OF TENANT
SECURITY DEPOSITS AND RENTS COLLECTED IN ADVANCE, OR OF FUNDS HELD BY BORROWER
OR MORTGAGE BORROWER FOR THE BENEFIT OF ANOTHER PARTY (OTHER THAN ACTS COMMITTED
BY A THIRD PARTY NON-AFFILIATED PROPERTY MANAGER); (F) THE FAILURE TO PAY TAXES,
PROVIDED THAT BORROWER SHALL NOT BE LIABLE (A) TO THE EXTENT FUNDS TO PAY SUCH
AMOUNTS ARE AVAILABLE IN THE TAX AND INSURANCE SUBACCOUNT AND LENDER OR MORTGAGE
LENDER, AS APPLICABLE, FAILED TO PAY SAME OR HAS ELECTED NOT TO PAY THE SAME
PURSUANT TO SECTION 3.3 HEREOF OR SECTION 3.3 OF THE MORTGAGE LOAN AGREEMENT, AS
APPLICABLE OR (B) RENTS ARE INSUFFICIENT TO YIELD SUFFICIENT FUNDS TO PAY SUCH
AMOUNTS; (G) THE BREACH OF ANY REPRESENTATION, WARRANTY, COVENANT OR
INDEMNIFICATION IN ANY LOAN DOCUMENT CONCERNING ENVIRONMENTAL LAWS OR HAZARDOUS
SUBSTANCES, INCLUDING SECTIONS 4.21 AND 5.8, AND CLAUSES (VIII) THROUGH (XI) OF
SECTION 5.30; (H) ANY REPRESENTATION OR WARRANTY MADE BY BORROWER IN SECTION 4.1
SHALL BE FALSE OR MISLEADING IN ANY MATERIAL RESPECT AS OF THE DATE MADE, OR THE
BREACH OF THE COVENANTS SET FORTH IN SECTION 5.13 (OTHER THAN A BREACH OF ANY OF
THE COVENANTS DESCRIBED IN CLAUSES (X) AND (XXI) (WITH RESPECT TO UNSECURED
TRADE PAYABLES) SET FORTH IN THE DEFINITION OF "SPECIAL PURPOSE BANKRUPTCY
REMOTE ENTITY" ON SCHEDULE 5, IF THE SAME OCCURS AS A RESULT OF THE ECONOMIC
PERFORMANCE OF THE COLLATERAL); (I) BORROWER OR GUARANTOR OR ANY OF THEIR DIRECT
OR INDIRECT AFFILIATES TAKING ANY ACTION OR MAKING ANY OMISSION INTENDED OR
REASONABLY LIKELY TO HINDER, DELAY, IMPAIR OR PREVENT LENDER IN OR FROM
ENFORCING ANY AND ALL OF ITS RIGHTS AND REMEDIES UNDER OR PURSUANT TO THE LOAN
DOCUMENTS OR AT LAW OR IN EQUITY (UNLESS THE SAME IS BROUGHT IN GOOD FAITH AND
IS DETERMINED IN FAVOR OF BORROWER OR GUARANTOR PURSUANT TO A FINAL,
NON-APPEALABLE JUDGMENT OF A COURT OF COMPETENT JURISDICTION); (J) THE
TERMINATION OF THE MANAGEMENT AGREEMENT OR THE REMOVAL OF THE THEN-CURRENT
MANAGER AS PROPERTY MANAGER THEREUNDER WITHOUT LENDER'S CONSENT; (K) BORROWER'S
OR MORTGAGE BORROWER'S MISAPPROPRIATION OR FAILURE TO PAY TO THE APPROPRIATE
PARTIES THE AMOUNTS DUE AND OWING TO SUCH PARTIES FOR WHICH A DISBURSEMENT
REQUEST WAS MADE PURSUANT TO SECTION 3.13 HEREOF OR SECTION 3.13 OF THE MORTGAGE
LOAN AGREEMENT, AS APPLICABLE, WHERE SUCH DISBURSEMENT WAS MADE DIRECTLY TO
BORROWER OR MORTGAGE BORROWER (PROVIDED, HOWEVER, THERE SHALL BE NO LIABILITY
WITH RESPECT TO A PARTICULAR DISBURSEMENT IN THE EVENT THAT EVIDENCE REASONABLY
SATISFACTORY TO LENDER HAS BEEN DELIVERED
81
WHICH SHOWS THAT SUCH DISBURSEMENT HAS BEEN APPLIED TO THE PAYMENT OF SUMS FOR
WHICH SUCH DISBURSEMENT WAS REQUESTED); (L) BORROWER'S OR MORTGAGE BORROWER'S
MISAPPROPRIATION OF NET LIQUIDATION PROCEEDS AFTER DEBT SERVICE; OR (M)
BORROWER'S MAKING A DISTRIBUTION TO ITS EQUITY OWNERS DURING THE EXISTENCE OF AN
EVENT OF DEFAULT.
(B)
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR ANY OF
THE LOAN DOCUMENTS, (A) LENDER SHALL NOT BE DEEMED TO HAVE WAIVED ANY RIGHT
WHICH LENDER MAY HAVE UNDER SECTION 506(A),