NEW YORK CITY
INDUSTRIAL DEVELOPMENT AGENCY
AND
THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES
and
EQUITABLE VARIABLE LIFE INSURANCE COMPANY,
as Lessees
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AMENDED AND RESTATED LEASE AGREEMENT (PROJECT PROPERTY)
------------------------------------------------------------
Dated as of May 1, 1996
New York City Industrial Development Agency
The Equitable Life Assurance Society of the United States Project
TABLE OF CONTENTS
ARTICLE I
Definitions and Representations
Section 1.1. Definitions
Section 1.2. Construction
Section 1.3. Representations and Warranties by Agency
Section 1.4. Findings by Agency
Section 1.5. Representations and Warranties by Lessees
ARTICLE II
The Project
Section 2.1. The Project
Section 2.2. Commitment to Project
Section 2.3. Issuance of Bonds
Section 2.4. Title Insurance
ARTICLE III
Lease of Project Property and Rental Provisions
Section 3.1. Lease of the Project Property
Section 3.2. Duration of Term
Section 3.3. Rental Provisions; Pledge of Agreement and Rent
Section 3.4. Obligation of Lessees Unconditional
Section 3.5. Rent Relating to Leased Personalty and Maintenance Contracts
ARTICLE IV
Maintenance, Taxes and Insurance
Section 4.1. Maintenance, Alterations and Improvements
Section 4.2. Removal of Project Property
Section 4.3. Taxes, Assessments and Charges
Section 4.4. Insurance
Section 4.5. Advances by Agency
Section 4.6. Compliance with Law
Section 4.7. Enforcement of Rights Under Prime Lease Against Prime Landlord
ARTICLE V
Damage, Destruction and Condemnation
Section 5.1. Damage, Destruction and Condemnation
ARTICLE VI
Particular Covenants
Section 6.1. Dissolution or Merger of Lessees; Restrictions on Lessees
Section 6.2. Indemnity
Section 6.3. Compensation and Expenses of Trustee, Bond Registrar,
Paying Agents and Agency
Section 6.4. Retention of Interest in Project Property
Section 6.5. Financial Statements; Annual Certificates
Section 6.6. Discharge of Liens
Section 6.7. Agency's Authority; Covenant of Quiet Enjoyment
Section 6.8. No Warranty of Condition or Suitability
Section 6.9. Amounts Remaining in Funds
Section 6.10. Obligations under and Covenants with Respect to the Prime
Lease
Section 6.11. [Reserved]
Section 6.12. Redemption Under Certain Circumstances
Section 6.13. Further Assurances
Section 6.14. Project Property Registry
Section 6.15. Recording and Filing
Section 6.16. Right to Cure Agency Defaults
Section 6.17. Release of Portions of the Facility Realty
Section 6.18. Additions to the Facility Realty
Section 6.19 Equitable to Remain Tenant Under Prime Lease
Section 6.20. Joint and Several Liability of the Lessees
Section 6.21. Eligibility of EVLICO as Lessee
Section 6.22. Equitable to Act as Agent of Lessees
ARTICLE VII
Events of Default; Remedies
Section 7.1. Events of Default
Section 7.2. Remedies on Default
Section 7.3. Remedies Cumulative
Section 7.4. No Additional Waiver Implied by One Waiver
Section 7.5. Effect of Discontinuance of Proceedings
Section 7.6. Agreement to Pay Attorneys' Fees and Expenses
ARTICLE VIII
Options
Section 8.1. Options
Section 8.2. Conveyance and Reversion on Exercise of Option
Section 8.3. Option to Purchase or Invite Tenders of Bonds
Section 8.4. Termination of Agreement
ARTICLE IX
Miscellaneous
Section 9.1. Indenture; Amendment
Section 9.2. Force Majeure
Section 9.3. Assignment or Sublease
Section 9.4. Priority of Indenture
Section 9.5. Benefit of, Enforcement and Binding Effect of this
Agreement
Section 9.6. Amendments
Section 9.7. Notices
Section 9.8. Prior Agreements Superseded
Section 9.9. Severability
Section 9.10. Inspection of the Project Property
Section 9.11. Effective Date; Counterparts
Section 9.12. Binding Effect
Section 9.13. Net Lease
Section 9.14. Law Governing
Section 9.15. Investment of Funds
Section 9.16. Investment Tax Credit
Section 9.17. Waiver of Trial by Jury
Section 9.18. Non-Discrimination
Section 9.19. No Recourse under This Agreement or on Bonds
Section 9.20. This Agreement to Constitute an Amendment and Restatement
Section 9.21. Date of Agreement for Reference Purposes Only
APPENDICES
Description of Project
Description of Pre-Bond Issuance Project Costs
Description of Facility Realty
AMENDED AND RESTATED LEASE AGREEMENT (PROJECT PROPERTY)
THIS AMENDED AND RESTATED LEASE AGREEMENT (PROJECT PROPERTY), made and
entered into as of May 1, 1996, by and between 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 (the
"Agency"), having its principal office at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇, party of the first part, and THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE
UNITED STATES and EQUITABLE VARIABLE LIFE INSURANCE COMPANY, each being a
corporation organized and existing under and by virtue of the laws of the State
of New York ("Equitable" and "EVLICO", respectively, and collectively, the
"Lessees"), having their principal office at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇, parties of the second part (capitalized terms used but not defined in the
recitals to this Amended and Restated Lease Agreement (Project Property) shall
have the respective meanings assigned such terms in Section 1.1 hereof), which
amends and restates a certain Interim Sublease Agreement, dated as of December
29, 1995, between the Agency and the Lessees (the"Interim Sublease Agreement"):
WITNESSETH:
WHEREAS, the New York State Industrial Development Agency Act, constituting
Title 1 of Article 18-A of the General Municipal Law, Chapter 24 of the
Consolidated Laws of New York, as amended, authorizes and provides for the
creation of industrial development agencies in the several counties, cities,
villages and towns in the State of New York (the "State") and empowers such
agencies, among other things, to acquire, construct, reconstruct, lease,
improve, maintain, equip and furnish land, any building or other improvement,
and all real and personal properties, including but not limited to machinery and
equipment deemed necessary in connection therewith, whether or not now in
existence or under construction, which shall be suitable for manufacturing,
warehousing, research, commercial, industrial or civic purposes, to the end that
such agencies may be able to promote, develop, encourage, assist and advance the
job opportunities, health, general prosperity and economic welfare of the people
of the State and to improve their prosperity and standard of living; and
WHEREAS, pursuant to and in accordance with the provisions of the Act the
Agency was established for the benefit of The City of New York (the "City") and
the inhabitants thereof; and
WHEREAS, Equitable has advised each of the Agency and the appropriate
officials of the City as follows: that Equitable 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 Equitable desired to consolidate its
locations for a more efficient operation and to reduce its overall occupancy
costs; that Equitable 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 Equitable approximately $63,500,000 more than
relocating and leasing space in Westchester; that in order to induce Equitable
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 Equitable to secure satisfactory public financial incentives
and thereby induce Equitable 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 Equitable'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, Equitable desires to proceed with the Project in
the City; and
WHEREAS, Equitable and representatives of the City and of the Agency
commenced discussions in order to induce Equitable, 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 Lessees
to construct from time to time leasehold improvements and renovations to a
portion of those premises within the Project Building to be leased to Equitable,
and to acquire, lease, sublease, install, maintain, repair and replace
furniture, machinery, equipment, and certain other tangible personal property
for use at Approved Equitable City Locations (as defined herein), all for use by
Equitable as its corporate headquarters and for the providing of financial
services, insurance and related operations by the Lessees, and for the Permitted
Incidental Use, as defined herein (the "Project") within the City; and
WHEREAS, the appropriate officials of the Agency and the City entered into
negotiations with Equitable in order to induce Equitable to remain and expand
its operations within the City; and
WHEREAS, to accomplish the purposes of the Act, and in furtherance of said
purposes, on June 13, 1995, as amended on December 12, 1995, the Agency adopted
a resolution authorizing, among other things, the leasing (and sub-subleasing)
and licensing (and sublicensing), as the case may be, of the Project Property
(as defined herein) to the Lessees, the construction from time to time of
leasehold improvements and renovations to the Facility Realty and the
acquisition (by purchase or lease) from time to time of furniture, machinery,
equipment and certain other tangible personal property for use at Approved
Equitable City Locations by the Lessees within the City, all for use in
conducting the Equitable Business, as defined herein, and undertaking to permit
the issuance from time to time of its industrial development revenue bonds to
finance the Project; and
WHEREAS, Agency financing assistance and related Agency benefits are
necessary to provide employment in, and beneficial for the economy of, the City
and are reasonably necessary to induce the Lessees to proceed with the Project;
and
WHEREAS, pursuant to the Prime Lease (as defined herein), the Prime
Landlord (also as defined herein) has leased the Facility Realty and other
premises within the Project Building to Equitable, and pursuant to the Company
Lease (as defined herein), Equitable has subleased the Facility Realty to the
Agency; and
WHEREAS, it is intended by the Agency and the Lessees that the Facility
Realty is to be sub-subleased, and the remainder of the Project Property is to
be leased, by the Agency to the Lessees pursuant to this Lease Agreement
(Project Property); and
WHEREAS, simultaneously with the execution of this Lease Agreement (Project
Property), the Agency and the Lessees have entered into a Project Agreement of
even date herewith pursuant to which the Lessees have undertaken certain
additional obligations, covenants and agreements with the Agency; and
WHEREAS, the Agency, in order to provide funds for a portion of the cost of
the Project and for incidental and related costs thereto, will issue and sell
from time to time in various Series its Industrial Development Revenue Bonds
(The Equitable Life Assurance Society of the United States Project) (the
"Bonds"), in the aggregate principal amount of up to One Hundred Fifty-Six
Million Dollars ($156,000,000) pursuant to the Act, a resolution of the Agency
adopted on March 12, 1996, Certificates of Determination (as hereinafter
defined) of the Agency, an Indenture of Trust of even date herewith by and
between the Agency and United States Trust Company of New York, as Trustee,
securing said Bonds, and a Bond Supplemental Indenture of Trust of even date
herewith between the Agency and the Trustee; and
WHEREAS, the Agency and the Lessees desire hereby to amend and restate in
its entirety the Interim Sublease Agreement;
NOW, THEREFORE, in consideration of the premises and the respective
representations and agreements hereinafter contained, the parties hereto 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
create a debt of the State of New York or of The City of New York, and neither
the State of New York nor The City of New York shall be liable on any obligation
so incurred, but any such obligation shall be payable solely out of the lease
rentals payable by the Lessees under this Amended and Restated Lease Agreement
(Project Property)):
ARTICLE I
Definitions and Representations
Section 1.1. Definitions. Terms not otherwise defined herein shall have the
same meanings as used in the Indenture or in the Project Agreement herein below
defined. The following terms shall have the following meanings in this Lease
Agreement (Project Property):
Act shall mean, collectively, the New York State Industrial Development
Agency Act (constituting Title 1 of Article 18-A of the General Municipal Law,
Chapter 24 of the Consolidated Laws of New York), as amended, and Chapter 1082
of the 1974 Laws of New York, as amended.
An Affiliate of a Person shall mean a Person which directly or indirectly
through one or more intermediaries controls, or is under common control with, or
is controlled by, such Person. The term "control" (including the related terms
"controlled by" and "under common control with") means (i) the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of a Person, whether through the ownership of voting
securities, by contract or otherwise, and (ii) the ownership, either directly or
indirectly, of at least 51% of the voting stock or other equity interest of such
Person.
Agency shall mean the New York City Industrial Development Agency, a
corporate governmental agency constituting a body corporate and politic and a
public benefit corporation of the State, duly organized and existing under the
laws of the State, and any body, board, authority, agency or other governmental
agency or instrumentality which shall hereafter succeed to the powers, duties,
obligations and functions thereof.
Agency's Reserved Rights shall mean, collectively,
(i) the right of the Agency in its own behalf to receive all Opinions of
Counsel, reports, financial statements, certificates, insurance policies,
binders or certificates, or other notices or communications required to be
delivered to the Agency under this Agreement;
(ii) the right of the Agency to grant or withhold any consents or approvals
required of the Agency under this Agreement;
(iii) the right of the Agency to enforce or otherwise exercise in its own
behalf all agreements of the Lessees with respect to ensuring that the Project
Property shall always constitute a qualified "project" as defined in and as
contemplated by the Act for the general purposes set forth in the recitals to
this Agreement;
(iv) the right of the Agency in its own behalf (or on behalf of the
appropriate taxing authorities) to enforce, receive amounts payable under or
otherwise exercise its rights under Sections 2.1, 2.2, 2.3, 2.4, 3.1, 3.2, 3.4,
3.5, 4.1, 4.2, 4.3, 4.4, 4.5, 4.6, 4.7, 5.1, 6.1, 6.2, 6.3, 6.4, 6.5, 6.6(b),
6.8, 6.10, 6.11, 6.12, 6.13, 6.14, 6.15, 6.17, 6.18, 6.19, 6.20, 6.21, 6.22,
7.1, 7.2, 7.3, 7.4, 7.5, 7.6, 8.4, 9.2, 9.3, 9.10, 9.13, 9.17, 9.18 and 9.19 of
this Agreement;
(v)the right of the Agency to exercise on its own behalf its rights under
Section 2.4 hereof with respect to the proceeds of leasehold title insurance;
(vi) the right of the Agency, in its own absolute discretion, but only upon
the prior written request of the Lessees, to issue Bonds in an aggregate
principal amount in excess of $156,000,000; and
(vii) the right of the Agency in its own behalf to declare an Event of
Default under Section 7.1 of this Agreement with respect to any of the Agency's
Reserved Rights.
Agreement shall mean this Amended and Restated Lease Agreement (Project
Property) dated as of May 1, 1996 between the Agency and the Lessees, and shall
include any and all amendments hereof and supplements hereto hereafter made in
conformity herewith and with the Indenture.
Annual Bond Amount Period shall mean (i) that period commencing on the
Lease Commencement Date and ending on the day preceding the first anniversary of
the Lease Commencement Date, which shall be the First Annual Bond Amount Period,
and (ii) thereafter, each annual period commencing on the next anniversary date
of the Lease Commencement Date and ending on the day preceding the next
anniversary of such anniversary date (i.e., the Second Annual Bond Amount
Period, the Third Annual Bond Amount Period, etc.).
Approved Equitable City Location shall mean any or all of the following
locations within the City (each for and only to the extent that such location
shall be occupied in whole or in part by Equitable (subject to the Permitted
Incidental Use) for the operation of the Equitable Business):
(i) ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇;
(ii) ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇;
(iii) ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇;
(iv) ▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇;
(v) ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇;
(vi) ▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇; and
such other locations within the City as the Agency shall, upon written request
by an Authorized Representative of the Lessees, approve in accordance with the
requirements of the Act, such approval by the Agency to be evidenced by a
writing to such effect delivered by the Agency to the Lessees.
Authorized Representative shall mean, (i) in the case of the Agency, the
Chairman, Vice Chairman, Treasurer, Assistant Treasurer, Secretary, Assistant
Secretary, Executive Director or Deputy Executive Director of the Agency, or any
officer or employee of the Agency authorized to perform specific acts or to
discharge specific duties, and (ii) in the case of the Lessees, the Chairman,
any Vice Chairman, the President, the Chief Financial Officer, the Secretary,
any Executive Vice President, any Senior Vice President, the Treasurer, any
Assistant Treasurer or any Vice President of Equitable; provided, however, that
in each case for which a certification or other statement of fact or condition
is required to be submitted by an Authorized Representative to any Person
pursuant to the terms of this Agreement, such certificate or statement shall be
executed only by an Authorized Representative in a position to know or to obtain
knowledge of the facts or conditions that are the subject of such certificate or
statement.
Bond Resolution shall mean the resolution of the Agency adopted on March
12, 1996 authorizing, among other things, the issuance from time to time of the
Bonds.
Bonds shall mean the Agency's Industrial Development Revenue Bonds (The
Equitable Life Assurance Society of the United States Project) authorized to be
issued from time to time, in one or more Series, pursuant to Certificates of
Determination, the Bond Resolution, the Indenture and the Bond Supplemental
Indenture, in the aggregate principal amount of not to exceed One Hundred
Fifty-Six Million Dollars ($156,000,000).
Bond Supplemental Indenture shall mean the Bond Supplemental Indenture of
Trust of even date herewith between the Agency and the Trustee, and shall
include any and all amendments thereof and supplements thereto hereafter made in
conformity therewith and with the Indenture.
Business Day shall mean any day which shall not be a Saturday, Sunday,
legal holiday or a day on which banking institutions in the City are authorized
by law or executive order to close.
Certificate of Determination shall mean a Certificate of Determination of
the Chairman, Vice Chairman, Executive Director, Deputy Executive Director,
Secretary or Assistant Secretary of the Agency, substantially in the form set
forth in the Appendices attached to the Indenture as Form of Certificate of
Determination, with respect to and as a condition for the issuance of, a Series
of Bonds.
City shall mean The City of New York.
Code shall mean the Internal Revenue Code of 1986, as amended, and the
regulations thereunder.
Company Lease shall mean the Company Lease Agreement (Facility Realty) of
even date herewith between Equitable and the Agency relative to the Facility
Realty, and shall include any and all amendments thereof and supplements thereto
hereafter made in conformity therewith.
Defeasance Securities shall mean Government Securities; provided, however,
that, with respect to any particular Series of Bonds, "Defeasance Securities"
shall have the meaning ascribed to such term in the Certificate of Determination
pursuant to which such Series of Bonds is issued.
Equitable shall mean The Equitable Life Assurance Society of the United
States, a corporation organized and existing under the laws of the State of New
York, and its permitted successors and assigns pursuant to Section 6.1 or 9.3
hereof (including any surviving, resulting or transferee corporation as provided
in Section 6.1 hereof).
Equitable Business shall mean the corporate headquarters of Equitable and
the providing of financial services, insurance and related operations by
Equitable and EVLICO.
Event of Default shall have the meaning specified in Section 7.1 hereof.
EVLICO shall mean Equitable Variable Life Insurance Company, a corporation
organized and existing under the laws of the State of New York, and its
permitted successors and assigns pursuant to Section 6.1 or 9.3 hereof
(including any surviving, resulting or transferee corporation as provided in
Section 6.1 hereof).
Excluded Property shall mean all machinery, equipment and other tangible
personal property as constitute the Lessees' Property.
Existing Project Property shall have the meaning specified in Section
4.2(a) hereof.
Facility Equipment shall mean the machinery, equipment, trade fixtures,
furniture, furnishings and other tangible personal property financed, paid or
reimbursed in whole or in part from the proceeds of the Bonds and the title to
which shall be acquired by or on behalf of the Agency for use or installation,
as the case may be, at an Approved Equitable City Location as part of the
Project pursuant to Section 2.1 hereof and described in the Project Property
Registry which is incorporated herein and made a part hereof (including, without
limitation, computers and peripherals, personal computers, telecommunications
equipment, business machines and software (which software is capitalized or
capable of being capitalized under generally accepted accounting principles)),
together with all repairs, replacements, improvements, substitutions and
renewals thereof or therefor, and all parts, additions and accessories
incorporated therein or affixed thereto. Facility Equipment shall, in accordance
with the provisions of Sections 4.2 and 5.1 hereof, include all property
substituted for or replacing items of Facility Equipment and exclude all items
of Facility Equipment so substituted for or replaced, and further exclude all
items of Facility Equipment removed (other than Temporary Removals) as provided
in Section 4.2 hereof. Facility Equipment shall not include rolling stock.
Facility Realty shall mean those certain premises within the Project
Building described in the Description of Facility Realty in the appendices
attached hereto and to the Company Lease, together with all fixtures (other than
trade fixtures) and improvements now or at any time made or situated thereon
(including the Tenant Improvements made pursuant to Section 2.1 hereof), and all
replacements, improvements, extensions, substitutions, restorations, repairs or
additions thereto, subject, however, to the provisions of Sections 5.1, 6.17,
6.18, 7.2 and 9.3 hereof providing for the addition and release of Facility
Realty. Facility Realty shall not include Excluded Property.
Federal Bankruptcy Code shall mean the Bankruptcy Reform Act of 1978, as
amended (constituting ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code, as amended).
Force Majeure shall have the meaning specified in Section 9.2 hereof.
Government Securities shall mean direct obligations of, or obligations
fully guaranteed as to payment of principal and interest by, the United States
of America.
Indenture shall mean the Indenture of Trust of even date herewith by and
between the Agency and the Trustee, as from time to time amended or supplemented
by Supplemental Indentures in accordance with Article XI of the Indenture.
Independent Accountant shall mean (y) any of the "Big Six" accounting
firms, or (z) an independent certified public accountant or firm of independent
certified public accountants selected by Equitable and approved in writing by
the Agency (such approval not to be unreasonably withheld, delayed or
conditioned).
Independent Engineer shall mean a Person (not an employee of either the
Agency, the Lessees or any Affiliate thereof) registered and qualified to
practice engineering or architecture under the laws of the State, selected by
the Lessees, and approved by the Trustee and the Agency (which approvals shall
not be unreasonably withheld, delayed or conditioned).
Initial Bonds shall mean the first Series of Bonds issued under the
Indenture.
Interest Payment Date shall mean each date upon which interest, with
respect to a Series of Outstanding Bonds, shall be due and payable.
Issue Date shall mean, with respect to each fully registered Bond of a
Series, the date of the initial authentication and delivery of any of the Bonds
of such Series, as stated by the Trustee in the Trustee's Certificate of
Authentication appearing thereon to be the "Issue Date."
Lease Commencement Date shall mean the date of original issuance of the
Initial Bonds.
Leased Personalty shall mean one or more items of tangible or intangible
personal property, including, without limitation, mainframes (and peripherals),
personal computers, telecommunications equipment, equipment relating to the
operation of the three foregoing categories, and software, in which the Agency
shall acquire a leasehold or license interest under a Qualified Personalty Lease
in accordance with Section 2.1 hereof, and for which the Leased Personalty
Semi-Annual Capital Investment shall be financed in whole or in part from the
proceeds of the Bonds, to be used by any of the Lessees (subject to the
Permitted Incidental Use) at an Approved Equitable City Location as part of the
Project. Leased Personalty shall not include rolling stock.
Leased Personalty Semi-Annual Capital Investment shall mean that amount as
set forth in the certificate of an Authorized Representative of the Lessees
delivered to the Agency pursuant to Section 3.1 of the Project Agreement with
respect to each Qualified Personalty Lease in effect, as equal to the reasonably
estimated principal amortization relative to the property subject to such
Qualified Personalty Lease for the semi-annual period to which such certificate
relates, as representing the incremental acquisition of a capital interest in
such property; provided, however, that in calculating the Leased Personalty
Semi-Annual Capital Investment with respect to a Qualified Personalty Lease
qualifying as such only under clause (z) of the definition of such term, the
principal amortization for the relevant semi-annual period shall be calculated
as equal to (y) the aggregate rental paid under such Qualified Personalty Lease
during such semi-annual period, less (z) the deemed interest component of such
aggregate rentals calculated as being the same rate of interest as that Series
of Bonds issued immediately prior to the entering into of such Qualified
Personalty Lease.
Lease Rental Payment Date shall mean each date upon which principal,
interest, Redemption Price, if applicable, or other amounts shall be due under
the Bonds.
Lessees shall mean, collectively, Equitable and EVLICO.
Lessees' Property shall have the meaning specified in Section 4.1(c)
hereof.
Liens shall have the meaning specified in Section 6.6(a) hereof.
Loss Event shall have the meaning specified in Section 5.1(a) hereof.
Maintenance Contracts shall mean contracts for the maintenance, service or
repair of Facility Equipment or Leased Personalty used by any of the Lessees
(subject to Permitted Incidental Use) for the Equitable Business at an Approved
Equitable City Location, to the extent such contracts only encompass Qualified
Maintenance.
Moody's shall mean ▇▇▇▇▇'▇ Investors Service, Inc., a corporation organized
and existing under the laws of the State of Delaware, its successors and their
assigns, and, if such corporation shall be dissolved or liquidated or shall no
longer perform the functions of a securities rating agency, "Moody's" shall be
deemed to refer to any other nationally recognized securities rating agency
reasonably designated by the Agency, by notice to the Lessees and the Trustee.
Nationally Recognized Bond Counsel shall mean ▇▇▇▇▇▇▇, Delafield & Wood or
other counsel reasonably acceptable to the Agency and experienced in matters
relating to tax exemption of interest on bonds issued by states and their
political subdivisions.
Net Proceeds shall mean, when used with respect to any insurance proceeds
or condemnation award, compensation or damages, the gross amount from any such
proceeds, award, compensation or damages less all reasonable expenses (including
reasonable attorneys' fees, reasonable adjusters' fees and other reasonable
expenses of the Agency, other than fees or expense of in-house attorneys or
other in-house professionals) incurred in the collection thereof.
Non-Qualified User shall mean any Person other than the Lessees who shall
use or occupy any of the Facility Realty (whether by lease, or otherwise); but
subject, however, to Permitted Incidental Use.
Opinion of Counsel shall mean a written opinion of counsel who may (except
as otherwise expressly provided in this Agreement or the Indenture) be counsel
for the Lessees or the Agency, as the case may be, and, if such counsel shall
not be an in-house counsel of the Lessees, who shall be reasonably acceptable to
the Person(s) to whom the opinion is to be addressed.
Outstanding, when used with reference to a Bond or Bonds of a particular
Series, as of any particular date, shall mean all Bonds of such Series which
have been issued, executed, authenticated and delivered under the Indenture,
except:
(i) Bonds of a Series cancelled by the Trustee because of payment or
redemption prior to maturity or surrendered to the Trustee under the Indenture
for cancellation;
(ii) Any Bond of such Series (or portion of a Bond of such Series) for the
payment or redemption of which, in accordance with Section 10.01 of the
Indenture, there has been separately set aside and held in a separate account of
the Bond Fund moneys and/or Defeasance Securities in an amount sufficient to
effect payment of the principal or applicable Redemption Price of such Bond,
together with accrued interest on such Bond to the payment or redemption date,
which interest on such Bond to the payment or redemption date shall be specified
in irrevocable instructions given to the Trustee to apply such moneys and/or
Defeasance Securities to such payment on the date so specified, provided, that,
if such Bond or portion thereof is to be redeemed, notice of such redemption
shall have been given as provided in the Indenture or provision satisfactory to
the Trustee shall have been made for the giving of such notice; and
(iii) Bonds in exchange for or in lieu of which other Bonds shall have been
authenticated and delivered under Article III of the Indenture.
Paying Agent shall mean any paying agent or co-paying agent for the Bonds
(and may include the Trustee) and its successor or successors and any other
corporation which may at any time be substituted in its place pursuant to the
Indenture.
Permanent Removals shall have the meaning set forth in Section 4.2(c)
hereof.
Permitted Encumbrances shall mean, as of any particular time,
(i) the Prime Lease, the Company Lease, this Agreement (including the
rights of the Lessees under Sections 4.2 and 8.1 hereof), the Indenture and any
other Security Document, and any mortgage, lien, security interest or other
encumbrance created thereby;
(ii) any mortgages now or hereafter granted by the Prime Landlord in the
Facility Realty;
(iii) liens for real estate taxes, assessments, levies and other
governmental charges, the payment of which is not in default;
(iv) any mechanic's, workmen's, repairmen's, materialmen's, contractors',
carriers', suppliers' or vendors' Lien or right in respect thereof if payment is
not yet due and payable, all if and to the extent permitted by Section 6.6
hereof;
(v) those exceptions to title to the Facility Realty enumerated in the
title insurance policies delivered pursuant to Section 2.4 hereof insuring the
Agency's leasehold interest in the Facility Realty, copies of which policies are
on file at the principal corporate trust office of the Trustee and at the office
of the Agency; and
(vi) any lien, security interest, encumbrance or charge, or any
conditional sale or other title retention agreement, which any vendor of
Facility Equipment or any lessor of Leased Personalty or any contractor under a
Maintenance Contract or any contractor hired to install Tenant Improvements may
place on or with respect to the Facility Realty, Facility Equipment, Leased
Personalty, a Maintenance Contract or Tenant Improvements.
Permitted Incidental Use shall mean incidental use of any of the Project
Property in the ordinary course of business by a direct or indirect parent
corporation of Equitable or by other legal entities which are direct or indirect
subsidiaries of Equitable.
Person shall mean any individual, corporation, partnership, joint venture,
association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof or other entity.
Pre-Bond Issuance Project Costs shall mean those items of Project Costs
paid or incurred by any of the Lessees after June 13, 1995 and which are
enumerated in the appendices hereto in "Description of Pre-Bond Issuance Project
Costs."
Pre-Bond Issuance Sales Tax Letter shall mean that certain Pre-Bond
Issuance Sales Tax Letter dated October 12, 1995, as amended and restated on
December 29, 1995 and on April 1, 1996, issued by the Agency to the Lessees with
respect to Pre-Bond Issuance Project Costs prior to the issuance of the Initial
Bonds and expiring on the Lease Commencement Date.
Prime Landlord shall mean 1290 Associates, a limited partnership organized
and existing under the laws of the State of New York, and its successors and
assigns under the Prime Lease.
Prime Lease shall mean the Agreement of Lease dated July 20, 1995, as
amended through the Lease Commencement Date, between the Prime Landlord and
Equitable relative to the Facility Realty, and shall include any and all
amendments thereof and supplements thereto hereafter made in conformity
therewith and herewith.
Principal Payment Date shall mean each date upon which principal with
respect to a Series of Outstanding Bonds shall be due and payable.
Prohibited Person shall mean:
(i) any Person (A) that is in material default or in material breach,
beyond any applicable grace period, of its obligations under any material
written agreement with the City or the Agency, or (B) that directly or
indirectly controls, is controlled by, or is under common control with, a Person
that is in material default or in material breach, beyond any applicable grace
period, of its obligations under any material written agreement with the City or
the Agency, unless such material default or material breach has been waived in
writing by the City or the Agency, respectively;
(ii) any Person (A) that has been convicted in a criminal proceeding for a
felony or any crime involving moral turpitude or that is an organized crime
figure or is reputed to have substantial business or other affiliations with an
organized crime figure, or (B) that directly or indirectly controls, is
controlled by, or is under common control with a Person that has been convicted
in a criminal proceeding for a felony or any crime involving moral turpitude or
that is an organized crime figure or is reputed to have substantial business or
other affiliations with an organized crime figure;
(iii) any government, or any Person that is directly or indirectly
controlled (rather than only regulated) by a government, that is finally
determined to be in violation of (including, but not limited to, any participant
in an international boycott in violation of) the Export Administration Act of
1979, or successor act, or the regulations issued pursuant thereto, or any
government that is, or any Person that, directly or indirectly, is controlled
(rather than only regulated) by a government that is subject to the regulations
or controls thereof; or
(iv) any government, or any Person that, directly or indirectly, is
controlled (rather than only regulated) by a government, the effects of the
activities of which are regulated or controlled pursuant to regulations of the
United States Treasury Department or executive orders of the President of the
United States of America issued pursuant to the Trading with the Enemy Act of
1917, as amended (including the Arms Export Control Act of 1979, as amended).
Project shall mean the construction and installation from time to time of
Tenant Improvements to the Facility Realty, and the acquisition, leasing,
subleasing, licensing, sublicensing and maintenance of Facility Equipment,
Leased Personalty and Maintenance Contracts for location at an Approved
Equitable City Location, all for use by the Lessees (subject to Permitted
Incidental Use) in the Equitable Business, as more fully described in the
Description of Project in the appendices attached hereto and made a part hereof.
Project Agreement shall mean the Project Agreement of even date herewith
between the Lessees and the Agency, and shall include any and all modifications
thereof and amendments thereto hereafter made in accordance therewith.
Project Building shall mean that certain building known as 1290 Avenue of
the Americas, New York, New York, and any substitutions, additions, repairs or
improvements thereto.
(b) Costs shall mean ( the Pre-Bond Issuance Project Costs, and (b) all
costs paid or incurred by any of the Lessees:
(i) for engineering and architectural services with respect to the Project,
including the cost of estimates, plans and specifications and for supervising
Tenant Improvements, equipping and installation, as well as for the performance
of all other duties required by or consequent upon the proper renovation,
alteration, improving, equipping and installation of the Project;
(ii) for the Leased Personalty Semi-Annual Capital Investment; (iii) for
labor, contract bonds, materials, services, supplies, machinery or equipment and
other expenses, and to contractors, suppliers, builders and materialmen in
connection with Tenant Improvements, including costs of contract bonds and of
insurance that may be required or necessary during periods of renovation of the
Facility Realty;
(iv) for the title insurance policy delivered by the Lessees pursuant to
Section 2.4 hereof;
(v) for the acquisition of computer software provided that such software is
treated or capable of being treated (whether or not so treated) in accordance
with generally accepted accounting principles as a capital expenditure;
(vi) for the payment of the initial fees and expenses of the Trustee, legal
and financial fees and expenses, printing and engraving costs, and all other
costs and expenses incurred by or for the account of the Agency in connection
with the preparation, authorization, sale, printing, rating and issuance of the
Bonds from time to time, and the preparation and execution of this Agreement,
the Indenture, the Project Agreement, the Company Lease and all other documents
to which the Agency shall be a party;
(vii) for which any of the Lessees shall be required to pay, under the
terms of any purchase order, contract or contracts, or lease or leases, for
Tenant Improvements, the acquisition of Facility Equipment and the Leased
Personalty Semi-Annual Capital Investment, including any amounts required to
reimburse any of the Lessees for advances made for any item otherwise
constituting a Project Cost or for any other costs incurred and for work done
which are properly chargeable to the capital account of the Project; and
(viii) for the payment of such other costs with respect to which any of the
Lessees is entitled to receive a sales and/or use tax exemption under the Sales
Tax Letter, as may hereafter be agreed upon by the Agency and the Lessees.
"Project Costs" shall not include (i) counsel fees of the Lessees or any
Affiliate of any of the Lessees, (ii) fees or commissions of real estate
brokers, (iii) moving expenses, (iv) operational costs, (v) the costs of
acquiring and installing any item of personalty unless such personalty is a
capital tangible asset with a useful life of one year or more, (vi) charges for
utilities services, (vii) working capital costs, (viii) management, development
or leasing fees or commissions, (ix) the costs of Maintenance Contracts or the
interest portion of rentals under Qualified Personalty Leases, (x) costs paid or
incurred prior to June 13, 1995, (xi) costs or expenses with respect to property
not constituting Project Property, (xii) expenses for work done by officers or
employees of any of the Lessees or any Affiliate thereof, (xiii) any costs of
landscaping (including but not limited to the costs of acquiring and planting
shrubs, trees, flowers, lawns and other plants, as well as the cost of landscape
design services, (xiv) the costs of acquiring or leasing rolling stock, (xv) the
cost of acquiring and installing fine art, objets d'art, or any other similar
decorative items, and (xvi) to the extent not included in the preceding,
operating and other working capital costs.
Project Documents shall mean, collectively, this Agreement, the Prime
Lease, the Company Lease, the Project Agreement, the Sales Tax Letter and the
Indenture.
Project Property shall mean, collectively, the Facility Realty, the Tenant
Improvements, the Facility Equipment, the Leased Personalty and the Maintenance
Contracts.
Project Property Registry shall mean the registry maintained by the Agency
at its office of all the Facility Equipment, the Leased Personalty, the
Maintenance Contracts and the Tenant Improvements, as such registry shall be
modified, amended or supplemented from time to time in accordance with Section
6.14 hereof.
Qualified Investments shall mean, to the extent permitted by applicable
law, the following (except to the extent that any of the following are issued or
guaranteed by or otherwise a security or an obligation, directly or indirectly,
of any of the Lessees or any of their Affiliates):
(i) Government Securities.
(ii) Securities issued or guaranteed by any of the
following instrumentalities or agencies of the
United States of America:
(a) Federal Home Loan Bank System
(b) Export-Import Bank of the United States
(c) Federal Financing Bank
(d) Government National Mortgage Association
(e) Farmers Home Administration
(f) Federal Home Loan Mortgage Corporation
(g) Federal Housing Administration
(h) Private Export Funding Corporation
(i) Tennessee Valley Authority.
(iii) Commercial paper rated at least "P-1" or better by
▇▇▇▇▇'▇ or at least "A-1" or better by S&P, issued
by a corporation or banking institution organized
under the laws of the United States or any state
thereof.
(iv) Direct and general long-term obligations of any
state of the United States to which the full faith
and credit of the state is pledged and which are
rated in either of the two highest rating
categories by ▇▇▇▇▇'▇ or S&P.
(v) Direct and general short-term obligations of any
state of the United States to which the full faith
and credit of the state is pledged and which are
rated in the highest rating category by ▇▇▇▇▇'▇
and S&P.
(vi) Interest bearing demand or time deposits with or
certificates of deposit issued by a national
banking association or a state bank or trust
company or a savings and loan association which
are (a) continuously insured by the Bank Insurance
Fund or the Savings Association Insurance Fund
under the auspices of the Federal Deposit
Insurance Corporation,or (b) with a bank which has
outstanding debt, or which is a subsidiary of a
bank holding company which has outstanding debt,
rated at least "P-1" by ▇▇▇▇▇'▇ or "A-1" by S&P,
or (c) continuously secured by obligations of the
type described in (i) and (ii) above which have a
market value at all times at least equal to the
principal amount of the deposit and which are held
by the Trustee or its agent or, in the case of
uncertificated securities, are registered in the
name of the Trustee as pledgee.
(vii) Repurchase agreements, the maturity of which are
less than thirty (30) days, entered into (a) with
a bank or trust company organized under the laws
of any state of the United States or with a
national banking association, insurance company,
or government bond dealer reporting to, trading
with, and recognized as a primary dealer by the
Federal Reserve Bank of New York and which is a
member of the Security Investors Protection
Corporation, or (b) with a dealer whose
obligations are rated, or the parent holding
company of which is rated, investment grade by
▇▇▇▇▇'▇ or S&P. The securities that are subject to
a repurchase agreement must be obligations of the
type described in (i) or (ii) above which have a
fair market value, exclusive of accrued interest,
at least equal to the amount invested in the
repurchase agreement and which are held by the
Trustee or its agent or, in the case of
uncertificated securities, are registered in the
name of the Trustee as pledgee.
(viii) Money market mutual funds with assets in excess of
$2,000,000,000 investing in Qualified Investments
of the type specified in (i) or (ii) above.
Qualified Maintenance shall mean, with respect to any item of Facility
Equipment or Leased Personalty having a useful life of one year or more, the
replacement of parts (other than parts that contain materials or substances that
are consumed in the operation of such property (e.g., a toner cartridge) where
such parts must be replaced whenever the substance is consumed) or the making of
repairs, but shall not include maintenance of the type as shall constitute
janitorial services.
Qualified Personalty Lease shall mean a lease or license of one or more
items of Leased Personalty to any of the Lessees on behalf of and as agent for
the Agency, (y) which lease or license would be characterized under the
Accounting Standards of the Financial Accounting Standards Board, and is so
recorded on the books and records of the Lessees, as a "capital lease" or
"capital license," or (z) pursuant to which an option to purchase the subject
property of such lease or license is granted thereunder by the lessor or
licensor.
Rating Category shall mean one of the generic rating categories of either
▇▇▇▇▇'▇ or S&P without regard to any refinement or gradation of such rating by a
numerical modifier or otherwise.
Redemption Price shall mean, with respect to any Bond, the principal amount
thereof to be redeemed in whole or in part, plus the applicable premium, if any,
payable upon redemption thereof pursuant to such Bond or the Indenture.
Retention Period shall have the meaning specified in Section 4.2(a) hereof.
Sales Tax Letter shall mean the Letter of Authorization for Sales Tax
Exemption which the Agency shall make available to the Lessees in accordance
with and substantially in the form set forth in the appendices to the Project
Agreement.
S&P shall mean Standard & Poor's Ratings Services, a division of the McGraw
Hill Companies, Inc., a corporation organized and existing under the laws of the
State, its successors and assigns, and, if such corporation shall be dissolved
or liquidated or shall no longer perform the functions of a securities rating
agency, "S&P" shall be deemed to refer to any other nationally recognized
securities rating agency reasonably designated by the Agency, by notice to the
Lessees and the Trustee.
Security Documents shall mean, collectively and severally, this Agreement,
the Indenture, the Bond Supplemental Indenture and any other document inuring to
the benefit of the Trustee and the Holders of Bonds.
Series shall mean all of the Bonds designated as being of the same Series
authenticated and delivered on original issuance in a simultaneous transaction,
and any Bonds of the same Series thereafter authenticated and delivered in lieu
thereof or in substitution therefor pursuant to the Indenture and a Certificate
of Determination.
State shall mean the State of New York.
Supplemental Indenture shall mean any indenture supplemental to or
amendatory of the Indenture, executed and delivered by the Agency and the
Trustee in accordance with Article XI of the Indenture.
Temporary Removals shall have the meaning specified in Section 4.2(b)
hereof.
Tenant Improvements shall mean all improvements, additions, fixtures,
alterations or modifications (and all labor costs related thereto) to any of the
space comprising the Facility Realty for use by the Lessees and for Permitted
Incidental Use, and for which sales or use tax exemptions shall have been taken
pursuant to this Agreement, the Project Agreement and the Sales Tax Letter.
Trustee shall mean United States Trust Company of New York, New York, New
York, in its capacity as Trustee, and its successors in such capacity and their
assigns hereafter appointed in the manner provided in the Indenture.
Trust Estate shall mean all property, interests, revenues, funds,
contracts, rights and other security granted to the Trustee under the Security
Documents.
▇.▇.▇▇▇▇▇▇▇▇▇▇▇▇. In this Agreement, unless the context otherwise requires:
(a) The terms "hereby," "hereof," "hereto," "herein," "hereunder" and any
similar terms, as used in this Agreement, refer to this Agreement, and the term
"hereafter" shall mean after, and the term "heretofore" shall mean before, the
Lease Commencement Date.
(b) Words of the masculine gender shall mean and include correlative words
of the feminine and neuter genders and words importing the singular number shall
mean and include the plural number and vice versa.
(c) Words importing persons shall include firms, associations, partnerships
(including limited partnerships), trusts, corporations and other legal entities,
including public bodies, as well as natural persons.
(d) Any headings preceding the texts of the several Articles and Sections
of this Agreement, and any table of contents appended to copies hereof, shall be
solely for convenience of reference and shall not constitute a part of this
Agreement, nor shall they affect its meaning, construction or effect.
(e) Except as otherwise provided in the Indenture or this Agreement, all
approvals, consents and acceptances required to be given or made by any Person
or party hereunder shall be at the sole discretion of the Person or party whose
approval, consent or acceptance is required.
Section 1.3. Representations and Warranties by Agency. The Agency makes the
following representations and warranties:
(a) The Agency is a corporate governmental agency constituting a body
corporate and politic and a public benefit corporation duly organized and
existing under the laws of the State, and is authorized and empowered to enter
into and effectuate the transactions contemplated on its part by this Agreement
and has taken all requisite action to carry out its obligations hereunder. By
proper action of its members, the Agency has duly authorized the execution and
delivery of this Agreement.
(b) In order to finance all or a portion of the cost of the Project, the
Agency proposes to issue the Bonds, in the aggregate principal amount of not to
exceed One Hundred Fifty-Six Million Dollars ($156,000,000) (subject to the
Agency's Reserved Right, upon the prior written request of an Authorized
Representative of the Lessees, to issue Bonds in an aggregate principal amount
exceeding $156,000,000) from time to time, in various Series, pursuant to the
Indenture, the Bond Supplemental Indenture, the Bond Resolution and a
Certificate of Determination for each Series of Bonds. Each Series of Bonds will
mature, bear interest, be redeemable and have the other terms and provisions set
forth in the Indenture and the related Certificate of Determination.
(c) The execution, delivery and performance by the Agency of this Agreement
and each other Project Document and Security Document to which it is a party and
the consummation of the transactions herein and therein contemplated have been
duly authorized by all requisite corporate action on its part and will not
violate any provision of law, any order of any court or agency of government, or
its by-laws, or any material indenture, agreement or other instrument to which
it is a party or by which it is subject to or bound, 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.
(d) Assuming due and proper execution hereof and thereof by all parties
other than the Agency, this Agreement and each other Project Document and
Security Document to which it is a party, constitutes the Agency's legal, valid
and binding obligation enforceable against it in accordance with its terms,
except as such validity, binding effect and enforceability may be limited by
(and subject to) bankruptcy, insolvency, reorganization, rehabilitation,
moratorium or other similar laws affecting the enforcement of creditors' rights
from time to time in effect and general principles of equity (regardless of
whether such enforceability is considered in a proceeding at law or in equity).
(e) There is no action or proceeding pending or, to its best knowledge and
of its officers having reason to be familiar with any such action or proceeding,
threatened by or against it by or before any court or administrative agency that
might adversely affect its ability to perform its obligations under this
Agreement and each other Project Document and Security Document to which it is a
party, and all authorizations, consents and approvals of governmental bodies or
agencies required to be obtained by it as of the date hereof in connection with
the execution and delivery of this Agreement and each other Project Document and
Security Document to which it is a party or in connection with the performance
of its obligations hereunder and thereunder has been obtained.
Section 1.4. Findings by Agency. The Agency, based upon the representations
and warranties of the Lessees contained in this Agreement and the information
contained in the application and other materials heretofore submitted by or on
behalf of the Lessees to the Agency, hereby finds and determines that the
financing of all or a portion of the costs of the Project by the Agency and the
providing of certain benefits to the Lessees in connection therewith is
reasonably necessary to discourage the Lessees from removing their operations
from the City to a location outside the City and the State and to encourage the
Lessees to proceed with the Project, and is reasonably necessary to preserve the
competitive position of the Lessees in their industry.
Section 1.5.Representations and Warranties by Lessees. In order to induce
the Agency to issue the Bonds and to enter into those Project Documents and
Security Documents to which the Agency is a party, each of the Lessees makes the
following representations and warranties:
(a) It is a corporation duly organized, validly existing and in good
standing under the laws of the State of New York, is not in violation of any
material provision of its certificate of incorporation or by-laws, and has the
corporate power and authority to own its property and assets, to carry on its
business as now being conducted by it, and to execute, deliver and perform this
Agreement and each Project Document and Security Document to which it is a
party. It is duly qualified to do business in every jurisdiction in which the
failure to so qualify would have a material adverse effect upon its properties,
business, affairs, assets or condition (financial or otherwise).
(b) The execution, delivery and performance by it of this Agreement and
each other Project Document and Security Document to which it is a party and the
consummation by the Lessees of the transactions herein and therein contemplated
have been duly authorized by all requisite corporate action on its part and will
not violate any provision of law, any order of any court or agency of
government, its certificate of incorporation or by-laws, or any material
indenture, agreement or other instrument to which it is a party or by which it
is bound or to which any of its property is subject, 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 result in the imposition of any lien, charge or
encumbrance of any nature whatsoever other than Permitted Encumbrances.
(c) Assuming due and proper execution hereof and thereof by all parties
other than the Lessees, this Agreement and each other Project Document and
Security Document to which it is a party, constitutes its legal, valid and
binding obligation enforceable against it in accordance with its terms, except
as such validity, binding effect and enforceability may be limited by
bankruptcy, insolvency, reorganization, rehabilitation, moratorium or other
similar laws affecting the enforcement of creditors' rights from time to time in
effect and by general principles of equity (regardless of whether such
enforceability is considered in a proceeding at law or in equity).
(d) There is no action or proceeding pending or, to its best knowledge,
threatened by or against it by or before any court or administrative agency that
would be likely to adversely affect its ability to perform its obligations under
this Agreement and each other Project Document and Security Document to which it
is a party; and all authorizations, consents and approvals of governmental
bodies or agencies required to be obtained by it as of the date hereof in
connection with the execution and delivery of this Agreement and of each other
Project Document and Security Document to which it is a party or in connection
with the performance of its obligations hereunder and thereunder has been
obtained.
(e) Except as provided in this Agreement, none of the Facility Equipment,
Leased Personalty, Maintenance Contracts or Tenant Improvements shall be located
or used at any location other than an Approved Equitable City Location (except
that Tenant Improvements shall be located or used only at the Facility Realty).
(f) It shall cause all Tenant Improvements, Leased Personalty (but only to
the extent of the Leased Personalty Semi-Annual Capital Investment), Facility
Equipment and Project Costs for which a sales or use tax exemption is taken
under the Pre-Bond Issuance Sales Tax Letter, the Sales Tax Letter, the Project
Agreement or this Agreement to be paid for in whole and/or reimbursed in whole
from the proceeds of the Bonds, except that Maintenance Contracts shall not be
funded with proceeds of the Bonds; provided, however, that although Bonds may
not be issued to fund the costs of Maintenance Contracts or the interest portion
of rentals under Qualified Personalty Leases, such costs, to the extent the same
shall constitute Qualified Maintenance or be with respect to a Qualified
Personalty Lease, shall be eligible under the Sales Tax Letter for Sales Tax
Savings.
(g) No Maintenance Contracts will be entered into for any property other
than for Qualified Maintenance for Facility Equipment or Leased Personalty (with
respect to which a Qualified Personalty Lease shall exist).
(h) The Project and related Agency Benefits (as defined in the Project
Agreement) are reasonably necessary to allow the Lessees to remain competitive
within their industry. The Lessees require the Project and such Agency Benefits
to induce Equitable to retain approximately 1,750 Eligible Employees (as defined
in the Project Agreement) and related operations within the City, in the absence
of which Project and Benefits, Equitable would relocate a substantial portion of
its operations and divisions outside of the City, and not thereby remain and
consolidate its operations within the City.
(i) Any costs incurred with respect to that part of the Project paid from
the proceeds of the sale of the Bonds shall be treated or capable of being
treated on the books of the Lessees as capital expenditures in conformity with
generally accepted accounting principles applied on a consistent basis.
(j) The Project will not result in the removal of an industrial,
manufacturing, warehousing or commercial plant or facility of any of the Lessees
from outside of the City (but within the State) to within the City, or in the
abandonment of one or more of such plants or facilities of any of the Lessees or
any Affiliate thereof outside of the City (but within the State).
(k) No part of the proceeds of the Bonds will be used to finance inventory
or rolling stock or will be used for working capital or to finance any other
cost not constituting a Project Cost.
(l) To the best knowledge of the Lessees, the Project is included within
the definition of "project" under the Act.
(m) Each representation or warranty made by Equitable in the application
and related materials submitted to the Agency for approval of the Project or its
financing, or by the Lessees in this Agreement and in each other Project
Document and Security Document to which any shall be a party, is true, correct
and complete in all material respects as of the date made. Each representation
or warranty made by it in any Letter of Representation and Indemnity Agreement
delivered to the Agency, the Trustee and the original purchasers of any Series
of Bonds, or in any report, certificate, financial statement or other instrument
furnished pursuant to this Agreement and any other Project Document or Security
Document, shall be true, correct and complete in all material respects as of the
date made.
(n) The aggregate amount of sales and use tax benefits received by the
Lessees pursuant to the Pre-Bond Issuance Sales Tax Letter is $169,873.39, which
amount does not exceed the Maximum Sales Tax Benefit (as defined in the Project
Agreement).
(o) No Person other than the Lessees is in occupancy or possession of any
portion of the Facility Realty (subject to Permitted Incidental Use).
(p) The Project will be designed, and the construction and operation of the
Project Property will be, in compliance with all applicable Federal, State and
local laws or ordinances (including rules and regulations) relating to safety
and environmental quality.
(q) The property included in the Project Property is either land or
property of the character subject to the allowance for depreciation under
Section 167 of the Code.
(r) The Lessees intend to operate the Project Property or cause the Project
Property to be operated in accordance with this Agreement and as a qualified
"project" in accordance with and as defined under the Act.
(s) The Lessees shall cause all Project Costs with respect to which a sales
or use tax exemption shall be or have been claimed as agent for the Agency to be
paid for in whole and/or reimbursed in whole from the proceeds of the Bonds
(other than Maintenance Contracts, and, in the case of Leased Personalty, only
to the extent of the Leased Personalty Semi-Annual Capital Investment);
provided, however, that although Bonds may not be issued to fund the costs of
Maintenance Contracts or the interest portion of rentals under Qualified
Personalty Leases, such costs, to the extent the same shall constitute Qualified
Maintenance or be with respect to a Qualified Personalty Lease, shall be
eligible under the Sales Tax Letter for Sales Tax Savings.
(t) The Prime Lease is in full force and effect without material default
thereunder by Equitable or, to the best knowledge of Equitable, the Prime
Landlord, and the Facility Realty is subject to the Prime Lease and the Company
Lease.
(u) No part of the proceeds of the Bonds will be used to finance a project
(and no sales or use tax exemption has been or will be made available under the
Pre-Bond Issuance Sales Tax Letter or the Sales Tax Letter) where facilities or
property that are primarily used in making retail sales to customers who
personally visit such facilities constitute more than one third of the total
project cost. For purposes of this representation, retail sales shall mean: (i)
sales by a registered vendor under article twenty-eight of the New York Tax Law
primarily engaged in the retail sale of tangible personal property, as defined
in subparagraph (i) of paragraph four of subdivision (b) of section eleven
hundred one of the New York Tax Law; or (ii) sales of a service to such
customers.
(v) The Facility Realty constitutes a portion of the property demised to
Equitable under the Prime Lease, and all of the Facility Realty has been the
subject of the Phase I Environmental Report referred to in Section 6.2(c)
hereof.
(w) To the best knowledge of the Lessees, there is no existing violation
against the Facility Realty filed by any court or administrative agency that may
prohibit the use or operation of the Facility Realty for its intended purposes.
(x) No sales tax exemptions will be claimed by any of the Lessees under the
Sales Tax Letter for any leasehold improvements or renovations other than the
Tenant Improvements.
(y) The execution, delivery and performance of this Agreement and of the
Company Lease by the Lessees does not constitute a breach, default or violation
of the terms of the Prime Lease, nor does it require any consent of the Prime
Landlord (which consent has not been obtained prior to the date hereof).
(z) The Facility Realty consists of floors fourteen (14) through twenty-two
(22), inclusive, together with the concourse, of the Project Building,
comprising approximately 298,238 rentable square feet.
(aa) As of April 30, 1996, the number of Eligible Employees (as defined in
the Project Agreement) within the City was 1,850.
(bb) EVLICO is a wholly-owned subsidiary of Equitable.
(cc) Equitable has subleased the Facility Realty to the Agency pursuant to
the Company Lease for a nominal rental therefor, and the Agency has been thereby
vested with a valid leasehold estate therein, free and clear of all liens,
encumbrances, security interests and servitudes other than Permitted
Encumbrances.
ARTICLE II
The Project
Section 2.1. The Project. (a) The Lessees will, on behalf of the Agency,
and from time to time and in the ordinary course of their business, continue
and/or proceed with the making of Tenant Improvements, the acquisition and
installation of the Facility Equipment, the leasing (or subleasing) or licensing
(or sublicensing) of Leased Personalty and the entering into of Maintenance
Contracts, all to be effected in accordance with this Agreement, the Indenture,
the Project Agreement and the Prime Lease. The Project Costs shall be paid or
reimbursed from the Project Fund established under the Indenture as provided in
this Section 2.1. All contractors, materialmen, vendors, suppliers and other
companies, firms or persons furnishing labor, machinery, equipment, services or
materials for or in connection with the Project shall be selected by the
Lessees.
(b) The Lessees shall be responsible for the payment of (i) all of the
costs and expenses in connection with the preparation of any instruments of
lease of the Facility Realty to the Agency, and the delivery of any such
instruments and documents and their filing and recording, if required, (ii) all
taxes and charges payable in connection with such leasing, or attributable to
periods prior to such leasing, to the Agency as set forth in Section 2.1(a)
hereof, and (iii) all shipping and delivery charges and all other expenses or
claims incurred by or on behalf of the Lessees in connection with the Project.
(c) The Agency and the Lessees acknowledge and agree that the Project
Property is to be acquired, leased (or subleased), licensed (or sublicensed),
equipped, installed, maintained, replaced and repaired for use at Approved
Equitable City Locations (except that Tenant Improvements shall be effected only
at the Facility Realty), and that the nature thereof, all as comprising the
Project, may change from time to time over the term of this Agreement to reflect
amendments, modifications, replacements, accessions to and supplements made to
the Project. Upon the acquisition, leasing, subleasing, licensing, sublicensing,
equipping, furnishing, installation, maintenance, repair or replacement of the
Project Property, such property shall become subject to the leasehold interest
of this Agreement.
At the request of the Agency to the Lessees, the Lessees shall provide such
reasonable additional information and clarifications concerning any portion of
the Project Property to be acquired, equipped, installed, leased, subleased,
maintained, replaced or repaired, as shall be reasonably requested by the
Agency.
All Facility Equipment and Tenant Improvements financed in whole or in part
from the proceeds of the Bonds, and all Leased Personalty and Maintenance
Contracts, shall be enumerated in sufficient detail for accurate identification
(as to date of acquisition, vendor, location, physical description, serial
number (if applicable and to the extent available), price and the amount of
sales and use tax exemptions afforded to any of the Lessees in connection with
such acquisition) in the Project Property Registry.
(d) The Lessees will obtain or cause to be obtained all necessary approvals
from any and all governmental agencies requisite to the effectuation by the
Lessees of the Project and the operation of the Project Property, all of which
will be done in compliance with all Federal, State and local laws, ordinances
and regulations applicable thereto, and with the conditions and requirements of
all policies of insurance required to be maintained hereunder with respect to
the Project Property and this Agreement. The Lessees will further obtain or
cause to be obtained all necessary permits, authorizations and licenses from
appropriate authorities, authorizing the operation and use of the Project
Property for the purposes contemplated by this Agreement and shall furnish
copies of same to the Agency immediately upon receipt thereof.
(e) Upon request, the Lessees will extend to the Agency, or the Agency will
extend to the Lessees, the benefit of all vendors' warranties received by the
other party (to the extent permitted under the terms of such warranties) in
connection with the Project Property, including any warranties given by
contractors, manufacturers or service organizations who perform work with
respect to the Project.
(f) The Lessees shall take such action and institute such proceedings as
shall be reasonably necessary to cause all contractors and material suppliers to
complete their contracts in accordance with the terms of said contracts. The
Agency will cooperate in any such action or proceeding, at the Lessees' sole
cost and expense, provided that the Agency shall not be required to take any
action it does not deem to be reasonable. Any amounts recovered by way of
damages, refunds, adjustments or otherwise in connection with the foregoing,
after deduction of expenses incurred in such recovery, shall be paid to the
Lessees.
(g) Concurrently with the execution of this Agreement, the Lessees will
surrender the Pre-Bond Issuance Sales Tax Letter to the Agency for cancellation,
and the Agency shall make available to the Lessees the Sales Tax Letter.
(h) Title to, or a leasehold or license interest in, as appropriate, all
materials, equipment, machinery and other property intended to be incorporated
or installed as Tenant Improvements and thereby part of the Project Property
(excluding the Lessees' Property) shall vest in the Agency immediately upon
delivery to or installation or incorporation into the Facility Realty (or in the
case of the Facility Equipment, Leased Personalty or Maintenance Contracts, upon
the execution of a contract, lease, ▇▇▇▇, invoice or purchase order therefor as
agent for the Agency) or payment therefor, whichever shall be so provided in the
related contract, invoice, ▇▇▇▇ or purchase order. The Lessees shall take all
action reasonably necessary to protect such title or leasehold interest of the
Agency against claims of any third parties.
(i) As and to the extent required by applicable law, the Lessees shall
annually file a statement with the New York State Department of Taxation and
Finance, on a form and in a manner as is prescribed by the Commissioner of the
New York State Department of Taxation and Finance, of the value of all sales and
use tax exemptions claimed by any of the Lessees or agents of any of the
Lessees, including, but not limited to, consultants or subcontractors of such
agents, under the authority granted pursuant to the Pre-Bond Issuance Sales Tax
Letter, the Sales Tax Letter, the Project Agreement and/or this Agreement.
Should any of the Lessees fail to comply with the foregoing requirement, the
Lessees shall immediately cease to be the agent for the Agency in connection
with the Project (such agency relationship being deemed to be immediately
revoked) without any further action of the parties. Nothing herein shall be
construed as a representation by the Agency that any property acquired as part
of the Project is, in fact, exempt from sales taxes or use taxes.
Section 2.2. Commitment to Project. The Lessees unconditionally covenant
and agree that they will, from time to time and in the ordinary course of their
business, proceed with the Tenant Improvements, with the acquisition and
installation of Facility Equipment, and with the leasing (or subleasing) or
licensing (or sublicensing) of Leased Personalty and the entering into of
Maintenance Contracts, all on behalf of and as agent for the Agency, and all in
accordance with this Agreement, the Prime Lease (with respect to Tenant
Improvements), the Project Agreement and the Indenture. In the event that moneys
in the Project Fund are not sufficient to pay Project Costs in full, the Lessees
shall, subject to the agreements set forth in Sections 2.1 and 2.3 hereof and in
the Project Agreement, pay that portion of such Project Costs as may be in
excess of the moneys therefor in the Project Fund and, subject to the provisions
below, shall not be entitled to any reimbursement therefor from the Agency, the
Trustee, the Holders of any of the Bonds or any other Person, nor shall the
Lessees be entitled to any diminution of the rents payable or other payments to
be made under this Agreement or any other Project Document or Security Document,
provided that Project Costs may be funded or reimbursed out of any funds which
thereafter may be in the Project Fund.
Section 2.3. Issuance of Bonds. (a) In order to finance all or a portion of
the Project Costs, the Agency proposes to issue the Bonds, in the aggregate
principal amount of up to One Hundred Fifty-Six Million Dollars ($156,000,000)
(subject to the Agency's Reserved Right to issue Bonds in an aggregate principal
amount exceeding One Hundred Fifty-Six Million Dollars ($156,000,000)) from time
to time upon request therefor by an Authorized Representative of the Lessees, in
various Series, pursuant to the Indenture, the Bond Supplemental Indenture, the
Bond Resolution and a Certificate of Determination for each Series of Bonds.
Each Series of Bonds will mature, bear interest, be redeemable and have the
other terms and provisions set forth in the Indenture and the related
Certificate of Determination.
(b) Contemporaneously with the execution and delivery of this Agreement,
the Agency will sell and deliver the Initial Bonds under and pursuant to the
Bond Resolution, a Certificate of Determination, the Indenture and the Bond
Supplemental Indenture. The Lessees shall request the Agency to issue further
Series of Bonds from time to time during the term of this Agreement pursuant to
Section 2.03 of the Indenture, and the Lessees shall make such requests, deliver
such documents, agreements and certificates (all as more fully set forth in the
Indenture), and shall pay such costs and expenses as shall enable the Agency to
issue each such additional Series of Bonds. It is the intention of the parties
hereto to cause the issuance of multiple Series of Bonds beginning on the Lease
Commencement Date with the Initial Bonds and thereafter no less often than
semi-annually on each March 15 and September 15 commencing September 15, 1996
for the payment and/or reimbursement of Project Costs as provided in the Project
Agreement; provided, however, that no further Series of Bonds shall be required
to be issued after the later of (y) the receipt by the Lessees of the Maximum
Sales Tax Benefit (as defined in the Project Agreement), and (z) the issuance of
a final Series of Bonds necessary for the Lessees to comply with the provisions
of Section 3.1(d)(iii)(C) of the Project Agreement. The proceeds of sale of each
Series of Bonds shall be deposited in the Project Fund and applied to the
payment of Project Costs in accordance with the provisions of the Indenture.
Pending such application, amounts in the Project Fund may be invested as
provided in the Indenture. Nothing contained in this Section 2.3(b) shall be
deemed to be an obligation of the Agency to obtain a purchaser for any Series of
Bonds.
(c) The Lessees shall cause the Agency to issue in accordance with the
Indenture (i) on the Lease Commencement Date at least $320,000 in aggregate
principal amount of Bonds, (ii) at least $1,000,000 in aggregate principal
amount of Bonds by no later than two (2) years after the Lease Commencement
Date, (iii) at least $2,500,000 in aggregate principal amount of Bonds by no
later than four (4) years after the Lease Commencement Date, and (iv) at least
$4,000,000 in aggregate principal amount of Bonds by no later than five (5)
years after the Lease Commencement Date. Further, the Lessees shall cause the
aggregate principal amount of Bonds Outstanding during the term of this
Agreement to be not less than the following respective principal amounts for the
corresponding Annual Bond Amount Periods:
Annual Bond Minimum Outstanding
Amount Period Principal Amount
First $ 320,000
Second 1,000,000
Third 2,000,000
Fourth 2,500,000
Fifth and thereafter 4,000,000
(d) Subject to the terms of the related Series of Bonds, the Lessees shall
have the right to redeem the Bonds in whole or in part, provided, however, that,
(y) no such redemption shall cause the principal amount of Bonds remaining
Outstanding to violate the provisions of Section 2.3(c) above, and (z) no Series
of the Bonds shall be redeemable prior to six (6) months after the date of
issuance of such Series of Bonds, except in connection with a retirement of all
Bonds upon termination of this Agreement in accordance with Articles VII and
VIII hereof.
Section 2.4. Title Insurance. On the Lease Commencement Date, the Lessees
will obtain leasehold title insurance in an amount not less than $1,000,000
insuring the Agency's leasehold interest under the Company Lease in the Facility
Realty against loss as a result of defects in such leasehold interest of the
Agency. Any proceeds of such leasehold title insurance shall be paid to the
Trustee for deposit in a special account to be applied to remedy the defect in
title, or, if not so capable of being applied, or if amounts remain, shall be
paid over to the Lessees.
ARTICLE III
Lease of Project Property and Rental Provisions
Section 3.1. Lease of the Project Property. The Agency hereby leases to the
Lessees and the Lessees hereby lease from the Agency the Project Property upon
and subject to the terms and conditions herein set forth. The Lessees shall,
subject to the provisions of Sections 5.1, 6.17, 6.18 and 9.2 of this Agreement,
at all times during the term of this Agreement use and operate the Project
Property as a qualified "project" for the operation of the Equitable Business in
accordance with the provisions of the Act and for the general purposes specified
in the recitals to this Agreement. The Lessees shall not use or operate the
Project Property or allow the Project Property or any part thereof to be used or
operated for any unlawful purpose or in a manner which constitutes a nuisance,
public or private, or may make void or voidable any insurance required hereunder
then in force with respect thereto.
Section 3.2. Duration of Term. The term of this Agreement shall commence on
the date of execution and delivery of this Agreement and shall expire on the
earlier of December 31, 2011 or such earlier date as this Agreement shall be
terminated as hereinafter provided. The Agency hereby delivers to the Lessees
and the Lessees hereby accept such possession of the Project Property as the
Agency has or may have therein.
Section 3.3. Rental Provisions; Pledge of Agreement and Rent. The Lessees
covenant on each Lease Rental Payment Date to make rental payments directly to
the Trustee for deposit in the Bond Fund. Such rental shall be paid during the
term of this Agreement in immediately available funds on or prior to each due
date for the payment of the principal of, interest and redemption premium, if
any, on each Series of the Bonds as set forth in the Indenture until the
principal of, redemption premium, if any, and interest on the Bonds shall have
been fully paid, or provision for the payment thereof shall have been made in
accordance with the provisions of Section 10.01 of the Indenture. The amount of
each such rental payment shall be an amount sufficient, together with any
amounts then available in the Bond Fund at the time of payment of such rental,
to enable the Trustee to make payment, on each date on which the payment of the
principal of, redemption premium, if any, and interest on the Bonds shall be
due, of an amount sufficient to pay the then due total amount of interest or
interest and principal (whether at maturity or by redemption or by acceleration
or otherwise as provided in the Indenture) and the then due redemption premium,
if any, on the Bonds. Notwithstanding anything in the foregoing to the contrary,
if the amount on deposit and available in the Bond Fund is not sufficient to pay
the principal of, redemption premium, if any, and interest on the Bonds when due
(whether at maturity or by redemption or by acceleration or otherwise as
provided in the Indenture), the Lessees shall forthwith pay the amount of such
deficiency in immediately available funds to the Trustee for deposit in the Bond
Fund and such payment shall constitute rental payments under this Section 3.3.
In the event the Lessees should fail to make or cause to be made any of the
payments required under the foregoing provisions of this Section, the item or
installment not so paid shall continue as an obligation of the Lessees until the
amount not so paid shall have been fully paid and the Lessees shall pay
immediately upon demand therefor by the Trustee the amount of any administrative
charge as set forth in the Indenture for such overdue payment. The Lessees shall
also pay any amounts stated under the Indenture to be paid by the Lessees.
Pursuant to the Indenture, the Agency shall pledge and assign
to the Trustee as security for the Bonds all of the Agency's right, title and
interest in this Agreement (except for the Agency's Reserved Rights), including
all rental payments under Sections 3.3 and 8.1 hereof, and in furtherance of
said pledge the Agency will unconditionally assign such rental payments to the
Trustee for deposit in the Bond Fund, in accordance with the Indenture. The
Lessees hereby consent to the above-described pledge and assignment.
The Lessees covenant and agree that they will comply with the provisions of
the Indenture with respect to the Lessees, and that the Trustee shall have the
power, authority, rights and protections provided in the Indenture. The Lessees
further covenant to use their best efforts to cause there to be obtained for the
Agency any documents or opinions required of the Agency under the Indenture.
The Lessees shall have the right to make advance rental payments under
Section 8.1 of this Agreement to the Trustee for deposit in the Bond Fund as and
to the extent provided in the Indenture for redemption of the Bonds, subject to
the provisions of Sections 2.3 and 8.1 hereof and the Project Agreement.
Section 3.4. Obligation of Lessees Unconditional. The obligation of the
Lessees to pay the rent and all other payments provided for in this Agreement
and to maintain the Project Property in accordance with Section 4.1 of this
Agreement shall be absolute and unconditional, irrespective of any defense or
any rights of set-off, recoupment or counterclaim or deduction and without any
rights of suspension, deferment, diminution or reduction they or any of them
might otherwise have against the Agency, the Trustee, the Holder of any Bond or
any other Person whatsoever. For so long as any of the Bonds remain Outstanding,
the Lessees will not suspend or discontinue any such payment or terminate this
Agreement (other than such termination as is provided for hereunder) for any
cause whatsoever, and the Lessees irrevocably waive all rights now or hereafter
conferred by statute or otherwise to quit, terminate, cancel or surrender this
Agreement or any obligation of the Lessees under this Agreement except as
provided in this Agreement or to any abatement, suspension, deferment,
diminution or reduction in the rentals or other payments hereunder.
Section 3.5. Rent Relating to Leased Personalty and Maintenance Contracts.
The Lessees shall pay to the lessors and licensors of all Leased Personalty and
to the counterparties under all Maintenance Contracts (and not to the Trustee),
all payments to be made by the Agency, and perform all obligations required of
the Agency, under leases (or subleases) or licenses (or sublicenses) for Leased
Personalty and Maintenance Contracts, as and at the times and in the amounts the
same shall become payable, and as and at the times such obligations are required
to be performed, under such leases (or subleases) or licenses (or sublicenses)
and Maintenance Contracts.
ARTICLE IV
Maintenance, Taxes Maintenance, Taxes and Insurance
Section 4.1. Maintenance, Alterations and Improvements. (a) During the term
of this Agreement, the Lessees will keep the Project Property in good and safe
operating order and condition, ordinary wear and tear (and damage from fire or
other casualty) excepted, will use and operate the Project Property in the
manner for which it was designed and intended and contemplated by this
Agreement, and will make all replacements and repairs thereto (whether ordinary
or extraordinary, foreseen or unforeseen) necessary to ensure the continuity of
the operations of the Lessees at Approved Equitable City Locations for the
purposes contemplated by this Agreement and the Project Agreement. All
replacements and repairs shall be performed in a good and workmanlike manner and
be made and installed in compliance with the requirements, if any, of all
governmental bodies. The Agency shall be under no obligation to replace,
service, test, adjust, erect, maintain or effect replacements, renewals or
repairs of the Project Property, to effect the replacement of any inadequate,
obsolete, worn-out or unsuitable parts of the Project Property, or to furnish
any utilities or services for the Project Property and the Lessees hereby agree
to assume full responsibility therefor.
(b) The Lessees shall have the right to make such alterations, replacements
or repairs of, or additions to, the Project Property or any part thereof from
time to time as they in their discretion may determine to be desirable for their
uses and purposes, provided that (i) such additions, alterations, replacements
or repairs are in compliance with all applicable Legal Requirements (as defined
in Section 4.6 hereof), (ii) such additions, alterations, replacements or
repairs are promptly and fully paid for by the Lessees in accordance with the
terms of the applicable contract(s) therefor, and in order that the Project
Property shall at all times be free of any mortgage, lien, charge, encumbrance,
security interest or claim other than Permitted Encumbrances, subject to any
good faith disputes as the Lessees may have and prosecute with respect thereto,
(iii) title thereto (in the case of Tenant Improvements and Facility Equipment)
or a license or leasehold (in the case of Leased Personalty) interest therein
shall be deemed to be vested in the Agency, (iv) such additions, alterations,
replacements or repairs do not change the nature of the Project Property so that
it would not constitute a commercial facility and a qualified "project" as
defined in the Act for use for the Equitable Business, and (v) the Lessees shall
have furnished to the Agency a labor and materials payment bond, or other
security, reasonably satisfactory to the Agency (as provided in Section 4.1(e)
hereof). All alterations of, substitutions for, replacements of and additions to
the Project Property shall be deemed to constitute a part of the Project
Property subject to this Agreement, and the Lessees shall deliver or cause to be
delivered to the Agency appropriate documents as may be reasonably necessary to
convey title to, or license or leasehold interest in, such property to the
Agency and to subject such property to this Agreement, free and clear of all
liens, charges, encumbrances, security interests or claims other than Permitted
Encumbrances.
(c) The Lessees shall have the right, subject to the Project Agreement, to
install, remove, repair, replace or finance or permit to be installed, removed,
repaired, replaced or financed, at the Facility Realty, machinery and equipment,
including, without limitation, telecommunications equipment, data processing
equipment and trade fixtures installed by the Lessees, and all furniture,
furnishings and other personal property (the "Lessees' Property"), not financed
from the proceeds of the Bonds and with respect to which no sales or use tax
exemption shall have been received pursuant to the Pre-Bond Issuance Sales Tax
Letter or the Sales Tax Letter or otherwise constituting Project Property
without conveying title to or any license or leasehold interest in such property
to the Agency nor subjecting such property to this Agreement. The Agency shall
not be responsible for any loss of or damage to the Lessees' Property. The
Lessees shall have the right to create or permit to be created any mortgage,
encumbrance, lien or charge on, or conditional sale or other title retention
agreement with respect to, the Lessees' Property.
(d) The Lessees shall not create, permit or suffer to exist any mortgage,
encumbrance, lien, security interest, claim or charge against the Project
Property or any part thereof, or the interest of the Lessees in the Project
Property or this Agreement, except for Permitted Encumbrances and except as
provided in Section 6.6 hereof.
(e) If and to the extent required by the New York State Finance Law ss.137,
prior to executing any contract with any party for any improvement (as such term
is defined in the New York Lien Law) in connection with the Project or the
Project Property or the provision of any goods or services in connection
therewith, and prior to authorizing any party to undertake such improvement (or
the provision of such goods and services) without a contract, the Lessees shall
deliver to the Agency a copy of the proposed contract therefor along with a
bond, in compliance with State Finance Law ss.137, guaranteeing prompt payment
of monies due all persons furnishing labor or materials for the contractor or
his subcontractor in the prosecution of his work provided for in such contract.
The Agency shall have no liability or responsibility for the cost of such
bond(s).
Section 4.2. Removal of Project Property. (a) The Lessees acknowledge that
the Agency is providing financing assistance for the Project and certain related
sales and use tax exemptions and other benefits to the Lessees for the purpose
of inducing the Lessees to proceed with the Project and to comply with the
covenants contained in this Agreement and the Project Agreement. The
aforementioned benefits are being provided solely for the purpose of relocating
and upgrading, as the case may be, the operations of the Lessees (subject to the
Permitted Incidental Use) at Approved Equitable City Locations and not for the
purpose of assisting any other facility or any other Person. To this end, the
Lessees hereby represent, warrant and covenant to and with the Agency that none
of the systems, Tenant Improvements, machinery, equipment or other property
constituting part of the Project Property or as may be acquired by any of the
Lessees from time to time in the name of the Agency for installation or location
at Approved Equitable City Locations, but shall have not yet been delivered to
and installed at an Approved Equitable City Location (in each case, the
"Existing Project Property") will ever be acquired, leased or licensed for any
purpose other than for installation and use at or location in Approved Equitable
City Locations (except that Tenant Improvements shall be installed only at the
Facility Realty) by the Lessees (subject to the Permitted Incidental Use) for
use in the Equitable Business nor, except as permitted below in this Section
4.2, will any of the Existing Project Property ever be removed from Approved
Equitable City Locations (either on a temporary or permanent basis) prior to the
expiration of three (3) years after the installation or location of the
respective item of Existing Project Property at the Approved Equitable City
Locations (the "Retention Period"), unless (i) such removal is of Leased
Personalty and the Agency is no longer to be a party (through a Lessee acting as
agent on behalf of the Agency) to the related Qualified Personalty Lease after
such removal, (ii) in the case of Facility Equipment, simultaneously with such
removal either an amount equal to the sales tax that would have been payable at
the original time of such purchase with respect to the purchase of such item of
Facility Equipment (based upon its fair market value at the time of its
removal), but for the Pre-Bond Issuance Sales Tax Letter or the Sales Tax
Letter, shall be paid by the Lessees to the Agency with respect to the item or
items being removed; or (iii) there shall be delivered to the Agency, except to
the extent the provisions of Sections 4.2(b) or (c) below shall apply and have
been complied with, a certificate of an Authorized Representative of the Lessees
stating that such item of the Existing Project Property is obsolete or useless,
or that the Lessees have a good faith operational or business reason for such
removal, in relation to the conduct of the Equitable Business by the Lessees
(subject to the Permitted Incidental Use) at Approved Equitable City Locations
(in which event the provisions of Sections 4.2(b) and (c) below shall be
inapplicable). After the expiration of the Retention Period, the Lessees may
remove, transfer, sell or dispose of any item of Existing Project Property from
Approved Equitable City Locations, provided that such removal, transfer, sale or
disposition will not violate any other covenant or agreement of the Lessees
hereunder, under the Project Agreement or under any other Security Document or
Project Document. In no event, however, will the Lessees cause the removal,
transfer, sale or disposition of Existing Project Property from Approved
Equitable City Locations in the aggregate such that the original cost of the
remaining Existing Project Property shall be less than (w) $500,000 from the
Lease Commencement Date until the first anniversary thereof, (x) $1,000,000 from
the first anniversary of the Lease Commencement Date until the third anniversary
thereof, (y) $3,500,000 from the third anniversary of the Lease Commencement
Date until the fifth anniversary thereof, and (z) $5,000,000 thereafter.
(b) Prior to the expiration of the Retention Period as to any item of
Existing Project Property, the Lessees may remove such item from Approved
Equitable City Locations on a temporary basis ("Temporary Removals") provided,
that, no such Temporary Removal shall be effected if
(i) an Approved Equitable City Location ceases to be the "permanent
location" to which the item of Existing Project Property is to be returned after
its temporary off-location use or repair,
(ii) the Temporary Removal is not effected for a good faith business
purpose consistent with the Equitable Business conducted by the Lessees (subject
to the Permitted Incidental Use) at an Approved Equitable City Location, and
(iii) the item of Existing Project Property is to be absent from an
Approved Equitable City Location for a period in excess of ninety (90) days,
subject, however, to any delays as a result of Force Majeure.
Notwithstanding the limitations set forth in paragraph (iii) above, upon the
occurrence of an unforeseen event or circumstance unrelated to the financial or
economic condition of any of the Lessees which, in the good faith business
judgment of the Lessees has precipitated an emergency condition necessitating
the extension of the 90-day Temporary Removal period referred to in clause (iii)
above, such Temporary Removal period may be extended for thirty (30) days
following the cessation of such emergency condition, provided that the Lessees
deliver written notice to the Agency of the event or circumstance precipitating
such emergency condition, and use good faith diligent efforts to effect the
return of the item of Existing Project Property to an Approved Equitable City
Location as expeditiously as possible under the circumstances.
(c) Prior to the expiration of the Retention Period as to any item of
Existing Project Property, the Lessees may remove, transfer, sell or otherwise
dispose of such item from Approved Equitable City Locations on a permanent basis
("Permanent Removals") and thereby acquire such item of Existing Project
Property from the Agency, provided, that,
(i) the Lessees shall acquire for installation at Approved Equitable City
Locations (from sources other than the proceeds of Bonds and not through any
sales or use tax exemption pursuant to the Sales Tax Letter) a substitute or
replacement item of property having equal or greater utility and capability (or
having a comparable lesser utility or capability if the Lessees' business needs
have diminished) as the item of Existing Project Property being permanently
removed from an Approved Equitable City Location, and convey title to such
substitute or replacement item of property to the Agency as part of the Project
Property and thereby subject such property to the leasehold estate of this
Agreement as if originally acquired as part of the Project Property; or
(ii) if the Lessees shall seek to effect a Permanent Removal of Existing
Project Property for reasons other than as permitted in Section 4.2(a)(iii) or
4.2(c)(i) above, and such Permanent Removal is occasioned by unforeseen
circumstances but in accordance with a good faith business purpose on the part
of the Lessees and not as part of any systematic or programmatic transfer of
Existing Project Property from Approved Equitable City Locations, the Lessees
may on an occasional and immaterial basis effect such Permanent Removal;
provided that the Lessees shall deliver to the Agency, with each certificate
delivered under Section 3.1(d)(v)(A) of the Project Agreement, (y) a certificate
of an Authorized Representative of the Lessees confirming that such Permanent
Removal is being effected in a manner and for a purpose consistent with the
conditions permitting such Permanent Removal as provided above in this Section
4.2(c)(ii) and not in violation of any other covenant, condition or agreement on
the part of the Lessees hereunder, and (z) an amount, certified as correct by an
Authorized Representative of the Lessees, of the sales tax that would have been
payable at the time of original purchase based upon the fair market value
thereof at the time of its removal.
(d) Notwithstanding the foregoing, the Lessees shall effect no Temporary
Removals or Permanent Removals of Existing Project Property from Approved
Equitable City Locations if any such removal would change the nature of the
Project Property as a commercial facility and a qualified "project" as defined
under the Act to be used for the Equitable Business.
(e) Upon the written request of an Authorized Representative of the
Lessees, the Agency shall deliver to the Lessees appropriate documents conveying
to the Lessees all of the Agency's right, title and interest in any of the
Existing Project Property removed from Approved Equitable City Locations
pursuant to this Section 4.2. The Lessees shall pay all reasonable costs and
expenses (including reasonable counsel fees) incurred in connection with such
removal and any substitution or replacement.
(f) The removal from Approved Equitable City Locations of any Existing
Project Property pursuant to the provisions of this Section 4.2 shall not
entitle any of the Lessees to any abatement or reduction in the rentals and
other amounts payable by any of the Lessees under this Agreement or any other
Project Document or Security Document.
Section 4.3. Taxes, Assessments and Charges. The Lessees shall pay or cause
to be paid when the same shall become due all taxes and assessments, general and
specific, if any, levied and assessed upon or against the Project Property, this
Agreement, any estate or interest of the Agency or the Lessees in the Project
Property, or the rentals or other payments hereunder during the term of this
Agreement, and all water and sewer charges, special district charges,
assessments, Business Improvement District charges and other governmental
charges and impositions whatsoever, foreseen or unforeseen, ordinary or
extraordinary, under any present or future law, and charges for public or
private utilities or other charges incurred in the occupancy, use, operation,
maintenance or upkeep of the Project Property, all of which are herein called
"Impositions". The Lessees may pay any Imposition in installments if so payable
by law, whether or not interest accrues on the unpaid balance. The Lessees
acknowledge that the provisions of section 412-a of the New York Real Property
Tax Law and section 874 of the New York General Municipal Law do not entitle the
Agency to exemption from water and sewer charges, special assessments and
special ad valorem levies.
In the event the Facility Realty is exempt from Impositions (other than
Sales and Use Taxes, as defined in the Project Agreement) solely due to the
Agency's interest in the Facility Realty, the Lessees shall promptly pay all
such Impositions to the appropriate taxing authorities equivalent to the
Impositions which would have been imposed on the Facility Realty if the Agency
had no such interest in the Facility Realty.
The Lessees may at their sole cost and expense and in good faith commence
and prosecute proceedings to contest the amount or validity or application, in
whole or in part, of any such Imposition (upon prior written notice to the
Agency and the Trustee), provided, that, (i) if the Lessees withhold payment,
such proceeding shall suspend the execution or enforcement of any lien arising
from the non-payment of such Imposition against the Project Property or any part
thereof or any interest therein or in this Agreement of the Agency, the Lessees
or the Trustee or against any of the rentals or other amounts payable under this
Agreement or the Project Agreement, (ii) neither the Project Property nor any
portion thereof or interest therein would be in any reasonably imminent danger
of being sold, forfeited or lost, and (iii) neither any of the Lessees, the
Agency nor the Trustee would be in any reasonable danger of any civil or any
criminal liability for failure to pay such Imposition.
Section 4.4. Insurance
(a) At all times throughout the term of this Agreement, including without
limitation during any period of construction or reconstruction of the Facility
Realty or any other portion of the Project Property, the Lessees shall maintain
or cause to be maintained insurance with respect to the Project Property, with
insurance companies licensed to do business in the State, against such risks,
loss, damage and liability (including liability to third parties) and for such
amounts as are customarily insured against by other enterprises of like size and
type as that of the Lessees, including, without limitation:
(i) To the extent not covered by the public liability insurance referred to
below, Owners & Contractors Protective Liability Insurance for the benefit of
the Lessees and the Agency in a minimum amount of $25,000,000 (or such greater
amount as may then be required under the Prime Lease) aggregate coverage for
personal injury and property damage;
(ii) Builders' All Risk Insurance written on "100% builders' risk completed
value, non-reporting form" including coverage therein for "completion and/or
premises occupancy" during any period of construction or reconstruction of the
Project Property, and at all other times coverage for property damage insurance,
all of which insurance shall include coverage for removal of debris, insuring
the buildings, structures, improvements, systems, machinery, equipment,
facilities, fixtures and other property constituting a part of the Project
Property against loss or damage to the Project Property by fire, lightning,
vandalism, malicious mischief and other casualties, with standard extended
coverage endorsement covering perils of windstorm, hail, explosion, aircraft,
vehicles and smoke (except as limited in the standard form of extended coverage
endorsement at the time in use in the State) at all times in an amount such that
the proceeds of such insurance shall be sufficient to prevent the Lessees or the
Agency from becoming a co-insurer of any loss under the insurance policies but
in any event in amounts equal to not less than 80% of the actual replacement
value of the Project Property as determined by a qualified insurance appraiser
or insurer (selected by the Lessees and reasonably approved by the Agency) not
less often than once a year, at the expense of the Lessees; any such insurance
may provide that the insurer is not liable to the extent of the first $50,000
with the result that the Lessees are their own insurer to the extent of $50,000
of such risks;
(iii) Public liability insurance in accordance with customary insurance
practices for similar operations with respect to the Project Property and the
business thereby conducted in a minimum amount of $25,000,000 (or such greater
amount as may then be required under the Prime Lease), which insurance (A) will
also provide coverage of the Lessees' obligations of indemnity under Section 6.2
hereof (other than under Section 6.2(c) hereof to the extent not available to
either of the Lessees or not otherwise maintained by either of the Lessees), (B)
may be effected under overall blanket or excess coverage policies of the
Lessees, provided, however, that at least $1,000,000 is effected by a
comprehensive liability insurance policy, and (C) shall not contain any
provisions for deductible amount in excess of $50,000;
(iv) Boiler and machine property damage insurance in respect of any steam
and pressure boilers and similar apparatus located on or about the Facility
Realty from risks normally insured against under boiler and machinery policies
and in amounts and with deductibles customarily obtained for business
enterprises similar to Equitable;
(v) Workers' compensation insurance, disability benefits insurance and such
other forms of insurance which any of the Lessees or the Agency is required by
law to provide covering loss resulting from injury, sickness, disability or
death of the employees of any of the Lessees or any Affiliate thereof, or any
contractor or subcontractor performing work with respect to the Project
Property; the Lessees shall require that all said contractors and subcontractors
shall maintain all forms or types of insurance with respect to their employees
required by laws; and
(vi) Such other customary and reasonable insurance in such reasonable
amounts and against such insurable hazards as the Agency from time to time may
reasonably require.
(b) All insurance required by Section 4.4(a) above shall be procured and
maintained in financially sound and generally recognized responsible insurance
companies authorized to write such insurance in the State, either (i) having a
"XIII/-A" rating or better by A.M. Best & Co., or (ii) approved by the Agency
(such approval not to be unreasonably withheld, delayed or conditioned).
(c) Each of the policies or binders evidencing the insurance required above
to be obtained shall
(i) designate (except in the case of workers' compensation insurance) the
Lessees, the Agency and the Trustee as additional named insureds as their
respective interests may appear;
(ii) provide that all insurance proceeds with respect to loss or damage to
the Project Property be endorsed and made payable to the Lessees and shall name
the Lessees as a loss payee under the standard loss payee clause, which
insurance proceeds shall be paid over to the Lessees and applied as provided in
Section 5.1 hereof;
(iii) provide that there shall be no recourse against the Agency or the
Trustee for the payment of premiums or commissions or (if such policies or
binders provide for the payment thereof) additional premiums or assessments;
(iv) provide that in respect of the interest of the Agency or the Trustee
in such policies, the insurance shall not be invalidated by any action or
inaction of any of the Lessees or any other Person and shall insure the Agency
and the Trustee regardless of, and any losses shall be payable notwithstanding,
any act or negligence, including any breach of any condition, declaration or
warranty contained in any such policy of insurance by the Agency or the Trustee,
any of the Lessees or any other Person; the occupation, operation or use of the
Project Property for purposes more hazardous than permitted by the terms of the
policy; any foreclosure or other proceeding or notice of sale relating to the
Project Property; or any change in the title to or ownership of all or any
portion of the Project Property;
(v) provide that such insurance shall be primary insurance without any
right of contribution from any other insurance carried by the Agency or the
Trustee to the extent that such other insurance provides the Agency or the
Trustee with contingent and/or excess liability insurance with respect to its
interest in the Project Property;
(vi) provide that if the insurers cancel such insurance for any reason
whatsoever, including the insured's failure to pay any accrued premium, or the
same is allowed to lapse or expire, or there be any reduction in amount, or any
material change is made in the coverage, such cancellation, lapse, expiration,
reduction or change shall not be effective as to the Agency or the Trustee until
at least thirty (30) days after receipt by the Agency or the Trustee of written
notice by such insurers of such cancellation, lapse, expiration or change;
(vii) waive any right of subrogation of the insurers thereunder against the
Agency and the Trustee, and waive any right of the insurers to any setoff or
counterclaim or any other deduction, whether by attachment or otherwise, in
respect of any liability of the Agency or the Trustee; and
(viii) contain such other terms and provisions as any owner or operator of
facilities similar to the Project Property would, in the prudent management of
properties, require to be contained in policies, binders or interim insurance
contracts with respect to facilities similar to the Project Property owned or
operated by Equitable or its Affiliates.
(d) The Net Proceeds of any insurance received with respect to any loss or
damage to the property of the Project Property shall be paid to the Lessees and
applied in accordance with Section 5.1 hereof.
(e) On the Lease Commencement Date, the Lessees shall deliver or cause to
be delivered to the Agency and the Trustee policies, binders or certificates of
insurance evidencing compliance with the insurance requirements of this Section
4.4. At least seven (7) Business Days prior to the expiration of any such
policy, the Lessees shall furnish the Agency and the Trustee with evidence that
such policy has been renewed or replaced or a certificate of an Authorized
Representative of the Lessees to the effect that such insurance is no longer
required by this Agreement.
(f) Upon each exercise by the Lessees in accordance with Section 6.18
hereof of its option to cause additional portions of the premises within the
Project Building to be made subject to the Prime Lease, the Company Lease and
this Agreement, the Lessees shall, on or prior to the addition of such premises,
cause such additional premises to be covered by the types of insurance required
under this Section 4.4 as part of the Project Property.
(g) The Lessees shall, at their own cost and expense, make all proofs of
loss and take all other steps necessary or reasonably requested by the Agency or
the Trustee to collect from insurers for any loss covered by any insurance
required to be obtained by this Section 4.4. The Lessees shall not do any act,
or suffer or permit any act to be done, whereby any insurance required by this
Section 4.4 would likely be suspended or impaired.
(h) THE AGENCY DOES NOT IN ANY WAY REPRESENT THAT THE INSURANCE SPECIFIED
HEREIN, WHETHER IN SCOPE OR COVERAGE OR LIMITS OF COVERAGE, IS ADEQUATE OR
SUFFICIENT TO PROTECT THE BUSINESS OR INTEREST OF ANY OF THE LESSEES OR ANY
AFFILIATE THEREOF.
Section 4.5. Advances by ▇▇▇▇▇▇.▇▇ the event any of the Lessees fails to
make any payment or fails to perform or observe any obligation required of it
under this Agreement, the Agency, after first delivering ten (10) days' prior
written notice to the Lessees of any such failure on its part (except in the
event of an emergency condition which, in the reasonable judgment of the Agency,
necessitates immediate action) may (but shall not be obligated to), and without
waiver of any of the rights of the Agency under this Agreement or any other
Project Document or Security Document, make such payment or otherwise cure any
failure by the Lessees to perform and observe their other obligations hereunder.
All amounts so advanced therefor by the Agency shall become an additional
obligation of the Lessees to the Agency, which amounts, together with interest
thereon at the rate of eighteen percent (18%) per annum from the date advanced,
shall be paid by the Lessees promptly upon demand therefor by the Agency. Any
remedy herein vested in the Agency for the collection of the rental payments or
other amounts due hereunder shall also be available to the Agency for the
collection of all such amounts so advanced.
Section 4.6. Compliance with Law. The Lessees agree that they will,
throughout the term of this Agreement and at their sole cost and expense,
promptly observe and comply with all Federal, State and local statutes, codes,
laws, acts, ordinances, orders, judgments, decrees, rules, regulations and
authorizations, whether foreseen or unforeseen, ordinary or extraordinary, which
shall now or at any time hereafter be binding upon or applicable to any of the
Lessees, any owner, occupant, user or operator of the Project Property or any
portion thereof (including without limitation those relating to zoning, land
use, building codes, environmental protection, air, water and land pollution,
asbestos removal, toxic wastes, hazardous wastes, solid wastes, wetlands,
health, safety, equal opportunity, minimum wages, and employment practices) (the
"Legal Requirements"), and will observe and comply with all conditions,
requirements, and schedules necessary to preserve and extend all rights,
licenses, permits (including, without limitation, zoning variances, special
exception and non-conforming uses), privileges, franchises and concessions. The
Lessees and the Agency will not, without the prior written consent of each other
(which consents shall not be unreasonably withheld or delayed), initiate, join
in or consent to any private restrictive covenant, zoning ordinance, or other
public or private restrictions, limiting or defining the uses which may be made
of the Project Property or any part thereof. The Lessees shall indemnify and
hold harmless the Indemnified Parties (as defined in Section 6.2 hereof) from
and against all loss, cost, liability and expense (a) in any manner arising out
of or related to any violation of or failure by any of the Lessees (or any other
Person owning, occupying, operating or using the Project Property or any part
thereof) to comply with any Legal Requirement, or (b) imposed upon any of the
Lessees or any of the Indemnified Parties by any Legal Requirement; in case any
action or proceedings is brought against any of the Indemnified Parties in
respect to any Legal Requirement, the Lessees shall upon notice from any of the
Indemnified Parties defend such action or proceeding by counsel satisfactory to
the Indemnified Party.
The Lessees may contest in good faith the validity, existence or
applicability of any of the foregoing if (i) such contest shall not result in
the Project Property or any part thereof or interest therein being in any
reasonably imminent danger of being sold, forfeited or lost, and (ii) such
contest shall not result in any of the Lessees, the Agency or the Trustee being
in any reasonable danger of any civil or criminal liability for failure to
comply therewith.
Section 4.7. Enforcement of Rights Under Prime Lease Against Prime
Landlord. Equitable covenants and agrees that to the extent that the Prime
Landlord is obligated to Equitable under the Prime Lease to comply (or cause
their subtenants of the Facility Realty to comply) with all Federal, State and
local statutes, codes, laws, acts, ordinances, orders, judgments, decrees,
rules, regulations and authorizations (including, without limitation, those
relating to zoning, land use, environmental protection, air, water and land
pollution, asbestos removal, toxic wastes, hazardous wastes, solid wastes,
health, safety, equal opportunity, minimum wages and employment practices),
whether foreseen or unforeseen, ordinary or extraordinary, that shall now or at
any time hereafter govern the ownership, improvement, maintenance and/or
operation of the Project Building (the foregoing covenants of the Prime Landlord
being the "Prime Landlord Covenants"), Equitable shall never amend, waive or
modify, or permit the amendment, waiver or modification of, any of the Prime
Landlord Covenants in a manner which would materially adversely affect the
Agency's interests, and, in the event that Equitable shall have knowledge that
the Prime Landlord shall be in material default of any Prime Landlord Covenant
such as may result in any reasonably imminent danger of causing harm to life or
property or might otherwise subject the Agency to risk of public condemnation,
then, upon the direction of the Agency, Equitable shall promptly exercise good
faith diligent efforts to enforce the Prime Landlord Covenants against the Prime
Landlord.
ARTICLE V
Damage, Destruction and CondemnationDamage, Destruction and Condemnation
Section 5.1. Damage, Destruction and Condemnation.
(a) In the event that at any time during the term of this Agreement the
whole or any part of the Project Property shall be damaged or destroyed, or
taken or condemned by a competent authority for any public use or purpose, or by
agreement (at the request of or with the consent of the Prime Landlord) between
the Agency and those authorized to exercise such right, or if the temporary use
of the Project Property shall be so taken by condemnation or agreement (a "Loss
Event"):
(i) the Agency shall have no obligation to replace, repair or restore the
Project Property,
(ii) there shall be no abatement, postponement or reduction in the rent or
other amounts payable by the Lessees under this Agreement, the Project Agreement
or any other Project Document or Security Document, and
(iii) the Lessees will promptly give notice of such Loss Event to the
Agency and the Trustee, generally describing the nature and extent thereof.
(b) Upon the occurrence of a Loss Event, the Net Proceeds derived therefrom
with respect to the Project Property shall be paid to the Lessees, and the
Lessees (except to the extent provided in Section 5.1(e) hereof), shall at their
own cost and expense (except to the extent paid from the Net Proceeds)
(i) as to each item of damaged or destroyed Facility Equipment or Leased
Personalty, either (y) promptly and diligently replace such item to
substantially its condition immediately prior to the Loss Event, or to a
condition of at least equivalent utility, regardless of whether or not the Net
Proceeds derived from the Loss Event shall be sufficient to pay the cost
thereof, and the Lessees shall not by reason of payment of any such excess costs
be entitled to any reimbursement from the Agency, the Trustee, any Holder of any
of the Bonds or any other Person, nor shall the rent or other amounts payable by
any of the Lessees under this Agreement, the Project Agreement or any other
Project Document or Security Document be abated, postponed or reduced, or (z)
discard or otherwise dispose of such item for use other than by the Lessees or
any Affiliate thereof, and not replace, repair or restore the same; and
(ii) as to the Facility Realty, either (y) cause that portion of the
Facility Realty as shall be the subject of the Loss Event (or so much thereof
not to be rebuilt, replaced, repaired or restored as provided in clause (z)
below) to be released from the Company Lease and this Agreement, or (z) promptly
and diligently replace, repair or restore the Project Property to substantially
its condition immediately prior to the Loss Event, or to a condition of at least
equivalent utility, value, operating efficiency and function, regardless of
whether or not the Net Proceeds derived from the Loss Event shall be sufficient
to pay the cost thereof, and the Lessees shall not by reason of payment of any
such excess costs be entitled to any reimbursement from the Agency, the Trustee,
any Holder of any of the Bonds or any other Person, nor shall the rent or other
amounts payable by any of the Lessees under this Agreement, the Project
Agreement or any other Project Document or Security Document be abated,
postponed or reduced.
(c) Any rebuilding, replacement, repair or restoration of Project Property
shall
(i) automatically be deemed a part of the Project Property and owned by, or
leased or licensed to, the Agency and be subject to the Prime Lease, the Company
Lease and this Agreement,
(ii) not change the nature of the Project Property as a qualified "project"
as defined in and as contemplated by the Act or change the general purposes of
the Project Property from those specified in the recitals to this Agreement, and
(iii) be effected with due diligence in a good and workmanlike manner, in
compliance in all material respects with all applicable Legal Requirements (as
defined in Section 4.6 hereof) and be promptly and fully paid for by the Lessees
in accordance with the terms of the applicable contract(s) therefor.
(d) The Agency, the Trustee and the Lessees shall cooperate and consult
with each other in all matters pertaining to the settlement, compromise,
arbitration or adjustment of any claim or demand on account of any Loss Event,
but the settlement, compromise, arbitration or adjustment of any such claim or
demand shall be decided by the Lessees. The Agency shall, at the sole cost and
expense of the Lessees, cooperate with the Lessees in the settlement,
compromise, arbitration or adjustment of any such claim or demand and shall
execute such documents as shall be reasonably necessary to accomplish the same.
(e) If all or substantially all of any portion of the Facility Realty shall
be damaged or destroyed or taken or condemned, or if the casualty, taking or
condemnation renders such portion of the Facility Realty unsuitable for use by
the Lessees as contemplated herein, the Lessees shall within one hundred twenty
(120) days after the Loss Event deliver written notice to the Agency and the
Trustee as to whether the Lessees intend to rebuild, replace, repair or restore
such portion of the Facility Realty and continue its occupancy and use or to
abandon such portion of the Facility Realty, in which latter event such portion
of the Facility Realty shall be released from the Company Lease and this
Agreement as provided in Section 6.17 hereof.
(f) The Lessees hereby waive the provisions of Section 227 of the New York
Real Property Law or any law of like import now or hereafter in effect.
ARTICLE VI
Particular Covenants
Section 6.1. Dissolution or Merger of Lessees; Restrictions on Lessees.
Each of the Lessees covenants and agrees that at all times during the term of
this Agreement, it will (i) maintain its corporate existence, (ii) continue to
be subject to service of process in the State and either be organized under the
laws of the State of New York, or under the laws of any other state of the
United States and duly qualified to do business as a foreign corporation in the
State, (iii) not liquidate, wind-up or dissolve or otherwise dispose of all or
substantially all of its property, business or assets, and (iv) not consolidate
with or merge into another corporation or permit one or more corporations to
consolidate with or merge into it. Any Lessee may, however, without violating
the foregoing, but upon prior written notice to the Agency and the Trustee,
consolidate with or merge into another corporation, or permit one or more
corporations to consolidate with or merge into it, or sell or otherwise transfer
all or substantially all of its property, business or assets to another such
corporation (and thereafter liquidate, wind-up or dissolve or not, as such
Lessee may elect) if (I) such Lessee is the surviving, resulting or transferee
corporation, as the case may be (which shall include a merger of Equitable and
EVLICO), or (II) in the event that such Lessee is not the surviving, resulting
or transferee corporation, as the case may be, such corporation (A) is a solvent
corporation subject to service of process in the State and either organized
under the laws of the State of New York, or organized under the laws of any
other state of the United States and duly qualified to do business in the State,
(B) is not, nor is it an Affiliate of, a Prohibited Person, (C) is primarily
engaged at Approved Equitable City Locations in the Equitable Business, (D)
assumes in writing all of the obligations of such Lessee contained in this
Agreement and the other Project Documents and Security Documents to which such
Lessee shall be a party and, in the Opinion of Counsel delivered to the Agency
and the Trustee, (x) such corporation shall be bound by all of the terms
applicable to such Lessee of this Agreement and the other Project Documents and
Security Documents to which such Lessee shall be a party, and (y) such action
does not legally impair the security for the Holders of the Bonds afforded by
the Security Documents, and (E) in the opinion of an Independent Accountant
delivered to the Agency and the Trustee, has a net worth (as determined by the
Independent Accountant in accordance with generally accepted accounting
principles) after the merger, consolidation, sale or transfer at least equal to
the net worth of such Lessee immediately prior to such merger, consolidation,
sale or transfer.
Each of the Lessees further covenants and agrees as to itself that at all
times during the term of this Agreement, it is and will continue to be duly
qualified to do business in the State, and any corporation or other entity
succeeding to the rights of a Lessee under this Agreement shall be and continue
to be duly qualified to do business in the State.
Section 6.2. Indemnity.(a) The Lessees shall at all times protect and hold
the Agency, the Trustee, the Bond Registrar and the Paying Agents (collectively,
the "Indemnified Parties") harmless of, from and against any and all claims
(whether in tort, contract or otherwise), demands, costs, expenses (including,
without limitation, court costs and reasonable attorneys' fees) and liabilities
for losses, damage, injury and liability of every kind and nature and however
caused, and taxes (of any kind and by whomsoever imposed), other than, (y) with
respect to the Agency, if the claim, demand, cost, expense or liability shall
have arisen by reason of a separate "project" unrelated to the Project
undertaken by the Agency under the Act, and (z) with respect to any Indemnified
Party (including the Agency), losses arising from the gross negligence or
willful misconduct of such Indemnified Party (including the Agency), arising
during the term of this Agreement upon, about or in connection with the Project
Building or the Project Property or resulting from, arising out of, or in any
way connected with (i) the financing of the costs of the Project Property and
the marketing, remarketing, issuance and sale of the Agency's Bonds from time to
time for such purpose, (ii) the planning, design, acquisition, site preparation,
construction, renovation, equipping, installation, maintenance, repair or
replacement of the Project Building or the Project Property or any part of
either thereof or the effecting of any work done with respect to or in or about
the Project Building or the Project Property, (iii) any defects (whether latent
or patent) in the Project Building or the Project Property or any part of either
thereof, (iv) the maintenance, repair, replacement, restoration, rebuilding,
demolition, upkeep, use, occupancy, ownership, leasing, subletting, licensing,
sublicensing or operation of the Project Building or the Project Property or any
portion of either thereof, and (v) this Agreement, the Indenture, the Project
Agreement, the Sales Tax Letter, the Pre-Bond Issuance Sales Tax Letter, the
Prime Lease, the Company Lease, the Project Agreement, the Indenture, the Bond
Supplemental Indenture or any other Project Document or Security Document, or
any other document or instrument delivered in connection herewith or therewith
or the enforcement of any of the terms or provisions hereof or thereof or the
transactions contemplated hereby or thereby. Such indemnification set forth
above shall be binding upon the Lessees for any and all claims, demands,
expenses, liabilities and taxes set forth herein and shall survive the
termination of this Agreement. No Indemnified Party shall be liable for any
damage or injury to the person or property of any of the Lessees or their
respective directors, officers, employees, agents or servants or persons under
the control or supervision of any such Person or any other Person who may be
involved with the Project Building or the Project Property due to any act or
negligence of any Person other than, with respect to any such Indemnified Party,
the gross negligence or willful misconduct of such Indemnified Party.
(b) The Lessees release each Indemnified Party from, and agree that no
Indemnified Party shall be liable for, and agrees to indemnify and hold each
Indemnified Party harmless against, any expense, loss, damage, injury or
liability incurred because of any lawsuit commenced as a result of action taken
by such Indemnified Party with respect to any of the matters set forth in
subdivisions (i) through (v) of Section 6.2(a) hereof or at the direction of any
of the Lessees; provided, however, that the indemnification provisions of this
Section 6.2 shall not apply to an Indemnified Party to the extent that such
expense, loss, damage, injury or liability shall have arisen from the gross
negligence or willful misconduct of such Indemnified Party. An Indemnified Party
shall promptly notify the Lessees in writing of any claim or action brought
against such Indemnified Party in which indemnity may be sought against the
Lessees pursuant to this Section 6.2; such notice shall be given in sufficient
time to allow the Lessees to defend or participate in such claim or action, but
the failure to give such notice in sufficient time shall not constitute a
defense hereunder nor in any way impair the obligations of the Lessees under
this Section 6.2.
(c) In addition to and without limitation of all other representations,
warranties and covenants made by the Lessees under this Agreement, the Lessees
further represent and warrant that none of the Lessees has used Hazardous
Materials (as defined hereinafter) on, from, or affecting the Project Property
or any portion thereof in any manner which violates Federal, state or local
laws, ordinances, rules, regulations, or policies governing the use, storage,
treatment, transportation, manufacture, refinement, handling, production or
disposal of Hazardous Materials, and that, except as set forth in a certain
Phase I Environmental Assessment dated as of June 22, 1995 prepared by ▇▇▇▇▇▇▇
Environmental Company with respect to the Facility Realty, true and complete
copies of which the Lessees have delivered to the Agency (the "Phase I
Environmental Report"), to the best of the Lessees' actual knowledge, no prior
owner, user, or occupant of the Project Property or any portion thereof has used
Hazardous Materials on, from, or affecting the Project Property or any portion
thereof in any manner which violates Federal, state or local laws, ordinances,
rules, regulations or policies governing the use, storage, treatment,
transportation, manufacture, refinement, handling, production or disposal of
Hazardous Materials. The Lessees shall keep or cause the Project Property to be
kept free of Hazardous Materials (other than materials customarily used in the
conduct of the Equitable Business), except as provided in applicable Federal,
state and local laws, ordinances, rules, regulations and policies. Without
limiting the foregoing, the Lessees shall not cause or permit the Project
Property or any part thereof to be used to generate, manufacture, refine,
transport, treat, store, handle, dispose, transfer, produce or process Hazardous
Materials, except in compliance with all applicable Federal, state and local
laws or regulations, nor shall the Lessees cause or permit, as a result of any
intentional or unintentional act or omission on the part of any of the Lessees
or any operator, user, or occupant of the Project Property, a release of
Hazardous Materials onto the Project Property or any portion thereof or onto any
other property. The Lessees shall comply with and use reasonable efforts to
ensure compliance by all other owners, users, tenants or subtenants of the
Project Property with all applicable Federal, state and local laws, ordinances,
rules and regulations relating to Hazardous Materials with respect to the
acquisition, leasing, subleasing, licensing, construction, renovation,
improving, equipping, furnishing, installation, operation, maintenance, repair
and replacement of the Project Property, whenever and by whomever triggered, and
shall obtain and comply with, and use reasonable efforts to ensure that all
owners, users, tenants or occupants of the Project Property obtain and comply
with, any and all approvals, registrations or permits required thereunder. The
Lessees shall (i) take all actions necessary to clean up and remediate all
Hazardous Materials, on, from, or affecting the Project Property, to the extent
that the Lessees have control thereof, (y) to the extent required in accordance
with all applicable Federal, state and local laws, ordinances, rules,
regulations, and policies, and (z) in accordance with the orders and directives
of all Federal, state and local governmental authorities, and (ii) defend,
indemnify, and hold harmless the Indemnified Parties from and against any
claims, demands, penalties, fines, liabilities, settlements, damages, costs, or
expenses of whatever kind or nature, known or unknown, contingent or otherwise,
arising out of, or in any way related to, (1) the presence, disposal, release,
or threatened release of any Hazardous Materials which are on, from, or
affecting the Project Property or any portion thereof; (2) any personal injury
(including wrongful death) or property damage (real or personal) arising out of
or related to such Hazardous Materials; (3) any lawsuit brought or threatened,
settlement reached, or government order relating to such Hazardous Materials,
and/or (4) any violation of laws, orders, regulations, requirements or demands
of government authorities, which are based upon or in any way related to such
Hazardous Materials including, without limitation, reasonable attorney and
consultant fees, investigation and laboratory fees, court costs, and litigation
expenses. For purposes of this paragraph, "Hazardous Materials" includes,
without limitation, any flammable explosives, radioactive materials, hazardous
materials, hazardous wastes, hazardous or toxic substances, or related materials
defined or so treated in the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, as amended (42 U.S.C. Sections 9601, et seq.), the
Hazardous Materials Transportation Act, as amended (49 U.S.C. Sections 1801 et
seq.), the Resource Conservation and Recovery Act of 1976, as amended (42 U.S.C.
Sections 6901, et seq.), and in the regulations adopted and promulgated pursuant
thereto, or any other Federal, state or local environmental law, ordinance,
rule, or regulation. The provisions of this paragraph shall be in addition to
any and all other obligations and liabilities the Lessees may have to the
Indemnified Parties at common law or otherwise, and the indemnification
provisions hereof shall survive the termination of this Agreement.
The parties hereto agree that the reference in this Section 6.2(c) to the
Phase I Environmental Report is not intended, and should not be deemed to
intend, to modify, qualify, reduce or diminish the obligations of the Lessees to
carry out and perform all of the covenants stated in Section 4.6 hereof and
throughout this Section 6.2, including but not limited to, those covenants
wherein the Lessees are obligated to indemnify the Indemnified Parties and
comply with all laws, ordinances, rules and regulations pertaining to Hazardous
Materials.
(d) The indemnifications and protections set forth in this Section 6.2
shall be extended, with respect to each Indemnified Party, to its members,
directors, officers, employees, agents and servants and persons under such
Indemnified Party's control or supervision.
(e) To effectuate the purposes of this Section 6.2, the Lessees will
provide for and insure, in the public liability policies required in Section 4.4
hereof, not only their own liability in respect of the matters therein mentioned
but also the liability pursuant to this Section 6.2 (other than under Section
6.2(c) hereof to the extent not available to either of the Lessees or not
otherwise maintained by either of the Lessees). Anything to the contrary in this
Agreement notwithstanding, the indemnification covenants of the Lessees
contained in this Section 6.2 shall remain in full force and effect after the
termination of this Agreement until the later of (i) the expiration of the
period stated in the applicable statute of limitations during which a claim or
cause of action may be brought and (ii) payment in full or the satisfaction of
such claim or cause of action and of all expenses and charges incurred by any
Indemnified Party relating to the enforcement of the provisions herein
specified.
(f) For the purposes of this Section 6.2, neither of the Lessees nor any of
their respective subsidiaries or affiliates, nor any other Person (whether
related or unrelated to any Lessee) who has received "financial assistance" in
connection with any other "project" (as such terms are defined in the Act) under
the Act, shall be deemed an employee, agent or servant of the Agency or a person
under the Agency's control or supervision.
Section 6.3. Compensation and Expenses of Trustee, Bond Registrar, Paying
Agents and Agency. (a) The Agency Lessees shall, to the extent not paid out of
the proceeds of the Bonds as financing expenses, pay the following annual fees,
charges and expenses and other amounts (i) the initial and annual fees of the
Trustee for the ordinary services of the Trustee rendered and its ordinary
expenses incurred under the Indenture, including fees and expenses as Bond
Registrar and in connection with preparation of new Bonds upon exchanges or
transfers or making any investments in accordance with the Indenture, (ii) the
reasonable fees and charges of the Trustee, the Bond Registrar, the Bond
Registrar and any Paying Agents on the Bonds for acting as paying agents as
provided in the Indenture, including the reasonable fees of its counsel, (iii)
the reasonable fees and charges of the Trustee for extraordinary services
rendered by it and extraordinary expenses incurred by it under the Indenture,
including reasonable counsel fees, and (iv) the fees, costs and expenses
(including legal, accounting and other administrative expenses) of the Agency.
The Lessees shall further pay the reasonable costs and expenses of the Agency
together with any reasonable fees and disbursements incurred by the Agency's
Bond Counsel and General Counsel in performing services for the Agency in
connection with this Agreement, the Project Agreement, the Sales Tax Letter, the
Indenture or any other Project Document or Security Document.
(b) The Lessees further agree to pay to the Agency a financing fee of
$805,000 payable in two installments consisting of $600,000 payable on the Lease
Commencement Date (less $15,000 paid by the Lessees as an application fee to the
Agency prior to the Lease Commencement Date) and $205,000 payable by the Lessees
on the first anniversary of the Lease Commencement Date. In addition, the
Lessees agrees to pay an annual administrative fee of $15,000 to the Agency,
payable initially on the Lease Commencement Date and on every anniversary
thereof until the termination of this Agreement.
Section 6.4. Retention of Interest in Project Property. The Agency shall
not sell, assign, encumber (other than Permitted Encumbrances), convey or
otherwise dispose of its interest in the Project Property or any part thereof or
interest therein during the term of this Agreement, except as set forth in
Sections 2.3, 4.2, 5.1, 6.17, 6.18, 7.2, 8.2 and 9.3 hereof, without the prior
written consent of the Lessees and the Trustee and any purported disposition
without such consent shall be void.
Section 6.5. Financial Statements; Annual Certificates. (a) The Lessees
shall furnish or cause to be furnished to the Agency and to the Trustee, as soon
as available and in any event within one hundred twenty (120) days after the
close of each fiscal year of Equitable, a copy of the most recently filed "Equal
Employment Opportunity, Employer Information Report EEO-1" and "New York State
Department of Labor Form IA-5" or other equivalent or successor report as may be
required of the Lessees to be filed with appropriate government authorities.
(b) The Lessees shall deliver to the Agency and the Trustee with each
delivery of annual financial statements required by Section 6.1 of the Project
Agreement, a certificate of an Authorized Representative of the Lessees (i) as
to whether or not, as of the close of such preceding fiscal year of the Lessees,
and at all times during such fiscal year, and to the best knowledge of such
Authorized Representative, the Lessees were in compliance in all material
respects with all the provisions which relate to the Lessees in this Agreement
and the Project Documents and Security Documents to which any of the Lessees is
a party, and if such Authorized Representative shall have obtained knowledge of
any default in such compliance or notice of such default, he shall disclose in
such certificate such default or defaults or notice thereof and the nature
thereof, whether or not the same shall constitute an Event of default hereunder,
and any action proposed to be taken by the Lessees with respect thereto, (ii) as
to whether or not an "event of default" exists under the Prime Lease or written
notice of an uncured default has been received by Equitable under the Prime
Lease, (iii) that the insurance the Lessees maintain complies with the
provisions of Section 4.4 of this Agreement, that such insurance has been in
full force and effect at all times during the preceding fiscal year of the
Lessees, and that duplicate copies of all policies or certificates thereof have
been filed with the Agency and are in full force and effect, (iv) that the
Agency has been vested with valid title to all items of Facility Equipment and
has a valid leasehold or licensee interest in all other Project Property and
that all property constituting the Project Property is subject to the leasehold
interest of this Agreement, (v) that none of the Lessees has availed itself of
the benefits of the Pre-Bond Issuance Sales Tax Letter or the Sales Tax Letter
except in conformance with the requirements of Section 3.1 of the Project
Agreement, the Pre-Bond Issuance Sales Tax Letter and the Sales Tax Letter, (vi)
as to the percentage of rentable square feet of each floor comprising the
Facility Realty, and of the Facility Realty in the aggregate, as shall be used
or occupied by Non-Qualified Users, and (vii) that no item of Existing Project
Property has been removed from Approved Equitable City Locations except in
accordance with Sections 4.2 or 5.1 hereof. In addition, upon twenty (20) days'
prior request by the Agency, the Lessees will execute, acknowledge and deliver
to the Agency and the Trustee a certificate of an Authorized Representative of
the Lessees as to whether any default shall exist on the part of either of the
Lessees in those provisions of this Agreement as shall be the subject of the
request (which request must be specific in nature), and if so, the details
thereof and the action proposed to be taken by the Lessees to cure the same.
(c) The Lessees shall promptly notify the Agency and the Trustee of the
occurrence and continuance of any Event of Default or any event which with
notice and/or lapse of time would constitute an "event of default" under the
Prime Lease, or an Event of Default under this Agreement or any other Project
Document or Security Document of which any Lessee has knowledge. Any notice
required to be given pursuant to this subsection shall be signed by an
Authorized Representative of the Lessees and set forth a description of the
default and the steps, if any, being taken to cure said default. If no steps
have been taken, the Lessees shall state this fact in the notice.
Section 6.6 Discharge of Liens. (a) If any lien, encumbrance or charge is
filed or asserted, or any judgment, decree, order, levy or process of any court
or governmental body is entered and attached against any of the Project
Property, made or issued or any claim (such liens, encumbrances, charges,
judgments, decrees, orders, levies, processes and claims being herein
collectively called "Liens"), whether or not valid, is made against the Project
Property or any part thereof or the interest therein of the Agency, any of the
Lessees or the Trustee or against any of the rentals or other amounts payable
under this Agreement or the Project Agreement or the interest of any of the
Lessees under this Agreement or under any other Security Document or Project
Document other than Liens for Impositions (as defined in Section 4.3 hereof) not
yet payable, Permitted Encumbrances, or Liens being contested as permitted by
Section 6.6(b) hereof, the Lessees forthwith upon receipt of notice of the
filing, assertion, entry or issuance of such Lien (regardless of the source of
such notice) shall give written notice thereof to the Agency and the Trustee and
take all action (including the payment of money and/or the securing of a bond)
at their own cost and expense as may be necessary or appropriate to obtain the
discharge in full thereof and to remove or nullify the basis therefor. Nothing
contained in this Agreement shall be construed as constituting the express or
implied consent to or permission of the Agency for the performance of any labor
or services or the furnishing of any materials that would give rise to any Lien
against the Agency's interest in the Project Property or the rentals or other
amounts payable under this Agreement or any other Project Document or Security
Document.
(b) The Lessees may at their sole cost and expense contest (on written
notice to the Agency and the Trustee), by appropriate action conducted in good
faith and with due diligence, the amount or validity or application, in whole or
in part, of any Lien, if (1) such proceeding shall suspend the execution or
enforcement of such Lien against the Project Property or any portion thereof or
interest therein or against the Agency, any of the Lessees or the Trustee or
against any of the rentals or other amounts payable under this Agreement or any
other Project Document or Security Document, (2) neither the Project Property
nor any portion thereof or interest therein would be in any reasonably imminent
danger of being sold, forfeited or lost, and (3) neither any of the Lessees, the
Agency nor the Trustee would be in any reasonable danger of any criminal or
civil liability for failure to comply therewith.
Section 6.7. Agency's Authority; Covenant of Quiet Enjoyment. The Agency
covenants and agrees that it has full right and lawful authority to enter into
this Agreement for the full term hereof, and that, subject to the terms and
provisions of the Indenture and other Permitted Encumbrances (and any other
title defects not disclosed in the title insurance policies delivered pursuant
to Section 2.4 hereof), so long as an Event of Default shall not exist
hereunder, the Lessees shall have, hold and enjoy, during the term hereof,
peaceful, quiet and undisputed possession of the Project Property without
molestation or disturbance by or from the Agency or any Person claiming through
the Agency, subject to Permitted Encumbrances.
Section 6.8. No Warranty of Condition or Suitability. THE AGENCY HAS MADE
AND MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER, EITHER EXPRESS OR IMPLIED,
WITH RESPECT TO THE MERCHANTABILITY, CONDITION, FITNESS, DESIGN, OPERATION OR
WORKMANSHIP OF ANY PART OF THE PROJECT PROPERTY, ITS FITNESS FOR ANY PARTICULAR
PURPOSE, THE QUALITY OR CAPACITY OF THE MATERIALS IN THE PROJECT PROPERTY, OR
THE SUITABILITY OF THE PROJECT PROPERTY FOR THE PURPOSES OR NEEDS OF ANY OF THE
LESSEES OR ANY OTHER PERSON OR THE EXTENT TO WHICH PROCEEDS DERIVED FROM THE
SALE OF THE BONDS WILL BE SUFFICIENT TO PAY PROJECT COSTS. THE LESSEES
ACKNOWLEDGE THAT THE AGENCY IS NOT THE MANUFACTURER OF THE FACILITY EQUIPMENT OR
THE OTHER PROJECT PROPERTY NOR THE MANUFACTURER'S AGENT NOR A DEALER THEREIN.
NEITHER THE LESSEES (NOR ANY PERSON OR AFFILIATE UNDER THE CONTROL OF EITHER OF
THE LESSEES) SHALL ASSERT A CLAIM AGAINST THE AGENCY ON THE BASIS THAT THE
PROJECT PROPERTY IS NOT SUITABLE OR FIT FOR ITS PURPOSES. THE AGENCY SHALL NOT
BE LIABLE IN ANY MANNER WHATSOEVER TO ANY OF THE LESSEES OR ANY AFFILIATE
THEREOF OR OTHER PERSON OR AFFILIATE UNDER THE CONTROL OF EITHER OF THE LESSEES
FOR ANY LOSS, DAMAGE OR EXPENSE OF ANY KIND OR NATURE CAUSED, DIRECTLY OR
INDIRECTLY, BY THE PROJECT PROPERTY OR THE USE OR MAINTENANCE OF ANY THEREOF OR
THE FAILURE OF OPERATION OF ANY THEREOF, OR THE REPAIR, SERVICE OR ADJUSTMENT OF
ANY THEREOF, OR BY ANY DELAY OR FAILURE TO PROVIDE ANY SUCH MAINTENANCE,
REPAIRS, SERVICE OR ADJUSTMENT, OR BY ANY INTERRUPTION OF SERVICE OR LOSS OF USE
OF ANY THEREOF OR FOR ANY LOSS OF BUSINESS HOWSOEVER CAUSED.
Section 6.9. Amounts Remaining in Funds. Any amounts remaining in any of
the Funds and Accounts held by the Trustee under the Indenture upon the
expiration or termination of the term of this Agreement, after payment in full
of the Bonds (or provisions for such payment in full in accordance with Section
10.01 of the Indenture), the fees, charges and expenses of the Trustee, the Bond
Registrar, the Paying Agents and the Agency in accordance with the Indenture and
after all rents and all other amounts due and payable hereunder and under each
other Security Document and Project Document shall have been paid in full (or
provision for such payment in full is made in accordance with Section 10.01 of
the Indenture) shall belong to and be paid promptly to the Lessees by the
Trustee as overpayment of rents.
Section 6.10.Obligations under and Covenants with Respect to the Prime
Lease. (a) Equitable covenants and agrees that it shall not enter into, consent,
permit or approve an amendment, waiver, supplement or modification to the Prime
Lease which would materially and adversely affect the interests of the Agency
(or otherwise amend, supplement, modify or waive any of the Prime Landlord
Covenants, as defined in Section 4.7 hereof). Equitable shall deliver a
certified copy of any such amendment, waiver, supplement or modification to the
Agency and the Trustee promptly following the execution thereof.
(b) Equitable agrees to promptly transmit to the Agency and the Trustee
copies of any termination or default notice it shall receive from, or deliver
to, the Prime Landlord under the Prime Lease.
Section 6.11.[Reserved].
Section 6.12.Redemption Under Certain Circumstances. (a) Upon the
determination by resolution of the members of the Agency that any of the Lessees
is operating the Project Property or any portion thereof in material violation
of applicable material law or not as a qualified "project" as defined in and in
accordance with the Act and the failure of the Lessees within sixty (60) days
(or such longer period as may be established pursuant to the proviso to this
sentence) of the receipt by the Lessees of written notice of such noncompliance
from the Agency to cure such noncompliance together with a copy of such
resolution (a copy of which notice shall be sent to the Trustee), the Lessees
covenant and agree that they shall, on the immediately succeeding Interest
Payment Date following the termination of such sixty (60) day (or longer)
period, pay to the Trustee advance rentals in immediately available funds in an
amount sufficient to redeem the Bonds Outstanding in whole at the Redemption
Price of 100% of the aggregate principal amount of the Outstanding Bonds
together with interest accrued thereon to such interest payment date, provided,
however, that if such noncompliance cannot be cured within such period of sixty
(60) days with diligence (and is capable of being cured) and the Lessees
promptly commence the curing of such non-compliance and thereafter prosecute the
curing thereof with diligence and to the Agency's reasonable satisfaction, such
period of time within which the Lessees may cure such failure shall be extended
for such additional period of time as may be necessary to cure the same with
diligence and the Agency shall notify the Trustee of any such extension. The
Agency shall give prior written notice of the meeting at which the members of
the Agency are to consider such resolution to the Lessees and the Trustee, which
notice shall be no less than sixty (60) days prior to such meeting.
(b) Upon (i) the occurrence of an Event of Default under this Agreement
(with respect to any of the Agency's Reserved Rights hereunder) or the Project
Agreement, which has not been cured within the applicable grace period set forth
therein, (ii) no Bonds being Outstanding under the Indenture, or Bonds not being
issued and Outstanding under the Indenture in the minimum principal amounts
required under Section 2.3(c) hereof, or (iii) the Agency ceasing to have any
title, leasehold or license interest in any of the property constituting the
Project Property, the Agency shall have the right, on thirty (30) days' prior
written notice to the Lessees and the Trustee, to require that the Lessees pay
to the Trustee on the thirtieth (30th) day following the date of such notice,
advance rentals in immediately available funds in an amount sufficient to redeem
the Bonds Outstanding in whole at the Redemption Price of 100% of the principal
amount of the Outstanding Bonds, together with interest accrued thereon to the
date of redemption.
Section 6.13. Further Assurances. The Lessees covenant and agree that each
will do, execute, acknowledge and deliver or cause to be done, executed,
acknowledged and delivered such further reasonable acts, instruments,
conveyances, transfers and assurances, at the sole cost and expense of the
Lessees (it being agreed, however, that the Lessees shall have no obligation to
pay any expenses attributable to any in-house professionals of the Agency), as
the Agency or the Trustee reasonably deem necessary or advisable for the
implementation, effectuation, correction, confirmation or perfection of this
Agreement and any rights of the Agency or the Trustee hereunder or under the
Indenture, under any other Security Document or under any other Project
Document.
Section 6.14. Project Property Registry. The Agency shall maintain the
Project Property Registry, which shall be available for inspection in the City
during Agency regular business hours upon reasonable request therefor by the
Lessees. On each March 5 and September 5 during the term of this Agreement
commencing September 15, 1996, the Lessees shall deliver to the Agency, together
with the certificates required under Section 3.1 of the Project Agreement, a
certificate of an Authorized Representative of the Lessees certifying the
deletions and other updates that should be made to the Project Property Registry
so that such Registry shall constitute (taking into consideration such additions
and deletions and all previously certified additions and deletions) an accurate
and complete description of the property comprising the Facility Equipment, the
Tenant Improvements, the Leased Personalty and the Maintenance Contracts.
Section 6.15. Recording and Filing. A memorandum of this Agreement as
originally executed shall be recorded by the Lessees subsequent to the
recordation of the Indenture, in the appropriate office of the Register of The
City of New York, or in such other office as may at the time be provided by law
as the proper place for the recordation thereof. The security interest of the
Agency granted to the Trustee under the Indenture in this Agreement and the
rentals payable hereunder shall be perfected by the filing of financing
statements by the Agency which fully comply with the New York State Uniform
Commercial Code - Secured Transactions in the office of the Secretary of State
of the State, in the City of Albany, New York and in the appropriate office of
the Register of the City of New York. The Lessees agree to furnish the Agency
and the Trustee with the Opinion of Counsel addressed to the Agency and the
Trustee referred to in Section 7.08 of the Indenture and shall perform all other
acts (including the payment of all costs) necessary in order to enable the
Agency to comply with Section 7.08 of the Indenture.
Section 6.16. Right to Cure Agency Defaults. The Agency hereby grants the
Lessees full authority for the account of the Agency to perform any covenant or
obligation the non-performance of which is alleged to constitute a default, in
the name and stead of the Agency, with full power of substitution.
Section 6.17. Release of Portions of the Facility Realty. (a) Upon receipt
by the Agency of written notice from an Authorized Representative of the Lessees
(a copy of which shall be delivered by the Lessees to the Trustee), describing
any floor or partial floor of the Facility Realty and the date, which shall be a
Business Day not sooner than thirty (30) days from the receipt by the Agency of
such notice, upon which such floor or partial floor of the Facility Realty is to
be released from the leasehold estates of the Company Lease and of this
Agreement, then, to the extent then permitted under applicable law, the Agency
shall on the date indicated in such notice and at the sole cost and expense of
the Lessees, enter into such amendments to the Company Lease and to this
Agreement, and shall take such further action to effectuate such amendments as
the Lessees may reasonably request, to effect or facilitate such release of the
floor or partial floor.
(b) In the event that more than the greater of (y) fifteen percent (15%) of
the aggregate rentable square feet of the Facility Realty, or (z) one full floor
of the Facility Realty (the greater of clauses (y) and (z) being referred to as
the "Maximum Sublet Space"), shall at any one time be used or occupied by
Persons constituting Non-Qualified Users (whether by sublease or otherwise), the
Lessees shall promptly deliver written notice to such effect to the Agency, and
this Agreement and the Company Lease shall be deemed terminated (unless the
Lessees shall, within thirty (30) days of the delivery of such notice or the
date upon which such notice should have been delivered hereunder, whichever is
earlier, have cured such condition) with respect to all of the Facility Realty
so used or occupied (including the portion of the Facility Realty as shall be
within such one floor or such fifteen percent (15%) parameter) as if the term of
this Agreement and of the Company Lease with respect to such portion of the
Facility Realty had expired with respect thereto, and the Lessees shall, at
their sole cost and expense, take such reasonable action to effectuate such
termination as the Agency may reasonably request, including, without limitation,
the entering into of such amendments to this Agreement and the Company Lease as
the Agency may reasonably require to effect such termination.
(c) Notwithstanding the foregoing, in the event the use or possession of
any portion of the Facility Realty shall at any time be for a purpose or by a
Person which is not a qualified "project" as defined in the Act, the Lessees
shall promptly deliver written notice to such effect to the Agency, and the
Lessees shall, upon receipt of written notice from the Agency to such effect,
proceed with diligent good faith efforts to cause such use or possession to be
for a purpose and by a Person within the definition of qualified "project" as
defined in the Act, or failing that, to cause such portion of the Facility
Realty so used or possessed to no longer be included in the leasehold estates of
the Company Lease and of this Agreement. The Agency shall cooperate with the
Lessees and execute such documents or other such instruments, at the sole cost
and expense of the Lessees, as the Lessees shall reasonably request, to effect
such release.
Section 6.18. Additions to the Facility Realty. The Lessees shall have the
right, from time to time, to cause additional portions of the premises within
the Project Building ("Additional Leased Premises") to be made subject to the
Prime Lease, the Company Lease and this Agreement, on the condition, however,
that:
(a) at least fifteen (15) days prior to the proposed addition, the Lessees
shall have delivered to the Agency a certificate of an Authorized Representative
of the Lessees stating the intention of the Lessees to effect such addition, and
certifying (i) as to the Additional Leased Premises to be added and the proposed
date of such addition which date shall be a Business Day (the "Additional Leased
Premises Closing Date"), (ii) as to the aggregate rentable square feet of each
floor (or partial floor) of such Additional Leased Premises, (iii) as to the
aggregate rentable square feet of Facility Realty in which the Agency would have
a leasehold interest after such addition, (iv) as to a description of any
Non-Qualified User as shall be occupying or using any portion of such Additional
Leased Premises (accompanied by a true and complete copy of the lease or other
use or occupancy agreement with such Non-Qualified User), the use by such
Non-Qualified User of such space, that the aggregate amount of the rentable
square feet of each floor comprising such Additional Leased Premises used or
occupied by a Non-Qualified User is not in excess, together with all other
rentable square feet comprising the Facility Realty which shall be used or
occupied by Non-Qualified Users, of the greater of (y) one full floor, and (z)
fifteen percent (15%) of the total rentable square feet of the Facility Realty,
that the Agency is not a landlord to such Non-Qualified User whether as a matter
of agreement with such Non-Qualified User or by law, and the Agency has and
shall have no landlord obligations or liabilities owing to such Non-Qualified
User, that no such use is for a retail purpose, the rentable square feet
occupied by each such Non-Qualified User, the aggregate amount of rentable
square feet of the Facility Realty after the addition of the Additional Leased
Premises to the Agency as would be occupied by each Non-Qualified User, and the
percentage of aggregate rentable square feet as would comprise the Facility
Realty after such conveyance which would be used or occupied by all
Non-Qualified Users, (v) that other than that portion of the Additional Leased
Premises stated to be used or occupied by a Non-Qualified User(s), the space
comprising the Additional Leased Premises will either remain vacant or be
occupied and used by the Lessees (subject to Permitted Incidental Use) in the
Equitable Business, (vi) that no portion of the Additional Leased Premises are
or shall be used by a Person or for a purpose as shall not constitute a
qualified "project" under the Act, (vii) that the Additional Leased Premises are
subject to the Prime Lease, (viii) that the Maximum Sales Tax Benefit (as
defined in the Project Agreement) has not yet been attained, and (ix) that no
"event of default" exists under the Prime Lease and no Event of Default exists
under this Agreement or the Project Agreement, nor an event which upon notice or
lapse of time or both would constitute such an Event of Default;
(b) on the Additional Leased Premises Closing Date, the Agency shall
receive:
(i) if the Additional Leased Premises Closing Date is after November 30,
1996, a "Phase I Environmental Audit" and an executed Form ACP-5 with respect to
the Additional Leased Premises, reasonably satisfactory to the Agency, by an
environmental engineer who is reasonably acceptable to the Agency;
(ii) an endorsement to the public liability and other insurance referred to
in Section 4.4 hereof including such Additional Leased Premises within the
property covered by such insurance;
(iii) an endorsement to the existing leasehold title insurance policy
described in Section 2.4 hereof (or an additional title insurance policy of form
and tenor reasonably acceptable to the Agency) including the Additional Leased
Premises within such policy; provided, however, that such endorsement or
separate title insurance policy shall not indicate any exceptions to title which
would subject the Agency to liability and for which the Agency does not receive
an indemnity reasonably satisfactory to the Agency; and
(iv) a certificate of an Authorized Representative of the Lessees
certifying, as of the Additional Leased Premises Closing Date, as true and
correct the matters set forth in Section 6.18(a) above;
then, on the Additional Leased Premises Closing Date, if no "event of default"
shall exist under the Prime Lease and no Event of Default shall exist under this
Agreement or the Project Agreement, or an event which upon notice or lapse of
time or both would become such an Event of Default, and if no portion of the
space comprising the Additional Leased Premises shall be used for a retail
purpose, the Agency shall accept a leasehold interest in the Additional Leased
Premises, and shall enter into an amendment to this Agreement and to the Company
Lease to reflect the inclusion of the Additional Leased Premises in the Facility
Realty leased under this Agreement, the Prime Lease and the Company Lease, and
the Lessees shall be entitled to Benefits (as defined in the Project Agreement)
for Tenant Improvements thereafter effected at the Additional Leased Premises.
Section 6.19.Equitable to Remain Tenant Under Prime Lease. Equitable
covenants and agrees not to assign the Prime Lease to any Person. In the event
Equitable shall at any time or for any reason assign its interest in the Prime
Lease to any Person then:
(a) the Lessees shall deliver immediate written notice thereof to the
Agency and the Trustee,
(b) the Lessees shall promptly cause all of the Bonds to be redeemed as
provided in Section 6.12(b) hereof,
(c) the Lessees shall promptly pay all other amounts due under this
Agreement and the Project Agreement,
(d) this Agreement and the Company Lease shall terminate with respect to
the Facility Realty, subject to the survival of the obligations of the Lessees
hereunder pursuant to Sections 6.1, 6.2 and 9.17 hereof, and
(e) the Lessees shall promptly surrender the Sales Tax Letter to the Agency
for cancellation.
Section 6.20. Joint and Several Liability of the Lessees. All obligations,
covenants, agreements, promises and liabilities of the Lessees hereunder shall
be joint and several obligations of the Lessees in all respects.
Section 6.21. Eligibility of EVLICO as Lessee. In the event that EVLICO
shall cease to be a wholly-owned subsidiary of Equitable engaged in the
Equitable Business, (i) Equitable shall deliver immediate written notice thereof
to the Agency, (ii) EVLICO shall be released from this Agreement and the Project
Agreement (subject to the survival of all obligations as shall have accrued
prior to the date of such release or which are stated in this Agreement and/or
the Project Agreement to survive the termination of this Agreement and/or the
Project Agreement), and (iii) EVLICO shall promptly surrender the Sales Tax
Letter to the Agency, and the Agency shall thereupon deliver to Equitable an
amended Sales Tax Letter removing EVLICO as an agent of the Agency thereunder
(it being agreed that Equitable shall remain entitled to continue to avail
itself of Sales Tax Savings, as defined in the Project Agreement, until the
Agency shall deliver to Equitable the amended Sales Tax Letter, and thereafter
Equitable may continue to utilize the Sales Tax Letter in accordance with the
terms thereof).
Section 6.22. Equitable to Act as Agent of Lessees. Each Lessee agrees that
Equitable shall act as, and is hereby appointed, agent of the Lessees to receive
and/or send all notices, directions and documents to be received and/or sent by
the Lessees pursuant to this Agreement. The Agency may conclusively rely on the
authority of Equitable to act as agent of the Lessees with respect to all
matters under this Agreement and any other Project Document.
ARTICLE VII
Events of Default; Remedies
Section 7.1. Events of Default. Any one or more of the following events
shall constitute an "Event of Default" hereunder:
(a) Failure of either of the Lessees to pay any rent under Section 3.3 of
this Agreement that has become due and payable by the terms hereof and which
results in an Event of Default under the Indenture or the respective Bonds;
(b) Failure of either of the Lessees to pay any amount (except the
obligation to pay rent under Section 3.3 of this Agreement) that has become due
and payable under Section 4.2, 4.6, 4.7, 5.1, 6.1, 6.10, 6.14, 6.21, 6.22 or 8.4
hereof, or to observe and perform any covenant, condition or agreement on its
part to be performed under Section 2.3, 3.3, 3.5, 4.3, 4.4, 4.5, 6.2, 6.3, 6.12,
6.17, 6.19, 6.20, 7.2, 7.6 or 9.3 hereof, and continuance of such failure for a
period of thirty (30) days after receipt by the Lessees of notice specifying the
nature of such default from the Agency or the Trustee or the Holders of more
than twenty-five per centum (25%) in aggregate principal amount of the Bonds
Outstanding;
(c) Failure of either of the Lessees to observe and perform any covenant,
condition or agreement on its part to be performed under Section 4.2, 4.6, 4.7,
5.1, 6.10, 6.14, 6.18, 6.21 or 8.4 hereof, and continuance of such failure for a
period of thirty (30) days after receipt by the Lessees of notice specifying the
nature of such default from the Agency or the Trustee or Holders of more than
twenty-five per centum (25%) in aggregate principal amount of the Bonds
Outstanding, and, if by reason of the nature of such default the same can not be
remedied within the said (30) days but can be remedied within ninety (90) days,
the Lessees fail to remedy such default at the end of such ninety (90) day
period after proceeding with due diligence to cure such default;
(d) Failure of either of the Lessees to observe and perform any covenant,
condition or agreement on its part to be performed under Section 6.1 or 6.22
hereof, and the continuance of such failure for a period of thirty (30) days
after receipt by the Lessees of notice specifying the nature of such default
from the Agency or the Trustee or Holders of more than twenty-five per centum
(25%) in aggregate principal amounts of the Bonds Outstanding, but which default
is capable of being remedied, and the Lessees shall fail to proceed and continue
with due diligence their efforts to cure such default;
(e) If no Bonds shall be Outstanding under the Indenture, or if Bonds shall
not be issued and Outstanding under the Indenture in the minimum principal
amounts by the respective years specified in Section 2.3(c) hereof;
(f) Failure of either of the Lessees to pay any amount or to observe and
perform any covenant, condition or agreement hereunder on its part to be
performed (except as set forth in Section 7.1(a), (b), (c) or (d) above) and (1)
continuance of such failure for a period of thirty (30) days after receipt by
the Lessees of notice specifying the nature of such default from the Agency or
the Trustee or the Holders of more than twenty-five per centum (25%) in
aggregate principal amount of the Bonds Outstanding, or (2) if by reason of the
nature of such default the same can be remedied, but not within the said thirty
(30) days, the Lessees fail to proceed with reasonable diligence after receipt
of said notice to cure the same or fail to continue with reasonable diligence
their efforts to cure the same;
(g) Equitable shall (i) apply for or consent to the appointment of or the
taking of possession by a receiver, liquidator, custodian or trustee of itself
or of all or a substantial part of its property, (ii) admit in writing its
inability, or be generally unable, to pay its debts as such debts generally
become due, (iii) make a general assignment for the benefit of its creditors,
(iv) commence a voluntary case under the Federal Bankruptcy Code (as now or
hereafter in effect), (v) file a petition seeking to take advantage of any other
law relating to bankruptcy, insolvency, reorganization, rehabilitation,
winding-up, or composition or adjustment of debts, (vi) fail to controvert in a
timely or appropriate manner, or acquiesce in writing to, any petition filed
against itself in an involuntary case under such Bankruptcy Code (or under any
other laws referenced in clause (v) above, (vii) take any action for the purpose
of effecting any of the foregoing, or (viii) be adjudicated a bankrupt or
insolvent by any court of competent jurisdiction, provided, that, in the case of
any of the actions specified in clauses (i) through (viii) above, the same shall
not be dismissed within one hundred sixty (160) days after the initiation
thereof;
(h) A proceeding or case shall be commenced, without the application or
consent of Equitable, in any court of competent jurisdiction, seeking, (i)
liquidation, reorganization, dissolution, winding-up or composition or
adjustment of debts, (ii) the appointment of a trustee, receiver, liquidator,
custodian or the like of Equitable or of all or any substantial part of its
assets, or (iii) similar relief under any law relating to bankruptcy,
insolvency, rehabilitation, reorganization, winding-up or composition or
adjustment of debts, and such proceeding or case shall continue undismissed, or
an order, judgment or decree approving or ordering any of the foregoing shall be
entered and continue unstayed and in effect, for a period of one hundred twenty
(120) days; or Equitable shall acquiesce in writing to any of the foregoing; or
any order for relief against Equitable shall be entered in an involuntary case
under the Federal Bankruptcy Code; the terms "dissolution" or "liquidation" of
Equitable as used above shall not be construed to prohibit any action otherwise
permitted by Section 6.1 hereof;
(i) Any material representation or warranty made (i) by Equitable in the
application and related materials submitted to the Agency for approval of the
Project or its financing, or (ii) by any of the Lessees herein, or (iii) in any
Letter of Representation and Indemnity Agreement delivered to the Agency, the
Trustee and the original purchaser(s) of any Series of Bonds, or (iv) in any
report, certificate, financial statement or other instrument furnished pursuant
hereto or any of the foregoing shall have been relied on by the Agency and prove
to be knowingly false, misleading or incorrect in any material respect as of the
date made; or
(j) An "Event of Default" under the Indenture, the Project Agreement or any
other Project Document or Security Agreement shall occur and be continuing.
Section 7.2. Remedies on Default. Whenever any Event of Default referred to
in Section 7.1 hereof shall have occurred and be continuing, the Agency, or the
Trustee where so provided, may, take any one or more of the following remedial
steps:
(a) The Trustee (at the direction of the Holders of at least a majority in
aggregate principal amount of the Bonds Outstanding except if the Trustee shall
be enforcing defaults for its own benefit under Sections 6.2 or 6.3 hereof or
any other provision of this Agreement the uncured default under which exposes
the Trustee to any imminent civil or criminal liability), (y) as and to the
extent provided in Article VIII of the Indenture, may take any action permitted
under the Indenture with respect to an Event of Default thereunder including
causing all principal installments of rent payable under Section 3.3 hereof for
the remainder of the term of this Agreement to be immediately due and payable,
whereupon the same, together with the accrued interest thereon, shall become
immediately due and payable; provided, however, that upon the occurrence of an
Event of Default under Section 7.1(f) or (g) hereof, all principal installments
of rent payable under Section 3.3 hereof for the remainder of the term of this
Agreement, together with the accrued interest thereon, shall immediately become
due and payable without any declaration, notice or other action of the Agency,
the Trustee, the Holders of the Bonds or any other Person being a condition to
such acceleration; or (z) may take whatever action at law or in equity as may
appear necessary or desirable to collect the rent then due and thereafter to
become due, or to enforce performance or observance of any obligations,
agreements or covenants of the Lessees under this Agreement;
(b) The Agency, with the prior written consent of the Trustee (except as
provided in Section 7.2(c) below), or the Trustee, may terminate this Agreement,
in which case this Agreement and all of the right, title and interest herein
granted or vested in the Lessees shall cease and terminate (except for the
Lessees' rights under Section 8.1 hereof) unless prior to such termination all
accrued and unpaid rent (exclusive of any such rent accrued solely by virtue of
the acceleration of the due date of the Bonds as provided in Section 8.01 of the
Indenture), shall have been paid and all such defaults shall have been fully
cured. No such termination of this Agreement shall relieve the Lessees of their
liabilities and obligations hereunder and such liability and obligations shall
survive any such termination; and
(c) Upon the occurrence of an Event of Default under the Project Agreement
or with respect to any of the Agency's Reserved Rights, the Agency, without the
consent of the Trustee, any Holder of Bonds or any other Person, may proceed to
enforce the Agency's Reserved Rights by (i) (A) terminating this Agreement (with
the effect (y) as set forth in Section 7.2(b) hereof and without relieving the
Lessees of their liabilities and obligations under this Agreement, which
liabilities and obligations shall survive such termination, and (z) that the
term of this Agreement shall be deemed to have expired on such date of
termination as if such date were the original expiration date of the term of
this Agreement), and/or (B) conveying all of the Agency's right, title and
interest in the Project Property to the Lessees in accordance with Section 8.2
hereof, suspending or terminating the Sales Tax Letter or not re-confirming the
Sales Tax Letter on any annual confirmation date and/or requiring the Lessees to
surrender the Sales Tax Letter to the Agency for cancellation, and requiring the
Lessees to redeem the Bonds in whole, and/or (ii) bringing an action for
damages, injunction or specific performance, and/or (iii) taking whatever action
at law or in equity as may appear necessary or desirable to collect payment of
amounts due under this Agreement, or to enforce performance or observance of any
obligations, agreements or covenants of the Lessees under this Agreement.
In the event that the Lessees fail to make any rental payment required in
Section 3.3 hereof, the installment so in default shall continue as an
obligation of the Lessees until the amount in default shall have been fully
paid.
No action taken pursuant to this Section 7.2 (including termination of this
Agreement pursuant to this Section 7.2 or by operation of law or otherwise)
shall, except as expressly provided herein, relieve the Lessees from their
obligations hereunder, all of which shall survive any such action.
Section 7.3. Remedies Cumulative. Except as specifically provided in this
Agreement, the rights and remedies of the Agency or the Trustee under this
Agreement shall be cumulative and shall not exclude any other rights and
remedies of the Agency or the Trustee allowed by law with respect to any default
under this Agreement. Failure by the Agency or the Trustee to insist upon the
strict performance of any of the covenants and agreements herein set forth or to
exercise any rights or remedies upon default by any of the Lessees hereunder
shall not be considered or taken as a waiver or relinquishment for the future of
the right to insist upon and to enforce by mandatory injunction, specific
performance or other appropriate legal remedy a strict compliance by the Lessees
with all of the covenants and conditions hereof, or of the rights to exercise
any such rights or remedies, if such default by the Lessees be continued or
repeated.
Section 7.4. No Additional Waiver Implied by One Waiver. In the event any
covenant or agreement contained in this Agreement should be breached by either
party and thereafter waived by the other party, such waiver shall be limited to
the particular breach so waived and shall not be deemed to waive any other
breach hereunder. No waiver shall be binding unless it is in writing and signed
by the party making such waiver. No course of dealing between the Agency and/or
the Trustee and the Lessees or any delay or omission on the part of the Agency
and/or the Trustee in exercising any rights hereunder, under the Indenture or
under any other Project Document or Security Document shall operate as a waiver.
Section 7.5. Effect of Discontinuance of Proceedings. In case any
proceeding taken by the Trustee or the Agency under the Indenture, this
Agreement, or any other Project Document or Security Document on account of any
Event of Default hereunder or under the Indenture or any other Project Document
or Security Document shall have been discontinued or abandoned for any reason or
shall have been determined adversely to the Trustee, then, and in every such
case, the Agency, the Trustee and the Holders of the Bonds shall be restored,
respectively, to their former positions and rights hereunder and thereunder, and
all rights, remedies, powers and duties of the Agency and the Trustee shall
continue as in effect prior to the commencement of such proceedings.
Section 7.6. Agreement to Pay Attorneys' Fees and Expenses. In the event
any of the Lessees should default under any of the provisions of this Agreement
after notice and the expiration of any applicable grace period, and the Agency
or the Trustee should employ outside attorneys or incur other out-of-pocket
expenses for the collection of rentals or other amounts payable hereunder or the
enforcement of performance or observance of any obligation or agreement on the
part of the Lessees herein contained, the Lessees will on demand therefor pay to
the Agency or the Trustee the reasonable fees and disbursements of such outside
attorneys and such other reasonable out-of-pocket expenses so incurred.
ARTICLE VIII
Options
Section 8.1. Options. (a) Subject to the provisions of Section 2.3 hereof,
the Lessees have the option to make advance rental payments for deposit in the
Bond Fund to effect the retirement of the Bonds in whole or the redemption in
whole or in part of the Bonds of any Series, all in accordance with the terms of
the Indenture and the related Certificate of Determination of the Series of
Bonds to be redeemed (except that no partial retirement or partial redemption of
Bonds shall be effected if less than the applicable minimum principal amount of
Bonds as set forth in Section 2.3(c) hereof shall remain Outstanding by reason
thereof). The Lessees shall further have the option of causing money and/or
Defeasance Securities to be deposited in the Bond Fund so long as such deposit
shall not cause less than the applicable minimum principal amount of Bonds as
set forth in Section 2.3(c) hereof to cease to be Outstanding. The Lessees shall
exercise their option to make such advance rental payments by delivering a
notice of an Authorized Representative of the Lessees to the Trustee in
accordance with the Indenture, with a copy to the Agency, setting forth (i) the
amount of the advance rental payment, (ii) the Series of the Bonds to be
redeemed, (iii) the principal amount of Bonds Outstanding of such Series
requested to be redeemed with such advance rental payment (which principal
amount shall be in such minimum amount or integral multiple of such amount as
shall be permitted in the Indenture), and (iv) the date on which such principal
amount of Bonds of such Series is to be redeemed. Such date of redemption may be
any date during the term of this Agreement (subject to the terms of Section 2.3
hereof), and shall be a date sufficient to enable the Trustee to deliver such
notice of redemption in the time period required for the respective Series of
Bonds being redeemed. Such advance rental payment shall be paid to the Trustee
in legal tender on or before the redemption date and shall be an amount which,
when added to the amount on deposit in the Bond Fund and available therefor,
will be sufficient to pay the Redemption Price of the Bonds of such Series to be
redeemed, together with interest to accrue to the date of redemption and all
reasonable expenses of the Agency, the Trustee, the Bond Registrar and the
Paying Agents in connection with such redemption. In the event all Bonds are to
be redeemed in whole or otherwise retired, the Lessees shall further pay or
cause to be paid on or before such redemption date, in legal tender, to the
Agency, the Trustee, the Bond Registrar and the Paying Agents, as the case may
be, all fees and expenses owed such party or any other party entitled thereto
under this Agreement, the Project Agreement and the Indenture, together with all
other amounts due and payable under this Agreement, the Project Agreement and
the Indenture.
(b) The Lessees, in exercising their option to redeem all Bonds in whole
(subject to the provisions of Section 2.3 hereof), shall pay to the Trustee in
legal tender, advance rental payments for deposit in the Bond Fund equal to the
sum of the following:
(i) an amount which, when added to the amount on deposit in the Bond Fund
and available therefor, will be sufficient to pay, retire and redeem the
Outstanding Bonds in accordance with the provisions of the Indenture (including
the provisions of Section 10.01 thereof), including, without limitation, the
principal of or the Redemption Price (as the case may be) of, together with
interest to maturity or redemption date (as the case may be) on, the Outstanding
Bonds;
(ii) the expenses of redemption and expenses of the Agency, the Trustee,
the Bond Registrar and the Paying Agents and all other amounts due and payable
under this Agreement, the Indenture, and each other Security Document and
Project Document (other than the Prime Lease); and
(iii) one dollar.
(c) Upon the payment in full of the principal of and interest on the
Outstanding Bonds (whether at maturity or earlier redemption), the Lessees shall
have the option to terminate this Agreement and acquire the Agency's interest in
the Tenant Improvements, the Leased Personalty, the Maintenance Contracts and
the Facility Equipment and shall exercise such option by (1) delivering to the
Agency prior written notice of an Authorized Representative of the Lessees no
more than thirty (30) days after the payment in full of the Bonds of the
exercise of such option, which notice shall set forth a requested closing date
for such purchase which shall be not later than ten (10) days after the payment
in full of the Bonds, and (2) paying on such closing date an aggregate sum of
one dollar, the expenses of the Agency, the Trustee, the Bond Registrar and the
Paying Agents and all other amounts due and payable under this Agreement, the
Project Agreement, the Indenture or any other Security Documents or Project
Documents (other than the Prime Lease). Upon the written request of the Lessees,
the Agency may approve the extension or waiver of any of the time periods set
forth in this paragraph.
(d) None of the Lessees shall, at any time, assign or transfer its option
to acquire the Agency's interest in the Tenant Improvements, the Leased
Personalty, the Maintenance Contracts and the Facility Equipment, as contained
in this Section 8.1, except upon an assignment of this Agreement effected in
accordance with Section 9.3 hereof.
Section 8.2. Conveyance and Reversion on Exercise of Option. Upon the
termination of this Agreement, the Agency will deliver or cause to be delivered
to the Lessees, at the sole cost and expense of the Lessees, (a) documents (the
form of which may be provided by the Lessees so long as the Agency shall make no
covenants nor warranties thereunder nor have any liability by reason of such
documents) conveying to the Lessees for a one dollar consideration all of the
Agency's right, title and interest in the Project Property, and (b) documents
releasing and conveying to the Lessees all of the Agency's rights and interests
in and to any rights of action (other than the Agency's Reserved Rights), or any
insurance proceeds (other than liability insurance proceeds for the benefit of
the Agency) or condemnation award, with respect to the Project Property.
Concurrently with the delivery of such documents, there shall be delivered by
the Agency to the Trustee any instructions or other instruments required by
Section 10.01 of the Indenture to defease and pay the Bonds.
Upon conveyance of the Agency's interest in the Project Property pursuant
to this Section 8.2, this Agreement and all obligations of the Lessees hereunder
shall be terminated except the obligations of the Lessees under Sections 6.1,
6.2 and 9.17 hereof shall survive such termination.
Section 8.3. Option to Purchase or Invite Tenders of Bonds. In the event
any of the Lessees shall purchase Bonds for its own account, whether by direct
negotiation, through a broker or dealer, or by making a tender offer to the
Holders of the Bonds, the Bonds so purchased by any of the Lessees shall be
delivered to the Trustee for cancellation within fifteen (15) days of the date
of purchase.
Section 8.4. Termination of Agreement. After full payment of the Bonds
shall have been made in accordance with Section 10.01 of the Indenture, the
Lessees shall terminate this Agreement by paying all amounts due and payable
under this Agreement, the Project Agreement, and the other Security Documents
and Project Documents (other than the Prime Lease) to which the Lessees are a
party, and by giving the Agency notice in writing of such termination and
thereupon such termination shall forthwith become effective, subject, however,
to the survival of the obligations of the Lessees under Sections 6.1, 6.2 and
9.17 hereof. In the event that the Lessees, within ten (10) days after full
payment of the Bonds having been made in accordance with Section 10.01 of the
Indenture, shall not have terminated this Agreement, the Agency shall have the
right to terminate this Agreement (subject to the survival of those provisions
of this Agreement stated to survive in the last clause of the preceding
sentence) and to require the Lessees to make the payments referred to in the
preceding sentence.
Upon termination of this Agreement, the Agency, upon the written request
and at the sole cost and expense of the Lessees, shall execute such instruments
as the Lessees may reasonably request to discharge this Agreement as a document
of record with respect to the Facility Realty.
ARTICLE IX
Miscellaneous
Section 9.1. Indenture; Amendment. The Lessees shall have and may exercise
all the rights, powers and authority stated to be in the Lessees in the
Indenture and in the Bonds, and the Indenture and the Bonds shall not be
modified, altered or amended in any manner without the consent of the Lessees.
Section 9.2. Force Majeure. In case by reason of force majeure either party
hereto shall be rendered unable wholly or in part to carry out its obligations
under this Agreement, then except as otherwise expressly provided in this
Agreement, if such party shall give notice and full particulars of such force
majeure to the other party within a reasonable time after occurrence of the
event or cause relied on, the obligations of the party giving such notice (other
than the obligations of the Lessees to make the rental payments or other
payments required under the terms hereof, or to comply with Sections 2.3, 4.2,
4.3, 4.4, 4.6, 6.1, 6.2, 6.3, 6.10, 6.12, 6.17, 6.18, 6.19, 6.20, 6.21, 6.22 or
9.3 hereof), so far as they are affected by such force majeure, shall be
suspended during the continuance of the inability then claimed which shall
include a reasonable time for the removal of the effect thereof, but for no
longer period, and such party shall endeavor to remove or overcome such
inability with all reasonable dispatch. The term "force majeure", as employed
herein, shall mean acts of God, strikes, lockouts or other industrial
disturbances, acts of the public enemy, orders of any kind of the Government of
the United States or of the State or any civil or military authority,
insurrections, riots, epidemics, landslides, lightning, earthquakes, fires,
hurricanes, storms, floods, washouts, droughts, arrest, restraining of
government and people, civil disturbances, explosions, partial or entire failure
of utilities, shortages of labor, material, supplies or transportation, or any
other similar or different cause not reasonably within the control of the party
claiming such inability. The settlement of existing or impending strikes,
lockouts or other industrial disturbances shall be entirely within the
discretion of the party having the difficulty and the above requirements that
any force majeure shall be reasonably beyond the control of the party and shall
be remedied with all reasonable dispatch shall be deemed to be fulfilled even
though such existing or impending strikes, lockouts and other industrial
disturbances may not be settled but could have been settled by acceding to the
demands of the opposing person or persons.
The Lessees shall promptly notify the Agency upon the occurrence of each
Force Majeure, describing such Force Majeure and its effects in reasonable
detail. The Lessees shall also promptly notify the Agency upon the termination
of each such Force Majeure occurrence. The information set forth in any such
notice shall not be binding upon the Agency, and the Agency shall be entitled to
dispute the existence of any Force Majeure and any of the contentions contained
in any such notice received from the Lessees.
Section 9.3. Assignment or Sublease. (a) Except as otherwise expressly
permitted herein, none of the Lessees shall at any time assign or transfer this
Agreement, or sublet all or substantially all of the Facility Realty without in
each case the prior written consent of the Agency (which consent may be
unreasonably withheld); provided, that, in the event the Agency shall provide
such consent, (i) the Lessees shall nevertheless remain liable to the Agency for
the payment of all rent and for the full performance of all of the terms,
covenants and conditions of this Agreement and of any other Security Document or
Project Document to which they shall be a party, (ii) any assignee or transferee
of any of the Lessees, or sublessee of all or substantially all of the Facility
Realty, shall have executed and delivered to the Agency and the Trustee an
instrument, in form for recording, in and by which the assignee, transferee or
sublessee shall have assumed in writing and have agreed to keep and perform all
of the terms of this Agreement (and of each other Project Document or Security
Document to which the Lessees shall be a party) on the part of the Lessees to be
kept and performed, shall be jointly and severally liable with the Lessees for
the performance thereof, shall be subject to service of process in the State,
and, if a corporation, shall be qualified to do business in the State, (iii) in
the Opinion of Counsel, such assignment or transfer shall not cause the
obligations of the Lessees for the payment of all rents nor for the full
performance of all of the terms, covenants and conditions of this Agreement, or
of any other Security Document or Project Document to which the Lessees shall be
a party, to cease to be legal, valid and binding on and enforceable against the
Lessees, (iv) any assignee, transferee or sublessee shall utilize the Facility
Realty as a qualified "project" as defined in the Act and for the general
purposes specified in the recitals to this Agreement, (v) such assignment or
transfer shall not violate any provision of this Agreement, the Indenture or any
other Security Document or Project Document, (vi) such assignment or transfer
shall in no way diminish or impair the Lessees' obligation to carry the
insurance required under Section 4.4 of this Agreement and the Lessees shall
furnish written evidence satisfactory to the Agency that such insurance coverage
shall in no manner be limited by reason of such assignment or transfer, and
(vii) each such assignment, transfer or sublease contains such other provisions
as the Agency or the Trustee may reasonably require (notice of which the Agency
or the Trustee shall provide to the Lessees within twenty (20) days following
the request for their consent). The Lessees shall furnish or cause to be
furnished to the Agency and the Trustee a copy of any such assignment, transfer
or sublease in substantially final form at least fifteen (15) days prior to the
date of execution thereof.
(b) The Lessees shall have the right to sublet (subject to the provisions
of Section 6.17 hereof) portions of the Facility Realty to one or more
Non-Qualified Users not in excess of the Maximum Sublet Space (as defined in
Section 6.17(b) hereof) of the Facility Realty, provided in each case that (i)
no such sublessee is a Prohibited Person, (ii) the Lessees shall remain liable
to the Agency for the payment of all rent and for the full performance of all of
the terms, covenants and conditions of this Agreement and of any other Security
Document or Project Document to which they shall be a party, (iii) any sublessee
shall utilize the Facility Realty as a qualified "project" as defined under the
Act, and (iv) prior to the entering into of such sublease, the Lessees shall
have delivered to the Agency:
(A) a copy of the proposed sublease indicating the proposed term (which
shall not be later than December 31, 2011), all renewal options, and the amount
of rentable square feet to be sublet,
(B) the identity of the proposed subtenant and the identity of its
principal officers, and, if not a publicly traded corporation, the identity of
its principal stockholders, and the proposed use of the space to be sublet,
(C) evidence reasonably satisfactory to the Agency that such sublease will
not diminish or impair the obligation of the Lessees to carry the insurance
required under Section 4.4 hereof, and that such insurance coverage shall in no
manner be limited by such sublease, and
(D) evidence reasonably satisfactory to the Agency that the subtenant is
not a Prohibited Person.
In the event the Agency shall reasonably request additional information with
respect to the proposed sublease or subtenant, the Lessees shall deliver such
information to the Agency promptly after such request. In the event the Agency
shall not consent to the proposed sublease, the Lessees may effect the release
of the proposed sublet space as provided in Section 6.17.
(c) The Lessees shall not have the right to sublet all or any part of the
Tenant Improvements, Facility Equipment, Maintenance Contracts or Leased
Personalty to any Person without the prior written consent of the Agency.
(d) Any consent by the Agency or the Trustee to any act of assignment or
transfer of this Agreement, or sublease in whole or in part of the Facility
Realty or the Project Property, shall be held to apply only to the specific
transaction thereby authorized. Such consent shall not be construed as a waiver
of the duty of the Lessees, or the successors or assigns of any of the Lessees,
to obtain from the Agency and the Trustee consent to any other or subsequent
assignment or transfer of this Agreement, or sublease in whole or in part of the
Facility Realty or the Project Property, or as modifying or limiting the rights
of the Agency or the Trustee or the obligations of the Lessees under this
Section 9.3.
Section 9.4. Priority of Indenture. Pursuant to the Indenture, the Agency
will pledge and assign the rentals and certain other moneys receivable under
this Agreement to the Trustee as security for payment of the principal or
Redemption Price, if applicable, of and interest on the Bonds. This Agreement
shall be subject and subordinate to the Indenture, and the pledge and assignment
under the Indenture.
Section 9.5. Benefit of, Enforcement and Binding Effect of this Agreement.
This Agreement is executed in part to induce the purchase by others of the Bonds
and for the further securing of the Bonds, and accordingly all covenants and
agreements on the part of the Agency and the Lessees as set forth in this
Agreement are hereby declared to be for the benefit of the Agency, the Lessees,
the Trustee and the Holders from time to time of the Bonds (and may be enforced
as provided in Article VIII of the Indenture on behalf of the Holders of the
Bonds by the Trustee) and for no other Person whatsoever.
Section 9.6. Amendments. This Agreement may be amended only with the
consent of the Trustee given in accordance with the provisions of the Indenture
and only if such amendment shall be in writing and signed by both the Lessees
and the Agency.
Section 9.7. Notices. All notices, certificates, requests, approvals,
consents or other communications hereunder 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, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, with a copy to the
Executive Director of the Agency at the same address;
(b) if to the Lessees, c/o The Equitable Life Assurance Society of the
United States, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., with a copy to Stroock & Stroock &
▇▇▇▇▇, ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇, Esq.;
and
(c) if to the Trustee, to United States Trust Company of New York, ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust and Agency
Division.
The Agency, the Lessees and the Trustee may, by like notice, designate any
further or different persons or addresses to which subsequent notices,
certificates, requests, approvals, consents or other communications shall be
sent. Any notice, certificate, requests, approvals, consents 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.
Section 9.8. Prior Agreements Superseded. This Agreement shall completely
and fully supersede all other prior understandings or agreements, both written
and oral, between the Agency and the Lessees relating to the Project Property
with respect to the subject matter hereof, other than (y) any Project Document
or Security Document or other document being executed contemporaneously
herewith, or (z) the Pre-Bond Issuance Sales Tax Letter (including the Sales Tax
Savings received thereunder) and related Indemnification Agreement.
Section 9.9. Severability. If any clause, provision or section of this
Agreement be ruled invalid by any court of competent jurisdiction, the
invalidity of such clause, provision or section shall not affect any of the
remaining provisions hereof.
Section 9.10.Inspection of the Project Property. The Lessees will permit
the Trustee, or its duly authorized agents, at all reasonable times upon
reasonable notice to enter upon the Facility Realty and to examine and inspect
the Project Property and exercise its rights hereunder and under the other
Project Documents and the other Security Documents with respect to the Project
Property, and (ii) the Lessees will further permit the Agency, or its duly
authorized agents, at all reasonable times upon reasonable notice to enter upon
any Approved Equitable City Location but solely for the purpose of assuring that
(x) the Lessees are operating the Project Property, or are causing the Project
Property to be operated, as a qualified "project" under the Act consistent with
the purposes set forth in the recitals to this Agreement and with the public
purposes of the Agency, (y) ascertaining whether or not a Relocation Reduction
(as defined in the Project Agreement), a Non-Relocation Reduction (also as
defined in the Project Agreement) or a headquarters relocation has occurred, or
(z) determining whether the Project Property and/or the use thereof is in
violation of any environmental law; but not for any purpose of assuring the
proper maintenance or repair of the Project Property as such latter obligation
is and shall remain solely the obligation of the Lessees.
Section 9.11. Effective Date; Counterparts. This Agreement shall become
effective upon its delivery. It may be executed in counterparts, each of which
shall be an original and all of which shall constitute but one and the same
instrument.
Section 9.12.Binding Effect. This Agreement shall be binding upon the
Agency and the Lessees and their respective successors and assigns, and inure to
the benefit of the Agency, the Trustee and the Holders of the Bonds, and to no
other Person.
Section 9.13. Net Lease. It is the intention of the parties hereto that
this Agreement be a "net lease" and that all of the rent be available for debt
service on the Bonds, and this Agreement shall be construed to effect such
intent.
Section 9.14. Law Governing. This Agreement shall be governed by, and
construed in accordance with, the internal laws of the State, without regard to
conflict of law principles.
Section 9.15. Investment of Funds. Any moneys held as part of the Project
Fund or the Bond Fund or in any special fund provided for in this Agreement or
in the Indenture to be invested in the same manner as in any said Fund shall, at
the request of an Authorized Representative of the Lessees, be invested and
reinvested by the Trustee as provided in the Indenture. Neither the Agency nor
any of its members, directors, officers, agents, servants or employees shall be
liable for any depreciation in the value of any such investments or for any loss
arising therefrom.
Interest and profit derived from such investments shall be credited and
applied as provided in the Indenture, and any loss resulting from such
investments shall be similarly charged.
Section 9.16.Investment Tax Credit. It is the intention of the parties that
any investment tax credit or comparable credit which may ever be available
accrue to the benefit of the Lessees and the Lessees shall, and the Agency upon
advice of counsel may, make any election and take other action in accordance
with the Internal Revenue Code of 1986, as amended, and the Treasury Regulations
applicable thereunder, as may be necessary to entitle the Lessees to have such
benefit.
Section 9.17.Waiver of Trial by Jury. The parties do hereby expressly waive
all rights to trial by jury on any cause of action directly or indirectly
involving the terms, covenants or conditions of this Agreement or the Project
Property or any matters whatsoever arising out of or in any way connected with
this Agreement.
The provision of this Agreement relating to waiver of a jury trial shall
survive the termination or expiration of this Agreement.
Section 9.18.Non-Discrimination. (a) At all times during the term of this
Agreement, the Lessees shall comply with all federal, state and local laws
relating to non-discrimination, and the Lessees shall not discriminate against
any employee or applicant for employment because of race, color, creed, age, sex
or national origin. The Lessees shall use their best efforts to ensure that
employees and applicants for employment with the Lessees at the Facility Realty
are treated without regard to their race, color, creed, age, sex or national
origin. As used herein, the term "treated" shall mean and include, without
limitation, the following: recruited, whether by advertising or other means;
compensated, whether in the form of rates of pay or other forms of compensation;
selected for training, including apprenticeship; promoted; upgraded; downgraded;
demoted; transferred; laid off; and terminated.
(b) Each of the Lessees shall, in all solicitations or advertisements for
employees placed by or on behalf of the Lessees, state that all qualified
applicants will be considered for employment without regard to race, color,
creed or national origin, age or sex, and state that such Lessee is an equal
opportunity employer.
(c) The Lessees shall furnish to the Agency all information reasonably
required by the Agency pursuant to this Section and will cooperate with the
Agency for the purposes of investigation to ascertain compliance with this
Section.
(d) The Agency and the Lessees shall, from time to time, mutually agree
upon goals for the employment, training, or employment and training of members
of minority groups in connection with performing work with respect to Approved
Equitable City Locations.
Section ▇.▇▇.▇▇ Recourse under This Agreement or on Bonds. All covenants,
stipulations, promises, agreements and obligations of the Agency contained in
this Agreement 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 the principal of, redemption premium,
if any, or interest on the Bonds or for any claim based thereon or hereunder
against any member, director, officer, employee or agent of the Agency or any
natural person executing the Bonds.
All covenants, stipulations, promises, agreements and obligations of the
Lessees contained in this Agreement shall be deemed to be the covenants,
stipulations, promises, agreements and obligations of the Lessees, and not of
any director, officer, employee or agent of any of the Lessees in his individual
capacity, and no recourse shall be had for the payment of the principal of,
redemption premium, if any, or interest on the Bonds or for any claim based
thereon or hereunder against any director, officer, employee or agent of any of
the Lessees.
Section 9.20. This Agreement to Constitute an Amendment and Restatement.
This Agreement shall constitute an amendment and restatement of a certain
Interim Sublease Agreement dated as of December 29, 1995 between the Agency and
the Lessees.
Section 9.21. Date of Agreement for Reference Purposes Only. The date of
this Agreement shall be for reference purposes only and shall not be construed
to imply that this Agreement was executed on the date first above written. This
Agreement was executed and delivered on the Lease Commencement Date.
IN WITNESS WHEREOF, the Agency has caused its corporate name to be hereunto
subscribed by its duly authorized Deputy Executive Director and attested under
the seal of the Agency by an Assistant Secretary and each of the Lessees has
caused its corporate name to be subscribed hereto by an authorized officer and
attested under its corporate seal by its Secretary or an Assistant Secretary
pursuant to a resolution duly adopted by its Board of Directors, all being done
as of the year and day first above written.
(SEAL) NEW YORK CITY INDUSTRIAL
DEVELOPMENT AGENCY
Attest:
By /s/▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------
______________________ ▇▇▇▇▇ ▇▇▇▇▇▇▇,
Assistant Secretary Deputy Executive Director
(SEAL) THE EQUITABLE LIFE ASSURANCE
SOCIETY OF THE UNITED STATES,
as Lessee
Attest:
/s/▇▇▇▇▇ ▇▇▇▇▇▇▇ By /s/▇▇▇▇ ▇▇▇▇▇▇
---------------------- ----------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice Presidnet & Assistant Secretary Senior Vice President
(SEAL) EQUITABLE VARIABLE LIFE
INSURANCE COMPANY,
as Lessee
Attest:
/s/▇▇▇▇▇ ▇▇▇▇▇▇▇ By /s/▇▇▇▇ ▇▇▇▇▇▇
---------------------- ----------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice Presidnet & Assistant Secretary Senior Vice President
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 ▇▇▇▇▇ ▇▇▇▇▇▇▇, to me known, who being by
me duly sworn, did depose and say that she resides at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇; that she is the Deputy Executive Director of 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/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------
Notary Public
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the 8 th day of May, in the year one thousand nine hundred and
ninety-six, before me personally came ▇▇▇▇ ▇▇▇▇▇▇, to me known, who being by me
duly sworn, did depose and say that he resides at ▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇.▇.
▇▇▇▇▇; that he is a Senior Vice President of The Equitable Life Assurance
Society of the United States, a Lessee described in and which executed the above
instrument; that he knows the seal of such Lessee; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of such Lessee; and that he signed his name thereto by like
authority.
/s/▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------
Notary Public
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 ▇▇▇▇ ▇▇▇▇▇▇, to me known, who being by me
duly sworn, did depose and say that he resides at ▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇.▇.
▇▇▇▇▇; that he is a Vice President of Equitable Variable Life Insurance Company,
a Lessee described in and which executed the above instrument; that he knows the
seal of such Lessee; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of such
Lessee; and that he signed his name thereto by like authority.
/s/▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------
Notary Public
APPENDICES
DESCRIPTION OF PROJECT
The construction from time to time of leasehold improvements and
renovations to the Facility Realty and the acquisition (by purchase, lease or
license) from time to time of machinery, equipment and certain other personal
property including computer software for use at Approved Equitable City
Locations by the Lessees within the City in conducting the Equitable Business.
DESCRIPTION OF PRE-BOND ISSUANCE PROJECT COSTS
Amount Bond Bond
Category Purchased Adjustment Issue
-------- ----------------- --------------- ----------------
EDP Equipment................. $ 734,615.06 $ - $ 734,615.06
Leasehold Improvements........ 1,121,495.62 - 1,121,495.62
Furniture and Equipment....... 4,864.88 - 4,864.88
Computer Accessories.......... 65,252.10 - 65,252.10
Equipment Rental.............. 76,770.13 (5,107.00) 71,663.13
Maintenance Agreements........ 698.59 (698.59) 0
Software...................... 55,374.98 - 55,374.98
----------------- --------------- ----------------
Total......................... $ 2,059,071.36 $ (5,805.59) $ 2,053,265.77
================= =============== ================
DESCRIPTION OF FACILITY REALTY
Floors fourteen (14) through twenty-two (22), inclusive, together with the
concourse of that certain building located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇.
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
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇;
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 ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ 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 ▇▇▇▇ ▇▇▇▇▇▇ at the point or place
of BEGINNING.