AND INTEREST IN AND TO ALL
PAYMENTS TO OR MONIES HELD IN (I) TO THE EXTENT OF ANY INTEREST OF BORROWER
THEREIN, THE CLEARING ACCOUNT AND THE DEPOSIT ACCOUNT CREATED PURSUANT TO
SECTION 3.1(B) OF THIS AGREEMENT, AND (II) ALL SUBACCOUNTS CREATED PURSUANT TO
THIS AGREEMENT (COLLECTIVELY, THE "CASH MANAGEMENT ACCOUNTS").
BORROWER SHALL
NOT, WITHOUT OBTAINING THE PRIOR WRITTEN CONSENT OF LENDER, FURTHER PLEDGE,
ASSIGN OR GRANT ANY SECURITY INTEREST IN ANY CASH MANAGEMENT ACCOUNT, OR PERMIT
ANY LIEN TO ATTACH THERETO, OR ANY LEVY TO BE MADE THEREON, OR ANY UCC FINANCING
STATEMENTS, EXCEPT THOSE NAMING LENDER AS THE SECURED PARTY, TO BE FILED WITH
RESPECT THERETO.
THIS AGREEMENT IS, AMONG OTHER THINGS, INTENDED BY THE PARTIES
TO BE A SECURITY AGREEMENT FOR PURPOSES OF THE UCC.
UPON THE OCCURRENCE AND
DURING THE CONTINUANCE OF AN EVENT OF DEFAULT, LENDER MAY APPLY ANY SUMS IN ANY
CASH MANAGEMENT ACCOUNT IN ANY ORDER AND IN ANY MANNER AS LENDER SHALL ELECT IN
LENDER'S DISCRETION WITHOUT SEEKING THE APPOINTMENT OF A RECEIVER AND WITHOUT
ADVERSELY AFFECTING THE RIGHTS OF LENDER TO FORECLOSE THE LIEN ON THE COLLATERAL
OR EXERCISE ITS OTHER RIGHTS UNDER THE LOAN DOCUMENTS, PROVIDED THAT LENDER WILL
NOT APPLY ANY SUCH SUMS TO PREPAYMENT OF PRINCIPAL UNLESS IT HAS ACCELERATED THE
LOAN.
CASH MANAGEMENT ACCOUNTS SHALL NOT CONSTITUTE TRUST FUNDS AND MAY BE
COMMINGLED WITH OTHER MONIES HELD BY LENDER.
ALL INTEREST WHICH ACCRUES ON THE
FUNDS IN ANY CASH MANAGEMENT ACCOUNT (OTHER THAN THE TAX AND INSURANCE
SUBACCOUNT) SHALL ACCRUE FOR THE BENEFIT OF BORROWER AND SHALL BE TAXABLE TO
BORROWER AND SHALL BE ADDED TO AND DISBURSED IN THE SAME MANNER AND UNDER THE
SAME CONDITIONS AS THE PRINCIPAL SUM ON WHICH SAID INTEREST ACCRUED.
UPON
REPAYMENT IN FULL OF THE DEBT, ALL REMAINING FUNDS IN THE SUBACCOUNTS, IF ANY,
SHALL BE PROMPTLY DISBURSED TO BORROWER.
3.10
PROPERTY CASH FLOW ALLOCATION.
(A)
BORROWER SHALL CAUSE MORTGAGE BORROWER TO COMPLY WITH ALL OF THE
TERMS AND CONDITIONS SET FORTH IN SECTION 3.10 OF THE MORTGAGE LOAN AGREEMENT.
(B)
ALL TRANSFERS OF FUNDS FROM THE DEPOSIT ACCOUNT OR OTHER SOURCES TO
OR FOR THE BENEFIT OF LENDER OR BORROWER PURSUANT TO THIS AGREEMENT, THE
MORTGAGE LOAN DOCUMENTS OR ANY OF THE OTHER LOAN DOCUMENTS IN WHICH MORTGAGE
BORROWER HAS AN INTEREST IN, ARE INTENDED BY BORROWER AND MORTGAGE BORROWER TO
CONSTITUTE AND SHALL CONSTITUTE DISTRIBUTIONS FROM MORTGAGE BORROWER TO BORROWER
OF SUCH FUNDS.
34
3.11
INTENTIONALLY OMITTED.
3.12
TENANT IMPROVEMENT RESERVE SUBACCOUNT.
(A)
BORROWER SHALL CAUSE MORTGAGE BORROWER TO COMPLY WITH ALL OF THE
TERMS AND CONDITIONS SET FORTH IN SECTION 3.12 OF THE MORTGAGE LOAN AGREEMENT.
(B)
IN THE EVENT (I) MORTGAGE LENDER WAIVES THE REQUIREMENT OF MORTGAGE
BORROWER TO MAINTAIN THE TENANT IMPROVEMENT RESERVE SUBACCOUNT PURSUANT TO THE
TERMS OF SECTION 3.12 OF THE MORTGAGE LOAN AGREEMENT OR (II) THE MORTGAGE LOAN
HAS BEEN REPAID IN FULL, LENDER SHALL HAVE THE RIGHT TO REQUIRE BORROWER TO
ESTABLISH AND MAINTAIN AN ESCROW THAT WOULD OPERATE IN