OR APPROPRIATE TO EVIDENCE ITS CONSENT TO SAID ACTION OR TO
SUBORDINATE THE LIEN OF THE RELATED MORTGAGE TO SUCH EASEMENTS, RESTRICTIONS,
COVENANTS, RESERVATIONS AND RIGHTS OF WAY OR OTHER SIMILAR GRANTS UPON RECEIPT
BY THE LENDER OF: (A) A COPY OF THE INSTRUMENT OF TRANSFER; AND (B) AN OFFICER'S
CERTIFICATE STATING WITH RESPECT TO ANY TRANSFER DESCRIBED ABOVE, THAT SUCH
TRANSFER DOES NOT MATERIALLY IMPAIR THE UTILITY AND OPERATION OF THE PROPERTY OR
MATERIALLY REDUCE THE VALUE OF THE PROPERTY OR THE NET OPERATING INCOME OF THE
PROPERTY.
(G)
LENDER SHALL NOT BE REQUIRED TO DEMONSTRATE
ANY ACTUAL IMPAIRMENT OF ITS SECURITY OR ANY INCREASED RISK OF DEFAULT HEREUNDER
IN ORDER TO DECLARE THE DEBT IMMEDIATELY DUE AND PAYABLE UPON BORROWER'S
TRANSFER WITHOUT LENDER'S CONSENT.
THIS PROVISION SHALL APPLY TO EVERY TRANSFER
REGARDLESS OF WHETHER VOLUNTARY OR NOT, OR WHETHER OR NOT LENDER HAS CONSENTED
TO ANY PREVIOUS TRANSFER.
(H)
NOTWITHSTANDING THE PROVISIONS OF THIS
SECTION 5.2.10, LENDER'S CONSENT SHALL NOT BE REQUIRED IN CONNECTION WITH
TRANSFERS IN THE NATURE OF A PLEDGE BY A MEZZANINE BORROWER (AS DEFINED BELOW)
OF ITS DIRECT AND/OR INDIRECT EQUITY INTEREST IN BORROWER (BUT NOT OF ANY DIRECT
INTEREST IN THE PROPERTY) TO A PERMITTED MEZZANINE LENDER (DEFINED BELOW) AS
SECURITY FOR A LOAN TO SUCH MEZZANINE BORROWER (A "MEZZANINE LOAN") PROVIDED
THAT THE FOLLOWING TERMS AND CONDITIONS ARE SATISFIED:
(I)
NO EVENT OF DEFAULT SHALL THEN EXIST;
(II)
LENDER SHALL HAVE RECEIVED AT LEAST THIRTY (30)
AND NO MORE THAN SIXTY (60) DAYS' PRIOR WRITTEN NOTICE OF THE PROPOSED MEZZANINE
LOAN;
(III)
THE AGGREGATE AMOUNT OF THE LOAN AND THE MEZZANINE
LOAN (AS OF THE EFFECTIVE DATE OF THE MEZZANINE LOAN) SHALL NOT EXCEED EIGHTY
PERCENT (80%) OF THE FAIR MARKET VALUE OF THE PROPERTY AS DETERMINED BY AN
INDEPENDENT MAI APPRAISAL DATED NOT MORE THAN NINETY (90) DAYS PRIOR TO THE
EFFECTIVE DATE OF THE MEZZANINE LOAN AND OTHERWISE ACCEPTABLE TO LENDER;
(IV)
THE AGGREGATE DEBT SERVICE COVERAGE RATIO OF THE LOAN
AND SUCH MEZZANINE LOAN IS AT LEAST 1.20 TO 1.0;
58
(V)
BORROWER SHALL NOT BE OBLIGATED TO REPAY THE
MEZZANINE LOAN NOR INCUR ANY OBLIGATION OR LIABILITY TO THE PERMITTED MEZZANINE
LENDER OR ANY OTHER PERSON WITH RESPECT TO THE MEZZANINE LOAN, AND THE TERMS AND
CONDITIONS OF THE MEZZANINE LOAN, THE COLLATERAL PLEDGED AS SECURITY THEREFOR,
AND THE DOCUMENTS EVIDENCING THE MEZZANINE LOAN, SHALL BE SATISFACTORY TO
LENDER;
(VI)
A NEW SINGLE PURPOSE ENTITY SHALL HAVE BEEN FORMED
THAT WILL DIRECTLY OR INDIRECTLY OWN 100% OF THE EQUITY INTERESTS IN BORROWER
AND PRINCIPAL (THE "MEZZANINE BORROWER"), THE ORGANIZATIONAL DOCUMENTS OF
BORROWER, SUCH MEZZANINE BORROWER, AND THEIR RESPECTIVE CONSTITUENT OWNERS SHALL
BE SATISFACTORY TO LENDER, AND BORROWER AND SUCH MEZZANINE BORROWER SHALL
OTHERWISE SATISFY ALL APPLICABLE RATING AGENCY CRITERIA FOR SINGLE-PURPOSE
ENTITIES, BANKRUPTCY REMOTENESS, AND MEZZANINE BORROWERS;
(VII)
THE PERMITTED MEZZANINE LENDER SHALL HAVE EXECUTED AND
DELIVERED TO LENDER AN INTERCREDITOR AGREEMENT ACCEPTABLE TO LENDER IN ITS SOLE
AND ABSOLUTE DISCRETION, PROVIDED THAT LENDER'S APPROVAL OF SUCH