Common use of Reserve Funds, Generally Clause in Contracts

Reserve Funds, Generally. (a) Borrower grants to Lender a first-priority perfected security interest in each of the Reserve Funds and the related Accounts and any and all monies now or hereafter deposited in each Reserve Fund and related Account as additional security for payment of the Debt. Until expended or applied in accordance herewith, the Reserve Funds and the related Accounts shall constitute additional security for the Debt. (b) Upon the occurrence and during the continuance 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 any or all of the Reserve Funds to the payment of the Debt in any order in its sole discretion; provided, however, Lender shall have no right to apply any of the sums on deposit in the REIT Distribution Fund to amounts owing under the Loan until such time as Lender, Mezzanine B Lender, Mezzanine C Lender, Mezzanine D Lender and/or Mezzanine E Lender has foreclosed on all of the Collateral, the Mezzanine B Collateral, the Mezzanine C Collateral, the Mezzanine D Collateral and/or the Mezzanine E Collateral, as applicable, or has otherwise acquired all of the Collateral, the Mezzanine B Collateral, the Mezzanine C Collateral, the Mezzanine D Collateral and/or the Mezzanine E Collateral, as applicable, in connection with the exercise of its rights and remedies under any of the Loan Documents, the Mezzanine B Loan Documents, the Mezzanine C Loan Documents, the Mezzanine D Loan Documents and/or the Mezzanine E Loan Documents, as applicable, following an Event of Default, Mezzanine B Event of Default, Mezzanine C Event of Default, Mezzanine D Event of Default and/or Mezzanine E Event of Default, as applicable. (c) The Reserve Funds shall not constitute trust funds and may be commingled with other monies held by Lender. (d) The Reserve Funds shall be held in interest bearing accounts and all earnings or interest on a Reserve Fund shall be added to and become a part of such Reserve Fund and shall be disbursed in the same manner as other monies deposited in such Reserve Fund, except that earnings or interest on any Reserve Fund established pursuant to Sections 7.1, 7.2, 7.5 and 7.6 hereof shall not be added to or become a part thereof and shall be the sole property of and shall be paid to Lender. (e) Borrower shall not, without obtaining the prior written consent of Lender, further pledge, assign or grant any security interest in any Reserve Fund or related 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. (f) Pledgor shall indemnify Lender and the Indemnified Parties and hold Lender and the Indemnified Parties 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 Reserve Funds or the related Accounts or the performance of the obligations for which the Reserve Funds or the related Accounts were established, except to the extent arising from the gross negligence or willful misconduct of Lender, its agents or employees. Pledgor shall assign to Lender all rights and claims Pledgor may have against all Persons supplying labor, materials or other services which are to be paid from or secured by the Reserve Funds or the related Accounts; provided, however, that Lender may not pursue any such right or claim unless an Event of Default has occurred and remains uncured.

Reserve Funds, Generally. (a) Borrower grants Borrowers hereby grant to Lender a first-priority perfected security interest in each of the Reserve Funds and the related Accounts held by Lender and any and all monies now or hereafter deposited in each Reserve Fund and related Account as additional security for payment of the Debt. Until expended or applied in accordance herewith, the Reserve Funds and the related Accounts shall constitute additional security for the Debt. (b) . Upon the occurrence and during the continuance 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 any or all of the Reserve Funds to the payment reduction of the Debt in any order accordance with the provisions of Section 2.4.4 hereof (with the determination of the Exit Fee payable in connection therewith being made in accordance with the provisions of Section 2.8), which Section 2.4.4 provides for the application of such amounts to the Debt in such order, proportion and priority as Lender may determine in its sole discretion, until the Debt is paid in full, with any amounts remaining being disbursed to (i) First Mezzanine Lender for application by First Mezzanine Lender in accordance with the terms of the First Mezzanine Loan Documents if the First Mezzanine Debt (or any portion thereof) is outstanding, until the First Mezzanine Debt is paid in full, and then (ii) Second Mezzanine Lender for application by Second Mezzanine Lender in accordance with the terms of the Second Mezzanine Loan Documents if the Second Mezzanine Debt (or any portion thereof) is outstanding, until the Second Mezzanine Debt is paid in full, and then (iii) Third Mezzanine Lender for application by Third Mezzanine Lender in accordance with the terms of the Third Mezzanine Loan Documents if the Third Mezzanine Debt (or any portion thereof) is outstanding, until the Third Mezzanine Debt is paid in full, and then (iv) any balance remaining to Borrowers. Any amount remaining in any of the Reserve Funds after the Obligations have been satisfied shall be released to Borrowers; provided, however, that Borrowers and Lender shall hereby agree and acknowledge that if (A)(1) all of the Obligations have no right to apply been satisfied, (2) there is any amount remaining in any of the sums on deposit Reserve Funds, and (3) the First Mezzanine Debt (or any portion thereof) is outstanding, then Lender will not pay any such remaining amount in any of the REIT Distribution Fund Reserve Funds to amounts owing under Borrowers, but rather shall deliver such amount to First Mezzanine Lender to be held in accordance with the terms of the First Mezzanine Loan until such time as Lender, Mezzanine B Lender, Mezzanine C Lender, Mezzanine D Lender and/or Mezzanine E Lender has foreclosed on Documents; or (B)(1) all of the CollateralObligations and the First Mezzanine Obligations have been satisfied, (2) there is any amount remaining in any of the Reserve Funds, and (3) the Second Mezzanine B CollateralDebt (or any portion thereof) is outstanding, then Lender will not pay any such remaining amount in any of the Reserve Funds to Borrowers, but rather shall deliver such amount to Second Mezzanine C Collateral, Lender to be held in accordance with the terms of the Second Mezzanine D Collateral and/or the Mezzanine E Collateral, as applicable, Loan Documents; or has otherwise acquired (C)(1) all of the CollateralObligations, the First Mezzanine B CollateralObligations and the Second Mezzanine Obligations have been satisfied, the Mezzanine C Collateral, the Mezzanine D Collateral and/or the Mezzanine E Collateral, as applicable, (2) there is any amount remaining in connection with the exercise of its rights and remedies under any of the Reserve Funds, and (3) the Third Mezzanine Debt (or any portion thereof) is outstanding, then Lender will not pay any such remaining amount in any of the Reserve Funds to Borrowers, but rather shall deliver such amount to Third Mezzanine Lender to be held in accordance with the terms of the Third Mezzanine Loan Documents, the Mezzanine B Loan Documents, the Mezzanine C Loan Documents, the Mezzanine D Loan Documents and/or the Mezzanine E Loan Documents, as applicable, following an Event of Default, Mezzanine B Event of Default, Mezzanine C Event of Default, Mezzanine D Event of Default and/or Mezzanine E Event of Default, as applicable. (c) . The Reserve Funds shall not constitute trust funds and may be commingled with other monies held by Lender. (db) The Reserve Funds shall be held in interest bearing accounts and all earnings or interest on a Reserve Fund shall be added Except to and become a part of such Reserve Fund and shall be disbursed the extent provided in the same manner as other monies deposited in such Reserve FundFirst Mezzanine Loan Documents, except that earnings or interest on any Reserve Fund established pursuant to Sections 7.1the Second Mezzanine Loan Documents and/or the Third Mezzanine Loan Documents, 7.2, 7.5 and 7.6 hereof shall not be added to or become a part thereof and shall be the sole property of and shall be paid to Lender. (e) Borrower Borrowers shall not, without obtaining the prior written consent of Lender, further pledge, assign or grant any security interest in any Reserve Fund or related 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. (fc) Pledgor The Reserve Funds shall be held in an Eligible Account in Permitted Investments pursuant to the Cash Management Agreement. All interest or other earnings on a Reserve Fund (with the exception of the Tax and Insurance Escrow Fund) shall be added to and become a part of such Reserve Fund and shall be disbursed in the same manner as other monies deposited in such Reserve Fund, except that all interest or other earnings on the Tax and Insurance Escrow Fund shall be retained by Lender. Borrowers shall have the right to direct Lender to invest sums on deposit in the Eligible Account in Permitted Investments provided (i) such investments are then regularly offered by Lender for accounts of this size, category and type, (ii) such investments are permitted by applicable Legal Requirements, (iii) the maturity date of the Permitted Investment is not later than the date on which the applicable Reserve Fund is required for payment of an obligation for which such Reserve Fund was created, and (iv) no Event of Default shall have occurred and be continuing. Borrowers shall be responsible for payment of any federal, state or local income or other tax applicable to the interest or income earned on the Reserve Funds (with the exception of the Tax and Insurance Escrow Fund). No other investments of the sums on deposit in the Reserve Funds shall be permitted except as set forth in this Section 7.8. Borrowers shall bear all reasonable costs associated with the investment of the sums in the account in Permitted Investments. Such costs shall be deducted from the income or earnings on such investment, if any, and to the extent such income or earnings shall not be sufficient to pay such costs, such costs shall be paid by Borrowers promptly on demand by Lender. Lender shall have no liability for the rate of return earned or losses incurred on the investment of the sums in Permitted Investments. (d) Borrowers, jointly and severally, shall indemnify Lender and the Indemnified Parties and hold Lender and the Indemnified Parties harmless from and against any and all actions, suits, third party claims, demands, liabilities, actual losses, actual damages (excluding lost profits, diminution in value and other consequential damages), obligations and reasonable costs and expenses (including litigation costs and reasonable attorneys attorneys’ fees and expenses) arising from or in any way connected with the Reserve Funds or the related Accounts held by Lender or the performance of the obligations for which the Reserve Funds or the related Accounts were established, except to the extent excluding matters arising from the Lender’s or its agents’ fraud, willful misconduct, illegal acts or gross negligence or willful misconduct of Lender, its agents or employeesnegligence. Pledgor Borrowers shall assign to Lender all rights and claims Pledgor any Borrower may have against all Persons supplying labor, materials or other services which are to be paid from or secured by the Reserve Funds or the related AccountsFunds; provided, however, that Lender may not pursue any such right or claim unless an Event of Default has occurred and remains uncured.

Reserve Funds, Generally. (a) Borrower grants Borrowers hereby grant to Lender a first-priority perfected security interest in each of the Reserve Funds and the related Accounts held by Lender and any and all monies now or hereafter deposited in each Reserve Fund and related Account as additional security for payment of the Debt. Until expended or applied in accordance herewith, the Reserve Funds and the related Accounts shall constitute additional security for the Debt. (b) Upon the occurrence and during the continuance 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 any or all of the Reserve Funds to the payment reduction of the Debt in any order accordance with the provisions of Section 2.4.4 hereof (with the determination of the Exit Fee payable in connection therewith being made in accordance with the provisions of Section 2.8), which Section 2.4.4 provides for the application of such amounts to the Debt in such order, proportion and priority as Lender may determine in its sole discretion, until the Debt is paid in full, with any amounts remaining being disbursed as follows: (i) first, to Third Mezzanine Lender for application by Third Mezzanine Lender in accordance with the terms of the Third Mezzanine Loan Documents if the Third Mezzanine Debt (or any portion thereof) is outstanding, until the Third Mezzanine Debt is paid in full, and (ii) then, any balance remaining to Borrowers. (c) Any amount remaining in any of the Reserve Funds after the Obligations have been satisfied shall be released to Borrowers; provided, however, that Borrowers and Lender shall hereby agree and acknowledge that if (1) all of the Obligations have no right to apply been satisfied, (2) there is any amount remaining in any of the sums on deposit Reserve Funds, and (3) the Third Mezzanine Debt (or any portion thereof) is outstanding, then Lender will not pay any such remaining amount in the REIT Distribution Fund to amounts owing under the Loan until such time as Lender, Mezzanine B Lender, Mezzanine C Lender, Mezzanine D Lender and/or Mezzanine E Lender has foreclosed on all of the Collateral, the Mezzanine B Collateral, the Mezzanine C Collateral, the Mezzanine D Collateral and/or the Mezzanine E Collateral, as applicable, or has otherwise acquired all of the Collateral, the Mezzanine B Collateral, the Mezzanine C Collateral, the Mezzanine D Collateral and/or the Mezzanine E Collateral, as applicable, in connection with the exercise of its rights and remedies under any of the Reserve Funds to Borrowers, but rather shall deliver such amount to Third Mezzanine Lender to be held in accordance with the terms of the Third Mezzanine Loan Documents, the Mezzanine B Loan Documents, the Mezzanine C Loan Documents, the Mezzanine D Loan Documents and/or the Mezzanine E Loan Documents, as applicable, following an Event of Default, Mezzanine B Event of Default, Mezzanine C Event of Default, Mezzanine D Event of Default and/or Mezzanine E Event of Default, as applicable. (c) . The Reserve Funds shall not constitute trust funds and may be commingled with other monies held by Lender. (d) The Reserve Funds shall be held in interest bearing accounts and all earnings or interest on a Reserve Fund shall be added Except to and become a part of such Reserve Fund and shall be disbursed the extent provided in the same manner as other monies deposited in such Reserve FundMezzanine Loan Documents, except that earnings or interest on any Reserve Fund established pursuant to Sections 7.1, 7.2, 7.5 and 7.6 hereof shall not be added to or become a part thereof and shall be the sole property of and shall be paid to Lender. (e) Borrower Borrowers shall not, without obtaining the prior written consent of Lender, further pledge, assign or grant any security interest in any Reserve Fund or related 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. (fe) Pledgor The Reserve Funds shall indemnify be held in an Eligible Account in Permitted Investments pursuant to the Cash Management Agreement. All interest or other earnings on a Reserve Fund (with the exception of the Tax and Insurance Escrow Fund) shall be added to and become a part of such Reserve Fund and shall be disbursed in the same manner as other monies deposited in such Reserve Fund, except that all interest or other earnings on the Tax and Insurance Escrow Fund shall be retained by Lender. Borrowers shall have the right to direct Lender to invest sums on deposit in the Eligible Account in Permitted Investments provided (i) such investments are then regularly offered by Lender for accounts of this size, category and type, (ii) such investments are permitted by applicable Legal Requirements, (iii) the Indemnified Parties maturity date of the Permitted Investment is not later than the date on which the applicable Reserve Fund is required for payment of an obligation for which such Reserve Fund was created, and hold Lender (iv) no Event of Default shall have occurred and be continuing. Borrowers shall be responsible for payment of any federal, state or local income or other tax applicable to the Indemnified Parties 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 interest or in any way connected with income earned on the Reserve Funds or (with the related Accounts or the performance exception of the obligations for which Tax and Insurance Escrow Fund). No other investments of the sums on deposit in the Reserve Funds shall be permitted except as set forth in this Section 7.9. Borrowers shall bear all reasonable costs associated with the investment of the sums in the account in Permitted Investments. Such costs shall be deducted from the income or the related Accounts were establishedearnings on such investment, except if any, and to the extent arising from the gross negligence such income or willful misconduct of Lenderearnings shall not be sufficient to pay such costs, its agents or employees. Pledgor such costs shall assign to Lender all rights and claims Pledgor may have against all Persons supplying labor, materials or other services which are to be paid from by Borrowers promptly on demand by Lender. Lender shall have no liability for the rate of return earned or secured by losses incurred on the Reserve Funds or investment of the related Accounts; provided, however, that Lender may not pursue any such right or claim unless an Event of Default has occurred and remains uncuredsums in Permitted Investments.

Reserve Funds, Generally. (a) Borrower grants Borrowers hereby grant to Lender a first-priority perfected security interest in each of the Reserve Funds and the related Accounts held by Lender and any and all monies now or hereafter deposited in each Reserve Fund and related Account as additional security for payment of the Debt. Until expended or applied in accordance herewith, the Reserve Funds and the related Accounts shall constitute additional security for the Debt. (b) Upon the occurrence and during the continuance 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 any or all of the Reserve Funds to the payment reduction of the Debt in any order accordance with the provisions of Section 2.4.4 hereof (with the determination of the Exit Fee payable in connection therewith being made in accordance with the provisions of Section 2.8), which Section 2.4.4 provides for the application of such amounts to the Debt in such order, proportion and priority as Lender may determine in its sole discretion, until the Debt is paid in full, with any amounts remaining being disbursed as follows: (i) first, to Second Mezzanine Lender for application by Second Mezzanine Lender in accordance with the terms of the Second Mezzanine Loan Documents if the Second Mezzanine Debt (or any portion thereof) is outstanding, until the Second Mezzanine Debt is paid in full, (ii) then, to Third Mezzanine Lender for application by Third Mezzanine Lender in accordance with the terms of the Third Mezzanine Loan Documents if the Third Mezzanine Debt (or any portion thereof) is outstanding, until the Third Mezzanine Debt is paid in full, and (iii) then, any balance remaining to Borrowers. (c) Any amount remaining in any of the Reserve Funds after the Obligations have been satisfied shall be released to Borrowers; provided, however, that Borrowers and Lender shall hereby agree and acknowledge that (A) if (1) all of the Obligations have no right to apply been satisfied, (2) there is any amount remaining in any of the sums on deposit Reserve Funds, and (3) the Second Mezzanine Debt (or any portion thereof) is outstanding, then Lender will not pay any such remaining amount in any of the REIT Distribution Fund Reserve Funds to amounts owing under Borrowers, but rather shall deliver such amount to Second Mezzanine Lender to be held in accordance with the terms of the Second Mezzanine Loan until such time as Lender, Mezzanine B Lender, Mezzanine C Lender, Mezzanine D Lender and/or Mezzanine E Lender has foreclosed on Documents; or (B) if (1) all of the CollateralObligations and the Second Mezzanine Obligations have been satisfied, the Mezzanine B Collateral, the Mezzanine C Collateral, the Mezzanine D Collateral and/or the Mezzanine E Collateral, as applicable, or has otherwise acquired all of the Collateral, the Mezzanine B Collateral, the Mezzanine C Collateral, the Mezzanine D Collateral and/or the Mezzanine E Collateral, as applicable, (2) there is any amount remaining in connection with the exercise of its rights and remedies under any of the Reserve Funds, and (3) the Third Mezzanine Debt (or any portion thereof) is outstanding, then Lender will not pay any such remaining amount in any of the Reserve Funds to Borrowers, but rather shall deliver such amount to Third Mezzanine Lender to be held in accordance with the terms of the Third Mezzanine Loan Documents, the Mezzanine B Loan Documents, the Mezzanine C Loan Documents, the Mezzanine D Loan Documents and/or the Mezzanine E Loan Documents, as applicable, following an Event of Default, Mezzanine B Event of Default, Mezzanine C Event of Default, Mezzanine D Event of Default and/or Mezzanine E Event of Default, as applicable. (c) . The Reserve Funds shall not constitute trust funds and may be commingled with other monies held by Lender. (d) The Reserve Funds shall be held in interest bearing accounts and all earnings or interest on a Reserve Fund shall be added Except to and become a part of such Reserve Fund and shall be disbursed the extent provided in the same manner as other monies deposited in such Reserve FundMezzanine Loan Documents, except that earnings or interest on any Reserve Fund established pursuant to Sections 7.1, 7.2, 7.5 and 7.6 hereof shall not be added to or become a part thereof and shall be the sole property of and shall be paid to Lender. (e) Borrower Borrowers shall not, without obtaining the prior written consent of Lender, further pledge, assign or grant any security interest in any Reserve Fund or related 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. (e) The Reserve Funds shall be held in an Eligible Account in Permitted Investments pursuant to the Cash Management Agreement. All interest or other earnings on a Reserve Fund (with the exception of the Tax and Insurance Escrow Fund) shall be added to and become a part of such Reserve Fund and shall be disbursed in the same manner as other monies deposited in such Reserve Fund, except that all interest or other earnings on the Tax and Insurance Escrow Fund shall be retained by Lender. Borrowers shall have the right to direct Lender to invest sums on deposit in the Eligible Account in Permitted Investments provided (i) such investments are then regularly offered by Lender for accounts of this size, category and type, (ii) such investments are permitted by applicable Legal Requirements, (iii) the maturity date of the Permitted Investment is not later than the date on which the applicable Reserve Fund is required for payment of an obligation for which such Reserve Fund was created, and (iv) no Event of Default shall have occurred and be continuing. Borrowers shall be responsible for payment of any federal, state or local income or other tax applicable to the interest or income earned on the Reserve Funds (with the exception of the Tax and Insurance Escrow Fund). No other investments of the sums on deposit in the Reserve Funds shall be permitted except as set forth in this Section 7.9. Borrowers shall bear all reasonable costs associated with the investment of the sums in the account in Permitted Investments. Such costs shall be deducted from the income or earnings on such investment, if any, and to the extent such income or earnings shall not be sufficient to pay such costs, such costs shall be paid by Borrowers promptly on demand by Lender. Lender shall have no liability for the rate of return earned or losses incurred on the investment of the sums in Permitted Investments. (f) Pledgor Borrowers, jointly and severally, shall indemnify Lender and the Indemnified Parties and hold Lender and the Indemnified Parties harmless from and against any and all actions, suits, third party claims, demands, liabilities, actual losses, actual damages (excluding lost profits, diminution in value and other consequential damages), obligations and reasonable costs and expenses (including litigation costs and reasonable attorneys attorneys’ fees and expenses) arising from or in any way connected with the Reserve Funds or the related Accounts held by Lender or the performance of the obligations for which the Reserve Funds or the related Accounts were established, except to the extent excluding matters arising from the Lender’s or its agents’ fraud, willful misconduct, illegal acts or gross negligence or willful misconduct of Lender, its agents or employeesnegligence. Pledgor Borrowers shall assign to Lender all rights and claims Pledgor any Borrower may have against all Persons supplying labor, materials or other services which are to be paid from or secured by the Reserve Funds or the related AccountsFunds; provided, however, that Lender may not pursue any such right or claim unless an Event of Default has occurred and remains uncured.