Exhibit 10.20(a)
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XXX XXXX XXXXX
XXXXXXXXX, XXXXXXXXX
********************
L E A S E
00000 Xxxx Xxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
********************
Between
M&I Data Services, a Division of Xxxxxxxx & Xxxxxx Corporation
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(Tenant)
And
TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA
(Landlord)
L E A S X
Xxx Xxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx
DEFINITIONS................................................................ iv
SCHEDULE................................................................... 1
1. LEASING AGREEMMENT............................................... 1
2. RENT............................................................. 1
A. Kinds....................................................... 1
B. Payment of Operating Cost Share Rent and Tax Share Rent..... 2
C. Payment of Index Rent....................................... 3
D. Definitions................................................. 3
E. Rules of Interpretation and Computation of Base Rent and
Rent Adjustments.......................................... 4
3. PREPARATION AND CONDITION OF PREMISES, POSSESSION
AND SURRENDER OF PREMISES...................................... 5
4. PROJECT SERVICES................................................. 6
A. Heat........................................................ 6
B. Air Conditioning............................................ 7
C. Extra Hours................................................. 7
D. Elevators................................................... 7
E. Electricity................................................. 7
F. Water....................................................... 7
G. Janitorial Service.......................................... 7
H. Window Washing.............................................. 7
I. Interruption of Service..................................... 7
5. ALTERATIONS AND REPAIRS.......................................... 8
6. USES OF PREMISES................................................. 9
7. BUILDING RULES AND GOVERNMENTAL REGULATIONS...................... 9
8. CLAIMS; INSURANCE; LIABILITY..................................... 9
9. FIRE AND OTHER CASUALTY.......................................... 10
10. RIGHTS RESERVED TO THE LANDLORD.................................. 11
A. Name........................................................ 11
B. Signs....................................................... 11
C. Windows..................................................... 11
D. Service Contracts........................................... 11
E. Keys........................................................ 11
F. Access for Repairs, etc..................................... 11
G. Occupancy................................................... 11
H. Rights to Conduct Businesses................................ 11
I. Heavy Equipment............................................. 11
J. Show Premises............................................... 11
K. Close Project............................................... 11
L. Substitution of Space....................................... 12
M. Use of Lock Box by Landlord................................. 12
N. Repairs and Alterations..................................... 12
0. Other Rights................................................ 12
11. DEFAULT AND LANDLORD'S REMEDIES.................................. 12
A. Defaults.................................................... 12
B. Landlord's Remedies......................................... 13
12. HOLDOVER......................................................... 15
13. SUBORDINATION TO MORTGAGES AND GROUND LEASES..................... 15
A. Subordination............................................... 15
B. Termination of Ground Lease or Foreclosure of Mortgage...... 15
C. Security Deposit............................................ 15
D. Notice and Right to Cure.................................... 15
14. ASSIGNMENT AND SUBLETTING BY TENANT.............................. 16
15. SALE BY LANDLORD................................................. 17
16. ESTOPPEL CERTIFICATE............................................. 17
17. SECURITY DEPOSIT................................................. 17
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18. EXCUSE OF LANDLORD'S INABILITY TO PERFORM; LANDLORD'S DEFAULT..... 17
19. PERSONAL PROPERTY................................................. 18
20. NOTICES........................................................... 18
21. QUIET POSSESSION.................................................. 18
22. REAL ESTATE BROKER................................................ 18
23. CONDEMNATION...................................................... 19
24. SPRINKLERS........................................................ 19
25. MISCELLANEOUS..................................................... 19
A. Covenants Binding on Successors.............................. 19
B. Date Payments are Due........................................ 19
C. Meaning of "Re-entry" and "Landlord"......................... 19
D. Time is of the Essence....................................... 19
E. No Option.................................................... 19
F. Severability................................................. 19
G. Governing Laws............................................... 19
H. Lease Modification........................................... 19
I. No Oral Modification......................................... 19
J. Litigation and Arbitration Costs............................. 19
K. Captions..................................................... 20
L. Remedies and Rights May Be Exercised by Landlord in its Own
Name; Authority to Execute This Lease....................... 20
M. Payments to Affiliates....................................... 20
N. Entire Agreement............................................. 20
O. Landlord's Title............................................. 20
P. Light and Air Rights......................................... 20
Q. Rights Reserved or Granted................................... 20
R. Meanings of Words............................................ 20
S. Rent not Based on Income..................................... 20
T. Non-Exclusivity.............................................. 20
26. UNRELATED BUSINESS INCOME......................................... 20
27. EXCULPATORY PROVISIONS............................................ 21
28. AUTHORITY......................................................... 21
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APPENDIX A - PLAN OF THE PREMISES
APPENDIX B - CLEANING SCHEDULE
APPENDIX C - RULES AND REGULATIONS
APPENDIX D - TENANT IMPROVEMENT WORK AGREEMENT
1. TENANT IMPROVEMENT WORK
2. ADDITIONAL WORK
3. SUBSTANTIAL COMPLETION
4. ACCESS BY TENANT PRIOR TO COMMENCEMENT
OF TERM
5. ACCEPTANCE OF PREMISES
6. MISCELLANEOUS
EXHIBIT A TO TENANT IMPROVEMENT WORK AGREEMENT - BUILDING
STANDARDS
APPENDIX E - MORTGAGES CURRENTLY AFFECTING THE PROJECT
APPENDIX F - POWER AND HEATLOAD REQUIREMENTS
APPENDIX G - SPACE SPECIFICATIONS
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DEFINITIONS
Section in Which
Term Term is Defined
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1. Additional Rent 2A(5)
2. Base Rent 2A(I)
3. Building Preamble
4. business hours 4A
5. Commencement Date 1
6. Comparison Year 2D(3)
7. Consumer Price Index 2D(4)
8. Corporate Base Rate 2E(3)
9. CPI Report 2C(2)
10. Fiscal Year 2D(5)
11. Force Majeure 18
12. Ground Lease 2D(2)
13. Holidays 4A
14. Index Rent 2A(4)
15. Landlord Preamble
16. mortgage 13B(3)
17. mortgagee 13B(3)
18. new premises 10(L)
19. Operating Cost Share Rent 2A(2)
20. Operating Costs 2D(2)
21. Operating Cost Report 2B(2)
22. Premises Preamble
23. Project Preamble
24. re-enter. re-entry 27C
25. Rent Tax 2D(1)
26. Rental Agents 2A
27. Required Improvements 9B
28. Restoration Delays 9C
29. Schedule Preamble
30. Taxes 2D(1)
31. Tax Report 2B(3)
32. Tax Share Rent 2A(3)
33. Tenant Preamble
34. Tenant's Proportionate Share 3(D)(6)
35. Term 1
36. Termination Date 1
37. Work 5A
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LEASE
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XXX XXXX XXXXX
XXXXXXXXX, XXXXXXXXX
THIS INDENTURE is made as of the 1st day of July, 1995 between Teachers
Insurance and Annuity Association of America, a New York corporation
(hereinafter referred to as "Landlord") and the tenant named in Item 1 of the
Schedule (hereinafter referred to as "Tenant"). The term "Project" when used
herein refers to the land (the "Land") and the building (the "Building")
currently known as "Two Park Plaza" (including, without limitation, any and all
easements adjacent or appurtenant thereto and other areas used in common
with the development commonly known as Park Place) situated at 00000 Xxxx Xxxx
Xxxxx, Xxxxxxxxx. Xxxxxxxxx 00000, together with the vehicular drives, the above
and below ground parking facilities, and all other structures and improvements
now or hereafter located on the Land. "Premises" when used herein refers to that
part of the Project leased to Tenant.
The following Schedule (the "Schedule") is an integral part of this Lease.
SCHEDULE
1. Name of Tenant: M&I Data Services, a Division of Xxxxxxxx & Xxxxxx
Corporation
2. Floor(s) or room(s) of Premises: Floors Six (6), Seven (7) and Eight (8)
3. Net Rentable Square Feet: ............................48,864 square feet
Tenant agrees that upon the Commencement Date, the net rentable square feet
in the Premises will be certified by Landlord's architect, whose
determination will be made in accordance with BOMA standards and whose
determination as to the net rentable square feet so calculated shall be
final. Tenant agrees to execute and deliver an amendment to this Lease
reflecting the amount of the net rentable square feet as so certified by
Landlord's architect and any resulting changes to Tenant's Proportionate
Share, the Base Rent or such other similar terms as are necessary.
4. Tenant's use of Premises: General office purposes consistent with a first-
class office building.
5. Base Rent (per year): ........$513,072.00 ($10.50 per rentable square foot)
6. Monthly Installments of Base Rent: ..............................$42,756.00
7. Tenant's Proportionate Share: .....................................24.7287%
8. Rent Abatement: N/A
9. Security Deposit: ....................................................$ -0-
10. Tenant's address for notices before possession date: M&I Data Services, a
Division of Xxxxxxxx & Ilsley Corporation, 0000 Xxxx Xxxxx Xxxx Road, P.O.
Box 23528, Xxxxx Deer, Wisconsin 53223-0528, Attn: Xxx Xxxxxxxxxxx
11. Tenant's Real Estate Broker used for this Lease:
Xx. Xxxxxx X. Xxxxxxxx
The Xxxxxxxxx Company, Inc.
000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, XX 00000
12. Tenant Improvements, if any: Pursuant to Tenant Improvement Work Agreement
attached hereto as Appendix D.
13. Date Tenant Plans are due from Tenant including Special Work, if any: ....
See Appendix D.
14. Commencement Date: .............The Commencement Date of this Lease shall
be the day following the date this Lease is executed by both Landlord and
Tenant. Notwithstanding the foregoing, Tenant's obligation to pay the Base Rent
referred to in Paragraph 5 above, shall commence March 1, 1996. From the
Commencement Date through February 28, 1996, Tenant shall pay as Rent for the
Premises each month, an amount equal to the product obtained by multiplying (a)
two cents ($0.02), times (b) the number of net rentable square feet in the
Premises reasonably expected to be occupied by Tenant for the upcoming calendar
month, times (c) the number of days in the upcoming calendar month. Tenant's
estimate of the number of net rentable square feet in the Premises to be
occupied by Tenant during the upcoming calendar month shall be provided to
Landlord for Landlord's review and approval not less than ten (10) days prior to
the first day of said upcoming calendar month. For the period commencing on the
Commencement Date and ending February 28, 1996, the Rent paid by Tenant for any
calendar month shall be adjusted at the end of such calendar month to reflect
the actual number of net rentable square feet in the Premises actually occupied
by Tenant during said calendar month.
15. Term/Termination Date: ...........The Termination Date of this Lease shall
be February 28, 2000, unless extended or earlier terminated as herein
provided.
16. Reasonable Consent or Approval: ............Except as otherwise expressly
set forth herein, wherever the consent or approval of either Landlord or
Tenant is required by the provisions of this Lease, such party shall not
unreasonably withhold or delay such consent or approval.
1. LEASING AGREEMENT. Landlord leases to Tenant, and Tenant leases from
Landlord, for the term (the "Term") set forth on the Schedule, commencing on the
commencement date (the "Commencement Date") set forth on the Schedule and ending
on the termination date (the "Termination Date") set forth on the Schedule,
unless sooner terminated or extended as herein provided, the Premises described
on the Schedule and outlined on the plan attached hereto and made a part hereof
as page 1 of Appendix A. The Premises constitute a portion of the Building
located on the Land, which is legally described on page 2 of Appendix A. As
provisions of said lease, Landlord and Tenant covenant and agree as follows:
2. RENT.
A. Kinds. Tenant agrees to pay Rent, beginning as of the Commencement
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Date, to Landlord's rental agents, Xxxxxxxx Xxxx MW, Inc. ("Rental Agents") at
00000 Xxxx Xxxx Xxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxxx 00000
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or to such other person or at such other place as Landlord from time to time
designates in a written notice to Tenant, in coin or currency which at the time
of payment is legal tender for the payment of public and private debts in the
United States of America, the aggregate of the following, all of which are Rent
reserved under this Lease:
(1) Base Rent to be paid in monthly installments in advance on or
---------
before the first day of each month of the Term of this Lease in the amount
set forth on the Schedule, provided that the first monthly installment of
Base Rent will be paid by the Tenant concurrently with the execution of
this Lease.
(2) Operating Cost Share Rent in an amount equal to the Tenant's
-------------------------
Proportionate Share of the Operating Costs for the applicable fiscal year
of the lease. Operating Cost Share Rent shall be paid monthly in advance in
an estimated amount, as adjusted by Landlord not more often than annually.
Definitions of Operating Costs, Tenant's Proportionate Share and the method
for billing and payment of Operating Cost Share Rent are set forth in
Sections 2B and 2D.
(3) Tax Share Rent in an amount equal to the Tenant's Proportionate
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Share of Taxes for the Taxes for the applicable fiscal year of the lease.
Tax Share Rent shall be paid monthly in advance in an estimated amount, as
adjusted by Landlord not more often than annually. Definitions of Taxes,
Tenant's Proportionate Share and the method for billing and payment of Tax
Share Rent are set forth in Sections 2B and 2D.
(4) [Reserved]
(5) Additional Rent consisting of all of the sums, liabilities,
---------------
obligations and other amounts (excepting Base Rent, Operating Cost Share
Rent, and Tax Share Rent) which Tenant is required to pay or discharge
pursuant to this Lease (including, without limitation, any amounts which
this Lease provides shall be Tenant's cost or expense), together with
interest for late payment thereon, all as hereafter provided.
B. Payment of Operating Cost Share Rent and Tax Share Rent.
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(1) Payment of Estimated Operating Cost Share Rent and Tax Share
------------------------------------------------------------
Rent. Landlord shall estimate the Operating Costs and Taxes of the Project
----
from time to time each year. Such estimates may be revised by Landlord
whenever it obtains information relevant to making such estimates more
accurate but not more often than annually. Such estimates will generally
(but need not) be issued after the beginning of a fiscal year and revised
upon the determination of the final real estate tax assessment or final
real estate tax rate for the Project.
Within ten (10) days after notice from Landlord setting forth an
estimate of Operating Costs for a particular fiscal year, Tenant shall pay
Landlord an amount equal to one-twelfth (1/12th) of Tenant's Proportionate
Share of such estimated costs multiplied by the number of months that have
elapsed in such fiscal year to the date of such payment, minus payments of
estimated Operating Cost Share Rent previously paid for said period.
Thereafter on the first day of each month, Tenant shall pay monthly until a
new estimate of Operating Costs is applicable, one-twelfth (1/12th) of
Tenant's Proportionate Share of the estimated Operating Costs.
Within ten (10) days after notice from Landlord setting forth an
estimate of Taxes for a particular fiscal year, Tenant shall pay Landlord
an amount equal to one-twelfth (1/12th) of Tenant's Proportionate Share of
such estimated costs multiplied by the number of months that have elapsed
in such fiscal year to the date of such payment, minus payments of
estimated Tax Share Rent previously paid for said period. Thereafter on the
first day of each month, Tenant shall pay monthly until a new estimate of
Taxes is applicable, one-twelfth (1/12th) of Tenant's Proportionate Share
of the estimated Taxes.
(2) Correction of Operating Cost Share Rent. As soon as reasonably
---------------------------------------
possible after the end of each fiscal year, Landlord shall deliver to
Tenant a report (the "Operating Cost Report") setting forth (a) the actual
Operating Costs for the preceding fiscal year, (b) the amount of Operating
Cost Share Rent due to Landlord for such preceding fiscal year, and (c) the
amount of Operating Expense Share Rent paid by the Tenant in and allocable
to such fiscal year. On or before twenty (20) days after receipt of such
report, Tenant shall pay to Landlord the amount of Operating Cost Share
Rent due for the preceding fiscal year (or a portion thereof if this Lease
was not in effect for the entire fiscal year) minus any payments made by
Tenant for such fiscal year. If Tenant's estimated payments of Operating
Cost Share Rent exceed the amount due Landlord for the fiscal year in
question, Landlord shall either refund any such amount to Tenant or apply
any such amount as a credit against Tenant's other obligations under
Section 2(A)(2) of this Lease.
(3) Correction of Tax Share Rent. At any time during any fiscal year,
----------------------------
when such information becomes available, Landlord shall deliver to Tenant
a report (the "Tax Report") setting forth (a) the actual Taxes for the
preceding fiscal year, (b) the amount of Tax Share Rent due to Landlord for
such preceding fiscal year, and (c) the amount of Tax Share Rent paid by
the Tenant in and allocable to such fiscal year. On or before twenty (20)
days after receipt of such report, Tenant shall pay to Landlord the amount
of Tax Share Rent due for the preceding fiscal year (or a portion thereof
if this Lease was not in effect for the entire fiscal year) minus any
payments made for such fiscal year. If Tenant's estimated payments of Tax
Share Rent exceed the amount due Landlord
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for the fiscal year in question, Landlord shall either refund any such
amount to Tenant or apply any such amount as a credit against Tenant's
other obligations under Section 2(A)(3) of this Lease.
C. [Reserved]
D. Definitions:
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(1) Taxes. "Taxes" shall mean any and all federal, state and local
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governmental taxes, assessments and charges of any kind or nature, whether
general, special, ordinary or extraordinary, which Landlord shall pay or
become obligated to pay because of or in connection with the ownership,
leasing, renting, management, control or operation of the Project or of the
personal property, fixtures, machinery, equipment, systems and apparatus
located therein or used in connection therewith or with regard to
Landlord's proportionate share of common area expenses relating to the
development commonly known as Park Place. Taxes shall include, without
limitation, real estate taxes, personal property taxes, sewer rents, water
rents, assessments (special or otherwise), transit taxes, and ad valorem
taxes. Taxes shall also include all fees, costs and expenses (including,
without limitation, legal fees and court costs) paid by Landlord in
connection with protesting or contesting, or seeking a refund or reduction
of, any of the aforesaid Taxes, regardless of whether the Landlord is
ultimately successful. Tenant shall not be required to pay costs in excess
of any amounts recovered in connection with the protest or contest or
seeking of a refund or reduction unless Tenant gives prior consent to such
protest or contest or seeking of a refund or reduction. If at any time
during the term hereof, a tax or excise on rents or income or other tax
however described (herein called "Rent Tax") is levied or assessed by the
United States or the State of Wisconsin, or any political subdivision
thereof, on account of the rents hereunder or the interest of Landlord
under this Lease, such Rent Tax shall constitute and be included in Taxes,
provided, however, that in no event shall Tenant be obligated (a) to pay
for any year any greater amount as a result of such Rent Tax than would
have been payable by Tenant had the rentals paid to Landlord under all
Project leases (being the rentals upon which such taxes are imposed) been
the sole taxable income of Landlord for the year in question or (b) to pay
or to reimburse Landlord for any tax of any kind assessed against Landlord
on account of any such Rent Tax having been reimbursed to Landlord by
Tenant or any third party.
For the purposes of determining Taxes for any given fiscal year, the
amount to be included for such fiscal year (a) from special taxes or
assessments payable in installments, shall be the amount of the
installments (and any interest) due and payable during such fiscal year,
(b) from all other Taxes, shall be the amount accrued, assessed or
otherwise imposed for such fiscal year without regard to when any such
Taxes are payable, and (c) from any adjustment (including, without
limitation, a refund) to any Taxes by the taxing authority, when such
adjustment has resulted in a corresponding adjustment payment by or to
Landlord, shall constitute an adjustment to Taxes for the fiscal year
during which such adjustment is made or received by Landlord, as the case
may be. Tenant shall not be responsible for any installments of special
assessments levied prior to the Commencement Date.
Taxes shall not include any net income (except Rent Tax as hereinabove
provided), capital, stock, succession, transfer, franchise, gift, estate or
inheritance taxes, unless the same shall be imposed in lieu of all or any
portion of Taxes.
(2) Operating Costs. "Operating Costs" shall mean any expenses, costs
---------------
and disbursements (other than Taxes) of every kind and nature, paid or
incurred by Landlord in connection with the ownership, leasing, management,
maintenance, operation and repair of all or any part of the Project
(adjusted for vacancy as hereafter provided), in connection with the
personal property, fixtures, machinery, equipment, systems and apparatus
located in the Project or used in connection therewith and in connection
with Landlord's proportionate share of common area expenses, costs and
disbursements relating to the development commonly known as Park Place.
Operating Costs shall not include (a) costs of alterations of tenant
premises; (b) costs of capital improvements, except for any capital
improvements which are intended to reduce Operating Costs, any capital
improvements which Landlord is required to make pursuant to, or which are
necessary to keep the Project in compliance with, all applicable
governmental rules and regulations applicable from time to time to the
Project and any costs for capital improvements included in common area
-3-
charges for Park Place (the foregoing capital improvements that are
included within Operating Costs are collectively referred to herein as the
"Included Capital Items"); (c) depreciation (except on any Included Capital
Items); (d) interest and principal payments on mortgages or any rental
payments on any ground or other underlying leases subject to which Landlord
holds its interest in the Project (hereinafter, referred to individually as
a "Ground Lease" and collectively as "Ground Leases"), and other debt
costs, if any; (e) real estate brokers' leasing commissions or
compensations; (f) any cost or expenditure (or portion thereof) for which
Landlord is reimbursed, whether by insurance proceeds or otherwise
(Operating Cost Share Rent, Tax Share Rent and provided for in
any tenant leases are not reimbursements); and (g) the cost of any kind of
service furnished to any other office tenant of the Project which Landlord
does not make available to Tenant hereunder; and (h) costs incurred by
Landlord for alterations, renovations, improvements, decoration or
painting, architectural, legal and/or engineering services, if any, for
other tenants of the Building, other than those costs incurred in
connection with the common areas; (i) costs of repairs or other work
occasioned by fire or other casualty or by the exercise of eminent domain,
for which Landlord is reimbursed by insurance or a condemnation award; (j)
leasing or sales commissions, attorneys' fees and other professional fees,
costs and disbursements and other expenses incurred in connection with
negotiations or disputes with other tenants, other occupants, or
prospective tenants or occupants of the Building; (k) costs incurred due to
the violation by Landlord of the terms and conditions of any lease with any
other tenant of the Building; (l) penalties for failure to pay taxes when
due, unless such failure is caused by Tenant; (2) overhead and profit paid
to subsidiaries or affiliates of Landlord for services to the Building to
the extent that the costs thereof exceed the competitive costs of such
services in the Milwaukee, Wisconsin metropolitan area; (m) any
compensation paid to clerks, attendants or other persons in commercial
concessions operated by Landlord; (n) advertising and promotional
expenditures; (o) any fines or penalties incurred due to violations by
Landlord of any governmental rule or authority, unless such fines or
penalties or violations were caused by or incurred because of Tenant; (p)
expenses relating to refinancing or sale of the Building; (q) costs of
repairing any items covered by warranty or guaranty, if Landlord elects to
pursue such warranty or guaranty and if Landlord is actually reimbursed
under the warranty or guaranty; (r) expenses in connection with services or
benefits provided to other tenants or occupants of the Building, which
services or benefits Tenant is not entitled to receive under this Lease;
(s) cost of utility or other services, if any, separately metered and
provided to vacant space or premises occupied by other tenants (except for
any utility or services provided to common areas); and (t) any management
or administrative fee which in the aggregate exceeds the competitive market
rates for management or administrative fees for similar buildings in the
Milwaukee, Wisconsin metropolitan area. The annual cost to be included as
an Operating Cost for any Included Capital Item shall be an amount equal to
the cost of said Included Capital Item (including any costs associated with
financing the construction or installation or purchase of the improvement
if the improvement results in a reduction in the level of Operating Costs
over the life of the improvement) divided by the number of years in the
depreciable life of the Included Capital Item as reasonably determined by
Landlord. If Landlord reasonably determines that a repair, alteration or
replacement of any structural portion of the Building, the parking lot
serving the Building, or any of the major systems serving the Building (any
such repair, alteration or replacement being herein referred to as a
"Repair") is a capital Repair, then the annual cost to be included as an
Operating Cost for any such capital Repair shall be the cost of said Repair
(including any costs associated with financing the construction or
installation of the Repair or purchases made with respect to the Repair if
the Repair results in a reduction in the level of Operating Costs over the
life of the Repair) divided by the number of years in the depreciable life
of the Repair as reasonably determined by Landlord.
If during all or any portion of any fiscal year the Project is not
fully rented and occupied by tenants, Landlord may elect to make an
appropriate adjustment of Operating Costs for such fiscal year, employing
sound accounting and management principles, to determine the Operating
Costs that would have been paid or incurred by Landlord had the Project
been fully rented and occupied for the entire fiscal year, and the amount
so determined shall be deemed to have been the Operating Costs for such
fiscal year. If Landlord is not furnishing any particular work or service
(the cost of which if performed by Landlord would constitute an Operating
Cost) to a tenant who has undertaken to perform such work or service in
lieu of the performance thereof by Landlord for all or any portion of a
fiscal year, Operating Costs for such fiscal year shall be deemed to be
increased by an amount equal to the additional Operating Costs which
reasonably would have been incurred during such fiscal year by Landlord if
it had, at its own expense, furnished such work or service to such tenant.
Notwithstanding anything contained herein to the contrary, the provisions
of this paragraph with respect to adjustment of Operating Costs for
vacancy, or as a result of the performance by tenants of certain services,
shall apply only to Operating Costs which are variable and which increase
as occupancy in the Project increases and shall not apply to any Operating
Costs which do not vary with the amount of occupancy in the Project.
Further, in making its adjustment of Operating Costs for vacancy or as a
result of the performance by tenants of certain services, Landlord shall
not charge more than those Operating Costs actually incurred by Landlord.
(3) Comparison Year. "Comparison Year" means each fiscal year of the
---------------
Lease through and including the years in which the term of this Lease
(including any extensions or renewals thereof) commences and ends. The
first and last Comparison Year may contain less than twelve (12) calendar
months.
(4) Consumer Price Index. "Consumer Price Index" means the Consumer
--------------------
Price Index for All Urban Consumers, United States City Average, All Items
(1982-84 = 100) of the United States Bureau of Labor Statistics. The
Consumer Price Index for any given Comparison Year shall be the December
monthly index for that year, except that for the last Comparison Year, the
Consumer Price Index shall be the monthly index for the last calendar month
(whether whole or partial) of the term of this Lease. If the manner in
which such Consumer Price Index as determined by the Bureau of Labor
Statistics shall be revised, an adjustment shall be made in such revised
index which would produce results equivalent, as nearly as possible, to
those which would have been obtained if the Consumer Price Index had not
been so revised. If the Consumer Price Index shall become unavailable to
the public because publication is discontinued, or otherwise, Landlord will
substitute therefor a comparable index based upon changes in the cost of
living or purchasing power of the consumer dollar published by any other
governmental agency or, if no such index shall be available, then a
comparable index published by a major bank or other financial institution
or by a university or a recognized financial publication.
(5) Fiscal Year. The term "fiscal year" shall mean any 12 month
-----------
period (including, without limitation, the calendar year) which Landlord
may from time to time select as the fiscal year of the Project, provided
that the first fiscal year and the last fiscal year of the Term may contain
less than twelve (12) months.
(6) Tenant's Proportionate Share. "Tenant's Proportionate Share"
----------------------------
shall mean the percentage set forth as Item 7 on the Schedule.
(7) Park Place. "Park Place" shall mean that larger real estate
----------
development of which the Project is a part.
E. Rules of Interpretation and Computation of Base Rent and Rent
-------------------------------------------------------------
Adjustments:
-----------
(1) If this Lease commences on other than the first day of a month,
the Base Rent, Operating Cost Share Rent, and Tax Share Rent for the month
in which this Lease so begins shall be prorated based upon the number of
days of the Term falling within such month. If the Term of this Lease
commences on any day other than the first day of the designated fiscal
year, or if the Term of this Lease ends on any day other than the last day
of the designated fiscal year, any Operating Cost Share Rent, and Tax Share
Rent due to Landlord with respect to such fiscal year shall be prorated
based on the number of days in the Term falling within such fiscal year.
(2) All Rent shall be paid to Landlord without deduction or offset at
the office of the Rental Agent in the Project, or to such other person or
place as Landlord may from time to time designate in writing. The Tenant's
covenants to pay Rent shall be independent of every other covenant set
forth in this Lease.
(3) Any sum due from Tenant to Landlord not paid when due shall bear
interest from the date due until the date paid at the annual rate equal to
the lesser of: (i) the highest lawful rate, or (ii) a rate of interest
equal to the sum of three percent (3%) plus the "Corporate Base Rate". The
phrase "Corporate Base Rate" means that rate of interest most recently
announced by the Firstar Bank
-4-
Milwaukee, N.A. or its successor (collectively, the "First") as the
corporate base rate, changing automatically and simultaneously with each
announced change by the First in the Corporate Base Rate, such change to be
effective as of and on the date announced by the First as the effective
date for the change in the Corporate Base Rate. A certificate made by an
officer of the First stating the Corporate Base Rate in effect on a certain
day, or Corporate Base Rates in effect during a certain period, shall, for
purposes of this Lease, be conclusive evidence of the First's Corporate
Base Rate or Rates on said day or during such period. In the event that the
First ceases to use the term Corporate Base Rate in setting a base rate of
interest for commercial loans, then the Corporate Base Rate herein shall be
determined by reference to the rate used by the First as a base rate of
interest for commercial loans as the same shall be designated by the First
to the Landlord. The payment of such interest shall not excuse or cure any
default of Tenant under this Lease.
(4) If Tenant is in default on any of its obligations under this
Lease, Tenant shall not be entitled to any refund of any sum which may
otherwise be due it by application of any provision of this Lease until any
and all of Tenant's defaults under this Lease are cured by Tenant.
(5) If changes are made to this Lease or to the Project changing the
number of rentable square feet contained in the Premises or in the
Project, Tenant's Proportionate Share shall be appropriately adjusted and
the computations of Rent shall be appropriately adjusted so as to take
into account the different Tenant's Proportionate Share figures applicable
during each portion of the applicable fiscal year. Tenant's Proportionate
Share is based on a total of 197,600 rentable square feet in the Building
and total rentable square feet in the Premises initially demised hereunder
as set forth in Item 3 in the Schedule.
(6) Landlord shall maintain books and records in accordance with
sound accounting and management practices, reflecting the Operating Costs
and Taxes. In the event of any dispute as to any Operating Cost Share Rent
or Tax Share Rent, Tenant shall have the right to inspect Landlord's
accounting records relative to Operating Costs and Taxes at Landlord's
accounting office upon reasonable prior notice during normal business hours
during the sixty (60) days following the furnishing by Landlord to Tenant
of either of the Operating Cost Report and the Tax Report. Unless either
party shall take written exception to any item in any such report within
said sixty (60) day period, such report shall be considered as final and
accepted by Tenant and Landlord. Any payment due to the Landlord as shown
on the Operating Cost Report or the Tax Report, whether or not written
exception is taken thereto, shall be made by the Tenant within twenty (20)
days after the Landlord shall have submitted the Operating Cost Report or
the Tax Report (as the case may be) without prejudice to any such written
exception. If Tenant makes such timely written exception, a certification
as to the proper amount of Operating Cost Share Rent and Tax Share Rent
shall be made by an independent certified public accountant mutually
acceptable to Landlord and Tenant, which shall be final and conclusive.
Tenant agrees to pay the cost of such certification unless the
certification shows that Landlord's calculation as to the amount of
Operating Cost Share Rent and Tax Share Rent exceeded by more than five
percent (5%) the amount of Operating Cost Share Rent and Tax Share Rent
shown by the certification. Landlord shall pay for the cost of such
certification if the certification shows that Landlord's calculation as to
the amount of Operating Cost Share Rent and Tax Share Rent exceeded by more
than five percent (5%) the amount of Operating Cost Share Rent and Tax
Share Rent shown by the certification.
(7) In the event of the termination of this Lease by expiration of
the stated Term or for any other cause or reason whatsoever prior to the
determination of Operating Cost Share Rent, Tax Share Rent, or Additional
Rent, Tenant's agreement to pay any such sum shall survive termination of
the Lease and Tenant shall pay any such amount due to Landlord within
fifteen (15) days after being billed therefor. Tenant's obligation to pay
Base Rent shall also survive the expiration or termination of this Lease.
In the event of the termination of this Lease by expiration of the stated
Term or for any other cause or reason whatsoever, except the default by
Tenant under any of the terms or provisions of this Lease, prior to the
determination of Operating Cost Share Rent, or Tax Share Rent as
hereinabove set forth, Landlord's agreement to refund any excess in the
amount of the estimated payments made by Tenant on account of Operating
Cost Share Rent, or Tax Share Rent over the actual amount thereof accruing
or payable up to the time of the termination or expiration shall survive
termination of the Lease and the Landlord shall pay the amount due to
Tenant within fifteen (15) days of Landlord's determination of such amount.
(8) No calculation, determination or payment of Operating Cost Share
Rent or Tax Share Rent or by virtue of the operation of the Rent adjustment
provisions under this Section 2 shall result in the payment by Tenant in
any fiscal year during the Term of less than the Base Rent shown on the
Schedule.
(9) If any Operating Cost though paid in one (1) fiscal year, relates
to more than one (1) fiscal year, at the option of the Landlord, such
Operating Cost may be proportionately allocated among such related fiscal
years. If any Operating Cost relates to more than one parcel of property,
at the option of the Landlord, such Operating Cost may be allocated among
the parcels of property to which it relates.
(10) All payments made with respect to Operating Cost Share Rent, or
Tax Share Rent (including any monthly payments made on the basis of
Landlord's estimates thereof) may be commingled and need not be segregated
by the Landlord and may be held and utilized by the Landlord without
payment to the Tenant of interest or any sums for the use of any of said
amounts.
3. PREPARATION AND CONDITION OF PREMISES, POSSESSION AND SURRENDER OF
PREMISES.
A. Except to the extent expressly indicated in the Tenant Improvements
item on the Schedule and except as otherwise expressly set forth in Appendix D,
Landlord is leasing the Premises to Tenant "as is", without any representations
or warranties of any kind (including, without limitation, any express or implied
warranties of merchantability, fitness or habitability) and without any
obligation on the part of the Landlord to alter, remodel, improve, repair,
decorate or clean the Premises or any part thereof. If so indicated in the
Tenant Improvements item on the Schedule, Landlord shall cause the Premises to
be completed in accordance with the plans, specifications, and agreements and on
the terms, conditions and provisions
-5-
as provided in the Tenant Improvement Work Agreement (Appendix D) and Exhibit A
thereto (Building Standards) both of which are attached hereto and made a part
of this Lease.
B. Except as may be otherwise set forth under Section 5.F., during the
term of this Lease, Tenant shall maintain the Premises in as good condition as
when Tenant took possession, or as when completed after possession in the event
that Tenant takes possession prior to the Completion Date (loss or damage caused
by action of the elements, Acts of God and the public enemy, ordinary wear and
fire and other casualty insured against by Landlord excepted) failing which
Landlord may but need not restore the Premises to such good condition and Tenant
shall pay the cost thereof. At the termination of this Lease or at the
termination of Tenant's right to possession without termination of this Lease,
Tenant shall, subject to Sections 3C and 3D below, return the Premises to
Landlord broom clean and in good condition as described in the immediately
preceding sentence or Landlord may, but need not, restore the Premises to such
good condition and Tenant shall pay the cost thereof.
C. Unless otherwise provided by written agreement, signed by Landlord,
all Work (hereinafter defined), partitions, hardware, light fixtures and other
fixtures (except trade fixtures and movable furniture and equipment belonging to
Tenant) in or upon the Premises, whether placed there by Landlord or Tenant,
shall be surrendered with the Premises at the termination of this Lease, by
lapse of time or otherwise, or at the termination of Tenant's right to
possession without termination of this Lease, and shall become Landlord's
property without compensation to Tenant; provided, however, that if prior to any
such termination of the Lease, or of the right to possession, or within ten (10)
days thereafter, Landlord so directs by written notice, Tenant shall promptly
remove any Work, partitions, hardware, light fixtures or other fixtures placed
in or upon the Premises by Tenant and designated in such notice and repair any
damage to the Premises caused by such removal, failing which Landlord may remove
the same and repair the Premises and Tenant shall pay the cost thereof to
Landlord upon demand.
D. Tenant shall also remove its furniture, movable equipment, trade
fixtures and all other items of personal property including all telephone and
data wiring if required by Landlord, from the Premises prior to the end of the
Term or any extension thereof, or within thirty (30) days after the early
termination of this Lease for any reason, or of the termination of Tenant's
right of possession; and if Tenant does not remove such property, at Landlord's
election: (i) Tenant shall be conclusively presumed to have conveyed the same to
Landlord under this Lease as a xxxx of sale without further payment or credit by
Landlord to Tenant, (ii) Tenant shall be conclusively presumed to have forever
abandoned such property, and without accepting title thereto, Landlord may, at
Tenant's expense, remove, store, destroy, discard or otherwise dispose of all or
any part thereof in any manner that Landlord shall choose without incurring
liability to Tenant or to any other person, and Tenant shall pay to Landlord,
upon demand, any and all reasonable expenses incurred in taking any of such
actions. In no event shall Landlord ever become or accept or be charged with the
duties of a bailee (either voluntary or involuntary) of any personal property;
and the failure of Tenant to remove all such property from the Premises and the
Project shall forever bar Tenant from bringing any action or asserting any
liability against Landlord with respect to any such property which Tenant fails
to remove. During the first thirty (30) days after the early termination of this
Lease for any reason, or of the termination of Tenant's right of possession,
Landlord may, at its option, remove and store any personal property not removed
from the Premises by the Tenant, at the risk cost and expense of Tenant, and
Landlord shall in no event be responsible for the value, preservation and safe
keeping thereof. Tenant shall pay to Landlord, upon demand, any and all
reasonable expenses incurred by Landlord in connection with such removal and
storage. Notwithstanding anything to the contrary contained in this Section 3,
Tenant shall not be required to remove any part of the Work done pursuant to
Appendix D or its security system or any other improvements or alterations
consented to by Landlord; provided, however, Tenant shall be required to remove
its telephone and data wiring if required by Landlord and to repair any and all
damage caused by such removal.
E. All obligations of the Tenant hereunder shall survive the expiration
of the Term or sooner termination of this Lease.
F. Except as may be otherwise set forth on Appendix D, Tenant's taking
possession of the Premises or any portion thereof shall be conclusive evidence
that the Premises or such portion were then in good order, repair and
satisfactory condition. Landlord may authorize Tenant to take possession of all
or any part of the Premises prior to the Commencement Date. If Tenant does take
possession pursuant to such authorization, all of the covenants and conditions
of this Lease shall apply to and shall control such pre-term occupancy. Rent for
such pre-term occupancy shall be paid upon occupancy and on the first day of
each calendar month thereafter at the rate set forth in Section 2A hereof. If
the Premises are occupied for a fractional month, such Rent shall be prorated on
a per diem basis.
4. PROJECT SERVICES.
So long as Tenant is not in default hereunder, Landlord agrees to furnish
services to the Tenant without charge except for Operating Cost Share Rent, or
as otherwise specifically provided herein, as follows:
A. Heat. Landlord shall furnish heat to provide a temperature and
----
humidity condition required, in Landlord's reasonable judgment, for comfortable
occupancy of the Premises under normal business operations in the absence of
machines or equipment which may affect the temperature or humidity otherwise
maintained in the Premises. Such heat shall be provided daily during business
hours (Monday through Friday am 8:00 a.m. to 6:00 p.m., and Saturday from 8.00
a.m. to 1:00 p.m., Holidays (hereinafter defined) excepted). Tenant agrees to
keep and cause to be kept closed all windows in the Premises and at all times to
cooperate fully with the Landlord in the operation of the heating system and to
abide by all reasonable regulations and requirements which Landlord may
prescribe to permit the proper functioning and protection of the heating system.
Landlord reserves the right to stop the heating system when necessary by reason
of accident or emergency or for repairs, alterations, replacements or
improvements, which in the judgment of the Landlord are desirable or necessary,
until said repairs, alterations, replacements or improvements shall have been
completed. For purposes of this Lease "Holidays" shall mean New Year's Day,
Memorial Day, Independence Day, Labor Day, Thanksgiving Day, Christmas Day and
any other national or state holidays observed by the majority of office tenants
in the Milwaukee metropolitan area, now or hereafter established, that may be
-6-
designated in writing by Landlord to Tenant from time to time. Landlord agrees
to make any repairs to the heating system promptly and with due diligence.
B. Air Conditioning. Landlord shall furnish air conditioning to provide a
----------------
temperature and humidity condition required, in Landlord's reasonable judgment,
for comfortable occupancy of the Premises under normal business operations in
the absence of machines or equipment which may affect the temperature or
humidity otherwise maintained in the Premises. Such air conditioning shall be
provided daily during business hours (Monday through Friday from 8:00 a.m. to
6:00 p.m., and Saturday from 8:00 a.m. to 1:00 p.m., Holidays excepted). Tenant
agrees to keep and cause to be kept closed all windows in the Premises and at
all times to cooperate fully with the Landlord in the operation of said system
and to abide by all reasonable regulations and requirements which Landlord may
prescribe to permit the proper functioning and protection of the air
conditioning system. Landlord reserves the right to stop the air conditioning
system when necessary by reason of accident or emergency or for repairs,
alterations, regular maintenance replacements or improvements, which in the
judgment of the Landlord are desirable or necessary, until said repairs,
alterations, regular maintenance replacements or improvements shall have been
completed. Landlord agrees to make any repairs to the air conditioning system
promptly and with due diligence.
Whenever heavy concentration of personnel, motors, machines or equipment,
including telephone equipment, used in the Premises adversely affects the
temperature or humidity otherwise maintained by the air conditioning system,
Landlord reserves the right to install supplementary air conditioning units in
the Premises and the cost thereof, including all of the costs relating to the
installation and the cost of operation and maintenance thereof, shall be
Additional Rent hereunder and shall be paid by Tenant to Landlord upon demand.
C. Extra Hours. Landlord shall also furnish heat and air conditioning
-----------
after business hours, on the condition that Tenant gives Landlord not less than
twenty-four (24) hours' prior notice of Tenant's needs for such additional
heating or air conditioning, and provided that Tenant pays to Landlord its then
current charges for such additional heating or air conditioning. Notwithstanding
the foregoing condition that Tenant give Landlord not less than twenty-four (24)
hours' prior notice of Tenant's needs for additional heating or air
conditioning, Landlord shall use reasonable efforts to provide Tenant additional
heating or air conditioning after business hours as Tenant requires. Such
charges will be prorated by Landlord between requesting user-tenants if more
than one tenant requests such additional heating or air conditioning at the same
time and the proration shall be based upon the area of the Project leased to
such tenants and their respective periods of use. Landlord's current charges for
after hours service (which may be modified by Landlord from time to time) are:
Hourly Hourly
Charge/Cooling Charge/Heating Time Period Day(s)
-------------- -------------- ----------- ------
$60 $15/zone 6:00 p.m. - 7:00 p.m. Monday-Friday
$40 $10/zone 7:00 p.m. - 8:00 a.m. Monday-Friday
$40 $10/zone N/A Saturday, Sunday &
Holidays
These charges may increase or decrease and Tenant agrees to pay whatever
Landlord's actual costs for additional heating and air conditioning are at the
time of Tenant's request for additional services plus an allowance for
maintenance, which maintenance allowance shall not exceed 10% times Landlord's
charges for after hours service. The term "maintenance" shall include, without
limitation, the following: lubrication of supply and return dampers; greasing of
supply and return dampers; greasing of supply and return fans; periodic review
of pneumatic controls; replacement of filters; additional chemical usage in the
cooling water treatment and cooling tower; additional maintenance on the chiller
and condenser water pumps; and the scheduling and coordination of after hours
HVAC between the property management and engineering staffs.
D. Elevators. Landlord shall provide passenger elevator service in common
---------
with the Landlord and the other tenants, daily, during business hours, Sundays
and Holidays excepted. One of the passenger elevators can be adapted for freight
use upon 48 hours prior notice to Landlord by the Tenant with such use to be
confined to the hours of 8:30 a.m. to 11:30 a.m. and 1:00 p.m. to 4:30 p.m. on
Monday through Friday. Further, upon prior request to the Landlord by the
Tenant, freight elevator service may be available on Saturdays. Freight elevator
service shall at all times be subject to scheduling by the Landlord. Landlord
shall provide limited passenger elevator service at all times (except in the
case of an emergency) during which normal passenger elevator service is not
furnished. Not less than one (1) elevator shall be available to Tenant at all
times.
E. Electricity. All the electricity used in the Premises shall be
-----------
supplied by Wisconsin Electric Power Company or any other electricity company
serving the Project, and such electricity shall be supplied as an Operating
Cost. Landlord shall not in any way be liable to Tenant for any loss or damage
or expense Tenant may sustain or incur if either the amount or quality of
electric service is changed or is no longer available or suitable for Tenant's
requirements. If such service shall be discontinued, such discontinuance shall
not in any way affect this Lease except as otherwise set forth in Section 5.I.
below. Tenant covenants and agrees that at all times its use of electric current
shall never exceed the capacity of the existing feeders to the Building or the
risers or the wiring installed thereon when reviewed in conjunction with the
electrical usage of the other tenants in the Project. Tenant covenants and
agrees that it shall make no alterations or additions to the electric equipment
and/or appliances without the prior written consent of Landlord in each
instance. Landlord shall maintain the light fixtures in the Premises and install
any lamps, bulbs, ballasts or starters to be used by Tenant in the Premises, all
as an Operating Cost, except that any light fixtures, ballasts, starters and
bulbs which are not building standard items shall be repaired or replaced by
Landlord at Tenant's expense. Landlord reserves the right to stop the electrical
system when necessary by reason of accident or emergency or for repairs,
alterations, regular maintenance, replacements or improvements, which in the
judgment of the Landlord are desirable or necessary, until said repairs,
alterations, regular maintenance, replacements or improvements shall have been
completed.
F. Water. Landlord shall furnish cold water from City of Milwaukee mains
-----
from regular Building outlets for drinking, lavatory and toilet purposes, drawn
through fixtures installed by Landlord or by Tenant with Landlord's prior
written consent, and hot water for public lavatory purposes from the regular
supply of the Building. Tenant shall pay Landlord at rates fixed by Landlord for
water furnished for any other purpose as Additional Rent hereunder. Tenant shall
not waste or permit the waste of water.
G. Janitorial Service. Landlord shall also furnish janitorial and
------------------
cleaning services as set forth in Appendix B, on Monday through Friday, Holidays
excepted. Tenant shall not provide janitor services in the Premises without the
prior written consent of Landlord and then only at Tenant's sole responsibility,
cost and expense, by contractors or employees at all times satisfactory to
Landlord in its sole discretion. Notwithstanding the foregoing, if the persons
providing janitorial services for Landlord do not meet the security standards
established by Tenant or if such persons at any time during the term of the
Lease pose a security risk, as reasonably determined by Tenant, or if the
services provided by Landlord do not meet the standards set forth on Appendix B,
then Tenant shall give written notice thereof to the Landlord. If the problem
stated in the notice is not corrected by Landlord on or before thirty (30) days
following said notice, Tenant shall be permitted to provide its own janitorial
services. Tenant shall obtain Landlord's approval of the persons and/or entities
providing janitorial services on behalf of Tenant unless such services are
provided by employees of Tenant or Tenant's holding company. Landlord hereby
approves the use by Tenant of its employees or the employees of Tenant's holding
company to provide such services. Regardless of whether Tenant uses its own
employees or employees of the holding company or a third party to provide
janitorial services, if Tenant provides its own janitorial services, the
provision of such services and the persons and/or entities providing such
services shall be subject to rules and regulations reasonably imposed by
Landlord.
H. Window Washing. Landlord shall furnish window washing of all exterior
--------------
windows, weather permitting, at intervals to be determined by Landlord, but not
less than two (2) times during each calendar year.
I. Interruption of Service. Landlord does not warrant that any service
-----------------------
will be free from interruption caused by labor controversies, accidents,
inability to obtain fuel, steam, water or supplies, governmental regulations, or
other causes beyond the reasonable control of the Landlord, or repairs,
alterations, replacements or improvements to such systems. No such interruption
of service shall be
-7-
deemed as eviction or disturbance of Tenant's use and possession of the Premises
or any part thereof, or render Landlord liable to Tenant for damages, by
abatement of Rent or otherwise, or relieve Tenant from performance of Tenant's
obligations under this Lease, except that if such interruption of service
continues uncorrected for a period of seventy-two (72) hours and does not result
from the errors or omissions of the Tenant or a Force Majeure event, then if the
interruption of service results in the complete loss to the Premises of (i)
electricity or (ii) elevator service or (iii) heat or (iv) air conditioning or
(v) ventilation, Landlord shall be liable to Tenant for damages limited to
abatement of Rent and all other charges due under the Lease for the period in
excess of seventy-two (72) hours during which such condition continues
uncorrected. If such interruption of service continues uncorrected for
seventy-two (72) hours and does not result from the errors or omissions of the
Tenant or a Force Majeure event and such interruption results in the partial
loss of any of the above enumerated services, then the Landlord shall be liable
to Tenant for damages limited to a partial abatement of Rent for the period in
excess of seventy-two (72) hours during which the condition continues
uncorrected based upon the number of square feet in the Premises affected by
such interruption of service. Landlord shall use reasonable efforts not to
interrupt voluntarily any service to the Premises except upon forty-eight (48)
hours advance notice to Tenant and then only in a manner which does not
materially intefere with Tenant's business operations, unless Landlord must do
so because of an emergency or if necessary for the proper maintenance and
operation of the Building, in which event Landlord shall use reasonable efforts
to minimize interference with Tenant's business operations.
The heating, ventilating, air conditioning and electrical service furnished
by Landlord pursuant to this Section 4, shall be furnished at capacities
sufficient to accommodate Tenant's use of the equipment listed on Appendix F
attached hereto.
Tenant shall make arrangements directly with the telephone company
servicing the Building for such telephone service in the Premises as may be
desired by Tenant. Tenant shall pay the entire cost of all telephone charges.
5. ALTERATIONS AND REPAIRS.
A. Tenant shall not make any improvements or alterations in or additions,
changes or installations to the Premises (collectively, "Work") without
submitting plans and specifications therefor to Landlord, and obtaining
Landlord's prior written consent in each instance. Landlord may withhold such
consent in its sole discretion if the improvements or alterations or additions
or changes or installation shall affect the structural portions of the Project
or any of its mechanical, electrical or plumbing systems. Tenant shall have the
right, without Landlord's consent, to make non-structural alterations, the total
cost of which are less than $10,000.00. For the purposes of the preceding
sentence, the term "non-structural alterations" shall mean aesthetic changes to
the Premises such as painting, carpeting, and wall covering. Tenant shall also
have the right to perform internal wiring Work without first obtaining
Landlord's consent to such Work; provided, however, Tenant hereby indemnifies
and holds harmless Landlord and the Project from any and all loss, damages,
costs, liabilities and expenses arising in connection with the internal wiring
Work performed by Tenant, its employees, agents or contractors, including
without limitation, damages and costs incurred by other tenants of the Project
because of such Work. All work shall be performed (a) at the sole cost and
expense of Tenant by employees of contractors employed by Landlord, or with
Landlord's written consent given prior to the letting of the contract, by
contractors employed by Tenant under a written contract previously approved in
writing by Landlord, and (b) on such terms and under such conditions as
Landlord, in its sole discretion, shall determine as will protect the Premises,
the Building and the Project from improper contractors' work and against the
imposition of any lien resulting from Work; without limiting the foregoing, if
Landlord consents to any Work, it shall be performed subject to the following
requirements:
(1) If the Work is to be done by Tenant's contractors, Tenant shall
furnish to Landlord prior to commencement thereof, building permits and
certificates of appropriate insurance and bonds satisfactory in all
respects to Landlord.
(2) Upon completion of any Work, Tenant shall furnish Landlord with
contractors' affidavits and full and final waivers of lien, each conforming
to the applicable Wisconsin statutory requirements, as-built plans of any
Work and receipted bills covering all labor and materials expended and
used.
(3) Any Work permitted to be undertaken by Tenant's contractors shall
be performed in such a fashion and by such means as necessary to maintain
peace and harmony among the other contractors serving the Project and the
other tenants and so as not to cause interference with the continuance of
work to be performed or services to be rendered to the Project or the other
tenants.
(4) All Work shall comply with all insurance requirements and with
all applicable laws, ordinances and regulations. All Work shall be
constructed in a good and workmanlike manner, and only good grades of
material shall be used with a quality equal to or better than that used in
the Project.
(5) Tenant shall permit Landlord to supervise all Work within the
Premises. Landlord shall charge a supervisory fee not to exceed (a) ten
percent (10%) of the total cost of the Work, including, without limitation,
all labor and material costs, if Landlord's employees or contractors
perform the Work, and (b) five percent (5%) of the total cost of the Work,
including, without limitation, all labor and material costs, if Tenant's
employees or contractors perform the Work and if Tenant was required to
obtain Landlord's consent to the Work pursuant to this Section 5.
Notwithstanding the foregoing, Tenant shall not be required to pay the 5%
supervisory fee for internal wiring Work performed by Tenant, its employees
or contractors.
B. If Tenant desires telegraphic, telephonic, burglar alarm, computer
installations or signal service (all of which shall be at Tenant's sole cost and
expense), Landlord shall, upon request, direct where and how all connections and
wiring for such service shall be introduced and run. In the absence of any such
directions, Tenant shall make no borings, cutting or install any wires or cable
in or about the Premises. Landlord shall use its best efforts not to impose
conditions or requirements on Tenant with respect to this Section 5.B. that
unreasonably interfere with Tenant's business operations.
C. Tenant agrees to protect, defend and indemnify Landlord, its agents
(including, without limitation, the Rental Agent) and employees, the Premises,
the Building and the Project from and against any and all liabilities of every
kind and description which may arise out of or be connected in any way with
any Work, performed by Tenant and whether performed in compliance with this
Section 5.
D. Any mechanic's lien filed against the Premises or the Project or any
notice which is received by either Landlord or Tenant or filed for work or
materials furnished or claimed to be furnished and deriving from Work or for
materials or work claimed to have been furnished to Tenant or the Premises shall
be released and discharged of record by Tenant, in either case, within ten (10)
days after such filing or receipt, whichever is applicable, at Tenant's expense.
If Tenant chooses to contest such claim or notice or lien, Tenant may do so in
place of causing the release and discharge thereof, provided that within said
twenty (20) day period, (i) Tenant provides Landlord with a title indemnity or
bond or other adequate security covering any possible lien or claim that may
arise from the failure to release and discharge such claim, notice or lien;
(ii) Tenant contests such claim, notice or lien in good faith by appropriate
proceedings that operate to stay enforcement thereof; and (iii) Tenant promptly
pays and discharges any final adverse judgment entered in any such proceeding.
If Tenant has not caused the release or discharge or begun appropriate
proceedings to contest such claim, notice or lien, within said twenty (20) days,
Landlord may, but shall not be obligated to, pay the amount necessary to remove
the same without being responsible for making an investigation as to the
validity or accuracy thereof, and the amount so paid, together with all costs
and expenses (including, without limitation, reasonable attorneys' fees)
incurred by Landlord in connection therewith, shall be deemed Additional Rent
hereunder, payable upon demand. Tenant has no power or authority to cause or
permit any lien or encumbrance of any kind whatsoever, whether created
-8-
by act of Tenant, operation of law or otherwise, to attach to or be placed
upon Landlord's title or interest in the Premises or the Project, and any
and all liens and encumbrances created by Tenant shall attach to Tenant's
interest only.
E. Except for ordinary wear and as otherwise provided in this Lease,
Tenant shall, at all times during the Term hereof, at its sole expense, keep all
Tenant's movable and removable fixtures located in or appurtenant to the
Premises in good order, repair and condition, and Tenant shall promptly arrange
with the Landlord to have Landlord (or Landlord's agent) make repairs of all
other damages to the Premises and the replacement or repair of all damages or
broken glass (including signs thereon), fixtures and appurtenants (including
hardware and heating, cooling, ventilating, electrical, plumbing and other
mechanical facilities in the Premises), with materials equal in quality and
class to the original materials damaged or broken, within any reasonable period
of time specified by Landlord. Landlord may, but shall not be required to do so,
enter the Premises at all reasonable times to make any repairs, alterations,
improvements or additions, as Landlord shall desire or deem necessary for the
safety, protection, preservation or improvement of the Project, or as Landlord
may be required to do by any governmental department or agency, or by the order
or decree of any court or by any other proper authority. The cost of all repairs
made by Landlord to the Project which are made necessary as a result of misuse
or neglect by Tenant or Tenant's employees, invitees, servants, contractors or
agents shall be immediately paid as Additional Rent by Tenant to Landlord upon
being billed for same. The cost of all other repairs and replacements (except
those caused by Tenant's misuse or negligence and those relating to Tenant's
movable and removable fixtures) shall be paid for by the Landlord and deemed an
item of Operating Costs.
F. Landlord shall maintain, replace and repair the exterior structural
portions of the Premises, to-wit: foundation, bearing walls and roof. Landlord
shall maintain, replace and repair all walls, plate glass, floors and ceilings,
wiring (except for Tenant's telephone and data wiring), pipes and equipment
within the walls, floors and ceilings, and all equipment including without
limitations, heating, air conditioning, ventilating, electrical and plumbing
equipment and elevator machinery. Landlord shall maintain the Project in as good
a condition and repair as the Project was in on the Commencement Date of this
Lease. Landlord shall manage and operate the Project in a manner consistent with
the management and operation of the Project as of the Commencement Date of this
Lease. Landlord shall maintain, repair and replace all common areas in the
Building and the Project in as good a condition and repair and in as clean and
orderly an appearance as existed on the Commencement Date of this Lease. Costs
and expenses incurred by Landlord in connection with its maintenance, repair and
replacement obligations shall be included as an item of Operating Costs. To the
best of Landlord's knowledge and belief, the Project is in good repair and all
Project systems are in operating condition as of the Commencement Date.
6. USES OF PREMISES. The Premises shall be occupied and used by Tenant
only for general office purposes, and for no other purpose. Without limiting the
generality of the foregoing, no use shall be made of the Premises nor acts done
which will increase the existing rate of insurance upon the Project or cause a
cancellation of any insurance policy covering the Project or any part thereof or
require additional insurance coverage. Tenant shall not permit to be kept, used
or sold in or about the Premises any article which may be prohibited by
Landlord's insurance policies.
7. BUILDING RULES AND GOVERNMENTAL REGULATIONS. Tenant shall abide by all
applicable laws or governmental regulations concerning its use of the Premises.
Tenants shall not be required to make any alterations or improvements to the
Project unless related to the conduct of Tenant's business on the Premises, to
make the Project comply with any governmental law, rule, regulation, order or
ordinances. Tenant shall also abide by all uniform reasonable rules and
regulations adopted or to be adopted from time to time by Landlord pertaining to
the operation and management of the Project. Except in the event of an
emergency, Landlord shall give Tenant thirty (30) days prior written notice of
the adoption of any rule or regulation. If any rules and regulations are
contrary to the terms of the Lease, the terms of this Lease shall prevail. The
present rules are contained in Appendix C. The violation of the Project rules or
the laws or regulations governing Tenant's use of the Premises shall be subject
to a default under Section 11(A)(2) of this Lease. Landlord shall not be
responsible to Tenant for violation of rules or regulations or terms of this
Lease or any other Lease in the Project by another tenant, nor shall failure to
obey the same by others or lack of enforcement by Landlord relieve Tenant from
its obligations to comply therewith. Landlord shall use its best efforts to
enforce all rules and regulations in a non-discriminatory manner.
8. CLAIMS; INSURANCE LIABILITY.
A. To the extent permitted by law, Tenant waives all claims it may have
against Landlord, its officers, directors, servants, agents or employees for
damage to person or property sustained by Tenant or by any occupant of the
Premises or the Project, or any other person, occurring in or about the Premises
or the Project, resulting from the Premises or the Project or any part of said
Premises or Project becoming out of repair or resulting from any existing or
future condition, defect, matter or thing in the Premises, the Project or any
part of it, or from equipment or appurtenances therein, or from the action of
the elements, or any accident within or adjacent to the Premises or Project or
resulting directly or indirectly from any act or omission of Landlord or any
occupant of the Premises or Project or any other person while on the Premises or
the Project. If any such damage to the Premises or the Project or any equipment
or appurtenances therein, or to tenants thereof, or their agents, employees,
contractors or invitees, results from any act, omission or negligence of Tenant,
its agents, employees, servants, contractors or invitees, Landlord may, at
Landlord's option, repair such damage and Tenant shall upon demand by Landlord
reimburse Landlord for all costs of such repairs and damages. All property on
the Project or in the Premises belonging to the Tenant, its agents, employees,
servants, contractors or invitees or to any occupant of the Premises shall be
there at the risk of the Tenant or such other person only and Landlord shall not
be liable for damage thereto or theft, misappropriation or loss thereof.
Notwithstanding anything contained in this Section 8 to the contrary, no
agreement of Tenant in this Section 8 shall be deemed to exempt Landlord from
liability for injury to person or damage to property caused by or resulting from
the negligence of Landlord, its agents or employees in the operation or
maintenance of the Premises or the Project or resulting from landlord's default
under this Lease.
B. Landlord and Tenant agree to have all property insurance policies
which may be carried by either of them endorsed with a clause providing that any
release from liability of or waiver of claim for recovery from the other party
entered into in writing by the insured thereunder prior to any loss or damage
shall not affect the validity of said policy or the right of the insured to
recover thereunder. Without limiting any release or waiver of liability or
recovery contained in any other Section of this Lease but rather in confirmation
and furtherance thereof, Landlord and Tenant each hereby waive any and every
claim for recovery from the other for any and all loss of or damage to the
Project or the Premises or to the contents thereof, which loss or damage is
covered by valid and collectible special form property coverage insurance
policies, to the extent that such loss or damage is recoverable under said
insurance policies. Inasmuch as this mutual waiver will preclude the assignment
of any such claim by subrogation (or otherwise) to an insurance company (or any
other person), Landlord and Tenant each agree to give to each insurance company
which has issued, or in the future may issue, its policies of special form
property coverage insurance, written notice of the terms of this mutual waiver,
and to have said insurance policies properly endorsed, if necessary to prevent
the invalidation of said insurance coverage by reason of said waiver.
-9-
C. At all times during the Term of this Lease, Tenant shall at its sole
cost and expense maintain in full force and effect insurance protecting Tenant
and Landlord and their respective agents and employees, and any other parties
designated by Landlord from time to time, with terms, coverages and in companies
at all times reasonably satisfactory to Landlord and with such increases in
limits as Landlord may, from time to time, reasonably request. Initially, such
coverage shall be in the following amounts:
(1) Comprehensive or Commercial General Liability Insurance,
including Contractual Liability insuring the indemnification provisions
contained in this Lease, with limits of not less than One Million Dollars
($1,000,000.00) combined single limit per occurrence for Bodily Injury,
Death and Property Damage, and umbrella coverage of not less than
$5,000,000. The Comprehensive or Commercial General Liability policy shall
include the Landlord as an additional insured, with a severability of
interest endorsement.
(2) Insurance against (a) "All Risks" of physical loss covering the
tenant improvements (if any) described in Item 12 of the Schedule, the
Work, movable fixtures, office equipment, furniture, trade fixtures,
merchandise and all other items of Tenant's property on the Premises, and
(b) loss of use of the Premises. Landlord shall maintain in full force and
effect insurance in amounts, with companies and of a type maintained by
prudent landlords of buildings of similar age and quality to the Building
in Milwaukee, Wisconsin metropolitan area. The amount of the deductible
under such insurance policies shall be the amount which is customary under
insurance policies maintained by prudent landlords of buildings of similar
age and quality to the Building in the Milwaukee, Wisconsin, metropolitan
area (currently estimated to be $20,000.00). Tenant understands and agrees
that in lieu of insurance, Landlord may provide self-insurance with respect
to the Building, insuring itself against casualties similar to those
insured against by landlords of buildings of similar age and quality to the
Building in the Milwaukee, Wisconsin metropolitan area; provided, however,
if Landlord elects to self-insure, for all purposes of this Lease, Landlord
will be deemed to have in effect insurance policies of the type and in
amounts and with deductible amounts maintained by prudent landlords of
buildings of similar age and quality to the Building in the Milwaukee,
Wisconsin metropolitan area. In the event of damage to the Building,
Landlord shall not be required to make any claims under Landlord's
insurance policy. If Landlord chooses not to make a claim under its
insurance policy with respect to such damage, however, Landlord shall not
include as an Operating Cost, the amount Landlord would have recovered had
Landlord made such claim, to the extent that the loss or damage would have
been recoverable under said insurance policies.
D. Tenant hereby agrees to prior to the commencement of the Term hereof
and prior to the expiration of any policy, furnish Landlord certificates
evidencing that all required insurance is in force and providing that such
insurance may not be cancelled or changed without at least thirty (30)
days' prior written notice to Landlord and Tenant (unless such cancellation is
due to nonpayment of premiums, in which event ten (10) days' prior written
notice shall be provided).
E. Tenant hereby agrees to indemnify, defend and hold harmless Landlord
and its officers, directors, servants, agents and employees against any claims
or liability for damage to person or property (or for loss or misappropriation
of property) occurring in the Premises, arising from any breach or default on
the part of Tenant during the Term of this Lease or from any act or omission of
Tenant or of any employee, agent, servant, invitee or contractor of Tenant, and
from any costs relating thereto (including, without limitation, attorneys'
fees).
F. Landlord hereby agrees to indemnify, defend and hold harmless Tenant
and its officers, directors, servants, agents and employees against any claims
or liability for damage to person or property (or for loss or misappropriation
of property) occurring in any part of the Project other than the Premises,
arising from any breach or default on the part of the Landlord during the term
of this Lease or from any act or omission of Landlord or of any employee, agent,
servant, invitee or contractor of Landlord, and from any costs relating thereto
(including without limitation, attorneys' fees).
9. FIRE AND OTHER CASUALTY.
A. In the event that (i) the Premises are made substantially untenantable
by fire or other casualty, including damage or casualties of war, and Landlord
shall decide not to restore or repair the same, or (ii) the Building is so
damaged by fire or other casualty that Landlord shall decide to demolish or not
rebuild the same, then, in either of such events, either Landlord or Tenant
shall have the right to terminate this Lease by notice to the other within
ninety (90) days after the date of such fire or other casualty.
B. If the Premises or the Building are made untenantable by fire or other
casualty, and this Lease is not terminated pursuant to Section 9A above,
Landlord shall, to the extent permitted by any mortgages or Ground Leases with
respect to the Premises and the Project, immediately take such action as is
necessary to make applicable insurance proceeds available and to use the same to
reconstruct, repair and restore the Building and the Premises, subject to zoning
laws and building codes then in effect, and including only Building Standard
Tenant Improvements (as provided in Exhibit A of Appendix D) or, if any portion
of the Premises has been leased on an "as is" basis, including only improvements
similar to those located in such portion of the Premises on the Commencement
Date or the date on which such portion was added to the Premises, if later than
the Commencement Date (herein, the improvements Landlord is required to make are
called the "Required Improvements"), and at Landlord's option Tenant may be
permitted or required to devote the proceeds of its insurance described in
Section 8C(2)(a) to cause restoration of tenant improvements over and above the
Required Improvements, and pay for the same to Landlord or through Landlord as
if newly done pursuant to Section 5 of this Lease. In the event a fire or other
casualty occurs and both Landlord and Tenant are insured, it is agreed that the
coverage of the Landlord shall be primary and that Landlord's recovery in no
event shall be reduced by any insurance recovery to Tenant.
C. Notwithstanding anything in this Section 9 to the contrary, if all or
any portion of the Premises shall be made untenantable by a fire or other
casualty, Landlord shall with reasonable promptness and in no event later than
30 days following the fire or other casualty cause a registered architect
selected by Landlord and licensed to do business in Wisconsin to estimate the
amount of time required to substantially complete repair and substantially
complete restoration of the Premises and make the Premises tenantable again,
using standard working methods. If the estimate indicates that the Premises
cannot be made tenantable within six (6) months from the date the repair and
restoration is started, either party shall have the right to terminate this
Lease by giving to the other notice of such election within ten (10) days after
its receipt of the architect's certificate. If the estimate of the registered
architect indicates that the Premises can be made tenantable within six (6)
months from the date the repair and restoration is started, or if neither party
terminates this Lease pursuant to this Section 9C, Landlord shall proceed with
reasonable promptness to repair and restore the Premises, provided that if the
estimate of the registered architect indicates that the Premises can be made
tenantable within six (6) months from the date repair and restoration is
started, and if Landlord does not repair and restore the Premises within said
six (6) month period, which six (6) month period shall be extended to the extent
of any Reconstruction Delays, then Tenant may terminate this Lease upon fifteen
(15) days prior written notice to Landlord. For purposes of this Lease, the term
"Reconstruction Delays" shall mean: (i) any delays caused by the insurance
adjustment process, (ii) any delays caused by Tenant, and (iii) any delays
caused by events beyond Landlord's reasonable control.
D. In the event that this Lease is terminated pursuant to Section 9A or
Section 9C above, Rent shall be apportioned on a per diem basis and be paid to
the date of the fire or other casualty. In the event that such fire or casualty
renders all or any portion of the Premises
-10-
untenantable and this Lease is not terminated pursuant to Section 9A or Section
9C, then subject to the last sentence of this Section 9D, the Rent provided for
in this Lease shall xxxxx on a per diem basis during the period of repair and
restoration until the Premises are tenantable again, and the abatement shall be
in an amount bearing the same ratio to the total amount of Rent due for such
period as the untenantable portion of the Premises from time to time bears to
the entire Premises. Any provision hereof notwithstanding, Tenant's Rent shall
not xxxxx if its negligence was the cause of the fire or other casualty; and
whether or not the Lease is terminated, Tenant's recovery shall be limited to
the amount necessary to cause restoration of the tenant improvements as
described in this Section 9.
10. RIGHTS RESERVED TO THE LANDLORD. Landlord reserves the following
rights, exercisable without notice to Tenant except as otherwise expressly
provided herein, and without liability to Tenant for damage or injury to
property, person or business (all such claims being hereby released, except to
the extent that they are caused by Landlord's negligence), and without effecting
an eviction or disturbance of Tenant's use or possession or giving rise to any
claim for offsets, or abatements of Rent or affecting any of Tenant's
obligations under this Lease. Specification of the rights reserved to Landlord
herein shall not exclude any right accruing to Landlord by operation of law or
reserved specifically or by inference from any provision contained in this
Lease:
A. Name: To change the Project's name or street address.
----
B. Signs: To install, affix and maintain any and all signs on the
-----
exterior and interior of the Building. No signs visible from the exterior
of the Building or from within its lobbies or common corridors shall be
permitted to be installed in the Premises by Tenant without Landlord's
approval of the sign and the location thereof, which may be withheld in
Landlord's sole discretion. Landlord reserves the right to remove at
Tenant's expense any such sign not so approved by Landlord.
C. Windows: To designate and approve, prior to installation all
-------
types of window shades, blinds, drapes, awnings, window ventilators and
other similar equipment and to control all the internal lighting that may
be visible from the exterior of any Building.
D. Service Contracts: To designate all sources furnishing sign
-----------------
painting and lettering, ice and drinking water, towels, toilet supplies,
shoe shining or other services on the Premises, provided that the rates for
such services as are designated by Landlord are reasonably competitive with
rates charged therefor in the Milwaukee metropolitan area.
E. Keys: To retain at all times and to use passkeys to the Premises
----
and keys to all locks within and into the Premises. No locks or bolts shall
be altered, changed or added without the prior written consent of Landlord.
F. Access for Repairs, etc.: To have access to the Premises to
-----------------------
perform its duties and obligations under this Lease and to inspect the
Premises, make repairs, alteration, additions or improvements, whether
structural or otherwise, in and about the Premises, the Project or any part
thereof as set forth in various Sections of this Lease including, without
limitation, Section 5 and Section 10(N). Except in the event of an
emergency, Landlord shall access the Premises only upon the prior consent
of Tenant; provided, however, in the event Tenant does not consent to
Landlord's entering the Premises for the purposes of making any repair,
alteration, additions or improvements required to be made, whether
structural or otherwise, or to perform Landlord's maintenance, repair and
replacement obligations under this Lease, Landlord shall have no liability
to Tenant with respect to any damage caused because of Landlord's inability
to gain access to the Premises and Tenant shall be liable for any loss or
damage to the Project caused because Landlord was not permitted access to
the Premises.
G. Occupancy: To decorate, remodel, repair, alter or otherwise
---------
prepare the Premises for reoccupancy at any time after Tenant vacates or
abandons the Premises. Such acts of Landlord shall not relieve Tenant of
its obligation to pay Rent to the Termination Date.
H. Rights to Conduct Businesses: To grant to anyone the exclusive
----------------------------
right to conduct any business or render any service in the Project provided
such exclusive right shall not operate to exclude Tenant from the use
permitted by this Lease.
I. Heavy Equipment: To approve the weight, size or location of safes
---------------
and other heavy equipment and articles in and about the Premises and the
Project and to require all such items and furniture to be moved into and
out of the Building or anywhere else in the Project and the Premises only
at such times and in such manner as Landlord shall direct in writing.
Movement of Tenant's property into or out of the Project and within the
Project is entirely at the risk and responsibility of Tenant.
J. Show Premises: To show the Premises to prospective tenants or
-------------
brokers during the last year of the Term of this Lease or the last year of
any extension thereof or to show the Premises to prospective purchasers at
all reasonable times, provided prior notice is given to Tenant in each case
and Tenant's use and occupancy of the Premises shall not materially be
inconvenienced by any such action of Landlord.
K. Close Project: To close or restrict access to the Project during
-------------
such hours as Landlord shall from time to time reasonably determine, and on
Holidays subject, however, to Tenant's right to admittance at all times
under such regulations as Landlord may prescribe from time to time which
may include, by way of example but not of limitation, that persons entering
or leaving the Project identify themselves to a security guard by
registration or otherwise and that said persons establish their right to
enter or leave the Project.
-11-
L. [Reserved]
M. Use of Lock Box by Landlord: Landlord may from time to time elect
---------------------------
to designate a lock box collection agent (independent agent, bank or other
financial institution) to act as Landlord's agent for the collection of
amounts due Landlord. In such event the date of payment of Rent or other
sums paid Landlord through such agent shall be the date of agent's receipt
of such payment (or the date of collection of any such sum if payment is
made in the form of a negotiable instrument thereafter dishonored upon
presentment); however, for purposes of this Lease, no such payment or
collection shall be deemed "accepted" by Landlord if Landlord issues a
check payable to the order of the Tenant in the amount sent to the lock box
and if Landlord mails the check to the Tenant addressed to the place
designated in this Lease for notice to Tenant within twenty-one (21) days
after the amount sent by the Tenant is received by the lock box collection
agent or if the Landlord returns a dishonored instrument within twenty-one
(21) days of its dishonor. Return of any such sum to Tenant by so sending
such a check of the Landlord or by so sending a dishonored instrument to
the Tenant within the appropriate twenty-one (21) day period shall be
deemed to be rejection of Tenant's tender of such payment for all purposes
as of the date of Landlord's lock box collection agent's receipt of such
payment (or collection). The return of Tenant's payment in the manner
described in this Section 10(M) shall be deemed not to be a waiver of any
breach by Tenant of any term, covenant or condition of this Lease nor a
waiver of any of Landlord's rights or remedies granted in this Lease. The
possession of Tenant's funds or negotiation of Tenant's negotiable
instrument by Landlord's agent or Landlord during the applicable twenty-one
(21) day period shall be deemed not to be a waiver of any defaults of
Tenant or any rights of Landlord theretofore accrued nor shall any such
possession or negotiation be considered an acceptance of Tenant's tender.
N. Repairs and Alterations: At any time Landlord may decorate, make
-----------------------
alterations, additions or improvements structural or otherwise, in or to
the Project or any part thereof, including the Premises, and perform any
acts required or permitted hereunder or related to the safety, protection,
preservation or improvement of the Project or the Premises, and during such
operations Landlord shall have the right to take into and through the
Premises or any part of the Project all material and equipment required and
to close and temporarily suspend operation of entrances, doors, corridors,
elevators and other facilities, and to have access to and open all
ceilings, without liability to Tenant by reason of interference,
inconvenience, annoyance or loss of business; provided, however, that
Landlord shall cause as little inconvenience or annoyance to Tenant as is
reasonably possible under the circumstances, and shall not do any act which
would permanently reduce the size of the Premises. Landlord shall do any
such work during ordinary business hours, and Tenant shall pay Landlord for
overtime and for any other expenses incurred if such work is done during
other hours at Tenant's request. Landlord may do or permit any work to be
done upon or along, and any use of, any adjacent or nearby building, land,
street, alley or way. Landlord shall use reasonable efforts not to make
voluntarily alterations, additions or improvements to the Premises except
upon forty-eight (48) hours advance notice to Tenant and then only in a
manner which does not materially interfere with Tenant's business
operations, unless Landlord must do so because of an emergency or if
necessary for the proper maintenance and operation of the Building, in
which event Landlord shall use reasonable efforts to minimize interference
with Tenant's business operations.
O. Other Rights: All other rights reserved by the Landlord pursuant
------------
to the provisions of this Lease.
11. DEFAULT AND LANDLORD'S REMEDIES.
A. Defaults. The occurrence of any of the following shall constitute a
--------
default hereunder:
(1) If Tenant defaults in the payment of Rent (whether Base Rent,
Operating Cost Share Rent, Tax Share Rent, or Additional Rent), or any
other sum required to be paid by this Lease; provided, however, that
Landlord shall not be entitled to exercise its remedies set forth herein or
at law or in equity with respect to such default, unless such default is
not remedied within five (5) days after written notice thereof by Landlord
to Tenant;
(2) If Tenant defaults in the prompt and full performance or
observance of any term, covenant, agreement or provision of this Lease
(except those specified in Subsections (1), (3), (4), (5), (6), (7), (8)
and (9) of this Section 11A); provided, however, that Landlord shall not be
entitled to exercise its remedies set forth herein or at law or in equity
with respect to such default, (i) if such default is remedied within thirty
(30) days after written notice thereof by the Landlord, or (ii) with
respect to a default which cannot reasonably be cured within thirty (30)
days, if Tenant immediately commences to cure and diligently proceeds to
complete the cure
-12-
of such default within a reasonable time period which shall in no event
extend beyond ninety (90) days after Tenant receives written notice of such
default;
(3) If Tenant abandons the Premises during the term hereof;
(4) If the leasehold interest of Tenant is levied upon under execution
or is attached under process of law, which levy or attachment continues for
a period of thirty (30) days;
(5) If Tenant becomes insolvent or bankrupt or shall generally not pay
its debts as they become due or shall admit in writing its inability to pay
its debts or shall make a general assignment for the benefit of creditors;
(6) If Tenant shall commence any case, proceeding or other action
seeking reorganization, arrangement, adjustment, liquidation, dissolution
or composition of it or its debts under any law relating to bankruptcy,
insolvency, reorganization or relief of debtors, or seeking appointment of
a receiver, trustee, custodian or other similar official for it or for all
or any substantial part of its property,
(7) If Tenant shall take any corporate or other action to authorize
any of the actions set forth above in Subsections (5) and (6) of this
Section 11A;
(8) If any case, proceeding or other action against Tenant shall be
commenced seeking to have an order for relief entered against it as debtor,
or seeking reorganization, arrangement, adjustment, liquidation,
dissolution or composition of it or its debts under any law relating to
bankruptcy, insolvency, reorganization or relief of debtors, or seeking
appointment of a receiver, trustee, custodian or other similar official for
it or for all or any substantial part of its property, and such case,
proceeding or other action (i) results in the entry of an order for relief
against it which is not fully stayed within seven (7) business days after
the entry thereof or (ii) remains undismissed for a period of thirty (30)
days; or
(9) If Tenant does any act or any other circumstance occurs in
violation of the provisions of Section 14.G and 16.
B. Landlord's Remedies.
--------------------
(1) Upon the occurrence of any one or more defaults by Tenant,
Landlord may elect, by written notice to Tenant, to terminate this Lease
and Tenant's right to the Premises as of the date set forth in the notice
or, without terminating this Lease, to terminate Tenant's right to
possession of the Premises as of the date set forth in the notice. Upon any
termination of this Lease, whether by lapse of time or otherwise, or upon
any termination of Tenant's right to possession without termination of the
Lease, Tenant shall surrender possession and vacate the Premises and
deliver possession thereof to Landlord, and Tenant hereby grants to
Landlord full and free license to enter into and upon the Premises with
process of law in the event of any such termination of this Lease
or of Tenant's right to possession, and to repossess Landlord of the
Premises as of Landlord's former estate and to expel or remove Tenant and
any others who may be occupying or be within the Premises and to remove any
and all property therefrom, and without relinquishing Landlord's rights to
Rent or any other right given to Landlord hereunder or by law or in equity.
Except as otherwise provided in this Section 11, Tenant expressly waives
the service of any notice of intention to terminate this Lease or to
reenter the Premises and waives the service of any demand for payment of
Rent or possession and waives the service of any other notice or demand
prescribed by any statute or other law.
(2) If Tenant voluntarily abandons the Premises or otherwise entitles
Landlord to elect to terminate Tenant's right to possession only without
terminating the Lease, and Landlord does so elect, Landlord may at
Landlord's option enter into the Premises, remove Tenant's signs and other
evidences of tenancy, and take and hold possession thereof as set forth in
Subsection B(1) of this Section 11, without such entry and possession
terminating the Lease or releasing Tenant, in whole or in part, from
Tenant's obligation to pay the Rent hereunder for the full Term, and, at
Landlord's option, the present value of the aggregate amount of the Base
Rent, Operating Cost Share Rent, and Tax Share Rent (based upon the amount
thereof for the calendar month immediately preceding the month in which the
default has occurred) for the period from the date stated in the written
notice terminating possession to the stated end of the Term (such present
value to be computed on the basis of a per annum discount rate equal to one
(1) percentage point below the Corporate Base Rate at the time of the
default) shall be immediately due and payable by Tenant to Landlord,
together with any other monies due hereunder, and Landlord shall have right
to immediate recovery of all such amounts. In addition, Landlord shall have
the right from time to time, to recover from Tenant, and Tenant shall
remain liable for, all Rent not theretofore accelerated and paid pursuant
to the foregoing sentence and any other sums thereafter accruing as they
become due under this Lease during the period from the date stated in the
notice terminating possession to the stated end of the Term. Upon and after
entry into possession without termination of the Lease, subject to
Landlord's right to first Rent other vacant areas in the Building, Landlord
may relet the Premises or any part thereof to any person, firm or
corporation other than Tenant for such Rent, for such time (which may be a
period extending beyond the stated Term of this Lease) and upon such terms
as Landlord in Landlord's sole discretion shall determine, and Landlord
shall not be required to accept any tenant offered by Tenant or to observe
any instructions by Tenant relating to such reletting. In any such case,
Landlord may make repairs, alterations and additions in or to the Premises
and redecorate the same to the extent deemed necessary or desirable by
Landlord, and in connection therewith
-13-
Landlord may change the locks to the Premises, and Tenant shall upon
written demand pay the cost thereof, together with Landlord's expenses of
reletting. Any proceeds from the reletting of the Premises by Landlord
shall be collected by Landlord and shall first be applied against the cost
and expenses of reentry and of reletting the Premises including, but not
limited to, all brokerage, advertising, legal, alteration, redecoration,
repair, and other reasonably necessary costs and expenses incurred to
secure a new tenant for the Premises, and second to the payment of Rent
herein provided to be paid by the Tenant. If the consideration collected by
Landlord upon any such reletting, after payment of the expenses of
reletting the Premises, is not sufficient to pay any accelerated amounts of
Rent due and owing and to pay monthly the full amount of the Rent reserved
in this Lease and not theretofore accelerated. Tenant shall pay to Landlord
the accelerated amounts upon demand, and the amount of each monthly
deficiency as it becomes due. If the consideration collected by Landlord
upon any such reletting for Tenant's account after payment of the expenses
of reletting the Premises is greater than the amount necessary to pay
accelerated amounts of Rent due and owing and to pay the full amount of the
Rent reserved in this Lease and not theretofore accelerated, the full
amount of such excess shall be retained by Landlord and in no event shall
be payable to Tenant. No such reentry, repossession, repairs, alterations,
additions or reletting shall be construed as an eviction or ouster of
Tenant or as an election on Landlord's part to terminate this Lease, unless
written notice of such intention is given to Tenant, or shall operate to
release Tenant in whole or in part from any of Tenant's obligations
hereunder. Notwithstanding anything to the contrary contained in this
Section 11.B(2), Landlord will mitigate its damages as may be required
by law.
(3) If Landlord shall decide to terminate this Lease, Landlord shall
be entitled to recover from Tenant all of the amounts of Rent accrued and
unpaid for the period up to and including the date of the termination, as
well as all other additional sums for which Tenant is liable, or in respect
of which Tenant has agreed to indemnify Landlord under any of the
provisions of this Lease, which may then be owing and unpaid, and all costs
and expenses including without limitation, court costs and attorneys' fees
incurred by Landlord in the enforcement of its rights and remedies
hereunder, and in addition, Landlord, at its sole option, shall be entitled
to recover from Tenant, in lieu of any amounts due under Section 11B(2)
hereof, and Tenant shall pay to Landlord, on demand, as final and
liquidated damages (and not as a penalty), a sum equal to the amount of
Landlord's reasonable estimate of the aggregate amount of Base Rent.
Operating Cost Share Rent, Tax Share Rent, and Additional Rent that would
be payable for the period from the date of such termination through the
Termination Date, reduced by the then reasonable rental value of the
Premises for the same period, both discounted to present value at the rate
per annum equal to one (1) percentage point below the Corporate Base Rate
at the time of the default. If, before presentation of proof of such
liquidated damages to any court, commission or tribunal, the Premises, or
any part thereof, shall have been relet by Landlord for such period, or any
part thereof, the amount of Rent payable upon such reletting shall be
deemed to be the reasonable rental value for the part or the whole of the
Premises relet during the term of the reletting.
(4) Landlord may but shall not be obligated to cure any default by
Tenant hereunder, but, if Landlord so elects, all costs and expenses paid
by Landlord in curing such default and legal fees in connection therewith
shall be Additional Rent due on the next Rent date.
(5) Notwithstanding anything in the Lease to the contrary, any and all
remedies set forth in this Lease (i) shall be in addition to any and all
other remedies Landlord may have at law or in equity and (ii) shall be
cumulative. The waiver by Landlord of any breach of any term, covenant or
condition herein contained shall only be effective if it is in writing and
shall not be deemed to be a waiver of a continuing or subsequent breach of
the same, or of any other term, covenant or condition herein contained. The
acceptance of Rent or any other amounts due hereunder shall not be
construed to be a waiver of any breach by Tenant of any term, covenant or
condition of this Lease, and if the same shall be accepted after the
termination of this Lease, by lapse of time or otherwise, or of the
Tenant's right of possession hereunder, or after the giving of any notice,
such acceptance shall not reinstate, continue or extend the Term of this
Lease or affect any notice given to Tenant prior to the receipt of such
amounts, it being agreed that after the service of notice or the
commencement of a suit or after final judgment for possession of the
Premises, Landlord may receive and collect any Rent and other sums due, and
the payment of the same shall not waive or affect said notice, suit or
judgment.
(6) Notwithstanding any provision in this Lease prohibiting Landlord
from exercising its rights hereunder or at law or in equity if Tenant cures
a default within a specified period of time, if Tenant shall default (i) in
the timely payment of Rent (whether any or all of Base Rent, Operating Cost
Share Rent, Tax Share Rent, or Additional Rent) three or more times in any
period of 12 consecutive months, or (ii) in the performance of any material
particular term, condition or covenant of this Lease three or more times in
any period of six consecutive months, then, notwithstanding that such
defaults shall have each been cured within any applicable cure period after
notice, if any, as provided in this Lease, any further similar default
(including, without limitation, with respect to non-payment of Rent, the
further non-payment of any kind of Rent payable under this Lease) shall not
be curable by Tenant and Landlord shall have the right to exercise all of
the remedies provided in this Lease (including, without limitation, any and
all remedies at law and in equity) immediately after the occurrence of such
similar default.
(7) If the term of any lease, other than this Lease, made by the
Tenant for any demised premises in the Building shall be terminated or
terminable after the making of this Lease because of any default by the
Tenant under such other lease, such fact shall empower the Landlord, at
Landlord's sole option, to terminate this Lease by written notice to the
Tenant.
(8) In the event that Tenant shall file for protection under the
Bankruptcy Code now or hereinafter in effect, or a trustee in bankruptcy
shall be appointed for Tenant, Landlord and Tenant agree to the extent
permitted by law, to request that the debtor-in-possession or trustee-in-
bankruptcy, if one shall have been appointed, assume or reject this Lease
within sixty (60) days thereafter.
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12. HOLDOVER. If Tenant retains possession of the Premises or any part
thereof after the termination of the Term or any extension thereof, by lapse of
time or otherwise, Tenant shall become a tenant from month-to-month only upon
each and all of the terms herein provided as may be applicable to such month-to-
month tenancy and any such holdover shall not constitute an extension of this
Lease; provided, however, that during such holding over, Tenant shall pay Base
Rent, Operating Cost Share Rent, and Tax Share Rent at (a) one and one-half
times the rate payable for the fiscal year, or portion thereof, immediately
preceding said holding over, computed on a monthly basis for the time Tenant
thus remains in possession for the first two months that Tenant holds over and
(b) Tenant shall pay Base Rent, Operating Cost Share Rent and Tax Share Rent at
double the rate payable for the fiscal year, or portion thereof, immediately
preceding said holding over, computed on a monthly basis for the time Tenant
thus remains in possession thereafter, and, in addition, Tenant shall pay
Landlord all damages, consequential as well as direct, sustained by reason of
Tenant's holding over. Alternatively, at the election of Landlord expressed in a
written notice to tenant and not otherwise, such retention of possession shall
constitute a renewal of this Lease for one (1) year; provided, however, that
Tenant shall pay Base Rent in an amount equal to the greater of 150% of the rate
payable for the immediately preceding fiscal year, or portion thereof or 125% of
the then current market rate as determined by Landlord, and Tenant shall
continue to make all other payments required under this Lease, including,
without limitation, Operating Cost Share Rent and Tax Share Rent. Neither the
acceptance of Rent by the Landlord after termination, nor the provisions of this
Section: (i) shall be construed as, or operate as, a renewal or as a waiver of
Landlord's right of re-entry or right to regain possession by actions at law or
in equity or by any other right or remedy hereunder, or (ii) shall be construed
as, or operate as, a waiver of any other right or remedy of Landlord.
13. SUBORDINATION TO MORTGAGES AND GROUND LEASES.
A. Subordination. This Lease shall be subordinated to any and all Ground
-------------
Leases now or hereafter in force with respect to the Project at the election of
the ground lessor under any such Ground Lease. This Lease shall be subject to
all of the terms and conditions of such Ground Leases, which are hereby
incorporated in this Lease by this reference, and in the event of any conflict
between the terms hereof and the terms of any such Ground Leases, the terms of
such Ground Leases shall control. This Lease shall be subordinated to the lien
of any and all mortgages now or hereafter in force against (a) the Project and
(b) any and all Ground Leases with respect to the Project, at the election of
the mortgagee under any such mortgage. Landlord hereby represents that as of the
date hereof there are no Ground Leases with respect to the Project.
The respective rights to so subordinate this Lease at the election of any
such ground lessor or mortgagee shall continue during any amendment, renewal,
modification, consolidation, replacement or extension of each such Ground Lease
or mortgage, and shall apply to any and all advances made or hereafter made on
the security of each such mortgage.
Subordination shall be effective at election of any such ground lessor or
mortgagee. Election shall not be dependent on receipt of notice by Tenant of the
election to subordinate. Without limiting the foregoing, notice of the election
to subordinate may be given as provided for notices pursuant to this Lease.
Any subordination at the election of any such ground lessor or mortgagee
shall be self operating. Nevertheless, Tenant or its successors in interest upon
request of Landlord shall promptly execute and deliver (within ten (10) days
after a request therefor) at any time and from time to time upon the request of
Landlord, such instruments as are reasonably necessary or appropriate in
Landlord's judgment to evidence such subordination. Tenant shall not be required
to subordinate its interest in the Lease to the interest of any ground lessor or
mortgagee unless said ground lessor or mortgagee, as the case may be, shall
agree with Tenant in writing that as long as Tenant is not in default under the
terms and conditions of this Lease, Tenant shall not be disturbed in its use and
occupancy of the Premises as a result of the subordination referred to in this
Paragraph 13.A.
B. Termination of Ground Lease or Foreclosure of Mortgage. Should any
------------------------------------------------------
mortgage on the Project or on any Ground Lease be foreclosed or if any Ground
Lease be terminated and this Lease be continued:
(1) The liability of the mortgagee, ground lessor or purchaser at such
foreclosure sale shall exist only during the time such mortgagee, ground
lessor or purchaser is the owner of the Project.
(2) Tenant shall attorn, as Tenant under this Lease, without any
deductions or setoffs whatsoever to the purchaser at the foreclosure sale
(or the mortgagee if the mortgagee becomes owner of the fee estate or
lessor under any Ground Lease) or, if any Ground Lease be terminated for
any reason, Tenant shall be deemed to have attorned as Tenant under this
Lease to the ground lessor under the Ground Lease, and this Lease shall
continue in full force and effect as a direct lease between and binding
upon Tenant and such mortgagee or ground lessor, as the case may be.
Likewise, Tenant will attorn to a leasehold mortgagee in the event a
leasehold mortgagee should ever become the owner of the leasehold estate
covered by its mortgage or should become the owner of any new lease in
replacement or substitution of such leasehold estate. Tenant agrees to
promptly execute and deliver (within ten (10) days after a request
therefor) at any time and from time to time upon the request of Landlord,
or of any ground lessor under any such Ground Lease, or of any holder of
any such mortgage or leasehold mortgage, or of any such purchaser, any
instrument which, in the sole judgment of such requesting party, may be
necessary or appropriate in any such foreclosure or termination proceeding
or otherwise in evidence such attornment. Tenant shall not be required to
attorn to any ground lessor or mortgagee, unless any such ground lessor or
mortgagee, as the case may be, agrees with Tenant in writing that as long
as Tenant is not in default under the terms and conditions of this Lease,
Tenant shall not be disturbed in its use and occupancy of the Premises as a
result of the foreclosure and/or attornment referred to in this Paragraph
13.B.
C. Security Deposit. The mortgagee under a mortgage and the lessor under
----------------
any Ground Lease shall have no responsibility for the return of the security
deposit, if any, except to the extent the security deposit is held by such
mortgagee or ground lessor.
D. Notice and Right to Cure. Landlord hereby notifies Tenant that the
------------------------
Project is subject to the mortgages set forth on Appendix E attached hereto
(Mortgages Currently Affecting the Project), and Landlord agrees promptly to
notify Tenant of the placing of any additional Ground Leases or mortgages
against the real property or leasehold estate of which the Premises form a part.
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Tenant agrees to give the mortgagees shown on Exhibit E and any other
mortgagee or lessor of any Ground Lease, by registered mail, a copy of any
notice of default served upon the Landlord, provided that prior to such notice
Tenant has been notified, in writing (by way of notice of Assignment of Rents
and Leases, or otherwise), of the address of such mortgagee or lessor under any
Ground Lease. Tenant further agrees that if Landlord shall have failed to cure
such default within the time provided for in this Lease, then such mortgagee or
lessor under any Ground Lease shall be permitted to cure the default within the
time periods or extensions thereof provided to Tenant for the curing of defaults
under this Lease (including but not limited to commencement of foreclosure or
lease forfeiture proceedings, if necessary to effect such cure).
14. ASSIGNMENT AND SUBLETTING BY TENANT.
A. Tenant shall not, without the prior written consent of Landlord in each
instance, (i) assign, transfer, mortgage, pledge, hypothecate or encumber or
subject to or permit to exist upon or be subjected to any lien or charge, this
Lease or any interest under it, (ii) allow to exist or occur any transfer of or
lien upon this Lease or the Tenant's interest herein by operation of law, (iii)
sublet the Premises or any part thereof, or (iv) permit the use or occupancy of
the Premises or any part thereof for any purpose not provided for under Section
6 of this Lease or by anyone other than the Tenant and Tenant's employees. In no
event shall this Lease or any interest herein be assigned or assignable by
voluntary or involuntary bankruptcy proceedings or by operation of law or
otherwise, and in no event shall this Lease or any rights or privileges
hereunder be an asset of Tenant under any bankruptcy, insolvency or
reorganization proceedings, except as provided by law. Notwithstanding the
foregoing, tenant may assign this Lease or sublet the Premises without
Landlord's prior written consent (a) to any parent, subsidiary or affiliate of
Tenant if Tenant gives Landlord thirty (30) days' prior written notice of the
proposed assignment or sublet and if Landlord receives within such thirty (30)
day period, evidence reasonably satisfactory to Landlord of the financial
capability of said parent, subsidiary or affiliate, or (b) in connection with a
reorganization, merger, consolidation or sale by Tenant of all or substantially
all of its assets, if Tenant gives Landlord thirty (30) days' prior written
notice of said reorganization, merger, consolidation or sale and if Landlord
receives evidence satisfactory to Landlord that the net worth of the proposed
transferee or surviving entity, as the case may be, is not less than Tenant's
net worth. Any parent, subsidiary or affiliate or other transferee or surviving
entity shall continue to use the Premises in a manner consistent with Tenant's
use of the Premises. Tenant's assignment or sublet to a parent, subsidiary or
affiliate or in connection with the sale, reorganization, merger or
consolidation shall not operate to release Tenant from any of its liabilities or
obligations under this Lease. Tenant's right to assign this Lease or sublet the
Premises to a parent, subsidiary, or affiliate or in connection with a sale,
reorganization, merger or consolidation does not relieve Tenant of any other
obligations or deny Landlord any other of its rights under this Section 14,
unless specifically provided otherwise in this Section 14.
B. Consent by Landlord to any assignment, subletting, use, occupancy,
transfer or encumbrance shall not operate to relieve Tenant from any covenant,
liability or obligation hereunder (whether past, present or future), including,
without limitation, the obligation to pay Rent, except to the extent, if any,
expressly provided for in such consent, or be deemed to be a consent to any
subsequent assignment, subletting, use, occupancy, transfer or encumbrance.
Tenant shall pay all of Landlord's costs, charges and expenses, including
without limitation, reasonable attorney's fees, incurred in connection with any
assignment, subletting, use, occupancy, transfer or encumbrance made or
requested by Tenant.
C. Tenant shall, by notice in writing, advise Landlord of its intention
from, on and after a stated date (which shall not be less than sixty (60) days
after the date of Tenant's notice) to assign this Lease or sublet any part or
all of the Premises for the balance or any part of the Term, and, in such event
(except in those instances where Page 16, Insert 1 applies), Landlord shall have
the right, to be exercised by giving written notice to Tenant within thirty (30)
days after receipt of Tenant's notice, to terminate this Lease with respect to
the space described in Tenant's notice as of the date stated in Tenant's notice
for the commencement of the proposed assignment or sublease. Tenant's notice
shall include the name and address of the proposed assignee or subtenant, a true
and complete copy of the proposed assignment or sublease and sufficient
information as Landlord deems necessary to permit Landlord to determine the
financial responsibility and character of the proposed assignee or subtenant. If
Tenant's notice covers all of the Premises and if Landlord exercises its right
to terminate this Lease as to such space, then the Term of this Lease shall
expire and end on the commencement date stated in Tenant's notice as fully and
completely as if that date had been the Termination Date. If, however, Tenant's
notice covers less than all of the Premises, and if Landlord exercises its right
to terminate this Lease with respect to such space described in Tenant's notice,
then as of the commencement date stated in Tenant's notice, the Rent reserved
herein shall be adjusted on the basis of the number of rentable square feet
retained by Tenant, and this Lease as so amended, shall continue thereafter in
full force and effect. If Landlord, upon receiving Tenant's notice, does not
exercise its right to terminate as aforesaid, Landlord will not unreasonably
withhold its consent to Tenant's assignment of this Lease or subletting the
space covered by its notice, provided Tenant is not in default beyond any
applicable grace or notice period. Without limitation, it shall be deemed
reasonable for Landlord to withhold its consent to Tenant's assignment of this
Lease or subletting the space covered by its notice if the proposed assignee or
sublessee is a tenant or occupant of the Building or an affiliate (a person
controlling, controlled by or under common control with) of a tenant or occupant
of the Building.
D. If Tenant, having first obtained Landlord's consent to any assignment or
sublease, or if Tenant or a trustee in bankruptcy for Tenant pursuant to the
Bankruptcy Code, shall assign this Lease or sublet the Premises, or any part
thereof, at a rental or for other consideration in excess of the aggregate of
the Base Rent, Operating Cost Share Rent, and Tax Share Rent due and payable by
Tenant under this Lease, then Tenant shall pay to Landlord as Additional Rent
all of such excess Rent or other consideration within ten (10) days after
receipt thereof from time to time.
E. If Tenant shall assign this Lease as permitted herein, the assignee
shall expressly assume all of the obligations of Tenant hereunder and agree to
comply with and be bound by all of the terms, provisions and conditions of this
Lease, in a written instrument satisfactory to Landlord and furnished to
Landlord not later than fifteen (15) days prior to the effective date of the
assignment. If Tenant shall sublease the Premises as permitted herein, Tenant
shall obtain and furnish to Landlord, not later than fifteen (15) days prior to
the effective date of such sublease and in form satisfactory to Landlord, the
written agreement of such subtenant that it shall comply with and be bound by
all of the terms, provisions and conditions of this Lease and that it will
attorn to Landlord, at Landlord's option and written request, in the event this
Lease terminates before the expiration of the sublease.
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F. If Tenant is a corporation whose stock is not publicly traded, any
transaction or series of transactions (including, without limitation, any
dissolution, merger, consolidation or other reorganization of Tenant, or any
issuance, sale, gift, transfer or redemption of any capital stock of Tenant,
whether voluntary, involuntary or by operation of law, or any combination of any
of the foregoing transactions) resulting in the transfer of control of Tenant,
other than by reason of death, shall be deemed to be a voluntary assignment of
this Lease by Tenant subject to the provisions of this Section 14. If Tenant is
a partnership, any transaction or series of transactions (including without
limitation any withdrawal or admittance of a partner or any change in any
partner's interest in Tenant, whether voluntary, involuntary or by operation of
law, or any combination of any of the foregoing transactions) resulting in the
transfer of control of Tenant, other than by reason of death, shall be deemed to
be a voluntary assignment of this Lease by Tenant subject to the provisions of
this Section 14. The term "control" as used in this Section 14F means the power
to directly or indirectly direct or cause the direction of the management or
policies of Tenant. If Tenant is a corporation, a change or series of changes in
ownership of stock which would result in direct or indirect change in ownership
by the stockholders or an affiliated group of stockholders of less than fifty
percent (50%) of the outstanding stock as of the date of the execution and
delivery of this Lease shall not be considered a change of control.
G. Except as otherwise set forth in Section 14.A., any assignment,
subletting, use, occupancy, transfer or encumbrance of this Lease or the
Premises without Landlord's prior written consent shall be of no effect and
shall, at the option of Landlord, constitute a default under this Lease.
15. SALE BY LANDLORD. In the event of sale or conveyance or transfer by
Landlord of its interest in the Project or in the Building or in this Lease, the
same shall operate to release Landlord (subject to the second paragraph of
Section 17 hereof entitled Security Deposit) from any future obligations and any
future liability for or under any of the covenants or conditions, express or
implied, herein contained in favor of Tenant, and in such event, and with
respect to such obligations, covenants and conditions, Tenant agrees to look
solely to the successor in interest of Landlord in and to this Lease. This Lease
shall not be affected by any such sale, conveyance or transfer.
16. ESTOPPEL CERTIFICATE. Landlord shall, at the request of Tenant and
Tenant shall at the request of Landlord at any time and from time to time upon
not less than ten (10) days' prior written notice, execute, acknowledge in
recordable form, and deliver to the other, or for the Tenant to its auditor or a
prospective purchaser of its business or assets, or to its assignee or subtenant
if acceptable to Landlord, or for the Landlord to Landlord's mortgagee, the
lessor under any Ground Lease, auditors or a prospective purchaser of the
Project or any part thereof, a certificate stating that this 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 dates to which the Rent and other charges are paid, and
that Tenant is paying Rent on a current basis with no offsets or claims, and
there are not, to Tenant's or Landlord's knowledge, as the case may be, any
uncured defaults on the part of Landlord or of Tenant (or specifying such
offsets, claims or defaults, if any are claimed). Such certificate may require
the party giving it to specify the date of commencement of Rent, the
Commencement Date, the Termination Date, the Base Rent, current Operating Cost
Share Rent and Tax Share Rent estimates, the date to which Rent has been paid,
whether or not Landlord has completed any improvements required to be made to
the Premises and such other matters as may be required. It is expressly
understood and agreed that any such statement may be relied upon by any
prospective purchaser or encumbrancer of all or any portion of the Project or by
any ground lessor, or by a purchaser or assignee or lender to Tenant or to
auditors of either party hereto or by any other person to whom it is delivered.
The failure to deliver such statement within the time required hereunder shall,
at the option of the requesting party, be a default under this Lease, or be
conclusive evidence, binding upon the nonperforming party that this Lease is in
full force and effect, without modification except as may be represented by the
requesting party, that there are no uncured defaults by the requesting party and
that no more than one (1) month's Rent has been paid in advance, and the
nonperforming party shall be estopped from asserting any defaults known to it at
that time.
17. SECURITY DEPOSIT. [Reserved]
18. EXCUSE OF LANDLORD'S INABILITY TO PERFORM; LANDLORD'S DEFAULT. Except
as specifically provided to the contrary in this lease, this Lease and the
obligation of Tenant to pay Rent hereunder and perform all of Tenant's covenants
and
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agreements hereunder shall not be impaired nor shall Landlord be in default
hereunder because Landlord is unable to fulfill any of its obligations under
this Lease, if Landlord is prevented or delayed from so doing by any of the
following (which shall be referred to herein as a "Force Majeure"): any
accident, breakage, repairs, alterations, improvements, strike or labor
troubles, or any other cause whatsoever beyond the reasonable control of
Landlord, including, but not limited to, energy shortages or governmental
preemption in connection with a national emergency, or by reason of government
laws or any rule, order or regulation of any department or subdivision thereof
of any governmental agency, or by reason of the conditions of supply and demand
which have been or are affected by war or other emergency.
19. PERSONAL PROPERTY. Tenant hereby conveys to Landlord all of the
personal property situated and to be situated on the Premises as security for
the payment of all Rent due or to become due hereunder. Said property shall not
be removed therefrom without the consent of Landlord until all Rent due or to
become due hereunder shall have first been paid and discharged. It is intended
by the parties hereto that this Lease constitutes a security agreement creating
a security interest in and to such property, subject to the liens of any
existing creditors, and Landlord, upon default of Tenant in the payment of Rent,
shall have all the rights of a secured party, as provided in the Wisconsin
Uniform Commercial Code, as from time to time in effect. Landlord shall have the
right to file financing statements or to file this security agreement as a
financing statement, after the occurrence of a default by Tenant which is not
cured within any applicable cure period and Tenant agrees to execute financing
statements upon request of Landlord.
20. NOTICES. All notices and approvals to be given by one party to the
other party under this Lease shall be given in writing, mailed or delivered as
follows:
A. To Landlord as follows:
Teachers Insurance and Annuity Association of America
c/o Xxxxxxxx Xxxx MW, Inc.
Two Park Plaza
00000 Xxxx Xxxx Xxxxx Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Property Manager
With a copy to:
Teachers Insurance and Annuity Association of America
Attention: Vice President - Mortgage and Real Estate
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
And to:
Xxxxxxx & Xxxxx
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxxxx X. Xxxx
or to such other person at such other address designated by notice to Tenant.
B. To Tenant at the place set forth as Item 10 on the Schedule and at the
Premises or at such other address designated by notice to Landlord.
C. Notice may be given by United States mail, delivery by a nationally
recognized overnight courier service or by personal delivery. Mailed notices
shall be sent by United States certified or registered mail, postage prepaid and
shall be deemed to have been given upon receipt by the addressee or upon refusal
by the addressee to accept delivery. Notice by nationally recognized overnight
commercial courier service shall be deemed given upon receipt by the addressee
or upon refusal by the addressee to accept delivery thereof. Notice by personal
delivery shall be deemed given upon personal delivery.
21. QUIET POSSESSION. So long as Tenant shall observe and perform the
covenants and agreements binding on it hereunder, Tenant shall at all times
during the Term herein granted and subject to the provisions of this Lease
peacefully and quietly have and enjoy the possession of the Premises without any
encumbrance or hindrance by, from or through Landlord, its successors or
assigns.
22. REAL ESTATE BROKER. Tenant represents that it has not dealt with any
real estate broker except for that broker listed, if any, in Item 11 in the
Schedule, with respect to this Lease and, to its knowledge no other broker
initiated or participated in the negotiation of this Lease, submitted or showed
the Premises to Tenant or is entitled to any commission in connection with this
Lease. Landlord shall execute a brokerage agreement with the broker listed in
Item 11 in the Schedule, which agreement must be acceptable to Landlord and to
the broker listed in Item 11 in the Schedule.
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Tenant agrees to indemnify and hold Landlord harmless from all claims from any
other real estate broker for commission or fees in connection with this Lease.
23. CONDEMNATION. If all or any portion of the Project or Premises are
taken by eminent domain so that the Premises cannot be reasonably used by Tenant
for the purposes for which they are demised, then at the option of either party
this Lease may be terminated effective as of the date of the taking and all Rent
reserved hereunder shall be paid to the date of such taking. The entire award
for any total or partial taking shall be paid to and retained by Landlord. If
any condemnation proceeding shall be instituted in which it is sought to take or
damage any part of the Project, or if the grade of any street or alley adjacent
to the Project is changed by any competent authority and such change of grade
makes it necessary or desirable to remodel the Project to conform to the changed
grade, Landlord shall have the right to terminate this Lease upon not less than
ninety (90) days' notice prior to the date of termination designated in the
notice. No money or other consideration shall be payable by Landlord to Tenant
for said termination, and the Tenant shall have no right to share in the
condemnation award or in any judgment for damages caused by said eminent domain
proceeding. Notwithstanding the foregoing, Tenant shall have the right to pursue
any award attributable to a taking of any of Tenant's personal property or
equipment if the pursuit by Tenant of any such award does not interfere with
Landlord's condemnation award or its pursuit thereof.
24. SPRINKLERS. If the sprinkler system installed at the Project or any of
its appliances shall be damaged or injured or not in proper working order by
reason of any act or omission of Tenant, Tenant's agents, servants, employees,
licensees or invitees, Tenant shall forthwith restore the same to good working
condition at its own expense. Tenant shall not do or permit anything to be done
upon the Premises, or bring or keep anything thereon which is in violation of
rules, regulations and requirements of any state, municipal or other authority
having jurisdiction over the Building, and if the Board of Fire Underwriters or
Fire Insurance Exchange or any bureau, department or official of the state or
city government, requires that any changes, modifications, alterations or
additional sprinkler heads or other equipment be made or supplied by reason of
Tenant's business or acts or the location of partitions, trade fixtures, or
other contents of the Premises, or if any such changes, modifications,
alterations, additional sprinkler heads or other equipment, become necessary
other than as a result of the Tenant Improvement Work performed pursuant to
Appendix D to prevent the imposition of a penalty or charge against the full
allowance for a sprinkler system in the fire insurance rate as fixed by said
Exchange, or by any fire insurance company, Tenant shall, at Tenant's expense,
promptly make and supply such changes, modifications, alterations, additional
sprinkler heads or other equipment.
25. MISCELLANEOUS.
A. Covenants Binding on Successors. Subject to the terms and provisions
-------------------------------
of Section 14 of this Lease, each provision of this Lease shall extend to and
shall, as the case may require, bind and inure to the benefit of Landlord and
Tenant and their respective heirs, legal representatives and successors and
assigns.
B. Date Payments Are Due. All amounts owed to Landlord hereunder, for
---------------------
which the date of payment is not expressly fixed herein, shall be paid within
thirty (30) days from the date Landlord renders statements of account therefor
and shall bear interest at the rate provided in Section 2E(3) from the date due
until paid.
C. Meaning of "Re-entry" and "Landlord". The words "re-enter" and "re-
------------------------------------
entry" as used in this Lease are not restricted to their technical legal
meaning. The term "Landlord," as used in this Lease, means only the landlord
from time to time, and upon conveying or transferring its interest, such
conveying or transferring landlord shall be relieved from any further obligation
or liability pursuant to Section 13B(l), 13C, 15 and 17 of this Lease.
D. Time is of the Essence. Time is of the essence of this Lease and each
----------------------
and all of its provisions.
E. No Option. Submission of this instrument for examination or signature
---------
by Tenant does not constitute a reservation of or option for lease, and it is
not effective as a lease or otherwise until execution and delivery by both
Landlord and Tenant.
F. Severability. The invalidity or unenforceability of any provision
------------
hereof shall not affect or impair any other provisions.
G. Governing Laws. This Lease shall be governed by and construed
--------------
pursuant to the laws of the State of Wisconsin.
H. Lease Modification. Should any mortgagee require a modification of
------------------
this Lease, which modification will not bring about any increased cost or
expense to Tenant or in any other way substantially change the rights and
obligations of Tenant hereunder, Tenant agrees that this Lease may be so
modified.
I. No Oral Modification. No subsequent alteration, amendment, change or
--------------------
addition to this Lease shall be binding upon Landlord or Tenant unless in
writing signed by both parties.
J. Litigation and Arbitration Costs. In the event of any litigation or
--------------------------------
arbitration between the parties hereto with respect to the enforcement or
interpretation of this Lease, the nonprevailing party shall pay the attorney's
fees, court costs and other costs of the prevailing party, provided that Tenant
shall notify Landlord of any alleged breach of Landlord's obligations under this
Lease and shall take no action with respect to such breach as long as Landlord
promptly commences to cure and diligently proceeds to complete the cure of
said breach within thirty (30) days after written notice thereof by Tenant or,
with respect to a default which cannot reasonably be cured within thirty (30)
days, if Landlord immediately commences to cure and diligently proceeds to
complete the cure of such default within a reasonable time period, which shall
in no event extend beyond ninety (90) days after Landlord receives written
notice of such default. Each party hereto shall pay the attorney's fees, court
costs (if any) and other costs incurred by the other party
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in any litigation, negotiation or transaction in which such party causes the
other party, without the other party's fault, to become involved or concerned
(including, without limitation, any request for Landlord's consent to a sublet
or assignment).
K. Captions. The marginal headings and titles to the paragraphs of this
--------
Lease are not a part of this Lease and shall have no effect upon the
construction or interpretation of any part hereof.
L. Remedies and Rights may be Exercised by Landlord in its Own Name;
----------------------------------------------------------------
Authority to Execute this Lease. All rights and remedies of Landlord under this
-------------------------------
Lease, or that may be provided by law, may be exercised by Landlord in its own
name individually, or in its name by any agent thereof, and all legal
proceedings for the enforcement of any such rights or remedies, may be commenced
and prosecuted to final judgment and executed by Landlord in its own name
individually or in its name by any agent thereof. Landlord and Tenant each
represents to the other that each has full power and authority to execute this
Lease and to make and perform the agreements herein contained.
M. Payments to Affiliates. Nothing in this Lease shall be construed to
----------------------
prevent Landlord from paying for services rendered or materials delivered with
respect to the Project or to the Premises (including, without limitation,
management services and contracting out capital improvements or other capital
repairs or construction items) by affiliates of Landlord provided that the fees
or costs of such services and materials are at market rates in the Milwaukee
metropolitan area. All such fees or costs paid by Landlord to such affiliates
shall be deemed to constitute Operating Costs on the same terms and conditions
as if such fees and costs were paid to non-affiliates of Landlord.
N. Entire Agreement. This Lease (including, without limitation, any Rider
----------------
attached hereto and Appendix A through E, all of which are incorporated herein
by this reference) constitutes the entire agreement between the Landlord and the
Tenant. Tenant acknowledges that it has not been induced to enter this Lease by
any promises, assurances, agreements, statements or representations
(collectively "Representations") which are not set forth in this Lease
(including without limitation any Representations concerning Operating Costs or
Taxes). Tenant acknowledges that it has not relied on any such Representations,
agrees that no such Representations shall be used in the construction or
interpretation of this Lease and agrees that Landlord shall have no liability
for any consequences arising as a result of any such Representations.
O. Landlord's Title. Landlord's title is and always shall be paramount to
----------------
the interest of Tenant, and nothing herein contained shall empower Tenant to do
any act which can, shall or may encumber Landlord's title.
P. Light and Air Rights. This Lease does not grant any rights to light or
--------------------
air over or about the Project. Landlord specifically excepts and reserves to
itself the use of any roofs, the exterior portions of the Premises, all rights
to and the land and improvements below the improved floor level of the Premises,
the improvements and air rights above the Premises and the improvements and air
rights located outside the demising walls of the Premises, and such areas within
the Premises as are required for installation of utility lines and other
installations required to serve any occupants of the Building and the right to
maintain and repair the same, and no rights with respect thereto are conferred
upon Tenant unless otherwise specifically provided herein.
Q. Rights Reserved or Granted. Any rights reserved or granted to Landlord
--------------------------
hereunder may be exercised by Landlord or any of its agents, employees,
contractors or designees.
R. Meanings of Words. The words "Landlord" and "Tenant" whenever used in
-----------------
this Lease shall be construed to mean the plural where necessary, and the
necessary grammatical changes required to make the provisions hereof apply
either to entities or individuals, or men or women, shall in all cases be
assumed as though in each case fully expressed.
S. Rent not Based on Income. It is agreed by Landlord and Tenant that no
------------------------
rental or other payment for the use, occupancy of utilization of the Premises
demised hereunder shall be, or is, based in whole or in part on the net income
or profits derived by any person from the Building or the Premises so leased,
used, occupied, or utilized, and Tenant further agrees that it will not enter
into any sublease, license, concession or other agreements for any use,
occupancy or utilization of the Premises which provides for a rental or other
payment for such use, occupancy or utilization based in whole or in part on the
net income or profits derived by any person from the Premises so leased, used,
occupied or utilized.
T. Non-Exclusivity. Tenant is not granted by this Lease and shall not be
---------------
entitled to have any exclusive rights in the Building other than the rights of
its occupancy.
26. UNRELATED BUSINESS INCOME.
A. Landlord shall have the right at any time and from time to time to
unilaterally amend the provisions of this Lease, if Landlord is advised by its
counsel that all or any portion of the monies paid by Tenant to Landlord
hereunder are, or may be deemed to be, unrelated business income within the
meaning of the United States Internal Revenue Code or regulations issued
thereunder, and Tenant agrees that it will execute all documents or instruments
necessary to effect such amendment or amendments, provided that no such
amendment shall result in Tenant having to pay in the aggregate more money on
account of its occupancy of the Premises under the terms of this Lease, as so
amended, and provided further than no such amendment shall result in Tenant
receiving less services than it is presently entitled to receive under this
Lease, or services of a lesser quality and provided further that no such
amendment shall materially interfere with any of Tenant's rights or benefits
under this Lease or Landlord's obligations under this Lease.
-20-
B. Any services which Landlord is required to furnish pursuant to the
provisions of this Lease may, at Landlord's option, be furnished from time to
time, in whole or in part, by employees of Landlord or the managing agent of the
Project or its employees or by one or more third persons hired by Landlord or
the managing agent of the Project. Tenant agrees that upon Landlord's written
request it will enter into direct agreements with the managing agent of the
Project or other parties designated by Landlord for the furnishing of any such
services required to be furnished by Landlord hereunder, in form and content
approved by Landlord, provided however that no such contract shall result in
Tenant having to pay in the aggregate more money on account of its occupancy of
the Premises under the terms of this Lease, and provided further that no such
contract shall result in Tenant receiving less services than it is presently
entitled to receive under this Lease, or services of a lesser quality.
27. EXCULPATORY PROVISIONS. It is expressly understood and agreed by and
between the parties hereto, anything herein to the contrary notwithstanding,
that each and all of the representations, warranties, covenants, undertakings
and agreements herein made on the part of any Landlord while in form purporting
to be the representations, warranties, covenants, undertakings and agreements of
such Landlord are nevertheless each and every one of them made and intended, not
as personal representations, warranties, covenants, undertakings and agreements
by such Landlord, or for the purpose or with the intention of binding such
Landlord personally, but are made and intended for the purpose only of
subjecting such Landlord's interest in the Premises and the Project to the terms
of this Lease and for no other purpose whatsoever, and in case of default
hereunder by such Landlord (or default through, under or by any of the agents,
servants, employees or representatives of such Landlord), Tenant shall look
solely to the interests of such Landlord in the Premises and the Project; that
no Landlord shall have any personal liability to pay any indebtedness accruing
hereunder or to perform any covenant, either express or implied, herein
contained; that no personal liability or personal responsibility of any sort is
assumed by, nor shall at any time be asserted or enforceable against, any
Landlord on account of this Lease or on account of any representation, warranty,
covenant, undertaking or agreement of Landlord in this Lease contained, either
express or implied, all such personal liability, if any, being expressly waived
and released by Tenant and by all persons claiming by, through or under Tenant;
and that as to any partnership which is a Landlord a deficit capital account of
any partner of such partnership shall not be deemed to be an asset or property
of such partnership.
28. AUTHORITY. Tenant is a [corporation] duly organized, validly existing
and in good standing under the laws of the State of Wisconsin and has the power
and authority to consummate this Lease. All proceedings of Tenant necessary to
consummate this Lease have been duly taken in accordance with law. The persons
executing this Lease on behalf of the Tenant have been duly authorized to
execute this Lease, and if the Tenant is a corporation, this Lease has been
executed by two duly authorized officers of such corporation.
29. OPTION TO EXTEND. Subject to the terms and conditions of this
paragraph, the Term of this Lease may be extended, at the option of Tenant, for
one additional period of four (4) years (the "Extension Term"). The Extension
Term shall be upon the same terms, covenants and conditions contained in this
Lease except for the amount of Base Rent payable during the Extension Term, and
any reference in the Lease to the "Term" of the Lease shall be deemed to include
the Extension Term and apply thereto, unless it is expressly provided otherwise.
Tenant shall have no extension option beyond the aforesaid four (4) year
extension option. Any termination of this Lease during the initial Term of this
Lease shall terminate all rights under this Paragraph 29.
A. The option to extend the term of this Lease shall apply only to the
Premises (including any space which has been included in the Premises as a
result of the terms and conditions of Section 30 of this Lease).
B. The Base Rent due during the Extension Term for any space then
constituting a portion of the Premises shall be at a rate equal to the greater
of (i) the amount of Base Rent due for the period immediately preceding the
Extension Term, or (ii) the Market Rent. The term "Market Rent" shall mean the
rental rate and applicable adjustments (as reasonably determined by Landlord)
for new leases or lease renewals of comparably located and finished space, of a
size similar to the Premises, in the Milwaukee, Wisconsin area, for buildings of
similar age and quality to the Building, including inducements and allowances.
Tenant's obligation to pay Operating Costs and Taxes pursuant to the Lease shall
continue during the Extension Term.
C. Such option to extend shall be exercised by Tenant delivering an initial
non-binding written notice to Landlord of its intent to exercise its option to
extend on or before twelve (12) full calendar months prior to the expiration of
the initial Term of this Lease. Thereafter and no later than eleven (11) full-
calendar months prior to the expiration of the initial Term of this Lease,
Landlord shall calculate the Market Rent for the Premises, which calculation
shall reflect the Market Rent that would be payable per annum for a term
commencing on the first day of the Extension Term. If the Market Rent as
calculated by Landlord is not acceptable to Tenant, then Landlord and Tenant
shall each select an appraiser and each of the appraisers so selected shall
establish a Market Rent for the Premises. If the two appraisals are within five
percent (5%) of each other, then the arithmetic average of the two appraisals
shall be the Market Rent. If the two appraisals are not within five percent (5%)
of each other, then each appraiser shall select a third appraiser who will
establish the Market Rent and the arithmetic average of the two closest
appraisals shall be the Market Rent. Tenant shall give Landlord final binding
written notice of the exercise of its option to extend, if at all, no later than
nine (9) full calendar months prior to the expiration of the initial Term of
this Lease.
D. Tenant's right to exercise its option to extend this Lease is subject to
the following conditions: (i) that on the date Tenant delivers its final binding
written notice of its election to exercise its option to extend, Tenant is not
in default beyond any applicable grace period under any of the terms, covenants
or conditions of the Lease, and (ii) except for an assignment or sublet
permitted pursuant to Section 14 of this Lease, that Tenant shall not have
assigned the Lease or sublet the Premises at any time during the period
commencing with the date that Tenant delivers its final binding notice to
Landlord of its exercise of such option to extend and ending on the commencement
date of the Extension Term, or at any time prior to such period, if such
assignment or sublease extends into such period.
E. If Tenant fails to give its initial non-binding written notice of intent
or its final written notice of intent to exercise its option to extend when due
as provided in this Paragraph 29, Tenant will be deemed to have waived such
option to extend.
30. RIGHT OF FIRST REFUSAL. Subject to Paragraph 30.B.below, and subject
to any renewal or extension options of any current tenant or tenants in the
Project (hereinafter collectively referred to as the "Prior Tenants"), for the
period commencing with the Commencement Date and ending on October 1, 1995,
Tenant shall have and is hereby granted a right of first refusal with respect to
any space located on the twelfth floor of the Building (the "Refusal Space"),
which right shall be exercised in accordance with the procedures set forth in
Paragraph 30.A.below. Such right shall not apply to any extensions of any lease
with any Prior Tenants or with any future tenant of any space on which Tenant
did not exercise its right of first refusal.
A. If Landlord shall enter into serious negotiations with a prospective
tenant to lease all or any portion of the Refusal Space and shall offer to lease
such space to such prospective tenant on specified terms and conditions,
Landlord shall give written notice thereof to Tenant ("Landlord's ROFR Notice"),
which notice shall have attached thereto the location of the portion of the
Refusal Space (the "Subject Refusal Space"). If Tenant shall elect to exercise
its right of first refusal, it shall notify Landlord of its election in writing
within ten (10) business days after Landlord's ROFR Notice is given, provided
that Tenant must exercise its right as to all or none of the Subject Refusal
Space. If Tenant shall not exercise its right of first refusal, Tenant shall
have no further rights with respect to that portion of the Refusal Space covered
by the proposed Lease that was the subject of Landlord's ROFR Notice, and
Landlord shall have the right to lease the Subject Refusal Space to the tenant
who was the subject of Landlord's ROFR Notice.
If Landlord does not lease the space to the tenant who was the subject of
Landlord's ROFR Notice and if Landlord shall enter into serious negotiations
with a prospective tenant other than such tenant, then Tenant's right of first
refusal with respect to any space offered shall continue in full force and
effect.
If Tenant exercises its right of first refusal with respect to such Subject
Refusal Space, such space shall be subject to the terms and conditions of this
Lease for the remaining term of the Lease (including any extension term if
Tenant has exercised its rights under Section 29). Base Rent with respect to the
Subject Refusal Space shall be equal to the Base Rent for the Premises initially
demised hereunder. In the event Tenant uses or occupies any portion of the
Subject Refusal Space on or before March 1, 1996, Tenant shall pay Operating
Cost Share Rent and Tax Share Rent in connection with that portion of the
Subject Refusal Space occupied prior to March 1, 1996.
If Tenant exercises its right of first refusal with respect to the Subject
Refusal Space, then the Subject Refusal Space shall be added to the Premises for
all purposes of this Lease effective on the earlier to occur of: (i) the date of
Substantial Completion of the Tenant Improvement Work, if Landlord agrees to
perform any Tenant Improvement Work at the Premises, (ii) the date Tenant takes
occupancy of the Subject Refusal Space. or (iii) sixty days following the date
Tenant exercises its right of first refusal with respect to the Subject Refusal
Space.
Landlord agrees to complete and install any Tenant Improvement Work
requested by Tenant pursuant to the terms and conditions of a Tenant Improvement
Work Agreement in form and content substantially similar to Appendix D to this
Lease, except that Landlord's Contribution for the Subject Refusal Space shall
be an amount equal to the product obtained by multiplying twelve dollars
($12.00), times the number of Net Rentable Square Feet in the Subject Refusal
Space.
B. Tenant's right to exercise its right of first refusal with respect to
the Subject Refusal Space pursuant to this Paragraph 30 is subject to the
following conditions: (i) that on the date that Tenant delivers its binding
written notice of its election to exercise its right of first refusal with
respect to such portion of the Subject Refusal Space, Tenant is not in default
under any of the terms, covenants or conditions of this Lease beyond any
applicable grace periods; and (ii) the Tenant shall not have assigned the Lease
or sublet any portion of the Premises at any time during the period commencing
with the date that Tenant delivers its written notice to Landlord of its
exercise of its right of first refusal and any other date on which such Subject
Refusal Space is available to be added to the Premises, or at any time prior to
such period, if such assignment or sublease extends into such period.
C. Promptly after Tenant's exercise of its right of first refusal pursuant
to this Xxxxxxxxx 00, Xxxxxxxx shall prepare an amendment to the Lease to
reflect changes in the size of the Premises, Base Rent, Tenant's Proportionate
Share and any other appropriate terms due to the addition of the Subject Refusal
Space. Tenant shall execute and return such amendment to the Lease within
fifteen (15) days after its submission to Tenant.
D. This right of first refusal is personal to Tenant and in the event
Tenant assigns this Lease or sublets all or any portion of the Premises, then
the terms and conditions of this Paragraph 30 shall be void and of no further
force and effect.
E. Notwithstanding anything to the contrary contained in this Paragraph 30,
this right of first refusal is subordinate and subject to a right of first
refusal granted to another tenant (the "Right of First Refusal Tenant") with
respect to the twelfth floor space. Tenant shall have no rights under this
Paragraph 30 and Landlord shall have no obligation under this Paragraph 30
unless and until the Right of First Refusal Tenant has waived in writing its
right to lease space on the twelfth floor each and every time space on the
twelfth floor becomes available to be leased. In the event of a conflict between
this right of first refusal and any right given to the Right of First Refusal
Tenant with respect to the twelfth floor, the rights given to the Right of First
Refusal Tenant shall control.
31. PARKING. Tenant shall be permitted to use two hundred seventy (270)
undesignated vehicular parking spaces in the parking lot associated with the
Building of which one hundred eight (108) shall be located in the covered lot,
during the initial term or any extended term as provided herein, at no
additional charge. However, if vehicular parking becomes problematic at the
Building and Landlord fails or is unable to provide, or Tenant is not permitted
to use, a portion of the parking spaces to which it is entitled hereunder, then
upon sixty (60) days prior written notice from Landlord, Tenant shall be
required to reduce its parking in the Building's covered and uncovered parking
lots to an appropriate level as required by Landlord in said notice. At a
minimum, Tenant shall be permitted to use one hundred seventy-one (171)
undesignated vehicular parking spaces in the parking lot associated with the
Building of which sixty-nine (69) shall be located in the covered lot during the
initial term or any extended term as provided herein, at no additional charge.
32. CODE VIOLATIONS. The Property Manager in charge of the Project has not
received any notice of any violation by the Project of any law, rule, regulation
or ordinance.
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IN WITNESS WHEREOF, the parties have executed this Lease on the date first
above written.
LANDLORD:
TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA, a New
York corporation
By: /s/ Xxxx X. Xxxx
------------------------------
Print Name: XXXX X. XXXX
----------------------
Title: ASST. SECRETARY
---------------------------
Attest: __________________________
Print Name: ______________________
Title: ___________________________
TENANT:
M&I DATA SERVICES, A DIVISION OF
XXXXXXXX & XXXXXX CORPORATION
__________________________________
By: /s/ Xxx Xxxxxxxxxxx
------------------------------
Print Name: XXX XXXXXXXXXXX
----------------------
Title: Facilities Manager
---------------------------
Attest: /s/ Xxxx Xxxx
--------------------------
Print Name: XXXX XXXX
----------------------
Title: ASST. VP
---------------------------
-00-
Xxx. 10.20(a)
APPENDICES
Appendix A Plan of Premises
Appendix B Cleaning Schedule
Appendix C Rules and Regulations
Appendix D Tenant Improvement Work Agreement
Appendix E Mortgages Currently Affecting the Project
Appendix F Power and Heatload Requirements
Appendix G Space Specifications
The above appendices to this exhibit have been omitted. The appendices will be
furnished supplementally to the Securities and Exchange Commission upon request.
