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Exhibit 10.16
LEASE
THIS LEASE, made this ____ day of ____________ 19__, between A/A REALTY
ASSOCIATES with offices at 0000 Xxxxx Xxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000,
hereinafter called "LANDLORD",
AND
BISYS INSURANCE SERVICES DIVISION (T.U.G., 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 III office
Building, having an address of ________________________________________________.
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 III OFFICE BUILDING
B. LANDLORD'S MAILING ADDRESS: 0000 Xxxxx Xxxx Xxxx
Xxxxxxxxxx, XX 00000
C. TENANT'S MAILING ADDRESS:
D. PREMISES (Sect. 3): As shown on Exhibit A
Total Floor: 33,982 Square Feet
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Premises shall include building, land, parking area and all
improvements thereon.
E. PERMITTED USE (Sect. 5): Any lawful purpose
F. GUARANTOR: None
G. TERM (Sect. 4): Ten (10) Years
Commencement date shall be: The last to occur of (i) the date the
Premises can be used in its entirety for Tenant's business; or (ii) the date of
Occupancy Permit issuance as required by the governing Municipalities, and the
Premises are Ready for Occupancy. Subject to the provisions of Section 10.A.
hereof, in the event the Commencement Date has not occurred by , Tenant may
cancel this Lease by notice to Landlord.
Expiration shall be at midnight on the last day of the final month of
the term, as defined in Section 2(H).
H. ANNUAL BASIC RENTAL (Sect. 7):
Years 1-5: $11.00 PSF ($373,802.00 per annum)
Years 6-10: shall be increased to $11.10 PSF ($377,200.20 per annum),
and in addition thereto, shall be increased or decreased by the proportionate
percentage that the interest rate on the loan obtained by Landlord and secured
by a first mortgage on the Premises is increased or decreased between the date
of commencement of this Lease and the fifth anniversary of such date.
I. SECURITY DEPOSIT (Sect. 9): One (1) months Basic Rental
J. TAXES: Tenant agrees to pay all Taxes, prior to delinquency,
as defined in Section 2 (I). Annually, upon request by Landlord, Tenant shall
provide proof of said payment to Landlord.
K. OPERATING EXPENSES: Tenant agrees to pay all Operating
Expenses as defined in Section 2(H).
L. OTHER: Tenant agrees to pay the actual costs of insurance
attributable to the building.
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
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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 33,982
square feet.
B. "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.
C. "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 Demised Premises shall not be deemed unready or incomplete if
only minor or insubstantial details of the construction, decoration or
mechanical adjustments remain to be done, or if any delay in the availability
for Tenant's occupancy is caused in whole or in part by Tenant.
D. "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 all charges shall be apportioned
accordingly.
E. "Operating Expenses" shall mean, but not be limited to, the
cost and expense for the operation, maintenance and replacements, other than
structural replacements as defined in Section 14, of the building, grounds and
land on which the Premises are located.
F. "Taxes" shall mean for any calendar year, all real estate and
other ad valorem taxes and assessments levied against the Building Area, Common
Areas and all land and improvements upon which the Premises are located and are
a part, 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 acres
upon which the Building and related improvements are to be constructed by
Landlord.
3. PREMISES AND IMPROVEMENTS.
Tenant leases entire Building and Land, including parking areas for
Tenant's exclusive use. Neither Landlord nor any other party shall have any
right to construct any other building and/or improvements on any portion of the
Land during the term of this Lease as Tenant is entitled to exclusive use
thereof.
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Outline specifications describing the Improvements to be provided and
installed by Landlord at its expense, and the Improvements to be provided and
installed by Tenant at its expense, have been agreed to by the parties as set
forth in Exhibit "B" attached and made a part of this Lease.
4. TERM & EXPIRATION.
A. The term of this Lease (the "Term"), shall commence on and
shall be for the number of months and/or years set forth in Section l(G).
B. Subject to Tenant's specific right to cancel in Section 1(G)
hereof, if the Premises are not substantially "Ready for occupancy" on the
commencement date set forth, the commencement date of the Term of this Lease
shall be the date Tenant is tendered delivery of the possession of the Demised
Premises Ready for occupancy in accordance with Section 1(G), or the date Tenant
takes possession of the Demised Premises, whichever date is earlier. The Lease
Term shall expire at 12:00 O'clock, Midnight, on the last day of the calendar
month which completes the number of year(s) set forth in Section 1(G).
As soon as determined, Landlord and Tenant shall confirm in
writing the commencement and expiration dates, and that the Lease is in effect
and that Tenant is in occupancy.
C. This Lease shall expire in accordance with Section l(G)
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 six
months prior to the expiration of the Term, 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, all rentals as defined in Section 6 shall become twice
the amounts.
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.
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F. Upon execution of this Lease, Landlord and Tenant will
execute a short form of Lease in the form attached hereto as Exhibit " ",
which short form of lease may be recorded in the appropriate county offices, at
the discretion of Tenant.
5. USE OF THE PREMISES.
A. Tenant shall use the Premises as permitted in Section l(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(H), 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.
Annual Basic Rental, as set forth in Section l(H), shall be payable in
equal monthly installments in advance, without demand and/or set off, on the
first (1st) day of each full calendar month during the Term, the first such
payment to include also any prorated Annual Basic Rental for the period from the
date of the commencement of the Term to the first day of the first full calendar
month in the term.
8. PAYMENT OF RENTALS.
A. Tenant covenants to pay all Rentals when due and payable, without
any setoff, deduction or prior demand. All moneys paid or expenses incurred by
Landlord to correct violations of any of Tenant's obligations shall be payable
to Landlord as additional rental. Any additional rental provided for in this
Lease which shall become due, shall be payable 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 tine to time, designate to Tenant.
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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 and one-half (1-1/2%) percent of the outstanding balance per month
for any rental payment not made within seven days of the due date.
9. SECURITY DEPOSITS.
A. Landlord acknowledges receipt from Tenant of the sum set forth
in Section l(I) to be held by Landlord as security for Tenants satisfactory
performance of the terms, covenants and conditions of this Lease including the
payment of Basic Rent and Additional Rent.
B. 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 Additional Rent 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 of any of the terms, covenants and conditions of this lease
including any damages or deficiency in the re-letting of the Demised Premises or
other reentry by Landlord.
C. If Landlord uses, applies or retains the whole or any part of
the security, Tenant shall replenish the security to its original sum twenty
(20) days after being notified by the Landlord of the amount due. Tenant shall
be in default of this Lease if the amount due is not paid within the required
time period.
D. In the event of a sale or leasing of the real property or any
part thereof, of which the Demised Premises form a part, Landlord shall have the
right to transfer the security to the vendee or lessee, and if such transfer
occurs, Landlord shall be released by Tenant from all liability for the return
of said security provided that the new Landlord acknowledges in writing its
obligation to return the security deposit and that the provisions hereof shall
apply to every transfer or assignment made of the security to a new Landlord.
E. Tenant covenants that it shall not assign or encumber the
security deposit given to Landlord pursuant to this Lease. Neither Landlord, its
successors or assigns shall be bound by any such assignment or encumbrance or
any attempted assignment or encumbrance.
F. Any part of the security not used or retained by Landlord
shall be returned to Tenant within thirty (30) days after delivery of exclusive
possession of the Demised Premises to Landlord.
10. LANDLORD'S IMPROVEMENTS; READY FOR OCCUPANCY.
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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 the performance of all work to be performed by it in
accordance with Exhibit "B".
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(C)); and (c) agreed that the obligations of Landlord under Exhibit "B"
have been fully performed, except for any punch list items which shall be set
forth in writing by Tenant.
11. 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 its plan for the Building
Area including, but not limited to, additions to, subtractions from,
rearrangements of, alterations of, modifications of or supplements to the
building areas, walkways, hallways, stairwells, escalators, elevators,
driveways, or other common facilities; (b) construct other improvements in the
Building Area and to make alterations or additions; and (c) make or permit
changes or revisions in the Building Area, including additions, and to convey
portions of the Building Area to others for the purpose of constructing other
improvements, including additions and alterations.
12. 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, Agent or such other parties as Landlord shall designate.
B. No work or installation by Tenant at the Demised 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 or its Agent, 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 12, whether in the nature of erection,
construction, alteration or repair, shall be deemed to be made upon the express
or implied request of, nor for the immediate use and benefit
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of, Landlord, so that no mechanic's or materialmen'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, services or materials
performed or furnished to Tenant or to anyone holding the Premise; 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 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 12.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, provided Tenant shall not at such tine be in default
of any terms or covenants of this Lease; 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. If Tenant is in default,
Landlord shall have benefit of any applicable lien on Tenant's property located
in or on the Premises as may be permitted under the laws Of the Governing
Municipality, and in the event such lien is asserted by Landlord in any manner
or by operation of law, Tenant shall not remove or permit the removal of said
property until the lien has been removed and all defaults have been cured.
13. OPERATION BY TENANT.
A. In regard to use and occupancy of the Premises, Tenant will at
its expense: (a) keep the inside and outside of all glass in the doors and
windows of the Premises clean; (b) keep all exterior surfaces of the Premises
clean; (c) replace promptly any cracked or broken glass of the Premises with
glass of like kind and quality; (d) maintain the Premises in a clean, orderly
and sanitary condition and free of insects, rodents, vermin and other pests; (e)
keep any garbage, trash, rubbish or refuse in rat-proof containers within the
interior of the Premises until removed (f) have such garbage, trash, rubbish and
refuse removed on a daily basis; (g) 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.
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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 Common 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 in excess of that allowed by law; (h)
Store, use or allow to be used on the Demised Premises any article or substance
which is considered to be hazardous, flammable, explosive or having an offensive
odor; (i) Enter upon the roof of the building; (j) Use electricity in the
Demised Premises in excess of the capacity of any of the electrical conductors
and equipment in or otherwise serving the Demised Premises, or add to or alter
the electrical system serving the Premises or connect thereto any additional
fixtures, appliances or equipment other than lamps, typewriters and similar
small offices machine; (k) Execute or deliver any financing or security
agreement or statement that would be a lien upon the Demised Premises or the
land or Building.
C. Tenant shall keep the Demised 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 damage as set forth in Section 16 hereof on
demand pay Landlord, as additional rent, the cost of repair of the Demised
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. Tenant and Landlord shall use every reasonable precaution
against fire, or other casualty.
E. Tenant shall give Landlord prompt written notice of any
accident, fire, casualty or damage occurring on or to the Demised Premises, and
of any defects in the apparatus in the Demised Premises.
F. Tenant shall obey the Rules and Regulations as set forth in
Exhibit D of this Lease, which may at time or from time to time, upon prior
written notice to Tenant, be changed by Landlord.
G. Tenant shall promptly correct any violation and comply with
all laws, ordinances, notices, permits, or statements of occupancy,
requirements, orders, regulations and recommendations, now or hereafter in
effect and of whatever nature, if any, and all the Federal, State, County,
municipal and/or other authorities and of the Board of Fire Underwriters and any
insurance organizations or associations, and/or companies, with respect to
Tenant's conduct or use of the Demised Premises.
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14. STRUCTURAL REPAIRS.
A. Landlord will be responsible for structural repairs to
exterior walls, exterior roof, structural columns, structural floors of the
Building Area; Landlord shall also be responsible for major repairs ("Major
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 (excluding any doors, door frames, windows and glass); 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. Major Repairs shall be
defined as any repair that costs in excess of $2,500 to complete in a
workmanlike manner. 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. 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. Tenant will have the benefit of any and all construction
warranties Landlord has obtained for any repairs, and Landlord shall use its
best efforts with the contractor to cover those repairs under the construction
warranties.
C. 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 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.
15. INTERIOR REPAIRS.
A. Tenant will keep the interior of the Premises, together with
all electrical, plumbing and other mechanical installations, excluding items
Landlord is to repair pursuant to Section 14 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 it may vacate the Premises 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, subject to the provisions of Section 21 hereof, 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
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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, and any other cost
which Landlord might reasonably incur.
16. DAMAGE TO PREMISES.
Except for damage by casualty, 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 Area and
Common Areas, caused by negligence or willful acts of Tenant, its
concessionaires, officers, employees, licensees or contractors, regardless of
fault or by whom such damage shall be caused, 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 promptly upon Landlord's demand 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 which Tenant contract for in the Governing
Municipality.
17. 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 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, Agent or such other parties as Landlord shall
designate.
18. SIGNS AND ADVERTISING.
Tenant, at Tenant's sole cost and expense, may install any sign at the
Building subject to Local Ordinance.
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19. 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.
20. 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 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 it 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).
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.
21. INSURANCE.
A. Landlord will keep in force as long as this Lease remains in
effect and during such other time as Tenant occupies the Premises or any part:
(1) An all risk insurance policy or fire insurance policy
with respect to the premises based upon coverage limits of not less
than a reasonable estimate of the cost of replacing the Building.
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) The company and the form of the insurance shall be
subject to Tenant approval after consultation with Tenant to obtain the
most favorable premium.
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Tenant shall be responsible for the cost of the insurance as set forth
in Section 1.L. hereof.
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, plate glass, trade fixtures, floor
covering, furniture and other property removable by Tenant and Tenant's
leasehold improvements 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 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. If the nature of Tenant's operation is such as to place any or all of
its employees under the coverage of local workmen's 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,
workmen's compensation or similar insurance affording statutory coverage and
containing statutory limits. If Tenant shall not comply with its covenants made
in this Section 21, 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 tines as contractor is working in the Premises (including, without
limitation, the performance of Exhibit "B" work): (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.
22. 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 Area, 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 of Landlord, 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. To the maximum extent permitted by law, Tenant agrees to use
and occupy the Premises and the Building Area as Tenant is given the right to
use at Tenant's own risk. The provisions of this Section shall be applicable
from and after the execution 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 or any portion of the Building Area.
D. Landlord shall indemnify and save harmless Tenant and its
agent against and from (a) any and all claims, actions, costs, recoveries and
legal expense (i) arising from (x) the conduct Landlord, its employees, agents,
contractors or invitees, or (y) any work or thing whatsoever done, 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 of any such claim, Landlord, upon notice from Tenant, shall
resist and defend such action or proceeding. The provisions of this Section
22(D) shall survive the expiration or sooner termination of this Lease.
23. INCREASE IN INSURANCE PREMIUMS: WAIVER OF SUBROGATION.
A. Tenant will not do or suffer to be done, or keep or suffer to
be kept, anything in, upon or about the Premises which will contravene
Landlord's policies insuring against loss or damage by fire or other hazards
(including, without limitation, public liability) or which will prevent Landlord
from procuring such policies in companies acceptable to Landlord. If anything
done, omitted to be done or suffered by Tenant to be kept in, upon or about the
Premises shall cause the rate of fire or other insurance on the Premises or on
other property of Landlord or of others within the Building Area to be increased
beyond the minimum rate from time to time applicable to the Premises or to any
such property for the use or uses made, Tenant will pay, as additional rent, the
amount of any such increase upon Landlord's demand. Tenant's lawful use of the
Premises will not cause any rights of Landlord under this Section to accrue.
B. Landlord shall cause each insurance policy carried by it
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. Tenant will cause each
insurance policy carried by it insuring the Premises as well as the contents,
including trade fixtures and merchandise, against loss by fire or any of the
casualties covered by all-risk insurance to be written to provide that the
insurer waives all right of recovery by way of subrogation against Landlord in
connection with
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any loss or damage covered by the policy. Neither party 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 23(B) shall have no
effect. It is agreed that, should either party fail to procure such waiver, if
available, it will pay to he other in liquidated damages all monies to which any
subrogee becomes entitled and the cost of reasonable legal defense of any claim
for subrogation.
24. FIRE OR OTHER CASUALTY.
A. If the Premises shall be damaged by fire, the elements,
accident or other casualty ("Casualty"), and provided that the damage shall not
have been caused by negligence or willful acts of Tenant, its concessionaires,
officers, employees, licensees or contractors, but 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
Paragraph A and B of Exhibit "B") , and the Annual Basic Rental 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 tenantable. If, as the result of Casualty, and provided that the damage
hall not have been caused by negligence or willful acts of Tenant, its
concessionaires, officers, employees, licensees or contractors, the Premises are
rendered wholly untenantable, subject to the provision of this Section 24(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 no event shall Landlord be liable for interruption to Tenant's
business or for damage to or 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 required to restore the Premises to its condition prior to the
occurrence of the damage cannot be, or are not, completed within four (4) months
of the occurrence of the damage, or (d) if the Building Area is damaged to the
extent of fifty (50%) percent or more of the Floor Area, then in any event,
Landlord or Tenant may immediately terminate this Lease by giving to the other
party notice within ninety (90) days after the occurrence of such event. Annual
Basic Rental and other charges shall be adjusted as of the date of such
termination.
C. If the Building Area 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 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 damage.
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25. CONDEMNATION.
If the whole or any part of the Premises, parking area and/or access to
or from any adjacent public roadway shall be taken under the power of eminent
domain, this Lease shall terminate as to the part so taken on 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 shall be reduced
proportionately as the portion of the Premises so taken. If the portion of the
Premises so taken substantially impairs the usefulness of the Premises for the
purposes set forth in Section l(E), 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 Area 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.
26. 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.
27. NO ASSIGNMENTS OR SUBLETTING.
A. Tenant may assign or sublet for a Permitted Use only all or
any part of the Premises, or license concessions or lease departments, with
prior notice to Landlord but without the prior consent of 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 prohibition includes any subletting or
assignment which would otherwise occur by operation of law, merger,
consolidation, reorganization, 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
of law or other disposition (including such a transfer to or by a
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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. 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).
28. QUIET POSSESSION; SUBORDINATION; ATTORNMENT.
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, substitutions, increases, supplements,
consolidations and extensions thereof, subject to Tenant's right of peaceful,
quiet and undisturbed use and possession of the Premises.
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 by Landlord and
Lender, or such longer period provided to Landlord under this Lease, provided
that if such default is not capable of being cured within such period, Landlord
and Lender shall also have a reasonable period of time after the expiration of
the cure period to cure such default provided it diligently proceeds with its
efforts to cure. 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 of 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
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such attornment and recognize Tenant's rights of possession and use of the
Premises in accordance with the provisions of this 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 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; 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 or 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 forms 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 28 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 sound 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.
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29. 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 thirty (30) days) Tenant or its guarantor for
bankruptcy, a corporate reorganization of 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 in Section 34(B).
30. 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
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 for which Landlord may contract in the
governing municipality.
31. REMEDIES OF LANDLORD.
A. If the rent agreed to be paid pursuant to Section 6 shall be
in arrears in whole or in part for ten (10) or more days, Landlord may distrain
therefore. If Tenant shall violate either (a) the covenant to pay rent and shall
fail to comply with said covenant within ten (10) days after the time such rent
is due and payable to Landlord, or (b) any other covenant, and shall fail to
comply or commence compliance within ten (10) 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 lands and
tenements held over by Tenant or proceedings in forcible entry and detainer. To
the extent permitted by law, Tenant waives notice of reentry or institution of
legal proceedings to that end, and any right of redemption, reentry or
repossession.
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B. Landlord may perform for the account of Tenant any such
default of Tenant and immediately recover 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. Landlord may accelerate all rent and additional rent due for
the balance of the term of this Lease 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, 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, 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
charged 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 them, whether or not exercised
by Landlord, shall be deemed to be in exclusion of any of the others.
32. 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.
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33. 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 buildings comprising the Premises, 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,
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.
34. 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.
35. 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 by the addressee at its
address set forth below (or when tendered for delivery, in cases 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
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If to Tenant:
BISYS Insurance Services Division
(T.U.G., Inc.)
0000 Xxxxx Xxxx Xxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxx
Telecopier: 717-657-2345
with a copy to:
Xxxxxx Xxxxxxx Xxxxxx & Xxxxxxx
One South Market Square Building
000 Xxxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxxxx, XX 00000-0000
Attn: Xxxxxxxxxxx X. Xxxxxxx, 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.
36. APPLICABLE LAW.
This Lease shall be enforced and interpreted in accordance with the
laws of the Governing Municipality.
37. INTERPRETATION.
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.
38. BROKER'S COMMISSION.
Each of the parties represents and warrants that there are no claims
for brokerage commissions or finder's fees in connection with the execution of
this Lease.
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39. 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 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.
40. NOT A JOINT VENTURE.
Any intention to create a joint venture or partnership relation between
the parties is expressly disclaimed.
41. 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.
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42. 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.
43. 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.
44. 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).
45. 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 55. 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. Also, the corporate seal of Tenant, if Tenant has such a seal, must
be affixed.
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46. OPTIONAL EXTENSION. Tenant shall have two (2) options to extend the
term of this Lease for two periods of five (5) years each (the "Renewal
Term(s)"), exercisable only upon the following conditions:
A. Tenant is in possession of the Premises and not in default
under any of the terms or 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 last lease year 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 the Rent Section below.
47. 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, 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 xxxxx of electrical current 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 or 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.
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(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 extinguishing 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 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 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
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(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 limitation:
(a) restoration;
(b) removal and disposal of TCM;
(c) air quality and materials testing, including
analyzing the Building ventilation system to
be sure that TCM fibers are not circulated
or vented into 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 property which the same 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 of the officer(s) of
Landlord who will sign this Lease.
48. 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
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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.
49. CONDITION PRECEDENT. As a condition precedent to entering into this
Lease, Landlord represents and warrants to Tenant that (i) neither the Building,
the Premises, nor 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.
50. 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.
51. 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,
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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 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:_______________________________________
____________________________________ Its:______________________________________
____________________________________ Date:_____________________________________
WITNESS: TENANT:
BISYS INSURANCE SERVICES DIVISION
(T.U.G., INC.)
____________________________________ By:_______________________________________
Its:______________________________________
Date:_____________________________________
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BUILDING LEASE
BY AND BETWEEN
A/A REALTY ASSOCIATES
AND
BISYS INSURANCE SERVICES DIVISION (T.U.G., Inc.)
