EXHIBIT 10.11
THIRD LEASE MODIFICATION AGREEMENT
THIS THIRD LEASE MODIFICATION AGREEMENT, made this 30th day of May, 2002 by
and between 5851 WEST SIDE ASSOCIATES, L.L.C. (as successor to Xxxxx Mountain
Development Corp.), a New Jersey limited liability company, having an office at
000 Xxxxx Xxxxx, Xxxxxxxx, Xxx Xxxxxx 00000 (hereinafter referred to as
"Landlord") and SUNGARD RECOVERY SERVICES LP, a wholly owned subsidiary of
SunGard Data Systems Inc., a Pennsylvania limited partnership, having an office
at 0000 Xxxxxxxx Xxxx, Xxxxx, XX 00000 (hereinafter referred to as "Tenant").
WITNESSETH:
WHEREAS, by Agreement of Lease dated November 16, 1987, as amended by
Amendment of Lease dated December 15, 1987, and Second Amendment of Lease dated
April 11, 1988 (collectively the "Lease") Landlord leased to Tenant and Tenant
hired from Landlord 163,537 rentable square feet of Floor Space located at 0000
Xxxx Xxxx Xxxxxx, Xxxxx Xxxxxx, Xxx Xxxxxx (hereinafter the "Demised Premises");
and
WHEREAS, Landlord and Tenant wish to modify the Lease to reflect an
extension of the Term of the Lease for an additional five (5) years, and to
amend the Lease accordingly;
NOW, THEREFORE, for and in consideration of the Lease, the mutual covenants
herein contained and the consideration set forth herein, the parties agree as
follows:
1. Extension of Term: The Term is hereby extended for a period of five (5)
years (said period is hereinafter referred to as the "Extended Period")
commencing February 1, 2003 (the "Extended Period Commencement Date") and
expiring January 31, 2008 (the "Extended Period Expiration Date").
2. Fixed Rent for the Extended Period: The Fixed Rent during the Extended
Period shall be as follows:
For the period of February 1, 2003 - January 31, 2004 $21.00 per rentable sq. ft. of Floor Space per annum
For the period of February 1, 2004 - January 31, 2005 $21.63 per rentable sq. ft. of Floor Space per annum
For the period of February 1, 2005 - January 31, 2006 $22.28 per rentable sq. ft. of Floor Space per annum
For the period of February 1, 2006 - January 31, 2007 $22.95 per rentable sq. ft. of Floor Space per annum
For the period of February 1, 2007 - January 31, 2008 $23.64 per rentable sq. ft. of Floor Space per annum
It is intended that the Fixed Rent shall be absolutely net return to Landlord
throughout the Extended Period, free of any expense, charge or deduction
whatsoever, with respect to the Demised Premises, the Building, or the Land,
except as may otherwise expressly be provided in the Lease.
3. Broker: Reference is made to Article 1.01 D of the Lease. The parties
agree that said provision is hereby deleted and replaced with the following:
D. Broker: Xxxxxx X. Xxxxxxx, Inc.
4. Floor Space: The rentable Floor Space of the Demised Premises is 163,537
square feet. Article 1.01 L of the Lease shall be deemed amended accordingly.
5. Guarantor: None. Article 1.01 M of the Lease is hereby deleted.
6. Landlord's Work: Landlord shall not be required to perform any work in
and to the Demised Premises. Tenant shall accept the Demised Premises in "as is"
condition. Further, Landlord shall not be obligated to make any contribution or
allowance to Tenant in connection with any work or alterations which Tenant may
choose to perform to the Demised Premises.
7. Option to Renew: Reference is made to Article 2.02 of the Lease. The
parties agree that said provision is hereby deleted and replaced with the
following:
R2. Provided there is no event of default by Tenant beyond the expiration
of any applicable notice and cure period, if any, Tenant shall have one (1)
option to extend the Term of its lease of the Demised Premises, from the date
upon which this Lease would otherwise expire, for a period of five (5) years
(herein referred to as the "First Extended Period"), upon the following terms
and conditions:
1. If Tenant elects to exercise said option, it shall do so by giving
notice of such election to Landlord on or before the date which is one (1)
year before the beginning of the First Extended Period. Tenant agrees that
it shall have forever waived its right to exercise such option if it shall
fail for any reason whatsoever to give such notice to Landlord by the time
provided herein for the giving of such notice, whether such failure is
inadvertent or intentional, time being of the essence as to the exercise of
said option.
2. If Tenant elects to exercise said option, the Term shall be
automatically extended for the First Extended Period without execution of
an extension or renewal lease. Within ten (10) days after request of either
party following the effective exercise of such option, however, Landlord
and Tenant shall execute, acknowledge and deliver to each other duplicate
originals of an instrument in recordable form confirming that said option
was effectively exercised.
3. The First Extended Period shall be upon the same terms and
conditions as are in effect immediately preceding the commencement of the
First Extended Period; provided, however, that Tenant shall have no right
or option to extend the Term for any period of time beyond the expiration
of the First Extended Period and, provided further, that in the First
Extended Period the Fixed Rent shall be as follows:
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The Fixed Rent during the First Extended Period shall be at a rate
which is the greater of (i) $23.64 per rentable square foot of Floor
Space per annum, or (ii) ninety-five percent (95%) of the then
prevailing Fair Market Value ("FMV"). FMV shall be determined by
mutual agreement of the parties. If the parties are unable to agree on
the FMV within thirty (30) days of Tenant's exercise of its option,
the parties shall choose a licensed Real Estate Appraiser who shall
determine the FMV. The cost of said Real Estate Appraiser shall be
borne equally by the parties. If the parties are unable to agree on a
licensed Real Estate Appraiser within forty-five (45) days of Tenant's
exercise of its option, each party shall select one Appraiser to
appraise the FMV. All appraisals shall be rendered within thirty (30)
days of appointment of the respective Appraiser appointed under this
paragraph. If the FMV as determined by the Appraisers hired by Tenant
and Landlord differ, then the Appraisers shall select a third licensed
Real Estate Appraiser to determine FMV. Within fifteen (15) days of
the appointment, the third Real Estate Appraiser shall determine the
FMV by selecting the FMV of either of the Appraisers selected by
Tenant and Landlord; the third Real Estate Appraiser's determination
of FMV is limited to selecting the FMV of either Landlord's Appraiser
or Tenant's Appraiser.
8. Parking: Reference is made to Article 5.03 of the Lease. The parties
agree that the following sentences shall be inserted at the conclusion thereof:
"Landlord shall not assess any parking charge upon Tenant in
connection with Tenant's use of the parking facilities located on the
Land." Notwithstanding anything to the contrary contained in the
Lease, Tenant shall have the right to use all of the available parking
spaces on the Land, and Landlord shall not have the right to reduce
the available parking spaces on the Land without Tenant's prior
consent, which consent may be withheld in Tenant's sole discretion.
Further, notwithstanding anything contained in Article 17.03 to the
contrary, Tenant's obligation as described therein with respect to the
paved areas shall include, but not be limited to, all parking areas on
the Land.
"Landlord shall use reasonable efforts (provided same is at no cost to
Landlord not reimbursed by Tenant) to accommodate Tenant's temporary
increased parking needs during a disaster recovery situation."
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9. Operating Expenses/Real Estate Taxes: Reference is made to Article 6 of
the Lease. The parties agree that said Article 6 shall apply with respect to the
payment of Operating Expenses and Real Estate Taxes during the Extended Period.
10. Subordination: Reference is made to Article 9 of the Lease. The parties
agree that Article 9 shall be supplemented as follows:
Landlord shall deliver to Tenant, at Tenant's sole cost and expense
(not including any legal fees incurred by Landlord for Landlord's role
in connection with the procurement of any such SNDA), a subordination,
non-disturbance and attornment Agreement ("SNDA") in commercially
reasonable form acceptable to Landlord, Tenant and the party from
which the SNDA is sought, from any existing or future Superior Lessor
or Superior Mortgagee and Tenant's subordination of the Lease pursuant
to Section 9.01 is expressly contingent upon and subject to a fully
executed SNDA by Tenant, Landlord and any current Superior Lessor and
Superior Mortgagee being in full force and effect during the Term.
11. Assignment/Subletting: Reference is made to Article 11.01 of the Lease.
The following phrase shall be added at the conclusion of that provision:
Landlord may not (i) withhold its consent to any assignment or
subletting based on the identity of the proposed assignee or subtenant
provided such proposed assignee or subtenant may not be an existing
tenant of Landlord or its affiliates (in which case Landlord may
withhold its consent) and further provided any such assignee or
subtenant intends to and does use the Demised Premises for the
Permitted Uses, or (ii) impose any restriction upon Tenant in
connection with any proposed subletting as it relates to the minimum
rents to be charged by Tenant in connection with any such subletting.
In connection with any permitted assignment or sublet by Tenant,
Tenant shall be entitled to retain any fees, charges or rent paid by
the proposed assignee or subtenant, and Landlord shall have no claim
or right to any such fees, rent or proceeds from such assignment or
sublet.
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Reference is made to Article 11.07 of the Lease. The parties agree that
said provision is hereby deleted. The following provision shall replace the
existing Article 11.07:
Notwithstanding anything contained in this Lease to the contrary,
Landlord shall not be obligated to entertain or consider any request
by Tenant to consent to any proposed assignment of this Lease or
sublet of all or any part of the Demised Premises unless each request
by Tenant is accompanied by a non-refundable fee payable to Landlord
in the amount of One Thousand Dollars ($1,000.00) to cover Landlord's
administrative, legal, and other costs and expenses incurred in
processing each of Tenant's requests. Neither Tenant's payment nor
Landlord's acceptance of the foregoing fee shall be construed to
impose any obligation whatsoever upon Landlord to consent to Tenant's
request.
12. Insurance: Reference is made to Article 13.02 of the Lease. The parties
hereby agree that following provision is added at the conclusion of Article
13.02:
The certificates of insurance to be delivered to Landlord by Tenant
shall name Landlord as an additional insured and, at Landlord's
request, shall also name any Superior Lessors or Superior Mortgagees
as additional insureds, and the following phrase must be typed on the
certificate of insurance: "Xxxxx Mountain Industries, Inc., and its
respective subsidiaries, affiliates, associates, joint ventures, and
partnerships, are hereby named as additional insureds as their
interests may appear (and if Landlord has so requested, Tenant shall
include any Superior Lessors and Superior Mortgagees as additional
insured(s)). It is intended for this insurance to be primary and
non-contributing."
13. Alterations: Reference is made to Article 15 of the Lease. The parties
agree that the following provisions shall be added to that Article of the Lease:
15.03 Reference is made to Article 15.01 of the Lease. Landlord agrees
that it shall not unreasonably withhold, delay or condition its
consent to any alteration requested by Tenant. Notwithstanding
anything contained in this Article 15 to the contrary, (i) Landlord's
consent shall not be required with respect to those alterations
requested
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by Tenant which are (a) less than $100,000 in scope, and (b) do not
materially and adversely affect the structure of the Building, and (c)
do not materially and adversely affect the mechanical systems in the
Building, provided, however, except for those purely cosmetic
alterations, Tenant shall nonetheless provide Landlord with notice of
all alterations; and (ii) regardless of whether an alteration is one
which requires Landlord's consent or not, Tenant will be required to
restore the Demised Premises to the condition existing before the
alteration was implemented (and repair any resultant damage resulting
therefrom) on or prior to the expiration of the Term, subject to
reasonable wear and tear and damage by casualty and condemnation.
15.04. Landlord shall not impose any fee for review and/or approval of
plans and/or specifications for any alteration proposed by Tenant
(inclusive of any "initial improvements" [performed by Tenant at the
commencement of the Extended Period)]; (said initial improvements
sometimes hereinafter referred to as the "Tenant's Work") other than
actual and reasonable out of pocket costs incurred by Landlord.
Further, and notwithstanding anything to the contrary contained in
Article 15 of the Lease, Landlord shall not impose any fees upon
Tenant related to Landlord's oversight of any Tenant's Work or
alteration.
15.05. Notwithstanding anything to the contrary contained in the
Lease, Tenant reserves the right, without Landlord's consent but on
notice to Landlord, to designate a general contractor of its choosing
to perform Tenant's Work and/or alterations in and to the Demised
Premises. Landlord shall not be entitled to any fees for supervision
or otherwise if Tenant chooses a third party general contractor in
accordance with the preceding sentence. In the event Landlord elects
to utilize Landlord's services to perform Tenant's Work or
alterations, Landlord shall solicit competitive bids from at least
three (3) third party subcontractors and Tenant shall have the right
to review said bids. Tenant shall retain the right to designate
specific contractors from those providing bids to Landlord.
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14. Utility Vendors/Diesel Generators: Reference is made to Article 20 of
the Lease. The parties agree that the following provision shall be added to that
Article of the Lease.
20.04. Tenant may select telecommunications and utility vendors of its
choosing without approval of Landlord. Tenant shall, however, provide
Landlord with notice of same upon selection thereof.
20.05. Tenant shall have the right to install and operate diesel
generators in the Demised Premises, subject, however to Landlord's
reasonable approval concerning the means and methodology of such
installation, the location of any such installation, and the means and
methodology of the removal of such generators at the expiration of the
Term. Tenant shall be responsible to maintain, at Tenant's sole cost
and expense, any such generators.
15. Access: Reference is made to Article 21 of the Lease. The parties agree
that the following provision shall be added to that Article of the Lease.
21.07. Tenant shall have access to the Demised Premises and parking
facilities on a 24 hour, 7 day per week basis.
16. Holdover: Reference is made to Article 26.02 of the Lease. The parties
agree that said provision shall be deleted in its entirety and replaced with the
following:
26.02. If Tenant remains in possession of the Demised Premises after the
expiration of the Term, Tenant shall be deemed to be occupying the Demised
Premises as a Tenant from month to month at the sufferance of Landlord subject
to all of the provisions of this Lease except that the monthly Rent shall be (i)
for the period of the holdover commencing on the Extended Period Expiration Date
and continuing for sixty (60) days, a monthly amount equal to the then current
monthly Fixed Rent (plus Tenant shall also pay its Operating Expenses, Real
Estate Taxes and all other Additional Charges) (said sixty (60) day period
hereinafter referred to as the "First Holdover Period"); (ii) for the holdover
period commencing on the expiration of the First Holdover Period and continuing
through the date which is one hundred and eighty (180) days from the Extended
Period Expiration Date (the "Second Holdover Period") a monthly amount which is
one hundred fifty percent (150%) of Tenant's then current monthly Fixed Rent
(plus Tenant shall also pay its Real Estate Taxes, Operating Expenses, and all
other Additional Charges); and (iii) for the holdover period commencing on the
expiration of the Second Holdover Period through the balance of any holdover
period the monthly Rent shall be twice the monthly Rent in effect during the
last month of the Term (inclusive of Fixed Rent, Real Estate Taxes and Operating
Expenses). Nothing herein contained shall be
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construed, nor shall same constitute a waiver by Landlord with respect to its
rights to pursue any and all remedies to which it is entitled pursuant to the
Lease and by law as a result of Tenant's continued occupancy of the Premises
beyond the Extended Period Expiration Date.
17. Default: Reference is made to Article 27.02 of the Lease. Landlord and
Tenant hereby agree that an abandonment of the Demised Premises by Tenant shall
not be deemed a default of the Lease provided Tenant continues to comply with
all obligations under the Lease, including, but not limited to, the payment of
all Rent, during any such period of abandonment. Tenant shall notify Landlord of
any intended abandonment of the Demised Premises.
18. Tenant's Right to Cure: Reference is made to Article 32 of the Lease.
The parties agree that the following provision shall be added to that Article of
the Lease.
32.02. If Landlord shall default in the performance of any of
Landlord's obligations under this Lease, Tenant, without thereby
waiving such default, may (but shall not be obligated to) perform the
same for the account and at the expense of Landlord, without notice in
a case of emergency, and in any other case only if such default
continues after the expiration of thirty (30) days from the date
Tenant gives Landlord notice of the default. Charges for any expenses
incurred by Tenant in connection with any such performance by it for
the account of Landlord shall be due and payable by Landlord upon
demand.
19. Broker: Reference is made to Article 33.01 of the Lease. The parties
agree that said provision shall be deleted and replaced with the following:
33.01. Landlord and Tenant represent that no Broker except the Broker
was instrumental in bringing about or consummating this Third Lease
Modification Agreement and that Landlord and Tenant had no
conversations or negotiations with any Broker except the Broker
concerning this Third Lease Modification Agreement. Tenant agrees to
indemnify and hold harmless Landlord against and from any claims for
any brokerage commissions and all costs, expenses and liabilities in
connection therewith, including without limitation attorney's fees and
expenses, arising out of any conversations or negotiations had by
Tenant with any Broker other than the Broker related to this Third
Lease Modification Agreement. Landlord agrees to indemnify and hold
harmless Tenant against and from any claims
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for any brokerage commissions and all costs, expenses and liabilities
in connection therewith, including without limitation attorney's fees
and expenses, arising out of any conversations or negotiations had by
Landlord with any broker other than the Broker related to this Third
Lease Modification Agreement. Landlord shall pay any brokerage
commissions due the Broker with respect to this Third Lease
Modification Agreement pursuant to a separate agreement between
Landlord and the Broker.
20. Signage: Reference is made to Article 38.09 of the Lease. The parties
agree that the following sentence shall be added to that provision of the Lease:
Notwithstanding the foregoing, Tenant shall have the right to create
or modify its existing monument signage at the Building subject to
applicable Legal Requirements and Landlord's reasonable approval
concerning any such modification to and/or creation of such signage.
21. Rooftop Access: Subject to Landlord's reasonable approval rights Tenant
may install a satellite and/or microwave antenna for the reception and
transmission of electromagnetic signals on the roof of the Building. Tenant
shall be obligated to deliver to Landlord plans and specifications with respect
to such satellite and/or microwave antenna for Landlord's reasonable approval
prior to installation thereof. Tenant shall be responsible for the cost of the
installation of any satellite and/or microwave antenna as well as the cost of
the maintenance of such satellite and/or microwave antenna and the connections
related thereto. Tenant shall also be responsible for the cost of repairs and/or
replacements to the roof and roof membrane which are required as a result of (i)
the installation of the satellite and/or microwave antenna, (ii) the maintenance
of the satellite or microwave antenna, and (iii) removal of the satellite and/or
microwave antenna at the expiration of the Term and Tenant shall perform all
repairs and replacements required in connection therewith. Tenant agrees to
indemnify Landlord for any claims, loss, damage, or expense associated with the
installation, operation and/or maintenance of, and removal of any such satellite
and/or microwave antenna, except to the extent caused solely by Landlord's
negligence or willful act.
22. Mobile Data Center: Tenant shall have the right during a disaster
recovery and/or demonstration or testing event to park its Mobile Data Center
vehicles at a mutually agreed upon location on the Land. Tenant shall have the
right to install a "hitching post" on the Land to connect the Mobile Data Center
to the Premises.
23. Rider: The parties agree that all provisions of that certain Rider to
Lease Agreement dated November 16, 1987 are hereby deleted.
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24. Second Rider: The parties agree that all provisions of that certain
Second Rider to Lease Agreement dated November 16, 1987 are hereby deleted.
25. Memorandum of Lease: Article 37 of the Lease is hereby amended to
provide that at Tenant's request, Landlord shall execute and deliver to Tenant a
Memorandum/Short Form of Lease in recordable form which document is subject to
Landlord's reasonable approval and Tenant shall be permitted to record such
Memorandum/Short Form of Lease against the Land and Tenant shall pay the
recording costs thereto.
26. Except as provided herein, all of the terms and conditions of the Lease
dated as amended above are in full force and effect and are confirmed as if
fully set forth herein.
IN WITNESS WHEREOF, the parties hereto have caused this Lease Modification
Agreement to be duly executed as of the day and year first above written.
5851 WEST SIDE ASSOCIATES, L.L.C.
("Landlord")
BY: XXXXX MOUNTAIN DEVELOPMENT CORP.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------
Xxxxx X. Xxxxxxxx
Executive Vice President
SUNGARD RECOVERY SERVICES LP
("Tenant")
By: /s/ Xxxx X. Xxxxxxxx, Xx.
---------------------------------
Name: Xxxx X. Xxxxxxxx, Xx.
Title: Assistant Controller
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