Exhibit 10.19(a)
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▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
*********************
LEASE
*********************
Between
M&I DATA SERVICES,
A DIVISION OF ▇▇▇▇▇▇▇▇ & ILSLEY CORPORATION
----------------------
(Tenant)
And
TIAA REALTY, INC.
(Landlord)
LEASE
▇▇▇▇▇ Deer Business Park
▇▇▇▇▇ Deer, Wisconsin
DEFINITIONS................................................................ iii
SCHEDULE................................................................... 1
1. LEASING AGREEMENT........................................... 1
2. RENT........................................................ 2
A. Kinds.................................................. 2
B. Payments of Operating Cost
Share Rent and Tax Share Rent.......................... 2
C. Payment of Index Rent.................................. 3
D. Definitions............................................ 3
E. Rules of Interpretation and
Computation of Base Rent and
Rent Adjustments....................................... 4
3. PREPARATION AND CONDITION OF PREMISES,
POSSESSION AND SURRENDER OF PREMISES....................... 5
4. PROJECT SERVICES............................................ 6
A. Heat................................................... 6
B. Air Conditioning....................................... 6
C. Extra Hours............................................ 7
D. Elevators.............................................. 7
E. Electricity............................................ 7
F. Water.................................................. 7
G. Janitorial Service .................................... 7
H. Window Washing......................................... 7
I. Interruption of Service................................ 7
5. ALTERATIONS AND REPAIRS..................................... 7
6. USES OF PREMISES............................................ 8
7. BUILDING RULES AND GOVERNMENTAL
REGULATIONS................................................ 9
8. CLAIMS; INSURANCE; LIABILITY................................ 9
9. FIRE AND OTHER CASUALTY..................................... 10
10. RIGHTS RESERVED TO THE LANDLORD............................. 10
A. Name................................................... 10
B. Signs.................................................. 10
C. Windows................................................ 10
D. Service Contracts...................................... 10
E. Keys................................................... 11
F. Access for Repairs, etc................................ 11
G. Occupancy.............................................. 11
H. Rights to Conduct Businesses........................... 11
I. Heavy Equipment........................................ 11
J. Show Premises.......................................... 11
K. Close Project.......................................... 11
L. Substitution of Space.................................. 11
M. Use of Lock Box by Landlord............................ 11
N. Repairs and Alterations................................ 12
O. Other Rights........................................... 12
11. DEFAULT AND LANDLORD'S REMEDIES............................. 12
A. Defaults............................................... 12
B. Landlord's Remedies.................................... 12
12. HOLDOVER.................................................... 14
13. SUBORDINATION TO MORTGAGES AND GROUND LEASES................ 14
A. Subordination.......................................... 14
B. Termination of Ground Lease or Foreclosure
of Mortgage............................................ 15
C. Security Deposit....................................... 15
D. Notice and Right to Cure............................... 15
14. ASSIGNMENT AND SUBLETTING BY TENANT......................... 15
15. SALE BY LANDLORD............................................ 16
16. ESTOPPEL CERTIFICATE....................................... 16
17. SECURITY DEPOSIT........................................... 16
18. EXCUSE OF LANDLORD'S INABILITY
TO PERFORM; LANDLORD'S DEFAULT............................ 17
19. PERSONAL PROPERTY.......................................... 17
20. NOTICES.................................................... 17
21. QUIET POSSESSION........................................... 17
22. REAL ESTATE BROKER......................................... 17
23. CONDEMNATION............................................... 18
24. SPRINKLERS................................................. 18
25. MISCELLANEOUS.............................................. 18
A. Covenants Binding on Successors....................... 18
B. Date Payments are Due................................. 18
C. Meaning of "Re-entry" and
"Landlord"........................................... 18
D. Time is of the Essence................................ 18
E. No Option............................................. 18
F. Severability.......................................... 18
G. Governing Laws........................................ 18
H. Lease Modification.................................... 18
I. No Oral Modification.................................. 18
J. Litigation and Arbitration Costs...................... 18
K. Captions.............................................. 18
L. Remedies and Rights May Be
Exercised by Landlord in its Own
Name; Authority to Execute
This Lease........................................... 19
M. Payments to Affiliates................................ 19
N. Entire Agreement...................................... 19
O. Landlord's Title...................................... 19
P. Light and Air Rights.................................. 19
Q. Rights Reserved or Granted............................ 19
R. Meanings of Words..................................... 19
S. Rent not Based on Income.............................. 19
T. Non-Exclusivity....................................... 19
26. EXCULPATORY PROVISIONS..................................... 19
27. AUTHORITY.................................................. 20
APPENDIX A - PLAN OF THE PREMISES
APPENDIX B - CLEANING SCHEDULE
APPENDIX C - RULES AND REGULATIONS
APPENDIX D - TENANT IMPROVEMENT WORK AGREEMENT
1. TENANT IMPROVEMENT WORK
2. ADDITIONAL WORK
3. SUBSTANTIAL COMPLETION
4. ACCESS BY TENANT PRIOR TO COMMENCEMENT OF TERM
5. ACCEPTANCE OF PREMISES
6. MISCELLANEOUS
EXHIBIT A TO TENANT IMPROVEMENT WORK AGREEMENT - BUILDING STANDARDS
APPENDIX E - MORTGAGES CURRENTLY AFFECTING THE PROJECT DENFINITIONS
APPENDIX F - LIST OF EQUIPMENT
Section in Which
Term Term is Defined
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1. Additional Rent 2A(5)
2. Base Rent 2A(1)
3. Building Preamble
4. business hours 4A
5. Commencement Date 1
6. Comparison Year 2D(3)
7. Consumer Price Index 2D(4)
8. Corporate Base Rant 2E(3)
9. CPI Report 2C(2)
10. Fiscal Year 2D(5)
11. Force Majeure 18
12. Ground Lease 2D(2)
13. Holidays 4A
14. Index Rent 2A(4)
15. Landlord Preamble
16. mortgage 13B(3)
17. mortgagee 13B(3)
18. new premises 10(L)
19. Operating Cost Share Rent 2A(2)
20. Operating Costs 2D(2)
21. Operating Cost Report 2B(2)
22. Premises Preamble
23. Project Preamble
24. re-enter, re-entry 27C
25. Rent Tax 2D(1)
26. Rental Agents 2A
27. Required Improvements 9B
28. Restoration Delays 9C
29. Schedule Preamble
30. Taxes 2D(1)
31. Tax Report 2B(3)
32. Tax Share Rent 2A(3)
33. Tenant Preamble
34. Tenant's Proportionate Share 3(D)(6)
35. Term 1
36. Termination Date 1
37. Work 5A
LEASE
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▇▇▇▇▇ DEER BUSINESS PARK
▇▇▇▇▇ DEER, WISCONSIN
THIS INDENTURE is made as of the 15 day of February, 1999 between TIAA
Realty, Inc., a Delaware corporation (hereinafter referred to as "Landlord") and
the tenant named in Item 1 of the Schedule (hereinafter referred to as
"Tenant"). The term "Project" when used herein refers to the land (the "Land")
and Building No. 6 (the "Building") located at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ in the
▇▇▇▇▇ Deer Business Park, ▇▇▇▇▇ Deer, Wisconsin (including, without limitation,
any and all easements adjacent or appurtenant thereto and other areas used in
common with the development commonly known as ▇▇▇▇▇ Deer Business Park),
together with the vehicular drives, the above and below ground parking
facilities, and all other structures and improvements now or hereafter located
on the Land. "Premises" when used herein refers to that part of the Project
leased to Tenant. "▇▇▇▇▇ Deer Business Park" when used herein refers to the
larger real estate development of which the Project is a part and includes the
following buildings located at the following addresses:
Building No. Address of Building
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1 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
2 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
3 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
4 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
5 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
6 4300 West ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
8 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
9 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
10 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
The following Schedule (the "Schedule") is an integral part of this Lease.
SCHEDULE
1. Name of Tenant: M&I Data Services, a Division of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
Corporation
2. Floor(s) or room(s) of Premises: See Appendix A attached hereto. The
Premises are comprised of 34,246 square feet of space currently leased by
Tenant at the Project (the "Existing Space") as shown on Appendix A-1
------------
attached hereto and an additional 25,940 square feet of space located at
the Project (the "Additional Space") as shown on Appendix A-2 attached
------------
hereto.
3. Net Rentable Square Feet in Premises:................... 60,186 square feet
4. Tenant's use of Premises: General office purposes consistent with a
first-class office building.
5. Base Rent (per year):............................
Base Rent
Monthly Per Square
Annual Installments of Foot
Time Period Base Rent Base Rent (60,186 sq ft)
----------- --------- --------- ----
Year 1 $415,283.40 $34,606.95 $6.90
Year 2 $438,755.94 $36,562.99 $7.29
Year 3 $454,404.30 $37,867.02 $7.55
Year 4 $470,654.52 $39,221.21 $7.82
Year 5 $486,904.74 $40,575.39 $8.09
Year 6 $504,358.68 $42,029.89 $8.38
Year 7 $521,210.76 $43,434.23 $8.66
The term "Year 1" means the period commencing on the Commencement Date and
ending on the last day of the twelfth calendar month following the Commencement
Date; provided, however, if the Commencement Date is not the first day of the
calendar month, Year 1 shall end twelve calendar months after the first day of
the calendar month immediately succeeding the calendar month in which the
Commencement Date occurs. The term "Year 2" shall mean the consecutive twelve-
month period commencing on the first day following the end of Year 1. The term
"Year 3" shall mean the consecutive twelve-month period commencing on the first
day following the end of Year 2. The term "Year 4" shall mean the
consecutive twelve-month period commencing on the first day following the end of
Year 3. The term "Year 5" shall mean the consecutive twelve-month period
commencing on the first day following the end of Year 4. The term "Year 6" shall
mean the consecutive twelve-month period commencing on the first day following
the end of Year 5. The term "Year 7" shall mean the consecutive twelve-month
period commencing on the first day following the end of Year 6.
Landlord agrees to accept Base Rent payments using ACH and Landlord agrees to
execute and approve the paperwork necessary to implement such system.
Rent due and payable with respect to the Existing Space prior to the
Commencement Date, shall be paid pursuant to the terms and conditions of the
Prior Lease (as hereinafter defined).
6. Monthly Installments of Base Rent:......................... See Paragraph 5
7. Tenant's Proportionate Share:.................................... 96.97%
8. Net Rentable Square Feet in Building:................... 62,065 square feet
9. Security Deposit payable on execution of Lease:...................$ -0-
10. Tenant's address for notices before possession date: At the Existing Space
11. Tenant's Real Estate Broker used for this Lease: None
12. Tenant Improvements, if any: Pursuant to Tenant Improvement Work Agreement
attached hereto as Appendix D.
13. Date Tenant Plans are due from Tenant including Special Work, if any:
.............. See Appendix D attached hereto.
14. Commencement Date: ............... The Commencement Date of this Lease with
respect to both the Additional Space and the Existing Space shall be the
earlier of (a) the date of Substantial Completion (as defined in the Tenant
Improvement Work Agreement attached hereto as Appendix D) of the Additional
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Space or (b) the date Tenant occupies the Additional Space or any part
thereof.
15. Term/Termination Date: The term of the Lease shall be seven (7) years,
ending 84 calendar months after the Commencement Date, provided that if the
Commencement Date is not the first day of a calendar month, the term shall
end 84 calendar months after the first day of the calendar month
immediately succeeding the calendar month in which the Commencement Date
occurs, unless extended as herein provided.
16. Reasonable Consent or Approval:.................Except as otherwise
expressly set forth herein, wherever the consent or approval of either
Landlord or Tenant is required by the provisions of this Lease, such party
shall not unreasonably withhold or delay such consent or approval.
1. LEASING AGREEMENT. Landlord leases to Tenant, and Tenant leases from
Landlord, for the term (the "Term") set forth on the Schedule, commencing on the
commencement date (the "Commencement Date") set forth on the Schedule and ending
on the
termination date (the "Termination Date") set forth on the Schedule, unless
sooner terminated or extended as herein provided, the Premises described on the
Schedule and outlined on the plan attached hereto and made a part hereof as page
1 of Appendix A. The Premises constitute a portion of the Building located on
the Land, which is legally described on page 2 of Appendix A. As provisions of
said lease, Landlord and Tenant covenant and agree as follows:
2. RENT.
A. Kinds. Tenant agrees to pay Rent, beginning as of the
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Commencement Date, to Landlord's rental agents, ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Management
Corporation of Wisconsin (the "Rental Agents") at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or to such other person or at such other place as
Landlord from time to time designates in a written notice to Tenant, in coin or
currency which at the time of payment is legal tender for the payment of public
and private debts in the United States of America, the aggregate of the
following, all of which are Rent reserved under this Lease:
(1) Base Rent to be paid in monthly installments in advance on
---------
or before the first day of each month of the Term of this Lease in the
amount set forth on the Schedule, provided that the first monthly
installment of Base Rent will be paid by the Tenant concurrently with
the execution of this Lease.
(2) Operating Cost Share Rent in an amount equal to the Tenant's
-------------------------
Proportionate Share of the Operating Costs for the applicable fiscal
year of the lease. Operating Cost Share Rent shall be paid monthly in
advance in an estimated amount, as adjusted by Landlord not more often
than annually. Definitions of Operating Costs, Tenant's Proportionate
Share and the method for billing and payment of Operating Cost Share
Rent are set forth in Sections 2B and 2D.
(3) Tax Share Rent in an amount equal to the Tenant's
--------------
Proportionate Share of Taxes for the Taxes for the applicable fiscal
year of the lease. Tax Share Rent shall be paid monthly in advance in
an estimated amount, as adjusted by Landlord not more often than
annually. Definitions of Taxes, Tenant's Proportionate Share and the
method for billing and payment of Tax Share Rent are set forth in
Sections 2B and 2D.
(4) [Reserved]
(5) Additional Rent consisting of all of the sums, liabilities,
---------------
obligations and other amounts (excepting Base Rent, Operating Cost
Share Rent, and Tax Share Rent) which Tenant is required to pay or
discharge pursuant to this Lease (including, without limitation, any
amounts which this Lease provides shall be Tenant's cost or expense),
together with interest for late payment thereon, all as hereafter
provided.
B. Payment of Operating Cost Share Rent and Tax Share Rent.
-------------------------------------------------------
(1) Payment of Estimated Operating Cost Share Rent and Tax Share
------------------------------------------------------------
Rent. Landlord shall estimate the Operating Costs and Taxes of the
----
Project from time to time each year. Such estimates may be revised by
Landlord whenever it obtains information relevant to making such
estimates more accurate but not more often than annually. Such
estimates will generally (but need not) be issued after the beginning
of a fiscal year and revised upon the determination of the final real
estate tax assessment or final real estate tax rate for the Project.
Within ten (10) days after notice from Landlord setting forth an
estimate of Operating Costs for a particular fiscal year, Tenant shall
pay Landlord an amount equal to one-twelfth (1/12th) of Tenant's
Proportionate Share of such estimated costs multiplied by the number
of months that have elapsed in such fiscal year to the date of such
payment, minus payments of estimated Operating Cost Share Rent
previously paid for said period. Thereafter on the first day of each
month, Tenant shall pay monthly until a new estimate of Operating
Costs is applicable, one-twelfth (1/12th) of Tenant's Proportionate
Share of the estimated Operating Costs.
Within ten (10) days after notice from Landlord setting forth an
estimate of Taxes for a particular fiscal year, Tenant shall pay
Landlord an amount equal to one-twelfth (1/12th) of Tenant's
Proportionate Share of such estimated costs multiplied by the number
of months that have elapsed in such fiscal year to the date of such
payment, minus payments of estimated Tax Share Rent previously paid
for said period. Thereafter on the first day of each month, Tenant
shall pay monthly until a new estimate of Taxes is applicable, one-
twelfth (1/12th) of Tenant's Proportionate Share of the estimated
Taxes.
(2) Correction of Operating Cost Share Rent. As soon as
---------------------------------------
reasonably possible after the end of each fiscal year, Landlord shall
deliver to Tenant a report (the "Operating Cost Report" setting forth
(a) the actual Operating Costs for the preceding fiscal year, (b) the
amount of Operating Cost Share Rent due to Landlord for such
preceding fiscal year, and (c) the amount of Operating Expense Share
Rent paid by the Tenant in and allocable to such fiscal year. On or
before twenty (20) days after receipt of such report, Tenant shall pay
to Landlord the amount of Operating Cost Share Rent due for the
preceding fiscal year (or a portion thereof if this Lease was not in
effect for the entire fiscal year) minus any payments made by Tenant
for such fiscal year. If Tenant's estimated payments of Operating Cost
Share Rent exceed the amount due Landlord for the fiscal year in
question, Landlord shall either refund any such amount to Tenant or
apply any such amount as a credit against Tenant's other obligations
under Section 2(A)(2) of this Lease.
(3) Correction of Tax Share Rent. At any time during any fiscal year, when
----------------------------
such information becomes available, Landlord shall deliver to Tenant a report
(the "Tax Report") setting forth (a) the actual Taxes for the preceding fiscal
year, (b) the amount of Tax Share Rent due to Landlord for such preceding fiscal
year, and (c) the amount of Tax Share Rent paid by the Tenant in and allocable
to such fiscal year. On or before twenty (20) days after receipt of such report,
Tenant shall pay to Landlord the amount of Tax Share Rent due for the preceding
fiscal year (or a portion thereof if this Lease was not in effect for the entire
fiscal year) minus any payments made for such fiscal year. If Tenant's estimated
payments of Tax Share Rent exceed the amount due Landlord for the fiscal year in
question, Landlord shall either refund any such amount to Tenant or apply any
such amount as a credit against Tenant's other obligations under Section 2(A)(3)
of this Lease.
C. [Reserved]
D. Definitions:
-----------
(1) Taxes. "Taxes" shall mean any and all federal, state and local
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governmental taxes, assessments and charges of any kind or nature, whether
general, special, ordinary or extraordinary, which Landlord shall pay or become
obligated to pay because of or in connection with the ownership, leasing,
renting, management, control or operation of the Project or of the personal
property, fixtures, machinery, equipment, systems and apparatus located therein
or used in connection therewith or with regard to Landlord's proportionate share
of common area expenses relating to the development commonly known as ▇▇▇▇▇
Deer Business Park. Taxes shall include, without limitation, real estate
taxes, personal property taxes, sewer rents, water rents, assessments (special
or otherwise), transit taxes, and ad valorem taxes; provided, however, if
Landlord, at its sole option, elects to pay any special assessment in
installments, then for the purpose of calculating Tenant's Tax Share Rent, only
the amount of the installment due each year during the term of this Lease shall
be included in Taxes. Taxes shall also include all fees, costs and expenses
(including, without limitation, legal fees and court costs) paid by Landlord in
connection with protesting or contesting, or seeking a refund or reduction of,
any of the aforesaid Taxes, regardless of whether the Landlord is ultimately
successful. Tenant shall not be required to pay costs in excess of any amounts
recovered in connection with the protest or contest or seeking of a refund or
reduction unless Tenant gives prior consent to such protest or contest or
seeking of a refund or reduction. If at any time during the term hereof, a tax
or excise or sales tax on rents or income or other tax however described (herein
called "Rent Tax") is levied or assessed by the United States or the State of
Wisconsin, or any political subdivision thereof, on account of the rents
hereunder or the interest of Landlord under this Lease, such Rent Tax shall
constitute and be included in Taxes, provided, however, that in no event shall
Tenant be obligated (a) to pay for any year any greater amount as a result of
such Rent Tax than would have been payable by Tenant had the rentals paid to
Landlord under all Project leases (being the rentals upon which such taxes are
imposed) been the sole taxable income of Landlord for the year in question or
(b) to pay or to reimburse Landlord for any tax of any kind assessed against
Landlord on account of any such Rent Tax having been reimbursed to Landlord by
Tenant or any third party.
For the purposes of determining Taxes for any given fiscal year, the amount
to be included for such fiscal year (a) from special taxes or assessments
payable in installments, shall be the amount of the installments (and any
interest) due and payable during such fiscal year, (b) from all other Taxes,
shall be the amount accrued, assessed or otherwise imposed for such fiscal year
without regard to when any such Taxes are payable, and (c) from any adjustment
(including, without limitation, a refund) to any Taxes by the taxing authority,
when such adjustment has resulted in a corresponding adjustment payment by or
to Landlord, shall constitute an adjustment to Taxes for the fiscal year during
which such adjustment is made or received by Landlord, as the case may be.
Tenant shall not be responsible for any installments of special assessments with
respect to the Additional Space levied prior to the Commencement Date. Tenant
shall be responsible for any installments of special assessments with respect
to the Existing Space levied prior to the Commencement Date, if Tenant is
responsible for those assessments under the Prior Lease.
Taxes shall not include any net income (except Rent Tax as hereinabove
provided), capital, stock, succession, transfer, franchise, gift, estate or
inheritance taxes, unless the same shall be imposed in lieu of all or any
portion of Taxes.
(2) Operating Costs. "Operating Costs" shall mean any expenses, costs
---------------
and disbursements (other than Taxes) of every kind and nature, paid or incurred
by Landlord in connection with the ownership, leasing, management, maintenance,
operation and repair of all or any part of the Project (adjusted for vacancy as
hereafter provided), in connection with the personal property, fixtures,
machinery, equipment, systems and apparatus located in the Project or used in
connection therewith and in connection with Landlord's proportionate share of
common area expenses, costs and disbursements relating to the development
commonly known as ▇▇▇▇▇ Deer Business Park. Operating Costs shall not include
(a) costs of alterations of tenant premises; (b) costs of
capital improvements, except for (i) any capital improvements which are intended
to reduce Operating Costs, (ii) any capital improvements which Landlord is
required to make pursuant to, or which are necessary to keep the Project in
compliance with, all applicable governmental rules and regulations applicable
from time to time to the Project and (iii) any costs for capital improvements
included in common area charges for ▇▇▇▇▇ Deer Business Park (the foregoing
capital improvements that are included within Operating Costs are collectively
referred to herein as the "Included Capital Items"); (c) depreciation (except on
any Included Capital Items); (d) interest and principal payments on mortgages or
any rental payments on any ground or other underlying leases subject to which
Landlord holds its interest in the Project (hereinafter, referred to
individually as a "Ground Lease" and collectively as "Ground Leases"), and other
debt costs, if any; (e) real estate brokers' leasing commissions or
compensations; (f) any cost or expenditure (or portion thereof) for which
Landlord is reimbursed, whether by insurance proceeds or otherwise (Operating
Cost Share Rent, Tax Share Rent provided for in any tenant leases are not
reimbursements); and (g) the cost of any kind of service furnished to any other
office tenant of the Project which Landlord does not make available to Tenant
hereunder; and (h) costs incurred by Landlord for alterations, renovations,
improvements, decoration or painting, architectural, legal and/or engineering
services, if any, for other tenants of the Building, other than those costs
incurred in connection with the common areas; (i) costs of repairs or other work
occasioned by fire or other casualty or by the exercise of eminent domain, for
which Landlord is reimbursed by insurance or a condemnation award; (j) leasing
or sales commissions, attorneys' fees and other professional fees, costs and
disbursements and other expenses incurred in connection with negotiations or
disputes with other tenants, other occupants, or prospective tenants or
occupants of the Building; (k) costs incurred due to the violation by Landlord
of the terms and conditions of any lease with any other tenant of the Building;
(l) penalties for failure to pay taxes when due, unless such failure is caused
by Tenant; (1) overhead and profit paid to subsidiaries or affiliates of
Landlord for services to the Building to the extent that the costs thereof
exceed the competitive costs of such services in the Milwaukee, Wisconsin
metropolitan area; (m) any compensation paid to clerks, attendants or other
persons in commercial concessions operated by Landlord; (n) advertising and
promotional expenditures; (o) any fines or penalties incurred due to violations
by Landlord of any governmental rule or authority, unless such fines or
penalties or violations were caused by or incurred because of Tenant; (p)
expenses relating to refinancing or sale of the Building; (q) costs of repairing
any items covered by warranty or guaranty, if Landlord elects to pursue such
warranty or guaranty and if Landlord is actually reimbursed under the warranty
or guaranty; (r) expenses in connection with services or benefits provided to
other tenants or occupants of the Building, which services or benefits Tenant is
not entitled to receive under this Lease; (s) cost of utility or other services,
if any, separately metered and provided to vacant space or premises occupied by
other tenants (except for any utility or services provided to common areas); (t)
any management or administrative fee which in the aggregate exceeds the
competitive market rates for management or administrative fees for similar
buildings in the Milwaukee, Wisconsin metropolitan area; and (u) costs incurred
by Landlord in connection with any remediation at the Project required by any
governmental authority as a result of a violation at the Project of
environmental laws, unless the violation of the environmental laws was caused by
Tenant, its employees, agents, invitees or customers. The annual cost to be
included as an Operating Cost for any Included Capital Item shall be an amount
equal to the cost of said Included Capital Item (including any costs associated
with financing the construction or installation or purchase of the improvement
if the improvement results in a reduction in the level of Operating Costs over
the life of the improvement) divided by the number of years in the depreciable
life of the Included Capital Item as reasonably determined by Landlord. If the
cost of a repair, alteration or replacement of any structural portion of the
Building, the parking lot serving the Building, or any of the major systems
serving the Building (any such repair, alteration or replacement being herein
referred to as a "Repair") exceeds $25,000.00, then the annual cost to be
included as an Operating Cost for any such Repair shall be the cost of said
Repair (including any costs associated with financing the construction or
installation of the Repair or purchases made with respect to the Repair) divided
by the number of years in the depreciable life of the Repair as reasonably
determined by Landlord. Notwithstanding anything to the contrary contained
herein, for the purpose of calculating Tenant's Proportionate Share of Operating
Costs, the "controllable Operating Costs" for each fiscal year of the term of
the Lease, other than the first fiscal year of the term of this Lease, shall not
exceed 105% of the amount of such controllable Operating Costs for the
immediately preceding year. The term "controllable Operating Costs" means those
items included in the definition of Operating Costs except for insurance,
utilities, third party heating, ventilating and air conditioning, and expenses
incurred pursuant to third-party contracts where labor rates of such third
parties are controlled by labor union contracts. In addition, Taxes are not
included in the term "controllable Operating Costs."
If during all or any portion of any fiscal year the Project is not fully
rented and occupied by tenants, Landlord may elect to make an appropriate
adjustment of Operating Costs for such fiscal year, employing sound accounting
and management principles, to determine the Operating Costs that would have been
paid or incurred by Landlord had the Project been fully rented and occupied for
the entire fiscal year, and the amount so determined shall be deemed to have
been the Operating Costs for such fiscal year. If Landlord is not furnishing any
particular work or service (the cost of which if performed by Landlord would
constitute an Operating Cost) to a tenant who has undertaken to perform such
work or service in lieu of the performance thereof by Landlord for all or any
portion of a fiscal year, Operating Costs for such fiscal year shall be deemed
to be increased by an amount equal to the additional Operating Costs which
reasonably would have been incurred during such fiscal year by Landlord if it
had, at its own expense, furnished such work or service to such tenant.
Notwithstanding anything contained herein to the contrary, the provisions of
this paragraph with respect to adjustment of Operating Costs for vacancy, or as
a result of the performance by tenants of certain services, shall apply only to
Operating Costs which are variable and which increase as occupancy in the
Project increases and shall not apply to any Operating Costs which do not vary
with the amount of occupancy in the Project. Further, in making its adjustment
of Operating Costs for vacancy or as a result of the performance by tenants of
certain services, Landlord shall not charge more than those Operating Costs
actually incurred by Landlord.
(3) Comparison Year. "Comparison Year" means each fiscal year of the Lease
---------------
through and including the years in which the term of this Lease (including any
extensions or renewals thereof) commences and ends. The first and last
Comparison Year may contain less than twelve (12) calendar months.
(4) Consumer Price Index. "Consumer Price Index" means the Consumer
--------------------
Price Index for All Urban Consumers, United States City Average, All Items
(1982-84 = 100) of the United States Bureau of Labor Statistics. The Consumer
Price Index for any given Comparison Year shall be the December monthly index
for that year, except that for the last Comparison Year, the Consumer Price
Index shall be the monthly index for the last calendar month (whether whole or
partial) of the term of this Lease. If the manner in which such Consumer Price
Index as determined by the Bureau of Labor Statistics shall be revised, an
adjustment shall be made in such revised index which would produce results
equivalent, as nearly as possible, to those which would have been obtained if
the Consumer Price Index had not been so revised. If the Consumer Price Index
shall become unavailable to the public because publication is discontinued, or
otherwise, Landlord will substitute therefor a comparable index based upon
changes in the cost of living or purchasing power of the consumer dollar
published by any other governmental agency or, if no such index shall be
available, then a comparable index published by a major bank or other financial
institution or by a university or a recognized financial publication.
(5) Fiscal Year. The term "fiscal year" shall mean any 12 month period
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(including, without limitation, the calendar year) which Landlord may from time
to time select as the fiscal year of the Project, provided that the first fiscal
year and the last fiscal year of the Term may contain less than twelve (12)
months.
(6) Tenant's Proportionate Share. "Tenant's Proportionate Share" shall
----------------------------
mean the percentage set forth as Item 7 on the Schedule.
E. Rules of Interpretation and Computation of Base Rent and Rent Adjustments:
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(1) If this Lease commences on other than the first day of a month, the
Base Rent, Operating Cost Share Rent, and Tax Share Rent for the month in which
this Lease so begins shall be prorated based upon the number of days of the
Term falling within such month. If the Term of this Lease commences on any day
other than the first day of the designated fiscal year, or if the Term of this
Lease ends on any day other than the last day of the designated fiscal year,
any Operating Cost Share Rent, and Tax Share Rent due to Landlord with respect
to such fiscal year shall be prorated based on the number of days in the Term
falling within such fiscal year.
(2) All Rent shall be paid to Landlord without deduction or offset at the
office of the Rental Agent in the Project, or to such other person or place as
Landlord may from time to time designate in writing. The Tenant's covenants to
pay Rent shall be independent of every other covenant set forth in this Lease.
(3) Any sum due from Tenant to Landlord not paid when due shall bear
interest from the date due until the date paid at the annual rate equal to the
lesser of: (i) the highest lawful rate, or (ii) a rate of interest equal to the
sum of three percent (3%) plus the "Corporate Base Rate". The phrase "Corporate
Base Rate" means that rate of interest most recently announced by the Firstar
Bank Milwaukee, N.A. or its successor (collectively, the "First") as the
corporate base rate, changing automatically and simultaneously with each
announced change by the First in the Corporate Base Rate such change to be
effective as of and on the date
announced by the First as the effective date for the change in the
Corporate Base Rate. A certificate made by an officer of the First stating
the Corporate Base Rate in effect on a certain day, or Corporate Base Rates
in effect during a certain period, shall, for purposes of this Lease, be
conclusive evidence of the First's Corporate Base Rate or Rates on said day
or during such period. In the event that the First ceases to use the term
Corporate Base Rate in setting a base rate of interest for commercial
loans, then the Corporate Base Rate herein shall be determined by reference
to the rate used by the First as a base rate of interest for commercial
loans as the same shall be designated by the First to the Landlord. The
payment of such interest shall not excuse or cure any default of Tenant
under this Lease.
(4) If Tenant is in default on any of its obligations under this
Lease, Tenant shall not be entitled to any refund of any sum which may
otherwise be due it by application of any provision of this Lease until any
and all of Tenant's defaults under this Lease are cured by Tenant.
(5) If changes are made to this Lease or to the Project changing the
number of rentable square feet contained in the Premises or in the Project,
Tenant's Proportionate Share shall be appropriately adjusted and the
computations of Rent shall be appropriately adjusted so as to take into
account the different Tenant's Proportionate Share figures applicable
during each portion of the applicable fiscal year. Tenant's Proportionate
Share is based on the total net rentable square feet in the Building as set
forth in Item 8 in the Schedule and total rentable square feet in the
Premises initially demised hereunder as set forth in Item 3 in the
Schedule.
(6) Landlord shall maintain books and records in accordance with
sound accounting and management practices, reflecting the Operating Costs
and Taxes. In the event of any dispute as to any Operating Cost Share Rent
or Tax Share Rent, Tenant shall have the right to inspect Landlord's
accounting records relative to Operating Costs and Taxes at Landlord's
accounting office upon reasonable prior notice during normal business hours
during the sixty (60) days following the furnishing by Landlord to Tenant
of either of the Operating Cost Report and the Tax Report. Unless either
party shall take written exception to any item in any such report within
said sixty (60) day period, such report shall be considered as final and
accepted by Tenant and Landlord. Any payment due to the Landlord as shown
on the Operating Cost Report or the Tax Report, whether or not written
exception is taken thereto, shall be made by the Tenant within twenty (20)
days after the Landlord shall have submitted the Operating Cost Report or
the Tax Report (as the case may be) without prejudice to any such written
exception. If Tenant makes such timely written exception, a certification
as to the proper amount of Operating Cost Share Rent and Tax Share Rent
shall be made by an independent certified public accountant mutually
acceptable to Landlord and Tenant, which shall be final and conclusive.
Tenant agrees to pay the cost of such certification unless the
certification shows that Landlord's calculation as to the combined amount
of Operating Cost Share Rent and Tax Share Rent exceeded by more than five
percent (5%) the combined amount of Operating Cost Share Rent and Tax Share
Rent shown by the certification. Landlord shall pay for the cost of such
certification if the certification shows that Landlord's calculation as to
the combined amount of Operating Cost Share Rent and Tax Share Rent
exceeded by more than five percent (5%) the combined amount of Operating
Cost Share Rent and Tax Share Rent shown by the certification.
(7) In the event of the termination of this Lease by expiration of
the stated Term or for any other cause or reason whatsoever prior to the
determination of Operating Cost Share Rent, Tax Share Rent, or Additional
Rent, Tenant's agreement to pay any such sum shall survive termination of
the Lease and Tenant shall pay any such amount due to Landlord within
fifteen (15) days after being billed therefor. Tenant's obligation to pay
Base Rent shall also survive the expiration or termination of this Lease.
In the event of the termination of this Lease by expiration of the stated
Term or for any other cause or reason whatsoever, except the default by
Tenant under any of the terms or provisions of this Lease, prior to the
determination of Operating Cost Share Rent, or Tax Share Rent as
hereinabove set forth, Landlord's agreement to refund any excess in the
amount of the estimated payments made by Tenant on account of Operating
Cost Share Rent, or Tax Share Rent over the actual amount thereof accruing
or payable up to the time of the termination or expiration shall survive
termination of the Lease and the Landlord shall pay the amount due to
Tenant within fifteen (15) days of Landlord's determination of such amount.
(8) No calculation, determination or payment of Operating Cost Share
Rent or Tax Share Rent, by virtue of the operation of the Rent adjustment
provisions under this Section 2 shall result in the payment by Tenant in
any fiscal year during the Term of less than the Base Rent shown on the
Schedule.
(9) If any Operating Cost though paid in one (1) fiscal year, relates
to more than one (1) fiscal year, at the option of the Landlord, such
Operating Cost may be proportionately allocated among such related fiscal
years. If any Operating Cost relates to more than one parcel of property,
at the option of the Landlord, such Operating Cost may be allocated among
the parcels of property to which it relates.
(10) All payments made with respect to Operating Cost Share Rent, or
Tax Share Rent (including any monthly payments made on the basis of
Landlord's estimates thereof) may be commingled and need not be segregated
by the Landlord and may be held and utilized by the Landlord without
payment to the Tenant of interest or any sums for the use of any of said
amounts.
3. PREPARATION AND CONDITION OF PREMISES, POSSESSION AND SURRENDER OF
PREMISES.
A. Except to the extent expressly indicated in the Tenant Improvements
item on the Schedule, and as otherwise expressly set forth in Appendix D and
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except for latent defects with respect to the Tenant Improvement Work performed
by Landlord in the Additional Space pursuant to Appendix D attached hereto,
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Landlord is leasing the Premises to Tenant "as is", without any representations
or warranties of any kind (including, without limitation, any express or implied
warranties of merchantability, fitness or habitability) and without any
obligation on the part of the Landlord to alter, remodel, improve, repair,
decorate or clean the Premises or any part thereof. If so indicated in the
Tenant Improvements item on the Schedule, Landlord shall cause the Premises to
be completed in accordance with the plans, specifications, and agreements and on
the terms, conditions and provisions as provided in the Tenant Improvement Work
Agreement (Appendix D) and Exhibit A thereto (Building Standards) both of which
are attached hereto and made a part of this Lease.
B. During the term of this Lease, Tenant shall maintain the Premises in
as good condition as when Tenant took possession, or as when completed after
possession in the event that Tenant takes possession prior to the Completion
Date (loss or damage caused by action
of the elements, Acts of God and the public enemy, ordinary wear and fire,
condemnation and other casualty insured against by Landlord excepted) failing
which Landlord may but need not restore the Premises to such good condition
and Tenant shall pay the cost thereof. At the termination of this Lease or at
the termination of Tenant's right to possession without termination of this
Lease, Tenant shall, subject to Sections 3C and 3D below, return the Premises
to Landlord broom clean and in good condition as described in the immediately
preceding sentence or Landlord may, but need not, restore the Premises to such
good condition and Tenant shall pay the cost thereof.
C. Unless otherwise provided by written agreement, signed by Landlord,
all Work (hereinafter defined), partitions, hardware, light fixtures and
other fixtures (except trade fixtures and movable furniture and equipment
belonging to Tenant) in or upon the Premises, whether placed there by Landlord
or Tenant, shall be surrendered with the Premises at the termination of this
Lease, by lapse of time or otherwise, or at the termination of Tenant's right
to possession without termination of this Lease, and shall become Landlord's
property without compensation to Tenant; provided, however, that if prior to any
such termination of the Lease, or of the right to possession, or within ten (10)
days thereafter, Landlord so directs by written notice, Tenant shall promptly
remove any Work, partitions, hardware, light fixtures or other fixtures placed
in or upon the Premises by Tenant and designated in such notice and repair any
damage to the Premises caused by such removal, failing which Landlord may remove
the same and repair the Premises and Tenant shall pay the cost thereof to
Landlord upon demand.
D. Tenant shall also remove its furniture, movable equipment, trade
fixtures and all other items of personal property including the UPS system, if
required by Landlord, from the Premises prior to the end of the Term or any
extension thereof, or within thirty (30) days after the early termination of
this Lease for any reason, or of the termination of Tenant's right of
possession; and if Tenant does not remove such property, at Landlord's election:
(i) Tenant shall be conclusively presumed to have conveyed the same to Landlord
under this Lease as a ▇▇▇▇ of sale without further payment or credit by Landlord
to Tenant, (ii) Tenant shall be conclusively presumed to have forever abandoned
such property, and without accepting title thereto, Landlord may, at Tenant's
expense, remove, store, destroy, discard or otherwise dispose of all or any part
thereof in any manner that Landlord shall choose without incurring liability
to Tenant or to any other person, and Tenant shall pay to Landlord, upon demand,
any and all reasonable expenses incurred in taking any of such actions. In no
event shall Landlord ever become or accept or be charged with the duties of a
bailee (either voluntary or involuntary) of any personal property; and the
failure of Tenant to remove all such property from the Premises and the Project
shall forever bar Tenant from bringing any action or asserting any liability
against Landlord with respect to any such property which Tenant fails to remove.
During the first thirty (30) days after the early termination of this Lease for
any reason, or of the termination of Tenant's right of possession, Landlord may,
at its option, remove and store any personal property not removed from the
Premises by the Tenant, at the risk cost and expense of Tenant, and Landlord
shall in no event be responsible for the value, preservation and safe keeping
thereof. Tenant shall pay to Landlord, upon demand, any and all reasonable
expenses incurred by Landlord in connection with such removal and storage.
Notwithstanding anything to the contrary contained in this Section 3, Tenant
shall not be required to remove any part of the Tenant Improvement Work done
pursuant to Appendix D or its security system or any other improvements or
----------
alterations consented to by Landlord; provided, however, Tenant shall be
permitted to remove its security system as long as Tenant repairs all damage to
the Premises caused by such removal.
E. All obligations of the Tenant hereunder shall survive the expiration
of the Term or sooner termination of this Lease.
F. Except as may be otherwise set forth on Appendix D and except for
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latent defects with respect to the Tenant Improvement Work performed by
Landlord in the Additional Space pursuant to Appendix D attached hereto.
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Tenant's taking possession of the Premises or any portion thereof shall be
conclusive evidence that the Premises or such portion were then in good order,
repair and satisfactory condition. Landlord may authorize Tenant to take
possession of all or any part of the Premises prior to the Commencement Date.
If Tenant does take possession pursuant to such authorization, all of the
covenants and conditions of this Lease shall apply to and shall control such
pre-term occupancy. Rent for such pre-term occupancy shall be paid upon
occupancy and on the first day of each calendar month thereafter at the rate
set forth in Section 2A hereof. If the Premises are occupied for a fractional
month, such Rent shall be prorated on a per diem basis.
4. PROJECT SERVICES.
So long as Tenant is not in default hereunder, Landlord agrees to furnish
services to the Tenant without charge except for Operating Cost Share Rent, or
as otherwise specifically provided herein, as follows:
A. Heat. Landlord shall furnish heat to provide a temperature condition
----
required, in Landlord's reasonable judgment, for comfortable occupancy of the
Premises under normal business operations in the absence of machines or
equipment which may affect the temperature otherwise maintained in the Premises.
Such heat shall be provided daily during business hours (Monday through Friday
from 8:00 a.m. to 6:00 p.m., and Saturday from 8:00 a.m. to 1:00 p.m., Holidays
(hereinafter defined) excepted). Tenant agrees to keep and cause to be kept
closed all windows in the Premises and at all times to cooperate fully with
the Landlord in the operation of the heating system and to abide by all
reasonable regulations and requirements which Landlord may prescribe to permit
the proper functioning and protection of the heating system. Landlord reserves
the right to stop the heating system when necessary by reason of accident or
emergency or for repairs, alterations, replacements or improvements, which in
the judgment of the Landlord are desirable or necessary, until said repairs,
alterations, replacements or improvements shall have been completed. For
purposes of this Lease "Holidays" shall mean New Year's Day, Memorial Day,
Independence Day, Labor Day, Thanksgiving Day, Christmas Day and any other
national or state holidays observed by the majority of office tenants in the
Milwaukee metropolitan area, now or hereafter established, that may be
designated in writing by Landlord to Tenant from time to time. Landlord agrees
to make any repairs to the heating system promptly and with due diligence.
B. Air Conditioning. Landlord shall furnish air conditioning to provide a
----------------
temperature condition required, in Landlord's reasonable judgment, for
comfortable occupancy of the Premises under normal business operations in the
absence of machines or equipment which may affect the temperature otherwise
maintained in the Premises. Such air conditioning shall be provided daily during
business hours (Monday through Friday from 8:00 a.m. to 6:00 p.m., and Saturday
from 8:00 a.m. to 1:00 p.m., Holidays excepted). Tenant agrees to keep and cause
to be kept closed all windows in the Premises and at all times to cooperate
fully with the Landlord in the operation of said system and to abide by all
reasonable regulations and requirements which Landlord may prescribe to permit
the proper functioning and protection of the air conditioning system. Landlord
reserves the right to stop the air conditioning system when necessary by reason
of accident or emergency or for repairs, alterations, regular maintenance
replacements or improvements, which in the judgment of the Landlord are
desirable or
necessary, until said repairs, alterations, regular maintenance replacements or
improvements shall have been completed. Landlord agrees to make any repairs to
the air conditioning system promptly and with due diligence.
Whenever heavy concentration of personnel, motors, machines or equipment,
including telephone equipment, used in the Premises adversely affects the
temperature otherwise maintained by the air conditioning system, Landlord
reserves the right to install supplementary air conditioning units in the
Premises and the cost thereof, including all of the costs relating to the
installation and the cost of operation and maintenance thereof, shall be
Additional Rent hereunder and shall be paid by Tenant to Landlord upon demand.
C. Extra Hours. Landlord shall also furnish heat and air conditioning
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after business hours, on the condition that Tenant gives Landlord not less than
twenty-four (24) hours' prior notice of Tenant's needs for such additional
heating or air conditioning, and provided that Tenant pays to Landlord its then
current charges for such additional heating or air conditioning. Notwithstanding
the foregoing condition that Tenant give Landlord not less than twenty-four (24)
hours' prior notice of Tenant's needs for additional heating or air
conditioning, Landlord shall use reasonable efforts to provide Tenant additional
heating or air conditioning after business hours as Tenant requires. Such
charges will be prorated by Landlord between requesting user-tenants if more
than one tenant requests such additional heating or air conditioning at the same
time and the proration shall be based upon the area of the Project leased to
such tenants and their respective periods of use. Landlord's current charges for
after hours service (which may be modified by Landlord from time to time) are:
$50 per hour for heating and cooling from 6:00 p.m. through 8:00 a.m., Monday
through Friday and $50 per hour for heating and cooling after 1:00 p.m. on
Saturday and all day Sunday and holidays.
These charges may increase or decrease and Tenant agrees to pay whatever
Landlord's actual costs for additional heating and air conditioning are,
including without limitation, costs for labor and utility costs, at the time of
Tenant's request for additional services plus an allowance for maintenance,
which maintenance allowance shall not exceed 10% times Landlord's charges for
after hours service. The term "maintenance" shall include, without limitation,
the following: lubrication of supply and return dampers; greasing of supply and
return dampers; greasing of supply and return fans; periodic review of pneumatic
controls; replacements of filters; additional chemical usage in the cooling
water treatment and cooling tower; additional maintenance on the chiller and
condenser water pumps; and the scheduling and coordination of after hours HVAC
between the property management and engineering staffs. Notwithstanding the
foregoing, Landlord shall not charge Tenant for after hours service if on or
before June 30, 1999, Tenant leases the space in the Building currently occupied
by Manpower and in connection therewith, commences paying rent for the space
currently occupied by Manpower.
If at any time Tenant occupies the entire Building pursuant to the terms
and conditions of a lease with Landlord, then Tenant shall have the right to
change the business hours for the Building, as long as Tenant pays 100% of the
charges incurred by Landlord in connection with furnishing Project services to
the Building pursuant to the terms and conditions of this Paragraph 4.
D. Elevators. Landlord shall provide passenger elevator service in common
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with the Landlord and the other tenants, daily, during business hours, Sundays
and Holidays excepted. One of the passenger elevators can be adapted for freight
use upon 48 hours prior notice to Landlord by the Tenant with such use to be
confined to the hours of 8:30 a.m. to 11:30 a.m. and 1:00 p.m. to 4:30 p.m. on
Monday through Friday. Further, upon prior request to the Landlord by the
Tenant, freight elevator service may be available on Saturdays. Freight elevator
service shall at all times be subject to scheduling by the Landlord. Landlord
shall provide limited passenger elevator service at all times (except in the
case of an emergency) during which normal passenger elevator service is not
furnished. Not less than one (1) elevator shall be available to Tenant at all
times.
E. Electricity. All the electricity used in the Premises shall be
-----------
supplied by Wisconsin Electric Power Company or any other electricity company
serving the Project, and such electricity shall be supplied as an Operating
Cost; provided, however, if Wisconsin Electric Power Company serves the
Building, then Landlord agrees that the electricity used in the Premises shall
be supplied by Wisconsin Electric Power Company. Landlord shall not in any way
be liable to Tenant for any loss or damage or expense Tenant may sustain or
incur if either the amount or quality of electric service is changed or is no
longer available or suitable for Tenant's requirements. If such service shall be
discontinued, such discontinuance shall not in any way affect this Lease except
as otherwise set forth in Section 4.I. below. Tenant covenants and agrees that
at all times its use of electric current shall never exceed the capacity of the
existing feeders to the Building or the risers or the wiring installed thereon
when reviewed in conjunction with the electrical usage of the other tenants in
the Project. Tenant covenants and agrees that it shall make no alterations or
additions to the electric equipment and/or appliances without the prior written
consent of Landlord in each instance. Landlord shall maintain the light fixtures
in the Premises and install any lamps, bulbs, ballasts or starters to be used by
Tenant in the Premises, all as an Operating Cost, except that any light
fixtures, ballasts, starters and bulbs which are not building standard items
shall be repaired or replaced by Landlord at Tenant's expense. Landlord reserves
the right to stop the electrical system when necessary by reason of accident or
emergency or for repairs, alterations, regular maintenance, replacements or
improvements, which in the judgment of the Landlord are desirable or necessary,
until said repairs, alterations, regular maintenance, replacements or
improvements shall have been completed.
F. Water. Landlord shall furnish cold water from City of Milwaukee mains
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from regular Building outlets for drinking, lavatory and toilet purposes, drawn
through fixtures installed by Landlord or by Tenant with Landlord's prior
written consent, and hot water for public lavatory purposes from the regular
supply of the Building. Tenant shall pay Landlord at rates fixed by Landlord for
water furnished for any other purpose as Additional Rent hereunder. Tenant shall
not waste or permit the waste of water.
G. Janitorial Service. Tenant shall provide janitor services in the
------------------
Premises only at Tenant's sole responsibility, cost and expense, by contractors
or employees at all times satisfactory to Landlord in its sole discretion.
Tenant shall obtain Landlord's approval of the persons and/or entities providing
janitorial services on behalf of Tenant unless such services are provided by
employees of Tenant or Tenant's holding company. Landlord hereby approves the
use by Tenant of its employees or the employees of Tenant's holding company
to provide such services. Regardless of whether Tenant uses its own employees or
employees of the holding company or a third party to provide janitorial
services, if Tenant provides its own janitorial services, the provision of such
services and the persons and/or entities providing such services shall be
subject to rules and regulations reasonably imposed by Landlord. Notwithstanding
anything to the contrary contained in this Lease, Tenant shall pay for any
janitorial services provided in connection with the common areas of the Building
as an item as Operating Costs.
H. Window Washing. Landlord shall furnish window washing of all exterior
--------------
windows, weather permitting, at intervals to be determined by Landlord, but not
less than two (2) times during each calendar year.
I. Interruption of Service. Landlord does not warrant that any service
-----------------------
will be free from interruption caused by labor controversies, accidents,
inability to obtain fuel, steam, water or supplies, governmental regulations, or
other causes beyond the reasonable control of the Landlord, or repairs,
alterations, replacements or improvements to such systems. No such interruption
of service shall be deemed as eviction or disturbance of Tenant's use and
possession of the Premises or any part thereof, or render Landlord liable to
Tenant for damages, by abatement of Rent or otherwise, or relieve Tenant from
performance of Tenant's obligations under this Lease, except that if such
interruption of service continues uncorrected for a period of 72 consecutive
hours following notice from Tenant to Landlord of the interruption of such
service, and does not result from the errors or omissions of the Tenant or a
Force Majeure event, then if the interruption of service results in the complete
loss to the Premises of (i) electricity or (ii) elevator service or (iii) heat
or (iv) air conditioning or (v) ventilation, Landlord shall be liable to Tenant
for damages limited to abatement of Rent and all other charges due under the
Lease for the period in excess of 72 consecutive hours following notice from
Tenant to Landlord of the interruption of such service, during which such
condition continues uncorrected. If such interruption of service continues
uncorrected for 72 consecutive hours following notice from Tenant to Landlord of
the interruption of such service, and does not result from the errors or
omissions of the Tenant or a Force Majeure event and such interruption results
in the partial loss of any of the above enumerated services, then the Landlord
shall be liable to Tenant for damages limited to a partial abatement of Rent for
the period in excess of 72 consecutive hours following notice from Tenant to
Landlord of the interruption of such service, during which the condition
continues uncorrected based upon the number of square feet in the Premises
affected by such interruption of service. Landlord shall use reasonable efforts
not to interrupt voluntarily any service to the Premises except upon forty-eight
(48) hours advance notice to Tenant and then only in a manner which does not
materially interfere with Tenant's business operations, unless Landlord must do
so because of an emergency or if necessary for the proper maintenance and
operation of the Building, in which event Landlord shall use reasonable efforts
to minimize interference with Tenant's business operations.
The heating, ventilating, air conditioning and electrical service furnished
by Landlord pursuant to this Section 4, shall be furnished at capacities
sufficient to accommodate Tenant's use of the equipment listed on Appendix F
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attached hereto; provided, however, for the Additional Space, the equipment
listed on Appendix F attached hereto shall be that equipment installed pursuant
----------
to the plans and specifications approved by Landlord and Tenant under Appendix
--------
D attached hereto for the Additional Space and for the Existing Space, the
-
equipment listed on Appendix F attached hereto shall be the equipment that is
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currently located in the Existing Space.
Tenant shall make arrangements directly with the telephone company
servicing the Building for such telephone service in the Premises as may be
desired by Tenant. Tenant shall pay the entire cost of all telephone charges.
5. ALTERATIONS AND REPAIRS.
A. Tenant shall not make any improvements or alterations in or additions,
changes or installations to the Premises (collectively, "Work") without
submitting plans and specifications therefor to Landlord, and obtaining
Landlord's prior written consent in each instance. Landlord may withhold such
consent in its sole discretion if the improvements or alterations or additions
or changes or installation shall affect the structural portions of the Project
or any of its mechanical, electrical or plumbing systems. Tenant shall have the
right, without Landlord's consent, to make non-structural alterations, the total
cost of which is less than $10,000.00 per alteration. For the purposes of the
preceding sentence, the term "non-structural alterations" shall mean aesthetic
changes to the Premises such as painting, carpeting, and wall covering. Tenant
shall also have the right to perform internal wiring Work without first
obtaining Landlord's consent to such Work; provided, however, Tenant hereby
indemnifies and holds harmless Landlord and the Project from any and all loss,
damages, costs, liabilities and expenses arising in connection with the internal
wiring Work performed by Tenant, its employees, agents or contractors, including
without limitation, damages and costs incurred by other tenants of the Project
because of such Work and provided further, with respect to internal wiring Work
done in the common areas of the Building. Tenant shall give Landlord prior
written notice of its intention to perform said internal wiring Work. All Work
shall be performed (a) at the sole cost and expense of Tenant by employees of
contractors employed by Landlord, or with Landlord's written consent given prior
to the letting of the contract, by contractors employed by Tenant under a
written contract previously approved in writing by Landlord, and (b) on such
terms and under such conditions as Landlord, in its sole discretion, shall
determine as will protect the Premises, the Building and the Project from
improper contractors' work and against the imposition of any lien resulting from
Work; without limiting the foregoing, if Landlord consents to any Work, it shall
be performed subject to the following requirements:
(1) If the Work is to be done by Tenant's contractors, Tenant
shall furnish to Landlord prior to commencement thereof, building
permits and certificates of appropriate insurance and bonds
satisfactory in all respects to Landlord.
(2) Upon completion of any Work, Tenant shall furnish Landlord
with contractors' affidavits and full and final waivers of lien, each
conforming to the applicable Wisconsin statutory requirements, as-
built plans of any Work and receipted bills covering all labor and
materials expended and used.
(3) Any Work permitted to be undertaken by Tenant's contractors
shall be performed in such a fashion and by such means as necessary
to maintain peace and harmony among the other contractors serving the
Project and the other tenants and so as not to cause interference with
the continuance of work to be performed or services to be rendered to
the Project or the other tenants.
(4) All Work shall comply with all insurance requirements and
with all applicable laws, ordinances and regulations. All Work shall
be constructed in a good and workmanlike manner, and only good grades
of material shall be used with a quality equal to or better than that
used in the Project.
(5) Tenant shall permit Landlord to supervise all Work within
the Premises. Landlord shall charge a supervisory fee not to exceed
(a) ten percent (10%) of the total cost of the Work, including,
without limitation, all labor and material costs, if Landlord's
employees or contractors perform the Work, and (b) five percent (5%)
of the total cost of the Work, including, without limitation, all
labor and material costs, if Tenant's employees or contractors perform
the Work and if Tenant was required to obtain Landlord's consent to
the Work pursuant to this Section 5. Notwithstanding the foregoing,
Tenant shall not be required to pay the 5% supervisory fee for
internal wiring Work performed by Tenant, its employees or
contractors.
B. If Tenant desires telegraphic, telephonic, burglar alarm,
computer installations or signal service (all of which shall be at Tenant's sole
cost and expense), Landlord shall, upon request, direct where and how all
connections and wiring for such service shall be introduced and run. In the
absence of any such directions, Tenant shall make no borings, cutting or install
any wires or cable in or about the Premises. Landlord shall use its best efforts
not to impose conditions or requirements on Tenant with respect to this Section
5.B. that unreasonably interfere with Tenant's business operations.
C. Tenant hereby protects, defends and indemnifies Landlord, its
agents (including, without limitation, the Rental Agent) and employees, the
Premises, the Building and the Project from and against any and all liabilities
of every kind and description which may arise out of or be connected in any way
with any Work, performed by Tenant and whether performed in compliance with this
Section 5.
D. Any mechanic's lien filed against the Premises or the Project or
any notice which is received by either Landlord or Tenant or filed for work or
materials furnished or claimed to be furnished and deriving from Work or for
materials or work claimed to have been furnished to Tenant or the Premises shall
be released and discharged of record by Tenant, in either case, within twenty
(20) days after such filing or receipt, whichever is applicable, at Tenant's
expense. If Tenant chooses to contest such claim or notice or lien, Tenant may
do so in place of causing the release and discharge thereof, provided that
within said twenty (20) day period (i) Tenant provides Landlord with a title
indemnity or bond or other adequate security covering any possible lien or claim
that may arise from the failure to release and discharge such claim, notice or
lien; (ii) Tenant contests such claim, notice or lien in good faith by
appropriate proceedings that operate to stay enforcement thereof; and (iii)
Tenant promptly pays and discharges any final adverse judgment entered in any
such proceeding. If Tenant has not caused the release or discharge or begun
appropriate proceedings to contest such claim, notice or lien, within said
twenty (20) days, Landlord may, but shall not be obligated to, pay the amount
necessary to remove the same without being responsible for making an
investigation as to the validity or accuracy thereof, and the amount so paid,
together with all costs and expenses (including, without limitation, reasonable
attorneys' fees) incurred by Landlord in connection therewith, shall be deemed
Additional Rent hereunder, payable upon demand. Tenant has no power or authority
to cause or permit any lien or encumbrance of any kind whatsoever, whether
created by act of Tenant, operation of law or otherwise, to attach to or be
placed upon Landlord's title or interest in the Premises or the Project, and any
and all liens and encumbrances created by Tenant shall attach to Tenant's
interest only.
E. Except for ordinary wear and as otherwise provided in this Lease,
Tenant shall, at all times during the Term hereof, at its sole expense, keep all
Tenant's movable and removable fixtures located in or appurtenant to the
Premises in good order, repair and condition, and Tenant shall promptly arrange
with the Landlord to have Landlord (or Landlord's agent) make repairs of all
other damages to the Premises and the replacement or repair of all damages or
broken glass (including signs thereon), fixtures and appurtenants (including
hardware and heating, cooling, ventilating, electrical, plumbing and other
mechanical facilities in the Premises), with materials equal in quality and
class to the original materials damaged or broken, within any reasonable period
of time specified by Landlord. Landlord may, but shall not be required to do so,
enter the Premises at all reasonable times to make any repairs, alterations,
improvements or additions, as Landlord shall desire or deem necessary for the
safety, protection, preservation or improvement of the Project, or as Landlord
may be required to do by any governmental department or agency, or by the order
or decree of any court or by any proper authority. The cost of all repairs made
by Landlord to the Project which are made necessary as a result of misuse or
neglect by Tenant or Tenant's employees, invitees, servants, contractors or
agents shall be immediately paid as Additional Rent by Tenant or to Landlord
upon being billed for same. The cost of all other repairs and replacements
(except those caused by Tenant's misuse or negligence and those relating to
Tenant's movable and removable fixtures) shall be paid for by the Landlord and
deemed an item of Operating Costs.
F. Landlord shall maintain, replace and repair the exterior
structural portions of the Premises, to-wit: foundation, bearing walls and roof.
Landlord shall maintain, replace and repair all walls, plate glass, floors and
ceilings, wiring (except for Tenant's telephone and data wiring), pipes and
equipment within the walls, floors and ceilings, and all equipment including
without limitation, heating, air conditioning, ventilating, electrical and
plumbing equipment and elevator machinery. Landlord shall maintain the Project
in as good a condition and repair as the Project was in on the Commencement Date
of this lease. Landlord shall manage and operate the Project in a manner
consistent with the management and operation of the Project as of the
Commencement Date of this Lease. Landlord shall maintain, repair and replace all
common areas in the Building and the Project in as good a condition and repair
and in as clean and orderly an appearance as existed on the Commencement Date
of this Lease. Costs and expenses incurred by Landlord in connection with its
maintenance, repair and replacement obligations shall be included as an item of
Operating Costs. To the best of Landlord's knowledge and belief, the Project is
in good repair and all Project systems are in operating condition as of the
Commencement Date.
6. USES OF PREMISES. The Premises shall be occupied and used by Tenant only
for general office purposes, and for no other purpose. Without limiting the
generality of the foregoing, no use shall be made of the Premises nor acts done
which will increase the existing rate of insurance upon the Project or cause a
cancellation of any insurance policy covering the Project or any part thereof or
require additional
insurance coverage. Tenant shall not permit to be kept, used or sold in or about
the Premises any article which may be prohibited by Landlord's insurance
policies.
7. BUILDING RULES AND GOVERNMENTAL REGULATIONS. Tenant shall abide by all
applicable laws or governmental regulations concerning its use of the Premises.
Tenant shall not be required to make any alterations or improvements to the
Project unless related to a change in the conduct of Tenant's specific business
on the Premises, to make the Project comply with any governmental law, rule,
regulation, order or ordinances. Tenant shall also abide by all uniform
reasonable rules and regulations adopted or to be adopted from time to time by
Landlord pertaining to the operation and management of the Project. Except in
the event of an emergency, Landlord shall give Tenant thirty (30) days prior
written notice of the adoption of any rule or regulation. If any rules and
regulations are contrary to the terms of the Lease, the terms of this Lease
shall prevail. The present rules are contained in Appendix C. The violation of
the Project rules or the laws or regulations governing Tenant's use of the
Premises shall be subject to a default under Section 11(A)(2) of this Lease.
Landlord shall not be responsible to Tenant for violation of rules or
regulations or terms of this Lease or any other Lease in the Project by another
tenant, nor shall failure to obey the same by others or lack of enforcement by
Landlord relieve Tenant from its obligations to comply therewith. Landlord shall
use its reasonable efforts to enforce all rules and regulations in a non-
discriminatory manner.
8. CLAIMS; INSURANCE LIABILITY.
A. To the extent permitted by law, Tenant waives all claims it may
have against Landlord, its officers, directors, servants, agents or employees
for damage to person or property sustained by Tenant or by any occupant of the
Premises or the Project, or any other person, occurring in or about the Premises
or the Project, resulting from the Premises or the Project or any part of said
Premises or Project becoming out of repair or resulting from any existing or
future condition, defect, matter or thing in the Premises, the Project or any
part of it, or from equipment or appurtenances therein, or from the action of
the elements, or any accident within or adjacent to the Premises or Project or
resulting directly or indirectly from any act or omission of Landlord or any
occupant of the Premises or Project or any other person while on the Premises or
the Project. If any such damage to the Premises or the Project or any equipment
or appurtenances therein, or to tenants thereof, or their agents, employees,
contractors or invitees, results from any act, omission or negligence of Tenant,
its agents, employees, servants, contractors or invitees, Landlord may, at
Landlord's option, repair such damage and Tenant shall upon demand by Landlord
reimburse Landlord for all costs of such repairs and damages. All property on
the Project or in the Premises belonging to the Tenant, its agents, employees,
servants, contractors or invitees or to any occupant of the Premises shall be
there at the risk of the Tenant or such other person only and Landlord shall not
be liable for damage thereto or theft, misappropriation or loss thereof.
Notwithstanding anything contained in this Section 8 to the contrary, no
agreement of Tenant in this Section 8 shall be deemed to exempt Landlord from
liability for injury to person or damage to property caused by or resulting from
the negligence of Landlord, its agents or employees in the operation or
maintenance of the Premises or the Project or resulting from Landlord's default
under this Lease.
B. Landlord and Tenant agree to have all property insurance policies
which may be carried by either of them endorsed with a clause providing that any
release from liability of or waiver of claim for recovery from the other party
entered into in writing by the insured thereunder prior to any loss or damage
shall not affect the validity of said policy or the right of the insured to
recover thereunder. Without limiting any release or waiver of liability or
recovery contained in any other Section of this Lease but rather in confirmation
and furtherance thereof, Landlord and Tenant each hereby waive any and every
claim for recovery from the other for any and all loss of or damage to the
Project or the Premises or to the contents thereof, which loss or damage is
covered by valid and collectible special form property coverage insurance
policies, to the extent that such loss or damage is recoverable under said
insurance policies. Inasmuch as this mutual waiver will preclude the assignment
of any such claim by subrogation (or otherwise) to an insurance company (or any
other person), Landlord and Tenant each agree to give to each insurance company
which has issued, or in the future may issue, its policies of special form
property coverage insurance, written notice of the terms of this mutual waiver,
and to have said insurance policies properly endorsed, if necessary to prevent
the invalidation of said insurance coverage by reason of said waiver.
C. At all times during the Term of this Lease, Tenant shall at its
sole cost and expense maintain in full force and effect insurance protecting
Tenant and Landlord and their respective agents and employees, and any other
parties designated by Landlord from time to time, with terms, coverages and in
companies at all times reasonably satisfactory to Landlord and with such
increases in limits as Landlord may, from time to time, reasonably request.
Initially, such coverage shall be in the following amounts:
(1) Comprehensive or Commercial General Liability Insurance,
including Contractual Liability insuring the indemnification
provisions contained in this Lease, with limits of not less than One
Million Dollars ($1,000,000.00) combined single limit per occurrence
for Bodily Injury, Death and Property Damage, and umbrella coverage of
not less than $5,000,000. The Comprehensive or Commercial General
Liability policy shall include the Landlord as an additional insured,
with a severability of interest endorsement.
(2) Insurance against (a) "All Risks" of physical loss covering the
tenant improvements (if any) described in Item 12 of the Schedule, the
Work, movable fixtures, office equipment, furniture, trade fixtures,
merchandise and all other items of Tenant's property on the Premises,
and (b) loss of use of the Premises. Landlord shall maintain in full
force and effect insurance in amounts, with companies and of a type
maintained by institutional landlords of buildings of similar age and
quality to the Building in the ▇▇▇▇▇ Deer, Wisconsin area. The amount
of the deductible under such insurance policies shall be the amount
which is customary under insurance policies maintained by
institutional landlords of buildings of similar age and quality to the
Building in the ▇▇▇▇▇ Deer, Wisconsin, area (currently estimated to be
($20,000.00). Tenant understands and agrees that in lieu of insurance,
Landlord may provide self-insurance with respect to the Building,
insuring itself against casualties similar to those insured against by
institutional landlords of buildings of similar age and quality to the
Building in the ▇▇▇▇▇ Deer, Wisconsin area; provided, however, if
Landlord elects to self-insure, for all purposes of this Lease,
Landlord will be deemed to have in effect insurance policies of the
type and in amounts and with deductible amounts maintained by
institutional landlords of buildings of similar age and quality to the
Building in the ▇▇▇▇▇ Deer, Wisconsin area. In the event of damage to
the Building, Landlord shall not be required to make any claims under
Landlord's insurance policy. If Landlord chooses not to make a claim
under its insurance policy with respect to such damage, however,
Landlord shall not include as an Operating Cost, the amount Landlord
would have recovered had Landlord made such claim, to the extent that
the loss or damage would have been recoverable under said insurance
policies.
D. Tenant hereby agrees to prior to the commencement of the Term
hereof and prior to the expiration of any policy, furnish Landlord certificates
evidencing that all required insurance is in force and providing that such
insurance may not be canceled or changed without at least thirty (30) days'
prior written notice to Landlord and Tenant (unless such cancellation is due to
nonpayment of premiums, in which event ten (10) days' prior written notice shall
be provided).
E. Tenant hereby indemnifies, defends and holds harmless Landlord and
its officers, directors, servants, agents and employees against any claims or
liability for damage to person or property (or for loss or misappropriation of
property) occurring in the Premises or the Project, arising from any breach or
default on the part of Tenant during the Term of this Lease or from any act or
omission of Tenant or of any employee, agent, servant, invitee or contractor of
Tenant, and from any costs relating thereto (including, without limitation,
attorneys' fees).
F. Landlord hereby agrees to indemnify, defend and hold harmless
Tenant and its officers, directors, servants, agents and employees against any
claims or liability for damage to person or property (or for loss or
misappropriation of property) occurring in any part of the Project other than
the Premises, arising from any breach or default on the part of the Landlord
during the term of this Lease or from any act or omission of Landlord or of any
employee, agent, servant, invitee or contractor of Landlord, and from any costs
relating thereto (including without limitation, attorneys' fees).
9. FIRE AND OTHER CASUALTY.
A. In the event that (i) the Premises are made substantially
untenantable by fire or other casualty, including damage or casualties of war,
and Landlord shall decide not to restore or repair the same, or (ii) the
Building is so damaged by fire or other casualty that Landlord shall decide to
demolish or not rebuild the same, then, in either of such events, either
Landlord or Tenant shall have the right to terminate this Lease by notice to the
other within ninety (90) days after the date of such fire or casualty.
B. If the Premises or the Building are made untenantable by fire or
other casualty, and this Lease is not terminated pursuant to Section 9A above,
Landlord shall, to the extent permitted by any mortgages or Ground Leases with
respect to the Premises and the Project, immediately take such action as is
necessary to make applicable insurance proceeds available and to use the same to
reconstruct, repair and restore the Building and the Premises, subject to zoning
laws and building codes then in effect, and including only Building Standard
Tenant Improvements (as provided in Exhibit A of Appendix D) or, if any portion
of the Premises has been leased on an "as is" basis, including only improvements
similar to those located in such portion of the Premises on the Commencement
Date or the date on which such portion was added to the Premises, if later than
the Commencement Date (herein, the improvements Landlord is required to make are
called the "Required Improvements"), and at Landlord's option Tenant may be
permitted or required to devote the proceeds of its insurance described in
Section 8C(2)(a) to cause restoration of tenant improvements over and above the
Required Improvements, and pay for the same to Landlord or through Landlord as
if newly done pursuant to Section 5 of this Lease. In the event a fire or other
casualty occurs and both Landlord and Tenant are insured, it is agreed that the
coverage of the Landlord shall be primary and that Landlord's recovery in no
event shall be reduced by any insurance recovery to Tenant.
C. Notwithstanding anything in this Section 9 to the contrary, if
all or any portion of the Premises shall be made untenantable by a fire or other
casualty, Landlord shall with reasonable promptness and in no event later than
30 days following the fire or other casualty, cause a registered architect
selected by Landlord and licensed to do business in Wisconsin to estimate the
amount of time required to substantially complete repair and substantially
complete restoration of the Premises and make the Premises tenantable again,
using standard working methods. If the estimate indicates that the Premises
cannot be made tenantable within six (6) months from the date the repair and
restoration is started, either party shall have the right to terminate this
Lease by giving to the other notice of such election within ten (10) days after
its receipt of the architect's certificate. If the estimate of the registered
architect indicates that the Premises can be made tenantable within six (6)
months from the date the repair and restoration is started, or if neither party
terminates this Lease pursuant to this Section 9C, Landlord shall proceed with
reasonable promptness to repair and restore the Premises, provided that if the
estimate of the registered architect indicates that the Premises can be made
tenantable within six (6) month from the date repair and restoration is
started, and if Landlord does not repair and restore the Premises within said
six (6) month period, which six (6) month period shall be extended to the extent
of any Reconstruction Delays, then Tenant may terminate this Lease upon fifteen
(15) days prior written notice to Landlord. For purposes of this Lease, the term
"Reconstruction Delays" shall mean: (i) any delays caused by the insurance
adjustment process, (ii) any delays caused by Tenant, and (iii) any delays
caused by events beyond Landlord's reasonable control.
D. In the event that this Lease is terminated pursuant to Section 9A
or Section 9C above, Rent shall be apportioned on a per diem basis and be paid
to the date of the fire or other casualty. In the event that such fire or
casualty renders all or any portion of the Premises untenantable and this Lease
is not terminated pursuant to Section 9A or Section 9C, then subject to the last
sentence of this Section 9D, the Rent provided for in this Lease shall ▇▇▇▇▇ on
a per diem basis during the period of repair and restoration until the Premises
are tenantable again, and the abatement shall be in an amount bearing the same
ratio to the total amount of Rent due for such period as the untenantable
portion of the Premises from time to time bears to the entire Premises. Any
provision hereof notwithstanding, Tenant's Rent shall not ▇▇▇▇▇ if its
negligence was the cause of the fire or other casualty; and whether or not the
Lease is terminated, Tenant's recovery shall be limited to the amount necessary
to cause restoration of the tenant improvements as described in this Section 9.
10. RIGHTS RESERVED TO THE LANDLORD. Landlord reserves the following
rights, exercisable without notice to Tenant except as otherwise expressly
provided herein, and without liability to Tenant for damage or injury to
property, person or business (all such claims being hereby released, except to
the extent that they are caused by Landlord's negligence), and without effecting
an eviction or disturbance of Tenant's use or possession or giving rise to any
claim for offsets, or abatements of Rent or affecting any of Tenant's
obligations under this Lease. Specification of the rights reserved to Landlord
herein shall not exclude any right accruing to Landlord by operation of law or
reserved specifically or by inference from any provision contained in this
Lease:
A. Name: To change the Project's name or street address.
----
B. Signs: To install, affix and maintain any and all signs on the
-----
exterior and interior of the Building. No signs visible from the exterior of the
Building or from within its lobbies or common corridors shall be permitted to be
installed in the Premises by Tenant without Landlord's approval of the sign and
the location thereof, which may be withheld in Landlord's sole discretion.
Landlord reserves the right to remove at Tenant's expense any such sign not so
approved by Landlord.
C. Windows: To designate and approve, prior to installation, all
-------
types of windows shades, blinds, drapes, awnings, window ventilators and other
similar equipment and to control all the internal lighting that may be visible
from exterior of any Building.
D. Service Contracts: To designate all sources furnishing sign
-----------------
painting and lettering, ice and drinking water, towels, toilet supplies, shoe
shining or other services on the Premises, provided that the rates for such
services as are designated by Landlord are reasonably competitive with rates
charged therefor in the Milwaukee metropolitan area.
E. Keys: To retain at all times and to use passkeys to the Premises and
----
keys to all locks within and into the Premises. No locks or bolts shall be
altered, changed or added without the prior written consent of Landlord.
F. Access for Repairs, etc.: To have access to the Premises to perform
------------------------
its duties and obligations under this Lease and to inspect the Premises, make
repairs, alteration, additions or improvements, whether structural or otherwise,
in and about the Premises, the Project or any part thereof as set forth in
various Sections of this Lease including, without limitation, Section 5 and
Section 10(N). Except in the event of an emergency, Landlord shall access the
Premises only upon the prior consent of Tenant; provided, however, in the event
Tenant does not consent to Landlord's entering the Premises for the purposes of
making any repair, alteration, additions or improvements required to be made,
whether structural or otherwise, or to perform Landlord's maintenance, repair
and replacement obligations under this Lease, Landlord shall have no liability
to Tenant with respect to any damage caused because of Landlord's inability to
gain access to the Premises and Tenant shall be liable for any loss or damage to
the Project caused because Landlord was not permitted access to the Premises.
G. Occupancy: To decorate, remodel, repair, alter or otherwise prepare
---------
the Premises for reoccupancy at any time after Tenant vacates or abandons the
Premises. Such acts of Landlord shall not relieve Tenant of its obligation to
pay Rent to the Termination Date.
H. Rights to Conduct Businesses: To grant to anyone the exclusive right
----------------------------
to conduct any business or render any service in the Project provided such
exclusive right shall not operate to exclude Tenant from the use permitted by
this Lease.
I. Heavy Equipment: To approve the weight, size or location of safes and
---------------
other heavy equipment and articles in and about the Premises and the Project and
to require all such items and furniture to be moved into and out of the Building
or anywhere else in the Project and the Premises only at such times and in such
manner as Landlord shall direct in writing. Movement of Tenant's property into
or out of the Project and within the Project is entirely at the risk and
responsibility of Tenant.
J. Show Premises: To show the Premises to prospective tenants or brokers
-------------
during the last year of the Term of this Lease or the last year of any extension
thereof or to show the Premises to prospective purchasers at all reasonable
times, provided prior notice is given to Tenant in each case and Tenant's use
and occupancy of the Premises shall not materially be inconvenienced by any such
action of Landlord.
K. Close Project: To close or restrict access to the Project during such
-------------
hours as Landlord shall from time to time reasonably determine, and on Holidays
subject, however, to Tenant's right to admittance at all times under such
regulations as Landlord may prescribe from time to time which may include, by
way of example but not of limitation, that persons entering or leaving the
Project identify themselves to a security guard by registration or otherwise and
that said persons establish their right to enter or leave the Project.
L. [Reserved]
M. Use of Lock Box by Landlord: Landlord may from time to time elect to
---------------------------
designate a lock box collection agent (independent agent, bank or other
financial institution) to act as Landlord's agent for the collection of amounts
due Landlord. In such event the date of payment of Rent or other sums paid
Landlord through such agent shall be the date of agent's receipt of such payment
(or the date of collection of any such sum if payment is made in the form of a
negotiable instrument thereafter dishonored upon presentment); however, for
purposes of this Lease, no such payment or collection shall be deemed "accepted"
by Landlord if Landlord issues a check payable to the order of the Tenant in the
amount sent to the lock box and if Landlord mails the check to the Tenant
addressed to the place designated in this Lease for notice to Tenant within
twenty-one (21) days after the amount sent by the Tenant is received by the lock
box collection agent or if the Landlord returns a dishonored instrument within
twenty-one (21) days of its dishonor. Return of any such sum to Tenant by so
sending such a check of the Landlord or by so sending a dishonored instrument to
the Tenant within the appropriate twenty-one (21) day period shall be deemed to
be rejection of Tenant's tender of such payment for all purposes as of the date
of Landlord's lock box collection agent's receipt of such payment (or
collection). The return of Tenant's payment in the manner described in this
Section 10(M) shall be deemed not to be a waiver of any breach by Tenant of any
term, covenant or condition of this Lease nor a waiver of any of Landlord's
rights or remedies granted in this Lease. The possession of Tenant's funds or
negotiation of Tenant's negotiable instrument by Landlord's agent or Landlord
during the applicable twenty-one (21) day period shall be deemed not to be a
waiver of any defaults of Tenant or any rights of Landlord theretofore accrued
nor shall any such possession or negotiation be considered an acceptance of
Tenant's tender.
N. Repairs and Alterations: At any time Landlord may decorate, make
-----------------------
alterations, additions or improvements structural or otherwise, in or to the
Project or any part thereof, including the Premises, and perform any acts
required or permitted hereunder or related to the safety, protection,
preservation or improvement of the Project or the Premises, and during such
operations Landlord shall have the right to take into and through the Premises
or any part of the Project all material and equipment required and to close and
temporarily suspend operation of entrances, doors, corridors, elevators and
other facilities, and to have access to and open all ceilings, without liability
to Tenant by reason of interference, inconvenience, annoyance or loss of
business; provided, however, that Landlord shall cause as little inconvenience
or annoyance to Tenant as is reasonably possible under the circumstances.
Landlord shall do any such work during ordinary business hours, and Tenant shall
pay Landlord for overtime and for any other expenses incurred if such work is
done during other hours at Tenant's request. Landlord may do or permit any work
to be done upon or along, and any use of, any adjacent or nearby building, land,
street, alley or way. Landlord shall use reasonable efforts not to make
voluntarily alterations, additions or improvements to the Premises except upon
forty-eight (48) hours advance notice to Tenant and then only in a manner which
does not materially interfere with Tenant's business operations, unless Landlord
must do so because of an emergency or if necessary for the proper maintenance
and operation of the Building, in which event Landlord shall use reasonable
efforts to minimize interference with Tenant's business operations.
O. Other Rights: All other rights reserved by the Landlord pursuant to
------------
the provisions of this Lease.
11. DEFAULT AND LANDLORD'S REMEDIES.
A. Defaults. The occurrence of any of the following shall constitute a
--------
default hereunder:
(1) If Tenant defaults in the payment of Rent (whether Base Rent,
Operating Cost Share Rent, Tax Share Rent, or Additional Rent), or any
other sum required to be paid by this Lease; provided, however, that
Landlord shall not be entitled to exercise its remedies set forth herein or
at law or in equity with respect to such default, unless such default is
not remedied within five (5) days after written notice thereof by Landlord
to Tenant;
(2) If Tenant defaults in the prompt and full performance or
observance of any term, covenant, agreement or provision of this Lease
(except those specified in Subsections (1), (3), (4), (5), (6), (7), (8)
and (9) of this Section 11A); provided, however, that Landlord shall not be
entitled to exercise its remedies set forth herein or at law or in equity
with respect to such default, (i) if such default is remedied within thirty
(30) days after written notice thereof by the Landlord, or (ii) with
respect to a default which cannot reasonably be cured within thirty (30)
days, if Tenant immediately commences to cure and diligently proceeds to
complete the cure of such default within a reasonable time period which
shall in no event extend beyond ninety (90) days after Tenant receives
written notice of such default;
(3) If Tenant abandons the Premises during the term hereof;
(4) If the leasehold interest of Tenant is levied upon under
execution or is attached under process of law, which levy or attachment
continues for a period of thirty (30) days;
(5) If Tenant becomes insolvent or bankrupt or shall generally not
pay its debts as they become due or shall admit in writing its inability to
pay its debts or shall make a general assignment for the benefit of
creditors;
(6) If Tenant shall commence any case, proceeding or other action
seeking reorganization, arrangement, adjustment, liquidation, dissolution
or composition of it or its debts under any law relating to bankruptcy,
insolvency, reorganization or relief of debtors, or seeking appointment of
a receiver, trustee, custodian or other similar official for it or for all
or any substantial part of its property;
(7) If Tenant shall take any corporate or other action to authorize
any of the actions set forth above in Subsections (5) and (6) of this
Section 11A;
(8) If any case, proceeding or other action against Tenant shall be
commenced seeking to have an order for relief entered against it as debtor,
or seeking reorganization, arrangement, adjustment, liquidation,
dissolution or composition of it or its debts under any law relating to
bankruptcy, insolvency, reorganization or relief of debtors, or seeking
appointment of a receiver, trustee, custodian or other similar official for
it or for all or any substantial part of its property, and such case,
proceeding or other action (i) results in the entry of an order for relief
against it which is not fully stayed within seven (7) business days after
the entry thereof or (ii) remains undismissed for a period of thirty (30)
days; or
(9) If Tenant does any act or any other circumstance occurs in
violation of the provisions of Sections 14.G. and 16.
B. Landlord's Remedies.
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(1) Upon the occurrence of any one or more defaults by Tenant,
Landlord may elect, by written notice to Tenant, to terminate this Lease and
Tenant's right to the Premises as of the date set forth in the notice or,
without terminating this Lease, to terminate Tenant's right to possession of the
Premises as of the date set forth in the notice. Upon any termination of this
Lease, whether by lapse of time or otherwise, or upon any termination of
Tenant's right to possession without termination of the Lease, Tenant shall
surrender possession and vacate the Premises and deliver possession thereof to
Landlord, and Tenant hereby grants to Landlord full and free license to enter
into and upon the Premises with process of law in the event of any such
termination of this Lease or of Tenant's right to possession, and to repossess
Landlord of the Premises as of Landlord's former estate and to expel or remove
Tenant and any others who may be occupying or be within the Premises and to
remove any and all property therefrom and without relinquishing Landlord's
rights to Rent or any other right given to Landlord hereunder or by law or in
equity. Except as otherwise provided in this Section 11, Tenant expressly waives
the service of any notice of intention
to terminate this Lease or to reenter the Premises and waives the service of any
demand for payment of Rent or possession and waives the service of any other
notice or demand prescribed by any statute or other law.
(2) If Tenant voluntarily abandons the Premises or otherwise entitles
Landlord to elect to terminate Tenant's right to possession only without
terminating the Lease, and Landlord does so elect, Landlord may at Landlord's
option enter into the Premises, remove Tenant's signs and other evidences of
tenancy, and take and hold possession thereof as set forth in Subsection B(1) of
this Section 11, without such entry and possession terminating the Lease or
releasing Tenant, in whole or in part, from Tenant's obligation to pay the Rent
hereunder for the full Term, and, at Landlord's option, the present value of the
aggregate amount of the Base Rent, Operating Cost Share Rent, and Tax Share Rent
(based upon the amount thereof for the calendar month immediately preceding the
month in which the default has occurred) for the period from the date stated in
the written notice terminating possession to the stated end of the Term (such
present value to be computed on the basis of a per annum discount rate equal to
one (1) percentage point below the Corporate Base Rate at the time of the
default) shall be immediately due and payable by Tenant to Landlord, together
with any other monies due hereunder, and Landlord shall have right to immediate
recovery of all such amounts. In addition, Landlord shall have the right from
time to time, to recover from Tenant, and Tenant shall remain liable for, all
Rent not theretofore accelerated and paid pursuant to the foregoing sentence and
any other sums thereafter accruing as they become due under this Lease during
the period from the date stated in the notice terminating possession to the
stated end of the Term. Upon and after entry into possession without termination
of the Lease, subject to Landlord's right first to rent other vacant areas in
the Building, Landlord may relet the Premises or any part thereof to any person,
firm or corporation other than Tenant for such Rent, for such time (which may be
a period extending beyond the stated Term of this Lease) and upon such terms as
Landlord in Landlord's sole discretion shall determine, and Landlord shall not
be required to accept any tenant offered by Tenant or to observe any
instructions by Tenant relating to such reletting. In any such case, Landlord
may make repairs, alterations and additions in or to the Premises and redecorate
the same to the extent deemed necessary or desirable by Landlord, and in
connection therewith Landlord may change the locks to the Premises, and Tenant
shall upon written demand pay the cost thereof, together with Landlord's
expenses of reletting. Any proceeds from the reletting of the Premises by
Landlord shall be collected by Landlord and shall first be applied against the
cost and expenses of reentry and of reletting the Premises including, but not
limited to, all brokerage, advertising, legal, alteration, redecoration, repair,
and other reasonably necessary costs and expenses incurred to secure a new
tenant for the Premises, and second to the payment of Rent herein provided to be
paid by the Tenant. If the consideration collected by Landlord upon any such
reletting, after payment of the expenses of reletting the Premises, is not
sufficient to pay any accelerated amounts of Rent due and owing and to pay
monthly the full amount of the Rent reserved in this Lease and not theretofore
accelerated, Tenant shall pay to Landlord the accelerated amounts upon demand,
and the amount of each monthly deficiency as it becomes due. If the
consideration collected by Landlord upon any such reletting for Tenant's account
after payment of the expenses of reletting the Premises is greater than the
amount necessary to pay accelerated amounts of Rent due and owing and to pay the
full amount of the Rent reserved in this Lease and not theretofore accelerated,
the full amount of such excess shall be retained by Landlord and in no event
shall be payable to Tenant. No such reentry, repossession, repairs, alterations,
additions or reletting shall be construed as an eviction or ouster of Tenant or
as an election on Landlord's part to terminate this Lease, unless written notice
of such intention is given to Tenant, or shall operate to release Tenant in
whole or in part from any of Tenant's obligations hereunder. Notwithstanding
anything to the contrary contained in this Section 11.B.(2), Landlord will
mitigate its damages as may be required by law.
(3) If Landlord shall decide to terminate this Lease, Landlord shall be
entitled to recover from Tenant all of the amounts of Rent accrued and unpaid
for the period up to and including the date of the termination, as well as all
other additional sums for which Tenant is liable, or in respect of which Tenant
has agreed to indemnify Landlord under any of the provisions of this Lease,
which may then be owing and unpaid, and all costs and expenses including without
limitation, court costs and attorneys' fees incurred by Landlord in the
enforcement of its rights and remedies hereunder, and in addition, Landlord, at
its sole option, shall be entitled to recover from Tenant, in lieu of any
amounts due under Section 11B(2) hereof, and Tenant shall pay to Landlord, on
demand, as final and liquidated damages (and not as a penalty), a sum equal to
the amount of Landlord's reasonable estimate of the aggregate amount of Base
Rent, Operating Cost Share Rent, Tax Share Rent, and Additional Rent that would
be payable for the period from the date of such termination through the
Termination Date, reduced by the then reasonable rental value of the Premises
for the same period, both discounted to present value at the rate per annum
equal to one (1) percentage point below the Corporate Base Rate at the time of
the default. If, before presentation of proof of such liquidated damages to any
court, commission or tribunal, the Premises, or any part thereof, shall have
been relet by Landlord for such period, or any part thereof, the amount of Rent
payable upon such reletting shall be deemed to be the reasonable rental value
for the part or the whole of the Premises relet during the term of the
reletting.
(4) Landlord may but shall not be obligated to cure any default by Tenant
hereunder, but, if Landlord so elects, all costs and expenses paid by Landlord
in curing such default and legal fees in connection therewith shall be
Additional Rent due on the next Rent date.
(5) Notwithstanding anything in the Lease to the contrary, any and all
remedies set forth in this Lease (i) shall be in addition to any and all other
remedies Landlord may have at law or in equity and (ii) shall be cumulative.
The waiver by Landlord of any breach of any term, covenant or condition herein
contained shall only be effective if it is in writing and shall not be deemed to
be a waiver of a continuing or subsequent breach of the same, or of any other
term, covenant or condition herein contained. The acceptance of Rent or any
other amounts due hereunder shall not be construed to be a waiver of any breach
by Tenant of any term, covenant or condition of this Lease, and if the same
shall be accepted after the termination of this Lease, by lapse of time or
otherwise, or of the Tenant's right of possession hereunder, or after the giving
of any notice, such acceptance shall not reinstate, continue or extend the Term
of this Lease or affect any notice given to Tenant prior to the receipt of such
amounts, it being agreed that after the service of notice or the commencement of
a suit or after final judgment for possession of the Premises, Landlord may
receive and collect any Rent and other sums due, and the payment of the same
shall not waive or affect said notice, suit or judgment.
(6) Notwithstanding any provision in this Lease prohibiting Landlord from
exercising its rights hereunder or at law or in equity if Tenant cures a default
within a specified period of time, if Tenant shall default (i) in the timely
payment of Rent (whether any or all of Base Rent, Operating Cost Share Rent, Tax
Share Rent, or Additional Rent) three or more times in any period of 12
consecutive months, or (ii) in the performance of any material particular term,
condition or covenant of this Lease three or more times in any period of six
consecutive months, then, notwithstanding that such defaults shall have each
been cured within any applicable cure period after notice, if any, as provided
in this Lease, any further similar default (including, without limitation, with
respect to non-payment of Rent, the further non-payment of any kind of Rent
payable under this Lease) shall not be curable by Tenant and Landlord shall have
the right to exercise all of the remedies provided in this Lease (including,
without limitation, any and all remedies at law and in equity) immediately after
the occurrence of such similar default.
(7) If the term of any lease, other than this Lease, made by the Tenant
for any demised premises in the Building shall be terminated or terminable after
the making of this Lease because of any default by the Tenant under such other
lease, such fact shall empower the Landlord, at Landlord's sole option, to
terminate this Lease by written notice to the Tenant.
(8) In the event that Tenant shall file for protection under the
Bankruptcy Code now or hereinafter in effect, or a trustee in bankruptcy shall
be appointed for Tenant, Landlord and Tenant agree to the extent permitted by
law, to request that the debtor-in-possession or trustee-in-bankruptcy, if one
shall have been appointed, assume or reject this Lease within sixty (60) days
thereafter.
12. HOLDOVER. If Tenant retains possession of the Premises or any part
thereof after the termination of the Term or any extension thereof, by lapse of
time or otherwise without Landlord's prior written consent, which consent shall
not be unreasonably withheld. Tenant shall become a tenant from month-to-month
only upon each and all of the terms herein provided as may be applicable to such
month-to-month tenancy and any such holdover shall not constitute an extension
of this Lease; provided, however, that during such holding over, Tenant shall
pay Base Rent, Operating Cost Share Rent, and Tax Share Rent at (a) one and one-
half times the rate payable for the fiscal year, or portion thereof, immediately
preceding said holding over, computed on a monthly basis for the time Tenant
thus remains in possession for the first two months that Tenant holds over and
(b) Tenant shall pay Base Rent, Operating Cost Share Rent and Tax Share Rent at
double the rate payable for the fiscal year, or portion thereof, immediately
preceding said holding over, computed on a monthly basis for the time Tenant
thus remains in possession thereafter, and, in addition, Tenant shall pay
Landlord all damages, consequential as well as direct, sustained by reason of
Tenant's holding over. Alternatively, if Tenant retains possession of the
Premises or any part thereof for more than 60 days after the termination of the
Term or any extension thereof, by lapse of time or otherwise, at the election of
Landlord expressed in a written notice to Tenant and not otherwise, such
retention of possession shall constitute a renewal of this Lease for one (1)
year; provided, however, for the period commencing on the 61st day following the
termination of the Term or any extension thereof, that Tenant shall pay Base
Rent in an amount equal to the greater of 150% of the rate payable for the
immediately preceding fiscal year, or portion thereof or 125% of the then
current market rate as determined by Landlord, and Tenant shall continue to make
all other payments required under this Lease, including, without limitation,
Operating Cost Share Rent and Tax Share Rent. Neither the acceptance of Rent by
the Landlord after termination, nor the provisions of this Section: (i) shall be
construed as, or operate as, a renewal or as a waiver of Landlord's right of
re-entry or right to regain possession by actions at law or in equity or by any
other right or remedy hereunder, or (ii) shall be construed as, or operate as, a
waiver of any other right or remedy of Landlord.
13. SUBORDINATION TO MORTGAGES AND GROUND LEASES.
A. Subordination. This Lease shall be subordinated to any and all
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Ground Leases now or hereafter in force with respect to the Project at the
election of the ground lessor under any such Ground Lease. This Lease shall be
subject to all of the terms and conditions of such Ground Leases, which are
hereby incorporated in this Lease by this reference, and in the event of any
conflict between the terms hereof and the terms of any such Ground Leases, the
terms of such Ground Leases shall control. This Lease shall be subordinated to
the lien of any and all mortgages now or hereafter in force against (a) the
Project and (b) any and all Ground Leases with respect to the Project, at the
election of the mortgagee under any such mortgage. Landlord hereby represents
that as of the date hereof there are no Ground Leases with respect to the
Project.
The respective rights to so subordinate this Lease at the election of any
such ground lessor or mortgagee shall continue during any amendment, renewal,
modification, consolidation, replacement or extension of each such Ground Lease
or mortgage, and shall apply to any and all advances made or hereafter made on
the security of each such mortgage.
Subordination shall be effective at election of any such ground lessor or
mortgagee. Election shall not be dependent on receipt of notice by Tenant of the
election to subordinate. Without limiting the foregoing, notice of the election
to subordinate may be given as provided for notices pursuant to this Lease.
Any subordination at the election of any such ground lessor or mortgagee
shall be self operating. Nevertheless, Tenant or its successors in interest upon
request of Landlord shall promptly execute and deliver (within ten (10) days
after a request therefor) at any time and from time to time upon the request of
Landlord, such instruments as are reasonably necessary or appropriate in
Landlord's judgment to evidence such subordination. Tenant shall not be required
to subordinate its interest in the Lease to the interest of any ground lessor or
mortgagee unless said ground lessor or mortgagee, as the case may be, shall
agree with Tenant in writing that as long as Tenant is not in default under the
terms and conditions of this Lease, Tenant shall not be disturbed in its use and
occupancy of the Premises as a result of the subordination referred to in this
Paragraph 13.A.
B. Termination of Ground Lease or Foreclosure of Mortgage. Should any
------------------------------------------------------
mortgage on the Project or on any Ground Lease be foreclosed or if any Ground
Lease be terminated and this Lease be continued:
(1) The liability of the mortgagee, ground lessor or purchaser at
such foreclosure sale shall exist only during the time such mortgagee,
ground lessor or purchaser is the owner of the Project.
(2) Tenant shall attorn, as Tenant under this Lease, without any
deductions or setoffs whatsoever to the purchaser at the foreclosure
sale (or the mortgagee if the mortgagee becomes owner of the fee
estate or lessor under any Ground Lease) or, if any Ground Lease be
terminated for any reason, Tenant shall be deemed to have attorned as
Tenant under this Lease to the ground lessor under the Ground Lease,
and this Lease shall continue in full force and effect as a direct
lease between and binding upon Tenant and such mortgagee or ground
lessor, as the case may be. Likewise, Tenant will attorn to a
leasehold mortgagee in the event a leasehold mortgagee should ever
become the owner of the leasehold estate covered by its mortgage or
should become the owner of any new lease in replacement or
substitution of such leasehold estate. Tenant agrees to promptly
execute and deliver (within ten (10) days after a request therefor) at
any time and from time to time upon the request of Landlord, or of any
ground lessor under any such Ground Lease, or of any holder of any
such mortgage or leasehold mortgage, or of any such purchaser, any
instrument which, in the sole judgment of such requesting party, may
be necessary or appropriate in any such foreclosure or termination
proceeding or otherwise in evidence such attornment. Tenant shall not
be required to attorn to any ground lessor or mortgagee, unless any
such ground lessor or mortgagee, as the case may be, agrees with
Tenant in writing that as long as Tenant is not in default under the
terms and conditions of this Lease, Tenant shall not be disturbed in
its use and occupancy of the Premises as a result of the foreclosure
and/or attornment referred to in this Paragraph 13.B.
C. Security Deposit. The mortgagee under a mortgage and the lessor
----------------
under any Ground Lease shall have no responsibility for the return of the
security deposit, if any, except to the extent the security deposit is held by
such mortgagee or ground lessor.
D. Notice and Right to Cure. Landlord hereby notifies Tenant that the
------------------------
Project is subject to the mortgages set forth on Appendix E attached hereto
(Mortgages Currently Affecting the Project), and Landlord agrees promptly to
notify Tenant of the placing of any additional Ground Leases or mortgages
against the real property or leasehold estate of which the Premises form a part.
Tenant agrees to give the mortgagees shown on Exhibit E and any other
mortgagee or lessor of any Ground Lease, by registered mail, a copy of any
notice of default served upon the Landlord, provided that prior to such notice
Tenant has been notified, in writing (by way of notice of Assignment of Rents
and Leases, or otherwise), of the address of such mortgagee or lessor under any
Ground Lease. Tenant further agrees that if Landlord shall have failed to cure
such default within the time provided for in this Lease, then such mortgagee or
lessor under any Ground Lease shall be permitted to cure the default within the
time periods or extensions thereof provided to Tenant for the curing of defaults
under this Lease (including but not limited to commencement of foreclosure or
lease forfeiture proceedings, if necessary to effect such cure).
14. ASSIGNMENT AND SUBLETTING BY TENANT.
A. Tenant shall not, without the prior written consent of Landlord in
each instance, (i) assign, transfer, mortgage, pledge, hypothecate or encumber
or subject to or permit to exist upon or be subjected to any lien or charge,
this Lease or any interest under it, (ii) allow to exist or occur any transfer
of or lien upon this Lease or the Tenant's interest herein by operation of law,
(iii) sublet the Premises or any part thereof, or (iv) permit the use or
occupancy of the Premises or any part thereof for any purpose not provided for
under Section 6 of this Lease or by anyone other than the Tenant and Tenant's
employees. In no event shall this Lease or any interest herein be assigned or
assignable by voluntary or involuntary bankruptcy proceedings or by operation of
law or otherwise, and in no event shall this Lease or any rights or privileges
hereunder be an asset of Tenant under any bankruptcy, insolvency or
reorganization proceedings, except as provided by law. Notwithstanding the
foregoing, Tenant may assign this Lease or sublet the Premises without
Landlord's prior written consent (a) to any parent, subsidiary or affiliate of
Tenant if Tenant gives Landlord thirty (30) days' prior written notice of the
proposed assignment or sublet and if Landlord receives within such thirty (30)
day period, evidence reasonably satisfactory to Landlord of the financial
capability of said parent, subsidiary or affiliate, or (b) in connection with a
reorganization, merger, consolidation or sale by Tenant of all or substantially
all of its assets, if Tenant gives Landlord thirty (30) days' prior written
notice of said reorganization, merger, consolidation or sale and if Landlord
receives evidence satisfactory to Landlord that the net worth of the proposed
transferee or surviving entity, as the case may be, is not less than Tenant's
net worth. Any parent, subsidiary or affiliate or other transferee or surviving
entity shall continue to use the Premises in a manner consistent with Tenant's
use of the Premises. Tenant's assignment or sublet to a parent, subsidiary or
affiliate or in connection with the sale, reorganization, merger or
consolidation shall not operate to release Tenant from any of its liabilities or
obligations under this Lease. Tenant's right to assign this Lease or sublet the
Premises to a parent, subsidiary, or affiliate or in connection with a sale,
reorganization, merger or consolidation does not relieve Tenant of any other
obligations or deny Landlord any other of its rights under this Section 14,
unless specifically provided otherwise in this Section 14.
Tenant agrees that Landlord shall have the right to grant or withhold
its consent in its sole discretion to an assignment of this Lease or sublet of
the Premises by Tenant to any other tenant or proposed tenant of the ▇▇▇▇▇ Deer
Business Park unless Landlord has no other space for rent in the ▇▇▇▇▇ Deer
Business Park.
B. Consent by Landlord to any assignment, subletting, use, occupancy,
transfer or encumbrance shall not operate to relieve Tenant from any covenant,
liability or obligation hereunder (whether past, present or future), including,
without limitation, the obligation to pay Rent, except to the extent, if any,
expressly provided for in such consent, or be deemed to be a consent, or be
deemed to be a consent to any subsequent assignment, subletting, use, occupancy,
transfer or encumbrance. Tenant shall pay all of Landlord's costs, charges and
expenses, including without limitation, reasonable attorney's fees, incurred in
connection with any assignment, subletting, use, occupancy, transfer or
encumbrance made or requested by Tenant.
C. Tenant shall, by notice in writing, advise Landlord of its
intention from, on and after a stated date (which shall not be less than sixty
(60) days after the date of Tenant's notice) to assign this Lease or sublet any
part or all of the Premises for the balance or any part of the Term, and, in
such event (except in those instances where Page 15, Insert 3 applies). Landlord
shall have the right, to be exercised by giving written notice to Tenant within
thirty (30) days after receipt of Tenant's notice, to terminate this Lease with
respect to the space described in Tenant's notice as of the date stated in
Tenant's notice for the commencement of the proposed assignment or sublease.
Tenant's notice shall include the name and address of the proposed assignee or
subtenant, a true and complete copy of the proposed assignment or sublease and
sufficient information as Landlord deems necessary to permit Landlord to
determine the financial responsibility and character of the proposed assignee or
subtenant. If Tenant's notice covers all of the Premises and if Landlord
exercises its right to terminate this Lease as to such space, then the Term of
this Lease shall expire and end on the commencement date stated in Tenant's
notice as fully and completely as if that date had been the Termination Date.
If, however, Tenant's notice covers less than all of the Premises, and if
Landlord exercises its right to terminate this Lease with respect to such space
described in Tenant's notice, then as of the commencement date stated in
Tenant's notice, the Rent reserved herein shall be adjusted on the basis of the
number of rentable square feet retained by Tenant, and this Lease as so amended,
shall continue thereafter in full force and effect. If Landlord, upon receiving
Tenant's notice, does not exercise its right to terminate as aforesaid, Landlord
will not unreasonably withhold its consent to Tenant's assignment of this Lease
or subletting the space covered by its notice, provided Tenant is not in default
beyond any applicable grace or notice period. Without limitation, it shall be
deemed reasonable for Landlord to withhold its consent to Tenant's assignment of
this Lease or subletting the space covered by its notice if the proposed
assignee or sublessee is a tenant or occupant of the building or an affiliate (a
person controlling, controlled by or under common control with) of a tenant or
occupant of the Building.
D. If Tenant, having first obtained Landlord's consent to any
assignment or sublease, or if Tenant or a trustee in bankruptcy for Tenant
pursuant to the Bankruptcy Code, shall assign this Lease or sublet the Premises,
or any part thereof, at a rental or for other consideration in excess of the
aggregate of the Base Rent, Operating Cost Share Rent, and Tax Share Rent due
and payable by Tenant under this Lease, then Tenant shall pay to Landlord as
Additional Rental one-half of all of such excess Rent or other consideration
within ten (10) days after receipt thereof from time to time.
E. If Tenant shall assign this Lease as permitted herein, the
assignee shall expressly assume all of the obligations of Tenant hereunder and
agree to comply with and be bound by all of the terms, provisions and conditions
of this Lease, in a written instrument satisfactory to Landlord and furnished to
Landlord not later than fifteen (15) days prior to the effective date of the
assignment. If Tenant shall sublease the Premises as permitted herein, Tenant
shall obtain and furnish to Landlord, not later than fifteen (15) days prior to
the effective date of such sublease and in form satisfactory to Landlord, the
written agreement of such subtenant that it shall comply with and be bound by
all of the terms, provisions and conditions of this Lease and that it will
attorn to Landlord, at Landlord's option and written request, in the event this
Lease terminates before the expiration of sublease.
F. If Tenant is a corporation whose stock is not publicly traded,
any transaction or series of transactions (including, without limitation, any
dissolution, merger, consolidation or other reorganization of Tenant, or any
issuance, sale, gift, transfer or redemption of any capital stock of Tenant,
whether voluntary, involuntary or by operation of law, or any combination of any
of the foregoing transactions) resulting in the transfer of control of Tenant,
other than by reason of death, shall be deemed to be a voluntary assignment of
this Lease by Tenant subject to the provisions of this Section 14. If Tenant is
a partnership, any transaction or series of transactions (including without
limitation any withdrawal or admittance of a partner or any change in any
partner's interest in Tenant, whether voluntary, involuntary or by operation of
law, or any combination of any of the foregoing transactions) resulting in the
transfer of control of Tenant, other than by reason of death, shall be deemed to
be a voluntary assignment of this Lease by Tenant subject to the provisions of
this Section 14. The term "control" as used in this Section 14F means the power
to directly or indirectly direct or cause the direction of the management or
policies of Tenant. If Tenant is a corporation, a change or series of changes in
ownership of stock which would result in direct or indirect change in ownership
by the stockholders or an affiliated group of stockholders of less than fifty
percent (50%) of the outstanding stock as of the date of the execution and
delivery of this Lease shall not be considered a change of control.
G. Except as otherwise set forth in Section 14.A., any assignment,
subletting, use, occupancy, transfer or encumbrance of this Lease or the
Premises without Landlord's prior written consent shall be of no effect and
shall, at the option of Landlord, constitute a default under this Lease.
15. SALE BY LANDLORD. In the event of sale or conveyance or transfer by
Landlord of its interest in the Project or in the Building or in this Lease, the
same shall operate to release Landlord (subject to the second paragraph of
Section 17 hereof entitled Security Deposit) from any future obligations and any
future liability for or under any of the covenants or conditions, express or
implied, herein contained in favor of Tenant, and in such event, and with
respect to such obligations, covenants and conditions, Tenant agrees to look
solely to the successor in interest of Landlord in and to this Lease. This lease
shall not be affected by any such sale, conveyance or transfer.
16. ESTOPPEL CERTIFICATE. Landlord shall, at the request of Tenant and
Tenant shall at the request of Landlord at any time and from time to time upon
not less than ten (10) days' prior written notice, execute, acknowledge in
recordable form, and deliver to the other, or for the Tenant to its auditor or
a prospective purchaser of its business or assets, or to its assignee or
subtenant if acceptable to Landlord, or for the Landlord to Landlord's
mortgagee, the lessor under any Ground Lease, auditors or a prospective
purchaser of the Project or any part thereof, a certificate stating that this
Lease is unmodified and in full force and effect (or, if modified, stating the
nature of such modification and certifying that this Lease, as so modified, is
in full force and effect), and the dates to which the Rent and other charges are
paid, and that Tenant is paying Rent on a current basis with no offsets or
claims, and there are not, to Tenant's or Landlord's knowledge, as the case may
be, any uncured defaults on the part of Landlord or of Tenant (or specifying
such offsets, claims or defaults, if any are claimed). Such certificate may
require the party giving it to specify the date of commencement of Rent, the
Commencement Date, the Termination Date, the Base Rent, current Operating Cost
Share Rent, and Tax Share Rent estimates, the date to which Rent has been paid,
whether or not Landlord has completed any improvements required to be made to
the Premises and such other matters as may be required. It is expressly
understood and agreed that any such statement may be relied upon by any
prospective purchaser or encumbrancer of all or any portion of the Project or by
any ground lessor, or by a purchaser or assignee or lender to Tenant or to
auditors to either party hereto or by any other person to whom it is delivered.
The failure to deliver such statement within the time required hereunder shall,
at the option of the requesting party, be a default under this Lease, or be
conclusive evidence, binding upon the nonperforming party that this Lease is in
full force and effect, without modification except as may be represented by the
requesting party, that there are no uncured defaults by the requesting party and
that no more than one (1) month's Rent has been paid in advance, and the
nonperforming party shall be estopped from asserting any defaults known to it at
that time.
17. SECURITY DEPOSIT. Tenant has deposited with Landlord security for the
full and faithful performance of every provision of this Lease to be performed
by Tenant in the amount, if any, set forth as Item 9 in the Schedule. If Tenant
defaults with respect to any provision of this Lease, Landlord may use all or
any part of this security deposit for the payment of any Rent and any other sum
due or in default, or for the payment of any other amount which Landlord may
spend or become obligated to spend by reason of Tenant's default, or to
compensate Landlord for any loss or damage which Landlord may suffer by reason
of Tenant's default. If any portion of such deposit is to be used, Tenant shall
within five (5) days after written demand therefor deposit cash with Landlord in
an amount sufficient to restore the security deposit to its original amount and
Tenant's failure to do so shall be a material breach of this Lease. Landlord
shall not be required to keep this security deposit separate from its general
funds and Tenant shall not be entitled to interest on such deposit. If Tenant
shall fully and faithfully perform every provision of this Lease to be performed
by it, the security deposit or any balance thereof shall be returned to Tenant
(or, at Landlord's option, to the last assignee of Tenant's interest hereunder)
at the expiration of this Lease and upon vacation of the Premises in accordance
with the provisions hereof. Said security deposit shall not be deemed an advance
payment of Rent or a measure of Landlord's damages for any default hereunder by
Tenant.
Tenant acknowledges that Landlord has the right to transfer all or any part
of its interest in the Project or this Lease, and Tenant agrees that in the
event of any such transfer, Landlord shall have the right to transfer such
security deposit to the transferee. Upon delivery by Landlord to Tenant of such
transferee's written acknowledgment of its receipt of such security deposit,
Landlord shall thereby be released by Tenant from all liability or obligations
for the return of such deposit and Tenant agrees to look solely to such
transferee for the return of the security deposit.
18. EXCUSE OF LANDLORD'S INABILITY TO PERFORM; LANDLORD'S DEFAULT. Except
as specifically provided to the contrary in this lease, this Lease and the
obligation of Tenant to pay Rent hereunder and perform all of Tenant's covenants
and agreements hereunder shall not be impaired nor shall Landlord be in default
hereunder because Landlord is unable to fulfill any of its obligations under
this Lease, if Landlord is prevented or delayed from so doing by any of the
following (which shall be referred to herein as a "Force Majeure"): any
accident, breakage, repairs, alterations, improvements, strike or labor
troubles, or any other cause whatsoever beyond the reasonable control of
Landlord, including, but not limited to, energy shortages or governmental
preemption in connection with a national emergency, or by reason of government
laws or any rule, order or regulation of any department or subdivision thereof
of any governmental agency, or by reason of the conditions of supply and demand
which have been or are affected by war or other emergency.
19. PERSONAL PROPERTY. Tenant hereby conveys to Landlord all of the
personal property situated and to be situated on the Premises as security for
the payment of all Rent due or to become due hereunder. Said property shall not
be removed therefrom without the consent of Landlord until all Rent due or to
become due hereunder shall have first been paid and discharged. It is intended
by the parties hereto that this Lease constitutes a security agreement creating
a security interest in and to such property, subject to the liens of any
existing creditors, and Landlord, upon default of Tenant in the payment of Rent,
shall have all the rights of a secured party, as provided in the Wisconsin
Uniform Commercial Code, as from time to time in effect. Landlord shall have the
right to file financing statements or to file this security agreement as a
financing statement, after the occurrence of a default by Tenant which is not
cured within any applicable cure period and Tenant agrees to execute financing
statements upon request of Landlord.
20. NOTICES. All notices and approvals to be given by one party to the
other party under this Lease shall be given in writing, mailed or delivered as
follows:
A. To Landlord as follows:
TIAA Realty, Inc.
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇ Management Corporation of Wisconsin
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Building Manager
With a copy to:
Teachers Insurance and Annuity Association of America
Attention: Vice President - Mortgage and Real Estate
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
And to:
▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
or to such other person at such other address designated by notice to Tenant.
B. To Tenant at the place set forth as Item 10 on the Schedule until
Tenant takes possession of the Premises, and thereafter at the Premises and at
M&I Data Services, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ Road, P.O. Box 23528, ▇▇▇▇▇ Deer,
Wisconsin 53223-0528, Attention: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ or at such other address
designated by notice to Landlord.
C. Notice may be given by United States mail, delivery by a
nationally recognized overnight courier service or by personal delivery. Mailed
notices shall be sent by United States certified or registered mail, postage
prepaid and shall be deemed to have been given upon receipt by the addressee or
upon refusal by the addressee to accept delivery. Notice by nationally
recognized overnight commercial courier service shall be deemed given upon
receipt by the addressee or upon refusal by the addressee to accept delivery
thereof. Notice by personal delivery shall be deemed given upon personal
delivery.
21. QUIET POSSESSION. So long as Tenant shall observe and perform the
covenants and agreements binding on it hereunder, Tenant shall at all times
during the Term herein granted and subject to the provisions of this Lease
peacefully and quietly have and enjoy the possession of the Premises without any
encumbrance or hindrance by, from or through Landlord, its successors or
assigns.
22. REAL ESTATE BROKER. Tenant represents that it has not dealt with any
real estate broker except for that broker listed, if any, in Item 11 in the
Schedule, with respect to this Lease and, to its knowledge no other broker
initiated or participated in the negotiation
of this Lease, submitted or showed the Premises to Tenant or is entitled to any
commission in connection with this Lease. Tenant indemnifies and holds Landlord
harmless from all claims from any other real estate broker for commission or
fees in connection with this Lease.
23. CONDEMNATION. If all or any portion of the Project or Premises are
taken by eminent domain so that the Premises cannot be reasonably used by Tenant
for the purposes for which they are demised, then at the option of either party
this Lease may be terminated effective as of the date of the taking and all Rent
reserved hereunder shall be paid to the date of such taking. The entire award
for any total or partial taking shall be paid to and retained by Landlord. If
any condemnation proceeding shall be instituted in which it is sought to take or
damage any part of the Project, or if the grade of any street or alley adjacent
to the Project is changed by any competent authority and such change of grade
makes it necessary or desirable to remodel the Project to conform to the changed
grade, Landlord shall have the right to terminate this Lease upon not less than
ninety (90) days' notice prior to the date of termination designated in the
notice. No money or other consideration shall be payable by Landlord to Tenant
for said termination, and the Tenant shall have no right to share in the
condemnation award or in any judgment for damages caused by said eminent domain
proceeding. Notwithstanding the foregoing, Tenant shall have the right to pursue
any award attributable to a taking of any of Tenant's personal property or
equipment if the pursuit by Tenant of any such award does not interfere with
Landlord's condemnation award or its pursuit thereof.
24. SPRINKLERS. If the sprinkler system installed at the Project or any of
its appliances shall be damaged or injured or not in proper working order by
reason of any act or omission of Tenant, Tenant's agents, servants, employees,
licensees or invitees, Tenant shall forthwith restore the same to good working
condition at its own expense. Tenant shall not do or permit anything to be done
upon the Premises, or bring or keep anything thereon which is in violation of
rules, regulations and requirements of any state, municipal or other authority
having jurisdiction over the Building, and if the Board of Fire Underwriters or
Fire Insurance Exchange or any bureau, department or official of the state or
city government, requires that any changes, modifications, alterations or
additional sprinkler heads or other equipment be made or supplied by reason of
Tenant's business or acts or the location of partitions, trade fixtures, or
other contents of the Premises, or if any such changes, modifications,
alterations, additional sprinkler heads or other equipment, become necessary
other than as a result of the Tenant Improvement Work performed pursuant to
Appendix D to prevent the imposition of a penalty or charge against the full
----------
allowance for a sprinkler system in the fire insurance rate as fixed by said
Exchange, or by any fire insurance company, Tenant shall, at Tenant's expense,
promptly make and supply such changes, modifications, alterations, additional
sprinkler heads or other equipment. Landlord shall be responsible for having the
Building sprinkler system(s) maintained and inspected as required by governing
regulations.
25. MISCELLANEOUS.
A. Covenants Binding on Successors. Subject to the terms and
-------------------------------
provisions of Section 14 of this Lease, each provision of this Lease shall
extend to and shall, as the case may require, bind and inure to the benefit of
Landlord and Tenant and their respective heirs, legal representatives and
successors and assigns.
B. Date Payments Are Due. All amounts owed to Landlord hereunder,
---------------------
for which the date of payment is not expressly fixed herein, shall be paid
within thirty (30) days from the date Landlord renders statements of account
therefor and shall bear interest at the rate provided in Section 2E(3) from the
date due until paid.
C. Meaning of "Re-entry" and "Landlord". The words "re-enter" and
------------------------------------
"re-entry" as used in this Lease are not restricted to their technical legal
meaning. The term "Landlord," as used in this Lease, means only the landlord
from time to time, and upon conveying or transferring its interest, such
conveying or transferring lanlord shall be relieved from any further obligation
or liability pursuant to Section 13B(1), 13C, 15 and 17 of this Lease.
D. Time is of the Essence. Time is of the essence of this Lease and
----------------------
each and all of its provisions.
E. No Option. Submission of this instrument for examination or
---------
signature by Tenant does not constitute a reservation of or option for lease,
and it is not effective as a lease or otherwise until execution and delivery by
both Landlord and Tenant.
F. Severability. The invalidity or unenforceability of any provision
------------
hereof shall not affect or impair any other provisions.
G. Governing Laws. This Lease shall be governed by and construed
--------------
pursuant to the laws of the State of Wisconsin.
H. Lease Modification. Should any mortgagee require a modification
------------------
of this Lease, which modification will not bring about any increased cost or
expense to Tenant or in any other way substantially change the rights and
obligations of Tenant hereunder, Tenant agrees that this Lease may be so
modified.
I. No Oral Modification. No subsequent alteration, amendment, change
--------------------
or addition to this Lease shall be binding upon Landlord or Tenant unless in
writing signed by both parties.
J. Litigation and Arbitration Costs. In the event of any litigation
--------------------------------
or arbitration between the parties hereto with respect to the enforcement or
interpretation of this Lease, the nonprevailing party shall pay the attorney's
fees, court costs and other costs of the prevailing party, provided that Tenant
shall notify Landlord of any alleged breach of Landlord's obligations under this
Lease and shall take no action with respect to such breach as long as Landlord
promptly commences to cure and diligently proceeds to complete the cure of said
breach within thirty (30) days after written notice thereof by Tenant or, with
respect to a default which cannot reasonably be cured within thirty (30) days,
if Landlord immediately commences to cure and diligently proceeds to complete
the cure of such default within a reasonable time period, which shall in no
event beyond ninety (90) days after Landlord receives written notice of such
default. Each party hereto shall pay the attorney's fees, court costs (if any)
and other costs incurred by the other party in any litigation, negotiation
or transaction in which such party causes the other party, without the other
party's fault, to become involved or concerned (including, without
limitation, any requests for Landlord's consent to a sublet or assignment).
K. Captions. The marginal headings and titles to the paragraphs of
--------
this Lease are not a part of this Lease and shall have no effect upon the
construction or interpretation of any part hereof.
L. Remedies and Rights may be Exercised by Landlord in its Own Name;
----------------------------------------------------------------
Authority to Execute this Lease. All rights and remedies of Landlord under this
-------------------------------
Lease, or that may be provided by law, may be exercised by Landlord in its own
name individually, or in its name by any agent thereof, and all legal
proceedings for the enforcement of any such rights or remedies, may be commenced
and prosecuted to final judgment and executed by Landlord in its own name
individually or in its name by any agent thereof. Landlord and Tenant each
represents to the other that each has full power and authority to execute this
Lease and to make and perform the agreements herein contained.
M. Payments to Affiliates. Nothing in this Lease shall be construed
----------------------
to prevent Landlord from paying for services rendered or materials delivered
with respect to the Project or to the Premises (including, without limitation,
management services and contracting out capital improvements or other capital
repairs or construction items) by affiliates of Landlord provided that the fees
or costs of such services and materials are at market rates in the Milwaukee
metropolitan area. All such fees or costs paid by Landlord to such affiliates
shall be deemed to constitute Operating Costs on the same terms and conditions
as if such fees and costs were paid to non-affiliates of Landlord.
N. Entire Agreement. This Lease (including, without limitation, any
----------------
Rider attached hereto and Appendix A through E, all of which are incorporated
herein by this reference) constitutes the entire agreement between the Landlord
and the Tenant. Tenant acknowledges that it has not been induced to enter this
Lease by any promises, assurances, agreements, statements or representations
(collectively "Representations") which are not set forth in this Lease
(including without limitation any Representations concerning Operating Costs or
Taxes). Tenant acknowledges that it has not relied on any such Representations,
agrees that no such Representations shall be used in the construction or
interpretation of this Lease and agrees that Landlord shall have no liability
for any consequences arising as a result of any such Representations.
O. Landlord's Title. Landlord's title is and always shall be
----------------
paramount to the interest of Tenant, and nothing herein contained shall
empower Tenant to do any act which can, shall or may encumber Landlord's title.
P. Light and Air Rights. This Lease does not grant any rights to
--------------------
light or air over or about the Project. Landlord specifically excepts and
reserves to itself the use of any roofs, the exterior portions of the Premises,
all rights to and the land and improvements below the improved floor level of
the Premises, the improvements and air rights above the Premises and the
improvements and air rights located outside the demising walls of the Premises,
and such areas within the Premises as are required for installation of utility
lines and other installations required to serve any occupants of the Building
and the right to maintain and repair the same and no rights with respect thereto
are conferred upon Tenant unless otherwise specifically provided herein.
Q. Rights Reserved or Granted. Any rights reserved or granted to
--------------------------
Landlord hereunder may be exercised by Landlord or any of its agents, employees,
contractors or designees.
R. Meanings of Words. The words "Landlord" and "Tenant" whenever
-----------------
used in this Lease shall be construed to mean the plural where necessary, and
the necessary grammatical changes required to make the provisions hereof apply
either to entities or individuals, or men or women, shall in all cases be
assumed as though in each case fully expressed.
S. Rent not Based on Income. It is agreed by Landlord and Tenant
------------------------
that no rental or other payment for the use, occupancy or utilization of the
Premises demised hereunder shall be, or is, based in whole or in part on the net
income or profits derived by any person from the Building or the Premises so
leased, used, occupied, or utilized, and Tenant further agrees that it will not
enter into any sublease, license, concession or other agreements for any use,
occupancy or utilization of the Premises which provides for a rental or other
payment for such use, occupancy or utilization based in whole or in part on the
net income or profits derived by any person from the Premises so leased, used,
occupied, or utilized.
T. Non-Exclusivity. Tenant is not granted by this Lease and shall
---------------
not be entitled to have any exclusive rights in the Building other than the
rights of its occupancy.
26. EXCULPATORY PROVISIONS. It is expressly understood and agreed by and
between the parties hereto, anything herein to the contrary notwithstanding,
that each and all of the representations, warranties, covenants, undertakings
and agreements herein made on the part of any Landlord while in form purporting
to be the representations, warranties, covenants, undertakings and agreements of
such Landlord are nevertheless each and every one of them made and intended, not
as personal representations, warranties, covenants, undertakings and agreements
by such Landlord, or for the purpose or with the intention of binding such
Landlord personally, but are made and intended for the purpose only of
subjecting such Landlord's interest in the Premises and the Project to the terms
of this Lease and for no other purpose whatsoever, and in case of default
hereunder by such Landlord (or default through, under or by any of the agents,
servants, employees or representatives of such Landlord), Tenant shall look
solely to the interests of such Landlord in the Premises and the Project; that
no Landlord shall have any personal liability to pay any indebtedness accruing
hereunder or to perform any covenant, either express or implied, herein
contained; that no personal liability or personal responsibility of any sort is
assumed by, nor shall at any time be asserted or enforceable against, any
Landlord on account of this Lease or on account of any representation, warranty,
covenant, undertaking or agreement of Landlord in this Lease contained, either
express or implied, all such personal liability, if any, being expressly waived
and released by Tenant and by all persons claiming by, through or under Tenant;
and that as to any partnership which is a Landlord a deficit capital account of
any partner of such partnership shall not be deemed to be an asset or property
of such partnership.
27. AUTHORITY. Tenant is a [corporation] duly organized, validly existing
and in good standing under the laws of the State of Wisconsin and has the power
and authority to consummate this Lease. All proceedings of Tenant necessary to
consummate this Lease have been duly taken in accordance with law. The persons
executing this Lease on behalf of the Tenant have been duly authorized to
execute this Lease, and if the Tenant is a corporation, this Lease has been
executed by two duly authorized officers of such corporation.
28. OPTIONS TO EXTEND. Subject to the terms and conditions of this
paragraph, the Term of this Lease may be extended, at the option of Tenant, for
two additional periods of three years each (the "Extension Terms"). The
Extension Terms shall be upon the same terms, covenants and conditions
contained in this Lease except for the amount of Base Rent payable during the
Extension Terms, and any reference in the Lease to the "Term" of the Lease shall
be deemed to include the Extension Terms and apply thereto, unless it is
expressly provided otherwise. Tenant shall have no extension option beyond the
aforesaid two extension options. Any termination of this Lease shall terminate
all rights under this Paragraph 28.
A. The options to extend the term of this Lease shall apply only to
the Premises.
B. The Base Rent due during the Extension Terms for any space then
constituting a portion of the Premises shall be at a rate equal to the greater
of (i) the amount of Base Rent due for the rental period immediately preceding
the particular Extension Term, or (ii) the Market Rent. The Term "Market Rent"
shall mean the rental rate and applicable adjustments (as reasonably determined
by Landlord) for new leases or lease renewals of comparably located and finished
space, of a size similar to the Premises, in the ▇▇▇▇▇ Deer, Wisconsin area, for
buildings of similar age and quality to the Building, including inducements and
allowances. Tenant's obligation to pay Operating Costs and Taxes pursuant to the
Lease shall continue during the Extension Terms.
C. Such options to extend shall be exercised by Tenant delivering an
initial non-binding written notice to Landlord of its intent to exercise its
option to extend on or before twelve (12) full calendar months prior to the
expiration of the then current term of the Lease or the then current Extension
Term. Thereafter and no later than eleven (11) full calendar months prior to
the expiration of the then current term of this Lease or the then current
Extension Term, Landlord shall calculate the Market Rent for the Premises, which
calculation shall reflect the Market Rent that would be payable per annum for a
term commencing on the first day of the particular Extension Term. If the
Market Rent as calculated by Landlord is not acceptable to Tenant, then Landlord
and Tenant shall each select an appraiser and each of the appraisers so selected
shall establish a Market Rent for the Premises. If the two appraisals are within
five percent (5%) of each other, then the arithmetic average of the two
appraisals shall be the Market Rent. If the two appraisals are not within five
percent (5%) of each other, then each appraiser shall select a third appraiser
who will establish the Market Rent and the arithmetic average of the two closest
appraisals shall be the Market Rent. Tenant shall give Landlord final binding
written notice of the exercise of its option to extend, if at all, no later than
nine (9) full calendar months prior to the expiration of the then current term
of the Lease or the then current Extension Term.
D. Tenant's right to exercise its option to extend this Lease is
subject to the following conditions: (i) that on the date Tenant delivers its
final binding written notice of the exercise of its option to extend, Tenant is
not in default beyond any applicable grace period under any of the terms,
covenants or conditions of the Lease, and (ii) except for an assignment or
sublet permitted pursuant to Section 14 of this Lease, that Tenant shall not
have assigned the Lease or sublet the Premises at any time during the period
commencing with the date that Tenant delivers its final binding notice to
Landlord of its exercise of such option to extend and ending on the commencement
date of the particular Extension Term, or at any time prior to such period, if
such assignment or sublease extends into such period.
E. If Tenant fails to give its initial non-binding written notice of
intent or its final written notice of the exercise of its option to extend when
due as provided in this Paragraph 28, Tenant will be deemed to have waived all
of its options to extend the term of this Lease.
29. CODE VIOLATIONS. The Property Manager in charge of the Project has
not received any notice of any violation by the Project of any law, rule,
regulation or ordinance.
30. TERMINATION OPTION. Notwithstanding anything contained herein to the
contrary, if at the time of the giving of the Termination Notice (as defined
below) there are no uncured defaults by Tenant under the Lease, Tenant shall
have an option to terminate the Lease in its entirety (the "Termination
Option"), effective on the last day of Year 4 (the "Early Termination Date") by
delivering its written notice of the exercise of its option to terminate this
Lease (the "Termination Notice") to Landlord on or before the last day of Year
3, and by timely paying the Termination Fee, as set forth below. The terms
"Year 4" and "Year 3" are defined on the Rent Schedule set forth at Page 1,
Insert 2 of the Rider to this Lease.
If Tenant delivers its Termination Notice in accordance with the terms
and conditions of this Paragraph 30 and timely pays the Termination Fee, then as
of the Early Termination Date, this Lease shall terminate and Tenant shall be
and remain liable for the payment to Landlord of all rent and other sums due or
accrued and for the performance and keeping of all the covenants, agreements and
obligations under the Lease to be performed, paid and kept by Tenant prior to
the Early Termination Date. In the event the Tenant fails to completely vacate
the Premises and surrender possession thereof to Landlord in accordance with the
terms and conditions of this Lease on or prior to the Early Termination Date,
such failure shall be treated as a holding over by Tenant and Landlord shall be
entitled to all of its remedies therefor pursuant to the Lease.
If Tenant exercises its option to terminate this Lease, Tenant shall
simultaneously with the delivery to Landlord of the Termination Notice, deliver
to Landlord a Termination Fee, payable in immediately available funds, in an
amount equal to $2,138,456.57. If Tenant fails to pay the Termination Fee
simultaneously with the delivery of the Termination Notice, Landlord may elect,
upon notice given to Tenant, to declare the Termination Notice null and void,
and the Lease shall continue in full force and effect as if Tenant had not
exercised this termination right.
31. PRIOR LEASE. Tenant occupies the Existing Space under prior leases
between HRG-Wisconsin, Inc., as agent for ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Deer Holdings Limited
Partnership, as Landlord, and Tenant, dated May 1, 1992, as amended, and between
HRG-Wisconsin, Inc., as agent for ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Deer Holdings Limited
Partnership, as Landlord, dated December 3, 1991, as amended (the two leases
being herein collectively referred to as the "Prior Lease"). Tenant understands
and agrees that Tenant shall be and remain liable for the payment of all Rent
and other sums due or accrued and for the performance and keeping of all of the
covenants, agreements and obligations under the Prior Lease to be performed,
paid and kept by Tenant prior to the Commencement Date. Commencing with the
Commencement Date, the terms and conditions of this Lease shall supersede and
replace in their entirety, the terms and conditions of the Prior Lease with
respect to Tenant's use and occupancy of the Existing Space.
32. ENVIRONMENTAL INDEMNIFICATION. The on-site Project Manager has
received no notice of and has no actual knowledge of any existing violations of
Environmental Laws.
IN WITNESS WHEREOF, the parties have executed this Lease on the date first
above written.
LANDLORD:
TIAA REALTY, INC., a Delaware corporation
By: TEACHERS INSURANCE AND ANNUITY ASSOCIATION
OF AMERICA, a New York corporation, its
authorized representative
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Print Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------
Title: ASSOCIATE DIRECTOR
----------------------------------
TENANT:
M&I DATA SERVICES, A DIVISION OF ▇▇▇▇▇▇▇▇
& ILSLEY CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
Print Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Title: CFO
---------------------------------------
Attest: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Print Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Title: Vice President
---------------------------------------
Exh. 10.19(a)
APPENDICES
Appendix A Plan of Premises
Appendix B Cleaning Schedule
Appendix C Rules and Regulations
Appendix D Tenant Improvement Agreement
Appendix E Mortgages Currently Affecting the Project Definitions
Appendix F List of Equipment
The above appendices to this exhibit have been omitted. The appendices will be
furnished supplementally to the Securities and Exchange Commission upon request.