Exhibit 10(xxxiv)(c)
SECOND AMENDMENT OF LEASE
Agreement, dated as of November 21, 1996, between WFP TOWER B CO.
L.P., a New York limited partnership having an office at Xxx Xxxxxxx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000 ("Landlord"), and XXXXXXX XXXXX/WFC/L, INC., a New York
corporation having an office c/o Merrill Xxxxx & Co., Inc., World Financial
Center, North Tower, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000 ("Tenant").
WITNESSETH
WHEREAS, Olympia & York Tower B Company ("O&Y"), the predecessor-in-
interest of Landlord, and Tenant entered into an Agreement of Lease, dated as of
September 29, 1988 ("Original Lease B"), covering certain premises more
particularly described in Original Lease B consisting of (i) the parcel of land
known as Parcel B at the World Financial Center of Battery Park City, New York,
New York, and (ii) the buildings and improvements constructed on said parcel of
land (collectively, "Building B"), except for certain retail and storage space
at Building B, a memorandum of which lease was recorded in the Office of the
Register of the City of New York, County of New York, on October 4, 1988, in
Reel 1473, at Page 2138; and
WHEREAS, O&Y and Tenant entered into an Amendment of Lease, dated as of
December 14, 1988 (the "First Amendment"; Original Lease B, as modified by the
First Amendment, is hereinafter referred to as "Lease B"), a memorandum of which
amendment was recorded in the Office of the Register of the City of New York,
County of New York, on December 14, 1988, in Reel 1506, at Page 2144; and
WHEREAS, Landlord and Tenant now desire to further amend Lease B as more
particularly set forth in this Agreement.
NOW, THEREFORE, Landlord and Tenant agree as follows:
1. Capitalized Terms. All capitalized terms used in this Agreement which
are not otherwise defined herein shall have the meanings ascribed to them in
Lease B.
2. Modifications to Lease B. Effective as of the date of this Agreement,
Lease B is hereby modified as follows:
(a) Section 1.13 of Original Lease B is deleted in its entirety and
the following is inserted in its place:
"1.13 "Business Days" shall mean all days which are not a
Saturday, Sunday or a day observed as a holiday by either the State
of New York or the federal government."
(b) The term "limited liability company" is inserted after the word
"association" in the third line of Section 1.97 of Original Lease B.
(c) The clause "prime rates by Citibank, N.A., Manufacturers Hanover
Trust Company and Chemical Bank" is deleted in the third and fourth lines
of Section 1.107 of Original Lease B and the clause "base rate, prime rate
or term of similar import by Citibank, N.A. and The Chase Manhattan Bank"
is inserted in its place. The reference to "prime rates" on the fifth line
of Section 1.107 of Original Lease B is replaced with the following "base
rate, prime rate or term of similar import."
(d) Landlord and Tenant acknowledge that the Tower Sublease no
longer is in existence and, accordingly, agree as follows: (i) the
provisions of Section 2.02(d) of Original Lease B will apply as if the
Tower Sublease terminated as a result of a default by the Tenant
thereunder and, accordingly, the Non-Subleased Premises will include all
of the space originally leased under the Tower Sublease, (ii) all
references in Section 2.02(g) of Original Lease B to the Tower Sublease
shall continue to apply notwithstanding that the Tower Sublease is no
longer in existence but shall refer to the form of Tower Sublease executed
on September 29, 1988, (iii) the words "but only if at the time in
question such floor is part of the Non-Subleased Premises" in the fourth
and fifth lines of Section 3.01(o) of Original Lease B are hereby deleted,
(iv) the words "the tenant under the Tower Sublease" in the fourth and
fifth lines of Section 7.01(b) of Original Lease B and in the fifteenth
and sixteenth lines of Section 7.02(j) of Original Lease B are hereby
deleted, (v) all references to the Tower Sublease in Section 10.08 of
Original Lease B are hereby deleted, other than the provisions of clause
(c) thereof, which will continue to apply as if the Tower Sublease had
continued in effect, and (vi) the provisions of Section 26.01(a) of
Original Lease B shall be of no further force or effect.
(e) Landlord and Tenant acknowledge that as of December 14, 1988,
the original schedule for the payment of Fixed Office Rent set forth in
Sections 3.01(a)(i) - (iv) and Part A of Exhibit I-1 of Original Lease B
was no longer applicable (the conditions therefor set forth in Original
Lease B having been satisfied) and that since such date Fixed Office Rent
has been and continues to be payable in accordance with Sections
3.01(a)(1) - (3) and Part B of Exhibit I-1 of Original Lease B. Landlord
and Tenant acknowledge that this Section 2(e) fully incorporates the
provisions of that certain letter agreement, dated December 14, 1988,
among O&Y, Tenant and Bankers Trust Company, as collateral agent,
concerning the subject matter of this Section 2(e), and that no further
reference to such letter agreement as an amendment of Original Lease B
shall be required.
(f) Article 6 of the Original Lease is amended by inserting on the
twenty-third line thereof after the word "to" the words "and including."
(g) The following is inserted at the end of Section 9.01(a) of
Original Lease B:
"In each case under this Section 9.01(a) in which the Rental payable
by Tenant is required to be apportioned, the entire amount of Fixed
Rent that was due and payable on the first day of the month in which
such apportionment occurs shall be retained by Landlord, and Tenant
shall pay to Landlord on the date of such apportionment an
additional payment of Fixed Rent (in the abated amount described
above) in respect of the month in which such apportionment occurs,
appropriately prorated to the date of apportionment."
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(h) Section 9.01(e) of Original Lease B, as amended by the First
Amendment, is hereby amended to replace "$800,000,000" which constitutes
clause (x) thereof with the following:
"(x) the amount for the period in which such Shortfall is paid
set forth on the schedule annexed as Exhibit A to the Second
Amendment of Lease, dated November 21, 1996, between Landlord
and Tenant"
(i) Section 9.01(e) of Original Lease B, as amended pursuant to
Section 2(g) above, is hereby further amended by inserting the following
sentence at the end thereof:
"Any amount payable by Tenant under this Section 9.01(e) shall
be due within 15 days after Tenant is given notice that the
award has been so paid to Landlord or the Secured Lender."
(j) For purposes of Section 9.01(e) of Original Lease B, the term
"Secured Lender" shall not include the holder of the Zero Coupon Note (as
defined in Section 2(l) below).
(k) Sections 25.01(a) and (b) of Original Lease B are deleted in
their entirety and the following is inserted in their place:
"(a) If by Tenant or Merrill, (i) by personal delivery of the
same to and receipted on behalf of Landlord or (ii) by mailing the
same to Landlord by certified or registered mail, postage prepaid,
return receipt requested, addressed to Landlord at Xxx Xxxxxxx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Chief Financial Officer,
with a copy thereof by personal delivery or certified or registered
mail as aforesaid to (x) Landlord at Xxx Xxxxxxx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Managing Attorney and (y) Fried, Frank,
Harris, Xxxxxxx & Xxxxxxxx, Xxx Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxxxx Xxxxxxxxxxx, Esq., and/or to such other
addressee(s) as Landlord may from time to time designate by Notice
given to Tenant and Merrill by personal delivery of certified or
registered mail as aforesaid, except that at no time shall Tenant
and Merrill be required to give, in the aggregate, more than five
(5) Notices or copies thereof.
(b) If by Landlord, (i) by personal delivery of the same to
and receipted on behalf of Tenant and Merrill or (ii) by mailing the
same to Tenant and Merrill by certified or registered mail, postage
prepaid, return receipt requested, addressed to Tenant and Merrill
c/o Merrill Xxxxx & Co., Inc., Director, Corporate Real Estate,
World Financial Center, 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: H. Xxxxx Xxxxx, with a copy thereof by
personal delivery or certified or registered mail as aforesaid to
(w) Xxxxxxx Xxxxx & Co., Inc., Corporate Law Department, World
Financial Center, 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000-0000, Attention: Xxxxxxx Safer, Esq., and (x) Xxxxxxx Xxxxx &
Co., Inc., World Financial Center, 000 Xxxxxxx Xxxxxx, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000-0000, Attention: Director, Headquarters
Real
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Estate, (y) Xxxxxxxx & Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Xxxxx X. Black III, Esq., and/or (z) such
other addressee(s) as Tenant and Merrill may from time to time
designate by Notice given to Landlord by personal delivery of
certified or registered mail as aforesaid, except that at no time
shall Landlord be required to give, in the aggregate, more than five
(5) Notices or copies thereof."
(l) Tenant hereby waives all rights it may have (including, without
limitation, any right it may have to receive a Conveyance Notice or to
have Landlord (or the owner of the applicable Interest) negotiate and/or
enter into a Sale and Purchase Agreement in connection therewith), if any,
in connection with (i) the Conveyance of the lessee's interest in
Severance Lease B and/or the landlord's interest in Lease B by O&Y to
Landlord, (ii) the Conveyance of any Interests that may be effectuated
pursuant to the First Amended Joint Plan of Reorganization of Olympia &
York Tower B Company and Olympia & York World Financial Center Finance
Corp. dated July 26, 1996, as amended to date, and pursuant to the Second
Amended Joint Plan of Reorganization of Olympia & York Realty Corp., et
al., dated August 9, 1996, as amended to date, including, without
limitation, in connection with the financing occurring on the date of this
Agreement, or (iii) any Conveyance of an Interest or Interests to the then
holder of that certain Zero Coupon Note, dated the date of this Agreement,
made by WFP Tower B Co. L.P. in favor of TBR Finance Inc. in the face
principal amount of $150,000,000 (the "Zero Coupon Note") or some or all
of the beneficial holders thereof (including the beneficial holders of the
notes issued pursuant to a certain Trust Indenture, dated as of November
21, 1996, between TBR Finance Inc., as issuer, and Marine Midland Bank, as
trustee), or any of their successors, assigns or designees, where such
Conveyance is in connection with (or effectuates) the repayment of said
Zero Coupon Note. Without limiting the provisions of Sections 44.03, 44.04
or 44.07 of Original Lease B, for the avoidance of doubt the parties
confirm that upon any Conveyance described in clause (iii) above, the
Interests governed thereby shall no longer be subject to the terms of
Article 44 of Original Lease B and they may thereafter be Conveyed without
any requirement to deliver a Conveyance Notice and free of any obligation
to negotiate and/or enter into a Sale and Purchase Agreement or any other
right of Tenant under Article 44 of Original Lease B in connection
therewith. The reference in Section 44.01(a)(iv) of Original Lease B to
"the originally named Landlord (Olympia & York Tower B Company)" shall be
deemed a reference to "WFP Tower B Co. L.P." References in Section
44.04(a)(i) of Original Lease B to Exhibit "P-1" and Exhibit "P-2" shall
be deemed references to Exhibit "O-1" and Exhibit "O-2" respectively. The
provisions of Section 44.10 of Original Lease B are hereby deleted in
their entirety.
3. Miscellaneous. (a) Except as specifically provided herein, nothing
contained in this Agreement shall be deemed to modify in any respect the terms,
provisions or conditions of Lease B, and such terms, provisions and conditions
are hereby ratified and shall remain in full force and effect as modified
hereby.
(b) If there is any inconsistency between the terms of this
Agreement and the terms of Lease B, the terms of this Agreement shall govern and
be controlling.
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(c) This Agreement contains the sole and entire understanding and
agreement of the parties with respect to its entire subject matter and all prior
negotiations, discussions, representations, agreements, and understandings
heretofore had among the parties with respect thereto are merged herein.
(d) This Agreement may be executed in duplicate counterparts, each
of which shall be deemed an original and all of which, when taken together,
shall constitute one and the same instrument.
(e) This Agreement shall bind and inure to the benefit of the
parties hereto and their respective successors and permitted assigns under Lease
B.
4. Reaffirmation of Guaranty. By its execution of this Agreement, Merrill
hereby confirms that its obligations under the Guaranty are hereby ratified and
shall remain and continue in full force and effect with respect to Lease B, as
modified by this Agreement.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Agreement as of
the date first above written.
LANDLORD: WFP TOWER B CO. L.P.
By: WFP Tower B Co. G.P. Corp., general partner
By: ____________________________________
Name:
Title:
TENANT: XXXXXXX XXXXX/WFC/L, INC.
By:___________________________________
Name:
Title:
The undersigned agrees to be bound
by the provisions of Section 4 of the
foregoing Agreement:
XXXXXXX XXXXX & CO., INC.
By:________________________________
Name:
Title:
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EXHIBIT A
[TO MATCH THE PRINCIPAL AMOUNT AND AMORTIZATION SCHEDULE OF THE REFINANCED LOAN
TO ENCUMBER TOWER B WHICH SHALL BE SELF AMORTIZING OVER ORIGINAL TERM OF LEASE
B]
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