INTERCREDITOR
AGREEMENT SHALL NOT BE UNREASONABLY WITHHELD, CONDITIONED OR DELAYED SO LONG AS
IT IS OTHERWISE IN CONFORMANCE WITH RATING AGENCY APPROVED FORMS FOR
INTERCREDITOR AGREEMENTS (EXCEPT THAT LENDER SHALL NOT BE REQUIRED TO USE ANY
RATING AGENCY APPROVED FORM OF INTERCREDITOR AGREEMENT IF THE PERMITTED
MEZZANINE LENDER IS AN AFFILIATE OF BORROWER);
(VIII)
BORROWER, PRINCIPAL AND GUARANTOR SHALL HAVE EXECUTED
SUCH ADDITIONAL LOAN DOCUMENTS AND SUCH AMENDMENTS TO AND REAFFIRMATIONS OF THE
EXISTING LOAN DOCUMENTS AS LENDER MAY REQUIRE, INCLUDING ENTERING INTO A CASH
MANAGEMENT ARRANGEMENT WITH LENDER (OR MODIFYING ANY EXISTING CASH MANAGEMENT
REQUIREMENT) TO PROVIDE FOR, AMONG OTHER THINGS, THE PAYMENT OF LENDER-APPROVED
OPERATING EXPENSES AND CAPITAL EXPENSES PRIOR TO THE PAYMENT OF DEBT SERVICE ON
THE MEZZANINE LOAN;
(IX)
THE LENDER UNDER THE MEZZANINE LOAN SHALL BE EITHER
(A) ANY PERSON OR ENTITY SATISFYING THE DEFINITION OF "QUALIFIED TRANSFEREE"
UNDER CLAUSE (II) OF THE DEFINITION OF "QUALIFIED TRANSFEREE" SET FORTH IN THE
FORM INTERCREDITOR AGREEMENT ATTACHED AS APPENDIX VI TO THE STANDARD & POOR'S
U.S. CMBS LEGAL AND STRUCTURAL FINANCE CRITERIA PUBLISHED MAY 1, 2003, BASED ON
THE DEFAULT VALUES FOR MINIMUM TOTAL ASSETS AND CAPITAL/STATUTORY SURPLUS OR
SHAREHOLDERS' EQUITY INCLUDED IN THE DEFINITION OF "ELIGIBILITY REQUIREMENTS" IN
SUCH PUBLICATION OR (B) A THIRD-PARTY INSTITUTIONAL LENDER, INDIVIDUAL INVESTOR
OR AFFILIATE OF BORROWER THAT IN ANY SUCH CASE IS ACCEPTABLE TO LENDER (EITHER
OF THE FOREGOING, A "PERMITTED MEZZANINE LENDER"); AND
(X)
BORROWER SHALL HAVE PAID OR REIMBURSED LENDER FOR
ALL OF ITS COSTS AND EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES AND
DISBURSEMENTS) INCURRED IN CONNECTION WITH THE FOREGOING.
59
VI.
INSURANCE; CASUALTY; CONDEMNATION
SECTION 6.1
INSURANCE.
(A)
BORROWER SHALL
OBTAIN AND MAINTAIN, OR CAUSE TO BE MAINTAINED, INSURANCE FOR BORROWER AND THE
PROPERTY PROVIDING AT LEAST THE FOLLOWING COVERAGES:
(I)
COMPREHENSIVE ALL RISK INSURANCE ("SPECIAL
FORM") INCLUDING, BUT NOT LIMITED TO, LOSS CAUSED BY ANY TYPE OF WINDSTORM OR
HAIL ON THE IMPROVEMENTS AND THE PERSONAL PROPERTY, (A) IN AN AMOUNT EQUAL TO
ONE HUNDRED PERCENT (100%) OF THE "FULL REPLACEMENT COST," WHICH FOR PURPOSES OF
THIS AGREEMENT SHALL MEAN ACTUAL REPLACEMENT VALUE (EXCLUSIVE OF COSTS OF
EXCAVATIONS, FOUNDATIONS, UNDERGROUND UTILITIES AND FOOTINGS) WITH A WAIVER OF
DEPRECIATION; (B) CONTAINING AN AGREED AMOUNT ENDORSEMENT WITH RESPECT TO THE
IMPROVEMENTS AND PERSONAL PROPERTY WAIVING ALL CO-INSURANCE PROVISIONS;
(C) PROVIDING FOR NO DEDUCTIBLE IN EXCESS OF TWENTY-FIVE THOUSAND AND NO/100
DOLLARS ($25,000) FOR ALL SUCH INSURANCE COVERAGE EXCLUDING WINDSTORM AND
EARTHQUAKE AND (D)
CONTAINING AN "ORDINANCE OR LAW COVERAGE" OR "ENFORCEMENT"
ENDORSEMENT IF ANY OF THE IMPROVEMENTS OR THE USE OF THE PROPERTY SHALL AT ANY
TIME CONSTITUTE LEGAL NON-CONFORMING STRUCTURES OR USES.
IN ADDITION, BORROWER
SHALL OBTAIN:
(Y) IF ANY PORTION OF THE IMPROVEMENTS IS CURRENTLY OR AT ANY
TIME IN THE FUTURE LOCATED IN A "SPECIAL FLOOD HAZARD AREA," AS DESIGNATED BY
THE FEDERAL EMERGENCY MANAGEMENT AGENCY OR SUCH OTHER APPLICABLE FEDERAL AGENCY,
FLOOD HAZARD INSURANCE IN AN AMOUNT EQUAL TO THE MAXIMUM AMOUNT AVAILABLE UNDER
THE NATIONAL FLOOD INSURANCE PROGRAM AND IN ADDITION TO THE