Exhibit 10.21
CLEARING ACCOUNT AGREEMENT
This CLEARING ACCOUNT AGREEMENT (the "Agreement") is entered into this
1st day of November, 2004, by and among NORTH FORK BANK, having an address at
000 Xxxxxxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000 (the "Clearing Bank"),
CEDAR-FRANKLIN VILLAGE LLC, a Delaware limited liability company, having an
address at c/o Cedar Shopping Centers Partnership, L.P., 00 Xxxxx Xxxxxx Xxxxxx,
Xxxxx 000, Xxxx Xxxxxxxxxx, XX 00000 (the "Borrower"), and EUROHYPO AG, NEW YORK
BRANCH, the New York branch of a German banking corporation, having an address
at 1114 Avenue of the Americas, Xxxxxx-Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000
(together with its successors and assigns, the "Lender").
RECITALS
A. Lender has made a mortgage loan in the amount of $43,500,000.00 (the
"Loan") to Borrower pursuant to that certain Loan Agreement of even date
herewith between Borrower and Lender (the "Loan Agreement"). Capitalized terms
used in this Agreement, unless defined in this Agreement, shall have the meaning
ascribed to such term in the Loan Agreement.
B. Borrower and Lender have agreed that all Rents be deposited with a
financial institution acceptable to Lender directly into an account designated
by and established for the benefit of Lender, and Borrower and Lender desire to
retain Clearing Bank to provide the services described herein.
NOW, THEREFORE, in consideration of the mutual premises contained
herein and for other good and valuable consideration the sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:
1. Defined Terms. In addition to capitalized terms defined elsewhere in
this Agreement, the following capitalized terms shall have the respective
meanings set forth below:
"Available Funds" shall mean funds on deposit in the Clearing Account
reasonably determined by the Clearing Bank to constitute collected and available
funds, by reference to Clearing Bank's then current availability schedule and
Regulation CC of the Board of Governors of the Federal Reserve System, as
amended and interpreted from time to time.
"Business Day" shall mean any day other than a Saturday, Sunday or any
day on which commercial banks in New York, New York are authorized or required
to close.
"Cash Management Agreement" shall mean that certain Cash Management
Agreement of even date herewith by and among Borrower, Manager, Lender and Cash
Management Bank.
"Cash Management Bank" shall mean PNC Bank, National Association.
"Clearing Account Address" shall mean the following address to which
Tenants shall pay directly all sums due under such Tenant's lease pursuant to
this Agreement and the Cash Management Agreement:
X.X. Xxx 0000
Xxxxxxxxxx, Xxx Xxxx
00000-0000
"Clearing Account" shall have the meaning specified in Paragraph 2(c)
below.
"Designee" shall mean the Servicer or other agent of Lender designated
by, and acting for the benefit of, Lender. Lender shall provide written notice
of such designation to Borrower and Clearing Bank.
"Eligible Account" shall mean a separate and identifiable account from
all other funds held by the holding institution that is either (i) 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 (ii)
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, is subject to regulations substantially similar to 12 C.F.R. ss.
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 evidenced by a certificate of
deposit, passbook or other instrument.
"Eligible Institution" shall mean a depository institution or trust
company insured by the Federal Deposit Insurance Corporation the short term
unsecured debt obligations or commercial paper of which are rated at least A-1
by Standard & Poor's Ratings Group, P-1 by Xxxxx'x Investors Service, Inc. and
F-1+ by Fitch, Inc. in the case of accounts in which funds are held for thirty
(30) days or less (or, in the case of accounts in which funds are held for more
than thirty (30) days, the long term unsecured debt obligations of which are
rated at least "AA" by Fitch and S&P and "Aa2" by Moody's). Notwithstanding the
foregoing, North Fork Bank shall be deemed an Eligible Institution for the
purposes of this Agreement so long as it maintains its ratings in effect as of
the date hereof and so long as it is not placed "On Watch for Downgrade" by any
Rating Agency.
"Obligations" shall mean any and all debts, liabilities and obligations
of Borrower to Lender pursuant to or in connection with the Loan, including
without limitation, the indebtedness evidenced by the Note and any and all debt,
liabilities and obligations of Borrower under the Loan Documents.
"Person" shall mean any individual, corporation, partnership, limited
liability company, joint venture, estate, trust, unincorporated association, any
other entity, any federal, state, county or municipal government or any bureau,
department or agency thereof and any fiduciary acting in such capacity on behalf
of any of the foregoing.
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2. Duties of the Clearing Bank.
(a) Clearing Bank shall receive and process any deposits presented or
wire transfer made by Borrower, Manager or any of their respective agents for
deposit into the Clearing Account pursuant to the Cash Management Agreement
(such receipts being collectively referred to herein as "Over-the-Counter
Receipts").
(b) Clearing Bank shall receive and process all wire transfers and all
mail sent to the Clearing Account Address and open such mail daily in order to
examine, remove instruments of payment of money contained therein and deposit
such wire transfers and instruments in the Clearing Account. Checks, money
orders or other instruments for the payment of money which may be handled as
cash items by Federal Reserve Banks (such receipts being collectively referred
to herein as the "Receivables Receipts," and, together with the Over-the-Counter
Receipts, the "Receipts"), if found by Clearing Bank in its discretion to be in
proper order, shall be endorsed by Clearing Bank and deposited daily in the
Clearing Account. Borrower hereby designates Clearing Bank as its attorney in
fact to endorse Borrower's name on such Receivables Receipts for deposit into
the Clearing Account and Borrower shall be liable to Clearing Bank as a general
endorser thereon. Mail received by Clearing Bank that contains cash will be
processed by creating a deposit ticket listing the cash received, which cash
will be deposited into the Clearing Account. Any other items received by
Clearing Bank, including items not denominated in U.S. dollars, instruments
which are not made payable to the name of the Property, Borrower or Manager or a
reasonable abbreviation thereof, or which are otherwise not in proper order or
should receive Manager's special attention, shall be forwarded by Clearing Bank
to Manager immediately without processing.
(c) In order to further secure the performance by Borrower of the
Obligations and as a material inducement for Lender to make the Loan, (i)
Borrower has established and will maintain a collection account with Clearing
Bank (the "Clearing Account," Account Number 3124062559), into which Clearing
Bank shall deposit all Receipts received by it with respect to the Property,
(ii) the Clearing Account shall be entitled "Cedar-Franklin Village LLC Clearing
Account, as Mortgagor, for the benefit of Mortgagee," and (iii) Clearing Bank
shall hold amounts deposited in the Clearing Account for the benefit of Lender
and shall designate such amounts on its books as being held for the benefit of
Lender. The Clearing Account shall be assigned the federal tax identification
number of Borrower.
(d) Clearing Bank shall send a daily credit advice to Borrower or, at
Borrower's direction, Manager, which credit advice shall specify the amount of
each Receipt deposited into the Clearing Account on such date. The Clearing Bank
shall send a monthly statement to Borrower, Manager and Lender, which monthly
statement shall specify the credits and charges to the Clearing Account for the
previous calendar month. Clearing Bank shall establish Lender and Designee as
users of Clearing Bank's e-Cash Management Connection web product in accordance
with Clearing Bank's standard procedures. Upon written request of Lender or
Designee, (i) Clearing Bank shall send to Lender or Designee, as applicable,
either (x) copies of the daily credit advices and any other advices or
statements furnished by Clearing Bank to Borrower and Manager hereunder or (y)
information on Clearing Account balances, the aggregate amount of withdrawals or
transfers from the Clearing Account and other similar information via the
electronic data transfer system on a daily basis, and (ii) Clearing Bank shall
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advise Lender or Designee, as applicable, of the amount of Available Funds and
shall deliver to Lender or Designee, as applicable, copies of all statements and
other information concerning the Clearing Account as Lender or Designee shall
reasonably request.
(e) Clearing Bank shall create a record of Receipts (other than those
Receipts comprised of cash) by photocopying or imaging each check, money order
or other instrument processed and any accompanying invoices or other
documentation (if enclosed). Furthermore, Clearing Bank shall maintain a
microfilm or other record of each Receipt which is processed by Clearing Bank in
accordance with Clearing Bank's customary procedures. Clearing Bank shall also
forward to Borrower or, at Borrower's direction, Manager on a daily basis copies
of the supporting adding machine tapes or similar balancing reports,
photocopies, envelopes and unprocessed remittances.
(f) Items deposited with Clearing Bank which are returned for
insufficient or uncollected funds shall be re-deposited by Clearing Bank a
second time. Items returned unpaid the second time for whatever reason shall be
processed in accordance with Clearing Bank's customary procedures and the
provisions this Agreement.
(g) Without limitation on Lender's other rights hereunder, Clearing
Bank agrees to comply with written instructions originated by Lender directing
disposition of funds in the Clearing Account, without further consent by
Borrower, Manager or any other Person.
3. Transfer of Funds in Clearing Account.
(a) Unless and until the Closing Bank receives written instructions
from Lender to the contrary, Clearing Bank shall transfer all Available Funds on
deposit in the Clearing Account as follows:
(i) On each Business Day, Clearing Bank shall transfer, by
wire transfer or via the ACH System, all Available Funds to the account
established pursuant to the terms of the Cash Management Agreement at
the Cash Management Bank (the "Lockbox Account") as described in
Exhibit A attached hereto.
(ii) Simultaneously with any transfer to the Cash Management
Bank, Clearing Bank shall send (or make available via electronic
information reporting system) to the Cash Management Bank, Manager,
Lender, Designee and Borrower, via telecopy, a wire transfer or ACH
System advice setting forth the amount transferred.
4. Fees.
(a) Clearing Bank shall first charge other accounts maintained at
Clearing Bank by Borrower for the amount of any exchange, collection,
processing, transfer, wire, postage, returned items, chargebacks for uncollected
checks deposited in the Clearing Account, services charges, returned checks
fees, other charges to which Clearing Bank may be entitled for servicing and
maintaining the Cash Management Address and Clearing Account or other
out-of-pocket expenses incurred by Clearing Bank, as determined by Clearing Bank
from time to time (collectively, "Charges"). In the event that there are not
sufficient collected funds in such other accounts to pay the Charges then
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Clearing Bank may charge the Clearing Account for such Charges. In the event
that there are insufficient collected funds on deposit in the Clearing Account,
Borrower agrees upon demand to pay to Clearing Bank the amount of such Charges.
(b) Clearing Bank shall debit the Clearing Account by the amount of its
Charges on a monthly basis or shall include its fees in an account analysis
statement.
5. Termination.
(a) Clearing Bank may resign from its obligations under this Agreement
at any time after thirty (30) days' prior written notice to the other parties
hereto. Upon such resignation, Borrower shall designate a successor to Clearing
Bank promptly after receipt of notice of resignation by Clearing Bank, which
successor shall be subject to the approval of Lender, and cause such designated
successor promptly to assume the obligations of Clearing Bank hereunder. It
shall be an Event of Default if a successor to Clearing Bank acceptable to
Lender has not been designated or has not assumed the obligations of Clearing
Bank prior to the effective date of Clearing Bank's resignation.
(b) Borrower may not unilaterally terminate this Agreement or close any
of the accounts established hereunder. Clearing Bank shall not cause or permit
any of such accounts to be closed by Borrower unless it has received prior
written notice from Lender.
6. Warranties and Liabilities of the Clearing Bank.
(a) The parties hereto agree that Clearing Bank's sole responsibility
to Lender, Borrower or any third party for errors made by Clearing Bank in
processing any Receipt shall be to process a correcting entry in the next
regularly scheduled processing of the work after receipt of notification from
Lender, Borrower, Manager or any third party of such error. Clearing Bank shall
not be liable to Lender, Borrower, Manager or any third party if Lender,
Borrower, Manager or any third party fails to give timely advice to Clearing
Bank of any error alleged to have been made by Clearing Bank in the processing
of a Receipt. The foregoing shall not relieve Clearing Bank of any liability
arising out of any failure to perform its duties in accordance herewith.
(b) Clearing Bank shall make every reasonable effort to deliver the
amounts and items referred to in Paragraph 3 above by the mutually agreed upon
time but does not guarantee a specific delivery time. Accordingly, Clearing
Bank's sole responsibility to Lender or any third party with respect to the time
of delivery of such amounts and items shall be to deliver such amounts and items
as close to the mutually agreed upon time as may be reasonably practicable.
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7. Liens, Set-off. Clearing Bank and Borrower each acknowledges and
agrees that the Clearing Account is subject to the sole dominion, control and
discretion of Lender and Designee and neither Borrower nor Manager shall have
any right to close such account or right of withdrawal or transfer with respect
to such account except with the prior written consent of Lender. Borrower shall
be entitled to request and receive any information about the Clearing Account
that it shall reasonably request from time to time. Clearing Bank waives any
lien, security interest or right to offset any claim against Borrower which it
might have against any account maintained hereunder unless and until Borrower's
obligations to Lender are satisfied in full with written confirmation of same by
Lender; provided, however, that Clearing Bank retains the right to (a) charge
the Clearing Account for any of Clearing Bank's Charges, fees and expenses
provided for herein for which Borrower is responsible as provided in Paragraph 4
hereof and (b) charge the Clearing Account for all items deposited in and
credited to the Clearing Account and subsequently returned unpaid or with
respect to which Clearing Bank fails to receive final settlement. Nothing
contained in this Agreement shall be deemed to prohibit Clearing Bank from
complying with applicable law in the event it is served with any legal process
with respect to the Clearing Account.
8. Matters Concerning Borrower and Manager.
(a) Borrower hereby pledges, transfers and assigns, and grants to
Lender, as additional security for the payment and performance of the Note and
the Obligations of Borrower, a first priority security interest in and to, and a
general first lien upon, subject to Clearing Bank's right to set-off with
respect to the Clearing Bank's fees and expenses as described in Paragraph 7
above, (i) the Clearing Account and all of Borrower's right, title and interest
in and to all cash, property, instruments or rights transferred to or deposited
in the Clearing Account from time to time by Borrower or on behalf of Borrower
in accordance with the provisions of this Agreement and (ii) any and all
proceeds of the foregoing. This Agreement and the pledge, assignment and grant
of security interest made hereby shall secure payment of all amounts payable by
Borrower to Lender under the Note and the other Obligations of Borrower.
Borrower acknowledges and agrees that Clearing Bank is acting at the direction
of, and as the agent of, Lender in connection with the subject matter of this
Agreement. Borrower further agrees to execute, acknowledge, deliver, file or do
at its sole cost and expense, all other acts, assignments, notices, agreements
or other instruments as Lender may reasonably require in order to effectuate,
assure, convey, secure, assign, transfer and convey unto Lender any of the
rights granted by this section.
(b) Borrower shall provide Manager with a copy of this Agreement, as
the same may be amended from time to time, and shall cause Manager to abide by
all of the terms and provisions hereof applicable to Borrower and/or Manager.
9. Successors and Assigns; Assignments. This Agreement shall bind and
inure to the benefit of and be enforceable by Clearing Bank, Borrower and Lender
and their respective successors and permitted assigns. Lender shall have the
right to assign or transfer its rights under this Agreement in connection with
any assignment of the Loan and the Loan Documents. Any assignee or transferee of
Lender shall be entitled to all the benefits afforded to Lender under this
Agreement provided that such assignee or transferee thereof agrees in writing to
be bound by the terms of this Agreement. Borrower shall not have the right to
assign or transfer its rights or obligations under this Agreement without the
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prior written consent of Lender, and any attempted assignment without such
consent shall be null and void. Clearing Bank shall have the right to assign or
transfer its rights and obligations hereunder in connection with a merger,
consolidation or sale of all or substantially all of the assets of Clearing Bank
provided that the transferee thereof agrees in writing to be bound by the terms
of this Agreement.
10. Amendment. This Agreement may be amended from time to time only by
a written agreement executed by all of the parties hereto.
11. Notices. All notices, demands, requests, consents, approvals or
other communications (any of the foregoing, a "Notice") required, permitted, or
desired to be given hereunder shall be in writing sent by telefax (with answer
back acknowledged) or by registered or certified mail, postage prepaid, return
receipt requested, or delivered by hand or reputable overnight courier addressed
to the party to be so notified at its address hereinafter set forth, or to such
other address as such party may hereafter specify in accordance with the
provisions of this Paragraph 11. Any Notice shall be deemed to have been
received three (3) days after the date such Notice is mailed or on the date of
sending by telefax (if sender shall have confirmation thereof and a hard copy is
also sent by mail) or delivery by hand if sent or delivered during business
hours on a Business Day (otherwise on the next Business Day) or the next
Business Day if sent by an overnight commercial courier addressed to the parties
as follows:
If to Lender: Eurohypo AG, New York Branch
1114 Avenue of the Americas
Xxxxxx-Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Head of Portfolio Operations
Fax No.: (000) 000-0000
With a copy to: Eurohypo AG, New York Branch
1114 Avenue of the Americas
Xxxxxx-Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Legal Director
Fax No.: (000) 000-0000
With a copy to: Cadwalader, Xxxxxxxxxx & Xxxx LLP
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 000000
Attention: Xxxxxxx X. Xxxxxxxxx, Esq.
Facsimile No.: (000) 000-0000
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If to Borrower: Cedar-Franklin Village LLC
c/o Cedar Shopping Centers Partnership, L.P.
00 Xxxxx Xxxxxx Xxxxxx
Xxxxx 000
Xxxx Xxxxxxxxxx, XX 00000
Attention:
Facsimile No.
With a copy to: Stroock & Stroock & Xxxxx LLP
000 Xxxxxx Xxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxxx
Fax No.: (000) 000 0000
If to Clearing Bank: North Fork Bank
000 Xxxxxxxxxxx Xxxx Xxxxxxxx, Xxx Xxxx
Attention: Xxxxx Xxxxxxxxx
Facsimile No. (000) 000-0000
With a copy to: North Fork Bank
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx
Attn: Xxxx Xxxxxxx
Facsimile No. (000) 000-0000
12. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ITS
CONFLICTS OF LAWS PRINCIPLES. ANY ACTION ARISING OUT OF OR CONCERNING THIS
AGREEMENT SHALL BE HEARD BY A JUDGE SITTING WITHOUT A JURY AND SHALL BE HEARD
EXCLUSIVELY IN STATE COURT OF THE STATE OF NEW YORK. THE PARTIES HERETO SUBMIT
TO THE EXCLUSIVE JURISDICTION OF THE STATE COURT OF THE STATE OF NEW YORK FOR
PURPOSES OF ALL LEGAL PROCEEDINGS ARISING UNDER OR CONCERNING THIS AGREEMENT.
REGARDLESS OF ANY PROVISION IN ANY OTHER AGREEMENT, FOR PURPOSES OF THE UCC (AS
DEFINED IN THE LOAN AGREEMENT), CLEARING BANK AGREES THAT NEW YORK SHALL BE
DEEMED TO BE CLEARING BANK'S JURISDICTION (WITHIN THE MEANING OF SECTION 9-304
OF THE UCC).
13. Certain Matters Affecting Clearing Bank.
(a) Clearing Bank may rely and shall be protected in acting or
refraining from acting upon any written notice (including but not limited to
electronically confirmed facsimiles of such notice) reasonably believed by it
acting in good faith and in the exercise of reasonable judgment to be genuine
and to have been signed or presented by the proper party or parties in the
normal course of business.
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(b) The duties and obligations of Clearing Bank hereunder shall be
determined solely by the express provisions of this Agreement. Clearing Bank
shall not be liable except for the performance of its duties and obligations as
are specifically set forth in this Agreement, and no implied covenants or
obligations shall be read into this Agreement against Clearing Bank.
(c) Borrower and Lender agree that Clearing Bank shall not be liable
for any damage or loss to them for any delay or failure of performance arising
out of the acts or omissions of any third parties, including, but not limited
to, various communication services, courier services, the Federal Reserve
System, any other bank or any third party who may be affected by funds
transactions, fire, mechanical, computer or electrical failures or other
unforeseen contingencies, strikes or any similar or dissimilar cause beyond the
reasonable control of Clearing Bank. In no event shall Clearing Bank be liable
for lost profits or consequential, special, indirect, direct, or punitive
damages even if Clearing Bank has been advised of the possibility of the
foregoing.
(d) Borrower and its respective successors, assigns and legal
representatives shall forever indemnify Clearing Bank and hold it entirely
harmless from and against any and all claims, demands, losses, charges,
expenses, legal fees, costs and liabilities of whatever kind or description, and
lawsuits or legal proceedings, including, without limitation, fees and
disbursements of legal counsel incurred by Clearing Bank in any action or
proceeding between Borrower or Lender and Clearing Bank or between Clearing Bank
and any third party or otherwise, without regard to the merit or lack of merit
thereof, arising out of or related in any way to the matters set forth in, or
the services to be provided pursuant to the terms of this Agreement.
(e) Notwithstanding anything to the contrary contained herein, Clearing
Bank shall not be liable for any action taken or omitted by it in good faith
except for Clearing Bank's willful misconduct or gross negligence. Clearing Bank
may execute any of its powers and perform any of its duties hereunder directly
or through agents or attorneys and may consult with counsel, accountants and
other skilled persons to be selected and retained by it at the cost of Borrower.
Clearing Bank shall not be liable for any act or omission done or omitted to be
done by Clearing Bank in reliance upon any instruction, direction or
certification from Lender or its Servicer received by Clearing Bank and without
gross negligence, bad faith or willful or reckless misconduct of Clearing Bank.
In the event that Clearing Bank shall be uncertain as to its duties or rights
hereunder or shall receive instructions, claims or demands from any party hereto
which, in its opinion, conflict with any of the provisions of this Agreement, it
shall be entitled to refrain from taking any action and its sole obligation
shall be to either (i) keep safely all property held in escrow or (ii) deposit
same with Lender.
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IN WITNESS WHEREOF, the parties hereto have executed this
Clearing Account Agreement in several counterparts (each of which shall be
deemed an original) as from the date first above written.
BORROWER:
CEDAR-FRANKLIN VILLAGE LLC,
a Delaware limited liability company
By:
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Name: Xxxxxx X. Xxxxxx
Title: Vice President
LENDER:
EUROHYPO AG, NEW YORK BRANCH, the New York branch
of a German banking corporation
By:
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Name:
Title:
By:
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Name:
Title:
CLEARING BANK:
NORTH FORK BANK
By:
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Name:
Title:
EXHIBIT A
Cash Management Bank And Lockbox Account
Cash Management Bank: PNC Bank National Association
Lockbox Account: ABA #: 000000000
Attn.: (____) ________________________
Fax: (____) ________________________
Account of: Cedar-Franklin Village LLC, as mortgagor,
for the benefit of Eurohypo AG, New York
Branch, as mortgagee
Account #: [_____]
