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CASH PLEDGE AGREEMENT

Security Agreement

CASH PLEDGE AGREEMENT | Document Parties: ALEXANDERS INC | ALEXANDER'S REGO SHOPPING CENTER, INC | US BANK NATIONAL ASSOCIATION You are currently viewing:
This Security Agreement involves

ALEXANDERS INC | ALEXANDER'S REGO SHOPPING CENTER, INC | US BANK NATIONAL ASSOCIATION

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Title: CASH PLEDGE AGREEMENT
Governing Law: New York     Date: 5/4/2009
Industry: Real Estate Operations     Law Firm: Winston Strawn     Sector: Services

CASH PLEDGE AGREEMENT, Parties: alexanders inc , alexander's rego shopping center  inc , us bank national association
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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:

 

1.        Deposit Account .

(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

 

 

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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.

 

2.        Treatment of Cash Collateral; Disbursements .

(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.

 

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3.

Pledge; Remedies .

(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.

 

(b)

Borrower represents, warrants and covenants as follows:

(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

 

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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


 
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