Exhibit 10.58
CASH PLEDGE
AGREEMENT
THIS CASH PLEDGE
AGREEMENT (this “
Agreement ”) is made as of the 10 th day of
March, 2009, by ALEXANDER’S REGO SHOPPING CENTER,
INC., a Delaware corporation (the “ Borrower
”), to and for the benefit of U.S. BANK NATIONAL
ASSOCIATION , a national banking association (“
Bank ”).
RECITALS :
A. Pursuant to that
certain Loan Agreement (the “ Loan Agreement ”)
of even date herewith by and between Bank and Borrower, Bank has
agreed to make a loan to Borrower in the aggregate principal amount
of up to $78,245,641.77 (the “ Loan ”), which is
evidenced by, among other things, that certain Amended and Restated
Promissory Note of even date herewith given by Borrower to Bank in
the stated principal amount of $78,245,641.77, as the same may be
amended, supplemented, renewed or replaced from time to time
(hereinafter called the “ Note ”). Capitalized
terms used and not defined herein have the meaning ascribed to them
in the Loan Agreement.
B.
As an inducement to the Bank to
make the Loan, and as a condition precedent thereto, Borrower has
agreed to deposit with Bank $78,245,641.77 cash, in readily
available funds (the “ Deposit ”), to serve as
cash collateral for the Obligations (as hereinafter defined) and a
source for satisfaction of the Obligations.
C. Bank
is also the holder of a first-priority mortgage of the Property
(the “ Mortgage ”) and assignment of leases and
rentals of the Property (the “ Assignment of Rents
”; the Loan Agreement, the Note, the Mortgage, the Assignment
of Rents and the other instruments, documents and agreements that
evidence and secure the Loan are collectively referred to as the
“ Loan Documents ”). The principal of and all
interest on the Loan, all of Borrower’s other obligations
under the Loan Documents, including without limitation all fees,
costs and expenses of Bank incurred in connection with the Loan are
hereinafter collectively referred to as the “
Obligations. ”
D. The
execution and delivery of this Agreement and the performance by
Borrower of its obligations hereunder is a condition precedent to
Banks’ making of the Loan.
NOW, THEREFORE, to induce Banks to
make the Loan and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, and
intending to be legally bound, Borrower hereby covenants and agrees
as follows:
(a) Prior
to or contemporaneously with the execution of this Agreement,
Borrower shall (i) establish with Bank the Deposit Account, subject
to the terms of this Agreement and the Loan Agreement, and (ii)
deposit the Deposit therein. The Deposit Account and any interest
or other income thereon or proceeds thereof (collectively, the
“ Funds ”) shall be kept on deposit at the Bank
(Bank being sometimes referred to herein as the “
Depository ”), at its office located in the
State of Minnesota or the State of
New York in an account that is insured in whole or in part by the
FDIC. Bank represents to Borrower that Bank’s head office is
in Minnesota. The Deposit Account has the account numbers set forth
in Exhibit A, as amended from time to time. The Deposit Account
shall be kept under the sole dominion and control of the
Depository. The Deposit Account shall at all time be a balance
sheet liability of Bank and shall not be a custodial account. Other
than a transfer of Funds pursuant to Section 1(c) below or the
application of the Funds in connection with a permitted prepayment
of the Loan, Borrower shall have no right to withdraw any amounts
from the Deposit Account, including any interest paid thereon,
unless and until the Obligations shall have been paid in
full.
(b) Borrower
agrees to execute and deliver such additional documents as may be
necessary from time to time to establish and maintain each Deposit
Account. If any Deposit Account or portion thereof is evidenced by
a certificate or instrument, Borrower shall deliver and, if
necessary, endorse in any manner necessary to transfer, to the Bank
any such certificates or instruments constituting, representing or
evidencing any such Deposit Account or portion thereof.
(c) The Funds
shall be maintained in the Noninterest-bearing Transaction Account,
provided that, at any time after June 10, 2009, Borrower may, from
time to time, by written notice to Bank (a “ Transfer
Notice ”), elect to transfer all or any portion of the
Funds from the Noninterest-bearing Transaction Account to the
Interest-bearing Investment Account, or vice versa, effective as of
the first (1 st ) day of next following month. To be
effective, each Transfer Notice must designate the exact dollar
amount of Funds to be so transferred and be given no earlier than
thirty (30) or later than ten (10) days prior to the proposed
effective date of transfer. Following an effective election to
transfer Funds, on the first day of the month next following the
delivery of a Transfer Notice, the specified amount of the Funds,
as the case may be, shall be so transferred by the Depository into
an Interest-bearing Investment Account or the Non-interest-bearing
Transaction Account, subject to the lien and security interest of
Bank hereunder and the other terms of this Agreement and of the
Loan Agreement. Borrower and Bank agree to cooperate fully with one
another in establishing the Interest-bearing Investment Account and
funding of the Funds therein.
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2.
Treatment of Cash Collateral;
Disbursements .
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(a) All
interest earnings and other returns on the Funds shall be payable
for the account of Borrower and added to the funds on deposit in
the Deposit Account. Borrower represents and warrants that it shall
be solely responsible for payment of state and federal income taxes
in respect of the Funds, and Bank agrees to issue Borrower in the
normal course the necessary federal tax reporting statements (e.g.,
Form 1099) for the interest earned or other returns on the Cash
Collateral. Borrower’s federal taxpayer identification number
is 22-3652541. Bank shall provide Borrower with statements of
account with respect to activity in the Deposit Account in
accordance with its customary practices. So long as no Default or
Event of Default shall have occurred and be continuing, all
interest earnings and other returns on the Deposit Account, if any,
shall be disbursed by Bank to Borrower monthly. All such
disbursements shall be made by Bank in accordance with and pursuant
to its standard operating procedures.
(b) Bank
agrees not to pledge any of its right, title or interest in and to
the Deposit Account as collateral or otherwise encumber the Deposit
Account.
(a) For good and valuable
consideration, Borrower hereby pledges to Bank and grants Bank a
security interest in any and all right, title and interest of
Borrower in and to (i) the Deposit Account, (ii) the Funds, (iii)
any cash or other property at any time and from time to time
receivable or otherwise distributable in respect of, in exchange
for, or in substitution for, the Deposit Account or any portion
thereof, including interest accruing thereon, (iv) all
replacements, substitutions, extensions, renewals and proceeds of
any and all of the foregoing, and (v) all rights and privileges of
Borrower(s) with respect to any and all of the foregoing
(collectively, the “ Cash Collateral ”), as
security for the Obligation. It is the intention of Borrower and
Bank that the security interests granted by Borrower to Bank shall
be made effective and shall be perfected to the fullest extent
possible by Bank.
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(b)
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Borrower represents, warrants and
covenants as follows:
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(i) Borrower
is a duly formed corporation organized and existing under the laws
of the state of Delaware and has full right, power and authority to
pledge, assign and grant a security interest in the Cash
Collateral;
(ii) the
execution, delivery and performance of this Agreement, the pledge
of the Cash Collateral hereunder and the exercise of the
Bank’s rights hereunder and/or under applicable law do not
and will not violate or contravene the terms of Borrower’s
charter documents or any agreement, instrument, law, rule,
regulation, or judgment binding on Borrower or its
properties;
(iii) no
registration with, or consent or approval of, or other action by or
with, any court or governmental body or authority or any other
Person is required in connection with the execution, delivery and
performance of this Agreement or the exercise of the Bank’s
rights hereunder;
(iv) this
Agreement constitutes the legal, valid and binding obligation of
Borrower enforceable in accordance with its terms;
(v) the
security interests granted hereunder to the Bank are and will
continue to be (or will be, in the case of Cash Collateral
hereafter arising) a valid first lien on, and security interest in
the Cash Collateral, superior and prior to the rights of all third
Persons, and no filing or other act is required to create and
perfect such lien and security interest (excluding the Bank’s
own actions with respect to the Collateral);
(vi) Borrower
is not currently insolvent and the transfer and pledge of the
Collateral to the Bank does not result in the insolvency of the
Borrower;
(vii) there is no
litigation, arbitration, investigation or proceeding of or before
any court, arbitrator or administrative or governmental authority
is currently pending or, to the knowledge of Borrower, threatened,
that could, if adversely determined, result in a Material Adverse
Occurrence;
(viii) Borrower has not
incurred any indebtedness, or any contingent liability, and will
not incur any indebtedness or contingent liability, that materially
adversely
affects, or will materially
adversely affect, Borrower’s ability to perform under this
Agreement;
(ix) Borrower
will defend the security interest of Bank in the Cash Collateral
against all claims and demands of all persons at any time claiming
the same or any interest therein adverse to Bank.
(x) There
are no security interests, liens or encumbrances on all or any of
the interest of the Borrower in the Cash Collateral, and there are
no deposit account control agreements or other notices, statements
or agreements creating or evidencing a security interest or lien
naming Borrower or Borrower’s interest in any of the Cash
Collateral, other than those in favor of Bank.
(xi) Borrower
will not sell or transfer an interest in or grant, permit or suffer
to exist any security interest, lien, encumbrance or other interest
in any of the Cash Collateral, except as may be granted to
Bank.
(xii) Borrower
shall perform, at its sole reasonable cost and expense, any and all
actions, and shall pay the amount of all reasonable expenses
necessary to obtain, preserve, perfect, defend and enforce the
security interest of Bank in any of the Cash Collateral, as
provided herein.
(xiii) Borrower shall not
enter into any acknowledgment or agreement that gives any other
person or entity except Lender control over, or any other security
interest, lien or title in, the Deposit Account.
(xiv) Borrower shall sign
and deliver, and cause to be signed and delivered, at the sole cost
of Borrower, any instruments furnished by the Bank, including,
without limitation, financing statements and continuation
statements, which are necessary or desirable in the reasonable
judgment of the Bank to obtain, create, maintain and perfect the
security interest hereunder and to enable the Bank to comply with
any federal or state law in order to obtain, create or perfect the
Bank’s interest in the Cash Collateral or to obtain proceeds
of the Cash Collateral.
(xv) Borrower
shall notify the Bank immediately of a material adverse change in
any matter warranted or represented by Borrower in this
Agreement.
(c) Certain Remedies .
In addition to any other rights, powers or remedies the Bank may
have under this Agreement, the other Loan Documents, applicable
law, or as a secured party under the Uniform Commercial Code, if an
Event of Default shall exist, and the Bank shall have accelerated
payment of the Loan, the Bank may, in its sole discretion, (i)
receive interest and other payments with respect to the Cash
Collateral and apply same to the Obligations, (ii) apply the Cash
Collateral to the outstanding Loan balance in accordance with the
terms of this Agreement and the other Loan Documents, or (iii)
continue to hold and maintain the Cash Collateral as additional
collateral for the Loan subject to the terms of this Agreement,
and, in its sole dis