EXHIBIT 10.9
SUBLEASE AGREEMENT
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THIS SUBLEASE AGREEMENT (this "Sublease") is entered into as of the ____
day of August, 1999, by and between IMS HEALTH INCORPORATED, a Delaware
corporation, successor by merger to IMS AMERICA, LTD. ("Sublessor"), and
MULTILINK TECHNOLOGY CORPORATION, a California corporation ("Sublessee").
W I T N E S S E T H:
WHEREAS, Sublessor has heretofore entered into that certain Office Lease
Agreement with Townsend Property Trust Limited Partnership, d/b/a TPT Limited
Partnership (the "Landlord") dated February 21, 1997, (the "Master Lease"), a
true and correct copy of which (except for certain economic terms which have
been blacked out) is attached hereto as Exhibit B, whereby Sublessor agreed to
lease from the Landlord certain premises comprised of approximately 12,663
rentable square feet located on the second floor in the building known as 300
Atrium Drive, Franklin Township, New Jersey; and
WHEREAS, Sublessee desires to sublease from Sublessor the entire premises
leased by Sublessor from Landlord under the Master Lease.
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereby agree as follows:
ARTICLE 1
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DEFINITIONS
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All capitalized terms not otherwise defined in this Sublease shall have the
meanings ascribed thereto in the Master Lease.
ARTICLE 2
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DEMISE, DESCRIPTION, USE, AND TERM
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Sublessor hereby subleases to Sublessee, and Sublessee hereby subleases
from Sublessor, the entire premises leased by Sublessor from Landlord under the
Master Lease comprised of approximately 12,663 rentable square feet, as more
fully described in the Master Lease (the "Subleased Premises"), to be used only
for the purposes expressly permitted under the Master Lease and for no other
purpose, for the term (the "Sublease Term") commencing on the day immediately
following the date Sublessor notifies Sublessee that Landlord has consented to
this Sublease (the "Commencement Date") and ending at midnight on April 27, 2007
(the "Sublease Expiration Date"). Sublessor also leases to Sublessee and
Sublessee hereby subleases from
Sublessor the furniture currently used by Sublessor in the Subleased Premises
and more particularly described on Exhibit A attached hereto and incorporated
herein by reference (the "Leased Furniture"). The Leased Furniture will be in
the same condition as existed on June 10, 1999, reasonable wear and tear
excepted.
ARTICLE 3
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RENT AND SECURITY DEPOSIT
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3.1 Base Rent. Sublessee shall pay to Sublessor with respect to both the
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Subleased Premises and the Leased Furniture the following as base rent (the
"Base Rent"):
(a) for the period from the Commencement Date through and including
June 30, 2000, monthly installments of $22,001.96 each;
(b) for the period from July 1, 2000 through and including June 30,
2004, an aggregate annual amount of $264,023.55, payable in equal monthly
installments of $22,001.96 each; and
(c) for the period from July 1, 2004 through and including April 27,
2007, an aggregate annual amount of $305,178.30 payable in equal monthly
installments of $25,431.53 each.
The component of the annual Base Rent attributable to the Leased Furniture is
$12,663.00 (or $1,055.25 as to each monthly installment). All such sums are due
and payable in advance on the first day of each and every calendar month during
such term, or in the case of the first month on the Commencement Date, at the
main office of Sublessor at 660 West Germantown Pike, Plymouth Meeting,
Pennsylvania 19462, Attention: James J. O'Brien, or at such other place as
Sublessor may designate from time to time in writing. All payments shall be
without set off or deduction. Base Rent payable with respect to partial months
shall be prorated based on the number of days within such month falling within
the Sublease Term.
3.2 Operating Expenses and Real Estate Taxes. Sublessee shall be liable
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during the Sublease Term to pay to Sublessor as additional rent hereunder
Sublessor's Pro Rata Share of Operating Expenses and Taxes under the Master
Lease in accordance with the terms of the Master Lease, except as follows:
(a) for purposes of this Sublease, the "Base Year" shall be 1999
rather than 1997;
(b) for purposes of this Sublease, the "Base Tax Year" shall be 1999
rather than 1997:
(c) Sublessee shall pay to Sublessor Sublessor's Pro Rata Share (as
set forth in the Master Lease) of increased Operating Expenses and Tax
Escalations (subject to the modified Base Year and Base Tax Year set forth
herein) based on Sublessor's reasonable
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estimates of such amounts (which will be calculated based on Landlord's
estimates under Section 3(c) of the Master Lease). Sublessor will provide
Sublessee with a copy of Landlord's statement and Sublessor's calculations
of Sublessee's Pro Rata Share Operating Expense increase and Tax Escalation
charges following Sublessor's receipt of Landlord's Statement. Any
adjustments required as a result of such annual statement shall be made in
accordance with the terms of the Master Lease.
3.3 Electric Charges. Sublessee shall pay amounts required to be paid by
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Sublessor under the Master Lease for Tenant Electric usage, provided, however,
such costs shall be prorated to the extent the commencement or expiration of the
Sublease Term falls on a date other than the first and last day of the
applicable billing period for Tenant Electric under the Master Lease.
3.4 Security Deposit. Within five (5) days following Landlord's approval
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of this Sublease, but in any event prior to the date Sublessee takes possession
of the Subleased Premises, Sublessee shall deposit with Sublessor the sum of
$198,017.64 in cash (the "Security Deposit"), as security for the performance
by Sublessee of its obligations under this Sublease. Such Security Deposit as
held by Sublessor shall be deemed to constitute "cash collateral" within the
meaning of applicable Federal and State bankruptcy and insolvency laws and
regulations. In the event Sublessee defaults under this Sublease, and such
default continues beyond the notice and cure period available therefor, if any,
Sublessor, in addition to its right to recoup possession and control of the
Subleased Premises, shall have the right to take and collect the Security
Deposit as liquidated damages for Sublessee's breach in accordance with Article
12. Provided that Landlord determines on advice of counsel that the
enforceability of the liquidated damages provisions of this Sublease will not be
adversely impacted thereby, Sublessor agrees to apply a portion of the Security
Deposit from time to time to cure Sublessee's defaults hereunder which are
curable by the payment of an amount less than $5,000 for an individual default
and $50,000 for all defaults in the aggregate; provided however, that Sublessor
shall have no obligation to apply such funds if Sublessee fails to approve in
writing such application upon written request therefor by Sublessor (but
Sublessor shall have no obligation to request such approval) and provided
further that within five (5) business days of Sublessee's learning of
Sublessor's application of a portion of the Security Deposit to cure a default
by Sublessee, Sublessee shall forward to Sublessor such amounts as are necessary
to restore the Security Deposit to its full amount of $198,017.64 and failure to
do so will constitute an event of default under this Sublease without any
further notice, demand or opportunity to cure. The Security Deposit need not be
segregated by Sublessor from other funds of Sublessor and Sublessee shall not be
entitled to any interest thereon. In no event shall the Security Deposit
constitute or be deemed to constitute rent payment or rent prepayment, and, if
applied by Sublessor as contemplated hereunder, will not constitute or be deemed
to constitute a cure of Sublessee's default. Notwithstanding the foregoing,
Sublessor agrees to apply the Security Deposit as follows:
(a) Provided Sublessee has made twelve (12) consecutive monthly
payments of Base Rent and all additional rent required hereunder within the
cure periods allowed therefor hereunder and there then exists no default
hereunder or an event or circumstance which, with the giving of notice or
passage of time or both would constitute a default
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hereunder (a "Potential Default"), Sublessor agrees to apply a portion of
the Security Deposit sufficient to pay Sublessor's Base Rent due hereunder
for the month immediately succeeding such twelve consecutive month period;
(b) Provided Sublessee has satisfied subsection (a) above and
thereafter has timely made the next four (4) consecutive monthly payments
of Base Rent and all additional rent required hereunder within the cure
periods allowed therefor hereunder and there then exists no default or
Potential Default hereunder, Sublessor agrees to apply a portion of the
Security Deposit sufficient to pay Sublessor's Base Rent due hereunder for
the month immediately succeeding such four (4) consecutive month period;
(c) Provided Sublessee has satisfied subsections (a) and (b) above
and thereafter has timely made the next four (4) consecutive monthly
payments of Base Rent and all additional rent required hereunder within the
cure periods allowed therefor hereunder and there then exists no default or
Potential Default hereunder, Sublessor agrees to apply a portion of the
Security Deposit sufficient to pay Sublessor's Base Rent due hereunder for
the month immediately succeeding such four (4) consecutive month period;
(d) Provided Sublessee has satisfied subsections (a), (b) and (c)
above and thereafter has timely made the next four (4) consecutive monthly
payments of Base Rent and all additional rent required hereunder within the
cure periods allowed therefor hereunder, there then exists no default or a
Potential Default hereunder, Sublessee has executed its planned initial
public offering, and Sublessee delivers to Sublessor current financial
statements audited by an independent certified public accountant verifying
that Sublessee maintains as of the date of such financial statements a
"Current Ratio" (as that term is defined according to generally accepted
accounting principles) of 2.0 to 1, Sublessor agrees to apply a portion of
the Security Deposit sufficient to pay Sublessor's Base Rent due hereunder
for the three (3) months immediately succeeding such four (4) consecutive
month period;
(e) Provided Sublessee has satisfied subsections (a), (b), (c) and
(d) above and has achieved a credit rating of B+ or higher with Moody's
Investor Service or Standard & Poor's Rating Services, Sublessor agrees to
apply the balance of the Security Deposit against Sublessee's Base Rent
next becoming due hereunder until the Security Deposit shall have been
completely exhausted;
(f) Any obligation of Sublessor to apply the Security Deposit as
contemplated under subsections (a)-(e) above shall be limited to the extent
of the unapplied balance of the Security Deposit at the time of such
contemplated application; and
(g) Sublessee shall return the remaining unapplied balance of the
Security Deposit, if any, within thirty (30) days following the Sublease
Expiration Date so long as no default or Potential Default exists as of the
Sublease Expiration Date and Sublessee returns the Subleased Premises to
Sublessor on the Sublease Expiration Date in the condition and otherwise as
required hereunder.
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(h) In the event (i) Sublessor defaults under the Master Lease, (ii)
such default under the Master Lease is unrelated to any default by
Sublessee under this Sublease, and (iii) the Master Lease is terminated by
Landlord as a result of such default by Sublessor, Sublessor shall return
to Sublessee promptly any unapplied balance of the Security Deposit.
ARTICLE 4
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THE MASTER LEASE
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4.1 Subordinate to Master Lease. This Sublease is and shall be at all
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times subject and subordinate to the Master Lease, a true and correct copy of
which (except for certain economic terms which have been blacked out) is
attached hereto as Exhibit B. All of the terms and provisions of the Master
Lease are incorporated by reference as if fully restated herein, and Sublessee
shall be entitled to all of the benefits (including without limitation any
parking privileges), and subject to all of the conditions and obligations, of
Sublessor as tenant under the Master Lease, except as otherwise expressly
provided to the contrary herein.
4.2 Conflicts with Master Lease. The terms, conditions and respective
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obligations of Sublessor and Sublessee with respect to each other under this
Sublease shall be the terms and conditions of the Master Lease (including,
without limitation, the insurance and indemnity provisions of the Master Lease)
except for those provisions of the Master Lease which are directly contradicted
by this Sublease (i.e., base rent terms, delivery of the Premises, etc.), in
which event the terms of this Sublease shall control over the Master Lease.
Further, the terms and conditions of this Sublease shall not include and
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Sublessee shall have no rights or obligations, as applicable, with respect to
the renewal option under Section 1(g) of the Master Lease.
Subject to the foregoing, for the purposes of this Sublease, wherever in the
Master Lease the word "Landlord" or "Lessor" is used, it shall be deemed to mean
Sublessor, and wherever in the Master Lease the word "Tenant" or "Lessee" is
used, it shall be deemed to mean Sublessee. Notwithstanding the foregoing,
Sublessee acknowledges and agrees that Sublessor shall not be deemed a guarantor
of the performance by Landlord of Landlord's obligations under the Master Lease,
and Sublessee agrees to look solely to Landlord for the performance of
Landlord's obligations and Sublessor's sole obligation with respect thereto
shall be to request Landlord to perform its obligations under the Master Lease;
provided however, upon written request by Sublessee and as long as Sublessee
advances to Sublessor in cash such amounts reasonably deemed by Sublessor from
time to time to be necessary to cover the anticipated costs of causing Landlord
to perform its obligations under the Master Lease, Sublessor agrees to use
commercially reasonable efforts (short of litigation) to cause Landlord to
perform its obligations under the Master Lease. Sublessee agrees to indemnify
and hold Sublessor harmless for all costs, damages and claims suffered by
Sublessor in carrying out Sublessee's request to cause Landlord to comply with
the terms of the Master Lease, including without limitation, Sublessor's
reasonable attorneys' fees. In no event shall Sublessor be obligated to
institute any litigation or accrue any expense (other than de minimus expense)
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above amounts covered by Sublessee's cash
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advances in seeking performance by Landlord of its obligations under the Master
Lease. It is likewise agreed that Sublessor shall have no liability to Sublessee
for any default or other act of Landlord under the Master Lease and that
Sublessor shall not be obligated to provide any services to Sublessee or
otherwise perform any obligations in connection with this Sublease except as
specifically set forth herein.
4.3 Assumption of Obligations. During the term of this Sublease, Sublessee
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does hereby expressly assume and agree to perform and comply with, for the
benefit of Sublessor and Landlord, the obligations of Sublessor under the Master
Lease including, without limitation, the maintenance of the Subleased Premises,
the maintenance of insurance coverages, and compliance with all affirmative and
negative covenants. Notwithstanding the foregoing, the obligation to pay rent to
the Landlord shall be considered performed by Sublessee to the extent and in the
amount rent is paid to Sublessor in accordance with Article 3 of this Sublease.
4.4 Termination of Master Lease. If the Master Lease terminates through
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any event that is not caused by a default of Sublessee or Sublessor under this
Sublease, this Sublease shall terminate and the parties hereto shall be relieved
of any further liability or obligation under this Sublease, except that any
prepaid portion of Base Rent not yet earned by Sublessor and the Security
Deposit, to the extent not heretofore applied by Sublessor to Sublessee's
obligations under this Sublease, shall be promptly returned to Sublessee. If the
Master Lease terminates, in no event shall Sublessor be required to act beyond
its obligations as tenant in the Master Lease.
4.5 Sublessor's Representations. Sublessor represents, warrants and
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covenants as follows:
(a) Provided that Sublessee pays all Base Rent, additional rent and
other charges required under this Sublease within any applicable cure period,
Sublessor shall take such action and perform such acts as are necessary to keep
the Master Lease in full force and effect except with respect to those
obligations under the Master Lease which Sublessee has agreed to perform
hereunder. If Sublessor shall fail to perform any obligations under the Master
Lease (other than those Sublessee has agreed to perform hereunder), Sublessee,
in addition to all other available rights and remedies, shall have the right to
perform such obligations on behalf of Sublessor, including without limitation
the payment of Base Rent and Additional Rent due hereunder directly to Landlord
rather than to Sublandlord hereunder, and such action by Sublessee shall not
constitute a default under this Sublease.
(b) The Master Lease attached hereto as Exhibit B is a true and
correct copy thereof (except for certain economic terms which have been blacked
out), has not been modified except as set forth in Exhibit B, and is in full
force and effect.
(c) To Sublessor's actual knowledge there currently exists no uncured
default under the Master Lease on the part of either Landlord or Sublessor.
(d) Sublessor shall not modify the Master Lease in a manner which
would adversely affect Sublessee's rights under this Sublease without first
obtaining Sublessee's written consent.
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ARTICLE 5
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INSURANCE AND RISK OF LOSS
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5.1 Insurance Requirements. (a) All personal property belonging to
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Sublessee or to any other person, located in or about the Subleased Premises or
the surrounding building and premises, shall be at the sole risk of Sublessee or
such other person, and neither Sublessor nor its agents shall be liable for the
theft or misappropriation thereof, or for any damage or injury thereto, or for
any damage or injury to Sublessee or other persons or to any of their respective
property caused by fire, water, snow, frost, steam, heat, cold, dampness,
falling plaster, sewers or sewage, gas, odors, noise, the bursting or leaking of
pipes, plumbing, electrical wiring or equipment or fixtures of any kind, or of
any other extended coverage perils, or by any act or neglect of any other tenant
or occupant of the building, or of any other person or caused in any manner
whatsoever.
(b) Sublessee will protect, indemnify and save harmless the Landlord
and Sublessor from all losses, costs or damages sustained by reason of any act
or other occurrence causing injury or harm to any person or property whatsoever,
resulting directly or indirectly from the Sublessee's use of the Premises or any
part thereof.
5.2 Casualty. If the Premises or the building in which it is situated
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become untenantable due to fire, flood or other casualty, and if the Landlord
terminates the Master Lease, then this Sublease shall terminate. If the Landlord
does not terminate the Lease, but undertakes to repair, restore or rehabilitate
the building or the Premises, this Sublease shall continue in full force and
effect and the rent payable hereunder during the restoration period shall not be
abated unless Sublessor's rent under the Master Lease is abated. If Sublessor's
rent under the Master Lease is so abated, Sublessee's rent under this Sublease
Agreement shall be abated during the restoration period by an amount equal to
the Base Rent otherwise required to be paid under this Sublease times the
percentage of the base rent under the Master Lease for which Sublessor receives
abatement under the Master Lease. If as a result of any casualty, Sublessor has
the right to terminate the Master Lease, Sublessor agrees to carry out
Sublessee's written direction to terminate the Master Lease; provided however,
that Sublessee shall indemnify and hold Sublessor harmless from any and all
costs, losses and damage suffered by Sublessee as a result of carrying out
Sublessee's direction to terminate the Master Lease. Sublessor shall have no
obligation to pursue any such termination if such termination right is contested
by Landlord unless Sublessee advances sufficient funds determined by Sublessor
from time to time to be necessary to cover the costs of such pursuit. In no
event, however, shall Sublessor be obligated to institute any litigation or
accrue any expenses (other than de minimus expense) above amounts covered by
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Sublessee's cash advances in pursuing the termination of the Lease.
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ARTICLE 6
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WASTE AND NUISANCE
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Sublessee shall not commit, or suffer to be committed, any waste on the
Subleased Premises, nor shall it maintain, commit, or permit the maintenance or
commission of any nuisance on the Subleased Premises or use the Subleased
Premises for any unlawful purpose.
ARTICLE 7
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POSSESSION AND QUIET ENJOYMENT
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7.1 Quiet Enjoyment. Sublessor shall, on the Commencement Date, deliver to
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Sublessee possession of the Subleased Premises and, provided Sublessee fulfills
all of Sublessee's obligations hereunder in accordance with the terms hereof,
Sublessor shall secure Sublessee in the quiet enjoyment thereof against all
persons lawfully claiming the same under Sublessor during the entire Sublease
Term.
7.2 Subordination. This Sublease shall be subordinate in all respects to
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the Master Lease and shall be subordinate, at the option of either the Landlord
or Sublessor, to any mortgages or underlying land leases in accordance with the
terms of Section 14 of the Master Lease, whether placed by the Landlord upon the
building or land of which of the Subleased Premises is a part or placed by
Sublessor upon its leasehold interest. Sublessee agrees to execute a
subordination and attornment agreement consistent with the requirements of the
Master Lease, provided, however, that any such agreement must be delivered by
Sublessee to Sublessor at least five (5) days prior to the date Sublessor is
required to deliver any subordination and attornment agreement to Landlord under
the Master Lease.
7.3 Early Termination Option. Provided there then exists no default or
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Potential Default under this Sublease, Sublessor agrees to exercise Sublessor's
early termination rights under Section 1(h) of the Master Lease at the request
of Sublease in order to effect a simultaneous early termination of this Sublease
(the "Early Termination") subject to and in accordance with the following terms
and conditions:
(a) Sublessee shall provide Sublessor with written notice (the "Early
Termination Notice") of its desire to effect the Early Termination on or
before June 28, 2003;
(b) the Early Termination Notice shall be accompanied by (i) the full
cancellation payment required in connection with the early termination of
the Master Lease under Section 1(g) of the Master Lease, plus (ii) $25,326
in consideration of the early acquisition of the Leased Furniture
(collectively, the "Early Termination Consideration");
(c) Landlord shall recognize in writing the effective exercise by
Sublessor of its early termination rights under the Master Lease.
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Upon the effective Early Termination, the Sublease Expiration Date
hereunder shall be modified to the effective Early Termination date. Provided
that Sublessor provides Landlord with timely notice of its desire to terminate
the Master Lease early under Section 1(h) of the Master Lease following timely
receipt of Sublessee's Early Termination Notice and Sublessor forwards to
Landlord with such notice the Early Termination Consideration delivered by
Sublessee to Sublessor, Sublessor shall have no liability if Landlord, for any
reason, refuses to recognize the early termination of the Master Lease and in no
event shall the Early Termination be effective as to this Sublease unless and
until such early termination is acknowledged by Landlord to be effective as to
the Master Lease.
Sublessor agrees not to exercise Sublessor's early termination rights under
Section 1(h) of the Master Lease except as requested by Sublessee pursuant to an
Early Termination Notice.
ARTICLE 8
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[INTENTIONALLY DELETED]
ARTICLE 9
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SURRENDER OF LEASED PREMISES AND HOLDOVER
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9.1 Removal of Property. Sublessee shall, without demand therefor and at
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its own cost and expense, prior to the expiration or sooner termination of the
term hereof, (a) remove all property required by the Master Lease to be removed,
including the Leased Furniture acquired under Article 11 hereof, (b) repair all
damage to the Subleased Premises caused by such removal, (c) restore the
Subleased Premises to the condition it was in prior to the installation of the
property so removed, and (d) leave all improvements and fixtures in the Premises
as and if required by the Master Lease.
9.2 Surrender. Sublessee agrees to and shall, on the expiration or sooner
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termination of the Sublease Term, promptly surrender and deliver the Subleased
Premises to Sublessor without demand therefor in good condition, ordinary wear
and tear and casualty damage and repairs for which Sublessor has no
responsibility hereunder excepted.
9.3 Holding-Over. If Sublessee fails to surrender and deliver the
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Subleased Premises in accordance with this Article 9, Sublessee, in addition to
being liable to Sublessor for any loss or damage arising from such failure
(including inability to deliver the Subleased Premises to a successor subtenant
and any holdover liability of Sublessor under the Master Lease), shall be
considered a tenant at will and shall be required to pay Sublessor holdover rent
in an amount equal to one hundred fifty percent (150%) of all Base Rent,
additional rent and other amounts otherwise payable by Sublessee under this
Sublease immediately prior to the expiration of the term hereof, (b) all other
costs, including reasonable attorneys' fees, incurred by Sublessor as a direct
or indirect result of such holdover.
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ARTICLE 10
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CONDEMNATION
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The terms of the Master Lease shall apply to any taking of all or a portion
of the Subleased Premises for any public or quasi-public use under any law,
ordinance, or regulation or by right of eminent domain, or upon the sale of all
or a portion of the Subleased Premises to the condemning authority under threat
of condemnation; and this Sublease shall terminate upon any termination of the
Master Lease arising from any such taking.
ARTICLE 11
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LEASED FURNITURE
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11.1 Maintenance of Leased Property. Sublessee shall properly use and shall
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be solely responsible for the maintenance of the Leased Furniture during the
Sublease Term, and to the extent not acquired by Sublessee pursuant to Section
11.2 below, shall return possession of the Leased Furniture to Sublessor on the
Sublease Expiration Date in as good or better condition than existed on the
Commencement Date, reasonable wear and tear excepted.
11.2 Title to Leased Property. Provided that there then exists no uncured
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default under this Sublease (or Sublessor shall have waived any such default
solely in connection with the operation of this Section 11.2), title to the
Leased Furniture shall automatically vest with Sublessee on the Sublease
Expiration Date. Sublessee agrees to pay Sublessor $25,326 for the Leased
Furniture in connection with Sublessee's exercise of its Early Termination
option under Section 7.3.
ARTICLE 12
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DEFAULTS AND REMEDIES
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If Sublessee (a) shall allow the rent or any other sum of money owed by
Sublessee hereunder to be in arrears more than five (5) days after written
notice of such delinquency is given to Sublessee, or (b) shall remain in default
under the terms of the Master Lease beyond any applicable grace period set forth
herein or therein, or (c) shall remain in default under any other condition of
this Sublease for a period of thirty (30) days after written notice of such
default is given to Sublessee, or (d) should any person other than Sublessee
secure possession of the Subleased Premises or any part thereof by reason of any
receivership, bankruptcy proceedings, or other operation of law in any manner
whatsoever, Sublessor in addition to any other remedies available to Landlord
under the Master Lease or available at law or in equity, may, at its option,
without notice to Sublessee, (i) terminate this Sublease or, (ii) in the
alternative, Sublessor may re-enter and take possession of the Subleased
Premises and remove all persons and property therefrom, without being deemed
guilty of any manner of trespass, re-let the Subleased Premises or any part
thereof for all or any part of the remainder of said term to a party
satisfactory to Sublessor and the Landlord, and at such monthly rental as
Sublessor may with reasonable diligence be able to secure, and in either case
Sublessor may take and collect the Security Deposit as liquidated damages for
Sublessee's breach of this Sublease, the parties hereto
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acknowledging that actual damages arising from such default would be difficult
to determine and that the Security Deposit constitutes the parties' reasonable
estimate of such damages and not a penalty. Sublessor shall have no duty to
mitigate damages hereunder except as may be specifically required by applicable
law. The rights of Sublessor under this Article 12 are in addition to and not in
lieu of any rights and remedies available to Sublessor pursuant to the terms of
this Sublease (including those incorporated herein by reference from the Master
Lease) or otherwise available at law or in equity; provided however, that
Sublessee's affirmative election to apply the Security Deposit as liquidated
damage and recoupment of possession and control of the Subleased Premises shall
collectively be deemed Sublessor's exclusive remedy for such breach.
Sublessor and Sublessee further agree that the Security Deposit held by
Sublessor represents cash collateral (as such term is used and interpreted
under applicable State and Federal bankruptcy and insolvency laws) securing
Sublessee's obligations under this Sublease.
Except as otherwise expressly set forth herein, all rights and remedies of
Sublessor under this Sublease shall be cumulative, and none shall exclude any
other right or remedy at law. Such rights and remedies may be exercised and
enforced concurrently and whenever and as often as occasion therefor arises.
ARTICLE 13
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[INTENTIONALLY DELETED]
ARTICLE 14
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ASSIGNMENT AND SUBLEASE
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Notwithstanding any rights Sublessor may have as tenant under the Master
Lease, without the prior written consent of Landlord and Sublessor, which
consent may be withheld in their sole discretion, Sublessee shall not pledge,
assign or convey this Sublease or any interest hereunder, allow any transfer
hereof or any lien upon Sublessee's interest by operation of law, sublet the
Subleased Premises or any part thereof, or permit the use or occupancy of the
Subleased Premises or any part thereof by anyone other than Sublessee; provided
however, if Sublessee executes its planned initial public offering and achieves
a credit rating of B+ or higher with Moody's Investor Service or Standard &
Poor's Rating Services, Sublessor agrees not to unreasonably withhold it consent
to a proposed assignment or sublease. The restrictions set forth in this Article
14 are in addition to and not in lieu of any restrictions on assignment and
subletting, including transfer of ownership interests in Sublessee and its
constituent parts, set forth in the Master Lease.
11
ARTICLE 15
----------
MISCELLANEOUS
-------------
15.1 Notices. All notices to be given under this Sublease shall be given
-------
either personally, by a reputable commercial overnight courier service (such as
Federal Express and UPS), or by certified or registered mail, return receipt
requested, addressed to the proper party as follows:
Sublessor: IMS Health Incorporated
660 West Germantown Pike
Plymouth Meeting, Pennsylvania 19462
Attention: James J. O'Brien
with a copy to:
IMS Health Incorporated
200 Nyala Farms
Westport, Connecticut 06880
Attention: Director of Global Real Estate
Sublessee: Multilink Technology Corporation
2601 Ocean Park Boulevard
Suite 108
Santa Monica, California 90405
Attention: Chief Executive Officer
Notice shall be deemed given and received on the date indicated on the return
receipt therefor. In the event the notice is refused or cannot be delivered due
to a change of address for which no notice has been provided in accordance with
this Section 15.1, such notice shall be deemed given and received on the first
date of refusal or attempted delivery, as applicable.
15.2 Successors, Assigns, Etc. This Sublease shall be binding upon and
------------------------
inure to the benefit of the parties hereto and their respective heirs,
executors, administrators, legal representatives, successors, and assigns when
permitted hereby.
15.3 Governing Law. This Sublease shall be construed under and in
-------------
accordance with the laws of the State in which the Premises are located.
15.4 Severability. In case any one or more of the provisions contained
------------
in this Sublease shall for any reason be held to be invalid, illegal, or
unenforceable, no other provision hereof shall be affected thereby and this
Sublease shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein.
15.5 Entire Agreement. This Sublease constitutes the sole and only
----------------
agreement of the parties hereto and supersedes any prior understandings or
written or oral agreements between the parties respecting the subject matter
hereof.
12
15.6 Amendments. No amendment, modification, or alteration of the terms
----------
hereof shall be binding unless the same shall be in writing, dated subsequent to
the date hereof, and duly executed by the parties hereto.
15.7 Rights Cumulative. The rights and remedies provided by this Sublease
-----------------
are cumulative and the use of any one right or remedy by either party shall not
preclude or waive its right to use any or all other remedies. Said rights and
remedies are given in addition to any other rights the parties may have by law,
statute, ordinance, or otherwise.
15.8 No Waiver. No waiver by the parties hereto of any default or breach
---------
of any term, condition, or covenant of this Sublease shall be deemed to be a
waiver of any other breach of the same or any other term, condition, or covenant
contained herein.
15.9 Attorneys' Fees. In the event Sublessor or Sublessee breaches any of
---------------
the terms of this Sublease whereby the party not in default employs attorneys to
protect or enforce its rights hereunder and prevails, then the defaulting party
agrees to pay the prevailing party's reasonable attorneys' fees, including,
without limitation, attorneys' fees incurred in connection with any bankruptcy
or insolvency proceeding.
15.10 Force Majeure. Neither Sublessor nor Sublessee shall be required to
-------------
perform any term, condition, or covenant in this Sublease so long as such
performance is delayed or prevented by any acts of God, strikes, lock-outs,
material or labor restrictions by any governmental authority, civil riot,
floods, or any other cause not reasonably within the control of Sublessor or
Sublessee and which by the exercise of due diligence such party is unable, in
whole or in part, to prevent or overcome.
15.11 Landlord's Consent. Landlord's prior written consent may be required
------------------
pursuant to the terms of the Master Lease for certain actions by Sublessee
whether or not Sublessor's consent is required hereunder. Sublessee agrees to
refrain from taking any such action unless and until all requisite consents are
obtained.
15.12 Time of the Essence. Time is of the essence of this Sublease.
-------------------
15.13 Roof Access. Sublessor agrees to cooperate with Sublessee in
-----------
connection with any request or negotiation with Landlord for the use and
installation of Sublessee's equipment on the roof of the building in which the
Subleased Premises are situate provided that (a) such use or installation does
not create any additional expense or liability for Sublessor, or (b) Sublessee
posts with Sublessor such additional security as Sublessor deems necessary to
cover any such increased liability. Sublessee hereby acknowledges that Sublessor
has no right under the Master Lease to use or install equipment on the roof and
makes no representations that such rights will be available for Sublessor's
benefit.
15.14 DISCLAIMERS. SUBLESSEE HEREBY AGREES TO SUBLEASE THE SUBLEASED
-----------
PREMISES ON AN "AS IS, WHERE IS, WITH ALL FAULTS" BASIS WITHOUT ANY
REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, ON THE
13
PART OF SUBLESSOR WITH RESPECT TO THE SUBLEASED PREMISES, INCLUDING BUT NOT
LIMITED TO, WARRANTIES OR REPRESENTATIONS AS TO HABITABILITY, MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE. SUBLESSEE REPRESENTS TO SUBLESSOR THAT
SUBLESSEE IS RELYING SOLELY UPON ITS OWN INVESTIGATIONS AS TO THE FITNESS OF THE
SUBLEASED PROPERTY AND THE TERMS OF THE MASTER LEASE FOR SUBLESSEE'S INTENDED
PURPOSES.
15.15 Card Access System. Sublessee shall have the right to utilize the
------------------
card access security system (the "Security System") currently in place with
respect to the Subleased Premises and Sublessee agrees to properly maintain at
Sublessee's sole expense the Security System in good working order throughout
the term of this Sublease. Sublessor agrees to make a representative of
Sublessor familiar with the Security System available to Sublessee for
consultation during normal business hours. Sublessee will be responsible for the
cost of all supplies relating to the operation and maintenance of the Security
System, including without limitation, access cards.
15.16 Additional Rent. all amounts required to be paid by Sublessee under
---------------
this Sublease, except Base Rent, shall be deemed "additional rent" owed
hereunder and "rent" as used herein shall mean collectively the Base Rent and
the additional rent.
15.17 Brokers. Except for Huff Real Estate, Inc. and Insignia/ESG, Inc. to
-------
which Sublessor has agreed to pay a commission in accordance with the terms of
one or more separate written commission agreements, Sublessee has not engaged
the services or otherwise negotiated with any broker in connection with this
Sublease. Sublessee agrees to indemnify and hold Sublessor harmless from and
against any and all claims for commission or other remuneration made by parties
acting or purporting to act by or through Sublessee.
15.18 Landlord's Consent. Sublessee acknowledges and agrees that this
------------------
Sublease shall be of no force and effect unless approved by Landlord in
accordance with the terms of the Master Lease. Sublessee agrees to execute any
modifications to this Sublease and any additional documentation and to supply
any additional information as Landlord may request provided that such request is
consistent with the Master Lease or is otherwise reasonable. Furthermore,
Sublessee agrees that if during the Sublease Term any action or matter requires
either Landlord's consent under the Master Lease or Sublessor's consent under
this Sublease, such action or matter shall be construed to require, at the
option of Sublessor, the consent of both Landlord and Sublessor. Sublessor shall
have no obligation to consent to any action or matter with respect to which
Landlord withholds or refuses consent, regardless of Landlord's reason therefor.
Sublessor agrees to submit this Sublease to Landlord for approval promptly
following execution of this Sublease: Sublessee shall be entitled to terminate
this Sublease if Landlord does not provide its consent to this Sublease within
thirty (30) days following execution of this Sublease by all parties.
15.19 Landlord's Acknowledgment. By its approval of this Sublease Landlord
-------------------------
acknowledges that notwithstanding anything to the contrary in Section 11(a) of
the Master Lease and in clarification of the effect thereof, Sublessee shall
have no liability for any monetary
14
obligations under the Master Lease in excess of Sublessee's monetary obligations
under this Sublease.
IN WITNESS WHEREOF, Sublessor and Sublessee have caused this Sublease to be
executed by their duly authorized representatives as of the day and year first
written above.
IMS HEALTH INCORPORATED,
a Delaware corporation
By: ____________________________________
Name: __________________________________
Title:__________________________________
MULTILINK TECHNOLOGY
CORPORATION, a California corporation
By: Richard N. Nottenburg
---------------------------------
Name: Richard N. Nottenburg
---------------------------------
Title: President
---------------------------------
15
EXHIBIT A
---------
(Description of Leased Furniture)
EXHIBIT B
---------
(Copy of Master Lease with Certain Economic Terms Blacked Out)
300 ATRIUM DRIVE
FRANKLIN TOWNSHIP, NEW JERSEY
OFFICE LEASE AGREEMENT
Landlord: TOWNSEND PROPERTY TRUST LIMITED PARTNERSHIP, Doing Business in
New Jersey as TPT Limited Partnership
Tenant: IMS AMERICA, LTD., a New Jersey corporation
Building: 300 ATRIUM DRIVE
FRANKLIN TOWNSHIP, NEW JERSEY
Floor(s): Portion of Second (2nd)
Sq. Ft.: 12,663 Rentable Square Feet
Term: Ten (10) years
Extension
Option: One (1) option to extend for five (5) years at 95% of market
rent
Termination
Option: After seventh (7th) lease year
TABLE OF CONTENTS
-----------------
Page
----
1. PREMISES AND TERM................................................... 2
2. RENT................................................................ 5
3. OPERATING EXPENSE ESCALATION, TAXES AND TENANT ELECTRIC............. 6
4. DELIVERY OF THE PREMISES............................................ 10
6. USE................................................................. 14
7. TENANT'S CARE OF THE PREMISES...................................... 14
8. SERVICES............................................................ 16
9. DESTRUCTION OR DAMAGE TO PREMISES................................... 18
10. DEFAULT BY TENANT; LANDLORD'S REMEDIES.............................. 20
11. ASSIGNMENT AND SUBLETTING........................................... 23
12. CONDEMNATION........................................................ 25
13. RIGHT TO ENTER...................................................... 25
14. SUBORDINATION....................................................... 26
15. INDEMNIFICATION AND HOLD HARMLESS................................... 27
16. INSURANCE........................................................... 28
17. ENTIRE AGREEMENT - NO WAIVER........................................ 29
18. HOLDING OVER........................................................ 30
19. HEADINGS............................................................ 30
20. NOTICES............................................................. 30
i
21. HEIRS, SUCCESSORS, AND ASSIGNS - PARTIES............................. 30
22. ATTORNEY'S FEES...................................................... 31
23. SECURITY DEPOSIT..................................................... 31
24. RULES AND REGULATIONS................................................ 32
25. INTENTIONALLY DELETED................................................ 32
26. LATE PAYMENTS........................................................ 32
27. ESTOPPEL CERTIFICATE................................................. 33
28. SEVERABILITY AND INTERPRETATION...................................... 33
29. MULTIPLE TENANTS...................................................... 34
30. FORCE MAJEURE......................................................... 34
31. QUIET ENJOYMENT....................................................... 34
32. BROKERAGE COMMISSION; INDEMNITY....................................... 34
33. EXCULPATION OF LANDLORD............................................... 34
34. ORIGINAL INSTRUMENT................................................... 35
35. NEW JERSEY LAW........................................................ 35
36. NO RECORDATION OF LEASE............................................... 35
37. HAZARDOUS WASTES/ENVIRONMENTAL COMPLIANCE............................. 35
38. LEASE BINDING UPON DELIVERY; NO OPTION................................ 37
39. INTENTIONALLY DELETED................................................. 37
40. JURISDICTION; SERVICE; WAIVER OF JURY TRIAL........................... 37
41. TENANT'S FINANCIAL STATEMENTS......................................... 37
ii
EXHIBIT A SPACE PLAN OF PREMISE...................................... A-1
EXHIBIT B LEGAL DESCRIPTION OF THE LAND.............................. B-1
EXHIBIT C RULES AND REGULATIONS...................................... C-1
EXHIBIT D CLEANING SPECIFICATIONS.................................... D-1
iii
LEASE AGREEMENT
THIS LEASE AGREEMENT (the "Lease"), made as of this 21st day of
February, 1997, by and between Townsend Property Trust Limited Partnership, a
Maryland limited partnership, doing business in New Jersey as TPT Limited
Partnership ("Landlord"), which has as its address for all purposes hereunder
as follows:
Townsend Property Trust Limited Partnership
c/o The Townsend Company
210 West Pennsylvania Avenue, Suite 610
Towson, Maryland 21204
and IMS America, Ltd. ("Tenant"), a corporation of the State of New Jersey,
which has as its address for all purposes hereunder:
Prior to the Commencement Date (as hereinafter defined):
IMS America, Ltd.
c/o The Plymouth Group Inc.
15 Independence Boulevard
Warren, New Jersey 07059
After the Commencement Date:
IMS America, Ltd.
300 Atrium Drive
Somerset, New Jersey 08873
All correspondence to Tenant shall be copied to:
Cognizant Corporation
200 Nyala Farms Road
Westport, Connecticut 06880
Attn: Director of Global Real Estate
1
WITNESSETH:
1. PREMISES AND TERM
(a) Landlord hereby rents and leases to Tenant, and Tenant
hereby rents and leases from Landlord, the following described space (the
"Premises"):
Floor(s): a portion of the second (2nd) floor
Rentable Square Feet: 12,663 as shown on Exhibit "A"
-----------
located at the "Building":
Address: 300 Atrium Drive
Franklin Township, New Jersey
Total Building Rentable Square Feet: 149,359
(b) The parties agree that the Building contains 149,359
Rentable Square Feet ("RSF") and the Premises contain 12,663 RSF regardless of
the actual square footage amounts. "Tenant's Pro Rata Share" shall mean 8.48%.
(c) The Premises are more particularly shown and outlined on the
space plans attached hereto as Exhibit "A", and made a part hereof.
-----------
(d) The Building is located on a parcel of land described in the
attached Exhibit "B" (the "Land"). The Land, the Building and the other
-----------
improvements on the Land are hereafter called the "Property".
(e) The Premises shall include the appurtenant right to use, in
common with others, public lobbies, entrances, stairs, corridors, elevators, and
other public portions of the Building, subject in all instances and under all
circumstances to Landlord's right to alter, modify and, to the extent necessary
to temporarily block off access to portions of such public areas if Landlord
deems it desirable or appropriate to do so. All the windows and outside walls of
the Premises, and any space in the Premises used for shafts, pipes, conduits,
ducts, telephone ducts and equipment, electric or other utilities, sinks or
other Building facilities, and the use thereof and access thereto through the
Premises for the purposes of operation, maintenance, inspection, display and
repairs are hereby reserved to Landlord. No easement for light, air or view is
granted or implied hereunder, and the reduction or elimination of Tenant's
light, air or view will not affect Tenant's liability or obligations under this
Lease. Tenant shall have the right to use forty-one (41) spaces in the parking
lot serving the Building on a non-reserved basis, and four spaces (in a location
to be
2
determined by Landlord in its sole discretion) on a reserved basis, for the
daily temporary parking of automobiles of employees and business invitees. The
reserved spaces shall be identified by Landlord as reserved for the use of
Tenant.
(f) The term (the "Term") of this Lease shall commence on the
date (the "Commencement Date") that the Tenant Improvement Work (defined below)
is "substantially complete" (defined below), to and expiring on the date that is
ten (10) years from the Commencement Date unless earlier terminated in
accordance with this Lease. This Lease shall be effective and enforceable
between Landlord and Tenant upon its execution and delivery, whether such
execution and delivery occurs on, prior to, or after the Commencement Date. If
the term of the Lease is extended, then the Expiration Date shall be the last
day of this term as extended and "Term" shall mean the Term including such
extension.
(g) Provided there is no uncured event of default under this
Lease at the time Tenant exercises the option described in this Paragraph 1(g)
or at the commencement of the Renewal Term (defined below), Tenant shall have
the option to renew this Lease for one additional term (the "Renewal Term") of
five (5) years by giving Landlord written notice at least two hundred seventy
(270) days prior to the expiration date of the Lease. The Renewal Term shall be
on the same terms and conditions as set forth in this Lease, except that (i) the
Base Rental shall be ninety-five percent (95%) of market rent ("Market Rent")
for renewals of tenant space in comparable quality office buildings in the area
in which the Premises is located, and (ii) the "Base Year" for calculating
Tenant's Pro Rata Share of the increase in Operating Expenses and the "Base Tax
Year" for calculating Tenant's Pro Share of the increase in Taxes, shall be
2007.
Market Rent shall be determined as follows. Within thirty (30) days
after Tenant exercises its option to renew, Landlord will advise Tenant of the
Market Rent. If Landlord and Tenant cannot agree on the Market Rent within
thirty (30) days of the date that Landlord provides Tenant with Landlord's
determination of the Market Rent, then within thirty (30) days after such
failure to reach agreement, Landlord shall furnish to Tenant a notice in writing
("Landlord's Notice") stating what Landlord perceives to be Market Rent.
Landlord's Notice shall be accompanied by a statement from a qualified real
estate appraiser stating the appraiser's opinion of Market Rent and that it has
been determined in accordance with this Section. If the Tenant disagrees with
the estimate of Market Rent submitted by Landlord with Landlord's Notice, then
within thirty (30) days after receipt of Landlord's Notice, Tenant shall have
the right to submit to Landlord an appraisal by a qualified real estate
appraiser of Market Rent effective as of the commencement date of the Renewal
Term. If the higher estimate is not more than 105% of the lower estimate, the
Market Rent shall be established as the average of the two appraisals. If not,
the two appraisers acting on behalf of Landlord and Tenant, shall, within
fifteen (15) days after Tenant's appraisal has been
3
submitted, jointly appoint a third qualified real estate appraiser (the
"Referee"). If the two appraisers are unable to agree upon the selection of a
Referee, then the Referee shall be selected within fifteen (15) days
thereafter by an arbitrator pursuant to the rules of the American Arbitration
Association.
The Referee shall, within thirty (30) days after appointment, render
his decision which decision shall be strictly limited to choosing one of the two
determinations made by the two appraisers chosen by Landlord and Tenant with
respect to Market Rent. The decision of the Referee shall be binding upon
Landlord and Tenant and shall constitute the Base' Rental for the Renewal Term.
Landlord and Tenant shall each pay for their own appraisal, and the cost of the
Referee shall be shared equally by Landlord and Tenant. In determining Market
Rent, the appraisers shall each take into account the following: (a) the amount
of space and length of term taken by the Tenant; (b) the credit worthiness and
quality of Tenant; and (c) rent for comparable space with similar improvements
to the Tenant Improvement Work (in the condition of such Tenant Improvement
Work) in comparable buildings in the relevant competitive market but excluding
concessions offered to new tenants such as free rent, tenant improvement
allowances, moving allowances and other concessions. In determining Market Rent,
the appraisers shall exclude from consideration: (i) tenant improvements
installed by Tenant; (ii) alterations installed by Tenant at its expense, during
the Term; and (iii) concessions offered to new tenants such as free rent, tenant
improvement allowances and other concessions. Notwithstanding the foregoing to
the contrary, in no event shall the Base Rental for the Renewal Term be less
than the Base Rental last in effect during the original Term of this Lease.
(h) Tenant shall have the option to terminate this Lease
effective as of the seventh (7th) anniversary of the Commencement Date by
providing Landlord with written notice not less than nine (9) months prior to
the seventh (7th) anniversary of the Commencement Date, which notice shall
include a cancellation payment equal to the sum of (i) three (3) months Base
Rent and Additional Rent at the rates then in effect, plus (ii) an amount equal
to the unamortized portion of the TI Allowance (as hereinafter defined), which
amortization shall be as permitted under the Internal Revenue Code of 1986, as
amended. Tenant's exercise of its option to terminate shall be effective to
terminate this Lease only if, at the time of the notice and on the seventh (7th)
anniversary of this Lease, Tenant is not in default under this Lease, and no
event exists which with the passage of time or the giving of notice or both
would ripen into a default. If Tenant fails to give timely notice of its option
as provided above, said option shall be forever waived.
(i) "Lease Year" as used herein shall mean (i) each and every
consecutive twelve (12) month period during the Term of this Lease, or (ii) in
the event of Lease expiration or termination, the period between the last
complete Lease Year and said expiration or termination. The first such twelve
(12) month period shall commence on the
4
Commencement Date. If the Commencement Date is any day other than the first day
of a month, then the first Lease Year shall be the partial month in which the
Commencement Date occurs and the next consecutive twelve (12) months.
(j) "Business Days" as used herein shall mean Monday through
Friday, New Jersey state holidays excepted.
2. RENT
(a) Tenant shall pay to Landlord at the address of Landlord
indicated herein, or at such other place as Landlord may designate in writing,
without demand, deduction or setoff, an annual base rental (said rent, and as
the same may be adjusted from time to time, is herein referred to as the "Base
Rental"), due and payable in equal monthly installments (the "Monthly Base
Rental") in advance commencing on the Commencement Date and continuing on the
first (1st) day of each calendar month during the Term. The term "Rent", as used
herein, shall mean Base Rental (as adjusted from time to time), and any
additional rents or charges due of Tenant hereunder.
(b) The annual Base Rental for Lease Years 1 through 3 shall be
per RSF or and the Monthly Base Rental for Lease Years 1 through 3
shall be
(c) The annual Base Rental for Lease Years 4 through 6 shall be
per RSF or and the Monthly Base Rental for Lease Years 4 through 6
shall be
(d) The annual Base Rental for Lease Years 7 and 8 shall be
per RSF or and the Monthly Base Rental for Lease Years 7 and 8
shall be
(e) The annual Base Rental for Lease Years 9 and 10 shall be
per RSF or and the Monthly Base Rental for Lease Years 9 and 10
shall be
(f) Should this Lease commence on other than the first (1st) day
or terminate at any time other than the last day of a calendar month, the amount
of Base Rental due from Tenant shall be proportionately adjusted based on that
portion of the month that this Lease is in effect.
(g) Tenant has deposited with Landlord a security deposit of
5
$41,154.76 (the "Security Deposit") which is governed by terms of Paragraph 23
of this Lease.
3. OPERATING EXPENSE ESCALATION, TAXES AND TENANT ELECTRIC
(a) Operation Expense Escalation.
----------------------------
(i) Commencing with calendar year 1998, and for each
calendar year falling wholly or partially within the Term thereafter, Tenant
shall pay to Landlord as additional rent, Tenant's Pro Rata Share of the amount
by which Operating Expenses for such calendar year exceed the Operating Expenses
for the Base Year.
(ii) For the purposes hereof, the following definitions
shall apply:
(A) "Base Year" shall mean calendar year 1997.
(B) "Landlord's Statement" shall mean a statement
furnished by Landlord to Tenant containing a computation or information
relating to any additional rent asserted by Landlord to be due pursuant to the
provisions of this Lease.
(C) "Operating Expenses" shall mean:
(1) all costs and expenses incurred and
expenditures made by Landlord in the operation and management of the Building
and the Property, exclusive of financing expenses, real estate taxes, and costs
paid directly by individual tenants to suppliers. Operating Expenses include,
without limitation, (i) costs of cleaning, security, janitorial service, rubbish
removal, heating, electricity, air conditioning, utilities, tempered water,
maintenance and repairs, maintenance of the grounds, snow removal and window
cleaning, (ii) service contracts with independent contractors for any of the
foregoing (including, but not limited to, elevator and HVAC maintenance), (iii)
management fees not to exceed four percent (4%) of gross revenue from the
Property, (iv) wages, salaries, benefits, payroll taxes and unemployment
compensation insurance for employees of Landlord or any contractor of Landlord
engaged in the cleaning, operating, maintenance or security of the Building and
Property, (v) the cost of all insurance including, without limitation, casualty,
liability and loss of rent insurance equal to one (1) year's rent for the gross
rent roll (including Additional Rent), (vi) legal fees (except as excluded
below), (vii) an allowance for depreciation over the useful life (as determined
by Landlord) of any
6
items or improvements properly chargeable to the capital account; (viii)
payments other than real estate taxes to the city in which the Building is
located and other agencies, or other governmental agencies including, but not
limited to, water and sewer charges, (ix) supplies, (x) the annual amortization
over its useful life on a straight-line basis of the costs of any capital
improvement made by Landlord and required by any changes in applicable laws,
rules or regulations of any governmental authorities, (xi) the annual
amortization over its useful life on a straight-line basis of the cost of any
equipment or capital improvement made by Landlord as a labor-saving measure or
to accomplish other savings in operating, repairing, managing or maintaining the
Property (but only to the extent of the savings), and (xii) an administrative
fee of four percent (4%) of the Operating Expenses; but excluding (I) the cost
of all electricity furnished to all tenants in their leased premises (provided
that the cost of electricity to common areas on the Property shall be included
in Operating Expenses), (II) overtime electricity usage of other tenants, (III)
legal fees relating to disputes with Tenants, based upon Landlord's negligence,
or relating to the defense of Landlord's title to or interest in the Property,
(IV) leasing commissions and other expenses incurred for leasing, renovating or
improving space for tenants, (V) costs of a capital nature as determined under
generally accepted accounting principles consistently applied, except that the
annual amortization of these costs may be included in Operating Expenses to the
extent permitted under subsection (a)(ii)(C)(l)(x) and (xi) of this Section 3,
(VI) costs incurred because another tenant violated the terms of any lease in
the Building, (VII) interest on debt or amortization payment on mortgages or any
other debt or borrowed money, (VIII) advertising and promotional expenses, (IX)
repairs or other work needed because of fire or other casualty insured against
by Landlord, (X) any costs, fines or penalties incurred due to violations by
Landlord of any governmental rule or authority, and (XI) costs for which
Landlord is reimbursed by tenants of the Building (except for costs included in
Operating Expenses).
(2) If occupancy of the Building during the
Base Year or any subsequent calendar year is less than ninety-five percent (95
%), then Operating Expenses for the Base Year or such calendar year shall be
"grossed up" to the amount of Operating Expenses that, using reasonable
projections, would normally be expected to be incurred during the Base Year or
such succeeding calendar year if the Building was ninety-five percent (95%)
occupied during the Base Year or such succeeding calendar year, as determined
under generally accepted accounting principles consistently applied.
(b) Tax Expense Escalation.
----------------------
(i) For purposes hereof the following Definitions shall
apply:
(A) "Base Tax Year" shall mean 1997.
7
(B) "Tax Year" shall mean each twelve month period
following the Base Tax Year.
(C) "Taxes" shall mean:
(1) Payments in lieu of taxes pursuant to the
Fox-Lance Act, all real estate taxes, personal property taxes, assessments
(special or otherwise), sewer and water rents, rates and charges, and any other
governmental levies, impositions and charges of a similar nature
("Impositions"), which may be levied, assessed or imposed on or in respect of
all or any part of the Property and any improvements, fixtures and equipment of
Landlord, real or personal, located in or around the Property.
(2) Any reasonable and appropriate expenses
incurred by Landlord in contesting any of the foregoing or the assessed
valuation of all or any part of the Property.
(3) If at any time during the Term the methods
of taxation prevailing at the date hereof shall be altered so that in lieu of or
as a substitute for the whole or any part of the Impositions now levied,
assessed or imposed on all or any part of the Property, there shall be levied,
assessed or imposed (i) an Imposition based on the income or rents received
therefrom whether or not wholly or partially as a capital levy or otherwise, or
(ii) an Imposition measured by or based in whole or in part upon all or any part
of the Property and imposed on Landlord, then all Impositions shall be deemed to
be Taxes.
(4) "Taxes" shall not include any penalties or
interest paid by the Landlord on account of taxes or any income tax (except as
set forth in Subsection (b)(i)(C)(3) above), estate tax, franchise tax, transfer
tax or corporate taxes due and payable in connection with the Property.
(ii) If Taxes payable in any Tax Year falling wholly or
substantially within the Term shall be in excess of Taxes for the Base Tax Year,
Tenant shall pay to Landlord as Additional Rent for such Tax Year at the time
Fixed Rent is due hereunder, a sum equal to Tenant's Proportionate Share of the
amount by which Taxes for such Tax Year exceed Taxes for the Base Tax Year (the
"Tax Escalation").
(c) Payment of Operating Expenses and Taxes Escalation.
--------------------------------------------------
(i) At least forty-five (45) days prior to each calendar
year (commencing with calendar year 1998), Landlord shall advise Tenant in
writing of the estimated Tenant's Pro Rata Share of the increase in annual
Operating Expenses for such
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calendar year over the Base Year Operating Expenses and of the increase in Taxes
for the Tax Year over the Base Tax Year. Commencing on the first day of each
calendar year, Tenant shall pay as Additional Rent one-twelfth (1/12th) of the
estimated Tenant's Pro Rata Share of such increases concurrently with the
Monthly Base Rental payment.
(ii) Within ninety (90) days after the close of each
calendar year, Landlord shall deliver to Tenant an itemized statement
("Landlord's Statement") showing in reasonable detail the (i) actual Operating
Expenses and Taxes for the previous year broken down by component expenses; (ii)
Base Year Operating Expenses and Base Year Taxes; (iii) the increase, if any, in
Operating Expenses and Taxes; (iv) Tenant's Pro Rata Share of such increases;
(v) the amount paid by Tenant during the Expense Year towards the increase in
Operating Expenses and the amount paid by Tenant during the Tax Year towards the
increase in Taxes; and (vi) the amount Tenant owes to Landlord for the increase,
or the amount of the refund Landlord owes to Tenant. Any such amount due from
Tenant to Landlord shall be paid within ten (10) days after receipt of
Landlord's Statement. Any such refund due from Landlord to Tenant shall be
credited against the next due payment of the estimated Tenant's Pro Rata Share
of the increase of Operating Expenses and Taxes, or, if at the end of the Term,
shall be paid to Tenant within thirty (30) days of the end of the Term provided
Tenant is not in default under this Lease.
(iii) Landlord's failure to submit a Landlord's Statement
to Tenant within ninety (90) days after the expiration of any calendar year or
Tax Year shall not affect Tenant's obligations to pay Tenant's Pro Rata Share of
the increase in Operating Expenses and Taxes.
(d) Tenant Electric Charge. Notwithstanding the foregoing,
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Tenant shall pay for all electricity used in the Premises at the rates billed by
the utility provider without mark-up, including, but not limited to, electricity
for lights, office machinery and equipment, any appliances and supplemental air
conditioning above building standard air conditioning ("Tenant Electric").
Landlord at its expense shall install a submeter to determine Tenant's electric
usage in the Premises, and Tenant shall thereafter pay Landlord for the actual
electricity consumed in the Premises as determined by such submeter monthly with
its monthly installments of Monthly Base Rent.
(e) Should the Term commence at any time other than the first
day or terminate on other than the last day of a calendar year the amount of
additional rent due from Tenant shall be proportionately adjusted based on that
portion of the year that this Lease was in effect.
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(f) Tenant's payments of Additional Rent shall not be deemed
payments of base rental as that term is construed relative to governmental wage
and price controls or analogous governmental actions affecting the amount of
Rent which Landlord may charge Tenant for the Premises.
(g) Tenant shall have the right, not more than one (1) time in
each Lease Year, to audit the books and records of Landlord as they relate to
Operating Expenses and Taxes, at Landlord's offices set forth in the
introductory paragraph to this Lease, during Business Hours (as hereinafter
defined), upon not less than fifteen (15) days prior written notice to Landlord.
All information obtained during such audit shall be kept confidential by Tenant
and Tenant's agents, employees and advisors. Each audit must be performed at
Tenant's expense by an accounting firm reasonably acceptable to Landlord, and
must conclude with the preparation of a written report detailing the auditor's
findings, a copy of which shall be provided to Landlord and Landlord's
accountants. In the event such report shows that Tenant has underpaid for
Tenant's Share of Operating Expenses or Taxes, Tenant shall promptly remit such
underpayment to Landlord. In the event Tenant's audit states that Tenant has
overpaid Tenant's proportion share of Operating Expenses or Taxes, Landlord
shall have thirty (30) days to review such report. If Landlord disagrees with
Tenant's auditor's report, Landlord, within such thirty (30) day review period,
shall notify Tenant in writing setting forth in reasonable detail its basis for
disagreement, and the parties shall select a mutually acceptable third-party
accountant to review the relevant information and to decide in favor of Tenant's
position or Landlord's position, which decision shall be binding upon the
parties. Any overpayment or underpayment as determined by such third-party
auditor shall be promptly paid. The parties shall equally share the fees of the
third-party auditor.
4. DELIVERY OF THE PREMISES
(a) Promptly after execution of this Lease, Tenant shall consult with
an architect selected by Tenant (and approved by Landlord, such approval not to
be unreasonably withheld or delayed) (the "TI Architect") concerning Tenant's
construction improvement needs for occupancy of the Premises, and then shall
cause the TI Architect to prepare architectural, electrical and mechanical
construction drawings, plans and specifications necessary to construct the
Tenant Improvements, subject to approval by Landlord and Landlord's architect,
which approval shall not be unreasonably withheld or delayed (as approved, the
"Tenant Plans"), to be made to the Premises. Tenant agrees to use diligent
efforts to work with the TI Architect to develop Tenant Plans that are
acceptable to Landlord within thirty (30) days from the date hereof. Tenant
shall not request, nor shall Landlord have any obligation to approve,
improvements that are not consistent with the quality of tenant improvements in
the Building and class "A" general office space. Upon approval of the Tenant
Plans, Landlord shall promptly bid the Tenant Improvement Work to
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not more than three (3) contractors, and Landlord and Tenant shall select a
contractor and cause the selected contractor to agree to a guaranteed maximum
price contract approved by Landlord and Tenant, to obtain all required permits
and to construct the improvements in the Premises pursuant to the Tenant Plans
with the objective of completing such work (the "Tenant Improvement Work") by
April 1, 1997 (the "Target Commencement Date"). The Tenant Improvement Work
shall not include furniture and similar items not customarily included in
"tenant improvements". The Tenant Improvement Work shall be performed at
Tenant's sole cost and expense, provided that Landlord shall contribute not more
than $27.00 per RSF of the Premises (the "TI Allowance") towards the fees of the
TI Architect in designing the Tenant Improvement Work and the cost of building
the Tenant Improvement Work. Upon the execution of the construction contract,
Tenant shall deposit with Landlord, in cash, the amount by which the guaranteed
maximum price under the construction contract exceeds the TI Allowance less the
fees of the TI Architect (the "Excess TI amount"), and thereafter, to the extent
that they cause the cost of the Tenant Improvement work (less the TI Architect's
fees) to exceed the TI Allowance or if the TI Allowance has already been
exhausted, Tenant shall pay, within ten (10) days of receiving invoices
therefor, additional sums relating to any increase to the guaranteed maximum
price pursuant to any change orders that are issued (each, a "Change Order
Amount"), and to cover reimbursable expenses under the contract
("Reimbursables"). Tenant shall respond to any requests from Landlord or
Landlord's architect or contractor for approvals, authorizations to proceed or
information in connection with the Tenant Improvement Work within two (2)
business days of a request. Tenant shall not be obligated to remove any Tenant
Improvement Work at the end of the Term.
(b) The Premises shall be deemed ready for occupancy and the
Tenant Improvement Work shall be deemed to have been "substantially completed"
on the date: (i) the TI Architect has certified that the Tenant Improvement Work
is completed except for minor or insubstantial details of construction,
mechanical adjustment or decoration which remain to be performed, the non-
completion of which do not materially interfere with Tenant's use of the
Premises; and (ii) all certificates of occupancy necessary for Tenant's
occupancy of the Premises have been issued. Landlord shall endeavor to provide
Tenant with five (5) days advance notice of substantial completion. If the
Tenant Improvement Work requires any specialized permits or approvals due to the
nature of Tenant's use or specialized needs, Tenant shall be responsible for and
shall obtain all such permits and approvals. At or prior to the Commencement
Date, representatives of Landlord and Tenant shall inspect the Premises and
shall cooperate in producing and signing a punch list identifying Tenant
Improvement Work which has either not been completed or which has been not
completed properly, and Landlord shall cause all items on such agreed punch list
to be diligently completed or corrected, but such items shall not cause a
postponement in the Commencement Date.
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(c) If the occurrence of the conditions listed in subsection (b)
above, and thereby making the Premises ready for occupancy, shall be delayed due
to:
(i) failure of Tenant to respond to any requests from
Landlord or Landlord's architect or contractor for approvals, authorizations to
proceed or information in connection with the Tenant Plans and the Tenant
Improvement Work within three (3) business days of a request; or
(ii) failure of Tenant to deposit the Excess TI Amount
with Landlord within two (2) business days of Landlord's request therefor; or
(iii) changes in the Tenant Improvement Work which are
requested by Tenant and approved by Landlord; or
(iv) any other act or omission of Tenant or any of its
employees, agents or contractors, then the Premises shall be deemed
substantially complete on the date when they would have been ready but for such
delay (certified to Tenant in writing by Landlord's architect), and the
Commencement Date shall be deemed to occur on such earlier date.
(d) If and when Tenant shall take actual possession of the
Premises, it shall be conclusively presumed that the same were in satisfactory
condition as of the date of such taking of possession, unless within thirty (30)
days after such date Tenant shall give Landlord notice specifying the respects
in which the Premises were not in satisfactory condition.
(e) If Landlord shall be unable to give possession of the
Premises on the Target Commencement Date by reason of the holding over or
retention of possession of any tenant or occupant, or if repairs, improvements
or decoration of the Premises or of the Building are not completed, or for any
other reason, Landlord shall not be subject to any liability for failure to give
possession on said date. Instead, Landlord shall use reasonable efforts to
provide possession of the as soon as possible after the Target Commencement Date
and shall provide Tenant with written notice of the date on which the Premises
shall be available for occupancy. No such failure to give possession on the
Target Commencement Date shall in any other respect affect the validity of this
Lease or the obligations of Tenant hereunder.
(f) By taking possession of the Premises, Tenant shall be deemed
to have accepted the Premises as being in good sanitary order, condition and
repair, except for the deficiencies identified in writing by Tenant as provided
in subsection (d) above. Tenant shall, at Tenant's sole cost and expense, keep
the Premises and every part thereof in good
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condition and repair, damage thereto from fire or other casualty and ordinary
wear and tear, condemnation, and from the negligence from misconduct of
Landlord, its agents, employees, invitees, contractors, subcontractors and
others for whom Landlord is legally responsible, alone excepted. Landlord shall
have no obligation whatsoever to alter, remodel, improve, repair, decorate or
paint the Premises or any part thereof except as otherwise expressly provided
herein or agreed upon in writing by Landlord, and the parties hereto affirm that
Landlord has made no representations to Tenant respecting the condition of the
Premises, the Building or the Property except as specifically herein set forth
in writing. Landlord represents and warrants to Tenant that, to the best of
Landlord's knowledge, on the date hereof the Building systems are in good
working condition.
(g) Prior to substantial completion of the Tenant Improvement
Work and delivery of the Premises to Tenant, Tenant may access the Premises at
Tenant's risk and perform all work in or about the Premises which is not within
the scope of the work necessary to construct and install the Tenant Improvement
Work and which is necessary for Tenant's occupancy of the Premises, including g,
without limitation, delivery and installation of furniture, equipment, data and
telecommunicating systems, telephone equipment, wiring and office equipment
("Tenant's Work"). No such entry shall be made unless and until (i) Tenant shall
have notified Landlord in writing that it desires to enter the Premises, which
notice shall state in reasonable detail the work that Tenant proposes to
perform, and Landlord and Landlord and Tenant have coordinated, to Landlord's
reasonable satisfaction, Tenant's entry with Landlord's contractors; and (ii)
prior to such entry Tenant shall have submitted to Landlord evidence that Tenant
has obtained the insurance required by this Lease. Any work performed by Tenant
or its agents, contractors, workers, mechanics, suppliers and invitees shall be
performed in harmony with Landlord and Landlord's contractors, agents, workers,
mechanics, suppliers and invitees, and if at any time the presence of Tenant or
its agents, contractors, workers, mechanics, suppliers and/or invitees shall
cause an interruption of, or a disruption of, or shall interfere with Landlord's
performance of the Tenant Improvement Work or any other work in the Premises or
the Building, Landlord shall have the right, upon twenty-four (24) hours prior
notice to Tenant, to order Tenant to cease all work on the Premises, in which
event such work shall be halted and shall not be recommenced until and unless
the conflicts which caused to Landlord to give such notice have been resolved.
Tenant is aware of the fact that Landlord will require a high-grade, first-class
operation to be conducted in the Premises. Toward that end, Tenant's Work shall
be performed in a first-class workman-like manner, using new and first-class
quality materials; and all furniture, fixtures and equipment used or installed
by Tenant in the Premises shall be new or otherwise in first-class condition.
All of Tenant's Work shall be constructed and installed in accordance with all
applicable laws, ordinances, codes and rules and regulations of governmental
authorities; and Tenant shall promptly correct any of Tenant's Work which is not
in conformance therewith. In performing Tenant's Work, Tenant shall require its
contract parties and their subcontractors to furnish Landlord with
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evidence of insurance coverage as may reasonably be required by Landlord prior
to the performance of any work by Tenant's contract parties or their
subcontractors. Tenant shall proceed with due diligence to complete Tenant's
Work.
5. ACCEPTANCE OF THE PREMISES
The taking of possession of Premises by Tenant shall be conclusive
evidence that Tenant accepts the same "as is" and that said Premises and the
Building were in good and satisfactory condition for the use intended at the
time such possession was taken, subject to any "punch list" items agreed upon by
Landlord and Tenant which must be remedied after Tenant's acceptance of the
Premises.
6. USE
Tenant shall use the Premises only for professional executive office
purposes, generally in accordance with the manner of use by other non-retail
tenants in the Building. Tenant's use of the Premises shall not violate any
ordinance, law or regulation of any governmental body now or hereafter in effect
or the "Rules and Regulations" of Landlord (the "Rules") as set forth in Exhibit
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"C" attached hereto and made a part hereof (as the same may be modified or
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supplemented by Landlord from time to time), or cause an unreasonable amount of
use of any of the services provided in the Building. Tenant agrees to conduct
its business in the manner and according to the generally accepted business
principles of the business or profession in which Tenant is engaged.
7. TENANT'S CARE OF THE PREMISES
(a) Tenant will take good care of the Premises and the fixtures
and appurtenances therein, and will neither commit nor suffer any active or
permissive waste or injury thereof, subject to reasonable wear and tear and loss
by fire and other casualty not caused by Tenant's wilful misconduct. Tenant's
responsibilities in conjunction therewith shall include, but not be limited to,
the cleaning of draperies, the shampooing and/or re-stretching of the carpeting
located in the Premises, and the regular painting and decorating of the Premises
so as to maintain the Premises in a first-class condition and state of repair,
subject to reasonable wear and tear and loss by fire and other casualty not
caused by Tenant's wilful misconduct. All such repair work and maintenance and
any alterations permitted by Landlord shall be done at Tenant's sole cost and
expense by Landlord's employees or agents or, with Landlord's express written
consent, by persons requested by Tenant and consented to in writing by Landlord,
which consent Landlord shall not
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unreasonably withhold or delay. Tenant shall, at Tenant's expense, but under the
direction of Landlord and performed by Landlord's employees or agents, or with
Landlord's express written consent, which consent Landlord shall not
unreasonably withhold or delay, by persons requested by Tenant and consented to
in writing by Landlord, promptly repair any injury or damage to the Premises or
Building caused by the misuse or neglect thereof by Tenant, by Tenant's
contractors, subcontractors, customers, employees, licensees, agents, or
invitees permitted or invited (whether by express or implied invitation) on the
Premises by Tenant, or by Tenant moving in or out of the Premises.
(b) Tenant will not, without Landlord's prior written consent,
which consent shall not be unreasonably withheld or delayed, make alterations,
additions or improvements in or about Premises and will not do anything to or on
the Premises which will increase the rate of fire or other insurance on the
Building or the Property, provided that Tenant may make minor alterations in the
nature of decorating without Landlord's prior consent. All alterations,
additions or improvements of a permanent nature made or installed by Tenant in
the Premises shall become the property of Landlord at the expiration or early
termination of this Lease. Landlord reserves the right to require Tenant to
remove any improvements or additions made to the Premises by Tenant and to
repair and restore the Premises to their condition prior to such alteration,
addition or improvement, reasonable wear and tear, unrepaired casualty not
caused by Tenant, and condemnation excepted, unless Landlord has agreed in
writing, at or prior to the time Tenant requests the right to make such
alteration, addition or improvement, that such item need not be removed by
Tenant at the expiration or early termination of the Lease.
(c) No later than the last day of the Term or earlier
termination as provided herein, Tenant will remove all Tenant's personal
property and repair all injury done by or in connection with installation or
removal of said property and surrender the Premises (together with all keys,
access cards or entrance passes to the Premises and/or Building) in as good a
condition as they were at the beginning of the Term, reasonable wear and tear,
unrepaired casualty not caused by the wilful misconduct of Tenant and
condemnation excepted. All property of Tenant remaining in the Premises after
expiration or earlier termination of the Term shall be deemed conclusively
abandoned and may be removed by Landlord, and Tenant shall reimburse Landlord
for the cost of removing the same, subject however, to Landlord's right to
require Tenant to remove any improvements or additions made to the Premises by
Tenant pursuant to the preceding Paragraph.
(d) In doing any work in the Premises, Tenant will use only
contractors or workers consented to by Landlord in writing prior to the time
such work is commenced, which consent Landlord shall not unreasonably withhold
or delay. Landlord may condition its consent upon its receipt of acceptable lien
waivers from such contractors or workmen, or an agreement to provide partial
releases of lien at each payment to such
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contractors and full lien waivers and releases upon completion. Tenant shall
promptly bond over or remove any lien or claim of lien for material or labor
claimed against the Premises or Building, or both, by such contractors or
workmen if such claim should arise, and hereby indemnifies and holds Landlord
harmless from and against any and all losses, costs, damages, expenses or
liabilities including, but not limited to, reasonable attorney's fees, incurred
by Landlord, as a result of or in any way related to such claims or such liens.
(e) All personal property brought into the Premises by Tenant,
its employees, licensees and invitees shall be at the sole risk of Tenant, and
Landlord shall not be liable for theft thereof or of money deposited therein or
for any damages thereto, such theft or damage being the sole responsibility of
Tenant.
(f) Tenant, at its expense, shall comply with all applicable
laws, ordinances, orders, rules and regulations of any governmental authority
having jurisdiction, whether now or hereafter in effect ("Applicable Laws"),
which pertain to the Premises or Tenant's use thereof, including, but not
limited to the Americans with Disabilities Act and all Applicable Laws affecting
the physical condition of the Premises or the particular manner in which Tenant
uses the Premises, and all Applicable Laws pertaining to air or water quality,
the use, storage or disposal of any hazardous substance, pollutant or other
contaminant, waste disposal, air emissions and other environmental matters.
8. SERVICES
(a) Landlord shall furnish the following services (the cost of
which services shall be reimbursed to Landlord in accordance with Paragraph 3
herein):
(i) Access to the Premises and elevator service for
passenger and delivery needs, twenty-four (24) hours a day, 365 days a year
except for emergencies and scheduled maintenance closures.
(ii) During Business Hours, air conditioning during summer
operations and heat during winter operations at temperature levels similar to
other first class office buildings in the area in which the Premises is located
(but at a maximum temperature of 78(degree) Fahrenheit during summer operations
and a minimum temperature of 68(degree) Fahrenheit during winter operations),
but consistent with and subject to all Federal and local energy conservation
regulations.
(iii) Public restrooms, including the furnishing of soap,
paper towels, and toilet tissue, during Business Hours.
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(iv) Either hot and cold or tempered running water for all
restrooms, lavatories and pantries in the Premises, twenty-four (24) hours a
day, seven (7) days a week.
(v) Janitorial service will be provided in accordance
with Exhibit "D", Cleaning Specification which is attached to and part of this
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Lease.
(vi) The replacement of building standard fluorescent
lamps and ballasts as needed in the Premises and Common Areas.
(vii) Repairs and maintenance, for maintaining in good
order at all times the exterior walls, exterior windows, exterior doors and roof
and all structural components of the Building, public corridors, stairs,
elevators, storage rooms, restrooms, the heating, ventilating and air
conditioning systems, electrical and plumbing systems of the Building, and the
walks, paving, striping and landscaping surrounding the Building.
(viii) Grounds care, including the sweeping and shovelling
of walks and parking areas and the maintenance of landscaping in an attractive
and safe manner.
(ix) General management, including supervision,
inspections and management functions.
(x) Electricity to operate the Building, Property and
Premises twenty-four (24) hours a day, seven (7) days a week, by providing
electric current in reasonable amounts necessary for normal office uses.
(b) The services provided for in Paragraph 8(a) herein are
predicated on and are in anticipation of certain usage of the Premises by Tenant
as follows:
(i) "Business Hours" shall mean the hours of 8 AM to 6 PM
on Business Days and 9 AM to 1 PM Saturdays (except New Jersey state holidays).
(ii) Electric power usage and consumption for the Premises
shall be based on lighting of the Premises during Business Hours on a level
suitable for normal office use and power for small desk-top machines and devices
using no more than 110 volt, 20 amp circuits. Heavier use items shall not be
used or installed, unless expressly permitted elsewhere herein or by separate
written consent of Landlord.
(iii) Should Tenant's total rated electrical design load
per square foot in the Premises exceed the Building standard rated electrical
design load, on a per Rentable Square Foot basis, as determined by Landlord from
time to time, for either low
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or high voltage electrical consumption, or if Tenant's electrical design
requires low voltage or high voltage circuits in excess of Tenant's share of the
Building standard circuits, as such share is determined by Landlord in
Landlord's reasonable judgment, Landlord may (at Tenant's expense), if
reasonably possible, install within the Building one (1) additional high voltage
panel and/or one (1) additional low voltage panel with associated transformer
(the "Additional Electrical Equipment") as necessary to accommodate the
aforesaid requirements. If the Additional Electrical Equipment is installed
because Tenant's low or high voltage rated electrical design load exceeds the
applicable Building standard rated electrical design load (on a per Rentable
Square Foot basis), then a meter may also be added by Landlord (at Tenant's
expense) to measure the electricity provided through the Additional Electrical
Equipment.
(c) If Tenant uses HVAC services for a period in excess of
Business Hours, Landlord also reserves the right to charge Tenant as additional
rent a reasonable sum as reimbursement for the direct cost of such added
services. Landlord further reserves the right to install separate metering
devices for the purpose of determining such excessive periods and/or amounts at
Tenant's sole cost and expense. In the event of disagreement as to the
reasonableness of such additional charge, the opinion of the appropriate local
utility company or an independent professional engineering firm selected b
Landlord shall prevail.
(d) In the event of any failure or interruption of any service
or utility whether caused by breakage, accident, strikes, repairs, failure of
fuel supply, or for any other cause or causes, Tenant shall not be entitled to
any abatement or set off of Rent or Additional Rent payable hereunder except if,
and only if, such failure or interruption in service was caused solely by the
negligence or wilful misconduct of Landlord and such failure continues for five
(5) business days after Landlord's receipt of written notice thereof from
Tenant. However, in no event shall Landlord be liable to Tenant for any direct,
indirect or consequential damages, or for damages caused directly or indirectly
by any malfunction of Tenant's computer systems resulting from or arising out of
the failure or malfunction of any electrical, air conditioning or other system
serving the Building, and Tenant hereby expressly waives rights to make any such
claim against Landlord.
9. DESTRUCTION OR DAMAGE TO PREMISES
(a) Tenant shall promptly notify Landlord of any damage to the
Premises or the Building occasioned by fire, the elements, casualty or any other
cause. If the Premises are totally destroyed (or so substantially damaged as to
be untenantable in the reasonable determination of an architect selected by
Landlord ("Architect")) by storm, fire, earthquake or other casualty or any
ocher cause, Landlord shall have the option to terminate this Lease. In the
event such damage, in the reasonable determination of the Architect
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cannot be repaired within one hundred eighty (180) days from the date of the
Architect's determination (which shall be made not less than thirty (30) days
from the date of such damage or destruction), then this Lease shall terminate.
If, in Architect's reasonable determination, the damage can be repaired and the
Premises restored to Tenant's use within one hundred eighty (180) days from the
date of the Architect's determination, then, if Landlord elects (in Landlord's
sole discretion), Landlord shall repair the damage and restore the Premises
(including the Tenant Improvement Work) to its prior condition.
In the event Landlord fails to complete such restoration with
reasonable diligence within one hundred eighty (180) days of the date of the
Architect's determination, as described above, this Lease may be terminated upon
written notice from either party to the other given not more than ten (10) days
following the expiration of said one hundred eighty (180) day period. In the
event such notice is not given, then this Lease shall remain in force and effect
and Rent shall commence upon delivery of the Premises to Tenant in a tenantable
condition (evidenced by notice to Tenant that the Premises are in Landlord's
judgment substantially repaired). In the event such damage or destruction occurs
within six (6) months of the expiration of the Term, Tenant may, at its option
on written notice to Landlord within thirty (30) days of such destruction or
damage, terminate this Lease as of the date of such destruction or damage.
Tenant shall not have the right to cancel this Lease if the damage to the
Premises is the result of Tenant's willful misconduct.
(b) Unless this Lease is terminated pursuant to Paragraph 9(a)
above, Landlord shall commence and thereafter pursue diligently and as
expeditiously as practicable, the repair and restoration of damage to the
Premises, using standard working methods and procedures; provided, however,
that for purposes of this Paragraph 9, Landlord shall not be obligated to
commence any repair or restoration until insurance proceeds are actually
received by Landlord and Landlord's repair obligations shall be limited to the
extent of the insurance proceeds actually received by Landlord therefor which
have not been required by the holder of any mortgage or deed to secure debt
encumbering any portion of the Property to be applied toward the reduction of
any indebtedness secured by the Property.
(c) The Rent shall abate in proportion to that part of the
Premises (measured in Rentable Square Feet) rendered unfit for use in Tenant's
business as a result of such damage or casualty. The nature and extent of
interference to Tenant's ability to conduct business in the Premises shall be
considered in determining the amount of said abatement, and the abatement shall
commence and continue from the date the damage occurred until ten (10) days
after the date Landlord substantially completes the repair and restoration of
the Premises and gives notice to Tenant that said repairs and restoration are
substantially completed, or until Tenant again uses the Premises or the portions
thereof rendered unusable, whichever occurs first.
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(d) Notwithstanding anything to the contrary contained or
implied elsewhere in this Lease, Landlord is not and shall not be obligated to
repair or restore damage to Tenant's trade fixtures, furniture, furnishings,
equipment or other personal property, or any Tenant's Work, except for the
Tenant Improvement Work.
(e) If during the Term of this Lease, the Building is so damaged
by fire or other casualty or any other cause (regardless of whether the Premises
also are damaged) such that (i) in Landlord's reasonable judgment repair and
restoration of the Building is economically infeasible; (ii) the holder of any
mortgage or deed to secure debt encumbering the Building or the Property shall
not allow adequate insurance proceeds to be made available for repair and
restoration; (iii) the damage is not covered by Landlord's insurance; or (iv)
the Lease is in the last twelve (12) months of its Term, then Landlord may
cancel this Lease by giving written notice thereof within thirty (30) days after
Landlord knows of the damage to the Building. Any such cancellation notice must
specify the cancellation date, which shall be at least thirty (30) but no more
than sixty (60) days after the date notice of cancellation is given.
(f) If either party cancels this Lease as permitted under this
Paragraph 9, then this Lease shall end on the date specified in the cancellation
notice. The Rent, including any additional rent, and other charges shall be
payable up to the cancellation date, after taking into account any applicable
abatement. Landlord shall promptly refund to Tenant any prepaid, unaccrued Rent
and additional rent (after taking into account any applicable abatement), plus
the Security Deposit, if any, less any sums then owing by Tenant to Landlord.
10. DEFAULT BY TENANT; LANDLORD'S REMEDIES
(a) The occurrence of any of the following shall constitute an
event of default hereunder by Tenant:
(i) The Rent or any other sum of money due of Tenant
hereunder is not paid (1) within five (5) days after receipt by Tenant of notice
from Landlord of late payment, which notice Landlord shall be obligated to give
not more than two (2) times in any calendar year; or (2) after Landlord has
given two (2) late payment notices to Tenant in any calendar year, for the
balance of such calendar year, within ten (10) days of the date when due;
(ii) Any petition is filed by or against Tenant under any
section or chapter of the National or Federal Bankruptcy Act or any other
applicable Federal or State bankruptcy, insolvency or other similar law, and, in
the case of a petition filed against
20
Tenant, such petition is not dismissed within sixty (60) days after the date of
such filing; if Tenant shall become insolvent or transfer property to defraud
creditors; if Tenant shall make an assignment for the benefit of creditors; or
if a receiver is appointed for any of Tenant's assets;
(iii) Tenant fails to bond off or otherwise remove any lien
filed against the Premises or the Building by reason of Tenant's actions, within
fifteen (15) days after Tenant has notice of the filing of such lien;
(iv) Tenant fails to observe, perform and keep the
covenants, agreements, provisions, stipulations, conditions, and Rules and
Regulations herein contained to be observed, performed and kept by Tenant and
persists in such failure after twenty (20) days written notice by Landlord
requiring that Tenant remedy, correct, desist or comply (or if any such failure
to comply on the part of Tenant would reasonably require more than twenty (20)
days to rectify, unless Tenant commences rectification within the twenty (20)
day period and thereafter promptly, effectively and continuously proceeds with
the rectification of the failure to comply on the part of Tenant and, in all
such events, cures such failure to comply on the part of Tenant no later than
sixty (60) days after such notice);
(v) If all or any part of this Lease shall be assigned,
or if all or any part of the Premises shall be sublet, either voluntarily or by
operation of law, except in strict accordance with the requirements of Paragraph
11 hereof;
(vi) If Tenant shall default with respect to any other
lease or agreement between Landlord and Tenant;
(vii) Tenant or any guarantor of Tenant's obligations
("Guarantor") (if either is a corporation) is liquidated or dissolved or its
charter expires or is revoked, or Tenant or Guarantor (if either is a
partnership or business association) is dissolved or partitioned, or Tenant or
Guarantor (if either is a trust) is terminated or expires, or if Tenant or
Guarantor (if either is an individual) dies.
(b) Upon the occurrence of an event of default, Landlord shall
have the option to do and perform any one or more of the following:
(i) Terminate this Lease, in which event Tenant shall
immediately surrender the Premises to Landlord. If Tenant shall fail to do so,
Landlord may, without further notice and without prejudice to any other remedy
Landlord may have, enter upon the Premises without the requirement of resorting
to the dispossessory procedures and expel or remove Tenant and Tenant's effects
without being liable for any claim for trespass or damages therefor. Upon any
such termination, Tenant shall remain liable to
21
Landlord for damages, due and payable monthly on the day Rent would have been
payable hereunder, in an amount equal to the Rent and any ocher amounts which
would have been owing by Tenant for the balance of the Term, had this Lease not
been terminated, less the net proceeds, if any, of any reletting of the
Premises by Landlord, after deducting all of Landlord's costs and expenses
(including, without limitation, brokerage and attorneys' fees and expenses)
incurred in connection with or in any way related to the termination of this
Lease, eviction of Tenant and such reletting; and/or
(ii) Declare the entire amount of Rent calculated on the
current rate being paid by Tenant, and other sums which in Landlord's reasonable
determination would become due and payable during the remainder of the Term
(including, but not limited to, increases in Rent pursuant to Paragraph 2(b) and
3 herein), discounted to present value by using a reasonable discount rate
selected by Landlord, to be due and payable immediately. Upon such acceleration
of such amounts, Tenant agrees to pay the same at once, together with all Rent
and other amounts theretofore due, at Landlord's address as provided herein;
provided however, that such payment shall not constitute a penalty or forfeiture
but shall constitute liquidated damages for Tenant's failure to comply with the
terms and provisions of this Lease (Landlord and Tenant agreeing that Landlord's
actual damages in such an event are impossible to ascertain and that the amount
set forth above is a reasonable estimate thereof). Upon making such payment,
Tenant shall receive from Landlord all rents received by Landlord from other
tenants renting the Premises during the Term, provided that the monies to which
Tenant shall so become entitled shall in no event exceed the entire amount
actually paid by Tenant to Landlord pursuant to the preceding sentence, less all
of Landlord's costs and expenses (including, without limitation, brokerage and
reasonable attorneys' fees and expenses) incurred in connection with or in any
way related to termination of this Lease, eviction of Tenant and the reletting
of the Premises. The acceptance of such payment by Landlord shall not constitute
a waiver of rights or remedies to Landlord for any failure of Tenant thereafter
occurring to comply with any term, provision, condition or covenant of this
Lease; and/or
(iii) Enter the Premises as the agent of Tenant without the
requirement of resorting to the dispossessory procedures and without being
liable for any claim for trespass or damages therefor, and, in connection
therewith, rekey the Premises, remove Tenant's effects therefrom and store the
same at Tenant's expense, without being liable for any damage thereto, and relet
the Premises as the agent of Tenant, with or without advertisement, by private
negotiations or otherwise, for any term Landlord deems proper, and receive the
rent therefor. Tenant shall pay Landlord on demand any deficiency that may arise
by reason of such reletting, but Tenant shall not be entitled to any surplus so
arising. Tenant shall reimburse Landlord for all costs and expenses (including,
without limitation, brokerage and reasonable attorneys' fees and expenses)
incurred in connection with or in any way related to the eviction of Tenant and
reletting the Premises, and for the amount of any
22
other Rent which would have been due from Tenant to Landlord hereunder which is
not recovered from reletting or due to inability to relet the Premises.
Landlord, in addition to but not in lieu of or in limitation of any other right
or remedy provided to Landlord under the terms of this Lease or otherwise (but
only to the extent such sum is not reimbursed to Landlord in conjunction with
any other payment made by Tenant to Landlord), shall have the right to be
promptly repaid by Tenant the amount of all reasonable sums expended by Landlord
and not repaid by Tenant in connection with preparing or improving the Premises
to Tenant's specifications and any and all costs and expenses incurred in
renovating or altering the Premises to make it suitable for reletting; and/or
(iv) As agent of Tenant, do whatever Tenant is obligated to
do by the provisions of this Lease, including, but not limited to, entering the
Premises, without being liable to prosecution or any claims for damages in order
to accomplish this purpose. Tenant agrees to reimburse Landlord immediately upon
demand for any expenses which Landlord may incur in thus effecting compliance
with this Lease on behalf of Tenant, and Tenant further agrees that Landlord
shall not be liable for any damages resulting to Tenant from such action,
whether caused by the negligence of Landlord or otherwise; and/or
(v) Pursue any other right or remedy available to Landlord
at law or in equity.
(c) Pursuit by Landlord or any of the foregoing remedies shall
not preclude the pursuit of any damages incurred, or of any of the other
remedies provided herein or available, at law or in equity.
(d) No act or thing done by Landlord or Landlord's employees or
agents during the Term shall be deemed an acceptance of a surrender of the
Premises. Neither the mention in this Lease of any particular remedy, nor the
exercise by Landlord of any particular remedy hereunder, or at law or in equity,
shall preclude Landlord from any other remedy Landlord might have under this
Lease, or at law or in equity. Any waiver of or redress for any violation of any
covenant or condition contained in this Lease or any of the Rules and
Regulations now or hereafter adopted by Landlord, shall not prevent a subsequent
act, which would have originally constituted a violation, from having all the
force and effect of an original violation. The receipt by Landlord of Rent with
knowledge of the breach of any covenant in this Lease shall not be deemed a
waiver of such breach.
11. ASSIGNMENT AND SUBLETTING
(a) Tenant shall not sublet any part of the Premises, nor
assign, pledge or encumber this Lease or any interest herein, without the prior
written consent of
23
Landlord. Landlord shall be entitled to deny consent to an assignment or
sublease if, by way of illustration but not limitation, the rate of
compensation, including, but not limited to, all rent, requested by Tenant for
the portion of the Premises to be subleased or for the assignment of the Lease
would materially impact upon or impair, in Landlord's reasonable judgment,
Landlord's ability to rent space in the Building at the then market rate as
offered by Landlord or if the financial statements of the proposed assignee or
sublessee are unsatisfactory. Consent by Landlord to one assignment or sublease
shall not destroy or waive this provision, and all later assignments and
subleases shall likewise be made only upon prior written consent of Landlord. In
the event a sublease or assignment is consented to by Landlord, any sublessees
or assignees shall become liable directly to Landlord for all obligations of
Tenant hereunder without relieving or in any way modifying Tenant's liability
hereunder, In the event Landlord gives its consent to any such assignment or
sublease, fifty percent (50%) of any rent or other cost to the assignee or
subtenant for all or any portion of the Premises over and above the Rent payable
by Tenant for such space shall be due and payable, and shall be paid, to
Landlord. In the event a sublease or assignment is made as herein provided,
Tenant shall pay Landlord a charge equal to the reasonable and customary third-
party costs incurred by Landlord, in Landlord's reasonable judgment (including,
but not limited to, the use and time of Landlord's personnel), for all of the
necessary legal and accounting services required to accomplish such assignment
or subletting, as the case may be. Any transfer, assignment or sublease of all
or any portion of the Premises or Tenant's interest under this Lease made
without Landlord's consent shall be void and of no force or effect.
(b) The sale or transfer of Tenant's voting stock (if not a publicly
traded corporation) or partnership interest (if a partnership) resulting in the
transfer of control of a majority of such stock or interest, or the occupancy of
the Premises by any successor firm of Tenant or by any firm into which or with
which Tenant may become merged or consolidated shall be deemed an assignment of
this Lease requiring the prior written consent of Landlord. Notwithstanding the
foregoing to the contrary, Tenant may assign this Lease to a corporation
resulting from the merger by Tenant with another entity or to a corporation
acquiring all or substantially all of Tenant's assets as a going concern of the
business that is conducted from the Premises without Landlord's consent provided
that (i) Tenant, in advance of such assignment, provides written notice to
Landlord containing such financial information regarding the surviving entity or
acquiring entity as shall reasonably requested by Landlord to assess its
financial condition, (ii) the net worth of such surviving entity shall be at
least equal to that of Tenant on the date of execution of this Lease (adjusted
for inflation), (iii) the assignee assumes the obligations of the Tenant under
this Lease in writing, and (iv) Tenant remains liable under the Lease.
(c) Any assignment or sublease by Tenant to any corporation or
partnership that is controlled by, or is under common control with, Cognizant
Corporation
24
may be made on prior notice to Landlord but shall not require the consent of
Landlord, provided that IMS America, Ltd. shall remain liable under this Lease,
and any further sublease or assignment shall be subject to all of the terms and
conditions of this Section 11.
12. CONDEMNATION
(a) If all of the Premises, or a part of such Premises such that
the Premises in the commercially reasonable judgment of the Architect are
untenantable, are taken by virtue of eminent domain or other similar proceeding
or are conveyed in lieu of such taking, this Lease shall expire on the date when
title or right of possession shall vest, and any Rent paid for any period beyond
said date shall be repaid to Tenant. In the event of a partial taking where this
Lease is not terminated, the Rent shall be adjusted in proportion to the
Rentable Square Feet of Premises taken, as determined by the Architect, and
Landlord shall restore the remaining portion of the Premises to substantially
the same condition they were in prior thereto, to the extent practical, to
render it reasonably suitable for Tenant's use provided, however, that Landlord
shall not be obligated to expend an amount greater than the award received by
Landlord in connection with such restoration, and such restoration shall be
subject to zoning laws and building codes then in existence. In either event,
Landlord shall be entitled to, and Tenant shall not have any right to claim, any
award made in any condemnation proceeding, action or ruling relating to the
Building or the Property; provided however, Tenant shall be entitled to make a
claim in any condemnation proceeding, action or ruling relating to the Building
for Tenant's moving expenses, loss of goodwill and the unamortized value of
leasehold improvements in the Premises actually paid for by Tenant, to the
extent such claim does not in any manner impact upon or reduce Landlord's claim
or award in such condemnation proceeding, acting or ruling.
(b) Landlord shall have, in Landlord's sole discretion, the
option of terminating this Lease in the event any such condemnation, action or
ruling or conveyance in lieu thereof makes continuation of Landlord's use of the
Building as contemplated herein economically unfeasible.
(c) Tenant shall have the right to terminate this Lease in the
event that more than twenty percent (20%) of the Rental Square Footage of the
Premises are taken by virtue of eminent domain during the last six (6) months of
the Term.
13. RIGHT TO ENTER
Landlord, its agents or employees may enter the Premises at all
reasonable times (including Business Hours) with at least twenty-four (24) hours
advance notice, and at
25
any time without notice in the event of an emergency, to: (a) exhibit the
Premises to prospective purchasers or tenants of the Building or the Premises;
(b) inspect the Premises to see that Tenant is complying with its obligations
hereunder; (c) make repairs, alterations, improvements and additions required of
Landlord under the terms hereof, or that are advisable in Landlord's
determination to preserve the integrity, safety and good order of all or any
part of the Premises or the Building, including any systems serving the Building
which run through the Premises, or which may be necessary to comply with
applicable laws, ordinances or other requirements of any governmental entity or
agency having jurisdiction; (d) provide janitorial or other services required
under this Lease; and (e) remove any alterations, additions or improvements made
by Tenant in violation of Paragraph 7(b) hereof.
14. SUBORDINATION
(a) This Lease shall be subject and subordinate to any
underlying land leases or deed to secure debt which may now or hereafter affect
this Lease, the Building or the Property and also to all renewals,
modifications, extensions, consolidations, and replacements of such underlying
land leases and such deeds to secure debt. Such subordination shall be effective
without the necessity of any further instrument or act on the part of Tenant to
effectuate such subordination, but Tenant agrees that, in confirmation of the
subordination set forth in this Paragraph 14, Tenant shall, at Landlord's
request, execute and deliver such further instruments as may be desired by any
holder of a deed to secure debt (a "Mortgagee") or by any lessor under any such
underlying land leases (a "Lessor"). Tenant shall also deliver to any such
Mortgagee or Lessor within ten (10) business days of written request an
attornment agreement, providing that such Tenant shall continue to abide by and
comply with the terms and conditions of this Lease in the event such Mortgagee
or Lessor takes title to the Property, so long as the Mortgagee or Lessor
delivers to Tenant a non-disturbance agreement (which non-disturbance agreement
may be a part of the above-mentioned attornment agreement), which non-
disturbance agreement shall provide that so long as Tenant continues to abide by
the terms and conditions of this Lease, Mortgagee or Lessor, whichever the case
may be, will permit Tenant to continue to occupy the Premises. Landlord shall
use reasonable efforts to obtain a non-disturbance and attornment agreement for
Tenant from its existing Mortgagee, and from any future Mortgagee, provided that
Tenant shall not interfere with Landlord's relationship with any such Mortgagee
and the failure of such Mortgagee to provide such subordination and attornment
agreement shall not affect the validity of this Lease or of the automatic
subordination of this Lease to any mortgage held by such Mortgagee as provided
above.
(b) In the event any proceedings are brought for the foreclosure
of, or in the event of exercise of the power of sale or conveyance in lieu of
foreclosure under any deed to secure debt, Tenant shall at the option of the
purchaser at such foreclosure or
26
other sale, attorn to such purchaser and recognize such person as Landlord under
this Lease. Tenant agrees that the institution of any suit, action or other
proceeding by a Mortgagee or a Lessor, a sale of the Property pursuant to the
powers granted to a Mortgagee under its deed to secure debt, or a termination or
cancellation of a ground lease by Lessor, shall not, by operation of law or
otherwise, result in the cancellation or the termination of this Lease or of the
obligations of the Tenant hereunder.
(c) In the event that such purchaser requests and accepts such
attornment, from and after the time of such attornment, Tenant shall have the
same remedies against such purchaser for the breach of an agreement contained in
this Lease that Tenant might have had against Landlord if the deed to secure
debt had not been terminated or foreclosed except that such purchaser shall not
be (i) liable for any act or omission of the prior Landlord; (ii) subject to any
offsets or defenses which Tenant might have against the prior Landlord; (iii)
bound by any Rent which Tenant might have paid more than one (1) month in
advance to the prior Landlord, or (iv) bound by any Security Deposit which
Tenant might have paid to Landlord, unless such Security Deposit is actually
received by such purchaser.
15. INDEMNIFICATION AND HOLD HARMLESS
(a) Tenant does hereby agree to defend, indemnify and hold
Landlord harmless from and against any and all liability for any injury to or
death of any person or persons or any damage to property in any way arising out
of or in connection with the condition, use or occupancy of the Premises, or in
any way arising out of any activities in or about the Premises, the Building or
other portions of the Property, of Tenant, its assignees or subtenants or of the
respective agents, employees, licensees, contractors or invitees of Tenant or
its assignees or subtenants, and from all costs, expenses and liabilities
(including, but not limited to, court costs and reasonable attorneys' fees)
incurred by Landlord in connection therewith, excepting however, liability
caused by or resulting from the negligence or willful misconduct of Landlord or
its agents, employees, licensees or contractors.
(b) Tenant covenants and agrees that Landlord shall not be
liable to Tenant for any injury to or death of any person or persons or for
damage to any property of Tenant, or any person claiming through Tenant, arising
out of any accident or occurrence in or about the Premises or other portions of
the Building or the Property, including, but not limited to, injury, death or
damage caused by the Premises or other portions of the Building becoming out of
repair or caused by any defect in or failure of equipment, pipes or wiring, or
caused by broken glass, or caused by the backing up of drains, or caused by gas,
water, steam, electricity, or oil leaking, escaping or flowing into the
Premises, or caused by fire or
27
smoke or caused by the acts or omissions of other tenants and occupants of the
Building.
(c) Tenant agrees to report in writing to Landlord any defective
condition in or about the Premises known to Tenant, and further agrees to
attempt to contact Landlord by telephone immediately in such instance.
(d) Landlord does hereby agree to defend, indemnify and hold
Tenant harmless from and against any and all liability for any injury to or
death of any person or persons or damage to property arising out of Landlord's
or Landlord's agent's, employees', licensees', contractors' or invitees'
negligent acts or omissions, and from all costs, expenses and liabilities
(including, but not limited to, court costs and reasonable attorneys' fees)
incurred by Tenant in connection therewith, excepting, however, liability caused
by or resulting from the negligence or willful misconduct of Tenant, its agents,
employees, licensees, contractors or invitees.
16. INSURANCE
(a) Tenant shall carry (at its sole expense during the Term) (i)
all-risk insurance, or its equivalent, insuring Tenant's interest in its
improvements to the Premises and any and all furniture, equipment, supplies,
contents and other property owned, leased, held or possessed by it and contained
therein, such insurance coverage to be in an amount equal to the full insurable
value of such improvements and property, as such may increase from time to time;
and (ii) worker's compensation insurance as required by applicable law. Tenant
shall also procure and maintain throughout the Term a policy or policies of
insurance, insuring Tenant, Landlord and any other person designated by
Landlord, against any and all liability for injury to or death of a person or
persons and for damage to property occasioned by or arising out of any
construction work being done on the Premises, or arising out of the condition,
use, or occupancy of the Premises, or other portions of the Building or
Property, such policy to have a combined single limit of not less than Three
Million and No/100 Dollars ($3,000,000) for any bodily injury or property damage
occurring as a result of or in conjunction with the above. Landlord and Tenant
shall each have included in all policies of insurance respectively obtained by
them with respect to the Building or the Premises a waiver by the insurer of all
right of subrogation against the other in connection with any loss or damage
thereby insured against. To the full extent permitted by law, Landlord and
Tenant each waive all right of recovery against the other for, and agree to
release the other from liability for, loss or damage to the extent such loss or
damage is covered by valid and collectible insurance in effect at the time of
such loss or damage; provided however, that the foregoing release by each party
is conditioned upon the other party's carrying insurance with the above
described waiver of subrogation, and if such coverage is not obtained or
maintained by either party, then the other party's foregoing
28
release shall be deemed to be rescinded until such waiver is either obtained or
reinstated. All said insurance policies shall be carried with companies licensed
to do business in the State of New Jersey reasonably satisfactory to Landlord
and shall be noncancelable except after thirty (30) days' written notice to
Landlord. Duly executed certificates of such insurance shall be delivered to
Landlord prior to the Commencement Date and at least thirty (30) days prior to
the expiration of each respective policy term. Each insurance policy will
contain a provision requiring thirty (30) days prior written notice to Landlord
and any named insured if the policy is cancelled or not renewed.
(b) Throughout the making of any alterations or improvements
(other than mere decorations) by Tenant, its agent, contractors or employees,
Tenant, at its expense, shall carry or cause to be carried (i) workmen's
compensation insurance in statutory limits, covering all persons employed in
connection with such Improvements, (ii) all-risk property insurance, completed
value form, covering all physical loss (including any loss of or damage to
supplies, machinery and equipment) in connection with the making of such
alterations or improvements, and (iii) comprehensive liability insurance, with
completed operations endorsement, covering any occurrence in or about the
Property in connection with such improvements, which comprehensive liability
insurance policy shall have a combined single limit of not less than Three
Million and No/100 dollars ($3,000,000). Tenant shall furnish Landlord with
satisfactory evidence that such insurance is in effect before the commencement
of its improvements and, on request, at reasonable intervals thereafter. Duly
executed certificates of such insurance shall be delivered to Landlord prior to
the commencement of any such alterations or improvements. Each policy shall name
Landlord and any other person designated by Landlord as an additional insured
and shall contain a provision requiring thirty (30) days prior written notice to
Landlord and any named insured in the policy is cancelled or not renewed.
(c) Throughout the term of this Lease, Landlord shall carry
commercial general public liability insurance and extended fire and casualty
insurance covering the Building and Property, with such companies and in such
amounts (with such deductibles) as Landlord shall reasonably determine.
17. ENTIRE AGREEMENT - NO WAIVER
This Lease contains the entire agreement of the parties hereto and no
representations, inducements, promises or agreements, oral or otherwise, between
the parties not embodied herein shall be of any force and effect. The failure of
either party to insist in any instance on strict performance of any covenant or
condition hereof, or to exercise any option herein contained, shall not be
construed as a waiver of such covenant, condition or option in any other
instance. This Lease cannot be changed or terminated orally, and can be
29
modified only in writing, executed by each party hereto.
18. HOLDING OVER
If Tenant remains in possession of the Premises after expiration of
the Term, or after any permitted termination of the Lease by Landlord, with
Landlord's acquiescence and without any written agreement between the parties,
Tenant shall be a tenant at sufferance and such tenancy shall be subject to all
the provisions hereof, except that the Monthly Base Rental for said holdover
period shall be one hundred fifty percent (150%) of the amount of Rent due in
the last full month of the Term. There shall be no renewal of this Lease by
operation of law. Nothing in this Paragraph shall be construed as a consent by
Landlord to the possession of the Premises by Tenant after the expiration or
earlier termination of the Term.
19. HEADINGS
The headings in this Lease are included for convenience only and shall
not be taken into consideration in any construction or interpretation of any
part of this Lease.
20. NOTICES
(a) Any notice by either party to the other shall be valid only
if in writing and shall be deemed to be duly given only if delivered personally
or sent by certified mail or via reputable overnight courier that issues written
receipts, addressed (i) if to Tenant, at the Premises, with a copy to Cognizant
Corporation, 200 Nyala Farms Road, Westport, Connecticut 06880, Attention:
Director of Global Real Estate and (ii) if to Landlord, at Landlord's address
set forth above, or at such other address for either party as that party may
designate by notice to the other. Notice shall be deemed given, if delivered
personally, upon delivery thereof, and if mailed, upon the mailing thereof.
(b) Tenant hereby appoints as its agent to receive service of
all dispossessory or distraint proceedings Corporation Trust Corporation, 820
Bear Tavern Road, West Trenton, New Jersey 08628.
21. HEIRS, SUCCESSORS, AND ASSIGNS - PARTIES
(a) The provisions of this Lease shall bind and inure to the
benefit
30
of Landlord and Tenant, and their respective permitted successors, heirs, legal
representatives and assigns, it being understood that the term "Landlord" as
used in this Lease means only the owner or prime lessee (or the ground lessee)
for the time being of the Property and Building of which the Premises are a
part, so that in the event of any sale or sales of said Property or assignment
of the prime lease (or of any ground lease thereof), Landlord named herein shall
be and hereby is entirely released of all covenants and obligations of Landlord
hereunder accruing thereafter, and it shall be deemed without further agreement
that the purchaser, assignee, or the ground lessee, as the case may be, has
assumed and agreed to carry out any and all covenants and obligations of
Landlord hereunder during the period such party has possession of the Property
and Building. Should the Property and the entire Building be severed as to
ownership by sale and/or lease, then the owner of the entire Building or lessee
of the entire Building that has the right to lease space in the Building to
tenants shall be deemed "Landlord". Tenant shall be bound to any such succeeding
party for performance by Tenant of all the terms, covenants, and conditions of
this Lease and agrees to execute any attornment agreement not in conflict with
the terms and provisions of this Lease at the request of any such party.
(b) The parties "Landlord" and "Tenant" and pronouns relating
thereto, as used herein, shall include male, female, singular and plural,
corporation, partnership or individual, as may fit the particular parties.
22. ATTORNEY'S FEES
In the event of any law suit or court action between Landlord and
Tenant arising out of or under this Lease or the terms and conditions stated
herein, the prevailing party in such law suit or court action shall be entitled
to and shall collect from the non-prevailing party the reasonable attorney's
fees and court costs actually incurred by the prevailing party with respect to
said lawsuit or court action.
23. SECURITY DEPOSIT
(a) Tenant has this day deposited with Landlord the Security
Deposit (if any) specified in Paragraph 2 as security for the performance by
Tenant of all of the terms, covenants and conditions of this Lease upon Tenant's
pan to be performed. Landlord shall have no obligation to segregate such
Security Deposit from any other funds of Landlord, and interest earned on such
Security Deposit, if any, shall belong to Landlord. The Security Deposit shall
be returned to Tenant within thirty (30) days after the expiration of the Term
hereof, provided Tenant has fully performed its obligations hereunder. Landlord
shall have the right to apply any party of the Security Deposit to cure any
default of Tenant and if Landlord does so, Tenant shall upon demand deposit with
Landlord the amount so
31
applied so that Landlord shall have the full Security Deposit on hand at all
times during the Term of this Lease. In the event of a sale or lease of the
Building subject to this Lease, Landlord shall transfer the Security Deposit to
the vendee or lessee, and Landlord shall thereupon be released from all
liability for the return of such Security Deposit. Tenant shall look solely to
the successor Landlord for the return of said Security Deposit. This provision
shall apply to every transfer or assignment made of the Security Deposit to a
successor Landlord. The Security Deposit shall not be assigned or encumbered by
Tenant without the prior written consent of Landlord and any such unapproved
assignment or encumbrance shall be void.
(b) Notwithstanding the foregoing, in the event that after the
execution of this Lease and delivery to Landlord of the Security Deposit (i)
Tenant provides Landlord with a guaranty of the Rent payments hereunder, in form
and substance acceptable to Landlord in its sole discretion, signed by Cognizant
Corporation, or (ii) Tenant provides Landlord with financial statements and
other financial information regarding Tenant as is requested by Landlord which
establishes to Landlord, in Landlord's sole discretion, that Tenant has a
significant net worth, then Landlord shall return the Security Deposit to Tenant
and Tenant's obligations under this Paragraph 23 shall terminate.
24. RULES AND REGULATIONS
The Rules and Regulations set forth in Exhibit "C" are a part of this
-----------
Lease. Landlord may from time to time amend, modify, delete or add new and
additional reasonable Rules and Regulations for the use, operation, safety,
cleanliness and care of the Premises and the Building. Such new or modified
Rules and Regulations shall be effective upon notice thereof to Tenant. Tenant
will cause its employees and agents, or any others permitted by Tenant to occupy
or enter the Premises to at all times abide by the Rules and Regulations. In the
event of any breach of any Rules and Regulations, Landlord shall have all
remedies in this Lease provided for in the event of default by Tenant and shall,
in addition, have any remedies available at law or in equity, including but not
limited to, the right to enjoin any breach of such Rules and Regulations.
Landlord shall not be responsible to Tenant for the nonobservance by any other
tenant or person of any such Rules and Regulations.
25. INTENTIONALLY DELETED
26. LATE PAYMENTS
Any payment due of Tenant hereunder not received by Landlord within
five (5) days of the date when due shall be assessed a five percent (5%) charge
for Landlord's
32
administrative and other costs in processing and pursuing the payment of such
late payment, and shall be assessed an additional four percent (4%) charge for
the aforesaid costs of Landlord for each month thereafter until paid in full.
Acceptance by Landlord of a payment, and the cashing of a check, in an amount
less than that which is currently due shall in no way affect Landlord's rights
under this Lease and in no way be an accord and satisfaction. This provision
does not prevent Landlord from declaring the non-payment of Rent when due an
event of default hereunder.
27. ESTOPPEL CERTIFICATE
At any time during the period beginning with the execution of this
Lease and ending with the termination of this Lease, Tenant shall, within ten
(10) business days of the request by Landlord, execute, acknowledge and deliver
to Landlord, any Mortgagee, prospective Mortgagee, Lessor, or any prospective
purchaser of the Property, the Building, or both (as designated by Landlord), or
any prospective purchaser or transferee of the Building an estoppel certificate
in recordable form, or in such other form as Landlord may from time to time
require, evidencing whether or not (a) this Lease is in full force and effect;
(b) this Lease has been amended in any way; (c) Tenant has accepted and is
occupying the Premises; (d) there are any existing defaults on the part of
Landlord hereunder or defenses or offsets against the enforcement of this Lease
to the knowledge of Tenant (specifying the nature of such defaults, defenses or
offsets, if any); (e) the date to which Rent and other amounts due hereunder, if
any, have been paid; and (f) any such other information as may be reasonably
requested by Landlord regarding the Lease. Each certificate delivered pursuant
to this Paragraph may be relied on by Landlord, any prospective purchaser or
transferee of Landlord's interest hereunder, or any Mortgagee or prospective
Mortgagee, or any Lessor.
28. SEVERABILITY AND INTERPRETATION
(a) If any clause or provision of this Lease shall be deemed
illegal, invalid or unenforceable under present or future laws effective during
the Term, the remainder of this Lease shall not be affected by such illegality,
invalidity or unenforceable, and in lieu of each clause or provision of this
Lease that is illegal, invalid or unenforceable, there shall be added as a part
of this Lease a clause or provision as similar in terms to such illegal, invalid
or unenforceable clause or provision as may be possible and be legal, valid and
enforceable.
(b) Should any provisions of this Lease require judicial
interpretation, it is agreed that the court interpreting or construing the same
shall not apply a presumption that the terms of any such provision shall be more
strictly construed against one
party or the other by reason of the rule of construction that a document is to
be construed most strictly against the party who itself or through its agent
prepared the same, it being agreed that the agents of all parties hereto have
participated in the preparation of this Lease.
29. MULTIPLE TENANTS
If more than one individual or entity comprises and constitutes
Tenant, then all individuals and entities comprising Tenant are and shall be
jointly and severally liable for the due and proper performance of Tenant's
duties and obligations arising under or in connection with this Lease.
30. FORCE MAJEURE
Landlord shall be excused for the period of any delay and shall not be
deemed in default with respect to the performance of any of the terms,
covenants, and conditions of this Lease when prevented from so doing by causes
beyond Landlord's control, which shall include, but not be limited to, all labor
disputes, governmental regulations or controls, fire or other casualty,
inability to obtain any material or services, or acts of God.
31. QUIET ENJOYMENT
So long as Tenant is in full compliance with terms and conditions of
this Lease, Landlord shall warrant and defend Tenant in the quiet enjoyment and
possession of the Premises during the Term against any and all claims made by,
through or under Landlord, subject to the terms of this Lease.
32. BROKERAGE COMMISSION; INDEMNITY
TENANT WARRANTS AND REPRESENTS THAT IT HAS DEALT WITH NO BROKER OR
FINDER IN CONNECTION WITH THIS LEASE EXCEPT FOR KOLL REAL ESTATE SERVICES
COMPANY AND THE EDWARD S. GORDON CO. OF NEW JERSEY, INC. ("BROKERS"). TENANT
AGREES TO DEFEND AND INDEMNIFY LANDLORD AGAINST ANY BROKERAGE CLAIMS RELATED TO
THIS LEASE OTHER THAN BY BROKERS.
33. EXCULPATION OF LANDLORD
34
Landlord's liability to Tenant with respect to this Lease shall
be limited solely to Landlord's interest in the Building. Neither Landlord, nor
any of the partners of Landlord, nor any officer, director, or shareholder of
Landlord shall have any personal liability whatsoever with respect to this
Lease.
34. ORIGINAL INSTRUMENT
Any number of counterparts of this Lease may be executed, and each
such counterpart shall be deemed to be an original instrument.
35. NEW JERSEY LAW
This Lease has been made under and shall be construed and interpreted
under and in accordance with the laws of the State of New Jersey.
36. NO RECORDATION OF LEASE
Without the prior written consent of Landlord, neither this Lease nor
any memorandum thereof shall be recorded or placed on public record.
37. HAZARDOUS WASTES/ENVIRONMENTAL COMPLIANCE
(a) Tenant covenants and agrees that Tenant will not store, use,
or dispose of any Hazardous Materials (as hereinafter defined) on or about the
Premises, Building or Property. Tenant further agrees to indemnify and hold
Landlord harmless from and against all claims, costs, liabilities, losses and
damages, including but not limited to reasonable attorneys' fees and costs of
litigation, incurred as a result of a release or threatened release of Hazardous
Materials on the Premises, Building or Property caused by Tenant, its agents,
employees, contractors, invitees or others for which Tenant is legally
responsible. The foregoing indemnification of Landlord by Tenant includes,
without limitation, all costs incurred by or imposed upon Landlord in connection
with any judgments, damages, penalties, fines, liabilities or losses (including,
without limitation, diminution in value of the Premises, damages for the loss or
restriction on use of any space or of any amenity in or around the Building in
which the Premises are located, damages arising from any adverse impact on
marketing of space, and sums paid in settlement of claims, attorneys' fees,
consultant fees and expert fees) or in connection with the investigation of site
conditions or any clean-up, or remedial, removal or restoration work required by
any federal, state or
35
local governmental agency or political subdivision occurring as a result of the
presence of any Hazardous Material in the Premises caused or permitted by Tenant
or for which Tenant is legally liable. Tenant's obligations under this Paragraph
will survive the termination or early expiration of the Lease. Any default under
this Paragraph 37 shall be a material default enabling Landlord to exercise any
of the remedies set forth in this Lease.
(b) Tenant agrees to comply with the provisions of the New
Jersey Industrial Site Recovery Act ("ISRA"), if applicable, or any similar
applicable laws, prior to its termination of any activities in the Premises or
the expiration of the term of this Lease, whichever is earlier. If ISRA is not
applicable, Tenant will use best efforts to obtain a Letter of Nonapplicability
from the New Jersey Department of Environmental Protection by the time stated in
the previous sentence. If in connection with a sale, transfer, or mortgage of
the Real Property by Landlord or other transaction by the Landlord where
Landlord is required or deems it desirable to comply with ISRA, Tenant will
cooperate with Landlord and provide any information reasonably requested by
Landlord to comply with ISRA or to obtain a Letter of Nonapplicability.
(c) Landlord shall indemnify and hold harmless Tenant from any
and all claims, liabilities, losses, damages or costs (including, without
limitation, reasonable attorneys' fees) arising out of or related to any and all
Environmental Conditions or Environmental Compliance Liability, except those
caused by Tenant, or its agents, employees, contractors, invitees or others for
whom Tenant is legally responsible, or arising out of Tenant's use of the
Premises.
(d) For the purposes of this Lease, the following terms shall
be defined as follows:
(i) "Environmental Conditions" shall mean all
circumstances with respect to soil, surface waters, ground waters, ponds, stream
sediment, air, building materials and similar environmental media, on the
Property that may require remedial action and/or that may result in claims
and/or demands by and/or liabilities to third-parties including, but not limited
to, governmental entities.
(ii) "Environmental Compliance Liability" means any and
all liabilities arising under or related to compliance with any Environmental
Law applicable to the Property or any operations or assets associated with the
Property, including, without limitation, the Premises, which may result in
claims and/or demands by and/or liability to third-parties, including, without
limitation, governmental authorities.
(iii) "Hazardous Materials" means any petroleum, petroleum
products, fuel oil, waste oil, explosives, reactive materials, ignitable
materials, corrosive materials, hazardous chemicals, hazardous waste, hazardous
substances, extremely hazardous
36
substances, toxic substances, toxic chemicals, radioactive materials,
pollutants, toxic pollutants, herbicides, fungicides, rodenticides,
insecticides, contaminants, or pesticides including, but not limited to, any
other element, compound, mixture, solution or substance which may pose or
present a potential hazard to human health or to the environment, provided that
in each case the foregoing are listed as "hazardous materials" or "hazardous
substances" under Environmental Laws.
(iv) "Environmental Laws" means any and all federal, state,
local or municipal written and published laws, rules, orders, regulations,
statutes, ordinances, or codes, or requirements of any governmental authority
relating or imposing standards of liability or standards of conduct concerning
air, water, solid waste, and other environmental, health, safety, building, land
use and local government concerns.
38. LEASE BINDING UPON DELIVERY; NO OPTION
Submission of this Lease for examination and negotiation does not
constitute an option to lease or reservation of space for the Premises. This
Lease shall be effective only when executed by both parties and received by
Landlord. If this Lease has been submitted to Tenant in form already signed by
Landlord, it evidences only Landlord's offer to enter into this Lease on the
exact terms provided as delivered, which offer may be revoked at any time and
which may additionally expire at any certain time established by Landlord in
writing.
39. INTENTIONALLY DELETED
40. JURISDICTION; SERVICE; WAIVER OF JURY TRIAL
Tenant hereby consents to the jurisdiction of the courts of the State
of New Jersey or of the United States District Courts of New Jersey. Tenant
hereby waives the requirement of service pursuant to the applicable rules of
such courts, and consents to accept service by certified mail, return receipt
requested, to the address set forth in Paragraph 20(b) above. It is mutually
agreed that Landlord and Tenant hereby waive trial by jury in any action,
proceeding or counterclaim brought by either of the parties hereto against the
other as to any matters arising out of or in any way connected with this Lease.
41. TENANT'S FINANCIAL STATEMENTS
If requested in writing by Landlord, Tenant shall, within ninety (90)
days of the end of each fiscal year of Tenant, deliver to Landlord a current
balance sheet and statement of profit and loss for the preceding year prepared
and reviewed by an independent
37
certified public accountant in accordance with generally accepted accounting
principal consistently applied.
IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be
executed under seal, on the day and year first above written.
"TENANT":
IMS AMERICA, LTD., a New Jersey
corporation
By: /s/ Myron E. Holugiak
-------------------------------------
Name: Myron E. Holugiak
--------------------------------
Title: General Manager
-------------------------------
"LANDLORD":
TOWNSEND PROPERTY TRUST
LIMITED PARTNERSHIP, doing
business in New Jersey as TPT Limited
Partnership
By: DWT ATRIUM. INC., its
general partner
By: /s/[ILLEGIBLE]
----------------------------------
Name: /s/[ILLEGIBLE]
-----------------------------
Title: Vice President
----------------------------
38
EXHIBIT A
---------
SECOND FLOOR PLAN
A-1
EXHIBIT B
---------
ALL THAT CERTAIN TRACT, PARCEL AND LOT OF LAND LYING AND BEING SITUATE IN THE
TOWNSHIP OF FRANKLIN, COUNTY OF SOMERSET, STATE OF NEW JERSEY, BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
BEING KNOWN AS BLOCK 468.01, LOT 21.06 AS SHOWN ON A MAP ENTITLED "AMENDED
SECTION TWO OF THE ATRIUM AT SOMERSET, TOWNSHIP OF FRANKLIN, SOMERSET COUNTY,
NEW JERSEY" FILED IN THE SOMERSET COUNTY CLERK'S OFFICE DECEMBER 14, 1983. AS
MAP NUMBER 2067. BEING FURTHER DESCRIBED AS BEGINNING AT A POINT IN THE MOST
SOUTHEASTERLY LINE OF THE WHOLE TRACT OF WHICH THIS IS A PART BEING DISTANT
1050.23 FEET ALONG SAID OUTSIDE LINE ON A COURSE OF NORTH 48 DEGREES 54
MINUTES 40 SECONDS EAST FROM THE MOST SOUTHERLY CORNER OF THE WHOLE TRACT OF
WHICH THIS IS A PART AND CORNER OF THE LANDS OF WORLDS FAIR ASSOCIATES AND
RUNNING; THENCE
1. ALONG THE NORTHEASTERLY LINE OF LOT 21.08 AS SHOWN ON SAID MAP ON A
COURSE OF NORTH 4.0 DEGREES 51 MINUTES 00 SECONDS WEST A DISTANCE OF 308.94
FEET TO A POINT; THENCE
2. STILL ALONG SAID LINE OF LOT 21.08 IN A NORTHWESTERLY DIRECTION ALONG A
CURVE TO THE RIGHT HAVING A RADIUS OF 60.00 FEET AN ARC DISTANCE OF 79.54 FEET
TO A POINT; THENCE
3. ALONG THE SOUTHEASTERLY LINE OF LOT 21.07 AS SHOWN ON SAID MAP ON A COURSE
OF NORTH 48 DEGREES 44 MINUTES 36 SECONDS EAST A DISTANCE OF 115.14 FEET TO A
POINT; THENCE
4. ALONG THE NORTHEASTERLY LINE OF LOT 21.07 AS SHOWN ON SAID MAP IN A
NORTHWESTERLY DIRECTION ALONG A CURVE TO THE LEFT HAVING A RADIUS OF 60.00
FEET AN ARC DISTANCE OF 30.17 FEET TO A POINT; THENCE
5. STILL ALONG SAID LINE OF LOT 21.07 IN A NORTHWESTERLY DIRECTION ALONG
A CURVE TO THE RIGHT HAVING A RADIUS OF 40.00 FEET AN ARC DISTANCE OF 31.82
FEET TO A POINT; THENCE
6. STILL ALONG SAID LINE OF LOT 21.07 ON A COURSE OF NORTH 40 DEGREES
MINUTES 00 SECONDS WEST A DISTANCE OF 319.66 FEET TO A POINT; THENCE
7. ON A COURSE OF NORTH 48 DEGREES 49 MINUTES 16 SECONDS EAST A
DISTANCE OF 58.43 FEET TO A POINT; THENCE
B-1
8. STILL ALONG THE SOUTHEASTERLY LINE OF LOT 21.03 AS SHOWN ON A MAP ENTITLED
"AMENDED SECTION ONE OF THE ATRIUM AT SOMERSET" FILED IN THE SOMERSET COUNTY
CLERK'S OFFICE JUNE 4, 1982 AS MAP NUMBER 1963, ON A COURSE OF NORTH 48 DEGREES
35 MINUTES 40 SECONDS EAST A DISTANCE OF 324.59 FEET TO A POINT; THENCE
9. STILL ALONG SAID LINE OF LOT 21.03 IN A NORTHERLY DIRECTION ALONG A CURVE
TO THE LEFT HAVING A RADIUS OF 195.00 FEET AN ARC DISTANCE OF 192.08 FEET TO A
POINT; THENCE
10. STILL ALONG SAID LINE OF LOT 21.03 ON A COURSE OF NORTH 7 DEGREES 50
MINUTES 38 SECONDS WEST A DISTANCE OF 7.40 FEET TO A POINT; THENCE
11. STILL ALONG SAID LINE OF LOT 21.03 IN A NORTHERLY DIRECTION ALONG A CURVE
TO THE LEFT HAVING A RADIUS OF 35.00 FEET AN ARC DISTANCE OF 48.34 FEET TO A
POINT; THENCE
12. STILL ALONG A LINE OF LOT 21.03 ON A COURSE OF NORTH 3 DEGREES 00 MINUTES
57 SECONDS EAST A DISTANCE OF 60.00 FEET; THENCE
13. ALONG THE SOUTHERLY LINE OF LOT 21.04 AS SHOWN ON SAID MAP OF SECTION ONE
IN AN EASTERLY DIRECTION ALONG A CURVE TO THE LEFT HAVING A RADIUS OF 250.00
FEET AN ARC DISTANCE OF 193.82 FEET TO A POINT; THENCE
14. STILL ALONG SAID LINE OF LOT 21.04 ON A COURSE OF NORTH 48 DEGREES 35
MINUTES 40 SECONDS EAST A DISTANCE OF 175.00 FEET TO A POINT; THENCE
15. ALONG THE SOUTHWESTERLY LINE OF LOT 21.05 AS SHOWN AS SAID MAP OF SECTION
TWO IN AN EASTERLY DIRECTION ALONG A CURVE TO THE RIGHT HAVING A RADIUS OF
110.00 FEET AN ARC DISTANCE OF 172.79 FEET TO A POINT; THENCE
16. STILL ALONG SAID LINE OF LOT 21.05 ON A COURSE OF SOUTH 41 DEGREES 24
MINUTES 20 SECONDS EAST A DISTANCE OF 250.00 FEET TO A POINT; THENCE
17. STILL ALONG SAID LINE OF LOT 21.05 AND THE SOUTHEASTERLY LINE OF LOT
21.09 IN A SOUTHEASTERLY DIRECTION ALONG A CURVE TO THE LEFT HAVING A RADIUS OF
40.00 FEET AN ARC DISTANCE OF 31.82 FEET TO A POINT; THENCE
18. STILL ALONG SAID LINE OF LOT 21.09 IN A SOUTHEASTERLY DIRECTION ALONG A
CURVE TO THE RIGHT HAVING A RADIUS OF 60.00 FEET AN ARC DISTANCE OF 99.02 FEET
TO A POINT; THENCE
19. STILL ALONG SAID LINE OF LOT 21.09 SOUTH 55 DEGREES 57 MINUTES ??? SECONDS
EAST A DISTANCE OF 290.11 FEET TO A POINT; THENCE
B-2
20. ALONG AN OUTSIDE LINE OF THE WHOLE TRACT OF WHICH THIS IS A PART ON A
COURSE OF SOUTH 15 DEGREES 35 MINUTES 50 SECONDS EAST A DISTANCE OF 97.02 FEET
TO A POINT; THENCE
21. STILL ALONG AN OUTSIDE LINE OF THE WHOLE TRACT ON A COURSE OF SOUTH 48
DEGREES 37 MINUTES 00 SECONDS WEST A DISTANCE OF 904.26 FEET TO A POINT; THENCE
22. STILL ALONG AN OUTSIDE LINE OF THE WHOLE TRACT ON A COURSE OF SOUTH 39
DEGREES 47 MINUTES 00 SECONDS EAST A DISTANCE OF 17.16 FEET TO A POINT; THENCE
23. STILL ALONG AN OUTSIDE LINE OF THE WHOLE TRACT ON A COURSE OF SOUTH 48
DEGREES 54 MINUTES 40 SECONDS WEST A DISTANCE OF 249.51 FEET TO A POINT BEING
THE POINT OR PLACE OF BEGINNING.
TOGETHER WITH AN EASEMENT BEING IDENTIFIED AS FOLLOWS;
TOGETHER WITH AND SUBJECT TO ALL OF THE RIGHT TITLE AND INTEREST OF S/A
ASSOCIATES IN TO AND UNDER THAT CERTAIN DECLARATION OF EASEMENTS DATED APRIL
15, 1982 BY S/A ASSOCIATES RECORDED IN DEED BOOK 1457 PAGE 828 ON APRIL 20,
1982, AS AMENDED BY AMENDMENT TO DECLARATION OF EASEMENTS DATED APRIL 15,
1983 BY S/A ASSOCIATES AND RECORDED IN DEED BOOK 1488 PAGE 315 ON SEPTEMBER
16, 1983
THE ABOVE DESCRIPTION IS IN ACCORDANCE WITH A SURVEY PREPARED BY JOSEPH D.
GREENAWAY, P.L.S. DATED JULY 30, 1996 AND LAST REVISED TO AUGUST 22, 1996.
LOT 21.06, BLOCK 468.1, ON THE OFFICIAL TAX MAP OF FRANKLIN TOWNSHIP
EXHIBIT "C"
-----------
RULES AND REGULATIONS
1. Tenant shall not obstruct or encumber or use for any purpose
other than ingress and egress to and from the Premises any sidewalk, entrance,
passage, court, elevator, vestibule, stairway, corridor, hall or other part of
the Building not exclusively occupied by Tenant. Landlord shall have the right
to control and operate the public portions of the Building and the facilities
furnished for common use of the tenants, in such manner as Landlord deems best
for the benefit of the tenants generally. Tenant shall not permit the visit to
the Premises of persons in such numbers or under such conditions as to
interfere with the use and enjoyment of the entrances, corridors, elevators and
other public portions or facilities of the Building by other tenants. Tenant
shall coordinate in advance with Landlord's property management department all
deliveries to the Building so that arrangements can be made to minimize such
interference. Tenant and its employees shall not use any of the parking spaces
designated for use by visitors only or the roof of the Building except as
specifically authorized in the Lease.
2. Tenant shall not attach, hang or use in connection with any
window or door of the Premises any drape, blind, shade or screen, without
Landlord's prior written consent. All awnings, drapes projections, curtains,
blinds, shades, screens and other fixtures shall be of a quality, type, design
and color, and attached in a manner, approved in writing by Landlord.
3. Tenant shall not place any showcase, mat or other article in
any part of the exterior of the Premises.
4. Tenant shall not use the water fountains, water and wash closets
and other plumbing fixtures for any purpose other than those for which they
were constructed, and Tenant shall not place any debris, rubbish, rag or other
substance therein (including, without limitation, coffee grounds).
5. Tenant shall not construct, maintain, use or operate within the
Premises any electrical device, wiring or apparatus in connection with a loud
speaker system or other sound system without Landlord's prior written
consent. Tenant shall not construct, Landlord's prior written consent. Tenant
shall not construct, maintain, use or operate any such loud speaker or sound
system outside of its Premises or within such Premises so that the same can
be heard from outside the Premises.
6. Tenant shall not bring any bicycle, vehicle, animal, bird or
pet of any kind into the Building, except seeing eye or hearing ear dogs for
handicapped persons
C-1
visiting the Premises.
7. Except as specifically provided to the contrary in the Lease, Tenant
shall not cook or permit any cooking on the Premises, except for microwave
cooking and use of coffee machines by Tenant's employees for their own
consumption. Tenant shall not install any microwave oven or coffee machine in
the Premises without Landlord's prior written approval of such equipment and its
location within the Premises. Tenant shall not cause or permit any unusual or
objectionable odor to be produced upon or permeate from the Premises. Tenant may
construct a kitchen facility in the Demised Premises in accordance with plans
and specifications to be approved by Landlord. Landlord shall have no
responsibility for cleaning or maintaining any such kitchen facility, and Tenant
shall maintain same in accordance with the terms of the Lease and this Exhibit
"C".
8. Tenant shall not make any unseemly or disturbing noise or disturb or
interfere with occupants of the Building.
9. Tenant shall not place on any floor a load exceeding the floor load
per square foot which such floor was designed to carry. Landlord shall have the
right to prescribe the weight, position and manner of installation of safes and
other heavy equipment and fixtures. Landlord shall have the right to repair at
Tenant's expense any damage to the Premises or the Building caused by Tenant's
moving property into or out of the Premises or due to the same being in or upon
the Premises or to require Tenant to do the same. Tenant shall not receive into
the Building or carry in the elevators any furniture, equipment or bulky item
except as approved by Landlord, and any such furniture, equipment and bulky item
shall be delivered only through the designated delivery entrance of the Building
and the designated freight elevator. Tenant shall remove promptly from any
sidewalk adjacent to the Building any furniture, furnishing, equipment or other
material there delivered or deposited for Tenant.
10. Landlord shall at all times have the right to retain and use keys to
the Premises and to all locks or bolts to or within the Premises. Tenant shall
not place additional locks or bolts of any kind on any of the doors or windows,
and shall not make any change in any existing lock or locking mechanism therein,
without Landlord's prior written approval. Tenant shall keep doors leading to a
corridor or main hall closed during Business Hours except as such doors may be
used for ingress or egress. Tenant shall, upon the termination of its tenancy,
restore to Landlord all keys of the Premises, stores, offices, storage and
toilet rooms either furnished to, or otherwise procured by, Tenant, and in the
event of the loss of any keys so furnished, Tenant shall pay the replacement
cost thereof. Tenant's key system shall be consistent with that for the rest of
the Building.
11. Tenant shall not install or operate in the Premises any electrically
operated equipment or machinery that operates on greater than 110 volt power
without
C-2
obtaining the prior written consent of Landlord. Landlord may condition such
consent upon Tenant's payment of additional rent in compensation for the excess
consumption of electricity or other utilities and for the cost of any
additional wiring or apparatus that may be occasioned by the operation of such
equipment or machinery. Tenant shall not install any equipment of any type or
nature that will or may necessitate any changes, replacements or additions to,
or changes in the use of, the water system, heating system, plumbing system,
air-conditioning system or electrical system of the Premises or the Building,
without obtaining Landlord's prior written consent, which consent may be granted
or withheld in Landlord's sole and absolute discretion. If any machine or
equipment of Tenant causes noise or vibration that may be transmitted to such a
degree as to be objectionable to Landlord or any tenant in the Building, then
Landlord shall have the right to install at Tenant's expense vibration
eliminators or other devices sufficient to reduce such noise and vibration to a
level satisfactory to Landlord or to require Tenant to do the same.
12. Landlord reserves the right to exclude from the Building at all times
any person who does not properly identify himself to the Building management or
watchman on duty. Landlord may require all persons admitted to or leaving the
Building to register.
13. Tenant shall not permit or encourage any loitering in or about the
Premises and shall not use or permit the use of the Premises for lodging or
sleeping.
14. Tenant, before closing and leaving the Premises at any time, shall see
that all windows are closed and all lights and equipment are turned off,
including, without limitation, coffee machines.
15. Tenant shall not request Landlord's employees to perform an work or do
anything outside of such employees' regular duties without Landlord's prior
written consent. Tenant's special requirements will be amended to only upon
application to Landlord, and any such special requirements shall be billed to
Tenant in accordance with the schedule of charges maintained by Landlord from
time to time or as is agreed upon in writing in advance by Landlord and Tenant.
Tenant shall not employ any of Landlord's employees for any purpose whatsoever
without Landlord's prior written consent.
16. Canvassing, soliciting and peddling in the Building are prohibited and
Tenant shall cooperate to prevent the same.
17. There shall not be used in any space, or in the public halls of the
Building, either by any tenant or by jobbers or others in the delivery or
receipt of merchandise, any hand trucks, except those equipped with rubber tires
and side guards. Tenant shall be responsible for any loss or damage resulting
from any deliveries made by or for Tenant.
C-3
18. Drapes (whether installed by Landlord or Tenant) which are
visible, from the exterior of the Building, shall be cleaned by Tenant at least
once a year, without notice from Landlord, at Tenant's own expense.
19. Tenant shall not install or permit the installation of any wiring
for any purpose on the exterior of the Premises.
20. Tenant acknowledges that it is Landlord's intention that the
Building be operated in a manner which is consistent with the highest standards
of cleanliness, decency and morals in the community which it serves. Toward that
end, Tenant shall not sell, distribute, display or offer for sale any item
which, in Landlord's judgment, is inconsistent with the quality of operation of
the Building or may tend to impose or-detract from the moral character or image
of the Building. Tenant shall not use the Premises for any immoral or illegal
purpose.
21. Unless otherwise expressly provided in the Lease, Tenant shall
not use, occupy or permit any portion of the Premises to be used or occupied for
the storage, manufacture, or sale of liquor.
22. Tenant shall purchase or contract for waxing, rug shampooing,
Venetian blind washing, interior glass washing, furniture polishing, janitorial
work, removal of any garbage from any dining or eating facility or for towel
service in the Premises, only from contractors, companies or persons approved by
Landlord.
23. Tenant shall not remove, alter or replace the ceiling
light diffusers in any portion the Premises without the prior written consent of
Landlord.
24. Tenant shah not purchase spring water, ice, coffee, soft drinks,
towels, or other merchandise or services from any company or person whose
repeated violation of Building regulations has caused, in Landlord's opinion, a
hazard or nuisance to the Building and/or its occupants.
25. Tenant shall not place or permit the placement of any vending or
dispensing machines of any kind in or about the Premises without Landlord's
prior written consent. Landlord hereby consents to the placement of five (5)
vending machines in the area designated as the lunchroom of the Premises to be
used by Tenant's employees.
26. Landlord may, upon request of Tenant, waive Tenant's compliance
with any of the rules, provided that (a) no waiver shall be effective unless
signed by Landlord, (b) no waiver shall relieve Tenant from the obligation to
comply with such rule in the future unless otherwise agreed in writing by
Landlord, (c) no waiver granted to any tenant shall relieve any other tenant
from the obligation of complying with these rules and
C-4
regulations, and (d) no waiver shall relieve Tenant from any liability for any
loss or damage resulting from Tenant's failure to comply with any rule.
27. In any instance under these rules and regulations where Tenant is
required to obtain Landlord's consent or approval, said consent or approval
shall not be unreasonably withheld, conditioned or delayed.
28. In the event of any inconsistencies between these rules and
regulations and the terms and conditions of the Lease, the terms and conditions
of the Lease shall govern and control.
C-5
EXHIBIT "D"
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CLEANING SPECIFICATIONS
JANITORIAL SERVICES - MONDAY THROUGH FRIDAY
DAY HOURS - DAILY
Lavatories - Replenish paper stock and keep neat, sanitary, clean and orderly.
Water Coolers - Damp wipe with disinfectant and water.
General Office Area - Damp mop spots and spills as required.
Walls and Columns - Spot clean daily as required.
Torpedo Cans - Change liners twice a week and empty cans daily.
NIGHTLY JANITORIAL CLEANING
Clean sink and countertops in pantries.
Damp mop tile floors.
Empty waste paper baskets.
Clean laminated countertops in utility room.
Spot clean walls as required.
Clean water fountains.
Vacuum rugs and spot clean as required.
Wash and clean lavatories.
WEEKLY
Low dust all horizontal surfaces.
MONTHLY
Clean and buff vinyl tile floors.
High dust all horizontal surfaces.
D-1
QUARTERLY
Clean windows in Premises inside and out.
ANNUAL
Shampoo all carpets in Premises and common areas.
D-2