Exhibit 10(i)C(4)
CONSOLIDATED, AMENDED AND RESTATED
BUILDING LOAN NOTE
$55,500,000.00 New York, New York
July 3, 2002
FOR VALUE RECEIVED, 731 COMMERCIAL LLC and 731 RESIDENTIAL LLC, each a
Delaware limited liability company, as maker, having its principal place of
business at c/o Alexander's, Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(together, "Borrower"), hereby unconditionally promises to pay to the order of
BAYERISCHE HYPO- UND VEREINSBANK, AG, NEW YORK BRANCH, a German banking
corporation organized under the laws of the Federal Republic of Germany, as
lender, having an address at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
("LENDER"), or at such other place as the holder hereof may from time to time
designate in writing, the principal sum of FIFTY FIVE MILLION FIVE HUNDRED
THOUSAND and NO/100 DOLLARS ($55,500,000.00), or so much thereof as is advanced,
in lawful money of the United States of America, with interest thereon to be
computed from the date of this Consolidated, Amended and Restated Building Loan
Note (this "NOTE") at the Applicable Interest Rate, and to be paid in accordance
with the terms of this Note and that certain Building Loan Agreement dated the
date hereof between Borrower, Bayerische Hypo- Und Vereinsbank, AG, New York
Branch, as agent ("AGENT") for itself and other co-lenders as may exist from
time to time (collectively, the "OTHER LENDERS"), Lender and such Other Lenders
(if any) (the "BUILDING LOAN AGREEMENT"). All capitalized terms not defined
herein shall have the respective meanings set forth in the Building Loan
Agreement.
This Note (sometimes also referred to as the "Building Loan Note"), is
intended to consolidate, amend and restate in their entirety those certain
promissory notes (collectively, the "Existing Notes") described on Exhibit A
attached hereto and made a part hereof, which Existing Notes are now held by
Agent and the obligations under which are now the responsibility of Borrower.
This Note is not intended to create any new indebtedness nor intended to
constitute a novation as to Borrower's obligations under the Existing Notes.
ARTICLE 1 : PAYMENT TERMS
Xxxxxxxx agrees to pay the principal sum of this Note and interest on
the unpaid principal sum of this Note from time to time outstanding at the rates
and at the times and in the manner specified in Article II of the Building Loan
Agreement, Additional Interest (if any) pursuant to the Building Loan Agreement
and the outstanding balance of the principal sum of this Note and all accrued
and unpaid interest thereon shall be due and payable on the Maturity Date.
ARTICLE 2 : DEFAULT AND ACCELERATION
The Debt shall without notice become immediately due and payable at the
option of Lender as provided in the Building Loan Agreement if any payment
required in this Note is not paid on or prior to the date when due or if not
paid on the Maturity Date or on the happening of any other Event of Default.
ARTICLE 3 : BUILDING LOAN DOCUMENTS
This Note is secured by the Building Loan Mortgage and the other
Building Loan Documents. All of the terms, covenants and conditions contained in
the Building Loan Agreement, the Building Loan Mortgage and the other Building
Loan Documents are hereby made part of this Note to the same extent and with the
same force as if they were fully set forth herein. In the event of a conflict or
inconsistency between the terms of this Note and the Building Loan Agreement,
the terms and provisions of the Building Loan Agreement shall govern.
ARTICLE 4 : SAVINGS CLAUSE
Notwithstanding anything to the contrary, (a) all agreements and
communications between Borrower and Lender are hereby and shall automatically be
limited so that, after taking into account all amounts deemed interest, the
interest contracted for, charged or received by Lender shall never exceed the
maximum lawful rate or amount, (b) in calculating whether any interest exceeds
the lawful maximum, all such interest shall be amortized, prorated, allocated
and spread over the full amount and term of all principal indebtedness of
Borrower to Lender, and (c) if through any contingency or event, Lender receives
or is deemed to receive interest in excess of the lawful maximum, any such
excess shall be deemed to have been applied toward payment of the principal of
any and all then outstanding indebtedness of Borrower to Lender, or if there is
no such indebtedness, shall immediately be returned to Borrower.
ARTICLE 5 : NO ORAL CHANGE
This Note may not be modified, amended, waived, extended, changed,
discharged or terminated orally or by any act or failure to act on the part of
Borrower or Lender, but only by an agreement in writing signed by the party
against whom enforcement of any modification, amendment, waiver, extension,
change, discharge or termination is sought.
ARTICLE 6 : WAIVERS
Borrower and all others who may become liable for the payment of all or
any part of the Debt do hereby severally waive presentment and demand for
payment, notice of dishonor, notice of intention to accelerate, notice of
acceleration, protest and notice of protest and non-payment and all other
notices of any kind. No release of any security for the Debt or extension of
time for payment of this Note or any installment hereof, and no alteration,
amendment or waiver of any provision of this Note, the Building Loan Agreement
or the other Building Loan Documents made by agreement between Lender or any
other Person shall release, modify, amend, waive, extend, change, discharge,
terminate or affect the liability of Borrower or any other Person who may become
liable for the payment of all or any part of the Debt under this Note, the
Building Loan Agreement or the other Building Loan Documents. No notice to or
demand on Borrower shall be deemed to be a waiver of the obligation of Borrower
or of the right of Lender to take further action without further notice or
demand as provided for in this Note, the Building Loan Agreement or the other
Building Loan Documents. If Borrower is a partnership or limited liability
company, the agreements herein contained shall remain in force and be
applicable, notwithstanding any changes in the individuals comprising the
partnership or limited liability company, and the term "Borrower," as used
herein, shall include any alternate or successor partnership or limited
liability company, but any predecessor partnership or limited
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liability company and their partners or members shall not thereby be released
from any liability. If Borrower is a corporation, the agreements contained
herein shall remain in full force and be applicable notwithstanding any changes
in the shareholders comprising, or the officers and directors relating to, the
corporation, and the term "Borrower," as used herein, shall include any
alternative or successor corporation, but any predecessor corporation shall not
be relieved of liability hereunder. (Nothing in the foregoing sentence shall be
construed as a consent to, or a waiver of, any prohibition or restriction on
transfers of interests in such partnership, limited liability company or
corporation, which may be set forth in the Building Loan Agreement, the Building
Loan Mortgage or any other Building Loan Document.)
ARTICLE 7 : TRANSFER
Upon the transfer of this Note, Xxxxxxxx hereby waiving notice of any
such transfer, Lender may deliver all the collateral mortgaged, granted, pledged
or assigned pursuant to the Building Loan Documents, or any part thereof, to the
transferee (subject, however, to the terms of Section 10.24 of the Building Loan
Agreement) who shall thereupon become vested with all the rights herein or under
applicable law given to Lender with respect thereto, and, subject to the terms
of Section 10.24 of the Building Loan Agreement, Lender shall thereafter forever
be relieved and fully discharged from any liability or responsibility in the
matter; but Lender shall retain all rights hereby given to it with respect to
any liabilities and the collateral not so transferred.
ARTICLE 8 : INTENTIONALLY OMITTED
ARTICLE 9 : GOVERNING LAW
(A) THIS NOTE WAS NEGOTIATED IN THE STATE OF NEW YORK, AND MADE BY
XXXXXXXX AND ACCEPTED BY LENDER IN THE STATE OF NEW YORK, AND THE PROCEEDS OF
THIS NOTE WERE DISBURSED FROM THE STATE OF NEW YORK, WHICH STATE THE PARTIES
AGREE HAS A SUBSTANTIAL RELATIONSHIP TO THE PARTIES AND TO THE UNDERLYING
TRANSACTION EMBODIED HEREBY, AND IN ALL RESPECTS, INCLUDING, WITHOUT LIMITING
THE GENERALITY OF THE FOREGOING, MATTERS OF CONSTRUCTION, VALIDITY AND
PERFORMANCE, THIS NOTE AND THE OBLIGATIONS ARISING HEREUNDER SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE (WITHOUT REGARD TO
PRINCIPLES OF CONFLICT LAWS) AND ANY APPLICABLE LAW OF THE UNITED STATES OF
AMERICA. TO THE FULLEST EXTENT PERMITTED BY LAW, BORROWER HEREBY UNCONDITIONALLY
AND IRREVOCABLY WAIVES ANY CLAIM TO ASSERT THAT THE LAW OF ANY OTHER
JURISDICTION GOVERNS THIS NOTE AND 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.
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(B) ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST LENDER OR BORROWER
ARISING OUT OF OR RELATING TO THIS NOTE MAY AT AGENT'S OPTION BE INSTITUTED IN
ANY FEDERAL OR STATE COURT IN THE CITY OF NEW YORK, COUNTY OF NEW YORK, PURSUANT
TO SECTION 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW, AND BORROWER WAIVES
ANY OBJECTIONS WHICH IT MAY NOW OR HEREAFTER HAVE BASED ON VENUE AND/OR FORUM
NON CONVENIENS OF ANY SUCH SUIT, ACTION OR PROCEEDING, AND BORROWER HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT IN ANY SUIT, ACTION OR
PROCEEDING. BORROWER DOES HEREBY DESIGNATE AND APPOINT:
PROSKAUER ROSE LLP
0000 XXXXXXXX
XXX XXXX, XXX XXXX 00000
ATTN: XXXXXXXX X. XXXXXX, ESQ.
AS ITS AUTHORIZED AGENT TO ACCEPT AND ACKNOWLEDGE ON ITS BEHALF SERVICE OF ANY
AND ALL PROCESS WHICH MAY BE SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING IN
ANY FEDERAL OR STATE COURT IN NEW YORK, NEW YORK, AND AGREES THAT SERVICE OF
PROCESS UPON SAID AGENT AT SAID ADDRESS AND WRITTEN NOTICE OF SAID SERVICE
MAILED OR DELIVERED TO BORROWER IN THE MANNER PROVIDED HEREIN SHALL BE DEEMED IN
EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON BORROWER IN ANY SUCH SUIT,
ACTION OR PROCEEDING IN THE STATE OF NEW YORK. XXXXXXXX (I) SHALL GIVE PROMPT
NOTICE TO AGENT OF ANY CHANGED ADDRESS OF ITS AUTHORIZED AGENT HEREUNDER, (II)
MAY AT ANY TIME AND FROM TIME TO TIME DESIGNATE A SUBSTITUTE AUTHORIZED AGENT
WITH AN OFFICE IN NEW YORK, NEW YORK (WHICH SUBSTITUTE AGENT AND OFFICE SHALL BE
DESIGNATED AS THE PERSON AND ADDRESS FOR SERVICE OF PROCESS), AND (III) SHALL
PROMPTLY DESIGNATE SUCH A SUBSTITUTE IF ITS AUTHORIZED AGENT CEASES TO HAVE AN
OFFICE IN NEW YORK, NEW YORK OR IS DISSOLVED WITHOUT LEAVING A SUCCESSOR.
ARTICLE 10 : NOTICES
All notices or other written communications hereunder shall be
delivered in accordance with Section 10.6 of the Building Loan Agreement.
ARTICLE 11 : JOINT AND SEVERAL
Each of the entities constituting Borrower hereunder shall be jointly
and severally liable for all of Borrower's obligations hereunder.
[NO FURTHER TEXT ON THIS PAGE]
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IN WITNESS WHEREOF, Xxxxxxxx has duly executed this Note as of the day
and year first above written.
731 COMMERCIAL LLC, a Delaware
limited liability company
By: 731 Commercial Holding LLC,
member
By: Xxxxxxxxx'x, Inc., member
By:/s/ Xxxxxx Xxxxxx
----------------------------
Name: Xxxxxx Xxxxxx
Title: Executive Vice
President-Finance and
Administration
731 RESIDENTIAL LLC, a Delaware
limited liability company
By: 731 Residential Holding LLC,
member
By: Xxxxxxxxx'x, Inc. member
By: /s/ Xxxxxx Xxxxxx
--------------------------
Name: Xxxxxx Xxxxxx
Title: Executive Vice
President-Finance and
Administration
EXHIBIT A
EXISTING NOTES
The notes secured by the following mortgages:
(1) Mortgage, Assignment of Leases and Security Agreement made by Seven
Thirty One Limited Partnership and Alexander's Department Stores of
Lexington Avenue, Inc. - to - First Fidelity Bank (NA), in the amount
of $30,000,000.00, dated as of 3/15/95 and recorded on 3/20/95 in Reel
2192 Page 1291, which mortgage was modified by Mortgage Modification
and Extension Agreement made between Seven Thirty One Limited
Partnership and Alexander's Department Stores of Lexington Avenue, Inc.
- and - First Union National Bank (formerly known as Fidelity Bank,
N.A.), dated as of 3/15/98 and recorded on 2/16/99 in Reel 2819 Page
1988 and which mortgage was severed and modified by Note and Mortgage
Modification and Severance Agreement made between Xxxxxxxxx'x of
Fordham Road Inc., Alexander's Inc., Xxxxxxxxx'x of Third Avenue Inc.,
Xxxxxxxxx'x Xxxx Park Center, Inc., Xxxxxxxxx'x of Xxxx Park II, Inc.,
Xxxxxxxxx'x of Xxxx Park III, Inc., Seven Thirty One Limited
Partnership, Xxxxxxxxx'x Department Stores of Lexington Avenue, Inc.,
Xxxxxxxxx'x of Brooklyn, Inc., Xxxxxxxxx'x Department Stores of New
Jersey Inc. - and - First Union National Bank, (formerly known as
Fidelity Bank, National Association) dated as of 6/18/98 and recorded
on 9/10/98 in Reel 2703 Page 1797, which xxxxxx the note and mortgage
into a mortgage on premises in Kings County in the sum of $10,000,000
and the remaining note in the sum of $20,000,000 continues to be
secured by mortgage 1, which mortgage was further modified and extended
by Mortgage Modification and Extension Agreement between Xxxxxxxxx'x of
Fordham Road Inc., Alexander's Inc., Xxxxxxxxx'x of Third Avenue Inc.,
Xxxxxxxxx'x Xxxx Park Center, Inc., Xxxxxxxxx'x of Xxxx Park II, Inc.,
Xxxxxxxxx'x of Xxxx Park III, Inc., Seven Thirty One Limited
Partnership, Xxxxxxxxx'x Department Stores of Lexington Avenue, Inc.,
Xxxxxxxxx'x of Brooklyn, Inc., Xxxxxxxxx'x Department Stores of New
Jersey Inc. -and- First Union National Bank, (formerly known as
Fidelity Bank, National Association) dated as of 3/29/99, recorded
4/20/99 in Reel 2859 Page 174, which mortgage was further modified by
Modification and Extension Agreement made between Xxxxxxxxx'x of
Fordham Road, Inc., Xxxxxxxxx'x Inc., Xxxxxxxxx'x of Third Avenue,
Inc., Xxxxxxxxx'x of Xxxx Park II, Inc., Xxxxxxxxx'x of Xxxx Park III,
Inc., Seven Thirty One Limited Partnership, Alexander's Department
Stores of Lexington Avenue, Inc., Xxxxxxxxx'x Department Stores of New
Jersey, Inc. -and- First Union National Bank formerly known as First
Fidelity Bank, National Association, dated as of 4/14/00 and recorded
on 4/3/01 in Reel 3265 Page 1882 and which mortgage was further
modified and extended by Mortgage Modification and Extension Agreement
made between Xxxxxxxxx'x Inc., Xxxxxxxxx'x of Third Avenue, Inc.,
Xxxxxxxxx'x of Xxxx Park II, Inc., Xxxxxxxxx'x of Xxxx Park III, Inc.,
Seven Thirty One Limited Partnership, Xxxxxxxxx'x Department Stores of
Lexington Avenue, Inc., Xxxxxxxxx'x Department Stores
of New Jersey, Inc. -and- First Union National Bank formerly known as
First Fidelity Bank, National Association, dated as of 4/27/01 and
recorded on 5/21/01 in Reel 3291 Page 1269, and which mortgage modified
and extended by Mortgage Modification and Extension Agreement made
between Xxxxxxxxx'x Inc., Xxxxxxxxx'x of Third Avenue, Inc.,
Xxxxxxxxx'x of Xxxx Park II, Inc., Xxxxxxxxx'x of Xxxx Park III, Inc.,
Seven Thirty One Limited Partnership, Xxxxxxxxx'x Department Stores of
Lexington Avenue, Inc., 59th Street Corporation. -and- First Union
National Bank formerly known as First Fidelity Bank, National
Association, dated as of 3/15/02 and to be recorded in the Office of
the Register of the City of New York, County of New York, on June 24,
2002 in Reel 3545 Page 2045 which mortgages covered other properties
and which other properties were released from the mortgages by Release
dated the 3rd day of July, 2002 and to be recorded in the Office of the
Register of the City of New York, County of Kings, Queens and The
Bronx, and which mortgage was assigned to the Insured by virtue of an
Assignment of mortgage dated the 3rd day of July, 2002 from Wachovia
Bank, National Association, f/k/a First Union National Bank, f/k/a
First Fidelity Bank, National Association, and to be recorded in the
Office of the Register of the City of New York, County of New York.
(2) Mortgage made by Seven Thirty One Limited Partnership and Alexander's
Department Stores of Lexington Avenue, Inc. - to - Vornado Lending
Corp., in the amount of $45,000,000.00, dated as of 3/15/95 and
recorded on 3/22/95 in Reel 2193 Page 966 and which mortgage was
modified and extended by Mortgage Modification and Extension Agreement
made between Seven Thirty One Limited Partnership and Xxxxxxxxx'x
Department Stores of Lexington Avenue, Inc. - and Vornado Lending LLC,
formerly known as Vornado Lending Corp., dated as of 3/15/98 and
recorded on 2/16/99 in Reel 2819 Page 1998 and which mortgage was
modified and extended by Second Mortgage Modification and Extension
Agreement made between Seven Thirty One Limited Partnership and
Xxxxxxxxx'x Department Stores of Lexington Avenue, Inc. - and - Vornado
Lending LLC (formerly known as Vornado Lending Corp.), dated as of
3/29/99 and recorded on 4/20/99 in Reel 2859 Page 251, and which
mortgage was further modified and extended by Third Mortgage
Modification and Extension Agreement made between Seven Thirty One
Limited Partnership, Xxxxxxxxx'x Department Stores of Lexington Avenue,
Inc. -and- Vornado Lending L.L.C. (formerly known as Vornado Lending
Corp.) dated as of 3/15/00 and recorded on 1/11/01 in Reel 3220 Page
2176, which mortgage was assigned to the Insured by virtue of an
Assignment of Mortgage dated the 3rd day of July, 2002, from Vornado
Lending, L.L.C. f/k/a Vornado Lending Corp. and to be recorded in the
Office of the Register of the City of New York, County of New York.
(3) Gap Mortgage in the sum of $500,000. dated the 3rd day of July, 2002,
by and between 731 Commercial LLC and 731 Residential LLC, as mortgagor
and the Insured, as mortgagee and to be recorded in the Office of the
Register of the City of New York, County of New York.
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