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Exhibit 10.20
LEASE
THIS LEASE, made this 23 day of February, 2000, between
A/A REALTY ASSOCIATES with offices at 0000 Xxxxx Xxxx Xxxx, Xxxxxxxxxx,
Xxxxxxxxxxxx 00000, hereinafter called "LANDLORD",
AND
BISYS INSURANCE SERVICES, INC. hereinafter called "TENANT".
ON
Property situate in the Township of Lower Xxxxxx, County of Dauphin, and
Commonwealth of Pennsylvania in Building known as Crums Mill IV office Building,
having an address of 0000 Xxxxx Xxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000.
WITNESSETH: That in consideration of the mutual covenants and agreements
herein contained, it is agreed by and between Landlord and Tenant as follows:
1. BASIC PROVISIONS.
This Section 1 is an integral part of this Lease and all of the terms are
incorporated into this Lease in all respects. In addition to the other
provisions which are elsewhere defined in this Lease, the following, whenever
used in this Lease, with the first letter of each word capitalized, shall have
the meanings set forth in this Section, and only such meanings, unless such
meanings are expressly contradicted, limited or expanded elsewhere:
A. BUILDING NAME: CRUMS MILL IV OFFICE BUILDING
B. LANDLORD'S MAILING ADDRESS: 0000 Xxxxx Xxxx Xxxx
Xxxxxxxxxx, XX 00000
C. TENANT'S MAILING ADDRESS: 0000 Xxxxx Xxxx Xxxx
Xxxxxxxxxx, XX 00000
D. PREMISES (Sect.3): As shown on Exhibit A - Landlord will construct a
building with a total square footage of 75,000 Square Feet gross floor area, of
which Tenant will lease 61,602 square foot, including its proportionate share of
common area consisting of the entire second and third floors and suites A and B
on the first floor thereof, on a portion of 9.234 acres situate on the southwest
quadrant of the intersection of Colonial Road and Crums Mill Road, Lower Xxxxxx
Twp., Harrisburg, Pennsylvania. Said building will be in accordance with the
plans and specifications of Mass Construction Company, which plans,
specifications and drawings are incorporated herein, marked Exhibit "A" and
attached to this Lease. For definition,
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"Premises" shall include the 61,602 square feet of the Building and the right
to use the parking area and entrances thereto, and all improvements thereon.
E. PERMITTED USE (Sect 5) : Any lawful purpose
F. GUARANTOR: None
G. TERM (Sect. 4): Ten (10) Years and three (3) months
H. "Commencement Date" shall be: The last to occur of (i) the date the
Premises are Ready for Occupancy as set forth in 2(C) hereafter; or (ii) the
date of Occupancy Permit issuance as required by the governing Municipalities,
and the Premises and the balance of the building are Ready for Occupancy.
Subject to the provisions of Section 9.A. hereof, in the event the Commencement
Date had not occurred, on or prior to 3/31/2001, Tenant may cancel this Lease by
written notice to Landlord.
Expiration shall be at midnight on the last day of the final month of the
term.
I. ANNUAL BASE RENTAL (Sect. 7):
1. The Annual Base Rental for the first two (2) years of the Lease,
which rent shall commence three (3) months after surrender of possession, shall
be $14.75 Per Square Foot ($908,629.50 per annum), plus additional rent as set
forth herein.
2. After the initial two (2) year term of the Lease the rental rate
shall increase two (2%) percent each year.
3. In the event Tenant exercises its option to renew said Lease as
set forth herein, the annual rental shall likewise be increased by two (2%)
percent each year.
J. TENANT FIT-OUT:
Landlord has furnished Tenant a copy of its anticipated construction
costs attributable to subject Premises. Included in said costs are the Tenant
fit-out expenses of $15.00 per square foot, or a total of $924,030.00. The
parties agree that no changes or alterations to Exhibit "A" will be permitted
except in writing executed by each of the parties hereto. In the event the
projected fit-out expense of $15.00 per square foot or $924,030.00 are exceeded
due to changes or alterations at the request of Tenant, or due to additional
requirements of any political subdivision, Landlord will pay for said charges
and expenses, and Tenant shall reimburse Landlord within thirty (30) days of
presentment to Tenant of an itemization of all Tenant fit-out expenses.
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K. SECURITY DEPOSIT: Waived.
L. OPERATING EXPENSES: Tenant agrees to pay all Operating Expenses as
defined in this Lease which are the responsibility of Tenant. Tenant also agrees
to pay all taxes and insurance attributable to the Premises, including all
utilities and the cost of insuring its own personal property and its own cost of
telephone and telecommunications service. In the event, however, Landlord leases
any of the vacant space to a third party, the operating expenses of Tenant shall
be the proportion of square footage occupied by Tenant to the total lease area
OF 71,550 square feet.
2. DEFINITIONS.
This Section 2 is an integral part of this Lease and all of the following
terms are incorporated into this Lease in all respects. In addition to the other
definitions which are elsewhere defined in this lease, the following, whenever
used in this Lease, with the first letter of each word capitalized, shall have
the meanings set forth in this Section and only such meanings, unless such
meanings are expressly contradicted, limited or expanded elsewhere.
A. "Building Area" shall mean the area on all levels of the building
designed for the exclusive use and occupancy of Tenant, which is 61,602 square
feet and shall include the related improvements for the purposes of this Lease
including but not limited to reserved the parking for no less than 289 vehicles
and the right to use all delivery areas and access ways.
B. If Tenant desires to make any revisions to the plans and specifications
which are not consistent with or a logical extension of the general synopsis
attached hereto as Exhibit B, then Tenant will so notify Landlord and Landlord
will then ask its general contractor to prepare a cost estimate for the making
of such changes. Landlord will promptly notify Tenant of any increased cost or
savings resulting from such changes, and Tenant will have the right to require
Landlord to cause such change to be made to the Plans; provided, however, that
such changes will not unreasonably affect the structural integrity of the
Building. If the aggregate of all such changes results in a net increase to the
cost of the construction of the improvements (net of any savings), then Tenant
will reimburse such net increase to Landlord within 30 days after Landlord has
incurred and paid the costs in question and has sent a written demand for the
payment thereof to Tenant. If any change requested by Tenant will, in the
reasonable judgment of Landlord's contractor, cause a delay in the anticipated
date for the substantial completion of construction of the Building, then
Landlord will so ,notify Tenant of such delay and, if Tenant notifies Landlord
within ten days thereafter that it nonetheless requires that the requested
change be made, then the contemplated
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substantial completion date will be deferred only for such period of time
necessary to complete the work as modified.
C. "Governing Municipality" shall mean the State or Commonwealth, County,
and Local Governing Bodies,including without limitation, the Township, Borough,
Xxxx or District, having jurisdiction over the area in which the building is
located.
D. "Ready for Occupancy" shall mean the date on which Landlord has
substantially completed all work to be performed by it in accordance with
Exhibit "B". The Premises shall be deemed substantially complete provided only
minor or insubstantial details of the construction, decoration or mechanical
adjustments remain to be done and the Tenant can operate Tenant's business in
the entire Premises.
E. "Lease Year" The first Lease Year shall commence on the first (1st) day
of the Term and shall end at the close of the twelfth (12th) full calendar month
following the commencement of the Term; thereafter, a Lease Year shall consist
of successive periods of twelve (12) calendar months. Any portion of the Term
remaining at the end of the last full Lease Year shall constitute the final
Lease Year and rentals and charges shall be apportioned accordingly.
F. "Taxes" shall mean for any calendar year, all real estate and other ad
valorem taxes and assessments levied against the Premises, or any payments in
lieu thereof, including the expense of contesting the amount or validity of any
such Taxes, charges or assessments. Such expense to be applicable to the period
of the item contested.
G. "Land" shall mean the real property consisting of 9.234 acres upon
which the Building and related improvements are to be constructed by Landlord.
3. PREMISES AND IMPROVEMENTS.
Tenant leases 61,602 square foot of the Building and the right to use the
Land and all improvements thereon, including parking area for Tenant's exclusive
use, subject however to an easement for ingress and egress to Landlord and any
tenant of Landlord, access to include the area of the Building leased to any
third party or access to any additional buildings Landlord may construct on the
balance of 9.234 acre lot. Landlord shall have the right to construct any other
building and/or improvements on any portion of the Land not utilized by Tenant
during the term of this Lease. Nothing herein contained however shall prohibit
Tenant from adding antennae or other communication equipment to the building at
the sole expense of Tenant.
[GRAPHIC OF INITIAL CIRCLE]
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Outline specifications describing the Improvements to be provided and
installed by Landlord in the premises at Landlord's expense, and the
Improvements to be provided and installed by Tenant at its expense, have been
agreed to be the parties as set forth is Exhibit "B" attached hereto and made a
part of this Lease.
Landlord agrees that it will, within a reasonable period of time after
execution of this Lease, take all steps necessary to subdivide the portion of
9.234 acres which is not being utilized for the erection of the building and
appurtenances leased to Tenant, the cost of which subdivision will be borne by
Landlord.
In the event Landlord wishes to erect a building or buildings on the
subdivided property, Landlord agrees to erect said building or buildings in a
manner which will not be detrimental aesthetically to the building leased to
Tenant, and which will be of a same or similar quality of construction. Landlord
will submit plans to Tenant at least sixty (60) days prior to construction of an
additional building or buildings for Tenant's review and comments.
4. TERM & EXPIRATION.
A. The term of this Lease (the "Term"), shall commence on and shall be for
the number of years set forth in Section 1(G).
B. Subject to Tenant's specific right to cancel in Section l(H) hereof, if
the Premises are not "Ready for occupancy" on or before 3/31/2001, the
Commencement Date of the Term of this Lease shall be the date upon which Tenant
is tendered delivery of the possession of the Demised Premises and the building
Ready for occupancy in accordance with Section 1(H), or the date Tenant waives
any requirement hereunder and takes possession of the Demised Premises. The
Lease Term shall expire at 12:00 o'clock, Midnight, on the last day of the final
calendar month which completes the number of year(s)and months set forth in
Section 1(G).
As soon as determined, Landlord and Tenant shall confirm in writing
the Commencement Date and expiration dates, and that the Lease is in effect and
that Tenant is in occupancy by signing the Commencement Date agreement attached
hereto as Exhibit "C".
C. This Lease shall expire in accordance with Section 1(H) without the
necessity of any notice from either Landlord or Tenant to terminate the same,
and Tenant waives notice to vacate the Premises and agrees that Landlord shall
be entitled to the benefit of all provisions of law respecting the summary
recovery of possession of the Premises from a Tenant holding over to the same
extent as if statutory notice had been given. For the period of
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six months prior to the expiration of the Term, or any renewal thereof, and
after providing prior reasonable notice to Tenant, and always in the presence of
a representative of Tenant, Landlord may show the Premises and all the parts to
prospective tenants during normal business hours, provided that Tenant reserves
the right to refuse any such showing that would interfere with Tenant's business
activities.
D. If Tenant shall be in possession of the Premises at the end of the
original Term, or any optional extension period, in the absence of any agreement
extending the Term, the tenancy under this Lease shall become month to month,
terminable by either party on thirty days prior written notice. After 90 days of
such occupancy, the Annual Base Rent as defined in Section 6 shall become twice
the amount.
E. Notwithstanding anything in this Lease to the contrary, the
Commencement Date shall not occur unless and until Landlord has delivered to
Tenant a title insurance policy in form and content acceptable to Tenant and
indicating good and marketable title vested in Landlord, together with an
endorsement covering Tenant's leasehold interest in the Premises.
5. USE OF THE PREMISES.
A. Tenant shall use the Premises as permitted in Section 1(E). Tenant
shall have access to the Premises 24 hours each day, 365 days each year.
6. RENTALS PAYABLE.
Tenant covenants and agrees to Pay to Landlord as Rentals, sometimes
referred to as "Rent" or "Rental", for the Premises, the following, namely:
A. The Annual Basic Rental set forth in Section 1(1),and
B. Any and all additional sums, charges or amounts of whatever nature to
be paid by Tenant to Landlord in accordance with the Terms of this Lease whether
or not such sums, charges or amounts are referred to as "additional rental."
7. ANNUAL BASIC RENTAL AND ADDITIONAL RENT.
Annual Basic Rental, as set forth in Section 1(1), shall be payable in
equal monthly installments in advance, without demand and/or setoff, on the
first (1st) day of each full calendar month during the Term, the first such
payment to include any prorated Annual Basic Rental for the period from the
date of the
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commencement of the Term to the first day of the first full calendar month in
the term.
8. PAYMENT OF RENTALS.
A. Except as herein permitted Tenant covenants to pay all Rentals when due
and payable, without any setoff, deduction or prior demand. Any additional
rental provided for in this Lease which shall become due, shall be payable on
the later of thirty (30) days after request therefor or the date upon which and
with the next installment of Annual Basic Rental. Rentals required of Tenant
shall be paid or delivered to Landlord at the management office of Landlord or
at such other place as Landlord may, from time to time, designate in writing to
Tenant.
B. Any payment by Tenant or acceptance by Landlord of a lesser amount than
shall be due from Tenant to Landlord shall be treated as a payment on account.
C. Anything in this Lease to the contrary notwithstanding, at Landlord's
option, Tenant shall pay as additional rent, a late charge in the amount of one
(1%) percent of the outstanding balance per month for any rental payment not
made within seven days of the due date.
9. LANDLORD'S IMPROVEMENTS; READY FOR OCCUPANCY.
A. Subject to unavoidable delays due to labor disputes, Acts of God or the
public enemy, governmental regulations or controls, fire or other conditions or
causes beyond its reasonable control, Landlord will as promptly as possible let
contracts for and execute the performance of all work to be performed by it in
accordance with Exhibits "A" and "B". However, no delay for any reason shall
extend the Commencement Date beyond March 31, 2001.
B. On the Commencement Date as defined in Section 1(G), Tenant shall be
deemed to have: (a) accepted the Premises; (b) acknowledged that the Premises
are in the condition called for as "Ready for Occupancy" (as defined in Section
2{D}); and (c) agreed that the obligations of the Landlord under Exhibit "B"
have been fully performed, except for (x) any punch list items which shall be
set forth in writing by Tenant within a reasonable time after the Commencement
Date, and (y) any latent defects that are not ascertainable by a visual
inspection. Landlord shall immediately upon execution of this lease (i) prepare
a bid solicitation package for the Building and shall deliver a copy thereof to
Tenant and (ii) secure all licenses and permits required for construction of
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the Building including the Premises. Tenant shall have the right to grant the
construction contract for the Building to the contractor of its choice subject
to the following:
(i) Landlord and Landlord's contractors will perform all work in a
manner that will maintain the integrity of all utilities serving the Land, and
the Building.
(ii) Landlord shall use only new and first-class materials and will
perform all work in a good and workmanlike condition. All materials, equipment,
fixtures, systems, installations and construction shall be compatible with and
of a quality equal or greater than currently exists in Landlord's adjacent
properties and projects.
(iii) Landlord will obtain and pay for all permits, approvals,
licenses and inspections required for construction and occupancy, including any
special permits or approvals relating to the Building and the Premises.
(iv) Builder's Risk, Xxxxxxx'x Compensation, Public Liability and
Property Damage insurance, shall be provided and at all times maintained by
Landlord or its contractors engaged in the completion of the Building.
Certificates for such insurance shall be furnished to Tenant prior to the
commencement of any Tenant work by Tenant in the Building and the Premises.
(v) Tenant shall not be liable in any way for any injury, loss or
damage which may occur to the Building during the construction thereof.
(vi) Landlord shall guaranty all work on the Building and the
Premises for a period of two (2) years from and after the Commencement Date.
(vii) Landlord shall construct the Building, the Tenant improvements
and related improvements at Landlord's cost and expense.
C. Prior the Commencement Date the architect who prepared the Landlord's
plans and specifications shall deliver to Tenant a certification, together with
the calculations reflecting the process and formulas related thereto, as to the
exact gross square footage of the Building the exact square footage of the
Premises. The Annual Base Rent shall be determined by multiplying the square
footage of the Premises times the applicable square foot rent. Once the fixed
rent is established the parties hereto shall execute the Commencement Date
agreement setting forth the fixed per annum rent for the initial term and all
renewal terms.
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D. Landlord represents and warrants that Landlord has sufficient funds to
complete the construction of the entire Building, the Premises and related
improvements.
E. Notwithstanding anything in the Lease or elsewhere to the contrary
Landlord may not assign this Lease, except in connection with a financing of the
property, to any entity prior to the end of 24 months after the Commencement
Date.
10. CHANGES AND ADDITIONS TO BUILDING AREA.
Landlord shall not, without the express written consent of Tenant, which
consent may be withheld or delayed in Tenant's reasonable business judgment (a)
make or permit changes or revisions in the plans as set forth in Exhibits "B" or
"C" including, but not limited to, additions to, subtractions from,
rearrangements of, alterations of, modifications of or supplements to the
Building and/or the Premises, walkways, hallways, stairwells, escalators,
elevators, driveways, or other common facilities; (b) construct other buildings
or improvements on the Land or make alterations or additions to the building;
and (c) make or permit changes or revisions in the Building, including
additions, or to convey portions of the Building Area or Land to others for the
purpose of constructing other improvements, including additions and alterations,
except as may be required by any governmental subdivision.
11. ALTERATIONS AND SERVICES BY TENANT AND TRADE FIXTURES.
A. Tenant shall not do any structural work in or about the Demised
Premises or make any structural alterations or additions without the prior
written consent of Landlord, which shall not be unreasonably withheld. All such
work to which Landlord consents shall be performed and installed at Tenant's
sole cost and expense in accordance with plans and specifications to be supplied
by Tenant, which plans shall in all instances first be subject to Landlord's
reasonable approval. As a part of Landlord's approval, Landlord shall state if
it shall require removal and restoration of the alterations or additions at the
termination of the Lease. During the work, Tenant shall maintain such insurance
as Landlord may reasonably require for the benefit of the Landlord.
B. No work or installation by Tenant at the Premises, Land or Building,
shall be done except after the filing of a waiver of the right to file any lien
(commonly known as a "Mechanics and/or Materialmen's Lien Waiver") with
Landlord, so as to constitute an effective waiver by anyone having a right to
file such a lien. No work which Landlord permits Tenant to do pursuant to this
Section 11, whether in the nature of erection, construction, alteration or
repair, shall be deemed to be made upon the express or implied
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request of, nor for the immediate use and benefit of, Landlord, so that no
mechanic's or materialman's lien shall be allowed against the estate of Landlord
by reason of any consent given by Landlord to Tenant to improve the Premises.
Except as above required, Tenant may make such other changes and alterations to
the Premises without the necessity of Landlord's approval.
C. In the event any mechanic's lien shall at any time be filed against the
Premises allegedly by reason of work, labor, service or materials performed or
furnished to Tenant or to anyone holding the Premises; through or under Tenant,
Tenant shall cause the same to be discharged of record or bonded to the
satisfaction of Landlord within thirty (30) days of Tenant becoming aware of the
filing. If Tenant shall fail to cause such lien to be so discharged or bonded
after being notified of the filing, then, in addition to any other right or
remedy of Landlord, Landlord may discharge the same by paying the amount claimed
to be due, and the amount so paid by Landlord and all costs and expenses,
including reasonable attorneys' fees incurred by Landlord in procuring the
discharge of such lien, shall be due and payable by Tenant to Landlord as
additional rent on the first (1st) day of the next following month.
D. Subject to the provisions of Section 11(A) hereof, any alterations,
improvements or additions made by Tenant shall remain upon the Premises at the
expiration or earlier termination of this Lease, and shall become the property
of the Landlord.
E. All trade fixtures and apparatus (as distinguished from leasehold
improvements) owned by the Tenant and installed in the Premises shall remain the
property of Tenant and shall be removable at any time, including upon the
expiration of the Term, and provided further that Tenant shall repair any damage
to the Premises caused by the removal of said fixtures to the original order and
condition in which they were at the time of delivery of possession to Tenant,
ordinary wear and tear excepted.
F. Landlord hereby expressly waives any and all rights granted by or under
any present or future laws to levy or distrain for rent, in arrears, in advance
or both, upon any goods, merchandise, equipment, fixtures, furniture and other
personal property of Tenant or any nominee of Tenant in the Premises, delivered
or to be delivered thereto.
12. MAINTENANCE BY TENANT.
A. In regard to use and occupancy of the Premises, Tenant will at its own
expense maintain the entire Premises, including but not limited to: (a) keep all
interior surfaces of the Premises clean; (b) replace promptly any cracked or
broken glass of the Premises with glass of like kind and quality; (c) maintain
the
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Premises in a clean, orderly and sanitary condition and free of insects,
rodents, vermin and other pests; (d) keep any garbage, trash, rubbish or refuse
in rat-proof containers within the interior of the Premises until removed; (e)
have such garbage, trash, rubbish and refuse removed on a daily basis; (f)
comply with all laws, ordinances, rules and regulations of governmental
authorities and all recommendations of the Fire Underwriters Rating Bureau now
or hereafter in effect and specifically attributable to the Tenant's use of the
Premises, provided however that Tenant shall be responsible for keeping the
inside of all glass in the doors and windows of the Premises clean and keeping
the interior of the Premises clean.
B. In regard to use and occupancy of the Premises, Tenant will not: (a)
Place or maintain any merchandise, trash, refuse, or other articles in any
vestibule or entry of the Premises, on the footwalks or corridors adjacent
thereto or elsewhere on the exterior of the Premises so as to obstruct any
corridor, footwalk, stairwell, elevator, escalator or mall; (b) Permit
accumulations of or burn garbage, trash, rubbish or other refuse within or
outside of the Premises; (c) Cause or permit objectionable odors to emanate or
be dispelled from the Premises; (d) Receive or ship articles of any kind except
through service facilities designated by Landlord unless no service door is
provided; (e) Use the parking area adjacent to the Premises for the sale or
display of any merchandise or for any other business, occupation or undertaking;
or (f) Use or permit the use of any portion of the Premises for any unlawful
purpose; or (g) Place a load upon any floor which exceeds the floor load for
which the floor was designed to carry or, which amount is in excess of that
allowed by law; (h) Store, use or allow to be used on the Premises any article
or substance which is considered to be hazardous, flammable, explosive or having
an offensive odor; (i) Use electricity in the Premises in excess of the capacity
of any of the electrical conductors and equipment in or otherwise serving the
Premises; (j) Execute or deliver any financing or security agreement or
statement that would be a lien upon the Premises or the Land or Building.
C. Tenant shall keep the Premises and fixtures in good order and repair,
reasonable wear and tear and damage by any casualty not occurring through act of
negligence of Tenant or Tenant's agents, employees or invitee excepted, and
except for damages as set forth in Section 15 hereof on demand pay Landlord, as
additional rent, the cost of repair of the Premises, or the Building, or any
part if damaged in whole or in part by the act or negligence of Tenant or
Tenant's agents, employees or invitee.
D. Within the limits of the Building as constructed Tenant and Landlord
shall use every reasonable precaution against fire, or other casualty.
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E. Tenant shall give Landlord prompt written notice of any accident, fire,
casualty or damage occurring on or to the Premises, and of any defects in the
apparatus in the Premises.
13. STRUCTURAL REPAIRS AND LANDLORD'S OBLIGATIONS
A. Landlord will be responsible for structural repairs to exterior walls,
roof, structural columns, structural floors of the Premises, Land and Building;
Landlord shall also be responsible for repairs to the parking lot, utility lines
(including but not limited to sewer and water) between the Building and the
street, and structural repairs to the windows; provided Tenant shall give
Landlord written notice of the necessity for such repairs and provided that the
damage shall not have been caused by negligence or willful acts of Tenant, its
concessionaires, officers, employees, licensees or contractors, in which event
Tenant shall be responsible. Landlord shall have no obligation for repair,
maintenance, alteration or any other action with respect to the Premises, in
whole or any part, or any plumbing, electrical, or other mechanical
installations, or any of Tenant's improvements or fixtures, except as may be
expressly set out in this Lease and/or caused by the negligence or willful act
of Landlord or Landlord's employer, contractors, customers and/or deliverymen.
Landlord shall keep the roof free of leaks and the Building free of seeping
water. In the event Landlord fails to make the required repairs, Tenant shall
make such repairs and deduct the cost thereof from future rent payments.
B. Landlord will be responsible for replacement or major repairs to the
parking lot and the HVAC system during the first five (5) years of this lease.
In the event it is necessary to replace or provide major repairs to the parking
lot and/or HVAC system during the next five (5) years, the cost thereof shall be
paid as follows:
(1) During the sixth (6th) year of this Lease, Tenant will be
responsible for fifty (50%) percent of the cost and Landlord
will be responsible for fifty (50%) percent of the cost.
(2) During the seventh (7th) year of this Lease, Tenant will be
responsible for forty (40%) percent of the cost and Landlord
will be responsible for sixty (60%) percent of the cost.
(3) During the eighth (8th) year of this Lease, Tenant will be
responsible for thirty (30%) percent of the cost and Landlord
will be responsible for seventy (70%) percent of the cost.
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(4) During the ninth (9th) year of this Lease, Tenant will be
responsible for twenty (20%) percent of the cost and Landlord
will be responsible for eighty (80%) percent of the cost.
(5) During the tenth (10th) year of this Lease, tenant will be
responsible for ten (10%) percent of the cost and Landlord
will be responsible for ninety (90%) percent of the cost.
Tenant shall be responsible, however, for normal repair of the
parking lot and HVAC system during the entire term of this Lease.
C. Tenant will have the benefit of any and all construction warranties
Landlord has obtained for any repairs, and Landlord shall use its best effort
with the contractor to cover those repairs under the construction warranties.
Landlord hereby guarantees any work performed pursuant to this Lease, including
but not limited to all work set forth on Exhibits "A" and "B" for one (1) year
from and after the time that the Premises are completed and delivered to Tenant
as set forth in this Lease.
D. If Landlord or Tenant fail to perform any of the foregoing repairs for
which they are responsible on a timely and effective basis, Landlord or Tenant
as applicable may, after at least twenty (20) days written notice of their
intention to do so to the other party, complete such repairs and be entitled to
reimbursement for the cost of such repairs from the non-performing party.
E. Landlord and Tenant acknowledge that the Americans With Disabilities
Act of 1990 (42 U.S.C. Section 12101 et seq.) and regulations and guidelines
promulgated thereunder, as all of the same may be amended and supplemented from
time to time (collectively referred to herein as the "ADA") establish
requirements for business operations, accessibility and barrier removal, and
that such requirements may or may not apply to the Premises depending on, among
other things: (1) whether Tenant's business is deemed a "public accommodation"
or "commercial facility", (2) whether such requirements are "readily
achievable", and (3) whether a given alteration affects a "primary function
area" or triggers "path of travel" requirements. The parties hereby agree that:
(a) Landlord shall be responsible for ADA Title III compliance in the Premises,
except as provided below, and in connection with the completion of the
Construction of the Building, the Premises and with all other Improvements, (b)
Tenant shall be responsible for ADA Title III compliance in connection with any
alterations to the Premises, (c) Landlord shall perform and shall be responsible
for the cost of, ADA Title III "path of travel" requirements and (d) Landlord
shall perform, and Landlord shall be responsible for the cost of, ADA Title III
compliance in the Common Areas.
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14. INTERIOR REPAIRS.
A. Tenant will keep the interior of the Premises, together with all
electrical, plumbing and other mechanical installments, excluding items Landlord
is to repair pursuant to Sections 12 and 13 hereof, in good order and repair and
will make all replacements from time to time as required at its expense. Tenant
will surrender the Premises at the expiration of the Term or at such other time
as this Lease may terminate in as good condition as when received, excepting
depreciation caused by ordinary wear and tear, damage by fire or casualty,
unavoidable accident or Act of God. Tenant will not overload the electrical
wiring serving the Premises or within the Premises, and will install at its
expense, any additional electrical wiring which may be required in connection
with Tenant's apparatus. Landlord shall keep the roof free of leaks and the
Building free of seeping water. In the event Landlord fails to make the required
repairs, Tenant shall make such repairs and deduct the cost thereof from future
rent payments.
B. Any damage or injury sustained by any person because of mechanical,
electrical, plumbing or any other equipment or installations, whose maintenance
and repair is the responsibility of Tenant shall be paid by Tenant, and Tenant
shall indemnify and hold Landlord harmless from and against all claims, actions,
damages and liability, including but not limited to, attorneys' and other
professional fees, any other cost which Landlord might reasonably incur as a
direct result thereof.
15. DAMAGE TO PREMISES.
Except for damage by casualty, as set forth in Section 23, Tenant will
repair promptly, at its expense, any damage to the Premises, and upon demand
shall reimburse Landlord for the cost of the repair of any damage elsewhere in
the Building, caused by negligence or willful acts of Tenant, its
concessionaires, officers, employees, licensees or contractors, unless caused by
Landlord, its agents, employees or contractors; and in default of such repairs
by Tenant, at the expiration of thirty (30) days after delivery of written
notice to Tenant, Landlord may make or cause the same to be made and Tenant
agrees to pay to Landlord as additional rent, the cost of the repairs with
interest at the rate of the lesser of ten (10%) per cent per annum or the
maximum rate of interest.
16. ALTERATIONS BY TENANT.
A. Tenant will not alter the exterior of the Premises and will not make
any structural alterations, renovations or improvements to the Premises without
the prior written consent of Landlord, which
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shall not be reasonably withheld. All such work to which Landlord consents shall
be performed and installed at Tenant's sole cost and expense in accordance with
plans and specifications to be supplied by Tenant, which plans shall in all
instances first be subject to Landlord's reasonable approval. As a part of
Landlord's approval, Landlord shall state if it shall require removal and
restoration of the alterations or additions at the termination of the Lease.
During the work, Tenant shall maintain such insurance as Landlord may reasonably
require for the benefit of the Landlord. Tenant may make all other alterations
without any approval required of Landlord.
17. SIGNS AND ADVERTISING.
Tenant, at Tenant's sole cost and expense, may install any sign at the
Building subject to local ordinance.
18. GENERAL APPEARANCE.
Tenant shall maintain the general appearance of the interior of the
Premises in such a manner as will present a neat, clean and orderly appearance.
19. UTILITIES, ELECTRICITY; HVAC; SPRINKLER; AND OTHERS.
A. Landlord will provide and maintain the necessary means to bring all
utilities, including but not limited to, electricity, sewer and water for
Tenant's use to the Premises in accordance with Exhibit "B" attached. Tenant
shall pay all charges for heating and air-conditioning, electricity, sprinklers,
water and all other utilities and services used by Tenant in the Premises and
supplied by a public utility or public authority, or any other person, firm or
corporation, whether billed directly to Tenant or billed directly to Landlord
(in which event such charges to be reimbursed to Landlord shall be determined on
a connected load basis and shall be payable to Landlord upon demand but not
prior to the due date thereof).
B. Landlord shall incur no liability to Tenant whatsoever should any
utility become unavailable from any public utility company, public authority or
any other person, firm or corporation, including Landlord, supplying or
distributing such utility. Landlord shall under no circumstances be liable to
Tenant in damages or otherwise for any interruption in service of water,
electricity, heating, air-conditioning or other utilities and services caused by
an unavoidable delay, by the making of any necessary repairs or improvements or
by any cause beyond Landlord's reasonable control, during which period rent
shall be abated.
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20. INSURANCE.
A. Landlord will keep in force as long a this Lease remains in effect and
during such other times as Tenant occupies the Premises or any part:
(1) An all risk insurance policy or fire insurance policy with
respect to the Building and Premises based upon coverage limits not less
than a reasonable estimate of the cost of replacing the Building and all
related improvements. Coverage shall be at least sufficient so that losses
shall be paid in full up to the face amount of the policy; and
(2) Liability insurance, including contractual liability, with
respect to the Premises to afford protection to the limit of not less than
Three Million Dollars ($3,000,000) for each occurrence with respect to
bodily injury and wrongful death coverage and at least Five Hundred
Thousand Dollars ($500,000) for each occurrence with respect to property
damage coverage.
(3) Prior to commencement of any construction of the Building and
the related improvements Landlord shall provide, or cause to be provided,
and thereafter shall keep in full force and effect, or cause to be kept in
full force and effect, until and only until the date of substantial
completion, at no cost to Tenant, the following related to the Premises:
(a) comprehensive general liability insurance naming Landlord as
an additional insured, such insurance to insure against
liability for bodily injury and death and for property damage
in an amount not less than $5,000,000.00 combined single
limit, such insurance to include operations-premises
liability, independent contractor's coverage, completed
operations for a period of two (2) years after completion of
construction and broad form contractual liability (designating
the indemnity provisions of any construction contracts if such
coverage is provided by a contractor); and
(b) workers' compensation providing statutory benefits for all
persons employed at or in connection with the Leased Premises.
B. Tenant will keep in force at its expense as long as this Lease remains
in effect and during such other time as Tenant occupies the Premises or any part
all-risk insurance written at replacement cost value on Tenant's personal
property including inventory, trade fixtures, floor covering, furniture and
other property removable by Tenant and Tenant's leasehold improvements
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installed by it under Exhibit "B" or otherwise; Tenant will further deposit the
policy or policies of such insurance or certificates with Landlord, which
policies shall name Landlord as additional named insured, and shall also contain
a provision stating that such policy or policies shall not be canceled except
after thirty (30) days written notice to Landlord. If the nature of Tenant's
operation is such as to place any or all of its employees under the coverage of
local xxxxxxx'x compensations or similar statutes, Tenant shall also keep in
force, at its expense, so long as this Lease remains in effect and during such
other times as Tenant occupies the Premises, xxxxxxx'x compensation or similar
insurance affording statutory coverage and containing statutory limits. If
Tenant shall not comply with its covenants made in this Section 20, Landlord has
no liability and may cause insurance to be issued, and in such event, Tenant
agrees to pay as additional rent, the premium for such insurance upon Landlord's
demand.
C. Tenant shall require any contractor of Tenant who is to perform work on
the Premises to keep in force at such contractor's expense during such times as
contractor is working in the Premises (including, without limitation, the
performance of any Exhibit "B" work to be performed by Tenant): (a)
comprehensive general liability insurance, including contractor's liability
coverage, contractual liability coverage, completed operations coverage, broad
form property damage endorsement, and contractor's protective liability
coverage, in companies and in form reasonably acceptable to Landlord, to afford
protection to the limit, per occurrence, of not less than one Million Dollars
($1,000,000) combined single limit with respect to personal injury or death and
property. Tenant will cause Tenant's contractor to deposit the policy or
policies of such insurance or certificates with Landlord prior to commencing any
such work, which policies shall name Landlord, or its designee as additional
named insured, and shall also contain a provision stating that such policy or
policies shall not be canceled except after thirty (30) days' written notice to
Landlord. Tenant shall also require its contractor to keep in effect workmen's
compensation or similar insurance affording statutory coverage and containing
statutory limits during the period such contractor is performing work in the
Premises on Tenant's behalf.
21. INDEMNITY BY TENANT.
A. Tenant will indemnify and save Landlord harmless from and against all
claims, actions, damages, liability and expense, including reasonable attorney's
and other professional fees, in connection with loss of life, personal injury
and/or damage to property arising from or out of the occupancy or use by Tenant
of the Premises or the Building, caused wholly or in part by any act or omission
of Tenant, its officers, agents, contractors, or employees.
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B. Unless due to negligence or willful act of Landlord, or Landlord's
agents, employees, or contractors, Landlord shall not be responsible or liable
to Tenant, or to those claiming by, through or under Tenant, for any loss or
damage resulting to Tenant, or those claiming, by, through or under Tenant, or
its or their property, from the breaking, busting, stoppage or leaking of
electrical cable and wires, and water, gas, sewer or steam pipes.
C. Except as herein set forth, Tenant agrees that Tenant's use and
occupancy of the Premises and the Building is at Tenant's own risk. The
provisions of this Section shall be applicable from and after the Commencement
Date of this Lease and until the end of the Term of this Lease, and during such
further period as Tenant may use or be in occupancy of any part of the Premises
of any portion of the Building.
D. Landlord shall indemnify and save harmless Tenant and its agents
against and from (a) any and all claims, actions, costs, recoveries and legal
expense (i) arising from (x) the conduct of Landlord, its employees, agents,
contractors, or invitees, or (y) and work or thing whatsoever done, including
but not limited to Exhibit "B", or any condition created (other than by Tenant
for Tenant's account) in or about the Premises and/or Building during the Term
of this Lease or (ii) arising from any negligent or otherwise wrongful act or
omission of Landlord or any of its employees, agents, contractors or invitees,
and (b) all costs, expenses and liabilities incurred in or in connection with
each such claim or action or proceeding brought thereon. In case any action or
proceeding be brought against Tenant by reason or any such claim, Landlord, upon
notice from Tenant, shall resist and defend such action or proceeding. The
provisions of this Section 21(D) shall survive the expiration or sooner
termination of this Lease.
22. INCREASE IN INSURANCE PREMIUMS; WAIVER OF SUBROGATION
A. To the extent such coverage is available without any cost to Tenant,
Tenant shall cause each insurance policy carried by it and insuring the Premises
against loss by fire or any of the casualties covered by all-risk insurance to
be written in such a manner so as to provide that the insurer waives all right
of recovery by way of subrogation against Tenant in connection with any loss or
damage covered by the policy.
B. To the extent such coverage is available without any cost to Landlord,
Landlord shall cause each insurance policy carried by it and insuring the
Premises against loss by fire or any of the casualties covered by all-risk
insurance to be written in such a manner so as to provide that the insurer
waives all right of recovery by way of subrogation against Landlord in
connection with any loss or damage covered by the policy.
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C. Neither Landlord nor Tenant shall be liable to the other for any loss
or damage caused by fire or any of the casualties covered by all-risk insurance,
which loss or damage is covered by the insurance policies maintained by the
other party. If such a waiver of subrogation is not available from the insurers
of either Tenant or Landlord, this Section 22(B) shall have no effect. It is
agreed that, should either party fail to procure such waiver, if available, it
will pay to the other in liquidated damages all monies to which any subrogee
becomes entitled and the cost of reasonable legal defense of any claim for
subrogation.
23. FIRE OR OTHER CASUALTY.
A. If the Premises shall be damaged by fire, the elements, accident or
other casualty ("Casualty"), and the Premises are not rendered untenantable in
whole or in part, Landlord shall promptly coordinate such damage to be repaired
(but only with respect to those items to be provided by it under Exhibits "A"
and "B"), and the Annual Basic Rent and other charges shall be abated
proportionately as to the portion of the Premises rendered untenantable from the
date of such Casualty until the Premises are rendered entirely tenantable. If,
as the result of Casualty, the Premises are rendered wholly untenantable,
subject to the provision of Section 23(B), the Annual Basic Rental and other
charges shall be abated from the date of such Casualty until the Premises have
been rendered fully tenantable.
In the event of such Casualty, Landlord shall not be liable for
interruption to Tenant's business or for damage to on replacement or repair of
Tenant's personal property, including inventory, trade fixtures, floor
coverings, furniture and other property removable by Tenant under the provisions
of this Lease or to Tenant's leasehold improvements.
B. If the Premises are (a) rendered wholly untenantable, or (b) damaged as
a result of any cause which is not covered by Landlord's insurance or is damaged
in whole or in part during the last three (3) years of the Term, or (c) all
repairs to restore the Building and the Premises to its condition prior to the
occurrence of the damage cannot be, or are not, completed within six (6) months
of the occurrence of the damage, or (d) if the Building is damaged to the extent
of fifty (50%) percent or more of the total square footage, then in any event,
Landlord or Tenant may immediately terminate this Lease by giving to the other
party notice. Annual Basic Rent and other charges shall be adjusted as of the
date of such Casualty.
C. If the Building is so substantially damaged that it is reasonably
necessary to demolish same for the purpose of reconstruction, Landlord or Tenant
may terminate this Lease by giving to the other party notice within ninety (90)
days after the
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occurrence of the damage, in which event this Lease shall immediately terminate
and the Annual Basic Rental and other charges shall be adjusted as of the date
of the occurrence of such Casualty.
24. CONDEMNATION.
If the whole or any part of the Premises, parking area and/or access to or
from any adjacent public roadways shall be taken under the power of eminent
domain, this Lease shall terminate as to the part so taken in the date Tenant is
required to yield possession to the condemning authority. Landlord shall make
such repairs and alterations as may be necessary in order to restore the part
not taken to useful condition and the Annual Basic Rental and additional rent
shall be reduced proportionately as to the portion of the Premises so taken. If
the portion of the Premises so taken substantially impairs the usefulness of the
Premises, either party may terminate this Lease as of the date when Tenant is
required to yield possession. If twenty-five (25%) percent or more of the Floor
Area, in the Building is taken, then Landlord or Tenant may terminate this Lease
as of the date of the taking.
All compensation awarded for any taking of the fee (and/or leasehold if
Landlord shall then be in possession of the Premises under a ground lease) shall
belong to and be the property of Landlord and Tenant assigns to Landlord all
rights with respect thereto; provided, however, nothing contained herein shall
prevent Tenant from applying for reimbursement from the condemning authority (if
permitted by law) for moving expense, or removal of trade fixtures, or loss of
business goodwill, or severance damages.
25. INSPECTION BY LANDLORD.
Tenant will permit Landlord, its agents, employees and contractors to
enter all parts of the Premises during Tenant's business hours in the presence
of a representative of Tenant, to inspect the same and to enforce or carry out
any provision of this Lease.
26. ASSIGNMENTS AND SUBLETTING.
A. Tenant may assign or sublet, for a Permitted Use only, all or any part
of the leased Premises, or license concessions or lease departments, without the
prior notice to Landlord, subject to Tenant's continued responsibility-under
this Lease. The right to sublet or assign for a use other than a lawful use,
shall require the express prior, written approval of Landlord. This section
includes any subletting or assignment which would otherwise occur by operation
of law, merger, consolidation, reorganization,
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transfer or other change of Tenant's corporate or proprietary structure, or an
assignment or subletting to or by a receiver or trustee in any Federal or State
bankruptcy, insolvency, or other proceedings.
B. If Tenant is a corporation and if at any time after execution of this
Lease and prior to the end of the Term, any part or all of the corporate shares
shall be transferred by sale, assignment, bequest, inheritance, operation or law
or other disposition (including such a transfer to or by a receiver or trustee
in Federal or State bankruptcy, insolvency, or other proceedings) so as to
result in a change in the present control of said corporation by the person or
persons now owning a majority of said corporate shares, Tenant shall notify
Landlord of this event within fifteen (15) days from the date of such transfer.
In such event and whether or not Tenant has given such notice, Landlord may
terminate this Lease at any time, by giving Tenant at least sixty (60) days
written notice, which notice must be delivered to Tenant within twenty (20) days
of the notice to or discovery by Landlord of such fact. This provision shall not
be applicable to Tenant if it is a corporation whose outstanding voting stock is
listed on a national securities exchange (as defined in the Securities Exchange
Act of 1934, as amended).
C. Tenant shall have the right, without Landlord's consent, to assign or
sublet this lease to an Affiliate (as hereafter defined). "Affiliate" shall mean
(a) any entity which is controlled by, is under common control with, or which
controls Tenant, or which Tenant has greater than fifty (50%) percent voting or
ownership interest, (b) any entity into which Tenant merges or is consolidated,
or any entity into which Tenant is merged or any other corporation or entity
resulting from the consolidation or merger of Tenant with some other entity, in
either case in connection with the reasonable and valid business purpose of
Tenant and not intended to avoid the restrictions set forth in Section 26(A) or
(C) any successor corporation or other entity arising from any bona fide
reorganization of Tenant. Tenant may also assign this Lease, without the consent
of the Landlord in connection with the sale or transfer of all or a portion of
the stock or assets of the Tenant.
27. QUIET POSSESSION; SUBORDINATION; ATTORNMENT.
A. So long as Tenant is not in default, Tenant shall have peaceful and
quiet use and possession of the Premises, subject to all matters of record and
to any mortgage, ground lease, or other agreements to which this Lease is or may
hereafter be subordinated. This Lease is and shall at all times hereafter be
subject and subordinate in all respects to all present and future mortgages and
other security instruments encumbering all or any part of the Premises and to
all amendments, renewals, modifications,
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substitutions, increases, supplements, consolidations and extensions thereof,
subject to Tenant's right of peaceful, quiet and undisturbed use and possession
of the Premises.
B. If there shall occur any default by Landlord with respect to any
obligation of this Lease, which default is of such nature as to give Tenant
right to terminate this Lease, or to reduce, offset or delay the rent payable
under this Lease, or to claim any credit, offset or delay against future rents,
then, notwithstanding any provision in this Lease to the contrary, Tenant shall
take no action as a result of such default, and shall continue to perform all
terms of this Lease as though such default shall not have occurred, until
written notice thereof shall be delivered to Landlord and to the holder (the
"Lender") any mortgage encumbering the Premises of which Tenant has written
notice and until neither Landlord nor Lender shall have cured or remedied such
default within thirty (30) days after receipt of such notice to Lender. Lender
shall have the right, but not the obligation, to remedy or cure such default. So
long as Tenant is not in default in the payment of rent, additional rent or
other charges, or in the performance or any of the terms, covenants or
conditions of this Lease, Tenant shall not, by reason of foreclosure of any
mortgage, acceptance of a deed in lieu of foreclosure, or the exercise of any
remedy provided in a mortgage, be disturbed by Lender in Tenant's occupancy of
the Premises during the term of this Lease or any extension herein set forth.
Landlord and Tenant agree with Lender that Tenant shall pay directly to Lender
all rent and other sums paid by Tenant under this Lease upon Tenant's receipt of
written notice from Lender of the exercise of such rights, and Landlord hereby
authorizes and directs Tenant to make all such payments to Lender. Tenant shall
attorn to and recognize as Tenant's landlord any purchaser at a foreclosure or
judicial sale relating to a mortgage or debt secured thereby, or any transferee
by deed or assignment in lieu thereof, and its successors and assigns, and the
successor Landlord will accept such attornment and recognize Tenant's rights of
possession and use of the Premises in accordance with the provisions of the
Lease, and without further evidence of such attornment and acceptance, Tenant
shall be bound by and comply with all the terms, provisions, covenants and
obligations contained in this Lease on its part to be performed; provided,
however, that nothing contained herein shall impose upon such purchaser or its
successors or assigns any obligation to complete any improvements or any work or
restoration to be performed under this Lease or to reimburse Tenant or any other
party for any costs thereof; provided, however, that if such purchaser or its
successors or assigns elects not to complete any such improvements or work or
restoration to be performed under this Lease, Tenant shall have the right to
terminate this Lease by giving such purchaser or its successors or assigns
written notice of such termination promptly after receiving notice of the
election by such purchaser or its successors or assigns not to complete any such
improvements, work or restoration. Neither Lender nor any purchaser at a
foreclosure
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or judicial sale relating to the mortgage or debt secured thereby, nor any
transferee by deed or assignment in lieu thereof nor any of its successors or
assigns shall in any way or to any extent be: (a) liable for any act or omission
of any prior Landlord (including Landlord) in contravention of any provision of
this Lease, unless same shall continue after such successor or assignee becomes
the landlord hereunder; or (b) subject to any offsets, claims or defenses which
Tenant might have against any prior Landlord (including Landlord); or (c) bound
by any rent or additional rent which Tenant might have paid for more than thirty
(30) days in advance to any prior Landlord (including Landlord); or (d) bound by
any amendment or modification of this Lease made without Lender's written
consent; or (e) in any way responsible for deposit or security which was
delivered to any prior Landlord (including Landlord) but which was not
subsequently delivered to Lender or such other person or entity, as the case may
be. In the event of a default under this Lease by any purchaser at a foreclosure
or judicial sale relating to the mortgage or debt secured thereby, or by any
transferee by deed or assignment in lieu thereof by any of its successors or
assigns, Tenant shall have no recourse to any assets of such purchaser or
transferee, or of its successors or assigns other than its interest in the
property of which the Premises form a part. Tenant shall from time to time upon
request by Landlord, execute and deliver one or more instruments in recordable
form confirming that this Lease is subject and subordinate to the matters and
instruments referred to in this Section 27 provided said instrument contains
appropriate language of non-disturbance. Tenant also agrees that any such
lessor, mortgagee or trustee above may elect to have this Lease prior to its
ground lease and/or the lien of its mortgage, deed of trust or other security
instrument, respectively, and that, in the event of such election and upon
written notice to Tenant, this Lease shall be deemed prior in lien to such
ground lease and/or mortgage, deed of trust or other security instrument whether
or not this Lease is dated prior to, or subsequent to the date of said ground
lease, and/or mortgage, deed of trust or other security instrument.
C. Landlord shall deliver to Tenant a written agreement from the holder of
each mortgage or ground lease covering the Premises providing for the following:
(a) So long as there exists a no default, Tenant's possession of the Premises
and Tenant's rights and privileges under this Lease, including the rights with
respect to the application of insurance and condemnation proceeds, shall not be
diminished or interfered with by any mortgagee or ground lessor of the Premises;
(b) Any such mortgagee or ground lessor shall agree that so long as there exists
no default, no such mortgagee or ground lessor will join Tenant as a party
defendant in any action or proceeding for the purpose of terminating Tenant's
interest and estate under this Lease because of any default under any mortgage
or ground lease involving Landlord; and (c) In the event that Landlord shall at
any time fail to pay any installment of principal or interest or any other sum
under any mortgage now or
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hereafter placed on the Premises, or in the event that Landlord shall fail to
pay any rent payable under any ground lease to which this Lease is subordinate,
or in the event Landlord shall do or fail to do any act which constitutes an
event of default under such mortgage or ground lease, Tenant, if not in default
hereunder, shall have the right to simultaneously notice of Landlord's default
from the holder of any such mortgage or ground lease and the same grace period
to cure such default of Landlord as is available to Landlord. If Tenant elects
to cure such default as hereinabove provided, by paying such principal,
interest, rent and other sum, or by taking such action with respect to which
Landlord may be in default as aforesaid, Tenant shall have the right to deduct
the amount of such payment and the cost and expense incurred by reason of
Landlord's other defaults, with interest thereon at 12% per annum from the date
of Tenant's payments, from the rent and additional rent due and to become due
under this Lease. If Landlord fails to deliver the foregoing on or prior to the
Commencement Date then in such event Tenant may cancel this Lease without
further liability to the Landlord.
28. BANKRUPTCY.
If any sale of Tenant's interest in the Premises created by this Lease
shall be made under execution or similar legal process; or if Tenant or any
guarantor of Tenant admits in writing its inability to pay its debts when due;
or if a receiver or trustee shall be appointed for Tenant's or its guarantor's
business or property; or if a petition is filed by (or filed against and such
filing is not released within sixty (60) days) Tenant or its guarantor for
bankruptcy, a corporate reorganization or Tenant or an arrangement with its
creditors under any state bankruptcy law; or if Tenant or its guarantor shall
make an assignment for the benefit of creditors; or if in any other manner
Tenant's interest under this Lease shall pass to another by operation of Law,
Tenant shall be deemed to have breached a material covenant and Landlord may
reenter the Premises and terminate this Lease and the tenancy created.
Notwithstanding such termination, Tenant shall remain liable for all rent and
damages which may be due at the time of such termination and shall be liable for
the damages set forth herein.
29. PERFORMANCE BY LANDLORD AND EMERGENCIES.
A. Landlord covenants and agrees to perform all obligations expressed on
its part to be performed. Upon receipt of written notice specifying action
desired by Tenant in connection with any such obligation if Landlord shall not
commence and proceed diligently to comply with such notice to the satisfaction
of Tenant within three (3) days, Tenant may do the things specified in said
notice. Tenant shall have no liability to Landlord for any loss or
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damage resulting in any way from such action by Tenant, and Landlord agrees to
pay promptly upon demand any expense incurred by Tenant in taking such action,
together with interest at the rate of the lesser of fifteen (15%) percent, per
annum or the maximum rate of interest permitted by law.
30. REMEDIES OF LANDLORD.
A. If Tenant shall violate either (a) the covenant to pay rent and shall
fail to comply with said covenant within ten (10) days after written notice of
such failure, or (b) any other covenant, and shall fail to comply or commence
compliance within thirty (30) days after being sent written notice from
Landlord, by certified or registered mail, of such violation and diligently
proceed to cure its default, or if Tenant shall repeatedly violate any covenant,
Landlord may reenter the Premises and declare this Lease and the tenancy created
terminated. Landlord shall be entitled to the benefit of all provisions of
applicable laws respecting the speedy recovery of the Premises or proceedings in
forcible entry and detainer.
B. Subject to (A) above, Landlord may perform for the account of Tenant
any such default of Tenant and immediately recover as in this Lease set forth as
additional rent any expenditures made and the amount of any obligations incurred
in connection therewith, plus the prevailing prime interest rate per annum from
the date of any such expenditure.
C. In the event of a default hereunder and failure to cure as set forth
above, Landlord may accelerate all rent and additional rent due for the balance
of the term of this Lease discounted to current value and declare the same to be
immediately due and payable; in determining the amount of any future payments
due Landlord due to increases in Real Estate Taxes and Operating Expenses,
Landlord may make such determination based upon the amount of Real Estate Taxes
and Operating Expenses paid by Tenant for the calendar year of such default.
D. Landlord may by proper legal process, at any time after the occurrence
of any event of default, reenter and repossess the Premises and any part
thereof, and attempt in its own name, as agent for Tenant if this Lease not be
terminated, or in its own behalf if this Lease be terminated, to relet all or
any part of such Premises for and upon such terms and to such persons and for
such period or periods as Landlord, in its sole discretion, shall determine,
including the term beyond the termination of this Lease; and Landlord shall not
be required to accept any tenant offered by Tenant or observe any instruction
given by Tenant about such reletting or do any act or exercise any care or
diligence with respect to such reletting or to the mitigation of damages. For
the purpose of such reletting, Landlord may decorate or make repairs,
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changes, alterations or additions in or to the Premises to the extent deemed by
Landlord desirable or convenient; and the cost of such decoration, repairs,
changes, alterations or additions shall be charges to and be payable by Tenant
as additional rent, as well as any reasonable brokerage and attorney fees
expended by Landlord; and any sums collected by Landlord from any new tenant
obtained on account of the Tenant shall be credited against the balance of the
rent due. Tenant shall pay to Landlord monthly, on the days when the rent would
have been payable under this Lease, the amount due less the amount obtained by
Landlord from such new tenant.
E. Landlord shall have the right of injunction, in the event of a breach
or threatened breach by Tenant of any of the terms and conditions hereof, to
restrain the same and the right to invoke any remedy allowed by law or in
equity, whether or not other remedies, indemnity or reimbursements are herein
provided. The right and remedies given to Landlord in this Lease are distinct,
separate and cumulative remedies; and no one of then, whether or not exercised
by Landlord, shall be deemed to be in exclusion of any of the others.
31. REMEDIES CUMULATIVE.
No reference to any specific right or remedy shall preclude Landlord from
exercising any other right or from having any other remedy or from maintaining
any action to which it may otherwise be entitled at law or in equity. Landlord's
failure to insist upon a strict performance of any covenant of this Lease or to
exercise any option or right herein contained shall not be a waiver or
relinquishment for the future of such covenant right or option, but the same
shall remain in full force and effect.
32. LANDLORD'S LIABILITY.
Anything in this Lease to the contrary notwithstanding, Tenant agrees that
it shall look solely to the estate and property of the Landlord in the Land and
Building which includes the Premises, including the rent therefrom, subject to
prior rights of any mortgagee or trustee, for the collection of any judgement or
other judicial process requiring the payment of money by Landlord in the event
of any default or breach by Landlord with respect to any of the terms, covenants
and conditions of this Lease to be observed and/or performed by Landlord, and no
other assets of the Landlord shall be subject to levy, execution, or other
procedures for the satisfaction of Tenant's remedies. In the event Landlord
transfers this Lease and the Premises, except as collateral security for a loan,
upon such transfer Landlord shall be released from all liability and obligations
provided that the transferee assumes the obligations of Landlord under this
Lease.
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33. 0000 XXXXX XXXX XXXX LEASE (THE "CRUMS LEASE").
Upon commencement of this lease, BISYS Insurance Services, Inc. shall have
the right to compel A/A Realty Associates to sub-lease any or all of premises
under the same terms and conditions as the original lease between the parties.
During the term of said lease for premises situate at 0000 Xxxxx Xxxx Xxxx and
the corresponding sublease, A/A Realty grants BISYS Insurance Services, Inc. the
right of first refusal to lease any or all space which is available or becomes
available at 0000 Xxxxx Xxxx Xxxx during the term of said CRUMS Lease under the
same terms and conditions as set forth therein, provided the Tenant exercises
its option in writing within sixty (60) days notice to Landlord of its intention
to lease subject premises or any portion thereof. In the event Tenant, BISYS
Insurance Services, Inc., does not notify Landlord of its intention to exercise
its option, A/A Realty will have no further obligation under this right of first
refusal.
34. RIGHT OF FIRST OPTION TO LEASE.
In the event any space unleased by Tenant becomes available for lease,
Landlord shall immediately notify Tenant of the availability of such space, and
Tenant shall have the right within thirty (30) days of receipt of written
notification thereof, to lease said available space under the same terms and
conditions as contained in this Lease. In the event Tenant fails to exercise its
right to lease within said thirty (30) day period, Landlord shall have the right
to lease said space to any third party.
35. RIGHT OF FIRST REFUSAL TO PURCHASE.
In the event Landlord receives a written offer to purchase the Building
and Land which it wishes to accept, Landlord - shall immediately forward a copy
of said offer to purchase to Tenant, which shall have a right of first refusal
to purchase the Building and Land under the same terms and conditions as the
offer to purchase received by Landlord, provided said right of first refusal is
exercised in writing within thirty (30) days of receipt thereof.
36. SUCCESSORS AND ASSIGNS.
This Lease and the covenants and conditions shall inure to the benefit of
Landlord and be binding upon Landlord, its successors and assigns, and shall be
binding upon Tenant and its successors and shall inure to the benefit of Tenant
and its successors.
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37. NOTICES.
All notices, requests, consents, waivers, elections and demands
(collectively, "Notices") required or permitted under this Lease shall be in
writing and shall be personally delivered or sent by messenger, certified U.S.
mail (return receipt requested), express courier service or telecopier (with
confirmation copy sent by overnight delivery service unless receipt of the
telecopy is confirmed), in all cases with postage or charges prepaid, and any
such Notice shall be effective when first received where delivery is refused):
If to Landlord:
A/A Realty Associates 0000 Xxxxx
Xxxx Xxxx Xxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx, P.C.
Telecopier: 000-000-0000
to Tenant:
BISYS Insurance Services, Inc.
0000 Xxxxx Xxxx Xxxx Xxxxxxxxxx,
XX 00000 Attn: Xxxxxxx X.
Xxxxxxxx Telecopier: 000-000-0000
with a copy to:
Xxxxxxxx & Xxxxxxxxxx
000 Xxxxx Xxxxx
X.X. Xxx 0000
Xxxxxxxx, XX 00000-0000
Attn: V. E. Kinon, Esq.
Telecopier: 000-000-0000
Any party may alter the address to which Notices are to be sent by giving notice
of such change of address in conformity with the provisions of this section for
the giving of Notices.
38. APPLICABLE LAW.
This Lease shall be enforced and interpreted in accordance with the laws
of the Commonwealth of Pennsylvania.
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39. INTERPRETATIONS.
Unless specifically stated to the contrary, this Lease shall include by
reference the terms and conditions of all Exhibits and Schedules attached.
Captions, the index and headings are for the convenience and reference only and
in no way shall be used to construe or modify the provisions set forth in this
Lease. The singular shall include the plural, the plural shall include the
singular; and the use of any gender shall refer to any other gender, all where
applicable.
40. BROKER'S COMMISSION.
Landlord acknowledges that it has utilized the services of C. B. Xxxxxxx
Xxxxx as its broker and agrees that it will enter into a commission agreement
with C. B. Xxxxxxx Xxxxx in consideration for its services.
Each of the parties represents and warrants that there are no other claims
for brokerage commissions or finder's fees in connection with the execution of
this Lease. Each party hereto shall indemnify and hold the other party harmless
from any claim for brokerage fees or commissions from any broker or other entity
claiming a right through the indemnifying party, except as provided herein.
41. ESTOPPEL CERTIFICATE.
Tenant agrees that at any time and from time to time, within fifteen (15)
days after written request by Landlord, Tenant will execute, acknowledge and
deliver to Landlord and to such assignee, mortgagee or other party as may be
designated by Landlord, a certificate (in a form to be specified by Landlord)
stating to the extent accurate: (a) that by such certificate the Lease is
ratified; (b) the date on which Tenant has entered into occupancy of the
Premises; (c) the amount of the monthly portion of the Annual Basic Rental; (d)
that the Lease (unmodified or as modified, as the case may be) represents the
entire agreement between the parties as to the leasing (or if such is not the
case, the certificate shall so state, specifying the particulars of any other
applicable agreement or statement of facts) and is in full force and effect; (e)
the date on which the Lease expires; (f) that, as of the date of the
certificate, there are no defaults by Landlord or Tenant under the Lease,
including without limitation that all conditions under the Lease to be performed
theretofore by Landlord have been satisfied and there are no existing defense or
offsets which Tenant has against the enforcement of the Lease by Landlord (or,
if such is not the case, the certificate shall so state specifying the
particulars); (g) the amount of Advance Rental which has been deposited with
Landlord; (h) the month and year through
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which the Annual Basic Rental has been paid; and (i) such other matters relating
to the Lease as may be reasonably requested by Landlord. In the event that
Tenant fails to provide such certificate within fifteen (15) days after written
request by Landlord, Tenant shall be deemed to have approved the contents of the
certificate and Landlord is authorized to so certify.
42. NOT A JOINT VENTURE.
Any intention to create a joint venture or partnership relation between
the parties is expressly disclaimed.
43. NO OPTION.
The submission of this Lease for examination does not constitute a
reservation of or option for the Premises. This Lease shall become effective
only upon approval, execution and delivery of this Lease by Landlord.
44. NO MODIFICATION.
This writing is intended by the parties as a final expression of their
agreement and as a complete and exclusive statement of the terms, all
negotiations, considerations and representations between the parties having been
incorporated. No course of prior dealings between the parties or their officers,
employees, agents, or affiliates shall be relevant or admissible to supplement,
explain, or vary any of the terms of this Lease. Acceptance of, or acquiescence
in, a course of performance rendered under this or any prior agreement between
the parties or their affiliates shall not be relevant or admissible to determine
the meaning of any of the terms of this Lease. No representations,
understandings, or agreements have been made or relied upon in the making of
this Lease other than those specifically set forth. This Lease can only be
modified by a writing signed by the parties against whom the modification is
enforceable.
45. SEVERABILITY.
If any term or provision, or any portion, of this Lease or the
application, to any person or circumstances shall, to any extent be invalid or
unenforceable, the remainder of this Lease, or the application of such term or
provision to person or circumstances other than those as to which it is held
invalid or unenforceable, shall not be affected, and each term and provision of
this Lease shall be valid and, be enforced to the fullest extent permitted by
law.
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46. THIRD PARTY BENEFICIARY.
Nothing contained in this Lease shall be construed so as to confer upon
any other party the rights of a third party beneficiary (except rights contained
for the benefit of Landlord's ground lessor, and for mortgage or trustee, as the
case may be).
47. CORPORATE TENANTS.
In the event Tenant is a corporation, the persons executing this Lease on
behalf of Tenant covenant and warrant that: Tenant is a duly constituted
corporation qualified to do business in the Governing Municipality and the
execution of this Lease has been duly authorized by Tenant. The authorized
officers must sign on behalf of the corporation and, by doing so, such officers
make the covenants and warranty contained in this Section 45. The Lease must be
executed for Tenant, if a corporation, by the President or Vice-President and be
attested by the Secretary or Assistant Secretary, unless the By-Laws or a
resolution of the Board of Directors shall otherwise provide, in which event, a
certified copy of the By-Laws or resolution, as the case may be, must be
furnished.
48. OPTIONAL EXTENSION. Tenant shall have two (2) options to extend the term of
this Lease for a period of five (5) years each (the "Renewal Term(s)"),
exercisable only upon the following conditions:
A. Tenant or its subtenant or assignee is in possession of the Premises
and not in default under any of the terms of conditions of this Lease which
default continues after notice thereof and the expiration of any applicable cure
period;
B. Each such option must be exercised by written notice sent to Landlord
at least two (2) months prior to the end of the prior Term; and
C. During each of the Renewal Term(s) all terms and provisions of the
Lease shall remain the same and in full force, except that Basic Rental for the
Renewal Term(s) shall be as set forth in Section 1(1)(1-3).
49. LANDLORD'S WARRANTIES.
A. Landlord represents and warrants that:
(1) The Building electrical system is sufficient to supply electric
current for the operation of equipment, including but not limited to, normal and
usual desk-top office equipment,
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computers, telefax, word processing and photocopying machines and other similar
equipment used in business offices.
(2) The Building electrical system is sufficient to supply electric
current for Tenant's intended uses.
(3) The Building electrical system is capable of furnishing a
minimum of 16.5 xxxxx of electrical power per usable square foot.
B. Landlord represents that the heating, ventilating and air-conditioning
system ("HVAC system") serving the Premises shall meet the following performance
criteria:
(1) Summer conditions: The entire air-conditioning system for all
spaces except the Computer Room is to maintain a 74 degrees Fahrenheit Dry Bulb
temperature, plus or minus 2 degrees Fahrenheit, and a 50% relative humidity,
plus of minus 5%, at 95 degrees Fahrenheit Dry Bulb outdoor temperature.
(2) Winter conditions: The entire heating system for all spaces
except the Computer Room is to maintain a 72 degree Fahrenheit Dry Bulb
temperature, plus or minus 2 degrees Fahrenheit, with relative humidity not to
drop below 40%, at a minute 10 degrees Fahrenheit Dry Bulb outside temperature.
(3) The HVAC system shall at all times provide fresh air in a
quantity of not less than 0.25 cubic feet per minute per square foot of the
floor area.
C. Landlord represents and warrants that on the Commencement Date, the
Premises and Building will comply with all applicable laws, rules, regulations
and ordinances of all federal, state, county and municipal authorities having
jurisdiction thereof (individually called "Law", collectively called "Laws"),
including without limitation, fire, environmental, health, and safety laws.
Landlord shall at its expense promptly comply with all laws to which the
Premises and Building may be subject during the Tenant's Lease Term (other than
compliance required by reason of Tenant's particular and unique manner of use of
the Premises), including, without limitation, Laws requiring the making of any
structural repairs, modifications, capital expenditures or improvements. Any Law
requiring the installation of sprinklers, fire-retarding or compartmentalizing
walls, or fire detection or extinguished equipment in the Premises shall be
complied with by Landlord at its sole expense.
(1) Landlord's Failure to Comply. If Landlord's failure to comply
promptly with any Law results in interference with Tenant's business, operations
or in potential liability, legal action, or danger to the health, safety or
welfare of Tenant or its employees or invitees, Tenant shall have the right,
after written
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notice to Landlord, to comply with such Law, and Landlord shall promptly
reimburse Tenant for Tenant's costs of such compliance. If Landlord fails to
reimburse Tenant for such costs within thirty (30) days after Tenant's invoice
therefor to Landlord, Tenant shall have the right to deduct such amounts from
Annual Base Rent and additional rent, if any, payable under this Lease.
D. Toxic Materials or Substances Warranty. Landlord warrants and
represents that no part of the Premises, Building or the Land upon which the
same is located, including without limitation, the walls, ceilings, buildings
ventilation system, structural steel, flooring, pipes or boilers, is wrapped,
insulated, fireproofed or surfaced with any toxic, hazardous or unlawful
substance or materials that might be harmful or injurious to the health, safety
or welfare of Lessee or its employees or invitees, including, without
limitation, asbestos or formaldehyde (hereinafter "TCM").
(1) During the Lease Term if any testing or examination indicates
the presence of TCM in the Premises, Building, or on the land, upon thirty (30)
days written notice to Landlord, Landlord shall remove such TCM and restore the
affected area to its prior condition, but the new con-TCM wrapping, insulation,
fireproofing or surfacing. Such removal and restoration shall be performed by
Landlord at its sole expense:
(a) in compliance with all applicable Laws governing,
handling, removal, or disposal of TCM;
(b) in the safest manner possible; and
(c) so as to minimize any interference with Tenant's
business operations.
(2) If within thirty (30) days after receipt of Tenant's notice
Landlord has not completed such removal and restoration, Tenant shall have the
option, but not the obligation, either to terminate this Lease effective upon
the date set forth in Tenant' s notice, or to hire any contractors and experts
Tenant reasonably deems necessary to perform such removal and restoration.
(3) Tenant shall have the right to claim from Landlord all damages
arising out of Landlord's breach of the warranty and representation contained in
the above. In addition, if Tenant performs such removal and restoration of the
area affected by TCM, Tenant shall have the right to claim from Landlord all
costs, and expenses associated therewith, including without limitations:
(a) restoration;
(b) removal and disposal of TCM;
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(c) air quality and materials testing, including
analyzing the Building ventilation system to be sure
that TCM fibers are not circulated or vented in to
the Premises;
(d) related consultants' and experts' fees; and
(e) fines, fees or costs of any nature whatsoever charged
or assessed by any governmental authority or agency
regulating or supervising such removal and disposal
of TCM. If Landlord fails to reimburse Tenant for
such amounts promptly after receipt of Tenant's
invoice therefor, Tenant shall have the right to
deduct such amounts from the Base Rent and Additional
Rent payable under this Lease.
E. Landlord represents and warrants that it is the sole owner of the
Building and the Land upon which the Premises is located, that is has the full
right and authority to enter into this Lease, and that the execution of this
Lease by the officer(s) executing it as Landlord's agent(s) has been duly
authorized by all required actions of Landlord's Board of Directors. Prior to
execution of this Lease, Landlord shall furnish Tenant with appropriate
documents satisfactory to Tenant documenting the authority if the officer(s) of
Landlord who will sign this Lease.
50. ARBITRATION.
Any dispute arising out of this Lease shall at the option of either party
be settled by arbitration. Within ten (10) days after either party shall have
requested arbitration in writing, the parties shall agree on an impartial
arbitrator, and failing agreement, such arbitrator shall be selected by the
American Arbitration Association at the request of either party. The arbitration
shall be conducted in accordance with the then current rules of the American
Arbitration Association, and judgment upon the award granted by the arbitrator
may be entered in any court having jurisdiction thereof. Fees, costs and
expenses of the arbitrator shall be borne by the party against whom the
arbitration shall be determined, or in such proportions as the arbitrator shall
designate.
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51. CONDITION PRECEDENT.
As a condition precedent to entering into this Lease, Landlord represents
and warrants to Tenant that (i) neither the Building, the Premises, not the land
upon which the same are located have been used to dump, discard, landfill,
deposit or dispose of any substance material above, on or below ground, which is
toxic or hazardous to human health, which would constitute unlawful disposal
and/or which would require clean up, removal or special disposal under current
federal and/or state environmental laws or regulations; (ii) there are not
underground tanks or toxic hazardous substances used in or about the Building,
Land or the Premises including, but not limited to PCB, asbestos, Urea
Formaldehyde Foam Insulation or the like; and (iii) the Building, Land and the
Premises are in full compliance with all pending laws and federal environmental
laws, including but not limited to, all applicable rules and regulations related
thereto. Landlord shall indemnify and hold Tenant harmless from and against *
any liabilities, losses, and costs, including Tenant's reasonable counsel fees,
which Tenant may incur by reason of Landlord's breach of the foregoing
representation and warranty and shall, at Landlord's sole cost and expense,
immediately remove any hazardous substance from the Premises. The foregoing
provision shall survive the termination, expiration or cancellation of this
Lease.
52. DEMISE.
The Tenant, at no additional cost therefore, shall have the right to the
exclusive use of the delivery areas serving the Building of which the Premises
is a part, to the exclusive use of the access driveways and allocated parking
spaces for its business purposes and for those of its agents, servants,
employees or invitees, and to the exclusive use of the entire parcel of Land
upon which the Building has been constructed.
53. COMPLETE BUILDING.
While the Exhibits attached hereto represent work to be completed by
Landlord in connection with this Lease, it is understood and agreed by the
parties hereto and warranted by the Landlord the Tenant that Tenant is leasing
among other things a completed Building ready for occupancy as an integrated
unit together with appropriate amenities consistent with a first class office
Building. The parties recognize that it is difficult if not impossible to list
all items required to construct such a Building; however, it is the intent of
the Landlord to complete and deliver a completed Building for Tenant's business
use. Landlord, as a construction and development expert warrants and represents
to Tenant that the Building upon completion and delivery shall be a fully
integrated project and usable by Tenant without further
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construction or addition, except as set forth herein for the purpose intended by
Tenant.
IN WITNESS WHEREOF, the parties hereto intending to be legally bound
hereby have executed this Lease as of the day and year above written.
WITNESS: LANDLORD:
A/A REALTY ASSOCIATES
By:
----------------------------------------
WITNESS: TENANT:
BISYS INSURANCE SERVICES, INC.
By:
----------------------------------------
Date: 02/18/00
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