on a dollar for dollar basis and (B) the amount of any credits provided to Guarantor on account of unadvanced Additional Advances under Section 1.1 shall, to the extent that funds of Lender in the amount of such credits are actually expended by Lender, be deemed to constitute additional principal borrowed under the Loan Agreement and shall constitute Debt, in each case, for all purposes hereunder and under the Loan Documents. For the avoidance of doubt, no amounts credited hereunder shall be available to Guarantor pursuant to Section 1.2(b) of the Completion Guaranty.

1.2

1.3

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Obligations), against Lender or against payment of the Guaranteed Obligations, whether such offset, claim or defense arises in connection with the Guaranteed Obligations (or the transactions creating the Guaranteed Obligations) or otherwise.

1.4

1.5

1.6

Waivers.

(a)

Guarantor agrees to the provisions of the Loan Documents, and hereby waives , to the extent permitted by law, notice of (i) any loans or advances made by Lender to Borrower, (ii) acceptance of this Guaranty, (iii) any amendment or extension of the Note, the Loan Agreement or of any other Loan Documents, (iv) the execution and delivery by Borrower and Lender of any other loan or credit agreement or of Borrower’s execution and delivery of any promissory notes or other documents arising under the Loan Documents or in connection with the Property, (v) the occurrence of any breach by Borrower or an Event of Default, (vi) Lender’s transfer or disposition of the Guaranteed Obligations, or any part thereof, (vii) sale or foreclosure (or posting or advertising for sale or foreclosure) of any collateral for the Guaranteed Obligations, (viii) protest, proof of non-payment or default by Borrower, and (ix) any other action at any time taken or omitted by Lender, and, generally, all demands and notices of every kind in connection with this Guaranty, the Loan Documents, or any documents or agreements evidencing, securing or relating to any of the Guaranteed Obligations. Notwithstanding the foregoing or anything to the contrary contained in this Guaranty, Guarantor does not waive the right to receive any notices from Lender to the

-3-

extent such notices are expressly required to be given by Lender under the Loan Documents but the failure to provide such notices shall not give rise to any defenses by Guarantor hereunder or otherwise limit Lender’s rights hereunder (other than to the extent any grace periods under the Loan Documents are extended as a result thereof).

(b)

Guarantor hereby agrees that neither Lender’s rights or remedies nor Guarantor’s obligations under the terms of this Guaranty shall be released, diminished, impaired, reduced or affected by any one or more of the following events, actions, facts, or circumstances, and the liability of Guarantor under this Guaranty shall be absolute and unconditional irrespective of (and Guarantor hereby waives, to the extent permitted by law, any rights or protections related to): (i) any limitation of liability or recourse in any other Loan Document (other than the Loan Agreement with respect to the Guaranteed Obligations) or arising under any law; (ii) any claim or defense that this Guaranty was made without consideration or is not supported by adequate consideration; (iii) the taking or accepting of any other security or guaranty for, or right of recourse with respect to, any or all of the Guaranteed Obligations; (iv) any homestead exemption or any other similar exemption under applicable Legal Requirements and Guarantor hereby waives the benefit of any such exemption as to the Guaranteed Obligations; (v) any release, surrender, abandonment, exchange, alteration, sale or other disposition, subordination, deterioration, waste, failure to protect or preserve, impairment, or loss of, or any failure to create or perfect any lien or security interest with respect to, or any other dealings with, any collateral or security at any time existing or purported, believed or expected to exist in connection with any or all of the Guaranteed Obligations, including any impairment of Guarantor’s recourse against any Person or collateral; (vi) whether express or by operation of law, any partial release of the liability of Guarantor hereunder, or if one or more other guaranties are now or hereafter obtained by Lender covering all or any part of the Guaranteed Obligations, any complete or partial release of any one or more of such guarantors under any such other guaranty, or any complete or partial release or settlement of Borrower or any other party liable, directly or indirectly, for the payment or performance of any or all of the Guaranteed Obligations; (vii) the death, insolvency, bankruptcy, disability, dissolution, liquidation, termination, receivership, reorganization, merger, consolidation, change of form, structure or ownership, sale of all assets, or lack of corporate, partnership or other power of Borrower or any other party at any time liable for the payment or performance of any or all of the Guaranteed Obligations; (viii) either with or without notice to or consent of Guarantor: any renewal, extension, modification or rearrangement of the terms of any or all of the Guaranteed Obligations and/or any of the Loan Documents; (ix) any neglect, lack of diligence, delay, omission, failure, or refusal of Lender to take or prosecute (or in taking or prosecuting) any action for the collection or enforcement of any of the Guaranteed Obligations, or to foreclose or take or prosecute any action to foreclose (or in foreclosing or taking or prosecuting any action to foreclose) upon any security therefor, or to exercise (or in exercising) any other right or power with respect to any security therefor, or to take or prosecute (or in taking or prosecuting) any action in connection with any Loan Document, or any failure to sell or otherwise dispose of in a commercially reasonable manner any collateral securing any or all of the Guaranteed Obligations; (x) any failure of Lender to notify Guarantor of any creation, renewal, extension, rearrangement, modification, supplement, subordination, or assignment of the Guaranteed Obligations or any part thereof, or of any Loan Document, or of any release of or change in any security, or of any other action taken or refrained from being taken by Lender against Borrower or any security or other recourse, or of any new agreement between Lender and Borrower, it being understood that Lender shall not be required to give Guarantor any notice of any kind under any circumstances with respect to or in connection

-4-

with the Guaranteed Obligations, any and all rights to notice Guarantor may have otherwise had being hereby waived by Guarantor, and Guarantor shall be responsible for obtaining for itself information regarding Borrower, including, but not limited to, any changes in the business or financial condition of Borrower, and Guarantor acknowledges and agrees that Lender shall have no duty to notify Guarantor of any information which Lender may have concerning Borrower; (xi) if for any reason that Lender is required to refund any payment by Borrower to any other party liable for the payment or performance of any or all of the Guaranteed Obligations or pay the amount thereof to someone else; (xii) the making of advances by Lender to protect its interest in the Property, preserve the value of the Property or for the purpose of performing any term or covenant contained in any of the Loan Documents; (xiii) the existence of any claim, counterclaim, set off, recoupment, reduction or defense (excluding the defense of payment and performance of the Guaranteed Obligations) based upon any claim or other right that Guarantor may at any time have against Borrower, Lender, or any other Person, whether or not arising in connection with this Guaranty, the Note, the Loan Agreement, or any other Loan Document; (xiv) the unenforceability of all or any part of the Guaranteed Obligations against Borrower, whether because the Guaranteed Obligations exceed the amount permitted by law or violate any usury law, or because the act of creating the Guaranteed Obligations, or any part thereof, is ultra vires, or because the officers or Persons creating same acted in excess of their authority, or because of a lack of validity or enforceability of or defect or deficiency in any of the Loan Documents, or because Borrower has any valid defense, claim or offset with respect thereto, or because Borrower’s obligation ceases to exist by operation of law, or because of any other reason or circumstance, it being agreed that Guarantor shall remain liable hereon regardless of whether Borrower or any other Person be found not liable on the Guaranteed Obligations, or any part thereof, for any reason (and regardless of any joinder of Borrower or any other party in any action to obtain payment or performance of any or all of the Guaranteed Obligations); (xv) any order, ruling or plan of reorganization emanating from proceedings under any Creditors’ Rights Law (whether with respect to Borrower or any other Person), including any extension, reduction, composition, or other alteration of the Guaranteed Obligations, whether or not consented to by Lender; and/or (xvi) any partial or total transfer, pledge and/or reconstitution of the Property, Borrower and/or any direct or indirect owner of Borrower (regardless of whether the same is permitted under the Loan Documents).

(c)

This Guaranty shall be effective as a waiver of, and Guarantor hereby expressly waives, to the extent permitted by law:

(i)

(ii)

1.7

-5-

incurred by Lender in the collection of the Guaranteed Obligations, the enforcement of this Guaranty and/or the preservation of Lender’s rights hereunder. The covenant contained in this Section shall survive the payment and performance of the Guaranteed Obligations until the Termination Date.

1.8

1.9

1.10

1.11

Indemnification Procedures.

(a)

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sole option and election, defend or settle such claim, loss or liability. The liability of Guarantor to Lender hereunder shall be conclusively established by such settlement, provided such settlement is made in good faith, the amount of such liability to include both the settlement consideration and the costs and expenses, including, without limitation, reasonable attorneys’ fees and disbursements, incurred by Lender in effecting such settlement. In such event, such settlement consideration and out-of-pocket costs and expenses shall be included in the Guaranteed Obligations and Guarantor shall pay the same as hereinafter provided. Lender’s good faith in any such settlement shall be conclusively established if the settlement is made on the advice of independent legal counsel for Lender.

(b)

(c)

(d)

1.12

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ARTICLE II

EVENTS AND CIRCUMSTANCES NOT REDUCING
OR DISCHARGING GUARANTOR’S OBLIGATIONS

2.1

2.2

Adjustment. Any adjustment, indulgence, forbearance or compromise that might be granted or given by Lender to Borrower or any Guarantor.

2.3

2.4

2.5

Release of Obligors. Any full or partial release of the liability of Borrower on the Guaranteed Obligations, or any part thereof, or of any co-guarantors, or any other person or entity

-8-

now or hereafter liable, whether directly or indirectly, jointly, severally, or jointly and severally, to pay, perform, guarantee or assure the payment of the Guaranteed Obligations, or any part thereof, it being recognized, acknowledged and agreed by Guarantor that Guarantor may be required to pay the Guaranteed Obligations in full without assistance or support of any other party, and Guarantor has not been induced to enter into this Guaranty on the basis of a contemplation, belief, understanding or agreement that other Persons will be liable to pay or perform the Guaranteed Obligations, or that Lender will look to other Persons to pay or perform the Guaranteed Obligations.

2.6

Other Collateral. The taking or accepting of any other security, collateral or guaranty, or other assurance of payment, for all or any part of the Guaranteed Obligations.

2.7

2.8

2.9

2.10

2.11

Merger. The reorganization, merger or consolidation of Borrower into or with any other corporation or entity.

2.12

2.13

Other Actions Taken or Omitted. Any other action taken or omitted to be taken with respect to the Loan Documents, the Guaranteed Obligations, or the security and collateral therefor,

-9-

whether or not such action or omission prejudices Guarantor or increases the likelihood that Guarantor will be required to pay the Guaranteed Obligations pursuant to the terms hereof, it is the unambiguous and unequivocal intention of Guarantor that Guarantor shall be obligated to pay the Guaranteed Obligations when due, notwithstanding any occurrence, circumstance, event, action, or omission whatsoever, whether contemplated or uncontemplated, and whether or not otherwise or particularly described herein, which obligation shall be deemed satisfied only upon the full and final payment and satisfaction of the Guaranteed Obligations.

ARTICLE III

REPRESENTATIONS, WARRANTIES AND COVENANTS

To induce Lender to enter into the Loan Documents and extend credit to Borrower, Guarantor represents, warrants and covenants to Lender as follows:

3.1

General. Guarantor hereby makes the following representations, warranties and covenants (each of which shall remain materially true and correct during the term hereof): (a) if Guarantor is other than a natural person, Guarantor is duly organized, validly existing and in good standing under the laws of its state of formation, and Guarantor has all requisite right and power to execute and deliver this Guaranty and to perform the Guaranteed Obligations; (b) the execution, delivery and performance of this Guaranty and the incurrence of the Guaranteed Obligations, now or hereafter owing, and the creation of liens on Guarantor’s assets (i) are within the powers of Guarantor (if Guarantor is other than a natural person), and (ii) do not require any approval or consent of, or filing with, any governmental authority or other Person (or such approvals and consents have been obtained and delivered to the Lender) and are not in contravention of any provision of law applicable to Guarantor; (c) this Guaranty and the other Loan Documents to which Guarantor is a party constitutes when delivered, valid and binding obligations of Guarantor, enforceable in accordance with their respective terms; (d) Guarantor is not a party to any indenture, loan or credit agreement, or any lease or other agreement or instrument, or subject to any restriction, which is likely to have a Material Adverse Effect; (e) Guarantor has filed all tax returns which are required to be filed (or obtained proper extensions of time for the filing thereof) and has paid, or made adequate provision for the payment of, all taxes which have or may become due pursuant to said returns or to assessments received (provided for purposes of clarification that ACRES is a disregarded entity for tax purposes and therefore is not required to and does not file any tax returns); (f) the financial statements and other information pertaining to Guarantor submitted to Lender are true, complete and correct in all material respects and do not contain any material misstatement of fact or omit to state a material fact or any fact necessary to make the statements contained therein not misleading; (g) there is no litigation, at law or in equity, or any proceeding before any federal, state, provincial or municipal board or other governmental or administrative agency pending or, to the knowledge of Guarantor, threatened, or any basis therefor, which involves a risk of any material judgment or liability not fully covered by insurance (other than any deductible) which is likely to be adversely determined and if so, would have a Material Adverse Effect, and no judgment, decree, or order of any federal, state, provincial or municipal court, board or other governmental or administrative agency has been issued against Guarantor which has a Material Adverse Effect; (h) the making of the Loan to Borrower will result in material benefits to Guarantor; (i) Guarantor (1) has not entered into this Guaranty or any Loan Document with the actual intent to hinder, delay, or defraud any creditor and (2) has received reasonably

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equivalent value in exchange for the Guaranteed Obligations hereunder and under the Loan Documents; (j) Guarantor is not a “foreign person” within the meaning of Section 1445(1)(3) of the Internal Revenue Code; and (k) each of the representations and covenants relating to Guarantor made by Borrower in any other Loan Documents is hereby re-made by Guarantor and incorporated herein by reference as if fully set forth herein.

3.2

3.3

3.4

No Representation By Lender. Neither Lender nor any other party has made any representation, warranty or statement to Guarantor in order to induce the Guarantor to execute this Guaranty.

3.5

3.6

Guarantor Financial Reporting, Net Worth and Liquidity.

(a)

(b)

(c)

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of net worth and contingent liabilities. All such financial statements shall be certified by Guarantor to Lender as true and correct in all material respects, and shall contain such backup and/or supporting information as may be reasonably requested by Lender. In addition, Guarantor shall promptly furnish to Lender any other financial information reasonably requested by Lender from time to time in respect of Guarantor; provided, however, in no event shall Lender request or ACRES be required to furnish or cause to be furnished any audited financial statements or tax returns of ACRES.

(d)

Guarantor hereby makes the following additional affirmative covenants:

(i)

(ii)

3.7

3.8

Survival. All representations and warranties made by Guarantor herein shall survive the execution hereof for so long as the Loan shall remain outstanding.

ARTICLE IV

SUBORDINATION OF CERTAIN INDEBTEDNESS

4.1

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including interest accruing on the Note after the commencement of a proceeding by or against Borrower under any Creditors’ Rights Law, which interest the parties agree shall remain a claim that is prior and superior to any claim of Guarantor notwithstanding any contrary practice, custom or ruling), Guarantor agrees not to accept any payment or satisfaction of any Guarantor Claim. Effective upon the earlier to occur of the existence of any Guaranteed Obligations and any Event of Default, Guarantor hereby assigns all Guarantor Claims to Lender, including the right to file proof of claim and to vote thereon in connection with any such proceeding under any Creditors’ Rights Law, including the right to vote on any plan of reorganization. Further, if Guarantor shall comprise more than one Person, Guarantor agrees that until such payment in full of the Loan, (a) no one of them shall accept payment from the others by way of contribution on account of any payment made hereunder by such party to Lender, (b) no one of them will take any action to exercise or enforce any rights to such contribution, (c) if any Guarantor should receive any payment, satisfaction or security for any contribution by any other Guarantor for payment made hereunder by the recipient to Lender, the same shall be delivered to Lender in the form received, endorsed or assigned as may be appropriate for application on account of, or as security for, the Guaranteed Obligations and until so delivered, shall be held in trust for Lender as security for the Guaranteed Obligations, and (d) if any Guarantor should receive any payment, satisfaction or security for any Guarantor Claim, the same shall be delivered to Lender in the form received, endorsed or assigned as may be appropriate for application on account of, or as security for, the Loan and until so delivered, shall be held in trust for Lender as security for the Loan. As used herein, the term “Guarantor Claims” shall mean all debts and liabilities of Borrower to Guarantor, whether such debts and liabilities now exist or are hereafter incurred or arise, or whether the obligations of Borrower thereon be direct, contingent, primary, secondary, several, joint and several, or otherwise, and irrespective of whether such debts or liabilities be evidenced by note, contract, open account, or otherwise, and irrespective of the Person in whose favor such debts or liabilities may, at their inception, have been, or may hereafter be created, or the manner in which they have been or may hereafter be acquired by Guarantor. The Guarantor Claims shall include without limitation all rights and claims of Guarantor against Borrower (arising as a result of subrogation or otherwise) as a result of Guarantor’s payment of all or a portion of the Guaranteed Obligations.

4.2

4.3

Payments Held in Trust. In the event that, notwithstanding anything to the contrary in this Guaranty, Guarantor should receive any funds, payment, claim or distribution which is prohibited

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by this Guaranty, Guarantor agrees to hold in trust for Lender an amount equal to the amount of all funds, payments, claims or distributions so received, and agrees that it shall have absolutely no dominion over the amount of such funds, payments, claims or distributions so received except to pay them promptly to Lender, and Guarantor covenants promptly to pay the same to Lender.

4.4

ARTICLE V

MISCELLANEOUS

5.1

5.2

Guarantor: Jason Pollack
4408 West 34th Avenue
Denver, Colorado 80212

Frank Dellaglio
11 Stoney Brook Road
Sherborn, Massachusetts 01770

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ACRES Realty Funding, Inc.
c/o ACRES Capital, LLC
390 RXR Plaza
Uniondale, New York 11556
Attention: Jaclyn A. Jesberger, General Counsel

And to: Greenberg Traurig, LLP
One International Place
Boston, Massachusetts 02110
Attn: Dina E. Conlin

Murland Dainoff LLC
651 E. Township Line Road, #1055
Blue Bell, PA 19422
Attn: Brian L. Murland

If to Lender: Oceanview Life and Annuity Company
Attention: Matthew Phillip
c/o Oceanview Asset Management
142 West 57th Street, 3rd Floor
New York, New York 10019

Oceanview Life and Annuity Company
Attention: Marnie Adams
c/o Oceanview Asset Management
142 West 57th Street, 3rd Floor
New York, New York 10019

And to: Cadwalader, Wickersham & Taft LLP
650 South Tryon Street
Charlotte, North Carolina 28202
Attention: Christopher Dickson, Esq.

5.3

Governing Law; Binding Effect; Waiver of Acceptance.

(a)

(b)

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(c)

Guarantor hereby waives any acceptance of this Guaranty by Lender, and this Guaranty shall immediately be binding upon Guarantor.

5.4

5.5

Amendments. This Guaranty may be amended only by an instrument in writing executed by the party or an authorized representative of the party against whom such amendment is sought to be enforced.

5.6

5.7

Headings. Section headings are for convenience of reference only and shall in no way affect the interpretation of this Guaranty.

5.8

Recitals. The recital and introductory paragraphs hereof are a part hereof, form a basis for this Guaranty and shall be considered prima facie evidence of the facts and documents referred to therein.

5.9

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5.10

5.11

5.12

5.13

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5.14

Change in Residency.

(a)

(b)

[NO FURTHER TEXT ON THIS PAGE]

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IN WITNESS WHEREOF, Guarantor has executed this Guaranty as of the date first above written.

GUARANTOR:


By:	/s/ Jason Pollack
Name:	Jason Pollack
Title:	An individual

GUARANTOR:


By:	/s/ Frank Dellaglio
Name:	Frank Dellaglio
Title:	An individual

ACRES REALTY FUNDING, INC., a Delaware corporation


By:	/s/ Jaclyn Jesberger
Name:	Jaclyn Jesberger
Title:	Vice President

Exhibit 10.4

ENVIRONMENTAL INDEMNITY AGREEMENT

THIS ENVIRONMENTAL INDEMNITY AGREEMENT (this “Agreement”) is made as of the 24th day of January, 2023, by CHAPEL DRIVE EAST, LLC, a Delaware limited liability company, having an address at c/o Charles Street Partners, 1331 17th Street, Suite M-100, Denver, Colorado 80202 (“Borrower”) and JASON POLLACK, an individual, having an address at 4408 West 34th Avenue, Denver, Colorado 80212, FRANK DELLAGLIO, an individual, having an address at 11 Stoney Brook Road, Sherborn, Massachusetts 01770, and ACRES REALTY FUNDING, INC., a Delaware corporation, having an address at 390 RXR Plaza, Uniondale, New York 11556 (“ACRES”, together with Jason Pollack and Frank Dellaglio, individually or collectively, as the context may require, “Principal”; Borrower and Principal being referred to individually and collectively, as the context indicates, as “Indemnitor”), jointly and severally, in favor of OCEANVIEW LIFE AND ANNUITY COMPANY, an Alabama corporation (together with its successors and assigns, “Indemnitee”), having an address at c/o Oceanview Asset Management, 142 West 57th Street, 3rd Floor, New York, New York 10019, and for the benefit of the other Indemnified Parties (defined below).

RECITALS:

WHEREAS, reference is made to that certain Building Loan Agreement of even date herewith between Borrower and Indemnitee (as the same may be amended, restated, replaced, supplemented, renewed, extended or otherwise modified from time to time, the “Loan Agreement”; capitalized terms used herein without definition shall have the respective meanings attributed thereto in the Loan Agreement);

WHEREAS, Indemnitee is not willing to make the Loan, or otherwise extend credit, to Borrower unless Indemnitor agrees to provide the indemnification, representations, warranties, covenants and other matters described in this Agreement for the benefit of the Indemnified Parties;

WHEREAS, Principal is the owner of a direct or indirect interest in Borrower, and Principal will directly benefit from Borrower obtaining the Loan; and

WHEREAS, capitalized terms used and not otherwise defined herein shall have the meanings ascribed to such terms in the Loan Agreement.

NOW, THEREFORE, as an inducement to Indemnitee to make the Loan to Borrower, and for Ten Dollars ($10.00) and other good and valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged, Indemnitor hereby jointly and severally represents, warrants, covenants and agrees for the benefit of Indemnitee and each of the Indemnified Parties as follows:

Environmental Representations and Warranties. Indemnitor hereby represents and warrants that, to Indemnitor’s Actual Knowledge as of the date set forth above, except as otherwise disclosed by that certain Phase I environmental report (together with all supplements thereto and/or Phase II environmental reports, if any, required by Indemnitee) with respect to the Property

prepared at the direction of Indemnitee in connection with the origination of the Loan (hereinafter referred to as the “Environmental Report”):

(a)

there are no Hazardous Substances (defined below) or underground storage tanks in, on, or under the Property, or known to be migrating to or from the Property, in each case except those that are both (i) in compliance with all Environmental Laws (defined below) and with any permits issued pursuant thereto and (ii) fully disclosed to Indemnitee in writing pursuant to the Environmental Report;

(b)

there are no past, present or threatened Releases (defined below) of Hazardous Substances in, on, or under the Property in violation of Environmental Law, or known to be migrating to or from the Property in violation of Environmental Law, in each case which have not been fully remediated in accordance with Environmental Law;

(c)

(d)

there is no past or present non-compliance with Environmental Laws, or with any permits issued pursuant thereto, in connection with the Property which has not been fully remediated in accordance with Environmental Law;

(e)

Indemnitor does not know of, and has not received, any written or oral notice or other communication from any Person (including but not limited to a Governmental Authority) relating to Hazardous Substances or Remediation (defined below) thereof, of possible liability of any Person pursuant to any Environmental Law in connection with the Property, or any actual or potential administrative or judicial proceedings in connection with any of the foregoing; and

(f)

Indemnitor has truthfully disclosed to Indemnitee, in writing, any and all information relating to conditions in, on, under or from the Property that is known to Indemnitor and has provided to Indemnitee all information that is contained in files and records of Indemnitor, including but not limited to any reports relating to Hazardous Substances in, on, under or from the Property and/or to the environmental condition of the Property.

Environmental Covenants. Indemnitor covenants and agrees and warrants as follows:

(a)

all uses and operations on or of the Property by Indemnitor shall be in compliance with all Environmental Laws and any permits issued pursuant thereto and Indemnitor shall use commercially reasonable efforts to ensure that all uses by any Tenant or any other Person are in compliance with all Environmental Laws and any permits issued pursuant thereto;

(b)

there shall be no Releases of Hazardous Substances in, on, under or from the Property, except those that are both (i) in compliance with all Environmental Laws and with any permits issued pursuant thereto and (ii) fully disclosed to Indemnitee in writing;

(c)

except for Hazardous Substances used in compliance with all Environmental Laws and in the ordinary course of business, there shall be no Hazardous Substances in, on, or under the Property,

except those that are both (i) in compliance with all Environmental Laws and with any permits issued pursuant thereto, if such permits are required pursuant to Environmental Laws, and (ii) fully disclosed to Indemnitee in writing;

(d)

subject to the contest rights afforded to Indemnitor under the Loan Documents, Indemnitor shall keep the Property free and clear of all liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of Indemnitor or any other Person (the “Environmental Liens”);

(e)

Indemnitor shall, at its sole cost and expense, fully and expeditiously cooperate in all activities required pursuant to Paragraph 3 of this Agreement, including, but not limited to, providing all relevant information in Indemnitor’s possession or reasonably attainable by Indemnitor and making knowledgeable persons available for interviews;

(f)

Indemnitor shall, at its sole cost and expense, pursuant to any written request of Indemnitee (i) based upon facts giving rise to a reasonable suspicion of a violation of Environmental Laws of a required Remediation, or of a Release, and/or (ii) during the continuance of an Event of Default, perform any environmental site assessment or other investigation of environmental conditions in connection with the Property, pursuant to any reasonable written request of Indemnitee (including, but not limited to, sampling, testing and analysis of soil, water, air, building materials, and other materials and substances whether solid, liquid or gas), and share with Indemnitee the reports and other results thereof, and Indemnitee and the other the Indemnified Parties shall be entitled to rely on such reports and other results thereof;

(g)

Indemnitor shall, at its sole cost and expense, comply with all reasonable written requests of Indemnitee to (i) effectuate Remediation of any condition (including, but not limited to, a Release of a Hazardous Substance) in, on, under or from the Property; (ii) comply with any Environmental Law; and (iii) comply with any directive from any Governmental Authority;

(h)

Indemnitor shall not do, or allow any tenant or other user of the Property to do, any act that materially increases the dangers to human health or the environment, or is contrary to any requirement of any insurer; and

(i)

Indemnitor shall promptly notify Indemnitee in writing upon its becoming aware of (A) any presence or Releases or threatened Releases of Hazardous Substances in, on, under, from or migrating towards the Property in violation of Environmental Law; (B) any non-compliance with any Environmental Laws related in any way to the Property; (C) any actual or potential Environmental Lien; (D) any Remediation of environmental conditions relating to the Property required under Environmental Laws; and (E) any written or oral notice or other communication of which any Indemnitor becomes aware from any reasonably credible source whatsoever (including, but not limited to, a Governmental Authority) relating in any way to Hazardous Substances or Remediation thereof, possible liability of any Person pursuant to any Environmental Law, other environmental conditions in connection with the Property, or any actual or potential administrative or judicial proceedings in connection with anything referred to in this Agreement.

Indemnified Rights/Cooperation and Access. In the event that Indemnitee has a reasonable basis to believe that a violation of Environmental Law has occurred or that a Release exists on the

Property that, in the sole judgment of Indemnitee, does not either endanger any tenants or other occupants of the Property or their guests or the general public, or materially and adversely affect the value of the Property, upon reasonable notice to Indemnitor, Indemnitor shall, at Indemnitor’s expense, promptly cause an engineer or consultant satisfactory to Indemnitee to conduct an environmental assessment or audit (the scope of which shall be determined in the sole and absolute discretion of Indemnitee) and take any samples of soil, groundwater or other water, air, or building materials or any other invasive testing requested by Indemnitee, cause such engineer or consultant to promptly deliver to Indemnitee the results of any such assessment, audit, sampling or other testing; provided, however, if such results are not delivered to Indemnitee within a reasonable period or if Indemnitee has a reasonable basis to believe that a violation of Environmental Law has occurred or that a Release exists on the Property that, in the sole judgment of Indemnitee, endangers any tenant or other occupant of the Property or their guests or the general public or may materially and adversely affect the value of the Property, upon reasonable notice to Borrower, Indemnitee and any other Person designated by Indemnitee (including, but not limited to, any receiver, any representative of a Governmental Authority and any environmental consultant) shall have the right, but not the obligation, to enter upon the Property at all reasonable times (subject to rights of tenants, if any) to assess any and all aspects of the environmental condition of the Property and its use, including but not limited to, conducting any environmental assessment or audit (the scope of which shall be determined in the sole and absolute discretion of Indemnitee) and taking samples of soil, groundwater or other water, air, or building materials, and reasonably conducting other invasive testing, all at the sole cost and expense of Indemnitor. Indemnitor shall cooperate with and provide Indemnitee and any such Persons designated by Indemnitee with access to the Property.

Indemnification. Subject to the terms hereof, Indemnitor covenants and agrees, at its sole cost and expense, to protect, defend, indemnify, release and hold the Indemnified Parties harmless from and against any and all Losses (defined below) imposed upon or incurred by or asserted against any Indemnified Parties and directly or indirectly arising out of or in any way relating to any one or more of the following: (a) any presence of any Hazardous Substances in, on, above, or under the Property; (b) any past, present or threatened Release of Hazardous Substances in, on, above, under or from the Property; (c) any activity by Indemnitor, any Affiliate of Indemnitor, and any tenant or other user of the Property in connection with any actual or threatened use, treatment, storage, holding, existence, disposition or other Release, generation, production, manufacturing, processing, refining, control, management, abatement, removal, handling, transfer or transportation to or from the Property of any Hazardous Substances at any time located in, under, on or above the Property; (d) any activity by Indemnitor, any Affiliate of Indemnitor, and any tenant or other user of the Property in connection with any actual or proposed Remediation of any Hazardous Substances at any time located in, under, on or above the Property, whether or not such Remediation is voluntary or pursuant to court or administrative order, including, but not limited to, any removal, remedial or corrective action; (e) any past, present or threatened non-compliance or violations of any Environmental Laws (or any permits issued pursuant to any Environmental Law) by Indemnitor, any Affiliate of Indemnitor, or any tenant or other user of the Property in connection with the Property or operations thereon, including, but not limited to, any failure by Indemnitor, any Affiliate of Indemnitor, and any tenant or other user of the Property to comply with any order of any Governmental Authority in connection with any Environmental Laws; (f) the imposition, recording or filing or the threatened imposition, recording or filing of any Environmental Lien encumbering the Property; (g) any administrative processes or proceedings or

judicial proceedings in any way connected with any matter addressed in this Agreement; (h) any past, present or threatened injury to, destruction of or loss of natural resources in any way connected with the Property caused by Hazardous Substances or a violation of Environmental Law, including, but not limited to, costs to investigate and assess such injury, destruction or loss; (i) any acts of Indemnitor, any Affiliate of Indemnitor, and any tenant or other invitee of the Property in arranging for disposal or treatment, or arranging with a transporter for transport for disposal or treatment, of Hazardous Substances at any facility or incineration vessel containing Hazardous Substances in violation of any Environmental Law; (j) any acts of Indemnitor, any Affiliate of any Indemnitor, and any tenant or other user of the Property in accepting any Hazardous Substances for transport to disposal or treatment facilities, incineration vessels or sites from which there is a Release, or a threatened Release of any Hazardous Substance which causes the incurrence of costs for Remediation; (k) any personal injury, wrongful death resulting from an environmental condition at the Property, or property or other damage arising under any statutory or common law or tort law theory, including, but not limited to, damages assessed for private or public nuisance or for the conducting of an abnormally dangerous activity on or near the Property; and (l) any misrepresentation or inaccuracy in any representation or warranty or material breach or failure to perform any covenants or other obligations related to Environmental Laws and/or Hazardous Substances, whether pursuant to this Agreement, the Loan Agreement or the Mortgage. Notwithstanding the foregoing or anything to the contrary herein, Indemnitor shall not have any indemnification obligations or liabilities to Indemnitee under this Agreement with respect to any claim, loss, damage, cost, expense or liability that has been adjudicated as final (and is not subject to appeal) to arise solely out of, or that Indemnitor can prove to the reasonable satisfaction of Indemnitee arose solely out of, Hazardous Substances in, on, under or about the Property (a) that were (i) not present prior to the date that Indemnitee or its nominee acquired title to the Property (and in no event resulting from or relating to a condition existing or which may have existed prior to the date that Indemnitee or its nominee acquired title to the Property), whether by foreclosure, exercise of power of sale, acceptance of a deed-in-lieu of foreclosure, or otherwise or (ii) due to Indemnitee’s willful misconduct or gross negligence, and (b) that were not the result of any act or negligence of Indemnitor or any of Indemnitor’s affiliates, agents or contractors.

Duty to Defend and Attorneys and Other Fees and Expenses. Upon written request by any Indemnified Party, Indemnitor shall defend such Indemnified Party (if requested by such Indemnified Party, in the name of such Indemnified Party) by attorneys and other professionals reasonably approved by Indemnitee (on behalf of the Indemnified Parties). Notwithstanding the foregoing, any Indemnified Parties may, in their sole and absolute discretion, engage their own attorneys and other professionals to defend or assist them, and, at the option of the Indemnified Parties, upon the occurrence and during the continuance of an Event of Default, their attorneys shall control the resolution of any claim or proceeding, providing that no compromise or settlement shall be entered without Indemnitor’s consent, which consent shall not be unreasonably withheld. Upon demand, Indemnitor shall pay or, in the sole and absolute discretion of the Indemnified Parties, reimburse, the Indemnified Parties for the payment of reasonable out of pocket fees and disbursements of attorneys, engineers, environmental consultants, laboratories and other professionals in connection therewith.

Definitions. As used in this Agreement, the following terms shall have the following meanings:

“Actual Knowledge” means the actual (as opposed to imputed or constructive) present knowledge of such party.

“Environmental Diminution in Value” means the diminution in value of the Property (if any) due solely to an Environmental Event (as defined below) after giving effect to all Remediation reasonably required to cause the Property to be in compliance with Environmental Laws as determined by a court of competent jurisdiction in a non-appealable judgment, order and/or decision; provided, however, that such diminution in value (i) shall (notwithstanding the other terms of this Agreement) only be calculated after the exercise of all of Indemnitee’s remedies under the other Loan Documents relating to the Borrower’s interests in Property and any other collateral related to the Property securing the Loan (collectively, the “Collateral”) (including, without limitation, the foreclosure of the Mortgage (or acceptance of an assignment in lieu of foreclosure) and the subsequent sale or other disposition to a third party of all other collateral related to the Property and application of all funds received by Lender to the Obligations), (ii) shall be expressly limited to the negative difference (if any) between the amount of the Obligations and the amount recovered by Indemnitee (for the benefit of Lender) after Indemnitee’s completion of the exercise of all Indemnitee’s remedies under the other Loan Documents as described in the preceding clause (i), and (iii) shall not include any decrease in value due to changes in market conditions or any other matter that is not an Environmental Event. As used in this definition, the term “Environmental Event” shall mean an event for which Indemnitor is liable to any Indemnified Party in accordance with the terms of Section 4 of this Agreement

“Environmental Laws” means any present and future federal, state and local laws, statutes, ordinances, rules, regulations and the like, as well as common law, relating to protection of human health or the environment, relating to Hazardous Substances and/or relating to liability for or costs of other actual or threatened danger to human health or the environment. The term “Environmental Laws” includes, but is not limited to, the following statutes, as amended, any successor thereto, and any regulations promulgated pursuant thereto, and any state or local statutes, ordinances, rules, regulations and the like addressing similar issues: the Comprehensive Environmental Response, Compensation and Liability Act; the Emergency Planning and Community Right-to-Know Act; the Hazardous Substances Transportation Act; the Resource Conservation and Recovery Act (including, but not limited to, Subtitle I relating to underground storage tanks); the Solid Waste Disposal Act; the Clean Water Act; the Clean Air Act; the Toxic Substances Control Act; the Safe Drinking Water Act; the Occupational Safety and Health Act; the Federal Water Pollution Control Act; the Federal Insecticide, Fungicide and Rodenticide Act; the Endangered Species Act; the National Environmental Policy Act; the River and Harbors Appropriation Act; and those relating to Lead Based Paint. The term “Environmental Laws” also includes, but is not limited to, any present and future federal, state and local laws, statutes, ordinances, rules, regulations and the like, as well as common law, conditioning transfer of property upon a negative declaration or other approval of a Governmental Authority of the environmental condition of the Property; requiring notification or disclosure of Releases of Hazardous Substances or other environmental condition of a property to any Governmental Authority or other Person, whether or not in connection with any transfer of title to or interest in such property; imposing conditions or requirements in connection with permits or other

authorization for lawful activity related to Hazardous Substances and/or the Remediation of Hazardous Substances; relating to nuisance, trespass or other causes of action related to the Property in connection with any Hazardous Substances and/or the Remediation of Hazardous Substances; and relating to wrongful death, personal injury or property or other damage in connection with Hazardous Substances and/or the Remediation of Hazardous Substances.

“Hazardous Substances” includes, but is not limited to, any and all substances (whether solid, liquid or gas) defined, listed or otherwise classified as pollutants, hazardous wastes, hazardous substances, hazardous materials, extremely hazardous wastes or words of similar meaning or regulatory effect under any present or future Environmental Laws, including, but not limited to, petroleum and petroleum products, asbestos and asbestos-containing materials, polychlorinated biphenyls, lead, radon, radioactive materials, flammables and explosives, Lead Based Paint and Toxic Mold, but excluding substances of kinds and in amounts ordinarily and customarily used or stored in properties similar to the Property for the purposes of cleaning or other maintenance operations and otherwise in compliance with all Environmental Law.

“Indemnified Parties” includes Indemnitee, any Person who is or will have been involved in the origination of the Loan, any Person who is or will have been involved with the servicing of the Loan (including, without limitation, any Servicer), any Person in whose name the encumbrance created by the Mortgage is or will have been recorded, any Person who may hold or acquire or will have held a full or partial interest in the Loan (including, but not limited to, Investors (defined below), as well as custodians, trustees and other fiduciaries who hold or have held a full or partial interest in the Loan for the benefit of third parties) as well as the respective directors, officers, shareholders, partners, employees, agents, servants, representatives, contractors, subcontractors, affiliates, subsidiaries, participants, successors and assigns of any and all of the foregoing (including, but not limited to, any other Person who holds or acquires, or will have held, a participation or other full or partial interest in the Loan, including, but not limited to, any successors by merger, consolidation or acquisition of all or a substantial portion of Indemnitee’s assets and business).

“Investors” means, individually and collectively, any purchaser, transferee, assignee, pledgee, servicer, participant, co-lender or investor of, or in, the Loan or the Securities or any interest(s) therein.

“Lead Based Paint” means paint containing more than 0.5% lead by dry weight.

“Legal Action” means any claim, suit, action or proceeding, whether administrative or judicial in nature.

“Losses” includes any actual out-of-pocket losses, damages, Environmental Diminution in Value of the Property, costs, fees, expenses, claims, suits, judgments, awards, liabilities (including, but not limited to, strict liabilities), obligations, debts, fines, penalties, charges, costs of Remediation (whether or not performed voluntarily), amounts paid in settlement, foreseeable consequential damages, reasonable litigation costs, reasonable attorneys’ fees, engineers’ fees, environmental consultants’ fees, and investigation costs (including, but not limited to, costs for sampling, testing and analysis of soil, water, air, building materials, and other materials and substances whether solid, liquid or gas), of whatever kind or nature, and whether or not

incurred in connection with any judicial or administrative proceedings, actions, claims, suits, judgments or awards, but expressly excluding (i) diminution in value of the Property (other than Environmental Diminution in Value), and (ii) punitive, exemplary or special damages, and any consequential damages to the extent the same are unforeseeable, except to the extent awarded against an Indemnified Party.

“Release” includes, but is not limited to, any release, deposit, discharge, emission, leaking, leaching, spilling, seeping, migrating, injecting, pumping, pouring, emptying, escaping, dumping, disposing or other movement of Hazardous Substances in violation of applicable Environmental Law.

“Remediation” includes, but is not limited to, any response, remedial, removal, or corrective action with respect to any Hazardous Substance; any activity to clean up, detoxify, decontaminate, contain or otherwise remediate any Hazardous Substance; any actions to prevent, cure or mitigate any Release of any Hazardous Substance; any action to comply with any Environmental Laws or with any permits issued pursuant thereto relating to the Property; any inspection, investigation, study, monitoring, assessment, audit, sampling and testing, laboratory or other analysis, or evaluation relating to any Hazardous Substances.

“Toxic Mold” means any fungus or living substance that reproduces through the release of spores or the splitting of cells or other means, which substance that may pose a risk to human health or the environment or negatively affect the value of the Property, including, but not limited to, mold, mildew, fungi, fungal spores, fragments and metabolites such as mycotoxins and microbial volatile organic compounds.

Unimpaired Liability. Except as provided herein to the contrary, the liability of Indemnitor under this Agreement shall in no way be limited or impaired by, and Indemnitor hereby consents to and agrees to be bound by, any amendment or modification of the provisions of the Note, the Loan Agreement, the Mortgage or any other Loan Document to or with Indemnitee by Borrower or any Person who succeeds Borrower (or its successor) as owner of the Property. In addition, except as provided herein to the contrary, the liability of Indemnitor under this Agreement shall in no way be limited or impaired by (a) any extensions of time for performance required by the Note, the Loan Agreement, the Mortgage or any of the other Loan Documents, (b) any sale or transfer of all or part of the Property, subject to Section 9 below, (c) any exculpatory provision in the Note, the Loan Agreement, the Mortgage or any of the other Loan Documents limiting Indemnitee’s recourse to the Property or to any other security for the Note, or limiting Indemnitee’s rights to a deficiency judgment against Indemnitor, (d) the accuracy or inaccuracy of the representations and warranties made by Indemnitor under this Agreement, the Note, the Loan Agreement, the Mortgage or any of the other Loan Documents, (e) the release of Indemnitor or any other Person from performance or observance of any of the agreements, covenants, terms or condition contained in any of the other Loan Documents by operation of law, Indemnitee’s voluntary act, or otherwise, (f) the release or substitution in whole or in part of any security for the Note, or (g) Indemnitee’s failure to record the Mortgage or file any UCC financing statements (or Indemnitee’s improper recording or filing of any thereof) or to otherwise perfect, protect, secure or insure any security interest or lien given as security for the Note; and, in any such case, whether with or without notice to Indemnitor and with or without consideration.

Enforcement. The Indemnified Parties may enforce the obligations of Indemnitor without first resorting to, or exhausting any security or collateral under, or without first having recourse pursuant to, the Note, the Loan Agreement, the Mortgage or any other Loan Documents or any of the Property, through foreclosure proceedings or otherwise, provided, however, that nothing herein shall inhibit or prevent Indemnitee from suing on the Note, foreclosing, or exercising any power of sale (to the extent permitted by Legal Requirements) under, the Mortgage, or exercising any other rights and remedies thereunder. This Agreement is not collateral or security for the debt of Indemnitor pursuant to the Loan, unless Indemnitee expressly elects in writing to make this Agreement additional collateral or security for the debt of Indemnitor pursuant to the Loan, which Indemnitee is entitled to do in its sole and absolute discretion. It is not necessary for an Event of Default to have occurred for the Indemnified Parties to exercise their rights pursuant to this Agreement. Notwithstanding any provision of the Loan Agreement, the obligations pursuant to this Agreement are exceptions to any non-recourse or exculpation provision of the Loan Agreement; each Indemnitor is fully liable for such obligations, joint and several with each other Indemnitor, without the benefit of any exculpatory provisions, and such liability is not limited to the original or amortized principal balance of the Loan or the value of the Property.

Survival. The obligations and liabilities of Indemnitor under this Agreement shall fully survive indefinitely notwithstanding any termination, satisfaction, assignment, entry of a judgment of foreclosure, exercise of any power of sale, or delivery of a deed in lieu of foreclosure of the Mortgage. Notwithstanding the foregoing, in the event that (i) the Debt is paid in full in accordance with the terms of the Loan Agreement, (ii) Indemnitor delivers to Indemnitee a current Phase I environmental site assessment with respect to the Property (and a follow up Phase II environmental assessment report if required by the Phase I), which concludes, as determined by Indemnitee in its reasonable discretion, that (A) there are no Hazardous Substances or evidence of underground storage tanks in or under the Property except those that are both (x) in compliance with all Environmental Laws and with any permits required to be issued pursuant thereto and (y) fully disclosed to Lender in writing pursuant to such environmental report, (B) there are no past or present Releases of Hazardous Substances in, on, under or from the Property which have not been fully remediated in accordance with Environmental Laws and (C) there is no present non-compliance with Environmental Laws, or with any permits issued pursuant thereto, in connection with the applicable Property which has not been fully remediated in accordance with Environmental Laws, together with such other information or investigations as Indemnitee may require in its reasonable discretion, (iii) no Event of Default exists and is continuing under this Agreement or under any of the other Loan Documents, (iv) Indemnitee has not exercised any of its remedies under the Mortgage to obtain an entry of a judgment of foreclosure, exercise any power of sale, or obtain delivery of a deed‑in‑lieu of foreclosure of the Mortgage, (v) there has been no change in any Environmental Law or other Legal Requirement the effect of which would be to make a lender/mortgagee liable with respect to any condition or matter for which the Indemnified Parties are entitled to be indemnified notwithstanding the fact that the Indebtedness was repaid in full, and (vi) as of the date of determination, all of the representations and warranties contained under this Agreement and in any of the other Loan Documents with respect to Hazardous Substances and Environmental Laws are true and correct with respect to the Property to the extent such representations and warranties are not matters which by their nature can no longer be true and correct as a result of the passage of time or to the extent the same are contradicted by information in the Phase I report (or Phase II report) delivered pursuant to this Section 9, as determined by Indemnitee in its commercially reasonable discretion, then Indemnitor shall be

released from its obligations set forth herein solely with respect to such Property on the third (3rd) anniversary of the date on which items (i)-(vi) above are satisfied with respect to the Property.

10.

Interest. Any amounts payable by Indemnitor to any Indemnified Parties under this Agreement shall become immediately due and payable on written demand and, if not paid within ten (10) days of such demand therefor, shall bear interest at the lesser of (a) the Default Rate or (b) the Maximum Legal Rate which Indemnitor may by law pay or the Indemnified Parties may charge and collect, from the date payment was due, provided that the foregoing shall be subject to the provisions of Article 4 of the Note.

11.

Waivers. (a) Indemnitor hereby waives, to the extent allowed under applicable law (i) any right or claim of right to cause a marshaling of Indemnitor’s assets or to cause Indemnitee or the other Indemnified Parties to proceed against any of the security for the Loan before proceeding under this Agreement against Indemnitor; (ii) and relinquishes all rights and remedies accorded by applicable law to indemnitors or guarantors, except any rights of subrogation which Indemnitor may have, provided that the indemnity provided for hereunder shall neither be contingent upon the existence of any such rights of subrogation nor subject to any claims or defenses whatsoever which may be asserted in connection with the enforcement or attempted enforcement of such subrogation rights including, without limitation, any claim that such subrogation rights were abrogated by any acts of Indemnitee or the other Indemnified Parties; (iii) the right to assert a counterclaim, other than a mandatory or compulsory counterclaim, in any action or proceeding brought against or by Indemnitee or the other Indemnified Parties; (iv) notice of acceptance hereof and of any action taken or omitted in reliance hereon; (v) presentment for payment, demand of payment, protest or notice of nonpayment or failure to perform or observe, or other proof, or, except as provided in any Loan Agreement to the contrary, notice or demand; and (vi) all homestead exemption rights against the obligations hereunder and the benefits of any statutes of limitations or repose. Notwithstanding anything to the contrary contained herein, Indemnitor hereby agrees to postpone the exercise of any rights of subrogation with respect to any collateral securing the Loan until the Loan shall have been paid in full.

(b) INDEMNITOR AND, BY ITS ACCEPTANCE HEREOF, INDEMNITEE, EACH HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM, WHETHER IN CONTRACT, TORT OR OTHERWISE, RELATING TO THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR ANY ACTS OR OMISSIONS OF ANY INDEMNIFIED PARTIES IN CONNECTION THEREWITH.

12.

Subrogation. Indemnitor shall take any and all reasonable actions, including institution of legal action against third parties, necessary or appropriate to obtain reimbursement, payment or compensation from such persons responsible for the presence of any Hazardous Substances at, in, on, under or near the Property or otherwise obligated by law to bear the cost. The Indemnified Parties shall be and hereby are subrogated to all of Indemnitor’s rights now or hereafter in such claims.

13.

Indemnitor’s Additional Representations and Warranties. Indemnitor further represents and warrants that:

(a)

it has the full power and authority to execute and deliver this Agreement and to perform its obligations hereunder; the execution, delivery and performance of this Agreement by Indemnitor has been duly and validly authorized; and all requisite action has been taken by Indemnitor to make this Agreement valid and binding upon Indemnitor, enforceable in accordance with its terms (subject to principles of equity, bankruptcy, insolvency and other laws generally affecting creditors’ rights and the enforcement of debtors’ obligations);

(b)

its execution of, and compliance with, this Agreement is in the ordinary course of business of Indemnitor and will not result in the breach of any term or provision of the charter, by-laws, partnership or trust agreement, or other governing instrument of Indemnitor or result in the breach of any term or provision of, or conflict with or constitute a default under, or result in the acceleration of any obligation under, any agreement, indenture or loan or credit agreement or other instrument to which Indemnitor or the Property is subject, or result in the violation of any law, rule, regulation, order, judgment or decree to which Indemnitor or the Property is subject;

(c)

to Indemnitor’s Actual Knowledge, there is no action, suit, proceeding or investigation pending or threatened against it which, either in any one instance or in the aggregate, has or is reasonably likely to have a Material Adverse Effect (or, if determined adversely to Indemnitor, would result in a breach of Section 3.6(d) of the Guaranty), or which would draw into question the validity of this Agreement or of any action taken or to be taken in connection with the obligations of Indemnitor contemplated herein, or which would be likely to impair materially the ability of Indemnitor to perform under the terms of this Agreement;

(d)

it does not believe, nor does it have any reason or cause to believe, that it cannot perform each and every covenant contained in this Agreement;

(e)

to Indemnitor’s Actual Knowledge, no approval, authorization, order, license or consent of, or registration or filing with, any Governmental Authority or other person, and no approval, authorization or consent of any other party is required in connection with this Agreement; and

(f)

this Agreement constitutes a valid, legal and binding obligation of Indemnitor, enforceable against it in accordance with the terms hereof (subject to principles of equity, bankruptcy, insolvency and other laws generally affecting creditors’ rights and the enforcement of debtors’ obligations).

14.

No Waiver. No delay by any Indemnified Party in exercising any right, power or privilege under this Agreement shall operate as a waiver of any such privilege, power or right.

15.

Notice of Legal Actions. Each party hereto shall, within five (5) Business Days of receipt thereof, give written notice to the other party hereto of (a) any notice, advice or other communication from any Governmental Authority or any source whatsoever with respect to Hazardous Substances on, from or affecting the Property, and (b) any Legal Action brought against such party or related to the Property, with respect to which Indemnitor may have liability under this Agreement. Such notice shall comply with the provisions of Section 19 hereof.

16.

Intentionally Omitted.

17.

Transfer of Loan. Indemnitee may, at any time, sell, transfer or assign the Note, the Loan Agreement, the Mortgage, this Agreement and the other Loan Documents, and any or all servicing rights with respect thereto, or include the Loan in a Secondary Market Transaction. Indemnitee may forward to each Investor and each prospective Investor, all documents and information which Indemnitee now has or may hereafter acquire relating to Indemnitor and the Property, whether furnished by Indemnitor or otherwise, as Indemnitee determines necessary or desirable. Indemnitor agrees to cooperate with Indemnitee in connection with any transfer made pursuant to this Section 17, including, without limitation, the delivery of an estoppel certificate and such other documents as may be reasonably requested by Indemnitee. Indemnitor shall also furnish, and Indemnitor hereby consents to Indemnitee furnishing to such Investors or such prospective Investors, any and all information concerning the financial condition of the Indemnitor and any and all information concerning the Property and the Leases as may be requested by Indemnitee, any Investor or any prospective Investor in connection with any sale, transfer or participation interest; provided, however, in no event shall Indemnitee, any Investor or any prospective Investor request or ACRES be required to furnish or cause to be furnished any audited financial statements or any tax returns of ACRES.

18.

Intentionally Omitted.

19.

Notices. All notices, consents, approvals and requests made, required or permitted hereunder shall be given in writing and shall be effective for all purposes if hand delivered or sent by (a) certified United States mail, postage prepaid, return receipt requested or (b) expedited prepaid delivery service, either commercial or United States Postal Service, with proof of attempted delivery, addressed as follows (or at such other address and Person as shall be designated from time to time by any party hereto, as the case may be, in a notice to the other parties hereto in the manner provided for in this Section 19):

Indemnitor: Chapel Drive East, LLC
c/o Charles Street Partners
1331 17th Street, Suite M-100
Denver, Colorado 80202
Attention: Jason Pollack

Jason Pollack
4408 West 34th Avenue
Denver, Colorado 80212

Frank Dellaglio
11 Stoney Brook Road
Sherborn, Massachusetts 01770

ACRES Realty Funding, Inc.
c/o ACRES Capital, LLC
390 RXR Plaza
Uniondale, New York 11556
Attention: Jaclyn A. Jesberger, General Counsel

And to: Greenberg Traurig, LLP
One International Place
Boston, Massachusetts 02110
Attn: Dina E. Conlin

Murland Dainoff LLC
651 E. Township Line Road, #1055
Blue Bell, PA 19422
Attn: Brian L. Murland

Indemnitee: Oceanview Life and Annuity Company
Attention: Matthew Philip
c/o Oceanview Asset Management
142 West 57th Street, 3rd Floor
New York, New York 10019

Oceanview Life and Annuity Company
Attention: Marnie Adams
c/o Oceanview Asset Management
142 West 57th Street, 3rd Floor
New York, New York 10019

And to: Cadwalader, Wickersham & Taft LLP
650 South Tryon Street
Charlotte, North Carolina 28202
Attention: Christopher Dickson, Esq.

20.

Duplicate Originals; Counterparts. This Agreement may be executed in one or more counterparts, all of which taken together shall (upon execution and delivery by each party) constitute a single instrument. This Agreement will become effective only when all parties to this Agreement have executed a counterpart hereof. A photocopied, scanned, telecopied, or other electronic signature of any party to this Agreement shall have the same force and effect as an original signature for all purposes.

21.

No Oral Change. This Agreement, and any provisions hereof, may not be modified, amended, waived, extended, changed, discharged or terminated orally or by any act or failure to act on the part of Indemnitor or any Indemnified Party, but only by an agreement in writing signed by the party against whom enforcement of any modification, amendment, waiver, extension, change, discharge or termination is sought.

22.

Headings, Etc. The headings and captions of various paragraphs of this Agreement are for convenience of reference only and are not to be construed as defining or limiting, in any way, the scope or intent of the provisions hereof.

23.

Number and Gender/Successors and Assigns. All pronouns and any variations thereof shall be deemed to refer to the masculine, feminine, neuter, singular or plural as the identity of the person or persons referred to may require. Without limiting the effect of specific references in any provision of this Agreement, the term “Indemnitor” shall be deemed to refer to each and every Person comprising an Indemnitor from time to time, as the sense of a particular provision may require, and to include the heirs, executors, administrators, legal representatives, successors and assigns of Indemnitor, all of whom shall be bound by the provisions of this Agreement, provided that no obligation of Indemnitor may be assigned except with the written consent of Indemnitee or otherwise in accordance with the Loan Documents. Each reference herein to Indemnitee shall be deemed to include its successors and assigns. This Agreement shall inure to the benefit of the Indemnified Parties and their respective successors and assigns forever.

24.

Release of Liability. Any one or more parties liable upon or in respect of this Agreement may be released without affecting the liability of any party not so released.

25.

Rights Cumulative. The rights and remedies herein provided are cumulative and not exclusive of any rights or remedies which Indemnitee has under the Note, the Mortgage, the Loan Agreement or the other Loan Documents or would otherwise have at law or in equity.

26.

Inapplicable Provisions. If any term, condition or covenant of this Agreement shall be held to be invalid, illegal or unenforceable in any respect, this Agreement shall be construed without such provision.

27.

Governing Law.

(a)

THIS AGREEMENT WAS NEGOTIATED IN THE STATE OF NEW YORK, AND THE PROCEEDS OF THE LOAN WERE DISBURSED FROM THE STATE OF NEW YORK, WHICH STATE THE PARTIES AGREE HAS A SUBSTANTIAL RELATIONSHIP TO THE PARTIES AND TO THE UNDERLYING TRANSACTION EMBODIED HEREBY, AND IN ALL RESPECTS, INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS AGREEMENT AND THE OBLIGATIONS ARISING HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE (WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS) AND ANY APPLICABLE LAW OF THE UNITED STATES OF AMERICA, PURSUANT TO SECTION 5‑1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW. TO THE FULLEST EXTENT PERMITTED BY LAW, INDEMNITOR HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY CLAIM TO ASSERT THAT THE LAW OF ANY OTHER JURISDICTION GOVERNS THIS AGREEMENT AND/OR THE OTHER LOAN DOCUMENTS, AND THIS AGREEMENT AND/OR THE OTHER LOAN DOCUMENTS SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE

STATE OF NEW YORK PURSUANT TO SECTION 5.1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.

(b)

ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST INDEMNITEE OR INDEMNITOR ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS MAY AT INDEMNITEE’S OPTION BE INSTITUTED IN ANY FEDERAL OR STATE COURT IN THE COUNTY AND STATE OF NEW YORK, PURSUANT TO SECTION 5‑1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW, AND INDEMNITOR WAIVES ANY OBJECTIONS WHICH IT MAY NOW OR HEREAFTER HAVE BASED ON VENUE AND/OR FORUM NON CONVENIENS OF ANY SUCH SUIT, ACTION OR PROCEEDING, AND BORROWER HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT IN ANY SUIT, ACTION OR PROCEEDING. INDEMNITOR DOES HEREBY DESIGNATE AND APPOINT:

United Corporate Services, Inc.
10 Bank Street, Suite 560
White Plains, New York 10606

AS ITS AUTHORIZED AGENT TO ACCEPT AND ACKNOWLEDGE ON ITS BEHALF SERVICE OF ANY AND ALL PROCESS WHICH MAY BE SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY FEDERAL OR STATE COURT IN NEW YORK, NEW YORK, AND AGREES THAT SERVICE OF PROCESS UPON SAID AGENT AT SAID ADDRESS AND NOTICE OF SAID SERVICE MAILED OR DELIVERED TO INDEMNITOR IN THE MANNER PROVIDED HEREIN SHALL BE DEEMED IN EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON INDEMNITOR IN ANY SUCH SUIT, ACTION OR PROCEEDING IN THE STATE OF NEW YORK. INDEMNITOR (I) SHALL GIVE PROMPT NOTICE TO INDEMNITEE OF ANY CHANGED ADDRESS OF ITS AUTHORIZED AGENT HEREUNDER, (II) MAY AT ANY TIME AND FROM TIME TO TIME DESIGNATE A SUBSTITUTE AUTHORIZED AGENT WITH AN OFFICE IN NEW YORK, NEW YORK (WHICH SUBSTITUTE AGENT AND OFFICE SHALL BE DESIGNATED AS THE PERSON AND ADDRESS FOR SERVICE OF PROCESS), AND (III) SHALL PROMPTLY DESIGNATE SUCH A SUBSTITUTE IF ITS AUTHORIZED AGENT CEASES TO HAVE AN OFFICE IN NEW YORK, NEW YORK OR IS DISSOLVED WITHOUT LEAVING A SUCCESSOR.

28.

Operations and Maintenance Programs. If recommended by the Environmental Report or any other environmental assessment or audit of the Property (including, without limitation, any assessment or audit performed after the date hereof), Indemnitor shall establish and comply with an operations and maintenance program with respect to the Property, in form and substance reasonably acceptable to Indemnitee, prepared by an environmental consultant reasonably acceptable to Indemnitee, which program shall address any asbestos-containing material or Lead Based Paint that may now or in the future be detected at or on the Property. Without limiting the generality of the preceding sentence, Indemnitee may require (a) periodic notices or reports to Indemnitee in form, substance and at such intervals as Indemnitee may specify, (b) an amendment to such operations and maintenance program to address changing circumstances, laws or other

matters, (c) at Indemnitor’s sole expense, supplemental examination of the Property by consultants specified by Indemnitee, (d) access to the Property by Indemnitee, its agents or servicer, to review and assess the environmental condition of the Property and Indemnitor’s compliance with any operations and maintenance program and (e) variation of the operations and maintenance program in response to the reports provided by any such consultants. Indemnitor’s failure to comply with the foregoing provisions of this Section within thirty (30) days of notice from Indemnitee shall, at Indemnitee’s option, constitute an Event of Default. As of the date of this Agreement, Indemnitor acknowledges that an operations and maintenance program is not required.

29.

Miscellaneous. (a) Wherever pursuant to this Agreement (i) Indemnitee exercises any right given to it approve or disapprove, (ii) any arrangement or term is to be satisfactory to Indemnitee, or (iii) any other decision or determination is to be made by Indemnitee, the decision of Indemnitee to approve or disapprove, all decisions that arrangements or terms are satisfactory or not satisfactory and all other decisions and determinations made by Indemnitee, shall be in the sole and absolute discretion of Indemnitee and shall be final and conclusive, except as may be otherwise expressly and specifically provided herein.

(b)

Wherever pursuant to this Agreement it is provided that Indemnitor pay any costs and expenses, subject to the terms hereof, such costs and expenses shall include, but not be limited to, reasonable out-of-pocket legal fees and disbursements of Indemnitee, incurred for retained outside law firms but shall exclude the expenses of the in-house staff.

(c)

Jason Pollack hereby represents and warrants that he is a resident of the State of Colorado and that his primary domicile is in the State of Colorado. Jason Pollack shall not change his State of residence and/or primary domicile to a State that is a community property jurisdiction unless (i) if he is married at the time, he first (A) provides Indemnitee at least ten (10) Business Days prior written notice thereof, and (B) causes his spouse to execute and deliver to Indemnitee a spousal consent with respect to this Agreement (which spousal consent shall be in form and substance satisfactory to Indemnitee) (a “Spousal Consent”), and (ii) if he is not married at the time and subsequently marries, or if he enters into a new marriage, at any time when he is a resident (and/or has a primary domicile) in a community property jurisdiction, he causes his spouse to execute and deliver to Lender a Spousal Consent within ten (10) days after the occurrence of any such marriage. Jason Pollack’s failure to comply with any of the foregoing within five (5) Business Days of written notice from Indemnitee, shall, at Indemnitee’s option, constitute an “Event of Default” hereunder and under the Loan Agreement.

(d)

Frank Dellaglio hereby represents and warrants that he is a resident of the Commonwealth of Massachusetts and that his primary domicile is in the Commonwealth of Massachusetts. Frank Dellaglio shall not change his State of residence and/or primary domicile to a State that is a community property jurisdiction unless (i) if he is married at the time, he first (A) provides Indemnitee at least ten (10) Business Days prior written notice thereof and (B) causes his spouse to execute and deliver to Indemnitee a Spousal Consent and (ii) if he is not married at the time and subsequently marries, or if he enters into a new marriage, at any time when he is a resident (and/or has a primary domicile) in a community property jurisdiction, he causes his spouse to execute and deliver to Indemnitee a Spousal Consent within ten (10) days after the occurrence of any such marriage. Frank Dellaglio’s failure to comply with any of the foregoing within five (5) Business

Days of written notice from Indemnitee, shall, at Indemnitee’s option, constitute an “Event of Default” hereunder and under the Loan Agreement.

30.

Limitation on Liability. Notwithstanding anything to the contrary in this Agreement or any other Loan Document, other than with respect to Principal, no present or future, direct or indirect, shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in (a) Borrower or (b) any person or entity that is or becomes a “Constituent Member” in Borrower (other than Principal) shall have any personal liability, directly or indirectly, under or in connection with this Agreement, or any amendment or amendments hereto made at any time or times, heretofore or hereafter, and each of the Indemnified Parties on behalf of itself and each of its successors and assigns, hereby waives any and all such personal liability. A “Constituent Member” in Borrower shall mean any direct shareholder, member or partner in Borrower and any person or entity that, directly or indirectly through one or more other partnerships, limited liability companies, corporations or other entities, owns an interest in Borrower. For purposes of this Agreement, neither the negative capital account of any Constituent Member in Borrower, nor any obligation of any Constituent Member in Borrower to restore a negative capital account or to contribute or loan capital to Borrower or to any other Constituent Member in Borrower shall at any time be deemed to be the property or an asset of such Indemnitor (or any such other Constituent Member) and neither the Indemnified Parties nor any of their respective successors or assigns shall have any right to collect, enforce or proceed against any Constituent Member with respect to any such negative capital account or obligation to restore, contribute or loan capital.

[NO FURTHER TEXT ON THIS PAGE]

IN WITNESS WHEREOF, this Agreement has been executed by Indemnitor and is effective as of the day and year first above written.

INDEMNITOR:

BORROWER:

CHAPEL DRIVE EAST, LLC, a Delaware limited liability company


By:	/s/ Jason Pollack
Name:	Jason Pollack
Title:	Authorized Signatory

PRINCIPAL:


By:	/s/ Jason Pollack
Name:	Jason Pollack
Title:	An individual

PRINCIPAL:


By:	/s/ Frank Dellaglio
Name:	Frank Dellaglio
Title:	An individual

ACRES REALTY FUNDING, INC., a Delaware corporation


By:	/s/ Jaclyn Jesberger
Name:	Jaclyn Jesberger
Title:	Vice President

EXHIBIT A

Legal Description

A TRACT OF LAND LOCATED IN SECTION 35, TOWNSHIP 1 NORTH, RANGE 1 WEST, LEON COUNTY, FLORIDA, AND BEING WITHIN THE LANDS AS DESCRIBED IN OFFICIAL RECORD BOOK 2996, PAGE 2055 OF THE PUBLIC RECORDS OF LEON COUNTY, FLORIDA, MORE PARTICULARLY DESCRIBED AS FOLLOWS:

COMMENCE AT AN OLD CONCRETE MONUMENT MARKING THE SOUTHEAST CORNER OF THE NORTHWEST QUARTER OF THE NORTHWEST QUARTER OF SECTION 35, TOWNSHIP 1 NORTH, RANGE 1 WEST, LEON COUNTY, FLORIDA; THENCE RUN NORTH 89 DEGREES 51 MINUTES WEST ALONG THE SOUTH BOUNDARY OF THE NORTHWEST QUARTER OF THE NORTHWEST QUARTER OF SAID SECTION 35, 774.60 FEET TO A CONCRETE MONUMENT; THENCE NORTH 00 DEGREES 04 MINUTES EAST, 198.00 FEET; THENCE SOUTH 89 DEGREES 53 MINUTES 39 SECONDS EAST, 110.00 FEET; THENCE NORTH 00 DEGREES 04 MINUTES EAST, 172.56 FEET; THENCE NORTH 89 DEGREES 42 MINUTES 38 SECONDS WEST, 242.51 FEET TO AN IRON REBAR WITH CAP TO THE SOUTHEAST CORNER OF LANDS DESCRIBED IN OFFICIAL RECORD BOOK 2996, PAGE 2055, OF THE PUBLIC RECORDS OF LEON COUNTY, FLORIDA, AND THE POINT OF BEGINNING. FROM SAID POINT OF BEGINNING RUN THENCE NORTH 89 DEGREES 49 MINUTES 18 SECONDS WEST ALONG THE SOUTH BOUNDARY OF SAID LANDS, 216.07 FEET TO THE EASTERLY BOUNDARY OF CHAPEL DRIVE (60 FOOT WIDE); THENCE NORTH 00 DEGREES 19 MINUTES 00 SECONDS WEST ALONG SAID EASTERLY BOUNDARY 542.51 FEET TO THE SOUTHERLY BOUNDARY OF CALL STREET AS DESCRIBED IN OFFICIAL RECORD BOOK 1875, PAGE 759 PUBLIC RECORDS OF LEON COUNTY, FLORIDA; THENCE ALONG SAID SOUTHERLY RIGHT-OF-WAY BOUNDARY AS FOLLOWS: SOUTH 68 DEGREES 45 MINUTES 47 SECONDS EAST, 54.77 FEET; THENCE NORTH 20 DEGREES 39 MINUTES 03 SECONDS EAST, 1.91 FEET; THENCE SOUTH 68 DEGREES 38 MINUTES 23 SECONDS EAST, 176.25 FEET; THENCE LEAVING SAID SOUTHERLY RIGHT-OF-WAY BOUNDARY RUN SOUTH 00 DEGREES 23 MINUTES 52 SECONDS EAST, 460.94 FEET TO THE POINT OF BEGINNING.

FOR INFORMATIONAL USE ONLY:

The Leon County, Florida Property Appraiser tax parcel identification numbers for the above-described land are: 21-34-81-000-002-0 and 21-34-81-000-214-1


Maryland	1-32733	20-2287134
(State or Other Jurisdiction of Incorporation)	(Commission File Number)	(IRS Employer Identification No.)

390 RXR Plaza
Uniondale, New York		11556
(Address of Principal Executive Offices)		(Zip Code)


Title of each class	Trading Symbol(s)	Name of each exchange on which registered
Common Stock, $0.001 par value per share	ACR	New York Stock Exchange
8.625% Fixed-to-Floating Series C Cumulative Redeemable Preferred Stock	ACRPrC	New York Stock Exchange
7.875% Series D Cumulative Redeemable Preferred Stock	ACRPrD	New York Stock Exchange


Exhibit No.
10.1	Guaranty Agreement executed January 24, 2023 by Jason Pollack, Frank Dellaglio and ACRES Realty Funding, Inc. for the benefit of Oceanview Life and Annuity Company
10.2	Completion Guaranty Agreement executed January 24, 2023 by Jason Pollack, Frank Dellaglio and ACRES Realty Funding, Inc. for the benefit of Oceanview Life and Annuity Company
10.3	Carry Guaranty Agreement executed January 24, 2023 by Jason Pollack, Frank Dellaglio and ACRES Realty Funding, Inc. for the benefit of Oceanview Life and Annuity Company
10.4	Environmental Indemnity Agreement executed January 24, 2023 by Jason Pollack, Frank Dellaglio and ACRES Realty Funding, Inc. in favor of Oceanview Life and Annuity Company
104	Cover Page Interactive Data File (embedded within the Inline XBRL document).


			ACRES COMMERCIAL REALTY CORP.

Date:	January 25, 2023	By:	/s/ David J. Bryant
			David J. Bryant Chief Financial Officer