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 80%;
(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
77
(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 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.
9.5
LETTERS OF CREDIT.
EACH LETTER OF CREDIT
DELIVERED BY BORROWER UNDER THIS AGREEMENT SHALL BE ADDITIONAL SECURITY FOR THE
PAYMENT OF THE DEBT.
IN THE EVENT LENDER TRANSFERS ANY LETTER OF CREDIT TO ANY
SUCCESSOR OR ASSIGNEE OF LENDER, AND THE ISSUER OF THE LETTER OF CREDIT CHARGES
A FEE IN CONNECTION WITH SUCH TRANSFER, BORROWER SHALL PAY OR REIMBURSE LENDER
FOR SUCH TRANSFER FEE.
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 GIVEN TO LENDER PURSUANT TO THE
LOAN DOCUMENTS; PROVIDED, HOWEVER, THAT, EXCEPT AS SPECIFICALLY PROVIDED HEREIN,
ANY JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE ENFORCEABLE AGAINST
BORROWER ONLY TO THE EXTENT OF BORROWER'S INTEREST IN THE PROPERTY, IN THE RENTS
AND IN ANY OTHER COLLATERAL GIVEN TO LENDER, AND LENDER SHALL NOT SUE FOR, SEEK
OR DEMAND ANY DEFICIENCY JUDGMENT AGAINST BORROWER IN ANY SUCH ACTION OR
PROCEEDING UNDER OR BY REASON OF OR UNDER OR IN CONNECTION WITH ANY LOAN
DOCUMENT.
THE PROVISIONS OF THIS SECTION SHALL NOT, HOWEVER, (I) CONSTITUTE A
WAIVER, RELEASE OR IMPAIRMENT OF ANY OBLIGATION EVIDENCED OR SECURED BY ANY LOAN
DOCUMENT;