INTERCREDITOR AGREEMENT

Exhibit 10.10

INTERCREDITOR AGREEMENT

by and among

GOLDMAN SACHS MORTGAGE COMPANY

CITICORP NORTH AMERICA, INC.

and

SLG STARS MORTGAGE LOAN LLC

collectively, as Senior Lender

GOLDMAN SACHS MORTGAGE COMPANY

and

CITICORP NORTH AMERICA, INC.

collectively, as Senior Mezzanine Lender

and

GOLDMAN SACHS MORTGAGE COMPANY

CITICORP NORTH AMERICA, INC.

and

SLG STARS MEZZ LOAN LLC

collectively, as Junior Mezzanine Lender

Dated as of August 22, 2008

TABLE OF CONTENTS

 

INTERCREDITOR AGREEMENT

THIS INTERCREDITOR AGREEMENT (this “ Agreement ”), dated as of August 22, 2008 by and among GOLDMAN SACHS MORTGAGE COMPANY, a New York limited partnership (“ GSMC ”), CITICORP NORTH AMERICA, INC., a New York corporation (“ Citigroup ”), and SLG STARS MORTGAGE LOAN LLC (successor-in-interest to SL Greene Realty Corp.), a Delaware limited liability company (“ SL Green Senior ”), collectively as senior lender (in such capacity, “ Senior Lender ”), GSMC and Citigroup collectively as senior mezzanine lender (in such capacity, “ Senior Mezzanine Lender ”) and GSMC, Citigroup and SLG STARS MEZZ LOAN LLC (successor-in-interest to SL Greene Realty Corp.), a Delaware limited liability company (“ SL Green Junior ”), collectively as junior mezzanine lender (in such capacity, “ Junior Mezzanine Lender ”). The Senior Mezzanine Lender and Junior Mezzanine Lender are each a “ Mezzanine Lender ” and, collectively, “ Mezzanine Lenders ”.

RECITALS

WHEREAS, pursuant to the terms, provisions and conditions set forth in that certain Loan Agreement, dated as of April 1, 2008, between the borrowers named therein (collectively, “ Borrower ”) and Goldman Sachs Commercial Mortgage Capital, L.P., a Delaware limited partnership and predecessor-in-interest to Goldman Sachs Mortgage Company (“ GSMC ”), Citicorp and SL Green Realty Corp. as successor-in-interest to SLG Stars Mortgage Loan LLC (as amended by that certain Amendment to Loan Agreement among GSMC, Citicorp and SL Green Realty Corp, as lender, and Borrower, as borrower, dated as of August 22, 2008, the “ Senior Loan Agreement ”), Senior Lender has made a loan to Borrower in the original principal amount of $250,000,000 (the “ Senior Loan ”), which Senior Loan is evidenced by three promissory notes made by Borrower to each of the Senior Lenders in the aggregate amount of the Senior Loan (the “ Senior Note ”), and secured by, among other things, certain mortgages made by the Borrower in favor of Senior Lender (collectively, the “ Senior Mortgages ”), which Senior Mortgages encumber the real property more particularly described therein (collectively, the “ Premises ”);

WHEREAS, pursuant to the terms, provisions and conditions set forth in that certain Amended and Restated Senior Mezzanine Loan Agreement, dated as of April 1, 2008, and amended as of August 22, 2008, between the borrowers named therein (“ Senior Mezzanine Borrower ”) and Senior Mezzanine Lender (the “ Senior Mezzanine Loan Agreement ”), Senior Mezzanine Lender is the owner and holder of a loan to Senior Mezzanine Borrower in the original principal amount of $500,000,000 (the “ Senior Mezzanine Loan ”), which Senior Mezzanine Loan is evidenced by two promissory notes made by Senior Mezzanine Borrower in favor of each Senior Mezzanine Lender in the aggregate amount of the Senior Mezzanine Loan (the “ Senior Mezzanine Note ”), and secured by, among other things, a Pledge and Security Agreement (Upper Tier) and a Pledge and Security Agreement (Lower Tier) from Senior Mezzanine Borrower pursuant to which Senior Mezzanine Lender is granted a first priority security interest in certain direct and indirect ownership interests of Senior Mezzanine Borrower in the Borrower (collectively, the “ Senior Pledge Agreement ”);

WHEREAS, pursuant to the terms, provisions and conditions set forth in that certain Junior Mezzanine Loan Agreement (the “ Junior Mezzanine Loan Agreement ”), dated as of August 22, 2008, between GKK Stars Junior Mezz 2 LLC (“ Junior Mezzanine Borrower ”), as borrower, and GSMC, Citicorp and SL Green Realty Corp. (as predecessor-in-interest to SLG Stars Mezz Loan LLC ), as lender, Junior Mezzanine Lender is the owner and holder of a loan to Junior Mezzanine Borrower in the original principal amount of $99,329,673.13 (the “ Junior Mezzanine Loan ”), which Junior Mezzanine Loan is evidenced by three promissory notes made by Junior Mezzanine Borrower in favor of each Junior Mezzanine Lender in the aggregate amount of the Junior Mezzanine Loan (the collectively, “ Junior Mezzanine Note ”), and secured by, among other things, a Pledge and Security from Junior Mezzanine Borrower pursuant to which Junior Mezzanine Lender is granted a first priority security interest in the direct ownership interests of Junior Mezzanine Borrower in the Senior Mezzanine Borrower (collectively, the “ Junior Pledge Agreement ”);

WHEREAS , the parties comprising Senior Lender have entered into that certain Co-Lender Agreement (the “ Senior Co-Lender Agreement ”) dated as of August 22, 2008, to set forth certain of their respective rights with respect to the Senior Loan

WHEREAS , the parties comprising Junior Mezzanine Lender have entered into that certain Co-Lender Agreement (the “ Junior Co-Lender Agreement ”) dated as of August 22, 2008, to set forth certain of their respective rights with respect to the Junior Mezzanine Loan;

WHEREAS, concurrently herewith SL Green Realty Corp. is transferring (i) 100% of its interest in the Senior Loan to SL Green Senior and (ii) 100% of its interest in the Junior Mezzanine Loan to SL Green Junior; and

WHEREAS, Senior Lender, Senior Mezzanine Lender and Junior Mezzanine Lender desire to enter into this Agreement to provide for the relative priority of the Senior Loan Documents (as such term is hereinafter defined), the Senior Mezzanine Loan Documents (as such term is hereinafter defined) and the Junior Mezzanine Loan Documents (as such term is hereinafter defined) on the terms and conditions hereinbelow set forth, and to evidence certain agreements with respect to the relationship among the Senior Mezzanine Loan and the Senior Mezzanine Loan Documents, the Junior Mezzanine Loan and the Junior Mezzanine Loan Documents and the Senior Loan and the Senior Loan Documents;

NOW, THEREFORE, in consideration of the foregoing recitals and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Senior Lender, Senior Mezzanine Lender and Junior Mezzanine Lender hereby agree as follows:

Section 1.         Certain Definitions; Rules of Construction .

(a)        As used in this Agreement, the following capitalized terms shall have the following meanings:

“ Affiliate ” means, as to any particular Person, any Person directly or indirectly, through one or more intermediaries, Controlling, Controlled by or under common Control with the Person or Persons in question.

 

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“ Agreement ” means this Agreement, as the same may be amended, modified and in effect from time to time, pursuant to the terms hereof.

“ Assignment of Interest Rate Cap ” means, as the context may require, the Collateral Assignment of Interest Rate Cap Agreement by Senior Mezzanine Borrower for the benefit of Senior Mezzanine Lender and/or the Collateral Assignment of Interest Rate Cap Agreement by Junior Mezzanine Borrower for the benefit of Junior Mezzanine Lender.

“ Award ” has the meaning provided in Section 9(d) hereof.

“ Borrower ” has the meaning provided in the Recitals hereto.

“ Borrower Group ” has the meaning provided in Section 10(c) hereof.

“ Business Day ” means any day other than (i) a Saturday and a Sunday and (ii) a day on which federally insured depository institutions in the State of New York or the state in which the offices of Senior Lender, Senior Mezzanine Lender, Junior Mezzanine Lender, their respective Servicers, or their respective Servicers’ collection account are located are authorized or obligated by law, governmental decree or executive order to be closed.

“ CDO ” has the meaning provided in the definition of the term “Qualified Transferee.”

“ CDO Asset Manager ” with respect to any Securitization Vehicle which is a CDO, shall mean the entity which is responsible for managing or administering a Mezzanine Loan as an underlying asset of such Securitization Vehicle or, if applicable, as an asset of any Intervening Trust Vehicle (including, without limitation, the right to exercise any consent and control rights available to the holder of the related Mezzanine Loan).

“ Certificates ” means any securities (including all classes thereof) representing beneficial ownership interests in the Senior Loan or in a pool of mortgage loans including the Senior Loan issued in connection with a Securitization of the Senior Loan.

“ Conduit ” has the meaning set forth in Section 15(b) hereof.

“ Conduit Credit Enhancer ” has the meaning set forth in Section 15(b) hereof.

“ Conduit Inventory Loan ” has the meaning set forth in Section 15(b) hereof.

“ Continuing Senior Loan Event of Default ” means an Event of Default under the Senior Loan for which (i) Senior Lender has provided notice of such Event of Default to each Mezzanine Lender in accordance with Section 11(a) of this Agreement and (ii) the cure period provided to each Mezzanine Lender in Section 11(a) of this Agreement has expired.

“ Continuing Senior Mezzanine Loan Event of Default ” means an Event of Default under the Senior Mezzanine Loan for which (i) Senior Mezzanine Lender has provided notice of such Event of Default to Junior Mezzanine Lender in accordance with Section 11(e) of

 

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this Agreement and (ii) the cure period provided to Junior Mezzanine Lender in Section 11(f) or 11(g) of this Agreement, as applicable, has expired.

“ Control ” means the ownership, directly or indirectly, in the aggregate of more than fifty percent (50%) of the beneficial ownership interests of an entity and the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of an entity, whether through the ability to exercise voting power, by contract or otherwise. The terms “Controlled by,” “Controlling” and “under common Control with” shall have the respective correlative meanings thereto.

“ Directing Mezzanine Lender ” has the meaning provided in Section 4(c) hereof.

“ Directing Senior Lender ” has the meaning provided in Section 4(e) hereof.

“ Eligibility Requirements ” means, with respect to any Person, that such Person (i) has total assets (in name or under management) in excess of $600,000,000 and (except with respect to a pension advisory firm, asset manager or similar fiduciary) capital/statutory surplus or shareholder’s equity of $250,000,000, and (ii) is regularly engaged in the business of making or owning commercial real estate loans (including mezzanine loans, b-notes, loan participations, loans held through repurchase transactions and loans held indirectly through interests in securitizations) or owning or managing interests (either directly or through funds under management) in commercial properties.

“ Enforcement Action ” means any (i) judicial or non-judicial foreclosure proceeding, the exercise of any power of sale, the taking of a deed or assignment in lieu of foreclosure, the obtaining of a receiver or the taking of any other enforcement action against the Premises or Borrower, including, without limitation, the taking of possession or control of the Premises, (ii) acceleration of, or demand or action taken in order to collect, all or any indebtedness secured by the Premises (other than giving of notices of default and statements of overdue amounts) or (iii) exercise of any right or remedy available to Senior Lender under the Senior Loan Documents, at law, in equity or otherwise with respect to Borrower and/or the Premises.

“ Equity Collateral ” means, as the context may require, all of the equity interests in the Borrower pledged pursuant to the Senior Mezzanine Loan Documents and/or all of the equity interests in Senior Mezzanine Borrower pledged pursuant to the Junior Mezzanine Loan Documents and all products and proceeds of such equity collateral.

“ Equity Collateral Enforcement Action ” means any action or proceeding or other exercise of a Mezzanine Lender’s rights and remedies commenced by such Mezzanine Lender (other than the giving of notices of default and statements of overdue amounts), in law or in equity, or otherwise, in order to realize upon the Equity Collateral, in whole or in part, or any transaction, whether in the nature of a transfer in lieu of foreclosure or otherwise, in order to acquire the Equity Collateral, in whole or in part.

“ Event of Default ” as used herein means (i) with respect to the Senior Loan and the Senior Loan Documents, any Event of Default (as defined therein) thereunder which has occurred and is continuing (i.e., has not been cured by the Borrower or by a Mezzanine Lender in

 

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accordance with the terms of this Agreement after the expiration of all notice and cure periods under this Agreement), (ii) with respect to the Senior Mezzanine Loan and the Senior Mezzanine Loan Documents, any Event of Default (as defined therein) thereunder which has occurred and is continuing (i.e., has not been cured by Senior Mezzanine Borrower or Junior Mezzanine Lender in accordance with the terms of this Agreement after the expiration of all notice and cure periods under this Agreement) and (iii) with respect to the Junior Mezzanine Loan and the Junior Mezzanine Loan Documents, any Event of Default (as defined therein) thereunder which has occurred and is continuing (i.e., has not been cured by Junior Mezzanine Borrower).

“ Ground Lease ” has the meaning set forth in the Senior Loan Agreement.

“ Ground Lease Default ” has the meaning provided in Section 14(h) hereof.

“ Initial Non-Monetary Cure Period ” has the meaning ascribed to such term in Section 11 .

“ Intervening Trust Vehicle ” with respect to any Securitization Vehicle which is a CDO, shall mean a trust vehicle or entity which holds the Mezzanine Loan as collateral securing (in whole or in part) any obligation or security held by such Securitization Vehicle as collateral for the CDO.

“ Junior Mezzanine Borrower ” has the meaning ascribed to such term in the Recitals hereto.

“ Junior Mezzanine Borrower Group ” has the meaning ascribed to such term in Section 10 .

“ Junior Mezzanine Lender ” has the meaning ascribed to such term in the first paragraph of this Agreement.

“ Junior Mezzanine Loan ” has the meaning ascribed to such term in the Recitals hereto.

“ Junior Mezzanine Loan Agreement ” has the meaning ascribed to such term in the Recitals hereto.

“ Junior Mezzanine Loan Documents ” means the Junior Mezzanine Loan Agreement, the Junior Mezzanine Note and the Junior Pledge Agreement, together with the Loan Documents, as defined in the Junior Mezzanine Loan Agreement, as any of the foregoing may be modified, amended, extended, supplemented, restated or replaced from time to time, subject to the limitations and agreements contained in this Agreement.

“ Junior Mezzanine Loan Liabilities ” shall mean, collectively, all of the indebtedness, liabilities and obligations of Junior Mezzanine Borrower evidenced by the Junior Mezzanine Loan Documents and all amounts due or to become due pursuant to the Junior Mezzanine Loan Documents, including, without limitation, interest thereon and any other amounts payable in respect thereof or in connection therewith, any late charges, default interest, prepayment fees or premiums, exit fees, advances and post-petition interest.

 

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“ Junior Mezzanine Loan Modification ” has the meaning provided in Section 6(b) hereof.

“ Junior Mezzanine Note ” has the meaning ascribed to such term in the Recitals hereto.

“ Junior Pledge Agreement ” has the meaning ascribed to such term in the Recitals hereto.

“ Loan Pledgee ” has the meaning provided in Section 15 hereof.

“ Loan Purchase Price ” has the meaning provided in Section 13(a) hereof.

“ Mezzanine Loan ” means the Senior Mezzanine Loan and/or Junior Mezzanine Loan, individually or collectively, as the context may require. As the context requires, the Mezzanine Loans (and the Mezzanine Loan Documents related to such Mezzanine Loans) shall have the following order or priority: (i) first, Senior Mezzanine Loan (and the Senior Mezzanine Loan Documents; and (ii) second, Junior Mezzanine Loan (and the Junior Mezzanine Loan Documents).

“ Mezzanine Loan Agreement ” means the Senior Mezzanine Loan Agreement and/or the Junior Mezzanine Loan Agreement, individually or collectively, as the context may require.

“ Mezzanine Loan Default Notice ” has the meaning ascribed to such term in Section 11 .

“ Mezzanine Loan Documents ” means the Senior Mezzanine Loan Documents and/or the Junior Mezzanine Loan Documents, individually or collectively, as the context may require.

“ Mezzanine Loan Liabilities ” means the Senior Mezzanine Loan Liabilities and/or the Junior Mezzanine Loan Liabilities, individually or collectively, as the context may require.

“ Mezzanine Loan Modification ” has the meaning ascribed to such term in Section 7(b) .

“ Mezzanine Loan Monetary Cure Period ” has the meaning ascribed to such term in Section 11 .

“ Mezzanine Loan Non-Monetary Cure Period ” has the meaning ascribed to such term in Section 12 .

“ Mezzanine Note(s) ” means the Senior Mezzanine Note and/or the Junior Mezzanine Note, individually or collectively, as the context may require

 

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“ Monetary Cure Period ” means, with respect to each Mezzanine Lender, the applicable cure period provided in Section 12(b) for a monetary default identified in a Senior Loan Default Notice.

“ Moody’s ” means Moody’s Investors Services, Inc.

“ Non-Monetary Cure Period ” means, with respect to each Mezzanine Lender, the applicable cure period provided in Section 12(c) for a non-monetary default identified in a Senior Loan Default Notice.

“ Permitted Fund Manager ” means any Person that on the date of determination is (i) one of the entities listed on Exhibit A or any other nationally-recognized manager of investment funds investing in debt or equity interests relating to commercial real estate, (ii) investing through a fund with committed capital of at least $250,000,000 and (iii) not subject to a Proceeding.

“ Person ” means any individual, sole proprietorship, corporation, general partnership, limited partnership, limited liability company or partnership, joint venture, association, joint stock company, bank, trust, estate unincorporated organization, any federal, state, county or municipal government (or any agency or political subdivision thereof) endowment fund or any other form of entity.

“ Pledge ” has the meaning provided in Section 15 hereof.

“ Premises ” has the meaning provided in the Recitals hereto.

“ Proceeding ” has the meaning provided in Section 10(c) hereof.

“ Property Manager ” means the property manager of the Premises.

“ Protective Advances ” means all sums advanced for the purpose of paying real estate taxes (including special payments in lieu of real estate taxes), maintenance costs, insurance premiums or other items (including capital items) reasonably necessary to protect the Premises or the Separate Collateral, respectively, from forfeiture, casualty, loss or waste, including, with respect to the Senior Loan or a Mezzanine Loan, amounts advanced or otherwise paid by a Mezzanine Lender pursuant to Section 11 hereof.

“ Purchase Option Notice ” has the meaning provided in Section 13(a) hereof.

“ Qualified Manager ” shall mean a reputable management company having at least five (5) years’ experience in the management of at least five (5) properties substantially similar to the Premises, which at the time of its engagement as property manager manages leasable square footage of the same property type as the Premises equal to the lesser of (x) 1,000,000 leasable square feet and (y) five (5) times the leaseable square feet of the Premises, which management company is not the subject of a bankruptcy or similar insolvency proceeding.

“ Qualified Transferee ” means (i) Goldman Sachs Mortgage Company, Citicorp North America, Inc., SL Green Realty Corp., SLG Stars Mortgage Loan LLC, SLG Stars Mezz

 

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Loan LLC, KBS Debt Holdings, LLC or any of their respective Affiliates or (ii) one or more of the following:

(A)        a real estate investment trust, bank, saving and loan association, investment bank, insurance company, trust company, commercial credit corporation, pension plan, pension fund or pension advisory firm, mutual fund, government entity or plan, real estate investment fund (including a fund established for the purpose of purchasing real estate debt instruments) provided that any such Person referred to in this clause (A)  satisfies the Eligibility Requirements;

(B)        an investment company, money management firm or “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act of 1933, as amended, or an institutional “accredited investor” within the meaning of Regulation D under the Securities Act of 1933, as amended, provided that any such Person referred to in this clause (B)  satisfies the Eligibility Requirements;

(C)        an institution substantially similar to any of the foregoing entities described in clauses (ii)(A) or (ii)(B) above or clause (ii)(F) below that satisfies the Eligibility Requirements;

(D)        any entity Controlled by, Controlling or under common Control with, one or more of any of the entities described in clause (i) or clauses (ii)(A), (ii)(B) or (ii)(C) above or clauses (ii)(F) , or (ii)(G) below;

(E)        a Qualified Trustee (or in the case of a CDO, a single purpose bankruptcy-remote entity which contemporaneously assigns or pledges its interest in the Mezzanine Loan or a participation interest therein to a Qualified Trustee) in connection with (A) a securitization of, (B) the creation of collateralized debt obligations (“ CDO ”) secured by, or (C) a financing through an “owner trust” of, a Mezzanine Loan or any interest therein (any of the foregoing, a “ Securitization Vehicle ”), provided that (1) one or more classes of securities issued by such Securitization Vehicle is initially rated at least investment grade by each of the Rating Agencies which assigned a rating to one or more classes of securities issued in connection with a Securitization (it being understood that with respect to any Rating Agency that assigned such a rating to the securities issued by such Securitization Vehicle, a Rating Agency Confirmation will not be required in connection with a transfer of a Mezzanine Loan (or any interest therein) to such Securitization Vehicle); (2) in the case of a Securitization Vehicle that is not a CDO, the special servicer of such Securitization Vehicle has a Required Special Servicer Rating (such entity, an “Approved Servicer”) and such Approved Servicer is required to service and administer such Mezzanine Loan in accordance with servicing arrangements for the assets held by the Securitization Vehicle which require that such Approved Servicer act in accordance with a servicing standard notwithstanding any contrary direction or instruction from any other Person; or (3) in the case of a Securitization Vehicle that is a CDO, the CDO Asset Manager (and, if applicable, each Intervening Trust Vehicle that is not administered and managed by a Qualified Trustee, or a CDO Asset Manager which is a Qualified Transferee) are each a Qualified Transferee under clauses (A), (B), (C), (D), (F) or (G) of this definition; or

 

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(F)        an investment fund, limited liability company, limited partnership or general partnership where a Mezzanine Lender or a Permitted Fund Manager or an entity that is otherwise a Qualified Transferee under clauses (ii)(A) , (B) , (C) , (D)  or (G)  of this definition acts as a general partner, managing member or fund manager and at least 50% of the equity interests in such investment vehicle are owned, directly or indirectly, by one or more entities that are otherwise Qualified Transferees under clauses (ii)(A) , (B) , (C) , (D)  or (G)  of this definition investing through a fund acts as a general partner, acting partner, managing member or fund manager and at least 50% of the equity interests in such investment vehicle are owned, directly or indirectly, by one or more entities that are otherwise Qualified Transferees under clauses (ii)(A), (B), (C), (D) or (G) of this definition; or

(G)        any other lender or entity which has been approved as a Qualified Transferee for purposes hereof by Senior Lender (prior to a Securitization) and, if a Securitization has occurred, by the Rating Agencies; or

(H)        any Qualified Transferee under any of the foregoing clauses that is acting in an agency capacity for a syndicate of lenders, provided more than 50% of the committed loan amounts or outstanding loan balance are owned by lenders in the syndicate that are themselves Qualified Transferees.

“ Qualified Trustee ” means (i) a corporation, national bank, national banking association or a trust company, organized and doing business under the laws of any state or the United States of America, authorized under such laws to exercise corporate trust powers and to accept the trust conferred, having a combined capital and surplus of at least $100,000,000 and subject to supervision or examination by federal or state authority, (ii) an institution insured by the Federal Deposit Insurance Corporation or (iii) an institution whose long-term senior unsecured debt is rated either of the then in effect top two rating categories of each of the Rating Agencies.

“ Rating Agencies ” means, prior to a Securitization, each of S&P, Moody’s Investors Service, Inc., and Fitch, Inc., or any other nationally-recognized statistical rating agency which has been designated by Senior Lender and, after a Securitization, shall mean any of the foregoing that have rated any of the Certificates.

“ Rating Agency Confirmation ” means each of the Rating Agencies shall have confirmed in writing that the occurrence of the event with respect to which such Rating Agency Confirmation is sought shall not result in a downgrade, qualification or withdrawal of the applicable rating or ratings ascribed by such Rating Agency to any of the Certificates then outstanding. In the event that no Certificates are outstanding or the Senior Loan is not part of a Securitization, any action that would otherwise require a Rating Agency Confirmation shall require the consent of the Senior Lender, which consent shall not be unreasonably withheld, conditioned or delayed.

“ Redirection Notice ” has the meaning provided in Section 15 hereof.

 

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“ Required Special Servicer Rating ” means (i) a rating of “CSS1” in the case of Fitch, (ii) on S&P’s Select Servicer List as a U.S. Commercial Mortgage Special Servicer in the case of S&P and (iii) in the case of Moody’s, such special servicer is acting as special servicer in a commercial mortgage loan securitization that was rated by Moody’s within the twelve (12) month period prior to the date of determination, and Moody’s has not downgraded or withdrawn the then-current rating on any class of commercial mortgage securities or placed any class of commercial mortgage securities on watch citing the continuation of such special servicer as special servicer of such commercial mortgage securities.

“ S&P ” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc.

“ Securitization ” means the sale or securitization of the Senior Loan (or any portion thereof) in one or more transactions through the issuance of securities, which securities may be assigned ratings by the Rating Agencies.

“ Securitization Vehicle ” has the meaning provided in the definition of the term “Qualified Transferee”.

“ Senior Lender ” has the meaning provided in the first paragraph of this Agreement.

“ Senior Loan ” has the meaning provided in the Recitals hereto.

“ Senior Loan Agreement ” has the meaning provided in the Recitals hereto.

“ Senior Loan Cash Management Agreement ” means any cash management agreement or agreements executed in connection with, or cash management provisions of, the Senior Loan Documents.

“ Senior Loan Default Notice ” has the meaning provided in Section 11(a) hereof.

“ Senior Loan Documents ” means the Senior Loan Agreement, the Senior Note and the Senior Mortgages, together with the Loan Documents, as defined in the Senior Loan Agreement, as any of the foregoing may be modified, amended, extended, supplemented, restated or replaced from time to time, subject to the limitations and agreements contained in this Agreement.

“ Senior Loan Liabilities ” means, collectively, all of the indebtedness, liabilities and obligations of Borrower evidenced by the Senior Loan Documents and all amounts due or to become due pursuant to the Senior Loan Documents, including interest thereon and any other amounts payable in respect thereof or in connection therewith, including, without limitation, any late charges, default interest, prepayment fees or premiums, exit fees, advances and post-petition interest.

“ Senior Loan Modification ” has the meaning provided in Section 7(a) hereof.

“ Senior Mezzanine Borrower ” has the meaning provided in the Recitals hereto.

 

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“ Senior Mezzanine Lender ” has the meaning provided in the first paragraph of this Agreement.

“ Senior Mezzanine Loan ” has the meaning provided in the Recitals hereto.

“ Senior Mezzanine Loan Agreement ” has the meaning provided in the Recitals hereto.

“ Senior Mezzanine Loan Documents ” means the Senior Mezzanine Loan Agreement, the Senior Mezzanine Note and the Senior Pledge, together with the Loan Documents, as defined in the Senior Mezzanine Loan Agreement, as any of the foregoing may be modified, amended, extended, supplemented, restated or replaced from time to time, subject to the limitations and agreements contained in this Agreement.

“ Senior Mezzanine Loan Liabilities ” shall mean, collectively, all of the indebtedness, liabilities and obligations of Senior Mezzanine Borrower evidenced by the Senior Mezzanine Loan Documents and all amounts due or to become due pursuant to the Senior Mezzanine Loan Documents, including, without limitation, interest thereon and any other amounts payable in respect thereof or in connection therewith, any late charges, default interest, prepayment fees or premiums, exit fees, advances and post-petition interest.

“ Senior Mezzanine Loan Purchase Option Event ” has the meaning ascribed to such term in Section 13 .

“ Senior Mezzanine Loan Purchase Price ” has the meaning ascribed to such term in Section 13 .

“ Senior Mezzanine Note ” has the meaning provided in the Recitals hereto.

“ Senior Mezzanine Purchase Notice ” has the meaning ascribed to such term in Section 13 .

“ Senior Mortgages ” has the meaning provided in the Recitals hereto.

“ Senior Note ” has the meaning provided in the Recitals hereto.

“ Senior Pledge Agreement ” has the meaning provided in the Recitals hereto.

“ Separate Collateral ” means, with respect to each Mezzanine Lender, (i) Equity Collateral pledged under its respective Mezzanine Loan Documents, (ii) the accounts (and monies therein from time to time) pledged under its respective Mezzanine Loan Documents, and (iii) any other collateral or benefits (including any guarantees) given as security for or in connection with the applicable Mezzanine Loan pursuant to the applicable Mezzanine Loan Documents (including, without limitation, all amounts payable on behalf of the applicable Mezzanine Borrowers under the applicable Interest Rate Cap Agreement and revenues from properties that are not subject to the lien of the Senior Mortgages), in each case not directly constituting security for the Senior Loan or any other Mezzanine Loan.

 

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“ SPE Constituent Entity ” means any holder of direct or indirect equity interests in Borrower that is required to be a single-purpose entity pursuant to the Senior Loan Documents and/or any of the Mezzanine Loan Documents.

“ Third Party Agreement ” has the meaning provided in Section 5(a) hereof.

“ Third Party Obligor ” has the meaning provided in Section 5(a) hereof.

“ Transfer ” means any assignment, pledge, conveyance, sale, transfer, mortgage, encumbrance, grant of a security interest, issuance of a participation interest, or other disposition, either directly or indirectly, by operation of law or otherwise.

(b)        For all purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires:

    (i)                all capitalized terms defined in the recitals to this Agreement shall have the meanings ascribed thereto whenever used in this Agreement and the terms defined in this Agreement have the meanings assigned to them in this Agreement, and the use of any gender herein shall be deemed to include the other genders;

    (ii)               terms not otherwise defined herein shall have the meaning assigned to them in the Senior Loan Agreement;

    (iii)              all references in this Agreement to designated Sections, Subsections, Paragraphs, Articles, Exhibits, Schedules and other subdivisions or addenda without reference to a document are to the designated sections, subsections, paragraphs and articles and all other subdivisions of and exhibits, schedules and all other addenda to this Agreement, unless otherwise specified;

    (iv)             a reference to a Subsection without further reference to a Section is a reference to such Subsection as contained in the same Section in which the reference appears, and this rule shall apply to Paragraphs and other subdivisions;

    (v)              the terms “includes” or “including” shall mean without limitation by reason of enumeration;

    (vi)             the words “herein”, “hereof”, “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular provision;

    (vii)            the words “to Mezzanine Lender’s knowledge” or “to the knowledge of a Mezzanine Lender” (or words of similar meaning) shall mean to the actual knowledge of officers of a Mezzanine Lender with direct oversight responsibility for its respective Mezzanine Loan without independent investigation or inquiry and without any imputation whatsoever; and

 

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    (viii)           the words “to Senior Lender’s knowledge” or “to the knowledge of Senior Lender” (or words of similar meaning) shall mean to the actual knowledge of officers of Senior Lender with direct oversight responsibility for the Senior Loan without independent investigation or inquiry and without any imputation whatsoever.

Section 2.         Characterization of the Loans; Approval of Loans and Loan Documents .

(a)         Senior Loan .  Each Mezzanine Lender hereby acknowledges that (i) Borrower shall not have any liability or obligation whatsoever with respect to the Mezzanine Notes or otherwise in connection with the payment of the Mezzanine Loans, (ii) the Mezzanine Loans do not constitute or impose, and shall not be deemed or construed as constituting or imposing now or hereafter, a lien or encumbrance upon, or security interest in any portion of the Premises or any other collateral securing the Senior Loan or otherwise grant to either Mezzanine Lender the status as a creditor of Borrower, (iii) it shall not, as holder of a Mezzanine Loan, assert, claim or raise as a defense, any such lien, encumbrance or security interest in the Premises or any status as a creditor of Borrower in any action or proceeding, including any insolvency or bankruptcy proceeding commenced by or against Borrower; (iv) it shall not, as holder of a Mezzanine Loan, assert, pursue, confirm or acquiesce in any way to any recharacterization of the Mezzanine Loans as having conferred upon either Mezzanine Lender any lien or encumbrance upon, or security interest in, the Premises or any portion thereof or as having conferred upon Mezzanine Lenders the status of a creditor of Borrower; and (v) nothing in this Agreement is intended to create and this Agreement does not create any security interest given by the Senior Lender in favor of Mezzanine Lenders.

(b)         Senior Mezzanine Loan .  Senior Mezzanine Lender hereby acknowledges that (i) no Mezzanine Borrower other than Senior Mezzanine Borrower shall have any liability or obligation whatsoever with respect to the Senior Mezzanine Note or otherwise in connection with the payment of the Senior Mezzanine Loan; (ii) the Senior Mezzanine Loan does not constitute or impose, and shall not be deemed or construed as constituting or imposing now or hereafter, a lien or encumbrance upon, or security interest in any portion of the Separate Collateral securing any Mezzanine Loan other than the Senior Mezzanine Loan; (iii) the Senior Mezzanine Loan does not grant to Senior Mezzanine Lender the status as a creditor of any Mezzanine Borrower other than Senior Mezzanine Borrower; (iv) Senior Mezzanine Lender shall not, as holder of a Mezzanine Loan, assert, claim or raise as a defense, any such lien, encumbrance or security interest in the Separate Collateral securing any Mezzanine Loan other than the Senior Mezzanine Loan; (v) Senior Mezzanine Lender shall not, as holder of a Mezzanine Loan, assert, claim or raise as a defense any status as a creditor of any Mezzanine Borrower other than Senior Mezzanine Borrower in any action or proceeding, including any insolvency or bankruptcy proceeding commenced by or against any Senior Mezzanine Borrower; and (vi) Senior Mezzanine Lender shall not assert, pursue, confirm or acquiesce in any way to any recharacterization of the Senior Mezzanine Loan as having conferred upon Senior Mezzanine Lender any lien or encumbrance upon, or security interest in, the Separate Collateral securing any Mezzanine Loan other than the Senior Mezzanine Loan or as having conferred upon Senior Mezzanine Lender the status of a creditor of any Mezzanine Borrower other than Senior Mezzanine Borrower.

 

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(c)         Junior Mezzanine Loan .  Junior Mezzanine Lender hereby acknowledges that (i) no Mezzanine Borrower other than Junior Mezzanine Borrower shall have any liability or obligation whatsoever with respect to the Junior Mezzanine Note or otherwise in connection with the payment of the Junior Mezzanine Loan; (ii) the Junior Mezzanine Loan does not constitute or impose, and shall not be deemed or construed as constituting or imposing now or hereafter, a lien or encumbrance upon, or security interest in any portion of the Separate Collateral securing any Mezzanine Loan other than the Junior Mezzanine Loan; (iii) the Junior Mezzanine Loan does not grant to Junior Mezzanine Lender the status as a creditor of any Mezzanine Borrower other than Junior Mezzanine Borrower; (iv) Junior Mezzanine Lender shall not, as holder of a Mezzanine Loan, assert, claim or raise as a defense, any such lien, encumbrance or security interest in the Separate Collateral securing the any Mezzanine Loan other than the Junior Mezzanine Loan; (v) Junior Mezzanine Lender shall not, as holder of a Mezzanine Loan, assert, claim or raise as a defense any status as a creditor of any Mezzanine Borrower other than Junior Mezzanine Borrower in any action or proceeding, including any insolvency or bankruptcy proceeding commenced by or against Junior Mezzanine Borrower; and (vi) Junior Mezzanine Lender shall not assert, pursue, confirm or acquiesce in any way to any recharacterization of the Junior Mezzanine Loan as having conferred upon Junior Mezzanine Lender any lien or encumbrance upon, or security interest in, the Separate Collateral securing any Mezzanine Loan other than the Junior Mezzanine Loan or as having conferred upon Junior Mezzanine Lender the status of a creditor of any Mezzanine Borrower other than Junior Mezzanine Borrower.

(d)         Junior Loans .  Senior Lender hereby acknowledges that (i) neither Senior Mezzanine Borrower nor Junior Mezzanine Borrower shall have any liability or obligation whatsoever with respect to the Senior Note or otherwise in connection with the payment of the Senior Loan, (ii) the Senior Loan does not constitute or impose, and shall not be deemed or construed as constituting or imposing now or hereafter, a lien or encumbrance upon, or security interest in any portion of the Equity Collateral or any other collateral securing the Mezzanine Loans or otherwise grant to Senior Lender the status as a creditor of either Senior Mezzanine Borrower or Junior Mezzanine Borrower, (iii) it shall not, as holder of a Senior Loan, assert, claim or raise as a defense, any such lien, encumbrance or security interest in the Equity Collateral or any status as a creditor of Senior Mezzanine Borrower or Junior Mezzanine Borrower in any action or proceeding, including any insolvency or bankruptcy proceeding commenced by or against Senior Mezzanine Borrower or Junior Mezzanine Borrower; (iv) it shall not, as holder of the Senior Loan, assert, pursue, confirm or acquiesce in any way to any recharacterization of the Senior Loan as having conferred upon Senior Lender any lien or encumbrance upon, or security interest in, the Equity Collateral or any portion thereof or as having conferred upon Senior Lender the status of a creditor of Senior Mezzanine Borrower or Junior Mezzanine Borrower; and (v) nothing in this Agreement is intended to create and this Agreement does not create any security interest given by the Mezzanine Lenders in favor of Senior Lender.

(e)         Mezzanine Lenders .  Each Mezzanine Lender hereby acknowledges that (i) it has received and reviewed and, subject to the terms and conditions of this Agreement, hereby consents to and approves of the making of the Senior Loan and each of the Mezzanine Loans, subject to the terms and provisions of this Agreement, all of the terms and provisions of the Senior Loan Documents and each of the Mezzanine Loan Documents, (ii) the execution, delivery and performance of the Senior Loan Documents and each of the Mezzanine Loan

 

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Documents will not constitute a default or an event which, with the giving of notice or the lapse of time, or both, would constitute a default under the Mezzanine Loan Documents relating to the Mezzanine Loan held by such Mezzanine Lender, (iii) neither Senior Lender nor the other Mezzanine Lender are under any obligation or duty to, nor has Senior Lender represented or the other Mezzanine Lender represented that either will, see to (A) the application of the proceeds of the Senior Loan by Borrower or any other Person to whom Senior Lender disburses such proceeds and (B) the application of the proceeds of either Mezzanine Loan other than, with respect to an individual Mezzanine Lender, the Mezzanine Loan held by such Mezzanine Lender, (iv) (A) any application or use of the proceeds of the Senior Loan for purposes other than those provided in the Senior Loan Documents shall not affect, impair or defeat the terms and provisions of this Agreement or the Senior Loan Documents and (B) any application or use of the proceeds of either Mezzanine Loan for purposes other than those provided in the related Mezzanine Loan Documents shall not affect, impair or defeat the terms and provisions of this Agreement or the related Mezzanine Loan Documents

(f)         Senior Lender .  Senior Lender hereby acknowledges that (i) it has received and reviewed, and, subject to the terms and conditions of this Agreement, hereby consents to and approves of the making of the Mezzanine Loans and, subject to the terms and provisions of this Agreement, all of the terms and provisions of the Mezzanine Loan Documents, (ii) the execution, delivery and performance of the Mezzanine Loan Documents will not constitute a default or an event which, with the giving of notice or the lapse of time, or both, would constitute a default under the Senior Loan Documents, (iii) neither Mezzanine Lender is under any obligation or duty to, nor has either Mezzanine Lender represented that it will, see to the application of the proceeds of the related Mezzanine Loan by the related Mezzanine Borrower or any other Person to whom such Mezzanine Lender disburses such proceeds and (iv) any application or use of the proceeds of the Mezzanine Loans for purposes other than those provided in the Mezzanine Loan Documents shall not affect, impair or defeat the terms and provisions of this Agreement or the Mezzanine Loan Documents. Senior Lender hereby consents to the Mezzanine Lenders obtaining title to the applicable Separate Collateral (provided, however, that with respect to the applicable portion of the Separate Collateral constituting Equity Collateral, each Mezzanine Lender acts in accordance with the provisions of Section 5 hereof) pledged to the related Mezzanine Lender, subject to the terms and conditions of Section 5 hereof. Senior Lender hereby acknowledges and agrees that any conditions precedent to Senior Lender’s consent to mezzanine financing as set forth in the Senior Loan Documents or any other agreements with the Borrower, as they apply to the Mezzanine Loan Documents or the making of the Mezzanine Loan, have been either satisfied or waived.

(g)        Notwithstanding any provisions herein or in the Senior Loan Documents to the contrary, Senior Lender agrees that no default or Event of Default under the Mezzanine Loan Documents shall, in and of itself, constitute or give rise to a default or Event of Default under the Senior Loan Documents, entitle Senior Lender to accelerate payments under the Senior Loan Documents or entitle Senior Lender to modify any provisions of the Senior Loan Documents; provided , however , it is understood that the circumstances giving rise to a default or Event of Default under the Mezzanine Documents may give rise to a default or Event of Default under the Senior Loan Documents in accordance with the terms thereof.

 

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Section 3.         Representations and Warranties .

(a)        Each Mezzanine Lender hereby represents and warrants to the Senior Lender and the other Mezzanine Lender, for itself only as follows:

    (i)                There are no conditions precedent to the effectiveness of this Agreement against such Mezzanine Lender that have not been satisfied or waived.

    (ii)               Such Mezzanine Lender has, independently and without reliance upon Senior Lender or the other Mezzanine Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement.

    (iii)              Such Mezzanine Lender is duly organized and is validly existing under the laws of the jurisdiction under which it was organized with full power to execute, deliver, and perform this Agreement and consummate the transactions contemplated hereby.

    (iv)             All actions necessary to authorize the execution, delivery, and performance of this Agreement on behalf of such Mezzanine Lender have been duly taken, and all such actions continue in full force and effect as of the date hereof.

    (v)              Such Mezzanine Lender has duly executed and delivered this Agreement and this Agreement constitutes the legal, valid, and binding agreement of such Mezzanine Lender enforceable against such Mezzanine Lender in accordance with its terms subject to (x) applicable bankruptcy, reorganization, insolvency and moratorium laws, and (y) general principles of equity which may apply regardless of whether a proceeding is brought in law or in equity.

    (vi)             To such Mezzanine Lender’s knowledge, no consent of any other Person and no consent, license, approval, or authorization of, or exemption by, or registration or declaration or filing with, any governmental authority, bureau or agency is required in connection with the execution, delivery or performance by such Mezzanine Lender of this Agreement or consummation by such Mezzanine Lender of the transactions contemplated by this Agreement.

    (vii)            None of the execution, delivery and performance of this Agreement nor the consummation of the transactions contemplated by this Agreement will (v) violate or conflict with any provision of the organizational or governing documents of such Mezzanine Lender, (w) to such Mezzanine Lender’s knowledge, violate, conflict with, or result in the breach or termination of, or otherwise give any other Person the right to terminate, or constitute (or with the giving of notice or lapse of time, or both, would constitute) a default under the terms of any contract, mortgage, lease, bond, indenture, agreement, or other instrument to which such Mezzanine Lender is a party or to which any of its properties are subject, (x) to such Mezzanine Lender’s knowledge, result in the

 

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creation of any lien, charge, encumbrance, mortgage, lease, claim, security interest, or other right or interest upon the properties or assets of such Mezzanine Lender pursuant to the terms of any such contract, mortgage, lease, bond, indenture, agreement, franchise, or other instrument (provided, however, that such Mezzanine Lender and any participant in the related Mezzanine Loan shall have the right to grant a lien, charge, encumbrance, claim or security interest in the related Mezzanine Loan or any portion thereof to a Loan Pledgee as contemplated by the provisions of Section 15 hereof), (y) violate any judgment, order, injunction, decree, or award of any court, arbitrator, administrative agency or governmental or regulatory body of which such Mezzanine Lender has knowledge against, or binding upon, such Mezzanine Lender or upon any of the securities, properties, assets, or business of such Mezzanine Lender or (z) to such Mezzanine Lender’s knowledge, constitute a violation by such Mezzanine Lender of any statute, law or regulation that is applicable to such Mezzanine Lender.

(b)         Senior Mezzanine Lender .  Senior Mezzanine Lender hereby represents and warrants to the Senior Lender and the Junior Mezzanine Lender as follows:

    (i)                 Exhibit B hereto is a true, correct and complete list of all of the Senior Mezzanine Loan Documents (including all amendments and modifications thereof), as of the date hereof.

    (ii)               To Senior Mezzanine Lender’s knowledge, there currently exists no default or event which, with the giving of notice or the lapse of time, or both, would constitute a default under the Senior Mezzanine Loan Documents.

    (iii)              Senior Mezzanine Lender is the legal and beneficial owner of the entire Senior Mezzanine Loan free and clear of any lien, security interest, option or other charge or encumbrance, other than any lien or security interest granted to any Loan Pledgee (as hereinafter defined) as contemplated by the provisions of Section 15 hereof.

    (iv)             The Senior Mezzanine Loan is not cross-defaulted with any loan other than the Encumbered Property Loans (as defined in the Senior Mezzanine Loan Agreement). The Premises do not secure any loan from Senior Mezzanine Lender to Senior Mezzanine Borrower or any other Affiliate of Borrower.

(c)         Junior Mezzanine Lender .  Junior Mezzanine Lender hereby represents and warrants to the Senior Lender and the Senior Mezzanine Lender as follows:

    (i)                 Exhibit C hereto is a true, correct and complete list of all of the Junior Mezzanine Loan Documents (including all amendments and modifications thereof), as of the date hereof.

    (ii)               To Junior Mezzanine Lender’s knowledge, there currently exists no default or event which, with the giving of notice or the lapse of time, or both, would constitute a default under the Junior Mezzanine Loan Documents.

 

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    (iii)              Junior Mezzanine Lender is the legal and beneficial owner of the entire Junior Mezzanine Loan free and clear of any lien, security interest, option or other charge or encumbrance, other than any lien or security interest granted to any Loan Pledgee (as hereinafter defined) as contemplated by the provisions of Section 15 hereof.

    (iv)             The Junior Mezzanine Loan is not cross-defaulted with any loan other than the Senior Mezzanine Loan. The Premises do not secure any loan from Junior Mezzanine Lender to Junior Mezzanine Borrower or any other Affiliate of Borrower.

(d)         Senior Lender .  Senior Lender hereby represents and warrants as follows:

    (i)                 Exhibit D hereto is a true, correct and complete list of all of the Senior Loan Documents (including all amendments and modifications thereof), as of the date hereof.

    (ii)               To Senior Lender’s knowledge, there currently exists no default or event which, with the giving of notice or the lapse of time, or both, would constitute a default under any of the Senior Loan Documents.

    (iii)              Senior Lender is the legal and beneficial owner of the Senior Loan free and clear of any lien, security interest, option or other charge or encumbrance.

    (iv)             There are no conditions precedent to the effectiveness of this Agreement against Senior Lender that have not been satisfied or waived.

    (v)              Senior Lender has, independently and without reliance upon either Mezzanine Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement.

    (vi)             Senior Lender is duly organized and is validly existing under the laws of the jurisdiction under which it was organized with full power to execute, deliver, and perform this Agreement and consummate the transactions contemplated hereby.

    (vii)            All actions necessary to authorize the execution, delivery, and performance of this Agreement on behalf of Senior Lender have been duly taken, and all such actions continue in full force and effect as of the date hereof.

    (viii)           Senior Lender has duly executed and delivered this Agreement and this Agreement constitutes the legal, valid, and binding agreement of Senior Lender enforceable against Senior Lender in accordance with its terms subject to (x) applicable bankruptcy, reorganization, insolvency and moratorium laws and (y) general principles of equity which may apply regardless of whether a proceeding is brought in law or in equity.

 

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    (ix)             To Senior Lender’s knowledge, no consent of any other Person and no consent, license, approval, or authorization of, or exemption by, or registration or declaration or filing with, any governmental authority, bureau or agency is required in connection with the execution, delivery or performance by Senior Lender of this Agreement or consummation by Senior Lender of the transactions contemplated by this Agreement.

    (x)              None of the execution, delivery and performance of this Agreement nor the consummation of the transactions contemplated by this Agreement will (v) violate or conflict with any provision of the organizational or governing documents of Senior Lender, (w) to Senior Lender’s knowledge, violate, conflict with, or result in the breach or termination of, or otherwise give any other Person the right to terminate, or constitute (or with the giving of notice or lapse of time, or both, would constitute) a default under the terms of any contract, mortgage, lease, bond, indenture, agreement, or other instrument to which Senior Lender is a party or to which any of its properties are subject, (x) to Senior Lender’s knowledge, result in the creation of any lien, charge, encumbrance, mortgage, lease, claim, security interest, or other right or interest upon the properties or assets of Senior Lender pursuant to the terms of any such contract, mortgage, lease, bond, indenture, agreement, franchise or other instrument, (y) violate any judgment, order, injunction, decree or award of any court, arbitrator, administrative agency or governmental or regulatory body of which Senior Lender has knowledge against, or binding upon, Senior Lender or upon any of the securities, properties, assets, or business of Senior Lender or (z) to Senior Lender’s knowledge, constitute a violation by Senior Lender of any statute, law or regulation that is applicable to Senior Lender.

    (xi)             The Senior Loan is not cross-defaulted with any other loan. The Premises do not secure any other loan from Senior Lender to Borrower, Senior Mezzanine Borrower, Junior Mezzanine Borrower or any other Affiliate of Borrower.

    (xii)            The Senior Loan is not secured by any direct or indirect equity interest in Borrower.

Section 4.         Transfer of Mezzanine Loan or Senior Loan .  Except as otherwise permitted in Section 15 hereof:

(a)        No Mezzanine Lender shall Transfer more than 49% of its beneficial interest in its respective Mezzanine Loan unless, with respect to the excess over 49%, either (i) a Rating Agency Confirmation has been given with respect to such Transfer, in which case the related transferee shall thereafter be deemed to be a “Qualified Transferee” for all purposes of this Agreement, or (ii) such Transfer is to a Qualified Transferee. Any such transferee (other than a participant or Loan Pledgee) shall be deemed to have assumed the obligations of the applicable Mezzanine Lender hereunder and to have agreed to be bound by the terms and provisions hereof. Such proposed transferee (other than a participant or Loan Pledgee) shall also be deemed to have remade each of the representations and warranties contained herein for the

 

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benefit of the Senior Lender and the other Mezzanine Lender. For the avoidance of doubt, Transfers of 49% or less of a Mezzanine Lender’s beneficial interest in its respective Mezzanine Loan shall not require Rating Agency Confirmation, nor does such Transfer need to be made to a Qualified Transferee.

(b)        Not more than five (5) days after a Transfer of more than 49% of its beneficial interest to a Qualified Transferee, the applicable transferring Mezzanine Lender shall provide to Senior Lender and the other Mezzanine Lender and, if any Certificates are outstanding, to the Rating Agencies, a certification that such transfer has been made in accordance with this Section 4 , such certification to include the name and contact information of the Qualified Transferee. The provisions of this Section 4(b) are not intended to apply to a Pledge granted under Section 15 of this Agreement.

(c)        If more than one Person shall hold a direct interest in a Mezzanine Loan, the holder(s) of more than 50% of the principal amount of such Mezzanine Loan shall designate by written notice to Senior Lender and the other Mezzanine Lender one of such Persons (the “ Directing Mezzanine Lender ”) to act on behalf of all such Persons holding an interest in such Mezzanine Loan. The Directing Mezzanine Lender shall have the sole right to receive any notices which are required to be given or which may be given to the related Mezzanine Lender pursuant to this Agreement and to exercise the rights and power given to such Mezzanine Lender hereunder, including any approval rights of such Mezzanine Lender; provided, that until the Directing Mezzanine Lender has been so designated, the last Person known to the Senior Lender and the other Mezzanine Lender to hold more than a 50% direct interest in such Mezzanine Loan shall be deemed to be the Directing Mezzanine Lender. Once the Directing Mezzanine Lender has been designated hereunder, Senior Lender and the other Mezzanine Lender shall be entitled to rely on such designation until it has received written notice from the holder(s) of more than 50% of the principal amount of such Mezzanine Loan of the designation of a different Person to act as the Directing Mezzanine Lender. As of the date hereof, the Directing Mezzanine Lender for (i) the Senior Mezzanine Loan is KBS Debt Holdings, LLC and (ii) the Junior Mezzanine Loan is Goldman Sachs Mortgage Company. Junior Mezzanine Lender agrees that no Affiliated Person (defined below) shall become the Directing Mezzanine Lender with respect to the Junior Mezzanine Loan, unless it shall own 100% of the Junior Mezzanine Loan.

(d)        Each Mezzanine Lender acknowledges that any Rating Agency Confirmation may be granted or denied by the Rating Agencies in their sole and absolute discretion and that such Rating Agencies may charge customary fees in connection with any such action.

(e)        Subject to Section 22 , Senior Lender may, from time to time, in its sole discretion Transfer all or any portion of the Senior Loan or any interest therein, and notwithstanding any such Transfer or subsequent Transfer, the Senior Loan and the Senior Loan Documents shall be and remain a senior obligation in the respects set forth in this Agreement to the Mezzanine Loans and the Mezzanine Loan Documents in accordance with the terms and provisions of this Agreement. Senior Lender will provide each Mezzanine Lender prompt notice of any Transfer of more than 49% of its beneficial interest in the Senior Loan (including with respect to a Securitization, but excluding any Transfer that is a Pledge). If more than one Person shall hold a direct interest in the Senior Loan, the holder(s) of more than 50% of the principal

 

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amount of the Senior Loan shall designate by written notice to each Mezzanine Lender one of such Persons or a servicer on their behalf (the “ Directing Senior Lender ”) to act on behalf of all such Persons holding an interest in the Senior Loan. The Directing Senior Lender shall have the sole right to receive any notices which are required to be given or which may be given to Senior Lender pursuant to this Agreement and to exercise the rights and power given to Senior Lender hereunder, including any approval rights of Senior Lender; provided, that until the Directing Senior Lender has been so designated, the last Person known to each Mezzanine Lender to hold more than a 50% direct interest in the Senior Loan shall be deemed to be the Directing Senior Lender. Once the Directing Senior Lender has been designated hereunder, each Mezzanine Lender shall be entitled to rely on such designation until it has received written notice from the holder(s) of more than 50% of the principal amount of the Senior Loan of the designation of a different Person to act as the Directing Senior Lender. As of the date hereof, the Directing Senior Lender is Goldman Sachs Mortgage Company. Senior Lender agrees that no Affiliated Person (defined below) shall become the Directing Senior Lender, unless it shall own 100% of the Senior Loan.

Section 5.         Foreclosure of Separate Collateral .

(a)        No Mezzanine Lender shall complete a foreclosure or other realization upon the Equity Collateral (including, without limitation, obtaining title to the Equity Collateral or selling or otherwise transferring the Equity Collateral) without (i) Rating Agency Confirmation and (ii) in the case of the Junior Mezzanine Lender, the approval of the Senior Mezzanine Lender (not to be unreasonably withheld, delayed or conditioned), in each case, unless (i) the transferee of title to the Equity Collateral is a Qualified Transferee, (ii) the Premises will be managed by a Qualified Manager promptly after the Transfer of title to the Equity Collateral, and (iii) if not in place prior to the transfer of title to the Equity Collateral, hard cash management and adequate reserves for taxes, insurance, ground rents (if applicable), debt service, capital repair and improvement expenses, tenant improvement expenses and leasing commissions and operating expenses will be implemented under the Senior Loan promptly after the transfer of title to the Equity Collateral to the extent required by the Senior Loan Documents (or, in the case of a transfer of title to the Junior Mezzanine Loan Equity Collateral, the Senior Mezzanine Loan Documents); provided, however, the requirement set forth in clause (iii) shall be waived if the implementation of such hard cash management and reserves would cause a “significant modification” of the Senior Loan, as such term is defined in Treasury Regulations Section 1.860G-2(b). Additionally, if a non-consolidation opinion was delivered in connection with the closing of the Senior Loan, the transferee of the Equity Collateral shall deliver a new non-consolidation opinion relating to the transferee acceptable to the Rating Agencies within ten (10) Business Days of the transfer of title to the Equity Collateral. The applicable Mezzanine Lender shall provide to Senior Lender and the Rating Agencies notice of the Transfer (and, in the case of a Transfer of the Junior Mezzanine Loan, Junior Mezzanine Lender shall provide such notice to Senior Mezzanine Lender), and certify that all conditions set forth in this Section 5(a) have been satisfied, within five (5) Business Days after the consummation of any transfer of the Equity Collateral pursuant to this Section 5(a) . Senior Lender or any Mezzanine Lender that has approval rights with respect to such transfer pursuant to this Section 5(a) may request reasonable evidence that the foregoing requirements have been satisfied. In the event that such Transfer results in the removal of any guarantor, indemnitor, pledgor, or other obligor under the Senior Loan Documents, or in the case of a Transfer by the Junior Mezzanine Lender, the Senior

 

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Mezzanine Loan Documents (each, a “ Third Party Obligor ”), such transferee or an affiliate thereof reasonably satisfactory to the Senior Lender and/or Senior Mezzanine Lender, as applicable, shall: (A) execute and deliver to Senior Lender and/or Senior Mezzanine Lender, as applicable, a guaranty, indemnity, pledge agreement or other agreement which provides for the obligations of such obligor (each, a “ Third Party Agreement ”), in each case, in a form substantially similar to the Third Party Agreement that it is replacing, pursuant to which the Third Party Obligor shall undertake the obligations set forth therein, and (B) if there are Certificates then outstanding, deliver (or cause to be delivered) to Senior Lender and/or Senior Mezzanine Lender, as applicable, and each Rating Agency, an opinion of counsel that the substitution of the original Third Party Obligor and the original Third Party Agreement with a substitute Third Party Obligor and a substitute Third Party Agreement, would not cause a “significant modification” of the Senior Loan, as such term is defined in Treasury Regulations Section 1.860G-2(b).

(b)        Nothing contained herein shall limit or restrict the right of the Mezzanine Lenders to exercise their respective rights and remedies, in law or in equity, or otherwise, in order to realize on any Separate Collateral that is not Equity Collateral.

(c)        In the event a Mezzanine Lender or any purchaser at a UCC sale obtains title to the Equity Collateral, Senior Lender and Senior Mezzanine Lender hereby acknowledge and agree that any transfer or assumption fee in the Senior Loan Documents and the Senior Mezzanine Loan Documents, as applicable, shall be waived as a condition to such transfer and any such transfer shall not constitute a breach or default under the Senior Loan Documents or the Senior Mezzanine Loan Documents, as applicable, provided the conditions in Section 5(a) are met, to the extent applicable. Senior Lender and Senior Mezzanine Lender also acknowledge and agree that they will not impose any unreasonable fees or delays in connection with such Transfer.

(d)        To the extent that any Qualified Transferee acquires the Equity Collateral pledged to a Mezzanine Lender pursuant to the related Mezzanine Loan Agreement in accordance with the provisions and conditions of this Agreement, such Qualified Transferee shall acquire the same subject to (i) the Senior Loan and the terms, conditions and provisions of the Senior Loan Documents and (ii) in the case of an acquisition of the Equity Collateral pledged under the Junior Mezzanine Loan, the Senior Mezzanine Loan and the terms, conditions and provisions of the Senior Mezzanine Loan Documents, in each case for the balance of the term thereof, which shall not be accelerated by Senior Lender and/or Senior Mezzanine Lender, as applicable, solely due to such acquisition and shall remain in full force and effect; provided, however, that (A) such Qualified Transferee shall cause, within ten (10) days after the Transfer, (1) Borrower and (2) in the case of a Transfer of the Junior Mezzanine Loan, the Senior Mezzanine Borrower, in each case, to reaffirm in writing, subject to such exculpatory provisions as may be set forth as of the date hereof in the Senior Loan Documents and/or the Senior Mezzanine Loan Documents, as applicable, all of the terms, conditions and provisions of the Senior Loan Documents and/or the Senior Mezzanine Loan Documents, as applicable, on Borrower’s or Senior Mezzanine Borrower’s, as applicable, part to be performed and (B) all defaults under (1) the Senior Loan and (2) the Senior Mezzanine Loan, in each case, which are susceptible of cure but remain uncured or unwaived as of the date of such acquisition, have been cured by such Qualified Transferee or in the case of defaults that are susceptible of cure but can

 

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only be cured by such Qualified Transferee following its acquisition of the Equity Collateral, the same shall be cured by such Qualified Transferee as soon as practicable following its acquisition; and with respect to defaults not susceptible of cure, the same shall be waived by Senior Lender and/or the Senior Mezzanine Lender, as applicable, provided, that such defaults which are not susceptible of being cured do not materially impair the value, use or operation of the Premises.

(e)        Nothing contained in this Section 5 is intended (i) to limit Loan Pledgee’s right under its financing documents with a Mezzanine Lender to foreclose against such Mezzanine Lender, provided that Loan Pledgee complies with the applicable provisions of Section 15 , or (ii) if any such Loan Pledgee has foreclosed under its financing documents as aforesaid, to limit such Loan Pledgee’s right to foreclose against the related Mezzanine Borrower’s interest in the Equity Collateral, provided that Loan Pledgee complies with the applicable provisions of this Section 5 .

Section 6.         Notice of Rating Confirmation .  Each Mezzanine Lender promptly shall notify Senior Lender and the other Mezzanine Lender of any intended action relating to its respective Mezzanine Loan which would require Rating Agency Confirmation pursuant to this Agreement and shall cooperate with the reasonable request of Senior Lender and/or the other Mezzanine Lender in obtaining such confirmation. Senior Lender promptly shall notify each Mezzanine Lender of any intended action relating to the Senior Loan which would require Rating Agency Confirmation pursuant to this Agreement and shall cooperate with the reasonable requests of each Mezzanine Lender in obtaining such confirmation. The party whose action requires Rating Agency Confirmation shall pay all fees and expenses of the Rating Agencies in connection with such action.

Section 7.         Modifications, Amendments, etc .

(a)         Modifications by Senior Lender .  Senior Lender shall have the right without the consent of either Mezzanine Lender in each instance to enter into any amendment, deferral, extension, modification, increase, renewal, replacement, consolidation, supplement or waiver (collectively, a “ Senior Loan Modification ”) of the Senior Loan or the Senior Loan Documents provided that no such Senior Loan Modification shall (i) increase the interest rate, principal amount of the Senior Loan (or the amortization of principal thereunder), except for increases in principal to cover work-out costs (including closing costs in connection therewith) and Protective Advances made by the Senior Lender and reallocations, in each case, to the extent permitted under the Senior Loan Documents, (ii) increase in any other material respect any monetary obligations of Borrower under the Senior Loan Documents, (iii) extend or shorten the scheduled maturity date of the Senior Loan (except that Senior Lender may permit Borrower to exercise any extension options in accordance with the terms and provisions of the Senior Loan Documents), (iv) convert or exchange the Senior Loan into or for any other indebtedness or subordinate any of the Senior Loan to any indebtedness of Borrower, (v) amend or modify the provisions of the Senior Loan Documents limiting transfers of direct or indirect interests in the Borrower or the Premises, (vi) modify, amend or terminate the terms and provisions of the Senior Loan Cash Management Agreement or any of the other Senior Loan Documents with respect to the manner, timing and method of the application of payments under the Senior Loan Documents or as the same may relate to the Mezzanine Loan Documents, (vii) cross default the Senior Loan with any other indebtedness, (viii) provide for a higher strike price with respect to

 

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any new or extended interest rate cap agreement entered into in connection with the extended term of the Senior Loan, unless expressly required under the Senior Loan Agreement, or waive any obligation of the rate cap provider under any rate cap agreement or waive any obligation of Borrower to deliver a replacement rate cap agreement, if required under the Senior Loan Documents, (ix) provide for any contingent interest, additional interest or so-called “kicker” measured on the basis of the cash flow or appreciation of the Premises, (or other similar equity participation), (x) modify, amend or waive any of the provisions of the Senior Loan Cash Management Agreement or the Senior Loan Agreement relating to cash management and reserves and the amounts to be deposited into such accounts, (xi) extend the period during which voluntary prepayments are prohibited or during which prepayments require the payment of a prepayment fee or premium or yield maintenance charge or increase the amount of any such prepayment fee, premium or yield maintenance charge, (xii) modify any default provision in any material respect or delete or shorten any notice, cure or grace periods available to Borrower (provided this shall in no way limit Senior Lender’s ability to waive any default or Event of Default), (xiii) impose any new financial covenants on Borrower (or if such covenants exist, impose more restrictive financial covenants on Borrower), (xiv) release any lien on or security interest in any material portion of collateral or property of the Borrower (except as expressly contemplated by the Senior Loan Documents), spread the lien of one or more of the Senior Mortgages to encumber additional real property unless expressly provided for in the Senior Loan Documents, or accept a grant of any lien on or security interest in any collateral or property of Borrower or any other Person not originally granted or contemplated to be granted under the Senior Loan Documents, (xv) modify the Senior Loan Documents with respect to the amounts, types or deductibles of insurance policies or ratings of any provider of insurance required pursuant to the terms of the Senior Loan Documents in a manner which would increase in any material respect the cost of such insurance (provided that the foregoing shall not preclude Senior Lender from requiring the compliance by Borrower with the requirements of the Senior Loan Documents), (xvi) modify any provision of the Senior Loan Documents with respect to the payment of proceeds of any casualty or condemnation under a power of eminent domain of the Premises or any portion thereof, or (xvii) grant to Senior Lender any direct or indirect equity interest in Borrower or either Mezzanine Borrower as collateral for the Senior Loan or in a manner that would violate the Senior Mezzanine Loan Agreement or the Junior Mezzanine Loan Agreement; provided , however , in no event shall Senior Lender be obligated to obtain either Mezzanine Lenders’ consent to a Senior Loan Modification in the case of a work-out or other surrender, compromise, release, renewal, or indulgence relating to the Senior Loan during the existence of a Continuing Senior Loan Event of Default, except that (1) under no circumstances shall the modifications described in clause (i)  (with respect to increase principal amount only), or clause (ix) , (xi)  or (xvii)  be made without the written consent of each Mezzanine Lender, and (2) if either Mezzanine Lender has cured or is in the process of curing (within the time period permitted for cure in Section 11 ) any Senior Loan Event of Default that such Mezzanine Lender is capable of curing and, with respect to non-monetary Senior Loan Events of Default that Mezzanine Lender is not capable of curing, (x) such non-monetary Senior Loan Events of Default will not materially adversely affect the value, use or operation of the Premises or the priority of Senior Lender’s lien thereon (as determined by Senior Lender in its reasonable discretion) or the cash flow from the Premises (as determined by Senior Lender in its reasonable discretion) and (y) such Mezzanine Lender is diligently and expeditiously pursuing its remedies to acquire the relevant portion of the Equity Collateral pursuant to the applicable Mezzanine

 

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Loan Documents, then Senior Lender shall not take any of the actions set forth in clauses (i) through (xvii) above without the written consent of such Mezzanine Lender, not to be unreasonably withheld, delayed or conditioned. In addition and notwithstanding the foregoing provisions of this Section 7(a) , the funding of any amounts by the Senior Lender under the Senior Loan Documents as a result of (A) the making of any Protective Advances or other advances by the Senior Lender, or (B) interest accruals or accretions and any compounding thereof (including default interest), shall not be deemed to contravene this Section 7(a) .

(b)         Modifications by Mezzanine Lenders .

(1)        Senior Mezzanine Lender shall have the right without the consent of Senior Lender or the Junior Mezzanine Lender, in each instance, to enter into any amendment, deferral, extension, modification, increase, renewal, replacement, consolidation, supplement or waiver (collectively, a “ Senior Mezzanine Loan Modification ”) of the Senior Mezzanine Loan or the Senior Mezzanine Loan Documents to which it is a party provided that no such Senior Mezzanine Loan Modification shall (i) increase the interest rate or principal amount of the Senior Mezzanine Loan, except for increases in principal to cover work-out costs (including closing costs in connection therewith) and Protective Advances made by Senior Mezzanine Lender or reallocations, in each case, to the extent permitted under the Senior Mezzanine Loan Documents, (ii) increase in any other material respect any monetary obligations of the Senior Mezzanine Borrower under the Senior Mezzanine Loan Documents, (iii) extend or shorten the scheduled maturity date of the Senior Mezzanine Loan (except that the Senior Mezzanine Lender may permit the applicable Mezzanine Borrower to exercise any extension options in accordance with the terms and provisions of the Senior Mezzanine Loan Documents), (iv) convert or exchange the Senior Mezzanine Loan into or for any other indebtedness or subordinate any of the Senior Mezzanine Loan to any indebtedness of the Senior Mezzanine Borrower, (v) amend or modify the provisions of the Senior Mezzanine Loan Documents limiting transfers of direct or indirect interests in the Senior Borrower or the Premises, (vi) modify, amend or terminate the terms and provisions of the “Cash Management Agreement” (as defined in the Senior Mezzanine Loan Agreement; the “ Senior Mezzanine Cash Management Agreements ”) or any of the other Senior Mezzanine Loan Documents with respect to the manner, timing and method of the application of payments under the Senior Mezzanine Loan (vii) cross default the Senior Mezzanine Loan with any other indebtedness except the Encumbered Property Loans, (viii) provide for a higher strike price with respect to any new or extended interest rate cap agreement entered into in connection with the extended term of the Senior Mezzanine Loan (other than as expressly provided for in the Senior Mezzanine Loan Documents in connection with the existing extension options), or waive any obligation of the rate cap provider under any rate cap agreement or waive any obligation of the Senior Mezzanine Borrower to deliver a replacement rate cap agreement, if required under the Senior Mezzanine Loan Documents, (ix) provide for any additional contingent interest, additional interest or so-called “kicker” measured on the basis of the cash flow or appreciation of the Premises or any other property directly or indirectly owned by Senior Mezzanine Borrower, (x) modify, amend or waive any of the provisions of either of the Senior Mezzanine Cash Management Agreements or the Senior Mezzanine Loan Agreement relating to cash management and reserves and the amounts to be deposited into such accounts, (xi) extend the period during which voluntary prepayments are prohibited or during which prepayments require the payment of a prepayment fee or premium or yield maintenance charge or increase the amount of any such prepayment fee, premium or yield maintenance charge, (xii)

 

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modify any default provision in any material respect or delete or shorten any notice, cure or grace periods available to Senior Mezzanine Borrower (provided this shall in no way limit any Senior Mezzanine Lender’s ability to waive any default or Event of Default), (xiii) impose any new financial covenants on Senior Mezzanine Borrower (or if such covenants exist, impose more restrictive financial covenants on Senior Mezzanine Borrower), (xiv) release any lien on or security interest in any material portion of collateral or property of the Senior Mezzanine Borrower (except as expressly contemplated by the Senior Mezzanine Loan Documents), or accept a grant of any lien on or security interest in any collateral or property of Senior Mezzanine Borrower or any other Person not originally granted or contemplated to be granted under the Senior Mezzanine Loan Documents, (xv) modify the Senior Mezzanine Loan Documents with respect to the amounts, types or deductibles of insurance policies or ratings of any provider of insurance required pursuant to the terms of the Senior Mezzanine Loan Documents in a manner which would increase in any material respect the cost of such insurance (provided that the foregoing shall not preclude Senior Mezzanine Lender from requiring the compliance by Senior Mezzanine Borrower with the requirements of the Senior Mezzanine Loan Documents), (xvi) modify any provision of the Senior Mezzanine Loan Documents with respect to the payment of proceeds of any casualty or condemnation under a power of eminent domain of the Premises or any portion thereof or (xvii) grant to Senior Mezzanine Lender any direct or indirect equity interest in Junior Mezzanine Borrower as collateral for the Senior Mezzanine Loan or in a manner that would violate the Junior Mezzanine Loan Agreement. Notwithstanding anything to the contrary contained herein (but subject to the remaining portion of this Section 7(b)(1) ), if an Event of Default exists under the Senior Mezzanine Loan Documents, the Senior Mezzanine Lender shall be permitted to modify or amend such Senior Mezzanine Loan Documents in connection with a work-out or other surrender, compromise, release, renewal or modification of the Senior Mezzanine Loan, except that (1) under no circumstances shall any modification described in clause (i) , with respect to increases in principal amounts only, clause (ii) , clause (iii)  (with respect to shortening the maturity date only), clause (iv)  or clause (ix)  be made without the written consent of the Senior Lender and the Junior Mezzanine Lender and (2) if Junior Mezzanine Lender has cured or is in the process of curing (within the time period permitted for cure in Section 11 ) any Senior Mezzanine Loan Event of Default that Junior Mezzanine Lender is capable of curing and, with respect to non-monetary Senior Mezzanine Loan Events of Default that Junior Mezzanine Lender is not capable of curing, (x) such non-monetary Senior Mezzanine Loan Events of Default will not materially adversely affect the value, use or operation of the Premises or the value of the Separate Collateral or the priority of Senior Mezzanine Lender’s lien thereon (as determined by Senior Mezzanine Lender in its reasonable discretion) or the cash flow from the Premises or the Separate Collateral (as determined by Senior Mezzanine Lender in its reasonable discretion) and (y) Junior Mezzanine Lender is diligently and expeditiously pursuing its remedies to acquire the relevant portion of the Equity Collateral pursuant to the Junior Mezzanine Loan Documents, then Senior Mezzanne Lender shall not take any of the actions set forth in clauses (i) through (xvii) above without the written consent of Junior Mezzanine Lender, not to be unreasonably withheld, delayed or conditioned. In addition and notwithstanding the foregoing provisions of this Section 7(b)(1) , the following shall not be deemed to contravene this Section 7(b)(1) : (1) any amounts funded by Senior Mezzanine Lender under the Senior Mezzanine Loan Documents as a result of (A) the making of any Protective Advances or other advances by Senior Mezzanine Lender or (B) interest accruals or accretions and any compounding thereof (including default interest), (2) any

 

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amendment, deferral, extension, modification, increase, renewal, replacement, consolidation, supplement or waiver given or made in connection with the guaranty of recourse obligations or other guaranty given in connection with the Senior Mezzanine Loan (provided the obligations of any guarantors that are also guarantors in respect of the Senior Loan and the Junior Mezzanine Loan shall not be materially increased without Senior Lender’s and Junior Mezzanine Lender’s consent), (3) any amendment or modification which has the effect of granting additional collateral (that does not constitute collateral for the Senior Loan or Junior Mezzanine Loan) to Senior Mezzanine Le