MASTER CASH MANAGEMENTAGREEMENT-CME Lender- - Access to Clearing Accounts (REVISIONDATE 8-14-2009)

 

(b)           If a Cash Sweep Period terminates, then upon the termination of a Cash Sweep Period and delivery by Lender to the Clearing Bank and Borrowers of a Notice of Termination of Cash Sweep Period, Borrowers shall again have joint access to the Clearing Accounts as set forth in Section 3(e)

 

6.           Disbursements from Deposit Account.

 

(a)           During a Cash Sweep Period, Lender shall have the continuing exclusive right to withdraw and apply the funds in the Deposit Account to payment of any and all debts, liabilities and obligations of Borrowers to Lender pursuant to or in connection with this Agreement, the Notes, the Security Instruments and the other Loan Documents, or to pay any expenses of the Property, in such order, proportion and priority as Lender may determine in its sole discretion.

 

(b)           Lender's right to withdraw and apply funds in the Deposit Account shall be in addition to all other rights and remedies provided to Lender under this Agreement, the Notes, the Security Instruments and the other Loan Documents and at law or in equity as a result of any Borrower’s default.

 

(c)           If Lender applies funds in the Deposit Account to the payment of any debt, liability or obligation of any one or more or all Borrowers to Lender, the application of funds from the Deposit Account shall not be deemed Lender's waiver or a cure of any default by any Borrower.

 

7.           Termination of Agreement.  This Agreement shall terminate upon the repayment in full of all of the Loans in accordance with the terms and provisions of the Loan Documents.  At Borrowers’ request and at Borrowers’ expense, Lender will take such steps as reasonably are required to terminate the Clearing Accounts Agreement and Lender’s interests in the Clearing Accounts.

 

8.           Funds as Security for the Loans.

 

(a)           As security for full payment of the Loans and timely performance of Borrowers’ Obligations, as defined in the Clearing Accounts Agreement, each Borrower hereby pledges, transfers and assigns to Lender, and grants to Lender a continuing security interest in and to the Clearing Accounts and all profits and proceeds thereof, which security interest is prior to all other liens.

 

(b)           Each Borrower agrees to execute, acknowledge, deliver, file or do, at its sole cost and expense, all other acts, assignments, notices, agreements or other instruments as Lender may reasonably require in order to perfect the foregoing security interest, pledge and assignment or otherwise to fully effectuate the rights granted to Lender by this Section.  Other than in connection with the Loans, no Borrower has sold or otherwise conveyed the Clearing Account.

 

9.             Default.  Any Borrower's and/or Manager’s failure to timely and fully perform its obligations under this Agreement shall constitute a default under this Agreement and shall constitute an automatic "Event of Default."

 

10.             Fees and Expenses.  Borrowers acknowledge and agree that they solely, jointly and severally, shall be, and shall at all times remain, liable to Lender for all fees, charges, costs and expenses in connection with the Clearing Accounts, the Deposit Account, this Agreement and the enforcement hereof, including, without limitation, the reasonable fees and expenses of legal counsel to Lender and Servicer as needed to enforce, protect or preserve the rights and remedies of Lender and/or Servicer under this Agreement.

 

11.           Miscellaneous.

 

(a)           Notices. All notices, demands, requests, consents, approvals or other communications (any of the foregoing, a “Notice”) required, permitted, or desired to be given hereunder shall be in writing sent by telefax (with answer back acknowledged) or by registered or certified mail, postage prepaid, return receipt requested, or delivered by hand or reputable overnight courier addressed to the party to be so notified at its address hereinafter set forth, or to such other address as such party may hereafter specify in accordance with the provisions of this Paragraph 11.  Any Notice shall be deemed to have been received three (3) days after the date such Notice is mailed or on the date of sending by telefax or delivery by hand if sent or delivered during business hours on a Business Day (otherwise on the next Business Day) or the next Business Day if sent by an overnight commercial courier addressed to the parties as follows:

among the parties hereto with respect thereto.  Neither this Agreement nor any terms hereof shall be waived, modified, supplemented or terminated in any manner whatsoever, except by a written instrument signed by all parties hereto and then only to the extent expressly set forth in such writing.

 

(c)           Binding Effect; Joint and Several Obligations.   The terms and provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, executors, legal representatives, successors, and permitted assigns, whether by voluntary action of the parties or by operation of law.  The foregoing shall not be construed, however, to permit assignments or transfers otherwise prohibited under the Note, the Security Instrument or the other Loan Documents.  As Borrowers consist of more than one person or entity, each shall be jointly and severally liable to perform the Borrower's obligations under this Agreement.

 

(d)           Duplicate Originals; Counterparts.  This Agreement may be executed in any number of duplicate originals, and each duplicate original shall be deemed to be an original.  This Agreement (and each duplicate original) also may be executed in any number of counterparts, each of which shall be deemed an original and all of which together shall constitute a fully executed agreement even though all signatures do not appear on the same document.

 

(e)           Unenforceable Provisions. If any provision of this Agreement is found by competent judicial authority to be invalid or unenforceable, the other provisions of this Agreement that can be carried out without the invalid or unenforceable provision will not be affected, and such invalid or unenforceable provision will be ineffective only to the extent of such invalidity or unenforceability and otherwise construed to the greatest extent possible to accomplish fairly the purposes and intentions of the parties hereto.

 

(f)           Ambiguity; Headings and Construction of Certain Terms. Neither this Agreement nor any uncertainty or ambiguity herein shall be construed or resolved against Lender by virtue of the fact that such document has originated with Lender as drafter.   The parties to this Agreement agree that this Agreement shall be construed and interpreted according to the ordinary meaning of the words used so as to accomplish fairly the purposes and intentions of the parties hereto.  Words used in this Agreement may be used interchangeably in singular or plural form, and any pronoun shall be deemed to cover all genders.  Section headings are for convenience only and shall not be used in interpretation of this Agreement. "Herein," "hereof" and "hereunder" and other words of similar import refer to this Agreement as a whole and not to any particular section, paragraph or other subdivision; and "section" refers to the entire section and not to any particular subsection, paragraph or other subdivision.  Reference to days for performance shall mean calendar days unless Business Days are expressly indicated. References to the “Note”, the “Security Instrument” and the “other Loan Documents” shall mean such original documents and all renewals, modifications and supplements to the foregoing.

 

(g)           Governing Law.  THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO ITS CONFLICTS OF LAW RULES OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW). JUDICIAL ACTIONS, SUITS OR PROCEEDINGS BROUGHT AGAINST ANY PARTY HERETO WITH RESPECT TO ITS OBLIGATIONS, LIABILITIES OR ANY OTHER MATTER UNDER OR ARISING OUT OF IN CONNECTION WITH THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREUNDER OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT RENDERED IN ANY SUCH PROCEEDINGS SHALL BE BROUGHT IN THE STATE COURT OF NEW YORK AND SHALL BE HEARD BY SUCH COURT SITTING WITHOUT A JURY.