NOTE EXCHANGE AGREEMENT
THIS NOTE EXCHANGE AGREEMENT (this "AGREEMENT") made as of the 13 day
of February, 2004, by and between 731 oFFICE One LLC, a Delaware limited
liability company (BORROWER), having an office at c/o Alexander's Inc., 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and German American Capital
Corporation, a Maryland corporation (together with its successors and assigns,
"LENDER"), having an address at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
W I T N E S S E T H:
WHEREAS, Lender is (a) the lawful owner and holder of that certain
Amended Restated and Consolidated Note, dated as of February __, 2004, made by
Borrower in favor of Lender (the "ORIGINAL NOTE"), (b) the lender under that
certain Loan and Security Agreement, dated as of February __, 2004, as amended,
between Borrower and Lender (the "LOAN AGREEMENT") and (c) the mortgagee under
the Security Instrument (as defined in the Loan Agreement);
WHEREAS, the total aggregate original principal amount of the Original
Note is Four Hundred Million Dollars ($400,000,000); and
WHEREAS, Lender, as the holder of the Original Note, and Borrower, as
the Borrower under the Original Note, have agreed, that the indebtedness
evidenced by the Original Note shall be exchanged and replaced in its entirety
for indebtedness evidenced by four (4) separate newly issued notes as follows:
(a) a Promissory Note A-1 to be dated as of the date hereof in
the original principal amount of Ninety Million and No/100 Dollars ($90,000,000)
("NOTE A-1") and issued in favor of German American Capital Corporation;
(b) a Promissory Note A-2 to be dated as of the date hereof in
the original principal amount of Ninety Five Million and No/100 Dollars
($95,000,000) ("NOTE A-2") and issued in favor of German American Capital
Corporation;
(c) a Promissory Note A-3 to be dated as of the date hereof in
the original principal amount of Thirty Five Million and No/100 Dollars
($35,000,000) ("NOTE A-3") and issued in favor of German American Capital
Corporation;
(d) a Promissory Note A-4 to be dated as of the date hereof in
the original principal amount of Ninety Four Million and No/100 Dollars
($94,000,000) ("NOTE A-4") and issued in favor of German American Capital
Corporation;
(e) a Note A-X to be dated as of the date hereof in the
original notional amount of Eighty Six Million and No/100 Dollars ($86,000,000)
("NOTE A-X") and issued in favor of German American Capital Corporation; and
(f) a Promissory Note B to be dated as of the date hereof in
the original principal amount of Eighty Six Million and No/100 Dollars
($86,000,000) ("NOTE B") and issued in favor of German American Capital
Corporation.
NOW THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. On and after the date hereof, the principal indebtedness of Four Hundred
Million Dollars ($400,000,000) evidenced by the Original Note, of which
$400,000,000 is outstanding, shall be, and hereby is, exchanged and replaced in
its entirety for the following:
(i) A principal indebtedness of Ninety Million and No/100 Dollars
($90,000,000) to be evidenced by Note A-1, which Note A-1 will be
executed and delivered by Borrower to German American Capital
Corporation simultaneously herewith;
(ii) A principal indebtedness of Ninety Five Million and No/100
Dollars ($95,000,000) to be evidenced by Note A-2, which Note A-2 will
be executed and delivered by Borrower to German American Capital
Corporation simultaneously herewith;
(iii) A principal indebtedness of Thirty Five Million and No/100
Dollars ($35,000,000) to be evidenced by Note A-3, which Note A-3 will
be executed and delivered by Borrower to German American Capital
Corporation simultaneously herewith;
(iv) A principal indebtedness of Ninety Four Million and No/100
Dollars ($94,000,000) to be evidenced by Note A-4, which Note A-4 will
be executed and delivered by Borrower to German American Capital
Corporation simultaneously herewith;
(v) A notional indebtedness of Eighty Six Million and No/100
Dollars ($86,000,000) to be evidenced by Note A-X, which Note A-X will
be executed and delivered by Borrower to German American Capital
Corporation simultaneously herewith; and
(vi) A principal indebtedness of Eighty Six Million and No/100
Dollars ($86,000,000) to be evidenced by Note B, which Note B will be
executed and delivered by Borrower to German American Capital
Corporation simultaneously herewith.
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2. Note X-0, Xxxx X-0, Xxxx X-0, Xxxx X-0, Note A-X and Note B (collectively,
the "Replacement Notes") will be executed and delivered simultaneously herewith,
in complete substitution and replacement for the Original Note and the Original
Note shall be tendered by Lender to the Borrower in exchange therefor. The
principal indebtedness evidenced by the Replacement Notes is, in the aggregate,
equal to the principal indebtedness evidenced by the Original Note and continues
to be secured by the Security Instrument.
3. Nothing contained in this Agreement or the Replacement Notes shall be deemed
to, alter the indebtedness evidenced by the Original Note which, pursuant to
this Agreement, is replaced with the Replacement Notes and continues to be
secured by the Security Instrument. Additionally, nothing contained in this
Agreement or the Replacement Notes shall be deemed a novation of the
indebtedness evidenced by the Original Note, which, pursuant to this Agreement,
is replaced in its entirety with the Replacement Notes and shall continue to be
secured by the Security Instrument.
4. This Agreement shall be governed by and construed and enforced in accordance
with the laws of the State of New York.
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IN WITNESS WHEREOF, this Agreement has been duly executed by
the parties hereto as of the date first above written.
LENDER:
GERMAN AMERICAN CAPITAL CORPORATION, a
Maryland corporation
By: /s/ Xxxxxxxxxxx Xxxxxxx
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Name: Xxxxxxxxxxx Xxxxxxx
Title: Vice President
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Authorized Signatory
BORROWER:
731 OFFICE ONE LLC, a Delaware limited
liability company
By: 731 OFFICE ONE HOLDING LLC, a Delaware
limited liability company, its sole member
By: ALEXANDER'S INC., a Delaware
corporation, its sole member
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: Assistant Secretary
