MATERIAL
ADVERSE EFFECT.
(D)
AT THE BORROWERS' WRITTEN REQUEST, THE AGENT, FOR AND ON BEHALF OF THE
LENDERS, SHALL ENTER INTO A SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT
AGREEMENT, IN THE FORM (I) IN THE CASE OF LEASES WITH RESPECT TO FIRST LIEN
PROPERTIES, ATTACHED HERETO AS EXHIBIT F OR (II) IN THE CASE OF LEASES WITH
RESPECT TO NEGATIVE PLEDGE PROPERTIES, IN THE FORM APPROVED BY THE LENDER THAT
HOLDS THE PRIOR LIEN ON SUCH NEGATIVE PLEDGE PROPERTY, AND, IN EACH CASE WITH
RESPECT TO ANY NATIONAL TENANT, AS SUCH TENANT AND THE AGENT SHALL REASONABLY
AGREE.
THE AGENT SHALL NOT BE REQUIRED TO PROVIDE ANY SUCH SUBORDINATION,
NON-DISTURBANCE AND ATTORNMENT AGREEMENT WITH RESPECT TO FIRST LIEN PROPERTIES
UNLESS IT SHALL RECEIVE IN EXCHANGE AN ESTOPPEL CERTIFICATE FROM THE TENANT
UNDER THE APPLICABLE LEASE THAT THE TENANT IS NOT AWARE OF ANY MATERIAL DEFAULT
BY THE LANDLORD UNDER THE LEASE.
FOR AVOIDANCE OF DOUBT, THE COSTS AND EXPENSES
OF THE AGENT IN CONNECTION WITH THE REVIEW OF ANY SUCH SUBORDINATION,
NON-DISTURBANCE AND ATTORNMENT AGREEMENT SHALL BE PAID OR REIMBURSABLE BY THE
BORROWERS IN ACCORDANCE WITH SECTION 15.6; PROVIDED THAT SUCH FEES AND EXPENSES
SHALL NOT EXCEED $100 PER SUCH AGREEMENT IN THE CASE OF AGREEMENTS SET FORTH IN
CLAUSE (I) WHICH ARE NOT NEGOTIATED AND OTHERWISE $1,000 PER AGREEMENT.
(E)
WITH RESPECT TO ANY APPROVAL BY THE MAJORITY LENDERS OF A MAJOR LEASE
PURSUANT TO SECTION 9.19(A) OR ANY CONSENT OF THE MAJORITY LENDERS REGARDING ANY
MAJOR LEASE REFERRED TO IN SECTION 9.19(B), IF NO RESPONSE THERETO IS RECEIVED
BY THE GENERAL PARTNER FROM THE AGENT WITHIN
TEN (10) BUSINESS DAYS AFTER A
REQUEST FOR SUCH APPROVAL OR CONSENT IS DELIVERED IN WRITING TO THE AGENT, THEN
SUCH APPROVAL OR CONSENT (AS APPLICABLE) SHALL BE DEEMED TO HAVE BEEN GIVEN BY
THE MAJORITY LENDERS.
Section 9.20
Restricted Payments.
No Obligor shall, nor shall it permit
any other Debtor to, make any Restricted Payment except:
(A)
THE DEBTORS MAY MAKE RESTRICTED PAYMENTS TO ANY OTHER DEBTOR (AND, IN
THE CASE OF DEBTORS (OTHER THAN THE GENERAL PARTNER) THAT ARE NOT WHOLLY-OWNED
SUBSIDIARIES, TO OTHER EQUITY HOLDERS IN ACCORDANCE WITH AND TO THE EXTENT
PROVIDED FOR IN THEIR GOVERNING ORGANIZATIONAL DOCUMENTS AS IN EFFECT ON THE
CLOSING DATE OR BY APPLICABLE LAW);
(B)
RESTRICTED PAYMENTS TO ANY DEBTOR AND TO THE GENERAL PARTNER AND TO
ITS EQUITYHOLDERS IN ORDER TO MAINTAIN ITS REIT STATUS UNDER THE CODE; PROVIDED
THAT, IN THE CASE OF RESTRICTED PAYMENTS TO THE EQUITYHOLDERS OF THE GENERAL
PARTNER, THE CASH PORTION OF ANY SUCH RESTRICTED PAYMENTS SHALL NOT EXCEED THE
MINIMUM CASH PORTION NECESSARY TO MAINTAIN SUCH
70
REIT STATUS, TAKING INTO ACCOUNT IRS REVENUE PROCEDURE 2009-15 AND ANY
COMPARABLE GUIDANCE;
(C)
RESTRICTED PAYMENTS BY A DEBTOR TO A SUBSIDIARY OF THE BORROWERS THAT
IS NOT A DEBTOR TO ENABLE SUCH SUBSIDIARY OR ANOTHER SUBSIDIARY TO SATISFY ANY
TAX LIABILITIES (AFTER TAKING INTO ACCOUNT ANY OFF-SETTING DEDUCTIONS) THAT ARE
ATTRIBUTABLE TO THE BUSINESS OR ACTIVITIES OF ANY DEBTOR