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EXHIBIT 4.03(e)
January 25, 1996
VIA FACSIMILE
(810) 362-4494 AND
VIA UPS OVERNIGHT
Commonwealth Land Title Insurance Company
900 Wilshire Drive
Suite 305
Troy, Michigan 48084
Attn: Maxine J. Lievois, Esq.
Re: FRANK'S NURSERY & CRAFTS, INC.
1. 479 EAST MAIN STREET, BRANFORD, CT
2. 361 SCOTT SWAMP ROAD, FARMINGTON, CT
3. 400 TALCOTTVILLE ROAD, VERNON, CT
4. 1198 QUEEN STREET, SOUTHINGTON, CT
5. 656 SILVER LANE, EAST HARTFORD, CT
6. ROUTE 9, WEST KIEFFER LANE, KINGSTON, NY
(COLLECTIVELY, THE "PROPERTY")
Dear Maxine:
People's Bank ("Lender") is about to lend to Frank's Nursery & Crafts, Inc.
("Borrower") the principal amount of $4,950,000 (the "Loan") to be secured by,
among other things, first priority mortgage liens encumbering the Property.
In connection with the closing of the Loan, the following executed original
documents have been or are being delivered by Lender herewith to you or at your
direction as indicated below to George Browne in your Connecticut office or to
Ken Auser in your White Plains, New York office, to be held in trust under the
escrow conditions described below:
1. Five fully executed originals of the Mortgage Deed and Security
Agreement dated as of January 25, 1996 from Borrower to Lender
(the "Connecticut Mortgage"); (sent to G. Browne)
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Commonwealth Land Title Insurance Company
January 25, 1996
Page 2
2. Five fully executed originals of the Assignment of Leases and
Rents dated as of January 25, 1996 from Borrower to Lender (the
"Connecticut Assignment"); (sent to G. Browne)
3. One UCC-1 Financing Statement naming Borrower, as debtor and
naming Lender as secured party for filing with the Office of the
Secretary of the State of Connecticut (the "Financing Statement
for Connecticut Filing"); (sent to G. Browne)
4. Five UCC-1 Financing Statement naming Borrower as debtor and
naming Lender as secured party for filing with the Town Clerks in
the following towns: Branford, Farmington, Vernon, Southington
and East Hartford, Connecticut (collectively, the "Financing
Statements for Local Filing in Connecticut"); (sent to G. Browne)
5. One fully executed original of the Mortgage and Security Agreement
dated as of January 25, 1996 from Borrower to Lender (the "New
York Mortgage"); (sent to K. Auser)
6. One fully executed original of the Assignment of Leases and Rents
dated as of January 25, 1996 from Borrower to Lender (the "New
York Assignment"); (sent to K. Auser)
7. One UCC-1 Financing Statement naming Borrower as debtor and naming
Lender as secured party for filing with the Office of the
Secretary of the State of New York (the "Financing Statement for
New York Filing"); (sent to K. Auser) and
8. One UCC-1 Financing Statement naming Borrower as debtor and naming
Lender as secured party for filing with the Office of the Ulster
County (NY) Clerk's Office (the "Financing Statement for Local
Filing in New York") (sent to K. Auser).
The foregoing documents are hereinafter sometimes collectively referred to
as the "Lender Documents").
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Commonwealth Land Title Insurance Company
January 25, 1996
Page 3
Upon receipt of the Lender Documents, you will review each document to
confirm that it has been properly executed and to the extent appropriate,
attested, witnessed and/or acknowledged, so as to allow the Lender Documents to
be recorded or filed, as appropriate.
In addition, the sum of $4,950,000.00 (the "Disbursement Amount"),
representing the Loan proceeds to be disbursed as set forth below, will be sent
to you by wire transfer, to the following bank account:
Comerica Bank
ABA No. 072000096
211 Fort Street
Detroit, MI
Phone Advise: (313) 222-3325
Credit to: Commonwealth Land Title Insurance
Company
Account No. 240100718-8
You are hereby authorized and directed to disburse the Disbursement Amount
to The Bank of New York, as Trustee, as Borrower has directed you in separate
written instructions from Borrower to you, after, and only after, the following
conditions have been satisfied:
A. Borrower shall have provided to you sufficient additional funds
necessary to pay (i) your costs and expenses in connection with
the Loan (including all recording fees, filing fees and release
fees), and (ii) all title insurance premiums in connection with
the Loan;
B. Borrower has provided you with (all necessary affidavits,
certificates, statements and tax forms as you may require as a
condition to issuing the Title Policies (as defined below);
C. You have issued or unconditionally committed to issue to Lender
the six (6) title insurance policies (the "Title Policies") in the
form of Exhibits A-1 through A-6 attached hereto. The Title
Policies must be dated no earlier than the date and time funds are
disbursed by you from the escrow established hereby and must show
no prior liens, encumbrances or exceptions to title other than
those shown in the Title Policies;
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Commonwealth Land Title Insurance Company
January 25, 1996
Page 4
D. You affirm that, notwithstanding the actual date and time of
recording and filing of the Lender Documents, the Title Policies
shall be effective as of the date and time set forth in Subsection
C above, and the Company (as that term is defined in the Title
Policies) insures against loss or damage suffered by Lender
pursuant thereto;
E. There are to be no outstanding current assessments or taxes as to
the Property which are due and payable;
F. You have signed and are holding for delivery to each of the
undersigned a copy of this letter and have sent via facsimile to
the attorneys for Lender a signed copy of this letter and have
received acknowledgment of receipt thereof;
G. You have received telephonic and facsimile confirmation from
Michael P. Byrne that all conditions to releasing the Disbursement
Amount have been satisfied;
H. You are in a position to satisfy each of the conditions set forth
in paragraphs I. through VI. below; and
I. You are holding at least $55,929,061, inclusive of the
Disbursement Amount (plus sufficient funds to pay all accrued
interest on the Master Mortgage Loan), and have been authorized by
Borrower and by all necessary third parties to pay said funds to
The Bank of New York, as Trustee, in full satisfaction of the
Master Mortgage Loan from The Bank of New York, as Trustee, to
Borrower.
If, for any reason, the conditions for disbursement of the Disbursement
Amount have not been satisfied by 3:00 p.m. EST on January 29, 1996, you shall
notify Michael P. Byrne, Esq., attorney for Lender, at (203) 977-7300, who
shall either (i) notify you to return the Disbursement Amount and the Lender
Documents to Lender, or (ii) authorize the extension of the time period for the
escrow established hereby. In addition, on the date of the disbursement of the
Disbursement Amount, you shall:
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Commonwealth Land Title Insurance Company
January 25, 1996
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I. Record with the Office of the Town Clerks for the Towns of
Branford, Farmington, Vernon, Southington and East Hartford the
following instruments in the following order: (a) the Connecticut
Mortgage; (b) the Connecticut Assignment; and (c) the Financing
Statements for Local Filing in Connecticut and pay all necessary
taxes, fees and charges in connection therewith.
II. Send for filing by overnight courier for next day delivery and
have filed on the following day with the Office of the Secretary
of the State of Connecticut the Financing Statements for
Connecticut filing and pay all necessary taxes, fees and charges
in connection therewith.
III. Record with the Office of the Clerk of Ulster County (NY) the
following instruments in the following order: (a) the New York
Mortgage; (b) the New York Assignment; and (c) the Financing
Statements for Local Filing in New York and pay all necessary
taxes, fees and charges in connection therewith.
IV. Send for filing via overnight courier for next day delivery and
have filed on the following day with the Office of the Secretary
of the State of New York the Financing Statements for New York
Filing and pay all necessary taxes, fees and charges in connection
therewith.
V. Mark all of the Lender Documents for return to Day, Berry &
Howard, One Canterbury Green, Stamford, Connecticut 06901-2047,
Attention: Michael P. Byrne, Esq.
VI. Send by overnight courier for next day delivery to Michael P.
Byrne, Esq. at the aforesaid address: (i) the original Title
Policies, (ii) a fully signed copy of this letter.
Please indicate your acknowledgment of and agreement to comply with these
instructions by signing a copy of this letter in the space provided below and
returning it as provided herein.
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Commonwealth Land Title Insurance Company
January 25, 1996
Page 6
This letter may be executed in counterparts and delivered by facsimile
transmission, which together shall constitute but one agreement binding upon
the parties hereto.
Very truly yours,
PEOPLE'S BANK
By: Day, Berry & Howard
Its Attorney
By: Michael P. Byrne
---------------------
Michael P. Byrne
FRANK'S NURSERY & CRAFTS, INC.
By: Robert M. Lovejoy Jr.
-------------------------
Robert M. Lovejoy, Jr.
Its Vice President
Acknowledged and agreed
this 25th day of January 1996.
COMMONWEALTH LAND TITLE INSURANCE COMPANY
By: Maxine Lievois
------------------
Maxine Lievois
Its Vice President
MPB:rcc
cc: William Edwards
George Browne, Esq.
Lauren Cato, Esq.
Hildi E. Todrin
Marjan N. Murray
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Commonwealth Land Title Insurance Company
January 25, 1996
Page 6
This letter may be executed in counterparts and delivered by facsimile
transmission, which together shall constitute but one agreement binding upon
the parties hereto.
Very truly yours,
PEOPLE'S BANK
By: Day, Berry & Howard
Its Attorney
By: Michael P. Byrne
---------------------
Michael P. Byrne
FRANK'S NURSERY & CRAFTS, INC.
By: Robert M. Lovejoy Jr.
-------------------------
Robert M. Lovejoy, Jr.
Its Vice President
Acknowledged and agreed
this 25th day of January 1996.
COMMONWEALTH LAND TITLE INSURANCE COMPANY
By:Maxine Lievois
Maxine Lievois
Its Vice President
MPB:rcc
cc: William Edwards
George Browne, Esq.
Lauren Cato, Esq.
Hildi E. Todrin
Marjan N. Murray