LENDER;
(E)
THE
MEZZANINE LENDER SHALL, UPON LENDER'S REQUEST, EXECUTE A
SUBORDINATION AND STANDSTILL INTERCREDITOR AGREEMENT (THE "INTERCREDITOR
AGREEMENT") IN FORM APPROVED BY LENDER, WHICH APPROVAL SHALL NOT BE UNREASONABLY
WITHHELD, CONDITIONED OR DELAYED SO LONG AS THE INTERCREDITOR AGREEMENT IS
OTHERWISE IN CONFORMANCE WITH RATING AGENCY APPROVED FORMS FOR INTERCREDITOR
AGREEMENTS;
(F)
THE NET OPERATING INCOME OF THE PROPERTY, AS REASONABLY
DETERMINED BY LENDER FOR THE 12 MONTH PERIOD THEN MOST RECENTLY ENDED, IS
SUFFICIENT TO SATISFY AN AGGREGATE
69
PROJECTED DEBT SERVICE COVERAGE RATIO (BASED ON THE AGGREGATE OF THE DEBT
SERVICE ON THE LOAN AND THE MEZZANINE LOAN) OF AT LEAST 1.15:1.00;
(G)
LENDER SHALL HAVE APPROVED (SUCH APPROVAL NOT TO BE UNREASONABLY
WITHHELD, CONDITIONED OR DELAYED) THE LOAN DOCUMENTS EVIDENCING AND SECURING THE
MEZZANINE LOAN;
(H)
THE MATURITY OF THE MEZZANINE LOAN SHALL BE NO EARLIER THAN THE
MATURITY DATE;
(I)
THE PROPERTY VALUE, AS DETERMINED BY LENDER BASED ON AN APPRAISAL
DATED NOT MORE THAN SIX (6) MONTHS PRIOR TO THE DATE OF THE MEZZANINE LOAN AND
OTHERWISE REASONABLY ACCEPTABLE TO LENDER, PREPARED, AT BORROWER'S EXPENSE, ON
BEHALF OF LENDER BY AN APPRAISER REASONABLY APPROVED BY LENDER WHICH IS A MEMBER
OF THE APPRAISAL INSTITUTE WITH SUBSTANTIAL EXPERIENCE IN APPRAISING PROPERTIES
SIMILAR TO THE PROPERTY, IS SUFFICIENT TO SATISFY AN AGGREGATE LOAN-TO-VALUE
RATIO (BASED ON THE AGGREGATE BALANCES OF THE LOAN AND THE MEZZANINE LOAN) NOT
IN EXCESS OF 85%;
(J)
MEZZANINE LOAN PAYMENTS SHALL BE MADE SOLELY FROM EXCESS PROPERTY
CASH FLOW DISTRIBUTED BY THE BORROWER TO ITS OWNERS AFTER PAYMENT OF ALL DEBT
SERVICE AND RESERVE PAYMENTS UNDER THE LOAN AND OPERATING EXPENSES FOR THE
PROPERTY OR FROM OTHER FUNDS OF MEZZANINE BORROWER; AND
(K)
BORROWER SHALL ENTER INTO SUCH AMENDMENTS OR SUPPLEMENTS TO THE
LOAN DOCUMENTS AS LENDER MAY REQUIRE IN ORDER TO ESTABLISH A HARD LOCK BOX AND
CASH MANAGEMENT ARRANGEMENT WHEREBY (OR MODIFY THE EXISTING ARRANGEMENT SO THAT)
PROPERTY CASH FLOW IS DEPOSITED AND APPLIED, THROUGH LENDER-CONTROLLED ACCOUNTS,
FIRST TO DEBT SERVICE AND RESERVES REQUIRED UNDER THE LOAN, THEN TO FUND
OPERATING EXPENSES, PRIOR TO ANY DISTRIBUTIONS OF EXCESS PROPERTY CASH FLOW TO
THE BORROWER'S OWNERS FOR PAYMENTS UPON THE MEZZANINE LOAN.
Borrower shall pay or reimburse to Lender all Rating Agency fees and all
reasonable costs and expenses incurred by Lender, including fees and expenses of
Lender's counsel, in connection with the review and documentation concerning the
Mezzanine Loan regardless of whether such Mezzanine Loan is closed.
10.
MISCELLANEOUS
10.1
EXCULPATION. (A) SUBJECT TO THE QUALIFICATIONS BELOW, LENDER SHALL
NOT ENFORCE THE LIABILITY AND OBLIGATION OF BORROWER TO PERFORM AND OBSERVE THE
OBLIGATIONS CONTAINED IN THE LOAN DOCUMENTS BY ANY ACTION OR PROCEEDING WHEREIN
A MONEY JUDGMENT SHALL BE SOUGHT AGAINST BORROWER, EXCEPT THAT LENDER MAY BRING
A FORECLOSURE ACTION, AN ACTION FOR SPECIFIC PERFORMANCE OR ANY OTHER
APPROPRIATE ACTION OR PROCEEDING TO ENABLE LENDER TO ENFORCE AND REALIZE UPON
ITS INTEREST AND RIGHTS UNDER THE LOAN DOCUMENTS, OR IN THE PROPERTY, THE RENTS
OR ANY OTHER COLLATERAL