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ENVIRONMENTAL INDEMNITY
This ENVIRONMENTAL INDEMNITY, is made as of February 13, 2004
(this AGREEMENT), by ALEXANDER'S INC., a
Delaware corporation (GUARANTOR) and
731 Office One LLC, a Delaware limited
liability company (BORROWER, and,
collectively with Guarantor, INDEMNITOR),
each having an address for notice
purposes 888 Seventh Avenue, New York, New
York 10019, for the benefit of GERMAN
AMERICAN CAPITAL CORPORATION, a Maryland
corporation (LENDER), having an office
at 60 Wall Street, New York, New York
10005.
W I T N E S S E T H:
WHEREAS, Borrower is the owner of a fee simple interest in the
real property commonly known as Office Unit
1 and Office Unit 2 of the Beacon
Court Condominium located at 731 Lexington
Avenue, New York, New York, and more
particularly described on Exhibit A
attached hereto and incorporated herein (the
PROPERTY);
WHEREAS, on the date hereof, in accordance with the terms of a
Loan and Security Agreement, dated as of
the date hereof (as the same may be
amended and supplemented from time to time,
the LOAN AGREEMENT), between Lender,
as lender, and Borrower, as borrower,
Lender is making a loan to Borrower in the
principal amount of $400,000,000 (the
LOAN), which Loan is evidenced by that
certain Amended, Restated and Consolidated
Note, dated as of the date hereof (as
the same may be amended, substituted,
replaced, exchanged and supplemented from
time to time, the NOTE), made by and
between Borrower and Lender and secured by
that certain Amended, Restated and
Consolidated Mortgage, Security Agreement,
Financing Statement and Assignment of
Leases, Rents and Security Deposits, dated
as of the date hereof (as the same may be
amended and supplemented from time to
time, the SECURITY INSTRUMENT), by and
between Borrower and Lender and the other
Loan Documents (as defined in the Loan
Agreement);
WHEREAS, Guarantor is an affiliate of Borrower and will derive
substantial benefit from the Loan;
WHEREAS, as a condition to making the Loan, Lender has
required Indemnitor to deliver this
Agreement for the benefit of Lender;
WHEREAS, the forgoing recitals are intended to form an
integral part of this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises,
Ten Dollars ($10.00) paid in hand, and
other good and valuable consideration,
the receipt and sufficiency of which are
hereby acknowledged, Indemnitor agrees
as follows:
Section 1. Definitions.
(a) The
following terms shall have the meaning
ascribed thereto:
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AGREEMENT: Shall have the meaning provided in the first
paragraph.
BORROWER: Shall have
the meaning provided in the Recitals.
ENVIRONMENTAL LAW: Shall have the meaning provided in the Loan
Agreement.
GUARANTOR: Shall have the meaning provided in the Recitals.
HAZARDOUS MATERIALS: Shall have the meaning provided in the
Loan Agreement.
INDEMNIFIED PARTIES: Shall mean Lender, its parent,
subsidiaries and affiliates, each of their
respective shareholders, directors,
officers, employees and agents, and the
successors and assigns of any of them;
and "Indemnified Party" shall mean any one
of the Indemnified Parties.
INDEMNITOR: Shall have the meaning provided in the first
paragraph.
LENDER: Shall have the meaning provided in the first
paragraph.
LOAN AGREEMENT: Shall have the meaning provided in the
Recitals.
NOTE: Shall have the
meaning provided in the Recitals.
RELEASE: Shall mean any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting,
escaping, leaching, dumping, or
discarding, abandoning, or disposing into
the environment in violation of
applicable Environmental Law.
SECURITY INSTRUMENT: Shall have the meaning provided in the
Recitals.
STORING: Shall mean any storing or burying of any Hazardous
Materials into the environment in violation
of applicable Environmental Law.
TERMINATION EVENT: Shall mean the first to occur of:
satisfaction in full of the Obligations (as
defined in the Security Instrument);
Lender or Lender's agents or any receiver
appointed by or at the request of
Lender taking possession of the Property by
foreclosure; or Lender or any Lender
nominee acquiring title to the Property by
foreclosure, conveyance of a deed in
lieu of foreclosure or otherwise.
THREAT OF RELEASE: Shall mean a substantial likelihood of a
Release which requires action to prevent or
mitigate damage to the environment
which may result from such Release.
(b)
Capitalized terms used but not otherwise
defined herein shall have the respective
meanings given thereto in the Loan
Agreement, unless otherwise expressly
provided herein. All references to
sections shall be deemed to be references
to sections of this Agreement, unless
otherwise indicated.
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Section 2. Indemnity Agreement. Indemnitor covenants and
agrees, at its sole cost and expense, to
indemnify, defend (at trial and
appellate levels and with attorneys,
consultants and experts selected by
Indemnitor and reasonably acceptable to
Lender) and hold each Indemnified Party
harmless against and from any and all
liens, damages, losses, liabilities,
obligations, settlement payments,
penalties, assessments, citations, directives,
claims, litigation, demands, defenses,
judgments, suits, proceedings, costs,
disbursements or expenses of any kind or of
any nature whatsoever (including,
without limitation, but subject to the
provisions hereof, reasonable attorneys',
consultants' and experts' fees and
disbursements incurred in investigating,
defending against, settling or prosecuting
any claim, litigation or proceeding
but excluding any lost profits) which may
at any time be imposed upon, incurred
by or asserted or awarded against such
Indemnified Party or the Property and,
and arising directly or indirectly from or
out of: (A) the Release, Storing or
Threat of Release of any Hazardous
Materials in, on or affecting all or any
portion of the Property or any surrounding
areas, regardless of whether or not
caused by or within the control of Borrower
or Indemnitor, first occurring prior
to (but need not be discovered prior to) a
Termination Event; (B) the violation
of any applicable Environmental Laws
relating to or affecting the Property or
Borrower, whether or not caused by or
within the control of Borrower or
Indemnitor first occurring prior to (but
need not be discovered prior to) a
Termination Event; (C) the failure of
Indemnitor to comply with the terms and
conditions of this Agreement; (D) the
violation of any applicable Environmental
Laws in connection with other real property
of Borrower or Indemnitor which
gives or is reasonably likely to give rise
to any rights whatsoever in any party
with respect to the Property by virtue of
any Environmental Laws; or (E) the
enforcement of this indemnity, in a
commercially reasonable manner, including,
without limitation, (i) the costs of
assessment, containment and/or removal of
any and all Hazardous Materials from all or
any portion of the Property or any
surrounding areas to the extent such
Hazardous Materials existed (but need not
have been discovered) at the Property prior
to a Termination Event and to the
extent required by any applicable
Environmental Laws, (ii) the costs of any
actions required under Applicable Laws to
be taken in response to a Release,
Storing or Threat of Release of any
Hazardous Materials in, on or affecting all
or any portion of the Property or any
surrounding areas to prevent or minimize
such Release, Storing or Threat of Release
so that it does not migrate or
otherwise cause or threaten danger to
present or future public health, safety,
welfare or the environment to the extent
such Hazardous Materials existed (but
need not have been discovered) at the
Property prior to a Termination Event, and
(iii) costs incurred to comply with
applicable Environmental Laws in connection
with all or any portion of the Property or
(to the extent any condition
originating on the Property requires
compliance with applicable Environmental
Laws in connection with any surrounding
areas) with any surrounding areas to the
extent Hazardous Materials existed (but
need not have been discovered) at the
Property prior to a Termination Event.
Indemnitor's obligations hereunder are
separate and distinct from its obligations
under the Loan Documents, and
Lender's and the other Indemnified Parties'
rights under this Agreement shall be
in addition to all rights of Lender under
the Loan Documents. If any such action
or other proceeding shall be brought
against Lender, upon written notice from
Indemnitor to Lender (given reasonably
promptly following Lender's notice to
Indemnitor of such action or proceeding),
Indemnitor shall be entitled to assume
the defense thereof, at
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Indemnitor's expense, with counsel
reasonably acceptable to Lender; provided,
however, Lender may, at its own expense,
retain separate counsel to participate
in such defense, but such participation
shall not be deemed to give Lender a
right to control such defense, which right
Indemnitor expressly retains.
Notwithstanding the foregoing, each
Indemnified Party shall have the right to
employ separate counsel at Indemnitor's
expense if, in the reasonable opinion of
legal counsel, a conflict or potential
conflict exists between the Indemnified
Party and Indemnitor and/or the other
Indemnified Parties, as the case may be,
that would make such separate
representation advisable. Notwithstanding the
foregoing, Indemnitor shall have no
liability under this Agreement if the liens,
damages, losses, liabilities, obligations,
settlement payments, penalties,
assessments, citations, directives, claims,
litigation, demands, defenses,
judgments, suits, proceedings, costs,
disbursements or expenses of any kind or
of any nature whatsoever are due to the
gross negligence or willful misconduct
of Lender.
Section 3. Survival.
(a) This
Agreement and the indemnities provided
herein shall survive the repayment of the
Loan and, subject to the terms of such
indemnity, any exercise of any remedies
under the Loan Documents, including
without limitation, any remedy in the
nature of foreclosure for the period of
five (5) years immediately following a
Termination Event, and shall not merge
with any assignment or conveyance given by
Borrower to Lender in lieu of
foreclosure.
(b) It is
agreed and intended by Indemnitor and
Lender that this Agreement and the
Indemnities provided herein may be assigned
or otherwise transferred by Lender to its
successors and assigns and to any
subsequent purchaser of all or any portion
of the Loan by, through or under
Lender, without notice to Indemnitor and
without any further consent of
Indemnitor. To the extent consent of any
such permitted assignment or transfer
is required by law, advance consent to any
such assignment or transfer is hereby
given by Indemnitor in order to maximize
the extent and effect of the indemnity
given hereby.
Section 4. Miscellaneous.
(a) No Waiver.
The liabilities of Indemnitor
under this Agreement shall in no way be
limited or impaired by, and Indemnitor
hereby consents to and agrees to be bound
by, any amendment or modification of
the provisions of the Loan Documents to or
with Lender by Borrower or any Person
who succeeds Borrower or any other Person
as owner of any portion of the
Property. In addition, notwithstanding any
terms of any of the Loan Documents to
the contrary, the liability of Indemnitor
under this Agreement shall in no way
be limited or impaired by: (i) any
extensions of time for performance required
by any of the Loan Documents; (ii) any
sale, assignment or foreclosure of the
Note or the Loan Documents or any sale or
transf
