AMENDED AND RESTATED COMPANY LEASE AGREEMENT (FACILITY REALTY)
THIS AMENDED AND RESTATED COMPANY LEASE AGREEMENT (FACILITY REALTY), made
as of the first day of May, 1996 (this "Company Lease"), by and between THE
EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES, a corporation organized
and existing under and by virtue of the laws of the State of New York, having an
office at 787 Seventh Avenue, New York, New York 10019, party of the first part
(the "Company"), and NEW YORK CITY INDUSTRIAL DEVELOPMENT AGENCY, a corporate
governmental agency constituting a body corporate and politic and a public
benefit corporation of the State of New York, duly organized and existing under
the laws of the State of New York, having its principal office at 110 William
Street, New York, New York 10038, party of the second part (the "Agency")
(capitalized terms used in this Company Lease and not defined herein shall have
the respective meanings assigned to such terms in the Lease Agreement or the
Indenture referred to below), which amends and restates a certain Interim Lease
Agreement, dated as of December 29, 1995, between the Company and the Agency
(the "Interim Lease Agreement"):
WITNESSETH:
WHEREAS, the Company has advised each of the Agency and the appropriate
officials of The City of New York (the "City") as follows: that the Company
currently leases approximately 1,500,000 square feet of space at six locations
throughout the City, which leases begin to expire in late 1996; that the Company
desired to consolidate its locations for a more efficient operation and to
reduce its overall occupancy costs; that the Company had been analyzing
alternative locations for its offices outside of the City (in particular, in
Westchester) and determined that remaining in the City would cost the Company
approximately $63,500,000 more than relocating and leasing space in Westchester;
that in order to induce the Company to retain its offices within the City and to
reduce the competitive cost differential, the Agency and appropriate officials
of the City entered into negotiations with the Company to secure satisfactory
public financial incentives and thereby induce the Company to consolidate its
existing operations within the City; that financial assistance from the Agency
in the form of sales and/or use tax exemptions for the Project (as defined
below) is a vital element in bridging the cost differential between the New York
City and Westchester locations and retaining the operations in New York City and
the sales tax benefits will help lower the Company's cost of doing business in
New York City and obviate the need to relocate to Westchester; and that based
upon the public financial incentives provided through the Agency, the Company
desires to proceed with the Project in the City; and
WHEREAS, the Company and representatives of the City and of the Agency
commenced discussions in order to induce the Company, among other things, to
acquire a leasehold interest in that certain building known as 1290 Avenue of
the Americas, New York, New York (the "Project Building"), to induce the Company
to construct from time to time leasehold improvements and renovations to a
portion of those premises within the Project Building to be leased to the
Company, and to acquire, lease, sublease, license, sublicense, install,
maintain, repair and replace furniture, machinery, equipment, and certain other
tangible personal property for use at Approved Equitable City Locations, all for
use by the Company as its corporate headquarters and for the providing of
financial services, insurance and related operations by the Company and by
Equitable Variable Life Insurance Company, a New York corporation ("EVLICO") and
an affiliate of the Company (the "Project") within the City; and
WHEREAS, to accomplish its corporate purposes, the Agency entered into
negotiations with the Company to induce the Company and EVLICO to proceed with
the Project; and
WHEREAS, 1290 Associates (the "Prime Landlord"), the owner of the Project
Building, pursuant to an Agreement of Lease dated July 20, 1995 between the
Prime Landlord and the Company (as the same has been and may hereafter be
amended, the "Prime Lease"), has leased certain premises within the Project
Building to the Company (the "Leased Premises"); and
WHEREAS, the Company now wishes to sublease a portion of the Leased
Premises (such portion being referred to as the "Facility Realty") to the Agency
on the terms and conditions set forth in this Company Lease; and
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WHEREAS, pursuant to an Amended and Restated Lease Agreement (Project
Property) of even date herewith (the "Lease Agreement"), the Facility Realty is
to be sub-subleased, and the remainder of the Project Property is to be leased,
by the Agency to the Company and EVLICO for use by the Company and by EVLICO and
for incidental use thereof in the ordinary course of business by a direct or
indirect parent corporation of the Company or by other entities which are direct
or indirect subsidiaries of the Company; and
WHEREAS, the Agency, in order to provide funds for a portion of the cost of
the Project, will issue and sell from time to time, in one or more Series, its
Industrial Development Revenue Bonds (The Equitable Life Assurance Society of
the United States Project) (the "Bonds") in an aggregate principal amount of up
to $156,000,000 pursuant to the Act, a resolution of the Agency adopted on March
12, 1996, Certificates of Determination of the Agency, an Indenture of Trust of
even date herewith (the "Indenture") between the Agency and United States Trust
Company of New York, as trustee (the "Trustee"), and a Bond Supplemental
Indenture of Trust of even date herewith between the Agency and the Trustee; and
WHEREAS, the Company and the Agency desire hereby to amend and restate in
its entirety the Interim Lease Agreement;
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants and representations hereinafter contained, the Company and the Agency
hereby agree as follows (provided that in the performance of the agreements of
the Agency herein contained, any obligation it may incur for the payment of
money shall not subject the Agency to any pecuniary or other liability nor
create a debt of the State or of the City, and neither the State nor the City
shall be liable on any obligation so incurred, but any such obligation shall be
payable by the Agency solely out of the lease rentals, revenues and receipts
payable by the Company under the Lease Agreement):
ARTICLE I
The Company does hereby lease to the Agency and the Agency hereby leases
from the Company the Facility Realty for the term herein provided and for use as
provided in the Lease Agreement.
The Company and the Agency agree that in the event that any portion of the
Project Building shall be added to the Facility Realty pursuant to Section 6.18
of the Lease Agreement, such portion shall thereupon be made subject to the
terms of this Company Lease.
The Company and the Agency further agree that in the event that any portion
of the Facility Realty shall be released from the leasehold estate of this
Company Lease and of the Lease Agreement as contemplated in Sections 5.1, 6.17,
7.2 and 9.3 of the Lease Agreement, that portion of the Facility Realty shall
cease from such time to be a part of the Facility Realty subject to the terms of
this Company Lease. In the event of any such release, the Company and the Agency
each agree at the request of the other to execute an amendment to this Company
Lease confirming that portion of the Facility Realty is no longer subject to the
provisions of this Company Lease, but the failure of either party to execute or
deliver such amendment shall not affect the release and the fact that such
portion of the Facility Realty is no longer subject to the provisions of this
Company Lease.
ARTICLE II
The term of this Company Lease shall commence on May 13, 1996 and expire on
the earliest of (i) December 31, 2011, (ii) the expiration or earlier
termination of the Prime Lease or the Lease Agreement, (iii) the assignment by
the Company of all or substantially all of its interest in the Prime Lease, or
(iv) the payment in full of the Bonds (whether at maturity or earlier redemption
or upon defeasance or discharge of the lien of the Indenture as provided in
Section 10.01 thereof) so that the Bonds shall cease to be Outstanding under the
Indenture.
ARTICLE III
The sole rental hereunder shall be the single sum of ten dollars ($10),
receipt of which is hereby acknowledged by the Company.
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ARTICLE IV
The Company hereby delivers possession to the Agency of the Facility
Realty.
ARTICLE V
The Company represents and warrants that it has full right and lawful
authority to enter into this Company Lease for the full term hereof, that the
execution and delivery by the Company of this Company Lease and the performance
by the Company of its obligations under this Company Lease have been duly
authorized by all requisite corporate action on the part of the Company and will
not violate (i) any provision of law, or any order of any court or agency of
government having jurisdiction thereover, (ii) the certificate of incorporation
or by-laws of the Company, or (iii) any material indenture, agreement or other
instrument to which the Company is a party (including the Prime Lease) or by
which it is subject or to which any of its property is bound and which is
material to the business or financial condition of the Company, or be in
material conflict with or result in a material breach of or constitute (with due
notice and/or lapse of time) a material default under any such material
indenture, agreement or other instrument, or would result in the imposition of
any lien, charge or encumbrance of any nature whatsoever on the Facility Realty
other than Permitted Encumbrances. The Company covenants and agrees that, so
long as the Lease Agreement shall be in full force and effect, and the Facility
Realty shall be part of the Project Property demised thereunder, the Agency
shall have, hold and enjoy a valid leasehold estate in the Facility Realty
during the term hereof, and the Company shall from time to time take all
necessary action to that end. The Agency represents and warrants that it has
full right and lawful authority to enter into this Company Lease for the full
term hereof.
ARTICLE VI
Neither the Agency nor the Company shall assign or transfer this Company
Lease, nor sublease the whole or any part of the Facility Realty, nor subject
this Company Lease to any lien, claim, mortgage or encumbrance (other than
Permitted Encumbrances), in any manner, nor sell, assign, convey or otherwise
dispose of the Facility Realty or any part thereof, during the term of this
Company Lease, in any manner, to any Person, except that the Agency may
sub-sublease the Facility Realty to the Company and to EVLICO pursuant to the
Lease Agreement for a term not greater than the term herein provided and except
as otherwise permitted under Sections 5.1, 6.17, 7.2 and 9.3 of the Lease
Agreement.
ARTICLE VII
This Company Lease contains the entire agreement between the parties hereto
with respect to the subject matter hereof (other than any other Security
Document or Project Document) and all prior negotiations and agreements are
merged in this Company Lease. This Company Lease may not be changed, modified or
discharged in whole or in part and no oral or executory agreement shall be
effective to change, modify or discharge in whole or in part this Company Lease
or any obligations under this Company Lease, unless such agreement is set forth
in a written instrument executed by the Company and the Agency. No consent or
approval of the Company shall be deemed to have been given or to be effective
for any purposes unless such consent or approval is set forth in a written
instrument executed by the Company. No consent or approval of the Agency shall
be deemed to have been given or to be effective for any purposes unless such
consent or approval is set forth in a written instrument executed by the Agency.
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ARTICLE VIII
All notices required to be given or authorized to be given by any party
pursuant to this Company Lease shall be in writing and shall be sent by
registered or certified United States mail, postage prepaid, or by hand delivery
(receipt acknowledged), telefacsimile (receipt acknowledged) (or other medium of
electronic communication), Federal Express or other nationally recognized
overnight courier service, addressed:
(a) if to the Agency, to the Chairman, New York City Industrial Development
Agency, 110 William Street, New York, New York 10038, with a copy to the
Executive Director of the Agency at the same address; and
(b) if to the Company, to The Equitable Life Assurance Society of the
United States, 787 Seventh Avenue, New York, New York 10019, Attention: Mr.
Timothy J. Welch and Adam R. Spilka, Esq., with a copy to Stroock & Stroock &
Lavan, 7 Hanover Square, New York, New York 10004, Attention: Jacob Bart, Esq.
The Agency and the Company may, by like notice, designate any further or
different persons or addresses to which subsequent notices or other
communications shall be sent. Any notice or other communication hereunder shall,
except as may expressly be provided herein, (i) if delivered by hand or by
Federal Express (or other nationally recognized overnight courier servicer)
shall be deemed to have been delivered or given as of the date received or
delivery rejected as indicated on the return receipt, or (ii) if delivered by
mail, shall be deemed to have been received on the third day after mailing. A
copy of any notice given to the Agency or the Company under this Company Lease
shall also be given to the Trustee at the address of the Trustee indicated in
the Indenture. Any notice by the Agency or the Company may be given on behalf of
such party by their attorney.
ARTICLE IX
This Company Lease shall be governed by, and construed in accordance with,
the laws of the State of New York.
The terms of this Company Lease are and shall be binding upon and inure to
the benefit of the Agency and the Company and their respective successors and
assigns.
If any one or more of the provisions of this Company Lease shall be ruled
invalid by any court of competent jurisdiction, the invalidity of such
provision(s) shall not affect any of the remaining provisions hereof, but this
Company Lease shall be construed and enforced as if such illegal or invalid
provision had not been contained herein.
ARTICLE X
This Company Lease shall become effective upon the original issuance of the
Initial Bonds. It may be simultaneously executed in several counterparts, each
of which shall be an original and all of which shall constitute but one and the
same instrument.
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ARTICLE XI
All covenants, stipulations, promises, agreements and obligations of the
Agency contained in this Company Lease shall be deemed to be the covenants,
stipulations, promises, agreements and obligations of the Agency, and not of any
member, director, officer, employee or agent of the Agency in his individual
capacity, and no recourse shall be had for the payment of any amounts hereunder
against any member, director, officer, employee or agent of the Agency. In
addition, in the performance of the agreements of the Agency herein contained,
any obligation it may incur for the payment of money shall not create a debt of
the State or of the City, and neither the State nor the City shall be liable on
any obligation so incurred, but any such obligation shall be payable solely out
of the lease rentals, revenues and receipts payable to the Agency under the
Lease Agreement.
All covenants, stipulations, promises, agreements and obligations of the
Company contained in this Company Lease shall be deemed to be the covenants,
stipulations, promises, agreements and obligations of the Company, and not of
any director, officer, employee or agent of the Company. in his individual
capacity, and no recourse shall be had for the payment of any amounts hereunder
against any director, officer, employee or agent of the Company.
ARTICLE XII
The Agency and the Company agree that this Company Lease or a memorandum
hereof shall be recorded by the Agency in the appropriate office of the Register
of The City of New York.
ARTICLE XIII
The use of the Facility Realty, and all other rights, duties, liabilities
and obligations of the Company and the Agency with respect thereto and
including, without limitation, the renovation, improving and equipping of the
Facility Realty, and the use, operation, leasing and financing of the Facility
Realty, not fixed in this Company Lease, shall be as set forth in the Lease
Agreement.
ARTICLE XIV
This Company Lease shall constitute an amendment and restatement of the
Interim Lease Agreement.
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IN WITNESS WHEREOF, the Company has caused its corporate name to be
subscribed hereto and its corporate seal to be imprinted hereon by its
authorized officer and attested under the seal of the Company by its Secretary
or an Assistant Secretary pursuant to a resolution duly adopted by its Board of
Directors, and the Agency has caused its corporate name to be hereunto
subscribed by its duly authorized Chairman, Vice Chairman, Executive Director or
Deputy Executive Director, and attested under the seal of the Agency by its
Deputy Executive Director or an Assistant Secretary, all being done as of the
year and day first above written.
(SEAL) THE EQUITABLE LIFE ASSURANCE SOCIETY
OF THE UNITED STATES
ATTEST:
/s/Linda Galasso By /s/Leon Billis
- ---------------------- ----------------------
Name: Linda Galasso Leon Billis
Title: Vice Presidnet & Assistant Secretary Senior Vice President
NEW YORK CITY INDUSTRIAL
(SEAL) DEVELOPMENT AGENCY
ATTEST:
By /s/Julia Binkerd
-------------------------
Julia Binkerd,
______________________ Deputy Executive Director
Assistant Secretary
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the 8th day of May, in the year one thousand nine hundred and
ninety-six, before me personally came Julia Binkerd, to me known, who being by
me duly sworn, did depose and say that she resides at 145 West 71st Street, New
York, New York; that she is the Deputy Executive Director of the New York City
Industrial Development Agency, the Agency described in and which executed the
above instrument; that she knows the seal of said Agency; that the seal affixed
to said instrument is such corporate seal; that it was so affixed by authority
of the board of directors of said Agency, and that she signed her name thereto
by like authority.
/s/Laurie A. Edmondson
----------------------
Notary Public
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STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the 8th day of May, in the year one thousand nine hundred and
ninety-six, before me personally came Leon Billis, to me known, who being by me
duly sworn, did depose and say that he resides at 17 The Chase, St. James, N.Y.
11780; that he is a Senior Vice President of The Equitable Life Assurance
Society of the United States, the party of the first part described in and which
executed the above instrument; that he knows the seal of said corporation; that
the seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation; and that he
signed his name thereto by like authority.
/s/Elizabeth M. Coppolo
-----------------------
Notary Public
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DESCRIPTION OF FACILITY REALTY
Floors fourteen (14) through twenty-two (22), inclusive, together with the
concourse of that certain building located at 1290 Avenue of the Americas, New
York, New York.
All that certain plot, piece or parcel of land, situate, lying and being in
the Borough of Manhattan, City, County and State of New York, bounded and
described as follows:
BEGINNING at the corner formed by the intersection of the northerly side of
West 51st Street with the easterly side of Avenue of the Americas (formerly
Sixth Avenue);
RUNNING THENCE easterly along the northerly side of West 51st Street, 448
feet to a point distant 472 feet westerly from the corner formed by the
intersection of the northerly side of West 51st Street with the westerly side of
Fifth Avenue;
THENCE northerly parallel with Fifth Avenue and part of the distance
through a party wall, 100 feet 5 inches to the center line of the block between
West 51st Street and West 52nd Street;
THENCE westerly along the center line of the block 2.0 feet to a point;
THENCE northerly parallel with Fifth Avenue and part of the distance
through a party wall, 100 feet 5 inches to the southerly side of West 52nd
Street, at a point therein distant 474 feet westerly from the southwest corner
of West 52nd Street and Fifth Avenue;
THENCE westerly along the southerly side of West 52nd Street, 446 feet to
the easterly side of Avenue of the Americas;
THENCE southerly along the easterly side of Avenue of the Americas, 200
feet 10 inches to the northerly side of West 51st Street at the point or place
of BEGINNING.
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