THIRD AMENDMENT TO LEASE AGREEMENT
Exhibit 10.16
THIRD AMENDMENT TO LEASE AGREEMENT
THIS THIRD AMENDMENT TO LEASE AGREEMENT (the “Third Amendment”) is entered into effective this
23 day of November, 2009, by and between:
410 COMMERCE, L.L.C., a New Jersey Limited Liability Company,
located at 00 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000 (the
“Landlord”);
- AND -
SUNGARD AVAILABILITY SERVICES LP, a Pennsylvania limited
partnership, located at 000 X. Xxxxxxxxxx Xxxx, Xxxxx, Xxxxxxxxxxxx
00000 (the “Tenant”).
R E C I T A L S
A. Landlord and Tenant are parties to a certain Lease Agreement dated January 19, 2005, as
amended by a certain First Amendment to Lease Agreement dated November 29, 2005 and a certain Third
Amendment to Lease Agreement dated December 17, 2008, respecting the premises owned by Landlord and
commonly known as 000 Xxxxxxxx Xxxxxxxxx, Xxxxxxxxx, Xxxxxx Xxxxxx, Xxx Xxxxxx (the “Landlord’s
Premises”). The said Lease Agreement, First Amendment to Lease Agreement and Third Amendment to
Lease Agreement are sometimes hereinafter collectively referred to as the “Lease.”
B. The Landlord and Tenant wish to extend the term of the Lease for a period of five (5) years
from October 1, 2015 to September 30, 2020 and to replace the provisions of the Lease regarding
Tenant’s options to renew with new provisions.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged by the parties, and the parties intending to be legally bound by the terms of
this Third Amendment, the parties agree as follows:
1. Incorporation of Recitals; Definitions of Terms.
1.1. The Recitals set forth above are incorporated herein by reference as if set forth herein
at length, and are made a part of this Third Amendment.
1.2. All capitalized terms set forth in this Third Amendment, unless otherwise specifically
defined in this Third Amendment, shall be defined as provided in the Lease.
2. Extension of Lease Term.
2.1. The Termination Date of the Lease as to the entire Demised Premises is hereby extended
from September 30, 2015, to September 30, 2020. The period from the Commencement Date stated in
the Lease through September 30, 2020 (and, if the option(s) to renew as described in Paragraph 3
below is/are exercised, through September 30, 2025, and September 30, 2030, respectively), is
referred to as the Term.
3. Fixed Rent.
3.1. Commencing on October 1, 2009 and for the balance of the Term (i.e., through
September 30, 2020), the Tenant shall pay Fixed Rent in the amounts set forth on Schedule “C”
annexed hereto and made a part hereof (which is intended to and shall replace Schedule “C” to the
Lease Agreement). Schedule “C” sets forth the agreed upon Fixed Rent due from the Tenant to the
Landlord from the Effective Date of this Third Amendment through the Termination Date (as provided
for herein).
4. Options to Renew.
4.1. Section 40 of the original Lease is deleted in its entirety and is superseded and
replaced by the provisions set forth in this Section 4 as set forth below.
4.2. Tenant shall have the right to renew its Lease for the Demised Premises for two (2)
periods of five (5) years each by providing Landlord with not less than twelve (12) calendar months
written notice prior to the expiration of the then current term. (For purposes hereof, the
foregoing renewal terms shall be referred to as the “First Renewal Option Period” and the “Second
Renewal Option Period”, respectively.) TIME FOR NOTICE OF EXERCISE OF TENANT’S OPTIONS IS HEREBY
DECLARED TO BE OF THE ESSENCE.
4.2.1. The Fixed Rent for First Renewal Option Period (i.e., October 1, 2020, to
September 30, 2025), if exercised, shall be in accordance with Schedule “C-1” annexed hereto.
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4.2.2. The Fixed Rent for the Second Renewal Option Period (i.e., October 1, 2025, to
September 30, 2030), if exercised, shall be in accordance with Schedule “C-1” annexed hereto.
4.3 Except as to the amount of Fixed Rent, all of the other terms, covenants, conditions and
agreements set forth in the Lease as amended by this Third Amendment shall apply to all renewal
terms; except that there shall only be two (2) options to renew as set forth in this Section 5.
5. Miscellaneous.
5.1. Except as modified by this Third Amendment, all of the terms, covenants, conditions,
provisions and agreements set forth in the Lease are incorporated herein by reference and continued
in full force and effect. To the extent of any conflict between the provisions of the Lease and
this Third Amendment, the provisions of this Third Amendment shall prevail.
5.2. This Third Amendment shall be construed and enforced in accordance with the laws of the
State of New Jersey. Any litigation arising under or respecting the actions of the parties taken
pursuant to the terms of this Third Amendment shall be solely and exclusively venued in the federal
or state courts of New Jersey.
5.3. This Third Amendment constitutes the entire understanding of the parties with respect to
the extension of the term of the Lease, and there are no representations, warranties, or agreements
other than those expressly set forth herein.
5.4. A modification or waiver of any of the provisions of this Third Amendment shall be
effective only if made in writing and executed with the same formality as this Third Amendment.
The failure of either party to insist upon strict performance of any of the provisions of this
Third Amendment shall not be construed as a waiver of any subsequent default of the same or similar
nature.
5.5 This Third Amendment may be executed in any number of counterparts all of which taken
together shall constitute one and the same instrument, and any of the parties or signatories hereto
may execute this Third Amendment by signing any such counterpart.
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IN WITNESS WHEREOF, the parties have hereto have executed this Third Amendment as of the day
and year first above written.
WITNESS:
| 410 COMMERCE, L.L.C. |
|||||
| /s/ Xxxxxx Xxxxx | |||||
| By: | /s/ Xxxxxx Xxxxx | ||||
| Xxxxxx Xxxxx, Manager | |||||
| SUNGARD AVAILABILITY SERVICES LP |
|||||
| /s/ Xxxxxxxx Xxxxx | |||||
| By: | /s/ Xxxxxx X. XxXxxxxx | ||||
| Xxxxxx X. XxXxxxxx, | |||||
| Senior Vice President and CFO | |||||
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CONSENT AND ACKNOWLEDGMENT
SUNGARD DATA SYSTEMS INC., a Delaware corporation, the ultimate parent of SunGard Availability
Services LP, hereby executes this instrument for purposes of acknowledging that its obligations
under a certain Unconditional Guaranty of Payment dated December ___, 2008, and executed on
December 16, 2008 relating to that certain Lease Agreement between 410 Commerce, LLC, as landlord,
and SunGard Availability Services LP, as tenant, dated January 19, 2005, as amended by that certain
First Amendment to Lease Agreement dated November 29, 2005 and that Second Amendment to Lease
Agreement dated December 17, 2008 , with respect to certain premises located at 000 Xxxxxxxx
Xxxxxxxxx, in the Borough of Carlstadt, County of Bergen, and State of New Jersey, shall remain in
full force and effect, and that the definition of the “Lease” therein shall be expanded to include
that certain Third Amendment to Lease Agreement dated as of even date herewith, to which this
Consent and Acknowledgment is attached.
| SUNGARD DATA SYSTEMS INC. |
|||||
| /s/ Xxxxxxxx Xxxxx | |||||
| By: | /s/ Xxxxxxx X. Xxxxx | ||||
| Xxxxxxx X. Xxxxx, | |||||
| Senior Vice President and CFO | |||||
| November 23, 2009 | |||||
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Schedule C
Fixed Rent for Units B, C and D From and After October 1, 2015 for Balance of Term
Fixed Rent for Units B, C and D From and After October 1, 2015 for Balance of Term
Total Square Footage
|
146,285 |
| Period | Annual Rent PSF | Total Fixed Rent | Monthly Fixed Rent | |||||||||
October 1, 2015 to September 30, 2016 |
$ | 20.10 | $ | 2,940,328.50 | $ | 245,027.38 | ||||||
October 1, 2016 to September 30, 2017 |
$ | 20.70 | $ | 3,028,538.36 | $ | 252,378.20 | ||||||
October 1, 2017 to September 30, 2018 |
$ | 21.32 | $ | 3,119,394.51 | $ | 259,949.54 | ||||||
October 1, 2018 to September 30, 2019 |
$ | 21.96 | $ | 3,212,976.34 | $ | 267,748.03 | ||||||
October 1, 2019 to September 30, 2020 |
$ | 22.62 | $ | 3,309,365.63 | $ | 275,780.47 | ||||||
| Total Fixed Rent for Entire Demised Premises From October 1, 2015 Through the Extended Term | $ | 15,610,603.33 | ||||||||||
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Schedule “C-1”
Schedule of Fixed Rent for First Renewal Option Period
| Period | Annual Rent PSF | Total Fixed Rent | Monthly Fixed Rent | |||||||||
October 1, 2020 to September 30, 2021 |
$ | 24.47 | $ | 3,579,926.85 | $ | 298,327.24 | ||||||
October 1, 2021 to September 30, 2022 |
$ | 25.21 | $ | 3,687,324.66 | $ | 307,277.05 | ||||||
October 1, 2022 to September 30, 2023 |
$ | 25.96 | $ | 3,797,944.40 | $ | 316,495.37 | ||||||
October 1, 2023 to September 30, 2024 |
$ | 26.74 | $ | 3,911,882.73 | $ | 325,990.23 | ||||||
October 1, 2024 to September 30, 2025 |
$ | 27.54 | $ | 4,029,239.21 | $ | 335,769.93 | ||||||
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Schedule “C-2”
Schedule of Fixed Rent for Second Renewal Option Period
| Period | Annual Rent PSF | Total Fixed Rent | Monthly Fixed Rent | |||||||||
October 1, 2025 to September 30, 2026 |
$ | 28.37 | $ | 4,150,116.39 | $ | 345,843.03 | ||||||
October 1, 2026 to September 30, 2027 |
$ | 29.22 | $ | 4,274,619.88 | $ | 356,218.32 | ||||||
October 1, 2027 to September 30, 2028 |
$ | 30.10 | $ | 4,402,858.48 | $ | 366,904.87 | ||||||
October 1, 2028 to September 30, 2029 |
$ | 31.00 | $ | 4,534,944.23 | $ | 377,912.02 | ||||||
October 1, 2029 to September 30, 2030 |
$ | 31.93 | $ | 4,670,992.56 | $ | 389,249.38 | ||||||
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Schedule “C-2”
Schedule of Fixed Rent for Third Renewal Period
| Xxxx X | Xxxx X | Xxxx X | TOTAL | |||||||||||||||||||||||||||||
| Period | Monthly | Annual | Monthly | Annual | Monthly | Annual | Monthly | Annual | ||||||||||||||||||||||||
10/01/25-09/30/26 |
$ | 230,613.35 | $ | 2,767,360.23 | $ | 60,454.66 | $ | 725,455.91 | $ | 152,211.81 | $ | 1,826,541.68 | $ | 443,279.82 | $ | 5,319,357.82 | ||||||||||||||||
10/01/26-09/30/27 |
$ | 237,531.75 | $ | 2,850,381.03 | $ | 62,268.30 | $ | 747,219.59 | $ | 156,778.16 | $ | 1,881,337.93 | $ | 456,578.21 | $ | 5,478,938.55 | ||||||||||||||||
10/01/27-09/30/28 |
$ | 244,657.71 | $ | 2,935,892.46 | $ | 64,136.35 | $ | 769,636.17 | $ | 161,481.51 | $ | 1,937,778.07 | $ | 470,275.57 | $ | 5,643,306.70 | ||||||||||||||||
10/01/28-09/30/29 |
$ | 251.997.44 | $ | 3,023,969.24 | $ | 66,060.44 | $ | 792,725.26 | $ | 166,325.95 | $ | 1,995,911.41 | $ | 484,383.83 | $ | 5,812,605.91 | ||||||||||||||||
10/01/29-09/30/30 |
$ | 259,557.36 | $ | 3,114,688.31 | $ | 68,042.25 | $ | 816,507.02 | $ | 171,315.73 | $ | 2,055,788.76 | $ | 498,915.34 | $ | 5,986,904.08 | ||||||||||||||||
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