AMENDMENT TO SUBLEASE
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THIS AMENDMENT TO SUBLEASE (this "Amendment") is made as of Sept. 23,
2003 by and between 17th LUDLOW PROPERTY, L.L.C., a Delaware limited liability
company (the "Landlord") having an office at 000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx,
Xxx Xxxxxxx, Xxxxxxxxxx 00000 and eResearchTechnology, Inc., a Delaware
Corporation (the "Tenant") having an office at 00 Xxxxx 00xx Xxxxxx,
Xxxxxxxxxxxx, XX 00000.
Background
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A. Reference is made to:
(a) that certain Lease Agreement dated June 13, 1973 (the
"Prime Lease") between Xxxx X. Xxxxxxxx, Xxxxxx X. Xxxxxxx, Xx., Xxxxxx X. Xxxxx
and Xxxx X. Xxxxx as Trustees for Middle City Trust (the "Prime Landlord"), as
landlord, and Raytheon Engineers and Constructors, Inc. ("Raytheon"), as tenant,
for certain premises in the office building located at 00 Xxxxx 00xx Xxxxxx,
Xxxxxxxxxxxx, Xxxxxxxxxxxx and commonly known as United Plaza (the "Building"),
as amended;
(b) that certain Sublease Agreement dated as of June 24, 1998
(the "Original Sublease") by and between Raytheon, as sublandlord, and Premier
Research Worldwide, Ltd. ("Premier"), as subtenant, for a portion of Raytheon's
leased premises consisting of the eighth and ninth floors of the Building;
(c) that certain Asset Assignment and Transfer Agreement dated
as of January 1, 2000 (the "Assignment") between Premier, as assignor, and
eResearch Technology, Inc., whose name was later changed to eRT Operating
Company ("eRT"), as assignee, assigning, inter alia, Tenant's interest in the
Original Sublease to eRT;
(d) that certain letter agreement regarding recognition and
attornment dated as of October 29, 2001 (the "Letter Agreement") between eRT and
Landlord (successor in interest, as current owner of the Building, to the
original Prime Landlord), pursuant to which, among other things, the Original
Sublease became a direct lease between Landlord and eRT and was amended whereby
eRT surrendered to Landlord the ninth floor of the Building and leased directly
from Landlord the eighth floor of the Building (the eighth floor of the Building
being herein referred to as the "Subleased Premises"), under the terms and
conditions set forth in the Original Sublease and incorporated provisions of the
Prime Lease, as amended by the Letter Agreement (the Original Sublease, the
incorporated provisions of the Prime Lease and the Letter Agreement being herein
referred to collectively as the "Amended Sublease");
(e) those corporate certain name changes whereby Premier's
name was changed to PRWW Limited and then changed again (after the name of the
original eResearch Technology, Inc. was changed to eRT Operating Company), to
eResearch Technology, Inc., and
(f) that certain merger on December 31, 2001 whereby eResearch
Technology acquired all the stock of eRT, and thereby became eRT's successor in
interest in the Amended Sublease, and became the current Tenant.
B. Landlord and Tenant desire to extend the term of the Amended
Sublease on the terms and conditions set forth in this Amendment.
Agreement
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NOW THEREFORE, in consideration of the mutual covenants herein
contained and intending to be legally bound, Landlord and Tenant agree as
follows:
1. Definitions. Capitalized terms appearing in this Amendment and not
otherwise defined shall have the respective meanings given to those terms in the
Amended Sublease. Effective upon execution and delivery of this Amendment, all
references to the "Sublease" shall mean the Amended Sublease as amended by this
Amendment.
2. Amendment of Term. The term of the Amended Sublease is hereby
extended by three additional years (the "Extension Period"). Reflecting that
extension, Article B of the Original Sublease, captioned "Definitions and Basic
Terms" is hereby amended at definition 0.8, "Term" to change the stated
expiration date from 5:00 PM on August 30, 2005 to 5:00 PM on August 30, 2008.
All references in the Amended Sublease to the "expiration date", "expiration of
the Term" or otherwise to the scheduled end of the Term shall be deemed to mean
August 30, 2008.
3. Amendment of Square Footage. As of September 1, 2005, (a) the square
footage of the Subleased Premises as set forth in the Letter Agreement is hereby
amended from 29,078 rentable square feet to 30,632 rentable square feet, (b) the
square footage of the Building as set forth in the Original Sublease is hereby
amended from 587,637 to 606,653, and (c) the Subtenant's Proportionate Share
with respect to the Subleased Premises is hereby amended from 4.95% to 5.05%.
4. Base Rent Schedule. The Base Rent Schedule for the Extension Period
shall be as follows:
Extension
Lease Monthly Annualized Base Rent
Year Base Rent Base Rent Rate (PSF)
---- --------- ----------- ----------
1 $53,606.00 $643,272.00 $21.00
2 $56,158.67 $673,904.04 $22.00
3 $58,711.33 $704,535.96 $23.00
5. Amendment of Base Year. As of September 1, 2005, Article B of the
Original Sublease, captioned "Definitions and Basic Terms" is hereby amended at
definitions 0.13 and 0.14 to change the Base Year for Expense Stop and Tax Stop
from 1998 to 2005.
6. Renovation Allowance. At the beginning of the Extension Period,
Landlord shall make available to Tenant a renovation allowance of One Hundred
Eighty Three Thousand Seven Hundred Ninety Two Dollars ($183,792), being Six
Dollars ($6) per rentable square foot of the Subleased Premises (the "Renovation
Allowance"). Tenant may use the Renovation Allowance to repaint, carpet or
otherwise renovate the Subleased Premises, subject to Landlord's approval of the
plans and specifications for such renovations and to Tenant's compliance with
all provisions of the Sublease relevant to its renovation work. If used in
renovation of the Subleased Premises, the Renovation Allowance shall be paid to
Tenant or directly to Tenant's contractors within sixty (60) days after Landlord
receives evidence of paid invoices representing the work in the case of payment
made to Tenant, or detailed invoices and partial or final lien waivers, as
applicable, in the case of payments made directly to contractors. If the entire
Renovation Allowance is not utilized in renovation of the Subleased Premises,
then during the first six months of the Extension Period Tenant shall have the
right to credit any unused Renovation Allowance against the Basic Rent due
during the first six months of the Extension Period. Any portion of the
Renovation Allowance not used for renovations or applied against the Basic Rent
by the end of the first six months of the Extension Period shall lapse and
Tenant shall have no further rights thereto.
7. Confession of Judgment. The confession of judgment provisions set
forth in the Original Sublease are hereby ratified and restated as follows:
THE FOLLOWING PARAGRAPH SETS FORTH A WARRANT OR AUTHORITY FOR AN
ATTORNEY (OR A CLERK OF COURT OR A PROTHONOTARY) TO CONFESS JUDGMENT
AGAINST TENANT. SINCE THIS PARAGRAPH REQUIRES TENANT TO WAIVE IMPORTANT
DUE PROCESS RIGHTS AND OTHER CONSTITUTIONAL RIGHTS, TENANT AND LANDLORD
AGREE THAT IT IS APPROPRIATE FOR TENANT TO PROVIDE A SPECIAL
ACKNOWLEDGMENT THAT TENANT WAIVES THOSE RIGHTS KNOWINGLY AND
VOLUNTARILY. IN MAKING THIS SPECIAL ACKNOWLEDGMENT, TENANT EXPRESSLY,
KNOWINGLY AND VOLUNTARILY MAKES THE FOLLOWING REPRESENTATIONS,
ACKNOWLEDGMENTS, AND ASSURANCES (IN WHICH "YOU" SHALL MEAN TENANT OR,
IF APPROPRIATE TENANT'S HEIRS, SUCCESSORS AND/OR ASSIGNS):
(I) YOU HAVE DISCUSSED WITH YOUR OWN LEGAL COUNSEL THE
CONSEQUENCES OF GRANTING THE WARRANTS OR POWERS OF ATTORNEY IN THE
SUBLEASE (OR YOU HAVE WILLFULLY AND KNOWINGLY ELECTED NOT TO HAVE SUCH
A DISCUSSION WITH AN ATTORNEY WHO REPRESENTS YOU).
(II) YOU UNDERSTAND THE CONSEQUENCES OF GRANTING SUCH WARRANTS
OR POWERS OF ATTORNEY, INCLUDING BUT NOT LIMITED TO THE FACT THAT YOU
ARE THEREBY WAIVING IMPORTANT RIGHTS THAT YOU WOULD OTHERWISE HAVE
UNDER THE CONSTITUTIONS OF THE UNITED STATES OF AMERICA AND OF THE
COMMONWEALTH OF PENNSYLVANIA.
(III) YOU UNDERSTAND THAT AMONG THE RIGHTS YOU WILL WAIVE BY
GRANTING SUCH WARRANTS OR POWERS OF ATTORNEY ARE: (A) THE RIGHT TO
RECEIVE PRIOR NOTICE OF PROCEEDINGS TO ENFORCE SUCH A JUDGMENT BY
HAVING A SHERIFF OR MARSHAL EVICT YOU FROM THE LEASEHOLD SPACE, AND (B)
THE RIGHT TO HAVE A HEARING CONDUCTED BEFORE YOU ARE DEPRIVED OF YOUR
PROPERTY AS A RESULT OF SUCH ENFORCEMENT PROCEEDINGS.
(IV) NO ONE HAS EXERCISED ANY FORCE OR MADE ANY THREATS OR
TAKEN ANY ACTS THAT HAVE DEPRIVED YOU OF YOUR FREE WILL IN DECIDING
WHETHER TO GRANT SUCH A WARRANT OF ATTORNEY.
(V) YOU UNDERSTAND THAT LANDLORD AND ITS ATTORNEYS AND AGENTS
ARE RELYING UPON YOUR ASSURANCE THAT THESE ACKNOWLEDGMENTS AND
REPRESENTATIONS ARE TRUE.
CONFESSION OF JUDGMENT
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WARRANT AND POWER OF ATTORNEY TO CONFESS JUDGMENT IN EJECTMENT. WHEN
THIS SUBLEASE AND THE TERM THEREOF OR TENANT'S RIGHT TO POSSESSION OF
THE SUBLEASED PREMISES SHALL HAVE BEEN TERMINATED ON ACCOUNT OF ANY
EVENT OF DEFAULT BY TENANT HEREUNDER, AND ALSO WHEN THE TERM HEREBY
CREATED SHALL HAVE EXPIRED, IT SHALL BE LAWFUL FOR ANY ATTORNEY TO
APPEAR BEFORE THE PROTHONOTARY, OR CLERK OF COURT, OR ANY OTHER
APPROPRIATE REPRESENTATIVE OF THE JUDICIAL SYSTEM IN WHICH ANY ACTION
AGAINST TENANT MAY BE BROUGHT BY LANDLORD AGAINST TENANT, AND TO APPEAR
AS ATTORNEY FOR TENANT, AS WELL AS FOR ALL PERSONS CLAIMING BY, THROUGH
OR UNDER TENANT, AND THEREIN CONFESS JUDGMENT IN ANY SUCH ACTION
AGAINST TENANT AND ALL PERSONS CLAIMING BY, THROUGH OR UNDER TENANT FOR
THE RECOVERY BY LANDLORD OF POSSESSION OF THE SUBLEASED PREMISES. THIS
SUBLEASE SHALL BE HIS SUFFICIENT WARRANT, WHEREUPON, IF LANDLORD SO
DESIRES, A WRIT OF POSSESSION MAY ISSUE FORTHWITH, WITHOUT ANY PRIOR
WRIT OR PROCEEDINGS WHATSOEVER. IF FOR ANY REASON AFTER SUCH ACTION
SHALL HAVE BEEN COMMENCED THE SAME SHALL BE TERMINATED AND THE
POSSESSION OF THE SUBLEASED PREMISES HEREBY DEMISED REMAIN IN OR BE
RESTORED TO TENANT, LANDLORD SHALL HAVE THE RIGHT FOR THE SAME DEFAULT
AND UPON ANY SUBSEQUENT DEFAULTS, OR UPON THE TERMINATION OF THIS
SUBLEASE, TO BRING ONE OR MORE FURTHER ACTIONS AS HEREINBEFORE SET
FORTH TO RECOVER THE POSSESSION OF SAID SUBLEASED PREMISES AND CONFESS
JUDGMENT FOR THE RECOVERY OF POSSESSION OF THE SUBLEASED PREMISES AS
HEREINBEFORE PROVIDED.
RELEASE. TENANT HEREBY UNCONDITIONALLY AND FOREVER RELEASES AND WAIVES
(I) ALL RIGHTS THAT TENANT WOULD OTHERWISE HAVE TO OBJECT TO, INTERFERE
WITH, ATTACK, SEEK TO STRIKE OR OPEN, OR SEEK TO STAY THE AFORESAID
ENTRY OF JUDGMENT OR JUDGMENTS AND/OR THE AFORESAID ISSUANCE AND
CONSUMMATION OF EXECUTION OR EXECUTIONS THEREON, (II) ANY AND ALL
ERRORS HERETOFORE OR HEREAFTER COMMITTED BY LANDLORD IN CONNECTION WITH
THIS SUBLEASE AND/OR IN CONNECTION WITH LANDLORD'S ENFORCEMENT OF ITS
RIGHTS UNDER THIS PARAGRAPH, (III) INQUISITION AND CONDEMNATION OF ANY
PROPERTY SEIZED OR LEVIED UPON BY VIRTUE OF SUCH EXECUTION, AND (IV)
ANY EXEMPTIONS TO WHICH TENANT WOULD OTHERWISE BE ENTITLED UNDER ANY
STATUTE, LAW, ORDINANCE, REGULATION OR RULE OF LAW.
AFFIDAVIT OF DEFAULT. IN ANY ACTION BROUGHT PURSUANT TO THE FOREGOING
WARRANTS AND POWERS OF ATTORNEY TO CONFESS JUDGMENT HEREIN, LANDLORD
SHALL CAUSE TO BE FILED IN SUCH ACTION AN AFFIDAVIT MADE BY IT OR
SOMEONE ACTING FOR IT, SETTING FORTH THE FACTS NECESSARY TO AUTHORIZE
THE ENTRY OF JUDGMENT, OF WHICH FACTS SUCH AFFIDAVIT SHALL BE PRIMA
FACIE EVIDENCE, AND IF A TRUE COPY OF THIS SUBLEASE (AND OF THE TRUTH
OF THE COPY SUCH AFFIDAVIT SHALL BE SUFFICIENT EVIDENCE) SHALL BE FILED
IN SUCH SUIT, ACTION OR ACTIONS, IT SHALL NOT BE NECESSARY TO FILE THE
ORIGINAL AS A WARRANT OF ATTORNEY, ANY RULE OF COURT, CUSTOM OR
PRACTICE TO THE CONTRARY NOTWITHSTANDING.
8. Confirmation of Security Deposit Requirements. Without limiting the
general ratification set forth in Paragraph 10(a) below, Landlord and Tenant
hereby confirm that the Security requirements of Section 4 of the Original
Sublease shall remain in full force and effect throughout the Extension Period,
that the Security is held by Landlord in the form of the Letter of Credit, and
that notwithstanding the periodic reduction of the amount of the Security as
provided in Section 4.4, the minimum Security (and therefore the minimum amount
of the Letter of Credit Security Instrument) shall be not less than $63,922.33
throughout the Extension Period.
9. Condition to this Amendment. Tenant acknowledges that Xxxxx Xxxxxx
LLP, another tenant of the Building, presently has the right under its lease to
expand its demised premises into the eighth floor of the Building under certain
terms and conditions after the expiration of the current term of the Original
Sublease. This Amendment, and the obligations and liabilities of the parties
hereunder, are subject to Landlord's receipt of a written waiver duly signed by
authorized signatories of Xxxxx Xxxxxx LLP, in form satisfactory to Landlord,
under which Xxxxx Xxxxxx LLP waives any rights under its lease to expand its
demised premises into the eighth floor of the Building at any time prior to the
last day of the Extension Period. Upon receipt of such written waiver Landlord
shall notify Tenant. If Landlord does not obtain such written waiver by December
31, 2003, then either Landlord or Tenant has the right to terminate this
Amendment by written notice given to the other at any time after December 31,
2003 and prior to the date Landlord obtains such written waiver.
10. General Provisions.
(a) Ratification. The Amended Sublease remains in full force
and effect, unmodified except as expressly amended in this Amendment. Without
limiting the preceding sentence, the parties again confirm that notwithstanding
the termination of the Prime Lease as a result of the bankruptcy of the tenant
thereunder, or the expiration of the stated term of the Prime Lease, for
purposes of the Amended Sublease the Prime Lease shall be deemed not to have
terminated or expired, but shall remain in effect to the purpose of determining
the provisions incorporated into the Amended Sublease. If any covenant or
condition of this Amendment conflicts with the Amended Sublease, this Amendment
shall govern to the extent of the conflict.
(b) Entire Agreement; Amendments. The Amended Sublease and
this Amendment together constitute the entire agreement of the parties with
respect to the Subleased Premises and supersede all prior verbal and written
communications. The Sublease may not be further modified or amended unless the
modification is in writing and signed by the party against whom enforcement is
sought.
(c) Captions. Paragraph headings are used herein solely for
reference purposes and are not to be construed as part of this Amendment.
(d) Counterparts. This Amendment may be executed in
counterpart copies, each of which shall constitute an original but all of which
together shall constitute one and the same instrument.
(e) No Broker. Each of Landlord and Tenant represent and
warrant to the other that no broker has been involved in the transaction
memorialized by this Amendment except for Xxxx Realty Group, Inc., whose fees
shall be paid by Landlord pursuant to a separate written instrument between
Landlord and Xxxx Realty Group, Inc. Each party shall indemnify the other
against any breach of this representation and warranty by the indemnifying
party.
IN WITNESS WHEREOF, Landlord and Tenant have executed and delivered
this Amendment as a sealed instrument as of the day and year first above
written.
17th LUDLOW PROPERTY, L.L.C.,
a Delaware limited liability company
By: OAKTREE CAPITAL MANAGEMENT, LLC,
its Manager
WITNESS OR ATTEST
By: W. Xxxxxxx Xxxxxx
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------------------------------------- Name: W. Xxxxxxx Xxxxxx
Title:
By: Xxxxx Xxxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxxx
Title:
WITNESS OR ATTEST eRESEARCH TECHNOLOGY, Inc.
Xxxx Xxxxx Xxxxxxxxxxxx By: Xxxxx Xxxxxxx
------------------------------------- --------------------------------
Name: Xxxxx Xxxxxxx
Title: Sr. V.P. and CFO
