ACCOUNT AND CONTROL AGREEMENT
This ACCOUNT AND CONTROL AGREEMENT, is made as of February 13,
2004 (this AGREEMENT), by and among GERMAN AMERICAN CAPITAL CORPORATION, a
Maryland corporation (LENDER), having an office at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, 731 OFFICE ONE LLC, a Delaware limited liability company (BORROWER),
having an address for notice purposes c/o Alexander's Inc., 000 Xxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 and XX XXXXXX XXXXX, a New York banking organization
(CASH MANAGEMENT BANK), having an office at 0 Xxx Xxxx Xxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000.
WHEREAS, Borrower is a party to that certain Loan and Security
Agreement, dated as of the date hereof, (as amended, supplemented or otherwise
modified from time to time, the Loan Agreement), pursuant to which Borrower
agreed to establish and maintain certain Collateral Accounts (as defined herein)
as further collateral for a loan (the LOAN) from Lender to Borrower;
WHEREAS, as required by the Loan Agreement, and in order to
further effectuate the security interest granted to Lender thereunder, Borrower
established pursuant to the Loan Agreement, the Collateral Accounts with Cash
Management Bank and, pursuant to the Loan Agreement, has granted to Lender a
perfected first priority security interests therein, which Collateral Accounts
are described on SCHEDULE 1A and 1B attached hereto; and
WHEREAS, as a condition to making the Loan, Lender is
requiring Borrower and Cash Management Bank to deliver this Agreement to further
effectuate the terms of the Loan Agreement.
NOW, THEREFORE, in consideration of foregoing premises, the
establishment of the Collateral Accounts, Ten Dollars ($10.00) paid in hand and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. DEFINITIONS. Capitalized terms used but not otherwise defined herein
shall have the respective meanings given thereto in the Loan Agreement, unless
otherwise expressly provided herein. All references to sections shall be deemed
to be references to sections of this Agreement, unless otherwise indicated. In
the event that the Uniform Commercial Code as in effect in the State of New York
is revised subsequent to the date hereof, all references herein to sections of
the UCC shall be deemed to be references to the successor provisions and
requirements.
APPROVED BANK shall mean a bank or other financial institution which
has a minimum long-term unsecured debt rating of at least "A" and a
minimum short-term unsecured debt rating of at least "A-1" by each of
the Rating Agencies (one of which must be S&P), or if any such bank or
other financial institution is not rated by all the Rating Agencies,
then a minimum long-term rating of at least "A" and a minimum
short-term unsecured debt rating of at least "A-1", or their respective
equivalents, by two of the Rating Agencies, but in any event one of the
two Rating Agencies shall be S&P.
COLLATERAL ACCOUNTS shall mean the accounts specified on SCHEDULES 1A
and 1B hereto and any other account established by the Cash Management
Bank pursuant to and in accordance with the provisions of this
Agreement or the Loan Agreement.
ELIGIBLE ACCOUNT shall mean (i) a segregated trust account or accounts
maintained with the corporate trust department of a federal depository
institution or state-chartered depository institution subject to
regulations regarding fiduciary funds on deposit similar to Title 12 of
the Code of Federal Regulations Section 9.10(b) which, in either case,
has corporate trust powers, acting in its fiduciary capacity or (ii) a
segregated account maintained at an Approved Bank.
PERMITTED INVESTMENTS shall mean the following, subject to
qualifications hereinafter set forth:
(i) obligations of, or obligations guaranteed as to principal
and interest by, the U.S. government or any agency or instrumentality
thereof, when such obligations are backed by the full faith and credit
of the United States of America;
(ii) federal funds, unsecured certificates of deposit, time
deposits, banker's acceptances, and repurchase agreements having
maturities of not more than 365 days of any bank, the short-term debt
obligations of which are rated A-1+ (or the equivalent) by each of the
Rating Agencies, it being understood that the A-1+ benchmark rating and
other benchmark ratings in this Agreement are intended to be the
ratings, or the equivalent of ratings, issued by S&P
(iii) deposits that are fully insured by the Federal Deposit
Insurance Corp.;
(iv) debt obligations that are rated AA (or the equivalent)
by each of the Rating Agencies;
(v) commercial paper rated A - 1+ (or the equivalent) by
each of the Rating Agencies;
(vi) investment in money market funds rated AAm or AAm - G
(or the equivalent) by each of the Rating Agencies; and
(vii) such other investments as to which Lender shall have
received a Rating Agency Confirmation.
Notwithstanding the foregoing, PERMITTED INVESTMENTS (i) shall exclude
any security with the S&P's "r" symbol (or any other Rating Agency's
corresponding symbol) attached to the rating (indicating high
volatility or dramatic fluctuations in their expected returns because
of market risk), as well as any mortgage-backed securities and any
security of the type commonly known as "strips"; (ii) shall not have
maturities in excess of one year; (iii) shall be limited to those
instruments that have a predetermined fixed dollar of principal due at
maturity that cannot vary or change; and (iv) shall exclude any
investment where the right to receive principal and interest derived
from the underlying investment provides a yield to maturity in excess
of 120% of the yield to maturity at par
2
of such underlying investment. Interest may either be fixed or
variable, and any variable interest must be tied to a single interest
rate index plus a single fixed spread (if any), and move
proportionately with that index. No investment shall be made which
requires a payment above par for an obligation if the obligation may be
prepaid at the option of the issuer thereof prior to its maturity. All
investments shall mature or be redeemable upon the option of the holder
thereof on or prior to the earlier of (x) three months from the date of
their purchase or (y) the Business Day preceding the day before the
date such amounts are required to be applied hereunder.
UCC shall mean the Uniform Commercial Code as in effect from time to
time in the State of New York.
2. ESTABLISHMENT AND MAINTENANCE OF THE COLLATERAL ACCOUNTS. The Cash
Management Bank hereby confirms and agrees that:
a. DEPOSIT ACCOUNT. It has established the Collection Account
identified on SCHEDULE 1A hereto in the name specified in
SCHEDULE 1A (such account(s) being referred to herein as the
DEPOSIT ACCOUNT). The Collection Account has been established
and shall be maintained by Cash Management Bank as a "deposit
account" as such term is defined in Section 9-102(a)(29) of
the UCC.
b. SECURITIES ACCOUNTS.
i. It has established the Holding Account and the
Sub-Accounts as required pursuant to the Loan
Agreement, identified on SCHEDULE 1B hereto in the
names specified in SCHEDULE 1B (such account and the
sub-accounts referred to in SCHEDULE 1B hereof being
referred to herein as the SECURITIES ACCOUNTS). The
Holding Account and the Sub-Accounts will be, if
established pursuant to the Loan Agreement,
maintained by Cash Management Bank as one or more
"securities accounts" as such term is defined in
Section 8-501(a) of the UCC. The Sub-Accounts (i) may
be ledger or book entry accounts and need not be
actual accounts, (ii) shall be linked to the Holding
Account and (iii) shall be an Eligible Account to
which certain funds shall be allocated and from which
disbursements shall be made pursuant to the terms of
this Agreement. Except for any funds credited to the
Deposit Account, all property delivered to the Cash
Management Bank pursuant to the Loan Agreement and
all Permitted Investments shall be credited to the
Holding Account or one of the Sub-Accounts on the
Business Day following any deposit into the Deposit
Account. Each item of property (whether investment
property, financial asset, security, instrument, cash
or otherwise) credited to the Securities Accounts
shall be treated as a "financial asset" within the
meaning of Section 8-102(a)(9) of the UCC. All
securities or other property underlying any
"financial assets" (as defined in Section 8-102(a)(9)
of the UCC) credited to the Securities Accounts shall
be registered in the name of Cash Management Bank,
indorsed to Cash Management Bank or indorsed in blank
or credited to a securities account in the name of
the
3
Cash Management Bank. In no case shall any financial
asset credited to the Collateral Accounts be
registered in the name of Borrower, payable to the
order of Borrower or specially endorsed to Borrower
except to the extent the foregoing have been
specially endorsed to Cash Management Bank or in
blank.
c. CHANGES TO ACCOUNTS. It shall not change the name or account
number of any Collateral Account without the express written
consent of the Lender.
3. PERMITTED INVESTMENTS. Any amounts held in any of the Securities
Accounts shall be invested, liquidated and reinvested in Permitted Investments
and disbursed as directed in writing by Lender in accordance with this Agreement
(or in accordance with such other instructions as Borrower may from time to time
direct, which other instructions from Borrower shall be countersigned by Lender,
unless an Event of Default shall have occurred and be continuing, in which event
all amounts held in any of the Securities Accounts shall be invested, liquidated
and reinvested at Lender's direction in Lender's sole discretion); provided,
however, that the maturity of an adequate portion of the Permitted Investments
on deposit in the Securities Accounts shall be no later than the Business Day
immediately preceding the date on which such funds are required to be withdrawn
therefrom pursuant to this Agreement and no Permitted Investment shall be
liquidated at a loss at the direction of Borrower except to the extent necessary
to make a required payment to Lender on a Payment Date. All Permitted
Investments shall identify Lender as the secured party having the benefit of a
collateral assignment of such Permitted Investments. Amounts held in the
Securities Accounts may be commingled for purposes of purchasing Permitted
Investments and Cash Management Bank shall maintain a record of amounts
allocated to each Securities Account. In no event shall Lender or Cash
Management Bank have any responsibility or liability for the types of
investments that Borrower may direct Lender to direct Cash Management Bank to
make, nor shall they have any duty or responsibility to confirm that the same
are in fact Permitted Investments.
4. CONTROL OF ACCOUNTS.
a. RIGHTS OF LENDER. Borrower hereby irrevocably authorizes
Lender to exercise any and all rights of Borrower in respect
of the Collateral Accounts and to give Cash Management Bank
instructions, directions and entitlement orders in respect of
the Collateral Accounts as Lender shall deem necessary or
desirable in order to effectuate the provisions of this
Agreement and the Loan Agreement, provided that such
instructions are in accordance with the terms and provisions
hereof and of the Loan Agreement. Borrower hereby irrevocably
authorizes and instructs Cash Management Bank to execute any
such instructions, directions or entitlement orders Cash
Management Bank receives from Lender. Cash Management Bank
shall, subject to the terms of this Agreement, treat Lender as
entitled to exercise the rights that comprise any financial
asset credited to the Collateral Accounts. Cash Management
Bank acknowledges that it has received instructions to
transfer, and Cash Management Bank covenants that it shall
transfer, on a daily basis, all collected funds held in the
Collection Account to the Holding Account. Borrower is
responsible for monitoring the services provided hereunder and
shall notify Cash Management Bank of any errors within thirty
(30)
4
calendar days after receipt of any report, statement or other
material containing or reflecting the error including an
account analysis statement, or such greater time period as may
be required by law.
b. LENDER CONTROL AND PERFECTION. Notwithstanding any other
provision of this Agreement, in addition to and not in
limitation of Lender's other rights: (i) with respect to each
Collateral Account that is a "securities account" within the
meaning of Section 8-501 of the UCC (including without
limitation the Securities Accounts and to the extent that
notwithstanding the intention of the parties the Deposit
Account is determined to be a securities account, the Deposit
Account), the Cash Management Bank shall comply with all
"entitlement orders" (as defined in the UCC) issued by the
Lender in accordance with the provisions of Section 4.a.
hereof without further consent by the Borrower or any other
Person; (ii) with respect to each Collateral Account that is a
"deposit account" within the meaning of Section 9-102(a)(29)
of the UCC (including, without limitation, the Deposit Account
and to the extent that notwithstanding the intention of the
parties any of the Securities Accounts are determined to be a
deposit account, the Securities Accounts), the Cash Management
Bank shall comply with all instruction issued by the Lender in
accordance with the provisions of Section 4.a. hereof
directing the disposition of funds in such accounts without
further consent by the Borrower or any other Person; and (iii)
except for the Borrower's right to select Permitted
Investments to the extent specified in Section 3 hereof, the
Cash Management Bank shall not honor any request of Borrower
for the withdrawal, transfer or other disposition of any
funds, investment property or other assets on deposit or
credited to any Collateral Account without the express prior
consent of Lender. The Cash Management Bank has not and will
not without Lender's prior express written consent enter into
any agreement or understanding with any other Person relating
to the Collateral Accounts. For purposes of perfecting the
Lender's security interest, the Cash Management Bank confirms
that any property (including, without limitation, Permitted
Investments) held by it is held as agent for the Lender.
c. DESIGNATION OF SERVICER. Borrower and Cash Management Bank
each hereby acknowledge that Lender has appointed and
designated GMAC Commercial Mortgage Corporation (SERVICER), as
agent of Lender, to administer and service the Loan and to
exercise Lender's rights under this Agreement and the Loan
Agreement. Lender may appoint and designate a replacement
servicer to execute Lender's rights with respect to the
Collateral Accounts at any time by delivering a notice of such
replacement, on or prior to the effective date of such
replacement, to Borrower and Cash Management Bank and Borrower
and Cash Management Bank shall recognize such replacement.
5. ACCOUNT FEES; WAIVER OF SET-OFF AND LIENS; ADVERSE CLAIMS.
a. ACCOUNT FEES. The Borrower hereby agrees to pay the Cash
Management Bank reasonable compensation for the services to be
rendered hereunder, as such fees are identified in SCHEDULE 2.
Borrower shall separately pay the fees and expenses
5
identified in the invoice and Cash Management Bank shall not
charge the Collateral Accounts for such fee.
b. WAIVER OF CLAIMS. In no event shall Cash Management Bank
obtain whether by agreement, operation of law or otherwise a
security interest in any of the Collateral Accounts or any
security entitlement or funds credited thereto, and to the
extent permitted by applicable law, Cash Management Bank
hereby agrees that such security interest shall be null and
void. To the extent any such security interest arises by
operation of law and cannot be waived, the Cash Management
Bank hereby subordinates such security interest to the
security interest of the Lender. Cash Management Bank hereby
waives all existing and future claims, rights of set-off and
liens, including, without limitation, banker's liens, against
the Collateral Accounts and all items and proceeds thereof
that come into Cash Management Bank's possession in connection
with the Collateral Accounts and all securities entitlements
or funds credited thereto; provided, that Cash Management Bank
shall have the right to charge the Collateral Accounts for (i)
all items deposited in, and credited to, the Collateral
Accounts after the date hereof and subsequently returned to
Cash Management Bank unpaid; (ii) overdrafts in the Collateral
Accounts; (iii) interest on overdrafts in the Collateral
Accounts; and (iv) interest and fees on any items deposited in
the Collateral Accounts and returned unpaid. If sufficient
funds are not available in the account, the Cash Management
Bank shall look to the Borrower for immediate reimbursement,
and the Borrower shall comply. Upon the indefeasible repayment
in full of the Loan and all Indebtedness and the termination
of this Agreement, the foregoing waiver of claims, rights of
set-off and liens shall terminate.
c. ADVERSE CLAIMS. Except for the claims and interest of Lender
and of Borrower in the Collateral Accounts, Cash Management
Bank does not know of any claim to, or interest in, the
Collateral Accounts or in any "financial asset" (as defined in
Section 8-102(a) of the UCC) credited thereto. If any Person
asserts any lien, encumbrance or adverse claim (including any
writ, garnishment, judgment, warrant of attachment, execution
or similar process) against the Collateral Accounts or in any
funds or financial asset carried therein, Cash Management Bank
shall promptly notify Lender and Borrower thereof and may
thereafter respond to such service in any manner authorized by
law or regulation, without further obligation to Lender or
Borrower.
6. DEPOSITS; ACCOUNTS RECORDS.
a. DEPOSITS. Cash Management Bank shall receive and process, on a
daily basis, any deposits presented or sent to Cash Management
Bank for deposit in the Collection Account. Cash Management
Bank shall send to Servicer and Borrower: (i) copies of daily
credit advices specifying all amounts deposited in the
Collateral Accounts on a monthly basis as described in Section
6(b) below, (ii) any other advices or reports typically
furnished by Cash Management Bank in connection with accounts
similar to the Collateral Accounts and (iii) any other reports
reasonably requested by Borrower, Lender and Servicer.
6
b. MONTHLY STATEMENTS. Cash Management Bank shall maintain a
record of all transfers to and from the Accounts and furnish
to Borrower, Lender and Servicer (i) a monthly statement of
the Collateral Accounts and (ii) promptly following request by
either Borrower, Lender and Servicer therefor, interim reports
on transfers to and from the Collateral Accounts.
c. NOTICE OF INSUFFICIENCY. Cash Management Bank shall notify
Borrower, Lender and Servicer promptly in the event that there
are insufficient funds on deposit in the Collection Account or
the Holding Account to make any of the transfers or
withdrawals directed by Lender or Servicer.
7. CASH MANAGEMENT BANK NOT LIABLE; INDEMNITY.
a. NO LIABILITY. The Cash Management Bank shall not be liable for
acts or omissions caused by events beyond its reasonable
control including, without limitation, fire, casualty, failure
of equipment, telecommunications or data processing services,
lockout, strike, unavoidable accidents, acts of God, acts of
terrorists, riots, war or the issuance or operation of any
adverse governmental law, ruling, regulation, order or decree,
or an emergency that prevents the Cash Management Bank from
operating normally, except for its own gross negligence or
willful misconduct. The Cash Management Bank may rely and
shall be protected in acting or refraining from acting upon
any notice (including, without limitation, electronically
confirmed facsimiles of such notice) reasonably believed by
the Cash Management Bank in good faith to be genuine and to
have been signed or presented by the proper party or parties.
b. INDEMNITY. Borrower shall indemnify, defend and save harmless
the Cash Management Bank from all claims, actions, suits,
losses, damages, costs, expenses or liability of any nature
and type (including the reasonable fees and expenses of
outside counsel) arising out of or in connection with its
execution and performance of this Agreement, except to the
extent that such loss, liability or expense is due to the
gross negligence or willful misconduct of the Cash Management
Bank, its directors, officers, agents or employees. Anything
in this Agreement to the contrary notwithstanding, in no event
shall the Cash Management Bank be entitled to or liable for
special, indirect or consequential loss or damage of any kind
whatsoever (including but not limited to lost profits). Cash
Management Bank hereby acknowledges that any right of
indemnification from Borrower shall be subject and subordinate
in all respects to Borrower's obligations to Lender in
connection with the Loan.
8. TERMINATION.
a. TERMINATION BY CASH MANAGEMENT BANK. Cash Management Bank may
resign from its responsibilities of this Agreement upon thirty
(30) days' prior written notice to Lender and Borrower,
provided, that in no event shall Cash Management Bank be
released of its obligations hereunder unless and until a
substitute Cash Management Bank has been designated and
assumed the
7
obligations of Cash Management Bank under this Agreement in
writing. Borrower shall use its commercially reasonable
efforts to designate such a Cash Management Bank promptly
after receipt of notice of resignation from Cash Management
Bank and to cause such designated successor promptly to assume
the obligations of Cash Management Bank hereunder. Any such
replacement Cash Management Bank must be approved by Lender in
writing, which, provided such replacement Cash Management Bank
is an Approved Bank and executes and delivers to Lender a
replacement Account Agreement, such approval shall not be
unreasonably withheld, conditioned or delayed. If the Cash
Management Bank has resigned and a successor to the Cash
Management Bank has not been designated within thirty (30)
days after the date of the Cash Management Bank's resignation,
all funds in the Cash Management Account, checks payable to
the Cash Management Account and other materials received by
Cash Management Bank shall be delivered to Lender, or pursuant
to Lender's instructions, and the Cash Management Bank shall
have no further obligation act hereunder.
b. TERMINATION BY BORROWER AND LENDER. This Agreement may be
terminated upon delivery to Cash Management Bank of a notice
jointly signed by Lender and Borrower and shall automatically
terminate upon the indefeasible repayment in full of the Loan
and all Indebtedness (as defined in the Security Instrument).
c. CONTINUING OF OBLIGATIONS. Upon any termination of this
Agreement, Cash Management Bank shall continue to hold all
funds then held in the Collateral Accounts, or thereafter
presented to Cash Management Bank or received for deposit in
the Collateral Accounts, in accordance with this Agreement
until Cash Management Bank receives written instructions from
each of Lender and, provided no Event of Default has occurred
and is then continuing, Borrower, concerning the disposition
of such funds. Upon the termination of this Agreement, Cash
Management Bank shall transfer all funds and securities held
in the Collateral Accounts in accordance with such written
instructions of Lender and, provided no Event of Default has
occurred and is then continuing, Borrower.
9. MISCELLANEOUS.
a. NOTICES. All notices, consents, approvals and requests
required or permitted hereunder shall be given in writing and
shall be effective for all purposes if hand delivered or sent
by (a) certified or registered United States mail, postage
prepaid, return receipt requested or (b) expedited prepaid
delivery service, either commercial or United States Postal
Service, with proof of attempted delivery, or (c) by
telecopier (with answer back acknowledged), addressed as
follows (or at such other address and Person as shall be
designated from time to time by any party hereto, as the case
may be, in a written notice to the other parties hereto in the
manner provided for in this Section and given at least twenty
(20) days prior to the effective date of such change of
address).
8
If to Borrower: 731 Office One LLC
c/o Alexander's, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxx Xxxxxxxxxxx
Facsimile: (000) 000-0000
Confirmation No. (000) 000-0000
with a copy (other than account reports and credit advices)
to:
Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000 0000
Confirmation No.: (000) 000-0000
If to Cash Management Bank:
XX Xxxxxx Chase
ITS - Collateral Management
0 Xxx Xxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx, Vice
President
Facsimile: (000) 000-0000
Confirmation No.: (000) 000-0000
and
If to Lender:
German American Capital Corporation
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
Confirmation No.: (000) 000-0000
with a copy to:
GMAC Commercial Mortgage Corporation
000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Attention: Managing Director, Global
Facsimile: (000) 000-0000
Confirmation No.: (000) 000-0000
9
with a copy (other than account reports and credit advices)
to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx
LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx X. Xxxx, Esq.
Facsimile: (000) 000-0000
Confirmation No.: (000) 000-0000
All notices, elections, requests and demands under this Agreement shall be
effective and deemed received upon the earliest of (i) the actual receipt (or
rejection of receipt) of the same by personal delivery or otherwise, (ii) one
(1) Business Day after being deposited with a nationally recognized overnight
courier service as required above, (iii) upon delivery or rejection of delivery
after being deposited in the United States mail as required above or (iv) on the
day sent if sent by facsimile with confirmation on or before 5:00 p.m. New York
time on any Business Day or on the next Business Day if so delivered after 5:00
p.m. New York time or on any day other than a Business Day. Rejection or other
refusal to accept or the inability to deliver because of changed address of
which no notice was given as herein required shall be deemed to be receipt of
the notice, election, request, or demand sent.
b. ENTIRE AGREEMENT. This Agreement constitutes the entire and
final agreement between Borrower and Lender with respect to
the subject matter hereof and may only be changed, amended,
modified or waived by an instrument in writing signed by
Borrower, Lender and Cash Management Bank.
c. NO WAIVER. No waiver of any term or condition of this
Agreement, whether by delay, omission or otherwise, shall be
effective unless in writing and signed by the party sought to
be charged and consented to in writing by Lender, and then
such waiver shall be effective only in the specific instance
and for the purpose for which given.
d. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and inure to the benefit of Borrower, Lender and Cash
Management Bank, their respective successors and permitted
assigns.
e. CAPTIONS. All paragraph, section, exhibit and schedule
headings and captions herein are used for reference only and
in no way limit or describe the scope or intent of, or in any
way affect, this Agreement.
f. COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be an original and all of which when taken
together shall constitute one binding Agreement.
g. CONFLICTS. To the extent that any agreements other than the
Loan Agreement, currently existing, are inconsistent with this
Agreement, this Agreement shall supersede any other agreement
relating to the matters referred to herein. In the event of a
conflict between the terms an conditions of this Agreement and
the
10
terms and conditions of the Loan Agreement, the terms and
conditions of the Loan Agreement shall control.
h. SEVERABILITY. The provisions of this Agreement are severable,
and if any one clause or provision hereof shall be held
invalid or unenforceable in whole or in part, then such
invalidity or unenforceability shall affect only such clause
or provision, or part thereof, and not any other clause or
provision of this Agreement.
i. FURTHER ASSURANCES. Borrower agrees that at any time and from
time to time, at the reasonable expense of Borrower, Borrower
will promptly execute and deliver all further instruments and
documents and take all further action, that may be reasonably
necessary or desirable, or that Lender may reasonably request,
in order to perfect and protect any security interest granted
or purported to be granted in the Loan Agreement, including,
without limitation, any security interests in and to any
Permitted Investments, or to enable Lender to exercise and
enforce its rights and remedies under the Loan Agreement or
hereunder with respect to any Account Collateral.
j. RELIANCE. The Cash Management Bank may rely and shall be
protected in acting or refraining from acting upon any written
notice, instruction or request furnished to it hereunder and
reasonably believed by it to be genuine and to have been
signed or presented by the proper party or parties. The Cash
Management Bank shall be under no duty to inquire into or
investigate the validity, accuracy or content of any such
document. The Cash Management Bank shall have no duty to
solicit any payments which may be due it hereunder.
k. COMMUNICATION. In the event funds transfer instructions are
given (other than in writing at the time of execution of the
Agreement), whether in writing, by telecopier or otherwise,
the Cash Management Bank is authorized to seek confirmation of
such instructions by telephone call-back, and the Cash
Management Bank may rely upon the confirmations of anyone
purporting to be the person or persons so designated. The
persons and telephone numbers for call-backs may be changed
only in a writing actually received and acknowledged by the
Cash Management Bank. The parties to this Agreement
acknowledge that such security procedure is commercially
reasonable.
l. ACCOUNT NUMBERS. It is understood that the Cash Management
Bank and the Lender's bank, with respect to any funds
transfer, may rely solely upon any account numbers or similar
identifying number provided by either of the other parties
hereto to identify (i) the Lender, (ii) the Lender's bank, or
(iii) an intermediary bank. The Cash Management Bank may apply
any of the reserved funds for any payment order it executes
using any such identifying number, even where its use may
result in a person other than the beneficiary being paid, or
the transfer of funds to a bank other than the beneficiary's
bank, or an intermediary bank designated.
11
m. GOVERNING LAW. THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK PURSUANT
TO SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW,
WITHOUT REGARD TO CHOICE OF LAW RULES. BORROWER AGREES THAT
ANY SUIT FOR THE ENFORCEMENT OF THIS NOTE OR ANY OTHER LOAN
DOCUMENT SHALL BE BROUGHT IN THE COURTS OF THE STATE OF NEW
YORK OR ANY FEDERAL COURT SITTING THEREIN AND CONSENTS TO THE
NONEXCLUSIVE JURISDICTION OF SUCH COURT AND THE SERVICE OF
PROCESS IN ANY SUCH SUIT BEING MADE UPON BORROWER IN THE
MANNER AND AT THE ADDRESS SPECIFIED FOR NOTICES IN THE LOAN
AGREEMENT. BORROWER HEREBY WAIVES ANY OBJECTION THAT IT MAY
NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY
SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT
COURT.
n. JURY TRIAL WAIVER. EACH OF BORROWER, LENDER AND CASH
MANAGEMENT BANK, FOR ITSELF AND ALL PERSONS CLAIMING BY,
THROUGH OR UNDER IT, HEREBY EXPRESSLY, KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (I) ARISING UNDER
THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY PRESENT OR
FUTURE MODIFICATION THEREOF OR (II) IN ANY WAY CONNECTED WITH
OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO
OR ANY OF THEM WITH RESPECT TO THIS AGREEMENT (AS NOW OR
HEREAFTER MODIFIED) OR ANY OTHER INSTRUMENT, DOCUMENT OR
AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR THE
TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER
SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION IS NOW EXISTING
OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT
OR OTHERWISE; AND EACH OF BORROWER, LENDER AND CASH MANAGEMENT
BANK HEREBY AGREES AND CONSENTS THAT AN ORIGINAL COUNTERPART
OR A COPY OF THIS SECTION MAY BE FILED WITH ANY COURT AS
WRITTEN EVIDENCE OF THE CONSENT HERETO TO THE WAIVER OF ANY
RIGHT TO TRIAL BY JURY. EACH OF BORROWER, LENDER AND CASH
MANAGEMENT BANK ACKNOWLEDGES THAT IT HAS CONSULTED WITH LEGAL
COUNSEL REGARDING THE MEANING OF THIS WAIVER AND ACKNOWLEDGES
THAT THIS WAIVER IS AN ESSENTIAL INDUCEMENT FOR THE OTHER
EXECUTING THIS AGREEMENT AND LENDER MAKING THE LOAN. THIS
WAIVER SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
o. ADDITIONAL CASH MANAGEMENT BANK PROVISIONS.
12
i. The duties and responsibilities of the Cash
Management Bank hereunder shall be determined solely
by the express provisions of this Agreement, and no
other or further duties or responsibilities shall be
implied. The Cash Management Bank shall not have any
liability under, nor duty to inquire into the terms
and provisions of any agreement or instructions,
other than outlined in the Agreement. Cash Management
Bank shall not be under any obligation or duty to
perform any act which would involve it in expense or
liability or to institute or defend any suit in
respect hereof, or to advance any of its own monies.
The Cash Management Bank may execute any of its
powers and perform any of its duties hereunder
directly or through agents or attorneys (and shall be
liable only for the careful selection of any such
agent or attorney) and may consult with counsel,
accountants and other skilled persons to be selected
and retained by it. In the event that the Cash
Management 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
keep safely all property held in escrow until it
shall be directed otherwise in writing by all of the
other parties hereto or by a final order or judgment
of a court of competent jurisdiction.
ii. Any corporation into which the Cash Management Bank
in its individual capacity may be merged or converted
or with which it may be consolidated, or any
corporation resulting from any merger, conversion or
consolidation to which the Cash Management Bank in
its individual capacity shall be a party, or any
corporation to which substantially all the corporate
trust business of the Cash Management Bank in its
individual capacity may be transferred, shall be the
Cash Management Bank under this Agreement without
further act.
iii. The parties hereto acknowledge that the foregoing
indemnities in Section 7(b) shall survive the
resignation or removal of the Cash Management Bank or
the termination of this Agreement.
iv. The Borrower represents that the correct Taxpayer
Identification Number of 731 Office One LLC is
00-0000000. All interest or other income earned under
this Agreement shall be allocated to Borrower and
reported by Alexander's Inc. to the Internal Revenue
Service. Notwithstanding such written directions,
Cash Management Bank shall report and, as required,
withhold any taxes as it determines may be required
by any law or regulation in effect at the time of the
distribution. In addition, Cash Management Bank shall
withhold any taxes required by applicable law and
shall remit such taxes to the appropriate
authorities.
v. The person executing this Agreement on its party's
behalf has been duly and properly authorized to do
so.
13
[REMAINDER OF PAGE INTENTIONALLY BLANK]
14
IN WITNESS WHEREOF, Borrower, Cash Management Bank and Lender
have duly executed this Account Agreement as of the day and year first above
written.
BORROWER:
731 OFFICE ONE LLC, a Delaware limited
liability company
By: 731 OFFICE ONE HOLDING LLC, a Delaware
limited liability company, its sole member
By: ALEXANDER'S INC., a Delaware
corporation, its sole member
By: /s/ Xxxxx Xxxxx
--------------------------------
Name: Xxxxx Xxxxx
Title: Assistant Secretary
CASH MANAGEMENT BANK:
XX XXXXXX XXXXX, a New York banking
organization
By: /s/ Xxxxxx Xxxxx
----------------------------------------
Name: Xxxxxx Xxxxx
Title: Assistant Vice President
LENDER:
GERMAN AMERICAN CAPITAL CORPORATION,
a Maryland corporation
By: /s/ Xxxxxxxxxxx Xxxxxxx
----------------------------------------
Name: Xxxxxxxxxxx Xxxxxxx
Title: Vice President
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Authorized Signatory
SCHEDULE 1A
COLLECTION ACCOUNT
"731 Office One LLC f/b/o German American Capital Corporation, as secured party,
Collection Account" (Account Number 323962033).
Schedule 1A
SCHEDULE 1B
HOLDING ACCOUNT AND SUBACCOUNTS
"731 Office One LLC f/b/o German American Capital Corporation, as secured party,
Holding Account" (Account Number 323962025) and the following sub-accounts of
the Holding Account:
i. "731 Office One LLC f/b/o German American Capital Corporation,
as secured party, Debt Service Reserve Account" (Account Number 323962025-01);
ii. "731 Office One LLC f/b/o German American Capital Corporation,
as secured party, Tax Reserve Account" (Account Number 323962025-02);
iii. "731 Office One LLC f/b/o German American Capital Corporation,
as secured party, Insurance Reserve Account" (Account Number 323962025-03);
iv. "731 Office One LLC f/b/o German American Capital Corporation,
as secured party, Structural Reserve Account" (Account Number 323962025-04);
v. "731 Office One LLC f/b/o German American Capital Corporation,
as secured party, Proceeds Reserve Account" (Account Number 323962025-05);
vi. "731 Office One LLC f/b/o German American Capital Corporation,
as secured party, Alterations Reserve Account" (Account Number 323962025-06);
vii. "731 Office One LLC f/b/o German American Capital Corporation,
as secured party, Operating Expense Reserve Account" (Account Number
323962025-07);
viii. "731 Office One LLC f/b/o German American Capital Corporation,
as secured party, Additional Debt Service Reserve Account" (Account Number
323962025-08); and
ix. "731 Office One LLC f/b/o German American Capital Corporation,
as secured party, Cash Trap Reserve Account" (Account Number 323962025-09).
Schedule 1B
SCHEDULE 2
[XX XXXXXX LOGO]
SCHEDULE OF FEES FOR SERVICES RELATED TO THE
731 OFFICE ONE LLC AND
GERMAN AMERICAN CAPITAL CORPORATION
ACCOUNT AND CONTROL AGREEMENT
I. INITIAL FEE Waived
This fee covers the acceptance of the appointment, commenting
on the agreement and supporting documentation, setting up
Master Demand Deposit Account(s) and appropriate Sub-Accounts.
Payable upon closing.
II. MONTHLY ADMINISTRATION FEE $1,500
Covers the normal administration of the transaction including the
monitoring of the cash flows and the maintenance of the accounts
and sub-accounts as described in the transaction documents.
Payable each month in advance.
III. ACTIVITY FEES (AS APPLICABLE):
Wire Transfer Fees: $25 per wire, in excess of 10
Investment Fees: Waived*
*Investment Processing Fees are waived if funds are maintained in the JPMorgan
Cash Escrow Service. If applicable, and unless instructed otherwise, all funds
shall be maintained as a Cash Escrow deposit on the Trust Ledger of JPMorgan
Chase Bank. The JPMorgan Chase Trust Cash Escrow service has a return rate,
based upon the average daily balance maintained during each month, of LIBOR less
50 basis points.
IV. LEGAL FEES / OUT-OF-POCKET EXPENSES AT COST
It is not our intention to utilize counsel. However, to the extent that counsel
is deemed necessary, their fees and expenses will be passed on at cost.
Out-of-pocket expenses, if applicable, will be billed at cost, including but not
limited to, telephone, faxes, postage, stationary, delivery expenses, etc.
FEE SCHEDULE ASSUMPTIONS:
1. JPMorgan Chase Bank is not responsible for providing tax reporting services.
2. A Demand Deposit Account will be established to receive funds from a
Commercial Property.
3. JPMorgan Chase Bank may receive instructions from a Servicer, acceptable to
us.
4. Lockbox arrangements, if applicable, will be established through the
JPMorgan Chase Bank Treasury Services Group. The fees for the lockbox will
be in addition to those quoted above and agreed upon between the Borrower
and the Treasury Services Group.
IMPORTANT NOTE: TO HELP IN THE FIGHT AGAINST THE FUNDING OF TERRORISM AND MONEY
LAUNDERING ACTIVITIES WE ARE REQUIRED ALONG WITH ALL FINANCIAL INSTITUTIONS TO
OBTAIN, VERIFY, AND RECORD INFORMATION THAT IDENTIFIES EACH PERSON WHO OPENS AN
ACCOUNT. WHEN YOU OPEN AN ACCOUNT, WE WILL ASK FOR INFORMATION THAT WILL ALLOW
US TO IDENTIFY YOU.
Schedule 2
