Common use of Mezzanine Loan Clause in Contracts

Mezzanine Loan. Mezzanine Lender shall have funded Mezzanine Lender’s Percentage of such Future Advance; provided, however, if Mezzanine Lender shall have failed to fund Mezzanine Lender’s Percentage of any Future Advance, and Mezzanine Borrower has satisfied all conditions precedent to such Future Advance under the Mezzanine Loan Agreement, such that Mezzanine Lender has become a “Defaulting Lender” (as defined in the Mezzanine Loan Agreement) (a “Mezzanine Funding Failure”), Borrower shall be permitted to “fund” Mezzanine Lender’s Percentage of any such Future Advance (i.e., Borrower shall provide to Administrative Agent evidence acceptable to Administrative Agent that it has sufficient funds on deposit to be allocated to the Approved Costs which were to be paid by Mezzanine Lender’s Percentage of such Future Advance) provided that (x) no Event of Default is continuing, (y) Mezzanine Borrower is actively pursuing its remedies against such Defaulting Lender (as defined in the Mezzanine Loan Agreement) in accordance with the terms of the Mezzanine Loan Agreement, including, without limitation, Section 7.1 thereof and (z) Borrower delivers to Administrative Agent, for the benefit of Lenders, a Letter of Credit in the face amount of the remaining Future Funding Amount (as defined in the Mezzanine Loan Agreement) or deposits with Administrative Agent cash in the amount of the remaining Future Funding Amount (as defined in the Mezzanine Loan Agreement) (any such collateral, the “Funding Collateral”). If Borrower elects to deliver to Administrative Agent, for the benefit of Lenders, a Letter of Credit pursuant to this subclause, then the Letter of Credit provisions set forth in Schedule VIII shall be applicable. Following any Mezzanine Funding Failure, if each of clause (x), (y) and (z) above has been satisfied by Mezzanine Borrower or Borrower, as applicable, and Borrower has not funded Mezzanine Lender’s Percentage of such Future Advance by the date that is two (2) Business Days after the date Mezzanine Lender was required to fund, then Administrative Agent may draw upon the Funding Collateral in an amount equal to Mezzanine Lender’s Percentage of such Future Advance and shall release the same to Borrower (to be applied by Borrower and/or Mezzanine Borrower in accordance with its Requisition). If Borrower or Mezzanine Lender funds Mezzanine Lender’s Percentage of any Future Advance (to be applied by Borrower and/or Mezzanine Borrower in accordance with its Requisition), so long as no Event of Default is continuing, Administrative Agent will release a corresponding amount of the Funding Collateral to Borrower (to be used by Borrower as determined by Borrower).

Mezzanine Loan. (a) Lender and Borrowers have contemporaneously with the negotiation of the Loan Documents also negotiated a complete set of all of the material mezzanine loan documents, true, correct and complete copies of which are attached as Exhibits 1-12 hereto (the “Proposed Mezzanine Lender shall Loan Documents”). The Proposed Mezzanine Loan Documents have funded Mezzanine been negotiated in anticipation of Lender’s Percentage , subsequent to the Closing Date, splitting off a portion of such Future Advance; provided, however, if Mezzanine Lender shall have failed the Loan to fund Mezzanine Lender’s Percentage of any Future Advancecreate, and enter into, a mezzanine loan (the “Anticipated Mezzanine Borrower has satisfied all conditions precedent to such Future Advance under the Mezzanine Loan Agreement, such that Mezzanine Lender has become a “Defaulting Lender” (as defined in the Mezzanine Loan Agreement) (a “Mezzanine Funding FailureLoan”), Borrower which Anticipated Mezzanine Loan: (i) shall be permitted to “fund” Mezzanine Lender’s Percentage of any such Future Advance on substantially the same terms as the Loan (i.e., Borrower shall provide to Administrative Agent evidence acceptable to Administrative Agent that it has sufficient funds on deposit to be allocated to the Approved Costs which were extent applicable to be paid by Mezzanine Lender’s Percentage of such Future Advancea mezzanine loan) provided that as embodied in this Agreement and the other Loan Documents (x) no Event of Default is continuingto the extent applicable to a mezzanine loan), (y) Mezzanine Borrower is actively pursuing its remedies against such Defaulting Lender (as defined in the Mezzanine Loan Agreement) in accordance with the terms of the Mezzanine Loan Agreement, includingexcept that, without limitation, Section 7.1 thereof and (z) Borrower delivers the non-default interest rate applicable to Administrative Agent, for the benefit of Lenders, a Letter of Credit in the face amount of the remaining Future Funding Amount (as defined in the such Anticipated Mezzanine Loan Agreement) or deposits with Administrative Agent cash in may be greater than the amount of the remaining Future Funding Amount (as defined in the Mezzanine Loan Agreement) (any such collateral, the “Funding Collateral”). If Borrower elects to deliver to Administrative Agent, for the benefit of Lenders, a Letter of Credit pursuant to this subclause, then the Letter of Credit provisions set forth in Schedule VIII shall be applicable. Following any Mezzanine Funding Failure, if each of clause (x), (y) and (z) above has been satisfied by Mezzanine Borrower or Borrower, as applicable, and Borrower has not funded Mezzanine Lender’s Percentage of such Future Advance by the date that is two (2) Business Days after the date Mezzanine Lender was required to fund, then Administrative Agent may draw upon the Funding Collateral in an amount equal to Mezzanine Lender’s Percentage of such Future Advance and shall release the same to Borrower (to be applied by Borrower and/or Mezzanine Borrower in accordance with its Requisition). If Borrower or Mezzanine Lender funds Mezzanine Lender’s Percentage of any Future Advance (to be applied by Borrower and/or Mezzanine Borrower in accordance with its Requisition)Interest Rate, so long as no Event of Default is continuing, Administrative Agent will release a corresponding amount the weighted non-default interest rate of the Funding Collateral Loan and such Anticipated Mezzanine Loan shall, at the time of the creation of such Anticipated Mezzanine Loan, equal the Interest Rate; (ii) shall have a maturity date of not earlier than the Maturity Date for the Loan; and (iii) shall be made utilizing the Proposed Mezzanine Loan Documents, together with such other ancillary documents and deliveries as are customary or necessary in Lender’s reasonable judgment and, to Borrower (the extent applicable, are either in substantially the same form as were executed and delivered in connection with the Loan or are otherwise reasonably acceptable to Mezzanine Borrowers. From and after the consummation, if ever, of the Anticipated Mezzanine Loan, such Anticipated Mezzanine Loan shall thereafter be used by Borrower referred to herein and in the other Loan Documents as determined by Borrower)the “Mezzanine Loan”.

Mezzanine Loan. Mezzanine Lender shall have funded Mezzanine Lender’s Percentage (a) Subject to the terms of such Future Advance; provided, however, if Mezzanine Lender shall have failed to fund Mezzanine Lender’s Percentage of any Future Advance, and Mezzanine Borrower has satisfied all conditions precedent to such Future Advance under the Mezzanine Loan this Agreement, such Seller agrees that Mezzanine Lender has become a “Defaulting Lender” at the Closing, Seller or another wholly owned subsidiary of the Commingled Pension Trust Fund (as defined in the Mezzanine Loan AgreementStrategic Property) (a “Mezzanine Funding Failure”)of JPMorgan Chase Bank, Borrower shall be permitted to “fund” Mezzanine Lender’s Percentage of any such Future Advance (i.e., Borrower N.A. shall provide to Administrative Agent evidence acceptable to Administrative Agent that it has sufficient funds on deposit to be allocated to Purchaser a $47,000,000 mezzanine loan secured by a pledge of all of the Approved Costs which were to be paid by ownership interests of KBSII REIT Acquisition II, LLC (“Mezzanine Lender’s Percentage of such Future AdvanceBorrower”) provided that in Purchaser (x) no Event of Default is continuing, (y) the “Mezzanine Borrower is actively pursuing its remedies against such Defaulting Lender (as defined in the Loan”). The Mezzanine Loan Agreementshall be evidenced by the documents and instruments attached hereto as Exhibit S as well as appropriate UCC financing statements (the “Mezzanine Loan Documents”). The Mezzanine Loan shall be subordinate to a first mortgage loan (the “First Mortgage Loan”) in accordance with made by New York Life Insurance Company or another institutional lender reasonably approved by Seller (the “First Mortgage Lender”). The principal amount of the First Mortgage Loan shall not exceed $94,000,000, and the interest rate payable (other than during default) under the First Mortgage Loan Documents shall not exceed six and 50/100 percent (6.5%) per annum. Purchaser and Seller hereby approve the terms and conditions of the Mezzanine Loan Agreement, including, without limitation, Section 7.1 thereof Documents. The terms and (z) Borrower delivers provisions of the First Mortgage Loan shall be the same or more favorable to Administrative Agent, for the benefit of Lenders, a Letter of Credit First Mortgage Lender as the terms and provisions contained in the face amount loan documents attached to the email from L. Xxxxx Xxxxxxx to Xxxxx Xxxxxxxxx, time stamped 5:07 p.m. (EST) on July 23, 2008, as amended by the comments of L. Xxxxx Xxxxxxx in the email from L. Xxxxx Xxxxxxx to Xxxxx X. Xxxxxx, Xxxxxxx Xxxx, Xxxx Xxxxx and Xxx Xxxxxxxxxx, time stamped 5:11 p.m. (EST) on July 27, 2008 (“Requested Changes”), to the extent that such comments shall be acceptable to the First Mortgage Lender (the “First Mortgage Loan Documents”). The Mezzanine Loan Documents shall be modified in a manner consistent with the Requested Changes to the extent the Requested Changes are acceptable to the First Mortgage Lender. Notwithstanding anything to the contrary contained herein, after receipt of the remaining Future Funding Amount (as defined in First Mortgage Loan and prior to the Closing, the maturity date of the Mezzanine Loan Agreement) or deposits will be consistent with Administrative Agent cash the date set forth in the amount of First Mortgage Loan Documents that the remaining Future Funding Amount (as defined in Borrower is obligated to cause the Mezzanine Loan Agreement) (any such collateral, the “Funding Collateral”). If Borrower elects to deliver to Administrative Agent, for the benefit of Lenders, a Letter of Credit pursuant to this subclause, then the Letter of Credit provisions set forth in Schedule VIII shall be applicable. Following any Mezzanine Funding Failure, if each of clause (x), (y) and (z) above has been satisfied by Mezzanine Borrower or Borrower, as applicable, and Borrower has not funded Mezzanine Lender’s Percentage of such Future Advance by the date that is two (2) Business Days after the date Mezzanine Lender was required to fund, then Administrative Agent may draw upon the Funding Collateral in an amount equal to Mezzanine Lender’s Percentage of such Future Advance and shall release the same to Borrower (to be applied by Borrower and/or Mezzanine Borrower paid in accordance with its Requisition). If Borrower or Mezzanine Lender funds Mezzanine Lender’s Percentage of any Future Advance (to be applied by Borrower and/or Mezzanine Borrower in accordance with its Requisition), so long as no Event of Default is continuing, Administrative Agent will release a corresponding amount of the Funding Collateral to Borrower (to be used by Borrower as determined by Borrower)full.

Mezzanine Loan. (a) Lender and Borrowers have contemporaneously with the negotiation of the Loan Documents also negotiated a complete set of all of the material mezzanine loan documents, true, correct and complete copies of which are attached as Exhibits 1-12 hereto (the “Proposed Mezzanine Lender shall Loan Documents”). The Proposed Mezzanine Loan Documents have funded Mezzanine been negotiated in anticipation of Lender’s Percentage , subsequent to the Closing Date, splitting off a portion of such Future Advance; provided, however, if Mezzanine Lender shall have failed the Loan to fund Mezzanine Lender’s Percentage of any Future Advancecreate, and enter into, a mezzanine loan (the “Anticipated Mezzanine Borrower has satisfied all conditions precedent to such Future Advance under the Mezzanine Loan Agreement, such that Mezzanine Lender has become a “Defaulting Lender” (as defined in the Mezzanine Loan Agreement) (a “Mezzanine Funding FailureLoan”), Borrower which Anticipated Mezzanine Loan: (i) shall be permitted to “fund” Mezzanine Lender’s Percentage of any such Future Advance on substantially the same terms as the Loan (i.e., Borrower shall provide to Administrative Agent evidence acceptable to Administrative Agent that it has sufficient funds on deposit to be allocated to the Approved Costs which were extent applicable to be paid by Mezzanine Lender’s Percentage of such Future Advancea mezzanine loan) provided that as embodied in this Agreement and the other Loan Documents (x) no Event of Default is continuingto the extent applicable to a mezzanine loan), (y) Mezzanine Borrower is actively pursuing its remedies against such Defaulting Lender (as defined in the Mezzanine Loan Agreement) in accordance with the terms of the Mezzanine Loan Agreement, includingexcept that, without limitation, Section 7.1 thereof and (z) Borrower delivers the non-default interest rate applicable to Administrative Agent, for the benefit of Lenders, a Letter of Credit in the face amount of the remaining Future Funding Amount (as defined in the such Anticipated Mezzanine Loan Agreement) or deposits with Administrative Agent cash in may be greater than the amount of the remaining Future Funding Amount (as defined in the Mezzanine Loan Agreement) (any such collateral, the “Funding Collateral”). If Borrower elects to deliver to Administrative Agent, for the benefit of Lenders, a Letter of Credit pursuant to this subclause, then the Letter of Credit provisions set forth in Schedule VIII shall be applicable. Following any Mezzanine Funding Failure, if each of clause (x), (y) and (z) above has been satisfied by Mezzanine Borrower or Borrower, as applicable, and Borrower has not funded Mezzanine Lender’s Percentage of such Future Advance by the date that is two (2) Business Days after the date Mezzanine Lender was required to fund, then Administrative Agent may draw upon the Funding Collateral in an amount equal to Mezzanine Lender’s Percentage of such Future Advance and shall release the same to Borrower (to be applied by Borrower and/or Mezzanine Borrower in accordance with its Requisition). If Borrower or Mezzanine Lender funds Mezzanine Lender’s Percentage of any Future Advance (to be applied by Borrower and/or Mezzanine Borrower in accordance with its Requisition)Interest Rate, so long as no Event of Default is continuing, Administrative Agent will release a corresponding amount the weighted non-default interest rate of the Funding Collateral Loan and such Anticipated Mezzanine Loan shall, at the time of the creation of such Anticipated Mezzanine Loan, equal the Interest Rate; (ii) shall have a maturity date of not earlier than the Maturity Date for the Loan; and (iii) shall be made utilizing the Proposed Mezzanine Loan Documents, together with such other ancillary documents and deliveries as are customary or necessary in Lender's reasonable judgment and, to Borrower (the extent applicable, are either in substantially the same form as were executed and delivered in connection with the Loan or are otherwise reasonably acceptable to Mezzanine Borrowers. From and after the consummation, if ever, of the Anticipated Mezzanine Loan, such Anticipated Mezzanine Loan shall thereafter be used by Borrower referred to herein and in the other Loan Documents as determined by Borrower)the “Mezzanine Loan”.

Mezzanine Loan. Mezzanine Borrower and Lender shall have funded Mezzanine agree that Lender may in addition to its rights under Section 10.1, at any time and at Lender’s Percentage sole cost and expense, elect to reduce the mortgage debt on the Property and re-size the principal amount of such Future Advance; provided, however, if Mezzanine Lender shall have failed the Loan and allocate the reduced portion to fund Mezzanine Lender’s Percentage of any Future Advance, and Mezzanine Borrower has satisfied all conditions precedent to such Future Advance under the Mezzanine Loan Agreement, such that Mezzanine Lender has become a “Defaulting Lender” (as defined in the Mezzanine Loan Agreement) mezzanine loan (a “Mezzanine Funding FailureLoan”); provided that (a) the total loan amounts for the Loan and the Mezzanine Loan immediately after the effective date of such modification shall equal the outstanding principal amount of the Loan immediately prior to such modification, (b) the weighted average of the interest rates for the Loan and the Mezzanine Loan immediately after the effective date of such modification shall equal the interest rate of the original Note immediately prior to such modification, and (c) such election shall have no material adverse economic effect upon Borrower or Guarantor. In connection with the foregoing, Borrower agrees, at Lender’s sole cost and expense, to (i) create a new Single-Purpose Entity which will become the mezzanine borrower (a “Mezzanine Borrower”), Borrower shall be permitted to “fund” Mezzanine Lender’s Percentage of any such Future Advance (i.e., Borrower shall provide to Administrative Agent evidence acceptable to Administrative Agent that it has sufficient funds on deposit to be allocated to and cause the Approved Costs which were to be paid by Mezzanine Lender’s Percentage of such Future Advance) provided that (x) no Event of Default is continuing, (y) Mezzanine Borrower is actively pursuing its remedies against such Defaulting and any members in Mezzanine Borrower to enter into the documents deemed reasonably necessary by Lender (as defined in to evidence the Mezzanine Loan Agreement) in accordance with the terms of the Mezzanine Loan AgreementLoan, including, without limitation, Section 7.1 thereof and (z) Borrower delivers to Administrative Agent, for the benefit of Lendersa promissory note, a Letter pledge and security agreement and a mezzanine loan agreement (collectively, the “Mezzanine Loan Documents”), which Mezzanine Loan Documents shall be subject to the review and approval of Credit Borrower, not to be unreasonably withheld or delayed, (ii) cause Mezzanine Borrower to pledge to Lender the equity interests in the face amount Borrower, (iii) execute and deliver such documents and other agreements reasonably required by Lender to modify the terms of the remaining Future Funding Amount (as defined Loan Documents, including, without limitation, an amendment to the Note and the other Loan Documents, an endorsement to the Title Insurance Policy reflecting a change in the insured amount thereunder, legal opinions and other customary loan documentation, provided, that, cumulatively, the Mezzanine Loan AgreementDocuments and the amendment to the Loan Documents and any other actions taken pursuant to this Section 10.5 will not (x) increase in any material respect the obligations, or deposits with Administrative Agent cash in decrease the amount rights, of Mezzanine Borrower and Borrower under the remaining Future Funding Amount (as defined in Loan Documents and the Mezzanine Loan Agreement) (any such collateralDocuments, the “Funding Collateral”). If Borrower elects other than to deliver to Administrative Agent, for the benefit of Lenders, a Letter of Credit pursuant to this subclause, then the Letter of Credit provisions set forth in Schedule VIII shall be applicable. Following any Mezzanine Funding Failure, if each of clause (x), de minimis extent or (y) and (z) above has been satisfied by Mezzanine Borrower change the economic or Borrower, as applicable, and Borrower has not funded Mezzanine Lender’s Percentage of such Future Advance by the date that is two (2) Business Days after the date Mezzanine Lender was required to fund, then Administrative Agent may draw upon the Funding Collateral in an amount equal to Mezzanine Lender’s Percentage of such Future Advance and shall release the same to Borrower (to be applied by Borrower and/or Mezzanine Borrower in accordance with its Requisition). If Borrower or Mezzanine Lender funds Mezzanine Lender’s Percentage of any Future Advance (to be applied by Borrower and/or Mezzanine Borrower in accordance with its Requisition), so long as no Event of Default is continuing, Administrative Agent will release a corresponding amount other material terms of the Funding Collateral to Loan (taken as a whole with the Mezzanine Loan); provided, however, that Borrower (to be used by Borrower as determined by Borrower)recognizes that, in the case of prepayments, the weighted average interest rate of the Loan may increase.

Mezzanine Loan. Mezzanine Lender shall have funded Mezzanine Lender’s Percentage of such Future Advance; providedPrior to the Effective Date, howeverPacific Office Properties Trust/Mezzanine, if Mezzanine Lender shall have failed to fund Mezzanine Lender’s Percentage of any Future AdvanceLLC, and Mezzanine Borrower has satisfied all conditions precedent to such Future Advance under a Delaware limited liability company (the Mezzanine Loan Agreement, such that Mezzanine Lender has become a “Defaulting Lender” (as defined in the Mezzanine Loan Agreement) (a “Mezzanine Funding FailureBorrower”), which entity is the sole member of each of the Owners, and City Square Otera LLC, a Delaware limited liability company (as successor-in-interest to CWCapital LLC, a Massachusetts limited liability company (“CW”), the “Mezzanine Lender”), have entered into that certain Omnibus Termination of Mezzanine Loan Documents and Release (the “Mezzanine Modification Agreement”), pursuant to which (among other things) the Mezzanine Lender has, in connection with that certain mezzanine loan made to the Mezzanine Borrower on August 18, 2005, in the original principal amount of $28,500,000 (the “Mezzanine Loan”), agreed (subject to the terms and conditions set forth therein) to accept a modified principal amount as repayment thereof in lieu of the amounts outstanding thereunder, and, upon payment of such modified principal amount, such Mezzanine Loan shall be permitted to “fund” Mezzanine Lender’s Percentage of any such Future Advance (i.e., Borrower shall provide to Administrative Agent evidence acceptable to Administrative Agent that it has sufficient funds on deposit to be allocated to the Approved Costs which were to be paid by Mezzanine Lender’s Percentage of such Future Advance) provided that (x) no Event of Default is continuing, (y) Mezzanine Borrower is actively pursuing its remedies against such Defaulting Lender (as defined off and satisfied in the Mezzanine Loan Agreement) in accordance full. In connection with the terms foregoing, AG-POP Parent is causing the payoff of the Mezzanine Loan Agreementand, solely with respect to the payment of the reduced outstanding principal balance of the Mezzanine Loan set forth in the Mezzanine Modification Agreement and no other obligation, AG-POP Parent is agreeing to assume the Mezzanine Loan as it relates to such payment obligation and the Release of the Mezzanine Security Instruments (as hereinafter defined) immediately following the occurrence of the items in Section 1(f) above (including, without limitation, the recordation of the Unit Deeds), which release shall be processed through Escrow Holder in such manner as is mutually acceptable to the Mezzanine Borrower and the New Owners, including, without limitation, Section 7.1 thereof and (z) Borrower delivers pursuant to Administrative Agentthat certain Escrow Instruction Letter, for the benefit of Lenders, a Letter of Credit in the face amount dated as of the remaining Future Funding Amount Effective Date, made by the Mezzanine Borrower, Mezzanine Lender, the New Owners and certain other parties thereto, and acknowledged and accepted by Escrow Holder (the “Escrow Instruction Letter”). For the purposes of this Agreement, the “Release of the Mezzanine Security Instruments” shall mean the execution, delivery and, as defined appropriate, recording of all of the documents set forth in Section IV of the Escrow Instruction Letter, with the result that the assignments, financing statements and other security instruments and documents securing and evidencing the Mezzanine Loan Agreement) or deposits with Administrative Agent cash in the amount of the remaining Future Funding Amount (as defined in the Mezzanine Loan Agreement) (any such collateral, the “Funding CollateralMezzanine Security Instruments”) are released (by recorded instrument(s) as applicable). If Borrower elects to deliver to Administrative AgentNotwithstanding the foregoing, POP Member acknowledges and agrees that except for the benefit of Lenders, a Letter of Credit pursuant to this subclause, then the Letter of Credit provisions set forth in Schedule VIII shall be applicable. Following any Mezzanine Funding Failure, if each of clause (x), (y) and (z) above has been satisfied by Mezzanine Borrower or Borrower, as applicable, and Borrower has not funded Mezzanine Lender’s Percentage of such Future Advance by the date that is two (2) Business Days after the date Mezzanine Lender was required to fund, then Administrative Agent may draw upon the Funding Collateral in an amount equal to Mezzanine Lender’s Percentage of such Future Advance and shall release the same to Borrower (to be applied by Borrower and/or Mezzanine Borrower in accordance with its Requisition). If Borrower or Mezzanine Lender funds Mezzanine Lender’s Percentage of any Future Advance (to be applied by Borrower and/or Mezzanine Borrower in accordance with its Requisition), so long as no Event of Default is continuing, Administrative Agent will release a corresponding amount of the Funding Collateral to Borrower (to be used by Borrower as determined by Borrower).foregoing agreement to

Mezzanine Loan. Mezzanine (a) Lender shall have funded the option (the “Mezzanine Option”) at any time to divide the Loan into two parts, a mortgage loan and a mezzanine loan, provided, that (i) the total loan amounts for such mortgage loan and such mezzanine loan shall equal the then outstanding amount of the Loan immediately prior to Xxxxxx’s exercise of the Mezzanine Option, (ii) the weighted average interest rate of such mortgage loan and mezzanine loan shall at all times (other than during the continuance of an Event of Default or in connection with a mandatory prepayment pursuant to Section 2.4.2 hereof) equal the Interest Rate, except that Borrower acknowledges and agrees that the weighted average coupon between the Loan and such mezzanine loan may change in connection with an Event of Default or a prepayment of the Loan, including the application of insurance proceeds or condemnation awards following a Casualty or Condemnation, and (iii) the Maturity Date shall not change. Borrower shall cooperate with Lender in Lender’s Percentage exercise of such Future Advance; provided, however, if Mezzanine Lender shall have failed to fund Mezzanine Lender’s Percentage of any Future Advance, and Mezzanine Borrower has satisfied all conditions precedent to such Future Advance under the Mezzanine Option in good faith and in a timely manner, which such cooperation shall include, but not be limited to, (i) executing such amendments to the Loan AgreementDocuments and Borrower’s organizational documents as may be reasonably requested by Xxxxxx or requested by the Rating Agencies, such that (ii) creating one or more Single Purpose Entities (the “New Mezzanine Lender has become a “Defaulting Lender” (as defined in the Mezzanine Loan Agreement) (a “Mezzanine Funding FailureBorrower”), which such New Mezzanine Borrower shall be permitted to (A) own, directly or indirectly, 100% of the equity ownership interests in Borrower (the “fund” Mezzanine Lender’s Percentage of any Equity Collateral”), and (B) together with such Future Advance (i.e., Borrower shall provide to Administrative Agent evidence acceptable to Administrative Agent that it has sufficient funds on deposit to be allocated to the Approved Costs which were to be paid by Mezzanine Lender’s Percentage constituent equity owners of such Future Advance) provided that (x) no Event of Default is continuing, (y) New Mezzanine Borrower is actively pursuing its remedies against as may be designated by Lender, execute such Defaulting agreements, instruments and other documents as may be required by Lender (as defined in the Mezzanine Loan Agreement) in accordance connection with the terms of the Mezzanine Loan Agreement, mezzanine loan (including, without limitation, Section 7.1 thereof a promissory note evidencing the mezzanine loan and a pledge and security agreement pledging the Equity Collateral to Lender as security for the mezzanine loan); and (ziii) Borrower delivers delivering such opinions, title endorsements, UCC title insurance policies, documents and/or instruments relating to Administrative Agent, for the benefit of Lenders, a Letter of Credit in Property Documents and other materials as may be required by Lender or the face amount of the remaining Future Funding Amount (as defined in the Mezzanine Loan Agreement) or deposits with Administrative Agent cash in the amount of the remaining Future Funding Amount (as defined in the Mezzanine Loan Agreement) (any such collateral, the “Funding Collateral”). If Borrower elects to deliver to Administrative Agent, for the benefit of Lenders, a Letter of Credit pursuant to this subclause, then the Letter of Credit provisions set forth in Schedule VIII shall be applicable. Following any Mezzanine Funding Failure, if each of clause (x), (y) and (z) above has been satisfied by Mezzanine Borrower or Borrower, as applicable, and Borrower has not funded Mezzanine Lender’s Percentage of such Future Advance by the date that is two (2) Business Days after the date Mezzanine Lender was required to fund, then Administrative Agent may draw upon the Funding Collateral in an amount equal to Mezzanine Lender’s Percentage of such Future Advance and shall release the same to Borrower (to be applied by Borrower and/or Mezzanine Borrower in accordance with its Requisition). If Borrower or Mezzanine Lender funds Mezzanine Lender’s Percentage of any Future Advance (to be applied by Borrower and/or Mezzanine Borrower in accordance with its Requisition), so long as no Event of Default is continuing, Administrative Agent will release a corresponding amount of the Funding Collateral to Borrower (to be used by Borrower as determined by Borrower)Rating Agencies.

Mezzanine Loan. (a) Lender and Borrower have contemporaneously with the negotiation of the Loan Documents also negotiated a complete set of all of the material mezzanine loan documents, true, correct and complete copies of which are attached as Exhibits 1-12 hereto (the “Proposed Mezzanine Lender shall Loan Documents”). The Proposed Mezzanine Loan Documents have funded Mezzanine been negotiated in anticipation of Lender’s Percentage , subsequent to the Closing Date, splitting off a portion of such Future Advance; provided, however, if Mezzanine Lender shall have failed the Loan to fund Mezzanine Lender’s Percentage of any Future Advancecreate, and enter into, a mezzanine loan (the “Anticipated Mezzanine Borrower has satisfied all conditions precedent to such Future Advance under the Mezzanine Loan Agreement, such that Mezzanine Lender has become a “Defaulting Lender” (as defined in the Mezzanine Loan Agreement) (a “Mezzanine Funding FailureLoan”), Borrower which Anticipated Mezzanine Loan: (i) shall be permitted to “fund” Mezzanine Lender’s Percentage of any such Future Advance on substantially the same terms as the Loan (i.e., Borrower shall provide to Administrative Agent evidence acceptable to Administrative Agent that it has sufficient funds on deposit to be allocated to the Approved Costs which were extent applicable to be paid by Mezzanine Lender’s Percentage of such Future Advancea mezzanine loan) provided that as embodied in this Agreement and the other Loan Documents (x) no Event of Default is continuingto the extent applicable to a mezzanine loan), (y) Mezzanine Borrower is actively pursuing its remedies against such Defaulting Lender (as defined in the Mezzanine Loan Agreement) in accordance with the terms of the Mezzanine Loan Agreement, includingexcept that, without limitation, Section 7.1 thereof and (z) Borrower delivers the non-default interest rate applicable to Administrative Agent, for the benefit of Lenders, a Letter of Credit in the face amount of the remaining Future Funding Amount (as defined in the such Anticipated Mezzanine Loan Agreement) or deposits with Administrative Agent cash in may be greater than the amount of the remaining Future Funding Amount (as defined in the Mezzanine Loan Agreement) (any such collateral, the “Funding Collateral”). If Borrower elects to deliver to Administrative Agent, for the benefit of Lenders, a Letter of Credit pursuant to this subclause, then the Letter of Credit provisions set forth in Schedule VIII shall be applicable. Following any Mezzanine Funding Failure, if each of clause (x), (y) and (z) above has been satisfied by Mezzanine Borrower or Borrower, as applicable, and Borrower has not funded Mezzanine Lender’s Percentage of such Future Advance by the date that is two (2) Business Days after the date Mezzanine Lender was required to fund, then Administrative Agent may draw upon the Funding Collateral in an amount equal to Mezzanine Lender’s Percentage of such Future Advance and shall release the same to Borrower (to be applied by Borrower and/or Mezzanine Borrower in accordance with its Requisition). If Borrower or Mezzanine Lender funds Mezzanine Lender’s Percentage of any Future Advance (to be applied by Borrower and/or Mezzanine Borrower in accordance with its Requisition)Interest Rate, so long as no Event of Default is continuing, Administrative Agent will release a corresponding amount the weighted non-default interest rate of the Funding Collateral Loan and such Anticipated Mezzanine Loan shall, at the time of the creation of such Anticipated Mezzanine Loan, equal the Interest Rate; (ii) shall have a maturity date of not earlier than the Maturity Date for the Loan; and (iii) shall be made utilizing the Proposed Mezzanine Loan Documents, together with such other ancillary documents and deliveries as are customary or necessary in Lender’s reasonable judgment and, to Borrower (the extent applicable, are either in substantially the same form as were executed and delivered in connection with the Loan or are otherwise reasonably acceptable to Mezzanine Borrower. From and after the consummation, if ever, of the Anticipated Mezzanine Loan, such Anticipated Mezzanine Loan shall thereafter be used by Borrower referred to herein and in the other Loan Documents as determined by Borrower)the “Mezzanine Loan”.

Mezzanine Loan. (a) Lender and Borrower have contemporaneously with the negotiation of the Loan Documents also negotiated a complete set of all of the material mezzanine loan documents, true, correct and complete copies of which are attached as Exhibits 1-12 hereto (the “Proposed Mezzanine Lender shall Loan Documents”). The Proposed Mezzanine Loan Documents have funded Mezzanine been negotiated in anticipation of Lender’s Percentage , subsequent to the Closing Date, splitting off a portion of such Future Advance; provided, however, if Mezzanine Lender shall have failed the Loan to fund Mezzanine Lender’s Percentage of any Future Advancecreate, and enter into, a mezzanine loan (the “Anticipated Mezzanine Borrower has satisfied all conditions precedent to such Future Advance under the Mezzanine Loan Agreement, such that Mezzanine Lender has become a “Defaulting Lender” (as defined in the Mezzanine Loan Agreement) (a “Mezzanine Funding FailureLoan”), Borrower which Anticipated Mezzanine Loan: (i) shall be permitted to “fund” Mezzanine Lender’s Percentage of any such Future Advance on substantially the same terms as the Loan (i.e., Borrower shall provide to Administrative Agent evidence acceptable to Administrative Agent that it has sufficient funds on deposit to be allocated to the Approved Costs which were extent applicable to be paid by Mezzanine Lender’s Percentage of such Future Advancea mezzanine loan) provided that as embodied in this Agreement and the other Loan Documents (x) no Event of Default is continuingto the extent applicable to a mezzanine loan), (y) Mezzanine Borrower is actively pursuing its remedies against such Defaulting Lender (as defined in the Mezzanine Loan Agreement) in accordance with the terms of the Mezzanine Loan Agreement, includingexcept that, without limitation, Section 7.1 thereof and (z) Borrower delivers the non-default interest rate applicable to Administrative Agent, for the benefit of Lenders, a Letter of Credit in the face amount of the remaining Future Funding Amount (as defined in the such Anticipated Mezzanine Loan Agreement) or deposits with Administrative Agent cash in may be greater than the amount of the remaining Future Funding Amount (as defined in the Mezzanine Loan Agreement) (any such collateral, the “Funding Collateral”). If Borrower elects to deliver to Administrative Agent, for the benefit of Lenders, a Letter of Credit pursuant to this subclause, then the Letter of Credit provisions set forth in Schedule VIII shall be applicable. Following any Mezzanine Funding Failure, if each of clause (x), (y) and (z) above has been satisfied by Mezzanine Borrower or Borrower, as applicable, and Borrower has not funded Mezzanine Lender’s Percentage of such Future Advance by the date that is two (2) Business Days after the date Mezzanine Lender was required to fund, then Administrative Agent may draw upon the Funding Collateral in an amount equal to Mezzanine Lender’s Percentage of such Future Advance and shall release the same to Borrower (to be applied by Borrower and/or Mezzanine Borrower in accordance with its Requisition). If Borrower or Mezzanine Lender funds Mezzanine Lender’s Percentage of any Future Advance (to be applied by Borrower and/or Mezzanine Borrower in accordance with its Requisition)Interest Rate, so long as no Event of Default is continuing, Administrative Agent will release a corresponding amount the weighted non-default interest rate of the Funding Collateral Loan and such Anticipated Mezzanine Loan shall, at the time of the creation of such Anticipated Mezzanine Loan, equal the Interest Rate; (ii) shall have a maturity date of not earlier than the Maturity Date for the Loan; and (iii) shall be made utilizing the Proposed Mezzanine Loan Documents, together with such other ancillary documents and deliveries as are customary or necessary in Lender's reasonable judgment and, to Borrower (the extent applicable, are either in substantially the same form as were executed and delivered in connection with the Loan or are otherwise reasonably acceptable to Mezzanine Borrower. From and after the consummation, if ever, of the Anticipated Mezzanine Loan, such Anticipated Mezzanine Loan shall thereafter be used by Borrower referred to herein and in the other Loan Documents as determined by Borrower)the “Mezzanine Loan”.