Exhibit 10.33


 


AMENDED AND
RESTATED


ACCOUNT
CONTROL AGREEMENT


AND


SECURITY
AGREEMENT


 


December 20,
2007


 


GMH
Communities, LP, as Pledgor


GMH
Communities TRS, Inc., as Pledgor


GMH
Military Housing, LLC, as Pledgor


GMH
Military Housing Investments, LLC, as Pledgor


GMH/Benham
Military Communities LLC, as Pledgor


GMH/Phelps
Military Communities LLC, as Pledgor


GMH
Military Housing - AETC Limited Partner LLC, as Pledgor


GMH
Military Housing - Carlisle/Picatinny Limited Partner LLC, as Pledgor


GMH
Military Housing - Bliss/WSMR Limited Partner LLC, as Pledgor


GMH
Military Housing Development LLC, as Pledgor


GMH
Military Housing Management LLC, as Pledgor


GMH
AETC Management/Development LLC, as Pledgor


GMH
Northeast Housing Design/Build LLC, as Pledgor


 


Merrill Lynch, Pierce,
Fenner & Smith Incorporated, as Collateral Agent


World Financial Center


North Tower, 9th
Floor


250 Vesey Street


Attention: Kacie Carl


New York, NY  10281


Facsimile:
(212) 669-0791


 


U.S. Bank Trust National Association, as Trustee


100 Wall Street, Suite 1600


New York, New York  10005


Attention:  Corporate Trust
Administration


Telephone:  (212) 361-6184


Fax:  (212) 809-5459


 


	
   

  	
  Re:
  

  	
  Cash
  Collateral Account established by U.S. Bank Trust National Association,
  (“Trustee”) with Merrill Lynch, Pierce, Fenner & Smith Incorporated -
  Private Client Group (“Collateral Agent”) pursuant to that certain Trust
  Indenture (as amended, supplemented or otherwise modified from time to time),
  the (“Trust Indenture”), dated May 7, 2007, between the Trustee and GMH
  Communities, LP.

  



 


Ladies
and Gentlemen:


 


GMH
Communities, LP has entered into a Note Purchase Agreement with Merrill Lynch,
Pierce, Fenner & Smith Incorporated (“Merrill Lynch”) dated May 7,
2007 pursuant to which Merrill Lynch agreed to purchase the Notes, Series 2007
(the “Notes”), in the aggregate principal 


 

















 


amount
of up to $100,000,000.  Pledgors,
Trustee, and Collateral Agent previously entered into that certain Account
Control Agreement and Security Agreement dated May 5, 2007.  The Notes will be issued and secured under
the provisions of the Trust Indenture. 
As a requirement of such transactions and pursuant to the Trust
Indenture and the Pledge and Security Agreement dated May 7, 2007 by and
between the Pledgors and the Trustee (the “Pledge Agreement”), each Pledgor has
agreed to pledge certain collateral to the Trustee.  Capitalized terms used but not otherwise
defined herein shall have the meanings given to them in the Trust Indenture.


 


The
Pledgors have established three or more collateral accounts (collectively, the “Collateral
Account”) with the Collateral Agent, which Collateral Accounts are more
specifically identified on Exhibit A, which the Collateral Agent maintains
in the names of the Pledgors as the Collateral Agent’s customers.  Each Pledgor grants below to Trustee a
security interest in everything deposited by each Pledgor in the Collateral
Account.


 


As
security for the full and punctual payment and performance of all Obligations
under the Trust Indenture, the Pledge Agreement and the Notes, the Pledgors
hereby grant, pledge, hypothecate, transfer and assign to Trustee a first
priority and continuing lien on and first priority security interest in
everything deposited in the Collateral Account, including, without limitation,
all cash, all instruments submitted for deposit and all received wire transfers
to be deposited in the Collateral Account.  The Pledgors also agree that the terms of the
Pledge Agreement and all rights and remedies of the Trustee thereunder,
including without limitation, sections 6 and 7, are hereby incorporated herein
by this reference as if fully stated herein. 
This Agreement shall also constitute a control agreement perfecting the
Trustee’s security interest in the Collateral Account.


 


Pledgor
and Trustee acknowledge that the following assets (each an “Excluded Asset” and
collectively, “Excluded Assets”) are not covered by this Agreement even if
shown, for information purposes, on a periodic account statement for the
Collateral Account, because Collateral Agent is not the legal custodian of such
assets:  money market deposit account
(MMDA) balances, shares of the Merrill Lynch Institutional Funds (unless
Collateral Agent is the legal custodian of such shares), non-listed limited
partnership interests, annuities and life insurance contracts, and precious
metals.  Collateral Agent will not be
responsible for assuring that any of the Excluded Assets are not acquired with
assets from the Collateral Account.  Each
Pledgor agrees and warrants that it shall not direct or other wise instruct the
Collateral Agent to acquire any Excluded Assets with assets from the Collateral
Account.


 


Until
Trustee delivers to Collateral Agent a notice that a default or an event of
default has occurred and is continuing under the Trust Indenture (a “Notice of
Event of Default”) pursuant to this Agreement, Collateral Agent may comply with
any trading instructions from Pledgors named below without further consent by Trustee,
Pledgors will have full authority to give instructions with respect to assets
in the Collateral Account in regard to voting and other rights, and Pledgors
will have full authority to withdraw principal and income from the Collateral Account
up to and including the entire value of the Account by checks, Visa, wire
transfer, or otherwise without the consent of Trustee. Trustee may revoke
Pledgors’ authority to trade and to withdraw principal and income from the Collateral
Account by delivering a Notice of Event of Default to Collateral Agent in the
manner described in accordance with this Agreement.


 

















 


Trustee
may at any time deliver to Collateral Agent a Notice of Event of Default,
substantially in the form of Exhibit B, in the manner set forth in this
Agreement.  Delivery of the Notice of Event
of Default will be complete at 11:59 PM Eastern Standard Time on the second
business day after all of the following have occurred:  (a) an original copy of the Notice of Event
of Default has been sent by reputable overnight delivery service, or has been
hand delivered, to the Merrill Lynch office servicing the Collateral Account at
the address indicated on the most recent Collateral Account statement as of the
time of the delivery of the Notice of Event of Default, and (b) separate
copies of the Notice of Event of Default have been faxed to the attention of
the (i) Merrill Lynch  Branch
Business Manager, (ii) Financial Advisor servicing the Collateral Account,
(iii) Client Associate servicing the Collateral Account, (iv) Merrill
Lynch Branch Managing Director, (v) Merrill Lynch Branch Client Relationship
Manager, and (vi) Merrill Lynch Branch Administrative Manager, at the fax
numbers shown on Exhibit B, or at such other fax numbers as Collateral
Agent may from time to time provide to Trustee, with receipt of at least two of
those faxes confirmed by Trustee by telephone call to the addressee of the
fax.  Upon completion of delivery of the
Notice of Event of Default in the above manner, Collateral Agent will cease
complying with trading instructions from or on behalf of Pledgors with respect
to the Collateral Account, and shall in no event (a) transfer funds from
the Collateral Account to any Pledgor or any other person other than pursuant
to Trustee’s direction, (b) act on the instruction of any Pledgor or any
other person other than Trustee or (c) cause or permit withdrawals from
the Collateral Account in any manner not approved by Trustee in writing. Collateral
Agent shall have the right to restrict Pledgors’ access to the Collateral
Account upon receipt of a Notice of Event of Default even if Delivery of all such
notices is not completed as described above.


 


Collateral
Agent will not stop payment on any checks as a result of the delivery of a
Notice of Default as described above unless specifically directed to do so in
writing by the Trustee.


 


Upon
a Notice of Event of Default, the Trustee shall have the right to withdraw and
apply funds from the Collateral Account to any outstanding obligations of each
and every Pledgor under the Trust Indenture. Collateral Agent shall have no
duty or responsibility to verify that instructions received from the Trustee
are authorized pursuant to terms of any agreement between Pledgor and Trustee. Until
receipt of a Notice of an Event of Default, the Trustee shall not be permitted
to withdraw funds or cause funds to be transferred from the Collateral Account
without each Pledgor’s approval.


 


The
Collateral Agent hereby waives any right that the Collateral Agent may now or
hereafter have to a security interest, bank’s or other possessory liens, rights
to offset or other claims against the funds in the Collateral Account.


 


In
addition, the Collateral Agent acknowledges that (a) each Pledgor has
granted to Trustee a security interest in all of such Pledgor’s right, title
and interest in and to any funds from time to time on deposit in the Collateral
Account with respect to cash collateral pledged to Trustee under the Pledge
Agreement, (b) that such funds are received by the Collateral Agent in
trust for the benefit of Trustee and, except as provided below, are for application
against the Pledgors’ obligations to Trustee, and (c) that upon receipt of
a Notice of Event of Default, the Collateral Agent shall comply with Trustee’s
instructions regarding the disposition of funds in the 


 

















 


Collateral
Account in accordance with Trustee’s instructions, without the consent of any
Pledgor until the Collateral Agent receives notice from Trustee that it has
released its lien on the Collateral Account and all funds deposited therein.


 


All
bank statements in respect to the Collateral Account shall be sent to Trustee
at:


 


	
   

  	
   

  	
  U.S. Bank Trust National Association, as Trustee

  
	
   

  	
   

  	
  100
  Wall Street, Suite 1600

  
	
   

  	
   

  	
  New
  York, New York 10005

  
	
   

  	
   

  	
  Attention:
  Corporate Trust Administration

  
	
   

  	
   

  	
  Telephone:
  (212) 361-6184

  
	
   

  	
   

  	
  Fax:
  (212) 809-5459

  



 


with copies to the Pledgors
at:


 


	
   

  	
   

  	
  10 Campus Boulevard

  
	
   

  	
   

  	
  Newtown
  Square, PA 19073

  
	
   

  	
   

  	
  Attention:
  Joseph M. Macchione

  



 


This collateral account agreement shall be governed and
construed in accordance with the laws of the State of New York without regard
to conflicts of law principles and the parties hereto agree that the purposes
hereof New York shall be the Collateral Agent’s jurisdiction for purposes of Article 9
of the UCC.


 

















 


Kindly acknowledge your
agreement with the terms of this agreement by signing the enclosed copy of this
letter and returning it to the undersigned.


 


	
   

  	
   

  	
  Very
  truly yours,

  
	
   

  	
   

  	
   

  
	
   

  	
  U.S. BANK TRUST NATIONAL ASSOCIATION,

  
	
   

  	
  as
  Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Thomas E. Tabor

  
	
   

  	
   

  	
  Print
  Name: Thomas E. Tabor

  
	
   

  	
   

  	
  Title:
  Vice President

  



 


[Signature Page - Amended and Stated Account Control and Security
Agreement - Trustee]


 

















 


Agreed and acknowledged:


 


	
   

  	
  MERRILL LYNCH

  
	
   

  	
  PIERCE, FENNER & SMITH INCORPORATED –

  
	
   

  	
  Private Client Group

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Stephen Streeter

  
	
   

  	
   

  	
  Print
  Name: Stephen Streeter

  
	
   

  	
   

  	
  Title: VP

  



 


[Signature Page - Amended and Stated Account Control and Security
Agreement - Merrill]


 

















 


Agreed and acknowledged:


 


	
   

  	
  GMH COMMUNITIES, LP, a
  Delaware Limited

  
	
   

  	
  Partnership

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: GMH COMMUNITIES GP TRUST

  
	
   

  	
   

  	
  a
  Delaware Statutory Trust, its General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  J. Patrick O’Grady

  
	
   

  	
   

  	
  Print
  Name: J. Patrick O’Grady

  
	
   

  	
   

  	
  Title:
  Vice President

  



 


 


	
   

  	
  GMH COMMUNITIES TRS, INC., a Delaware

  
	
   

  	
  Corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Leslie S. Cohn

  
	
   

  	
   

  	
  Print
  Name: Leslie S. Cohn

  
	
   

  	
   

  	
  Title:
  Assistant VP

  



 


 


	
   

  	
  GMH MILITARY HOUSING, LLC, a Delaware

  
	
   

  	
  Limited Liability Company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Leslie S. Cohn

  
	
   

  	
   

  	
  Print
  Name: Leslie S. Cohn

  
	
   

  	
   

  	
  Title:
  Assistant VP

  



 


 


	
   

  	
  GMH MILITARY HOUSING INVESTMENTS LLC,

  
	
   

  	
  a Delaware Limited Liability Company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Leslie S. Cohn

  
	
   

  	
   

  	
  Print
  Name: Leslie S. Cohn

  
	
   

  	
   

  	
  Title:
  Assistant VP

  



 


 


	
   

  	
  GMH/BENHAM MILITARY COMMUNITIES LLC, a

  
	
   

  	
  Delaware Limited Liability Company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: GMH MILITARY HOUSING INVESTMENTS

  
	
   

  	
   

  	
  LLC, a Delaware
  Limited Liability Company, its

  
	
   

  	
   

  	
  Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Leslie S. Cohn

  
	
   

  	
   

  	
  Print
  Name: Leslie S. Cohn

  
	
   

  	
   

  	
  Title:
  Assistant VP

  
					



 

















 


	
   

  	
  GMH/PHELPS MILITARY COMMUNITIES LLC, a

  
	
   

  	
  Delaware Limited Liability Company

  
	
   

  	
   

  
	
   

  	
   

  	
  By:
  GMH MILITARY HOUSING INVESTMENTS

  
	
   

  	
   

  	
  LLC, a Delaware Limited
  Liability Company, its

  
	
   

  	
   

  	
  Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Leslie S. Cohn

  
	
   

  	
   

  	
  Print
  Name: Leslie S. Cohn

  
	
   

  	
   

  	
  Title:
  Assistant VP

  
					



 


 


	
   

  	
  GMH MILITARY HOUSING – AETC LIMITED

  
	
   

  	
  PARTNER LLC,
  a Delaware Limited Liability Company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:
  GMH MILITARY HOUSING INVESTMENTS

  LLC, a Delaware Limited Liability Company, its

  Manager

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Leslie S. Cohn

  	 

	
   

  	
   

  	
  Print
  Name: Leslie S. Cohn

  	 

	
   

  	
   

  	
  Title:
  Assistant VP

  	 

							



 


 


	
   

  	
  GMH MILITARY HOUSING – CARLISLE/PICATINNY

  
	
   

  	
  LIMITED PARTNER LLC,
  a Delaware Limited Liability

  
	
   

  	
  Company

  
	
   

  	
   

  
	
   

  	
   

  	
  By:
  GMH MILITARY HOUSING INVESTMENTS

  
	
   

  	
   

  	
  LLC, a Delaware Limited Liability
  Company, its

  
	
   

  	
   

  	
  Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Leslie S. Cohn

  
	
   

  	
   

  	
  Print
  Name: Leslie S. Cohn

  
	
   

  	
   

  	
  Title:
  Assistant VP

  
					



 


 


	
   

  	
  GMH MILITARY HOUSING – BLISS/WSMR

  
	
   

  	
  LIMITED PARTNER LLC,
  a Delaware Limited Liability

  
	
   

  	
  Company, a Delaware Limited Liability Company

  
	
   

  	
   

  
	
   

  	
   

  	
  By: GMH MILITARY HOUSING INVESTMENTS

  
	
   

  	
   

  	
  LLC, a Delaware
  Limited Liability Company, its

  
	
   

  	
   

  	
  Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Leslie S. Cohn

  
	
   

  	
   

  	
  Print
  Name: Leslie S. Cohn

  
	
   

  	
   

  	
  Title:
  Assistant VP

  
					



 

















 


	
   

  	
  GMH AETC MANAGEMENT/DEVELOPMENT LLC, a

  
	
   

  	
  Delaware Limited Liability Company

  
	
   

  	
   

  
	
   

  	
   

  	
  By:  GMH
  MILITARY HOUSING INVESTMENTS

  
	
   

  	
   

  	
  LLC, a Delaware
  Limited Liability Company, its

  
	
   

  	
   

  	
  Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Leslie S. Cohn

  
	
   

  	
   

  	
  Print
  Name: Leslie S. Cohn

  
	
   

  	
   

  	
  Title:
  Assistant VP

  
					



 


	
   

  	
  GMH NORTHEAST HOUSING DESIGN/BUILD LLC,

  
	
   

  	
  a Delaware Limited Liability Company

  
	
   

  	
   

  
	
   

  	
   

  	
  By: GMH MILITARY HOUSING, LLC, a
  Delaware

  
	
   

  	
   

  	
  Limited
  Liability Company, its Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Leslie S. Cohn

  
	
   

  	
   

  	
  Print
  Name: Leslie S. Cohn

  
	
   

  	
   

  	
  Title:
  Assistant VP

  
					



 


 


	
   

  	
  GMH MILITARY HOUSING MANAGEMENT LLC,

  
	
   

  	
  a Delaware Limited Liability Company

  
	
   

  	
   

  
	
   

  	
   

  	
  By: GMH MILITARY HOUSING, LLC, a
  Delaware

  
	
   

  	
   

  	
  Limited
  Liability Company, its Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Leslie S. Cohn

  
	
   

  	
   

  	
  Print
  Name: Leslie S. Cohn

  
	
   

  	
   

  	
  Title:
  Assistant VP

  
					



 


	
   

  	
  GMH MILITARY HOUSING DEVELOPMENT LLC,

  
	
   

  	
  a Delaware Limited Liability Company

  
	
   

  	
   

  
	
   

  	
   

  	
  By: GMH MILITARY HOUSING, LLC, a
  Delaware

  
	
   

  	
   

  	
  Limited
  Liability Company, its Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Leslie S. Cohn

  
	
   

  	
   

  	
  Print
  Name: Leslie S. Cohn

  
	
   

  	
   

  	
  Title:
  Assistant VP