UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 10-Q
(Mark one)
x |
QUARTERLY
REPORT PURSUANT TO SECTION 13 OR 15 (d) |
|
For the quarterly period ended: |
June 30, 2011 |
|
Or
o |
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (d) |
For the transition period from: |
|
to |
|
Commission File Number: |
001-6064 |
|
ALEXANDER’S, INC.
(Exact name of registrant as specified in its charter)
Delaware |
|
51-0100517 |
(State or other jurisdiction of incorporation or organization) |
|
(I.R.S. Employer Identification Number) |
|
|
|
210 Route 4 East, Paramus, New Jersey |
|
07652 |
(Address of principal executive offices) |
|
(Zip Code) |
(201) 587-8541
(Registrant’s telephone number, including area code)
N/A
(Former name, former address and former fiscal year, if changed since last report)
Indicate by check mark whether the registrant: (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. x Yes o No
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (Section 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). x Yes o No
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
o Large Accelerated Filer |
|
x Accelerated Filer |
o Non-Accelerated Filer (Do not check if smaller reporting company) |
|
o Smaller Reporting Company
|
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). o Yes x No
As of June 30, 2011, there were 5,105,936 shares of common stock, par value $1 per share, outstanding.
|
ALEXANDER’S, INC. |
|||||
|
|
|
|
|
|
|
|
INDEX |
|||||
|
|
|
|
|
|
|
|
|
|
|
|
Page Number |
|
PART I. |
Financial Information |
|
|
|||
|
|
|
|
|
|
|
|
Item 1. |
|
Financial Statements: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Consolidated Balance Sheets (Unaudited) as of |
|
|
|
|
|
|
|
June 30, 2011 and December 31, 2010 |
3 |
|
|
|
|
|
|
|
|
|
|
|
Consolidated Statements of Income (Unaudited) for the |
|
|
|
|
|
|
|
Three and Six Months Ended June 30, 2011 and 2010 |
4 |
|
|
|
|
|
|
|
|
|
|
|
Consolidated Statements of Changes in Equity (Unaudited) for the |
|
|
|
|
|
|
|
Six Months Ended June 30, 2011 and 2010 |
5 |
|
|
|
|
|
|
|
|
|
|
|
Consolidated Statements of Cash Flows (Unaudited) for the |
|
|
|
|
|
|
|
Six Months Ended June 30, 2011 and 2010 |
6 |
|
|
|
|
|
|
|
|
|
|
|
Notes to Consolidated Financial Statements (Unaudited) |
7 |
|
|
|
|
|
|
|
|
|
|
|
|
Report of Independent Registered Public Accounting Firm |
13 |
|
|
|
|
|
|
|
|
|
|
Item 2. |
|
Management’s Discussion and Analysis of |
|
|
|
|
|
|
|
Financial Condition and Results of Operations |
14 |
|
|
|
|
|
|
|
|
|
Item 3. |
|
Quantitative and Qualitative Disclosures about Market Risk |
22 |
|
|
|
|
|
|
|
|
|
|
Item 4. |
|
Controls and Procedures |
22 |
|
|
|
|
|
|
|
|
|
PART II. |
Other Information |
|
|
|||
|
|
|
|
|
|
|
|
Item 1. |
|
Legal Proceedings |
23 |
|
|
|
|
|
|
|
|
|
|
Item 1A. |
|
Risk Factors |
23 |
|
|
|
|
|
|
|
|
|
|
Item 2. |
|
Unregistered Sales of Equity Securities and Use of Proceeds |
23 |
|
|
|
|
|
|
|
|
|
|
Item 3. |
|
Defaults Upon Senior Securities |
23 |
|
|
|
|
|
|
|
|
|
|
Item 5. |
|
Other Information |
23 |
|
|
|
|
|
|
|
|
|
|
Item 6. |
|
Exhibits |
23 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Signatures |
|
|
|
24 |
|
|
|
|
|
|
|
|
|
Exhibit Index |
|
|
|
25 |
|
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
ALEXANDER’S, INC. AND SUBSIDIARIES |
|||||||
CONSOLIDATED BALANCE SHEETS |
|||||||
(UNAUDITED) |
|||||||
(Amounts in thousands, except share and per share amounts) |
|||||||
|
|
|
|
|
|
|
|
|
|
|
June 30, |
|
December 31, |
||
ASSETS |
2011 |
|
2010 |
||||
Real estate, at cost: |
|
|
|
|
|
||
|
Land |
$ |
74,974 |
|
$ |
74,974 |
|
|
Buildings and leasehold improvements |
|
978,842 |
|
|
934,782 |
|
|
Development and construction in progress |
|
1,367 |
|
|
40,535 |
|
|
|
Total |
|
1,055,183 |
|
|
1,050,291 |
Accumulated depreciation and amortization |
|
(170,877) |
|
|
(157,232) |
||
Real estate, net |
|
884,306 |
|
|
893,059 |
||
Cash and cash equivalents |
|
490,950 |
|
|
397,220 |
||
Short-term investments |
|
- |
|
|
23,000 |
||
Restricted cash |
|
88,150 |
|
|
85,567 |
||
Accounts receivable, net of allowance for doubtful accounts of $1,070 and $1,047, respectively |
|
2,789 |
|
|
4,224 |
||
Receivable arising from the straight-lining of rents |
|
182,762 |
|
|
175,680 |
||
Deferred lease and other property costs, net (including unamortized leasing fees to Vornado of |
|
|
|
|
|
||
|
$50,169 and $48,949, respectively) |
|
68,666 |
|
|
68,835 |
|
Deferred debt issuance costs, net of accumulated amortization of $13,788, and $18,855, respectively |
11,159 |
|
|
8,167 |
|||
Other assets |
|
43,193 |
|
|
23,548 |
||
|
|
|
$ |
1,771,975 |
|
$ |
1,679,300 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||
|
|
LIABILITIES AND EQUITY |
|
|
|
|
|
Notes and mortgages payable |
$ |
1,339,321 |
|
$ |
1,246,411 |
||
Amounts due to Vornado |
|
43,316 |
|
|
43,785 |
||
Accounts payable and accrued expenses |
|
34,754 |
|
|
41,610 |
||
Liability for income taxes and other |
|
3,737 |
|
|
3,718 |
||
|
|
Total liabilities |
|
1,421,128 |
|
|
1,335,524 |
|
|
|
|
|
|
|
|
Commitments and contingencies |
|
|
|
|
|
||
|
|
|
|
|
|
|
|
Preferred stock: $1.00 par value per share; authorized, 3,000,000 shares; |
|
|
|
|
|
||
|
issued and outstanding, none |
|
- |
|
|
- |
|
Common stock: $1.00 par value per share; authorized, 10,000,000 shares; |
|
|
|
|
|
||
|
issued, 5,173,450 shares; outstanding, 5,105,936 shares |
|
5,173 |
|
|
5,173 |
|
Additional capital |
|
31,801 |
|
|
31,501 |
||
Retained earnings |
|
311,783 |
|
|
304,055 |
||
|
|
|
|
348,757 |
|
|
340,729 |
Treasury stock: 67,514 shares, at cost |
|
(375) |
|
|
(375) |
||
|
|
Total Alexander’s equity |
|
348,382 |
|
|
340,354 |
Noncontrolling interest in consolidated subsidiary |
|
2,465 |
|
|
3,422 |
||
|
|
Total equity |
|
350,847 |
|
|
343,776 |
|
|
|
$ |
1,771,975 |
|
$ |
1,679,300 |
|
|
|
|
|
|
|
|
See notes to consolidated financial statements (unaudited). |
3
ALEXANDER’S, INC. AND SUBSIDIARIES | ||||||||||||||
CONSOLIDATED STATEMENTS OF INCOME | ||||||||||||||
(UNAUDITED) | ||||||||||||||
(Amounts in thousands, except share and per share amounts) | ||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended |
|
Six Months Ended | ||||||||
|
|
|
|
June 30, |
|
June 30, | ||||||||
|
|
|
|
2011 |
|
2010 |
|
2011 |
|
2010 | ||||
REVENUES |
|
|
|
|
|
|
|
|
|
|
|
| ||
|
Property rentals |
|
$ |
43,424 |
|
$ |
40,790 |
|
$ |
86,889 |
|
$ |
81,005 | |
|
Expense reimbursements |
|
|
18,612 |
|
|
18,376 |
|
|
38,019 |
|
|
36,705 | |
Total revenues |
|
|
62,036 |
|
|
59,166 |
|
|
124,908 |
|
|
117,710 | ||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
EXPENSES |
|
|
|
|
|
|
|
|
|
|
|
| ||
|
Operating (including fees to Vornado of $1,217, $1,266 |
|
|
|
|
|
|
|
|
|
|
|
| |
|
|
$2,553 and $2,508, respectively) |
|
|
19,951 |
|
|
18,817 |
|
|
41,138 |
|
|
37,873 |
|
Depreciation and amortization |
|
|
8,577 |
|
|
7,801 |
|
|
16,811 |
|
|
15,248 | |
|
General and administrative (including |
|
|
|
|
|
|
|
|
|
|
|
| |
|
|
management fees to Vornado of $540 and |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$1,080 in each three and six-month period) |
|
|
700 |
|
|
1,313 |
|
|
1,799 |
|
|
2,437 |
Total expenses |
|
|
29,228 |
|
|
27,931 |
|
|
59,748 |
|
|
55,558 | ||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
OPERATING INCOME |
|
|
32,808 |
|
|
31,235 |
|
|
65,160 |
|
|
62,152 | ||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest and other income, net |
|
|
1,715 |
|
|
204 |
|
|
1,820 |
|
|
487 | |
|
Interest and debt expense |
|
|
(14,319) |
|
|
(15,131) |
|
|
(29,124) |
|
|
(29,877) | |
|
Net loss on early extinguishment of debt |
|
|
- |
|
|
- |
|
|
- |
|
|
(1,238) | |
|
Income before income taxes |
|
|
20,204 |
|
|
16,308 |
|
|
37,856 |
|
|
31,524 | |
|
Income tax (expense) benefit |
|
|
(9) |
|
|
(159) |
|
|
151 |
|
|
(259) | |
Net income |
|
|
20,195 |
|
|
16,149 |
|
|
38,007 |
|
|
31,265 | ||
Net (income) loss attributable to the noncontrolling interest |
|
|
(38) |
|
|
(600) |
|
|
357 |
|
|
(602) | ||
Net income attributable to Alexander’s |
|
$ |
20,157 |
|
$ |
15,549 |
|
$ |
38,364 |
|
$ |
30,663 | ||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income per common share – basic and diluted |
|
$ |
3.95 |
|
$ |
3.05 |
|
$ |
7.51 |
|
$ |
6.01 | ||
Weighted average shares |
|
|
5,106,351 |
|
|
5,105,936 |
|
|
5,106,144 |
|
|
5,105,936 | ||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Dividends per common share |
|
$ |
3.00 |
|
$ |
2.50 |
|
$ |
6.00 |
|
$ |
2.50 | ||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
See notes to consolidated financial statements (unaudited). |
4
ALEXANDER’S, INC. AND SUBSIDIARIES | |||||||||||||||
CONSOLIDATED STATEMENTS OF CHANGES IN EQUITY | |||||||||||||||
(UNAUDITED) | |||||||||||||||
(Amounts in thousands) | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Non- |
|
|
|
Common Stock |
|
Additional |
|
Retained |
|
Treasury |
|
Alexander’s |
|
controlling |
|
Total | ||
|
Shares |
|
Amount |
|
Capital |
|
Earnings |
|
Stock |
|
Equity |
|
Interest |
|
Equity |
Balance, December 31, 2009 |
5,173 |
$ |
5,173 |
$ |
31,501 |
$ |
275,921 |
$ |
(375) |
$ |
312,220 |
$ |
2,406 |
$ |
314,626 |
Net income |
- |
|
- |
|
- |
|
30,663 |
|
- |
|
30,663 |
|
602 |
|
31,265 |
Dividends paid |
- |
|
- |
|
- |
|
(12,765) |
|
- |
|
(12,765) |
|
- |
|
(12,765) |
Balance, June 30, 2010 |
5,173 |
$ |
5,173 |
$ |
31,501 |
$ |
293,819 |
$ |
(375) |
$ |
330,118 |
$ |
3,008 |
$ |
333,126 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance, December 31, 2010 |
5,173 |
$ |
5,173 |
$ |
31,501 |
$ |
304,055 |
$ |
(375) |
$ |
340,354 |
$ |
3,422 |
$ |
343,776 |
Net income (loss) |
- |
|
- |
|
- |
|
38,364 |
|
- |
|
38,364 |
|
(357) |
|
38,007 |
Dividends paid |
- |
|
- |
|
- |
|
(30,636) |
|
- |
|
(30,636) |
|
- |
|
(30,636) |
Distributions |
- |
|
- |
|
- |
|
- |
|
- |
|
- |
|
(600) |
|
(600) |
Deferred stock unit grant |
- |
|
- |
|
300 |
|
- |
|
- |
|
300 |
|
- |
|
300 |
Balance, June 30, 2011 |
5,173 |
$ |
5,173 |
$ |
31,801 |
$ |
311,783 |
$ |
(375) |
$ |
348,382 |
$ |
2,465 |
$ |
350,847 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
See notes to consolidated financial statements (unaudited). |
5
|
|
|
|
|
|
|
|
ALEXANDER’S, INC. AND SUBSIDIARIES |
|||||||
CONSOLIDATED STATEMENTS OF CASH FLOWS |
|||||||
(UNAUDITED) |
|||||||
(Amounts in thousands) |
|||||||
|
|
|
|
|
|
|
|
|
|
|
Six Months Ended |
||||
|
|
|
June 30, |
||||
CASH FLOWS FROM OPERATING ACTIVITIES |
|
2011 |
|
2010 |
|||
Net income |
|
$ |
38,007 |
|
$ |
31,265 |
|
Adjustments to reconcile net income to net cash provided by operating activities: |
|
|
|
|
|
|
|
|
Depreciation and amortization (including amortization of debt issuance costs) |
|
|
18,254 |
|
|
16,982 |
|
Straight-lining of rental income |
|
|
(7,082) |
|
|
(7,931) |
|
Stock-based compensation expense |
|
|
300 |
|
|
- |
Change in operating assets and liabilities: |
|
|
|
|
|
|
|
|
Accounts receivable, net |
|
|
1,435 |
|
|
294 |
|
Other assets |
|
|
(22,642) |
|
|
6,827 |
|
Amounts due to Vornado |
|
|
(469) |
|
|
47 |
|
Accounts payable and accrued expenses |
|
|
(3,709) |
|
|
(7,247) |
|
Income tax liability of taxable REIT subsidiary |
|
|
34 |
|
|
350 |
|
Other liabilities |
|
|
(15) |
|
|
(48) |
Net cash provided by operating activities |
|
|
24,113 |
|
|
40,539 |
|
|
|
|
|
|
|
|
|
CASH FLOW FROM INVESTING ACTIVITIES |
|
|
|
|
|
|
|
|
Proceeds from maturing short-term investments |
|
|
23,000 |
|
|
40,000 |
|
Construction in progress and real estate additions |
|
|
(8,039) |
|
|
(23,715) |
|
Restricted cash |
|
|
(2,583) |
|
|
5,750 |
Net cash provided by investing activities |
|
|
12,378 |
|
|
22,035 |
|
|
|
|
|
|
|
|
|
CASH FLOWS FROM FINANCING ACTIVITIES |
|
|
|
|
|
|
|
|
Proceeds from borrowings |
|
|
250,000 |
|
|
16,204 |
|
Debt repayments |
|
|
(157,090) |
|
|
(35,348) |
|
Dividends paid |
|
|
(30,636) |
|
|
(12,765) |
|
Debt issuance costs |
|
|
(4,435) |
|
|
- |
|
Distributions to noncontrolling interests |
|
|
(600) |
|
|
- |
Net cash provided by (used in) financing activities |
|
|
57,239 |
|
|
(31,909) |
|
|
|
|
|
|
|
|
|
Net increase in cash and cash equivalents |
|
|
93,730 |
|
|
30,665 |
|
Cash and cash equivalents at beginning of period |
|
|
397,220 |
|
|
412,734 |
|
Cash and cash equivalents at end of period |
|
$ |
490,950 |
|
$ |
443,399 |
|
|
|
|
|
|
|
|
|
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION |
|
|
|
|
|
|
|
|
Cash payments for interest (of which $956 was capitalized in 2010) |
|
$ |
28,516 |
|
$ |
26,994 |
|
Cash payments for income taxes |
|
$ |
- |
|
$ |
43 |
|
|
|
|
|
|
|
|
NON-CASH TRANSACTIONS |
|
|
|
|
|
|
|
|
Non-cash additions to real estate included in accounts payable and accrued expenses |
|
$ |
2,391 |
|
$ |
- |
|
Write-off of fully amortized and depreciated assets |
|
$ |
6,510 |
|
$ |
674 |
|
|
|
|
|
|
|
|
See notes to consolidated financial statements (unaudited). |
6
ALEXANDER’S, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
1. Organization
Alexander’s, Inc. (NYSE: ALX) is a real estate investment trust (“REIT”), incorporated in Delaware, engaged in leasing, managing, developing and redeveloping its properties. All references to “we,” “us,” “our,” “Company” and “Alexander’s” refer to Alexander’s, Inc. and its consolidated subsidiaries. We are managed by, and our properties are leased and developed by, Vornado Realty Trust (“Vornado”) (NYSE: VNO).
2. Basis of Presentation
The accompanying consolidated financial statements are unaudited and include the accounts of Alexander’s and its consolidated subsidiaries. All intercompany amounts have been eliminated. In our opinion, all adjustments (which include only normal recurring adjustments) necessary to present fairly the financial position, results of operations and changes in cash flows have been made. Certain information and footnote disclosures normally included in financial statements prepared in accordance with accounting principles generally accepted in the United States of America (“GAAP”) have been condensed or omitted. These condensed consolidated financial statements have been prepared in accordance with the instructions to Form 10-Q of the Securities and Exchange Commission (the “SEC”) and should be read in conjunction with the consolidated financial statements and notes thereto included in our Annual Report on Form 10-K for the year ended December 31, 2010, as filed with the SEC. We have made estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the consolidated financial statements and the reported amounts of revenues and expenses during the reporting periods. Actual results could differ from those estimates.
The results of operations for the three and six months ended June 30, 2011 are not necessarily indicative of the operating results for the full year.
We currently operate in one business segment.
3. Relationship with Vornado
At June 30, 2011, Vornado owned 32.4% of our outstanding common stock. We are managed by, and our properties are leased and developed by, Vornado, pursuant to the agreements described below which expire in March of each year and are automatically renewable.
Management and Development Agreements
We pay Vornado an annual management fee equal to the sum of (i) $3,000,000, (ii) 3% of gross income from the Kings Plaza Regional Shopping Center, (iii) $0.50 per square foot of the tenant-occupied office and retail space at 731 Lexington Avenue and (iv) $256,000, escalating at 3% per annum, for managing the common area of 731 Lexington Avenue.
In addition, Vornado is entitled to a development fee of 6% of development costs, as defined, with minimum guaranteed fees of $750,000 per annum.
Leasing Agreements
Vornado also provides us with leasing services for a fee of 3% of rent for the first ten years of a lease term, 2% of rent for the eleventh through the twentieth year of a lease term, and 1% of rent for the twenty-first through thirtieth year of a lease term, subject to the payment of rents by tenants. In the event third-party real estate brokers are used, the fees to Vornado increase by 1% and Vornado is responsible for the fees to the third-party real estate brokers. Vornado is also entitled to a commission upon the sale of any of our assets equal to 3% of gross proceeds, as defined, for asset sales less than $50,000,000 and 1% of gross proceeds, as defined, for asset sales of $50,000,000 or more. The total of these amounts is payable in annual installments in an amount not to exceed $4,000,000, with interest on the unpaid balance at one-year LIBOR plus 1.0% (1.78% at June 30, 2011).
7
ALEXANDER’S, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(UNAUDITED)
3. Relationship with Vornado – continued
Other Agreements
We have also entered into agreements with Building Maintenance Services, a wholly owned subsidiary of Vornado, to supervise cleaning, engineering and security services at our Lexington Avenue and Kings Plaza properties for an annual fee of the cost for such services plus 6%.
The following is a summary of fees to Vornado under the agreements discussed above.
|
|
Three Months Ended |
|
Six Months Ended | |||||||||
|
|
|
June 30, |
|
June 30, | ||||||||
(Amounts in thousands) |
|
2011 |
|
2010 |
|
2011 |
|
2010 | |||||
Company management fees |
|
$ |
750 |
|
$ |
750 |
|
$ |
1,500 |
|
$ |
1,500 | |
Development fees |
|
|
188 |
|
|
189 |
|
|
376 |
|
|
1,044 | |
Leasing fees |
|
|
1,765 |
|
|
1,338 |
|
|
3,280 |
|
|
2,671 | |
Property management fees and payments for cleaning, engineering |
|
|
|
|
|
|
|
|
|
|
|
| |
|
and security services |
|
|
1,007 |
|
|
1,056 |
|
|
2,133 |
|
|
2,088 |
|
|
|
$ |
3,710 |
|
$ |
3,333 |
|
$ |
7,289 |
|
$ |
7,303 |
At June 30, 2011, we owed Vornado $41,885,000 for leasing fees, and $1,431,000 for management, property management and cleaning fees.
4. Notes and Mortgages Payable
The following is a summary of our outstanding notes and mortgages payable. We may refinance our maturing debt as it comes due or choose to repay it at maturity.
|
|
|
|
|
|
|
|
Balance at |
| ||||
|
|
|
|
Interest Rate at June 30, 2011 |
|
|
June 30, 2011 |
|
December 31, 2010 |
| |||
(Amounts in thousands) |
Maturity |
|
|
|
|
| |||||||
First mortgage, secured by the Paramus property |
Oct. 2011 |
|
5.92 |
% |
|
|
$ |
68,000 |
|
$ |
68,000 |
| |
Construction loan, secured by the |
|
|
|
|
|
|
|
|
|
|
|
| |
|
Rego Park II Shopping Center(1) |
Dec. 2011 |
|
1.50 |
% |
|
|
|
277,200 |
|
|
277,200 |
|
First mortgage, secured by the Rego Park I |
|
|
|
|
|
|
|
|
|
|
|
| |
|
Shopping Center (100% cash collateralized) |
Mar. 2012 |
|
0.75 |
% |
|
|
|
78,246 |
|
|
78,246 |
|
First mortgage, secured by the office space |
|
|
|
|
|
|
|
|
|
|
|
| |
|
at the Lexington Avenue property |
Feb. 2014 |
|
5.33 |
% |
|
|
|
345,875 |
|
|
351,751 |
|
First mortgage, secured by the retail space |
|
|
|
|
|
|
|
|
|
|
|
| |
|
at the Lexington Avenue property(2) |
Jul. 2015 |
|
4.93 |
% |
|
|
|
320,000 |
|
|
320,000 |
|
First mortgage, secured by the Kings Plaza |
|
|
|
|
|
|
|
|
|
|
|
| |
|
Regional Shopping Center(3) |
Jun. 2016 |
|
1.95 |
% |
|
|
|
250,000 |
|
|
151,214 |
|
|
|
|
|
|
|
|
|
$ |
1,339,321 |
|
$ |
1,246,411 |
|
___________________ |
|
|
|
|
|
|
|
|
|
|
|
| |
(1) |
This loan bears interest at LIBOR plus 1.20%. |
| |||||||||||
(2) |
In the event of a substantial casualty, as defined, up to $75,000 of this loan may become recourse to us. |
| |||||||||||
(3) |
On June 10, 2011, we completed a $250,000 refinancing of this property. The five-year interest-only loan is at LIBOR plus 1.70%. We retained net proceeds of approximately $95,000 after repaying the existing loan and costs. |
| |||||||||||
|
8
ALEXANDER’S, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(UNAUDITED)
5. Liability for Income Taxes
In accordance with the provisions of Accounting Standards Codification 740, Income Taxes (“ASC 740”), we have an income tax liability of $3,075,000 and $3,041,000 as of June 30, 2011 and December 31, 2010, respectively. This ASC 740 liability, which includes $2,549,000 and $2,466,000 of accrued interest as of June 30, 2011 and December 31, 2010, respectively, is included as a component of “liability for income taxes and other,” on our consolidated balance sheets. If this liability were reversed, it would result in non-cash income and reduce our effective tax rate. Of this liability, $2,523,000 is expected to reverse in the third quarter of 2011 as a result of the expiration of the applicable statute of limitations. Interest expense related to the ASC 740 liability is included as a component of “interest and debt expense” on our consolidated statements of income. We recognized interest of $45,000 and $111,000 in the three months ended June 30, 2011 and 2010, respectively, and $83,000 and $223,000 in the six months ended June 30, 2011 and 2010, respectively.
As of June 30, 2011, Taxable REIT Subsidiary tax returns for the years 2004 through 2010 and REIT tax returns for the years 2007 through 2010 remain open to examination by the major taxing jurisdictions to which we are subject.
6. Fair Value
ASC 820, Fair Value Measurement and Disclosures defines fair value and establishes a framework for measuring fair value. The objective of fair value is to determine the price that would be received upon the sale of an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date (the exit price). ASC 820 establishes a fair value hierarchy that prioritizes observable and unobservable inputs used to measure fair value into three levels: Level 1 – quoted prices (unadjusted) in active markets that are accessible at the measurement date for assets or liabilities; Level 2 – observable prices that are based on inputs not quoted in active markets, but corroborated by market data; and Level 3 – unobservable inputs that are used when little or no market data is available. The fair value hierarchy gives the highest priority to Level 1 inputs and the lowest priority to Level 3 inputs. In determining fair value, we utilize valuation techniques that maximize the use of observable inputs and minimize the use of unobservable inputs to the extent possible as well as consider counterparty credit risk in our assessment of fair value. Financial assets recorded at fair value in our consolidated financial statements at December 31, 2010 consist solely of short-term investments (CDARS classified as available-for-sale) and are presented in the table below based on their level in the fair value hierarchy. There were no financial assets recorded at fair value at June 30, 2011 and no financial liabilities recorded at fair value at June 30, 2011 and December 31, 2010.
|
|
As of December 31, 2010 |
||||||||||
(Amounts in thousands) |
Total |
|
Level 1 |
|
Level 2 |
|
Level 3 |
|||||
|
Short-term investments |
$ |
23,000 |
|
$ |
23,000 |
|
$ |
- |
|
$ |
- |
|
|
|
|
|
|
|
|
|
|
|
|
|
7. Interest and Other Income, net
In the second quarter of 2011, we recognized $1,657,000 of income from the collection of prior period tenant utility costs.
8. Net Loss on Early Extinguishment of Debt
In the first quarter of 2010, we acquired through the open market, $27,500,000 of our Kings Plaza debt for $28,738,000 in cash, which resulted in a net loss of $1,238,000.
9
ALEXANDER’S, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(UNAUDITED)
9. Stock-Based Compensation
We account for stock-based compensation in accordance with ASC 718, Compensation – Stock Compensation. Our Omnibus Stock Plan (the “Plan”) provides for grants of incentive and non-qualified stock options, restricted stock, stock appreciation rights and performance shares, as defined, to the directors, officers and employees of the Company and Vornado.
On May 26, 2011, the Company granted each of the members of its Board of Directors, 131 Deferred Stock Units (“DSUs”). The DSUs entitle the holder to receive shares of the Company’s common stock without the payment of any consideration. The DSUs vested immediately but the shares of common stock underlying the units are not deliverable to the grantee until the grantee is no longer serving on the Company’s Board of Directors. In connection with this grant, we expensed $300,000, representing the fair value of these awards on the date of grant. This expense is included as a component of “general and administrative” expense on our consolidated statements of income for the three and six months ended June 30, 2011.
10. Commitments and Contingencies
Insurance
We maintain general liability insurance with limits of $300,000,000 per occurrence and all-risk property and rental value insurance coverage with limits of $1.7 billion per occurrence, including coverage for terrorist acts, with sub-limits for certain perils such as floods and earthquakes on each of our properties.
In June 2011, we formed Fifty Ninth Street Insurance Company, LLC (“FNSIC”), a wholly owned consolidated subsidiary, to act as a direct insurer for coverage for acts of terrorism, including nuclear, biological, chemical and radiological (“NBCR”) acts, as defined by the Terrorism Risk Insurance Program Reauthorization Act of 2007 (“TRIPRA”). Coverage for acts of terrorism (including NBCR acts) is up to $1.7 billion per occurrence. Coverage for acts of terrorism (excluding NBCR acts) is fully reinsured by third party insurance companies with no exposure to FNSIC. For NBCR acts, FNSIC is responsible for a $275,000 deductible and 15% of the balance of a covered loss and the Federal government is responsible for the remaining 85% of a covered loss. We are ultimately responsible for any loss borne by FNSIC.
There can be no assurance that we will be able to maintain similar levels of insurance coverage in the future in amounts and on terms that are commercially reasonable. We are responsible for deductibles and losses in excess of our insurance coverage, which could be material.
Our mortgage loans are non-recourse to us, except for $75,000,000 of the $320,000,000 mortgage on our 731 Lexington Avenue property, in the event of a substantial casualty, as defined. Our mortgage loans contain customary covenants requiring us to maintain insurance. If lenders insist on greater coverage than we are able to obtain, it could adversely affect our ability to finance our properties.
Environmental Remediation
In July 2006, we discovered an oil spill at our Kings Plaza Regional Shopping Center. We have notified the New York State Department of Environmental Conservation (“NYSDEC”) about the spill and have developed a remediation plan. The NYSDEC has approved a portion of the remediation plan and clean up is ongoing. The estimated costs associated with the clean up will aggregate approximately $2,500,000. We have paid $500,000 of such amount and the remainder is covered under our insurance policy.
10
ALEXANDER’S, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(UNAUDITED)
10. Commitments and Contingencies - continued
Paramus
In 2001, we leased 30.3 acres of land located in Paramus, New Jersey to IKEA Property, Inc. The lease has a 40-year term with a purchase option in 2021 for $75,000,000. We have a $68,000,000 interest only, non-recourse mortgage loan on the property from a third party lender. The fixed interest rate on the debt is 5.92% with interest payable monthly until maturity in October 2011. The annual triple-net rent is the sum of $700,000 plus the amount of debt service on the mortgage loan. If the purchase option is exercised, we will receive net cash proceeds of approximately $7,000,000 and recognize a gain on sale of land of approximately $62,000,000. If the purchase option is not exercised, the triple-net rent for the last 20 years must include the debt service sufficient to fully amortize $68,000,000 over the remaining 20-year lease term.
Flushing Property
In the fourth quarter of 2003, we recognized $1,289,000 of income representing a non-refundable deposit of $1,875,000, net of $586,000 of costs associated with the transaction, from a party that had agreed to purchase this property, as such party had not met its obligations under a May 30, 2002 purchase contract. On September 10, 2002, November 7, 2002, and July 8, 2004, we received letters from the party demanding return of the deposit. On December 28, 2005, the party filed a complaint against us in the New York State Court alleging that we failed to honor the terms and conditions of the agreement. The complaint sought specific performance and, if specific performance was denied, it sought a return of the deposit plus interest and $50,000 in costs. In August 2010, the New York State Court entered judgment denying specific performance and ordered us to return the deposit together with accrued interest and fees. On August 12, 2010, we filed a notice of appeal and the judgment was stayed pending the appeal. In June 2011, we settled with the party for $2,400,000, and reversed $807,000 of the $3,207,000 litigation loss accrual. This reversal is included as a reduction of “general and administrative” expenses on our consolidated statements of income for the three and six months ended June 30, 2011.
Letters of Credit
Approximately $7,998,000 of standby letters of credit were issued and outstanding as of June 30, 2011.
Other
There are various other legal actions against us in the ordinary course of business. In our opinion, the outcome of such matters in the aggregate will not have a material effect on our financial condition, results of operations or cash flows.
11. Significant Tenants
Bloomberg L.P. (“Bloomberg”) accounted for $41,504,000 and $41,169,000, or 33% and 35% of our consolidated revenues in the six months ended June 30, 2011 and 2010, respectively. No other tenant accounted for more than 10% of our consolidated revenues. If we were to lose Bloomberg as a tenant, or if Bloomberg were to fail or become unable to perform its obligations under its lease, it would adversely affect our results of operations and financial condition. We receive and evaluate certain confidential financial information and metrics from Bloomberg on a semi-annual basis. In addition, we access and evaluate financial information regarding Bloomberg from private sources, as well as publicly available data.
11
ALEXANDER’S, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(UNAUDITED)
12. Earnings Per Share
The following table sets forth the computation of basic and diluted income per share, including a reconciliation of net income and the number of shares used in computing basic and diluted earnings per share. Basic income per share is determined using the weighted average shares of common stock outstanding during the period, including deferred stock units. Diluted income per share is determined using the weighted average shares of common stock outstanding during the period, including deferred stock units, and assumes all potentially dilutive securities were converted into common shares at the earliest date possible. There were no potentially dilutive securities outstanding during the three and six months ended June 30, 2011 and 2010.
|
|
|
|
|
Three Months Ended |
|
Six Months Ended | ||||||||
|
|
|
|
|
June 30, |
|
June 30, | ||||||||
(Amounts in thousands, except share and per share amounts) |
|
2011 |
|
2010 |
|
2011 |
|
2010 | |||||||
|
Net income attributable to common |
|
|
|
|
|
|
|
|
|
|
|
| ||
|
|
stockholders – basic and diluted |
|
$ |
20,157 |
|
$ |
15,549 |
|
$ |
38,364 |
|
$ |
30,663 | |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted average shares outstanding – basic and diluted |
|
|
5,106,351 |
|
|
5,105,936 |
|
|
5,106,144 |
|
|
5,105,936 | ||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income per common share – basic and diluted |
|
$ |
3.95 |
|
$ |
3.05 |
|
$ |
7.51 |
|
$ |
6.01 | ||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| |||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
12
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors and Stockholders of
Alexander’s, Inc.
Paramus, New Jersey
We have reviewed the accompanying consolidated balance sheet of Alexander’s, Inc. and subsidiaries (the “Company”) as of June 30, 2011, and the related consolidated statements of income for the three-month and six-month periods ended June 30, 2011 and 2010, and consolidated statements of changes in equity and cash flows for the six-month periods ended June 30, 2011 and 2010. These interim financial statements are the responsibility of the Company’s management.
We conducted our reviews in accordance with the standards of the Public Company Accounting Oversight Board (United States). A review of interim financial information consists principally of applying analytical procedures and making inquiries of persons responsible for financial and accounting matters. It is substantially less in scope than an audit conducted in accordance with standards of the Public Company Accounting Oversight Board (United States), the objective of which is the expression of an opinion regarding the financial statements taken as a whole. Accordingly, we do not express such an opinion.
Based on our reviews, we are not aware of any material modifications that should be made to such consolidated interim financial statements for them to be in conformity with accounting principles generally accepted in the United States of America.
We have previously audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the consolidated balance sheet of Alexander’s, Inc. and subsidiaries as of December 31, 2010, and the related consolidated statements of income, changes in equity and cash flows for the year then ended (not presented herein); and in our report dated February 22, 2011, we expressed an unqualified opinion on those consolidated financial statements. In our opinion, the information set forth in the accompanying consolidated balance sheet as of December 31, 2010 is fairly stated, in all material respects, in relation to the consolidated balance sheet from which it has been derived.
/s/ DELOITTE & TOUCHE LLP
Parsippany, New Jersey
August 1, 2011
13
ITEM 2. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
Certain statements contained herein constitute forward-looking statements as such term is defined in Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended. Forward-looking statements are not guarantees of future performance. They involve risks, uncertainties and assumptions. Our future results, financial condition, results of operations and business may differ materially from those expressed in these forward-looking statements. You can find many of these statements by looking for words such as “approximates,” “believes,” “expects,” “anticipates,” “estimates,” “intends,” “plans,” “would,” “may” or other similar expressions in this Quarterly Report on Form 10‑Q. These forward-looking statements represent our intentions, plans, expectations and beliefs and are subject to numerous assumptions, risks and uncertainties. Many of the factors that will determine these items are beyond our ability to control or predict. For a further discussion of factors that could materially affect the outcome of our forward-looking statements, see “Item 1A - Risk Factors” in our Annual Report on Form 10‑K. For these statements, we claim the protection of the safe harbor for forward-looking statements contained in the Private Securities Litigation Reform Act of 1995. You are cautioned not to place undue reliance on the forward-looking statements, which speak only as of the date of this Quarterly Report on Form 10-Q or the date of any document incorporated by reference. All subsequent written and oral forward-looking statements attributable to us or any person acting on our behalf are expressly qualified in their entirety by the cautionary statements contained or referred to in this section. We do not undertake any obligation to release publicly, any revisions to our forward-looking statements to reflect events or circumstances after the date of this Quarterly Report on Form 10-Q.
Management’s Discussion and Analysis of Financial Condition and Results of Operations include a discussion of our consolidated financial statements for the three and six months ended June 30, 2011 and 2010. The preparation of financial statements in conformity with accounting principles generally accepted in the United States of America requires us to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting periods. Actual results could differ from those estimates.
Critical Accounting Policies
A summary of our critical accounting policies is included in our Annual Report on Form 10-K for the year ended December 31, 2010 in “Item 7. Management’s Discussion and Analysis of Financial Conditions and Results of Operations” and “Note 2 – Summary of Significant Accounting Policies” to the consolidated financial statements included therein. There have been no significant changes to these policies during 2011.
14
Overview
Alexander’s, Inc. (NYSE: ALX) is a real estate investment trust (“REIT”), incorporated in Delaware, engaged in leasing, managing, developing and redeveloping properties. All references to “we,” “us,” “our,” “Company,” and “Alexander’s”, refer to Alexander’s, Inc. and its consolidated subsidiaries. We are managed by, and our properties are leased and developed by, Vornado Realty Trust (“Vornado”) (NYSE: VNO). We have seven properties in the greater New York City metropolitan area.
We compete with a large number of property owners and developers. Our success depends upon, among other factors, trends of national and local economies, the financial condition and operating results of current and prospective tenants, the availability and cost of capital, interest rates, construction and renovation costs, taxes, governmental regulations and legislation, population trends, zoning laws, and our ability to lease, sublease or sell our properties, at profitable levels. Our success is also subject to our ability to refinance existing debt on acceptable terms as it comes due.
On June 10, 2011 we completed a $250,000,000 refinancing of our Kings Plaza property. The five-year interest-only loan is at LIBOR plus 1.70% (1.95% at June 30, 2011). We retained net proceeds of approximately $95,000,000 after repaying the existing loan and costs.
Quarter Ended June 30, 2011
Net income attributable to common stockholders for the quarter ended June 30, 2011 was $20,157,000, or $3.95 per diluted share, compared to $15,549,000, or $3.05 per diluted share, for the quarter ended June 30, 2010. Funds from operations attributable to common stockholders (“FFO”) for the quarter ended June 30, 2011 was $28,596,000, or $5.60 per diluted share, compared to $23,227,000, or $4.55 per diluted share, for the prior year’s quarter. Net income attributable to common stockholders and FFO for the quarter ended June 30, 2011 include $1,657,000 of income from the collection of prior period tenant utility costs and $807,000 of income from the reversal of previously recognized expense in connection with a litigation settlement at our Flushing property. The aggregate of these items increased net income attributable to common stockholders and FFO by $2,464,000, or $0.48 per diluted share, for the quarter ended June 30, 2011.
Six Months Ended June 30, 2011
Net income attributable to common stockholders for the six months ended June 30, 2011 was $38,364,000, or $7.51 per diluted share, compared to $30,663,000, or $6.01 per diluted share, for the six months ended June 30, 2010. FFO for the six months ended June 30, 2011 was $54,900,000, or $10.75 per diluted share, compared to $45,665,000, or $8.94 per diluted share, for the prior year’s six months. Net income attributable to common stockholders and FFO for the six months ended June 30, 2011 include $1,657,000 of income from the collection of prior period tenant utility costs and $807,000 of income from the reversal of previously recognized expense in connection with a litigation settlement at our Flushing property. The aggregate of these items increased net income attributable to common stockholders and FFO by $2,464,000, or $0.48 per diluted share, for the six months ended June 30, 2011. The six months ended June 30, 2010 includes a net loss on the early extinguishment of debt of $1,238,000, or $0.24 per diluted share.
Significant Tenants
Bloomberg L.P. (“Bloomberg”) accounted for $41,504,000 and $41,169,000, or 33% and 35% of our consolidated revenues in the six months ended June 30, 2011 and 2010, respectively. No other tenant accounted for more than 10% of our consolidated revenues. If we were to lose Bloomberg as a tenant, or if Bloomberg were to fail or become unable to perform its obligations under its lease, it would adversely affect our results of operations and financial condition. We receive and evaluate certain confidential financial information and metrics from Bloomberg on a semi-annual basis. In addition, we access and evaluate financial information regarding Bloomberg from private sources, as well as publicly available data.
15
Results of Operations – Three Months Ended June 30, 2011 compared to June 30, 2010
Property Rentals
Property rentals were $43,424,000 in the quarter ended June 30, 2011, compared to $40,790,000 in the prior year’s quarter, an increase of $2,634,000. This increase was primarily attributable to the lease up of space at our Kings Plaza, Rego Park I and Rego Park II properties, portions of which were placed into service subsequent to the second quarter of 2010.
Expense Reimbursements
Tenant expense reimbursements were $18,612,000 in the quarter ended June 30, 2011, compared to $18,376,000 in the prior year’s quarter, an increase of $236,000. This increase was primarily due to higher real estate taxes, partially offset by income in the prior year resulting from a true-up in operating expense billings.
Operating Expenses
Operating expenses were $19,951,000 in the quarter ended June 30, 2011, compared to $18,817,000 in the prior year’s quarter, an increase of $1,134,000. This increase was primarily due to higher real estate taxes of $761,000 and an increase in other non-reimbursable expenses of $444,000, partially offset by a decrease in bad debt expense of $62,000.
Depreciation and Amortization
Depreciation and amortization was $8,577,000 in the quarter ended June 30, 2011, compared to $7,801,000 in the prior year’s quarter, an increase of $776,000. This increase resulted primarily from depreciation on the portion of Rego Park II placed into service subsequent to the second quarter of 2010.
General and Administrative Expenses
General and administrative expenses were $700,000 in the quarter ended June 30, 2011, compared to $1,313,000 in the prior year’s quarter, a decrease of $613,000. This decrease was primarily due to the reversal of a portion of the Flushing litigation loss accrual of $807,000, partially offset by $300,000 of expense resulting from a deferred stock unit (“DSU”) grant to the members of our Board of Directors on May 26, 2011. The DSUs vested immediately but the shares of common stock underlying the units are not deliverable to the grantee until the grantee is no longer serving on the Company’s Board of Directors.
Interest and Other Income, net
Interest and other income, net was $1,715,000 in the quarter ended June 30, 2011, compared to $204,000 in the prior year’s quarter, an increase of $1,511,000. This increase was primarily due to $1,657,000 of income from the collection of prior period tenant utility costs, partially offset by lower average yields on investments (0.03% in the quarter ended June 30, 2011 as compared to 0.12% in the prior year’s quarter).
Interest and Debt Expense
Interest and debt expense was $14,319,000 in the quarter ended June 30, 2011, compared to $15,131,000 in the prior year’s quarter, a decrease of $812,000. This decrease was comprised of $660,000 primarily from lower average interest rates (4.19% in the quarter ended June 30, 2011 as compared to 4.39% in the prior year’s quarter) and $152,000 from lower amortization of deferred debt issuance costs.
Income Tax Expense
In the quarter ended June 30, 2011, income tax expense was $9,000, compared to $159,000 in the prior year’s quarter, a decrease of $150,000. This decrease resulted from lower projected taxable income from our Kings Plaza energy plant joint venture, a taxable REIT subsidiary.
Net Income Attributable to the Noncontrolling Interest
Net income attributable to the noncontrolling interest was $38,000 in the quarter ended June 30, 2011, compared to $600,000 in the prior year’s quarter, and represents our venture partner’s 75% pro rata share of net income from our consolidated partially owned entity, the Kings Plaza energy plant joint venture.
16
Results of Operations – Six Months Ended June 30, 2011 compared to June 30, 2010
Property Rentals
Property rentals were $86,889,000 in the six months ended June 30, 2011, compared to $81,005,000 in the prior year’s six months, an increase of $5,884,000. This increase was primarily attributable to the lease up of space at our Kings Plaza, Rego Park I and Rego Park II properties, portions of which were placed into service subsequent to the second quarter of 2010.
Expense Reimbursements
Tenant expense reimbursements were $38,019,000 in the six months ended June 30, 2011, compared to $36,705,000 in the prior year’s six months, an increase of $1,314,000. This increase was primarily due to higher real estate taxes and reimbursable operating expenses, partially offset by income in the prior year resulting from a true-up in operating expense and real estate tax billings.
Operating Expenses
Operating expenses were $41,138,000 in the six months ended June 30, 2011, compared to $37,873,000 in the prior year’s six months, an increase of $3,265,000. This increase was comprised of higher real estate taxes and reimbursable operating expenses of $2,501,000 and an increase in bad debt expense and other non-reimbursable expenses of $764,000.
Depreciation and Amortization
Depreciation and amortization was $16,811,000 in the six months ended June 30, 2011, compared to $15,248,000 in the prior year’s six months, an increase of $1,563,000. This increase resulted primarily from depreciation on the portion of Rego Park II placed into service subsequent to the second quarter of 2010.
General and Administrative Expenses
General and administrative expenses were $1,799,000 in the six months ended June 30, 2011, compared to $2,437,000 in the prior year’s six months, a decrease of $638,000. This decrease was primarily due to the reversal of a portion of the Flushing litigation loss accrual of $807,000, partially offset by $300,000 of expense resulting from a DSU grant to the members of our Board of Directors on May 26, 2011.
Interest and Other Income, net
Interest and other income, net was $1,820,000 in the six months ended June 30, 2011, compared to $487,000 in the prior year’s six months, an increase of $1,333,000. This increase was primarily due to $1,657,000 of income from the collection of prior period tenant utility costs, partially offset by lower average yields on investments (0.04% in the six months ended June 30, 2011 as compared to 0.13% in the prior year’s six months).
Interest and Debt Expense
Interest and debt expense was $29,124,000 in the six months ended June 30, 2011, compared to $29,877,000 in the prior year’s six months, a decrease of $753,000. This decrease was comprised of (i) $1,418,000 primarily from lower average interest rates (4.30% in the six months ended June 30, 2011 as compared to 4.44% in the prior year’s six months) and (ii) $291,000 from lower amortization of deferred debt issuance costs, partially offset by (iii) $956,000 of lower capitalized interest as a result of placing a portion of the Rego Park II property into service during 2010.
Net Loss on Early Extinguishment of Debt
Net loss on early extinguishment of debt was $1,238,000 in the six months ended June 30, 2010 resulting from the open market purchase of $27,500,000 of our Kings Plaza debt.
17
Results of Operations – Six Months Ended June 30, 2011 compared to June 30, 2010 - continued
Income Tax Benefit (Expense)
In the six months ended June 30, 2011, we had an income tax benefit of $151,000, compared to an expense of $259,000 in the prior year’s six months, a decrease in expense of $410,000. This decrease resulted primarily from a true-up of our estimated income tax liability in the current year and lower projected taxable income from our Kings Plaza energy plant joint venture, a taxable REIT subsidiary.
Net Loss (Income) Attributable to the Noncontrolling Interest
Net loss attributable to the noncontrolling interest was $357,000 in the six months ended June 30, 2011, compared to income of $602,000 in the prior year’s six months, and represents our venture partner’s 75% pro rata share of net income or loss from our consolidated partially owned entity, the Kings Plaza energy plant joint venture.
18
Liquidity and Capital Resources
We anticipate that cash from operations over the next twelve months, together with existing cash balances, will be adequate to fund our business operations, cash dividends to stockholders, debt amortization and recurring capital expenditures.
Cash Flows
Property rental income is our primary source of cash flow and is dependent on a number of factors including the occupancy level and rental rates of our properties, as well as our tenants’ ability to pay their rents. Our properties provide us with a relatively consistent stream of cash flow that enables us to pay our operating expenses, interest expense, recurring capital expenditures and cash dividends to stockholders. Other sources of liquidity to fund cash requirements include our existing cash, proceeds from financings, including mortgage or construction loans secured by our properties, and proceeds from asset sales.
During the remainder of 2011, $345,200,000 of our outstanding debt is scheduled to mature. We may refinance our maturing debt as it comes due or choose to repay it at maturity.
Six Months Ended June 30, 2011
Cash and cash equivalents were $490,950,000 at June 30, 2011, compared to $397,220,000 at December 31, 2010, an increase of $93,730,000. This increase resulted from $24,113,000 of net cash provided by operating activities, $12,378,000 of net cash provided by investing activities and $57,239,000 of net cash provided by financing activities.
Net cash provided by operating activities of $24,113,000 was comprised of net income of $38,007,000 and adjustments for non-cash items of $11,472,000, partially offset by the net change in operating assets and liabilities of $25,366,000. The adjustments for non-cash items were comprised of depreciation and amortization of $18,254,000 and stock-based compensation expense of $300,000, partially offset by straight-lining of rental income of $7,082,000. The net change in operating assets and liabilities was primarily due to higher prepaid real estate taxes of $21,740,000.
Net cash provided by investing activities of $12,378,000 was comprised of proceeds from maturing short-term investments of $23,000,000, partially offset by capital expenditures of $8,039,000 (primarily Rego Park II) and a decrease in restricted cash of $2,583,000.
Net cash provided by financing activities of $57,239,000 was primarily comprised of $250,000,000 of proceeds from the refinancing of our Kings Plaza property, partially offset by repayments of borrowings of $157,090,000 (primarily Kings Plaza) and dividends paid on common stock of $30,636,000.
Six Months Ended June 30, 2010
Cash and cash equivalents were $443,399,000 at June 30, 2010, compared to $412,734,000 at December 31, 2009, an increase of $30,665,000. This increase resulted from $40,539,000 of net cash provided by operating activities and $22,035,000 of net cash provided by investing activities, partially offset by $31,909,000 of net cash used in financing activities.
Net cash provided by operating activities of $40,539,000 was comprised of net income of $31,265,000, adjustments for non-cash items of $9,051,000 and the net change in operating assets and liabilities of $223,000. The adjustments for non-cash items were comprised of depreciation and amortization of $16,982,000, partially offset by straight-lining of rental income of $7,931,000.
Net cash provided by investing activities of $22,035,000 was comprised of proceeds from maturing short-term investments of $40,000,000 and restricted cash of $5,750,000, partially offset by capital expenditures of $23,715,000, primarily related to the development of our Rego Park II project.
Net cash used in financing activities of $31,909,000 was comprised of a $27,500,000 purchase of our Kings Plaza debt, dividends paid on common stock of $12,765,000 and debt amortization of $7,848,000, partially offset by $16,204,000 of borrowings under our Rego Park II construction loan.
19
Liquidity and Capital Resources – continued
Commitments and Contingencies
Insurance
We maintain general liability insurance with limits of $300,000,000 per occurrence and all-risk property and rental value insurance coverage with limits of $1.7 billion per occurrence, including coverage for terrorist acts, with sub-limits for certain perils such as floods and earthquakes on each of our properties.
In June 2011, we formed Fifty Ninth Street Insurance Company, LLC (“FNSIC”), a wholly owned consolidated subsidiary, to act as a direct insurer for coverage for acts of terrorism, including nuclear, biological, chemical and radiological (“NBCR”) acts, as defined by the Terrorism Risk Insurance Program Reauthorization Act of 2007 (“TRIPRA”). Coverage for acts of terrorism (including NBCR acts) is up to $1.7 billion per occurrence. Coverage for acts of terrorism (excluding NBCR acts) is fully reinsured by third party insurance companies with no exposure to FNSIC. For NBCR acts, FNSIC is responsible for a $275,000 deductible and 15% of the balance of a covered loss and the Federal government is responsible for the remaining 85% of a covered loss. We are ultimately responsible for any loss borne by FNSIC.
There can be no assurance that we will be able to maintain similar levels of insurance coverage in the future in amounts and on terms that are commercially reasonable. We are responsible for deductibles and losses in excess of our insurance coverage, which could be material.
Our mortgage loans are non-recourse to us, except for $75,000,000 of the $320,000,000 mortgage on our 731 Lexington Avenue property, in the event of a substantial casualty, as defined. Our mortgage loans contain customary covenants requiring us to maintain insurance. If lenders insist on greater coverage than we are able to obtain, it could adversely affect our ability to finance our properties.
Environmental Remediation
In July 2006, we discovered an oil spill at our Kings Plaza Regional Shopping Center. We have notified the New York State Department of Environmental Conservation (“NYSDEC”) about the spill and have developed a remediation plan. The NYSDEC has approved a portion of the remediation plan and clean up is ongoing. The estimated costs associated with the clean up will aggregate approximately $2,500,000. We have paid $500,000 of such amount and the remainder is covered under our insurance policy.
Paramus
In 2001, we leased 30.3 acres of land located in Paramus, New Jersey to IKEA Property, Inc. The lease has a 40-year term with a purchase option in 2021 for $75,000,000. We have a $68,000,000 interest only, non-recourse mortgage loan on the property from a third party lender. The fixed interest rate on the debt is 5.92% with interest payable monthly until maturity in October 2011. The annual triple-net rent is the sum of $700,000 plus the amount of debt service on the mortgage loan. If the purchase option is exercised, we will receive net cash proceeds of approximately $7,000,000 and recognize a gain on sale of land of approximately $62,000,000. If the purchase option is not exercised, the triple-net rent for the last 20 years must include the debt service sufficient to fully amortize $68,000,000 over the remaining 20-year lease term.
Letters of Credit
Approximately $7,998,000 of standby letters of credit were issued and outstanding as of June 30, 2011.
Other
There are various other legal actions against us in the ordinary course of business. In our opinion, the outcome of such matters in the aggregate will not have a material effect on our financial condition, results of operations or cash flows.
20
Funds from Operations (“FFO”)
FFO is computed in accordance with the definition adopted by the Board of Governors of the National Association of Real Estate Investment Trusts (“NAREIT”). NAREIT defines FFO as GAAP net income or loss adjusted to exclude net gains from sales of depreciated real estate assets, depreciation and amortization expense from real estate assets, extraordinary items and other specified non-cash items, including the pro rata share of such adjustments of unconsolidated subsidiaries. FFO and FFO per diluted share are used by management, investors and analysts to facilitate meaningful comparisons of operating performance between periods and among our peers because it excludes the effect of real estate depreciation and amortization and net gains on sales, which are based on historical costs and implicitly assume that the value of real estate diminishes predictably over time, rather than fluctuating based on existing market conditions. FFO does not represent cash generated from operating activities and is not necessarily indicative of cash available to fund cash requirements and should not be considered as an alternative to net income as a performance measure or cash flow as a liquidity measure. FFO may not be comparable to similarly titled measures employed by other companies. A reconciliation of our net income to FFO is provided below.
FFO Attributable to Common Stockholders for the Three and Six Months Ended June 30, 2011 and 2010
FFO attributable to common stockholders for the quarter ended June 30, 2011 was $28,596,000, or $5.60 per diluted share, compared to $23,227,000, or $4.55 per diluted share, for the prior year’s quarter. FFO attributable to common stockholders for the six months ended June 30, 2011 was $54,900,000, or $10.75 per diluted share, compared to $45,665,000, or $8.94 per diluted share, for the prior year’s six months.
The following table reconciles our net income to FFO:
|
|
|
|
Three Months Ended |
|
Six Months Ended | ||||||||
|
|
|
|
June 30, |
|
June 30, | ||||||||
(Amounts in thousands, except share and per share amounts) |
2011 |
|
2010 |
|
2011 |
|
2010 | |||||||
Net income attributable to Alexander’s |
$ |
20,157 |
|
$ |
15,549 |
|
$ |
38,364 |
|
$ |
30,663 | |||
Depreciation and amortization of real property |
|
8,439 |
|
|
7,678 |
|
|
16,536 |
|
|
15,002 | |||
FFO attributable to common stockholders |
$ |
28,596 |
|
$ |
23,227 |
|
$ |
54,900 |
|
$ |
45,665 | |||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
FFO attributable to common stockholders per diluted share |
$ |
5.60 |
|
$ |
4.55 |
|
$ |
10.75 |
|
$ |
8.94 | |||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted average shares used in computing diluted FFO per share |
|
5,106,351 |
|
|
5,105,936 |
|
|
5,106,144 |
|
|
5,105,936 | |||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
21
Item 3. Quantitative and Qualitative Disclosures About Market Risk
We have exposure to fluctuations in interest rates, which are sensitive to many factors that are beyond our control. Our exposure to a change in interest rates is summarized in the table below.
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance as of |
|
|
|
|
Effect of 1% |
| ||
|
|
June 30, |
|
Weighted-Average |
|
Change in |
| |||
|
(Amounts in thousands, except per share amounts) |
2011 |
|
Interest Rate |
|
Base Rates |
| |||
|
Variable Rate (including $41,885 due to Vornado) |
$ |
569,085 |
|
1.72 |
% |
|
$ |
5,691 |
|
|
Fixed Rate |
|
812,121 |
|
4.78 |
% |
|
|
- |
|
|
|
$ |
1,381,206 |
|
|
|
|
$ |
5,691 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Total effect on diluted earnings per share |
|
|
|
|
|
|
$ |
1.11 |
|
The fair value of our consolidated debt is calculated by discounting the future contractual cash flows of our existing debt using the current rates available to borrowers with similar credit ratings for the remaining terms of such debt. As of June 30, 2011, and December 31, 2010, the estimated fair value of our consolidated debt was $1,403,766,000 and $1,315,436,000, respectively. Our fair value estimates, which are made at the end of the reporting period, may be different from the amounts that may ultimately be realized upon the disposition of our financial instruments.
Item 4. Controls and Procedures
(a) Disclosure Controls and Procedures: Our management, with the participation of our Chief Executive Officer and Chief Financial Officer, has evaluated the effectiveness of our disclosure controls and procedures (as such term is defined in Rules 13a-15(e) and 15d-15(e) under the Securities Exchange Act of 1934, as amended) as of the end of the period covered by this Quarterly Report on Form 10-Q. Based on such evaluation, our Chief Executive Officer and Chief Financial Officer have concluded that, as of the end of such period, our disclosure controls and procedures are effective.
(b) Internal Control Over Financial Reporting: There have not been any changes in our internal control over financial reporting during the fiscal quarter to which this Quarterly Report on Form 10-Q relates that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
22
PART II. OTHER INFORMATION
Item 1. Legal Proceedings
We are from time to time involved in legal actions arising in the ordinary course of business. In our opinion, the outcome of such matters in the aggregate will not have a material effect on our financial condition, results of operations or cash flows.
Item 1A. Risk Factors
There have been no material changes in our “Risk Factors” as previously disclosed in our Annual Report on Form 10-K for the year ended December 31, 2010.
Item 2. Unregistered Sales of Equity Securities and Use of Proceeds
None.
Item 3. Defaults Upon Senior Securities
None.
Item 5. Other Information
None.
Item 6. Exhibits
Exhibits required by Item 601 of Regulation S-K are filed herewith and are listed in the attached Exhibit Index.
23
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
|
|
ALEXANDER’S, INC. |
|
|
(Registrant) |
|
|
|
|
|
|
|
|
|
|
|
|
Date: August 1, 2011 |
By: |
/s/ Joseph Macnow |
|
|
Joseph Macnow, Executive Vice President and |
24
|
|
|
EXHIBIT INDEX |
|
Exhibit |
|
|
|
|
No. |
|
|
|
|
3.1 |
|
- |
Amended and Restated Certificate of Incorporation. Incorporated herein by reference from Exhibit 3.1 to the registrant’s Registration Statement on Form S-3 filed on September 20, 1995 |
* |
|
|
|
|
|
3.2 |
|
- |
By-laws, as amended. Incorporated herein by reference from Exhibit 10.1 to the registrant’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2000 |
* |
|
|
|
|
|
10.1 |
|
- |
Real Estate Retention Agreement dated as of July 20, 1992, between Vornado Realty Trust and Keen Realty Consultants, Inc., each as special real estate consultants, and the Company. Incorporated herein by reference from Exhibit 10(i)(O) to the registrant’s Annual Report on Form 10-K for the fiscal year ended July 25, 1992 |
* |
|
|
|
|
|
10.2 |
|
- |
Extension Agreement to the Real Estate Retention Agreement, dated as of February 6, 1995, between the Company and Vornado Realty Trust. Incorporated herein by reference from Exhibit 10(i)(G)(2) to the registrant’s Annual Report Form 10-K for the year ended December 31, 1994 |
* |
|
|
|
|
|
10.3 |
|
- |
Agreement of Lease dated as of April 30, 2001 between Seven Thirty One Limited Partnership, landlord, and Bloomberg L.P., tenant. Incorporated herein by reference from Exhibit 10(v) B to the registrant’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2001, filed on August 2, 2001 |
* |
|
|
|
|
|
10.4 |
|
- |
Loan Agreement dated as of October 2, 2001 by and between ALX of Paramus LLC as borrower, and SVENSKA HANDELSBANKEN AB (publ), as lender. Incorporated herein by reference from Exhibit 10(v)(C)(1) to the registrant’s Annual Report on Form 10-K for the year ended December 31, 2001, filed on March 13, 2002 |
* |
|
|
|
|
|
10.5 |
|
- |
Mortgage, Security Agreement and Fixture Financing Statement dated as of October 2, 2001 by and between ALX of Paramus LLC as borrower, and SVENSKA HANDELSBANKEN AB (publ), as lender. Incorporated herein by reference from Exhibit 10(v)(C)(2) to the registrant’s Annual Report on Form 10-K for the year ended December 31, 2001, filed on March 13, 2002 |
* |
|
|
|
|
|
10.6 |
|
- |
Environmental undertaking letter dated as of October 2, 2001 by and between ALX of Paramus LLC, as borrower, and SVENSKA HANDELSBANKEN AB (publ), as lender. Incorporated herein by reference from Exhibit 10(v)(C)(3) to the registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2001, filed on March 13, 2002 |
* |
|
|
|
|
|
10.7 |
|
- |
Lease dated as of October 2, 2001 by and between ALX of Paramus LLC, as Landlord, and IKEA Property, Inc. as Tenant. Incorporated herein by reference from Exhibit 10(v)(C)(4) to the registrant’s Annual Report on Form 10-K for the year ended December 31, 2001, filed on March 13, 2002 |
* |
|
|
|
|
|
10.8 |
|
- |
First Amendment to Real Estate Retention Agreement, dated as of July 3, 2002, by and between Alexander’s, Inc. and Vornado Realty, L.P. Incorporated herein by reference from Exhibit 10(i)(E)(3) to the registrant’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2002, filed on August 7, 2002 |
* |
|
|
|
___________________ |
|
|
* |
|
Incorporated by reference. |
|
25
10.9 |
|
- |
59th Street Real Estate Retention Agreement, dated as of July 3, 2002, by and between Vornado Realty, L.P., 731 Residential LLC and 731 Commercial LLC. Incorporated herein by reference from Exhibit 10(i)(E)(4) to the registrant’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2002, filed on August 7, 2002 |
* |
|
|
|
|
|
10.10 |
|
- |
Amended and Restated Management and Development Agreement, dated as of July 3, 2002, by and between Alexander’s, Inc., the subsidiaries party thereto and Vornado Management Corp. Incorporated herein by reference from Exhibit 10(i)(F)(1) to the registrant’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2002, filed on August 7, 2002 |
* |
|
|
|
|
|
10.11 |
|
- |
Kings Plaza Management Agreement, dated as of May 31, 2001, by and between Alexander’s Kings Plaza LLC and Vornado Management Corp. Incorporated herein by reference from Exhibit 10(i)(F)(3) to the registrant’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2002, filed on August 7, 2002 |
* |
|
|
|
|
|
10.12 |
|
- |
Limited Liability Company Operating Agreement of 731 Residential LLC, dated as of July 3, 2002, among 731 Residential Holding LLC, as the sole member, Domenic A. Borriello, as an Independent Manager and Kim Lutthang, as an Independent Manager. Incorporated herein by reference from Exhibit 10(i)(A)(1) to the registrant’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2002, filed on August 7, 2002 |
* |
|
|
|
|
|
10.13 |
|
- |
Limited Liability Company Operating Agreement of 731 Commercial LLC, dated as of July 3, 2002, among 731 Commercial Holding LLC, as the sole member, Domenic A. Borriello, as an Independent Manager and Kim Lutthang, as an Independent Manager. Incorporated herein by reference from Exhibit 10(i)(A)(2) to the registrant’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2002, filed on August 7, 2002 |
* |
|
|
|
|
|
10.14 |
|
- |
Reimbursement Agreement, dated as of July 3, 2002, by and between Alexander’s, Inc., 731 Commercial LLC, 731 Residential LLC and Vornado Realty, L.P. Incorporated herein by reference from Exhibit 10(i)(C)(8) to the registrant’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2002, filed on August 7, 2002 |
* |
|
|
|
|
|
10.15 |
|
- |
First Amendment of Lease, dated as of April 19, 2002, between Seven Thirty One Limited Partnership, landlord and Bloomberg L.P., tenant. Incorporated herein by reference from Exhibit 10(v)(B)(2) to the registrant’s Quarterly Report on Form 10-Q for the fiscal quarter ended June 30, 2002, filed on August 7, 2002 |
* |
|
|
|
|
|
10.16 |
|
- |
Loan and Security Agreement, dated as of February 13, 2004, between 731 Office One LLC, as Borrower and German American Capital Corporation, as Lender. Incorporated herein by reference from Exhibit 10.20 to the registrant’s Annual Report on Form 10-K for the year ended December 31, 2003, filed on March 2, 2004 |
* |
|
|
|
|
|
10.17 |
|
- |
Amended, Restated and Consolidated Mortgage, Security Agreement, Financing Statement and Assignment of Leases, Rent and Security Deposits by and between 731 Office One LLC as Borrower and German American Capital Corporation as Lender, dated as of February 13, 2004. Incorporated herein by reference from Exhibit 10.21 to the registrant’s Annual Report on Form 10-K for the year ended December 31, 2003, filed on March 2, 2004 |
* |
|
|
|
|
|
10.18 |
|
- |
Amended, Restated and Consolidated Note, dated as of February 13, 2004, by 731 Office One LLC in favor of German American Capital Corporation. Incorporated herein by reference from Exhibit 10.22 to the registrant’s Annual Report on Form 10-K for the year ended December 31, 2003, filed on March 2, 2004 |
* |
|
|
|
|
|
|
|
|
___________________ |
|
|
* |
|
Incorporated by reference. |
|
26
|
|
|
|
|
10.19 |
|
- |
Assignment of Leases, Rents and Security Deposits from 731 Office One LLC to German American Capital Corporation, dated as of February 13, 2004. Incorporated herein by reference from Exhibit 10.23 to the registrant’s Annual Report on Form 10-K for the year ended December 31, 2003, filed on March 2, 2004 |
* |
|
|
|
|
|
10.20 |
|
- |
Account and Control Agreement, dated as of February 13, 2004, by and among German American Capital Corporation as Lender, and 731 Office One LLC as Borrower, and JP Morgan Chase as Cash Management Bank. Incorporated herein by reference from Exhibit 10.24 to the registrant’s Annual Report on Form 10-K for the year ended December 31, 2003, filed on March 2, 2004 |
* |
|
|
|
|
|
10.21 |
|
- |
Manager’s Consent and Subordination of Management Agreement dated February 13, 2004 by 731 Office One LLC and Alexander’s Management LLC and German American Capital Corporation. Incorporated herein by reference from Exhibit 10.25 to the registrant’s Annual Report on Form 10-K for the year ended December 31, 2003, filed on March 2, 2004 |
* |
10.22 |
|
- |
Note Exchange Agreement dated as of February 13, 2004 by and between 731 Office One LLC and German American Capital Corporation. Incorporated herein by reference from Exhibit 10.26 to the registrant’s Annual Report on Form 10-K for the year ended December 31, 2003, filed on March 2, 2004 |
* |
|
|
|
|
|
10.23 |
|
- |
Promissory Note A-1 dated as of February 13, 2004 by 731 Office One LLC in favor of German American Capital Corporation. Incorporated herein by reference from Exhibit 10.27 to the registrant’s Annual Report on Form 10-K for the year ended December 31, 2003, filed on March 2, 2004 |
* |
|
|
|
|
|
10.24 |
|
- |
Promissory Note A-2 dated as of February 13, 2004 by 731 Office One LLC in favor of German American Capital Corporation. Incorporated herein by reference from Exhibit 10.28 to the registrant’s Annual Report on Form 10-K for the year ended December 31, 2003, filed on March 2, 2004 |
* |
|
|
|
|
|
10.25 |
|
- |
Promissory Note A-3 dated as of February 13, 2004 by 731 Office One LLC in favor of German American Capital Corporation. Incorporated herein by reference from Exhibit 10.29 to the registrant’s Annual Report on Form 10-K for the year ended December 31, 2003, filed on March 2, 2004 |
* |
|
|
|
|
|
10.26 |
|
- |
Promissory Note A-4 dated as of February 13, 2004, by 731 Office One LLC in favor of German American Capital Corporation. Incorporated herein by reference from Exhibit 10.30 to the registrant’s Annual Report on Form 10-K for the year ended December 31, 2003, filed on March 2, 2004 |
* |
|
|
|
|
|
10.27 |
|
- |
Promissory Note A-X dated as of February 13, 2004, by 731 Office One LLC in favor of German American Capital Corporation. Incorporated herein by reference from Exhibit 10.31 to the registrant’s Annual Report on Form 10-K for the year ended December 31, 2003, filed on March 2, 2004 |
* |
|
|
|
|
|
10.28 |
|
- |
Promissory Note B dated as of February 13, 2004, by 731 Office One LLC in favor of German American Capital Corporation. Incorporated herein by reference from Exhibit 10.32 to the registrant’s Annual Report on Form 10-K for the year ended December 31, 2003, filed on March 2, 2004 |
* |
|
|
|
___________________ |
|
|
* |
|
Incorporated by reference. |
|
27
|
|
|
|
|
10.29 |
|
- |
Guaranty of Recourse Obligations dated as of February 13, 2004, by Alexander’s, Inc. to and for the benefit of German American Capital Corporation. Incorporated herein by reference from Exhibit 10.33 to the registrant’s Annual Report on Form 10-K for the year ended December 31, 2003, filed on March 2, 2004 |
* |
10.30 |
|
- |
Environmental Indemnity dated as of February 13, 2004, by Alexander’s, Inc. and 731 Office One LLC for the benefit of German American Capital Corporation. Incorporated herein by reference from Exhibit 10.34 to the registrant’s Annual Report on Form 10-K for the year ended December 31, 2003, filed on March 2, 2004 |
* |
|
|
|
|
|
10.31 |
|
- |
Loan Agreement dated as of July 6, 2005, between 731 Retail One LLC, as Borrower and Archon Financial, as Lender. Incorporated herein by reference from Exhibit 10.1 to the registrant’s Current Report on Form 8-K, filed on July 12, 2005 |
* |
|
|
|
|
|
10.32 |
** |
- |
Form of Stock Option Agreement between the Company and certain employees. Incorporated herein by reference from Exhibit 10.61 to the registrant’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2005, filed on October 27, 2005 |
* |
|
|
|
|
|
10.33 |
** |
- |
Form of Restricted Stock Option Agreement between the Company and certain employees. Incorporated herein by reference from Exhibit 10.62 to the registrant’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2005, filed on October 27, 2005 |
* |
|
|
|
|
|
10.34 |
** |
- |
Registrant’s 2006 Omnibus Stock Plan dated April 4, 2006. Incorporated herein by reference from Annex B to Schedule 14A, filed by the registrant on April 28, 2006 |
* |
|
|
|
|
|
10.35 |
|
- |
Second Amendment to Real Estate Retention Agreement, dated as of January 1, 2007, by and between Alexander’s, Inc. and Vornado Realty L.P. Incorporated herein by reference from Exhibit 10.64 to the registrant’s Annual Report on Form 10-K for the year ended December 31, 2006, filed on February 26, 2007 |
* |
|
|
|
|
|
10.36 |
|
- |
Amendment to 59th Street Real Estate Retention agreement, dated as of January 1, 2007, by and among Vornado Realty L.P., 731 Retail One LLC, 731 Restaurant LLC, 731 Office One LLC and 731 Office Two LLC. Incorporated herein by reference from Exhibit 10.65 to the registrant’s Annual Report on Form 10-K for the year ended December 31, 2006, filed on February 26, 2007 |
* |
|
|
|
|
|
10.37 |
|
- |
Building Loan Agreement, dated as of December 21, 2007, among Alexander’s of Rego Park II, Inc., as Borrower, PB Capital Corporation, as Lender, Norddeutsche Landesbank Girozentrale, New York Branch, as Lender, Wells Fargo Bank, National Association, as Lender, Landesbank Baden-Wurttemberg, New York Branch, as Lender, Bank of Ireland, Connecticut Branch, as Lender, PB Capital Corporation, as Administrative Agent, PB Capital Corporation and Norddeutsche Landesbank Girozentrale, New York Branch, as Co-Arrangers. Incorporated herein by reference from Exhibit 10.1 to the registrant’s Current Report on Form 8-K, filed on December 28, 2007 |
* |
|
|
|
|
|
10.38 |
|
- |
Project Loan Agreement, dated as of December 21, 2007, among Alexander’s of Rego Park II, Inc., as Borrower, PB Capital Corporation, as Lender, Norddeutsche Landesbank Girozentrale, New York Branch, as Lender, Wells Fargo Bank, National Association, as Lender, Landesbank Baden-Wurttemberg, New York Branch, as Lender, Bank of Ireland, Connecticut Branch, as Lender, PB Capital Corporation, as Administrative Agent, PB Capital Corporation and Norddeutsche Landesbank Girozentrale, New York Branch, as Co-Arrangers. Incorporated herein by reference from Exhibit 10.2 to the registrant’s Current Report on Form 8-K, filed on December 28, 2007 |
* |
|
|
|
___________________ |
|
|
* |
|
Incorporated by reference. |
|
|
** |
|
Management contract or compensatory agreement. |
|
28
10.39 |
|
- |
Series I Building Loan Mortgage, Assignment of Leases and Rents and Security Agreement, dated as of December 21, 2007, from Alexander’s of Rego Park II, Inc., as Mortgagor, to PB Capital Corporation, as Administrative Agent for the Lenders. Incorporated herein by reference from Exhibit 10.3 to the registrant’s Current Report on Form 8-K, filed on December 28, 2007 |
* |
|
|
|
|
|
10.40 |
|
- |
Series II Building Loan Mortgage, Assignment of Leases and Rents and Security Agreement, dated as of December 21, 2007, from Alexander’s of Rego Park II, Inc., as Mortgagor, to PB Capital Corporation, as Administrative Agent for the Lenders. Incorporated herein by reference from Exhibit 10.4 to the registrant’s Current Report on Form 8-K, filed on December 28, 2007 |
* |
|
|
|
|
|
10.41 |
|
- |
Series I Project Loan Mortgage, Assignment of Leases and Rents and Security Agreement, dated as of December 21, 2007, from Alexander’s of Rego Park II, Inc., as Mortgagor, to PB Capital Corporation, as Administrative Agent for the Lenders. Incorporated herein by reference from Exhibit 10.5 to the registrants Current Report on Form 8-K, filed on December 31, 2007 |
* |
10.42 |
|
- |
Series II Project Loan Mortgage, Assignment of Leases and Rents and Security Agreement, dated as of December 21, 2007, from Alexander’s of Rego Park II, Inc., as Mortgagor, to PB Capital Corporation, as Administrative Agent for the Lenders. Incorporated herein by reference from Exhibit 10.6 to the registrant’s Current Report on Form 8-K, filed on December 28, 2007 |
* |
|
|
|
|
|
10.43 |
|
- |
Guaranty of Completion, dated as of December 21, 2007, executed by Alexander’s, Inc. for the benefit of PB Capital Corporation, as Administrative Agent for itself and the other Lenders Incorporated herein by reference from Exhibit 10.7 to the registrant’s Current Report on Form 8-K, filed on December 28, 2007 |
* |
10.44 |
|
- |
Guaranty of Payment, dated as of December 21, 2007, executed by Alexander’s, Inc. for the benefit of PB Capital Corporation, as Administrative Agent for itself and the other Lenders. Incorporated herein by reference from Exhibit 10.8 to the registrant’s Current Report on Form 8-K, filed on December 28, 2007 |
* |
10.45 |
|
- |
First Amendment to Amended and Restated Management and Development Agreement, dated as of July 6, 2005, by and between Alexander’s, Inc., the subsidiaries party thereto and Vornado Management Corp. Incorporated herein by reference from Exhibit 10.52 to the registrant’s Annual Report on Form 10-K, for the year ended December 31, 2007, filed on February 25, 2008 |
* |
10.46 |
|
- |
Second Amendment to Amended and Restated Management and Development Agreement, dated as of December 20, 2007, by and between Alexander’s, Inc., the subsidiaries party thereto and Vornado Management Corp. Incorporated herein by reference from Exhibit 10.53 to the registrant’s Annual Report on Form 10-K, for the year ended December 31, 2007, filed on February 25, 2008 |
* |
10.47 |
|
- |
Rego II Management and Development Agreement, dated as of December 20, 2007, by and between Alexander’s of Rego Park II, Inc., and Vornado Realty L.P. Incorporated herein by reference from Exhibit 10.54 to the registrant’s Annual Report on Form 10-K, for the year ended December 31, 2007, filed on February 25, 2008 |
* |
|
|
|
___________________ |
|
|
* |
|
Incorporated by reference. |
|
|
|
|
|
|
29
10.48 |
|
- |
Third Amendment to Real Estate Retention Agreement, dated as of December 20, 2007, by and between Alexander’s, Inc., and Vornado Realty L.P. Incorporated herein by reference from Exhibit 10.55 to the registrant’s Annual Report on Form 10-K, for the year ended December 31, 2007, filed on February 25, 2008 |
* |
|
|
|
|
|
10.49 |
|
- |
Rego II Real Estate Retention Agreement, dated as of December 20, 2007, by and between Alexander’s, Inc., and Vornado Realty L.P. Incorporated herein by reference from Exhibit 10.56 to the registrant’s Annual Report on Form 10-K, for the year ended December 31, 2007 filed on February 25, 2008 |
* |
|
|
|
|
|
10.50 |
|
- |
Loan Agreement dated as of March 10, 2009 between Alexander’s Rego Park Shopping Center Inc., as Borrower and U.S. Bank National Association, as Lender. Incorporated herein by reference from Exhibit 10.55 to the registrant’s Quarterly Report on for 10-Q for the quarter ended March 31, 2009, filed on May 4, 2009 |
* |
|
|
|
|
|
10.51 |
|
- |
Amended and Restated Mortgage, Security Agreement, Fixture Filing and Assignment of Leases and Rentals by and between Alexander’s Rego Shopping Center, Inc. as Borrower and U.S. Bank National Association as Lender, dated as of March 10, 2009. Incorporated herein by reference from Exhibit 10.56 to the registrant’s Quarterly Report on for 10-Q for the quarter ended March 31, 2009, filed on May 4, 2009 |
* |
|
|
|
|
|
10.52 |
|
- |
Amended and Restated Promissory Note dated as of March 10, 2009, by Alexander’s Rego Shopping Center Inc., in favor of U.S. Bank National Association. Incorporated herein by reference from Exhibit 10.57 to the registrant’s Quarterly Report on for 10-Q for the quarter ended March 31, 2009, filed on May 4, 2009 |
* |
|
|
|
|
|
10.53 |
|
- |
Cash Pledge Agreement dated as of March 10, 2009, executed by Alexander’s Rego Shopping Center Inc. to and for the benefit of U.S. Bank National Association. Incorporated herein by reference from Exhibit 10.58 to the registrant’s Quarterly Report on for 10-Q for the quarter ended March 31, 2009, filed on May 4, 2009 |
* |
|
|
|
|
|
10.54 |
|
- |
Lease dated as of February 7, 2005, by and between 731 Office One LLC, as Landlord, and Citibank, N.A., as Tenant. Incorporated herein by reference from Exhibit 10.59 to the registrant’s Quarterly Report on for 10-Q for the quarter ended March 31, 2009, filed on May 4, 2009 |
* |
10.55 |
|
- |
Assignment and Assumption and Consent Agreement, dated as of March 25, 2009, by and between 731 Office One LLC, as Landlord, Citicorp North America, Inc., as Assignor, and Bloomberg L.P., as Assignee. Incorporated herein by reference from Exhibit 10.60 to the registrant’s Quarterly Report on for 10-Q for the quarter ended March 31, 2009, filed on May 4, 2009 |
* |
10.56 |
** |
- |
Alexander’s, Inc. 2006 Ominibus Stock Plan Deferred Stock Unit Agreement. Incorporated herein by reference to Exhibit 99.1 to the registrant’s Current Report on Form 8-K, filed on June 2, 2011 |
* |
10.57 |
|
- |
Loan Agreement dated June 10, 2011, among Alexander’s of Kings, LLC, Kings Parking, LLC, and Alexander’s Kings Plaza, LLC, individually or collectively, as borrower, and the Financial Institutions and their Assignees under Section 11.15, as lenders, and Wells Fargo Bank, N.A., as administrative agent |
|
10.58 |
|
- |
Consolidated Amended and Restated Promissory Note dated June 10, 2011, among Alexander’s of Kings, LLC, Kings Parking, LLC, and Alexander’s Kings Plaza, LLC, individually or collectively, as borrower, and Wells Fargo Bank, N.A., Royal Bank of Canada, and Credit Agricole Corporate and Investment Bank, individually or collectively, as Lenders |
|
|
|
|
___________________ |
|
|
* |
|
Incorporated by reference. |
|
|
** |
|
Management contract or compensatory agreement. |
|
30
10.59 |
|
- |
Consolidated Amended and Restated Fee and Leasehold Mortgage, Assignment of Leases and Rents and Security Agreement dated June 10, 2011, among Alexander’s of Kings, LLC, Kings Parking, LLC, and Alexander’s Kings Plaza, LLC, individually or collectively, as mortgagor and Wells Fargo Bank, N.A., as mortgagee |
|
|
|
|
|
|
10.60 |
|
- |
Guaranty of Recourse Obligations, dated June 10, 2011, by Alexander’s, Inc., as Guarantor, to and for the benefit of Wells Fargo Bank, N.A., as Administrative Agent |
|
|
|
|
|
|
10.61 |
|
- |
Environmental Indemnity Agreement dated June 10, 2011, by Alexander’s of Kings, LLC, Kings Parking, LLC, and Alexander’s Kings Plaza, LLC, and Alexander’s, Inc., individually or collectively, as Indemnitor, to Wells Fargo Bank, N.A., as Administrative Agent |
|
|
|
|
|
|
15.1 |
|
- |
Letter regarding unaudited interim financial information |
|
|
|
|
|
|
31.1 |
|
- |
Rule 13a-14 (a) Certification of the Chief Executive Officer |
|
|
|
|
|
|
31.2 |
|
- |
Rule 13a-14 (a) Certification of the Chief Financial Officer |
|
|
|
|
|
|
32.1 |
|
- |
Section 1350 Certification of the Chief Executive Officer |
|
|
|
|
|
|
32.2 |
|
- |
Section 1350 Certification of the Chief Financial Officer |
|
|
|
|
|
|
101.INS |
|
- |
XBRL Instance Document |
|
|
|
|
|
|
101.SCH |
|
- |
XBRL Taxonomy Extension Schema |
|
|
|
|
|
|
101.CAL |
|
- |
XBRL Taxonomy Extension Calculation Linkbase |
|
|
|
|
|
|
101.DEF |
|
- |
XBRL Taxonomy Extension Definition Linkbase |
|
|
|
|
|
|
101.LAB |
|
- |
XBRL Taxonomy Extension Label Linkbase |
|
|
|
|
|
|
101.PRE |
|
- |
XBRL Taxonomy Extension Presentation Linkbase |
|
|
|
|
|
|
|
|
|
|
|
31
EXHIBIT 10.57
Wells Fargo Loan No.: 33-0911464
LOAN AGREEMENT
Dated as of June 10, 2011
among
ALEXANDER’S OF KINGS, LLC, KINGS PARKING, LLC, AND ALEXANDER’S KINGS PLAZA, LLC,
individually or collectively, as the context may require, as Borrower,
THE FINANCIAL INSTITUTIONS PARTY HERETO AND THEIR ASSIGNEES UNDER SECTION 11.15,
as Lenders,
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Administrative Agent,
and
WELLS FARGO SECURITIES, LLC, RBC CAPITAL MARKETS(1) AND CRÉDIT AGRICOLE CORPORATE & INVESTMENT BANK
individually or collectively, as the context may require,
as Co-Bookrunners and Co-Lead Arrangers
(1) RBC Capital Markets is a marketing name for the investment banking activities of Royal Bank of Canada and its affilites.
TABLE OF CONTENTS
|
|
Page |
|
ARTICLE I - DEFINITIONS; PRINCIPLES OF CONSTRUCTION |
|
|
|
|
Section 1.1 |
Definitions |
1 |
Section 1.2 |
Principles of Construction |
24 |
|
|
|
|
ARTICLE II – GENERAL TERMS |
|
|
|
|
Section 2.1 |
Loan Commitment; Disbursement to Borrower |
24 |
Section 2.2 |
The Loan |
24 |
Section 2.3 |
Disbursement to Borrower |
24 |
Section 2.4 |
The Note and the other Loan Documents |
24 |
Section 2.5 |
Interest Rate |
24 |
Section 2.6 |
Loan Payments |
34 |
Section 2.7 |
Prepayments |
35 |
Section 2.8 |
Interest Rate Protection Agreement |
37 |
Section 2.9 |
Release on Payment in Full |
39 |
Section 2.10 |
Intentionally omitted |
39 |
Section 2.11 |
Pro Rata Treatment |
39 |
Section 2.12 |
Sharing of Payments, Etc |
40 |
Section 2.13 |
Several Obligations |
40 |
|
|
|
|
ARTICLE III – REPRESENTATIONS AND WARRANTIES |
|
|
|
|
Section 3.1 |
Legal Status and Authority |
40 |
Each Borrower (a) is duly organized, |
40 |
|
Section 3.2 |
Validity of Documents |
40 |
Section 3.3 |
Litigation |
41 |
Section 3.4 |
Agreements |
41 |
Section 3.5 |
Financial Condition |
42 |
Section 3.6 |
Disclosure |
42 |
Section 3.7 |
No Plan Assets |
42 |
Section 3.8 |
Not a Foreign Person |
42 |
Section 3.9 |
Business Purposes |
42 |
Section 3.10 |
Borrower Information |
42 |
Section 3.11 |
Status of Property |
43 |
Section 3.12 |
Financial Information |
44 |
Section 3.13 |
Condemnation |
44 |
Section 3.14 |
Separate Lots |
44 |
Section 3.15 |
Insurance |
44 |
Section 3.16 |
Use of Property |
45 |
Section 3.17 |
Leases and Rent Roll |
45 |
1
Section 3.18 |
Filing and Recording Taxes |
45 |
Section 3.19 |
Management Agreement; Parking Management Agreement |
46 |
Section 3.20 |
Illegal Activity/Forfeiture |
46 |
Section 3.21 |
Taxes |
46 |
Section 3.22 |
Permitted Encumbrances |
46 |
Section 3.23 |
Intentionally Omitted |
46 |
Section 3.24 |
Intentionally Omitted |
46 |
Section 3.25 |
Federal Reserve Regulations |
46 |
Section 3.26 |
Investment Company Act |
47 |
Section 3.27 |
Fraudulent Conveyance |
47 |
Section 3.28 |
Embargoed Person |
47 |
Section 3.29 |
Patriot Act |
47 |
Section 3.30 |
Organizational Chart |
48 |
Section 3.31 |
Bank Holding Company |
48 |
Section 3.32 |
Intentionally Omitted |
48 |
Section 3.33 |
Property Document Representations |
48 |
Section 3.34 |
Intentionally Omitted |
48 |
Section 3.35 |
Ground Lease |
48 |
Section 3.36 |
Perfection of Accounts |
50 |
Section 3.37 |
Guarantor Representations |
50 |
|
|
|
|
ARTICLE IV – BORROWER COVENANTS |
|
|
|
|
Section 4.1 |
Existence |
50 |
Section 4.2 |
Applicable Law |
51 |
Section 4.3 |
Maintenance and Use of Property |
52 |
Section 4.4 |
Waste |
52 |
Section 4.5 |
Property Taxes and Other Charges; Tax Filings |
52 |
Section 4.6 |
Litigation |
53 |
Section 4.7 |
Access to Property |
53 |
Section 4.8 |
Notice of Default |
53 |
Section 4.9 |
Cooperate in Legal Proceedings |
53 |
Section 4.10 |
Performance by Borrower |
53 |
Section 4.11 |
Awards |
54 |
Section 4.12 |
Books and Records |
54 |
Section 4.13 |
Estoppel Certificates |
55 |
Section 4.14 |
Leases and Rents |
56 |
Section 4.15 |
Management Agreement; Parking Management Agreement |
59 |
Section 4.16 |
Payment for Labor and Materials |
59 |
Section 4.17 |
Performance of Other Agreements; Environmental Reporting Covenant |
60 |
Section 4.18 |
Debt Cancellation |
60 |
Section 4.19 |
ERISA |
60 |
Section 4.20 |
No Joint Assessment |
61 |
Section 4.21 |
Alterations |
61 |
Section 4.22 |
Property Document Covenants |
62 |
Section 4.23 |
Ground Lease |
62 |
2
Section 4.24 |
Administrative Agent Fee |
65 |
Section 4.25 |
Energy |
65 |
|
|
|
|
ARTICLE V – ENTITY COVENANTS |
|
|
|
|
Section 5.1 |
Single Purpose Entity/Separateness |
65 |
Section 5.2 |
Independent Director |
71 |
Section 5.3 |
Compliance Certificate |
72 |
Section 5.4 |
Change of Name, Identity or Structure |
72 |
Section 5.5 |
Business and Operations |
73 |
|
|
|
|
ARTICLE VI – NO SALE OR ENCUMBRANCE |
|
|
|
|
Section 6.1 |
Transfer Definitions |
73 |
Section 6.2 |
No Sale/Encumbrance |
73 |
Section 6.3 |
Permitted Equity Transfers |
74 |
Section 6.4 |
Assignment by Borrower |
75 |
Section 6.5 |
Immaterial Transfers and Easements, Etc |
75 |
|
|
|
ARTICLE VII – INSURANCE; CASUALTY; CONDEMNATION; RESTORATION |
||
|
|
|
Section 7.1 |
Insurance |
76 |
Section 7.2 |
Casualty |
82 |
Section 7.3 |
Condemnation |
82 |
Section 7.4 |
Restoration |
83 |
|
|
|
|
ARTICLE VIII – RESERVE FUNDS |
|
|
|
|
Section 8.1 |
Immediate Repairs |
87 |
Section 8.2 |
Replacement Reserve Funds |
87 |
Section 8.3 |
Leasing Reserve Funds |
89 |
Section 8.4 |
Intentionally Omitted |
90 |
Section 8.5 |
Intentionally Omitted |
90 |
Section 8.6 |
Tax and Insurance Funds |
90 |
Section 8.7 |
The Accounts Generally |
91 |
|
|
|
|
ARTICLE 1X – CASH MANAGEMENT |
|
|
|
|
Section 9.1 |
Establishment of Accounts |
92 |
Section 9.2 |
Deposits into Restricted Account; Maintenance of Restricted Account |
93 |
|
|
|
|
ARTICLE X – EVENTS OF DEFAULT, REMEDIES |
|
|
|
|
Section 10.1 |
Event of Default |
94 |
Section 10.2 |
Remedies |
98 |
3
ARTICLE XI – ADMINISTRATIVE AGENT, RELATIONS AMONG LENDERS |
||
|
|
|
Section 11.1 |
Appointment and Authorization |
101 |
Section 11.2 |
Wells Fargo as Lender |
102 |
Section 11.3 |
Collateral Matters; Protective Advances |
103 |
Section 11.4 |
Post Foreclosure Plans |
104 |
Section 11.5 |
Approvals of Lenders |
104 |
Section 11.6 |
Notice of Defaults |
105 |
Section 11.7 |
Administrative Agent’s Reliance |
105 |
Section 11.8 |
Indemnification of Administrative Agent |
106 |
Section 11.9 |
Lender Credit Decision, Etc |
107 |
Section 11.10 |
Successor Administrative Agent |
107 |
Section 11.11 |
Agent Minimum hold |
108 |
Section 11.12 |
Amendment of Administrative Agent’s Duties, Etc |
108 |
Section 11.13 |
Defaulting Lenders |
109 |
Section 11.14 |
Participations |
109 |
Section 11.15 |
Assignments |
110 |
Section 11.16 |
Federal Reserve Bank Assignments |
111 |
Section 11.17 |
Information to Assignee, Etc |
111 |
Section 11.18 |
Amendments and Waivers |
111 |
Section 11.19 |
Arrangers and Bookrunners |
113 |
Section 11.20 |
Secondary Market Cooperation |
114 |
|
|
|
|
ARTICLE XII - INDEMNIFICATIONS |
|
|
|
|
Section 12.1 |
General Indemnification |
116 |
Section 12.2 |
Mortgage and Intangible Tax and Transfer Tax Indemnification |
117 |
Section 12.3 |
ERISA Indemnification |
117 |
Section 12.4 |
Duty to Defend, Legal Fees and Other Fees and Expenses |
117 |
Section 12.5 |
Survival |
118 |
Section 12.6 |
Environmental Indemnity |
118 |
|
|
|
|
ARTICLE XIII - EXCULPATION |
|
|
|
|
Section 13.1 |
Exculpation |
118 |
Section 13.2 |
Survival |
121 |
|
|
|
ARTICLE XIV – NOTICES; FUNDS TRANSFER DISBURSEMENT; ELECTRONIC DELIVERY OF CERTAIN INFORMATION |
||
|
|
|
Section 14.1 |
Notices |
121 |
Section 14.2 |
Funds Transfer Disbursements |
123 |
Section 14.3 |
Electronic Delivery of Certain Information |
124 |
Section 14.4 |
Possession of Documents |
124 |
|
|
|
4
|
ARTICLE XV – FURTHER ASSURANCES |
|
|
|
|
Section 15.1 |
Replacement Documents |
124 |
Section 15.2 |
Recording of Security Instrument, Etc |
124 |
Section 15.3 |
Further Acts, Etc |
125 |
Section 15.4 |
Changes in Tax, Debt, Credit and Documentary Stamp Laws |
125 |
Section 15.5 |
Conversion to Registered Form |
126 |
Section 15.6 |
Register |
126 |
|
|
|
|
ARTICLE XVI - WAIVERS |
|
|
|
|
Section 16.1 |
Remedies Cumulative; Waivers |
127 |
Section 16.2 |
Modification, Waiver in Writing |
127 |
Section 16.3 |
Delay Not a Waiver |
127 |
Section 16.4 |
Waiver of Trial by Jury |
128 |
Section 16.5 |
Waiver of Notice |
128 |
Section 16.6 |
Remedies of Borrower |
128 |
Section 16.7 |
Marshalling and Other Matters |
128 |
Section 16.8 |
Waiver of Statute of Limitations |
128 |
Section 16.9 |
Waiver of Counterclaim |
129 |
Section 16.10 |
Sole Discretion of Administrative Agent and Lenders |
129 |
|
|
|
|
ARTICLE XVII - MISCELLANEOUS |
|
|
|
|
Section 17.1 |
Survival |
129 |
Section 17.2 |
Governing Law |
129 |
Section 17.3 |
Headings |
129 |
Section 17.4 |
Severability |
129 |
Section 17.5 |
Preferences |
129 |
Section 17.6 |
Setoff |
130 |
Section 17.7 |
Expenses |
130 |
Section 17.8 |
Cost of Enforcement |
131 |
Section 17.9 |
Schedules and Exhibits Incorporated |
131 |
Section 17.10 |
Offsets, Counterclaims and Defenses |
132 |
Section 17.11 |
No Joint venture or Partnership; No Third Party
Beneficiaries; Non |
132 |
Section 17.12 |
Publicity; Confidentiality |
133 |
Section 17.13 |
Conflict; Construction of Documents; Reliance |
134 |
Section 17.14 |
Entire Agreement |
134 |
Section 17.15 |
Liability |
135 |
Section 17.16 |
Duplicate Originals; Counterparts |
135 |
Section 17.17 |
Delay Outside Lender’s Control |
135 |
Section 17.18 |
Intentionally Omitted |
135 |
Section 17.19 |
Intentionally Omitted |
135 |
Section 17.20 |
Administrative Agent’s and Lenders’ Administrative Agents |
135 |
Section 17.21 |
Contribution |
135 |
5
ARTICLE
XVII -
PAYMENT TERMS
ARTICLE XIX -
DEFAULT AND ACCELERATION
ARTICLE XX -
LOAN DOCUMENTS
ARTICLE XXI -
SAVINGS CLAUSE
ARTICLE XXII -
NO ORAL CHANGE
ARTICLE XXIII -
WAIVERS
ARTICLE XXIV -
TRANSFER
ARTICLE XXV -
EXCULPATION
ARTICLE XXVI -
GOVERNING LAW
ARTICLE XXVII -
NOTICES
ARTICLE XXVIII -
JOINT AND SEVERAL LIABILITY
6
SCHEDULES AND EXHIBITS |
|
|
|
|
|
Schedule I |
Immediate Repairs |
|
Schedule II |
Replacements |
|
Schedule III |
Organizational Chart |
|
Schedule IV |
Description of REA |
|
Schedule V |
Exceptions to Representations and Warranties |
|
Schedule VI |
Department Violations |
|
|
|
|
Exhibit A |
Form of Tenant Direction Notice |
|
Exhibit B |
Assignment and Assumption Agreement |
|
Exhibit C |
Individual Loan Commitments/Pro Rata Share |
|
Exhibit D |
Promissory Note |
|
Exhibit E |
Transfer Authorizer Designation Form |
|
Exhibit F |
Form of Collateral Assignment of Interest Rate Protection Agreement |
|
Exhibit G |
Form of Notice of Borrowing |
|
Exhibit H |
Form of Notice of Continuation |
|
Exhibit I |
Form of Subordination Non-Disturbance and Attornment Agreement |
|
Exhibit J |
Form of Section 2.5(c)(v) Certificate |
|
|
|
|
|
|
|
|
|
|
7
LOAN AGREEMENT
THIS LOAN AGREEMENT, dated as of June 10, 2011 (as amended, restated, replaced, supplemented or otherwise modified from time to time, this “Agreement”), by and among ALEXANDER’S OF KINGS, LLC, KINGS PARKING, LLC AND ALEXANDER’S KINGS PLAZA, LLC, each having an address at c/o Alexander’s Inc., 210 Route 4 East, Paramus, New Jersey 07652 (individually and/or collectively (as the context may require) referred to herein as “Borrower”), WELLS FARGO BANK, NATIONAL ASSOCIATION, as administrative agent, for the benefit of Lenders (in such capacity, together with its successors and/or assigns in such capacity, “Administrative Agent”), each of the financial institutions initially a signatory hereto and each other financial institution who may become a Lender pursuant to Section 11.15 hereof (together with their successors and permitted assigns, each a “Lender” and, collectively, “Lenders”), WELLS FARGO BANK, NATIONAL ASSOCIATION, as documentation agent (“Documentation Agent”), and WELLS FARGO BANK, NATIONAL ASSOCIATION, RBC CAPITAL MARKETS, AND CRÉDIT AGRICOLE CORPORATE & INVESTMENT BANK (individually or collectively, as the context may require, as “Co-Bookrunners” and “Co-Lead Arrangers”).
RECITALS:
Borrower desires to obtain the Loan (defined below) from Lenders and Lenders are willing to make the Loan to Borrower, subject to and in accordance with the terms of this Agreement and the other Loan Documents (defined below).
In consideration of the making of the Loan by Lenders and the covenants, agreements, representations and warranties set forth in this Agreement, the parties hereto hereby covenant, agree, represent and warrant as follows:
“30/360 Basis” shall mean on the basis of a 360-day year consisting of 12 months of 30 days each.
“Acceptable Counterparty” shall mean (i) any one of the Co-Lead Arrangers or (ii) any counterparty to the Interest Rate Protection Agreement that has and shall maintain, until the expiration of the applicable Interest Rate Protection Agreement a long-term unsecured debt rating of at least “A” by S&P.
“Acceptable Delaware LLC” shall mean a limited liability company formed under Delaware law which has at least two springing members, which, upon the dissolution of all of the members or the withdrawal or the disassociation of all of the members from such limited liability company, shall immediately become the members of such limited liability company.
“Account Collateral” shall mean (i) the Accounts, and all cash, checks, drafts, certificates and instruments, if any, from time to time deposited or held in the Accounts from time to time; (ii) all interest, dividends, cash, instruments and other property from time to time received, receivable or otherwise payable in respect of, or in exchange for, any or all of the foregoing; and (iii) to the extent not covered by clauses (i) - (ii) above, all “proceeds” (as defined under the UCC as in effect in the state in which the Accounts are located) of any or all of the foregoing.
“Accounts” shall mean the Restricted Account, the Tax Account, the Insurance Account, the Replacement Reserve Account, the Leasing Reserve Account and any other similar account established by this Agreement or the other Loan Documents.
“Act” shall have the meaning set forth in Section 5.1(c) hereof.
“Acts of Terrorism” shall have the meaning set forth in Section 7.1(k) hereof.
“Actual/360 Basis” shall mean on the basis of a 360-day year and charged on the basis of actual days elapsed for any whole or partial period in which interest is being calculated.
“Actual Operating Expenses” shall mean all expenses, computed in accordance with GAAP, of whatever kind and from whatever source, relating to the ownership, operation, repair, maintenance and management of the Property that are incurred on a regular monthly or other periodic basis, including, without limitation (and without duplication): Taxes (based on the most current bill annualized, subject to adjustment by Lender to take into account any known change in assessment that has not yet been reflected in the most current tax bill); Insurance Premiums (based on the most current premium annualized); management fees (whether or not actually paid) equal to the greater of the actual management fees paid or two percent (2%) of aggregate Rents; costs attributable to the ordinary operation, repair and maintenance of the Improvements; common area maintenance costs; advertising and marketing expenses; professional fees; license fees; general and administrative costs and expenses related to the Property; utilities; payroll, benefits and related taxes and expenses; janitorial expenses; computer processing charges; operating equipment or other lease payments permitted pursuant to this Agreement or as otherwise approved by Lender; ground lease payments; bond assessments; and other similar costs and expenses; in each instance, unless otherwise noted, only to the extent actually paid for by Borrower. Notwithstanding the foregoing, Actual Operating Expenses shall not include debt service (including principal, interest, impounds and other reserves), capital expenditures or any costs otherwise capitalized in accordance with GAAP, tenant improvement costs, leasing commissions or other expenses which are paid from escrows required by the Loan Documents; any payment or expense for which Borrower was or is to be reimbursed from proceeds of the loan or insurance or by any third party; federal, state or local income taxes; any non-cash charges such as depreciation and amortization; and any item of expense otherwise includable in Actual Operating Expenses which is paid directly by any tenant except real estate taxes paid directly to any taxing authority by any tenant.
2
“Additional Borrower Debtholder Restrictions” shall mean, collectively, (a) the Borrower or any Affiliate that holds any interest in the Loan (an “Affiliate Holder”) shall be an Eligible Assignee, (b) such Affiliate Holder’s interest shall be fully subordinate to the interest of all Lenders that are not Affiliate Holders, (c) Affiliate Holder will not have any right to enforce any rights or remedies under the Loan, and (d) Affiliate Holder shall not be permitted to attend or participate in any meetings or communications between the Administrative Agent and the Lenders and will not be entitled to receive any information with respect thereto.
“Adjusted LIBOR Rate” shall mean, with respect to the applicable Interest Accrual Period, the quotient of (i) LIBOR applicable to such Interest Accrual Period, divided by (ii) one (1) minus the Reserve Percentage, i.e.,
Adjusted LIBOR Rate = LIBOR______________
(1 - Reserve Percentage)
“Administrative Agent” shall have the meaning set forth in the introductory paragraph hereof.
“Administrative Agent Fee” shall mean an administrative fee payable by Borrower to Administrative Agent in an amount equal to $20,000 per annum payable in quarterly installments at the beginning of each calendar quarter, provided that the first installment shall be prorated and equal to $1,153.85.
“Administrative Questionnaire” means the Administrative Questionnaire completed by each Lender and delivered to Administrative Agent in a form supplied by Administrative Agent to Lenders from time to time.
“Affiliate” shall mean, as to any Person, any other Person that, directly or indirectly, is in Control of, is Controlled by or is under common Control with such Person or is a director or officer of such Person or of an Affiliate of such Person.
“Affiliated Manager” shall mean any managing agent of the Property in which Borrower, Guarantor, any SPE Component Entity (if any) or any Affiliate of such entities has, directly or indirectly, any legal, beneficial or economic interest.
“Agent Minimum Hold” shall have the meaning set forth in Section 11.11.
“ALTA” shall mean American Land Title Association or any successor thereto.
“Alteration Threshold” shall mean an amount equal to $7,500,000.
“Alterations Collateral” shall have the meaning set forth in Section 4.21.
“Annual Budget” shall have the meaning set forth in Section 4.12(a)(vi).
“Applicable Contribution” shall have the meaning set forth in Section 17.21(f) hereof.
3
“Applicable Law” shall mean all applicable federal, state, county, municipal and other governmental statutes, laws, rules, orders, regulations, ordinances, judgments, decrees and injunctions of Governmental Authorities affecting Borrower or the Property or any part thereof, or the construction, use, alteration or operation thereof, or any part thereof, whether now or hereafter enacted and in force, including, without limitation, the Americans with Disabilities Act of 1990, and all permits, licenses and authorizations and regulations relating thereto, and all covenants, agreements, restrictions and encumbrances contained in any instruments, either of record or known to Borrower, at any time in force affecting Borrower or the Property or any part thereof, including, without limitation, any which may (i) require repairs, modifications or alterations in or to the Property or any part thereof, or (ii) in any way limit the use and enjoyment thereof.
“Applicable Policies” shall have the meaning set forth in Section 7.1(k) hereof.
“Approved Bank” shall mean (a) a bank or other financial institution which has the Required Rating or (b) a bank or other financial institution otherwise acceptable to Administrative Agent.
“Approved ID Provider” shall mean each of CT Corporation, Corporation Service Company, National Registered Agents, Inc., Wilmington Trust Company, Stewart Management Company and Lord Securities Corporation; provided, that, additional national providers of Independent Directors may be deemed added to the foregoing hereunder to the extent approved in writing by Administrative Agent.
“Assignee” shall have the meaning set forth in Section 11.15 hereof.
“Assignment and Assumption” shall mean an Assignment and Assumption Agreement among a Lender, an Assignee and the Administrative Agent, substantially in the form of Exhibit B attached hereto and made a part hereof.
“Assignment of Leases” shall mean that certain first priority Assignment of Leases and Rents, dated as of the date hereof, from Borrower, as assignor, to Administrative Agent, as assignee.
“Assignment of Management Agreement” shall mean that certain Conditional Assignment of Management Agreement dated as of the date hereof among Administrative Agent, for the benefit of Lenders, Borrower and Manager, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.
“Award” shall mean any compensation paid by any Governmental Authority in connection with a Condemnation in respect of all or any part of the Property.
“Bank” shall have the meaning set forth in the Restricted Account Agreement.
“Bankruptcy Code” shall mean Title 11 of the United States Code entitled “Bankruptcy”, as amended from time to time, and any successor statute or statutes and all rules and regulations from time to time promulgated thereunder, and any comparable foreign laws relating to bankruptcy, insolvency or creditors’ rights.
4
“Base Rate” shall mean the greater of (i) the Prime Rate and (ii) the Federal Funds Rate plus one-half of one percent (.50%).
“Base Rate Loan” shall mean the Loan at such time as interest thereon accrues at a rate of interest based upon the Base Rate.
“Benefit Amount” shall have the meaning set forth in Section 17.21(d) hereof.
“Borrower” shall have the meaning set forth in the introductory paragraph hereof.
“Breakage Costs” shall have the meaning set forth in Section 2.5(c)(viii) hereof.
“Business Day” shall mean any day other than a Saturday, Sunday or any other day on which commercial banks in the State of New York are not open for business.
“Casualty” shall have the meaning set forth in Section 7.2.
“Casualty Consultant” shall have the meaning set forth in Section 7.4(b)(iii) hereof.
“Closing Date” shall mean the date of the funding of the Loan.
“Co-Bookrunners” shall have the meaning set forth in the introductory paragraph hereof.
“Co-Lead Arrangers” shall have the meaning set forth in the introductory paragraph hereof.
“Collateral Assignment of Interest Rate Protection Agreement” shall mean any Collateral Assignment of Interest Rate Protection Agreement executed by Borrower as required pursuant to Section 2.8(a) hereof in connection with the Loan for the benefit of Administrative Agent for the benefit of Lenders, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.
“Condemnation” shall mean a temporary or permanent taking by any Governmental Authority as the result, in lieu or in anticipation, of the exercise of the right of condemnation or eminent domain, of all or any part of the Property, or any interest therein or right accruing thereto, including any right of access thereto or any change of grade affecting the Property or any part thereof.
“Constituent Members” shall have the meaning set forth in Section 5.2(b).
“Continue”, “Continuation” and “Continued” each refers to the continuation of a LIBOR Loan from one Interest Accrual Period to another Interest Accrual Period pursuant to Section 2.5(f)(ii).
“Contribution” shall have the meaning set forth in Section 17.21(a) hereof.
5
“Control” shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities, by contract or otherwise (and Control shall not be deemed absent solely because a non-managing member, partner or shareholder shall have veto rights with respect to major decisions). The terms Controlled, Controlling and Common Control shall have correlative meanings.
“Counterparty” shall mean each counterparty to, or issuer of, any Interest Rate Protection Agreement other than Borrower or an Affiliate of Borrower.
“Creditors Rights Laws” shall mean any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization, conservatorship, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to its debts or debtors.
“DBRS” shall mean DBRS, Inc.
“Debt” shall mean the outstanding principal amount set forth in, and evidenced by, this Agreement and the Note together with all interest accrued and unpaid thereon and all other sums due to Administrative Agent and Lenders in respect of the Loan under the Note, this Agreement or the other Loan Documents, including, without limitation, the payment of all sums advanced and costs and expenses incurred by Administrative Agent and/or any Lender in connection with the enforcement and/or collection of the Debt or any part thereof.
“Debt Service” shall mean, with respect to any particular period of time, scheduled principal and/or interest payments under the Loan.
“Debt Yield” shall mean a fraction (i) whose numerator is the difference between (a) the Debt Yield Income and (b) the Debt Yield Expense, as such numerator is determined by Administrative Agent in accordance with GAAP (provided that Rents shall not be straight-lined) and (ii) whose denominator is the outstanding principal amount of the Debt as of the date of calculation.
“Debt Yield Expense” shall mean, as of the date of calculation, annualized Actual Operating Expenses based on a trailing 12-month basis.
“Debt Yield Income” shall mean, as of the date of calculation, the aggregate of (a) effective rent based on the most recent rent roll annualized, which shall include effective rent for occupied space (adjusted as follows: (i) Rents shall be calculated on a pro forma forward-looking and annualized basis, taking into account Rent step-ups occurring within twelve (12) months; (ii) Rents shall only be included with respect to in-place, signed Leases under which the applicable Tenant has taken possession and either (A) commenced payment of Rent or (B) has been granted up to a maximum of nine (9) months of free rent, provided, that with respect to such Leases in this subsection (B), the annualized base Rent, based on the initial base Rent payable after the rent commencement date under the applicable Lease and excluding the effect of the applicable free rent period, shall be included in Debt Yield Income; and (iii) Rents shall not be included with respect to Leases which as of the date of calculation are (A) in default for the failure to pay base Rent (beyond the expiration of any applicable notice and grace period) as of the date of determination, (B) otherwise in default beyond applicable notice and grace periods and for which a notice of event of default or effective default thereunder has been sent and not cured or withdrawn or (C) for which the renewal notices required under such Leases have not been delivered to Administrative Agent on or prior to the earlier to occur of (x) in the case of Leases in excess of 25,000 rentable square feet only, the applicable lease renewal notification date for such Tenant’s Lease or (y) thirty (30) days prior to the applicable expiration of such Leases unless and until the applicable Tenants deliver such renewal notices or actually renew such Leases), (b) Percentage Rent, (c) Expense Reimbursements, (d) Other Income and (e) revenue actually received by Alexander’s of Brooklyn II, LLC solely in its capacity as a member of Kings Plaza JV, LLC.
6
“Default” shall mean the occurrence of any event hereunder or under the Note or the other Loan Documents which, but for the giving of notice or passage of time, or both, would be an Event of Default.
“Default Rate” shall mean, with respect to each Tranche, a rate per annum equal to the lesser of (i) the Maximum Legal Rate, or (ii) three percent (3%) above the Interest Rate.
“Defaulting Lender” shall have meaning set forth in Section 11.13 hereof.
“Determination Date” shall mean, with respect to any Interest Accrual Period, the date that is two (2) London Business Days prior to the first (1st) day of such Interest Accrual Period.
“Documentation Agent” shall have the meaning set forth in the introductory paragraph hereof.
“Eligibility Requirements” means, with respect to any Affiliate Holder, that such Affiliate Holder (i) has total assets (in name or under management or advisement) in excess of $1,000,000,000 and (except with respect to a pension advisory firm, asset manager or similar fiduciary) capital/statutory surplus or shareholder’s equity of at least $400,000,000; provided, that, for purposes of determining whether an Affiliate Holder satisfies the criteria of this clause (i), assets which are carried at historical cost shall instead be valued at fair value and (ii) is regularly engaged in the business of making or owning (or, in the case of a pension advisory firm or similar fiduciary, regularly engaged in managing investments in) commercial real estate loans (including mezzanine loans to direct or indirect owners of commercial properties, which loans are secured by pledges of direct or indirect ownership interests in the owners of such commercial properties) or operating commercial properties.
“Eligible Account” shall mean a separate and identifiable account from all other funds held by the holding institution that is either (a) 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 (b) 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. §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.
7
“Eligible Assignee” means any Person that is: (a) an Existing Lender and any Affiliate of an Existing Lender provided said Existing Lender is not then a Defaulting Lender; (b) a commercial bank, trust company, savings and loan association, savings bank, insurance company, investment bank or pension fund organized under the laws of the United States of America, any state thereof or the District of Columbia, and having total assets in excess of $5,000,000,000; (c) a commercial bank organized under the laws of any other country which is a member of the Organization for Economic Co-operation and Development, or a political subdivision of any such country, and having total assets in excess of $10,000,000,000, provided that such bank is acting through a branch or agency located in the United States of America; (d) any other Person (other than a natural person) approved by (i) the Administrative Agent and (ii) unless an Event of Default exists and is continuing, the Borrower (each such approval not to be unreasonably withheld or delayed); or (e) with respect to an Affiliate Holder (and not any successor or assign thereof) only, a real estate investment trust, pension plan, pension fund or pension advisory firm, mutual fund, an investment company, money management firm or “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act of 1933, as amended, or an institutional “accredited investor” within the meaning of Regulation D under the Securities Act of 1933 or an institution substantially similar to any of the foregoing entities, each of which satisfies the Eligibility Requirements. If such entity is not currently a Lender, such entity’s (or in the case of a bank which is a subsidiary, such bank’s parent’s) senior unsecured long term indebtedness must be rated BBB or higher by S&P, Baa2 or higher by Moody’s or the equivalent or higher of either such rating by another rating agency acceptable to Administrative Agent.
“Eligible Institution” shall mean (a) a depository institution or trust company insured by the Federal Deposit Insurance Corporation, (i) the short term unsecured debt obligations or commercial paper of which are rated at least “A-1+” (or its equivalent) from two (2) of the Rating Agencies in the case of accounts in which funds are held for thirty (30) days or less and (ii) the senior unsecured debt obligations of which are rated at least “AA” (or its equivalent) from two (2) of the Rating Agencies in the case of accounts in which funds are held for more than thirty (30) days or (b) such other depository institution otherwise approved by Administrative Agent.
“Embargoed Person” shall have the meaning set forth in Section 3.28 hereof.
“Energy Services Agreement” shall mean collectively, that certain Energy Services Agreement, dated as of April 15, 2005 and amended on August 31, 2005, among Kings Plaza JV, LLC and Alexander’s of Brooklyn, Inc. as affected by that certain Amended and Restated License Agreement, dated as of April 15, 2005, among Alexander’s Kings Plaza, LLC and Alexander’s of Brooklyn, Inc. together with all other documents entered into by any Person in connection with the Energy Services Agreement.
“Environmental Indemnity” shall mean that certain Environmental Indemnity Agreement, dated as of the date hereof, executed by Borrower and Guarantor in connection with the Loan for the benefit of Administrative Agent and each Lender, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.
8
“Environmental Laws” shall have the meaning set forth in the Environmental Indemnity.
“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as the same may heretofore have been or shall be amended, restated, replaced or otherwise modified.
“Event of Default” shall have the meaning set forth in Section 10.1 hereof.
“Exculpated Parties” shall have the meaning set forth in Section 13.1 hereof.
“Excusable Delay” shall mean a delay solely due to acts of God, governmental restrictions, stays, judgments, orders, decrees, enemy actions, civil commotion, fire, casualty, strikes, work stoppages, shortages of labor or materials or other causes beyond the reasonable control of Borrower, but Borrower’s lack of funds in and of itself shall not be deemed a cause beyond the control of Borrower.
“Existing Lender” shall mean, individually and/or collectively, as the context may require, each Lender hereunder as of the date of determination.
“Expense Reimbursements” shall mean expense reimbursements as determined from the most recent operating statement, to the extent recurring, determined on a trailing 12-month basis (which shall only include actual expense reimbursements for occupied space).
“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement, and any current or future regulations or official interpretations.
“Federal Funds Rate” means, for any period, a fluctuating interest rate per annum equal for each day during such period to the weighted average of the rates on overnight Federal Funds transactions with members of the Federal Reserve System arranged by Federal Funds brokers, as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations for such day on such transactions received by Administrative Agent from three Federal Funds brokers of recognized standing selected by Administrative Agent.
“Fees” shall mean any fees payable by the Borrower to Administrative Agent and/or any Lender hereunder or under any other Loan Document.
“Fitch” shall mean Fitch, Inc.
“Flood Insurance Acts” shall have the meaning set forth in Section 7.1(a)(vii) hereof.
9
“Foreign Lender” shall mean a Lender organized under the laws of a jurisdiction outside the United States of America.
“Funding Borrower” shall have the meaning set forth in Section 17.21(c) hereof.
“GAAP” shall mean generally accepted accounting principles in the United States of America as of the date of the applicable financial report.
“Governmental Authority” shall mean any court, board, agency, commission, office or other authority of any nature whatsoever for any governmental unit (federal, state, county, district, municipal, city or otherwise) whether now or hereafter in existence.
“Ground Lease” shall mean that certain Indenture between the City of New York, a municipal corporation existing under the laws of the State of New York, and U & F Realty Corp., dated as of November 29, 1967, as amended by an Amendment of Indenture dated September 19, 1969, and assigned by U & F Realty Corp. to Kings Plaza Shopping Center of Flatbush Avenue, Inc. and Kings Plaza Shopping Center of Avenue U, Inc. pursuant to an Assignment and Assumption Agreement dated January 27, 1970, as further amended by Agreement dated May 25, 1976, and as further assigned by Kings Plaza Shopping Center of Avenue U, Inc. (as successor by merger to Kings Plaza Shopping Center of Flatbush Avenue, Inc.) to Alexander’s Department Stores of Brooklyn, Inc., pursuant to an Assignment and Assumption of City Lease, dated as of June 18, 1998, and as further assigned by Alexander’s Department Stores of Brooklyn, Inc. to Alexander’s of Kings, LLC, pursuant to an Assignment and Assumption of Lease, dated as of May 31, 2001.
“Guarantor” shall mean Alexander’s, Inc., a Delaware corporation.
“Guarantor Sale or Pledge” and “Guarantor Sales or Pledges” shall have the meaning set forth in Section 6.3(c)(iii) hereof.
“Guaranty” shall mean that certain Guaranty of Recourse Obligations executed by Guarantor and dated as of the date hereof.
“Immediate Repairs” shall have the meaning set forth in Section 8.1 hereof.
“Improvements” shall have the meaning set forth in the granting clause of the Security Instrument.
“Indebtedness” shall mean, for any Person, without duplication: (i) all indebtedness of such Person for borrowed money, for amounts drawn under a letter of credit, or for the deferred purchase price of property for which such Person or its assets is liable, (ii) all unfunded amounts under a loan agreement, letter of credit, or other credit facility for which such Person would be liable if such amounts were advanced thereunder, (iii) all amounts required to be paid by such Person as a guaranteed payment to partners or a preferred or special dividend, including any mandatory redemption of shares or interests, (iv) all indebtedness guaranteed by such Person, directly or indirectly, (v) all obligations under leases that constitute capital leases for which such Person is liable, (vi) all obligations of such Person under interest rate swaps, caps, floors, collars and other interest hedge agreements, in each case whether such Person is liable contingently or otherwise, as obligor, guarantor or otherwise, or in respect of which obligations such Person otherwise assures a creditor against loss, and (vii) any other similar amounts.
10
“Indemnifiable Amounts” shall have the meaning set forth in Section 11.8 hereof.
“Indemnified Parties” shall mean (a) Administrative Agent and any Affiliate of Administrative Agent, (b) each Lender, each Co-Lead Arranger and each Co-Bookrunner, (c) any successor owner or holder of the Loan or participations in the Loan pursuant to Sections 11.14 and/or 11.15 hereof, (d) any trustees, custodians or other fiduciaries who hold or who have held a full or partial interest in the Loan for the benefit of any investor or other third party, (e) any receiver or other fiduciary appointed in a foreclosure or other Creditors Rights Laws proceeding, (f) any officers, directors, shareholders, partners, members, employees, agents, servants, representatives, contractors, subcontractors, affiliates or subsidiaries of any and all of the foregoing, and (g) the heirs, legal representatives, successors and assigns of any and all of the foregoing (including, without limitation, any successors by merger, consolidation or acquisition of all or a substantial portion of the Indemnified Parties’ assets and business) in all cases whether during the term of the Loan or as part of or following a foreclosure of the Loan.
“Independent Director” shall have the meaning set forth in Section 5.2(a) hereof.
“Individual Loan Commitment” shall mean, with respect to each Lender, the amount set forth opposite the name of such Lender on Exhibit C attached hereto and made a part hereof or as set forth in the applicable Assignment and Assumption Agreement, as the same may be reduced or increased from time to time pursuant to the terms of this Agreement or as appropriate to reflect any assignments to or by any Lender effectuated in accordance with the provisions of Section 11.15 hereof).
“Insurance Account” shall have the meaning set forth in Section 8.6 hereof.
“Insurance Premiums” shall have the meaning set forth in Section 7.1(b) hereof.
“Interest Accrual Period” means each period commencing on the date such LIBOR Loan is made, or in the case of the Continuation of a LIBOR Loan the day immediately following the last day of the preceding Interest Accrual Period for such Loan, and ending on the numerically corresponding day in the first, second or third calendar month thereafter, as the Borrower may select in a Notice of Borrowing or a Notice of Continuation, as the case may be, except that each Interest Accrual Period that commences on the last Business Day of a calendar month (or on any day for which there is no numerically corresponding day in the appropriate subsequent calendar month) shall end on the last Business Day of the appropriate subsequent calendar month. In addition to such periods, the Borrower may request Interest Accrual Periods for LIBOR Loans having durations of one day no more than thirty (30) days during any 12-month period beginning during the term of this Agreement but only in anticipation of the Borrower’s prepayment of the Loan or repayment of the Loan on the Maturity Date. Notwithstanding the foregoing: (i) if any Interest Accrual Period would otherwise end after the Maturity Date, such Interest Accrual Period shall end on the Maturity Date; and (ii) each Interest Accrual Period that would otherwise end on a day which is not a Business Day shall end on the immediately following Business Day (or, if such immediately following Business Day falls in the next calendar month, on the immediately preceding Business Day). In no event shall Borrower be permitted to have more than five (5) Interest Accrual Periods outstanding at any time during the term of the Loan.
11
“Interest Rate” shall mean the rate or rates at which the outstanding principal amount of the Loan bears interest from time to time in accordance with the provisions of Section 2.5 hereof.
“Interest Rate Protection Agreement” shall mean, as applicable, any interest rate cap agreement or interest rate swap agreement (together with the confirmation and schedules relating thereto) in form and substance reasonably satisfactory to Administrative Agent between Borrower (or, in the case of an interest rate swap agreement, Guarantor) and an Acceptable Counterparty or any Replacement Interest Rate Protection Agreement.
“IRS Code” shall mean the Internal Revenue Code of 1986, as amended from time to time or any successor statute.
“Land” shall have the meaning set forth in the Security Instrument.
“Lease” shall mean any and all leases, subleases, rental agreements and other agreements whether or not in writing affecting the use, enjoyment or occupancy of the Land and/or the Improvements heretofore or hereafter entered into by Borrower, or any predecessor landlord and binding on Borrower, in each case as landlord, and all extensions, amendments and modifications thereto, whether before or after the filing by or against Borrower of any petition for relief under Creditors Rights Laws.
“Leasing Reserve Account” shall have the meaning set forth in Section 8.3(a) hereof.
“Leasing Reserve Funds” shall have the meaning set forth in Section 8.3(a) hereof.
“Leasing Reserve Monthly Deposit” shall have the meaning set forth in Section 8.3(a) hereof.
“Lender” and “Lenders” shall have the meaning set forth in the introductory paragraph hereof.
“Lending Office” means, for each Lender, the office of such Lender specified in such Lender’s Administrative Questionnaire or in the applicable Assignment and Assumption Agreement, or such other office of such Lender as such Lender may notify the Administrative Agent in writing from time to time.
“Letter of Credit” shall mean an irrevocable, unconditional, transferable, clean sight draft standby letter of credit having an initial term of not less than one (1) year and with automatic renewals for one (1) year periods (unless the obligation being secured by, or otherwise requiring the delivery of, such letter of credit is required to be performed at least thirty (30) days prior to the initial expiry date of such letter of credit), for which Borrower shall have no reimbursement obligation and which reimbursement obligation is not secured by the Property or any other property pledged to secure the Note, in favor of Administrative Agent for the benefit of Lenders and entitling Administrative Agent to draw thereon in New York, New York or San Francisco, California, or both, based solely on a statement that Administrative Agent has the right to draw thereon executed by an officer or authorized signatory of Administrative Agent. A Letter of Credit must be issued by an Approved Bank. If at any time (a) the institution issuing any such Letter of Credit shall cease to be an Approved Bank or (b) if the Letter of Credit is due to expire prior to the termination of the event or events which gave rise to the requirement that Borrower deliver the Letter of Credit to Administrative Agent, Administrative Agent shall have the right to draw down the same in full and hold the proceeds thereof, unless Borrower shall deliver a replacement Letter of Credit from an Approved Bank within (i) as to (a) above, twenty (20) days after Administrative Agent delivers written notice to Borrower that the institution issuing the Letter of Credit has ceased to be an Approved Bank or (ii) as to (b) above, within ten (10) days prior to the expiration date of said Letter of Credit.
12
“LLC Agreement” shall have the meaning set forth in Section 5.1(c) hereof.
“LIBOR” shall mean, with respect to each Interest Accrual Period, the rate (expressed as a percentage per annum and rounded upward, as necessary, to the next nearest 1/1,000 of 1%) equal to the rate reported for deposits in U.S. dollars, for a one, two, or three-month period, as applicable for the applicable Tranche, that appears on Reuters Screen LIBOR01 Page (or the successor thereto) as of 11:00 a.m., London time, on the related Determination Date; provided that, (i) if such rate does not appear on Reuters Screen LIBOR01 Page as of 11:00 a.m., London time, on such Determination Date, Administrative Agent shall request the principal London office of any four major reference banks in the London interbank market selected by Administrative Agent to provide such bank’s offered quotation (expressed as a percentage per annum) to prime banks in the London interbank market for deposits in U.S. dollars for a one-month period as of 11:00 a.m., London time, on such Determination Date for the amounts for a comparable loan at the time of such calculation and, if at least two such offered quotations are so provided, LIBOR shall be the arithmetic mean of such quotations, and (ii) if fewer than two such quotations in clause (i) are so provided, Administrative Agent shall request any three major banks in New York City selected by Administrative Agent to provide such bank’s rate (expressed as a percentage per annum) for loans in U.S. dollars to leading European banks for a one-month period as of approximately 11:00 a.m., New York City time on the applicable Determination Date for the amounts for a comparable loan at the time of such calculation and, if at least two such rates are so provided, LIBOR shall be the arithmetic mean of such rates. Administrative Agent’s computation of LIBOR shall be conclusive and binding on Borrower for all purposes, absent manifest error.
“LIBOR Loan” shall mean the Loan (or any portion thereof) at such time as interest thereon accrues at a rate of interest based upon LIBOR.
“LIBOR Rate” shall mean the sum of (i) the Adjusted LIBOR Rate and (ii) the LIBOR Spread.
“LIBOR Spread” shall mean one hundred seventy basis points (1.70%).
13
“Loan” shall mean that certain loan in the original principal amount of the Loan Amount by the Lenders to Borrower pursuant to this Agreement, which loan is comprised of the Tranches.
“Loan Amount” shall mean $250,000,000.00.
“Loan Documents” shall mean, collectively, this Agreement, the Note, the Security Instrument, the Assignment of Leases, the Environmental Indemnity, the Assignment of Management Agreement, the Guaranty, the Pledge and Security Agreement, any Collateral Assignment of Interest Rate Protection Agreement and all other documents executed and/or delivered by Borrower or Guarantor in connection with the Loan.
“Loan Party” shall mean each of the Borrower, any SPE Component Entity and Guarantor and any Person acting on behalf of or at the direction of Borrower, any SPE Component Entity or Guarantor.
“Lockout Release Date” shall mean July 2, 2012.
“London Business Day” shall mean any day other than a Saturday, Sunday or any other day on which commercial banks in London, England are not open for business.
“Losses” shall mean any and all claims, suits, liabilities (including, without limitation, strict liabilities), actions, proceedings, obligations, debts, damages, losses, costs, expenses, fines, penalties, charges, fees, judgments, awards, amounts paid in settlement of whatever kind or nature (including but not limited to legal fees and other costs of defense).
“Major Lease” shall mean, as to the Property, (i) any Lease which, individually or when aggregated with all other Leases at the Property with the same Tenant or such Tenant’s Affiliates, and taking into consideration all so-called “must take” space in any such Lease but excluding expansion options and other preferential rights to lease additional space at the Property, is reasonably anticipated to demise 50,000 square feet or more of the Property’s rentable square feet, (ii) any Lease which contains any option, offer, right of first refusal or other similar entitlement to acquire all or any portion of the Property, (iii) any Lease with an Affiliate of Borrower as the Tenant thereunder, (iv) any Lease to be entered into during the existence and continuance of an Event of Default, or (v) any instrument guaranteeing or providing credit support for any Lease meeting the requirements of (i), (ii), (iii) and/or (iv) above.
“Management Agreement” shall mean the management agreement entered into by and between Borrower and Manager, together with that certain sub-management agreement between Manager and Vornado Management Corp., pursuant to which Manager and Vornado Management Corp. are to provide management and other services with respect to the Property.
“Manager” shall mean (i) Alexander’s, Inc. or (ii) such other entity selected as the manager of the Property in accordance with the terms of this Agreement or the other Loan Documents.
“Material Adverse Effect” shall mean a material adverse effect on (i) the Property, (ii) the business, profits, management, operations or financial condition of Borrower, Guarantor or the Property, (iii) the enforceability, validity, perfection or priority of the lien of the Security Instrument or the other Loan Documents, (iv) the ability of Borrower to perform its obligations under the Security Instrument or the other Loan Documents, or (v) the ability of Guarantor to perform its obligations under the Guaranty.
14
“Maturity Date” shall mean June 10, 2016, or such other date on which the final payment of principal of the Note becomes due and payable as therein or herein provided, whether at such stated maturity date, by declaration of acceleration, or otherwise.
“Maximum Legal Rate” shall mean the maximum non-usurious interest rate, if any, that at any time or from time to time may be contracted for, taken, reserved, charged or received on the indebtedness evidenced by the Note and as provided for herein or the other Loan Documents, under the laws of such state or states whose laws are held by any court of competent jurisdiction to govern the interest rate provisions of the Loan.
“Member” is defined in Section 5.1(c) hereof.
“Minimum Disbursement Amount” shall mean Twenty-Five Thousand and No/100 Dollars ($25,000).
“Monthly Insurance Deposit” shall have the meaning set forth in Section 8.6 hereof.
“Monthly Payment Amount” shall have the meaning set forth in Section 2.6(a) hereof.
“Monthly Payment Date” shall mean the first (1st) day of every calendar month occurring during the term of the Loan, or, if such day is not a Business Day, then the succeeding Business Day.
“Monthly Tax Deposit” shall have the meaning set forth in Section 8.6 hereof.
“Moody’s” shall mean Moody’s Investors Service, Inc.
“Multi-Asset Person” means a Person in respect of which the net operating income from the Property (or such portion thereof allocable to such Person) represents less than fifty percent (50%) of such Person’s aggregate gross income.
“Net Proceeds” shall mean: (i) the net amount of all insurance proceeds payable as a result of a Casualty to the Property, after deduction of reasonable out-of-pocket costs and expenses (including, but not limited to, reasonable attorneys’ fees), if any, in collecting such insurance proceeds, or (ii) the net amount of the Award, after deduction of reasonable costs and expenses (including, but not limited to, reasonable attorneys’ fees), if any, in collecting such Award.
“Net Proceeds Deficiency” shall have the meaning set forth in Section 7.4(b)(vi) hereof.
15
“New Manager” shall have the meaning set forth in Section 4.15(b) hereof.
“New Parking Operator” shall have the meaning set forth in Section 4.15(c) hereof.
“Non-Conforming Policy” shall have the meaning set forth in Section 7.1(j) hereof.
“Non-Excluded Taxes” shall have the meaning set forth in Section 2.5(c)(v)(A).
“Note” shall mean individually and/or collectively, as the context may require, each of those certain Promissory Notes in the form of Exhibit D attached hereto and made a part hereof, made by Borrower in favor of each Lender which now, or may in the future become, a party hereto in an amount equal to such Lender’s Individual Loan Commitment, payable for the account of such Lender’s Lending Office, which Notes shall evidence the Loan and shall have an aggregate stated principal amount equal to the Loan Amount as of the Closing Date, as each of the same may be amended, restated, replaced, extended, renewed, supplemented, severed, split, or otherwise modified from time to time.
“Notice of Borrowing” means a notice substantially in the form of Exhibit G (or such other form reasonably acceptable to the Administrative Agent and containing the information required in such Exhibit) to be delivered to the Administrative Agent pursuant to Section 2.2 evidencing the Borrower’s request for one or more Tranches of the Loan on the Closing Date.
“Notice of Continuation” means a notice substantially in the form of Exhibit H (or such other form reasonably acceptable to the Administrative Agent and containing the information required in such Exhibit) to be delivered to the Administrative Agent pursuant to Section 2.5(f) evidencing the Borrower’s request for the Continuation of a Tranche.
“Obligations” shall have the meaning set forth in Section 17.21(a) hereof.
“OFAC” shall have the meaning set forth in Section 3.28 hereof.
“Officer’s Certificate” shall mean a certificate delivered to Administrative Agent, for the benefit of Lenders, by Borrower which is signed by Responsible Officer of Borrower.
“Other Charges” shall mean all maintenance charges, impositions other than Taxes, and any other charges, vault charges and license fees for the use of vaults, chutes and similar areas adjoining the Property, now or hereafter levied or assessed or imposed against the Property or any part thereof.
“Other Income” shall mean all other applicable income as determined from the most recent operating statement for the Property at the time of determination, to the extent such income is recurring, determined on a trailing 12-month basis, computed in accordance with GAAP, including, without limitation (and without duplication), parking income, cellular tower income, vending income and other similar items. Notwithstanding the foregoing, (I) Other Income will not include insurance proceeds (other than proceeds of rent loss, business interruption or other similar insurance allocable to the applicable period); Awards (other than Awards arising from a temporary taking or the use and occupancy of all or part of the applicable Property allocable to the applicable period); proceeds of any financing; proceeds of any sale, exchange or transfer of the Property or any part thereof or interest therein (including proceeds of any sales of furniture, fixtures and equipment); capital contributions or loans to Borrower or an Affiliate of Borrower; any item of income otherwise includable in Other Income but paid directly by any tenant to a Person other than Borrower unless the corresponding expense is included in Actual Operating Expenses; payments paid by or on behalf of any tenant under a Lease in whole or partial consideration for the termination of any Lease; sales tax rebates from any Governmental Authority; sales, use and occupancy taxes on receipts required to be paid over by Borrower to any Governmental Authority; refunds and uncollectible accounts; interest income from any source; unforfeited security deposits, utility and other similar deposits; or any disbursements to Borrower from the Reserve Funds and (II) payments by or on behalf of any Tenant under a Lease shall only be included in Other Income with respect to in-place, signed Leases under which the applicable Tenant has taken possession and either (A) commenced payment of rent or (B) has been granted up to a maximum of nine (9) months of free rent; and (iii) payments by or on behalf of Tenants shall not be included in Other Income with respect to Leases which as of the date of calculation are (A) in default for the failure to pay base rent (beyond any applicable notice and grace period) as of the date of determination, (B) otherwise in default beyond applicable notice and grace periods and for which a notice of event of default or effective default thereunder has been sent and not cured or withdrawn or (C) for which the renewal notices required under such Leases have not been delivered to Administrative Agent on or prior to the earlier to occur of (x) in the case of Leases in excess of 25,000 rentable square feet only, the applicable lease renewal notification date for such Tenant’s Lease or (y) thirty (30) days prior to the applicable expiration of such Leases unless and until the applicable Tenants deliver such renewal notices or actually renew such Leases).
16
“Parking Management Agreement” shall mean that certain Management Agreement between Alexander’s of Kings, LLC and Parking Operator, dated as of March ___, 2010, pursuant to which Parking Operator manages the parking of motor vehicles as the Property, and any successor agreement entered into in accordance with the terms of this Agreement.
“Parking Operator” shall mean Standard Parking Corporation or any permitted replacement manager for the parking of motor vehicles at the Property.
“Participant” shall have the meaning set forth in Section 11.14(a) hereof.
“Participant Register” shall have the meaning set forth in Section 15.6 hereof.
“Patriot Act” shall have the meaning set forth in Section 3.29 hereof.
“Percentage Rent” shall mean percentage rent as determined from the most recent operating statement, to the extent recurring, determined on a trailing 12-month basis.
“Periodic Treasury Yield” shall mean the annual yield to maturity of the actively traded non-callable United States Treasury fixed interest rate security (other than any such security which can be surrendered at the option of the holder at face value in payment of federal estate tax or which was issued at a substantial discount) that has a maturity closest to (whether before, on or after) the Lockout Release Date (or if two or more such securities have maturity dates equally close to the Lockout Release Date, the average annual yield to maturity of all such securities), as reported in The Wall Street Journal or other authoritative publication or news retrieval service on the fifth (5th) Business Day preceding the prepayment date.
17
“Permitted Encumbrances” shall mean, collectively, (a) the lien and security interests created by this Agreement and the other Loan Documents, (b) all liens, encumbrances and other matters disclosed in the Title Insurance Policy, (c) liens, if any, for Taxes imposed by any Governmental Authority not yet due or delinquent, and (d) such other title and survey exceptions as Administrative Agent has approved or may approve in writing in Administrative Agent’s sole discretion.
“Permitted Equipment Leases” shall mean equipment leases or other similar instruments entered into with respect to the Personal Property; provided, that, in each case, such equipment leases or similar instruments (i) are entered into on commercially reasonable terms and conditions in the ordinary course of Borrower’s business and (ii) relate to Personal Property which is (A) used in connection with the operation and maintenance of the Property in the ordinary course of Borrower’s business and (B) replaceable without material interference or interruption to the operation of the Property.
“Person” shall mean any individual, corporation, partnership, joint venture, limited liability company, estate, trust, unincorporated association, 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.
“Personal Property” shall have the meaning set forth in the granting clause of the Security Instrument.
“Pledge and Security Agreement” shall mean that certain Pledge and Security Agreement, dated as of the date hereof, executed by Alexander’s, Inc. (relating to the pledge of interests in and distributions from Alexander’s of Brooklyn II, LLC) for the benefit of Administrative Agent and each Lender, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.
“Policies” shall have the meaning specified in Section 7.1(b) hereof.
“Post-Foreclosure Plan” shall have the meaning set forth in Section 11.4 hereof.
“Prime Rate” shall mean the annual rate of interest publicly announced by Wells Fargo Bank, N.A. in San Francisco, California, as its prime rate, as such rate shall change from time to time. If Wells Fargo Bank, N.A. ceases to announce a prime rate, Prime Rate shall mean the rate of interest published in The Wall Street Journal from time to time as the “Prime Rate”. If The Wall Street Journal ceases to publish the “Prime Rate”, Administrative Agent shall select an equivalent publication that publishes such “Prime Rate”, and if such “Prime Rates” are no longer generally published or are limited, regulated or administered by a governmental or quasigovernmental body, then Administrative Agent shall select a reasonably comparable interest rate index.
18
“Pro Rata Share” shall mean, with respect to each Lender, the ratio of such Lender’s Individual Loan Commitment to the Loan Amount. As of the date hereof, the Lenders’ respective Pro Rata Shares are set forth on Exhibit C attached hereto and made a part hereof.
“Prohibited Transfer” shall have the meaning set forth in Section 6.2(a) hereof.
“Property” shall have the meaning set forth in the Security Instrument.
“Property Documents” shall mean, individually and/or collectively, as the context may require, each REA and the Energy Services Agreement.
“Property Document Event” shall mean any event which would, directly or indirectly, (i) cause a termination right, right of first refusal, right of first offer or any other similar right to become exercisable as against Borrower, and/or cause any termination fees to be due from Borrower under the Property Documents or (ii) cause a Material Adverse Effect; provided, however, any of the foregoing shall not be deemed a Property Document Event to the extent Administrative Agent’s prior written consent is obtained with respect to the same.
“Property Taxes” shall mean all taxes, assessments, water rates, sewer rents, business improvement district or other similar assessments and other governmental impositions, including, without limitation, vault charges and license fees for the use of vaults, chutes and similar areas adjoining the Land, now or hereafter levied or assessed or imposed against the Property or any part thereof.
“Protective Advances” shall mean all sums expended as determined by Administrative Agent to be necessary or appropriate after Borrower fails to do so when required pursuant to the terms hereof or any other Loan Document beyond any applicable grace period: (a) to protect the validity, enforceability, perfection or priority of the Liens on the Property granted pursuant to the Loan Documents and the instruments evidencing the Debt; (b) to prevent the value of the Property, or any portion thereof, from being materially diminished (assuming the lack of such a payment within the necessary time frame could potentially cause such Property to lose value); or (c) to protect the Property, or any portion thereof, from being materially damaged, impaired, mismanaged or taken, including, without limitation, any amounts expended in connection therewith in accordance with Sections 7.1(g) and 10.2(f) hereof.
“Qualified Insurer” shall have the meaning set forth in Section 7.1(b) hereof.
“Qualified Manager” shall mean a reputable and experienced professional management organization which manages, together with its Affiliates, ten (10) properties of a type, quality and size similar to the Property, totaling in the aggregate no less than 3,500,000 square feet (excluding the Property).
“Qualified Parking Operator” shall mean a reputable and experienced professional management organization which manages, together with its Affiliates, parking garages at fifty (50) commercial Properties (other than the Property) in the New York metropolitan area or such other Person otherwise reasonably acceptable to Administrative Agent.
19
“Rating Agencies” shall mean each of S&P, Moody’s, Fitch, DBRS, Realpoint, and any other nationally-recognized statistical rating agency designated by Administrative Agent (and any successor to any of the foregoing) in connection with a securitization of the Debt.
“REA” shall mean, individually and/or collectively (as the context may require), each reciprocal easement, covenant, condition and restriction agreement or similar agreement affecting the Property (or any portion thereof) as more particularly described on Schedule IV hereto and any future reciprocal easement or similar agreement affecting the Property (or any portion thereof) entered into in accordance with the applicable terms and conditions hereof.
“Realpoint” shall mean Realpoint LLC.
“Register” shall have the meaning set forth in Section 15.6 hereof.
“Registrar” shall have the meaning set forth in Section 15.5 hereof.
“Reimbursement Contribution” shall have the meaning set forth in Section 17.21(c) hereof.
“Rent Loss Proceeds” shall have the meaning set forth in Section 7.1(a)(iii) hereof.
“Rent Roll” shall have the meaning set forth in Section 3.17 hereof.
“Rents” shall have the meaning set forth in the Security Instrument.
“Replacement Interest Rate Protection Agreement” means an interest rate cap agreement from an Acceptable Counterparty with terms identical to the Interest Rate Protection Agreement except that the same shall be effective in connection with replacement of the Interest Rate Protection Agreement following a downgrade, withdrawal or qualification of the long-term unsecured debt rating of the Counterparty; provided that to the extent any such interest rate cap agreement does not meet the foregoing requirements, a “Replacement Interest Rate Protection Agreement” shall be such interest rate cap agreement approved in writing by Administrative Agent which approval shall not be unreasonably withheld, conditioned or delayed.
“Replacement Reserve Account” shall have the meaning set forth in Section 8.2(a) hereof.
“Replacement Reserve Funds” shall have the meaning set forth in Section 8.2(a) hereof.
“Replacement Reserve Monthly Deposit” shall have the meaning set forth in Section 8.2(a) hereof.
20
“Replacements” for any period shall mean either (i) those certain replacements and/or alterations to the Property set forth on Schedule II attached hereto and (ii) replacements and/or alterations to the Property the cost of which are required to be capitalized according to GAAP and, if such approval is required pursuant to Section 4.21, approved by Administrative Agent in accordance with said Section.
“Reporting Failure” shall have the meaning set forth in Section 4.12(e) hereof.
“Required Financial Item” shall have the meaning set forth in Section 4.12(d) hereof.
“Required Rating” shall mean a rating of not less than “A-1” (or its equivalent) from each of the Rating Agencies if the term of such Letter of Credit is no longer than three (3) months or if the term of such Letter of Credit is in excess of three (3) months, a rating of not less than “A” (or its equivalent) from each of the Rating Agencies, or, such other rating that is reasonably acceptable to Administrative Agent
“Requisite Lenders” shall mean, as of any date, Lenders (which must include any Lender then acting as Administrative Agent at any time there are more than three (3) Lenders and Administrative Agent’s Individual Loan Commitment on the date of determination is not less than the greatest Individual Loan Commitment of any other Lender) having at least two thirds (2/3rd) of the aggregate amount of the Individual Loan Commitments; provided that (a) in determining such percentage at any given time, all then existing Defaulting Lenders will be disregarded and excluded, and the Pro Rata Shares of the Loan of the Lenders shall be redetermined, for voting purposes only, to exclude the Pro Rata Shares of the Loan of such Defaulting Lenders, and (b) at all times when two (2) or more Lenders (disregarding all then existing Defaulting Lenders) are party to this Agreement, the term “Requisite Lenders” shall in no event mean less than two (2) Lenders.
“Reserve Accounts” shall mean the Tax Account, the Insurance Account, the Replacement Reserve Account, the Leasing Reserve Account or any other escrow account established by this Agreement or the other Loan Documents.
“Reserve Funds” shall mean the Tax and Insurance Funds, the Replacement Reserve Funds, the Leasing Reserve Funds or any other escrow funds established by this Agreement or the other Loan Documents.
“Reserve Percentage” shall mean the rates (expressed as a decimal) of reserve requirements applicable to any Lender on the date two (2) London Business Days prior to the beginning of such Interest Accrual Period (including, without limitation, basic, supplemental, marginal and emergency reserves) under any regulations of any Governmental Authority as now and from time to time hereafter in effect, dealing with reserve requirements prescribed for Eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in Regulation D of the Board of Governors of the Federal Reserve System) (or against any other category of liabilities which includes deposits by reference to which LIBOR is determined or against any category of extensions of credit or other assets which includes loans by a non United States office of a depository institution to United States residents or loans which charge interest at a rate
21
determined by reference to such deposits). The determination of the Reserve Percentage shall be based on the assumption that Lenders funded one hundred percent (100%) of the Loan in the interbank Eurodollar market. In the event of any change in the rate of such Reserve Percentage during an Interest Accrual Period, or any variation in such requirements based upon amounts or kinds of assets or liabilities, or other factors, including, without limitation, the imposition of Reserve Percentages, or differing Reserve Percentages, on one or more but not all of the holders of the Loan or any participation therein, Administrative Agent may use any reasonable averaging and/or attribution methods which it deems appropriate and practical for determining the rate of such Reserve Percentage which shall be used in the computation of the Reserve Percentage. Administrative Agent’s computation of the Reserve Percentage shall be determined conclusively by Administrative Agent and shall be conclusive and binding on Borrower and each Lender for all purposes, absent manifest error.
“Reserve Trigger Period” shall mean a period commencing upon the Debt Yield being less than 9.25% for two consecutive calendar quarters, which Reserve Trigger Period shall expire upon the date that the Debt Yield is equal to or greater than 9.25% for two consecutive calendar quarters (provided that no Event of Default shall have occurred and be continuing at the time of expiration of such period).
“Responsible Officer” shall mean with respect to a Person, the chairman of the board, president, chief operating officer, chief financial officer, treasurer or a vice president of finance of such Person or such other similar officer of such Person appropriately authorized by the applicable Person.
“Restoration” shall have the meaning set forth in Section 7.2 hereof.
“Restoration Retainage” shall have the meaning set forth in Section 7.4(b)(iv) hereof.
“Restoration Threshold” shall mean an amount equal to five percent (5%) of the outstanding principal balance of the Loan.
“Restricted Account” shall have the meaning set forth in Section 9.1 hereof.
“Restricted Account Agreement” shall mean that certain Restricted Account Agreement by and among Borrower, Administrative Agent and Wells Fargo Bank, National Association (in its capacity as “Bank” thereunder) dated as of the date hereof.
“Restricted Party” shall have the meaning set forth in Section 6.1 hereof.
“Sale or Pledge” shall have the meaning set forth in Section 6.1 hereof.
“Security Instrument” shall mean that certain first priority Consolidated, Amended and Restated Fee and Leasehold Mortgage and Security Agreement dated the date hereof, executed and delivered by Borrower to Administrative Agent, for the benefit of Lenders, as security for the Loan and encumbering the Property (or any portion thereof), as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.
22
“Severed Loan Documents” shall have the meaning set forth in Section 10.2(d) hereof.
“Single Purpose Entity” shall mean an entity which satisfies all of the requirements of Section 5.1 hereof.
“SPE Component Entity” shall have the meaning set forth in Section 5.1(b) hereof.
“Special Member” shall have the meaning set forth in Section 5.1(c) hereof.
“Spread Maintenance Premium” shall mean, with respect to any prepayment of the outstanding principal amount of the Loan on or prior to the Lockout Release Date, a payment to Administrative Agent for the account of Lenders in an amount equal to the sum of the present value of each future installment of interest that would be payable under the Loan on the outstanding principal amount of the Loan from the date of such prepayment through the Lockout Release Date, assuming an interest rate equal to the LIBOR Spread, such future installments of interest to be discounted at an interest rate per annum equal to the Periodic Treasury Yield.
“S&P” shall mean Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc.
“State” shall mean the state in which the Property is located.
“Strike Price” shall mean six percent (6.0%).
“Tax Account” shall have the meaning set forth in Section 8.6 hereof.
“Tax and Insurance Funds” shall have the meaning set forth in Section 8.6 hereof.
“Taxes” shall have the meaning set forth in Section 2.5(c)(v)(A) hereof.
“TC Cap” shall have the meaning set forth in Section 7.1(k).
“Tenant” shall mean any Person leasing, subleasing or otherwise occupying any portion of the Property under a Lease or other occupancy agreement with Borrower.
“Tenant Direction Notice” shall have the meaning set forth in Section 9.2(a) hereof.
“Terrorism Coverage” shall have the meaning set forth in Section 7.1(k) hereof.
“Title Insurance Policy” shall mean that certain ALTA mortgagee title insurance policy issued with respect to the Property and insuring the lien of the Security Instrument.
“Tranche” shall mean each portion or component of the Loan designated by Borrower to Lender in a Notice of Borrowing or Notice of Continuation, as the case may be.
23
“Transfer Authorizer Designation Form” shall mean a form substantially in the form of Exhibit E attached hereto and made a part hereof to be delivered to Administrative Agent on the date hereof, as the same may be amended, restated or modified from time to time with the prior written approval of Administrative Agent.
“TRIA” shall have the meaning set forth in Section 7.1(k) hereof.
“UCC” or “Uniform Commercial Code” shall mean the Uniform Commercial Code as in effect in the State of New York.
“Wells Fargo” shall mean Wells Fargo Bank, National Association, in its individual capacity.
“Work Charge” shall have the meaning set forth in Section 4.16(a) hereof.
24
25
26
27
28
If a Lender provides a form pursuant to subsection (F)(i)(x) and the form provided by the Lender at the time such Lender first becomes a party to this Agreement or, with respect to a grant of a participation, the effective date thereof, indicates a United States interest withholding tax rate under the tax treaty in excess of zero, withholding tax at such rate shall be treated as Taxes other than “Non-Excluded Taxes” (“Excluded Taxes”) and shall not qualify as Non-Excluded Taxes unless and until such Lender provides the appropriate form certifying that a lesser rate applies, whereupon withholding tax at such lesser rate shall be considered Excluded Taxes solely for the periods governed by such form. If, however, on the date a Person becomes an assignee, successor or participant to this Agreement, a Lender transferor was entitled to indemnification or additional amounts under this Section 2.5(c)(v), then the Lender assignee, successor or participant shall be entitled to indemnification or additional amounts to the extent that the Lender transferor was entitled to such indemnification or additional amounts for Non-Excluded Taxes, and the Lender assignee, successor or participant shall be entitled to additional indemnification or additional amounts for any other or additional Non-Excluded Taxes.
29
30
then, in any such case, Borrower shall promptly pay to Administrative Agent for its account or the account of such Lender, upon demand, any additional amounts necessary to compensate Administrative Agent or such Lender, as applicable, for such additional cost or reduced amount receivable which Administrative Agent or such Lender deems to be material as reasonably determined by Administrative Agent or such Lender, provided that, such demand by such Lender must apply to all loans similarly affected by such change. If Administrative Agent or such Lender becomes entitled to claim any additional amounts pursuant to this subsection, Administrative Agent (for itself or on behalf of any such Lender) shall provide Borrower with not less than thirty (30) days notice specifying in reasonable detail the event by reason of which it has become so entitled and the additional amount required to fully compensate Administrative Agent and/or such Lender for such additional cost or reduced amount together with a certificate as to any additional costs or amounts payable pursuant to the foregoing sentence submitted by Administrative Agent (for itself or on behalf of any such Lender) to Borrower (which certificate shall be conclusive in the absence of manifest error). This provision shall survive payment of the Note and the satisfaction of all other obligations of Borrower under this Agreement and the Loan Documents.
31
32
33
34
in order to defray the expense incurred by Administrative Agent and Lenders in handling and processing such delinquent payment and to compensate Administrative Agents and Lenders for the loss of the use of such delinquent payment. Any such amount shall be secured by the Security Instrument and the other Loan Documents.
35
(including pursuant to Sections 2.7(d) and (e) below), Borrower may designate which Tranches the prepayment of principal shall be applied to.
36
37
benefit of Lenders shall be deposited immediately into the Restricted Account. Borrower shall take all actions reasonably requested by Administrative Agent to enforce Administrative Agent’s and any Lender’s rights under the Interest Rate Protection Agreement in the event of a default by the Counterparty and shall not waive, amend or otherwise modify any of its rights thereunder without Administrative Agent’s consent, which shall not be unreasonably withheld or delayed.
38
39
but Borrower shall not be charged any fees for the assignment of documents contemplated by this Section 2.9.
Borrower represents and warrants to Administrative Agent and each Lender as of the Closing Date that:
40
to transact business and is in good standing in the State; and (c) has all necessary approvals, governmental and otherwise (except where failure to have such would not cause or would not reasonably be expected to cause a Material Adverse Effect), and full power and authority to own, operate and lease the Property. Each Borrower has full power, authority and legal right to mortgage, grant, bargain, sell, pledge, assign, warrant, transfer and convey the Property pursuant to the terms hereof and to keep and observe all of the terms of this Agreement, the Note, the Security Instrument and the other Loan Documents on each such Borrower’s part to be performed.
41
affecting the Property or any portion thereof that has not been disclosed to Administrative Agent by Borrower in connection with the closing of the Loan and is not fully covered by insurance or, if determined adversely to Borrower or Guarantor, would have a Material Adverse Effect.
42
Borrower would not be considered "plan assets" within the meaning of 29 CFR Section 2510.3-101 because the Borrower satisfies the conditions specified in Section 4.19(b)(iii).
43
inadequacies in the Property, or any part thereof, which would materially adversely affect the insurability of the same or cause the imposition of extraordinary premiums or charges thereon or of any termination or threatened termination of any policy of insurance or bond.
44
Adverse Effect, except as referred to or reflected in said financial statements. Since the date of such financial statements, there has been no materially adverse change in the financial condition, operations or business of Borrower or Guarantor from that set forth in said financial statements.
45
of the premises demised under its Lease; (r) no Tenant occupying ten percent (10%) or more (by square feet) of the net rentable area of the Property is, to Borrower’s knowledge, a debtor in any state or federal bankruptcy or insolvency proceeding; (s) except as disclosed on Schedule V, there are no tenant allowances under any Lease that have not been paid in full by Borrower; and (t) to Borrower’s knowledge, each of the Tenants under the Leases has all necessary licenses and permits necessary to conduct the business contemplated to be conducted pursuant to such Tenant’s Lease.
46
47
Assets Control (“OFAC”) of the U.S. Department of the Treasury and the Specially Designated Nationals List maintained by OFAC) with the result that the Loan made by Lender is in violation of Applicable Law (“Embargoed Person”); (b) unless expressly waived in writing by Administrative Agent, no Embargoed Person has any interest of any nature whatsoever in Borrower or Guarantor, as applicable, with the result that the Loan is in violation of Applicable Law; and (c) to the knowledge of Borrower, none of the funds of Borrower or Guarantor, as applicable, have been derived from any unlawful activity with the result that the Loan is in violation of Applicable Law. Borrower covenants and agrees that in the event Borrower receives any notice that Borrower or Guarantor (or any of their respective beneficial owners, affiliates or participants) or any Person that has an interest in the Property is designated as an Embargoed Person, Borrower shall immediately notify Lender in writing. At Administrative Agent’s option, it shall be an Event of Default hereunder if Borrower or Guarantor or any other Loan Party is designated as an Embargoed Person with the result that maintaining the Loan will violate Applicable Law.
48
Holding Company Act of 1956, as amended, and Regulation Y thereunder of the Board of Governors of the Federal Reserve System.
49
Borrower agrees that, unless expressly provided otherwise, all of the representations and warranties of Borrower set forth in this Article III and elsewhere in this Agreement and the other Loan Documents shall survive for so long as any portion of the Debt remains owing to Lenders. All representations, warranties, covenants and agreements made in this Agreement and in the other Loan Documents shall be deemed to have been relied upon by Administrative Agent and Lenders notwithstanding any investigation heretofore or hereafter made by Administrative Agent and/or Lenders or on their behalf.
50
From the date hereof and until payment and performance in full of all obligations of Borrower under this Agreement, the Security Instrument, the Note and the other Loan Documents or the earlier release of the lien of the Security Instrument (and all related obligations) in accordance with the terms of this Agreement, the Security Instrument, the Note and the other Loan Documents, Borrower hereby covenants and agrees with Administrative Agent and each Lender that:
51
provision reasonably satisfactory to Administrative Agent for the protection of Administrative Agent’s interest in the Property is otherwise made. Notwithstanding the foregoing, the creation of any such reserves or the furnishing of other security, Borrower promptly shall comply with any contested Legal Requirement or Insurance Requirement or shall pay any contested Imposition or Lien, and compliance therewith or payment thereof shall not be deferred, if, at any time the Property or any portion thereof shall be, in Administrative Agent’s reasonable judgment, in imminent danger of being forfeited or lost or Administrative Agent is likely to be subject to civil or criminal damages as a result thereof. If such action or proceeding is terminated or discontinued adversely to Borrower, Borrower shall deliver to Administrative Agent reasonable evidence of Borrower’s compliance with such contested Imposition, Lien, Legal Requirements or Insurance Requirements, as the case may be.
52
53
54
55
56
of negotiations with the applicable Tenant), or conform to the form of national lease used by such Tenant, (iv) not be to an Affiliate of Borrower, and (v) not contain any option to purchase, any right of first refusal to purchase, any right to terminate (except in the event of the destruction or condemnation of substantially all of the Property). Any Lease that does not conform to the standards set forth in this Section 4.14(a) shall be subject to the prior written consent of Lender, which consent shall not be unreasonably withheld. Notwithstanding anything to the contrary contained herein, all Major Leases and all renewals, amendments, modifications and terminations thereof (including, without limitation, any subletting or assignment thereunder not contemplated by the express terms of such Major Lease) shall be, subject to clause (f) below, subject to Administrative Agent’s prior approval, which approval shall not be unreasonably withheld or delayed. Administrative Agent, on behalf of Lenders, shall execute and deliver a Subordination Non-Disturbance and Attornment Agreement in the form attached hereto as Exhibit I to Tenants under future Major Leases approved (or deemed approved) by Administrative Agent (as set forth above) promptly upon request with such commercially reasonable changes as may be requested by Tenants, from time to time, as are reasonably acceptable to Administrative Agent.
57
payment (“Lease Event Payment”) paid by any Tenant under any Lease in consideration of any termination, modification or amendment or settlement of any Lease or any release or discharge of any Tenant under any Lease from any obligation thereunder (a “Lease Event”). Borrower further covenants and agrees that (i) Borrower shall hold any such Lease Event Payment in trust for the benefit of Administrative Agent, for the benefit of Lenders, and (ii) (A) in the event such Lease Event Payment is less than $200,000, such Lease Event Payment shall be payable to Borrower or (B) in the event such Lease Event Payment equals or exceeds $200,000, such Lease Event Payment shall be placed by Borrower in reserve with Administrative Agent, for the benefit of Lenders, to be disbursed by Administrative Agent for tenant improvement and leasing commission costs with respect to the Property unless an Event of Default is continuing in which event it may be applied by Administrative Agent for payment of the Debt or otherwise in connection with the Loan and/or the Property, as so determined by Administrative Agent, in its sole discretion.
58
reasonably requested by Administrative Agent in order to evaluate such Material Business Terms); and, in the case of a withholding of consent, stating the grounds therefor in reasonable detail, then Administrative Agent’s approval and consent shall be deemed to have been granted. Subject to the approval time periods set forth above with respect to Leases and Lease modifications, so long as any Lease or Lease modification submitted to Administrative Agent for approval and consent (a) does not contain Material Business Terms which differ in any material adverse respect from the Material Business Terms approved by Administrative Agent and (b) otherwise does not contain any lease terms which deviate materially from the terms of the standard form of lease (except as stated in the Material Business Terms which have been approved or deemed approved by Administrative Agent), Administrative Agent’s consent to such Lease or Lease modification shall not be required.
59
Management Agreement or (ii) is otherwise satisfactory to Administrative Agent in all respects. New Manager and Borrower shall execute an Assignment of Management Agreement in a form substantially the same as that executed at Closing.
60
or other retirement arrangement, which is subject to Title I of ERISA or Section 4975 of the IRS Code, or a “governmental plan” within the meaning of Section 3(32) of ERISA; and (ii) one or more of the following circumstances is true: (A) Equity interests in Borrower are publicly offered securities, within the meaning of 29 C.F.R. § 2510.3 101(b)(2); (b) Less than 25 percent of each outstanding class of equity interests in Borrower are held by “benefit plan investors” within the meaning of 29 C.F.R.§ 2510.3 101(f)(2), as modified by § 3(42) of ERISA, disregarding the value of any equity interests in Borrower held by (I) a Person (other than a benefit plan investor) who has discretionary authority or control with respect to the assets of Borrower, (II) any Person who provides investment advice for a fee (direct or indirect) with respect to the assets of Borrower, or (III) any affiliate of a Person described in the immediately preceding clause (I) or (II);
61
reimbursed by Tenants pursuant to their respective Leases) over the Alteration Threshold. Borrower shall be entitled to a reduction or release, as the case may be, of the Alterations Collateral from time to time (but not more than once per calendar quarter) as the unpaid amounts incurred and to be incurred with respect to such alterations to the Improvements is reduced due to partial completion. Each request for approval of alterations to any Improvements shall contain a legend in capitalized bold letters on the top of the cover page stating: “THIS IS A REQUEST FOR CONSENT TO ALTERATIONS TO IMPROVEMENTS. ADMINISTRATIVE AGENT’S RESPONSE IS REQUESTED WITHIN TEN (10) BUSINESS DAYS. ADMINISTRATIVE AGENT’S FAILURE TO RESPOND WITHIN SUCH TIME PERIOD SHALL RESULT IN ADMINISTRATIVE AGENT’S CONSENT BEING DEEMED TO HAVE BEEN GRANTED” and Borrower shall include the following documentation with such request: (a) a detailed description of the alterations to be performed to the Improvements, and (b) all other materials reasonably determined by Borrower and Administrative Agent to be necessary in order for Administrative Agent to evaluate such proposed alterations. Within three (3) Business Days of Administrative Agent’s receipt of Borrower’s written request, Administrative Agent shall notify Borrower of any additional information or materials necessary for Administrative Agent’s evaluation of such request. If Administrative Agent fails to so notify Borrower that it requires additional information, the materials provided by Borrower with the initial request for consent shall be deemed to be sufficient to permit Administrative Agent to evaluate such request. In the event that Administrative Agent fails to grant or withhold its approval and consent to such alterations within ten (10) Business Days from the date that Administrative Agent shall have received all additional information or materials requested hereunder (and, in the case of a withholding of consent, stating the grounds therefor in reasonable detail), or, if no additional materials were so requested, then within ten (10) Business Days from the date of Borrower’s request for consent, then Administrative Agent’s approval and consent shall be deemed to have been granted.
62
63
64
65
66
67
68
appoint a new SPE Component Entity whose articles of incorporation or organization are substantially similar to those of such SPE Component Entity.
69
Special Member may serve as an Independent Director of Borrower or the SPE Component Entity (as applicable).
70
71
of being the Independent Director of a “special purpose entity” affiliated with the Borrower shall be qualified to serve as an Independent Director of the Borrower, provided that the fees that such individual earns from serving as an Independent Director of Affiliates of the Borrower in any given year constitute in the aggregate less than five percent (5%) of such individual’s annual income for that year. For purposes of this paragraph, a “special purpose entity” is an entity, whose organizational documents contain restrictions on its activities and impose requirements intended to preserve such entity’s separateness that are substantially similar to the Special Purpose Provisions in the Borrower’s LLC Agreement.
72
73
74
including, without limitation, ERISA, and such Transfer does not result in a violation of Sections 3.28 or 3.29 of this Agreement.
75
integrated with the use of the Property, and (b) grant easements, restrictions, covenants, reservations and rights of way in the ordinary course of business for access, water and sewer lines, telephone or other fiber optic or other data transmission lines, electric lines or other utilities or for other similar purposes, provided that no such transfer, conveyance or encumbrance set forth in the foregoing clauses (a) or (b) shall materially impair the utility and operation of the Property or be reasonably expected to have a Material Adverse Effect. In connection with any Transfer permitted pursuant to this Section 6.5, Administrative Agent shall execute and deliver any instrument reasonably necessary or appropriate, in the case of the transfers referred to in clause (a) above, to release the portion of the Property affected by such Taking or such transfer from the Lien of the Security Instrument or, in the case of clause (b) above, to subordinate the Lien of the Security Instrument to such easements, restrictions, covenants, reservations and rights of way or other similar grants upon receipt by Administrative Agent of:
76
77
78
79
by S&P, and each such insurer shall be referred to below as a “Qualified Insurer”) or by a syndicate of insurers pursuant to which (A) if more than one (1) but less than five (5) insurance companies issue the policies required hereunder, then at least seventy-five percent (75%) of the applicable insurance coverages represented by the policies required hereunder must be provided by insurance companies having a credit rating of “A-” or better by S&P and the balance of the applicable insurance coverages represented by the policies required hereunder must be provided by insurance companies having a credit rating of “BBB” or better by S&P or (B) if five (5) or more insurance companies issue the policies required hereunder, then at least sixty percent (60%) of the applicable insurance coverages required hereunder must be provided by insurance companies having a credit rating of “A-” or better by S&P and the balance of the applicable insurance coverages required hereunder must be provided by insurance companies having a credit rating of “BBB” or better by S&P. Notwithstanding the foregoing, Borrower shall be permitted to maintain the Policies required hereunder with insurance companies which do not meet the foregoing requirements (an “Otherwise Rated Insurer”), provided Borrower obtains a “cut-through” endorsement (that is, an endorsement which permits recovery against the provider of such endorsement) in form and substance acceptable to Administrative Agent or a contingent property policy (that is, a credit wrap with respect to an Otherwise Rated Insurer) reasonably acceptable to Lender with respect to any Otherwise Rated Insurer from an insurance company or companies that meet the claims paying ability ratings required above. Notwithstanding anything to the contrary contained in this Section 7.1 any terrorism insurance required to be maintained by Borrower hereunder may be provided by a captive insurance company provided that such policies issued by the captive insurance company shall be reinsured by an insurance company having a claims paying ability rating of “A” or better with S&P, and all policy forms and endorsement re-insurance agreements between such Captive Insurance Company and all such re-insurance companies providing the referenced re-insurance shall be reasonably acceptable to Agent, and Borrower shall provide copies of same to Administrative Agent and shall cause such re-insurance agreements to provide a cut-through endorsement acceptable to Administrative Agent;
80
81
82
damage to Administrative Agent and shall promptly commence and diligently prosecute the completion of the repair and restoration of the Property as nearly as possible to the condition the Property was in immediately prior to such Casualty, with such alterations as may be reasonably approved by Administrative Agent (a “Restoration”) and otherwise in accordance with Section 7.4. Borrower shall pay all costs of such Restoration whether or not such costs are covered by insurance. Administrative Agent may, but shall not be obligated to make proof of loss if not made promptly by Borrower.
83
84
85
86
87
88
progress of any Replacements and all materials being used in connection therewith and to examine all plans and shop drawings relating to such Replacements. Borrower shall cause all contractors and subcontractors to reasonably cooperate with Administrative Agent or Administrative Agent’s representatives or such other Persons described above in connection with inspections described in this Section.
89
Person, such certificate to be accompanied by lien waivers or other evidence of payment reasonably satisfactory to Administrative Agent; (v) upon completion of the tenant improvements, at Administrative Agent’s option, in its reasonable discretion, a title search for the Property indicating that the Property is free from all liens, claims and other encumbrances not previously approved by Administrative Agent (other than Permitted Encumbrances); and (vi) Administrative Agent shall have received such other evidence as Administrative Agent shall reasonably request that the tenant improvements at the Property and/or leasing commissions to be funded by the requested disbursement have been performed by Borrower (to the extent applicable) and are paid for or will be paid upon such disbursement to Borrower. Administrative Agent shall not be required to disburse Leasing Reserve Funds more frequently than once each calendar month nor in an amount less than the Minimum Disbursement Amount (or a lesser amount if the total amount of Leasing Reserve Funds is less than the Minimum Disbursement Amount, in which case only one disbursement of the amount remaining in the account shall be made).
90
exceed the amounts due for Property Taxes and Insurance Premiums pursuant to Sections 4.5 and 7.1 hereof, Administrative Agent shall, in its discretion, return any excess to Borrower or credit such excess against future payments to be made to the Tax and Insurance Funds. If the Tax and Insurance Funds are not sufficient to pay the amounts set forth above, Borrower shall promptly pay to Administrative Agent, upon demand, an amount which Administrative Agent shall reasonably estimate as sufficient to make up the deficiency.
91
respect to the Accounts and the amounts on deposit therein and the Account Collateral as described in this Agreement and in the Security Instrument, in addition to all of the rights and remedies available to a secured party under the UCC, and, notwithstanding anything to the contrary contained in this Agreement or in the Security Instrument, may apply the Reserve Funds as Administrative Agent determines in its sole discretion including, but not limited to, payment of the Debt.
92
and the Lenders as needed to enforce, protect or preserve the rights and remedies of Administrative Agent and the Lenders under this Agreement.
93
(for the benefit of Lenders) (subject to the terms hereof and of the Restricted Account Agreement). The Restricted Account shall have a title evidencing the foregoing in a manner reasonably acceptable to Administrative Agent. Borrower hereby grants to Administrative Agent (for the benefit of Lenders) a first-priority security interest in the Restricted Account and all deposits at any time contained therein and the proceeds thereof and will take all actions reasonably necessary to maintain in favor of Administrative Agent (for the benefit of Lenders) a perfected first priority security interest in the Restricted Account, including, without limitation, Borrower authorizes Lender to file UCC Financing Statements and continuations thereof to perfect Administrative Agent’s (for the benefit of Lenders) security interest in the same. All costs and expenses for establishing and maintaining the Restricted Account (or any successor thereto) shall be paid by Borrower. All monies now or hereafter deposited into the Restricted Account shall be additional security for the Debt. Borrower shall not alter or modify either the Restricted Account or the Restricted Account Agreement, in each case without the prior written consent of Administrative Agent. Borrower shall not further pledge, assign or grant any security interest in the Restricted Account or the monies deposited therein or permit any lien or encumbrance to attach thereto, or any levy to be made thereon, or any UCC Financing Statements, except those naming Administrative Agent, for the benefit of Lenders, as the secured party, to be filed with respect thereto. The Restricted Account (i) shall be an Eligible Account and (ii) shall not be commingled with other monies held by Borrower or Bank. Upon (A) Bank ceasing to be an Eligible Institution, (B) the Restricted Account ceasing to be an Eligible Account, (C) any resignation by Bank or termination of the Restricted Account Agreement by Bank or Administrative Agent and/or (D) the occurrence and continuance of an Event of Default, Borrower shall, within fifteen (15) days of Administrative Agent’s request, (1) terminate the existing Restricted Account Agreement, (2) appoint a new Bank (which such Bank shall (I) be an Eligible Institution, (II) other than during the continuance of an Event of Default, be selected by Borrower and approved by Administrative Agent and (III) during the continuance of an Event of Default, be selected by Administrative Agent), (3) cause such Bank to open a new Restricted Account (which such account shall be an Eligible Account) and enter into a new Restricted Account Agreement with Administrative Agent on substantially the same terms and conditions as the previous Restricted Account Agreement and (4) send new Tenant Direction Notices and the other notices required pursuant to the terms hereof relating to such new Restricted Account Agreement and Restricted Account. Borrower constitutes and appoints Administrative Agent its true and lawful attorney-in-fact with full power of substitution to complete or undertake the foregoing in the name of Borrower in the event Borrower fails to do the same. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revoked.
94
payment referred to under this clause (C) continues for five (5) days following notice to Borrower that the same is due and payable;
95
96
97
sum of money or (ii) for thirty (30) days after notice from Administrative Agent, in the case of any other default, provided that if such default cannot reasonably be cured within such thirty (30) day period and Borrower shall have commenced to cure such default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for so long as it shall require Borrower in the exercise of due diligence to cure such default, it being agreed that no such extension shall be for a period in excess of ninety (90) days (subject to further extension by Administrative Agent, in Administrative Agent’s sole discretion); or
98
Borrower or at law or in equity may be exercised by Administrative Agent, on behalf of the Lenders, and in accordance with Subsection (a) above, at any time and from time to time, whether or not all or any of the Debt shall be declared due and payable, and whether or not Administrative Agent on behalf of the Lenders and in accordance with Subsection (a) above, shall have commenced any foreclosure proceeding or other action for the enforcement of Administrative Agent’s and Lenders’ rights and remedies under this Agreement, the Security Instrument, the Note or the other Loan Documents with respect to the Property. Any such actions taken by Administrative Agent, on behalf of the Lenders, and in accordance with Subsection (a) above, shall be cumulative and concurrent and may be pursued independently, singularly, successively, together or otherwise, at such time and in such order as Administrative Agent, on behalf of the Lenders, has determined, or as Administrative Agent has otherwise been directed by Requisite Lenders, in their sole discretion, to the fullest extent permitted by Applicable Law, without impairing or otherwise affecting the other rights and remedies of Administrative Agent and Lenders permitted by Applicable Law, equity or contract or as set forth herein or in the Security Instrument, the Note or the other Loan Documents. No delay or omission to exercise any remedy, right or power accruing upon an Event of Default shall impair any such remedy, right or power or shall be construed as a waiver thereof, but any such remedy, right or power may be exercised from time to time and as often as may be deemed expedient. A waiver of one Default or Event of Default with respect to Borrower shall not be construed to be a waiver of any subsequent Default or Event of Default by Borrower or to impair any remedy, right or power consequent thereon.
99
deliver to Administrative Agent, for the benefit of Lenders, from time to time, promptly after the request of Administrative Agent, a severance agreement and such other documents as Administrative Agent shall request in order to effect the severance described in the preceding sentence, all in form and substance reasonably satisfactory to Administrative Agent. Borrower hereby absolutely and irrevocably appoints Administrative Agent as its true and lawful attorney, coupled with an interest, in its name and stead to make and execute all documents necessary or desirable to effect the aforesaid severance, Borrower ratifying all that its said attorney shall do by virtue thereof; provided, however, Administrative Agent shall not make or execute any such documents under such power until three (3) days after notice has been given to Borrower by Administrative Agent of Administrative Agent’s intent to exercise its rights under such power. Borrower shall not be obligated to pay any costs or expenses incurred in connection with the preparation, execution, recording or filing of the Severed Loan Documents and the Severed Loan Documents shall not contain any representations, warranties or covenants not contained in the Loan Documents and any such representations and warranties contained in the Severed Loan Documents will be given by Borrower only as of the Closing Date.
100
101
of the powers set forth herein or therein, together with such other powers as are reasonably incidental thereto, shall be authorized and binding upon all of the Lenders. Nothing herein shall be construed to deem the Administrative Agent a trustee or fiduciary for any Lender or to impose on the Administrative Agent duties or obligations other than those expressly provided for herein. Without limiting the generality of the foregoing, the use of the terms “Administrative Agent”, “Agent”, “agent” and similar terms in the Loan Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any Applicable Law. Instead, use of such terms is merely a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. The Administrative Agent shall deliver to each Lender, promptly upon receipt thereof by Administrative Agent, copies of each of the financial statements, certificates, notices and other documents delivered to Administrative Agent pursuant to the terms hereof. The Administrative Agent will furnish to any Lender, upon the request of such Lender, a copy (or, where appropriate, an original) of any document, instrument, agreement, certificate or notice furnished to the Administrative Agent by the Borrower, any Loan Party or any other Affiliate of the Borrower, pursuant to this Agreement or any other Loan Document not already delivered to such Lender pursuant to the terms of this Agreement or any such other Loan Document. As to any matters not expressly provided for by the Loan Documents (including, without limitation, enforcement of the Loan Documents or collection of the Debt, the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders (or all of the Lenders if explicitly required under any other provision of this Agreement), and such instructions shall be binding upon all Lenders and all holders of any of the Debt; provided, however, that, notwithstanding anything in this Agreement to the contrary, the Administrative Agent shall not be required to take any action which exposes the Administrative Agent to personal liability or which is contrary to this Agreement or any other Loan Document or Applicable Law. Not in limitation of the foregoing, the Administrative Agent may exercise or may refrain from exercising any right or remedy it or the Lenders may have under any Loan Document upon the occurrence of a Default or an Event of Default unless the Requisite Lenders have directed the Administrative Agent otherwise and unless and until Administrative Agent shall have received directions from Requisite Lenders, Administrative Agent may take such action, or refrain from taking such action, with respect to any Default or Event of Default as Administrative Agent shall determine in its sole discretion. Furthermore, and without limiting the foregoing, no Lender shall have any right of action whatsoever against the Administrative Agent as a result of the Administrative Agent acting or refraining from acting under this Agreement or any of the other Loan Documents in accordance with the instructions of the Requisite Lenders pursuant to the terms hereof, or where applicable, all the Lenders.
102
as trustee under indentures of, serve as financial advisor to, and generally engage in any kind of business with the Borrower, any other Loan Party or any other affiliate thereof as if it were any other bank and without any duty to account therefor to the other Lenders. Further, the Administrative Agent and any affiliate may accept fees and other consideration from the Borrower for services in connection with this Agreement and otherwise without having to account for the same to the other Lenders. The Lenders acknowledge that, pursuant to such activities, Wells Fargo or its affiliates, or any successor administrative agent, may receive information regarding the Borrower, other Loan Parties, and other Affiliates (including information that may be subject to confidentiality obligations in favor of such Person) and acknowledge that the Administrative Agent shall be under no obligation to provide such information to them.
103
to continue exercising at all or in any manner or under any duty of care, disclosure or fidelity any of the rights, authorities and powers granted or available to the Administrative Agent in this Section or in any of the Loan Documents, it being understood and agreed that in respect of the Property, or any act, omission or event related thereto, the Administrative Agent may act in any manner it may deem appropriate, in its sole discretion, and that the Administrative Agent shall have no duty or liability whatsoever to the Lenders, except to the extent resulting from its gross negligence or willful misconduct.
104
Property, at such price and upon such terms and conditions as the Requisite Lenders reasonably shall determine to be most advantageous to the Lenders. Any purchase money mortgage or deed of trust taken in connection with the disposition of the Property in accordance with the immediately preceding sentence shall name the Administrative Agent, as agent for the Lenders, as the beneficiary or mortgagee. In such case, the Administrative Agent and the Lenders shall enter into an agreement with respect to such purchase money mortgage or deed of trust defining the rights of the Lenders in the same Pro Rata Shares as provided hereunder, which agreement shall be in all material respects similar to this Article 11 insofar as the same is appropriate or applicable.
105
106
107
by this Agreement is only acting as counsel to the Administrative Agent and is not acting as counsel to such Lender.
108
shall extend to or affect any obligation not expressly waived or impair any right consequent thereon and any amendment, waiver or consent shall be effective only in the specific instance and for the specific purpose set forth therein. No course of dealing or delay or omission on the part of the Administrative Agent or any Lender in exercising any right shall operate as a waiver thereof or otherwise be prejudicial thereto. Any Event of Default occurring hereunder shall continue to exist until such time as such Event of Default is waived in writing in accordance with the terms of this Section, notwithstanding any attempted cure or other action by the Borrower, any other Loan Party or any other Person subsequent to the occurrence of such Event of Default. Except as otherwise explicitly provided for herein or in any other Loan Document, no notice to or demand upon the Borrower shall entitle the Borrower to other or further notice or demand in similar or other circumstances.
109
110
Lender, the transferor Lender, the Administrative Agent and the Borrower shall make appropriate arrangements so new substitute Notes are issued to the Assignee and such transferor Lender by Borrower, provided that Borrower shall only be responsible for the payment of its own costs up to $15,000 and any costs incurred in excess of $15,000 (when aggregated with those incurred pursuant to Section 11.20) shall be reimbursed pro rata by the Lenders. In connection with any such assignment, the transferor Lender shall pay to the Administrative Agent an administrative fee for processing such assignment in the amount of $4,500.00 for the account of Administrative Agent. Notwithstanding anything contained herein to the contrary, if any Lender assigns or participates any interest in any Loan held by it hereunder to the Borrower, any Loan Party or any of their respective affiliates then such Borrower, Loan Party or affiliate Assignee shall (A) have no right to vote on, or consent to, any action taken by the Borrower, the Administrative Agent or the Lenders in connection with the Loan, (B) not, in any event or circumstance, be a successor Administrative Agent, (C) shall have no voting or consent rights whatsoever as a participant pursuant to any participation agreement or otherwise, (D) the percentage of the Loan that is owned by such Assignee shall not be included for the purpose of any calculations of percentages under the Loan Documents (other than calculations relating to the distribution of payments of principal, interest and other amounts payable by Borrower and the other Loan Parties pursuant to the Loan Documents; provided, however, that during the continuance of an Event of Default, the proviso in this parenthetical shall not apply and such Assignee shall not receive any such payments) and (E) the Additional Borrower Debtholder Restrictions shall apply. An Assignee shall not be entitled to receive any greater payment under Subsection 2.5(c)(vi) or (viii) than the applicable assigning Lender would have been entitled to receive with respect to the interest assigned to such Assignee, unless the assignment of the interest to such Assignee is made with the Borrower’s prior written consent. Each Assignee agrees, for the benefit of the Borrower, to comply with Section 2.5(c)(v)(F) once it becomes a Lender.
111
between the Borrower and the Administrative Agent) may be waived, (iv) the acceleration of the maturity of the Loan may be rescinded and (v) the continuance of any Default or Event of Default may be waived (either generally or in a particular instance and either retroactively or prospectively) with, but only with, the written consent of the Requisite Lenders (or the Administrative Agent at the written direction of the Requisite Lenders), and, in the case of an amendment to any Loan Document, the written consent of each Loan Party which is party thereto. Notwithstanding the previous sentence, Administrative Agent, shall be authorized on behalf of all the Lenders, without the necessity of any notice to, or further consent from, any Lender, to waive (i) the imposition of the late fees provided in Section 2.6(c) hereof, up to a maximum of three (3) times per calendar year and (ii) the requirement that the outstanding principal balance of the Loan and any overdue interest shall accrue interest at the Default Rate upon the occurrence and during the continuance of an Event of Default, pursuant to Section 2.5(d) hereof.
112
Wherever any approval, consent or direction herein or in any other Loan Document is required by “each Lender” or “Lenders” it shall mean that such approval, consent or direction must be agreed to by the unanimous consent of all of the Lenders.
113
right, to communicate or interface directly with any Lender or Lenders concerning any consents, approvals, modifications or amendments or waivers hereunder.
114
notes shall be identical in substance and substantially similar in form to the Loan Documents, (f) the maturity date of any such component note shall be the same as the scheduled Maturity Date of the Note immediately prior to the issuance of such component notes and (g) any prepayments shall be applied pro rata in accordance with their respective principal balances to the payment of the outstanding balance of the component notes such that Borrower’s economic position shall remain the same as if there had been no component notes. Any of the foregoing grants, assignments, encumbrances, bifurcations, sales and/or transfers may be made to any Eligible Assignee in such manner as may be determined by Lender in its sole discretion and Borrower shall have no consent or other rights with respect thereto. The transaction(s) referred to above shall hereinafter be referred to collectively as “Secondary Market Transactions”. As used herein, the term “Lender Party” and “Lender Parties” shall be deemed to refer to, individually and/or collectively (as the context requires), Lender and each Eligible Assignee.
115
Except to the extent caused by the actual willful misconduct or gross negligence of the Indemnified Parties, Borrower shall, at its sole cost and expense, protect, defend, indemnify, release and hold harmless the Indemnified Parties from and against any and all Losses imposed upon or incurred by or asserted against any Indemnified Parties and directly or indirectly arising out of or in any way relating to any one or more of the following: (a) any accident, injury to or death of persons or loss of or damage to property occurring in, on or about the Property or any part thereof or on the adjoining sidewalks, curbs, adjacent property or adjacent parking areas, streets or ways; (b) any use, nonuse or condition in, on or about the Property or any part thereof or on the adjoining sidewalks, curbs, adjacent property or adjacent parking areas, streets or ways; (c) performance of any labor or services or the furnishing of any materials or other property in respect of the Property or any part thereof; (d) any failure of the Property or any part thereof to be in compliance with any Applicable Law; (e) any and all claims and demands whatsoever which may be asserted against Administrative Agent or any Lender by reason of any alleged obligations or undertakings on their part to perform or discharge any of the terms, covenants, or agreements contained in any Lease; (f) the payment of any commission, charge or brokerage fee to anyone (other than a broker or other agent retained by Administrative Agent or any Lender) which may be payable in connection with the funding of the Loan evidenced by the Note and secured by the Security Instrument; and/or (g) the holding or investing of the funds on deposit in the Accounts or the performance of any work or the disbursement of funds in each case in connection with the Reserve Funds. Any amounts payable to Indemnified Parties by reason of the application of this Section 12.1 shall be paid by Borrower within five (5) Business Days after demand therefor and, if not paid within
116
such period, shall thereafter accrue interest at the Default Rate from the date loss or damage is sustained by Indemnified Parties until paid. Notwithstanding anything to the contrary contained herein, Borrower shall not have any liability hereunder this Section 12.1 with respect to any acts, events or circumstances first arising after (i) the date on which Administrative Agent, Lender or a Person that is not an Affiliate of Borrower or Guarantor acquires title to the Property, whether through foreclosure, private power of sale or the delivery of a deed-in-lieu of foreclosure, except with respect to acts taken by Borrower, Guarantor or any Affiliate of the foregoing prior to or on or after such date or (ii) the date on which a receiver, trustee, liquidator or conservator, other than any such Person appointed at the request of Borrower, Guarantor or any Affiliate of the foregoing, takes control of the Property, except with respect to acts taken by Borrower, Guarantor or any Affiliate of the foregoing prior to or on or after such date. Borrower’s obligations hereunder shall survive the occurrence of the events described in the immediately preceding sentence.
117
the expense of additional separate counsel of any Indemnified Party unless in the reasonable opinion of Administrative Agent or Lender a conflict or potential conflict exists between such Indemnified Party and Administrative Agent or Lender. So long as Borrower is resisting and defending such action, suit or proceeding as provided above in a prudent and commercially reasonable manner, Lender and the Indemnified Parties shall not be entitled to settle such action, suit or proceeding without Borrower’s consent which shall not be unreasonably withheld or delayed, and Administrative Agent or Lender, as the case may be, agrees that it will not settle any such action, suit or proceeding without the consent of Borrower; provided, however, that if Borrower is not diligently defending such action, suit or proceeding in a prudent and commercially reasonable manner as provided above, and Administrative Agent or Lender has provided Borrower with thirty (30) days’ prior written notice, or shorter period if mandated by the requirements of applicable law, and opportunity to correct such determination, Administrative Agent or Lender, as the case may be, may settle such action, suit or proceeding as to the claim against such party and claim the benefit of this Section 12.4 with respect to settlement of such action, suit or proceeding. Any Indemnified Party will give Borrower prompt notice after such Indemnified Party obtains actual knowledge of any potential claim by such Indemnified Party for indemnification hereunder. Borrower shall have the right to settle or compromise any action, proceeding or claim against any Indemnified Party so long as the same does not include any admission of wrongdoing on the part of such Indemnified Party.
118
Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Property, in the Rents and in any other collateral given to Lenders and Administrative Agent, on behalf of Lenders, and Administrative Agent and Lenders, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, shall not sue for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument or the other Loan Documents. The provisions of this Section shall not, however, (1) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (2) impair the right of Administrative Agent, on behalf of Lenders, to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security Instrument; (3) affect the validity or enforceability of any indemnity, guaranty or similar instrument (including, without limitation, the indemnities set forth in Article 12 hereof, in the Guaranty and in the Environmental Indemnity) made in connection with the Loan or any of the rights and remedies of Administrative Agent and Lenders thereunder (including, without limitation, Lenders’ and Administrative Agent’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13); (4) impair the right of Administrative Agent, on behalf of Lenders, to obtain the appointment of a receiver; (5) impair the enforcement of the assignment of leases contained in the Security Instrument; (6) constitute a prohibition against Administrative Agent, on behalf of Lenders, to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument or to commence any other appropriate action or proceeding in order for Administrative Agent to exercise Lenders’ remedies against the Property; or (7) constitute a waiver of the right of Administrative Agent and Lenders to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any Losses incurred by Administrative Agent and/or Lenders (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
119
120
the Bankruptcy Code or any other Creditors Rights Laws; (ii) an Affiliate, officer, director, or representative which Controls, directly or indirectly, Borrower files, or joins in the filing of, an involuntary petition against Borrower under the Bankruptcy Code or any other Creditors Rights Laws, or solicits or causes to be solicited petitioning creditors for any involuntary petition against Borrower from any Person or colludes in the filing of an involuntary petition against Borrower; (iii) Borrower files an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it, by any other Person under the Bankruptcy Code or any other Creditors Rights Laws, or solicits or causes to be solicited petitioning creditors for any involuntary petition from any Person; (iv) any Affiliate, officer, director or representative which Controls Borrower consents to or acquiesces in or joins in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower or any portion of the Property unless such appointment is requested by Administrative Agent; (v) Borrower makes a general assignment for the benefit of creditors, or admits, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due unless such admission is true; or (vi) the voluntary Sale or Pledge of all or substantially all of the direct or indirect interests in Borrower or the Property in violation of the provisions of this Agreement, provided, that, Borrower shall be entitled to notice and ten (10) days to cure the transfer of indirect interests in Borrower prior to such Sale or Pledge of indirect interests causing the Debt to be fully recourse to Borrower and Guarantor.
121
If to Borrower: c/o Alexander’s, Inc.
210 Route 4 East
Paramus, New Jersey 07652
Attention: Chief Financial Officer
Facsimile No.: (201) 843-2198
With a copy to: Vornado Realty Trust
888 Seventh Avenue
New York, New York 10106
Attention: Executive Vice President - Capital Markets
Facsimile No.: (212) 894-7073
And: Vornado Realty Trust
888 Seventh Avenue
New York, New York 10106
Attention: Corporation Counsel
Facsimile No.: (212) 894-7996
And: Sullivan & Cromwell LLP
125 Broad Street
New York, New York 10004
Attention: Arthur Adler, Esq.
Facsimile No.: (212) 291-9001
If to Administrative Agent: Wells Fargo Bank, National Association
Wells Fargo Center
1901 Harrison Street, 2nd Floor
MAC A0227-020
Oakland, California 94612
Attention: Commercial Mortgage Servicing
Facsimile No.: (866) 359-5352
122
With a copy to: Cadwalader, Wickersham & Taft LLP
227 W. Trade Street, Suite 2400
Charlotte, North Carolina 28202
Attention: James P. Carroll, Esq.
Facsimile No.: (704) 348-5200
If to any other Lender: To such Lender’s address or telecopy number as set forth on the signature page hereof or in the applicable Assignment and Assumption Agreement, or to such other address as such Lender may specify to Administrative Agent and Borrower from time to time.
or addressed as such party may from time to time designate by written notice to the other parties.
Either party by notice to the other may designate additional or different addresses for subsequent notices or communications.
123
Reserve or other regulatory risk control program or guideline, or (iv) otherwise cause Administrative Agent or any Lender to violate any Applicable Law or regulation.
124
125
126
conclusive absent manifest error, and the Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower and any Lender, at any reasonable time from time to time upon reasonable prior notice. Each Lender that sells a participation shall, acting solely for this purpose as an agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in the Loan or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such interest or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
127
single or partial exercise thereof preclude any other future exercise, or the exercise of any other right, power, remedy or privilege. In particular, and not by way of limitation, by accepting payment after the due date of any amount payable under this Agreement, the Security Instrument, the Note or the other Loan Documents, neither Administrative Agent nor any Lender shall be deemed to have waived any right either to require prompt payment when due of all other amounts due under this Agreement, the Security Instrument, the Note and the other Loan Documents, or to declare a default for failure to effect prompt payment of any such other amount.
128
on behalf of each and every person acquiring any interest in or title to the Property subsequent to the date of the Security Instrument and on behalf of all persons to the extent permitted by Applicable Law.
129
provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.
130
and recording fees and expenses, title insurance and reasonable fees and expenses of counsel for providing to Administrative Agent and Lenders all required legal opinions, and other similar expenses incurred in creating and perfecting the lien in favor of Administrative Agent for the benefit of Lenders pursuant to this Agreement, the Security Instrument, the Note and the other Loan Documents; (vii) enforcing or preserving any rights, in response to third party claims or the prosecuting or defending of any action or proceeding or other litigation, in each case against, under or affecting Borrower, this Agreement, the Security Instrument, the Note, the other Loan Documents, the Property, or any other security given for the Loan; and (viii) enforcing any obligations of or collecting any payments due from Borrower under this Agreement, the Security Instrument, the Note and the other Loan Documents or with respect to the Property or in connection with any refinancing or restructuring of the credit arrangements provided under this Agreement in the nature of a “work-out” or of any insolvency or bankruptcy proceedings; provided, however, that Borrower shall not be liable for the payment of any such costs and expenses to the extent the same arise (A) by reason of the gross negligence, illegal acts, fraud or willful misconduct of Administrative Agent or any Lender or (B) in any other instance herein or in any other Loan Document that provides that the matter in question is to be “at Lender’s or Administrative Agent’s expense” or “at no cost to Borrower” or words of similar import. Borrower also acknowledges and agrees that formal written appraisals of the Property by a licensed independent appraiser may be required by Administrative Agent’s and/or Lender’s internal procedures and/or federal regulatory reporting requirements on an annual and/or specialized basis and that Administrative Agent and/or Lender may, at its option, require inspection of the Property by an independent supervising architect and/or cost engineering specialist at least semiannually. Notwithstanding the foregoing, Borrower shall not be required to pay for any appraisal or any other report (or inspection) unless an Event of Default has occurred and is continuing or unless required by regulatory requirements. In addition, if Borrower is undertaking a Restoration or is performing any work at the Property that requires the obtaining of a building permit, then Borrower shall pay the reasonable out-of-pocket costs of architect’s engineers and other consultants reasonably retained by Administrative Agent to review the performance of such Restoration or work. Any amounts payable to Administrative Agent and any Lender pursuant to this Section 17.7 shall become immediately due and payable upon written demand and, if the same is not paid within ten (10) Business Days from such written demand, shall bear interest at the Default Rate from the date which is ten (10) Business Days from such written demand until the date such amounts have been paid. Notwithstanding the foregoing or anything herein to the contrary, Borrower shall not be obligated to pay any of the foregoing costs and expenses of any Lender, other than Administrative Agent, that are incurred prior to an Event of Default.
131
pursuant to this Section 17.8 shall become immediately due and payable upon written demand and, if the same is not paid within ten (10) Business Days from such written demand, shall bear interest at the Default Rate from the date which is ten (10) Business Days from such written demand until the date such amounts have been paid.
132
Borrower is not relying on Administrative Agent’s or Lenders’ expertise, business acumen or advice in connection with the Property.
133
Property, except that such approval shall not be required in connection with Administrative Agent’s or Lenders’ customary marketing materials used for internal purposes or for client meetings or pitches.
134
in the business of real estate financings and other real estate transactions and investments which may be viewed as adverse-to or competitive with the business of Borrower or its Affiliates.
135
Loan Documents (collectively, the “Obligations”) and in consideration therefore each Borrower desires to enter into an allocation and contribution agreement among themselves as set forth in this Section to allocate such benefits among themselves and to provide a fair and equitable agreement to make contributions among each of Borrowers in the event any payment is made by any individual Borrower hereunder to Administrative Agent for the benefit of Lenders (such payment being referred to herein as a “Contribution”, and for purposes of this Section, includes any exercise of recourse by Administrative Agent or any Lender against any Property of a Borrower and application of proceeds of such Property in satisfaction of such Borrower’s obligations, to Lender under the Loan Documents).
136
137
138
[NO FURTHER TEXT ON THIS PAGE]
139
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their duly authorized representatives, all as of the day and year first above written.
BORROWER:
ALEXANDER’S OF KINGS, LLC, a Delaware
limited liability company
By: |
/s/ Alan J. Rice |
Name: |
Alan J. Rice |
Title: |
Secretary |
KINGS PARKING, LLC, a Delaware limited
liability company
By: |
/s/ Alan J. Rice |
Name: |
Alan J. Rice |
Title: |
Secretary |
ALEXANDER’S KINGS PLAZA, LLC, a
Delaware limited liability company
By: |
/s/ Alan J. Rice |
Name: |
Alan J. Rice |
Title: |
Secretary |
LENDER:
WELLS FARGO BANK, NATIONAL
ASSOCIATION
By: |
/s/ John G. Nicol |
Name: |
John G. Nicol |
Title: |
Director |
Address for notices and Lending Office:
WELLS FARGO BANK, NATIONAL
ASSOCIATION
Wells Fargo Center
1901 Harrison Street, 2nd Floor
MAC A0227-020
Oakland, California 94612
Attention: Commercial Mortgage Servicing
Facsimile No.: 866-359-5352
LENDER:
ROYAL BANK OF CANADA, a Canadian
chartered bank
By: |
/s/ G. David Cole |
Name: |
G. David Cole |
Title: |
Authorized Signatory |
Address for notices and Lending Office:
Three World Financial Center
12th Floor, 200 Vesey Street
New York, NY 10281-8098
Attention: Dan LePage
Telephone: (212) 428-6605
Fax: (212) 428-6459
With a copy to:
Three World Financial Center
12th Floor, 200 Vesey Street
New York, NY 10281-8098
Attention: GLA Administrator
Telephone: (877) 332-7455
Fax: (212) 428-2372
and with a copy by fax only:
Jamie Cameron
Telephone: (416) 842-1405
Fax: (416) 842-4020
LENDER:
CRÉDIT AGRICOLE CORPORATE &
INVESTMENT BANK, a banking corporation
organized and existing under the laws of France
By: |
/s/ Daniel J. Reddy |
Name: |
Daniel J. Reddy |
Title: |
Director |
By: |
/s/ Paul T. Ragusin |
Name: |
Paul T. Ragusin |
Title: |
Director |
Address for notices and Lending Office:
1301 Avenue of the Americas, 18th Floor
New York, NY 10019
Attention: Daniel J. Reddy
Telephone: (212) 261-3292
Fax: (917) 849-5494
ADMINISTRATIVE AGENT:
WELLS FARGO BANK, NATIONAL
ASSOCIATION
By: |
/s/ John G. Nicol |
Name: |
John G. Nicol |
Title: |
Director |
SCHEDULE IV
DESCRIPTION OF REA
Construction, Operation and Reciprocal Easement Agreement dated February 1, 1970 recorded May 27, 1970 in Reel 413 page 171, as affected by Assignment by Agreement dated May 31, 1973 recorded June 27, 1973 in Reel 642 page 438, as affected by Assignment and Assumption Agreement dated July 29, 1976 and recorded August 2, 1976 in Reel 862 page 1477, as affected by Amended and Restated Construction, Operation and Reciprocal Easement Agreement dated June 18, 1998 and recorded July 31, 1998 in Reel 4251 page 1565, as affected by Unrecorded Supplemental Construction, Operation and Reciprocal Easement Agreement dated June 18, 1998 (included in file), as affected by First Amendment to Supplement, dated June 18, 2003, as affected by First Amendment to Amended and Restated Construction, Operation and Reciprocal Easement Agreement dated June 18, 2003 and recorded on October 24, 2003 as CRFN No. 2003000433387, as affected by Second Amendment to Amended and Restated Construction, Operation and Reciprocal Easement Agreement dated June 18, 2003 and recorded on October 24, 2003 as CRFN No. 2003000433388, as affected by Third Amendment to Amended and Restated Construction, Operation and Reciprocal Easement Agreement dated November 9, 2007 and recorded on July 18, 2008 as CRFN No. 2008000286900.
EXHIBIT A
Form of Tenant Direction Letter
[BORROWER LETTERHEAD]
____________ ___, 200__
[Tenants under Leases]
• Lease dated ________ between _______________,
as Landlord, and _______________, as Tenant,
concerning premises known as
Gentlemen:
This letter shall constitute notice to you that the undersigned has granted a security interest in the captioned lease and all rents, additional rent and all other monetary obligations to landlord thereunder (collectively, “Rent”) in favor of Wells Fargo Bank, National Association, as administrative agent (“Administrative Agent”), for the benefit of various lenders, to secure certain of the undersigned’s obligations to Administrative Agent and such lenders pursuant to a loan agreement entered into by landlord with Administrative Agent and such lenders. The undersigned hereby irrevocably instructs and authorizes you to disregard any and all previous notices sent to you in connection with Rent and hereafter to deliver all Rent to the following address:
______________________________
______________________________
______________________________
______________________________
______________________________
[Borrower Name]
c/o [Restricted Account Address]
Attention:
EXHIBIT B
ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT, dated as of _________, 200___, among [NAME OF ASSIGNING BANK] (“Assignor”), [NAME OF ASSIGNEE] (“Assignee”) [, NAME OF BORROWER, a __________________________ (“Borrower”)] and [NAME OF ADMINISTRATIVE AGENT], as administrative agent for Lenders, as defined below (in such capacity, together with its successors in such capacity, “Administrative Agent”).
Preliminary Statement
1. This Assignment and Assumption Agreement (this “Agreement”) relates to the Loan Agreement (as the same may be amended from time to time, the “Loan Agreement”) dated June ____, 2011 among Alexander’s of Kings, LLC, Kings Parking, LLC and Alexander’s Kings Plaza, LLC (“Borrower”), the lender(s) party thereto (each a “Lender” and, collectively, “Lenders”) and Administrative Agent. All capitalized terms not otherwise defined herein shall have the respective meanings set forth in the Loan Agreement.
2. Subject to the terms and conditions set forth in the Loan Agreement, Assignor has made an Individual Loan Commitment to Borrower in an aggregate principal amount of $______________ (“Assignor’s Loan Commitment”).
3. The aggregate outstanding principal amount under Assignor’s Individual Loan Commitment at the commencement of business on the date hereof is $____________.
4. Assignor desires to assign to Assignee all of the rights of Assignor under the Loan Agreement in respect of a portion of Assignor’s Individual Loan Commitment and the loan made pursuant thereto, such portion being in an amount equal to $ ____________ (the “Assigned Loan and Commitment”), of which $ __________ is currently outstanding and Assignee desires to accept assignment of such rights and assume the corresponding obligations from Assignor on such terms.
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements contained herein, the parties hereto agree as follows:
SECTION 1. Assignment. Assignor hereby assigns and sells to Assignee all of the rights of Assignor under the Loan Agreement in and to the Assigned Loan and Commitment, and Assignee hereby accepts such assignment from Assignor and assumes all of the obligations of Assignor under the Loan Agreement with respect to the Assigned Loan and Commitment. Upon the execution and delivery hereof by Assignor, Assignee, Administrative Agent (and, if applicable, Borrower), and the payment of the amount specified in Section 2 hereof required to be paid on the date hereof, (1) Assignee shall, as of the commencement of business on the date hereof, succeed to the rights and obligations of a Lender under the Loan Agreement with an Individual Loan Commitment in an amount equal to the Assigned Loan and Commitment and (2) the Individual Loan Commitment of Assignor shall, as of the commencement of business on the
date hereof, be reduced correspondingly and Assignor released from its obligations under the Loan Agreement to the extent such obligations have been assumed by Assignee. Assignor represents and warrants that it (x) owns the Assigned Loan and Commitment free and clear of all liens and other encumbrances and (y) is legally authorized to enter into and perform this Agreement. Except as provided in the immediately preceding sentence, the assignment provided for herein shall be without representation or warranty by, or recourse to, Assignor.
SECTION 2. Payments. As consideration for the assignment and sale contemplated in Section 1 hereof, Assignee shall pay to Assignor on the date hereof, in immediately available funds, an amount equal to the outstanding principal amount under the Assigned Loan and Commitment recited in paragraph 4 of the Preliminary Statement above. Each of Assignor and Assignee hereby agrees that if it receives any amount under the Loan Agreement which is for the account of the other party hereto, it shall receive the same for the account of such other party to the extent of such other party’s interest therein and shall promptly pay the same to such other party.
SECTION 3. Consents; Execution and Delivery of Note. This Agreement is conditioned upon the consent of Administrative Agent pursuant to Section 11.15 of the Loan Agreement. The execution of this Agreement by Borrower (if required) and Administrative Agent is evidence of this consent. Pursuant to Section 11.15 of the Loan Agreement, Borrower has agreed to execute and deliver Notes payable to the respective orders of Assignee and Assignor to evidence the assignment and assumption provided for herein. Assignee has designated as its Lending Office, and as its address for notices, the office identified as such below.
SECTION 4. Non-Reliance on Assignor. Assignor makes no representation or warranty in connection with, and shall have no responsibility with respect to, the solvency, financial condition, or statements of Borrower or any other party to any Loan Document, or the validity and enforceability of the obligations of Borrower or any other party to a Loan Document in respect of the Loan Agreement or any other Loan Document. Assignee acknowledges that it has, independently and without reliance on Assignor, and based on such documents and information as it has deemed appropriate, made its own analysis of the collateral for the Loan, credit analysis of the Loan Parties and decision to enter into this Agreement and will continue to be responsible for making its own independent appraisal of the collateral for the Loan and of the business, affairs and financial condition of Borrower and the other parties to the Loan Documents.
SECTION 5. Governing Law. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of New York (without giving effect to New York’s principles of conflicts of law).
SECTION 6. Counterparts. This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.
SECTION 7. Certain Representations and Agreements by Assignee. Assignee represents that it is legally authorized to enter into and perform this Agreement. In addition, Assignee hereby represents that it is entitled to receive any payments to be made to it under the Loan Agreement or hereunder without the withholding of any tax and agrees to furnish the evidence of such exemption as specified therein and otherwise to comply with the provisions of Section 2.5(c) of the Loan Agreement.
Exh. B-2-
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed and delivered by their duly authorized officers as of the date first above written.
[NAME OF ASSIGNOR]
By: _______________________
Name:
Title: President
By: _______________________
Name:
Title: President
[NAME OF ASSIGNEE]
By: _______________________
Name:
Title:
By: _______________________
Name:
Title:
Assignee’s Applicable Lending Office and Address for Notices
[Assignee]
[Address]
Attention:________________________
Telephone: (___) ____________________
_______________________
Name:
Title:
[NAME OF ADMINISTRATIVE AGENT]
By: _______________________
Name:
Title:
Exh. B-4-
EXHIBIT C
INDIVIDUAL LOAN COMMITMENT/PRO RATA SHARE
LENDER |
INDIVIDUAL LOAN COMMITMENT |
PRO RATA SHARE |
WELLS FARGO BANK, NATIONAL ASSOCIATION |
$83,333,333.34 |
33.333333% |
ROYAL BANK OF CANADA |
$83,333,333.33 |
33.333333% |
CRÉDIT AGRICOLE CORPORATE & INVESTMENT BANK |
$83,333,333.33 |
33.333333% |
EXHIBIT D
FORM OF NOTE
Wells Fargo Loan No. 33-0911464
PROMISSORY NOTE
$______________
New York, New York
________, ____
FOR VALUE RECEIVED ALEXANDER’S KINGS PLAZA, LLC, KINGS PARKING, LLC, and ALEXANDER’S OF KINGS, LLC, each a Delaware limited liability company, each having its principal place of business at c/o Alexander’s Inc., 210 Route 4 East, Paramus, New Jersey 07652 (individually or collectively (as the context may require) herein referred to as “Borrower”) hereby unconditionally promises to pay to the order of __________________ (together with its successors and/or assigns, “Bank”), having an address at _________________, or at such other place as the holder hereof may from time to time designate in writing for the account of Bank’s Lending Office, the principal sum of _________________ ($___________), 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 Note at the Interest Rate, and to be paid in accordance with the terms of this Note and that certain Loan Agreement, dated as of the date hereof, between Borrower, the lenders named therein, as Lenders and Wells Fargo Bank, National Association, as administrative agent (“Administrative Agent”) for the benefit of Lenders (as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time, the “Loan Agreement”). All capitalized terms not defined herein shall have the respective meanings set forth in the Loan Agreement.
Borrower 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 specified in Article II of the 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.
The Debt shall without notice become immediately due and payable at the option of Bank if any payment required in this Note is not paid on or prior to the date when due (or, if the Loan Agreement provides for any notice or cure periods in respect of such payment, on or prior to the expiration of such notice or cure periods) or if not paid on the Maturity Date or on the happening of any other Event of Default.
This Note is secured by the Security Instrument and the other Loan Documents. All of the terms, covenants and conditions contained in the Loan Agreement, the Security Instrument and the other 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 Loan Agreement, the terms and provisions of the Loan Agreement shall govern.
Notwithstanding anything to the contrary, (a) all agreements and communications between Borrower and Bank 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 Bank shall never exceed the Maximum Legal Rate, (b) in calculating whether any interest exceeds the Maximum Legal Rate, all such interest shall be amortized, prorated, allocated and spread over the full amount and term of all principal indebtedness of Borrower to Bank, and (c) if through any contingency or event, Bank 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 Bank, or if there is no such indebtedness, shall immediately be returned to Borrower.
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, Administrative Agent or Bank, 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.
-2-
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 Loan Agreement or the other Loan Documents made by agreement between Administrative Agent, Bank 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 Loan Agreement or the other 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 Administrative Agent or Bank to take further action without further notice or demand as provided for in this Note, the Loan Agreement or the other 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 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 Loan Agreement, the Security Instrument or any other Loan Document.
Upon the transfer of this Note, Borrower hereby waiving notice of any such transfer, Bank may deliver all the collateral mortgaged, granted, pledged or assigned pursuant to the Loan Documents, or any part thereof, to the transferee who shall thereupon become vested with all the rights herein or under applicable law given to Bank with respect thereto, and Bank shall thereafter forever be relieved and fully discharged from any liability or responsibility in the matter; but Bank shall retain all rights hereby given to it with respect to any liabilities and the collateral not so transferred.
-3-
The provisions of Article XIII of the Loan Agreement are hereby incorporated by reference into this Note to the same extent and with the same force as if fully set forth herein.
This Note shall be governed, construed, applied and enforced in accordance with the laws of the State and the Applicable Laws of the United States of America.
All notices or other written communications hereunder shall be delivered in accordance with Article XIV of the Loan Agreement.
If Borrower consists of more than one Person or party, the obligations and liabilities of each Person or party shall be joint and several.
[NO FURTHER TEXT ON THIS PAGE]
-4-
IN WITNESS WHEREOF, Borrower has duly executed this Note as of the day and year first above written.
BORROWER:
ALEXANDER’S OF KINGS, LLC, a Delaware limited liability company
By: _______________________
Name:
Title:
KINGS PARKING, LLC, a Delaware limited liability company
By: _______________________
Name:
Title:
ALEXANDER’S KINGS PLAZA, LLC, a Delaware limited liability company
By:
Name:
Title:
EXHIBIT E
TRANSFER AUTHORIZER DESIGNATION
(For Disbursement of Loan Proceeds and Reserve Funds by Funds Transfer)
NEW REPLACE PREVIOUS DESIGNATION ADD CHANGE DELETE LINE NUMBER _____
The following representatives of [NAME OF BORROWER] (“Borrower”) are authorized to request the disbursement of the proceeds of the Loan on the Closing Date (as defined in the Loan Agreement (defined herein)) and any Reserve Funds (as defined in the Loan Agreement) in accordance with the terms of the Loan Agreement and initiate such funds transfers for Loan Number 33-0911464 assigned to that certain mortgage loan evidenced by that certain Loan Agreement dated June 10, 2011 among Borrower, each of the financial institutions initially a signatory thereto together with their permitted assignees (the “Lenders”), Wells Fargo Bank, National Association, as the administrative agent for the Lenders (the “Administrative Agent”) and the other parties thereto (the “Loan Agreement”). The Administrative Agent is authorized to rely on this Transfer Authorizer Designation until it has received a new Transfer Authorizer Designation signed by Borrower, even in the event that any or all of the foregoing information may have changed.
|
Name |
Title |
1. |
|
|
2. |
|
|
3. |
|
|
4. |
|
|
5. |
|
|
[Continued on next page]
Beneficiary Bank and Account Holder Information |
1.
Transfer Funds to (Receiving Party Account Name): | |
Receiving Party Account Number: | |
Receiving Bank Name, City and State:
|
Receiving Bank Routing (ABA) Number |
Maximum Transfer Amount: | |
Further Credit Information/Instructions: |
2.
Transfer Funds to (Receiving Party Account Name): | |
Receiving Party Account Number: | |
Receiving Bank Name, City and State:
|
Receiving Bank Routing (ABA) Number |
Maximum Transfer Amount: | |
Further Credit Information/Instructions: |
3.
Transfer Funds to (Receiving Party Account Name): | |
Receiving Party Account Number: | |
Receiving Bank Name, City and State:
|
Receiving Bank Routing (ABA) Number |
Maximum Transfer Amount: | |
Further Credit Information/Instructions: |
Exh. E-2-
Date: ___________, 20__
“BORROWER”
[NAME OF BORROWER],
a _____________________________
By: _____________________________
Name:
Title:
Exh. E-3-
EXHIBIT F
COLLATERAL ASSIGNMENT OF
INTEREST RATE PROTECTION AGREEMENT
[NOTE: CHANGES MAY BE NECESSARY IF AGREEMENT IS AN INTEREST RATE SWAP ENTERED INTO BY GUARANTOR]
COLLATERAL ASSIGNMENT OF INTEREST RATE PROTECTION AGREEMENT, dated as of the [____] day of [_________], 20[__] (this “Assignment”), made by ALEXANDER’S OF KINGS, LLC, KINGS PARKING, LLC AND ALEXANDER’S KINGS PLAZA, LLC, each having an address at c/o Alexander’s Inc., 210 Route 4 East, Paramus, New Jersey 07652 (individually and/or collectively (as the context may require) referred to herein as “Borrower”) in favor of WELLS FARGO BANK, NATIONAL ASSOCIATION, having its principal place of business at Wells Fargo Center, 1901 Harrison Street, 2nd Floor, Oakland California 94612, as administrative agent for the ratable benefit of Lenders (as defined in the Loan Agreement (hereinafter defined)) (in such capacity, together with its successors and/or assigns in such capacity, “Administrative Agent”).
Lenders have made a first mortgage loan to Borrower (the “Loan”), which Loan is (i) secured by, among other things, that certain mortgage, dated as of June 10, 2011 (together with any and all extensions, renewals, substitutions, replacements, amendments, modifications and/or restatements thereof, collectively, the “Security Instrument”), which grants Administrative Agent, for the benefit of Lenders, a first priority lien on the property encumbered thereby (the “Property”); (ii) evidenced by those certain promissory notes from Borrower, dated as of June 10, 2011, in the aggregate principal amount of $250,000,000.00 (as each of the same may hereafter be amended, modified, extended, severed, assigned, renewed or restated, and including any substitute or replacement notes executed pursuant to the Loan Agreement, individually and/or collectively (as the context requires), the “Note”); and (iii) made pursuant to that certain Loan Agreement, dated as of June 10, 2011 among Borrower, the lenders named therein, as Lenders and Administrative Agent, as administrative agent for the benefit of Lenders (as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time, the “Loan Agreement”; the Security Instrument, the Note, the Loan Agreement and any and all documents or instruments now or hereafter executed in connection with the Loan are collectively herein referred to as the “Loan Documents”). All capitalized terms not defined herein shall have the respective meanings set forth in the Loan Agreement.
Borrower agrees, as set forth herein, that Borrower shall assign as additional security for the payment of the Loan and the observance and performance by Borrower of the terms, covenants and conditions of the Note, the Security Instrument, the Loan Agreement and the other Loan Documents on the part of Borrower to be observed and performed, all of Borrower’s right, title and interest in and to all payments to be made to Borrower pursuant to the Interest Rate Protection Agreement (as defined herein).
AGREEMENT:
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by Borrower, the parties hereto agree as follows:
2
3
4
5
[NO FURTHER TEXT ON THIS PAGE]
6
IN WITNESS WHEREOF, Borrower and Administrative Agent have duly executed this Collateral Assignment of Interest Rate Protection Agreement on the day and year first written above.
BORROWER:
ALEXANDER’S OF KINGS, LLC, a Delaware
limited liability company
By: _______________________
Name:
Title:
KINGS PARKING, LLC, a Delaware limited
liability company
By: _______________________
Name:
Title:
ALEXANDER’S
KINGS PLAZA, LLC,
a Delaware limited liability company
By:_________________________
Name:
Title:
ADMINISTRATIVE AGENT:
WELLS FARGO BANK, NATIONAL
ASSOCIATION, as administrative agent for
the benefit of Lenders
By:____________________________________
Name:
Title:
THE UNDERSIGNED HEREBY ACKNOWLEDGES RECEIPT OF NOTICE OF THE FOREGOING ASSIGNMENT AND CONSENTS THERETO AND AGREES THAT THE UNDERSIGNED SHALL CAUSE ALL PAYMENTS REQUIRED TO BE MADE BY THE UNDERSIGNED PURSUANT TO THE TERMS OF THE INTEREST RATE PROTECTION AGREEMENT TO BE MADE DIRECTLY TO THE RESTRICTED ACCOUNT IN ACCORDANCE WITH WRITTEN INSTRUCTIONS (BUT SUBJECT TO THE TERMS OF THE ASSIGNMENT) TO BE DELIVERED BY ADMINISTRATIVE AGENT, ITS SUCCESSORS AND/OR ASSIGNS, TO THE UNDERSIGNED AT THE ADDRESS SET FORTH BELOW. THE UNDERSIGNED FURTHER AGREES THAT ALL SUCH PAYMENTS SHALL BE MADE TO ADMINISTRATIVE AGENT WITHOUT SET‑OFF, DEFENSE OR COUNTERCLAIM, PROVIDED THAT, NOTHING HEREIN SHALL BE CONSTRUED TO WAIVE OR OTHERWISE LIMIT THE NETTING PROVISIONS CONTAINED IN SECTIONS 2(C) AND 6(E) OF THE INTEREST RATE PROTECTION AGREEMENT. THE UNDERSIGNED AGREES THAT IT SHALL NOT AMEND OR MODIFY THE INTEREST RATE PROTECTION AGREEMENT WITHOUT THE PRIOR WRITTEN CONSENT OF ADMINISTRATIVE AGENT, ITS SUCCESSORS AND/OR ASSIGNS.
COUNTERPARTY:
[_________________________]
By:____________________________________
Name:
Title:
Address:
EXHIBIT G
FORM OF NOTICE OF BORROWING
June 10, 2011
Wells Fargo Bank,
National Association
Wells Fargo Center
1901 Harrison Street, 2nd Floor
MAC A0227-020
Oakland, California 94612
Attention: Commercial Mortgage Servicing
Facsimile No.: (866) 359-5352
Ladies and Gentlemen:
Reference is made to that certain Loan Agreement dated as of June 10, 2011 (as amended, restated, supplemented or otherwise modified from time to time, the “Loan Agreement”), by and among ALEXANDER’S OF KINGS, LLC, KINGS PARKING, LLC AND ALEXANDER’S KINGS PLAZA, LLC (collectively, the “Borrower”), the financial institutions party thereto and their assignees (the “Lenders”), Wells Fargo Bank, National Association, as Administrative Agent (the “Administrative Agent”), and the other parties thereto. Capitalized terms used herein, and not otherwise defined herein, have their respective meanings given them in the Loan Agreement.
1. Borrower hereby requests that the Lenders make the Loan to the Borrower in an aggregate amount equal to $250,000,000.
2. Pursuant to Section 2.2 of the Loan Agreement, the Borrower hereby requests that the Loan consist of the following Tranches: [DELETE ANY TRANCHES THAT ARE UNNECESSARY]
Tranche 1:
LIBOR Loan in the amount of $_____________, with an initial Interest Accrual Period for a duration of:
[Check one box only]
o one month
o two months
o three months
Tranche 2:
LIBOR Loan in the amount of $_____________, with an initial Interest Accrual Period for a duration of:
[Check one box only]
o one month
o two months
o three months
Tranche 3:
LIBOR Loan in the amount of $_____________, with an initial Interest Accrual Period for a duration of:
[Check one box only]
o one month
o two months
o three months
Tranche 4:
LIBOR Loan in the amount of $_____________, with an initial Interest Accrual Period for a duration of:
[Check one box only]
o one month
o two months
o three months
Tranche 5:
LIBOR Loan in the amount of $_____________, with an initial Interest Accrual Period for a duration of:
[Check one box only]
o one month
o two months
o three months
BORROWER:
ALEXANDER’S OF KINGS, LLC, a Delaware limited liability company
By: _______________________
Name:
Title:
KINGS PARKING, LLC, a Delaware limited liability company
2
By: _______________________
Name:
Title:
ALEXANDER’S KINGS PLAZA, LLC, a Delaware limited liability company
By: _______________________
Name:
Title:
3
EXHIBIT H
FORM OF NOTICE OF CONTINUATION
[PER TRANCHE]
____________, 20__
Wells Fargo Bank,
National Association
Wells Fargo Center
1901 Harrison Street, 2nd Floor
MAC A0227-020
Oakland, California 94612
Attention: Commercial Mortgage Servicing
Facsimile No.: (866) 359-5352
Ladies and Gentlemen:
Reference is made to that certain Loan Agreement dated as of June 10, 2011 (as amended, restated, supplemented or otherwise modified from time to time, the “Loan Agreement”), by and among ALEXANDER’S OF KINGS, LLC, KINGS PARKING, LLC AND ALEXANDER’S KINGS PLAZA, LLC (collectively, the “Borrower”), the financial institutions party thereto and their assignees (the “Lenders”), Wells Fargo Bank, National Association, as Administrative Agent (the “Administrative Agent”), and the other parties thereto. Capitalized terms used herein, and not otherwise defined herein, have their respective meanings given them in the Loan Agreement.
Pursuant to Section 2.5(f) of the Loan Agreement, the Borrower hereby requests a Continuation of a Tranche pursuant to, and in accordance with, the Loan Agreement, and in that connection sets forth below the information relating to such Continuation as required by the Loan Agreement:
1. The requested date of such Continuation is ____________, 20__.
2. The aggregate principal amount of the Tranche subject to the requested Continuation is $________________________ .
3. The current Interest Accrual Period of the Tranche subject to such Continuation ends on ________________, 20__.
4. Pursuant to Section 2.5(f) of the Loan Agreement, the Borrower hereby requests that such Tranche be continued with the following Interest Accrual Periods: [NOTE: FILL OUT ONE NOTICE FOR EACH TRANCHE BEING CONTINUED; SHOULD ONLY HAVE MORE THAN ONE TRANCHE LISTED BELOW IF BORROWER IS SPLITTING AN EXISTING TRANCHE.]
1
Tranche 1:
Tranche in the amount of $_____________, with an Interest Accrual Period for a duration of:
[Check one box only]
o one month
o two months
o three months
Tranche 2:
LIBOR Loan in the amount of $_____________, with an Interest Accrual Period for a duration of:
[Check one box only]
o one month
o two months
o three months
Tranche 3:
LIBOR Loan in the amount of $_____________, with an Interest Accrual Period for a duration of:
[Check one box only]
o one month
o two months
o three months
Tranche 4:
LIBOR Loan in the amount of $_____________, with an Interest Accrual Period for a duration of:
[Check one box only]
o one month
o two months
o three months
Tranche 5:
LIBOR Loan in the amount of $_____________, with an Interest Accrual Period for a duration of:
[Check one box only]
o one month
o two months
o three months
[Continued on next page]
2
BORROWER:
ALEXANDER’S OF KINGS, LLC, a Delaware limited liability company
By: _______________________
Name:
Title:
KINGS PARKING, LLC, a Delaware limited liability company
By: _______________________
Name:
Title:
ALEXANDER’S KINGS PLAZA, LLC, a Delaware limited liability company
By: _______________________
Name:
Title:
3
EXHIBIT I
Drafted, drawn & prepared for or by,
Recording requested by, and
When recorded return to:
CADWALADER, WICKERSHAM & TAFT LLP
227 W. Trade Street, Suite 2400
Charlotte, NC 28202
Attention: James P. Carroll, Esq.
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
Parties to the Document:
TENANT: ____________________________________________________________
OWNER: ____________________________________________________________
[GUARANTOR: ___________________________________________________________ ]
AGENT: WELLS FARGO BANK, NATIONAL ASSOCIATION
Property: ____________________________________________________________
USActive 22886557.1
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
Tenant’s Trade Name: ____________________________________________________________
NOTICE: THIS SUBORDINATION AGREEMENT RESULTS IN YOUR LEASEHOLD ESTATE IN THE PROPERTY BECOMING SUBJECT TO AND OF LOWER PRIORITY THAN THE LIEN OF THE MORTGAGE (DEFINED BELOW).
This SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT (“Agreement”) is made as of May _____, 2011, by and between ______________________________, a ____________________ (“Tenant”), and WELLS FARGO BANK, NATIONAL ASSOCIATION as administrative agent (“Agent”) for itself in its individual capacity as a lender and the other co-lenders that may exist from time to time (together with Wells Fargo Bank, National Association in its individual capacity as a lender, collectively, “Lenders”), with reference to the following facts and intentions of the parties:
R E C I T A L S
1. ______________________________, a ____________________ (“Owner”) is or is about to become the owner of the land and improvements commonly known as ____________________ and more specifically described in Exhibit A attached hereto (“Property”) and the owner of the landlord’s interest in the Lease identified in Recital B below.
2. Tenant is the owner of the tenant’s interest in that lease dated _______________, which has been amended by instrument(s) dated _______________ and which was originally executed by ______________________________, as landlord, and by ______________________________, as tenant. (Said lease and the referenced amendment(s) thereto are collectively referred to herein as the “Lease”).
3. Owner, as borrower or as co-borrower with one or more other co-borrower(s), has applied to Lenders for a loan (“Loan”), which will be secured by, among other things, a mortgage, deed of trust, trust indenture, or deed to secure debt encumbering the Property (“Mortgage”) and an assignment of leases and rents (“Assignment of Leases”) covering the Property.
4. As a condition to making the Loan to Owner, Lenders have required that Tenant furnish certain assurances to, and make certain agreements with, Lenders, as set forth below. Tenant has agreed that the Lease shall be subject and subordinate to the Mortgage held by Agent for the ratable benefit of the Lenders, provided Tenant is assured of continued occupancy of the Property under the terms of the Lease as hereinafter provided.
THEREFORE, the parties agree as follows:
USActive 22886557.1
2
3
4
[INCLUDE IF LEASE CONTAINS PURCHASE OPTION]
5
[INCLUDE IF LEASE CONTAINS PREFERENTIAL RIGHT TO PURCHASE]
6
Owner: |
Tenant: |
Agent: |
[NAME OF LANDLORD HERE: |
[NAME OF TENANT |
Wells Fargo Bank, National
Association |
provided, however, any party shall have the right to change its address for notice hereunder by the giving of written notice thereof to the other party in the manner set forth in this Agreement.
7
8
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.
NOTICE: THIS AGREEMENT CONTAINS A PROVISION WHICH ALLOWS THE OWNER TO OBTAIN A LOAN, THE PROCEEDS OF WHICH MAY BE EXPENDED FOR PURPOSES OTHER THAN THE IMPROVEMENT OF THE PROPERTY.
AGENT:
WELLS FARGO BANK, NATIONAL ASSOCIATION
By:____________________________________
Name:_________________________________
[Authorized Signor]
[Revise State Form Notary per State Requirements (Where Property is Located) for Each Signature Block]
STATE OF ______________ §
§
COUNTY OF ____________ §
The foregoing instrument was acknowledged before me on __________, 20__, by ______________________, as Authorized Signor of WELLS FARGO BANK, NATIONAL ASSOCIATION, on behalf of said national association.
Given under my hand and official seal, this ____ day of ____________, 20__.
_______________________________________
NOTARY PUBLIC
My Appointment Expires: [Notarial Seal]
_____________________
10
TENANT:
______________________________________,
a _____________________________________
By:____________________________________
Name:_________________________________
Title:__________________________________
[Revise State Form Notary per State Requirements (Where Property is Located) for Each Signature Block]
STATE OF ______________ §
§
COUNTY OF ____________ §
The foregoing instrument was acknowledged before me on __________, 20__, by ______________________, the ___________________ of ______________________________, a ____________________, on behalf of said ____________.
_______________________________________
NOTARY PUBLIC, State of_______________
Printed Name:___________________________
My Appointment Expires:__________________
[Notary Seal]
IT IS RECOMMENDED THAT, PRIOR TO THE EXECUTION OF THIS AGREEMENT, THE PARTIES CONSULT WITH THEIR ATTORNEYS WITH RESPECT HERETO.
11
OWNER’S CONSENT
The undersigned, which owns or is about to acquire the Property and the landlord’s interest in the Lease, hereby consents to the execution of the foregoing SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT, and to implementation of the agreements and transactions provided for there-in.
OWNER:
______________________________________,
a _____________________________________
By:____________________________________
Name:_________________________________
Title:__________________________________
[Revise State Form Notary per State Requirements (Where Property is Located) for Each Signature Block]
STATE OF ______________ §
§
COUNTY OF ____________ §
The foregoing instrument was acknowledged before me on __________, 20__, by ______________________, the ___________________ of ______________________________, a ____________________, on behalf of said ____________.
_______________________________________
NOTARY PUBLIC, State of_______________
Printed Name:___________________________
My Appointment Expires:__________________
[Notary Seal]
12
LEASE GUARANTOR’S CONSENT
[OPTIONAL: FOR USE WHERE LEASE GUARANTOR HAS EXECUTED A SEPARATE GUARANTY]
[The undersigned (“Lease Guarantor”) hereby: (a) consents to the foregoing SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT, and to the transactions contemplated thereby; (b) reaffirms its obligations under the Lease Guaranty (“Lease Guaranty”) dated _____________ and acknowledges the same to be in full force and effect; and (c) acknowledges and approves the assignment to Agent of the Lease Guaranty. Lease Guarantor further reaffirms that its obligations under the Lease Guaranty are separate and distinct from Tenant’s obligations under the Lease.]
[OPTIONAL: FOR USE WHERE LEASE GUARANTOR EXECUTED THE LEASE UNDER A SIMPLE LEGEND READING “GUARANTOR”, “LEASE GUARANTIED” OR WORDS OF LIKE IMPORT, WITH NO FURTHER OR ADDITIONAL PROVISIONS ELABORATING UPON THE NATURE AND EXTENT OF THE GUARANTY OR THE OBLIGATIONS TO WHICH IT IS INTENDED TO APPLY]
[The undersigned (“Lease Guarantor”) hereby: (a) consents to the foregoing SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT, and to the transactions contemplated thereby; (b) acknowledges to Agent that by its separate execution of the Lease, the undersigned intended to and did give a guaranty (“Lease Guaranty”) of the due and timely performance by Tenant of each and every obligation undertaken in the Lease by Tenant; (c) acknowledges and approves the assignment to Agent for the ratable benefit of Lenders of the Lease Guaranty; and (d) reaffirms its obligations under the Lease Guaranty and acknowledges the same to be in full force and effect. Lease Guarantor further reaffirms that its obligations under the Lease Guaranty are separate and distinct from Tenant’s obligations under the Lease.]
AGREED:
Dated: ______________, 20__
LEASE GUARANTOR:
______________________________________,
a _____________________________________
By:____________________________________
Name:_________________________________
Title:__________________________________
13
[Revise State Form Notary per State Requirements (Where Property is Located) for Each Signature Block]
STATE OF ______________ §
§
COUNTY OF ____________ §
The foregoing instrument was acknowledged before me on __________, 20__, by ______________________, the ___________________ of ______________________________, a ____________________, on behalf of said ____________.
_______________________________________
NOTARY PUBLIC, State of_______________
Printed Name:___________________________
My Appointment Expires:__________________
[Notary Seal]
14
EXHIBIT A
PROPERTY/ADDRESS INFORMATION
Property Address: ______
LEGAL DESCRIPTION OF LAND
[Attached]
15
EXHIBIT J
FORM OF SECTION 2.5(c)(v) CERTIFICATE
Reference is hereby made to the AGREEMENT, dated as of [__], 20[__], between Alexander’s of Kings, LLC, Kings Parking, LLC, and Alexander’s Kings Plaza, LLC, individually or collectively, as the context may require, (the “Borrower”), Wells Fargo Bank, National Association, as administrative agent (“Agent”)and [___________] (the “Lender”) (the “Agreement”). Pursuant to the provisions of Section 2.5(c)(v) of the Agreement, the undersigned hereby certifies that:
5. It is a ___ natural individual person, ____ treated as a corporation for U.S. federal income tax purposes, ____ disregarded for federal income tax purposes (in which case a copy of this Section 2.5(c)(v) Certificate is attached in respect of its sole beneficial owner), or ____ treated as a partnership for U.S. federal income tax purposes (one must be checked).
6. It is the beneficial owner of amounts received pursuant to the Agreement.
7. It is not a bank, as such term is used in Section 881(c)(3)(A) of the Internal Revenue Code of 1986, as amended (the “Code”), or the Agreement is not, with respect to the undersigned, a loan agreement entered into in the ordinary course of its trade or business, within the meaning of such section.
8. It is not a 10-percent shareholder of Borrower within the meaning of Section 871(h)(3) or 881(c)(3)(B) of the Code.
9. It is not a controlled foreign corporation that is related to Borrower within the meaning of Section 881(c)(3)(C) of the Code.
10. Amounts paid to it under the Agreement and the other Loan Documents (as defined in the Agreement) are not effectively connected with its conduct of a trade or business in the United States.
[NAME OF UNDERSIGNED]
By: ________________________
Title: _______________________
Date: _______________, ______
EXHIBIT 10.58
Wells Fargo Loan No. 33-0911464
CONSOLIDATED, AMENDED AND RESTATED PROMISSORY NOTE
$250,000,000.00
New York, New York
June 10, 2011
FOR VALUE RECEIVED ALEXANDER’S KINGS PLAZA, LLC, KINGS PARKING, LLC, and ALEXANDER’S OF KINGS, LLC, each a Delaware limited liability company, each having its principal place of business at c/o Alexander’s Inc., 210 Route 4 East, Paramus, New Jersey 07652 (individually or collectively (as the context may require) herein referred to as “Borrower”) hereby unconditionally promises to pay to the order of WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association, having an address at Wells Fargo Center, 1901 Harrison Street, 2nd Floor, Oakland California 94612 (“Wells”), ROYAL BANK OF CANADA, a Canadian chartered bank having an address at Three World Financial Center, 12th Floor, 200 Vesey Street, New York, New York 10281-8098 (“RBC”), and CRÉDIT AGRICOLE CORPORATE & INVESTMENT BANK, a banking corporation, organized and existing under the laws of France, having an address at 1301 Avenue of the Americas, 18th Floor, New York, New York 10019 (“Credit Agricole”, and together with Wells and RBC, and their respective successors and assigns, individually or collectively, as the context may require “Lender”) the principal sum of TWO HUNDRED FIFTY MILLION AND NO/100 DOLLARS ($250,000,000.00), 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 Note at the Interest Rate, and to be paid in accordance with the terms of this Note and that certain Loan Agreement, dated as of the date hereof, between Borrower, Lenders and Wells, as administrative agent (in such capacity, the “Agent”) for the benefit of Lenders (as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time, the “Loan Agreement”). All capitalized terms not defined herein shall have the respective meanings set forth in the Loan Agreement.
This Note is intended to consolidate, amend and restate in their entirety those certain promissory notes (collectively, the “Existing Notes”) described on Schedule 1 attached hereto and made a part hereof, which Existing Notes are now held by Administrative Agent on behalf of the Lenders; this Note is not intended to create any new indebtedness or to constitute a novation as to Borrower’s obligations under the Existing Notes.
Borrower 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 specified in Article II of the 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.
The Debt shall without notice become immediately due and payable at the option of Agent if any payment required in this Note is not paid on or prior to the date when due (or, if the Loan Agreement provides for any notice or cure periods in respect of such payment, on or prior to the expiration of such notice or cure periods) or if not paid on the Maturity Date or on the happening of any other Event of Default.
This Note is secured by the Security Instrument and the other Loan Documents. All of the terms, covenants and conditions contained in the Loan Agreement, the Security Instrument and the other 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 Loan Agreement, the terms and provisions of the Loan Agreement shall govern.
Notwithstanding anything to the contrary, (a) all agreements and communications between Borrower and Agent 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 Agent shall never exceed the Maximum Legal Rate, (b) in calculating whether any interest exceeds the Maximum Legal Rate, all such interest shall be amortized, prorated, allocated and spread over the full amount and term of all principal indebtedness of Borrower to Agent, and (c) if through any contingency or event, Agent 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 Agent, or if there is no such indebtedness, shall immediately be returned to Borrower.
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, Agent 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.
2
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 Loan Agreement or the other Loan Documents made by agreement between Agent, 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 Loan Agreement or the other 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 Agent or Lender to take further action without further notice or demand as provided for in this Note, the Loan Agreement or the other 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 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 Loan Agreement, the Security Instrument or any other Loan Document.
Upon the transfer of this Note, Borrower hereby waiving notice of any such transfer, Agent may deliver all the collateral mortgaged, granted, pledged or assigned pursuant to the Loan Documents, or any part thereof, to the transferee who shall thereupon become vested with all the rights herein or under applicable law given to Agent with respect thereto, and Agent shall thereafter forever be relieved and fully discharged from any liability or responsibility in the matter; but Agent shall retain all rights hereby given to it with respect to any liabilities and the collateral not so transferred.
3
The provisions of Article XIII of the Loan Agreement are hereby incorporated by reference into this Note to the same extent and with the same force as if fully set forth herein.
This Note shall be governed, construed, applied and enforced in accordance with the laws of the State and the Applicable Laws of the United States of America.
All notices or other written communications hereunder shall be delivered in accordance with Article XIV of the Loan Agreement.
If Borrower consists of more than one Person or party, the obligations and liabilities of each Person or party shall be joint and several.
[NO FURTHER TEXT ON THIS PAGE]
4
IN WITNESS WHEREOF, Borrower has duly executed this Note as of the day and year first above written.
BORROWER:
ALEXANDER’S OF KINGS, LLC, a Delaware
limited liability company
By: |
/s/ Alan J. Rice |
Name: |
Alan J. Rice |
Title: |
Secretary |
KINGS PARKING, LLC, a Delaware limited
liability company
By: |
/s/ Alan J. Rice |
Name: |
Alan J. Rice |
Title: |
Secretary |
ALEXANDER’S KINGS PLAZA, LLC, a
Delaware limited liability company
By: |
/s/ Alan J. Rice |
Name: |
Alan J. Rice |
Title: |
Secretary |
LENDER:
WELLS FARGO BANK, NATIONAL
ASSOCIATION
By: |
/s/ John G. Nicol |
Name: |
John G. Nicol |
Title: |
Director |
LENDER:
ROYAL BANK OF CANADA, a Canadian
chartered bank
By: |
/s/ G. David Cole |
Name: |
G. David Cole |
Title: |
Authorized Signatory |
LENDER:
CRÉDIT AGRICOLE CORPORATE &
INVESTMENT BANK, a banking corporation
organized and existing under the laws of France
By: |
/s/ Daniel J. Reddy |
Name: |
Daniel J. Reddy |
Title: |
Director |
By: |
/s/ Paul T. Ragusin |
Name: |
Paul T. Ragusin |
Title: |
Director |
2
Schedule 1
Existing Notes
TERM LOAN NOTES
1. Note dated March 12, 1999 in the amount of $15,000,000 made by Alexander’s Kings Plaza Center, Inc., Kings Plaza Corp. and Alexander’s Department Stores of Brooklyn, Inc. to Bayerische Landesbank, Cayman Islands Branch.
2. Note dated July 2, 1999 in the amount of $18,750,000 made by Alexander’s Kings Plaza Center, Inc., Kings Plaza Corp. and Alexander’s Department Stores of Brooklyn, inc. to Bayerische Hypo-Und Vereinsbank AG, New York Branch.
3. Note dated July 2, 1999 in the amount of $7,500,000 made by Alexander’s Kings Plaza Center, Inc., Kings Plaza Corp. and Alexander’s Department Stores of Brooklyn, Inc. to Comerica Bank.
4. Note dated July 2, 1999 in the amount of $24,375,000 made by Alexander’s Kings Plaza Center, Inc., Kings Plaza Corp. and Alexander’s Department Stores of Brooklyn, Inc. to The Bank of New York.
5. Note dated July 2, 1999 in the amount of $24,375,000 made by Alexander’s Kings Plaza Center, Inc., Kings Plaza Corp. and Alexander’s Department Stores of Brooklyn, Inc. to UBS AG, Stamford Branch.
BUILDING LOAN NOTES
6. Building Loan Note dated August 9, 1999 in the amount of $5,299,612.50 made by Alexander’s Kings Plaza Center, Inc., Kings Plaza Corp. and Alexander’s Department Stores of Brooklyn, Inc. to UBS AG, Stamford Branch.
7. Building Loan Note dated August 9, 1999 in the amount of $4,076,625.00 made by Alexander’s Kings Plaza Center, Inc., Kings Plaza Corp. and Alexander’s Department Stores of Brooklyn, Inc. to Bayerische Hypo-Und Vereinsbank AG, New York Branch.
8. Building Loan Note dated August 9, 1999 in the amount of $3,261,300.00 made by Alexander’s Kings Plaza Center, Inc., Kings Plaza Corp. and Alexander’s Department Stores of Brooklyn, Inc. to Bayerische Landesbank, Cayman Islands Branch.
9. Building Loan Note dated August 9, 1999 in the amount of $1,630,650.00 made by Alexander’s Kings Plaza Center, Inc., Kings Plaza Corp. and Alexander’s Department Stores of Brooklyn, Inc. to Comerica Bank.
10. Building Loan Note dated August 9, 1999 in the amount of $5,299,612.50 made by Alexander’s Kings Plaza Center, Inc., Kings Plaza Corp. and Alexander’s Department Stores of Brooklyn, Inc. to UBS AG, Stamford Branch.
Notes 6 to 10 are secured by a Building Loan Fee and Leasehold Mortgage, Assignment of Leases and Rents and Security Agreement, dated as of August 9, 1999 in the amount of $19,567,800.00, among Alexander’s King Plaza Center, Inc., Kings Plaza Corp., Alexander’s Department Stores of Brooklyn, Inc. and UBS AG, Stamford Branch, as administrative agent for lenders, recorded on September 17, 1999 in Reel 4587 page 956.
PROJECT LOAN NOTES
11. Project Loan Note dated August 9, 1999 in the amount of $2,825,387.50 made by Alexander’s Kings Plaza Center, Inc., Kings Plaza Corp. and Alexander’s Department Stores of Brooklyn, Inc. to UBS AG, Stamford Branch.
12. Project Loan Note dated August 9, 1999 in the amount of $2,825,387.50 made by Alexander’s Kings Plaza Center, Inc., Kings Plaza Corp. and Alexander’s Department Stores of Brooklyn, Inc. to The Bank of New York.
13. Project Loan Note dated August 9, 1999 in the amount of $1,738,700.00 made by Alexander’s Kings Plaza Center, Inc., Kings Plaza Corp. and Alexander’s Department Stores of Brooklyn, Inc. to Bayerische Landesbank, Cayman Islands Branch.
14. Project Loan Note dated August 9, 1999 in the amount of $2,173,375.00 made by Alexander’s Kings Plaza Center, Inc., Kings Plaza Corp. and Alexander’s Department Stores of Brooklyn, Inc. to Bayerische Hypo-Und Vereinsbank AG, New York Branch.
2
Wells Fargo Loan No. 33-0911464
EXHIBIT 10.59
ALEXANDER’S OF KINGS, LLC,
KINGS PARKING, LLC, and
ALEXANDER’S KINGS PLAZA, LLC
individually or collectively, as the context may require, as mortgagor
to
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as administrative agent for the benefit of Lenders (as defined in the Loan Agreement (hereinafter defined)), as mortgagee
CONSOLIDATED, AMENDED AND RESTATED FEE AND LEASEHOLD MORTGAGE, ASSIGNMENT OF LEASES AND RENTS AND SECURITY AGREEMENT
Lot: Part of Lots 55 and 1
Lots 50 & 114
Block: 8470
County: Kings
PREPARED BY AND UPON
RECORDATION RETURN TO:
Cadwalader, Wickersham & Taft LLP
227 West Trade Street, Suite 2400
Charlotte, North Carolina 28202
Attention: James P. Carroll, Esq.
USActive 23005986.7
THIS CONSOLIDATED, AMENDED AND RESTATED FEE AND LEASEHOLD MORTGAGE, ASSIGNMENT OF LEASES AND RENTS AND SECURITY AGREEMENT (this “Security Instrument”) is made as of this 10th day of June, 2011, by ALEXANDER’S OF KINGS, LLC, KINGS PARKING, LLC, and ALEXANDER’S KINGS PLAZA, LLC, each a Delaware limited liability company, and each having its principal place of business at c/o Alexander’s Inc., 210 Route 4 East, Paramus New Jersey 07652 (individually and/or collectively (as the context may require) referred to herein as “Borrower”), as mortgagor for the benefit of WELLS FARGO BANK, NATIONAL ASSOCIATION, as administrative agent for the benefit of Lenders (in such capacity, together with its successors and/or assigns, in such capacity “Mortgagee”), as mortgagee for the ratable benefit of the Lenders.
This Security Instrument consolidates, amends and restates in their entirety the mortgages described on the Schedule of Mortgages attached hereto as Exhibit B and made a part hereof which are each now held by Mortgagee (collectively, the “Prior Mortgages”), to form a single lien in the consolidated principal sum of $250,000,000.00;
RECITALS:
WHEREAS, this Security Instrument is given to Mortgagee, to secure a certain loan (the “Loan”) advanced pursuant to that certain Loan Agreement among Borrower, the lenders named therein, as Lenders and Mortgagee, as administrative agent for the benefit of Lenders (as the same may have been or may be amended, restated, replaced, supplemented or otherwise modified from time to time, the “Loan Agreement”), which such Loan is evidenced by those certain Promissory Notes from Borrower, dated as of the date hereof, in the aggregate principal amount of $250,000,000.00 (as each of the same may hereafter be amended, modified, extended, severed, assigned, renewed or restated, and including any substitute or replacement notes executed pursuant to the Loan Agreement, individually and/or collectively (as the context requires), the “Note”);
WHEREAS, Borrower desires to secure the payment of the outstanding principal amount set forth in, and evidenced by, the Loan Agreement and the Note together with all interest accrued and unpaid thereon and all other sums due to Mortgagee and Lenders in respect of the Loan under the Note, the Loan Agreement, this Security Instrument or any of the other Loan Documents (defined below) (collectively, the “Debt”) and the performance of all of the obligations due under the Note, the Loan Agreement and all other documents, agreements and certificates executed and/or delivered in connection with the Loan (as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time, collectively, the “Loan Documents”); and
WHEREAS, this Security Instrument is given pursuant to the Loan Agreement, and payment, fulfillment, and performance of the obligations due thereunder and under the other Loan Documents are secured hereby in accordance with the terms hereof.
NOW, THEREFORE, in consideration of the foregoing recitals, which are incorporated into the operative provisions of this Security Instrument by this reference, and for other good and valuable consideration, the receipt and adequacy of which are hereby conclusively acknowledged, Borrower and Mortgagee hereby agree as follows:
A. Defined Terms. Capitalized terms used herein without definition shall have the meanings ascribed to such terms in the Loan Agreement.
B. Consolidation. The Prior Mortgages and the liens thereof are hereby consolidated to form this Security Instrument and a single lien over the Property and the Improvements (as hereinafter defined), which Property includes all of the right, title, interest and estate of the Borrower, now owned, or hereafter acquired therein.
C. Amendment and Restatement. The Prior Mortgages as hereby consolidated are completely amended and restated in their entirety by this Security Instrument.
2
3
4
5
6
Borrower covenants and agrees that:
7
8
9
10
In the event of a sale, by foreclosure, power of sale or otherwise, of less than all of Property, this Security Instrument shall continue as a lien and security interest on the remaining portion of the Property unimpaired and without loss of priority. Notwithstanding the provisions of this Section to the contrary, if any Event of Default as described in Section 10.1(f) of the Loan Agreement shall occur, the entire unpaid Debt shall be automatically due and payable, without any further notice, demand or other action by Mortgagee or Lenders.
11
12
13
14
PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY BORROWER, MORTGAGEE AND LENDERS.
15
16
notwithstanding the union of such estates in Borrower, Ground Lessor or in any other Person by purchase, operation of law or otherwise. Mortgagee reserves the right, at any time, to release portions of the Property, including, but not limited to, the Leasehold Estate, with or without consideration, at Mortgagee’s election, without waiving or affecting any of its rights hereunder or under the Note or the other Loan Documents and any such release shall not affect Mortgagee’s rights in connection with the portion of the Property not so released.
17
(a) Commercial Property. Mortgagor represents that this Mortgage does not encumber real property principally improved or to be improved by one or more structures containing in the aggregate more than six (6) residential dwelling units, each having its own separate cooking facilities.
(b) Insurance Proceeds. In the event of any conflict, inconsistency or ambiguity between (i) the provisions of the Note, this Mortgage or the other Loan Documents and (ii) the provisions of subsection 4 of Section 254 of the Real Property Law of New York covering the insurance of buildings against loss by fire, the provisions of the Note, this Mortgage and the other Loan Documents shall control.
18
(c) Trust Fund. Pursuant to Section 13 of the Lien Law of New York, Mortgagor shall receive the advances secured hereby and shall hold the right to receive such advances as a trust fund to be applied first for the purpose of paying the cost of any improvement of the Property and shall apply such advances first to the payment of the cost of any such improvement of the Property before using any part of the total of the same for any other purpose.
(d) Section 291-f Agreement. This Mortgage is intended to be, and shall operate as, the agreement described in Section 291-f of the Real Property Law of the State of New York and shall be entitled to the benefits afforded thereby. Mortgagor hereby covenants and agrees that Mortgagor shall not, without the consent of Mortgagee, (i) amend, modify or waive the provisions of any Lease or terminate, reduce rents under or shorten the term of any Lease, except pursuant to and in accordance with the provisions of the Note, the Loan Agreement, this Mortgage and the other Loan Documents, or (ii) collect any Rents (exclusive of security deposits, Impositions and other pass-throughs of Operating Expenses) more than thirty (30) days in advance of the time when the same shall become due. Mortgagor shall (unless such notice is contained in the Lease) deliver notice of this Mortgage in form and substance reasonably acceptable to Mortgagee, to all present and future holders of any interest in any Lease, by assignment or otherwise, and shall take such other action as may now or hereafter be reasonably required to afford Mortgagee the full protections and benefits of such Section 291-f.
(e) Maximum Indebtedness. The maximum amount of principal indebtedness secured by this Mortgage at execution or which under any contingency may become secured hereby at any time hereafter is $250,000,000.00 plus all amounts expended by Mortgagee following an Event of Default hereunder in respect of insurance premiums and real estate taxes, and all legal costs or expenses required to protect and preserve the lien of this Mortgage.
(f) RPAPL. If a default shall occur hereunder or under any of the other Loan Documents and be continuing beyond any applicable notice, grace or cure period, Mortgagee may elect to sell the Property or any part thereof by exercise of the power of foreclosure or of sale granted to Mortgagee by Articles 13 or 14 of the New York Real Property Actions and Proceedings Law (the “RPAPL”). In such case, Mortgagee may commence a civil action to foreclose this Mortgage pursuant to and in accordance with Article 13 of the RPAPL, or it may proceed and sell the Property pursuant to and in accordance with Article 14 of the RPAPL.
[NO FURTHER TEXT ON THIS PAGE]
19
IN WITNESS WHEREOF, this Security Instrument has been executed by the undersigned as of the day and year first above written.
ALEXANDER’S OF KINGS, LLC, a Delaware
limited liability company
By: |
/s/ Alan J. Rice |
Name: |
Alan J. Rice |
Title: |
Secretary |
KINGS PARKING, LLC, a Delaware limited
liability company
By: |
/s/ Alan J. Rice |
Name: |
Alan J. Rice |
Title: |
Secretary |
ALEXANDER’S KINGS PLAZA, LLC, a
Delaware limited liability company
By: |
/s/ Alan J. Rice |
Name: |
Alan J. Rice |
Title: |
Secretary |
:
STATE OF New York )
) ss.:
COUNTY OF New York )
On this, the 7th day of June, 2011, before me, the undersigned, personally appeared Alan J. Rice, personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.
/s/ Margaret R. Hannay
(signature and office of individual taking acknowledgment)
EXHIBIT B
PRIOR MORTGAGES
1. Building Loan Mortgage made by Kings Plaza Shopping Center of Flatbush Avenue Inc., and Kings Plaza Shopping Center of Avenue U, Inc., to R.H. Macy & Co., Inc. and Alexander’s Inc. in the sum of $23,500,000.00 dated June 27, 1969 recorded June 30, 1969 in Reel 344 Page 153 (Mortgage Tax paid: $117,500.00).
Subordination Agreement made among R.H. Macy & Co., Inc., Alexander’s Inc., Flatbrook Properties Corp., Alexander’s Department Store of Brooklyn Inc., Kings Plaza Shopping Center of Flatbush Avenue, Inc. and Kings Plaza Shopping Center of Avenue U, Inc., dated June 9, 1970 recorded June 10, 1970 in Reel 416 Page 362. Subordinates Mortgage 1 to Construction, Operation and Reciprocal Easement Agreement in Reel 413 Page 171.
Assignment of Mortgage made by R.H Macy & Co., Inc and Alexander’s Inc. to The Chase Manhattan Bank (National Association) dated June 4, 1970 recorded June 10, 1970 in Reel 416 Page 377. Assigns Mortgage No. 1.
Modification Agreement made between Kings Plaza Shopping Center of Flatbush Avenue, Inc., Kings Plaza Shopping Center of Avenue U, Inc., and The Chase Manhattan Bank (National Association) dated June 9, 1970 recorded June 10, 1970 in Reel 416 Page 261. Modifies the terms of Mortgage No. 1
Assignment of Mortgage made by The Chase Manhattan Bank (National Association) to John Hancock Mutual Life Insurance Company dated January 20, 1971 recorded January 20, 1971 in Reel 460 Mp. 163. Assigns Mortgage No. 1.
Modification and Extension Agreement between Kings Plaza Shopping Center of Flatbush Avenue, Inc., Kings Shopping Center of Avenue U, Inc and John Hancock Mutual Life Insurance Company by Agreement dated as of January 20, 1971 and recorded October 12, 1971 in Reel 460 Page 175. Modifies and extends terms of Mortgage No. 1 and spreads same to cover Alexander Center Leasehold recorded in Reel 413 Page 145 and other premises.
Modification and Waiver Agreement between Kings Plaza Shopping Center of Flatbush Avenue, Inc., Kings Plaza Shopping Center of Avenue U, Inc., and John Hancock Mutual Life Insurance Company by Agreement dated June 29, 1973 and recorded October 12, 1973 in Reel 664 Page 1515. Modifies the terms of Mortgage No. 1
Modification Agreement between Kings Shopping Center of Flatbush Avenue, Inc., Kings Plaza Shopping Center of Flatbush Avenue, Inc., Kings Shopping Center of Avenue U, Inc., and John Hancock Life Insurance Company by Agreement dated October 12, 1976 and recorded June 29, 1983 in Reel 1404 Page 122. Modifies and extends terms of Mortgage No. 1
Modification Agreement made between Kings Plaza Shopping Center of Flatbush Avenue, Inc., Kings Plaza Shopping Center of Avenue U, Inc. and John Hancock Mutual Life Insurance Company dated May 23, 1983 recorded June 16, 1983 in Reel 1404 Page 132. Modifies terms of Mortgage No. 1
Assignment of Mortgage made by John Hancock Life Insurance Company to Union Bank of Switzerland, New York Branch dated June 18, 1998 recorded July 31, 1998 in Reel 4251 Page 1706. Assigns Mortgage No. 1.
2. Mortgage, Assignment of Leases, Security Agreement and Fixture Filing made by Alexander’s Inc. to First Fidelity Bank, National Association in the sum of $30,000,100.00 dated March 15, 1995 recorded March 17, 1995 in Reel 3481 Page 1507. (Mortgage Tax paid: $None)
Mortgage Modification and Extension and Agreement Alexander’s of Brooklyn, Inc. and First Union National Bank by Agreement dated March 15, 1998 recorded July 9, 1998 in Reel 4237 Page 213. Modifies and extends terms of Mortgage No. 2.
Note and Mortgage Modification Severance Agreement made among Alexander’s of Fordham Road, Inc., Alexander’s, Inc., Alexander’s of Third Avenue, Inc., Alexander’s Rego Park Center, Inc., Alexander’s of Rego Park II, Inc., Alexander’s of Rego Park III, Inc., Seven Thirty One Limited Partnership, Alexander’s Department Stores of Lexington Avenue, Inc., Alexander’s of Brooklyn, Inc., Alexander’s Department Stores of New Jersey, Inc. and First Union Bank F/K/A First Fidelity Bank, National Association dated _____ 18, 1998 and recorded July 31, 1998 in Reel 4251 Page 1712. Severs Mortgage No. 2 into two separate liens as follows:
(i) Lien in the amount of $10,000,000.00 to be evidenced by Mortgage No. 2 herein;
(ii) Lien in the amount of $20,000,000.00 to cover other premises not a part of this report.
Assignment of Mortgage made by First Union National Bank F/K/A First Fidelity, National Association to Union Bank of Switzerland, New York Branch, as Administrative Agent, dated June 18, 1998 and recorded July 31, 1998 in Reel 4251 Page 1751; which Assign Mortgage No. 2, as severed.
3. Mortgage made by United Cigar Stores Company of America to New York Title & Mortgage Company in the sum of $1,000,000.00 dated December 15, 1925 recorded December 18, 1925 in Liber 3648 Mp. 59. (Mortgage Tax paid: $5,000.00)
Assignment of Mortgage made by New York Title & Mortgage Company to Guaranty Trust Company of New York dated December 15, 1930 recorded December 15, 1930 in Liber 4094 Mp. 91. Assigns Mortgage No. 3.
4. Mortgage made by 164 E. 59 Street Corporation to United Stores Realty Corporation in the sum of $550,000.00 dated February 6, 1928 recorded February 10, 1928 in Liber 3852 Mp. 400. (Mortgage Tax paid: $2,758.00)
Assignment of Mortgage made by United Stores Realty Corporation to Guaranty Trust Company of New York dated December 13, 1930 recorded December 15, 1930 in Liber 4094 Mp. 90. Assigns Mortgage No. 4.
Consolidation, Extension and Modification Agreement made between Guaranty Trust Company of New York and 164 E. 59 Street Corporation dated December 13, 1930 recorded December 24, 1930 in Liber 4088 Mp 324. Consolidates Mortgages No. 3 and 4 to form a single lien of $1,300,000.00.
Assignment of Mortgage made by Guaranty Trust Company of New York to New York Life Insurance Company dated July 26, 1937 recorded July 28, 1937 in Liber 4291 Mp. 412. Assigns Mortgage No. 3 and 4 as consolidated.
Assignment of Mortgage made by New York Life Insurance Company to Equitable Life Assurance Society of the United States dated July 15, 1946 and recorded July 30, 1946 in Liber 4840, Page 628. Assigns Mortgage No. 3 and No. 4 as consolidated.
5. Mortgage made by Tillie Feldman to Equitable Life Assurance Society of the United States in the sum of $550,583.16 dated December 15, 1961 recorded December 20, 1961 in Liber 6019 Mp. 392. (Mortgage Tax paid: $2,753.00).
Consolidation, Extension and Modification Agreement made between Equitable Life Assurance Society of the United States and Tillie Feldman dated December 15, 1961 recorded December 20, 1961 in Liber 6019 Mp. 398. Consolidates Mortgages No. 3, 4 and 5 to form a single lien of $1,250,000.00.
Assignment of Mortgage made by Equitable Life Assurance Society of the United States to Equitable Life Mortgage and Realty Investors (a Mass. Trust) dated November 6, 1970 recorded November 24, 1970 in Reel 189 Page 1068. Assigns Mortgage No. 3, 4 and 5 as consolidated.
Assignment of Mortgage made by Equitable Life Mortgage and Realty Investors to United Mutual Savings Bank dated December 10, 1971 recorded January 17, 1972 in Reel 228 Page 1578. Assigns Mortgage No. 3, 4 and 5 as consolidated.
6. Mortgage made by Grugo Equities, Inc., to United Mutual Savings Bank in the sum of $297,257.43 dated December 21, 1971 recorded December 23, 1971 in Reel 226 Page 13. (Mortgage Tax paid: $3,716.25) This mortgage by its terms was consolidated with Mortgages 3, 4 and 5 to form a single lien of 1,350,000.00.
Assignment of Mortgage made by United Mutual Savings Bank to Harlem Savings Bank dated February 3, 1982, recorded February 22, 1982 in Reel 607 Mp. 1529. Assigns Mortgage No. 3, 4, 5 and 6, as consolidated.
7. Mortgage made by Gogru Realty Corp. to Harlem Savings Bank in the sum of $402,029.96 dated February 10, 1982 recorded February 22, 1982 in Reel 607 Page 1532. (Mortgage Tax paid: $6,030.00).
Consolidation, Extension and Modification Agreement made between Gogru Realty Corp. and Harlem Savings Bank dated February 10, 1982 recorded March 23, 1982 in Reel 614 Page 1618. Consolidates Mortgages No. 3 through 7 to form a single lien of $1,500,000.00.
Assignment of Mortgage made by Apple Bank for Savings, F/K/A Harlem Savings Bank to Emanuel Gruss dated March 2, 1987 recorded April 20, 1987 in Reel 1223 Page 1483. Assigns Mortgages No. 3 through 7, as consolidated.
Mortgage Spreader Agreement made among Emanuel Gruss, Seven Thirty One Limited Partnership and Alexander’s of Brooklyn, Inc., dated June 15, 1998 recorded July 31, 1998 in Reel 4251 Page 1686. Spreads the lien of Mortgages No. 3 through 7 as consolidated to encumber Alexander’s Parcel (part of Lot 55).
Assignment of Mortgage made by Emanuel Gruss to Union Bank of Switzerland, New York Branch, as Administrative Agent, dated June 15, 1998, recorded July 31, 1998 in Reel 4251 Page 1697. Assigns Mortgage No. 3 through 7 as consolidated.
8. Mortgage made by Seven Thirty One Limited Partnership to Emanuel Gruss, Riane Gruss and Elizabeth Goldberg in the sum of $22,194,047.08 dated December 30, 1994 recorded January 12, 1995 in Reel 2173 Page 127. (Mortgage Tax paid: $None).
Mortgage Spreader Agreement made among Emanuel Gruss, Riane Gruss and Elizabeth Goldberg, Seven Thirty One Limited Partnership and Alexander’s of Brooklyn, Inc., dated June 15, 1998 recorded July 31, 1998 in Reel 4251 Page 1672; which agreement spreads the lien of Mortgage 8 to encumber the Alexander’s Parcel (part of Lot 55).
Assignment of Mortgage made by Emanuel Gruss, Riane Gruss and Elizabeth Goldberg to Union Bank of Switzerland, New York Branch, as Administrative Agent, dated June 15, 1998 recorded July 31, 1998 in Reel 4251 Page 1681. Assigns Mortgage No. 8.
9. Term Loan Fee and Leasehold Mortgage, Assignment of Leases and Rents and Security Agreement made by Alexander’s King Plaza Center, Inc., Kings Plaza Corp. and Alexander’s Department Stores of Brooklyn, Inc. to Union Bank of Switzerland, New York Branch, as Administrative Agent in the sum of $50,883,837.37 dated June 18, 1998 recorded July 31, 1998 in Reel 4251 Page 1759. (Mortgage Tax paid: $1,399,304.00).
Consolidation, Extension and Modification Agreement made between Alexander’s King Plaza Center, Inc., Kings Plaza Corp. and Alexander’s Department Stores of Brooklyn, Inc. and Union Bank of Switzerland, New York Branch, as Administrative Agent dated June 19, 1998 recorded July 31, 1998 in Reel 4251 Page 1809. Consolidates Mortgages No. 1 through 9 to form a single lien of $90,000,000.00.
Mortgage, Term Loan Agreement and Environmental Agreement and Modification Agreement among Alexander’s Kings Plaza Center, Inc., Kings Plaza Corp., Alexander’s Department Stores Brooklyn, Inc. and Alexander’s Inc. and UBS AG, Stamford Branch, as successor to Union Bank of Switzerland, New York Branch, as Administrative Agent dated January 27, 1999 recorded June 1, 1999 in Reel 4492 Page 24. Modifies the terms of Mortgages No. 1 through 9 as consolidated.
Release of Part of Mortgaged Premises made by UBS AG, Stamford Branch, as successor to Union Bank of Switzerland, New York Branch, as Administrative Agent to Alexander’s Kings Plaza Center, Inc., Kings Plaza Corp. and Alexander’s Department Stores Brooklyn, Inc., dated July 6, 2000 recorded December 20, 2000 in Reel 5034 Page 1396. Releases Lot 114 from the lien of Mortgages No. 1 through 9, as consolidated.
Assignment of Mortgage made by UBS AG, Stamford Branch, as successor to Union Bank of Switzerland, New York Branch to Morgan Guaranty Trust Company of New York, dated as of May 31, 2001 recorded June 5, 2001 in Reel 5175 Page 318. Assigns Mortgages No. 1 through 9, as consolidated.
10. Building Loan Fee and Leasehold Mortgage, Assignment of Leases and Rents and Security Agreement made by Alexander’s Kings Plaza Center, Inc., Kings Plaza Corp., Alexander’s Department Stores Brooklyn, Inc., to UBS AG, Stamford Branch in the sum of $19,567,800.00 dated August 9, 1999 recorded September 17, 1999 in Reel 4587 Page 956. (Mortgage Tax paid: $538,114.50).
Release of Part of Mortgaged Premises made by UBS AG, Stamford Branch, as successor to Union Bank of Switzerland, New York Branch, as Administrative Agent to Alexander’s Kings Plaza Center, Inc., Kings Plaza Corp. and Alexander’s Department Stores Brooklyn, Inc., dated July 6, 2000 recorded December 20, 2000 in Reel 5034 Page 1420. Releases Lot 114 from the lien of Mortgages No. 10.
Assignment of Mortgage made by UBS AG, Stamford Branch, as successor to Union Bank of Switzerland, New York Branch to Morgan Guaranty Trust Company of New York, dated as of May 31, 2001 recorded June 5, 2001 in Reel 5175 Page 353. Assigns Mortgages No. 10.
11. Project Loan Fee and Leasehold Mortgage, Assignment of Leases and Rents and Security Agreement made by Alexander’s Kings Plaza Center, Inc., Kings Plaza Corp., Alexander’s Department Stores Brooklyn, Inc. to UBS AG, Stamford Branch, as successor to Union Bank of Switzerland, New York Branch in the sum of $10,432,200.00 dated August 9, 1999 recorded September 17, 1999 in Reel 4587 Page 1006. (Mortgage Tax paid: $286,885.50).
Release of Part of Mortgaged Premises made by UBS AG, Stamford Branch, as successor to Union Bank of Switzerland, New York Branch, as Administrative Agent to Alexander’s Kings Plaza Center, Inc., Kings Plaza Corp. and Alexander’s Department Stores Brooklyn, Inc., dated July 6, 2000 recorded December 20, 2000 in Reel 5034 Page 1414. Releases Lot 114 from the lien of Mortgages No. 11.
Assignment of Mortgage made by UBS AG, Stamford Branch, as successor to Union Bank of Switzerland, New York Branch to Morgan Guaranty Trust Company of New York, dated as of May 31, 2001 recorded June 5, 2001 in Reel 5175 Page 369. Assigns Mortgages No. 11.
12. Mortgage made by Alexander’s Kings Plaza, LLC, Alexander’s of Kings, LLC and Kings Parking, LLC to Morgan Guaranty Trust Company of New York in the sum of $107,790,408.00 dated as of May 31, 2001 recorded June 5, 2001 in Reel 5175 Page 386. (Mortgage Tax paid: $2,964,236.00).
Amended, Restated and Consolidated Mortgage and Security Agreement among Alexander’s of Kings, LLC, Alexander’s Kings Plaza, LLC, Kings Parking, LLC and Morgan Guaranty Trust Company of New York by Agreement dated as of May 31, 2001 recorded June 5, 2001 in Reel 5175 Page 408. Consolidates Mortgages No. 1 through 12 to form a single lien in the amount of $223,000,000.00, amends and restates terms thereof.
Assignment of Mortgage made by JPMorgan Chase Bank, successor by merger to Morgan Guaranty Trust Company of New York to Wells Fargo Bank Minnesota, N.A., as Trustee, dated as of November 30, 2001 recorded September 19, 2002 in Reel 5804 Page 1860. Assigns Mortgages No. 1 through 12, as consolidated.
Assignment of Mortgage made by Wells Fargo Bank, N.A., successor by merger to Wells Fargo Bank Minnesota, N.A., as Trustee to Bank of America, N.A., as Trustee, dated as of June 30, 2009 recorded March 15, 2010 as CRFN2010000088250. Assigns Mortgages No. 1 through 12, as consolidated.
Assignment of Mortgage from Bank of America, N.A., as Trustee, to Wells Fargo Bank, National Association, as Administrative Agent, dated June 10, 2011 and recorded _____________, 2011 as CRFN _______________________. Assigns Mortgages No. 1 through 12, as consolidated.
13. Gap Mortgage made by Alexander’s Kings Plaza, LLC, Alexander’s of Kings, LLC and Kings Parking, LLC to Wells Fargo Bank, National Association, as Agent for itself and other co-lenders, of even date herewith in the original principal amount of $61,402,986.14 and being duly recorded in the Office of the City Register for the City of New York.
Which said mortgages have not been further assigned of record.
Wells Fargo Loan No. 33-0911464
EXHIBIT 10.60
GUARANTY OF RECOURSE OBLIGATIONS
FOR VALUE RECEIVED, and to induce Lenders (as defined in the Loan Agreement (hereinafter defined)), to lend to Alexander’s of Kings, LLC, Kings Parking, LLC, and Alexander’s Kings Plaza, LLC, each a Delaware limited liability company, each having its principal place of business at c/o Alexander’s, Inc., 210 Route 4 East, Paramus, New Jersey 07652 (individually and/or collectively (as the context may require) referred to herein as “Borrower”), the aggregate principal sum of TWO HUNDRED AND FIFTY MILLION AND NO/100 DOLLARS ($250,000,000.00) (the “Loan”), evidenced by those certain Promissory Notes from Borrower, dated as of the date hereof, in the aggregate principal amount of $250,000,000.00 (as each of the same may hereafter be amended, modified, extended, severed, assigned, renewed or restated, and including any substitute or replacement notes executed pursuant to the Loan Agreement, individually and/or collectively (as the context requires), the “Note”) and that certain Loan Agreement dated the date hereof among Borrower, the lenders named therein, and Administrative Agent (defined below) (as the same may be amended, restated, replaced or otherwise modified the “Loan Agreement”) and secured by a certain mortgage, dated as of the date hereof (together with any and all extensions, renewals, substitutions, replacements, amendments, modifications and/or restatements thereof, the “Security Instrument”, the Note, the Loan Agreement, the Security Instrument and any and all documents or instruments now or hereafter executed in connection with the Loan are collectively herein referred to as the “Loan Documents”). Capitalized terms not otherwise defined herein have the meanings set forth in the Loan Agreement.
2
3
change in Control of Guarantor unless Guarantor shall have obtained the prior written consent of Administrative Agent and Lender (which shall not be unreasonably withheld, conditioned or delayed) unless after giving effect to such Guarantor Sale or Pledge, Guarantor (or the successor entity thereto) shall be a Person that has and provides substantially the same or better experience and expertise as Guarantor prior to such Guarantor Sale or Pledge in conducting business of the nature currently conducted by Guarantor in respect of the Property’s type.
4
consents to service of process by registered or certified mail, postage prepaid, to it at its address given in or pursuant to the first paragraph hereof, Guarantor hereby waiving personal service thereof, and (d) Guarantor initially and irrevocably designates the Secretary of State of the State of New York, with offices on the date hereof at One Commerce Plaza, 99 Washington Avenue, Albany, New York 12231, to receive for and on behalf of Guarantor service of process in the Property State with respect to this Guaranty,. Each of Guarantor, Administrative Agent and Lenders covenants and agrees that in any action or proceeding brought by any party arising hereunder, (x) each party shall and does hereby waive trial by jury, and (y) each party (i) irrevocably submits to the exclusive jurisdiction of the courts of the Property State and the United States District Court located in the county in which the Property is located, and appellate courts from any thereof, and (ii) irrevocably waives any objection which it may have at any time to the laying on venue of any suit, action or proceeding arising out of or relating to this Guaranty brought in any such court, irrevocably waives any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.
5
Guaranty, or any counterpart hereof, shall not relieve the other signatories from their obligations hereunder.
6
[SIGNATURE PAGE IMMEDIATELY FOLLOWS]
7
IN WITNESS WHEREOF, Guarantor has duly executed this Guaranty as of the day and year first above written.
GUARANTOR:
ALEXANDER’S, INC., a Delaware corporation
By: |
/s/ Alan J. Rice |
Name: |
Alan J. Rice |
Title: |
Secretary |
EXHIBIT 10.61
Wells Fargo Loan No.: 33-0911464
ENVIRONMENTAL INDEMNITY AGREEMENT
THIS ENVIRONMENTAL INDEMNITY AGREEMENT (this “Agreement”) made as of the 10th day of June, 2011, by ALEXANDER’S OF KINGS, LLC, KINGS PARKING, LLC, AND ALEXANDER’S KINGS PLAZA, LLC, each having an office at c/o Alexander’s Inc., 210 Route 4 East, Paramus, New Jersey 07652 (individually or collectively (as the context may require) herein referred to as “Borrower”), and ALEXANDER’S, INC., a Delaware corporation having an office at 210 Route 4 East, Paramus, New Jersey 07652 (“Guarantor”; Borrower and Guarantor are individually and/or collectively (as the context may require) referred to herein as “Indemnitor”), to WELLS FARGO BANK, NATIONAL ASSOCIATION, having an address at Wells Fargo Center, 1901 Harrison Street, 2nd Floor, Oakland, California 94612, as administrative agent for the benefit of Lenders (in such capacity, together with its successors and/or assigns in such capacity, “Administrative Agent”), and other Indemnified Parties (hereinafter defined).
RECITALS:
A. Lenders are prepared to make a first mortgage loan to Borrower (the “Loan”), which Loan is (i) secured by, among other things, that certain consolidated, amended and restated fee and leasehold mortgage, assignment of leases and rents and security instrument, dated as of the date hereof (together with any and all extensions, renewals, substitutions, replacements, amendments, modifications and/or restatements thereof, the “Security Instrument”), which grants Administrative Agent, for the benefit of Lenders, a first priority lien on the property encumbered thereby (collectively, the “Property”); (ii) evidenced by those certain Promissory Notes from Borrower, dated as of the date hereof, in the aggregate principal amount of $250,000,000.00 (as each of the same may hereafter be amended, modified, extended, severed, assigned, renewed or restated, and including any substitute or replacement notes executed pursuant to the Loan Agreement, individually and/or collectively (as the context requires), the “Note”); and (iii) made pursuant to that certain Loan Agreement, dated as of the date hereof, among Borrower, Lenders and Administrative Agent, as administrative agent for the benefit of Lenders (as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time, the “Loan Agreement”; the Security Instrument, the Note, the Loan Agreement and any and all documents or instruments now or hereafter executed in connection with the Loan are collectively herein referred to as the “Loan Documents”). All capitalized terms not defined herein shall have the meaning set forth in the Loan Agreement.
B. Lenders are unwilling to make the Loan unless Indemnitor agrees to provide the indemnification, representations, warranties, covenants and other matters described in this Agreement for the benefit of the Indemnified Parties.
C. Indemnitor is entering into this Agreement to induce Lenders to make the Loan.
AGREEMENT
NOW THEREFORE, in consideration of the premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Indemnitor hereby represents, warrants, covenants and agrees for the benefit of Administrative Agent and Lenders as follows:
2
(d) Indemnitor shall keep the Property free and clear of all liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of Indemnitor or any other Person (the “Environmental Liens”); (e) Indemnitor shall, at its sole cost and expense, fully and expeditiously cooperate in all activities pursuant to Paragraph 3 of this Agreement, including but not limited to providing all relevant information and making knowledgeable Persons available for interviews upon reasonable notice and at reasonable times; (f) Indemnitor shall, at its sole cost and expense, perform any environmental site assessment or other investigation of environmental conditions in connection with the Property, pursuant to any written request of Administrative Agent that is based on a reasonable belief that such assessment is warranted by the environmental condition of the Property (including but not limited to sampling, testing and analysis of soil, water, air, building materials, and other materials and substances whether solid, liquid or gas), and share with Administrative Agent the reports and other results thereof, and Administrative Agent and the other Indemnified Parties shall be entitled to rely on such reports and other results thereof; (g) Indemnitor shall, at its sole cost and expense, (i) comply, subject to Borrower’s right of contest under Section 4.2(c) of the Loan Agreement, with all Environmental Laws requiring Indemnitor to effectuate Remediation of any condition (including but not limited to a Release of a Hazardous Substance) in, on, under or from the Property, (ii) comply with any directive from any governmental authority having jurisdiction over the Property requiring any action relating to any environmental condition in, on, under or originating from the Property, and (iii) take any other reasonable action necessary or appropriate for protection of human health or the environment; (h) Indemnitor shall not do and shall use commercially reasonable efforts not to allow any tenant or other user of the Property to do any act that materially increases the dangers to human health or the environment, poses an unreasonable risk of harm to any Person, materially impairs or may materially impair the value of the Property due to the violation of Environmental Law, is contrary to any requirement of any insurer, or violates any covenant, condition, agreement or easement applicable to the Property relating to compliance with Environmental Laws or the Remediation of any condition in, on or under the Property; (i) other than those conditions existing and previously disclosed in the Environmental Reports or otherwise disclosed in writing to Administrative Agent, Indemnitor shall notify Administrative Agent in writing immediately upon learning of (A) any presence or Releases or threatened Releases of Hazardous Substances in, on, under, or from the Property; (B) any non-compliance with any Environmental Laws related in any way to the Property; (C) any actual or potential Environmental Lien; (D) any required Remediation of environmental conditions relating to the Property; and (E) any written notice or other communication of which any Indemnitor becomes aware from any source whatsoever (including but not limited to a governmental entity) relating in any way to Hazardous Substances or Remediation thereof, possible liability of any Person pursuant to any Environmental Law or any actual or potential administrative or judicial proceedings in connection with anything referred to in this Agreement; and (j) Borrower shall complete any current and pending investigations and remediation in compliance with Environmental Laws and perform the monitoring required therein or in any governmental directive issued in connection therewith. Notwithstanding the foregoing, no Event of Default shall occur under the Loan in the event that a Tenant violates the foregoing provisions as long as Indemnitor takes all commercially reasonable actions necessary to effectuate Remediation of such violation.
3
4
time located in, under, on or above the Property or the Power Plant, whether or not such Remediation is voluntary or pursuant to court or administrative order, including but not limited to any removal, remedial or corrective action; (e) any past or present non-compliance or violations of any Environmental Laws (or permits issued pursuant to any Environmental Law) in connection with the Property or operations thereon, including but not limited to any failure by Indemnitor, any Affiliate of Indemnitor, and any tenant or other user of the Property or the Power Plant to comply with any order of any governmental authority in connection with any Environmental Laws; (f) the imposition, recording or filing of any Environmental Lien encumbering the Property; (g) any administrative processes or proceedings or judicial proceedings in any way connected with any matter addressed in this Agreement; (h) any past or present injury to, destruction of or loss of natural resources in any way connected with the Property or the Power Plant, including but not limited to costs to investigate and assess such injury, destruction or loss; (i) any acts of Indemnitor, any Affiliate of Indemnitor, and any tenant or other user of the Property or the Power Plant in arranging for disposal or treatment, or arranging with a transporter for transport for disposal or treatment, of Hazardous Substances at any facility or incineration vessel containing such or similar Hazardous Substances; (j) any acts of Indemnitor, any Affiliate of Indemnitor, and any tenant or other user of the Property or the Power Plant in accepting any Hazardous Substances for transport to disposal or treatment facilities, incineration vessels or sites from which there is a Release of any Hazardous Substance which causes the incurrence of costs for Remediation; (k) any personal injury, wrongful death, or property or other damage arising as a result of any of the foregoing; (l) any misrepresentation or inaccuracy in any representation or warranty or material breach or failure to perform any covenants or other obligations pursuant to this Agreement, and (m) any matters related to the historical and recent UST-related Releases and the related litigation.
5
The term “Hazardous Substances” includes but is not limited to any and all substances (whether solid, liquid or gas) defined, listed, or otherwise classified as pollutants, hazardous wastes, hazardous substances, hazardous materials, extremely hazardous wastes, or words of similar meaning or regulatory effect under any present or future Environmental Laws or that may have a negative impact on human health or the environment, including but not limited to Microbial Matter, petroleum and petroleum products, asbestos and asbestos-containing materials, polychlorinated biphenyls, lead, radon, radioactive materials, flammables and explosives, but excluding substances of kinds and in amounts ordinarily and customarily used or stored in similar properties for the purposes of cleaning or other maintenance operations or repair and otherwise in compliance with all Environmental Laws.
The term “Indemnified Parties” includes Administrative Agent, each Lender, any Person who is or will have been involved in the origination of the Loan, any Person in whose name the encumbrance created by the Security Instrument is or will have been recorded, Persons who may hold or acquire or will have held a full or partial interest in the Loan (including, but not limited to, investors or prospective investors in the Loan, as well as, custodians, trustees and other fiduciaries who hold or have held a full or partial interest in the Loan for the benefit of third parties) as well as the respective directors, officers, shareholders, partners, employees, agents, servants, representatives, contractors, subcontractors, affiliates, subsidiaries, participants, successors and assigns of any and all of the foregoing (including but not limited to any other Person who holds or acquires or will have held a participation or other full or partial interest in the Loan or the Property, whether during the term of the Loan or as a part of or following a foreclosure of the Loan and including, but not limited to, any successors by merger, consolidation or acquisition of all or a substantial portion of the assets and business of Administrative Agent or any Lender).
6
The term “Legal Action” means any claim, suit or proceeding, whether administrative or judicial in nature.
The term “Losses” includes any losses, damages, costs, fees, expenses, claims, suits, judgments, awards, liabilities (including but not limited to strict liabilities), obligations, debts, fines, penalties, charges, costs of Remediation (whether or not performed voluntarily), amounts paid in settlement, foreseeable and unforeseeable consequential damages, litigation costs, attorneys’ fees, engineers’ fees, environmental consultants’ fees, and investigation costs (including but not limited to costs for sampling, testing and analysis of soil, water, air, building materials, and other materials and substances whether solid, liquid or gas), of whatever kind or nature, and whether or not incurred in connection with any judicial or administrative proceedings, actions, claims, suits, judgments or awards, provided, that “Losses” shall not include any amount for which the Indemnified Parties receive the proceeds of insurance.
The term “Microbial Matter” means fungi or bacterial matter which reproduces through the release of spores or the splitting of cells, including, but not limited to, mold, mildew, and viruses, whether or not such Microbial Matter is living.
The term “Power Plant” means the power plant that serves the Property, is located on the roof of the Improvements that comprise part of the Property, but is not part of the Property.
The term “Release” with respect to any Hazardous Substance includes but is not limited to any release, deposit, discharge, emission, leaking, leaching, spilling, seeping, migrating, injecting, pumping, pouring, emptying, escaping, dumping, disposing or other movement of Hazardous Substances.
The term “Remediation” includes but is not limited to any response, remedial, removal, or corrective action; any activity to clean up, detoxify, decontaminate, contain or otherwise remediate any Hazardous Substance; any actions to prevent, cure or mitigate any Release of any Hazardous Substance; any action to comply with any Environmental Laws or with any permits issued pursuant thereto; any inspection, investigation, study, monitoring, assessment, audit, sampling and testing, laboratory or other analysis, or evaluation relating to any Hazardous Substances or to anything referred to herein.
7
8
(a) the obligations pursuant to this Agreement are exceptions to any non-recourse or exculpation provision of the Loan Agreement; (b) Indemnitor is fully and personally liable for such obligations; and (c) such liability is not limited to the original or amortized principal balance of the Loan or the value of the Property.
9
the indemnity provided for hereunder shall neither be contingent upon the existence of any such rights of subrogation nor subject to any claims or defenses whatsoever which may be asserted in connection with the enforcement or attempted enforcement of such subrogation rights including, without limitation, any claim that such subrogation rights were abrogated by any acts of Administrative Agent, any Lender, or other Indemnified Parties; (iii) the right to assert a counterclaim, other than a mandatory or compulsory counterclaim, in any action or proceeding brought against or by Administrative Agent, any Lender, or other Indemnified Parties; (iv) notice of acceptance hereof and of any action taken or omitted in reliance hereon; (v) presentment for payment, demand of payment, protest or notice of nonpayment or failure to perform or observe, or other proof, or notice or demand; and (vi) all homestead exemption rights against the obligations hereunder and the benefits of any statutes of limitations or repose. Notwithstanding anything to the contrary contained herein, Indemnitor hereby agrees to postpone the exercise of any rights of subrogation with respect to any collateral securing the Loan until the Loan shall have been paid in full.
10
judgment or decree to which Indemnitor or the Property is subject, in each case except as would not be reasonably likely to have a Material Adverse Effect;
11
12
[NO FURTHER TEXT ON THIS PAGE]
13
IN WITNESS WHEREOF, this Agreement has been executed by Indemnitor and is effective as of the day and year first above written.
INDEMNITOR:
ALEXANDER’S OF KINGS, LLC, a Delaware
limited liability company
By: |
/s/ Alan J. Rice |
Name: |
Alan J. Rice |
Title: |
Secretary |
KINGS PARKING, LLC, a Delaware limited
liability company
By: |
/s/ Alan J. Rice |
Name: |
Alan J. Rice |
Title: |
Secretary |
ALEXANDER’S KINGS PLAZA, LLC, a
Delaware limited liability company
By: |
/s/ Alan J. Rice |
Name: |
Alan J. Rice |
Title: |
Secretary |
ALEXANDER’S, INC., a Delaware corporation
By: |
/s/ Alan J. Rice |
Name: |
Alan J. Rice |
Title: |
Secretary |
USActive 23005955.6
EXHIBIT 15.1
August 1, 2011
Alexander’s, Inc.
210 Route 4 East
Paramus, New Jersey 07652
We have reviewed, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the unaudited interim financial information of Alexander’s, Inc. and subsidiaries for the periods ended June 30, 2011 and 2010, as indicated in our report dated August 1, 2011; because we did not perform an audit, we expressed no opinion on that information.
We are aware that our report referred to above, which was included in your Quarterly Report on Form 10-Q for the quarter ended June 30, 2011, is incorporated by reference in the following registration statements of Alexander’s, Inc. and subsidiaries:
Registration Statement No. 333-151721 on Form S-8
Amendment No. 1 to Registration Statement No. 33-155727 on Form S-3
We also are aware that the aforementioned report, pursuant to Rule 436(c) under the Securities Act of 1933, is not considered a part of the Registration Statement prepared or certified by an accountant or a report prepared or certified by an accountant within the meaning of Sections 7 and 11 of that Act.
/s/ DELOITTE & TOUCHE LLP
Parsippany, New Jersey
EXHIBIT 31.1
CERTIFICATION
I, Steven Roth, certify that:
1. I have reviewed this Quarterly Report on Form 10‑Q of Alexander’s, Inc.;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure control and procedures (as defined in Exchange Act Rules 13a‑15(e) and 15d‑15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
|
August 1, 2011 |
|
|
|
Steven Roth |
|
Chief Executive Officer |
EXHIBIT 31.2
CERTIFICATION
I, Joseph Macnow, certify that:
1. I have reviewed this Quarterly Report on Form 10‑Q of Alexander’s, Inc.;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure control and procedures (as defined in Exchange Act Rules 13a‑15(e) and 15d‑15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
|
August 1, 2011 |
|
|
|
Joseph Macnow |
|
Executive Vice President and Chief Financial Officer |
EXHIBIT 32.1
CERTIFICATION
(Subsection (a) and (b) of Section 1350 of Chapter 63 of Title 18 of the United States Code)
Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 (subsections (a) and (b) of Section 1350 of Chapter 63 of Title 18 of the United States Code), the undersigned officer of Alexander’s, Inc. (the “Company”), hereby certifies, to such officer’s knowledge, that:
The Quarterly Report on Form 10-Q for the quarter ended June 30, 2011 (the “Report”) of the Company fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934 and the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
|
|
|
||
|
|
|
|
|
|
|
Name: |
Steven Roth |
|
|
|
Title: |
Chief Executive Officer |
|
EXHIBIT 32.2
CERTIFICATION
(Subsection (a) and (b) of Section 1350 of Chapter 63 of Title 18 of the United States Code)
Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 (subsections (a) and (b) of Section 1350 of Chapter 63 of Title 18 of the United States Code), the undersigned officer of Alexander’s, Inc. (the “Company”), hereby certifies, to such officer’s knowledge, that:
The Quarterly Report on Form 10-Q for the quarter ended June 30, 2011 (the “Report”) of the Company fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934 and the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
|
|
|
||
|
|
|
|
|
|
|
Name: |
Joseph Macnow |
|
|
|
Title: |
Executive Vice President and |
|
000110 - Consolidated Balance Sheets (Parentheticals) (USD $)
In Thousands, except Share data |
Jun. 30, 2011
|
Dec. 31, 2010
|
---|---|---|
Assets | Â | Â |
Allowance for doubtful accounts | $ 1,070 | $ 1,047 |
Unamortized leasing fees to Vornado | 50,169 | 48,949 |
Deferred debt issuance costs, accumulated amortization | $ 13,788 | $ 18,855 |
Liabilities and Equity | Â | Â |
Perferred stock: par value per share | $ 1.00 | $ 1.00 |
Preferred stock: authorized shares | 3,000,000 | 3,000,000 |
Preferred stock: issued shares | 0 | 0 |
Preferred stock: outstanding shares | 0 | 0 |
Common stock: par value per share | $ 1.00 | $ 1.00 |
Common stock: authorized shares | 10,000,000 | 10,000,000 |
Common stock: issued shares | 5,173,450 | 5,173,450 |
Common stock: outstanding shares | 5,105,936 | 5,105,936 |
Treasury stock: shares | 67,514 | 67,514 |
000001 - Document and Entity Information (USD $)
In Thousands, except Share data |
6 Months Ended | |
---|---|---|
Jun. 30, 2011
|
Jun. 30, 2010
|
|
Document and Entity Information [Abstract] | Â | Â |
Entity Registrant Name | ALEXANDERS INC | Â |
Entity Central Index Key | 0000003499 | Â |
Document Type | 10-Q | Â |
Document Period End Date | Jun. 30, 2011 | |
Document Fiscal Year Focus | 2011 | Â |
Document Fiscal Period Focus | Q2 | Â |
Amendment Flag | false | Â |
Current Fiscal Year End Date | --12-31 | Â |
Entity Filer Category | Accelerated Filer | Â |
Entity Common Stock, Shares Outstanding | 5,105,936 | Â |
Entity Public Float | Â | $ 622,802 |
Entity Well-known Seasoned Issuer | No | Â |
Entity Voluntary Filers | No | Â |
Entity Current Reporting Status | Yes | Â |
"+ text.join( "
\n" ) +"
" + text[p] + "
\n"; } } }else{ formatted = '' + raw + '
'; } html = ''+ "\n"+''+ "\n"+''+ "\n"+' formatted: '+ ( this.Default == 'raw' ? 'as Filed' : 'with Text Wrapped' ) +''+ "\n"+' | '+ "\n"+'
'+ "\n"+' | '+ "\n"+' '+ "\n"+'
'+ "\n"+' | '+ "\n"+' '+ "\n"+'
010401 - Notes and Mortgages Payable
|
6 Months Ended | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Jun. 30, 2011
|
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Notes and Mortgages Payable [Abstract] | Â | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Notes and Mortgages Payable | 4. Notes and Mortgages Payable The following is a summary of our outstanding notes and mortgages payable. We may refinance our maturing debt as it comes due or choose to repay it at maturity.
|
010901 - Stock-Based Compensation
|
6 Months Ended |
---|---|
Jun. 30, 2011
|
|
Stock-Based Compensation [Abstract] | Â |
Stock-Based Compensation | 9. Stock-Based Compensation
We account for stock-based compensation in accordance with ASC 718, Compensation – Stock Compensation. Our Omnibus Stock Plan (the “Plan”) provides for grants of incentive and non-qualified stock options, restricted stock, stock appreciation rights and performance shares, as defined, to the directors, officers and employees of the Company and Vornado.
On May 26, 2011, the Company granted each of the members of its Board of Directors, 131 Deferred Stock Units (“DSUs”). The DSUs entitle the holder to receive shares of the Company's common stock without the payment of any consideration. The DSUs vested immediately but the shares of common stock underlying the units are not deliverable to the grantee until the grantee is no longer serving on the Company's Board of Directors. In connection with this grant, we expensed $300,000, representing the fair value of these awards on the date of grant. This expense is included as a component of “general and administrative” expense on our consolidated statements of income for the three and six months ended June 30, 2011.
|
000410 - Consolidated Statements of Cash Flows (Parentheticals) (USD $)
In Thousands |
6 Months Ended |
---|---|
Jun. 30, 2010
|
|
Consolidated Statements of Cash Flows | Â |
Interest Paid, Capitalized | $ 956 |
010601 - Fair Value
|
6 Months Ended | ||||||||||||||||||||||||||||||||||||||||||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Jun. 30, 2011
|
|||||||||||||||||||||||||||||||||||||||||||||||||||||
Fair Value [Abstract] | Â | ||||||||||||||||||||||||||||||||||||||||||||||||||||
Fair Value | 6. Fair Value ASC 820, Fair Value Measurement and Disclosures defines fair value and establishes a framework for measuring fair value. The objective of fair value is to determine the price that would be received upon the sale of an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date (the exit price). ASC 820 establishes a fair value hierarchy that prioritizes observable and unobservable inputs used to measure fair value into three levels: Level 1 – quoted prices (unadjusted) in active markets that are accessible at the measurement date for assets or liabilities; Level 2 – observable prices that are based on inputs not quoted in active markets, but corroborated by market data; and Level 3 – unobservable inputs that are used when little or no market data is available. The fair value hierarchy gives the highest priority to Level 1 inputs and the lowest priority to Level 3 inputs. In determining fair value, we utilize valuation techniques that maximize the use of observable inputs and minimize the use of unobservable inputs to the extent possible as well as consider counterparty credit risk in our assessment of fair value. Financial assets recorded at fair value in our consolidated financial statements at December 31, 2010 consist solely of short-term investments (CDARS classified as available-for-sale) and are presented in the table below based on their level in the fair value hierarchy. There were no financial assets recorded at fair value at June 30, 2011 and no financial liabilities recorded at fair value at June 30, 2011 and December 31, 2010.
|
011101 - Significant Tenants
|
6 Months Ended |
---|---|
Jun. 30, 2011
|
|
Significant Tenants [Abstract] | Â |
Significant Tenants | 11. Significant Tenants
Bloomberg L.P. (“Bloomberg”) accounted for $41,504,000 and $41,169,000, or 33% and 35% of our consolidated revenues in the six months ended June 30, 2011 and 2010, respectively. No other tenant accounted for more than 10% of our consolidated revenues. If we were to lose Bloomberg as a tenant, or if Bloomberg were to fail or become unable to perform its obligations under its lease, it would adversely affect our results of operations and financial condition. We receive and evaluate certain confidential financial information and metrics from Bloomberg on a semi-annual basis. In addition, we access and evaluate financial information regarding Bloomberg from private sources, as well as publicly available data. |
010701 - Interest and Other Income, net
|
6 Months Ended |
---|---|
Jun. 30, 2011
|
|
Interest and Other Income, net [Abstract] | Â |
Interest and Other Income, net | 7. Interest and Other Income, net In the second quarter of 2011, we recognized $1,657,000 of income from the collection of prior period tenant utility costs. |
010501 - Liability for Income Taxes
|
6 Months Ended |
---|---|
Jun. 30, 2011
|
|
Liability for Income Taxes [Abstract] | Â |
Liability for Income Taxes | 5. Liability for Income Taxes In accordance with the provisions of Accounting Standards Codification 740, Income Taxes (“ASC 740”), we have an income tax liability of $3,075,000 and $3,041,000 as of June 30, 2011 and December 31, 2010, respectively. This ASC 740 liability, which includes $2,549,000 and $2,466,000 of accrued interest as of June 30, 2011 and December 31, 2010, respectively, is included as a component of “liability for income taxes and other,” on our consolidated balance sheets. If this liability were reversed, it would result in non-cash income and reduce our effective tax rate. Of this liability, $2,523,000 is expected to reverse in the third quarter of 2011 as a result of the expiration of the applicable statute of limitations. Interest expense related to the ASC 740 liability is included as a component of “interest and debt expense” on our consolidated statements of income. We recognized interest of $45,000 and $111,000 in the three months ended June 30, 2011 and 2010, respectively, and $83,000 and $223,000 in the six months ended June 30, 2011 and 2010, respectively.
As of June 30, 2011, Taxable REIT Subsidiary tax returns for the years 2004 through 2010 and REIT tax returns for the years 2007 through 2010 remain open to examination by the major taxing jurisdictions to which we are subject. |
000300 - Consolidated Statement of Changes in Equity (USD $)
In Thousands, except Share data |
Total
|
Common Stock
|
Additional Capital
|
Retained Earnings
|
Treasury Stock
|
Alexander's Equity
|
Non-controlling Interest
|
---|---|---|---|---|---|---|---|
Total equity at Dec. 31, 2009 | $ 314,626 | $ 5,173 | $ 31,501 | $ 275,921 | $ (375) | $ 312,220 | $ 2,406 |
Shares Issued, Beginning Balance at Dec. 31, 2009 | Â | 5,173,000 | Â | Â | Â | Â | Â |
Net income (loss) | 31,265 | Â | Â | 30,663 | Â | 30,663 | 602 |
Dividends paid | (12,765) | Â | Â | (12,765) | Â | (12,765) | Â |
Total equity at Jun. 30, 2010 | 333,126 | 5,173 | 31,501 | 293,819 | (375) | 330,118 | 3,008 |
Shares Issued, Ending Balance at Jun. 30, 2010 | Â | 5,173,000 | Â | Â | Â | Â | Â |
Total equity at Dec. 31, 2010 | 343,776 | 5,173 | 31,501 | 304,055 | (375) | 340,354 | 3,422 |
Shares Issued, Beginning Balance at Dec. 31, 2010 | 5,173,450 | 5,173,000 | Â | Â | Â | Â | Â |
Net income (loss) | 38,007 | Â | Â | 38,364 | Â | 38,364 | (357) |
Dividends paid | (30,636) | Â | Â | (30,636) | Â | (30,636) | Â |
Distributions | (600) | Â | Â | Â | Â | Â | (600) |
Deferred stock unit grant | 300 | Â | 300 | Â | Â | 300 | Â |
Total equity at Jun. 30, 2011 | $ 350,847 | $ 5,173 | $ 31,801 | $ 311,783 | $ (375) | $ 348,382 | $ 2,465 |
Shares Issued, Ending Balance at Jun. 30, 2011 | 5,173,450 | 5,173,000 | Â | Â | Â | Â | Â |
010101 - Organization
|
6 Months Ended |
---|---|
Jun. 30, 2011
|
|
Organization [Abstract] | Â |
Organization | 1. Organization Alexander's, Inc. (NYSE: ALX) is a real estate investment trust (“REIT”), incorporated in Delaware, engaged in leasing, managing, developing and redeveloping its properties. All references to “we,” “us,” “our,” “Company” and “Alexander's” refer to Alexander's, Inc. and its consolidated subsidiaries. We are managed by, and our properties are leased and developed by, Vornado Realty Trust (“Vornado”) (NYSE: VNO).
|
010201 - Basis of Presentation
|
6 Months Ended |
---|---|
Jun. 30, 2011
|
|
Basis of Presentation [Abstract] | Â |
Basis of Presentation | 2. Basis of Presentation The accompanying consolidated financial statements are unaudited and include the accounts of Alexander's and its consolidated subsidiaries. All intercompany amounts have been eliminated. In our opinion, all adjustments (which include only normal recurring adjustments) necessary to present fairly the financial position, results of operations and changes in cash flows have been made. Certain information and footnote disclosures normally included in financial statements prepared in accordance with accounting principles generally accepted in the United States of America (“GAAP”) have been condensed or omitted. These condensed consolidated financial statements have been prepared in accordance with the instructions to Form 10-Q of the Securities and Exchange Commission (the “SEC”) and should be read in conjunction with the consolidated financial statements and notes thereto included in our Annual Report on Form 10-K for the year ended December 31, 2010, as filed with the SEC. We have made estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the consolidated financial statements and the reported amounts of revenues and expenses during the reporting periods. Actual results could differ from those estimates.
The results of operations for the three and six months ended June 30, 2011 are not necessarily indicative of the operating results for the full year.
We currently operate in one business segment. |
011001 - Commitments and Contingencies
|
6 Months Ended |
---|---|
Jun. 30, 2011
|
|
Commitments and Contingencies [Abstract] | Â |
Commitments and Contingencies | 10. Commitments and Contingencies Insurance We maintain general liability insurance with limits of $300,000,000 per occurrence and all-risk property and rental value insurance coverage with limits of $1.7 billion per occurrence, including coverage for terrorist acts, with sub-limits for certain perils such as floods and earthquakes on each of our properties.
In June 2011, we formed Fifty Ninth Street Insurance Company, LLC (“FNSIC”), a wholly owned consolidated subsidiary, to act as a direct insurer for coverage for acts of terrorism, including nuclear, biological, chemical and radiological (“NBCR”) acts, as defined by the Terrorism Risk Insurance Program Reauthorization Act of 2007 (“TRIPRA”). Coverage for acts of terrorism (including NBCR acts) is up to $1.7 billion per occurrence. Coverage for acts of terrorism (excluding NBCR acts) is fully reinsured by third party insurance companies with no exposure to FNSIC. For NBCR acts, FNSIC is responsible for a $275,000 deductible and 15% of the balance of a covered loss and the Federal government is responsible for the remaining 85% of a covered loss. We are ultimately responsible for any loss borne by FNSIC.
There can be no assurance that we will be able to maintain similar levels of insurance coverage in the future in amounts and on terms that are commercially reasonable. We are responsible for deductibles and losses in excess of our insurance coverage, which could be material.
Our mortgage loans are non-recourse to us, except for $75,000,000 of the $320,000,000 mortgage on our 731 Lexington Avenue property, in the event of a substantial casualty, as defined. Our mortgage loans contain customary covenants requiring us to maintain insurance. If lenders insist on greater coverage than we are able to obtain, it could adversely affect our ability to finance our properties.
Environmental Remediation In July 2006, we discovered an oil spill at our Kings Plaza Regional Shopping Center. We have notified the New York State Department of Environmental Conservation (“NYSDEC”) about the spill and have developed a remediation plan. The NYSDEC has approved a portion of the remediation plan and clean up is ongoing. The estimated costs associated with the clean up will aggregate approximately $2,500,000. We have paid $500,000 of such amount and the remainder is covered under our insurance policy.
10. Commitments and Contingencies - continued Paramus In 2001, we leased 30.3 acres of land located in Paramus, New Jersey to IKEA Property, Inc. The lease has a 40-year term with a purchase option in 2021 for $75,000,000. We have a $68,000,000 interest only, non-recourse mortgage loan on the property from a third party lender. The fixed interest rate on the debt is 5.92% with interest payable monthly until maturity in October 2011. The annual triple-net rent is the sum of $700,000 plus the amount of debt service on the mortgage loan. If the purchase option is exercised, we will receive net cash proceeds of approximately $7,000,000 and recognize a gain on sale of land of approximately $62,000,000. If the purchase option is not exercised, the triple-net rent for the last 20 years must include the debt service sufficient to fully amortize $68,000,000 over the remaining 20-year lease term.
Flushing Property In the fourth quarter of 2003, we recognized $1,289,000 of income representing a non-refundable deposit of $1,875,000, net of $586,000 of costs associated with the transaction, from a party that had agreed to purchase this property, as such party had not met its obligations under a May 30, 2002 purchase contract. On September 10, 2002, November 7, 2002, and July 8, 2004, we received letters from the party demanding return of the deposit. On December 28, 2005, the party filed a complaint against us in the New York State Court alleging that we failed to honor the terms and conditions of the agreement. The complaint sought specific performance and, if specific performance was denied, it sought a return of the deposit plus interest and $50,000 in costs. In August 2010, the New York State Court entered judgment denying specific performance and ordered us to return the deposit together with accrued interest and fees. On August 12, 2010, we filed a notice of appeal and the judgment was stayed pending the appeal. In June 2011, we settled with the party for $2,400,000, and reversed $807,000 of the $3,207,000 litigation loss accrual. This reversal is included as a reduction of “general and administrative” expenses on our consolidated statements of income for the three and six months ended June 30, 2011.
Letters of Credit Approximately $7,998,000 of standby letters of credit were issued and outstanding as of June 30, 2011.
Other There are various other legal actions against us in the ordinary course of business. In our opinion, the outcome of such matters in the aggregate will not have a material effect on our financial condition, results of operations or cash flows. |
<8CIQN]^(OP
MP?&7^T5O<%-?O)*V:$R'2W[^DQ=_F(^B^,5#GWZ:.>ZX_C8+ZOS.,/H^6_
M[X(X#F;[`/_VTY\>X@_DF7O =WL%.^UPLEA_#R]8A8ATB.Z^$
M67/Q1S$7+<`MP'<;X$\J1[(.D2?G^F)Q4[F=ATW)L2DY&X];[A\.M\D4LS33
M!IKI6IJQ-/,DFAGO;Y?[UM+,]Z>9T7[#:'3K0+(.I&W47K?.VFN;1-YY\]H"
MW`)\MP'>UF)Q>V';"WM][K(2RL+0PM#"T%Y^7PW43&J!FH/A3__Y/3FY:O\N\*8?EDUXZ#[&;3Y_V"$-`-+"'KE7='/)ZW?_Y,SF
M'_X7QW^OQ5[H85P'OS[*^.TA4@W+(L5647Z)D\#SSTC%45A3]%/X^P6NV.
M_GS^Q_7Q_NC@[/>_C-QHY(Q"',F,T#*RRA<;1W&XP`[*GU/2EJHJ'ZZ.3V_R
M?X(/?_D9WSX)PGD0.LFAN/Y(5.
+RTRN2;QD4QW+9.9Q34&O`[P3`.
MI:<4\WOF358P(+Y8K;A.EZU:?<;Y?6M-@B)?OLL.H.V3AOY(:]5H-Q0-;*71
M0+,LQ\$;;?&U<,2P)R+6:M!XBWMMUD--)%0HG%C>"4^'.*5B*5:GV`%P#:0S
M0%QYB0NMF@52L]8^.2L)2,W:2:>3I2"XMBUR>;22P66VZ:T&5PVCXRF`7"0\
MIQA\X*="#LXU<.#3F-P=@6&;UM*7SACL;0(AF\7(L_C?)IIIGU7QLTUORJT)X'Z02:"6YB20Q&4HCQFC6$-I69JO4;?5&&@`
MBV+>IFJ8^-^#K@]0#B--[+'OM>RE(R^+P"!\([');UE0(8!',1?""XLV?:58
M44XJXF""]G1#Z778\$Z7$"^^@4#_<)*4PNNRGO9Q'-'DB=!);D4V$N#`T*YG
MV&NCF">HZO=-GE=T`T^@E!P/T2Q\9YGTZ>,BP619#G_,J1.(RFH%TGS?_X"6
M_F/I6`@O%L1*V)H8(Z_
-.X%P<`FPZ(V;3\G5:_
M4IE"T*0*!),.+#/IO1X
/Y9`)"PB]Q!@OBN^0#?MUCNQ)*M4R7#JA+R1
M'K#/Q6U]#%1VL[FU1@1742UNEA!(J]'2.['$/ZZDT75RZD(U+RCM*/^0,D\E
M`?6A>">69)XJJ5T[>KI_OV%*\RU31LHTFRRBQUW0[N(EU4'+X
M[RPIRJFQ#*!S0@"Q=S/T8-:N>3;P2%&B)?V)J?/%XV9R^7-ZPNRO$[6(=
MA;HD8/(!G9]4FP4D'RSAT@DVA4)TN@"`EB04-V<^\=C5UY#+WMWNC$4D#Q&$
M9E\VV?V!^9_]M[.C]X#P_32^RH'4[@>@6N)?;LZ0XE%944T&R^19,31#,F89
M^)]#LP&+(CG(]P0DH(-TOB]^_BE)H0)^(P!AB9.Z.1.)!YU,)]CI.#M"0*1T
M7HD,WX`((':>QD*8+C;R>F"8):E"4U)HA88;U)W+I]UVG]Q(L\:Z#U6YOI9.
M%U[7FK)&6S%E%:=5I"V#4-)&?W4WQRM60:=U^MRF$Q*_RYI7/*H\8GF=`$A+
MMB!LQYQ5QJQ87SL29>[HJ$5*TG(R%1E9*I!'39)"ZWT`1/O2M!LT9J7DD$A=
M/QUCFX>L-;G