MAINTAIN
AN ACCOUNT (THE "CLEARING ACCOUNT") WITH CLEARING BANK IN TRUST FOR THE BENEFIT
OF LENDER, WHICH CLEARING ACCOUNT SHALL BE UNDER THE SOLE DOMINION AND CONTROL
OF LENDER.
THE CLEARING ACCOUNT SHALL BE ENTITLED "BEHRINGER HARVARD 945 EAST
PACES FERRY ROAD, LLC, AS BORROWER, AND JPMORGAN CHASE BANK, N.A., AS LENDER,
PURSUANT TO LOAN AGREEMENT DATED AS OF NOVEMBER 30, 2006 - CLEARING ACCOUNT".
BORROWER HEREBY GRANTS TO LENDER A FIRST-PRIORITY SECURITY INTEREST IN THE
CLEARING 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 CLEARING 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 CLEARING ACCOUNT AND ALL COSTS AND EXPENSES FOR
ESTABLISHING AND MAINTAINING THE CLEARING ACCOUNT SHALL BE PAID BY BORROWER.
ALL MONIES NOW OR HEREAFTER DEPOSITED INTO THE CLEARING ACCOUNT SHALL BE DEEMED
ADDITIONAL SECURITY FOR THE DEBT.
29
(B)
BORROWER SHALL, OR SHALL CAUSE PROPERTY MANAGER TO, DELIVER
IRREVOCABLE WRITTEN INSTRUCTIONS TO ALL TENANTS UNDER LEASES TO DELIVER ALL
RENTS PAYABLE THEREUNDER DIRECTLY TO THE CLEARING ACCOUNT.
BORROWER SHALL, AND
SHALL CAUSE PROPERTY MANAGER TO, DEPOSIT ALL AMOUNTS RECEIVED BY BORROWER OR
PROPERTY MANAGER CONSTITUTING RENTS INTO THE CLEARING ACCOUNT WITHIN ONE (1)
BUSINESS DAY AFTER RECEIPT THEREOF.
(C)
BORROWER SHALL OBTAIN FROM CLEARING BANK ITS AGREEMENT TO TRANSFER
TO THE DEPOSIT ACCOUNT IN IMMEDIATELY AVAILABLE FUNDS BY FEDERAL WIRE TRANSFER
ALL AMOUNTS ON DEPOSIT IN THE CLEARING ACCOUNT ONCE EVERY BUSINESS DAY DURING
THE CONTINUANCE OF A CASH SWEEP PERIOD.
(D)
UPON THE OCCURRENCE OF AN EVENT OF DEFAULT, LENDER MAY, IN
ADDITION TO ANY AND ALL OTHER RIGHTS AND REMEDIES AVAILABLE TO LENDER, APPLY ANY
SUMS THEN PRESENT IN THE CLEARING ACCOUNT TO THE PAYMENT OF THE DEBT IN ANY
ORDER IN ITS SOLE DISCRETION.
(E)
THE CLEARING ACCOUNT SHALL BE AN ELIGIBLE ACCOUNT AND SHALL NOT BE
COMMINGLED WITH OTHER MONIES HELD BY BORROWER OR CLEARING BANK.
(F)
BORROWER SHALL NOT FURTHER PLEDGE, ASSIGN OR GRANT ANY SECURITY
INTEREST IN THE CLEARING ACCOUNT OR THE MONIES DEPOSITED THEREIN OR PERMIT ANY
LIEN OR ENCUMBRANCE TO ATTACH THERETO, OR ANY LEVY TO BE MADE THEREON, OR ANY
UCC-1 FINANCING STATEMENTS, EXCEPT THOSE NAMING LENDER AS THE SECURED PARTY, TO
BE FILED WITH RESPECT THERETO, AND EXCEPT FOR THE RIGHTS OF THE CLEARING BANK
UNDER THE CLEARING ACCOUNT AGREEMENT.
(G)
BORROWER SHALL INDEMNIFY LENDER AND HOLD LENDER HARMLESS FROM AND
AGAINST ANY AND ALL ACTIONS, SUITS, CLAIMS, DEMANDS, LIABILITIES, LOSSES,
DAMAGES, OBLIGATIONS AND COSTS AND EXPENSES (INCLUDING LITIGATION COSTS AND
REASONABLE ATTORNEYS FEES AND EXPENSES) ARISING FROM OR IN ANY WAY CONNECTED
WITH THE CLEARING ACCOUNT AND/OR THE CLEARING ACCOUNT AGREEMENT (UNLESS ARISING
FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF LENDER) OR THE PERFORMANCE OF
THE OBLIGATIONS FOR WHICH THE CLEARING ACCOUNT WAS ESTABLISHED.
2.7.2
DEPOSIT ACCOUNT.
(A)
PURSUANT TO