Secured Cash Management Agreements and Secured Hedge Agreements Except as otherwise expressly set forth herein, no Cash Management Bank or Hedge Bank that obtains the benefit of the provisions of Section 8.03, the Guaranty or any Collateral by virtue of the provisions hereof or any Collateral Document shall have any right to notice of any action or to consent to, direct or object to any action hereunder or under any other Loan Document or otherwise in respect of the Collateral (including the release or impairment of any Collateral) (or to notice of or to consent to any amendment, waiver or modification of the provisions hereof or of the Guaranty or any Collateral Document) other than in its capacity as a Lender and, in such case, only to the extent expressly provided in the Loan Documents. Notwithstanding any other provision of this Article IX to the contrary, the Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Secured Obligations arising under Secured Cash Management Agreements and Secured Hedge Agreements except to the extent expressly provided herein and unless the Administrative Agent has received a Secured Party Designation Notice of such Secured Obligations, together with such supporting documentation as the Administrative Agent may request, from the applicable Cash Management Bank or Hedge Bank, as the case may be. The Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Secured Obligations arising under Secured Cash Management Agreements and Secured Hedge Agreements in the case of a Facility Termination Date.
Cash Management Arrangements Borrower shall cause all Rents to be transmitted directly by tenants of the Property into an Eligible Account (the “Clearing Account”) maintained by Borrower at a local bank selected by Borrower, which shall at all times be an Eligible Institution (the “Clearing Bank”) as more fully described in the Clearing Account Agreement. A form of tenant direction letter for such purpose is attached hereto as Schedule 1. Without in any way limiting the foregoing, all Rents received by Borrower or Manager shall be deposited into the Clearing Account within one (1) Business Day of receipt. Funds deposited into the Clearing Account shall be swept by the Clearing Bank on a daily basis into Borrower’s operating account at the Clearing Bank, unless a Cash Management Period is continuing, in which event such funds shall be swept on a daily basis into an Eligible Account at the Deposit Bank controlled by Lender (the “Deposit Account”) and applied and disbursed in accordance with this Agreement. Funds in the Deposit Account shall be invested at Lender’s discretion only in Permitted Investments. Lender will also establish subaccounts of the Deposit Account which shall at all times be Eligible Accounts (and may be ledger or book entry accounts and not actual accounts) (such subaccounts are referred to herein as “Subaccounts”). The Deposit Account and any Subaccount will be under the sole control and dominion of Lender, and Borrower shall have no right of withdrawal therefrom. Borrower shall pay for all expenses of opening and maintaining all of the above accounts.
Cash Management (a) Each Loan Party shall (i) instruct all Account Debtors of such Loan Party to remit all payments in respect of any Account on which such Account Debtor is obligated to a “P.O. Box” or “Lockbox Address” associated with a deposit account subject to a Blocked Account Agreement (each, a “Payment Account”), which remittances shall be collected by the depository institution at which such “P.O. Box” or “Lockbox Address” is maintained and deposited in such Payment Account, (ii) except with respect to Excluded Accounts, Transition Accounts and the Operating Account, cause each deposit account held by such Loan Party (including, without limitation, each Payment Account) to become subject to a Blocked Account Agreement pursuant to which (without limiting the terms thereof) all amounts on deposit and available at the close of each Business Day in such deposit account shall be swept to an account designated by the Collateral Agent (the “Collection Account”), with such sweep instructions to be irrevocable unless otherwise agreed to by the Collateral Agent and (iii) cause the Operating Account to become subject to a Blocked Account Agreement pursuant to which (without limiting the terms thereof) the Collateral Agent may, upon the occurrence and during the continuance of an Event of Default, exercise full dominion over such account and sweep all funds on deposit therein to the Collection Account. Without limiting the foregoing, all amounts received by a Borrower or any of its Subsidiaries in respect of any deposit account (or by the depository institution at which such account is held), in addition to all other cash received from any other source, shall upon receipt be deposited into such deposit account. Each Loan Party agrees that it will not cause proceeds of any deposit accounts to be otherwise redirected.
(b) All collected amounts received in the Collection Account shall be distributed and applied on a daily basis in accordance with Section 2.10(b).
(c) If any cash or cash equivalents owned by any Loan Party (other than (i) de minimis cash or cash equivalents from time to time inadvertently misapplied by any Loan Party, (ii) any funds which are held by any Borrower and any of their respective Subsidiaries on behalf of any customer in the ordinary course of business and (iii) any funds which are held by any Borrower and any of their respective Subsidiaries in an Excluded Account or, subject to the terms of this Agreement, a Transition Account, in each case, in the ordinary course of business) are deposited to any account, or held or invested in any manner, otherwise than in a deposit account subject to a Blocked Account Agreement in compliance with Section 5.12(a), then the Collateral Agent shall be entitled to require the applicable Loan Party to close such account and have all funds therein transferred to an account subject to a Blocked Account Agreement in compliance with Section 5.12(a), and to cause all future deposits to be made to such account.
(d) The Collection Account shall at all times be under the sole dominion and control of the Collateral Agent. Each Loan Party hereby acknowledges and agrees that (x) such Loan Party has no right of withdrawal from the Collection Account, (y) the funds on deposit in the Collection Account shall at all times continue to be collateral security for all of the obligations of the Loan Parties hereunder and under the other Loan Documents, and (z) the funds on deposit in the Collection Account shall be applied as provided in this Agreement. In the event that, notwithstanding the provisions of this Section 5.12, any Loan Party receives or otherwise has dominion and control of any proceeds or collections required to be transferred to the Collection Account, such proceeds and collections shall be held in trust by such Loan Party for the Collateral Agent, shall not be commingled with any of such Loan Party’s other funds or deposited in any account of such Loan Party and shall promptly be deposited into the Collection Account or dealt with in such other fashion as such Loan Party may be instructed by the Collateral Agent.
Cash Management Systems On or prior to the Closing Date, Borrowers will establish and will maintain until the Termination Date, the cash management systems described in Annex C (the “Cash Management Systems”).
Cash Management Services Sublimit Borrower may use the Revolving Line for Bank’s cash management services, which may include merchant services, direct deposit of payroll, business credit card, and check cashing services identified in Bank’s various cash management services agreements (collectively, the “Cash Management Services”), in an aggregate amount not to exceed the lesser of (A) Two Million Dollars ($2,000,000), minus (i) the Dollar Equivalent of the face amount of any outstanding Letters of Credit (including drawn but unreimbursed Letters of Credit and any Letter of Credit Reserve), and minus (ii) the FX Reduction Amount, or (B) the Revolving Line, minus (i) the sum of all outstanding principal amounts of any Advances, minus the Dollar Equivalent of the face amount of any outstanding Letters of Credit (including drawn but unreimbursed Letters of Credit and any Letter of Credit Reserve), and minus (iii) the FX Reduction Amount. Any amounts Bank pays on behalf of Borrower for any Cash Management Services will be treated as Advances under the Revolving Line and will accrue interest at the interest rate applicable to Advances.
Cash Management System On or prior to the Closing Date and until the Termination Date, Borrower will establish and maintain the cash management system described in Schedule D. All payments in respect of the Collateral shall be made to or deposited in the blocked or lockbox accounts described in Schedule D in accordance with the terms thereof.
Cash Management Account (a) During the term of the Loan, Borrower shall cause Mortgage Borrower and Senior Mezzanine Borrower to comply with Section 2.6.3 of the Mortgage Loan Agreement and Senior Mezzanine Loan Agreement (as applicable) which may require the establishment of the Cash Management Account to be held by and in trust for the benefit of Mortgage Lender. All costs and expenses for establishing and maintaining the Cash Management Account shall be paid by Mortgage Borrower.
(b) Borrower shall not cause or permit Mortgage Borrower or Operating Company to further pledge, assign or grant any security interest in the Cash Management 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 Mortgage Lender as the secured party, to be filed with respect thereto.
(c) Borrower hereby agrees that in the event that (i) the Mortgage Loan Documents require Mortgage Borrower and/or Operating Company to maintain the Cash Management Account, but (due to repayment of the Mortgage Loan, waiver of the requirement by Mortgage Lender, or otherwise) the Cash Management Account is not being maintained and (ii) the Cash Management Account is not being maintained under Section 2.6.3 of the Senior Mezzanine Loan Agreement, Borrower shall establish a cash management account and system with Lender substantially the same as that required under the Mortgage Loan Documents. If Borrower is required to deposit amounts with Lender pursuant to Article VII hereof, Borrower shall establish a cash management account and system with Lender substantially the same as that required under the Mortgage Loan Documents (and shall otherwise comply with the provisions of Section 2.6.2 of the Mortgage Loan Documents, and grant to Lender security interests in such accounts for the benefit of Lender, as if such provisions were incorporated herein for the benefit of Lender).
Banking Services and Swap Agreements Each Lender or Affiliate thereof providing Banking Services for, or having Swap Agreements with, any Loan Party or any Subsidiary or Affiliate of a Loan Party shall deliver to the Administrative Agent, promptly after entering into such Banking Services or Swap Agreements, written notice setting forth the aggregate amount of all Banking Services Obligations and Swap Agreement Obligations of such Loan Party or Subsidiary or Affiliate thereof to such Lender or Affiliate (whether matured or unmatured, absolute or contingent). In furtherance of that requirement, each such Lender or Affiliate thereof shall furnish the Administrative Agent, from time to time after a significant change therein or upon a request therefor, a summary of the amounts due or to become due in respect of such Banking Services Obligations and Swap Agreement Obligations. The most recent information provided to the Administrative Agent shall be used in determining which tier of the waterfall, contained in Section 2.18(b), such Banking Services Obligations and/or Swap Agreement Obligations will be placed.
Hedging Arrangements (a) With respect to any Receivables acquired by Seller which are denominated in a currency other than Dollars, Seller shall procure and maintain in full force and effect at all times Eligible Hedging Arrangements in an aggregate notional amount not less than the Aggregate Capital at such time.
(b) On the date of the each Incremental Purchase of a Purchaser Interest in relation to Receivables denominated in a currency other than Dollars, Seller shall procure Hedging Arrangements that include a forward exchange contract (a “Forward Exchange Contract”) contemplating settlement on the Settlement Date following the date of such Incremental Purchase.
(c) Thereafter, on each Reporting Date, Seller shall cause the Forward Exchange Contract then in effect to be replaced with a new Forward Exchange Contract or extended, with the effect in either case that the Forward Exchange Contract in effect (or committed to become effective) shall contemplate settlement on the then next following Settlement Date.
(d) All reports relating to the Receivables (whether pursuant to Section 8.5 or otherwise) and all determinations of compliance with the covenants set forth herein relating to the Receivables (whether pursuant to Section 2.6, Section 9.1(f), the definition of “Eligible Receivable” or otherwise) shall give effect to the conversion, where applicable, of the Outstanding Balance of the Receivables into Dollars. Each such conversion shall be made on the basis of the exchange rates set forth in the Forward Exchange Contract then in effect, including any Forward Exchange Contract going into effect on the date such report is issued or such determination is made.
(e) Seller hereby assigns, as part of the Related Security, Purchaser Interests in all of its right, title and interest in, to and under each Hedging Arrangement, now existing or hereafter arising, to the Agent for the benefit of the Purchasers hereunder. Seller shall take all actions reasonably requested by the Agent to perfect, evidence or more fully protect the assignment contemplated herein, including, without limitation, providing notice to each Counterparty of the interests of the Agent and the Purchasers hereunder.
Hedge Agreements On each date that any Hedge Agreement is executed by any Hedge Provider, Borrower and each other Loan Party satisfy all eligibility, suitability and other requirements under the Commodity Exchange Act (7 U.S.C. § 1, et seq., as in effect from time to time) and the Commodity Futures Trading Commission regulations.
