GLOBAL SETTLEMENT AND ABSOLUTE RELEASE AGREEMENT – PAGE 11

Variable Rate Transactions. The Borrower consummates a Variable Rate Transaction at any time on or after the Issue Date.

“Investment Entities” means, as of any date of determination, those Persons in which the Borrower, the Parent, any of the Consolidated Entities or any of the Unconsolidated Entities directly or indirectly owns any Capital Stock which satisfy each of the following criteria: # such Person is an unconsolidated entity with respect to the Borrower or the Parent for financial reporting purposes or is an entity that is consolidated with the Borrower or the Parent as a result of the pronouncement entitled Financial Interpretation 46 “Consolidation of Variable Interest Entities” by the Financial Accounting Standards Board on January 17, 2003 as revised from time to time, # a party other than the Borrower, the Parent, a Consolidated Entity or an Unconsolidated Entity has primary control over day-to-day management of such Person (responsibilities under management agreements shall not constitute control), and # none of the Borrower, the Parent, any Consolidated Entity or any Unconsolidated Entity is directly or contingently liable for indebtedness of such Person, except for standard and customary recourse carve-outs commonly included in non-recourse financings in the form of guarantees or indemnities. For a list of the entities which are Investment Entities of the Borrower and the Parent as of the First Amendment Effective Date, see [Schedule 1.1(b)] attached hereto.

Merger or Consolidation. Merge or consolidate with or into another Person, or dissolve or liquidate, except that, so long as no Event of Default exists or would result therefrom:

Merger, Consolidation, Acquisition. Borrowers will not merge or consolidate with or into any other Person; or permit any Person to merge into either Borrower; or acquire all or substantially all of the assets or properties or capital stock of any other Person; or adopt or effect any plan of reorganization, recapitalization, liquidation or dissolution; provided, however, Borrowers may enter into letters of intent pertaining to merger, consolidation or acquisition subject to obtaining the Bank's written consent thereto prior to consummation of the transactions contemplated by such letter(s) of intent.

Subdivision or Consolidation. Subject to any required action by shareholders of the Corporation, the number of shares of Stock covered by each outstanding option, and the exercise price thereof, shall be proportionately adjusted for any increase or decrease in the number of issued shares of Stock of the Corporation resulting from a subdivision or consolidation of shares, including, but not limited to, a stock split, reverse stock split, recapitalization, continuation or reclassification, or the payment of a stock dividend (but only on the Stock) or any other increase or decrease in the number of such shares effected without receipt of consideration by the Corporation. Any fraction of a share subject to option that would otherwise result from an adjustment pursuant to this Section shall be rounded downward to the next full number of shares without other compensation or consideration to the holder of such option.

Letters of Credit Issued for Consolidated Entities/Unconsolidated Entities. Notwithstanding that a Letter of Credit issued or outstanding hereunder is in support of any obligations of, or is for the account of, a Consolidated Entity or Unconsolidated Entity, the [[Consolidated Parties:Organization]] shall # be required to sign the applicable Letter of Credit Application and # be obligated to reimburse the applicable L/C Issuer hereunder for any and all drawings under such Letter of Credit. The [[Consolidated Parties:Organization]] hereby acknowledges that the issuance of Letters of Credit for the account of any Consolidated Entity and/or any Unconsolidated Entity inures to the benefit of the [[Consolidated Parties:Organization]], and that the [[Consolidated Parties:Organization]]’s business derives substantial benefits from the businesses of such Persons.

. As of the Closing Date and as of the date of the last Compliance Certificate delivered pursuant to the terms of this Agreement, the ​ had no Consolidated Entities other than those specifically disclosed in Part # of [Schedule 5.13] and had no material equity investments in any other Unconsolidated Entity or Investment Entity other than those specifically disclosed in Part # of [Schedule 5.13] (as amended by any Compliance Certificate containing supplemental information thereto). The ​ qualifies as a REIT.

Interest Subject to the provisions of subsection # below, # each Term SOFR Loan under a Facility shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to Term SOFR for such Interest Period plus the Applicable Rate for such Facility; # each Base Rate Loan under a Facility shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate for such Facility; # each Alternative Currency Daily Rate Loan under the Revolving Credit Facility shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Alternative Currency Daily Rate plus the Applicable Rate; # each Alternative Currency Term Rate Loan under the Revolving Credit Facility shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to the Alternative Currency Term Rate for such Interest Period plus the Applicable Rate; and # each Swing Line Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to # the Base Rate plus the Applicable Rate for the Revolving Credit Facility or # the rate quoted to ​ by the Swing Line Lender on the date any Swing Line Loan shall be requested.

Interest. The outstanding principal amount of this Note shall accrue interest at the rate of 7% per annum until the Maturity Date. After the Maturity Date and upon the occurrence and during the continuation of any Event of Default, any principal balance of the Note remaining unpaid shall bear interest at the rate of 9% per annum. Accrued interest shall be calculated on the basis of a 360-day year for the actual number of days elapsed and shall accrue daily commencing on the Original Issue Date and be compounded monthly on the first (1st) day of each calendar month. At the option of the Investor, interest payments shall be paid either in cash or in shares of Empire Common Stock (as defined below) (“Interest Shares”) on each of the following dates (or if any such date is not a Business Day, the next following Business Day) (each, an “Interest Payment Date”), except upon the occurrence (and during the continuance) of an Event of Default, in which case interest will accrue and be paid in cash on demand: