Michigan-Southfield-20700 Civic Center Drive Lease - Teachers Michigan Properties Inc. and Vastera Inc.
================================================================================
LEASE
BETWEEN
TEACHERS MICHIGAN
PROPERTIES, INC.,
AS LANDLORD
AND
VASTERA, INC.,
AS TENANT
================================================================================
<PAGE>
LEASE
THIS LEASE is made and entered into as of November 13, 2000, by and
between TEACHERS MICHIGAN PROPERTIES, INC., a Delaware Corporation (the
"Landlord"), having its principal office at 730 Third Avenue, New York, New York
10017, and Tenant named below who agree as follows:
SECTION 1.
BASIC LEASE PROVISIONS
1.01 The following basic lease provisions are an integral part of this
Lease and are referred to in other Sections of this Lease.
(a) Tenant's name and jurisdiction of formation:
Vastera, Inc., a Delaware Corporation
Tenant Social Security/Taxpayer Identification Number: 54-161657
Tenant Standard Industrial Classification (SIC) Code Number: 7373
(b) Tenant's Address: c/o General Counsel David Zerbee Esq.
45025 Aviation Drive, Suite 200
Dulles, VA 20166-7554
Copies to:
Office Manager
on Premises
(c) Manager's Name REDICO Management, Inc.
and Address: 20500 Civic Center Drive
Suite 3000
Southfield, Michigan 48076
(d) Project Name: Oakland Commons
Building Name: Oakland Commons
Building Address: 20700 Civic Center Drive
Southfield, Michigan 48076
(e) Premises: Floor: 5th
Suite Number: 500
Square Feet: 23,341 usable / 26,259 rentable
(f) Term:
Scheduled Occupancy Date: March 1, 2001
Scheduled Expiration Date of Initial Term: February 28, 2006
Initial Term: Five (5) years
(g) Base Rent:
<TABLE>
<CAPTION>
-----------------------------------------------------------
Date Monthly Base Rent Annual Base Rent
-----------------------------------------------------------
<S> <C> <C> <C>
3/1/01-2/28/02 $53,065.06 $636,780.72
-----------------------------------------------------------
3/1/02-2/28/03 $54,706.25 $656,475.00
-----------------------------------------------------------
3/1/03-2/28/04 $56,347.44 $676,169.28
-----------------------------------------------------------
3/1/04-2/28/05 $57,988.63 $695,863.56
-----------------------------------------------------------
3/1/05-2/28/06 $59,629.81 $715,557.72
-----------------------------------------------------------
AGGREGATE $3,380,846.28
-----------------------------------------------------------
</TABLE>
(h) Tenant's Proportionate Share:
26,259 Rentable square feet in the Premises divided by
156,083 Rentable square feet in the Building = 16.8237 %
(i) Number of Tenant's Designated Parking Spaces: NONE at an
initial increase of additional rent of $0.00.
(j) Security Deposit: $250,000.00 (Letter of Credit)
(k) Tenant Improvement Allowance: See Exhibit D
(l) Base Year: 2001
(m) Permitted Use: General Office
1
<PAGE>
SECTION 2.
THE PREMISES
2.01 Landlord, in consideration of the rents to be paid and the
covenants and agreements to be performed by Tenant, hereby leases to Tenant the
premises set forth in Section 1.01(e) (the "Premises") in the building(s) (the
"Building") described in Section 1.01(d), together with the right to use the
parking and common areas and facilities which may be furnished from time to time
by Landlord (collectively the "Common Areas"), including, without limitation,
all common elevators, hallways and stairwells located within the Building, and
all common parking facilities, driveways and sidewalks, in common with Landlord
and with the tenants and occupants of the Project, their agents, employees,
customers, clients and invitees. Tenant agrees that the Premises and the
Building shall be deemed to include the number of rentable square feet set forth
in Section 1.01(h) and in no event shall Tenant have the right to challenge,
demand, request or receive any change in the base rent or other sums due
hereunder as a result of any claimed or actual error or omission in the rentable
or usable square footage of the Premises, the Building or the Project. Landlord
reserves the right at any time and from time to time to make alterations or
additions to the Building or the Common Areas, and to demolish improvements on
and to build additional improvements on the land surrounding the Building during
which time Tenant shall continue to have access to the Building and the Premises
and Tenant's use of the Premises shall not be materially adversely affected and
to add or change the name of the Building from time to time, in its sole
discretion without the consent of Tenant and the same shall not be construed as
a breach of this Lease. The Building, the other buildings listed in Section
1.01(d), the Common Areas and the land surrounding the Building and the Common
Areas are hereinafter collectively referred to as the "Project". If Landlord
decides to change the name of the building Landlord will notify Tenant in
writing 60 days prior to such name change.
2.02 Landlord agrees to construct the improvements to the Premises (the
"Tenant Improvements") in accordance with the space plan(s) (as it may be
amended by approved change orders, the "Plans"), attached as Exhibit "A". All
material changes from the Plans which Landlord determines are necessary during
construction shall be submitted to Tenant for Tenant's approval or rejection. If
Tenant fails to notify Landlord of Tenant's approval or rejection of such
changes within five (5) days of receipt thereof, Tenant shall be conclusively
deemed to have approved such changes. Landlord's approval of the Plans shall not
constitute a representation, warranty or agreement (and Landlord shall have no
responsibility or liability for) the completeness or design sufficiency of the
Plans or the Tenant Improvements, or the compliance of the Plans or Tenant
Improvements with any laws, rules or regulations of any governmental or other
authority.
2.03 The provisions of Exhibit E, special provisions, shall govern the
cost of constructing Tenant Improvements.
2.04 (a) Landlord, at its sole cost and expense, shall construct the
base building shell and core elements of the building described on Exhibit E
without reimbursement from the Tenant Improvement Allowance (as defined below).
Landlord intends to construct the Tenant Improvements with no fee for
construction management and deliver the Premises "ready for occupancy" (as
defined below) to Tenant on the Scheduled Occupancy Date set forth in Paragraph
1.01(f). The Premises will be conclusively deemed "ready for occupancy" on the
earlier to occur of when: (i) the work to be done under this Paragraph has been
substantially completed and after the issuance of a conditional or temporary
certificate of occupancy for the Premises by the appropriate government agency
within whose jurisdiction the Building is located, or (ii) when Tenant takes
possession of the Premises. The Premises will not be considered unready or
incomplete if only minor or insubstantial details of construction, decoration or
mechanical adjustments remain to be done within the Premises or Common Areas of
the Building, or if only landscaping or exterior trim remains to be done outside
the Premises, or if the delay in the availability of the Premises for Tenant's
occupancy is caused in whole or in material part by Tenant. By occupying the
Premises, Tenant will be deemed to have accepted the Premises and to have
acknowledged that they are in the condition called for in this Lease, subject
only to "punch list" items (as the term "punch list" is customarily used in the
construction industry in the area where the Project is located) identified by
Tenant by written notice delivered to Landlord within ten (10) days after the
date Landlord tenders possession of the Premises to Tenant. If in good faith
Landlord is delayed or hindered in construction by any labor dispute, strike,
lockout, fire, unavailability of material, severe weather, acts of God,
restrictive governmental laws or regulations, riots, insurrection, war or other
casualty or events of a similar nature beyond its reasonable control ("Force
Majeure"), the date for the delivery of the Premises to Tenant "ready for
occupancy" shall be extended for the period of delay caused by the Force
Majeure. If Landlord is delayed or hindered in construction as a result of
change orders or other requests by, or acts of, Tenant ("Tenant Delay") the date
for the delivery of the Premises to Tenant "ready for occupancy" shall be
extended by the number of days of delay caused by Tenant Delay. The Scheduled
Occupancy Date as extended as a result of the occurrence of a
2
<PAGE>
Force Majeure or Tenant Delay or with the consent of Tenant, is herein referred
to as the Occupancy Date.
(b) Landlord shall construct the Tenant Improvements in accordance with the
space plans to be developed by Landlord and Tenant. Landlord intends to deliver
the Premises Ready for Occupancy to Tenant on or before March 1, 2001 (the
"Occupancy Date"). The Occupancy Date is predicated upon the strict adherence to
all of the following scheduling requirements (the "Time Schedule Items"): (i)
the construction of the Tenant Improvements shall not include any long lead
items for which the delivery of said item to the Premises exceeds fifteen (15)
business days following acknowledgment of order by vendor; and (ii) Tenant shall
have accepted final Space Plans not later than by December 1, 2000. In the event
Tenant shall not have accepted final Space Plans not later than by December 1,
2000, then Landlord anticipates that the Premises will not be "Ready for
Occupancy" until ninety (90) days after Tenant Accepts the Final Space Plans,
absent any additional Tenant Delay or Force Majeure, and in all events Base
Monthly Rent shall commence not later than March 1, 2001 regardless of whether
the Tenant Improvements are complete or Tenant occupies the space. Noncompliance
with any Time Schedule Items shall be deemed to be a Tenant Delay.
SECTION 3.
THE TERM
3.01 The initial term of this Lease (the "Initial Term or "Term"") will
commence (the "Commencement Date") on the earlier of: (i) the date Tenant takes
possession of the Premises; or (ii) the Occupancy Date; (iii) the date the
Occupancy Date would have occurred in the absence of Tenant Delay. Unless sooner
terminated or extended in accordance with the terms hereof, the Lease will
terminate the number of Lease Years and Months set forth in Paragraph 1.01(f)
after the Commencement Date. If the Commencement Date is other than the first
day of a calendar month, the first Lease Year shall begin on the first day of
the first full calendar month following the Commencement Date. Upon request by
Landlord, Tenant will execute a written instrument confirming the Commencement
Date and the expiration date of the Initial Term.
SECTION 4.
THE BASE RENT
4.01 From and after the Commencement Date, Tenant agrees to pay to
Landlord, as minimum net rental for the Initial Term and Option Terms of this
Lease, the sum(s) set forth in Paragraph 1.01(g) (the "Base Rent"). The term
"Lease Year" as used herein shall be defined to mean a period of twelve (12)
consecutive calendar months. The first Lease Year shall begin on the date
determined in accordance with Section 3.01. Each succeeding Lease Year shall
commence on the anniversary date of the first Lease Year.
4.02 Base Rent and other sums due Landlord hereunder shall be paid by
Tenant to Landlord in equal monthly installments (except as otherwise provided
herein), in advance, without demand and without any setoffs or deductions
whatsoever, on the first day of each and every calendar month (the "Rent Day")
during the Initial Term and Option Terms, if any, at the office of Manager as
set forth in Section 1.01(c), or at such other place as Landlord from time to
time may designate in writing. In the event the Commencement Date is other than
the first day of a calendar month, the Base Rent for the partial first calendar
month of the Initial Term will be prorated on a daily basis based on the number
of days in the calendar month and will be paid in addition to the rent provided
in Paragraph 4.01 above. Base Rent for such partial calendar month and for the
first full calendar month of the first Lease Year shall be paid upon the
execution of this Lease by Tenant.
SECTION 5.
LATE CHARGES AND INTEREST
5.01 Any rent or other sums payable by Tenant to Landlord under this
Lease which are not paid within five (5) days after they are due and written
notice has been provided to Tenant (but if one notice has been given in any
twelve (12) month period, no further notice shall be required during such twelve
(12) month period), will be subject to a late charge of ten (10%) percent of the
amount due. Such late charges will be due and payable as additional rent on or
before the next Rent Day.
5.02 Any rent, late charges or other sums payable by Tenant to Landlord
under this Lease not paid within ten (10) days after the same are due will bear
interest at a per annum rate equal to the lower of: (i) eighteen (18%) percent
per annum, or (ii) the highest rate permitted by law. Such interest will be due
and payable as additional rent on or before the next Rent Day, and will accrue
from the date that such
3
<PAGE>
rent, late charges or other sums are payable under the provisions of this Lease
until actually paid by Tenant.
5.03 Any default in the payment of rent, late charges or other sums
will not be considered cured unless and until the late charges and interest due
hereunder are paid by Tenant to Landlord. If Tenant defaults in paying such late
charges and/or interest, Landlord will have the same remedies as Landlord would
have if Tenant had defaulted in the payment of rent. The obligation hereunder to
pay late charges and interest will exist in addition to, and not in the place
of, the other default provisions of this Lease.
SECTION 6.
OPERATING EXPENSES, UTILITIES, AND TAXES
6.01 In the event that Operating Expenses for the Project, in any
calendar year, exceed the Operating Expenses for the Base Year (as defined in
Paragraph 1.01(l)), Tenant shall pay to Landlord, as additional rent, Tenant's
Proportionate Share (as defined in Paragraph 1.01(h)) of any such excess.
Tenant's obligations hereunder shall be pro-rated for any calendar year in which
Tenant is obligated to pay rent for only a portion thereof. For the purposes of
this Section, the term "Operating Expenses" shall mean and include those
expenses paid or incurred by Landlord for: maintaining, operating, owning, and
repairing the Project, providing electricity, steam, water, sewer, fuel,
heating, lighting, air conditioning, window cleaning, janitorial service,
personal property taxes, insurance (including, but not limited to, fire,
extended coverage, liability, worker's compensation, elevator, boiler and
machinery, war risk, or any other insurance carried in good faith by Landlord
and applicable to the Project); painting, uniforms, management fees, supplies,
sundries, sales, or use taxes on supplies or services; wages and salaries of all
persons engaged in the operation, maintenance and repair of the Project, and
so-called fringe benefits, including social security taxes, unemployment
insurance taxes, providing coverage for disability benefits, pension,
hospitalization, welfare or retirement plans, or any other similar or like
expenses incurred under the provisions of any collective bargaining agreement,
or any other similar or like expenses which Landlord pays or incurs to provide
benefits for employees so engaged in the operation, maintenance and repair of
the Project; the charges of any independent contractor who, under contract with
Landlord or its representatives, does any of the work of operating, maintaining
or repairing the Project; capital expenditures required under any governmental
law or regulation; legal and accounting expenses including, but not limited to,
such expenses as relate to seeking or obtaining reductions in, and refunds of,
real estate taxes; or any other expenses or charges, whether or not hereinbefore
mentioned, which in accordance with generally accepted accounting and management
principles would be considered as an expense of maintaining, operating, owning
or repairing the Project.
The term "Operating Expenses" shall not include the following items:
(1) The cost of repairs and general maintenance due to
casualty or condemnation paid by proceeds of insurance, by Tenant or by other
third parties, and the cost of alterations attributable solely to tenants other
than Tenant;
(2) Any ground lease rental or mortgage principal or interest;
(3) Costs, including permit, license and inspection costs,
incurred in renovating or otherwise improving, decorating, painting or
redecorating vacant space at the Project (except to the extent that such costs
are included in connection with the common areas) or to correct defects in the
construction of the Project;
(4) Depreciation and amortization, except on materials, tools,
supplies and vendor type equipment purchased by Landlord to enable Landlord to
supply services Landlord might otherwise contract for with a third party, where
such depreciation and amortization would otherwise have been included in the
charge for such third party's services, all as determined in accordance with
generally accepted accounting principles ("GAAP") consistently applied and
amortized over the reasonable useful life;
(5) Attorney's fees and accountants' fees incurred in
connection with disputes with present tenants or other occupants of the Project
(not including disputes, the resolution of which would directly benefit all
tenants in the Project);
(6) Except as otherwise set forth above, the costs of new (as
opposed to replacement) capital improvements; provided, the amortization of the
cost of capital improvements which are in replacement of existing capital
improvements shall be amortized over the reasonable useful life;
4
<PAGE>
(7) Amounts paid or incurred by Landlord to affiliates in
excess of the prevailing market rate for management or services in the building
or for supplies or materials at other first class office buildings in the area;
(8) Interest, principal, points and fees on debt or
amortization on any mortgage or mortgages or any other debt instrument
encumbering this lease or the Project;
(9) All items and services for which Tenant or any other
tenant of the Project reimburses Landlord, including costs of excess or
additional services provided to any tenant that are directly billed to such
tenant;
(10) Tax penalties incurred as a result of Landlord's
negligence or inability or unwillingness to make payments when due;
(11) Landlord's general corporate overhead and general
administrative expenses other than those permitted in this Lease;
(12) Any political or charitable contributions made by
Landlord;
(13) Any amount for which Landlord receives reimbursement from
others, including without limitation, from insurers;
(14) Tenant Improvements and leasing commission incurred in
leasing office or other space in the Project;
(15) Expenses incurred in connection with services above
Building Standards of the type that are not provided to Tenant but which are
provided to other tenant(s) of the Building of Project;
(16) Lights and power costs for individual tenant premises.
(17) Collector quality art work but Operating Expenses will
include reasonable and customary decorations.
6.02 If the Project is not fully rented during all or a portion of any
year (including the Base Year), then Landlord shall elect to make an appropriate
adjustment of the Operating Expenses and Real Estate Taxes (as defined below)
for such year and for the Base Year employing sound accounting and management
principles, to determine the amount of Operating Expenses and Real Estate Taxes
that would have been paid or incurred by Landlord had the Project been fully
rented; and the amount so determined shall be deemed to have been the amount of
Operating Expenses and Real Estate Taxes for such year. If any expenses relating
to the Project, though paid in one year, relate to more than one calendar year,
at the option of Landlord such expense may be proportionately allocated among
such related calendar years. In addition, in the event any Operating Expense or
Real Estate Tax applies to only some portion of the Project or is partially
allocable to other buildings or projects, Landlord may allocate such expense
among such buildings and projects in accordance with sound accounting and
management principles to determine the amount of Operating Expenses and Real
Estate Taxes for the Project and the Building.
6.03 In the event that Real Estate Taxes (as hereinafter defined) for
the Project, in any calendar year, exceed the Real Estate Taxes for the Base
Year, Tenant shall pay to Landlord, as additional rent, Tenant's Proportionate
Share of any such excess over and above the Base Real Estate Taxes (as
hereinafter defined). The "Base Real Estate Taxes" shall be the Real Estate
Taxes shown on the bills for which the "due date" occurs in the Base Year. "Real
Estate Taxes" as used herein shall mean real estate taxes, assessments (general,
special, ordinary or extraordinary) sewer rents, rates and charges, taxes based
upon the receipt of rent, and any other federal, state or local charge (general,
special, ordinary or extraordinary) which may now or hereafter be imposed,
levied or assessed against the Project or any part thereof, or on any building
or improvements at any time situated thereon. In the event the State of Michigan
or any political subdivision thereof having taxing authority shall modify,
repeal or abolish the ad valorem tax on real property, or impose a tax or
assessment of any kind or nature upon, against, or with respect to the Project
or the rents payable by Tenant or on the income derived from the Project, or
with respect to Landlord's ownership interest in the Project, which tax is
assessed or imposed by way of substitution for or in addition to all or any part
of the Real Estate Taxes, then such tax or assessment shall be included within
the definitions of "Real Estate Taxes"; provided, however, nothing herein
contained shall impose an obligation on Tenant to pay the general income tax or
Michigan Single Business Tax liabilities of Landlord, except to the extent such
a tax is being used to fund governmental functions presently or previously
funded by ad valorem taxes on real property.
6.04 At any time and from time to time, Landlord may reasonably
estimate the amount by which current Real Estate Taxes and Operating Expenses
are expected to exceed the Real Estate Taxes
5
<PAGE>
and Operating Expenses for the Base Year (the "Estimated Excess Expenses").
Tenant shall pay its Proportionate Share of the Estimated Excess Expenses by
depositing with Landlord on each Rent Day during the term hereof an amount
equal to one-twelfth (1/12) of its annual share of the Estimated Excess
Expenses. Landlord shall deliver to Tenant, within a reasonable period of
time after the close of each calendar year, an annual statement indicating
the amount by which the Real Estate Taxes and Operating Expenses actually
incurred in that calendar year exceed the Real Estate Taxes and Operating
Expenses for the Base Year (the "Actual Excess Expenses"). In the event that
the Actual Excess Expenses exceed the Estimated Excess Expenses, Tenant shall
pay Tenant's Proportionate Share of the difference to Landlord within fifteen
(15) days of delivery of the annual statement. In the event that Estimated
Excess Expenses exceed Actual Excess Expenses, then at Landlord's option
Tenant shall either be reimbursed to the extent that Tenant's payments toward
Tenant's share of the Estimated Excess Expenses exceed Tenant's Proportionate
Share of the Actual Excess Expenses, or Tenant shall be granted a
corresponding credit against the Base Rent or other sums next due Landlord
hereunder.
6.05 Tenant shall be responsible for and pay before delinquent all
municipal, county, and state taxes assessed, levied or imposed during the term
of this Lease, and all extensions thereof, upon the leasehold interest and all
furniture, fixtures, machinery, equipment, apparatus, systems and all other
personal property of any kind whatsoever located at, placed in or used in
connection with the Premises.
6.06 Landlord agrees with Tenant that Landlord will furnish heat and
air conditioning during normal business hours (8:00 a.m. to 6:00 p.m. Monday
through Friday and Saturday 9:00 a.m. to 2:00 p.m., excluding Building
holidays), usual and customary janitorial services, as set forth in Exhibit "C",
and provide water and sewer service to the Premises and hot and cold water for
ordinary lavatory purposes in the common area restrooms. However, if Tenant uses
or consumes water for any other purpose or in unusual quantities (of which fact
Landlord shall be the sole judge) Landlord may install a water meter at Tenant's
expense which Tenant shall thereafter maintain at Tenant's expense in good
working order and repair, to register such water consumption. Tenant shall pay
for the quantity of water shown on said meter, together with the sewer rents,
debt service and other charges made by the local utilities for water and sewer
service, as additional rent, at the secondary rate per gallon (general service
rate) established by the applicable governmental authority or the applicable
utility company providing the water. Whenever machines or equipment which
generate heat are used in the Premises which affect the temperature otherwise
maintained by the air-conditioning system, Landlord reserves the right to
install supplementary air-conditioning equipment in the Premises, and the cost
thereof, and the expense of operation and maintenance thereof, shall be paid by
Tenant to Landlord. Although Landlord will provide air-conditioning and/or heat
upon the prior request of Tenant in accordance with Building practices for hours
other than regular business hours, Tenant will pay Landlord's charges for
providing such service. Said charges shall include a cost equal to the cost to
operate the equipment for Tenant's expanded business hours and days, and
Landlord's maintenance, equipment amortization and other appropriate charges
which Landlord determines are attributable to operating the equipment for
periods in excess of the normal business hours described above.
6.07 Tenant shall pay all charges made against the Premises for
electricity used upon or furnished to the Premises as and when due during the
continuance of this Lease. To the extent electricity is not separately metered
for the Premises, Landlord shall make a determination of Tenant's usage of
electricity supplied to the Building, and Tenant agrees to pay for such
electricity within thirty (30) days after request therefor from Landlord.
Whether or not metered, Tenant shall pay for the electricity at the secondary
rate (general service rate) established by the applicable governmental authority
or the applicable utility company providing the electricity. Tenant shall also
pay for fluorescent or other electric light bulbs or tubes and electric
equipment used in the leased Premises.
SECTION 7.
USE OF PREMISES
7.01 Tenant shall occupy and use the Premises during the Term for the
purposes set forth in Section 1.01(m) only, and for no other purpose without the
prior written consent of Landlord. Tenant agrees that it will not use or permit
any person to use the Premises or any part thereof for any use or purpose in
violation of the laws of the United States, the laws, ordinances or other
regulations of the State or municipality in which the Premises are located, or
of any other lawful authorities, or any building and use restrictions, now or
hereafter affecting the Premises or any part thereof.
7.02 Tenant will not do or permit any act or thing to be done in or to
the Premises or the Project which will invalidate or be in conflict with any
terms or conditions required to be contained in any property or casualty
insurance policy authorized to be issued in the State of Michigan or any term or
condition of the Insurance Services Office's (ISO) Commercial Property Insurance
and/or Commercial General Liability Insurance Conditions or any different or
additional terms and conditions of any insurance policy in effect on the
Premises or the Project from time to time (collectively the "Building
Insurance"), Nor shall Tenant do nor permit any other act or thing to be done in
or to the Premises or the Project which
6
<PAGE>
shall or might subject Landlord to any liability or responsibility to any person
or for property damage, nor shall Tenant use the Premises or keep anything on or
in the Project except as now or hereafter permitted by the fire regulations, the
fire department or zoning, health, safety, land use or other regulations.
Tenant, at Tenant's sole cost and expense, shall comply with all requirements
and recommendations set forth by any property or casualty insurer or reinsurer
providing coverage for the Premises or the Project or by any person or entity
engaged by Landlord or Manager to perform any loss control, analysis or
assessment for the Premises or the Project. Tenant shall not do or permit
anything to be done in or upon the Premises or the Project or bring or keep
anything therein or use the Premises or the Project in a manner which increases
the rate of premium for any Building Insurance or any property or equipment
located therein over the rate in effect at the commencement of the Term of this
Lease. In addition, Tenant agrees to pay Landlord the amount of any increase in
premiums for insurance which may be charged during the term of this Lease
resulting from the act or omissions of Tenant or the character or nature of its
occupancy or use of the Project or the Premises, whether or not Landlord has
consented to the same. Any scheduled or "make-up" of any insurance rate for the
Premises, the Building or the Project issued by any insurance company
establishing insurance premium rates for the Premises, Building or the Project
shall be PRIMA FACIE evidence of the facts therein stated and of the several
items and charges in the insurance premium rates then applicable to the
Premises, the Building or the Project. Tenant shall give Landlord notice
promptly after Tenant learns of any accident, emergency, or occurrence for which
Landlord is or may be liable, or any fire or other casualty or damage or defects
to the Premises, the Building or the Project which Landlord is or may be
responsible or which constitutes the property of Landlord.
7.03 Tenant shall not perform acts or carry on any activities or engage
in any practices which may injure the Premises or any portion of the Project or
which may be a nuisance or menace to other persons on or in the Project. Tenant
shall pay all costs, expenses, fines, penalties, or damages which may be imposed
upon Landlord by reason of Tenant's failure to comply with the provisions of
this Section.
7.04 Tenant will not place any load upon any floor of the Premises
exceeding the floor load per square foot area which it was designed to carry and
which is allowed by law. Landlord reserves the right to prescribe the weight and
position of all safes, business machines and mechanical equipment. Such items
shall be placed and maintained by Tenant, at Tenant's expense, in settings
sufficient in Landlord's judgment, to absorb and prevent vibration, noise and
annoyance. If at any time any windows of the Premises are temporarily or
permanently closed, darkened or covered for any reason whatsoever, including
Landlord's own acts, Landlord shall not be liable for any damage Tenant may
sustain thereby, and the same shall not be considered a default under this Lease
and Tenant shall not be entitled to any compensation therefore nor abatement of
any Base Rent or any other sums due hereunder, nor shall the same release Tenant
from its obligations hereunder nor constitute an eviction, construction, actual
or otherwise.
7.05 During the term hereof, and consistent with janitorial services
provided by Landlord, Tenant will keep the Premises in a clean and wholesome
condition, will use the same in a careful and proper manner, and generally will
comply with all laws, ordinances, orders and regulations affecting the Premises
and the cleanliness, safety, occupancy and use thereof. Tenant will not commit
waste in or on the Premises, and will use the Premises in accordance with the
Rules and Regulations of the Project, as set forth in Exhibit B, attached hereto
and made a part hereof.
7.06 As between Landlord and Tenant, Tenant shall be responsible for
any alterations, changes or improvements to the Premises which may be necessary
in order for the Premises and Tenant's use thereof to be in compliance with the
Americans with Disabilities Act of 1990 and its state and local counterparts or
equivalents (the "Disabilities Act") during the term of this Lease. To the best
of Landlord's knowledge, but without any current investigation, the Common Areas
currently comply in all material respects with the Disabilities Act (subject,
however, to Landlord's right to challenge in court or through administrative
proceedings any regulations or rules implemented with respect to the
Disabilities Act).
7.07 For the purposes of this Lease, the term "Hazardous Materials"
shall mean, collectively, (i) any biological materials, chemicals, materials,
substances or wastes which are now or hereafter become defined as or included in
the definition of "hazardous substances", "hazardous wastes", "hazardous
materials", "extremely hazardous wastes", "restricted hazardous wastes", "toxic
substances", "toxic pollutants", or words of similar import, under any
applicable Environmental Law (as defined below) and (ii) any petroleum or
petroleum products and asbestos in any form that is or could become friable.
7.08 For the purposes of this Lease, the term "Environmental Laws"
shall mean all federal, state, and local laws, statutes, ordinances,
regulations, criteria, guidelines and rules of common law now or hereafter in
effect, and in each case as amended, and any judicial or administrative
interpretation thereof, including, without limitation, laws and regulations
relating to emissions, discharges, releases or threatened releases or Hazardous
Materials or otherwise related to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of Hazardous Materials.
7
<PAGE>
Environmental Laws include but are not limited to the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as amended; the
Resource Conservation and Recovery Act, as amended; the Clean Air Act, as
amended; the Clean Water Act, as amended; and their state and local counterparts
or equivalents.
7.09 Tenant shall not (either with or without negligence) cause or
permit the escape, disposal or release of any Hazardous Materials. Tenant shall
not allow the storage or use of such Hazardous Materials on the Premises or the
Project in any manner prohibited by the Environmental Laws or by the highest
standards prevailing in the industry for the storage and use of such Hazardous
Materials, nor allow to be brought into the Premises or the Project any such
Hazardous Materials except to use in the ordinary course of Tenant's business,
and then only after written notice is given to Landlord of the identity of such
Hazardous Materials and Landlord consents in writing to the use of such
materials. Landlord shall have the right at any times during the term of this
Lease to perform assessments of the environmental condition of the Premises and
of Tenant's compliance with this Section 7.09. In connection with any such
assessment, Landlord shall have the right to enter and inspect the Premises and
perform tests (including physically invasive tests), provided such tests are
performed in a manner that minimizes disruption to Tenant. Tenant will cooperate
with Landlord in connection with any such assessment by, among other things,
responding to inquires and providing relevant documentation and records. Tenant
will accept custody and arrange for the disposal of any Hazardous Materials that
are required to be disposed of as a result of those tests. Landlord shall have
no liability or responsibility to Tenant with respect to any such assessment or
test or with respect to results of any such assessment or test. If any lender or
governmental agency shall ever require testing to ascertain whether or not there
has been any release of Hazardous Materials, then the reasonable costs thereof
shall be reimbursed by Tenant to Landlord upon demand as additional charges if
such requirement applies to the Premises or Tenant's activities on the Project.
If any inspection indicates any (i) non-compliance with any Environmental Law or
the highest standards prevailing in the industry for the storage and use of
Hazardous Materials; (ii) damage; or (iii) contamination, Tenant shall, at its
cost and expense, remedy such non-compliance, damage or contamination. In
addition, Tenant shall execute affidavits, representations and the like from
time to time at Landlord's request concerning Tenant's best knowledge and belief
regarding the presence of Hazardous Materials on the Premises. Irrespective of
whether Landlord elects to inspect the Premises, if Hazardous Materials are
found on or about the Premises, Landlord shall have no responsibility, liability
or obligation whatsoever with respect to the existence, removal or
transportation of the Hazardous Material or the restoration and remediation of
the Premises. Tenant's obligations under this paragraph with respect to any
environmental condition shall not be applicable to the extent that such
environmental condition (a) exists prior to the commencement of the initial term
of the Lease, or (b) results from (i) the actions or omission of Landlord either
before the commencement of this Lease, during the term hereof or after the
termination of this Lease, or (ii) the actions or omissions of any preceding or
succeeding tenant or owner of the Premises, Further, Landlord shall have the
right to require Tenant to immediately terminate the conduct of any activity in
violation of the Environmental Law, the highest standards prevailing in the
industry for the storage and use of Hazardous Materials or, if none exist, the
standards determined by Landlord.
7.10 Tenant further agrees that it will not, by either action or
inaction, invite or otherwise cause agents or representatives of any federal,
state or local governmental agency to enter onto the Premises or the Project
and/or investigate the Premises or the Project. This agreement does not allow
Tenant to obstruct any such entry or investigation and the mere fact of a
regulatory agency entry or investigation without Tenant's involvement either by
action or inaction shall not be deemed a breach of this lease. Nothing set forth
in this paragraph shall prohibit Tenant from reporting any fact or condition
which Tenant has been advised it has a legal obligation to report provided
Tenant first notifies Landlord of such fact or condition and Tenant's intention
to report the fact or condition.
7.11 Tenant shall indemnify, hold harmless and defend Landlord, its
licensees, servants, agents, employees and contractors from any loss, damage,
claim, liability or expense (including reasonable attorney's fees) arising out
of the failure of the Premises or Tenant's use thereof to be in compliance with
Disabilities Act. Tenant shall not be required to indemnify, hold harmless or
defend Landlord for the failure, if any, of the common areas (including the
parking areas, ramps and walkways) to comply with the Disabilities Act. Tenant
shall indemnify, hold harmless and defend Landlord, its licensees, servants,
agents, employees and contractors for any loss, damage, claim, liability or
expense (including reasonable attorney's fees) arising out of any violation of
any Environmental Law(s) by Tenant or its responsible parties (as described in
Section 7.09 above) on the Premises or the Project which occurs after the date
hereof. Tenant shall notify Landlord as soon as possible after Tenant learns of
the existence of or potential for any such loss, damage, claim, liability or
expense arising out of any violation or suspected violation of any Environmental
Law(s) or the Disabilities Act. In the event Tenant refuses to address such
violation or suspected violation within five (5) days of such notice from
Landlord, and, thereafter, to investigate such violation or suspected violation,
and promptly commence and diligently pursue any action required to address such
violation or suspected violation, Landlord shall have the right, in addition to
every other right and remedy it may have hereunder, to terminate this Lease by
giving ten (10) days prior written notice thereof to Tenant, and upon the
expiration of such ten (10) days, this Lease
8
<PAGE>
shall terminate. The covenants set forth herein shall survive the expiration or
earlier termination of this Lease.
SECTION 8.
INSURANCE
8.01 Commencing on the Commencement Date, Tenant shall, during the Term
of this Lease, maintain in full force and effect policies of commercial general
liability insurance (including premises, operation, bodily injury, personal
injury, death, independent contractors, products and completed operations, broad
form contractual liability and broad form property damage coverage), in a
combined single limit amount of not less than Five Million Dollars ($5,000,000),
per occurrence (exclusive of defense costs), against all claims, demands or
actions with respect to damage, injury or death made by or on behalf of any
person or entity, arising from or relating to the conduct and operation of
Tenant's business in, on or about the Premises (which shall include Tenant's
signs, if any), or arising from or related to any act or omission of Tenant or
of Tenant's principals, officers, agents, contractors, servants, employees,
licensees and invitees. Whenever, in Landlord's reasonable judgment, good
business practice and changing conditions indicate a need for additional amounts
or different types of insurance coverage, Tenant shall, within ten (10) days
after Landlord's request, obtain such insurance coverage, at Tenant's sole cost
and expense.
8.02 Commencing on the Commencement Date, Tenant shall obtain and
maintain policies of workers' compensation and employers' liability insurance
which shall provide for statutory workers' compensation benefits and employers'
liability limits of not less than that required by law.
8.03 Commencing on the Commencement Date, Tenant shall obtain and
maintain insurance protecting and indemnifying Tenant against any and all damage
to or loss of any personal property, fixtures, leasehold improvements,
alterations, decorations, installations, repairs, additions, replacements or
other physical changes in or about the Premises, including but not limited to
the Tenant Improvements, and all claims and liabilities relating thereto, for
their full replacement value without deduction or depreciation. In addition, if
Tenant shall install or maintain one or more pressure vessels to serve Tenant's
operations on the Premises, Tenant shall, at Tenant's sole cost and expense,
obtain, maintain and keep in full force and effect appropriate boiler or other
insurance coverage therefore in an amount not less than One Million and No/100
Dollars ($1,000,000.00) (it being understood and agreed, however, that the
foregoing shall not be deemed a consent by Landlord to the installation and/or
maintenance of any such pressure vessels in the Premises, which installation
and/or maintenance shall at all times be subject to the prior written consent of
Landlord). All insurance policies required pursuant to this Paragraph 8.03 shall
be written on a so-called "all risk" form and shall be carried in sufficient
amount so as to avoid the imposition of any co-insurance penalty in the event of
a loss. Such insurance shall provide the broadest coverage then available,
including coverage for loss of profits or business income or reimbursement for
extra expense incurred as the result of damage or destruction to all or a part
of the Premises.
8.04 All insurance policies which Tenant shall be required to maintain
pursuant to this Section 8 shall, in addition to any of the foregoing: be
written by insurers which have an A.M. Best & Company rating of "A", Class "X",
or better and who are authorized to write such business in the State of Michigan
and are otherwise satisfactory to Landlord; be written as "occurrence" policy;
be written as primary policy coverage and not contributing with or in excess of
any coverage which Landlord or any ground or building lessor may carry; name
Landlord, Teachers Insurance and Annuity Association and its subsidiaries, the
Manager, and Landlord's mortgagee and ground or building lessor, if any, as
additional insureds; be endorsed to provide that they shall not be cancelled,
failed to be renewed, diminished or materially altered for any reason except on
thirty (30) days prior written notice to Landlord and the other additional
insureds; and provide coverage to Landlord, Landlord's property management
company, and Landlord's mortgagee whether or not the event or occurrence giving
rise to the claim is alleged to have been caused in whole or in part by the acts
or negligence of Landlord, Landlord's property management company, or Landlord's
mortgagee. At Landlord's option, either the original policies or certified
duplicate copies of the original policies will be delivered by Tenant to
Landlord at least ten (10) days prior to their effective date thereof, together
with receipts evidencing payment of the premiums therefor. Tenant will deliver
certificates of renewal for such policies to Landlord not less than thirty (30)
days prior to the expiration dates thereof. No such policy shall contain a
deductible or self insured retention greater than $5,000.00 per claim, nor shall
any such policy be the subject of an indemnification or other arrangement by
which any insured is obligated to repay any insurer with respect to loss
occurring on the Premises.
8.05 If Tenant fails to provide all or any of the insurance required by
this Section 8 or subsequently fails to maintain such insurance in accordance
with the requirements hereof, then after giving five (5) business days
written notice to Tenant, Landlord may (but will not be required to)
9
<PAGE>
procure or renew such insurance to protect its own interests only, and any
amounts paid by Landlord for such insurance will be additional rental due and
payable on or before the next Rent Day, together with late charges and interest
as provided in Section 5 hereof. Landlord and Tenant agree that no insurance
acquired by Landlord pursuant hereto shall cover any interest or liability of
Tenant and any procurement by Landlord of any such insurance or the payment of
any such premiums shall not be deemed to waive or release the default of Tenant
with respect thereto.
SECTION 9.
DAMAGE BY FIRE OR OTHER CASUALTY
9.01 It is understood and agreed that if, during the Term hereof, the
Project and/or the Premises shall be damaged or destroyed in whole or in part by
fire or other casualty, without the fault or neglect of Tenant, Tenant's
servants, employees, agents, visitors, invitees or licensees, which damage is
covered by insurance carried pursuant to Section 8 above, unless Landlord elects
to terminate this Lease as provided in Paragraph 9.02 below, Landlord shall
cause the Project and/or the Premises to be repaired and restored to good,
tenantable condition with reasonable dispatch at its expense; provided, however,
Landlord shall not be obligated to expend for such repair or restoration an
amount in excess of insurance proceeds made available to Landlord for such
purpose, if any. Landlord's obligation hereunder shall be limited to repairing
or restoring the Project and/or the Premises to substantially the same condition
that existed prior to such damage or destruction.
9.02 If (i) more than fifty (50%) percent of the floor area of the
Premises shall be damaged or destroyed, (ii) more than twenty-five (25%) percent
of the Project shall be damaged or destroyed, or (iii) any material damage or
destruction occurs to the Premises or the Project during the last twelve (12)
months of the Initial Term or Option Term, as the case may be, then Landlord may
elect to either terminate this Lease or repair and rebuild the Premises. In
order to terminate this lease pursuant to this Paragraph, Landlord must give
written notice to Tenant of its election to so terminate, such notice to be
given within ninety (90) days after the occurrence of damage or destruction
fitting the above description, and thereupon the term of this Lease shall expire
by lapse of time ten (10) days after such notice is given and Tenant shall
vacate the Premises and surrender the same to Landlord, without prejudice,
however, to Landlord's rights and remedies against Tenant under the Lease
provisions in effect prior to such termination, and any rent owing shall be paid
up to such date and any payments of rent made by Tenant which were on account of
any period subsequent to such date shall be returned to Tenant. Tenant
acknowledges that Landlord will not carry insurance on Tenant's furniture and/or
furnishings or any fixtures or equipment, improvements, or appurtenances
removable by Tenant and agrees that Landlord will not be obligated to repair any
damage thereto or replace the same.
9.03 Tenant shall give immediate notice to Landlord in case of fire or
accident at the Premises. If Landlord repairs or restores the Premises as
provided in Paragraph 9.01 above, Tenant shall promptly repair or replace its
trade fixtures, furnishings, equipment, personal property and leasehold
improvements in a manner and to a condition equal to that existing prior to the
occurrence of such damage or destruction.
9.04 If the casualty, or the repairing or rebuilding of the Premises
pursuant to Paragraphs 9.01 and 9.02 above shall render the Premises
untenantable, in whole or in part, a proportionate abatement of the rent due
hereunder shall be allowed from the date when the damage occurred until the date
Landlord completes the repairs on the Premises or, in the event Landlord elects
to terminate this Lease, until the date of termination. Such abatement shall be
computed on the basis of the ratio of the floor area of the Premises rendered
untenantable to the entire floor area of the Premises.
9.05 Tenant shall not entrust any property to any employee, contractor,
licensee, or invitee of Landlord. Any person to whom any property is entrusted
by or on behalf of Tenant in violation of foregoing prohibition shall be deemed
to be acting as Tenant's agent with respect to such property and neither
Landlord nor its agents shall be liable for any damage to property of Tenant or
of others entrusted to employees of the Project, nor shall Landlord or its
agents be liable for any such damage caused by other tenants or persons in, upon
or about the Project or caused by operations or construction of any private,
public or quasi-public work.
9.06 Within fifteen (15) days of any damage or destruction to the
Premises described in Section 9.01, Tenant shall provide written notice to
Landlord requesting an estimate of the time required to substantially repair or
restore the Premises. If Tenant fails to request said estimate by providing
written notice to Landlord within such time period, Tenant's right to terminate
this Lease under this paragraph shall be deemed waived. Within a reasonable time
of receipt of Tenant's notice, Landlord shall provide a written notice to Tenant
(the "Landlord Casualty Repair Estimate Notice") indicating the scheduled
completion date to repair or restore the Premises "ready for occupancy" as
defined in Section 2.04 to substantially the same condition it existed
immediately prior to the damage or destruction. If the scheduled completion date
in the Landlord Casualty Repair Estimate Notice is more than two-hundred
10
<PAGE>
seventy (270) days after the date of the damage or destruction (the "Restoration
Period"), then Tenant may elect to terminate this Lease. In order to terminate
this Lease pursuant to this paragraph, Tenant must give written notice to
Landlord of its election to so terminate, such notice (the "Tenant Casualty
Termination Notice") shall be given within fifteen (15) days of the date the
Landlord Casualty Repair Estimate Notice and thereupon the Term of this Lease
shall expire by lapse of time thirty (30) days after Tenant Casualty Termination
Notice is given and Tenant shall vacate the Premises and surrender the same to
Landlord, without prejudice, however, to Landlord's rights and remedies against
Tenant under the Lease provisions in effect prior to such termination, and any
rent owing shall be paid up to such date and any payments of rent made by Tenant
which were on account of any period subsequent to such date shall be returned to
Tenant.
SECTION 10.
REPAIRS, RENOVATIONS AND ALTERATIONS
10.01 Tenant shall, at Tenant's sole expense, keep the interior of the
Premises and the fixtures therein in good condition, reasonable wear and tear
excepted, and will also repair all damage or injury to the Premises and fixtures
resulting from the carelessness, omission, neglect or other action or inaction
of Tenant, its servants, employees, agents, visitors, invitees or licensees.
Such damage shall be promptly repaired or damaged items replaced by Tenant, at
its sole expense, to the satisfaction of Landlord. If Tenant fails to make such
repairs or replacements, Landlord may do so and the cost thereof shall become
collectible as additional rent hereunder and shall be paid by Tenant within ten
(10) days after presentation of statement therefor. Landlord shall maintain, and
shall make all necessary repairs and replacements to, the Building, the heating,
air conditioning and electrical systems located therein, and the Common Areas,
provided that at Landlord's option, (i) Tenant shall make all repairs and
replacements arising from its act, neglect or default and that of its agents,
servants, employees, invitees and licensees, or (ii) Landlord may make such
repairs and replacements and the costs thereof shall become collectable as
additional rent hereunder and shall be paid by Tenant within five (5) days after
presentation of a statement therefore. Tenant shall keep and maintain the
Premises in a clean, sanitary and safe condition, and shall keep and maintain
the interior of the Premises in full compliance with the laws of the United
States and State of Michigan, all directions, rules and regulations of any
health officer, fire marshal, building inspector, or other proper official of
any governmental agency having jurisdiction over the Premises, and the
requirements of Landlord's mortgagee, all at Tenant's full cost and expense, and
Tenant shall comply with all requirements of law, ordinance and regulation
affecting the Premises. Tenant shall make all non-structural repairs to the
Premises as and when needed to preserve them in good order and condition. All
the aforesaid repairs shall be of quality or class equal to the original
construction. Tenant shall give Landlord prompt written notice of any defective
condition in any plumbing, heating system or electrical lines located in,
servicing or passing through the Premises and following such notice, Landlord
shall remedy the condition with due diligence but at the expense of Tenant if
repairs are necessitated by damage or injury attributable to Tenant, Tenant's
servants, agents, employees, invitees or licensees. There shall be no allowance
to Tenant for diminutions of rental value and no liability on the part of
Landlord by reason of inconvenience, annoyance or injury to business arising
from Landlord, Tenant, or others making or failing to make any repairs,
alterations, additions, or improvements in or to any portion of the Building or
the Premises or in and to the fixtures, appurtenances or equipment thereof. The
provisions of this Section 10 with respect to the making of repairs shall not
apply in the case of fire or other casualty which are dealt with in Section 9
hereof.
10.02 Tenant shall not have the right to make any renovations,
alterations, additions or improvements to the Premises which impact or modify
the structural elements of the Project without first obtaining Landlord's prior
written consent, which consent may be granted or withheld in Landlord's sole and
absolute discretion. Tenant shall not have the right to make any renovations,
alterations, additions or improvements to the Premises which impact or modify on
the plumbing, electrical, mechanical or fire and safety systems of the Building
without obtaining Landlord's prior written consent, which consent shall not be
unreasonably withheld. All plans and specifications for such renovations,
alterations, additions or improvements shall be approved by Landlord prior to
commencement of any work. Landlord's approval of the plans, specifications and
working drawings for Tenant's alterations shall create no responsibility or
liability on the part of Landlord for their completeness, design sufficiency, or
compliance with laws, rules and regulations of governmental agencies or
authorities, including but not limited to the Americans with Disabilities Act,
as amended. All renovations, alterations, additions or improvements made by
Tenant upon the Premises, except for movable office furniture and movable trade
fixtures installed at the expense of Tenant, shall be and shall remain the
property of Landlord, and shall be surrendered with the Premises at the
termination of this Lease, without molestation or injury. In addition, Landlord
may designate by written notice to Tenant at the time of installation the
alterations, additions, improvements and fixtures made by or for Tenant, which
shall be removed by Tenant at the expiration or termination of the Lease and
Tenant shall promptly remove the same and repair any damage to the Premises
caused by such removal.
11
<PAGE>
10.03 Tenant agrees that all renovations, alterations, additions and
improvements made by it pursuant to Paragraph 10.02, notwithstanding Landlord's
approval thereof, shall be done in a good and workmanlike manner and in
conformity with all guidelines provided by Landlord and all laws, ordinances and
regulations of all public authorities having jurisdiction, that materials of
good quality shall be employed therein, that the structure of the Premises shall
not be impaired thereby, that the work shall be carried out and completed in an
orderly, clean and safe manner, and that, while the work is being performed,
Tenant shall maintain builder's risk insurance coverage with Landlord as a named
insured, which insurance coverage shall meet the criteria set forth in Section
8.
SECTION 11.
LIENS
11.01 Tenant will keep the Premises free of liens of any sort and will
hold Landlord harmless from any liens which may be placed on the Premises except
those attributable to debts incurred by Landlord. In the event a construction or
other lien shall be filed against the Building, the Premises or Tenant's
interest therein as a result of any work undertaken by Tenant or its employees,
agents, contractors or subcontractors, or as a result of any repairs or
alterations made by or any other act of Tenant or its employees, agents,
contractors or subcontractors, Tenant shall, within two (2) days after receiving
notice of such lien, discharge such lien either by payment of the indebtedness
due the lien claimant or by filing a bond (as provided by statute) as security
for the discharge of such lien. In the event Tenant shall fail to discharge such
lien, Landlord shall have the right to procure such discharge by filing such
bond, and Tenant shall pay the cost of such bond to Landlord as additional rent
upon the next Rent Day in accordance with Section 5 hereof.
SECTION 12.
EMINENT DOMAIN
12.01 If all of the Premises are condemned or taken in any manner
(including without limitation any conveyance in lieu thereof) for any public or
quasi-public use, the term of this Lease shall cease and terminate as of the
date title is vested in the condemning authority. If (i) more than fifty (50%)
percent of the floor area of the Premises shall be condemned or taken in any
manner, or (ii) more than twenty-five (25%) percent of the Building shall be
condemned or taken, or (iii) any material condemnation or taking occurs during
the last twelve (12) months of the Initial Term or Option Term, as the case may
be, or (iv) such a portion of the parking area on the Land is so condemned or
taken that the number of parking spaces remaining are less than the number
required by applicable zoning laws or other building code for the Building, then
Landlord may elect to terminate this Lease. In order to terminate this Lease
pursuant to this Paragraph, Landlord must give Tenant written notice of its
election to so terminate, such notice to be given not later than ninety (90)
days after the completion of such condemnation or taking, and thereupon the term
of this Lease shall expire on the date set forth in such notice, and Tenant
shall vacate the Premises and surrender the same to Landlord, without prejudice,
however, to Landlord's rights and remedies against Tenant under the Lease
provisions in effect prior to such termination, and any rent owing shall be paid
up to such date and any payments of rent made by Tenant which were on account of
any period subsequent to such date shall be returned to Tenant.
12.02 If this Lease is not terminated following such a condemnation or
taking, Landlord, as soon as reasonably practicable after such condemnation or
taking and the determination and payment of Landlord's award on account thereof,
shall expend as much as may be necessary of the net amount which is awarded to
Landlord and released by Landlord's mortgagee, if any, in restoring, to the
extent originally constructed by Landlord (consistent, however, with zoning laws
and building codes then in existence), so much of the Building as was originally
constructed by Landlord to an architectural unit as nearly like its condition
prior to such taking as shall be practicable; provided, however, Landlord shall
not be obligated to expend for such restoration an amount in excess of
condemnation proceeds made available to Landlord, if any. Landlord's obligation
hereunder shall be limited to restoring the Building and/or the Premises to
substantially the same condition that existed prior to such condemnation or
taking.
12.03 If this Lease is not terminated pursuant to Paragraph 12.01, the
Base Rent and other sums payable by Tenant hereunder, as adjusted as provided
herein, shall be reduced in proportion to the reduction in area of the Premises
by reason of the condemnation or taking. If this Lease is terminated pursuant to
Paragraph 12.01, the minimum net rental and other charges which are the
obligation of Tenant hereunder shall be apportioned and prorated accordingly as
of the date of termination.
12.04 The whole of any award or compensation for any portion of the
Premises taken, condemned or conveyed in lieu of taking or condemnation,
including the value of Tenant's leasehold interest under the Lease, shall be
solely the property of and payable to Landlord. Nothing herein contained shall
be deemed to preclude Tenant from seeking, at its own cost and expense, an award
from the condemning authority for loss of its business, the value of any trade
fixtures or other personal property
12
<PAGE>
of Tenant in the Premises or moving expenses, provided that the award for such
claim or claims shall not be in diminution of the award made to Landlord.
SECTION 13.
ASSIGNMENT OR SUBLETTING
13.01 Tenant agrees not to assign or in any manner transfer this Lease
or any interest in this Lease without the prior written consent of Landlord,
which consent shall not be unreasonably withheld or delayed, and not to sublet
the Premises or any part of the Premises or to allow anyone to use or to come
in, through or under the Premises without Landlord's consent, which consent
shall not be unreasonably withheld or delayed. Any attempted subletting or
assignment without Landlord's consent shall be voidable in Landlord's sole
discretion and, at Landlord's option, shall grant Landlord the right to
terminate this Lease or to exercise any of the other rights or remedies it may
have hereunder. If consented to, no assignment or subletting shall be binding
upon Landlord unless the sublessee or assignee shall deliver to Landlord an
instrument (in recordable form, if Landlord so requests) containing an agreement
of assumption of all of Tenant's obligations under this Lease. In no event may
Tenant assign, sublet or otherwise transfer this Lease or any interest in this
Lease at any time while an Event of Default exists hereunder. Landlord may, in
its sole discretion, refuse to give its consent to any proposed subletting or
assignment or exercise its other rights hereunder for any reason, including, but
not limited to, the financial condition, creditworthiness or business reputation
of the proposed sublessee or assignee, the prevailing market or quoted rental
rates for space in the Building or other comparable buildings, and the proposed
use of the Premises by, or business of, the proposed sublessee or assignee. One
consent by Landlord to a subletting or assignment will not be deemed a consent
to any subsequent assignment, subletting, occupation or use by any other person.
Neither the consent to any assignment or subletting nor the acceptance of rent
from an assignee, subtenant or occupant will constitute a release of Tenant from
the further performance of the obligations of Tenant contained in this Lease. A
dissolution, merger, consolidation, or other reorganization of Tenant and the
issuance or transfer of twenty (20%) percent or more of the voting capital of
Tenant to persons other than shareholders as of the beginning of such period
within any twelve (12) month period, shall each be deemed to be an assignment of
this Lease, and as such, prohibited without Landlord's prior written consent.
Notwithstanding anything in this paragraph to the contrary, Landlord shall allow
the occupancy of the Premises by Tenant's parent company or a subsidiary or an
affiliate which is wholly owned by Tenant (the "Related Entity"), or the
assignment of this Lease or the subletting of all or a portion of the Premises
to a Related Entity provided that: (i) Tenant shall give written notice to
Landlord at least sixty (60) days prior to said proposed occupancy, assignment
or subletting setting forth the terms thereof together with such financial and
other information Landlord may request; and (ii) any such occupancy, assignment
or subletting shall not constitute a release of Tenant from the further
performance of the obligations of Tenant contained in this Lease; and (iii) any
such occupancy, assignment or subletting shall be subject to Sections 13.03 and
13.04.
13.02 In the event Tenant desires to sublet all or a portion of the
Premises or assign this Lease, Tenant shall give notice to Landlord setting
forth the terms of the proposed subletting or assignment together with such
financial and other information Landlord may reasonably request. Landlord shall
have the right, exercisable by written notice to Tenant within sixty (60) days
after receipt of Tenant's notice, (i) to consent or refuse to consent thereto in
accordance with Paragraph 13.01 above, or (ii) to terminate this Lease which
termination may, in Landlord's sole discretion, be conditioned upon Landlord and
the proposed subtenant/assignee entering into a new Lease. However, in the event
Landlord desires to elect to terminate this Lease, it shall first notify Tenant
of its desire whereupon Tenant may withdraw the request within ten (10) days
after Landlord's notice by the delivery of written withdrawal thereof to
Landlord whereupon Landlord shall withdraw its recapture option and Tenant shall
remain fully obligated under this Lease.
13.03 Upon the occurrence of an Event of Default, as defined under
Section 18, if all or any part of the Premises are then sublet or assigned,
Landlord, in addition to any other remedies provided by this Lease or by law,
may, at its option, collect directly from the sublessee or assignee all rent
becoming due to Landlord by reason of the subletting or assignment. Any
collection by Landlord from the sublessee or assignee shall not be construed to
constitute a waiver or release of Tenant from the further performance of its
obligations under this Lease or the making of a new Lease with such sublessee or
assignee.
13.04 In the event Tenant shall sublet all or a portion of the Premises
or assign this Lease, all of the sums of money or other economic consideration
received by Tenant or its affiliates, directly or indirectly, as a result of
such subletting or assignment, whether denominated as rent or otherwise, which
exceed in the aggregate the total sums which Tenant is obligated to pay Landlord
under this Lease (prorated to reflect obligations allocable to that portion of
the Premises subject to such sublease) shall be payable to Landlord as
additional rent under this Lease without effecting or reducing any other
obligation of Tenant hereunder.
13
<PAGE>
SECTION 14.
INSPECTION OF PREMISES
14.01 Tenant agrees to permit Landlord to enter the Premises for the
purpose of inspecting the same and to show same to prospective purchasers,
tenants or mortgagees of the Project, and to make such repairs, alterations,
improvements or additions as Landlord may deem necessary or desirable, and
Landlord shall be allowed to take all material into and upon the Premises that
may be required therefor without the same constituting an eviction of Tenant in
whole or in part and the rent reserved shall in no way abate while said repairs,
alterations, improvements, or additions are being made, by reason of loss or
interruption of business of Tenant, or otherwise. Landlord will give Tenant
reasonable notice prior to an entry by Landlord pursuant to this Section 14.01,
except in the case of emergencies in which event no notice need be given.
Landlord shall use reasonable efforts not to materially disrupt or interfere
with the conduct of Tenant's business during such entry and Tenant may accompany
Landlord while in the Premises.
SECTION 15.
FIXTURES AND EQUIPMENT
15.01 All fixtures and equipment paid for by Landlord and all fixtures
and equipment which may be paid for and placed on the Premises by Tenant from
time to time but which are so incorporated and affixed to Premises that their
removal would involve damage or structural change to Premises will be and remain
the property of Landlord.
15.02 All tenant furnishings, office equipment and tenant fixtures
(other than those specified in Sections 10.02 and 15.01), which are paid for and
placed on the Premises by Tenant from time to time (other than those which are
replacements for fixtures originally paid for by Landlord) will remain the
property of Tenant.
SECTION 16.
PARKING AREAS
16.01 Tenant and its agents, employees, customers, licensees and
invitees shall have the non-exclusive right to use in common with Landlord and
all other tenants and occupants of the Building and their respective agents,
employees, customers, licensees and invitees, the Common Area parking and
loading dock facilities, if any, on the Land, and all driveways, entrances and
exits located within the Project necessary to provide a means of ingress and
egress to and from the Premises. Such use of parking facilities shall be subject
to, and consistent with, the Rules and Regulations of the Project (as set forth
in Exhibit B), together with such reasonable modifications and additions as may
be made thereto during the term of this Lease. Landlord shall designate the
number of parking spaces set forth in Paragraph 1.01(i) in the parking lot of
the Project for the exclusive use of Tenant (the "Tenant's Designated Parking
Spaces"). Tenant shall pay Landlord, as additional rent on each Rent Day, an
amount set forth in Section 1.01(i). Such sums may be increased by Landlord from
time to time by the delivery of thirty (30) days prior written notice to Tenant.
Within thirty (30) days of receipt of such notification, Tenant may: (i) accept
such increase; or (ii) reject such increase for all or any of its exclusive
spaces, in which event Tenant's exclusive parking rights for such spaces shall
terminate. If Tenant accepts such increase or fails to reject such increase
within the thirty (30) day period, then commencing with the next Rent Day
following Landlord's notice, the amount of additional rent payable hereunder
shall be increased accordingly. Notwithstanding anything contained herein to the
contrary, Landlord shall have the right to relocate Tenant's Designated Parking
Spaces within the parking lot of the Project, and Landlord shall have the right
to designate other parking spaces in the parking lot for the exclusive use of
others. Tenant agrees to be bound by parking regulations in effect at the
Project, together with reasonable modifications or additions as may be necessary
during the term of this Lease, as more fully described in Exhibit "B", attached
hereto and made part hereof. Landlord shall use reasonable efforts to enforce
said rules and regulations against other tenants if the violation of such rules
and regulations interferes with the operation of Tenant's business in the
Premises.
SECTION 17.
NOTICE OR DEMANDS
17.01 All bills, notices, requests, statements, communications, or
demands (collectively, "notices or demands") to or upon Landlord or Tenant
desired or required to be given under any of the provisions hereof must be in
writing. Any such notices or demands from Landlord to Tenant will be deemed to
have been duly and sufficiently given if a copy thereof has been personally
delivered, mailed
14
<PAGE>
by United States certified mail, return receipt requested, postage prepaid, or
sent via overnight courier service to Tenant at the address of the Premises or
at such other address as Tenant may have last furnished in writing to Landlord
for such purpose. Any such notices or demands from Tenant to Landlord will be
deemed to have been duly and sufficiently given if delivered to Landlord in the
same manner as provided above at the address set forth at the heading of this
Lease or at the address last furnished by written notice from Landlord to
Tenant. The effective date and the delivery date of such notice or demand will
be deemed to be the time when it is personally delivered, three (3) days after
it is mailed or the day after it is sent via overnight courier as herein
provided.
SECTION 18.
BREACH; INSOLVENCY; RE-ENTRY
18.01 Each of the following shall constitute an Event of Default
under this Lease: (i) Tenant's failure to pay rent or any other sum payable
hereunder for more than five (5) business days after written notice of such
failure has been delivered to Tenant (but if one notice has been given in any
twelve (12) month period, no further notice shall be required during such
twelve (12) month period); (ii) Tenant's failure to perform any of the
non-monetary terms, conditions or covenants of this Lease to be observed or
performed by Tenant for more than seven (7) business days after written
notice of such failure shall have been delivered to Tenant except in
connection with a breach which cannot be remedied or cured within said seven
(7) business day period, in which event the time of Tenant within which to
cure such breach shall be extended for such time as shall be necessary to
cure the same, but only if Tenant, within such seven (7) business day period,
shall have commenced and diligently proceeded to remedy or cure such breach;
(iii) if Tenant is named as the debtor in any bankruptcy proceeding, or
similar debtor proceeding, and any such proceeding, if involuntary, is not
dismissed or set aside within sixty (60) days from the date thereof; (iv) if
Tenant makes an assignment for the benefit of creditors or petitions for or
enters into an arrangement with creditors or if a receiver of any property of
Tenant in or upon the Premises is appointed in any action, suit or proceeding
by or against Tenant, or if Tenant shall admit to any creditor or to Landlord
that it is insolvent, or if the interest of Tenant in the Premises shall be
sold under execution or other legal process; or (v) if Tenant shall suffer
this Lease to be taken under any writ of execution. Upon the occurrence of
any Event of Default, Landlord, in addition to any other rights and remedies
it may have hereunder or by law, shall have the immediate right of re-entry,
and may remove all persons and property from the Premises and it shall have
the right to abandon or otherwise dispose of such property in any way it may
deem fit which is not in contravention of applicable law. In addition,
Landlord shall have the right, but not the obligation, to store all or some
of the property which may have been removed in a public warehouse or
elsewhere at the cost of, and for the account of, Tenant, all without service
of notice or resort to legal process and all without being deemed guilty of
trespass or becoming liable for any loss or damage which may be occasioned
thereby.
18.02 In the event Landlord shall elect to re-enter the Premises in
accordance with Paragraph 18.01, or should Landlord take possession of Premises
pursuant to legal proceedings or pursuant to any notice provided by law,
Landlord may either terminate this Lease or may from time to time without
terminating this Lease, make such alterations and repairs as Landlord may deem
necessary in order to relet the Premises, and relet the Premises or any part
thereof for any such term or terms (which may be for a term extended beyond the
term of this Lease) and at such rental or rentals, and upon such other terms and
conditions as Landlord may deem advisable.
18.03 Upon the reletting of the Premises in accordance with Paragraph
18.02, all rentals received by Landlord from such reletting shall be applied in
the following order of priority: (a) to the payment of any additional rent
payable as provided in Section 5 hereof, including interest and late charges;
(b) to the payment of any other indebtedness other than rent due hereunder from
Tenant to Landlord; (c) to the payment of the actual costs and expenses of
obtaining possession, restoring and repairing the Premises and the actual costs
and expenses of reletting, including brokerage and attorneys' fees; and (d) to
the payment of any rent and other sums due and unpaid under this Lease. The
remainder, if any, shall be held by Landlord and applied in payment of future
rent as the same may become due and payable hereunder. If the rental received
from such reletting during any month is less than that to be paid during that
month by Tenant hereunder, Tenant shall pay any such deficiency to Landlord
monthly. No such re-entry or taking possession of the Premises or any part
thereof by Landlord shall be construed as an election on its part to terminate
this Lease unless a written notice of such intention is given to Tenant or
unless the termination thereof is decreed by a court of competent jurisdiction.
18.04 Notwithstanding any reletting of the Premises without termination
in accordance with Paragraph 18.02, Landlord may at any time after the
occurrence of any Event of Default, terminate this Lease and, in addition to any
other remedies Landlord may have, Landlord may recover from Tenant all damages
it may incur by reason of Tenant's breach, including, without limitation, the
reasonable cost of recovering and reletting the Premises and reasonable
attorneys' fees incidental thereto and the worth at
15
<PAGE>
the time of the termination of the amount of rent and other charges payable
hereunder for the remainder of the Term, all of which amounts shall be
immediately due and payable by Tenant to Landlord.
18.05 In case suit shall be brought or an attorney otherwise consulted,
for recovery of possession of the leased premises, for the recovery of rent or
any other amount due under the provisions of this Lease, or because of the
breach of any other covenant herein contained on the part of Tenant to be kept
and performed, or any other action against Tenant by Landlord, or because of any
claimed breach of this Lease by Landlord or any other action against Landlord by
Tenant, (and Landlord shall be the prevailing party), Tenant shall pay to
Landlord all expenses incurred therefor, including a reasonable attorneys' fee.
In addition, Landlord and Tenant hereby waive trial by jury in any action,
proceeding or counterclaim brought by Landlord or Tenant against the other on
any matter whatsoever arising out of or in any way connected with this Lease,
the relationship of Landlord to Tenant, the use or occupancy of the Premises by
Tenant or any person claiming through or under Tenant, any claim of injury or
damage, and any emergency or other statutory remedies; provided, however, the
foregoing waiver shall not apply to any action for personal injury or property
damage.
SECTION 19.
SURRENDER OF PREMISES ON TERMINATION
19.01 At the expiration (or earlier termination) of the Term hereof,
Tenant will surrender the Premises broom clean and in as good condition and
repair as they were at the time Tenant took possession, reasonable wear and tear
and damage by fire or other casualty not caused by Tenant, its agents or
employees excepted, and promptly upon surrender will deliver all keys and
building security cards for the Premises to Landlord at the place then fixed for
the payment of rent. At the expiration of the Lease term, Tenant will, at its
own cost and expense, repair or pay the cost of restoration with respect to any
damage to the Premises arising from the removal of any trade fixtures or similar
items. Tenant shall have no rights of removal as to property affixed or
otherwise placed on or in the Premises by or at the expense of Landlord, its
predecessors, successors or assigns. All costs and expenses incurred by Landlord
in connection with repairing or restoring the Premises to the condition called
for herein, together with the costs, if any, of removing any property of Tenant
together with any property designated by Landlord pursuant to Section 10.02,
left on the Premises, shall be paid by Tenant on demand. Tenant shall remove all
property of Tenant and make all repairs necessitated thereby at its own cost, as
directed by Landlord. Tenant's obligation to observe or perform this covenant
shall survive the expiration or other termination of the Term of this Lease.
SECTION 20.
PERFORMANCE BY LANDLORD OF THE COVENANTS OF TENANT
20.01 If Tenant fails to pay any sum of money, other than Base Rent,
required to be paid hereunder or fails to perform any act on its part to be
performed hereunder, including, but not limited to, the performance of all
covenants pertaining to the condition and repair of the Premises pursuant to
Section 10 above, and if such failure shall not otherwise be cured within the
time, if any, provided herein, then upon two (2) days notice Landlord may (but
shall not be required to), without waiving or releasing Tenant from any of
Tenant's obligations, make any such payment or perform any such other act. All
sums so paid or incurred by Landlord and all incidental costs, including, but
not limited to, the cost of repair, maintenance or restoration of the Premises,
shall be deemed additional rental and, together with interest thereon computed
at the rate set forth in Section 5 hereof from the date of payment by Landlord
until the date of repayment by Tenant to Landlord, shall be payable to Landlord
on demand. On default in such payment, Landlord shall have the same remedies as
on default in payment of rent. The rights and remedies granted to Landlord under
this Section 20 shall be in addition to, and not in lieu of, all other remedies,
if any, available to Landlord under this Lease or otherwise, and nothing
contained herein shall be construed to limit such other remedies of Landlord
with respect to any matters covered herein.
SECTION 21.
SUBORDINATION; ESTOPPEL CERTIFICATES
21.01 This Lease is subject and subordinate to all ground leases,
underlying leases, and mortgages, if any, now or hereafter made, which may now
or hereafter affect the Project and to all
16
<PAGE>
renewals, modifications, consolidations, replacements and extensions of any such
ground leases, underlying leases and mortgages. This clause shall be
self-operative and no further instrument of subordination shall be necessary.
Notwithstanding the foregoing, Landlord reserves the right to declare this Lease
prior to the lien of any ground lease, underlying lease, or mortgage now or
hereinafter placed upon the real property of which the Premises are a part by
recording a written notice of such priority with the register of deeds. Tenant
covenants and agrees to execute and deliver, within ten (10) days after
requested by Landlord, such further instrument or instruments subordinating this
Lease (or declaring the Lease prior and superior) to any lease or proposed lease
or to the lien of any such mortgage or mortgages as shall reasonably be desired
by Landlord, any lessor or proposed lessor, and any mortgagees or proposed
mortgagees.
21.02 In the event any proceedings are brought for foreclosure of, or
in the event of the conveyance by deed in lieu of foreclosure of, or in the
event of the exercise of the power of sale under, any mortgage made by Landlord
covering the Premises, Tenant hereby attorns to the new owner, and covenants and
agrees to execute any instrument in writing reasonably satisfactory to the new
owner, whereby Tenant attorns to such successor in interest and recognizes such
successor as Landlord under this Lease.
21.03 Tenant, within ten (10) business days after request (at any time
or times) by Landlord, will execute and deliver to Landlord an estoppel
certificate, in form reasonably acceptable to Landlord, certifying: (i) to the
Commencement Date and expiration date of the Term; (ii) that this Lease is
unmodified and in full force and effect, or is in full force and effect as
modified, stating the modifications; (iii) that Tenant does not claim that
Landlord is in default in any way, or listing any such claimed defaults and that
Tenant does not claim any rights of setoff, or listing such rights of setoff;
(iv) to the amount of monthly rent and other sums due hereunder as of the date
of the certificate, the date to which the rent has been paid in advance, and the
amount of any security deposit or prepaid rent; (v) that Tenant agrees to
provide any mortgagee of Landlord with notice of any default by Landlord
hereunder and give such mortgagee the opportunity to cure such default within
sixty (60) days of such mortgagee's receipt of notice of such default; and (vi)
such other matters as may be reasonably requested by Landlord. Any such
certificate may be relied upon by any prospective purchaser, mortgagee or lessor
of the Premises or any part thereof.
SECTION 22.
QUIET ENJOYMENT
22.01 Landlord agrees that at all times when no Event of Default exists
under this Lease, Tenant's quiet and peaceable enjoyment of the Premises, in
accordance with and subject to the terms of this Lease, will not be disturbed or
interfered with by Landlord or any person claiming by, through, or under
Landlord.
SECTION 23.
HOLDING OVER
23.01 If Tenant remains in possession of the Premises after the
expiration of this Lease without executing a new lease, Landlord shall have the
right to deem Tenant to be occupying the Premises as a tenant from month to
month and the Base Rent for each month will be two hundred percent (200%) of the
greater of: (a) the regular monthly installment of Base Rent payable for the
last month of the Term of this Lease; or (b) the then prevailing market rates of
rent for the Project determined by Landlord in its sole and absolute discretion.
This provision shall not preclude Landlord from terminating the lease or
recovering any and all damages Landlord may incur as a result of Tenant's
failure to timely deliver possession of the Premises to Landlord or from
exercising any other right or remedy it may have hereunder.
SECTION 24.
REMEDIES NOT EXCLUSIVE; WAIVER
24.01 Each and every of the rights, remedies and benefits of Landlord
provided by this Lease are cumulative, and are not exclusive of any other of
said rights, remedies and benefits, or of any other rights, remedies and
benefits allowed by law.
24.02 The failure of Landlord to seek redress for violation of, or to
insist upon the strict performance of, any covenant or condition of this Lease
or of any of the rules or regulations set forth or hereafter adopted by
Landlord, shall not prevent a subsequent act which would have originally
constituted a violation from having all the force and effect of an original
violation. The receipt by Landlord of rent with knowledge of the breach of any
covenant of this Lease shall not be deemed a waiver of such breach and no
provision of this Lease shall be deemed to have been waived by Landlord unless
such waiver be in writing signed by Landlord. One or more waivers of any
covenant or condition by either party shall not be
17
<PAGE>
construed as a waiver of a further or subsequent breach of the same covenant or
condition, and the consent or approval by Landlord to or of any act by Tenant
requiring Landlord's consent or approval will not be deemed to waive or render
unnecessary Landlord's consent or approval to or of any subsequent similar act
by Tenant. No payment by Tenant or receipt by Landlord of a lesser amount than
the monthly rental herein stipulated shall be deemed to be other than on account
of the earliest stipulated rent, nor shall any endorsement or statement on any
check or any letter accompanying any check or payment as rent be deemed an
accord and satisfaction, and Landlord shall accept such check or payment without
prejudice to Landlord's right to recover the balance of such rent or pursue any
other remedy provided in this Lease.
SECTION 25.
WAIVER OF SUBROGATION
25.01 Anything to the contrary in this Lease notwithstanding to the
extent not prohibited by or violative of any policy of fire and extended
coverage or all-risk property insurance issued to Tenant, neither Landlord, nor
its officers, directors, employees, agents or invitees, shall be liable to
Tenant or to any insurance company (by way of subrogation or otherwise) insuring
Tenant for any loss or damage to any building, structure or other tangible
property, when such loss is caused by any of the perils which are or could be
insured against under this all-risk property policies required hereunder, or
losses under workers' compensation laws and benefits, even though such loss or
damage might have been occasioned by the negligence of Landlord, its agents or
employees. Tenant represents that its current insurance policies allow such
waiver and will immediately notify Landlord if such waiver becomes unavailable
or is not obtainable. In the absence of such notification, Tenant will be deemed
to have obtained such waiver of subrogation.
SECTION 26.
RIGHT TO SHOW PREMISES
26.01 Upon reasonable notice Landlord may show the Premises to
prospective tenants and brokers, and may display signs about the Project and
elsewhere advertising the availability of the Premises. Landlord shall use
reasonable efforts not to materially disrupt or interfere with the conduct of
Tenant's business during such entry and Tenant may accompany Landlord while in
the Premises.
SECTION 27.
INDEMNIFICATION
27.01 Tenant, its successors and assigns shall indemnify and hold
harmless Landlord and all superior lessors or superior mortgagees and its and
their respective partners, directors, officers, agents and employees from and
against any and all third-party claims arising from or in connection with: (i)
the conduct or management of the Premises or of any business therein, or any
work or thing whatsoever done, or any condition created (even if due to
Landlord's negligence or breach of this Lease, except Landlord gross negligence
and/or Landlord willful and malicious acts) in or about the Premises, during the
term of this Lease; (ii) any act, omission or negligence of Tenant or any of its
subtenants or licensees or its or their partners, directors, officers, agents,
employees, invitees or contractors; (iii) any accident, injury or damage
whatever (even if caused by Landlord's negligence except Landlord gross
negligence and/or Landlord willful and malicious acts) occurring in, at or upon
the Premises; and (iv) any breach or default by Tenant in the full and prompt
payment and performance of Tenant's obligations under this Lease; together with
all costs, expenses and liabilities incurred or in connection with each such
claim or action or proceeding brought thereon, including, without limitation,
all attorneys' fees and expenses. If any case any action or proceeding is
brought against Landlord or any superior lessor or superior mortgagee or its or
their partners, directors, officers, agents or employees and such claim is a
claim for which Tenant is obligated to indemnify Landlord pursuant to this
Paragraph 27, Tenant upon notice from Landlord or such superior lessor or
superior mortgagee, shall resist and defend such action or proceeding (by
counsel reasonably satisfactory to Landlord). The obligation of Tenant under
this Paragraph 27 shall survive termination of this Lease.
SECTION 28.
DEFINITION OF LANDLORD; LANDLORD'S LIABILITY
28.01 The term "Landlord" as used in this Lease so far as covenants,
agreements, stipulations or obligations on the part of Landlord are concerned is
limited to mean and include only the owner or
18
<PAGE>
owners of the Premises at the time in question, and in the event of any transfer
or transfers of the title to such fee Landlord herein named (and in case of any
subsequent transfers or conveyances the then grantor) will automatically be
freed and relieved from and after the date of such transfer or conveyance of all
personal liability for the performance of any covenants or obligations on the
part of Landlord contained in this Lease thereafter to be performed.
28.02 This Lease and the obligation of Tenant to pay rent hereunder and
perform all of the other covenants and agreements hereunder on the part of
Tenant to be performed shall in no way be affected, impaired or excused because
Landlord is unable to fulfill any of its obligations under this Lease or is
unable to supply or is delayed in supplying any service expressly or implied to
be supplied or is unable to make, or is delayed in making any repairs,
additions, alterations or decorations or is unable to supply or is delayed in
supplying any equipment or fixtures if Landlord is prevented or delayed from so
doing by reasons of shortages of materials, acts of God, governmental
restrictions, strike or labor troubles or any cause beyond Landlord's reasonable
control including, but not limited to, government preemption in connection with
a national emergency or by reason of any rule, order or regulation of any
department or subdivision thereof of any government agency or by reason of the
conditions of supply and demand which have been or are affected by war or other
emergency.
SECTION 29.
SECURITY DEPOSIT AND SECURITY INTEREST
29.01 Upon execution hereof, Tenant shall deliver to Landlord a
Letter of Credit in the amount set forth in Section 1.01(j), above, and Exhibit
D, which Landlord is to retain as security for the faithful performance of all
the covenants, conditions and agreements of this Lease, but in no event shall
Landlord be obligated to apply the same upon rents or other charges in arrears
or upon damages for Tenant's failure to perform the said covenants, conditions,
and agreements; Landlord may so apply the security at its option, and Landlord's
right to the possession of the Premises for nonpayment of rent or for any other
reason shall not in any event be affected by reason of the fact that Landlord
holds this security. The said sum, if not applied toward the payment of rent in
arrears or toward the payment of damages suffered by Landlord by reason of
Tenant's breach of the covenants, conditions and agreements of this Lease, is to
be returned, without interest thereon, to Tenant when this Lease is terminated,
and fully performed by Tenant, according to these terms, and in no event is the
said security to be returned until Tenant has vacated the Premises and delivered
possession to Landlord.
29.02 In the event that Landlord repossesses the Premises because of
Tenant's default or because of Tenant's failure to carry out the covenants,
conditions and agreements of this Lease, Landlord may apply the said security
upon all damages suffered to the date of said repossession and may retain the
said security to apply upon such damages as may be suffered or shall accrue
thereafter by reason of Tenant's default or breach. Landlord shall not be
obligated to keep the said security as a separate fund, but may mix the said
security with its own funds. In the event Landlord shall use any part of the
Security Deposit, Tenant shall, upon demand, deposit with Landlord the full
amount so used, in order that Landlord shall have the full Security Deposit on
hand at all times during the Term of this Lease. In the event of a sale or lease
of the Building and the transfer of the Security Deposit to the purchaser or
lessee, Landlord shall be released from all liability for the return of the
Security Deposit. Tenant shall have no legal power to assign or encumber the
Security Deposit herein described.
29.03 To secure the faithful performance of all covenants, conditions
and agreements of this Lease to be performed and observed by Tenant and to
secure the payment of all rent and other sums which may be due Landlord under
this Lease, Tenant hereby grants Landlord a security interest in all property,
equipment, fixtures, chattels, inventory and general intangibles and the
proceeds thereof, whether now owned or hereafter acquired, which may at any time
be placed in or upon the Leased Premises or used or useable in connection with
Tenant's business (collectively the "Collateral"). Landlord agrees to execute
and deliver to Tenant after Tenant has executed such instrument subordinating
this Lease to the lien of the security interest in the form attached hereto as
Exhibit F. Upon the occurrence of an Event of Default, Landlord may exercise any
of its rights and remedies provided by the Uniform Commercial Code. The proceeds
of any such sale, after payment of Landlord's expenses, shall be applied to the
payment of Tenant's obligations hereunder and satisfaction of such Event of
Default. Enforcement of this security interest shall be in addition to and shall
not waive, alter, limit or affect in any manner any other remedies available to
Landlord. Tenant agrees that upon Landlord's request it shall execute and
deliver all such financing statements as may be necessary to perfect this
security interest. Provided no Event of Default exists under the terms of this
Lease, then within thirty (30) days after the expiration of the Term, Landlord
shall deliver all such termination statements as Tenant may reasonably request,
whereupon the security interest granted by this Section 29 shall terminate.
SECTION 30.
RULES AND REGULATIONS
19
<PAGE>
30.01 Tenant shall faithfully abide by and observe the rules and
regulations for the Building, a copy of which is attached hereto as Exhibit B
and made a part hereof, and, after notice thereof, all reasonable additions
thereto and modifications thereof of uniform applicability from time to time
promulgated in writing by Landlord. Landlord shall use reasonable efforts to
enforce said rules and regulations against other tenants if the violation of
such rules and regulations interferes with the operation of Tenant's business in
the Premises.
SECTION 31.
SIGNS AND ADVERTISING
31.01 No signs, lighting, lettering, pictures, notices, advertisements,
shades, awnings or decorations will be displayed, used or installed by Tenant
except as approved in writing by Landlord. All such materials displayed in and
about the Premises will be such only as to advertise the business carried on
upon the Premises and Landlord will control the location, character and size
thereof. Tenant shall not cause or permit to be used any advertising materials
or methods which are reasonably objectionable to Landlord or to other tenants of
the Building, including without limiting the generality of the foregoing:
loudspeakers, mechanical or moving display devices, unusually bright or flashing
lights and similar devices the effect of which may be seen or heard from outside
the Premises. Tenant shall not solicit business, sell or display merchandise, or
distribute hand bills or other advertising matter in the parking area or other
Common Areas. Tenant shall receive at Landlord's expense, Building Standard
signage in the common corridor and elevator lobby.
SECTION 32.
GENERAL
32.01 If, by reason of the occurrence of unavoidable delays due to acts
of God, governmental restrictions, strikes, labor disturbances, shortages of
materials or supplies or for any other cause or event beyond Landlord's
reasonable control, Landlord is unable to furnish or is delayed in furnishing
any service required by Landlord under the provisions of this Lease, or Landlord
is unable to perform or make or is delayed in performing or making any
installations, decorations, repairs, alterations, additions, or improvements,
required to be performed or made under this Lease, or is unable to fulfill or is
delayed in fulfilling any of Landlord's other obligations under this Lease, no
such inability or delay shall constitute an actual or constructive eviction in
whole or in part, or, except as otherwise expressly provided herein, entitle
Tenant to any abatement or diminution of rental or other charges due hereunder
or otherwise relieve Tenant from any of its obligations under this Lease, or
impose any liability upon Landlord or its agents by reason of inconvenience or
annoyance to Tenant, or injury to or interruption of Tenant's business, or
otherwise.
32.02 This Lease is being entered into and executed in the State of
Michigan, and all questions with respect to the construction of this Agreement
and the rights and liabilities of the parties shall be determined in accordance
with the provisions of the laws of the State of Michigan.
32.03 Many references in this Lease to persons, entities and items have
been generalized for ease of reading. Therefore, references to a single person,
entity or item will also mean more than one person, entity or thing whenever
such usage is appropriate (for example, "Tenant" may include, if appropriate, a
group of persons acting as a single entity, or as tenants-in-common). Similarly,
pronouns of any gender should be considered interchangeable with pronouns of
other genders.
32.04 Section headings appearing in this Lease are for convenience
only. They do not define, limit or construe the contents of any paragraphs or
clauses contained herein.
32.05 Landlord reserves the right should it become necessary to comply
with required laws and regulations, or to assure the health, safety and welfare
of Tenant or other occupants of the building to relocate Tenant in other
comparable space in the Building upon not less than sixty (60) days prior
written notice to Tenant. Landlord shall pay the cost of building and moving
Tenant to new space. Landlord shall use reasonable efforts to have the move take
place on a weekend and to be substantially completed by 8:00 a.m. Monday. If
Tenant does not wish to accept such relocation, Tenant may object thereto by
written
20
<PAGE>
notice to Landlord within ten (10) days after the notice from Landlord.
In the event Tenant fails to object within such ten (10) day period, Tenant
shall be deemed to have accepted the relocation. In the event Tenant so objects,
Landlord may rescind the notice of intention to relocate Tenant or may reaffirm
said intention, in which event Tenant may terminate this Lease by written notice
to Landlord within five (5) days after the affirmation notice from Landlord. In
the event Tenant fails to notify Landlord of its termination within such five
(5) day period, it shall be deemed to have accepted the relocation. If Tenant
terminates this Lease pursuant this paragraph, Tenant must vacate the Premises
within thirty (30) days following Tenant's notice to Landlord of termination. As
to any relocation of Tenant to substitute space, such substitute space shall be
as suitable as the Premises for the conduct of Tenant's business, and such
substitute space and the Premises shall be concurrently available to Tenant as
necessary to provide for continuity in Tenant's business and to permit
relocation of Tenant's equipment and facilities with reasonable minimal
interruption in such business. The cost of relocation to be paid by Landlord
shall include the expense of the de-installation and installation of equipment,
facilities, and business communications facilities to such substitute space and
up to a six (6) month supply of stationary. All reimbursements to Tenant shall
be made within thirty (30) days of receipt of the invoice(s) therefor.
32.06 The covenants, conditions and agreements contained in this Lease
shall bind and inure to the benefit of Landlord and Tenant and their respective
heirs, distributees, successors, administrators and executors provided, however,
that no assignment by, from, through, or under Tenant in violation of any of the
provisions hereof shall vest in the assigns any right, title, or interest
whatsoever. All provisions of this Lease are and will be binding on the
successors and permitted assigns of Landlord and Tenant.
32.07 Time shall be and is of the essence in this Lease and with
respect to the performance of all obligations of Landlord and Tenant hereunder.
32.08 Any services which Landlord is required to furnish pursuant to
the provisions of this Lease may, at Landlord's option, be furnished from time
to time, in whole or in part, by employees of Landlord or by the managing agent
of the Project or by one or more third persons.
32.09 Landlord shall have the right at any time, and from time to time,
to unilaterally amend the provisions of this Lease if Landlord is advised by
counsel that all or any portion of the monies paid by Tenant to Landlord
hereunder are, or may be deemed to be, unrelated business income within the
meaning of the United States Internal Revenue Code or regulation issued
thereunder, and Tenant agrees that it will execute all documents or instruments
necessary to effect such amendment or amendments, provided that no such
amendment shall result in Tenant having to pay in the aggregate more money on
account of its occupancy of the Premises under the term of this Lease as so
amended and provided, further, that no such amendment or amendments shall result
in Tenant receiving under the provisions of this Lease less service than it is
entitled to receive, nor services of a lesser quality.
32.10 Neither Landlord nor Landlord's agents have made any
representations or promises with respect to the physical condition of the
Building, the Land or the Premises, or with respect to the rents, leases,
expenses of operation or any other matter or thing affecting or related to the
Premises except as expressly set forth herein; and no rights, easements or
licenses are acquired by Tenant by implication or otherwise except as expressly
set forth in the provisions of this Lease.
32.11 Annually and at any other time, Tenant shall promptly furnish
Landlord financial statements reflecting Tenant's and any Guarantor's current
financial condition. All such financial statements shall be in such form and
contain such detail as Landlord shall reasonably request.
32.12 In case any provision of this Lease or any agreement or
instrument executed in connection herewith shall be invalid, illegal or
unenforceable, such provision shall be enforced to the fullest extent permitted
by applicable law, and the validity, legality and enforceability of the
remaining provisions hereof and thereof shall not in any way be affected or
impaired thereby. This Lease shall not be construed more strictly against one
party than against the other, merely by virtue of the fact that it may have been
prepared by counsel for one of the parties, it being recognized that both
Landlord and Tenant have contributed substantially and materially to the
preparation of this Lease.
32.13 This Lease can be modified or amended only by a written agreement
signed by Landlord and Tenant. This Lease and the Exhibits attached hereto and
forming a part hereof set forth all of the covenants, agreements, stipulations,
promises, conditions and understandings between Landlord and Tenant concerning
the Premises, and there are no covenants, agreements, stipulations, promises,
conditions or understanding, either oral or written, between them other than set
forth herein or therein.
32.14 Tenant will not record this Lease or a memorandum hereof, and
will not otherwise disclose the terms of this Lease to anyone other than its
attorneys, accountants or employees who need to know of its contents in order to
perform their duties for Tenant. Any other disclosure will be an Event of
Default under the Lease. Tenant agrees that Landlord shall have the right to
publish a "tombstone" or other promotional description of this Lease.
21
<PAGE>
32.15 Except as disclosed in writing to Landlord, Tenant represents and
warrants to Landlord that there are no claims for brokerage commissions or
finder's fees in connection with this Lease as a result of the contracts,
contacts or actions of Tenant, and Tenant agrees to indemnify Landlord and hold
it harmless from all liabilities arising from any such claim arising from an
alleged agreement or act by Tenant (including, without limitation, the cost of
counsel fees in connection therewith); such agreement to survive the termination
of this Lease.
32.16 The matters set forth on Exhibit D, Special Provisions, if any,
are hereby accepted and agreed to between Landlord and Tenant and incorporated
herein by reference.
IN WITNESS WHEREOF Landlord and Tenant have executed this Lease as of
the date and year first above written.
TENANT: LANDLORD:
VASTERA, INC., a Delaware Corporation TEACHERS MICHIGAN PROPERTIES, INC., a
Delaware Corporation
BY: JV MICHIGAN TWO, INC., a Delaware
Corporation
BY: By:
--------------------------------- ---------------------------------
Printed: Printed:
---------------------------- ----------------------------
Dated: By: JV MICHIGAN THREE, INC., a
------------------------------- Delaware Corporation
By:
---------------------------------
Printed:
----------------------------
22
<PAGE>
EXHIBIT A
SPACE PLAN
Approved by Tenant:
TENANT:
VASTERA, INC., a Delaware Corporation
By:
-------------------------------------
Printed:
-------------------------------
Its:
-----------------------------------
23
<PAGE>
EXHIBIT B
RULES AND REGULATIONS OF THE PROJECT
Tenant agrees for itself, its employees, agents, clients, customers,
licensees, invitees and guests, to comply fully with the following rules and
regulations and with such reasonable modifications thereof and additions thereto
(to be uniformly applied and not inconsistent with the terms o the body of the
Lease) as Landlord may make for the Project following notice thereof to Tenant.
All rules and regulations set forth in this Exhibit B shall be in addition to,
and shall in no way limit, the provisions of the Lease.
1. The Common Areas of the Project shall not be used by Tenant for any
purpose other than those for which they are intended or designated.
2. Although Tenant shall have the right of access to the Premises 24
hours a day, 365 days a years, Landlord shall have the right to enact reasonable
security measures with respect to off-hours access to the Premises and Landlord
has the right to control access to the Project and refuse admittance to any
person or persons without satisfactory identification or a pass issued by Tenant
during hours reasonably determined by Landlord.
3. No person shall disturb other occupants of the Building by making
loud or disturbing noises.
4. Soliciting, peddling and canvassing is prohibited in the Project and
Tenant shall cooperate to prevent the same. No vending machine shall be operated
in the Building by any tenant without the prior written consent of Landlord.
5. All deliveries and removals of furniture, equipment or other bulky
items must take place after notification to Landlord, during such hours and in
such manner as Landlord shall reasonably determine. Tenant shall be responsible
for all damage or injury resulting from the delivery or removal of all articles
into or out of the Project or the Premises. No load shall be placed on the
floors or in elevators in excess of the limits which shall be established by
Landlord.
6. Tenant shall not use any equipment emitting noxious fumes or
offensive odors unless they are properly vented at Tenant's expense.
7. Nothing shall be attached to the interior or exterior of the
Building without the prior written consent of Landlord.
8. No sign or other representation shall be placed on the interior or
exterior of the Building without prior written consent of Landlord.
9. No hazardous articles, bicycles, vehicles or animals of any kind
(other than wheelchairs and seeing-eye dogs) shall be brought into or kept in or
about the Building without the prior consent of Landlord.
10. No marking, painting, drilling, boring, cutting or defacing of the
walls, floors or ceilings of the Building, other than that which is reasonably
necessary for the hanging of art work, diplomas and similar objects which do not
require any material alteration to any wall, floor or ceiling, shall be
permitted without the prior written consent of Landlord.
11. The electrical system and lighting fixtures in the Building shall
not be altered or disturbed in any manner without the prior written consent from
Landlord. Any alterations or additions must be performed by licensed personnel
authorized by Landlord.
12. The toilets and other plumbing fixtures shall not be used for any
purpose other than that for which they are designed. No sweepings, rubbish or
other similar materials or substances shall be deposited therein.
13. Smoking is prohibited in the elevator(s), hallways, corridors,
stairs, lobbies and other common areas of the Project unless clearly designated
to the contrary by Landlord.
14. Tenant shall not waste electricity, water or air-conditioning, and
shall cooperate fully with Landlord to assure the most effective operation of
the Building's heating and air-conditioning. Tenant shall not adjust any
controls other than room thermostats installed for Tenant's use. Tenant shall
not tie, wedge or otherwise fasten open any water faucet or outlet. Tenant shall
keep all corridor doors closed.
24
<PAGE>
15. Tenant assumes full responsibility for protecting the Premises from
theft, burglary, robbery and pilferage. Except during Tenant's normal business
hours, Tenant shall keep all doors to the Premises locked and other means of
entry to the Premises closed and secured.
16. Tenant or Tenant's employees shall not distribute literature,
flyers, handouts or pamphlets of any kind in any of the common areas of the
Project without the prior written consent of Landlord.
17. Tenant shall not sell or prepare any food or beverages in or from
the Premises without Landlord's prior written consent, except for coffee, tea,
soup and microwave foods prepared for consumption by Tenant, Tenant's servants,
employees, agents, clients, customers, licensees, invitees, visitors, and
contractors.
18. Tenant shall not permit the use of any apparatus for sound
production or transmission in such manner that the sound so transmitted or
produced shall be audible or vibrations therefrom shall be detectable beyond the
Premises.
19. Tenant shall keep all electrical and mechanical apparatus free of
vibration, noise and air waves which may be transmitted beyond the Premises.
20. No floor covering shall be affixed to any floor in the Premises by
means of glue or other adhesive without Landlord's prior written consent.
21. Tenant shall not use the name of the Building for any purpose other
than that of the business address of Tenant (which it may do, at its own risk,
in the event the name of the Building changes), and shall not use any picture or
likeness of the Building in any circulars, notices, advertisements or
correspondence.
22. Tenant shall not obstruct sidewalks, entrances, passages, courts,
corridors, vestibules, halls, elevators and stairways in or about the Building,
nor shall Tenant place objects against glass partitions, doors or windows which
would be unsightly from the Building's corridors, or from other areas of the
Building.
23. Tenant shall not make any room-to-room canvass to solicit business
from other tenants of the Building.
24. No additional locks or similar devices shall be attached to any
door and no locks shall be changed without Landlord's prior written consent.
Upon termination of this Lease or of Tenant's possession of the Premises, Tenant
shall surrender all keys for door locks and other locks in or about the Premises
and shall make known to Landlord the combination of all locks, safes, cabinets
and vaults which are not removed by Tenant.
25. Tenant shall not install or operate any machinery or mechanical
devices of a nature not directly related to Tenant's ordinary use of the
Premises without Landlord's prior written consent.
26. Tenant shall not employ any person to perform any cleaning,
repairing, janitorial, decorating, painting or other services or work in or
about the Premises, except with the approval of Landlord.
27. Tenant shall ascertain from Landlord the maximum amount of
electrical current which can safely be used in the Premises, taking into account
the capacity of the electric wiring in the Building and the Premises and the
needs of other tenants, and shall not use more than such safe capacity.
Landlord's consent to the installation of electric equipment shall not relieve
Tenant from the obligation not to use more electricity than such safe capacity.
28. Tenant shall not overload any floor or elevator and shall not
install any heavy objects, safes, business machines, files or other equipment
without having received Landlord's prior written consent as to size, maximum
weight, routing and locations thereof. Safes, furniture, equipment, machines and
other large or bulky articles shall be brought through the Building and into and
out of the Premises at such times and in such manner as Landlord shall direct
(including the designation of elevator) and at Tenant's sole risk and
responsibility. Prior to Tenant's removal of any such articles from the
Building, Tenant shall obtain written authorization therefore from Landlord.
29. Tenant shall not in any manner deface or damage the Building.
30. Tenant shall not bring into the Building or Premises inflammables
such as gasoline, kerosene, naphtha and benzine, or explosives or any other
articles of intrinsically dangerous nature.
25
<PAGE>
31. Movement into or out of the Building of furniture or office
equipment, or dispatch or receipt by Tenant of any merchandise or materials
other than hand-delivered packages, which requires the use of elevators or
stairways or movement through the Building entrances or lobby, shall be
restricted to the hours designated by Landlord. Tenant assumes all risk of
damage to any and all articles so moved, as well as injury to any person or
property in such movement, and hereby agrees to indemnify Landlord against any
loss resulting therefrom.
32. Landlord shall not be responsible for any lost or stolen property,
equipment, money or jewelry from the Premises or the public areas of the
Building regardless of whether such loss occurs when the Premises are locked.
33. The Premises shall not be used for housing, lodging, sleeping or
for any immoral or illegal purpose.
34. The work of the janitor or cleaning personnel shall not be hindered
by Tenant after 5:30 p.m. and the windows may be cleaned at any time. Tenant
shall provide adequate waste and rubbish receptacles to prevent unreasonable
cost to Landlord in discharging its obligations regarding cleaning services.
35. Tenant will refer all contractors or installation technicians
rendering any service for Tenant for supervision and approval of Landlord before
performance of any contractual services.
36. PARKING REGULATIONS:
(i) Cars WILL NOT park in the designated "Reserved"
spaces. There will be no parking in any area of the
Project other than those areas clearly marked and
defined for parking.
(ii) Parking will be on the basis of first-come,
first-served except for Designated Parking Spaces.
(iii) Parkers will be expected to park their cars in an
orderly manner within the marked stalls provided.
(iv) It is recommended that cars be left in a "brakes on,
doors locked" condition at all times.
(v) No car will be allowed to park in any driveway area
or in any manner which will interfere with the normal
flow of traffic.
(vi) Cars parked illegally will be towed at the car
owner's expense.
(vii) Tenant agrees that all its employees have been fully
informed as to the content of these regulations.
(viii) Landlord or Landlord's agents and employees shall not
be liable for and Tenant waives all claims resulting
from any accident or occurrence in and upon the
parking area.
(ix) All automobiles parked in the parking areas shall be
in good condition and repair, utilized for personal
transportation, not commercial in nature and driven
and handled at the risk of the owner.
(x) Automobile owner or owner's agents shall not wash,
wax or otherwise clean or prep the interior/exterior
of vehicles or perform any maintenance whatsoever on
vehicles within the parking area or on any part of
the parking lot servicing the Building.
(xi) In the event that automobile owner's use of the
parking area violates any local, county or state law,
regulation or ordinance, automobile owner's right to
utilize the parking area shall immediately cease. In
addition, in no event shall Tenant permit its
employees, licensees, invitees or other occupants to
use more than Tenant's Proportionate Share of the
existing parking spaces for the Project.
(xii) Parking areas shall not be used to store vehicles or
for parking large commercial or recreational
vehicles.
Tenant shall be responsible for the observance of all the foregoing rules and
regulations by Tenant's employees, agents, clients, customers, invitees,
licensees and guests. Landlord shall not be responsible for any violation of the
foregoing rules and regulations by other tenants of the Building and shall have
no obligation to enforce the same against other tenants. Landlord shall have the
right to amend these rules and regulations from time to time in accordance with
the terms of the Lease.
Approved by Tenant:
TENANT:
VASTERA, INC., a Delaware Corporation
By:
---------------------------------------
Printed:
----------------------------------
26
<PAGE>
Its:
--------------------------------------
27
<PAGE>
EXHIBIT C
DAILY JANITORIAL SERVICE
(a) All waste paper baskets and ashtrays are emptied and cleaned.
(b) All furniture and cleared desks are dusted as required.
(c) All carpeting is vacuum cleaned daily as required.
(d) All doors, doorknobs, and glass are wiped down as required.
(e) Walls are spot cleaned as required.
(f) Windows are spot cleaned as required.
(g) All corridors, common areas, common area bathrooms, and elevators
are cleaned daily, which includes washing all tile floors, washing out the sinks
and stalls, vacuum cleaning the hallway carpeting, cleaning out the drinking
fountains and spot cleaning the walls and mirrors where necessary.
Approved by Tenant:
TENANT:
VASTERA, INC., a Delaware Corporation
By:
---------------------------------------
Printed:
---------------------------------
Its:
-------------------------------------
28
<PAGE>
EXHIBIT D
SPECIAL PROVISIONS
D1 EXCESS TENANT IMPROVEMENT COSTS.
Landlord shall construct the Tenant Improvements up to a cost of Four
Hundred Sixty-Six Thousand Eight Hundred Twenty Dollars ($466,820.00) (the
"Tenant Improvement Allowance"). In the event the cost of completing the Tenant
Improvements is less than the Tenant Improvement Allowance, Landlord shall
retain the difference and Tenant shall have no claim for and not be entitled to
receive any such sums. In the event the estimated cost of completing the Tenant
Improvements in accordance with the Plans shall at anytime exceed one hundred
five percent (105%) of the Tenant Improvement Allowance, Tenant shall pay
Landlord, within ten (10) business days of request for such payment (which
request will come no more than twice monthly), the difference between the
estimated cost of completion and the Tenant Improvement Allowance on a
percentage of completion basis. If the estimated cost of completion of the
Tenant Improvements is less than one hundred five percent (105%) of the Tenant
Improvement Allowance, Tenant shall pay Landlord the difference between the
actual cost of completion and the Tenant Improvement Allowance when the Tenant
Improvements are substantially complete.
D2 OPTION TERM.
Provided that no default exists under this Lease and provided no default shall
have existed which is uncured within a period of one (1) year prior to the
notification hereunder by Tenant shall have the right to extend the Initial Term
of this Lease for one (1) term of five (5) Lease Years (the "Option Term"),
provided that Tenant shall deliver to Landlord written notice of its election to
extend the Term of this Lease at least twelve (12) months prior to the
expiration date of the Initial Term of this Lease. The failure of Tenant to
exercise its right to extend the Lease for any Option Term shall void all
subsequent Option Terms. Terms, covenants and conditions applicable to the
Option term shall be as then promulgated by Landlord, except as hereinafter
specifically set forth. Except for the granting of this Option Term and except
as expressly otherwise provided herein this Lease, the rent shall be adjusted as
below. The Initial Term and the Option Term, if exercised, are sometimes
collectively referred to hereinafter as the "Term". Base Rent for the Option
Term shall be as follows: the rent for the Option Term shall be at then
prevailing market level for comparable renewal space at the Building but not, in
any event, less than the Base Rent payable at the end of the current Term.
D3 LETTER OF CREDIT AS SECURITY.
Upon the execution hereof by Tenant, Tenant shall deliver a letter of credit to
Landlord in the amount set forth in Section 1.01(j) as the security deposit
and/or as security for the performance of the Guaranty. The letter of credit
shall not decline during the term of the Lease. The bank issuing the letter of
credit shall provide that the letter of credit shall not be cancelled or changed
in any manner for any reason whatsoever except upon thirty (30) days prior
written notice to Landlord. In the event any such notice is sent to Landlord,
Landlord shall have the right, but not the obligation to draw the entire amount
of the letter of credit and hold and/or apply the cash as a security deposit
hereunder. The letter of credit shall have an expiration date of not less than
one (1) year from the Commencement Date and shall be renewed by Tenant each and
every year during the term of this Lease so that the letter of credit (and or
replacements thereof issued by the same bank or another banking institution
meeting all of the requirements described in this Section) may be drawn down
through and including the sixtieth (60th) day after the Expiration Date. The
letter of credit shall be renewed thirty (30) days before its expiration and
Tenant shall deliver to Landlord a renewed or new letter of credit not less than
thirty (30) days prior to the expiration date of the letter of credit and if the
renewed letter of credit has not been timely delivered, Landlord may draw the
entire amount of the letter of credit and/or apply the cash as a security
deposit hereunder. Tenant shall keep that letter of credit (and/or replacements
thereof issued by the same bank or another banking institution having offices in
Michigan) in force during the entire term of the Lease. In the event the letter
of credit provides that it shall expire prior to the end of the term of this
Lease, the letter of credit shall be renewed thirty (30) days before its
expiration and Tenant shall deliver to Landlord a renewed or new letter of
credit not less than thirty (30) days prior to the expiration date of the letter
of credit and if the renewed letter of credit has not been timely delivered,
Landlord may draw the entire amount of the letter of credit and hold and/or
apply the cash as a security deposit hereunder. The letter of credit shall be
(i) irrevocable, (ii) unconditional, (iii) issued by a bank or other financial
institution (A) with an office in the State of Michigan which is reasonably
acceptable to Landlord, (B) that is a member of the Federal Reserve, (C) that is
rated "B" or better by the Thompson Bank Watch, and (D) approved by Landlord,
(iv) able to be drawn upon and confirmed by a bank or other financial
institution located in New York City, New York which is reasonably acceptable to
Landlord, (v) assignable without charge and (vi) in form reasonably acceptable
to Landlord. The letter of credit shall permit Landlord to draw down either
partial draws or the entire amount thereof (which shall thereafter be held and
applied in accordance with
29
<PAGE>
the terms of this Lease and law applicable to security deposits) upon
presentation of a sight draft executed by an authorized agent of Landlord.
D4 RIGHT OF FIRST REFUSAL.
D4.01 (a) For purposes of this Lease, the following terms shall have the
following meanings:
(i) The "Protected Space" shall mean the remaining space on the 5th
floor.
(ii) The "Initial Tenants" shall mean (A) all occupants of any portion
of the Protected Space whose occupancy is pursuant to, under or through
a lease with Landlord of such portion of the Protected Space that is in
effect on the date of this Lease, and (B) in the event any portion of
the Protected Space is vacant as of the date of this Lease, all tenants
who first occupy such space pursuant to, under or through a lease with
Landlord.
(b) Provided (i) Tenant is the Tenant originally named herein,
(ii) Tenant actually occupies at least seventy-five (75%) percent of the
Premises originally demised under this Lease, and (iii) Tenant is not in default
which is uncured under the terms and conditions of this Lease within one (1)
year of the date of the giving of the "RFR Notice" or the "RFR Space Inclusion
Date" (as such terms are hereinafter defined), if at any time during the term of
this Lease Landlord shall receive an offer to lease all or any part of the
Protected Space from any person or entity other than an Initial Tenant (or their
affiliates) which Landlord may desire to accept, Landlord shall offer to Tenant
the right to lease the RFR Space (as defined below) by notifying Tenant in
writing (the "RFR Notice") of the basic terms of such offer. The RFR Notice
shall include the base rent, square footage and location of the space (which may
include all or only a portion of the Protected Space together with all or a
portion of any other space in the Project, all such described space being the
"RFR Space"), tenant improvement allowance, and term of the offer to lease. If
the space described in the offer to lease Landlord receives includes all or a
portion of the Protected Space plus other space in the Project, Landlord shall
have the right, in its sole and absolute discretion, to have the RFR Space
consist of all or the portion of the Protected Space with or without the other
space. If the space described in the offer to lease Landlord receives is for
only a portion of the Protected Space, Landlord shall have the right, in its
sole and absolute discretion, to have the RFR Space consist of all or the
portion of the Protected Space. In addition, if the term described in the offer
to lease Landlord receives extends beyond the Initial Term of this Lease,
Landlord shall have the right, in its sole and absolute discretion, to have the
RFR Notice state that the term for the RFR Space will be co-terminus with the
Initial Term (and in such case Landlord shall have the right to make an
appropriate adjustment to the base rent, tenant improvement allowance and other
terms before stating them in the RFR Notice), or to have the RFR Notice state
that the term for the RFR Space is the longer term.
D4.02 Tenant may accept the offer set forth in the RFR Notice by delivering to
Landlord an unconditional acceptance (hereinafter called the "Tenant
Acceptance") of such offer within ten (10) days after delivery by Landlord of
the RFR Notice to Tenant. Tenant shall only have the right to accept the RFR
Notice in its entirety, not in part, and only on the terms provided in the RFR
Notice. If Tenant timely delivers the Tenant Acceptance, the RFR Space shall be
added to and included in the Premises on the later to occur of (i) the day that
Landlord receives the Tenant Acceptance or (ii) the date such RFR Space shall
become available for Tenant's possession as set forth in the notice and if none
is set forth in the notice, then determined in accordance with Section D4.03
(hereinafter called the "RFR Space Inclusion Date"). If Tenant does not accept
the RFR Notice within the ten (10) day period set forth above, Landlord may (but
shall not be obligated to) proceed to lease all or any portion of Protected
Space or the RFR Space, and Tenant shall no longer have any rights with respect
to the Protected Space or the RFR Space whatsoever, whether all or any portion
of such space is leased as described in the RFR Notice or otherwise at any time,
to any person or entity and under any terms and conditions. Time shall be of the
essence with respect to the giving of the Tenant Acceptance.
D4.03 If Tenant delivers the Tenant Acceptance, Tenant agrees to accept the RFR
Space in accordance with the terms of the RFR Notice and, if none are stated,
then otherwise in its condition and state of repair existing as of the RFR Space
Inclusion Date and understands and agrees that except as otherwise set forth in
the RFR Notice, Landlord shall not be required to perform any work, supply any
materials or incur any expense to prepare such space for Tenant's occupancy.
Within thirty (30) days after giving the Tenant Acceptance, Tenant shall execute
a lease amendment providing for the addition of the RFR Space to the Premises
and the modification of all lease terms affected by the addition of the RFR
Space to the Premises. Unless otherwise provided in the RFR Notice, the lease
amendment shall provide that the RFR Space shall become available for Tenant's
possession within ninety (90) days after the date of the RFR Notice and such
date shall be considered the "Scheduled Occupancy Date" described in Section
2.04 of this Lease and the provisions of Sections 2 and 3 shall apply to the
Plans for the Tenant Improvements, the construction of the Tenant Improvements,
the payment for the Tenant Improvements,
30
<PAGE>
the delivery of possession of the RFR Space, the establishment of the RFR
Inclusion Date and Commencement Date for the term for the RFR Space.
D4.04 Tenant must accept all RFR Space offered by Landlord at any one time if it
desires to accept any of such RFR Space. In the event Tenant shall accept any
RFR Space offered by Landlord in any RFR Notice, Tenant shall be deemed to have
irrevocably waived its right to lease any remaining portion of the Protected
Space. If Tenant at any time declines any RFR Space offered by Landlord, Tenant
shall be deemed to have irrevocably waived all further rights under this Section
D4.
D4.05 Notwithstanding the foregoing, Tenant's rights hereunder are subject and
subordinate, in each and every respect, to any rights of first refusal, options
or other rights, however designated, of any tenant of the Building under any
existing Building lease at the time of execution of this Lease. In no event
shall Landlord have any obligation to send an RFR Notice to Tenant for the lease
of any of the Protected Space under lease to any Initial Tenant (or their
affiliate), and upon the leasing of all or any portion of the Protected Space to
any Initial Tenant (or their Affiliate), Tenant shall have no further rights
under this Section D4 and shall have no further right to lease or be offered the
opportunity to lease all or any portion of the Protected Spaces.
D4.06 All rights under this Section D4 shall terminate upon the expiration of
the twenty-fourth (24th) month of the Initial Term of this Lease.
D4.07 Landlord shall use its best efforts to comply with the provisions of this
Section D4, but its failure to comply shall not constitute an event of default
under this Lease.
D5 NON-DISTURBANCE.
In the event of subordination of this Lease, the subordination shall be
conditioned upon the agreement of the mortgagee or lessor that in the event of
foreclosure or the assertion of any other rights under the mortgage or lease,
this Lease and the rights of Tenant hereunder shall continue in effect and shall
not be terminated or disturbed so long as Tenant continues to perform and no
Event of Default exists under this Lease.
D6 TENANT REVIEW RIGHT.
Provide no Event of Default exists under the Lease, Tenant shall have the right,
at its sole cost and expense, to review Landlord's records at the Manager's
office relating to Real Estate Taxes and Operating Expenses for the Base Year
and any subsequent year solely for the purpose of determining the amounts paid
by Tenant pursuant to Section 6 of this Lease. However, Tenant may only conduct
a review (i) upon reasonable notice to Landlord so as to allow Landlord
sufficient time to compile its records and make them available to Tenant at
Manager's office and upon reimbursement to Landlord for its costs and expenses
incurred in connection with such review; (ii) not more than sixty (60) days
after Tenant receives the Annual Statement of Real Estate Taxes and Operating
Expenses for the subject year, regardless of whether the year in question is the
Base Year or any subsequent year; (iii) not more than once during any Lease
Year; and (iv) by using an internal auditor or an independent certified public
accountant acceptable to Landlord in all respects which are not working for
Tenant on a contingency fee basis.
D7 TENANT'S RIGHT TO CURE.
If Landlord shall default in any of its obligations under this Lease, Tenant
shall give written notice of such default to Landlord. Landlord shall cure any
material default within thirty (30) days after the date of such notice or, in
the event that such default is of a character as to require more than thirty
(30) days to cure, Landlord shall commence curing such default within thirty
(30) days and shall diligently pursue such cure. If any material default relates
to a condition that is for the exclusive benefit of the Premises and as a result
thereof Tenant is denied the use of the Premises and Landlord fails to cure such
default in all material respects within the applicable time period, Tenant shall
have the right to cure such default in a good and workmanlike manner and
Landlord shall reimburse Tenant within thirty (30) days of demand for its
reasonable costs in performing such work.
Approved by Tenant:
TENANT:
VASTERA, INC., a Delaware Corporation
By:
----------------------------------
Printed:
-----------------------------
31
<PAGE>
Its:
--------------------------------
32
<PAGE>
EXHIBIT E
BASE BUILDING SHELL AND CORE
- Finished men's and women's restrooms, elevator lobby and common
corridors
- Drinking fountains in common corridor
- Electrical/telephone closets, with electrical service to the floor
electrical closet
- Building stairways
- Mechanical equipment room and janitorial closet
- Sheetrock core walls, perimeter and interior columns and exterior walls
above and below the windows, taped, spackled, primed and ready for
Tenant's finishes
- Building standard 4' x 4' ceiling grid installed
- Primary HVAC duct loop from the mechanical equipment room around the
building core including VAV mixing boxes and thermostats (1 per 1,000
s.f.)
- Sprinkler protection consisting of mains, laterals and uprights,
installed according to Building Code based on 100% open space plan
- Fire protection alarm and communications system with annunciation,
smoke control and evacuation installed according to Building Code
before Tenant's finishes based on 100% open space plan
- Tenant may utilize electricity up to 3.5 watts/square foot, including
lighting, without the necessity of supplemental HVAC
- All necessary floor leveling
- Plumbing to the core
- Fiber optics to first floor telephone closet
- Floor loading capacity 70 pounds per square foot
Approved by Tenant:
TENANT:
VASTERA, INC., a Delaware Corporation
By:
-------------------------------------
Printed:
--------------------------------
Its:
------------------------------------
33
<PAGE>
EXHIBIT F
SUBORDINATION AGREEMENT
THIS SUBORDINATION AGREEMENT, dated ______________, 19____ is hereby
entered into by and between __________________________ (hereinafter referred to
as "Lender"), _______________________________ (hereinafter referred to as
"Tenant"), and _______________________________ (hereinafter referred to as
"Landlord").
WHEREAS Tenant has leased real property (hereinafter referred to as "Premises")
from Landlord pursuant to the terms and conditions of a Lease, dated __________,
19___ together with modifications to Lease if any, (hereinafter collectively
referred to as "Lease") and
WHEREAS Lender desires to provide financing to Tenant; and
WHEREAS Lender desires to secure such financing with a lien against Tenant's
personalty, inventory and other personal property located at the "Premises" all
as more specifically identified in the attached Exhibit "A" (hereinafter
referred to as "Assets"), as such Exhibit "A" may be adjusted from time to time,
upon written approval by Landlord;
WHEREAS Landlord, pursuant to and in accordance with the terms and conditions of
the Lease, has a potential interest in the Assets; and
WHEREAS Lender desires to prioritize its lien against these Assets;
THEREFORE, in consideration of the payment by Tenant and Lender to Landlord of
$10.00, and for other good and valuable consideration, the adequacy and
sufficiency of which are hereby acknowledged, the parties to this Subordination
Agreement agree as follows:
1. The Assets identified on Exhibit "A" shall not be considered leasehold
improvement or fixtures. Specifically excluded from this designation of
Assets are repairs, replacements or installations of leasehold
improvements that Tenant may have made or will make during the term of
the Lease.
2. Upon three days prior written notice to Landlord, Lender may, at no
cost or expense to Landlord, in accordance with the terms of the
agreement(s) between Lender and Tenant, enter onto the Premises and
take possession of, sever or remove the Assets or any part thereof.
Such entry onto the Premises shall be for a period not to exceed three
consecutive days. Said Assets upon severance and/or removal may be
sold, transferred or otherwise disposed of. Any proceeds in excess of
Tenant's indebtedness to Lender shall be returned to Landlord to be
applied as follows: a) first to any past due rentals, then b) to future
rentals to be paid, and then c) any remaining proceeds shall be
returned from Landlord to Tenant. Lender agrees to repair any damage
caused by any severance and/or removal of Assets to the extent
necessary to restore the Premises to its condition immediately prior to
the Tenant's occupancy of the Premises.
3. Lender hereby agrees to indemnify and hold harmless Landlord form all
costs and claims, including legal fees resulting from Lender's exercise
of Lender's rights hereunder. Tenant hereby agrees to indemnify and
hold harmless Landlord from all costs and claims resulting from Lenders
exercise of Lender's rights hereunder.
4. The indemnifications offered to landlord by lender and Tenant in
Paragraphs 2, 3 and 4 hereinabove shall survive the expiration or
sooner termination of this Subordination Agreement or the Lease.
5. This Subordination Agreement shall not be recorded or filed by Tenant
or Lender. It is mutually agreed by the parties herein that any such
recordation or filing by Tenant or Lender shall serve to immediately
void and render null and of no further force or effect this
Subordination Agreement.
6. The statements and agreements contained herein shall be binding upon,
and shall inure to the benefit of Lender, Landlord, mortgagee of the
Premises and the Tenant, and the Parties executing this subordination
on behalf of Landlord, Tenant and Lender have all due power and
authority to execute this document.
7. The rights granted to Lender herein shall in no way interfere with or
prohibit Landlord's exercise of its rights under the terms of the
Lease. Furthermore, Landlord's exercise of its rights under the Lease
or law shall not give rise to any action or claim by lender against
Landlord in connection with the rights granted herein.
34
<PAGE>
8. The other provisions of this Subordination Agreement notwithstanding,
the term of this Subordination Agreement shall coincide with the term
of the Lease, and this Subordination Agreement shall terminate upon the
expiration or sooner termination of the Lease.
IN WITNESS HEREOF, the Parties have executed this Subordination Agreement
hereunder:
Attest: Tenant:
VASTERA, INC., a Delaware
Corporation
By: Its:
----------------------------- ----------------------------------
Attest: Lender:
By: Its:
---------------------------- ----------------------------------
Attest: Landlord:
By: Its:
------------------------ ----------------------------------
vestera email.doc
35
<PAGE>
TABLE OF CONTENTS
SECTION 1. BASIC LEASE PROVISIONS.........................................1
SECTION 2. THE PREMISES...................................................2
SECTION 3. THE TERM.......................................................3
SECTION 4. THE BASE RENT..................................................3
SECTION 5. LATE CHARGES AND INTEREST......................................3
SECTION 6. OPERATING EXPENSES, UTILITIES, AND TAXES.......................4
SECTION 7. USE OF PREMISES................................................6
SECTION 8. INSURANCE......................................................8
SECTION 9. DAMAGE BY FIRE OR OTHER CASUALTY...............................9
SECTION 10. REPAIRS, RENOVATIONS AND ALTERATIONS..........................10
SECTION 11. LIENS.........................................................11
SECTION 12. EMINENT DOMAIN................................................11
SECTION 13. ASSIGNMENT OR SUBLETTING......................................12
SECTION 14. INSPECTION OF PREMISES........................................13
SECTION 15. FIXTURES AND EQUIPMENT........................................13
SECTION 16. PARKING AREAS.................................................13
SECTION 17. NOTICE OR DEMANDS.............................................14
SECTION 18. BREACH; INSOLVENCY; RE-ENTRY..................................14
SECTION 19. SURRENDER OF PREMISES ON TERMINATION..........................15
SECTION 20. PERFORMANCE BY LANDLORD OF THE COVENANTS OF TENANT............15
SECTION 21. SUBORDINATION; ESTOPPEL CERTIFICATES..........................16
SECTION 22. QUIET ENJOYMENT...............................................16
SECTION 23. HOLDING OVER..................................................16
SECTION 24. REMEDIES NOT EXCLUSIVE; WAIVER................................16
SECTION 25. WAIVER OF SUBROGATION.........................................17
SECTION 26. RIGHT TO SHOW PREMISES........................................17
SECTION 27. INDEMNIFICATION...............................................17
SECTION 28. DEFINITION OF LANDLORD; LANDLORD'S LIABILITY..................18
SECTION 29. SECURITY DEPOSIT AND SECURITY INTEREST........................18
SECTION 30. RULES AND REGULATIONS.........................................18
SECTION 31. SIGNS AND ADVERTISING.........................................19
SECTION 32. GENERAL.......................................................19
EXHIBIT A SPACE PLAN.......................................................22
EXHIBIT B RULES AND REGULATIONS OF THE PROJECT.............................23
EXHIBIT C DAILY JANITORIAL SERVICE.........................................26
EXHIBIT D SPECIAL PROVISIONS...............................................27
D1 EXCESS TENANT IMPROVEMENT COSTS.......................................27
D2 OPTION TERM...........................................................27
D3 LETTER OF CREDIT AS SECURITY..........................................27
D4 RIGHT OF FIRST REFUSAL................................................28
D5 NON-DISTURBANCE.......................................................29
D6 TENANT AUDIT RIGHT....................................................29
D7 TENANT'S RIGHT TO CURE................................................29
36