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Exhibit 10(i)(J)(1)
FIRST AMENDMENT TO MORTGAGE AND SECURITY AGREEMENT
This First Amendment (this "Amendment") dated as of February 24,
2000 between ALEXANDER'S OF FORDHAM ROAD, INC., a Delaware corporation, having
an office at Park 00 Xxxx, Xxxxx XX, Xxxxxx Xxxxx, Xxx Xxxxxx 00000
("MORTGAGOR") and BANC OF AMERICA COMMERCIAL FINANCE CORPORATION (formerly known
as Greyrock Capital Group Inc.), having an office at 000 Xxxxxxx Xxxx, Xxxxxx,
Xxxxxxxxxxx ("MORTGAGEE").
R E C I T A L S:
A. Lender is the holder of that certain Mortgage and Security
Agreement dated as of February 24, 1995 made by Alexander's Inc. ("Alexander's")
to Mortgagee and recorded on February 27, 1995 in the office of the City
Register, Bronx County, New York in Reel 1303, Page 457 (the "MORTGAGE"), which
Mortgage encumbers the land described in Exhibit A hereto, the improvements
thereon and other property more particularly described in the Mortgage, and
which Mortgage was assumed by Mortgagor.
B. The Mortgage secures that certain Promissory Note (Secured) dated
February 24, 1995 in the original principal amount of $25,000,000 made by
Alexander's to Mortgagee (the "ORIGINAL NOTE"), which Original Note was assumed
by Mortgagor.
C. Simultaneously with the execution and delivery hereof, Mortgagor
and Mortgagee are executing and delivering an amendment and restatement of the
Original Note (the "RESTATED NOTE"), which Restated Note, among other things,
extends the term of the loan secured by the Mortgage and provides for the
accrual of part of the interest on the Loan.
D. Mortgagor and Mortgagee desire to amend the Mortgage so as to,
among other things, confirm that it will secure the Restated Note.
NOW, THEREFORE, in consideration of the covenants and agreements
hereinafter set forth and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged by all of the parties hereto,
and to induce Mortgagee to accept the Restated Note, the parties hereto agree as
follows:
1. DEFINITIONS. All capitalized terms used and not defined herein
shall have the respective meanings given such terms in the Mortgage.
2. NOTE. All references in the Mortgage to "Note" shall be deemed to
refer to the Restated Note, as the same may hereafter from time to time be
amended, extended, consolidated, replaced, supplemented, substituted for,
restated, severed or otherwise modified.
3. LEASES.
(a) Mortgagor shall not enter into any lease, occupancy
agreement or license agreement with respect to the Mortgaged Property or
any part thereof, or any other agreement with respect to the Mortgaged Property
or any part thereof (other than a service contract that can be terminated
without penalty or premium on not more than 30 days notice to the other party to
such service contract) without the prior written consent of Mortgagee in each
instance; provided,
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however, that Lender shall not unreasonably withhold, delay or condition its
consent to any lease. Mortgagee shall enter into a subordination, nondisturbance
and attornment agreement ("SNDA") in the form attached hereto as Exhibit B with
any tenant under a lease that has been approved or been deemed approved by
Mortgagee in accordance with this Paragraph 3, and Mortgagee shall in good faith
consider requests made by any such tenant to make changes to such form (although
Mortgagee shall not be obligated to make such changes). In addition, in the case
of a Credit Lease (as hereinafter defined) only, the form of SNDA shall be
modified to give the tenant a right (so long as the tenant is not in default
under the lease beyond any applicable grace period) to offset against rent (i)
the amount of any contribution for tenant improvements which the landlord under
the lease is obligated to pay but does not pay when due and/or (ii) the
reasonable cost of any tenant improvements that the landlord under the lease is
obligated to perform that were performed by tenant after the landlord failed to
perform same when required under the lease and the expiration of any grace
period available to the landlord. Notwithstanding anything to the contrary
contained in the foregoing, Lender shall not be obligated to approve any lease
or negotiate or enter into any SNDA at any time that an Event of Default is
continuing or after Mortgagor has given a Borrower Notice (as such term is
defined in that certain Trigger Agreement dated the date hereof between
Guarantor and Lender). "Credit Lease" means a lease with an investment grade
rated tenant on market terms for a term of at least five years.
(b) The following procedure shall be followed regarding
lease approvals. Mortgagor may but shall not be required to submit to
Mortgagee and Mortgagee's Counsel (as hereinafter defined) a term sheet
summarizing the principal terms of the lease (together with, at Mortgagor's
option, a draft of the proposed lease), accompanied by a request (the "First
Request") for approval thereof and also accompanied by, to the extent that
Mortgagor was able to obtain them after having used reasonable efforts to do so,
the respective current financial statements of the lessee under such proposed
lease and the guarantor(s), if any, of such lessee's obligations thereunder. If
Mortgagee does not notify Mortgagor of its approval or disapproval of the term
sheet (and, if applicable, lease draft) within five Business Days after the term
sheet (and, if applicable, lease draft) and accompanying materials are received
by Mortgagee and Mortgagee's Counsel, Borrower may submit a second request (the
"Second Request") to Mortgagee and Mortgagee's Counsel which shall be identical
to the First Request. If Mortgagee does not notify Mortgagor of Mortgagee's
approval or disapproval of the term sheet (and, if applicable, lease draft)
within two Business Days after the Second Request is received by Mortgagee and
Mortgagee's Counsel, the term sheet (and, if applicable, the lease draft) shall
be deemed approved, provided the First Request and the Second Request each
contained the legend set forth in the last sentence of this Section. Mortgagor
shall also submit to Mortgagee and Mortgagee's' Counsel a request (also, a
"First Request") for approval of the lease itself, accompanied by (1) a copy of
the proposed lease, executed by the tenant, (2) any guaranty(ies) of said lease,
and (3) if the lease is based on Mortgagor's standard form, a copy of the lease
marked to show changes from the approved standard lease form, or, if a draft has
previously been submitted, a copy of the lease marked to show changes from such
draft. If Mortgagee does not notify Mortgagor of Mortgagee's approval or
disapproval of the lease within five Business Days after the lease and
accompanying materials are received by Mortgagee and Mortgagee's Counsel,
Mortgagor may submit a second request (also, a "Second Request") to Mortgagee
and its counsel which shall be identical to the First Request. If Mortgagee does
not notify Mortgagor of Mortgagee's approval or disapproval of the lease within
two Business Days after the Second
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Request is received by Mortgagee and Mortgagee's Counsel, the lease shall be
deemed approved, provided the First Request and the Second Request each
contained the legend set forth in the last sentence of this Section. Mortgagee
may not object to any lease term that was in a term sheet or draft lease that
was previously approved (or deemed approved) by Mortgagee. To the extent plans
(or schematic plans) are included in the documents constituting a lease,
Mortgagee and its construction consultant shall have the right to review the
same (at Mortgagor's expense) as part of the lease approval process and, if such
plans call for structural work, Landlord shall have an additional two (2)
Business Days to notify Tenant of its approval or disapproval thereof. All
requests made pursuant to this Paragraph 3 shall be made in accordance with the
notice provisions set forth in the Restated Note, with an additional copy to
Xxxx, Scholer, Fierman, Xxxx & Handler, LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention Xxxxx X. Xxxx, Esq. ("Mortgagee's Counsel"). Each request for
approval of a lease, lease draft or term sheet pursuant to this Section shall
make specific reference to the provisions of this Section and shall expressly
state, in all capital letters on the first page thereof: "YOU ARE HEREBY
REMINDED THAT YOUR FAILURE TO PROVIDE NOTIFICATION OF APPROVAL OR DISAPPROVAL
NOT LATER THAN [for First Request: FIVE (5) BUSINESS DAYS][for Second Request:
TWO (2) BUSINESS DAYS or, in the case of a lease including structural plans,
FOUR (4) BUSINESS DAYS] AFTER YOUR RECEIPT OF THIS REQUEST, SHALL BE DEEMED TO
CONSTITUTE YOUR APPROVAL HEREOF."
(c) Notwithstanding anything to the contrary contained
in this Paragraph 3, (i) in no event shall Mortgagee have any obligation to
approve or consent to, and in no event shall Mortgagee be deemed to have
approved or consented to, any Lease that contains a purchase option, or a right
of first refusal or right of first offer, with respect to a sale of the
Mortgaged Property or any part thereof or interest therein, and (ii) in no event
shall a lease be deemed approved if the term sheet or draft lease with respect
thereto was disapproved and, notwithstanding anything to the contrary contained
in this Section, no lease or term sheet shall be deemed approved during the
existence of an Event of Default.
4. CASH MANAGEMENT. Prior to entering into any lease, occupancy
agreement or license agreement with respect to the Mortgaged Property or any
part thereof, Mortgagor (i) shall open a trust account (the "CLEARING ACCOUNT ")
at a bank selected by Mortgagor and reasonably acceptable to Mortgagee (the
"CLEARING BANK ") and (ii) shall execute and deliver to Mortgagee, and shall
cause the Clearing Bank and any manager of the Mortgaged Property to execute and
deliver to Mortgagee, an agreement in the form of Exhibit C hereto (the
"CLEARING ACCOUNT AGREEMENT"). Mortgagor shall cause all Property Income to be
transmitted directly by all tenants, occupants and licensees of the Mortgaged
Property into the Clearing Account as more fully described in the Clearing
Account Agreement. Without in any way limiting the foregoing, all Property
Income received by Mortgagor or any manager of the Mortgaged Property shall be
deposited into the Clearing Account within one Business Day of receipt. Funds
deposited into the Clearing Account shall be swept by the Clearing Bank on a
daily basis into Mortgagor's operating account at the Clearing Bank, unless an
Event of Default is continuing, in which event such funds shall be swept on a
daily basis to a bank account designated and controlled by Mortgagee (the
"DEPOSIT ACCOUNT ") and applied to the Loan and/or Operating Expenses in such
order and manner as Mortgagee may elect in its sole and absolute discretion,
subject, however, to the provisions of Paragraph 2(d) of the Trigger Agreement.
The Deposit Account will be under
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the sole control and dominion of Mortgagee, and Mortgagor shall have no right of
withdrawal therefrom. Mortgagor shall pay for all expenses of opening and
maintaining all of the above accounts.
5. PRINCIPAL AMOUNT. As of the date hereof, the outstanding
principal amount secured by the Mortgage as amended hereby is $21,262,848.54.
The Mortgage as amended hereby does not secure any new or further principal
indebtedness other than the principal indebtedness secured by the Mortgage.
6. CONFLICTS. In the event of any conflict between the terms of
this Amendment and the terms of the Mortgage, the terms of this Amendment shall
control.
7. FULL FORCE AND EFFECT. As amended hereby the Mortgage remains in
full force and effect. Mortgagor has no offsets, defenses or counterclaims with
respect to any of its obligations under the Mortgage as amended hereby, the
Restated Note or any of the other Loan Documents (including, without limitation,
the Assignment and the Assignment of Licenses, Permits and Approvals and
Contracts and Agreements and Equipment Leases).
8. NOTICES. All notices given under this Amendment or the Mortgage
shall be given in accordance with Section 9 of the Restated Note.
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IN WITNESS WHEREOF, each of the undersigned has duly executed or
caused this Agreement to be duly executed as of the day and year first above
written.
ALEXANDER'S OF FORDHAM ROAD, INC.
By: /s/ Xxxxx Xxxxxxxx
----------------------------
BANC OF AMERICA COMMERCIAL FINANCE
CORPORATION
By: /s/ Xxxxxx X. Xxxxx
----------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
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STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ____ day of April, in the year 2000, before me, the
undersigned, personally appeared _________________, 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.
---------------------------
Notary Public
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ____ day of April, in the year 2000, before me, the
undersigned, personally appeared _________________, 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.
---------------------------
Notary Public
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Exhibit A
Legal Description
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Exhibit B
CLEARING ACCOUNT AGREEMENT
CLEARING ACCOUNT AGREEMENT (the "AGREEMENT") dated as of
________, 1999 among ______________, having an address at ___________________
(the "CLEARING BANK"), ALEXANDER'S OF FORDHAM ROAD INC., a Delaware corporation,
having an office at Park 00 Xxxx, Xxxxx XX, Xxxxxx Xxxxx, Xxx Xxxxxx 00000
("BORROWER") and BANC OF AMERICA COMMERCIAL FINANCE CORPORATION, having an
address at 000 Xxxxxxx Xxxx, Xxxxxx Xxxxxxxxxxx 00000 (together with its
successors and assigns, "LENDER").
W I T N E S S E T H:
RECITALS:
a) Pursuant to certain loan documents (collectively, the "LOAN DOCUMENTS"),
between Lender and Borrower, Lender has made a loan to Borrower secured by a
mortgage (the "MORTGAGE"), on certain real property owned by Borrower and known
as 2501-2511 Grand Concourse and 0000-0000 Xxxxxxx Xxxxxx in Bronx, New York
(the "PROPERTY");
b)
c) [Borrower and _________________ (the "MANAGER") are parties to a management
agreement with respect to the Property pursuant to which the Manager has agreed
to manage the Property;]
d)
e) The Loan Documents provide that all Rents (as defined in Section 13) shall be
sent directly to a financial institution reasonably acceptable to Lender for
deposit into an account designated and established by Lender or its designee;
and
f)
g) Lender and Borrower desire to retain the Clearing Bank to provide the
services described herein.
h)
i) NOW THEREFORE, in consideration of the mutual promises contained herein and
for other good and valuable consideration, the sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
j)
2. DUTIES OF THE CLEARING BANK.
a. The Clearing Bank shall receive and process any deposits
presented by Borrower, the Manager or any of their respective
agents pursuant to Section 4 in accordance with the terms of this
Agreement. The Clearing Bank shall also receive and process all
Rents sent directly to the Clearing Bank by tenants at the
Property. The receipts described in this paragraph (a) are
collectively referred to herein as the "RECEIPTS." The Clearing
Bank shall establish and maintain a collection account for the
Property (the "CLEARING ACCOUNT"), into which the
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Clearing Bank shall deposit all Receipts received by it with
respect to the Property. The Clearing Account shall be entitled
as follows:
Name: Banc of America Commercial Finance Corporation,
as mortgagee of Alexander's of Fordham Road, Inc.
----------------------
Account No.:
----------------------
ABA No.:
----------------------
The Clearing Bank shall maintain a microfilm or other record of
each Receipt which is processed by the Clearing Bank for a period
of one year from the date of processing.
a. Items deposited with the Clearing Bank which are
returned for insufficient or uncollected funds will be
re-deposited the first time. Items returned unpaid the
second time for whatever reason shall be debited to the
Clearing Account under advice and returned to Borrower.
Borrower shall be liable to the Clearing Bank for the
amount of any exchange or collection charges incurred by
the Clearing Bank. Return item fees will be charged
directly to the Clearing Account. The Clearing Bank shall
send a monthly report to Borrower and Lender, which monthly
report shall specify the amount deposited into the Clearing
Account with respect to the Property for the previous
month.
a. During any period other than a Cash Management Period
(as defined in Section 13), the Clearing Bank shall, on a
daily basis, transfer funds from time to time on deposit in
the Clearing Account to the operating account of Borrower
at the Clearing Bank (Account No. _____) or as Borrower may
otherwise direct by written notice to the Clearing Bank.
a. During a Cash Management Period, however, the
Clearing Bank shall disburse all amounts that are then in
the Clearing Account by wire transfer (or transfer via the
ACH system) of immediately available funds on a daily basis
to the Deposit Account at the Deposit Bank (as defined in
Section 13). Borrower hereby irrevocably instructs and
authorizes the Clearing Bank to make transfers into the
Deposit Account in accordance with this Section 1(d). The
foregoing instructions are irrevocable and not subject to
modification in any manner, except that Lender, its
designee or its successor as servicer may, by written
notice to the Clearing Bank amend or rescind such
instructions. Simultaneously with any transfer to the
Deposit Bank pursuant to this Section 1(d), the Clearing
Bank shall send to the Deposit Bank, Lender and Borrower,
via telecopy, a notice of wire transfer or ACH system
advice setting forth the amount transferred.
1. FEES. To compensate the Clearing Bank for performing the
herein-described services, Borrower agrees to pay the fees owed to
the Clearing Bank. The Clearing Bank shall debit the Clearing
Account under advice on a monthly basis or shall include its fees
in an account analysis statement, in accordance with the
particular arrangements between the Clearing Bank and Borrower.
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1. TERMINATION.
a. The Clearing Bank may resign from obligations under this
Agreement at any time after 30 days' prior written notice
to the other parties hereto, but in no event shall the
Clearing Bank be released of its obligations hereunder
unless and until a substitute bank has been designated and
assumed its respective obligations hereunder. With respect
to the appointment of a successor to the Clearing Bank,
Borrower and Lender shall use reasonable efforts to
designate such a bank promptly after receipt of notice of
resignation by the Clearing Bank and shall take all
reasonable actions necessary to cause such designated
successor promptly to assume the obligations of the
Clearing Bank hereunder.
a. Lender may terminate this Agreement at any time upon 30
days' prior written notice to the other parties hereto.
a. Borrower may not unilaterally terminate this Agreement
or close the Clearing Account established hereunder and
the Clearing Bank shall not comply with any request from
Borrower to close the Clearing Account.
1. MATTERS CONCERNING BORROWER AND MANAGER. Borrower and the Manager
hereby agree to deposit with the Clearing Bank within one Business
Day of receipt, all Rents received by Borrower or the Manager,
respectively, with respect to the Property. Concurrently with the
execution and delivery hereof, Borrower shall deliver a notice in
the form of Exhibit A to each existing tenant at the Property
directing them to remit their rent checks directly to the Clearing
Bank, and shall also deliver such a notice to each future tenant
at the Property.
1. INDEMNIFICATION. The Clearing Bank shall not be liable for any
claims, suits, actions, costs, damages, liabilities or expenses or
for any interruption of services, or incidental, consequential,
special or punitive damages ("LIABILITIES") in connection with the
subject matter of this Agreement other than Liabilities caused by
the negligence or willful misconduct of the Clearing Bank, and
Borrower hereby agrees to indemnify and hold harmless the Clearing
Bank and the directors, officers, employees and agents of the
Clearing Bank and the successors and assigns of the Clearing Bank
from and against any and all Liabilities arising from or in
connection with any acts or omissions taken by the Clearing Bank
or any director, officer, employee or agent of any of them, as
applicable, in connection with this Agreement, other than those
Liabilities caused by the negligence or willful misconduct of the
Clearing Bank.
1. LENDER'S RIGHTS IN CLEARING ACCOUNT.
a. Borrower hereby pledges, transfers and assigns to
Lender, and grants to Lender, as additional security for
Borrower's obligations under the Loan Documents, a
continuing perfected security interest in and to, and a
general first lien upon, all of Borrower's right, title and
interest in and to (i) the Clearing
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Account and all cash, property or rights transferred to or
deposited in the Clearing Account from time to time, (ii)
all earnings, investments and securities held in the
Clearing Account, and (iii) any and all proceeds of the
foregoing. Borrower further agrees to execute, acknowledge,
deliver, file or do, at its sole cost and expense, all
other acts, assignments, notices, agreements or other
instruments as Lender may reasonably require in order to
effectuate, assure, secure, assign, transfer and convey
unto Lender any of the rights granted by this Section.
a. Borrower and Lender hereby notify the Clearing Bank of
the grant by Borrower to Lender of a security interest in
the Clearing Account and all of the Borrower's right, title
and interest in and to all cash, property and rights
transferred or deposited in the Clearing Account. In
addition, the Clearing Bank and Borrower each acknowledge
and agree that the Clearing Account maintained hereunder is
subject to the sole dominion, control and discretion of
Lender and its authorized agents or designees, and Borrower
shall have no right to close any such account or right of
withdrawal with respect to any such account, except as
expressly permitted under the Loan Documents, except with
the prior written consent of Lender. Borrower shall be
entitled to request and receive any information about the
Clearing Account that it shall reasonably request from time
to time. The Clearing Bank waives any right to offset any
claim against Borrower which it might have against the
Clearing Account maintained hereunder; provided, however,
that the Clearing Bank retains the right to charge the
Clearing Account for (i) any of the Clearing Bank's
charges, fees and expenses provided for herein for which
Borrower is responsible and (ii) all items deposited in and
credited to such account and subsequently returned unpaid
or with respect to which the Clearing Bank fails to receive
final settlement.
1. SUCCESSORS AND ASSIGNS; ASSIGNMENTS. This Agreement shall bind and
inure to the benefit of and be enforceable by the Clearing Bank, Borrower
and Lender and their respective successors and assigns. Lender shall have
the right to assign or transfer its rights under this Agreement without
limitation. Any assignee or transferee shall be entitled to all the
benefits afforded Lender under this Agreement; provided, however, that
such assignee or transferee shall have delivered to the other parties
hereto written confirmation that such assignee or transferee agrees to be
bound by the terms of this Agreement and is also the assignee or
transferee (or agent thereof) of the note secured by the Mortgage.
1. AMENDMENTS; OTHER AGREEMENTS. This Agreement may be further amended
from time to time in writing by all parties hereto. This Agreement is
supplemented by the terms of the Clearing Bank's deposit account
agreement with Borrower, and to the extent the terms of such agreement
conflict with this Agreement, the specific terms of this Agreement shall
control.
1. NOTICES. Notices to the Clearing Bank should be sent to the address
first above written or by telecopy to ___________, Attention:
_______________; notices to Borrower should be sent to the address first
above written or by telecopy to ________________, Attention:
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_____________; and notices to Lender should be sent to the address first
above written or by telecopy to (000) 000-0000, Attention: Real Estate
Administration (Attn: Xxxxx Xxxxxxx); or, in each case, to such other
address as shall be designated in writing by the respective party to the
other parties hereto. Unless otherwise expressly provided herein, all
such notices, to be effective, shall be in writing (including by
facsimile), and shall be deemed to have been duly given or made (a) when
delivered by hand or by nationally recognized overnight carrier, (b) upon
receipt after being deposited in the mail, certified mail and postage
prepaid or (c) in the case of facsimile notice, when sent and
electronically confirmed, addressed as set forth above.
1. GOVERNING LAW AND VENUE. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York (without
regard to conflicts of laws principles applied in New York). Borrower
hereby submits to the nonexclusive jurisdiction of the state and federal
courts of the State of New York for the purposes of all legal proceedings
arising out of or relating to this Agreement or the transactions
contemplated hereby. Borrower irrevocably waives, to the fullest extent
permitted by law, any objection which it may now or hereafter have to the
laying of the venue of any such proceeding brought in such a court and
any claim that any such proceeding brought in such a court has been
brought in an inconvenient forum.
1. CERTAIN MATTERS AFFECTING THE CLEARING BANK. The Clearing Bank may rely
and shall be protected in acting or refraining from acting upon any
notice (including but not limited to electronically confirmed facsimiles
of such notice) believed by it to be genuine and to have been signed or
presented by the proper party or parties. The duties and obligations of
the Clearing Bank set forth in this Agreement shall be determined solely
by the express provisions of this Agreement, the Clearing Bank shall not
be liable except for the performance of such party's duties and
obligations as are specifically set forth in this Agreement, and no
implied covenants or obligations shall be read into this Agreement
against the Clearing Bank.
1. INTERPLEADER. If at any time the Clearing Bank, in good faith, is in
doubt as to the action it should take under this Agreement, the Clearing
Bank shall have the right to commence an interpleader action in the
United States District Court for the State of New York and to take no
further action except in accordance with joint instructions from Lender
and Borrower or in accordance with the final order of the court in such
action.
1. DEFINED TERMS. As used herein the following capitalized terms shall have
the respective meanings set forth below:
a. "BUSINESS DAY" shall mean any day other than a Saturday, Sunday or
any day on which commercial banks in New York, New York are
authorized or required to close.
a. "CASH MANAGEMENT PERIOD" shall mean each period
commencing upon the giving by Lender or its designee to the
Clearing Bank of a notice stating either that an "Event of Default
exists under the Loan Documents" or that "Borrower
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has delivered a Borrower Notice" and terminating upon the giving by
Lender or its designee to the Clearing Bank of a notice stating that
the Cash Management Period has ended. The Clearing Bank shall have
no duty, obligation or right to inquire into the truth or accuracy
of any such notice from Lender and Borrower hereby irrevocably
directs and authorizes Clearing Bank to comply with any notice
received from Lender.
a. "DEPOSIT ACCOUNT" shall mean the bank account as shall have
at the time in question most recently been designated as such in a
written notice from Lender to the Clearing Bank.
a. "DEPOSIT BANK" shall mean the bank at which the Deposit
Account is located.
a. "RENTS" shall mean all rents, rent equivalents, moneys
payable as damages (including payments by reason of a rejection of
a lease in a bankruptcy proceeding) or in lieu of rent or rent
equivalents, royalties (including, without limitation, all oil and
gas or other mineral royalties and bonuses), income, fees,
receivables, receipts, revenues, deposits (including, without
limitation, security, utility and other deposits), accounts, cash,
issues, profits, charges for services rendered, and other payment
and consideration of whatever form or nature received by or paid
to or for the account of or benefit of Borrower, Manager or its
agents or employees from any and all sources arising from or
attributable to the Property and the improvements thereon,
including, without limitation, all receivables, customer
obligations, installment payment obligations and other obligations
now existing or hereafter arising or created out of the sale,
lease, sublease, license, concession or other grant of the right
of the use and occupancy of the Property or rendering of services
by Borrower, Manager or any of their agents or employees and
proceeds, if any, from business interruption or other loss of
income insurance.
[The rest of this page is left blank intentionally]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
in several counterparts (each of which shall be deemed an original) as from the
date first above written.
[CLEARING BANK]
By:
-------
Name:
Title:
ALEXANDER'S OF FORDHAM ROAD, INC.
By: ,
-------
BANC OF AMERICA COMMERCIAL
FINANCE CORPORATION
By:
-------
Name:
Title:
The Manager hereby agrees to the
provisions of Section 4 hereof
---------------------------------
By:
---------------------
Name:
Title:
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EXHIBIT A
FORM OF NOTICE TO TENANTS
[BORROWER'S NAME AND ADDRESS]
, 1999
-----------
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
[Name and Address of Tenant]
Re: Lease of Space at
-------------------------
, (the "Building")
-----------------------------------------
Ladies and Gentlemen:
The undersigned is the owner of the Building and the
landlord under your lease of space in the Building (your "Lease").
By this letter, you are hereby directed (1) to make all
checks, in payment of rent and other sums due to the landlord under your
Lease, payable to the order of "Alexander's of Fordham Road, Inc. for the
benefit of Banc of America Commercial Finance Corporation, as mortgagee, Account
No. ____________" , and (2) to deliver such checks or otherwise make such
payments to the following address:
[Name and Address of Clearing Bank]
The foregoing direction is irrevocable, except with the
written consent of our mortgagee, Banc of America Commercial Finance
Corporation (or its successors or assigns), notwithstanding any future contrary
request or direction from the undersigned or any other person (other than Banc
of America Commercial Finance Corporation (or its successors or assigns)). Thank
you for your cooperation.
Very truly yours,
[BORROWER]
By:
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Name:
Title:
