Contract analysis

Section 1.1 — Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below: "Agreement" means this Intercreditor Agreement, as it may be amended, restated, supplemented, or otherwise modified from time to time in accordance with the terms hereof. "Assignment of Leases and Rents" means that certain Assignment of Leases and Rents, dated as of the date hereof, executed by the Mor

Section 1.2 — Rules of Construction. (a) The headings and captions of the Articles, Sections, and Exhibits of this Agreement are for convenience of reference only and shall not be considered in interpreting or construing this Agreement. (b) Whenever the context so requires, the singular number shall include the plural, the plural number shall include the singular, and the use of any gender shall include all genders.

ARTICLE 2 — PRIORITY OF LIENS AND COLLATERAL

Section 2.1 — Acknowledgment of Separate Collateral Packages. The Parties acknowledge and agree that the Senior Loan and the Mezzanine Loan are secured by distinct and separate collateral packages. The Senior Loan is secured by the Mortgage and related liens and security interests in the Property and all other Senior Collateral, as more fully described in the Senior Loan Documents. The Mezzanine Loan is secured by th

Section 2.2 — Priority of Senior Loan. The Senior Loan and all obligations of the Mortgage Borrower thereunder (including, without limitation, all principal, interest, fees, costs, expenses, indemnification obligations, and other amounts payable under the Senior Loan Documents) shall be senior and prior in right of payment and priority to the Mezzanine Loan and all obligations of the Mezzanine Borrower thereunder. Th

Section 2.3 — Priority of Mezzanine Lender's Interest in Pledged Collateral. The Senior Agent, on behalf of the Senior Lenders, hereby acknowledges and agrees that it has no lien on, security interest in, or other claim to, the Pledged Collateral (i.e., the membership interests in the Mortgage Borrower held by the Mezzanine Borrower). The Mezzanine Lender's security interest in the Pledged Collateral is prior and sup

Section 2.4 — No marshaling. Neither Party shall be required to marshal any collateral securing its respective Loan, and each Party hereby irrevocably waives any right of marshaling with respect to the other Party's collateral. Without limiting the generality of the foregoing, the Senior Agent shall have no obligation to proceed against or realize upon any particular item of Senior Collateral in any particular order

Section 2.5 — Subordination of Mezzanine Debt to Senior Debt. Notwithstanding the existence of separate collateral packages, in any Bankruptcy Proceeding, receivership, or other insolvency or liquidation proceeding involving the Mortgage Borrower: (a) All Senior Loan obligations shall be indefeasibly paid in full in cash before any payment or distribution of any kind (whether in cash, securities, or other property) i

Section 2.6 — UCC Priorities. Any UCC financing statements filed by the Mezzanine Lender with the Delaware Secretary of State or any other filing office with respect to the Pledged Collateral shall not be deemed to create, evidence, or perfect any lien on or security interest in the Senior Collateral, and the Parties acknowledge that such financing statements relate solely to the Mezzanine Collateral. The Senior Agen

ARTICLE 3 — PAYMENTS; APPLICATION OF PROCEEDS

Section 3.1 — Permitted Payments on Mezzanine Loan. So long as no Senior Event of Default has occurred and is continuing, and so long as no Payment blockage Notice has been delivered by the Senior Agent to the Mezzanine Lender and remains in effect, the Mezzanine Borrower may make, and the Mezzanine Lender may receive, regularly scheduled payments of interest (at the rate of 11.50% fixed per annum, as set forth in th

Section 3.2 — Blockage of Mezzanine Payments During Senior Default. Upon the occurrence and during the continuance of a Senior Event of Default, and upon and after the delivery by the Senior Agent of a Payment blockage Notice to the Mezzanine Lender in substantially the form attached hereto as Exhibit E: (a) No payments of principal, interest, fees, expenses, or any other amounts may be made by or on behalf of the Me

Section 3.3 — Turnover of Improper Payments. If the Mezzanine Lender receives any payment (whether of principal, interest, fees, or otherwise) on account of the Mezzanine Loan during a Payment blockage Period or otherwise in violation of Section 3.2, the Mezzanine Lender shall hold such payment in trust for the benefit of the Senior Agent and shall promptly (and in any event within three (3) Business Days of receipt)

Section 3.4 — Distributions from Senior Collateral. All casualty and condemnation proceeds, insurance proceeds, and any other proceeds from or attributable to the Senior Collateral, including any amounts realized upon any sale, disposition, or other realization upon any Senior Collateral (whether voluntary, by foreclosure, or otherwise), shall be applied, held, and disbursed solely in accordance with the Senior Loan

Section 3.5 — Cash Management. The Mezzanine Lender hereby acknowledges and consents to the hard lockbox and springing cash sweep mechanism implemented under the Cash Management Agreement. The Mezzanine Lender has reviewed the cash management waterfall set forth in the Cash Management Agreement and acknowledges that, upon the occurrence of a cash sweep trigger event (including a DSCR falling below 1.10x on a trailing

ARTICLE 4 — REPRESENTATIONS AND WARRANTIES

Section 4.1 — Representations of Each Party. Each Party hereby represents and warrants to the other Party, as of the date hereof, as follows: (a) Organization and Good Standing. Such Party is duly organized (or, in the case of the Senior Agent, duly chartered), validly existing, and in good standing under the laws of its jurisdiction of organization or chartering (in the case of the Senior Agent, a national banking a

Section 4.2 — Senior Agent Representations. The Senior Agent hereby represents and warrants to the Mezzanine Lender, as of the date hereof, as follows: (a) The Senior Loan is in the original principal amount of Four Hundred Seventy-Five Million and 00/100 Dollars ($475,000,000). (b) The Senior Agent has been duly appointed as administrative agent under and pursuant to the Senior Loan Agreement, and has full authority

Section 4.3 — Mezzanine Lender Representations. The Mezzanine Lender hereby represents and warrants to the Senior Agent, as of the date hereof, as follows: (a) The Mezzanine Loan is in the original principal amount of Two Hundred Million and 00/100 Dollars ($200,000,000). (b) True, correct, and complete copies of the Mezzanine Loan Documents (in form substantially final as of the date hereof) have been delivered to t

ARTICLE 5 — STANDSTILL AND MEZZANINE LENDER'S EXERCISE OF REMEDIES

Section 5.1 — Mezzanine Lender's Remedies Subject to Restrictions. The Mezzanine Lender acknowledges and agrees that its rights to exercise remedies under the Mezzanine Loan Documents shall be subject to the restrictions, standstill requirements, and notice obligations set forth in this Article 5. Without limiting the generality of the foregoing, the Mezzanine Lender may not exercise any remedies under the Mezzanine

Section 5.2 — Standstill Period. Upon the occurrence of a Mezzanine Event of Default, the Mezzanine Lender shall deliver written notice thereof to the Senior Agent (a "Mezzanine Default Notice"), which notice shall include a reasonably detailed description of the Mezzanine Event of Default, including the nature thereof, the date of occurrence, and the provisions of the Mezzanine Loan Documents that have been breached

Section 5.3 — Permitted Exercises After Standstill. After the expiration or termination of the Standstill Period (and provided that the applicable Mezzanine Event of Default has not been cured during the Standstill Period), the Mezzanine Lender may exercise any and all of its rights and remedies under the Mezzanine Loan Documents, the Pledge and Security Agreement, the UCC, and applicable law. Provided, however, that

Section 5.4 — No Mezzanine Foreclosure on Senior Collateral. The Mezzanine Lender shall not, at any time, levy, execute upon, attach, garnish, or foreclose upon (or seek to levy, execute upon, attach, garnish, or foreclose upon) any Senior Collateral, including, without limitation, the Property, any improvements thereon, any rents, issues, or profits therefrom, or any other assets or property of the Mortgage Borrower

Section 5.5 — Mezzanine Lender's Right to Enforce After Senior Default. If a Senior Event of Default has occurred and the Senior Agent has accelerated the Senior Loan and commenced foreclosure proceedings on the Property or other enforcement actions with respect to the Senior Collateral, the Mezzanine Lender's standstill obligations under Section 5.2 of this Agreement shall remain in full force and effect. During suc

Section 6.1 — Mezzanine Lender's Right to Cure Senior Defaults. Upon the occurrence of a Senior Event of Default, the Senior Agent shall promptly deliver written notice thereof to the Mezzanine Lender (which notice shall include a reasonably detailed description of the nature of such Senior Event of Default and the provisions of the Senior Loan Documents that have been breached), and the Senior Agent shall deliver su

Section 6.2 — Effect of Cure. A cure tendered by the Mezzanine Lender in accordance with Section 6.1 shall be deemed to constitute a cure by the Mortgage Borrower for purposes of the Senior Loan Documents, and the Senior Event of Default that was the subject of such cure shall be deemed to have been remedied (a "Mezzanine Cure"). Upon the effectiveness of a Mezzanine Cure, the Senior Agent shall promptly confirm in w

Section 6.3 — Senior Agent's Right to Cure Mezzanine Defaults. The Senior Agent shall have the right, but not the obligation, to cure any Mezzanine Event of Default, within the following periods: (a) Monetary Defaults. With respect to any Mezzanine Event of Default arising from the failure by the Mezzanine Borrower to pay any principal, interest, fees, or other monetary obligations when due under the Mezzanine Loan D

Section 6.4 — Notice Obligations. Each Party shall promptly notify the other Party in writing of each of the following events, and in no event later than five (5) Business Days after the notifying Party has actual knowledge of the occurrence thereof: (a) The occurrence of any Event of Default under its respective Loan Documents; (b) Any acceleration of its respective Loan; (c) Any commencement of foreclosure proceedi

Section 7.1 — Grant of Purchase Option. The Senior Agent, on behalf of the Senior Lenders, hereby grants to the Mezzanine Lender an irrevocable option (the "Purchase Option") to purchase all (but not less than all) of the Senior Loan, including all of the Senior Loan Documents, all liens and security interests granted thereunder, and all obligations of the Mortgage Borrower and any guarantor or indemnitor thereunder,

Section 7.2 — Exercise of Purchase Option. The Mezzanine Lender must exercise the Purchase Option by delivering an irrevocable written notice to the Senior Agent in substantially the form of Exhibit D attached hereto (the "Option Exercise Notice") within days after the Mezzanine Lender's receipt of written notice from the Senior Agent of a trigger event under Section 7.1. Time is of the essence with respect to the de

Section 7.3 — Purchase Price. The purchase price for the Senior Loan (the "Purchase Price") shall be an amount equal to the sum of, without duplication: (a) The entire outstanding principal balance of the Senior Loan as of the Option Closing Date; (b) All accrued and unpaid interest thereon (including any default interest, if applicable) through the Option Closing Date; (c) All unpaid fees, costs, expenses, servicing

Section 7.4 — Closing Mechanics. At the Option Closing: (a) The Senior Agent shall execute and deliver to the Mezzanine Lender an assignment and assumption agreement (in customary form reasonably acceptable to the Parties), pursuant to which the Senior Agent, on behalf of the Senior Lenders, shall transfer, assign, and convey to the Mezzanine Lender all of the Senior Lenders' right, title, and interest in and to the

Section 7.5 — Suspension of Senior Remedies. Upon the timely delivery of the Option Exercise Notice in accordance with Section 7.2, the Senior Agent shall promptly suspend all pending enforcement actions with respect to the Senior Loan and the Senior Collateral (including, without limitation, any pending foreclosure proceedings, applications for the appointment of a receiver, and UCC sale proceedings) and shall not,

Section 7.6 — No Partial Exercise. The Purchase Option must be exercised with respect to all of the Senior Loan and all of the Senior Loan Documents. No partial acquisition, partial assignment, or partial assumption of the Senior Loan or the Senior Loan Documents shall be permitted under this Article 7. The Mezzanine Lender may not exercise the Purchase Option with respect to less than all of the outstanding principa

ARTICLE 8 — PERMITTED MODIFICATIONS; CONSENT RIGHTS

Section 8.1 — Permitted Modifications to Senior Loan. The Senior Agent and the Senior Lenders may, from time to time, modify, amend, supplement, restate, extend, renew, refinance, or waive any provision of the Senior Loan Documents without the consent of the Mezzanine Lender (any such modification, amendment, supplement, restatement, extension, renewal, refinancing, or waiver, a "Permitted Senior Modification"); prov