Exhibit 10.17






Exhibit 10.17




SUBLEASE AGREEMENT




THIS SUBLEASE AGREEMENT (the “Sublease”) is made and entered into as of March 7, 2008, by
and among PROQUEST LLC, a Delaware limited liability company (“Sublandlord”), with an address of
7200 Wisconsin Avenue, Suite 601, Bethesda, Maryland 20814 , and VOYAGER LEARNING COMPANY, a
Delaware corporation (“Subtenant”), with an address of 789 East Eisenhower Parkway, Ann Arbor,
Michigan 48108 (“Subtenant”).



RECITALS




A. Sublandlord is now the tenant under that certain Lease dated November 10, 2004, between
Transwestern Great Lakes, L.P., a Delaware limited partnership (“Owner”), as landlord, and
ProQuest Company (now known as Voyager Learning Company, and being Subtenant hereunder), as tenant,
as amended by that certain First Amendment to Lease dated November 16, 2005, that certain
Commencement Letter dated April 21, 2006, that certain Second Amendment to Lease and Assignment of
Lease dated as of March 7, 2008 (collectively and as so amended and assigned, the “Prime
Lease”), with respect to and covering 111,748 rentable square feet of office space and 19,213
rentable square feet of lower level space in and comprising in its entirety the office building
located at 789 East Eisenhower Parkway, Ann Arbor, Michigan (the “Leased Premises”). The
Prime Lease is attached hereto as Exhibit A and the terms of the Prime Lease are
incorporated herein by this reference.



B. By virtue of the aforementioned Second Amendment to Lease and Assignment of Lease, the Prime
Lease and the tenant’s interest therein have been assigned to and assumed by Sublandlord, and
Subtenant has been absolutely released by Owner and Sublandlord from any and all liability with
respect to and under the Prime Lease.



C. As of the Effective Date (as hereinafter defined), Sublandlord wishes to sublease to the
Subtenant that portion of the Leased Premises consisting of (i) approximately 12,620 rentable
square feet of office space located within the so-called Northeast Quadrant of the third floor of
the Leased Premises (the “Part A Space”), and approximately 3,060 rentable square feet of
office space and including conference room located within the so-called Northwest Quadrant of the
first floor of the Leased Premises (the “Part B Space”), all as depicted on Exhibit
B attached hereto (the “Subleased Premises”), and Subtenant wishes to sublease from
Sublandlord the Subleased Premises, all on the terms and conditions set forth herein.



AGREEMENT




NOW, THEREFORE, in consideration of the foregoing recitals, the mutual covenants and agreements
contained herein, and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:



I. SUBLEASE.



1. Subject to the terms hereof and except as set forth herein, as of the
Effective Date (as hereinafter defined), the Sublandlord hereby subleases to the
Subtenant and the Subtenant hereby subleases from the Sublandlord the Subleased
Premises, together with the non-exclusive right to utilize any and all interior
corridors, restrooms, stairways, elevators and other common areas (interior and
exterior) as may be necessary or useful in accessing and fully utilizing the
Subleased Premises, and together with the parking rights identified in Section
1.03, below. This Sublease grants to Subtenant the right to occupy the Subleased
Premsies and otherwise enjoy certain rights and privileges currently enjoyed by
Sublandlord under the Lease, as expressly provided herein.



2. Term. The term (the “Term”) of this Sublease shall
commence at 12:00 a.m. on March 7, 2008 (the “Effective Date”).
This Sublease shall thereafter continue to apply to the Part A Space until: (i)
June 30, 2008, after which time it shall be automatically extended on a
month-to-month basis, at the same Rent, unless terminated by Subtenant pursuant to
not less than 30 days written notice to Sublandlord, but in no event beyond
December 31, 2008, (ii) the earlier termination of the Prime Lease for any reason,
or (iii) the date this Sublease is otherwise
terminated pursuant to the terms hereof (the “Part A Termination Date”).
This Sublease shall thereafter continue to apply to the Part B Space until: (i)
December 31, 2008, after which time it shall be automatically extended on a
semiannual basis (i.e., in 6 month increments), at the same Rent, unless terminated
by Subtenant pursuant to written notice to Sublandlord given not less than 30 days
prior to the expiration of December 31, 2008 or the expiration of any semiannual
extension, as applicable, but in no event shall the Term extend beyond December 31,
2010, (ii) the earlier termination of the Prime Lease for any reason, or (iii) the
date this Sublease is otherwise terminated pursuant to the terms hereof (the
“Part B Termination Date”).


 


 









 





Section 1.03 Parking. Throughout the Term, Subtenant shall be entitled to utilize
the parking areas otherwise available to Sublandlord under the Prime Lease; provided,
however, that Subtenant’s usage of the reserved underground parking area shall be limited to
the existing eleven (11) carded-entry spaces previously utilized by Subtenant pursuant to
the Prime Lease (i.e., prior to the Second Amendment to Lease and Assignment of Lease)
through the Part A Termination Date, and thereafter limited to three (3) carded-entry spots
through the Part B Termination Date; provided further, however, that in the event
Sublandlord elects to convert (and actually converts) to rentable area and thereby
eliminates the underground parking area in whole or in part, Subtenant’s underground parking
spaces shall be reduced proportionately with the reduction in underground parking spaces
allotted to Sublandlord .



Section 1.04 Termination. Subtenant shall on the Part A Termination Date and/or the
Part B Termination Date, as the case may be, surrender and deliver up Part A Space or the
Part B Space, as applicable, to the possession and use of Sublandlord without delay and in
good order, condition and repair, and use of Sublandlord without delay and in good order,
condition and repair, except for reasonable wear and tear to the Subleased Premises, free
and clear of all lettings and occupancies and free and clear of all liens and encumbrances
other then those, if any, currently existing or created or suffered by Sublandlord or Owner.



II. BASE RENT/ADDITIONAL RENT 



1. During the Term of this Sublease, Subtenant shall pay to Sublandlord as
monthly rent for the Subleased Premises an amount equal to one-twelfth
(1/12th) of the product of (i) the total rentable square feet within the
Subleased Premises as it exists from time to time hereunder, times (ii) an amount
equal to Five Dollars ($5.00) less than applicable “Annual Base Rent Per RSF” for
the period in question as set forth in the Commencement Letter dated April 21, 2006
(a copy of which is included within Exhibit A) (the “Monthly Base
Rent”). Tenant shall also pay “Additional Rent” (calculated and defined
as set forth in the Prime Lease) with respect to and based on the rentable square
feet from time to time within the Subleased Premises relative to the aggregate
rentable square feet within the Leased Premises (as defined above) (Monthly Base
Rent, together with Additional Rent, are referred to collectively as
“Rent”). So long as Sublandlord is not in default under this Sublease,
Subtenant shall have no rights of offset, abatement or deduction for any reason,
and shall have no right to prior notice or demand, with respect to payments of Rent
to Sublandlord. Rent for any period during the Term hereof which is less than one
month shall be prorated for such month. Sublandlord and Subtenant agree to prorate
any accrued and unpaid expenses and any prepaid expenses, based on the number of
days Sublandlord and Subtenant, respectively, have a right to occupy the Subleased
Premises. Subtenant does not assume any liability or obligation of Sublandlord
arising under the Prime Lease prior to the Effective Date.



2. Subtenant shall make all payments of Rent or other amounts due
hereunder directly to the Sublandlord and not the Owner under the Prime Lease or
its permitted successors and assigns.



III. PRIME LEASE 



1. This Sublease is, and shall be at all times, subject and subordinate to
the Prime Lease and to matters to which the Prime Lease is subject and subordinate.
Except as otherwise provided herein, the parties agree that all the non-economic
terms, covenants and conditions contained in the Prime
Lease shall be applicable to this Sublease and solely with respect and limited to
the Subleased Premises, except to the extent inconsistent with the terms and
conditions in this Sublease (in which event the terms and conditions of this
Sublease shall control); and provided, however, Sublandlord shall not amend or agree
to any amendment of the Prime Lease that would expand the obligations or

liabilities of Subtenant hereunder or diminish Subtenant’s rights pursuant to this
Sublease. Nothing contained herein shall be deemed to impose any obligation,
responsibility or duty upon the Subtenant other than with respect to the Subleased
Premises. The parties further agree that, except as otherwise provided herein, the
Subtenant shall have each and every of the rights and privileges of the Sublandlord
under the Lease.


 


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2. This Sublease is not an assignment of the Prime Lease by Sublandlord to
Subtenant, and Subtenant does not assume and shall not be liable to any person or
entity for obligations arising under the Prime Lease with respect to the periods
prior to the Commencement Date or after the Termination Date.



IV. USE AND QUIET ENJOYMENT; UTILITIES AND SERVICES 



1. Use of the Subleased Premises shall be restricted to any lawful purpose
permitted by the Prime Lease, and no other purpose.



2. Sublandlord represents and warrants that it has full right and
authority to enter into this Sublease and that Subtenant, while paying the Rent and
performing its other covenants and agreements herein set forth, shall quietly have,
hold and enjoy the Subleased Premises for the Term hereof without interference from
Sublandlord, subject to the exceptions, reservations, conditions and other terms
and provisions of this Sublease.



3. Subtenant shall permit Sublandlord and its authorized representatives
to enter the Subleased Premises during daytime business hours, upon not less than
24 hours’ notice, except in the case of an emergency, during which time Sublandlord
shall be given access to the Subleased Premises at all times without notice, for
any purpose permitted to the Owner under the Prime Lease.



4. Sublandlord shall provide to Subtenant all utilities and other services
included in or under the Prime Lease, and the relative rights and obligations of
the parties for such utilities and services shall be determined by reference to the
Prime Lease, treating the Sublandlord as “Landlord” and the Subtenant as “Tenant”
for purposes thereof.



5. Those additional services listed and described on Exhibit C, attached
hereto, shall be made available by Sublandlord to Subtenant upon request and
subject to compensation on the basis set forth in Exhibit C.



V. EVENTS OF DEFAULT AND REMEDIES 



1. The following events shall be deemed to be events of default (each an
“Event of Default”) by Subtenant under this Sublease:



a. Subtenant shall fail to make any payment of Rent
required to be made by Subtenant hereunder, as and when due, in accordance
with the terms of this Sublease or the Prime Lease and such cure period
under the Prime Lease less two (2) days shall have elapsed;



b. Subtenant shall fail to comply with its obligations
hereunder which are expressly incorporated from the Prime Lease under
Article III hereof (other than with respect to the payment of Rent) and the
time within which such failure is required to be cured thereunder shall
have elapsed;



c. Subtenant shall fail to comply with any term, provision
or covenant of this Sublease, and shall not cure such failure within thirty
(30) days of receiving notice of such failure from Sublandlord (provided,
however, if the default is not by its nature capable of cure within thirty
(30) days, it shall not be an Event of Default if and so long as Subtenant
commences a cure within thirty (30) days and thereafter diligently
prosecutes the cure to completion); or


 


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Notwithstanding the foregoing, in the event Sublandlord shall receive from the Owner
any notice of default under the Prime Lease or notice of any event, which, with the
giving of notice or lapse of time, or both, would constitute such a default, (i)
Sublandlord shall promptly and without delay furnish notice to this effect to
Subtenant if Sublandlord receives such notice or (ii) Subtenant shall promptly and
without delay furnish notice to this effect to Sublandlord. In the event Sublandlord
shall fail to so notify Subtenant, Sublandlord shall not be entitled to declare an
Event of Default under this Sublease with respect to the event or circumstance in
question, unless the notice furnished by the Owner to the Sublandlord in accordance
with the terms of the Lease was also furnished to the Subtenant or was furnished to
the Subtenant in lieu of Sublandlord. Notwithstanding any provision of this Sublease
to the contrary, Sublandlord shall not be entitled to declare an Event of Default
under this Sublease as a result of any default under the Prime Lease if such default
has been timely cured in accordance with the terms of the Prime Lease.



2. Upon the occurrence of any Event of Default hereunder, Sublandlord
shall have the option, in addition to all other remedies set forth herein and in
the Prime Lease, to pursue any one or more of the following remedies without any
notice or demand whatsoever:



a. Sublandlord may (i) terminate this Sublease in its
entirety, or (ii) terminate Subtenant’s right to possession in its
entirety, without terminating the Sublease.



b. Upon the occurrence of any event discussed in Section
5.01, following an Event of Default, Subtenant shall surrender possession
and vacate the Subleased Premises immediately, and deliver possession
thereof to Sublandlord, and Subtenant hereby grants to Sublandlord full and
free license to enter into and upon the Subleased Premises in such event
with process of law and to repossess Sublandlord of the Subleased Premises
as of Sublandlord’s former estate and to expel or remove Subtenant and any
others who may be occupying or within the Subleased Premises and to remove
any and all property therefrom.



c. Upon termination of this Sublease in its entirety,
following an Event of Default, Sublandlord shall be entitled to recover as
damages, all Rent that is derived from the terminated Sublease and other
sums due and payable by Subtenant on the date of termination, plus the sum
of (i) an amount equal to the then present value of the Rent that is
derived from the terminated Sublease and other sums provided herein to be
paid by Subtenant for the residue of the Term hereof, less the present
value of the fair rental value of the Subleased Premises for such residue
(taking into account the expense necessary to obtain a replacement
subtenant or subtenants, including reasonable expenses hereinafter
described in subparagraph (d) relating to recovery of the Subleased
Premises, preparation for reletting and for reletting itself), and (ii) the
reasonable cost of performing any other covenants which would have
otherwise been performed by Subtenant under the terms hereof. In such
event, Sublandlord shall take commercially reasonable actions to mitigate
its damages and resublet the Subleased Premises.



d. Upon any termination of Subtenant’s right to possession
only in its entirety, without termination of the Sublease following an
Event of Default, Sublandlord may, at Sublandlord’s option, enter into the
Subleased Premises, remove Subtenant’s signs and other evidences of
tenancy, and take and hold possession thereof as provided in subparagraph
(b) above, without such entry and possession terminating this Sublease or
releasing Subtenant, in whole or in part, from any obligation, including
Subtenant’s obligation to pay the Rent for the full Term. In any such case
Subtenant shall pay forthwith to Sublandlord, if Sublandlord so elects, a
sum equal to the entire amount of the Rent under this Sublease for the
Subleased Premises for the residue of the Term plus any other sums provided
herein to be paid by Subtenant for the remainder of the Term. In such
event, Sublandlord shall take commercially reasonable actions to mitigate
its damages and resublet the Subleased Premises. In connection therewith,
and to the extent permitted by the Prime Lease, Sublandlord may resublet the
Subleased Premises for such rent and upon such terms as Sublandlord in its
reasonable discretion shall determine (including the right to resublet the
Subleased Premises for a greater or lesser term than that remaining under
this Sublease, the right to resublet the Subleased Premises as a part of a
larger area, and the right to change the character or use made of the
Subleased Premises) and Sublandlord shall not be required to accept any
subtenant offered by Subtenant or to observe any instructions given by
Subtenant about such reletting. If the consideration collected by
Sublandlord upon any such resubletting plus any sums previously collected
from Subtenant are not sufficient to pay the full amount of all Rent and
other sums reserved in this Sublease for the remaining Term hereof, together
with the reasonable costs of repairs, alterations, additions, redecorating,
and Sublandlord’s expenses of resubletting and the collection of the rent
accruing therefrom (including attorneys’ fees and brokers’ commissions),
Subtenant shall pay to Sublandlord the amount of such deficiency upon demand
and Subtenant agrees that Sublandlord may file suit to recover any sums
falling due under this Section.


 


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e. Sublandlord may, at Sublandlord’s option, enter into
and upon the Subleased Premises, with process of law, to maintain, repair
or replace anything for which Subtenant is responsible under this Sublease
and perform such obligations on Subtenant’s behalf and put the Subleased
Premises in good order, condition and repair. Subtenant agrees to reimburse
Sublandlord, on demand, for any reasonable expenses which Sublandlord may
incur in thus effecting compliance with Subtenant’s obligations under this
Sublease.



f. Pursuit of any of the foregoing remedies shall not
preclude the pursuit of any of the other remedies provided herein, or any
other remedies provided by law (all such remedies being cumulative), nor
shall pursuit of any remedy provided herein or in any of the aforementioned
documents constitute a forfeiture or waiver of any Rent or other payments
due to Sublandlord hereunder or of any damages accruing to Sublandlord by
reason of the violation of any of the terms, provisions and covenants
herein contained. No waiver by Sublandlord or Subtenant of any violation or
breach of any of the terms, provisions and covenants herein contained shall
be deemed or construed to constitute a waiver of any other violation or
breach of any of the terms, provisions and covenants herein contained.
Sublandlord’s acceptance of the payment of rental or other payments
hereunder after the occurrence of a default shall not be construed as a
waiver of such default, unless Sublandlord so notifies Subtenant in
writing. Forbearance by Sublandlord or Subtenant in enforcing one or more
of the remedies provided herein, in the Lease or in any documents executed
in connection with the aforementioned documents, upon a default shall not
be deemed or construed to constitute a waiver of such default or of
Sublandlord’s right to enforce any such remedies with respect to such
default or any subsequent default.



VI. MISCELLANEOUS 



1. Notices of Events Affecting the Subleased Premises. Sublandlord
shall promptly forward to Subtenant, and Subtenant shall promptly forward to
Sublandlord, any notice or other communication received by Sublandlord or
Subtenant, as the case may be, from the Owner or others relating to Subtenant’s use
of, operation of or interest in Subtenant’s use of the Subleased Premises.



2. Notices. Any notice, request, instruction or other document
given hereunder by either party to the other shall be in writing and delivered
personally, by mail (certified mail, postage prepaid, return receipt requested,
such mailed notice to be effective three (3) days after deposit) by overnight
courier (to be effective the business day following deposit), by facsimile
transmission (to be effective when receipt acknowledged unless sent after 5:00 p.m.
on any business day or on the weekend, in which event they will be deemed received
on the next business day), at their respective addresses first set forth above or
at such other address as either party may by like notice designate to the other in
writing.



3. Entire Agreement. All prior understandings and agreements
between the parties are merged with this Sublease and the Lease, together with the
exhibits and schedules hereto and thereto, all of which are incorporated herein by
reference, which together fully and completely set forth the understanding of the
parties. There have been no representations or statements, oral or written, that
have been relied on by any party hereto, except those expressly set forth in this
Sublease or the Lease.



4. Successors and Assigns. The terms, covenants and conditions
contained herein shall be binding upon and inure to the benefit of the heirs,
successors, executors, administrators, and assigns of the parties hereto. The term
“Sublandlord” in this Sublease shall include Sublandlord, its successors, and
assigns. The term “Subtenant” shall include Subtenant and its successors and
assigns.



5. Sublease and Assignment. Subtenant may not make any assignment
of this Sublease or any right hereunder, nor enter into any sublease of all or any
part of the Subleased Premises, without (i) all consents required under the Prime
Lease, and (ii) the prior written consent of Sublandlord in each instance. In all
instances, Subtenant shall remain primarily liable for payment of rent required
hereunder and for the performance of all other terms of this Sublease required to
be performed by Subtenant. If Subtenant assigns this Sublease, Sublandlord shall
give Subtenant a copy of all notices Sublandlord gives to the assignee. Subtenant
shall be entitled to cure any defaults by any assignee during the same period
allowed to the assignee for curing such default.


 


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6. Third Party Beneficiaries. This Sublease shall inure to the
benefit of Sublandlord, Owner and Subtenant. Nothing contained herein shall create,
or be construed to create, any right in any person or entity not a party hereto
(except the Owner).



7. Recordation. Subtenant may record a Memorandum of Sublease
regarding this Sublease.



8. Only Landlord and Tenant. Nothing contained in this Sublease
shall be deemed, or be construed by the parties hereto, or by any third person, to
create the relationship of principal and agent or partnership or of joint venture
or of any association between Sublandlord and Subtenant, and no provision contained
in this Sublease, or any acts of the parties hereto, shall be deemed to create any
relationship between Sublandlord and Subtenant, other than the relationship of
landlord and tenant.



9. Brokers. Each of the parties hereto (a) represents and warrants
to the other that it has not dealt with any broker or finder in connection with
this Sublease; and (b) indemnifies and holds the other harmless from any and all
losses, liability, costs or expenses (including attorneys’ fees), incurred as a
result of an alleged breach of the foregoing warranty.



10. Time. Time is of the essence of this Sublease and all of its
provisions.



11. Governing Law and Litigation. This Sublease is made in and
shall in all respects be governed by, and construed and enforced in accordance
with, the internal laws of the State in which the Subleased Premises is located
without regard to conflicts of law principles. For all purposes in respect to this
Sublease, both parties agree to submit to the jurisdiction of the state and federal
courts located in Washtenaw County, Michigan. In the event either party brings an
action against the other to enforce any condition or covenant of this Sublease, the
prevailing party in such action shall be entitled to recover the court costs and
reasonable attorneys’ fees in the judgment rendered through such action, including
on appeal and in a bankruptcy proceeding.



12. Captions and Headings. The captions and headings of Articles
and Sections of this Sublease have been intended solely for convenience of
reference and shall not control or affect the meaning or construction of any of the
provisions of this Sublease.



13. Severability. If any provision of this Sublease is or becomes
invalid, illegal or unenforceable in any respect, it shall be ineffective to the
extent of such invalidity, illegality or unenforceability, and the validity,
legality and enforceability of the remaining provisions contained herein shall not
be affected thereby.



14. Remedies Cumulative. No remedy set forth in this Sublease or
otherwise conferred upon or reserved to any party shall be considered exclusive of
any other remedy available hereunder, at law or in equity to any party, but the
same shall be distinct, separate and cumulative and may be exercised from time to
time as often as occasion may arise or as may be deemed expedient.



15. Amendment. This Sublease shall not be amended, supplemented or
modified except by an instrument in writing signed and delivered by each of the
parties hereto.



16. Waiver. No failure or delay on the part of any party hereto in
the exercise of any power or right, and no course of dealing between Sublandlord
and Subtenant shall operate as a waiver of such power or right, nor shall any
single or partial exercise of any power or right preclude other or further exercise
thereof or the exercise of any other power or right. No waiver by a party hereto of
any condition or of any breach of any term contained in this Sublease shall be
effective unless in writing, and no waiver in any one or more instances shall be
deemed to be a further or continuing waiver of any such condition or breach in
other instances or a waiver of any other condition or breach of any other term.



17. Counterparts. This Sublease may be executed simultaneously in
one or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one instrument.


 


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Section 6.18 Effectiveness. This Sublease shall not be effective until executed by
Sublandlord, Subtenant and Owner. In the event Owner fails to execute this Sublease within ten (10)
days after execution by Subtenant and Sublandlord, this Sublease shall be automatically null and
void and of no further force or effect.



IN WITNESS WHEREOF, the parties hereto have caused this Sublease to be duly executed on their
respective behalf, by their respective officers thereunder duly authorized, all as of the date and
year first above written.



	 	 	 	 	 
	 	SUBLANDLORD:



PROQUEST LLC, a Delaware limited liability
company

 	 
	 	By:  	/s/ Larisa Avner Trainor
 	 
	 	 	Name:  	Larisa Avner Trainor  	 
	 	 	Title:  	VP & Asst. Sec 	 
	 
	 	SUBTENANT:




VOYAGER LEARNING COMPANY, a Delaware corporation

 	 
	 	By:  	/s/ Todd W. Buchardt
 	 
	 	 	Name:  	Todd W. Buchardt  	 
	 	 	Title:  	General Counsel 	 



ACKNOWLEDGMENT AND CONSENT





Transwestern Great Lakes, L.P., as the Owner/Landlord under the Prime Lease, hereby acknowledges
receipt of an executed copy of the foregoing Sublease Agreement and consents to the terms thereof.



	 	 	 	 	 	 	 	 	 
	 	 	TRANSWESTERN GREAT LAKES, L.P., a Delaware
limited partnership	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	Transwestern Great Lakes GP, L.L.C., a
Maryland limited liability company, its general
partner	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	Transwestern Investment Company, L.L.C., its
authorized agent	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Scott A. Tausk	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Scott A. Tausk	 	 
	 

	 	 	 	Title:
	 	Managing Director	 	 






 


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EXHIBIT A




PRIME LEASE





 


 











 






OFFICE LEASE




BETWEEN




TRANSWESTERN GREAT LAKES, L.P., AS LANDLORD




AND




PROQUEST COMPANY, AS TENANT




777 EISENHOWER PLAZA—PHASE II




789 EAST EISENHOWER PARKWAY




ANN ARBOR, MICHIGAN



 


 









 





TABLE OF CONTENTS 




	 	 	 	 	 
	 	 	PAGE	 
	 
	 	 	 	 
	1. DEFINITIONS
	 	 	l	 
	 
	 	 	 	 
	2. LEASE GRANT/POSSESSION
	 	 	9	 
	 
	 	 	 	 
	3. USE
	 	 	9	 
	 
	 	 	 	 
	4. RENT
	 	 	10	 
	 
	 	 	 	 
	5. REPRESENTATIONS AND WARRANTIES OF LANDLORD; CONDITIONS TO
EFFECTIVENESS OF LEASE
	 	 	10	 
	 
	 	 	 	 
	6. SERVICES TO BE FURNISHED BY LANDLORD
	 	 	12	 
	 
	 	 	 	 
	7. LEASEHOLD IMPROVEMENTS; TENANT’S PROPERTY
	 	 	13	 
	 
	 	 	 	 
	8. SIGNAGE
	 	 	13	 
	 
	 	 	 	 
	9. MAINTENANCE, REPAIRS AND ALTERATIONS
	 	 	14	 
	 
	 	 	 	 
	10. USE OF ELECTRICAL SERVICES BY TENANT
	 	 	15	 
	 
	 	 	 	 
	11. ASSIGNMENT AND SUBLETTING
	 	 	15	 
	 
	 	 	 	 
	12. CONSTRUCTION LIENS
	 	 	17	 
	 
	 	 	 	 
	13. INSURANCE
	 	 	17	 
	 
	 	 	 	 
	14. INDEMNITY
	 	 	19	 
	 
	 	 	 	 
	15. DAMAGES FROM CERTAIN CAUSES
	 	 	19	 
	 
	 	 	 	 
	16. CASUALTY DAMAGE
	 	 	20	 
	 
	 	 	 	 
	17. CONDEMNATION
	 	 	20	 
	 
	 	 	 	 
	18. EVENTS OF DEFAULT
	 	 	21	 
	 
	 	 	 	 
	19. REMEDIES
	 	 	21	 
	 
	 	 	 	 
	20. NO WAIVER
	 	 	24	 
	 
	 	 	 	 
	21. PEACEFUL ENJOYMENT
	 	 	24	 
	 
	 	 	 	 
	22. SUBSTITUTION
	 	 	24	 






 


 









 





	 	 	 	 	 
	 	 	PAGE	 
	 
	 	 	 	 
	23. HOLDING OVER
	 	 	25	 
	 
	 	 	 	 
	24. SUBORDINATION TO MORTGAGE; ESTOPPEL CERTIFICATE
	 	 	25	 
	 
	 	 	 	 
	25. NOTICE
	 	 	25	 
	 
	 	 	 	 
	26. SURRENDER OF PREMISES
	 	 	26	 
	 
	 	 	 	 
	27. RIGHTS RESERVED TO LANDLORD
	 	 	26	 
	 
	 	 	 	 
	28. ROOF USAGE
	 	 	26	 
	 
	 	 	 	 
	29. ON-SITE AMENITIES
	 	 	27	 
	 
	 	 	 	 
	30. MISCELLANEOUS
	 	 	27	 
	 
	 	 	 	 
	31. NO OFFER
	 	 	29	 
	 
	 	 	 	 
	32. ENTIRE AGREEMENT
	 	 	29	 
	 
	 	 	 	 
	33. LIMITATION OF LIABILITY
	 	 	29	 
	 
	 	 	 	 






EXHIBIT A-1-OUTLINE AND LOCATION OF PREMISES


EXHIBIT A-2-LEGAL DESCRIPTION OF PHASE II LAND


EXHIBIT A-3-LEGAL DESCRIPTION OF PHASE I LAND


EXHIBIT B-RULES AND REGULATIONS


EXHIBIT C-PAYMENT OF BASIC COSTS


EXHIBIT D-WORK LETTER


EXHIBIT E-ADDITIONAL PROVISIONS


EXHIBIT F-COMMENCEMENT LETTER



 


ii









 





OFFICE LEASE 




This Office Lease (the “Lease”) is made and entered into on the 10th day of
November, 2004, between TRANSWESTERN GREAT LAKES, L.P., a Delaware limited partnership
(“Landlord”), and PROQUEST COMPANY, a Delaware corporation (“Tenant”).




W I T N E S S E T H:




1. Definitions. The following are definitions of some of the defined terms used in
this Lease. The definition of other defined terms are found throughout this Lease.





A. “Additional Rent” shall mean Tenant’s Pro Rata Share of Basic Costs (hereinafter
defined) and Tenant’s Pro Rata Share of Taxes (hereinafter defined) and any other sums
(exclusive of Base Rent) that are required to be paid to Landlord by Tenant hereunder, which
sums are deemed to be Additional Rent under this Lease.





B. “Base Rent”: Base Rent shall be paid in equal monthly installments of the Annual Base
Rent identified below, in accordance with and subject to Section 4 of this Lease according to
the following schedule (the Periods running from and after the Commencement Date):




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Monthly	 
	 	 	Annual Base Rent	 	 	Annual Base	 	 	Installments	 
	Period	 	Per R.S.F.*	 	 	Rent*	 	 	of Base Rent*	 
	Months 1-6
	 	$	0.00	 	 	$	0.00	 	 	$	0.00	 
	Months 7-12
	 	$	18.75	 	 	$	2,069,418.75	 	 	$	172,451.56	 
	Months 13-24
	 	$	19.13	 	 	$	2,110,807.13	 	 	$	175,900.59	 
	Months 25-36
	 	$	19.51	 	 	$	2,153,023.27	 	 	$	179,418.61	 
	Months 37-48
	 	$	19.90	 	 	$	2,196,083.73	 	 	$	183,006.98	 
	Months 49-60
	 	$	20.30	 	 	$	2,240,005.41	 	 	$	186,667.12	 
	Months 61-72
	 	$	20.70	 	 	$	2,284,805.52	 	 	$	190,400.46	 
	Months 73-84
	 	$	21.12	 	 	$	2,330,501.63	 	 	$	194,208.47	 
	Months 85-96
	 	$	21.54	 	 	$	2,377,111.66	 	 	$	198,092.64	 
	Months 97-108
	 	$	21.97	 	 	$	2,424,653.89	 	 	$	202,054.49	 
	Months 109-120
	 	$	22.41	 	 	$	2,473,146.97	 	 	$	206,095.58	 
	Months 121-132
	 	$	22.86	 	 	$	2,522,609.91	 	 	$	210,217.49	 
	Months 133-144
	 	$	23.31	 	 	$	2,573,062.11	 	 	$	214,421.84	 
	Months 145-156
	 	$	23.78	 	 	$	2,624,523.35	 	 	$	218,710.28	 
	Months 157-168
	 	$	24.26	 	 	$	2,677,013.82	 	 	$	223,084.48	 
	Months 169-180
	 	$	24.74	 	 	$	2,730,554.09	 	 	$	227,546.17	 





	 	 	 
	*	 	The Base Rent payable under this Lease is premised on Landlord’s
assumption that the Phase II Project Costs shall be at least
$20,000,000.00. Landlord assumes all risk that the Phase II Project
Costs may exceed that amount. If the Phase II Project Costs are less
than $20,000,000.00, the foregoing schedule of Base Rent is subject to
adjustment in accordance with Paragraph 12 of the Work Letter.





 


 









 









Notwithstanding anything to the contrary contained in this Lease, Tenant shall be
entitled to free Base Rent during the first six (6) months of the Lease Term (the “Free Rent
Period”); provided however Tenant shall remain responsible for Additional Rent and electricity
service to the Premises during the Free Rent Period.




C. “Basic Costs” is defined in Exhibit C attached hereto.





D. “Broker” shall mean Transwestern Commercial Services, an affiliate of Landlord.
Landlord shall be solely responsible for any and all commissions and/or fees of any nature
payable to Broker in connection with this Lease and the Phase II Lease.





E. “Building” shall mean the new office building to be constructed by Landlord on the
Phase II Land, and having a street address of 789 Eisenhower Parkway, Ann Arbor, Michigan.





F. “Business Day(s)” shall mean Mondays through Fridays exclusive of the normal business
holidays.





G. “City” shall mean the City of Ann Arbor, Michigan.





H. “Commencement Date” shall mean the date which is thirty (30) days following the date
on which the Premises have been (i) Substantially Completed in accordance with the Work
Letter, and (ii) delivered to Tenant for Tenant’s installation of Tenant’s Property (including
without limitation installation of fixtures, equipment and furniture); provided, however, that
if Tenant Delays (as defined in the Work Letter) occur, the Commencement Date shall mean the
date which is thirty (30) days following the date on which the Premises would have been
Substantially Completed and delivered to the Premises had such Tenant Delay(s) not have
occurred.


 


2









 







I. “Common Areas” shall mean shall mean all areas within the Building and the Property
that are available for the common use of tenants of the Building and that are not leased or
held for the exclusive use of Tenant or other tenants of the Building, including, but not
limited to, parking areas, the Parking Deck, driveways, sidewalks, loading areas, access
roads, corridors, elevators, stairwells, landscaping and planted areas. Tenant shall have the
nonexclusive right to use the Common Areas for the purposes intended, subject to such
reasonable rules and regulations as Landlord may establish and uniformly impose upon all
Building tenants from time to time. Landlord shall not permanently alter or change any or all
of the size, location, nature or use of any of the Common Areas if such change might have a
material adverse affect on Tenant’s use, occupancy or enjoyment of the Premises or access to
the Premises, the Building and/or the Property.





J. “Default Rate” shall mean the lower of (i) six percent (6%) in excess of the Prime
Rate published from time to time by the Wall Street Journal (or any successor to such index),
or (ii) the highest rate of interest from time-to-time permitted under applicable federal and
state law.





K. “Early Termination” shall mean and refer to Tenant’s one-time right to terminate the
Lease Term at the end of the eleventh (11th) Lease Year, provided that Tenant shall
have no uncured Event of Default at the time of its election. Tenant may (but shall not be
required to) exercise its right to Early Termination by giving notice of such exercise to
Landlord not less than eighteen (18) months, and paying the Termination Fee not less than
thirty (30) days, prior to the expiration of the eleventh (11th) Lease Year.





L. “Early Termination Fee” shall mean the sum of (i) an amount equal to $35.71 per
rentable square foot in the Premises, plus (ii) an amount equal to $8.80 per square foot in
the Lower Level Space usable by Tenant as permitted by the City, payable by Tenant to Landlord
as full and complete consideration for the Early Termination of this Lease.





M. “Expiration Date” shall mean the last day of the Lease Term (subject to Early
Termination and including any Extension Term(s)). Notwithstanding the foregoing, if the
Expiration Date, as determined herein, does not occur on the last day of a calendar month, the
Lease Term and the last Lease Year thereof shall be extended by the number of days necessary
to cause the Expiration Date to occur on the last day of the last calendar month of the Lease
Term. Tenant shall pay Base Rent and Additional Rent for such additional days at the same rate
payable for the portion of the last calendar month immediately preceding such extension. Upon
the determination of the actual Commencement Date and the actual Expiration Date, Landlord and
Tenant shall each execute and deliver a Commencement Letter in the form of Exhibit F attached
hereto.




N. “Extension Term” is defined in Paragraph 2 of Exhibit E.


 


3









 






O. “Lease Term” shall commence on the Commencement Date, and shall expire (unless
extended pursuant to Paragraph 2 of Exhibit E) one hundred eighty (180) months thereafter,
subject to Tenant’s termination rights under Section 5 of this Lease.





P. “Lease Year” shall mean each twelve (12) month period commencing on the Commencement
Date, and on each anniversary of the Commencement Date (or portion thereof ending on the
Expiration Date).





Q. “Leasehold Improvements” shall mean all fixtures, equipment, improvements and
appurtenances attached to, or built into, the Premises at the commencement of or during the
Lease Term, whether or not by, or at the expense of, Tenant.





R. “Lower Level Space” shall mean that certain space consisting of approximately 15,000
usable square feet in the lower level of the Building, which shall be made available to
Tenant, if and to the extent permitted, for Tenant’s exclusive use for the purposes of (i) a
cafeteria, (ii) meeting space, (iii) laboratory space, and (iv) exercise facility. The terms
and conditions for the lease of the Lower Level Space are more fully described in Paragraph 3
of Exhibit E.





S. “MEDC” shall mean the Michigan Economic Development Corporation.





T. “Normal Business Hours” for the Building shall mean 8:00 a.m. to 6:00 p.m. Mondays
through Fridays, and 8:00 a.m. to 1:00 p.m. on Saturdays, exclusive of holidays.





U. “Notice Addresses” shall mean the following addresses for Tenant and Landlord,
respectively:





Tenant:





Before the Commencement Date of the Phase I Lease:





ProQuest Company

300 North Zeeb Road

Ann Arbor, Michigan 48103

Attn: Chief Financial Officer





With copy to:





James C. Adams, Esq.

Dykema Gossett PLLC

400 Renaissance Center

Detroit, Michigan 48243


 


4









 






After the Commencement Date of the Phase I Lease:





ProQuest Company

777 Eisenhower Parkway

Ann Arbor, Michigan 48108

Attn: Chief Financial Officer





With a copy of any default notices to:





James C. Adams, Esq.

Dykema Gossett PLLC

400 Renaissance Center

Detroit, Michigan 48243





Landlord:





Transwestern Commercial Services

777 Eisenhower Parkway

Ann Arbor, Michigan 48108

Attn: Property Manager





with a copy to:





Transwestern Investment Company

150 North Wacker Drive, Suite 800

Chicago, IL 60606

Attn: Owner’s Representative





and to:





Drane, Freyer and Lapins

150 North Wacker Drive, 8th Floor

Chicago, IL 60606

Attn: Wendy Freyer, Esq.





Payments of Rent only shall be made payable to the order of Transwestern 789 Eisenhower Plaza,
at the following address:





Transwestern Commercial Services

777 Eisenhower Parkway

Ann Arbor, Michigan 48108

Attn: Property Manager





or such other name and address as Landlord shall, from time to time, designate.





V. “Parking Deck” shall mean and refer to the approximately 700 space parking garage to
be constructed by Landlord on the Phase II Land in accordance with the
Work Letter, for Tenant’s non-exclusive use under this Lease, except as otherwise provided
herein.


 


5









 






W. “Permitted Use” shall mean general office use, any other office use related to or a
part of Tenant’s business, and any related and incidental uses thereto.





X. “Phase I Building” means the existing office building commonly known as 777 Eisenhower
Parkway, Ann Arbor, Michigan, and located on the Phase I Land, with office space to be leased
to Tenant pursuant to the Phase I Lease.





Y. “Phase I Land” means that certain parcel of land owned by Landlord, adjacent to the
Property and more particularly described on Exhibit A-3 to this Lease.





Z. “Phase I Lease” means the Lease of even date herewith between Landlord and Tenant,
covering the Phase I Building and the Phase I Land.





AA. “Phase II Land” means that certain parcel of land owned by Landlord, upon which the
Building and Parking Deck will be constructed, and more particularly described on Exhibit A-2
to this Lease.





BB. “Phase II Project Costs” shall mean hard and soft costs actually incurred by Landlord
in the site development of the Phase II Land and construction of the Building (for purposes
hereof being only the “Base Building Work” as set forth in the Work Letter, and exclusive of
the “Landlord’s Work” as defined in the Work Letter), Parking Deck, water detention areas, and
connector to the Phase I Building, and in particular shall include, but shall not be limited
to, the following:




	 	(1)	 	Construction costs pursuant to approved contracts, including labor and
materials, and including fees to third party, non-affiliated
construction manager/contractors;

	 
	 	(2)	 	Site improvement work to the Phase II Land, and the Phase I Land to
the extent necessary for the development;

	 
	 	(3)	 	All modifications and/or additions to surface parking on the Phase I Land and the Phase II Land;

	 
	 	(4)	 	All soft costs including, but not limited to, construction period
interest and other financing costs, construction period taxes, legal
or accounting fees, leasing commissions, and any development fee to
Landlord or any affiliate of Landlord;

	 
	 	(5)	 	Third party, non-affiliated architects’ fees, space planners’s fees and engineers’ fees;

	 
	 	(6)	 	On-site utility installation costs, and off-site utility installation
costs to the extent necessary to the construction and operation of the
Building; and

	 
	 	(7)	 	Fees and costs for building permits and governmental approvals.





 


6









 











The Development of the Phase II Land and construction of the Building and Parking Deck shall
be undertaken and performed by Landlord on an “open book” basis, and Tenant, its architects,
attorneys, accountants and other consultants shall have full and unimpeded rights (with
cooperation and assistance by Landlord) to review and audit Landlord’s Phase II Project Costs
and back-up documentation therefor at all times.





CC. “Premises” shall mean all the interior space within the Building and outlined on
Exhibit A-1 to this Lease, including without limitation all lobby areas, all corridors and
restroom facilities located within the Building, and including the exclusive use of the 37 car
enclosed parking area within the lower level of the Building.





DD. “Property” shall mean the Building, the Parking Deck, the Phase II Land and all other
improvements located on such land. The parties acknowledge that Landlord also owns the Phase I
Land (defined above), upon which the Phase I Building is located and which the parties
anticipate Tenant will lease pursuant to the Phase I Lease.





EE. “Rentable Area in the Building” shall mean 110,369 square feet. Tenant and Landlord
shall each have the right, within 90 days after the Commencement Date, to have the rentable
square footage of the Building measured by a licensed architect, and verified by the other
party, which measurement shall be made pursuant to BOMA standards, provided however, the
vertical penetration on the second floor of the Building for the purpose of creating a
two-story atrium lobby shall not be subtracted from the calculation of the rentable square
footage of the Building. In addition, the calculation of the rentable square footage of the
Building shall not include the Lower Level Space, but shall be comprised of the main floors of
the Building and Common Areas in the Building. The measurement as determined by such
architect, and verified by the other party, shall be substituted for the foregoing amount, and
those items under this Lease measured with reference to the Rentable Area in the Building,
including the Tenant’s Pro-Rata Share, shall be adjusted accordingly.





FF. “Rentable Area in the Premises” shall mean 110,369 square feet. Tenant and Landlord
shall each have the right, within 90 days after the Commencement Date, to have the rentable
square footage of the Premises measured by a licensed architect, and verified by the other
party, which measurement shall be made pursuant to BOMA standards, provided however, the
vertical penetration on the second floor of the Building for the purpose of creating a
two-story atrium lobby shall not be subtracted from the calculation of the rentable square
footage of the Premises. In addition, the calculation of the rentable square footage of the
Premises shall not include the Lower Level Space, but shall be comprised of the main floors of
the Building and Common Areas in the Building. If the rentable square footage of the Premises
as so measured and verified differs from the foregoing amounts, the measurement as determined
by such architect shall be substituted for the foregoing amount(s), and the Base Rent (and any
other charge under this Lease measured on a square footage basis or dependent upon the square
footage of the Premises) and Tenant’s Pro Rata Share shall be appropriately adjusted.



 


7









 






GG. “State” shall mean the State of Michigan.





HH. “Substantial Completion” or “Substantially Complete” shall mean (except as otherwise
provided in the Work Letter):





(i) completion by Landlord of all construction and other work required of Landlord
pursuant to this Lease or other relevant documents between Landlord and Tenant (as to this
Lease and the Work Letter) so that (A) Tenant can use the Premises, Parking Deck and all
Common Areas for its intended purposes without material interference to Tenant conducting its
ordinary business activities, and (B) the only incomplete items are minor or insubstantial
details of construction, mechanical adjustments, or finishing touches like touch-up plastering
or painting;





(ii) the Building, Parking Deck, Premises and all operating and mechanical systems
thereof are in good condition and working order;





(iii) Landlord securing a temporary or permanent certificate of occupancy from the local
municipality if required for lawful occupancy by the municipality;





(iv) Tenant, its employees, agents, and invitees, have reasonable access to the Building
and Premises through the lobby, entranceways, elevators, loading docks, sidings and hallways;





(v) all tenant improvements, decorations, fixtures, and equipment, if any, to be
installed by Landlord pursuant to the Work Letter are installed and in good operating order to
Tenant’s reasonable satisfaction; and





(vi) the Premises (or the relevant portions thereof being delivered) are broom clean.





II. “Target Commencement Date” shall mean February 1, 2006.




JJ. “Taxes” is defined in Exhibit C attached hereto.




KK. “Tenant’s Pro Rata Share” shall mean One Hundred Percent (100%).




LL. “Tenant’s Property” shall mean all unattached and moveable partitions, trade
fixtures, moveable equipment or furniture located in the Premises and acquired by or for the
account of Tenant, without expense to Landlord, which can be removed without structural damage
to the Building or Premises, and all personalty brought into the Premises by Tenant.




MM. “Work Letter” is attached as Exhibit D and incorporated by reference herein.


 


8









 






2. Lease Grant/Possession.





A. Subject to and upon the terms herein set forth, Landlord leases to Tenant and Tenant
leases from Landlord the Premises, together with the right, in common with others, to use the
Common Areas. Subject in all respects to the obligations of Landlord under the Work Letter and
as otherwise set forth in this Lease, by taking possession of the Premises, Tenant is deemed
to have accepted the Premises and agreed that the Premises is in good order and satisfactory
condition.





B. The Lease Term shall commence on the Commencement Date and shall end on the Expiration
Date, subject to (i) Tenant’s exercise of one or more Extension Term, (ii) Tenant’s rights to
terminate as set forth in Paragraph 5, below; (iii) Tenant’s one-time right of Early
Termination, exercisable at the time and as set forth in the definition of Early Termination,
above, and subject to Tenant’s payment of the Early Termination Fee; and (iv) the rights of
the parties to termination of this Lease for any other reason set forth herein.





C. Landlord shall deliver possession of the Premises to Tenant no later than upon
Substantial Completion (and earlier if practicable) of Landlord’s Work pursuant to the Work
Letter, for the purpose of performing any improvements therein or installing Tenant’s
Property, and such possession shall be subject to all of the terms and conditions of this
Lease, except that Tenant shall not be required to pay Base Rent or Additional Rent with
respect to the period of time prior to the Commencement Date during which Tenant
performs such work. Tenant shall, however, be liable for the reasonable cost of
electricity provided to Tenant during the period of Tenant’s possession prior to the
Commencement Date.




3. Use. The Premises shall be used for the Permitted Use and for no other purpose.
Tenant agrees not to use or permit the use of the Premises for any purpose which is illegal or
dangerous, which creates a nuisance or which would increase the cost of insurance coverage with
respect to the Building. Tenant will conduct its business and control its agents, servants,
employees, customers, licensees, and invitees in such a manner as not to interfere with or disturb
other tenants or Landlord in the management of the Property. Tenant will maintain the Premises in a
clean and healthful condition, and comply with all laws, ordinances, orders, rules and regulations
of any governmental entity with reference to the use, condition, configuration or occupancy of the
Premises. Tenant shall not, and shall not allow its employees, agents, contractors or invitees, to
bring into the Building or the Premises any dangerous or hazardous materials, except for customary
office and cleaning supplies, provided Tenant uses, stores and disposes of the same in compliance
with all applicable law. Tenant, at its expense, will comply with the rules and regulations of the
Building attached hereto as Exhibit B and such other rules and regulations adopted and altered by
Landlord and uniformly applied to all tenants from time-to-time and will cause all of its agents,
employees, invitees and visitors to do so. All such changes to rules and regulations will be
reasonable and shall be sent by Landlord to Tenant in writing. In the event of a conflict between
the rules and regulations and the terms of this Lease, the terms of this Lease shall control.
Landlord shall not knowingly enforce the rules and regulations against Tenant in a discriminatory
manner.


 


9









 






4. Rent.





A. Tenant covenants to pay to Landlord during the Lease Term, without any setoff or
deduction except as otherwise expressly provided herein, the full amount of all Base Rent and
Additional Rent due hereunder and the full amount of all such other sums of money as shall
become due under this Lease, all of which hereinafter may be collectively called “Rent.” In
addition, Tenant shall pay, as Additional Rent, all rent, sales and use taxes or other similar
taxes, if any, levied or imposed by any city, state, county or other governmental body having
authority, such payments to be in addition to all other payments required to be paid to
Landlord by Tenant under this Lease. Such payments shall be paid concurrently with the
payments of the Rent on which the tax is based. Base Rent and Additional Rent for each
calendar year or portion thereof during the Lease Term, shall be due and payable in advance in
monthly installments on the first day of each calendar month during the Lease Term, without
demand. If the Lease Term commences on a day other than the first day of a month or terminates
on a day other than the last day of a month, then the installments of Base Rent (if any) and
Additional Rent (if any) for such month or months shall be prorated, based on the number of
days in such month. All amounts received by Landlord from Tenant hereunder shall be applied
first to the earliest accrued and unpaid Rent then outstanding. Tenant’s covenant to pay Rent
shall be independent of every other covenant set forth in this Lease.





B. If Tenant fails to pay any installment of Base Rent and Additional Rent or any other
item of Rent within ten (10) days after the same becomes due and payable hereunder, a “Late
Charge” equal to five percent (5%) of such unpaid amount will be due and payable with the next
installment of Base Rent by Tenant to Landlord.





C. The Additional Rent payable hereunder shall be adjusted from time-to-time in
accordance with the provisions of Exhibit C attached hereto.





5. Representations and Warranties of Landlord; Conditions to Effectiveness of Lease.





A. Notwithstanding anything to the contrary set forth herein or in the Phase I Lease, if
and in the event (i) foundation installation work of the Building is not commenced on or
before January 1, 2005 (the “Foundation Commencement Date”) for reasons other than (a) Delays
(as defined in the Work Letter) by Tenant, or (b) Force Majeure (as defined in Section 30.D);
or (ii) Tenant delivers notice to Landlord that Landlord is not diligently and continuously
proceeding to complete the development and construction of the Building and all other
improvements related thereto, unless Landlord provides Tenant with evidence within fifteen
(15) days thereafter that it will still be able to meet the schedule previously provided to
Tenant; or (iii)
Landlord fails to Substantially Complete and deliver occupancy of the Building to Tenant
on or before July 31, 2006 in accordance with the terms and conditions of this Lease for
reasons other than delays solely attributable to the act or failure to act of Tenant in
violation of Tenant’s obligations (if any) under this Lease; or (iv) Landlord defaults under
any other provision of this Lease prior to the Commencement Date, then Tenant may elect, at
its sole option, to terminate this Lease and the Phase I
Lease within thirty (30) days after the date of such occurrence, in which event this Lease and
the Phase I Lease shall terminate and be of no further force or effect.


 


10









 






B. Landlord hereby represents and warrants to Tenant that Landlord has adequate funds
from its own resources and from binding, irrevocable commitments from financial institutions,
to fully fund the development and construction of the Building and all other construction and
related costs included within the definition of the Phase II Project Costs. Landlord hereby
agrees to maintain financial responsibility for the completion of Phase II Project Costs, and
such responsibility shall not be terminated by the transfer of title to the Building as
provided in this Lease, notwithstanding anything to the contrary contained within this Lease.





C. The effectiveness of this Lease and the obligations of Tenant hereunder are subject to
the execution and effectiveness of the Phase I Lease by Landlord and Tenant.





D. The effectiveness of this Lease and the obligations of Tenant hereunder are subject to
the establishment of an industrial development district for the Property by the City and the
City’s grant of tax abatement and issuance of a tax exemption certificate for personal and
real property taxes in amounts and on terms and conditions satisfactory to Tenant in its sole
discretion. If such grants by the City are not received by November 23, 2004, then Tenant, at
its option, may terminate this Lease by written notice received by Landlord within five (5)
days following such date, in which event (i) this Lease shall terminate and be of no further
force or effect, and (ii) Tenant shall reimburse Landlord for all Phase II Project Costs paid
or incurred through the date of termination, as well as all similar costs incurred relative to
the Phase I Lease, and the tenant improvement work required thereby, such payment to be made
within twenty (20) days after Tenant’s receipt of written request therefore. Tenant’s
obligation to make such payment shall survive the termination of this Lease.





E. The effectiveness of this Lease and the obligations of Tenant hereunder are subject to
the receipt by Tenant of other incentives and inducements from the State of Michigan and other
governmental entities contemplated by Tenant and sufficient in Tenant’s judgment to establish
the financial feasibility of Tenant’s relocation to the premises under the Phase I Lease and
the Building as its executive headquarters building. If such incentives or inducements are not
received by November 23, 2004, then Tenant, at its option, may terminate this Lease by written
notice received by Landlord within five (5) days following such date, in which event (i) this
Lease shall terminate and be of no further force or effect, and (ii) Tenant shall reimburse
Landlord for all Phase II Project Costs paid or incurred through the date of termination, as
well as all similar costs incurred relative to the Phase I Lease, and the tenant improvement
work required thereby, such payment to be made within twenty (20) days after Tenant’s receipt
of written request therefore. Tenant’s obligation to make such payment shall survive the
termination of this Lease.


 


11









 






6. Services to be Furnished by Landlord.





A. Landlord shall furnish the following services: (i) heating, ventilating and air
conditioning during Normal Business Hours to provide a temperature condition required for
comfortable occupancy of the Premises under normal business operations; (ii) at all times hot
and cold water for restrooms located in the Building and refrigerated water for drinking
fountains located in the Building, and at Tenant’s request and reasonable expense, hot and
cold water for kitchen areas within the Premises; (iii) janitorial service in the Premises and
Common Areas (including cleaning of all floors—wet mop or dry sweep—, vacuuming of carpets,
emptying wastebaskets, and cleaning restrooms) on Business Days; (iv) electricity to the
Premises for general office use, in accordance with and subject to the terms and conditions of
Section 10 of this Lease; (v)
passenger elevator service, 24 hours a day, 7 days a week; and freight elevator service
on Business Days, upon request of Tenant and subject to scheduling and charges by Landlord;
(vi) on-site trash dumpster and at least weekly trash removal; (vii) snowplowing and ice
removal services for the parking lot, driveways and sidewalks located on the Property, Monday
through Saturday (excluding legal holidays); (viii) maintaining the Parking Deck and all
interior and exterior Common Areas, including elevators and stairwells, in a safe, lawful,
clean and neat, and in good operating, condition; and (ix) wash Building windows at intervals
reasonably established by Landlord.





B. If Tenant requests any other utilities or building services in addition to those
identified in Section 6A, or any of the above utilities or building services in frequency,
scope, quality or quantities substantially greater than the standards set by Landlord for the
Building, then Landlord shall use reasonable efforts to attempt to furnish Tenant with such
additional utilities or building services. Landlord may impose a reasonable charge for such
additional utilities or building services, which shall be paid monthly by Tenant as Additional
Rent on the same day that the monthly installment of Base Rent is due.





C. Except as otherwise expressly provided herein, the failure by Landlord to any extent
to furnish, or the interruption or termination of utilities and Building services identified
in Section 6A in whole or in part, resulting from adherence to laws, regulations and
administrative orders, wear, use, repairs, improvements, alterations or any causes shall not
render Landlord liable in any respect nor be construed as an actual or constructive eviction
of Tenant, nor give rise to an abatement of Rent, nor relieve Tenant from the obligation to
fulfill any covenant or agreement hereof.





D. Notwithstanding anything to the contrary contained in this Section 6, if: (i) Landlord
ceases to furnish any service in the Building for a period in excess of five (5) consecutive
Business Days (or five (5) or more Business Days in any ten (10) Business Day period) after
Tenant notifies Landlord of such cessation (the “Interruption Notice”); (ii) such cessation
does not arise as a result of an act or omission of Tenant; (iii) such cessation is not caused
by a fire or other casualty (in which case Section 16 shall control); (iv) the restoration of
such service is reasonably within the control of Landlord; and (v) as a result of such
cessation, the Premises or a material portion thereof, is rendered reasonably unusable for
Tenant’s ordinary business operations, and Tenant in fact ceases to use the
Premises, or the material portion thereof, then Tenant, as its sole remedy, shall be entitled
to receive an abatement of Base Rent payable hereunder during the period for the period and
duration of such cessation and ending on the day when the service in question has been
restored. In the event the entire Premises has not been rendered untenantable by the cessation
in service, the amount of abatement that Tenant is entitled to receive shall be prorated based
upon the percentage of the Premises so rendered untenantable and not used by Tenant.


 


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7. Leasehold Improvements; Tenant’s Property. Unless otherwise mutually agreed to by
Landlord and Tenant at the time of installation, all Leasehold Improvements, shall be and remain a
part of the Premises; shall be the property of Landlord; and shall not be removed by Tenant except
as expressly provided herein. All Tenant’s Property shall be owned and insured by Tenant. Upon the
termination of the Lease Term or the sooner termination of Tenant’s right to possession of the
Premises, Tenant shall remove Tenant’s Property, all electronic, phone and data cabling exclusively
serving the Premises (whether such cabling is located within or outside of the Premises). Tenant
shall, at its sole cost and expense, repair any damage caused by such removal and perform such
other work as is reasonably necessary to restore the Premises to a “move in” condition. If Tenant
fails to remove any of the foregoing items or to perform any required repairs and restoration, (i)
Landlord, at Tenant’s sole cost and expense, may remove the same (and repair any damage occasioned
thereby) and dispose thereof or deliver such items to any other place of business of Tenant, or
warehouse the same, and Tenant shall pay the cost of such removal, repair, delivery, or warehousing
of such items within twenty (20) days after demand from Landlord, and (ii) such failure shall be
deemed a holding over by Tenant under Section 23 hereof until such failure is rectified by Tenant
or Landlord.




8. Signage. Tenant will have the right to place any and all interior signage of its
own design and selection within the Premises, subject to Landlord’s prior approval (which shall not
be unreasonably withheld). Tenant will also have the right to place its name on any monument
signage that Landlord erects for the Building, in a style
satisfactory to Landlord and Tenant and of a scale and visibility of equal or greater
prominence than any other Building tenant.



For so long as Tenant leases and occupies the entire Building, Tenant shall have the right to
have its name placed on the exterior of the Building (the “Building Sign”). Tenant shall make
certain that the Building Sign is at all times in compliance with all applicable laws, and shall
also be subject to the approval of Landlord with respect to size, location, design and content,
which approval shall not be unreasonably withheld. Tenant may not modify the size, design or
content of the Building Sign without the prior written approval of Landlord which approval shall
not be unreasonably withheld. The costs associated with obtaining the necessary governmental
approvals and permitting, and for designing, producing, installing, maintaining and removing the
Building Sign shall be borne by Tenant. Tenant shall bear the cost of illuminating the Building
Sign and all costs of operating and maintaining said illumination (including bulbs and ballasts)
(“Lighting Costs”). If any Lighting Cost is invoiced to Landlord, such cost shall become additional
Rent due from Tenant upon invoice therefore from Landlord. Upon the expiration or termination of
this Lease, termination of Tenant’s right of possession of the Premises or termination of Tenant’s
right to maintain the Building Sign provided in this section, Tenant (at its expense but performed
by a contractor selected by Landlord) shall remove such Building signage, and shall repair and restore
any damage caused by such removal.




 


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9. Maintenance, Repairs and Alterations.





A. Except to the extent such obligations are imposed upon Landlord hereunder, Tenant
shall, at its sole cost and expense, maintain the interior of the Premises in good order,
condition and repair throughout the entire Lease Term, ordinary wear and tear excepted. Tenant
agrees to keep the areas visible from outside the Premises in a neat, clean and attractive
condition at all times. Tenant shall, within thirty (30) days after Landlord’s written demand
therefor, reimburse Landlord for the cost of all repairs, replacements and alterations
(collectively, “Repairs”) in and to the Premises, Building and Property and the facilities and
systems thereof, plus an administration charge often percent (10%) of such cost, the need for
which Repairs arises out of (and provided Landlord has given prior written notice to Tenant of
such need): (1) Tenant’s use of the Premises in contravention of the terms and conditions of
this Lease, or Tenant’s failure to perform maintenance or repairs which are Tenant’s
obligation hereunder, (2) the installation, removal, use or operation of Tenant’s Property, if
undertaken by Landlord at Tenant’s request or by virtue of Tenant’s default in undertaking
such obligations, (3) the moving of Tenant’s Property into or out of the Building, or (4) the
act, omission, misuse or negligence of Tenant, its agents, contractors, employees or invitees.





B. Tenant shall not make or allow to be made any alterations, additions or improvements
to the Premises (collectively, “Alterations”), without first obtaining the written consent of
Landlord, which consent shall not be unreasonably withheld or delayed; provided however,
Tenant shall have the right to perform, without Landlord’s consent, certain Alterations that
do not cost in excess of $25,000.00 in the aggregate (at any one time), and do not affect any
mechanical or electrical or life safety systems or plumbing in the Building, provided that
advance notice has been given to Landlord in each instance. Landlord reserves the right to
require Tenant to remove at the end of the Lease Term any Alterations installed without the
Landlord’s consent. Prior to commencing any such Alterations and as a condition to obtaining
Landlord’s consent where necessary, Tenant shall deliver to Landlord plans and specifications
acceptable to Landlord; names and addresses of contractors reasonably acceptable to Landlord;
copies of contracts; necessary permits and approvals; evidence of contractor’s and
subcontractor’s insurance in accordance with Section 13 hereof; and a payment bond or other
security, all in form and amount satisfactory to Landlord. Tenant shall be responsible for
insuring that all such persons procure and maintain insurance coverage against such risks, in
such amounts and with such companies as Landlord may reasonably require. All Alterations shall
be constructed in a good and workmanlike manner using Building standard materials or other new
materials of equal or greater quality. Landlord, to the extent reasonably necessary to avoid
any disruption to the tenants and occupants of the Building, shall have the right to designate
the time when any Alterations may be performed and to otherwise designate reasonable rules,
regulations and procedures for the performance of work in the Building. Upon completion of the
Alterations, Tenant shall deliver to Landlord “as-built” plans,
contractor’s affidavits and full and final waivers of lien and receipted bills covering
all labor and materials. All
Alterations shall comply with the insurance requirements and with applicable codes,
ordinances, laws and regulations. Tenant shall reimburse Landlord upon demand for all
reasonable sums, if any, expended by Landlord for third party examination of the
architectural, mechanical, electrical and plumbing plans for any Alterations. In addition, if
Landlord so requests, Landlord shall be entitled to oversee the construction of any
Alterations, and in such event, Tenant shall reimburse Landlord for Landlord’s actual out of
pocket costs incurred in connection therewith, which may include the cost of management
personnel working outside of Normal Business Hours. Landlord’s approval of Tenant’s plans and
specifications for any Alterations performed for or on behalf of Tenant shall not be deemed to
be representation by Landlord that such plans and specifications comply with applicable
insurance requirements, building codes, ordinances, laws or, regulations or that the
Alterations constructed in accordance with such plans and specifications will be adequate for
Tenant’s use.


 


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10. Use of Electrical Services by Tenant. All electricity used by Tenant in the
Premises shall, at Landlord’s option, be paid for by Tenant by (i) a separate charge or charges
billed by the utility company providing electrical service and payable by Tenant directly to such
utilities company, or (ii) a separate charge billed directly to Tenant by Landlord and payable by
Tenant as additional rent. Such charge shall be based upon the electric current consumed on the
Premises during the Lease Term, the rates, terms and conditions for comparable service to Tenant
directly from The Detroit Edison Company under like conditions, all as determined by an independent
meter reader. Landlord shall have the right at any time and from time-to-time during the Lease Term
to contract for electricity service from such providers of such services as Landlord shall elect
(each being an “Electric Service Provider”). Tenant shall cooperate with Landlord, and the
applicable Electric Service Provider, at all times and, as reasonably necessary, shall allow
Landlord and such Electric Service Provider reasonable access to the Building’s electric lines,
feeders, risers, wiring, and any other machinery within the Premises. Tenant’s use of electrical
services furnished by Landlord shall not exceed in voltage, rated capacity, or overall load that
which is standard for the Building. In the event Tenant shall request that it be allowed to consume
electrical services in excess of Building standard, Landlord may refuse to consent to such usage or
may consent upon such conditions as Landlord reasonably elects, and all such additional usage shall
be paid for by Tenant as Additional Rent. Landlord, at any time during the Lease Term, shall have
the right to separately meter electrical usage for the Premises or to measure electrical usage by
survey or any other method that Landlord, in its reasonable judgment, deems appropriate.





11. Assignment and Subletting.





A. Except in connection with a Permitted Transfer (defined in Section 11E below), Tenant
shall not assign, sublease, transfer or encumber any interest in this Lease or allow any third
party to use any portion of the Premises (collectively or individually, a “Transfer”) without
the prior written consent of Landlord, which consent shall not be unreasonably withheld or
delayed. Without limitation, it is agreed that Landlord’s consent shall not be considered
unreasonably withheld if: (1) the proposed transferee’s financial condition is not adequate
for the obligations such transferee is assuming in connection with the proposed Transfer; (2)
the transferee’s business or reputation is not suitable for the Building considering the
business and reputation of the other tenants and the Building’s
prestige, or would result in a violation of another tenant’s rights under its lease at the
Building; (3) the transferee is a governmental agency or occupant of the Building; (4) Tenant
is in default beyond any applicable notice and cure period; or (5) Landlord or its leasing
agent has received a proposal from or made a proposal to the proposed transferee to lease
space in the Building within six (6) months prior to Tenant’s delivery of written notice of
the proposed Transfer to Landlord. Consent by Landlord to one or more Transfers shall not
operate as a waiver of Landlord’s rights to approve any subsequent Transfers. In no event
shall any Transfer or Permitted Transfer release or relieve Tenant from any obligation under
this Lease or any liability hereunder.





 


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B. If Tenant requests Landlord’s consent to a Transfer, Tenant shall submit to Landlord
(i) financial statements for the proposed transferee, (ii) a copy of the proposed assignment
or sublease, and (iii) such other information as Landlord may reasonably request. After
Landlord’s receipt of the required information and documentation, Landlord shall either: (1)
consent or reasonably refuse consent to the Transfer in writing; (2) in the event of a
proposed assignment of this Lease, terminate this Lease (and thereby release Tenant from any
further obligations under this Lease) effective the first to occur of ninety (90) days
following written notice of such termination or the date that the proposed Transfer would have
come into effect; and (3) in the event of a proposed subletting, terminate this Lease with
respect to the portion of the Premises which Tenant proposes to sublease (and thereby release
Tenant from any further obligations under this Lease with respect to such sublet portion)
effective the first to occur of ninety (90) days following written notice of such termination
or the date the proposed Transfer would have come into effect. Tenant shall pay Landlord a
review fee of $500.00 for Landlord’s review of any Permitted Transfer or proposed Transfer. In
addition, Tenant shall reimburse Landlord for its actual reasonable costs and expenses
(including, without limitation, reasonable attorney’s fees) incurred by Landlord in connection
with Landlord’s review of such proposed Transfer or Permitted Transfer.





C. Tenant shall pay to Landlord fifty percent (50%) of all cash and other consideration
which Tenant receives as a result of a Transfer that is in excess of the rent payable to
Landlord hereunder for the portion of the Premises and Lease Term covered by the Transfer
within ten (10) business days following receipt thereof by Tenant.





D. Except as provided below with respect to a Permitted Transfer, if Tenant is a
corporation, limited liability company, partnership or similar entity, and the person, persons
or entity which owns or controls a majority of the voting interests at the time changes for
any reason (including but not limited to a merger, consolidation or reorganization), such
change of ownership or control shall constitute a Transfer. The foregoing shall not apply so
long as Tenant is an entity whose outstanding stock is listed on a nationally recognized
security exchange, or if at least eighty percent (80%) of its voting stock is owned by another
entity, the voting stock of which is so listed.





E. Tenant may assign its entire interest under this Lease or sublet the Premises (i) to
any entity controlling or controlled by or under common control with Tenant or (ii) to any
successor to Tenant by purchase, merger, consolidation or reorganization (hereinafter,
collectively, referred to as “Permitted Transfer”) without the consent of Landlord, provided:
(1) Tenant is not in default under this Lease; (2) if such proposed transferee is a successor
to Tenant by purchase, said proposed transferee shall acquire all or substantially all of the
stock or assets of Tenant’s business or, if such proposed transferee is a successor to Tenant
by merger, consolidation or reorganization, the continuing or surviving entity shall own all
or substantially all of the assets of Tenant; (3) with respect to a Permitted Transfer to a
proposed transferee described in clause (ii), such proposed transferee shall have a net worth
which is at least equal to the greater of Tenant’s net worth at the date of this Lease or
Tenant’s net worth as of the day prior to the proposed purchase, merger, consolidation or
reorganization as evidenced to Landlord’s reasonable satisfaction; and (4) Tenant shall give
Landlord written notice at least thirty (30) days prior to the effective date of the proposed
purchase, merger, consolidation or reorganization.


 


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12. Construction Liens. Tenant will not permit any construction liens or other similar
liens to be placed upon the Property. If a lien is attached to the Property, then, in addition to
any other right or remedy of Landlord, Landlord may, but shall not be obligated to, discharge the
same. Any amount paid by Landlord for any of the aforesaid purposes including, but not limited to,
reasonable attorneys’ fees, shall be paid by Tenant to Landlord within thirty (30) days after
demand as Additional Rent. Tenant shall within thirty (30) days after receiving such notice of lien
or claim have such lien or claim released of record, or bonded over to the reasonable satisfaction
of Landlord. Tenant’s failure to comply with the provisions of the foregoing sentence shall be
deemed an Event of Default entitling Landlord to exercise all of its remedies therefor without the
requirement of any additional notice or cure period.




13. Insurance.





A. Landlord shall, at all times during the Lease Term, procure and maintain: (i) policies
of insurance covering loss or damage to the Property in an amount equal to the full
replacement cost of the Building, including leasehold improvements in the Premises, which
shall provide protection against loss by fire and other all-risk casualties including
earthquake and flood and such other property insurance as may be required by Landlord’s
mortgagee or as otherwise desired by Landlord, and (ii) commercial general liability insurance
applicable to the Building and the Common Areas, providing a minimum limit of $3,000,000.00
per occurrence.





B. Tenant shall procure and maintain, at its expense, (i) all-risk (special form)
property insurance in an amount equal to the full replacement cost of Tenant’s Property
located in the Premises; (ii) a policy or policies of general liability and umbrella or excess
liability insurance applying to Tenant’s operations and use of the Premises, providing a
minimum limit of $3,000,000.00 per occurrence and in the aggregate, naming Landlord and
Landlord’s Building manager as additional insureds, (iii) automobile liability insurance
covering owned, non-owned and hired vehicles in an amount not less than a combined single
limit of $1,000,000.00 per accident, and (iv) workers’ compensation insurance in accordance
with the laws of the State in which the Property is located and employer’s liability insurance
in an amount not less than $1,000,000.00 each accident, $1,000,000.00 disease-each employee
and policy limit, with the insurance policies required under this
clause (iv) to be endorsed to waive the insurance carriers’ right of subrogation. Tenant shall
maintain the foregoing insurance coverages in effect commencing on the earlier to occur of the
Commencement Date and the date Tenant takes possession of the Premises, and continuing to the
end of the Lease Term. Tenant may, at its election, provide the foregoing insurance coverage
through blanket policies covering multiple locations of Tenant’s operations, provided that the
Property shall be identified by schedule or otherwise and provided further that the foregoing
limits shall apply to the Premises and Tenant’s Property as required herein.


 


17









 






C. The insurance requirements set forth in this Section 13 are independent of the waiver,
indemnification, and other obligations under this Lease and will not be construed or
interpreted in any way to restrict, limit or modify the waiver, indemnification and other
obligations or to in any way limit any party’s liability under this Lease. In addition to the
requirements set forth in Sections 13 and 14, the insurance required of Tenant under this
Lease must be issued by an insurance company with a rating of no less than A-VIII in the
current Best’s Insurance Guide or that is otherwise acceptable to Landlord, and admitted to
engage in the business of insurance in the state in which the Building is located; be primary
insurance for all claims under it and provide that any insurance carried by Landlord,
Landlord’s Building manager, and Landlord’s lenders is strictly excess, secondary and
noncontributing with any insurance carried by Tenant; and provide that insurance may not be
cancelled, nonrenewed or the subject of change in coverage of available limits of coverage,
except upon thirty (30) days’ prior written notice to Landlord and Landlord’s lenders. Tenant
will deliver to Landlord a legally enforceable certificate of insurance on all policies
procured by Tenant in compliance with Tenant’s obligations under this Lease on or before the
date Tenant first occupies any portion of the Premises, at least ten (10) days before the
expiration date of any policy and upon the renewal of any policy. Landlord shall have the
right to approve all deductibles and self-insured retentions under Tenant’s policies, which
approval shall not be unreasonably withheld, conditioned or delayed.





D. Neither Landlord nor Tenant shall be liable (by way of subrogation or otherwise) to
the other party (or to any insurance company insuring the other party) for any loss or damage
to any of the property of Landlord or Tenant, as the case may be, with respect to their
respective property, the Building, the Property or the Premises or any addition or
improvements thereto, or any contents therein, to the extent covered by insurance carried or
required to be carried by a party hereto even though such loss might have been occasioned by
the negligence or willful acts or omissions of the Landlord or Tenant or their respective
employees, agents, contractors or invitees. Landlord and Tenant shall give each insurance
company which issues policies of insurance, with respect to the items covered by this waiver,
written notice of the terms of this mutual waiver, and shall have such insurance policies
properly endorsed, if necessary, to prevent the invalidation of any of the coverage provided
by such insurance policies by reason of such mutual waiver. For the purpose of the foregoing
waiver, the amount of any deductible applicable to any loss or damage shall be
deemed covered by, and recoverable by the insured under the insurance policy to which
such deductible relates.


 


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14. Indemnity. To the extent not expressly prohibited by law, Landlord and Tenant each
(in either case, the “Indemnitor”) agree to hold harmless and indemnify the other and the other’s
agents, partners, shareholders, members, officers, directors, beneficiaries and employees
(collectively, the “Indemnitees”) from any losses, damages, judgments, claims, expenses, costs and
liabilities imposed upon or incurred by or asserted against the Indemnitees, including without
limitation reasonable attorneys’ fees and expenses, for death or injury to, or damage to property
of, third parties, other than the Indemnitees, that may arise from the negligence or willful
misconduct of Indemnitor or any of Indemnitor’s agents, members, partners or employees. Such third
parties shall not be deemed third party beneficiaries of this Lease. If any action, suit or
proceeding is brought against any of the Indemnitees by reason of the negligence or willful
misconduct of Indemnitor or any of Indemnitor’s agents, contractors, members, partners or
employees, then Indemnitor will, at Indemnitor’s expense and at the option of said Indemnitees, by
counsel reasonably approved by said Indemnitees, resist and defend such action, suit or proceeding.
In addition, to the extent not expressly prohibited by law, Tenant agrees to hold harmless and
indemnify Landlord and Landlord’s Indemnitees from any losses, damages, judgments, claims,
expenses, costs and liabilities imposed upon or incurred by or asserted against Landlord or
Landlord’s Indemnitees, including reasonable attorneys’ fees and expenses, for death or injury to,
or damage to property of, third parties (other than Landlord’s Indemnitees) that may arise from any
act or occurrence in the Premises, except to the extent caused by the negligence or willful
misconduct of Landlord, Landlord’s contractors, or Landlord’s Indemnitees.




15. Damages from Certain Causes. To the extent not expressly prohibited by law,
Landlord shall not be liable to Tenant or Tenant’s employees, contractors, agents, invitees or
customers, for any injury to person or damage to property sustained by Tenant or any such party or
any other person claiming through Tenant resulting from any accident or occurrence in the Premises
or any other portion of the Building caused by the Premises or any other portion of the Building
becoming out of repair or by defect in or failure of equipment, pipes, or wiring, or by broken
glass, or by the backing up of drains, or by gas, water, steam, electricity, or oil leaking,
escaping or flowing into the Premises (except where due to Landlord’s grossly negligent or willful
failure to make repairs required to be made pursuant to other provisions of this Lease, after the
expiration of a reasonable time after written notice to Landlord of the need for such repairs), nor
shall Landlord be liable to Tenant for any loss or damage that may be occasioned by or through the
acts or omissions of other tenants of the Building or of any other persons whomsoever, including,
but not limited to riot, strike, insurrection, war, court order, requisition, order of any
governmental body or authority, acts of God, fire or theft.


 


19









 





16. Casualty Damage. If the Premises or any part thereof shall be damaged by fire or
other casualty, Tenant shall give prompt written notice thereof to Landlord. In case the Building
shall be so damaged that substantial alteration or reconstruction of the Building shall, in
Landlord’s reasonable exercise of its business opinion as supported by documentation by a certified
architect and delivered to Tenant, take more than 180 days to complete (whether or not the Premises
shall have been damaged by such casualty), or in the event there is less than two (2) years of the
Lease Term remaining, or in the event Landlord’s mortgagee should require that the insurance
proceeds payable as a result of a casualty be applied to the payment of the mortgage debt, or in
the event of any material uninsured loss to the Building, either Landlord or Tenant may, at its
respective option, terminate this Lease by notifying the other in writing of such termination
within ninety (90) days
after the date of such casualty. If Landlord determines that any such damage shall take less than
180 days to complete, upon Tenant’ reasonable request, Landlord shall furnish Tenant with
supporting documentation from a certified architect. If neither Landlord nor Tenant so elects to
terminate this Lease, Landlord shall commence (no later than sixty (60) days following the
casualty) and proceed with diligence to restore the Building, and the improvements located within
the Premises to substantially the same condition in which it was immediately prior to the happening
of the casualty. Notwithstanding the foregoing, Landlord’s obligation to restore the Building, and
the improvements located within the Premises shall not require Landlord to expend for such repair
and restoration work more than the insurance proceeds actually received by Landlord as a result of
the casualty; provided that Landlord
shall have complied with the insurance requirements and limits set forth in Section 13A. When the
repairs described in the preceding two sentences have been completed by Landlord, Tenant shall
complete the restoration of all Tenant’s Property which are necessary to permit Tenant’s
reoccupancy of the Premises. Landlord shall not be liable for any inconvenience or annoyance to
Tenant or injury to the business of Tenant resulting in any way from such damage or the repair
thereof, except that Rent shall be abated from the date of the damage or destruction for any
portion of the Premises that is unusable by Tenant (including without limitation if the Premises is
not itself damaged, but the Building has suffered damage making access to and use of the Premises
impracticable), which abatement shall be in the same proportion that the Rentable Area of the
Premises which is unusable (or such use is so rendered impracticable) by Tenant bears to the total
Rentable Area of the Premises; provided that Tenant shall not be entitled to any abatement of Rent
if the damage or destruction within the Premises is restored within five (5) Business Days after
Landlord’s receipt of written notice from Tenant of the occurrence of the damage or destruction.




17. Condemnation. If the whole or any substantial part of the Premises or if the
Building or any portion thereof which would leave the remainder of the Building unsuitable for use
comparable to its use on the Commencement Date, or if the land on which the Building or the Parking
Deck is located or any material portion thereof, shall be taken or condemned for any public or
quasi-public use under governmental law, ordinance or regulation, or by right of eminent domain, or
by private purchase in lieu thereof, then either Landlord or Tenant may, at its respective option,
terminate this Lease by written notice to the other party and Rent shall be abated during the
unexpired portion of this Lease, effective when the physical taking of said Premises or said
portion of the Building or land shall occur. If this Lease is not terminated, the Rent for any
portion of the Premises so taken or condemned shall be abated during the unexpired Lease Term
effective when the physical taking of said portion of the Premises shall occur. All compensation
awarded for any taking or condemnation, or sale proceeds in lieu thereof, shall be the property of
Landlord, and Tenant shall have no claim thereto, the same being hereby expressly waived by Tenant,
except for any portions of such award or proceeds which are specifically allocated by the
condemning or purchasing party for the taking of or damage to trade fixtures of Tenant and moving
costs, which Tenant specifically reserves to itself.


 


20









 







18. Events of Default.





A. The following events shall be deemed to be “Events of Default” under this Lease: (i)
Tenant fails to pay any Rent when due; provided that the first (1st) such failure
during any consecutive twelve (12) month period during the Term shall not be an Event of
Default if Tenant pays the amount due within ten (10) days after Tenant’s receipt of written
notice from Landlord that such payment was not made when due; (ii) Tenant fails to perform any
other provision of this Lease not described in this Section 18, and such failure is not cured
within thirty (30) days (or immediately if the failure involves a hazardous condition) after
notice from Landlord, however, other than with respect to a hazardous condition, if Tenant’s
failure to comply cannot reasonably be cured within thirty (30) days, Tenant shall be allowed
additional time (not to exceed ninety (90) additional days) as is reasonably necessary to cure
the failure so long as Tenant begins the cure within thirty (30) days and diligently pursues
the cure to completion; (iii) Tenant fails following written notice and within any applicable
cure period to observe or perform any of the covenants with respect to (a) assignment and
subletting as set forth in Section 11, (b) construction liens as set forth in Section 12, (c)
insurance as set forth in Section 13 or (d) delivering subordination agreements or estoppel
certificates as set forth in Section 24, (iv) the leasehold interest of Tenant is levied upon
or attached under process of law; (v) Tenant dissolves; (vi) Tenant abandons or vacates the
Premises; (vii) any voluntary or involuntary proceedings are filed by or against Tenant or any
guarantor of this Lease under any bankruptcy, insolvency or similar laws and, in the case of
any involuntary proceedings, are not dismissed within sixty (60) days after filing; or (viii)
an Event of Default by Tenant under the Phase I Lease.





B. The following events shall be deemed to be “Landlord Default(s)” under this Lease: (i)
any representation or warranty made by Landlord under this Lease, including without limitation
those enumerated in Section 5.B is untrue; (ii) Landlord fails to perform any express
undertaking of Landlord under this Lease, including without limitation those enumerated in
Sections 5.A, 5.B and 5.C; (iii) Landlord defaults in the Phase I Lease; or (iv) Landlord
fails to perform any other provision of this Lease not described in this Section
18, and such failure is not cured within thirty (30) days (or immediately if the failure
involves a hazardous condition) after notice from Tenant, however, other than with respect to
a hazardous condition, if Landlord’s failure to comply cannot reasonably be cured within
thirty (30) days, Landlord shall be allowed additional time (not to exceed ninety (90)
additional days) as is reasonably necessary to cure the failure so long as Landlord begins the
cure within thirty (30) days and diligently pursues the cure to completion.





19. Remedies.





A. Upon the occurrence of any Event of Default, Landlord shall have the following rights
and remedies, subject in all respects to the provisions and limitations of applicable laws,
any one or more of which may be exercised without further notice to or demand upon Tenant and
which may be pursued successively or cumulatively as Landlord may elect:




	 	(1)	 	Landlord may re-enter the Premises and attempt to cure any default of
Tenant, in which event Tenant shall, upon demand, reimburse Landlord
as Additional Rent for all reasonable costs and expenses which
Landlord incurs to cure such default;





 


21









 





	 	(2)	 	Landlord may terminate this Lease by giving to Tenant notice of
Landlord’s election to do so, in which event the Lease Term shall end,
and all right, title and interest of Tenant hereunder shall expire, on
the date stated in such notice;

	 
	 	(3)	 	Landlord may terminate the right of Tenant to possession of the
Premises without terminating this Lease by giving notice to Tenant and
pursuing its remedies for recovery of possession in accordance with
applicable Michigan law; and

	 
	 	(4)	 	Landlord may enforce the provisions of this Lease by a suit or suits
in equity or at law for the specific performance of any covenant or
agreement contained herein, or for the enforcement of any other
appropriate legal or equitable remedy, including recovery of all
moneys due or to become due from Tenant under any of the provisions of
this Lease.







Landlord shall not be required to serve Tenant with any notices or demands as a prerequisite to its
exercise of any of its rights or remedies under this Lease, other than those notices and demands
specifically required under this Lease or applicable law. TENANT WAIVES ANY RIGHT TO TRIAL BY JURY
IN ANY LAWSUIT BROUGHT BY LANDLORD TO RECOVER POSSESSION OF THE PREMISES FOLLOWING LANDLORD’S
TERMINATION OF THIS LEASE OR THE RIGHT OF TENANT TO POSSESSION OF THE PREMISES PURSUANT TO THE
TERMS OF THIS LEASE AND ON ANY CLAIM FOR DELINQUENT RENT WHICH LANDLORD MAY JOIN IN ITS LAWSUIT TO
RECOVER POSSESSION.




B. If Landlord exercises either of the remedies provided in Sections 19A(2) or 19A(3),
Tenant shall surrender possession and vacate the Premises and immediately deliver possession
thereof to Landlord, and Landlord may re-enter and take complete and peaceful possession of
the Premises, with process of law, and Landlord may remove all occupants and property
therefrom, using such force as may be necessary to the extent allowed by law, without being
deemed guilty in any manner of trespass, eviction or forcible entry and detainer and without
relinquishing Landlord’s right to Rent or any other right given to Landlord hereunder or by
operation of law.





C. If Landlord terminates the right of Tenant to possession of the Premises without
terminating this Lease, Landlord shall have the right to immediate recovery of all amounts
then due hereunder. Such termination of possession shall not release Tenant, in whole or in
part, from Tenant’s obligation to pay Rent hereunder for the full Lease Term, and Landlord
shall have the right, from time to time, to recover from Tenant, and Tenant shall remain
liable for, all Rent accruing as it becomes due under this Lease during the period from the
date of such notice of termination of possession to the stated end of the Lease Term. In any
such case, Landlord shall make reasonable efforts, in accordance with Section 19E hereof, to
relet the Premises. In attempting to relet the Premises, Landlord may make repairs,
alterations and additions in or to the Premises and redecorate the same to the extent
reasonably deemed by Landlord necessary or desirable, and Tenant upon
demand shall pay the reasonable cost of all of the foregoing together with Landlord’s
reasonable expenses of reletting. The rents from any such reletting shall be applied first to
the payment of the expenses of reentry, redecoration, repair and alterations and the expenses
of reletting (including reasonable attorneys’ fees and brokers’ fees and commissions) and
second to the payment of Rent herein provided to be paid by Tenant. Any excess or residue
shall operate only as an offsetting credit against the amount of Rent due and owing as the
same thereafter becomes due and payable hereunder.


 


22









 






D. If this Lease is terminated by Landlord, Landlord shall be entitled to recover from
Tenant all Rent accrued and unpaid for the period up to and including such termination date,
as well as all other additional sums payable by Tenant, or for which, Tenant is liable or for
which Tenant has agreed to indemnify Landlord, which may be then owing and unpaid, and all
reasonable costs and expenses, including court costs and reasonable attorneys’ fees incurred
by Landlord in the enforcement of its rights and remedies hereunder. In addition, Landlord
shall be entitled to recover as damages for loss of the bargain and not as a penalty (1) the
aggregate sum which at the time of such termination represents the excess, if any, of the
present value of the aggregate Rent which would have been payable after the termination date
had this Lease not been terminated, including, without limitation, the amount projected by
Landlord to represent Additional Rent for the remainder of the Lease Term, over the then
present value of the then aggregate fair rent value of the Premises for the balance of the
Lease Term, including for this purpose the Additional Rent that would constitute a component
thereof, such present worth to be computed in each case on the basis of a ten percent (10%)
per annum discount from the respective dates upon which such Rent would have been payable
hereunder had this Lease not been terminated, and (2) any damages in addition thereto,
including without limitation reasonable attorneys’ fees and court costs, which Landlord
sustains as a result of the breach of any of the covenants of this Lease other than for the
payment of Rent.





E. Landlord shall use commercially reasonable efforts to mitigate any damages resulting
from an Event of Default by Tenant under this Lease. Landlord’s obligation to mitigate damages
after an Event of Default by Tenant under this Lease shall be satisfied in full if Landlord
undertakes to lease the Premises to another tenant (a “Substitute Tenant”) in accordance with
the following criteria: (1) Landlord shall have no obligation to solicit or entertain
negotiations with any other prospective tenants for the Premises until Landlord obtains full
and complete possession of the Premises including, without limitation, the final and
unappealable legal right to relet the Premises free of any claim of Tenant; (2) Landlord shall
not be obligated to lease or show the Premises, on a priority basis, or offer the Premises to
a prospective tenant when other premises in the Building suitable for that prospective
tenant’s use are (or soon will be) available; (3) Landlord shall not be obligated to lease the
Premises to a Substitute Tenant for a rent less than the current fair market rent then
prevailing for similar uses in comparable buildings in the same market area as the Building,
nor shall Landlord be obligated to enter into a new lease under other terms and conditions
that are unacceptable to Landlord under Landlord’s then current leasing policies for
comparable space in the Building; (4) Landlord shall not be obligated to enter into a lease
with a Substitute Tenant whose use would: (i) violate any restriction, covenant, or
requirement contained in the lease of another tenant of the Building; (ii) adversely affect
the reputation of the Building; or (iii) be incompatible with the operation of the Building;
and (5) Landlord shall not be obligated to enter into a lease with any proposed Substitute
Tenant which does not have, in Landlord’s reasonable opinion, sufficient financial resources
to operate the Premises in a first class manner and to fulfill all of the obligations in
connection with the lease thereof as and when the same become due.


 


23









 






F. The receipt by Landlord of less than the full Rent due shall not be construed to be
other than a payment on account of Rent then due, nor shall any statement on Tenant’s check or
any letter accompanying Tenant’s check be deemed an accord and satisfaction, and Landlord may
accept such payment without prejudice to Landlord’s right to recover the balance of the Rent
due or to pursue any other remedies provided in this Lease. The acceptance by Landlord of Rent
hereunder shall not be construed to be a waiver of any breach by Tenant of any term, covenant
or condition of this Lease. No act or omission by Landlord or its
 employees or agents during the Lease Term shall be deemed an acceptance of a surrender of
the Premises, and no agreement to accept such a surrender shall be valid unless in writing and
signed by Landlord.





G. To the extent allowed by law, all installments of Rent not paid within thirty (30)
days after the due date therefor shall bear interest at the Default Rate from the date due
until paid. In the event of any litigation between Tenant and Landlord to enforce or interpret
any provision of this Lease or to enforce any right of either party hereto, the unsuccessful
party to such litigation shall pay to the successful party all costs and expenses, including
reasonable attorney’s fees, incurred therein.





H. In the event of a Landlord Default, Tenant may exercise any and all remedies available
to it at law or in equity. Landlord in any event shall have personal liability in connection
with any Landlord Default pertaining to the representations, warranties and covenants by
Landlord under Section 5.B of this Lease, notwithstanding anything to the contrary otherwise
set forth herein.




20. No Waiver. Failure of either party to declare any default immediately upon its
occurrence, or delay in taking any action in connection with an event of default, shall not
constitute a waiver of such default, nor shall it constitute an estoppel against the non-defaulting
party, but the non-defaulting party shall have the right to declare the default at any time and
take such action as is lawful or authorized under this Lease. Failure by non-defaulting party to
enforce its rights with respect to any one default shall not constitute a waiver of its rights with
respect to any subsequent default.




21. Peaceful Enjoyment. Tenant shall, and may peacefully have, hold, and enjoy the
Premises, subject to the other terms hereof, provided that Tenant pays the Rent and other sums
herein recited to be paid by Tenant and timely performs all of Tenant’s covenants and agreements
herein contained.


 


24









 






22. Substitution. Intentionally omitted.




23. Holding Over. If Tenant continues to occupy the Premises after the expiration or
other termination of this Lease or the termination of Tenant’s right of possession, such occupancy
shall be that of a tenancy at sufferance. Tenant shall, throughout the entire holdover period, be
subject to all the terms and provisions of this Lease and shall pay for its use and occupancy an
amount (on a per month basis without reduction for any partial months during any such holdover)
equal to one hundred fifty percent (150%) of the Base Rent and one hundred percent (100%) of the
Additional Rent due under this Lease for the last full month of the term hereof during the first
ninety (90) days of such holdover, and two hundred percent (200%) of such Base Rent and one hundred
percent (100%) of such Additional Rent thereafter during such holdover. No holding over by Tenant
or payments of money by Tenant to Landlord after the expiration of the Lease Term shall be
construed to extend the Lease Term or prevent Landlord from recovery of immediate possession of the
Premises by summary proceedings or otherwise Tenant shall also be liable to Landlord for all direct
and consequential damages which Landlord may suffer by reason of any holding over by Tenant.




24. Subordination to Mortgage; Estoppel Certificate. Tenant accepts this Lease subject
and subordinate to any ground lease, mortgage, deed of trust or other lien presently existing or
hereafter arising upon the Premises, or upon the Building or the Property and to any renewals,
modifications, refinancings and extensions thereof, but Tenant agrees that any such mortgagee shall
have the right at any time to subordinate such mortgage, deed of trust or other lien to this Lease
on such terms and subject to such conditions as such mortgagee may deem appropriate in its
discretion. The provisions of the foregoing sentence shall be self-operative and no further
instrument of subordination shall be required. However, Landlord is hereby irrevocably vested with
full power and authority to subordinate this Lease to any mortgage, deed of trust or other lien now
existing or hereafter placed upon the Premises, or the Building or the Property and Tenant agrees
within twenty (20) days after written demand to execute such further instruments subordinating this
Lease or attorning to the holder of any such liens as Landlord may request; provided, however, that
it shall be a condition of any such subordination by Tenant that the mortgagee, trustee under deed
of trust or holder of such other lien agree that, in the event of a default by Landlord and
foreclosure of the applicable mortgage, deed of trust or other lien, the mortgagee, trustee or
holder, and any purchaser at foreclosure sale, shall acknowledge Tenant’s rights under this Lease
and shall not disturb Tenant’s possession of the Premises so long as Tenant is not in default under
this Lease. Tenant agrees that it shall from time-
to-time furnish within twenty (20) days after so requested by Landlord, a certificate signed
by Tenant certifying as to such matters as may be reasonably requested by Landlord. Any such
certificate may be relied upon by any ground lessor, prospective purchaser, secured party,
mortgagee or any beneficiary under any mortgage, deed of trust on the Building or the Property or
any part thereof or interest of Landlord therein.




25. Notice. Any notice required or permitted to be given under this Lease or by law
shall be deemed to have been given if it is written and delivered in person or mailed by Registered
or Certified mail, postage prepaid, or sent by a nationally recognized overnight delivery service
to the party who is to receive such notice at the address specified in Section 1 of this Lease
(and, if no address is listed for Tenant, notices to Tenant shall be delivered to the Premises).
When so mailed, the notice shall be deemed to have been given two (2) Business Days after the date
it was mailed. When sent by overnight delivery service, the notice shall be deemed to have been
given on the next
Business Day after deposit with such overnight delivery service. The address specified in Section 1
of this Lease may be changed from time to time by giving written notice thereof to the other party.



 


25









 





26. Surrender of Premises. Upon the termination of the Lease Term, or upon any
termination of Tenant’s right to possession of the Premises, Tenant will at once surrender
possession of the Premises to Landlord in good condition and repair, ordinary wear and tear, and
damage by fire and the elements, excepted. Tenant shall surrender to Landlord all keys to the
Premises and make known to Landlord the combination of all combination locks which Tenant is
required to leave on the Premises.




27. Rights Reserved to Landlord. Landlord reserves the following rights, exercisable
without notice, except as provided herein, and without liability to Tenant for damage or injury to
property, person or business and without affecting an eviction or disturbance of Tenant’s use or
possession or giving rise to any claim for setoff or abatement of rent or affecting any of Tenant’s
obligations under this Lease: (1) upon thirty (30) days’ prior notice to change the name or street
address of the Building; (2) to install and maintain signs on the exterior and interior of the
Building (subject in all respects to Tenant’s signage rights hereunder); (3) to designate and
approve window coverings to present a uniform exterior appearance; (4) to retain at all times and
to use in appropriate instances, pass keys to all locks within and to the Premises; (5) to approve
the weight, size, or location of heavy equipment, or articles within the Premises; (6) to change
the arrangement and location of entrances of passageways, doors and doorways, corridors, elevators,
stairs, toilets and public parts of the Building or Property; (7) to regulate access to telephone,
electrical and other utility closets in the Building and to require use of designated contractors
for any work involving access to the same; (8) if Tenant has vacated the Premises during the last
six (6) months of the Lease Term, to perform additions, alterations and improvements to the
Premises in connection with a reletting or anticipated reletting thereof without being responsible
or liable for the value or preservation of any then existing improvements to the Premises and
without effectuating a surrender or entitling Tenant to any abatement of Rent; (9) to enter the
Premises to inspect the same or to show the Premises to prospective purchasers, mortgagees, tenants
(during the last twelve months of the Lease Term) or insurers, or to clean or make repairs,
alterations or additions thereto, provided that, except for any entry in an emergency situation or
to provide normal cleaning and janitorial service, Landlord shall provide Tenant with reasonable
prior notice of any entry into the Premises; and (10) to temporarily close the Premises or the
Building to perform repairs, alterations or additions in the Premises or the Building. In
exercising its rights under this Section 27, Landlord shall make commercially reasonable efforts to
avoid unreasonably interfering with Tenant’s business operations in the Premises.


 


26









 





28. Roof Usage. Landlord shall provide Tenant the nonexclusive right to install up to
two (2) satellite dishes (the “Rooftop Equipment”) on the roof of the Building in accordance with
plans and specifications, and installation methods, approved by Landlord and provided that the
satellite dishes do not damage or impair the integrity of the roof, or invalidate the roof
warranty, or impair or cause interference with the operation of any machinery, equipment or
apparatus of the Building or other tenants of the Building. Landlord shall have no responsibility
and shall not be obligated to provide any utilities, including, but not limited to, electricity or
other power for the operation of the Rooftop Equipment. Tenant shall pay for the cost of all
utility services, including the installation,
separate metering or submetering, if necessary. Tenant shall reimburse Landlord for any of
Landlord’s consultants or contractors reasonable fees incurred in connection with the review of any
drawings, plans and specifications and the Rooftop Equipment installation. Tenant shall be
responsible for the payment of any costs Landlord may incur as a result of the cancellation of any
roof warranty or the denial of any claim under any roof warranty due to the installation or
operation of the Rooftop Equipment, unless (i) Landlord had previously approved the installation
method, (ii) Landlord had previously approved the contractor performing such installation, and
(iii) the warrantor of the roof (if still in effect) approved the installation. Tenant shall
operate and maintain the Rooftop Equipment, at its own cost and expense, in good working order and
condition and free from any hazard to person and property. Tenant shall not place any load upon the
roof of the Building, which will exceed the load per square foot, which the roof was designed to
carry. Upon termination of Tenant’s use or right to the use of the Rooftop Equipment by expiration
of time or otherwise, Tenant shall, at its sole cost and expense, remove the Rooftop Equipment and
shall restore the roof of the Building to its condition existing prior to the installation of the
Rooftop Equipment. Tenant shall further repair, at its sole cost and expense, any damage or
destruction caused by the removal of the Rooftop Equipment. Restoration and repair hereby required
to be performed by Tenant shall be performed, at Tenant’s cost, by a contractor reasonably approved
by Landlord or under the supervision of a representative of Landlord (the cost for whom shall be
paid by Landlord and Landlord shall be reimbursed by Tenant) at such time and in such manner that
is satisfactory to Landlord.





29. On-Site Amenities. Intentionally omitted.





30. Miscellaneous.





A. If any term or provision of this Lease, or the application thereof, shall, to any
extent, be invalid or unenforceable, the remainder of this Lease, or the application of such
term or provision, shall not be affected thereby, and each term and provision of this Lease
shall be valid and enforced to the fullest extent permitted by law.





B. Tenant agrees not to record this Lease or any short form or memorandum hereof;
provided, however, that this provision shall not be deemed to preclude Tenant from filing
information with respect to or a copy of this Lease in connection with any report required
under applicable Federal or State law, including without limitation the requirements of the
Securities and Exchange Commission.





C. This Lease and the rights and obligations of the parties hereto shall be interpreted,
construed, and enforced in accordance with the laws of the state in which the Building is
located.





D. The term “Force Majeure” shall mean strikes, riots, acts of God, shortages of labor or
materials not attributable to Landlord’s failure to properly manage construction or
procurement schedules and lead-times, war, acts of terrorism, governmental laws, regulations
or restrictions, or any other cause whatsoever beyond the control of Landlord or Tenant, as
the case may be. Whenever a period of time is herein prescribed for the taking of any action
by Landlord or Tenant (other than the payment of Rent and all other such sums
of money as shall become due hereunder), such party shall not be liable or responsible for,
there shall be excluded from the computation of such period of time, any delays due to events
of Force Majeure.


 


27









 






E. Except as expressly otherwise herein provided, with respect to all required acts of
Tenant, time is of the essence of this Lease.





F. Landlord shall have the right to transfer and assign, in whole or in part, all of its
rights and obligations hereunder and in the Building and Property referred to herein, and in
such event and upon such transfer Landlord shall be released from any further obligations
hereunder, and Tenant agrees to look solely to such successor in interest of Landlord for the
performance of such obligations; provided, however no such transfer or assignment shall
relieve Landlord from personal liability for the representations, warranties and undertakings
set forth in Section 5.B of this Lease.





G. Tenant and Landlord hereby represent to each other that it respectively has dealt
directly with and only with the Broker as a broker in connection with this Lease. Landlord and
Tenant hereby indemnify and
hold each other harmless against any loss, claim, expense or liability with respect to
any commissions or brokerage fees claimed by any broker or finder other than the Broker on
account of the execution and/or renewal of this Lease due to any action of the indemnifying
party. Notwithstanding anything to the contrary hereinabove, Landlord shall be solely
responsible for the payment of any fees or commissions of the Broker as well as any broker
employed or utilized by Great Lakes REIT or any other former owner of the Building to the
extent any fee or commission is due any such other broker.





H. If there is more than one Tenant, or if Tenant as such is comprised of more than one
person or entity, the obligations hereunder imposed upon Tenant shall be joint and several
obligations of all such parties. All notices, payments, and agreements given or made by, with
or to any one of such persons or entities shall be deemed to have been given or made by, with
or to all of them.





I. Tenant acknowledges that the financial capability of Tenant to perform its obligations
hereunder is material to Landlord and that Landlord would not enter into this Lease but for
its belief, based on its review of Tenant’s financial statements, that Tenant is capable of
performing such financial obligations. Tenant hereby represents, warrants and certifies to
Landlord that its financial statements previously furnished to Landlord fairly represent the
financial condition of Tenant. In the event of a proposed sale or other transfer, financing or
refinancing by Landlord of the Building, where the proposed lender or purchaser requests
tenant financial statements, within twenty (20) days after Landlord’s request, Tenant shall
deliver to Landlord the most current year-end financial statements of Tenant and any guarantor
of this Lease.


 


28









 






J. Except as otherwise expressly set forth in this Lease, the expiration of the Lease
Term, whether by lapse of time or otherwise, shall not relieve Tenant from Tenant’s
obligations accruing prior to the expiration of the Lease Term, and such obligations shall
survive any such expiration or other termination of the Lease Term.




K. Landlord and Tenant understand, agree and acknowledge that (i) this Lease has been
freely negotiated by both parties; and (ii) in any controversy, dispute or contest over the
meaning, interpretation, validity, or enforceability of this Lease or any of its terms or
conditions, there shall be no inference, presumption, or conclusion drawn whatsoever against
either party by virtue of that party having drafted this Lease or any portion thereof.





L. The headings and titles to the paragraphs of this Lease are for convenience only and
shall have no affect upon the construction or interpretation of any part hereof. The term
“including” shall be deemed to mean “including without limitation”.




31. No Offer. Landlord has delivered a copy of this Lease to Tenant for Tenant’s
review only, and the delivery hereof does not constitute an offer to Tenant or an option. This
Lease shall not be effective until an original of this Lease executed by both Landlord and Tenant
and an original Guaranty, if applicable, executed by each Guarantor is delivered to and accepted by
Landlord, this Lease has been approved by Landlord’s mortgagee, if required, and the condition to
the effectiveness of this Lease under Section 5.C, D, E and F have been satisfied or waived in
writing.




32. Entire Agreement. This Lease, including the Exhibits attached hereto, constitutes
the entire agreement between the parties hereto with respect to the subject matter of this Lease
and supersedes all prior agreements and understandings between the parties related to the Premises,
including all lease proposals, letters of intent and similar documents. Tenant expressly
acknowledges and agrees that Landlord has not made and is not making, and Tenant, in executing and
delivering this Lease, is not relying upon, any warranties, representations, promises or
statements, except to the extent that the same are expressly set forth in this Lease. This Lease
may be modified only by a written agreement signed by Landlord and Tenant. Landlord and Tenant
expressly agree that there are and shall be no implied warranties of merchantability, habitability,
suitability, fitness for a particular purpose or of any other kind arising out of this Lease, all
of which are hereby waived by Tenant, and that there are no warranties which extend beyond those
expressly set forth in this Lease.



33. Limitation of Liability. Notwithstanding anything to the contrary in this Lease,
Landlord shall have personal liability for the representations, warranties and undertakings set
forth in Section 5.B of this Lease. Any other liability of Landlord under this Lease shall be
limited solely to its interest in the Property, and in no such other event shall any personal
liability be asserted against Landlord, its members, or their respective members, partners,
shareholders, officers, directors, agents or employees, in connection with this Lease nor shall any
recourse be had to any other property or assets of Landlord, its members, or their respective
members, partners, shareholders, officers, directors, agents or employees. In no event shall either
Landlord or Tenant be liable for consequential or punitive damages as a result of a breach or
default under or otherwise in connection with this Lease, other than and excepting those payable as
expressly set forth in Paragraph 23 of this Lease.


 


29









 





[SIGNATURE PAGE FOLLOWS]







 


30









 







IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the day and year first
above written.




	 	 	 	 	 	 	 	 	 	 	 	 	 
	LANDLORD:	 	TENANT:	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	TRANSWESTERN GREAT LAKES,
L.P., a Delaware limited partnership	 	PROQUEST COMPANY, a

Delaware corporation	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	By:	 	Transwestern Great Lakes GP, L.L.C., 	 	By:	 	/s/ Kevin Gregory	 	 
	 	 	a Maryland limited liability company,	 	 	 	Name:	 	Kevin Gregory	 	 
	 	 	 its general partner	 	 	 	Title:	 	Senior Vice President	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	By:	 	Transwestern Investment Company,
L.L.C., its authorized agent	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	By:	 	/s/ Scott A. Tausk	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 
	 

	 	Name:
	 	Scott A. Tausk	 	 	 	 	 	 	 	 
	 

	 	Title:
	 	Managing Director	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	WITNESS/ATTEST	 	WITNESS/ATTEST	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	By:	 	/s/ William Harvey IV	 	By:	 	/s/ Christine E. Kaliszuk	 	 
	 	 	 	 	 	 	 	 	 
	 

	 	Name:
	 	William Harvey IV
	 	 	 	Name:
	 	Christine E. Kaliszuk	 	 
	 

	 	Title:
	 	Sr. V. P.
	 	 	 	Title:
	 	Paralegal	 	 






 


31









 





EXHIBIT A-1 




OUTLINE AND LOCATION OF PREMISES 




see attached



 


A-1









 




EXHIBIT A-1









 


 









 







EXHIBIT A-2 




LEGAL DESCRIPTION OF PHASE II LAND 




Included in the legal description of the Phase I Land attached hereto as Exhibit A-3



 


A-2









 





EXHIBIT A-3 




LEGAL DESCRIPTION OF PHASE I LAND 



Commencing at the Southwest corner of Section 4, T3S, R6E, City of Ann Arbor, Washtenaw, County,
Michigan, thence N 01°53’00“W 250.00 feet along the West line of said Section and the centerline of
State Road; thence N87°09’00” E 51.25 feet to a point on the Easterly right of way line of State
Road, said point being the POINT OF BEGINNING; thence N 02°03’20” W 429.50 feet along said right of
way line; thence N 87°01’00” E 150/04 feet; thence N 01°53 W W 133.16 feet; thence S 87°01’00” W
150.44 feet; THENCE N 02°03’20” W 51.40 feet along said right of way line; thence N 87°01’00” E
502.45 feet; thence N 01°53’00” W 178.60 feet; thence N 87°01’00” E 635.25 feet; thence S01°53’00”
983.39 feet along the Westerly right of way line of Boardwalk Drive to a point on the Northerly
right of way line of Eisenhower Parkway; thence along said right of way line in the following
courses; S 85°32’50” W 426.81 feet, S 87°09’00” W240.19 feet, N 02°51 W W 25.00 feet and S
87°09’00” W 310.01 feet; thence N 01°53’00” W 175.00 feet; thence S 87°09’00” W 158.75 feet to the
POINT OF BEGINNING. Being a part of the Southwest  1/4 of the Southwest 14 of Section 4,
T3S, R6E, City of Ann Arbor, Washtenaw County, Michigan.



TOGETHER WITH easements and rights of way appurtenant, as of record.




 


A-3









 






EXHIBIT B 




RULES AND REGULATIONS 



The following rules and regulations shall apply, where applicable, to the Premises, the Building,
the parking areas associated therewith (if any), the Property and the appurtenances thereto:




1. Sidewalks, entrances, passageways, courts, corridors, vestibules, halls, elevators and
stairways in and about the Building shall not be obstructed nor shall objects be placed against
glass partitions, doors or windows which would be unsightly from the Building’s corridors or from
the exterior of the Building.




2. Plumbing, fixtures and appliances shall be used for only the purpose for which they were
designed and no foreign substance of any kind whatsoever shall be thrown or placed therein. Damage
resulting to any such fixtures or appliances from misuse by Tenant or its agents, employees or
invitees, shall be paid for by Tenant and Landlord shall not in any case be responsible therefor.




3. Any sign, lettering, picture, notice or advertisement installed within the Premises which
is visible from the public corridors within the Building shall be installed in such manner, and be
of such character and style, as Landlord shall approve, in writing in its reasonable discretion. No
sign, lettering, picture, notice or advertisement shall be placed on any outside window or door or
in a position to be visible from outside the Building. No nails, hooks or screws (except for
customary artwork or wall hangings) shall be driven or inserted into any part of the Premises or
Building except by Building maintenance personnel, nor shall any part of the Building be defaced or
damaged by Tenant.



4. Tenant shall not place any additional lock or locks on any door in the Premises or Building
without Landlord’s prior written consent. A reasonable number of keys to the locks on the doors in
the Premises shall be furnished by Landlord to Tenant at the cost of Tenant, and Tenant shall not
have any duplicate keys made. All keys and passes shall be returned to Landlord at the expiration
or earlier termination of the Lease.




5. Tenant shall refer all contractors, contractors’ representatives and installation
technicians to Landlord for Landlord’s supervision, approval and control before the performance of
any contractual services. This provision shall apply to all work performed in the Building
including, but not limited to installation of telephones, telegraph equipment, electrical devices
and attachments, doors, entranceways, and any and all installations of every nature affecting
floors, walls, woodwork, window trim, ceilings, equipment and any other physical portion of the
Building. Tenant shall not waste electricity, water or air conditioning. All controls shall be
adjusted only by Building personnel.


 


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6. Movement in or out of the Building of furniture or office equipment, or dispatch or receipt
by Tenant of any merchandise or materials which require the use of elevators, stairways, lobby
areas, or loading dock areas, shall be restricted to hours designated by Landlord. Tenant must seek
Landlord’s prior approval by providing in writing a detailed listing of such
activity. If approved by Landlord, such activity shall be under the supervision of Landlord and
performed in the manner stated by Landlord. Landlord may prohibit any article, equipment or any
other item from being brought into the Building. Tenant is to assume all risk for damage to
articles moved and injury to persons resulting from such activity. If any equipment, property
and/or personnel of Landlord or of any other tenant is damaged or injured as a result of or in
connection with such activity, Tenant shall be solely liable for any and all damage or loss
resulting therefrom.




7. All corridor doors, when not in use, shall remain closed. Tenant shall cause all doors to
the Premises to be closed and securely locked before leaving the Building at the end of the day.




8. Tenant shall keep all electrical and mechanical apparatus owned by Tenant free of
vibration, noise and airwaves which may be transmitted beyond the Premises.




9. Canvassing, soliciting and peddling in or about the Building or Property is prohibited.
Tenant shall cooperate and use its best efforts to prevent the same.




10. Tenant shall not use the Premises in any manner which would overload the standard heating,
ventilating or air conditioning systems of the Building.




11. Tenant shall not utilize any equipment or apparatus in such manner as to create any
magnetic fields or waves which adversely affect or interfere with the operation of any systems or
equipment in the Building or Property.




12. Bicycles and other vehicles are not permitted inside or on the walkways outside the
Building, except in those areas specifically designated by Landlord for such purposes.




13. Tenant shall not operate or permit to be operated on the Premises any coin or token
operated vending machine or similar device (including, without limitation, telephones, lockers,
toilets, scales, amusements devices and machines for sale of beverages, foods, candy, cigarettes or
other goods), except for those vending machines or similar devices which are for the sole and
exclusive use of Tenant’s employees.




14. Tenant shall utilize the termite and pest extermination service designated by Landlord to
control termites and pests in the Premises. Except as included in Basic Costs, Tenant shall bear
the cost and expense of such extermination services.




15. Tenant shall not open or permit to be opened any window in the Premises. This provision
shall not be construed as limiting access of Tenant to any balcony adjoining the Premises.



16. To the extent permitted by law, Tenant shall not permit picketing or other union activity
involving its employees or agents in the Building or on the Property, except in those locations and
subject to time and other constraints as to which Landlord may give its prior written consent,
which consent may be withheld in Landlord’ sole discretion.


 


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17. Tenant shall comply with all applicable laws, ordinances, governmental orders or
regulations and applicable orders or directions from any public office or body having jurisdiction,
with respect to the Premises, the Building, the Property and their respective use or occupancy
thereof. Tenant shall not make or permit any use of the Premises, the Building or the Property,
respectively, which is directly or indirectly forbidden by law, ordinance, governmental regulation
or order, or direction of applicable public authority, or which may be dangerous to person or
property.




18. Tenant shall not use or occupy the Premises in any manner or for any purpose which would
injure the reputation or impair the present or future value of the Premises, the Building or the
Property; without limiting the foregoing, Tenant shall not use or permit the Premises or any
portion thereof to be used for lodging, sleeping or for any illegal purpose.




19. All deliveries to or from the Premises shall be made only at times, in the areas and
through the entrances and exits designated for such purposes by Landlord. Tenant shall not permit
the process of receiving deliveries to or from the Premises outside of said areas or in a manner
which may interfere with the use by any other tenant of its premises or any common areas, any
pedestrian use of such area, or any use which is inconsistent with good business practice.




20. Tenant shall carry out Tenant’s permitted repair, maintenance, alterations, and
improvements in the Premises only during times agreed to in advance by Landlord and in a manner
which will not interfere with the rights of other tenants in the Building.




21. Landlord may from time to time adopt appropriate systems and procedures for the security
or safety of the Building, its occupants, entry and use, or its contents. Tenant, Tenant’s agents,
employees, contractors, guests and invitees shall comply with Landlord’s reasonable requirements
thereto.




22. Subject to the signage rights of Tenant under this Lease, Landlord shall have the right to
prohibit the use of the name of the Building or any other publicity by Tenant that in Landlord’s
opinion may tend to impair the reputation of the Building or its desirability for Landlord or its
other tenants. Upon written notice from Landlord, Tenant will refrain from and/or discontinue such
publicity immediately.




23. Neither Tenant nor any of its employees, agents, contractors, invitees or customers shall
smoke in any area designated by Landlord (whether through the posting of a “no smoking” sign or
otherwise) as a “no smoking” area. In no event shall Tenant or any of its employees, agents,
contractors, invitees or customers smoke in the hallways or bathrooms of the Building or at the
entrances to the Building. Landlord reserves the right to designate, from time to time, additional
areas of the Building and the Property as “no smoking” areas and to designate the entire Building
and the Property as a “no smoking” area.




[END OF EXHIBIT B]





 


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EXHIBIT C 




PAYMENT OF BASIC COSTS 




A. During each calendar year, or portion thereof, falling within the Lease Term, Tenant shall
pay to Landlord as Additional Rent hereunder Tenant’s Pro Rata Share of Basic Costs (as defined
below) and Tenant’s Pro Rata Share of Taxes (as defined below) for the applicable calendar year.
Prior to the Commencement Date, or as soon as practical thereafter, and prior to January 1 of each
calendar year during the Lease Term, or as soon as practical thereafter, Landlord shall make a good
faith estimate of Basic Costs and Taxes for the applicable full or partial calendar year and
Tenant’s Pro Rata Share thereof. On or before the first day of each month during such calendar
year, Tenant shall pay Landlord, as Additional Rent, a monthly installment equal to one-twelfth of
Tenant’s Pro Rata Share of Landlord’s estimates of Basic Costs and Taxes. Landlord shall have the
right from time to time during any such calendar year to reasonably revise the estimate of Basic
Costs and/or Taxes for such year and provide Tenant with a revised statement therefor (provided,
however, Landlord agrees that Landlord shall not issue a revised statement more than once for Basic
Costs and once for Taxes in any calendar year), and thereafter the amount Tenant shall pay each
month shall be based upon such revised estimate. If Landlord does not provide Tenant with an
estimate of the Basic Costs and/or Taxes by January 1 of any calendar year, Tenant shall continue
to pay a monthly installment based on the previous year’s estimate until such time as Landlord
provides Tenant with an estimate of Basic Costs and/or Taxes for the current year. Upon receipt of
such current year’s estimate, an adjustment shall be made for any month during the current year
with respect to which Tenant paid monthly installments of Additional Rent based on the previous
year’s estimate. Tenant shall pay Landlord for any underpayment within thirty (30) days after
Landlord’s written demand. Any overpayment of Additional Rent shall, at Tenant’s option, be
refunded to Tenant or credited against the installment(s) of Additional Rent next coming due under
the Lease. Any amount paid by Tenant based on any estimate shall be subject to adjustment pursuant
to Paragraph C below when actual Basic Costs or actual Taxes, as applicable, are determined.




B. If the Parking Deck is at any time made available for use by tenants of the Phase I
Building or future tenants (other than Tenant), if any, of the Building, Tenant shall be given a
credit against Tenant’s Pro-Rata Share of Basic Costs for the portion of Basic Costs reasonably
attributable to and reflecting such shared use of the Parking Deck.



C. As soon as is practical following the end of each calendar year during the Lease Term,
Landlord shall furnish to Tenant a statement of Landlord’s actual Basic Costs and Taxes for the
previous calendar year. If for any calendar year the Additional Rent collected for the prior year,
as a result of Landlord’s estimate of Basic Costs or Taxes, is in excess of Tenant’s actual Pro
Rata Share of Basic Costs or Taxes, as applicable, for such prior year, then Landlord shall refund
to Tenant any overpayment (or at Tenant’s option apply such amount against Additional Rent due or
to become due hereunder). Likewise, Tenant shall pay to Landlord, within thirty (30) days after
Landlord’s written demand, any underpayment with respect to the prior year whether or not the Lease has terminated prior to receipt by Tenant of a statement for
such underpayment, it being understood that this clause shall survive the expiration of the Lease.



 


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D. “Basic Costs” shall mean all reasonable direct and indirect costs, expenses paid and
disbursements of every kind (subject to the limitations set forth below), which Landlord incurs,
pays or becomes obligated to pay in each calendar year in connection with operating, maintaining,
repairing, owning and managing the Building, the Parking Deck and the Property. Basic Costs shall
include, without limitation, insurance premiums for insurance which is the obligation of Landlord
under Section 13, and deductibles paid with respect to claims thereunder, and the amortized cost of
capital improvements made to the Building or the Property which are (i) primarily for the purpose
of reducing operating expense costs or otherwise improving the operating efficiency of the Property
or Building (but the amortized amount included in Basic Costs each year shall not exceed the amount
of such savings); or (ii) required to comply with any laws, rules or regulations of any
governmental authority not in existence as of the date of this Lease or a requirement of Landlord’s
insurance carrier. The cost of such capital improvements shall be amortized over the useful life
thereof, as reasonably determined by Landlord in accordance with generally accepted accounting
principles, consistently applied, and shall, at Landlord’s option, include interest at a rate that
is reasonably equivalent to the interest rate that Landlord would be required to pay (assuming,
for this purpose, that Landlord is creditworthy and the interest rate reflects such
creditworthiness) to finance the cost of the capital improvement in question as of the date such
capital improvement is performed.




E. Basic Costs shall not include the following:




	 	(1)	 	leasing and sale commissions, fees and expenses;







	 	(2)	 	wages, benefits and other compensation for any employee above the grade of building manager;







	 	(3)	 	advertising, marketing and promotional costs and expenses;







	 	(4)	 	legal, accounting and auditing fees;







	 	(5)	 	costs and expenses reimbursed to Landlord, such as by insurance or
condemnation proceeds or by a warranty claim or from another tenant;







	 	(6)	 	costs and expenses incurred to correct, repair, or remedy any breach
of any representation or warranty of Landlord in this Lease;







	 	(7)	 	costs and expenses attributable to any grossly negligent or willful
act or omission of Landlord or any of Landlord’s agents;







	 	(8)	 	costs of environmental compliance and remediation and related environmental response costs;







	 	(9)	 	amounts paid to any affiliate of Landlord for services rendered or
goods furnished to the extent the amount paid exceeds the amount that
would have been paid for goods and services of a similar quality if procured in an
arms-length transaction from a non-affiliate of Landlord;





 


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	 	(10)	 	principal, interest, points, late charges and service charges on
borrowed money, and all collection costs related thereto;







	 	(11)	 	non-cash expense items, such as depreciation and amortization;







	 	(12)	 	costs and expenses incurred to renovate, improve or build-out tenant spaces at the Property;







	 	(13)	 	rentals and other charges under ground leases;







	 	(14)	 	costs and expenses incurred to correct or repair defects in the
design, construction or installation of any part of the Common Areas,
Building or Property;







	 	(15)	 	land acquisition and development costs and expenses;







	 	(16)	 	management fees in excess of three percent (3%) of aggregate gross
rental income paid by Building tenants;







	 	(17)	 	costs and expenses incurred for repairs, replacements and
restorations occasioned by any casualty loss or occurrence, or
condemnation (or conveyance in lieu thereof);







	 	(18)	 	fines and penalties incurred due to a violation by Landlord or
another Building tenant of applicable laws, rules, regulations, codes
and ordinances;







	 	(19)	 	interest, penalties and late charges applicable to Basic Costs to the
extent attributable to Landlord’s failure to pay such expenses on a
timely basis;







	 	(20)	 	allowances and concessions to Building tenants and other users;







	 	(21)	 	Landlord’s income tax or Michigan single business tax, and any other
tax measured by the income or revenues of Landlord from the Building;







	 	(22)	 	costs and expenses billed to Tenant by Landlord or any third party
and paid for by Tenant or such third party, or otherwise directly
paid by Tenant or any third party;







	 	(23)	 	costs and expenses incurred to cause the Building, Property or Common
Areas to comply with applicable laws, statutes, rules, regulations,
ordinances or codes, including without limitation, the Americans with
Disabilities Act, in existence as of the date of this Lease;





 


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	 	(24)	 	costs and expenses incurred to repair or replace any structural
component, interior or exterior load bearing wall, or exterior skin
of the Building, or the Building roof covering or roof structure;







	 	(25)	 	costs and expenses incurred to replace any HVAC, plumbing, electrical
or sprinkler system component, except as provided in Paragraph D
above;







	 	(26)	 	costs and expenses incurred to replace any portion of the paved area
(including asphalt, concrete, and other artificial surfaces) of the
Property;







	 	(27)	 	costs and expenses for materials or services that are for the primary
or sole benefit of a Building tenant or user other than Tenant;







	 	(28)	 	legal, space planning, construction, and other expenses incurred in
procuring tenants for the Building or renewing or amending leases
with existing tenants or occupants of the Building;







	 	(29)	 	costs of advertising and public relations and promotional costs and
attorneys’ fees associated with the leasing of the Building; and







	 	(30)	 	Taxes.






F. “Taxes” shall mean (i) all real estate taxes and assessments on the Property, the Building
or the Premises, and taxes and assessments levied in substitution or supplementation in whole or in
part of such taxes, (ii) all personal property taxes for the Building’s personal property,
including license expenses, (iii) all taxes imposed on services of Landlord’s agents and employees,
(iv) all sales, use or other tax, excluding state and/or federal income tax now or hereafter
imposed by any governmental authority upon rent received by Landlord, (v) all other taxes, fees or
assessments now or hereafter levied by any governmental authority on the Property, the Building or
its contents or on the operation and use thereof (except as relate to specific tenants), and (vi)
all reasonable costs and fees incurred in connection with seeking reductions in or refunds in Taxes
including, without limitation, any costs incurred by Landlord to challenge the tax valuation of the
Building or Property, but excluding income taxes. Estimates of real estate taxes and assessments
for any calendar year during the Lease Term shall be determined based on Landlord’s good faith
estimate of the real estate taxes and assessments. Taxes and assessments hereunder are those paid
or payable for such calendar year, as opposed to the real estate taxes and assessments accrued with
respect to such calendar year.


 


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Notwithstanding the provisions of Paragraph F of this Exhibit C, Landlord and Tenant
acknowledge that, if and in the event an Exemption Certificate (defined below) is issued for the
Property, Tenant shall be the tax payer and shall be responsible for the payment of those Taxes
consisting of (i) all real estate taxes and assessments on the Property, the Building, the Parking
Deck or the Premises, and taxes and assessments levied in substitution or supplementation in whole
or in part of such taxes, (ii) all personal property taxes for the Building’s personal property,
including license expenses, (iii) all other taxes, fees or assessments now or hereafter levied by
any governmental authority on the Property, the Parking Deck, the Building or its contents or on the operation and use thereof. Tenant plans to petition the City for the
establishment of the leased premises under the Phase I Lease and the Property as an industrial
development district and to obtain real/personal property tax abatements pursuant to an industrial facilities exemption certificate (“Exemption
Certificate”). In connection therewith, the parties acknowledge that the Exemption Certificate
would be issued in Tenant’s name, and that accordingly Tenant will be required to pay the foregoing
identified portions of the Taxes. From and after the date of issuance of the Exemption Certificate,
Tenant will be billed by the City for and will pay directly any and all such taxes or payments in
lieu thereof. If and in the event this Lease is terminated at any time prior to the Commencement
Date, Landlord shall forthwith reimburse Tenant for the full amount of all such taxes and other
payments borne by Tenant under the Exemption Certificate through the date of termination. If the
Parking Deck is at any time, made available for use by tenants of the Phase I Building or future
tenants (other than Tenant), if any, of the Building, Landlord shall reimburse Tenant, upon
request, for the portion of Taxes and other payments borne by Tenant and reasonably attributable to
and reflecting such shared use of the Parking Deck.




G. Tenant shall have the right to inspect, at reasonable times and in a reasonable manner,
during the thirty (30) day period following the delivery of Landlord’s statement of the actual
amount of Basic Costs, such of Landlord’s books of account and records as pertain to and contain
information concerning such costs and expenses in order to verify the amounts thereof. Tenant
agrees that any information obtained during an inspection by Tenant of Landlord’s books of account
and records shall be kept in confidence by Tenant and its agents and employees and shall not be
disclosed to any other parties, except to Tenant’s attorneys, accountants and other consultants. If
Tenant shall not dispute any item or items included in the determination of Basic Costs for a
particular Lease Year by delivering a written notice to Landlord generally describing in reasonable
detail the basis of such dispute within sixty (60) days after the statement for such year was
delivered to it, Tenant shall be deemed to have approved such statement. During the pendency of any
dispute over Basic Costs, Tenant shall pay, under protest and without prejudice, Tenant’s Pro Rata
Share of Basic Costs as calculated by Landlord. Tenant shall bear the cost of its accountants or
other consultants employed by Tenant undertaking any review of Basic Costs; provided, however, that
in the event the review reveals an overcharge (by error or otherwise) of actual (as distinguished
from estimated) Basic Costs in excess of five percent (5%) of the total Basic Costs, Landlord shall
pay the reasonable out of pocket cost of the review (up to the amount of the overcharge).



H. Solely for the benefit of Tenant and not for the benefit of any other tenant or
third-party, “Operating Expenses” (as defined below) for any calendar year (the “Applicable
Calendar Year”) following the calendar year in which the Commencement Date occurs (the
“Commencement Year”), commencing with the second Applicable Calendar Year, shall not exceed an
amount determined by increasing the Operating Expenses for the first Applicable Calendar Year (the
“Base Expenses”) at the rate of four percent (4%) per year cumulative interest through the
Applicable Calendar Year. Notwithstanding the foregoing, relative to the fifth Applicable Calendar
Year, and the Applicable Calendar Year falling every five years thereafter, the Base Expenses shall
be adjusted to be an amount equal to the product of (x) the average of the actual Operating
Expenses for the three prior Applicable Calendar Years, multiplied by (y) 1.0816. “Operating
Expenses” shall mean the Basic Costs, exclusive of (i) Taxes, or (ii) Basic Costs incurred by virtue of an increased scope of services mutually agreed to
by Landlord and Tenant (in advance of implementation). Such limitation on Operating Expenses shall
not limit or otherwise affect Tenant’s obligations regarding the payment of any other component of
Rent under this Lease.


 


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I. Notwithstanding anything to the contrary contained in this Lease, the Basic Costs charged
to Tenant during the Commencement Year shall not exceed $7.20 per rentable square foot per year
(such amount to be prorated based on the number of days in the Commencement Year).




[END OF EXHIBIT C]



 


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EXHIBIT D 




WORK LETTER 





	1.	 	Promptly following execution of this Lease, Landlord shall promptly
commence, and thereafter diligently proceed to completion,
construction of the Building, the Parking Deck, the connector to the
Phase I Building, and all other improvements to be located or utilized
in connection with the Phase II Land (the “Base Building Work”), all
in accordance with the site plan approved by the City on June 4, 2002
(the “Site Plan”) and the architectural drawings and specifications
therefor prepared by Wright Architects and identified on Attachment 1
attached hereto and made a part hereof (the “Base Building Plans and
Specifications”).







	 	 	Subject only to Delays (as defined below in this Work Letter) or other delays permitted under
Section 5 of this Lease, Landlord shall use good faith efforts to have the Base Building Work
(and the Landlord’s Work, below) Substantially Completed no later than the Target Commencement
Date. No change in or variation from the Site Plan or the Base Building Plans and
Specifications shall be permitted without Tenant’s prior written approval, which approval
shall not be unreasonably withheld, conditioned or delayed.







	 	 	Landlord shall enter into a direct contract for Base Building Work with a general contractor
selected by Landlord and Tenant after soliciting bids therefor in accordance with the
requirements of the Michigan Economic Growth Authority Act (“MEGA”) and any reasonable
additional requirements imposed by the City in connection with Tenant’s application for tax
exemption. In particular, but without limitation, Landlord acknowledges that MEGA requires
that (i) a competitive bid process for the construction of the Base Building Work must be
followed; (ii) the process must be open to all Michigan residents and firms; (iii) Landlord
may not discriminate against any contractor on the basis of its affiliation or nonaffiliation
with any collective bargaining organization; (iv) a good faith effort must be used to employ
or contract with Michigan residents in connection with the Base Building Work; and (v) a good
faith effort must be made to utilize Michigan-based suppliers and vendors in connection with
the Base Building Work. In addition, Landlord shall have the right to select and/or approve of
any subcontractors used in connection with the Base Building Work, subject to all of the above
MEGA requirements and any applicable requirements imposed by the City.





 


D-1









 






	2.	 	This Work Letter shall set forth the obligations of Landlord and
Tenant with respect to the preparation of the Premises for Tenant’s
occupancy, including the initial Leasehold Improvements. All
improvements described in this Work Letter (other than and expressly
excluding the Base Building Work) to be constructed in and upon the
Premises by Landlord are hereinafter referred to as “Landlord’s Work.”
Landlord and Tenant acknowledge that Plans (hereinafter defined) for
Landlord’s Work have not yet been prepared and, therefore, it is
impossible to determine the exact cost of Landlord’s Work at this
time. Accordingly, Landlord and Tenant agree that Landlord’s
obligation to pay for the cost of Landlord’s Work shall be limited to $31.00 per rentable square foot
of the Premises (the “Construction Allowance”) and that Tenant shall be
responsible for the cost of Landlord’s Work to the extent that it exceeds the
Construction Allowance. Tenant shall be permitted to utilize up to $5.00 per
rentable square foot of the Premises of the Construction Allowance for
planning, construction documents, furniture, fixtures and equipment or other
related items. Landlord shall reimburse Tenant for such costs within thirty
(30) days of receipt from Tenant of paid invoices therefor. Landlord shall
enter into a direct contract for Landlord’s Work with a general contractor
selected by Landlord and Tenant after soliciting bids therefor in accordance
with the requirements of the Michigan Economic Growth Authority Act (“MEGA”)
and any additional requirements imposed by the City in connection with Tenant’s
application for tax exemption. In particular, but without limitation, Landlord
acknowledges that MEGA requires that (i) a competitive bid process for the
construction of Landlord’s Work must be followed; (ii) the process must be open
to all Michigan residents and firms; (iii) Landlord may not discriminate
against any contractor on the basis of its affiliation or nonaffiliation with
any collective bargaining organization; (iv) a good faith effort must be used
to employ or contract with Michigan residents in connection with the Landlord’s
Work; and (v) a good faith effort must be made to utilize Michigan-based
suppliers and vendors in connection with Landlord’s Work. If Tenant elects to
require competitive bidding for Landlord’s Work as set forth above, any delays
in execution by Landlord of the construction contract for Landlord’s Work with
Landlord’s general contractor beyond September 1, 2005, solely attributable to
the requirement of competitive bidding shall constitute Tenant Delay as set
forth hereinbelow. If Tenant elects to waive the requirement of competitive
bidding of Landlord’s Work, delays in execution of the said contract shall not
constitute a Tenant Delay. In addition, Landlord shall have the right to select
and/or approve of any subcontractors used in connection with Landlord’s Work,
subject to all of the above MEGA requirements and any applicable requirements
imposed by the City.







	 	 	Tenant shall be entitled to utilize any unused portion of the Construction Allowance as an
additional Construction Allowance for Phase I tenant improvements under the Phase I Lease, and
any unused portion of the Construction Allowance not utilized for Phase I tenant improvements
in connection with the Phase I Lease but in no event in excess of $3.00 per rentable square
foot of the Premises of the Construction Allowance, shall be (i) paid in cash to Tenant, or
(ii) applied as a credit against the next installments) of Base Rent payable under this Lease
after determination of the amount of such unused Construction Allowance.







	 	 	Tenant shall pay Landlord, within fifteen (15) days after Landlord’s written demand, a
construction management fee equal to one percent (1%) of the cost of Landlord’s Work
(excluding any architectural and engineering fees and fixturing costs) to compensate Landlord
for its construction management services in connection with Landlord’s Work. Landlord reserves
the right to deduct such fee from the Construction Allowance; provided however, in no event
shall such construction management fee exceed one percent (1%) of the amount of the
Construction Allowance (which amount may be adjusted due to reallocation of unused
Construction Allowance for the Phase I Lease pursuant to the preceding paragraph).





 


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	3.	 	Space planning, architectural and any necessary and required
engineering (mechanical, electrical and plumbing) drawings for
Landlord’s Work shall be prepared by Wright Architects (“Landlord’s
Architect”) at Tenant’s sole cost and expense, subject to funding
through the Construction Allowance as set forth above. The space
planning, architectural and mechanical drawings are collectively
referred to herein as the “Plans”. The Plans shall be based upon that
certain Space Plan to be approved by Landlord and Tenant, and prepared
by Wright Architects.







	4.	 	Tenant shall deliver to Landlord any information reasonably requested
by Landlord and shall deliver to Landlord Tenant’s approval or
disapproval of any preliminary or final layout, drawings, or plans
within five (5) Business Days after written request. Any disapproval
shall be in writing and shall set forth in reasonable detail the
reasons for such disapproval. Landlord shall have ten (10) Business
Days from its receipt of Tenant’s disapproval within which to revise
the layout, drawings or plans to address the matters identified by
Tenant to Tenant’s satisfaction. Tenant and Landlord’s Architect shall
devote such time in consultation with Landlord and Landlord’s engineer
as may be required to provide all information Landlord deems necessary
in order to enable Landlord’s Architect and engineer to complete, and
obtain Tenant’s written approval of the Plans for Landlord’s Work by
not later than June 1, 2005 (the “Plans Due Date”). The Plans Due Date
shall be extended for any failure by Landlord to so timely respond to
Tenant’s objections and provide revised layouts, drawings or plans as
set forth above. In the event that Landlord is fully and timely
responsive to Tenant’s objections as set forth above, including
providing revised drawings, layouts or plans as the case may be to
Tenant, and Tenant nevertheless fails to approve the Plans by the
Plans Due Date (as the same may be extended for delays by Landlord),
Tenant shall be responsible for one (1) day of Delay (as hereinafter
defined) for each day during the period beginning on the day following
the Plans Due Date and ending on the date Tenant approves the Plans.
Neither the approval of the Plans nor the supervision of Landlord’s
Work by Landlord shall constitute a representation or warranty by
Landlord as to the accuracy, adequacy, sufficiency and propriety of
the Plans or the quality of workmanship or compliance of Landlord’s
Work with applicable law.







	5.	 	Prior to commencing any construction of Landlord’s Work, Landlord
shall submit to Tenant a written estimate setting forth the
anticipated cost of Landlord’s Work, including but not limited to
labor and materials, architect’s fees, contractor’s fees and permit
fees. Within three (3) Business Days thereafter, Tenant shall either
notify Landlord in writing of its approval of the cost estimate, or
specify its objections thereto in reasonable detail and any desired
changes to the proposed Landlord’s Work. In the event Tenant notifies
Landlord of such objections and desired changes, Tenant shall work
with Landlord in good faith to alter the scope of Landlord’s Work in
order to reach a mutually acceptable alternative cost estimate, and
Tenant shall not be responsible for any Delay resulting therefrom.





 


D-3









 






	6.	 	If Landlord’s estimate and/or the actual cost of Landlord’s Work shall
exceed the maximum Construction Allowance (such excess being herein
referred to as the “Excess Costs”), Tenant shall pay to Landlord such
Excess Costs upon Substantial Completion of Landlord’s Work and presentation of an invoice therefor by Landlord.
Notwithstanding the foregoing, if such Excess Costs are in excess of $10.00 per
rentable square foot of the Premises, then Tenant shall pay to Landlord such
Excess Costs within ten (10) days after Tenant’s receipt of Landlord’s invoice
together with all necessary and/or appropriate back-up documentation of such
Excess Costs. Landlord shall not be required to proceed with Landlord’s Work
until Tenant pays such Excess Costs and any delay in the completion of
Landlord’s Work due to a delay by Tenant in making such payment shall be deemed
a Delay pursuant to this Lease. The statements of costs submitted to Landlord
by Landlord’s contractors shall be conclusive for purposes of determining the
actual cost of the items described therein. Excess Costs constitute Rent
payable pursuant to the Lease, and the failure to timely pay same constitutes
an Event of Default under the Lease.







	7.	 	If Tenant shall request any changes to Landlord’s Work that are
approved by Landlord (“Change Orders”), Landlord shall have any
necessary revisions to the Plans prepared, and Tenant shall reimburse
Landlord on demand for the cost of preparing such revisions. Landlord
shall notify Tenant in writing of the estimated increased cost, if
any, which will be chargeable to Tenant by reason of such Change
Orders, which increased cost shall be included in the calculation
determining whether there are Excess Costs under Paragraph 6 above.
Tenant shall, within three (3) Business Days after receiving
Landlord’s estimate of the cost of the Change Order, notify Landlord
in writing whether it desires to proceed with such Change Order. In
the absence of such written authorization within said time period,
Landlord shall have the option to continue work on the Premises
disregarding the requested Change Order, or Landlord may elect to
discontinue work on the Premises until it receives notice of Tenant’s
decision, in which event Tenant shall be responsible for any Delay in
completion of Landlord’s Work resulting therefrom.







	8.	 	Following approval of the Plans, and the payment by Tenant of the
required portion of the Excess Costs, if any, Landlord shall promptly
commence and thereafter diligently pursue to completion Landlord’s
Work in accordance with the approved Plans, so long as no default
shall occur under the Lease, and in any event shall Substantially
Complete Landlord’s Work on or before the Target Commencement Date,
subject only to Delays (as defined below). Landlord shall notify
Tenant upon Substantial Completion of Landlord’s Work.







	9.	 	If Landlord shall be delayed in Substantially Completing Landlord’s
Work as a result of the occurrence of any of the following (a
“Delay”); provided, however, that in any such case (i) Landlord shall
provide written notice of and back-up documentation supporting such
claim of Delay promptly (but in no event later than 5 days) after the
occurrence of the Delay, and (ii) an actual delay in Substantial
Completion occurs as a result of such Delay:







	 	(a)	 	Tenant’s failure to timely furnish information to complete the Plans,
or otherwise in accordance with this Work Letter, or to respond to any
request by Landlord for any approval or information within any time
period prescribed, or if no time period is prescribed, then within
three (3) Business Days of such request; or





 


D-4









 






	 	(b)	 	Tenant’s request after initial approval of the Base Building Plans and
Specifications or the Plans, as the case may be, for different
materials, finishes or installations that have long lead times after
having first been informed by Landlord that such materials, finishes
or installations will cause a Delay; or







	 	(c)	 	Changes in any plans and specifications requested by Tenant if
Landlord advises Tenant such changes shall cause a Delay and Tenant
elects to proceed with such changes; or







	 	(d)	 	The performance or nonperformance by a person or entity employed by on
or behalf of Tenant in the completion of any work in the Premises (all
such work and such persons or entities being subject to prior approval
of Landlord), provided that such performance or nonperformance has an
actual demonstrable effect on the schedule for Substantial Completion;
or







	 	(e)	 	Any request by Tenant that Landlord delay the completion of any
component of Landlord’s Work if Landlord advises Tenant that such
delay shall cause a Delay and Tenant elects to proceed with such
request; or







	 	(f)	 	Any breach or default by Tenant in the performance of Tenant’s
obligations under the Lease, provided that such breach or default has
an actual demonstrable effect on the schedule for Substantial
Completion; or







	 	(g)	 	Tenant’s failure to pay any amounts as and when due under this Work Letter; or







	 	(h)	 	Any delay resulting from Tenant’s having taken possession of the
Premises for any reason prior to Substantial Completion of Landlord’s
Work, if Landlord advises Tenant that such action shall cause a Delay
and Tenant elects to proceed with taking possession; or







	 	(i)	 	Any other delay chargeable to Tenant, its agents, employees or
independent contractors; provided that such delay has an actual effect
on the schedule for Substantial Completion;







then, for purposes of determining the Commencement Date, the date of Substantial
Completion shall be deemed to be the day that Landlord’s Work would have been Substantially
Completed absent any such Delay. The adjustment of the Commencement Date and, accordingly, the
postponement of Tenant’s obligation to pay Base Rent and other sums due under the Lease shall
be Tenant’s sole remedy that Tenant might otherwise have against Landlord by reason of the
Premises not being ready for occupancy by Tenant on the Target Commencement Date, except as
otherwise provided in Section 5 of this Lease. Promptly after the determination of the
Commencement Date, Landlord and Tenant shall enter into a letter agreement (the “Commencement
Letter”) on the form attached to the Lease as Exhibit F setting forth the Commencement Date,
the Expiration Date and any other dates that are affected by the adjustment of the
Commencement Date. The Commencement Letter shall identify any minor incomplete items of Landlord’s Work as reasonably determined by Landlord’s architect (the “Punchlist
Items”), which Punchlist Items Landlord shall promptly remedy. Tenant, within five (5) days
after receipt thereof from Landlord, shall execute the Commencement Letter and return the same
to Landlord.


 


D-5









 






	10.	 	All capitalized terms used in this Work Letter but not defined herein
shall have the same meanings ascribed to such terms in the Lease.







	11.	 	Tenant shall perform all work (other than Landlord’s Work) in
accordance with the terms of this Work Letter as required to put the
Premises in a condition to permit the conduct of Tenant’s business
therein and in accordance with the requirements of this Lease. When
Landlord’s Work has proceeded to the point where the work to be
performed by Tenant and the installation of Tenant’s Property in the
Premises (collectively “Tenant’s Work”) can, in the opinion of
Landlord, be commenced in accordance with good construction practice,
then Tenant shall have the right to occupy the Premises for the
purpose of performing Tenant’s Work so far as its occupancy is not
inconsistent with Landlord’s Work or any work to be done in the
Building by Landlord, subject to all the terms and condition of this
Lease (including in particular Section 9B), except that the Term of
this Lease shall not commence until the Commencement Date. Tenant
acknowledges that entry onto the Premises when the Landlord’s Work is
not Substantially Complete entails a risk of bodily injury, death, or
damage, destruction, loss or misappropriation of property. To the
extent not expressly prohibited by law, Tenant hereby assumes all such
risks for entry onto the Premises, and agrees to defend and hold
harmless Landlord (its agents, contractors, and employees) against all
costs and expenses, including reasonable attorneys’ fees in connection
therewith, arising out of any bodily injury, death, or damage,
destruction, loss or misappropriation of property related to entry
onto the Premises by Tenant or its agents, employees, contractors,
invitees or subtenants prior to such time as the Landlord’s Work is
substantially complete, except to the extent such costs or expenses
arise out of the negligence or willful misconduct of Landlord, its
contractors, subcontractors, employees, agents or representatives.
Tenant shall be solely responsible to determine at the site all
dimensions of the Premises and the Building which affect any work to
be performed by Tenant hereunder. The installation of Tenant’s
Property into the Premises shall be the sole responsibility of Tenant,
and any costs associated therewith shall be borne by Tenant. Neither
review nor approval by Landlord of any plans or specifications for
Tenant’s Work or any other work to be performed by Tenant shall
constitute a representation or warranty by Landlord that any of such
plans or specifications either (i) are complete or suitable for their
intended purpose, or (ii) comply with applicable laws, ordinances,
codes and regulations.











 


D-6









 











	12.	 	If the actual Phase II Project Costs are less than Twenty Million
Dollars ($20,000,000.00), Tenant shall be entitled to receive the
difference in such amounts (the “Savings”). The Savings shall be paid
to Tenant in the form of (i) cash payment to Tenant, and/or (ii)
abatement of Base Rent and/or Additional Rent, and/or (iii) reduction
of Base Rent over all or any portion of the Lease Term, such
determination to be made in Landlord’s sole discretion. Within ninety
(90) days after the Commencement Date, Landlord shall deliver to
Tenant a statement in sufficient detail summarizing the Phase II Project Costs and the Savings, if any, and in the event of a Savings, the
manner in which such Savings shall be paid to Tenant. Tenant shall have the
right to review the invoices and records of Landlord that comprise the Phase II
Project Costs.






[END OF EXHIBIT D]



 


D-7









 





ATTACHMENT 1




BASE BUILDING PLANS AND SPECIFICATIONS




See attached Development Program and Drawings



 


D-8









 





DEVELOPMENT PROGRAM

789 EISENHOWER

ANN ARBOR, MICHIGAN

November 1, 2004




Transwestern Great Lakes, L.P. (“Owner”) currently owns a 10-story office building with surface
parking on a site known as 777 Eisenhower in Ann Arbor, Michigan. Owner intends to develop an
approximately 110,000 rentable square foot, 3-story Class A office building with lower level and
two-level parking deck. The project will include a pedestrian bridge between the new building and
the existing building as well as site work, infrastructure, landscaping, and parking to accommodate
the new building and parking deck.





The Base Building design criteria and program are more specifically described below.





BUILDING





General




	 	•	 	3-story office building with full lower level







	 	•	 	Approximately 110,000 rentable square feet







	 	•	 	Raised ceiling area on the south side of 3rd floor







	 	•	 	Two-story atrium lobby







	 	•	 	Pedestrian bridge connecting 2nd floors of new and existing building







	 	•	 	Exterior design to complement the existing building







	 	•	 	ADA compliant







	 	•	 	Meet all applicable codes and regulations







	 	•	 	New building located on Lot B







	 	•	 	Office







	 	1.	 	On floors 1 — 3







	 	2.	 	Approximately 36,300 rentable square feet per floor







	 	•	 	Lower Level







	 	1.	 	Approximately 36,300 square foot floor plate







	 	2.	 	Contains cafeteria, fitness center, parking, delivery, mechanical, electrical







	 	3.	 	Approximately 15,000 square foot area (subject to City of Ann Arbor
approval) for cafeteria, fitness center, and other tenant-related uses






Facade





	 	•	 	General







	 	1.	 	Architectural precast and insulated glass on second and third floor
similar to existing building in window pattern and detail. First floor
will be treated with continuous glass storefront.







	 	2.	 	First Floor Glass — The interior will have a window sill at
approximately 2’6” above the floor. Drywall will cover the surface
from the floor to the sill. This detail eliminates the need for
perimeter baseboard heat on the first floor. This detail will not
affect the exterior. The first floor exterior will be and will appear
to be floor to ceiling glass.










 


Page 1









 





DEVELOPMENT PROGRAM

789 EISENHOWER

ANN ARBOR, MICHIGAN

November 1, 2004





	 	3.	 	Raised ceiling height on 3rd floor in center of and on the
south side building; approximately a 40’ x 30’ area adjacent to the
elevator lobby.







	 	4.	 	Entrances on north side of building with potential terrace on the south side.







	 	5.	 	Loading dock/receiving door on east end of lower level







	 	•	 	Precast







	 	1.	 	Precast color and texture/finish to approximate existing building facade







	 	2.	 	Architectural panels to accommodate 6’ x 8’ windows for the 2nd and 3rd floors







	 	3.	 	Exposed foundation wall to be clad with precast panels or concrete
finished to “match” precast panels







	 	4.	 	Decorative cornice around the 3rd floor and on the raised ceiling area







	 	5.	 	Caulking — Caulking at precast panel joints and at the intersection of
the precast panels and window systems. Caulking will be two lines of
continuous silicone-based sealant at each joint.







	 	6.	 	Flashing — Pre-finished brake formed sheet metal







	 	•	 	Glass Storefront & Curtainwall







	 	1.	 	Glass storefront on the ground level and glass curtain wall at center
area of building on north and south facades beyond the roof line







	 	2.	 	6’ x 8’ windows for punched window openings







	 	3.	 	Bronze color glass to match existing building







	 	4.	 	Insulated, “low e” energy efficient windows







	 	5.	 	Mullion color to be compatible with design







	 	•	 	Exterior Doors







	 	1.	 	Revolving door at front entrance







	 	2.	 	One pair of insulated glass and aluminum frame doors with hardware at
the front and rear entrances







	 	3.	 	Main entrance to be Handicap Accessible







	 	4.	 	Additional exterior doors as required to meet code







	 	5.	 	Doors, glass and framing to match and be part of storefront system






Causeway





	 	•	 	Exterior Wall — Glass exterior wall with drywall columns







	 	•	 	Ceiling







	 	1.	 	Suspended acoustical tile







	 	2.	 	Space above ceiling available for conduit to connect voice/data between 777 and 789







	 	•	 	Floor — Concrete surface ready to receive floor covering







	 	•	 	Fire Protection — Fire and smoke separation doors at each end of the
causeway held open by magnetic devices. Doors will close upon signal
from the fire alarm. Doors will be metal and paint-ready.










 


Page 2









 





DEVELOPMENT PROGRAM

789 EISENHOWER

ANN ARBOR, MICHIGAN

November 1, 2004




Floor Plates





	 	•	 	Approximately 36,300 square feet per floor, including LL — 3rd floor







	 	•	 	Building width of approximately 113 feet glass line to glass line







	 	•	 	40’-30’-40’ x 30’ structural bay spacing.







	 	•	 	Finished concrete slab






Structural





	 	•	 	Spread footing foundation or as otherwise specified by the structural engineer







	 	•	 	Reinforced concrete slab for lower level.







	 	•	 	Steel frame with 5 1/4” composite (concrete filled) metal
decking at supported office floors (east portion of first floor,
second and third floors)







	 	•	 	Steel framing and with composite decking (concrete filled) at the roof
under the Air Handing Units for noise and vibration control.







	 	•	 	Approximately 12’-8” floor-to-floor height to allow for 9’ finished ceiling height.







	 	•	 	Increased height in the raised ceiling area on the 3rd floor to allow for approximately 12’ ceiling height







	 	•	 	100 pound/square foot Live Loading at the supported slabs






Roof





	 	•	 	Single-ply, fully adhered EPDM membrane roof







	 	•	 	Insulated







	 	•	 	15-year warranty






Electrical





	 	•	 	277/480 Volt, 3 Phase, 4 Wire electrical service delivered to building







	 	•	 	3,000 amp Main service: 1,200 amp house power and 1,800 amp tenant power







	 	•	 	Tenant power to each floor for lighting, mechanical, and power. 600
amp, 277/480 Volt feed delivered to electrical closet on each floor. A
225 Kva transformer to step down power and distribution panel provided
in electrical closet.







	 	•	 	No building UPS generator is provided. Transwestern will specify
location outside of the building and near the electrical room for
Tenant to install and to connect a generator at its cost.










 


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DEVELOPMENT PROGRAM

789 EISENHOWER

ANN ARBOR, MICHIGAN

November 1, 2004




Voice/Data





	 	•	 	Single conduit into building for Tenant to pull voice/data cable.
Landlord will work with Tenant to provide sleeve for future use.
Additional sleeve at Tenant’s cost.






Mechanical





	 	•	 	Four 80-ton roof-mounted mechanical units with economizers and
variable drives for economical operation







	 	•	 	Power and gas supplied to roof top Air Handling Units







	 	•	 	Interconnected air handing units to provide redundant cooling for tenant spaces







	 	•	 	Medium pressure duct loop provided on each office floor







	 	•	 	HVAC system controls package will accommodate after-hours cooling on partial floor areas







	 	•	 	AHU’s set on sound attenuation isolator curbs and located over toilet
rooms to minimize sound and vibration






Fire Protection





	 	•	 	Main branch system and alarm per building code requirements.







	 	•	 	Firesafing between facade and floor slab as required






Plumbing





	 	•	 	Operating base building toilets, lavatories, water fountains, and janitor’s closet







	 	•	 	Water line and vent stack available on each floor for tenant to
access. Both are located in the restroom core. Tenant will be able to
extend water line and vent stack to other areas on the floor.







	 	•	 	Foundation — Gravity-driven drainage system







	 	•	 	Basement — Interior drainage in basement







	 	•	 	Sump Alarm — Not required due to gravity drainage







	 	•	 	Oil Separator — Installed to sewer system if required by code.






Waterproofing





	 	•	 	Basement Walls — Waterproof membrane included







	 	•	 	Elevator Sump Pit — Damp proofing







	 	•	 	Upper Level Bathrooms — Floor drain supplied. No waterproofing necessary.






Elevators





	 	•	 	2 — 3,500 Ib four stop hydraulic passenger elevators







	 	•	 	Elevators to run from the basement to the third floor







	 	•	 	One elevator available for freight use. It will be equipped with
buttons/hooks upon which Tenant can hang protective pads.









 


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DEVELOPMENT PROGRAM

789 EISENHOWER

ANN ARBOR, MICHIGAN

November 1, 2004





	 	•	 	Security — Elevators will be equipped to accept card reader system at
Tenant’s cost. Card reader system also at Tenant’s cost.







	 	•	 	Finishes







	 	1.	 	Wood finish wall panels







	 	2.	 	Ceramic tile floors







	 	3.	 	Stainless steel ceiling with down lights







	 	4.	 	Brushed stainless steel doors (interior and exterior)






Loading Dock & Lower Level Entrance





	 	•	 	Loading Dock







	 	1.	 	Located at the southeast corner of the lower level







	 	2.	 	At Sidewalk level







	 	3.	 	Double doors in a 6’0” wide by 7’0” high opening







	 	•	 	Lower Level Entrance







	 	1.	 	8’0”x10’0” manual lift door






Building Lobby





	 	•	 	Two story atrium lobby finished with a combination of natural stone,
carpet inlays, brushed stainless steel, and wood paneling as shown in
Wright Architect’s drawings:







	 	1.	 	SK-102604-A1







	 	2.	 	SK-102604-A2







	 	3.	 	SK-102604-B1







	 	4.	 	SK-102604-B2







Quantities and prices for this lobby are specified as Exhibit I to this Development
Program.



Building Security System — None provided by Landlord.




Interior Finishes





	 	•	 	Broom-clean floor throughout with completed bathrooms and exit stairs







	 	•	 	Bathrooms







	 	1.	 	Per code on each floor







	 	2.	 	Finishes







	 	•	 	Walls







	 	1.	 	Wet Walls behind Fixtures — Ceramic tile; all floors (2,880 sf @ $9.00 psf)







	 	2.	 	Walls — Vinyl wall covering; all floors ($1.50 psf)







	 	•	 	Floors — Porcelain ceramic tile; all floors (2,880 sf @ $14.00 psf)










 


Page 5









 





DEVELOPMENT PROGRAM

789 EISENHOWER

ANN ARBOR, MICHIGAN

November 1, 2004





	 	•	 	Ceilings — Drywall; all floors. Note: Transwestern recommends drywall
coves over the toilets and soffits over the lavatories. Then, install
2’x4’ lay in tile in the remaining ceiling to provide ease of access
and maintenance. Price is the same for both options. (2,880 sf @ $1.75
psf)







	 	•	 	Lights — Can lights in drywall ceiling ($225 per light fixture)







	 	•	 	Counter Tops — Granite; all floors (168 If @ $80.00 If)







	 	•	 	Sinks — Under mount vitreous china (24 @ $80 per sink)







	 	•	 	Faucets and Accessories — $7,600







	 	1.	 	Faucets — Manual faucets (24 @ $50 per unit).







	 	2.	 	Accessories — Toilet paper dispensers, soap dispensers, recessed paper
towel dispenser/waste receptacle, grab bars, sanitary napkins
dispensers, stainless steel framed mirrors, electric hand dryers







	 	•	 	Toilets — Toilets with manual flush ($175 per unit)







	 	•	 	Toilet Partitions — Floor mounted metal partitions; all floors ($7,800)







	 	•	 	Exit Stairs — Interior walls and stairs painted







	 	•	 	Drywall







	 	1.	 	Elevator Lobbies — Walls and ceilings taped and sanded for LL,
2nd, 3rd floors — finished and painted at first
floor lobby







	 	2.	 	Perimeter Walls — Taped and sanded. Windows framed finished with sills.







	 	3.	 	Stairwells & Core — Walls facing into the tenant space are taped and sanded







	 	4.	 	Base Building Finish — Level 4 for those areas which will be painted







	 	•	 	Sound Attenuation







	 	1.	 	Toilet room, fire stair, and elevator shaft walls built to structure(deck) above







	 	2.	 	Toilet room, fire stair, and elevator shaft walls filled with batt insulation










 


Page 6









 




EXHIBIT I

2-STORY LOBBY FINISHES (1)

DEVELOPMENT PROGRAM

789 EISENHOWER




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	SQ FT	 	 	COST PSF	 	 	TOTAL COST	 	 	 
	1st FLOOR
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	FLOOR
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	GRANITE
	 	 	707	 	 	$	25.00	 	 	$	17,675	 	 	Polished Granite — Main & Elev Lobby
	CARPET
	 	 	693	 	 	$	2.78	 	 	 	1,927	 	 	$25.00 per Sq Yd
	WALLS
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	WOOD PANELS
	 	 	1,320	 	 	$	20.00	 	 	 	26,400	 	 	10 ft high Oak or Maple panels
	CEILING
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	DRYWALL COVES

	 	 	 	 	 	 	 	 	 	 	4,500	 	 	Coves at walls and elevator lobby 
Painted Drywall
 Downlights washing wood panels
	2nd FLOOR FRAMING COVER
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	PAINTED DRYWALL
	 	 	 	 	 	 	 	 	 	 	5,000	 	 	At Opening
	2nd FLOOR
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	STAINLESS STEEL
& GLASS RAILING
(2)
	 	 	98	 	 	$	250.00	 	 	 	24,500	 	 	3 sides of opening to curtainwall
 Double Baluster System*
	DRYWALL CEILING
	 	 	1,200	 	 	$	5.50	 	 	 	6,600	 	 	Painted with downlights
	HIGH INTENSITY
DOWN LIGHTS
	 	 	 	 	 	 	 	 	 	 	6,000	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	TOTAL SUBCONTRACTOR
PRICE
	 	 	 	 	 	 	 	 	 	 	92,602	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	OLIVER/HATCHER FEE
	 	 	 	 	 	 	5.50      	%	 	 	5,093	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	TOTAL COST IN BUDGET
	 	 	 	 	 	 	 	 	 	 	97,695	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 






NOTES





	 	1	 	Quantities and pricing based on Wright Architect drawings:

	 
	 	 	 	SK-102604-A1

SK-102604-A2

SK-102604-B1

SK-102604-B2







	 	2	 	Railing website www.artec-rail.com










 


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EXHIBIT E 




ADDITIONAL PROVISIONS 




1. Parking. Tenant, and its employees, guests and invitees, shall have the exclusive right
to utilize the enclosed lower level parking (approximately 37 spaces) to be constructed within the
Building, as well as the non-exclusive right to use the Parking Deck (700 spaces). The parties
acknowledge that the required parking ratio for the Premises is based on four (4) spaces per 1,000
rentable square feet, or an aggregate for the Premises under this Lease of 441. Tenant agrees that
surplus parking spaces in the Parking Deck over those required for the Premises will be utilized by Tenant, and other tenants in the Phase I Building, to fulfill a portion of the parking
requirements under the Phase I Lease.



2. Option to Renew.



A. Tenant shall have the option (but shall not be required) to extend the Lease Term with
respect to all (but not less than all) of the Premises for two (2) additional periods of five (5)
years, each (the “Extension Term(s)”). Tenant may elect to exercise such option(s) by written
notice received by Landlord not less than eighteen (18) months prior to the expiration of the Lease
Term, or the first Extension Term, as the case may be, time being of the essence for the giving of
such notice. During the Extension Term(s), the Lease will continue on the terms and conditions set
forth herein, other than the Base Rent, which shall be adjusted to the current “Market Rental Rate”
for the Premises as of the date the applicable Extension Term is to commence with appropriate
increases each year thereafter.




B. Landlord shall advise Tenant of the Market Rental Rate for the applicable Extension Term
within twenty (20) days after the earlier of (i) a request therefore from Tenant, or (ii)
Landlord’s receipt of Tenant’s notice exercising a renewal option. Tenant’s failure to timely make
such request shall not extend the date upon which Tenant must give notice of its exercise of the
option to renew. Tenant shall have twenty (20) days from the receipt of Landlord’s notice to either
accept or dispute Landlord’s determination of the Market Rental Rate. In the event that Tenant
disputes Landlord’s determination, Tenant shall so notify Landlord and advise Landlord of Tenant’s
determination of the Market Rental Rate for the Renewal Term. If, after engaging in good faith
negotiations, Landlord and Tenant cannot agree upon the Market Rental Rate within thirty (30) days
after Landlord’s receipt of Tenant’s notice of objection to Landlord’s determination of the Market
Rental Rate, the “Dispute Resolution Mechanism” described in subparagraph C below shall apply.


 


E-1









 





C. The Dispute Resolution Mechanism shall be as follows: no later than fifteen (15) days after
the end of the 30-day period described in subparagraph B above, Landlord and Tenant shall jointly
appoint as arbitrator a commercial real estate broker licensed in Michigan with a minimum of five
(5) years experience in the applicable office market. If Landlord and Tenant cannot agree on an acceptable arbitrator, Landlord and Tenant shall each choose, within an
additional fifteen (15) days thereafter, its own arbitrator who meets the qualifications described
above. The arbitrators shall then jointly select, within an additional ten (10) days, an arbitrator
to serve as the arbitrator hereunder. If either Landlord or Tenant fails to choose its own
arbitrator within said fifteen (15) day period, then the arbitrator chosen by the other shall
resolve the dispute. Within ten (10) days after appointment (whether mutually by the parties, by
default of one party to choose an arbitrator, or by selection by the two arbitrators), Landlord and
Tenant shall each submit to the arbitrators) in writing its good faith estimate of the Market
Rental Rate for the Extension Term. Within ten (10) days after receipt of the last of the
determinations, the arbitrators) shall choose either Landlord’s or Tenant’s determination of Market
Rental Rate. The cost of the arbitrator(s) shall be borne by the party whose determination of the
Market Rental Rate was not selected by the arbitrator.



D. Tenant’s exercise of the foregoing option to renew is subject to the conditions that (i)
the Lease is in full force and effect, (ii) Tenant is not in default hereunder beyond any
applicable notice or cure period at the time of notification or at any time after notification and
through commencement of the Renewal Term, (iii) neither the Premises nor any part thereof have been
sublet (other than a Permitted Transfer), (iv) Tenant has not assigned the Lease (other than a
Permitted Transfer), (v) Tenant is an occupant of the Premises under this Lease and intends to
continue to use the Premises itself, and (vi) that both at the time of notification and
commencement there has been no material adverse change in the financial condition of the Tenant
since the date of the Lease, as reasonably determined by Landlord.




E. For purposes of this Lease, “Market Rental Rate” shall mean the rental, as of the date for
which such Market Rental Rate is being calculated, per annum per rentable square foot, for lease
renewals for comparable space of comparable size, which Landlord is offering or prepared to offer
for renewals in good faith at that time to third parties for a similar term for such other space in
the Building, as well as in other comparable buildings within a five (5) mile radius of the
Property, taking into account prevailing market conditions.



F. Landlord shall have no obligation to make improvements, decorations, repairs, alterations
or additions to the Premises as a condition to Tenant’s obligations to pay Rent during the
Extension Term(s) unless otherwise agreed to by the parties at the time the amendment set forth
below is executed, other than those repairs, maintenance and/or replacements as may otherwise be
the responsibility of Landlord under this Lease. In the event that Tenant exercises the renewal
option(s) set forth herein, Landlord and Tenant agree to enter into an amendment to the Lease
incorporating the applicable Extension Term and the Annual and Monthly Base Rent applicable thereto
within sixty (60) days following the exercise of the applicable renewal option, but in no event
shall a delay in the full execution of such amendment nullify Tenant’s exercise of the option to
renew.


 


E-2









 





3. Lower Level Space.




A. Subject to and upon the terms set forth in this Lease, in addition to the Premises, Tenant
shall also lease from Landlord and Landlord shall lease to Tenant during the Lease Term the Lower
Level Space. Commencing on the Commencement Date of this Lease, but following the Free Rent Period,
Tenant shall pay Landlord an annual rental rate of $12.00 per square foot, escalating two percent
(2%) per Lease Year (the “Lower Level Rental Rate”) for the use of the Lower Level Space, and
without any obligation to pay Additional Rent for the Lower Level Space. The Lower Level Space
shall not be utilized in the calculation of the Rentable Area in the Premises, or Tenant’s Pro Rata
Share. The Lower Level Rental Rate shall be paid monthly in advance simultaneously with the payment
of Base Rent. At all times during the term of the Lease, Tenant shall be directly responsible for
the payment of all electrical and other utility services to the Lower Level Space.




B. Landlord shall provide up to but not in excess of $20.00 per square foot in the Lower Level
Space (“Lower Level Allowance”) for Tenant’s use for the purpose of performing improvements and
alterations to the Lower Level Space, provided that the Lower Level Allowance shall only apply to
those portions of the Lower Level Space for which Landlord or Tenant has received City approvals
for occupancy. No work may be performed prior to Landlord’s written approval of such work and/or
the detailed plans of such work, if necessary and available. Any contractors performing work in the
Lower Level Space that are not contracted through Landlord shall be subject to Landlord’s prior
approval. If the cost of such work to the Lower Level exceeds the amount of the Lower Level
Allowance, Tenant shall be directly responsible for said excess amount or shall pay to Landlord
said excess amount within ten (10) days of Tenant’s receipt of Landlord’s statement of such excess
costs.




C. Except as otherwise provided herein, all of the terms and provisions of the Lease shall
also apply to the Lower Level Space as if it were part of the Premises.




D. The terms and conditions of this Paragraph 3 are conditioned on Landlord or Tenant
receiving the necessary City approvals for the use and occupancy of the Lower Level Space, or
portions thereof. Tenant shall be obligated to pay the Lower Level Rental Rate as of the
Commencement Date, but only for those portions of the Lower Level Space for which Landlord or
Tenant has received City approvals for occupancy. Landlord and Tenant shall use commercially
reasonable efforts to obtain City approvals for the use and occupancy of the Lower Level Space on
the terms set forth herein. The area of Lower Level Space so leased hereunder, from time to time,
may be re-measured at the request of either party, and verified by the other party.




[END OF EXHIBIT E]



 


E-3









 





EXHIBIT F 




COMMENCEMENT LETTER 




	 	 	 	 	 
	Date

	 	 	 	 
	 
	 	 	 	 
	Tenant

	 	 	 	 
	Address

	 	 	 	 
	 
	 	 	 	 
	 	 	 







			
	Re:	 	Commencement Letter with respect to that certain Lease dated                      by and between
                                        , as Landlord, and                                         , a(n)                     , as Tenant,
for a Rentable Area in the Premises of                      square feet on the                      floor of the Building located at
                                        ,                     , ______.






Dear                    :




In accordance with the terms and conditions of the above referenced Lease, Tenant hereby
accepts possession of the Premises and agrees as follows:





The Commencement Date of the Lease is                                         .





The Expiration Date of the Lease is                                         .





Tenant shall pay the following amounts as Base Rent for the Premises:





[Insert rent schedule with dates]




Landlord agrees to complete the work in the Premises identified in the punchlist jointly
prepared by Landlord and Tenant dated                     . Tenant accepts
possession of the Premises subject to Landlord’s obligation to complete the work identified on the
punchlist.




Please acknowledge your acceptance of possession and agreement to the terms set forth above by
signing all three (3) copies of this Commencement Letter in the space provided and returning two
(2) fully executed copies of the same to my attention.




Sincerely,




XXXXXXXXX

Property Manager




Agreed and Accepted:




TENANT:




	 	 	 	 	 
	By:
	 	 	 	 
	 

	 

	 	 
		Name:
	 	 	 
	 

	 	 

	 	 
		Title:
	 	 	 
	 

	 	 

	 	 







 


F-1











 




FIRST AMENDMENT TO LEASE




THIS FIRST AMENDMENT TO LEASE (“First Amendment”) is made as of November 16, 2005, by and between
TRANSWESTERN GREAT LAKES, L.P., a Delaware limited partnership (“Landlord”), and PROQUEST COMPANY,
a Delaware corporation (“Tenant”).



WHEREAS, Landlord and Tenant are parties to a written lease dated November 10, 2004 (the
“Original Lease”), as modified by that certain letter agreement dated March 8, 2005 (collectively,
the “Lease), for the lease of approximately 310,369 rentable square feet in the to-be-constructed
office building located at 789 Eisenhower Parkway, Ann Arbor, Michigan (the “Building”); and



WHEREAS, Landlord and Tenant now desire to amend the Lease on the terms and conditions
hereinafter set forth.



NOW, THEREFORE, in consideration of the mutual covenant and conditions hereinafter contained,
Landlord and Tenant hereby agree as follows:



1. Commencement Date. Section l.H of the Original Lease is hereby deleted and the
following is hereby inserted in its place:



“H. “Commencement Date” shall mean the earlier of:




(a) the date which is thirty (30) days following the date on which the
Premises have been (i) Substantially Completed in accordance with the Work
Letter, and (ii) delivered to Tenant for Tenant’s installation of Tenant’s
Property (including without limitation installation of fixtures, equipment and
furniture); or




(b) April 2, 2006 (the “End Date”), but premised upon and only if the
“Base Building Turnover Conditions” (as described in Exhibit H-l attached to
this Lease) have been achieved in accordance with the schedule described in
Exhibit H-l; provided, however, that if (i) the Base Building Turnover
Conditions have not been achieved by the Milestone Dates described in Exhibit H-l, or (ii)
Landlord’s Work is delayed by the actions or failure to act of Landlord beyond
a reasonable period of time (a “Landlord Delay”), then in either event the End
Date shall be extended by one additional day for each day a Milestone Date has
been missed or each day of a Landlord Delay.



2. Landlord’s Work. Tenant and Landlord hereby agree that the Landlord’s Work in
the Premises under the Work Letter shall be performed by O’Neal Construction, Inc.



3. Tenant’s Termination Right. In Section 5.A(iii) of the Original Lease, the date
“July 31, 2006” is hereby deleted and the date “September 18, 2006” is inserted in its place.


 


-1-









 





4. Superseded Provisions, Sections 5.A(i), 5.D., and 5.E. of the Original Lease are
hereby deleted and shall be of no further force or effect.



5. Added Exhibit. Exhibit H-l, attached to this First Amendment, shall be and the
same hereby is deemed attached to and incorporated by reference into the Lease.



6. Payment of Excess Costs. Notwithstanding anything to the contrary contained in
Paragraph 6 of Exhibit D of the Original Lease, in lieu of paying to Landlord the Excess Costs
as provided therein Tenant shall pay to Landlord the “Rounded Excess Cost Amount” (defined
below) in five (5) equal monthly installments on or before the 15th day of
December, 2005, January, February, March and April, 2006 (the “Monthly Installments”). No later than April 30, 2006, Landlord shall furnish Tenant with an updated calculation of the Excess Costs, and (a)
if the Rounded Excess Cost Amount exceeds the actual Excess Costs, then Landlord shall refund
such difference to Tenant no later than May 15, 2006, and (ii) if the Rounded Excess Cost
Amount is less than the actual Excess Costs, then Tenant shall pay such difference to Landlord
no later than May 15, 2006. Landlord and Tenant acknowledge and agree that a further final
reconciliation may be required if not all costs of the Work are available by April 30, 2006.
The “Rounded Excess Cost Amount” shall be the amount of the Excess Cost (based upon Landlord’s
estimate of the cost of Landlord’s Work on November 18, 2005) rounded to the nearest
$100,000.00. If the scope of the Landlord’s Work shall be changed pursuant to the Work Letter
such that the Excess Costs shall be increased or decreased by more than $250,000, then the
Rounded Excess Cost Amount shall be modified accordingly, and the unpaid Monthly Installments shall also be modified so that the total of such Monthly Installments do not
exceed the adjusted Rounded Excess Cost Amount.



7. Miscellaneous.



a. This First Amendment sets forth the entire agreement between the parties
with respect to the matters set forth herein. There have been no additional oral or written
representations or agreements.



b. Except as herein modified or amended, the provisions, conditions and
terms of the Lease will remain unchanged and in full force and effect.



c. In the case of any inconsistency between the provisions of the Lease and
this First Amendment, the provision of this First Amendment will govern and control.



d. The capitalized terms used in this First Amendment will have the same
definitions as set forth in the Lease to the extent that such capitalized terms are defined
therein and not redefined in this First Amendment.


 


-2-









 





IN WITNESS WHEREOF, Landlord and Tenant have executed this First Amendment as of the day and
year first above written.



	 	 	 	 	 	 	 	 	 	 	 	 	 
	TENANT:	 	LANDLORD:	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	PROQUEST COMPANY, a	 	TRANSWESTERN GREAT LAKES,	 	 
	Delaware corporation	 	L.P., a Delaware limited partnership	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	By:	 	/s/ Todd W. Buchardt	 	By:	 	Transwestern Great Lakes GP,	 	 
	 

	 	 
	 	 	 	 	 	 	 	 	 	 
	 	 	Name: Todd W. Buchardt	 	 	 	L.L.C., a Maryland limited liability	 	 
	 	 	Title: Senior Vice President	 	 	 	company, its general partner	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	By:	 	Transwestern Investment	 	 
	 	 	 	 	 	 	Company, L.L.C., its authorized agent	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 	 	Title:
	 	 

	 	 
	 

	 	 	 	 	 	 	 	 	 	 

	 	 






	 	 	 	 	 	 	 	 	 	 	 
	WITNESS/ATTEST	 	WITNESS/ATTEST	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	/s/ Christine E. Kaliszuk
	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 

	 	Name: Christine E. Kaliszuk
	 	 	 	Name:	 	 	 	 
	 

	 	Title: Manager, Corporate Real Estate
	 	 	 	Title:
	 	 

	 	 
	 

	 	 	 	 	 	 	 	 

	 	 





 


-3-









 





EXHIBIT H-1




BASE BUILDING TURNOVER CONDITIONS





1. For purposes of this Lease, “Base Building Turnover Conditions” shall be
deemed to have been achieved when the Base Building Work in an entire first floor, second
floor
or third floor in the Building has been completed to the point that O’Neal Construction, Inc.
can
commence and is able to continuously perform, without interference by Landlord, the Landlord’s
Work on such floor in compliance with good construction practices.




2. The “Milestone Dates” for the achievement of such Base Building Turnover
Conditions, with respect to each floor are as follows:




	 	a.	 	The Milestone Date for the third floor of the Building is
November 21,
2005;







	 	b.	 	The Milestone Date for the second floor of the Building
(excluding the
bridge to the Phase I Building) is December 12, 2005; and







	 	c.	 	The Milestone Date for both the first floor and Lower Level of
the
Building is January 2, 2006.





 


-4-









 





	 	 	 	 	 
	

	 	EXHIBIT F


COMMENCEMENT LETTER
	 	777 E. Eisenhower Parkway

Suite 136

Ann Arbor, MI 48108

Phone: 734.769.3900

Fax: 734.769.4796

www.transwestern.net






April 2l, 2006




Christine Kaliszuk

ProQuest Company

777 E. Eisenhower Parkway

Suite 200

Ann Arbor, MI 48108




Re: Commencement Letter with respect to the First Amendment to Lease dated November 16,
2005 and Lease dated November 10, 2004 and modified by that certain letter agreement dated
March 8, 2005 by and between Transwestern Great Lakes, L.P., as Landlord, and ProQuest
Company as Tenant for a Rentable Area in the Premises of 111,748 square feet (to be
verified) and 19,213 rentable square feet of Lower Level space at 789 Eisenhower Parkway,
Ann Arbor, MI 48108



Dear Ms. Kaliszuk:



In accordance with the terms and conditions of the above referenced Lease, Tenant hereby
accepts possession of the Premises and agrees as follows:




The Commencement Date of the Lease is April 2, 2006.




The
Expiration Date of the Lease is April 30, 2021.




Tenant shall pay the following amounts as Base Rent for the 1st through
3rd Floors:



	 	 	 	 	 	 	 
	 	 	Annual Base Rent Per	 	 	 	Monthly Installments
	Period	 	RSF*	 	Annual Base Rent*	 	of Base Rent*
	Months 1-6
	 	$00.00
	 	$00.00
	 	$00.00
	Months 7- 12
	 	$18.75
	 	$2,095,275.00
	 	$174,606.25
	Months 13-24
	 	$19.13
	 	$2,137,739.24
	 	$178,144.94
	Months 25-36
	 	$19.51
	 	$2,180,203.48
	 	$181,683.62
	Months 37-48
	 	$19.90
	 	$2,223,785.20
	 	$185,315.43
	Months 49-60
	 	$20.30
	 	$2,268,484.40
	 	$189,040.37
	Months 61-72
	 	$20.70
	 	$2,313,183.60
	 	$192,765.30
	Months 73-84
	 	$21.12
	 	$2,360,1 17.76
	 	$196,676.48
	Months 85-96
	 	$21.54
	 	$2,407,051.92
	 	$200,587.66
	Months 97-108
	 	$21.97
	 	$2,455,103.56
	 	$204,591.96
	Months 109-120
	 	$22.41
	 	$2,504,272.68
	 	$208,689.39
	Months 121-132
	 	$22.86
	 	$2,554,559.28
	 	$212,879.94
	Months 133-144
	 	$23.31
	 	$2,604,845.88
	 	$217,070.49
	Months 145- 156
	 	$23.78
	 	$2,657,367.44
	 	$221,447.29
	Months 157-168
	 	$24.26
	 	$2,711,006.48
	 	$225,917.21
	Months 169-180
	 	$24.74
	 	$2,764,645.52
	 	$230,387.13






 




Your Partner of Choice.



 


 









 





	 	 	 	 	 
	

	 	EXHIBIT F


COMMENCEMENT LETTER (cont.)
	 	777 E. Eisenhower Parkway

Suite 136

Ann Arbor, MI 48108

Phone: 734.769.3900

Fax: 734.769.4796

www.transwestern.net






Tenant shall pay the following amounts as Rent for the Lower Level space:



	 	 	 	 	 	 	 
	 	 	 	 	 	 	Monthly Installments
	Period	 	Annual Rent Per RSF	 	Annual Rent	 	of Rent
	Months 1-6
	 	$00.00
	 	$00.00
	 	$00.00
	Months 7-180
	 	12.00
	 	$230,556.00
	 	$19,213.00
	Months 13-24
	 	12.24
	 	$235,167.12
	 	$19,597.26
	Months 25-36
	 	12.48
	 	$239,870.46
	 	$19,989.21
	Months 37-48
	 	12.73
	 	$244,667.87
	 	$20,388.99
	Months 49-60
	 	12.99
	 	$249,561.23
	 	$20,796.77
	Months 61-72
	 	13.25
	 	$254,552.45
	 	$21,212.70
	Months 73-84
	 	13.51
	 	$259,643.50
	 	$21,636.96
	Months 85-96
	 	13.78
	 	$264,836.37
	 	$22,069.70
	Months 97-108
	 	14.06
	 	$270,133.10
	 	$22,511.09
	Months 109-120
	 	14.34
	 	$275,535.76
	 	$22,961.31
	Months 121 -132
	 	14.63
	 	$281,046.48
	 	$23,420.54
	Months 133-144
	 	14.92
	 	$286,667.41
	 	$23,888.95
	Months 1 45-156
	 	15.22
	 	$292,400.76
	 	$24,366.73
	Months 157-168
	 	15.52
	 	$298,248.77
	 	$24,854.06
	Months 169-180
	 	15.83
	 	$304,213.75
	 	$25,351.15






* The Base Rent payable under this Lease is premised on Landlord’s assumption that the Phase
II Project Costs shall be at least $20,000,000.00. Landlord assumes all risk that the Phase
II Project Costs may exceed that amount. If the Phase II Project Costs are less than
$20,000,000.00, the foregoing schedule of Base Rent is subject to adjustment in accordance
with Paragraph 12 of the Work Letter.



Landlord agrees to complete the work in the Premises as identified in the punch list
jointly prepared by Landlord and Tenant; however, work is not completed due Tenant
Delay.



Please acknowledge your acceptance of possession and agreement to the terms set forth above
by signing all three (3) copies of this Commencement Letter in the space provided and
returning two (2) fully executed copies of the same to my attention.



Sincerely,



/s/ Janeen M. Robeson        

Janeen M. Robeson

Sr. Property Manager




 




Your Partner of Choice.



 


 









 





	 	 	 	 	 
	

	 	 
	 	777 E. Eisenhower Parkway

Suite 136

Ann Arbor, MI 48108

Phone: 734.769.3900

Fax: 734.769.4796

www.transwestern.net






Agreed and Accepted:



TENANT:



	 	 	 	 	 
	By:

	 	/s/ Todd W. Buchardt
 

	 	 
	Name:

	 	Todd W. Buchardt	 	 
	Title:

	 	Sr. Vice President	 	 





 



Your Partner of Choice.



 


 









 










EXHIBIT B

PAGE 1 OF 2



 


 









 









EXHIBIT B

PAGE 2 OF 2





 


 











 




EXHIBIT C




ADDITIONAL SERVICES MATRIX




[see following page]



 


 









 





	 	 	 	 	 
	Item	 	Calculation	 	Charged Amount
	 
	Security
	 	 	 	 
	Erlich Monthly Service Fee
	 	Head count percentage on on straight monthly fee of 2,251	 	 
	Erlich Badge Requests
	 	Charged at a per use rate	 	varies
	 
	 	 	 	 
	Vending
	 	 	 	 
	Aramark: Coffee Bars
	 	Head count percentage on varying supply fee	 	 
	 
	 	 	 	 
	789 Utilities
	 	 	 	 
	Electric
	 	12% of bill for both Part A and Part B Space (1)	 	varies
	Gas
	 	12% of bill for both Part A and Part B Space (1)	 	varies
	Water/Sewer
	 	12% of bill for both Part A and Part B Space (1)	 	varies
	 
	 	 	 	 
	Mailroom Services
	 	Head count percentage of varying supply fee	 	varies
	 
	 	Specific Orders - per use	 	varies
	 
	 	 	 	 
	Office Supplies
	 	Head count percentage of varying supply fee	 	varies
	 
	 	 	 	 
	Audio Conferencing
	 	Head count percentage on month’s usage	 	varies
	ATT PRI’s
	 	Head count percentage on straight monthly fee 2,748	 	 
	Verison PRI’s
	 	Head count percentage on straight monthly fee 932	 	 
	LD & 800 Usage
	 	Head count percentage on straight monthly fee 9,500	 	 
	DS3s - 789 to Zeeb
	 	Head count percentage on straight monthly fee 3,500	 	 
	OC3 - Legacy T Internet Circuit
	 	1% circuit fee on straight monthly fee 15,660	 	157.00
	OC3 - Legacy S internet Circuit
	 	1% circuit fee on straight monthly fee 13,000	 	130.00
	Sonet
	 	Head count percentage straight monthly fee 9,540	 	 






Head count percentage shall be a fraction determine on a monthly basts using the prior month’s
number of employees calculated as follows:




Numerator equals the total number of Voyager
Learning Company employees in the Leased Premises




Denominator equals the numerator plus the
total number of ProQuest LLC ernployeees in the Leased Premises and the 777 Eisenhower Parkway
facility



	 	 	 
	(1)	 	If Subtenant vacates Part A Space, the percentage of these fees shall be reduced to 2.5% to
reflect Subtenant’s usage of Part B Space in the Leased Premises