severance.
9.2
Costs and Expenses.
Notwithstanding anything to the contrary
contained in this Article 9, Borrower shall not be required to incur
out-of-pocket expenses in the performance of its obligations under Sections
9.1.1 (other than with respect to the delivery or update of non-consolidation
opinions), 9.1.2 and 9.1.7.]
9.3
Mezzanine Loan.
Lender agrees to permit owner(s) of direct or
indirect equity interests in Borrower (the "Mezzanine Borrower", provided
however that in no event shall any
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entity required hereunder to be a Special Purpose Bankruptcy Remote Entity be a
Mezzanine Borrower) to obtain a mezzanine loan (the "Mezzanine Loan") the
proceeds of which may be used solely to make a capital contribution to Borrower
and in turn used by Borrower to pay Approved Leasing Expenses incurred with
respect to Leases entered into after the date hereof, subject to satisfaction of
the following conditions (provided that no more than one Mezzanine Loan shall be
permitted during the term of the Loan):
(A)
NO EVENT OF DEFAULT SHALL EXIST;
(B)
THE MEZZANINE LOAN MAY BE SECURED BY A PLEDGE BY MEZZANINE BORROWER OF
SUCH MEZZANINE BORROWER'S DIRECT OR INDIRECT EQUITY INTEREST IN BORROWER, BUT
NOT BY THE PROPERTY OR ANY ASSETS OF BORROWER OR OF ANY OTHER ENTITY REQUIRED
HEREUNDER TO BE A SINGLE PURPOSE BANKRUPTCY REMOTE ENTITY, AND NEITHER BORROWER
NOR ANY OTHER ENTITY REQUIRED HEREUNDER TO BE A SPECIAL PURPOSE BANKRUPTCY
REMOTE ENTITY SHALL IN ANY WAY BE OBLIGATED IN CONNECTION WITH THE MEZZANINE
LOAN (EXCEPT FOR NON-MONETARY OBLIGATIONS REASONABLY ACCEPTABLE TO LENDER THAT
ARE CUSTOMARY IN CONNECTION WITH MEZZANINE LOANS INVOLVING SECURITIZED SENIOR
LOANS);
(C)
IF A SECONDARY MARKET TRANSACTION HAS OCCURRED, BORROWER SHALL HAVE
OBTAINED (AND DELIVERED TO LENDER) A RATING COMFORT LETTER WITH RESPECT TO THE
PROPOSED MEZZANINE LOAN;
(D)
THE MEZZANINE LOAN LENDER (THE "MEZZANINE LENDER") SHALL BE AN ACCEPTABLE
MEZZANINE 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 PROJECTED DEBT SERVICE COVERAGE RATIO (BASED ON THE
AGGREGATE OF THE DEBT SERVICE ON THE LOAN AND THE MEZZANINE LOAN) OF AT LEAST
1.00:1.00;
(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 A FIRREA 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