Common use of Transfer or Encumbrance of Property Clause in Contracts

Transfer or Encumbrance of Property. (a) Borrower shall not cause or permit a Sale or Pledge of the Property or any part thereof or any legal or beneficial interest therein nor permit a Sale or Pledge of an interest in any Restricted Party or any Change of Control (in each case, a “Prohibited Transfer”), other than pursuant to Leases of space in the Improvements to Tenants in accordance with the provisions of Section 4.1.9, without the prior written consent of Lender. (b) A Prohibited Transfer shall include, but not be limited to, (i) an installment sales agreement wherein Borrower agrees to sell the Property or any part thereof for a price to be paid in installments; (ii) an agreement by Borrower leasing all or a substantial part of the Property for other than actual occupancy by a space tenant thereunder or a sale, assignment or other transfer of, or the grant of a security interest in, Borrower’s right, title and interest in and to any Leases or any Rents; (iii) if a Restricted Party is a corporation, any merger, consolidation or Sale or Pledge of such corporation’s stock or the creation or issuance of new stock in one or a series of transactions; (iv) if a Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the partnership interest of any general or limited partner or any profits or proceeds relating to such partnership interests or the creation or issuance of new partnership interests; (v) if a Restricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member or non-member manager (or if no managing member, any member) or the Sale or Pledge of the membership interest of any member or any profits or proceeds relating to such membership interest or the creation or issuance of new membership interests; (vi) if a Restricted Party is a trust or nominee trust, any merger, consolidation or the Sale or Pledge of the legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests; or (vii) the removal or the resignation of the Manager (including, without limitation, an Affiliated Manager) other than in accordance with Article VII. (c) Notwithstanding the provisions of Section 8.1(b), the following transfers shall not be deemed to be a Prohibited Transfer: (a) a transfer by devise or descent or by operation of law upon the death of a member, partner or shareholder of a Restricted Party; (b) the Sale or Pledge, in one or a series of transactions, of not more than forty-nine percent (49%) of the stock, limited partnership interests or non-managing membership interests (as the case may be) in a Restricted Party; provided, however, no such transfers shall result in a change in Control in the Restricted Party, a change in control of the Property or a Change in Control; no transfer shall be made to any Prohibited Person; as a condition to each such transfer, Lender shall receive not less than thirty (30) days prior written notice of such proposed transfer; and, if Borrower is a single member limited liability company on the date of this Agreement, no such transfer shall consist of the transfer of any interest in or admission of any person as a member in Borrower; (c) a transfer by Guarantor or REIT of a portion of its direct or indirect ownership interests in Borrower to an Approved Transferee, so long as (i) at the time of such transfer there exist no monetary defaults or Events of Default under the Loan Documents, (ii) at all times following such transfer, Guarantor or REIT owns at least twenty percent (20%) of the direct or indirect ownership interests in Borrower, (iii) at all times following such transfer, Guarantor or REIT continues to Control Borrower and there is no Change of Control of Guarantor or REIT, and (v) at all times following such transfer Guarantor or REIT or an Affiliate thereof is Manager; or (d) a Permitted Mezzanine Loan Lien in accordance with the provisions of Section 8.1(i). Notwithstanding the foregoing, Sponsor may pledge its direct or indirect ownership interests in Borrower as security for Sponsor’s obligations under its primary credit facility; provided that (i) such pledge shall not be subject to foreclosure, nor shall there be any conveyance in lieu thereof, nor shall there be any other action in respect of such pledged interests inconsistent with the consent and acknowledgement referred to in clause (iii) below, without Lender’s prior written consent; (ii) such pledge, by its express terms, shall be subject to the limitations on foreclosure and conveyance in lieu thereof set forth above; and (iii) the pledgee shall deliver such acknowledgments of and consents to the foregoing as Lender may request. Without limiting the foregoing, if Lender exercises the Mezzanine Option, the pledgee shall release its pledge on any of the ownership interest that form the collateral for the Mezzanine Loan (without limiting the rights of Sponsor, in accordance with this Section 8.1.3, to pledge to such pledgee other indirect ownership interests in Borrower that do not form the collateral for the Mezzanine Loan). (d) Lender reserves the right to condition the consent to a Prohibited Transfer requested hereunder upon (a) a modification of the terms hereof and on assumption of the Notes and the other Loan Documents as so modified by the proposed Prohibited Transfer, (b) receipt of payment of a transfer fee equal to one-half of one percent (0.50%) of the outstanding principal balance of the Loan and all of Lender’s expenses incurred in connection with such Prohibited Transfer, (c) receipt of Rating Agency Confirmation with respect to the transfer, (d) the proposed transferee’s continued compliance with the covenants set forth in this Agreement (including, without limitation, the covenants in Section 3.1.24) and the other Loan Documents, (e) a new manager for the Property and a new management agreement satisfactory to Lender, (f) a new guaranty(ies) and environmental indemnity, substantially in the form of the Guarantee and Environmental Indemnity delivered contemporaneously with this Agreement, from guarantor(s) and indemnitor(s) satisfactory to Lender, and (g) the satisfaction of such other conditions and/or legal opinions as Lender shall determine in its sole discretion to be in the interest of Lender. All expenses incurred by Lender shall be payable by Borrower whether or not Lender consents to the Prohibited Transfer. Lender shall not be required to demonstrate any actual impairment of its security or any increased risk of default hereunder in order to declare the Debt immediately due and payable upon a Prohibited Transfer made without Lender’s consent. This provision shall apply to each and every Prohibited Transfer, whether or not Lender has consented to any previous Prohibited Transfer. Notwithstanding anything to the contrary contained in this Section 8.1(d), in the event a substantive non-consolidation opinion was delivered to Lender and the Rating Agencies in connection with the closing of the Loan, and if any Prohibited Transfer results in any Person and its Affiliates owning in excess of forty-nine percent (49%) of the ownership interests in a Restricted Party, Borrower shall, prior to such transfer, and in addition to any other requirement for Lender consent contained herein, deliver a revised substantive non-consolidation opinion to Lender reflecting such Prohibited Transfer, which opinion shall be in form, scope and substance acceptable in all respects to Lender and the Rating Agencies. (e) Notwithstanding anything to the contrary set forth in this Section 8.1, the transfers restricted hereunder shall not include (i) any conveyance, assignment, sale, mortgaging, encumbrance, pledging, hypothecation, granting of a security interest in, granting of options with respect to, or other disposition (including in connection with any merger or consolidation) of any limited partnership interests in Guarantor (provided that after giving effect thereto REIT continues to Control Guarantor), or of any publicly traded stock in REIT, (ii) the conveyance, assignment, sale, pledge, hypothecation, granting of a security interest in, granting of options with respect to, or other disposition of stock in REIT, provided that, in the case of either clause (i) or clause (ii) above, (A) after giving effect to any such conveyance, assignment, sale or other disposition, the common stock of REIT shall be listed and traded on the New York Stock Exchange or other nationally recognized stock exchange and (B) in the event that more than forty nine percent (49%) of the common stock in REIT is conveyed, assigned, sold or otherwise disposed of, whether in one or a series of transactions, to any Person or Persons acting as a group, and as a result thereof, such Person or Persons have the power to elect, appoint or cause the election or appointment of at least a majority of the members of the Board of Directors of REIT, through beneficial ownership of the capital stock of REIT or otherwise, the prior written consent of Lender thereto shall have been obtained, which consent shall not be unreasonably withheld, conditioned or delayed, or (iii) the leasing of any space within the Property so long as Borrower complies with the provisions of the Loan Documents relating to such leasing activity. (f) Without limiting the provisions of this Section 8.1, in connection with any transfer permitted by this Section 8.1, if any such transfer results, directly or indirectly, in the ownership of ten percent (10%) or more of the interests in Borrower, Guarantor or REIT by any Person not currently the holder of ten percent (10%) or more of the interests in Borrower, Guarantor or REIT, then prior to any such transfer the following conditions shall be satisfied: (i) In connection with any such transfer, Lender shall have received not less than thirty (30) days prior to the date on which such transfer is to become effective: (A) prior written notice of such proposed transfer, (B) true and correct copies of all documentation that will be entered into with respect to the same, and (C) all appropriate papers reasonably requested by Lender that reflect the identity, organization, good standing, tax status and financial standing of the proposed transferee, which papers shall include certified copies of all documents relating to the organization and formation of transferee and of the entities, if any, which are partners or members of transferee and updated organizational charts reflecting such transfer, as well as all other documents and information reasonably requested by Lender (including such documents as it may require to confirm that such proposed transfer will satisfy the requirements of this Agreement for a transfer to an Approved Transferee, and for Lender and each Lender to undertake and approve such background checks and satisfy such “know-your-customer” requirements as may be required to be performed by it); (ii) Lender shall have determined that such proposed transfer will not result in any violation of the provisions of Section 4.1.1; and (iii) Lender shall have determined that, after giving effect to any such proposed transfer, the representations and covenants of Borrower set forth in Sections 3.1.24 and 3.1.7 of this Agreement shall be true and correct as if made immediately after giving effect thereto. (g) Lender’s consent to one sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Property shall not be deemed to be a waiver of Lender’s right to require such consent to any future occurrence of same. Any sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Property made in contravention of this paragraph shall be null and void and of no force and effect. (h) Borrower agrees to bear and shall pay or reimburse Lender on demand for all reasonable expenses (including, without limitation, reasonable attorneys’ fees and disbursements, title search costs and title insurance endorsement premiums) actually incurred by Lender in connection with the review, approval and documentation of any such sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer. (i) No Restricted Party shall incur any indebtedness that would be secured by the pledge of any direct or indirect ownership interests in any entity the principal asset, directly or indirectly, of which is any ownership interests in Borrower, unless such indebtedness is a Permitted Mezzanine Loan. Borrower shall, not less than twenty (20) days prior to the incurrence by any Restricted Party of any indebtedness that would be secured by the pledge of any direct or indirect ownership interests in any entity the principal asset, directly or indirectly, of which is any ownership interests in Borrower, deliver written notice thereof to Lender and provide to Lender copies of the proposed documentation for such mezzanine loan, together with such documentation and certifications of Borrower as Lender shall require in order to confirm that such indebtedness is a Permitted Mezzanine Loan. Lender reserves the right to condition its consent to any proposed mezzanine loan upon: (i) the delivery to Lender of information (including without limitation an Appraisal and such financial reports as Lender may require) confirming that such proposed mezzanine loan (A) is in a maximum principal amount (measured in the aggregate for such proposed mezzanine loan together with all other Permitted Mezzanine Loans that would remain in effect after the consummation of such proposed mezzanine loan) shall not exceed the lesser of $50,000,000 or the Permitted Mezzanine Loan Underwritten Amount; (B) is evidenced and secured by loan documents in form and substance reasonably acceptable to Lender based on forms used in comparable transactions, has a term expiring on or after the Maturity Date, involves cash management arrangements satisfactory to Lender, and is the subject of an intercreditor agreement between Lender and the proposed lender of such proposed mezzanine loan, which shall be in a customary form reasonably acceptable to the Lender; notwithstanding the foregoing, it is understood that during the twelve (12) month period following the Closing Date, the Appraised Value of the Property shall be based upon the Appraisal obtained by Lender prior to the Closing Date and that during the twelve (12) month period following Lender’s approval of any other Appraisal, the Appraised Value of the Property for these purposes shall be based upon such Appraisal, and that no new Appraisal shall be required for purposes of this Section 8.1(i)(i) during such periods; (ii) receipt by Lender of Rating Agency Confirmation with respect to the proposed loan; (iii) delivery to Lender of evidence that, after giving effect to the proposed mezzanine loan, Borrower will be in compliance with the covenants set forth in this Agreement (including, without limitation, the covenants in Section 3.1.24) and the other Loan Documents; (iv) Borrower having no direct or indirect liability for the obligations of the mezzanine borrower under the proposed mezzanine loan; (v) the delivery to Lender of a satisfactory non-consolidation opinion (which opinion shall be in form, scope and substance acceptable in all respects to Lender and the Rating Agencies), modified organizational documents and modifications of the Loan Documents to reflect the existence and terms of such mezzanine loan; and (vi) the Borrower of such Permitted Mezzanine Loan shall not be the Mezzanine Borrower as defined in Section 11.32. All expenses incurred by Lender in connection with its review of a proposed mezzanine loan (including, without limitation, legal fees and expenses in connection therewith, and in connection with the preparation, negotiation of an intercreditor agreement relating thereto) shall be payable by Borrower whether or not Lender consents to the proposed mezzanine loan.

Transfer or Encumbrance of Property. (a) Borrower shall not cause or permit a Sale or Pledge of the Property or any part thereof or any legal or beneficial interest therein nor permit a Sale or Pledge of an interest in any Restricted Party or any Change of Control (in each case, a “Prohibited Transfer”), other than pursuant to Leases of space in the Improvements to Tenants in accordance with the provisions of Section 4.1.9, without the prior written consent of Lender. (b) A Prohibited Transfer shall include, but not be limited to, (i) an installment sales agreement wherein Borrower agrees to sell the Property or any part thereof for a price to be paid in installments; (ii) an agreement by Borrower leasing all or a substantial part of the Property for other than actual occupancy by a space tenant thereunder or a sale, assignment or other transfer of, or the grant of a security interest in, Borrower’s right, title and interest in and to any Leases or any Rents; (iii) if a Restricted Party is a corporation, any merger, consolidation or Sale or Pledge of such corporation’s stock or the creation or issuance of new stock in one or a series of transactions; (iv) if a Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the partnership interest of any general or limited partner or any profits or proceeds relating to such partnership interests or the creation or issuance of new partnership interests; (v) if a Restricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member or non-member manager (or if no managing member, any member) or the Sale or Pledge of the membership interest of any member or any profits or proceeds relating to such membership interest or the creation or issuance of new membership interests; (vi) if a Restricted Party is a trust or nominee trust, any merger, consolidation or the Sale or Pledge of the legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests; or (vii) the removal or the resignation of the Manager (including, without limitation, an Affiliated Manager) other than in accordance with Article VII. (c) Notwithstanding the provisions of Section 8.1(b), the following transfers shall not be deemed to be a Prohibited Transfer: (a) a transfer by devise or descent or by operation of law upon the death of a member, partner or shareholder of a Restricted Party; (b) the Sale or Pledge, in one or a series of transactions, of not more than forty-nine percent (49%) of the stock, limited partnership interests or non-managing membership interests (as the case may be) in a Restricted Party; provided, however, no such transfers shall result in a change in Control in the Restricted Party, a change in control of the Property or a Change in Control; no transfer shall be made to any Prohibited Person; as a condition to each such transfer, Lender shall receive not less than thirty (30) days prior written notice of such proposed transfer; and, if Borrower is a single member limited liability company on the date of this Agreement, no such transfer shall consist of the transfer of any interest in or admission of any person as a member in Borrower; (c) a transfer by Guarantor or REIT of a portion of its direct or indirect ownership interests in Borrower to an Approved Transferee, so long as (i) at the time of such transfer there exist no monetary defaults or Events of Default under the Loan Documents, (ii) at all times following such transfer, Guarantor or REIT owns at least twenty percent (20%) of the direct or indirect ownership interests in Borrower, (iii) at all times following such transfer, Guarantor or REIT continues to Control Borrower and there is no Change of Control of Guarantor or REIT, and (v) at all times following such transfer Guarantor or REIT or an Affiliate thereof is Manager; or (d) a Permitted Mezzanine Loan Lien in accordance with the provisions of Section 8.1(i). Notwithstanding the foregoing, Sponsor may pledge its direct or indirect ownership interests in Borrower as security for Sponsor’s obligations under its primary credit facility; provided that (i) such pledge shall not be subject to foreclosure, nor shall there be any conveyance in lieu thereof, nor shall there be any other action in respect of such pledged interests inconsistent with the consent and acknowledgement referred to in clause (iii) below, without Lender’s prior written consent; (ii) such pledge, by its express terms, shall be subject to the limitations on foreclosure and conveyance in lieu thereof set forth above; and (iii) the pledgee shall deliver such acknowledgments of and consents to the foregoing as Lender may request. Without limiting the foregoing, if Lender exercises the Mezzanine Option, the pledgee shall release its pledge on any of the ownership interest that form the collateral for the Mezzanine Loan (without limiting the rights of Sponsor, in accordance with this Section 8.1.3, to pledge to such pledgee other indirect ownership interests in Borrower that do not form the collateral for the Mezzanine Loan). (d) Lender reserves the right to condition the consent to a Prohibited Transfer requested hereunder upon (a) a modification of the terms hereof and on assumption of the Notes and the other Loan Documents as so modified by the proposed Prohibited Transfer, (b) receipt of payment of a transfer fee equal to one-–half of one percent (0.50%) of the outstanding principal balance of the Loan and all of Lender’s expenses incurred in connection with such Prohibited Transfer, (c) receipt of Rating Agency Confirmation with respect to the transfer, (d) the proposed transferee’s continued compliance with the covenants set forth in this Agreement (including, without limitation, the covenants in Section 3.1.24) and the other Loan Documents, (e) a new manager for the Property and a new management agreement satisfactory to Lender, (f) a new guaranty(ies) and environmental indemnity, substantially in the form of the Guarantee and Environmental Indemnity delivered contemporaneously with this Agreement, from guarantor(s) and indemnitor(s) satisfactory to Lender, and (g) the satisfaction of such other conditions and/or legal opinions as Lender shall determine in its sole discretion to be in the interest of Lender. All expenses incurred by Lender shall be payable by Borrower whether or not Lender consents to the Prohibited Transfer. Lender shall not be required to demonstrate any actual impairment of its security or any increased risk of default hereunder in order to declare the Debt immediately due and payable upon a Prohibited Transfer made without Lender’s consent. This provision shall apply to each and every Prohibited Transfer, whether or not Lender has consented to any previous Prohibited Transfer. Notwithstanding anything to the contrary contained in this Section 8.1(d), in the event a substantive non-consolidation opinion was delivered to Lender and the Rating Agencies in connection with the closing of the Loan, and if any Prohibited Transfer results in any Person and its Affiliates owning in excess of forty-nine percent (49%) of the ownership interests in a Restricted Party, Borrower shall, prior to such transfer, and in addition to any other requirement for Lender consent contained herein, deliver a revised substantive non-consolidation opinion to Lender reflecting such Prohibited Transfer, which opinion shall be in form, scope and substance acceptable in all respects to Lender and the Rating Agencies. (e) Notwithstanding anything to the contrary set forth in this Section 8.1, the transfers restricted hereunder shall not include (i) any conveyance, assignment, sale, mortgaging, encumbrance, pledging, hypothecation, granting of a security interest in, granting of options with respect to, or other disposition (including in connection with any merger or consolidation) of any limited partnership interests in Guarantor (provided that after giving effect thereto REIT continues to Control Guarantor), or of any publicly traded stock in REIT, (ii) the conveyance, assignment, sale, pledge, hypothecation, granting of a security interest in, granting of options with respect to, or other disposition of stock in REIT, provided that, in the case of either clause (i) or clause (ii) above, (A) after giving effect to any such conveyance, assignment, sale or other disposition, the common stock of REIT shall be listed and traded on the New York Stock Exchange or other nationally recognized stock exchange and (B) in the event that more than forty nine percent (49%) of the common stock in REIT is conveyed, assigned, sold or otherwise disposed of, whether in one or a series of transactions, to any Person or Persons acting as a group, and as a result thereof, such Person or Persons have the power to elect, appoint or cause the election or appointment of at least a majority of the members of the Board of Directors of REIT, through beneficial ownership of the capital stock of REIT or otherwise, the prior written consent of Lender thereto shall have been obtained, which consent shall not be unreasonably withheld, conditioned or delayed, or (iii) the leasing of any space within the Property so long as Borrower complies with the provisions of the Loan Documents relating to such leasing activity. (f) Without limiting the provisions of this Section 8.1, in connection with any transfer permitted by this Section 8.1, if any such transfer results, directly or indirectly, in the ownership of ten percent (10%) or more of the interests in Borrower, Guarantor or REIT by any Person not currently the holder of ten percent (10%) or more of the interests in Borrower, Guarantor or REIT, then prior to any such transfer the following conditions shall be satisfied: (i) In connection with any such transfer, Lender shall have received not less than thirty (30) days prior to the date on which such transfer is to become effective: (A) prior written notice of such proposed transfer, (B) true and correct copies of all documentation that will be entered into with respect to the same, and (C) all appropriate papers reasonably requested by Lender that reflect the identity, organization, good standing, tax status and financial standing of the proposed transferee, which papers shall include certified copies of all documents relating to the organization and formation of transferee and of the entities, if any, which are partners or members of transferee and updated organizational charts reflecting such transfer, as well as all other documents and information reasonably requested by Lender (including such documents as it may require to confirm that such proposed transfer will satisfy the requirements of this Agreement for a transfer to an Approved Transferee, and for Lender and each Lender to undertake and approve such background checks and satisfy such “know-your-customer” requirements as may be required to be performed by it); (ii) Lender shall have determined that such proposed transfer will not result in any violation of the provisions of Section 4.1.1; and (iii) Lender shall have determined that, after giving effect to any such proposed transfer, the representations and covenants of Borrower set forth in Sections 3.1.24 and 3.1.7 of this Agreement shall be true and correct as if made immediately after giving effect thereto. (g) Lender’s consent to one sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Property shall not be deemed to be a waiver of Lender’s right to require such consent to any future occurrence of same. Any sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Property made in contravention of this paragraph shall be null and void and of no force and effect. (h) Borrower agrees to bear and shall pay or reimburse Lender on demand for all reasonable expenses (including, without limitation, reasonable attorneys’ fees and disbursements, title search costs and title insurance endorsement premiums) actually incurred by Lender in connection with the review, approval and documentation of any such sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer. (i) No Restricted Party shall incur any indebtedness that would be secured by the pledge of any direct or indirect ownership interests in any entity the principal asset, directly or indirectly, of which is any ownership interests in Borrower, unless such indebtedness is a Permitted Mezzanine Loan. Borrower shall, not less than twenty (20) days prior to the incurrence by any Restricted Party of any indebtedness that would be secured by the pledge of any direct or indirect ownership interests in any entity the principal asset, directly or indirectly, of which is any ownership interests in Borrower, deliver written notice thereof to Lender and provide to Lender copies of the proposed documentation for such mezzanine loan, together with such documentation and certifications of Borrower as Lender shall require in order to confirm that such indebtedness is a Permitted Mezzanine Loan. Lender reserves the right to condition its consent to any proposed mezzanine loan upon: (i) the delivery to Lender of information (including without limitation an Appraisal and such financial reports as Lender may require) confirming that such proposed mezzanine loan (A) is in a maximum principal amount (measured in the aggregate for such proposed mezzanine loan together with all other Permitted Mezzanine Loans that would remain in effect after the consummation of such proposed mezzanine loan) shall not exceed the lesser of $50,000,000 or the Permitted Mezzanine Loan Underwritten Amount; (B) is evidenced and secured by loan documents in form and substance reasonably acceptable to Lender based on forms used in comparable transactions, has a term expiring on or after the Maturity Date, involves cash management arrangements satisfactory to Lender, and is the subject of an intercreditor agreement between Lender and the proposed lender of such proposed mezzanine loan, which shall be in a customary form reasonably acceptable to the Lender; notwithstanding the foregoing, it is understood that during the twelve (12) month period following the Closing Date, the Appraised Value of the Property shall be based upon the Appraisal obtained by Lender prior to the Closing Date and that during the twelve (12) month period following Lender’s approval of any other Appraisal, the Appraised Value of the Property for these purposes shall be based upon such Appraisal, and that no new Appraisal shall be required for purposes of this Section 8.1(i)(i) during such periods; (ii) receipt by Lender of Rating Agency Confirmation with respect to the proposed loan; (iii) delivery to Lender of evidence that, after giving effect to the proposed mezzanine loan, Borrower will be in compliance with the covenants set forth in this Agreement (including, without limitation, the covenants in Section 3.1.24) and the other Loan Documents; (iv) Borrower having no direct or indirect liability for the obligations of the mezzanine borrower under the proposed mezzanine loan; (v) the delivery to Lender of a satisfactory non-consolidation opinion (which opinion shall be in form, scope and substance acceptable in all respects to Lender and the Rating Agencies), modified organizational documents and modifications of the Loan Documents to reflect the existence and terms of such mezzanine loan; and (vi) the Borrower of such Permitted Mezzanine Loan shall not be the Mezzanine Borrower as defined in Section 11.32. All expenses incurred by Lender in connection with its review of a proposed mezzanine loan (including, without limitation, legal fees and expenses in connection therewith, and in connection with the preparation, negotiation of an intercreditor agreement relating thereto) shall be payable by Borrower whether or not Lender consents to the proposed mezzanine loan.