Common use of Release of Excess Cash Flow Reserve Fund Clause in Contracts

Release of Excess Cash Flow Reserve Fund. (a) So long as no Event of Default has occurred and is continuing and no Bankruptcy Action of Borrower has occurred and is continuing, Administrative Agent shall disburse funds then available in the Excess Cash Flow Reserve Account within three (3) Business Days of Borrower’s written request (provided that Borrower has not made a claim against such escrowed amounts or otherwise taken action to restrict Lender from applying such sums for the purpose of paying such items), to pay costs and expenses in connection with the ownership, management and/or operation of the Property to the extent such amounts are not otherwise paid in accordance with the Cash Management Agreement for (i) payment of shortfalls in the payment of Debt Service, (ii) payment of shortfalls in the required deposits into the Reserve Accounts (in each case, to the extent required in the Loan Agreement and the Cash Management Agreement), (iii) principal prepayments of the Loan at Borrower’s option, including any prepayment which is required to satisfy any Debt Yield test hereunder, (iv) payment of any Operating Expenses (including any Capital Expenditures), (v) payment of management fees due and payable under the Management Agreement, (vi) payment of emergency repairs and/or life-safety items, including any such repairs or items which are capital in nature, Administrative Agent hereby acknowledging that it shall endeavor to fund (or cause its Servicer to fund) such requests within one (1) Business Day of request by Borrower, provided further that any failure to fund such request within one (1) Business Day shall in no event create any liability for Administrative Agent hereunder; (vii) payment of Leasing Costs under Leases entered into pursuant to the terms of this Agreement or existing as of the Closing Date; (viii) costs associated with Interest Rate Protection Agreements with respect to the Loan, including Replacement Interest Rate Protection Agreements; (ix) payment of Sales and Occupancy Taxes; (x) payment of any shortfall of Net Proceeds with respect the costs of Restoration of an Individual Property after a Casualty or Condemnation incurred by, or on behalf of, Borrower in connection therewith; (xi) payment of any fees and costs which are due and payable in connection with the Loan; (xii) Required REIT Distributions, not to exceed $250,000 in any calendar year in the aggregate, and (xiii) such other items as may be approved in writing by the Requisite Lenders, as determined in the Requisite Lenders’ reasonable discretion, provided that, for purposes of clarity, no mezzanine lender shall be able to approve items for disbursement from the Excess Cash Flow Reserve Account pursuant to this clause (xiii). (b) Notwithstanding anything to the contrary set forth in clause (a) above, so long as no Bankruptcy Action of Borrower has occurred and is continuing, notwithstanding the existence of an Event of Default, Administrative Agent agrees to disburse Excess Cash Flow Reserve Funds to the extent on deposit with Administrative Agent on the applicable due date for the payment of (i) Taxes pursuant to Tax Bills (including Sales and Occupancy Taxes) directly to the applicable taxing authority in the event Tax Reserve Funds on deposit in the Tax and Insurance Reserve Account are not sufficient to pay such amounts on the date due and (ii) Insurance Premiums (if applicable) directly to the applicable insurer in the event Insurance Reserve Funds on deposit in the Tax and Insurance Reserve Account are not sufficient to pay such amounts on the date due. (c) Any Excess Cash Flow Reserve Funds remaining on deposit in the Excess Cash Flow Reserve Account on a Cash Sweep Cure Date shall be paid to Borrower.

Release of Excess Cash Flow Reserve Fund. (a) So long as no Event of Default has occurred and is continuing and no Bankruptcy Action of Borrower has occurred and is continuing, Administrative Agent shall disburse funds then available in Borrower will have access to the Excess Cash Flow Reserve Account and Excess Cash Flow Reserve Funds shall be disbursed by Lender to Borrower within three (3) Business Days of Borrower’s written request (provided that Borrower has not made a claim against such escrowed amounts or otherwise taken action to restrict Lender from applying such sums for the purpose of paying such items), to pay costs for cost and expenses in connection with the ownership, management and/or operation of the Property to the extent such amounts are not otherwise paid in accordance with the Cash Management Agreement Properties, including, without limitation for (i) payment of shortfalls in the payment of Debt Service and/or Mezzanine Debt Service, ; (ii) payment of shortfalls in the required deposits into the Reserve Accounts (in each case, to the extent required in the Loan this Agreement and the Cash Management Agreement), ; (iii) principal prepayments of the Loan at Borrower’s option, including principal prepayments of the Loan, together with the payment of any prepayment Spread Maintenance Premium, if applicable and the Mezzanine Loan, if any, together with the payment of any Spread Maintenance Premium (as defined in the Mezzanine Loan Agreement), if applicable; (iv) at Borrower’s option, prepayments of the Loan and Mezzanine Loan which is are required to satisfy any Debt Yield test hereunder, hereunder or under the Mezzanine Loan Agreement (ivwhich prepayment shall be applied pro rata between the Loan and the Mezzanine Loan (which portion of such prepayment applicable to the Loan shall be applied to any Components in accordance with Section 2.4.4 hereof)); (v) payment of any Operating Expenses (including any Capital Expenditures), ; (vvi) payment of management fees due and payable under the Management Agreement, ; (vivii) payment of emergency repairs and/or life-safety items, including any such repairs or items which are capital in natureCapital Expenditures, Administrative Agent Lender hereby acknowledging that it shall endeavor to fund (or cause its Servicer to fund) such requests within one (1) Business Day of request by Borrower, provided further that any failure to fund such request within one (1) Business Day shall in no event create any liability for Administrative Agent Lender hereunder; (viiviii) payment of Leasing Costs tenant improvement costs, tenant allowances, tenant relocation costs, tenant reimbursements, tenant inducement payments and leasing commission obligations or other expenditures required under Leases entered into pursuant to in accordance with the terms of this Agreement Section 5.1.20 hereof or existing as of the Closing Date; (viiiix) costs associated with Interest Rate Protection Agreements with respect to the LoanLoan or a Mezzanine Loan (if any), including Replacement Interest Rate Protection Agreements; (ix) payment of Sales , Substitute Interest Rate Protection Agreements and Occupancy TaxesConverted Interest Rate Protection Agreements; (x) vacant space preparation costs and marketing costs with respect to potential leasing at the Properties; (xi) payment of any shortfall of Net Proceeds with respect to the costs and expenses of Restoration of an Individual Property after a Casualty or Condemnation incurred by, or on behalf of, the Borrower in connection therewith; (xixii) payment of any fees and costs which are due payable pursuant to the Loan Documents or the New Mezzanine Lender pursuant to the Mezzanine Loan Documents, including costs to extend the PLL Policy; (xiii) legal, audit and payable accounting costs (including actual costs incurred by Sponsor (directly or indirectly) and its service providers for back office accounting and for costs associated with the Properties or Borrower), provided, that such funds shall not be used for the legal fees incurred in connection with the Loanenforcement of Borrower’s or any Affiliates of Borrower’s rights pursuant to the Loan Documents or Mezzanine Borrower’s rights under the Mezzanine Loan Documents, respectively; (xiixiv) any Required REIT Distributions; (xv) Approved Alterations or Required Repairs; (xvi) costs and expenses payable pursuant to any PILOT Lease; (xvii) rent or other costs or expenses payable pursuant to any PILOT Lease (other than payments that are made by book entry and do not require any out-of-pocket expenses to be incurred by Borrower); (xviii) payment of condominium common charges, association fees or other expenses and charges of condominiums (if any) to the extent not paid as association fees out of the Lockbox Account; (xix) so long as Sponsor is an Approved Sponsor Entity and Borrower is Controlled by an Approved Sponsor Entity in accordance with the terms and conditions hereof and without duplication of any amounts distributed pursuant to the other sub-clauses of this clause (a), distributions in an amount not to exceed $250,000 any capital contributions made by Sponsor or any other direct and/or indirect owner of Borrower during the continuance of the then current Cash Sweep Period (a “Permitted Return”) provided, that (A) after giving effect to such release of Excess Cash Flow Reserve Funds pursuant to this clause (xix), (1) no Event of Default shall result from such distribution and (2) in respect to any calendar year distribution of cash received since the last Payment Date or any Permitted Return, after making such distribution, an amount equal to the Debt Service due at the next Payment Date remains on deposit in the aggregateExcess Cash Flow Reserve Account, (B) to the extent that Borrower has delivered an Excess Cash Flow Guaranty in accordance with Section 7.5.2(c) hereof, any amounts paid by Borrower with respect to amounts due with regard to the Loan and/or the Properties shall not be deemed to be capital contributions made by Sponsor or any other direct and/or indirect owner of Borrower and (xiiiC) a Permitted Return shall not apply to prepayments of a Mezzanine Loan that is repaid in reverse sequential order, (xx) any corporate overhead reasonably allocated by Sponsor to the Properties and (xxi) such other items as may be approved in writing by the Requisite LendersLender, as determined in the Requisite Lenders’ Lender’s reasonable discretion, discretion provided that, for purposes of clarity, no mezzanine lender Mezzanine Lender shall be able to approve items for disbursement from the Excess Cash Flow Reserve Account pursuant to this clause (xiiixxi). (b) Notwithstanding anything to the contrary set forth in clause (a) above, so long as no Bankruptcy Action of Borrower has occurred and is continuing, notwithstanding the existence of an Event of Default, Administrative Agent agrees to disburse Excess Cash Flow Reserve Funds to the extent on deposit with Administrative Agent on the applicable due date for the payment of (i) Taxes pursuant to Tax Bills (including Sales and Occupancy Taxes) directly to the applicable taxing authority in the event Tax Reserve Funds on deposit in the Tax and Insurance Reserve Account are not sufficient to pay such amounts on the date due and (ii) Insurance Premiums (if applicable) directly to the applicable insurer in the event Insurance Reserve Funds on deposit in the Tax and Insurance Reserve Account are not sufficient to pay such amounts on the date due. (c) Any Excess Cash Flow Reserve Funds remaining on deposit in the Excess Cash Flow Reserve Account on upon a Cash Sweep Cure Date or the date Borrower delivers an Excess Cash Flow Guaranty pursuant to Section 7.5.2(c) hereof shall be paid (i) provided a Cash Sweep Period under a Mezzanine Loan (if any) is then continuing or any amounts are then due and payable to Mezzanine Lender, to the Mezzanine Lender to be held by Mezzanine Lender pursuant to the Mezzanine Loan Agreement for the purposes described therein, or (ii) if no Mezzanine Loan is then outstanding or if there does not then exist a Cash Sweep Period under the Mezzanine Loan and all amounts due and payable to the Mezzanine Lender have been paid, to Borrower. Any Excess Cash Flow Reserve Funds remaining on deposit in the Excess Cash Flow Reserve Account after the Debt and all amounts due to Lender have been paid in full shall be paid to (y) to the most senior Mezzanine Lender to be held by such Mezzanine Lender pursuant to the related Mezzanine Loan Agreement for the same purposes as those described therein or (z) if the Mezzanine Loans are no longer outstanding, Borrower. (c) In lieu of Agent depositing all Reserved Excess Cash Flow into the Excess Cash Flow Reserve Account in accordance with Section 7.5 hereof and Section 3(k) of the Cash Management Agreement and for so long as no Event of Default has occurred and is continuing, Borrower shall have the right to cause Excess Cash Flow Guarantor to deliver to Lender the Excess Cash Flow Guaranty, provided, that as a condition precedent to the delivery of such Excess Cash Flow Guaranty to Lender, (i) Borrower shall deliver to Lender, at Borrower’s sole cost and expense, a legal opinion that the Excess Cash Flow Guaranty has been duly authorized, executed and delivered by Excess Cash Flow Guarantor, and that the Excess Cash Flow Guaranty is valid, binding and enforceable against Excess Cash Flow Guarantor in accordance with its terms, which opinions shall be in form and substance substantially similar to the opinions delivered by Xxxxxxxx’s counsel upon the closing of the Loan with respect to validity, authority, execution and enforceability, and which may be relied upon by Xxxxxx and, following a Rated Securitization, the Rating Agencies and (ii) if the Additional Insolvency Opinion Condition is satisfied, then Borrower shall deliver an Additional Insolvency Opinion reasonably acceptable to Lender, which takes into account such Excess Cash Flow Guaranty. In no instance shall Borrower be entitled to request, nor shall Lender be obligated to disburse, Reserved Excess Cash Flow to Borrower pursuant to this Section 7.5.2(c) in lieu of depositing the same into the Excess Cash Flow Reserve Account if (I) an Event of Default has occurred and is continuing, (II) such Reserved Excess Cash Flow is not guaranteed pursuant to the Excess Cash Flow Guaranty, and/or (III) such disbursement of such amounts would cause the Additional Insolvency Opinion Condition to be satisfied unless Borrower shall provide an Additional Insolvency Opinion in form and substance reasonably acceptable to Lender. For the avoidance of doubt, during the continuance of a Cash Sweep Period, (x) any Reserved Excess Cash Flow that is in excess of the amount of Excess Cash Flow guaranteed pursuant to the Excess Cash Flow Guaranty shall be deposited into the Excess Cash Flow Reserve Account and (y) all Free Excess Cash Flow shall be disbursed to a Non-Pledged Account designated by Borrower.

Release of Excess Cash Flow Reserve Fund. (a) So long as no Event of Default has occurred and is continuing and no Bankruptcy Action of Borrower has occurred and is continuing, Administrative Agent shall disburse funds then available in Borrower will have access to the Excess Cash Flow Reserve Account and Excess Cash Flow Reserve Funds shall be disbursed by Lender to Borrower within three (3) Business Days of Borrower’s written request (provided that Borrower has not made a claim against such escrowed amounts or otherwise taken action to restrict Lender from applying such sums for the purpose of paying such items), to pay costs for cost and expenses in connection with the ownership, management and/or operation of the Property to the extent such amounts are not otherwise paid in accordance with the Cash Management Agreement Properties, including, without limitation for (i) payment of shortfalls in the payment of Debt Service and/or Mezzanine Debt Service, ; (ii) payment of shortfalls in the required deposits into the Reserve Accounts (in each case, to the extent required in the Loan this Agreement and the Cash Management Agreement), ; (iii) principal prepayments of the Loan at Borrower’s option, including principal prepayments of the Loan, together with the payment of any prepayment Spread Maintenance Premium, if applicable and the Mezzanine Loan, if any, together with the payment of any Spread Maintenance Premium (as defined in the Mezzanine Loan Agreement), if applicable; (iv) at Borrower’s option, prepayments of the Loan and Mezzanine Loan which is are required to satisfy any Debt Yield test hereunder, hereunder or under the Mezzanine Loan Agreement (ivwhich prepayment shall be applied pro rata between the Loan and the Mezzanine Loan (which portion of such prepayment applicable to the Loan shall be applied to any Components in accordance with Section 2.4.4 hereof)); (v) payment of any Operating Expenses (including any Capital Expenditures), ; (vvi) payment of management fees due and payable under the Management Agreement, ; (vivii) payment of emergency repairs and/or life-safety items, including any such repairs or items which are capital in natureCapital Expenditures, Administrative Agent Lender hereby acknowledging that it shall endeavor to fund (or cause its Servicer to fund) such requests within one (1) Business Day of request by BorrowerXxxxxxxx, provided further that any failure to fund such request within one (1) Business Day shall in no event create any liability for Administrative Agent Lender hereunder; (viiviii) payment of Leasing Costs tenant improvement costs, tenant allowances, tenant relocation costs, tenant reimbursements, tenant inducement payments and leasing commission obligations or other expenditures required under Leases entered into pursuant to in accordance with the terms of this Agreement Section 5.1.20 hereof or existing as of the Closing Date; (viiiix) costs associated with Interest Rate Protection Agreements with respect to the LoanLoan or a Mezzanine Loan (if any), including Replacement Interest Rate Protection Agreements; (ix) payment of Sales , Substitute Interest Rate Protection Agreements and Occupancy TaxesConverted Interest Rate Protection Agreements; (x) vacant space preparation costs and marketing costs with respect to potential leasing at the Properties; (xi) payment of any shortfall of Net Proceeds with respect to the costs and expenses of Restoration of an Individual Property after a Casualty or Condemnation incurred by, or on behalf of, the Borrower in connection therewith; (xixii) payment of any fees and costs which are due payable pursuant to the Loan Documents or the New Mezzanine Lender pursuant to the Mezzanine Loan Documents, including costs to extend the PLL Policy; (xiii) legal, audit and payable accounting costs (including actual costs incurred by Sponsor (directly or indirectly) and its service providers for back office accounting and for costs associated with the Properties or Borrower), provided, that such funds shall not be used for the legal fees incurred in connection with the Loanenforcement of Borrower’s or any Affiliates of Borrower’s rights pursuant to the Loan Documents or Mezzanine Borrower’s rights under the Mezzanine Loan Documents, respectively; (xiixiv) any Required REIT Distributions; (xv) Approved Alterations or Required Repairs; (xvi) costs and expenses payable pursuant to any PILOT Lease; (xvii) rent or other costs or expenses payable pursuant to the Ground Lease or any PILOT Lease (other than payments that are made by book entry and do not require any out-of-pocket expenses to be incurred by Borrower); (xviii) payment of condominium common charges, association fees or other expenses and charges of condominiums (if any) to the extent not paid as association fees out of the Lockbox Account; (xix) so long as Sponsor is an Approved Sponsor Entity and Borrower is Controlled by an Approved Sponsor Entity in accordance with the terms and conditions hereof and without duplication of any amounts distributed pursuant to the other sub-clauses of this clause (a), distributions in an amount not to exceed $250,000 any capital contributions made by Sponsor or any other direct and/or indirect owner of Borrower during the continuance of the then current Cash Sweep Period (a “Permitted Return”) provided, that (A) after giving effect to such release of Excess Cash Flow Reserve Funds pursuant to this clause (xix), (1) no Event of Default shall result from such distribution and (2) in respect to any calendar year distribution of cash received since the last Payment Date or any Permitted Return, after making such distribution, an amount equal to the Debt Service due at the next Payment Date remains on deposit in the aggregateExcess Cash Flow Reserve Account, (B) to the extent that Borrower has delivered an Excess Cash Flow Guaranty in accordance with Section 7.5.2(c) hereof, any amounts paid by Borrower with respect to amounts due with regard to the Loan and/or the Properties shall not be deemed to be capital contributions made by Sponsor or any other direct and/or indirect owner of Borrower and (xiiiC) a Permitted Return shall not apply to prepayments of a Mezzanine Loan that is repaid in reverse sequential order, (xx) any corporate overhead reasonably allocated by Sponsor to the Properties and (xxi) such other items as may be approved in writing by the Requisite LendersLender, as determined in the Requisite Lenders’ Xxxxxx’s reasonable discretion, discretion provided that, for purposes of clarity, no mezzanine lender Mezzanine Lender shall be able to approve items for disbursement from the Excess Cash Flow Reserve Account pursuant to this clause (xiiixxi). (b) Notwithstanding anything to the contrary set forth in clause (a) above, so long as no Bankruptcy Action of Borrower has occurred and is continuing, notwithstanding the existence of an Event of Default, Administrative Agent agrees to disburse Excess Cash Flow Reserve Funds to the extent on deposit with Administrative Agent on the applicable due date for the payment of (i) Taxes pursuant to Tax Bills (including Sales and Occupancy Taxes) directly to the applicable taxing authority in the event Tax Reserve Funds on deposit in the Tax and Insurance Reserve Account are not sufficient to pay such amounts on the date due and (ii) Insurance Premiums (if applicable) directly to the applicable insurer in the event Insurance Reserve Funds on deposit in the Tax and Insurance Reserve Account are not sufficient to pay such amounts on the date due. (c) Any Excess Cash Flow Reserve Funds remaining on deposit in the Excess Cash Flow Reserve Account on upon a Cash Sweep Cure Date or the date Borrower delivers an Excess Cash Flow Guaranty pursuant to Section 7.5.2(c) hereof shall be paid (i) provided a Cash Sweep Period under a Mezzanine Loan (if any) is then continuing or any amounts are then due and payable to Mezzanine Lender, to the Mezzanine Lender to be held by Mezzanine Lender pursuant to the Mezzanine Loan Agreement for the purposes described therein, or (ii) if no Mezzanine Loan is then outstanding or if there does not then exist a Cash Sweep Period under the Mezzanine Loan and all amounts due and payable to the Mezzanine Lender have been paid, to Borrower. Any Excess Cash Flow Reserve Funds remaining on deposit in the Excess Cash Flow Reserve Account after the Debt and all amounts due to Lender have been paid in full shall be paid to (y) to the most senior Mezzanine Lender to be held by such Mezzanine Lender pursuant to the related Mezzanine Loan Agreement for the same purposes as those described therein or (z) if the Mezzanine Loans are no longer outstanding, Borrower. (c) In lieu of Agent depositing all Reserved Excess Cash Flow into the Excess Cash Flow Reserve Account in accordance with Section 7.5 hereof and Section 3(k) of the Cash Management Agreement and for so long as no Event of Default has occurred and is continuing, Borrower shall have the right to cause Excess Cash Flow Guarantor to deliver to Lender the Excess Cash Flow Guaranty, provided, that as a condition precedent to the delivery of such Excess Cash Flow Guaranty to Lender, (i) Borrower shall deliver to Lender, at Borrower’s sole cost and expense, a legal opinion that the Excess Cash Flow Guaranty has been duly authorized, executed and delivered by Excess Cash Flow Guarantor, and that the Excess Cash Flow Guaranty is valid, binding and enforceable against Excess Cash Flow Guarantor in accordance with its terms, which opinions shall be in form and substance substantially similar to the opinions delivered by Xxxxxxxx’s counsel upon the closing of the Loan with respect to validity, authority, execution and enforceability, and which may be relied upon by Xxxxxx and, following a Rated Securitization, the Rating Agencies and (ii) if the Additional Insolvency Opinion Condition is satisfied, then Borrower shall deliver an Additional Insolvency Opinion reasonably acceptable to Lender, which takes into account such Excess Cash Flow Guaranty. In no instance shall Borrower be entitled to request, nor shall Lender be obligated to disburse, Reserved Excess Cash Flow to Borrower pursuant to this Section 7.5.2(c) in lieu of depositing the same into the Excess Cash Flow Reserve Account if (I) an Event of Default has occurred and is continuing, (II) such Reserved Excess Cash Flow is not guaranteed pursuant to the Excess Cash Flow Guaranty, and/or (III) such disbursement of such amounts would cause the Additional Insolvency Opinion Condition to be satisfied unless Borrower shall provide an Additional Insolvency Opinion in form and substance reasonably acceptable to Lender. For the avoidance of doubt, during the continuance of a Cash Sweep Period, (x) any Reserved Excess Cash Flow that is in excess of the amount of Excess Cash Flow guaranteed pursuant to the Excess Cash Flow Guaranty shall be deposited into the Excess Cash Flow Reserve Account and (y) all Free Excess Cash Flow shall be disbursed to a Non-Pledged Account designated by Borrower.

Release of Excess Cash Flow Reserve Fund. (a) So long as no Event of Default has occurred and is continuing and no Bankruptcy Action of Borrower has occurred and is continuing, Administrative Agent shall disburse funds then available in Borrower will have access to the Excess Cash Flow Reserve Account and Excess Cash Flow Reserve Funds shall be disbursed by Administrative Agent to Borrower within three (3) Business Days of Borrower’s written request (provided that Borrower has not made a claim against such escrowed amounts or otherwise taken action to restrict Lender from applying such sums for the purpose of paying such items), to pay costs for cost and expenses in connection with the ownership, management and/or operation of the Property to the extent such amounts are not otherwise paid in accordance with the Cash Management Agreement Properties, including, without limitation for (i) payment of shortfalls in the payment of Debt Service and/or Mezzanine Debt Service, ; (ii) payment of shortfalls in the required deposits into the Reserve Accounts (in each case, to the extent required in the Loan this Agreement and the Cash Management Agreement), ; (iii) at Borrower’s option, principal prepayments of the Loan and the Mezzanine Loan, if any; (iv) at Borrower’s option, including any prepayment prepayments of the Loan and Mezzanine Loan which is are required to satisfy any Debt Yield test hereunder, hereunder or under the Mezzanine Loan Agreement (ivwhich prepayment shall be applied pro rata between the Loan and the Mezzanine Loan (which portion of such prepayment applicable to the Loan shall be applied to the Notes in accordance with Section 2.4.4 hereof)); (v) payment of any Operating Expenses (including any Capital Expenditures), ; (vvi) payment of management fees due and payable under the Management Agreement, ; (vivii) payment of emergency repairs and/or life-safety items, including any such repairs or items which are capital in natureCapital Expenditures, Administrative Agent hereby acknowledging that it shall endeavor to fund (or cause its Servicer to fund) such requests within one (1) Business Day of request by Borrower, provided further that any failure to fund such request within one (1) Business Day shall in no event create any liability for Administrative Agent hereunder; (viiviii) payment of Leasing Costs tenant improvement costs, tenant allowances, tenant relocation costs, tenant reimbursements, tenant inducement payments and leasing commission obligations or other expenditures required under Leases entered into pursuant to in accordance with the terms of this Agreement Section 5.1.20 hereof or existing as of the Closing Date; (viiiix) costs associated with Interest Rate Protection Agreements with respect to the LoanLoan or a Mezzanine Loan (if any), including Replacement Interest Rate Protection Agreements; (ix) payment of Sales , Substitute Interest Rate Protection Agreements and Occupancy TaxesConverted Interest Rate Protection Agreements; (x) vacant space preparation costs and marketing costs with respect to potential leasing at the Properties; (xi) payment of any shortfall of Net Proceeds with respect to the costs and expenses of Restoration of an Individual Property after a Casualty or Condemnation incurred by, or on behalf of, the Borrower in connection therewith; (xixii) payment of any fees and costs which are due payable pursuant to the Loan Documents or the Mezzanine Lender pursuant to the Mezzanine Loan Documents, including costs to extend the PLL Policy; (xiii) legal, audit and payable accounting costs (including actual costs incurred by Sponsor (directly or indirectly) and its service providers for back office accounting and for costs associated with the Properties or Borrower), provided, that such funds shall not be used for the legal fees incurred in connection with the Loanenforcement of Borrower’s or any Affiliates of Borrower’s rights pursuant to the Loan Documents or Mezzanine Borrower’s rights under the Mezzanine Loan Documents, respectively; (xiixiv) any Required REIT Distributions; (xv) Approved Alterations or Required Repairs; (xvi) costs and expenses payable pursuant to any PILOT Lease; (xvii) rent or other costs or expenses payable pursuant to any PILOT Lease (other than payments that are made by book entry and do not require any out-of-pocket expenses to be incurred by Borrower); (xviii) payment of condominium common charges, association fees or other expenses and charges of condominiums (if any) to the extent not paid as association fees out of the Lockbox Account; (xix) intentionally omitted, (xx) any corporate overhead reasonably allocated by Sponsor to exceed $250,000 in any calendar year in the aggregate, Properties and (xiiixxi) such other items as may be approved in writing by the Requisite LendersAdministrative Agent, as determined in the Requisite Lenders’ Administrative Agent’s reasonable discretion, discretion provided that, for purposes of clarity, no mezzanine lender Mezzanine Lender shall be able to approve items for disbursement from the Excess Cash Flow Reserve Account pursuant to this clause (xiiixxi). (b) Notwithstanding anything to the contrary set forth in clause (a) above, so long as no Bankruptcy Action of Borrower has occurred and is continuing, notwithstanding the existence of an Event of Default, Administrative Agent agrees to disburse Excess Cash Flow Reserve Funds to the extent on deposit with Administrative Agent on the applicable due date for the payment of (i) Taxes pursuant to Tax Bills (including Sales and Occupancy Taxes) directly to the applicable taxing authority in the event Tax Reserve Funds on deposit in the Tax and Insurance Reserve Account are not sufficient to pay such amounts on the date due and (ii) Insurance Premiums (if applicable) directly to the applicable insurer in the event Insurance Reserve Funds on deposit in the Tax and Insurance Reserve Account are not sufficient to pay such amounts on the date due. (c) Any Excess Cash Flow Reserve Funds remaining on deposit in the Excess Cash Flow Reserve Account on upon a Cash Sweep Cure Date or the date Borrower delivers an Excess Cash Flow Guaranty pursuant to Section 7.5.2(c) hereof shall be paid (i) provided a Cash Sweep Period under a Mezzanine Loan (if any) is then continuing or any amounts are then due and payable to Mezzanine Lender, to the Mezzanine Lender to be held by Mezzanine Lender pursuant to the Mezzanine Loan Agreement for the purposes described therein, or (ii) if no Mezzanine Loan is then outstanding or if there does not then exist a Cash Sweep Period under the Mezzanine Loan and all amounts due and payable to the Mezzanine Lender have been paid, to Borrower. Any Excess Cash Flow Reserve Funds remaining on deposit in the Excess Cash Flow Reserve Account after the Debt and all amounts due to Administrative Agent and Lender have been paid in full shall be paid to (y) to the most senior Mezzanine Lender to be held by such Mezzanine Lender pursuant to the related Mezzanine Loan Agreement for the same purposes as those described therein or (z) if the Mezzanine Loans are no longer outstanding, Borrower. (c) In lieu of Cash Management Bank depositing all Reserved Excess Cash Flow into the Excess Cash Flow Reserve Account in accordance with Section 7.5 hereof and Section 3(j) of the Cash Management Agreement and for so long as no Event of Default has occurred and is continuing, Borrower shall have the right to cause Excess Cash Flow Guarantor to deliver to Administrative Agent, for the benefit of Lender, the Excess Cash Flow Guaranty, provided, that as a condition precedent to the delivery of such Excess Cash Flow Guaranty to Administrative Agent, for the benefit of Lender, (i) Borrower shall deliver to Administrative Agent, at Borrower’s sole cost and expense, a legal opinion that the Excess Cash Flow Guaranty has been duly authorized, executed and delivered by Excess Cash Flow Guarantor, and that the Excess Cash Flow Guaranty is valid, binding and enforceable against Excess Cash Flow Guarantor in accordance with its terms, which opinions shall be in form and substance substantially similar to the opinions delivered by Xxxxxxxx’s counsel upon the closing of the Loan with respect to validity, authority, execution and enforceability, and which may be relied upon by Administrative Agent and (ii) if the Additional Insolvency Opinion Condition is satisfied, then Borrower shall deliver an Additional Insolvency Opinion reasonably acceptable to Administrative Agent, which takes into account such Excess Cash Flow Guaranty. In no instance shall Borrower be entitled to request, nor shall Administrative Agent be obligated to disburse, Reserved Excess Cash Flow to Borrower pursuant to this Section 7.5.2(c) in lieu of depositing the same into the Excess Cash Flow Reserve Account if (I) an Event of Default has occurred and is continuing, (II) such Reserved Excess Cash Flow is not guaranteed pursuant to the Excess Cash Flow Guaranty, and/or (III) such disbursement of such amounts would cause the Additional Insolvency Opinion Condition to be satisfied unless Borrower shall provide an Additional Insolvency Opinion in form and substance reasonably acceptable to Administrative Agent. For the avoidance of doubt, during the continuance of a Cash Sweep Period, (x) any Reserved Excess Cash Flow that is in excess of the amount of Excess Cash Flow guaranteed pursuant to the Excess Cash Flow Guaranty shall be deposited into the Excess Cash Flow Reserve Account and (y) all Free Excess Cash Flow shall be disbursed to a Non-Pledged Account designated by Borrower. Section

Release of Excess Cash Flow Reserve Fund. (a) So long as no Event of Default has occurred and is continuing and no Bankruptcy Action of Borrower has occurred and is continuing, Administrative Agent shall disburse funds then available in the Excess Cash Flow Reserve Account within three (3) Business Days of Borrower’s written request (provided that Borrower has not made a claim against such escrowed amounts or otherwise taken action to restrict Lender from applying such sums for the purpose of paying such items), to pay costs and expenses in connection with the ownership, management and/or operation of the Property to the extent such amounts are not otherwise paid in accordance with the Cash Management Agreement for (i) payment of shortfalls in the payment of Debt Service, (ii) payment of shortfalls in the required deposits into the Reserve Accounts (in each case, to the extent required in the Loan Agreement and the Cash Management Agreement), (iii) principal prepayments of the Loan at Borrower’s option, including any prepayment which is required to satisfy any Debt Yield test hereunder, (iv) payment of any Operating Expenses (including any Capital Expenditures), (v) payment of management fees due and payable under the Management Agreement, (vi) payment of emergency repairs and/or life-safety items, including any such repairs or items which are capital in nature, Administrative Agent hereby acknowledging that it shall endeavor to fund (or cause its Servicer to fund) such requests within one (1) Business Day of request by Borrower, provided further that any failure to fund such request within one (1) Business Day shall in no event create any liability for Administrative Agent hereunder; (vii) payment of Leasing Costs under Leases entered into pursuant to the terms of this Agreement or existing as of the Closing Date; (viii) costs associated with Interest Rate Protection Agreements with respect to the Loan, including Replacement Interest Rate Protection Agreements; (ix) payment of Sales and Occupancy Taxes; (x) payment of any shortfall of Net Proceeds with respect the costs of Restoration of an Individual Property after a Casualty or Condemnation incurred by, or on behalf of, Borrower in connection therewith; (xi) payment of any fees and costs which are due and payable in connection with the Loan; (xii) Required REIT Distributions, not to exceed $250,000 100,000 in any calendar year in the aggregate, and (xiii) such other items as may be approved in writing by the Requisite Lenders, as determined in the Requisite Lenders’ reasonable discretion, provided that, for purposes of clarity, no mezzanine lender shall be able to approve items for disbursement from the Excess Cash Flow Reserve Account pursuant to this clause (xiii). (b) Notwithstanding anything to the contrary set forth in clause (a) above, so long as no Bankruptcy Action of Borrower has occurred and is continuing, notwithstanding the existence of an Event of Default, Administrative Agent agrees to disburse Excess Cash Flow Reserve Funds to the extent on deposit with Administrative Agent on the applicable due date for the payment of (i) Taxes pursuant to Tax Bills (including Sales and Occupancy Taxes) directly to the applicable taxing authority in the event Tax Reserve Funds on deposit in the Tax and Insurance Reserve Account are not sufficient to pay such amounts on the date due and (ii) Insurance Premiums (if applicable) directly to the applicable insurer in the event Insurance Reserve Funds on deposit in the Tax and Insurance Reserve Account are not sufficient to pay such amounts on the date due. (c) Any Excess Cash Flow Reserve Funds remaining on deposit in the Excess Cash Flow Reserve Account on a Cash Sweep Cure Date shall be paid to Borrower.