mezzanine intercreditoragreements and b note...

Presenting a live 90‐minute webinar with interactive Q&A

Mezzanine Intercreditor Agreements and B Note Agreementsand B Note AgreementsLessons from Real Estate Workouts and Bankruptcy Proceedings for Enforcing Co‐Lender Agreements

T d ’ f l f

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific

WEDNESDAY, DECEMBER 22, 2010

Today’s faculty features:

Robert (Robin) Childress Jones, Jr., Partner, Pillsbury Winthrop Shaw Pittman, Washington, D.C.

Patrick J. Potter, Partner, Pillsbury Winthrop Shaw Pittman, Washington, D.C.

Anthony (Tony) R. Page, Perimeter Investments, Dallas, Texas

The audio portion of the conference may be accessed via the telephone or by using your computer's speakers.Please refer to the instructions emailed to registrants for additional information. If you have any questions,please contact Customer Service at 1-800-926-7926 ext. 10.

Mezzanine Lending Webinar Agenda

December 22, 2010

Robin Jones -- Patrick Potter -- Tony Page 1. Basic Overview of Mezzanine Financing (slide show)

Structural aspects

Documentation and UCC insurance – “Eagle 9” policies 2. Basic Overview of “B Note” Structures

Structural and business differences from mezzanine loans

Documentation: co-lender/participation agreements

Function of loan servicer/special servicer

Control issues and control appraisals 3. Recourse Guaranty Issues

Purpose of the recourse guaranty

Structure: “Bad Boy” acts vs bankruptcy/wrongful transfers

Caps and limits

Net Worth and liquidity covenants

Individual guarantor issues 4. Mezzanine Intercreditor Issues

Nature of subordination – structural, payment, collateral, bankruptcy

Cure rights – “Intercreditor Defaults” vs loan agreement defaults

Senior Loan purchase rights

Restrictions on loan modifications

Transferee limitations – “Qualified Transferees”

Claims against common recourse guarantors

2

Cash waterfall effects – when can juniors be blocked?

Multi-tier structures and documentation cloning 5. Default Concerns

UCC foreclosure procedures vs mortgage loan foreclosure

Intercreditor Agreement protections

Replacement guaranty issues

Bankruptcy concerns 6. Business Issues

Pricing issues: mezz vs B notes and tier pricing

Operating company loans

Hotel and franchisor issues 7. Warehouse Financing

Structure and documentation

Repo characterization vs secured loan

Practical and liquidity issues – mark to market requirements and purchaser discretion

Loan pledgee status under the intercreditor agreement

8. Case Studies

GGP: independent directors can trigger a bankruptcy – so what?

Stuyvesant Town: mezz foreclosure post-mortgage loan acceleration – square peg in a round hole?

Bray & Gillespie: bankruptcy of underwater mezz with personal recourse guaranty – keeping the eye on the prize?

Four Seasons Nevis: protection of economic interest of mid-level B Note holder – in the “class warfare” sandwich?

Robert C. Jones, Jr. March 7, 2006 [copyrighted; all rights reserved]

General Introduction to Mezzanine Lending

Background: “Mezzanine financing” encompasses many potential ways of structuring multi-layered or tiered debt. The term “mezzanine” generally refers to the intermediate layer sandwiched between the senior lender (normally secured by the borrower’s assets) and the borrower equity; the mezzanine lender will usually take security in the equity of the borrower rather than taking a junior lien in the borrower’s assets or being unsecured. There may be multiple layers of mezzanine debt and the collateral layers may involve senior and junior liens against real property or personal property collateral, complicating the intercreditor issues. The senior/junior relationship may manifest itself in (a) right of payment, (b) right of security or (c) structural subordination. Senior rights of payment are normally established by contractual intercreditor or subordination agreements, while seniority in security or lien can be established by (i) priority of filing [first in time], (ii) contractual intercreditor or subordination agreements or (iii) by taking different collateral with different seniority characteristics (assets vs. equity in the entity owning the assets). Finally, structural subordination is a function of the structure of the borrower entities – e.g., if the assets are held by a operating subsidiary, a lender to the holding company parent will effectively be junior to a lender to the operating subsidiary. In real estate projects, the normal structure involves a senior loan secured by a mortgage on the real property and a junior (or “mezzanine”) loan secured by the equity interests in the entity that owns the real property. The financing issues for the junior, or “mezzanine” tier of debt vis-à-vis the borrower are similar in most respects to “single-tier” or “ordinary” debt. The key differences are the inevitable intercreditor relationship between the senior lender and the junior lender, including potential bankruptcy issues, that are not shared by transactions involving only a single level of debt. These issues are not necessarily unique to mezzanine loan transactions, but they do represent an additional layer of complexity from simple single level debt secured by a real estate mortgage. Bankruptcy Issues All other things being equal, a mezzanine financing arrangement would be subject to the same bankruptcy risks to which any other real estate financing would be subject. However, most mezzanine financings are structured such that the mezzanine lender has a claim against the owner of the real estate owning entity, and not the real estate owning entity itself. This may substantially reduce the opportunity for the mezzanine lender to participate in a bankruptcy case of the real estate owning entity.

There is virtually no commercially acceptable method of completely eliminating all bankruptcy risk from a real estate financing arrangement. Many mezzanine financing arrangements,

however, are part of a larger real estate financing which is made pursuant to commercial mortgage securitization market requirements. These requirements provide various protections designed to reduce or limit the bankruptcy risks to both the mortgage lender and the mezzanine lender involved.

SPEs

The financing arrangements generally require that each of the real estate owning entity and the owner of the real estate owning entity, among others, must be a special purpose, bankruptcy remote entity commonly referred to as an “SPE”. An SPE is an entity, formed at the time of the transaction, that is unlikely to become insolvent as a result of its own activity and that is insulated from the consequences of any related parties insolvency. The following general criteria provide the framework for SPEs:

Restrictions in both the transactional documents and the organizational documents intended to limit or eliminate the ability of an SPE from incurring liabilities other than the mortgage loan or mezzanine debt, including (i) restrictions and/or limitations on other indebtedness (see examples below) and (ii) limitations on purpose of the SPE and the activities in which it may engage (i.e., can only own and operate the mortgaged real estate; can only own the equity interests of the real estate owning entity, as the case may be).

Restrictions intended to insulate the SPE from liabilities of affiliates and third parties, including (i) the requirement that the organizational documentation and the transaction documents contain separateness covenants (see examples below) and (ii) the requirement that a nonconsolidation opinion be delivered with respect to the SPEs.

Restrictions intended to protect the SPE from dissolution risk, including (i) absolute prohibitions on liquidation and consolidation for so long as the mortgage or mezzanine loans are outstanding, (ii) restrictions on merger of the SPE, and sale of all or substantially all of the assets of the SPE, without the prior written consent of the lender; (iii) the requirement that the SPE have appropriate single-purpose, bankruptcy-remote equity owners (e.g., SPE general partners with respect to an SPE limited partnership, or an SPE member holding a meaningful economic interest with respect to an SPE limited liability company, or, perhaps, a properly structured single member LLC).

Restrictions intended to limit a solvent SPE from filing a bankruptcy petition (or taking any other insolvency action). Such provisions include the requirement that the SPE (and/or any SPE constituent entity) have an independent director or independent manager whose vote is required prior to the filing of any bankruptcy (or taking any other insolvency actions) or a so-called “golden share” held by a mezzanine lender, and coupled with an organizational document requirement that the holder must affirmatively vote for any insolvency action.

The foregoing restrictions are designed to make it unlikely that the owner of the real estate owning entity, and the real estate owning entity itself, will be able to file or sustain a bankruptcy case, thereby preventing the mezzanine lender from foreclosing on the equity interests of the real estate owning entity (see, discussion below under Control of the Real Estate Owning Entity) or the mortgage lender from foreclosing on the real estate that secures its loan. Further, depending

on the strength and effectiveness of the foregoing restrictions, and the level of risk in a given transaction, mezzanine financing arrangements may contain such other bankruptcy type protections as the parties may agree. For example, the transaction documents may make it economically problematic if the SPE were able to file a bankruptcy petition, such as providing for an exception to the non-recourse clause or a springing guaranty against individuals or related entities (typically found in commercial mortgage backed security transactions) or a springing lien against other real estate or collateral.

Recourse Guaranty

It is customary in mezzanine lending transactions to require a guaranty from the sponsor of the project, preferably the controlling individual(s) or a substantial company with assets and net worth. The guaranty is not a general guaranty of the loan, but is limited to losses from such “Bad Boy” acts such as (i) fraud or intentional misrepresentation, gross negligence or willful misconduct (including voluntarily altering the legal existence of the mezzanine borrower or the property owner, changing the state of formation of the mezzanine borrower or the property owner or the location of any collateral or changing the registered name of the mezzanine borrower or the property owner such that the perfection or priority of the liens granted lender are adversely affected), (ii) breach of environmental and hazardous substances representations and covenants; (iii) misappropriation, misapplication or conversion of insurance proceeds, condemnation awards or rents received following an event of default, or collected in advance, (iv) breach of single purpose entity covenants, (v) non-permitted subordinate financing or voluntary liens, (vi) non-permitted assignment, transfer, or conveyance of the property or any interest therein, (vii) waste and (viii) failure to pay taxes.

The recourse guaranty should also make the entire debt recourse to the sponsor in the event of a voluntary bankruptcy action of the mezzanine borrower or the property owner or of an uncontested or collusive involuntary bankruptcy action of the mezzanine borrower or the property owner, as well as a non-permitted transfer of the underlying real property. This bankruptcy protection is particularly important in the context of the structural subordination of a normal mezzanine transaction where the mezzanine lender would be unable to participate in the bankruptcy of the property owner as it is not a creditor of that entity and where a bankruptcy of the mezzanine borrower would, through the automatic stay, prevent the mezzanine lender from taking control of the property owner by foreclosing on its collateral (the equity interests in the property owner).

Control of Cash Flow

In mezzanine financing arrangements, a lock box is often required in which usually the mortgage lender (but sometimes the mezzanine lender) has control of the cash flow to ensure that all operating expenses are paid. This has the effect of reducing the bankruptcy risk from involuntary bankruptcy filings and eliminates or reduces the number of claimants in a case, thus providing an opportunity for the lender to buy claims or prevent cramdown in the event the entity were to become subject to a bankruptcy filing.

Control of the Real Estate Owning Entity

Because the mezzanine lender typically obtains a security interest in the equity of the real estate owning entity, the mezzanine lender’s default remedy is to obtain control of the real estate

owning entity upon foreclosure of the equity interest. Upon obtaining control, the mezzanine lender obviously is in a better position to limit, if not eliminate, bankruptcy risk. In the intercreditor agreement, the mortgage lender will generally have agreed with the mezzanine lender on the scope of the mezzanine lender’s rights upon foreclosure of the equity interests, which in turn reduces or eliminates the mortgage lender’s bankruptcy risk as well.

Intercreditor Agreement

As discussed further below, the intercreditor agreement is a central document in these financing arrangements. Intercreditor agreements spell out the rights of the mortgage lender and the mezzanine lender upon default, foreclosure and bankruptcy.

Documentation Issues: Intercreditor Relationship: The central intercreditor issues in multi-layered debt transactions involve the respective rights and remedies of the different lenders – from the point of the mezzanine lender, who may take what action against the borrower or its owner(s), when (and subject to what limitations) may such action be taken and what are the consequences to the mezzanine lender of the action or inaction (e.g., stepping into responsibility for non-recourse clause exceptions). A sample of major concerns is included in the lists of issues below. These issues are normally addressed in a negotiated intercreditor agreement between the lenders, although some of them are or could be addressed in a structural fashion or in the loan documents with the borrowers.

CMSA Form Intercreditor Agreement The Commercial Mortgage Securities Association (now the “CRE Finance Council”) is an international trade organization for commercial real estate capital markets. In addition to activities relating to issues such as accounting standards and terrorism insurance, which impact all types of lending, they have established loan documentation and reporting standards and prepared a standard format for secondary market post-issue information. The CMSA form Intercreditor Agreement was intended to standardize what is often a highly-negotiated document between the senior mortgage lender and the mezzanine lender in order to facilitate securitization. The CMSA form Intercreditor Agreement (available online http://www.cmsaglobal.org/Industry_Standards/Standard_Loan_Documents/Standard_Loan_Documents/) offers a good introduction to an accepted demarcation between the senior and mezzanine lenders. The market has, however, evolved considerably since the CMSA form was created and many mezzanine lenders have developed their own form of intercreditor agreement which addresses more appropriately than the CMSA form, which is more oriented towards the senior lender than current market practice.

Documentation Issues The following general points may also be helpful (please also see below for a list of typical mezzanine covenants and events of defaults): General Issues to consider when lending subordinated debt: (1) What is the collateral? (a) subordinated mortgage (b) security interest in equity (2) Control over the source of revenue (a) Consent rights for major property events (e.g., zoning change, management, hotel flagging, new construction) (b) Consent rights over operating budgets (c) Notice rights for problems (e.g. environmental hazards, casualty) (3) Flow of Funds (a) Compelling distribution of revenue if borrower of subordinated debt is not the income-generator (b) Lockboxes and separate accounts (4) Documentation Structure (a) separate mezzanine loan agreement (b) “B Note” (c) participation interest in the whole loan (5) Intercreditor/Risk Control (a) cure/notice rights for senior loan defaults (b) right to foreclose on equity collateral and keep senior loan in place (c) recourse guaranty/bankruptcy protection (d) right to accept cures and pursue recourse guaranty even if common guarantor (e) purchase rights for senior loan

General Issues to consider when lending senior debt: In addition to the normal controls over the borrower and the property, consideration should be made for the following additional risks and concerns of a senior lender when there is subordinated debt: (1) What security do the junior loans have, and what happens if they were to foreclose? (a) second mortgage – foreclosure means new property owner (b) security in equity – foreclosure means new “parent” of property owner (2) What rights should the junior lenders have to foreclose, and what should the remedies of the senior lender be? (a) cure rights by senior lenders (b) “standstill arrangements” (c) covenants from junior lenders regarding permitted activities after foreclosure (d) prohibitions on putting the borrower or its affiliates into bankruptcy (e) structural solutions to avoid bankruptcy (sometimes referred to as the “springing member” structure) (3) What controls (e.g. consent rights) has the junior lender tried to assert against the borrower or its parent?

(a) Will those consent rights interfere with the property owner’s ability to manage the property? (e.g., if the property owner needs to get multiple consents to change a line in the annual budget/sign a lease, is there unworkable interference in the ability to conduct business?)

(b) If the senior lender consents, does the junior lender have the ability to unreasonably withhold its consent?

(4) Cure rights, consent and/or notice rights in general for problems/major changes under all junior debt.

Sample Documentation Provisions

Examples of Restrictions on Additional Indebtedness

The ability of an SPE to incur indebtedness, other than the mortgage loan or the mezzanine loan, is typically limited, such as the following:

Subject to a cap on the aggregate amount of trade indebtedness that may be incurred (which maximum amount, in the case of an SPE mortgage borrower generally may be less than 2% of the principal amount of the indebtedness, and is generally zero or less than a de minimis amount in the case of the equity owner of the real estate owning entity);

Incurred in the ordinary course of business;

Related to the ownership and operation of the mortgaged property;

Required to be paid within 60 days from the date such trade payables are first incurred by the real estate owning entity (and not merely 60 days from the date on which the trade payables are due); and

Not evidenced by a promissory note or other agreement with covenants and defaults.

Examples of Separateness Covenants

In order to increase the likelihood that an SPE will be insulated from the liabilities and obligations of its affiliates and third parties, the SPE agrees to abide and, as applicable, its shareholders, members, partners, and affiliates should agree to cause the SPE to abide by the following separateness covenants with respect to the SPE:

To maintain books and records separate from any other person or entity;

To maintain its accounts separate from any other person or entity;

Not to commingle assets with those of any other entity;

To conduct its own business in its own name;

To maintain separate financial statements;

To pay its own liabilities out of its own funds;

To observe all partnership formalities;

To maintain an arm’s-length relationship with its affiliates;

To pay the salaries of its own employees and maintain a sufficient number of employees in light of its contemplated business operations;

Not to guarantee or become obligated for the debts of any other entity or hold out its credit as being available to satisfy the obligations of others;

Not to acquire obligations or securities of its partners, members, or shareholders;

To allocate fairly and reasonably any overhead for shared office space;

To use separate stationery, invoices, and checks;

Not to pledge its assets for the benefit of any other entity or make any loans or advances to any entity;

To hold itself out as a separate entity;

To correct any known misunderstanding regarding its separate entity; and

To maintain adequate capital in light of its contemplated business operations.

Typical Covenants Affirmative Covenants

(1) Existence; compliance with legal requirements (2) Payment of taxes and other charges (3) Notice of litigation (4) Access to the Property for lender (5) Notice of defaults (6) Cooperate in legal proceedings (7) Award and insurance benefits (8) Further assurances (9) Payment of recording and intangible taxes (10) Financial reporting (11) Business and operations (12) Costs of enforcement (13) Estoppel statements (14) Use of loan proceeds (15) Performance of obligations by Borrower (16) Confirmation of representations (upon securitization) (17) Leasing matters (18) Management agreement (19) Environmental matters (20) Alterations (21) Compliance with Office of Foreign Assets Control (22) O&M Program (regarding abatement of hazardous materials) (23) Appraisal (24) Mortgage reserve funds (25) Notices (26) Special distributions (27) Mortgage Borrower covenants (cause property owner to comply) (28) Mortgage Loan Estoppels (29) Replacement documents

Negative Covenants:

(1) Liens (2) Dissolution (3) Change in business (4) Debt cancellation (5) Zoning (6) No joint assessment (7) Name, identity, structure or principal place of business (8) ERISA (9) Affiliate transactions (10) Transfers (11) Limitations on securities issuances (12) Distributions (13) Refinancing or prepayment of mortgage loan (14) Acquisition of the mortgage loan

Typical Events of Default:

(1) Nonpayment of debt (2) Nonpayment of taxes and other charges (3) Lapse of insurance policies or non-delivery of copies (4) Transfer or encumbrance of collateral in violation of documents (including critical indirect interests) (5) Falsity or misleading nature of representations or warranties (6) Assignments for benefit of creditor by borrower, property owner, guarantor, critical direct or indirect parent) or other bankruptcy or insolvency event (7) Assignment of rights under loan documents (8) Breach of negative covenants (9) Breach of leasing covenants (10) Default under a property management agreement that permits the property manager to cancel the agreement (11) Violation of single-purpose entity requirements (12) Permitting liens on real property or other collateral (13) Violation of covenants relating to ERISA (14) Failure to delivery estoppel certificates when required (15) Defaults under guaranties and indemnities (16) Defaults under any pledge or security agreement for any portion of the collateral, whether superior or inferior (17) Termination or downgrading of interest rate cap agreements (18) Untruth of the assumptions in any nonconsolidation opinion (whether untrue at closing or in the future) (19) Failure of first lien priority against relevant collateral (if applicable) (20) Default under the property loan (21) Any other default of terms, covenants or conditions of the loan.

[CSMA Form]

INTERCREDITOR AGREEMENT

by and between

[___________________________]

as Senior Lender

and

[_____________________________]

as Mezzanine Lender

Dated as of _______________, 20__

Premises: __________________________________ __________________________________


THIS INTERCREDITOR AGREEMENT (this “Agreement”), dated as of _______, 20__ by and between __________________, a ___________________________, having an office at _____________________ , ___________________, _______________________________ (“Senior Lender”), and ________________________________________ a ___________________________________, having an office at ________________________, (“Mezzanine Lender”).

RECITALS

WHEREAS, pursuant to the terms, provisions and conditions set forth in that certain Loan Agreement, dated as of_____________, 20__, between ______________________, a ____ __________________ (“Borrower”) and Senior Lender (the “Senior Loan Agreement”), Senior Lender has made or is about to make a loan to Borrower in the original principal amount of $__________ (the “Senior Loan”), which Senior Loan is evidenced by a certain Promissory Note, dated as of _________, 20__ made by Borrower to Senior Lender in the amount of the Senior Loan (the “Senior Note”), and secured by, among other things, [insert as applicable: a Mortgage, Assignment of Leases and Rents and Security Agreement/Deed of Trust, Assignment of Leases and Rents and Security Agreement], dated as of ______________, 20___ made by Borrower in favor of Senior Lender (the “Senior Mortgage”), which Senior Mortgage encumbers the real property described on Exhibit A attached hereto and made a part hereof, and all improvements thereon and appurtenances thereto (collectively, the “Premises”); and

WHEREAS, pursuant to the terms, provisions and conditions set forth in that certain Mezzanine Loan Agreement, dated as of ____________, 20__, between _____________ _____________, a _____________________ (“Mezzanine Borrower”) and Mezzanine Lender (the “Mezzanine Loan Agreement”), Mezzanine Lender is the owner and holder of a loan to Mezzanine Borrower in the original principal amount of $ _____________________ (the “Mezzanine Loan”), which Mezzanine Loan is evidenced by a certain Promissory Note, dated as of _______________, 20__, made by Mezzanine Borrower in favor of Mezzanine Lender in the amount of the Mezzanine Loan (the “Mezzanine Note”), and secured by, among other things a Pledge and Security Agreement, dated as of _______________, 20__, from Mezzanine Borrower pursuant to which Mezzanine Lender is granted a first priority security interest in all of Mezzanine Borrower’s ownership interests in Borrower [and its general partner/managing member] (the “Pledge Agreement”); and

WHEREAS, Senior Lender and 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) and the 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 between the Mezzanine Loan and the Mezzanine Loan Documents, on the one hand, and the Senior Loan and the Senior Loan Documents, on the other hand.

[CSMA Form]

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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 and 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.

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

“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 _______________.

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

“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.

“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 Mezzanine Lender in accordance with Section 11(a) of this Agreement and (ii) the cure period provided to Mezzanine Lender in Section 11(a) of this Agreement 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. “Controlled by,” “controlling” and “under common control with” shall have the respective correlative meaning thereto.

“Directing Mezzanine Lender” has the meaning provided in Section 4(c) 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] [Note: for very

[CSMA Form]

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large loans, a higher amount may be required] and (except with respect to a pension advisory firm or similar fiduciary) capital/statutory surplus or shareholder’s equity of [$250,000,000] [Note: for very large loans, a higher amount may be required] and (ii) is regularly engaged in the business of making or owning commercial real estate loans or operating commercial mortgage 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 the equity interests of Borrower [and its general partner/managing member] pledged pursuant to the Pledge Agreement.

“Equity Collateral Enforcement Action” means any action or proceeding or other exercise of Mezzanine Lender’s rights and remedies commenced by Mezzanine Lender, in law or in equity, or otherwise, in order to realize upon the Equity Collateral.

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

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

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

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

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

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

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

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

[CSMA Form]

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“Mezzanine Loan Documents” means the Mezzanine Loan Agreement, the Mezzanine Note and the Pledge Agreement, together with all documents and instruments set forth on Exhibit C hereto, 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.

“Mezzanine Loan Modification” has the meaning provided in Section 7(b) hereof.

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

“Monetary Cure Period” has the meaning provided in Section 11(a) hereof.

“Permitted Fund Manager” means any Person that on the date of determination is (i) one of the entities listed on Exhibit D [to be reviewed on a case by case basis] 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.

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

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

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

“Property Manager” means ____________________ or any successor thereto as property manager of the Premises.

“Protective Advances” means all sums advanced for the purpose of payment of 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 Mezzanine Loan, amounts advanced by Mezzanine Lender pursuant to Section 11 hereof.

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

“Qualified Manager” shall mean a property manager of the Premises which (i) is a reputable management company having at least five (5) years’ experience in the management of commercial properties with similar uses as the Premises and in the jurisdiction in which the

[CSMA Form]

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Premises are located, (ii) has, for at least five (5) years prior to its engagement as property manager, managed at least (5) properties of the same property type as the Premises, (iii) at the time of its engagement as property manager has leasable square footage of the same property type as the Premises equal to the lesser of (A) 1,000,000 leasable square feet and (B) five (5) times the leasable square feet of the Premises and (iv) is not the subject of a bankruptcy or similar insolvency proceeding. [Note: for very large assets, the tests in clauses (ii) and (iii) may be required to be higher.] [Insert other appropriate criteria for type of asset. e.g. luxury hotels, convention centers, regional malls, etc.]

“Qualified Transferee” means (i) Mezzanine Lender, 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, 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) that satisfies the Eligibility Requirements;

(D) any entity Controlled by any of the entities described in clause (i) or clauses (ii)(A) or (ii)(C) above;

(E) a Qualified Trustee in connection with a securitization of, the creation of collateralized debt obligations (“CDO”) secured by or financing through an “owner trust” of, the Mezzanine Loan (collectively, “Securitization Vehicles”), so long as (A) the special servicer or manager of such Securitization Vehicle has the Required Special Servicer Rating and (B) the entire “controlling class” of such Securitization Vehicle, other than with respect to a CDO Securitization Vehicle, is held by one or more entities that are otherwise Qualified Transferees under clauses (ii)(A), (B), (C) or (D) of this definition; provided that the operative documents of the related Securitization Vehicle require that (1) in the case of a CDO Securitization Vehicle, the “equity interest” in such Securitization Vehicle is owned by one or more entities that are Qualified Transferees under clauses (ii)(A), (B), (C) or (D) of this definition and (2) if any of the relevant trustee, special servicer, manager fails to meet the requirements of this clause (E), such Person must be replaced by a Person meeting the requirements of this clause (E) within thirty (30) days; or

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(F) an investment fund, limited liability company, limited partnership or general partnership where a Permitted Fund Manager or an entity that is otherwise a Qualified Transferee under clauses (ii)(A), (B), (C) or (D) of this definition acts as the 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) or (D) of this definition.

“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” shall mean, 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 or delayed.

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

“Required Special Servicer Rating” means (i) a rating of “CSS1” in the case of Fitch, (ii) on the S&P list of approved special servicers 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 & Poors Ratings Services, a division of The McGraw-Hill Companies, Inc.

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“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.

“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 Mortgage, together with the instruments and documents set forth on Exhibit B hereto, 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” shall mean, 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 Mortgage” has the meaning provided in the Recitals hereto.

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

“Separate Collateral” means (i) the Equity Collateral, (ii) the accounts (and monies therein from time to time) established pursuant to the Mezzanine Cash Management Agreement, and (iii) any other collateral given as security for the Mezzanine Loan pursuant to the Mezzanine Loan Documents, in each case not directly constituting security for the Senior Loan.

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[“SPE Constituent Entity” means ___________________ [list any entity required to be a single purpose entity pursuant to the terms of the Senior Loan Documents]]1

“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 Mezzanine Lender” (or words of similar meaning) shall mean to the actual knowledge of officers of Mezzanine Lender with direct oversight

1 Bray & Gillespie

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responsibility for the Mezzanine Loan without independent investigation or inquiry and without any imputation whatsoever; and

(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. Approval of Loans and Loan Documents.

(a) 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, subject to the terms and provisions of this Agreement, all of the terms and provisions of the Senior Loan Documents, (ii) the execution, delivery and performance of the Senior 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 Mezzanine Loan Documents, (iii) Senior Lender is under no obligation or duty to, nor has Senior Lender represented that it will, see to the application of the proceeds of the Senior Loan by Borrower or any other Person to whom Senior Lender disburses such proceeds, and (iv) 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.

(b) 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 Loan 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) Mezzanine Lender is under no obligation or duty to, nor has Mezzanine Lender represented that it will, see to the application of the proceeds of the Mezzanine Loan by Mezzanine Borrower or any other Person to whom Mezzanine Lender disburses such proceeds and (iv) any application or use of the proceeds of the Mezzanine Loan 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 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.

Section 3. Representations and Warranties.

(a) Mezzanine Lender hereby represents and warrants as follows:

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(i) Exhibit C attached hereto and made a part hereof is a true, correct and complete listing of all of the Mezzanine Loan Documents as of the date hereof. To 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 any of the Mezzanine Loan Documents.

(ii) Mezzanine Lender is the legal and beneficial owner of the entire 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.

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

(iv) Mezzanine Lender has, independently and without reliance upon Senior 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.

(v) 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.

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

(vii) Mezzanine Lender has duly executed and delivered this Agreement and this Agreement constitutes the legal, valid, and binding agreement of Mezzanine Lender enforceable against 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.

(viii) To 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 Mezzanine Lender of this Agreement or consummation by Mezzanine Lender of the transactions contemplated by this Agreement.

(ix) 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 Mezzanine Lender, (w) to Mezzanine Lender’s

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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 Mezzanine Lender is a party or to which any of its properties are subject, (x) to Mezzanine 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 Mezzanine Lender pursuant to the terms of any such contract, mortgage, lease, bond, indenture, agreement, franchise, or other instrument (provided, however, that Mezzanine Lender shall have the right to grant a lien, charge, encumbrance, claim or security interest in the 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 Mezzanine Lender has knowledge against, or binding upon, Mezzanine Lender or upon any of the securities, properties, assets, or business of Mezzanine Lender or (z) to Mezzanine Lender’s knowledge, constitute a violation by Mezzanine Lender of any statute, law or regulation that is applicable to Mezzanine Lender.

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

(b) Senior Lender hereby represents and warrants as follows:

(i) Exhibit B attached hereto and made a part hereof is a true, correct and complete listing of the Senior Loan Documents as of the date hereof. 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.

(ii) 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) Senior Lender has, independently and without reliance upon 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.

(v) 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,

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deliver, and perform this Agreement and consummate the transactions contemplated hereby.

(vi) 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.

(vii) 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.

(viii) 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.

(ix) 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.

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

Section 4. Transfer of Mezzanine Loan or Senior Loan.

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(a) Mezzanine Lender shall not Transfer more than 49% of its beneficial interest in the Mezzanine Loan unless 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 must assume in writing the obligations of Mezzanine Lender hereunder and agree to be bound by the terms and provisions hereof. Such proposed transferee shall also remake each of the representations and warranties contained herein for the benefit of the Senior Lender.

(b) At least five (5) days prior to a transfer to a Qualified Transferee, the Mezzanine Lender shall provide to Senior Lender and, if any Certificates are outstanding, to the Rating Agencies, a certification that such transfer will be made in accordance with this Section 4, such certification to include the name and contact information of the Qualified Transferee.

(c) If more than one Person shall hold a direct interest in the Mezzanine Loan, the holder(s) of more than 50% of the principal amount of the Mezzanine Loan shall designate by written notice to Senior Lender one of such Persons (the “Directing Mezzanine Lender”) to act on behalf of all such Persons holding an interest in the 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 Mezzanine Lender pursuant to this Agreement and to exercise the rights and power given to Mezzanine Lender hereunder, including any approval rights of Mezzanine Lender; provided, that until the Directing Mezzanine Lender has been so designated, the last Person known to the Senior Lender to hold more than a 50% direct interest in the Mezzanine Loan shall be deemed to be the Directing Mezzanine Lender. Once the Directing Mezzanine Lender has been designated hereunder, Senior 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 Mezzanine Loan of the designation of a different Person to act as the Directing Mezzanine Lender.

(d) 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) Senior Lender may, from time to time, in its sole discretion Transfer all or any 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 Loan and the Mezzanine Loan Documents in accordance with the terms and provisions of this Agreement.

Section 5. Foreclosure of Separate Collateral.

(a) Mezzanine Lender shall not exercise any rights it may have under the Pledge Agreement and the other Mezzanine Loan Documents or applicable law with respect to 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 a Rating Agency Confirmation unless (i) the transferee of title to the Equity Collateral is

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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, debt service, ground rents, 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; provided, that the implementation of such hard cash management and reserves would not 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 Mezzanine Lender shall provide notice of the transfer and an officer’s certificate from an officer of Mezzanine Lender certifying that all conditions set forth in this Section 5(a) have been satisfied to Senior Lender and the Rating Agencies upon consummation of any transfer of the Equity Collateral pursuant to this Section 5(a). Senior Lender 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 (each, a “Third Party Obligor”), such transferee or an Affiliate thereof reasonably satisfactory to the Senior Lender shall: (A) execute and deliver to Senior Lender 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,2 and (B) if there are Certificates then outstanding, deliver (or cause to be delivered) to Senior Lender 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 Mezzanine Lender to exercise its 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 Mezzanine Lender or any purchaser at a UCC sale obtains title to the Separate Collateral, Senior Lender hereby acknowledges and agrees that [optional: any transfer or assumption fee in the Senior Loan Agreement 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, provided the conditions in Section 5(a) are met. Senior Lender also acknowledges and agrees that it will not impose any unreasonable fees or delays in connection with such Transfer.

Section 6. Notice of Rating Confirmation. Mezzanine Lender promptly shall notify Senior Lender of any intended action relating to the Mezzanine Loan which would require Rating Agency Confirmation pursuant to this Agreement and shall cooperate with Senior Lender 2 Glitch that allows mezz to foreclose without providing a replacement recourse guarantor

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in obtaining such confirmation. Senior Lender promptly shall notify 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 Mezzanine Lender in obtaining such confirmation. Mezzanine Lender shall pay all fees and expenses of the Rating Agencies in connection with any request for any Rating Agency Confirmation pursuant to this Agreement.

Section 7. Modifications, Amendments, Etc.

(a) Senior Lender shall have the right without the consent of 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 or principal amount of the Senior Loan, (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 limiting transfers of interests in the Borrower or the Premises, (vi) modify or amend the terms and provisions of the Senior Loan Cash Management Agreement with respect to the manner, timing and method of the application of payments under the Senior Loan Documents, (vii) cross default the Senior Loan with any other indebtedness, (viii) consent to 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 Loan, (ix) obtain 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), or (x) 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; provided, however, in no event shall Senior Lender be obligated to obtain Mezzanine Lender’s 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 under no conditions shall clause (i) (with respect to increase principal amount only), or clause (x) be modified without the written consent of Mezzanine Lender. In addition and notwithstanding the foregoing provisions of this Section 7, any amounts funded 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) Mezzanine Lender shall have the right without the consent of Senior Lender in each instance to enter into any amendment, deferral, extension, modification, increase, renewal, replacement, consolidation, supplement or waiver (collectively, a “Mezzanine Loan Modification”) of the Mezzanine Loan or the Mezzanine Loan Documents provided that no such Mezzanine Loan Modification shall (i) increase the interest rate or principal amount of the Mezzanine Loan, (ii) increase in any other material respect any monetary obligations of

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Mezzanine Borrower under the Mezzanine Loan Documents, (iii) extend or shorten the scheduled maturity date of the Mezzanine Loan (except that Mezzanine Lender may permit Mezzanine Borrower to exercise any extension options in accordance with the terms and provisions of the Mezzanine Loan Documents), (iv) convert or exchange the Mezzanine Loan into or for any other indebtedness or subordinate any of the Mezzanine Loan to any indebtedness of Mezzanine Borrower, (v) 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 (vi) cross default the Mezzanine Loan with any other indebtedness. Notwithstanding anything to the contrary contained herein, if an Event of Default exists under the Mezzanine Loan Documents, Mezzanine Lender shall be permitted to modify or amend the Mezzanine Loan Documents in connection with a work-out or other surrender, compromise, release, renewal or modification of the Mezzanine Loan except that under no conditions shall clause (i), with respect to increases in principal amounts only, clause (ii), clause (iii) (with respect to shortening the maturity only), clause (iv) or clause (v) be modified without the written consent of the Senior Lender. In addition and notwithstanding the foregoing provisions of this Section 7(b), any amounts funded by the Mezzanine Lender under the Mezzanine Loan Documents as a result of (A) the making of any Protective Advances or other advances by the Mezzanine Lender, or (B) interest accruals or accretions and any compounding thereof (including default interest), shall not be deemed to contravene this Section 7(b).

(c) Senior Lender shall deliver to Mezzanine Lender copies of any and all modifications, amendments, extensions, consolidations, spreaders, restatements, alterations, changes or revisions to any one or more of the Senior Loan Documents (including, without limitation, any side letters, waivers or consents entered into, executed or delivered by Senior Lender) within a reasonable time after any of such applicable instruments have been executed by Senior Lender.

(d) Mezzanine Lender shall deliver to Senior Lender copies of any and all modifications, amendments, extensions, consolidations, spreaders, restatements, alterations, changes or revisions to any one or more of the Mezzanine Loan Documents (including, without limitation, any side letters, waivers or consents entered into, executed or delivered by Mezzanine Lender) within a reasonable time after any of such applicable instruments have been executed by Mezzanine Lender.

Section 8. Subordination of Mezzanine Loan and Mezzanine Loan Documents.

(a) Mezzanine Lender hereby subordinates and makes junior the Mezzanine Loan, the Mezzanine Loan Documents and the liens and security interests created thereby, and all rights, remedies, terms and covenants contained therein to (i) the Senior Loan, (ii) the liens and security interests created by the Senior Loan Documents and (iii) all of the terms, covenants, conditions, rights and remedies contained in the Senior Loan Documents, and no amendments or modifications to the Senior Loan Documents or waivers of any provisions thereof shall affect the subordination thereof as set forth in this Section 8(a). Mezzanine Lender hereby acknowledges and agrees that the Mezzanine Loan is not secured by a lien on the Premises or any of the other collateral securing the Senior Loan or any other assets of the Borrower.

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(b) Every document and instrument included within the Mezzanine Loan Documents shall be subject and subordinate to each and every document and instrument included within the Senior Loan Documents and all extensions, modifications, consolidations, supplements, amendments, replacements and restatements of and/or to the Senior Loan Documents.

(c) This Agreement shall not be construed as subordinating and shall not subordinate or impair Mezzanine Lender’s first lien priority right, estate and interest in and to the Separate Collateral and Senior Lender hereby acknowledges and agrees that Senior Lender does not have and shall not hereafter acquire, any lien on, or any other interest whatsoever in, the Separate Collateral, or any part thereof, and that the exercise of remedies and realization upon the Separate Collateral by Mezzanine Lender or a Loan Pledgee in accordance with the terms and provisions of this Agreement shall not in and of itself constitute a default or an Event of Default under the Senior Loan Documents.

Section 9. Payment Subordination.

(a) Except (i) as otherwise expressly provided in this Agreement and (ii) in connection with the exercise by Mezzanine Lender of its rights and remedies with respect to the Separate Collateral in accordance with the terms of this Agreement, all of Mezzanine Lender’s rights to payment of the Mezzanine Loan and the obligations evidenced by the Mezzanine Loan Documents are hereby subordinated to all of Senior Lender’s rights to payment by Borrower of the Senior Loan and the obligations secured by the Senior Loan Documents, and Mezzanine Lender shall not accept or receive payments (including, without limitation, whether in cash or other property and whether received directly, indirectly or by set-off, counterclaim or otherwise) from Borrower and/or from the Premises prior to the date that all obligations of Borrower to Senior Lender under the Senior Loan Documents are paid. If a Proceeding shall have occurred or a Continuing Senior Loan Event of Default shall have occurred and be continuing, Senior Lender shall be entitled to receive payment and performance in full of all amounts due or to become due to Senior Lender before Mezzanine Lender is entitled to receive any payment on account of the Mezzanine Loan. All payments or distributions upon or with respect to the Mezzanine Loan which are received by Mezzanine Lender contrary to the provisions of this Agreement shall be received and held in trust by the Mezzanine Lender for the benefit of Senior Lender and shall be paid over to Senior Lender in the same form as so received (with any necessary endorsement) to be applied (in the case of cash) to, or held as collateral (in the case of non-cash property or securities) for, the payment or performance of the Senior Loan in accordance with the terms of the Senior Loan Documents. Nothing contained herein shall prohibit the Mezzanine Lender from making Protective Advances (and adding the amount thereof to the principal balance of the Mezzanine Loan) notwithstanding the existence of a default under the Senior Loan at such time.

(b) Notwithstanding anything to the contrary contained in this Agreement, including, without limitation, Section 9(a), provided that no Event of Default shall then exist under the Senior Loan Documents, Mezzanine Lender may accept payments of any amounts due and payable from time to time which Mezzanine Borrower is obligated to pay Mezzanine Lender

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in accordance with the terms and conditions of the Mezzanine Loan Documents and Mezzanine Lender shall have no obligation to pay over to Senior Lender any such amounts.

(c) Mezzanine Lender may take any Equity Collateral Enforcement Action which is permitted under Section 5 hereof; provided, however, that (i) Mezzanine Lender shall, prior to commencing any Equity Collateral Enforcement Action, give the Senior Lender written notice of the default which would permit Mezzanine Lender to commence such Equity Collateral Enforcement Action and (ii) Mezzanine Lender shall provide Senior Lender with copies of any and all material notices, pleadings, agreements, motions and briefs served upon, delivered to or with any party to any Equity Collateral Enforcement Action and otherwise keep Senior Lender reasonably apprised as to the status of any Equity Collateral Enforcement Action.

(d) In the event of a casualty to the buildings or improvements constructed on any portion of the Premises or a condemnation or taking under a power of eminent domain of all or any portion of the Premises, Senior Lender shall have a first and prior interest in and to any payments, awards, proceeds, distributions, or consideration arising from any such event (the “Award”). If the amount of the Award is in excess of all amounts owed to Senior Lender under the Senior Loan Documents, however, and either the Senior Loan has been paid in full or Borrower is entitled to a remittance of same under the Senior Loan Documents other than to restore the Premises, such excess Award or portion to be so remitted to Borrower shall, to the extent permitted in the Senior Loan Documents, be paid to or at the direction of Mezzanine Lender, unless other Persons have claimed the right to such awards or proceeds, in which case Senior Lender shall only be required to provide notice to Mezzanine Lender of such excess Award and of any other claims thereto. In the event of any competing claims for any such excess Award, Senior Lender shall continue to hold such excess Award until Senior Lender receives an agreement signed by all Persons making a claim to the excess Award or a final order of a court of competent jurisdiction directing Senior Lender as to how and to which Person(s) the excess Award is to be distributed. Notwithstanding the foregoing, in the event of a casualty or condemnation, Senior Lender shall release the Award from any such event to the Borrower if and to the extent required by the terms and conditions of the Senior Loan Documents in order to repair and restore the Premises in accordance with the terms and provisions of the Senior Loan Documents. Any portion of the Award made available to the Borrower for the repair or restoration of the Premises shall not be subject to attachment by Mezzanine Lender.

Section 10. Rights of Subrogation; Bankruptcy.

(a) Each of Mezzanine Lender and Senior Lender hereby waives any requirement for marshaling of assets thereby in connection with any foreclosure of any security interest or any other realization upon collateral in respect of the Senior Loan Documents or the Mezzanine Loan Documents, as applicable, or any exercise of any rights of set-off or otherwise. Each of Mezzanine Lender and Senior Lender assumes all responsibility for keeping itself informed as to the condition (financial or otherwise) of Borrower, Mezzanine Borrower, the condition of the Premises and all other collateral and other circumstances and, except for notices expressly required by this Agreement, neither Senior Lender nor Mezzanine Lender shall have any duty whatsoever to obtain, advise or deliver information or documents to the other relative to such condition, business, assets and/or operations. Mezzanine Lender agrees that Senior Lender

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owes no fiduciary duty to Mezzanine Lender in connection with the administration of the Senior Loan and the Senior Loan Documents and Mezzanine Lender agrees not to assert any such claim. Senior Lender agrees that Mezzanine Lender owes no fiduciary duty to Senior Lender in connection with the administration of the Mezzanine Loan and the Mezzanine Loan Documents and Senior Lender agrees not to assert any such claim.

(b) No payment or distribution to Senior Lender pursuant to the provisions of this Agreement and no Protective Advance by Mezzanine Lender shall entitle Mezzanine Lender to exercise any right of subrogation in respect thereof prior to the payment in full of the Senior Loan Liabilities, and Mezzanine Lender agrees that, except with respect to the enforcement of its remedies under the Mezzanine Loan Documents permitted hereunder, prior to the satisfaction of all Senior Loan Liabilities it shall not acquire, by subrogation or otherwise, any lien, estate, right or other interest in any portion of the Premises or any other collateral now securing the Senior Loan or the proceeds therefrom that is or may be prior to, or of equal priority to, any of the Senior Loan Documents or the liens, rights, estates and interests created thereby.

(c) Subject to Section 30 of this Agreement, the provisions of this Agreement shall be applicable both before and after the commencement, whether voluntary or involuntary, of any case, proceeding or other action against Borrower [or any SPE Constituent Entity]3 under any existing or future law of any jurisdiction relating to bankruptcy, insolvency, reorganization or relief of debtors (a “Proceeding”). For as long as the Senior Loan shall remain outstanding, Mezzanine Lender shall not, and shall not solicit any person or entity to, and shall not direct or cause Mezzanine Borrower to direct or cause either the Borrower or any entity which controls Borrower (the “Borrower Group”) to: (i) commence any Proceeding; (ii) institute proceedings to have Borrower [or any SPE Constituent Entity] adjudicated a bankrupt or insolvent; (iii) consent to, or acquiesce in, the institution of bankruptcy or insolvency proceedings against Borrower [or any SPE Constituent Entity]; (iv) file a petition or consent to the filing of a petition seeking reorganization, arrangement, adjustment, winding-up, dissolution, composition, liquidation or other relief by or on behalf of Borrower [or any SPE Constituent Entity]; (v) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower [or any SPE Constituent Entity], the Premises (or any portion thereof) or any other collateral securing the Senior Loan (or any portion thereof); (vi) make an assignment for the benefit of any creditor of Borrower [or any SPE Constituent Entity]; (vii) seek to consolidate the Premises or any other assets of the Borrower [or any SPE Constituent Entity] with the assets of the Mezzanine Borrower or any member of the Borrower Group in any proceeding relating to bankruptcy, insolvency, reorganization or relief of debtors; or (viii) take any action in furtherance of any of the foregoing.

(d) If Mezzanine Lender is deemed to be a creditor of Borrower or any SPE Constituent Entity in any Proceeding (i) Mezzanine Lender hereby agrees that it shall not make any election, give any consent, commence any action or file any motion, claim, obligation, notice or application or take any other action in any Proceeding by or against the Borrower [or any SPE Constituent Entity] without the prior consent of Senior Lender, except to the extent necessary to preserve or realize upon Mezzanine Lender’s interest in the Equity Collateral; provided, 3 Bray & Gillespie

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however, that any such filing shall not be as a creditor of the Borrower, (ii) Senior Lender may vote in any such Proceeding any and all claims of Mezzanine Lender, and Mezzanine Lender hereby appoints the Senior Lender as its agent, and grants to the Senior Lender an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of exercising any and all rights and taking any and all actions available to the Mezzanine Lender in connection with any case by or against the Borrower [or any SPE Constituent Entity] in any Proceeding, including without limitation, the right to file and/or prosecute any claims, to vote to accept or reject a plan, to make any election under Section 1111(b) of the Bankruptcy Code; provided, however, that with respect to any proposed plan of reorganization in respect of which creditors are voting, Senior Lender may vote on behalf of Mezzanine Lender only if the proposed plan would result in Senior Lender being “impaired” (as such term is defined in the United States Bankruptcy Code) and (iii) Mezzanine Lender shall not challenge the validity or amount of any claim submitted in such Proceeding by Senior Lender in good faith or any valuations of the Premises or other Senior Loan collateral submitted by Senior Lender in good faith, in such Proceeding or take any other action in such Proceeding, which is adverse to Senior Lender’s enforcement of its claim or receipt of adequate protection (as that term is defined in the Bankruptcy Code).

Section 11. Rights of Cure.

(a) Prior to Senior Lender commencing any Enforcement Action under the Senior Loan Documents, Senior Lender shall provide written notice of the default which would permit the Senior Lender to commence such Enforcement Action to Mezzanine Lender and any Loan Pledgee entitled to notice thereof pursuant to Section 15 of this Agreement, whether or not Senior Lender is obligated to give notice thereof to Borrower (each, a “Senior Loan Default Notice”) and shall permit Mezzanine Lender an opportunity to cure such default in accordance with the provisions of this Section 11(a). If the default is a monetary default relating to a liquidated sum of money, Mezzanine Lender shall have until five (5) Business Days after the later of (i) the giving by Senior Lender of the Senior Loan Default Notice and (ii) the expiration of Borrower’s cure provision, if any, (a “Monetary Cure Period”) to cure such monetary default; provided, however, in the event it elects to cure any such monetary default, Mezzanine Lender shall (x) defend and hold harmless Senior Lender for all cost, expenses, losses, liabilities, obligations, damages, penalties, costs, and disbursements imposed on, incurred by or asserted against Senior Lender due to or arising from such Monetary Cure Period and (y) without duplication of the foregoing, reimburse the Senior Lender for any interest charged by Senior Lender on any required (pursuant to applicable pooling and servicing agreement) advances for monthly payments of principal and/or interest on the Senior Loan and/or on any Protective Advances. [Optional: Mezzanine Lender shall not be required, in order to effect a cure hereunder (other than the cure by Mezzanine Lender of a default in the payment of the Senior Loan in full on the maturity date thereof or the reimbursement of interest on advances for monthly payment of principal and/or interest and/or on any Protective Advances, as aforesaid), to pay any interest calculated at the default rate under the Senior Loan Documents to the extent the same is in excess of the rate of interest which would have been payable by Borrower in the absence of such default (and irrespective of any cure of such default by Mezzanine Lender pursuant to the provisions of this Agreement), and no interest shall accrue at the default rate as against Mezzanine Lender for such period.] Mezzanine Lender shall not have the right to cure as

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hereinabove set forth with respect to monthly scheduled debt service payments on the Senior Loan for a period of more than [four] consecutive months unless Mezzanine Lender has commenced and is continuing to diligently pursue its rights against the Separate Collateral. If the default is of a non-monetary nature, Mezzanine Lender shall have the same period of time as the Borrower under the Loan Documents to cure such non-monetary default; provided, however, if such non-monetary default is susceptible of cure but cannot reasonably be cured within such period and if curative action was promptly commenced and is being continuously and diligently pursued by Mezzanine Lender, Mezzanine Lender shall be given an additional period of time as is reasonably necessary for Mezzanine Lender in the exercise of due diligence to cure such non-monetary default for so long as (i) Mezzanine Lender makes or causes to be made timely payment of Borrower’s regularly scheduled monthly principal and/or interest payments under the Senior Loan and any other amounts due under the Senior Loan Documents, (ii) such additional period of time does not exceed thirty (30) days, unless such non-monetary default is of a nature that can not be cured within such thirty (30) days, in which case, Mezzanine Lender shall have such additional time as is reasonably necessary to cure such non-monetary default, (iii) such default is not caused by a bankruptcy, insolvency or assignment for the benefit of creditors of Borrower and (iv) during such non-monetary cure period, there is no material impairment to the value, use or operation of the Premises. Any additional cure period granted to the Mezzanine Lender hereunder shall automatically terminate upon the bankruptcy (or similar insolvency) of the Borrower.

(b) To the extent that any Qualified Transferee acquires the Equity Collateral in accordance with the provisions and conditions of this Agreement, such Qualified Transferee shall acquire the same subject to the Senior Loan and the terms, conditions and provisions of the Senior Loan Documents for the balance of the term thereof, which shall not be accelerated by Senior Lender solely due to such acquisition and shall remain in full force and effect; provided, however, that (i) such Qualified Transferee shall have caused Borrower to reaffirm in writing, subject to such exculpatory provisions as shall be set forth in the Senior Loan Documents, all of the terms, conditions and provisions of the Senior Loan Documents on Borrower’s part to be performed and (ii) all defaults under the Senior Loan which remain uncured as of the date of such acquisition have been cured by such Qualified Transferee or waived by Senior Lender except for defaults that are not susceptible of being cured by such Qualified Transferee; provided, that such defaults which are not susceptible of being cured do not materially impair the value, use or operation of the Premises.4 [Optional: Notwithstanding any contrary or inconsistent provision of this Agreement, the Senior Loan Documents or the Mezzanine Loan Documents, no acquisition or other fee or similar charge shall be due in connection with such Qualified Transferee’s acquisition of any interest in Borrower or the Premises as the result of a Equity Collateral Enforcement Action or assignment in lieu of foreclosure or other negotiated settlement in lieu of any of the foregoing.]

(c) So long as no Event of Default shall have occurred and be continuing under the Senior Loan Documents, all funds held and applied pursuant to the Senior Loan Cash

4 Stuyvesant

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Management Agreement, shall continue to be applied pursuant thereto and shall not be applied by Senior Lender to prepay outstanding principal balance of the Senior Loan.

Section 12. No Actions; Restrictive Provisions. Senior Lender consents to Mezzanine Lender’s right, pursuant to the Mezzanine Loan Documents, under certain circumstances, to cause the termination of the Property Manager. In the event both Mezzanine Lender and Senior Lender shall have such rights at any time, and Senior Lender shall fail to exercise such rights, Mezzanine Lender may exercise such rights, provided such exercise may be superseded by any subsequent exercise of such rights by Senior Lender pursuant to the Senior Loan Documents. Upon the occurrence of any event which would entitle Mezzanine Lender to cause the termination of the Property Manager pursuant to the Mezzanine Loan Documents, Mezzanine Lender shall have the right to select, or cause the selection, of a replacement property manager (including any asset manager) or leasing agent for the Premises, which replacement manager, asset manager and/or leasing agent shall either (a) be subject to Senior Lender’s reasonable approval and, if any Certificates are then outstanding, be subject to a Rating Agency Confirmation or (b) be a Qualified Manager. Notwithstanding anything in this Section 12 to the contrary, if an Event of Default under the Senior Loan then exists or any other event shall have occurred pursuant to which Senior Lender has the right to select any replacement manager, asset manager and/or leasing agent pursuant to the Senior Loan Documents, Senior Lender shall have the sole right to select any replacement manager, asset manager and/or leasing agent, whether or not a new manager or agent was retained by Mezzanine Lender.

Section 13. Right to Purchase Senior Loan.

(a) If the Senior Loan has been accelerated, any Enforcement Action has been commenced and is continuing under the Senior Loan Documents or the Senior Loan is a “specially serviced mortgage loan” under the applicable pooling and servicing agreement (each of the foregoing, a “Purchase Option Event”), upon ten (10) Business Days prior written notice to Senior Lender (the “Purchase Notice”), Mezzanine Lender shall have the right to purchase, in whole but not in part, the Senior Loan for a price equal to the outstanding principal balance thereof, together with all accrued interest and other amounts due thereon (including, without limitation, any late charges, default interest, exit fees, advances and post-petition interest), any Protective Advances made by Senior Lender and any interest charged by Senior Lender on any advances for monthly payments of principal and/or interest on the Senior Loan and/or on any Protective Advances), including all costs and expenses (including legal fees and expenses) actually incurred by Senior Lender in enforcing the terms of the Loan Documents (the “Loan Purchase Price”). Concurrently with payment to the Senior Lender of the Loan Purchase Price, Senior Lender shall deliver or cause to be delivered Mezzanine Lender all Senior Loan Documents held by or on behalf of Senior Lender and will execute in favor of Mezzanine Lender or its designee assignment documentation, in form and substance reasonably acceptable to Mezzanine Lender, at the sole cost and expense of Mezzanine Lender to assign the Senior Loan and its rights under the Senior Loan Documents (without recourse, representations or warranties, except for representations as to the outstanding balance of the Senior Loan and as to Senior Lender’s not having assigned or encumbered its rights in the Loan). The right of Mezzanine Lender to purchase the Senior Loan shall automatically terminate (i) upon a transfer of the

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Premises by foreclosure sale, sale by power of sale or delivery of a deed in lieu of foreclosure or (ii) if a Purchase Option Event ceases to exist.

(b) Mezzanine Lender covenants not to enter any agreement with the Borrower or any Affiliate thereof to purchase the Senior Loan pursuant to subsection (a) above or in connection with any refinancing of the Senior Loan in any manner designed to avoid or circumvent the provisions of the Senior Loan Documents which require the payment of a prepayment fee or yield maintenance charge in connection with a prepayment of the Senior Loan by the Borrower.

Section 14. Additional Understandings. For as long as the Mezzanine Loan remains outstanding:

(a) Notices of Transfer; Consent. Senior Lender promptly shall notify Mezzanine Lender if Borrower seeks or requests a release of the lien of the Senior Loan or seeks or requests Senior Lender’s consent to, or take any action in connection with or in furtherance of, a sale or transfer of all or any material portion of the Premises, the granting of a further mortgage, deed of trust or similar encumbrance against the Premises or a prepayment or refinancing of the Senior Loan. In the event of a request by the Borrower for Senior Lender’s consent to either (i) the sale or transfer of all or any material portion of the Premises or (ii) the granting of a further mortgage, deed of trust or similar encumbrance against the Premises, Senior Lender shall, if Senior Lender has the right to consent, obtain the prior written consent of Mezzanine Lender prior to Senior Lender’s granting of its consent or agreement thereto.

(b) Annual Budget. The Mezzanine Lender shall have the right to approve the annual operating budget of Borrower in accordance with the terms of the Mezzanine Loan Documents. In the event the Mezzanine Lender objects to any such proposed budget, the Mezzanine Lender shall advise the Senior Lender of such objections, along with its suggestions for changes, within ten (10) days after its receipt of such budget in accordance with the Mezzanine Loan Documents. Senior Lender agrees to consult with the Mezzanine Lender with respect to such objections and suggestions but such consultation shall not be binding on Senior Lender. The Mezzanine Lender shall consent to any changes in the budget reasonably requested by the Senior Lender.

[The following alterative is acceptable for Senior Loans with hard cash management and adequate reserves for taxes, insurance, debt service, ground rents, capital repairs and improvement expenses, tenant improvement expenses and leasing commissions, and operating expenses:

(b) Annual Budget. The Mezzanine Lender shall have the right to approve the annual operating budget of Borrower in accordance with the terms of the Mezzanine Loan Documents. Notwithstanding anything contained herein, in the Senior Loan Documents or in the Mezzanine Loan Documents, the Mezzanine Lender may require Borrower to submit the annual budget to the Mezzanine Lender for approval prior to any submission to the Senior Lender. Upon Mezzanine Lender’s approval, the Mezzanine Lender shall submit the approved budget to the Senior Lender for its approval. The Mezzanine Lender shall consent to any changes in the

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budget reasonably requested by the Senior Lender. In the event that the approval of the Mezzanine Lender is not obtained on a timely basis, the then current existing operating budget shall remain in effect with an increase in any non-discretionary expense item to either (i) the prior budgeted expense amount with a 5% increase or (ii) the actual expense incurred as evidenced by the applicable bill or invoice.]

Section 15. Financing of Mezzanine Loan. Notwithstanding any other provision hereof, Senior Lender consents to Mezzanine Lender’s pledge (a “Pledge”) of the Mezzanine Loan and of the Separate Collateral to any entity which has extended a credit facility to Mezzanine Lender that is a Qualified Transferee or a financial institution whose long-term unsecured debt is rated at least “A” (or the equivalent) or better by each Rating Agency (a “Loan Pledgee”), on the terms and conditions set forth in this Section 15; provided that a Loan Pledgee which is not a Qualified Transferee may not take title to the Equity Collateral without a Rating Agency Confirmation. Upon written notice by Mezzanine Lender to Senior Lender that the Pledge has been effected, Senior Lender agrees to acknowledge receipt of such notice and thereafter agrees: (a) to give Loan Pledgee written notice of any default by Mezzanine Lender under this Agreement of which default Senior Lender has actual knowledge; (b) to allow Loan Pledgee a period of ten (10) days (in respect of a monetary default) and a period of thirty (30) days (in respect of a non-monetary default) to cure a default by Mezzanine Lender in respect of its obligations to Senior Lender hereunder, but Loan Pledgee shall not be obligated to cure any such default; (c) that no amendment, modification, waiver or termination of this Agreement shall be effective against Loan Pledgee without the written consent of Loan Pledgee, which consent shall not be unreasonably withheld; (d) that Senior Lender shall give to Loan Pledgee copies of any Senior Loan Default Notice simultaneously with the giving of same to the Mezzanine Lender and accept any cure thereof by Loan Pledgee made in accordance with the provisions of Section 11 of this Agreement as if such cure were made by the Mezzanine Lender; and (e) that, upon written notice (a “Redirection Notice”) to Senior Lender by Loan Pledgee that Mezzanine Lender is in default, beyond applicable cure periods, under Mezzanine Lender’s obligations to Loan Pledgee pursuant to the applicable credit agreement between Mezzanine Lender and Loan Pledgee (which notice need not be joined in or confirmed by Mezzanine Lender), and until such Redirection Notice is withdrawn or rescinded by Loan Pledgee, Senior Lender shall remit to Loan Pledgee and not to Mezzanine Lender, any payments that Senior Lender would otherwise be obligated to pay to Mezzanine Lender from time to time pursuant to this Agreement, any Mezzanine Loan Document or any other agreement between Senior Lender and Mezzanine Lender that relates to the Senior Loan. Mezzanine Lender hereby unconditionally and absolutely releases Senior Lender from any liability to Mezzanine Lender on account of Senior Lender’s compliance with any Redirection Notice believed by Senior Lender to have been delivered by Loan Pledgee. Loan Pledgee shall be permitted to fully exercise its rights and remedies against Mezzanine Lender, and realize on any and all collateral granted by Mezzanine Lender to Loan Pledgee (and accept an assignment in lieu of foreclosure as to such collateral), in accordance with applicable law. In such event, the Senior Lender shall recognize Loan Pledgee (and any transferee which is also a Qualified Transferee at any foreclosure or similar sale held by Loan Pledgee or any transfer in lieu of such foreclosure), and its successors and assigns, as the successor to Mezzanine Lender’s rights, remedies and obligations under this Agreement and the Mezzanine Loan Documents and any such Loan Pledgee or Qualified Transferee shall assume in the writing the obligations of the Mezzanine Lender hereunder accruing from and after such

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Transfer and agrees to be bound by the terms and provisions hereof. The rights of Loan Pledgee under this Section 15 shall remain effective unless and until Loan Pledgee shall have notified the Senior Lender in writing that its interest in the Mezzanine Loan has terminated.

Section 16. Intentionally Omitted.

Section 17. Obligations Hereunder Not Affected.

(a) All rights, interests, agreements and obligations of Senior Lender and Mezzanine Lender under this Agreement shall remain in full force and effect irrespective of:

(i) any lack of validity or enforceability of the Senior Loan Documents or the Mezzanine Loan Documents or any other agreement or instrument relating thereto;

(ii) any taking, exchange, release or non-perfection of any other collateral, or any taking, release or amendment or waiver of or consent to or departure from any guaranty, for all or any portion of the Senior Loan or the Mezzanine Loan;

(iii) any manner of application of collateral, or proceeds thereof, to all or any portion of the Senior Loan or the Mezzanine Loan, or any manner of sale or other disposition of any collateral for all or any portion of the Senior Loan or the Mezzanine Loan or any other assets of Borrower or Mezzanine Borrower or any other Affiliates of Borrower;

(iv) any change, restructuring or termination of the corporate structure or existence of Borrower or Mezzanine Borrower or any other Affiliates of Borrower; or

(v) any other circumstance which might otherwise constitute a defense available to, or a discharge of, Borrower, Mezzanine Borrower or a subordinated creditor or a Senior Lender subject to the terms hereof.

(b) This Agreement shall continue to be effective or be reinstated, as the case may be, if at any time any payment of all or any portion of the Senior Loan is rescinded or must otherwise be returned by Senior Lender or Mezzanine Lender upon the insolvency, bankruptcy or reorganization of Borrower or otherwise, all as though such payment had not been made.

Section 18. Notices. All notices, demands, requests, consents, approvals or other communications required, permitted, or desired to be given hereunder shall be in writing sent by facsimile (with answer back acknowledged) or by registered or certified mail, postage prepaid, return receipt requested, or delivered by hand or reputable overnight courier addressed to the party to be so notified at its address hereinafter set forth, or to such other address as such party may hereafter specify in accordance with the provisions of this Section 18. Any such notice, demand, request, consent, approval or other communication shall be deemed to have been received: (a) three (3) Business Days after the date mailed, (b) on the date of sending by

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facsimile if sent during business hours on a Business Day (otherwise on the next Business Day), (c) on the date of delivery by hand if delivered during business hours on a Business Day (otherwise on the next Business Day) and (d) on the next Business Day if sent by an overnight commercial courier, in each case addressed to the parties as follows:

To Mezzanine Lender:

__________________________ __________________________ __________________________ Attention: ________________ Telecopy: (___) ____- ___

With a copy to:

___________________________ ___________________________ ___________________________ Attention: __________________ Telecopy: (___) ______-______

To Senior Lender:

__________________________ __________________________ __________________________ Attention: _________________ Telecopy: (___) _____-______

With a copy to:

__________________________ __________________________ __________________________ Attention: _________________ Telecopy: (___) ______-_____

[To Loan Pledgee:

__________________________ __________________________ __________________________ Attention: _________________ Telecopy: (___) ______-_____]

Section 19. Estoppel.

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(a) Mezzanine Lender shall, within ten (10) days following a request from Senior Lender, provide Senior Lender with a written statement setting forth the then current outstanding principal balance of the Mezzanine Loan, the aggregate accrued and unpaid interest under the Mezzanine Loan, and stating whether to Mezzanine Lender’s knowledge any default or Event of Default exists under the Mezzanine Loan.

(b) Senior Lender shall, within ten (10) days following a request from Mezzanine Lender, provide Mezzanine Lender with a written statement setting forth the then current outstanding principal balance of the Senior Loan, the aggregate accrued and unpaid interest under the Senior Loan, and stating whether to Senior Lender’s knowledge any default or Event of Default exists under the Senior Loan.

Section 20. Further Assurances. So long as all or any portion of the Senior Loan and the Mezzanine Loan remains unpaid and the Senior Mortgage encumbers the Premises, Mezzanine Lender and Senior Lender will each execute, acknowledge and deliver in recordable form and upon demand of the other, any other instruments or agreements reasonably required in order to carry out the provisions of this Agreement or to effectuate the intent and purposes hereof.

Section 21. No Third Party Beneficiaries; No Modification. The parties hereto do not intend the benefits of this Agreement to inure to Borrower, Mezzanine Borrower or any other Person. This Agreement may not be changed or terminated orally, but only by an agreement in writing signed by the party against whom enforcement of any change is sought. If any Certificates are outstanding, this Agreement shall not be amended unless a Rating Agency Confirmation has been obtained with respect to such amendment.

Section 22. Successors and Assigns. This Agreement shall bind all successors and permitted assigns of Mezzanine Lender and Senior Lender and shall inure to the benefit of all successors and permitted assigns of Senior Lender and Mezzanine Lender.

Section 23. Counterpart Originals. This Agreement may be executed in counterpart originals, each of which shall constitute an original, and all of which together shall constitute one and the same agreement.

Section 24. Legal Construction. In all respects, including, without limitation, matters of construction and performance of this Agreement and the obligations arising hereunder, this Agreement shall be governed by, and construed in accordance with, the internal laws of the State of [New York] applicable to agreements intended to be wholly performed within the State of [New York].

Section 25. No Waiver; Remedies. No failure on the part of the Senior Lender to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right hereunder preclude any other or further exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any remedies provided by law.

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Section 26. No Joint Venture. Nothing provided herein is intended to create a joint venture, partnership, tenancy-in-common or joint tenancy relationship between or among any of the parties hereto.

Section 27. Captions. The captions in this Agreement are inserted only as a matter of convenience and for reference, and are not and shall not be deemed to be a part hereof.

Section 28. Conflicts. In the event of any conflict, ambiguity or inconsistency between the terms and conditions of this Agreement and the terms and conditions of any of the Senior Loan Documents or the Mezzanine Loan Documents, the terms and conditions of this Agreement shall control.

Section 29. No Release. Nothing herein contained shall operate to release Borrower from (a) its obligation to keep and perform all of the terms, conditions, obligations, covenants and agreements contained in the Senior Loan Documents or (b) any liability of Borrower under the Senior Loan Documents or to release Mezzanine Borrower from (x) its obligation to keep and perform all of the terms, conditions, obligations, covenants and agreements contained in the Mezzanine Loan Documents or (y) any liability of Mezzanine Borrower under the Mezzanine Loan Documents.

Section 30. Continuing Agreement. This Agreement is a continuing agreement and shall remain in full force and effect until the earliest of (a) payment in full of the Senior Loan, (b) transfer of the Premises by foreclosure of the Senior Mortgage or the exercise of the power of sale contained therein or by deed-in-lieu of foreclosure, (c) transfer of title to the Mezzanine Lender of the Separate Collateral or (d) payment in full of the Mezzanine Loan; provided, however, that any rights or remedies of either party hereto arising out of any breach of any provision hereof occurring prior to such date of termination shall survive such termination.

Section 31. Severability. In the event that any provision of this Agreement or the application hereof to any party hereto shall, to any extent, be invalid or unenforceable under any applicable statute, regulation, or rule of law, then such provision shall be deemed inoperative to the extent that it may conflict therewith and shall be deemed modified to conform to such statute, regulation or rule of law, and the remainder of this Agreement and the application of any such invalid or unenforceable provisions to parties, jurisdictions or circumstances other than to whom or to which it is held invalid or unenforceable, shall not be affected thereby nor shall same affect the validity or enforceability of any other provision of this Agreement.

Section 32. Expenses.

(a) To the extent not paid by Borrower or out of or from any collateral securing the Senior Loan which is realized by Senior Lender, Mezzanine Lender agrees upon demand to pay to Senior Lender the amount of any and all reasonable expenses, including, without limitation, the reasonable fees and expenses of its counsel and of any experts or agents, which Senior Lender may incur in connection with the (i) exercise or enforcement of any of the rights of Senior Lender against Mezzanine Lender hereunder to the extent that Senior Lender is

[CSMA Form]

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the prevailing party in any dispute with respect thereto or (ii) failure by Mezzanine Lender to perform or observe any of the provisions hereof.

(b) To the extent not paid by Mezzanine Borrower out of or from any collateral securing the Mezzanine Loan which is realized by Mezzanine Lender, Senior Lender agrees upon demand to pay to Mezzanine Lender the amount of any and all reasonable expenses. including, without limitation, the reasonable fees and expenses of its counsel and of any experts or agents, which Mezzanine Lender may incur in connection with the (i) exercise or enforcement of any of the rights of Mezzanine Lender against Senior Lender hereunder to the extent that Mezzanine Lender is the prevailing party in any dispute with respect thereto or (ii) failure by Senior Lender to perform or observe any of the provisions hereof.

Section 33. Injunction. Senior Lender and Mezzanine Lender each acknowledge (and waive any defense based on a claim) that monetary damages are not an adequate remedy to redress a breach by the other hereunder and that a breach by either Senior Lender or Mezzanine Lender hereunder would cause irreparable harm to the other. Accordingly, Senior Lender and Mezzanine Lender agree that upon a breach of this Agreement by the other, the remedies of injunction, declaratory judgment and specific performance shall be available to such non-breaching party.

Section 34. Mutual Disclaimer.

(a) Each of Senior Lender and Mezzanine Lender are sophisticated lenders and/or investors in real estate and their respective decision to enter into the Senior Loan and the Mezzanine Loan is based upon their own independent expert evaluation of the terms, covenants, conditions and provisions of, respectively, the Senior Loan Documents and the Mezzanine Loan Documents and such other matters, materials and market conditions and criteria which each of Senior Lender and Mezzanine Lender deem relevant. Each of Senior Lender and Mezzanine Lender has not relied in entering into this Agreement, and respectively, the Senior Loan, the Senior Loan Documents, the Mezzanine Loan or the Mezzanine Loan Documents, upon any oral or written information, representation, warranty or covenant from the other, or any of the other’s representatives, employees, Affiliates or agents other than the representations and warranties of the other contained herein. Each of Senior Lender and Mezzanine Lender further acknowledges that no employee, agent or representative of the other has been authorized to make, and that each of Senior Lender and Mezzanine Lender have not relied upon, any statements, representations, warranties or covenants other than those specifically contained in this Agreement. Without limiting the foregoing, each of Senior Lender and Mezzanine Lender acknowledges that the other has made no representations or warranties as to the Senior Loan or the Mezzanine Loan or the Premises (including, without limitation, the cash flow of the Premises, the value, marketability, condition or future performance thereof, the existence, status, adequacy or sufficiency of the leases, the tenancies or occupancies of the Premises, or the sufficiency of the cash flow of the Premises, to pay all amounts which may become due from time to time pursuant to the Senior Loan or the Mezzanine Loan).

[CSMA Form]

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(b) Each of Senior Lender and Mezzanine Lender acknowledges that the Senior Loan and the Mezzanine Loan Documents are distinct, separate transactions and loans, separate and apart from each other.

[NO FURTHER TEXT ON THIS PAGE]

[CSMA Form]

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IN WITNESS WHEREOF, Senior Lender and Mezzanine Lender have executed this Agreement as of the date and year first set forth above.

SENIOR LENDER: _________________________________, a ________________________________

By: _____________________ Name: Title:

MEZZANINE LENDER:

________________________________ a _______________________________

By: ____________________________ Name: Title:

A-1

EXHIBIT A

[Attach Legal Description of Premises]

B-1

EXHIBIT B

Senior Loan Documents

C-1

EXHIBIT C

Mezzanine Loan Documents

D-1

EXHIBIT D

Permitted Fund Managers

[To be reviewed on a case by case basis]

AMENDED AND RESTATED INTERCREDITOR AGREEMENT

b y a n d a m o n g

WACHOVIA BANK, NATIONAL ASSOCIATION

and

MERRILL LYNCH MORTGAGE LENDING, INC., collectively, as Senior Lender

a n d

WACHO VIA BANK, NATIONAL ASSOCIATION

and

MERRILL LYNCH MORTGAGE LENDING, INC., collectively, as Mezzanine 1 Lender

and

WACHO VIA BANK, NATIONAL ASSOCIATION a n d


and



and

WACHOVIA BANK, NATIONAL ASSOCIATION a n d


and



and

USActive 7415617.4



and



and



and



and



and

GRAMERCY WAREHOUSE FUNDING I LLC, as Mezzanine 11 Lender

Dated as of February 16, 2007

USActive 74156174 -2-


THIS INTERCREDITOR AGREEMENT (this "Agreement"), dated as of February 16, 2007, by and among WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking association, and MERRILL LYNCH MORTGAGE LENDING, INC., a Delaware corporation (collectively, "Senior Lender"), WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking association, and MERRILL LYNCH MORTGAGE LENDING, INC., a Delaware corporation (collectively "Mezzanine 1 Lender"), WACHO VIA BANK, NATIONAL ASSOCIATION, a national banking association, and MERRILL LYNCH MORTGAGE LENDING, INC., a Delaware corporation (collectively "Mezzanine 2 Lender"), WACHO VIA BANK, NATIONAL ASSOCIATION, a national banking association, and MERRILL LYNCH MORTGAGE LENDING, INC., a Delaware corporation (collectively "Mezzanine 3 Lender"), WACHO VIA BANK, NATIONAL ASSOCIATION, a national banking association, and MERRILL LYNCH MORTGAGE LENDING, INC., a Delaware corporation (collectively "Mezzanine 4 Lender"), WACHO VIA BANK, NATIONAL ASSOCIATION, a national banking association, and MERRILL LYNCH MORTGAGE LENDING, INC., a Delaware corporation (collectively "Mezzanine 5 Lender"), WACHO VIA BANK, NATIONAL ASSOCIATION, a national banking association, and MERRILL LYNCH MORTGAGE LENDING, INC., a Delaware corporation (collectively, "Mezzanine 6 Lender"), WACHO VIA BANK, NATIONAL ASSOCIATION, a national banking association, and MERRILL LYNCH MORTGAGE LENDING, INC., a Delaware corporation (collectively, "Mezzanine 7 Lender"), WACHO VIA BANK, NATIONAL ASSOCIATION, a national banking association, and MERIULL LYNCH MORTGAGE LENDING, INC., a Delaware corporation (collectively, "Mezzanine 8 Lender"), WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking association, and MERRILL LYNCH MORTGAGE LENDING, INC., a Delaware corporation (collectively, "Mezzanine 9 Lender"), WACHO VIA BANK, NATIONAL ASSOCIATION, a national banking association, and MERRILL LYNCH MORTGAGE LENDING, INC., a Delaware corporation (collectively, "Mezzanine 10 Lender"), and GRAMERCY WAREHOUSE FUNDING I LLC, a Delaware limited liability company ("Mezzanine 11 Lender"). Mezzanine 1 Lender, Mezzanine 2 Lender, Mezzanine 3 Lender, Mezzanine 4 Lender, Mezzanine 5 Lender, Mezzanine 6 Lender, Mezzanine 7 Lender, Mezzanine 8 Lender, Mezzanine 9 Lender, Mezzanine 10 Lender, and Mezzanine 11 Lender are, each a "Junior Lender" and, collectively, "Junior Lenders".

RECITALS

WHEREAS, pursuant to the terms, provisions and conditions set forth in that certain Amended and Restated Loan and Security Agreement, dated as of February 16, 2007, between Borrower (defined below) and Senior Lender (the "Senior Loan Agreement"), Senior Lender has made a loan to Borrower in the original principal amount of Three Billion and No/100 Dollars ($3,000,000,000.00) (the "Senior Loan"), USActive 7415617.4

which Senior Loan is evidenced by those certain Amended and Restated Promissory Notes, dated as of February 16, 2007, given by Borrower to Senior Lender as more particularly described on Exhibit A (collectively, the "Senior Note"), and secured by, among other things, that certain Amended and Restated

Mortgage, Security Agreement, Assignment of Rents and Fixture Filing as more particularly described on Exhibit A, dated as of February 16, 2007, made by Borrower in favor of Senior Lender (collectively, the "Mortgage"), which Mortgage encumbers the real property and all improvements thereon and appurtenances thereto described in the Mortgage on (collectively, the "Premises"), (the Mortgage, and together with the instruments and documents set forth on Exhibit A hereto as any of the foregoing, including the instruments and documents set forth on Exhibit A, as same may be modified, amended, extended, supplemented, restated or replaced from time to time, subject to the limitations and agreements contained in this Agreement, the "Senior Loan Documents");

WHEREAS, pursuant to the terms, provisions and conditions set forth in that certain Amended and Restated Mezzanine 1 Loan Agreement, dated as of February 16, 2007, between Mezzanine 1 Borrower (defined below) and Mezzanine 1 Lender (the "Mezzanine 1 Loan Agreement"), Mezzanine 1 Lender has made a loan to Mezzanine 1 Borrower in the original principal amount of One Hundred Million and No/100 Dollars ($100,000,000.00) (the "Mezzanine 1 Loan"), which Mezzanine 1 Loan is evidenced by that certain Amended and Restated Promissory Note (Mezzanine 1 Loan) dated February 16, 2007 in the original principal amount of One Hundred Million and No/100 Dollars ($100,000,000.00) (the "Mezzanine 1 Note"), which Mezzanine 1 Loan is secured by, among other things, that certain Amended and Restated Pledge and Security Agreement (Mezzanine 1 Loan), dated as of February 16, 2007, from Mezzanine 1 Borrower pursuant to which Mezzanine 1 Lender is granted a first priority security interest in all of Mezzanine 1 Borrower's ownership interests in Borrower and its respective general partner(s)/managing member(s)(the "Mezzanine 1 Pledge Agreement"), and together with all documents and instruments set forth on Exhibit B hereto, (as any of the foregoing, including the documents and instruments set forth on Exhibit B, as same may be modified, amended, extended, supplemented, restated or replaced from time to time, subject to the limitations and agreements contained in this Agreement, the "Mezzanine 1 Loan Documents");

WHEREAS, pursuant to the terms, provisions and conditions set forth in that certain Amended and Restated Mezzanine 2 Loan Agreement, dated as of February 16, 2007, between Mezzanine 2 Borrower (defined below) and Mezzanine 2 Lender (the "Mezzanine 2 Loan Agreement"), Mezzanine 2 Lender has made a loan to Mezzanine 2 Borrower in the original principal amount of One Hundred Million and No/100 Dollars ($100,000,000.00) (the "Mezzanine 2 Loan"), which Mezzanine 2 Loan is evidenced by that certain Amended and Restated Promissory Note (Mezzanine 2 Loan) dated February 16, 2007 in the original principal amount of One Hundred Million and No/100 Dollars ($100,000,000.00) (the "Mezzanine 2 Note"), which Mezzanine 2 Loan is secured by, among other things, that certain Amended and Restated Pledge and Security Agreement (Mezzanine 2 Loan), dated as of February 16, 2007, from Mezzanine 2 Borrower pursuant to which Mezzanine 2 Lender is granted a first priority security interest in all of Mezzanine 2 Borrower's ownership interests in Mezzanine 1 Borrower and its respective general partner(s)/managing member(s)(the "Mezzanine 2 Pledge Agreement"), and together USActive 7415617.4 -2-

with all documents and instruments set forth on Exhibit C hereto, (as any of the foregoing, including the documents and instruments set forth on Exhibit C, as same may be modified, amended, extended, supplemented, restated or replaced from time to

time, subject to the limitations and agreements contained in this Agreement, the "Mezzanine 2 Loan Documents");

WHEREAS, pursuant to the terms, provisions and conditions set forth in that certain Amended and Restated Mezzanine 3 Loan Agreement, dated as of February 16, 2007, between Mezzanine 3 Borrower (defined below) and Mezzanine 3 Lender (the "Mezzanine 3 Loan Agreement"), Mezzanine 3 Lender has made a loan to Mezzanine 3 Borrower in the original principal amount of One Hundred Million and No/100 Dollars ($100,000,000.00) (the "Mezzanine 3 Loan"), which Mezzanine 3 Loan is evidenced by that certain Amended and Restated Promissory Note (Mezzanine 3 Loan) dated February 16, 2007 in the original principal amount of One Hundred Million and No/100 Dollars ($100,000,000.00) (the "Mezzanine 3 Note"), which Mezzanine 3 Loan is secured by, among other things, that certain Amended and Restated Pledge and Security Agreement (Mezzanine 3 Loan), dated as of February 16, 2007, from Mezzanine 3 Borrower pursuant to which Mezzanine 3 Lender is granted a first priority security interest in all of Mezzanine 3 Borrower's ownership interests in Mezzanine 2 Borrower and its respective general partner(s)/managing member(s)(the "Mezzanine 3 Pledge Agreement"), and together with all documents and instruments set forth on Exhibit D hereto, (as any of the foregoing, including the documents and instruments set forth on Exhibit D, as same may be modified, amended, extended, supplemented, restated or replaced from time to time, subject to the limitations and agreements contained in this Agreement, the "Mezzanine 3 Loan Documents");

WHEREAS, pursuant to the terms, provisions and conditions set forth in that certain Amended and Restated Mezzanine 4 Loan Agreement, dated as of February 16, 2007, between Mezzanine 4 Borrower (defined below) and Mezzanine 4 Lender (the "Mezzanine 4 Loan Agreement"), Mezzanine 4 Lender has made a loan to Mezzanine 4 Borrower in the original principal amount of One Hundred Million and No/100 Dollars ($100,000,000.00) (the "Mezzanine 4 Loan"), which Mezzanine 4 Loan is evidenced by that certain Amended and Restated Promissory Note (Mezzanine 4 Loan) dated February 16, 2007 in the original principal amount of One Hundred Million and No/100 Dollars ($100,000,000.00) (the "Mezzanine 4 Note"), which Mezzanine 4 Loan is secured by, among other things, that certain Amended and Restated Pledge and Security Agreement (Mezzanine 4 Loan), dated as of February 16, 2007, from Mezzanine 4 Borrower pursuant to which Mezzanine 4 Lender is granted a first priority security interest in all of Mezzanine 4 Borrower's ownership interests in Mezzanine 3 Borrower and its respective general partner(s)/managing member(s)(the "Mezzanine 4 Pledge Agreement"), andlogether with all documents and instruments set forth on Exhibit E hereto, (as any of the foregoing, including the documents and instruments set forth on Exhibit E as same may be modified, amended, extended, supplemented, restated or replaced from time to time, subject to the limitations and agreements contained in this Agreement, the "Mezzanine 4 Loan Documents");

WHEREAS, pursuant to the terms, provisions and conditions set forth in USActive 7415617.4 -3-

that certain Amended and Restated Mezzanine 5 Loan Agreement, dated as of February 16, 2007, between Mezzanine 5 Borrower (defined below) and Mezzanine 5 Lender (the "Mezzanine 5 Loan Agreement"), Mezzanine 5 Lender has made a loan to Mezzanine 5 Borrower in the original principal amount of One Hundred Million and No/100 Dollars ($100,000,000.00) (the

"Mezzanine 5 Loan"), which Mezzanine 5 Loan is evidenced by that certain Amended and Restated Promissory Note (Mezzanine 5 Loan) dated February 16, 2007 in the original principal amount of One Hundred Million and No/100 Dollars ($100,000,000.00) (the "Mezzanine 5 Note"), which Mezzanine 5 Loan is secured by, among other things, that certain Amended and Restated Pledge and Security Agreement (Mezzanine 5 Loan), dated as of February 16, 2007, from Mezzanine 5 Borrower pursuant to which Mezzanine 5 Lender is granted a first priority security interest in all of Mezzanine 5 Borrower's ownership interests in Mezzanine 4 Borrower and its respective general partner(s)/managing member(s)(the "Mezzanine 5 Pledge Agreement"), and together with all documents and instruments set forth on Exhibit F hereto, (as any of the foregoing, including the documents and instruments set forth on Exhibit F, as same may be modified, amended, extended, supplemented, restated or replaced from time to time, subject to the limitations and agreements contained in this Agreement, the "Mezzanine 5 Loan Documents");

WHEREAS, pursuant to the terms, provisions and conditions set forth in that certain Amended and Restated Mezzanine 6 Loan Agreement, dated as of February 16, 2007, between Mezzanine 6 Borrower (defined below) and Mezzanine 6 Lender (the "Mezzanine 6 Loan Agreement"), Mezzanine 6 Lender has made a loan to Mezzanine 6 Borrower in the original principal amount of One Hundred Million and No/100 Dollars ($100,000,000.00) (the "Mezzanine 6 Loan"), which Mezzanine 6 Loan is evidenced by that certain Amended and Restated Promissory Note (Mezzanine 6 Loan) dated February 16, 2007 in the original principal amount of One Hundred Million and No/100 Dollars ($100,000,000.00) (the "Mezzanine 6 Note"), which Mezzanine 6 Loan is secured by, among other things, that certain Amended and Restated Pledge and Security Agreement (Mezzanine 6 Loan), dated as of February 16, 2007, from Mezzanine 6 Borrower pursuant to which Mezzanine 6 Lender is granted a first priority security interest in all of Mezzanine 6 Borrower's ownership interests in Mezzanine 5 Borrower and its respective general partner(s)/managing member(s)(the "Mezzanine 6 Pledge Agreement"), and together with all documents and instruments set forth on Exhibit G hereto, (as any of the foregoing, including the documents and instruments set forth on Exhibit G, as same may be modified, amended, extended, supplemented, restated or replaced from time to time, subject to the limitations and agreements contained in this Agreement, the "Mezzanine 6 Loan Documents");

WHEREAS, pursuant to the terms, provisions and conditions set forth in that certain Amended and Restated Mezzanine 7 Loan Agreement, dated as of February 16, 2007, between Mezzanine 7 Borrower (defined below) and Mezzanine 7 Lender (the "Mezzanine 7 Loan Agreement"), Mezzanine 7 Lender has made a loan to Mezzanine 7 Borrower in the original principal amount of One Hundred Million and No/100 Dollars ($100,000,000.00) (the "Mezzanine 7 Loan"), which Mezzanine 7 Loan is evidenced by that certain Amended and Restated Promissory Note (Mezzanine 7 Loan) dated February 16, 2007 in the original principal amount of One Hundred Million and No/100 Dollars ($100,000,000.00) (the "Mezzanine 7 Note"), which Mezzanine 7 Loan is secured by, among other things, that certain Amended and Restated Pledge and Security Agreement USActive 7415617.4 -4-

(Mezzanine 7 Loan), dated as of February 16, 2007, from Mezzanine 7 Borrower pursuant to which Mezzanine 7 Lender is granted a first priority security interest in all of Mezzanine 7 Borrower's ownership interests in Mezzanine 6 Borrower and its respective general partner(s)/managing member(s)(the "Mezzanine 7 Pledge Agreement"), and together with all documents and instruments set forth on Exhibit H hereto,

(as any of the foregoing, including the documents and instruments set forth on Exhibit II, as same may be modified, amended, extended, supplemented, restated or replaced from time to time, subject to the limitations and agreements contained in this Agreement, the "Mezzanine 7 Loan Documents");

WHEREAS, pursuant to the terms, provisions and conditions set forth in that certain Amended and Restated Mezzanine 8 Loan Agreement, dated as of February 16, 2007, between Mezzanine 8 Borrower (defined below) and Mezzanine 8 Lender (the "Mezzanine 8 Loan Agreement"), Mezzanine 8 Lender has made a loan to Mezzanine 8 Borrower in the original principal amount of One Hundred Million and No/100 Dollars ($100,000,000.00) (the "Mezzanine 8 Loan"), which Mezzanine 8 Loan is evidenced by that certain Amended and Restated Promissory Note (Mezzanine 8 Loan) dated February 16, 2007 in the original principal amount of One Hundred Million and No/100 Dollars ($100,000,000.00) (the "Mezzanine 8 Note"), which Mezzanine 8 Loan is secured by, among other things, that certain Amended and Restated Pledge and Security Agreement (Mezzanine 8 Loan), dated as of February 16, 2007, from Mezzanine 8 Borrower pursuant to which Mezzanine 8 Lender is granted a first priority security interest in all of Mezzanine 8 Borrower's ownership interests in Mezzanine 7 Borrower and its respective general partner(s)/managing member(s)(the "Mezzanine 8 Pledge Agreement"), and together with all documents and instruments set forth on Exhibit I hereto, (as any of the foregoing, including the documents and instruments set forth on Exhibit I, as same may be modified, amended, extended, supplemented, restated or replaced from time to time, subject to the limitations and agreements contained in this Agreement, the "Mezzanine 8 Loan Documents");

WHEREAS, pursuant to the terms, provisions and conditions set forth in that certain Amended and Restated Mezzanine 9 Loan Agreement, dated as of February 16, 2007, between Mezzanine 9 Borrower (defined below) and Mezzanine 9 Lender (the "Mezzanine 9 Loan Agreement"), Mezzanine 9 Lender has made a loan to Mezzanine 9 Borrower in the original principal amount of One Hundred Million and No/100 Dollars ($100,000,000.00) (the "Mezzanine 9 Loan"), which Mezzanine 9 Loan is evidenced by that certain Amended and Restated Promissory Note (Mezzanine 9 Loan) dated February 16, 2007 in the original principal amount of One Hundred Million and No/100 Dollars ($100,000,000.00) (the "Mezzanine 9 Note"), which Mezzanine 9 Loan is secured by, among other things, that certain Amended and Restated Pledge and Security Agreement (Mezzanine 9 Loan), dated as of February 16, 2007, from Mezzanine 9 Borrower pursuant to which Mezzanine 9 Lender is granted a first priority security interest in all of Mezzanine 9 Borrower's ownership interests in Mezzanine 8 Borrower and its respective general partner(s)/managing member(s)(the "Mezzanine 9 Pledge Agreement"), and together with all documents and instruments set forth on Exhibit J hereto, (as any of the foregoing, including the documents and instruments set forth on Exhibit J as same may be modified, amended, extended, supplemented, restated or replaced from time to time, subject to the limitations and agreements contained in this Agreement, the "Mezzanine 9 Loan Documents");

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WHEREAS, pursuant to the terms, provisions and conditions set forth in that certain Amended and Restated Mezzanine 10 Loan Agreement, dated as of February 16, 2007, between Mezzanine 10 Borrower (defined below) and Mezzanine 10 Lender (the "Mezzanine 10 Loan Agreement"), Mezzanine 10 Lender has made a loan to Mezzanine 10 Borrower in the

original principal amount of Three Hundred Million and No/100 Dollars ($300,000,000.00) (the "Mezzanine 10 Loan"), which Mezzanine 10 Loan is evidenced by that certain Amended and Restated Promissory Note (Mezzanine 10 Loan) dated February 16, 2007 in the original principal amount of Three Hundred Million and No/100 Dollars ($300,000,000.00) (the "Mezzanine 10 Note"), which Mezzanine 10 Loan is secured by, among other things, that certain Amended and Restated Pledge and Security Agreement (Mezzanine 10 Loan), dated as of February 16, 2007, from Mezzanine 10 Borrower pursuant to which Mezzanine 10 Lender is granted a first priority security interest in all of Mezzanine 10 Borrower's ownership interests in Mezzanine 9 Borrower and its respective general partner(s)/managing member(s)(the "Mezzanine 10 Pledge Agreement"), and together with all documents and instruments set forth on Exhibit K hereto, (as any of the foregoing, including the documents and instruments set forth on Exhibit K, as same may be modified, amended, extended, supplemented, restated or replaced from time to time, subject to the limitations and agreements contained in this Agreement, the "Mezzanine 10 Loan Documents");

WHEREAS, pursuant to the terms, provisions and conditions set forth in that certain Mezzanine 11 Loan Agreement, dated as of November 17, 2006, between Mezzanine 11 Borrower (defined below) and Wachovia Bank, National Association, a national banking association, and Merrill Lynch Mortgage Lending, Inc., a Delaware corporation (collectively, "Initial Mezzanine 11 Lender") (as amended and restated by that certain Amended and Restated Mezzanine 11 Loan Agreement, dated as of February 16, 2007, between Mezzanine 11 Borrower (defined below) and Mezzanine 11 Lender, the "Mezzanine 11 Loan Agreement"), Initial Mezzanine 11 Lender made a loan to PCV ST Mezz 11 LP, a Delaware limited liability partnership ("Initial Mezzanine 11 Borrower"), in the original principal amount of Two Hundred Million and No/100 Dollars ($200,000,000.00) (the "Mezzanine 11 Loan"), which Mezzanine 11 Loan is evidenced by that certain Promissory Note (Mezzanine 11 Loan) dated as of November 17, 2006, in the original principal amount of Two Hundred Million and No/100 Dollars ($200,000,000.00) from Initial Mezzanine 11 Borrower to Initial Mezzanine 11 Lender (as amended and restated by that certain Amended and Restated Promissory Note (Mezzanine 11 Loan) dated as of February 16, 2007, from Mezzanine 11 Borrower to Mezzanine 11 Lender, the "Mezzanine 11 Note"), which Mezzanine 11 Loan is secured by, among other things, that certain Pledge and Security Agreement (Mezzanine 11 Loan), dated as of November 17, 2006, from Initial Mezzanine 11 Borrower pursuant to which Initial Mezzanine 11 Lender was granted a first priority security interest in all of Initial Mezzanine 11 Borrower's ownership interests in PCV ST Mezz 11 LP, a Delaware limited partnership, and its general partner/managing member (as amended and restated by that certain Amended and Restated Pledge and Security Agreement (Mezzanine 11 Loan) dated as of February 16, 2007 from Mezzanine 11 Borrower to Mezzanine 11 Lender, the "Mezzanine 11 Pledge Agreement"), and together with all documents and instruments set forth on Exhibit L hereto, (as any of the foregoing, including the documents and instruments set forth on Exhibit L, as same may be modified, amended, extended, supplemented, restated or replaced from time to time, subject to the limitations and agreements contained in this

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Agreement, the "Mezzanine 11 Loan Documents");

WHEREAS, Senior Lender, Mezzanine 1 Lender, Mezzanine 2 Lender, Mezzanine 3 Lender, Mezzanine 4 Lender, Mezzanine 5 Lender, Mezzanine 6 Lender, Mezzanine 7 Lender, Mezzanine 8 Lender, Mezzanine 9 Lender, Mezzanine 10 Lender, and Initial Mezzanine 11 Lender entered into that certain Intercreditor Agreement, dated as of

November 17, 2006 (the "Initial Intercreditor Agreement"), in order to provide for the relative priority of, and to evidence certain agreements with respect to, the Senior Loan Documents, the Mezzanine 1 Loan Documents, the Mezzanine 2 Loan Documents, the Mezzanine 3 Loan Documents, the Mezzanine 4 Loan Documents, the Mezzanine 5 Loan Documents, the Mezzanine 6 Loan Documents, the Mezzanine 7 Loan Documents, the Mezzanine 8 Loan Documents, the Mezzanine 9 Loan Documents, the Mezzanine 10 Loan Documents, and the Mezzanine 11 Loan Documents;

WHEREAS, on December 21, 2006, Initial Mezzanine 11 Lender assigned the Mezzanine 11 Loan and the Mezzanine 11 Loan Documents, together with all of its right, title and interest in, to and under the Initial Intercreditor Agreement, to Mezzanine 11 Lender;

WHEREAS, Mezzanine 11 Lender is currently the owner and holder of the Mezzanine 11 Loan;

WHEREAS, Senior Lender and Junior Lenders desire to enter into this Agreement to provide for the relative priority of, and to evidence certain agreements with respect to, the Senior Loan Documents, the Mezzanine 1 Loan Documents, the Mezzanine 2 Loan Documents, the Mezzanine 3 Loan Documents, the Mezzanine 4 Loan Documents, the Mezzanine 5 Loan Documents, the Mezzanine 6 Loan Documents, the Mezzanine 7 Loan Documents, the Mezzanine 8 Loan Documents, the Mezzanine 9 Loan Documents, the Mezzanine 10 Loan Documents, and the Mezzanine 11 Loan Documents on the terms and conditions hereinbelow set forth.

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 and Junior Lenders 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:

"Additional Covered Junior Loans" has the meaning provided in Section 14(c) hereof.

"Affiliate" means, as to any particular Person (as hereinafter defined), any Person directly or indirectly, through one or more intermediaries, Controlling, Controlled by or under common Control with the Person or Persons in question.

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

"Award" has the meaning set forth in Section 10(e) hereof.

USActive 7415617.4 -7-

"Borrower" has the meaning set forth on Schedule I attached hereto.

"Borrower Group" has the meaning set forth in Section 11(d)(ii)

hereof.

"Business Day" means any day other than a Saturday, Sunday or any other day on which national banks in New York, New York, Charlotte, North Carolina or the place of business of any servicer are not open for business.

"CDO" has the meaning set forth in the definition of the term "Qualified Transferee".

"CDO Asset Manager" with respect to any Securitization Vehicle (hereinafter defined) that is a CDO, shall mean the entity that is responsible for managing or administering any Junior Loan (or any interest therein) as an underlying asset of such Seemitization 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 a Junior 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 16(b) hereof.

"Conduit Credit Enhancer" has the meaning set forth in Section 16(h)(i)

hereof "Conduit Inventory Loan" has the meaning set forth in Section

16(b)(i) hereof

"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. "Controlled by," "Controlling" and "under common Control with" shall have the respective correlative meaning thereto.

"Directing Junior Lender" has the meaning set forth in Section 5(c) hereof.

"Eligibility Requirements" means, with respect to any Person, that such Person (i) has total assets (in name or under management) in excess of $650,000,000 and (except with respect to a pension advisory firm 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 with respect to commercial real estate) or operating commercial real estate 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

USActive 7415617.4 -8-

enforcement action against the Premises or any portion thereof, or Borrower, including, without limitation, the taking of possession or control of the Premises or any portion thereof, (ii) acceleration of, or demand or action taken in order to collect, all or any indebtedness secured by the Premises (other than giving 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 or any portion thereof.

"Equity Collateral" means the equity interests of Borrower or any Junior Borrower and all other collateral, products, proceeds, rights and remedies granted or pledged pursuant to the applicable Pledge Agreement, as the context may require.

"Equity Collateral Enforcement Action" means any action or proceeding or other exercise of a Junior Lender's rights and remedies commenced by such Junior Lender, in law or in equity, or otherwise, in order to realize upon the Equity Collateral (including, without limitation, an assignment in lieu of foreclosure or other negotiated settlement in lieu of any such enforcement action).

"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 Borrower, waived by Senior Lender (in writing and not through operation of law) and has not otherwise been or is not then being cured by a Junior Lender in accordance with the terms of this Agreement or as to which the cure period available to a Junior Lender hereunder has expired without a cure); (ii) with respect to the Mezzanine 1 Loan and the Mezzanine 1 Loan Documents, any "Event of Default" (as defined therein) thereunder which has occurred and is continuing (i.e., has not been cured by Mezzanine 1 Borrower, waived by Mezzanine 1 Lender (in writing and not through operation of law) and has not otherwise been or is not then being cured by a Junior Lender in accordance with the terms of this Agreement or as to which the cure period available to a Junior Lender hereunder has expired without a cure); (iii) with respect to the Mezzanine 2 Loan and the Mezzanine 2 Loan Documents, any "Event of Default" (as defined therein) thereunder which has occurred and is continuing (i.e., has not been cured by Mezzanine 2 Borrower, waived by Mezzanine 2 Lender (in writing and not through operation of law) and has not otherwise been or is not then being cured by a Junior Lender in accordance with the terms of this Agreement or as to which the cure period available to a Junior Lender hereunder has expired without a cure); (iv) with respect to the Mezzanine 3 Loan and the Mezzanine 3 Loan Documents, any "Event of Default" (as defined therein) thereunder which has occurred and is continuing (i.e., has not been cured by Mezzanine 3 Borrower, waived by Mezzanine 3 Lender (in writing and not through operation of law) and has not otherwise been or is not then being cured by a Junior Lender in accordance with the terms of this Agreement or as to which the cure period available to a Junior Lender hereunder has expired without a cure); (v) with respect to the Mezzanine 4 Loan and the Mezzanine 4 Loan Documents, any "Event of Default" (as defined therein) thereunder which has occurred and is continuing (i.e., has not been cured by Mezzanine 4 Borrower, waived by Mezzanine 4 Lender (in writing and not through operation of law) and has not otherwise been or is not then being cured by a Junior Lender in accordance with the terms of this Agreement or as to which the cure period available to a Junior Lender hereunder has expired without a cure); (vi) with respect to the Mezzanine 5 Loan and the Mezzanine 5 Loan Documents, any "Event of Default" (as defined therein) thereunder which has occurred and is continuing (i.e., has not been cured by Mezzanine 5 Borrower or waived by Mezzanine 5 Lender (in writing and not through operation of law)

USActive 7415617.4 -9-

and has not otherwise been or is not then being cured by a Junior Lender in accordance with the terms of this Agreement or as to which the cure period available to a Junior Lender hereunder has expired without a cure); (vii) with respect to the Mezzanine 6 Loan and the Mezzanine 6 Loan Documents, any "Event of Default" (as defined therein) thereunder which has occurred and is continuing (i.e., has not been cured by Mezzanine 6 Borrower or waived by Mezzanine 6 Lender (in writing and not through operation of law) and has not otherwise been or is not then being cured by a Junior Lender in accordance with the terms of this Agreement or as to which the cure period available to a Junior Lender hereunder has expired without a cure); (vii) with respect to the Mezzanine 7 Loan and the Mezzanine 7 Loan Documents, any "Event of Default" (as defined therein) thereunder which has occurred and is continuing (i.e., has not been cured by Mezzanine 7 Borrower or waived by Mezzanine 7 Lender (in writing and not through operation of law) and has not otherwise been or is not then being cured by a Junior Lender in accordance with the terms of this Agreement or as to which the cure period available to a Junior Lender hereunder has expired without a cure); (viii) with respect to the Mezzanine 8 Loan and the Mezzanine 8 Loan Documents, any "Event of Default" (as defined therein) thereunder which has occurred and is continuing (i.e., has not been cured by Mezzanine 8 Borrower or waived by Mezzanine 8 Lender (in writing and not through operation of law) and has not otherwise been or is not then being cured by a Junior Lender in accordance with the terms of this Agreement or as to which the cure period available to a Junior Lender hereunder has expired without a cure); (ix) with respect to the Mezzanine 9 Loan and the Mezzanine 9 Loan Documents, any "Event of Default" (as defined therein) thereunder which has occurred and is continuing (i.e., has not been cured by Mezzanine 9 Borrower or waived by Mezzanine 9 Lender (in writing and not through operation of law) and has not otherwise been or is not then being cured by a Junior Lender in accordance with the terms of this Agreement or as to which the cure period available to a Junior Lender hereunder has expired without a cure); (x) with respect to the Mezzanine 10 Loan and the Mezzanine 10 Loan Documents, any "Event of Default" (as defined therein) thereunder which has occurred and is continuing (i.e., has not been cured by Mezzanine 10 Borrower or waived by Mezzanine 10 Lender (in writing and not through operation of law) and has not otherwise been or is not then being cured by a Junior Lender in accordance with the terms of this Agreement or as to which the cure period available to a Junior Lender hereunder has expired without a cure); and (xi) with respect to the Mezzanine 11 Loan and the Mezzanine 11 Loan Documents, any "Event of Default" (as defined therein) thereunder which has occurred and is continuing (i.e., has not been cured by Mezzanine 11 Borrower or waived by Mezzanine 11 Lender (in writing and not through operation of law) and has not otherwise been or is not then being cured by a Junior Lender in accordance with the terms of this Agreement or as to which the cure period available to a Junior Lender hereunder has expired without a cure).

"Extended Monetary Cure Period" has the meaning set forth in Section 12(a)(i) hereof.

"Extended Non-Monetary Cure Period" has the meaning set forth in Section 12(a)(ii) hereof. USActive 7415617.4 -10-

"Fitch" means Fitch, Inc., and its successors in interest.

"Gramercy" means Gramercy Warehouse Funding I LLC, a Delaware limited liability company.

"Guarantor" has the meaning provided in Section 6(b) hereof.

"Guaranty Claim" has the meaning provided in Section 6(b)

hereof.

"Initial Intercreditor Agreement" has the meaning provided in the Recitals hereto.

"Initial Junior Loan Non-Monetary Cure Period" has the meaning provided in Section 12(b)(ii).

"Initial Mezzanine II Lender" has the meaning provided in the Recitals hereto.

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

"Junior Borrower" means, collectively, Mezzanine 1 Borrower, Mezzanine 2 Borrower, Mezzanine 3 Borrower, Mezzanine 4 Borrower, Mezzanine 5 Borrower, Mezzanine 6 Borrower, Mezzanine 7 Borrower, Mezzanine 8 Borrower, Mezzanine 9 Borrower, Mezzanine 10 Borrower, and Mezzanine 11 Borrower, unless the context otherwise requires, in which case it shall mean either Mezzanine 1 Borrower, Mezzanine 2 Borrower, Mezzanine 3 Borrower, Mezzanine 4 Borrower, Mezzanine 5 Borrower, Mezzanine 6 Borrower, Mezzanine 7 Borrower, Mezzanine 8 Borrower, Mezzanine 9 Borrower, Mezzanine 10 Borrower, or Mezzanine 11 Borrower, individually.

"Junior Borrower Group" has the meaning provided in Section 11(d)(iv) hereof

"Junior Lender" means, collectively, Mezzanine 1 Lender, Mezzanine 2 Lender, Mezzanine 3 Lender, Mezzanine 4 Lender, Mezzanine 5 Lender, Mezzanine 6 Lender Mezzanine 7 Lender, Mezzanine 8 Lender, Mezzanine 9 Lender, Mezzanine 10 Lender, and Mezzanine 11 Lender, unless the context otherwise requires, in which case it shall mean either Mezzanine 1 Lender, Mezzanine 2 Lender, Mezzanine 3 Lender, Mezzanine 4 Lender, Mezzanine 5 Lender, Mezzanine 6 Lender, Mezzanine 7 Lender, Mezzanine 8 Lender, Mezzanine 9 Lender, Mezzanine 10 Lender, or Mezzanine 11 Lender, individually. As the context requires, Junior Lenders shall have the following order of priority: (i) first, Mezzanine 1 Lender; (ii) second, Mezzanine 2 Lender; (iii) third, Mezzanine 3 Lender; (iv) fourth, Mezzanine 4 Lender, (v) fifth, Mezzanine 5 Lender, (vi) sixth, Mezzanine 6 Lender, (vii) seventh, Mezzanine 7 Lender, (viii) eighth, Mezzanine 8 Lender, (ix) ninth, Mezzanine 9 Lender, (x) tenth, Mezzanine 10 Lender, and/or (xi) eleventh, Mezzanine 11 Lender.

"Junior Loan" means, collectively, Mezzanine 1 Loan, Mezzanine 2 Loan, Mezzanine 3 Loan, Mezzanine 4 Loan, Mezzanine 5 Loan, Mezzanine 6 Loan Mezzanine 7 Loan, Mezzanine 8 Loan, Mezzanine 9 Loan, Mezzanine 10 Loan, and Mezzanine 11, unless the context otherwise requires, in which case it shall mean either Mezzanine 1 Loan, Mezzanine 2 Loan, Mezzanine 3 Loan, Mezzanine 4 Loan, Mezzanine 5

USActive 7415617.4

Loan, Mezzanine 6 Loan Mezzanine 7 Loan, Mezzanine 8 Loan, Mezzanine 9 Loan, Mezzanine 10 Loan, or Mezzanine 11 Loan, individually.

"Junior Loan Agreement" means, collectively, the Mezzanine 1 Loan Agreement, the Mezzanine 2 Loan Agreement, the Mezzanine 3 Loan Agreement, the Mezzanine 4 Loan Agreement, the Mezzanine 5 Loan Agreement, the Mezzanine 6 Loan

Agreement, the Mezzanine 7 Loan Agreement, the Mezzanine 8 Loan Agreement, the Mezzanine 9 Loan Agreement, the Mezzanine 10 Loan Agreement, and the Mezzanine 11 Loan Agreement, unless the context otherwise requires, in which case it shall mean either the Mezzanine 1 Loan Agreement, the Mezzanine 2 Loan Agreement, the Mezzanine 3 Loan Agreement, the Mezzanine 4 Loan Agreement, the Mezzanine 5 Loan Agreement, the Mezzanine 6 Loan Agreement, the Mezzanine 7 Loan Agreement, the Mezzanine 8 Loan Agreement, the Mezzanine 9 Loan Agreement, the Mezzanine 10 Loan Agreement, or the Mezzanine 11 Loan Agreement, individually.

"Junior Loan Cash Management Agreement" means, collectively, the Mezzanine 1 Cash Management Agreement, the Mezzanine 2 Cash Management Agreement, the Mezzanine 3 Cash Management Agreement, the Mezzanine 4 Cash Management Agreement, the Mezzanine 5 Cash Management Agreement, the Mezzanine 6 Cash Management Agreement, the Mezzanine 7 Cash Management Agreement, the Mezzanine 8 Cash Management Agreement, the Mezzanine 9 Cash Management Agreement, the Mezzanine 10 Cash Management Agreement, and the Mezzanine 11 Cash Management Agreement, unless the context otherwise requires, in which case it shall mean either the Mezzanine 1 Cash Management Agreement, the Mezzanine 2 Cash Management Agreement, the Mezzanine 3 Cash Management Agreement, the Mezzanine 4 Cash Management Agreement, the Mezzanine 5 Cash Management Agreement, the Mezzanine 6 Cash Management Agreement, the Mezzanine 7 Cash Management Agreement, the Mezzanine 8 Cash Management Agreement, the Mezzanine 9 Cash Management Agreement, the Mezzanine 10 Cash Management Agreement, or the Mezzanine 11 Cash Management Agreement, individually.

"Junior Loan Default Notice" has the meaning provided in Section 12(b) hereof.

"Junior Loan Documents" means, collectively, the Mezzanine 1 Loan Documents, the Mezzanine 2 Loan Documents, the Mezzanine 3 Loan Documents, the Mezzanine 4 Loan Documents, the Mezzanine 5 Loan Documents, the Mezzanine 6 Loan Documents, the Mezzanine 7 Loan Documents, the Mezzanine 8 Loan Documents, the Mezzanine 9 Loan Documents, the Mezzanine 10 Loan Documents, and the Mezzanine 11 Loan Documents, unless the context otherwise requires, in which case it shall mean either the Mezzanine 1 Loan Documents, the Mezzanine 2 Loan Documents, the Mezzanine 3 Loan Documents, the Mezzanine 4 Loan Documents, the Mezzanine 5 Loan Documents, the Mezzanine 6 Loan Documents, the Mezzanine 7 Loan Documents, the Mezzanine 8 Loan Documents, the Mezzanine 9 Loan Documents, the Mezzanine 10 Loan Documents, or the Mezzanine 11 Loan Documents, individually.

"Junior Loan Extended Monetary Cure Period" has the meaning provided in Section 12(b)(i) hereof.

"Junior Loan Extended Non-Monetary Cure Period" has the meaning provided in Section 12(b)(ii) hereof.

"Junior Loan Liabilities" means, collectively, the Mezzanine 1 Loan USActive 7415617.4 -12-

Liabilities, the Mezzanine 2 Loan Liabilities, the Mezzanine 3 Loan Liabilities, the Mezzanine 4 Loan Liabilities, the Mezzanine 5 Loan Liabilities, the Mezzanine 6 Loan Liabilities, the Mezzanine 7

Loan Liabilities, the Mezzanine 8 Loan Liabilities, the Mezzanine 9 Loan Liabilities, the Mezzanine 10 Loan Liabilities, and the Mezzanine 11 Loan Liabilities, unless the context otherwise requires, in which case it shall mean either the Mezzanine 1 Loan Liabilities, the Mezzanine 2 Loan Liabilities, the Mezzanine 3 Loan Liabilities, the Mezzanine 4 Loan Liabilities, the Mezzanine 5 Loan Liabilities, the Mezzanine 6 Loan Liabilities, the Mezzanine 7 Loan Liabilities, the Mezzanine 8 Loan Liabilities, the Mezzanine 9 Loan Liabilities, the Mezzanine 10 Loan Liabilities, or the Mezzanine 11 Loan Liabilities, individually.

"Junior Loan Modification" has the meaning provided in Section 8@_) hereof

"Junior Loan Monetary Cure Period" has the meaning provided in Section 12(b)(i) hereof.

"Junior Loan Non-Monetary Cure Period" has the meaning provided in Section 12(b)(ii) hereof

"Junior Loan Purchase Option Event" has the meaning provided in Section 14(c) hereof

"Junior Note" means, collectively, the Mezzanine 1 Note, the Mezzanine 2 Note, the Mezzanine 3 Note, the Mezzanine 4 Note, the Mezzanine 5 Note, the Mezzanine 6 Note, the Mezzanine 7 Note, the Mezzanine 8 Note, the Mezzanine 9 Note, the Mezzanine 10 Note, and the Mezzanine 11 Note, unless the context otherwise requires, in which case it shall mean either the Mezzanine 1 Note, the Mezzanine 2 Note, the Mezzanine 3 Note, the Mezzanine 4 Note, the Mezzanine 5 Note, the Mezzanine 6 Note, the Mezzanine 7 Note, the Mezzanine 8 Note, the Mezzanine 9 Note, the Mezzanine 10 Note, or the Mezzanine 11 Note, individually.

"Junior Purchase Notice" has the meaning provided in Section 14(c)

hereof. "Loan Pledgee" has the meaning set forth in Section 16(a)

hereof "Loan Purchase Price" has the meaning set forth in Section 14(a)

hereof.

"Merrill" means Merrill Lynch Mortgage Lending, Inc., a Delaware corporation, and its successors in interest.

"Mezzanine 1 Borrower" has the meaning set forth on Schedule 1 attached hereto.

"Mezzanine 1 Cash Management Agreement" means the Deposit Account Agreement (as defined in the Mezzanine 1 Loan Agreement).

USActive 7415617.4 -13-

"Mezzanine 1 Lender" has the meaning set forth in the Recitals hereto.

"Mezzanine 1 Loan" has the meaning set forth in the Recitals

hereto. "Mezzanine 1 Loan Agreement" has the meaning set forth in the

Recitals hereto.

"Mezzanine 1 Loan Documents" has the meaning set forth in the Recitals hereto.

"Mezzanine 1 Loan Liabilities" means, collectively, all of the indebtedness, liabilities and obligations of Mezzanine 1 Borrower under any Mezzanine 1 Loan Document, including, without limitation (i) the principal amount of, and accrued interest on (including, without limitation, any interest which accrues after the commencement of any case, proceeding or other action relating to the bankruptcy, insolvency or reorganization of Mezzanine 1 Borrower, whether or not such interest would be allowed in such case, proceeding or action), the Mezzanine 1 Loan, (ii) all other indebtedness, obligations and liabilities of Mezzanine 1 Borrower to Mezzanine 1 Lender now existing or hereafter incurred or created under the Mezzanine 1 Loan Documents, and (iii) all other indebtedness, obligations and liabilities of Mezzanine 1 Borrower to Mezzanine 1 Lender now existing or hereafter incurred, created and arising from or relating to the Mezzanine 1 Loan, including, without limitation, any late charges, default interest, prepayment fees or premiums (including spread maintenance and yield maintenance premiums), exit fees, advances and post petition interest.

"Mezzanine 1 Note" has the meaning set forth in the Recitals hereto.

"Mezzanine 1 Pledge Agreement" has the meaning set forth in the Recitals hereto.




"Mezzanine 2 Loan" has the meaning set forth in the Recitals hereto.

"Mezzanine 2 Loan Agreement" has the meaning set forth in the Recitals

hereto.


"Mezzanine 2 Loan Liabilities" means, collectively, all of the indebtedness, liabilities and obligations of Mezzanine 2 Borrower under any Mezzanine 2 Loan Document, including, without limitation (i) the principal amount of, and accrued interest on (including, without limitation, any interest which accrues after the commencement of any case, proceeding or other action relating to the bankruptcy, insolvency or reorganization of Mezzanine 2 Borrower, whether or not such interest would be allowed

USActive 7415617.4 -14-

in such case, proceeding or action), the Mezzanine 2 Loan, (ii) all other indebtedness, obligations and liabilities of Mezzanine 2 Borrower to Mezzanine 2 Lender now existing or hereafter incurred or created under the Mezzanine 2 Loan Documents, and (iii) all other indebtedness, obligations and liabilities of Mezzanine 2 Borrower to Mezzanine 2 Lender now existing or hereafter incurred, created and arising from or relating to the Mezzanine 2 Loan, including, without limitation, any late charges,

default interest, prepayment fees or premiums (including spread maintenance and yield maintenance premiums), exit fees, advances and post petition interest.








hereto.





"Mezzanine 4 Borrower" has the meaning set forth on Schedule 1 attached

USActive 7415617.4 -15-

hereto.





hereto.










Recitals hereto.

"Mezzanine 5 Loan Documents" has the meaning set forth in the Recitals

USActive 7415617.4 -16-

hereto.

"Mezzanine 5 Loan Liabilities" means, collectively, all of the indebtedness, liabilities and obligations of Mezzanine 5 Borrower under any Mezzanine 5 Loan Document, including, without limitation (i) the principal amount of, and accrued interest on (including, without limitation, any interest which accrues after the commencement of any case, proceeding or other action relating to the bankruptcy, insolvency or reorganization of Mezzanine 5

Borrower, whether or not such interest would be allowed in such case, proceeding or action), the Mezzanine 5 Loan, (ii) all other indebtedness, obligations and liabilities of Mezzanine 5 Borrower to Mezzanine 5 Lender now existing or hereafter incurred or created under the Mezzanine 5 Loan Documents, and (iii) all other indebtedness, obligations and liabilities of Mezzanine 5 Borrower to Mezzanine 5 Lender now existing or hereafter incurred, created and arising from or relating to the Mezzanine 5 Loan, including, without limitation, any late charges, default interest, prepayment fees or premiums (including spread maintenance and yield maintenance premiums), exit fees, advances and post petition interest.



"Mezzanine 6 Borrower" has the meaning set forth on Schedule I attached hereto.





hereto.


"Mezzanine 6 Loan Liabilities" means, collectively, all of the indebtedness, liabilities and obligations of Mezzanine 6 Borrower under any Mezzanine 6 Loan Document, including, without limitation (i) the principal amount of, and accrued interest on (including, without limitation, any interest which accrues after the commencement of any case, proceeding or other action relating to the bankruptcy, insolvency or reorganization of Mezzanine 6 Borrower, whether or not such interest would be allowed in such case, proceeding or action), the Mezzanine 6 Loan, (ii) all other indebtedness, obligations and liabilities of Mezzanine 6 Borrower to Mezzanine 6 Lender now existing or hereafter incurred or created under the Mezzanine 6 Loan Documents, and (iii) all other indebtedness, obligations and liabilities of Mezzanine 6 Borrower to Mezzanine 6 Lender now existing or hereafter incurred, created and arising from or relating to the Mezzanine 6 Loan, including, without limitation, any late charges, default interest, prepayment fees or premiums (including spread maintenance and yield maintenance premiums), exit fees, advances and post petition interest. USActive 7415617.4 -17-






hereto.








USActive 7415617.4 -18-



Recitals hereto.


"Mezzanine 8 Loan Liabilities" means, collectively, all of the indebtedness, liabilities and obligations of Mezzanine 8 Borrower under any Mezzanine 8 Loan Document, including, without limitation (i) the principal amount of, and accrued interest on (including, without limitation, any interest which accrues after the commencement of any case, proceeding or other action relating to the bankruptcy, insolvency or reorganization of Mezzanine 8 Borrower, whether or not such interest would be allowed in such case, proceeding or action), the Mezzanine 8 Loan, (ii) all other indebtedness, obligations and liabilities of Mezzanine 8 Borrower to Mezzanine 8 Lender now existing or hereafter incurred or created under the Mezzanine 8 Loan Documents, and (iii) all other indebtedness, obligations and liabilities of Mezzanine 8 Borrower to Mezzanine 8 Lender now existing or hereafter incurred, created and arising from or relating to the

Mezzanine 8 Loan, including, without limitation, any late charges, default interest, prepayment fees or premiums (including spread maintenance and yield maintenance premiums), exit fees, advances and post petition interest.



"Mezzanine 9 Borrower" has the meaning set forth on Schedule I attached hereto.





hereto.


"Mezzanine 9 Loan Liabilities" means, collectively, all of the indebtedness, liabilities and obligations of Mezzanine 9 Borrower under any Mezzanine 9 Loan Document, including, without limitation (i) the principal amount of, and accrued interest on (including, without limitation, any interest which accrues after the commencement of any case, proceeding or other action relating to the bankruptcy, insolvency or reorganization of Mezzanine 9 Borrower, whether or not such interest would be allowed in such case, proceeding or action), the Mezzanine 9 Loan, (ii) all other indebtedness, obligations and liabilities of Mezzanine 9 Borrower to Mezzanine 9 Lender now existing or hereafter incurred or created under the Mezzanine 9 Loan Documents, and (iii) USActive 7415617.4 -19-

all other indebtedness, obligations and liabilities of Mezzanine 9 Borrower to Mezzanine 9 Lender now existing or hereafter incurred, created and arising from or relating to the Mezzanine 9 Loan, including, without limitation, any late charges, default interest, prepayment fees or premiums (including spread maintenance and yield maintenance premiums), exit fees, advances and post petition interest.





"Mezzanine 10 Lender" has the meaning set forth in the Recitals

hereto. "Mezzanine 10 Loan" has the meaning set forth in the Recitals

hereto.

"Mezzanine 10 Loan Agreement" has the meaning set forth in the Recitals hereto.


"Mezzanine 10 Loan Liabilities" means, collectively, all of the indebtedness, liabilities and obligations of Mezzanine 10 Borrower under any Mezzanine 10 Loan Document, including, without limitation (i) the principal amount of, and accrued interest on (including, without limitation, any interest which accrues after the commencement of any case, proceeding or other action relating to the bankruptcy, insolvency or reorganization of Mezzanine 10 Borrower, whether or not such interest would be allowed in such case, proceeding or action), the Mezzanine 10 Loan, (ii) all other indebtedness, obligations and liabilities of Mezzanine 10 Borrower to Mezzanine 10 Lender now existing or hereafter incurred or created under the Mezzanine 10 Loan Documents, and (iii) all other indebtedness, obligations and liabilities of Mezzanine 10 Borrower to Mezzanine 10 Lender now existing or hereafter incurred, created and arising from or relating to the Mezzanine 10 Loan, including, without limitation, any late charges,

default interest, prepayment fees or premiums (including spread maintenance and yield maintenance premiums), exit fees, advances and post petition interest.


"Mezzanine 10 Pledge Agreement" has the meaning set forth in the Recitals

"Mezzanine 11 Borrower" has the meaning set forth on Schedule 1 attached

"Mezzanine 11 Cash Management Agreement" means the Deposit Account •USActive 7415617.4 -20-

hereto

hereto

Agreement (as defined in the Mezzanine 11 Loan Agreement).



"Mezzanine 11 Loan Agreement" has the meaning set forth in the Recitals hereto.





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

"Moody's" means Moody's Investor Service, Inc., and its successors in

interest. "Mortgage" has the meaning set forth in the Recitals hereto.

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

"Optioned Junior Lender" has the meaning provided in Section 14(c)

hereof. "Optioned Junior Loan" has the meaning provided in Section 14(c)

hereof.

USActive 7415617.4 -21-

"Permitted Fund Manager" means any Person that on the date of determination is not subject to a Proceeding and is either (i) one of the entities listed on Exhibit N or any other nationally-recognized manager of investment funds investing in debt or equity interests relating to commercial real estate, (ii) an entity that is a Qualified Transferee pursuant to clauses (v)(A),

(B), (C), (D) or (G) of the definition thereof or (iii) any Junior Lender in each case, which are investing through a fund with or has committed capital of at least $250,000,000.

"Permitted Investment Fund" has the meaning set forth in the definition of Qualified Transferee.

"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 and any fiduciary acting in such capacity on behalf of any of the foregoing.

"Pledge" has the meaning set forth in Section 16(a) hereof.

"Pledge Agreement" means, collectively, the Mezzanine 1 Pledge Agreement, the Mezzanine 2 Pledge Agreement, the Mezzanine 3 Pledge Agreement, the Mezzanine 4 Pledge Agreement, the Mezzanine 5 Pledge Agreement, the Mezzanine 6 Pledge Agreement, the Mezzanine 7 Pledge Agreement, the Mezzanine 8 Pledge Agreement, the Mezzanine 9 Pledge Agreement, the Mezzanine 10 Pledge Agreement, and the Mezzanine 11 Pledge Agreement, unless the context otherwise requires, in which case it shall mean either the Mezzanine 1 Pledge Agreement, the Mezzanine 2 Pledge Agreement, the Mezzanine 3 Pledge Agreement, the Mezzanine 4 Pledge Agreement, the Mezzanine 5 Pledge Agreement, the Mezzanine 6 Pledge Agreement, the Mezzanine 7 Pledge Agreement, the Mezzanine 8 Pledge Agreement, the Mezzanine 9 Pledge Agreement, the Mezzanine 10 Pledge Agreement, or the Mezzanine 11 Pledge Agreement, individually.

"Policies" has the meaning provided in Section 10(f) hereof.

"Premises" has the meaning set forth in the Recitals hereto.

"Proceeding" has the meaning set forth in Section 11(d)(i)

hereof.

"Property Manager" shall mean the Person (as defined in the Senior Loan Agreement), other than Borrower, which manages the Premises on behalf of Borrower.

"Protective Advances" means all sums advanced for the purpose of payment of real estate taxes (including special assessments or payments in lieu of real estate taxes), maintenance costs, insurance premiums, ground rents or other items (including capital expenses and leasing costs such as (without limitation) leasing commissions and tenant improvement allowances) reasonably necessary to protect any of the Premises or the Separate Collateral, respectively, or any portion thereof (including, but not limited to, all reasonable attorneys' fees, costs relating to the entry upon the Premises or any portion thereof to make repairs and the payment, purchase, contest or compromise of any USActive 7415617.4 -22-

encumbrance, charge or lien which in the judgment of Senior Lender or the applicable Senior Junior Lender appears to be prior or superior to the Senior Loan Documents or the applicable Senior Junior Loan Documents) or the Separate Collateral or any portion thereof, respectively, from forfeiture, casualty, loss or waste or to protect, preserve or defend the lien of the Senior Loan Documents or any of the Junior Loan

Documents, as applicable, including, with respect to a Junior Loan, amounts advanced by a junior Lender to effect a cure in accordance with Section 12 hereof.

"Purchase Notice "has the meaning set forth in Section 14(a) hereof.

"Purchase Option Event" has the meaning set forth in Section 14(a)

hereof.

"Qualified Manager" shall mean (i) Tishman Speyer Properties, L.P., Blackrock Financial Management, or Rose Associates, (ii) a management company that is an Affiliate of any of the Persons named in clause (i), provided that the majority of the legal and beneficial interest of such management company is owned directly or indirectly by such Person or its respective Affiliates, provided that Borrower shall deliver to Senior Lender an Additional Insolvency Opinion reasonably acceptable to Senior Lender and the Rating Agencies; or (iv) a reputable and experienced management organization employing the standard of business operations, practices and procedures customarily employed by entities having a senior executive with at least seven (7) years' experience in the management of apartment buildings and complexes and which manage not less than fifty (50) apartment buildings or complexes having an aggregate number of not less than five thousand (5000) rental units (exclusive of the Premises), provided, that, with respect to this clause (iv) only, Borrower shall have obtained a Rating Agency Confirmation.

"Qualified Transferee" means (i) Merrill Lynch or an Affiliate of Merrill Lynch, (ii) Wachovia or an Affiliate of Wachovia, (iii) SL Green and any entity Controlling, Controlled by, or under common Control with SL Green; (iv) Gramercy and any entity Controlling, Controlled by, or under common Control with Gramercy; or (v) one or more of the following:


(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 clause (v)(A), (v)(B) or (v)(F) that satisfies the Eligibility Requirements;

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

(E) a Qualified Trustee in connection with (aa) a securitization of, (bb) the creation of collateralized debt obligations ("CDO") secured by, or (cc) a financing through an "owner trust" of, a Junior 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 the Junior Loan or any interest therein to such Securitization Vehicle (except that if one or more classes of securities issued in connection with a Securitization is rated by Moody's, the transferee may not rely on this clause (1) with respect to Moody's); (2) in the case of a Securitization Vehicle that is not a CDO, the special servicer of such Securitization Vehicle has the Required Special Servicer Rating at the time of Transfer and the related transaction documents for such Securitization Vehicle require that any successor have a has the Required Special Servicer Rating (such entity, an "Approved Servicer") and such Approved Servicer is required to service and administer such Junior Loan or any interest therein 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 CDO Asset Manager which is a Qualified Transferee, are each Qualified Transferees under clauses (v)(A), (B), (C), (ID), (F) or (G) of this definition;

(F) an investment fund, limited liability company, limited partnership or general partnership (a "Permitted Investment Fund") where a Permitted Fund Manager acts as the general partner, managing member or fund manager and at least fifty percent (50%) of the equity interests in such investment vehicle are owned, directly or indirectly, by one or more of the following: a Qualified Transferee, an institutional "accredited investor", within the meaning of Regulation D promulgated under the Securities Act of 1933, as amended, and/or a "qualified institutional buyer" or both within the meaning of Rule 144A promulgated under the Securities Exchange Act of 1934, as amended, provided such institutional "accredited investors" or "qualified institutional buyers" that are used to satisfy the 50% test set forth above in this clause (F) satisfy the financial tests in clause (i) of the definition of Eligibility Requirements; or

(G) any Person for which the Rating Agencies have issued a Rating Agency Confirmation with respect to such Transfer.

"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

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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 (2) rating categories of S&P and either

Fitch or Moody's (provided, however, if the Senior Loan has been securitized, the rating requirement of any agency not a Rating Agency will be disregarded).

"Rating Agencies" shall mean, prior to the final Securitization of the Senior Loan, collectively, S&P, Moody's and Fitch, and any other nationally-recognized statistical rating agency which has been designated by Senior Lender and, after the Securitization of the Senior Loan, shall mean any of the foregoing that have rated any of the Certificates.

"Rating Agency Confirmation" means a written affirmation from each of the Rating Agencies that the credit rating of the Certificates assigned by such Rating Agency immediately prior to the occurrence of the event with respect to which such Rating Agency Confirmation is sought will not be qualified, downgraded or withdrawn as a result of the occurrence of such event. 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 instead require the consent of Senior Lender, which consent shall not be unreasonably withheld or delayed. All fees and expenses of the Rating Agencies incurred in connection with any Rating Agency Confirmation required pursuant to this Agreement as the result of a request or action of a Junior Lender shall be paid by such Junior Lender.

"Redirection Notice" has the meaning set forth in Section 16(a)

hereof. "Repo Agreement" has the meaning set forth in Section

16(a) hereof

"Required Special Servicer Rating" means a special servicer that (i) has a rating of "CSS3" in the case of Fitch, (ii) is on S&P's Select Servicer List as a US 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 for a loan 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. The requirement of any agency not a Rating Agency shall be disregarded.

"Resized Components" has the meaning set forth in Section 15(p)

hereof "Resizing Date" has the meaning set forth in Section 15(p) hereof.

"Resizing Notice" has the meaning set forth in Section 15(p) hereof.

"S&P" means Standard & Poor's Ratings Services, a division of The McGraw-Hill Companies, Inc., and its successors in interest. USActive 7415617.4 -25-

"Securitization" has the meaning set forth in the Senior Loan Agreement.

"Securitization Vehicle" has the meaning set forth in the definition of Qualified Transferee.

"Senior Junior Borrowers" means (i) with respect to the Mezzanine 1 Loan, none of the other Junior Borrowers; (ii) with respect to the Mezzanine 2 Loan, Mezzanine 1 Borrower; (iii) with respect to the Mezzanine 3 Loan, the Mezzanine 1 Borrower and the Mezzanine 2 Borrower; (iv) with respect to the Mezzanine 4 Loan, the Mezzanine 1 Borrower, the Mezzanine 2 Borrower, and the Mezzanine 3 Borrower; (v) with respect to the Mezzanine 5 Loan, the Mezzanine 1 Borrower, the Mezzanine 2 Borrower, the Mezzanine 3 Borrower and the Mezzanine 4 Borrower; (vi) with respect to the Mezzanine 6 Loan, the Mezzanine 1 Borrower, the Mezzanine 2 Borrower, the Mezzanine 3 Borrower, the Mezzanine 4 Borrower and the Mezzanine 5 Borrower; (vii) with respect to the Mezzanine 7 Loan, the Mezzanine 1 Borrower, the Mezzanine 2 Borrower, the Mezzanine 3 Borrower, the Mezzanine 4 Borrower, the Mezzanine 5 Borrower and the Mezzanine 6 Borrower; (viii) with respect to the Mezzanine 8 Loan, the Mezzanine 1 Borrower, the Mezzanine 2 Borrower, the Mezzanine 3 Borrower, the Mezzanine 4 Borrower, the Mezzanine 5 Borrower, the Mezzanine 6 Borrower and the Mezzanine 7 Borrower; (ix) with respect to the Mezzanine 9 Loan, the Mezzanine 1 Borrower, the Mezzanine 2 Borrower, the Mezzanine 3 Borrower, the Mezzanine 4 Borrower, the Mezzanine 5 Borrower, the Mezzanine 6 Borrower, the Mezzanine 7 Borrower and the Mezzanine 8 Borrower; (x) with respect to the Mezzanine 10 Loan, the Mezzanine 1 Borrower, the Mezzanine 2 Borrower, the Mezzanine 3 Borrower, the Mezzanine 4 Borrower, the Mezzanine 5 Borrower, the Mezzanine 6 Borrower, the Mezzanine 7 Borrower, the Mezzanine 8 Borrower and the Mezzanine 9 Borrower; and (xi) with respect to the Mezzanine 11 Loan, the Mezzanine 1 Borrower, the Mezzanine 2 Borrower, the Mezzanine 3 Borrower, the Mezzanine 4 Borrower, the Mezzanine 5 Borrower, the Mezzanine 6 Borrower, the Mezzanine 7 Borrower, the Mezzanine 8 Borrower, the Mezzanine 9 Borrower and the Mezzanine 10 Borrower.

"Senior Junior Lenders" means (i) with respect to the Mezzanine 1 Loan,

none of the other Junior Lenders; (ii) with respect to the Mezzanine 2 Loan, Mezzanine 1 Lender; (iii) with respect to the Mezzanine 3 Loan, the Mezzanine 1 Lender and the Mezzanine 2 Lender; (iv) with respect to the Mezzanine 4 Loan, the Mezzanine 1 Lender, the Mezzanine 2 Lender, and the Mezzanine 3 Lender; (v) with respect to the Mezzanine 5 Loan, the Mezzanine 1 Lender, the Mezzanine 2 Lender, the Mezzanine 3 Lender and the Mezzanine 4 Lender; (vi) with respect to the Mezzanine 6 Loan, the Mezzanine 1 Lender, the Mezzanine 2 Lender, the Mezzanine 3 Lender, the Mezzanine 4 Lender and the Mezzanine 5 Lender; (vii) with respect to the Mezzanine 7 Loan, the Mezzanine 1 Lender, the Mezzanine 2 Lender, the Mezzanine 3 Lender, the Mezzanine 4 Lender, the Mezzanine 5 Lender and the Mezzanine 6 Lender; (viii) with respect to the Mezzanine 8 Loan, the Mezzanine 1 Lender, the Mezzanine 2 Lender, the Mezzanine 3 Lender, the Mezzanine 4 Lender, the Mezzanine 5 Lender, the Mezzanine 6 Lender and the Mezzanine 7 Lender; (ix) with respect to the Mezzanine 9 Loan, the Mezzanine 1 Lender, the Mezzanine 2 Lender, the Mezzanine 3 Lender, the Mezzanine 4 Lender, the Mezzanine 5 Lender, the Mezzanine 6 Lender, the Mezzanine 7 Lender and the Mezzanine 8 Lender; (x) with USActive 7415617.4 -26-

respect to the Mezzanine 10 Loan, the Mezzanine 1 Lender, the Mezzanine 2 Lender, the Mezzanine 3 Lender, the Mezzanine 4 Lender, the Mezzanine 5 Lender, the Mezzanine 6 Lender, the Mezzanine 7 Lender, the Mezzanine 8 Lender and the Mezzanine 9 Lender; and (xi) with respect to the Mezzanine 11 Loan, the Mezzanine 1 Lender, the Mezzanine 2 Lender, the Mezzanine 3 Lender, the Mezzanine 4 Lender, the Mezzanine 5 Lender, the Mezzanine 6 Lender, the Mezzanine 7 Lender, the Mezzanine 8 Lender, the Mezzanine 9 Lender and the Mezzanine 10 Lender. As the context requires, Senior Junior Lenders shall have the following order of priority: (i) first, the Mezzanine 1 Lender; (ii) second, the Mezzanine 2

• Lender; (iii) third, the Mezzanine 3 Lender; (iv) fourth, the Mezzanine 4 Lender, (v) fifth, the Mezzanine 5 Lender, (vi) sixth, the Mezzanine 6 Lender, (vii) seventh, the Mezzanine 7 Lender, (viii) eighth, the Mezzanine 8 Lender, (ix) ninth, the Mezzanine 9 Lender, (x) tenth, the Mezzanine 10 Lender, and (xi) eleventh, the Mezzanine 11 Lender.

"Senior Junior Loan Agreements" means (i) with respect to the Mezzanine 1 Loan, none of the other Junior Loan Agreements; (ii) with respect to the Mezzanine 2 Loan, Mezzanine 1 Loan Agreement; (iii) with respect to the Mezzanine 3 Loan, the Mezzanine 1 Loan Agreement and the Mezzanine 2 Loan Agreement; (iv) with respect to the Mezzanine 4 Loan, the Mezzanine 1 Loan Agreement, the Mezzanine 2 Loan Agreement, and the Mezzanine 3 Loan Agreement; (v) with respect to the Mezzanine 5 Loan, the Mezzanine 1 Loan Agreement, the Mezzanine 2 Loan Agreement, the Mezzanine 3 Loan Agreement and the Mezzanine 4 Loan Agreement; (vi) with respect to the Mezzanine 6 Loan, the Mezzanine 1 Loan Agreement, the Mezzanine 2 Loan Agreement, the Mezzanine 3 Loan Agreement, the Mezzanine 4 Loan Agreement and the Mezzanine 5 Loan Agreement; (vii) with respect to the Mezzanine 7 Loan, the Mezzanine 1 Loan Agreement, the Mezzanine 2 Loan Agreement, the Mezzanine 3 Loan Agreement, the Mezzanine 4 Loan Agreement, the Mezzanine 5 Loan Agreement and the Mezzanine 6 Loan Agreement; (viii) with respect to the Mezzanine 8 Loan, the Mezzanine 1 Loan Agreement, the Mezzanine 2 Loan Agreement, the Mezzanine 3 Loan Agreement, the Mezzanine 4 Loan Agreement, the Mezzanine 5 Loan Agreement, the Mezzanine 6 Loan Agreement and the Mezzanine 7 Loan Agreement; (ix) with respect to the Mezzanine 9 Loan, the Mezzanine 1 Loan Agreement, the Mezzanine 2 Loan Agreement, the Mezzanine 3 Loan Agreement, the Mezzanine 4 Loan Agreement, the Mezzanine 5 Loan Agreement, the Mezzanine 6 Loan Agreement, the Mezzanine 7 Loan Agreement and the Mezzanine 8 Loan Agreement; (x) with respect to the Mezzanine 10 Loan, the Mezzanine 1 Loan Agreement, the Mezzanine 2 Loan Agreement, the Mezzanine 3 Loan Agreement, the Mezzanine 4 Loan Agreement, the Mezzanine 5 Loan Agreement, the Mezzanine 6 Loan Agreement, the Mezzanine 7 Loan Agreement, the Mezzanine 8 Loan Agreement and the Mezzanine 9 Loan Agreement; and (xi) with respect to the Mezzanine 11 Loan, the Mezzanine 1 Loan Agreement, the Mezzanine 2 Loan Agreement, the Mezzanine 3 Loan Agreement, the Mezzanine 4 Loan Agreement, the Mezzanine 5 Loan Agreement, the Mezzanine 6 Loan Agreement, the Mezzanine 7 Loan Agreement, the Mezzanine 8 Loan Agreement, the Mezzanine 9 Loan Agreement and the Mezzanine 10 Loan Agreement. As the context requires, Senior Junior Loan Agreements shall have the following order of priority: (i) first, the Mezzanine 1 Loan Agreement; (ii) second, the Mezzanine 2 Loan Agreement; (iii) third, the Mezzanine 3 Loan Agreement; (iv) fourth, the Mezzanine 4 Loan Agreement, (v) fifth, the Mezzanine 5 Loan Agreement, (vi) sixth, the Mezzanine 6 Loan Agreement, (vii) seventh, the Mezzanine 7 Loan Agreement, (viii) eighth, the Mezzanine 8 Loan Agreement, (ix) ninth, the Mezzanine 9 Loan Agreement, (x) tenth, the Mezzanine 10 Loan Agreement, and (xi) eleventh, the Mezzanine 11 Loan Agreement.

"Senior Junior Loan Cash Management Agreements" means (i) with respect to the Mezzanine 1 Loan, none of the other Junior Cash Management Agreements; (ii) with

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respect to the Mezzanine 2 Loan, Mezzanine 1 Cash Management Agreement; (iii) with respect to the Mezzanine 3 Loan, the Mezzanine 1 Cash Management Agreement and the Mezzanine 2 Cash Management Agreement; (iv) with respect to the Mezzanine 4 Loan, the Mezzanine 1 Cash Management Agreement, the Mezzanine 2 Cash Management Agreement, and the Mezzanine 3

Cash Management Agreement; (v) with respect to the Mezzanine 5 Loan, the Mezzanine 1 Cash Management Agreement, the Mezzanine 2 Cash Management Agreement, the Mezzanine 3 Cash Management Agreement and the Mezzanine 4 Cash Management Agreement; (vi) with respect to the Mezzanine 6 Loan, the Mezzanine 1 Cash Management Agreement, the Mezzanine 2 Cash Management Agreement, the Mezzanine 3 Cash Management Agreement, the Mezzanine 4 Cash Management Agreement and the Mezzanine 5 Cash Management Agreement; (vii) with respect to the Mezzanine 7 Loan, the Mezzanine 1 Cash Management Agreement, the Mezzanine 2 Cash Management Agreement, the Mezzanine 3 Cash Management Agreement, the Mezzanine 4 Cash Management Agreement, the Mezzanine 5 Cash Management Agreement and the Mezzanine 6 Cash Management Agreement; (viii) with respect to the Mezzanine 8 Loan, the Mezzanine 1 Cash Management Agreement, the Mezzanine 2 Cash Management Agreement, the Mezzanine 3 Cash Management Agreement, the Mezzanine 4 Cash Management Agreement, the Mezzanine 5 Cash Management Agreement, the Mezzanine 6 Cash Management Agreement and the Mezzanine 7 Cash Management Agreement; (ix) with respect to the Mezzanine 9 Loan, the Mezzanine 1 Cash Management Agreement, the Mezzanine 2 Cash Management Agreement, the Mezzanine 3 Cash Management Agreement, the Mezzanine 4 Cash Management Agreement, the Mezzanine 5 Cash Management Agreement, the Mezzanine 6 Cash Management Agreement, the Mezzanine 7 Cash Management Agreement and the Mezzanine 8 Cash Management Agreement; (x) with respect to the Mezzanine 10 Loan, the Mezzanine 1 Cash Management Agreement, the Mezzanine 2 Cash Management Agreement, the Mezzanine 3 Cash Management Agreement, the Mezzanine 4 Cash Management Agreement, the Mezzanine 5 Cash Management Agreement, the Mezzanine 6 Cash Management Agreement, the Mezzanine 7 Cash Management Agreement, the Mezzanine 8 Cash Management Agreement and the Mezzanine 9 Cash Management Agreement; and (xi) with respect to the Mezzanine 11 Loan, the Mezzanine 1 Cash Management Agreement, the Mezzanine 2 Cash Management Agreement, the Mezzanine 3 Cash Management Agreement, the Mezzanine 4 Cash Management Agreement, the Mezzanine 5 Cash Management Agreement, the Mezzanine 6 Cash Management Agreement, the Mezzanine 7 Cash Management Agreement, the Mezzanine 8 Cash Management Agreement, the Mezzanine 9 Cash Management Agreement and the Mezzanine 10 Cash Management Agreement. As the context requires, Senior Junior Cash Management Agreements shall have the following order of priority: (i) first, the Mezzanine 1 Cash Management Agreement; (ii) second, the Mezzanine 2 Cash Management Agreement; (iii) third, the Mezzanine 3 Cash Management Agreement; (iv) fourth, the Mezzanine 4 Cash Management Agreement, (v) fifth, the Mezzanine 5 Cash Management Agreement, (vi) sixth, the Mezzanine 6 Cash Management Agreement, (vii) seventh, the Mezzanine 7 Cash Management Agreement, (viii) eighth, the Mezzanine 8 Cash Management Agreement, (ix) ninth, the Mezzanine 9 Cash Management Agreement, (x) tenth, the Mezzanine 10 Cash Management Agreement, and (xi) eleventh, the Mezzanine 11 Cash Management Agreement.

"Senior Junior Loan Documents" means (i) with respect to the Mezzanine 1 Loan, none of the other Junior Loan Documents; (ii) with respect to the Mezzanine 2 Loan, Mezzanine 1 Loan Documents; (iii) with respect to the Mezzanine 3 Loan, the USActive 7415617.4 -28-

Mezzanine 1 Loan Documents and the Mezzanine 2 Loan Documents; (iv) with respect to the Mezzanine 4 Loan, the Mezzanine 1 Loan Documents, the Mezzanine 2 Loan Documents, and the Mezzanine 3 Loan Documents; (v) with respect to the Mezzanine 5 Loan, the Mezzanine 1 Loan Documents, the Mezzanine 2 Loan Documents, the Mezzanine 3 Loan Documents and the Mezzanine 4 Loan Documents; (vi) with respect to the Mezzanine 6 Loan, the Mezzanine 1 Loan Documents, the

Mezzanine 2 Loan Documents, the Mezzanine 3 Loan Documents, the Mezzanine 4 Loan Documents and the Mezzanine 5 Loan Documents; (vii) with respect to the Mezzanine 7 Loan, the Mezzanine 1 Loan Documents, the Mezzanine 2 Loan Documents, the Mezzanine 3 Loan Documents, the Mezzanine 4 Loan Documents, the Mezzanine 5 Loan Documents and the Mezzanine 6 Loan Documents; (viii) with respect to the Mezzanine 8 Loan, the Mezzanine 1 Loan Documents, the Mezzanine 2 Loan Documents, the Mezzanine 3 Loan Documents, the Mezzanine 4 Loan Documents, the Mezzanine 5 Loan Documents, the Mezzanine 6 Loan Documents and the Mezzanine 7 Loan Documents; (ix) with respect to the Mezzanine 9 Loan, the Mezzanine 1 Loan Documents, the Mezzanine 2 Loan Documents, the Mezzanine 3 Loan Documents, the Mezzanine 4 Loan Documents, the Mezzanine 5 Loan Documents, the Mezzanine 6 Loan Documents, the Mezzanine 7 Loan Documents and the Mezzanine 8 Loan Documents; (x) with respect to the Mezzanine 10 Loan, the Mezzanine 1 Loan Documents, the Mezzanine 2 Loan Documents, the Mezzanine 3 Loan Documents, the Mezzanine 4 Loan Documents, the Mezzanine 5 Loan Documents, the Mezzanine 6 Loan Documents, the Mezzanine 7 Loan Documents, the Mezzanine 8 Loan Documents and the Mezzanine 9 Loan Documents; and (xi) with respect to the Mezzanine 11 Loan, the Mezzanine 1 Loan Documents, the Mezzanine 2 Loan Documents, the Mezzanine 3 Loan Documents, the Mezzanine 4 Loan Documents, the Mezzanine 5 Loan Documents, the Mezzanine 6 Loan Documents, the Mezzanine 7 Loan Documents, the Mezzanine 8 Loan Documents, the Mezzanine 9 Loan Documents and the Mezzanine 10 Loan Documents. As the context requires, Senior Junior Loan Documents shall have the following order of priority: (i) first, the Mezzanine 1 Loan Documents; (ii) second, the Mezzanine 2 Loan Documents; (iii) third, the Mezzanine 3 Loan Documents; (iv) fourth, the Mezzanine 4 Loan Documents, (v) fifth, the Mezzanine 5 Loan Documents, (vi) sixth, the Mezzanine 6 Loan Documents, (vii) seventh, the Mezzanine 7 Loan Documents, (viii) eighth, the Mezzanine 8 Loan Documents, (ix) ninth, the Mezzanine 9 Loan Documents, (x) tenth, the Mezzanine 10 Loan Documents, and (xi) eleventh, the Mezzanine 11 Loan Documents.

"Senior Junior Loan Liabilities" means (i) with respect to the Mezzanine 1 Loan, none of the other Junior Loan Liabilities; (ii) with respect to the Mezzanine 2 Loan, Mezzanine 1 Loan Liabilities; (iii) with respect to the Mezzanine 3 Loan, the Mezzanine 1 Loan Liabilities and the Mezzanine 2 Loan Liabilities; (iv) with respect to the Mezzanine 4 Loan, the Mezzanine 1 Loan Liabilities, the Mezzanine 2 Loan Liabilities, and the Mezzanine 3 Loan Liabilities; (v) with respect to the Mezzanine 5 Loan, the Mezzanine 1 Loan Liabilities, the Mezzanine 2 Loan Liabilities, the Mezzanine 3 Loan Liabilities and the Mezzanine 4 Loan Liabilities; (vi) with respect to the Mezzanine 6 Loan, the Mezzanine 1 Loan Liabilities, the Mezzanine 2 Loan Liabilities, the Mezzanine 3 Loan Liabilities, the Mezzanine 4 Loan Liabilities and the Mezzanine 5 Loan Liabilities; (vii) with respect to the Mezzanine 7 Loan, the Mezzanine 1 Loan Liabilities, the Mezzanine 2 Loan Liabilities, the Mezzanine 3 Loan Liabilities, the Mezzanine 4 Loan Liabilities, the Mezzanine 5 Loan Liabilities and the Mezzanine 6 Loan Liabilities; (viii) with respect to the Mezzanine 8 Loan, the Mezzanine 1 Loan Liabilities, the Mezzanine 2 Loan Liabilities,

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the Mezzanine 3 Loan Liabilities, the Mezzanine 4 Loan Liabilities, the Mezzanine 5 Loan Liabilities, the Mezzanine 6 Loan Liabilities and the Mezzanine 7 Loan Liabilities; (ix) with respect to the Mezzanine 9 Loan, the Mezzanine 1 Loan Liabilities, the Mezzanine 2 Loan Liabilities, the Mezzanine 3 Loan Liabilities, the Mezzanine 4 Loan Liabilities, the Mezzanine 5 Loan Liabilities, the Mezzanine 6 Loan Liabilities, the Mezzanine 7 Loan Liabilities and the Mezzanine 8 Loan Liabilities; (x) with respect to the

Mezzanine 10 Loan, the Mezzanine 1 Loan Liabilities, the Mezzanine 2 Loan Liabilities, the Mezzanine 3 Loan• Liabilities, the Mezzanine 4 Loan Liabilities, the Mezzanine 5 Loan Liabilities, the Mezzanine 6 Loan Liabilities, the Mezzanine 7 Loan Liabilities, the Mezzanine 8 Loan Liabilities and the Mezzanine 9 Loan Liabilities; and (xi) with respect to the Mezzanine 11 Loan, the Mezzanine 1 Loan Liabilities, the Mezzanine 2 Loan Liabilities, the Mezzanine 3 Loan Liabilities, the Mezzanine 4 Loan Liabilities, the Mezzanine 5 Loan Liabilities, the Mezzanine 6 Loan Liabilities, the Mezzanine 7 Loan Liabilities, the Mezzanine 8 Loan Liabilities, the Mezzanine 9 Loan Liabilities and the Mezzanine 10 Loan Liabilities. As the context requires, Senior Junior Loan Liabilities shall have the following order of priority: (i) first, the Mezzanine 1 Loan Liabilities; (ii) second, the Mezzanine 2 Loan Liabilities; (iii) third, the Mezzanine 3 Loan Liabilities; (iv) fourth, the Mezzanine 4 Loan Liabilities, (v) fifth, the Mezzanine 5 Loan Liabilities, (vi) sixth, the Mezzanine 6 Loan Liabilities, (vii) seventh, the Mezzanine 7 Loan Liabilities, (viii) eighth, the Mezzanine 8 Loan Liabilities, (ix) ninth, the Mezzanine 9 Loan Liabilities, (x) tenth, the Mezzanine 10 Loan Liabilities, and (xi) eleventh, the Mezzanine 11 Loan Liabilities.

"Senior Junior Loan Modification" has the meaning provided in Section 8(c) hereof.

"Senior Junior Loan Purchase Price" has the meaning provided in Section 14(a).

"Senior Junior Loans" means (i) with respect to the Mezzanine 1 Loan, none

of the other Junior Loans; (ii) with respect to the Mezzanine 2 Loan, Mezzanine 1 Loan; (iii) with respect to the Mezzanine 3 Loan, the Mezzanine 1 Loan and the Mezzanine 2 Loan; (iv) with respect to the Mezzanine 4 Loan, the Mezzanine 1 Loan, the Mezzanine 2 Loan, and the Mezzanine 3 Loan; (v) with respect to the Mezzanine 5 Loan, the Mezzanine 1 Loan, the Mezzanine 2 Loan, the Mezzanine 3 Loan and the Mezzanine 4 Loan; (vi) with respect to the Mezzanine 6 Loan, the Mezzanine I Loan, the Mezzanine 2 Loan, the Mezzanine 3 Loan, the Mezzanine 4 Loan and the Mezzanine 5 Loan; (vii) with respect to the Mezzanine 7 Loan, the Mezzanine 1 Loan, the Mezzanine 2 Loan, the Mezzanine 3 Loan, the Mezzanine 4 Loan, the Mezzanine 5 Loan and the Mezzanine 6 Loan; (viii) with respect to the Mezzanine 8 Loan, the Mezzanine 1 Loan, the Mezzanine 2 Loan, the Mezzanine 3 Loan, the Mezzanine 4 Loan, the Mezzanine 5 Loan, the Mezzanine 6 Loan and the Mezzanine 7 Loan; (ix) with respect to the Mezzanine 9 Loan, the Mezzanine 1 Loan, the Mezzanine 2 Loan, the Mezzanine 3 Loan, the Mezzanine 4 Loan, the Mezzanine 5 Loan, the Mezzanine 6 Loan, the Mezzanine 7 Loan and the Mezzanine 8 Loan; (x) with respect to the Mezzanine 10 Loan, the Mezzanine 1 Loan, the Mezzanine 2 Loan, the Mezzanine 3 Loan, the Mezzanine 4 Loan, the Mezzanine 5 Loan, the Mezzanine 6 Loan, the Mezzanine 7 Loan, the Mezzanine 8 Loan and the Mezzanine 9 Loan; and (xi) with respect to the Mezzanine 11 Loan, the Mezzanine 1 Loan, the Mezzanine 2 Loan, the Mezzanine 3 Loan, the Mezzanine 4 Loan, the Mezzanine 5 Loan, the Mezzanine 6 Loan, the

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Mezzanine 7 Loan, the Mezzanine 8 Loan, the Mezzanine 9 Loan and the Mezzanine 10 Loan. As the context requires, Senior Junior Loans shall have the following order of priority: (i) first, Mezzanine I Loan; (ii) second, Mezzanine 2 Loan; (iii) third, Mezzanine 3 Loan; (iv) fourth, Mezzanine 4 Loan, (v) fifth, Mezzanine 5 Loan, (vi) sixth, Mezzanine 6 Loan, (vii) seventh, Mezzanine 7 Loan, (viii) eighth, Mezzanine 8 Loan, (ix) ninth, Mezzanine 9 Loan, (x) tenth, Mezzanine 10 Loan, and (xi) eleventh, Mezzanine 11 Loan.

"Senior Lender" has the meaning set forth in the Recitals

hereto. "Senior Loan" has the meaning set forth in the Recitals

hereto.

"Senior Loan Agreement" has the meaning set forth in the Recitals hereto.

"Senior Loan Cash Management Agreement" means that certain Central Account Agreement between Borrower and Senior Lender, among others, entered into in connection with the Senior Loan.

"Senior Loan Default Notice" has the meaning set forth in Section 12(a)

hereof. "Senior Loan Documents" has the meaning set forth in the Recitals

hereto.

"Senior Loan Liabilities" shall mean, collectively, all of the indebtedness, liabilities and obligations of Borrower under any Senior Loan Document, including, without limitation (i) the principal amount of, and accrued interest on (including, without limitation, any interest which accrues after the commencement of any case, proceeding or other action relating to the bankruptcy, insolvency or reorganization of Borrower, whether or not such interest would be allowed in such case, proceeding or action), the Senior Loan, (ii) all other indebtedness, obligations and liabilities of Borrower to Senior Lender now existing or hereafter incurred or created under the Senior Loan Documents, and (iii) all other indebtedness, obligations and liabilities of Borrower to Senior Lender now existing or hereafter incurred, created and arising from or relating to the Senior Loan, including, without limitation, any late charges, default interest, prepayment fees or premiums (including spread maintenance and yield maintenance premiums), exit fees, advances and post petition interest.

"Senior Loan Modification" has the meaning set forth in Section 8(a) hereof.

"Senior Loan Purchase Price" has the meaning set forth in Section 14(a)

hereof "Senior Note" has the meaning set forth in the Recitals hereto.

"Separate Collateral" means, collectively, (i) the Equity Collateral, (ii)

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the accounts (and monies therein from time to time) established pursuant to each of the Junior Loan Cash Management Agreements, and (iii) any other collateral given as security for each of the Junior Loans pursuant to the Junior Loan Documents, in each case not constituting security for the Senior Loan or any Senior Junior Loans.

"Separate Collateral Enforcement Action" means any action or proceeding or other exercise of a Junior Lender's rights and remedies under its respective Junior Loan Documents, at law or in equity, or otherwise, in order to realize upon any of its respective Separate Collateral (including, without limitation, an assignment in lieu of foreclosure or other negotiated settlement in lieu of any such enforcement action).

"SL Green" means SL Green Operating Partnership, L.P., a Delaware limited partnership.

"SPE Constituent Entity" means any entity required to be a single purpose entity pursuant to the terms of the Senior Loan Documents (but excluding any Junior Borrower).

"Subordinate Junior Borrowers" means (i) with respect to the Mezzanine 1 Loan, the Mezzanine 2 Borrower, the Mezzanine 3 Borrower, the Mezzanine 4 Borrower, the Mezzanine 5 Borrower, the Mezzanine 6 Borrower, the Mezzanine 7 Borrower, the Mezzanine 8 Borrower, the Mezzanine 9 Borrower, the Mezzanine 10 Borrower, and the Mezzanine 11 Borrower; (ii) with respect to the Mezzanine 2 Loan, the Mezzanine 3 Borrower, the Mezzanine 4 Borrower, the Mezzanine 5 Borrower, the Mezzanine 6 Borrower, the Mezzanine 7 Borrower, the Mezzanine 8 Borrower, the Mezzanine 9 Borrower, the Mezzanine 10 Borrower, and the Mezzanine 11 Borrower; (iii) with respect to the Mezzanine 3 Loan, the Mezzanine 4 Borrower, the Mezzanine 5 Borrower, the Mezzanine 6 Borrower, the Mezzanine 7 Borrower, the Mezzanine 8 Borrower, the Mezzanine 9 Borrower, the Mezzanine 10 Borrower, and the Mezzanine 11 Borrower; (iv) with respect to the Mezzanine 4 Loan, the Mezzanine 5 Borrower, the Mezzanine 6 Borrower, the Mezzanine 7 Borrower, the Mezzanine 8 Borrower, the Mezzanine 9 Borrower, the Mezzanine 10 Borrower, and the Mezzanine 11 Borrower; (v) with respect to the Mezzanine 5 Loan, the Mezzanine 6 Borrower, the Mezzanine 7 Borrower, the Mezzanine 8 Borrower, the Mezzanine 9 Borrower, the Mezzanine 10 Borrower, and the Mezzanine 11 Borrower; (vi) with respect to the Mezzanine 6 Loan, the Mezzanine 7 Borrower, the Mezzanine 8 Borrower, the Mezzanine 9 Borrower, the Mezzanine 10 Borrower, and the Mezzanine 11 Borrower; (vii) with respect to the Mezzanine 7 Loan, the Mezzanine 8 Borrower, the Mezzanine 9 Borrower, the Mezzanine 10 Borrower, and the Mezzanine 11 Borrower, (viii) with respect to the Mezzanine 8 Loan, the Mezzanine 9 Borrower, the Mezzanine 10 Borrower, and the Mezzanine 11 Borrower; (ix) with respect to the Mezzanine 9 Loan, the Mezzanine 10 Borrower, and the Mezzanine 11 Borrower; (x) with respect to the Mezzanine 10 Loan, the Mezzanine 11 Borrower; and (xi) with respect to the Mezzanine 11 Loan, none of the other Junior Borrowers.

"Subordinate Junior Lenders" means (i) with respect to the Mezzanine 1 Loan, the Mezzanine 2 Lender, the Mezzanine 3 Lender, the Mezzanine 4 Lender, the Mezzanine 5 Lender, the Mezzanine 6 Lender, the Mezzanine 7 Lender, the Mezzanine 8 Lender, the Mezzanine 9 Lender, the Mezzanine 10 Lender, and the Mezzanine 11 Lender; (ii) with respect to the Mezzanine 2 Loan, the Mezzanine 3 Lender, the Mezzanine 4 Lender, the Mezzanine 5 Lender, the Mezzanine 6 Lender, the Mezzanine 7 Lender, the Mezzanine 8 Lender, the Mezzanine 9 Lender, the Mezzanine 10 Lender, and the Mezzanine 11 Lender; (iii) with respect to the Mezzanine 3 Loan, the Mezzanine 4 Lender, the Mezzanine 5 Lender, the Mezzanine 6 Lender, the Mezzanine 7 Lender, the Mezzanine 8 Lender, the Mezzanine 9 Lender, the Mezzanine 10 Lender, and the Mezzanine 11 Lender; (iv) with respect to the Mezzanine 4 Loan, the Mezzanine 5 Lender, the Mezzanine 6 Lender, the Mezzanine 7 Lender, the Mezzanine 8 Lender, the Mezzanine 9 Lender, the Mezzanine 10 Lender, and the Mezzanine 11 Lender; (v) with respect to the Mezzanine 5 Loan, the Mezzanine 6 Lender, the Mezzanine 7 Lender, the Mezzanine 8 Lender, the Mezzanine 9 Lender, the Mezzanine 10 Lender, and the USActive 7415617.4 -32-

Mezzanine 11 Lender; (vi) with respect to the Mezzanine 6 Loan, the Mezzanine 7 Lender, the Mezzanine 8 Lender, the Mezzanine 9 Lender, the Mezzanine 10 Lender, and the Mezzanine 11 Lender; (vii) with respect to the Mezzanine 7 Loan, the Mezzanine 8 Lender, the Mezzanine 9 Lender, the Mezzanine 10 Lender, and the Mezzanine 11 Lender; (viii) with respect to the Mezzanine 8 Loan, the Mezzanine 9 Lender, the Mezzanine 10 Lender, and the Mezzanine 11 Lender;

(ix) with respect to the Mezzanine 9 Loan, the Mezzanine 10 Lender, and the Mezzanine 11 Lender; (x) with respect to the Mezzanine 10 Loan, and the Mezzanine 11 Lender; and (xi) with respect to the Mezzanine 11 Loan, none of the other Junior Lenders. As the context requires, the Subordinate Junior Lenders shall have the following order of priority: (i) first, the Mezzanine 1 Lender; (ii) second, the Mezzanine 2 Lender; (iii) third, the Mezzanine 3 Lender; (iv) fourth, the Mezzanine 4 Lender, (v) fifth, the Mezzanine 5 Lender, (vi) sixth, the Mezzanine 6 Lender, (vii) seventh, the Mezzanine 7 Lender, (viii) eighth, the Mezzanine 8 Lender, (ix) ninth, the Mezzanine 9 Lender, (x) tenth, the Mezzanine 10 Lender, and (xi) eleventh, the Mezzanine 11 Lender.

"Subordinate Junior Loan Agreements" means (i) with respect to the Mezzanine 1 Loan, the Mezzanine 2 Loan Agreement, the Mezzanine 3 Loan Agreement, the Mezzanine 4 Loan Agreement, the Mezzanine 5 Loan Agreement, the Mezzanine 6 Loan Agreement, the Mezzanine 7 Loan Agreement, the Mezzanine 8 Loan Agreement, the Mezzanine 9 Loan Agreement, the Mezzanine 10 Loan Agreement, and the Mezzanine 11 Loan Agreement; (ii) with respect to the Mezzanine 2 Loan, the Mezzanine 3 Loan Agreement, the Mezzanine 4 Loan Agreement, the Mezzanine 5 Loan Agreement, the Mezzanine 6 Loan Agreement, the Mezzanine 7 Loan Agreement, the Mezzanine 8 Loan Agreement, the Mezzanine 9 Loan Agreement, the Mezzanine 10 Loan Agreement, and the Mezzanine 11 Loan Agreement; (iii) with respect to the Mezzanine 3 Loan, the Mezzanine 4 Loan Agreement, the Mezzanine 5 Loan Agreement, the Mezzanine 6 Loan Agreement, the Mezzanine 7 Loan Agreement, the Mezzanine 8 Loan Agreement, the Mezzanine 9 Loan Agreement, the Mezzanine 10 Loan Agreement, and the Mezzanine 11 Loan Agreement; (iv) with respect to the Mezzanine 4 Loan, the Mezzanine 5 Loan Agreement, the Mezzanine 6 Loan Agreement, the Mezzanine 7 Loan Agreement, the Mezzanine 8 Loan Agreement, the Mezzanine 9 Loan Agreement, the Mezzanine 10 Loan Agreement, and the Mezzanine 11 Loan Agreement; (v) with respect to the Mezzanine 5 Loan, the Mezzanine 6 Loan Agreement, the Mezzanine 7 Loan Agreement, the Mezzanine 8 Loan Agreement, the Mezzanine 9 Loan Agreement, the Mezzanine 10 Loan Agreement, and the Mezzanine 11 Loan Agreement; (vi) with respect to the Mezzanine 6 Loan, the Mezzanine 7 Loan Agreement, the Mezzanine 8 Loan Agreement, the Mezzanine 9 Loan Agreement, the Mezzanine 10 Loan Agreement, and the Mezzanine 11 Loan Agreement; (vii) with respect to the Mezzanine 7 Loan, the Mezzanine 8 Loan Agreement, the Mezzanine 9 Loan Agreement, the Mezzanine 10 Loan Agreement, and the Mezzanine 11 Loan Agreement; (viii) with respect to the Mezzanine 8 Loan, the Mezzanine 9 Loan Agreement, the Mezzanine 10 Loan Agreement, and the Mezzanine 11 Loan Agreement; (ix) with respect to the Mezzanine 9 Loan, the Mezzanine 10 Loan Agreement, and the Mezzanine 11 Loan Agreement; (x) with respect to the Mezzanine 10 Loan, and the Mezzanine 11 Loan Agreement; and (xi) with respect to the Mezzanine 11 Loan, none of the other Junior Loan Agreements. As the context requires, the Subordinate Junior Loan Agreements shall have the following order of priority: (i) first, the Mezzanine 1 Loan Agreement; (ii) second, the Mezzanine 2 Loan Agreement; (iii) third, the Mezzanine 3 Loan Agreement; (iv) fourth, the Mezzanine 4 Loan Agreement, (v) fifth, the Mezzanine 5 Loan Agreement, (vi) sixth,

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the Mezzanine 6 Loan Agreement, (vii) seventh, the Mezzanine 7 Loan Agreement, (viii) eighth, the Mezzanine 8 Loan Agreement, (ix) ninth, the Mezzanine 9 Loan Agreement, (x) tenth, the Mezzanine 10 Loan Agreement, and (xi) eleventh, the Mezzanine 11 Loan Agreement.

"Subordinate Junior Loan Cash Management Agreements" means (i) with respect to the Mezzanine 1 Loan, the Mezzanine 2 Cash Management Agreement, the Mezzanine 3 Cash Management Agreement, the Mezzanine 4 Cash Management Agreement, the Mezzanine 5 Cash Management Agreement, the Mezzanine 6 Cash Management Agreement, the Mezzanine 7 Cash Management Agreement, the Mezzanine 8 Cash Management Agreement, the Mezzanine 9 Cash Management Agreement, the Mezzanine 10 Cash Management Agreement, and the Mezzanine 11 Loan Cash Management Agreement; (ii) with respect to the Mezzanine 2 Loan, the Mezzanine 3 Cash Management Agreement, the Mezzanine 4 Cash Management Agreement, the Mezzanine 5 Cash Management Agreement, the Mezzanine 6 Cash Management Agreement, the Mezzanine 7 Cash Management Agreement, the Mezzanine 8 Cash Management Agreement, the Mezzanine 9 Cash Management Agreement, the Mezzanine 10 Cash Management Agreement, and the Mezzanine 11 Loan Cash Management Agreement; (iii) with respect to the Mezzanine 3 Loan, the Mezzanine 4 Cash Management Agreement, the Mezzanine 5 Cash Management Agreement, the Mezzanine 6 Cash Management Agreement, the Mezzanine 7 Cash Management Agreement, the Mezzanine 8 Cash Management Agreement, the Mezzanine 9 Cash Management Agreement, the Mezzanine 10 Cash Management Agreement, and the Mezzanine 11 Loan Cash Management Agreement; (iv) with respect to the Mezzanine 4 Loan, the Mezzanine 5 Cash Management Agreement, the Mezzanine 6 Cash Management Agreement, the Mezzanine 7 Cash Management Agreement, the Mezzanine 8 Cash Management Agreement, the Mezzanine 9 Cash Management Agreement, the Mezzanine 10 Cash Management Agreement, and the Mezzanine 11 Loan Cash Management Agreement; (v) with respect to the Mezzanine 5 Loan, the Mezzanine 6 Cash Management Agreement, the Mezzanine 7 Cash Management Agreement, the Mezzanine 8 Cash Management Agreement, the Mezzanine 9 Cash Management Agreement, the Mezzanine 10 Cash Management Agreement, and the Mezzanine 11 Loan Cash Management Agreement; (vi) with respect to the Mezzanine 6 Loan, the Mezzanine 7 Cash Management Agreement, the Mezzanine 8 Cash Management Agreement, the Mezzanine 9 Cash Management Agreement, the Mezzanine 10 Cash Management Agreement, and the Mezzanine 11 Loan Cash Management Agreement; (vii) with respect to the Mezzanine 7 Loan, the Mezzanine 8 Cash Management Agreement, the Mezzanine 9 Cash Management Agreement, the Mezzanine 10 Cash Management Agreement, and the Mezzanine 11 Loan Cash Management Agreement; (viii) with respect to the Mezzanine 8 Loan, the Mezzanine 9 Cash Management Agreement, the Mezzanine 10 Cash Management Agreement, and the Mezzanine 11 Loan Cash Management Agreement; (ix) with respect to the Mezzanine 9 Loan, the Mezzanine 10 Cash Management Agreement, and the Mezzanine 11 Loan Cash Management Agreement; (x) with respect to the Mezzanine 10 Loan, and the Mezzanine 11 Loan Cash Management Agreement; and (xi) with respect to the Mezzanine 11 Loan, none of the other Junior Cash Management Agreements. As the context requires, the Subordinate Junior Cash Management Agreements shall have the following order of priority: (i) first, the Mezzanine 1 Cash Management Agreement; (ii) second, the Mezzanine 2 Cash Management Agreement; (iii) third, the Mezzanine 3 Cash Management Agreement; (iv) fourth, the Mezzanine 4 Cash Management Agreement, (v) fifth, the Mezzanine 5 Cash Management Agreement, (vi) sixth, the Mezzanine 6 Cash USActive 7415617.4 -34-

Management Agreement, (vii) seventh, the Mezzanine 7 Cash Management Agreement, (viii) eighth, the Mezzanine 8 Cash Management Agreement, (ix) ninth, the Mezzanine 9 Cash Management Agreement, (x) tenth, the Mezzanine 10 Cash Management Agreement, and (xi) eleventh, the Mezzanine 11 Cash Management Agreement.

"Subordinate Junior Loan Documents" means (i) with respect to the Mezzanine 1 Loan, the Mezzanine 2 Loan Documents, the Mezzanine 3 Loan Documents, the Mezzanine 4 Loan Documents, the Mezzanine 5 Loan Documents, the Mezzanine 6 Loan Documents, the Mezzanine 7 Loan Documents, the Mezzanine 8 Loan Documents, the Mezzanine 9 Loan Documents, the Mezzanine 10 Loan Documents, and the Mezzanine 11 Loan Documents; (ii) with respect to the Mezzanine 2 Loan, the Mezzanine 3 Loan Documents, the Mezzanine 4 Loan Documents, the Mezzanine 5 Loan Documents, the Mezzanine 6 Loan Documents, the Mezzanine 7 Loan Documents, the Mezzanine 8 Loan Documents, the Mezzanine 9 Loan Documents, the Mezzanine 10 Loan Documents, and the Mezzanine 11 Loan Documents; (iii) with respect to the Mezzanine 3 Loan, the Mezzanine 4 Loan Documents, the Mezzanine 5 Loan Documents, the Mezzanine 6 Loan Documents, the Mezzanine 7 Loan Documents, the Mezzanine 8 Loan Documents, the Mezzanine 9 Loan Documents, the Mezzanine 10 Loan Documents, and the Mezzanine 11 Loan Documents; (iv) with respect to the Mezzanine 4 Loan, the Mezzanine 5 Loan Documents, the Mezzanine 6 Loan Documents, the Mezzanine 7 Loan Documents, the Mezzanine 8 Loan Documents, the Mezzanine 9 Loan Documents, the Mezzanine 10 Loan Documents, and the Mezzanine 11 Loan Documents; (v) with respect to the Mezzanine 5 Loan, the Mezzanine 6 Loan Documents, the Mezzanine 7 Loan Documents, the Mezzanine 8 Loan Documents, the Mezzanine 9 Loan Documents, the Mezzanine 10 Loan Documents, and the Mezzanine 11 Loan Documents; (vi) with respect to the Mezzanine 6 Loan, the Mezzanine 7 Loan Documents, the Mezzanine 8 Loan Documents, the Mezzanine 9 Loan Documents, the Mezzanine 10 Loan Documents, and the Mezzanine 11 Loan Documents; (vii) with respect to the Mezzanine 7 Loan, the Mezzanine 8 Loan Documents, the Mezzanine 9 Loan Documents, the Mezzanine 10 Loan Documents, and the Mezzanine 11 Loan Documents, (viii) with respect to the Mezzanine 8 Loan, the Mezzanine 9 Loan Documents, the Mezzanine 10 Loan Documents, and the Mezzanine 11 Loan Documents; (ix) with respect to the Mezzanine 9 Loan, the Mezzanine 10 Loan Documents, and the Mezzanine 11 Loan Documents; (x) with respect to the Mezzanine 10 Loan, and the Mezzanine 11 Loan Documents; and (xi) with respect to the Mezzanine 11 Loan, none of the other Junior Loan Documents. As the context requires, the Subordinate Junior Loan Documents shall have the following order of priority: (i) first, the Mezzanine 1 Loan Documents; (ii) second, the Mezzanine 2 Loan Documents; (iii) third, the Mezzanine 3 Loan Documents; (iv) fourth, the Mezzanine 4 Loan Documents, (v) fifth, the Mezzanine 5 Loan Documents, (vi) sixth, the Mezzanine 6 Loan Documents, (vii) seventh, the Mezzanine 7 Loan Documents, (viii) eighth, the Mezzanine 8 Loan Documents, (ix) ninth, the Mezzanine 9 Loan Documents, (x) tenth, the Mezzanine 10 Loan Documents, and (xi) eleventh, the Mezzanine 11 Loan Documents.

"Subordinate Junior Loans" means (i) with respect to the Mezzanine 1 Loan, the Mezzanine 2 Loan, the Mezzanine 3 Loan, the Mezzanine 4 Loan, the Mezzanine 5 Loan, the Mezzanine 6 Loan, the Mezzanine 7 Loan, the Mezzanine 8 Loan, the

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Mezzanine 9 Loan, the Mezzanine 10 Loan, and the Mezzanine 11 Loan; (ii) with respect to the Mezzanine 2 Loan, the Mezzanine 3 Loan, the Mezzanine 4 Loan, the Mezzanine 5 Loan, the Mezzanine 6 Loan, the Mezzanine 7 Loan, the Mezzanine 8 Loan, the Mezzanine 9 Loan, the Mezzanine 10 Loan, and the Mezzanine 11 Loan; (iii) with respect to the Mezzanine 3 Loan, the Mezzanine 4 Loan, the Mezzanine 5 Loan, the Mezzanine 6 Loan, the Mezzanine 7 Loan, the Mezzanine 8 Loan, the Mezzanine 9 Loan, the Mezzanine 10 Loan, and the Mezzanine 11 Loan; (iv) with respect to the Mezzanine 4 Loan, the Mezzanine 5 Loan, the Mezzanine 6 Loan, the Mezzanine 7 Loan, the Mezzanine 8 Loan, the Mezzanine 9 Loan, the Mezzanine 10 Loan, and the Mezzanine 11 Loan;

• (v) with respect to the Mezzanine 5 Loan, the Mezzanine 6 Loan, the Mezzanine 7 Loan, the Mezzanine 8 Loan, the Mezzanine 9 Loan, the Mezzanine 10 Loan, and the Mezzanine 11 Loan; (vi) with respect to the Mezzanine 6 Loan, the Mezzanine 7 Loan, the Mezzanine 8 Loan, the Mezzanine 9 Loan, the Mezzanine 10 Loan, and the Mezzanine 11 Loan; (vii) with respect to the Mezzanine 7 Loan, the Mezzanine 8 Loan, the Mezzanine 9 Loan, the Mezzanine 10 Loan, and the Mezzanine 11 Loan; (viii) with respect to the Mezzanine 8 Loan, the Mezzanine 9 Loan, the Mezzanine 10 Loan, and the Mezzanine 11 Loan; (ix) with respect to the Mezzanine 9 Loan, the Mezzanine 10 Loan, and the Mezzanine 11 Loan; and (x) with respect to the Mezzanine 10 Loan, and the Mezzanine 11 Loan; and (xi) with respect to the Mezzanine 11 Loan, none of the other Junior Loans. As the context requires, the Subordinate Junior Loans shall have the following order of priority: (i) first, the Mezzanine 1 Loan; (ii) second, the Mezzanine 2 Loan; (iii) third, the Mezzanine 3 Loan; (iv) fourth, the Mezzanine 4 Loan, (v) fifth, the Mezzanine 5 Loan, (vi) sixth, the Mezzanine 6 Loan, (vii) seventh, the Mezzanine 7 Loan, (viii) eighth, the Mezzanine 8 Loan, (ix) ninth, the Mezzanine 9 Loan, (x) tenth, the Mezzanine 10 Loan, and (xi) eleventh, the Mezzanine 11 Loan.

"Third Party Agreement" has the meaning set forth in Section 6(a)

hereof. "Third Party Obligor" has the meaning set forth in Section 6(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.



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


(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

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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 headings and captions used in this Agreement are for convenience of reference only and do not define, limit or describe the scope or intent of the provisions of this Agreement;

(viii) the words "to Junior Lender's knowledge" or "to the knowledge of Junior Lender" (or words of similar meaning) shall mean to the actual knowledge of officers of the applicable Junior Lender with direct oversight responsibility for its Junior Loan without independent investigation or inquiry and without any imputation whatsoever; and

(ix) 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.

"Wachovia" means Wachovia Bank, National Association, a national banking association, and its successors in interest.

Section 2. Characterization of the Junior Loans.

(a) Senior Loan. Each Junior Lender, with respect only to its Junior Loan, hereby acknowledges that (i) Borrower will not ever have any liability or obligation whatsoever with respect to the Junior Notes or otherwise in connection with the payment of the Junior Loans, (ii) the Junior 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 any Junior Lender the status as a creditor of Borrower, (iii) they shall not 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 and (iv) they shall not assert, pursue, confirm or acquiesce in any way to any recharacterization of the Junior Loans as having conferred upon any Junior Lender any lien or encumbrance upon, or security interest in, the Premises or any portion thereof or as having conferred upon Junior Lenders the status of a creditor of Borrower.

(b) Mezzanine 1 Loan. Mezzanine 1 Lender hereby acknowledges that (i) no Junior Borrower other than the Mezzanine 1 Borrower will ever have any liability or obligation whatsoever with respect to the Mezzanine 1 Note or otherwise in connection with the payment of the Mezzanine 1 Loan; (ii) the Mezzanine 1 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

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securing any Junior Loan other than the Mezzanine 1 Loan; (iii) the Mezzanine 1 Loan does not grant to Mezzanine 1 Lender the status as a creditor of any Junior Borrower other than Mezzanine 1 Borrower; (iv) Mezzanine 1 Lender shall not assert, claim or raise as a defense, any such lien, encumbrance or security interest in the Separate Collateral securing any Junior Loan other than the Mezzanine 1 Loan; (v) Mezzanine 1 Lender shall not assert, claim or raise as a defense any status as a creditor of any

Junior Borrower other than Mezzanine 1 Borrower in any action or proceeding, including any insolvency or bankruptcy proceeding commenced by or against Mezzanine 1 Borrower; and (vi) Mezzanine 1 Lender shall not assert, pursue, confirm or acquiesce in any way to any recharacterization of the Mezzanine 1 Loan as having conferred upon Mezzanine 1 Lender any lien or encumbrance upon, or security interest in, the Separate Collateral securing any Junior Loan other than the Mezzanine 1 Loan or as having conferred upon Mezzanine 1 Lender the status of a creditor of any Junior Borrower other than Mezzanine 1 Borrower.

(c) Mezzanine 2 Loan. Mezzanine 2 Lender hereby acknowledges that (i) no Junior Borrower other than the Mezzanine 2 Borrower will ever have any liability or obligation whatsoever with respect to the Mezzanine 2 Note or otherwise in connection with the payment of the Mezzanine 2 Loan; (ii) the Mezzanine 2 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 Junior Loan other than the Mezzanine 2 Loan; (iii) the Mezzanine 2 Loan does not grant to Mezzanine 2 Lender the status as a creditor of any Junior Borrower other than Mezzanine 2 Borrower; (iv) Mezzanine 2 Lender shall not assert, claim or raise as a defense, any such lien, encumbrance or security interest in the Separate Collateral securing any Junior Loan other than the Mezzanine 2 Loan; (v) Mezzanine 2 Lender shall not assert, claim or raise as a defense any status as a creditor of any Junior Borrower other than Mezzanine 2 Borrower in any action or proceeding, including any insolvency or bankruptcy proceeding commenced by or against Mezzanine 2 Borrower; and (vi) Mezzanine 2 Lender shall not assert, pursue, confirm or acquiesce in any way to any recharacterization of the Mezzanine 2 Loan as having conferred upon Mezzanine 2 Lender any lien or encumbrance upon, or security interest in, the Separate Collateral securing any Junior Loan other than the Mezzanine 2 Loan or as having conferred upon Mezzanine 2 Lender the status of a creditor of any Junior Borrower other than Mezzanine 2 Borrower.

(d) Mezzanine 3 Loan. Mezzanine 3 Lender hereby acknowledges that (i) no Junior Borrower other than the Mezzanine 3 Borrower will ever have any liability or obligation whatsoever with respect to the Mezzanine 3 Note or otherwise in connection with the payment of the Mezzanine 3 Loan; (ii) the Mezzanine 3 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 Junior Loan other than the Mezzanine 3 Loan; (iii) the Mezzanine 3 Loan does not grant to Mezzanine 3 Lender the status as a creditor of any Junior Borrower other than Mezzanine 3 Borrower; (iv) Mezzanine 3 Lender shall not assert, claim or raise as a defense, any such lien, encumbrance or security interest in the Separate Collateral securing any Junior Loan other than the Mezzanine 3 Loan; (v) Mezzanine 3 Lender shall not assert, claim or raise as a defense any status as a creditor of any Junior Borrower other than Mezzanine 3 Borrower in any action or proceeding, including any insolvency or bankruptcy proceeding commenced by or against Mezzanine 3 Borrower; and USActive 7415617.4 -38-

(vi) Mezzanine 3 Lender shall not assert, pursue, confirm or acquiesce in any way to any recharacterization of the Mezzanine 3 Loan as having conferred upon Mezzanine 3 Lender any lien or encumbrance upon, or security interest in, the Separate Collateral securing any Junior Loan other than the Mezzanine 3 Loan or as having conferred upon Mezzanine 3 Lender the status of a creditor of any Junior Borrower other than Mezzanine 3 Borrower.

(e) Mezzanine 4 Loan. Mezzanine 4 Lender hereby acknowledges that (i) no Junior Borrower other than the Mezzanine 4 Borrower will ever have any liability or obligation whatsoever with respect to the Mezzanine 4 Note or otherwise in connection with the payment of the Mezzanine 4 Loan; (ii) the Mezzanine 4 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 Junior Loan other than the Mezzanine 4 Loan; (iii) the Mezzanine 4 Loan does not grant to Mezzanine 4 Lender the status as a creditor of any Junior Borrower other than Mezzanine 4 Borrower; (iv) Mezzanine 4 Lender shall not assert, claim or raise as a defense, any such lien, encumbrance or security interest in the Separate Collateral securing any Junior Loan other than the Mezzanine 4 Loan; (v) Mezzanine 4 Lender shall not assert, claim or raise as a defense any status as a creditor of any Junior Borrower other than Mezzanine 4 Borrower in any action or proceeding, including any insolvency or bankruptcy proceeding commenced by or against Mezzanine 4 Borrower; and (vi) Mezzanine 4 Lender shall not assert, pursue, confirm or acquiesce in any way to any recharacterization of the Mezzanine 4 Loan as having conferred upon Mezzanine 4 Lender any lien or encumbrance upon, or security interest in, the Separate Collateral securing any Junior Loan other than the Mezzanine 4 Loan or as having conferred upon Mezzanine 4 Lender the status of a creditor of any Junior Borrower other than Mezzanine 4 Borrower.

(0 Mezzanine 5 Loan. Mezzanine 5 Lender hereby acknowledges that (i) no Junior Borrower other than the Mezzanine 5 Borrower will ever have any liability or obligation whatsoever with respect to the Mezzanine 5 Note or otherwise in connection with the payment of the Mezzanine 5 Loan; (ii) the Mezzanine 5 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 Junior Loan other than the Mezzanine 5 Loan; (iii) the Mezzanine 5 Loan does not grant to Mezzanine 5 Lender the status as a creditor of any Junior Borrower other than Mezzanine 5 Borrower; (iv) Mezzanine 5 Lender shall not assert, claim or raise as a defense, any such lien, encumbrance or security interest in the Separate Collateral securing any Junior Loan other than the Mezzanine 5 Loan; (v) Mezzanine 5 Lender shall not assert, claim or raise as a defense any status as a creditor of any Junior Borrower other than Mezzanine 5 Borrower in any action or proceeding, including any insolvency or bankruptcy proceeding commenced by or against Mezzanine 5 Borrower; and (vi) Mezzanine 5 Lender shall not assert, pursue, confirm or acquiesce in any way to any recharacterization of the Mezzanine 5 Loan as having conferred upon Mezzanine 5 Lender any lien or encumbrance upon, or security interest in, the Separate Collateral securing any Junior Loan other than the Mezzanine 5 Loan or as having conferred upon Mezzanine 5 Lender the status of a creditor of any Junior Borrower other than Mezzanine 5 Borrower.

(g) Mezzanine 6 Loan. Mezzanine 6 Lender hereby acknowledges that (i) no Junior Borrower other than the Mezzanine 6 Borrower will ever have any liability or obligation whatsoever with respect to the Mezzanine 6 Note or otherwise in connection with USActive 7415617.4 -39-

the payment of the Mezzanine 6 Loan; (ii) the Mezzanine 6 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 Junior Loan other than the Mezzanine 6 Loan; (iii) the Mezzanine 6 Loan does not grant to Mezzanine 6 Lender the status as a creditor of any Junior Borrower other than Mezzanine 6 Borrower; (iv) Mezzanine 6 Lender shall not assert, claim or raise as a defense, any such lien, encumbrance or security

interest in the Separate Collateral securing any Junior Loan other than the Mezzanine 6 Loan;

(v) Mezzanine 6 Lender shall not assert, claim or raise as a defense any status as a creditor of any Junior Borrower other than Mezzanine 6 Borrower in any action or proceeding, including any insolvency or bankruptcy proceeding commenced by or against Mezzanine 6 Borrower; and (vi) Mezzanine 6 Lender shall not assert, pursue, confirm or acquiesce in any way to any recharacterization of the Mezzanine 6 Loan as having conferred upon Mezzanine 6 Lender any lien or encumbrance upon, or security interest in, the Separate Collateral securing any Junior Loan other than the Mezzanine 6 Loan or as having conferred upon Mezzanine 6 Lender the status of a creditor of any Junior Borrower other than Mezzanine 6 Borrower.

(h) Mezzanine 7 Loan. Mezzanine 7 Lender hereby acknowledges that (i) no Junior Borrower other than the Mezzanine 7 Borrower will ever have any liability or obligation whatsoever with respect to the Mezzanine 7 Note or otherwise in connection with the payment of the Mezzanine 7 Loan; (ii) the Mezzanine 7 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 Junior Loan other than the Mezzanine 7 Loan; (iii) the Mezzanine 7 Loan does not grant to Mezzanine 7 Lender the status as a creditor of any Junior Borrower other than Mezzanine 7 Borrower; (iv) Mezzanine 7 Lender shall not assert, claim or raise as a defense, any such lien, encumbrance or security interest in the Separate Collateral securing any Junior Loan other than the Mezzanine 7 Loan; (v) Mezzanine 7 Lender shall not assert, claim or raise as a defense any status as a creditor of any Junior Borrower other than Mezzanine 7 Borrower in any action or proceeding, including any insolvency or bankruptcy proceeding commenced by or against Mezzanine 7 Borrower; and (vi) Mezzanine 7 Lender shall not assert, pursue, confirm or acquiesce in any way to any recharacterization of the Mezzanine 7 Loan as having conferred upon Mezzanine 7 Lender any lien or encumbrance upon, or security interest in, the Separate Collateral securing any Junior Loan other than the Mezzanine 7 Loan or as having conferred upon Mezzanine 7 Lender the status of a creditor of any Junior Borrower other than Mezzanine 7 Borrower.

(i) Mezzanine 8 Loan. Mezzanine 8 Lender hereby acknowledges that (i) no Junior Borrower other than the Mezzanine 8 Borrower will ever have any liability or obligation whatsoever with respect to the Mezzanine 8 Note or otherwise in connection with the payment of the Mezzanine 8 Loan; (ii) the Mezzanine 8 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 Junior Loan other than the Mezzanine 8 Loan; (iii) the Mezzanine 8 Loan does not grant to Mezzanine 8 Lender the status as a creditor of any Junior Borrower other than Mezzanine 8 Borrower; (iv) Mezzanine 8 Lender shall not assert, claim or raise as a defense, any such lien, encumbrance or security interest in the Separate Collateral securing any Junior Loan other than the Mezzanine 8 Loan;

USActive 7415617.4 -40-

(v) Mezzanine 8 Lender shall not assert, claim or raise as a defense any status as a creditor of any Junior Borrower other than Mezzanine 8 Borrower in any action or proceeding, including any insolvency or bankruptcy proceeding commenced by or against Mezzanine 8 Borrower; and (vi) Mezzanine 8 Lender shall not assert, pursue, confirm or acquiesce in any way to any recharacterization of the Mezzanine 8 Loan as having conferred upon Mezzanine 8 Lender any lien or encumbrance upon, or security interest in, the Separate Collateral securing any Junior Loan other than the Mezzanine 8 Loan or as having conferred upon Mezzanine 8 Lender the status of a creditor of any Junior Borrower other than Mezzanine 8 Borrower.

(i) Mezzanine 9 Loan. Mezzanine 9 Lender hereby acknowledges that (i) no Junior Borrower other than the Mezzanine 9 Borrower will ever have any liability or obligation whatsoever with respect to the Mezzanine 9 Note or otherwise in connection with the payment of the Mezzanine 9 Loan; (ii) the Mezzanine 9 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 Junior Loan other than the Mezzanine 9 Loan; (iii) the Mezzanine 9 Loan does not grant to Mezzanine 9 Lender the status as a creditor of any Junior Borrower other than Mezzanine 9 Borrower; (iv) Mezzanine 9 Lender shall not assert, claim or raise as a defense, any such lien, encumbrance or security interest in the Separate Collateral securing any Junior Loan other than the Mezzanine 9 Loan; (v) Mezzanine 9 Lender shall not assert, claim or raise as a defense any status as a creditor of any Junior Borrower other than Mezzanine 9 Borrower in any action or proceeding, including any insolvency or bankruptcy proceeding commenced by or against Mezzanine 9 Borrower; and (vi) Mezzanine 9 Lender shall not assert, pursue, confirm or acquiesce in any way to any recharacterization of the Mezzanine 9 Loan as having conferred upon Mezzanine 9 Lender any lien or encumbrance upon, or security interest in, the Separate Collateral securing any Junior Loan other than the Mezzanine 9 Loan or as having conferred upon Mezzanine 9 Lender the status of a creditor of any Junior Borrower other than Mezzanine 9 Borrower.

(k) Mezzanine 10 Loan. Mezzanine 10 Lender hereby acknowledges that (i) no Junior Borrower other than the Mezzanine 10 Borrower will ever have any liability or obligation whatsoever with respect to the Mezzanine 10 Note or otherwise in connection with the payment of the Mezzanine 10 Loan; (ii) the Mezzanine 10 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 Junior Loan other than the Mezzanine 10 Loan; (iii) the Mezzanine 10 Loan does not grant to Mezzanine 10 Lender the status as a creditor of any Junior Borrower other than Mezzanine 10 Borrower; (iv) Mezzanine 10 Lender shall not assert, claim or raise as a defense, any such lien, encumbrance or security interest in the Separate Collateral securing any Junior Loan other than the Mezzanine 10 Loan; (v) Mezzanine 10 Lender shall not assert, claim or raise as a defense any status as a creditor of any Junior Borrower other than Mezzanine 10 Borrower in any action or proceeding, including any insolvency or bankruptcy proceeding commenced by or against Mezzanine 10 Borrower; and (vi) Mezzanine 10 Lender shall not assert, pursue, confirm or acquiesce in any way to any recharacterization of the Mezzanine 10 Loan as having conferred upon Mezzanine 10 Lender any lien or encumbrance upon, or security interest in, the Separate Collateral securing any Junior Loan other than the Mezzanine 10 Loan or as having conferred upon Mezzanine 10 Lender the status of a creditor of any Junior Borrower other than Mezzanine 10 Borrower.

Mezzanine 11 Loan. Mezzanine 11 Lender hereby acknowledges that (i) no Junior Borrower other than the Mezzanine 11 Borrower will ever have any liability or obligation whatsoever with respect to the Mezzanine 11 Note or otherwise in USActive 7415617.4 -41-

connection with the payment of the Mezzanine 11 Loan; (ii) the Mezzanine 11 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 Junior Loan other than the Mezzanine 11 Loan; (iii) the Mezzanine 11 Loan does not grant to Mezzanine 11 Lender the status as a creditor of any Junior Borrower other than Mezzanine 11

Borrower; (iv) Mezzanine 11 Lender shall not assert, claim or raise as a defense, any such lien, encumbrance or security interest in the Separate Collateral securing any Junior Loan other than the Mezzanine 11 Loan; (v) Mezzanine 11 Lender shall not assert, claim or raise as a defense any status as a creditor of any Junior Borrower other than Mezzanine 11

Borrower in any action or proceeding, including any insolvency or bankruptcy proceeding commenced by or against Mezzanine 11 Borrower; and (vi) Mezzanine 11 Lender shall not assert, pursue, confirm or acquiesce in any way to any recharacterization of the Mezzanine 11 Loan as having conferred upon Mezzanine 11 Lender any lien or encumbrance upon, or security interest in, the Separate Collateral securing any Junior Loan other than the Mezzanine 11 Loan or as having conferred upon Mezzanine 11 Lender the status of a creditor of any Junior Borrower other than Mezzanine 11 Borrower.

(m) Intentionally Omitted.

(n) Junior Loans. Senior Lender hereby acknowledges that (i) no Junior Borrower will ever 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 Separate Collateral securing any Junior Loan; (iii) the Senior Loan does not grant to Senior Lender the status as a creditor of any Junior Borrower; (iv) Senior Lender shall not assert, claim or raise as a defense, any such lien, encumbrance or security interest in the Separate Collateral securing any Junior Loan; (v) Senior Lender shall not assert, claim or raise as a defense any status as a creditor of any Junior Borrower in any action or proceeding, including any insolvency or bankruptcy proceeding commenced by or against any Junior Borrower; and (vi) Senior Lender shall not 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 Separate Collateral securing any Junior Loan or as having conferred upon Senior Lender the status of a creditor of any Junior Borrower.


(a) Junior Lenders. Each Junior 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 Junior Loans and, subject to the terms and provisions of this Agreement, all of the terms and provisions of the Senior Loan Documents and each of the Junior Loan Documents; (ii) the execution, delivery and performance of the Senior Loan Documents and each of the Junior 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 Junior Loan Documents relating to the Junior Loan held by such Junior Lender; (iii) none of Senior Lender or any of the other Junior Lenders are under any obligation or duty to, nor has Senior Lender or any of the other Junior Lenders 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

USActive 7415617.4 -42-

disburses such proceeds and (b) the application of the proceeds of any Junior Loan other than the Junior Loan held by such Junior 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 any Junior Loan other than the Junior Loan held by such Junior Lender for purposes other than those provided in the related Junior Loan Documents shall not affect, impair or defeat the terms and provisions of this Agreement or the related Junior Loan Documents; and (v) any conditions precedent to such Junior Lender's consent to mezzanine or partner financing as set forth in the Junior Loan Documents or any other agreements with Junior Borrowers, as they apply to the Junior Loan Documents or the making of the Junior Loans, have been either satisfied or waived.

(b) 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 Junior Loans and, subject to the terms and provisions of this Agreement, all of the terms and provisions of the Junior Loan Documents; (ii) subject to the terms and provisions of this Agreement, the execution, delivery and performance of the Junior 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) none of the Junior Lenders are under any obligation or duty to, nor has any Junior Lender represented that it will, see to the application of the proceeds of the Junior Loans; (iv) any application or use of the proceeds of the Junior Loans for purposes other than those provided in the Junior Loan Documents shall not affect, impair or defeat the terms and provisions of this Agreement or the Junior Loan Documents; and (v) any conditions precedent to Senior Lender's consent to mezzanine or partner financing as set forth in the Senior Loan Documents or any other agreements with the Borrower, as they apply to the Junior Loan Documents or the making of the Junior Loans, have been either satisfied or waived. Notwithstanding any provisions herein to the contrary, Senior Lender agrees that no default or Event of Default under any of the Junior 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, the circumstances giving rise to a default or Event of Default under the Junior Loan Documents may independently give rise to a default or Event of Default under the Senior Loan Documents as provided for therein.


(a) Senior Lender. Senior Lender hereby represents and warrants to each of the Junior Lenders as follows:

(i) Exhibit A attached hereto and made a part hereof is a true, correct and complete listing of the Senior Loan Documents (including all amendments, modifications, replacements, restatements and supplements thereof) as of the date hereof. 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.

USActive 7415617.4 43-

(ii) 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.

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

(iv) Senior Lender has, independently and without reliance upon Junior Lenders and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to make the Senior Loan and to enter into this Agreement.

(v) 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) 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 (y) applicable bankruptcy, reorganization, insolvency and moratorium laws and (z) general principles of equity which may apply regardless of whether a proceeding is brought in law or in equity.

(viii) 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.

(ix) 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, if any, 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 material 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 material 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

USActive 7415617.4 44

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.

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

(b) Junior Lenders. Each Junior Lender hereby represents and warrants, for itself only, to Senior Lender and the other Junior Lenders as follows:

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

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

(iii) Such Junior 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 Junior Lender have been duly taken, and all such actions continue in full force and effect as of the date hereof.

(v) Such Junior Lender has duly executed and delivered this Agreement and this Agreement constitutes the legal, valid, and binding agreement of such Junior Lender enforceable against such Junior 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 the knowledge of such Junior Lender, 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 Junior Lender of this Agreement or consummation by such Junior 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 Junior Lender, (w) to such Junior 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

USActive 7415617.4 -45-

both, would constitute) a default under the terms of any material contract, mortgage, lease, bond, indenture, agreement, or other instrument to which such Junior Lender is a party or to which any of its properties are subject, (x) to such Junior 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 such Junior Lender pursuant to the terms of any

such material contract, mortgage, lease, bond, indenture, agreement, franchise, or other instrument (provided, however, that such Junior Lender shall have the right to grant a lien, charge, encumbrance, claim or security interest in the Junior Loan held by such Junior Lender or any portion thereof to a Loan Pledgee as contemplated by the provisions of Section 16), (y) violate any judgment, order, injunction, decree, or award of any court, arbitrator, administrative agency or governmental or regulatory body of which such Junior Lender has knowledge against, or binding upon, such Junior Lender or upon any of the securities, properties, assets, or business of such Junior Lender or (z) to such Junior Lender's knowledge, constitute a violation by such Junior Lender of any statute, law or regulation that is applicable to such Junior Lender.

(viii) Such Junior Lender is a "Qualified Transferee" pursuant to clause (v) of the definition thereof.

(c) Mezzanine 1 Lender. Mezzanine 1 Lender hereby represents and warrants as follows:

Exhibit B attached hereto and made a part hereof is a true, correct and complete listing of all of the Mezzanine 1 Loan Documents (including all amendments, modifications, replacements, restatements and supplements thereof) as of the date hereof To Mezzanine 1 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 Mezzanine 1 Loan Documents.

(ii) Mezzanine 1 Lender is the legal and beneficial owner of the entire Mezzanine 1 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 16.

(iii) The Mezzanine 1 Loan is not cross-defaulted with any loan other than the Senior Loan. The Premises do not secure any loan from Mezzanine 1 Lender to Mezzanine 1 Borrower or any other Affiliate of Borrower.

(d) Mezzanine 2 Lender. Mezzanine 2 Lender hereby represents and warrants as follows:

(i) Exhibit C attached hereto and made a part hereof is a true, correct and complete listing of all of the Mezzanine 2 Loan Documents (including all amendments, modifications, replacements, restatements and supplements thereof) as of the date hereof. To Mezzanine 2 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 Mezzanine 2 Loan Documents.

(ii) Mezzanine 2 Lender is the legal and beneficial owner of the entire Mezzanine 2 Loan free and clear of any lien, security interest, option or other

USActive 7415617.4 -46-

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 16.

(iii) The Mezzanine 2 Loan is not cross-defaulted with any loan other than the Senior Loan and the Mezzanine 1 Loan_ The Premises do not secure any loan from Mezzanine 2 Lender to Mezzanine 2 Borrower or any other Affiliate of Borrower.

(e) Mezzanine 3 Lender. Mezzanine 3 Lender hereby represents and warrants as follows:

(i) Exhibit D attached hereto and made a part hereof is a true, correct and complete listing of all of the Mezzanine 3 Loan Documents (including all amendments, modifications, replacements, restatements and supplements thereof) as of the date hereof. To Mezzanine 3 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 Mezzanine 3 Loan Documents.


(iii) The Mezzanine 3 Loan is not cross-defaulted with any loan other than the Senior Loan, the Mezzanine 1 Loan and the Mezzanine 2 Loan. The Premises do not secure any loan from Mezzanine 3 Lender to Mezzanine 3 Borrower or any other Affiliate of Borrower.

(0 Mezzanine 4 Lender. Mezzanine 4 Lender hereby represents and warrants as follows:

(i) Exhibit E attached hereto and made a part hereof is a true, correct and complete listing of all of the Mezzanine 4 Loan Documents (including all amendments, modifications, replacements, restatements and supplements thereof) as of the date hereof. To Mezzanine 4 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 Mezzanine 4 Loan Documents.


(iii) The Mezzanine 4 Loan is not cross-defaulted with any loan other than the Senior Loan, the Mezzanine 1 Loan, the Mezzanine 2 Loan and the Mezzanine 3 Loan. The Premises do not secure any loan from Mezzanine 4 Lender to Mezzanine 4 Borrower or any other Affiliate of Borrower.

USActive 7415617.4 -47-

as follows:

(i) Exhibit F attached hereto and made a part hereof is a true, correct and complete listing of all of the Mezzanine 5 Loan Documents (including all amendments, modifications, replacements, restatements and supplements thereof) as of the date hereof. To Mezzanine 5 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 Mezzanine 5 Loan Documents.


(iii) The Mezzanine 5 Loan is not cross-defaulted with any loan other than the Senior Loan, the Mezzanine 1 Loan, the Mezzanine 2 Loan, the Mezzanine 3 Loan and the Mezzanine 4 Loan. The Premises do not secure any loan from Mezzanine 5 Lender to Mezzanine 5 Borrower or any other Affiliate of Borrower.

(h) Mezzanine 6 Lender. Mezzanine 6 Lender hereby represents and warrants as follows:

(i) Exhibit G attached hereto and made a part hereof is a true, correct and complete listing of all of the Mezzanine 6 Loan Documents (including all amendments, modifications, replacements, restatements and supplements thereof) as of the date hereof. To Mezzanine 6 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 Mezzanine 6 Loan Documents.


(iii) The Mezzanine 6 Loan is not cross-defaulted with any loan other than the Senior Loan, the Mezzanine 1 Loan, the Mezzanine 2 Loan, the Mezzanine 3 Loan, the Mezzanine 4 Loan and the Mezzanine 5 Loan. The Premises do not secure any loan from Mezzanine 6 Lender to Mezzanine 6 Borrower or any other Affiliate of Borrower.

(i) Mezzanine 7 Lender. Mezzanine 7 Lender hereby represents and warrants as follows:

(i) Exhibit H attached hereto and made a part hereof is a true, correct and complete listing of all of the Mezzanine 7 Loan Documents (including all

(g) Mezzanine 5 Lender. Mezzanine 5 Lender hereby represents and

USActive 7415617.4 -48-

amendments, modifications, replacements, restatements and supplements thereof) as of the date hereof To Mezzanine 7 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 Mezzanine 7 Loan Documents.


(iii) The Mezzanine 7 Loan is not cross-defaulted with any loan other than the Senior Loan, the Mezzanine 1 Loan, the Mezzanine 2 Loan, the Mezzanine 3 Loan, the Mezzanine 4 Loan, the Mezzanine 5 Loan and the Mezzanine 6 Loan. The Premises do not secure any loan from Mezzanine 7 Lender to Mezzanine 7 Borrower or any other Affiliate of Borrower.

(j) Mezzanine 8 Lender. Mezzanine 8 Lender hereby represents and warrants as follows:

(i) Exhibit I attached hereto and made a part hereof is a true, correct and complete listing of all of the Mezzanine 8 Loan Documents (including all amendments, modifications, replacements, restatements and supplements thereof) as of the date hereof. To Mezzanine 8 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 Mezzanine 8 Loan Documents.


(iii) The Mezzanine 8 Loan is not cross-defaulted with any loan other than the Senior Loan, the Mezzanine 1 Loan, the Mezzanine 2 Loan, the Mezzanine 3 Loan, the Mezzanine 4 Loan, the Mezzanine 5 Loan, the Mezzanine 6 Loan and the Mezzanine 7 Loan. The Premises do not secure any loan from Mezzanine 8 Lender to Mezzanine 8 Borrower or any other Affiliate of Borrower.

(k) Mezzanine 9 Lender. Mezzanine 9 Lender hereby represents and warrants as follows:

(i) Exhibit J attached hereto and made a part hereof is a true, correct and complete listing of all of the Mezzanine 9 Loan Documents (including all amendments, modifications, replacements, restatements and supplements thereof) as of the date hereof. To Mezzanine 9 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 Mezzanine 9 Loan Documents.

(ii) Mezzanine 9 Lender is the legal and beneficial owner of the

USActive 7415617.4 -49-

entire Mezzanine 9 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 16.

(iii) The Mezzanine 9 Loan is not cross-defaulted with any loan other than the Senior Loan, the Mezzanine 1 Loan, the Mezzanine 2 Loan, the Mezzanine 3 Loan, the Mezzanine 4 Loan, the Mezzanine 5 Loan, the Mezzanine 6 Loan, the Mezzanine 7 Loan and the Mezzanine 8 Loan. The Premises do not secure any loan from Mezzanine 9 Lender to Mezzanine 9 Borrower or any other Affiliate of Borrower.

(1) Mezzanine 10 Lender. Mezzanine 10 Lender hereby represents and warrants as follows:

(i) Exhibit K attached hereto and made a part hereof is a true, correct and complete listing of all of the Mezzanine 10 Loan Documents (including all amendments, modifications, replacements, restatements and supplements thereof) as of the date hereof. To Mezzanine 10 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 Mezzanine 10 Loan Documents.


(iii) The Mezzanine 10 Loan is not cross-defaulted with any loan other than the Senior Loan, the Mezzanine 1 Loan, the Mezzanine 2 Loan, the Mezzanine 3 Loan, the Mezzanine 4 Loan, the Mezzanine 5 Loan, the Mezzanine 6 Loan, the Mezzanine 7 Loan, the Mezzanine 8 Loan and the Mezzanine 9 Loan. The Premises do not secure any loan from Mezzanine 10 Lender to Mezzanine 10 Borrower or any other Affiliate of Borrower.

(m) Mezzanine 11 Lender. Mezzanine 11 Lender hereby represents and warrants as follows:

(i) Exhibit L attached hereto and made a part hereof is a true, correct and complete listing of all of the Mezzanine 11 Loan Documents (including all amendments, modifications, replacements, restatements and supplements thereof) as of the date hereof. To Mezzanine 11 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 Mezzanine 11 Loan Documents.


USActive 7415617.4 -50-

(iii) The Mezzanine 11 Loan is not cross-defaulted with any loan other than the Senior Loan, the Mezzanine 1 Loan, the Mezzanine 2 Loan, the Mezzanine 3 Loan, the

Mezzanine 4 Loan, the Mezzanine 5 Loan, the Mezzanine 6 Loan, the Mezzanine 7 Loan, the Mezzanine 8 Loan, the Mezzanine 9 Loan and the Mezzanine 10 Loan. The Premises do not secure any loan from Mezzanine 11 Lender to Mezzanine 11 Borrower or any other Affiliate of Borrower.

Section 5. Transfer of Junior Loan or Senior Loan.

(a) Junior Lender. Notwithstanding the provisions of Section 9 or any other provisions hereof (including the provisions of Section 12(a)(iii) hereof), no Junior Lender or any Loan Pledgee with respect to a Junior Loan shall Transfer in the aggregate, taking into account all prior Transfers, more than forty nine percent (49%) of its respective beneficial interest in its respective Junior Loan to any Person that is not a Qualified Transferee or a Loan Pledgee, without receiving a Rating Agency Confirmation (in which case the related transferee shall thereafter be deemed to be a "Qualified Transferee" for all purposes of this Agreement), and in connection with any Transfer to a Qualified Transferee, any such Junior Lender shall provide to Senior Lender, the other Junior Lenders and the Rating Agencies within three (3) Business Days of such Transfer a certification that such Transfer has been made to a Qualified Transferee or a Loan Pledgee. Any such transferee (other than a Loan Pledgee or a participant in connection with a participation of a portion of the applicable Junior Loan), must assume in writing the obligations of such Junior Lender hereunder arising from and after the date of such Transfer (and such Junior Lender shall remain liable for its obligations hereunder arising prior to the date of such Transfer) and agree to be bound by the terms and provisions hereof. Such proposed transferee (other than a Loan Pledgee (prior to its realization on the Pledged Junior Loan) or a participant in connection with a participation of a portion of the applicable Junior Loan) shall also remake each of the representations and warranties contained herein which are applicable to the Junior Loan being acquired for the benefit of the Senior Lender and the Junior Lenders (which in the case of the representations in Sections 4(c)(i), 4(d)(i), 4(e)(i), 4(f)(i), 4(g)(i)., 4(h)(i), 4(j)(i), 4(k)(i), 4(1)(i), 4(m)(i) and 4(n)(i), as applicable, shall be limited to the knowledge of such transferee).

(b) Senior Junior Lender. Each Senior Junior Lender may, from time to time, in its sole discretion Transfer all or any part of the applicable Senior Junior Loan or any interest therein as permitted herein without the consent of any applicable Subordinate Junior Lender but subject to the other provisions of this Section 5, and, notwithstanding any such Transfer or subsequent Transfer by a transferee of such Senior Junior Lender, such Senior Junior Loan and such Senior Junior Loan Documents shall be and remain a senior obligation with respect to the applicable Subordinate Junior Loans in the respects set forth in this Agreement and in accordance with the terms and provisions of this Agreement; provided, however, in no event shall any such Transfer be to Borrower or to any Affiliate of Borrower (including, without limitation, any Junior Borrower that is an Affiliate of Borrower), provided however that the aforesaid prohibition shall not apply to any Junior Lender or an Affiliate thereof that has acquired title to Equity Collateral.


(c) Directing Junior Lender. If more than one Person shall hold a direct interest in a Junior Loan, the holder(s) of more than fifty percent (50%) of the principal amount of such Junior Loan (unless the applicable participation agreement or co-lender agreement among the holders of such Junior Loan provides a different designation mechanism, which

different mechanism shall be specified in such notice and upon which Senior Lender and each Junior Lender shall be entitled to rely) shall designate by written notice to Senior Lender and the other Junior Lenders one of such Persons (a "Directing Junior Lender") to act on behalf of all such Persons holding an interest in such Junior Loan. Except as otherwise agreed in writing by the Senior Lender and Junior Lenders, the Directing Junior Lender shall have the sole right to receive any notices which are required to be given or which may be given to the Junior Lender holding the applicable Junior Loan pursuant to this Agreement and to exercise the rights and power given to the Junior Lender holding the applicable Junior Loan hereunder, including any approval rights of the Junior Lender holding the applicable Junior Loan; provided, that until a Directing Junior Lender has been so designated, the last Person known to the Senior Lender and the other Junior Lenders to hold more than a fifty percent (50%) direct interest in the applicable Junior Loan shall be deemed to be the Directing Junior Lender for such Junior Loan. Once a Directing Junior Lender has been designated hereunder with respect to a Junior Loan, Senior Lender and each other Junior Lender shall be entitled to rely on such designation until it has received written notice from the holder(s) of more than fifty percent (50%) of the principal amount of the applicable Junior Loan of the designation of a different Person to act as the Directing Junior Lender for such Junior Loan (unless the applicable participation agreement or co-lender agreement among the holders of such Junior Loan provides a different designation mechanism, which different mechanism shall be specified in such notice and upon which Senior Lender and each Junior Lender shall be entitled to rely). Notwithstanding any provision of this Section 5(c) to the contrary, each Person holding an interest in a Junior Loan shall be deemed to be a Junior Lender with respect to the applicable Junior Loan for purposes of the rights and restrictions contained in Section 5(a), (b) and (c), and shall be subject to the rights and restrictions thereof with respect to such Person's interest in the applicable Junior Loan.

(d) Senior Lender. Senior Lender may, from time to time, in its sole discretion, Transfer all or any of the Senior Loan or any interest therein in accordance with the terms of this Agreement, provided that any such Transferee (other than a Loan Pledgee that has not taken title to the Separate Collateral or, in connection with a Securitization, provided the Transfer is made subject to this Agreement) assumes in writing the obligations of Senior Lender hereunder accruing from and after such Transfer and (except in connection with a Securitization) agrees to be bound by the terms and provisions hereof, 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 Junior Loan and the Junior Loan Documents in accordance with the terms and provisions of this Agreement. Senior Lender agrees that Senior Lender will not Transfer the Senior Loan to Borrower or any Affiliate of Borrower without the consent of all the Junior Lenders, which may be withheld in the Junior Lenders' sole discretion.

Section 6. Foreclosure of Separate Collateral. (a) Notwithstanding the provisions of Section 8 or any other provisions hereof (including the provisions of Section 12(a)(iii) hereof), no Junior Lender nor any Loan Pledgee with respect to a Junior Loan shall complete a foreclosure or otherwise realize upon any of its Equity Collateral USActive 7415617.4 -52-

(or accept title to such Equity Collateral in lieu of foreclosure, including, without limitation, sell or otherwise transfer the Equity Collateral) unless (i) the transferee of the title to such Equity Collateral is a Qualified Transferee, (ii) the Premises will be managed by a Qualified Manager within thirty (30) days after the transfer of title, (iii) there is delivered at the transfer of title a non-consolidation opinion

which has been reviewed and approved by counsel to such Junior Lender as being in a form which would be in such counsel's view acceptable to the Rating Agencies, and within ten (10) Business Days after the transfer, a non-consolidation opinion acceptable to the Rating Agencies and the applicable Senior Junior Lenders, (iv) the existing cash management system is maintained, to the extent required under the Senior Loan Documents and the applicable Senior Junior Loan Documents, (v) immediately following such foreclosure reserves for taxes, debt service, capital repair and improvement expenses, tenant improvement expenses, leasing commissions and operating expenses, insurance and ground rents, if any, are, to the extent required under the Senior Loan Documents and the applicable Senior Junior Loan Documents, maintained, (vi) after giving effect to such Transfer, on and after the date of such Transfer, Borrower and the applicable Junior Borrower (to the extent required by the Senior Loan Documents and the applicable Senior Junior Loan Documents) and the transferee of the Equity Collateral are Special Purpose Entities, and (vii) notice of the Transfer and an officer's certificate from an officer of the applicable Junior Lender certifying that all conditions set forth in clauses (i) through (vi) above have been satisfied must be provided to Senior Lender, the applicable Senior Junior Lenders and the Rating Agencies upon the satisfaction of the requirements set forth above (which shall be within thirty (30) days subsequent to the Transfer). In the event that such Transfer results in the explicit release from future liability of any guarantor, indernnitor, pledgor, or other obligor (each, a "Third Party Obligor"), under the Senior Loan and/or any Senior Junior Loan, or any other guaranty, pledge or indemnity which may constitute a Senior Loan Document and/or a Senior Junior Loan Document (each, a "Third Party Agreement"), such transferee or an Affiliate thereof reasonably satisfactory to Senior Lender and the applicable Senior Junior Lender shall: (A) execute and deliver to each of Senior Lender and/or the applicable Senior Junior Lender a substitute Third Party Agreement from a substitute Third Party Obligor reasonably acceptable to Senior Lender and each applicable Senior Junior Lender, in each case in a form substantially similar to the original Third Party Agreement that it is replacing or otherwise in form reasonably acceptable to Senior Lender and each applicable Senior Junior Lender, pursuant to which the substitute Third Party Obligor shall undertake the obligations set forth therein from and after the date of such Transfer (and only to the extent arising from and after the date of such Transfer), and (B) if there are Certificates then outstanding, deliver (or cause to be delivered) to Senior Lender 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); provided, however, that any substitute Third Party Obligor which is a Qualified Transferee shall be deemed satisfactory to Senior Lender and the applicable Senior Junior Lender.

(b) Nothing contained herein shall limit or restrict the right of any Junior Lender to exercise its rights and remedies, in law or in equity, or otherwise, in order to realize on any of its Separate Collateral that is not Equity Collateral (including exercising any remedy against any guarantor (a "Guarantor") pursuant to any guaranty

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granted to any Junior Lender as additional collateral to secure the obligations under the applicable Junior Loan Documents) (a "Guaranty Claim").

(c) In the event a Junior Lender that is a Qualified Transferee or any Qualified Transferee purchaser at a UCC sale obtains title to the Equity Collateral, each of Senior Lender

and any Senior Junior Lender acknowledges and agrees that any transfer or assumption fee in the Senior Loan Agreement or any Senior Junior Loan Agreement shall be waived as a condition to such Transfer however, all reasonable expenses incurred by Senior Lender and by any Senior Junior Lender in connection with any such Transfer shall be paid by such Junior Lender and any such Transfer shall not constitute a breach or default under the Senior Loan Documents or any Senior Junior Loan Documents, provided that such action is enforced in accordance with the terms and conditions of this Agreement, including Section 6(a). Senior Lender and any applicable Senior Junior Lender shall not impose any unreasonable delay in connection with any such Transfer.

(d) To the extent that any Qualified Transferee acquires the Equity Collateral pledged to a Junior Lender pursuant to the Junior Loan Documents in accordance with the provisions and conditions of this Agreement (including, but not limited to Section 12 hereof), 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) the applicable Senior Junior Loans and the terms, conditions and provisions of the applicable Senior Junior Loan Documents, in each case for the balance of the term thereof, which shall not be accelerated by Senior Lender or the related Senior Junior Lender 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) the applicable Senior Junior Borrowers, in each case to reaffirm in writing, subject to such exculpatory provisions as shall be set forth in the Senior Loan Documents and the related Senior Junior Loan Documents, as applicable, all of the terms, conditions and provisions of the Senior Loan Documents and the related Senior Junior Loan Documents, as applicable, on Borrower's or the applicable Senior Junior Borrower's, as applicable, part to be performed and (B) all defaults under (1) the Senior Loan and (2) the applicable Senior Junior Loans, in each case which 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 can only be cured by the Junior Lender, following its acquisition of the Equity Collateral, the same shall be cured by the Junior Lender prior to the expiration of the applicable Extended Non-Monetary Cure Period.

(e) Nothing contained in Section 5(a) or this Section 6 is intended (i) to limit any Loan Pledgee's right under its financing documents with any Junior Lender to foreclose against such Junior Lender, provided that such Loan Pledgee complies with the applicable provisions of Section 16, 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 applicable Junior Borrower's interest in the Separate Collateral, provided that Loan Pledgee complies with the applicable provisions of Section 5 and this Section 6.

Section 7. Notice of Rating Confirmation. Each Junior Lender shall promptly notify Senior Lender and each other Junior Lender of any intended action relating to its respective Junior Loan which would require Rating Agency Confirmation hereunder and shall cooperate with Senior Lender in obtaining such confirmation. Senior Lender promptly shall notify Junior Lenders of any intended action relating to the Senior Loan

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which would so require Rating Agency Confirmation and shall cooperate with Junior Lenders in obtaining such confirmation. The party whose actions necessitate or require Rating Agency Confirmation shall pay all fees and expenses of the Rating Agencies in connection with such request.

Section 8. Modifications, Amendments, etc. (a) Senior Lender shall have the right without the consent of any Junior 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 any of the Senior Loan Documents provided that no such Senior Loan Modification shall (i) increase the interest rate or principal amount of the Senior Loan except for increases in principal to cover workout costs and enforcement costs (including closing costs in connection therewith) and Protective Advances, (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 (other than by acceleration of the Senior Loan after the lapse of any cure periods granted to any Junior Lender pursuant to the terms of this Agreement), (iv) increase the amount of any principal payments required under the Senior Loan or modify any related principal amortization schedule in a manner which would increase the amount of principal payments except if increased in connection with (i) above, (v) convert or exchange the Senior Loan into or for any other indebtedness or subordinate any of the Senior Loan to any indebtedness of Borrower, (vi) 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, (vii) modify, waive or amend the terms and provisions of the Senior Loan Cash Management Agreement or the Senior Loan Agreement with respect to (1) the definitions of "O&M Operative Period", "Debt Service", or "Debt Service Coverage" (as such terms are defined in the Senior Loan Agreement and/or Cash Management Agreement), and any of the terms used within such definitions or the covenants relating thereto, (2) any reserves or escrows, including, without limitation, those for taxes, insurance, debt service, repairs, replacements and ground rent, if any, or any provisions regarding the release of funds from escrow (or waive compliance therewith) or reduce or, except as may be reasonably required, increase monthly escrow deposit amounts, (3) any future funding obligation or additional advances of loan proceeds, if any, or (4) the amount of, manner, timing, method of the application of, or order of priority in payment, of payments under the Senior Loan Documents or the Junior Loan Documents, (viii) cross default the Senior Loan with or subordinate the Senior Loan to any other indebtedness, (ix) obtain any equity interest in Borrower or any Junior Borrower, or any contingent interest, additional interest or so called "kicker" measured on the basis of the cash flow or appreciation of the Premises, (x) intentionally omitted, (xi) waive, amend or modify the transfer or encumbrance provisions in the Senior Loan Documents, including, without limitation, modifying the Release Amount, (xii) spread the lien of any Mortgage to encumber additional real property, (xiii) 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 impose any prepayment fee or premium or yield or spread maintenance charge in connection with a prepayment of the Senior Loan when none is now required or after the current maturity date of the Senior Loan or increase the amount of such prepayment fee, premium or yield or spread maintenance charge, (xiv) modify, waive or amend, in any material respect, the terms and provisions of Section 3.01 of the Senior Loan Agreement (including any deductibles, limits, USActive 7415617.4 -55-

qualifications of insurers or terrorism insurance requirements), (xv) release its lien on any material portion of the collateral originally granted under the Senior Loan Documents (except as may be required in accordance with the terms of the Senior Loan Documents), (xvi) amend or modify the definition of Event of Default under the Senior Loan Documents, (xvii) impose any additional fees upon Borrower, (xviii) add provisions which would prohibit or restrict any Junior

Lender (or any transferee of the interest in any Junior Loan) from acquiring the interest of the applicable Junior Borrower by foreclosure of the applicable Equity Collateral, (xix) impose any financial covenants on Borrower (or if such covenants exist, impose more restrictive financial covenants on Borrower); provided, however, in no event shall Senior Lender be obligated to get any Junior Lender's consent to a Senior Loan Modification prohibited above in the case of a workout or other surrender, extension, compromise, release, renewal, or indulgence relating to the Senior Loan following the occurrence and continuance of an Event of Default under the Senior Loan Documents, except, that (A) under no condition shall the principal balance of Senior Loan be increased in violation of item (i) above (with respect to increase in principal amount only) or the modifications described in clauses (ix), (xiii) or (xvii) (except for any workout fee payable to the Servicer of the Senior Loan following a Securitization) above be made, without in each case the prior written consent of each of the Junior Lenders and (B) during any Monetary Cure Period, Extended Monetary Cure Period, Non-Monetary Cure Period or Extended Non-Monetary Cure Period, provided that each Junior Lender is in compliance with the provisions of Section 6 above, Senior Lender will not perform the modifications described in clauses (i) through (xix) above without the prior written consent of each Junior Lender. In addition and notwithstanding the foregoing provisions of this Section 8(a), any amounts funded by Senior Lender pursuant to the Senior Loan Documents as a result of (1) the making of any Protective Advances or other advances by Senior Lender expressly permitted by the terms of the Senior Loan Documents, or (2) interest accruals or accretions provided for in the Senior Loan Documents as of the date hereof and any compounding thereof (including default interest), shall not be deemed to contravene this Section 8(a); for the purposes of this sentence the term "Protective Advances" shall include all advances where the sums advanced are advanced for the benefit of the Premises whether or not expressly provided for in the Senior Loan Documents.

(b) Each Subordinate Junior Lender shall have the right without the consent of Senior Lender or any Senior Junior Lender, in each instance to enter into any amendment, deferral, extension, modification, increase, renewal, replacement, consolidation, supplement or waiver (collectively, a "Junior Loan Modification") of its Junior Loan or Junior Loan Documents, provided, that without first receiving the consent of Senior Lender and any applicable Senior Junior Lender, no such Junior Loan Modification shall: (i) increase the interest rate or principal amount of the applicable Junior Loan except for increases in principal to cover workout costs and enforcement costs (including closing costs in connection therewith) and Protective Advances, (ii) increase in any other material respect any monetary obligations of the applicable Junior Borrower under the applicable Junior Loan Documents, (iii) shorten the scheduled maturity date of the applicable Junior Loan (other than by an acceleration of such Junior Loan after the lapse of any cure periods granted to any Subordinate Junior Lender pursuant to the terms of this Agreement), (iv) increase the amount of any principal payments required under the applicable Junior Loan or modify any related principal amortization schedule in a manner which would increase the amount of principal payments except if increased in connection with (i) above, (v) convert or exchange the applicable Junior Loan into or for

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any other indebtedness, or subordinate any of such Junior Loan, to any indebtedness of the applicable Junior Borrower, (vi) accept a grant of any lien on or security interest in any collateral or property of the applicable Junior Borrower or any other Person not originally granted or contemplated to be granted under the applicable Junior Loan Documents, unless (x) such collateral or property is owned by a Person other than such Junior Borrower and is not collateral for the Senior Loan or any Senior Junior Loan and (y) the consent of Senior Lender and the

applicable Senior Junior Lender, is obtained if such consent is required pursuant to the Senior Loan Documents and the applicable Senior Junior Loan Documents, (vii) obtain any equity interest in Borrower or any Junior Borrower other than the applicable Junior Borrower, or any contingent interest, additional interest or so called "kicker", (viii) spread the lien and security interest of the Pledge Agreement to encumber additional collateral, (ix) cross-default the applicable Junior Loan with any other indebtedness other than the Senior Loan and any Senior Junior Loan, or (x) waive, amend or modify the transfer or encumbrance provisions in the applicable Junior Loan Documents, including, without limitation, modifying the Release Amount. In addition and notwithstanding the foregoing provisions of this Section 8(b), (a) any amounts funded by a Junior Lender under its respective Junior Loan Documents as a result of (1) the making of any Protective Advances or other advances by such Junior Lender expressly permitted by the terms of its Junior Loan Documents as of the date hereof or (2) interest accruals or accretions and any compounding thereof (including default interest) shall not be deemed to contravene this Section 8(b). Notwithstanding the foregoing, in addressing an Event of Default that has occurred under any Junior Loan Documents, or if a Junior Lender in good faith believes that a Default (as defined in the applicable Junior Loan Agreement) has occurred and Senior Lender and the applicable Senior Junior Lenders, in their reasonable discretion, concur that such Default under the applicable Junior Loan has occurred, the applicable Junior Lender shall be permitted to amend or modify the applicable Junior Loan in connection with a workout or other surrender, compromise, release, renewal or modification of such Junior Loan, provided that under no conditions shall the modifications described in clause (i) above (with respect to increases in principal amounts only), clause (ii), clause (iii) (with respect to shortening the maturity only), clause (iv), clause (v), or clause (vii) above be made without the prior written consent of Senior Lender and the applicable Senior Junior Lenders, and provided further that any such amendment or modification shall not (x) increase the per annum rate at which interest is payable under the applicable Junior Loan, unless such additional interest accrues and is contingent and if no Event of Default under the Senior Loan and any applicable Senior Junior Loans exists and no O&M Operative Period is in effect, then such additional interest may be paid from excess net cash flow that would otherwise be payable to Borrower or any Junior Borrower, but if an O&M Operative Period is in effect, then only interest accruing at the original rate under the applicable Junior Loan Documents as of the Closing Date may be paid to such Junior Lender, or (y) require any specified sums as amortization payments other than as now provided under the applicable Junior Loan Documents (however, such Junior Lender will be permitted to retain excess net cash flow that would otherwise be payable to Borrower or any applicable Junior Borrower and to apply such cash flow to the amortization of the principal balance of the applicable Junior Loan or to deferred interest under the applicable Junior Loan, subject to any prior right to such funds under the Senior Loan Cash Management Agreement and any applicable Senior Junior Cash Management Agreement).

(c) Each Senior Junior Lender shall have the right without the consent of any applicable Subordinate Junior Lender, in each instance to enter into any amendment, deferral, extension, modification, increase, renewal, replacement, consolidation,

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supplement or waiver (collectively, a "Senior Junior Loan Modification") of its Senior Junior Loan or Senior Junior Loan Documents, provided, that without first receiving the consent of any applicable Subordinate Junior Lender, no such Senior Junior Loan Modification shall: (i) increase the interest rate or principal amount of the applicable Senior Junior Loan except for increases in principal to cover workout costs and enforcement costs (including closing costs in connection

therewith) and Protective Advances, (ii) increase in any other material respect any monetary obligations of the applicable Senior Junior Borrower under the applicable Senior Junior Loan Documents, (iii) shorten the scheduled maturity date of the applicable Senior Junior Loan (other than by acceleration of such Senior Junior Loan after the lapse of any cure periods granted to any Subordinate Junior Lender pursuant to the terms of this Agreement), (iv) increase the amount of any principal payments required under the applicable Senior Junior Loan or modify any related principal amortization schedule in a manner which would increase the amount of principal payments except if increased in connection with (i) above, (v) convert or exchange the applicable Senior Junior Loan into or for any other indebtedness, or subordinate any of such Senior Junior Loan, to any indebtedness of the applicable Senior Junior Borrower, (vi) accept a grant of any lien on or security interest in any collateral or property of the applicable Senior Junior Borrower or any other Person not originally granted or contemplated to be granted under the applicable Senior Junior Loan Documents, (vii) modify or amend the terms and provisions of the applicable Senior Junior Loan Cash Management Agreement or the applicable Senior Junior Loan Agreement with respect to (1) the definitions of "O&M Operative Period", "Debt Service" or "Debt Service Coverage" (as such terms are defined in the applicable Senior Junior Loan Agreement), and any of the terms used within such definitions or the covenants relating thereto, (2) any reserves or escrows, including, without limitation, those for taxes, insurance, debt service, repairs, replacements and ground rent, if any, or any provisions regarding the release of funds from escrow (or waive compliance therewith) or reduce or, except as may be reasonably required, increase monthly escrow deposit amounts, (3) any future funding obligation or additional advances of loan proceeds, if any or (4) the amount of, manner, timing, method of the application of, or order of priority in payment, of payments under the applicable Senior Junior Loan Documents or the applicable Subordinate Junior Loan Documents, (viii) cross default or subordinate the applicable Senior Junior Loan to any other indebtedness other than the Senior Loan and any more senior Senior Junior Loan, (ix) obtain any equity interest in Borrower or any Junior Borrower other than pursuant to an Equity Collateral Enforcement Action permitted hereunder, or any contingent interest, additional interest or so called "kicker", (x) intentionally omitted, (xi) waive, amend or modify the transfer or encumbrance provisions in the applicable Senior Junior Loan Documents, including, without limitation, modifying the Release Amount, (xii) spread the lien of the applicable Pledge Agreement to encumber additional collateral, (xiii) 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 impose any prepayment fee or premium or yield or spread maintenance charge in connection with a prepayment of the applicable Senior Junior Loan when none is now required or after the current maturity date of the applicable Senior Junior Loan or increase the amount of such prepayment fee, premium or yield or spread maintenance charge, (xiv) modify, waive or amend, in any material respect, the terms and provisions of Section 3.01 of the applicable Senior Junior Loan Agreement, (xv) release its lien on any material portion of the collateral originally granted under the applicable Senior Junior Loan Documents (except as may be required in accordance with the terms of the USAclive 7415617.4 -58-

Senior Loan Documents, the more senior Senior Junior Loan Documents or the applicable Senior Junior Loan Documents), (xvi) amend or modify the definition of Event of Default under the applicable Senior Junior Loan Documents, (xvii) impose any additional fees upon the applicable Senior Junior Borrower, (xviii) add provisions which would prohibit or restrict any other Junior Lender (or any transferee of an interest in any other Junior Loan) from acquiring the interest of the applicable Senior Junior Borrower by foreclosure of the applicable

Equity Collateral or (xix) impose any financial covenants on the applicable Senior Junior Borrower (or if such covenants exist, impose more restrictive financial covenants on the Senior Junior Borrower). In addition and notwithstanding the foregoing provisions of this Section 8(c), (a) any amounts funded by a Senior Junior Lender under its respective Senior Junior Loan Documents as a result of (1) the making of any Protective Advances or other advances by such Senior Junior Lender expressly permitted by the terms of its Senior Junior Loan Documents as of the date hereof or (2) interest accruals or accretions and any compounding thereof (including default interest) shall not be deemed to contravene this Section 8(c); provided, however, in no event shall the applicable Senior Junior Lender be obligated to get any Subordinate Junior Lender's consent to a Senior Junior Loan Modification prohibited above in the case of a workout or other surrender, extension, compromise, release, renewal, or indulgence relating to the applicable Senior Junior Loan following the occurrence and continuance of an Event of Default under the applicable Senior Junior Loan Documents, except, that (A) under no condition shall the principal balance of the applicable Senior Junior Loan be increased in violation of item (i) above (with respect to increase in principal amount only) or the provisions of item (viii), (xi) (with respect to permitting additional indebtedness), (xiii), (xvii), (xviii) or (xix) above be violated, without in each case the prior written consent of each of the Subordinate Junior Lenders and (B) during any Junior Loan Monetary Cure Period, Junior Loan Extended Monetary Cure Period, Junior Loan Non-Monetary Cure Period or Junior Loan Extended Non-Monetary Cure Period, provided that each Subordinate Junior Lender is in compliance with the provisions of Section 6 above, the applicable Senior Junior Lender will not violate the other provisions of items (i) through (xviii) above without the prior written consent of each Subordinate Junior Lender.

(d) Senior Lender shall deliver to Junior Lenders promptly upon execution thereof, copies of any and all modifications, amendments, extensions, consolidations, spreaders, restatements, alterations, changes or revisions to any one or more of the Senior Loan Documents (including, without limitation, any side letters, waivers or consents entered into, executed or delivered by Senior Lender).

(e) Each Junior Lender shall deliver to Senior Lender and the other Junior Lenders promptly upon execution thereof, copies of any and all modifications, amendments, extensions, consolidations, spreaders, restatements, alterations, changes or revisions to any one or more of its respective Junior Loan Documents (including, without limitation, any side letters, waivers or consents entered into, executed or delivered by such Junior Lender).

(f) Each Junior Lender shall consent to the amendment or modification of a Junior Borrower's organizational documents upon request by Senior Lender and/or the applicable Senior Junior Lender in order to satisfy requests made by Rating Agencies rating any Certificates, provided that such amendment or modification does not have a material adverse effect on the Junior Loan and the costs and expenses thereof are not payable by such Junior Lender.

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Section 9. Subordination of Junior Loans and Junior Loan Documents. (a) Each Junior Lender hereby subordinates and makes junior the Junior Loan held by such Junior Lender, the related Junior Loan Documents and the liens and security interests created thereby, and all rights, remedies, terms and covenants contained therein to (i) the Senior Loan and the applicable Senior Junior Loans, (ii) the liens and security interests created by the Senior

Loan Documents and the applicable Senior Junior Loan Documents, and (iii) all of the terms, covenants, conditions, rights and remedies contained in the Senior Loan Documents and the applicable Senior Junior Loan Documents and no extensions, modifications:, consolidations, supplements, amendments, replacements and restatements of and/or to the Senior Loan Documents or the applicable Senior Junior Loan Documents that are permitted by Section 8 shall affect the subordination thereof as set forth in this Section 9. Senior Lender and the Junior Lenders each hereby acknowledge and agree except as set forth in Section 6(b) hereof; that:

(A) Senior Lender has not acquired, and shall not hereafter acquire, any lien on, or any other interest whatsoever in the Separate Collateral relating to any Junior Loan that is held by the related Junior Lender, or any part thereof and that collection from such Separate Collateral (including any Guaranty Claim), the exercise of remedies and realization upon such Separate Collateral by such Junior Lender or any applicable Loan Pledgee and the application of proceeds therefrom as such Junior Lender deems appropriate in its discretion are, except as set forth in Section 6(b) hereof, expressly permitted and shall not constitute a default or an event of default under this Agreement, the Senior Loan Documents or the applicable Junior Loan Documents;

(B) No other property of a Junior Borrower is collateral for the Senior Loan;

(C) No Senior Junior Lender has acquired, and no Senior Junior Lender shall hereafter acquire, any lien on, or any other interest whatsoever in the Separate Collateral relating solely to any Subordinate Junior Loan that is held by the related Subordinate Junior Lender, or any part thereof and that collection from any such Separate Collateral (including any Guaranty Claim), the exercise of remedies and realization upon such Separate Collateral by such Subordinate Junior Lender or any applicable Loan Pledgee and the application of proceeds therefrom as such Subordinate Junior Lender deems appropriate in its discretion are, except as set forth in Section 6(b) hereof; expressly permitted and shall not constitute a default or an event of default under this Agreement, the applicable Senior Junior Loan Documents or the applicable Subordinate Junior Loan Documents;

(D) No property of the applicable Subordinate Junior Borrower is collateral for any Senior Junior Loan;

(E) No Junior Borrower has any legal obligations to pay the Senior Loan or to render any other performance under the Senior Loan Documents and no Subordinate Junior Borrower has any legal obligations to pay any Senior Junior Loan or to render any other performance under the Junior Loan Documents for a Senior Junior Loan; and

USActive 7415617.4 -60-

(F) Senior Lender is not a creditor of any Junior Borrower and no more senior Senior Junior Lender is a creditor of any other more junior Subordinate Junior Borrower.

(b) Except with respect to the Separate Collateral or any Guaranty, every document and instrument included within the Junior Loan Documents shall be subject and subordinate to each and every document and instrument included within the Senior Loan Documents and the applicable Senior Junior Loan Documents and all extensions, modifications, consolidations, supplements, amendments, replacements and restatements of and/or to the Senior Loan Documents and the applicable Senior Junior Loan Documents to the extent such extensions, modifications, consolidations, supplements, amendments, replacements and restatements are permitted by the terms hereof.

Section 10. Payment Subordination. (a) Except (i) as otherwise expressly provided in this Agreement and (ii) in connection with the exercise by a Junior Lender of its rights and remedies with respect to the Separate Collateral (or any Guaranty Claim) in accordance with the terms of this Agreement, (x) all of such Junior Lender's rights to payment of the Junior Loan held by such Junior Lender and the obligations evidenced by the related Junior Loan Documents are hereby subordinated to all of Senior Lender's rights to payment by Borrower of the Senior Loan and the obligations secured by the Senior Loan Documents, and such Junior Lender shall not accept or receive payments (including, without limitation, whether in cash or other property and whether received directly, indirectly or by set-off, counterclaim or otherwise, but excluding, the proceeds received from any bona-fide third party in connection with a secured party sale of such Junior Lender's Equity Collateral, which may be retained by such Junior Lender) from Borrower and/or from the Premises prior to the date that all of the Senior Loan Liabilities then due to Senior Lender under the Senior Loan Documents are paid in full and (A all of such Junior Lender's rights to payment of the Junior Loan held by such Junior Lender and the obligations evidenced by the related Junior Loan Documents are hereby subordinated to all of the applicable Senior Junior Lender's rights to payment by the applicable Senior Junior Borrowers of the applicable Senior Junior Loans and the obligations secured by the applicable Senior Junior Loan Documents, and such Junior Lender shall not accept or receive payments (including, without limitation, whether in cash or other property and whether received directly, indirectly or by set off, counterclaim or otherwise, but excluding, the proceeds received from any bona-fide third party in connection with a secured party sale of such Junior Lender's Equity Collateral, which may be retained by such Junior Lender) from Borrower, the Premises, from the applicable Senior Junior Borrower and/or the proceeds from items identified in clauses (i) or (ii) of the definition of Separate Collateral (but excluding, the proceeds received from any bona-fide third party in connection with a secured party sale of such Junior Lender's Equity Collateral or any Guaranty Claim) securing or guaranteeing the applicable Senior Junior Loans prior to the date that all obligations of the applicable Senior Junior Borrowers to the applicable Senior Junior Lenders under the applicable Senior Junior Loan Documents are paid in full.

(b) If (i) a Proceeding with respect to Borrower shall have occurred and has not been dismissed or (ii) there shall have occurred and be continuing an Event of Default under the Senior Loan Documents, after giving effect to Junior Lender's cure rights pursuant to Section 12, except as expressly otherwise provided herein, Senior USActive 7415617.4 -61-

Lender shall be entitled to receive payment and performance in full of all amounts due or to become due to Senior Lender before any Junior Lender is entitled to receive any payment (including any payment which may be payable by reason of the payment of any other indebtedness of Borrower being subordinated to the payment of the Junior Loans) on account of any Junior Loan. If (i) a Proceeding with respect to Senior Junior Borrower shall have occurred and has not been dismissed or (ii) there

shall have occurred and be continuing an Event of Default under the Senior Junior Loan Documents, after giving effect to Subordinate Junior Lender's cure rights pursuant to Section 12, the Senior Junior Lender holding the applicable Senior Junior Loan shall be entitled to receive payment and performance in full of all amounts due or to become due to such Senior Junior Lender before any applicable Subordinate Junior Lender is entitled to receive any payment (including any payment which may be payable by reason of the payment of any other indebtedness of any Junior Borrower being subordinated to the payment of the applicable Senior Junior Loans) on account of any applicable Subordinate Junior Loan. All payments or distributions upon or with respect to a Junior Loan which are received by a Junior Lender contrary to the provisions of this Agreement shall be received by such Junior Lender in trust for the benefit of Senior Lender and the applicable Senior Junior Lenders to the extent payable to Senior Lender or the applicable Senior Junior Lenders and shall be paid within two (2) Business Days of receipt thereof over first to Senior Lender to the extent then payable to Senior Lender and then to the applicable Senior Junior Lenders in the same form as so received (with any necessary endorsement) to be applied (in the case of cash) to, or held as collateral (in the case of non-cash property or securities) for, the payment or performance first of the Senior Loan Liabilities in accordance with the terms of the Senior Loan Documents and then for, the payment or performance of the applicable Senior Junior Loan Liabilities in accordance with the terms of the Senior Junior Loan Documents. Nothing contained herein shall prohibit a Junior Lender from making Protective Advances (and adding the amount thereof to the principal balance of its Junior Loan) notwithstanding the existence of a default under the Senior Loan at such time.

(c) Notwithstanding anything to the contrary contained in this Agreement, including, without limitation, Sections 10(a) and (b), provided that (x) after giving effect to each Junior Lender's cure rights pursuant to Section 12 hereof, no Event of Default shall exist and be continuing under the Senior Loan Documents or the applicable Senior Junior Loan Documents, or Junior Lender shall be pursuing its rights with respect to an Extended Non-Monetary Cure Period in accordance with and subject to the terms and conditions set forth in Section 12 of this Agreement with respect thereto and (y) the maturity date of the Senior Loan and the applicable Senior Junior Loan (in each case, as the same may be extended) has not occurred or been accelerated (unless following any such acceleration the Senior Loan and/or the applicable Senior Junior Loan was reinstated and no Event of Default exists thereunder):

(i) a Junior Lender may accept and retain current and delinquent payments due and payable from time to time which the applicable Junior Borrower is obligated to pay to such Junior Lender, or prepayments permitted to be made by such Junior Borrower, in either case in accordance with the terms and conditions of the applicable Junior Loan Documents. If funds are distributed to a Junior Lender in accordance with the Senior Loan Documents or the applicable Senior Junior Loan Documents, Senior Lender and the applicable Senior Junior Lender agrees that, absent clear evidence of error, such distribution shall be deemed

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to have been properly paid to such Junior Lender and may be accepted and retained by such Junior Lender;

(ii) a Junior Lender may accept and retain amounts received in connection with the exercise of its rights and remedies with respect to the Separate Collateral; and

(iii) a Junior Lender may accept and retain prepayments of its respective Junior Loan, together with any prepayment fee payable pursuant to such Junior Loan Documents, from funds other than those funds held in the Senior Cash Management Account (as defined in the Senior Loan Agreement) or any applicable Senior Junior Loan Cash Management Account.

(d) Subject to the terms and provisions of Section 6 hereof, a Junior Lender may, in its sole and absolute discretion without Senior Lender's or any Senior Junior Lender's consent, take any Equity Collateral Enforcement Action or Separate Collateral Enforcement Action; provided, however, (i) such Junior Lender shall, prior to commencing any Equity Collateral Enforcement Action, give the Senior Lender and the applicable Senior Junior Lenders written notice of the default which would permit such Junior Lender to commence such Equity Collateral Enforcement Action, as well as provide Senior Lender and the applicable Senior Junior Lenders with copies of any and all material notices, pleadings, agreements, motions and briefs served upon, delivered to or with any party to any Equity Collateral Enforcement Action, (ii) such Junior Lender shall keep the Senior Lender and the applicable Senior Junior Lenders reasonably apprised as to the status of any Equity Collateral Enforcement Action and (iii) if and to the extent that a Qualified Transferee acquires all of the ownership interests in an applicable Junior Borrower pursuant to an Equity Collateral Enforcement Action in accordance with the terms of this Agreement, then upon, from and after the vesting of title thereto, such Junior Lender's rights pursuant to Section 12 and Section 14 and the obligations of Senior Lender and the applicable Senior Junior Lenders pursuant to Section 12 and Section 14 with respect to such Junior Lender shall be null and void and of no further force and effect and every other provision in this Agreement which references such Sections, rights or obligations shall thereafter be read as if such reference, right or obligation were not contained or specified therein with respect to such Junior Lender. Nothing in this Agreement is intended to create and this Agreement does not create any security interest by any Junior Lender in favor of Senior Lender and the applicable Senior Junior Lenders and shall not constitute a guarantee by any Junior Lender of its respective Junior Borrower's obligations under the applicable Junior Loan Documents.

(e) In the event of a casualty to the buildings or improvements constructed on any portion of the Premises or a condemnation or taking under a power of eminent domain of all or any portion of the Premises, the buildings or improvements thereon, Senior Lender shall have a first and prior interest in and to any payments, awards, proceeds, distributions, or consideration arising from any such event after deducting the costs of collection (including without limitation payment of Casualty Parcel Allocated Debt or Condemnation Parcel Allocated Debt) (the "Award"), provided that if the amount of the Award is in excess of all amounts owed to Senior Lender under the Senior Loan Documents and either the Senior Loan or Casualty Parcel Allocated Debt or Condemnation Parcel Allocated Debt, as applicable, has been paid in full or Borrower is otherwise entitled to a remittance of same (subject to the rights of any Mezzanine Lender (as defined in the Senior Loan Agreement)), such excess Award or portion to be so remitted to Borrower shall be applied as follows: (i) first, to the Mezzanine 1 Lender in the USActive 7415617.4 -63-

amount due the Mezzanine 1 Lender under the Mezzanine 1 Loan Documents, (ii) second, to the Mezzanine 2 Lender in the amount due the Mezzanine 2 Lender under the Mezzanine 2 Loan Documents, (iii) third, to the Mezzanine 3 Lender in the amount due the Mezzanine 3 Lender under the Mezzanine 3 Loan Documents, (iv) fourth, to the Mezzanine 4 Lender in the amount due the Mezzanine 4 Lender under the Mezzanine 4 Loan Documents, (v) fifth, to the Mezzanine

5 Lender in the amount due the Mezzanine 5 Lender under the Mezzanine 5 Loan Documents, (vi) sixth, to the Mezzanine 6 Lender in the amount due the Mezzanine 6 Lender under the Mezzanine 6 Loan Documents, (vii) seventh, to the Mezzanine 7 Lender in the amount due the Mezzanine 7 Lender under the Mezzanine 7 Loan Documents, (viii) eighth, to the Mezzanine 8 Lender in the amount due the Mezzanine 8 Lender under the Mezzanine 8 Loan Documents, (ix) ninth, to the Mezzanine 9 Lender in the amount due the Mezzanine 9 Lender under the Mezzanine 9 Loan Documents, (x) tenth, to the Mezzanine 10 Lender in the amount due the Mezzanine 10 Lender under the Mezzanine 10 Loan Documents, and (xi) eleventh, to the Mezzanine 11 Lender in the amount due the Mezzanine 11 Lender under the Mezzanine 11 Loan Documents. Notwithstanding anything herein to the contrary, any reference in the foregoing sentence to an amount due to any Junior Lender shall include without limitation any applicable Casualty Parcel Allocated Debt or Condemnation Parcel Allocated Debt, each as respectively defined in the applicable Junior Loan Agreement. In the event of any competing claims, Senior Lender shall continue to hold such excess Award until Senior Lender receives an agreement signed by all parties making a claim to the excess Award or a final order of a court of competent jurisdiction directing Senior Lender as to how the excess Award is to be distributed. Notwithstanding the foregoing, in the event of a casualty or condemnation, Senior Lender shall release the Awards in any such event to Borrower if and to the extent required by the terms and conditions of the Senior Loan Documents in order to repair and restore the Premises or any portion thereof in accordance with the terms and provisions of the Senior Loan Documents. Awards made available to Borrower for the repair or restoration of the Premises or any portion thereof shall not be subject to attachment by any Junior Lender, but this sentence is not intended to otherwise affect any lien, if any, that a Junior Lender may have upon such proceeds. Senior Lender shall use reasonable efforts to promptly (x) notify each Junior Lender of any requests by Borrower for the release of any Award and (y) provide each Junior Lender with any documentation delivered by Borrower to Senior Lender with respect to any such request by Borrower for the release of any Award.

(1) With respect to any insurance policies (collectively, the "Policies") for the Premises for which a Junior Lender and/or its Affiliate are identified as "named insureds" or "additional insureds", until such time as the Senior Loan has been paid in full, each Junior Lender acknowledges and agrees that no Junior Lender nor any of its Affiliates shall have any right whatsoever to (i) contest or challenge (in their capacity as named insureds) any such settlement or adjustment approved by Senior Lender, (ii) disapprove any settlement or adjustment of any claim or any distribution of proceeds under the Policies approved by Senior Lender, or (iii) be issued checks, drafts or wires (jointly or otherwise) representing proceeds of the Policies. Nothing contained in this subparagraph (t) is meant to limit any rights that a Junior Lender has under its respective Junior Loan Documents to approve of any action taken by the applicable Junior Borrower. Senior Lender shall, at a Junior Lender's request, advise such Junior Lender from time to time as to the status of any settlement or adjustment of any claim or any distribution of proceeds under the Policies.

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(a) Marshalling of Assets and Information. Each Junior Lender and Senior Lender hereby waives any requirement for marshaling of assets hereby or the right to assert that an election of remedies has occurred in connection with any foreclosure of any security interest

or any other realization upon collateral in respect of the Senior Loan Documents or the Junior Loan Documents, as applicable, or any exercise of any rights of set-off or otherwise. Each of the Junior Lenders and Senior Lender assumes all responsibility for keeping itself infbrmed as to the condition (financial or otherwise) of Borrower, each Junior Borrower, the condition of the Premises and all other collateral and other circumstances and, except for notices expressly required by this Agreement, neither Senior Lender nor any Junior Lender shall have any duty whatsoever to obtain, advise or deliver information or documents to the others relative to such condition, business, assets and/or operations.

(b) Fiduciary Duties. Each Junior Lender agrees that Senior Lender owes no fiduciary duty to any Junior Lender in connection with the administration of the Senior Loan and the Senior Loan Documents and each Junior Lender agrees not to assert any such claim. Senior Lender agrees that none of the Junior Lenders owes any fiduciary duty to Senior Lender in connection with the administration of the Junior Loans and the Junior Loan Documents and Senior Lender agrees not to assert any such claim Each Junior Lender agrees that no Junior Lender owes any fiduciary duty to any other Junior Lenders in connection with the administration of a Junior Loan and the related Junior Loan Documents and each Junior Lender agrees not to assert any such claim.

(c) Payments, Distributions and Protective Advances. No payment or distribution to Senior Lender pursuant to the provisions of this Agreement and no Protective Advance by a Junior Lender and no other action taken by a Junior Lender to cure any default under the Senior Loan Documents shall entitle such Junior Lender to exercise any right of subrogation in respect thereof or provide such Junior Lender with any claim against Borrower, in each case, prior to the payment in full of the Senior Loan Liabilities, and each of the Junior Lenders agrees that, except with respect to the enforcement of its remedies under the Junior Loan Documents related to the Junior Loan held by such Junior Lender permitted hereunder, prior to the satisfaction of all Senior Loan Liabilities it shall not acquire, by subrogation. or otherwise, any lien, estate, right or other interest in any portion of the Premises or any other collateral now securing the Senior Loan or the proceeds therefrom that is or may be prior to, or of equal priority to, any of the Senior Loan Documents or the liens, rights, estates and interests created thereby. No payment or distribution to any applicable Senior Junior Lender pursuant to the provisions of this Agreement and no Protective Advance by a Junior Lender and no other action taken by a Junior Lender to cure any default under the Senior Junior Loan Documents shall entitle such Junior Lender to exercise any right of subrogation in respect thereof prior to the payment in full of the applicable Senior Junior Loan Liabilities, and each Junior Lender agrees that, except with respect to the enforcement of its remedies under the Junior Loan Documents related to the Junior Loan held by such Junior Lender permitted hereunder, prior to the satisfaction of all applicable Senior Junior Loan Liabilities it shall not acquire, by subrogation or otherwise, any lien, estate, right or other interest in any portion of the Premises, the Separate Collateral of any applicable Senior Junior Lender or any other collateral now securing the Senior Loan or any applicable Senior Junior Loan or the proceeds therefrom that is or may be prior to, or of equal priority to, any of the applicable Senior Junior Loan Documents or the Senior Loan Documents or the liens, rights, estates USActive 7415617A -65-

and interests created thereby.

(d) Bankruptcy.

(i) Subject to Section 31 of this Agreement, the provisions of this Agreement shall be applicable both before and after the commencement, whether voluntary or involuntary, of any case, proceeding or other action by or against Borrower, any Junior Borrower or any SPE Constituent Entity under any existing or future law of any jurisdiction relating to bankruptcy, insolvency, reorganization or relief of debtors (a "Proceeding").

(ii) For as long as the Senior Loan shall remain outstanding, none of the Junior Lenders shall solicit, direct or cause Borrower or any other entity which Controls Borrower (the "Borrower Group") or any other Person to: (1) commence any Proceeding against Borrower or any SPE Constituent Entity; (2) institute proceedings to have Borrower or any SPE Constituent Entity adjudicated a bankrupt or insolvent; (3) consent to, or acquiesce in, the institution of bankruptcy or insolvency proceedings against Borrower or any SPE Constituent Entity; (4) file a petition or consent to the filing of a petition seeking reorganization, arrangement, adjustment, winding-up, dissolution, composition, liquidation or other relief by or on behalf of Borrower or any SPE Constituent Entity; (5) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or any SPE Constituent Entity or a substantial portion of any of its respective property, including without limitation, the Premises, or any portion thereof, and any other collateral securing the Senior Loan, or any portion thereof; (6) make an assignment for the benefit of any creditor of Borrower or any SPE Constituent Entity; (7) seek to consolidate the Premises or any other assets of Borrower or any SPE Constituent Entity with the assets of any Junior Borrower or any member of the Borrower Group in any proceeding relating to bankruptcy, insolvency, reorganization or relief of debtors; (8) seek to consolidate Borrower with any Junior Borrower or any member of Borrower Group; or (9) take any action in furtherance of any of the foregoing. The terms and provisions of this Section 11(d) apply to each Junior Lender solely in its respective capacity as a Junior Lender. If any Junior Lender commences an Equity Collateral Enforcement Action against any Junior Borrower, and pursuant to such Equity Collateral Enforcement Action, such Junior Lender takes title to the Equity Collateral of such Junior Borrower, from and after the date title to such Equity Collateral is vested in such Junior Lender (as applicable), such Junior Lender shall be bound by the terms and provisions of the respective organizational documents of such Junior Borrower regarding bankruptcy and all matters requiring the vote of the independent directors/managers/members of such Junior Borrower.

(iii) In the event that a Junior Lender is deemed to be a creditor of Borrower in any Proceeding: (1) each of the Junior Lenders hereby agrees that it shall not make any election, give any consent, commence any action or file any motion, claim, obligation, notice or application or take any other action in any Proceeding by or against Borrower or any SPE Constituent Entity without the prior consent of

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Senior Lender, except to the extent necessary to preserve or realize upon such Junior Lender's interest in any Separate Collateral pledged to such Junior Lender pursuant to the Junior Loan Documents related to the Junior Loan held by such Junior Lender; provided, however, that any such filing

shall not be as a creditor of the Borrower; (2) Senior Lender may vote in any such Proceeding any and all claims of such Junior Lender, and each of the Junior Lenders hereby appoints the Senior Lender as its agent, and grants to the Senior Lender an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of exercising any and all rights and taking any and all actions available to such Junior Lender in connection with any case by or against Borrower or any SPE Constituent Entity in any Proceeding, including without limitation, the right to file and/or prosecute any claims, to vote to accept or reject a plan, to make any election under Section 1111(b) of the Bankruptcy Code, provided, however, that with respect to any proposed plan of reorganization in respect of which creditors are voting, Senior Lender may vote on behalf of such Junior Lender only if the proposed plan would result in Senior Lender being "impaired" (as such term is defined in the United States Bankruptcy Code); and (3) no Junior Lender shall challenge the validity or amount of any claim submitted in such • Proceeding by Senior Lender in good faith or any valuations of the Premises, or any portion thereof, or other Senior Loan collateral submitted by Senior Lender in good faith, in such Proceeding or take any other action in such Proceeding, which is adverse to Senior Lender's enforcement of its claim or receipt of adequate protection (as that term is defined in the Bankruptcy Code).

(iv) For as long as any applicable Senior Junior Loan with respect to a Junior Lender shall remain outstanding, such Junior Lender shall not, and shall not solicit any Person to, and shall not direct or cause the Junior Borrower under the Junior Loan held by such Junior Lender to direct or cause such Junior Borrower or any entity which Controls such Junior Borrower (as applicable, the "Junior Borrower Group") to: (1) commence any Proceeding against any applicable Senior Junior Borrower; (2) institute proceedings to have any applicable Senior Junior Borrower adjudicated a bankrupt or insolvent; (3) consent to, or acquiesce in, the institution of bankruptcy or insolvency proceedings against any applicable Senior Junior Borrower; (4) file a petition or consent to the filing of a petition seeking reorganization, arrangement, adjustment, winding-up, dissolution, composition, liquidation or other relief by or on behalf of any applicable Senior Junior Borrower; (5) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for any applicable Senior Junior Borrower, Separate Collateral for any applicable Senior Junior Loan (or any portion thereof) or any other collateral securing any applicable Senior Junior Loan (or any portion thereof); (6) make an assignment for the benefit of any creditor of any applicable Senior Junior Borrower; (7) seek to consolidate the Separate Collateral for any applicable Senior Junior Loan (or any portion thereof) or any other assets of any applicable Senior Junior Borrower with the assets of the Junior Borrower under the Junior Loan held by such Junior Lender or any member of the applicable Junior Borrower Group in any proceeding relating to bankruptcy, insolvency, reorganization or relief of debtors; seek to consolidate

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any applicable Senior Junior Borrower with any Subordinate Junior Borrower or any member of Junior Borrower Group for a Subordinate Junior Borrower; or (9) take any action in furtherance of any of the foregoing.

(v) In the event that a Junior Lender is deemed to be a creditor of any applicable Senior Junior Borrower in any Proceeding: (1) such Junior Lender hereby agrees that it shall not make any election, give any consent, commence any action or file

any motion, claim, obligation, notice or application or take any other action in any Proceeding by or against any applicable Senior Junior Borrower without the prior consent of the applicable Senior Junior Lenders, except to the extent necessary to preserve or realize upon its interest in the Equity Collateral; provided, however, that any such filing shall not be as a creditor of any applicable Junior Borrower; (2) the applicable Senior Junior Lenders in their respective order of priority may vote in any such Proceeding any and all claims of such Junior Lender, and such Junior Lender hereby appoints the applicable Senior Junior Lenders in their respective order of priority as its agent, and grants to the applicable Senior Junior Lenders in their respective order of priority an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of exercising any and all rights and taking any and all actions available to the applicable Senior Junior Lenders in connection with any case by or against the applicable Senior Junior Borrowers in any Proceeding, including without limitation, the right to file and/or prosecute any claims, to vote to accept or reject a plan, to make any election under Section 1111(b) of the Bankruptcy Code, provided, however, that with respect to any proposed plan of reorganization in respect of which creditors are voting, the applicable Senior Junior Lenders in their respective order of priority may vote on behalf of such Junior Lender only if the proposed plan would result in such applicable Senior Junior Lender being "impaired" (as such term is defined in the United States Bankruptcy Code); and (3) such Junior Lender shall not challenge the validity or amount of any claim submitted in such Proceeding by any applicable Senior Junior Lender in good faith or any valuations of the Separate Collateral for such Senior Junior Lender's Senior Junior Loan or other collateral for such applicable Senior Junior Loan submitted by such applicable Senior Junior Lender in good faith, in such Proceeding or take any other action in such Proceeding, which is adverse to enforcement by any applicable Senior Junior Lender of its claim or receipt of adequate protection (as that term is defined in the Bankruptcy Code).

(vi) The terms and provisions of this Section 11(d) apply to each Junior Lender solely in its capacity as a Junior Lender.


(a) Senior Loan Default. Prior to Senior Lender commencing any Enforcement Action under the Senior Loan Documents, Senior Lender shall provide written notice of such default to each Junior Lender and any Loan Pledgee entitled to notice thereof pursuant to Section 16 of this Agreement, whether or not Senior Lender is obligated to give notice thereof to Borrower (each, a "Senior Loan Default Notice"). In the event Senior Lender has delivered a Senior Loan Default Notice pursuant to Sections 12(a)(i) or (ii) below which has not been cured by a Junior Lender, Senior Lender shall provide the Junior Lenders with copies of any and all material notices relating to such Event of Default, pleadings, agreements, motions and briefs served upon, delivered to or with any party to any Enforcement Action and otherwise keep the Junior Lenders reasonably apprised as to the current status of any Enforcement Action. Prior to or concurrently with USActive 7415617.4 -68-

undertaking any curative action with respect to the Senior Loan, a Junior Lender shall provide the other Junior Lenders with written notice thereof. Senior Lender shall permit the Junior Lenders an opportunity to cure such default in accordance with the following terms.

(i) Monetary Default. If the default identified in the Senior Loan Default Notice is a monetary default relating to (1) any scheduled payment of principal or interest, or (2) the payment of any other liquidated sum of money, Junior Lenders shall have until ten (10) Business Days after the giving of the Senior Loan Default Notice to cure such monetary default (each such ten (10) Business Day cure period, a "Monetary Cure Period"); provided, however, that in the event a Junior Lender elects to cure such monetary default, such Junior Lender hereby agrees (x) to indemnify, defend and hold harmless Senior• Lender for all cost, expenses, losses, liabilities, obligations, damages, penalties, and disbursements arising under any pooling and servicing agreement applicable to the Senior Loan to the extent imposed on, incurred by or asserted against Senior Lender due to or arising from such Monetary Cure Period, (y) without duplication of the foregoing, to reimburse Senior Lender for any interest charged by Senior Lender or the servicer on any advances for monthly payments of principal andior interest on the Senior Loan and/or on any Protective Advances during the Monetary Cure Period, and (z) if the monetary default is not cured within the Monetary Cure Period but is thereafter cured by a Junior Lender, to pay Senior Lender the excess of interest accruing at the Default Rate (without duplication) over interest accruing at the Interest Rate under the Senior Loan for the number of days beyond the expiration of such Monetary Cure Period that the default to which such Monetary Cure Period related continued uncured, less any amounts paid by such Junior Lender under (y) above. A Junior Lender shall not be required, in order to effect a cure hereunder during the Monetary Cure Period, to pay any late charges or (other than the cure by a Junior Lender of a default in the payment of the Senior Loan in full on the maturity date thereof) any interest at the Default Rate under the Senior Loan Documents (irrespective of any cure of such default by a Junior Lender pursuant to the provisions of this Agreement), and no late charges or interest at the Default Rate shall accrue against such Junior Lender for such period. There shall be no right to cure as hereinabove set forth with respect to monthly scheduled interest and principal payments for a period of more than six (6) consecutive months (regardless of which Junior Lender has cured such monetary default) unless such Junior Lender seeking to cure beyond such six (6) month period has commenced and is continuing to diligently pursue its rights against such Junior Lender's Equity Collateral, in which case such Junior Lender shall be entitled to continue curing such monetary defaults involving monthly scheduled interest and principal payments until the occurrence of any voluntary or involuntary Proceeding involving Borrower (such additional monetary cure period, an "Extended Monetary Cure Period"). In the event more than one Junior Lender cures any monetary default in accordance with the terms of this Section, Senior Lender hereby agrees (x) to accept the cure from the junior most Junior Lender and (y) to return to any Senior Junior Lender(s) within three (3) Business Days of accepting such cure from the junior most Junior Lender any funds tendered by the Senior Junior Lender(s). The cure period for a Junior Lender with respect to a monetary default shall run concurrently with the cure period for the other Junior Lenders with respect to such monetary default and in no event

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sequentially. Notwithstanding the foregoing, if one Junior Lender has satisfied the conditions for an Extended Monetary Cure Period with respect to defaults involving monthly scheduled interest and principal payments as set forth above and thereafter ceases to qualify for such Extended Monetary Cure Period (either by failing to make cure payments or failing to diligently pursue its rights against its Equity Collateral) then

(A) such Junior Lender's cure rights with respect to all monetary defaults shall immediately terminate (unless Borrower shall have cured all defaults and reinstated the Senior Loan in good standing) and (B) notwithstanding any of the other junior Lender's earlier election not to cure the defaults involving monthly scheduled interest and principal payments, such other Junior Lenders shall be entitled to succeed to all rights under the existing Extended Monetary Cure Period, upon written notice to the Senior Lender, so long as such other Junior Lender promptly commences and thereafter diligently pursues its rights against its Equity Collateral and otherwise satisfies the provisions of this Section 12.

(ii) Non-Monetary Default. If the default is of a non-monetary nature, each Junior Lender shall have the same period of time as Borrower under the Senior Loan Documents to cure such non-monetary default as if the first notice to Borrower of the same was the date of giving of a Senior Loan Default Notice with respect thereto (if such date is after the date on which Borrower is so notified) ("Non-Monetary Cure Period"); provided, however, if such non-monetary default cannot reasonably be cured within such period or if no cure period is provided and, if applicable, curative action was commenced by such Junior Lender within the Non-Monetary Cure Period and, if there is a cure period, is being diligently pursued by a Junior Lender (or with respect to a non-monetary default that is not susceptible of cure, if a Junior Lender shall be diligently pursuing the foreclosure of its Equity Collateral and such non-monetary default does not materially impair the value, use or operation of the Premises, all as determined in the reasonable judgment of Senior Lender), then such Junior Lender only shall be given an additional period of time as is reasonably necessary for such Junior Lender in the exercise of due diligence to cure such non-monetary default (or, in the case of any such non-monetary default as described above that is not susceptible of cure, then such Junior Lender shall be given an additional period of time as is reasonably necessary for such Junior Lender in the exercise of due diligence to complete such foreclosure), for so long as (1) such Junior Lender diligently and expeditiously proceeds to cure such non-monetary default (or with respect to a non-monetary default that is not susceptible of cure, if such Junior Lender shall be diligently pursuing the foreclosure of its Equity Collateral and such non- monetary default does not materially impair the value, use or operation of the Premises, all as determined in the reasonable judgment of Senior Lender), (2) timely payment of Senior Lender's regularly scheduled monthly interest and amortization payments under the Senior Loan and any other amounts due under the Senior Loan Documents is made, (3) such additional period of time does not exceed sixty (60) days; unless such non-monetary default is of a nature that cannot be cured within such sixty (60) days without ownership of such Junior Lender's Equity Collateral or is not susceptible to cure, in which case such Junior Lender shall have such additional time as is reasonably necessary to gain ownership of its Equity Collateral, provided that such Junior Lender is continuously and diligently pursuing the ownership of its Equity Collateral and such non- monetary default does not materially impair the value, use or operation of the

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Premises, all as determined in the reasonable judgment of Senior Lender, (4) such non-monetary default is not caused by a bankruptcy, insolvency or assignment for the benefit of creditors of Borrower or during such Non-Monetary Cure Period a bankruptcy, insolvency or assignment for the benefit of creditors of Borrower does not occur, and (5) during such Non-Monetary Cure Period, with respect to such non-monetary default

(and any additional period of time provided for above), there is no further material adverse effect on Borrower, the Senior Loan or the value, use or operation of the Premises taken as a whole, all as determined in the reasonable judgment of Senior Lender (such additional Non-Monetary Cure Period, an "Extended Non-Monetary Cure Period"). Notwithstanding anything to the contrary contained herein, in no event shall any Extended Non-Monetary Cure Period extend beyond the Maturity Date. If a Junior Lender is exercising its cure right, it shall consult with the applicable Senior Junior Lenders and keep such Senior Junior Lenders informed as to its progress. The Non-Monetary Cure Period and any additional cure period granted hereunder to a Junior Lender electing to cure a non-monetary default of Borrower (including, with respect to a non-monetary default that is not susceptible of cure, any additional time as is reasonably necessary for a Junior Lender to foreclose on its Equity Collateral) shall automatically terminate upon the commencement of a Proceeding involving the Borrower, unless the Proceeding is dismissed in which case the right will be deemed reinstated from and after such dismissal to the extent the other conditions of this Section 12(a) are satisfied. Notwithstanding the foregoing, if a Junior Lender abandons its cure efforts during a Non-Monetary Cure Period or Extended Non-Monetary Cure Period or fails to satisfy any of the conditions set forth in clauses (1), (2), (3), (4) and (5) above during a Non-Monetary Cure Period, then (A) such Junior Lender's cure rights with respect to the applicable non-monetary default (but not any other non-monetary default) shall immediately terminate and (B) notwithstanding any other Junior Lenders' earlier election not to cure the applicable non-monetary default, such other Junior Lenders shall be entitled to succeed to all rights under the existing Non-Monetary Cure Period, upon written notice to the Senior Lender, so long as any such other Junior Lender promptly commences and thereafter diligently pursues its rights against its Separate Collateral and the other conditions set forth in clauses (1), (2), (3), (4) and (5) above are satisfied.

(iii) To the extent that any Junior Lender or any Qualified Transferee, in accordance with the provisions and conditions of this Agreement, acquires the ownership interests in Borrower or any Senior Junior Borrower, as applicable, pursuant to a Separate Collateral Enforcement Action, such Junior Lender or such Qualified Transferee shall acquire the same subject to the Senior Loan and the terms, conditions and provisions of the Senior Loan Documents for the balance of the term thereof (including any extension rights as provided therein), which shall not be accelerated by Senior Lender solely due to such acquisition and shall remain in full force and effect, provided, that (i) such Junior Lender or Qualified Transferee shall have caused Borrower and any new Third-Party Obligor to reaffirm their respective obligations under the Senior Loan Documents in writing, (subject to such exculpatory provisions as are set forth therein) and thereafter to perform, all of the terms, conditions and provisions of the Senior Loan Documents on Borrower's part to be performed and (ii) all defaults under the Senior Loan which remain uncured as of the date of such acquisition have been cured by

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such Qualified Transferee or waived by Senior Lender except for defaults that are not susceptible of being cured by such Qualified Transferee; provided, that such defaults which are not susceptible of being cured do not materially impair the value, use or operation of the Premises taken as a whole, all as determined in the reasonable judgment of Senior Lender. Notwithstanding any contrary or inconsistent provision of this Agreement, the Senior Loan Documents or the Junior Loan Documents, no acquisition or other fee or similar charge shall be due in

connection with such Junior Lender's or such other Qualified Transferee's acquisition of any interest in Borrower, any Junior Borrower or the Premises as the result of a Equity Collateral Enforcement Action or assignment in lieu of foreclosure or other negotiated settlement in lieu of any of the foregoing_ In addition, to the extent that a Junior Lender or any Qualified Transferee, in accordance with the provisions and conditions of this Agreement, acquires the ownership interests in such Borrower, pursuant to an Enforcement Action or otherwise during the thirty (30) days prior to the maturity date (or any extended maturity date, as applicable) of the Senior Loan, such Junior Lender, or such Qualified Transferee shall only be required to deliver a notice of extension of the term of such Senior Loan five (5) Business Days prior to the maturity date notwithstanding anything to the contrary in the Senior Loan Agreement.

(b) Junior Loan Default. Prior to accelerating a Junior Loan or commencing any Equity Collateral Enforcement Action by reason of an Event of Default under the applicable Junior Loan Documents, the Junior Lender holding the Junior Loan that is subject to an Event of Default shall provide written notice of the default which would permit such Junior Lender to accelerate the applicable Junior Loan or commence an Equity Collateral Enforcement Action to the applicable Subordinate Junior Lenders and any Loan Pledgees entitled to notice thereof pursuant to Section 16 of this Agreement, whether or not such Junior Lender is obligated to give notice thereof to the Junior Borrower under such Junior Loan (each, a "Junior Loan Default Notice"). Except in connection with such Junior Borrower's failure to repay such Junior Loan in full on the maturity date thereof, the Junior Lender holding the Junior Loan that is subject to an Event of Default shall permit the applicable Subordinate Junior Lenders an opportunity to cure such default in accordance with the provisions of this Section 12. In the event a Junior Borrower fails to repay a Junior Loan in full on the maturity date thereof, each of the Subordinate Junior Lenders with respect to such Junior Loan shall have the right to purchase such Junior Loan pursuant to the terms, and subject to the conditions, provided in Section 14(b). Prior to or concurrently with undertaking any curative action with respect to a Junior Loan, a Junior Lender shall provide the other Junior Lenders with written notice thereof. Each Junior Lender shall keep the applicable Subordinate Junior Lenders reasonably apprised as to the status of any Equity Collateral Enforcement Action.

(i) Junior Loan Monetary Default. If the default identified in the Junior Loan Default Notice is a monetary default relating to (1) any scheduled payment of principal or interest or (2) the payment of any other liquidated sum of money, the Subordinate Junior Lenders shall have until ten (10) Business Days after the giving by the applicable Senior Junior Lender of the Senior Loan Default Notice to cure such monetary default (each such ten (10) Business Day cure period, a "Junior Loan Monetary Cure Period"); provided, however, that in the event a Subordinate Junior Lender elects to cure such monetary default, such Subordinate Junior Lender hereby agrees (x) to indemnify, defend and hold harmless the applicable Senior Junior Lender for all cost, expenses, losses, liabilities, obligations, damages, penalties, and disbursements arising under any servicing agreement

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applicable to the Senior Junior Loan to the extent imposed on, incurred by or asserted against Senior Junior Lender due to or arising from such Junior Loan Monetary Cure Period, (y) without duplication, to reimburse the applicable Senior Junior Lender for any interest charged by the applicable Senior Junior Lender or the servicer on any advances for monthly payments of principal and/or interest on the applicable Senior

Junior Loan and/or on any Protective Advances during the Junior Loan Monetary Cure Period, and (z) if the monetary default is not cured within the Junior Loan Monetary Cure Period but is thereafter cured by a Subordinate Junior Lender, to pay the applicable Senior Junior Lender the excess of interest accruing at the Default Rate (without duplication) over interest accruing at the Interest Rate under the applicable Senior Junior Loan for the number of days beyond the expiration of such Junior Loan Monetary Cure Period that the default to which such Junior Loan Monetary Cure Period related continued uncured, less any amounts paid by such Subordinate Junior Lender under (y) above. A Subordinate Junior Lender shall not be required, in order to effect a cure hereunder during the Junior Loan Monetary Cure Period, to pay any late charges or (other than the cure by a Subordinate Junior Lender of a default in the payment of the applicable Senior Junior Loan in full on the maturity date thereof) any interest at the Default Rate under the applicable Senior Junior Loan Documents (irrespective of any cure of such default by a Subordinate Junior Lender pursuant to the provisions of this Agreement), and no late charges or interest at the Default Rate shall accrue against such Subordinate Junior Lender for such period. There shall be no right to cure as herein above set forth with respect to monthly scheduled interest and principal payments for a period of more than six (6) consecutive months (regardless of which Subordinate Junior Lender has cured such monetary default) unless such Subordinate Junior Lender seeking to cure beyond such six (6) month period has commenced and is continuing to diligently pursue its rights against such Subordinate Junior Lender's Equity Collateral, in which case such Subordinate Junior Lender shall be entitled to continue curing such monetary defaults involving monthly scheduled interest and principal payments until the occurrence of any voluntary or involuntary Proceeding involving the applicable Junior Borrower (such additional monetary cure period, an "Junior Loan Extended Monetary Cure Period"). In the event more than one Subordinate Junior Lender cures any monetary default in accordance with the terms of this Section, the applicable Senior Junior Lender hereby agrees (x) to accept the cure from the junior most Subordinate Junior Lender and (y) to return to any Senior Subordinate Junior Lender(s) within three (3) Business Days of accepting such cure from the junior most Subordinate Junior Lender any funds tendered by the Senior Subordinate Junior Lender(s). The cure period for a Subordinate Junior Lender with respect to a monetary default shall run concurrently with the cure period for the other Subordinate Junior Lenders with respect to such monetary default and in no event sequentially. Notwithstanding the foregoing, if a Subordinate Junior Lender elects to pursue such cure of defaults involving monthly scheduled debt service payments as set forth above and thereafter either fails to make the required cure payments or fails to diligently pursue its rights against such Subordinate Junior Lender's Equity Collateral, then notwithstanding the earlier election of the remaining Subordinate Junior Lenders not to cure the defaults involving monthly scheduled debt service payments, such other Subordinate Junior Lenders shall be entitled to succeed to all such cure rights, upon written notice to the Senior Junior Lender that is the holder of the Senior Junior Loan that is subject to

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the Event of Default, so long as such remaining Subordinate Junior Lender promptly commences and thereafter diligently pursues its rights against its Equity Collateral and otherwise satisfies the provisions of this Section 12(b)(i). If the default referenced in a Junior Loan Default Notice has been cured such that there is no longer an Event of Default under the applicable Junior Loan Documents, the applicable

Subordinate Junior Lenders shall have the same Junior Loan Monetary Cure Period with respect to any future Junior Loan Default Notice. In the event that the Senior Loan and one or more Senior Junior Loans are concurrently in default, a Subordinate Junior Lender shall have no right to exercise its cure rights with respect to the Senior Loan under Sections 12(a)(i) or (ii) or the Senior Junior Loan(s) under this Section 12(b)(i) or Section 12(b)(ii) below unless such Subordinate Junior Lender is simultaneously exercising its cure rights with respect to the Senior Loan under Sections 12(a)(i) and/or (ii) (to the extent that such Subordinate Junior Lender is permitted to exercise such cure rights under Sections 12(a)(i) and/or (ii') and with respect to each such Senior Junior Loan(s) under this Section 12(b)(i) above or Section 12(b)(ii) below (to the extent that such Subordinate Junior Lender is permitted to exercise such cure rights under Sections 12(b)(i) and/or (ii)).

(ii) Junior Loan Non-Monetary Cure Period. If the default identified in the Junior Loan Default Notice is of a non-monetary nature, (aa) the applicable Subordinate Junior Lender having the lowest priority shall have fifteen (15) Business Days from the later of (A) the receipt by it of a Junior Loan Default Notice and (B) the expiration of the applicable Senior Junior Borrower's cure period, if any, for such non-monetary default provided in the applicable Senior Junior Loan Documents, to cure such non-monetary default (such period, the "Initial Junior Loan Non-Monetary Cure Period"); and (bb) if the applicable Subordinate Junior Lender having the lowest priority elects not to cure such non-monetary default prior to the expiration of the Initial Junior Loan Non-Monetary Cure Period, the other remaining Subordinate Junior Lenders shall have the right to cure such non-monetary default within five (5) additional Business Days after such Subordinate Junior Lender receives notice that the next most junior Subordinate Junior Lender failed to cure such non-monetary default (the Initial Junior Loan Non-Monetary Cure Period or such additional cure period, as applicable, the "Junior Loan Non-Monetary Cure Period"); provided, that (1) except as provided in the immediately following clause (2), in no event shall the Junior Loan Non-Monetary Cure Period extend beyond the date that is the later of (A) five (5) Business Days after the Subordinate Junior Lender with the highest priority with respect to the Senior Junior Loan that is subject to a default has received notice that the Subordinate Junior Lender with the next lower priority has failed to cure such default and (B) twenty-five (25) Business Days after the expiration of Senior Junior Borrower's cure period, if any, for such non-monetary default provided in the Senior Junior Loan Documents, to cure such non-monetary default; and (2) if such non-monetary default is susceptible of cure but cannot reasonably be cured within the applicable Junior Loan Non-Monetary Cure Period and curative action was promptly commenced and is being diligently pursued by a Subordinate Junior Lender (or with respect to a non-monetary default that is not susceptible of cure, if a Subordinate Junior Lender shall be diligently pursuing the foreclosure of its Equity Collateral and such non-monetary default does not materially impair the value, use or operation of the applicable Senior Junior Lender's Equity Collateral as

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reasonably determined by such Senior Junior Lender), such Subordinate Junior Lender shall be given an additional period of time as is reasonably necessary for such Subordinate Junior Lender in the exercise of due diligence to cure such non- monetary default (or, in the case of a non-monetary default as described above that is not susceptible of cure, then such Subordinate Junior Lender shall be given an additional

period of time as is reasonably necessary for such Subordinate Junior Lender in the exercise of due diligence to complete the foreclosure of its Equity Collateral) for so long as (A) such Subordinate Junior Lender makes or causes to be made timely payment of the applicable Senior Junior Borrower's regularly scheduled monthly principal and/or interest payments under the applicable Senior Junior Loan and any other amounts due under the applicable Senior Junior Loan Documents, (B) such additional period of time does not exceed forty-five (45) days, unless such non-monetary default is of a nature that cannot be cured within such forty-five (45) days, in which case, such Subordinate Junior Lender shall have such additional time as is reasonably necessary to cure such non- monetary default, provided that such Subordinate Junior Lender is continuously and diligently pursuing a cure of such non-monetary default (or, with respect to a non-monetary default that is not susceptible of cure, such Subordinate Junior Lender shall have such additional time as is reasonably necessary to gain ownership of its Equity Collateral, provided that such Subordinate Junior Lender is continuously and diligently pursuing the ownership of its Equity Collateral and such non-monetary default does not materially impair the value, use or operation of the applicable Senior Junior Lender's Equity Collateral as reasonably determined by such Senior Junior Lender), (C) such default is not caused by a bankruptcy, insolvency or assignment for the benefit of creditors of the applicable Senior Junior Borrower, and (D) during such Junior Loan Non-Monetary Cure Period (and any additional period of time provided for above), there is no material impairment to the value, use or operation of the applicable Senior Junior Lender's Equity Collateral as reasonably determined by such Senior Junior Lender (such additional Junior Loan Non-Monetary Cure Period, an "Junior Loan Extended Non-Monetary Cure Period"). If a Subordinate Junior Lender has commenced exercising any such cure right during a Junior Loan Non-Monetary Cure Period and elects not to proceed with such cure, such Junior Lender shall promptly notify the remaining Subordinate Junior Lenders, and each remaining Subordinate Junior Lender shall be deemed in compliance with the terms hereof if it commences curing such event within five (5) Business Days following receipt of written notice of such election not to proceed with such cure by the Junior Lender that precedes it in priority of cure right pursuant to this Section 12(b)(ii) and otherwise complies with the provision of the immediately preceding sentence. The Junior Loan Non-Monetary Cure Period and any additional cure period granted hereunder to a Subordinate Junior Lender electing to cure the non-monetary default (including, with respect to a non-monetary default that is not susceptible of cure, any additional time as is reasonably necessary for a Subordinate Junior Lender to foreclose on its Equity Collateral) shall automatically terminate upon the bankruptcy (or similar insolvency) of Borrower or any applicable Senior Junior Borrower. In the event that the Senior Loan and one or more Senior Junior Loans are concurrently in default, a Subordinate Junior Lender shall have no right to exercise its cure rights with respect to the Senior Loan under Section 12(a) or the Senior Junior Loan(s) under Section 12(b)(i) above or this Section 12(b)(ii) unless such .Subordinate Junior

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Lender is simultaneously exercising its cure rights with respect to the Senior Loan under Sections 12(a)(i) and/or (ii) (to the extent that such Subordinate Junior Lender is permitted to exercise such cure rights under Sections 12(a)(i) and/or (ii)) and with respect to each such Senior Junior Loan(s) under Section 12(b)() above or this Section 12(b)(ii) (to the extent that such Subordinate Junior Lender is permitted to exercise such cure

rights under Sections 12(b)(i) and/or (ii)). The Junior Loan Non-Monetary Cure Period and any additional cure period granted hereunder to any Subordinate Junior Lender electing to cure a non-monetary default of any applicable Senior Junior Borrower (including, with respect to a non-monetary default that is not susceptible of cure, any additional time as is reasonably necessary for a Subordinate Junior Lender to foreclose on its Equity Collateral) shall automatically terminate upon the bankruptcy (or similar insolvency) of such applicable Senior Junior Borrower.

(c) Cash Management. So long as no Event of Default shall have occurred and be continuing under the Senior Loan Documents, subject to the cure rights of the Junior Lenders hereunder, all funds held and applied pursuant to the Senior Loan Cash Management Agreement and Senior Loan Agreement, shall continue to be applied in the manner required thereunder prior to the occurrence of an Event of Default under the Senior Loan. So long as no Event of Default shall have occurred and be continuing under the Mezzanine 1 Loan Documents, subject to the cure rights of the Junior Lenders hereunder, all funds held and applied pursuant to the Mezzanine 1 Cash Management Agreement and Mezzanine 1 Loan Agreement, shall continue to be applied pursuant thereto in the manner required thereunder prior to the occurrence of an Event of Default under the Mezzanine 1 Loan Documents. So long as no Event of Default shall have occurred and be continuing under the Mezzanine 2 Loan Documents, subject to the cure rights of the Junior Lenders hereunder, all funds held and applied pursuant to the Mezzanine 2 Cash Management Agreement and Mezzanine 2 Loan Agreement, shall continue to be applied in the manner required thereunder prior to the occurrence of an Event of Default under the Mezzanine 2 Loan Documents. So long as no Event of Default shall have occurred and be continuing under the Mezzanine 3 Loan Documents, subject to the cure rights of the Junior Lenders hereunder, all funds held and applied pursuant to the Mezzanine 3 Cash Management Agreement and Mezzanine 3 Loan Agreement, shall continue to be applied pursuant in the manner required thereunder prior to the occurrence of an Event of Default under the Mezzanine 3 Loan Documents. So long as no Event of Default shall have occurred and be continuing under the Mezzanine 4 Loan Documents, subject to the cure rights of the Junior Lenders hereunder, all funds held and applied pursuant to the Mezzanine 4 Cash Management Agreement and Mezzanine 4 Loan Agreement, shall continue to be applied in the manner required thereunder prior to the occurrence of an Event of Default under the Mezzanine 4 Loan Documents. So long as no Event of Default shall have occurred and be continuing under the Mezzanine 5 Loan Documents, subject to the cure rights of the Junior Lenders hereunder, all funds held and applied pursuant to the Mezzanine 5 Cash Management Agreement and Mezzanine 5 Loan Agreement, shall continue to be applied in the manner required thereunder prior to the occurrence of an Event of Default under the Mezzanine 5 Loan Documents. So long as no Event of Default shall have occurred and be continuing under the Mezzanine 6 Loan Documents, subject to the cure rights of the Junior Lenders hereunder, all funds held and applied pursuant to the Mezzanine 6 Cash Management Agreement and Mezzanine 6 Loan Agreement, shall continue to be applied in the manner

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required thereunder prior to the occurrence of an Event of Default under the Mezzanine 6 Loan Documents. So long as no Event of Default shall have occurred and be continuing under the Mezzanine 7 Loan Documents, subject to the cure rights of the Junior Lenders hereunder, all funds held and applied pursuant to the Mezzanine 7 Cash Management Agreement and Mezzanine 7 Loan Agreement, shall continue to be applied in the manner required thereunder prior to the occurrence of an Event of Default under the Mezzanine 7 Loan Documents. So long as no Event of Default shall have occurred and be continuing under the

Mezzanine 8 Loan Documents, subject to the cure rights of the Junior Lenders hereunder, all funds held and applied pursuant to the Mezzanine 8 Cash Management Agreement and Mezzanine 8 Loan Agreement, shall continue to be applied in the manner required thereunder prior to the occurrence of an Event of Default under the Mezzanine 8 Loan Documents. So long as no Event of Default shall have occurred and be continuing under the Mezzanine 9 Loan Documents, subject to the cure rights of the Junior Lenders hereunder, all funds held and applied pursuant to the Mezzanine 9 Cash Management Agreement and Mezzanine 9 Loan Agreement, shall continue to be applied in the manner required thereunder prior to the occurrence of an Event of Default under the Mezzanine 9 Loan Documents. So long as no Event of Default shall have occurred and be continuing under the Mezzanine 10 Loan Documents, subject to the cure rights of the Junior Lenders hereunder, all funds held and applied pursuant to the Mezzanine 10 Cash Management Agreement and Mezzanine 10 Loan Agreement, shall continue to be applied in the manner required thereunder prior to the occurrence of an Event of Default under the Mezzanine 10 Loan Documents. So long as no Event of Default shall have occurred and be continuing under the Mezzanine 11 Loan Documents, subject to the cure rights of the Junior Lenders hereunder, all funds held and applied pursuant to the Mezzanine 11 Cash Management Agreement and Mezzanine 11 Loan Agreement, shall continue to be applied in the manner required thereunder prior to the occurrence of an Event of Default under the Mezzanine 11 Loan Documents.

Section 13. Replacement of Manager. Senior Lender and the applicable Senior Junior Lenders consent to the other Junior Lenders' right, pursuant to the applicable Junior Loan Documents, under certain circumstances, to directly or indirectly, as the case may be, cause Borrower to terminate the Property Manager. Upon the occurrence of an event which gives a Junior Lender, but not Senior Lender, the right to cause the termination of the Property Manager, the applicable most junior Junior Lender shall be entitled to appoint a replacement manager without the consent of Senior Lender or the other Senior Junior Lenders so long as such replacement property manager would, following such appointment, satisfy the requirements of a Qualified Manager. In the event that both the applicable most junior Junior Lender and Senior Lender shall have such rights at the same time and Senior Lender shall fail to exercise such rights, the applicable most junior Junior Lender may exercise such rights and replace Property Manager with a Qualified Manager, provided that five (5) Business Days prior written notice is provided to Senior Lender and the other Junior Lenders identifying the replacement manager or replacement and requesting the approval of such manager by Senior Lender, provided, however, that no replacement manager as to which Senior Lender has approval rights under the Senior Loan Documents shall be appointed if Senior Lender has reasonable grounds to object to such property manager, and Senior Lender affirmatively objects to such manager (and in the event Senior Lender does not so affirmatively object to such appointment, no replacement manager as to which a Senior Junior Lender has approval rights under the applicable Senior Junior Loan Documents shall be appointed if a Senior Junior Lender has reasonable grounds to object to such property manager and a Senior Junior Lender affirmatively objects to such manager). In the event that both the applicable most senior Senior Junior Lender and

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the most junior Junior Lender shall have such rights at the same time, and the most senior Senior Junior Lender shall fail to exercise such rights, the applicable most junior Junior Lender may exercise such rights and replace Property Manager with a Qualified Manager provided that five (5) Business Days prior written notice is provided to Senior Lender and the other Junior Lenders identifying the replacement manager and requesting the approval of such manager by Senior Lender, provided,

however, that no replacement manager as to which Senior Lender has approval rights under the Senior Loan Documents shall be appointed if Senior Lender has reasonable grounds to object to such property manager and Senior Lender affirmatively objects to such manager (and in the event Senior Lender does not so affirmatively object to such appointment, no replacement manager as to which a Senior Junior Lender has approval rights under the Senior Junior Loan Documents shall be appointed if a Senior Junior Lender has reasonable grounds to object to such property manager and a Senior Junior Lender affirmatively objects to such manager). Any such exercise by the applicable most senior Senior Junior Lender or most junior Junior Lender may be superceded by any subsequent exercise of such rights by Senior Lender to the extent provided in the Senior Loan Documents, provided such replacement manager is a Qualified Manager (and to the extent not so superceded by the Senior Lender, then any Senior Junior Lender may also supercede any such appointments to the extent provided in the Senior Junior Loan Documents, provided such replacement manager is a Qualified Manager). Notwithstanding anything in this Section 13 to the contrary, if an Event of Default under the Senior Loan or any applicable Senior Junior Loan then exists or any other event shall have occurred pursuant to which Senior Lender or any applicable Senior Junior Lender has the right to select any replacement property manager and/or asset manager pursuant to the Senior Loan Documents or the applicable Senior Junior Loan Documents, Senior Lender or, if Senior Lender has not exercised such right, the applicable most senior Senior Junior Lender, shall have the sole right to select a replacement property manager and/or asset manager, whether or not a new manager was retained by a Junior Lender; provided that so long as such Event of Default under the Senior Loan is being cured by a Junior Lender in accordance with this Agreement, Senior Lender shall not, without the consent of such Junior Lender (which consent shall not be unreasonably withheld, conditioned or delayed), select any replacement property manager other than a Qualified Manager (and further provided that so long as such Event of Default under a Senior Junior Loan is being cured by Junior Lender in accordance with this Agreement, Senior Junior Lender shall not, without the consent of such Junior Lender (which consent shall not be unreasonably withheld, conditioned or delayed), select any replacement property manager other than a Qualified Manager).

Section 14. Right to Purchase Senior Loan and the Senior Junior Loans. (a) At any time after (i) the occurrence and during the continuance of a monetary Event of Default under the Senior Loan or non-monetary Event of Default under the Senior Loan which is subject to an Enforcement Action or (ii) if the Senior Loan is a "specially serviced mortgage loan" under the applicable trust and servicing agreement or pooling and servicing agreement related thereto as a result of a monetary Event of Default or material non-monetary Event of Default occurring under the Senior Loan (each of the foregoing, a "Purchase Option Event"), upon ten (10) Business Days' prior written notice to Senior Lender (the "Purchase Notice"), a Junior Lender (and, if permitted by the applicable participation agreement, a Junior Lenders' participant) shall have the right to purchase, in whole, but not in part, the Senior Loan for a price equal to the sum of (without duplication) the outstanding principal balance of the Senior Loan, together with all accrued interest and other amounts due thereon, including without limitation prepayment fees or premiums that


would be due if Borrower was prepaying the Senior Loan at the time of such purchase in violation of the prohibition against voluntary prepayment, exit fees, yield maintenance premiums, spread maintenance premiums, advances made by Senior Lender or any servicer and post-petition interest), any unreimbursed Protective Advances made by Senior Lender or any servicer and any interest charged by Senior Lender or any servicer on any advances for monthly payments of principal and/or interest on the Senior Loan and/or on any

Protective Advances), including all costs and expenses (including reasonable legal fees and expenses) actually incurred by Senior Lender in enforcing the terms of the Senior Loan Documents, any fees and expenses payable or reimbursable to any servicer, trustee or fiscal _ agent (provided that any such fees and expenses are not duplicative of any default interest, late charges or other fees and expenses otherwise payable by a Junior Lender to Senior Lender under this Section 14) including, without limitation, special servicing to any special servicer under the applicable pooling and servicing agreement, interest on advances made by any of them (but excluding (A) any workout or liquidation fees if the Senior Loan is purchased within ninety (90) days of the Purchase Option Event and (B) any late charges (other than late charges due on the entire principal balance of the Senior Loan on the maturity date) and default interest except to the extent late charges and default interest are payable by such Junior Lender pursuant to Section 12 hereof) whether or not any such entity may be deemed to be Senior Lender (collectively, the "Senior Loan Purchase Price"). In the event that any Junior Lender elects to purchase the Senior Loan pursuant to this Section 14(a), the Subordinate Junior Lender with the lowest priority with respect to the other Junior Lenders that have elected to purchase the Senior Loan shall have the exclusive right to so purchase the Senior Loan, provided that such Subordinate Junior Lender shall also be required to concurrently purchase each of the applicable Senior Junior Loans from the Senior Junior Lenders holding such applicable Senior Junior Loans (regardless of whether such Senior Junior Lenders were among the Junior Lenders which had elected to purchase the Senior Loan). Such purchase of each of the Senior Junior Loans shall be for a price equal to the sum of (without duplication) the outstanding principal balance of the Senior Junior Loan, together with all accrued interest and other amounts due thereon (including, without limitation, advances made by Senior Junior Lender or any servicer and post petition interest), any unreimbursed Protective Advances made by such Senior Junior Lender or any servicer), including all costs and expenses (including reasonable legal fees and expenses) actually incurred by such Senior Junior Lender in enforcing the terms of the applicable Senior Junior Loan Documents, any fees and expenses payable or reimbursable to any servicer (provided that any such fees and expenses are not duplicative of any default interest, late charges or other fees and expenses otherwise payable by a Subordinate Junior Lender to such Senior Junior Lender under this Section 14); but excluding any workout or liquidation fees, prepayment fees or premiums that would be due if the applicable Senior Junior Borrower was prepaying the applicable Senior Junior Loan at the time of such purchase in violation of the prohibition against voluntary prepayment, exit fees, yield maintenance premiums, spread maintenance premiums, late charges and default interest (such price as to each such Senior Junior Loan, the "Senior Junior Loan Purchase Price"). A Subordinate Junior Lender may not close the purchase of the Senior Loan without concurrently closing the purchase of the applicable Senior Junior Loans in accordance with the terms of this paragraph. Prior to electing to purchase the Senior Loan and/or any Senior Junior Loan, a Subordinate Junior Lender shall have the right to obtain from Senior Lender and each Senior Junior Lender a good faith estimate of the Senior Loan Purchase Price and Senior Junior Loan Purchase Price, respectively. If any Subordinate Junior Lender which has elected to purchase the Senior USActive 7415617.4 -79-

Loan fails to complete such purchase within fifteen (15) Business Days after delivery of a Purchase Notice or fails to concurrently purchase the applicable Senior Junior Loans as required hereunder, then such Purchase Notice shall be deemed invalid, such defaulting Subordinate Junior Lender shall cease to have any right to purchase the Senior Loan (and any applicable Senior Junior Loan) in connection with the applicable Purchase Option Event and the remaining Junior Lenders shall thereafter be entitled to

exercise their purchase rights under, and in accordance with, this Section 14(a). Senior Lender shall close the sale of the Senior Loan to the applicable Junior Lender on the date set forth in the Senior Purchase Notice subject to the terms and conditions of this Agreement. Each Junior Lender agrees that the sale of the Senior Loan shall, if the Senior Loan is included in a Securitization at such time, comply with all requirements of the agreement pursuant to which the Certificates were issued and that all costs and expenses related thereto shall be paid by the applicable Junior Lender. Concurrently with payment to Senior Lender of the Senior Loan Purchase Price, Senior Lender shall deliver or cause to be delivered to the Junior Lender exercising the purchase right hereunder all Senior Loan Documents held by or on behalf of Senior Lender and will execute in favor of the Junior Lender or its designee exercising the purchase right hereunder, assignment documentation, in form and substance reasonably acceptable to Senior Lender and such Junior Lender, at the sole cost and expense of such Junior Lender to assign the Senior Loan and its rights under the Senior Loan Documents (without recourse, representations or warranties, except for representations as to the outstanding balance of the Senior Loan, the power and authority of the Senior Lender to transfer the Senior Loan and as to Senior Lender's ownership and not having previously assigned, transferred, participated or encumbered its rights in the Senior Loan unless such participation or encumbrance will be released prior to the transfer). Concurrently with payment to each of Senior Junior Lenders of the applicable Senior Junior Loan Purchase Price for the Senior Junior Loan held by each such Senior Junior Lender, each applicable Senior Junior Lender shall deliver or cause to be delivered to the Subordinate Junior Lender exercising the purchase right hereunder all Senior Junior Loan Documents held by or on behalf of such Senior Junior Lender and will execute in favor of such Subordinate Junior Lender or its designee assignment documentation, in form and substance reasonably acceptable to such Subordinate Junior Lender, at the sole cost and expense of such Subordinate Junior Lender, to assign such Senior Junior Lender's Senior Junior Loan and its rights under the related Senior Junior Loan Documents (without recourse, representations or warranties, except for representations as to the outstanding balance of such Senior Junior Loan, the power and authority of the Senior Junior Lender to transfer the Senior Junior Loan and as to such Senior Junior Lender's ownership and not having previously assigned, transferred, participated or encumbered its rights in such Senior Junior Loan unless such participation or encumbrance will be released prior to the transfer). Following the occurrence of a Purchase Option Event, each Junior Lender shall keep the other Junior Lenders informed as to such Junior Lender's intention to exercise any of its respective rights in connection with the Purchase Option Event.

(b) The right of each Junior Lender to purchase the Senior Loan shall automatically terminate upon (A) (i) a transfer of the Premises by foreclosure sale, sale by power of sale or delivery of a deed in lieu of foreclosure where the transferee is not Borrower or any Affiliate thereof, or (ii) with respect to a specific Purchase Option Event, if such Purchase Option Event ever ceases to exist, or (B) a sale of the Senior Loan after the occurrence and during the continuance of a Event of Default for a premium above the Senior Loan Purchase Price; provided, however, Senior Lender agrees to give the

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Junior Lenders ten (10) days prior written notice if it expects to receive such a premium in connection with a sale of the Senior Loan and that in no event shall any Junior Lender have less than thirty (30) days to deliver a Purchase Notice following notice by Senior Lender to such Junior Lender of the occurrence of the related Purchase Option Event, except pursuant to the terms of clause (A)(ii) of this sentence. Notwithstanding the foregoing sentence, if title is transferred to Senior Lender less than ten (10)

days after the acceleration of the Senior Loan, the Junior Lenders shall have a ten (10) day period to deliver a Purchase Notice to Senior Lender with the obligation to purchase the Premises within such ten (10) day period from the delivery of such Purchase Notice at the Senior Loan Purchase Price, in which case all costs and expenses (including all transfer taxes) in connection therewith shall be paid by the applicable Junior Lender.

(c) If a Junior Loan has been accelerated, any Equity Collateral Enforcement Action has been commenced under the Junior Loan Documents for a Junior Loan, a Proceeding has been commenced against a Junior Borrower under such Junior Loan or a Subordinate Junior Lender has cured one or more defaults on the part of any Junior Borrower wider the Senior Junior Loan Documents pursuant to Section 12 hereof and, but for such cure, the Senior Junior Loan would be considered a "specially serviced mortgage loan" under the applicable pooling and servicing agreement if it were the Senior Loan (a "Junior Loan Purchase Option Event"), the Junior Lender holding such Junior Loan (such Junior Loan, the "Optioned Junior Loan" and such Junior Lender, the "Optioned Junior Lender") shall provide prompt written notice of the same to the applicable Subordinate Junior Lenders, and upon ten (10) Business Days' prior written notice (the "Junior Purchase Notice") to the Senior Junior Lender holding the Optioned Junior Loan that is subject to the applicable Junior Loan Purchase Option Event, the applicable Subordinate Junior Lenders (and, if permitted by the applicable participation agreement, Optioned Junior Lenders' participant) shall have the right to purchase, in whole but not in part, the applicable Optioned Junior Loan for the Senior Junior Loan Purchase Price. Notwithstanding the foregoing but subject to the terms of the next to last sentence of this Section 14(c), the failure of a Senior Junior Lender to provide notice to any applicable Subordinate Junior Lender of the occurrence of a Junior Loan Purchase Option Event shall have no adverse effect on such Junior Lender. In the event that more than one Subordinate Junior Lender elects to purchase an Optioned Junior Loan pursuant to this Section 14(c), the Subordinate Junior Lender with the lowest priority with respect to the other Subordinate Junior Lenders that have elected to purchase such Optioned Junior Loan shall have the exclusive right to so purchase such Optioned Junior Loan, provided that such Subordinate Junior Lender shall also be required to concurrently purchase each of the other Subordinate Junior Loans that constitute, as to such purchasing Subordinate Junior Lender, Senior Junior Loans from the Junior Lenders holding such other Subordinate Junior Loans that so constitute Senior Junior Loans (such other Subordinate Junior Loans, the "Additional Covered Junior Loans") in each case for a price equal to the applicable Senior Junior Loan Purchase Price. If any Subordinate Junior Lender which has elected to purchase the Optioned Junior Loan that is subject to the applicable Junior Loan Purchase Option Event fails to complete such purchase within fifteen (15) Business Days of delivery of a Junior Purchase Notice or fails to concurrently purchase the applicable Additional Covered Junior Loans as required hereunder, then such Junior Purchase Notice shall be deemed invalid, such defaulting Subordinate Junior Lender shall cease to have any right to purchase the Optioned Junior Loan in connection with the applicable Junior Loan Purchase Option Event and the other Subordinate Junior Lenders shall thereafter be entitled to exercise their purchase rights under, and in accordance with, this Section 14(c).


Concurrently with payment to the applicable Senior Junior Lenders of the applicable Senior Junior Loan Purchase Price for the Optioned Junior Loan or Additional Covered Junior Loan, as the case may be, held by such Senior Junior Lender, each applicable Senior Junior Lender shall deliver or cause to be delivered to the Subordinate Junior Lender exercising the purchase right hereunder all Senior Junior Loan Documents held by or on behalf of such Senior Junior Lender and will execute in favor of such Subordinate Junior Lender•

or its designee assignment documentation, in form and substance reasonably acceptable to such Subordinate Junior Lender, at the sole cost and expense of such Subordinate Junior Lender, to assign such Senior Junior Lender's Optioned Junior Loan, or Additional Covered Junior Loan, as the case may be, and its rights under the related Senior Junior Loan Documents (without recourse, representations or warranties, except for representations as to the outstanding balance of such Optioned Junior Loan or Additional Covered Junior Loan, as the case may be, and as to such Senior Junior Lender's ownership and not having previously assigned, transferred, participated or encumbered its rights in such Optioned Junior Loan or Additional Covered Junior Loan, as the case may be, unless such participation or encumbrance will be released prior to the transfer). The right of any Subordinate Junior Lender to purchase the Optioned Junior Loan shall automatically terminate (x) upon a transfer or sale of the Equity Collateral covered by the Senior Junior Loan Documents that secure the Optioned Junior Loan, pursuant to any Equity Collateral Enforcement Action where the transferee is not Borrower (or any Affiliate thereof), or (y) with respect to a specific Junior Loan Purchase Option Event, if such Junior Loan Purchase Option Event ceases to exist (including, if the applicable Senior Junior Lender terminated its Equity Collateral Enforcement Action); provided, however, that in no event shall any Subordinate Junior Lender have less than thirty (30) days, following notice by the applicable Senior Junior Lender to such Subordinate Junior Lender of the occurrence of a Junior Loan Purchase Option Event, to elect to purchase the Optioned Junior Loan, except if such period for such election to purchase is terminated pursuant to the terms of foregoing clause (y). Notwithstanding the foregoing sentence, if title is transferred to any Subordinate Junior Lender less than ten (10) days after the acceleration of the applicable Senior Junior Loan, the applicable Subordinate Junior Lenders shall have a ten (10) day period to deliver the applicable Senior Junior Loan Purchase Notice to the applicable Senior Junior Lender with the obligation to purchase the applicable Equity Collateral within ten (10) days of the delivery of such Senior Junior Loan Purchase Notice at the applicable Senior Junior Loan Purchase Price, in which case all costs and expenses (including all transfer taxes) in connection therewith shall be paid by the applicable Subordinate Junior Lender.

(d) Senior Lender and each Junior Lender covenants not to, and not to permit any Affiliate to, enter any agreement with Borrower, any Junior Borrower or any Affiliate thereof to purchase the Senior Loan or any Junior Loan pursuant to this Section or in connection with any refinancing of the Senior Loan or any Junior Loan in any manner designed to avoid or circumvent the provisions of the Senior Loan Documents or any of the Junior Loan Documents which require the payment of any liquidated damage amount, acceleration prepayment premium, a prepayment fee, premiums or yield maintenance charge in connection with a prepayment of the Senior Loan or a Junior Loan. Notwithstanding anything to the contrary contained herein, the fifteen (15) Business Day period following delivery of the Purchase Notice during which a purchasing Junior Lender is required to consummate such purchase, may be extended for an additional fifteen (15) Business Days upon payment to the Senior Lender of a non-refundable deposit in an amount equal to ten percent (10%) of the Senior Loan Purchase Price.


Section 15. Additional Understandings. For as long any Junior Loan remains outstanding:

(a) Notices of Transfer, etc. In the event of a request by Borrower or any Junior Borrower for Senior Lender's or any Junior Lender's consent to either (i) the sale or

Transfer of all or any material portion of the Premises or any interest in Borrower or any Junior Borrower, or (ii) the granting of a further mortgage, deed of trust or similar encumbrance against the Premises or any of the Equity Collateral or any incurrence of additional indebtedness, such Person from whom such consent has been requested shall, as long as no Event of Default has occurred under the Senior Loan or the Junior Loan held by such Person, if such Person has the right to consent under the Senior Loan Documents or Junior Loan Documents held by such Person or such consent is otherwise requested from such Person, obtain the prior written consent of the Junior Lenders or the applicable Subordinate Junior Lenders, as the case may be, prior to such Person granting its consent or agreement thereto (for the purposes of this Section 15(a), each Junior Lender is to be reasonable to the extent Senior Lender must be reasonable, but nothing contained above is intended to reduce or limit the rights of each Junior Lender under its respective Junior Loan Documents). Nothing herein shall require any Junior Lender to consent to, or waive its rights with respect to, any Transfer of the Premises or any interest therein (including, without limitation, the Separate Collateral).

(b) Annual Budget. Each of the Junior Lenders shall have the right to approve the annual operating budget of Borrower in accordance with the terms of their respective Junior Loan Documents. To the extent that the approval of any budget by Senior Lender is required under the Senior Loan Agreement, each Junior Lender shall advise Senior Lender of any objections such Junior Lender may have to any proposed budget, along with its suggestions for changes, no later than two (2) Business Days before the date on which Senior Lender is required to approve or disapprove of such budget under the Senior Loan Agreement. To the extent that the approval of Senior Lender is required under the Senior Loan Agreement for any budget, each Junior Lender shall consent to any changes in the budget reasonably requested by Senior Lender.

(c) Reserves and Escrows. If (i) Senior Lender waives any reserves or escrow accounts required under the Senior Loan Documents which reserves or escrow accounts are also required under the most Senior Junior Loan Documents, then the most Senior Junior Lender may require that its Junior Borrower (x) deposit such amounts that would have been deposited into any reserves or escrow accounts under the Senior Loan to be transferred to and deposited with such Senior Junior Lender and (y) enter into a cash management agreement with such Senior Junior Lender substantially similar to the arrangement entered into by Borrower with Senior Lender at the closing of the Senior Loan and (ii) if any Senior Junior Lender waives any reserves or escrow accounts required under its applicable Senior Junior Loan Documents which reserves or escrow accounts are also required under the most senior Subordinate Junior Loan Documents, then the most senior Subordinate Junior Lender may require that its Junior Borrower (x) deposit such amounts that would have been deposited into any reserves or escrow accounts under the Senior Loan or the applicable Senior Junior Loan to be transferred to and deposited with such Subordinate Junior Lender and (y) enter into a cash management agreement with such Subordinate Junior Lender substantially similar to the arrangement entered into by Borrower with the Senior Lender or by the Senior Junior Borrower with such

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Senior Junior Lender.

(d) Financial Statements. Senior Lender shall provide each Junior Lender with copies of each financial statement delivered to Senior Lender pursuant to the terms of the Senior Loan Documents within three (3) Business Days after request by any such Junior Lender. Upon the reasonable request of a Junior Lender, Senior Lender shall request additional financial information from Borrower as provided for in the Senior Loan Documents. Each Senior Junior

Lender shall provide each Subordinate Junior Lender with copies of each financial statement delivered to Senior Junior Lender pursuant to the terms of the Senior Junior Loan Documents within three (3) Business Days after request by any such Subordinate Junior Lender. Upon the reasonable request of a Subordinate Junior Lender, Senior Junior Lender shall request additional financial information from the related Senior Junior Borrower as provided for in the Senior Loan Documents.

(e) Consent Rights of Junior Lenders. If any of the Junior Loan Documents contain any provision or requirement that a Junior Lender's consent or approval be obtained for any act or determination by Borrower or its respective Junior Borrower in connection with the leasing of the Premises or alterations to the Premises, to the extent that such consent or approval is also required by Senior Lender under the Senior Loan Documents, each Junior Lender hereby agrees that it shall first advise Senior Lender whether such Junior Lender objects to the requested consent or approval within five (5) Business Days after its receipt of (i) a written request for a consent or approval from the applicable Junior Borrower and (ii) delivery of all required documents and information necessary to adequately and completely evaluate such request. Senior Lender shall consult with each Junior Lender with respect to any such consent or approval right of such Junior Lender. Each Junior Lender having such consent rights shall not unreasonably withhold its consent to such lease or alteration if Senior Lender (A) is deemed to have approved such lease or alteration under the Senior Loan Documents or (B) reasonably approves such lease or alteration provided, with respect to a lease, the lease is on market terms and, with respect to an alteration, the alteration is necessary to maintain the Premises in good order and repair as required by the Senior Loan Documents.

(0 Cash Management Period. Senior Lender shall not determine that an O&M Operative Period has ended unless the most junior Junior Lender has determined, in its reasonable judgment made in accordance with the terms of the Senior Loan Agreement, that an O&M Operative Period has ended in accordance with the provisions of the Senior Loan Agreement. Upon the occurrence and during the continuance of an Event of Default under the Senior Loan, subject to the Junior Lender's cure rights under Section 12 hereof, if Senior Lender elects in its sole discretion to apply any amounts on deposit in the General Reserve Sub-Account under the Senior Loan Agreement, Senior Lender and the Junior Lenders hereby agree that Senior Lender shall apply such amounts sequentially among the Senior Loan and the Junior Loans.

(g) Marshalling of Assets. Each Junior Lender hereby waives any equitable right it may have to require that Senior Lender marshal any assets of Borrower in favor of such Junior Lender, to require the separate sales of any portion of the Premises or to require that Senior Lender exhaust its remedies against any portion of the Premises. Each Junior Lender agrees that, except with respect to the enforcement of its remedies under its applicable Junior Loan Documents permitted hereunder (including the foreclosure and acquisition of its applicable Equity Collateral through an Enforcement Action), prior to the satisfaction of all Senior Loan Liabilities it shall not acquire, by subrogation or otherwise, any lien, estate, right or other interest in any portion of the Premises or any USActive 7415617.4 -84-

other collateral now securing the Senior Loan or the proceeds therefrom that is or may be prior to, or of equal priority to, any of the Senior Loan Documents or the liens, rights, estates and interests created thereby.

(h) Requests for Disbursements. Senior Lender hereby agrees to promptly (x) notify each Junior Lender of any requests by Borrower for disbursements of funds from the Reserve Funds (as defined in the Senior Loan Agreement) or a release of Net Proceeds (as defined in the Senior Loan Documents) and (y) provide each Junior Lender with any documentation delivered by Borrower to Senior Lender with respect to any such request by Borrower for a disbursement of funds from the Reserve Funds or release of Net Proceeds (provided that in no event shall Senior Lender have any liability for a failure by Senior Lender to provide such notice or documentation to any Junior Lender, and no such failure shall constitute a default hereunder).

(i) Cash Management.

(i) Senior Lender hereby agrees to deliver to each Junior Lender a copy of any notice sent or received by Senior Lender with respect to the Senior Loan Cash Management Agreement, including, without limitation, each disbursement instruction delivered under such Senior Loan Cash Management Agreement. Such copies shall be delivered to each Junior Lender concurrently with the delivery of such notices to the Agent under the Senior Loan Cash Management Agreement or promptly after receipt thereof by Senior Lender, as the case may be. Senior Lender may elect to change the Agent under the Senior Loan Cash Management Agreement provided that Senior Lender shall give each Junior Lender not less than two (2) Business Days' prior written notice of any such change. Senior Lender shall cause the Senior Loan Cash Management Agreement to provide that the Bank thereunder shall provide each Junior Lender with access to information regarding the Central Account (as such term is defined in the Senior Loan Cash Management Agreement).

(ii) Each Senior Junior Lender hereby agrees to deliver to the applicable Subordinate Junior Lenders a copy of any notice sent or received by such Senior Junior Lender with respect to its applicable Junior Loan Cash Management Agreement, including, without limitation, each disbursement instruction delivered under such Senior Junior Loan Cash Management Agreement. Such copies shall be delivered to each Subordinate Junior Lender concurrently with the delivery of such notices to the Agent under the applicable Senior Junior Loan Cash Management Agreement. A Senior Junior Lender may elect to change the Bank under its applicable Senior Junior Loan Cash Management Agreement provided that such Senior Junior Lender shall give each applicable Subordinate Junior Lender not less than two (2) Business Days' prior written notice of any such change. Each Senior Junior Lender shall cause its applicable Senior Junior Loan the Cash Management Agreement to provide that the Bank thereunder shall provide each applicable Subordinate Junior Lender with access to information regarding the applicable Deposit Account (as such term is defined in the applicable Senior Junior Cash Management Agreement).

(j) Notices of Default.

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(i) Each Junior Lender shall give Senior Lender and each other Junior Lender notice of any Event of Default, acceleration of its applicable Junior Loan and the commencement of any Equity Collateral Enforcement Action under its Junior Loan

Documents and, simultaneously with giving such notices to its Junior Borrower, copies of notices given to its Junior Borrower of events that with the passage of time and failure to cure, would result in the occurrence of a "Default" or "Event of Default" under its respective Junior Loan Documents.

(ii) Senior Lender shall give each Junior Lender written notice of any Event of Default, acceleration of the Senior Loan, transfer of the Senior Loan to "special servicing" and the commencement of an Enforcement Action under the Senior Loan Documents and, simultaneously with giving such notices to Borrower, copies of notices given to Borrower of events that with the passage of time and failure to cure, would result in the occurrence of a "Default" or "Event of Default" under the Senior Loan Documents.

(k) Loan Components/Prepayment. Each Junior Lender hereby acknowledges and agrees that notwithstanding anything to the contrary contained herein, at any time prior to the Securitization of the Senior Loan, Senior Lender may create additional components of the Senior Loan, change the balances, amortization and interest rates of the components of the Senior Loan, in each case without the consent of any Junior Lender, provided that the initial weighted average interest rate, monthly amortization in the aggregate among the components of the Senior Loan and the aggregate principal balance of the Senior Loan shall remain the same and, except for any rate creep that may occur as a result of the application of payments among the components of the Senior Loan in sequential order of priority, including, but not limited to, prepayments made in connection with an Event of Default, the application of casualty or condemnation proceeds, or releases of an Individual Property, there shall be no material adverse effect on the Junior Loans as a result of any such modifications of the Senior Loan. In addition, prior to a Securitization of the Senior Loan, Senior Lender may amend the Senior Loan Documents to extend the period during which voluntary prepayments are prohibited thereunder or impose additional prepayments premiums, provided that, as a condition thereto, the applicable Junior Borrowers shall execute and deliver a modification of its respective Junior Loan Documents to extend the period during which voluntary prepayments are prohibited thereunder for the same additional period of time as the Senior Loan lockout period is extended or provide for additional prepayment premiums comparable to those provided for in the modification of the Senior Loan.

(I) Cooperation. At the request of Senior Lender, each Junior Lender shall use reasonable efforts, at Senior Lender's expense, to satisfy, and to cooperate with Senior Lender in attempting to cause Borrower and its respective Junior Borrower to satisfy, the market standards to which Senior Lender customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies in connection with the Securitization of the Senior Loan, including, entering into (or consenting to, as applicable) any modifications to this Agreement or the Senior Loan Documents or the Junior Loan Documents, and to cooperate-with Senior Lender in attempting to cause Borrower and the Junior Borrowers to execute such modifications to the Senior Loan Documents and the applicable Junior Loan Documents, in any such case, as may be USActive 7415617.4 -86-

reasonably requested by the Rating Agencies to affect the Securitization; provided, however, a Junior Lender shall not be required to modify or amend this Agreement or any Senior Loan Documents or its respective Junior Loan Documents (or consent to such modification of the Senior Loan Documents), if such modification or amendment would (1) materially increase its respective Junior Borrower's obligations under its Junior Loan

Documents or materially decrease such Junior Lender's rights, remedies or protections thereunder, (2) change the economic terms allocable to the Junior Loans (including, without limitation, the basis upon which any reserve requirement is triggered or suspended) under the Senior Loan Documents and Junior Loan Documents) or (3) otherwise, in any Junior Lender's judgment, have any material adverse impact on such Junior Lender or its Junior Loan. In connection with any Securitization, each Junior Lender agrees to provide for inclusion in any disclosure document relating to the related Securitization such information concerning such Junior Lender as the Senior Lender reasonably determines to be necessary or appropriate. Subject to the foregoing qualifications in clauses (1) - (3) in the foregoing sentence, each Junior Lender agrees that if the Senior Loan is to be included as an asset of the Securitization, such Junior Lender shall at Senior Lender's request and expense, cooperate with the reasonable requests of each Rating Agency and Senior Lender in connection with the Securitization.

(m) Books and Records. Upon inspection of the books, records or Premises of Borrower by Senior Lender pursuant to the terms of the Senior Loan Documents, Senior Lender shall, upon request of any Junior Lender, take action to encourage Borrower to provide such Junior Lender access for its own inspection of such books, records or the Premises. Upon any inspection of the books, records or the Premises of any Junior Borrower by a Junior Lender, pursuant to the terms of its respective Junior Loan Documents, such Junior Lender shall, upon written request of Senior Lender and any other Junior Lender, take action to encourage its Junior Borrower to reasonably cooperate to provide Senior Lender and such other requesting Junior Lender access for its own inspection of such books, records or the Premises. The provisions of this Section 15(ml shall not be interpreted to limit in any way the rights in favor of any Junior Lender under its respective Junior Loan Documents.

(n) Certain Insurance Matters. Upon written reasonable request from any Junior Lender, Senior Lender shall request (to the extent consistent with the terms of the Senior Loan Documents), Borrower to obtain additional reasonable insurance coverage customarily being maintained for properties similar to the Premises, as contemplated under Section 3.01(a)(xiii) of the Senior Loan Agreement.

Section 16. Financing of the Junior Loans. (a) Notwithstanding any other provision hereof but subject to the provisions of Section 16(b), Senior Lender and each Junior Lender hereby consents to each Junior Lender's pledge (a "Pledge") of its respective Junior Loan and of the Separate Collateral to any entity which has extended a credit facility to such Junior Lender that is a Qualified Transferee or a financial institution whose long-term unsecured debt is rated at least "A" (or the equivalent) or better by each Rating Agency (a "Loan Pledgee"), on the terms and conditions set forth in this Section 16, it is also agreed that the sale by a Junior Lender of its respective Junior Loan to a Qualified Transferee and the simultaneous agreement by the such Junior Lender to repurchase its Junior Loan under an arrangement documented as a repurchase agreement) (the "Repo Agreement") shall qualify as a Pledge, provided all applicable terms and conditions of this subsection (a) are complied with; further provided that a Loan Pledgee which is not a USActive 7415617.4 -87-

Qualified Transferee may not take title to the Separate Collateral without a Rating Agency Confirmation. Upon written notice by a Junior Lender to Senior Lender and the other Junior Lenders that the Pledge has been effected, Senior Lender and each Junior Lender agrees to acknowledge receipt of such notice and thereafter agrees: (i) to give Loan Pledgee written notice of any default by the applicable Junior Lender under this Agreement of which default Senior

Lender or such Junior Lender has actual knowledge; (ii) to allow Loan Pledgee a period of ten (10) days (in respect of a monetary default) and thirty (30) days (in respect of a non- monetary default) by the applicable Junior Lender in respect of its obligations to Senior Lender or such Junior Lender hereunder, but Loan Pledgee shall not be obligated to cure any such default; (iii) that no amendment or modification of this Agreement which adversely affects the rights or obligations of the Junior Lender which has made a Pledge to such Loan Pledgee, and no waiver or termination of any applicable Junior Lender's rights under this Agreement, shall be effective against Loan Pledgee without the written consent of Loan Pledgee, which consent shall not be unreasonably withheld; provided, however, the consent of the Loan Pledgee shall not be required unless the applicable Junior Lender's consent was required pursuant to the terms of this Agreement to effect such modification, waiver or termination; (iv) that Senior Lender shall give to Loan Pledgee copies of any Senior Loan Default Notice and each Junior Lender shall give to Loan Pledgee copies of any Junior Loan Default Notice issued by such Junior Lender simultaneously with the giving of same to the applicable Junior Lender and accept any cure thereof by Loan Pledgee made in accordance with the provisions of Section 12 of this Agreement as if such cure were made by the applicable Junior Lender; (v) that Senior Lender and each Junior Lender shall deliver to Loan Pledgee such estoppel certificate(s) as Loan Pledgee shall reasonably request, provided that any such estoppel certificate(s) shall be in the form contemplated by Section 19 or in such other form reasonably acceptable to Senior Lender and such Junior Lender; and (vi) that, upon written notice (a "Redirection Notice") to Senior Lender or a Junior Lender by Loan Pledgee that either (x) states that the pledging Junior Lender is in default, beyond applicable cure periods, under such Junior Lender's obligations to Loan Pledgee pursuant to the applicable credit agreement (or Repo Agreement) between such Junior Lender and Loan Pledgee (which notice need not be joined in or confirmed by such Junior Lender), or (y) is joined in or confirmed by such pledging Junior Lender countersigning the Redirection Notice, and until such Redirection Notice is withdrawn or rescinded by Loan Pledgee, Senior Lender and each Junior Lender shall remit to the applicable Loan Pledgee and not to the applicable Junior Lender, any payments that Senior Lender or a Junior Lender would otherwise be obligated to pay to such Junior Lender from time to time pursuant to this Agreement, any Senior Loan Document, any Junior Loan Document or any other agreement between Senior Lender or any Junior Lender that relates to the Senior Loan or a Junior Loan. Each Junior Lender hereby unconditionally and absolutely releases Senior Lender and the other Junior Lenders from any liability to such Junior Lender on account of Senior Lender's or a Junior Lender's compliance with any Redirection Notice believed by Senior Lender or a Junior Lender to have been delivered by such Junior Lender's Loan Pledgee. Loan Pledgee shall be permitted to fully exercise its rights and remedies against the applicable Junior Lender, and realize on any and all collateral granted by the applicable Junior Lender to Loan Pledgee (and accept an assignment in lieu of foreclosure as to such collateral), in accordance with applicable law. In such event, the Senior Lender and each of the other Junior Lenders shall recognize Loan Pledgee (and any transferee which is also a Qualified Transferee at any foreclosure or similar sale held by Loan Pledgee or any transfer in lieu of such foreclosure), and its successors and assigns, as the USActive 7415617.4 -88-

successor to the applicable Junior Lender's rights, remedies and obligations under this Agreement and the Junior Loan Documents and any such Loan Pledgee or Qualified Transferee shall assume in writing (for the benefit of Senior Lender and the other Junior Lenders and their respective successors and assigns) the obligations of the applicable Junior Lender hereunder accruing from and after such Transfer and agrees to be bound by the terms and pro visions hereof,

it being agreed that, notwithstanding anything to the contrary contained herein, such Loan Pledgee shall not be required to so assume applicable Junior Lender's obligations hereunder prior to such realization on such collateral. The rights of Loan Pledgee under this Section 16 shall remain effective unless and until Loan Pledgee shall have notified the Senior Lender and Junior Lenders in writing that its interest in the applicable Junior Loan has terminated.

(b) Notwithstanding any provisions herein to the contrary, if a conduit ("Conduit") which is not a Qualified Transferee provides financing to Junior Lender, then such Conduit will be a permitted "Loan Pledgee" despite the fact it is not a Qualified Transferee if the following conditions are satisfied:

(i) the loan (the "Conduit Inventory Loan") made by the Conduit to the Junior Lender to finance the acquisition and holding of its interest in the junior Lender's Junior Loan will require a third party (the "Conduit Credit Enhancer") to provide credit enhancement;

(ii) the Conduit Credit Enhancer will be a Qualified Transferee;

(iii) the pledging Junior Lender will pledge its interest in the Junior Loan to the Conduit as collateral for the Conduit Inventory Loan;

(iv) the Conduit Credit Enhancer and the Conduit will agree that, if Junior Lender defaults under the Conduit Inventory. Loan, or if the Conduit is unable to refinance its outstanding commercial paper even if there is no default by Junior Lender, the Conduit Credit Enhancer will purchase the Conduit Inventory Loan from the Conduit, and the Conduit will assign the pledge of Junior Lender's interest in the Junior Loan to the Conduit Credit Enhancer; and

(v) unless the Conduit is in fact then a Qualified Transferee, the Conduit will not without obtaining a Rating Agency Confirmation from each Rating Agency have any greater right to acquire the interests in the Junior Loan pledged by the Junior Lender, by foreclosure or otherwise, than would any other purchaser that is not a Qualified Transferee at a foreclosure sale conducted by a Loan Pledgee.

Section 17. Obligations Hereunder Not Affected. (a) All rights, interests, agreements and obligations of Senior Lender and each Junior Lender under this Agreement shall remain in full force and effect irrespective of:

(i) any lack of validity or enforceability of any of the Senior Loan Documents or any of the Junior Loan Documents or any other agreement or instrument relating thereto;

any taking, exchange, release or non-perfection of any other collateral, or any taking, release or amendment or waiver of or consent to or departure from


any guaranty, for all or any portion of the Senior Loan or the Junior Loans;

(iii) any manner of application of collateral, or proceeds thereof, to all or any portion of the Senior Loan or the Junior Loans, or any manner of sale or other disposition

of any collateral for all or any portion of the Senior Loan or the Junior Loans or any other assets of Borrower or Junior Borrowers or any other Affiliates of Borrower or any Junior Borrower;

(iv) any change, restructuring or termination of the ownership structure or existence of Borrower, Junior Borrowers or any other Affiliates of Borrower; or

(v) any other circumstance which might otherwise constitute a defense available to, or a discharge of, Borrower, any Junior Borrower or a subordinated creditor or Senior Lender or any Junior Lender subject to the terms hereof.

(b) This Agreement shall continue to be effective or be reinstated, as the case may be, if at any time any payment of all or any portion of the Senior Loan or a Junior Loan is rescinded or must otherwise be returned by Senior Lender or a Junior Lender upon the insolvency, bankruptcy or reorganization of Borrower or a Junior Borrower or otherwise, all as though such payment had not been made.

Section 18. Notices. All notices, consents, approvals and requests (any of the foregoing a "Notice") required or permitted hereunder or under any other Loan Document shall be given in writing and shall be effective for all purposes if (i) hand delivered; (ii) sent by (A) certified or registered United States mail, postage prepaid, return receipt requested or (B) expedited prepaid delivery service, either commercial or United States Postal Service, with proof of attempted delivery, or (iii) sent by telecopier (with advice by telephone to recipient that a telecopy notice is forthcoming and a machine-generated confirmation of successful transmission), addressed as follows (or at such other address and Person as shall be designated from time to time by any party hereto, as the case may be, in a written notice to the other parties hereto in the manner provided for in this Section):

To Senior Lender:

Wachovia Bank, National Association Commercial Real Estate Services 8739 Research Drive URP 4 NC 1075 Charlotte, North Carolina 28262 Loan Number: ____________ Attention: Portfolio Management Fax No.: (704) 715-0036

and

Merrill Lynch Mortgage Lending, Inc. 4 World Financial Center, 10th

USActive 7415617.4 -90-

Floor New York, New York 10080 Attention: Robert Spinna Facsimile No.: (212) 449-0744

With a copy to:

Cadwalader, Wickersham & Taft LLP 227 West Trade Street, Suite 2400 Charlotte, North Carolina 28202 Attn: James P. Carroll, Esq. Fax No.: (704) 348-5200

and

Cadwalader, Wickersham & Taft LLP One World Financial Center New York, New York 10281 Attention: Alan Lawrence, Esq. Facsimile No.: (212) 504-6666

To Mezzanine 1 Lender:


and

Merrill Lynch Mortgage Lending, Inc. 4 World Financial Center, 10th Floor New York, New York 10080 Attention: Robert Spinna Facsimile No.: (212) 449-0744

With a copy to:


USActive 7415617.4 -91-




and

Merrill Lynch Mortgage Lending, Inc. 4 World Financial Center, 10th Floor N e w Y o r k , N e w Y o r k 1 0 0 8 0 Attention: Robert Spinna Facsimile No.: (212) 449-0744

With a copy to:


and

Cadwalader, Wickersham & Taft LLP One World Financial Center

New York, New York 10281 Attention: Alan Lawrence, Esq. Facsimile No.: (212) 504-6666

USActive 7415617.4 -92-


Wachovia Bank, National Association Commercial Real Estate Services 8739 Research Drive URP 4 NC 1075 Charlotte, North Carolina 28262

Loan Number: ____________ Attention: Portfolio Management Fax No.: (704) 715-0036

and


With a copy to:


and




USActive 7415617.4 -93-

and


With a copy to:


and




and

Merrill Lynch Mortgage Lending, Inc. 4 World Financial Center, 10th Floor N e w Y o r k , N e w Y o r k 1 0 0 8 0 Attention: Robert Spinna Facsimile No.: (212) 449-0744

USActive 7415617.4 -94-

With a copy to:

Cadwalader, Wickersham & Taft LLP 227 West Trade Street, Suite 2400 Charlotte, North Carolina 28202 Attn: James P. Carroll, Esq.

--- Fax No.: (704) 348-5200

and

Cadwalader, Wickersham & Taft I,LP One World Financial Center New York, New York 10281 Attention: Alan Lawrence, Esq. Facsimile No.: (212) 504-6666



and


With a copy to:


USActive 7415617.4 -95-

and

Cadwalader, Wickersharn & Taft LLP One World Financial Center New York, New York 10281 Attention: Alan Lawrence, Esq. Facsimile No.: (212) 504-6666



and


With a copy to:

Cadwalader, Wickersham & Taft LI,P 227 West Trade Street, Suite 2400 Charlotte, North Carolina 28202 Attn: James P. Carroll, Esq. Fax No.: (704) 348-5200

and


USActive 7415617.4 -96-



and


With a copy to:


and




USActive 7415617.4 -97-

and


With a copy to:


and

Cadwalader, Wickersham & Taft LIT One World Financial Center New York, New York 10281 Attention: Alan Lawrence, Esq. Facsimile No.: (212) 504-6666


Wachovia Bank, National Association Commercial Real Estate Services 8739 Research Drive URP 4 NC 1075 Charlotte, North Carolina 28262 Loan Number: Attention: Portfolio Management Fax No.: (704) 715-0036

and

Merrill Lynch Mortgage Lending, Inc. 4 World Financial Center, 10th Floor N e w Y o r k , N e w Y o rk 1 0 0 8 0 Attention: Robert Spinna Facsimile No.: (212) 449-0744

USActive 7415617.4 -98-

With a copy to:


and



Gramercy Warehouse Funding I LLC do Gramercy Capital Corp. 420 Lexington Avenue New York, New York 10170 Attention: Robert Foley Facsimile No.: (212) 297-1090

with a copy to:

Greenberg Traurig, LLP 900 Third Avenue New York, New York 10022 Attention: Gary S. Kleinman, Esq. Facsimile No.: (212) 605-1001

A notice shall be deemed to have been given: in the case of hand delivery, at the time of delivery; in the case of registered or certified mail, when delivered or the first attempted delivery on a Business Day; in the case of expedited prepaid delivery, upon the first attempted delivery on a Business Day; or in the case of telecopy, upon sender's receipt of a machine-generated confirmation of successful transmission after advice by telephone to recipient that a telecopy notice is forthcoming.

Section 19. Estoppel. (a) Each Junior Lender shalt, within ten (10) days following a request from Senior Lender or another Junior Lender, provide Senior Lender or such Junior Lender with a written statement setting forth the then current outstanding principal balance of the Junior Loan held by such Junior Lender, the aggregate accrued and unpaid interest under the Junior Loan held by such Junior Lender, and stating whether to USActive 7415617.4 -99-

such Junior Lender's knowledge any default or Event of Default exists under the Junior Loan held by such Junior Lender or this Agreement.

(b) Senior Lender shall, within ten (10) days following a request from a Junior Lender, provide such Junior Lender with a written statement setting forth the then current outstanding principal balance of the Senior Loan, the aggregate accrued and unpaid interest under the Senior Loan, and stating whether to Senior Lender's knowledge any default or Event of Default exists under the Senior Loan or this Agreement.

(c) Any statement provided pursuant to this Section 19 may be relied upon by any Loan Pledgee, any investor or participant in the Senior Loan or any Junior Loan, or any purchaser of the Senior Loan or any Junior Loan (or of any interest or a participation interest therein), but may not be relied upon by Borrower, any Junior Borrower or any guarantor with respect to the Senior Loan or any Junior Loan.

Section 20. Further Assurances. So long as all or any portion of the Senior Loan or any Junior Loan remains unpaid and any Senior Loan Document encumbers the Premises or a Junior Loan Document encumbers the Equity Collateral, Senior Lender and each Junior Lender shall each execute, acknowledge and deliver in recordable form and upon demand of the other, any other instruments or agreements reasonably required in order to carry out the provisions of this Agreement or to effectuate the intent and purposes hereof.

Section 21. No Third Party Beneficiaries; No Modification. The parties hereto do not intend the benefits of this Agreement to inure to Borrower, any Junior Borrower or any other Person other than the parties hereto and the successors and permitted assigns and a Loan Pledgee. This Agreement may not be changed or terminated orally, but only by an agreement in writing signed by the party against whom enforcement of any change is sought. If any Certificates are outstanding, this Agreement will not be amended in any material respect unless a Rating Agency Confirmation has been obtained with respect to such amendment.

Section 22. Successors and Assim. This Agreement shall bind all successors and permitted assigns of each Junior Lender and Senior Lender and shall inure to the benefit of all successors and permitted assigns of Senior Lender and each Junior Lender.


Section 24. Governing Law; Waiver of Jury Trial. THIS AGREEMENT AND THE RESPECTIVE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE. EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT.

USActive 7415617.4 -100-

Section 25. Consents to Jurisdiction. Each of the parties hereto irrevocably and unconditionally submits to the jurisdiction of the United States District Court for the Southern District of New York, any court in the State of New York located in the borough of Manhattan in

the city and county of New York, and any appellate court from any thereof, in any action, proceeding or counterclaim arising out of or relating to this Agreement or the transactions contemplated hereunder or for recognition or enforcement of any judgment and each of the parties hereto irrevocably and unconditionally agrees that all claims in respect of any action, proceeding or counterclaim arising out of or relating to this Agreement or the transactions contemplated hereunder may be heard or determined in such New York State court or, to the extent permitted by law, in such federal court.

Section 26. No Waiver by Senior Lender or Junior Lenders. Senior Lender shall not be prejudiced in its rights under this Agreement by any act or failure to act by Borrower or any Junior Lender, or any non-compliance of Borrower or any Junior Lender with any agreement or obligation, regardless of any knowledge thereof which Senior Lender may have or with which Senior Lender may be charged; and no action of Senior Lender permitted hereunder shall in any way affect or impair the rights of Senior Lender and the obligations of Junior Lender under this Agreement. No delay on the part of Senior Lender in the exercise of any rights or remedies shall operate as a waiver thereof, and no single or partial exercise by Senior Lender of any right or remedy shall preclude other or further exercise thereof or the exercise of any other right or remedy; nor shall any modification or waiver of any of the provisions of this Agreement be binding upon Senior Lender except as expressly set forth in a writing duly signed and delivered on behalf of Senior Lender. No Junior Lender shall be prejudiced in its rights under this Agreement by any act or failure to act by Borrower or Senior Lender or any Junior Borrower or other Junior Lender, or any non-compliance of Borrower or Senior Lender or any Junior Borrower or other Junior Lender with any agreement or obligation, regardless of any knowledge thereof which Junior Lender may have or with which Junior Lender may be charged; and no action of Junior Lender permitted hereunder shall in any way affect or impair the rights of such Junior Lender and the obligations of Senior Lender and any other Junior Lenders under this Agreement. No delay on the part of Junior Lender in the exercise of any rights or remedies shall operate as a waiver thereof, and no single or partial exercise by Junior Lender of any right or remedy shall preclude other right or remedy; nor shall any modification or waiver of any of the provisions of this Agreement be binding upon Junior Lender except as expressly set forth in a writing duly signed and delivered on behalf of Junior Lender. The remedies herein provided are cumulative and not exclusive of any remedies provided by law.


Section 28. captions. The captions in this Agreement are inserted only as a matter of convenience and for reference, and are not and shall not be deemed to be a part hereof.

Section 29. Conflicts. In the event of any conflict, ambiguity or inconsistency between the terms and conditions of this Agreement and the terms and conditions of any of the Senior Loan Documents or the Junior Loan Documents, the terms

USActive 7415617.4 -101-

and conditions of this Agreement shall prevail, as between Senior Lender and each Junior Lender, but shall not inure to the benefit of Borrower or any Junior Borrower.

Section 30. No Release. Nothing herein contained shall operate (a) to release Borrower from (i) its obligation to keep and perform all of the terms, conditions, obligations, covenants and agreements contained in the Senior Loan Documents or (ii) any liability of Borrower under the Senior Loan Documents or (b) to release any Junior Borrower from (i) its obligation to keep and perform all of the terms, conditions, obligations, covenants and agreements contained in the applicable Junior Loan Documents or (ii) any liability of a Junior Borrower under its respective Junior Loan Documents.

Section 31. Continuing Agreement. 'This Agreement is a continuing agreement and shall remain in full force and effect until the earlier of (x) payment in full of the Senior Loan and all of the Junior Loans or (y) transfer of title to the Junior Lenders of their respective Separate Collateral (provided however, in such instance this Agreement shall terminate with respect to any Junior Lender who acquires title to its respective Equity Collateral and any applicable Subordinate Junior Lenders) or (z) the transfer of all of the Premises by foreclosure of the Senior Loan Documents or the exercise of power of sale contained therein by deed-in-lieu of foreclosure; provided, however, that any rights or remedies of any party hereto arising out of any breach of any provision hereof occurring prior to the date of termination shall survive such termination. In the event the Senior Loan is repaid in full, (x) the Senior Junior Lender with the highest priority shall have the right to exercise all of the rights granted to Senior Lender pursuant to this Agreement and shall, from and after the repayment in full, be deemed to be the "Senior Lender" and to be the holder of the "Senior Loan" for all purposes without requiring the amendment of this Agreement, (y) references hereafter to the Senior Loan Agreement shall be deemed to be references to the Mezzanine 1 Loan Agreement and (z) references to "transfer of the Premises by foreclosure sale, sale by power of sale or delivery of a deed in lieu of foreclosure" (or words of similar import) shall be deemed to be references to transfer of the Mezzanine 1 Lender's Equity Collateral pursuant to any Equity Collateral Enforcement Action. Notwithstanding the foregoing provisions of this Section 31, in the event the Senior Loan or any Junior Loan is repaid in full, the Senior Lender or Junior Lender that was the holder of such repaid loan shall have no further rights under this Agreement, but this Agreement shall remain in effect as to any outstanding Junior Lender. Notwithstanding any termination of this Agreement with respect to any party hereto, each party hereto agrees that the restrictions regarding release of collateral set forth in Section 8 above shall remain enforceable with respect to any letter(s) of credit held by Senior Lender or any Junior Lender except as may be required pursuant to the Senior Loan Documents, the applicable Junior Loan Documents or applicable law.

Section 32. Severability. In the event that any provision of this Agreement or the application hereof to any party hereto shall, to any extent, be invalid or unenforceable under any applicable statute, regulation, or rule of law, then such provision shall be deemed inoperative to the extent that it may conflict therewith and shall be deemed modified to conform to such statute, regulation or rule of law, and the remainder of this Agreement and the application of any such invalid or unenforceable provisions to parties, jurisdictions or circumstances other than to whom or to which it is held invalid or unenforceable, shall not USActive 7415617.4 -102-

be affected thereby nor shall same affect the validity or enforceability of any other provision of this Agreement.

Section 33. Expenses. (a) To the extent not paid by Borrower or out of or from any collateral securing the Senior Loan which is realized by Senior Lender, each Junior Lender agrees upon demand to pay to Senior Lender the amount of any and all reasonable expenses,

including, without limitation, the reasonable fees and expenses of its counsel and of any experts or agents, which Senior Lender may incur in connection with the (i) exercise or enforcement of any of the rights of Senior Lender against such Junior Lender hereunder to the extent that Senior Lender is the prevailing party in any dispute with respect thereto or (ii) failure by such Junior Lender to perform or observe any of the provisions hereof.

(b) To the extent not paid by a Junior Borrower out of or from any collateral securing the related Junior Loan which is realized by the applicable Junior Lender, Senior Lender agrees upon demand to pay to such Junior Lender the amount of any and all reasonable expenses, including, without limitation, the reasonable fees and expenses of its counsel and of any experts or agents, which such Junior Lender may incur in connection with the (i) exercise or enforcement of any of the rights of such Junior Lender against Senior Lender hereunder to the extent that such Junior Lender is the prevailing party in any dispute with respect thereto or (ii) failure by Senior Lender to perform or observe any of the provisions hereof.

(c) To the extent not paid by a Junior Borrower out of or from any collateral securing the related Junior Loan which is realized by the applicable Junior Lender, each other Junior Lender agrees upon demand to pay to such Junior Lender the amount of any and all reasonable expenses, including, without limitation, the reasonable fees and expenses of its counsel and of any experts or agents, which such Junior Lender may incur in connection with the (i) exercise or enforcement of any of the rights of such Junior Lender against such other Junior Lender hereunder to the extent that such Junior Lender is the prevailing party in any dispute with respect thereto or (ii) failure by such other Junior Lender to perform or observe any of the provisions hereof.

Section 34. Injunction. Each party to this Agreement acknowledges (and waives any defense based on a claim) that monetary damages are not an adequate remedy to redress a breach by the other hereunder and that a breach by any party hereunder would cause irreparable harm to any other party to this Agreement. Accordingly, each party to this Agreement agrees that upon a breach of this Agreement by any other party, the remedies of injunction, declaratory judgment and specific performance shall be available to such non-breaching party.

Section 35. Mutual Disclaimer. (a) Senior Lender and the Junior Lenders are each sophisticated lenders and/or investors in real estate and their respective decision to enter into the Senior Loan and the Junior Loans is based upon their own independent expert evaluation of the terms, covenants, conditions and provisions of, respectively, the Senior Loan Documents and the Junior Loan Documents and such other matters, materials and market conditions and criteria which each of Senior Lender and the Junior Lenders deem relevant. Each of Senior Lender and each of the Junior Lenders has not relied in entering into this Agreement, and respectively, the Senior Loan, the Senior Loan Documents, the Junior Loans and the Junior Loan Documents upon any oral or written information, representation, warranty or covenant from any other party hereto (or any oral or written information, representation, warranty or covenant from any other party's representatives,

USActive 7415617.4 -103-

employees, Affiliates or agents) other than the representations and warranties, if any, of such other party contained herein and therein. Each of Senior Lender and each of the Junior Lenders further acknowledges that no employee, agent or representative of the other has been authorized to make, and that each of Senior Lender and the Junior Lenders have not relied upon, any statements, representations, warranties or covenants other than those

specifically contained in this Agreement. Without limiting the foregoing, each of Senior Lender and each of the Junior Lenders acknowledges that the other has made no representations or warranties as to the Senior Loan or the Junior Loans or the Premises (including, without limitation, the cash flow of the Premises, the value, marketability, condition or future performance thereof, the existence, status, adequacy or sufficiency of the leases, the tenancies or occupancies of the Premises, or the sufficiency of the cash flow of the Premises, to pay all amounts which may become due from time to time pursuant to the Senior Loan or the Junior Loans).

(b) Each of Senior Lender and each of the Junior Lenders acknowledges that the Senior Loan, the Senior Loan Documents, each of the Junior Loans, and each of the Junior Loan Documents are distinct, separate transactions and loans, separate and apart from each other. Each of Senior Lender and each of the Junior Lenders acknowledges that the other are distinct separate lenders with distinct and separate loans with various rights and remedies with respect to the Premises which are not in all respects aligned.

Section 36. Indemnification. Each Junior Lender shall, as to notices delivered by it, indemnify Senior Lender from and against any and all liabilities, obligations, losses, damages, penalties and expenses of any kind or nature whatever that may be imposed on, incurred by or asserted against Senior Lender in any manner relating to or arising out of Senior Lender's good faith reliance on any notice of default delivered by such Junior Lender to Senior Lender pursuant to which any excess cash flow that would otherwise be remitted to Borrower pursuant to the Senior Loan Documents is instead transferred to such Junior Lender pursuant to the its respective Junior Loan Documents.

Section 37. Servicing. Each Junior Lender acknowledges and agrees that each Junior Loan shall be serviced by Wachovia Bank, National Association, a national banking association, on behalf of such Junior Lender and each respective successor holder of such Junior Loan pursuant to that certain Loan Servicing Rights Purchase and Sale and Servicing Agreement by and between Wachovia Bank, National Association, a national banking association (in its respective capacities as Servicer and as Co-Lender), and Merrill Lynch Mortgage Lending, Inc., a Delaware corporation, as Co-Lender.


USActive 7415617.4 -104-

IN WITNESS REOF, Senior Lender and the Junior Lenders have executed this Agreement as of the date and year first set forth above.

SENIOR LENDER:

• WACHO VIA BANK, NATIONAL ASSOCIATION, a national banking

association

Robert A. Verrone Managing Director

MEZZANINE 1 LENDER:

WACHO VIA BANK, NATIONAL ASSOCIATION, a national banking association

By: _________________________________

Name: Title: Managing Director

MEZZANINE 2 LENDER:


Robert A. Verrone

By: _________________________________

Name: Robert A. Verrone Title: ,Managing Director

MEZZANINE 3 LENDER:


By: _________________________________ Name:

Title: Managing Director

MEZZANINE 4 LENDER:


MEZZANINE 5 LENDER:


By:. _________________________________

Name: Title: Robert A. Ve,rnne

Managing Director,

Robert A.

By: Name: Title:

Robert A. Verrone Managing Di t

MEZZANINE 6 LENDER:

WACHO VIA BANK, NATIONAL ASSOCIATION, a national banking association.

By: _________________________________

Name: Title: Robert A. Verrone

Managing Director

MEZZANINE 7 LENDER:

WACHO VIA BANK, NATIONAL ASSOCIATION, a national banking

association

By: ___________________ Name: Robert A. Verrone Title: Managing Director

MEZZANINE 8 LENDER:

WACHO VIA BANK, NATIONAL ASSOCIATION, a national

By: Name: Title: Robert A. Verrone

Managing Director

banking association

MEZZANINE 9 LENDER:


By: __________ Name:

Title: Managing Director

MEZZANINE 10 LENDER:


By: _________________________________

Name: Title: Robert A. Verrone

Managing Director

Robert A. Verrone

SENIOR LENDER:

MERRILL / CH MORTGAGE LEN I, Fis-G, INC., a Delaware corporation /

Name:N1.06EXCC Title: \)\

MEZZANINE 1 LENDER:

MERRILL LYNCH MORTGAGE LENDING, INC., a Delaware corporation

Nam t3cT T i t l e : \ C 3 - _ - - - ; L Y c

MEZZANINE 2 LENDER:

MERRILL LYNCH ORTGAGE LENDING, IN ., a Delaware corporation

By:

By

Name: Title:

By:

MEZZANINE 3 LENDER:


Name: cl‘NVt\\k( Title:

MEZZANINE 4 LENDER:

MERRILL LYNCH/MORTGAGE LENDING, INC:, a Delaware corporation

Name: Title: \)\.C._, \tee,'

MEZZANINE 5 LENDER:


Name:ILCD-&t.,Q.--\-- Title: \)

MEZZANINE 6 LENDER:

MERRILL LYNCH MORTGAGE LENDING, NC., a Delaware corporation

By:

By:

By:

By: __ Name:

Title:

MEZZANINE 7 LENDER:


By: _________________________________

Name: 'VS_5Zs-t"\---C<. Title: R

MEZZANINE 8 LENDER:


MEZZANINE 9 LENDER:


Name. "CD Title:



By: Name: Title:

By:

Name: Title: E.AN \

By:


GRAMERCY WAREHOUSE FUNDING I LLC, a

Delaware li - • bility

company

By:

Title:

Hugh F. Hall Chief Operating Officer

•

7415617 STPCV - Intercreditor Agreement

S C H E D U L E 1 (Borrowers)

PCV ST Owner LP and ST Owner LP, each a Delaware limited partnership (collectively, the "Senior Borrower")

PCV ST MEZZ 1 LP and ST MEZZ 1 LP, each a Delaware limited partnership (collectively, the "Mezzanine 1 Borrower")










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E X H I B I T A (Senior Loan Documents)

All documents dated as of February 16, 2007, unless otherwise indicated.

1. Amended and Restated Loan and Security Agreement (the "Senior Loan Agreement") between Senior Borrower and Senior Lender;

2. Amended and Restated Promissory Note (A-1) (the "Note A-1") made by Senior Borrower in favor of Senior Lender in the principal amount of $499,431,818.18;






8. Mortgage, Security Agreement, Assignment of Rents and Fixture Filing dated as of November 17, 2006, as amended pursuant to that certain First Amendment to Mortgage, Security Agreement, Assignment of Rents and Fixture Filing between Senior Borrower and Senior Lender (the "Mortgage");

9. Assignment of Leases and Rents and Security Deposits dated as of November 17, 2006, as amended pursuant to that certain First Amendment to Assignment of Leases and Rents and Security Deposits between Senior Borrower and Senior Lender (the "ALR");

10. Omnibus Amendment and Joinder Agreement by Senior Borrower to Senior

Lender;

11. Guaranty dated as of November 17, 2006, given by PCV ST JV LLC, a Delaware limited liability company (the "Guarantor") for the benefit of Senior Lender;

12. Certificate of Borrower as to Property Matters dated as of November 17, 2006, executed by PCV ST Owner LP for the benefit of Senior Lender;

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13. Central Account Agreement dated as of November 17, 2006, among PCV ST Owner LLC, Senior Lender and Wachovia Bank, National Association, a national banking association, as Bank;

14. Cooperation Agreement dated as of November 17, 2006, among PCV ST Owner LP, the Junior Borrowers, Senior Lender, the Junior Lenders (excluding Mezzanine 11 Lender) and Initial Mezzanine 11 Lender;

15. Loan Coordination Agreement dated as of November 17, 2006, among PCV ST Owner LP, the Junior Borrowers, Senior Lender, the Junior Lenders (excluding Mezzanine 11 Lender) and Initial Mezzanine 11 Lender;

16. Consent and Agreement dated as of November 17, 2006, executed by Rose Associates, Inc., and PCV ST Owner LP and acknowledged by Senior Lender, the Junior Lenders (excluding Mezzanine 11 Lender) and Initial Mezzanine 11 Lender;

17. Title Insurance Policy No. F 1 i s s u e d b y F i r s t A m e r i c a n T i t l e I n s u r a n c e Company with coinsurance.

18. Comfort Letter issued by First American Title Insurance Company and co-

insurers.

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E X H I B I T B (Mezzanine 1 Loan Documents)


1. Amended and Restated Mezzanine 1 Loan Agreement, (the "Mezzanine 1 Loan Agreement") between Mezzanine 1 Borrower and Mezzanine 1 Lender;

2. Amended and Restated Promissory Note (Mezzanine 1 Loan), (the "Mezzanine 1 Note") made by Mezzanine 1 Borrower in favor of Mezzanine 1 Lender in the principal amount of $100,000,000.00;

3. Amended and Restated Pledge and Security Agreement, between Mezzanine 1 Borrower and Mezzanine 1 Lender;

4. Omnibus Amendment and Joinder Agreement (Mezzanine 1 Loan) by Mezzanine 1 Borrower to Mezzanine 1 Lender;

5. Guaranty (Mezzanine 1 Loan) dated as of November 17, 2006, given by Guarantor for the benefit of Mezzanine 1 Lender;

6. Deposit Account Agreement (Mezzanine 1 Loan) dated as of November 17, 2006, among PCV ST Mezz 1 LP, Mezzanine 1 Lender and Wachovia Bank, National Association as Bank;

7. Certificate of Borrower as to Property Matters dated as of November 17, 2006, executed by PCV ST Mezz 1 LP for the benefit of Mezzanine 1 Lender;

8. UCC Financing Statements;

9. Acknowledgments and Consents dated as of November 17, 2006, and February 16, 2007 (as applicable);

10. Certificates for Limited Partner Interest in PCV ST Owner LP and ST Owner LP, respectively (collectively, "Mezzanine 1 LP Certificate");

11. Certificates for Limited Liability Company Interest in PCV ST Owner GP LLC and ST Owner GP LLC, respectively (collectively, the "Mezzanine 1 LLC Certificate", and together with the Mezzanine 1 LP Certificate, the "Mezzanine 1 Certificates");

12. Cooperation Agreement dated as of November 17, 2006, among PCV ST Owner LP, the Junior Borrowers, Senior Lender, the Junior Lenders (excluding Mezzanine 11 Lender), and Initial Mezzanine 11 Lender;

13. Loan Coordination Agreement dated as of November 17, 2006, among PCV ST

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Owner LP, the Junior Borrowers, Senior Lender, the Junior Lenders (excluding Mezzanine 11 Lender), and Initial Mezzanine 11 Lender;

14. Consent and Agreement dated as of November 17, 2006, executed by Rose Associates, Inc., and PC'V ST Owner LP and acknowledged by Senior Lender, the Junior Lenders (excluding Mezzanine 11 Lender), and Initial Mezzanine 11 Lender;

15. Assignment of Title Insurance Proceeds dated as of November 17, 2006, given by PCV ST Owner LP and the Junior Borrowers in favor of Senior Lender, the Junior Lenders (excluding Mezzanine 11 Lender), and Initial Mezzanine 11 Lender;

16. Amendment to Assignment of Title Insurance Proceeds, given by Senior Borrower and the Junior Borrowers in favor of Senior Lender, the Junior Lenders (excluding Mezzanine 11 Lender), and Initial Mezzanine 11 Lender;

17. UCC9 Title Insurance Policy No. [ 1 i s s u e d b y F i r s t A m e r i c a n T i t l e Insurance Company with coinsurance.

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E X H I B I T C (Mezzanine 2 Loan Documents)







6. Deposit Account Agreement (Mezzanine 2 Loan) dated as of November 17, 2006, among Mezzanine 2 Borrower, Mezzanine 2 Lender and Wachovia Bank, National Association as Bank;

7. Certificate of Borrower as to Property Matters dated as of November 17, 2006, executed by Mezzanine 2 Borrower for the benefit of Mezzanine 2 Lender;



10. Certificates for Limited Partner Interest in PCV ST Mezz 1 LP and ST Mezz 1 LP, respectively (collectively, the "Mezzanine 2 LP Certificate");

11. Certificates for Limited Liability Company Interest in PCV ST Mezz 1 GP LLC and ST Mezz 1 GP LLC respectively (collectively, the "Mezzanine 2 LLC Certificate", and together with the Mezzanine 2 LP Certificate, the "Mezzanine 2 Certificates");



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14. Consent and Agreement dated as of November 17, 2006, executed by Rose Associates, Inc., and PCV ST Owner LP and acknowledged by Senior Lender, the Junior Lenders (excluding Mezzanine 11 Lender), and Initial Mezzanine 11 Lender;




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E X H I B I T D (Mezzanine 3 Loan Documents)











10. Certificates for Limited Partner Interest in PCV ST Mezz 2 LP and ST Mezz 2 LP (the "Mezzanine 3 LP Certificate");




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17. UCC9 Title Insurance Policy No. 1 1 i s s u e d b y F i r s t A m e r i c a n T i t l e Insurance Company with coinsurance.

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E X H I B I T E (Mezzanine 4 Loan Documents)









8. IJCC Financing Statements;


10. Certificates for Limited Partner Interest in PCV ST Mezz 3 LP and ST Mezz 3 LP respectively (collectively, the "Mezzanine 4 LP Certificate");




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17. UCC9 Title Insurance Policy No. f 1 i s s u e d b y F i r s t A m e r i c a n T i t l e Insurance Company with coinsurance.

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E X H I B I T F (Mezzanine 5 Loan Documents)















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E X H I B I T G (Mezzanine 6 Loan Documents)















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17. UCC9 Title Insurance Policy No. F 1 issued by First American Title Insurance Company with coinsurance.

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E X H I B I T H Mezzanine 7 Loan Documents)














13. Loan Coordination Agreement dated as of November 17, 2006, among PCV ST Owner LP, the Junior Borrowers, Senior Lender, the Junior Lenders (excluding

USActive 7415617.4 EXH. H-1

Mezzanine 11 Lender), and Initial Mezzanine 11 Lender;



• 16. Amendment to Assignment of Title Insurance Proceeds, given by Senior Borrower and the Junior Borrowers in favor of Senior Lender, the Junior Lenders (excluding Mezzanine 11 Lender), and Initial Mezzanine 11 Lender;

17. UCC9 Title Insurance Policy No. 1 1 issued by First American Title Insurance Company with coinsurance.

USActive 7415617.4 EXH. H-2

E X H I B I T I (Mezzanine 8 Loan Documents)







6. Deposit Account Agreement (Mezzanine 8 Loan) dated as of November 17, 2006, among Mezzanine 8 Borrower, Mezzanine 8 Lender and Wachovia ank, National Association as Bank;








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E X H I B I T J (Mezzanine 9 Loan Documents)







6. Deposit Account Agreement (Mezzanine 9 Loan) dated as of November 17„ 2006, among Mezzanine 9 Borrower, Mezzanine 9 Lender and Wachovia Bank, National Association as Bank;







11 Loan Coordination Agreement dated as of November 17, 2006, among PCV ST


14. Consent and Agreement dated as of November 17, 2006, executed by Rose Associates, Inc., and PCV ST Owner LP and acknowledged by Senior Lender, the junior Lenders (excluding Mezzanine 11 Lender), and Initial Mezzanine 11 Lender;



17. UCC9 Title Insurance Policy No. I- 1 i s s u e d b y F i r s t A m e r i c a n T i t l e Insurance Company with coinsurance.


E X H I B I T K (Mezzanine 10 Loan Documents)












11_ Certificates for Limited Liability Company Interest in PCV ST Mezz 9 GP LLC and ST Mezz 9 GP LLC respectively (collectively, the "Mezzanine 10 LLC Certificate", and together with the Mezzanine 10 LP Certificate, the "Mezzanine 10 Certificates");



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E X H I B I T L (Mezzanine 1/ Loan Documents)






5. Guaranty (Mezzanine 11 Loan) dated as of November 17, 2006, given by Guarantor for the benefit of Initial Mezzanine 11 Lender;

6. Deposit Account Agreement (Mezzanine 11 Loan) dated as of November 17, 2006, among Mezzanine 11 Borrower, Initial Mezzanine 11 Lender and Wachovia Bank, National Association as Bank;

7. Certificate of Borrower as to Property Matters dated as of November 17, 2006, executed by Mezzanine 11 Borrower for the benefit of Initial Mezzanine 11 Lender;







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17. UCC9 Title Insurance Policy No. 1 1 i s s u e d b y F i r s t A m e r i c a n T i t l e Insurance Company with coinsurance.

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EXHIBIT M (Reserved)

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EXHIBIT N (Permitted Fund Managers

1. DLJ Real Estate Capital Partners

2. iStar Financial Inc.

3. Capital Trust, Inc.

4. Archon Capital, L.P.

5. Whitehall Street Real Estate Fund, L.P.

6. The Blackstone Group International Ltd.

7. Apollo Real Estate Advisors

8. Colony Capital, Inc.

9. Praedium Group

10. J.E. Robert Companies

11. Fortress Investment Group LLC

12. Lone Star Opportunity Fund

13. Clarion Partners

14. Walton Street Capital, LLC

15. Starwood Financial Trust

16. BlackRock, Inc.

USActive 7415617.4 EXIT. N-1

CURRENT 8188526v7


by and between


as Senior Lender

and

CRESCENT REAL ESTATE CAPITAL, L.P.,

as Mezzanine Lender

Dated as of January 20, 2006

Premises: Ocean Resorts Portfolio Daytona Beach, Florida

CURRENT 8188526v7


THIS INTERCREDITOR AGREEMENT (this “Agreement”), dated as of January 20, 2006 by and between WACHOVIA BANK, NATIONAL ASSOCIATION, having an address at Wachovia Bank, National Association, Commercial Real Estate Services, 8739 Research Drive URP 4, NC 1075, Charlotte, North Carolina 28262 (“Senior Lender”), and CRESCENT REAL ESTATE CAPITAL, L.P., having an address c/o Crescent Real Estate Equities Limited Partnership, 777 Main Street, Suite 2100, Fort Worth, TX 76102 (“Mezzanine Lender”).

RECITALS

WHEREAS, Senior Lender has made or is about to make a loan to Bray & Gillespie, LLC XIV, Bray & Gillespie Plaza Developments, LLC, Bray & Gillespie, LLC VI, Bray & Gillespie, LLC V, Bray & Gillespie, LLC XV and Bray & Gillespie La Playa, LLC (collectively, “Borrower”) in the original principal amount of $95,000,000 (the “Senior Loan”), which Senior Loan is evidenced by a certain Amended, Restated and Consolidated Promissory Note, dated as of January 4, 2006, made by Borrower to Senior Lender in the amount of the Senior Loan (as the same may be amended, restated, extended, supplemented or otherwise modified from time to time, the “Amended and Restated Note”), and secured by, among other things, certain Mortgages, Security Agreements, Assignments of Rents and Fixture Filings, dated as of January 4, 2006, made by Borrower in favor of Senior Lender (as the same may be amended, restated, extended, supplemented or otherwise modified from time to time, the “Senior Mortgage”), which Senior Mortgage encumbers the real property described on Exhibit A attached hereto and made a part hereof, and all improvements thereon and appurtenances thereto (collectively, the “Premises”);

WHEREAS, Mezzanine Lender is the owner and holder of a loan to Bray & Gillespie Holdings, LLC (“Mezzanine Borrower”) in the original principal amount of $15,000,000.00 (the “Mezzanine Loan”), which Mezzanine Loan is evidenced by a certain Promissory Note, dated as of January 4, 2006, made by Mezzanine Borrower in favor of Mezzanine Lender in the amount of the Mezzanine Loan (as the same may be amended, restated, extended, supplemented or otherwise modified from time to time, the “Mezzanine Note”), and secured by, among other things, a Loan and Security Agreement, dated as of January 4, 2006, from Mezzanine Borrower pursuant to which Mezzanine Lender is granted a first priority security interest in all of Mezzanine Borrower’s direct or indirect ownership interests in Borrower (as the same may be amended, restated, extended, supplemented or otherwise modified from time to time, the “Pledge Agreement”); and

WHEREAS, Senior Lender and 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) and the 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 between the Mezzanine Loan and the Mezzanine Loan Documents, on the one hand, and the Senior Loan and the Senior Loan Documents, on the other hand.

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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 and 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.

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

“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 (a) a Saturday or Sunday, or (b) a day on which banking and savings and loan institutions in the State of New York, the State of Texas or the State of North Carolina are authorized or obligated by law or executive order to be closed, or (c) at any time during which the Senior Loan is an asset of a Securitization, a day on which banking institutions are authorized or obligated by law or executive order to be closed in the cities, states and/or commonwealths used in the comparable definition of “Business Day” in the Securitization documents.

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

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

“Continuing Senior Loan Event of Default” means an Event of Default under the Senior Loan which has not been cured for which (i) Senior Lender has provided notice of such Event of Default to Mezzanine Lender in accordance with Section 11(a) hereof and (ii) the cure period provided to Mezzanine Lender in Section 11(a) hereof 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.

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“Controlled by,” “Controlling” and “under common Control with” shall have the respective correlative meaning thereto. For purposes of this definition, if more than one Qualified Transferee collectively owns (directly or indirectly), more than fifty percent (50%) of the beneficial ownership interests of an entity and one or more of the Qualified Transferees possess the power to direct or cause the direction of the management or policies of the entity, whether through the ability to exercise voting power, by contract or otherwise, even though each such Qualified Transferee individually owns less than fifty percent (50%) of such beneficial interests, such entity shall be deemed to be “Controlled” by a Qualified Transferee.

“Directing Mezzanine Lender” has the meaning provided in Section 4(c) 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 or similar fiduciary) capital/statutory surplus or shareholders’ equity of $250,000,000 and (ii) is regularly engaged in the business of making or owning commercial real estate loans or operating 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 or any material portion thereof, (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 the direct or indirect equity interests of Borrower pledged pursuant to the Pledge Agreement.

“Equity Collateral Enforcement Action” means any action or proceeding or other exercise of Mezzanine Lender’s rights and remedies commenced by Mezzanine Lender, 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” means (i) with respect to the Senior Loan and the Senior Loan Documents, any Event of Default thereunder which has occurred and is continuing (i.e., has not been cured by Borrower or by Mezzanine Lender in accordance with the terms of this Agreement or waived in writing by Senior Lender) and (ii) with respect to the Mezzanine Loan and the Mezzanine Loan Documents, any Event of Default thereunder which has occurred and is continuing (i.e., has not been cured by Mezzanine Borrower or waived in writing by Mezzanine Lender).

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

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

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

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

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

“Mezzanine Loan Cash Management Agreement” means any cash management agreement executed in connection with, or the cash management provisions of, the Mezzanine Loan Documents as the same may be modified, amended, extended, supplemented, restated or replaced from time to time, subject to the limitations and agreements contained in this Agreement.

“Mezzanine Loan Documents” means the Mezzanine Note and the Pledge Agreement, together with all documents and instruments set forth on Exhibit C hereto, 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.

“Mezzanine Loan Modification” has the meaning provided in Section 7(b) hereof.

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

“Monetary Cure Period” has the meaning provided in Section 11(a) hereof.

“Permitted Fund Manager” means any Person or any Affiliate of such Person that on the date of determination is (i) a nationally-recognized manager of investment funds investing in debt or equity interests relating to commercial real estate or an entity that is otherwise a Qualified Transferee under clauses (ii)(A), (B), (C) or (D) of the definition thereof, (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.

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

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

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

“Protective Advances” means all sums advanced for the purpose of payment of real estate taxes (including special payments in lieu of real estate taxes), maintenance costs, insurance premiums or other items (including capital items) and operating expenses incurred in

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the ordinary course, reasonably necessary to protect the Premises or any portion thereof or the Separate Collateral, respectively, from forfeiture, casualty, loss or waste, including, with respect to the Mezzanine Loan, amounts advanced or otherwise paid by Mezzanine Lender pursuant to Section 11 hereof.

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

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

“Qualified Manager” means a property manager of the Premises which (i) is a reputable management company having at least seven (7) years’ experience in the management of full service luxury or full service upscale Florida ocean-front hotel properties, (ii) at the time of its engagement as property manager manages five (5) full service luxury or full service upscale Florida ocean-front hotel properties having not less than five (5) times the number of hotel rooms located at the Premises, including, without limitation, certain full service luxury or full service upscale hotel properties which contain more than 250 hotel rooms, and (iii) is not the subject of a bankruptcy or similar insolvency proceeding

“Qualified Transferee” means (i) Mezzanine Lender, or (ii) one or more of the following:


(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) that satisfies the Eligibility Requirements;

(D) any entity Controlling, Controlled by 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;

(E) a Qualified Trustee in connection with a securitization of, the creation of collateralized debt obligations (“CDO”) secured by or financed through an “owner trust” of, the Mezzanine Loan (collectively, “Securitization Vehicles”), so long as (A) the special servicer or manager of such Securitization Vehicle has the Required Special Servicer Rating and (B) the entire “controlling class” of such Securitization Vehicle, other than with respect to a CDO Securitization Vehicle, is held by one or more entities that are otherwise Qualified Transferees under clauses (ii)(A), (B), (C) or (D) of this definition; provided that the operative documents of the related Securitization Vehicle

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require that (1) in the case of a CDO Securitization Vehicle, the “equity interest” in such Securitization Vehicle is owned by one or more entities that are Qualified Transferees under clauses (ii)(A), (B), (C) or (D) of this definition and (2) if any of the relevant trustee, special servicer or manager fails to meet the requirements of this clause (E), such Person must be replaced by a Person meeting the requirements of this clause (E) within thirty (30) days;

(F) an investment fund, limited liability company, limited partnership or general partnership where a Permitted Fund Manager or an entity that is otherwise a Qualified Transferee under clauses (ii)(A), (B), (C) or (D) of this definition investing through a fund with committed capital of at least $250,000,000 acts as the 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) or (D) of this definition; provided, however, that so long as the organizational documents of the applicable investment fund, limited liability company, limited partnership or general partnership vest all managerial control in a Permitted Fund Manager, then the other Persons owning equity interests in such investment vehicle shall not be required to satisfy the conditions set forth in clause (ii) of the definition of “Eligibility Requirements” relating to the nature of their business experience but shall nonetheless be required to satisfy the conditions set forth in clause (i) of the definition of “Eligibility Requirements;” or

(G) any Person which is a Qualified Transferee (pursuant to the foregoing clauses) but is acting in any agency or manager capacity in connection with a lending syndicate, so long as at least fifty-one percent (51%) or more of the lenders in the lending syndicate (by then current loan balance) are Qualified Transferees (pursuant to the foregoing clauses).

“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

7 CURRENT 8188526v7

Securitization, any action that would otherwise require a Rating Agency Confirmation shall require the consent of Senior Lender, which consent shall not be unreasonably withheld or delayed.

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

“Required Special Servicer Rating” means (i) a rating of “CSS2” in the case of Fitch, (ii) on the S&P Select Servicer List as a U.S. Commercial 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.

“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 Cash Management Agreement” means any cash management agreement or agreements executed in connection with, or cash management provisions of, the Senior Loan Documents as the same 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 Default Notice” has the meaning provided in Section 11(a) hereof.

“Senior Loan Documents” means the Senior Note and the Senior Mortgage, together with the instruments and documents set forth on Exhibit B hereto, 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.

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

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

“Separate Collateral” means (i) the Equity Collateral, (ii) the accounts established pursuant to the Mezzanine Loan Cash Management Agreement and monies deposited properly therein from time to time in compliance with the Senior Loan Documents and this Agreement, and (iii) any other collateral, guaranties or rights now or hereafter given as security for the Mezzanine Loan pursuant to the Mezzanine Loan Documents, in each case not directly constituting security for the Senior Loan.

“SPE Constituent Entity” means Borrower and Mezzanine Borrower.1

“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.



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


1 B&G Mortgage: “Borrower and, if applicable, each General Partner at all times since

their formation have been duly formed and existing and shall preserve and keep in full force and effect their existence as a Single Purpose Entity” and “General Partner” shall mean, if Borrower is a partnership, each general partner of Borrower and, if Borrower is a limited liability company, each managing member of Borrower and in each case, if applicable, each general partner or managing member of such general partner or managing member. In the event that Borrower or any General Partner is a single member limited liability company, the term “General Partner” shall include such single member.

9 CURRENT 8188526v7

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

(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.


(a) 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, subject to the terms and provisions of this Agreement, all of the terms and provisions of the Senior Loan Documents, (ii) the execution, delivery and performance of the Senior 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 Mezzanine Loan Documents, (iii) Senior Lender is under no obligation or duty to, nor has Senior Lender represented that it will, see to the application of the proceeds of the Senior Loan by Borrower or any other Person to whom Senior Lender disburses such proceeds, and (iv) 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.

(b) 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 Loan 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) Mezzanine Lender is under no obligation or duty to, nor has Mezzanine Lender represented that it will, see to the application of the proceeds of the Mezzanine Loan by Mezzanine Borrower or any other Person to whom Mezzanine Lender disburses such proceeds and (iv) any application or use of the proceeds of the Mezzanine Loan

10 CURRENT 8188526v7

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 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 Borrower, as they apply to the Mezzanine Loan Documents or the making of the Mezzanine Loan, have been either satisfied or waived.

(c) Notwithstanding any provisions herein 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, the circumstances giving rise to a default or Event of Default under the Mezzanine Loan Documents may give rise to a default or Event of Default under the Senior Loan Documents.


(a) Mezzanine Lender hereby represents and warrants as follows:

(i) Exhibit C attached hereto and made a part hereof is a true, correct and complete listing of all of the Mezzanine Loan Documents as of the date hereof. To 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 any of the Mezzanine Loan Documents.

(ii) Mezzanine Lender is the legal and beneficial owner of the entire 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 contemplated by the provisions of Section 15 hereof.


(iv) Mezzanine Lender has, independently and without reliance upon Senior 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.

(v) 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.

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

(vii) Mezzanine Lender has duly executed and delivered this Agreement and this Agreement constitutes the legal, valid, and binding agreement of Mezzanine


Lender enforceable against 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.

(viii) To 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 Mezzanine Lender of this Agreement or consummation by Mezzanine Lender of the transactions contemplated by this Agreement.

(ix) 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 Mezzanine Lender, (w) to 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 Mezzanine Lender is a party or to which any of its properties are subject, (x) to Mezzanine 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 Mezzanine Lender pursuant to the terms of any such contract, mortgage, lease, bond, indenture, agreement, franchise, or other instrument (provided, however, that Mezzanine Lender shall have the right to grant a lien, charge, encumbrance, claim or security interest in the 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 Mezzanine Lender has knowledge against, or binding upon, Mezzanine Lender or upon any of the securities, properties, assets, or business of Mezzanine Lender or (z) to Mezzanine Lender’s knowledge, constitute a violation by Mezzanine Lender of any statute, law or regulation that is applicable to Mezzanine Lender.

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

(b) Senior Lender hereby represents and warrants as follows:

(i) Exhibit B attached hereto and made a part hereof is a true, correct and complete listing of the Senior Loan Documents as of the date hereof. 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.


(ii) 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 other than the rights of any participants in the Senior Loan.


(iv) Senior Lender has, independently and without reliance upon 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.

(v) 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) 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.

(viii) 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.

(ix) 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.

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

Section 4. Transfer of Mezzanine Loan or Senior Loan.

(a) Except as otherwise permitted in Section 15 hereof, Mezzanine Lender shall not Transfer more than 49% of its beneficial interest in the Mezzanine Loan unless (i) if such Transfer occurs prior to the first to occur of (A) six (6) months after the date hereof and (B) a Securitization, Senior Lender has consented in writing to such Transfer if not made to a wholly-owned subsidiary of Crescent Real Estate Equities, Ltd. (“Crescent”) or a Qualified Transferee Controlled by Crescent, which consent shall not be unreasonably withheld or delayed by Senior Lender, or (ii) if such Transfer occurs after a Securitization (x) 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 (y) such Transfer is to a Qualified Transferee; provided, however, if any Transfer that occurs subsequent to six (6) months after the date hereof but prior to a Securitization shall require the consent of Senior Lender unless such Transfer is to a Qualified Transferee. Any such transferee (other than a participant or, prior to the foreclosure of any interest pledged to it, a pledgee permitted in Section 15 hereof) must assume in writing the obligations of Mezzanine Lender hereunder and agree to be bound by the terms and provisions hereof. Such proposed transferee (other than a participant or, prior to foreclosure of any interest pledged to it, a pledgee permitted in Section 15 hereof) shall also remake each of the representations and warranties contained herein for the benefit of Senior Lender (except that, with respect to the representation contained in the second sentence of Section 3(a)(i), to the extent that Mezzanine Lender has knowledge that a default exists under the Mezzanine Loan, Mezzanine Lender shall qualify such representation by describing the default and its intended course of action with respect thereto, and in the case of the representation contained in Section 3(a)(ii), if the assignee holds less than all of the Mezzanine Loan it shall make such representation only as to the interest in the Mezzanine Loan held by such assignee, and provided further that in the case of an outright assignment of the Mezzanine Loan, for purposes of remaking the representations in Section 3(a), all references in such representations to “this Agreement” shall be deemed to refer to the assumption agreement being executed by the assignee).

(b) At least five (5) days prior to a Transfer of more than 49% of its beneficial interest in the Mezzanine Loan to a Qualified Transferee, Mezzanine Lender shall provide to Senior Lender and, if any Certificates are outstanding, to the Rating Agencies, a certification that such transfer will be made in accordance with this Section 4, such certification to include the name and contact information of the Qualified Transferee.

(c) If more than one Person shall hold a direct interest in the Mezzanine Loan, the holder(s) of more than 50% of the principal amount of the Mezzanine Loan shall designate by written notice to Senior Lender one of such Persons (the “Directing Mezzanine Lender”) to


act on behalf of all such Persons holding an interest in the 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 under the Mezzanine Loan pursuant to this Agreement and to exercise the rights and power given to Mezzanine Lender hereunder, including any approval rights of Mezzanine Lender; provided, that until the Directing Mezzanine Lender has been so designated, the last Person known to Senior Lender to hold more than a 50% direct interest in the Mezzanine Loan shall be deemed to be the Directing Mezzanine Lender. Once the Directing Mezzanine Lender has been designated hereunder, Senior 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 Mezzanine Loan of the designation of a different Person to act as the Directing Mezzanine Lender.

(d) 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 hereof, Senior Lender may, from time to time, in its sole discretion Transfer all or any of the Senior Loan or any interest therein provided that the terms and provisions of this Agreement shall be binding on Senior Lender’s successors and assigns, 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 Loan and the Mezzanine Loan Documents in accordance with the terms and provisions of this Agreement.

(f) Notwithstanding anything contained in this Agreement, Mezzanine Lender agrees that it shall in no event Transfer any portion of the Mezzanine Loan or any interest therein to Borrower or any Person which is an Affiliate of Borrower and any such Transfer shall be void ab initio and Senior Lender agrees that it will in no event Transfer any Controlling interest in the Senior Loan (whether in one transaction or a series of transactions) to Borrower or any Person which is an Affiliate of Borrower unless Senior Lender shall have first offered to sell such Controlling interest in the Senior Loan to Mezzanine Lender and Mezzanine Lender has failed to (i) agree to purchase such Controlling interest in the Senior Loan within five (5) Business Days of such offer and deliver to Senior Lender a non-refundable purchase deposit in immediately available funds of 20% of the purchase price or (ii) tender, against transfer of such Controlling interest in the Senior Loan by Senior Lender free of any lien arising by, through or under Senior Lender but otherwise without representation or warranty, the balance of the purchase price in immediately available funds within ten (10) Business Days after Mezzanine Lender accepts such offer and makes its purchase deposit. For purposes of this Section 4(f), Mezzanine Lender’s purchase price for such Controlling interest in the Senior Loan shall be the lesser of (x) the purchase price offered by the Borrower or the Affiliate of Borrower, as applicable (the “Borrower Purchase Price”) and (y) the Loan Purchase Price multiplied by a fraction, the numerator of which is the principal amount of the Controlling interest to be purchased and the denominator of which is the outstanding principal balance of the Senior Loan. If Mezzanine Lender shall not agree to purchase such interest within five (5) Business Days of such offer, Senior Lender may sell such Controlling interest in the Senior Loan to the Borrower or any of the Borrower’s Affiliates within thirty (30) Business Days thereafter for a purchase price not less than the Borrower Purchase Price payable in immediately available funds. Any proposed


Transfer of an interest in the Senior Loan to Borrower or any Affiliate of Borrower which would, when aggregated with all previous Transfers of interests in the Senior Loan to Borrower and any Affiliate of Borrower, constitute a Controlling interest in the Senior Loan (a “Triggering Interest”) shall be deemed to be a Transfer of a Controlling interest in the Senior Loan for purposes of this Section 4(f). If Mezzanine Lender elects to purchase the Triggering Interest, Senior Lender will be obligated to sell sufficient additional interests in Senior Loan to Mezzanine Lender on the same terms as the Triggering Interest as provided in this Section 4(f) so that Mezzanine Lender will acquire an aggregate Controlling interest in the Senior Loan upon purchase of the Triggering Interest, after giving effect to any previous Transfer of an interest in the Senior Loan, including any transfer to Borrower or any Affiliate of Borrower.

Section 5. Foreclosure of Separate Collateral.

(a) Mezzanine Lender shall not 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 a Rating Agency Confirmation unless (i) the transfer of title to the Equity Collateral will be to a Qualified Transferee and (ii) the Premises will be managed by a Qualified Manager promptly after the transfer of title to the Equity Collateral. The transferee of the Equity Collateral in connection with any such foreclosure or other realization may replace any so called “springing member” or “independent director” relating to such Equity Collateral that is an individual with another Person satisfying the requirements of a “springing member” or “independent director” under the Senior Loan Documents. 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 (if the Certificates are outstanding and rated by at least one Rating Agency or, if no rated Certificates are then outstanding, reasonably acceptable to Senior Lender) within ten (10) Business Days of the transfer of title to the Equity Collateral. Mezzanine Lender shall provide notice of the transfer and an officer’s certificate from an officer of Mezzanine Lender certifying that all conditions set forth in this Section 5(a) have been satisfied to Senior Lender and, if the Certificates are outstanding and rated by at least one Rating Agency, the Rating Agencies upon consummation of any transfer of the Equity Collateral pursuant to this Section 5(a). Senior Lender may request reasonable evidence that the foregoing requirements have been satisfied. In the event of any transfer, if the Senior Loan Documents contain a guaranty, indemnity, pledge agreement or other similar agreement (an “Initial Obligor Agreement”), such transferee or an Affiliate thereof reasonably satisfactory to Senior Lender (a “Substitute Obligor”) shall: (A) execute and deliver to Senior Lender a guaranty, indemnity, pledge agreement or other agreement which provides for the obligations of such Substitute Obligor (each, a “Substitute Obligor Agreement”), in each case, in a form substantially similar to the obligations of the guarantor, indemnitor, pledgor or other obligor (the “Initial Obligor”) under the Initial Obligor Agreement that it is replacing, pursuant to which such Substitute Obligor shall undertake the obligations set forth therein which first arise after a transfer of the Equity Collateral, and (B) if there are Certificates then outstanding, deliver (or cause to be delivered) to Senior Lender and each Rating Agency, an opinion of counsel that the substitution of the Initial Obligor and the Obligor Agreement with a Substitute Obligor and a Substitute Obligor 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 Mezzanine Lender to exercise its rights and remedies, in law or in equity, or otherwise, in order to realize on (i) any Separate Collateral that is not Equity Collateral (including exercising any remedy pursuant to any guaranty given in connection with the Mezzanine Loan) or (ii) the Equity Collateral as provided in section 5(a) hereof.

(c) In the event Mezzanine Lender (or Mezzanine Lender’s designee that is a Qualified Transferee) or any purchaser at a UCC sale obtains title to the Separate Collateral, Senior Lender hereby acknowledges and agrees that provided the conditions in Section 5(a) hereof are met: (i) any transfer or assumption fee in the Senior Loan Documents 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 cause the acceleration of the Senior Loan, (ii) Senior Lender shall be deemed to have consented to (A) the transfer of such Equity Collateral to such Qualified Transferee and (B) the admission of such Qualified Transferee as a new member of each entity whose membership interests constitute a part of such Equity Collateral and (iii) Senior Lender shall also be deemed to have waived all defaults that are personal to Borrower and not susceptible of being cured by such Qualified Transferee (such as the bankruptcy of Borrower).

Section 6. Notice of Rating Confirmation. Mezzanine Lender promptly shall notify Senior Lender of any intended action relating to the Mezzanine Loan which it reasonably believes would require Rating Agency Confirmation pursuant to this Agreement and shall cooperate with Senior Lender in obtaining such confirmation. Senior Lender promptly shall notify 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 Mezzanine Lender in obtaining such confirmation. Mezzanine Lender shall pay all fees and expenses of the Rating Agencies in connection with any request for any Rating Agency Confirmation arising from any action or requested or attempted action by Mezzanine Lender pursuant to this Agreement.

Section 7. Modifications, Amendments, Etc.

(a) Senior Lender shall have the right without the consent of 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 or principal amount of the Senior Loan except for increases in principal to cover work-out costs (including closing costs in connection therewith) and Protective Advances made by Senior Lender, (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 other indebtedness of Borrower, (v) amend or modify the provisions of the Senior Loan Documents limiting transfers of, direct or indirect interests in Borrower or the Premises, (vi) modify or amend the terms and provisions of the Senior Loan Cash Management Agreement with respect to the manner, timing, priority or method of the application of payments under the Senior Loan Documents, (vii) cross default the


Senior Loan with any other indebtedness, (viii) 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), (ix)(A) 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 (B) impose any prepayment fee or premium or yield maintenance charge in connection with a prepayment of the Senior Loan when none is now required or after the current maturity date of the Senior Loan or increase the amount of any such prepayment fee, premium or yield maintenance charge, (x) modify any of the provisions of Article V or of the definition section of the Senior Mortgage relating to cash management and reserves and the amounts to be deposited into such accounts; (xi) spread the lien of the Senior Mortgage to encumber additional real property unless expressly provided for in the Mortgage Loan Documents; (xii) modify any default provisions or the definition of Event of Default or shorten any cure periods under the Senior Loan Documents; (xiii) amend or modify the Senior Loan Documents to decrease coverage or adversely modify the amounts, types or ratings of any provider of insurance required pursuant to the terms of the Senior Loan Documents in a manner which would increase the cost of such insurance (provided that the foregoing shall not preclude Senior Lender from requiring the compliance by Borrower of the requirements of the Senior Loan Documents including, without limitation, the provisions of Section 3.01(a)(x) of the Senior Mortgage); (xiv) release any guarantor under the guaranty of recourse obligations delivered with respect to the Senior Loan without obtaining a substantially equivalent substitute recourse guarantor; or (xv) modify any provision of the Senior Loan Documents with respect to the payment of proceeds of any casualty or condemnation of the Premises or any portion thereof; provided, however, in no event shall Senior Lender be obligated to obtain Mezzanine Lender’s 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 (A) under no conditions shall the matters addressed in clause (i) (with respect to increase in principal amount only), or clause (ix) be modified without the written consent of Mezzanine Lender and (B) if Mezzanine Lender has cured or is in the process of curing (within the time period permitted for cure in Section 11 and in all events, subject to the terms and conditions of Section 11) any Senior Loan Event of Default that 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, if 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 coverage of the Senior Loan payments from the Premises (as determined by Senior Lender in its reasonable discretion) and if Mezzanine Lender is diligently and expeditiously pursuing its remedies to acquire the Separate Collateral pursuant to the Mezzanine Loan Documents, Senior Lender will not, for a period not to exceed one hundred-twenty (120) days after the occurrence of such Senior Loan Event of Default, take any of the actions set forth in clauses (i) through (xv) above without the written consent of 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 Senior Lender under the Senior Loan Documents and in accordance with this Agreement as a result of (A) the making of any Protective Advances or other advances by 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) Mezzanine Lender shall have the right without the consent of Senior Lender in each instance to enter into any amendment, deferral, extension, modification, increase, renewal, replacement, consolidation, supplement or waiver (collectively, a “Mezzanine Loan Modification”) of the Mezzanine Loan or the Mezzanine Loan Documents provided that no such Mezzanine Loan Modification shall (i) increase the interest rate or principal amount of the Mezzanine Loan, (ii) increase in any other material respect any monetary obligations of Mezzanine Borrower under the Mezzanine Loan Documents, (iii) extend or shorten the scheduled maturity date of the Mezzanine Loan (except that Mezzanine Lender may permit Mezzanine Borrower to exercise any extension options in accordance with the terms and provisions of the Mezzanine Loan Documents), (iv) convert or exchange the Mezzanine Loan into or for any other indebtedness or subordinate any of the Mezzanine Loan to any indebtedness of Mezzanine Borrower, (v) 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 (vi) cross default the Mezzanine Loan with any indebtedness other than the Senior Loan. Notwithstanding anything to the contrary contained herein, if an Event of Default exists under the Mezzanine Loan Documents, Mezzanine Lender shall be permitted to modify or amend the Mezzanine Loan Documents in connection with a work-out or other surrender, compromise, release, renewal or modification of the Mezzanine Loan, provided that any modification or amendment of the type described in clause (i) (with respect to increases in the principal amount only), clause (ii), clause (iii) (with respect to shortening the maturity only), clause (iv) or clause (v) shall not be permitted without the prior written consent of Senior Lender unless, with respect to clause (i), clause (ii) or clause (v), any additional payments, monetary obligations or interest shall not be payable until the Senior Loan has been paid in full or are payable from amounts which are distributed to the Mezzanine Borrower by the Borrower and are no longer subject to the lien of the Senior Loan Documents. In addition and notwithstanding the foregoing provisions of this Section 7(b), the following shall not be deemed to contravene this Section 7(b): (w) the funding of any amounts by Mezzanine Lender under the Mezzanine Loan Documents as a result of (A) the making of any Protective Advances or other advances by Mezzanine Lender, or (B) interest accruals or accretions and any compounding thereof (including default interest), shall not be deemed to contravene this Section 7(b).

(c) Senior Lender shall deliver to Mezzanine Lender copies of any and all modifications, amendments, extensions, consolidations, spreaders, restatements, alterations, changes or revisions to any one or more of the Senior Loan Documents (including, without limitation, any side letters, waivers or consents entered into, executed or delivered by Senior Lender) within a reasonable time after any of such applicable instruments have been executed by Senior Lender.

(d) Mezzanine Lender shall deliver to Senior Lender copies of any and all modifications, amendments, extensions, consolidations, restatements, alterations, changes or revisions to any one or more of the Mezzanine Loan Documents (including, without limitation, any side letters, waivers or consents entered into, executed or delivered by Mezzanine Lender) within a reasonable time after any of such applicable instruments have been executed by Mezzanine Lender.

(e) Mezzanine Lender shall consent to the amendment or modification of Mezzanine Borrower’s organizational documents upon reasonable request by Senior Lender in


order to satisfy requests made by the Rating Agencies rating any Certificates, provided that such amendment or modification does not have an adverse effect on the Mezzanine Loan or the Separate Collateral, or the perfection, lien or priority of the Mezzanine Loan Documents, and the costs and expenses thereof are not payable by Mezzanine Lender and do not reduce the amounts of cash flow to Mezzanine Borrower from its interests in the Borrower.

Section 8. Subordination of Mezzanine Loan and Mezzanine Loan Documents.

(a) Mezzanine Lender hereby subordinates and makes junior the Mezzanine Loan, the Mezzanine Loan Documents and the liens and security interests created thereby, and all rights, remedies, terms and covenants contained therein to (i) the Senior Loan, (ii) the liens and security interests created by the Senior Loan Documents and (iii) all of the terms, covenants, conditions, rights and remedies contained in the Senior Loan Documents, and no amendments or modifications to the Senior Loan Documents or waivers of any provisions thereof shall affect the subordination thereof as set forth in this Section 8(a), provided that the Mezzanine Loan shall not be subordinated with respect to Senior Loan Modifications prohibited by the terms of Section 7(a) hereof. Mezzanine Lender hereby acknowledges and agrees that the Mezzanine Loan is not secured by a lien on the Premises or any of the other collateral securing the Senior Loan or any other assets of Borrower.

(b) Except with respect to the Separate Collateral, every document and instrument included within the Mezzanine Loan Documents shall be subject and subordinate to each and every document and instrument included within the Senior Loan Documents and all extensions, modifications, consolidations, supplements, amendments, replacements and restatements of and/or to the Senior Loan Documents, to the extent such extensions, modifications, consolidations, supplements, amendments, replacements and restatements are not prohibited by the terms hereof.

(c) This Agreement shall not be construed as subordinating and shall not subordinate or impair Mezzanine Lender’s first lien priority right, estate and interest in and to the Separate Collateral and its rights against the Mezzanine Borrower, and Senior Lender hereby acknowledges and agrees that Senior Lender does not have and shall not hereafter acquire, any lien on, or any other interest whatsoever in, the Separate Collateral, or any part thereof, and that the exercise of remedies and realization upon, and collection of payments from, the Separate Collateral by Mezzanine Lender or a Loan Pledgee in accordance with the terms and provisions of this Agreement shall not in and of itself constitute a default or an Event of Default under the Senior Loan Documents or a breach of this Agreement.

Section 9. Payment Subordination.

(a) Subject to Section 9(b) hereof, except (i) as otherwise expressly provided in this Agreement and (ii) in connection with the exercise by Mezzanine Lender of its rights and remedies with respect to the Separate Collateral in accordance with the terms of this Agreement, all of Mezzanine Lender’s rights to payment of the Mezzanine Loan and the obligations evidenced by the Mezzanine Loan Documents are, to the extent derived from or related to Borrower, the Premises or any other collateral for the Senior Loan (including whether in cash or other property and whether received directly, indirectly or by set-off, counterclaim or otherwise)


hereby subordinated to all of Senior Lender’s rights to payment by Borrower of the Senior Loan and the obligations secured by the Senior Loan Documents, and Mezzanine Lender shall not accept or receive payments (including, without limitation, whether in cash or other property and whether received directly, indirectly or by set-off, counterclaim or otherwise) from Borrower and/or from the Premises prior to the date that all obligations of Borrower to Senior Lender under the Senior Loan Documents are paid. If a Proceeding shall have occurred or a Continuing Senior Loan Event of Default shall exist, Senior Lender shall be entitled to receive payment and performance in full of all amounts due or to become due to Senior Lender before Mezzanine Lender is entitled to receive any payment on account of the Mezzanine Loan other than as permitted by Section 9(b) hereof. All payments or distributions upon or with respect to the Mezzanine Loan which are received by Mezzanine Lender contrary to the provisions of this Agreement shall be received and held in trust by Mezzanine Lender for the benefit of Senior Lender and shall be paid over to Senior Lender in the same form as so received (with any necessary endorsement) to be applied (in the case of cash) to, or held as collateral (in the case of non-cash property or securities) for, the payment or performance of the Senior Loan in accordance with the terms of the Senior Loan Documents. Nothing contained herein shall prohibit Mezzanine Lender from making Protective Advances (and adding the amount thereof to the principal balance of the Mezzanine Loan) notwithstanding the existence of a default under the Senior Loan at such time.

(b) Notwithstanding anything to the contrary contained in this Agreement, including, without limitation, Section 9(a) hereof, (i) provided that no Continuing Senior Loan Event of Default shall then exist, Mezzanine Lender may accept payments of any amounts (both current and delinquent) due and payable from time to time which Mezzanine Borrower is obligated to pay Mezzanine Lender in accordance with the terms and conditions of the Mezzanine Loan Documents and Mezzanine Lender shall have no obligation to pay over to Senior Lender any such amounts and (ii) whether or not a Continuing Senior Loan Event of Default then exists, Mezzanine Lender may accept and retain payments of any amounts due and payable from time to time to Mezzanine Lender in accordance with the terms and conditions of the Mezzanine Loan Documents as long as such payments made during the existence of a Continuing Senior Loan Event of Default are made from sources other than (x) current or future Rents or other proceeds from collateral securing the Senior Loan (in whole or in part) or (y) Borrower directly (it being understood and agreed that Mezzanine Lender may accept payments from any guarantor pursuant to the terms of any guaranty given in connection with the Mezzanine Loan and from additional capital contributions made from Mezzanine Borrower or Mezzanine Borrower’s direct or indirect constituent partners, members or other equity holders for such purpose), and Mezzanine Lender shall not have any obligation to pay over to Senior Lender any such amounts).

(c) Mezzanine Lender may take any Equity Collateral Enforcement Action which is not prohibited under Section 5 hereof; provided, however, that (i) Mezzanine Lender shall, prior to commencing any Equity Collateral Enforcement Action, give Senior Lender written notice of the default which would permit Mezzanine Lender to commence such Equity Collateral Enforcement Action and (ii) Mezzanine Lender shall provide Senior Lender with copies of any and all material notices, pleadings, agreements, motions and briefs served upon, delivered to or with any party to any Equity Collateral Enforcement Action and otherwise keep Senior Lender reasonably apprised as to the status of any Equity Collateral Enforcement Action.


(d) In the event of a casualty to the buildings or improvements constructed on any portion of the Premises or a condemnation or taking under a power of eminent domain of all or any portion of the Premises, Senior Lender shall have a first and prior interest in and to any payments, awards, proceeds, distributions, or consideration arising from any such event (the “Award”). If the amount of the Award is in excess of all amounts owed to Senior Lender under the Senior Loan Documents, however, and either the Senior Loan has been paid in full or Borrower is entitled to a remittance of same under the Senior Loan Documents other than to restore the Premises, such excess Award or portion to be so remitted to Borrower shall, to the extent not prohibited by the Senior Loan Documents, be paid to or at the direction of Mezzanine Lender, unless other Persons have claimed the right to such awards or proceeds, in which case Senior Lender shall only be required to provide notice to Mezzanine Lender of such excess Award and of any other claims thereto. In the event of any competing claims for any such excess Award, Senior Lender shall continue to hold such excess Award until Senior Lender receives an agreement signed by all Persons making a claim to the excess Award or a final order of a court of competent jurisdiction directing Senior Lender as to how and to which Person(s) the excess Award is to be distributed. Notwithstanding the foregoing, in the event of a casualty or condemnation, Senior Lender shall release the Award from any such event to Borrower if and to the extent required by the terms and conditions of the Senior Loan Documents in order to repair and restore the Premises in accordance with the terms and provisions of the Senior Loan Documents. Any portion of the Award made available to Borrower for the repair or restoration of the Premises shall not be subject to attachment by Mezzanine Lender but this sentence is not intended to otherwise affect the lien, if any, that Mezzanine Lender may have upon such proceeds or any Awards which under the Senior Loan Documents are made available to Borrower for distribution to its owner.


(a) Each of Mezzanine Lender and Senior Lender hereby waives any requirement for marshaling of assets thereby in connection with any foreclosure of any security interest or any other realization upon collateral in respect of the Senior Loan Documents or the Mezzanine Loan Documents, as applicable, or any exercise of any rights of set-off or otherwise. Each of Mezzanine Lender and Senior Lender assumes all responsibility for keeping itself informed as to the condition (financial or otherwise) of Borrower, Mezzanine Borrower, the condition of the Premises and all other collateral and other circumstances and, except for notices expressly required by this Agreement, neither Senior Lender nor Mezzanine Lender shall have any duty whatsoever to obtain, advise or deliver information or documents to the other relative to such condition, business, assets and/or operations. Mezzanine Lender agrees that Senior Lender owes no fiduciary duty to Mezzanine Lender in connection with the administration of the Senior Loan and the Senior Loan Documents and Mezzanine Lender agrees not to assert any such claim. Senior Lender agrees that Mezzanine Lender owes no fiduciary duty to Senior Lender in connection with the administration of the Mezzanine Loan and the Mezzanine Loan Documents and Senior Lender agrees not to assert any such claim.

(b) No payment or distribution to Senior Lender pursuant to the provisions of this Agreement and no Protective Advance by Mezzanine Lender shall entitle Mezzanine Lender to exercise any right of subrogation in respect thereof prior to the payment in full of the Senior Loan Liabilities, and Mezzanine Lender agrees that, except with respect to the enforcement of its


remedies under the Mezzanine Loan Documents permitted hereunder, prior to the satisfaction of all Senior Loan Liabilities it shall not acquire, by subrogation or otherwise, any lien, estate, right or other interest in any portion of the Premises or any other collateral now securing the Senior Loan or the proceeds therefrom that is or may be prior to, or of equal priority to, any of the Senior Loan Documents or the liens, rights, estates and interests created thereby.

(c) Subject to Section 30 hereof, the provisions of this Agreement shall be applicable both before and after the commencement, whether voluntary or involuntary, of any case, proceeding or other action against Borrower or any SPE Constituent Entity under any existing or future law of any jurisdiction relating to bankruptcy, insolvency, reorganization or relief of debtors (a “Proceeding”). For as long as the Senior Loan shall remain outstanding and Mezzanine Lender is not an equity owner of Borrower or Mezzanine Borrower, Mezzanine Lender shall not, and shall not solicit any Person to, and shall not direct or cause Mezzanine Borrower to direct or cause either Borrower or any entity which Controls Borrower (the “Borrower Group”) to: (i) commence any Proceeding against Borrower or any SPE Constituent Entity; (ii) institute proceedings to have Borrower or any SPE Constituent Entity adjudicated a bankrupt or insolvent; (iii) consent to, or acquiesce in, the institution of bankruptcy or insolvency proceedings against Borrower or any SPE Constituent Entity; (iv) file a petition or consent to the filing of a petition seeking reorganization, arrangement, adjustment, winding-up, dissolution, composition, liquidation or other relief by or on behalf of Borrower or any SPE Constituent Entity; (v) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or any SPE Constituent Entity, the Premises (or any portion thereof) or any other collateral securing the Senior Loan (or any portion thereof); (vi) make an assignment for the benefit of any creditor of Borrower or any SPE Constituent Entity; (vii) seek to consolidate the Premises or any other assets of Borrower or any SPE Constituent Entity with the assets of the Mezzanine Borrower or any member of the Borrower Group in any proceeding relating to bankruptcy, insolvency, reorganization or relief of debtors; or (viii) take any action in furtherance of any of the foregoing.

(d) If Mezzanine Lender is deemed to be a creditor of Borrower or any SPE Constituent Entity in any Proceeding (i) Mezzanine Lender hereby agrees that it shall not make any election, give any consent, commence any action or file any motion, claim, obligation, notice or application or take any other action in any Proceeding by or against Borrower or any other SPE Constituent Entity without the prior consent of Senior Lender, except to the extent necessary to preserve or realize upon Mezzanine Lender’s interest in the Equity Collateral; provided, however, that any such filing shall not be as a creditor of Borrower, (ii) Senior Lender may vote in any such Proceeding any and all claims of Mezzanine Lender against Borrower or any SPE Constituent Entity, and Mezzanine Lender hereby appoints Senior Lender as its agent, and grants to Senior Lender an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of exercising any and all rights and taking any and all actions available to Mezzanine Lender in connection with any case by or against Borrower or any other SPE Constituent Entity in any Proceeding, including without limitation, the right to file and/or prosecute any claims, to vote to accept or reject a plan, to make any election under Section 1111(b) of the Bankruptcy Code; provided, however, that with respect to any proposed plan of reorganization including Borrower and/or SPE Constituent Entity (including any consolidated entity that includes Borrower) in respect of which creditors are voting, Senior Lender may vote on behalf of Mezzanine Lender only if the proposed plan would result in Senior Lender being


“impaired” (as such term is defined in the United States Bankruptcy Code) and (iii) Mezzanine Lender shall not challenge the validity or amount of any claim against Borrower or any SPE Constituent Entity submitted in such Proceeding by Senior Lender in good faith or any valuations of the Premises or other Senior Loan collateral submitted by Senior Lender in good faith, in such Proceeding or take any other action in such Proceeding, which is adverse to Senior Lender’s enforcement of its claim or receipt of adequate protection (as that term is defined in the Bankruptcy Code).


(a) Prior to Senior Lender commencing any Enforcement Action under the Senior Loan Documents, Senior Lender shall provide written notice of the default which would permit Senior Lender to commence such Enforcement Action to Mezzanine Lender and any Loan Pledgee entitled to notice thereof pursuant to Section 15 hereof, whether or not Senior Lender is obligated to give notice thereof to Borrower (each, a “Senior Loan Default Notice”) and shall permit Mezzanine Lender an opportunity to cure such default in accordance with the provisions of this Section 11(a). If the default is a monetary default relating to a liquidated sum of money, Mezzanine Lender shall have until five (5) Business Days after the later of (i) the giving by Senior Lender of the Senior Loan Default Notice and (ii) the expiration of Borrower’s cure provision, if any, (a “Monetary Cure Period”) to cure such monetary default; provided, however, in the event it elects to cure any such monetary default, Mezzanine Lender shall (x) defend and hold harmless Senior Lender for all costs, expenses, losses, liabilities, obligations, damages, penalties, costs, and disbursements imposed on, incurred by or asserted against Senior Lender due to or arising from such Monetary Cure Period and (y) without duplication of the foregoing, reimburse Senior Lender for any interest charged by Senior Lender or any servicer of the Senior Loan on any required (pursuant to any applicable pooling and servicing or similar agreement) advances for monthly payments of principal and/or interest on the Senior Loan and/or on any Protective Advances. Mezzanine Lender shall not be required, in order to effect a cure hereunder (other than the cure by Mezzanine Lender of a default in the payment of the Senior Loan in full on the maturity date thereof or the reimbursement of interest on advances for monthly payment of principal and/or interest and/or on any Protective Advances, as aforesaid), to pay any interest calculated at the default rate under the Senior Loan Documents to the extent the same is in excess of the rate of interest which would have been payable by Borrower in the absence of such default (and irrespective of any cure of such default by Mezzanine Lender pursuant to the provisions of this Agreement), and no interest shall accrue at the default rate as against Mezzanine Lender for such period. Mezzanine Lender shall not have the right to cure as hereinabove set forth with respect to monthly scheduled debt service payments on the Senior Loan for a period of more than six (6) consecutive months unless Mezzanine Lender has commenced within such six (6) month period and is continuing to diligently pursue its rights against the Separate Collateral. If the default is of a non-monetary nature, Mezzanine Lender shall have until five (5) Business Days after the later of (i) the giving by Senior Lender of the Senior Loan Default Notice and (ii) the expiration of Borrower’s cure provision, if any, to cure such non-monetary default under the Senior Loan Documents; provided, however, if such non-monetary default is susceptible of cure but cannot reasonably be cured within such period and if curative action was promptly commenced and is being continuously and diligently pursued by Mezzanine Lender (or, with respect to a non-monetary default that is not susceptible of cure, if Mezzanine Lender shall be diligently and continuously pursuing the foreclosure of the Equity


Collateral), Mezzanine Lender shall be given an additional period of time as is reasonably necessary for Mezzanine Lender in the exercise of due diligence to cure such non-monetary default (or complete such foreclosure) for so long as (i) Mezzanine Lender makes or causes to be made timely payment of Borrower’s regularly scheduled monthly principal and/or interest payments under the Senior Loan and any other amounts due under the Senior Loan Documents (other than default rate interest if such sum is in excess of amounts required to be paid to any servicer or special servicer of the Loan as a result of the Continuing Senior Loan Event of Default), (ii) such additional period of time does not exceed sixty (60) days, unless such non-monetary default is of a nature that can not be cured within such sixty (60) days or requires foreclosure of the Equity Collateral in order to cure, in which case, Mezzanine Lender shall have such additional time as is reasonably necessary to foreclose on the Equity Collateral and cure such non-monetary default (or to complete such foreclosure, as the case may be), provided Mezzanine Lender is diligently pursuing such cure and/or foreclosure, as applicable, (iii) such default is not caused by a bankruptcy, insolvency or assignment for the benefit of creditors of Borrower and (iv) during such non-monetary cure period, there is no material impairment (as determined by Senior Lender in its reasonable discretion) to the value, use or operation of the Premises or Senior Lender’s lien thereon. Any additional cure period granted to Mezzanine Lender hereunder shall automatically terminate upon the bankruptcy (or similar insolvency) of Borrower. Senior Lender shall use reasonable efforts to deliver to Mezzanine Lender a copy of any notice of any Senior Loan Event of Default simultaneously with the delivery of such notice to Borrower, but Senior Lender shall have no liability to Mezzanine Lender for Senior Lender’s failure to do so (but such failure shall not negate or impair the cure rights of Mezzanine Lender under the other provisions of this Section 11).

(b) To the extent that any Qualified Transferee acquires the Equity Collateral in accordance with the provisions and conditions of this Agreement, such Qualified Transferee shall acquire the same subject to the Senior Loan and the terms, conditions and provisions of the Senior Loan Documents for the balance of the term thereof, which shall not be accelerated by Senior Lender solely due to such acquisition and shall remain in full force and effect; provided, however, that (i) such Qualified Transferee shall have caused the new Borrower to reaffirm in writing, subject to such exculpatory provisions as shall be set forth in the Senior Loan Documents, all of the terms, conditions and provisions of the Senior Loan Documents on Borrower’s part to be performed and (ii) all defaults under the Senior Loan which remain uncured as of the date of such acquisition have been cured by such Qualified Transferee or waived by Senior Lender except for defaults that are not susceptible of being cured by such Qualified Transferee; provided, further, that such defaults which are not susceptible of being cured do not materially impair the value, use or operation of the Premises. Notwithstanding any contrary or inconsistent provision of this Agreement, the Senior Loan Documents or the Mezzanine Loan Documents, no acquisition or other fee or similar charge shall be due in connection with such Qualified Transferee’s acquisition of any interest in Borrower or the Premises as the result of an Equity Collateral Enforcement Action or assignment in lieu of foreclosure or other negotiated settlement in lieu of any of the foregoing.

(c) So long as no Continuing Senior Loan Event of Default exists, all funds held and applied pursuant to the Senior Loan Cash Management Agreement, shall continue to be applied pursuant thereto and shall not be applied by Senior Lender to prepay outstanding principal balance of the Senior Loan.


Section 12. No Actions; Restrictive Provisions. Senior Lender consents to Mezzanine Lender’s right, pursuant to the Mezzanine Loan Documents, under certain circumstances, to cause the termination of the Manager and agrees that the exercise of such right shall not (in and of itself) permit Senior Lender to declare a Senior Loan Event of Default or take any Enforcement Action, provided a replacement property manager satisfying the requirements of this Section 12 is retained by Borrower promptly after such termination. In the event both Mezzanine Lender and Senior Lender shall have such rights at any time, and Senior Lender shall fail to exercise such rights, Mezzanine Lender may exercise such rights, provided such exercise may be superseded by any subsequent exercise of such rights by Senior Lender pursuant to the Senior Loan Documents provided such Manager is a Qualified Manager. Upon the occurrence of any event which would entitle Mezzanine Lender to cause the termination of the Manager pursuant to the Mezzanine Loan Documents, Mezzanine Lender shall have the right to select, or cause the selection, of a replacement property manager (including any asset manager) or leasing agent for the Premises, which replacement manager, asset manager and/or leasing agent shall either (a) be subject to Senior Lender’s reasonable approval and, if any Certificates are then outstanding, be subject to a Rating Agency Confirmation or (b) be a Qualified Manager. Notwithstanding anything in this Section 12 to the contrary, if a Continuing Senior Loan Event of Default then exists, Senior Lender shall have the sole right to select any replacement manager, asset manager and/or leasing agent, whether or not a new manager or agent was retained by Mezzanine Lender, provided that, with respect to any replacement manager, such replacement manager is a Qualified Manager.

Section 13. Right to Purchase Senior Loan.

(a) If (i) the Senior Loan has been accelerated or is unpaid at maturity, (ii) any Enforcement Action has been commenced and is continuing under the Senior Loan Documents, (iii) in the event that the Senior Loan or any interest therein is included as an asset in a pool of mortgage loans in connection with a Securitization and the Senior Loan is a “specially serviced mortgage loan” under the applicable pooling and servicing agreement, trust and servicing agreement or similar agreement as a result of an Event of Default under the Senior Loan, (iv) Borrower has become a debtor in any Proceeding, or (v) a Continuing Senior Loan Event of Default has been continuing for thirty (30) days or more without any Enforcement Action being commenced under the Senior Loan Documents (each of the foregoing, a “Purchase Option Event”), upon ten (10) Business Days prior written notice to Senior Lender (the “Purchase Option Notice”), Mezzanine Lender shall have the right to purchase, in whole but not in part, the Senior Loan for a price (the “Senior Loan Purchase Price”) equal to the outstanding principal balance thereof, together with (but without duplication) all accrued interest and other amounts due thereon (including, without limitation, any sums owed to any special servicer as a result of the Continuing Senior Loan Event of Default, advances and post-petition interest but excluding any (i) exit fees, (ii) prepayment or yield maintenance fees and (iii) late charges and default interest), any Protective Advances made by Senior Lender and any interest charged by Senior Lender on any advances for monthly payments of principal and/or interest on the Senior Loan (without duplication of any cure payments made by Mezzanine Lender) and/or on any Protective Advances, including all costs and expenses (including reasonable legal fees and expenses) actually incurred by Senior Lender in enforcing the terms of the Senior Loan Documents (the “Loan Purchase Price”). Concurrently with payment to Senior Lender of the Loan Purchase Price, Senior Lender shall deliver or cause to be delivered to Mezzanine Lender all Senior Loan


Documents held by or on behalf of Senior Lender and will execute in favor of Mezzanine Lender or its designee assignment documentation, in form and substance reasonably acceptable to Mezzanine Lender, at the sole cost and expense of Mezzanine Lender to assign the Senior Loan and its rights under the Senior Loan Documents (without recourse, representations or warranties, except for representations as to the outstanding balance of the Senior Loan, as to Senior Lender’s transfer of the Senior Loan to Mezzanine Lender being free and clear of any liens or encumbrances and as to Senior Lender owning the Senior Loan and validly transferring it to Mezzanine Lender). The right of Mezzanine Lender to purchase the Senior Loan shall survive any purchase of the Senior Loan by any other party; provided, however, that Mezzanine Lender may not deliver a Purchase Option Notice after the earlier of (i) the last scheduled date for the transfer of the Premises by foreclosure sale, sale by power of sale or delivery of a deed in lieu of foreclosure or (ii) if a Purchase Option Event ceases to exist. In the event of (i) a foreclosure sale of the Premises pursuant to the provisions of the Senior Mortgage, Mezzanine Lender may, to the extent permitted by applicable law, submit one or more bids at such sale and, if (ii) Senior Lender acquires the Premises by foreclosure or delivery of a deed-in-lieu thereof` or by sale by power of sale, Mezzanine Lender may, within ten (10) Business Days of such acquisition by Senior Lender, purchase the Premises from Senior Lender (or its nominee) for a sum equal to the Loan Purchase Price plus (x) any and all costs and expenses incurred by Senior Lender (or its nominee) during the time it owned the Premises, net of all cash receipts from the Premises actually received by Senior Lender during such period (from tenants, by apportionment with Mezzanine Lender or otherwise), and (y) any and all costs and expenses incurred by Senior Lender in connection with the transfer of the Premises to Mezzanine Lender, including, without limitation, reasonable attorneys fees and expenses, and any transfer or gains or similar taxes and fees paid in connection with such transfer. Senior Lender agrees, at no cost to Senior Lender, to cooperate with Mezzanine Lender to structure such purchase in a tax-efficient manner.

(b) Mezzanine Lender covenants not to enter into any agreement with Borrower or any Affiliate thereof to purchase all or any part of the Senior Loan pursuant to Section 13(a) hereof or in connection with any refinancing of the Senior Loan in any manner designed to avoid or circumvent the provisions of the Senior Loan Documents which require the payment of a prepayment fee or yield maintenance charge in connection with a prepayment of the Senior Loan by Borrower.

Section 14. Additional Understandings. For as long as the Mezzanine Loan remains outstanding:

(a) Notices of Transfer; Consent. Senior Lender promptly shall notify Mezzanine Lender if Borrower seeks or requests a release of the lien of the Senior Loan or seeks or requests Senior Lender’s consent to, or take any action in connection with or in furtherance of, a sale or transfer of all or any material portion of the Premises, the granting of a further mortgage, deed of trust or similar encumbrance against the Premises, a prepayment or refinancing of the Senior Loan or any offer to purchase the Senior Loan by Borrower or any Affiliate of Borrower. In the event of a request by Borrower for Senior Lender’s consent to either (i) the sale or transfer of all or any material portion of the Premises or (ii) the granting of a further mortgage, deed of trust or similar encumbrance against the Premises, Senior Lender shall, if Senior Lender has the right to consent, obtain the prior written consent of Mezzanine Lender prior to Senior Lender’s granting of its consent or agreement thereto.


(b) Annual Budget. Mezzanine Lender shall have the right to approve the annual operating budget for the Premises in accordance with the terms of the Mezzanine Loan Documents. Notwithstanding anything contained herein, in the Senior Loan Documents or the Mezzanine Loan Documents, Mezzanine Lender may require the submission of the annual budget to Mezzanine Lender for approval prior to any submission to Senior Lender. Upon Mezzanine Lender’s approval of any such budget, Mezzanine Lender shall (if Mezzanine Borrower has not done so) submit the approved budget to Senior Lender for its reasonable approval and, upon request, consult with Senior Lender with respect to the submitted budget. Mezzanine Lender shall consent to any changes in the budget reasonably requested by Senior Lender. In the event that the approval of Mezzanine Lender is not obtained on a timely basis, the then current existing operating budget shall remain in effect with an increase of any non-discretionary expense item to either (i) the prior budgeted expense amount with a five percent (5%) increase or (ii) the actual expense incurred as evidenced by the applicable bill or invoice.

(c) Consent Rights of Mezzanine Lender. If the Mezzanine Loan Documents contain any provision or requirement that Mezzanine Lender’s consent or approval be obtained for any act or determination by Borrower in connection with the leasing of the Premises or alterations to the Premises, to the extent that such consent or approval is also required by Senior Lender under the Senior Loan Documents, Mezzanine Lender hereby agrees that it shall advise Senior Lender of whether Mezzanine Lender objects to the requested consent or approval within the earlier to occur of (A) five (5) Business Days after its receipt of (i) a written request for a consent or approval from Mezzanine Borrower and (ii) delivery of all materials reasonably requested by Mezzanine Lender reasonably required to make a decision on such request and (B) two (2) Business Days prior to the date upon which Senior Lender is obligated to respond to Borrower with respect to such request for consent or approval. Provided that Senior Lender receives a notice of objection from Mezzanine Lender at least two (2) Business Days prior to the date, if any, upon which Senior Lender is obligated to respond to Borrower with respect to such request for consent or approval, Senior Lender shall consult with Mezzanine Lender with respect to any such consent or approval right of Mezzanine Lender but Mezzanine Lender shall have no right to approve or disapprove any decision of Senior Lender with respect to such request for consent or approval. Mezzanine Lender shall not unreasonably withhold, delay or condition its consent to such lease or alteration if Senior Lender approves such lease or alteration, provided such lease is on market terms (as reasonably determined by Senior Lender) and with respect to alterations, such alterations are necessary or desirable, as reasonably determined by Senior Lender, to maintain the Premises in good order and repair or are made in connection with or anticipation of leasing space at the Premises. Mezzanine Lender shall not be deemed to be unreasonable by withholding its consent to leases for strip clubs, tattoo parlors, adult book shops and adult novelty product stores and similar uses.

(d) Copies of Reports. Senior Lender shall, within five (5) Business Days of receipt thereof, deliver to Mezzanine Lender copies of all notices and reports which it receives from or gives to Borrower pursuant to the provisions of Section 2.09 of the Senior Mortgage. Upon written request from Mezzanine Lender, Senior Lender shall request from Borrower additional financial information contemplated under Section 2.09(f) of the Senior Mortgage and specified in Mezzanine Lender’s notice.


Section 15. Financing of Mezzanine Loan. Notwithstanding any other provision hereof, Senior Lender consents to Mezzanine Lender’s pledge (a “Pledge”) of the Mezzanine Loan and of the Separate Collateral to any entity which has extended a credit facility, including credit in the form of a repurchase agreement facility, to Mezzanine Lender that is a Qualified Transferee or a financial institution whose long-term unsecured debt is rated at least “A” (or the equivalent) or better by each Rating Agency (a “Loan Pledgee”), on the terms and conditions set forth in this Section 15, it being agreed that a financing provided by a Loan Pledgee to Mezzanine Lender (or an entity which owns, directly or indirectly, substantially all of the interests in Mezzanine Lender) that is secured by Mezzanine Lender’s interest in the Mezzanine Loan and that is structured as a repurchase arrangement, shall qualify as a Pledge hereunder, provided that (A) all applicable terms and conditions of this Section 15 are complied with and (b) such Loan Pledgee is a Qualified Transferee; provided that a Loan Pledgee which is not a Qualified Transferee may not take title to the Equity Collateral without a Rating Agency Confirmation. Upon written notice by Mezzanine Lender to Senior Lender that the Pledge has been effected and of the address for notice purposes of the Loan Pledgee, Senior Lender agrees to acknowledge receipt of such notice and thereafter agrees: (a) to give Loan Pledgee written notice of any default by Mezzanine Lender under this Agreement of which default Senior Lender has actual knowledge; (b) to allow Loan Pledgee a period of ten (10) days (in respect of a monetary default) and a period of thirty (30) days (in respect of a non-monetary default) to cure a default by Mezzanine Lender in respect of its obligations to Senior Lender hereunder, but Loan Pledgee shall not be obligated to cure any such default; (c) that no amendment, modification, waiver or termination of this Agreement shall be effective against Loan Pledgee without the written consent of Loan Pledgee, which consent shall not be unreasonably withheld; (d) that Senior Lender shall give to Loan Pledgee copies of any Senior Loan Default Notice simultaneously with the giving of same to Mezzanine Lender and accept any cure thereof by Loan Pledgee made in accordance with the provisions of Section 11 hereof as if such cure were made by Mezzanine Lender; (e) that Senior Lender shall deliver to Loan Pledgee such estoppel certificate(s) as Loan Pledgee shall reasonably request, provided that any such estoppel certificate(s) shall be in the form contemplated by Section 19 hereof or in such other form reasonably satisfactory to Senior Lender; and (f) that, upon written notice (a “Redirection Notice”) to Senior Lender by Loan Pledgee that Mezzanine Lender is in default, beyond applicable cure periods, under Mezzanine Lender’s obligations to Loan Pledgee pursuant to the applicable credit agreement between Mezzanine Lender and Loan Pledgee (which notice need not be joined in or confirmed by Mezzanine Lender), and until such Redirection Notice is withdrawn or rescinded by Loan Pledgee, Senior Lender shall remit to Loan Pledgee and not to Mezzanine Lender, any payments that Senior Lender would otherwise be obligated to pay to Mezzanine Lender from time to time pursuant to this Agreement, any Mezzanine Loan Document or any other agreement between Senior Lender and Mezzanine Lender that relates to the Senior Loan. Mezzanine Lender hereby unconditionally and absolutely releases Senior Lender from any liability to Mezzanine Lender on account of Senior Lender’s compliance with any Redirection Notice believed in good faith by Senior Lender to have been delivered by Loan Pledgee. Loan Pledgee shall be permitted to fully exercise its rights and remedies against Mezzanine Lender, and realize on any and all collateral granted by Mezzanine Lender to Loan Pledgee (and accept an assignment in lieu of foreclosure as to such collateral), in accordance with applicable law. In such event, Senior Lender shall recognize Loan Pledgee (and any transferee which is also a Qualified Transferee at any foreclosure or similar sale held by Loan


Pledgee or any transfer in lieu of such foreclosure), and its successors and assigns, as the successor to Mezzanine Lender’s rights, remedies and obligations under this Agreement and the Mezzanine Loan Documents and any such Loan Pledgee or Qualified Transferee shall assume in writing the obligations of Mezzanine Lender hereunder accruing from and after such Transfer and agrees to be bound by the terms and provisions hereof (it being agreed that, notwithstanding anything contained herein to the contrary, such Loan Pledgee shall not be required to so assume Mezzanine Lender’s obligations hereunder prior to such realization on such collateral). The rights of Loan Pledgee under this Section 15 shall remain effective unless and until Loan Pledgee shall have notified Senior Lender in writing that its interest in the Mezzanine Loan has terminated.

Section 16. Intentionally Omitted.

Section 17. Obligations Hereunder Not Affected.

(a) All rights, interests, agreements and obligations of Senior Lender and Mezzanine Lender under this Agreement shall remain in full force and effect irrespective of:

(i) any lack of validity or enforceability of the Senior Loan Documents or the Mezzanine Loan Documents or any other agreement or instrument relating thereto;

(ii) any taking, exchange, release or non-perfection of any other collateral, or any taking, release or amendment or waiver of or consent to or departure from any guaranty, for all or any portion of the Senior Loan or the Mezzanine Loan;

(iii) any manner of application of collateral, or proceeds thereof, to all or any portion of the Senior Loan or the Mezzanine Loan, or any manner of sale or other disposition of any collateral for all or any portion of the Senior Loan or the Mezzanine Loan or any other assets of Borrower or Mezzanine Borrower or any other Affiliates of Borrower;

(iv) any change, restructuring or termination of the corporate structure or existence of Borrower or Mezzanine Borrower or any other Affiliates of Borrower; or

(v) any other circumstance which might otherwise constitute a defense available to, or a discharge of, Borrower, Mezzanine Borrower or a subordinated creditor or a senior lender subject to the terms hereof.

(b) This Agreement shall continue to be effective or be reinstated, as the case may be, if at any time any payment of all or any portion of the Senior Loan is rescinded or must otherwise be returned by Senior Lender or Mezzanine Lender upon the insolvency, bankruptcy or reorganization of Borrower or otherwise, all as though such payment had not been made.

Section 18. Notices. All notices, demands, requests, consents, approvals or other communications required, permitted, or desired to be given hereunder shall be in writing sent by facsimile (with answer back acknowledged) or by registered or certified mail, postage prepaid, return receipt requested, or delivered by hand or reputable overnight courier addressed to the


party to be so notified at its address hereinafter set forth, or to such other address as such party may hereafter specify in accordance with the provisions of this Section 18. Any such notice, demand, request, consent, approval or other communication shall be deemed to have been received: (a) on the date of sending by facsimile if sent during business hours on a Business Day (otherwise on the next Business Day), (b) on the date of delivery by hand if delivered during business hours on a Business Day (otherwise on the next Business Day) and (c) on the next Business Day if sent by an overnight commercial courier, in each case addressed to the parties as follows:

To Senior Lender: Wachovia Bank, National Association Commercial Real Estate Services 8739 Research Drive URP 4, NC 1075 Charlotte, North Carolina 28262 Telecopy: (704) 374-6435

With a copy to: Proskauer Rose LLP 1585 Broadway New York, New York 10036 Attn: David J. Weinberger, Esq. Telecopy: (212) 969-2900

To Mezzanine Lender: Crescent Real Estate Capital, L.P. c/o Crescent Real Estate Equities, Ltd. 777 Main Street (Suite 2100) Fort Worth, Texas 76102 Attention: David M. Dean Telephone: (817) 321-1442 Facsimile No.: (817) 321-2002

With copies to: Crescent Real Estate Equities, Ltd. 777 Main Street (Suite 2100) Fort Worth, Texas 76102 Attention: John P. Albright Telephone: (817) 321-1490 Facsimile No.: (817) 321-2002

and

David L. Miller, P.C. Pillsbury Winthrop Shaw Pittman LLP 1650 Tysons Boulevard McLean, Virginia 22102-4859 Telephone: (703) 770-7925 Facsimile No.: (703) 770-7901


Section 19. Estoppel.

(a) Mezzanine Lender shall, within ten (10) days following a request from Senior Lender, provide Senior Lender with a written statement setting forth the then current outstanding principal balance of the Mezzanine Loan, the aggregate accrued and unpaid interest under the Mezzanine Loan, and stating whether to Mezzanine Lender’s knowledge any default or Event of Default exists under the Mezzanine Loan or under this Agreement. Mezzanine Lender shall not be required to give more than three (3) such written statements per year.

(b) Senior Lender shall, within ten (10) days following a request from Mezzanine Lender provide Mezzanine Lender with a written statement setting forth the then current outstanding principal balance of the Senior Loan, the aggregate accrued and unpaid interest under the Senior Loan, and stating whether to Senior Lender’s knowledge any default or Event of Default exists under the Senior Loan or under this Agreement. Senior Lender shall not be required to give more than three (3) such written statements per year.

Section 20. Further Assurances. So long as all or any portion of the Senior Loan and the Mezzanine Loan remains unpaid and the Senior Mortgage encumbers the Premises, Mezzanine Lender and Senior Lender will each execute, acknowledge and deliver in recordable form and upon demand of the other, any other instruments or agreements reasonably required in order to carry out the provisions of this Agreement or to effectuate the intent and purposes hereof.

Section 21. No Third Party Beneficiaries; No Modification. The parties hereto do not intend the benefits of this Agreement to inure to Borrower, Mezzanine Borrower or any other Person other than Loan Pledgees to the extent provided in Section 15. This Agreement may not be changed or terminated orally, but only by an agreement in writing signed by the party against whom enforcement of any change is sought. If any Certificates are outstanding, this Agreement shall not be amended unless any required Rating Agency Confirmation has been obtained with respect to such amendment.

Section 22. Successors and Assigns. This Agreement shall bind all successors and permitted assigns of Mezzanine Lender and Senior Lender and shall inure to the benefit of all successors and permitted assigns of Senior Lender and Mezzanine Lender.


Section 24. Legal Construction. In all respects, including, without limitation, matters of construction and performance of this Agreement and the obligations arising hereunder, this Agreement shall be governed by, and construed in accordance with, the internal laws of the State of New York applicable to agreements intended to be wholly performed within the State of New York.

Section 25. No Waiver; Remedies. No failure on the part of Senior Lender to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right hereunder preclude any other or further exercise


thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any remedies provided by law.


Section 27. Captions. The captions in this Agreement are inserted only as a matter of convenience and for reference, and are not and shall not be deemed to be a part hereof.

Section 28. Conflicts. In the event of any conflict, ambiguity or inconsistency between the terms and conditions of this Agreement and the terms and conditions of any of the Senior Loan Documents or the Mezzanine Loan Documents, the terms and conditions of this Agreement shall control.

Section 29. No Release. Nothing herein contained shall operate to release Borrower from (a) its obligation to keep and perform all of the terms, conditions, obligations, covenants and agreements contained in the Senior Loan Documents or (b) any liability of Borrower under the Senior Loan Documents or to release Mezzanine Borrower from (x) its obligation to keep and perform all of the terms, conditions, obligations, covenants and agreements contained in the Mezzanine Loan Documents or (y) any liability of Mezzanine Borrower under the Mezzanine Loan Documents.

Section 30. Continuing Agreement. This Agreement is a continuing agreement and shall remain in full force and effect until the earliest of (a) payment in full of the Senior Loan or the Mezzanine Loan, (b) subject to the provisions of Section 9(d) and Section 13, transfer of the Premises by foreclosure of the Senior Mortgage or the exercise of the power of sale contained therein or by deed-in-lieu of foreclosure, or (c) transfer of title to Mezzanine Lender of the Equity Collateral, at which point this Agreement will terminate; provided, however, that any rights or remedies of either party hereto arising out of any breach of any provision hereof occurring prior to such date of termination shall survive such termination and, provided that Mezzanine Lender has the right to purchase the Senior Loan pursuant to Section 13 hereof, Mezzanine Lender shall be entitled to purchase the Senior Loan pursuant to Section 13 hereof for the Senior Loan Purchase Price within five (5) Business Days after acquisition by Mezzanine Lender of the Equity Collateral by reason of an Equity Collateral Enforcement Action.

Section 31. Severability. In the event that any provision of this Agreement or the application hereof to any party hereto shall, to any extent, be invalid or unenforceable under any applicable statute, regulation, or rule of law, then such provision shall be deemed inoperative to the extent that it may conflict therewith and shall be deemed modified to conform to such statute, regulation or rule of law, and the remainder of this Agreement and the application of any such invalid or unenforceable provisions to parties, jurisdictions or circumstances other than to whom or to which it is held invalid or unenforceable, shall not be affected thereby nor shall same affect the validity or enforceability of any other provision of this Agreement.


Section 32. Expenses.

(a) To the extent not paid by Borrower or out of or from any collateral securing the Senior Loan which is realized by Senior Lender, Mezzanine Lender agrees upon demand to pay to Senior Lender the amount of any and all reasonable expenses, including, without limitation, the reasonable fees and expenses of its counsel and of any experts or agents, which Senior Lender may incur in connection with the (i) exercise or enforcement of any of the rights of Senior Lender against Mezzanine Lender hereunder to the extent that Senior Lender is the prevailing party in any dispute with respect thereto or (ii) failure by Mezzanine Lender to perform or observe any of the provisions hereof.

(b) To the extent not paid by Mezzanine Borrower out of or from any collateral securing the Mezzanine Loan which is realized by Mezzanine Lender, Senior Lender agrees upon demand to pay to Mezzanine Lender the amount of any and all reasonable expenses, including, without limitation, the reasonable fees and expenses of its counsel and of any experts or agents, which Mezzanine Lender may incur in connection with the (i) exercise or enforcement of any of the rights of Mezzanine Lender against Senior Lender hereunder to the extent that Mezzanine Lender is the prevailing party in any dispute with respect thereto or (ii) failure by Senior Lender to perform or observe any of the provisions hereof.

Section 33. Injunction. Senior Lender and Mezzanine Lender each acknowledge (and waive any defense based on a claim) that monetary damages are not an adequate remedy to redress a breach by the other hereunder and that a breach by either Senior Lender or Mezzanine Lender hereunder would cause irreparable harm to the other. Accordingly, Senior Lender and Mezzanine Lender agree that upon a breach of this Agreement by the other, the remedies of injunction, declaratory judgment and specific performance shall be available to such non-breaching party.

Section 34. Mutual Disclaimer.

(a) Each of Senior Lender and Mezzanine Lender are sophisticated lenders and/or investors in real estate and their respective decision to enter into the Senior Loan and the Mezzanine Loan is based upon their own independent expert evaluation of the terms, covenants, conditions and provisions of, respectively, the Senior Loan Documents and the Mezzanine Loan Documents and such other matters, materials and market conditions and criteria which each of Senior Lender and Mezzanine Lender deem relevant. Each of Senior Lender and Mezzanine Lender has not relied in entering into this Agreement, and respectively, the Senior Loan, the Senior Loan Documents, the Mezzanine Loan or the Mezzanine Loan Documents, upon any oral or written information, representation, warranty or covenant from the other, or any of the other’s representatives, employees, Affiliates or agents other than the representations and warranties of the other contained herein. Each of Senior Lender and Mezzanine Lender further acknowledges that no employee, agent or representative of the other has been authorized to make, and that each of Senior Lender and Mezzanine Lender have not relied upon, any statements, representations, warranties or covenants other than those specifically contained in this Agreement. Without limiting the foregoing, each of Senior Lender and Mezzanine Lender acknowledges that the other has made no representations or warranties as to the Senior Loan or the Mezzanine Loan or the Premises (including, without limitation, the cash flow of the Premises, the value, marketability,


condition or future performance thereof, the existence, status, adequacy or sufficiency of the leases, the tenancies or occupancies of the Premises, or the sufficiency of the cash flow of the Premises, to pay all amounts which may become due from time to time pursuant to the Senior Loan or the Mezzanine Loan).

(b) Each of Senior Lender and Mezzanine Lender acknowledges that the Senior Loan and the Mezzanine Loan are distinct, separate transactions and loans, separate and apart from each other.



IN WITNESS WHEREOF, Senior Lender and Mezzanine Lender have executed

this Agreement as of the date and year first set forth above.

SENIOR LENDER:


By: ______________________________ Name: Title:

MEZZANINE LENDER:

CRESCENT REAL ESTATE CAPITAL, L.P., a Delaware limited partnership

By: Crescent Real Estate Capital GP, LLC, a Delaware limited liability company, its general partner

By: Crescent Real Estate Equities, Ltd, a Delaware corporation, its manager

By: _________________________ Name: Title:

1 CURRENT 8188526v7

EXHIBIT A

[Attach Legal Description of Premises]

B-1 CURRENT 8188526v7

EXHIBIT B

Senior Loan Documents

1. Amended, Restated and Consolidated Promissory Note dated January 4, 2006, from Borrower to Senior Lender

2. Mortgage, Security Agreement, Assignment of Rents and Fixture Filing dated as of January 4, 2006, from Borrower to Senior Lender with respect to each Property

3. Assignment of Leases and Rents and Security Deposits dated as of January 4, 2006, from Borrower, as assignor to Senior Lender, as assignee, with respect to each Property

4. Guaranty dated as of January 4, 2006 5. UCC-1 Financing Statements dated January 4, 2006, from Borrower, as debtor to Senior

Lender, as secured party 6. Central Account Agreement dated as of January 4, 2006, among Borrower, Senior Lender

and Wachovia Bank, National Association, as bank 7. Rent Account Agreement dated as of January 4, 2006 8. Consent and Agreement dated as of January 4, 2006, by Manager 9. Payment Direction Letter dated as of January 4, 2006, from Borrower to Senior Lender 10. Post Closing Agreement dated as of January 4, 2006, from Borrower to Senior Lender

C-1 CURRENT 8188526v7

EXHIBIT C

Mezzanine Loan Documents 1. Promissory Note dated January 4, 2006, from Mezzanine Borrower to Mezzanine Lender 2. Loan and Security Agreement dated as of January 4, 2006, from Mezzanine Borrower to

Mezzanine Lender, as amended by the First Amendment 3. Guaranty dated as of January 4, 2006, 4. UCC-1 Financing Statement dated January 4, 2006, from Mezzanine Borrower, as debtor

to Mezzanine Lender, as secured party 5. Mezzanine Lockbox Agreement dated as of January 4, 2006, among Mezzanine

Borrower, Mezzanine Lender and Wachovia Bank, National Association, as bank 6. Consent and Agreement dated as of January 4, 2006, by Manager

CO-LENDER AGREEMENT

Dated as of July 1, 2008

by and among

[A HOLDER], (Initial Note A Holder);

[B HOLDER], (Initial Note B Holder)

and

[C HOLDER], (Initial Note C Holder)

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TABLE OF CONTENTS

Page

Section 1. Definitions.............................................................................................................................................1

Section 2. Servicing; Record Title......................................................................................................................18

Section 3. Payments Prior to a Sequential Pay Event ......................................................................................18

Section 4. Payments Following a Sequential Pay Event...................................................................................21

Section 5. Administration and Servicing of the Mortgage Loan. ....................................................................24

Section 6. Appointment of Operating Advisor. ................................................................................................37

Section 7. [Reserved]...........................................................................................................................................38

Section 8. Payment Procedure............................................................................................................................38

Section 9. Limitation on Liability of the Holders .............................................................................................39

Section 10. Bankruptcy.........................................................................................................................................39

Section 11. Cure Rights of the Junior Noteholders. ...........................................................................................40

Section 12. Purchase of the Note A By a Junior Noteholder .............................................................................42

Section 13. Representations of each Junior Noteholder.....................................................................................43

Section 14. Representations of the Initial Note A Holder ..................................................................................43

Section 15. Independent Analysis of the Junior Noteholders ............................................................................45

Section 16. No Creation of a Partnership or Exclusive Purchase Right...........................................................46

Section 17. Not a Security.....................................................................................................................................46

Section 18. Other Business Activities of the Holders..........................................................................................46

Section 19. Sale of the Notes. ................................................................................................................................46

Section 20. Assumption Agreement .....................................................................................................................50

Section 21. Replacement Notes.............................................................................................................................50

Section 22. No Pledge ............................................................................................................................................52

Section 23. Governing Law; Waiver of Jury Trial.............................................................................................52

Section 24. Submission To Jurisdiction; Waivers ..............................................................................................52

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Section 25. Modifications......................................................................................................................................52

Section 26. Successors and Assigns; Third Party Beneficiaries ........................................................................53

Section 27. Counterparts ......................................................................................................................................53

Section 28. Captions..............................................................................................................................................53

Section 29. Severability.........................................................................................................................................53

Section 30. Entire Agreement...............................................................................................................................53

Section 31. Withholding Taxes.............................................................................................................................53

Section 32. Custody of Mortgage Loan Documents ...........................................................................................53

Section 33. Cooperation by the Junior Noteholders...........................................................................................55

Section 34. Notices.................................................................................................................................................56

Section 35. Broker. ................................................................................................................................................56

EXHIBIT A Note Schedule

EXHIBIT B Notice Addresses

EXHIBIT C Mortgage Loan Documents

EXHIBIT D Permitted Fund Managers

EXHIBIT E Approved Appraisers

EXHIBIT F Initial Servicing Agreement

THIS CO-LENDER AGREEMENT (this “Agreement”), dated as of July 1, 2008 by and among [A HOLDER]., a _____________, having an address of _____________(together with its successors in interest, in its capacity as initial owner of Note A, the “Initial Note A Holder”), [B HOLDER], a _____________, having an address of _____________ (together with its successors in interest, in its capacity as initial owner of Note B, the “Initial Note B Holder”) and [C HOLDER] a _____________, having an address of _____________ (together with its successors in interest, in its capacity as initial owner of Note C, the “Initial Note C Holder”).

W I T N E S S E T H:

WHEREAS, pursuant to the Mortgage Loan Agreement (as defined herein) the Initial Note A Holder originated a mortgage loan (the “Mortgage Loan”) described on the schedule attached hereto as Exhibit A (the “Note Schedule”) to the mortgage loan borrower described on the Note Schedule (the “Mortgage Loan Borrower”), which Mortgage Loan is secured by a first mortgage or deed of trust lien (as amended, modified or supplemented, the “Mortgage”) on the parcel of real property located as described on the Note Schedule (the “Mortgaged Property”);

WHEREAS, the Mortgage Loan is evidenced by a Promissory Note A-1 (as such may have been and may hereafter be amended, restated, modified, supplemented and/or replaced, “Note A-1”), a Promissory Note A-2 (as such may have been and may hereafter be amended, restated, modified, supplemented and/or replaced, “Note A-2”) and a Promissory Note A-3 (as such may have been and may hereafter be amended, restated, modified, supplemented and/or replaced, “Note A-3”, and together with Note A-1 and Note A-2, “Note A”), a Promissory Note B-1 (as such may have been and may hereafter be amended, restated, modified, supplemented and/or replaced, “Note B-1” and Promissory Note B-2 (as such may have been and may hereafter be amended, restated, modified, supplemented and/or replaced, “Note B-2”, and together with Note B-1, “Note B”) and Promissory Note C (as such may have been and may hereafter be amended, restated, modified, supplemented and/or replaced, “Note C”).

WHEREAS, the Initial Note A Holder, the Initial Note B Holder and the Initial C Note Holder desire to enter into this Co-Lender Agreement to memorialize the terms under which the Notes are held.

NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties hereto mutually agree as follows:

Section 1. Definitions. References to a “Section” or the “recitals” are, unless otherwise specified, to a Section or the recitals of this Agreement. Whenever used in this Agreement, the following terms shall have the respective meanings set forth below unless the context clearly requires otherwise.

“Accepted Servicing Practices” shall mean either: (a) the standard of care such that the applicable Person will service and administer the Mortgage Loan (i) in the same manner in which, and with the same care, skill, prudence and diligence with which, such Person services

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and administers similar mortgage loans and mortgaged properties with similar borrowers and comparable REO Properties for other third party portfolios or administers mortgage loans and mortgaged properties for its own account or (ii) in the same manner in which, and with the same care, skill, prudence and diligence with which such Person services and administers comparable mortgage loans owned by such Person, but in either case (x) exercising reasonable business judgment and acting in accordance with applicable law, the terms of this Agreement, the Intercreditor Agreement, the Mortgage Loan Documents and the applicable Servicing Agreement, (y) with a view to the timely recovery of all payments of principal and interest under the Mortgage Loan or if the Mortgage Loan has become defaulted or the Mortgaged Property has become an REO Property, the maximization of recovery on the Mortgage Loan of principal and interest on a present value basis (it being understood that the interests of the Note B Holder are junior in priority to the interests of the Note A Holder, and the interests of the Note C Holder are junior in priority to the interests of the Note A Holder and the Note B Holder, in each case subject to the terms and conditions of this Agreement) and (z) without regard to (1) any relationship or ownership interest that such Person or any Affiliate thereof may have with the Mortgage Loan Borrower, any Affiliate thereof or any other Person, or any relationship or ownership interest that such Person or any Affiliate thereof may have with a Holder or any Affiliate thereof, (2) any ownership interest in Note A, Note B or Note C, (3) the right of such Person or any Affiliate thereof to receive compensation for its services or reimbursement of costs hereunder or with respect to any particular transaction, (4) the management or servicing of mortgage loan portfolios for other third parties, (5) the obligation of such Person to make any Servicing Advances and (6) any indemnity obligation or right on the part of such Person or any Affiliate thereof with respect to the Mortgage Loan; or (b) such higher standard as may be set forth in the applicable Servicing Agreement.

“Advance Interest Amount” shall mean the total amount of all interest paid or payable, as the context may require, to any Servicer or any other party under any Servicing Agreement with respect to a Servicing Advance made by such Servicer or other party.

“Affiliate” shall mean, with respect to any specified Person, any other Person Controlling or Controlled by or under common Control with such specified Person.

“Agreement” shall mean this Co-Lender Agreement, the exhibits and schedule hereto and all amendments hereof and supplements hereto.

“Applicable Interest Rate” shall mean the Note A Net Rate with respect to Note A, the Note B Net Rate with respect to Note B and the Note C Net Rate with respect to Note C.

“Appraisal” shall mean a third party, “as-is” MAI appraisal (in accordance with the Uniform Standards of Professional Appraisal Practice) from a nationally recognized appraisal firm listed on Exhibit E or otherwise selected by the Servicer with the consent of the Note A Holder and the Controlling Holder (which consent shall not be unreasonably withheld or delayed).

“Appraisal Reduction Amount” shall mean, solely for purposes of determining whether a Control Appraisal Period is in effect, with respect to the Mortgage Loan, an amount equal to the excess, if any, of (i)(A) the outstanding principal balance of the Mortgage Loan, plus

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(B) to the extent not previously advanced by the Holders or Servicer or any trustee, all accrued and unpaid interest on the Notes (including any unpaid interest on any principal or interest advances with respect to the Mortgage Loan) at per annum rates equal to the Notes’ respective Applicable Interest Rates (exclusive of any portion thereof that constitutes default interest in excess of any such Applicable Interest Rate), plus (C) all unreimbursed Servicing Advances and unpaid interest thereon, plus (D) all currently due and unpaid real estate taxes and assessments, insurance premiums and, if applicable, ground rents relating to the Mortgaged Property, less (E) any amounts held in escrow for the items described in clause (D) over (ii) an amount equal to ninety percent (90%) of the aggregate Collateral Value (net of any liens senior to the lien of the Mortgage) plus, without duplication, the amount of all escrows, reserves and other accounts and collateral held as security for the Mortgage Loan.

“Appraisal Reduction Event” shall mean the occurrence of (i) a monetary Event of Default with respect to the non-payment of scheduled principal and/or interest which is not cured within the available cure periods, (ii) a monetary Event of Default with respect to the non-payment of a second consecutive scheduled principal and/or interest payment (irrespective of whether such second Event of Default was cured), the immediately prior non-payment of which was cured by the Mortgage Loan Borrower, Mezzanine Lender or a Junior Noteholder, (iii) the acceleration of the Mortgage Loan, (iv) the Mortgage Loan becoming a Specially Serviced Mortgage Loan or (v) the effective date of any modification resulting in (x) the reduction of an Applicable Interest Rate, (y) any forgiveness of the principal balance of the Mortgage Loan or (z) or any postponement of the amortization term of the Mortgage Loan.

“Asset Status Report” shall mean any activity or remittance report with respect to the Mortgage Loan provided by the applicable Servicer, as further set forth in the applicable Servicing Agreement.

“Balloon Payment” shall mean a payment on a specified maturity date of the entire outstanding principal balance of the Mortgage Loan, together with all accrued but unpaid interest thereon and all other amounts due under this Agreement and the Mortgage Loan Documents, as further set forth in the Mortgage Loan Documents and the applicable Servicing Agreement.

“Bankruptcy Code” shall mean the United States Bankruptcy Code, as amended, and any successor statute or rule promulgated thereto.

“Business Day” shall mean any date other than (i) a Saturday or a Sunday, (ii) a day on which depository institutions or trust companies in the state of New York or in any of the states in which any accounts are located, are authorized or obligated by law, regulation or executive order to remain closed, or (iii) any other day specified in the applicable Servicing Agreement as not being a Business Day.

“CDO Asset Manager” with respect to any Securitization Vehicle that is a CDO, shall mean the entity that is responsible for managing or administering the applicable Note 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 such Note or any interest therein).

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“Closing Date” shall mean the date hereof.

“Code” shall mean the Internal Revenue Code of 1986, as amended.

“Collateral Value” shall mean, with respect to the Mortgaged Property, the value thereof as determined by the most recent Appraisal of the Mortgaged Property as provided in Section 5(g) (without reduction of any liens against the Mortgaged Property).

“Collection Account” shall mean the segregated custodial account or accounts established and maintained by the Servicer, in the name of and on behalf of certain specified parties, for the collection of payments on the Mortgage Loan (among other things), as further set forth in the Servicing Agreement.

“Condemnation Proceeds” shall have the meaning given such term in the Mortgage Loan Agreement.

“Continuing Senior Loan Event of Default” shall mean an Event of Default (i) which is a “Continuing Senior Loan Event of Default” under the Intercreditor Agreement and (ii) for which Note A Holder (or Servicer on its behalf) has provided notice of such Event of Default to the Junior Noteholders in accordance with Section 11 of this Agreement and (ii) for which the applicable cure period provided to Junior Noteholders in Section 11 of this Agreement has expired without such Event of Default having been cured.

“Control” shall mean the ownership, directly or indirectly, in the aggregate of more than fifty percent (50%) of the beneficial ownership interests of an entity or 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. “Controlled” and “Controlling” each has the meaning correlative thereto.

“Control Appraisal Period”: A “Control Appraisal Period” will exist with respect to a Junior Note if:

(A) with respect to Note B, if and for so long as: (i) the initial Note B Principal Balance minus the aggregate of (1) the sum (without duplication) of (x) any payments of principal (whether as principal prepayments or otherwise) allocated to, and received by (and not returned to the Note A Holder, the Servicer or the Mortgage Loan Borrower), the Note B Holder on Note B after the date of creation of Note B, (y) without duplication, any Appraisal Reduction Amount for the Mortgage Loan that is allocated to Note B and (z) without duplication, any losses realized with respect to the Mortgaged Property or the Mortgage Loan that are allocated to Note B plus (2) the amount of any Threshold Event Collateral posted by any of the Note B Holder in accordance with the terms of Section 5(h) hereof, is less than (ii) 25% of the excess of (I) the initial Note B Principal Balance over (II) any payments of principal (whether as principal prepayments or otherwise) allocated to, and received by (and not returned to the Note A Holder, the Servicer or the Mortgage Loan Borrower), the Note B Holder on Note B after the date of creation of Note B; and

(B) with respect to Note C, if and for so long as: (i) the initial Note C Principal Balance minus the aggregate of (1) the sum (without duplication) of (x) any payments of

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principal (whether as principal prepayments or otherwise) allocated to, and received by (and not returned to the Note A Holder, the Note B Holder, the Servicer or the Mortgage Loan Borrower), the Note C Holder on Note C after the date of creation of Note C, (y) without duplication, any Appraisal Reduction Amount for the Mortgage Loan that is allocated to Note C and (z) without duplication, any losses realized with respect to the Mortgaged Property or the Mortgage Loan that are allocated to Note C plus (2) the amount of any Threshold Event Collateral posted by any of the Note C Holder in accordance with the terms of Section 5(h) hereof, is less than (ii) 25% of the excess of (I) the initial Note C Principal Balance over (II) any payments of principal (whether as principal prepayments or otherwise) allocated to, and received by (and not returned to the Note A Holder, the Note B Holder, the Servicer or the Mortgage Loan Borrower), the Note C Holder on Note C after the date of creation of Note C.

“Controlling Holder” (i) the Note C Holder, unless a Control Appraisal Period with respect to Note C shall have occurred and be continuing; (ii) the Note B Holder, if a Control Appraisal Period with respect to Note C shall have occurred and be continuing, unless a Control Appraisal Period with respect to Note B shall have occurred and be continuing, and (iv) the Note A Holder if a Control Appraisal Period with respect to Note B and Note C shall have occurred and be continuing.

“Cure Event” shall have the meaning assigned to such term in Section 11(b).

“Cure Period” shall have the meaning assigned to such term in Section 11(a).

“Defaulted Mortgage Loan Purchase Price” shall mean the sum, without duplication, of (a) the aggregate Principal Balance of the Notes ranking senior in priority to the Note owned by the Holder intending to purchase such senior Notes, (b) accrued and unpaid interest thereon at such Notes’ respective Applicable Interest Rates, to, but not excluding, the date of purchase (and, additionally, if purchased during a Securitization Period, accrued interest up to the next Monthly Payment Date occurring on or after the date of purchase), (c) any and all other amounts due to the Holders of such senior Notes under the Mortgage Loan and all other costs, expenses and amounts due and payable to the Holders of such senior Notes under the Mortgage Loan Documents through and including the date that the Note(s) are purchased (including without limitation any advances and post-petition interest, but provided that in no event shall the purchase price include late charges or default interest nor shall the purchase price include any prepayment fee or yield protection payment or any “liquidation fee” or special servicing fee payable under the applicable pooling and servicing agreement) and (d) any unreimbursed Servicing Advances made with respect to the Mortgage Loan or Mortgaged Property, to the extent not included in clause (c) above, together with any unpaid Advance Interest Amounts accrued in respect of Servicing Advances made with respect to the Mortgage Loan or Mortgaged Property. If the Mortgaged Property securing the Mortgage Loan is converted into an REO Property, solely for purposes of determining the Defaulted Mortgage Loan Purchase Price, interest will continue to accrue on the Mortgage Loan as if such Mortgaged Property was not so converted.

“Depositor” means the depositor for a Securitization, if any.

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“Eligibility Requirements” shall mean, with respect to any Person, that such Person (i) has total assets (in name or under management) in excess of $600,000,000.00 and (except with respect to a pension advisory firm or similar fiduciary) capital/statutory surplus or shareholder’s equity of at least $250,000,000.00 and (ii) is regularly engaged in the business of making or owning (or, in the case of a fund advisor or manager or similar fiduciary, advising or managing with respect to) commercial real estate loans (including mezzanine loans with respect to commercial real estate) or operating commercial properties.

“Embargoed Person” shall have the meaning given such term in the Mortgage Loan Agreement.

“Event of Default” shall mean, with respect to the Mortgage Loan, an “Event of Default” as defined in the Mortgage Loan Agreement.

“Extension Fee” shall mean any fee payable by the Mortgage Loan Borrower to extend the maturity of the Mortgage Loan in accordance with the terms of the Mortgage Loan Agreement.

“Final Recovery Determination” shall mean a good faith determination by the Note A Holder (or any Servicer or trustee acting on behalf of the Note A Holder) in accordance with Accepted Servicing Practices, that there has been a recovery of all or substantially all insurance proceeds, condemnation proceeds, liquidation proceeds and other similar, unscheduled payments or recoveries (other than any scheduled Balloon Payment and ordinary debt service payments under the Mortgage Loan Documents) that will, in the aggregate, be ultimately recoverable from the Mortgaged Property or the REO Property. For the avoidance of doubt, there will not be a Final Recovery Determination in the event of a condemnation or casualty of the Mortgaged Property where substantial insurance proceeds or condemnation proceeds are applied towards restoration of the property.

“Fitch” shall mean Fitch, Inc., and its successors in interest.

“Grace Period” shall have the meaning assigned to such term in Section 11(a).

“Guarantor” shall have the meaning assigned to such term in the Mortgage Loan Agreement.

“Holder” shall mean the Note A Holder, the Note B Holder and/or the Note C Holder, as the context may require.

“Initial Note A Holder” shall have the meaning assigned to such term in the preamble to this Agreement.

“Initial Note B Holder” shall have the meaning assigned to such term in the preamble to this Agreement.

“Initial Note C Holder” shall have the meaning assigned to such term in the preamble to this Agreement.

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“Initial Note Holder” shall mean, collectively, the Initial Note A Holder, the Initial Note B Holder and the Initial Note C Holder.

“Initial Servicing Agreement” shall mean the Servicing Agreement, dated the date hereof, by and between the Initial Note A Holder and Bank of America, N.A., as servicer, in the form attached hereto as Exhibit F, as the same may be amended or supplemented from time to time in accordance with this Agreement.

“Insolvency Proceeding” shall mean any proceeding under the Bankruptcy Code or any other insolvency, liquidation, reorganization or other similar proceeding concerning the Mortgage Loan Borrower, any action for the dissolution of any party comprising the Mortgage Loan Borrower, any proceeding (judicial or otherwise) concerning the application of the assets of the Mortgage Loan Borrower, for the benefit of its creditors, the appointment of or any proceeding seeking the appointment of a trustee, receiver or other similar custodian for all or any substantial part of the assets of the Mortgage Loan Borrower or any other action concerning the adjustment of the debts of the Mortgage Loan Borrower or the cessation of business by the Mortgage Loan Borrower, except following a sale, transfer or other disposition of all or substantially all of the assets of the Mortgage Loan Borrower in a transaction permitted under the Mortgage Loan Documents; provided, however, that following any such permitted transaction affecting the title to the Mortgaged Property, the Mortgage Loan Borrower for purposes of this Agreement shall be defined to mean the successor owners of the Mortgaged Property; provided, further, however, that for the purposes of this definition, in the event that more than one entity comprises the Mortgage Loan Borrower, the term “Mortgage Loan Borrower” shall refer to any such entity.

“Insurance Proceeds” shall have the meaning given to such term in the Mortgage Loan Agreement.

“Intercreditor Agreement” shall mean the Intercreditor Agreement, dated the date hereof, by and between Mortgage Lender and Mezzanine Lender.

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

“Junior Note” shall mean Note B and/or Note C, as the context may require.

“Junior Noteholder” shall mean the Holder of a Junior Note.

“LIBOR” shall have the meaning assigned to such term in the Mortgage Loan Agreement. If on any date where LIBOR is required to be determined by the Note A Holder, but the Note A Holder is unable to determine LIBOR, the Note A Net Rate, the Note B Net Rate and the Note C Net Rate, as the case may be, will be based on an alternative index and spread chosen by the Note A Holder in accordance with the provisions of the Mortgage Loan Documents.

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“Liquidation Proceeds” shall mean all cash amounts (other than Insurance Proceeds and Condemnation Proceeds) received by the Holders or the Servicer in connection with the liquidation of the Mortgaged Property or other collateral securing the Mortgage Loan.

“Maturity Date” shall have the meaning assigned to such term in the Mortgage Loan Agreement.

“Mezzanine Lender” shall have the meaning assigned to such term in the Mortgage Loan Agreement.

“Monetary Default” shall have the meaning assigned to such term in Section 11(a).

“Monetary Default Notice” shall have the meaning assigned to such term in Section 11(a).

“Monthly Payment” shall mean, with respect to any Monthly Payment Date, the aggregate of the Scheduled Interest Payment and the Scheduled Principal Payment for such Monthly Payment Date.

“Monthly Payment Date” shall have the meaning assigned to the term “Payment Date” in the Mortgage Loan Agreement.

“Moody’s” shall mean Moody’s Investors Service, Inc., and its successors in interest.

“Mortgage” shall have the meaning assigned to such term in the recitals.

“Mortgage Lender” shall have the meaning assigned to such term in the Mortgage Loan Agreement.

“Mortgage Loan” shall have the meaning assigned to such term in the recitals.

“Mortgage Loan Agreement” shall mean the Loan Agreement, dated as of July 1, 2008 (as the same may be further amended, restated, renewed, extended, modified or supplemented from time to time as permitted hereby), between Mortgage Lender and the Mortgage Loan Borrower.

“Mortgage Loan Borrower” shall have the meaning assigned to such term in the recitals.

“Mortgage Loan Borrower Related Party” shall have the meaning assigned to such term in Section 18.

“Mortgage Loan Documents” shall mean, with respect to the Mortgage Loan, the documents listed on Exhibit C hereto.

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“Mortgaged Property” shall have the meaning assigned to such term in the recitals, and shall include all improvements thereon, all appurtenances thereto and all other real or personal property constituting collateral for the Mortgage Loan.

“Non-Exempt Person” shall mean any Person other than a Person who is either (i) a U.S. Person or (ii) has on file with the applicable Servicer for the relevant year such duly-executed form(s) or statement(s) which may, from time to time, be prescribed by law and which, pursuant to applicable provisions of (A) any income tax treaty between the United States and the country of residence of such Person, (B) the Code or (C) any applicable rules or regulations in effect under clauses (A) or (B) above, which permit the Servicer to make such payments free of any obligation or liability for withholding.

“Non-Monetary Default” shall have the meaning assigned to such term in Section 11(e).

“Non-Monetary Default Cure Period” shall have the meaning assigned to such term in Section 11(e).

“Non-Monetary Default Notice” shall have the meaning assigned to such term in Section 11(e).

“Note” and “Notes” shall have the meaning assigned such terms in the recitals.

“Note A” shall have the meaning assigned such term in the recitals.

“Note A-1” shall have the meaning assigned such term in the recitals.



“Note A Disposition” shall have the meaning assigned such term in Section 33.

“Note A Holder” shall mean the Initial Note A Holder or any subsequent holder of Note A.

“Note A Percentage Interest” shall mean a fraction, at any time of determination, expressed as a percentage, the numerator of which is the Note A Principal Balance and the denominator of which is the sum of the Note A Principal Balance, the Note B Principal Balance and the Note C Principal Balance.

“Note A Principal Balance” shall mean at any time of determination, $200,000,000 less the aggregate of all payments of principal thereon received by the Note A Holder or reductions in such amount pursuant to Sections 3 or 4 herein, as applicable, or any other reductions in such amount as a result of a Workout.

“Note A Net Rate” shall mean the Note A-1 Net Rate, the Note A-2 Net Rate and/or the Note A-3 Net Rate, as the context shall require.

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“Note A-1 Net Rate” shall mean the Note A-1 Net Rate set forth on the Note Schedule.



“Note B” shall have the meaning assigned such term in the recitals.

“Note B-1” shall have the meaning assigned such term in the recitals.

“Note B-2” shall have the meaning assigned such term in the recitals.

“Note B Holder” shall mean the Initial Note B Holder or any subsequent holder of Note B.

“Note B Net Rate” shall mean the Note B-1 Net Rate and/or the Note B-2 Net Rate, as the context shall require.

“Note B-1 Net Rate” shall mean the Note B-1 Net Rate set forth on the Note Schedule.

“Note B-2 Net Rate” shall mean the Note B-2 Net Rate set forth on the Note Schedule.

“Note B Percentage Interest” shall mean a fraction, at any time of determination, expressed as a percentage, the numerator of which is the Note B Principal Balance and the denominator of which is the sum of the Note A Principal Balance, the Note B Principal Balance and the Note C Principal Balance.

“Note B Principal Balance” shall mean at any time of determination, $85,000,000 less the aggregate of all payments of principal thereon received by the Note B Holder or reductions in such amount pursuant to Sections 3 or 4 herein, as applicable, or any other reductions in such amount as a result of a Workout.

“Note C” shall have the meaning assigned such term in the recitals.

“Note C Holder” shall mean the Initial Note C Holder or any subsequent holder of Note B.

“Note C Percentage Interest” shall mean a fraction, at any time of determination, expressed as a percentage, the numerator of which is the Note C Principal Balance and the denominator of which is the sum of the Note A Principal Balance, the Note B Principal Balance and the Note C Principal Balance.

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“Note C Principal Balance” shall mean at any time of determination, $40,000,000 less the aggregate of all payments of principal thereon received by the Note C Holder or reductions in such amount pursuant to Sections 3 or 4 herein, as applicable, or any other reductions in such amount as a result of a Workout.

“Note C Net Rate” shall mean the Note C Net Rate set forth on the Note Schedule.

“Note Schedule” shall mean the Schedule attached hereto as Exhibit A.

“Operating Advisor” shall mean the advisor appointed pursuant to Section 6(a).

“Percentage Interest” shall mean, with respect to the Note A Holder, the Note A Percentage Interest, with respect to the Note B Holder, the Note B Percentage Interest and with respect to the Note C Holder, the Note C Percentage Interest, as each may be adjusted from time to time in accordance with the definition of Note A Percentage Interest, Note B Percentage Interest or Note C Percentage Interest, as the case may be.

“Permitted Fund Manager” shall mean a Person that on the date of determination is (i) one of the entities listed on Exhibit D attached hereto and made a part hereof, 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 relating to the bankruptcy, insolvency, reorganization or relief of debtors .

“Person” shall mean 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 and any fiduciary acting in such capacity on behalf of any of the foregoing.

“Pooling and Servicing Agreement” shall mean, in the event that a Securitization occurs, a market standard pooling and servicing agreement in form and substance acceptable to the Note A Holder to be entered into in connection with the initial Securitization by and among (a) the Trustee, (b) each Person who serves as Servicer from and after the Securitization Date and (c) the related Depositor, and any other additional Persons that may be party to such Pooling and Servicing Agreement.

“Prepayment Premium” shall mean, with respect to the Mortgage Loan, any prepayment premium, spread maintenance premium, yield maintenance premium or similar fee required to be paid in connection with a prepayment of the Mortgage Loan pursuant to the Mortgage Loan Documents.

“Prime Rate” shall mean the daily prime loan rate as reported in The Wall Street Journal or if more than one rate is published, the highest of such rates.

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“Principal Balance” shall mean the Note A Principal Balance, the Note B Principal Balance or the Note C Principal Balance, as applicable.

“Purchase Option Notice” shall have the meaning assigned to such term in Section 12(a).

“Qualified Institutional Lender” shall mean:

(a) any Initial Note Holder; or

(b) any person that is one or more of the following:

(i) a real estate investment trust, bank, savings and loan association, investment bank, insurance company, trust company, commercial credit corporation, pension plan, pension fund, pension fund advisory firm, mutual fund, governmental entity or plan, in any case, that satisfies the Eligibility Requirements, or

(ii) an investment company, money management firm or a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act of 1933, as amended, which satisfies the Eligibility Requirements, or

(iii) an institution substantially similar to any of the entities described in clauses (b)(i) or (b)(ii) above that satisfies the Eligibility Requirements, or

(iv) any entity Controlling or Controlled by or under common Control with any of the entities described clauses (a), (b)(i), (b)(ii) or (b)(iii) above, or

(v) a Qualified Trustee (or in the case of or in the case of an issuer of collateralized debt obligations (“CDO”s), a single purpose bankruptcy-remote entity that contemporaneously pledges or assigns all or a portion of its interest in a Note to a Qualified Trustee in connection with (A) a securitization of, (B) the creation of CDOs secured by, (C) a REMIC or (D) a financing through an “owner trust” of, a Note 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 are initially rated at least investment grade by each of the Rating Agencies that assigned a rating to one or more classes of securities issued in connection with a Securitization (other than Fitch) 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 Note (or any interest therein) to such Securitization Vehicle (except that if one or more classes of securities issued in connection with a Securitization is rated by Moody’s, the transferee may not rely on this clause (1) with respect to Moody’s); (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 Note or any interest therein in accordance with servicing arrangements for the assets held by

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the Securitization Vehicle that require such Approved Servicer to 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 that is a Qualified Institutional Lender) are each a Qualified Institutional Lender under clauses (a), (b)(i), (b)(ii), (b)(iii) or (b)(iv) of this definition, or

(vi) an investment fund, limited liability company, limited partnership or general partnership in which a Permitted Fund Manager acts as the general partner, managing member, or the fund manager responsible for the day to day management and operation of such investment vehicle and provided that at least fifty percent (50%) of the equity interests in such investment vehicle are owned, directly or indirectly, by one or more of the following: a Qualified Institutional Lender, an institutional “accredited investor” within the meaning of Regulation D promulgated under the Securities Act of 1933, as amended, and/or a “qualified institutional buyer” or both within the meaning of Rule 144A promulgated under the Securities Exchange Act of 1934, as amended, provided such institutional “accredited investors” or “qualified institutional buyers” that are used to satisfy the 50% test set forth above in this clause (b)(vi) satisfy the financial tests in clause (i) of the definition of Eligibility Requirements or are otherwise Qualified Institutional Lenders under clauses (a), (b)(i), (b)(ii), (b)(iii), (b)(iv) or (b)(v) of this definition, or

(vii) a Person that is otherwise a Qualified Institutional Lender but that is acting in an agency capacity for a syndicate of lenders where at least 51% of the lenders in such syndicate are otherwise Qualified Institutional Lenders under clauses (a), (b)(i), (b)(ii), (b)(iii), (b)(iv), (b)(v) and (b)(vi) above; or

(viii) the bondholders (as a collective whole) (or their nominee, collateral agent or security trustee) under, or the trustee, administrator or receiver (or their respective nominees, collateral agents or collateral trustees) of, a mortgage pool securing covered mortgage bonds issued by a German mortgage bank, or by any other Person meeting the Eligibility Requirements and permitted to issue covered mortgage bonds, under German Pfandbrief legislation, as such legislation may be amended and in effect from time to time, or any substitute or successor legislation; or

(ix) any other Person that has been approved as a Qualified Institutional Lender by the Rating Agencies or by Note A Holder prior to a Securitization.

For purposes of this definition only, “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,

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whether through the ability to exercise voting power, by contract or otherwise (“Controlled” and “Controlling” have meanings correlative thereto).

“Qualified Trustee” shall mean a corporation, national bank, national banking association or a trust company that: (a) is organized and doing business under the laws of any state or the United States of America; (b) is authorized under such laws to exercise corporate trust powers and to accept the trust conferred; (c) is subject to supervision or examination by federal or state authority; and (d) either (i) has a combined capital and surplus of at least $100,000,000, (ii) is an institution insured by the Federal Deposit Insurance Corporation or (iii) has a long-term senior unsecured debt rating in one of the then top two (or subject to the reasonable approval of the Note A Holder, top three) rating categories of each of the Rating Agencies.

“Rating Agencies” shall mean S&P, Moody’s and Fitch or, if any of such entities

shall for any reason no longer perform the functions of a securities rating agency, any other nationally recognized statistical rating agency designated by the Note A Holder; provided, however, that at any time during a Securitization Period, “Rating Agencies” or “Rating Agency” shall mean the rating agencies that from time to time rate the securities issued in connection with such Securitization at the request of the related Depositor.

“Rating Agency Confirmation” shall mean, during a Securitization Period, a written confirmation (or waiver of formal review) from each Rating Agency that its credit rating of each class of the securities issued under the Pooling and Servicing Agreement to which it has assigned a rating, immediately prior to the occurrence of the event with respect to which such Rating Agency Confirmation is sought, will not be qualified, downgraded or withdrawn as a result of the occurrence of such event, which confirmation may be granted or withheld in such Rating Agency’s sole and absolute discretion. During a Securitization Period, where a Rating Agency Confirmation is received with respect to a Transfer or other matter, such Rating Agency Confirmation shall also be deemed to be unconditional approval by the Note A Holder of such Transfer or other matter for all purposes of this Agreement.

“REMIC” shall have the meaning assigned to such term in Section 5(i).

“REMIC Provisions” shall mean provisions of the federal income tax law relating to real estate mortgage investment conduits, which appear at Sections 860A through 860G of subchapter M of Chapter 1 of the Code, and related provisions, and regulations (including any applicable proposed regulations) and rulings promulgated thereunder, as the foregoing may be in effect from time to time.

“REO Property” shall mean the Mortgaged Property acquired by the applicable Servicer on behalf of the Holders through foreclosure or by deed in lieu of foreclosure or otherwise in accordance with applicable law in connection with the default or imminent default of the Mortgage Loan.

“Replacement Note” and “Replacement Notes” shall have the meaning assigned to such term in Section 21.

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“Required Special Servicer Rating” shall mean (i) a rating of “CSS3” in the case of Fitch, (ii) being 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” shall mean Standard & Poor’s Ratings Services, a Division of The McGraw-Hill Companies, Inc., and its successors in interest.

“Scheduled Interest Payment” shall mean, with respect to any date of determination, the scheduled monthly payment of interest on the Mortgage Loan pursuant to the Mortgage Loan Agreement.

“Scheduled Principal Payment” shall mean, with respect to any date of determination, the scheduled payment of principal of the Mortgage Loan pursuant to the Mortgage Loan Agreement.

“Securitization” shall mean the transfer of Note A (or any portion thereof) to a Securitization Trust in connection with the inclusion of Note A (or any portion thereof) as part of a securitization of one or more mortgage loans involving the issuance and sale of commercial mortgage pass-through certificates as to which at least one class of such certificates is rated investment grade by at least one of the Rating Agencies.

“Securitization Date” shall mean the effective date on which a Securitization is consummated.

“Securitization Period” shall mean the period from the Securitization Date until the earlier of (i) none of the classes of certificates issued pursuant to such Securitization is rated investment grade by at least one Rating Agency and (ii) Note A (or any portion thereof) is no longer an asset of a Securitization Trust.

“Securitization Trust” shall mean the trust formed pursuant to a Securitization pursuant to which the Note A is held.

“Sequential Pay Event” shall mean (i)(a) a Continuing Senior Loan Event of Default, with respect to an obligation of the Mortgage Loan Borrower to pay money due under the Mortgage Loan, or (b) any other Continuing Senior Loan Event of Default which causes the Mortgage Loan to become a Specially Serviced Mortgage Loan; provided, however, that unless the Servicer under the Servicing Agreement has notice or knowledge of any such triggering event referenced in this clause (i) at least three (3) Business Days prior to the applicable distribution date, distributions will not be made sequentially in accordance with Section 4 until after the expiration of such three (3) Business Day period; or (ii) any Final Recovery Determination. A Sequential Pay Event shall no longer exist to the extent it has been waived in writing or cured (including any cure made by a Junior Noteholder pursuant to Section 11 or by Mezzanine Lender pursuant to the Intercreditor Agreement).

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“Servicer” shall mean the servicer under the Servicing Agreement which shall at all times be an entity appearing on the applicable “approved servicers” list of S&P or be rated at least CMS3, CSS3 or CPS3, as applicable, by Fitch; provided that, if there is more than one servicer under the Servicing Agreement, then “Servicer” shall mean, with respect to any particular servicing or other relevant action to be taken in respect of the Mortgage Loan or any REO Property or any particular right exercisable by a servicer, the particular servicer responsible for performing such servicing or other relevant action or entitled to exercise such right pursuant to the Servicing Agreement; provided that in the event that no Servicing Agreement is in place for any reason whatsoever, the “Servicer” shall mean the Note A Holder.

“Servicing Advances” shall mean any advance made by a Holder (or the Servicer on its behalf) in respect of protective or other property advances on behalf of the Mortgage Loan Borrower or any expenses incurred to protect, preserve and enforce the security of the Mortgage Loan or to pay taxes and assessments or insurance premiums with respect to the Mortgaged Property (it being understood that Note A Holder shall not have any obligation to make any Servicing Advances).

“Servicing Agreement” shall mean the Initial Servicing Agreement or, if a replacement servicing agreement has been entered into pursuant to Section 5, such replacement servicing agreement; provided that in the event of a Securitization, “Servicing Agreement” shall mean the Pooling and Servicing Agreement with respect to the initial Securitization, unless a replacement servicing agreement in respect of the Pooling and Servicing Agreement has been entered into pursuant to Section 5.

“Specially Serviced Mortgage Loan” shall, except as otherwise provided in the Servicing Agreement, mean that any one of the following has occurred with respect to the Mortgage Loan:

(i) the payment of principal and interest due on the Maturity Date is not made in full on the Maturity Date (as the same has been extended pursuant to the terms of the Mortgage Loan documents, if applicable), if the Maturity Date was not extended within 60 days of such non-payment;

(ii) Mortgage Loan Borrower has failed to make any two consecutive scheduled payments which remain delinquent;

(iii) Mortgage Loan Borrower has entered into or consented to an Insolvency Proceeding, or Mortgage Loan Borrower has become the subject of a decree or order for such proceeding that will have remained in full force undischarged or unstayed for a period of sixty (60) days;

(iv) Servicer shall have received notice of the foreclosure or proposed foreclosure of any other lien on the Mortgaged Property;

(v) to the knowledge of Servicer, a material default under the applicable Mortgage Loan Documents has occurred, and (consistent with Accepted Servicing Standards after a non-binding consultation with the Controlling Holder and the Operating Advisor) is not likely to be cured by Mortgage Loan Borrower within sixty (60) days (or

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such longer period as may be provided in the Mortgage Loan Documents for the cure thereof by the Mortgage Loan Borrower) of becoming a material default;

(vi) Mortgage Loan Borrower admits in writing its inability to pay its debts generally as they become due, makes an assignment for the benefit of its creditors or voluntarily suspends payment of its obligations; or

(vii) Servicer receives notice that Mortgage Loan Borrower intends to violate or has violated any “due-on-sale” or “due-on-encumbrance” clause in the Mortgage Loan Documents;

provided, however, that the Mortgage Loan will cease to be a Specially Serviced Mortgage Loan:

(a) with respect to clauses (i) or (ii) above, when the Mortgage Loan becomes a performing Mortgage Loan for at least thirty (30) consecutive days and no monetary default or material non-monetary event of default has occurred within such thirty (30) day period, in accordance with its original terms and as modified in accordance with this Agreement; provided, that with respect to any monies received by the Servicer on the Monthly Payment Date which results in the Mortgage Loan becoming a performing Mortgage Loan, the Servicer shall hold, in an interest-bearing escrow account established at the direction of the Controlling Holder and reasonably acceptable to the Servicer, any amounts that would otherwise have been paid to the Junior Noteholders pursuant to Section 3 herein until the following Remittance Date, at which time, if the Mortgage Loan remains a performing Mortgage Loan, the monies received by the Servicer on the immediately preceding Monthly Payment Date, together with the withheld funds, shall be applied in accordance with Section 3 herein, and if a Sequential Pay Event is continuing, such monies and withheld funds shall be applied in accordance with Section 4 herein; or

(b) with respect to clauses (iii), (iv), (v), (vi) or (vii) above, when such event specified has been remedied, cured or otherwise resolved.

“Taxes” shall mean any income or other taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature, now or hereafter imposed by any jurisdiction or by any department, agency, state or other political subdivision thereof or therein.

“Transfer” shall have the meaning assigned such term in Section 19.

“Trustee” shall mean the trustee for any Securitization.

“U.S. Person” shall mean a citizen or resident of the United States, a corporation or partnership (except to the extent provided in applicable Treasury Regulations) created or organized in or under the laws of the United States, any state thereof or the District of Columbia, including any entity treated as a corporation or partnership for federal income tax purposes, or an estate whose income is subject to United States federal income tax regardless of its source, or a trust if a court within the United States is able to exercise primary supervision over the administration of such trust, and one or more such U.S. Persons have the authority to control all substantial decisions of such trust (or, to the extent provided in applicable Treasury Regulations, a trust in existence on August 20, 1996 which has a valid election in effect to be treated as a U.S. Person).

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“Workout” shall mean any written modification, waiver, amendment, restructuring or workout of the Mortgage Loan or the Notes entered into with the Mortgage Loan Borrower in accordance with this Agreement in connection with any actual or reasonably foreseeable Event of Default that would cause the Mortgage Loan to be a Specially Serviced Loan.

Section 2. Servicing; Record Title.

(a) The Holders acknowledge and agree that, subject to other provisions in this Agreement (including Section 5 below), the Mortgage Loan or, if expressly covered by the Servicing Agreement, any REO Property shall be serviced and administered, from and after the date hereof, pursuant to the Servicing Agreement; provided that, during a Securitization Period, the Mortgage Loan or any such REO Property shall be serviced and administered pursuant to the Pooling and Servicing Agreement for the applicable Securitization.

(b) The Note A Holder or its designee shall at all times jointly be the mortgagee and secured party of record for the benefit of and on behalf of the Holders. Upon and as a condition to the transfer of Note A pursuant to Section 19 hereunder, the Note A Holder shall execute and deliver any and all assignments and other transfer documents (when appropriate, in form suitable for recordation or filing, as applicable, in the appropriate public office for real property records or UCC financing statements) that are necessary to transfer the Mortgage Loan Documents (exclusive of any Junior Note and any other document that runs directly to a Junior Noteholder) to a reputable custodian as nominee on behalf of the Holders and such custodian shall: (i) complete any and all assignments and other transfer documents delivered to it by the Note A Holder in such manner as to reflect that it is the mortgagee/beneficiary under the Mortgage Loan Documents (exclusive of any Junior Note and any other document that runs directly to a Junior Noteholder) for the benefit of and on behalf of the Holders; and (ii) record or file, as applicable, any such assignments and/or transfer documents that are appropriate to be recorded or filed, as the case may be, in the appropriate public office for such purposes.

Section 3. Payments Prior to a Sequential Pay Event.

Note C and the right of the Note C Holder to receive payments of interest, principal and other amounts with respect to such Note C shall at all times be junior, subject and subordinate to Note A and Note B and the right of the Note A Holder and Note B Holder to receive payments of interest, principal (whether in connection with a prepayment or otherwise) and other amounts with respect to Note A and Note B as set forth herein. Note B and the right of the Note B Holder to receive payments of interest, principal and other amounts with respect to such Note B shall at all times be junior, subject and subordinate to Note A and the right of the Note A Holder to receive payments of interest, principal (whether in connection with a prepayment or otherwise) and other amounts with respect to Note A as set forth herein. If no Sequential Pay Event shall have occurred and be continuing, all amounts tendered by the Mortgage Loan Borrower or otherwise available for payment on or with respect to or in connection with the Mortgage Loan or the Mortgaged Property or amounts realized as proceeds thereof, whether received in the form of Monthly Payments, the Balloon Payment, Liquidation Proceeds, proceeds under any guaranty, letter of credit or other collateral or instrument securing the Mortgage Loan, Condemnation Proceeds, or Insurance Proceeds (other than proceeds, awards

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or settlements to be applied to the restoration or repair of the Mortgaged Property or released to the Mortgage Loan Borrower in accordance with the terms of the Mortgage Loan Documents), but excluding (x) all amounts for required reserves or escrows required by the Mortgage Loan Documents (to the extent in accordance with the terms of the Mortgage Loan Documents) to continue to be held as reserves or escrows, and (y) all amounts that are then due, payable or reimbursable to any Servicer (or, during a Securitization Period, the related Trustee or Depositor) with respect to the Mortgage Loan pursuant to the Servicing Agreement including without limitation servicing compensation, special servicing compensation, trustee fees, reimbursement of costs and expenses (including, without limitation, any Servicing Advances, together with interest thereon), shall be applied (subject to Section 5(i)) in the following order of priority without duplication (and payments shall be made at such times as are set forth in the Servicing Agreement):

(a) first, to the Note A Holder in an amount equal to the accrued and unpaid interest on the Note A Principal Balance at the Note A Net Rate;

(b) second, to the Note A Holder in an amount equal to the Note A Percentage Interest of principal payments received, if any, with respect to the Mortgage Loan, until the Note A Principal Balance has been reduced to zero;

(c) third, if, as a result of a Workout, the Note A Principal Balance has been reduced, to the Note A Holder up to the unreimbursed portion of the reduction, if any, of the Note A Principal Balance as a result of such Workout, together with accrued and unpaid interest thereon at the Note A Net Rate;

(d) fourth, to the Note A Holder up to the amount of any unreimbursed costs and expenses paid by the Note A Holder with respect to the Mortgage Loan or any REO Property pursuant to this Agreement or the Mortgage Loan Documents (excluding any costs and expenses incurred in connection with a Securitization), together with accrued and unpaid interest thereon at the Note A Net Rate;

(e) fifth, to the Note B Holder, up to the amount of any unreimbursed costs and expenses paid by the Note B Holder, with respect to the Mortgage Loan or any REO Property pursuant to this Agreement or the Mortgage Loan Documents, together with accrued and unpaid interest thereon at the Note B Net Rate;

(f) sixth, to the Note C Holder, up to the amount of any unreimbursed costs and expenses paid by the Note C Holder, with respect to the Mortgage Loan or any REO Property pursuant to this Agreement or the Mortgage Loan Documents, together with accrued and unpaid interest thereon at the Note C Net Rate

(g) seventh, to the Note B Holder in an amount equal to the accrued and unpaid interest on the Note B Principal Balance at the Note B Net Rate;

(h) eighth, to the Note B Holder in an amount equal to the Note B Percentage Interest of principal payments received, if any, with respect to the Mortgage Loan, until the Note B Principal Balance has been reduced to zero;

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(i) ninth, if, as a result of a Workout, the Note B Principal Balance has been reduced, to the Note B Holder, up to the unreimbursed portion of the reduction, if any, of the Note B Principal Balance as a result of such Workout, together with accrued and unpaid interest thereon at the Note B Net Rate;

(j) tenth, to the Note C Holder in an amount equal to the accrued and unpaid interest on the Note C Principal Balance at the Note C Net Rate;

(k) eleventh, to the Note C Holder in an amount equal to the Note C Percentage Interest of principal payments received, if any, with respect to the Mortgage Loan, until the Note C Principal Balance has been reduced to zero;

(l) twelfth, if, as a result of a Workout, the Note C Principal Balance has been reduced, to the Note C Holder, up to the unreimbursed portion of the reduction, if any, of the Note C Principal Balance as a result of such Workout, together with accrued and unpaid interest thereon at the Note C Net Rate;

(m) thirteenth, to the Note A Holder in an amount equal to any Prepayment Premium actually received in respect of Note A, such amount to be determined by separately computing the Prepayment Premium for Note A based on the formula provided in the Mortgage Loan Documents but calculated based on the Note A Net Rate and the portion of the Note A Principal Balance being prepaid;

(n) fourteenth, to the Note B Holder, in an amount equal to any Prepayment Premium actually received in respect of Note B, such amount to be determined by separately computing the Prepayment Premium for Note B based on the formula provided in the Mortgage Loan Documents but calculated based on the Note B Net Rate and the portion of the Note B Principal Balance being prepaid;

(o) fifteenth, to the Note C Holder, in an amount equal to any Prepayment Premium actually received in respect of Note C, such amount to be determined by separately computing the Prepayment Premium for Note C based on the formula provided in the Mortgage Loan Documents but calculated based on the Note C Net Rate and the portion of the Note C Principal Balance being prepaid;

(p) sixteenth, notwithstanding anything to the contrary in any Servicing Agreement, if any Extension Fee or assumption fee or modification or amendment fee is actually paid by the Mortgage Loan Borrower, to the Note A Holder, the Note B Holder and the Note C Holder, on a pari passu basis, in each case up to the respective Percentage Interest of such fee;

(q) Seventeenth, to the extent any default interest or late payment charges paid by the Mortgage Loan Borrower are not required to be otherwise applied under the Servicing Agreement, including, without limitation, to pay any expenses or to compensate any Servicer in accordance with the Servicing Agreement (in each case, provided that such reimbursements or payments relate to the Mortgage Loan or any REO Property), to (i) the Note A Holder (ii) the Note B Holder and (iii) the Note C Holder, on a pari passu basis, in each case up to the respective Percentage Interest of such default interest or late payment charge; and

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(r) eighteenth, if any excess amount is paid by the Mortgage Loan Borrower, and not otherwise applied in accordance with the foregoing clauses (a) through (q), on a pari passu basis, to the Note A Holder, the Note B Holder and the Note C Holder, in each case up to the respective Percentage Interest of such excess amount.

In addition, in the event that any of the Junior Noteholders has previously made a cure payment pursuant to Section 11 in respect of any Monetary Default and the Mortgage Loan Borrower subsequently makes the payment for which the Monetary Default exists, such payment shall be remitted to such Junior Noteholder to reimburse it for such cure payment, so long as no amounts would be payable at such time to the Note A Holder under the foregoing clauses (a)-(d) (or to the Note B Holder under the foregoing clauses (e), (g), (h) and (i) in the event of a cure payment by the Note C Holder).

Section 4. Payments Following a Sequential Pay Event. All payments shall be made to the Holders in respect of the Notes in accordance with Section 3; provided, that, if a Sequential Pay Event, shall have occurred and be continuing, all amounts tendered by the Mortgage Loan Borrower or otherwise available for payment on or with respect to or in connection with the Mortgage Loan or the Mortgaged Property or amounts realized as proceeds thereof (including, without limitation, amounts received as reimbursements on account of recoveries in respect of Servicing Advances), whether received in the form of Monthly Payments, any proceeds from the operation, sale or disposition of an REO Property, if applicable, a Balloon Payment, Liquidation Proceeds, proceeds under any guaranty, letter of credit or other collateral or instrument securing the Mortgage Loan, Condemnation Proceeds, or Insurance Proceeds (other than proceeds, awards or settlements to be applied to the restoration or repair of the Mortgaged Property or released to the Mortgage Loan Borrower in accordance with the terms of the Mortgage Loan Documents), but excluding (x) all amounts for required reserves or escrows required by the Mortgage Loan Documents (to the extent in accordance with the terms of the Mortgage Loan Documents) to continue to be held as reserves or escrows, and (y) all amounts that are then due, payable or reimbursable to any Servicer (or, during a Securitization Period, to the related Trustee or Depositor) with respect to the Mortgage Loan or, if covered by the Servicing Agreement, any REO Property, pursuant to the Servicing Agreement, shall be distributed (subject to Section 5(i)) by the Servicer in the following order of priority without duplication (and payments shall be made at such times as are set forth in the Servicing Agreement):

(a) first, to the Note A Holder in an amount equal to the accrued and unpaid interest on the Note A Principal Balance at the Note A Net Rate;

(b) second, to the Note A Holder in an amount equal to the Note A Principal Balance until the Note A Principal Balance has been reduced to zero;

(c) third, to the Note A Holder up to the amount of any unreimbursed costs and expenses paid by the Note A Holder with respect to the Mortgage Loan or any REO Property pursuant to this Agreement or the Mortgage Loan Documents (excluding any costs and expenses incurred in connection with a Securitization), together with accrued and unpaid interest thereon at the Note A Net Rate;

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(d) fourth, if, as a result of a Workout, the Note A Principal Balance has been reduced, to the Note A Holder up to the unreimbursed portion of the reduction, if any, of the Note A Principal Balance as a result of such Workout, together with accrued and unpaid interest thereon at the Note A Net Rate;

(e) fifth, to the Note B Holder in an amount equal to the accrued and unpaid interest on the Note B Principal Balance at the Note B Net Rate;

(f) sixth, to the Note B Holder in an amount equal to the Note B Principal Balance, if any, until the Note B Principal Balance has been reduced to zero;

(g) seventh, to the Note B Holder, up to the amount of any unreimbursed costs and expenses paid by the Note B Holder, with respect to the Mortgage Loan or any REO Property pursuant to this Agreement or the Mortgage Loan Documents, together with accrued and unpaid interest thereon at the Note B Net Rate;

(h) eighth, if, as a result of a Workout, the Note B Principal Balance has been reduced, to the Note B Holder, up to the unreimbursed portion of the reduction, if any, of the Note B Principal Balance as a result of such Workout, together with accrued and unpaid interest thereon at the Note B Net Rate;

(i) ninth, to the Note C Holder in an amount equal to the accrued and unpaid interest on the Note C Principal Balance at the Note C Net Rate;

(j) tenth, to the Note C Holder in an amount equal to the Note C Principal Balance, if any, until the Note C Principal Balance has been reduced to zero;

(k) eleventh, to the Note C Holder, up to the amount of any unreimbursed costs and expenses paid by the Note C Holder, with respect to the Mortgage Loan or any REO Property pursuant to this Agreement or the Mortgage Loan Documents, together with accrued and unpaid interest thereon at the Note C Net Rate;

(l) twelfth, if, as a result of a Workout, the Note C Principal Balance has been reduced, to the Note C Holder, up to the unreimbursed portion of the reduction, if any, of the Note C Principal Balance as a result of such Workout, together with accrued and unpaid interest thereon at the Note C Net Rate;

(m) thirteenth, to the Note A Holder in an amount equal to any Prepayment Premium actually received in respect of Note A, such amount to be determined by separately computing the Prepayment Premium for Note A based on the formula provided in the Mortgage Loan Documents but calculated based on the Note A Net Rate and the portion of the Note A Principal Balance being prepaid;

(n) fourteenth, to the extent any default interest or late payment charge on the Mortgage Loan is not required to be otherwise applied under the Servicing Agreement, including, without limitation, to pay any expenses or to compensate any Servicer in accordance with the Servicing Agreement (in each case provided that such reimbursements or payments

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relate to the Mortgage Loan or any REO Property), to the Note A Holder up to an amount equal to the Note A Percentage Interest of such default interest or late payment charge;

(o) fifteenth, notwithstanding anything to the contrary in the Servicing Agreement, if any Extension Fee or assumption fee or amendment or modification fee is actually paid by the Mortgage Loan Borrower, to the Note A Holder in an amount equal to the Note A Percentage Interest of such fee;

(p) sixteenth, to the Note B Holder, in an amount equal to any Prepayment Premium actually received in respect of Note B, such amount to be determined by separately computing the Prepayment Premium for Note B based on the formula provided in the Mortgage Loan Documents but calculated based on the Note B Net Rate and the portion of the Note B Principal Balance being prepaid;

(q) seventeenth, to the extent any default interest or late payment charge on the Mortgage Loan is not required to be otherwise applied under the Servicing Agreement, including, without limitation, to pay any expenses or to compensate any Servicer in accordance with the Servicing Agreement (in each case provided that such reimbursements or payments relate to the Mortgage Loan or any REO Property), to the Note B Holder up to an amount equal to the Note B Percentage Interest of such default interest or late payment charge;

(r) eighteenth, notwithstanding anything to the contrary in any Servicing Agreement, if any Extension Fee or assumption fee or amendment or modification fee is actually paid by the Mortgage Loan Borrower, to the Note B Holder in an amount equal to the Note B Percentage Interest of such fee;

(s) nineteenth, to the Note C Holder, in an amount equal to any Prepayment Premium actually received in respect of Note C, such amount to be determined by separately computing the Prepayment Premium for Note C based on the formula provided in the Mortgage Loan Documents but calculated based on the Note C Net Rate and the portion of the Note C Principal Balance being prepaid

(t) twentieth, to the extent any default interest or late payment charge on the Mortgage Loan is not required to be otherwise applied under the Servicing Agreement, including, without limitation, to pay any expenses or to compensate any Servicer in accordance with the Servicing Agreement (in each case provided that such reimbursements or payments relate to the Mortgage Loan or any REO Property), to the Note C Holder up to an amount equal to the Note C Percentage Interest of such default interest or late payment charge;

(u) twenty-first, notwithstanding anything to the contrary in any Servicing Agreement, if any Extension Fee or assumption fee or amendment or modification fee is actually paid by the Mortgage Loan Borrower, to the Note C Holder in an amount equal to the Note C Percentage Interest of such fee; and

(v) twenty-second, if any excess amount is paid by the Mortgage Loan Borrower, and not otherwise applied in accordance with the foregoing clauses (a) through (u), to the Note A Holder, the Note B Holder and the Note C holder, on a pari passu basis, in each case up to the respective Percentage Interest of such excess amount.

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Section 5. Administration and Servicing of the Mortgage Loan.

(a) Except as otherwise specifically provided in this Section 5, the Note A Holder (or Servicer on its behalf) shall have the sole and exclusive authority with respect to the administration and servicing of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Events of Default, accelerate the Mortgage Loan or institute any foreclosure action and, except as specifically provided otherwise in this Section 5, the Junior Noteholders shall have no voting, consent or other rights whatsoever with respect to the Note A Holder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Except as specifically provided in this Section 5, each of the Note B Holder and Note C Holder agrees that it shall have no rights to, and hereby presently and irrevocably assigns and conveys to the Note A Holder the rights, if any, that the Note B Holder or the Note C Holder has to, (i) call or cause any applicable party to call an Event of Default under the Mortgage Loan or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower including, without limitation, filing or causing any applicable party to file any bankruptcy petition against the Mortgage Loan Borrower. The Note A Holder shall not have any fiduciary duty to the Junior Noteholders in connection with the administration of the Mortgage Loan, the Note B Holder shall not have any fiduciary duty to the Note A Holder or the Note C Holder in connection with the Note B Holder’s administration of the Mortgage Loan to the extent permitted hereby and the Note C Holder shall not have any fiduciary duty to the Note A Holder or the Note B Holder in connection with the Note C Holder’s administration of the Mortgage Loan to the extent permitted hereby.

(b) If any customary, reasonable and necessary “out of pocket” cost or expense (including attorneys’ fees and fees and expenses of real estate brokers) is payable in connection with the servicing and administration of the Mortgage Loan, at such time as a default is imminent thereunder or a default, delinquency or other unanticipated event has occurred with respect thereto, or in connection with the administration of any REO Property, including, but not limited to, the cost of (i) real estate taxes and assessments and insurance premiums, (ii) the preservation, insurance, restoration, inspection, protection and management of the Mortgaged Property, (iii) obtaining any insurance proceeds or condemnation proceeds or liquidating the Mortgage Loans or the Mortgaged Property or any REO Property, (iv) any enforcement or judicial proceedings with respect to the Mortgaged Property, including foreclosures, (v) any appraisal or update thereof expressly permitted or required to be obtained hereunder, and (vi) the operation, management, maintenance and liquidation of any REO Property, and, further, if no Servicer is obligated to advance the amount of such cost or expense, then any Holder may elect (but shall not be obligated) to pay all or any portion of such cost or expense out of its own funds.

(c) Servicing

(i) The powers and duties conferred by Section 5(a) above shall be carried out by means of the Servicing Agreement, which shall require the Servicer to service and administer, and exercise the rights and remedies with respect to, the Mortgage Loan in accordance with this Agreement, the Intercreditor Agreement and Accepted Servicing

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Practices and only as directed by the Note A Holder (or by the Controlling Holder as provided by Section 5(f)(C) or 5(f)(D), taking into account the interests of both the Note A Holder and the Junior Noteholders (it being understood that the interests of the Junior Noteholders are subordinate interests, subject to the terms and conditions of this Agreement), and any Holder who is not a party to the Servicing Agreement and is not the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, shall be deemed a third party beneficiary of such provisions of the Servicing Agreement. The foregoing provisions of this Section 5(c)(i) shall not limit or modify the rights of the Holders to exercise their rights specifically set forth under this Agreement. Subject to the terms of the Servicing Agreement, the Note A Holder shall have the sole and exclusive right to enter into a Pooling and Servicing Agreement in the case of a Securitization, and subject to the terms of Section 5(c)(v) below, shall have the sole and exclusive right to enter into any replacement Servicing Agreement that the Note A Holder deems necessary or desirable; provided that such Pooling and Servicing Agreement or any such replacement Servicing Agreement shall be subject to the consent of the Note B Holder and the Note C Holder (such consent not to be unreasonably withheld, conditioned or delayed), unless the provisions thereof concerning the rights of such Holders are either (x) substantially the same as the Initial Servicing Agreement or (y) more favorable to such Holders than the provisions of the Initial Servicing Agreement. Any non-approval shall not be deemed unreasonable if such Pooling and Servicing Agreement or replacement Servicing Agreement provides for (I) increased servicing compensation borne by the Junior Noteholders, (II) special servicing fees in excess of the market standard rate or (III) liquidation, workout or similar fees, unless the Controlling Holder approved such fees or directed the appointment of the Special Servicer. Any special servicer appointed by the Controlling Holder shall be a nationally-recognized special servicer regularly engaged in the business of servicing specially serviced assets of a type similar to the Mortgage Loan (and during a Securitization Period, shall be an entity that has the Required Special Servicer Rating). The Note A Holder shall have the right to consent to the terms of any proposed special servicing agreement pursuant to which the special servicer is to perform (such consent not to be unreasonably withheld, conditioned or delayed), unless the provisions thereof concerning the rights of such Holders are either (x) substantially the same as the Initial Servicing Agreement or (y) more favorable to such Holders than the provisions of the Initial Servicing Agreement.

(ii) The Junior Noteholders agree to be bound by the terms of the Servicing Agreement in respect of such administration. Junior Noteholders hereby irrevocably and unconditionally consents to the appointment of the Servicer under a Servicing Agreement entered into by the Note A Holder in accordance with this Agreement, and, in the event of a Securitization, agrees to reasonably cooperate with the Note A Holder, and irrevocably and unconditionally consents to the appointment in accordance with this Agreement of each Servicer and the Trustee under a Pooling and Servicing Agreement by the related Depositor. The Junior Noteholders hereby appoints each Servicer under each Servicing Agreement, and the Trustee in any Securitization, as the Junior Noteholders’ attorneys-in-fact to sign any documents reasonably required with respect to the administration and servicing in accordance with this Agreement of the Junior Notes on its behalf under such Servicing Agreement. In no event shall any Servicing Agreement require any Servicer to enforce the rights of the Junior Noteholders against the Note A

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Holder or limit such Servicer in enforcing the rights of the Note A Holder against the Junior Noteholders; however, this statement shall not be construed to otherwise limit the rights of the Junior Noteholders as between them and the Note A Holder.

(iii) The Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Junior Notes or to make other Servicing Advances except in accordance with the Servicing Agreement, provided however, that the Servicer shall be required to disburse payments received from the Mortgage Loan Borrower or any other source as provided in Sections 3 and 4 hereof.

(iv) In the event, from time to time, of any conflict between the terms of this Agreement and any Servicing Agreement, the terms of this Agreement shall control.

(v) Notwithstanding anything to the contrary contained herein, the Holders agree that the Servicer may not be removed or terminated other than for “cause” as set forth in the Servicing Agreement or as otherwise provided in the Servicing Agreement. In the event that the Servicer is terminated as described in the preceding sentence, the Note A Holder shall enter into a replacement Servicing Agreement with a replacement Servicer selected by the Note A Holder; provided that any related servicing fees shall be paid pro rata by the Holders (based on their respective Percentage Interests) in the case of any successor Servicer. Such replacement servicing agreement shall be approved by the Note A Holder (subject to the consent rights of the Controlling Holder set forth in section 5(c)(i)) and shall contain terms substantially similar to the prior Servicing Agreement in all material respects, and shall require that the Servicer service the Mortgage Loan in accordance with Accepted Servicing Practices and this Agreement. Any amendments to the Initial Servicing Agreement or any replacement Servicing Agreement shall be approved by the Note A Holder and, if the Note B Holder or Note C Holder is adversely affected thereby, the Note B Holder or Note C Holder, as applicable (such approval not to be unreasonably withheld, conditioned or delayed). In the event that a Servicing Agreement expires or is terminated, then until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any Person meeting the requirements set forth in the definition of “Servicer” herein and appointed with due care by the Note A Holder.

(d) Subject to the terms and conditions of the Servicing Agreement and this Agreement, the rights of the Controlling Holder set forth in Section 5(e) and Section 5(f) hereof, if the Note A Holder in connection with a Workout or proposed Workout of the Mortgage Loan modifies the terms thereof such that (i) the unpaid principal balance of the Mortgage Loan is decreased, (ii) the Applicable Interest Rates or scheduled amortization payments on the Mortgage Loan are reduced, (iii) payments of interest or principal on the Mortgage Loan are waived, reduced or deferred, (iv) the maturity date of the Mortgage Loan is modified, or (v) any other adjustment is made to any of the terms of the Mortgage Loan, all payments to the Note A Holder pursuant to Section 3 and Section 4, as applicable, shall be made as though such Workout did not occur, with the payment terms of Note A remaining the same as they are on the date hereof, and the Junior Notes shall bear the full economic effect of all waivers, reductions or deferrals of amounts due on the Mortgage Loan attributable to such Workout (up to the amount otherwise due on each such Junior Note), with such economic effect to be borne first by the Note

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C Holder and then by the Note B Holder, up to each such Holder’s then outstanding Principal Balance. Subject to the applicable Servicing Agreement and this Agreement (including without limitation the previous sentence and Section 6), in the case of any modification or amendment described above, the Note A Holder will have the sole authority and ability to revise the payment provisions set forth in Section 3 and Section 4 above in a manner that reflects the subordination of the Junior Notes to Note A with respect to the loss that is the result of such amendment or modification, including: (i) the ability to increase the Note A Percentage Interest and to reduce the Note B Percentage Interest and the Note C Percentage Interest in a manner that reflects a loss in principal as a result of such amendment or modification and (ii) the ability to change the Note A Net Rate, the Note B Net Rate and the Note C Net Rate in order to reflect a reduction in the weighted average of the Applicable Interest Rates of the Mortgage Loan. If on any date where LIBOR is required to be determined by the Note A Holder, but the Note A Holder is unable to determine LIBOR, the Note A Net Rate, the Note B Net Rate and the Note C Net Rate, as the case may be, will be based on an alternative index and spread chosen by the Note A Holder in accordance with the provisions of the Mortgage Loan Documents.

(e) Notwithstanding the preceding paragraphs of Section 5 but subject to Section 5(b) (and without affecting the rights of the Controlling Holder set forth in Section 5(e) and Section 5(f)), the applicable Servicer shall (i) consult with the Controlling Holder or its Operating Advisor (provided that the Note A Holder is not the Controlling Holder) upon the occurrence of any Appraisal Reduction Event and (ii) whether or not an Appraisal Reduction Event has occurred, provide the Controlling Holder with notice of any proposal to take any significant action with respect to the Mortgage Loan or the Mortgaged Property (including without limitation, any adoption or implementation of a business plan submitted by the Mortgage Loan Borrower with respect to the Mortgaged Property, any material alterations on the Mortgaged Property that require approval of the Mortgage Lender, the release of any portion of the Mortgaged Property as collateral for the Notes, the waiver of any notice provisions related to prepayment, the release of any escrow held in connection with the Mortgage Loan to the Mortgage Loan Borrower not expressly required by the Mortgage Loan Documents or applicable law and the execution, modification or renewal of any lease that requires approval of the Mortgage Lender) and consider and give appropriate weight to alternative actions recommended by the Controlling Holder or Operating Advisor; provided, however, that such Servicer shall have no obligation to consider such alternative actions unless the Controlling Holder or its Operating Advisor, in accordance with any provisions in the Mortgage Loan Documents requiring Mortgage Lender consent, approval or satisfaction, responds promptly and in no event later than five (5) days prior to the time that the lender’s response is required under the Mortgage Loan Documents (or, if no time limitation is set forth for such response in the Mortgage Loan Documents, then the Controlling Holder or its Operating Advisor shall respond within a reasonable time as reasonably determined by such Servicer and notified to the Controlling Holder in writing). The applicable Servicer shall promptly provide back-up materials that are available to or used by such Servicer in developing such proposals (as reasonably determined by such Servicer), including but not limited to (and only if previously obtained by such Servicer and not previously delivered to the Junior Noteholders) property inspection reports, credit reports, the Mortgage Loan Borrower financial and/or operating statements, budgets, appraisals, engineering reports, soil reports, environmental assessment reports, seismic reports, architect’s certificates, insurance premium receipts and insurance claim files.

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(f) The applicable Servicer shall promptly provide the Holders with copies of all Asset Status Reports. With respect to the Mortgage Loan, if the Note A Holder (unless the Note A Holder is the Controlling Holder) or the Servicer desires to take, is requested or receives a recommendation to take, any of the following actions:

(i) any modification of, or waiver with respect to, the Mortgage Loan that would result in the extension of the maturity date or extended maturity date thereof, a reduction in the interest rate borne thereby or the monthly debt service payment or a deferral or a forgiveness of interest on or principal of the Mortgage Loan, any increase in the Mortgage Loan amount (other than as a result of protective advances), the waiver of any notices provisions relating to prepayment, a modification or waiver of any other monetary term of the Mortgage Loan relating to the amount of any payment of principal or interest or any other material sums due and payable under the Mortgage Loan Documents, or any modification or waiver of any material non-monetary provision of the Mortgage Loan, including but not limited to provisions which restrict the Mortgage Loan Borrower or its equity owners from incurring additional indebtedness or transferring interests in the Mortgaged Property or the Mortgage Loan Borrower;

(ii) any modification of, or waiver with respect to, the Mortgage Loan that would result in a discounted pay-off of the Mortgage Loan;

(iii) any foreclosure upon or comparable conversion (which may include acquisition of an REO Property) of the ownership of the Mortgaged Property, or any acquisition of the Mortgage Loan by deed-in-lieu of foreclosure, or any other exercise of remedies following an Event of Default under the Mortgage Loan Documents, including the acceleration of the Mortgage Loan or initiation of any proceedings, judicial or otherwise, under the Mortgage Loan Documents; provided, that with respect to any Event of Default which is still continuing ninety (90) days after the first occurrence of such Event of Default, this Section 5(f)(iii) shall no longer be of any force or effect with respect to the Controlling Holder (provided that, Controlling Holder shall not waive any remedies under the Mortgage Loan except to the extent such remedies are waived in a modification or workout which resolves or otherwise waives the Event of Default in question as permitted under this Section 5);

(iv) any sale of all or any portion of the Mortgaged Property or, if applicable, an REO Property (other than upon termination of the trust established under the Pooling Agreement);

(v) any action to bring the Mortgaged Property or, if applicable, an REO Property into compliance with any laws relating to hazardous materials;

(vi) [Reserved];

(vii) any substitution or release of collateral for the Mortgage Loan where consent for such substitution or release is required from the Mortgage

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Lender and any modification of release prices set forth in the Mortgage Loan Documents with respect to any part of the Mortgaged Property;

(viii) the appointment of a Special Servicer for the Mortgage Loan and any approval of a replacement Special Servicer for the Mortgage Loan (other than in connection with the Trustee’s becoming the successor Special Servicer upon the occurrence of a “Servicer Event of Default” (or other term of similar import) under the Pooling and Servicing Agreement);

(ix) any release of the Mortgage Loan Borrower, guarantor or indemnitor from liability with respect to the Mortgage Loan including, without limitation, by acceptance of an assumption of the Mortgage Loan by a successor Mortgage Loan Borrower or replacement guarantor or indemnitor and the approval of any such replacement guarantor or indemnitor, where consent for such release is required from the Mortgage Lender;

(x) any determination not to enforce a “due-on-sale” or “due-on-encumbrance” clause, (unless such clause is not exercisable under applicable law or such exercise is reasonably likely to result in successful legal action by the Mortgage Loan Borrower);

(xi) any transfer of the Mortgaged Property or any portion thereof, or any transfer of any direct or indirect ownership interest in the Mortgage Loan Borrower by a Person entitled to exercise voting rights, directly or indirectly, in the Mortgage Loan Borrower, except in each case as expressly permitted by the Mortgage Loan Documents;

(xii) to the extent the consent of the Mortgage Lender is required under the terms of the Mortgage Loan Agreement, any incurring of additional debt by the Mortgage Loan Borrower, including the terms of any document evidencing or securing any such additional debt and of any intercreditor or subordination agreement executed in connection therewith and any waiver of or amendment or modification to the terms of any such document or agreement or incurring of mezzanine financing by any beneficial owner of the Mortgage Loan Borrower, including the terms of any document evidencing or securing any such mezzanine debt and of any intercreditor or subordination agreement executed in connection therewith and any waiver of or amendment or modification to the terms of any such document or agreement;

(xiii) the voting on any plan of reorganization, restructuring or similar plan in the bankruptcy of the Mortgage Loan Borrower;

(xiv) any proposed modification or waiver of any provision of any Mortgage Loan Documents governing the types, nature or amounts of insurance coverage required to be obtained and maintained by the Mortgage Loan Borrower;

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(xv) any renewal or replacement of the then existing insurance policies (to the extent the Mortgage Lender’s approval is required under the Mortgage Loan Documents);

(xvi) any approval of the termination or replacement of the “Manager” (as defined in the Mortgage Loan Agreement) or any successor thereto or of the execution, termination, renewal or material modification of the “Management Agreement” (as defined in the Mortgage Loan Agreement) or any replacement management agreement to the extent Mortgage Lender approval is required by the Mortgage Loan Documents or approval of any replacement property manager or replacement management agreement;

(xvii) any waiver of amounts required to be deposited into any lockbox, collection or escrow reserve accounts (whether in the form of letters of credit, cash or other analogous security) under the Mortgage Loan Documents, or any modification or amendment to any of the Mortgage Loan Documents that would reduce the amount of funds required to be deposited into reserve accounts established under the Mortgage Loan Documents (other than changes in the ordinary course of business of the amounts required to be deposited into escrow accounts for real estate taxes, insurance premiums or ground rents, if any);

(xviii) the release of any escrow or reserve funds (whether held as letters of credit, cash or analogous security) or any adjustments thereto held in connection with the Mortgage Loan to which the Mortgage Loan Borrower is not entitled under the Mortgage Loan Documents or applicable law, specifically including the calculations relating to deposits, released and capped amounts for the Rollover Reserve under Section 7.5.1 of the Mortgage Loan Agreement;

(xix) the settlement of any insurance claim for a cash payment that will be applied to the principal amount of the Mortgage Loan, if such repayment would not result in the payment in full of all amounts due and payable to the Controlling Holder;

(xx) the approval or adoption of any material alteration at the Mortgaged Property (if Mortgage Lender approval is required by the Mortgage Loan Documents and, if so, notwithstanding anything to the contrary set forth herein, subject to the same standard of approval as is applicable thereto in the Mortgage Loan Documents);

(xxi) the waiver or modification of any provision in the Mortgage Loan Documents relating to the Interest Rate Cap Agreement (as defined in the Mortgage Loan Agreement) (including any provision requiring certain minimum financial ratings for the provider of an Interest Rate Cap Agreement), or the waiver of any claim against, or release of, any counter-party to any Interest Rate Cap Agreement;

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(xxii) the waiver or modification in the Mortgage Loan Agreement of the Guarantor net worth or liquidity covenants;

(xxiii) the application of insurance or condemnation proceeds to the Mortgage Loan in circumstances where the Servicer determines using Accepted Servicing Practices (in consultation with any architect or engineer selected by Servicer) that (a) the Net Proceeds (as defined in the Mortgage Loan Agreement) are not, or are not likely to be, sufficient to pay off the Mortgage Loan in its entirety, (b) no Event of Default has occurred which is continuing, and (c) the applicable requirements set forth in Section 6 of the Mortgage Loan Agreement are satisfied;

(xxiv) the approval or adoption or modification of the Approved Annual Budget (as defined in the Mortgage Loan Agreement) pursuant to Section 5.1.10(d)) of the Mortgage Loan Agreement, other than the initial approval by the Controlling Holder of the Approved Annual Budget;

(xxv) the execution, termination, modification, amendment or renewal of any lease (if Mortgage Lender approval is provided for in the Mortgage Loan Documents);

(xxvi) approval of any plans and specifications submitted to Mortgage Lender for approval under the terms and provisions of the Mortgage Loan Documents;

(xxvii) approval of any renovation plans and specifications, condominium conversion plans and filings, the entering into or material amendment of any condominium documents, renovation agreements or architects agreements (and any material amendments, modifications or waivers thereto), change orders, architects, general contractors, contractors and subcontractors in each case to the extent Mortgage Lender’s approval is required under the Mortgage Loan Documents

(xxviii) any waiver of any material Event of Default or any event that, with notice or the passage of time, would constitute a material Event of Default;

(xxix) any modification of the Intercreditor Agreement or consent required to be given by “Senior Lender” under the Intercreditor Agreement;

(xxx) during a Securitization Period, any other action which the Controlling Holder (or its Operating Advisor) has been given the right to approve pursuant to the terms of the Pooling and Servicing Agreement; or

(xxxi) the subordination of the Mortgage Loan to any other interest in the Mortgaged Property,

then, the Servicer shall provide to the Controlling Holder and the Operating Advisor, all information in the possession of such Servicer or reasonably obtainable by such Servicer which

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such Servicer considers to be material in connection with evaluating any of the foregoing proposed actions or which is reasonably requested by the Controlling Holder or its Operating Advisor (but for which the Servicer shall not be obligated to provide any analysis or specific recommendations to the Controlling Holder and the Operating Advisor in connection with such information which has not also been provided to the Note A Holder, it being understood that the Servicer is not obligated to provide any such analysis or recommendations to the Note A Holder), and the Controlling Holder or its Operating Advisor shall then have five (5) Business Days (to the extent such period does not delay such Servicer from taking any action that is required by Accepted Servicing Practices prior to the expiration of such period) within which to:

(A) approve or disapprove of such proposed action (which initial approval by the Controlling Holder under Section 5(f)(xxv) shall not to be unreasonably withheld by the Controlling Holder),

(B) to consult with and advise such Servicer regarding the proposed action,

(C) direct the Servicer with respect to the matters set forth in Section 5(f)(iii) (to the extent of causing a foreclosure prior to the expiration of 90 days after an Event of Default under the Mortgage Loan), 5(f)(v) (but only to the extent that the Note A Holder is not required to pay, advance or otherwise reimburse any Person for associated environmental remediation measures), 5f(viii), 5(f)(xvi), 5(f)(xx), 5(f)(xxiii) (to the extent of directing the Servicer to make Net Proceeds (as defined in the Mortgage Loan Agreement) available to the Mortgage Loan Borrower for Restoration (as defined in the Mortgage Loan Agreement) so long as all of the conditions in Section 5(f)(xxiii) are met) or 5(f)(xxv) (provided that the Controlling Holder may direct the Servicer to approve any failure to renew or any termination of a lease, only to the extent that such lease is at a below market rate and may not direct the Servicer to approve the execution of any lease that is at a below market rate), or

(D) to the extent the Controlling Holder or the Special Servicer reasonably believes that the outstanding principal balances of the senior Holders will be repaid in full pursuant to such direction, direct the Servicer with respect to the matters set forth in Section 5(f)(ii), 5(f)(iv) or 5(f)(xix);

provided, that (x) if the Controlling Holder or its Operating Advisor, fails to notify such Servicer of its approval or disapproval of any such proposed action within five (5) Business Days of delivery to the Controlling Holder or its Operating Advisor, by such Servicer of written notice of such a proposed action, which must contain a bold legend advising as to the potential deemed consent and the date of such deemed consent, together with all information reasonably necessary to make an informed decision with respect thereto, Servicer will provide a second notice to the Controlling Holder and its Operating Advisor by Servicer of written notice of such a proposed action which must contain a bold legend advising as to the potential deemed consent and the date of such deemed consent, whereupon such action by Servicer shall be deemed to have been approved by the Controlling Holder or its Operating Advisor, as applicable, if the Controlling Holder or its Operating Advisor, fails to notify Servicer of its approval or disapproval of any such proposed action within five (5) Business Days of delivery to the Controlling Holder and its Operating Advisor by Servicer of such second written notice, (y) with respect to any of the foregoing actions which necessitate the delivery of an Asset Status Report, such action will be

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taken in accordance with the procedures set forth in the applicable Servicing Agreement with respect to the delivery and approval of such Asset Status Report and (z) such rights are subject to the limitations set forth below, including but not limited to the obligation of such Servicer to act in accordance with the Accepted Servicing Practices. Notwithstanding anything contained herein, such Servicer under the Initial Servicing Agreement shall not be required to provide any reports, analysis or Asset Status Reports that constitute Special Services under the Initial Servicing Agreement unless otherwise agreed to in writing.

Notwithstanding anything contained in Section 5(e) or Section 5(f), the applicable Servicer shall not be required to take or refrain from taking any action if doing so would (1) require or cause such Servicer to violate any applicable law, (2) violate or be inconsistent with Accepted Servicing Practices, (3) require or cause such Servicer to violate any other provisions of this Agreement or the applicable Servicing Agreement, (4) require or cause such Servicer to violate the terms of the Mortgage Loan, the Intercreditor Agreement or the Mortgage Loan Documents, (5) expose any Holder or any party to the applicable Servicing Agreement or their affiliates, officers, directors, employees or agents to any claim, suit or liability or (6) materially expand the scope of such Servicer’s responsibilities under the applicable Servicing Agreement (clauses (1) through (6), collectively, the “Precluded Actions”). In the event that the applicable Servicer determines that any instruction, request or rejection of a proposed action by or from the Controlling Holder or its Operating Advisor would cause such Servicer to engage in a Precluded Action, then such Servicer shall endeavor to promptly provide an alternative proposed action that would not be a Precluded Action and that is acceptable to the Controlling Holder or its Operating Advisor; provided, however, that such Servicer shall not be required to do so if for a period of ninety (90) days following the first date on which such Servicer has proposed an action the Controlling Holder or its Operating Advisor has rejected all proposals provided by such Servicer and has not itself provided a proposal that would not be a Precluded Action.

In addition, the following actions listed in Section 5(f) herein shall require the consent of the Note A Holder, as well as the consent of the Controlling Holder: 5(f)(i) (but only to the extent that such modification or waiver thereof would result in an adverse monetary effect on the Note A), 5(f)(ii) (but only to the extent that the proceeds thereof would be insufficient to pay all amounts due to the Note A Holder), 5(f)(iv) (but only to the extent that the proceeds thereof would be insufficient to pay all amounts due to the Note A Holder), 5(f)(vii), 5(f)(ix), 5(f)(xi), 5(f)(xii), 5(f)(xiii) (but only to the extent that such plan would impair the Note A Holder), 5(f)(xvii), 5(f)(xviii) and 5(f)(xxviii) (provided that the Controlling Holder may waive or forbear from exercising remedies with respect to such Event of Default for a period of 150 days without the consent of the Note A Holder); provided, that party designated to provide consent on behalf of the Note A Holder must comply with the terms of Section 36 herein; provided further that if the Note A Holder fails to notify such Servicer of its approval or disapproval of any such proposed action within five (5) Business Days of delivery to the Note A Holder, by such Servicer of written notice of such a proposed action, which must contain a bold legend advising as to the potential deemed consent and the date of such deemed consent, together with all information reasonably necessary to make an informed decision with respect thereto, Servicer will provide a second notice to the Note A Holder by Servicer of written notice of such a proposed action which must contain a bold legend advising as to the potential deemed consent and the date of such deemed consent, whereupon such action by Servicer shall be deemed to have been approved by the Note A Holder if the Note A Holder fails to notify Servicer of its

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approval or disapproval of any such proposed action within five (5) Business Days of delivery to the Note A Holder by Servicer of such second written notice; provided further that any decision by the Note A Holder pursuant to this Section shall be required to be within Accepted Servicing Practices.

(g) Upon the occurrence and continuance of an Appraisal Reduction Event, the Servicer shall promptly order an Appraisal and deliver the same to the Junior Noteholders. Such Appraisal shall be in accordance with the Uniform Standards of Professional Appraisal Practice and shall be subject to such assumptions and methodology as the most recent appraisal received with respect to the Mortgaged Property. If no such Appraisal has been received within sixty (60) days after the occurrence of any such Appraisal Reduction Event, then, until such time as an Appraisal is received, (a) the Collateral Value will be determined by reference to the most recent appraisal received with respect to the Mortgaged Property or (b) any Junior Noteholder may (at its expense) deliver an Appraisal made in accordance with the Uniform Standards of Professional Appraisal Practice and subject to such assumptions and methodology as the most recent appraisal received with respect to the Mortgaged Property, in which event the Collateral Value shall be determined (or redetermined) based on such Appraisal, and if, as a result of such determination (or redetermination), any Control Appraisal Period then in effect shall no longer be determined to exist, the applicable Junior Noteholder (in accordance with the definition of the Controlling Holder) shall be reinstated as the Controlling Holder. In addition, the Servicer shall obtain either a new Appraisal or letter updates to each Appraisal (and deliver the same to the Junior Noteholders) (a) at the request of any Junior Noteholder or the Operating Advisor at the expense of such Junior Noteholder or Operating Advisor and (b) during the continuance of an Appraisal Reduction Event, every twelve (12) months following the occurrence of such Appraisal Reduction Event and the Collateral Value shall be recalculated and, if a Control Appraisal Period no longer exists, the control rights of the applicable Junior Noteholder (and any Operating Advisor acting on its behalf) shall be reinstated as described above. In determining the existence of a Control Appraisal Period (and solely for such purpose), any Appraisal Reduction Amounts shall be allocated pursuant to the definition of Control Appraisal Period first, to reduce the Note C Principal Balance (not below zero) and, thereafter, to reduce the Note B Principal Balance (not below zero). After a Securitization, the effects of the occurrence and continuation of an Appraisal Reduction Event shall be determined pursuant to the Pooling and Servicing Agreement.

(h) Notwithstanding the foregoing, a Junior Noteholder shall be entitled to avoid a Control Appraisal Period caused by application of an Appraisal Reduction Amount upon satisfaction of the following (which must be completed within thirty (30) days of the receipt of an Appraisal that indicates a Control Appraisal Period has occurred): (i) the Junior Noteholder shall have delivered as a supplement to the appraised value of the Mortgaged Property, in the amount specified in clause (ii) below, to the Master Servicer or the Special Servicer (in each case, together with documentation acceptable to the Master Servicer or the Special Servicer in accordance with the Accepted Servicing Practices to create and perfect a first priority security interest in such collateral), (a) cash collateral for the benefit of, and acceptable to, the applicable Servicer, or (b) an unconditional and irrevocable standby letter of credit (with the Trustee, if applicable, as beneficiary) issued by a bank or other financial institution the long term unsecured debt obligations of which are rated at least “A+” by S&P and “A1” by Moody’s or the short term obligations of which are rated at least “A-1” by S&P and “P-1” by Moody’s (either (a) or (b),

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“Threshold Event Collateral”), and (ii) the Threshold Event Collateral shall be in an amount which, when added to the appraised value of the Mortgaged Property as determined pursuant to this Agreement, would cause the Control Appraisal Period not to occur. If the requirements of this paragraph are satisfied by such Junior Noteholder (a “Threshold Event Cure”), no Control Appraisal Period caused by application of an Appraisal Reduction Amount shall be deemed to have occurred. If a letter of credit is furnished as Threshold Event Collateral, the applicable Junior Noteholder shall be required to renew such letter of credit not later than thirty (30) days prior to expiration thereof or to replace such letter of credit with a substitute letter of credit or other Threshold Event Collateral with an expiration date that is greater than forty-five (45) days from the date of substitution or other Threshold Event Collateral; provided, however, that if a letter of credit is not renewed prior to thirty (30) days prior to the expiration date of such letter of credit, the letter of credit shall provide that the applicable Servicer may (and at the direction of the applicable Junior Noteholder, shall) draw upon such letter of credit and hold the proceeds thereof as Threshold Event Collateral. The Threshold Event Cure shall continue until: (i) the appraised value of the Mortgaged Property plus the value of the Threshold Event Collateral would not be sufficient to prevent a Control Appraisal Period from occurring; or (ii) the occurrence of a Final Recovery Determination. If the appraised value of the Mortgaged Property, upon any redetermination thereof, is sufficient to avoid the occurrence of a Control Appraisal Period without taking into consideration any, or some portion of Threshold Event Collateral previously delivered by such Junior Noteholder, any or such portion of Threshold Event Collateral held by the applicable Servicer shall be returned to such Junior Noteholder (at such Junior Noteholder’s sole expense). Upon a Final Recovery Determination with respect to the Mortgage Loan such Threshold Event Collateral shall be available to reimburse the Note A Holder (and, if applicable, the Junior Noteholders) for any realized loss with respect to the Mortgage Loan after application of the net proceeds of liquidation, not in excess of the applicable Principal Balance, plus any accrued and unpaid interest thereon at the applicable interest rate and to reimburse the Trust Fund for any Additional Trust Fund Expenses reimbursable under this Agreement and under the Pooling and Servicing Agreement. The remainder of the Threshold Event Collateral, after any such reimbursement, shall be released to the applicable Junior Noteholder. The Threshold Event Collateral, or a portion thereof, shall be released to the Junior Noteholder that posted such Threshold Event Collateral if the appraised value of the Mortgaged Property, upon any redetermination thereof, is sufficient to avoid the occurrence of a Control Appraisal Period without taking into consideration any, or such portion of, Threshold Event Collateral previously delivered by such Junior Noteholder. Upon notification of a Final Recovery Determination by the Note A Holder to the Junior Noteholders, any Junior Noteholder may, at its option if all amounts owing on its Note have not been paid in full, request that all right, title and interest to the Mortgage Loan (including all rights to pursue remedies or recovery against Mortgage Loan Borrower or any other obligor with respect to the Mortgage Loan) be assigned to such Junior Noteholder, whereupon the Note Holders whose Notes have been paid in full and Servicer will cause such assignment to be made without representation, warranty or liability to such Note Holders or Servicer. Nothing in this Section 5 shall be construed to require any Holder to provide Threshold Event Collateral at any time

(i) If Note A is included as an asset of a real estate mortgage investment conduit (a “REMIC”), within the meaning of Section 860D(a) of the Code, then, any provision of this Agreement to the contrary notwithstanding: (i) the Mortgage Loan shall be administered such that Note A shall qualify at all times as a “qualified mortgage” within the meaning of

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Section 860G(a)(3) of the Code; (ii) any real property (and related personal property) acquired by or on behalf of the Holders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be administered so that the interest of the Holders therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code; and (iii) the applicable Servicer shall not modify, waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of the Mortgage Loan Borrower, or exercise or refrain from exercising any powers or rights which any Holder may have under the Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three months after the startup day of the REMIC which includes Note A (or any portion thereof, unless an Event of Default has occurred or is reasonably foreseeable). The Holders agree that the provisions of this paragraph shall be effected by compliance with any REMIC provisions in the Pooling and Servicing Agreement relating to the administration of the Mortgage Loan or any Note.

Anything herein or in any Pooling and Servicing Agreement to the contrary notwithstanding, in the event Note A is included in a REMIC, the Junior Noteholders shall not be required to reimburse the Note A Holder or any other Person for payment of any taxes imposed on such REMIC or Servicing Advances therefor or for any Advance Interest Amount thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, nor shall any disbursement or payment otherwise distributable to such Junior Noteholder be reduced to offset or make-up any such payment or deficit.

Without limitation of the foregoing, no Junior Noteholder shall be required to incur, or reimburse the Note A Holder or any other Person for: (i) any fees, costs and expenses related to the Securitization or the negotiation of the Pooling and Servicing Agreement; (ii) any fees, costs or expenses related to a Rating Agency Confirmation, unless such Rating Agency Confirmation is requested by any Junior Noteholder; or (iii) any fees, costs or expenses in connection with any audit by the Internal Revenue Service, or opinion letters related to REMIC taxes. To the extent Mortgage Loan Borrower is expressly obligated under the Mortgage Loan Documents to reimburse Note A Holder for any costs or expenses related to a Securitization, Note A Holder may receive such reimbursement amounts directly from the Mortgage Loan Borrower.

(j) Each Holder shall, upon demand of the Servicer in accordance with the provisions of the Initial Servicing Agreement, pay to such Servicer an amount equal to its Percentage Interest of costs and expenses incurred by the Servicer in connection with the Servicing Agreement that are reimbursable in accordance therewith.

(k) All amounts payable or to be remitted pursuant to this Agreement shall be paid or remitted or caused to be paid or remitted in immediately available funds by wire transfer to an account or accounts specified in writing by the recipient thereof, including any co-lender or holder of a participation interest in any Note pursuant to a co-lender agreement or participation agreement, as applicable.

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Section 6. Appointment of Operating Advisor.

(a) The Controlling Holder shall have the right at any time to appoint an Operating Advisor for the Mortgage Loan (the “Operating Advisor”). The Controlling Holder shall have the right in its sole discretion at any time and from time to time to remove and replace the Operating Advisor. When exercising its various rights under Section 5 and elsewhere in this Agreement, the Controlling Holder may, at its option, in each case, act through the Operating Advisor. The Operating Advisor may be any Person (other than the Mortgage Loan Borrower or any Affiliate of the Mortgage Loan Borrower), including, without limitation, the Controlling Holder, any officer or employee of the Controlling Holder, any affiliate of the Controlling Holder or any other unrelated third party; provided, that in no event shall the Mortgage Loan Borrower or any Affiliate thereof be appointed the Operating Advisor. No such Operating Advisor shall owe any fiduciary duty or other duty to any other Person (other than the Holder appointing the Operating Advisor). All actions that are permitted to be taken by the Controlling Holder under this Agreement may be taken by the Operating Advisor acting on behalf of the Controlling Holder and the Note A Holder will accept such actions of the Operating Advisor as actions of the Controlling Holder. Neither the Note A Holder (nor any Servicer on its behalf) shall be required to recognize any Person as an Operating Advisor until the Controlling Holder has notified the Note A Holder (and any Servicer or Trustee if Note A is in a Securitization) of such appointment and has provided the Note A Holder (and any Servicer or Trustee if Note A is in a Securitization) with written confirmation of its acceptance of such appointment, an address and telecopy number for the delivery of notices and other correspondence and a list of officers or employees of such person with whom the parties to this Agreement may deal (including their names, titles, work addresses and telecopy numbers). Neither the applicable Servicers nor the Trustee shall be required to recognize any person as an Operating Advisor until they receive such information from the Note A Holder or the Controlling Holder.

(b) Neither the Operating Advisor nor any Holder will have any liability to any other Holder or any other Person for any action taken, or for refraining from the taking of any action or the giving of any consent or the failure to give any consent pursuant to this Agreement or the applicable Servicing Agreement, or for errors in judgment, absent any loss, liability or expense incurred by reason of its willful misconduct or gross negligence or breach of its express obligations under this Agreement. The Holders agree that the Operating Advisor and the Controlling Holder (whether acting in place of the Operating Advisor when no Operating Advisor shall have been appointed hereunder or otherwise exercising any applicable right, power or privilege granted to the Controlling Holder hereunder) may take or refrain from taking actions, or give or refrain from giving consents, that favor the interests of one Holder over the other Holder, and that the Operating Advisor may have special relationships and interests that conflict with the interests of a Holder and, absent willful misconduct or gross negligence or breach of its express obligations under this Agreement on the part of the Operating Advisor or the Controlling Holder, as the case may be, each Holder agrees to take no action against the Operating Advisor or the Controlling Holder or any of their respective officers, directors, employees, principals, affiliates or agents as a result of such special relationships or interests, and that one of the Operating Advisor or the Controlling Holder will be deemed to have been grossly negligent or to have engaged in willful misconduct, or otherwise to have breached this Agreement or incurred any other liability to such Holder by reason of its having acted or

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refrained from acting, or having given any consent or having failed to give any consent, solely in the interests of Note A Holder or any other Junior Noteholder, as applicable.

Section 7. [Reserved]

Section 8. Payment Procedure.

(a) The Holders agree that all payments on the Mortgage Loan shall be made to the Servicer, subject to the terms of this Agreement, and they shall so direct the Mortgage Loan Borrower. The Servicer, subject to the terms of the Servicing Agreement, will deposit or cause to be deposited in the Collection Account all payments received with respect to the Mortgage Loan from any source no later than the next following Business Day after the date each such payment was received by the Note A Holder (or the Servicer acting on their behalf) from the Mortgage Loan Borrower.

(b) If the Note A Holder (or the Servicer acting on their behalf) determine, or a court of competent jurisdiction orders, at any time that any amount received or collected in respect of Notes must, pursuant to any insolvency, bankruptcy, fraudulent conveyance, preference or similar law, be returned to the Mortgage Loan Borrower or paid to a Holder or the Servicer or paid to any other Person, then, notwithstanding any other provision of this Agreement, the Note A Holder (or the Servicer acting on their behalf) shall not be required to distribute any portion thereof to the applicable Holders as otherwise provided in this Agreement, and such Holders will promptly on demand by the Note A Holder (or the Servicer acting on their behalf) repay to the Note A Holder (or the Servicer acting on their behalf) any portion thereof that the Note A Holder (or the Servicer acting on their behalf) shall have theretofore distributed to such Holders together with interest thereon at such rate, if any, as the Note A Holder (or the Servicer acting on their behalf) shall have been required to pay to the Mortgage Loan Borrower or other Person with respect thereto.

(c) If, for any reason, the Note A Holder (or the Servicer acting on their behalf) make any payment to a Junior Noteholder before the Note A Holder (or the Servicer acting on its behalf) have received the corresponding payment (it being understood that the Servicer is not under any obligation to do so), and the Note A Holder (or the Servicer acting on their behalf) do not receive the corresponding payment within three (3) Business Days of its payment to such Junior Noteholder, such Junior Noteholder will, at the Note A Holder’s (or the Servicer’s) request, promptly return that payment to the Note A Holder (or the Servicer acting on its behalf).

(d) Each Holder agrees that if at any time it shall receive from any sources whatsoever any payment on account of the Mortgage Loan in excess of amounts to which it is properly entitled hereunder, it will promptly remit such excess to the Note A Holder (or the Servicer acting on its behalf) for proper distribution in accordance with this Agreement. The Note A Holder (or the Servicer acting on their behalf) shall have the right to offset any amounts due hereunder from such Junior Noteholder with respect to the Mortgage Loan against any future payments due to such Junior Noteholder under the Mortgage Loan. The Holders’ obligations under this Section 6 constitute absolute, unconditional and continuing obligations.

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Section 9. Limitation on Liability of the Holders.

(a) Neither Servicer nor any Holder shall have any liability to any other Holder whatsoever (and each Holder hereby holds each other party harmless from any claims or liability hereafter incurred in connection with the Mortgage Loan), except to the extent of losses actually suffered due to (x) the gross negligence or willful misconduct or breach of its express obligations under this Agreement on the part of the specific party against whom liability is being sought (and, in order to remove any ambiguity, no concepts of agency liability or vicarious liability (or similar avenues of recovery) shall cause any such party to be liable for acts of another) or (y) in the case of Servicer, Servicer’s breach of its obligations under the Servicing Agreement. Each Holder acknowledges and agrees that such Holder shall not have any liability to any other Holder for any acts or omissions of Servicer in connection with the Servicing Agreement, the Mortgage Loan or this Agreement (whether within the scope of its authority or not), except to the extent of losses actually suffered due to the gross negligence or willful misconduct or breach of its express obligations under this Agreement on the part of the responsible Holder in specifically directing Servicer to take the action in question in violation of this Agreement. Each Holder (and Servicer or Trustee) shall have no liability to any other Holder with respect to such other Holder’s Note except with respect to (i) losses actually suffered due to the gross negligence or willful misconduct or breach of its express obligations under this Agreement on the part of the responsible Holder and (ii) for the return of any funds received that are improperly received by the responsible Holder and that are due to another Holder under this Agreement.

(b) Each Junior Noteholder acknowledges that the Note A Holder (including any Servicer and the Trustee) may exercise, or omit to exercise, any rights that the Note A Holder may have under this Agreement and the Servicing Agreement in a manner that may be adverse to the interests of any Junior Noteholder and that the Note A Holder (including any Servicer and the Trustee) shall have no liability whatsoever to such Junior Noteholder in connection with the Note A Holder’ exercise of rights or any omission by the Note A Holder to exercise such rights other than as described above in the case of gross negligence, willful misconduct or breach of this Agreement to the extent provided in the Servicing Agreement. Notwithstanding the foregoing, nothing in this Section 9 shall be construed to contravene any Servicer’s obligations under the Servicing Agreement, including without limitation the obligation to act in accordance with Accepted Servicing Practices.

Section 10. Bankruptcy. The Junior Noteholders hereby covenant and agree that only the Note A Holder (or a Servicer on its behalf), and none of the Junior Noteholders, have the right to institute, file, commence, acquiesce, petition under Bankruptcy Code Section 303 or otherwise or join any Person in any such petition or otherwise invoke or cause any other Person to invoke an Insolvency Proceeding with respect to or against the Mortgage Loan Borrower or seek to appoint a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official with respect to the Mortgage Loan Borrower or all or any part of its property or assets or ordering the winding-up or liquidation of the affairs of the Mortgage Loan Borrower. The Junior Noteholders further agree that only the Note A Holder, and none of the Junior Noteholders, can make any election, give any consent, commence any action or file any motion, claim, obligation, notice or application or take any other action in any case by or against the Mortgage Loan Borrower under the Bankruptcy Code or in any other Insolvency Proceeding. Each Junior

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Noteholder hereby appoints the Note A Holder and the Servicer as its agent, and grants to the Note A Holder and the Servicer an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of exercising any and all rights and taking any and all actions available to such Junior Noteholder in connection with any case by or against the Mortgage Loan Borrower under the Bankruptcy Code or in any other Insolvency Proceeding, including, without limitation, the right to file and/or prosecute any claim, vote to accept or reject a plan, to make any election under Section 1111(b) of the Bankruptcy Code with respect to the Mortgage Loan, and to file a motion to modify, lift or terminate the automatic stay with respect to the Mortgage Loan. Each Junior Noteholder hereby agrees that, upon the request of the Note A Holder (or the Servicer on its behalf), such Junior Noteholder shall execute, acknowledge and deliver to the Note A Holder (or the Servicer on its behalf) all and every such further deeds, conveyances and instruments as the Note A Holder (or the Servicer on its behalf) may reasonably request for the better assuring and evidencing of the foregoing appointment and grant.

Section 11. Cure Rights of the Junior Noteholders.

(a) Subject to Section 11(b) below, in the event that the Mortgage Loan Borrower fails to make any payment of principal or interest on Note A by the end of the applicable grace period set forth in the Mortgage Loan Documents (the “Grace Period”), or if there is no Grace Period, the date due for such payment permitted under the applicable Mortgage Loan Documents (a “Monetary Default”), the Note A Holder (or Servicer on its behalf) shall provide notice to the Junior Noteholders and the Operating Advisor of such default (the “Monetary Default Notice”). The Junior Noteholders shall each have the right, but not the obligation, to cure such Monetary Default within the later of (x) five (5) Business Days after receipt of the Monetary Default Notice and (y) ten (10) Business Days after the expiration of such Grace Period (or if there is no Grace Period, within ten (10) Business Days after the date due) (the “Cure Period”).

(b) Notwithstanding anything to the contrary contained in Section 11(a), (i) the Junior Noteholders’ right to cure a Monetary Default shall be limited to five consecutive months in the aggregate for both Junior Noteholders (such consecutive cures, collectively, a “Cure Event”). In addition, both Junior Noteholders shall be limited to a total of seven Cure Events and/or cures of material Non-Monetary Defaults in the aggregate over the life of the Mortgage Loan. Additional Cure Periods shall only be permitted with the consent of either the Note A Holder or, during a Securitization Period, the Special Servicer with the consent of the “Controlling Class” (or other such term of similar import, as defined in the Pooling and Servicing Agreement) or other similar entity.

(c) No action taken by a Junior Noteholder in accordance with this Agreement shall excuse performance by the Mortgage Loan Borrower of its obligations under the Mortgage Loan Documents and the Mortgage Lender’s rights under the Mortgage Loan Documents against the Mortgage Loan Borrower shall not be waived or prejudiced by virtue of the Junior Noteholders’ actions under this Agreement. Subject to the terms of this Agreement, a Junior Noteholder that makes a cure payment as permitted under this Section 11 shall be subrogated (in respective order of priority) to the more senior Holders’ rights to any payment owing to such more senior Holder for which such Junior Noteholder has made such cure payment; provided, that such subrogation rights may not be exercised against the Mortgage Loan Borrower until ninety-one (91) days after the senior Notes are paid in full.

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(d) At the time a cure payment is made by a Junior Noteholder pursuant to Section 11(a) or other cure is effected pursuant to Section 11(e), the Junior Noteholder effecting such cure shall pay or reimburse the Note A Holder for all unreimbursed Servicing Advances and Advance Interest Amounts, any unpaid fees to the applicable Servicers or the Trustee and any Additional Trust Fund Expenses, in each case relating to the default so cured. So long as a Monetary Default or Non-Monetary Default exists which is not a Continuing Senior Loan Event of Default, such Monetary Default or Non-Monetary Default shall not be treated as an Event of Default by the Note A Holder (including for purposes of (i) the definition of “Sequential Pay Event”, (ii) accelerating the Mortgage Loan, modifying, amending or waiving any provisions of the Mortgage Loan Documents or commencing proceedings for foreclosure or the taking of title by deed-in-lieu of foreclosure or other similar legal proceedings with respect to the Mortgaged Property, or (iii) treating the Mortgage Loan as a Specially Serviced Mortgage Loan), subject to the definition of “Appraisal Reduction Event” herein; provided, that such limitation shall not prevent the Note A Holder from collecting default interest or late charges from the Mortgage Loan Borrower and applying such default interest or late charges in accordance with this Agreement. Any amounts advanced by the Junior Noteholders on behalf of the Mortgage Loan Borrower to effect any cure shall be reimbursable to the Junior Noteholders under Section 3 or Section 4, as applicable. In the event that more than one Junior Noteholder cures a Monetary Default during a Cure Period, the applicable Servicer shall retain the cure payment received from the most Junior Noteholder in accordance with this Section 11 and shall return the cure payments received from more senior Holders. Notwithstanding the foregoing, in the event that a cure payment is tendered by the Mezzanine Lender, the Servicer shall return any cure payments made by a Junior Noteholder.

(e) If an Event of Default (other than a Monetary Default) occurs and is continuing under the Mortgage Loan Documents (a “Non-Monetary Default”), the Note A Holder shall provide notice to the Junior Noteholders and the Operating Advisor of such failure (the “Non-Monetary Default Notice”) and the Junior Noteholders shall have the right, but not the obligation, to cure such Non-Monetary Default within thirty (30) days after the later of (x) the date of receipt of such Non-Monetary Default Notice and (y) the expiration of the applicable Grace Period (or if there is no Grace Period, within thirty (30) days after the occurrence of such Event of Default); provided, however, that if such Non-Monetary Default is susceptible of cure but cannot reasonably be cured within such period and if curative action was promptly commenced and is being diligently pursued by a Junior Noteholder, such Junior Noteholder shall be given an additional period of time as is reasonably necessary to enable such Junior Noteholder in the exercise of due diligence to cure such Non-Monetary Default for so long as (i) such Junior Noteholder diligently and expeditiously proceeds to cure such Non-Monetary Default, (ii) such Junior Noteholder makes all cure payments that it is permitted to make in accordance with the terms and provisions of Section 11(a) hereof or payments in respect of the Mortgage Loan are otherwise made, (iii) such additional period of time does not exceed forty-five (45) days, (iv) such Non-Monetary Default is not an Insolvency Proceeding or, during such period of time that such Junior Noteholder has to cure a Non-Monetary Default in accordance with this Section 11(e) (the “Non-Monetary Default Cure Period”), an Insolvency Proceeding does not occur, and (v) during such Non-Monetary Default Cure Period, there is no material adverse effect on the Mortgage Loan Borrower or the Mortgaged Property or the value of the Mortgage Loan or value of the Mortgaged Property as a result of such Non-Monetary Default or the attempted cure. No Junior Noteholder shall contact the Mortgage Loan Borrower in order to effect any cures under

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this Section 11(e) without the prior written consent of the Note A Holder, not to be unreasonably withheld or delayed, and it is hereby agreed that to the extent such consent of the Note A Holder is required, the applicable time periods (as set forth above) shall not commence until such consent has been granted (or, if applicable, denied) by such Holder.

(f) Notwithstanding anything to the contrary contained herein, in no event shall any Cure Period during a Securitization Period extend beyond the date that is five years prior to any applicable rated final distribution date for any securities issued in any Securitization.

(g) The Servicer shall forward any notice to the Holders that was delivered to the Servicer by a Mezzanine Lender relating to its option to cure any defaults on the Mortgage Loan pursuant to the Intercreditor Agreement.

Section 12. Purchase of the Note A by a Junior Noteholder.

(a) In the event that (A) any payment of principal or interest on the Mortgage Loan becomes sixty (60) or more days delinquent, (B) the Mortgage Loan has been accelerated, (C) the principal balance of the Mortgage Loan is not paid at maturity, (d) an Insolvency Proceeding occurs or (D) the Mortgage Loan shall become a Specially Serviced Mortgage Loan (and an Event of Default shall have occurred and be continuing with respect to the Mortgage Loan), then upon notice from the applicable Servicer (a “Purchase Option Notice”) of such occurrence (which notice the Note A Holder shall promptly direct such Servicer to give to the Holders), the Note C Holder shall have the right (prior to the right of the Note B Holder to exercise the Note B Holder Purchase Option), by written notice to the other Holders (a “Note C Holder Purchase Notice”), to purchase Note A and Note B at the Defaulted Mortgage Loan Purchase Price. Upon the delivery of the Note C Holder Purchase Notice to the Note A Holder and the Note B Holder, each such Holder shall sell (and the Note C Holder shall purchase) such Notes at the Defaulted Mortgage Loan Purchase Price on a date (the “Note C Purchase Option Sale Date”) not less than five (5) Business Days nor more than thirteen (13) Business Days after the date of the Note C Holder Purchase Notice, as shall be mutually established by the Note A Holder, the Note B Holder and the Note C Holder. On the Note C Purchase Option Sale Date, the Note C Holder shall also pay all reasonable out-of-pocket costs and expenses of any of the Note A Holder (and any Servicer or Trustee on its behalf) and the Note B Holder in connection with such purchase. The Defaulted Mortgage Loan Purchase Price shall be calculated by the Note A Holder (or by the applicable Servicer on behalf of the Note A Holder) three (3) Business Days prior to the Note C Purchase Option Sale Date and shall, absent manifest error, be binding upon the Note A Holder, the Note B Holder and the Note C Holder. The right of the Note C Holder to purchase the Notes with respect to a specific Purchase Event (and without prejudice to the Note C Holder’s right to purchase the Mortgaged Property arising from any subsequent Purchase Event) shall terminate upon the earlier of (i) the date when the Mortgaged Property becomes an REO Property and (ii) the purchase of the Mortgage Loan by the Mezzanine Lender pursuant the Intercreditor Agreement. Notwithstanding the foregoing sentence, if title to the Mortgaged Property is transferred to the Note A Holder less than ten (10) days after the acceleration of the Mortgage Loan, the Note C Holder shall have ten (10) days after the acceleration of the Mortgage Loan (or if title is transferred without acceleration of the Mortgage Loan, ten (10) days after title to the Mortgaged Property is transferred) to deliver the Note C Holder Purchase Notice to the other Holders, in which case the Note C Holder will be obligated

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to purchase the Mortgaged Property within such ten (10) day period at the Defaulted Mortgage Loan Purchase Price.

(b) Upon delivery of the Purchase Option Notice, the Note B Holder (on behalf of the Note B Holder) shall have the right (subject to the right of the Note C Holder to exercise the Note C Holder Purchase Option), by written notice to the other Holders (a “Note B Holder Purchase Notice”), given to the Note B Holder of the Purchase Option Notice, to purchase Note A at the Defaulted Mortgage Loan Purchase Price. Upon the delivery of the Note B Purchase Notice to the Note A Holder, the Note A Holder shall sell (and the Note B Holder shall purchase) Note A at the Defaulted Mortgage Loan Purchase Price on a date (the “Note B Purchase Option Sale Date”) not less than five (5) Business Days nor more than thirteen (13) Business Days after the date of the Note B Holder Purchase Notice, as shall be mutually established by the Note A Holder and the Note B Holder. On the Note B Purchase Option Sale Date, the Note B Holder shall also pay all reasonable out-of-pocket costs and expenses of the Note A Holder (and any Servicer or Trustee on its behalf) in connection with such purchase. The Defaulted Mortgage Loan Purchase Price, shall be calculated by the Note A Holder (or by the applicable Servicer on behalf of the Note A Holder) three (3) Business Days prior to the Note B Purchase Option Sale Date and shall, absent manifest error, be binding upon the Note A Holder and the Note B Holder. The right of the Note B Holder to purchase the Notes with respect to a specific Purchase Event (and without prejudice to the Note B Holder’s right to purchase the Mortgaged Property arising from any subsequent Purchase Event) shall terminate upon the earlier of (i) the date when the Mortgaged Property becomes an REO Property and (ii) the purchase of the Mortgage Loan by the Mezzanine Lender pursuant the Intercreditor Agreement. Notwithstanding the foregoing sentence, if title to the Mortgaged Property is transferred to the Note A Holder less than ten (10) days after the acceleration of the Mortgage Loan, the Note B Holder shall have ten (10) days after the acceleration of the Mortgage Loan (or if title is transferred without acceleration of the Mortgage Loan, ten (10) days after title to the Mortgaged Property is transferred) to deliver the Note B Holder Purchase Notice to the other Holders, in which case the Note B Holder will be obligated to purchase the Mortgaged Property within thirteen (13) Business Days thereafter at the Defaulted Mortgage Loan Purchase Price (subject to the rights of the Note C Holder to exercise the Note C Holder Purchase Option).

It is expressly agreed that any exercise of the Note B Holder Purchase Option is subject to the rights of the Note C Holder to exercise the Note C Holder Purchase Option at any time prior to the consummation of the acquisition in accordance with the Note B Holder Purchase Notice.

Section 13. Representations of each Junior Noteholder. Each Junior Noteholder severally represents and warrants with respect to itself only that:

(a) such Junior Noteholder is acquiring its respective Junior Note for its own account in the ordinary course of its business and the Note A Holder shall otherwise have no liability or responsibility to such Junior Noteholder except as expressly provided herein;

(b) the execution, delivery and performance of this Agreement is within its corporate powers, has been duly authorized by all necessary corporate action, and does not contravene such Junior Noteholder’s charter or any law or contractual restriction binding upon

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such Junior Noteholder, in each case which materially and adversely affects its ability to carry out the transactions contemplated by this Agreement, and that this Agreement is the legal, valid and binding obligation of such Junior Noteholder enforceable against such Junior Noteholder in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally, and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and except that the enforcement of rights with respect to indemnification and contribution obligations may be limited by applicable law;

(c) it is duly organized, validly existing, and in good standing and possesses all licenses and authorizations necessary to carry on its business;

(d) (i) this Agreement has been duly executed and delivered by such Junior Noteholder, (ii) to its actual knowledge, all consents, approvals, authorizations, orders or filings of or with any court or governmental agency or body, if any, required for the execution, delivery and performance of this Agreement by such Junior Noteholder have been obtained or made and (iii) to its actual knowledge, there is no pending action, suit or proceeding, arbitration or governmental investigation against such Junior Noteholder, an adverse outcome of which would materially and adversely affect its performance under this Agreement;

(e) it is neither an employee benefit plan as defined in Section 3(3) of ERISA, that is subject to Title I of ERISA, nor a plan as defined in Section 4975(e)(1) of the Code, that is subject to Section 4975 of the Code, nor are any of the assets to be used to make the loan evidenced by such Junior Noteholder’s Note “plan assets” within the meaning of the Department of Labor Regulation Section 2510.3 101, that are subject to Title I of ERISA or Section 4975 of the Code; and

(f) that it is a Qualified Institutional Lender.

Each Junior Noteholder acknowledges that the Note A Holder owes such Junior Noteholders no fiduciary duty with respect to any action taken under the Mortgage Loan Documents and, except as expressly required hereby, need not consult with such Junior Noteholder with respect to any action taken by Note A Holder in connection with the Mortgage Loan.

Each Junior Noteholder expressly and irrevocably waives for itself and any Person claiming through or under such Junior Noteholder any and all rights that it may have under Section 1315 of the New York Real Property Actions and Proceedings Law or the provisions of any similar law which purports to give a junior loan lender the right to initiate any loan enforcement or foreclosure proceedings.

Section 14. Representations of the Initial Note A Holder. Initial Note A Holder represents and warrants that:

(a) it has acquired its Note for its own account in the ordinary course of its business and the Junior Noteholders shall otherwise have no liability or responsibility to the Note A Holder except as expressly provided herein;

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(b) the execution, delivery and performance of this Agreement is within its corporate powers, has been duly authorized by all necessary corporate action, and does not contravene the Initial Note A Holder’s charter or any law or contractual restriction binding upon the Initial Note A Holder, in each case which materially and adversely affects its ability to carry out the transactions contemplated by this Agreement, and that this Agreement is the legal, valid and binding obligation of the Initial Note A Holder enforceable against the Initial Note A Holder in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally, and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and except that the enforcement of rights with respect to indemnification and contribution obligations may be limited by applicable law;

(c) it is a corporation duly organized, validly existing, and in good standing under the laws of the State of Delaware and is in possession of all licenses and authorizations necessary to carry on its business;

(d) (i) this Agreement has been duly executed and delivered by the Initial Note A Holder, (ii) to its actual knowledge, all consents, approvals, authorizations, orders or filings of or with any court or governmental agency or body, if any, required for the execution, delivery and performance of this Agreement by the Initial Note A Holder have been obtained or made and (iii) to its actual knowledge, there is no pending action, suit or proceeding, arbitration or governmental investigation against the Initial Note A Holder, an adverse outcome of which would materially and adversely affect its performance under this Agreement; and

(e) it is neither an employee benefit plan as defined in Section 3(3) of ERISA, that is subject to Title I of ERISA, nor a plan as defined in Section 4975(e)(1) of the Code, that is subject to Section 4975 of the Code, nor are any of the assets to be used to make the Note A Mortgage Loan “plan assets” within the meaning of the Department of Labor Regulation Section 2510.3 101, that are subject to Title I of ERISA or Section 4975 of the Code.

Note A Holder acknowledges that the Junior Noteholders do not owe Note A Holder any fiduciary duty with respect to any action taken under the Mortgage Loan Documents and, except as expressly required hereby, need not consult with Note A Holder with respect to any action taken by any Junior Noteholder in connection with the Mortgage Loan.

Section 15. Independent Analysis of the Junior Noteholders. Each Junior Noteholder, severally with respect to itself only, acknowledges that it has, independently and without reliance upon the Initial Note A Holder, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to purchase the related Junior Notes and each Junior Noteholder accepts responsibility therefor. Each Junior Noteholder hereby acknowledges that, except as set forth in this Agreement, the Note A Holder have made no representations or warranties with respect to the Mortgage Loan, and that the Note A Holder shall have no responsibility for (i) the collectibility of the Mortgage Loan, (ii) the validity, enforceability or legal effect of any of the Mortgage Loan Documents or the title insurance policy or policies or any survey furnished or to be furnished to the Note A Holder in connection with the origination of the Mortgage Loan, (iii) the validity, sufficiency or effectiveness of the

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lien created or to be created by the Mortgage Loan Documents, or (iv) the financial condition of the Mortgage Loan Borrower. Except as expressly provided herein, each Junior Noteholder assumes all risk of loss in connection with the Note it is acquiring hereunder.

Section 16. No Creation of a Partnership or Exclusive Purchase Right. Nothing contained in this Agreement, and no action taken pursuant hereto shall be deemed to constitute the relationship created hereby between the Holders, or among any of them, as a partnership, association, joint venture or other entity. The Note A Holder shall have no obligation whatsoever to offer to the Junior Noteholders the opportunity to purchase an interest in any future loans originated by any of the Note A Holder or any of their Affiliates and if the Note A Holder chooses to offer to Junior Noteholders the opportunity to purchase an interest in any future mortgage loans originated by the Note A Holder or its Affiliates, such offer shall be at such purchase price and interest rate as the Note A Holder chooses, in its sole and absolute discretion. The Junior Noteholders shall have no obligation whatsoever to purchase from the Note A Holder an interest in any future loans originated by the Note A Holder or their Affiliates.

Section 17. Not a Security. The Notes shall not be deemed to be securities within the meaning of the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended.

Section 18. Other Business Activities of the Holders. Each Holder acknowledges that any of the other Holders or its Affiliates may make loans or otherwise extend credit to, and generally engage in any kind of business with, any Affiliate of the Mortgage Loan Borrower, any entity that is a holder of debt secured by direct or indirect ownership interests in the Mortgage Loan Borrower or any entity that is a holder of a preferred equity interest in the Mortgage Loan Borrower (each, a “Mortgage Loan Borrower Related Party”), and receive payments on such other loans or extensions of credit to Mortgage Loan Borrower Related Parties and otherwise act with respect thereto freely and without accountability in the same manner as if this Agreement and the transactions contemplated hereby were not in effect.

Section 19. Sale of the Notes.

(a) Except as otherwise permitted under Section 19(d), each Junior Noteholder agrees that it will not sell, assign, transfer, pledge, syndicate, participate, hypothecate, contribute, encumber or otherwise dispose of (a “Transfer”) more than 49% (when aggregated with all prior Transfers that do not comply with the immediately succeeding clauses (i)-(iii) of its beneficial or ownership interest in its Junior Note) unless (i) the Transfer is to a Qualified Institutional Lender, (ii) if such Transfer is not to be made during a Securitization Period, Junior Noteholder receives the prior written consent of Note A Holder, which consent shall not be unreasonably withheld, conditioned or delayed or (iii) if such Transfer is to be made during a Securitization Period, Junior Noteholder receives a Rating Agency Confirmation (which Rating Agency Confirmation Note A Holder agrees to use its commercially reasonable efforts to obtain at such Junior Noteholder’s sole cost and expense), in which case the related transferee shall thereafter be deemed to be a “Qualified Institutional Lender” for all purposes of this Agreement. In the case of a Transfer to a Qualified Institutional Lender, within five (5) days after the Transfer, Note A Holder shall be provided with (x) a representation from such transferee certifying that such transferee is a Qualified Institutional Lender and is not Mortgage Loan Borrower, an Affiliate of

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Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, and (y) a copy of the assignment and assumption agreement referred to in Section 20. Junior Noteholders shall not, without Note A Holder’s prior consent, which may be withheld in Note A Holder’s sole discretion or, during a Securitization Period, without the receipt of Rating Agency Confirmation, Transfer all or any portion of its Junior Note (A) to Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party or (B) to an Embargoed Person and no Embargoed Person shall have any interest of any nature whatsoever in a Junior Noteholder with the result that Junior Noteholder, or the Mortgage Loan, is or would be in violation of law, and any such Transfer shall be absolutely null and void and shall vest no rights in the purported transferee. The transferring Junior Noteholder agrees it will pay the reasonable and customary expenses (including reasonable attorneys’ fees and disbursements) of Note A Holder (including all reasonable and customary expenses of Servicer and any Trustee) relating to the receipt of Rating Agency Confirmation in connection with any such Transfer. Prior to the date that Note A is included in a Securitization, a Junior Noteholder may only transfer all or any portion of any Junior Note to a REMIC if the Servicer or an Affiliate thereof continues to act as Servicer of the Mortgage Loan.

(b) All Transfers pursuant to Section 19(a) shall be made upon at least three (3) Business Days’ prior written notice to Note A Holder, and each transferee (but not a participant under a participation agreement as described in Section 19(c) or a loan pledgee pursuant to Section 19(d)) shall (i) execute an assignment and assumption agreement as required by Section 20 and (ii) agree in writing to be bound by the applicable Servicing Agreement. Upon the consummation of a Transfer of all or any portion of a Junior Note in accordance with this Agreement, the transferring Holder shall be released from all liability arising under this Agreement with respect to such Junior Note (or the portion thereof that was the subject of such Transfer), for the period after the effective date of such Transfer (it being understood and agreed that the foregoing release shall not apply in the case of a sale, assignment, transfer or other disposition of a participation interest in a Junior Note as described in clause (d) below). In connection with any such permitted transfer of a portion of a Junior Note and for all purposes of this Agreement, the Note A Holder need only recognize the majority holder of or agent with respect to such Note for purposes of notices, consents and other communications between the Note A Holder and such majority holder of such Junior Note shall be the only Person authorized hereunder to exercise any rights of the Junior Noteholder of such Junior Note under this Agreement; provided, however, that in the event a Junior Note is held in equal portions by two or more Persons, the Note A Holder shall recognize all holders of such Junior Note on a collective basis as such authorized Person; provided, further, however, that the majority holder or the collective holder of equal portions, as applicable, of such Junior Note may designate any other Person as the party entitled to receive notices, consents and other communications and/or to exercise rights on behalf of such party or parties, as applicable, hereunder by delivering written notice thereof to the Note A Holder, and, from and after delivery of such notice, such designee shall be so authorized hereunder and shall be the only party entitled to receive such notices, consents and such other communications and/or to exercise such rights. The Note A Holder shall notify each of the other Holders of any Transfer of any of the Notes from time to time, and shall deliver to each other Holder the name and contact information of each Holder and each designated agent or Operating Advisor.

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(c) In the case of any Transfer of a participation interest in any Junior Note, (i) the related Junior Noteholder’s obligations under this Agreement shall remain unchanged, (ii) the related Junior Noteholder shall remain solely responsible for the performance of such obligations, (iii) all amounts payable hereunder shall be determined as if the related Junior Noteholder had not sold such participation interest, and (iv) the Note A Holder and any Persons acting on its behalf shall continue to deal solely and directly with the related Junior Noteholder in connection with such Holder’s rights and obligations under this Agreement and the Servicing Agreement; provided, however, that if the applicable participant is a Qualified Institutional Lender (and delivers to the Note A Holder a certification from an authorized officer confirming its status as a Qualified Institutional Lender), the related Junior Noteholder, by written notice to the Note A Holder, may delegate to such participant the Junior Noteholder’s right to exercise the rights of the Controlling Holder hereunder and under the applicable Servicing Agreement; provided, further, however, that upon the occurrence of a Control Appraisal Period with respect to a Junior Noteholder, the aforesaid delegation of rights shall terminate and be of no further force and effect.

(d) The Note A Holder shall have the right to transfer (including without limitation by transfer of one or more participation interests) without the prior consent of any other Holder, the Servicer, or any other Person (i) in an aggregate of up to 49% of the principal balance of the Note A to any other Person and (ii) its entire Note A, or any portion thereof, to an Affiliate or a Qualified Institutional Lender; provided, that the Servicer is given written notice of such transfer; provided, further, that such transfer is subject to the terms of this Agreement and, following any such transfer, the Mortgage Loan continues to be serviced in its entirety pursuant to this Agreement and the applicable Servicing Agreement by a Servicer unaffiliated with the Mortgage Loan Borrower.

(e) Notwithstanding any other provision hereof, any Holder may pledge (a “Pledge”) its Note to any entity (other than the Mortgage Loan Borrower or any Affiliate thereof) which has extended a credit facility to or entered into a repurchase arrangement with such Holder and that is either a Qualified Institutional Lender or a financial institution whose long-term unsecured debt is rated at least “A” (or the equivalent) or better by each Rating Agency (a “Note Pledgee”), on terms and conditions set forth in this Section 19(e), it being further agreed that a financing provided by a Note Pledgee to a Holder or any person which Controls such Holder that is secured by such Holder’s interest in the applicable Note and is structured as a repurchase arrangement, shall qualify as a “Pledge” hereunder; provided, that, if Note A is included in a Securitization Trust, a Note Pledgee which is not a Qualified Institutional Lender may not take title to the pledged Note without the approval of (x) if no Securitization Period is in effect, Note A Holder, which approval shall not be unreasonably withheld, conditioned or delayed, or (y) during a Securitization Period, receipt of a Rating Agency Confirmation. Upon written notice by the applicable Holder to the other Holders and the applicable Servicer that a Pledge has been effected (including the name and address of the applicable Note Pledgee), each of the other Holders agrees to acknowledge receipt of such notice and thereafter agrees: (i) to give such Note Pledgee written notice of any default by the pledging Holder in respect of its obligations under this Agreement of which default such Holder has actual knowledge; (ii) to allow such Note Pledgee a period of ten (10) days to cure a default by the pledging Holder in respect of its obligations to the other Holders hereunder, but such Note Pledgee shall not be obligated to cure any such default; (iii) that no amendment, modification,

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waiver or termination of this Agreement shall be effective against such Note Pledgee without the written consent of such Note Pledgee, which consent shall not be unreasonably withheld, conditioned or delayed; (iv) that such other Holders shall give to such Note Pledgee copies of any notice of default under this Agreement simultaneously with the giving of same to the pledging Holder and accept any cure thereof by such Note Pledgee which such pledging Holder has the right to effect hereunder, as if such cure were made by such pledging Holder; (v) that such other Holders shall deliver to Note Pledgee such estoppel certificate(s) as such Note Pledgee shall reasonably request; provided, that any such certificate(s) shall be in a form reasonably satisfactory to such other Holders; and (vi) that, upon written notice (a “Redirection Notice”) to the other Holders and the applicable Servicer by such Note Pledgee that the pledging Holder is in default, beyond any applicable cure periods under the pledging Holder’s obligations to such Note Pledgee pursuant to the applicable credit agreement between the pledging Holder and such Note Pledgee (which notice need not be joined in or confirmed by the pledging Holder), and until such Redirection Notice is withdrawn or rescinded by such Note Pledgee, such Note Pledgee shall be entitled to receive any payments that the Note A Holder or such Servicer would otherwise be obligated to pay to the pledging Holder from time to time pursuant to this Agreement or the applicable Servicing Agreement.

Any pledging Holder hereby unconditionally and absolutely releases the other Holders and the applicable Servicer from any liability to the pledging Holder on account of any Holders’ or any such Servicer’s compliance with any Redirection Notice believed by any such Servicer or any such other Holders to have been delivered by a Note Pledgee. Any Note Pledgee shall be permitted to exercise fully its rights and remedies against the pledging Holder to such Note Pledgee (and accept an assignment in lieu of foreclosure as to such collateral), in accordance with applicable law and this Agreement. In such event, the Holders and the applicable Servicer shall recognize such Note Pledgee (and any transferee (other than the Mortgage Loan Borrower or any affiliate thereof) which is also a Qualified Institutional Lender at any foreclosure or similar sale held by such Note Pledgee or any transfer in lieu of foreclosure), and its successor and permitted assigns hereunder, as the successor to the pledging Holder’s rights, remedies and obligations under this Agreement, and any such Note Pledgee or Qualified Institutional Lender shall assume in writing the obligations of the pledging Holder hereunder accruing from and after such Transfer (i.e., realization upon the collateral by such Note Pledgee) and agree to be bound by the terms and provisions of this Agreement. The rights of a Note Pledgee under this Section 19(f) shall remain effective as to any Holder (and the applicable Servicer) unless and until such Note Pledgee shall have notified such Holder (and the applicable Servicer) in writing that its interest in the pledged Note has terminated.

(f) Notwithstanding any provisions herein to the contrary, if a conduit (“Conduit”) which is not a Qualified Institutional Lender provides financing to a Holder, then such Holder shall have the right to grant a security interest in its Note to such Conduit notwithstanding that such Conduit is not a Qualified Institutional Lender, if the following conditions are satisfied:

(i) The loan (the “Conduit Inventory Loan”) made by the Conduit to such Holder to finance the acquisition and holding of its Note will require a third party (the “Conduit Credit Enhancer”) to provide credit enhancement;

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(ii) The Conduit Credit Enhancer will be a Qualified Institutional Lender;

(iii) Such Holder will pledge its interest in the applicable Note to the Conduit as collateral for the Conduit Inventory Loan;

(iv) The Conduit Credit Enhancer and the Conduit agree that, if such Holder defaults under the Conduit Inventory Loan, or if the Conduit is unable to refinance its outstanding commercial paper even if there is no default by such Holder, the Conduit Credit Enhancer will purchase the Conduit Inventory Loan from the Conduit, and the Conduit will assign the pledge of such Holder’s Note to the Conduit Credit Enhancer; and

(v) Unless the Conduit is in fact then a Qualified Institutional Lender, the Conduit will not without (x) if no Securitization Period is in effect, the approval of Note A Holder, which approval shall not be unreasonably withheld, conditioned or delayed, or (y) during a Securitization Period, receipt of a Rating Agency Confirmation, have any greater right to acquire the interests in the Note pledged by such Holder, by foreclosure or otherwise, than would any other purchaser that is not a Qualified Institutional Lender at a foreclosure sale conducted by a Note Pledgee.

Section 20. Assumption Agreement. In connection with any transfer of a Note, a transferee shall execute an assignment and assumption agreement whereby such transferee (other than a participant or Note Pledgee) assumes from and after the date of such transfer all of the obligations of the applicable Holder hereunder with respect to such Note and agrees to be bound by the terms of this Agreement, including the restriction on transfers set forth in Section 19, from and after the date of such assignment and including the requirement to make the representations and warranties set forth in Sections 13 or 14, as applicable to such Holder, and Section 31(c), as well as a representation and warranty that such Holder is not the Mortgage Loan Borrower or an Affiliate of the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party; provided, that in the event of a transfer of Note A to a Securitization, such assumption may be affected by the inclusion of a provision in the Pooling and Servicing Agreement requiring the Servicer to service the Mortgage Loan in accordance with this Agreement. Each Holder desiring to effect any such transfer shall, and does hereby agree to, indemnify each other Holder against any liability that may result if the transfer is not made in accordance with the provisions of this Agreement.

Section 21. Replacement Notes

(a) Any Holder may at any time cause its Note to be split and reissued in the name of the same Holder as two or more replacement notes (each, a “Replacement Note” and, collectively, the “Replacement Notes”) that have an aggregate principal balance equal to that of such replaced Note on the date of reissuance and entitle the respective holders thereof to the same aggregate rights as the subject Holder. The Mortgage Lender shall exercise its rights under Sections 8.2(c), 9.1 or 9.7 of the Mortgage Loan Agreement to require the Mortgage Loan Borrower to cooperate with such split, reissuance and replacement. If Replacement Notes are issued with respect to any Note, then such Replacement Notes may have different amortization terms, different principal balances, different payment priorities and different interest rates; provided that, unless all of the Holders otherwise agree in writing, (i) such Replacement Notes

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must not in the aggregate provide for more than the same total payments over time or on any particular Payment Date as such original Note, (ii) the weighted average interest rate for such Replacement Notes at any time (without regard to the default rate of interest) may not exceed the Applicable Interest Rate that would have then been in effect with respect to such original Note, and (iii) the terms and provisions of such Replacement Notes shall otherwise comply with the terms and conditions of the Mortgage Loan Agreement. All costs and expenses incurred in connection with the issuance of the Replacement Notes shall be borne solely by the Holder causing its Note to be split into Replacement Notes.

(b) If any Replacement Notes are issued with respect to any Note, then (unless 100% of the holders thereof provide contrary written instructions to the Servicer): (i) any and all payments, collections, costs, expenses, losses, liabilities or other amounts allocated to the replaced Note or the related Holder pursuant to any other provisions of this Agreement shall, in turn, be allocated to the subject Replacement Notes and the respective holders thereof or the respective debt obligations evidenced thereby, as the case may be, on a pro rata basis in accordance with the respective unpaid principal balances of the subject Replacement Notes; (ii) any matters having a negative economic effect with respect to the holders of the subject Replacement Notes shall be addressed such that each such holder shall bear a pro rata share of such negative economic effect based upon the unpaid principal balance of its Replacement Note relative to the aggregate unpaid principal balance of such Replacement Notes; (iii) any and all consent, approval, direction or other voting rights of the related Holder shall be allocated among the respective holders of the subject Replacement Notes on a pro rata basis in accordance with the respective unpaid principal balances of the subject Replacement Notes; provided that with respect to the holders of any Replacement Notes that constitute the Controlling Holder, such holders shall designate one such holder to exercise the rights of, and take all actions on behalf of the Controlling Holder under this Agreement; and (iv) each such Replacement Note will be deemed a Note (such Replacement Notes collectively replacing the related split Note) and the holder of each such Replacement Note will be deemed a Holder (such holders collectively replacing the Holder with respect to the related split Note). However, 100% of the holders of the Replacement Notes issued with respect to any Note may, pursuant to a separate written agreement among themselves and written instructions to the Servicer and the other Holders, provide for alternative allocations to those set forth in the preceding sentence, provided that no such alternative allocation may decrease payments with respect to any other Note without the consent of the related Holder for such other Note; and provided, further, that the subject Replacement noteholders and the other Holders shall enter into such amendments to this Agreement as are consistent with Section 25 to reflect such alternative allocations.

(c) Notwithstanding anything to the contrary in the immediately preceding subsections (a) and (b), the issuance of Replacement Notes shall in no event change the relative rights, liabilities and other obligations of the holders of such Replacement Notes in the aggregate, on the one hand, and the other Holders in the aggregate, on the other hand. If Replacement Notes are issued with respect to any Note, and if the related Holder had any affirmative obligations hereunder (other than the payment of money, which will be allocated among the respective holders of such Replacement Notes in accordance with the immediately preceding subsection (b)), then such obligations shall apply to each and every holder of such Replacement Notes. If Replacement Notes are issued with respect to any Note, then any

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prohibitions herein with respect to the related Holder shall apply to each and every holder of such Replacement Notes

Section 22. No Pledge. This Agreement shall not be deemed to represent a pledge of any interest in the Mortgage Loan by the Note A Holder to any Junior Noteholder or by any Junior Noteholder to the Note A Holder.

Section 23. Governing Law; Waiver of Jury Trial. THIS AGREEMENT AND THE RESPECTIVE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE. EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT.

Section 24. Submission To Jurisdiction; Waivers. Each party hereto hereby irrevocably and unconditionally:

(a) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT, OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK, THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, AND APPELLATE COURTS FROM ANY THEREOF;

(b) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN SUCH COURTS AND, TO THE EXTENT PERMITTED BY LAW, WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME;

(c) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO ITS ADDRESS SET FORTH HEREIN OR AT SUCH OTHER ADDRESS OF WHICH A PARTY HEREIN SHALL HAVE BEEN NOTIFIED; AND

(d) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT TO SUE IN ANY OTHER JURISDICTION.

Section 25. Modifications. This Agreement shall not be modified, cancelled or terminated except by an instrument in writing signed by the parties hereto (other than as set forth in Section 5(b)) and by the applicable Servicer and Trustee to the extent required by Section 26.

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Additionally, during a Securitization Period, the Holders shall not amend or modify this Agreement without first receiving Rating Agency Confirmation from each Rating Agency then rating the securities issued in connection with a Securitization.

Section 26. Successors and Assigns; Third Party Beneficiaries.

(a) This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and permitted assigns. Except as provided herein, none of the provisions of this Agreement shall be for the benefit of or enforceable by any Person not a party hereto; provided, that neither Servicer nor the Trustee shall be bound by any amendments to this Agreement that have a material adverse effect on such Servicer or Trustee without its prior written consent, which shall not be unreasonably withheld, conditioned or delayed. Subject to Section 19, each Holder may assign or delegate its rights or obligations under this Agreement. Upon any such assignment, the assignee shall be entitled to all rights and benefits of the Note A Holder or the Junior Noteholders, as applicable, hereunder, including, without limitation, the right to make further assignments as permitted by Section 19.

(b) In the event that all amounts owing to the Note A Holder under the Note A and this Agreement are satisfied in full, then the Note B Holder and Note B shall be deemed to succeed to all of the rights, obligations, privileges, preferences and restrictions applicable to the “Note A Holder” and “Note A” in this Agreement. In the event that all amounts owing to the Note B Holder under the Note B and this Agreement are satisified in full, then the Note C Holders and Note C shall be deemed to succeed to all of the rights, obligations, privileges, preferences and restrictions applicable to the “Note A Holder” and “Note A” in this Agreement.

Section 27. Counterparts. This Agreement may be executed in any number of counterparts and all of such counterparts shall together constitute one and the same instrument.

Section 28. Captions. The titles and headings of the paragraphs of this Agreement have been inserted for convenience of reference only and are not intended to summarize or otherwise describe the subject matter of the paragraphs and shall not be given any consideration in the construction of this Agreement.

Section 29. Severability. Wherever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable laws, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.

Section 30. Entire Agreement. This Agreement constitutes the entire agreement among the parties hereto with respect to the subject matter contained in this Agreement and supersedes all prior agreements, understandings and negotiations between the parties.

Section 31. Withholding Taxes.

(a) If the Note A Holder, or the Servicer, or the Mortgage Loan Borrower shall be required by law to deduct and withhold Taxes from interest, fees or other amounts payable to any Holder with respect to the Mortgage Loan as a result of such Holder constituting

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a Non-Exempt Person, the Note A Holder, or such Servicer, shall be entitled to do so with respect to such Holder’s interest in such payment (all withheld amounts being deemed paid to such Holder), provided that the Note A Holder, or such Servicer shall furnish such Holder with a statement setting forth the amount of Taxes withheld, the applicable rate and other information which may reasonably be requested for purposes of assisting such Holder to seek any allowable credits or deductions for the Taxes so withheld in each jurisdiction in which such Holder is subject to tax.

(b) Each Holder shall and hereby agrees to indemnify the Note A Holder and the Servicer against and hold the Note A Holder and the Servicer harmless from and against any Taxes, interest, penalties and reasonable attorneys’ fees and disbursements arising or resulting from any failure of the Note A Holder or such Servicer to withhold Taxes from payment made to any such Holder in reliance upon any representation, certificate, statement, document or instrument made or provided by such Holder to the Note A Holder or any such Servicer in connection with the obligation of the Note A Holder or any such Servicer to withhold Taxes from payments made to such Holder, it being expressly understood and agreed that (i) the Note A Holder and such Servicer shall be absolutely and unconditionally entitled to accept any such representation, certificate, statement, document or instrument as being true and correct in all respects and to fully rely thereon without any obligation or responsibility to investigate or to make any inquiries with respect to the accuracy, veracity, correctness or validity of the same and (ii) each Holder shall, upon request of the Note A Holder or any such Servicer and at its sole cost and expense, defend any claim or action relating to the foregoing indemnification using counsel selected by the Note A Holder or any such Servicer.

(c) If any Holder is a U.S. Person, it shall furnish to the Note A Holder or Servicer, as applicable, an Internal Revenue Service Form W-9. If any Holder is not (i) a citizen or resident of the United States, (ii) a corporation or partnership (except to the extent provided in applicable Treasury Regulations) created or organized in or under the laws of the United States, any state thereof or the District of Columbia, including any entity treated as a corporation or partnership for U.S. federal income tax purposes, (iii) an estate whose income is subject to United States federal income tax regardless of its source, or (iv) a trust if a court within the United States is able to exercise primary supervision over the administration of such trust, and one or more such United States persons as defined in Section 7701(a)(30) of the Code have the authority to control all substantial decisions of such trust (or, to the extent provided in applicable Treasury Regulations, a trust in existence on August 20, 1996 which has a valid election in effect to be treated as a United States person as defined in Section 7701(a)(30) of the Code) (each, a “Non-U.S. Entity”), such Holder agrees that, prior to the first date on which any payment is due such entity hereunder, it will deliver to the Note A Holder or Servicer, as applicable, two duly completed copies of United States Internal Revenue Service Form W-8BEN, W-8ECI or W-8IMY (with appropriate attachments) or successor applicable form, as the case may be, certifying in each case that such entity is entitled to receive payments under its Note, without deduction or withholding of any United States federal income taxes. Each entity required to deliver to the Note A Holder or Servicer, as applicable, a Form W-8BEN, W-8ECI or W-8IMY (with appropriate attachments) pursuant to the preceding sentence further undertakes to deliver to the Note A Holder or Servicer, as applicable, two further copies of such forms, or successor applicable forms, or other manner of certification, as the case may be, on or before the date that any such form expires (which, in the case of the Form W-8ECI, is the last day of each U.S.

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taxable year of the Non-U.S. Entity) or becomes obsolete or after the occurrence of any event requiring a change in the most recent form previously delivered by it to the Note A Holder or Servicer, as applicable, and such other extensions or renewals thereof as may reasonably be requested by the Note A Holder or Servicer, as applicable, certifying in the case of a Form W-8BEN, W-8ECI or W-8IMY that such entity (or, in the case of W-8IMY, either such entity, if such entity is a “qualified intermediary” or “withholding foreign partnership”, or the person or persons for whom such entity is acting if the entity is a “non-qualified intermediary”) is entitled to receive payments under its Note without deduction or withholding of any United States federal income taxes, unless in any such case an event (including, without limitation, any change in treaty, law or regulation) has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such entity from duly completing and delivering any such form with respect to it and such entity advises the Note A Holder or Servicer, as applicable, that it is not capable of receiving payments without any deduction or withholding of United States federal income tax.

Section 32. Custody of Mortgage Loan Documents. The originals of all of the Mortgage Loan Documents (other than Note A, Note B and Note C, which in each case shall be held by the applicable Holders) will be held, (A) prior to a Securitization, by [ORIGINATOR] (or such other financial institution selected by the Note A Holder with due care), or its agent, custodian or trustee, on behalf of the registered Holders of the Notes and (B) after a Securitization, by the Securitization Trust.

Section 33. Cooperation by the Junior Noteholders. The Junior Noteholders acknowledge that Note A Holder may elect, in its sole discretion, to include Note A in (i) a Securitization, (ii) a syndication or (iii) any other disposition of Note A (each of (i), (ii) and (iii), a “Note A Disposition”). In connection with a Note A Disposition and at the request of Note A Holder, the Junior Noteholders shall use their reasonable efforts at the sole expense of Note A Holder and otherwise without liability to, or increased obligations of, Junior Noteholders, (A) reasonably to cooperate with Note A Holder in Note A Holder’s attempting to cause Mortgage Loan Borrower to satisfy the market standards to which Note A Holder customarily adheres or which may be reasonably required in the marketplace in connection with such Note A Disposition (or reasonably required by the Rating Agencies in connection with a Securitization), including, entering into (or consenting to, as applicable) any modifications to this Agreement or the Mortgage Loan Documents and at the sole expense of Note A Holder and otherwise without liability to, or increased obligations of, Junior Noteholders and (B) reasonably to cooperate with Note A Holder in Note A Holder’s attempting to cause Mortgage Loan Borrower to execute such modifications to the Mortgage Loan Documents, in any such case (but subject to the foregoing), as may be reasonably required by Note A Holder or the Rating Agencies to effect such Note A Disposition; provided, however, that Junior Noteholders shall not be required to modify or amend this Agreement or the Mortgage Loan Documents (or consent to such modification, as applicable) in connection therewith, if such modification or amendment would (i) change the interest allocable to, or the amount or timing (other than changes in the Monthly Payment Date) of any payments due to, Junior Noteholders, (ii) materially increase Junior Noteholders’ obligations or materially decrease Junior Noteholders’ rights, remedies or protections under this Agreement or the Mortgage Loan Documents, as applicable, or (iii) impair the value, use or operation of the Mortgaged Property or the priority of Mortgage Lender’s lien thereon or the cash flow from the Mortgaged Property; provided further that Note A Holder shall pay all

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reasonable out-of-pocket costs and expenses of Junior Noteholders (including reasonable attorney’s fees and disbursements) in connection with such Note A Disposition.

(b) In connection with a Securitization of Note A, Junior Noteholders agree to provide for inclusion in any disclosure document relating to the related Securitization such customary, non-confidential information concerning itself and Junior Notes as Note A Holder reasonably determines to be necessary or appropriate; provided that Junior Noteholders shall not be required to provide any information as to the identity or characteristics of the limited partners in its investing funds. Junior Noteholders covenant and agree that it shall each cooperate (at the requesting Note A Holder’s expense, including reimbursement of Junior Noteholders’ reasonable attorneys’ fees and expenses) with the reasonable requests of each Rating Agency and Note A Holder in connection with the Securitization, as well as in connection with all other matters and the preparation of any offering documents thereof and to review and respond reasonably promptly with respect to any information relating to Junior Noteholders and Junior Notes in any Securitization document. Junior Noteholders acknowledge that the information provided by it to Note A Holder in writing and designated for such purpose may be incorporated into the offering documents for a Securitization. Note A Holder and each Rating Agency shall be entitled to rely on the information supplied by, or on behalf of, Junior Noteholders.

Section 34. Notices. All notices required hereunder shall be given by (i) telephone (confirmed promptly in writing) or shall be in writing and personally delivered, (ii) sent by facsimile transmission (during business hours) if the sender on the same day sends a confirming copy of such notice by reputable overnight delivery service (charges prepaid), (iii) reputable overnight delivery service (charges prepaid) or (iv) certified United States mail, postage prepaid, return receipt requested, and addressed to the respective parties at their addresses set forth on Exhibit B hereto, or at such other address as any party shall hereafter inform the other party by written notice given as aforesaid. All written notices so given shall be deemed effective upon receipt.

Section 35. Broker. Each Holder represents to the other Holders that it has not used or engaged the services of a broker in connection with this transaction and agrees to indemnify and hold harmless each other Holder against any claim of any broker claiming by, through or under such Holder.

Section 36. Note A-1, Note A-2 and Note A-3. Until such time as the Note A-1,

Note A-2 and Note A-3 enter into a formal agreement otherwise in writing, for purposes of giving any directions, approvals or consents hereunder, the Holder of Note A-1 shall act as “Note A Holder” hereunder. Notwithstanding the foregoing, the party so designated by the Note A Holder shall at all times be a U.S. Person.

Section 37. Note B-1 and Note B-2. For purposes of giving any directions, approvals or consents hereunder, the Holder of Note B-1 shall act as “Note B Holder” hereunder (including with respect to any rights the Note B Holder may have in its capacity as Controlling Holder).

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[SIGNATURE PAGE FOLLOWS]

A-1

IN WITNESS WHEREOF, the Holders have caused this Agreement to be duly executed as of the day and year first above written.

[A HOLDER], as Initial Note A Holder

By: ____________________________________ Name: Title:

[B HOLDER], as Initial Note B Holder

By:____________________________________ Name: Title:

[C HOLDER], as Initial Note C Holder

By:____________________________________ Name: Title:

-

EXHIBIT A

NOTE SCHEDULE

A. Description of Mortgage Loan

Mortgage Loan Borrower:

Date of the Mortgage Loan, the Mortgage and the Notes:

July 1, 2008

Initial Aggregate Principal Amount of the Mortgage Loan:

Location of the Mortgaged Property: As described in the Mortgage Loan Documents

Initial Maturity Date:

Reserves Held for the Mortgage Loan: As provided in the Mortgage Loan Documents

-

B. Description of Notes

Note A-1 Origination Date:

Initial Note A-1 Principal Balance:

Initial Note A-1 Percentage Interest:

Note A-1 Net Rate:




Note A-2 Net Rate:




Note A-3 Net Rate:

Note B-1 Origination Date:

Initial Note B-1 Principal Balance:

Initial Note B-1 Percentage Interest:

Note B-1 Net Rate:

Note B-2 Origination Date:

Initial Note B-2 Principal Balance:

Initial Note B-2 Percentage Interest:

Note B-2 Net Rate:

-

Note C Origination Date:

Initial Note C Principal Balance:

Initial Note C Percentage Interest:

Note C Net Rate:

C-1

EXHIBIT B

Note A Holder:

Notice Address: B Note Holder:

Notice Address: C Note Holder:

Notice Address:

-

EXHIBIT C

MORTGAGE LOAN DOCUMENTS

LOAN DOCUMENTS

Promissory Note A-1

Promissory Note A-2

Promissory Note A-3

Promissory Note B-1

Promissory Note B-2

Promissory Note C

Loan Agreement

Mortgage, Assignment of Leases and Rents, and Security Agreement

Assignment of Leases and Rents

Guaranty of Recourse Obligations of Borrower

Additional Guaranty of Recourse Obligations of Borrower

Environmental Indemnity Agreement

Conditional Assignment of Management Agreement

Assignment of Interest Rate Cap Agreement and Security Agreement

Restricted Account Agreement (Hard Lockbox)

Title Escrow Instructions Letter

UCC-1 Financing Statements

Post Closing Letter

-

EXHIBIT D

PERMITTED FUND MANAGERS

C-1

EXHIBIT E

-

EXHIBIT F

[INITIAL SERVICING AGREEMENT]

Ocean Resorts

CURRENT 8190681v3

GUARANTY (Mezzanine Loan)

THIS GUARANTY (“Guaranty”) is executed as of January 4, 2006, by CHARLES A. BRAY and JOSEPH G. GILLESPIE (hereinafter collectively referred to as “Guarantor”), for the benefit of WACHOVIA BANK, NATIONAL ASSOCIATION (“Lender”).

A. BRAY & GILLESPIE HOLDINGS, LLC, a Delaware limited liability company (“Borrower”) is indebted to Lender with respect to a loan (“Loan”) pursuant to that certain promissory note dated of even date herewith, payable to the order of Lender in the original principal amount of FIFTEEN MILLION AND No/100 DOLLARS ($15,000,000.00) (together with all renewals, modifications, increases and extensions thereof, the “Note”), which is secured by the liens and security interests created by that certain Loan and Security Agreement (the “Security Instrument”), between Lender and Borrower, dated of even date herewith and further evidenced, secured or governed by the other Loan Documents (as defined in the Security Instrument); and

B. Lender is not willing to make the Loan, or otherwise extend credit, to Borrower unless Guarantor unconditionally guarantees payment and performance to Lender of the Guaranteed Obligations (as hereinafter defined); and

C. Guarantor is the owner of a direct or indirect interest in Borrower, and Guarantor will directly benefit from Lender’s making the Loan to Borrower.

NOW, THEREFORE, as an inducement to Lender to make the Loan to Borrower thereunder, and to extend such additional credit as Lender may from time to time agree to extend under the Loan Documents, and for other good and valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged, the parties do hereby agree as follows:

ARTICLE I NATURE AND SCOPE OF GUARANTY

Section 1.1 GUARANTY OF OBLIGATION. Guarantor hereby absolutely, irrevocably and unconditionally guarantees to Lender (and its successors and assigns), jointly and severally, the payment and performance of the Guaranteed Obligations as and when the same shall be due and payable, whether upon demand by Lender or by lapse of time, by acceleration of maturity or otherwise. Guarantor hereby absolutely, irrevocably and unconditionally covenants and agrees that it is liable, jointly and severally, for the Guaranteed Obligations as a primary obligor, and that each Guarantor shall fully perform, jointly and severally, each and every term and provision hereof.

Section 1.2 DEFINITION OF GUARANTEED OBLIGATIONS. As used herein, the term “Guaranteed Obligations” shall be deemed to include, and Guarantor shall be liable for, and shall indemnify, defend and hold Lender harmless from and against, any and all Losses (as hereinafter

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defined) incurred or suffered by Lender and arising out of or in connection with the matters listed below:

(a) fraud or material misrepresentation by Borrower, Guarantor or Affiliates of Borrower or Guarantor in connection with the Security Instrument, the Note or the other Loan Documents;

(b) the misappropriation by Borrower or any Affiliate thereof of any tenant security deposits or Rent;

(c) the misapplication or conversion of Loss Proceeds;

(d) any act of intentional damage, arson or waste of the Property;

(e) Borrower’s failure to comply with the provisions of Sections 2.02(g) or 4.01 of the Security Instrument or Owner’s failure to comply with Sections 16.01 or 16.02 of the Mortgage;

(f) the exercise of any right or remedy under any federal, state or local forfeiture laws resulting in the loss or impairment of the lien of the Security Instrument, or the priority thereof, against the Property as a result of the acts or intentional omissions of Borrower or Guarantor or any Affiliates thereof;

(g) Borrower or any Affiliate of Borrower contests or in any material way interferes with, directly or indirectly (collectively, a “Contest”), any foreclosure action, UCC sale or other material remedy exercised by Lender upon the occurrence of any Event of Default under the Loan Documents whether by making any motion, bringing any counterclaim, claiming any defense, seeking any injunction or other restraint, commencing any action, or otherwise (provided that if any such Person obtains a non-appealable order successfully asserting a Contest, Guarantor shall have no liability under this clause (g));

(h) any claims, actions or proceedings initiated by Borrower (or any Affiliate of Borrower) alleging that the relationship of Borrower and Lender is that of joint venturers, partners, tenants in common, joint tenants or any relationship other than that of debtor and creditor;

(i) any claims of lien in favor of Belfor USA Group Inc. or any claims, actions or proceedings initiated by Belfor USA Group Inc. or any other mechanics liens relating to the Property; or

(j) Owner’s failure and, after written notice and demand made by Lender, Guarantor’s failure to perform, or continue performance of, all of the Construction Obligations. As used herein, the term “Construction Obligations” shall mean fully constructing, equipping and completing the portion of the Improvements known as the Plaza Resort and Spa as required by the Mortgage and the other Loan Documents and other work required by the Mortgage to be performed by Owner (the “Project”) including, without limitation, (i) constructing, equipping, completing and paying for the Project in accordance with the terms of the Mortgage, (ii) adhering to a renovation schedule approved by Lender, as required by the Mortgage and the

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other Loan Documents (iii) subject to the terms, conditions and provisions of the Mortgage and the other Loan Documents, keeping the Premises free and clear of all liens connected with or arising from the construction, equipping or completion of the Project whether equal or prior in lien or other priority or subordinate to the lien of the Mortgage, or (iv) paying to Lender the amount of any loss or damage incurred by Lender and payable by Owner under the Mortgage or the other Loan Documents as a result of any delay in the constructing, equipping or completing of the Project.1

In addition, in the event (i) any proceeding, action, petition or filing under the Bankruptcy Code, or any similar state or federal law now or hereafter in effect relating to bankruptcy, reorganization or insolvency, or the arrangement or adjustment of debts, shall be filed by, consented to or acquiesced in by Borrower, Owner or Guarantor or any of their Affiliates, or if Borrower, Owner or Guarantor or any of their Affiliates shall institute any proceeding for such Person’s dissolution or liquidation, or shall make an assignment for the benefit of creditors or (ii) of a Transfer by Borrower or Owner, as applicable, in violation of the provisions of Section 2.11 of the Security Instrument or Article IX of the Mortgage, as applicable, then the Guaranteed Obligations shall also include the unpaid balance of the Debt.2

For purposes of this Guaranty, the term “Losses” includes any and all claims, suits, liabilities (including, without limitation, strict liabilities), actions, proceedings, obligations, debts, damages, losses, costs, expenses, diminutions in value, fines, penalties, charges, fees, expenses, judgments, awards, amounts paid in settlement and punitive damages, of whatever kind or nature (including but not limited to reasonable attorneys’ fees and other costs of defense).

Section 1.3 NATURE OF GUARANTY. This Guaranty is an irrevocable, absolute, continuing guaranty of payment and performance, is joint and several and is not a guaranty of collection. This Guaranty shall continue to be effective with respect to any Guaranteed Obligations arising or created after any attempted revocation by Guarantor and after (if Guarantor is a natural Person) Guarantor’s death (in which event this Guaranty shall be binding upon Guarantor’s estate and Guarantor’s legal representatives and heirs). The obligations of Guarantor under this Guaranty shall survive any foreclosure proceeding, any foreclosure sale and delivery of any assignment in lieu of foreclosure, and any release of record of the Security Instrument. The fact that at any time or from time to time the Guaranteed Obligations may be increased or reduced shall not release or discharge the obligation of Guarantor to Lender with respect to the Guaranteed Obligations. This Guaranty may be enforced by Lender and any subsequent holder of the Note and shall not be discharged by the assignment or negotiation of all or part of the Note.

Section 1.4 GUARANTEED OBLIGATIONS NOT REDUCED BY OFFSET. The Guaranteed Obligations and the liabilities and obligations of Guarantor to Lender hereunder shall not be reduced, discharged or released because or by reason of any existing or future offset, claim or defense of Borrower, or any other Person, against Lender or against payment of the Guaranteed

1 :bad boy” act = indemnity against losses caused thereby 2 Bankruptcy matters = full recourse for mezz debt

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Obligations, whether such offset, claim or defense arises in connection with the Guaranteed Obligations (or the transactions creating the Guaranteed Obligations) or otherwise.

Section 1.5 PAYMENT BY GUARANTOR. If all or any part of the Guaranteed Obligations shall not be punctually paid when due, whether at maturity or earlier by acceleration or otherwise, Guarantor shall, immediately upon demand by Lender, and without presentment, protest, notice of protest, notice of non-payment, notice of intention to accelerate the maturity, notice of acceleration of the maturity, or any other notice whatsoever, pay in lawful money of the United States of America, the amount due on the Guaranteed Obligations to Lender at Lender’s address as set forth herein. Such demand(s) may be made at any time coincident with or after the time for payment of all or part of the Guaranteed Obligations, and may be made from time to time with respect to the same or different items of Guaranteed Obligations. Such demand shall be deemed made, given and received in accordance with the notice provisions hereof.

Section 1.6 NO DUTY TO PURSUE OTHERS. It shall not be necessary for Lender (and Guarantor hereby waives any rights which Guarantor may have to require Lender), in order to enforce this Guaranty against Guarantor, first to (i) institute suit or exhaust its remedies against Borrower or others liable on the Loan or the Guaranteed Obligations or any other Person, (ii) enforce Lender’s rights against any collateral which shall ever have been given to secure the Loan, (iii) enforce Lender’s rights against any other guarantors of the Guaranteed Obligations, (iv) join Borrower or any others liable on the Guaranteed Obligations in any action seeking to enforce this Guaranty, (v) exhaust any remedies available to Lender against any collateral which shall ever have been given to secure the Loan, or (vi) resort to any other means of obtaining payment of the Guaranteed Obligations. Lender shall not be required to mitigate damages or take any other action to reduce, collect or enforce the Guaranteed Obligations.

Section 1.7 WAIVERS. Guarantor agrees to the provisions of the Loan Documents, and hereby waives notice of (i) any loans or advances made by Lender to Borrower, (ii) acceptance of this Guaranty, (iii) any amendment or extension of the Note or of any other Loan Documents, (iv) the execution and delivery by Borrower and Lender of any other loan or credit agreement or of Borrower’s execution and delivery of any promissory notes or other documents arising under the Loan Documents or in connection with the Collateral, (v) the occurrence of any breach by Borrower or Event of Default, (vi) Lender’s transfer or disposition of the Guaranteed Obligations, or any part thereof, (vii) sale or foreclosure (or posting or advertising for sale or foreclosure) of any collateral for the Guaranteed Obligations, (viii) protest, proof of non-payment or default by Borrower, or (ix) any other action at any time taken or omitted by Lender, and, generally, all demands and notices of every kind in connection with this Guaranty, the Loan Documents, any documents or agreements evidencing, securing or relating to any of the Guaranteed Obligations and the obligations hereby guaranteed.

Section 1.8 PAYMENT OF EXPENSES. In the event that Guarantor should breach or fail to timely perform any provisions of this Guaranty, Guarantor shall, immediately upon demand by Lender, pay Lender all costs and expenses (including court costs and reasonable attorneys’ fees) incurred by Lender in the enforcement hereof or the preservation of Lender’s rights hereunder. The covenant contained in this section shall survive the payment and performance of the Guaranteed Obligations.

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Section 1.9 EFFECT OF BANKRUPTCY. In the event that, pursuant to any insolvency, bankruptcy, reorganization, receivership or other debtor relief law, or any judgment, order or decision thereunder, Lender must rescind or restore any payment, or any part thereof, received by Lender in satisfaction of the Guaranteed Obligations, as set forth herein, any prior release or discharge from the terms of this Guaranty given to Guarantor by Lender shall be without effect, and this Guaranty shall remain in full force and effect. It is the intention of Borrower and Guarantor that Guarantor’s obligations hereunder shall not be discharged except by Guarantor’s performance of such obligations and then only to the extent of such performance.

Section 1.10 DEFERRAL OF RIGHTS OF SUBROGATION, REIMBURSEMENT AND

CONTRIBUTION.

(a) Notwithstanding any payment or payments made by any Guarantor hereunder, unless and until indefeasible payment in full of the Debt (and including interest accruing on the Note after the commencement of a proceeding by or against Borrower under the Bankruptcy Code which interest the parties agree shall remain a claim that is prior and superior to any claim of Guarantor notwithstanding any contrary practice, custom or ruling in cases under the Bankruptcy Code) (i) no Guarantor will assert or exercise any right of Lender or of such Guarantor against Borrower to recover the amount of any payment made by such Guarantor to Lender by way of subrogation, reimbursement, contribution, indemnity, or otherwise arising by contract or operation of law, and such Guarantor shall not have any right of recourse to or any claim against assets or property of Borrower; and (ii) each Guarantor agrees not to seek contribution or indemnity or other recourse from any other Guarantor.

(b) Until indefeasible payment in full of the Debt (and including interest accruing on the Note after the commencement of a proceeding by or against Borrower under the Bankruptcy Code which interest the parties agree shall remain a claim that is prior and superior to any claim of Guarantor notwithstanding any contrary practice, custom or ruling in cases under the Bankruptcy Code), Guarantor agrees not to accept any payment or satisfaction of any kind of indebtedness of Borrower to Guarantor and hereby assigns such indebtedness to Lender, including the right to file proof of claim and to vote thereon in connection with any such proceeding under the Bankruptcy Code, including the right to vote on any plan of reorganization. If any amount of the type more particularly described in the first sentence of this Section 1.10(b) shall nevertheless be paid to a Guarantor by Borrower or another Guarantor prior to payment in full of all sums owed to Lender under the Loan Documents (the “Obligations”), such amount shall be held in trust for the benefit of Lender and shall forthwith be paid to Lender to be credited and applied to the Guaranteed Obligations, whether matured or unmatured.

(c) The provisions of this Section 1.10 shall survive the termination of this Guaranty, and any satisfaction and discharge of Borrower by virtue of any payment, court order or any applicable law.

Section 1.11 NET WORTH COVENANT. As long as this Guaranty is in force and effect, Guarantor shall maintain an aggregate net worth of no less than $50,000,000.00.

Section 1.12 REPLACEMENT GUARANTOR. In the event of the death or incapacity of any Guarantor, a replacement guarantor reasonably satisfactory to Lender (including having net

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worth, aggregated with all other remaining Guarantors, of at least $50,000,000) shall be provided within thirty (30) days of the death or incapacity of such Guarantor.

Section 1.13 “BORROWER”. The term “Borrower” as used herein shall include any new or successor corporation, association, partnership (general or limited), joint venture, limited liability company, trust or other individual or organization formed as a result of any merger, reorganization, sale, transfer, devise, gift or bequest of Borrower or any interest in Borrower.

ARTICLE 2 EVENTS AND CIRCUMSTANCES NOT REDUCING OR DISCHARGING

GUARANTOR’S OBLIGATIONS

Guarantor hereby consents and agrees to each of the following, and agrees that Guarantor’s obligations under this Guaranty shall not be released, diminished, impaired, reduced or adversely affected by any of the following, and waives any common law, equitable, statutory or other rights (including without limitation rights to notice) which Guarantor might otherwise have as a result of or in connection with any of the following:

Section 2.1 MODIFICATIONS. Any renewal, extension, increase, modification, alteration or rearrangement of all or any part of the Guaranteed Obligations, Note, Loan Documents, or other document, instrument, contract or understanding between Borrower and Lender, or any other parties, pertaining to the Guaranteed Obligations or any failure of Lender to notify Guarantor of any such action.

Section 2.2 ADJUSTMENT. Any adjustment, indulgence, forbearance or compromise that might be granted or given by Lender to Borrower or any Guarantor.

Section 2.3 CONDITION OF BORROWER OR GUARANTOR. The insolvency, bankruptcy, arrangement, adjustment, composition, liquidation, disability, dissolution or lack of power of Borrower, Guarantor or any other Person at any time liable for the payment of all or part of the Guaranteed Obligations; or any dissolution of Borrower or Guarantor, or any sale, lease or transfer of any or all of the assets of Borrower or Guarantor, or any changes in the shareholders, partners or members of Borrower or Guarantor; or any reorganization of Borrower or Guarantor.

Section 2.4 INVALIDITY OF GUARANTEED OBLIGATIONS. The invalidity, illegality or unenforceability of all or any part of the Guaranteed Obligations, or any document or agreement executed in connection with the Guaranteed Obligations, for any reason whatsoever, including without limitation the fact that (i) the Guaranteed Obligations, or any part thereof, exceed the amount permitted by law, (ii) the act of creating the Guaranteed Obligations or any part thereof, is ultra vires, (iii) the officers or representatives executing the Note or the other Loan Documents or otherwise creating the Guaranteed Obligations acted in excess of their authority, (iv) the Guaranteed Obligations violate applicable usury laws, (v) Borrower has valid defenses, claims or offsets (whether at law, in equity or by agreement) which render the Guaranteed Obligations wholly or partially uncollectible from Borrower, (vi) the creation, performance or repayment of the Guaranteed Obligations (or the execution, delivery and performance of any document or instrument representing part of the Guaranteed Obligations or executed in connection with the

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Guaranteed Obligations, or given to secure the repayment of the Guaranteed Obligations) is illegal, uncollectible or unenforceable, or (vii) the Note or any of the other Loan Documents have been forged or otherwise are irregular or not genuine or authentic, it being agreed that Guarantor shall remain liable hereon regardless of whether Borrower or any other Person be found not liable on the Guaranteed Obligations or any part thereof for any reason.

Section 2.5 RELEASE OF OBLIGORS. Any full or partial release of the liability of Borrower on the Guaranteed Obligations, or any part thereof, or of any co-guarantors, or any other Person or entity now or hereafter liable, whether directly or indirectly, jointly, severally, or jointly and severally, to pay, perform, guarantee or assure the payment of the Guaranteed Obligations, or any part thereof, it being recognized, acknowledged and agreed by Guarantor that Guarantor may be required to pay the Guaranteed Obligations in full without assistance or support of any other Person, and Guarantor has not been induced to enter into this Guaranty on the basis of a contemplation, belief, understanding or agreement that other parties will be liable to pay or perform the Guaranteed Obligations, or that Lender will look to other parties to pay or perform the Guaranteed Obligations.

Section 2.6 OTHER COLLATERAL. The taking or accepting of any other security, collateral or guaranty, or other assurance of payment, for all or any part of the Guaranteed Obligations.

Section 2.7 RELEASE OF COLLATERAL. Any release, surrender, exchange, subordination, deterioration, waste, loss or impairment (including without limitation negligent, willful, unreasonable or unjustifiable impairment) of any collateral, property or security, at any time existing in connection with, or assuring or securing payment of, all or any part of the Guaranteed Obligations.

Section 2.8 CARE AND DILIGENCE. The failure of Lender or any other Person to exercise diligence or reasonable care in the preservation, protection, enforcement, sale or other handling or treatment of all or any part of such collateral, property or security, including but not limited to any neglect, delay, omission, failure or refusal of Lender (i) to take or prosecute any action for the collection of any of the Guaranteed Obligations, (ii) to foreclose, or initiate any action to foreclose, or, once commenced, prosecute to completion any action to foreclose upon any security therefor, or (iii) to take or prosecute any action in connection with any instrument or agreement evidencing or securing all or any part of the Guaranteed Obligations.

Section 2.9 UNENFORCEABILITY. The fact that any collateral, security, security interest or lien contemplated or intended to be given, created or granted as security for the repayment of the Guaranteed Obligations, or any part thereof, shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other security interest or lien, it being recognized and agreed by Guarantor that Guarantor is not entering into this Guaranty in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectibility or value of any of the collateral for the Guaranteed Obligations.

Section 2.10 MERGER. The reorganization, merger or consolidation of Borrower into or with any other corporation or entity.

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Section 2.11 PREFERENCE. Any payment by Borrower to Lender is held to constitute a preference under bankruptcy laws, or for any reason Lender is required to refund such payment or pay such amount to Borrower or someone else.

Section 2.12 OTHER ACTIONS TAKEN OR OMITTED. Any other action taken or omitted to be taken with respect to the Loan Documents, the Guaranteed Obligations, or the security and collateral therefor, whether or not such action or omission prejudices Guarantor or increases the likelihood that Guarantor will be required to pay the Guaranteed Obligations pursuant to the terms hereof, it is the unambiguous and unequivocal intention of Guarantor that Guarantor shall be obligated to pay the Guaranteed Obligations when due, notwithstanding any occurrence, circumstance, event, action, or omission whatsoever, whether or not contemplated, and whether or not otherwise or particularly described herein, which obligation shall be deemed satisfied only upon the full and final payment and satisfaction of the Guaranteed Obligations.

ARTICLE 3 REPRESENTATIONS AND WARRANTIES

To induce Lender to enter into the Loan Documents and extend credit to Borrower, Guarantor represents and warrants to Lender as follows:

Section 3.1 BENEFIT. Guarantor is an Affiliate of Borrower, is the owner of a direct or indirect interest in Borrower, and has received, or will receive, direct or indirect benefit from the making of this Guaranty with respect to the Guaranteed Obligations.

Section 3.2 FAMILIARITY AND RELIANCE. Guarantor is familiar with, and has independently reviewed books and records regarding, the financial condition of Borrower and is familiar with the value of any and all collateral intended to be created as security for the payment of the Note or Guaranteed Obligations; provided, however, Guarantor is not relying on such financial condition or the collateral as an inducement to enter into this Guaranty.

Section 3.3 NO REPRESENTATION BY LENDER. Neither Lender nor any other Person has made any representation, warranty or statement to Guarantor in order to induce Guarantor to execute this Guaranty.

Section 3.4 GUARANTOR’S FINANCIAL CONDITION. As of the date hereof, and after giving effect to this Guaranty and the contingent obligation evidenced hereby, Guarantor is, and will be, Solvent.

Section 3.5 LEGALITY. The execution, delivery and performance by Guarantor of this Guaranty and the consummation of the transactions contemplated hereunder do not, and will not, contravene or conflict with any law, statute or regulation whatsoever to which Guarantor is subject or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or result in the breach of, any indenture, mortgage, deed of trust, charge, lien, or any contract, agreement or other instrument to which Guarantor is a party or which may be applicable to Guarantor. This Guaranty is a legal and binding obligation of

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Guarantor and is enforceable in accordance with its terms, except as limited by bankruptcy, insolvency or other laws of general application relating to the enforcement of creditors’ rights.

Section 3.6 SURVIVAL. All representations and warranties made by Guarantor herein shall survive the execution hereof.

Section 3.7 REVIEW OF DOCUMENTS. Guarantor has examined the Note and all of the Loan Documents.

Section 3.8 LITIGATION. Except as otherwise disclosed to Lender, there are no proceedings pending or, so far as Guarantor knows, threatened before any court or administrative agency which, if decided adversely to Guarantor, would materially adversely affect the financial condition of Guarantor or the authority of Guarantor to enter into, or the validity or enforceability of this Guaranty.

Section 3.9 TAX RETURNS. Guarantor has filed all required federal, state and local tax returns and has paid all taxes as shown on such returns as they have become due. No claims have been assessed and are unpaid with respect to such taxes.

ARTICLE 4 SUBORDINATION OF CERTAIN INDEBTEDNESS

Section 4.1 SUBORDINATION OF ALL GUARANTOR CLAIMS. As used herein, the term “Guarantor Claims” shall mean all debts and liabilities of Borrower to Guarantor, whether such debts and liabilities now exist or are hereafter incurred or arise, or whether the obligations of Borrower thereon are direct, contingent, primary, secondary, several, joint and several, or otherwise, and irrespective of whether such debts or liabilities be evidenced by note, contract, open account, or otherwise, and irrespective of the Person or Persons in whose favor such debts or liabilities may, at their inception, have been, or may hereafter be created, or the manner in which they have been or may hereafter be acquired by Guarantor. The Guarantor Claims shall include, without limitation, all rights and claims of Guarantor against Borrower (arising as a result of subrogation or otherwise) as a result of Guarantor’s payment of all or a portion of the Guaranteed Obligations to the extent the provisions of Section 1.10 hereof are unenforceable. Upon the occurrence of an Event of Default or the occurrence of an event which would, with the giving of notice or the passage of time, or both, constitute an Event of Default, Guarantor shall not receive or collect, directly or indirectly, from Borrower or any other Person any amount upon the Guarantor Claims.

Section 4.2 CLAIMS IN BANKRUPTCY. In the event of receivership, bankruptcy, reorganization, arrangement, debtor’s relief, or other insolvency proceedings involving Guarantor as debtor, Lender shall have the right to prove its claim in any such proceeding so as to establish its rights hereunder and receive directly from the receiver, trustee or other court custodian dividends and payments which would otherwise be payable upon Guarantor Claims. Guarantor hereby assigns such dividends and payments to Lender. Should Lender receive, for application upon the Guaranteed Obligations, any such dividend or payment which is otherwise payable to Guarantor, and which, as between Borrower and Guarantor, shall constitute a credit


upon the Guarantor Claims, then upon payment to Lender in full of the Guaranteed Obligations, Guarantor shall become subrogated to the rights of Lender to the extent that such payments to Lender on the Guarantor Claims have contributed toward the liquidation of the Guaranteed Obligations, and such subrogation shall be with respect to that portion of the Guaranteed Obligations which would have been unpaid if Lender had not received dividends or payments upon the Guarantor Claims.

Section 4.3 PAYMENTS HELD IN TRUST. In the event that, notwithstanding anything to the contrary in this Guaranty, Guarantor should receive any funds, payment, claim or distribution which is prohibited by this Guaranty, Guarantor agrees to hold in trust for Lender an amount equal to the amount of all funds, payments, claims or distributions so received, and agrees that it shall have absolutely no dominion over the amount of such funds, payments, claims or distributions so received except to pay them promptly to Lender, and Guarantor covenants promptly to pay the same to Lender.

Section 4.4 LIENS SUBORDINATE. Guarantor agrees that any liens, security interests, judgment liens, charges or other encumbrances upon Borrower’s assets securing payment of the Guarantor Claims shall be and remain inferior and subordinate to any liens, security interests, judgment liens, charges or other encumbrances upon Borrower’s assets securing payment of the Guaranteed Obligations, regardless of whether such encumbrances in favor of Guarantor or Lender presently exist or are hereafter created or attach. Without the prior written consent of Lender, Guarantor shall not (i) exercise or enforce any creditor’s right it may have against Borrower, or (ii) foreclose, repossess, sequester or otherwise take steps or institute any action or proceedings (judicial or otherwise, including without limitation the commencement of, or joinder in, any liquidation, bankruptcy, rearrangement, debtor’s relief or insolvency proceeding) to enforce any liens, mortgages, deeds of trust, security interests, collateral rights, judgments or other encumbrances on assets of Borrower held by Guarantor.

ARTICLE 5 MISCELLANEOUS

Section 5.1 NO WAIVER; REMEDIES CUMULATIVE. No failure or delay on the part of Lender in exercising any right, remedy, power or privilege hereunder or under the other Loan Documents and no course of dealing between Guarantor and Lender shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder or under the other Loan Documents preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege hereunder or thereunder. The rights and remedies provided herein and in the other Loan Documents are cumulative and not exclusive of any rights or remedies provided by law. The giving of notice to or demand on Guarantor which notice or demand is not required hereunder or under the other Loan Documents shall not entitle Guarantor to any other or further notice or demand in similar or other circumstances or constitute a waiver of the rights, remedies, powers or privileges of Lender in any circumstances not requiring notice or demand.


Section 5.2 NOTICES. All notices, requests and other communications to any party hereunder or under the Note shall be given in the manner set forth in Section 7.01 of the Security Instrument, and to each addressee at the address set forth below:

Guarantor: Charles Bray and Joseph Gillespie 600 North Atlantic Avenue Daytona Beach, Florida 32118 Facsimile No.: (386) 257-6694

Lender: Wachovia Bank, National Association Commercial Real Estate Services

8739 Research Drive URP 4 NC 1075

Charlotte, North Carolina 28262 Facsimile No.: (704) 715-0056

With a copy to: Proskauer Rose LLP 1585 Broadway New York, New York 10036 Attn: David J. Weinberger, Esq. Facsimile No.: (212) 969-2900

or such other address as Guarantor or Lender shall hereafter specify by not less than ten (10) days prior written notice as provided herein; provided, however, that notwithstanding any provision of this Section to the contrary, such notice of change of address shall be deemed given only upon actual receipt thereof. Rejection or other refusal to accept or the inability to deliver because of changed addresses of which no notice was given as herein required shall be deemed to be receipt of the notice, demand, statement, request or consent.

Section 5.3 GOVERNING LAW; JURISDICTION. This Guaranty shall be governed by and construed in accordance with the laws of the State of Florida and the applicable laws of the United States of America. Guarantor hereby irrevocably submits to the jurisdiction of any court of competent jurisdiction located in the State of Florida in connection with any proceeding out of or relating to this Guaranty.

Section 5.4 INVALID PROVISIONS. If any provision of this Guaranty is held to be invalid, illegal or unenforceable in any respect, this Guaranty shall be construed without such provision.

Section 5.5 AMENDMENTS. The terms of this Guaranty, together with the terms of the other Loan Documents, constitute the entire understanding and agreement of the parties hereto and supersede all prior agreements, understandings and negotiations between Guarantor and Lender with respect to the Guaranteed Obligations. This Guaranty, and any provisions hereof, may not be modified, amended, waived, extended, changed, discharged or terminated orally or by any act on the part of Guarantor or Lender, but only by an agreement in writing signed by the


party against whom enforcement of any modification, amendment, waiver, extension, change, discharge or termination is sought.

Section 5.6 PARTIES BOUND; ASSIGNMENT. This Guaranty shall be binding upon and inure to the benefit of the parties hereto and their respective successors, assigns and legal representatives; provided, however, that Guarantor may not, without the prior written consent of Lender, assign any of its rights, powers, duties or obligations hereunder.

Section 5.7 HEADINGS; CONSTRUCTION OF DOCUMENTS; DEFINITIONS. The headings and captions of various sections of this Guaranty are for convenience of reference only and are not to be construed as defining or limiting, in any way, the scope or intent of the provisions hereof. Guarantor acknowledges that it was represented by competent counsel in connection with the negotiation and drafting of this Guaranty and the other Loan Documents and that neither this Guaranty nor the other Loan Documents shall be subject to the principle of construing the meaning against the Person who drafted same. All capitalized terms not otherwise defined herein shall have the meanings set forth in the Security Instrument.

Section 5.8 RECITALS. The recital and introductory paragraphs hereof are a part hereof, form a basis for this Guaranty and shall be considered prima facie evidence of the facts and documents referred to therein.

Section 5.9 COUNTERPARTS. To facilitate execution, this Guaranty may be executed in as many counterparts as may be convenient or required. It shall not be necessary that the signature or acknowledgment of, or on behalf of, each party, or that the signature of all Persons required to bind any party, or the acknowledgment of such party, appear on each counterpart. All counterparts shall collectively constitute a single instrument. It shall not be necessary in making proof of this Guaranty to produce or account for more than a single counterpart containing the respective signatures of, or on behalf of, and the respective acknowledgments of, each of the parties hereto. Any signature or acknowledgment page to any counterpart may be detached from such counterpart without impairing the legal effect of the signatures or acknowledgments thereon and thereafter attached to another counterpart identical thereto except having attached to it additional signature or acknowledgment pages.

Section 5.10 CUMULATIVE RIGHTS. The rights of Lender under this Guaranty shall be separate, distinct and cumulative and none shall be given effect to the exclusion of the others. No act of Lender shall be construed as an election to proceed under any one provision herein to the exclusion of any other provision. Lender shall not be limited exclusively to the rights and remedies herein stated but shall be entitled, subject to the terms of this Guaranty, to every right and remedy now or hereafter afforded by law.

Section 5.11 WAIVER OF COUNTERCLAIM AND RIGHT TO TRIAL BY JURY. GUARANTOR HEREBY WAIVES THE RIGHT TO ASSERT A COUNTERCLAIM, OTHER THAN A COMPULSORY COUNTERCLAIM, IN ANY ACTION OR PROCEEDING BROUGHT AGAINST IT BY LENDER OR ITS AGENTS, AND WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING BROUGHT BY EITHER PARTY HERETO AGAINST THE OTHER OR IN ANY COUNTERCLAIM GUARANTOR MAY BE PERMITTED TO ASSERT HEREUNDER OR WHICH MAY BE ASSERTED BY LENDER OR ITS AGENTS


AGAINST GUARANTOR, OR IN ANY MATTERS WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS GUARANTY, THE DEBT OR THE GUARANTEED OBLIGATIONS.

*****

CURRENT 8190681v3

IN WITNESS WHEREOF, Guarantor has duly executed this Guaranty as of the day and year first above written.

GUARANTOR:

___________________________ Charles A. Bray

___________________________ Joseph G. Gillespie

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« HOME Perspectives on Real Estate

Spring 2009

Intercreditor Agreement Treatment of Recourse Guaranties: Split the Baby? by Robert (Robin) C. Jones, Jr. [copyrighted; all rights reserved]

In this era of troubled real estate investments, it is critical to understand the relative rights of the senior lender and the mezzanine lender in a loan default situation, particularly with respect to the separate recourse guaranties provided to each lender by the borrower. The lenders’ respective rights (including subordination) are spelled out in the intercreditor agreement between the two lenders; however, the treatment of the recourse guaranty rights against the sponsor is often unclear or not fully thought through.

Most importantly, the rights of the mezzanine lender under its separate guaranty may be blocked or curtailed at the point when having the recourse guaranty is most crucial to the mezzanine lender.

The Recourse Guaranty One of the most important documents in a typical mezzanine lending transaction is the recourse guaranty from the sponsor (the ultimate owner of the borrowing entities) to each lender. The mezzanine lender and the senior mortgage lender will have their own separate guaranty from the sponsor. The terms of the guaranties will be identical, except that the mezzanine lender’s guaranty will cover not only the mezzanine borrower’s “recourse acts,” but also those of the senior borrower, while the senior lender’s guaranty will cover only the recourse acts of the senior borrower.

The recourse guaranty is, of course, primarily a deterrent sanction against specific, deliberate borrower actions that mirror the exculpation exceptions in the underlying non-recourse loan agreement. The events covered by recourse guaranties fall into two basic categories: (a) “bad boy” acts, such as fraud, waste, misappropriation of rents or insurance proceeds, breach of single-purpose entity provisions, etc., and (b) certain major events, such as non-permitted transfers, voluntary bankruptcy and collusive involuntary bankruptcy (which I will refer to as “breaking the thread” events). The “bad boy” acts give the lender a claim to the extent of its losses caused by the covered event, while the “breaking the thread” events make the entire loan immediately recourse to the sponsor.

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Mezzanine Loan Architecture The architecture of mezzanine lending is built on the principle of separate collateral and rights: the mezzanine lender is not the beneficiary of the senior lender’s mortgage and has no claim against the senior borrower (including the right to participate as a creditor in a bankruptcy of the senior borrower). Similarly, the mezzanine lender’s equity collateral is normally defined in the intercreditor agreement as “separate collateral” against which the senior lender has no claim, and the mezzanine lender can exercise unsubordinated remedies against its equity collateral and receive and retain the proceeds thereof irrespective of whether there is a senior loan default, including senior borrower bankruptcy. To the extent of any cash flowing from the property, the rights of the mezzanine lender are fully subordinate to the claims of the senior lender, and in the event of a senior borrower default, the senior lender is entitled to payment in full before any property cash is released to the mezzanine lender. A senior borrower default thus gives the senior lender the right to block the payment of property-derived cash flow to the mezzanine lender until the default is cured. Under the intercreditor agreement, the mezzanine lender has the right to cure any senior borrower default and restore its ability to receive the cash flow from the property once the senior lender is current. Thus, in exchange for the agreement not to compete with the senior lender for the property or claim against the senior borrower, the mezzanine lender receives the unfettered right to proceed against its separate borrower and collateral (as distinct from taking a subordinate mortgage and subordinate claim against the common property owner/borrower).

Competing Rights of the Lenders to Recourse Guaranty Claims Because recourse guaranties have a common debtor in the sponsor, questions invariably arise as to how each lender's rights should be construed with respect to claims against the sponsor under such guaranties. Are such claims "common collateral" since there is a common obligor, or are they "separate collateral" protecting separate lender interests? Should the mezzanine lender’s recourse claims against the sponsor be stayed or subordinated to any pending or potential senior lender recourse claims? What if only the mezzanine lender’s recourse guaranty is triggered, such as in the event of a mezzanine borrower bankruptcy, which is neither a senior lender default nor a senior lender recourse event?

The proper approach should be to look at the specific recourse events for guidance, and to allocate (and where appropriate, subordinate) those rights based on the interests that the guaranty aims to protect. Where the primary effect of the recourse event is on one lender’s collateral and the collateral already has applicable subordination provisions in effect under the intercreditor agreement, then the subordination of the recourse claim should follow the subordination that applies to the affected collateral. For example, stealing rents or committing waste on the property primarily affects the real estate and cash flow from it, for which the subordination priorities are clearly in favor of the senior lender. Even though such events are also recourse events for the mezzanine lender, it would be appropriate to require the mezzanine lender to stand still while the senior lender pursues its recourse claim, or to turn over any recoveries on such mezzanine recourse claims to the senior lender for application to the senior debt.

In contrast, in the event of a mezzanine borrower-only bankruptcy (when there is no senior borrower bankruptcy), the mezzanine lender should not be restricted in pursuit of its mezzanine claim as (a) there is no comparable claim triggered under the senior recourse guaranty, and (b) the mezzanine recourse guaranty is customarily part of the mezzanine lender’s “separate collateral.”

Similarly, a non-permitted transfer of the property (or of the equity in the senior borrower) by the mezzanine borrower is disastrous for the mezzanine lender as its equity collateral is unhinged from the property and it is left with the then-empty shell mezzanine borrower. (Or, as Shakespeare said in Sonnet LXXIII, “bare ruined choirs, where late the sweet birds sang.”) In such event, the mezzanine lender has nothing left but its recourse guaranty claim, and ought to be allowed to pursue it.


A senior borrower bankruptcy, however, raises somewhat different and more complex issues.

Effect of Senior Borrower Bankruptcy Consistent with the mezzanine architecture of separate loans and borrowers, in a bankruptcy of the property owner, the mezzanine lender does not even have a seat at the table, and is at risk of recovering nothing whatsoever if the equity is wiped out, as is often the result in a bankruptcy. The mezzanine recourse guaranty thus bridges that gap by providing alternate recourse to the sponsor and, in that circumstance, is much more vital to the mezzanine lender than to the senior lender. The senior lender still would have access to the mortgaged property for its recovery, with a bankruptcy functioning essentially as delay for the senior lender in getting to its collateral, whereas the mezzanine lender risks being left with nothing in a senior borrower bankruptcy. This makes it important for the mezzanine lender to have an unsubordinated right under the intercreditor agreement to pursue the recourse guaranty in the event of a senior borrower bankruptcy. Indeed, most mezzanine lenders take the view that they are not underwriting a senior borrower bankruptcy and are certainly not compensated for taking that risk in the mezzanine loan pricing. While a mezzanine borrower bankruptcy could be viewed for the mezzanine lender as analogous to a senior bankruptcy for the senior lender (simply as a delay in the ability to access the collateral), in a senior borrower bankruptcy, the mezzanine lender is at risk of being cut off from its collateral entirely unless it can foreclose on its equity collateral and step into the position of the owner of the senior borrower.

Interestingly, in some recent major deals the trend in intercreditor agreements is to treat the recourse guaranty exactly opposite of what would be logically expected. The mezzanine lender is given the unsubordinated right to pursue the guaranty when it is only delayed in reaching its equity collateral (mezzanine-only bankruptcy when the senior lender does not itself have a recourse claim), but has to turn over recourse guaranty proceeds in the event of a senior bankruptcy. As discussed above, a senior borrower bankruptcy is precisely the event where the structure breaks down for the mezzanine lender, and the recourse guaranty becomes its primary collateral. If the mezzanine lender had the benefit of a perfected junior mortgage, so that it would have a continued (though subordinated) claim against the underlying property, subordination of the recourse guaranty would then be inconsequential.

Accordingly, the better result would be for the mezzanine lender to be able to pursue its recourse claim when it has nothing else left (or is at risk of losing its connection to the property), and to subordinate such recourse claims when they relate to damage to the senior lender’s property collateral.

Robert (Robin) C. Jones, Jr., is a partner in Pillsbury’s Washington, DC, office. He can be reached at 202.663.8274 or [email protected].

Also in this edition of Perspectives on Real Estate... Bankruptcy Considerations: Look Before You Leap—Patrick J. Potter and Jerry L. Hall


Buyer Beware: Federal Income Tax Issues to Consider in Connection with the Purchase of a Distressed Loan—H. Carl Moultrie, III

Experts Say Commercial Property Market Recovery Is Coming—Glenn Q. Snyder

Factoring the UCC into Buying Assets—Lynn A. Soukup and Christina Cole

Legislative Impact on the Market for Distressed Mortgage Assets—Elizabeth V. Moeller and Peter G. Koback

The Stimulus Act Provides Borrowers with Potential Deferral of Income Resulting from the Restructuring of Debt—Dana P. Newman

Transferring Commercial Real Estate Loans—William C. Bowers and Marjorie P. Fisher

When the Work Out Hasn't Worked—Lynn A. Soukup and Susan Ormand Berry

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