UK-Surrey-Egham-188 High Street Underlease - AXON Solutions Ltd., Vastera Ltd. and Vastera Inc.
DATED
----------------------------------------------------------------------
AXON SOLUTIONS LIMITED
AND
VASTERA LIMITED
AND
VASTERA INC
----------------------------------------------------------------------
COUNTERPART
UNDERLEASE
of
188 High Street, Egham, Surrey
----------------------------------------------------------------------
Nabarro Nathanson
The Anchorage
34 Bridge Street
Reading RG1 2LU
Tel: 0118 950 4700
Fax: 0118 950 5640
<PAGE>
CONTENTS
CLAUSE SUBJECT MATTER PAGE
1. DEFINITIONS...........................................................1
2. INTERPRETATION........................................................4
3. GRANT AND TERM........................................................5
4. RIGHTS RESERVED AND REGRANTED.........................................6
5. THIRD PARTY RIGHTS OVER THE PREMISES..................................6
6. PAYMENT OF RENTS AND ADDITIONAL RENT..................................7
7. HEAD LEASE/LATENT DEFECTS/RIGHT OF WAY POLICY.........................8
8. RENT REVIEW..........................................................11
Definitions..........................................................11
Determination of Reviewed Rent.......................................13
Payment of Reviewed Rent.............................................14
Memorandum of Reviewed Rent..........................................15
Restraint on Review..................................................15
Time will not be of the essence in relation to this clause...........15
9. OTHER FINANCIAL MATTERS..............................................15
Utilities............................................................15
Common facilities....................................................15
Rates and taxes......................................................15
Payments relating to the Premises and other property.................16
Landlord's costs.....................................................16
VAT..................................................................16
Interest.............................................................16
Exclusion of statutory compensation..................................17
10. INSURANCE............................................................17
Tenant's obligations.................................................17
Suspension of rent...................................................17
Termination..........................................................18
Insurance monies.....................................................18
11. STATE AND CONDITION OF THE PREMISES..................................18
Repair...............................................................18
Redecoration.........................................................19
Alterations..........................................................19
i
<PAGE>
Signs and reletting notices..........................................19
12. USE OF THE PREMISES..................................................20
The Permitted Use....................................................20
Obstructions.........................................................20
Restrictions on use..................................................20
Fire and security precautions........................................20
Exclusion of warranty................................................21
13. DEALINGS.............................................................21
General restrictions.................................................21
Assignments..........................................................21
Underlettings........................................................22
Terms to be contained in any underlease..............................23
Further provisions relating to underleases...........................23
Charging.............................................................23
Declarations of trust................................................24
Group sharing of occupation..........................................24
Registration of dealings.............................................24
14. LEGAL REQUIREMENTS...................................................24
Legislation and Planning.............................................24
Notices relating to the Premises.....................................26
15. LANDLORD'S COVENANT FOR QUIET ENJOYMENT..............................26
16. LIMITS ON LANDLORD'S LIABILITY.......................................26
17. FORFEITURE...........................................................26
Landlord's right of re-entry.........................................26
Events giving rise to the Landlord's right of re-entry...............27
18. MISCELLANEOUS........................................................28
Notices..............................................................28
Landlord's rights to remedy default by the Tenant....................28
Tenant to provide information........................................28
Tenant's indemnity...................................................28
Tenant's acknowledgement.............................................28
Qualification of Landlord's liability................................28
Removal of goods after end of Term...................................29
Replacement Guarantee................................................29
19. GUARANTOR'S COVENANT.................................................29
20. TENANT'S OPTION TO DETERMINE.........................................30
21. LANDLORD'S OPTION TO DETERMINE.......................................31
ii
<PAGE>
22. EXCLUSION OF THE 1954 ACT............................................31
23. NEW OR OLD LEASE.....................................................31
iii
<PAGE>
PARTICULARS
NEW OR OLD TENANCY The tenancy created by this Lease is a new tenancy
for the purposes of the Landlord and Tenant
(Covenants) Act 1995
LANDLORD AXON Solutions Limited
Registered Office Rathgar House, 188 High Street, Egham, Surrey, TW20
9ED
TENANT Vastera Limited
Registered Office Amtest House, 75-79 Guildford Street, Chertsey,
Surrey, KT16 9AS
GUARANTOR VASTERA INC
Address for service in Rathgar House, 188 High Street, Egham, Surrey, TW20
England and Wales 9ED
PREMISES 188 High Street, Egham, Surrey
TERM GRANTED From and including __________1999 and expiring on 22
April 2013
RENT L159,000 per annum, subject to review
ADDITIONAL RENT L22,000 per annum
RENT REVIEW DATES 23 April 2003 and 23 April 2008
INTEREST RATE Four percent over The Royal Bank of Scotland Plc base
rate
PERMITTED USE Offices within Use Class B1 of the Town and Country
Planning (Use Classes) Order 1987
1
<PAGE>
SCHEDULE OF FIXTURES AND FLTTLNGS TO BE LEFT BY
AXON SOLUTIONS LIMITED
ON THEIR VACATION OF RATHGAR HOUSE ON THE ASSIGNMENT OF THE
LEASE TO VASTERA LIMITED
AGREED AT INSPECTION CARRIED OUT AT RATHGAR HOUSE ON 16 JULY 1999
PRESENT
Verena Skinner Axon Solutions Limited
Geoff Bates HBA (on behalf of Vastera Limited)
John Lynch HBA (on behalf of Vastera Limited)
2
<PAGE>
1.0 GENERALLY
All fixed partitions, glazed screens, doors, frames, over panels
etc as shown on HBA's drawings numbers 840/01, 02 and 03 14No
free standing obscured perspex screens in bright polished metal
frames
nb For IT infrastructure and all equipment associated with
security, authorized access etc, see separate IT
infrastructure and equipment schedule
2.0 GROUND FLOOR
2.1 FINANCE AREA
Horizontal louvre blinds to seven windows
Internal security grills to two windows
Range of fixed cupboards and benching to wall adjacent to
staircase
2.2 SHOWER AREA
Horizontal louvre blind to one window
Fixed shelving
1No tall storage cabinet
2.3 TEA AREA
Horizontal louvre blind to one window
All fixed kitchen units
1No fridge
2.4 RECRUITMENT ROOM
Horizontal louvre blind to two windows Internal security grille
to one window 3No white boards 1200mm x 900mm 1No white board
1200mm x 600mm
2.5 INTERNAL STORE
Nil
2.6 IT AREA / OPEN PLAN OFFICE
Horizontal louvre blinds to four windows
Internal security grille to one window
Range of fixed cupboards and benching to wall adjacent to
recruitment room
3No pictures and frames
2.7 RECEPTION AND WAITING AREA
Security system monitor. (See IT infrastructure and equipment
schedule)
1No picture and frame
3
<PAGE>
3.0 FIRST FLOOR
3.1 CORTEX
Horizontal louvre blinds to four windows
Roller blind to one windows
900mm x 600mm planner board
Key cabinet
3.2 MIS ROOM
Horizontal louvre blinds to two windows
For benches cabinets etc see IT infrastructure and equipment
schedule
3.3 INTERNAL STORE
Fixed shelving
Hanging rails
3.4 TEA ROOM
Horizontal louvre blinds to one window
All fixed kitchen units
1No Fridge
1No Dishwasher
1No tall storage cabinet
3.5 CONSULTANTS AREA
Horizontal louvre blinds to three windows
Roller blinds to three windows
AC unit
White board support rail. (No white board)
3.6 MEETING ROOM 3
Horizontal louvre blinds to two windows
Roller blinds to two windows
AC unit
White board support rail. (No white board)
Moveable partition separating meeting room 2
3.7 MEETING ROOM 2
Horizontal louvre blinds to two windows
Roller blinds to two windows
AC unit
White board support rail. (No white board)
Moveable partition separating meeting room 1
3.8 MEETING ROOM 2
4
<PAGE>
Horizontal louvre blinds to one window
AC unit
White board support rail. (No white board)
4.0 SECOND FLOOR
4.1 DIRECTOR 3
Horizontal louvre blind to three windows
2No 1200mm x 900mm white boards
4.2 DIRECTOR 2
1No 1200mm x 900mm white boards
4.3 DIRECTOR 1
Horizontal louvre blind to three windows
2No 1200mm x 900mm white boards
4.4 INTERNAL STORE
Fixed shelving
Hanging rails
4.5 CAFE
Horizontal louvre blinds to three windows
All fixed kitchen units
Fixed island worktop/table
1No 1200mm x 600mm notice board
Range of fixed cupboards and benching to external flank wall
2No round aluminium tables
8No aluminium chairs
3No aluminium high chairs
4.6 QUIET ROOM
Horizontal louvre blind to one window
Range of fixed benching to walls adjacent to cafe and director 4
4.7 DIRECTOR 4
Horizontal louvre blind to two windows
2No 1200mm x 900mm white boards
4.8 CENTRAL OFFICE
Horizontal louvre blinds to two windows
5.0 THIRD FLOOR
5.1 PLANT ROOM
5
<PAGE>
Storage of partitioning, doors, frames and overpanels to form
fourth meeting room at first floor level in consultants area
Storage of some of the free standing obscured perspex screens
scheduled in general items Storage of some of the aluminum chairs
scheduled in cafe at second floor level
6.0 REAR STAIRCASE AND CORE AREA
6.1 STAIRCASE
9No pictures and frames
6.2 TOILETS
1No soap dispenser and 1No paper towel dispenser to each of 6No
toilets.
Signed Date
------------------------------------ ------------------
On behalf of Axon Solutions Limited
Signed /s/ John Thurlow Date
------------------------------------ ------------------
On behalf of Vastera Limited
<PAGE>
[GRAPHIC OMITTED][GRAPHIC OMITTED]
Vastera Limited
/s/ Philip J. Balsamo
---------------------------------
/s/ John Thurlow
---------------------------------
Vastera Inc.
/s/ Philip J. Balsamo
---------------------------------
/s/ Arjun Rishi
---------------------------------
TITLE NO. [ILLEGIBLE]
7
<PAGE>
LEASE
DATE
PARTIES
(1) AXON SOLUTIONS LIMITED (incorporated and registered in England and
Wales under company number 2976395), the registered office of which is
at Rathgar House, 188 High Street, Egham, Surrey, TW20 9ED;
(2) VASTERA LIMITED (incorporated and registered in England and Wales under
company number 2036331), the registered office of which is at Amtest
House, 75-79 Guildford Street, Chertsey, Surrey, KT16 9AS; and
(3) VASTERA INC (incorporated and registered in the state of Delaware under
company number 54-161653) the registered office of which is at 45025
Aviation Drive Suite 200, Dulles, VA 20166-7554, USA and whose address
for service in England and Wales is at Rathgar House, 188 High Street,
Egham, Surrey, TW20 9ED.
IT IS AGREED AS FOLLOWS:
1. DEFINITIONS
In this Lease the following definitions apply:
"ADDITIONAL RENT"
means L22,000 per annum for the first 5 years of the Term;
"DEVELOPMENT"
has the same meaning as in the Planning Acts;
"FIXTURES AND FITTINGS"
means such of the fixtures and fittings set out in the list
annexed hereto as belong to the Landlord;
"HEAD LEASE"
means the Lease under which the Landlord holds the Premises
dated 24 December 1997 between (1) Canadian & Portland Estates
plc and (2) Axon Solutions Limited and all deeds and documents
from time to time supplemental thereto and any lease superior
to it;
1
<PAGE>
"GUARANTOR"
means the third party to this deed and/or any person who has
entered into a guarantee or an authorized guarantee agreement
pursuant to this Lease;
"GUARANTOR REPLACEMENT EVENT"
means (a) where the Guarantor is an individual death,
bankruptcy, having a receiving order made against him or
having a receiver appointed under the Mental Health Act 1993
and (b) where the Guarantor is a company the passing of a
resolution to wind up, entering into administration or
liquidation, having a receiver or administrative receiver
appointed or being struck off the register of companies;
"INSURANCE RENT"
means sums equal to the amounts paid from time to time by the
Landlord to the Head Landlord pursuant to Clause 2.2(b) of the
Head Lease;
"INSURED RISKS"
means Insured Risks as defined in the Head Lease;
"INTEREST RATE"
means four per cent over the base rate from time to time of
The Royal Bank of Scotland plc, or if that rate is no longer
published then four per cent above the rate of interest which
the Landlord reasonably considers to be most closely
comparable to minimum lending rates generally applicable in
the UK from time to time;
"LANDLORD"
means the first party to this deed and its successors in title
and persons entitled to the reversion immediately expectant on
the termination of this Lease;
"LATENT DEFECT"
has the meaning given to it in the Head Lease
"THIS LEASE"
means this deed as varied or supplemented by any document
which is supplemental to this deed;
"PERMITTED USE"
means offices within Use Class B1 of the Town and Country (Use
Classes) Order 1987;
"PLANNING PERMISSION"
shall have the meaning given to it in the Head Lease;
"PLANNING ACTS"
shall have the meaning given to it in the Head Lease;
2
<PAGE>
"PREMISES"
means 188 High Street, Egham, Surrey, as shown for
identification only edged red on the plan annexed to this deed
and more particularly described in the Head Lease and
including:
(a) all fixtures, fittings, plant, machinery and
equipment from time to time in or on the Premises,
other than tenant's or trade fixtures and fittings; and
(b) all additions, alterations and improvements made to the
Premises from time to time during the Term;
"RENT"
means One hundred and fifty-nine thousand pounds (L159,000)
per annum as reviewed under this Lease;
"REVIEW DATE"
means 23 April 2003 and 23 April 2008 and any other date when
the Rent may be reviewed under this Lease;
"SERVICE MEDIA"
means conduits and equipment used for the reception,
generation, passage and/or storage of Utilities;
"HEAD LANDLORD"
means Canadian & Portland Estates Plc and its successors in
title and all superior landlords however remote;
"TENANT"
means the second party to this deed and its successors in
title;
"TERM"
means a term from and including _____________ 1999 expiring on
22 April 2013;
"UTILITIES"
means electricity, gas, water, foul water and surface
drainage, heating, ventilation and air conditioning, smoke and
fumes, signals, telecommunications, satellite and data
communications and all other utilities;
"VAT"
means value added tax payable by virtue of the Value Added Tax
Act 1994 (or previous legislation relating to value added
tax).
3
<PAGE>
2. INTERPRETATION
2.1 In this Lease:
2.1.1 the table of contents and clause headings are for reference only and do
not affect its construction;
2.1.2 the words "include" and "including" are deemed to be followed by the
words "without limitation";
2.1.3 general words introduced by the word "other" do not have a restrictive
meaning by reason of being preceded by words indicating a particular
class of acts, things or matters; and
2.1.4 obligations owed by or to more than one person are owed by or to them
jointly and severally.
2.2 In this Lease, unless otherwise specified:
2.2.1 a reference to legislation is a reference to all legislation having
effect in the United Kingdom at any time during the Term, including
directives, decisions and regulations of the Council of Commission of
the European Union, Acts of Parliament, orders, regulations, consents,
licences, notices and bye-laws made or granted under any Act of
Parliament or directive, decision or regulation of the Council or
Commission of the European Union, or made or granted by a local
authority or by a court of competent jurisdiction and any approved
Codes of Practice issued by a statutory body;
2.2.2 a reference to particular legislation is a reference to that
legislation as amended, consolidated or re-enacted from time to time
and all subordinate legislation made under it from time to time; and
2.2.3 a reference to a clause is a reference to a clause or sub-clause of
this Lease.
2.3 In this Lease:
2.3.1 an obligation of the Tenant not to do something includes an obligation
not to cause or allow that thing to be done;
2.3.2 a reference to any act or to any act or omission of the Tenant includes
any act or any act or omission of any other person at the Premises with
the Tenant's express or implied authority;
2.3.3 the rights of the Landlord under any clause are without prejudice to
the rights of the Landlord under any other clause or supplemental
document or other instrument entered into in connection with this
Lease;
4
<PAGE>
2.3.4 the obligations of or restrictions on the Tenant or a Guarantor under
any clause, supplemental document or other instrument entered into in
connection with this Lease, are without prejudice to the obligations of
or restrictions on the Tenant or Guarantor, or to the rights of the
Landlord under any other clause, supplemental document or other
instrument entered into in connection with this Lease;
2.3.5 a reference to the consent or approval of the Landlord means the prior
consent in writing of the Landlord and, where required, of any superior
landlord or mortgagee of the Landlord;
2.3.6 references to any adjoining property of the Landlord include any
property adjoining or near the Premises owned, leased or occupied by
the Landlord from time to time;
2.3.7 references to the end of the Term are to the expiry or sooner
determination of the Term howsoever determined and whether before or at
the end of the term of years granted by this Lease;
2.3.8 where a sum is expressed to be payable on demand, it will become
payable, unless otherwise specified, one week after the demand has been
made;
2.3.9 references to a FAIR PROPORTION of any sum are to the whole or a
proportion of that sum which is fair and reasonable in the
circumstances as determined by the Landlord whose decision shall be
final and binding (save in case of manifest error or injustice);
2.3.10 unless otherwise specified, references to the Premises include any part
of the Premises; and
2.3.11 reference to any right exercisable by the Landlord, or any right
exercisable by the Tenant in common with the Landlord, is to be
construed as including, where appropriate, reference to the exercise of
the right by the Head Landlord and all persons authorised by him in
common with all other persons having a like right.
2.4 Where under the terms of this Lease the consent of the Landlord is
required for any act or matter, the consent of the Head Landlord under
the terms of the Head Lease is also to be required wherever requisite,
provided that nothing in this Lease is to be construed as imposing on
the Head Landlord any obligations not to refuse his consent
unreasonably, or as indicating that such an obligation is imposed on
the Head Landlord by virtue or the terms of the Head Lease.
3. GRANT AND TERM
3.1 At the request of the Guarantor, the Landlord leases the Premises to
the Tenant for the Term the Tenant paying the following sums, which are
reserved as rent: the Rent, the Additional Rent, the Insurance Rent and
any VAT payable on those sums and any interest due under this Lease.
5
<PAGE>
3.2 To the extent only that the Landlord is able to grant the same this
letting is made together with the rights referred to in Schedule 1 to
the Head Lease.
4. RIGHTS RESERVED AND REGRANTED
4.1 There are reserved from this Lease and regranted to the Landlord by the
Tenant:
4.1.1 the rights referred to in Schedule 2 to the Head Lease as if they were
set out in this Lease in full (mutatis mutandis);
4.1.2 the right to attach a sign to the exterior of the Premises advertising
that the Landlord's interest (or any superior interest) is for sale
provided that such sign does not materially restrict the access of
light or air to the Premises; and
4.1.3 the right to enter the Premises to exercise any other right reserved
and regranted to the Landlord by this Lease, or for any other
reasonable purpose connected with this Lease or with the Landlord's
interest in the Premises or any adjoining property of the Landlord.
4.2 The rights reserved and regranted by this Lease are reserved and
regranted to the Landlord and any superior landlord or mortgagee, and
may be exercised by anyone authorised by the Landlord or a superior
landlord.
4.3 The person exercising any right of entry reserved and regranted by this
Lease (save for the Head Landlord or others authorised by it) shall
cause as little inconvenience as reasonably practicable make good any
damage caused to the Premises (subject to Clause 4.4) but shall not be
under any obligation to make any other compensation to the Tenant or
other occupier of the Premises.
4.4 The Tenant shall allow any person who has a right to enter the Premises
to enter the Premises at all reasonable times, during and outside usual
business hours, provided that reasonable notice has been given, which
need not be written notice. In cases of emergency no notice need be
given.
5. THIRD PARTY RIGHTS OVER THE PREMISES
5.1 There are excepted from this deed and this Lease is granted subject to:
5.1.1 all existing rights which belong to other property, or are enjoyed by
other property over the Premises or any land or Service Media over
which rights are granted by the Landlord to the Tenant by this Lease;
5.1.2 the matters contained or referred to in the Head Lease; and
5.1.3 the matters contained or referred to in the registers of title numbers
SY543033 and SY387196 and in the documents referred to therein.
6
<PAGE>
5.2 The Tenant shall comply with the matters contained or referred to in
clause 5.1 so far as they relate to the Premises and the rights granted
by this Lease.
5.3 The Tenant shall:
5.3.1 not permit any third party to acquire any right over the Premises or to
encroach upon the Premises and shall give the Landlord immediate
written notice of any attempt to do this;
5.3.2 take any steps which the Landlord may reasonably require to prevent the
acquisition of any right over or encroachment on the Premises;
5.3.3 preserve for the benefit of the Premises and the Landlord's interest in
them all existing rights which belong to the Premises and are enjoyed
over adjoining or neighbouring property;
5.3.4 not block or obstruct any window or ventilator at the Premises; and
5.3.5 not grant any right or licence to a third party relating to the air
space at the Premises.
6. PAYMENT OF RENTS AND ADDITIONAL RENT
6.1 The Tenant agrees with the Landlord to pay without deduction or set off
(whether legal or equitable);
6.1.1 the Rent and any VAT payable on the Rent in four equal instalments in
advance on the usual quarter days;
6.1.2 the Additional Rent and any VAT payable on it in four equal instalments
in advance on the usual quarter days for the first five years of the
Term;
6.1.3 the Insurance Rent on demand; and
6.1.4 to pay interest in accordance with Clause 9.7.
6.2 The first instalment of the Rent and any VAT due on it is to be made on
the date hereof and is to be a proportionate amount for the period from
and including 1999 until the next quarter day thereafter.
6.3 The first instalment of the Additional Rent and any VAT on it is to be
made, and is to be a proportionate amount for the period from and
including the date of this deed until the next quarter day thereafter.
6.4 If required by the Landlord, the Tenant shall pay the Rent and any VAT
on it, and the Additional Rent and any VAT on it, by banker's standing
order to a bank account in the United Kingdom which the Landlord has
notified in writing to the Tenant.
7
<PAGE>
6.5 For the avoidance of doubt, it is agreed and declared that the
Additional Rent is payable for the purchase of the Fixtures and
Fittings and shall not be taken into account on any review of rent
either under this Lease or the Head Lease.
6.6 Title to be fixtures and fittings shall remain with the Landlord
provided that if the Tenant pays the Additional Rent on the due dates
throughout the first five years of the Term and the aggregate of such
payments is not less than L110,000 (exclusive of VAT), title to the
Fixtures and Fittings will then pass to the Tenant on receipt in
cleared funds by the Landlord of the last payment of such Additional
Rent.
7. HEAD LEASE/LATENT DEFECTS/RIGHT OF WAY POLICY
7.1 The Tenant shall observe and perform the covenants and conditions on
the part of the Tenant contained in the Head Lease (except for payment
of the Principal Rent (as defined in the Head Lease)), and must
indemnify the Landlord from and against any actions, proceedings,
claims, damages, costs, expenses or losses arising from any breach,
non-observance or non-performance of those covenants and conditions.
7.2 The Tenant must not do, omit, suffer or permit in relation to the
Premises any act or thing that would or might cause the Landlord to be
in breach of the Head Lease, or that if done, omitted, suffered or
permitted by the Landlord would or might constitute a breach of the
covenants on the part of the Tenant and the conditions contained in the
Head Lease.
7.3 The Tenant covenants with the Landlord:
7.3.1 to permit the Landlord upon reasonable notice (except in emergency) to
enter the Premises for any purpose that is in the reasonable opinion of
the Landlord necessary to enable it to comply with the covenants on the
part of the lessee and the conditions contained in the Head Lease;
7.3.2 to permit the Head Landlord and all persons authorized by the Head
Landlord to enter the Premises for the purposes specified and upon the
terms contained in the Head Lease as if the provisions in those
documents dealing with the lessor's access to the Premises were
incorporated into this Lease;
7.3.3 to pay to the Landlord on an indemnity basis all costs and other
expenses properly incurred by the Landlord in enforcing the covenants
on the part of the Head Landlord;
7.3.4 where the Tenant makes an application under this Lease for consent and
the consent of the Head Landlord is also required under the Head Lease
to pay on an indemnity basis:
(a) all costs and other expenses reasonably and properly incurred by
the Landlord in relation to that application whether that
application is granted refused offered subject to any
qualification or withdrawn including
8
<PAGE>
professional advice obtained by the Landlord in relation to that
application; and
(b) the costs and other expenses of the Head Landlord in relation to
that application.
7.4 The Landlord covenants with the Tenant:
7.4.1 to pay the Principal Rent reserved by the Head Lease;
7.4.2 on the request and at the expense of the Tenant to use reasonable
endeavours to enforce the covenants on the part of the Head Landlord
contained in the Head Lease;
7.4.3 at the expense of the Tenant to use reasonable endeavours to obtain the
consent of the Head Landlord required under the Head Lease to it when:
(a) the Tenant has applied for consent under this Lease;
(b) the Landlord gives that consent or could not reasonably refuse it
or gives the consent subject to consent being obtained from the
Head Landlord; and
(c) consent is required under the Head Lease.
7.5 Where any issue, question or matter arising out of or under or relating
to the Head Lease that also affects or relates to the provisions of
this Lease is to be determined as provided in the Head Lease the
determination of that issue, question or matter pursuant to the
provisions of the Head Lease is to be binding on the Tenant as well as
the Landlord for the purposes both of the Head Lease and this Lease,
provided that this provision is not to apply to the provisions for the
review of rent payable under the Head Lease.
7.6 In relation to any review or rent under the Head Lease the Landlord
shall use reasonable endeavours to negotiate a revised rent which (so
far as reasonably practicable) is at a rate favourable to both the
Landlord as lessee under the Head Lease and the Tenant. In doing so the
Landlord shall consult with the Tenant in relation to the review of
rent under the Head Lease and keep the Tenant informed of all rent
review notices submissions counter-submissions and proposals and in
particular of the determination of the expert or arbitrator (as the
case may be).
7.7
7.7.1 "POLICY" means a Denial of Access policy issued by Guardian Insurance
Policy Number QJ746/VC750964 with an inception date of 21 January 1998.
7.7.2 "WARRANTY AGREEMENTS" means:
9
<PAGE>
(a) a Collateral Warranty Agreement dated 16 February 1998 between
(1) Axon Solutions Limited and (2) Ross & Partners Limited;
(b) a Warranty Agreement dated 16 February 1998 between (1) Ross &
Partners Limited and (2) Axon Solutions Limited;
(c) a Warranty Agreement dated 16 February 1998 between (1) Water
Lewandowski Limited and (2) Axon Solutions Limited;
(d) a Warranty Agreement dated 16 February 1998 between (1) Hilson
Moran Partnership Limited and (2) Axon Solutions Limited; and
(e) a Warranty Agreement dated 16 February 1998 between (1) Tarmac
Construction Limited and (2) Axon Solutions Limited.
7.8 In the event of any claimant establishing a legal right to prevent the
Tenant from using the alley way shown coloured blue on the plan to the
Policy for access to the Premises in connection with the "Insured Use"
(as defined in the Policy) of the Premises, and such claimant obtaining
from a Court of competent jurisdiction an order or judgement in respect
of such right, the Landlord shall at the request and cost of the Tenant
use its reasonable endeavours to make a claim under the Policy.
7.9 In the event of any substantial disrepair to the Premises caused by a
Latent Defect the Landlord shall at the request and cost of the Tenant
(following written notice from the Tenant to the Landlord giving full
details of such Latent Defect, the disrepair and requesting such
action):
7.9.1 use its reasonable endeavours to enforce the Warranty Agreements;
7.9.2 the Landlord shall lay out such damages received by the Landlord as a
result of such enforcement (save for monies received in respect of
costs and expenses, monies properly due to the Head Landlord or monies
relating to the Landlord's interest in the Premises) in:
(a) using its reasonable endeavours to obtain all necessary planning
permissions and other consents;
(b) using its reasonable endeavours to remedy either the disrepair or
the Latent Defect (at the Landlord's discretion) to the extent
necessary to render the Premises capable of occupation and use;
or
(c) the Landlord may, if the Tenant has remedied any such Latent
Defect or disrepair caused by a Latent Defect to the satisfaction
of the Landlord, account to the Tenant for such part of such
damages received by the Landlord as a result of enforcement of
the Warranty Agreements (save as aforesaid) as shall relate to
such works carried out by the Tenant.
10
<PAGE>
7.10 The Tenant covenants with the Landlord to pay to the Landlord on a
indemnity basis all costs and other expenses properly incurred by the
Landlord in complying with its obligations in clauses 7.8 and 7.9 and
shall indemnify the Landlord all times both during and after the Term
against all liabilities, damages, costs and expenses arising directly
or indirectly from any act or omission of the Landlord or proceedings
to which the Landlord is a party in complying with clauses 7.8 and 7.9.
7.11 The Landlord shall not be obliged to take any action pursuant to or
otherwise to comply with clauses 7.8 or 7.9 until the Tenant has first
provided the Landlord, if the Landlord shall reasonably so require,
with security for the costs and expenses of the Landlord and such
liabilities, damages, costs and expenses as may arise in complying with
the Landlord's obligations in clauses 7.8 and 7.9.
8. RENT REVIEW
8.1 DEFINITIONS
In this Clause 8 the following definitions apply:
"ASSUMPTIONS" means the following assumptions which shall apply on a
rent review:
(a) that the covenants on the part of the Landlord and the Tenant
have been duly observed and performed, and that the covenants on
the part of the Landlord and the Head Landlord in the Head Lease
have been duly observed and performed;
(b) that on the relevant Review Date the Premises are fit for
immediate occupation and use for the purpose of trading from them
and if then damaged or destroyed that they have been fully
reinstated;
(c) that no work has been carried out by the Landlord, the Tenant,
its sub-tenants or any predecessors in title which has diminished
the rental value of the Premises;
(d) that no reduction shall be made to take account of any rental
concession which on a new letting with vacant possession might be
granted to an incoming tenant for a period within which such
tenant's fitting out works would take place;
(e) that the benefit of any Planning Permission and any other
necessary consent current at the relevant Review Date is also
available to a willing tenant;
(f) that the Premises may lawfully be used for the Permitted Use and
any other use subsequently authorised by the Landlord or by the
Head Landlord; and
(g) that the Premises can be let in parts.
11
<PAGE>
"DISREGARDS" means the following matters which shall be disregarded on any rent
review:
(a) so far as may be permitted by law, any temporary legal restraints
on making or recovering any increase in rent;
(b) any works and improvements carried out to the Premises by the
Tenant or any lawful sub-tenant at their own expense during the
Term with all necessary consents. Works or improvements shall not
be disregarded if they were carried out pursuant to an obligation
to the Landlord or in consideration of any reduction or abatement
of rent or fee payable under any Licence or agreement
supplemental to this Lease;
(c) any goodwill attaching to the Premises by reason of the business
conducted from them;
(d) the fact that the Tenant or any lawful sub-tenant or their
respective predecessors in title have been or are in occupation
of the Premises;
(e) the fact that a willing tenant may not be able to recover all of
any part of any value added tax levied by the Landlord on any of
the rents; and
(f) the Additional Rent.
"HYPOTHETICAL LEASE" means a lease:
(a) granted with vacant possession in the open market without a
premium between a willing landlord and willing tenant;
(b) for a term of years equal in length to the unexpired residue of
the Term or a term of ten years, whichever is the longer, but
commencing in either case on the relevant Review Date;
(c) containing similar covenants, conditions, provisions, agreements
and declarations to those contained in this Lease, but excluding
any reference to the Additional Rent;
(d) excluding the amount of Principal Rent payable under this Lease;
(e) including provisions for the review of the Rent every five years
identical to these provisions.
"MARKET RENTAL VALUE" means the rent at which the Premises might
reasonably be expected to be let on the relevant Review Date as a
whole, on the relevant Review Date on the terms of a Hypothetical Lease
making the Assumptions and disregarding the Disregards;
12
<PAGE>
"PRESIDENT" means the President for the time being of the Royal
Institution of Chartered Surveyors or, in default of the President, the
Vice-President or next senior officer of the said Institution able to
appoint a Surveyor;
"SURVEYOR" means an independent surveyor or valuer to be appointed in
accordance with Clause 8.2; and
"UPLIFT" means the amount, if any, by which the Market Rental Value at
the relevant Review Date exceeds the Rent payable immediately prior to
the relevant Review Date.
8.2 DETERMINATION OF REVIEWED RENT
8.2.1 Subject to Clause 8.5, the Rent shall be reviewed on each Review Date.
From the relevant Review Date the Rent shall be the higher of:
(a) the Rent reserved immediately prior to the relevant Review Date
(disregarding any suspension of Rent);
(b) the Principal Rent agreed or determined under the Head Lease with
effect from the relevant Review Date whether or not in fact
determined by the relevant Review Date; and
(c) the Market Rental Value agreed or determined in accordance with
this Clause 8.2 whether or not in fact determined by the relevant
Review Date.
8.2.2 In the absence of agreement between the Landlord and the Tenant, the
Market Rental Value shall be determined by the Surveyor acting at the
election of the Landlord either as an arbitrator under the Arbitration
Act 1996 or as an expert.
8.2.3 The Surveyor may be appointed not more than six months before or at any
time after the relevant Review Date:
(a) by agreement between the Landlord and the Tenant; or
(b) in the absence of such agreement, by the President upon the
application of the Landlord or the Tenant.
8.2.4 If the President is unavailable for any reason, unable, or fails to
make such appointment at the time of application, the appointment of
the Surveyor shall be made by such officer of such professional body as
the Landlord shall reasonably designate.
8.2.5 If the Surveyor acts as an expert he shall:
(a) afford to both the Landlord and the Tenant an opportunity to make
representations to him and to comment on the representations made
by the other party;
13
<PAGE>
(b) not be fettered by any such representations or comments;
(c) determine the Market Rental Value in accordance with his own
judgment and his determination shall be final and binding upon
the parties; and
(d) provide a reasoned award if requested by either the Landlord or
the tenant.
8.2.6 The Landlord or the Tenant may apply for a substitute Surveyor to be
appointed in accordance with Clause 8.2.3 if:
(a) the Surveyor fails to determine the Market Rental Value within
three months after the date of his appointment or such longer
period as may in all the circumstances be reasonable;
(b) the Surveyor relinquishes his appointment or dies; or
(c) if for any reason it becomes apparent that the Surveyor will be
unable to complete his duties under this Clause 8.2.
This procedure may be repeated as often as necessary.
8.2.7 The fees payable to the President and to the Surveyor shall in the case
of arbitration be borne as determined by the Surveyor but otherwise
shall be borne by the Landlord and the Tenant in equal shares.
8.2.8 Immediately upon the Landlord and the Tenant reaching agreement as to
the Market Rental Value or upon the Surveyor's determination of this,
the Rent will, as from the relevant Review Date, be and be deemed to
have been reviewed in accordance with this Clause 8.
8.3 PAYMENT OF REVIEWED RENT
If the Market Rental Value has not been agreed or determined by the
relevant Review Date:
(a) the Tenant shall pay the Rent to the Landlord at the rate payable
immediately prior to the relevant Review Date until the date of
such agreement or determination ("THE DATE OF DETERMINATION");
and
(b) within 7 days of the Date of Determination the Tenant shall pay
to the Landlord:
(i) the Uplift for the period from the relevant Review Date
until the quarter day next following the Date of
Determination; and
(ii) interest on the Uplift calculated on a daily basis at 4%
below the Interest Rate from the date upon which each part
of the Uplift
14
<PAGE>
would have been payable if the Market Rental Value had been
agreed prior to the relevant Review Date until the date of
payment.
8.4 MEMORANDUM OF REVIEWED RENT
Upon the Market Rental Value being agreed or determined in accordance
with Clause 8.2 a memorandum of the Rent payable with effect from the
relevant Review Date shall be signed by the Landlord, the Tenant and
the Guarantor or by a duly authorised officer on behalf of any such
parties.
8.5 RESTRAINT ON REVIEW
8.5.1 The provisions of Clause 8.5.2 will apply if at any time by reason of
any statute the landlord is prevented by such statute either in whole
or in part:
(a) from increasing the Rent in accordance with the terms of this
Lease; or
(b) from recovering such increase from the Tenant.
8.5.2 If the circumstances in Clause 8.5.1 apply the Landlord may serve
notice on the Tenant at any time specifying that the date upon which
such circumstances cease to apply in whole or in part will be deemed
Review Date for the purposes of this Lease. The Landlord may, but so
far only as may be permitted by law, review the Rent in accordance with
the provisions of this Lease on each such occasion provided always that
this shall not occur more than once in any five year period.
8.6 Time will not be of the essence in relation to this clause.
9. OTHER FINANCIAL MATTERS
9.1 UTILITIES
The Tenant shall pay all charges, including connection and hire
charges, relating to the supply of Utilities to the Premises and will
comply with all present or future requirements and reasonable
recommendations of the suppliers of the Utilities to the Premises.
9.2 COMMON FACILITIES
The Tenant shall pay on demand a fair proportion determined by the
Landlord of any costs incurred or payable by the Landlord in respect of
any land or Service Media not forming part of, but used in connection
with and for the benefit of the Premises.
9.3 RATES AND TAXES
The Tenant shall pay and indemnify the Landlord against all present and
future rates, duties and assessments of any nature charged on or
payable in respect of the Premises and whether or not of a capital or
non-recurring nature (except any tax imposed on
15
<PAGE>
the Landlord in respect of the receipt of rents reserved by this Lease
or any dealing with or disposition by the Landlord of its interest in
the Premises).
9.4 PAYMENTS RELATING TO THE PREMISES AND OTHER PROPERTY
Where any of the charges payable under clauses 9.1, 9.2 or 9.3 relates
to other property as well as the Premises, the amount to be paid by the
Tenant will be a fair proportion of the whole of the amount charged or
payable.
9.5 LANDLORD'S COSTS
The Tenant shall pay to the Landlord, on demand, and on an indemnity
basis, the fees, costs and expenses properly charged, incurred or
payable by the Landlord and by the Head Landlord and their advisors or
bailiffs in connection with:
9.5.1 any steps taken in contemplation of, or in relation to, any proceedings
under section 146 or 147 of the Law of Property Act 1925 or the
Leasehold Property (Repairs) Act 1938, including the preparation and
service of all notices, and even if forfeiture is avoided (unless it is
avoided by relief granted by the court);
9.5.2 preparing and serving schedules of dilapidations at any time during the
Term (or within 6 months after the end of the Term in respect of
dilapidations arising during the Term), and supervising any works
undertaken to remedy such dilapidations;
9.5.3 recovering (or attempting to recover) any arrears of Rent or other sums
due to the Landlord under this Lease, including the costs of preparing
and serving any notice under section 17 of the Landlord and Tenant
(Covenants) Act 1995 and any costs associated with the Landlord's
remedies of distress or execution; and
9.5.4 any application for a consent of the Landlord (including the
preparation of any documents) which is needed by virtue of this Lease,
(whether or not such consent is granted and whether or not the
application is withdrawn).
9.6 VAT
9.6.1 Where the Tenant is to pay the Landlord for any supply made to the
Tenant by the Landlord, the Tenant shall also pay any VAT which may be
payable in connection with that supply upon receipt of a valid VAT
invoice.
9.6.2 Where the Tenant is to pay the Landlord the costs of any supplies made
to the Landlord, the Tenant shall also pay the Landlord any VAT payable
in connection with that supply, except to the extent that the Landlord
is able to obtain a credit for the VAT from HM Customs & Excise.
9.7 INTEREST
16
<PAGE>
If the Rent or the Additional Rent is not paid on the due date for
payment or if any other sum payable under this Lease is not paid to the
Landlord within one week of the due date for payment or if the Landlord
refuses to accept any Rent Additional Rent or other such sum when the
Tenant is in breach of any of its obligations in this Lease, the Tenant
shall pay interest to the Landlord at the Interest Rate for the period
from and including the due date until payment (both before and after
any judgment).
9.8 EXCLUSION OF STATUTORY COMPENSATION
Any statutory right of the Tenant, or any undertenant, to claim
compensation from the Landlord or any superior landlord on leaving the
Premises is excluded to the extent that the law allows.
10. INSURANCE
10.1 TENANT'S OBLIGATIONS
The Tenant shall:
10.1.1 pay the insurance Rent in accordance with this Lease;
10.1.2 comply with the requirements of the insurers relating to the Premises
and not do or omit to do anything which may make any insurance of the
Premises (or of any adjoining property) void or voidable, or which
would result in an increase in the premiums for such insurance;
10.1.3 give the Landlord immediate written notice of any damage to or
destruction of the Premises by an Insured Risk;
10.1.4 pay the Landlord on demand an amount equal to any amount which the
insurers refuse to pay, following damage or destruction by an Insured
Risk, because of any act or omission of the Tenant and the amount of
any excess required by the insurers in connection with that damage or
destruction;
10.1.5 without limitation, the Tenant shall comply with the obligations
contained in Clause 4.5 of the Head Lease as if they were set out in
full in this deed.
10.2 SUSPENSION OF RENT
10.2.1 If the circumstances in Clause 4.6 (1) of the Head Lease apply, the
Rent, or a fair proportion of it according to the nature and extent of
the damage sustained, shall be suspended for a period equal to the
period for which loss of rent insurance has been effected by the Head
Landlord or until the Premises are rendered fit for occupation and use,
whichever is the shorter period.
10.2.2 The Rent will not be suspended to the extent that any loss of rent
insurance has been made ineffective, or payment of it has been refused
by the insurers because
17
<PAGE>
of any act or omission by the Tenant, nor unless and until any arrears
of Rent or other sums due under this Lease have been paid by the Tenant
in full.
10.3 TERMINATION
10.3.1 If the Premises are damaged or destroyed by any of the Insured Risks
and the Premises (or any part of it) is still unfit for occupation or
use two years and 6 months after the date upon which the damage or
destruction occurred either party may thereafter for so long as the
Premises or part remains so unfit serve on the other 6 months notice
referring to this clause and on the expiry of such notice this Lease
will immediately come to an end provided that such notice shall not be
effective if at or at any time prior to the expiry of the notice the
Premises are against fit for occupation and use.
10.3.2 Termination will not affect the rights that either party may have
against the other and the insurance money received by the Landlord or
in the Head Landlord in respect of the Premises shall belong to the
Landlord or the Head Landlord (as the case may be).
10.4 INSURANCE MONIES
All insurance monies payable will belong to the Landlord or the Head
Landlord, but not to the Tenant.
11. STATE AND CONDITION OF THE PREMISES
11.1 REPAIR
11.1.1 The Tenant shall repair the Premises and keep them in good and
substantial repair and condition but the Tenant need not do so where
the disrepair is caused by a Latent Defect in so far as the same is the
responsibility of the Head Landlord pursuant to Clause 6.2 of the Head
Lease.
11.1.2 The Tenant shall keep all plant and equipment within or forming part of
the Premises in good working order and replace by new articles of
similar kind and quality any fixtures, fittings, plant or equipment
(other than Tenant's or trade fixtures and fittings) within or forming
part of the Premises which are in need of replacement and without
limitation shall at the end of the Term replace the carpets and any
damaged ceiling tiles by new articles of similar kind and quality to
the Landlord's reasonable satisfaction.
11.1.3 The Tenant shall:
(a) keep any outside parts of the Premises clean and tidy, and any
landscaped areas properly weeded;
18
<PAGE>
(b) keep grass, gardens, trees and shrubs in proper and neat order
and condition and properly maintained and cultivated to the
reasonable satisfaction of the Landlord;
(c) keep any unbuilt upon areas adequately surfaced and in good
and substantial repair and condition; and
(d) regularly clean the inside and outside of the windows at the
Premises and replace any plate glass which becomes broken or
damaged.
11.1.4 Damage by way of the Insured Risks is excepted from the Tenant's
liability under sub-clauses 11.1.1, 11.1.2 and 11.1.3 unless the
insurance monies are rendered irrecoverable in whole or any part by any
act or default of the Landlord the Tenant any other occupier for the
time being of the Premises or their servants agents employees licensees
invitees or visitors.
11.1.5 At the end of the Term the Tenant will yield up the Premises with
vacant possession decorated and repaired in accordance with and in the
condition required by this Lease.
11.1.6 (a) The Tenant shall enter into and maintain contracts for the
maintenance and repair of the Premises and of plant and machinery at
the Premises with contractors approved by the Landlord such approval
not to be unreasonably withheld or delayed.
(b) If the Landlord reasonably considers that the Tenant is not fully
complying with its obligations in sub-clause 11.1 or 11.2 of this Lease
the Landlord may, without prejudice to its other rights and remedies,
appoint a contractor to carry out maintenance and repair of the
Premises and of plant and machinery at the Premises and any proper
costs incurred by the Landlord will be a debt due from the Tenant
payable on demand and may be recovered by the Landlord as if it were
additional rent.
11.2 REDECORATION
The Tenant shall comply with the provisions of Clause 5.4 of the Head
Lease as if they were set out in full in this deed but referred to the
Term of this Lease.
11.3 ALTERATIONS
11.3.1 The provisions of Clause 5.6 of the Head Lease shall apply to the Lease
as if they were set out in full in this deed but referred to the
Premises and the Term of this Lease.
11.4 SIGNS AND RELETTING NOTICES
11.4.1 The Tenant shall not display any sign, notice, flag, bill, placard,
poster or advertisement at the Premises which can be seen from outside
the Premises,
19
<PAGE>
except one external sign approved by the Landlord and by the Head
Landlord and giving the name and business of the Tenant (or other
authorised occupier), and at the end of the Term the Tenant shall
remove any such sign make good any damage caused by that removal to the
reasonable satisfaction of the Landlord.
11.4.2 The Tenant shall permit the Landlord to place a sign on the Premises at
any time advertising the sale of the Landlord's interest (or any
superior interest) in the Premises and during the last six months of
the Term for the reletting of the Premises.
12 USE OF THE PREMISES
12.1 THE PERMITTED USE
The Tenant shall not use the first, second and third floors of the
Premises for any purpose other than for the Permitted Use and shall not
use the roof void in the Premises for any purpose other than as a space
for plant and equipment which serve the Premises.
12.2 OBSTRUCTIONS
The Tenant shall not obstruct any pavement, footpath or roadway
adjoining or serving the Premises.
12.3 RESTRICTIONS ON USE
The Tenant shall not:
12.3.1 leave the Premises unoccupied for a period of more than three months
without the consent of the Landlord such consent not to be
unreasonably withheld or delayed, but the Tenant will not by virtue
of this clause be required to trade from the Premises;
12.3.2 do anything on the Premises which is illegal or immoral or which
would cause a nuisance or inconvenience or any damage or disturbance
to the Landlord or any owner or occupier of any other property
adjoining or near the Premises;
12.3.3 carry out any acts at the Premises which are noisy, noxious,
dangerous or offensive or store dangerous or inflammable materials
at the Premises;
12.3.4 allow rubbish to accumulate at the Premises nor allow any material
which is deleterious, polluting or dangerous (to persons or
property) to enter any Service Media or any adjoining property; nor
12.3.5 overload or obstruct any Service Media which serve the Premises.
12.4 FIRE AND SECURITY PRECAUTIONS
20
<PAGE>
The Tenant shall comply with the requirements and recommendations of
the fire authority and with any reasonable requirements of the Landlord
relating to fire prevention and the provision of fire fighting
equipment at the Premises and the reasonable requirements of the
Landlord in relation to the security of the Premises while they are
vacant.
12.5 EXCLUSION OF WARRANTY
The Landlord does not warrant or represent that the Premises may be
used for the Permitted Use or for any other purpose.
13. DEALINGS
13.1 GENERAL RESTRICTIONS
The Tenant shall not part with nor agree to part with possession of
the whole or part of the Premises or this Lease, nor allow any other
person to occupy the whole or any part of the Premises, except as
permitted by the remainder of this Clause 13.
13.2 ASSIGNMENTS
13.2.1 The Tenant shall not assign any part (as opposed to the whole) of
this Lease and shall not assign the whole of this Lease without the
consent of the Landlord, such consent not to be unreasonably
withheld or delayed.
13.2.2 The Landlord and the Tenant agree that, for the purposes of section
19(1A) of the Landlord and Tenant Act 1927:
(a) the Landlord may refuse its consent to an assignment if in the
reasonable opinion of the Landlord the proposed assignee is
not of sufficient financial standing to pay the Rent and other
sums payable under this Lease and to comply with the Tenant's
obligations in this Lease (except where in the reasonable
opinion of the Landlord acceptable security for such payments
and such obligations is provided);
(b) the Landlord may refuse its consent to an assignment unless
the Guarantor enters into a deed, no later than the date of
the instrument of the proposed assignment, which deed is to
provide for a guarantee of all of the obligations of the
Tenant contained in any authorised guarantee agreement entered
into pursuant to paragraph (c) below; and
(c) the Landlord may give its consent to an assignment subject to
a condition that the Tenant enters into an authorised
guarantee agreement no later than the date of the instrument
of the proposed assignment, which agreement is to be by deed,
is to provide for a guarantee of all the obligations of the
proposed assignee under this Lease from the date of the
proposed assignment until the proposed assignee is released by
virtue of the Landlord and Tenant (Covenants) Act 1995, and
which provides for all the
21
<PAGE>
matters permitted by section 16(5) of that Act and which is
otherwise in accordance with section 16 of that Act and in a
form reasonably required by the Landlord.
13.2.3 Clause 13.2.2 does not limit the right of the Landlord to refuse
consent to an assignment on any other reasonable ground or to impose
any other reasonable condition to its consent.
13.3 UNDERLETTINGS
13.3.1 In this clause the following definitions apply:
"PERMITTED PART"
means an entire floor of the Premises;
13.3.2 The Tenant shall not underlet or agree to underlet any part of the
Premises (as distinct from the whole) except by an Underlease of a
Permitted Part.
13.3.3 The Tenant shall not underlet the whole of the Premises or a
Permitted Part except in accordance with the remainder of this
clause 13.3 and with clause 13.4 (Terms to be contained in any
underlease) and then only with the consent of the Landlord, such
consent not to be unreasonably withheld or delayed.
13.3.4 The Tenant shall not underlet the Premises or a Permitted Part
without first obtaining from the undertenant a covenant by the
undertenant with the Landlord to comply (except in the case of an
underletting of a Permitted Part in so far as inapplicable to the
Permitted Part) with the terms of this Lease on the part of the
tenant, other than as to the payment of any Rent or other sums
reserved as rent by this Lease, and to comply with the obligations
on the undertenant in the underlease throughout the term of the
underlease or until the undertenant is released by virtue of the
Landlord and Tenant (Covenants) Act 1995, if sooner.
13.3.5 Any underlease of the whole of the Premises or of a Permitted Part
shall be granted:
(a) at a rent which is not less than the then full open market
rental value of the whole Premises or the Permitted Part (as
the case may be);
(b) without a fine or premium; and
(c) with the underlease rent payable not more than one quarter in
advance.
13.3.6 The Tenant shall not grant an underlease until the Landlord has
given its approval of an order of a court of competent jurisdiction
made under section 38(4) of the Landlord and Tenant Act 1954
authorising an agreement excluding sections 24 to 28 (inclusive)
from the tenancy to be created by the underlease. The Tenant shall
supply the Landlord with a copy of the order (with the form of
underlease) certified by solicitors as a true copy of the original
for this purpose.
22
<PAGE>
13.4 TERMS TO BE CONTAINED IN ANY UNDERLEASE
Any underlease shall contain the following terms:
13.4.1 (where the term of the underlease extends beyond a Review Date) a
provision for the review of the rent in the same terms and on the
same dates as the review of the Rent in this Lease;
13.4.2 an obligation on the undertenant not to deal with or dispose of its
interest in the underlease, or part with possession of the whole or
part of that interest or permit any other person to occupy the
Premise or the Permitted Part (as the case may be) except by way of
an assignment or charge of the whole of its interest in the Premises
or the Permitted Part (as the case may be) which may only be made
with the Landlord's consent, such consent not to be unreasonably
withheld or delayed; and
13.4.3 agreements between the Tenant and the undertenant in the same terms
as Clause 13.2.2 and a further agreement between the Tenant and the
undertenant expressed to be for the purposes of section 19(1A) of
the Landlord and Tenant Act 1927 that the Tenant may give its
consent to an assignment of the underlease subject to a condition
that the proposed assignee of the underlease enters into a covenant
with the Landlord with effect from the date of the instrument of the
assignment of the underlease in the terms of the covenant required
from the undertenant by Clause 13.3.3,
and shall otherwise be consistent with the terms of this Lease.
13.5 FURTHER PROVISIONS RELATING TO UNDERLEASES
13.5.1 The Tenant shall procure that the rent in any underlease is reviewed
in accordance with the underlease and shall not agree the level of
any reviewed rent with an undertenant without the consent of the
Landlord, such consent not to be unreasonably withheld or delayed.
13.5.2 The Tenant shall enforce the obligations of the undertenant in any
underlease and exercise its rights under the agreements made between
it and the undertenant for the purposes of section 19(1A) of the
Landlord and Tenant Act 1927.
13.5.3 The Tenant shall not vary the terms of, nor, without the consent of
the Landlord, such consent not to be unreasonably withheld, accept
or agree to accept a surrender of, nor forfeit any underlease.
13.6 CHARGING
The Tenant shall not charge or agree to charge any part of the
Premises (as distinct from the whole) and shall not charge or
agree to charge the whole of the Premises without the consent of
the Landlord, such consent not to be unreasonably withheld or
delayed.
23
<PAGE>
13.7 DECLARATIONS OF TRUST
The Tenant shall not execute any declaration of trust of the whole or
any part of its interest in the Premises or this Lease.
13.8 GROUP SHARING OF OCCUPATION
Nothing in this Clause 13 shall prevent the Tenant from sharing
occupation of the Premises with another member of the same group of
companies (as defined by section 42 of the Landlord and Tenant Act 1954
(as amended)) if and so long as that other member remains a member of
the group and no relationship of landlord and tenant subsists between
the Tenant and that other member. The Tenant must keep the Landlord
informed of the identity of all occupiers and of the basis of their
occupation of the Premises.
13.9 REGISTRATION OF DEALINGS
Within one month of any dealing with, or devolution of, the Premises or
this Lease or of any interest created out of them or it, the Tenant
shall give the Landlord written notice of that dealing or devolution
together with a certified copy of any document effecting or evidencing
the dealing or devolution (and a certified copy for any superior
landlord) and shall pay the Landlord a reasonable registration fee of
not less than twenty five pounds (L25) and the registration fee of any
superior landlord.
14. LEGAL REQUIREMENTS
14.1 LEGISLATION AND PLANNING
The Tenant shall:
14.1.1 comply with all legislation affecting the Premises, their use and
occupation and the health and safety of persons working at or
visiting the Premises, whether the legislation requires the owner,
landlord, tenant or occupier to comply;
14.1.2 give the Landlord written notice of any defect in the Premises which
may make the Landlord liable to do, or not to do, any act to comply
with the duty of care imposed by the Defective Premises Act 1972,
and shall display any notices at the Premises needed to enable the
Landlord to comply with the Defective Premises Act 1972;
14.1.3 at the end of the Term pay the Landlord a fair proportion,
determined by the Landlord, of any compensation which the Tenant has
received or which is receivable by the Tenant because of any
restriction placed on the use of the Premises under any legislation.
14.1.4 The Tenant shall comply in all respects with the provisions and
requirements of the Planning Acts any agreement entered into
pursuant to the Planning Acts and all Planning Permissions so far as
the same relate to or affect:
24
<PAGE>
(a) any operations or works at any time carried out on or at the
Premises; or
(b) the use of the Premises for any purpose.
14.1.5 The Tenant shall not make any application for Planning Permission or
commence any project of Development without the prior consent of the
Landlord, such consent not to be unreasonably withheld or delayed in
respect of any matter for which the Landlord's approval or consent
may not be unreasonably withheld under this Lease.
14.1.6 Having obtained the Landlord's consent pursuant to Clause 14.1.5 the
Tenant shall not commence any operations, works, acts or things as
aforesaid on the Premises, any change of use of the Premises for any
purpose or any other form of Development without having obtained all
such Planning Permissions and served all such notices as may be
required therefor under the Planning Acts.
14.1.7 Subject only to any statutory direction to the contrary the Tenant
shall discharge any tax, charge, fee or levy imposed at any time
under the Planning Acts in respect of the carrying out of any
operations, works, acts or things as aforesaid on the Premises,
their use or any other form of Development.
14.1.8 Notwithstanding any consent or approval which may be given by the
Landlord under this Lease, the Tenant shall not carry out or make
any alterations or addition to the Premises or change their use
before:
(a) all necessary notices under the Planning Acts have been
served; and
(b) all such notices and any Planning Permission required have
been produced to and approved by the Landlord (such approval
not to be unreasonably withheld or delayed).
14.1.9 Without prejudice to the Landlord's rights to grant or refuse
approval the Landlord may refuse to approve any Planning Permission
because, inter alia, anything contained in or omitted from it or its
period is, would be or be likely to be prejudicial to the interest
of the Landlord or the Head Landlord in the Premises or any
neighbouring premises whether during or following the termination of
the Term.
14.1.10 Unless the Landlord otherwise directs, the Tenant shall carry out
and complete before the expiration or sooner determination of the
Term any works required to be carried out to the Premises as a
condition of any Planning Permission applied for and implemented by
or on behalf of the Tenant or any lawful sub-tenant or their
respective predecessors in title before such expiration or
determination.
14.1.11 The Tenant shall produce to the Landlord or the Landlord's surveyor
and to the Head Landlord and the Head Landlord's surveyor all such
plans, documents and other evidence as the Landlord or Head Landlord
may reasonably require in order
25
<PAGE>
to be satisfied that the provisions of this Clause 14 have been
complied with in all respects.
14.1.12 The Tenant shall not enter into any planning agreement or planning
obligations pursuant to Section 106 of the Town and Country Planning
Act 1990.
14.2 NOTICES RELATING TO THE PREMISES
14.2.1 The Tenant shall give the Landlord a copy of any notice received by
the Tenant, relating to the Premises or any occupier of them, or to
the Landlord's or the Head Landlord interest in them, upon having
received it and take any steps which the Landlord may reasonably
require in connection with such notice.
14.2.2 The Tenant shall not give any notice or counternotice under the
Party Wall etc. Act 1996 without the consent of the Landlord.
15. LANDLORD'S COVENANT FOR QUIET ENJOYMENT
The Landlord agrees with the Tenant that the Tenant may hold and use
the Premises during the Term without any interruption (except as
authorised by this Lease) by the Landlord or by any person lawfully
claiming through, under or in trust for the Landlord.
16. LIMITS ON LANDLORD'S LIABILITY
16.1 In this clause "INTEREST" means the whole of the interest in the
reversion immediately expectant on the end of the Term.
16.2 The obligations on the Landlord contained or implied in this Lease, to
the extent that they relate to any time after a person has parted with
its Interest, will not be binding on or enforceable against a person
after that person has parted with its Interest.
16.3 To the extent that a person retains any liability for such obligations
after having parted with its Interest, the Tenant agrees to release
that person from such liability within four weeks of being notified in
writing that such person has parted with its Interest and the release
will have effect from the date of the disposal of the Interest.
16.4 If the Landlord makes a request under section 6 or 7 of the Landlord
and Tenant (Covenants) Act 1995 (Release from covenants on assignment
of the reversion), the Tenant agrees not to unreasonably withhold or
delay the release requested.
17. FORFEITURE
17.1 LANDLORD'S RIGHT OF RE-ENTRY
If any event set out in Clause 17.2 occurs, the Landlord may forfeit
this Lease and re-enter the Premises. The Term will then end, but
without prejudice to any claim which the Landlord may have against the
Tenant or a Guarantor for any failure to comply with the terms of this
Lease.
26
<PAGE>
17.2 EVENTS GIVING RISE TO THE LANDLORD'S RIGHT OF RE-ENTRY
17.2.1 The Rent or any other sum payable under this Lease has not been paid
three weeks after it became due, whether formally demanded or not or
the Tenant or any Guarantor has failed to comply with the terms of
this Lease.
17.2.2 A receiver (including a receiver under section 101 of the Law of
Property Act 1925) or manager or administrative receiver of the
Tenant's property (or part of it) is appointed.
17.2.3 The Tenant, if an individual (or if more than one individual then
any one of them) is the subject of a bankruptcy petition or of an
application for an interim order under Part VIII of the Insolvency
Act 1986, or enters into any composition moratorium or other
arrangement with its creditors, whether or not in connection with
any proceeding under the Insolvency Act 1986.
17.2.4 In relation to a Tenant which is a body corporate (or if more than
one body corporate then any one of them):
(a) a proposal for a voluntary arrangement is made under Part I of
the Insolvency Act 1986 or the directors of the Tenant resolve
to make such a proposal;
(b) a petition for an administration order is presented under Part
II of the Insolvency Act 1986 or the directors of the Tenant
resolve to present such a petition;
(c) a resolution for its voluntary winding up is passed under Part
IV of the Insolvency Act 1986 or a meeting of its creditors is
called for the purpose of considering that it be wound up
voluntarily (in either case, other than a voluntary winding up
whilst solvent for the purposes of and followed by a solvent
reconstruction or amalgamation);
(d) a petition for its winding up is presented to the court under
Part IV or by virtue of Part V of the Insolvency Act 1986 or a
resolution is passed that it be wound up by the court; or
(e) an application is made under section 425 of the Companies Act
1985 or a proposal is made which could result in such an
application.
17.2.5 The Tenant which is a body corporate (or if more than one body
corporate then any of them):
(a) enters or proposes to enter into any arrangement, moratorium
or composition (other than any referred to above) with its
creditors; or
(b) is dissolved, or is removed from the Register of Companies, or
ceases to exist (whether or not capable of reinstatement or
reconstitution).
27
<PAGE>
18. MISCELLANEOUS
18.1 NOTICES
18.1.1 Any notice or demand in connection with this Lease may be sent by
first class post and if so sent from within the UK and properly
stamped and correctly addressed will be conclusively treated as
having been delivered two working days after posting.
18.1.2 The Tenant shall give the Landlord verbal notice of any matter
affecting the Premises where emergency action is needed as well as
written notice.
18.2 LANDLORD'S RIGHTS TO REMEDY DEFAULT BY THE TENANT
If the Tenant fails to comply with any of its obligations in this
Lease, the Landlord may give the Tenant written notice of that failure,
and the Tenant shall remedy the failure within the time reasonably
specified by the Landlord. If the Tenant fails to do this, the Landlord
may enter the Premises and carry out any works or do anything else
which may be needed to remedy the Tenant's failure to comply with its
obligations under this Lease, and any costs properly incurred by the
Landlord will be a debt due from the Tenant payable on demand and may
be recovered by the Landlord as if it were additional rent.
18.3 TENANT TO PROVIDE INFORMATION
The Tenant shall give the Landlord any information or documents which
the Landlord reasonably requests to show that the Tenant is complying
with its obligations in this Lease and shall give the Landlord written
notice of any matter in connection with the Premises which may make the
Landlord liable to any third party.
18.4 TENANT'S INDEMNITY
The Tenant agrees to indemnify the Landlord at all times (both during
and after the Term) against all liabilities, damages, costs and
expenses arising directly or indirectly from the existence, state of
repair or use of the Premises or any breach of any of the Tenant's
obligations in this Lease, or any act or omission of the Tenant.
18.5 TENANT'S ACKNOWLEDGEMENT
The Tenant acknowledges that it has not entered into this Lease in
reliance on any representation made by or on behalf of the Landlord.
18.6 QUALIFICATION OF LANDLORD'S LIABILITY
The Landlord will not be liable to the Tenant or any other person for:
18.6.1 any interruption to the supply of Utilities to the Premises;
28
<PAGE>
18.6.2 any accidental damage to the Premises or to any property of the
Tenant or any other occupier of the Premises or their employees,
agents or independent contractors; or
18.6.3 for any failure to perform any obligation in this Lease, unless the
Tenant has given the Landlord written notice of the facts giving
rise to that failure and allowed the Landlord a reasonable time to
remedy the matter.
18.7 REMOVAL OF GOODS AFTER END OF TERM
The Tenant shall remove all its fittings, goods and other possessions
at the end of the Term and the Landlord may dispose of any such items
left at the Premises more than two weeks after the end of the Term as
the Landlord sees fit.
18.8 JURISDICTION
This Lease shall be governed by and construed in accordance with the
laws of England and Wales and the Guarantor agrees that [the office of
the Tenant's solicitors] is an effective address for service of any
notices to be served upon it under this Lease and any proceedings
commenced in the English Courts.
18.9 REPLACEMENT GUARANTEE
The Tenant must give notice to the Landlord within seven days after
becoming aware of a Guarantor Replacement Event. If the Landlord
responds by giving notice requiring a replacement the Tenant must
within 28 days of receiving such notice from the Landlord procure some
other person reasonably acceptable to the Landlord to execute a
replacement guarantee in the form executed by the Guarantor in respect
of whom the Guarantor Replacement Event has occurred.
19. GUARANTOR'S COVENANT
The Guarantor covenants with the Landlord:
19.1 That the Tenant will pay the rents reserved by and comply with all
the Tenant's obligations in this Lease. In any case of default by
the Tenant the Guarantor will pay the rents and comply with those
obligations, and will on demand make good to the Landlord on a
full indemnity basis all losses, costs, damages and expenses
caused to the Landlord by any such default. Neither any
forbearance of the Landlord in seeking payment of any due rents or
in enforcing any obligations, nor any compromise or arrangement
made by the Landlord with the Tenant, shall discharge or abate the
Guarantor's liability.
19.2 That it will join in and be bound by any variation of this Lease
made by the Landlord and Tenant at any time before an assignment
of this Lease by the Tenant and (subject to section 18 of the
Landlord and Tenant (Covenants) Act 1995) that no variation of
this Lease after such an assignment will discharge the Guarantor's
liability under this Clause 19.
29
<PAGE>
19.3 In the event that the Tenant surrenders part of the Premises the
liability of the Guarantor shall continue in respect of that part
of the Premises not so surrendered after making any necessary
apportionments under section 140 of the Law of Property Act 1925.
19.4 That if the Tenant (or any one or more of them if there is more
than one) becomes bankrupt or enters into liquidation and the
trustee in bankruptcy or liquidator disclaims this Lease or this
Lease becomes forfeit and if within three calendar months of such
disclaimer or forfeiture the Landlord serves notice in writing on
the Guarantor requiring that Clause 19.5 be implemented, then the
Guarantor shall comply with Clause 19.5.
19.5 The Guarantor shall, at its own cost, accept (and execute and
deliver a counterpart of) a lease of the Premises for a term
commencing on and taking effect on the date of (as appropriate)
the disclaimer or forfeiture of this Lease and expiring on the
date when this Lease would have expired by effluxion of time had
it not been disclaimed or forfeit, at the same rents and on the
same covenants and conditions in this Lease.
19.6 As between the Landlord and the Guarantor the guarantor shall be
deemed to be a principal debtor and accordingly the Landlord shall
be entitled to forebear or refuse to accept payment of the Rent or
to enforce performance or observance of the Tenant's covenants or
to give time to the tenant without discharging the Guarantor
wholly or partly or in any way diminishing his liability under
this covenant.
20. TENANT'S OPTION TO DETERMINE
20.1 In this clause "TERMINATION DATE" means 29 September 2004.
20.2 Subject to the pre-conditions in Clause 203 being satisfied on the
Termination Date, and subject to Clause 20.4 the Tenant, may determine
the Term on the Termination Date by giving the Landlord not less than 6
months' written notice. Term will then determine on the Termination
Date, but without prejudice to any rights of either party against the
other for any antecedent breach of its obligations under this Lease.
20.3 The pre-conditions are that:
20.3.1 the Premises are in a state materially consistent with the proper
performance of the Tenant's obligations contained in Clause 11;
20.3.2 vacant possession of the whole of the Premises is given to the
Landlord; and
20.3.3 all Rent Additional Rent and other sums due under this Lease up to
the Termination Date have been paid in full.
20.4 The Landlord may waive any of the pre-conditions set out in Clause 20.3
at any time before the Termination Date by written notice to the
Tenant.
30
<PAGE>
20.5 The Tenant will cancel any registration it has made in connection with
this clause within 5 Working Days of the Termination Date.
20.6 Time will be of the essence for the purposes of this clause.
21. LANDLORD'S OPTION TO DETERMINE
21.1 In this clause "TERMINATION DATE" means 29 September 2004.
21.2 The Landlord may determine this Lease on the Termination Date by giving
the Tenant not less than 6 months' written notice. The Term will then
determine on the Termination Date and this Lease will come to an end,
but without prejudice to any rights of either party against the other
for any antecedent breach of its obligations under this Lease.
21.3 On the termination of the Term the Tenant will give the Landlord vacant
possession of the whole of the Premises.
22. EXCLUSION OF THE 1954 ACT
Having been authorised to do so by an order of the Reading County Court,
under section 38(4) of the Landlord and Tenant Act 1954 made on _________
1999 (No. ______), the Landlord and the Tenant agree that the provisions
of sections 24 to 28 (inclusive) of the Landlord and Tenant Act 1954 shall
not apply to the tenancy created by this deed.
23. NEW OR OLD LEASE
This Lease is not a new tenancy for the purposes of section 1 of the
Landlord and Tenant (Covenants) Act 1995.
IN WITNESS of which this deed has been duly executed and is delivered on the
date written at the beginning of this deed.
31
<PAGE>
Signed as a deed by )
VASTERA LIMITED acting by a director )
and its secretary or two directors: )
Director /s/ Philip J. Balsamo
-----------------------
Director/Secretary /s/ John Thurlow
----------------
Signed as a deed by )
VASTERA INC )
acting by: )
/s/ Philip J. Balsamo
------------------------------------
/s/ Arjun Rishi
------------------------------------
32
<PAGE>
Private & Confidential
DATED
------------------------------------------------------------------------------
CANADIAN & PORTLAND ESTATES (1)
PLC
AXON SOLUTIONS LIMITED (2)
AND
VASTERA LIMITED (3)
------------------------------------------------------------------------------
COUNTERPART
LICENCE
TO UNDERLET
188 HIGH STREET, EGHAM, SURREY
------------------------------------------------------------------------------
<PAGE>
THIS LICENCE is made the ________________________________________ 1999
BETWEEN:
(1) CANADIAN & PORTLAND ESTATES LIMITED whose registered office is at Allan
House 10 John Princes Street London W1M 0AH ("THE LANDLORD")
(2) AXON SOLUTIONS LIMITED whose registered office is at 90a Queens Road
Twickenham Middlesex TW1 4ET ("THE TENANT")
(3) VASTERA LIMITED whose registered office is at Amtest House, 75 - 79
Guildford Street. Chertsey, Surrey KT19 9AS ("THE UNDERTENANT")
WHEREAS:
1 INTERPRETATION
1.1 In this Licence unless the context otherwise requires:
(a) words importing any gender include every gender
(b) words importing the singular number only include the plural number and
vice versa
(c) words importing persons include firms companies and corporations and
vice versa
(d) where any obligation is undertaken by two or more persons jointly
those persons shall be jointly and severally liable in respect of that
obligation
(e) the expressions "the Landlord" "the Tenant" and "the Undertenant"
shall include their respective successors in title
(f) references to numbered clauses are to numbered clauses in this Licence
1.2 In this Licence the following expressions shall unless the context
otherwise requires have the following meanings:
(a) "LEASE" means the lease of the Premises briefly described in the
schedule and includes any document supplemental to or associated with
the Lease
(b) "PREMISES" means the premises briefly described in the schedule
(c) "UNDERLEASE" means an underlease of the Premises for a term from and
including September 1999 and expiring on 22 April 2013 to be granted
without taking any fine or premium at a yearly rent of L159,000
exclusive of all outgoings and an insurance rent equal to the rent
reserved by Clause 2.2 (b) of the Lease
2 GRANT OF LICENCE
1
<PAGE>
2.1 The Landlord grants to the Tenant its licence to grant the Underlease to
the Undertenant
3 TENANT'S COVENANTS
3.1 The Tenant will not at any time either expressly or by implication waive
any of the covenants and conditions to be contained in the Underlease
3.2 On any breach of any of the covenants and conditions to be contained in the
Underlease the Tenant shall enforce such covenants and conditions
4 UNDERTENANT'S COVENANT
4.1 The Undertenant covenants with the Landlord from the date the Underlease is
granted to it until the date it assigns the Underlease with the consent of
the Tenant as required by the Underlease to pay the rents reserved by it in
accordance with the provisions of the Underlease and to observe and perform
all of the other lessees covenants and the conditions contained in the
Underlease and also to observe and perform the lessee's covenants in the
Lease (except the covenant to pay rent)
5 CONDITIONS
5.1 This Licence is conditional upon:
(a) the Underlease being granted within two months after the date of this
Licence (as to which time shall be of the essence) and
(b) the Underlease being in a form previously approved in writing by the
Landlord (such approval not to be unreasonably withheld or delayed)
5.2 If either or both of the conditions set out in Clause 5.1 are not satisfied
this Licence shall be void
6 CONTINUING EFFECT OF THE LEASE
6.1 This Licence is restricted to the grant of the Underlease upon (inter alia)
the terms authorised by this Licence and all the covenants and conditions
in the Lease shall remain in full force and effect
6.2 Notwithstanding this Licence or the Underlease the Tenant shall remain
fully liable to the Landlord under the lessee's covenants and conditions in
the Lease
6.3 The condition for re-entry contained in the Lease shall be exercisable by
the Landlord on the breach of the covenant by the Tenant in this Licence
7 LANDLORD'S COSTS
7.1 The Tenant shall pay the legal costs and expenses incurred by the Landlord
in connection with the granting of this Licence up to a maximum of L500
plus VAT
2
<PAGE>
8 PROPER LAW
8.1 This Licence shall be governed by English Law
IN WITNESS whereof this Licence has been executed by the relevant parties in the
appropriate manner on the date first before written
SCHEDULE 1
-----------
PARTICULARS OF THE LEASE
------------------------
DATE PARTIES THE PREMISES TERM
---- ------- ------------ ----
24.12.1997 The Landlord (1) 188 High Street, From 24.12.1997 to
The Tenant (2) Egham, Surrey 23.4.2013
3
<PAGE>
EXECUTED as a DEED by )
AXON SOLUTIONS LIMITED )
acting by: )
Director /s/ D.M. Kirkwood
----------------------------------
Director/Secretary /s/ Stuart Hamilton
----------------------
EXECUTED as a DEED by )
VASTERA LIMITED )
acting by: )
/s/ Philip J. Balsamo
-----------------------------------------------
/s/ John Thurlow
-----------------------------------------------
4
<PAGE>
Registered on
under section 395, Companies Act 1985
DATED
--------------------------------------------------------------------------------
AXON SOLUTIONS LIMITED
AND
VASTERA LIMITED
AND
VASTERA INC
--------------------------------------------------------------------------------
COUNTERPART
RENT DEPOSIT DEED
supplemental to
Underlease dated _________ 1999 and made
between Axon Solutions Limited (1)
Vastera Limited (2) and Vastera Inc (3)
relating to
188 High Street, Egham, Surrey
--------------------------------------------------------------------------------
Nabarro Nathanson
The Anchorage
34 Bridge Street
Reading RG1 2LU
Tel: 0118 950 4700
<PAGE>
DEED
DATED
PARTIES
(1) AXON SOLUTIONS LIMITED (a company incorporated and registered in England
and Wales with company registration number 2976395) whose registered
office is at Rathgar House, 188 High Street, Egham, Surrey, TW20 9ED (the
"LANDLORD");
(2) VASTERA LIMITED (a company incorporated and registered in England and
Wales with company registration number 203633) whose registered office is
at Amtest House, 75-79 Guildford Street, Chertsey, Surrey, KT19 9AS (the
"TENANT"); and
(3) VASTERA INC (a company incorporated and registered in the state of
Delaware under company number 54-161653) the registered office of which is
at 45025 Aviation Drive Suite 200, Dunes, VA 20166-7554, USA and whose
address for service in England and Wales is at Rathgar House, 188 High
Street, Egham, Surrey, TW20 9ED (the "GUARANTOR").
IT IS AGREED AS FOLLOWS:
I. DEFINITIONS AND INTERPRETATION
1.1 In this Deed, unless the context otherwise requires, the following words
and phrases have the following meanings:
"ACCOUNT"
means a separate interest-bearing account to be opened in the name of
the Landlord with a bank or institution of the Landlord's choosing;
"DEPOSIT BALANCE"
means the sum from time to time standing to the credit of the Account
including any accrued interest which has not been paid to the Tenant;
"INITIAL DEPOSIT"
means the sum of L233,531.25;
"LEASE"
means the underlease brief particulars of which are contained in Part I
of the Schedule and includes any document supplemental to the Lease
whether or not expressed to be so;
"PROPERTY"
means that property brief particulars of which are contained in Part II
of the Schedule;
1
<PAGE>
"RENT DEPOSIT"
means an amount equal to 15 months' rent plus a sum equivalent to value
added tax thereon from time to time first reserved by the Lease;
"TERM"
means the term granted by the Lease and includes any extension or
continuation whether by statute or at common law.
1.2 The clause headings in this Deed (except the definitions) are for ease of
reference and are not to be used for the purposes of construing this Deed.
1.3 References in this Deed to clauses or Schedules will mean the clauses of
or the Schedules attached to this Deed.
1.4 Obligations undertaken by more than one person are joint and several
obligations.
1.5 Words importing persons include firms companies and corporations and vice
versa.
1.6 Words importing one gender shall be construed as importing any other
gender.
1.7 Words importing the singular shall be construed as importing the plural
and vice versa.
1.8 The expression the "Landlord" includes (subject to Clause 7) any person
entitled at any time to the reversion to the Lease.
2. RECITALS
2.1 It was a term of the negotiations for the Lease that the Tenant should
lodge with the Landlord the Rent Deposit.
2.2 On or before the date of this Deed the Tenant has lodged with the Landlord
the Initial Deposit.
2.3 The Landlord agrees to hold the Rent Deposit under the terms of this Deed.
3. SUPPLEMENTAL DEED
This Deed is supplemental to the Lease.
4. DEPOSIT
4.1 The Landlord acknowledges receipt from the Tenant of the Initial Deposit.
4.2 The Landlord will place the Initial Deposit (together with all money
received subsequently under the terms of this Deed as part of the Rent
Deposit) in the Account and (subject to the provisions of Clause 5) will
hold the Deposit Balance throughout the Term as security for:
4.2.1 payment by the Tenant on the due date of all of the rents payable under
the Lease;
2
<PAGE>
4.2.2 payment by the Tenant of any other sums which may become due to the
Landlord from time to time under the Lease; and
4.2.3 compliance by the Tenant with the covenants and conditions contained in
the Lease and this Deed.
4.3 The Tenant will at all times maintain the Deposit Balance in a sum
equivalent to the Rent Deposit.
4.4 If as a result of any withdrawal by the Landlord or for any other reason
the Deposit Balance is at any time less than the Rent Deposit, the Tenant
will within seven days after written notice from the Landlord (and
notwithstanding any dispute of any kind whatsoever as to any withdrawal
from the Account by the Landlord) deposit with the Landlord a sum equal to
the difference between the Deposit Balance and the Rent Deposit.
4.5 Immediately following any increase of rent payable under the Lease, the
Tenant will deposit with the Landlord a sum equal to the difference
between the Deposit Balance and the Rent Deposit.
5. WITHDRAWALS
The Landlord may from time to time make withdrawals from the Account of
sums sufficient to compensate the Landlord for any non-payment, delay in
payment or damage suffered by or debt due to the Landlord arising from any
of the following events:
5.1 any failure by the Tenant during the Term to pay, within seven days after
the due date, any of the rents or other sums payable under the Lease or
any mesne profits for which the Tenant may be liable in respect of the
Property;
5.2 any default by the Tenant in complying with any covenant or condition
contained in the Lease relating to any other matter; or
5.3 forfeiture or disclaimer of the Lease or the Tenant ceasing to exist.
Provided that the Landlord first gives at least 7 days' notice in writing
of its intention to make any such withdrawal.
6. INTEREST
The Landlord will arrange for payments of all interest earned in respect of
the Account to be made (net of any tax required to be deducted by the
Landlord before the Landlord accounts to the Tenant) to the Tenant within
twenty-eight days after that interest has been credited to the Account at
the address stated in this Deed or at such other address as the Tenant may
from time to time notify to the Landlord in writing.
7. TRANSFER OF REVERSION
3
<PAGE>
If the Landlord transfers the reversion immediately expectant upon the
determination of the Term the Landlord will:
7.1 transfer the Deposit Balance to the transferee of the reversion and assign
the benefit and the burden of this Deed to that transferee;
7.2 procure that the transferee of the reversion, no later than the date of
the transfer, covenants in a deed with the Tenant to observe and perform
the obligations of the Landlord under this Deed; and
7.3 on delivery of the deed of covenant referred to in Clause 7.2 to the
Tenant the Landlord (being the transferor) will cease to be liable for any
default in compliance with any provision contained in this Deed.
8. RELEASE OF RENT DEPOSIT
If the Tenant has fully complied with all the material covenants and
conditions contained in the Lease and in this Deed then the Landlord will
repay the Deposit Balance to the Tenant (or as the Tenant may direct) 10
working days after the earliest to occur of the following:
8.1 the expiration or sooner determination of the Term;
8.2 receipt by the Landlord of audited accounts showing that the Tenant's net
profits after tax during each of the three immediately preceding
accounting periods (none of which is to be a period of more than one year)
are in excess of three times the annual rent first reserved by the Lease
at the date of receipt of those accounts and that such net profits after
tax have increased in each successive year referred to in such accounts;
8.3 the Landlord receiving notice of an assignment in accordance with the
Lease following a permitted assignment of the Lease by the Tenant.
9. CHARGE
The Tenant with full title guarantee charges the Account and the Deposit
Balance as security for the payment or reimbursement (as the case may be)
to the Landlord of the sums referred to in Clause 5.
10. GENERAL PROVISIONS
10.1 The Deposit Balance will at all times be and remain the property of the
Tenant subject to the Charge contained in Clause 9.
10.2 The Landlord's rights of re-entry contained in the Lease will be
exercisable on any default by the Tenant in compliance with any provision
contained in this Deed as well as on the happening of any of the events
mentioned in the Lease.
10.3 The provisions of this Deed will not in any way lessen or affect the
Tenant's or any guarantor's obligations under the Lease or lessen the
Landlord's rights to take any action
4
<PAGE>
or proceedings under the Lease in respect of any default by the Tenant in
complying with any of the covenants or conditions contained in the Lease.
11. GUARANTOR
11.1 The Guarantor consents to the provisions of this Deed and confirms that
the Guarantor's obligations contained in the Lease as supplemented by this
Deed remain in full force and effect.
11.2 The Guarantor covenants with the Landlord as a primary obligation that the
Tenant will observe and perform all the obligations on the part of the
Tenant contained in this Deed and in case of default by the Tenant the
Guarantor will pay and make good to the Landlord on demand all losses
damages costs and expenses arising from such default and will itself
observe and perform all the obligations on the part of the Tenant
contained in this Deed and agrees that no time or indulgence granted to
the Tenant by the Landlord nor any variation of the terms of the Lease or
this Deed nor any other thing by virtue of which but for this provision
the Guarantor would have been released will in any way release the
obligations of the Guarantor to the Landlord under this clause or the
Lease.
12. JURISDICTION
The proper law of this deed and the jurisdiction to which the parties are
subject is that of England and Wales and the Guarantor agrees that Rathgar
House, 18$ High Street, Egham, Surrey, TW20 9ED is an effective address
for service of any notices to be served upon it under this agreement and
any proceedings commenced in the English courts.
13. EXECUTION
IN WITNESS of which the Landlord the Tenant and the Guarantor have
executed this document as a Deed which is intended to be and is delivered
the day and year first before written but not before.
5
<PAGE>
SCHEDULE
PART I
(Lease)
Date:
Parties: Axon Solutions Limited (1) Vastera Limited (2) and [Vastera Inc ] (3)
Term: A term from and including __________ and expiring on 22 April 2013
PART II
(Property)
Property situate at and known as 188 High Street, Egham, Surrey as the same is
more particularly described and comprised in the Lease.
PART III
(Deposited Sum)
L233,531.25
6
<PAGE>
Signed as a deed by )
VASTERA LIMITED )
acting by a director and its secretary)
or two directors: )
Director /s/ Philip J. Balsamo
-----------------------
Director/Secretary /s/ John Thurlow
-----------
Signed as a deed by )
VASTERA INC )
acting by: )
/s/ Philip J. Balsamo
------------------------------------
/s/ Arjun Rishi
------------------------------------