LEASE
THIS LEASE is made as of this third day of December,
1993, by and between CENTER CITY PLAZA, a Wisconsin partnership,
hereinafter referred to as "Landlord", and INTELLIGRAPHICS, INC.,
a Wisconsin corporation, hereinafter referred to as "Tenant".
I. DEMISE OF LEASED PREMISES
In consideration of the rents hereinafter reserved and
of the covenants and agreements hereinafter contained, Landlord
does hereby demise and lease unto Tenant, and Tenant does hereby
hire and take from Landlord, all those premises (the "Leased
Premises") with the improvements and appurtenances now or
hereafter located therein, in a building commonly designated as
000 X. Xxxxx Xxxxxx, situated in the City of Waukesha, Waukesha
County, Wisconsin and outlined in red on the plan attached hereto
as Exhibit A. This Lease for the Leased Premises is subject to
municipal and zoning ordinances regulating and restricting the
use of the Leased Premises and construction of any improvements
thereon and recorded covenants, easements and restrictions
affecting the Leased Premises.
II. TERM OF LEASE
1. The term of this Lease shall be for a period of
five (5) years, commencing on the date (the "Commencement Date")
that Landlord substantially completes construction of the Project
(as defined in Article IV below) and ending at 11:59 p.m. of the
last day of the fifth (5th) Lease Year (as hereinafter defined),
unless sooner terminated in accordance with this Lease or
extended pursuant to Paragraph 2 below. Landlord shall use all
reasonable efforts to ensure that the Project is completed on or
before April 1, 1994. If Landlord's work on account of
construction of the Project is not completed on or before June
30, 1994, for any reason whatsoever, then Tenant may, at Tenant's
sole option, terminate and cancel this Lease by written notice to
Landlord within thirty (30) days thereafter, in which event
neither party shall have any further rights or obligations under
this Lease. As used herein, "Lease Year" shall mean a period of
twelve (12) full and consecutive calendar months. The initial
Lease Year shall begin on the Commencement Date and end on the
last day of the month preceding the first anniversary of the
Commencement Date; provided, however, if the Commencement Date
does not occur on the first day of a calendar month, then the
initial Lease Year shall begin on the Commencement Date and end
on the last day of the month which contains the first anniversary
thereof. Each succeeding Lease Year shall begin upon the
termination of the preceding Lease Year. The parties shall, at
the request of either, execute and deliver an instrument
confirming the Commencement Date and expiration date when
determined.
2. Tenant shall have the option to extend the term
of this Lease for two (2) additional and consecutive five (5)
year periods, the first option commencing upon the expiration of
the initial term, and the second option commencing on the
expiration of the first option. The first option shall be
exercised only by Tenant giving Landlord written notice thereof
which is received by Landlord not less than twelve (12) months
prior to the expiration of the initial term of this Lease, and
the second option shall be exercised only by Tenant giving
Landlord written notice thereof which is received by Landlord not
less than twelve (12) months prior to the expiration of the first
option; provided, however, Tenant shall be entitled to exercise
the options granted herein and the term of this Lease shall, in
fact, be extended only if this Lease is in full force and effect
and Tenant is not in default of any material term of this Lease
beyond any applicable cure period at the times set forth herein
for the exercise of the option and the commencement of the
extension period. Time shall be of the essence with respect to
Tenant's notice(s) as aforesaid. Tenant's failure to exercise
the first option granted herein in accordance with this Paragraph
shall extinguish the second option. In the event that the term
of this Lease is, in fact, extended pursuant to the foregoing,
then any such extension shall be upon all of the same terms and
provisions contained in this Lease including the adjustment in
the fixed annual rent as set forth in Article III, Paragraph 1
below.
III. RENTAL
1. Commencing on the Commencement Date and
continuing until the end of the first Lease Year, Tenant shall
pay to Landlord a fixed annual rent of $81,439.25 per year,
payable on or before the first day of each month during such
period in equal monthly installments of $6,779.10 each. If the
Commencement Date shall not be on the first day of a month, then
the rent payable for the first partial month shall be prorated on
a daily basis. On the first day of the second Lease Year and on
the first day of each Lease Year thereafter, the fixed rent
payable by Tenant to Landlord as aforesaid shall be adjusted to
an amount equal to the fixed rent payable immediately prior to
the adjustment date in question, increased by seventy-five
percent (75%) of the percentage increase, if any, in the Cost of
Living Index (as hereinafter defined) for the month last
published immediately preceding the date for which the comparison
is being made over the Cost of Living Index published for the
identical month in the preceding year. The fixed annual rent as
adjusted pursuant to the foregoing shall be payable in advance in
equal monthly installments on or before the first day of each
calendar month. "Cost of Living Index" as used herein shall mean
the index presently known as "Consumer Price Index, U.S. Average,
All Items, All Urban Consumers (1982-84=100)" published by the
Bureau of Labor Statistics, United States Department of Labor.
If the computation and publication of the Cost of Living Index is
transferred to another governmental bureau, such bureau's
publication shall be substituted for the presently published
index. If the Cost of Living Index is substantially revised, or
its method of calculation is substantially altered, adjustments
shall be made to such new index by Landlord as may be necessary
to make it comparable to the original index used; provided,
however, that the addition or elimination of particular items or
commodities included in the Cost of Living Index shall not be
deemed a "substantial" revision or a "substantial" alteration of
its method of calculation. In the event the Bureau of Labor
Statistics or other governmental bureau to whom the publication
of the Cost of Living Index is transferred publishes such
adjustment, then such adjustment as published shall be
controlling upon the parties. In the event the Cost of Living
Index is discontinued, Landlord and Tenant shall accept
comparable statistics on the purchasing power of the consumer
dollar as published at the time of such discontinuation by a
responsible financial periodical of recognized authority to be
then chosen by the parties.
2. The rent and all other sums payable by Tenant
hereunder shall be paid to Landlord, without notice, at the
address as hereinafter designated for notices to Landlord or at
such other place as Landlord may from time to time designate. It
is intended hereby that all rent payable under the terms of this
Lease shall be an absolute net return to Landlord for the Lease
term free from any expense, charge, offset, abatement, or
deduction whatsoever except as expressly set forth herein.
IV. CONSTRUCTION OF LEASED PREMISES
1. Landlord shall, at its expense, improve the
Leased Premises by constructing therein an office building (the
"Project") in accordance with the plans and specifications
identified and described on Exhibit B attached hereto (the "Plans
and Specifications"). It is expressly understood and agreed that
notwithstanding Tenant's approval of the Plans and
Specifications, Tenant shall have no liability whatsoever for any
defects, errors or omissions in the documentation furnished by it
to Landlord or as a result of its approval of the Plans and
Specifications prepared by Landlord's architect.
2. Promptly after execution of this Lease, Landlord
shall make application for all required permits from the
appropriate governmental authorities having jurisdiction over the
Leased Premises for the construction of the Project and
thereafter Landlord shall diligently pursue the same and use its
good faith efforts to secure such permits. After Landlord has
obtained necessary permits, Landlord shall promptly commence and
shall diligently proceed with the construction of the Project in
order to complete the same at the earliest possible date
consistent with sound construction practices. No changes shall
be made to the Plans and Specifications or the construction work
to be performed by Landlord without the written approval of
Landlord and Tenant, which approval shall specify without
limitation any additional cost and the effect of such change on
the completion date. Tenant shall advise Landlord in writing of
the name of its designated representative for the purpose of
granting such approvals as are necessary, and Tenant shall have
the right to change such representative from time to time upon
written notice to Landlord.
3. Landlord's work on account of construction of
the Project shall be done in a good and workmanlike manner in
compliance with the Plans and Specifications and all building
codes and regulations. Landlord shall keep Tenant informed on a
regular basis (but no less often than monthly) as to the progress
of construction and Tenant shall at all times have access to the
work and the Plans and Specifications to inspect and review the
same, provided that any inspection or entry by Tenant shall not
unreasonably interfere with or unduly delay Landlord's
construction work, and Tenant waives all claims against Landlord
for personal injury or property damage, and indemnifies and holds
Landlord harmless from all claims, liabilities, damages and
expenses (including reasonable attorneys' fees), resulting from
any such inspection or entry except to the extent due to the
negligence or willful misconduct of Landlord, its agents,
employees or contractors. Landlord covenants that upon
completion of such construction work, the Leased Premises shall
be in compliance with all laws, codes and ordinances. Within
thirty (30) days following delivery of possession of the Leased
Premises to Tenant, Tenant may inspect the same and generate a
punch list of those portions of the work which, in Tenant's
reasonable estimation, are incomplete or not substantially in
conformance with the Plans and Specifications, and Landlord shall
complete or remedy the same within a reasonable time following
the receipt of such list. Further, Landlord shall promptly
correct, repair and/or replace any defective workmanship and/or
material in the Project of which Tenant notifies Landlord within
one (1) year after possession of the Leased Premises is delivered
to Tenant, and Landlord shall correct, repair and/or replace any
latent defects in the Project. Landlord agrees that any
guarantees or warranties received by Landlord from the general
contractor and any subcontractor, supplier or materialmen with
respect to the construction of the Project shall be assigned to
Tenant, and Landlord shall, upon demand from the Tenant, join
with Tenant in enforcing the same.
4. Landlord shall give Tenant written notice upon
completion of construction of the Project accompanied by (i) a
certificate from Landlord's architect certifying that the Leased
Premises have been completed in accordance with the Plans and
Specifications and (ii) an occupancy permit for occupancy of the
Leased Premises. Landlord agrees that during the course of
constructing the Project on the Leased Premises, Tenant may enter
the same for the purpose of installing its fixtures and equipment
to whatever extent it may be practical so to do without
interfering with the completion of the Project and without being
guilty of or liable for trespass, rent, use or occupancy.
V. USE OF LEASED PREMISES
1. The Leased Premises shall be used for offices
and other uses ancillary thereto or for any other lawful purpose.
2. The use of the Leased Premises shall be in full
compliance with, and Tenant shall, at its own cost and expense,
promptly observe and comply with, all present and future laws,
ordinances, rules, regulations and requirements of all public
authorities having jurisdiction over the Leased Premises relating
to or affecting the Leased Premises or its use, and Tenant shall,
at its own cost and expense, make all additions, alterations or
changes to the Leased Premises as may be required by any
governmental authority. Notwithstanding the foregoing, Tenant
shall have the right to contest by appropriate legal proceedings
diligently conducted in good faith, in the name of Tenant, or
Landlord (if legally required), or both (if legally required),
without cost or expense to Landlord, the validity or application
of any such law, ordinance, rule, regulation or requirement and
if compliance therewith may legally be delayed pending the
prosecution of any such proceeding, Tenant may delay such
compliance therewith until the final determination of such
proceeding provided that Tenant shall have furnished Landlord
with a bond of a surety company reasonably satisfactory to
Landlord or other security adequate in the reasonable opinion of
Landlord to assure compliance will occur if Tenant's contest is
unsuccessful. Landlord agrees to execute and deliver any
appropriate papers or other instruments which may be necessary or
proper to permit Tenant so to contest the validity or application
of any such law, ordinance, rule, regulation or requirement and
to fully cooperate with Tenant in such contest.
3. In the event any Hazardous Material (as
hereinafter defined) is brought into or onto the Leased Premises
by anyone other than Landlord, its agents or employees, Tenant
shall handle any such material in compliance with all applicable
federal, state and/or local regulations. For purposes of this
Section, "Hazardous Material" means and includes any hazardous,
toxic or dangerous waste, substance or material defined as such
in (or for purposes of) the Comprehensive Environmental Response,
Compensation, and Liability Act, any so-called "Superfund" or
"Superlien" law, or any federal, state or local statute, law,
ordinance, code, rule, regulation, order or decree regulating,
relating to or imposing liability or standards of conduct
concerning, any hazardous, toxic or dangerous waste, substance or
material, as now or at any time hereafter in effect. Tenant
agrees to indemnify and hold Landlord harmless from any
liability, claim, damage or expense (including reasonable
attorneys' fees) which Landlord may suffer or incur as a result
of the presence or introduction of any Hazardous Material onto
the Premises unless introduced by Landlord, its agents or
employees. Landlord agrees to indemnify and hold Tenant harmless
from any liability, claim, damage or expense (including
reasonable attorneys' fees) which Tenant may suffer or incur as a
result of Landlord's introduction of any Hazardous Material onto
the Leased Premises. The foregoing covenants and
indemnifications shall survive the expiration of the term of this
Lease.
VI. MAINTENANCE AND REPAIRS
Except for repairs and replacements which are the
obligation of Landlord under Article IV, Paragraph 3 and under
Article VII, Paragraph 3, Tenant shall, at all times during the
term of this Lease, and at its own cost and expense, make all
necessary repairs and replacements to keep and maintain the
Leased Premises in good and sanitary order, condition and repair,
ordinary wear and tear excepted, and Tenant shall use all
reasonable precaution to prevent waste, damage or injury thereto.
Tenant shall not defer any repairs or replacements to the Leased
Premises which are Tenant's obligation hereunder in anticipation
of the expiration of the Lease term. Tenant's obligations under
this paragraph shall survive the expiration or earlier
termination of this Lease. In any event, Landlord shall not be
required to make any replacement to the Leased Premises during
the term hereof or any extension, except as provided in Article
IV, Paragraph 3 and Article VII, Paragraph 3, of this Lease.
VII. UTILITIES AND SERVICES
1. Landlord shall be responsible for and shall pay
when due all charges for non-hazardous trash removal, elevator
services, gas, water and sanitary sewer used or consumed in the
Leased Premises. In no event shall Landlord be liable for an
interruption or failure in the supply of any utility to the
Leased Premises.
2. Tenant shall be responsible for and shall pay
when due all charges for electric power (including that used for
air conditioning), telephone service, and janitorial services
provided in the Leased Premises.
3. Landlord shall be responsible for and shall pay
when due all charges for maintenance of equipment for heating,
air conditioning and ventilation systems; charges for snow
plowing, grounds maintenance, and cleaning and maintenance of
common areas.
VIII. ALTERATIONS
1. Tenant shall not make any alterations, additions
or improvements to the Leased Premises without procuring
Landlord's prior written consent and delivering to Landlord the
Plans and Specifications therefor. Notwithstanding the
foregoing, Landlord's consent shall not be required for minor
alterations or for alterations which do not affect the exterior
appearance or structural integrity of the Leased Premises. Any
alterations, additions and improvements installed or placed upon
the Leased Premises by Tenant must be made in a good and
workmanlike manner in accordance with the laws, ordinances and
codes relating thereto. Any such alterations, additions and
improvements may be removed by Tenant at any time provided Tenant
repairs any damage to the Leased Premises resulting from such
removal.
2. Tenant shall not suffer or permit any liens
under any construction lien law or similar law to be filed or
recorded against the Leased Premises or against the interest of
either Landlord or Tenant therein. If any such lien at any time
be filed or recorded, Tenant shall promptly obtain the release of
record of such lien or bond over such lien as required by
statute, at Tenant's own cost and expense, if Tenant disputes the
validity of such lien.
IX. SIGNS
Tenant shall have the right to erect, maintain and
replace such signs at the entrance to the Leased Premises as
Tenant may desire, provided that Tenant submits plans for
architectural approval by the Landlord and that such signs shall
comply with all applicable ordinances and requirements of
governmental authorities having jurisdiction. As used in this
Article, the word "sign" shall be construed to include any
placard, light or other advertising symbol or object,
irrespective of whether the same is temporary or permanent. At
the expiration or earlier termination of this Lease, Tenant
shall, at its own expense, remove all signs installed by Tenant
on the Leased Premises and repair any damage to the Leased
Premises resulting from such removal.
X. PARKING
1. Tenant shall have the right to designate and use
at the Tenant's discretion six (6) parking stalls adjacent to the
pedestrian bridge entrance to the Municipal Parking Ramp.
2. Landlord shall purchase from the City of
Waukesha at Landlord's expense and deliver to Tenant six (6)
monthly parking permits for the Municipal Parking Ramp. Landlord
shall pay the fee for these parking permits for the entire term
of this Lease.
3. Landlord shall make available to Tenant up to
thirty (30) additional monthly parking permits for the Municipal
Parking Ramp. These permits shall be for undesignated stalls in
the ramp and shall be at Tenant's expense. The costs will be the
same as the monthly parking permit fee charged to the general
public as established by the City of Waukesha from time to time.
In no case shall the fee exceed $12.00 per month for the year of
1994.
XI. INSURANCE
1. Tenant shall, during the entire term of this
Lease, keep in full force and effect a policy of commercial
general liability insurance with respect to the Leased Premises
and including contractual liability for the indemnification
obligations of Tenant contained in this Lease in an amount of not
less than $2,000,000.00 combined single limit. The insurance
policy shall name Tenant, Landlord and Landlord's mortgagee, if
any, as insured as their interests appear. Such insurance shall
contain a clause that the insurer will not cancel or change the
insurance without first giving Landlord thirty (30) days prior
written notice. Such insurance may be furnished by Tenant under
any blanket policy carried by it or under a separate policy
therefor. The insurance shall be written by insurance companies
licensed to do business in Wisconsin and reasonably acceptable to
Landlord and a copy of the paid-up policy evidencing such
insurance or a certificate of insurance certifying to the
issuance of such policy shall be delivered to Landlord prior to
commencement of the term of this Lease, and such delivery shall
also be made upon renewal of such policy not less than thirty
(30) days prior to the expiration of such coverage.
2. Tenant shall, at its own cost, during the Lease
term carry insurance against fire, vandalism, malicious mischief
and such other perils as are from time to time included in a
standard extended coverage endorsement insuring any betterments
and improvements made by Tenant to the Leased Premises and all
trade fixtures, furnishings, equipment and all other items of
personal property located at the Leased Premises.
3. Landlord shall not be responsible or liable to
Tenant for any loss or damage to any property, fixtures, or other
improvements on the Leased Premises from any cause whatsoever
including but not limited to the negligent acts or omissions of
Landlord. Landlord shall not be responsible or liable to Tenant
for any personal injury to Tenant or its agents, employees,
contractors, guests, invitees, licensees or customers within or
about the Leased Premises from any cause whatsoever except to the
extent the same results from the negligence or intentional
misconduct of Landlord, its agents or employees.
4. Landlord and Tenant hereby expressly waive any
right of recovery each party may have against the other for a
loss to the Leased Premises or its contents, to the extent of
insurance proceeds actually collected, due to fire or any peril
included in the coverage of any applicable insurance policy
required to be carried hereunder, however caused, including such
losses as may be due to the negligence of Landlord or Tenant or
their respective agents or employees. All policies of insurance
required to be carried hereunder shall contain a provision that
they are not invalidated by the foregoing waiver, but such
waivers shall cease to be effective if the existence thereof
precludes either party from obtaining any such policy.
XII. DESTRUCTION OF IMPROVEMENTS
1. In the event the Leased Premises are damaged or
destroyed in whole or in part by fire or any other cause
whatsoever during the term of this Lease, Landlord shall promptly
repair and restore the Leased Premises which Landlord furnished
upon the commencement of the Lease term to substantially the same
condition that existed just prior to its damage or destruction,
unless this Lease is terminated as hereinafter provided, and the
fixed rent shall be abated in proportion to the portion of the
Leased Premises which is untenantable until the Leased Premises
are repaired by Landlord. The work of rebuilding or repair shall
be initiated by Landlord with all reasonable dispatch, diligently
proceeded with to completion, and Tenant shall repair or replace
its trade fixtures, furnishings and equipment to return them to
substantially the same condition that existed prior to their
damage or destruction. In no event shall Landlord be required to
repair or replace the betterments and improvements installed in
the Leased Premises by Tenant or the trade fixtures, furnishings,
equipment and other personal property located at the Leased
Premises.
2. Notwithstanding anything to the contrary
contained in this Article, in the event that the rebuilding,
restoring or repair of the Leased Premises to tenantable
condition would require more than one hundred eighty (180) days
to complete after commence-ment of the work (subject to extension
for delays caused by acts of God, strikes, lockouts, shortages of
materials and/or workmen or other causes beyond the reasonable
control of Landlord) or in the event that the damage or
destruction to the Leased Premises occurs during the last two
years of the Lease term and would require more than ninety (90)
days to complete after commencement of the work, then either
party may terminate and cancel this Lease by giving written
notice to the other within sixty (60) days after the occur-rence
of such damage or destruction. In the event of any such
termination, all proceeds of insurance maintained by Tenant pur-
suant to Article XI, Paragraph 2 shall be the property of Tenant.
XIII. EMINENT DOMAIN
1. If the entire Leased Premises is taken by any
public authority under power of condemnation or sold to any
public authority in lieu of condemnation, then this Lease shall
terminate as of the date possession is taken by the acquiring
authority and rent shall be apportioned as of that date. If (i)
a portion of the Leased Premises is taken or sold and said taking
or sale results in making the Leased Premises unsuitable for the
use contemplated herein, then Tenant, at its option, may
terminate and cancel this Lease as of the date of taking by
giving Landlord written notice of termination within sixty (60)
days after the date of taking, and the rent shall be apportioned
as of said date. In the event this Lease is not terminated upon
a partial taking of the Leased Premises, Landlord shall, to the
extent possible, promptly commence and pursue diligently until
completion the restoration of the remaining portion of the Leased
Premises which Landlord furnished upon the commencement of the
Lease term to the condition the same were in immediately prior to
such taking and this Lease shall continue in full force and
effect. Landlord shall use such portion of Landlord's proceeds
by reason of such taking necessary to repair and restore the
Leased Premises as herein provided, but in no event shall
Landlord be obligated to expend for such repairs an amount in
excess of the condemnation proceeds available to Landlord for
such rebuilding. During the period in which Landlord is
repairing and restoring the Leased Premises pursuant to this
Paragraph, the rental payable by Tenant shall be apportioned and
prorated in order to xxxxx in proportion to the area of the
Leased Premises which is untenantable.
2. All damages awarded for a total or partial
taking of the Leased Premises shall belong to and be the sole
property of Landlord, and Tenant shall have no claim for loss of
its leasehold estate or the value of the unexpired term hereof;
provided, however, Tenant shall be entitled to pursue any
separate claim or claims as Tenant may have for relocation
expenses, business interruption and other items which are not
included in the award payable to Landlord.
3. In the event that this Lease does not terminate
after any part of the Leased Premises is taken or condemned,
there shall be a reduction in basic rent equal to the percentage
of the square footage area of the Leased Premises which is taken
or condemned.
4. Notwithstanding anything to the contrary
contained herein, if a portion of the Leased Premises is taken or
condemned and this Lease continues in full force and effect, then
the fixed annual rent payable hereunder shall be reduced by a pro
rata reduction based on the reduction in the area of the Leased
Premises which is tenantable.
XIV. ASSIGNMENT AND SUBLETTING
Tenant may assign this Lease or any estate or interest
therein or sublease the Leased Premises or any part thereof and
permit the use and occupancy of the Leased Premises or any part
thereof by any subsidiary or related corporation provided,
however, (i) Tenant shall not be released from any of its
obligations under this Lease upon the occurrence of any of the
foregoing events, (ii) in the event of an assignment, the
assignee shall assume the obligations of Tenant under this Lease
from and after the date of assignment, (iii) Tenant shall give
Landlord prior written notice of the proposed transaction and
Landlord shall be furnished with a copy of any such assignment or
sublease agreement, (iv) any such sublease shall be expressly
subject and subordinate to this Lease, and (v) at the time of the
proposed assignment or sublease Tenant shall not be in default of
the payment of rent due hereunder beyond any cure period.
XV. NOTICES
All notices and demands by either party to the other
shall be given in writing and sent by United States certified
mail, postage prepaid, and addressed:
To Landlord: Center City Plaza
c/o Berg Management Company
000 X. Xxxxxxxx, Xxxxx 00
Xxxxxxxx, XX 00000
To Tenant: Intelligraphics, Inc.
000 X. Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Either party may, upon prior written notice to the
other, specify a different address for the giving of notice.
XVI. ACCESS
Landlord or Landlord's agent shall have the right to
enter the Leased Premises after reasonable notice to Tenant
during normal business hours (except in the event of an emergency
in which event no prior notice is required) for the purpose of
inspecting the same or making repairs which are the obligation of
Landlord hereunder, provided, however, Landlord shall use all
reasonable efforts to avoid interference with the conduct of
Tenant's activities thereon.
XVII. DEFAULTS
1. If (a) Tenant shall fail to pay the rental or
other charges due hereunder within five (5) days after receipt of
written notice thereof by Tenant (provided, however, in the event
that Landlord gives Tenant one such notice within any twelve (12)
month period, Landlord shall not be required to give such notice
thereafter during such twelve month period), or (b) Tenant shall
fail to perform any of the other terms, conditions or covenants
of this Lease to be performed or observed by Tenant for more than
thirty (30) days after receipt by Tenant of written notice from
Landlord specifying in detail the nature of such failure (or such
other reasonable times as necessary if such default is a default
which is susceptible of cure but cannot be cured within thirty
(30) days and Tenant, upon receipt of such notice, promptly and
diligently attempts to effect such cure), (c) Tenant shall be
adjudged bankrupt or insolvent or shall make an assignment for
the benefit of creditors, or (d) a receiver or trustee of
Tenant's property shall be appointed and such receiver or
trustee, as the case may be, shall not be discharged within sixty
(60) days after such appointment, then in any such case, Landlord
may, at its option, upon written notice to Tenant, recover
possession of and re-enter the Leased Premises without accepting
a surrender of the Leased Premises or affecting Tenant's
liability for past rent and other charges due or future rent and
other charges to accrue hereunder. As an alternative, at the
election of Landlord, Landlord shall have the right, upon written
notice to Tenant, to declare this Lease terminated and canceled
and to accept surrender of the Leased Premises (without the need
for any affirmative act or acquiescence by Tenant) without any
further rights or obligations on the part of Landlord or Tenant
(other than Tenant's obligation for rent and other charges due
and owing through the date of termination and the performance of
all of the terms and provisions of this Lease due and owing or
accrued through the date of termination), so that Landlord may
relet the Leased Premises without any right on the part of Tenant
to any credit or payment resulting from any reletting of the
Leased Premises. In the event of any such default, Landlord
shall be entitled to recover from Tenant all other damages
sustained by Landlord on account of the breach of this Lease,
including, but not limited to, the costs incurred by Landlord in
re-entering and recovering possession of the Leased Premises and
the cost of repairs, alterations and brokerage fees connected
with the reletting of the Leased Premises. The provisions herein
shall be in addition and without prejudice to any other rights or
remedies as are available at law or otherwise. Notwithstanding
anything to the contrary contained herein, Landlord shall use
reasonable efforts to mitigate the damages which might arise as a
result of a default by Tenant; and in the event Landlord relets
the Leased Premises, the amount received therefrom prior to
termination of this Lease shall be credited to Tenant after
deducting therefrom Landlord's reasonable expenses.
2. The rights and remedies of Landlord or Tenant
under this Lease shall be cumulative and the exercise of any of
them shall not be exclusive of any other right or remedy provided
by this Lease or allowed by law, and the waiver by Landlord or
Tenant of any breach of any covenant of this Lease shall be
limited to the particular instance and shall not operate or be
deemed to waive any future breach of the same or any other
covenant on the same or any other occasion.
3. No extension of time, forbearance, neglect or
waiver on the part of Landlord or Tenant, as the case may be,
with respect to any one or more of the covenants, terms or
conditions of this Lease, shall be construed as a waiver of any
of the other covenants, terms or conditions of this Lease, or as
an estoppel against Landlord or Tenant, as the case may be.
4. Landlord shall have the right at any time, after
ten (10) days notice to Tenant (or without notice in case of
emergency or in case any fine, penalty, interest or cost may
otherwise be imposed or incurred), to make any payment or perform
any act required of Tenant under any provision of this Lease, and
in exercising such right, to incur necessary and incidental costs
and expenses, including reasonable attorney's fees. Nothing
herein shall imply any obligation on the part of Landlord to make
any payment or perform any act required of Tenant, and the
exercise of the right to so do shall not constitute a release of
any obligation or a waiver of any default. All payments made and
all costs and expenses incurred in connection with any exercise
of such right shall be reimbursed to Landlord by Tenant within
fifteen (15) days after receipt of Landlord's xxxx therefor. In
the event of nonpayment thereof, Landlord shall have the rights
and remedies it would have hereunder or by law in the case of
nonpayment of rent.
5. In the event of any action or proceeding brought
by either party against the other under this Lease, the
prevailing party shall be entitled to recover all costs and
expenses including reasonable attorney's fees.
6. Should Landlord default in the performance of
the covenants required to be performed by Landlord under this
Lease, Tenant may serve upon Landlord a notice specifying the
default and requiring performance by Landlord within a period of
time set forth in such notice, which shall not be less than
thirty (30) days after receipt of said written notice; provided,
however, Tenant shall have the right (but not the obligation) to
remedy such default without notice in the event of emergency. In
the event of such default by Landlord after notice shall have
been given as aforesaid which is not cured by Landlord within
such thirty (30) day period, then Tenant, in addition to any
other right or remedy Tenant may have at law or equity, shall
have the right (but not the obligation) to cure Landlord's
default and Landlord, within fifteen (15) days after receipt of
Tenant's xxxx therefor, shall reimburse Tenant the reasonable
costs incurred by Tenant in curing Landlord's default as
aforesaid. However, if any default shall occur which cannot,
with due diligence, be cured within a period of thirty (30) days
from and after the giving of notice as aforesaid, then Landlord
shall be deemed to be complying with such notice if Landlord
promptly commences to take reasonable steps to cure such default
during such time period and proceeds diligently thereafter to in
fact cure such default.
7. Tenant acknowledges that late payment of rent
(fixed rental or additional rental) could result in Landlord's
mortgagee imposing a late charge on Landlord, and, accordingly,
Tenant agrees that, if rent (fixed rental or additional rental)
due hereunder is not paid by the fifth (5th) day after it is due
(or within five (5) days after receipt of written notice of
default if such late payment is the first such late payment
within the past twelve (12) months), then Tenant shall pay upon
demand, as additional rent, a late charge equal to the late
charge, if any, imposed upon Landlord by Landlord's mortgagee.
The foregoing provision for payment of a late charge shall not be
construed to extend the date for payment of any sums required to
be paid by Tenant hereunder or to relieve Tenant of its
obligation to pay all such sums at the time or times herein
stipulated, and neither the demand for, nor collection by,
Landlord of such late charge shall be construed as a cure for
Tenant's default in the payment of rent.
XVIII. SURRENDER
On the last day of the term of the lease or on the
sooner termination thereof, Tenant shall peaceably and quietly
surrender the Leased Premises in good order, condition and
repair, reasonable wear and tear and damage resulting from fire
or other casualty or the elements excepted. Tenant shall remove
all of its trade fixtures, furnishings, equipment and other
personal property from the Leased Premises and shall be
responsible for repairing, at Tenant's sole cost, any damage to
the Leased Premises caused by such removal; provided, however,
Tenant shall not be required to remove the Leasehold
Improvements. Tenant shall be responsible for any loss resulting
from the delay by Tenant in surrendering the Leased Premises at
the end of the term as set forth herein, including any claim made
by any succeeding tenant founded on such delay.
XIX. HOLDING OVER
In the event Tenant remains in possession of the Leased
Premises after the expiration of this Lease with the consent of
Landlord and without the execution of a new lease, it shall be
deemed to be occupying said premises as a tenant from month-to-
month, subject to all of the conditions, provisions and
obligations of this Lease insofar as the same are applicable to a
month-to-month tenancy. Such month-to-month tenancy may be
terminated by either party effective as of the end of any
calendar month by twenty-eight (28) days prior written notice to
the other party. If Tenant remains in possession of the Leased
Premises without the consent and/or acquiescence of Landlord or
remains in possession of the Leased Premises following the
termination of a hold over month-to-month tenancy as created
pursuant to the provisions of the preceding sentence, then Tenant
shall pay to Landlord twice the fixed rent apportioned on a daily
basis for the time Tenant remains in such possession.
XX. WARRANTY OF TITLE: QUIET ENJOYMENT
Landlord hereby represents and warrants that it is the
sole owner of the entire Leased Premises in fee simple and that
it has the right and authority to enter into this Lease without
the joinder or approval of any other person. Landlord covenants
and agrees that so long as Tenant pays the rent reserved by this
Lease and performs and observes all of the covenants and
provisions hereof, Tenant shall peaceably and quietly enjoy the
full possession and use of the Leased Premises, without any
hindrance or molestation from Landlord or any other party.
XXI. ESTOPPEL CERTIFICATES AND SUBORDINATION
1. Each party agrees that it shall, without charge,
at any time and from time to time hereafter, within ten (10) days
after written request of the other, execute in recordable form
and deliver to the other a written statement certifying: (a) as
to whether this Lease has been supplemented or amended, and if
so, the substance and manner of such supplement or amendment; (b)
as to the validity and force and effect of this Lease; (c) as to
the existence of any default thereunder; (d) as to the existence
of any offsets, counterclaims or defenses thereto on the part of
such other party; (e) as to the commencement and expiration dates
of the term of this Lease; (f) as to the date to which rent has
been paid; and (g) as to any other matters as may reasonably be
so requested. Any such certificate may be relied upon by the
party requesting it and any other person, firm or corporation to
whom the same may be exhibited or delivered, and the contents of
such certificate shall be binding on the party executing the
same.
2. This Lease shall, at the option of the holder or
holders of any mortgage or mortgages placed upon the Leased
Premises, be subject and subordinate to the lien of any such
mortgage or mortgages, and Tenant covenants and agrees to execute
and deliver within fifteen (15) days after receipt of a request
therefor such further instruments subordinating this Lease, in
accordance with the foregoing, to the lien of any such mortgage
or mortgages as shall be reasonably requested by Landlord or any
mortgagee or proposed mortgagee; provided, however, no such
subordination shall be effective unless the holder of such
mortgage or mortgages shall have agreed in writing (i) to
recognize the rights of Tenant under this Lease (including
Tenant's right of first refusal under Article XXIII below) in the
event of foreclosure so long as Tenant is not in default
hereunder beyond any applicable grace period, and (ii) in the
event of casualty or condemnation under Articles XII and XIII
above which does not result in the termination of this Lease, the
insurance proceeds and condemnation award, as the case may be,
shall be made available for the repair or restoration of the
Leased Premises pursuant to the terms of this Lease. In the
event that the Leased Premises or any portion thereof is subject
to one or more mortgages at the time of execution of this Lease,
Landlord shall, within forty-five (45) days after the execution
of this Lease, furnish to Tenant a non-disturbance agreement from
the holder(s) of such mortgage(s) containing the agreements in
the immediately preceding sentence. In the event Landlord fails
to deliver to Tenant such non-disturbance within such time, or
within thirty (30) days of notice by Tenant of such failure,
Tenant shall have the right, at its option, to terminate this
Lease and in such event Tenant shall have no liability to
Landlord whatsoever.
XXII. SHORT FORM LEASE
The parties will at any time, at the request of either
one, promptly execute duplicate originals of an instrument in
recordable form, which will constitute a short form of lease,
setting forth a description of the Leased Premises, the term of
this Lease and any other portions thereof, excepting the rental
provisions, as either party may request.
XXIII. MISCELLANEOUS
1. This Lease and the exhibits, if any, attached
hereto and forming a part hereof, set forth all the covenants,
promises, agreements, conditions, and understandings between
Landlord and Tenant concerning the Leased Premises and there are
no others, either oral or written, between them except as herein
set forth. No alteration, amendment, change or addition to this
Lease shall be binding upon Landlord or Tenant unless reduced to
writing and signed by each party.
2. The captions and article numbers appearing in
this Lease are inserted only as a matter of convenience and in no
way define, limit, construe or describe the scope or intent of
such sections or articles of this Lease nor in any way affect
this Lease.
3. Whenever herein the singular number is used, the
same shall include the plural, and the masculine gender shall
include the feminine and neuter genders, and vice versa, as the
context shall require. The terms "Landlord" and "Tenant"
whenever used herein, shall mean only the owner at the time of
Landlord's or Tenant's interest herein, and upon any sale or
assignment of the interest of either Landlord or Tenant herein,
their respective successors in interest and/or assigns shall,
during the term of their ownership of their respective estates
herein, be deemed to be Landlord to Tenant, as the case may be.
4. This Lease may be executed in several
counterparts, each of which shall be an original, but all of
which shall constitute one and the same instrument.
5. This Lease shall be governed by, and construed
in accordance with, the laws of the State of Wisconsin. If any
provision of this Lease or the application thereof to any person
or circumstances shall, to any extent be invalid or
unenforceable, the remainder of this Lease shall not be affected
thereby and each provision of the Lease shall be valid and
enforceable to the fullest extent permitted by the law.
6. Any amount due from Tenant to Landlord hereunder
which is not paid within five (5) days after the date due shall
bear interest at the rate of two percent (2%) per annum in excess
of the then announced prime rate of interest charged by First
Wisconsin National Bank of Milwaukee from the date due until
paid, unless otherwise specifically provided herein, but the
payment of such interest shall not excuse or cure any default by
Tenant under this Lease.
7. The covenant to pay rent is hereby declared to
be an independent covenant on the part of Tenant to be kept and
performed.
8. No payment by Tenant or receipt by Landlord of a
lesser amount than the monthly rent herein stipulated shall be
deemed to be other than on account of the earliest stipulated
rent, nor shall any endorsement or statement on any check or any
letter accompanying any check or payment as rent be deemed an
accord and satisfaction, and Landlord shall accept such check or
payment without prejudice to Landlord's right to recover the
balance of such rent or pursue any other remedy in this Lease
provided.
9. In the event of any sale or other transfer of
the Leased Premises by Landlord, the named Landlord shall be
entirely relieved of all obligations hereunder from and after the
date of the transfer; provided, however, that the transferee
shall assume the same by written agreement and a copy of the same
is delivered to Tenant within ten (10) days thereafter.
10. If Landlord shall fail to perform any covenant
or condition of this Lease upon Landlord's part to be performed
and, as a consequence of any such default, Tenant shall recover a
money judgement against Landlord, such judgement shall be
satisfied only out of the proceeds of sale received upon
execution of such judgement and levied thereon against the right,
title and interest of Landlord in the Leased Premises and out of
rents or other income from such property receivable by Landlord,
and Landlord shall not be liable for any deficiency.
11. Tenant agrees to execute any modification of
this Lease which may be reasonably required by Landlord's lenders
as a condition to making a mortgage loan on the Leased Premises,
provided that no such modification shall alter the rent or term
provided herein nor materially reduce the economic value hereof
or benefits hereunder to Tenant. Tenant agrees to complete and
properly return any such lease modification that may be
reasonably required in connection with any such mortgage loan on
the Leased Premises within ten (10) days after receipt thereof.
12. Except as expressly otherwise provided, all of
the terms, covenants and conditions hereof shall be binding upon
and inure to the benefit of the heirs, personal representatives,
successors in interest and assigns of the parties hereto.
SIGNED AND SEALED as of the date first written above.
LANDLORD:
CENTER CITY PLAZA
By: _/s/ A. Xxxxxxx Xxxxxxxx
A. Xxxxxxx Xxxxxxxx,
Its Managing Partner
TENANT:
INTELLIGRAPHICS, INC.
By: _/s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx,
Its President
Attest: _/s/ A. William Huelsman_______
A. Xxxxxxx Xxxxxxxx,
Its Secretary
AMENDMENT TO LEASES
This Amendment to Leases is made as this 11th day of
August, 1995, by and between Center City Plaza, a Wisconsin
partnership, hereinafter referred to as "Landlord", and
Intelligraphics, Inc., a Wisconsin corporation, hereinafter
referred to as "Tenant."
Landlord and Tenant agree as follows:
Notwithstanding any contrary provisions in any existing
lease by and between Landlord and Tenant, the rental rate
for any extended term of any lease, which extended term
begins after April 30, 1999 shall be the going and
prevailing rent for property of like character which is in
existence at April 30, 1999. The parties shall agree on the
rental to be paid for any extended term by April 30, 1998.
Landlord: CENTER CITY PLAZA
__/s/A. Xxxxxxx Xxxxxxxx
A. Xxxxxxx Xxxxxxxx
Its Managing Partner
Tenant: INTELLIGRAPHICS, INC.
/s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
Its President
