EXHIBIT 10.6
____________
WEST ALLIS CENTER
OFFICE LEASE
This Lease is made as of this 30th day of January , 1998, by and
between 1126 West Allis Operating Associates, Limited Partnership
(hereinafter called "LESSOR") and MERGE TECHNOLOGIES, INC. (hereinafter
called "LESSEE").
ARTICLE I
BASIC LEASE PROVISIONS
A. ADDRESS OF LEASED PREMISES: Suite S104, 0000 Xxxxx 00xx Xxxxxx, Xxxx
Xxxxx, Xxxxxxxxx 00000.
B. TERM: 6 years, 7 months, 0 days, commencing February 1, 1998, and
ending August 31, 2004.
C. AREA: Usable Area 2025 square feet
Allotted Common Area 243 square feet
Total Area 2268 square feet
D. BASE MONTHLY RENT: Three Thousand, Two Hundred, Thirteen and no/100
dollars ($3,213.00).
E. SECURITY DEPOSIT: None dollars ($-00-).
F. ADDRESS FOR NOTICES AND PAYMENTS:
LESSOR: 1126 West Allis Operating Associates, Limited Partnership
West Allis Center
0000 Xxxxx 00 Xxxxxx
Xxxx Xxxxx, Xxxxxxxxx 00000-0000
LESSEE: Merge Technologies, Inc.
0000 Xxxxx 00xx Xxxxxx
Xxxxx X000X
Xxxx Xxxxx, XX 00000
ARTICLE II
LEASED PREMISES
2.1 LESSOR hereby leases to LESSEE and LESSEE leases from LESSOR for the
term, at the rental, and upon all of the conditions set forth herein that
certain real property situated in the City of West Allis, Milwaukee County,
Wisconsin which is located at the address specified in Item A of ARTICLE I
hereto and which is more particularly shown outlined in red on the floor
plan(s) attached hereto as Exhibit A. Said property is hereinafter
referred to as the "LEASED PREMISES."
ARTICLE III
BASE RENT
3.1 In consideration of the aforesaid leasing, LESSEE hereby agrees to
pay to LESSOR, at the address stipulated in Item F of ARTICLE I hereto, or
at such other address as LESSOR may from time to time designate by written
notice to LESSEE, the monthly rent called for in Item D of ARTICLE I
hereto. Said monthly rent (hereinafter called the "BASE MONTHLY RENT")
shall be payable without demand and in advance, on the first day of each
month during the term of this Lease. The BASE MONTHLY Rent payable
throughout each year during the term of this Lease, subsequent to the first
year of the lease term,
shall be adjusted in accordance with the terms of ARTICLE IV herein.
Rent for any partial month during the term of this Lease shall be prorated
on a per diem basis.
ARTICLE IV
RENT ESCALATIONS
4.1 The BASE MONTHLY RENT shall be escalated as of the first annual
anniversary date of the commencement of this Lease, and on each annual
anniversary date thereafter. The escalated rent shall be determined by
increasing the BASE MONTHLY RENT by the percentage increase, if any, in the
"Consumer Price Index." The base month for determining the increase in the
Consumer Price Index shall be the month two months prior to that in which
the term of this Lease commences. The comparison month shall be the month
two months prior to each annual anniversary date.
4.2 As used herein, the "Consumer Price Index" shall mean the "All Items"
index in the "Consumer Price Index for all Urban Consumers: U.S. City
average by expenditure category and commodity or service group (1982-84 =
100)," as published by the U.S. Department of labor, Bureau of Labor
Statistics.
4.3 Should the Consumer Price Index specified herein cease to be
published, the LESSOR shall, at its sole discretion, choose a reasonable
substitute index.
4.4 Notwithstanding anything to the contrary contained herein, in no
event shall the monthly rent payable in any lease year during the term of
this Lease be less than the amount payable during the preceding lease
year.
ARTICLE V
RENT TAX
5.1 LESSEE shall also pay to LESSOR monthly as additional rent without
demand any rent tax, sales tax or other tax (other than LESSOR's income
tax) which may be levied by any authorized governmental authority against
the BASE MONTHLY RENT or any additional rent payable to LESSOR under this
Lease.
ARTICLE VI
LATE CHARGES
6.1 LESSEE hereby acknowledges that the late payment of rent will cause
LESSOR to incur costs not contemplated by this Lease, the exact amount of
which will be extremely difficult to ascertain. Such costs may include
processing and accounting charges, and late charges which may be imposed on
delayed mortgage payments.
6.2 Accordingly, if any installment of rent or other payment due LESSOR
is not received by LESSOR within ten (10) days of its due date then,
without any requirement for notice to LESSEE, LESSEE shall pay to LESSOR a
late charge equal to ten percent (10%) of such overdue amount. The parties
hereto agree that said late charge is a fair reimbursement to LESSOR of the
costs it will incur as a result of said late payment.
6.3 Acceptance of a late charge by LESSOR shall not be deemed a waiver of
LESSEE's default with respect to such overdue amount, nor shall it prevent
LESSOR from exercising any of the other rights and remedies granted
hereunder.
ARTICLE VII
SERVICES AND OTHER ITEMS INCLUDED IN RENT
7.1 Except as may otherwise be provided hereunder, LESSOR shall provide
the following services and pay for the following expenses which are
included in the BASE MONTHLY RENT (as such rent may, from time to time, be
escalated in accordance with the terms hereof):
A. Real property taxes, special assessments, and building
insurance costs associated with the building and underlying land areas of
which the LEASED PREMISES is a part.
X. XXXXXX'x liability insurance costs with respect to the property
of which the LEASED PREMISES is a part.
C. Cost incurred by LESSOR in managing, advertising, promoting,
and leasing the building of which the LEASED PREMISES is a part.
D. Legal expenses incurred by LESSOR as a result of its ownership
of the LEASED PREMISES, except as otherwise provided in this Lease.
E. Any mortgage payments or other financing costs incurred by
LESSOR.
F. The costs incurred by LESSOR in providing the following
services:
i) Daily janitorial services Monday through Friday, legal
holidays excepted, in and about the LEASED PREMISES. This shall include
all normal cleaning and upkeep services; normal daily removal of trash and
rubbish; the periodic vacuuming of carpeting, dusting of uncluttered
furniture, cleaning and waxing of uncarpeted floors, and washing of both
sides of the building's exterior windows; maintenance of towels, tissue and
other restroom supplies; daily cleaning of restroom floors and fixtures;
and such other work as is customarily performed as janitorial services in
office complexes leasing at similar per square foot annual rents in the
Milwaukee, Wisconsin, metropolitan area.
ii) Electricity for standard building lighting fixtures
and for normal incidental office use. In the event that LESSEE installs
machinery, computers, equipment or other devices requiring electrical
energy in excess of the foregoing, LESSEE shall pay to LESSOR an amount
equal to LESSOR's reasonable estimate of its increased costs occasioned
thereby, or such usage will be sub-metered, and LESSEE shall pay for actual
usage, whichever method is mutually agreeable.
iii) Heat and air conditioning when necessary for normal
comfort (in LESSOR's reasonable judgement) from 7:00 A.M. to 6:00 P.M.
weekdays, legal holidays excepted, and from 8:00 A.M. to 1:00 P.M.
Saturdays.
iv) Hot and cold running water from the regular
building outlets for lavatories, restrooms, and for drinking purposes.
v) Sewer service to the extent required for LESSEE's
use of the LEASED PREMISES for ordinary office purposes.
vi) Passenger elevator service in common with other
tenants to be provided by operator-less automatic elevators. LESSOR
reserves the right to reasonably stipulate which elevators LESSEE may
utilize for passenger service. LESSOR may further stipulate which
elevators may be used for freight purposes and may restrict the hours
during which said elevators may be so used.
vii) Permits which will provide the use of non-reserved
employee parking spaces, not to exceed one permit for every 300 square feet
of "Usable Area" within the LEASED PREMISES. LESSOR shall keep and
maintain the parking lots and all driveways leading thereto in good
condition and repair, and free from any unreasonable accumulation of snow.
viii) Maintenance of the roof, building exterior,
structural system, the plumbing and electrical systems exterior to the
LEASED PREMISES, the HVAC system both interior and exterior to the LEASED
PREMISES, and the common areas of the building of which the LEASED PREMISES
are a part in a good, clean, operable and orderly condition.
ix) Guard service or security in or about the building
which contains the LEASED PREMISES, provided however that the LESSOR may,
at its sole discretion, eliminate either or both of these services at any
time without obligation and with no reduction in the rent payable by LESSEE
hereunder.
x) Conference rooms for the use, from time to time on
a first come, first served advance registration basis, by LESSEE.
Notwithstanding the foregoing, LESSOR reserves the right to charge LESSEE
for any extraordinary cleaning costs resulting from LESSEE's use of such
conference rooms, or for any damages resulting from such use. Further,
LESSOR reserves the right to restrict the LESSEE's use of such rooms,
should said use by LESSEE become excessive in the reasonable opinion of
LESSOR.
7.2 No interruption in, or temporary stoppage of, any of the aforesaid
services caused by repairs, renewals, improvements, alterations, normal
breakdowns, strikes, lockouts, labor controversy, accidents, fire,
inability to obtain fuel or supplies, or other causes beyond the reasonable
control of LESSOR shall be deemed an eviction or disturbance of LESSEE's
use and possession, or render LESSOR liable for damages, by abatement of
rent or otherwise or relieve LESSEE from any obligation set forth herein.
ARTICLE VIII
OPTIONAL SERVICES NOT INCLUDED IN RENT
8.1 The LESSOR intends, but does not guarantee, to provide certain
optional services to LESSEE. The LESSEE shall be charged only for its
actual use of these services, which use shall be at LESSEE's sole option.
These services may include the use of:
A. LESSOR's Rolm telecommunications system.
ARTICLE IX
REPAIRS BY LESSEE
9.1 LESSEE shall, at its sole expense and at all times during the term of
this Lease, keep the LEASED PREMISES in good order, condition, and repair.
9.2 All electric lighting bulbs, tubes, ballasts, and starters shall be
replaced, when necessary, by LESSOR at the expense of LESSEE.
9.3 To the extent that LESSOR, its agents or employees, should do
maintenance for LESSEE which is the responsibility of LESSEE, or should pay
bills incurred by LESSEE, the charges therefore shall be due LESSOR, as
additional rent, within ten (10) days of the date on which LESSOR invoices
in writing for such charges.
ARTICLE X
MODIFICATIONS AND ALTERATIONS TO THE LEASED PREMISES
10.1 No modifications or alterations to the LEASED PREMISES shall be
allowed without the prior written consent of LESSOR. LESSOR reserves the
right to require copies of working drawings and specifications for any
modifications or alterations, which working drawings and specifications
shall be prepared in a professional manner. LESSOR may also require the
posting of a bond by LESSEE in the amount of one and one-half (1-1/2) times
the cost of the modifications or alterations, as estimated by LESSOR,
guaranteeing payment for same.
10.2 LESSEE shall keep the LEASED PREMISES and other property of LESSOR
free from liens at all times, and shall promptly discharge any liens which
are placed against LESSOR's property as a result of LESSEE's actions.
ARTICLE XI
DESTRUCTION OR DAMAGE
11.1 If the building of which the LEASED PREMISES is a part is damaged or
destroyed to the extent that the cost to repair is, in the reasonable
estimate of LESSOR, 25% or less of the then replacement cost of said
building, LESSOR shall promptly repair said building. Should said damage
exceed 25% of the then replacement cost of said building, LESSOR may elect
to either promptly repair same or, by written notice to LESSEE given within
ten (10) days of the date of such damage or destruction, terminate this
Lease. If LESSOR elects to repair said building, this Lease shall remain
in full force and effect only if, in the reasonable opinion of LESSOR, the
repairs can be made within six (6) months following the date of damage or
destruction. If this Lease remains in full force and effect, the rent on
the LEASED PREMISES shall xxxxx to the extent that they are not usable by
LESSEE. Should this Lease be terminated by LESSOR, the rent shall xxxxx
from the date of damage or destruction.
ARTICLE XII
CONDEMNATION
12.1 If all of the LEASED PREMISES, or such portion thereof as will make
the LEASED PREMISES unusable for the purpose herein leased, be condemned by
any legally constituted authority for public use or purpose, then the term
of this Lease shall end on the date of taking, and the rent payable
hereunder shall be prorated to said date. Any compensation payable for
said taking shall be paid to LESSOR except for any portion thereof which
may be specifically awarded to LESSEE for its relocation costs.
ARTICLE XIII
PROPERTY DAMAGE INSURANCE
13.1 LESSOR will obtain fire and extended coverage insurance on the
building and LESSOR's personalty contained therein. LESSEE will obtain
insurance coverage on all of its personalty, trade fixtures, or any
leasehold improvements which it may install on the LEASED PREMISES. LESSOR
and LESSEE hereby waive all rights or subrogation by any insurance company
issuing policies carried by either LESSOR or LESSEE with respect to the
LESSOR's building, fixtures, personal property or leasehold improvements or
to LESSEE's personal property, trade fixtures or leasehold improvements.
13.2 If LESSEE does or permits anything to be done which increases the
cost of LESSOR's insurance on the building of which the LEASED PREMISES is
a part, the LESSEE shall, within ten (10) days of the posting of LESSOR's
written demand therefor, reimburse LESSOR for such increased premiums.
ARTICLE XIV
LIABILITY INSURANCE
14.1 LESSEE shall maintain a policy of public liability insurance in an
amount not less than one million dollars ($1,000,000) per occurrence
throughout the term of this Lease. A certificate indicating the existence
of such liability insurance and naming LESSOR as an additional insured
shall be furnished to LESSOR prior to the commencement date of this Lease.
It shall provide that said insurance policy shall not be canceled during
the term of this Lease without ten (10) days advance written notice to
LESSOR.
14.2 The liability insurance coverage required herein shall insure
performance by LESSEE of the indemnity provisions contained in ARTICLE XV.
The limits of said insurance shall not, however, limit the liability of
LESSEE hereunder.
ARTICLE XV
INDEMNITY
15.1 LESSEE shall indemnify and hold LESSOR harmless from and against all
claims for injuries to persons or damages to property arising out of
LESSEE's use or occupancy of the LEASED PREMISES or areas appurtenant
thereto, except to the extent to which such injuries or damages result from
the negligence of LESSOR or his agents. Said indemnification shall extend
to all costs incurred by LESSOR in defending itself against such claims,
including attorney's fees and court costs.
ARTICLE XVI
EXEMPTION OF LESSOR FROM LIABILITY
16.1 LESSEE hereby agrees that LESSOR shall not be liable for injury to
LESSEE's business or any loss of income therefrom or for damage to or the
theft of the goods, wares, merchandise or other property of LESSEE,
LESSEE's employees, invitees, customers, or any other person in or about
the LEASED PREMISES, nor shall LESSOR be liable for injury to the person of
LESSEE, LESSEE's employees, agents or contractors, whether such damage or
injury is caused by or results from fire, steam, electricity, gas, water or
rain, or from the breakage, leakage, obstruction or other defects of pipes,
sprinklers, wires, appliances, plumbing, air conditioning, lighting
fixtures, windows, or from any other cause, whether the said damage or
injury results from conditions arising upon the LEASED PREMISES or upon
other portions of the building of which the LEASED PREMISES are a
part, or from other sources or places and regardless of whether the
cause of such damage or injury or the means of repairing the same is
inaccessible to LESSEE. Notwithstanding the foregoing, the LESSOR shall be
liable for injuries or damages resulting from the negligence of LESSOR or
its agents. LESSOR shall not be liable for any damages arising from any
act or neglect of any other tenant, if any, of the building in which the
LEASE PREMISES are located.
ARTICLE XVII
USE
17.1 The LEASED PREMISES shall be used and occupied only for business
office purposes and for no other purpose.
ARTICLE XVIII
COMPLIANCE WITH LAWS AND RULES
18.1 LESSOR shall comply, at its sole expense, with all applicable
statutes, ordinances, rules, codes, regulations and orders which govern the
use of the building of which the LEASED PREMISES are a part for ordinary
and usual business office purposes.
18.2 LESSEE shall promptly comply, at its sole expense, with all
applicable statutes, ordinances, rules, codes, regulations and orders which
apply to the LESSEE's use of the LEASED PREMISES, to the extent that said
use does not constitute ordinary and usual business office purposes.
18.3 LESSEE shall promptly comply with all rules and regulations of
LESSOR, the current form of which is attached to this LEASE as Exhibit X.
XXXXXX shall have the right to amend or supplement the Rules and
Regulations from time to time provided the same do not discriminate against
LESSEE and apply to all tenants in general. LESSOR agrees to give LESSEE
at least ten (10) days notice of any changes to the Rules and Regulations.
ARTICLE XIX
SECURITY DEPOSIT
19.1 LESSEE shall deposit with LESSOR upon execution hereof the security
deposit stipulated in ITEM E of ARTICLE I hereto, as security for LESSEE'S
faithful performance of its obligations hereunder. If LESSEE fails to pay
rent or other charges due hereunder, or otherwise defaults with respect to
any provision of this Lease, LESSOR may use, apply or retain all or any
portion of said deposit for the payment of any rent or other charge in
default or for the payment of any other sum to which LESSOR may become
obligated by reason of LESSEE's default, or to compensate LESSOR for any
loss or damage which LESSOR may suffer thereby. IF LESSOR so uses or
applies all or any portion of said deposit, LESSEE shall within ten (10)
days after written demand therefore deposit cash with LESSOR in an amount
sufficient to restore said deposit to the full amount called for herein,
and LESSEE's failure to do so shall be a material breach of this Lease. If
LESSEE performs all of LESSEE's obligations hereunder, said deposit, or so
much thereof as has not been previously applied by LESSOR, shall be
returned, without payment of interest for its use, to LESSEE (or, at
LESSOR's option, to the last assigns, if any, of LESSEE's interest
hereunder) at the expiration of the term hereof, and after LESSEE has
vacated the LEASED PREMISES. The security deposit may be retained by
LESSOR with its general funds.
ARTICLE XX
RIGHTS RESERVED BY LESSOR
20.1 LESSOR reserves the following rights exercisable without notice and
without liability to LESSEE and without effecting an eviction, constructive
or actual, or disturbance of LESSEE's use or possession, or giving rise to
any claim for setoff or abatement of rent:
A. To control the design, installation, and location of any signs
which LESSEE may wish to place on or about the LEASED PREMISES, and to
require that tenant identification signage conform to a standard sign plan
which LESSOR may establish. In no event shall LESSEE utilize any signage
which is visible to the exterior of the building of which the LEASED
PREMISES is a part.
B. To retain at all times and to use in appropriate instances keys
to all doors within and into the LEASED PREMISES. No locks shall be
changed without the prior written consent of LESSOR.
C. To make repairs, alterations, additions, or improvements,
whether structural or otherwise, in and about the LEASED PREMISES, or any
part thereof, and for such purpose to enter upon the LEASED PREMISES, and
during the continuation of any said work, to temporarily close doors,
entryways, and corridors in the LEASED PREMISES and to interrupt or
temporarily suspend services and facilities. Unless warranted by an
emergency situation, such repairs or suspensions shall not unreasonably
interfere with LESSEE's ability to conduct its normal business operations.
X. XXXXXX may require that all persons who enter or leave the West
Allis Center (hereinafter called the "CENTER") identify themselves to
guards by pass, parking permit or otherwise, and LESSOR may take such other
measures as it deems reasonably necessary for the safety and security of
the CENTER. Nothing contained herein shall, however, make LESSOR
responsible in any way for the security of LESSEE, its employees, agents,
or invitees, or any property thereof. LESSOR shall be under no obligation
to maintain perimeter security or guards at the CENTER.
E. To control or prohibit the storage of explosive or inflammable
materials in or about the LEASED PREMISES. LESSEE agrees to promptly cease
and correct any practice which constitutes a fire or safety hazard in the
opinion of LESSOR, LESSOR's property insurance underwriter or its
authorized agents, or any governmental authority responsible for building
and/or fire code enforcement. LESSEE agrees to make the LEASED PREMISES
available for inspection by said parties at all times. LESSEE shall not
bring into the LEASED PREMISES or the building of which it is a part
gasoline, explosives, or other highly flammable or volatile materials.
F. To control the storage or placement of heavy objects on all
structural floors within the LEASED PREMISES. LESSEE agrees not to exceed
the load limitations of any structural floors or elevators within the
LEASED PREMISES.
G. To prohibit any advertising by LESSEE which in LESSOR's
reasonable opinion impairs the reputation or desirability of the CENTER as
an industrial and commercial center. Upon written notice from LESSOR of
such objections, LESSEE shall promptly discontinue such advertising.
LESSEE agrees that it shall not conduct any advertising or publicity
campaign which will so impair the reputation or desirability of the CENTER.
H. To enforce by eviction or other means that the LEASED PREMISES
not be used for lodging or for any immoral or illegal purpose.
I. To tow away or remove, at the expense of the owner, any vehicle
or other object which is improperly parked or stored, or placed in a drive,
fire lane, or no parking zone. All vehicles shall be parked at the sole
risk of the owner, and LESSOR assumes no responsibility for any damage to
or loss of vehicles.
J. To designate, limit, restrict, control and modify any service
in or to the building of which the LEASED PREMISES is a part, and any
common areas relating to such building, provided that LESSOR shall enforce
its rights hereunder uniformly on LESSEE and all other tenants.
K. To enforce by eviction; by the termination of heat, electric,
or water service to the LEASED PREMISES; or other means, its requirement
that LESSEE not commit waste with respect to any utilities which are
furnished by LESSOR. All exterior doors and windows shall be kept closed
during the heating and air conditioning seasons, and water faucets and
fountains should be turned off when not in use.
L. To enter the LEASED PREMISES at reasonable times for the
purpose of inspecting same, showing same to prospective purchasers,
lenders, lessees, insurance inspectors, or governmental authorities.
LESSOR may, during the last 90 days of the term hereof place on or about
the LEASED PREMISES any "For Lease" signs, all without rebate of rent or
liability to LESSEE.
M. To restrict or prohibit LESSEE's ability to conduct, either
voluntarily or involuntarily, any auction upon the LEASED PREMISES. LESSEE
shall obtain LESSOR's advance written consent prior to conducting any
auction upon the LEASED PREMISES.
N. To enforce such other reasonable rules and regulations which
LESSOR or its agent may, from time to time, adopt. Written notice of such
rules and regulations may be given to LESSEE at any time.
ARTICLE XXI
DEFAULT
21.1 Any of the following events shall constitute a default and breach of
this Lease by LESSEE:
A. The vacating or abandonment of the LEASED PREMISES by LESSEE
during the term of this Lease.
B. The failure of LESSEE to make any payment of rent or any other
payment required to be made by LESSEE hereunder, as and when due, where
such failure shall continue for a period of fifteen (15) days after written
notice thereof from LESSOR to LESSEE.
C. The failure by LESSEE to observe or perform any of the
covenants, conditions or provisions of this Lease to be observed or
performed by LESSEE, other than described in Paragraph 21.1B above, where
such failure shall continue for a period of thirty (30) days after written
notice thereof from LESSOR to LESSEE; provided, however, that if the nature
of LESSEE's default cannot be cured by the payment of money and is such
that more than thirty (30) days are reasonably required for its cure, then
LESSEE shall not be deemed to be in default if LESSEE commenced such cure
within said 30-day period and thereafter diligently proceeds to complete
such cure.
D. (i) The making by LESSEE of any general arrangement or
assignment for the benefit of creditors; (ii) LESSEE becomes a "debtor" as
defined in 11 U.S.C. 101 or any successor statute thereto (unless, in the
case of a petition filed against LESSEE, the same is dismissed within sixty
(60) days; (iii) the appointment of a trustee or receiver to take
possession of substantially all of LESSEE's assets located at the LEASED
PREMISES or of LESSEE's interest in this Lease, where possession is not
restored to LESSEE within thirty (30) days; or (iv) the attachment,
execution, or other judicial seizure of substantially all of LESSEE's
assets located at the LEASED PREMISES or of LESSEE's interest in this
Lease, where such seizure is not discharged within thirty (30) days.
Notwithstanding the foregoing, should any provision of the Paragraph 21.1D
be contrary to any applicable law, such provision shall be of no force or
effect.
E. The discovery of LESSOR that any financial statement given to
LESSOR by LESSEE, any assignee of LESSEE, any subtenant of LESSEE, any
successor in interest of LESSEE or any guarantor of LESSEE's obligation
hereunder, and any of them was materially false.
21.2 In the event of any such default or breach by LESSEE, LESSOR may at
any time thereafter, with or without notice or demand and without limiting
LESSOR in the exercise of any right or remedy which LESSOR may have by
reason of such default or breach:
(i) Terminate LESSEE's right to possession of the LEASED PREMISES
by any lawful means, in which case this Lease shall terminate and LESSEE
shall immediately surrender possession of the LEASED PREMISES to LESSOR.
In such event, LESSOR shall be entitled to recover from LESSEE all damages
incurred by LESSOR by reason of LESSEE's default including, but not limited
to, the cost of recovering possession of the LEASED PREMISES; expenses of
reletting, including necessary renovation and alteration of the LEASED
PREMISES, reasonable attorney's fees, and any real estate commission
actually paid; and the worth at the time of award by the court having
jurisdiction thereof of the amount by which the unpaid rent for the balance
of the term after the time of such award exceeds the amount of such rental
loss for the same period that LESSEE proves could be reasonably avoided.
(ii) Maintain LESSEE's right to possession in which case this Lease
shall continue in effect whether or not LESSEE shall have abandoned the
LEASED PREMISES. In such event, LESSOR shall be entitled to enforce all of
LESSOR's rights and remedies under this Lease, including the right to
recover the rent as it becomes due hereunder.
(iii) Pursue any other remedy now or hereafter available to LESSOR
under the laws or judicial decisions of the state wherein the LEASED
PREMISES is located. Unpaid installments of rent and other unpaid monetary
obligations of LESSEE under the terms of this Lease shall bear interest
from the date due at the maximum rate then allowable by law.
21.3 LESSOR shall not be in default unless LESSOR fails to perform
obligations required of LESSOR within a reasonable time, but in no event
later than thirty (30) days after written notice by LESSEE to LESSOR
specifying wherein LESSOR has failed to perform such obligation; provided,
however, that if the nature of LESSOR's obligation is such that more than
thirty (30) days are required for performance then LESSOR shall not be in
default if LESSOR commences performance within such thirty (30) day period
and thereafter diligently prosecutes the same to completion.
ARTICLE XXII
ASSIGNMENT AND SUBLETTING
22.1 LESSEE shall not assign, sublet, transfer or mortgage this lease, nor
shall any assignment occur by operation of law, without the LESSOR's
advance written consent.
22.2 Regardless of LESSOR's consent, no subletting or assignment shall
release LESSEE from its obligation to pay the rent or perform all the
LESSEE's other obligations under this Lease. The acceptance of rent by
LESSOR from any other person shall not be deemed to be a waiver by LESSOR
of any provision hereof. Consent to one assignment or subletting shall not
be deemed consent to any subsequent assignment or subletting. In the event
of default by any assignee of LESSEE or successor of LESSEE, LESSOR may
proceed directly against LESSEE without the necessity of exhausting
remedies against said assignee.
ARTICLE XXIII
ESTOPPEL CERTIFICATE
23.1 LESSEE shall, within ten (10) days of the date of LESSOR's written
request, execute and deliver to LESSOR a statement in writing (i)
certifying that the lease is unmodified and in full force and effect (or,
if modified, stating the nature of such modification and certifying that
this Lease, as so modified, is in full force and effect) and the date to
which the rent and other charges are paid in advance, if any, and (ii)
acknowledging that there are not, to LESSEE's knowledge, any uncured
defaults on the part of LESSOR hereunder, or specifying such defaults if
any are claimed.
ARTICLE XXIV
LESSOR'S LIABILITY
24.1 The term "LESSOR" as used herein shall mean only the owner or owners
at the time in question of the fee title or of LESSEE's interest in a
ground lease of the LEASED PREMISES, and in the event of any transfer of
such title or interest, LESSOR herein named, or any subsequent LESSOR who
later transfers the LEASED PREMISES shall be relieved from and after the
date of such transfer of all liability with respect to "LESSOR's"
obligations thereafter to be performed, providing that any prepaid rent,
expenses, or security deposit in the hands of the then LESSOR, shall be
delivered to the grantee.
ARTICLE XXV
LESSOR'S RIGHT TO CONVEY
25.1 LESSOR reserves the right at all times to sell or convey all or part
of the property of which the LEASED PREMISES is a part. Such conveyance by
LESSOR shall in no way relieve LESSEE of its rights or obligations under
this Lease.
ARTICLE XXVI
SEVERABILITY
26.1 The invalidity of any provision of this Lease as determined by a
court of competent jurisdiction, shall in no way affect the validity of any
other provision hereof.
ARTICLE XXVII
TIME OF ESSENCE
27.1 Time is of the essence with respect to the payment of rent hereunder,
and with respect to all other terms and provisions of this Lease.
ARTICLE XXVIII
RIGHT TO RELOCATE
28.1 The LESSOR hereby retains the right to relocate LESSEE, at LESSOR's
sole expense, to another office suite within the building of which the
LEASED PREMISES is a part, provided that such substitute office suite is,
in the reasonable opinion of LESSOR, equal to or larger in area, of similar
layout, and is of reasonably comparable or better quality, than the
original LEASED PREMISES.
ARTICLE XXIX
INCORPORATION OF PRIOR AGREEMENTS; AMENDMENTS
29.1 This Lease contains all agreements of the parties hereto with respect
to any matter mentioned herein. No prior agreement or understanding
between LESSEE and any employee or agent of LESSOR with respect to any such
matter shall be effective.
ARTICLE XXX
NOTICE
30.1 Any notice required or permitted to be given hereunder shall be in
writing and shall be deemed given on the day immediately following the date
same is deposited in the U.S. mail, postage prepaid and registered or
certified, and addressed as provided under Item F of ARTICLE I hereto (or
to such other address as either party hereto may, from time to time,
stipulate by written notice to the other party).
ARTICLE XXXI
WAIVERS
31.1 No waiver by LESSOR of any provision of this Lease shall be deemed a
waiver of any other provision hereof or of any subsequent breach by LESSEE
of the same or any other provision. LESSOR's consent to, or approval of,
any act shall not be deemed to render unnecessary the obtaining of LESSOR's
consent to or approval of any subsequent act of LESSEE. The acceptance of
rent hereunder by LESSOR shall not be a waiver of any preceding breach by
LESSEE of any provision hereof, other than the failure of LESSEE to pay the
particular rent so accepted.
ARTICLE XXXII
POSSESSION
32.1 Any occupancy of the LEASED PREMISES by LESSEE shall subject LESSEE
to all of the terms and conditions of the Lease, regardless of whether the
term of this Lease has yet commenced.
32.2 If LESSOR shall be unable to give possession of the LEASED PREMISES
on the date of the commencement of the term because of the refusal of a
previous tenant to vacate the LEASED PREMISES, because LESSOR's remodeling
of the LEASED PREMISES has not been sufficiently completed, or for any
other reason, LESSOR shall not be subject to any claims, damages or
liabilities for the failure to give possession
on said date. Under said circumstances, the rent reserved and
covenant to pay same shall not commence until the earlier of either the
date on which possession of the LEASED PREMISES is given to LESSEE, or the
date on which the LEASED PREMISES are available for occupancy by LESSEE,
provided LESSOR has given LESSEE three (3) day's advance written notice of
their availability. Failure to give possession on the date of commencement
of the term shall in no way affect the validity of this Lease or the
obligations of LESSEE hereunder, nor shall the same be construed in any way
to extend the expiration date of the term. Further, the commencement date
of the term of this Lease and LESSEE's obligation to pay rent hereunder
shall not be delayed due to LESSEE's failure to complete any remodeling
work which LESSEE may be responsible for.
32.3 By taking possession of the LEASED PREMISES, the LESSEE accepts it in
its then-existing condition provided, however, that LESSOR shall correct
any reasonable problems which LESSEE gives LESSOR notice of in writing
within seven (7) days following the date possession is taken.
ARTICLE XXXIII
SURRENDER OF PREMISES
33.1 On the last day of the term of this Lease, or on the sooner
termination thereof, LESSEE shall peaceably surrender the LEASED PREMISES
in good condition and repair, ordinary wear and tear excepted, consistent
with LESSEE's duty to make repairs as provided. On or before the last day
of the term of this Lease, or the sooner termination thereof, LESSEE shall,
at its expense, remove all of its trade fixtures, furniture, and equipment
from the LEASED PREMISES, and all property not removed shall be deemed
abandoned. LESSEE shall promptly reimburse LESSOR for any expenses
incurred by LESSOR with respect to removal or storage of abandoned property
and with respect to restoring the LEASED PREMISES to good order, condition
and repair. At the option of LESSOR, exercised by written notice to LESSEE
not later than twenty-one (21) days prior to the last day of the term of
this Lease or sooner termination thereof, any alterations, additions and
fixtures, other than LESSEE's trade fixtures and equipment, which have been
made or installed by LESSEE on the LEASED PREMISES in connection with this
Lease, shall be removed by LESSEE at its expense. If such notice is not
given by LESSOR, said alterations, additions and fixtures shall remain the
LESSOR's property, and shall be surrendered with the LEASED PREMISES as a
part thereof.
33.2 If the LEASED PREMISES are not surrendered at the end of the lease
term or sooner termination thereof, the continued occupancy by LESSEE shall
be a tenancy from month to month, subject to all the terms and provisions
of this Lease excepting (i) rights of first refusal or renewal, if any,
granted hereunder, and (ii) that the monthly rent for each month of
occupancy following the expiration or sooner termination of this Lease
shall be two hundred percent (200%) of the BASE MONTHLY RENT for the last
full month of the term of this Lease. Further, LESSEE shall indemnify
LESSOR against any loss or liability resulting from delay by LESSEE in
surrendering the LEASED PREMISES including, without limitation, claims made
by succeeding tenants founded on such delay and any attorney's fees
resulting therefrom.
ARTICLE XXXIV
CUMULATIVE REMEDIES
34.1 No remedy or election hereunder shall be deemed exclusive but shall,
wherever possible, be cumulative with all other remedies at law or in
equity.
ARTICLE XXXV
BINDING EFFECT
35.1 Subject to any provisions hereof restricting assignment or subletting
by LESSEE, and subject to the provisions of ARTICLE XXIV hereof, this Lease
shall bind the parties hereto, their personal representatives, successors
and assigns.
ARTICLE XXXVI
CHOICE OF LAW
36.1 This Lease shall be governed by the laws of the state of Wisconsin.
ARTICLE XXXVII
SUBORDINATION
37.1 This Lease, at LESSOR's option, shall be subordinate to any ground
lease, mortgage, deed of trust, or any other hypothecation or security now
or hereafter placed upon the real property of which the LEASED PREMISES is
a part and to any and all advances made on the security hereof and to all
renewals, modifications, consolidations, replacements and extensions
thereof. Notwithstanding such subordination, LESSEE's right to quiet
possession of the LEASED PREMISES shall not be disturbed if LESSEE is not
in default and so long as LESSEE shall pay the rent and observe and perform
all of the provisions of this Lease, unless this Lease is otherwise
terminated pursuant to its terms. If any mortgagee, trustee or ground
lessor shall elect to have this Lease prior to the lien of its mortgage,
deed of trust or ground lease, and shall give written notice thereof to
LESSEE, this Lease shall be deemed prior to such mortgage, deed of trust,
or ground lease, whether this Lease is dated prior to subsequent to the
date of said mortgage, deed of trust or ground lease or the date of
recording thereof.
37.2 LESSEE agrees to execute any documents required to effectuate an
attornment, a subordination or to make this Lease prior to the lien of any
mortgage, deed of trust or ground lease, as the case may be. LESSEE's
failure to execute such documents within 10 days after written demand shall
constitute a material default by LESSEE hereunder, or, at LESSOR's option,
LESSOR shall execute such documents on behalf of LESSEE as LESSEE's
attorney-in-fact. LESSEE does hereby make, constitute, and irrevocably
appoint LESSOR as LESSEE's attorney-in-fact and in LESSEE's name, place and
stead, to execute such documents in accordance with this Paragraph 37.2.
ARTICLE XXXVIII
ATTORNEY'S FEES
38.1 If either party to this Lease brings an action to enforce the terms
hereof, the prevailing party in such action shall be entitled to the prompt
reimbursement of its reasonable attorney's fees from the losing party.
ARTICLE XXXIX
QUIET POSSESSION
39.1 Upon LESSEE paying the rent for the LEASED PREMISES and observing and
performing all of the covenants, conditions and provisions on LESSEE's part
to be observed and performed hereunder, LESSEE shall have quiet possession
of the LEASED PREMISES for the entire term hereof subject to all of the
provisions of this LEASE.
ARTICLE XL
AUTHORITY
40.1 If LESSEE is a corporation, trust, or general or limited partnership,
each individual executing this Lease on behalf of such entity represents
and warrants that he or she is duly authorized to execute and deliver this
Lease on behalf of said entity. If LESSEE is a corporation, trust or
partnership, LESSEE shall, concurrent with its execution of this Lease,
deliver to LESSOR evidence of such authority satisfactory to LESSOR.
40.2 The individuals executing this Lease on behalf of LESSOR represent
and warrant to LESSEE that they are fully authorized and legally capable of
executing this Lease on behalf of LESSOR and that such execution is binding
upon all parties holding an ownership interest in the LEASED PREMISES.
ARTICLE XLI
ADDENDUM
41.1 Attached hereto is an addendum or addenda containing Article(s) XLII,
XLIII and XLIV which constitute (s) a part of this Lease.
IN WITNESS WHEREOF, the parties have executed this Lease as of the day and
year first above written.
1126 West Allis Operating Associates,
Limited Partnership (LESSOR) Merge Technologies, Inc. (LESSEE)
By: /s/ Xxxxxxx X. Xxxxxxxxx By: /s/ Xxxxxxx X. Xxxx
Title: Manager of Tenant Title: Chief Financial Officer
Leasing & Tenant Services
ADDENDUM NO. 1
To Lease dated January 30, 1998, by and between 1126 West Allis Operating
Associates, Limited Partnership as LESSOR and Merge Technologies, Inc. as
Lessee.
ARTICLE XLII
BROKERAGE COMMISSION
42.1 LESSOR represents and warrants to LESSEE that it has not incurred any
obligation or liability, contingent or otherwise, for brokerage or finder's
fees or agent's commission or other like payment in connection with this
Lease or the transactions contemplated hereby and LESSOR agrees to
indemnify and hold LESSEE harmless against and in respect of any such
obligation and liability based in any way upon agreements, arrangements or
understandings made or claimed to have been made by LESSOR with any third
person. Similarly, LESSEE represents and warrants to LESSOR that it has
not incurred any obligation or liability, contingent or otherwise, for
brokerage or finder's fees or agent's commission or other like payment in
connection with this Lease or the transactions contemplated hereby and
LESSEE agrees to indemnify and hold LESSOR harmless against and in respect
of any such obligation and liability based in any way upon agreements,
arrangements or understandings made or claimed to have been made by LESSEE
with any third person.
ARTICLE XLIII
LEASE RENTAL CALCULATIONS
43.1 The following represents the method of calculation and amount of
lease rental to be applied to the term of this Lease.
Year One $38,566.00 per Year $3,213.00 per Month
Year Two $39,690.00 per Year $3,307.50 per Month
Year Three $40,824.00 per Year $3,402.00 per Month
Year Four $41,958.00 per Year $3,496.50 per Month
Year Five $43,092.00 per Year $3,591.00 per Month
Year Six $44,226.00 per Year $3,685.50 per Month
Year Seven $26,460.00 per Year $3,780.00 per Month
ARTICLE XLIV
LEASEHOLD IMPROVEMENTS
44.1 LESSOR shall provide LESSEE with the following Leasehold Improvements
at no additional costs to LESSEE beyond the monthly rent as shown in
Article I.D:
A. Steel stud and drywall work to including the following:
1) Insulated partition built through new ceiling grid at
North wall only.
2) Infill of existing south corridor door.
3) Installation of new drywall header at exposed stair
corridor
4) Patching or covering of existing walls including areas
affected by existing wall demolition.
5) All walls taped and finished.
B. Acoustical work of new 2x4 tile to match existing Merge second
floor and standard grid.
C. Floor covering to include the following:
1) New carpeting furnished and installed.
2) Merge anti-static standard.
3) Vinyl base at all new and existing walls.
D. Painting to include the following and to match existing Merge
style:
1) Two coats of latex on all drywall.
2) Enamel painting on hollow metal door frames.
3) Two coats of latex paint on all exposed duct work.
4) Two coats dark green on cement pillars.
E. Remodeling of existing heating, ventilating and air
conditioning and balancing air flow
between existing and new space.
F. Electrical work to include the following:
1) Six duplex outlets plus additional outlets to be
determined at later date.
2) Single pole light switch at each entrance (three).
3) 32 2x4 parabolic lens installed in existing frames.
4) Flourescent lighting to match existing Merge
requirements.
G. Three new mini blinds at new exterior windows.
H. Sandblasting of brick wall along the exterior wall.
I. Two new steel hand rails to match existing Merge style at
existing ramp.
J. Three new exterior windows to match existing Merge style.
EXHIBIT B
RULES AND REGULATIONS
1. The West Allis Center building shall be open from 7:00 A.M. to 10:00
P.M., Monday through Friday. On Xxxxxxxxx, xxx East Lobby of the building
only, shall be open from 7:00 A.M. to 5:00 P.M. The building will be
locked during all other hours, including Sundays and holidays. Entry can
be made with building key provided to all tenants.
Lessor may at all times control entry to and departures from the
building (through a security officer or employee in charge, should lessor
so choose), and (a) persons may enter the building only with permission;
(b) persons entering or departing from the building may be questioned as to
their business in the building and the right is reserved to require the use
of an identification card and the registering of such persons as to the
hour of entry and departure, nature of visit, and other information deemed
necessary for the protection of the building and its lessees; (c) all
entries into and departures from the building will take place through such
one or more entrances as lessor shall from time to time designate.
2. Movement in or out of the building of furniture, office equipment, or
other bulky materials, or movement through the building entrances or lobby
shall be restricted to hours designated by lessor. All such movements,
shall be under supervision of lessor and in the manner agreed between
lessee and lessor by prearrangement before performance. Such
prearrangement initiated by lessee will include determination by lessor and
subject to his decision and control, of the time, method, and routing of
movement, limitations imposed by safety or other concerns which may
prohibit any article, equipment or any other item from being brought into
the building. Lessee is to assume all risk as to damage to articles moved
and injury to persons or public engaged or not engaged in such movement,
including equipment, property, and personnel or lessor it damaged or
injured as a result of acts in connection with carrying out this service
for lessee from time of entering property to completion of work; and lessor
shall not be liable for acts of any person engaged in, or any damage or
loss to any of said property or persons resulting from any act in
connection with such service performed for lessee and lessee hereby agrees
to indemnify and hold harmless lessor from and against any such damage,
injury, or loss, including attorney's fees.
3. Lessee shall be entitled to have its name displayed on the directory
of the building, but the design and type of such display, the location of
the directory, and the allocation of space on the directory shall be
determined by the lessor in its sole discretion. Any additional names
requested by lessee to be displayed on the directory must by approved by
lessor and, if approved, will be provided at the sole expense of lessee.
Lessee shall not, without lessor's prior written consent, install, affix or
use (a) any signs, lettering or advertising media of any kind, blinds,
shades, curtains, draperies or similar items on the exterior of the leased
premises or in the interior of the leased premises in such a manner as
shall be visible from outside the leased premises, or (b) any awnings,
radio or television antennae or any other object or equipment of any nature
whatsoever on the exterior of the leased premises. No symbol, xxxx,
design, or insignia adopted by lessor for use in connection with the
building shall be used by lessee without the prior written consent of
lessor. Lessee shall not refer to the building by any name other than that
designated by lessor from time to time and lessee may use such designated
name solely for the address of its business. All rights to and use of the
exterior walls of the leased premises and roof of the building are reserved
to lessor.
4. No sign, advertisement or notice shall be inscribed, painted or
affixed on any part of the outside (including signs visible from windows)
or inside of the building premises.
5. Lessor reserves the right to exclude or eject from the building all
solicitors, canvassers and peddlers, or any person who, in the reasonable
judgment of lessor's security officer or employee in charge, is under the
influence of liquor or drugs, or any person who shall in any manner do any
illegal act or any act in violation of any of the Rules and Regulations of
the Building.
6. All deliveries and shipments to and from the West Allis Center are to
be made via the loading dock or compactor area located on the east side of
the building.
7. All common areas are to remain smoke free. Smoking by lessees
employees and visitors is allowed outside of the building at the compactor
area. No smoking allowed outside of the main entrances.
8. Food and beverage is to be consumed in the vending area first floor,
not in other common areas of the building such as lobbies or sitting areas,
etc.
9. Lessee and its employees, agents and invitees shall observe and
comply with the driving and parking signs and markers on the property
surrounding the building.
10. Lessees shall not use the name of the building for any purpose other
than that of the business address of the lessee and shall not use any
picture, cut or representation of the building, or any part thereof,
without the lessor's prior written consent.
11. In the interest of satisfactory mail delivery, all inbound mail will
include the lessee's company name, street address and suite number.
12. If lessor, by a notice in writing to lessee, shall object to any
curtain, blind, shade or screen attached to, or hung in, or used in
connection with, any window or door of the leased premises, such use of
such curtain, blind, shade or screen shall be discontinued forthwith by
lessee. No awnings shall be permitted on any part of the leased premises.
13. All entrance doors to each lessee's premises shall be locked when the
premises are not in use. Lessor's building manager and personnel shall
keep a pass key and be allowed admittance to the premises to cover any
emergency or required inspection that may arise. Lessees shall not attach
additional locks or similar devices to any interior or exterior door or
transom of the premises, change existing locks or make or permit to be made
any keys for any door thereof other than those provided by lessor. If more
than two keys for one lock are desired by a lessee, lessor will provide
them upon payment therefor by the lessee. Each lessee, upon the
termination of its tenancy, shall deliver to the lessor all keys of
offices, rooms and toilet rooms which shall have been furnished the lessee
or which the lessee shall have had made, and in the event of loss of any
keys so furnished shall pay the lessor therefor.
Lessee to provide key to janitorial services organization if they
wish to use their services.
14. Lessee assumes full responsibility for protecting its space from
theft, robbery and pilferage which includes keeping doors locked and
windows and other means of entry to the leased premises closed. Lessor
will not be responsible for lost or stolen personal property, equipment,
money, or jewelry from lessee's area or any public rooms regardless of
whether such loss occurs when such area is locked against entry or not.
15. No portion of lessee's area or any other part of the building shall
at any time be used or occupied as sleeping or lodging quarters.
16. No vending machines of any description shall be installed, maintained
or operated in any part of the building without the written consent of
lessor.
17. Lessee shall not use, keep, or permit to be used or kept any foul or
noxious gas or substance in the leased premises, or permit or suffer the
leased premises to be occupied or used in a manner offensive or
objectionable to lessor or other occupants of the building by reasons of
noise, odors, and/or vibrations, or interfere in any way with other tenants
or those having business therein, nor shall any bicycles, animals or birds
(except Seeing Eye Dogs) be brought into or kept in or about the building.
Lessee shall not place or install any antennae or aerials or similar
devices outside of the leased premises.
18. If lessee desires telephone or telegraph connections or alarm
systems, lessor will direct electricians as to where and how the wires are
to be introduced. No boring or cutting for wires or otherwise shall be
made without specific directions from lessor.
19. Lessee shall give prompt notice to lessor of any accidents to or
defects in plumbing, electrical fixtures, or heating apparatus so that such
accidents or defects may be attended to promptly.
20. Lessee will refer all contractors, contractor's representatives and
installation technicians, rendering any service to lessee to lessor for
lessor's supervision approval, and control before performance of any
contractual service. This provision shall apply to all work performed in
the building including installations of telephones, telegraph equipment,
electrical devices and attachments and installations of any nature
affecting floors, walls, woodwork, trim, windows, ceilings, equipment or
any other physical portion of the building.
21. The sashes, sash doors, windows, glass lights, and any lights or
skylights that reflect or admit light into the halls or other places of the
building shall not be covered or obstructed. The toilet rooms, water and
wash closets and other water apparatus shall not be used for any purpose
other than that for which they were constructed, and no foreign substance
of any kind whatsoever shall be thrown therein, and the expense of any
breakage, stoppage or damage, resulting from the violation of this rule
shall be borne by the lessee who, or whose clerk, agents, servants, or
visitors, shall have caused it.
22. Any wallpaper or vinyl fabric materials which lessee may install on
painted walls shall be applied with a stripable adhesive. The use of
nonstripable adhesives will cause damage to the walls when materials are
removed, and repairs made necessary thereby shall be made by lessor at
lessee's expense.
23. Lessor reserves the right to make such other and reasonable rules and
regulations as in its judgment may from time to time be needed for the
safety, care and cleanliness of the building, and for the preservation of
good order therein.
