Exhibit 10.57
AMENDED AND RESTATED PROMISSORY NOTE
March 10, 2009
Queens, New York
$78,245,641.77
FOR VALUE RECEIVED,
ALEXANDER’S REGO SHOPPING CENTER INC., a Delaware corporation
with an office at c/o Vornado Realty Trust, 888 Seventh Avenue, New
York, New York 10019 (“ Maker ”), hereby
promises to pay to the order of U.S. BANK NATIONAL ASSOCIATION, a
national bank chartered under the laws of the United States of
America with an office at One Post Office Square, 29 th
Floor, Boston, Massachusetts 02109 (“ Bank ”),
or any subsequent holder hereof, the principal sum of SEVENTY-EIGHT
MILLION TWO HUNDRED FORTY-FIVE THOUSAND SIX HUNDRED FORTY-ONE
DOLLARS AND 77/100 ($78,245,641.77) or so much thereof as may have
been advanced to or for the benefit of Maker and remains unpaid
from time to time (hereinafter called “ Principal
Balance ”), with interest on the Principal Balance, until
paid in full, at the rates per annum hereinafter specified, in coin
or currency, which, at the time or times of payment, is legal
tender for the payment of public and private debts in the United
States of America, all in accordance with the terms hereinafter set
forth. All interest payable hereunder shall be computed on the
basis of a 360 day year, but shall be charged for the actual number
of days principal is unpaid.
Bank is the owner and holder of a
certain Promissory Note from Maker dated May 12, 1999, in the
original principal amount of $82,000,000 originally payable to The
Chase Manhattan Bank, and endorsed to the order of Bank (“
Existing Note ”). This Note amends and restates the
indebtedness previously evidenced by the Existing Note. Maker
intends, and Bank, by its acceptance of this Note, agrees, that the
indebtedness previously evidenced by the Existing Note remains
outstanding, but such indebtedness shall henceforth be evidenced by
this Note, and the terms and conditions concerning Maker’s
obligation to repay said indebtedness and interest thereon shall be
governed by the provisions of this Note and the other documents and
instruments evidencing and securing this Note (the “ Loan
Documents ”). Neither the execution, delivery or
acceptance of this Note nor any of the terms and provisions set
forth herein shall be deemed or construed to effect a novation or
to cause all or any part of the indebtedness previously evidenced
by the Existing Note, or the liability of any person with respect
thereto or any security therefor, to be, or to be deemed to have
been, paid, satisfied or discharged.
1 .
Payment Location . All payments of principal and interest
under this Note shall be made in lawful money of the United States
of America in immediately available funds to Bank at Bank’s
office at One Post Office Square, 29th Floor, Boston, Massachusetts
02109, Attention: Real Estate Banking Division, or at such other
place as may be designated by Bank to Maker in writing.
2.
Capitalized Terms . Unless the context otherwise indicates,
capitalized terms not otherwise defined herein shall have the
meanings provided for such terms in that certain Loan Agreement of
even date herewith by and between Maker and Bank (hereinafter as it
may be amended, modified or supplemented from time to time called
the “ Loan Agreement ”).
3.
Payments. This Note shall be payable by Maker to Bank as
follows:
(a) Subject
to the provisions of Paragraph 4(b) below, interest accruing in
accordance herewith shall be payable, as accrued, on the first day
of each calendar month hereafter until the principal of the Loan is
paid in full, commencing on the first day of the month next
following the month in which the Closing occurs.
(b) The
entire unpaid Principal Balance and all interest accrued thereon,
together with all other amounts then due and payable under the
other Loan Documents, shall be due and payable in full on the
Maturity Date.
(c) Except
as otherwise provided in the succeeding sentence, from and after
the date hereof, and until the date on which this Note is paid in
full, Maker shall pay interest on the Principal Balance at the Loan
Rate. The Loan Agreement provides for interest at a Default Rate
and for late payment charges on the conditions set forth
therein.
(d) No
payment of interest or other consideration made or agreed to be
made by Maker pursuant to this Note or any other instrument
referring to or securing this Note shall, at any time, be deemed to
have been computed at an interest rate in excess of the maximum
rate of interest permissible by law, if any. In the event such
payments of interest or other consideration provided for in this
Note or any other instrument referring to or securing this Note
shall result in payment of an effective rate of interest which, for
any period of time, is in excess of the limit of the usury law or
any other law applicable to the loan evidenced hereby, all sums in
excess of those lawfully collectible as interest for the period in
question shall, without further agreement or notice between or by
any party or parties hereto, be applied to the Principal Balance
immediately upon receipt of such monies by Bank with the same force
and effect as though Maker had specifically designated, and Bank
had agreed to accept, such extra payments as a principal payment,
without premium or penalty. If the Principal Balance has been fully
paid, any such excess amount shall be refunded to Maker. This
provision shall control over every other obligation of Maker
hereunder and under any instrument which secures this Note;
and
(e) Otherwise,
all payments made hereunder shall be applied to amounts due in
accordance with the Loan Agreement.
4.
Prepayments . The Principal Balance and accrued interest
thereon may be prepaid in full or in part as provided in Section
1.3 of the Loan Agreement and subject to any fees payable under
Section 1.4 of the Loan Agreement.
5.
Security . The payment and performance of this Note is
secured by the lien of that certain Amended and Restated Mortgage,
Security Agreement, Fixture Filing and Assignment of Leases and
Rents, of even date herewith (the “ Mortgage ”)
which constitutes a single first priority lien on Maker’s fee
interest in certain real property located at 96-05 Queens
Boulevard, in the Borough of Queens, County of Queens and State of
New York (the “ Property ”), and by other
documents (herein collectively referred to as the “ Other
Security Documents ”), all of even date herewith; and is
further secured by a Cash Pledge Agreement of even date herewith
from Maker (the “ Pledge ”). The Mortgage, the
Other Security Documents, and Pledge are sometimes herein
collectively called “ Security Documents .”
Advances of the sums evidenced by this Note are to be made pursuant
to the Loan Agreement. All of the agreements, conditions,
covenants, warranties, representations, provisions and stipulations
made by or imposed upon Maker under the Security Documents are
hereby made a part of this Note to the same extent and with the
same force and effect as if they were fully set forth herein, and
Maker covenants and
agrees to keep and perform the same,
or cause them to be kept and performed, strictly in accordance with
their terms. This Note is given for business purposes and none of
the proceeds of the loan evidenced hereby or this Note will be used
for personal, family or household purposes.
Each Maker, co-maker, endorser,
surety and guarantor hereby guaranties payment of this Note, and
waives demand for payment, presentment for payment, notice of
nonpayment, protest, notice of protest, notice of dishonor, notice
of intention to accelerate maturity, notice of acceleration of
maturity, notice of intent to foreclose on any collateral securing
this Note, all other notices as to this Note other than notices
expressly required under the Loan Documents, diligence in
collection as to each and every payment due hereunder, and all
other requirements necessary to charge or hold such person
or
