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Document Preview Building Loan Mortgage, Assignment of Leases and Rents and Security Agreement [Consolidated, Amended and Restated] |
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Title: |
Building Loan Mortgage, Assignment of Leases and Rents and Security Agreement [Consolidated, Amended and Restated] |
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Entities: |
Alexander’s Inc.; First Union National Bank; Wachovia Bank, NA; Cadwalader, Wickersham & Taft; Proskauer Rose LLP |
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Date: |
2002 |
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Size: |
Preview shows 17KB of 130KB total |
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Price: |
$58 |
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ID: |
#270837 |
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================================================================================
731 Commercial LLC and 731 RESIDENTIAL LLC, each a Delaware limited
liability company, together as mortgagor
(Mortgagor)
to
BAYERISCHE HYPO- UND VEREINSBANK,
AG, NEW YORK BRANCH, as Agent, as mortgagee
(Mortgagee)
--------------------------
CONSOLIDATED, AMENDED AND RESTATED
BUILDING LOAN MORTGAGE, ASSIGNMENT OF LEASES AND RENTS AND
SECURITY AGREEMENT (SERIES NO. 1)
--------------------------
Dated: As of July 3, 2002
Location: 731 Lexington Avenue
New York, New York
County: New York County
PREPARED BY AND UPON
RECORDATION RETURN TO:
Cadwalader, Wickersham & Taft
100 Maiden Lane
New York, New York 10038
Attention: John M. Zizzo
================================================================================
{PAGE}
TABLE OF CONTENTS
{TABLE}
{CAPTION}
Page
----
{S} {C}
Article 1 - GRANTS OF SECURITY
Section 1.1 Property Mortgaged....................................... 2
Section 1.2 Assignment of Rents...................................... 6
Section 1.3 Security Agreement....................................... 6
Section 1.4 Fixture Filing........................................... 7
Section 1.5 Pledges of Monies Held................................... 7
Article 2 - DEBT AND OBLIGATIONS SECURED
Section 2.1 Debt..................................................... 8
Section 2.2 Other Obligations........................................ 8
Section 2.3 Debt and Other Obligations............................... 8
Article 3 - MORTGAGOR COVENANTS
Section 3.1 Payment of Debt.......................................... 8
Section 3.2 Incorporation by Reference............................... 8
Section 3.3 Insurance................................................ 8
Section 3.4 Maintenance of Property.................................. 8
Section 3.5 Waste.................................................... 9
Section 3.6 Payment for Labor and Materials.......................... 9
Section 3.7 Performance of Other Agreements.......................... 9
Section 3.8 Change of Name, Identity or Structure.................... 10
Article 4 - OBLIGATIONS AND RELIANCES
Section 4.1 Relationship of Mortgagor and Mortgagee.................. 10
Section 4.2 No Reliance on Mortgagee................................. 10
Section 4.3 No Mortgagee Obligations................................. 10
Section 4.4 Reliance................................................. 11
Article 5 - FURTHER ASSURANCES
Section 5.1 Recording of Security Instrument, etc.................... 11
Section 5.2 Further Acts, etc........................................ 11
Section 5.3 Changes in Tax, Debt, Credit and Documentary Stamp Laws.. 12
Section 5.4 Splitting of Mortgage.................................... 12
Section 5.5 Replacement Documents.................................... 13
{/TABLE}
-i-
{PAGE}
{TABLE}
{S} {C}
Article 6 - DUE ON SALE/ENCUMBRANCE
Section 6.1 Mortgagee Reliance....................................... 13
Section 6.2 No Transfer.............................................. 13
Section 6.3 Transfer Defined......................................... 13
Section 6.4 Mortgagee's Rights....................................... 13
Article 7 - RIGHTS AND REMEDIES UPON DEFAULT
Section 7.1 Remedies................................................. 14
Section 7.2 Application of Proceeds.................................. 16
Section 7.3 Right to Cure Defaults................................... 17
Section 7.4 Actions and Proceedings.................................. 17
Section 7.5 Recovery of Sums Required to Be Paid..................... 17
Section 7.6 Examination of Books and Records......................... 17
Section 7.7 Other Rights, Etc........................................ 17
Section 7.8 Right to Release Any Portion of the Property............. 18
Section 7.9 Intentionally Omitted.................................... 18
Section 7.10 Recourse and Choice of Remedies.......................... 18
Section 7.11 Right of Entry........................................... 19
Article 8 - RESERVED
Article 9 - INDEMNIFICATION
Section 9.1 General Indemnification.................................. 19
Section 9.2 Mortgage and/or Intangible Tax........................... 20
Section 9.3 ERISA Indemnification.................................... 20
Section 9.4 Duty to Defend; Attorneys' Fees and Other Fees and
Expenses................................................ 21
Article 10 - WAIVERS
Section 10.1 Waiver of Counterclaim................................... 22
Section 10.2 Marshalling and Other Matters............................ 22
Section 10.3 Waiver of Notice......................................... 22
Section 10.4 Waiver of Statute of Limitations......................... 22
Section 10.5 Survival................................................. 22
Section 10.6 Insurance, Casualty and Condemnation..................... 23
{/TABLE}
-ii-
{PAGE}
{TABLE}
{S} {C}
Article 11 - INTENTIONALLY OMITTED
Article 12 - NOTICES
Article 13 - APPLICABLE LAW
Section 13.1 GOVERNING LAW............................................ 23
Section 13.2 Usury Laws............................................... 25
Section 13.3 Provisions Subject to Applicable Law..................... 25
Article 14 - DEFINITIONS
Article 15 - MISCELLANEOUS PROVISIONS
Section 15.1 No Oral Change........................................... 26
Section 15.2 Successors and Assigns................................... 26
Section 15.3 Inapplicable Provisions.................................. 26
Section 15.4 Headings, etc............................................ 26
Section 15.5 Number and Gender........................................ 26
Section 15.6 Subrogation.............................................. 26
Section 15.7 Entire Agreement......................................... 27
Section 15.8 Limitation on Mortgagee's Responsibility................. 27
Section 15.9 Building Loan Agreement.................................. 27
Section 15.10 Limitation on Liability.................................. 27
Article 16 - STATE-SPECIFIC PROVISIONS
Section 16.1 Principles of Construction............................... 27
Section 16.2 Commercial Property...................................... 27
Section 16.3 Maximum Debt Secured..................................... 28
Section 16.4 Insurance Proceeds....................................... 28
Section 16.5 Trust Fund............................................... 28
Section 16.6 Section 291f Agreement................................... 28
Section 16.7 Power of Sale............................................ 29
EXHIBIT A - LEGAL DESCRIPTION
{/TABLE}
-iii-
{PAGE}
CONSOLIDATED, AMENDED AND RESTATED
BUILDING LOAN MORTGAGE, ASSIGNMENT OF LEASES AND RENTS AND
SECURITY AGREEMENT (SERIES NO. 1)
THIS CONSOLIDATED, AMENDED AND RESTATED BUILDING LOAN MORTGAGE, ASSIGNMENT
OF LEASES AND RENTS AND SECURITY AGREEMENT (SERIES NO. 1) (this "SECURITY
INSTRUMENT") is made as of this 3rd day of July, 2002, by 731 COMMERCIAL LLC and
731 RESIDENTIAL LLC, each a Delaware limited liability company, and each having
its principal place of business at c/o Alexander's, Inc., 888 Seventh Avenue,
New York, New York 10019, together as mortgagor (together, "MORTGAGOR") for the
benefit of Bayerische Hypo- Und Vereinsbank, AG, New York Branch ("HVB"), a bank
organized under the laws of the Federal Republic of Germany, having an address
at 150 East 42nd Street, New York, New York 10017, as agent ("AGENT") for itself
and other co-lenders that may exist from time to time (together with HVB,
collectively "LENDER"), as mortgagee ("MORTGAGEE").
This Security Instrument consolidates, amends and restates in their
entirety the mortgages described on the Schedule of Mortgages attached hereto
and made a part hereof which are each now held by Agent (the "PRIOR Mortgages"),
to form a single lien in the consolidated principal sum of $55,500,000.00.
W I T N E S S E T H:
WHEREAS, this Security Instrument is given to secure a building loan (the
"BUILDING LOAN") in the principal sum of FIFTY FIVE MILLION FIVE HUNDRED
THOUSAND AND NO/100 DOLLARS ($55,500,000.00) as is stated in that certain
Building Loan Agreement dated as of the date hereof between Mortgagor and
Mortgagee (as the same may be amended, restated, replaced, supplemented or
otherwise modified from time to time, the "BUILDING LOAN AGREEMENT") and
evidenced by those certain Consolidated, Amended and Restated Building Loan
Notes in the aggregate principal amount of the Building Loan, dated the date
hereof, made by Mortgagor to each Lender according to their respective Ratable
Shares (such Building Loan Notes, together with all extensions, renewals,
replacements, restatements or modifications thereof being hereinafter
collectively referred to as the "BUILDING LOAN NOTE");
WHEREAS, Mortgagor desires to secure the payment of the Debt and the
performance of all of its obligations under the Building Loan Note, the Building
Loan Agreement and the other Building Loan Documents; and
WHEREAS, this Security Instrument is given pursuant to the Building Loan
Agreement, and payment, fulfillment, and performance by Mortgagor of its
obligations thereunder and under the other Building Loan Documents are secured
hereby, and each and every term and provision of the Building Loan Agreement and
the Building Loan Note, including the rights, remedies, obligations, covenants,
conditions, agreements, indemnities, representations and warranties of the
parties therein, are hereby incorporated by reference herein as though set forth
in full and shall be considered a part of this Security Instrument (the Building
Loan Agreement, the Building Loan Note, this Security Instrument, that certain
Assignment of Leases and Rents (Building Loan) of even date herewith made by
Mortgagor in favor of Mortgagee (the
{PAGE}
"ASSIGNMENT OF LEASES") and all other documents evidencing or securing the Debt
or delivered in connection with the making of and pertaining to the Building
Loan are hereinafter referred to collectively as the "BUILDING LOAN DOCUMENTS").
NOW THEREFORE, in consideration of the making of the Building Loan by
Lenders and the covenants, agreements, representations and warranties set forth
in this Security Instrument:
Article 1 - GRANTS OF SECURITY
SECTION 1.1 PROPERTY MORTGAGED . Mortgagor does hereby irrevocably
mortgage, grant, bargain, sell, pledge, assign, warrant, transfer and convey to
Mortgagee and its successors and assigns the following property, rights,
interests and estates, whether now owned or hereafter acquired by Mortgagor,
(collectively, the "PROPERTY"):
(a) Land. The real property described in Exhibit A attached hereto
and made a part hereof (the "LAND");
(b) Additional Land. All additional lands, estates and development
rights hereafter acquired by Mortgagor for use in connection with the Land and
the development of the Land and all additional lands and estates therein which
may, from time to time, by supplemental mortgage or otherwise be expressly made
subject to the lien of this Security Instrument;
(c) Improvements. The buildings, structures, fixtures, additions,
enlargements, extensions, modifications, repairs, replacements and
improvements now or hereafter erected or located on the Land (collectively,
the "IMPROVEMENTS");
(d) Easements. All easements, rights-of-way or use, rights, strips and
gores of land, streets, ways, alleys, passages, sewer rights, water, water
courses, water rights and powers, air rights and development rights, and all
estates, rights, titles, interests, privileges, liberties, servitudes,
tenements, hereditaments and appurtenances of any nature whatsoever, in any way
now or hereafter belonging, relating or pertaining to the Land and the
Improvements and the reversion and reversions, remainder and remainders, and all
land lying in the bed of any street, road or avenue, opened or proposed, in
front of or adjoining the Land, to the center line thereof and all the estates,
rights, titles, interests, dower and rights of dower, curtesy and rights of
curtesy, property, possession, claim and demand whatsoever, both at law and in
equity, of Mortgagor of, in and to the Land and the Improvements and every part
and parcel thereof, with the appurtenances thereto;
(e) Equipment. All "equipment," as such term is defined in Article 9 of
the Uniform Commercial Code (as hereinafter defined), now owned or hereafter
acquired by Mortgagor, which is used at or in connection with the Improvements
or the Land or is located thereon or therein (including, but not limited to, all
machinery, equipment, furnishings, and electronic data-processing and other
office equipment now owned or hereafter acquired by Mortgagor and any and all
additions, substitutions and replacements of any of the foregoing), together
with all attachments, components, parts, equipment and accessories installed
thereon or affixed thereto (collectively, the "EQUIPMENT"). Notwithstanding the
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