THE CASH MANAGEMENT AGREEMENT, LENDER HAS ESTABLISHED
AN ACCOUNT (THE "DEPOSIT ACCOUNT") WITH A FINANCIAL INSTITUTION CHOSEN BY LENDER
IN ITS DISCRETION, WHICH DEPOSIT ACCOUNT SHALL BE UNDER THE SOLE DOMINION AND
CONTROL OF LENDER.
BORROWER HEREBY GRANTS TO LENDER A FIRST PRIORITY SECURITY
INTEREST IN THE DEPOSIT ACCOUNT AND ALL DEPOSITS AT ANY TIME CONTAINED THEREIN
AND THE PROCEEDS THEREOF AND WILL TAKE ALL ACTIONS NECESSARY TO MAINTAIN IN
FAVOR OF LENDER A PERFECTED FIRST PRIORITY SECURITY INTEREST IN THE DEPOSIT
ACCOUNT, INCLUDING, WITHOUT LIMITATION, EXECUTING AND FILING UCC-1 FINANCING
STATEMENTS AND CONTINUATIONS THEREOF.
LENDER AND SERVICER SHALL HAVE THE SOLE
RIGHT TO MAKE WITHDRAWALS FROM THE DEPOSIT ACCOUNT AND ALL COSTS AND EXPENSES
FOR ESTABLISHING AND MAINTAINING THE DEPOSIT ACCOUNT SHALL BE PAID BY BORROWER.
(B)
THE INSUFFICIENCY OF FUNDS ON DEPOSIT IN THE DEPOSIT ACCOUNT SHALL
NOT RELIEVE BORROWER FROM THE OBLIGATION TO MAKE ANY PAYMENTS, AS AND WHEN DUE
PURSUANT TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AND SUCH OBLIGATIONS
SHALL BE SEPARATE AND INDEPENDENT, AND NOT CONDITIONED ON ANY EVENT OR
CIRCUMSTANCE WHATSOEVER.
30
(C)
ALL FUNDS ON DEPOSIT IN THE DEPOSIT ACCOUNT FOLLOWING THE
OCCURRENCE OF AN EVENT OF DEFAULT MAY BE APPLIED BY LENDER IN SUCH ORDER AND
PRIORITY AS LENDER SHALL DETERMINE.
(D)
BORROWER HEREBY AGREES THAT LENDER MAY MODIFY THE CASH MANAGEMENT
AGREEMENT FOR THE PURPOSE OF ESTABLISHING ADDITIONAL SUB-ACCOUNTS IN CONNECTION
WITH ANY PAYMENTS OTHERWISE REQUIRED UNDER THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS AND LENDER SHALL PROVIDE NOTICE THEREOF TO BORROWER.
2.7.3
PAYMENTS RECEIVED UNDER THE CASH MANAGEMENT AGREEMENT.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT OR THE
OTHER LOAN DOCUMENTS, AND PROVIDED NO EVENT OF DEFAULT HAS OCCURRED AND IS
CONTINUING, BORROWER'S OBLIGATIONS WITH RESPECT TO THE PAYMENT OF THE MONTHLY
DEBT SERVICE PAYMENT AMOUNT AND AMOUNTS REQUIRED TO BE DEPOSITED INTO THE
RESERVE FUNDS, IF ANY, SHALL BE DEEMED SATISFIED TO THE EXTENT SUFFICIENT
AMOUNTS ARE DEPOSITED IN THE DEPOSIT ACCOUNT TO SATISFY SUCH OBLIGATIONS
PURSUANT TO THE CASH MANAGEMENT AGREEMENT ON THE DATES EACH SUCH PAYMENT IS
REQUIRED, REGARDLESS OF WHETHER ANY OF SUCH AMOUNTS ARE SO APPLIED BY LENDER.
III.
CONDITIONS PRECEDENT
SECTION 3.1
CONDITIONS PRECEDENT TO CLOSING.
The obligation of Lender to make the Loan hereunder is subject to the
fulfillment by Borrower or waiver by Lender of the following conditions
precedent no later than the Closing Date:
3.1.1
REPRESENTATIONS AND WARRANTIES; COMPLIANCE WITH CONDITIONS. THE
REPRESENTATIONS AND WARRANTIES OF BORROWER CONTAINED IN THIS AGREEMENT AND THE
OTHER LOAN DOCUMENTS SHALL BE TRUE AND CORRECT IN ALL MATERIAL RESPECTS ON AND
AS OF THE CLOSING DATE WITH THE SAME EFFECT AS IF MADE ON AND AS OF SUCH DATE,
AND NO DEFAULT OR AN EVENT OF DEFAULT SHALL HAVE OCCURRED AND BE CONTINUING; AND
BORROWER SHALL BE IN COMPLIANCE IN ALL MATERIAL RESPECTS WITH ALL TERMS AND
CONDITIONS SET FORTH IN THIS AGREEMENT AND IN EACH OTHER LOAN DOCUMENT ON ITS
PART TO BE OBSERVED OR PERFORMED.
3.1.2
LOAN AGREEMENT