Exhibit 10.9
000 XXXXX XXXXX XXXXXX
XXXXXXXXXXXX, XXXXXXXXXXXX
AMENDMENT TO LEASE
AMENDMENT TO LEASE made as of this _______ day of December, 1996, by
and between BROAD AND NOBLE ASSOCIATES, INC. having its principal office at 000
Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000 ("Landlord") and SUNGARD
SERVICES COMPANY, having its principal office at 0000 Xxxxxxxx Xxxx, Xxxxx,
Xxxxxxxxxxxx 00000 ("Tenant").
W I T N E S S E T H
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WHEREAS, reference is made to the Agreement of Lease, dated September
1, 1986 for a certain space on the Mezzanine (the "Mezzanine"), and the
Agreement of Lease, dated April 12, 1984 for certain space on the sixth (6th)
floor (the "Sixth Floor"), and the Amendment to Lease, dated November 18, 1992,
for certain other space on the seventh (7th) floor (the "Seventh Floor Second
Expansion Space", and "All Remaining Seventh Floor Space"), and the Amendment to
Lease dated November 22, 1995 for certain space on the eighth (8th) floor (the
"Suite 816"), with the respective Riders attached thereto (hereinafter
collectively referred to as the "Leases"), demising certain in the building
known as 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx (the "Building");
and
WHEREAS, the extended term of the Leases expires on December 31, 1999;
and
WHEREAS, Tenant finds the present space inadequate for its needs and
Landlord is willing to accommodate expansion requirements of Tenant on the
eighth floor of the Building; and
WHEREAS, Landlord and Tenant desire to extend the Leases through
December 31, 2004 on the terms and conditions contained herein.
NOW, THEREFORE, in consideration of the mutual agreements herein
contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound
hereby, the parties hereto agree as follows:
1. Expansion Spaces.
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(a) Landlord hereby leases to Tenant and Tenant hereby hires from
Landlord 50,000 square feet of space located on the eighth floor of 000 Xxxxx
Xxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx (the "First Expansion Space"), as shown
on the Eighth Floor plan attached hereto and made a part hereof as Exhibit "A",
for a term of eight (8) years commencing January 1, 1997 and ending December 31,
2004; and (b) Landlord hereby leases to Tenant and Tenant hereby hires from
Landlord the remaining 45,786 square feet of space located on the eighth floor
of 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx (the "Second Expansion
Space") as shown on the Eighth Floor plan attached hereto and made a part hereof
as Exhibit "A", for a term of seven (7) years commencing January 1, 1998 and
ending December 31, 2004, all on the same terms and conditions as are in
existence for the Sixth Floor, Mezzanine, Seventh Floor, and Suite 816 Leases
except as modified by and as specifically set forth in this Amendment. Landlord
hereby covenants to deliver to Tenant possession of the First Expansion Space
and the Second Expansion Space, free and clear of any tenancies, commencing
January 1, 1997 and January 1, 1998, respectively. Tenant will be responsible
for obtaining permits and approvals for all construction which will be done in
the Expansion Space to conduct Tenant's business thereon.
2. Extension of Term; Basic Rent.
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(a) Extension of Term. The term of the Leases covering the Sixth
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Floor, Mezzanine, Seventh Floor, and Suite 816, shall be extended for an
additional five (5) years (the "Second Extended Term"). The Second Extended
Term for the Leases shall commence on January 1, 2000 and expire on December 31,
2004.
(i) Basic Rent. The basic rent during the balance of the current
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term and Second Extended Term shall be as follows:
A. Mezzanine
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1) For the period commending as of the date hereof and
ending December 31, 1999, Tenant shall pay the same amount as basic rent
for the Mezzanine as Tenant is currently paying in accordance with the
Leases except that there shall be no cost of living increase in such basic
rent during the years 1997, 1998 and 1999.
2) For the period commencing January 1, 2000 and ending
December 31, 2004, Tenant shall pay for the Mezzanine the sum of
$214,744.00 annually, payable in equal monthly installments, in advance, of
$17,895.33 each.
B) Sixth Floor
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1) For the period commencing as of the date hereof and
ending December 31, 1999, Tenant shall pay the same amount as basic rent
for the Sixth Floor as Tenant is currently paying in accordance with the
Leases except that there shall be no cost of living increase in such basic
rent during the years 1997, 1998 and 1999.
2) For the period commencing January 1, 2000 and ending
December 31, 2004, Tenant shall pay for the Sixth Floor the sum of
$626,951.00 annually, payable in equal monthly installments, in advance, of
$52,245.92 each.
C) Seventh Floor
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1) For the period commencing as of the date hereof and
ending December 31, 1999, Tenant shall pay the same amount as basic rent
for the Seventh Floor as Tenant is currently paying in accordance with the
Lease except that there shall be no cost of living increase in such basic
rent during the years 1997, 1998 and 1999.
2) For the period commencing January 1, 2000 and ending
December 31, 2004, Tenant shall pay for the Seventh Floor the Sum of
$631,930.00 annually, payable in equal monthly installments, in advance, of
$52,660.83 each.
D) First Expansion Space; Second Expansion Space.
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1) For the First Expansion Space, for the period
commencing January 1, 1997 and ending December 31, 2004. Tenant shall pay
for the First Expansion Space the sum of $237,500 annually, payable in
equal monthly installments, in advance, of $19,791.67 each.
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2) For the Second Expansion Space, for the period
commencing January 1, 1998 and ending December 31, 2004, Tenant shall pay
for the Second Expansion Space the sum of $217,484 annually, payable in
equal monthly installments, in advance, of $18,123.67 each.
E) Suite 816
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1) For the period commencing as of the date hereof and
ending December 31, 1999, Tenant shall pay the same amount as basic rent
for Suite 816 as Tenant is currently paying in accordance with the Leases
except that there shall be no cost of living increase in such basic rent
during the years 1997, 1998 and 1999. Commencing January 1, 2000 and
ending December 31, 2004, Tenant shall pay the sum of $6,812.00 annually,
payable in monthly installments, in advance, of $567.67 each.
(b) Each monthly payment of basic rent will be made on the first day
of each and every calendar month during the Second Extended Term. Tenant will
pay said rent to the Landlord, at the office of Landlord as indicated above or
to such other part or to such other address as Landlord may designate from time
to time by written notice to Tenant.
3. Repairs and Improvements.
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(a) Landlord, at Landlord's sole cost and expense, shall be
responsible for and shall perform the following repairs, replacements,
construction, work and maintenance at the Building and the Leased Premises all
in accordance with the following terms and conditions (collectively "Repairs and
Improvements").
(i) Within thirty (30) days of the date of this Amendment,
Landlord, at Landlord's sole cost and expense, shall prepare or cause to be
prepared and submitted to Tenant for Tenant's approval, by a reputable asbestos
contractor, approved in writing by Tenant, a comprehensive plan, approved in
writing as to scope of work for the removal of all asbestos in the Building.
Within thirty (30) days of the date such plan for asbestos removal is delivered
to and approved by Tenant, Landlord shall let such work out for bid by
contractors approved by Tenant and/or Tenant's consulting engineer. Tenant shall
have final approval of all final plans, specifications and materials of such
asbestos removal and such removal shall be completed by Landlord, at Landlord's
sole cost and expense, as soon as practicable but in no event later than
December 31, 1997.
(ii) Within ninety (90) days of the date of this Amendment,
Landlord, at Landlord's sole cost and expense, shall prepare or cause to be
prepared and submitted to Tenant for Tenant's written approval, by a reputable
smoke detection company, a comprehensive early warning smoke detection system
program, compliant with NFPA, the National Electric Code and all other federal,
state and local bodies having jurisdiction over the Building with respect to
fire, smoke and safety systems, for all floors currently tenant occupied in the
Building and for the installation of said system as and when floors not
currently occupied are occupied in the future. Such system shall contain fully
programmable panels installed both in the Building and the Leased Premises and
such smoke detection system shall be monitored twenty-four (24) hours a day,
three hundred sixty-five (365) days a year by a professional, reputable offsite
security agency. All spaces in the Building which are not leased or occupied as
of the date hereof (whether or not such space or spaces have previously been
leased, occupied or built out) shall either be fully alarmed in accordance with
the program approved by Tenant or shall be gutted, cleared and maintained in
broom clean condition. Within thirty (30) days such plan is delivered to and
approved in writing by Tenant, Landlord shall let such work out for bid by
contractors approved by Tenant and/or
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Tenant's consulting engineer and Tenant shall have final approval of all final
plans, specifications, materials and scope of such work. All work to be
performed under this Paragraph shall be completed by Landlord, at Landlord's
sole cost and expense, as soon as practicable but in no event later than
December 31, 1997.
(iii) Within thirty (30) days of the date of this Amendment,
Landlord, at Landlord's sole cost and expense, shall prepare or cause to be
prepared and submitted to Tenant for Tenant's written approval, by a reputable
roofing company approved by Tenant, a comprehensive plan to replace the roof of
the Building. The scope of the work, the contractor, materials and phasing of
the work shall be approved by Tenant in writing. The roof, when completed,
shall contain a full ten (10) year warranty as to materials and labor and a
maintenance program shall be put into place by Landlord and approved in writing
by Tenant so that the roof will be maintained free of leaks throughout the term
of the Leases. The roof shall be completely replaced, at Landlord's sole cost
and expense, as soon as practicable but in no event later than December 31,
1997.
(iv) Within thirty (30) days of the date of this Amendment,
Landlord shall prepare or cause to be prepared and submit to Tenant for Tenant's
prior written approval, by a reputable elevator company, a plan for the
replacement of the entire elevator systems in the shaft location of SunGard's
choice not including rooftop machinery or the steel railing system, unless the
railing system or parts thereof require repair or replacement, as determined by
the approved elevator company. For every 100,000 square feet of space in the
Building leased by Landlord after the date hereof, whether or not such leased
space is contiguous, excluding the Eighth Floor, Landlord shall also replace an
additional elevator system until all lobby elevator systems have been replaced
in full. Tenant shall approve in writing, the plans and specifications of the
work, the scope of the work, contractor, phasing of the work and all materials
to be used in replacing the elevator systems as described herein. Tenant, at
Tenant's sole cost, will refurbish the interior cab of each elevator as each
elevator system is replaced. The initial elevator system of SunGard's choice to
be replaced by Landlord pursuant to this Paragraph shall be completed by
Landlord, at Landlord's sole cost and expense, as soon as practicable but in no
event later than December 31, 1997.
(b) Landlord shall prepare and submit for Tenant's approval a plan to
maintain all systems, items repaired and replaced pursuant to the foregoing
Paragraphs. All work to be performed by Landlord or Landlord's contractors
hereunder shall be performed in a good and workmanlike manner, all contracts for
the work shall be approved in writing by Tenant and Tenant and Tenant's agents
and consultants shall have the right to inspect all work as it progresses and to
approve or disapprove same.
4. Financing of Repairs and Improvements.
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(a) Tenant agrees to finance for Landlord an amount up to the sum of
Two Million Four Hundred Thousand Dollars ($2,400,000) for the sole purposes of
paying the actual costs of performing and installing the Repairs and
Improvements to the Premises and Building. Tenants shall lend to Landlord such
costs by paying the contractors, suppliers or consultants designated by
Landlord, from time to time during the progress of the Repairs and Improvements
(but not more than once per month) within thirty (30) days after receipt from
Landlord of:
(i) supporting documentation thereof approved by Tenant,
accompanied by a certification of the architect, contractor or other consultant
supervising the work, stating that the portion of the work for which Landlord is
applying for payment has been completed substantially in accordance with the
plans and specifications approved by Tenant;
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(ii) itemized bills for labor and materials constituting
portions of the Repairs and Improvements submitted by the contractors, suppliers
or consultants of the services or materials rendered, such bills shall have been
marked "paid" by the contractor, supplier or consultant;
(iii) waivers of liens evidencing the payment of any prior work
performed and materials supplied for which Landlord previously applied for
payment, executed and acknowledged by the contractors, suppliers and consultants
which are entitled by statute to file mechanics' liens; and
(iv) with respect to the final request for payment, "as-built"
plans and specifications for such Repairs and Improvements.
(b) Interest shall accrue on the outstanding principal balance
advanced by Tenant to Landlord hereunder at the "prime rate" or "prime lending
rate" as those terms are hereinafter defined. Interest shall be calculated on
the basis of a three hundred sixty (360) day year and shall be payable monthly
in arrears on the first day of each month, based on the actual number of days
elapsed at the per annum rate specified above. The term "prime rate" or "prime
lending rate" shall be the rate of interest announced in The Wall Street Journal
on December 31 of each year. Changes in the interest rate, hereunder, shall be
effective on January 1, of each year amounts advanced by Tenant to Landlord are
outstanding.
(c) Landlord shall only be permitted to draw advance from Tenant from
January 1, 1997 through December 31, 1997 up to a maximum amount of Two Million
Four Hundred Thousand Dollars ($2,400,000).
(d) Advances made by Tenant to Landlord shall be repaid monthly
commencing January 1, 1998 and thereafter through December 31, 2004 based upon a
seven year amortization schedule.
(e) Commencing January 1, 1998 and monthly thereafter through December
31, 2004, Tenant shall receive and be entitled to set-off against basic rent,
the monthly amount of principal and interest due from Landlord hereunder until
said amount is paid in full.
5. Right of First Refusal to Purchase Building. If, during the term of
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this Lease, Landlord shall receive a bona fide offer acceptable to it for the
purchase of the Building, Tenant shall have a continuing right to purchase the
same upon the terms and conditions as are contained in the said offer, such
right to be exercised in the manner provided for herein. Landlord shall notify
Tenant in writing of the receipt of such offer and terms thereof, the notice to
be accompanied by an agreement of sale embodying the terms of the offer, and
within ten (10) business days after the receipt of such notice (such time to be
of the essence) Tenant shall, if it desires to purchase the Building, deliver to
Landlord Tenant's written agreement legally binding Tenant to make such purchase
on such terms, and shall further deliver to Landlord the payment, if any, on
account of the sale in the amount specified in such offer. Tenant's failure to
make and deliver such agreement and payment within such ten (10) business days
shall result in the termination of this Right of First Refusal and Landlord may
consummate the transaction in accordance with the terms of the bona fide offer
submitted to Tenant. However, if settlement under the bona fide offer is not
completed within three (3) months from the date such offer is submitted to
Tenant, Landlord shall be obligated to follow the procedures and provisions of
this Paragraph 5 with respect to any subsequent bona fide offers to purchase the
Building acceptable to Landlord.
6. Renewal Options. Provided Tenant is not in default hereunder, Tenant,
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upon not less than twelve (12) months prior written notice in each instance,
shall have the option to renew the Leases for
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three (3) additional terms (the "Additional Terms") of five (5) years each. The
terms and conditions of each Additional Term shall remain unchanged except for
the basic rent which shall be determined as follows:
(i) Commencing January 1, 2005 and commencing on the first day
of each Additional Term thereafter, Tenant shall pay adjusted basic rent
("Adjusted Basic Rent") for the Leased Premises in the amounts determined in
accordance with the following provisions.
1) Within three hundred (300) and two hundred fifty-five
(255) days prior to January 1, 2005 (or the completion of ten (10) and fifteen
(15) years after the commencement of the Second Extended Term), Landlord and
Tenant shall agree on a new monthly basic rent for the Leased Premises, using,
as a guide, rental values for comparable buildings within a radius of one mile
of 000 Xxxxx Xxxxx Xxxxxx, which basic rent, if agreement is reached, shall be
the new basic rent for the period following December 31, 2004, or the subheading
of five (5) years of the Additional Term. If the parties are unable to agree on
a basic rent within three hundred (300) and two hundred fifty-five (255) days
prior to the beginning of the basic rent for the period for which rent is then
being determined, the parties agree to submit this issue of basic rent to
appraisal by Landlord's and Tenant's appraisers holding MAI designations, as
follows, Landlord and Tenant shall each appoint an MAI appraiser to appraise the
basic rent of the Leased Premises for the relevant period. The appraisers shall
consult with each other and attempt to produce an agreed, joint written
appraisal. If the appraisers determine that they are unable to agree on the
basic rent of the Leased Premises, they shall render separate written appraisals
and then jointly select a third appraiser who holds an MAI designation who shall
be charged with rendering a final, binding written appraisal of the basic rent;
provided, however, that the value established by the third appraiser shall not
be less than the lower of the two prior appraisals or higher than the higher of
the prior two appraisals. In the case of appraisals rendered for any Additional
Term, the appraisers shall complete all appraisals no later than one hundred
eighty-five (185) days before the expiration of the then current term. The
appraisers shall be guided by the basic rent of "comparable buildings",
"Comparable buildings" is intended to mean those buildings similar in quality,
character, age and nature to the present building containing the Leased Premises
located within one mile radius of the Building, containing approximately the
same space as the Leased Premises with typical truck access and loading docks,
high quality but in all respects standard features such as HVAC, electric,
plumbing, telephone and office area finishes. The appraisers shall not consider
the value of Tenant's over-improvements and specialized business build-out and
finishes in their appraisals. The joint, agreed decision of the original
appraisers or, if there is no agreed appraisal, the decision of the third
appraiser, shall be final and binding upon the parties. In no event shall the
basic rent for January 1, 2005, through the end of the fifth (5th) year of any
five (5) year Additional Term be lower than the highest basic rent for any
period. Should the appraisal process for any rental period after January 1,
2005, of the term result in a decision which comes after the beginning of a new
rental period, an increase, if any, in the monthly basic rent shall be
retroactive to the month in which the new period began. During the pendency of
appraisal, Tenant shall continue to make monthly payments and shall make up any
difference resulting from an increase in basic rent within ten (10) days of
Landlord's written request. Should the appraisal decision regarding any
Additional Term basic rent be delayed because of Landlord fault to a date less
than one hundred eighty-five (185) days before the expiration of the then
current term or Additional Term, Tenant shall have the right to exercise its
renewal options as described in this Paragraph on the then current terms and
conditions, including, without limitation, the then current basic rent and the
further right to rescind such election by written notice to Landlord within five
(5) business days of receipt of the final appraisal decision.
7. Operating Expenses. With respect to the Eighth Floor only, Paragraphs
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3(b) and 3(c) of the Leases are hereby amended to provide that the Base Real
Estate Taxes and Base Operating Charges
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for (a) the First Expansion Space shall each be based on the calendar year 1997;
and (b) the Second Expansion Space shall each be based on the calendar year
1998. The percentage of increases allocable to the First Expansion Space will
be 3.87% and the percentage of increase is allocable to the Second Expansion
Space will be 3.54%. The method of computation will be the same as stated in
Paragraphs 3(b) and 3(c) of the Leases.
8. Captions. The captions contained herein are not a part of this
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Amendment and are included solely for the convenience of the parties hereto.
9. No Other Charges. Except as herein expressly modified,all of the
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terms, covenants and conditions of the Leases shall remain in full force and
effect.
IN WITNESS WHEREOF, the parties hereto have duly executed this Amendment to
Lease as of the day and year first above written.
BROAD AND NOBLE ASSOCIATES, INC. a
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By: /s/ Xxxxx Xxxxxxxx
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Title: Pres.
Attest: /s/ Xxxxxxx Docket
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Title: Comptroller
[CORPORATE SEAL]
SUNGARD SERVICES COMPANY
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Title: SVP
Attest: /s/ Xxxxx Xxxxxxx
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Title: VP-Controller
[CORPORATE SEAL]
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