Preview
FILED: NEW YORK COUNTY CLERK 12/02/2022 08:15 PM INDEX NO. 654609/2022
NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 12/02/2022
EXHIBIT 8
FILED: NEW YORK COUNTY CLERK 12/02/2022 08:15 PM INDEX NO. 654609/2022
NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 12/02/2022
Loan No. 31-0923243
WELLS
FARGO
DEPOSIT ACCOUNT CONTROL AGREEMENT
(Soft Lockbox)
This Deposit Account Control Agreement (this "Agreement") is made as of June 11, 2014, by and among
EROS MANAGEMENT & REALTY, LLC, a New York limited liability company ("Borrower"), WELLS
FARGO BANK, NATIONAL ASSOCIATION, as lender ("Lender") and WELLS FARGΠBANK,
NATIONAL ASSOCIATION, as depository bank ("Bank"), and sets forth the rights and obligations of the
parties with respect to the Deposit Account (defined below).
1. Establishment of Account
a. Borrower and Bank acknowledge and confirm that Borrower has established with Bank
an account with the following account number:
=" 5515 (the "Deposit Account"), and
that the Deposit Account is subject to lockbox services provided by Bank in accordance
with Section 7 of this Agreement and Bank's standard lockbox policies and procedures.
b. The Deposit Account shall be in the name of Borrower for the benefit of Lender (or in such other
name as Lender may direct in writing and agreed to by Bank).
c. The Deposit Account shall at all times have a minimum balance of $5,000 (the "Minimum
Balance").
Account"
d. The Deposit Account is an Eligible Account. As used herein, (i)"Eligible shall mean a
separate and identifiable account from allother funds held by the holding institution that is either
(A) an account or accounts maintained with a federal or state-chartered depository institution or
trust company which complies with the definition of Eligible Institution or (B) a segregated trust
account or accounts maintained with a federal or state chartered depository institution or trust
company acting in its fiduciary capacity which, in the case of a state chartered depository
institution or trust company issubject to regulations substantially similar to 12 C.F.R. §9.10(b),
having in either case a combined capital and surplus of at least $50,000,000 and subject to
supervision or examination by federal and state authority. An Eligible Account will not be
Institution"
evidenced by a certificate of deposit, passbook or other instrument and (ii) "Eligible
shall mean a depository institution or trust company insured by the Federal Deposit Insurance
Corporation, (A) the short term unsecured debt obligations or commercial paper of which are
"A-1+" "P-1"
rated at least by Standard & Poor's Ratings Group ("S&P"), by Moody's Investors
"F-1+"
Service, Inc. ("Moody's"), and by Fitch, Inc. ("Fitch") in the case of accounts in which
funds are held for thirty(30) days or less and (B) in the case of accounts in which funds are held
for more than thirty (30) days, the senior unsecured debt obligations of which are rated at least
"A" "A2"
by Fitch and S&P and by Moody's.
2. Leader's Interest in Deposit Account. Borrower represents that ithas granted, or intends to grant, a
security interest in the Deposit Account to Lender. Borrower hereby confirms the security interest
granted, or to be granted, by Borrower to Lender in allof Borrower's right, titleand interest in and to the
Deposit Account and all sums now or hereafter on deposit in or payable or withdrawable from the Deposit
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Account (the "Deposit Account Funds", which includes, if applicable, all financial assets, security
entitlements, investment property, and other property and the proceeds thereof now or at any time
hereafter held in the Deposit Account). Leader hereby appoints Bank, as agent for Lender, solely for the
purpose of perfecting the security interest of Lender in the Deposit Account and the Deposit Account
Funds.
3. Lender Control. Borrower agrees that the Deposit Account and the Deposit Account Funds are subject
to the sole dominion, control and discretion of Lender. Bank, Lender and Borrower each agree that Bank
will comply with instructions given to Bank by Lender directing disposition of funds in the Deposit
Account (collectively "Disposition Instructions") without further consent by Borrower or any other
person. Except as otherwise required by law, Bank will not agree with any third party to comply with
instructions for disposition of funds in the Deposit Account.
4. No Access to Deposit Account. Borrower acknowledges and agrees that (a) subject to the terms hereof,
neither Borrower nor any other person claiming on behalf of, or through, Borrower shall have any right,
titleor interest, whether express or implied, in the Deposit Account or to withdraw or make use of any
amounts from the Deposit Account, and (b) unless required by applicable law, Borrower shall not be
entitled to any interest on amounts held in the Deposit Account.
5. Disbursements from Deposit Account.
a. Unless otherwise instructed by Lender in writing in accordance with Section 3 above, Bank will
transfer the full amount of the collected and available balance inthe Deposit Account (after
deduction of the Minimum Balance and other amounts permitted under Section 6 hereof), on each
Business Day (defined below) by wire transfer (or other means in Bank's sole discretion) of
immediately available funds to the following account of Borrower or such other account specified
by Borrower in writing:
Bank: Bank of America
ACH ABA: 111000012
Wire ABA: 026009593
Acet Name: Wyndham Hotel Management, Inc. as agent for Eros
Management & Realty, LLC
tEDACIEl
Day"
"Business as used herein shall mean any day on which Bank is open to conduct itsregular
banking business other than a Saturday, Sunday or public holiday.
b. Unless Bank separately agrees inwriting to the contrary, Bank will have no obligation to disburse
funds or assets under thisAgreement other than by automatic standing wire. Any disposition of
funds or assets which Bank makes pursuant to this Agreement is subject to Bank's standard
policies, procedures and documentation governing the type of disposition made; provided,
however, that in no circumstances will any such disposition require Borrower's consent.
Furthermore, Bank will have a reasotiable opportunity to act upon any instructions (including
Disposition Instructions) provided pursuant to this Agreement.
c. Funds available for disbursement from the Deposit Account in accordance with this Section 5
shall not include any rents or additional rents which are paid for more than one (1) month in
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advance, which shall be retained in the Deposit Account and not released without Lender's
written consent until payment thereof is due under the applicable lease or agreement. Lender and
Borrower agree to notify Bank in writing as to the amount of any such rents and/or additional
rents that should be retained in the Deposit Account and the date such funds may be disbursed
from the Deposit Account in such manner as to afford Bank a reasonable opportunity to act upon
such notice.
6. Partial Subordination of Bank's Rights. Bank hereby subordinates to the security interest of Lender in
the Deposit Account (i) any security interest which Bank may have or acquire in the Deposit Account,
and (ii)any right which Bank may have or acquire to set off or otherwise apply any Deposit Account
Funds against the payment of any indebtedness from time to time owing to Bank from Borrower;
provided, however, that, Bank retains the right to set off against and to charge the Deposit Account for
(A) any Bank Fees (as defined in Section 9), (B) allitems deposited in and credited to such account and
subsequently returned unpaid or with respect to which Bank fails to receive final settlement and (C) all
items deposited in and credited to such account in error. If amounts in the Deposit Account are
insufficient to fully reimburse Bank for such amounts, Borrower agrees to pay such deficiency to Bank in
immediately available funds, without setoff or counterclaim, within five (5) calendar days after demand of
Bank.
7. Bank Obligations with respect to Deposit Account.
a. To the extent items deposited to a Deposit Account have been received in one or more post office
lockboxes maintained for Borrower by Bank (each, a "Lockbox") and processed by Bank for
deposit, Borrower acknowledges that Borrower has granted Lender a security interest in allsuch
items (the "Remittances"). Lender alone will have the right and abilityto instruct Bank regarding
the receipt, processing or deposit of Remittances. Borrower and Lender acknowledge and agree
that Bank's operation of each Lockbox, and the receipt, retrieval, processing and deposit of
Remittances, will at all times be governed by Bank's Master Agreement for Treasury
Management Services, and by Bank's procedures set forth on Exhibit A attached hereto.
b. The parties agree that items deposited in the Deposit Account shall be deemed to bear the valid
and legally binding endorsement of the payee and to comply with allof Bank's requirements for
the supplying of missing endorsements, now or hereafter in effect. As between Borrower and
Lender, any deposit made by or on behalf of Borrower into the Deposit Account shall be deemed
deposited into the Deposit Account when the funds in respect of such deposit shall become
collected funds. ·
c. Any item deposited by or on behalf of Borrower in the Deposit Account which is returned for
insufficient or uncollected funds will be re-deposited by Bank one time.
8. Balance Reports and Bank Statements. Borrower agrees that itshall, at itssole cost and expense, make
available to Lender information directly related to the Deposit Account, including granting Lender online
access to Borrower's treasury reporting with Bank (if any). Bank will, at the telephone or written request
of Lender, provide Lender such information by a transmission method determined by Bank, in Bank's
sole discretion, which may include granting Lender online access to Borrower's treasury reporting (if
any), and Borrower consents to the provision of such information to Lender.
9. Bank Fees. Borrower agrees to pay all Bank's fees and charges for the maintenance and administration
of the Deposit Account and forthe treasury management and other account services provided with respect
to the Deposit Account and any Lockboxes (collectively "Bank Fees"), including, but not limited to, the
fees for (a) treasury reporting (including online access thereto) provided on the Deposit Account, (b)
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funds transfer services received with respect to the Deposit Account, (c) lockbox processing services, (d)
funds advanced to cover overdrafts in the Deposit Account (but without Bank being in any way obligated
to make any such advances), (e) duplicate bank statements, (f) any treasury management service(s) that
may be required to block the Restricted Account as contemplated hereunder, and (g) the Acceptance Fee,
as described in Exhibit B attached hereto, in each case, to the extent applicable. The Bank Fees will be
paid by Bank debiting the Deposit Account on the Business Day that the Bank Fees are due, without
notice to Lender or Borrower. Ifthere are not sufficient funds in the Deposit Account to cover fully the
Bank Fees on the Business Day Bank attempts to debit them from the Deposit Account, such shortfall or
the amount of such Bank Fees will be paid by Borrower to Bank, without setoff or counterclaim, within
five (5) calendar days afterdemand from Bank.
10. Account Documentation. Except as specifically provided in this Agreement, Lender and Borrower
agree thatthe Deposit Account will be subject to, and Bank's operation of the Deposit Account will be in
accordance with, the terms of Bank's applicable deposit account agreement and other related service
documentation governing the Deposit Account (the "Account Documentation"). Borrower agrees, upon
Bank's request, to promptly execute and deliver the Account Documentation to Bank. For the avoidance
of doubt, the parties hereto acknowledge and agree that pursuant to the Account Documentation, the
Deposit Account may be subject to Bank's sweep product services. The parties agree that, in the event of
a conflict between this Agreement and the Account Documentation with respect to the Deposit Account,
thisAgreement shall control.
11. Legal Compliance.
a. If Bank at any time receives notice of the commencement of a bankruptcy case or other
insolvency or liquidation proceeding by or against Borrower, Bank will continue to comply with
itsobligations under this Agreement, except to the extent that any action required of Bank under
this Agreement is prohibited under applicable bankruptcy laws or regulations or is stayed
pursuant to the automatic stay imposed under the United States Bankruptcy Code or by order of
any court or agency.
b. Bank will comply with any legal process, legal notice or court order itreceives in relation to a
Deposit Account ifBank determines in its sole discretion that the legal process, legal notice or
court order is legallybinding on it.
c. If atany time Bank, in good faith, isin doubt as to the action itshould take under this Agreement,
Bank shall have the right (i)to commence an interpleader in the United States District Court in
the State of New York, and/or (ii)to take no further action, except, in each case, in accordance
with joint instructions from Lender and Borrower or in accordance with the final order of the
court in such action.
12. Indemnification. Borrower will indemnify, defend and hold harmless Bank and its officers, directors,
employees, and agents (collectively, the "Indemnified Parties") from and against any and all claims,
attorneys'
demands, losses, liabilities, damages, costs and expenses (including reasonable fees)
(collectively "Losses and Liabilities") Bank may suffer or incur as a result of or in connection with (a)
Bank complying with any binding legal process, legal notice or court order referred to in the immediately
preceding section of this Agreement, (b) Bank following any instruction or request of Lender, including
but not limited to any Disposition Instructions, or (c)Bank complying with itsobligations under this
Agreement, except, in each case, to the extent such Losses and Liabilities are directly caused by Bank's
gross negligence or willful misconduct.
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13. Termination. This Agreement may be terminated by Lender or Bank at any time by either of them
giving thirty (30) calendar days prior written notice of such termination to the other parties to this
Agreement at their contact addresses specified after their signatures to this Agreement; provided,
however, that this Agreement may be terminated (i)within fifteen (15) days of prior written notice from
Bank to Borrower and Lender (x) should Borrower fail to make any payment when due to Bank from
Borrower under the terms of this Agreement or (y) should Bank close the Restricted Account pursuant to
applicable law, regulation or policy, or (ii)immediately upon prior written notice from Lender to Bank on
termination or release of Lender's security interest in the Deposit Account, provided that,any notice from
Lender under clause (ii)of this sentence must contain Lender's acknowledgement of the termination or
release of its security interest in the Deposit Account. Borrower may not terminate this Agreement
without Lender's consent. Borrower's payment obligations hereunder, as well as the indemnifications
made, and the limitations on the liability of Bank accepted by Borrower and Lender under thisAgreement
will continue afterthe termination of this Agreement with respect to allthe circumstances to which they
are applicable, existing or occurring before such termination, and any liability of any party to this
Agreement, as determined under the provisions of this Agreement, with respect to acts or omissions of
such party prior to such termination will also survive such termination. Upon any termination of this
Agreement, Bank will transfer all collected and available balances (less any deductions permitted under
Section 6 hereof) in the Deposit Account on the date of such termination in accordance with Lender's
written instructions.
14. Modifications, Amendments, and Waivers. This Agreement may not be modified or amended, or any
provision thereof waived, except in a writing signed by all the parties to this Agreement.
15. Notices. All notices from one party to another must be in writing, must be delivered to Borrower, Lender
and/or Bank at their contact addresses specified after their signatures to this Agreement, or any other
address of any party communicated to the other parties in writing, and will be effective on receipt. Any
notice sent by a party to this Agreement to another party must also be sent to all other parties to this
Agreement. Bank is authorized by Borrower and Lender to act on any instructions or notices received by
Bank if (a)such instructions or notices purport to be made in the name of Lender, (b) Bank reasonably
believes that they are so made, and (c) they do not conflict with the terms of thisAgreement as such terms
may be amended from time to time, unless such conflicting instructions or notices are supported by a
court order.
16. Successors and Assigns. Lender may assign or transfer itsrights and obligations under this Agreement
to any person or entity without the prior written consent of Bank or Borrower; provided that,no transfer
will be binding upon Bank until Lender notifies the Bank of the transfer in a writing signed by the Lender
or the transferee that identifies the transferee, gives the transferee's address for communications under
this Agreement, and states that the transferee is a successor of Lender and is entitled to the benefit of
Lender's rights and has assumed all of Lender's obligations under this Agreement. Borrower may not
assign or transfer itsrights or obligations under this Agreement to any person or entity without the prior
written consent of Bank, which consent will not be unreasonably withheld or delayed, and except in
accordance with the terms of the loan documents entered into between Borrower and Lender. Bank may
not assign or transfer itsrights or obligations under this Agreement to any person or entity without the
prior written consent of Lender, which consent will not be unreasonably withheld or delayed; provided,
however, that no such consent will be required if such assignment or transfer takes place as part of a
merger, acquisition or corporate reorganization affecting Bank.
17. Governing Law. This Agreement will be governed by and be construed in accordance with the laws of
the State of New York, without regard to conflict of laws principles. This state will also be deemed to be
Bank's jurisdiction, for purposes of Article 9 of the Uniform Commercial Code as itapplies to this
Agreement.
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18. Severability. To the extent that the terms of this Agreement are inconsistent with, or prohibited or
unenforceable under, any applicable law or regulation, they will be deemed ineffective only to the extent
of such prohibition or unenforceability, and will be deemed modified and applied in a manner consistent
with such law or regulation. Any provision of this Agreement which is deemed unenforceable or invalid
in any jurisdiction will not affect the enforceability or validity of the remaining provisions of this
Agreement or the same provision in any other jurisdiction.
19. Counterparts. This Agreement may be executed in any number of counterparts each of which will be an
original with the same effect as if the signatures were on the same instrument. Delivery of an executed
counterpart of a signature page of this Agreement by telecopier or electronic image scan transmission
"pdf"
(such as a file)will be effective as delivery of a manually executed counterpart of the Agreement.
20. Entire Agreement. This Agreement, together with the Account Documentation, contains the entire and
only agreement among all the parties to this Agreement and between Bank and Borrower, on the one
hand, and Bank and Lender, on the other hand, with respect to (a) the interest of Lender in the Deposit
Account and Deposit Account Funds, and (b) Bank's obligations to Lender in connection with the
Deposit Account and Deposit Account Funds.
21. Waiver of Jury Trial. To the extent permitted by law, the parties hereto hereby waive allrights to a trial
by jury in any action or proceeding relating to the Deposit Account or thisAgreement.
22. Certain Matters Affecting Bank.
a. Bank may rely and shallbe protected in acting or refraining from acting upon any notice, request,
consent, order, certificate, report, opinion or document (including, but not limited to,
electronically confirmed facsimiles thereof) believed by itto be genuine and to have been signed
or presented by the proper party or parties. Bank shall have no obligation to review or confirm
that actions taken pursuant to the foregoing in accordance with this Agreement comply with any
other agreement or document to which itis not a party.
b. The duties and obligations of Bank set forth in this Agreement shall be determined solely by the
express provisions of this Agreement. Bank shall not be liable except for the performance for its
duties and obligations as are specifically set forth herein. No implied covenants or obligations
shall be read into this Agreement against Bank. Bank makes no express or implied
representations or warranties with respect to its obligations under this Agreement, except for
those expressly set forth herein.
c. Bank will not be liable to Borrower, Lender or any other person for any Losses and Liabilities
caused by (i) circumstances beyond Bank's reasonable control (including, without limitation,
computer malfunctions, interruptions of communication facilities,labor difficulties,acts of God,
wars, or terrorist attacks) or (ii)any other circumstances, except, in each case, to the extent that
such Losses and Liabilities are directly caused by Bank's gross negligence or willful misconduct.
d. IN NO EVENT WILL BANK BE LIABLE FOR ANY INDIRECT, SPECIAL,
CONSEQUENTIAL OR PUNITIVE DAMAGES, WHETHER OR NOT THE
LIKELIHOOD OF SUCH DAMAGES WAS KNOWN TO BANK, AND REGARDLESS
OF THE FORM OF THE CLAIM OR ACTION, OR THE LEGAL THEORY ON WHICH
IT IS BASED.
e. Any action against Bank by Borrower or Lender under or related to this Agreement must be
brought within twelve (12) months after the cause of action accrues.
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[SIGNATURE PAGES FOLLOW]
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This Agreement has been signed by the duly authorized officers or representatives of Borrower, Lender
and Bank on the date firstspecified above.
BORROWER:
EROS MANAGEMENT & REALTY, LLC,
a w rk limited liability company
By.
Name: Joginder Y. S a
Title: Manager
ADDRESS:
EROS MANAGEMENT & REALTY, LLC
35th
345 West Street
New York, New York 10001
Attention: Ronica Sharma
Facsimile No. 212- -
[Signatures continue on the following page]
[Signature Page - DACA - Wyndham Tryp]
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LENDER:
WELLS FARGO BANK, Wells Fargo Center
2"4
NATIONAL ASSOCIATION 1901 Harrison Street, Floor
Oakland, California 94612
MAC AO227-020
Attention: Commercial Mortgage Servicing
Facsimile No.: 1-866-359-5952
By:
Name:
Title:
[Signatures continue on the following page ]
[SignaturePage - DACA - Wyndham Tryp]
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BANK:
WELLS FARGO BANK, Wells Fargo Center
NATIONAL 2nd
ASSOCIATION 1901 HarrisonStreet, FlOOr
Oakland, California 94612
MAC A0227-020
Attention: Cash Management
Facsimile No.: 1-866-359-5954
By:
NamYIngrid Schor
Title: Vice President
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EXHIBIT A
Lockbox Procedures
(Capitalized terms used in this ·Exhibit A have the same meaning stated in the Agreement to
which thisExhibit A isattached.)
1. Inspections of Items. Items to be deposited in the Deposit Account will be inspected and
handled as follows:
a. Payees. An item not bearing an acceptable payee designation, as set forth in the
specifications, or a reasonable variation thereof, will not be deposited in the Deposit
Account. If a necessary endorsement of a payee other than Borrower ismissing, the item
will not be deposited into the Deposit Account.
b. Dates. An item will be deposited into the Deposit Account whether itis stale-dated, post
dated or does not bear a date.
c. Amounts. Ifthe written and numeric amounts of an item differ, the written amount shall
control over the numeric amount unless the written amount is ambiguous. If the amount
of an item cannot be determined from application of the preceding sentence, or ifthe
amount ismissing altogether, the item will not be deposited into the Deposit Account.
d. Drawer's Signatures. For an item in which the drawer's signature is missing, Bank will
deposit itinto the Deposit Account and affixa stamp requesting the drawee bank or other
payor to contact the drawer for authority to pay the item.
e. Alterations. An item which appears to Bank to have been materially altered will not be
deposited into the Deposit Account; provided, however, Bank shall have no liability to
Borrower or Lender for depositing any such item.
f. Other Language. Bank will not examine the front and backsides of items to detect
full"
handwritten or typed "paid in or similar language. Such items will be deposited into
the Deposit Account and Bank shall have no liability to Borrower or Lender for
depositing such items.
g. International Payments. An item denominated in foreign currency and drawn on a
foreign bank will not be deposited into the Deposit Account but will be submitted for
collection only. An appropriate advice will be forwarded to Borrower. Bank shall not be
responsible for fluctuation in exchange rates.
2. Processing Procedures. Items found acceptable for deposit under Section 1 above will be
accepted for deposit into the Deposit Account. Upon request by Borrower, Bank will send to
Borrower documentation in accordance with Bank's customary and standard practices for
maintenance of a Deposit Account.
3. Microfilm. All deposited items will be microfilmed in processing sequence for reference
purposes. Bank will retain such microfilm for at leasttwo years and will provide photocopies of
deposited items to Borrower within said time upon request and payment of Bank's retrieval and
photocopying charges.
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EX(BIT B
Acceptance Fee Notice
Acceptance Fee.......................................$1,000.00
This one-time fee is payable upon closing and includes the review of this Agreement and supporting
documentation. Bank may debit the Acceptance Fee from the Deposit Account on the Business Day that
the Bank Fees are due, without notice to Lender or Borrower. If there are not sufficient funds in the
Deposit Account to cover fully the Acceptance Fee on the Business Day Bank attempts to debit such fee
from the Deposit Account, such shortfall or the amount of such fee will be paid by Borrower to Bank,
without setoff or counterclaim, within five (5) calendar days after demand from Bank.
NY:1625679.6
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FILED: NEW YORK COUNTY CLERK 12/02/2022 08:15 PM INDEX NO. 654609/2022 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 12/02/2022 EXHIBIT 8 FILED: NEW YORK COUNTY CLERK 12/02/2022 08:15 PM INDEX NO. 654609/2022 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 12/02/2022 Loan No. 31-0923243 WELLS FARGO DEPOSIT ACCOUNT CONTROL AGREEMENT (Soft Lockbox) This Deposit Account Control Agreement (this "Agreement") is made as of June 11, 2014, by and among EROS MANAGEMENT & REALTY, LLC, a New York limited liability company ("Borrower"), WELLS FARGO BANK, NATIONAL ASSOCIATION, as lender ("Lender") and WELLS FARGŒ BANK, NATIONAL ASSOCIATION, as depository bank ("Bank"), and sets forth the rights and obligations of the parties with respect to the Deposit Account (defined below). 1. Establishment of Account a. Borrower and Bank acknowledge and confirm that Borrower has established with Bank an account with the following account number: =" 5515 (the "Deposit Account"), and that the Deposit Account is subject to lockbox services provided by Bank in accordance with Section 7 of this Agreement and Bank's standard lockbox policies and procedures. b. The Deposit Account shall be in the name of Borrower for the benefit of Lender (or in such other name as Lender may direct in writing and agreed to by Bank). c. The Deposit Account shall at all times have a minimum balance of $5,000 (the "Minimum Balance"). Account" d. The Deposit Account is an Eligible Account. As used herein, (i)"Eligible shall mean a separate and identifiable account from allother funds held by the holding institution that is either (A) an account or accounts maintained with a federal or state-chartered depository institution or trust company which complies with the definition of Eligible Institution or (B) a segregated trust account or accounts maintained with a federal or state chartered depository institution or trust company acting in its fiduciary capacity which, in the case of a state chartered depository institution or trust company issubject to regulations substantially similar to 12 C.F.R. §9.10(b), having in either case a combined capital and surplus of at least $50,000,000 and subject to supervision or examination by federal and state authority. An Eligible Account will not be Institution" evidenced by a certificate of deposit, passbook or other instrument and (ii) "Eligible shall mean a depository institution or trust company insured by the Federal Deposit Insurance Corporation, (A) the short term unsecured debt obligations or commercial paper of which are "A-1+" "P-1" rated at least by Standard & Poor's Ratings Group ("S&P"), by Moody's Investors "F-1+" Service, Inc. ("Moody's"), and by Fitch, Inc. ("Fitch") in the case of accounts in which funds are held for thirty(30) days or less and (B) in the case of accounts in which funds are held for more than thirty (30) days, the senior unsecured debt obligations of which are rated at least "A" "A2" by Fitch and S&P and by Moody's. 2. Leader's Interest in Deposit Account. Borrower represents that ithas granted, or intends to grant, a security interest in the Deposit Account to Lender. Borrower hereby confirms the security interest granted, or to be granted, by Borrower to Lender in allof Borrower's right, titleand interest in and to the Deposit Account and all sums now or hereafter on deposit in or payable or withdrawable from the Deposit Page 1 NY:1625679.6 FILED: NEW YORK COUNTY CLERK 12/02/2022 08:15 PM INDEX NO. 654609/2022 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 12/02/2022 Account (the "Deposit Account Funds", which includes, if applicable, all financial assets, security entitlements, investment property, and other property and the proceeds thereof now or at any time hereafter held in the Deposit Account). Leader hereby appoints Bank, as agent for Lender, solely for the purpose of perfecting the security interest of Lender in the Deposit Account and the Deposit Account Funds. 3. Lender Control. Borrower agrees that the Deposit Account and the Deposit Account Funds are subject to the sole dominion, control and discretion of Lender. Bank, Lender and Borrower each agree that Bank will comply with instructions given to Bank by Lender directing disposition of funds in the Deposit Account (collectively "Disposition Instructions") without further consent by Borrower or any other person. Except as otherwise required by law, Bank will not agree with any third party to comply with instructions for disposition of funds in the Deposit Account. 4. No Access to Deposit Account. Borrower acknowledges and agrees that (a) subject to the terms hereof, neither Borrower nor any other person claiming on behalf of, or through, Borrower shall have any right, titleor interest, whether express or implied, in the Deposit Account or to withdraw or make use of any amounts from the Deposit Account, and (b) unless required by applicable law, Borrower shall not be entitled to any interest on amounts held in the Deposit Account. 5. Disbursements from Deposit Account. a. Unless otherwise instructed by Lender in writing in accordance with Section 3 above, Bank will transfer the full amount of the collected and available balance inthe Deposit Account (after deduction of the Minimum Balance and other amounts permitted under Section 6 hereof), on each Business Day (defined below) by wire transfer (or other means in Bank's sole discretion) of immediately available funds to the following account of Borrower or such other account specified by Borrower in writing: Bank: Bank of America ACH ABA: 111000012 Wire ABA: 026009593 Acet Name: Wyndham Hotel Management, Inc. as agent for Eros Management & Realty, LLC tEDACIEl Day" "Business as used herein shall mean any day on which Bank is open to conduct itsregular banking business other than a Saturday, Sunday or public holiday. b. Unless Bank separately agrees inwriting to the contrary, Bank will have no obligation to disburse funds or assets under thisAgreement other than by automatic standing wire. Any disposition of funds or assets which Bank makes pursuant to this Agreement is subject to Bank's standard policies, procedures and documentation governing the type of disposition made; provided, however, that in no circumstances will any such disposition require Borrower's consent. Furthermore, Bank will have a reasotiable opportunity to act upon any instructions (including Disposition Instructions) provided pursuant to this Agreement. c. Funds available for disbursement from the Deposit Account in accordance with this Section 5 shall not include any rents or additional rents which are paid for more than one (1) month in Page 2 NY:1625679.6 FILED: NEW YORK COUNTY CLERK 12/02/2022 08:15 PM INDEX NO. 654609/2022 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 12/02/2022 advance, which shall be retained in the Deposit Account and not released without Lender's written consent until payment thereof is due under the applicable lease or agreement. Lender and Borrower agree to notify Bank in writing as to the amount of any such rents and/or additional rents that should be retained in the Deposit Account and the date such funds may be disbursed from the Deposit Account in such manner as to afford Bank a reasonable opportunity to act upon such notice. 6. Partial Subordination of Bank's Rights. Bank hereby subordinates to the security interest of Lender in the Deposit Account (i) any security interest which Bank may have or acquire in the Deposit Account, and (ii)any right which Bank may have or acquire to set off or otherwise apply any Deposit Account Funds against the payment of any indebtedness from time to time owing to Bank from Borrower; provided, however, that, Bank retains the right to set off against and to charge the Deposit Account for (A) any Bank Fees (as defined in Section 9), (B) allitems deposited in and credited to such account and subsequently returned unpaid or with respect to which Bank fails to receive final settlement and (C) all items deposited in and credited to such account in error. If amounts in the Deposit Account are insufficient to fully reimburse Bank for such amounts, Borrower agrees to pay such deficiency to Bank in immediately available funds, without setoff or counterclaim, within five (5) calendar days after demand of Bank. 7. Bank Obligations with respect to Deposit Account. a. To the extent items deposited to a Deposit Account have been received in one or more post office lockboxes maintained for Borrower by Bank (each, a "Lockbox") and processed by Bank for deposit, Borrower acknowledges that Borrower has granted Lender a security interest in allsuch items (the "Remittances"). Lender alone will have the right and abilityto instruct Bank regarding the receipt, processing or deposit of Remittances. Borrower and Lender acknowledge and agree that Bank's operation of each Lockbox, and the receipt, retrieval, processing and deposit of Remittances, will at all times be governed by Bank's Master Agreement for Treasury Management Services, and by Bank's procedures set forth on Exhibit A attached hereto. b. The parties agree that items deposited in the Deposit Account shall be deemed to bear the valid and legally binding endorsement of the payee and to comply with allof Bank's requirements for the supplying of missing endorsements, now or hereafter in effect. As between Borrower and Lender, any deposit made by or on behalf of Borrower into the Deposit Account shall be deemed deposited into the Deposit Account when the funds in respect of such deposit shall become collected funds. · c. Any item deposited by or on behalf of Borrower in the Deposit Account which is returned for insufficient or uncollected funds will be re-deposited by Bank one time. 8. Balance Reports and Bank Statements. Borrower agrees that itshall, at itssole cost and expense, make available to Lender information directly related to the Deposit Account, including granting Lender online access to Borrower's treasury reporting with Bank (if any). Bank will, at the telephone or written request of Lender, provide Lender such information by a transmission method determined by Bank, in Bank's sole discretion, which may include granting Lender online access to Borrower's treasury reporting (if any), and Borrower consents to the provision of such information to Lender. 9. Bank Fees. Borrower agrees to pay all Bank's fees and charges for the maintenance and administration of the Deposit Account and forthe treasury management and other account services provided with respect to the Deposit Account and any Lockboxes (collectively "Bank Fees"), including, but not limited to, the fees for (a) treasury reporting (including online access thereto) provided on the Deposit Account, (b) Page 3 NY:1625679.6 FILED: NEW YORK COUNTY CLERK 12/02/2022 08:15 PM INDEX NO. 654609/2022 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 12/02/2022 funds transfer services received with respect to the Deposit Account, (c) lockbox processing services, (d) funds advanced to cover overdrafts in the Deposit Account (but without Bank being in any way obligated to make any such advances), (e) duplicate bank statements, (f) any treasury management service(s) that may be required to block the Restricted Account as contemplated hereunder, and (g) the Acceptance Fee, as described in Exhibit B attached hereto, in each case, to the extent applicable. The Bank Fees will be paid by Bank debiting the Deposit Account on the Business Day that the Bank Fees are due, without notice to Lender or Borrower. Ifthere are not sufficient funds in the Deposit Account to cover fully the Bank Fees on the Business Day Bank attempts to debit them from the Deposit Account, such shortfall or the amount of such Bank Fees will be paid by Borrower to Bank, without setoff or counterclaim, within five (5) calendar days afterdemand from Bank. 10. Account Documentation. Except as specifically provided in this Agreement, Lender and Borrower agree thatthe Deposit Account will be subject to, and Bank's operation of the Deposit Account will be in accordance with, the terms of Bank's applicable deposit account agreement and other related service documentation governing the Deposit Account (the "Account Documentation"). Borrower agrees, upon Bank's request, to promptly execute and deliver the Account Documentation to Bank. For the avoidance of doubt, the parties hereto acknowledge and agree that pursuant to the Account Documentation, the Deposit Account may be subject to Bank's sweep product services. The parties agree that, in the event of a conflict between this Agreement and the Account Documentation with respect to the Deposit Account, thisAgreement shall control. 11. Legal Compliance. a. If Bank at any time receives notice of the commencement of a bankruptcy case or other insolvency or liquidation proceeding by or against Borrower, Bank will continue to comply with itsobligations under this Agreement, except to the extent that any action required of Bank under this Agreement is prohibited under applicable bankruptcy laws or regulations or is stayed pursuant to the automatic stay imposed under the United States Bankruptcy Code or by order of any court or agency. b. Bank will comply with any legal process, legal notice or court order itreceives in relation to a Deposit Account ifBank determines in its sole discretion that the legal process, legal notice or court order is legallybinding on it. c. If atany time Bank, in good faith, isin doubt as to the action itshould take under this Agreement, Bank shall have the right (i)to commence an interpleader in the United States District Court in the State of New York, and/or (ii)to take no further action, except, in each case, in accordance with joint instructions from Lender and Borrower or in accordance with the final order of the court in such action. 12. Indemnification. Borrower will indemnify, defend and hold harmless Bank and its officers, directors, employees, and agents (collectively, the "Indemnified Parties") from and against any and all claims, attorneys' demands, losses, liabilities, damages, costs and expenses (including reasonable fees) (collectively "Losses and Liabilities") Bank may suffer or incur as a result of or in connection with (a) Bank complying with any binding legal process, legal notice or court order referred to in the immediately preceding section of this Agreement, (b) Bank following any instruction or request of Lender, including but not limited to any Disposition Instructions, or (c)Bank complying with itsobligations under this Agreement, except, in each case, to the extent such Losses and Liabilities are directly caused by Bank's gross negligence or willful misconduct. Page 4 NY:1625679.6 FILED: NEW YORK COUNTY CLERK 12/02/2022 08:15 PM INDEX NO. 654609/2022 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 12/02/2022 13. Termination. This Agreement may be terminated by Lender or Bank at any time by either of them giving thirty (30) calendar days prior written notice of such termination to the other parties to this Agreement at their contact addresses specified after their signatures to this Agreement; provided, however, that this Agreement may be terminated (i)within fifteen (15) days of prior written notice from Bank to Borrower and Lender (x) should Borrower fail to make any payment when due to Bank from Borrower under the terms of this Agreement or (y) should Bank close the Restricted Account pursuant to applicable law, regulation or policy, or (ii)immediately upon prior written notice from Lender to Bank on termination or release of Lender's security interest in the Deposit Account, provided that,any notice from Lender under clause (ii)of this sentence must contain Lender's acknowledgement of the termination or release of its security interest in the Deposit Account. Borrower may not terminate this Agreement without Lender's consent. Borrower's payment obligations hereunder, as well as the indemnifications made, and the limitations on the liability of Bank accepted by Borrower and Lender under thisAgreement will continue afterthe termination of this Agreement with respect to allthe circumstances to which they are applicable, existing or occurring before such termination, and any liability of any party to this Agreement, as determined under the provisions of this Agreement, with respect to acts or omissions of such party prior to such termination will also survive such termination. Upon any termination of this Agreement, Bank will transfer all collected and available balances (less any deductions permitted under Section 6 hereof) in the Deposit Account on the date of such termination in accordance with Lender's written instructions. 14. Modifications, Amendments, and Waivers. This Agreement may not be modified or amended, or any provision thereof waived, except in a writing signed by all the parties to this Agreement. 15. Notices. All notices from one party to another must be in writing, must be delivered to Borrower, Lender and/or Bank at their contact addresses specified after their signatures to this Agreement, or any other address of any party communicated to the other parties in writing, and will be effective on receipt. Any notice sent by a party to this Agreement to another party must also be sent to all other parties to this Agreement. Bank is authorized by Borrower and Lender to act on any instructions or notices received by Bank if (a)such instructions or notices purport to be made in the name of Lender, (b) Bank reasonably believes that they are so made, and (c) they do not conflict with the terms of thisAgreement as such terms may be amended from time to time, unless such conflicting instructions or notices are supported by a court order. 16. Successors and Assigns. Lender may assign or transfer itsrights and obligations under this Agreement to any person or entity without the prior written consent of Bank or Borrower; provided that,no transfer will be binding upon Bank until Lender notifies the Bank of the transfer in a writing signed by the Lender or the transferee that identifies the transferee, gives the transferee's address for communications under this Agreement, and states that the transferee is a successor of Lender and is entitled to the benefit of Lender's rights and has assumed all of Lender's obligations under this Agreement. Borrower may not assign or transfer itsrights or obligations under this Agreement to any person or entity without the prior written consent of Bank, which consent will not be unreasonably withheld or delayed, and except in accordance with the terms of the loan documents entered into between Borrower and Lender. Bank may not assign or transfer itsrights or obligations under this Agreement to any person or entity without the prior written consent of Lender, which consent will not be unreasonably withheld or delayed; provided, however, that no such consent will be required if such assignment or transfer takes place as part of a merger, acquisition or corporate reorganization affecting Bank. 17. Governing Law. This Agreement will be governed by and be construed in accordance with the laws of the State of New York, without regard to conflict of laws principles. This state will also be deemed to be Bank's jurisdiction, for purposes of Article 9 of the Uniform Commercial Code as itapplies to this Agreement. Page 5 NY:1625679.6 FILED: NEW YORK COUNTY CLERK 12/02/2022 08:15 PM INDEX NO. 654609/2022 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 12/02/2022 18. Severability. To the extent that the terms of this Agreement are inconsistent with, or prohibited or unenforceable under, any applicable law or regulation, they will be deemed ineffective only to the extent of such prohibition or unenforceability, and will be deemed modified and applied in a manner consistent with such law or regulation. Any provision of this Agreement which is deemed unenforceable or invalid in any jurisdiction will not affect the enforceability or validity of the remaining provisions of this Agreement or the same provision in any other jurisdiction. 19. Counterparts. This Agreement may be executed in any number of counterparts each of which will be an original with the same effect as if the signatures were on the same instrument. Delivery of an executed counterpart of a signature page of this Agreement by telecopier or electronic image scan transmission "pdf" (such as a file)will be effective as delivery of a manually executed counterpart of the Agreement. 20. Entire Agreement. This Agreement, together with the Account Documentation, contains the entire and only agreement among all the parties to this Agreement and between Bank and Borrower, on the one hand, and Bank and Lender, on the other hand, with respect to (a) the interest of Lender in the Deposit Account and Deposit Account Funds, and (b) Bank's obligations to Lender in connection with the Deposit Account and Deposit Account Funds. 21. Waiver of Jury Trial. To the extent permitted by law, the parties hereto hereby waive allrights to a trial by jury in any action or proceeding relating to the Deposit Account or thisAgreement. 22. Certain Matters Affecting Bank. a. Bank may rely and shallbe protected in acting or refraining from acting upon any notice, request, consent, order, certificate, report, opinion or document (including, but not limited to, electronically confirmed facsimiles thereof) believed by itto be genuine and to have been signed or presented by the proper party or parties. Bank shall have no obligation to review or confirm that actions taken pursuant to the foregoing in accordance with this Agreement comply with any other agreement or document to which itis not a party. b. The duties and obligations of Bank set forth in this Agreement shall be determined solely by the express provisions of this Agreement. Bank shall not be liable except for the performance for its duties and obligations as are specifically set forth herein. No implied covenants or obligations shall be read into this Agreement against Bank. Bank makes no express or implied representations or warranties with respect to its obligations under this Agreement, except for those expressly set forth herein. c. Bank will not be liable to Borrower, Lender or any other person for any Losses and Liabilities caused by (i) circumstances beyond Bank's reasonable control (including, without limitation, computer malfunctions, interruptions of communication facilities,labor difficulties,acts of God, wars, or terrorist attacks) or (ii)any other circumstances, except, in each case, to the extent that such Losses and Liabilities are directly caused by Bank's gross negligence or willful misconduct. d. IN NO EVENT WILL BANK BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, WHETHER OR NOT THE LIKELIHOOD OF SUCH DAMAGES WAS KNOWN TO BANK, AND REGARDLESS OF THE FORM OF THE CLAIM OR ACTION, OR THE LEGAL THEORY ON WHICH IT IS BASED. e. Any action against Bank by Borrower or Lender under or related to this Agreement must be brought within twelve (12) months after the cause of action accrues. Page 6 NY:1625679.6 FILED: NEW YORK COUNTY CLERK 12/02/2022 08:15 PM INDEX NO. 654609/2022 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 12/02/2022 [SIGNATURE PAGES FOLLOW] Page 7 NY:1625679.6 FILED: NEW YORK COUNTY CLERK 12/02/2022 08:15 PM INDEX NO. 654609/2022 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 12/02/2022 This Agreement has been signed by the duly authorized officers or representatives of Borrower, Lender and Bank on the date firstspecified above. BORROWER: EROS MANAGEMENT & REALTY, LLC, a w rk limited liability company By. Name: Joginder Y. S a Title: Manager ADDRESS: EROS MANAGEMENT & REALTY, LLC 35th 345 West Street New York, New York 10001 Attention: Ronica Sharma Facsimile No. 212- - [Signatures continue on the following page] [Signature Page - DACA - Wyndham Tryp] FILED: NEW YORK COUNTY CLERK 12/02/2022 08:15 PM INDEX NO. 654609/2022 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 12/02/2022 LENDER: WELLS FARGO BANK, Wells Fargo Center 2"4 NATIONAL ASSOCIATION 1901 Harrison Street, Floor Oakland, California 94612 MAC AO227-020 Attention: Commercial Mortgage Servicing Facsimile No.: 1-866-359-5952 By: Name: Title: [Signatures continue on the following page ] [SignaturePage - DACA - Wyndham Tryp] FILED: NEW YORK COUNTY CLERK 12/02/2022 08:15 PM INDEX NO. 654609/2022 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 12/02/2022 BANK: WELLS FARGO BANK, Wells Fargo Center NATIONAL 2nd ASSOCIATION 1901 HarrisonStreet, FlOOr Oakland, California 94612 MAC A0227-020 Attention: Cash Management Facsimile No.: 1-866-359-5954 By: NamYIngrid Schor Title: Vice President FILED: NEW YORK COUNTY CLERK 12/02/2022 08:15 PM INDEX NO. 654609/2022 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 12/02/2022 EXHIBIT A Lockbox Procedures (Capitalized terms used in this ·Exhibit A have the same meaning stated in the Agreement to which thisExhibit A isattached.) 1. Inspections of Items. Items to be deposited in the Deposit Account will be inspected and handled as follows: a. Payees. An item not bearing an acceptable payee designation, as set forth in the specifications, or a reasonable variation thereof, will not be deposited in the Deposit Account. If a necessary endorsement of a payee other than Borrower ismissing, the item will not be deposited into the Deposit Account. b. Dates. An item will be deposited into the Deposit Account whether itis stale-dated, post dated or does not bear a date. c. Amounts. Ifthe written and numeric amounts of an item differ, the written amount shall control over the numeric amount unless the written amount is ambiguous. If the amount of an item cannot be determined from application of the preceding sentence, or ifthe amount ismissing altogether, the item will not be deposited into the Deposit Account. d. Drawer's Signatures. For an item in which the drawer's signature is missing, Bank will deposit itinto the Deposit Account and affixa stamp requesting the drawee bank or other payor to contact the drawer for authority to pay the item. e. Alterations. An item which appears to Bank to have been materially altered will not be deposited into the Deposit Account; provided, however, Bank shall have no liability to Borrower or Lender for depositing any such item. f. Other Language. Bank will not examine the front and backsides of items to detect full" handwritten or typed "paid in or similar language. Such items will be deposited into the Deposit Account and Bank shall have no liability to Borrower or Lender for depositing such items. g. International Payments. An item denominated in foreign currency and drawn on a foreign bank will not be deposited into the Deposit Account but will be submitted for collection only. An appropriate advice will be forwarded to Borrower. Bank shall not be responsible for fluctuation in exchange rates. 2. Processing Procedures. Items found acceptable for deposit under Section 1 above will be accepted for deposit into the Deposit Account. Upon request by Borrower, Bank will send to Borrower documentation in accordance with Bank's customary and standard practices for maintenance of a Deposit Account. 3. Microfilm. All deposited items will be microfilmed in processing sequence for reference purposes. Bank will retain such microfilm for at leasttwo years and will provide photocopies of deposited items to Borrower within said time upon request and payment of Bank's retrieval and photocopying charges. NY:1625679.6 FILED: NEW YORK COUNTY CLERK 12/02/2022 08:15 PM INDEX NO. 654609/2022 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 12/02/2022 EX(BIT B Acceptance Fee Notice Acceptance Fee.......................................$1,000.00 This one-time fee is payable upon closing and includes the review of this Agreement and supporting documentation. Bank may debit the Acceptance Fee from the Deposit Account on the Business Day that the Bank Fees are due, without notice to Lender or Borrower. If there are not sufficient funds in the Deposit Account to cover fully the Acceptance Fee on the Business Day Bank attempts to debit such fee from the Deposit Account, such shortfall or the amount of such fee will be paid by Borrower to Bank, without setoff or counterclaim, within five (5) calendar days after demand from Bank. NY:1625679.6