FIRST AMENDMENT OF LEASE
Agreement, dated as of December _____, 1995, between 1290 ASSOCIATES,
L.L.C., a New York limited liability company having an office in care of Olympia
& York Companies (U.S.A.), 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
("Landlord") and THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES, a
New York corporation having an office at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 ("Tenant").
WITNESSETH:
WHEREAS, Landlord (formerly 1290 Associates, a New York partnership) and
Tenant are parties to a Lease, dated as of July 20, 1995, (the "Lease"), whereby
Landlord leased to Tenant and Tenant hired from Landlord certain space in the
building located at 1290 Avenue of the Americas, New York, New York (the
"Building"); and
WHEREAS, Landlord and Tenant desire to amend the Lease to change the date
of the commencement of the term thereof and certain other matters as more
particularly set forth herein.
NOW, THEREFORE, Landlord and Tenant agree as follows:
1. Defined Terms. All capitalized terms used herein but not defined shall
have the meanings ascribed to them in the Lease.
2. Tenant's Occupancy Rights. Anything contained in the Lease to the
contrary notwithstanding, in no event shall Tenant have the right to occupy any
portion of the Premises for the conduct of normal business therein prior to
August 1, 1996, and, until such date, Tenant's only right in respect of any
portion of the Premises with respect to which the Relevant Date has occurred
shall be to enter upon such portion of the Premises for the purposes of
preparing such portion of the Premises for Tenant's initial occupancy thereof,
including, without limitation, the performance of Alterations and the
installation of furniture, fixtures and equipment therein.
3. Deferral of Certain Payments. (a) Section 4.01(b) of the Lease is hereby
amended to postpone the due date of the final 2 installments of the Block A and
B Allowance as hereinafter set forth. Notwithstanding the provisions of Section
4.01(b) of the Lease, in lieu of the $3,425,497 installment of the Block A and B
Allowance described in clause (v) of said Section 4.01(b), and the $3,173,940
installment of the Block A and B Allowance described in clause (vi) of said
Section 4.01(b), Landlord shall pay to Tenant, on the later of (i) August 1,
1996 and (ii) the first Relevant Date applicable to any space included in the
Block A Space, a single payment of $6,724,893 (the later of the dates described
in clauses (i) and (ii) is called the "Block A/B Allowance Deferred Payment
Date").
(b) Tenant hereby acknowledges that the postponement of the final 2
installments of the Block A and B Allowance pursuant to Section 3(a) above
negates any alleged failure or default by Landlord timely to pay such
installments prior to the Block A/B Allowance Deferred Payment Date, and that
any notice of such failure or default given by Tenant to Landlord prior to the
Block A/B Allowance Deferred Payment Date (including, without limitation, that
certain notice of default dated December 20, 1995) is null and void and of no
force or effect.
4. Certain Amendments to Lease. Effective as of the date of this Agreement,
the Lease is hereby amended as follows:
(a) Section 1.02(b) of the Lease is amended by deleting therefrom (i) the
words "except for the Initial Possession Space (which Tenant may, subject to the
further provisions of this Lease, possess, use and occupy from and after the
date of this Lease)," in clause (ii) thereof and (ii) the words ", except that
in the case of the Initial Possession Space, Tenant shall comply with all of
Tenant's obligations under this Lease with respect to such space from and after
the date that Tenant takes possession of such space for the performance of
Alterations or for any other purpose" in clause (v) thereof. Without limiting
the generality of Section 2 above, Landlord and Tenant acknowledge that Section
2 above supersedes Section 1.02(b) of the Lease.
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(b) The last sentence of Section 1.03(e) of the Lease is deleted.
(c) The last sentence of Section 1.03(f) of the Lease is deleted.
(d) The first sentence of Section 1.03(i) of the Lease is deleted and the
following is inserted in lieu thereof:
"'Concourse Relevant Date' means the later of (x) the date that Landlord
delivers to Tenant vacant possession of the Concourse Space in Qualifying
Condition and (y) the first Relevant Date applicable to any space included in
the Block A Space."
(e) Section 4.01(f) of the Lease is deleted.
(f) The text of Section D of Exhibit D to the Lease is deleted and there
shall be inserted in lieu thereof a new Section D as set forth on Exhibit A to
this Agreement.
5. No Other Changes. Except as expressly set forth in this Agreement, the
Lease shall remain unmodified and in full force and effect, and the Lease as
modified herein is ratified and confirmed. All references in the Lease to "this
Lease" shall hereafter be deemed to refer to the Lease as amended by this
Agreement.
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IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Agreement
as of the day and year first above written.
1290 ASSOCIATES, L.L.C.,
Landlord
By: O&Y Management Corp., as Agent
By: ________________________
Name:
Title:
THE EQUITABLE LIFE ASSURANCE
SOCIETY OF THE UNITED
STATES,
Tenant
By: ____________________________
Name:
Title:
The Bank of New York, as successor trustee under the Indenture (as such
term is defined in the Lease) is executing this Agreement for the purpose of
indicating its consent thereto for purposes of Section 3(g) of that certain
Subordination Non-Disturbance and Attornment Agreement, dated as of August 17,
1995 among Nationsbank of Tennessee, N.A. (predecessor trustee to The Bank of
New York), The Equitable Life Assurance Society of the United States and 1290
Associates.
THE BANK OF NEW YORK
By: ___________________________
Name:
Title:
The undersigned, as trustee under the Indenture (as such term is defined in
the Lease) is executing this Agreement for the sole purpose of indicating its
consent thereto for purposes of Section 3(g) of that certain Subordination
Non-Disturbance and Attornment Agreement, dated as of August 17, 1995 among
Nationsbank of Tennessee, N.A., The Equitable Life Assurance Society of the
United States and 1290 Associates.
NATIONSBANK OF TENNESSEE, N.A.
By: THE BANK OF NEW YORK, as agent
By: _____________________________
Name:
Title:
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EXHIBIT A
Revised Section D of Exhibit D to the Lease
D. Contractors Agreement; Insurance Requirements
[To be retyped on letterhead of Tenant's contractors, addressed to
Landlord; References below to "contractor" shall be deemed to include
any construction manager]
________________, 199__
1290 Associates, L.L.C.
c/o Olympia & York Companies (U.S.A.)
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Managing Attorney
Re: Tenant - The Equitable Life Assurance Society of the United States -
1290 Avenue of the Americas
Dear Sir/Madam:
The undersigned contractor (hereinafter called "Contractor") has been hired by
the Tenant or occupant (hereinafter called "Tenant") of the Building named above
[or by Tenant's contractor] to perform certain work (hereinafter called "Work")
for Tenant in the Tenant's Premises in the Building. Contractor and Tenant have
requested the undersigned Landlord (hereinafter called "Landlord") to grant
Contractor access to the Building and its facilities in connection with the
performance of the Work and Landlord agrees to grant such access to Contractor
upon and subject to the following terms and conditions:
1. Contractor agrees to indemnify and save harmless the Landlord, any
Superior Lessor and any Superior Mortgagee and their respective officers,
employees, agents, affiliates, subsidiaries, and partners, and each of them,
from and with respect to any claims, demands, suits, liabilities, losses and
expenses, including reasonable attorneys' fees, arising out of or in connection
with the Work (and/or imposed by law upon any or all of them) because of
personal injuries, including death at any time resulting therefrom, and loss of
or damage to property, whether such injuries to persons or property are claimed
to be due to negligence of the Contractor or Tenant, except to the extent
specifically prohibited by law (and any such prohibition shall not void this
Agreement but shall be applied only to the minimum extent required by law).
Contractor shall provide, or require its subcontractors to provide, and
maintain at its or its subcontractors' expense, as the case may be, until
completion of Work, the following insurance:
(a) Workers' Compensation and Employers' Liability
Insurance covering each and every xxxxxxx employed
in, about or upon the Work, as provided for in each
and every statute applicable to Workers' Compensation
and Employers' Liability Insurance.
(b) Commercial General Liability Insurance including
Coverage for Completed Operations, Broad Form
Property Damage "XCU" exclusion if any deleted, and
Contractual Liability (to specifically include
coverage for the indemnification clause of this
Agreement) for not less than the following limits:
Combined Single Limit Bodily
Injury and Property
Damage Liability:$5,000,000 (for Tenant's general
contractor and all Major Trade contractors) and
$1,000,000 (for all non-Major Trade contractors), in
each case written on a per occurrence basis. "Major
Trades" means HVAC, electric, sprinkler and plumbing.
(c) Commercial Automobile Liability Insurance (covering
all owned, non-owned and/or hired motor vehicles to
be used in connection with the Work) for not less
than the following limits:
Bodily Injury: $5,000,000 (for Tenant's general contractor
and all Major Trade contractors) and $1,000,000
(for all non-Major Trade contractors, in each case per
person
$5,000,000 (for Tenant's
general contractor and all
Major Trade contractors)
and $1,000,000 (for all
non-Major Trade contractors), in each case
per occurrence
Property Damage: $5,000,000 (for Tenant's general contractor and all
Major Trade contractors) and $1,000,000 (for all non-
Major Trade contractors), in each case per occurrence
Contractor shall furnish a certificate from its insurance carrier to the
Building office before commencing the Work, showing that it has complied with
the above requirements regarding insurance and providing that the insurer will
give Landlord 10 days prior written notice of the cancellation of any of the
foregoing policies. Such insurance may be carried under blanket and/or umbrella
policies covering the Building and/or the Work and other work sites of
Contractor, provided, that each such policy shall in all respects comply with
the provisions of this letter, shall specify that the portion of the total
coverage of such policy that is allocated to the Building and/or the Work is in
the amounts required pursuant to this letter and shall provide that the amount
of coverage afforded thereunder with respect to the Building and/or the Work
shall not be reduced by claims thereunder against such other work sites of
Contractor.
2. Contractor shall require all of its subcontractors engaged in the Work
to provide the following insurance:
(a) Workers' Compensation and Employers' Liability
Insurance covering each and every xxxxxxx employed
in, about or upon the Work, as provided for in each
and every statute applicable to Workers' Compensation
and Employers' Liability Insurance.
(b) Commercial General Liability Insurance Including
Contractual Liability Coverage with limits of
liability at least equal to the above stated limits.
(c) Commercial Automotive Liability Insurance (covering
all owned, non-owned and/or hired motor vehicles to
be used in connection with the Work) for not less
than the above stated limits.
Upon the request of Landlord, Contractor shall require all of its subcontractors
engaged in the Work to execute an Insurance Requirements agreement in the same
form as this Agreement.
Agreed to and executed this ______ day of ____________, 199__.
Landlord Contractor
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