Exhibit (iv)
AGREEMENT OF LEASE
between
NARK(S FUNDING COMPANY, LLC,
as Landlord and
DUPONT SECURITIES GROUP, INC.
as Tenant
Dated:
September , 1999
Premises:
Entire Rentable Portion of Suite 1100-26 on the 00xx Xxxxx
00 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx, 00000
Nksfndg. dupont. securities.9.7.99
TABLE OF CONTENTS
Page
ARTICLE 1 BASIC LEASE INFORMA TENANT DEFINITIONS8
1.01 Basic Lease Information
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1.02 Oilier Definitions
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ARTICLE 2 PREMISES; TERM9
2.01 Demise
2.02 Term 10
2.03 Deli very of demised Premises 10
2.0 3 USE; CONDUCT OF BUSINESS10
3.01 Use 10
No Nuisance 11
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3.03 Deliver Restrictions 11
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3.04 Permits 11
-------
3.05 Environmental 12
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ARTICLE 4RENT12
4.01 GrossRent
4.02 Base Rent 12
---- ----
4.03 Manner ofPavment 12
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4.04 Illegality 13
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4.05 Occupancy and Transfer Taxes 13
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ARTICLES ADDITIONAL CHARGES13
5.01 Definitions 13
5.02 Tenant's Tax Payment 14
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5.03 Landlord's Statements 14
5.04 Survival 14
ARTICLE 6 TENANT ELECTRICITY 15
6.01 Supvlv of electricity 15
ARTICLE 7SERVICESANDREPAIRS 17
7.01 Standard of Operation: Landlord Services 17
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7.02 Access 17
7.03 Cleaning 18
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7.04 Service Interruption 18
ARTICLE 8ALTERATIONS18
8.01 Landlord's Work 18
8.02 Alterations 19
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8.03 Tenant's Property 20
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8.04 Effect of landlord's APPROVAL 21
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8.05 Survival 21
Nks~dg.dupont.securities.9.7.99
Page 21
ARTICLE 9REPAIRS 21
9.01 Repairs by Landlord
9.02 Repairs by Tenant 21
.22
9.03 Changes in Facilities
9.04 Landlord Access
ARTICLE 10 COMPLIANCE WITH LA WS
10.01 Compliance with Laws by Tenant
22
..22
ARTICLE 11 RIGHT TO PERFORM TENANT COVENANTS
11.01 Right to Perform Tenant Covenants
ARTICLE 12 ASSIGNMENT, MORTGAGING AND SUBLETTING22
12.01 Assignment: Etc 22
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23
... 24
12.02 Assi~nment and Subletting Procedures
12.03 Additional Subleasing ConditionS
25
12.04 Mortgagin~
ARTICLE l3SUBORDINATION/ATTORNMENT25
25
26
13.01 Subordination
13.02 Attomment
.. .27
13.03 Right to Cure 27
27
ARTICLE 14 BANKRUPTCY; CONDITIONS OF LIMITATION
14.OlBankruptcv .28
14.02 Default 29
14.03 Intentional Default
..... 29
14.04 Re-entrv bv Landlord . 29
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14.05 Damages 30
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14.06 Right to Iniunction 30
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14.07 Other Remedies 30
----- --------
... .31
14.08 Certain Waivers
14.09 No Waiver31
14.l0Attornevs'Fees 31
14.11 Late Payments 1
ARTICLE 15 QUIET ENJOYMENT 31
15.01 Ouiet Enjoyment 32
ARTICLE 16 RULES OF THE BUILDING 32
16.01 Building Rules32
16.02 Graphics
-3-
~~~ffldg.dupont.securities.9.7.99
Page
ARHCLE17INSURANCE32
17.01 ComDliance with Insurance Standards 32
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17.02 Landlord Insurance 32
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17.03 Tenant Insurance 32
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17.04 Waiver ofSubrogation 33
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17.05 Policy Reauirements 33
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ARTICLE 18 NONLIABILITY AND INDEMNIFICATION34
18.OlExculDation 34
18.02 Indemnity 34
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18.03 Limitation ofLandlord's Personal Liability 35
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ARTICLE 19 CONDEMNATION35
19.01 Condemnation 35
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ARTICLE2O CASUALTY36
20.01 Casualty 36
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20.02 Landlord Ri~ht to Terminate 36
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20.03 Disclaimer 36
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20.04RPL~227 36
20.05 CooDeration 36
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ARHCLE 21 SURRENDER37
21.01 Surrender 37
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21.02 Holding-Over 37
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ARTICLE 22 ESTOPPEL CERTIFICATES38
22.01 EstopDel Certificates 38
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ARTICLE 23 INTENTIONALLYDELETED38
ARTICLE 24 AIR CONDITIONING MAINTENANCE38
24.01 Air Conditioning Maintenance 38
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ARTICLE 00 XXXXX XXXXXXXXX ECONOMIC REVITALIZATION PLAN39
25.01 Landlord's Cooveration39
ARTICLE 26 PARTIES BOUND40
26.01 Successors and Assigns 40
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26.02 Present Landlord 40
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26.03 No Otfer 40
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26.04 Inability to Perform 40
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26.05 Waiver ofCounterclaims and Jury Trial 40
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26.06 Notices 41
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Nksfndg.dupont.sccurities.9.7.99 -4-
Page
26.07 Severability 41
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26.08 Amendments 41
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26.O9No Joint Venture 41
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26.10 Brokers 41
-------
26.11 Merger 42
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26.12 ApDlicable Law 42
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26.13 Shoring: No Dedication 42
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26.14 Notice ofOccurrences 42
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26.15 Vaults 42
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26.16 Window Cleaning 42
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26.17 Windows 42
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26.18 Consents and ADDrovals 42
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26.19 DeveloDment Rights 43
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26.20 Business Hours 44
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26.21 Confidentiality 44
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26.22 Exhibits 44
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26.23 No Recordin~ ofLease 44
-- --------- -------
ARTICLE 27 SECURITY44
27.01 Security 44
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Nksfndg.dupontsecuritie~.9.7.99 -5-
EXHIBITS
A Plan of Demised Premises
B Intentionally Deleted
C Cleaning Specification
D Building Rules and Regulations
E Guaranty
Nksfildg.dupont.seGurities,9,7,99 -6-
Addendum
INDEX OF DEFINED TERMS
Definition Where Defined
---------- ----- -------
Additional Charges Section 4.01
Alterations Section 8.02
Bankruptcy Code Section 14.01
Base Rent Section 4.02
Brokers Section 1.01
Building Section 1.01
B~ding Systems Section 8.02
Business Days Section 26.20
Business Hours Section 26.20
Commencement Date Section 1.01
Common Areas Section 2.01
Consent Section 26.18
Expiration Date Section 1.01
Force Majeure Section 26.04
Gross Rent Section 4.01
Hazardous Materials Section 3.06
Holidays Section 26.20
Land Section 1.01
Landlord Section 1.01
Landlord Services Section 7.01
Landlord Statement Section 5.01
Landlord's Agents Section 9.02
Landlord's Contribution Section 8.01
Landlord's Work Section 2.03
Lease Commencement Section 1.01
Legal Requirements Section 10.01
Payment Dates Section 5.02
Premises Section 1.01
Qualified Alteration Section 8.02
Real Estate Taxes Section 5.01
Rent Commencement Section 4.02
Senior Interest Holder Section 13.02
Stipulated Rate Section 4.03
Subordinated Mortgage Section 13.01
Successor Landlord Section 13.02
Tenant Section 1.01
Tenant's Agents Section 9.01
Tenant's Property Section 8.03
Tenant's Tax Payment Section 5.02
Term Section 1.01
Nksfndg.dupont.secunties.9.7.99 -7-
AGREEMENT OF LEASE
This AGREEMENT OF LEASE, dated as of August___,1999 (this
"Lease"), is entered into between Landlord and Tenant, identified and defined
below.
The parties to this Lease hereby agree with each other as follows:
ARTICLE 1 BASIC LEASE INFORMATION AND DEFINITIONS 1.01 Basic Lease
Information. The following sets forth the basic data with respect to this
------------------------ Lease and constitute the definitions of the terms used
throughout this Lease: Defined Term: Basic Information and Definition: Landlord:
Narkis Funding Company, LLC
Landlord's Address c/o Cammeby's Management Company, LLC
for Notices: 00 Xxxxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Tenant: Dupont Securities Group, Inc.
Tenant's Address 00 Xxxxxxxx, Xxxxx 0000-00
for Notices: Xxx Xxxx, Xxx Xxxx 00000
Attention:
Building: The building having the street address of 00 Xxxxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Premises: Suite 1100-26 (substantially as identified on the floor
plan annexed hereto as Exhibit "A".
Term: Ten (10) Years, Four (4) Months
Commencement Date: Upon substantial completion of the Initial
Alterations (see Section 2.03).
Expiration Date: Ten (10) years, four (4) months affer the
Commencement Date, unless sooner terminated in accordance with the
terms and conditions of this Lease, and subject to the provisions of
Section 2.02 and Article 26 ---------------------------------------
---------------------------
Nksfndg.dupont.secnnties~9.7.99 -8-
Base Rent: $150,500.00
$ 158,620.00
$ 163,378.60
$ 168,279.96
$ 173,328.36
$ 185,738.21
$ 191,310.35
$ 197,049.66
$202,961.15
$ 209,049.99
$215,321.49
For the 1st year of the term For the 2nd year of the term For the 3rd year of
the term For the 4th year of the term For the 5th year of the term For the 6th
year of the term For the 7th year of the term For the 8th year of the term For
the 9th year of the term For the 10th year of the term For the 11th year of the
term
Rent Concession: Four (4) months, 1st, 2nd, 13th and 14th
installments of Annual Base Rent if Tenant is not otherwise in
default.
Electric: $19,250.00 per annum ($1,604.17 per month) [see Section
6.01]. ----------------------------------- -------------------------
Tenants Tax share: 2.1%
Base Tax Year: 1999/2000
Security Deposit: $68,329.40 [see Section 27.01]
Broker(s): The Xxxxxxxx Group, LLC, Xxxxx Xxxxx
Anything contained herein to the contrary notwithstanding, in the
event any of the foregoing items of Basic Lease Information and
Definitions conflicts with any other provision(s) set forth elsewhere
in this Lease, the other provision(s) shall govern.
1.02 Other Definitions. Set forth on the Addendum attached
immediately behind the Table of Contents at the front of this Lease,
is an index of additional terms used in this Lease. Such terms shall
have the respective meanings specified in the Sections of this Lease
set forth after such terms; provided, however, that the failure to
list on said Addendum any term used in this Lease shall not affect in
any way the use of a defined term in this Lease, and any terms defined
in this Lease and used herein shall have the meaning so defined. In
addition, unless the context of this Agreement clearly requires
otherwise, references to the plural include the singular, references
to the singular include the plural, the term "including" is not
limiting and shall mean "including. without limitation ""including
without being limited to." and words of like import, and the term "or"
has, except where otherwise indicated, the inclusive meaning
represented by the phrase "and/or." The words "hereof." "herein
"hereby. " "hereunder. " and similar terms in this Agreement refer to
this Agreement as a whole and not to any particular provision of this
Agreement. Section, subsection, clause, schedule, and exhibit
references are to this Agreement unless otherwise specified. Any
reference in this Agreement to this Agreement shall include all
alterations, amendments, changes, extensions, modifications, renewals,
replacements, substitutions, and supplements, thereto and thereof, as
applicable.
ARTICLE 2 PREMISES; TERM 2.01 Demise. (a) Landlord hereby leases
to Tenant and Tenant hereby hires from Landlord,
------- subject to the covenants and agreements contained in this
Lease, the Premises, to as shall be delivered to Tenant in accordance
with Section 2.03(a).
(b) Tenant shall have, as an appurtenance to the Premises, the
nonexclusive right to use, and permit its employees and invitees to
use, in common with others the common areas of the Building, and if
the portion of the Nksfndg.dupont.securities.9.7.99 -9- Premises on
any floor includes less than the entire floor, the common toilets,
corridors and elevator lobby on such floor (collectively, the
"CommonAreas"); but such rights shall always be subject to (i) the
rights of Landlord; and (ii) such rules and regulations from time to
time established by Landlord pursuant to Section 16.01.
2.02 Term. (a) The term of this Lease shall commence on the
Commencement Date, as defined herein, and unless sooner terminated as
herein provided, shall terminate on the Expiration Date, unless sooner
terminated as herein provided.
(b) If Landlord, for any reason whatsoever, is unable to deliver
possession of all or any portion of the Premises to Tenant on the
Commencement Date or on any other date, except as hereinafter
provided, neither this Lease nor any of the terms of this Lease shall
be affected thereby nor shall the Term be extended and Landlord shall
have no liability to Tenant in respect thereof. Tenant hereby waives
any right to recover damages which may result from Landlord's
inability to deliver possession of the Premises on the Commencement
Date or on any other date.
2.03 Deliverv ofPremises: Commencement Date. (a) Tenant agrees
that, except as expressly provided herein, (i) it enters into this
Lease without any representations, warranties or promises by Landlord,
its agents, representatives, employees, servants or any other person
in respect of the Building or the Premises, (ii) no rights, easements
or licenses are acquired by Tenant by implication or otherwise and
(iii) Tenant will accept the Premises on the Commencement Date "AS IS"
in the condition existing on that date, provided Landlord has
substantially completed the Initial Alterations as provided in Exhibit
"B" attached hereto, and the taking of occupancy of the whole or any
part of the Premises by Tenant shall be (A) conclusive evidence, as
against Tenant, that Tenant accepts possession of the same and that
the Premises so occupied and the Building equipment servicing the
Premises, were in good and satisfactory condition at the time such
occupancy was so taken, and (B) deemed to be a representation by
Tenant that the Premises are in the condition agreed to by Landlord
and Tenant for commencement of the Term hereof. Thereafter, Landlord
shall have no obligation to do any further work in order to make the
Premises suitable and ready for occupancy and use by Tenant, excepting
any minor Punch List items. Any work to be performed by Tenant shall
be subject to compliance with the terms and conditions of this Lease.
Landlord and Tenant shall immediately upon substantial completion of
the Initial Alteration by Landlord both execute a writing
acknowledging the Commencement Date (the "Commencement Date
Agreement"). Notwithstanding anything to the contrary contained
herein, the term of the Lease shall commence on the Commencement Date
as defined herein, which date shall be acknowledged in the
Commencement Date Agreement by Landlord and Tenant.
(b) The parties hereto agree that this Article 2 constitutes an
express provision as to conditions under which Landlord shall deliver
possession of the Premises to Tenant, and Tenant hereby waives any
rights to rescind this Lease which Tenant might otherwise have
pursuant to Section 223-a of the Real Property Law of the State of New
York, or pursuant to any other law of like import now or hereafter in
force.
ARTICLE 3 USE; CONDUCT OF BUSINESS 3.01 Use. (a) Subject to the
remaining provisions of this Section 3.01, Tenant shall use and
---- occupy the Premises during the Term solely for executive,
administrative and sales offices for Tenant's financial services
business and for no other purposes.
(b) Tenant covenants and agrees that at all times the business to
be conducted at, through and from the Premises and the kind and
quality of services to be offered in the conduct thereof will be
first-class in every respect and will be in conformity with the
standards of practice consistent with first-class office buildings in
the Borough of Manhattan in the City of New York. In no event may the
Premises be used for any purposes in violation of the Certificate of
Occupancy for the Building or which are prohibited in the Rules and
Regulations or in any restrictive covenant at any time or from time to
time affecting the Building (at Tenant's request in
Nksfndgdupont.securjtje~.97,99 - 10- connection with any request for
consent in a change in use, Landlord will supply Tenant with any
applicable restrictive covenants).
3.02 No Nuisance. (a) Tenant shall not allow, suffer or permit
the Premises or any other portion of the Building including but not
limited to any of the Common Areas or any use thereof to constitute a
nuisance or interfere with the safety, comfort or enjoyment of the
Building by Landlord or any other occupants of the Building or their
customers, invitees or any others lawfully in, upon or about the
Building or its environs.
(b) Tenant and Tenant's agents, contractors, employees, licensees
and/or invitees shall not use the Building or its environs for the
display or sale of merchandise, for performances, for the installation
of a platform, stage, speakers, audio-visual equipment or equipment of
any sort for promotion or advertising or for any other purpose. Tenant
and Tenant's agents, contractors, employees, licensees and/or invitees
shall neither create nor permit noxious or oi~jectionabl~ odors,
fumes, smoke and/or vapors, within or without the Premises and the
Building of which they form a part. Further, Tenant shall take all
measures needed to prevent objectionable odors, fumes, smoke and
vapors, from emanating from the Premises and permeating any part of
the Building, whether inside or outside the Premises. (c) Tenant
recognizes that Landlord has a great interest in securing the Building
and its environs outside the Premises from the sounds and/or visual
effects and/or from odors, fumes, smoke and vapors which may result
from Tenant's operation of its business in the Premises. Accordingly,
the requirement set forth in subsections (1)) and (c) pertaining to
restricting sounds and/or visual effects and/or odors, fumes, smoke
and vapors is of the essence in this Lease and failure of the Tenant
to comply shall constitute a material breach of this Lease, entitling
Landlord to exercise all remedies provided hereunder, including
without limitation the right to terminate this Lease in accordance
with and subject to the provisions of Article 14. In addition to and
notwithstanding any other rights and remedies of Landlord under this
Lease, and without any grace periods, Landlord shall have the right,
in its sole discretion to require Tenant (i) to cease and desist all
activities in the Premises directly or indirectly resulting in a
violation of this Section 3.02 immediately upon notice of such
violation from Landlord, and (ii) to immediately cure such violation
at Tenant's expense.
3.03 Delivery Restrictions. (a) Landlord reserves the right to
regulate the activities of Tenant in regard to deliveries and
servicing of the Premises including without limitation, activities
associated with the freight entrance, freight elevator, and size, type
and location of delivery vehicles, and Tenant agrees to abide by the
Building Rules and Regulations set forth in Exhibit D attached hereto.
In addition, Tenant shall not use the building passenger elevators or
the Broadway and New Street pedestrian street entrances for deliveries
into or out of the Premises. Usage of the freight elevator shall be in
accordance with Section 7.01(d) hereof
(b) Tenant shall not use any elevators for loads in excess of the
elevator load capacities. Tenant shall obtain information regarding
the capacities of said elevators from Landlord. In the event Tenant
uses any Building elevator to transport a load in excess of that
elevator's capacity, and such use results in damage to the elevator,
including without limitation the mechanical and electrical systems
serving the elevator, Landlord shall repair such elevator and all
Landlord's costs and expenses incurred in connection with such repair
shall be payable to Landlord by Tenant as Additional Charges.
3.04 Permits. If any goverriment~~ license or any permit shall be
required for the proper and lawful conduct of Tenant's business or
that of any of its subtenants in the Premises and if failure to secure
such license or permit would in any way adversely affect Landlord or
the Building, then Tenant, at its expense, shall duly procure and
thereafter maintain such license or permit and submit the same to
Landlord for inspection. Tenant shall at all times comply with the
terms and conditions of each such license or permit. In no event shall
Tenant's failure to procure or maintain such license or permit relieve
Tenant from its obligations under this Lease.
- 11 - 3.05 Environmental. Throughout the Term, Tenant shall not
undertake or permit any Environmental Activity (as such term is
hereinafter defined) to be undertaken in the Premises or Building by
Tenant's employees, agents, contractors, invitees or guests other than
(i) in compliance with all applicable Legal Requirements (as such term
is hereinafter defined) and (ii) in such a manner as shall avoid any
liability on the part of Landlord and shall keep the Premises,
Building and Land free from any lien imposed pursuant to any Legal
Requirement in respect of such Environmental Activity. Tenant shall
take all necessary steps to ensure that any Environmental Activity
undertaken or permitted at the Premises is undertaken in a manner as
to provide prudent safeguards against potential risks to human health
or the environment. Tenant shall notiiy Landlord within 24 hours of
the release of any Hazardous Materials (as such term is hereinafter
defined) from or at the Premises which could form the basis of any
claim, demand or action by any party. Landlord shall have the right
from time to time to conduct an environmental audit of the Premises
and Tenant shall cooperate in the conduct of such environmental audit.
If Tenant shall breach the covenants provided in this Section, then,
in addition to any other rights and remedies which may be available to
Landlord under this Lease or otherwise at law, Landlord may require
Tenant to take all actions, or to reimburse Landlord for the costs of
any and all actions taken by Landlord, as are necessary or reasonably
appropriate to cure such breach. For purposes of this Section,
"Environmental Activity" means any use, storage, installation,
existence, release, threatened release, discharge, generation,
abatement, removal, disposal, handling or transportation from, under,
into or on the Premises of (A) any "hazardous substance" as defined in
ss. 101(14) of the Comprehensive Environmental Response, Compensation
and Liability Act, 42 U.S.C. ss. 9601(14), as amended; (B) any
"hazardous waste" as defined in ss. 26-1301(1) of the New York
Environmental Conservation Law; (C) asbestos or asbestos containing
materials, or PCBs; (D) petroleum, crude oil or any fraction thereof,
natural gas or synthetic gas used for fuel; and (E) any additional
substances or materials which at such time are hazardous or toxic
under the laws of the State of New York or any other Legal
Requirements (the materials described in clauses (A) through (E) above
are collectively referred to herein as "Hazardous Materials '9. The
obligations of Tenant under this Section 3.05 shall survive the
expiration or sooner termination of this Lease.
ARTICLE 4 RENT 4.01 Gross Rent. The "Gross Rent" shall consist of
(a) Base Rent and (b) additional charges ("Additional Charges '9
consisting of all other sums of money that shall become due from and
payable by Tenant to Landlord hereunder.
4.02 Base Rent. (a) The Base Rent shall be payable by Tenant in
twelve (12) equal monthly installments in advance on the first day of
each calendar month during the Term commencing on the "Rent
Commencement" (appropriately prorated in the case of the first
installment if the Rent Commencement is not the first day of the
month) and on the first day of each calendar month thereafter.
4.03 Manner ofPavment. (a) Tenant may pay the Gross Rent by
unendorsed check, subject to collection, payable to Landlord and drawn
on a New York City branch of a bank or trust company located in New
York City.
(b) Tenant covenants to pay all Gross Rent as the same shall
become due and payable under this Lease at the times and in the manner
provided herein without notice or demand and without set off,
abatement, deduction or counterclaim, except as expressly provided in
this Lease. Landlord shall have the same rights for default in the
payment of Additional Charges as for default in the payment of Base
Rent hereunder. If Tenant shall fail to pay any installment of Base
Rent or Additional Charges within ten (10) days of the due date,
Tenant shall pay interest thereon from the date when such Base Rent or
Additional Charges became due and payable to the date of Landlord's
receipt thereof at a rate per annum (the "Stipulated Rate") equal to
the lesser of (i) five percentage points (5%) above the rate from time
to time announced by Citibank, N.A. (or its successors or assigns) as
its "base rate" to be in effect at its principal office in New York,
New York or (ii) the maximum rate permitted by applicable law.
Nksfndg~dupont.securities.9.7.99 - 12 - 4.04 illegality. If any of the
Gross Rent payable hereunder shall be or become uncollectible, reduced
or required to be refunded because of any Legal Requirement, Tenant
shall enter into such agreements and take such other actions (without
additional expense to Tenant) as Landlord may reasonably request and
as may be legally permissible to permit Landlord, during the
continuance of such Legal Requirement, to collect the maximum rents as
may be legally collectible (and not in excess of the amounts reserved
therefor under this Lease). Upon the termination of such Legal
Requirement, (a) the Gross Rent shall become and thereafter be payable
in accordance with the amounts reserved herein and (b) Tenant shall
pay to Landlord upon demand, to the extent legally permissible, an
amount equal to (i) the Gross Rent which would have been paid pursuant
to this Lease but for such Legal Requirement less (ii) the rents and
payments in lieu of rent paid by Tenant during the period in which
such Legal Requirement was in effect.
4.05 OccuDancv and Transfer Taxes. Tenant shall pay to Landlord
upon demand any occupancy or transfer tax or tax in lieu thereof
related to Tenant's occupancy of the Premises or the execution of this
Lease if the same shall become payable by Landlord in the first
instance or is at any time required to be paid by Landlord.
ARTICLE S ADDITIONAL CHARGES 5.01 Definitions. In addition to the
definitions of terms set forth in Section 1.01, as used in
------------ this Lease:
"Base Rate" shall mean Rate in effect during the calendar year in
which this Lease is executed.
"Landlord's Statement" means a statement furnished by Landlord to
Tenant containing a computation of any Additional Charges due pursuant
to the provisions of this Article 5 and shall include a xxxx or
statement showing the amount of the Real Estate Taxes for the
Building, if Landlord has a copy thereof.
"Real Estate Taxes" means all real estate, ad valorem and
personal property taxes, assessments (special or otherwise), sewer and
water rents, rates and charges, transit taxes, county taxes and any
other governmental levies, impositions or charges of any nature,
whether general, special, ordinary, extraordinary, foreseen or
unforeseen, which may be or become payable by Landlord with respect
to, or be assessed, levied or imposed upon, all or any part of the
Building, and all expenses, including fees and disbursements of
counsel, experts and consultants, reasonably incurred by, or
reimbursable by, Landlord in connection with the assessment process or
any application for a reduction in the assessed valuation for the
Building or for a judicial review thereof. If due to a future change
in the method of taxation any franchise, income (other than an income
tax which is applicable to other parties in addition to Landlords of
real property), profit or other tax shall be levied against Landlord
in substitution in whole or in part for or in lieu of, or in lieu of
an increase in, any tax which would otherwise constitute a Real Estate
Tax, or a tax or excise shall be imposed upon or measured by rents,
such franchise, income, profit or other tax, or tax or excise imposed
upon or measured by rents, shall be deemed to be a Real Estate Tax for
the purposes hereof. If any assessment is due and payable over time,
Landlord shall elect to pay the same in installments over the longest
period permitted by law without incurring a penalty, and each such
installment and the interest thereon, if applicable, shall be deemed
to be a Real Estate Tax for the purposes hereof.
"Base Taxes" means the Real Estate Taxes with respect to the
Building for the Tax Year (as hereinbelow defined) July 1, 1999 to
June 30, 2000. Nksfndg. dupont. securitjcs.9.7.99 - 13 - "Tax Year"
means each period of twelve (12) months commencing on July 1st of each
year, or such other period of twelve (12) months as hereafter may be
adopted as the fiscal year for real estate tax purposes in the Borough
of Manhattan, that includes any part of the Term, with appropriate
adjustment in the event of any change in such fiscal year. 5.02
Tenant's Tax Payment. (a) If Real Estate Taxes for any Tax Year shall
exceed Base Taxes, Tenant shall pay as Additional Charges for each Tax
Year a sum ("Tenant's Tax Pavment'9 equal to Tenant's Tax Share (as
set forth in Section 1.01 hereof) of such excess.
(b) When Real Estate Taxes for a Tax Year have been determined,
Landlord shall deliver to Tenant a Landlord's Statement, setting forth
Tenant's Tax Payment for such Tax Year. Tenant shall remit payment for
any such Tenant's Tax payment within ten (10) days after the date of
Landlord's Statement.
(c) If there shall be any increase or decrease in Real Estate
Taxes for any Tax Year, whether during or after such Tax Year,
Landlord shall furnish to Tenant a revised Landlord's Statement for
such Tax Year, and Tenant's Tax Payment for such Tax Year shall be
adjusted. The amount of any overpayment by Tenant reflected in such
Landlord's Statement shall be paid to Tenant within thirty (30) days
after the rendering of such statement. The amount of any underpayment
reflected in such Landlord's Statement shall be paid by Tenant within
thirty (30) days after receipt of such Landlord's Statement.
(d) For purposes of this Lease, the amount of any decrease in
Real Estate Taxes for any Tax Year shall be reduced by the sum of (i)
all costs and expenses, including counsel fees, incurred by Landlord
in connection with such decrease (including, without limitation, costs
and expenses related to any application or proceeding brought by or on
behalf of Landlord) and (ii) all such costs and expenses incurred by
Landlord in connection with efforts to reduce Real Estate Taxes for
any other Tax Years (whether or not any reduction was actually
obtained) not theretofore recovered through tax refunds for such other
Tax Years or otherwise. Nothing herein contained shall obligate
Landlord to bring any application or proceeding seeking a reduction in
Real Estate Taxes or assessed valuation. Tenant, for itself and its
immediate and remote subtenants and successors in interest hereunder,
hereby waives, to the fullest extent permitted by applicable law, any
right Tenant may now or in the future have to protest or contest any
Real Estate Taxes or to bring any application or proceeding seeking a
reduction in Real Estate Taxes or assessed valuation or otherwise
challenging the determination thereof
(e) The benefit of any discount for the early payment or
prepayment of Real Estate Taxes shall accrue solely to the benefit of
Landlord and such discount shall not be subtracted from Real Estate
Taxes except to the extent Tenant shall have provided prior to the
date of such early payment or prepayment the ftinds for Tenant's Tax
Share thereof.
5.03 Landlord's Statements. Landlord's failure to render a
Landlord's Statement as provided in this Article 5 shall not prejudice
Landlord's right to thereafter render such a statement with respect to
such calendar year or Tax Year or any calendar year or Tax Year
thereafter. Each Landlord's Statement so delivered shall be conclusive
and binding upon Tenant unless Tenant notifies Landlord within twenty
(20) days after receipt thereof that it disputes the correctness of
such Landlord's Statement, specifying to the extent then practical the
particular respects in which the same is claimed to be incorrect, and
notwithstanding such claim shall pay the Additional Charges in
accordance with such Landlord's Statement, without prejudice to
Tenant's position. Thereafter if the claim is resolved in Tenant's
favor, Tenant shall be entitled to a credit for the decreased amount.
5.04 SurvivaL The obligations of Landlord and Tenant under this
Article 5 shall survive the expiration or Sooner termination of this
Lease.
afforded to Tenant immediately above shall apply only to access
by persons (i.e. no freight of any type or nature whatsoever) (except
as specifically provided in Section 7.01(d) hereof).
7.03 Cleanin~ (a) Provided Tenant is not in monetary default
after any applicable grace and cure periods provided herein, under any
of the covenants of this Lease-, Landlord shall provide cleaning
service for the Premises on Business Days at Landlord's expense.
Specifications regarding the aforementioned cleaning service are set
forth in Exhibit "C" annexed hereto and made a part hereof.
(b) Landlord's cleaning contractor and its employees shall have
access to the Premises, and the use of Tenant's light, power and water
therein at Tenant's cost and expense, at all times, except that such
access shall not be made in a manner which would unreasonably
interfere with the operation of Tenant's business. If Tenant shall not
provide access to the Premises, then and in such event Landlord and/or
its cleaning contractor shall be under no obligation whatsoever to
provide cleaning service of any type or nature whatsoever.
(c) Landlord shall have the right to cause any area in the
Premises to be exterminated for vermin by a reputable extermination
contractor selected by Landlord with such frequency as shall be
reasonably satisfactory to Landlord, and Tenant shall pay the cost
thereof to Landlord within ten (10) days after demand. Tenant shall
pay to Landlord within ten (10) days after demand Landlord's then
reasonably established charges for (i) cleaning work in the Premises
or the Building required because of (1) misuse or neglect on the part
of Tenant or Tenant's agents, contractors, employees, licensees or
invitees, (2) use of portions of the Premises for the storage,
preparation, service or consumption of food or beverages (other than
pantries), reproduction, data processing or computer operations, or
other special purposes requiring greater or more difficult cleaning
work than office areas, (3) interior glass surfaces (except the
interiors of exterior Building windows), or (4) increases in frequency
or scope in any of the items of cleaning service requested by Tenant;
(ii) removal from the Premises and the Building of (x) so much reflise
and rubbish of Tenant as shall exceed that normally accumulated in the
daily routine of ordinary business office occupancy and (y) all of the
refuse and rubbish of any eating facilities requiring special
handling; and (iii) cleaning work in the Premises or the Building
occasioned by after hours use of the Premises.
7.04 Service Interruption. (a) Subject to Section 26.04(b),
Landlord shall not be liable for damages to either person or property
nor shall Landlord be deemed to have evicted Tenant nor shall there be
any abatement of Gross Rent nor shall Tenant be relieved from
performance of any covenant on its part to be performed hereunder by
reason of (i) failure by Landlord to furnish Landlord Services due to
Force Majeure, (ii) breakdown of equipment or machinery utilized in
supplying any Landlord Service or (iii) cessation of any Building
Service due to causes or circumstances beyond the boundaries of the
Land. Landlord shall use reasonable diligence, consistent with
customary industry practice, to make such repairs as may be required
to machinery or equipment within the Building to provide restoration
of any Building Service and, where the cessation or interruption of
such Building Service has occurred due to circumstances or conditions
beyond the Land boundaries, to cause the same to be restored by
diligent application or request to the provider.
(b) In addition to any remedies which Landlord may have under
this Lease, if Tenant shall default in the payment of any Additional
Charges payable pursuant to this Article 7 in respect of additional or
overtime services provided by Landlord, then, for so long as such
default remains uncured, Landlord shall not be obligated to furnish
Tenant any additional or overtime services.
ARTICLE 8
ALTERATIONS
8.01 7nitial Alterations. (a) Landlord shall prepare plans and
specifications relating to construction of Tenant's initial leasehold
improvements ('7nitial Alterations') in the Premises in accordance
with the terms, provisions and time periods set forth in Exhibit B.
Nksftidg.dupo~t.securi~e,.9.7.99
- 18 -
(b) Landlord shall cause all of the Initial Alterations to be
constructed in accordance with Exhibit B. All Initial Alterations as
provided in Exhibit B shall be constructed at Landlord's sole cost and
expense, except as otherwise provided in Exhibit B for items which do
not comply with the building standards for the Initial Alterations.
8.02 Alterations. (a) Tenant shall not make or allow to be made
any alterations or physical additions, including, without limitation,
fixtures, to the Premises other than normal painting, carpeting,
wall-coverings and office decorations ("Alterations')1 or place safes,
vaults, filing systems, libraries or other heavy fi'niiture or
equipment within the Premises without first obtaining the consent of
Landlord, which consent shall not be unreasonably withheld in the case
of an Alteration which (i) has no adverse effect on the Building's
structure or systems, including, without limitation, the mechanical,
electrical, plumbing, HVAC, fire safety, fire protection or elevator
systems of the Building (collectively, "Building Systems'9; (ii) is
not visible from the exterior of the Premises; (iii) does not result
in a violation of; or require a change in, any certificate of
occupancy for the Building; (iv) does not affect any area of the
Building outside of the Premises; (v) does not adversely affect the
curtain wall of the Building; (vi) does not affect the gross area of
the Premises other than to a ~ minimis extent; and (vii) does not, in
Landlord's sole judgment, adversely affect the character or value of
the Building.
(b) Landlord shall be entitled to retain independent consultants
to review the plans and specifications for and the progress of
construction of Alterations which will affect the Building systems and
to reimbursement from Tenant, within ten (10) days after request
therefor, for all of the fees of such consultants and other
out-of-pocket costs incurred by Landlord in connection with such
proposed Alteration. Tenant shall, prior to commencing any work in
the'Premises in connection with any Alteration, the nature of which
would under good construction industry practice or Legal Requirements
(as such term is hereinafter defined) involve the preparation of plans
and specifications, flimish Landlord with three (3) sets of complete
plans and specifications for such work. Landlord agrees to use
reasonable efforts, consistent with industry practice and the scope of
such proposed Alteration, to respond to Tenant's request for consent
to its plans and specifications for Alterations within (i) fifteen
(15) Business Days after submission thereof to Landlord in the case of
the original submission and (ii) ten (10) Business Days in the case of
any resubmission of disapproved plans. Landlord reserves the right to
disapprove any plans and specifications in part, to reserve approval
of items shown thereon pending its review and approval of other plans
and specifications, and to condition its approval upon Tenant making
revisions to the plans and specifications or supplying additional
information. Any Alterations for which consent has been received shall
be performed in accordance with plans and specifications approved by
Landlord, and no amendments or additions thereto shall be made without
the prior written consent of Landlord in each instance, which consent
shall be granted or withheld in accordance within the same time frames
in granting initial consent to the applicable Alterations.
(c) Tenant agrees that all Alterations shall at all times comply
with all Legal Requirements and any rules and regulations which
Landlord may adopt from time to time with respect to the making of
Alterations. Tenant, at its expense, shall (i) obtain all necessary
municipal and other governmental permits, authorizations, approvals
and certificates for the commencement and prosecution of such
Alterations and for final approval thereof upon completion, (ii)
deliver the originals thereof to Landlord and (iii) cause all
Alterations to be performed in a good and first-class workmanlike
manner, using new materials and equipment at least equal in quality to
a first-class office installation in a first-class office building
located in the Borough of Manhattan in the City of New York.
(d) Landlord or its agent, at Tenant's expense and upon request
of Tenant, shall execute any applications for any permits, approvals
or certificates required to be obtained by Tenant (wherein such
Landlord signature is required) in connection with any permitted
Alteration (provided that the provisions of the applicable Legal
Requirement require that Landlord execute such application) and shall
otherwise cooperate with Tenant in connection therewith, provided that
if Landlord shall incur any cost or liability in connection therewith,
Tenant shall reimburse Landlord for all such costs, expenses and
liabilities within ten (10) days after receipt of Landlord's invoice
therefor.
Nksfndg.duponL~ec~tie,~9.7.99
- 19 -
(e) Tenant agrees that all Alterations shall be promptly
commenced and completed and shall be performed at other than during
Business Hours of Business Days and then only in a manner so as not to
interfere with the occupancy of any other tenant or delay Landlord in
the construction, maintenance, cleaning, repair, safety, management,
security or operation of the Building or the space of any other tenant
in the Building, and if any additional expense shall be incurred by
Landlord as a result of Tenant's making of any Alterations, Tenant
shall pay such additional expense within ten (10) days after demand
therefor.
(i) No Alterations shall be constructed (i) except under the
supervision of a licensed architect or licensed professional engineer
reasonably satisfactory to Landlord and (ii) in the event of an
Alteration in excess of $50,000.00 prior to Tenant delivering to
Landlord either (y) a performance bond and a labor and materials
payment bond (issued by a surety company reasonably satisfactory to
Landlord and licensed to do business in the State of New York) each in
an amount equal to one hundred twenty-five percent (125%) of such
estimated cost and otherwise in form satisfactory to Landlord or (z)
such other security as shall be satisfactory to Landlord.
(g) All contractors retained by Tenant shall be subject to the
prior written approval of Landlord. Tenant shall not permit the use of
any contractors, labor, material or equipment in the performance of
any work if such use, in Landlord's sole judgment, will disturb
harmony with any trade engaged in performing any other work in and
about the Building or contribute to any labor dispute. Landlord may
require the use of designated Building Engineers or Contractors for
specified work which will or may affect any Building Systems.
(h) Tenant shall indemniiy and hold Landlord harmless from and
against all customary costs (including, without limitation, attorneys'
fees and disbursements), losses, liabilities or causes of action
arising out of or relating to any Alteration, including, without
limitation, any mechanics' or materialmen's liens asserted in
connection with such Alteration.
(i) Should any mechanics' or other liens be filed against the
Building or any portion of the Building by reason of Tenant's acts or
omissions or because of a claim against Tenant, Tenant shall cause the
same to be canceled or discharged of record by bond or otherwise
within twenty (20) Business Days after notice from Landlord. Any such
failure by Tenant to cancel or discharge said lien or liens within
said twenty (20) Business Day period shall constitute a material
default under this Lease, whereupon Landlord may cancel or discharge
the same and upon Landlord's demand Tenant shall reimburse Landlord on
demand for all reasonable costs (including, without limitation, legal
fees and expenses) incurred in canceling or discharging such liens.
(1) Throughout the making of all Alterations, Tenant, at its
expense, shall carry or cause to be carried all such forms of
insurance as set forth in Exhibit D attached hereto, including but not
limited to (i) worker's compensation insurance in statutory limits
covering all persons employed in connection with such Alterations,
(ii) builder's risk property insurance, completed value form, covering
all physical loss (including any loss of or damage to supplies,
machinery and equipment) in connection with the making of such
Alterations and (iii) commercial general liability insurance, with
completed operations endorsement, covering any occurrence in or about
the Building in connection with such Alterations, which comprehensive
liability insurance policy shall satisiy the requirements of Sections
17.03 and 17.05. Tenant shall be obligated to frirnish Landlord with
evidence reasonably satisfactory to Landlord that such insurance is in
effect before the commencement of such Alterations and, on request, at
reasonable intervals thereafter.
8.03 Tenant's ProDerty. Subject to Section 21.01 hereof; all
Alterations shall be and remain part of the Premises and be deemed the
property of Landlord except such trade fixtures, frirniture and
equipment as are installed at the expense of Tenant and which may be
removed without material damage to the Premises (c9llectively,
"Tenant's Property"). Tenant may remove Tenant's Property from the
Premises during the Term and Tenant shall repair any and all damage to
the Premises or the Building occasioned by such removal. Any
structural repairs or repairs to Building Systems necessitated by the
removal of Tenant's Property shall be performed by Landlord and Tenant
shall pay at its sole cost and expense for the cost thereof within ten
(10) days after demand by Landlord.
Nksfiid(pound).dupont.securitie5.9.7.99 - 20 -
8.04 ~ct ofLandiord's ADDroYaI. Landlord's review and/or approval
of plans or specifications or consent to the making of Alterations in
the Premises shall not be deemed to be (i) an agreement by Landlord
that the contemplated Alterations comply with any Legal Requirements,
or the certificate of occupancy for the Building; (ii) an approval of
the sufficiency, completeness or any other aspect of the proposed
Alteration; or (iii) a waiver by Landlord of compliance by Tenant with
any of the other terms of this Lease and any other agreements or other
documents relating thereto.
8.05 VP~ioi~~l~flJ termination of this Lease. Tenant's
obligations under this Article 8 shall survive the expiration or
sooner
ARTICLE 9
REPAIRS
9.01 Repairs bv Landlord. Landlord shall make all repairs,
interior or exterior, structural or non-structural, ordinary or
extraordinary, consistent with industry standards, to keep the
Building (including the Premises and the Building systems) in
reasonably good order and repair, excluding, however, repairs which
Tenant is obligated to make pursuant to Section 9.02 or the other
terms of this Lease. No liability of Landlord to Tenant shall accrue
under this Section 9.01 with respect to any repair within the Premises
or to any Building System servicing the Premises unless and until
Tenant has given notice to Landlord of the specific repair required to
be made or of the failure properly to flirnish any Landlord's Services
and Landlord's failure, subject to Force Majeure, thereafter promptly
to remedy the same. Notwithstanding anything to the contrary contained
herein, Landlord shall provided the air conditioning system servicing
the Premises in working order on the Commencement of this Lease.
9.02 Repairs bv Tenani. Tenant, at its expense, shall take good
care of and maintain the Premises, including, without limitation, (a)
the Initial Alterations and any Alterations, Q') the package air
conditioning unit(s) and the intemal air distribution system located
in and serving the Premises, (c) the internal electrical system
located in and servicing the Premises, (d) all plumbing fixtures and
lines located in and serving the Premises, (e) the life safety and
emergency power and/or any other systems to the point at which same
join the main vertical risers for the Building and (f) Tenant's
Property; provided, however, that Tenant shall only be responsible for
exterior or structural repairs or other repairs if the need for same
arises out of (i) the making, installation, use, operation or
existence of Alterations by or on behalf of Tenant, (ii) the moving of
Tenant's Property and/or other materials, supplies, etc. in or out of
the Building or the Premises, (iii) the negligence or wilful
misconduct of Tenant or any other occupant of the Premises or any of
Tenant's employees, contractors, agents, licensees or invitees or
their manner of use or occupancy of the Premises, subject, however, in
the case of fire or other insured casualty, to the waiver set forth in
Section 17.04, or (iv) Tenant's compliance or noncompliance with Legal
Requirements in accordance with Section 10.01. Any repairs to the
Building or Building Systems (including those elements of the Building
Systems described in clauses (a) through (e) above) shall be performed
by Landlord at Tenant's expense (including a supervisory charge, in
addition to charges for general conditions, equal to ten percent (10%)
of the trade cost of such repairs and any other costs incurred by
Landlord), unless Landlord elects by notice to Tenant to have Tenant
perform such repairs at Tenant's sole cost and expense. Tenant shall
promptly notiiy Landlord of the need for structural repairs, repairs
to the exterior (including exterior glass) of the Building, and/or
repairs to any Building Systems which are the responsibility of
Tenant. Landlord shall be responsible to make repairs which are
required as a result of Landlord or Landlord's employees
(collectively, "Landlord's Agents").
9.03 Changes in Facilities. Landlord reserves the right, at any
time and without any liability to Tenant, to make changes in or
additions to the Building, including, without limitation, any changes
to the Common Areas, as it may deem necessary or desirable provided
that (a) any such change does not deprive Tenant of any access to the
Premises. Landlord may install and maintain pipes, fans, ducts,
shafts, wires and conduits within, adjacent and/or through (as the
case may be) the walls, floors or ceilings of the Premises. Landlord
shall use reasonable efforts to minimize interference with Tenant's
use and occupancy thereof as a result of such installation and
maintenance. Xxxxxxxx.xxxxxx.,ectirjtiCs.9.7.99
-21 -
9.04 Lan dlordAcces.~. Except as provided for in Section 7.03,
Landlord and Landlord's Agents shall have the right Q'ut shall not be
obligated to) to enter the Premises in any emergency at any time, and,
at other reasonable times upon notice to Tenant to examine same or to
inspect, clean or perform such work as Landlord may reasonably deem
necessary or to exhibit the Premises to prospective purchasers,
mortgagees or tenants, or for any other purpose as Landlord may deem
necessary or desirable. Landlord shall use reasonable efforts to
minimize the adverse effect on Tenant of any entry by Landlord on the
Premises for any reason. Tenant shall not be entitled to any abatement
or reduction of Gross Rent by reason of such entry. For the purposes
herein, such notice shall be given at the premises to the person in
charge of the Premises for Tenant.
ARTICLE 10
COMPLIANCE WITH LAWS
10.01 Compliance with Laws bv Tenant. Tenant, at its expense,
shall comply with all (a) laws and ordinances and all rules, orders or
regulations (1'resent, future, ordinary, extraordinary, foreseen or
unforeseen) of any government~~ authority or of any insurer with
respect to the Property, and (b) covenants, conditions, restrictions,
easements and encumbrance affecting the Property (collectively, "Legal
Requiremen~5 "), at any time duly issued and in force, affecting or
related to the Premises or any part thereof; and Tenant shall make all
improvements (subject to the terms and conditions of Article 8 hereof)
which (a) are necessitated by a condition which has been created by,
or at the instance of; Tenant (including, without being limited to,
any Alterations), (b) are attributable to the use, or manner of use of
the Premises, (c) are necessitated by reason of a breach of Tenant's
obligations hereunder, or (d) are occasioned, in whole or in part, by
any act or omission of Tenant or Tenant's Agents, or any approved
subtenant, assignee claiming by, through or under Tenant.
ARTICLE 11
RIGHT TO PERFORjj~ TENANT COVENANTS
11.01 Right to Perform Tenant Coyenants. If Tenant shall fail to
perform any of its obligations under this Lease, Landlord may perform
the same at the expense of Tenant (a) immediately and without notice
in the case of emergency or in case such failure unreasonably
interferes with the use of Space by any other tenant in the Building
or with the provision of Landlord's Services or may result in a
violation of any Legal Requiremen~ and ~) in any other case if such
failure continues after ten (10) days from the date of the giving by
Landlord to Tenant of notice of Landlord's intention so to perform the
same. Tenant's obligations under this Section shall survive the
expiration or sooner termination of this Lease.
ARTICLE 12
ASSIGNMENT MORTGAGING AND SUBLETTING
12.01 Assignment Etc. Subject to the terms and procedures set
forth in Section 12.02, neither this Lease nor the term and estate
hereby granted, nor any part hereof or thereof; shall be assigned or
otherwise transferred, and neither the Premises nor any part thereof
shall be subleased or be encumbered in any manner by reason of any act
or omission on the part of Tenant without the prior consent of
Landlord, which consent shall not be unreasonably withheld or delayed.
Transfer of a controlling interest in the stock or other ownership
interests of Tenant shall be deemed to be a transfer of this Lease
excepting only where such transfers of stock are effected through the
"over-the~counter' market or through any recognized stock exchange or
in connection with a public offering of shares of Tenant. No consent
of Landlord to any assigntnent or other transfer of this Lease and the
term and estate hereby granted, and no consent by Landlord to any
subletting of all or any portion of the Premises, shall be construed
to relieve Tenant of its liability hereunder or of the obligation to
obtain such consent to any further assignment, other transfer or
subletting. Tenant may permit any corporation or other business entity
which controls, Is controlled by or is under common control (and which
at all times so remains) with Tenant including but not limited to a
bonafide merger or other consolidation of Tenant's business where the
resulting entity is at least as strong financially as Tenant (a
"Related C~~~oration') to sublet all or part of the Premises upon
prior written notice to Landlord setting forth the name of such
Related Corporation and the providing of reasonably satisfactory
- 22 -
evidence to Landlord that such subtenant is a Related
Corporation. Such subletting shall not vest in any such Related
Corporation any right or interest in this Lease nor shall it discharge
any of Tenant's obligations hereunder. For purposes hereof; "control"
means ownership and/or control of 50% or more of the equitable or
beneficial interest in such entity and/or control or participation in
or management of such entity.
12.02 Assignment and Subletting Prpcedure5 (a) Provided Tenant is
not then or thereafter in default in the payment of Basic Rent and/or
Additional Charges or is otherwise not in default under this Lease, if
Tenant intends to assign this Lease or to sublet the Premises or any
part thereof; Tenant shall give Landlord notice of such intent.
Tenant's notice shall be accompanied by (i) a description of all
material terms of the proposed agreement between Tenant and the
proposed assignee or subtenant, (ii) a statement setting forth in
reasonable detail the identity of the proposed assignee or sublessee,
the nature of its business and its proposed use of the Premises and
(iii) current financial information with respect to the proposed
assignee or subtenant. Tenant shall provide Landlord with any
additional information or documents requested by Landlord.
(1,) Landlord shall then have the option, exercisable by notice
to Tenant within twenty (20) days after receipt of such additional
information (or the date of Tenant's original notice if Landlord does
not timely request additional information) to:
(i)sublease the applicable space on the terms and conditions set
forth in this Lease, to the extent applicable, or, in the case of a
proposed assignment or a proposed subletting for all or substantially
all of the Term, to accept an assignment of this Lease, in either case
as of the date so specified by Tenant (but in no event earlier than
one hundred fifty (150) days after the date of receipt by Landlord of
such notice), or
(ii)permit Tenant to assign this Lease or sublet such space,
subject, however, to Landlord~s prior approval of the proposed
assignee or sublessee, which approval shall not be withheld or delayed
so long as:
(A)the use of the Premises by such proposed assignee or sublessee
would be permitted under Section 3.01,
(B)the proposed assignee or sublessee is of sound financial condition as
determined by Landlord given the obligations to be assumed by such assignee
or sublessee under this Lease;
(C)the proposed sublessee or assignee is a reputable person or
entity of good character and Landlord has been frirnished with
evidence thereof;
(D)neither the proposed subtenant or assignee nor any one
controlling, controlled by or under common control with such proposed
subtenant or assignee is then an occupant of any portion of the
Building or is a person with whom Landlord is then negotiating to
lease space in the Building;
(E)the form of the proposed sublease or assignment is
satisfactory to Landlord;
(F)there shall be no more than two (2) occupants within the
Premises, including Tenant; and
(G)the proposed subtenant shall not be (1) entitled, directly or
indirectly, to diplomatic or sovereign immunity unless effectively
waived and shall be subject to the service of process in, and the
jurisdiction of the courts of the State of New York or (2) a
charitable, religious, union or other not-for-profit organization or
any tax exempt entity within the meaning of Section
- 23 -
168G)(4)(A) of the Internal Revenue Code of 1986, as amended, or
any successor or substitute statute, or rule or regulation applicable
thereto (as the same may be amended).
(c) If the aggregate amount payable as base rent and additional
rent by a subtenant under a sublease of any part of the Premises shall
be in excess of Tenant's Basic Cost (as hereinafter defined) there for
at that time, then, within ten (10) days after the collection thereof;
Tenant shall pay to Landlord, as Additional Rent, such excess. Tenant
shall deliver to Landlord within thirty (30) days after the end of
each calendar year and within thirty (30) days after the expiration or
earlier termination of this Lease a statement specifying each sublease
in effect at any time during such calendar year or partial calendar
year, the number of square feet of rentable area demised thereby, the
term thereof and a computation in reasonable detail showing the
calculation of the amounts paid and payable by Tenant to Landlord with
respect to such sublease for the period covered by such statement.
"Tenant's Basic Cost" for sublet space at any time means the sum of
(x) the portion of the Base Rent and Tenant's Tax Payment which is
attributable to the sublet space at such time, plus (y) the amount of
any costs reasonably incurred by Tenant in making changes in the
layout and finish of the sublet space for the subtenant amortized on a
straight~ line basis over the term of the sublease plus (z) the amount
of any customary brokerage commissions and legal fees and
disbursements paid by Tenant in connection with the sublease amortized
on a straight-line basis over the term of the sublease.
(d) Upon any assignment of this Lease pursuant to the terms
hereof; Tenant shall pay to Landlord the Net Consideration (as
hereinafter defined) received by Tenant in respect of such assignment
or otherwise from such assignee. For purposes hereof; "Net
Consideration" means all sums paid by the assignee in consideration of
such assignment minus all customary and reasonable closing expenses
(including, without limitation, customary and reasonable legal and
brokerage expenses) incurred in connection with such assignment. 'Net
Consideration" shall include any sums paid for the purchase or rental
of any of Tenant's Property, less, in the case of a sale thereof; the
then net, unamortized or undepreciated cost thereof determined on the
basis of Tenant's Federal income tax retums.
(e) No assignment made pursuant to this Section 12.02 shall be
valid unless, within ten (10) days after the execution thereof; Tenant
shall deliver to Landlord a duplicate original instrument of
assignment and assumption, duly executed by Tenant and by the assignee
and in form and substance reasonably satisfactory to Landlord, wherein
such assignee shall assume performance of all terms of this Lease on
Tenant's part to be performed.
(f) Tenant shall, within ten (10) days after the commencement of
the term of a permitted sublease, give Landlord notice of such
commencement, or, in the case of permitted assignment, notice of the
effectiveness of such assignment.
(g) If Landlord consents to a proposed sublease or assignment and
the same does not become effective within ninety (90) days after the
giving of such consent, then Tenant shall again comply with all of the
provisions and conditions of this Article 12 before assigning this
Lease or subletting all or any part of the Premises.
(h) If Landlord shall decline to consent to any proposed
assignment or sublease as permitted by this Lease, or if Landlord
shall exercise its option under this Section to terminate this Lease,
Tenant hereby agrees to indemnify Landlord against any and all
liability arising from any claims that may be made against Landlord by
the proposed assignee or subtenant or by any broker, finder or other
person claiming a commission or other compensation in connection with
the proposed assignment or sublease.
12.03 Additional Subleasing Conditions. (a) If this Lease is
assigned, whether or not in violation of the terms of this Lease,
Landlord may collect rent from the assignee. If the Premises or any
part thereof is sublet or used or occupied by anybody other than
Tenant, Landlord may, after default by Tenant, collect rent from such
subtenant or occupant. In either event, Landlord may apply the net
amount collected to the rents herein reserved. The consent by Landlord
to an assignment, transfer, mortgage, pledge, encumbering or
subletting pursuant to any provision of this Lease shall not relieve
Tenant or any assignee or subtenant from obtaining the express prior
Nksfiidg.dupont.secwjtj~8,9~7~99
-24 -
consent of Landlord to any other or further assignment, transfer,
mortgage, pledge, encumbering or subletting. Tenant agrees to pay to
Landlord reasonable attorneys' fees and disbursements incurred by
Landlord in connection with any proposed assignment or subletting.
Neither any assignment of this Lease nor any subletting, occupancy or
use of the Premises or any part thereof by any person other than
Tenant, nor any collection of rent by Landlord from any person other
than Tenant, nor any application of any such rent as provided in this
Article, shall be deemed a waiver of any of the provisions of this
Article or relieve, impair, release or discharge Tenant of its
obligation xxxxx to perform the terms of this Lease on Tenant's part
to be performed, and Tenant shall remain fully and primarily liable
hereunder.
(b) No subletting shall be for a term ending later than the day
prior to the Expiration Date and any portion of a proposed term of any
sublease or any renewal or extension thereof which purports to extend
beyond such date, or the date of sooner termination of the Term, is
hereby deemed to be a nullity.
(c) If Landlord shall recover or come into possession of the
Premises before the Expiration Date, Landlord shall have the right to
take over any sublease made by Tenant and to succeed to all rights of
Tenant thereunder, Tenant hereby assigning (effective as of the date
of Landlord's succession to Tenant's estate in the Premises) such
subleases as Landlord may elect to take over. Every subletting
hereunder shall be subject to the condition that, from and after the
termination of this Lease or re-entry by Landlord hereunder or other
succession by Landlord to Tenant's estate in the Premises, the
subtenant shall waive any right to surrender possession or to
terminate the sublease and, at Landlord's election, shall be bound to
Landlord for the balance of the term thereof and shall attorn to and
recognize Landlord, as its landlord, under all of the then executory
terms of such sublease, except that Landlord shall not (i) be liable
for any previous act, omission or negligence of Tenant, as
sublandlord, under such sublease, (ii) be subject to any counterclaim,
defense or offset theretofore accruing to such subtenant against
Tenant, (iii) be bound by any previous modification or amendment of
such sublease made without Landlord's consent or by any previous
prepayment of more than one month's rent and additional rent unless
paid as provided in the sublease, or (iv) be obligated to perform any
repairs or other work in the subleased space or the Building beyond
Landlord's obligations under this Lease. Each subtenant shall promptly
execute and deliver such instruments as Landlord may reasonably
request to evidence and confirm such attornment.
12.04 Mortgagin~. Except as otherwise provided herein, Tenant,
for itself; its heirs, distributees, executors, administrators, legal
representatives, successors and assigns, expressly covenants that it
shall not mortgage, hypothecate, pledge or otherwise encumber this
lease without the prior written consent of Landlord in each instance.
ARTICLE 13
SUBORDINA TIONM TTORNMENT
13.01 Subordination. (a) This Lease and Tenant's rights hereunder
are subject and subordinate to; (i) all present and fliture ground
leases, operating leases, superior leases, overriding leases and
underlying leases and grants of term of the Building or any portion
thereof (collectively, including the applicable items set forth in
clause (iv) of this subsection (a), "SuDerior Leases'); (ii) all
mortgages and building loan agreements, including leasehold mortgages
and spreader and consolidation agreements, which may now or hereafter
affect all or any portion of the Building or any Superior Lease
(collectively, including the applicable items set forth in clauses
(iii) and (iv) of this subsection (a), 'L~~erior Mort~age~'), whether
or not a Superior Mortgage shall also cover other lands or buildings
or leases, except that a mortgage on the Land only shall not be a
Superior Mortgage so long as there is in effect a Superior Lease which
is not subordinate to such mortgage; (iii) each advance made under any
Superior Mortgage; and (iv) all renewals, modifications, replacements,
substitutions and extensions of any Superior Lease or Superior
Mortgage. The provisions of this subsection shall be self-operative
and no further instrument of subordination shall be required.
Nksfiidg.dupont.seourities.9.7.99 - 25 - (b) Tenant shall, within ten
(10) days after request therefor, execute and deliver, at its expense,
any instrument, in recordable form if requested, that Landlord, any
holder of a Superior Mortgage (a "Supenor Mortgagee') or any lessor
under a Superior Lease (a "SuDerior Lessor') may reasonably request,
from time to time, to evidence and confirm the subordination provided
in subsection (a) of this Section 13.01.
(c) Any Superior Mortgagee may elect that this Lease shall have
priority over the mortgage held by such Superior Mortgagee (such
mortgage, upon such election by the applicable Superior Mortgagee, is
referred to herein as a "u~bordinated Mortgage') and, upon
notification by such Superior Mortgagee to Tenant, this Lease shall be
deemed to have priority over such Subordinated Mortgage, whether this
Lease is dated prior to or subsequent to the date of such Subordinated
Mortgage and, to the extent that an election is made by a Superior
Mortgagee, the provisions of Section 13.01 (a) hereof shall not be
applicable to such Subordinated Mortgage (except as otherwise
provided), but such Superior Mortgagee shall remain a Superior
Mortgagee for the purpose of all other provisions of this Lease.
Tenant and such Superior Mortgagee shall promptly, upon the
notification by such Superior Mortgagee, execute and deliver an
instrument in recordable form to evidence and confirm such priority.
(d) If; in connection with obtaining, continuing or renewing
financing for which the Building, the Land or the interest of the
lessee under any Superior Lease represents collateral, in whole or in
part, the Superior Mortgagee or proposed Superior Mortgagee (including
any which may elect that this Lease shall have Priority over such
Superior Mortgage) shall request reasonable modifications of this
Lease as a condition of such financing, Tenant shall not withhold its
consent thereto, provided that such modifications do not increase
Tenantts obligation to pay Base Rent or Additional Charges, shorten or
lengthen the Term and do not materially increase any other obligations
or materially diminish any other rights of Tenant under this Lease.
(e) In the event that Tenant and the Exi sting Superior Holder
shall execute and deliver a subordination and attomment agreement with
respect to this Lease, the terms of such agreement shall supersede the
terms of this Article 13 to the extent applicable with respect to such
Existing Superior Holder.
13.02 Attomment. (a) If at any time any Superior Lessor, Superior
Mortgagee (each a "Senior Interest Holder') or any other person or the
successors or assigns of any of the foregoing (such Senior Interest
Holder and any such other person being herein collectively referred to
as "~~uccessor Landlora") shall succeed to the rights of Landlord
under this Lease, Tenant agrees, at the election and upon the request
of any such Successor Landlord, from time to time, fully and
completely to attorn to and recognize any such Successor Landlord as
Tenant's landlord under this Lease upon the then executory terms of
this Lease, provided such Successor Landlord shall agree in writing to
accept Tenant's attornment. The foregoing provisions of this Section
13.02 shall inure to the benefit of any such Successor Landlord, shall
apply notwithstanding that, as a matter of law, this Lease may
terminate upon the termination of the Superior Lease and shall be
self-operative upon any such request, and no further instrument shall
be required to give effect to said provisions. Upon the request of any
such Successor Landlord, Tenant shall execute and deliver, from time
to time, instruments reasonably satisfactory to any such Successor
Landlord, in recordable form if requested, to evidence and confirm the
foregoing provisions of this Section 13.02, acknowledging such
attornment and setting forth the terms and conditions of its tenancy.
(b) Upon such attornment, this Lease shall continue in full force
and effect as a direct lease between such Successor Landlord and
Tenant upon all of the then executory terms of this Lease except that
such Successor Landlord shall not be: (i) liable for any act or
omission or negligence of any prior Landlord (other than to cure any
default of a continuing nature); (ii) subject to any counterclaim,
defense or offset which theretofore shall have accrued to Tenant
against any prior Landlord; (iii) bound by the payment of any Base
Rent or Additional Charges for more than one month in advance (unless
actually received by such Successor Landlord); (iv) bound by any
modification or amendment of this Lease unless (A) such modification
or amendment shall have been approved in writing by the Senior
Interest Holder, of which Tenant has been given notice, through or by
reason of which the Successor Landlord shall have succeeded to the
rights of Landlord under this Lease or (B) the modification or
amendment shall have occurred prior to the creation of such Senior
Interest; (v) obligated to construct any
Nksft,dg. dupont. securities.9. 7.99
- 26 -
(a) a sum which, at the time of such termination, represents the
then present value (employing a discount rate equal to the then
current rate of United States Treasury Bills or Notes, as applicable,
maturing on the Expiration Date or the next maturity date for such
bills or notes occurring after the Expiration Date) of the excess, if
any of (i) the aggregate of the Base Rent and Additional Charges which
would have been payable hereunder by Tenant, had this Lease not
terminated, for the period commencing with the day following the date
of such termination and ending with the Expiration Date over (ii) the
aggregate fair rental value of the Premises for the same period (for
the purposes of this subsection (a), the amount of Additional Charges
which would have been payable by Tenant under Article 5 shall, for
each calendar year ending after such termination, be deemed to be an
amount equal to the amount of Tenant's Tax Payment payable by Tenant
for the calendar year and Tax Year, immediately preceding the calendar
year in which such termination shall occur), or
(b) sums equal to the aggregate Gross Rent which would have been
payable by Tenant had this Lease not terminated, payable upon the due
dates therefor specified herein until the Expiration Date; provided,
however, that if Landlord shall relet all or any part of the Premises
for all or any part of the period commencing on the day following the
date of such termination and ending on the Expiration Date, Landlord
shall credit Tenant with the net rents received by Landlord from such
reletting, such net rents to be determined by first deducting from the
gross rents as and when received by Landlord from such reletting the
expenses incurred or paid by Landlord in terminating this Lease and
re-entering the Premises and securing possession thereof, as well as
the expenses of reletting, including altering and preparing the
Premises for new tenants, brokers' commissions, and all other expenses
properly chargeable against the Premises and the rental therefrom in
connection with such reletting, it being understood that any such
reletting may be for a period equal to or shorter or longer than said
period and that Landlord shall have no obligation to so relet the
Premises; PrQxid~d' fiirth~x that (i) in no event shall Tenant be
entitled to receive any excess of such net rents over the sums payable
by Tenant to Landlord hereunder, (ii) in no event shall Tenant be
entitled, in any suit for the collection of damages pursuant to this
subsection (1)), to a credit in respect of any net rents from a
reletting except to the extent that such net rents are actually
received by Landlord, and (iii) if the Premises or any part thereof
should be relet in combination with other space, then proper
apportionment on a square foot rentable area basis shall be made of
the rent received from such reletting and of the expenses of
reletting.
Suit or suits for the recovery of any damages payable hereunder
by Tenant, or any installments thereoi, may be brought by Landlord
from time to time at its election, and nothing contained herein shall
require Landlord to postpone suit until the date when the Term would
have expired but for such termination. In addition to all remedies set
forth in this Article 14 and anywhere else in this Lease, if Tenant
shall be in default under this Lease beyond any applicable cure
period, then Tenant shall be obligated to repay to Landlord the Base
Rent for which Tenant was excused from paying pursuant to Section 4.02
hereof.
14.06 Right to Injunction. In the event of a breach or threatened
breach on part of Tenant with respect to any of the covenants or
agreements on the part of or on behalf of Tenant to be kept, observed
or performed, Landlord shall also have the right to seek an
injunction.
14.07 Other Remedies. Nothing herein contained shall be construed
as limiting or preventing the recovery by Landlord against Tenant of
any sums or damages to which, in addition to the damages particularly
provided above, Landlord may lawfully be entitled by reason of any
default hereunder on the part of Tenant. The specified remedies to
which Landlord may resort hereunder are cumulative and are not
intended to be exclusive of any other remedies or means of redress to
which Landlord may lawfully be entitled at any time, and Landlord may
invoke any remedy allowed at law or in equity as if specific remedies
were not herein provided.
14.08 CertainWaivers. Tenant waives and surrenders all right and
privilege which it might have under or by reason of any present or
future law to redeem the Premises or to have a continuance of this
Lease for the Term after Tenant is dispossessed or ejected therefrom
by process of law. Nksfndg.dupont.securities.9.7.99 -30-
14.09 No Waiver. Failure of Landlord to declare any default
immediately upon its occurrence or delay in taking any action in
connection with such default shall not waive such default but Landlord
shall have the right to declare any such default at any time
thereafter. Any amounts paid by Tenant to Landlord may be applied by
Landlord, in its sole discretion, to any items then owing by Tenant to
Landlord under this Lease and receipt of a partial payment shall not
be deemed to be an accord and satisfaction or waiver of the failure to
make full payment.
14.10 Attornevs'Fees. In the event (i) Landlord places the
enforcement of this Lease, or any part thereof, or the collection of
any rent due, or to become due, hereunder, or recovery of the
possession of the Premises in the hands of an attorney, or files suit
upon the same, or (ii) a court of competent jurisdiction finds or
declares that Tenant has defaulted in the performance of the terms of
this Lease, or is obligated to perform the terms of this Lease in the
manner directed by Landlord, Tenant shall reimburse Landlord within
ten (10) days after demand therefor for its reasonable attorneys' fees
and disbursements and court costs incurred in such proceedings. 14.11
Late Pavments. (a) All sums paid by Landlord and all costs and
expenses incurred by Landlord, including attorneys' fees, in
connection with the performance of any act that is required to be
performed by Tenant, together with interest thereon at an annual rate
(the "Lease Interest Rate '~) equal to five (5) percentage points
above the prime commercial lending rate of Citibank, N.A. (or its
successors or assigns) charged to its customers of highest credit
standing for ninety (90) day unsecured loans, in effect from time to
time, from the date of such payment or incurrence by Landlord of such
cost and expense, shall constitute additional rent payable by Tenant
under this Lease and shall be paid by Tenant to Landlord on demand.
(b) In the event Tenant shall fail to pay to Landlord Base Rent
or and Additional Charges on the first day the same shall be required
to be paid to Landlord hereunder (it being agreed that for purposes of
this Article 14, the first day that an amount is required to be paid
to Landlord hereunder means the first day that such amount is due
notwithstanding that a grace period, with or without notice, has been
granted; for example, since Base Rent is due on the first day of each
month, even though a grace period until the fifth (5th) day of each
month has been agreed to prior to the occurrence of a default
hereunder, the first day that Base Rent is required to be paid to
Landlord hereunder is the first day of each month and said Base Rent
is deemed to be due on the first day of each month and overdue from
and after the first day of each month if it is not paid to Landlord by
the end of the first day of each month), then:
(i) Tenant shall pay to Landlord interest on such overdue amount
of Base Rent or and Additional Charges at the Lease Interest Rate from
the fifth (5th) day such overdue amount shall be due, to the date of
payment thereof; and
(ii) In the event that Tenant shall fail to pay any portion of
Gross Rent by the date that is ten (10) days after the first day that
such amount shall become due and payable, then Tenant shall pay to
Landlord an administrative charge equal five percent (5%) of the
overdue amount.
ARTICLE 15
QUIET ENJOYMENT
15.01 Quiet Enjoyment. Landlord covenants that, so long as Tenant
is not in default in the payment or performance of any of its
obligations under this Lease beyond any applicable grace period,
Tenant shall and may peaceably and quietly have, hold and enjoy the
Premises. This covenant and any and all other covenants of Landlord
contained in this Lease shall be binding upon Landlord and its
successors and assigns only with respect to breaches which occur
during its and their respective ownership of Landlord's interest.
Nksfndg.duponLsecwlties.9.7.99
-31 -
ARTICLE 16
RULES OF THE BUILDING
16.01 Building Rule.~ Tenant shall comply with, and Tenant shall
cause its licensees, employees, contractors, agents and invitees to
comply with the rules of the Building (the "Rules and Regulations")
reasonably adopted and amended by Landlord from time to time for the
safety, care and cleanliness of the Premises and the Building and for
preservation of good order therein, all of which shall be communicated
by Landlord to Tenant and shall be thereafter carried out and observed
by Tenant, its agents, contractors, employees, invitees and licensees.
Landlord shall not enforce the rules of the Building in a manner which
discriminates against Tenant. The initial rules of the Building (the
"Building Rules and Regulations") are set forth in Exhibit D". If any
rule of the Building shall conflict with any provision of this Lease,
such provision shall govern.
16.02 Graphics No signs, numerals, letters or other graphics
shall be used or permitted on the exterior of; or which may be visible
from outside, the Premises, unless in accordance with Landlord's
established building standard building signage and approved by
Landlord in writing prior to any such of installation. Tenant shall
submit such request in writing to Landlord at least thirty (30) days
prior to such proposed installation, Landlord shall have ten (10) days
to accept or reject Tenant's proposal. If rejected, Tenant shall have
the option to resubmit its proposal
ARTICLE 17
INSURANCE
17.01 Comnilance with Insurance Standards. Tenant shall not
occupy or use the Premises, or permit any Portion of the Premises to
be occupied or used, for any business or purpose which is unlawful,
disreputable or deemed to be hazardous on account of fire or other
hazards, or permit anything to be done which would in any way increase
the risk of fire or other hazards, or permit anything to be done which
would in any way increase the rate of fire or liability or any other
insurance coverage on the Building or Building and/or its contents.
Landlord shall
Section. not be liable for the acts or omissions of other tenants
or parties which are in violation of the provisions of this
17.02 Landlord Insurance. (a) Landlord shall obtain and keep in
full force and effect insurance against loss or damage by fire and
other casualty to the Building as may be insurable under then
available standard forms of "all-risk" insurance Policies, in an
amount at least equal to eighty percent (80%) of the replacement value
thereof with such commercially reasonable deductible(s) as may be
determined by Landlord in its reasonable discretion. Tenant shall
notiiy Landlord of the completion of any such Alterations and of the
cost thereof; and shall maintain adequate records with respect to such
Alterations to facilitate the adjustment of any insurance claims with
respect thereto. Tenant shall cooperate with Landlord and Landlord's
insurance companies in the adjustment of any claims for any damage to
the Building or such Alterations.
(b) Landlord shall have the right to satisf~r its obligations
under subsection (a) of this Section 17.02 by means of any so-called
blanket policy or Policies of insurance covering the Building and
other properties of Landlord or its affiliates.
17.03 Tenant Insuranc~. (a) Tenant, at Tenant's sole cost and
expense, shall obtain and keep in full force and effect insurance
against loss or damage by fire and other casualty to Tenant's Property
and to all Alterations to the Premises under then available standard
forms of "all-risk" insurance policies, in an amount equal to one
hundred percent (100%) of the replacement value thereof; with such
commercially reasonable deductible(s) as may be determined by Tenant
in its reasonable discretion.
(b) Tenant, at Tenant's sole cost and expense, shall obtain and
maintain in full force and effect throughout the Term a commercial
general liability insurance policy (ISO form or equivalent) insuring
Tenant and naming Landlord and, at Landlord's request, any Senior
Interest Holder and any managing agent(s) of Landlord as
Xxxxxxx.xxxxxx.,ec~j~j~~,9,7,99
- 32 -
additional insured(s), against any liability for bodily injury,
death or property damage occurring on or about the Premises, with
limits of liability of not less than $1,000,000 with respect to bodily
injury and property damage arising from any one occurrence and
$1,000,000 from the aggregate of all occurrences within each policy
year. Such policy shall include a provision that such aggregate limit
shall apply separately at the Premises. In addition, Tenant shall
carry umbrella limits not less than $2,000,000 per occurrence for a
total liability limit of $3,000,000,
(c) Tenant shall not carry separate or additional insurance with
respect to the risks covered by the insurance required by this Article
17, concurrent in form or contributing in the event of any loss or
damage with any insurance required to be obtained by Tenant under this
Lease. Tenant may carry any insurance coverage required of it
hereunder pursuant to blanket policies of insurance so long as the
coverage afforded Landlord and the other named insureds thereunder
shall not be less than the coverage which would be provided by direct
policies.
17.04 Waiver of Subrogation. The parties hereto (a) shall use all
reasonable efforts to procure an appropriate clause in, or endorsement
on, any all-risk insurance covering the Premises, the Building and
personal property, fixtures and equipment located thereon or therein,
pursuant to which the insurance companies issuing same waive
subrogation or consent to a waiver of right of recovery, and ~)
subject to obtaining such clause or endorsement of waiver of
subrogation or consent to a waiver of right of recovery, hereby agree
not to make any claim against or seek to recover from the other for
any loss or damage to its property or the property of others resulting
from fire or other hazards covered by such fire and extended coverage
insurance; provided, however, that the release, discharge, exoneration
and covenant not to xxx herein contained shall be limited by and
coextensive with the terms and provisions of the waiver of subrogation
clause or endorsement or clause or endorsement consenting to a waiver
of right of recovery. If either party shall be unable to obtain the
inclusion of such waiver of subrogation or consent to waiver clause
even with the payment of an additional premium, then such party shall
attempt to name the other party as an additional insured but not a
loss payee) under the policy. Tenant acknowledges that Landlord shall
not carry insurance on, and shall not be responsible for damage to,
Tenant's Property, that Landlord may not carry insurance on, and shall
not be responsible for damage to, any Alterations, and that Landlord
shall not carry insurance against, or be responsible for any loss
suffered by Tenant due to, interruption of Tenant's business.
17.05 Pohcy Requirements (a) The insurance required to be
obtained by Tenant under this Article: (i) shall be issued by an
insurance company of recognized reputability licensed to do business
in the State of New York, which is rated A-X or better by Best's Key
Rating Guide, and (ii) shall be primary and not be concurrent in form
or contributing with any other coverage which Tenant or Landlord may
carry.
(1)) Neither the issuance of any insurance policy required under
this Lease, nor the minimum limits specified herein with respect to
Tenant's insurance coverage, shall be deemed to limit or restrict in
any way Tenant's liability arising under this Lease. The dollar
amounts set forth in this Article shall be subject to review by
Landlord from time to time during the term and may be increased by
Landlord in accordance with the requirements imposed by landlords from
time to time with respect to first-class office buildings located in
the Borough of Manhattan in the City of New York.
(c) With respect to each insurance policy required to be obtained
by Tenant under this Article, on or before the Commencement Date,
Tenant shall deliver to Landlord satisfactory evidence that such
insurance is in effect and satisfies the requirements of this Article,
By no later than within thirty (30) days of to the expiration of any
required policy Tenant shall provide to Landlord reasonably
satisfactory evidence of renewal or replacement of such insurance
policy. Each insurance policy required to be carried hereunder by or
on behalf of Tenant shall provide (and any certificate evidencing the
existence of each such insurance policy shall certiiy) that such
insurance policy shall not be canceled or materially modified unless
Landlord shall have received at least thirty (30) days' prior written
notice of such cancellation or modification. Landlord shall have the
right to require Tenant to obtain a certified summary of the coverage
afforded by any required policy and shall not be limited to accepting
a certificate of insurance. Nk5fildg.dupon~5ecuridcg,9,7,99
- 33 -
ARTICLE 18
NONLIABILITY AND INDEMNIFICATION
18.01 Exculpation. (a) Neither Landlord nor any Senior Interest
Holder, nor any of their agents, officers, directors, shareholders,
partners or principals (disclosed or undisclosed) shall, except as
provided in subsection (1')hereinafter, shall be liable to Tenant or
Tenant's agents, employees, contractors, invitees or licensees or any
other occupant of the Premises in connection with any injury to Tenant
or to any other person or for any damage to, or loss (by theft or
otherwise) of; any of Tenant's Property or of the property of Tenant
or any other person arising from or in connection with the use by
Tenant or such other person of the Premises or the Building,
irrespective of the cause of such injury, damage or loss, it being
understood that no property, other than such as might normally be
brought upon or kept in the Premises as incidental to the reasonable
use of the Premises for the purposes herein permitted will be brought
upon or be kept in the Premises. Any employee to whom any property
shall be entrusted by or on behalf of Tenant shall be deemed to be
acting as Tenant's agent with respect to such property and neither
Landlord nor any Senior Interest Holder nor their respective agents
shall be liable for any loss of or damage to any such property by
theft or otherwise.
(b) Except for such liability as may be imposed by law for the
negligence of Landlord or Landlord's Agents or for the breach by
Landlord of any term of this Lease to be performed by Landlord, no (i)
performance by Landlord, Tenant or others of any repairs or
Alterations in or to the Building or Premises, (ii) failure of
Landlord or others to make any such repairs or Alterations, (iii)
damage to the Building Systems or equipment, Premises or the property
of Tenant, (iv) injury to any persons caused by other tenants or
persons in the Building or by operations in the construction of any
private, public or quasi-public work, or by any other cause, (v)
latent defect in the Building, Building Systems or equipment or
Premises, (vi) diminution or shutting off of light, air or view by any
structure which may be erected on lands in the vicinity of the
Building or (vii) inconvenience or annoyance to Tenant or injury to or
interruption of Tenant's business by reason of anything referred to in
the foregoing subsections (i) through (vi), shall impose any liability
on Landlord to Tenant. No representation, guaranty or warranty is made
that the communications or security systems, devices or procedures of
the Building or Building will be effective to prevent injury to Tenant
or any other person or damage to, or loss (by theft or otherwise) of;
any of the property of Tenant or the property of any other person, and
Landlord reserves the right to discontinue or modify at any time such
communications or security systerns or procedures without liability to
Tenant.
18.02 Indemnits. To the fullest extent permitted by applicable
law, Tenant hereby agrees to indernnify and hold harmless Landlord,
each Senior Interest Holder and any managing agent of Landlord, and
their respective agents, officers, directors, shareholders, partners
and principals, from and against any and all claims, losses, actions,
damages, liabilities and expenses (including, without limitation,
reasonable attorneys' fees and disbursements) that arise out of or in
connection with (a) the possession, use, occupancy, management,
repair, maintenance or control of the Premises, or any portion
thereof; or the business conducted by Tenant in the Premises, or (1,)
any Alteration to any portion of the Premises or the Building made by
or for Tenant or any occupants of the Premises, or (c) any willful or
negligent act or omission of Tenant or anyone for whom Tenant is
responsible, or (d) any default, breach, violation or nonperformance
of this Lease by Tenant or any subtenant of Tenant or any officer,
employee, agent or contractor of Tenant or any subtenant of Tenant, or
(e) any Environmental Activity by Tenant or anyone for whom Tenant is
responsible at the Building, or (f) any injury or death to individuals
or damage to property sustained on or about the Premises; provided,
however, that nothing contained in this Section shall obligate Tenant
to indemnify Landlord from any claim, loss, damage, liability or
expense resulting solely from the gross negligence or willful
misconduct of Landlord or Landlord's Agents. Tenant shall, at its own
cost and expense, upon notice thereof from Landlord defend any and all
actions, suits and proceedings which may be brought against any one or
more of the aforesaid parties with respect to the foregoing or in
which any one or more of the aforesaid parties may be impleaded.
Tenant shall pay, satisfy and discharge any and all final money
judgrnents which may be recovered against Landlord in connection with
the foregoing. The general liability insurance policy required by
Section 17.03~) hereof shall also cover Tenant for liability assumed
by contract, specifically including clause (I) of this Section 18.02.
The obligations of Tenant under this Section 18.02 shaU survive the
expiration or sooner termination of this Lease.
-34-
~ksfndg.duponL.securities.9.7.99
18.03 Limitation ofLandlord's Personal Liability. Tenant shall
look solely to Landlord's interest in the Building for the recovery of
any judgment against Landlord, and if Landlord is a partnership, its
partners, whether general or limited, or if Landlord is a corporation,
its directors, officers or shareholders, shall never be personally
liable for any such judgment. The foregoing sentence is not intended
to, and shall not, limit any right that Tenant might otherwise have to
obtain injunctive relief against Landlord or Landlord's successors or
assigns or to maintain any suit or action in connection with
enforcement or collection of amounts which may become owing or payable
under or on account of insurance maintained by Landlord. Any lien
obtained to enforce any such judgment and any levy of execution on
such judgment shall be subject and subordinate to any Superior
Mortgage.
ARTICLE 19
CONDEMNATION
19.01 Condemnation. (a) If there shall be a total taking of the
Premises or a Constructive Total Taking (as defined in this Section
19.01) of the Building in condemnation proceedings or by any right of
eminent domain or by conveyance in lieu thereof; this Lease and the
Term and estate hereby granted shall forthwith cease and terminate as
of the date of taking of possession by the condemning authority. In
the event of a taking which is less than a Constructive Total Taking,
(i) the term and estate hereby granted with respect to the taken part
of the Premises shall forthwith cease and terminate as of the date of
taking of possession by the condemning authority and the Gross Rent,
Tenant's Tax Share and Base Real Estate Taxes shall be appropriately
abated or reduced, as the case may be, with respect to such portion of
the Premises for the period from such date to the date specified in
this Lease for the expiration of the Term and (ii) the Base Rent shall
be appropriately abated for any portion of the Premises rendered
untenantable by such taking until such portion of the Premises is made
tenantable. "Constructive Total Taking" means a taking of such scope
that (A) the untaken part of the Building (whether or not the Premises
are affected by the taking) would in Landlord's judgment be uneconomic
to operate and (b) leases (including this Lease) of tenants occupying
at least seventy-five percent (75%) of the rentable area of the
Building are terminated in connection with such taking. Landlord shall
give Tenant notice of a total taking or a Constructive Total Taking
within fifteen (15) days of receiving notice thereof.
(b) In the event of any condemnation or taking of all or a part
of the Building, Landlord shall be entitled to receive the entire
award in the condemnation proceeding, including any award made for the
value of the estate vested by this Lease in Tenant, Tenant shall be
entitled to receive no part of such award and Tenant hereby assigns to
Landlord any and all right, title and interest of Tenant now or
hereafter arising in or to any such award or any part thereof;
provided, however, that nothing shall preclude Tenant from intervening
in any such condemnation proceeding to claim or receive from the
condemning authority any compensation to which Tenant may otherwise
lawfully be entitled in such case for the expenses of moving to a new
location, reimbursement for the loss of Tenant's Property or for any
other benefits available to a tenant in such circumstances; provided
further that the same (i) does not include any value of the estate
vested by this Lease in Tenant and (ii) shall not reduce the award of
Landlord in any respect.
(c) Notwithstanding the foregoing, if all or any portion of the
Premises shall be condemned or taken for governmental occupancy for a
limited period, this Lease shall continue in full force and effect
(without any abatement of the Gross Rent) and Tenant shall be entitled
to receive the entire award therefor (whether paid as damages, rent or
otherwise) unless the period of governmental occupancy extends beyond
the Expiration Date, in which case Landlord shall be entitled to such
part of such award as shall be properly allocable to the cost of
restoration of the Premises, and the balance of such award shall be
apportioned between Landlord and Tenant as of the Expiration Date. If
the termination of such governmental occupancy occurs prior to
expiration of this Lease, Tenant shall, to the extent that an award
has been made for such purpose, after application for and diligent
pursuit of such award by Tenant, restore the Premises as nearly as
possible to their condition prior to the condemnation or taking.
Xxxxxxx.xxxxxx.,ecuritieg.9.7.99
- 35 -
ARTICLE 20
CASUALTY
20.01 Casualty. If(a) the Premises or any part thereof shall be
damaged or rendered untenantable by fire or other insured casualty,
(1') Tenant gives notice of such damage or destruction to Landlord and
(c) this Lease is not to be terminated pursuant to this Article 20,
Landlord shall proceed with the repair of such damage (but Landlord
shall have no obligation to repair any damage to any Alterations or
Tenant's Property) with reasonable diligence after the collection of
the insurance proceeds attributable to such damage, but only to the
extent of available insurance proceeds. Except as provided in Section
20.05, the rent shall be equitably 'abated to the extent that all or
any part of the Premises shall have been rendered untenantable, from
the date of the damage to the date that Landlord shall have completed
the repairs required of Landlord pursuant to the previous sentence;
provided, however, that if Tenant reoccupies a portion of the Premises
during the period of repair, the rent ~locable to such reoccupied
portion, based upon the proportion which the reoccupied portion of the
Premises bears to the total area of the Premises, shall be payable by
Tenant from the date of such occupancy.
20.02 Landlord Right to Terminate. If the Premises shall be
totally damaged or rendered wholly Untenantable by fire or other
casualty or if the Building shall be so damaged by fire or other
casualty that substantial alteration or reconstruction of the Building
shall, in Landlord's sole opinion, be required (whether or not the
Premises shall have been damaged by such fire or other casualty) or
the insurance proceeds available to Landlord, in Landlord's sole
opinion, shall not be reasonably sufficient to repair the damage, then
in any such event Landlord may, at its option, terminate this Lease by
giving Tenant thirty (30) days' notice of such termination at any time
within one hundred eighty (180) days after the date of such fire or
other casualty. If such notice of termination shall be given, this
Lease shall terminate as of the date provided in such notice (whether
or not the Term shall have commenced) with the same effect as if that
date were the Expiration Date. If; at any time prior to the giving of
the notice of termination or the commencement of repairs pursuant to
Section 20.01, there shall be a Successor Landlord (as hereinafter
defined), such Successor Landlord shall have a further period of
ninety (90) days from the date of its taking possession or from the
expiration of the one hundred eighty (180) day period established
above, whichever is earlier, to terminate this Lease by thirty (30)
days' notice to Tenant, in which event this Lease shall terminate as
of the date provided in such notice (whether or not the Term shall
have commenced) with the same effect as if that date were the
Expiration Date. If however, the Premises are not restored or repaired
within one hundred eighty (180) days of the casualty then provided
Tenant if not otherwise in default Tenant shall have the right to
terminate this Lease by giving thirty (30) days prior notice to
Landlord after said one hundred eighty (180) days and Landlord may
substantially complete said restoration and/or repairs within said
thirty (30) day period and the Lease will continue. If; however,
Landlord fails to substantially complete the restoration and/or
repairs within said thirty (30) days, then, the Lease shall terminate
and be of no further force and effect and neither party shall
thereafter have any claim or action against the other.
20.03 Disclaimer. Landlord shall not be liable for any
inconvenience or annoyance to Tenant or injury to the business of
Tenant occasioned by damage by fire or other casualty or the repair
thereof. Landlord will not carry insurance of any kind on Tenant's
Property or the Improvements made by or on behalf of Tenant in the
Premises, and, notwithstanding anything to the contrary in this
Article 20, Landlord shall not be obligated to repair any damage to
Tenant's Property or to said Improvements or to replace the same.
20.04 RPL~22i. This Article shall be considered an express
agreement governing any case of damage to or destruction of the
Building and the Premises by fire or other casualty, and any law
providing for such a contingency in the absence of such an express
agreement, including, without limitation, New York Real Property Law
ss. 226, shall have no application in such case.
20.05 Cooperation. Notwithstanding any of the foregoing
provisions of this Article 20, ii, by reason of some action or
inaction on the part of Tenant or any of Tenant's Invitees, either (a)
Landlord or the Senior Interest Holders shall be unable to collect all
of the insurance proceeds (including rent insurance proceeds)
applicable to damage or destruction of the Premises or the Building by
fire or other casualty or (b) the Premises
Nksfiidg.dupoti~securities.9.7.99
- 36 -
or the Building shall be damaged or destroyed or rendered
completely or partially Untenantable on account of fire or other
casualty then, without prejudice to any other remedy which may be
available against Tenant, the abatement of rent provided for in this
Article shall not be effective (i) in the case of subsectio~ (a)
above, to the extent of the uncollected insurance proceeds, and (ii)
in the case of subsection (1)) above, to the extent of the excess of
the cost of repair over the amount of the collected insurance
proceeds.
ARTICLE 21
SU~NDER
21.01 ~rrend~ (a) On the Expiration Date or upon the Sooner
termination of this Lease or upon any re~entry by Landlord, Tenant
shall, at its expense, quit, surrender, vacate and deliver the
Premises to Landlord "broom clean" and in good order, condition and
repair, ordinary wear, tear and damage by fire or other insured
casualty excepted, together with all Tenant Improvements and
Alterations (except as otherwise Provided for in this Lease). Tenant
shall, at its expense, except to the extent Landlord shall notify
Tenant in writing not later than thirty (30) days prior to the
Expiration Date, remove from the Building all of Tenant's Property and
restore the Premises to their condition immediately after Landlord
made the Initial Alterations. Any Tenant's Property or other personal
property which shall remain in the Premises (A) after the Expiration
Date or (b) for thirty (30) days after the termination of this Lease
shall be deemed to have been abandoned and either may be retained by
Landlord as its Property or may be disposed of as Landlord may see
fit. If such property not so removed shall be sold, Landlord may
receive and retain the proceeds of such sale and apply the same, at
its Option, against the expenses of the sale, moving and storage,
arrears of rent and any damages to which Landlord may be entitled. Any
excess proceeds shall be the property of Landlord. Any expense
incurred by Landlord in removing or disposing of any item that Tenant
is required to remove and/or dispose 0f pursuant to this Section
21.01, shall be reimbursed to Landlord by Tenant as Additional Charges
on demand. The obligation5 of Tenant under this Section 21.Ol(a) shall
Survive the expiration or sooner termination of the Lease.
(b) Tenant expressly waives, for itself and for any person
claiming through or under Tenant, any rights which Tenant or such
person may have under the provisions of Section 2201 of the New York
Civil Practice Law and Rules and any similar successor law of same
import then in force in connection with any holdover Proceedings which
Landlord may institute to enforce the Provisions of this Article.
21.02 ~?-Over. In the event of any holding~ov~~ by Tenant after
expiration or termination of this Lease without the consent of
Landlord, Tenant shall:
(a) Pay as holdover rental for each month of the holdover tenancy
an amount equal to the greater of (i) the fair market rental value of
the Premises for such month (as reasonably determined by Landlord) or
(ii) two hundred fifty percent (250%) of the Gross Rent which Tenant
was Obligated to pay for the month immediately Preceding the end of
the Term; and
(b) be liable to Landlord for any Payment or rent concession
which Landlord may be required to make to any tenant obtained by
Landlord for all or any part of the Premises (a "New Tenant") in order
to induce such New Tenant not to terminate its lease by reason of the
holding~ov~~ by Tenant (including, without being limited to, any
holdover expenses, rent or damages that a New Tenant shall be
responsible for), and (ii) the loss of the benefit of the bargain if
any New Tenant shall terminate its lease by reason of the holding~ov~~
by Tenant.
No holding~ov~~ by Tenant after the Term shall operate to extend
the Term. In the event of any unauthorized holding~ov~~, Tenant shall
indemnify and hold harmless Landlord against all claims for damages by
any other tenant to whom Landlord may have leased all or any part of
the Premises effective upon the termination of this Lease. Anything in
this Article to the contrary notwithstanding, the acceptance of any
rent paid by Tenant Pursuant to this Section 21.02 shall not preclude
Landlord from commencing and Prosecuting a holdover or summary
eviction Proceeding, and the preceding sentence shall be deemed to be
an "agreeme~~ expressly Providing
-37-
otherwise" within the meaning of Section 232-C of the Real
Property Law of the State of New York and any successor law of like
import.
ARTICLE 22
ESTOPPEL CERTIFICATES
22.01 EstopDel Certificates. Tenant agrees at any time and from
time to time upon ten (10) days' prior notice from the Landlord to
execute, acknowledge and deliver to the Landlord and to such other
persons and entities as Landlord may reasonably designate, a statement
certifying (a) that this Lease is unmodified and in full force and
effect, or if there have been modifications, that the Lease is in full
force and effect as modified and stating the modifications, (b) the
date to which the Base Rent has been paid and the current amount of
Base Rent, (c) whether all Additional Charges that are due and payable
on or before such date have been paid in full, (d) that, to the best
of the certifying party's knowledge, the Landlord is not in default in
obserying, performing or complying with any term, covenant or
condition contained in this Lease on such party's part to be observed,
performed or complied with or, if the certifying party has knowledge
of any such default, specifying each such default, (e) that, to the
best of the certifying party's knowledge, the certifying party has not
made and does not have any claim against the Landlord under this Lease
or, if so, the nature and the dollar amount, if any, of such claim,
(f) that, to the best of the certifying party's knowledge, there do
not exist any offsets, defenses or counterclaims against enforcement
of any of the terms, covenants or conditions of this Lease to be
observed, performed or complied with on the part of the Landlord, or,
if such do exist, specifying the same and the dollar amount thereof;
and (g) such further information with respect to this Lease or the
Premises as Landlord may reasonably request, it being intended that
any such statement delivered pursuant to this Section 22.01 shall be
binding on the certifying party and may be relied upon by the
requesting party and any designee of the requesting party, including,
without limitation, any prospective purchaser of the Premises, any
mortgagee or prospective mortgagee of the Premises, or any lessor or
prospective lessor under any underlying lease of the Premises or any
assignee or prospective assignee of any such mortgagee or lessor.
ARTICLE 23
INTENTIONALL YDELETED
ARTICLE 24
AIR CONDITIONING MAINTENANCE
24.01 Air Conditioning Maintenance. (a) Tenant covenants and
agrees to keep any and all air conditioning units installed in the
Premises, by Landlord or by or on behalf of Tenant, in good order and
condition throughout the term of this Lease at Tenant's sole cost and
expense by means of a full service parts and labor contract(s) with a
reputable licensed air conditioning service firm(s). Tenant agrees to
furnish Landlord with a copy of said contract(s) and keep said
contract(s) in full force and effect throughout the term of this
Lease. Tenant further agrees to return said air conditioning unit(s)
to Landlord in good order and condition at the end of the term of this
Lease. Tenant acknowledges that said air conditioning Unit(s) is(are)
and shall remain the sole property of Landlord and may not be removed
by Tenant. Notwithstanding anything to the contrary, as provided in
Section 9.02 herein, Landlord shall provide the air conditioning
system servicing the premises in working order on the Commencement of
this Lease.
(b) Anything to the contrary contained in this Lease
notwithstanding, Tenant agrees to pay the cost of any and all permits
and fees required by any branch or department of the borough, county,
city, state or federal government in connection with any air
conditioning or other equipment now or hereafter located in and/or
serving the Premises whether or not installed by Landlord or Tenant.
Xxxxxxxx.xxxxxx.,ecurities.9.7.99
- 38 -
26.11 Merger. This Lease embodies the entire understanding
between the parties with respect to the subject matter hereof; and all
prior agreements, understandings and statements, oral or written, with
respect thereto are merged in this Lease.
26.12 Applicable Law. State of New York. This Lease shall be
construed and enforced according to the laws of the
26.13 Shoring: No Dedication. (a) If an excavation or other
substructure work shall be undertaken or authorized upon land adjacent
to the Building or in the vaults beneath the Building or in subsurface
space adjacent to said vaults, Tenant shall afford Landlord or the
person causing such excavation or other substructure work license to
enter upon the Premises for the purpose of doing such work as Landlord
or such person shall reasonably deem necessary to protect any of the
walls or structures of the Building or surrounding land from injury or
damage and to support the same by proper foundations, pinning and/or
underpinning, and, except in case of emergency, Landlord shall
endeavor to have such entry accomplished during reasonable hours in
the presence of a representative of Tenant, who shall be designated by
Tenant promptly upon Landlord's request. Such license to enter shall
be without liability of Landlord to Tenant.
(b) Landlord shall have the right to erect any gate, chain or
other obstruction or to close off any portion of the Common Areas to
the public at any time to the extent necessary to prevent a dedication
thereof for public use. Landlord shall use reasonable efforts to
minimize any resulting interference with access to the Premises.
26.14 Notice of Occurrences. Tenant shall give notice to
Landlord, promptly after Tenant learns thereof; of any accident,
emergency, occurrence for which Landlord might be liable, fire or
other casualty and all damages to or defects in the Premises or the
Building for the repair of which Landlord might be responsible or
which constitutes Landlord's property. Such notice shall be given by
telegram, facsimile or personal delivery to the address of Landlord
then in effect for notices.
26.15 Vaults. No vaults, vault space or other space not within
the property line of the Building shall be leased hereunder
notwithstanding anything contained in or indicated on any sketch,
blueprint or plan, or elsewhere in this Lease to the contrary.
Landlord makes no representation as to the location of the property
line of the Building. All vaults and vault space and all other space
not within the property line of the Building, which Tenant may be
perrnitted to use or occupy, are to be used or occupied under a
license revocable by Landlord on ten (10) days' notice to Tenant, and
should any such license be revoked by Landlord, or should the amount
of any such vaults, vault space or other space be diminished or
required by any federal, state or municipal authority or public
utility, Landlord shall be without liability to Tenant. Any fee, tax
or charge imposed by any governmental authority for any such vault,
vault space or other space shall be paid by Tenant.
26.16 Window Cleaning. Tenant shall not authorize the cleaning of
any window in the Premises from the outside (within the meaning of
Section 202 of the New York Labor Law or any successor statute).
26.17 IYL-ndows.Z If at any time any windows of the Premises are
temporarily closed, darkened or bricked-up by reason of repairs,
maintenance, alterations or improvements to the Building, or any of
such windows are permanently closed, darkened or bricked-up due to any
Legal Requirement, Landlord shall not be liable for any damage Tenant
may sustain thereby and Tenant shall not be entitled to any
compensation therefor nor abatement of Base Rent or Additional Charges
nor shall the same release Tenant from its obligations hereunder nor
constitute an eviction.
26.18 Consents and ADDrO yals. (a) Wherever it is specifically
provided in this Lease that a party's consent or approval shall not be
unreasonably withheld, a response to a request for such consent or
approval shall also not be delayed. If either Landlord or Tenant
considers that the other has withheld or delayed a consent or
approval, it shall so notify the other party within ten (10) days
after receipt of notice of denial of the requested
Nksfndg.dupont.securines.9.7.99
- 42 -
consent or approval or, in case notice of denial is not received,
within fifteen (15) days after making its request for the consent or
approval. "~ent" shall mean the prior written approval or consent of
the applicable party.
(b) Tenant hereby waives any claim against Landlord which it may
have based upon any assertion that Landlord has unreasonably withheld
or unreasonably delayed any consent or approval that, pursuant to the
terms of this Lease, is not to be unreasonably withheld and Tenant
agrees that its sole remedy shall be an action or proceeding to
enforce any such provision or for specific performance, injunction or
declaratory judgment that the requested consent or approval shall be
deemed to have been granted.
26.19 DeYelopment Ri~hts. (a) Tenant acknowledges that it has no
rights to any development rights, "air rights" or comparable rights
appurtenant to the Building, and consents, without further
consideration, to any utilization of such rights by Landlord and
agrees to promptly execute and deliver any instruments which may be
requested by Landlord, including instruments merging zoning lots,
evidencing such acknowledgment and consent. The provisions of this
Section shall be deemed to be and shall be construed as an express
waiver by Tenant of any interest Tenant may have as a "party in
interest" (as such quoted term is defined in Section 12-10 Zoning Lot
of the Zoning Resolution of the City of New York) in the Building.
(b) Landlord shall have the right, at any time, to convert the
Building to condominium ownership and, upon such conversion, (i) this
Lease and the estate granted hereby shall be subject and subordinate
to the applicable condominium declaration and related documents and
(ii) the owner of the unit or units of which the Premises form a part
shall be deemed to be the Landlord hereunder.
(c) (1) Anything to the contrary contained in this Lease
notwithstanding, Landlord, upon not less than sixty (60) days prior
written notice to Tenant, shall have the right and shall use all
reasonable efforts to substitute, as of a date specified in said
notice (the "Effective Date"), other space (the "Substitute Space") in
the Building of which the Premises forms a part as the demised
premises hereunder in lieu of the space (the "Prior Space") then
constituting the demised premises hereunder immediately prior to the
giving of such notice. Notwithstanding the above, Landlord shall have
the option to relocate the Premises prior to the Commencement Date, to
comparable substitute space in the Building.
(2) Prior to the Effective Date, Landlord, at Landlord's expense
and with Tenant's reasonable cooperation (but at no cost to Tenant),
shall furnish necessary moving labor to move Tenant and Tenant's
equipment and personal property to the Substitute Space, which
Substitute Space shall be substantially equivalent in area and then
existing build out (including, the Initial Alterations, as same may
have been modified) to the Prior Space and, further, Landlord shall
reimburse Tenant for the cost of transferring its telephone,
communications and facsimile service to the Substitute Space as well
as for the cost of replacing a reasonable number of floor specific
stationary and business cards, if any.
(3) Automatically on the Effective Date, the Substitute Space
shall constitute the demised premises hereunder and all of the terms
of this Lease shall apply thereto (except that Landlord shall not be
required to perform any work or furnish any materials with respect to
Tenant's installation in the Substitute Space, other than as
hereinabove specifically provided), and the Prior Space shall
automatically be deleted from the coverage of this Lease and the term
of this Lease insofar as the Prior Space only is concerned shall be
deemed to have ceased and expired with the same force and effect as if
the Effective Date were originally provided in this Lease as the
expiration date hereof but this Lease shall continue in full force and
effect for the full term hereof with respect to the Substitute Space.
(4) Tenant covenants and agrees to quit and surrender vacant full
possession of the Prior Space to Landlord on the Effective Date free
and clear of any leases, tenancies and rights of occupancy of anyone
claiming by or through Tenant. If Tenant shall fail or refuse to
surrender such vacant full possession of the Prior Space to Landlord
on or before the Effective Date (for any reason other than failure to
furnish moving labor to Tenant), then and in such event Tenant shall
pay to Landlord for each day or fraction thereof that Tenant shall
fail to surrender such vacant full Possession of the Prior Space to
Landlord (in additional to all Base Rent and Additional Charges
provided to be paid under this Lease which is applicable from and
after the Effective Date to the Substitute Space) an agreed~upon sum
equal to three (3) times the quotient obtained by diving (i) the sum
of
Nksfndg.dupont.se0un~j~~,9,7~99
- 43 -
the monthly installment of Base Rent then payable under this
Lease plus one-twelfth (1/12) of all Additional Charges then payable
under this Lease by (ii) thirty (30) (the "Daily Rate for the Prior
Space"). Such Daily Rate for the Prior Space is in the nature of
liquidated damages to Landlord for Tenant's failure to surrender such
vacant full possession of the Prior Space to Landlord on or before the
Effective Date. The foregoing provision for payment by Tenant of the
Daily Rate for the Prior Space shall be without prejudice to
Landlord's instituting summary or such other proceedings as Landlord
may desire in order to obtain as promptly as possible vacant full
possession of the Prior Space. The foregoing provision for payment by
Tenant of the Daily Rate for the Prior Space relates solely to
Landlord and Tenant's mutual agreement to the daily value of the Prior
Space to each of Landlord and Tenant taking into consideration
Tenant's agreement to comply with the terms of this Article and to
surrender vacant full possession of the Prior Space to Landlord on or
before the Effective Date, time being deemed of the essence;
therefore, in addition to Tenant's agreement to make payment of the
Daily Rate for the Prior Space for each subject day, Tenant agrees to
pay Landlord the total amount of any loss, damage, cost or injury
(including attorneys' fees and disbursements) suffered by Landlord
with regard to any existing or potential transaction which is
adversely affected by Tenant's failure or refusal to timely surrender
the Prior Space.
(d) If Landlord shall at any time during the term of this Lease
decide to demolish or substantially renovate the Building, including
but not limited to a change of use of the Building and/or that portion
of the Building in which the Premises are a part, then Landlord shall
have the right to terminate this Lease as of the last day of any month
thereafter upon not more than six (6) months prior written notice by
Landlord to Tenant. In the event that Landlord shall give such notice,
then upon the date specified in such notice for the termination of
this Lease, this Lease and the term and estate hereby granted shall
terminate as though such date were the date originally set forth in
this Lease for the expiration of the term hereof; and Tenant shall, on
or before such date, vacate and remove from the Demised Premises in
accordance with the provisions of this Lease.
26.20 Business Hours. As used in this Lease, "Business Days"
means any days which are not -------------- -------------
Saturdays, Sundays or holidays designated by Landlord
("Holidays") and "Business Hours" means the hours between
--------------
8:00 A.M. and 6:00 P.M. on Business Days. 26.21 Confidentiality.
Tenant shall use reasonable efforts to keep the provisions of this
Lease confidential, and shall instruct its agents, employees,
attorneys and consultants to keep such provisions confidential.
26.22 Exhibits. The terms and provisions of Exhibits "A" through
"E", inclusive, attached to this Lease are made a part of this Lease
for all purposes.
26.23 No Recording ofLease.
-- --------- -------
shall be recorded. Neither this Lease nor any memorandum in
respect of this Lease
ARTICLE 27
SECURITY
27.01 Secunty. (a) Tenant has deposited with Landlord the sum of
$68,329.40 as security for the faithful performance and observance by
Tenant of the terms, provisions and conditions of this Lease; it is
agreed that in the event Tenant defaults in respect of any of the
terms, provisions and conditions of this Lease, including, but not
limited to, the payment of Basic Rent and Additional Charges, Landlord
may use, apply or retain the whole or any part of the security so
deposited to the extent required for the payment of any Basic Rent
and/or Additional Charges and/or any other sum as to which Tenant is
in default or for any sum which Landlord may expend or may be required
to expend by reason of Tenant's default in respect to any of the
terms, covenants and conditions of this Lease, including but not
limited to, any damages or deficiency in the reletting of the
Premises, whether such damages or deficiency accrued before or after
summary proceedings or other re-entry by Landlord. In the event that
Tenant shall fully and faithfully comply with all of the terms,
provisions, covenants and conditions of this Lease, the security shall
be returned to Tenant after the date fixed as the end of the Lease and
after delivery of entire possession of the Premises to Landlord. In
the event of a sale of the land and building, or leasing of the
Building,
XxxXxxx.xxxxxx.~ecurjtje~.g~7~99
-44 -
of which the Premises forms a part, Landlord shall have the right
to transfer the security to the vendee or lessee and Landlord shall
thereupon be released by Tenant from all liability for the return of
such security and Tenant agrees to look to the new Landlord solely for
the return of such security; and it is agreed that the provisions
hereof shall apply to every transfer or assignment made of the
security to a new Landlord. Tenant further covenants that it will not
assign or encumber or attempt to assign or encumber the monies
deposited herein as security and that neither Landlord nor its
successors or assigns shall be bound by any such assignment,
encumbrance, attempted assignment or attempted encumbrance.
(b) The security deposited pursuant to the provisions of this
Article shall be placed in an interest bearing account in a New York
State banking institution having a New York City branch selected by
Landlord, subject to Landlord's sole right to change the depository at
any time to any banking organization having a place of business in the
City of New York, interest earned to become additional security. It is
also understood and agreed that interest at 1.0% per annum of the
security funds shall be retained by Landlord as an administrative fee.
(c) In addition to the security provided herein Tenant shall
deliver to Landlord, simultaneously with the execution of this Lease a
guaranty of all of Tenants obligations hereunder given by FAB Capital
Corporation, in the form annexed here to and made a part hereof as
Exhibit "E".
[END OF PAGE; SIGNATURES FOLLOW ON NEXT PAGEJ
Nksfndg.dupont.gecllritie,.9.7.99
- 45 -
IN WITNESS WIIERE OF, Landlord and Tenant have duly executed this
Lease as of the day and year first above written.
LANDLORD:
NARKIS FUNDING COMPANY, LLC
By:
Managing Manager
TENANT:
DUPONT SECURITIES GROUP, INC.
By:
Name:
Title:
Nksfndg.dupontsecutities~9.7.99 - 46 -
Exhibit "A"
Nksflidg.dupont.seo11tjtj~8.9~7,99
- 47 -
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Exhibit "B"
A. Initial Alterations
Landlord agrees to initially furnish and install, substantially
in accordance with architectural drawings (the "Plans") which shall be
prepared by Landlord, the following "Initial Alterations", to
"Building Standard" specifications:
1. DEMOLITION
Remove partitions and scar patch floor, remaining walls and
ceilings as necessary.
2. INTERIOR PARTITIONS, DOORS, FRAMES AND HARDWARE
(a) Create offices along Broadway frontage: Erect drywall
partitions, consisting of 2-1/2" steel studs with one layer of 5/8"
sheetrock on each side, from the floor to the underside of the hung
ceiling with two (2) sidelights, each approximately 18" x 84" overall
for each office.
(b) Create "trading room": erect drywall partitions, consisting
of 2 1/2" steel sstuds with one layer of 5/8" sheetrock on each side
from the floor to the underside of the hung ceiling, with glass panel
inserts in wood frame from approximately 3' -6' AFF to 1'-O"
(including frame) below hung ceiling in portion of wall between
columns along the westerly side of the room.
(c) Furnish and install metal doors and pressed metal bucks;
doors shall be 7' -0" high by 3'-0" wide, except where specified.
(d) Hardware for each door shall consist of 1-1/2 pair of butts,
one (1) latchset and one( 1) doorstop, with lockset and closer for
main entrance door.
3. AIR CONDITIONING
Furnish and install one (1) ducted supply register and return air
grill in each newly created office (and in trading room if necessary).
3. ELECTRICAL
(a) Light fixtures, which shall include initial tubing, are be 2'
-0" by 4'-0" parabolic type fluorescent light fixtures, mounted in the
hung ceiling grid; switching to be as indicated in the Plans.
(b) Switching will be one (1) switch for each office and open
areas by code.
(c) Furnish and install two (2)115 VAC duplex electric base
receptacles for each office. Furnish and install duplex receptacles in
surface applied molding on the floor in the trading room and north
open area.
(d) Furnish and install one (1) dedicated circuit for Tenant's
copier, if required. Nksfndg.dupont.securitie,.9.7.99
- 48 -
4. PAINTING
Prepare drywall and expQsed metal surfaces to receive paint.
Paint drywall surfaces in Building Standard latex paint (Tenant to
select one (1) color - flat finish). Paint doors & frames, window
frames and other exposed trim in Building Standard paint same color as
flat - semi-gloss enamel finish).
5. FLOORING
Prepare floors to receive Building Standard finish flooring
material. Furnish and install Building Standard wall to wall carpet in
all areas, except computer, storage, pantry room(s), etc. (Tenant to
select one (1) color from samples provided by Landlord). Installation
to be direct cement-down method. In areas not receiving carpeting,
furnish and install VCT floor tiles where indicated on Finish Plan
(Tenant to select one (1) color from samples provided by Landlord).
Furnish and install 4" base molding on walls and columns (Tenant to
select one (1) color from samples provided by Landlord).
6. VENETIAN BLINDS AND RADIATOR ENCLOSURES
(a) Furnish and install one (1) Building Standard 1" venetian
blind in each exterior window where none presently exists; blinds to
be all the same neutral color and finish.
B. SUBSTITUTIONS AND CREDITS
Tenant may specify a substitution of any item of Initial
Alterations, excepting those items for which substitution is
specifically prohibited, provided: (a) such substitution shall be of
like nature and of equal or greater cost and quality than that for
which such substitution was made; and (b) that Landlord shall install
such substitution; and (c) that Tenant shall pay the cost of such
substitution (including reasonable percentages charged by the
contractor for overhead and profit) but Tenant shall be entitled to a
credit for that for which such substitution was made based on
Landlord's cost thereof.
C. ADDITIONAL WORK
At Tenant's written request, Landlord will, at Tenant's sole cost
and expense, perform additional work over and above the Initial
Alterations listed in Paragraph "A", provided: (i) tenant shall pay
for the entire cost of the same (including an amount paid to Landlord
equal to 21 % of such cost representing a charge of 10% for overhead
and 10% for supervision by reason of Landlord's acting as a general
contractor for Tenant) as billed in reasonable intervals during the
progress of said additional work and (ii) the performance of any such
additional work will not (directly or indirectly) delay the
prosecution and completion of the Initial Alterations.
D. TENANT'S PLANS
On or before ________________ (the "Submission Date"), Tenant
will submit to Landlord for its final approval dimensioned
architectural Construction/Electrical Plan # CN-1710, dimensioned
Reflected Ceiling, Lighting & Switching Plan # RC-1710, and Schedule
of Finished Plan # FN-1710. Landlord's architect, or other duly
authorized representative, shall file such plans as shall be required
by law and shall cause them to be approved by the governmental
authorities having jurisdiction thereof, including final sign-off.
Nksfiidg.dupont.securities.9.7.99
- 49 -
On or before _______________ (the "Approval Date"), Tenant will
submit to Landlord for its approval the aforementioned Plans, each of
which Plans Tenant, in accordance with the provisions of the
immediately preceding paragraph, Tenant has approved in the
appropriate location.
If, within fifteen (15) days after the Submission Date Tenant has
not submitted all the Plans to Landlord
E. GENERAL
(a) Any Tenant changes and/or additions, after submission to
and acceptance by Landlord of the Plans, shall be at Tenant's
sole cost and expense, including the cost of engineering drawings
for all heating, ventilating, air conditioning, electrical and
plumbing work. The additional work does not have to be completed
for occupancy.
(b) Tenant may use its own contractors for special or
decorative work such as cabinetry, carpeting, drapes and
furniture, such work to be done by non-conflicting union labor
and Tenant will schedule such work as not to delay the Initial
Alterations.
(c) It is expressly understood and agreed that Landlord's
Work shall not in any way include installation by Landlord or its
contractors or subcontractors of any of Tenant's furniture,
fixtures, equipment or personal property.
F. TENANT'S DELAY
The term "Tenant's Delay" shall mean any delay that Landlord
may encounter in the performance of the Initial Alterations or
Landlord's other obligations pursuant to this Lease, including
but not limited to this Exhibit B, by reason of any act, neglect,
failure or omission by Tenant, its agents, servants, employees,
contractors or sub-contractors, or in the performance of Tenant's
obligations under this Lease, including but not limited to this
Exhibit B, including, without limitation:
(a) Tenant's failure to furnish the Plans to Landlord by the
Submission Date;
(b) Any delay in giving authorization or approvals for the
preparation for or the execution of the Initial Alterations to be
performed as hereinabove provided; (c) Any delay due to changes
made by or on behalf of Tenant in the Plans previously submitted
to and approved by Landlord; (d) Any delay due to Tenant's Work
permitted by Landlord to be performed by Tenant in completing or
finishing the Premises; and
(e) Any delay due to the performance of or necessity of
additional work over and above "Building Standard" with respect
to the Initial Alterations, on work agreed upon, which Tenant has
requested Landlord to perform.
In the event of any Tenant's Delay, Tenant agrees to pay to
Landlord an aggregate amount equal to any increased cost to
Landlord for labor and materials involved in performing the
Initial Alterations. Such increased cost shall be payable by
Tenant upon the rendition of Landlord's xxxx(s) therefor.
Nksfndg.dupoflt.securiucs.9.7.99
- 50 -
G. RENT COMMENCEMENT DATE UNDER LEASE
The commencement of the term of the Lease is provided
therein to occur on __________ Notwithstanding anything to the
contrary contained in the Lease, the commencement date of the
term of the Lease shall occur on the date by which Landlord shall
have substantially completed the Initial Alterations to be
performed within the Premises in accordance wit the terms of this
Exhibit B, ADVANCED, HOWEVER, by the number of days, if any, of
any Tenant's Delay (as hereinabove defmed), provided, however,
that in no event shall such commencement date be earlier than the
original commencement date fixed in the Lease.
Nksfndg.dupoflt.securities.9.7.99
- 51 -
Exhibit "C"
Cleaning Specification
GENERAL:
Contractor shall furnish all labor, supplies, materials,
equipment, insurance and supervision to perform the following
services (the "Services") to Owner's satisfaction at the
frequencies and during the times as specified herein (or as
otherwise directed by Owner or Owner's authorized
representatives). The Services shall include all functions
normally considered a part of workmanlike, satisfactory
janitorial work.
1. OFFICE ROOM SPACE CLEANING:
Ni~tlv
Office areas, file rooms, libraries, conference rooms, etc.
and the corridor space adjacent to these areas shall receive the
following daily cleaning:
(1) Wastebaskets:
Tenants shall maintain separate receptacles for normal
office wastepaper refuse, food waste, recycled paper (for which
Tenant is solely responsible) and trash. Wastebaskets containing
normal office wastepaper refuse and food waste receptacles shall
be emptied nightly. Wastepaper, food waste and trash (i.e. small
tied bundles of cardboard) shall be removed to main disposal
area. Plastic liners shall be used in wastebaskets, food waste
receptacles and cleaners' carts.
(3) Floor Sweepin~:
Tiled floor areas are to be cleaned with a treated sweep mop
to remove visible dirt, dust and litter. Exposed floor areas in
partially carpeted office areas are to be swept in accordance
with the above requirements. Provided Tenant keeps said areas in
a neat orderly condition, spot mop if necessary.
(4) Dn.nkin~ Fountains:
Clean of extraneous material and damp wipe. Spot clean
adjacent floors and walls.
(5) Xxxxxx~:
Top surfaces of furniture (except desks or other furniture
with papers, etc.), cabinets etc., up to waist height shall be
dusted.
Weeklv:
(1) Full rug or carpeted area is to be vacuumed weekly to
remove visible dirt, dust and litter. On remaining weekdays, rugs
and carpets to be spot vacuumed to remove obvious surface dirt
from traffic areas and from readily accessible areas under
furniture.
Monthly:
Top surfaces of window xxxxx, tops of cabinets etc., up to
shoulder height, shall be dusted.
Nksfndg.dupont.secLtrities.97.99
- 52 -
Ouarterly:
(1) Spot clean all wall surfaces.
(2) Dust top of partitions, hand dust all office furniture etc.
(3) Damp wipe both sides of interior glass partitions and office
doors.
(4) Damp wipe all waste receptacles and waste baskets.
(5) Dust baseboards, moldings and trim.
Semi-Annually:
(1) Dust vertical surfaces and walls not reached in daily cleaning.
(2) Dust pictures, frames, charts and other wall hangings.
E. Annually:
(1)
(2)
2. TO"
(A) ____
(1)
(2) Clean with a dry chemically treated cloth all vinyl and
plastic furniture. Vacuum fabric sofas, chairs and cushions.
~ET ROOMS - ('NCLUDES PRIVATE TOILET ROOMS):
Nightly
Floors shall be swept.
Water closets, seats and urinals shall be washed inside and out with a
disinfectant detergent. Seat shall be left in a raised position.
(3) Washbasins shall be thoroughly cleaned.
(4) Mirrors, shelving, dispensers, chromium fixtures, and piping
shall be damp-wiped.
(5) Wall surfaces, partitions, doors and waste receptacles shall
be spot cleaned.
(6) Paper towel waste receptacles shall be emptied.
(7) Paper towels, hand soap, toilet paper, seat cover dispensers
(where provided) shall be serviced nightly. Soap dispensers
will be maintained in a clean condition, free of excess soap,
gum etc. Malfunctions shall be reported to the Building staff.
B. Weekly:
Floors shall be swept and wet mopped or scrubbed with
disinfectant detergent.
C. Monthly:
(1) Wall surfaces, toilet partitions, etc. shall be washed.
- 53 -
Nk~fndg dupont. sccuntie~.9.7.99
(2) Radiators, window xxxxx, ledges, grilles, and stall partitions
shall be dusted.
3. ELEVATOR LOBBIES. CORRIDORS. STAIRCASES:
Daily:
(1)
(2)
Floors in corridors shall be swept with a dry chemically treated cloth or if
carpeted vacuumed. Surfaces within approximately 72 inches from the floor shall
be dusted.
NOTE: Where there are carpeting runners, vinyl runners, etc-, they
shall be picked up and areas underneath cleaned weekly. Rugs,
runners shall be properly cleaned and replaced as required.
Ouarterly:
(1) Strip, scrub, wash and apply floor finish to resi]ient flooring.
(2) Dust all vertical surfaces, wall etc., not reached in daily
cleaning,
(3) Dust all fluorescent light fixtures.
Elevators:
(1) All surfaces in interior of all passenger cars to be
wiped daily including hallway doors safety edges, saddles and
crevices. All bright metal surfaces shall be cared for daily
using appropriate (non-abrasive) materials.
Carpeting shall be vacuumed nightly.
(2)
Stairways:
Monthly:
Stairways shall be swept or vacuumed. All hand rails, doors, walls &
grills to be dusted. All landings steps and rises shall be mopped,
Walls shall be spot cleaned and dusted (low).
Semi-Annually:
All landings. steps and risers shall be scrubbed. Ceilings
to be dusted and light fixture lenses washed dried and replaced.
4. MISCELLANEOUS CLEANING: OUTSIDE ENTRANCE. SIDEWALKS GROUND
A. Daily:
Sweep sidewalks, entrances, delivery areas (weather permitting).
B. Weekly:
Clean entrance door metal work. Remove foreign matter (grease, oil,
mold, etc.).
- 54 -
5. DAYTIME SERVICES:
Da~y:
(1)
(2)
(3)
Lobby to be policed three (3) times daily.
Exterior to be swept once daily (weather permitting).
Graffiti to be removed (when required) during normal Bu~ding business days and
hours (when practical).
(4) Snow removal (when required).
6. MISCELLANEOUS DUTIES:
In addition to the work specified above, the following addihon~ duties
shall be performed by the Landlord or Landlord's contractor in
conjunction with the cleaning operation:
(1) Reporting fires upon observation or after notification by
Tenant, hazardous conditions and items in need of repair (e.g.
leaky faucets, toilet stoppages, etc).
(2) ~osing windows, locking office doors and turning off lights when
not in use. Xxxxxxx.xxxxxx.~curitie8~9.7.99 - 55 -
Exhibit ~'D'~
Building Rules and Re~ulations
1. The sidewalks, driveways, entrances, passages, courts,
lobbies, esplanade areas, elevators, stairways, vestibules,
corridors, halls and other public portions of the Building
("Public Areas") shall not be obstructed or encumbered or used
for any purpose other than ingress and egress to and from a
tenant's premises, and no tenant shall permit any of its agents,
employees, contractors, licensees or invitees (collectively,
"I~tees") to congregate or loiter in any of the Public Areas or
any other part of the Building used in common by other tenants of
the Building. No tenant shall invite to, or permit to visit, its
premises persons in such numbers or under such conditions as may
interfere with the use and enjoyment by others of the Public
Areas. Fire exits and stairways are for emergency use only, and
shall not be used for any other purposes by any tenant, or the
Invitees of any tenant. Landlord reserves the right to control
and operate, and to restrict and regulate the use of; the Public
Areas and the public facilities, as well as facilities furnished
for the common use of the tenants, in such manner as it
reasonably deems best for the benefit of the tenants generally,
including the right to allocate certain elevators for delivery
service, and the right to designate which Building entrances
shall be used by persons making deliveries in the Building. No
doormat of any kind whatsoever shall be placed or left in any
public hall or outside any entry door of a tenant's premises.
2. No awnings or other projections shall be attached to the
outside walls (or inside atrium walls) or windows of the
Building. No curtains, blinds, shades or screens shall be
attached or hung in, or used in connection with, any window or
door of a tenant's premises, without the consent of Landlord.
Such curtains, blinds, shades or screens must be of a quality,
type, design and color, and attached in the manner, reasonably
approved by Landlord. No tenant shall have the right to remove or
change curtains, shades, blinds or other window coverings within
its premises without Landlord's consent. In order that the
Building can and will maintain a uniform appearance to those
persons outside of the Building, each tenant occupying the
perimeter areas of the Building shall (a) use only building
standard lighting in areas where lighting is visible from the
outside of the Building and (b) use only building standard blinds
in window areas which are visible from the outside of the
Building.
3 No sign, insignia, advertisement, lettering, notice or
other object shall be exhibited, inscribed, painted or affixed by
any tenant on any part of the outside or inside of its premises
or the Building or on corridor walls without the prior consent of
Landlord. Signs on or outside each entrance door of a tenant's
premises shall conform to building standard signs. Such signs
shall, at the expense of the applicable tenant, be inscribed,
painted or affixed by sign makers and in a location approved by
Landlord. In the event of the violation of the foregoing by any
tenant, Landlord may remove the same without any liability, and
may charge the expense incurred in such removal to the tenant or
tenants violating this Rule. Interior signs, elevator cab
designations, if any, and lettering on doors and the Building
directory shall, if and when approved by Landlord, be inscribed,
painted or affixed for each tenant by Landlord, at the expense of
such tenant, and shall be of a size, color and style reasonably
acceptable to Landlord.
4 Neither the sashes, sash doors, skylights or windows that
reflect or admit light and air into the Public Areas in the
Building nor the HVAC vents and doors shall be covered or
obstructed by any tenant, nor shall any bottles, parcels or other
articles be placed on the window xxxxx or on the peripheral
heating enclosures. Whenever the HVAC systems are in operation,
such tenant shall cause the shades, blinds or other window
coverings to be drawn, as required because of the Position of the
sun.
5 No showcases or other articles or property shall be put by
any tenant in front of or affixed to any part of the exterior of
the Building, nor placed in the Public Areas.
6. No acids, vapors or other harmful materials shall be
discharged, or permitted to be discharged, into the waste lines,
vents or flues of the Building. The water and wash closets and
other plumbing fixtures shall not be used for any purposes other
than those for which they were designed and constructed, and no
- 56 -
sweepings, rubbish, rags, acids or other foreign substances
shall be thrown or deposited therein. Nothing shall be swept or
thrown into the Public Areas or other areas of the Building, or
into or upon any HVAC vents or registers or plumbing apparatus in
the Building, or upon adjoining buildings or land or the street.
The cost of repairing any damage resulting from any misuse of
such fixtures, vents, registers and apparatus and the cost of
repairing any damage to the Building, or to any facilities of the
Building, or to any adjoining building or property, caused by any
tenant, or the Invitees of such tenant, shall be paid by such
tenant. Any cuspidors or similar containers or receptacles shall
be emptied, cared for and cleaned by and at the expense of the
tenant.
7 Except for the making of customary office decorations in
its premises in accordance with its lease, no tenant shall xxxx,
paint, drill into or in any way deface any part of its premises
or the Building. No boring, cutting or stringing of wires shall
be permitted, except with the prior written consent of; and as
directed by, Landlord. No telephone, telegraph or other wires or
instruments shall be introduced into the Building by any tenant
except in a manner approved by Landlord. No tenant shall lay
linoleum, or other similar floor covering, so that the same shall
come in direct contact with the floor of its premises, and, if
linoleum or other similar floor covering is desired to be used,
an interlining of builder's deadening felt shall be first affixed
to the floor, by a paste or other material, soluble in water, the
use of cement or other similar adhesive material being expressly
prohibited.
8. No bicycles, vehicles, animals (except seeing eye dogs as
legally required), fish or birds of any kind shall be brought
into, or kept in or about, a tenant's premises.
9 No noise, including, but not limited to, music, the
playing of musical instruments, recordings, radio or television,
which, in the judgment of Landlord, might disturb other tenants,
shall be made or permitted by any tenant. Nothing shall be done
or permitted by any tenant which would unreasonably or materially
adversely impair or interfere with the use or enjoyment by any
other tenant of any other space in the Buildin~.
10. Nothing shall be done or permitted in a tenant's
premises, and nothing shall be brought into, or kept in or about
a tenant's premises, which would unreasonably or materially
adversely affect, impair or interfere with any of the Building
Equipment or the proper and economical rendition of Landlord's
Services in the Building or to a tenant's premises, or which
would cause discomfort, annoyance or inconvenience to Landlord or
any other tenant, nor shall there be installed by any tenant any
HVAC, electrical or other equipment of any kind which, in the
reasonable judgment of Landlord, might cause any such impairment
or interference. No tenant, nor the Invitees of any tenant, shall
at any time bring or keep upon its premises any inflammable,
combustible, noxious or explosive fluid, chemical or substance.
11. No additional locks or bolts of any kind shall be placed
upon any of the doors or windows by any tenant, nor shall any
changes be made in locks or the mechanism thereof; unless
Landlord is furnished with keys therefor or other means of access
thereto. Duplicate keys for a tenant's premises and toilet rooms
shall be procured only from Landlord and Landlord may charge
Tenant therefor. Each tenant shall, upon the expiration or sooner
termination of its lease, turn over to Landlord all keys to
stores, offices, storage areas and toilet rooms, either furnished
to, or otherwise procured by, such tenant, and in the event of
the loss of any keys furnished by Landlord, such tenant shall pay
to Landlord the cost of replacement locks. Notwithstanding the
foregoing, Tenant may install a security system in the Premises
which uses master codes or cards instead of keys provided that
Tenant shall provide Landlord with the master code or card for
such system.
12. All removals, the carrying in or out of the Building and
the movement from floor to floor within the Building of any
safes, freight, furniture, packages, boxes, crates or any other
object or matter of any description, shall take place only during
such hours, in such elevators and under such restrictions as
Landlord may from time to time determine, which may involve
overtime work for Landlord's employees. Tenant shall reimburse
Landlord for extra costs incurred by Landlord in connection
therewith. No such materials or objects shall be transported in
passenger elevators without Landlord's prior written consent in
each instance.
- 57 -
(a)Plans approved or returned with comments (such approval
or comments shall not constitute (i) a waiver of Department of
Buildings approval, (ii) approval of other jurisdictional
agencies or Landlord's approval of the Scope of Work proposed by
or on behalf of Tenant).
(b)Signed application forms referred to in 8.02 (c), above,
providing proper submissions have been made.
(c)Covering transmittal letter.
3. Tenant, with Landlord's cooperation, if reasonably
required, shall obtain Department of Buildings approval of plans
and a permit from the Department of Buildings where required by
law for the work. Tenant shall be responsible for keeping current
all permits. Tenant shall submit copies of all approved plans and
permits to Landlord and shall post the original permit on the
Premises prior to the commencement of any work. All work, if
performed by a contractor or subcontractor, shall be subject to
reasonable supervision and inspection by Landlord's
representative. Such supervision and inspection shall be at
Tenant's sole expense and Tenant shall pay Landlord's reasonable
charges for such supervision and inspection.
C. Requirements and Procedures
I. All structural and floor loading requirements shall be
subject to the prior approval of Landlord's structural engineer.
2. All mechanical (HVAC, plumbing and sprinkler) and
electrical requirements shall be subject to the approval of
Landlord's mechanical and electrical engineers. When necessary,
Landlord will require engineering and shop drawings, which
drawings must be approved by Landlord before work is started.
Drawings are to be prepared by Tenant and all approvals shall be
obtained by Tenant.
3. All demolition shall be monitored by Landlord's
representative at Tenant's expense.
4. Landlord shall charge Tenant for elevator service for
construction work in accordance with Landlord's then Building
standard rates therefor. Tenant shall make arrangements for each
such elevator use with Landlord at least seventy-two (72) hours
in advance. No material or equipment shall be carried under or on
top of elevators. If an engineer is required, such engineer shall
be paid for by Tenant promptly after receipt of a xxxx therefor.
5. If shutdown of risers and mains for electrical, HVAC,
sprinkler and plumbing work is required, such work shall be
monitored by Landlord's representative at Tenant's expense. No
work will be performed in building mechanical equipment rooms
without Landlord's approval and shall be monitored by Landlord at
Tenant's expense.
6. Tenant's contractor shall:
(a)have a Superintendent or Xxxxxxx on the Premises at all
times when work is being performed and at reasonable times before
and after as appropriate;
orderly; (b) police the job at all times, continually
keeping the Premises broom-clean and (c) maintain cleanliness and
protection of all areas, including elevators and lobbies;
(d)protect the front and top of all peripheral HVAC units
and thoroughly clean them at the completion of work;
Nksfi)dgdupont.securities.9.7.99 - 61 - (e)block off supply and
return grills, diffusers and ducts to keep dust from entering
into the Building and/or Premises air conditioning system(s); and
(fi avoid the disturbance of other tenants.
(g)comply with all life, health and safety codes, rules and
regulations and requirements and/or recommendations made by any
insurance carrier.
7. If Tenant's contractor is negligent in any of its
responsibilities, Tenant shall be charged for the cost of
corrective work done by Building personnel or others as Landlord
shall designate in addition thereto and/or in substitution
therefor.
8. All equipment and installations must be equal to the
standards of the Building. Any deviation from Building standards
will be permitted only if indicated or specified on the plans and
specifications, samples provided, if requested, at no cost to
Landlord and approved in advance by Landlord.
9. A properly executed air balancing report signed by a
qualified professional engineer shall be submitted to Landlord
upon the completion of all HVAC work.
10. Upon completion of the Alterations, Tenant shall submit
to Landlord properly executed documents indicating total
compliance and final approval by the Department of Buildings of
the Building Notice or Alteration accompanied by an amended
certificate of occupancy for the Building, in form satisfactory
to Landlord.
11. Tenant shall submit to Landlord a final "as-built" set
of drawings showing all items of the Alterations in full detail.
12. Additional, differing or inconsistent provisions in the
lease, if any, will be applicable and will take precedence.
D. Special Requirements Reizardin~ Local Law #5/73 (As
Amended)
1. Tenant acknowledges being advised that the Building has
an active Modified Class E Fire System ("Class E System"). Tenant
shall notify its contractors and subcontractors, as well as all
persons and entities who shall perform or supervise any
alteration or demolition within the Premises, of such facts prior
to the commencement of any work.
2. Demolition by Tenant of all or any portions of the
Premises shall be carried out in such manner as to protect
equipment and wiring of Landlord's Class F System.
3. Landlord, after receipt of Tenant's notice of demolition,
and at Tenant's expense, shall secure and protect and/or require
Tenant to secure and protect Building equipment connected to the
Class F System in the Premises to be demolished.
4. Landlord, at Tenant's expense, shall and /or require
Tenant to make such additions and alterations within the
requirements of Local Law #5/73 (as amended) to the existing
Class F System as may be necessary by reason of alterations made
within the Premises either by or on behalf of Tenant or by
Landlord, as part of the initial installation, and work, if any,
that Landlord is required to perform pursuant to the provisions
of this lease or any work letter or leasehold improvements
agreement entered into by Landlord and Tenant.
Nksfndg.dupon~secutities.9.7.99
- 62 -
5. Landlord's contract fire alarm service personnel or such
other contractor approved by Landlord shall be the only personnel
permitted to adjust, test, alter, relocate, add to, or remove
equipment connected to the Class E System. All of the foregoing
shall be performed at the Tenant's sole cost and expense.
6. Landlord, at Tenant's expense, shall repair or cause
Tenant to have repaired, any and all defects, deficiencies or
malfunctions of the Class B System caused by Tenant's alterations
or demolition of the Premises. Such expense may include expenses
of engineering, supervision and standby fire watch personnel that
Landlord deems necessary to protect the Building during the time
such defects, deficiencies and malfunctions are being corrected.
7. During such times that Tenant's alterations or demolition
of the Premises require that fire protection afforded by the
Class B System be disabled, Tenant, at Tenant's expense, shall
maintain fire watch service deemed suitable to Landlord.
8. Tenant and Tenant's architect shall familiarize
themselves with and be aware of Local Law ~5/73 and all
amendments thereto with regard to smoke control,
compartmentation, and areas of safe refuge. Tenant shall fully
com~y with these requirements. Landlord, at Landlord's option,
may withhold approval of Tenant's alterations or demolition if
such requirements are not met to Lan~ord's satisfaction.
9. Should Tenant desire to install its own internal fire
alarm system, Tenant shall , using o~y Landlord's fire alarm
contractor or such other contractor approved by Landlord, request
Landlord to connect such system to the Class B System at Tenant's
expense in such manner as prescribed by the Landlord. Tenant
shall, at Tenant's expense, have such internal fire alarm system
approved by governing agencies having jurisdiction, and shall
submit to the Landlord an approved copy of plans of such system,
before initiating any installation of such system.
10. In the event Tenant shall install its own internal fire
alarm system within the Premises and in such event (as required
by law) connects same to the Class F System at Tenant's sole cost
and expense, Tenant shall also reimburse Landlord for costs of
contracting for the maintenance and supervision of Tenant's
internal fire alarm system with the company providing such
services for the Class B System.
See next page for Insurance Requirements for Alterations I
Nksfndg.dupont.securities~9.7.99
- 63 -
Insurance Requirements for Alterations
Each contractor or subcontractor (hereinafter called "Contractor')
shall provide and maintain at its own expense, until completion of the Work, the
following insurance:
(a)Workers' Compensation and Employers'
Liability Insurance covering each and every xxxxxxx employed
in, about or upon the Work, as provided for in each and every
statute applicable to Workers' Compensation and Employers'
Liability Insurance.
(b)Comprehensive General Liability Insurance
Including Coverage for Completed Operations, Broad Form
Property Damage "XCU" exclusion if any deleted, and
Contractual Liability (to specifically include coverage for
the indemnification clause of this Agreement) for not less
than the following limits:
Total Combined Single Limit (primary and/or umbrella): $5,000,000
(written on a per occurrence basis)
(c)Comprehensive Automobile Liability
Insurance (covering all owned, non-owned and/or hired motor
vehicles to be used in connection with the Work) for not less
than the following limits:
Total Combined Single Limit (primary and/or umbrella). $5,000,000 (written
on a per
occurrence basis)
Contractor shall furnish a certificate from its insurance carrier or
carriers to Landlord before commencing the Work, naming Landlord and its
managing agent, as additional insureds and showing that it has complied with the
above requirements regarding insurance, and providing that the insurer will give
Landlord thirty (30) days' prior written notice of the cancellation of any of
the foregoing policies.
limits of insurance:
3. Contractor shall require all of its subcontractors engaged in the Work to
provide the above
Upon the request of Landlord, Contractor shall require all of its
subcontractors engaged in the Work to execute an Insurance Requirements
agreement in the same form as this Agreement.
Agreed to and Accepted:
Tenant:
By:
Title
Tenant's Contractor:
By:
Title
Nksfndg.dupont.secuijtjes.9~7~99
- 64 -
Exhibit "E"
Guaranty
~~sffldg.dupont.secunties.9.7~99
- 65 -
Form W-9 (Rev. tanuary 1 99~)
Oepartmeri of the ~easury
Intl at Revenue SeNice ,rr
0
c
Request for Taxpayer
Identification Number and Certification
Give this form to the requester. Do NOT send to IRS. flame (It (Olni names,
list first and circle lht name of the person or enlity whose number you enter in
Parl I below. Ste Instrustlens on pa~t 2 It your name ha: ehan~td,)
8us~ness name (Sole proprietors see inStructions on page 2.) (If you are
exempt from backup withholding, comptete this form and enter "EXEMPT" in
Part It below.)
Address (number and street) City, state, and ZIP code List account number(s)
here (optional)
Tax a er Identiftcatlon Number IN For Payees Exempt From Backup
---------------------------------- Enter~your T(N~~in the appropriate box. For
_______________________________ Withho)ding (See Exempt Payees individua)s, this
is your soda) security number Social security number and Payments on page 2) (55
N ). F9r sole p?oprietors, see the instructions ---------------------- on p~age
2. Fpr other entities, it is your employer I I I ~ identification number - ----
- (EIN). If you d6 not have a OR Requester 5 name and address (optional) number,
see How To Obtain a TIN below. _____________________________ Note; !~ the
account is in more than dn'e name, Employer identIfIcation number see the chart
on page 2 for guidelines on whose I - number to enten
Certiflcatlon.-Under penalties of perjury, I certify that:
1. The number shown on this form is my correct taxpayer identification number
(or I am waiting for a number to be issued to me), and
2. I am not subject to backup withholding because: (a) I am exempt from backup
withholding, or lb) I have not been notified by the Internal Revenue ServIce
that I am subject to backup withholding as a result of a failure to report
all interest or dividends, or (c) the IRS has notified me that I am no
longer subject to backup withholding.
Cert(flcatlon lnstructlons.-You must cross out item 2 above if you have been
notified by the IRS that you are currently subiect to backup withholding because
of underreporting interest or dividends on your tax return. For real estate
transactions, item 2 does not apply. For mortgage interest paid, the acquisition
or abandonment of secured property, contributions to an individual retirement
arrangement (XXX), and generally payments other than interest and dividends, you
are not required to sign the Certification, but you must provide your correct
TIN.
(Also see Signing the Certification on page 2.)
Sign Here Signature ~ Date ~ Section references are to the Internal Revenue
60 days to obtain a TIN and furnish it to the dividends, broker and barter
exchange Code. requester. It the requester does not receive your transactions,
rents, royalties, nonemployee Pur'ppae of Form.-A person who is required to TIN
within 60 days, backup withholding, if compensation, and certain payments from
file an information return with the IRS must applicable, will begin and continue
until you fishing boat operators, but do not include real obtain. your correct
TIN to report income paid to furnish your TIN to the requester, For reportable
estate transactions. you, real estate transactions, mortgage interest Interest
or dividend payments, the payer must If you give the requester your correct TIN,
you paid, the acquisition or abandonment of exercise one of the following
options concerning make the appropriate certifications, and report secured
property, or contributions you made to backup withholding during this 60-day
period. all your taxable interest and divIdends on your an XXX. use Form W-9 to
furnish your correct Under option (1), a payer must backup withhold tax return,
your payments will not be subiect to TIN to the requester (the person asking you
to on any witndrawals you make from your account backup withholding. Payments
you receive will furnish your TIN) and, when applicable, (1) to after 7 business
days after the requester be subject to backup withholding if: certify that the
TIN you are fumishing Is correct receives this form back from you. Under option
i. You do not furnish your TIN to the (or that you are waiting for a number to
be (2), the payer must backup withhold on any requester, or issued), (2) to
certify that you are not sublect to reportable interest or dividend payments
made backup withholding, and (3) to claim exemption to your account, regardless
of whether you make 2. The IRS notifies the requester that you from backup
withholding If you are an exempt any withdrawals. The backup withholding under
furnished an incorrect TIN, or payee. Furnishing your correct TIN and making
optIon (2) must begin no later than 7 business 3. You are notified by the IRS
that you are the appropriate certifications will prevent certain days after the
requester receives this form back. subiect to backup withholding because you
payments from being subject to backup Under option (2), the payer is required to
refund failed to report all your interest and dividends on withholding. the
amounts withheld if your certified TIN is your tax return (for reportable
interest and Note: If a requester gives you ~e form other than received within
the 60-day period and you were dividends only), or n a W-9 to request your TIN,
you must use the of subject to backup withholding during that 4, You do not
certify to the requester that you requester's form. period. are not sublect to
backup withholding under 3 How To Obtain a TIN.-lf you do not have a Note:
Writing "Applied for" on the form means above (for reportable interest and
dividend TIN, apply for one immediately. To apply, get that you have already
applied for a TIN OR that accounts opened after 1983 only), or Form SS-6,
Application for a Social Security you intend to apply for one in the near
future. 5. You do not certify your TIN. This applies Card (for individuals),
from your local office of As SOoh as you receive your TIN, complete only to
reportable interest, dividend, broker, or the Social Security Administration, or
Form another Form W-9, include your TIN, sign and barter exchange accounts
opened xxxx 1983, or 55-4, Application for Employer Identification date the
form, and give it to the reque.~ter, broker accounts considered inactive In
1983. Number (for businesses and all other entities), What Is Backup
Withholding?- Persons making Except as explained in 5 above, other from your
local IRS office. certain payments to you after 1992 are required reportable
payments are subject to backup To complete Form W-9 if '/ou do not have,a to
withhold and pay to the IRS 31% of such withholding only If 1 or 2 above
applies. Certain TIN, write "Applied fo~ in xxx.xxxxx tor~the TIN payments under
certain conditions. This is called payees and payments are exempt from backup in
Part I, sign and date the form, and give it to backup withholding." Payments
that could be withholding and information report, mg. See the requester.
Generally. you will then have.' subiect to backup withholding include interest,
Psyees and Payments Exempt From
aMIgO 224 4ev. 1~n2
Form W-9 (Rev. 1.93)
