restrictions, covenants, reservations and rights of way in
the ordinary course of business for water and sewer lines, telephone and
telegraph lines, electric lines and other utilities or for other similar
purposes, provided that no transfer, conveyance or encumbrance shall materially
impair the utility and operation of the Property or materially adversely affect
the value of the Property or the Net Operating Income of the Property.
If
Borrower shall receive any consideration in connection with any of said
described transfers or conveyances, Borrower shall have the right to use any
such proceeds in connection with any alterations performed in connection
therewith, or required thereby.
In connection with any transfer, conveyance or
encumbrance permitted above, the Lender shall execute and deliver any instrument
reasonably necessary 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.
55
(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-FIVE PERCENT (85%) 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;
(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