EXHIBIT 10.18
Lease
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OFFICE LEASE
STATE OF GEORGIA
COUNTY OF DEKALB
THIS LEASE (the "Lease"), is made this the 14 day of October, 1999, by and
between HIGHWOODS REALTY LIMITED PARTNERSHIP d/b/a Highwoods Properties, a North
Carolina limited partnership, "Landlord" and M&I DATA SERVICES, a division of
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Corporation, a Wisconsin corporation, hereinafter "Tenant."
W I T N E S S E T H :
Upon the terms and conditions hereinafter set forth, Landlord leases to
Tenant and Tenant leases from Landlord property referred to as the Premises, all
as follows:
1. PREMISES. The property hereby leased to Tenant is that area shown on
Exhibit "A" hereto attached, which consists of approximately 11,731 rentable
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square feet ("Rentable Area"), which is located in what is sometimes called the
Highwoods Center at Deerfield Building (the "Building"), located at ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ , ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, State of Georgia (the
"Premises"). As used herein, "Tenant's Share" shall mean a fraction, the
numerator of which shall be the Rentable Area, and the denominator of which
shall be the gross rentable area of the Building. Tenant's Share is deemed to
be twenty-four percent (24%).
If Landlord and Tenant desire for improvements to be made to the Premises
prior to the Commencement Date such improvements shall be made pursuant to the
workletter attached hereto as Addendum One (the "Workletter").
2. TERM. This Lease Term (the "Term") is for sixty-two (62) months, and
shall commence sixty (60) days after Landlord's receipt of an original fully
executed Office Lease from Tenant and approved Plans (as defined in the
Workletter) from Tenant, estimated to be October 1, 1999 ("Commencement Date"),
and shall expire (unless sooner terminated or extended as herein provided) at
noon on November 30, 2004 ("Expiration Date"). In the event Landlord shall
permit Tenant to take possession of the Premises prior to the Commencement Date
referenced above, all the terms and conditions of this Lease shall apply.
Notwithstanding the foregoing, Tenant shall be able to access the space two (2)
weeks prior to the Commencement Date, at no cost and Rent-free, during which
time Tenant shall be allowed to install Tenant's furniture, communications
equipment, and complete Tenant's communications cabling into the workstations,
but not to conduct business. The Commencement Date shall not be deemed to occur
until Tenant shall have been given the full two week period to make the
aforesaid installations.
If Landlord, for any reason whatsoever, cannot deliver possession of the
Premises to Tenant on the Commencement Date, then this Lease shall not be void
or voidable, no obligation of Tenant shall be affected thereby, and neither
Landlord nor Landlord's agents shall be liable to Tenant for any loss or damage
resulting from the delay in delivery of possession; provided, however, that in
such event, the Commencement Date and Expiration Date of this Lease, and all
other dates that may be affected by their change, shall be revised to conform to
the date of Landlord's delivery of possession to Tenant, provided, however, that
notwithstanding any provision to the contrary, Tenant shall be given the full
two (2) week period described above to install Tenant's furniture,
communications equipment and communications cabling before the Commencement Date
shall be deemed to occur. Subject to the provisions hereof regarding "force
majeure" and "Delays," as hereinafter defined, for each day in delivery of
possession to Tenant after seventy-five (75) days after Landlord's receipt of an
original fully executed Office Lease from Tenant and approved plans (as defined
in the Workletter) from Tenant, Landlord shall, as Tenant's sole remedy or
recourse, grant to Tenant one (1) day of free rent to compensate for loss or
damage suffered by Tenant by reason of such delay. The above, however, is
subject to the provision that the period permitted for the delay of delivery of
possession of the Premises shall not exceed one hundred (100) days after the
Commencement Date set forth above in this Section 2 (except that those delays
beyond Landlord's control, including, without limitation, those encompassed in
the meaning of the term "force majeure", or caused by Tenant (the "Delays")
shall be excluded in calculating such period). If Landlord does not deliver
possession to Tenant within such period, then Tenant may terminate this
Lease by written notice to Landlord; provided, that written notice shall be
ineffective if given after Tenant takes possession of any part of the Premises,
or if given more than one hundred twenty (120) days after the original
Commencement Date plus the time of any Delays. Unless expressly otherwise
provided herein, Rent (as hereinafter defined) shall commence on the earlier of
forty-five (45) days after: (i) the Commencement Date; (ii) occupancy of the
Premises by Tenant to conduct business; (iii) the date Landlord has the Premises
ready for occupancy by Tenant, as such date is adjusted under the Workletter, if
any, attached hereto; or (iv) the date Landlord could have had the Premises
ready had there been no Delays attributable to Tenant, provided, however, Tenant
has been given the two (2) full week period for installation as provided above,
before the forty-five (45) day free Rent period commences. Unless the context
otherwise so requires, the term "Rent" as used herein includes both Base Rent
and Additional Rent as set forth in Section 4.
If the Expiration Date, as determined herein, does not occur on the last
day of a calendar month, then Landlord, at its option, may extend the Term by
the number of days necessary to cause the Expiration Date to occur on the last
day of the last calendar month of the Term. Tenant shall pay Base Rent and
Additional Rent for such additional days at the same rate payable for the
portion of the last calendar month immediately preceding such extension. The
Commencement Date, Term and Expiration Date may be set forth in a commencement
letter (the "Commencement Letter") prepared by Landlord and executed by Tenant.
3. USE. The Premises may be used only for general office purposes (the
"Permitted Use"), but for no other use without Landlord's prior written consent.
Tenant shall never make any use of the Premises which is in violation of any
governmental laws, rules or regulations, whether now existing or hereafter
enacted or which is in violation of the general rules and regulations for
tenants as may be developed or modified from time to time by Landlord effective
as of the date delivered to Tenant or posted on the Premises providing such
rules are uniformly applicable to all tenants in the Building (the "Rules and
Regulations"), nor may Tenant make any use of the Premises not permitted, or
otherwise prohibited, by any restrictive covenants which apply to the Premises.
Tenant may not make any use that is or may be a nuisance or trespass, which
increases any insurance premiums, or makes such insurance unavailable to
Landlord on the Building. In the event of an increase in any of Landlord's
insurance premiums which results from Tenant's use or occupancy of the Premises,
if Tenant does not pay Landlord, on demand, the amount of such increase,
Landlord may treat such use as a default hereunder.
4. RENT. As used herein, the term "Rent" shall mean Base Rent (as
hereinafter defined) plus Additional Rent (as hereinafter defined). Tenant
shall pay to Landlord Rent, on or before the first day of each calendar month
during the Term (except that the first forty-five (45) days of the Term shall be
Rent-free pursuant hereto), without previous demand or notice therefor by
Landlord and without set off or deduction; provided, however, if the Term
commences on a day other than the first day of a calendar month, then Rent for
such month shall be prorated for the period between the Commencement Date and
the last day of the month in which the Commencement Date falls. Notwithstanding
anything contained herein to the contrary, Tenant's obligation to pay Rent under
this Lease is completely separate and independent from any of Landlord's
obligations under this Lease. For each monthly Rent payment Landlord receives
after the fifth (5th) day of the month, Landlord shall be entitled to all
remedies provided under Sections 13 and 14 below, and a late charge in the
amount of five percent (5%) of all Rent due for such month. If Landlord presents
Tenant's check to any bank and Tenant has insufficient funds to pay for such
check, then Landlord shall be entitled to all remedies provided under Sections
13 and 14 below and a lawful bad check fee or five percent (5%) of the amount of
such check, whichever amount is less. Landlord agrees to accept regular monthly
Rent payments using Automated Clearing House (ACH) and agrees to execute
paperwork as necessary to allow such payment process.
Provided, however, Landlord shall not be entitled to call a default under
Sections 13 or 14 below, and same shall not be deemed a default, upon the
initial failure, during any lease year, of Tenant to pay Rent as herein
provided, until and unless Landlord gives to Tenant written notice of such
failure and Tenant has not, within five (5) days of receipt (or deemed receipt)
of such notice, cured such failure to pay. Landlord shall be required to give
only two (2) such notices during any lease year.
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4.1 BASE RENT. For the first fourteen (14) months of the Term, Base Rent
shall be payable, in advance, in equal monthly installments of $ 15,348.06
(subject to the 45-day Rent abatement provided above) and thereafter shall be
increased pursuant to Section 27 below or as set forth on Lease Addendum No.
Two.
4.2 ADDITIONAL RENT. As used in this Lease, the term "Additional Rent"
shall mean all sums and charges, excluding Base Rent, due and payable by Tenant
under this Lease, including, but not limited to, the following:
(a) sales or use tax imposed on rents collected by Landlord or any tax
on rents in lieu of ad valorem taxes on the Building, even though laws imposing
such taxes attempt to require Landlord to pay the same; provided, however, if
any such sales or use tax shall be imposed on Landlord and Landlord shall be
prohibited by applicable law from collecting the amount of such tax from Tenant
as Additional Rent, then Landlord, upon sixty (60) days prior written notice to
Tenant, may terminate this Lease, unless, legally, Tenant can and does reimburse
Landlord for such tax.
(b) Tenant's Proportionate Share (as hereinafter defined) of the
increase in Landlord's Operating Expenses (as hereinafter defined) as set forth
in Addendum Number Two.
5. UTILITIES AND SERVICES. Tenant shall promptly pay the cost of all
janitorial (Tenant shall contract with a company of Tenant's choice for such
janitorial service) and utility services furnished to the Premises, including,
but not limited to, gas, water, electricity, garbage collection and other
sanitary services, and any initiation fees for any of the foregoing. In the
event Landlord furnishes any utility service to the Premises, Tenant shall
promptly pay Tenant's Share of the cost of any such utility to Landlord within
ten (10) days of receiving a statement showing any amount due. Landlord may
reasonably adjust Tenant's Share for purposes of this paragraph if Landlord
reasonably determines that Tenant's use of the Premises justifies a
disproportionate allocation of utility cost to Tenant. There shall be no
abatement or reduction of Rent by reason of any of the foregoing services not
being continuously provided to Tenant.
Landlord shall further provide to Tenant at no additional cost to Tenant
5.87 unreserved parking spaces per each 1,000 rentable square feet of the
Premises and as expanded from time to time.
Tenant shall report to Landlord immediately any defective condition in or
about the Premises known to Tenant and if such defect is not so reported and
such failure to promptly report results in other damage, Tenant shall be liable
for same. Landlord shall not be liable to Tenant for any damage caused to
Tenant and its property to the Building or any part or appurtenance thereof
being improperly constructed or being or becoming out of repair, or arising from
the leaking of gas, water, sewer or steam pipes, or from problems with
electrical service, except if caused by the negligence or willful misconduct of
the Landlord or its agents, contractors or employees.
If as a result of any failure by Landlord to furnish or delay in furnishing
any of the services described in this section, the Premises are rendered
substantially untenantable for a period of seventy-two (72) consecutive hours
and the Tenant does not occupy or use the Premises due to such untenantability,
then, commencing upon the expiration of said 72-hour period, all Rent shall be
equitably abated retroactively for the duration of such untenantability.
6. TENANT'S ACCEPTANCE AND MAINTENANCE OF PREMISES; LANDLORD'S DUTIES
AND RIGHTS. Subject to the terms of the attached Workletter, if any, Tenant's
occupancy of the Premises is Tenant's representation to Landlord that Tenant has
examined and inspected the same, finds the Premises to be as represented by
Landlord and satisfactory for Tenant's intended use, and constitutes Tenant's
acceptance "as is." Landlord makes no representation or warranty as to the
condition of said Premises, except as set forth in this Lease and the
Workletter. Landlord shall complete, at Landlord's expense, the Tenant
Improvements as defined in the Workletter pursuant thereto. During Tenant's
move-in, a representative of Tenant must be on-site with Tenant's moving company
to insure proper treatment of the Building and the Premises. Elevators in multi-
story office buildings must remain in use for the general public during business
hours as defined herein in Section 5. Any specialized use of elevators must be
coordinated with Landlord's property manager. Tenant must properly dispose of
all packing material and refuse in
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accordance with the Rules and Regulations. Any damage or destruction to the
Building or the Premises due to moving will be the sole responsibility of
Tenant. Tenant shall deliver at the end of this Lease each and every part of the
Premises in good repair and condition, ordinary wear and tear and damage by
insured casualty excepted. The delivery of a key or other such tender of
possession of the Premises to Landlord or to an employee of Landlord shall not
operate as a termination of this Lease or a surrender of the Premises except
upon written notice by Landlord. Tenant shall: (i) keep the Premises and
fixtures in good order; (ii) make repairs and replacements to the Premises or
Building needed because of Tenant's misuse or primary negligence; (iii) repair
and replace special equipment or decorative treatments installed by or at
Tenant's request and that serve the Premises only, except if this Lease is ended
because of casualty loss or condemnation; and (iv) not commit waste. Tenant,
however, shall make no structural or interior alterations of the Premises
without Landlord's prior written consent, which consent shall not be
unreasonably withheld, conditioned, or delayed. If Tenant requires alterations,
Tenant shall provide Landlord's managing agent with a complete set of
construction drawings, and such agent shall then determine the actual cost of
the work to be done (to include a construction supervision fee of five percent
(5%) to be paid to Landlord's managing agent if such alterations will cost in
excess of $10,000.00). Tenant may then either agree to pay Landlord to have the
work done or withdraw its request for alterations. On termination of this Lease
or vacation of the Premises by Tenant, Tenant shall restore the Premises, at
Tenant's sole expense, to the same condition as existed at the Commencement
Date, ordinary wear and tear and damage by insured casualty only excepted.
Landlord, however, may elect to require Tenant to leave alterations performed
for Tenant unless at the time of such alterations Landlord agreed in writing
such alterations could be removed on the Expiration Date, upon the termination
of this Lease or upon Tenant's vacation of the Premises.
Notwithstanding any provision to the contrary, Tenant shall be permitted
without Landlord's consent being required to install its card access and
security system and cabling and wiring as may be necessary from time to time for
the operation of its business and shall be permitted to remove the hardware of
said card access and security system and repair the Premises if any damage is
caused by said removal, but shall not be required to remove the wiring or
cabling. The requirement to provide construction drawings and pay a
construction supervision fee shall not be applicable to such installations.
Tenant shall keep the Premises and the Building free from any liens arising
out of any work performed, materials furnished, or obligations incurred by or on
behalf of Tenant. Should any claim of lien or other lien be filed against the
Premises or the Building by reason of any act or omission of Tenant or any of
Tenant's agents, employees, contractors or representatives, then Tenant shall
cause the same to be canceled and discharged of record by bond or otherwise
within ten (10) days after the filing thereof. Should Tenant fail to discharge
such lien within such ten (10) day period, then Landlord may discharge the same,
in which event Tenant shall reimburse Landlord, on demand, as Additional Rent,
for the amount of the lien or the amount of the bond, if greater, plus all
administrative costs incurred by Landlord in connection therewith. The remedies
provided herein shall be in addition to all other remedies available to Landlord
under this Lease or otherwise. Tenant shall have no power to do any act or make
any contract that may create or be the foundation of any lien, mortgage or other
encumbrance upon the reversionary or other estate of Landlord, or any interest
of Landlord in the Premises. NO CONSTRUCTION LIENS OR OTHER LIENS FOR ANY
LABOR, SERVICES OR MATERIALS FURNISHED TO THE PREMISES SHALL ATTACH TO OR AFFECT
THE INTEREST OF LANDLORD IN AND TO THE PREMISES OR THE BUILDING.
Notwithstanding anything to the contrary set forth above in this Section 6,
if Tenant does not perform its maintenance obligations in a timely manner as set
forth in this Lease, commencing the same within thirty (30) days after receipt
of written notice from Landlord specifying the work needed and thereafter
diligently and continuously pursuing completion of unfulfilled maintenance
obligations, then Landlord shall have the right, but not the obligation, to
perform such maintenance, and any actual amounts so expended by Landlord shall
be paid by Tenant to Landlord within thirty (30) days after demand, with
interest at the maximum rate allowed by law (or the rate of twelve percent (12%)
per annum, whichever is less) accruing from the date of expenditure through the
date paid.
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Except for repairs and replacements that Tenant must make under this
Section 6, Landlord shall pay for and make all other repairs and replacements to
the Premises, common areas and Building (including Building fixtures and
equipment). This maintenance shall include the roof, foundation, exterior walls,
interior structural walls, all structural components, and all exterior (outside
of walls) systems, such as mechanical, electrical, HVAC, and plumbing. Repairs
or replacements required under Section 6 shall be made within a reasonable time
(depending on the nature of the repair or replacement needed) after receiving
notice from Tenant or Landlord having actual knowledge of the need for a repair
or replacement.
7. DAMAGES TO PREMISES. If the Premises shall be partially damaged by
fire or other casualty insured under Landlord's insurance policies, and if
Landlord's lender(s) shall permit insurance proceeds paid as a result thereof to
be so used, then upon receipt of the insurance proceeds, Landlord shall, except
as otherwise provided herein, promptly repair and restore the Premises
(exclusive of improvements made by Tenant, Tenant's trade fixtures, decorations,
signs, and contents) substantially to the condition thereof immediately prior to
such damage or destruction; limited, however, to the extent of the insurance
proceeds received by Landlord. If by reason of such occurrence: (i) the
Premises is rendered wholly untenantable; (ii) the Premises is damaged in whole
or in part as a result of a risk which is not covered by Landlord's insurance
policies; (iii) Landlord's lender does not permit a sufficient amount of the
insurance proceeds to be used for restoration purposes; (iv) the Premises is
damaged in whole or in part during the last two years of the Term; or (v) the
Building containing the Premises is damaged (whether or not the Premises is
damaged) to an extent of fifty percent (50%) or more of the fair market value
thereof, then Landlord may elect either to repair the damage as aforesaid, or to
cancel this Lease by written notice of cancellation given to Tenant within
forty-five (45) days after the date of such occurrence, and thereupon this Lease
shall terminate. Tenant shall vacate and surrender the Premises to Landlord
within fifteen (15) days after receipt of such notice of termination. In
addition, Tenant may also terminate this Lease by written notice given to
Landlord at any time between the one hundred twenty-first (121st) and one
hundred fiftieth (150th) days after the occurrence of any such casualty, if
Landlord has failed to restore the damaged portions of the Building (including
the Premises) within one hundred twenty (120) days of such casualty. However,
if Landlord is prevented by Delays as defined in Section 2, from completing the
restoration within said one hundred twenty (120) day period, and if Landlord
provides Tenant with written notice of the cause for the Delays within fifteen
(15) days after the occurrence thereof, such notice to contain the reason for
the Delays and a good faith estimate of the period of the Delays caused thereby,
then Landlord shall have an additional period beyond said one hundred twenty
(120) days, equal to the Delays in which to restore the damaged areas of the
Building; and Tenant may not elect to terminate this Lease until said additional
period required for completion has expired with the Building not having been
substantially restored. In such case, Tenant's thirty (30) day notice of
termination period shall begin to run upon the expiration of Landlord's
additional period for restoration set forth in the preceding sentence. Upon the
termination of this Lease as aforesaid, Tenant's liability for the Rent and
other charges reserved hereunder shall cease as of the effective date of the
termination of this Lease, subject, however, to the provisions for abatement of
Rent hereinafter set forth.
Unless this Lease is terminated as aforesaid, this Lease shall remain in
full force and effect, and Tenant shall promptly repair, restore, or replace
Tenant's improvements, trade fixtures, decorations, signs, and contents in the
Premises in a manner and to at least a condition equal to that existing prior to
their damage or destruction, and the proceeds of all insurance carried by Tenant
on said property shall be held in trust by Tenant for the purposes of such
repair, restoration, or replacement.
If, by reason of such fire or other casualty, the Premises is rendered
wholly untenantable, then the Rent payable by Tenant shall be fully abated, or
if only partially damaged, such Rent and other charges shall be abated
proportionately as to that portion of the Premises rendered untenantable, in
either event (unless the Lease is terminated, as aforesaid) from the date of
such casualty until the Premises have been substantially repaired and restored,
or until Tenant's business operations are restored in the entire Premises,
whichever shall first occur. Tenant shall continue the operation of Tenant's
business in the Premises or any part thereof not so damaged during any such
period to the extent reasonably practicable from the standpoint of prudent
business management. However, if such damages or other casualty shall be caused
by the negligence or other wrongful conduct of Tenant or of Tenant's subtenants,
licensees, contractors, or invitees, or their respective
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agents or employees, there shall be no abatement of Rent. Except for the
abatement of the Rent hereinabove set forth, Tenant shall not be entitled to,
and hereby waives, all claims against Landlord for any compensation or damage
for loss of use of the whole or any part of the Premises and/or for any
inconvenience or annoyance occasioned by any such damage, destruction, repair,
or restoration.
8. ASSIGNMENT-SUBLEASE. Tenant may not assign or encumber this Lease or
its interest in the Premises arising under this Lease, and may not sublet any
part or all of the Premises without first obtaining the written consent of
Landlord, which consent shall not be unreasonably withheld or delayed. Any
assignment or sublease to which Landlord may consent (one consent not being any
basis that Landlord should grant any further consent) shall not relieve Tenant
of any or all of its obligations hereunder. For the purpose of this Section 8,
the word "assignment" shall be defined and deemed to include the following: (i)
if Tenant is a partnership, the withdrawal or change, whether voluntary,
involuntary or by operation of law, of partners owning thirty percent (30%) or
more of the partnership, or the dissolution of the partnership; (ii) if Tenant
consists of more than one person, an assignment, whether voluntary, involuntary,
or by operation of law, by one person to one of the other persons that is a
Tenant; (iii) if Tenant is a corporation, any dissolution or reorganization of
Tenant, or at any time ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Corporation is not publicly traded, the
sale or other transfer of a controlling percentage (hereafter defined) of
capital stock of Tenant other than to an affiliate or subsidiary or the sale of
fifty-one percent (51%) in value of the assets of Tenant; (iv) if Tenant is a
limited liability company, the change of members whose interest in the company
is fifty percent (50%) or more. The phrase "controlling percentage" means the
ownership of, and the right to vote, stock possessing at least fifty-one percent
(51%) of the total combined voting power of all classes of Tenant's capital
stock issued, outstanding and entitled to vote for the election of directors, or
such lesser percentage as is required to provide actual control over the affairs
of the corporation. Acceptance of Rent by Landlord after any non-permitted
assignment shall not constitute approval thereof by Landlord. Notwithstanding
the foregoing provisions of this Section 8, Tenant may assign or sublease part
or all of the Premises without Landlord's consent to: (i) any corporation or
partnership that controls, is controlled by, or is under common control with,
Tenant; or (ii) any corporation resulting from the merger or consolidation with
Tenant or to any entity that acquires all of Tenant's assets as a going concern
of the business that is being conducted on the Premises, as long as the assignee
or sublessee is a bona fide entity and assumes the obligations of Tenant, and
continues the same Permitted Use as provided under Section 3. However,
Landlord must be given prior written notice of any such assignment or
subletting, and failure to do so shall be a default hereunder. Landlord will
never consent to an assignment or sublease that might result in a use that
conflicts with the rights of an existing tenant under its lease.
In no event shall this Lease be assignable by operation of any law (except
for mergers as provided above), and Tenant's rights hereunder may not become,
and shall not be listed by Tenant as an asset under any bankruptcy, insolvency
or reorganization proceedings. Tenant is not, may not become, and shall never
represent itself to be an agent of Landlord, and Tenant acknowledges that
Landlord's title is paramount, and that it can do nothing to affect or impair
Landlord's title.
If Landlord consents to any assignment or subletting, Tenant shall pay all
reasonable out-of-pocket costs and expenses incurred by Landlord in connection
with the assignment or sublease transaction, including Landlord's reasonable
attorneys' fees.
If this Lease shall be assigned or the Premises or any portion thereof
sublet by Tenant at a rental that exceeds the rentals to be paid to Landlord
hereunder, attributable to the Premises or portion thereof so assigned or
sublet, then 50% of any such excess shall be paid over to Landlord by Tenant but
any such excess shall be determined after first deducting Tenant's actual out-
of-pocket costs incurred in obtaining said assignment or sublease including
without limitation, broker commissions, reasonable attorney fees not to exceed
$500.00, tenant improvement expenses and advertising costs. If Landlord
procures a permissible subtenant or assignee, Landlord shall be paid a market
brokerage fee for such assistance.
9. TENANT'S COMPLIANCE; INSURANCE REQUIREMENTS. Tenant shall comply with
all applicable laws, ordinances and regulations affecting Tenant's use and
occupancy of the Premises, now existing or hereafter adopted, including the
Rules and Regulations.
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Throughout the Term, Tenant, at its sole cost and expense, shall keep or
cause to be kept for the mutual benefit of Landlord, Landlord's managing agent,
(presently Highwoods/Forsyth Limited Partnership and its affiliates) and Tenant,
Commercial General Liability Insurance (1986 ISO Form or its equivalent) with a
combined single limit, each Occurrence and General Aggregate-per location of at
least TWO MILLION DOLLARS ($2,000,000), which policy shall insure against
liability of Tenant, arising out of and in connection with Tenant's use of the
Premises, and which shall insure the indemnity provisions contained herein. Not
more frequently than once every three (3) years, Landlord may require the limits
to be increased if in its reasonable judgment (or that of its mortgagee) the
coverage is insufficient. Tenant shall also carry the equivalent of ISO Special
Form Property Insurance on its personal property and fixtures located in the
Premises and any improvements made by Tenant for their full replacement value
and with coinsurance waived, and Tenant shall neither have, nor make, any claim
against Landlord for any loss or damage to the same, regardless of the cause
thereof.
Prior to taking possession of the Premises, and annually thereafter, Tenant
shall deliver to Landlord certificates or other evidence of insurance reasonably
satisfactory to Landlord. All such policies shall be non-assessable and shall
contain language to the extent obtainable that: (i) any loss shall be payable
notwithstanding any act or negligence of Landlord or Tenant that might otherwise
result in forfeiture of the insurance, (ii) that the policies are primary and
non-contributing with any insurance that Landlord may carry, and (iii) that the
policies cannot be canceled, non-renewed, or coverage reduced except after
thirty (30) days' prior written notice to Landlord. If Tenant fails to provide
Landlord with such certificates or other evidence of insurance coverage, within
ten (10) days after written notice from Landlord of such failure, Landlord may
obtain such coverage and Tenant shall reimburse the cost thereof on demand.
Anything in this Lease to the contrary notwithstanding, Landlord hereby
releases and waives unto Tenant (including all partners, stockholders, officers,
directors, employees and agents thereof), its successors and assigns, and Tenant
hereby releases and waives unto Landlord (including all partners, stockholders,
officers, directors, employees and agents thereof), its successors and assigns,
all rights to claim damages for any injury, loss, cost or damage to persons or
to the Premises or any other casualty, as long as the amount of which injury,
loss, cost or damage has been paid either to Landlord, Tenant, or any other
person, firm or corporation, under the terms of any Property, General Liability,
or other policy of insurance, to the extent such releases or waivers are
permitted under applicable law. As respects all policies of insurance carried
or maintained pursuant to this Lease and to the extent permitted under such
policies, Tenant and Landlord each waive the insurance carriers' rights of
subrogation. Subject to the foregoing, and except if caused by the gross
negligence or wilful misconduct of the Landlord or its agents, contractors, or
employees, Tenant shall indemnify and hold Landlord harmless from and against
any and all claims arising out of (i) Tenant's use of the Premises or any part
thereof, (ii) any activity, work, or other thing done, permitted or suffered by
Tenant in or about the Premises or the Building, or any part thereof, (iii) any
breach or default by Tenant in the performance of any of its obligations under
this Lease, or (iv) any act or negligence of Tenant, or any officer, agent,
employee, contractor, servant, invitee or guest of Tenant; and in each case from
and against any and all damages, losses, liabilities, lawsuits, costs and
expenses (including reasonable attorneys' fees actually incurred at standard
hourly rates at all tribunal levels) arising in connection with any such claim
or claims as described in (i) through (iv) above, or any action brought thereon.
Notwithstanding any provision to the contrary, Landlord shall indemnify and hold
Tenant harmless from and against any and all claims arising out of (i) any
breach or default by Landlord in the performance of any of its obligations under
this Lease, or (ii) gross negligence of Landlord, or any officer, agent,
employee, contractor or servant of Landlord; and in each case from and against
any and all damages, losses, liabilities, lawsuits, costs and expenses
(including reasonable attorneys' fees actually incurred at standard hourly rates
at all tribunal levels ) arising in connection with the foregoing or any action
brought thereon.
If such action is brought against Landlord or Tenant, the other shall
defend the same through counsel selected by such party's insurer, or other
counsel acceptable to the other. Tenant assumes all risk of damage or loss to
its property or injury or death to persons in, on, or about the Premises, from
all causes except those caused by the negligence or wilful misconduct of the
Landlord, or its agents, employees or contractors, or for which the law imposes
liability on Landlord regardless of any attempted waiver thereof. The
provisions of this paragraph shall survive the termination of this Lease.
-7-
Landlord shall keep the Building, including the improvements, insured
against damage and destruction by perils insured by the equivalent of ISO
Special Form Property Insurance in the amount of the full replacement value of
the Building.
Each party shall keep its personal property and trade fixtures in the
Premises and Building insured with the equivalent of ISO Special Form Property
Insurance in the amount of the full replacement cost of the property and
fixtures. Tenant shall also keep any non-standard improvements made to the
Premises at Tenant's request after the Commencement Date insured to the same
degree as Tenant's personal property.
Tenant's insurance policies required by this Lease shall: (i) be issued by
insurance companies licensed to do business in the state in which the Premises
are located with a general policyholder's ratings of at least A- and a financial
rating of at least VI in the most current Best's Insurance Reports available on
the Commencement Date, or if the Best's ratings are changed or discontinued, the
parties shall agree to a comparable method of rating insurance companies; (ii)
include the non-procuring party as an additional insured as its interest may
appear [other landlords or tenants may be added as additional insureds in a
blanket policy]; (iii) provide that the insurance not be canceled, non-renewed
or coverage materially reduced unless thirty (30) days advance notice is given
to the non-procuring party; (iv) be primary policies; (v) provide that any loss
shall be payable notwithstanding any negligence of Landlord or Tenant which
might result in a forfeiture thereunder of such insurance or the amount of
proceeds payable; (vi) be maintained during the entire Term and any extension
terms. Tenant acknowledges it is responsible for paying the deductible to
Tenant's insurance policies require by this Lease.
10. SUBORDINATION-ATTORNMENT-LANDLORD FINANCING. Tenant agrees that this
Lease will be either subordinate or superior to any mortgage heretofore or
hereafter executed by Landlord covering the Premises, depending on the
requirements of such mortgagee. Tenant, within ten (10) days after request to do
so from Landlord or its mortgagee, will execute such agreement making this Lease
superior or subordinate to any mortgage covering the Premises, and will agree to
attorn to said mortgagee provided that in connection with any subordination, the
mortgagee agrees not to disturb Tenant's possession hereunder so long as Tenant
is not in default under this Lease beyond any applicable cure period. Landlord
shall use its best efforts to provide for Tenant's benefit a nondisturbance
agreement for all existing holders of mortgages affecting the Premises. Further,
Tenant agrees to execute within five (5) days after request therefor, and as
often as requested, estoppel certificates confirming any factual matter
requested therein which is true and is within Tenant's knowledge regarding this
Lease, the Premises, or Tenant's use thereof, including, but not limited to date
of occupancy, Expiration Date, the amount of Rent due and date to which Rent is
paid, whether or not Tenant has any defense or offsets to the enforcement of
this Lease or the Rent payable hereunder or knowledge of any default or breach
by Landlord, and that this Lease together with any modifications or amendments
is in full force and effect. Upon Tenant's written request, Landlord shall
provide similar estoppel certificates within ten (10) days. Tenant shall attach
to such estoppel certificate copies of all modifications or amendments.
Tenant agrees to give any mortgagee of Landlord which has provided a non-
disturbance agreement to Tenant, notice of, and a reasonable opportunity (which
shall in no event be less than thirty (30) days after written notice thereof is
delivered to mortgagee as herein provided) to cure, any Landlord default
hereunder; and Tenant agrees to accept such cure if effected by such mortgagee.
No termination of this Lease by Tenant shall be effective until such notice has
been given and the cure period has expired without the default having been
cured. Further, Tenant agrees to permit such mortgagee (or other purchaser at
any foreclosure sale), and its successors and assigns, on acquiring Landlord's
interest in the Premises and the Lease, to become substitute Landlord hereunder,
with liability only for such Landlord obligations as accrue after Landlord's
interest is so acquired. Tenant agrees to attorn to any successor Landlord.
11. SIGNS. Tenant may not erect, install or display any sign or
advertising material upon the Building exterior, the exterior of the Premises
(including any exterior doors), or the exterior walls thereof, or in any window
therein, without the prior written consent of Landlord.
-8-
12. ACCESS TO PREMISES. Landlord shall have the right, at all reasonable
times, upon reasonable prior notice and if Tenant so desures, and makes
available an authorized representative of Tenant, either itself or through its
authorized agents, to enter the Premises (i) to make repairs, alterations or
changes as Landlord deems necessary, (ii) to inspect the Premises, and (iii) to
show the Premises to prospective mortgagees and purchasers. Landlord shall have
the right, either itself or through its authorized agents, to enter the Premises
at all reasonable times upon reasonable prior notice and if Tenant so desires,
and makes available an authorized representative of Tenant for inspection to
show prospective tenants if within one hundred eighty (180) days prior to the
Expiration Date as extended by any exercised option. Tenant, its agents,
employees, invitees, and guests, shall have the right of ingress and egress to
common and public areas of the Building, provided Landlord by reasonable
regulation may control such access for the comfort, convenience, safety and
protection of all tenants in the Building, or as needed for making repairs and
alterations. Tenant shall be responsible for providing access to the Premises to
its agents, employees, invitees and guests after hours, but in no event shall
Tenant's use of and access to the Premises after hours compromise the security
of the Building. Landlord shall have the right to enter the Premises at any time
in the event of an emergency.
13. DEFAULT. If Tenant: (i) fails to pay when due any Rent, or any other
sum of money which Tenant is obligated to pay, as provided in this Lease; or
(ii) breaches any other agreement, covenant or obligation herein set forth and
such breach shall continue and not be remedied within thirty (30) days after
Landlord shall have given Tenant written notice specifying the breach, or if
such breach cannot, with due diligence, be cured within said period of thirty
(30) days and Tenant does not within said thirty (30) day period commence and
thereafter with reasonable diligence completely cure the breach within a
reasonable period thereafter not to exceed ninety (90) days; or (iii) files (or
has filed against it and not stayed or vacated within sixty (60) days after
filing) any petition or action for relief under any creditor's law (including
bankruptcy, reorganization, or similar action), either in state or federal
court; or (iv) makes any transfer in fraud of creditors as defined in ▇▇▇▇▇▇▇
▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Bankruptcy Code (11 U.S.C. 548, as amended or
replaced), has a receiver appointed for its assets (and appointment shall not
have been stayed or vacated within thirty (30) days), or makes an assignment for
benefit of creditors; then Tenant shall be in default hereunder, and, in
addition to any other lawful right or remedy which it may have, Landlord at its
option may do the following: (i) terminate this Lease; (ii) repossess the
Premises, and with or without terminating, relet the same at such amount as
Landlord deems reasonable; and if the amount for which the Premises is relet is
less than Tenant's Rent and all other obligations of Tenant to Landlord
hereunder, then Tenant shall immediately pay the difference on demand to
Landlord, but if in excess of Tenant's Rent, and all other obligations of Tenant
hereunder, the entire amount obtained from such reletting shall belong to
Landlord, free of any claim of Tenant thereto; or (iii) without obtaining any
court authorization, but only to the extent permitted by applicable law, lock
the Premises and deny Tenant access thereto. All reasonable expenses of Landlord
in repairing, restoring, or altering the Premises for reletting as general
office space, together with leasing fees and all other expenses in seeking and
obtaining a new Tenant, shall be charged to and be a liability of Tenant.
Landlord's reasonable attorneys' fees in pursuing any of the foregoing remedies,
or in collecting any Rent due by Tenant hereunder, shall be paid by Tenant.
All rights and remedies of Landlord are cumulative, and the exercise of any
one shall not be an election excluding Landlord at any other time from exercise
of a different or inconsistent remedy. No exercise by Landlord of any right or
remedy granted herein shall constitute or effect a termination of this Lease
unless Landlord shall so elect by written notice delivered to Tenant.
The failure of Landlord or Tenant to exercise its rights in connection with
this Lease or any breach or violation of any term, or any subsequent breach of
the same or any other term, covenant or condition herein contained shall not be
a waiver of such term, covenant or condition or any subsequent breach of the
same or any other covenant or condition herein contained.
No acceptance by Landlord of a lesser sum than the Base Rent,
administrative charges, Additional Rent and other sums then due shall be deemed
to be other than on account of the earliest installment of such payments due,
nor shall any endorsement or statement on any check or any letter accompanying
any check or payment be deemed as accord and satisfaction, and Landlord may
accept such check or payment without prejudice to Landlord's right to recover
the balance of such installment or pursue any other remedy provided in this
Lease.
-9-
In addition, no payments of money by Tenant to Landlord after the
expiration or termination of this Lease after the giving of any notice by
Landlord to Tenant shall reinstate or extend the Term, or make ineffective any
notice given to Tenant prior to the payment of such money. After the service of
notice or the commencement of a suit, or after final judgment granting Landlord
possession of the Premises, Landlord may receive and collect any sums due under
this Lease, and the payment thereof shall not make ineffective any notice or in
any manner affect any pending suit or any judgment previously obtained.
Tenant further agrees that Landlord may obtain an order for summary
ejectment from any court of competent jurisdiction without prejudice to
Landlord's rights to otherwise collect rents from Tenant.
14. MULTIPLE DEFAULTS.
(a) Tenant acknowledges that any rights or options of first refusal,
or to extend the Term, to expand the size of the Premises, to purchase the
Premises or the Building, or other such or similar rights or options which have
been granted to Tenant under this Lease are conditioned upon the prompt and
diligent performance of the terms of this Lease by Tenant. Accordingly, should
Tenant default under this Lease on three (3) or more occasions during any twelve
(12) month period, in addition to all other remedies available to Landlord, all
such rights and options shall automatically, and without further action on the
part of any party, expire and be deemed canceled and of no further force and
effect.
(b) Should Tenant default in the payment of Base Rent, Additional
Rent, or any other sums payable by Tenant under this Lease on three (3) or more
occasions during any twelve (12) month period, regardless of whether any such
default is cured, then, in addition to all other remedies otherwise available to
Landlord, Tenant shall, within ten (10) days after demand by Landlord, post a
security deposit in, or increase the existing Security Deposit by, a sum equal
to three (3) months' installments of Base Rent. Any security deposit posted
pursuant to the foregoing sentence shall be governed by Section 20 below.
(c) Should Tenant default under this Lease on three (3) or more
occasions during any twelve (12) month period, in addition to all other remedies
available to Landlord, any notice requirements or cure periods otherwise set
forth in this Lease with respect to a default by Tenant shall not apply.
15. PROPERTY OF TENANT. Tenant shall pay, timely, any and all taxes
levied or assessed against or upon Tenant's equipment, fixtures, furniture,
leasehold improvements and personal property located in the Premises. Tenant
may, prior to the Expiration Date, remove all fixtures and equipment which it
has placed in the Premises; provided, however, Tenant repairs all damages caused
by such removal. If Tenant does not remove its property from the Premises upon
termination (for whatever cause) of this Lease, such property shall be deemed
abandoned by Tenant, and Landlord may dispose of the same in whatever manner
Landlord may elect without any liability to Tenant.
16. BANKRUPTCY. Landlord and Tenant understand that, notwithstanding
certain provisions to the contrary contained herein, a trustee or debtor in
possession under the United States Bankruptcy Code, as amended, (the "Code") may
have certain rights to assume or assign this Lease. Landlord and Tenant further
understand that, in any event, pursuant to the Code, Landlord is entitled to
adequate assurances of future performance of the provisions of this Lease. The
parties agree that, with respect to any such assumption or assignment, the term
"adequate assurance" shall include at least the following:
-10-
(a) In order to assure Landlord that the proposed assignee will have
the resources with which to pay all Rent payable pursuant to the provisions of
this Lease, any proposed assignee must have, as demonstrated to Landlord's
satisfaction, a net worth (as defined in accordance with generally accepted
accounting principles consistently applied) of not less than the net worth of
Tenant on the Effective Date (as hereinafter defined), increased by seven
percent (7%), compounded annually, for each year from the Effective Date through
the date of the proposed assignment. It is understood and agreed that the
financial condition and resources of Tenant were a material inducement to
Landlord in entering into this Lease.
(b) Any proposed assignee must have been engaged in the conduct of
business for the five (5) years prior to any such proposed assignment, which
business does not violate the Permitted Use allowed under Section 3 above and
such proposed assignee shall continue to engage in the Permitted Use. It is
understood that Landlord's asset will be substantially impaired if the trustee
in bankruptcy or any assignee of this Lease makes any use of the Premises other
than the Permitted Use.
(c) Any proposed assignee of this Lease must assume and agree to be
personally bound by the provisions of this Lease.
17. EMINENT DOMAIN. If all of the Premises, or such part thereof as will
make the same unusable or not feasible for the continued operation of Tenant's
business for the purposes contemplated by this Lease, be taken under the power
of eminent domain (or a conveyance in lieu thereof), then this Lease shall
terminate as of the date possession is taken by the condemnor, and Rent shall be
adjusted between Landlord and Tenant as of such date. If only a portion of the
Premises is taken and Tenant can continue use of the remainder, then this Lease
will not terminate, but Rent shall ▇▇▇▇▇ in a just and proportionate amount to
the loss of use occasioned by the taking. Landlord shall be entitled to receive
and retain the entire award for the affected portion of the Building. Tenant
shall have no right or claim to advance any claim against Landlord for any part
of any award made to or received by Landlord for any taking and no right or
claim for any alleged value of the unexpired portion of this Lease, or its
leasehold estate, or for costs of removal, relocation, business interruption
expense or any other damages arising out of such taking. Tenant, however, shall
not be prevented from making a claim against the condemning party (but not
against Landlord ) for any moving expenses, loss of profits, or taking of
Tenant's personal property (other than its leasehold estate) to which Tenant may
be entitled. Any such award shall not reduce the amount of the award otherwise
payable to Landlord, if any.
18. ADA GENERAL COMPLIANCE. After the Commencement Date hereof, Tenant,
at Tenant's sole expense, shall comply with all laws, rules, orders, ordinances,
directions, regulations and requirements of federal, state, county and municipal
authorities now in force, which shall impose any duty upon Landlord or Tenant
with respect to the use, occupation or alteration of the Premises, and Tenant
shall use all reasonable efforts to fully comply with The Americans With
Disabilities Act of 1990 (the "ADA"), except that Tenant shall only be required
to make alterations or renovations with respect to ADA which are required
because of Tenant's use or occupancy of the Premises after the Commencement
Date. After the Commencement Date hereof, Landlord's responsibility for
compliance with ADA shall include the common areas and restrooms of the
Building, but not the Premises. The Landlord, at the Landlord's expense, shall
deliver the Premises to the Tenant on the Commencement Date in compliance with
all applicable codes, laws, rules and ordinances, including without limitation
ADA.
If Tenant receives any notices alleging violation of ADA relating to any
portion of the Building or of the Premises; any written claims or threats
regarding non-compliance with ADA and relating to any portion of the Building or
of the Premises; or any governmental or regulatory actions or investigations
instituted or threatened regarding non-compliance with ADA and relating to any
portion of the Building or of the Premises, then Tenant shall, within ten (10)
days after receipt of such, advise Landlord in writing, and provide Landlord
with copies of any such claim, threat, action or investigation (as applicable).
-11-
19. QUIET ENJOYMENT. If Tenant promptly and punctually complies with each
of its obligations hereunder, Tenant shall have and enjoy peacefully the
possession of the Premises during the Term hereof, provided that no action of
Landlord or other tenants working in other space in the Building, or in
repairing or restoring the Premises, shall be deemed a breach of this covenant,
or give to Tenant any right to modify this Lease either as to term, rent
payables or other obligations to be performed.
20. SECURITY DEPOSIT. Except as otherwise set forth herein, Tenant shall
deposit with Landlord no later than ninety (90) days prior to the expiration of
the Term the sum of $16,523.36, which sum Landlord shall retain as security for
the performance by Tenant of each of its obligations hereunder (the "Security
Deposit"). Landlord shall provide written notice to Tenant of such obligation
thirty (30) days prior to the due date of said Security Deposit. The Security
Deposit shall not bear interest. If, at any time, Tenant fails to perform its
obligations, then Landlord may, at its option, apply the Security Deposit, or
any portion thereof required to cure Tenant's default; provided, however, if
prior to the Expiration Date or any termination of this Lease, Landlord depletes
the Security Deposit, in whole or in part, then immediately following such
depletion, Tenant shall restore the amount so used by Landlord. Landlord agrees
to give Tenant notice of its inspection of the Premises, allow Tenant to be
present thereat and to conduct same within seven (7) days of the Expiration
Date, or any termination of this Lease. Unless Landlord uses the Security
Deposit to cure a default of Tenant, or to restore the Premises to the condition
to which Tenant is required to leave the Premises upon the Expiration Date or
any termination of the Lease, then Landlord shall, within thirty (30) days after
the Expiration Date or any termination of this Lease, refund to Tenant any funds
remaining in the Security Deposit. Tenant may not credit against or deduct the
Security Deposit from any month's Rent.
21. NOTICES. All notices, demands and requests which may be given or which
are required to be given by either party to the other must be in writing. All
notices, demands and requests by Landlord or Tenant shall be addressed as
follows (or to such other address as a party may specify by duly given notice):
RENT PAYMENT
ADDRESS: HIGHWOODS REALTY LIMITED PARTNERSHIP
▇.▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Tax ID# ▇▇-▇▇▇▇▇▇▇
LEGAL NOTICE
ADDRESS FOR
LANDLORD: HIGHWOODS REALTY LIMITED PARTNERSHIP
c/o Highwoods Properties, Inc.
▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Manager, Lease Administration
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
WITH A
COPY TO: Highwoods Properties
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
TENANT: M&I Data Services
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
-12-
WITH A
COPY TO: M&I Data Services
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
Attn: ________________________
Facsimile: ___________________
Notices, demands or requests which Landlord or Tenant are required or
desire to give the other hereunder shall be deemed to have been properly given
for all purposes if (i) delivered against a written receipt of delivery, (ii)
mailed by express, registered or certified mail of the United States Postal
Service, return receipt requested, postage prepaid, or (iii) delivered to a
nationally recognized overnight courier service for next business day delivery,
to its addressee at such party's address as set forth above or (iv) delivered
via telecopier or facsimile transmission to the facsimile number listed above,
provided, however, that if such communication is given via telecopier or
facsimile transmission, an original counterpart of such communication shall be
sent concurrently in either the manner specified in section (ii) or (iii) above
and written confirmation of receipt of transmission shall be provided. Each
such notice, demand or request shall be deemed to have been received upon the
earlier of the actual receipt or refusal by the addressee or three (3) business
days after deposit thereof at any main or branch United States post office if
sent in accordance with section (ii) above, and the next business day after
deposit thereof with the courier if sent pursuant to section (iii) above. The
parties shall notify the other of any change in address, which notification must
be at least fifteen (15) days in advance of it being effective.
Notices may be given on behalf of any party by such party's legal counsel.
22. HOLDING OVER. If Tenant shall hold over after the Expiration Date or
other termination of this Lease, such holding over shall not be deemed to be a
renewal of this Lease but shall be deemed to create a tenancy-at-sufferance and
by such holding over Tenant shall continue to be bound by all of the terms and
conditions of this Lease, except that during such tenancy-at-sufferance Tenant
shall pay to Landlord (i) Base Rent at the rate equal to one hundred fifty
percent (150%) of that provided for in the foregoing Section 4.1, as such rental
amount may have been increased in accordance with the terms of such Section 4.1
hereof, and (ii) any and all Operating Expenses and other forms of Additional
Rent payable under this Lease. The increased Rent during such holding over is
intended to compensate Landlord partially for losses, damages and expenses,
including frustrating and delaying Landlord's ability to secure a replacement
tenant. If Landlord loses a prospective tenant because Tenant fails to vacate
the Premises on the Expiration Date or any termination of the Lease after notice
to do so, then Tenant will be liable for such damages as Landlord can prove
because of Tenant's wrongful failure to vacate.
23. RIGHT TO RELOCATE. (Intentionally Deleted)
24. BROKER'S COMMISSIONS. Tenant represents and warrants that it has not
dealt with any real estate broker, finder or other person, with respect to this
Lease in any manner, except CB ▇▇▇▇▇▇▇ ▇▇▇▇▇ whose address is ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇. Landlord shall pay only any commissions or fees
that are payable to the above-named broker or finder with respect to this Lease
pursuant to Landlord's separate agreement with such broker or finder. Tenant
shall indemnify and hold Landlord harmless from any and all damages resulting
from claims that may be asserted against Landlord by any other broker, finder or
other person (including, without limitation, any substitute or replacement
broker claiming to have been engaged by Tenant in the future), claiming to have
dealt with Tenant in connection with this Lease or any amendment or extension
hereto, or which may result in Tenant leasing other or enlarged space from
Landlord. The provisions of this paragraph shall survive the termination of this
Lease.
25. ENVIRONMENTAL COMPLIANCE.
(a) Tenant's Responsibility. Tenant shall not (either with or without
negligence) cause or permit the escape, disposal or release of any biologically
active or other hazardous substances, or materials. Tenant shall not allow the
storage or use of such substances or materials in any manner not sanctioned by
law or in compliance with the highest standards prevailing in the industry for
the storage and use of such substances or materials, nor allow to be brought
into the Building any such
-13-
materials or substances except to use in the ordinary course of Tenant's
business, and then only after written notice is given to Landlord of the
identity of such substances or materials. Tenant covenants and agrees that the
Premises will at all times during its use or occupancy thereof be kept and
maintained so as to comply with all now existing or hereafter enacted or issued
statutes, laws, rules, ordinances, orders, permits and regulations of all state,
federal, local and other governmental and regulatory authorities, agencies and
bodies applicable to the Premises, pertaining to environmental matters or
regulating, prohibiting or otherwise having to do with asbestos and all other
toxic, radioactive, or hazardous wastes or material including, but not limited
to, the Federal Clean Air Act, the Federal Water Pollution Control Act, and the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980,
as from time to time amended (all hereafter collectively called "Laws"). Tenant
shall execute affidavits, representations and the like, from time to time, at
Landlord's request, concerning Tenant's best knowledge and belief regarding the
presence of hazardous substances or materials on the Premises.
(b) Tenant's Liability. Tenant shall hold Landlord free, harmless, and
indemnified from any penalty, fine, claim, demand, liability, cost, or charge
whatsoever which Landlord shall incur, or which Landlord would otherwise incur,
by reason of Tenant's failure to comply with this Section 25 including, but not
limited to: (i) the cost of bringing the Premises into compliance with all Laws
and in a non-contaminated state, the same condition as prior to occupancy; (ii)
the reasonable cost of all appropriate tests and examinations of the Premises to
confirm that the Premises have been brought into compliance with all Laws; and
(iii) the reasonable fees and expenses of Landlord's attorneys, engineers, and
consultants incurred by Landlord in enforcing and confirming compliance with
this Section 25.
(c) Property. For the purposes of this Section 25, the Premises shall
include the real estate covered by this Lease; all improvements thereon; all
personal property used in connection with the Premises (including that owned by
Tenant); and the soil, ground water, and surface water of the Premises, if the
Premises includes any ground area.
(d) Inspections by Landlord. Landlord and its engineers, technicians, and
consultants (collectively the "Auditors") may, from time to time as Landlord
deems appropriate, conduct periodic tests and examinations ("Audits") of the
Premises to confirm and monitor Tenant's compliance with this Section 25. Such
Audits shall be conducted in such a manner as to minimize the interference with
Tenant's Permitted Use; however in all cases, the Audits shall be of such nature
and scope as shall be reasonably required by then existing technology to confirm
Tenant's compliance with this Section 25. Tenant shall fully cooperate with
Landlord and its Auditors in the conduct of such Audits. The cost of such
Audits shall be paid by Landlord unless an Audit shall disclose a material
failure of Tenant to comply with this Section 25, in which case, the cost of
such Audit, and the cost of all subsequent Audits made during the Term and
within thirty (30) days thereafter (not to exceed two (2) such Audits per
calendar year), shall be paid for on demand by Tenant.
(e) Landlord's Liability. Provided, however, the foregoing covenants and
undertakings of Tenant contained in this Section 25 shall not apply to any
condition or matter constituting a violation of any Law and Landlord shall
indemnify, defend and hold harmless Tenant with respect to any loss, liability,
claim, cause of action, costs and expenses (including without limitation
reasonable attorneys' fees actually incurred at standard hourly rates) with
respect thereto: (i) which existed prior to the commencement of Tenant's use or
occupancy of the Premises; (ii) which was not caused, in whole or in part, by
Tenant or Tenant's agents, employees, officers, partners, contractors or
invitees; or (iii) to the extent such violation is caused by, or results from
the acts or neglects of Landlord or Landlord's agents, employees, officers,
partners, contractors, guests, or invitees.
(f) Tenant's and Landlord's Liability After Termination of Lease. The
covenants contained in this Section 25 shall survive the expiration or
termination of this Lease, and shall continue for so long as Landlord and Tenant
and their successors and assigns may be subject to any expense, liability,
charge, penalty, or obligation against which Tenant has agreed to indemnify
Landlord under this Section 25 or Landlord has agreed to indemnify Tenant.
-14-
26. MISCELLANEOUS. Headings of sections are for convenience only and shall
not be considered in construing the meaning of the contents of such section. The
invalidity of any portion of this Lease shall not have any effect on the balance
hereof. Should Landlord institute any legal proceedings against Tenant for
breach of any provision herein contained, and prevail in such action, Tenant
shall be liable for the costs and expenses of Landlord, including its reasonable
attorneys' fees (at all tribunal levels). This Lease shall be binding upon the
respective parties hereto, and upon their heirs, executors, successors and
assigns. This Lease supersedes and cancels all prior negotiations between the
parties, and no changes shall be effective unless in writing signed by both
parties. Tenant acknowledges and agrees that it has not relied upon any
statements, representations, agreements or warranties except those expressed in
this Lease, and that this Lease contains the entire agreement of the parties
hereto with respect to the subject matter hereof. Landlord may sell the Premises
or the Building without affecting the obligations of Tenant hereunder; upon the
sale of the Premises or the Building, Landlord shall be relieved of all
responsibility for the Premises and shall be released from any liability
thereafter accruing under this Lease. If any Security Deposit or prepaid Rent
has been paid by Tenant, Landlord may transfer the Security Deposit or prepaid
Rent to Landlord's successor and upon such transfer, Landlord shall be released
from any liability for return of the Security Deposit or prepaid Rent. This
Lease may not be recorded without Landlord's prior written consent, but Tenant
agrees on request of Landlord to execute a memorandum hereof for recording
purposes. The singular shall include the plural, and the masculine, feminine or
neuter includes the other. If Landlord, or its employees, officers, directors,
stockholders or partners are ordered to pay Tenant a money judgment because of
Landlord's default under this Lease, said money judgment may only be enforced
against and satisfied out of: (i) Landlord's interest in the Building in which
the Premises are located including the rental income and proceeds from sale; and
(ii) any insurance or condemnation proceeds received because of damage or
condemnation to, or of, said Building that are available for use by Landlord. No
other assets of Landlord or said other parties exculpated by the preceding
sentence shall be liable for, or subject to, any such money judgment. This Lease
shall be interpreted and enforced in accordance with the laws of the State of
Georgia. If requested by Landlord, Tenant shall furnish appropriate legal
documentation evidencing the valid existence in good standing of Tenant, and the
authority of any person signing this Lease to act for the Tenant. If Tenant
signs as a corporation, each of the persons executing this Lease on behalf of
Tenant does hereby covenant and warrant that Tenant is a duly authorized and
existing corporation, that Tenant has and is qualified to do business in the
State of Georgia, that the corporation has a full right and authority to enter
into this Lease and that each of the persons signing on behalf of the
corporation is authorized to do so. The submission of this Lease to Tenant for
review does not constitute a reservation of or option for the Premises, and this
Lease shall become effective as a contract only upon the execution and delivery
by both Landlord and Tenant. The date of execution shall be entered on the top
of the first page of this Lease by Landlord, and shall be the date on which the
last party signed the Lease, or as otherwise may be specifically agreed by both
parties. Such date, once inserted, shall be established as the final day of
ratification by all parties to this Lease, and shall be the date for use
throughout this Lease as the "Effective Date".
27. SPECIAL CONDITIONS OR ADDENDA. The following special conditions, if
any, shall apply, and where in conflict with earlier provisions in this Lease
shall control. If any addenda are noted below, such addenda are incorporated
herein and made a part of this Lease.
(a) ▇▇▇▇▇▇▇▇ ▇▇. ▇, ▇▇▇▇▇▇▇ ▇▇▇▇;
(b) Addendum No. 2, Workletter;
(c) Addendum No. 3, Option To Extend Lease Term; and
(d) Addendum No. 4, Adjustment of Premises.
-15-
RENTAL SCHEDULE
---------------
The following schedule is the Base Rent payable per Paragraph 4 of this
Lease:
Beginning December 1, 2000 through November 30, 2001, the monthly sum of
Fifteen Thousand Three Hundred Forty-Eight Dollars and 06/100 ($15,348.06) for a
total annual base rental of One Hundred Eighty-Four Thousand One Hundred
Seventy-Six Dollars and 70/100 ($184,176.70).
Beginning December 1, 2001 through November 30, 2002, the monthly sum of
Fifteen Thousand Seven Hundred Thirty-One Dollars and 76/100 ($15,731.76) for a
total annual base rental of One Hundred Eighty-Eight Thousand Seven Hundred
Eighty-One Dollars and 12/100 ($188,781.12).
Beginning December 1, 2002 through November 30, 2003, the monthly sum of
Sixteen Thousand One Hundred Twenty-Five Dollars and 05/100 ($16,125.05) for a
total annual base rental of One Hundred Ninety-Three Thousand Five Hundred
Dollars and 65/100 ($193,500.65).
Beginning December 1, 2003 through November 30, 2004, the monthly sum of
Sixteen Thousand Five Hundred Twenty-Three Dollars and 36/100 ($$16,523.36) for
a total annual base rental of One Hundred Ninety-Eight Thousand Two Hundred
Eighty Dollars and 29/100 ($198,280.29).
28. Y2K COMPLIANCE. Landlord acknowledges that it has undertaken or will
undertake commercially reasonable efforts to determine whether building systems,
including HVAC and fire safety, are "Year 2000 Compliant" and shall use its best
efforts to provide to the Tenant prior to the execution of this Lease written
evidence satisfactory to Tenant confirming that such building systems are "Year
2000 Compliant." The term "Year 2000 Compliant" means the building system has
the ability for continued normal use and operation on all dates and times prior
to, on and after January 1, 2000, without any material impairment of performance
or functionality because of any date or time element or format contained in or
utilized by any hardware, software, embedded microprocessor, or other component
contained in, or necessary to the operation of, the building system. Landlord
shall take commercially reasonable steps to make all building systems Year 2000
Compliant, and will give Tenant such notice as is commercially reasonable under
the circumstances of any Year 2000 Compliant problems that may impair the normal
use and operation of a building system or cause interruptions in services
provided by Landlord. Landlord shall not be liable for any consequential
damages arising out of the failure of any building system that is not Year 2000
Compliant.
[SIGNATURES ON FOLLOWING PAGE]
-16-
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease under seal
in four originals, all as of the day and year first above written:
LANDLORD: TENANT:
HIGHWOODS REALTY LIMITED M&I DATA SERVICES, a division of
PARTNERSHIP, a North Carolina Marshall & Ilsey Corporation
limited partnership
By: Highwoods Properties, Inc., its By: /s/ [ILLEGIBLE]^^
-----------------------
general partner
Its: CFO
------------------
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ Attest: /s/ [ILLEGIBLE]^^
------------------------- -----------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇,
Senior Vice President Its: Vice president
------------------
10/14/99 9/15/99
------------------------------ -------------------------------
Date Executed by Landlord Date Executed by Tenant
(CORPORATE SEAL)
-17-
Exh. 10.18
ADDENDUMS
Addendum 1 Workletter
Addendum 2 Expense Stop
Addendum 3 Option to Extend Lease Term
Addendum 4 Adjustment of Premises
The above addendums to this document have been omitted. The addendums will be
furnished supplementally to the Securities and Exchange Commission upon request.
Exh. 10.18
(continued)
EXHIBITS
Exhibit A Floor Plan
Exhibit B Rules and Regulations
The above exhibits to this document have been omitted. The exhibits will be
furnished supplementally to the Securities and Exchange Commission upon request.