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EXHIBIT 10.10
WEST ALLIS CENTER
OFFICE LEASE
This Lease is made as of this 24th day of May, 1996, by and between
Whitnall Summit Company, LLC (hereinafter called "LESSOR") and Merge
Technologies (hereinafter called "LESSEE").
ARTICLE I
BASIC LEASE PROVISIONS
A. ADDRESS OF LEASED PREMISES: Suite S107B, 0000 Xxxxx 00xx Xxxxxx, Xxxx
Xxxxx, Xxxxxxxxx 00000.
B. TERM: 8 years, 0 months, 0 days, commencing September 1,
1996, and ending August 31, 2004 .
1st Floor Mezz Total
--------- ---- -----
C. AREA: Usable Area 5610 6775 12.385 square feet
Allotted Common Area 673 812 1.485 square feet
Total Area 6283 7587 13.870 square feet
D. BASE MONTHLY RENT: Thirteen Thousand, Seven and 60/100
___ dollars ($13,007.60).
E. SECURITY DEPOSIT: Thirteen Thousand, Seven and 60/100
___ dollars ($13,007.60). $13,007.60 Security Deposit Required
1,037.00 Security Deposit Paid Previously
----------
$11,970.60 Security Deposit Due
F. ADDRESS FOR NOTICES AND PAYMENTS:
LESSOR: Whitnall Summit Company, LLC
West Allis Center
0000 Xxxxx 00 Xxxxxx
Xxxx Xxxxx, Xxxxxxxxx 00000-0000
LESSEE: Merge Technologies
Suite S107B
0000 Xxxxx 00xx Xxxxxx
Xxxx Xxxxx, Xxxxxxxxx 00000
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ARTICLE II
LEASED PREMISES
2.1 LESSOR hereby leases to LESSEE and LESSEE leases from LESSOR for the term,
at the rental, and upon all of the conditions set forth herein that certain
real property situated in the City of West Allis, Milwaukee County,
Wisconsin which is located at the address specified in Item A of ARTICLE I
hereto and which is more particularly shown outlined in red on the floor
plan(s) attached hereto as Exhibit A. Said property is hereinafter referred
to as the "LEASED PREMISES."
ARTICLE III
BASE RENT
3.1 In consideration of the aforesaid leasing, LESSEE hereby agrees to pay to
LESSOR, at the address stipulated in Item F of ARTICLE I hereto, or at such
other address as LESSOR may from time to time designate by written notice
to LESSEE, the monthly rent called for in Item D of ARTICLE I hereto. Said
monthly rent (hereinafter called the "BASE MONTHLY RENT") shall be payable
without demand and in advance, on the first day of each month during the
term of this Lease. The BASE MONTHLY Rent payable throughout each year
during the term of this Lease, subsequent to the first year of the lease
term, shall be adjusted in accordance with the terms of ARTICLE IV herein.
Rent for any partial month during the term of this Lease shall be prorated
on a per diem basis.
ARTICLE IV
RENT ESCALATIONS
4.1 The BASE MONTHLY RENT shall be escalated as of the first annual anniversary
date of the commencement of this Lease, and on each annual anniversary date
thereafter. The escalated rent shall be determined by increasing the BASE
MONTHLY RENT by the percentage increase, if any, in the "Consumer Price
Index." The base month for determining the increase in the Consumer Price
Index shall be the month two months prior to that in which the term of this
Lease commences. The comparison month shall be the month two months prior
to each annual anniversary date.
4.2 As used herein, the "Consumer Price Index" shall mean the "All Items" index
in the "Consumer Price Index for all Urban Consumers: U.S. City average by
expenditure category and commodity or service group (1982-84 = 100)," as
published by the U.S. Department of labor, Bureau of Labor Statistics.
4.3 Should the Consumer Price Index specified herein cease to be published, the
LESSOR shall, at its sole discretion, choose a reasonable substitute index.
4.4 Notwithstanding anything to the contrary contained herein, in no event
shall the monthly rent payable in any lease year during the term of this
Lease be less than the amount payable during the preceding lease year.
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ARTICLE V
RENT TAX
5.1 LESSEE shall also pay to LESSOR monthly as additional rent without demand
any rent tax, sales tax or other tax (other than LESSOR's income tax) which
may be levied by any authorized governmental authority against the BASE
MONTHLY RENT or any additional rent payable to LESSOR under this Lease.
ARTICLE VI
LATE CHARGES
6.1 LESSEE hereby acknowledges that the late payment of rent will cause LESSOR
to incur costs not contemplated by this Lease, the exact amount of which
will be extremely difficult to ascertain. Such costs may include processing
and accounting charges, and late charges which may be imposed on delayed
mortgage payments.
6.2 Accordingly, if any installment of rent or other payment due LESSOR is not
received by LESSOR within ten (10) days of its due date then, without any
requirement for notice to LESSEE, LESSEE shall pay to LESSOR a late charge
equal to six percent (6%) of such overdue amount. The parties hereto agree
that said late charge is a fair reimbursement to LESSOR of the costs it
will incur as a result of said late payment.
6.3 Acceptance of a late charge by LESSOR shall not be deemed a waiver of
LESSEE's default with respect to such overdue amount, nor shall it prevent
LESSOR from exercising any of the other rights and remedies granted
hereunder.
ARTICLE VII
SERVICES AND OTHER ITEMS INCLUDED IN RENT
7.1 Except as may otherwise be provided hereunder, LESSOR shall provide the
following services and pay for the following expenses which are included in
the BASE MONTHLY RENT (as such rent may, from time to time, be escalated in
accordance with the terms hereof):
A. Real property taxes, special assessments, and building insurance costs
associated with the building and underlying land areas of which the
LEASED PREMISES is a part.
X. XXXXXX'x liability insurance costs with respect to the property of which
the LEASED PREMISES is a part.
C. Cost incurred by LESSOR in managing, advertising, promoting, and leasing
the building of which the LEASED PREMISES is a part.
D. Legal expenses incurred by LESSOR as a result of its ownership of the
LEASED PREMISES, except as otherwise provided in this Lease.
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E. Any mortgage payments or other financing costs incurred by LESSOR.
F. The costs incurred by LESSOR in providing the following services:
I) Daily janitorial services Monday through Friday, legal holidays
excepted, in and about the LEASED PREMISES. This shall include all
normal cleaning and upkeep services; normal daily removal of trash
and rubbish; the periodic vacuuming of carpeting, dusting of
uncluttered furniture, cleaning and waxing of uncarpeted floors, and
washing of both sides of the building's exterior windows; maintenance
of towels, tissue and other restroom supplies; daily cleaning of
restroom floors and fixtures; and such other work as is customarily
performed as janitorial services in office complexes leasing at
similar per square foot annual rents in the Milwaukee, Wisconsin,
metropolitan area.
ii) Electricity for standard building lighting fixtures and for normal
incidental office use. In the event that LESSEE installs machinery,
computers, equipment or other devices requiring electrical energy in
excess of the foregoing, LESSEE shall pay to LESSOR an amount equal
to LESSOR's reasonable estimate of its increased costs occasioned
thereby, or such usage will be sub-metered, and LESSEE shall pay for
actual usage, whichever method is mutually agreeable.
iii) Heat and air conditioning when necessary for normal comfort (in
LESSOR's reasonable judgement) from 7:00 A.M. to 6:00 P.M. weekdays,
legal holidays excepted, and from 8:00 A.M. to 1:00 P.M. Saturdays.
iv) Hot and cold running water from the regular building outlets for
lavatories, restrooms, and for drinking purposes.
v) Sewer service to the extent required for LESSEE's use of the LEASED
PREMISES for ordinary office purposes.
vi) Passenger elevator service in common with other tenants to be
provided by operator-less automatic elevators. LESSOR reserves the
right to reasonably stipulate which elevators LESSEE may utilize for
passenger service. LESSOR may further stipulate which elevators may
be used for freight purposes and may restrict the hours during which
said elevators may be so used.
vii) Permits which will provide the use of non-reserved employee parking
spaces, not to exceed one permit for every 300 square feet of "Usable
Area within the LEASED PREMISES. LESSOR shall keep and maintain the
parking lots and all driveways leading thereto in good condition and
repair, and free from any unreasonable accumulation of snow.
viii) Maintenance of the roof, building exterior, structural system, the
plumbing and electrical systems exterior to the LEASED PREMISES, the
HVAC system both interior and exterior to the LEASED PREMISES, and
the common areas of the
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building of which the LEASED PREMISES are a part in a good, clean,
operable and orderly condition.
ix) Guard service or security in or about the building which contains the
LEASED PREMISES, provided however that the LESSOR may, at its sole
discretion, eliminate either or both of these services at any time
without obligation and with no reduction in the rent payable by
LESSEE hereunder.
x) Conference rooms for the use, from time to time on a first come,
first served advance registration basis, by LESSEE. Notwithstanding
the foregoing, LESSOR reserves the right to charge LESSEE for any
extraordinary cleaning costs resulting from LESSEE's use of such
conference rooms, or for any damages resulting from such use.
Further, LESSOR reserves the right to restrict the LESSEE's use of
such rooms, should said use by LESSEE become excessive in the
reasonable opinion of LESSOR.
7.2. No interruption in, or temporary stoppage of, any of the aforesaid
services caused by repairs, renewals, improvements, alterations, normal
breakdowns, strikes, lockouts, labor controversy, accidents, fire,
inability to obtain fuel or supplies, or other causes beyond the reasonable
control of LESSOR shall be deemed an eviction or disturbance of LESSEE's
use and possession, or render LESSOR liable for damages, by abatement of
rent or otherwise or relieve LESSEE from any obligation set forth herein.
ARTICLE VIII
OPTIONAL SERVICES NOT INCLUDED IN RENT
8.1 The LESSOR intends, but does not guarantee, to provide certain optional
services to LESSEE. The LESSEE shall be charged only for its actual use of
these services, which use shall be at LESSEE's sole option. These services
may include the use of:
A. LESSOR's Rolm telecommunications system.
ARTICLE IX
REPAIRS BY LESSEE
9.1 LESSEE shall, at its sole expense and at all times during the term of this
Lease, keep the LEASED PREMISES in good order, condition, and repair.
9.2 All electric lighting bulbs, tubes, ballasts, and starters shall be
replaced, when necessary, by LESSOR at the expense of LESSEE.
9.3 To the extent that LESSOR, its agents or employees, should do maintenance
for LESSEE which is the responsibility of LESSEE, or should pay bills
incurred by LESSEE, the charges therefore shall be due LESSOR, as
additional rent, within ten (10) days of the date on which LESSOR invoices
in writing for such charges.
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ARTICLE X
MODIFICATIONS AND ALTERATIONS TO THE LEASED PREMISES
10.1 No modifications or alterations to the LEASED PREMISES shall be allowed
without the prior written consent of LESSOR. LESSOR reserves the right to
require copies of working drawings and specifications for any
modifications or alterations, which working drawings and specifications
shall be prepared in a professional manner. LESSOR may also require the
posting of a bond by LESSEE in the amount of one and one-half (1-1/2)
times the cost of the modifications or alterations, as estimated by
LESSOR, guaranteeing payment for same.
10.2 LESSEE shall keep the LEASED PREMISES and other property of LESSOR free
from liens at all times, and shall promptly discharge any liens which are
placed against LESSOR's property as a result of LESSEE's actions.
ARTICLE XI
DESTRUCTION OR DAMAGE
11.1 If the building of which the LEASED PREMISES is a part is damaged or
destroyed to the extent that the cost to repair is, in the reasonable
estimate of LESSOR, 25% or less of the then replacement cost of said
building, LESSOR shall promptly repair said building. Should said damage
exceed 25% of the then replacement cost of said building, LESSOR may elect
to either promptly repair same or, by written notice to LESSEE given
within ten (10) days of the date of such damage or destruction, terminate
this Lease. If LESSOR elects to repair said building, this Lease shall
remain in full force and effect only if, in the reasonable opinion of
LESSOR, the repairs can be made within six (6) months following the date
of damage or destruction. If this Lease remains in full force and effect,
the rent on the LEASED PREMISES shall xxxxx to the extent that they are
not usable by LESSEE. Should this Lease be terminated by LESSOR, the rent
shall xxxxx from the date of damage or destruction.
ARTICLE XII
CONDEMNATION
12.1 If all of the LEASED PREMISES, or such portion thereof as will make the
LEASED PREMISES unusable for the purpose herein leased, be condemned by
any legally constituted authority for public use or purpose, then the term
of this Lease shall end on the date of taking, and the rent payable
hereunder shall be prorated to said date. Any compensation payable for
said taking shall be paid to LESSOR except for any portion thereof which
may be specifically awarded to LESSEE for its relocation costs.
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ARTICLE XIII
PROPERTY DAMAGE INSURANCE
13.1 LESSOR will obtain fire and extended coverage insurance on the building
and LESSOR's personalty contained therein. LESSEE will obtain insurance
coverage on all of its personalty, trade fixtures, or any leasehold
improvements which it may install on the LEASED PREMISES. LESSOR and
LESSEE hereby waive all rights or subrogation by any insurance company
issuing policies carried by either LESSOR or LESSEE with respect to the
LESSOR's building, fixtures, personal property or leasehold improvements
or to LESSEE's personal property, trade fixtures or leasehold
improvements.
13.2 If LESSEE does or permits anything to be done which increases the cost of
LESSOR's insurance on the building of which the LEASED PREMISES is a part,
the LESSEE shall, within ten (10) days of the posting of LESSOR's written
demand therefor, reimburse LESSOR for such increased premiums.
ARTICLE XIV
LIABILITY INSURANCE
14.1 LESSEE shall maintain a policy of public liability insurance in an amount
not less than one million dollars ($1,000,000) per occurrence throughout
the term of this Lease. A certificate indicating the existence of such
liability insurance and naming LESSOR as an additional insured shall be
furnished to LESSOR prior to the commencement date of this Lease. It shall
provide that said insurance policy shall not be canceled during the term
of this Lease without ten (10) days advance written notice to LESSOR.
14.2 The liability insurance coverage required herein shall insure performance
by LESSEE of the indemnity provisions contained in ARTICLE XV. The limits
of said insurance shall not, however, limit the liability of LESSEE
hereunder.
ARTICLE XV
INDEMNITY
15.1 LESSEE shall indemnify and hold LESSOR harmless from and against all
claims for injuries to persons or damages to property arising out of
LESSEE's use or occupancy of the LEASED PREMISES or areas appurtenant
thereto, except to the extent to which such injuries or damages result
from the negligence of LESSOR or his agents. Said indemnification shall
extend to all costs incurred by LESSOR in defending itself against such
claims, including attorney's fees and court costs.
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ARTICLE XVI
EXEMPTION OF LESSOR FROM LIABILITY
16.1 LESSEE hereby agrees that LESSOR shall not be liable for injury to LESSEE's
business or any loss of income therefrom or for damage to or the theft of
the goods, wares, merchandise or other property of LESSEE, LESSEE's
employees, invitees, customers, or any other person in or about the LEASED
PREMISES, nor shall LESSOR be liable for injury to the person of LESSEE,
LESSEE's employees, agents or contractors, whether such damage or injury is
caused by or results from fire, steam, electricity, gas, water or rain, or
from the breakage, leakage, obstruction or other defects of pipes,
sprinklers, wires, appliances, plumbing, air conditioning, lighting
fixtures, windows, or from any other cause, whether the said damage or
injury results from conditions arising upon the LEASED PREMISES or upon
other portions of the building of which the LEASED PREMISES are a part, or
from other sources or places and regardless of whether the cause of such
damage or injury or the means of repairing the same is inaccessible to
LESSEE. Notwithstanding the foregoing, the LESSOR shall be liable for
injuries or damages resulting from the negligence of LESSOR or its agents.
LESSOR shall not be liable for any damages arising from any act or neglect
of any other tenant, if any, of the building in which the LEASE PREMISES
are located.
ARTICLE XVII
USE
17.1 The LEASED PREMISES shall be used and occupied only for business office
purposes and for no other purpose.
ARTICLE XVIII
COMPLIANCE WITH LAWS AND RULES
18.1 LESSOR shall comply, at its sole expense, with all applicable statutes,
ordinances, rules, codes, regulations and orders which govern the use of
the building of which the LEASED PREMISES are a part for ordinary and usual
business office purposes.
18.2 LESSEE shall promptly comply, at its sole expense, with all applicable
statutes, ordinances, rules, codes, regulations and orders which apply to
the LESSEE's use of the LEASED PREMISES, to the extent that said use does
not constitute ordinary and usual business office purposes.
18.3 LESSEE shall promptly comply with all rules and regulations of LESSOR, the
current form of which is attached to this LEASE as Exhibit X. XXXXXX shall
have the right to amend or supplement the Rules and Regulations from time
to time provided the same do not discriminate against LESSEE and apply to
all tenants in general. LESSOR agrees to give LESSEE at least ten (10) days
notice of any changes to the Rules and Regulations.
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ARTICLE XIX
SECURITY DEPOSIT
19.1 LESSEE shall deposit with LESSOR upon execution hereof the security deposit
stipulated in ITEM E of ARTICLE I hereto, as security for LESSEE'S faithful
performance of its obligations hereunder If LESSEE fails to pay rent or
other charges due hereunder, or otherwise defaults with respect to
any provision of this Lease, LESSOR may use, apply or retain all or any
portion of said deposit for the payment of any rent or other charge in
default or for the payment of any other sum to which LESSOR may become
obligated by reason of LESSEE's default, or to compensate LESSOR for any
loss or damage which LESSOR may suffer thereby. IF LESSOR so uses or
applies all or any portion of said deposit, LESSEE shall within ten (10)
days after written demand therefore deposit cash with LESSOR in an amount
sufficient to restore said deposit to the full amount called for herein,
and LESSEE's failure to do so shall be a material breach of this Lease. If
LESSEE performs all of LESSEE's obligations hereunder, said deposit, or so
much thereof as has not been previously applied by LESSOR, shall be
returned, without payment of interest for its use, to LESSEE (or, at
LESSOR's option, to the last assigns, if any, of LESSEE's interest
hereunder) at the expiration of the term hereof, and after LESSEE has
vacated the LEASED PREMISES. The security deposit may be retained by
LESSOR with its general funds.
ARTICLE XX
RIGHTS RESERVED BY LESSOR
20.1 LESSOR reserves the following rights exercisable without notice and without
liability to LESSEE and without effecting an eviction, constructive or
actual, or disturbance of LESSEE's use or possession, or giving rise to any
claim for setoff or abatement of rent:
A. To control the design, installation, and location of any signs which
LESSEE may wish to place on or about the LEASED PREMISES, and to require
that tenant identification signage conform to a standard sign plan which
LESSOR may establish. In no event shall LESSEE utilize any signage which
is visible to the exterior of the building of which the LEASED PREMISES
is a part.
B. To retain at all times and to use in appropriate instances keys to all
doors within and into the LEASED PREMISES. No locks shall be changed
without the prior written consent of LESSOR.
C. To make repairs, alterations, additions, or improvements, whether
structural or otherwise, in and about the LEASED PREMISES, or any part
thereof, and for such purpose to enter upon the LEASED PREMISES, and
during the continuation of any said work, to temporarily close doors,
entryways, and corridors in the LEASED PREMISES and to interrupt or
temporarily suspend services and facilities. Unless warranted by an
emergency situation, such repairs or suspensions shall not unreasonably
interfere with LESSEE's ability to conduct its normal business
operations.
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X. XXXXXX may require that all persons who enter or leave the West Allis Center
(hereinafter called the "CENTER") identify themselves to guards by pass,
parking permit or otherwise, and LESSOR may take such other measures as it
deems reasonably necessary for the safety and security of the CENTER. Nothing
contained herein shall, however, make LESSOR responsible in any way for the
security of LESSEE, its employees, agents, or invitees, or any property
thereof LESSOR shall be under no obligation to maintain perimeter security or
guards at the CENTER.
E. To control or prohibit the storage of explosive or inflammable materials in
or about the LEASED PREMISES. LESSEE agrees to promptly cease and correct any
practice which constitutes a fire or safety hazard in the opinion of LESSOR,
LESSOR's property insurance underwriter or its authorized agents, or any
governmental authority responsible for building and/or fire code enforcement.
LESSEE agrees to make the LEASED PREMISES available for inspection by said
parties at all times. LESSEE shall not bring into the LEASED PREMISES or the
building of which it is a part gasoline, explosives, or other highly
flammable or volatile materials.
F. To control the storage or placement of heavy objects on all structural floors
within the LEASED PREMISES. LESSEE agrees not to exceed the load limitations
of any structural floors or elevators within the LEASED PREMISES.
G. To prohibit any advertising by LESSEE which in LESSOR's reasonable opinion
impairs the reputation or desirability of the CENTER as an industrial and
commercial center. Upon written notice from LESSOR of such objections, LESSEE
shall promptly discontinue such advertising. LESSEE agrees that it shall not
conduct any advertising or publicity campaign which will so impair the
reputation or desirability of the CENTER.
H. To enforce by eviction or other means that the LEASED PREMISES not be used
for lodging or for any immoral or illegal purpose.
I. To tow away or remove, at the expense of the owner, any vehicle or other
object which is improperly parked or stored, or placed in a drive, fire
lane, or no parking zone. All vehicles shall be parked at the sole risk of
the owner, and LESSOR assumes no responsibility for any damage to or loss of
vehicles.
J. To designate, limit, restrict, control and modify any service in or to the
building of which the LEASED PREMISES is a part, and any common areas
relating to such building, provided that LESSOR shall enforce its rights
hereunder uniformly on LESSEE and all other tenants.
K. To enforce by eviction; by the termination of heat, electric, or water
service to the LEASED PREMISES; or other means, its requirement that LESSEE
not commit waste with respect to any utilities which are furnished by LESSOR.
All exterior doors and windows shall be kept closed during the heating and
air conditioning seasons, and water faucets and fountains should be turned
off when not in use.
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L. To enter the LEASED PREMISES at reasonable times for the purpose of
inspecting same, showing same to prospective purchasers, lenders,
lessees, insurance inspectors, or governmental authorities. LESSOR may,
during the last 90 days of the term hereof place on or about the LEASED
PREMISES any "For Lease" signs, all without rebate of rent or liability to
LESSEE.
M. To restrict or prohibit LESSEE's ability to conduct, either voluntarily or
involuntarily, any auction upon the LEASED PREMISES. LESSEE shall obtain
LESSOR's advance written consent prior to conducting any auction upon the
LEASED PREMISES.
N. To enforce such other reasonable rules and regulations which LESSOR or its
agent may, from time to time, adopt. Written notice of such rules and
regulations may be given to LESSEE at any time.
ARTICLE XXI
DEFAULT
21.1 Any of the following events shall constitute a default and breach of this
Lease by LESSEE:
A. The vacating or abandonment of the LEASED PREMISES by LESSEE during the
term of this Lease.
B. The failure of LESSEE to make any payment of rent or any other payment
required to be made by LESSEE hereunder, as and when due, where such
failure shall continue for a period of fifteen (15) days after written
notice thereof from LESSOR to LESSEE.
C. The failure by LESSEE to observe or perform any of the covenants,
conditions or provisions of this Lease to be observed or performed by
LESSEE, other than described in Paragraph 21.1B above, where such failure
shall continue for a period of thirty (30) days after written notice
thereof from LESSOR to LESSEE; provided, however, that if the nature of
LESSEE's default cannot be cured by the payment of money and is such that
more than thirty (30) days are reasonably required for its cure, then
LESSEE shall not be deemed to be in default if LESSEE commenced such cure
within said 30-day period and thereafter diligently proceeds to complete
such cure.
D. (1) The making by LESSEE of any general arrangement or assignment for the
benefit of creditors; (ii) LESSEE becomes a "debtor" as defined in 11
U.S.C. 101 or any successor statute thereto (unless, in the case of a
petition filed against LESSEE, the same is dismissed within sixty (60)
days; (iii) the appointment of a trustee or receiver to take possession
of substantially all of LESSEE's assets located at the LEASED PREMISES or
of LESSEE's interest in this Lease, where possession is not restored to
LESSEE within thirty (30) days; or (iv) the attachment, execution, or
other judicial seizure of substantially all of LESSEE's assets located at
the LEASED PREMISES or of LESSEE's interest in this Lease, where such
seizure is not discharged within thirty (30) days. Notwithstanding the
foregoing, should any provision of the Paragraph 21.1D be contrary to any
applicable law, such provision shall be of no force or effect.
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E. The discovery of LESSOR that any financial statement given to LESSOR by
LESSEE, any assignee of LESSEE, any subtenant of LESSEE, any successor
in interest of LESSEE or any guarantor of LESSEE's obligation hereunder,
and any of them was materially false.
21.2 In the event of any such default or breach by LESSEE, LESSOR may at any
time thereafter, with or without notice or demand and without limiting
LESSOR in the exercise of any right or remedy which LESSOR may have by
reason of such default or breach:
(i) Terminate LESSEE's right to possession of the LEASED PREMISES by any
lawful means, in which case this Lease shall terminate and LESSEE shall
immediately surrender possession of the LEASED PREMISES to LESSOR. In
such event, LESSOR shall be entitled to recover from LESSEE all damages
incurred by LESSOR by reason of LESSEE's default including, but not
limited to, the cost of recovering possession of the LEASED PREMISES;
expenses of reletting, including necessary renovation and alteration of
the LEASED PREMISES, reasonable attorney's fees, and any real estate
commission actually paid; and the worth at the time of award by the
court having jurisdiction thereof of the amount by which the unpaid rent
for the balance of the term after the time of such award exceeds the
amount of such rental loss for the same period that LESSEE proves could
be reasonably avoided.
(ii) Maintain LESSEE's right to possession in which case this Lease shall
continue in effect whether or not LESSEE shall have abandoned the LEASED
PREMISES. In such event, LESSOR shall be entitled to enforce all of
LESSOR's rights and remedies under this Lease, including the right to
recover the rent as it becomes due hereunder.
(iii) Pursue any other remedy now or hereafter available to LESSOR under the
laws or judicial decisions of the state wherein the LEASED PREMISES is
located. Unpaid installments of rent and other unpaid monetary
obligations of LESSEE under the terms of this Lease shall bear interest
from the date due at the maximum rate then allowable by law.
21.3 LESSOR shall not be in default unless LESSOR fails to perform obligations
required of LESSOR within a reasonable time, but in no event later than
thirty (30) days after written notice by LESSEE to LESSOR specifying
wherein LESSOR has failed to perform such obligation; provided, however,
that if the nature of LESSOR's obligation is such that more than thirty
(30) days are required for performance then LESSOR shall not be in
default if LESSOR commences performance within such thirty (30) day period
and thereafter diligently prosecutes the same to completion.
ARTICLE XXII
ASSIGNMENT AND SUBLETTING
22.1 LESSEE shall not assign, sublet, transfer or mortgage this lease, nor shall
any assignment occur by operation of law, without the LESSOR's advance
written consent.
22.2 Regardless of LESSOR's consent, no subletting or assignment shall release
LESSEE from its obligation to pay the rent or perform all the LESSEE's
other obligations under this Lease. The acceptance of rent by LESSOR from
any other person shall not be deemed to be a waiver by LESSOR of any
provision hereof. Consent to one assignment or subletting shall not be
deemed
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consent to any subsequent assignment or subletting. In the event of default
by any Assignee of LESSEE or successor of LESSEE, LESSOR may proceed
directly against LESSEE without the necessity of exhausting remedies
against said assignee.
ARTICLE XXII
ESTOPPEL CERTIFICATE
23.1 LESSEE shall, within ten (10) days of the date of LESSOR's written request,
execute and deliver to LESSOR a statement in writing (I) certifying that
the lease is unmodified and in full force and effect (or, if
modified, stating the nature of such modification and certifying that this
Lease, as so modified, is in full force and effect) and the date to which
the rent and other charges are paid in advance, if any, and (ii)
acknowledging that there are not, to LESSEE's knowledge, any uncured
defaults on the part of LESSOR hereunder, or specifying such defaults if
any are claimed.
ARTICLE XXIV
LESSOR'S LIABILITY
24.1 The term "LESSOR" as used herein shall mean only the owner or owners at the
time in question of the fee title or of LESSEE's interest in a ground lease
of the LEASED PREMISES, and in the event of any transfer of such title or
interest, LESSOR herein named, or any subsequent LESSOR who later transfers
the LEASED PREMISES shall be relieved from and after the date of such
transfer of all liability with respect to "LESSOR's" obligations thereafter
to be performed, providing that any prepaid rent, expenses, or security
deposit in the hands of the then LESSOR, shall be delivered to the grantee.
ARTICLE XXV
LESSOR'S RIGHT TO CONVEY
25.1 LESSOR reserves the right at all times to sell or convey all or part of the
property of which the LEASED PREMISES is a part. Such conveyance by LESSOR
shall in no way relieve LESSEE of its rights or obligations under this
Lease.
ARTICLE XXV
SEVERABILITY
26.1 The invalidity of any provision of this Lease as determined by a court of
competent jurisdiction, shall in no way affect the validity of any other
provision hereof.
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ARTICLE XXVII
TIME OF ESSENCE
27.1 Time is of the essence with respect to the payment of rent hereunder, and
with respect to all other terms and provisions of this Lease.
ARTICLE XXIX
INCORPORATION OF PRIOR AGREEMENTS: AMENDMENTS
29.1 This Lease contains all agreements of the parties hereto with respect to
any matter mentioned herein. No prior agreement or understanding between
LESSEE and any employee or agent of LESSOR with respect to any such matter
shall be effective.
ARTICLE XXX
NOTICE
30.1 Any notice required or permitted to be given hereunder shall be in writing
and shall be deemed given on the day immediately following the date same is
deposited in the U.S. mail, postage prepaid and registered or certified,
and addressed as provided under Item F of ARTICLE I hereto (or to such
other address as either party hereto may, from time to time, stipulate by
written notice to the other party).
ARTICLE XXXI
WAIVERS
31.1 No waiver by LESSOR of any provision of this Lease shall be deemed a waiver
of any other provision hereof or of any subsequent breach by LESSEE of the
same or any other provision. LESSOR's consent to, or approval of, any act
shall not be deemed to render unnecessary the obtaining of LESSOR's consent
to or approval of any subsequent act of LESSEE. The acceptance of rent
hereunder by LESSOR shall not be a waiver of any preceding breach by LESSEE
of any provision hereof, other than the failure of LESSEE to pay the
particular rent so accepted.
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ARTICLE XXXII
POSSESSION
32.1 Any occupancy of the LEASED PREMISES by LESSEE shall subject LESSEE to
all of the terms and conditions of the Lease, regardless of whether the
term of this Lease has yet commenced.
32.2 If LESSOR shall be unable to give possession of the LEASED PREMISES on
the date of the commencement of the term because of the refusal of a
previous tenant to vacate the LEASED PREMISES, because LESSOR's
remodeling of the LEASED PREMISES has not been sufficiently completed,
or for any other reason, LESSOR shall not be subject to any claims,
damages or liabilities for the failure to give possession on said date.
Under said circumstances, the rent reserved and covenant to pay same
shall not commence until the earlier of either the date on which
possession of the LEASED PREMISES is given to LESSEE, or the date on which
the LEASED PREMISES are available for occupancy by LESSEE, provided LESSOR
has given LESSEE three (3) day's advance written notice of their
availability. Failure to give possession on the date of commencement of
the term shall in no way affect the validity of this Lease or the
obligations of LESSEE hereunder, nor shall the same be construed in any
way to extend the expiration date of the term. Further, the commencement
date of the term of this Lease and LESSEE's obligation to pay rent
hereunder shall not be delayed due to LESSEE's failure to complete any
remodeling work which LESSEE may be responsible for.
32.3 By taking possession of the LEASED PREMISES, the LESSEE accepts it in its
then-existing condition provided, however, that LESSOR shall correct any
reasonable problems which LESSEE gives LESSOR notice of in writing within
seven (7) days following the date possession is taken.
ARTICLE XXXIII
SURRENDER OF PREMISES
33.1 On the last day of the term of this Lease, or on the sooner termination
thereof, LESSEE shall peaceably surrender the LEASED PREMISES in good
condition and repair, ordinary wear and tear excepted, consistent with
LESSEE's duty to make repairs as provided. On or before the last day of
the term of this Lease, or the sooner termination thereof, LESSEE shall,
at its expense, remove all of its trade fixtures, furniture, and
equipment from the LEASED PREMISES, and all property not removed shall be
deemed abandoned. LESSEE shall promptly reimburse LESSOR for any expenses
incurred by LESSOR with respect to removal or storage of abandoned
property and with respect to restoring the LEASED PREMISES to good order,
condition and repair. At the option of LESSOR, exercised by written notice
to LESSEE not later than twenty-one (21) days prior to the last day of the
term of this Lease or sooner termination thereof, any alterations,
additions and fixtures, other than LESSEE's trade fixtures and equipment,
which have been made or installed by LESSEE on the LEASED PREMISES in
connection with this Lease, shall be removed by LESSEE at its expense. If
such notice is not given by LESSOR, said alterations, additions and
fixtures shall remain the LESSOR's property, and shall be surrendered with
the LEASED PREMISES as a part thereof.
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33.2 If the LEASED PREMISES are not surrendered at the end of the lease term
or sooner termination thereof, the continued occupancy by LESSEE shall
be a tenancy from month to month, subject to all the terms and
provisions of this Lease excepting (I) rights of first refusal or renewal,
if any, granted hereunder, and (ii) that the monthly rent for each month
of occupancy following the expiration or sooner termination of this Lease
shall be two hundred percent (200%) of the BASE MONTHLY RENT for the
last full month of the term of this Lease. Further, LESSEE shall
indemnify LESSOR against any loss or liability resulting from delay by
LESSEE in surrendering the LEASED PREMISES including, without limitation,
claims made by succeeding tenants founded on such delay and any
attorney's fees resulting therefrom.
ARTICLE XXXIV
CUMULATIVE REMEDIES
34.1 No remedy or election hereunder shall be deemed exclusive but shall,
wherever possible, be cumulative with all other remedies at law or in
equity.
ARTICLE XXXV
BINDING EFFECT
35.1 Subject to any provisions hereof restricting assignment or subletting by
LESSEE, and subject to the provisions of ARTICLE XXIV hereof, this Lease
shall bind the parties hereto, their personal representatives,
successors and assigns.
ARTICLE XXXVI
CHOICE OF LAW
36.1 This Lease shall be governed by the laws of the state of Wisconsin.
ARTICLE XXXVII
SUBORDINATION
37.1 This Lease, at LESSOR's option, shall be subordinate to any ground lease,
mortgage, deed of trust, or any other hypothecation or security now or
hereafter placed upon the real property of which the LEASED PREMISES is
a part and to any and all advances made on the security hereof and to all
renewals, modifications, consolidations, replacements and extensions
thereof. Notwithstanding such subordination, LESSEE's right to quiet
possession of the LEASED PREMISES shall not be disturbed if LESSEE is not
in default and so long as LESSEE shall pay the rent and observe and
perform all of the provisions of this Lease, unless this Lease is
otherwise terminated pursuant to its terms. If any mortgagee, trustee or
ground lessor shall elect to have this Lease prior to the lien of its
mortgage, deed of trust or ground lease, and shall give written notice
thereof to LESSEE, this Lease shall be deemed prior to such mortgage, deed
of trust, or ground lease, whether this Lease is dated prior to subsequent
to the date of said mortgage, deed of trust or ground lease or the date of
recording thereof.
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37.2 LESSEE agrees to execute any documents required to effectuate an
attornment, a subordination or to make this Lease prior to the lien of
any mortgage, deed of trust or ground lease, as the case may be. LESSEE's
failure to execute such documents within 10 days after written demand
shall constitute a material default by LESSEE hereunder, or, at LESSOR's
option, LESSOR shall execute such documents on behalf of LESSEE as
LESSEE's attorney-in-fact. LESSEE does hereby make, constitute, and
irrevocably appoint LESSOR as LESSEE's attorney-in-fact and in LESSEE's
name, place and stead, to execute such documents in accordance with this
Paragraph 37.2.
ARTICLE XXXVIII
ATTORNEY'S FEES
38.1 If either party to this Lease brings an action to enforce the terms
hereof, the prevailing party in such action shall be entitled to the
prompt reimbursement of its reasonable attorney's fees from the losing
party.
ARTICLE XXXIX
QUIET POSSESSION
39.1 Upon LESSEE paying the rent for the LEASED PREMISES and observing and
performing all of the covenants, conditions and provisions on LESSEE's
part to be observed and performed hereunder, LESSEE shall have quiet
possession of the LEASED PREMISES for the entire term hereof subject to
all of the provisions of this LEASE.
ARTICLE XL
AUTHORITY
40.1 If LESSEE is a corporation, trust, or general or limited partnership,
each individual executing this Lease on behalf of such entity represents
and warrants that he or she is duly authorized to execute and deliver
this Lease on behalf of said entity. If LESSEE is a corporation, trust or
partnership, LESSEE shall, concurrent with its execution of this Lease,
deliver to LESSOR evidence of such authority satisfactory to LESSOR.
40.2 The individuals executing this Lease on behalf of LESSOR represent and
warrant to LESSEE that they are fully authorized and legally capable of
executing this Lease on behalf of LESSOR and that such execution is
binding upon all parties holding an ownership interest in the LEASED
PREMISES.
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ARTICLE XLI
ADDENDUM
41.1 Attached hereto is an addendum or addenda containing Article(s)
XLII, XLIII, XLIV, XLV and XLIV which constitute (s) a part of this Lease.
IN WITNESS WHEREOF, the parties have executed this Lease as of the day and
year first above written.
Whitnall Summit Company, LLC (LESSOR) Merge Technologies (LESSEE)
By: /S/ X.X. XXXXXXXXXXX By:/S/ XXXXXXX XXXXXXXXX
------------------------------------ ----------------------------------
Title: Vice President & General Manager Title: President
-------------------------------- ------------------------------
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ADDENDUM NO. 1
To Lease dated May 24, 1996, by and between Whitnall Summit Company, LLC as
LESSOR and Merge Technologies as Lessee.
ARTICLE XLII
BROKERAGE COMMISSION
42.1 LESSOR represents and warrants to LESSEE that it has not incurred any
obligation or liability, contingent or otherwise, for brokerage or
finder's fees or agent's commission or other like payment in connection
with this Lease or the transactions contemplated hereby and LESSOR agrees
to indemnify and hold LESSEE harmless against and in respect of any such
obligation and liability based in any way upon agreements, arrangements or
understandings made or claimed to have been made by LESSOR with any third
person. Similarly, LESSEE represents and warrants to LESSOR that it has
not incurred any obligation or liability, contingent or otherwise, for
brokerage or finder's fees or agent's commission or other like payment in
connection with this Lease or the transactions contemplated hereby and
LESSEE agrees to indemnify and hold LESSOR harmless against and in respect
of any such obligation and liability based in any way upon agreements,
arrangements or understandings made or claimed to have been made by LESSEE
with any third person.
ARTICLE XLIII
LEASEHOLD IMPROVEMENTS
43.1 LESSOR shall provide to LESSEE Leasehold Improvements in accordance with
the following descriptions and Exhibit A attached at no additional costs
to the LESSEE beyond the Base Monthly Rent as shown in Article X.X.
X. Demolition to include removal of existing walls, ceilings, floor
materials, and fixtures, as required to complete new construction per
plan.
B. Steel stud and drywall partitions taped and finished including
framing at masonry walls, approximately 320 Lin. Ft. of soffits at
ceiling transition, approximately 180' Lin. Ft. of sorts at the
mezzanine ceilings to enclose existing piping, approximately 80 Lin.
Ft. of demising walls, boxing-out as required East wall to conceal
existing pipes, cables and equipment, window returns, columns and
miscellaneous patching.
C. Acoustical tile to include new 2 x 4 non-reveal edge tile and
standard grid at first floor and mezzanine west column line office
areas. Ceilings East of the column line to be open excluding the
conference room on the second floor. Common area ceiling to be
reworked as required.
X. Xxxx doors to include 21 - 3/0 x 7/0 and 4 - 2/0 x 7/0 oak veneer
doors.
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E. Hollow metal frames to include 11- 3/0 x 7/0, 2 - 3/0 x 7/0 with 2/0
sidelite, 4 - 6/0 x 7/0 and 2 - 4/0 x 7/0 frames.
F. Hardware to include closures and Best Lever locksets at the 2 exit doors
and standard Best passage sets at all others. Shipping and receiving
doors to receive large kick plates.
G. Millwork to include 12' of base cabinets with a plastic laminated counter
top in the break room, approximately 60 Lin. Ft laminate xxxxx at the
exterior windows. Broom closet will be installed in kitchen area.
H. Floor covering to include new anti-static carpet throughout, furnished
and installed with new 4" vinyl base. Corridor carpet to be building
standard carpet.
I. Extend exterior windows to top of existing masonry openings.
J. Painting to include one coat of latex paint on all existing surfaces, two
coats of latex paint on all new drywall and enamel paint on all hollow
metal frames. Stain, seal, and varnish wood doors. We have included the
washing and painting of exposed deck and mechanicals. This includes one
coat of spray applied latex paint including 2 accent colors. Sand blast
and seal the east and south walls of the high bay. Vinyl wall covering
will be installed in the kitchen, conference rooms and lobby area.
K. Glass and glaze to include installation of the following:
i) Butt-glazed entry with sidelite at the main entryway.
ii) Installation of glass wall panels in hollow metal
frames at (2) conference rooms.
iii) Mezzanine glass partitions per plan.
L. Plumbing to include one new double compartment sink, faucet, waste, vent,
and water piping. We will utilize a waste pump for the sink unit and have
included a supplemental water heater. We have not included provisions for
a dishwasher. Waterline and hookups for Xxxx coffee maker are included.
Install a sink and waterline hookup to the darkroom. Install plumbing
hookup for dishwasher. Dishwasher unit to be purchased by LESSEE.
M. Fire protection to include reconfiguration of the existing system in the
acoustical ceiling at the first floor west bay, lobby, and conference
rooms. All other areas will have exposed fire protection piping in
accordance with local codes.
N. Heating, ventilating, and air conditioning work to include remodeling of
the existing system. This work includes:
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i) (4) Trane rooftop heating and air conditioning units. Units to be
mounted on the roof on steel frames.
ii) Economizers with barometric dampers.
iii) Penetrations through the (4) sky lights with the necessary framing
and caulking.
iv) Supply ductwork to be spiral with sidewall discharge grilles.
v) Return ductwork to run down near the floors on each unit.
vi) Supply ductwork under and on mezzanine to be rectangular with
ceiling diffusers.
vii) Gas piping with tie into the nearest gas line.
viii) Hole coring through roof.
ix) Wall fin radiation on the perimeter walls with (11) self-contained
control valves.
x) Demo the pipe radiation on the perimeter walls and the unit on top
of the mezzanine with associated ductwork and grills.
xi) Duct insulation on ducts above the ceilings.
xii) Novar control system.
xiii) Hot water piping and pipe insulation.
xiv) Air balancing.
xv) Engineering, permits and examination fees.
xvi) Three ceiling fans
xvii) Roofing of new unit curbs and pitch pockets.
xviii) Ventilation will be provided for the networking closet.
O. Electrical work to include the following per electrical spec and plan dated
May 14, 1996. Including but not limited to:
i) Two new electrical feeders including circuit panels and
distribution.
ii) Duplex outlets.
iii) Switches.
iv) HVAC wiring.
v) High bay lighting.
vi) 2 x 4 lay-in fixtures with silver paracubes.
vii) Exit lights and emergency fixtures.
P. Floor underlayment to be installed on the entire mezzanine.
Q. Structural steel work to include a new open pan stair with landings and
railings. This includes a bridge at the north stairs and the installation
of new railings per plan and local code. Install a security alarm at the
present fire door exit from roof.
R. Masonry work to include patching of existing brick walls that remain
exposed.
S. Add blinds to conference room sidelites
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ARTICLE XLIV
LEASE BUYOUT
44.1 LESSEE shall have the right to terminate this Lease after the
expiration of the fourth year of the Lease Term provided that:
A. LESSEE is not in default under this Lease on or after the time such
notice is sent to LESSOR; and
B. LESSEE gives LESSOR at least four (4) months prior written notice,
which notice cannot be sent prior to the expiration of the fourth
year of the term of the Lease.
C. LESSEE shall be required to make the following payments to LESSOR
based on the points at which LESSEE terminates this Lease.
i) If the Lease is terminated effective during months 52-60,
LESSEE pays LESSOR a sum sufficient to compensate LESSOR for
the unamortized cost of Leasehold Improvements, plus 10%
interest. This amount will be $68,604 plus $6,860.40
Interest.
ii) If the Lease is terminated effective during months 61-72,
LESSEE shall pay to LESSOR three (3) months of additional
rent beyond termination.
iii) If the Lease is terminated effective during months 73-96,
LESSEE shall pay to LESSOR two (2) months of additional rent
beyond termination.
Such payment must accompany the above-referenced notice of
termination and such notice will be ineffective unless accompanied
by such payment. There shall be no right to terminate this Lease (or
send a notice of termination) prior to the expiration of the fourth
year of the Lease Term.
ARTICLE XLV
RIGHT OF FIRST OPPORTUNITY
45.1 LESSEE shall have the right of first opportunity, subject to the terms
of this paragraph on that contiguous space located west of the LEASED
PREMISES and shaded in yellow on Exhibit C hereto (hereinafter called
the "Expansion Area"). This right of first opportunity will pertain to
the following:
. Vacant office space.
. Space currently occupied and due for renewal.
Within ten (10) business days after being given written notice by
LESSOR that LESSOR has a bona fide offer, including, but not limited
to, letters of intent, to lease any or all of the Expansion Area.
LESSEE may, at its sole option accept that portion of the Expansion
Area offered by written notice
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to LESSOR. LESSOR shall attempt to give consideration to LESSEE
regarding the length of Lease term LESSOR signs with tenants in the
Expansion Area, however LESSEE understands that LESSOR is in the
business of leasing space and does not guarantee that the space within
the Expansion Area will be available if or when LESSEE refuses to
exercise this right of first opportunity. If LESSEE exercises its
option to expand, the following terms and conditions shall apply:
A. That portion of the Expansion Area accepted by the LESSEE shall be
added to the LEASED PREMISES as of the first day of the month
following the completion of any leasehold improvements required
for the LESSEE and in which the LESSEE exercised its option.
X. XXXXXX shall contribute to LESSEE an amount for LESSEE's
construction in the Expansion Area equal to the construction
allowance ( on a cost per square foot basis) for the underlying
office space described in this Lease and adjusted in the same
manner as the underlying rent is adjusted pursuant to Article IV.
If within five (5) years after the foregoing construction
allowance is paid to LESSEE, the Lease is terminated, LESSEE
agrees to pay LESSOR the unamortized portion of such construction
allowance in a single lump sum to be paid prior to such
termination.
C. The annual rent per square foot on the Expansion Area shall be
identical to that charged for the underlying office space of the
LEASED PREMISES at that time and likewise be adjusted pursuant to
Article IV.
D. The term of the expanded area lease shall coincide with and be
co-terminus with the original LEASED PREMISES lease. All other
terms and conditions of the original lease shall also be in force
for the expanded area.
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WHITNALL SUMMIT COMPANY, LLC
SUPPLEMENTAL OFFICE SPACE LEASE
THIS SUPPLEMENTAL AGREEMENT, made and entered this 3rd day of July
1997, by and between the WHITNALL SUMMIT COMPANY, LLC, whose interest in the
property is that of owner for itself, its successors and assigns, hereinafter
called the LESSOR, and Merge Technologies Inc., hereinafter called the
LESSEE, WITNESSETH:
WHEREAS, on the 24th day of May 1996, the parties hereto entered into a
lease covering the use of property located at the West Allis Center, 1126
South 00 Xxxxxx, Xxxx Xxxxx, Xxxxxxxxx 00000, for term beginning September,
1996 and ending August 31, 2004 .
WHEREAS, the LESSEE has need for additional space, and:
WHEREAS, the LESSOR is willing to provide additional space at an
appropriate increase in rental:
NOW, THEREFORE in considerations of the premises, said Lease is amended,
effective July 3rd, 1997, in the following particulars but in no others.
: An additional 700 (784) square feet, located on the 1st floor of
building 21, #150 of the West Allis Center will be used for storage.
: the term of this Agreement (Supplemental Office Space Lease) shall
commence August 1, 1997, and end August 31, 2004.
: The additional monthly charge for this added space shall be $261.33.
All remaining terms and conditions of the original Lease dated the 24th
day of May, 1996 shall continue in force unchanged.
IN WITNESS WHEREOF, the parties have executed this supplement to the May
24, 1996 Lease as of the day and year first above written.
Whitnall Summit Company, LLC Merge Technologies, Inc.
By: /s/ X.X. Xxxxxxxxxxx By: /s/ Xxxxxxx Xxxx
----------------------------------- ---------------------------
Title: Vice President & General Manager Title: Chief Financial Officer
-------------------------------- -----------------------
