Common use of Mezzanine Financing Clause in Contracts

Mezzanine Financing. (A) In addition to, and without limiting the provisions of Section 16 of the Purchase Agreement, the following has been agreed to: (i) The Mezzanine Loan Documents shall contain a provision that requires the establishment of a debt service reserve ("Debt Service Reserve") to be held by Seller in an interest bearing account. The Mezzanine Borrower shall fund the Debt Service Reserve with a total amount equal to two months of the "Fee" payments due under Section 1 of the Reimbursement Agreement comprising one of the Mezzanine Loan Documents (the "Reimbursement Agreement") which amount shall be funded in two installments as follows, in addition to all other payments due under the Mezzanine Loan Documents: (a) at the Closing, an amount equal to one month's "Fee" payment due under Section 1 of the Reimbursement Agreement and (b) then, on the 6th scheduled payment date under the Mezzanine Loan Documents an amount equal to one month's "Fee" payment due under Section 1 of the Reimbursement Agreement. Provided, however, if there are sale proceeds from the sale of any Individual Property that are held in escrow by Seller under the Mezzanine Loan Documents, then such proceeds (or a portion thereof as needed) shall be used to fund (and put in the account for the Debt Service Reserve) only the second installment to be funded into the Debt Service Reserve, to the extent necessary until the Debt Service Reserve is fully funded and Mezzanine Borrower shall receive a credit against its obligation to fund the Debt Service Reserve by such amount, and in no event shall any portion of the Debt Service Reserve be returned to Mezzanine Borrower until all obligations under the Mezzanine Loan Documents are indefeasibly paid in full. Seller shall have the right to draw upon the Debt Service Reserve if any payment due under the Mezzanine Loan Documents is not paid on its due date, without notice or demand to Mezzanine Borrower, and Mezzanine Borrower shall have the obligation to replenish the Debt Service Reserve with new funds (i.e. no credit shall be given for sale proceeds held in escrow) within five (5) days of demand from Seller. Upon a default under the Mezzanine Loan Documents, Seller can apply the amounts in the Debt Service Reserve to any amounts due and owing under the Mezzanine Loan Documents, as Seller may choose, including, without limitation, expenses of Seller. It shall be a condition precedent of Seller's obligations to close under the Purchase Agreement and shall be a material default by Purchaser if such Debt Service Reserve is not duly funded at the Closing and that the Mezzanine Loan Documents are otherwise satisfactory to Seller. (ii) No cash management agreement shall be required under the Mezzanine Loan Documents, provided, however, if and when the Senior Loan Documents require a cash management agreement (or require such cash management agreement to be

Mezzanine Financing. (A) In addition Provided Tenant provides to Landlord a notice setting forth the name and address of any Mezzanine Financing Source, Landlord shall thereafter deliver to each Mezzanine Financing Source a copy of each notice of default or Lease termination given to Tenant at the same time as, and whenever any such notice of default or notice of termination shall thereafter be given by Landlord to, Tenant, and no such notice of default or notice of termination given by Landlord to Tenant shall be effective as against a Mezzanine Financing Source unless and until a copy thereof shall have been so given to each such Mezzanine Financing Source. Mezzanine Financing Sources providing Mezzanine Financing that are not Leasehold Mortgagees shall be deemed granted and entitled to the same notice and cure rights, protections, limitations on liability and other rights as Leasehold Mortgagees under this Lease, including without limitation this Article (irrespective of whether Mezzanine Financing Sources are expressly named as beneficiaries thereof), provided that such provisions shall be deemed modified (as necessary) to reflect the nature of the security for the Mezzanine Financing. By way of example and not limitation, if the Mezzanine Financing is secured by a pledge of the direct or indirect equity or ownership interests in Tenant, then, in the case of a non-monetary Event of Default that cannot be remedied by a Mezzanine Financing Source without possession of the Private Facilities, the Mezzanine Financing Source will need to institute foreclosure proceedings with respect to the pledge of such ownership interests (in lieu of foreclosure of a Leasehold Mortgage). Without limiting the provisions terms of Section 16 this Section, it is understood that Landlord shall have no right to terminate this Lease or to reenter the Private Facilities, by reason of a default or Event of Default by Tenant, until all such notice and cure periods and other rights (including rights to a New Lease) have been fully afforded to Mezzanine Financing Sources in the same manner and subject to the same terms and conditions as those afforded to Leasehold Mortgagees, adjusted to accommodate the differences in security as hereinabove provided. Landlord shall accept performance by a Mezzanine Financing Source of any covenant, condition or agreement on Xxxxxx’s part to be performed hereunder with the same force and effect as though performed by Xxxxxx; provided that nothing contained herein shall be deemed to impose upon any Mezzanine Financing Source the obligation to perform any obligation of Tenant under this Lease or to remedy any default by Tenant hereunder. Any Transfer that occurs by reason of the Purchase Agreementforeclosure of security for Mezzanine Financing or any assignment, conveyance or other Transfer in lieu thereof to a Mezzanine Financing Source or its nominee or designee or through the enforcement of any rights or remedies under any Mezzanine Financing documents, shall not require the consent or approval of Landlord or constitute a breach of any provision of or a default under this Lease. Notwithstanding any provision of this Lease to the contrary, the following has been agreed to: (i) The Mezzanine Loan Documents shall contain a provision that requires the establishment of a debt service reserve ("Debt Service Reserve") to be held by Seller in an interest bearing account. The Mezzanine Borrower shall fund the Debt Service Reserve with a total amount equal to two months of the "Fee" payments due under Section 1 of the Reimbursement Agreement comprising one of the Mezzanine Loan Documents (the "Reimbursement Agreement") which amount shall be funded in two installments as follows, in addition to all other payments due under the Mezzanine Loan Documents: (a) at the Closing, an amount equal to one month's "Fee" payment due under Section 1 of the Reimbursement Agreement and (b) then, on the 6th scheduled payment date under the Mezzanine Loan Documents an amount equal to one month's "Fee" payment due under Section 1 of the Reimbursement Agreement. Provided, however, if there are sale proceeds from the sale rights of any Individual Property that are held Mezzanine Financing Sources (as described in escrow by Seller under the Mezzanine Loan Documents, then such proceeds (this Section or a portion thereof as neededelsewhere in this Lease) shall be used to fund (and put in the account for the Debt Service Reserve) only the second installment to be funded into the Debt Service Reserve, subject to the extent necessary until rights of any Leasehold Mortgagee, whose rights shall take precedence unless otherwise agreed in writing by the Debt Service Reserve is fully funded and Mezzanine Borrower shall receive a credit against its obligation to fund the Debt Service Reserve by such amount, and in no event shall any portion of the Debt Service Reserve be returned to Mezzanine Borrower until all obligations under the Mezzanine Loan Documents are indefeasibly paid in full. Seller shall have the right to draw upon the Debt Service Reserve if any payment due under the Mezzanine Loan Documents is not paid on its due date, without notice or demand to Mezzanine Borrower, and Mezzanine Borrower shall have the obligation to replenish the Debt Service Reserve with new funds (i.e. no credit shall be given for sale proceeds held in escrow) within five (5) days of demand from Seller. Upon a default under the Mezzanine Loan Documents, Seller can apply the amounts in the Debt Service Reserve to any amounts due and owing under the Mezzanine Loan Documents, as Seller may choose, including, without limitation, expenses of Seller. It shall be a condition precedent of Seller's obligations to close under the Purchase Agreement and shall be a material default by Purchaser if such Debt Service Reserve is not duly funded at the Closing and that the Mezzanine Loan Documents are otherwise satisfactory to SellerLeasehold Mortgagee(s). (ii) No cash management agreement shall be required under the Mezzanine Loan Documents, provided, however, if and when the Senior Loan Documents require a cash management agreement (or require such cash management agreement to be

Mezzanine Financing. (A) In addition Provided Tenant provides to Landlord a notice setting forth the name and address of any Mezzanine Financing Source, Landlord shall thereafter deliver to each Mezzanine Financing Source a copy of each notice of default or Lease termination given to Tenant at the same time as, and whenever any such notice of default or notice of termination shall thereafter be given by Landlord to, Tenant, and no such notice of default or notice of termination given by Landlord to Tenant shall be effective as against a Mezzanine Financing Source unless and until a copy thereof shall have been so given to each such Mezzanine Financing Source. Mezzanine Financing Sources providing Mezzanine Financing that are not Leasehold Mortgagees shall be deemed granted and entitled to the same notice and cure rights, protections, limitations on liability and other rights as Leasehold Mortgagees under this Lease, including without limitation Article 15 (irrespective of whether Mezzanine Financing Sources are expressly named as beneficiaries thereof), provided that such provisions shall be deemed modified (as necessary) to reflect the nature of the security for the Mezzanine Financing. By way of example and not limitation, if the Mezzanine Financing is secured by a pledge of the direct or indirect equity or ownership interests in Tenant, then, in the case of a non-monetary Event of Default that cannot be remedied by a Mezzanine Financing Source without possession of the Private Facilities, the Mezzanine Financing Source will need to institute foreclosure proceedings with respect to the pledge of such ownership interests (in lieu of foreclosure of a Leasehold Mortgage). Without limiting the provisions terms of Section 16 this Section, it is understood that Landlord shall have no right to terminate this Lease or to reenter the Private Facilities, by reason of a default or Event of Default by Tenant, until all such notice and cure periods and other rights (including rights to a New Lease) have been fully afforded to Mezzanine Financing Sources in the same manner and subject to the same terms and conditions as those afforded to Leasehold Mortgagees, adjusted to accommodate the differences in security as hereinabove provided. Landlord shall accept performance by a Mezzanine Financing Source of any covenant, condition or agreement on Xxxxxx’s part to be performed hereunder with the same force and effect as though performed by Xxxxxx; provided that nothing contained herein shall be deemed to impose upon any Mezzanine Financing Source the obligation to perform any obligation of Tenant under this Lease or to remedy any default by Tenant hereunder. Any Transfer that occurs by reason of the Purchase Agreementforeclosure of security for Mezzanine Financing or any assignment, conveyance or other Transfer in lieu thereof to a Mezzanine Financing Source or its nominee or designee or through the enforcement of any rights or remedies under any Mezzanine Financing documents, shall not require the consent or approval of Landlord or constitute a breach of any provision of or a default under this Lease. Notwithstanding any provision of this Lease to the contrary, the following has been agreed to: (i) The Mezzanine Loan Documents shall contain a provision that requires the establishment of a debt service reserve ("Debt Service Reserve") to be held by Seller in an interest bearing account. The Mezzanine Borrower shall fund the Debt Service Reserve with a total amount equal to two months of the "Fee" payments due under Section 1 of the Reimbursement Agreement comprising one of the Mezzanine Loan Documents (the "Reimbursement Agreement") which amount shall be funded in two installments as follows, in addition to all other payments due under the Mezzanine Loan Documents: (a) at the Closing, an amount equal to one month's "Fee" payment due under Section 1 of the Reimbursement Agreement and (b) then, on the 6th scheduled payment date under the Mezzanine Loan Documents an amount equal to one month's "Fee" payment due under Section 1 of the Reimbursement Agreement. Provided, however, if there are sale proceeds from the sale rights of any Individual Property that are held Mezzanine Financing Sources (as described in escrow by Seller under the Mezzanine Loan Documents, then such proceeds (this Section or a portion thereof as neededelsewhere in this Lease) shall be used to fund (and put in the account for the Debt Service Reserve) only the second installment to be funded into the Debt Service Reserve, subject to the extent necessary until rights of any Leasehold Mortgagee, whose rights shall take precedence unless otherwise agreed in writing by the Debt Service Reserve is fully funded and Mezzanine Borrower shall receive a credit against its obligation to fund the Debt Service Reserve by such amount, and in no event shall any portion of the Debt Service Reserve be returned to Mezzanine Borrower until all obligations under the Mezzanine Loan Documents are indefeasibly paid in full. Seller shall have the right to draw upon the Debt Service Reserve if any payment due under the Mezzanine Loan Documents is not paid on its due date, without notice or demand to Mezzanine Borrower, and Mezzanine Borrower shall have the obligation to replenish the Debt Service Reserve with new funds (i.e. no credit shall be given for sale proceeds held in escrow) within five (5) days of demand from Seller. Upon a default under the Mezzanine Loan Documents, Seller can apply the amounts in the Debt Service Reserve to any amounts due and owing under the Mezzanine Loan Documents, as Seller may choose, including, without limitation, expenses of Seller. It shall be a condition precedent of Seller's obligations to close under the Purchase Agreement and shall be a material default by Purchaser if such Debt Service Reserve is not duly funded at the Closing and that the Mezzanine Loan Documents are otherwise satisfactory to SellerLeasehold Mortgagee(s). (ii) No cash management agreement shall be required under the Mezzanine Loan Documents, provided, however, if and when the Senior Loan Documents require a cash management agreement (or require such cash management agreement to be

Mezzanine Financing. (A) In addition Tenant and the direct and indirect owners of Tenant shall have the right, upon prior notice to, but without consent or approval from, Landlord, to enter into one or more mezzanine loans (each, a “Mezzanine Loan”). Neither the pledge of any equity interests in the direct and/or indirect owners of Tenant nor the foreclosure of any such pledge of equity interests shall be deemed to constitute an assignment or transfer of this Lease or the leasehold estate created hereunder nor shall a Tenant Mezzanine Lender (as hereinafter defined) by foreclosing on a pledge of equity interests, and without limiting the provisions assuming ownership of Section 16 such equity interests, be deemed to be an assignee or transferee or mortgagee in possession of the Purchase Agreementleasehold estate created hereunder in violation of this Lease, it being acknowledged that any such foreclosure by such Tenant Mezzanine Lender shall not be deemed to violate this Lease or require the following has consent or approval of, or notice to, Landlord. Provided Tenant provides to Landlord a notice setting forth the name and address of any Tenant Mezzanine Lender having a security interest in the direct or indirect equity or other ownership interest in Tenant (whether or not such security interest shall also cover other equity or ownership interests in one or more other person or entity) (each, a “Tenant Mezzanine Lender”), Landlord shall thereafter deliver to each Tenant Mezzanine Lender a copy of each notice of default or Lease termination given to Tenant at the same time as, and whenever any such notice of default or notice of termination shall thereafter be given by Landlord to Tenant, and no such notice of default or notice of termination by Landlord shall be deemed to have been agreed to: duly given to Tenant unless and until a copy thereof shall have been so given to each such Tenant Mezzanine Lender. Subject to the terms of this ARTICLE XIII, Tenant Mezzanine Lenders shall (i) The thereupon have a single period (for all Tenant Mezzanine Loan Documents shall contain a provision that requires Lenders) of ten (10) days more than the establishment cure period afforded to Tenant in the case of a debt service reserve default in the payment of Rent and thirty ("Debt Service Reserve"30) days more than the cure period afforded to Tenant in the case of any other default which is capable of being cured by a Tenant Mezzanine Lender, after notice of such default is given to Tenant Mezzanine Lenders, for curing the default, causing the same to be held cured by Seller in an interest bearing account. The Mezzanine Borrower shall fund the Debt Service Reserve with a total amount equal to two months of the "Fee" payments due under Section 1 of the Reimbursement Agreement comprising one of the Mezzanine Loan Documents (the "Reimbursement Agreement") which amount shall be funded in two installments as followsTenant or otherwise, in addition to all other payments due under the Mezzanine Loan Documents: (a) at the Closing, an amount equal to one month's "Fee" payment due under Section 1 of the Reimbursement Agreement and (bii) thenwithin such period and otherwise as herein provided, on the 6th scheduled payment date under the Mezzanine Loan Documents an amount equal to one month's "Fee" payment due under Section 1 of the Reimbursement Agreement. Provided, however, if there are sale proceeds from the sale of any Individual Property that are held in escrow by Seller under the Mezzanine Loan Documents, then such proceeds (or a portion thereof as needed) shall be used to fund (and put in the account for the Debt Service Reserve) only the second installment to be funded into the Debt Service Reserve, to the extent necessary until the Debt Service Reserve is fully funded and Mezzanine Borrower shall receive a credit against its obligation to fund the Debt Service Reserve by such amount, and in no event shall any portion of the Debt Service Reserve be returned to Mezzanine Borrower until all obligations under the Mezzanine Loan Documents are indefeasibly paid in full. Seller shall have the right to draw upon cure such default, cause the Debt Service Reserve if any payment due under the Mezzanine Loan Documents is not paid on its due date, without notice same to be cured by Tenant or demand otherwise or cause an action to Mezzanine Borrowercure a default to be commenced, and Mezzanine Borrower Landlord shall not have the obligation right to replenish the Debt Service Reserve with new funds (i.e. no credit shall be given for sale proceeds held in escrow) within five (5) days terminate this Lease, by reason of demand from Seller. Upon a default under by Xxxxxx, until the Mezzanine Loan Documents, Seller can apply the amounts in the Debt Service Reserve to any amounts due and owing under the Mezzanine Loan Documents, as Seller may choose, including, cure period has expired without limitation, expenses of Seller. It shall be a condition precedent of Seller's obligations to close under the Purchase Agreement and shall be a material default by Purchaser if such Debt Service Reserve is not duly funded at the Closing and that the Mezzanine Loan Documents are otherwise satisfactory to Seller. (ii) No cash management agreement shall be required under the Mezzanine Loan Documents, cure having been made; provided, however, if that nothing contained herein shall be deemed to impose upon any Tenant Mezzanine Lender the obligation to perform any obligation of Tenant under this Lease or to remedy any default by Tenant hereunder. Landlord shall accept performance by a Xxxxxx Xxxxxxxxx Lender of any covenant, condition or agreement on Xxxxxx’s part to be performed hereunder with the same force and when effect as though performed by Xxxxxx. Any provision of this Lease to the Senior Loan contrary notwithstanding, no performance by or on behalf of a Tenant Mezzanine Lender shall cause it to become a “mortgagee in possession” or otherwise cause it to be deemed to be in possession of the Premises or bound by or liable under this Lease. Notwithstanding any provision of this Lease to the contrary, (x) the rights of any Tenant Mezzanine Lenders (as described in this Section 13.15 or elsewhere in this Lease) shall be subject to the rights of any Leasehold Mortgagee, whose rights shall take precedence and (y) in the event that a Leasehold Mortgagee and one or more Tenant Mezzanine Lenders (the “Affected Tenant Mezzanine Lenders”) have loans outstanding to Tenant or any Affiliate of Tenant, respectively, and the obligations of Tenant under the Leasehold Mortgage Documents require have been paid and satisfied in full (and no new Leasehold Mortgage or Leasehold Mortgages are being granted in connection therewith), then, all rights granted to such Leasehold Mortgagee under this Lease shall be deemed granted to the Affected Tenant Mezzanine Lenders until the mezzanine loans made by such Affected Tenant Mezzanine Lenders have been paid and satisfied in full or a cash management agreement (or require such cash management agreement to benew Leasehold Mortgage has been granted.